/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180525.mbx C L A S S A C T I O N R E P O R T E R Friday, May 25, 2018, Vol. 20, No. 105 Headlines 300 WEST 46TH ST: "Gutierrez" Suit Seeks Minimum & OT Wages 374 FOOD: Court Enters Findings in "Castillo" FLSA/NYLL Suit 4175 LLC: "Ha" Class Conditional Certification Bid Denied ALLCONNECT INC: "McKenzie" Suit Moved to E.D. Kentucky ALLEN COUNTY, IN: Court Grants Bid to File FAC in "Wilson" AMERICAN AIRLINES: "Schultz" Suit Moved to S.D. Florida AMBI PAVING: Martinez Seeks Unpaid Overtime Wages under FLSA AMN HEALTHCARE: Fails to Pay Minimum & OT Wages, Posephny Says AMTRUST FINANCIAL: Shust Balks at Merger Evergreen Deal ARTISANAL BREWERS: Fails to Pay Minimum & OT Wages, Hopkins Says APPLE HOSPITALITY: $5.5MM Deal in "Moses" Has Final Approval APPLE INC: "Orshan" Suit Over Misleading Product Packaging Junked APRO LLC: Correa Seeks Unpaid Overtime Wages under Labor Code ARKOFF OPERATING: $55K Settlement in "Feliz" FLSA Suit Approved BA-KER TANK: Wilson Seeks Unpaid Overtime Compensation under FLSA BACCI CAFE: "Villegas" Suit Seeks Minimum & OT Wages under FLSA BIOGEN INC: Wins Bid to Dismiss "Metzler" Securities Suit BLACKMON MOORING: "Smith" Suit Moved to Northern Dist. of Texas BP EXPLORATION: Porto Castelo Loses Bid to Extend Time Upheld CDK GLOBAL: Wants Antitrust Suits Included in MDL CHANGE HEALTHCARE: "Martinez" Suit Moved to S.D. Florida CLARINS U.S.A.: Website Not Accessible to Blind, Wu Claims CSX INTERMODAL: Court Denies Bid to Strike in "Valadez" Suit DANELL CUSTOM: July 11 Final Fairness Hearing on "Rodriguez" Deal DIAGEO-GUINNESS USA: Court Narrows Claims in "O'Hara" Suit EAGLE MATERIALS: Parties in Wallboard Suit Reached Settlement EAGLE MATERIALS: Discovery Ongoing in Homebuilders' Suit EBIX INC: Trial in Stockholder Lawsuit Scheduled for August 2018 EGALET CORP: Still Defends Combined Pennsylvania Class Actions ELIZABETH ARDEN: Website Not Accessible to Blind, Wu Claims ENBRIDGE ENERGY: Trial in Delaware Suit Set for 2Q 2019 ENBRIDGE INC: Agrees to Pay US$175,000 for Fees and Expenses ENDOLOGIX INC: "Ortiz" Settlement Has Final Approval ENERGY TRANSFER: Still Defends Amended Regency Merger Complaint ENERGY TRANSFER: Still Defends Issuance Litigation in Delaware ENVISION HEALTHCARE: Still Defends Securities Class Lawsuits ESSA BANCORP: Awaits Court's Final OK on UCC Settlement ESSA BANCORP: Subsidiary Still Defends Suit over RESPA Breaches EZCORP INC: Securities Suit in Texas in Discovery Stage FAA SERRAMONTE: Luu Sues over Incomplete Car Accessories FAIRMOUNT SANTROL: Faces 4 Putative Class Actions on Merger Deal FIRST BANCORP: Defendants to Seek Supreme Court Review FLEETCOR TECHNOLOGIES: Still Defends Shareholder Class Lawsuit FLORIDA COURIER: Sobrinho Seeks Unpaid Overtime Pay under FLSA FOREMOST INSURANCE: "Scherrer" Remains in Missouri District Ct. FRANKLIN RESOURCES: Discovery Continues in "Cryer" Suit FRANKLIN RESOURCES: "Fernandez" Suit Underway GENIE ENERGY: "Ferrare" Parties Await Report over Settlement GENIE ENERGY: Parties Await Recommendation on "McLaughlin" Pact GENIE ENERGY: Awaits Final Court OK on "Aks" Accord GENIE ENERGY: Estimated Settlement Payments Reduced by $1.4-Mil. GLOBAL EAGLE: Notice of Appeal Filed in Hart Class Action GOLDEN ENTERTAINMENT: Employee Class Suits in Nevada Underway GOLDEN ENTERTAINMENT: Faces Suit over Transient Lodging Tax GREAT SOUTH TIMBER: "Roberts" Suit Seeks Overtime Pay under FLSA GREATS BRAND: Youn Sues over Telemarketing Text Messages GREEN DOT: Still Defends Class Suits over Service Disruptions GROUPON INC: 4th Cir. Junks Appeal on "Keena" Suit Dismissal HC2 HOLDINGS: Oct. 2019 Trial Set in CGI Producer Litigation HC2 HOLDINGS: Explores Potential Settlement in Schuff Litigation HUGOTON ROYALTY: Final Allocation Plan in Royalty Suit Due July IAC/INTERACTIVECORP: June 19 Oral Arguments in Securities Suit IAC/INTERACTIVECORP: Calif. High Court Reopens Tinder Suit ICONIX BRAND: Motion to Dismiss N.Y. Class Lawsuit Still Pending ICU MEDICAL: Hospira Units Defend Lawsuit on IV Saline Solution ILLINOIS: Court Enters Case Management Orders in "Coleman" Suit IMPAC MORTGAGE: Trial in "Marentes" Class Suit Set for June 2018 IMPAX LABORATORIES: Solodyn End-Payor Pact Gets Preliminary OK IMPAX LABORATORIES: Opana ER(R) Antitrust Class Actions Ongoing IMPAX LABORATORIES: Still Defends Generic Drug Pricing Suit IMPAX LABORATORIES: Time to Appeal AWP Case Dismissal Has Lapsed IMPAX LABORATORIES: Still Defends Medicine To Go's TCPA Lawsuit IMPAX LABORATORIES: Still Faces Securities Class Action in N.Y. IMPAX LABORATORIES: Class Suits on Amneal Combination Dismissed IMPAX LABORATORIES: Discovery Ongoing in Calif. Wage & Hour Suit IMPAX LABORATORIES: Faces American Resources Suit over Opioids INSYS THERAPEUTICS: Faces Putative Class Suit on Opioid Epidemic INSYS THERAPEUTICS: Still Defends "Di Donato" Class Action INSYS THERAPEUTICS: Motion to Dismiss NY Class Suit Pending INTERCEPT PHARMACEUTICALS: Still Faces "DeSmet" Suit in S.D.N.Y. IOVANCE BIOTHERAPEUTICS: Securities Class Lawsuit Still Ongoing J ALEXANDERS: "Elstein" Shareholder Suit Still Pending J2 GLOBAL: Appeal from Nixed Davis Neurology Suit Still Pending JAMAICA HOSPITAL: Court Denies Certification of "Hawkins" Class JOHNNIE'S ON THE SIDE: Fails to Pay Wages, Casanova Says JOHNSON & JOHNSON: Ct. Vacates Pending Motions in "Martinelli" JOHNSON & JOHNSON: Court Denies Bid to Dismiss "Bowling" Suit JONES FINANCIAL: Bid to Dismiss Retirement Plan Lawsuit Denied JONES FINANCIAL: Court Approves "White" Class Suit Settlement JONES FINANCIAL: "Bland" Wage-and-Hour Class Action Underway JONES FINANCIAL: Subsidiary Faces Securities Class Suit LITHIA MOTORS: Court Narrows Claims in 3rd Amended "Mendoza" Suit LIVINGSTON COUNTY, MI: "Carr" Suit Seeks to Certify FLSA Class L'OREAL USA: Moved "Wallace" Suit to E.D. California MAGICJACK VOCALTEC: Bid to Dismiss "Freedman" Suit Still Pending MAGICJACK VOCALTEC: 3 Merger-Related Securities Suits Dismissed MATIAN LAW: Ramirez & Anguiano Sue for Legal Malpractice MCCLATCHY COMPANY: Appeal in Fresno Bee Lawsuit Still Pending MCGOWAN ENTERPRISES: $1.1MM Attys' Fee Awarded in Fairway Suit MDL 2048: Court Denies Bid to File 1st Amended Antitrust Suits MEN'S WEARHOUSE: Smith Sues over $20 Late Return Fees MICROSOFT CORP: Portions of "Moussouris" Class Cert. Bid Unsealed MILLENNIUM HEALTH: Bid to Certify "Mauthe" Suit Denied MULTICARE HEALTH: "Johnson" Suit Moved to W.D. Washington NASSAU COUNTY, NY: Nov. 24 Claims Filing in Strip Search Cases NISSAN NORTH: 6-Mo. Extension in "Tamara" Discovery Deadlines OHIO REGIONAL SEWER: "Rice" Suit Seeks Overtime Pay under FLSA OSAKA STEAKHOUSE: "Zhang" Suit Seeks Unpaid Wages under FLSA PECO FOODS: Class in "Nicks" Suit Has Conditional Certification PETMED EXPRESS: Animal Medical Center Suit Voluntarily Dismissed PETMED EXPRESS: Class Suit in Florida Voluntarily Dismissed PINNACLE FOODS: Court Denies Bid to Dismiss "Korte" Suit POLICEMEN'S ANNUITY: De Jesus et al. Sue over Pension PORTFOLIO RECOVERY: Can Compel Doc Production in "Bereket" Suit QUALCOMM INC: Appeal Filed in 3226701 Canada Suit QUALCOMM INC: Bid to Dismiss Amended Complaint Still Pending QUALCOMM INC: Continues to Defend Consumer Class Action QUALCOMM INC: Four Consumer Class Suits Filed in Canada RESOURCE MS: Dismissal of "Crossman" Suit Affirmed R.C. WENDT: Fails to Pay Minimum & Overtime Wages, Cuadras Says ROADRUNNER TRANS: Faces Securities Class Suit in Wisconsin SILO EAST: "Quiroz" Suit Seeks Unpaid Minimum Wages under FLSA SIRIUS XM: "Buchanan" TCPA Class Action Underway SQUARETRADE INC: "Swinton" Suit Moved to Southern Dist. of Iowa TAXI COMPUTER: Cal. App. Affirms Summary Judgment in "Demeter" TECHNICOLOR USA: "Sharp" Suit Transferred to W.D. Tennessee TENNECO INC: Still Defends Suit over Anticompetitive Conduct TRANSUNION RENTAL: June 4 Deadline to File Bid to OK Settlement TROY CONSTRUCTION: Court Grants Bid to Dismiss "Stone" Wage Suit UNITED INDUSTRIES: Bid to Certify "Arthur" Class Suit Denied VROOM INC: Wins Summary Judgment in "Edelsberg" TCPA Suit WALLYPARK AIRPORT: Tucker Seeks Unpaid Wages under Labor Code WEBSTAURANT STORE: "Rogers" Suit Seeks Overtime Pay under FLSA WESTERN STATES: 9th Cir. Flips Summary Judgment in Antitrust Suit Asbestos Litigation ASBESTOS UPDATE: SPX Had $641.2MM Asbestos Liability at Dec. 31 ASBESTOS UPDATE: Alleghany Has $154-Mil. Net Loss, LAE Reserves ASBESTOS UPDATE: AMETEK Still Defends Asbestos Suits at Dec. 31 ASBESTOS UPDATE: CenterPoint Energy Expects More Asbestos Claims ASBESTOS UPDATE: WR Grace Had $25.8-Mil. Libby Costs at Dec. 31 ASBESTOS UPDATE: Curtiss-Wright Still Defends Suits at Dec. 31 ASBESTOS UPDATE: Harsco Corp. Had 17,144 PI Lawsuits at Dec. 31 ASBESTOS UPDATE: CenterPoint, Units Still Face Suits at Dec. 31 ASBESTOS UPDATE: Avon Defends Talc-Related Lawsuits at Dec. 31 ASBESTOS UPDATE: Standard Motor Had $33.4MM Liability at Dec. 31 ASBESTOS UPDATE: Standard Motor Had 1,530 Fibro Cases at Dec. 31 ASBESTOS UPDATE: Denial of Cuellar's Bid to Withdraw Plea Upheld ASBESTOS UPDATE: ZAIC Has Right to Seek Contribution from INA ASBESTOS UPDATE: Judge OKs Application of Maine Law in "Burleigh" ASBESTOS UPDATE: "Mikelsen" Discovery Deadline Moved to June 13 ASBESTOS UPDATE: Co. No Duty to Protect from Secondary Exposure ASBESTOS UPDATE: Claire's Ordered to Stop Selling Tainted Make-Up ASBESTOS UPDATE: Report Finds Asbestos in Philly Schools ASBESTOS UPDATE: Company Fined for Breach of Asbestos Notice ASBESTOS UPDATE: Asbestos Found in Kusu Island Lagoon, Beach ASBESTOS UPDATE: Co. Fined EUR50K for Exposing Workers ASBESTOS UPDATE: Asbestos Found in Dunedin Mud Tanks ASBESTOS UPDATE: Exposure Allegations at Gov't Facility Confirmed ASBESTOS UPDATE: Probe Launched After Refinery Asbestos Exposure ASBESTOS UPDATE: Qld Carpenter Sues James Hardie for $6MM ASBESTOS UPDATE: Medical Supplies Storage Closes Over Asbestos ASBESTOS UPDATE: Asbestos Found at Perth Development Site ASBESTOS UPDATE: Asbestos Found at Foreshore Redevelopment ASBESTOS UPDATE: "Latiolais" Remanded to La. State Court ASBESTOS UPDATE: Asbestos Firms Hope to Continue $117MM Streak ASBESTOS UPDATE: Owners Foot $200K Bill at Ainslie Clean-Up ASBESTOS UPDATE: Judge Denies Attempt to Stop Mesothelioma Suit ********* 300 WEST 46TH ST: "Gutierrez" Suit Seeks Minimum & OT Wages ----------------------------------------------------------- GERARDO TEPOX GUTIERREZ (A/K/A ALEX TEPOX), LORENZO ANTONIO BRAVO BRAVO, and SANTOS TARAX, individually and on behalf of others similarly situated, the Plaintiffs, v. 300 WEST 46TH ST. CORP. (D/B/A BRASSERIE ATHENEE), SOTIRIOS KARAMOUZIS, and CHRISTOS DOE, the Defendants, Case No. 1:18-cv-04239 (S.D.N.Y., May 11, 2018), seeks to recover unpaid minimum and overtime wages, liquidated damages, interest, attorneys' fees and costs, pursuant to the Fair Labor Standards Act of 1938, and the New York Labor Law. According to the complaint, the Plaintiffs are both current and former employees of Defendants, which own, operate, or control a Greek restaurant, located at 300 West 46th Street, New York, New York 10036 under the name "Brasserie Athenee". The Plaintiffs have been employed as busboys and food runners. However, they have been required to spend a considerable part of their work day performing non-tipped duties, including but not limited to buying things for the store, buying lottery tickets and cigarettes for the owner, stocking wine in the basement, bringing things up from the basement for the bartender and cooks, cleaning the tables, utensils, the floors, and the bathrooms, setting up the tables, bringing up the cups, bringing water to the tables, making coffee, folding napkins, performing inventory, stocking deliveries and getting change from a nearby deli. The Plaintiffs have worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that they have worked. Rather, the Defendants have failed to maintain accurate recordkeeping of the hours worked, have failed to pay the Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Furthermore, Defendants have repeatedly failed to pay Plaintiffs wages on a timely basis.[BN] Attorneys for Plaintiffs: MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: Faillace@employmentcompliance.com 374 FOOD: Court Enters Findings in "Castillo" FLSA/NYLL Suit ------------------------------------------------------------ In the case, DOMINGO CASTILLO MARCELINO, Plaintiff, v. 374 FOOD, INC. d/b/a TRIBECA BAGELS, TIRAN TSADOK, and HAYIM TSADOK, Defendants, Case No. 16 Civ. 6287 (KPF) (S.D. N.Y.), Judge Katherine Polk Failla of the U.S. District Court for the Southern District of New York has entered her Opinion that constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52 after a bench trial held on July 19, 2017. The Plaintiff, a former employee of Tribeca Bagels, sued the Defendants for wage and hour and recordkeeping violations of the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"). He Plaintiff filed his Complaint on Aug. 9, 2016. The crux of the Plaintiff's wage and hour violations was contained in his allegations that from approximately Sept. 2, 2015 until on or about April 2016, Castillo worked from approximately 5:00 a.m. until on or about 5:15 p.m. four days a week and from approximately 5:00 a.m. until on or about 5:00 p.m. two days a week (typically 73 hours per week). Throughout his employment with the Defendants, he was paid his wages in cash. From approximately Sept. 2, 2015 until on or about April 2016, he was paid a fixed salary of $100 per day. His wages did not vary regardless of how many additional hours he worked in a week. The Plaintiff also claimed that the Defendants did not keep track of his actual hours worked, and that he had not been provided with rate of pay or wage statements. Further, as violative general employment practices, the Plaintiff alleged that the Defendants failed to pay the minimum wage to which he was entitled, overtime wages, and spread-of-hours pay, and, further, that they willfully evaded recordkeeping and notice requirements. The Defendants filed their answer on Jan. 1, 2017. Of note, the Defendants denied that the Plaintiff was an employee of Tiran and Hayim Tsadok; denied that the Plaintiff was employed by the Defendants for the entirety of the time period between Sept. 2, 2015, and April 20, 2016; and raised an affirmative defense that the FLSA did not apply because the Defendants' annual revenues did not exceed $500,000. An initial pretrial conference was held in the matter on Jan. 4, 2017. At the beginning of the conference, the counsel for the Plaintiff disclaimed any intention to proceed as a collective or class action. That day, the Court endorsed the case management plan submitted by the parties, and also issued an order referring the case to then-United States Magistrate Judge Andrew J. Peck for a settlement conference. A settlement conference was held before Judge Peck on March 8, 2017. It failed, but was followed by an order referring the case to Judge Peck for general pretrial purposes. Three weeks later, after a status conference on March 28, 2017, Judge Peck issued an order referring the matter to the District's mediation program. A mediation was scheduled for May 18, 2017, but did not in fact take place. Given the failure of several alternative dispute resolution mechanisms, the Court held a pretrial conference on May 26, 2017, to schedule a trial in the matter. On June 7, 2017, it issued an order scheduling trial for July 19, 2017. The Counsel for the Plaintiff filed a proposed pretrial statement and motion in limine on June 21, 2017. The Counsel for the Defendants filed their corresponding submissions on June 22, 2017, and June 27, 2017. During this time period, the defense counsel raised concerns about ex parte communications and contemplated a motion for recusal. The motion was not filed, and the Court addressed the matters at the final pretrial conference on July 5, 2017. At the same conference, the counsel for the Defendants confirmed that they would be calling witnesses only for impeachment purposes. A one-day bench trial on the Plaintiff's claims was held on July 19, 2017. Judge Failla has considered the parties' submissions, but has concluded that it is easier to summarize the testimony at trial and explain the degree to which she credits, or discredits, that testimony. First, the Judge finds that the Plaintiff was employed as a kitchen worker at Tribeca Bagels from Feb. 15, 2016, until his termination on March 18, 2016. Based principally on the testimony of the Plaintiff and Felix Nieto, she finds that the Plaintiff worked on 25 days during the work weeks of Feb. 15, Feb. 22, Feb. 29, March 7, and March 14, 2016. She credits Nieto's testimony that the Plaintiff was absent from work on March 16 and 17, and on one day during the week of Feb. 22 or Feb. 29. She further finds that the Plaintiff was directly supervised by Felix Nieto, and had no direct interaction with either of the Individual Defendants. And she finds that the Plaintiff's work week was from Monday to Saturday, and his work day was from 5:00 a.m. until 5:00 p.m., although it will discuss the actual hours. Judge Failla concludes that the Plaintiff has vastly overstated the period of his employment at Tribeca Bagels, to the point of perjuring himself in his testimony to the Court. However, even the testimony of the Defendants' impeachment witnesses suggests that the Plaintiff is provisionally entitled to recovery for certain violations of the relevant statutes, in the amount of $8,144, plus prejudgment interest. The Judge refrains from issuing judgment in that amount, however, because it wishes to hear from the parties as to the effect, if any, of the Plaintiff's perjury on his entitlement to recovery, and, moreover, on the propriety of sanctions on the Plaintiff and/or his counsel pursuant to Federal Rule of Civil Procedure 11, 28 U.S.C. Section 1927, and the Court's inherent power. The Plaintiff pursued seven causes of action at trial: (i) First Cause of Action: Violation of the minimum wage provisions of the FLSA; (ii) Second Cause of Action: Violation of the overtime provisions of the FLSA; (iii) Third Cause of Action: Violation of the New York Minimum Wage Act; (iv) Fourth Cause of Action: Violation of the overtime provisions of the NYLL; (v) Fifth Cause of Action: Violation of the Spread of Hours Wage Order of the New York Commissioner of Labor; (vi) Sixth Cause of Action: Violation of the notice and recordkeeping requirements of the NYLL; and (vii) Seventh Cause of Action: Violation of the wage statement provisions of the NYLL. The first five of these causes of action are related: They all assert that the Defendants paid the Plaintiff insufficient wages, and the Judge will thus consider them in tandem, before addressing the Plaintiff's two remaining causes of action individually. The Judge finds that (i) the Plaintiff has not met his burden of demonstrating the applicability of the FLSA; (ii) Has Not Met His Burden of Demonstrating the Applicability of the FLSA; and (ii) the Court will retain supplemental jurisdiction over the Plaintiff's NYLL claims. She finds that the Plaintiff (i) has not met his burden of proving that Tiran Tsadok was his "employer" under the NYLL; (ii) is entitled to liquidated damages in the amount of 100% of the wages of which he was deprived, which total $947 under the NYLL' (iii) is provisionally entitled to statutory damages in the amount of $250 per work day, which, given the Court's finding of 25 work days, results in the statutory maximum award of $5,000; and (iv) is entitled to recoup prejudgment interest on his unpaid wages under the NYLL. She directed the parties to submit supplemental briefing on the issue of sanctions. She wishes to hear from the parties concerning next steps in light of all of the findings contained in her Opinion. As a result, she ordered the parties to submit briefing of no more than 20 pages on the following issues: (i) whether the Court may consider the Plaintiff's perjury, and any other inappropriate conduct in the litigation, in determining his entitlement to recovery under the NYLL; (ii) whether the sanctions against the Plaintiff are warranted under, among other sources, Federal Rule of Civil Procedure 11 or the Court's inherent power; and (iii) whether the against the Plaintiff's counsel warranted under, among other sources, Federal Rule of Civil Procedure 11, 28 U.S.C. Section 1927, or the Court's inherent power. The Judge further ordered that the Defendants' brief is due by April 30, 2018 and Plaintiff's responsive brief by May 30, 2018. She requested no reply brief at this time. A full-text copy of the Court's March 27, 2018 Opinion and Order is available at https://is.gd/3CPedJ from Leagle.com. Domingo Castillo Marcelino, individually & Domingo Castillo Marcelino, on behalf of others similarly situated, Plaintiffs, represented by Colin James Mulholland, Michael Faillace & Associates, P.C., Raquel Amalia Gutierrez, Michael Faillace & Associates, P.C., Shawn Raymond Clark -- sclark@faillacelaw.com - - Michael Faillace & Associates, P.C. & Michael Antonio Faillace -- Michael@Faillacelaw.com -- Michael Faillace & Associates, P.C. 374 Food Inc., doing business as, Tiran Tsadok & Hayim Tsadok, Defendants, represented by Brian Earl Lehman -- brian@lehmanlawgroup.com -- Lehman Lg LLC, pro hac vice & Julie Rosenblum Solarz, Julie Rosenblum Solarz. 4175 LLC: "Ha" Class Conditional Certification Bid Denied --------------------------------------------------------- In the case, SIU CHING HA and PAK CHUAN LEONG, on behalf of themselves and others similarly situated, Plaintiffs, v. 4175 LLC d/b/a BAUMGART'S CAFE, et al., Defendants, Civil Action No. 15- 5530 (ES) (MAH) (D. N.J.), Judge Esther Salas of the U.S. District Court for the District of New Jersey denied without prejudice the Plaintiffs' motion to conditionally certify a collective action under the Fair Labor Standards Act ("FLSA"). The Plaintiffs (comprising a chef, waiter, and delivery driver at three different restaurants) and prospective collective action members are former employees of the Defendants (comprising four different restaurants and their owners and managers). Ha filed an initial Complaint on behalf of himself and others similarly situated on July 14, 2015. Ha worked as a chef for Defendant Baumgart Cafe of Livingston, Inc., doing business as Baumgart's Cafe located at 4175 Town Center Way in Livingston, New Jersey, from June 15, 2014 to April 15, 2015. Leong worked as a waiter for Defendant Baumgart's Edgewater Corp., doing business as Baumgart's Cafe located at 59 The Promenade in Edgewater, New Jersey, from April 7, 2014 to Nov. 30, 2014. Leong, together with Ha, filed an Amended Complaint on April 1, 2016. Plaintiff Laura Wahyudi opted in to the action on April 18, 2016. Wahyudi worked as a delivery driver for Defendant Baumgart Restaurant, Inc., doing business as Baumgart Cafe located at 45 East Palisade Avenue in Englewood, New Jersey, from April 14, 2012 to Feb. 11, 2016. The Amended Complaint includes Defendant Baumgart's of Ridgewood, Inc. located at 158 Franklin Avenue in Ridgewood, New Jersey, although none of the Plaintiffs have worked there and there are no allegations of wrongdoing by Baumgart Ridgewood. According to the Plaintiffs, the Baumgart Defendants are all members of a Chinese-American chain store founded in the mid 80's by Steve and Marsha Wu along with their partner Sam Wang. They further allege that the Baumgart Defendants were and continue to be, a single and joint employer and have had a high degree of interrelated and unified operation, and share common management, centralized control of labor relations, common ownership, common control, common website, common business purposes and interrelated business goals. The Plaintiffs allege that (i) the Defendants failed to compensate them and the purported class members at the statutory minimum wage in violation of the FLSA and New Jersey Labor Law ("NJWHL") Sections 34:11-56 (Counts I and II); (ii) the Defendants failed to pay Plaintiffs and the purported class members overtime compensation at the statutory rate of time-and- a-half for all hours worked in excess of 40 hours per workweek in violation of the FLSA and New Jersey Labor Law (Counts III and IV); and (iii) the Defendants violated 26 U.S.C. Section 7434, which provides that if any person willfully files a fraudulent information return with respect to payments purported to be made to any other person, such other person may bring a civil action for damages against the person so filing such return (Count V). The Plaintiffs bring the action individually and on behalf of all other former non-exempt deliverymen, servers, busboys, and kitchen staff who have been or were employed by the Defendants for up to the last three years and whom were not compensated at least the hourly minimum wage and/or overtime compensation for all hours worked in excess of 40 hours per week. On May 12, 2017, the Plaintiffs moved for conditional certification of the FLSA collective action and publication of the proposed notice of pendency. Baumgart Livingston and Baumgart Ridgewood opposed the Plaintiffs' motion on June 5, 2017. Baumgart Edgewater opposed the Plaintiffs' motion on June 6, 2017. On June 12, 2017, the Plaintiffs submitted a reply in further support of their motion. The Defendants argue that the Plaintiffs have failed to meet the burden of proof for conditional certification under any standard however lenient or modest. Judge Salas agrees. In sum, the Judge finds that, while the threshold for conditional certification is modest, the Plaintiffs have nevertheless failed to provide evidence of a factual nexus between the manner in which the employer's alleged policy affected them and the manner in which it affected other employees. The Plaintiffs are asking the Court to speculate, based on their own affidavits alone, that other workers -- who held different positions, performed different requirements, and worked at different locations -- are similarly situated to them. Put differently, the Judge says, the Plaintiffs ask the Court to assume that because their rights may have been violated, the rights of all non-managerial employees (or those employees composing the three alternative subclasses) at the different Baumgart Defendants were also violated. But, again, the law requires a factual nexus, not an assumption of facts. The Plaintiffs have submitted no evidence -- other than their allegations -- to support the existence of a companywide policy in violation of the FLSA. And the alleged application of a uniform policy does not, without more, show that potential class members are similarly situated. Finally, the Judge finds that the evidence that has been submitted appears to demonstrate that some employees are not similarly situated to the Plaintiffs, in that they worked part time, may not have worked overtime, were paid differently, or held management positions. At this stage, it would be inappropriate for the Court to conditionally certify either all non-managerial employees or the three alternative subclasses. Accordingly, Judge Salas denied the Plaintiffs' motion for conditional certification of the FLSA collective action without prejudice to the Plaintiffs refiling the motion at a later date. A full-text copy of the Court's March 27, 2018 Opinion is available at https://is.gd/yLMQLE from Leagle.com. SIU CHING HA, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED & PAK CHAUN LEONG, Plaintiffs, represented by MICHAEL TAUBENFELD -- michael@fishertaubenfeld.com -- SERRINS FISHER LLP & AARON SCHWEITZER, TROY LAW, PLLC. BAUMGART CAFE OF LIVINGSTON, doing business as BAUMGART'S CAFE, BAUMGART RESTAURANT, INC., doing business as BAUMGART'S CAFE, BAUMGART OF RIDGEWOOD, INC., doing business as BAUMGART'S CAFE, MARSHA WU, GOU-FU WANG, also known as SAM WANG & STEVE WU, Defendants, represented by DOUGLAS WEINER, LIPMAN & PLESUR LLP. BAUMGART'S EDGEWATER CORP., doing business as BAUMGART'S CAFE & LEUNG FONG HO, also known as, Defendants, represented by BIN XUE -- benjaminxue@xuelaw.com -- XUE & ASSOCIATES, P.C. "ZONG HOU" XIE, Defendant, represented by S.M. CHRIS FRANZBLAU -- franzblau@njcounsel.com -- FRANZBLAU DRATCH, PC. ALLCONNECT INC: "McKenzie" Suit Moved to E.D. Kentucky ------------------------------------------------------ The class action lawsuit titled Mettekjistine McKenzie and Chastity Combs, on behalf of herself and all others similarly situated, the Plaintiffs, v. Allconnect, Inc., the Defendant, Case No. 18-CI-1449, was removed from the Fayette Circuit Court, to the U.S. District Court for the Eastern District of Kentucky (Lexington) on May 15, 2018. The District Court Clerk assigned Case No. 5:18-cv-00359-JMH to the proceeding. The case is assigned to the Hon. Judge Joseph M. Hood. Allconnect, Inc. operates as a multi-channel marketplace that connects consumers with essential home services.[BN] The Plaintiffs are represented by: Christopher D. Jennings, Esq. THE JOHNSON FIRM 2226 Cottondale Lane, Suite 210 Little Rock, AR 72202 Telephone: (501) 372 1300 Facsimile: (888) 505 0909 - and - David O'Brien Suetholz, Esq. KIRCHER, SUETHOLZ & GRAYSON, PSC - LOUISVILLE 515 Park Avenue Louisville, KY 40208 Telephone: (502) 636 4333 Facsimile: (502) 636 4342 E-mail: dave@unionsidelawyers.com - and - J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254 8801 Facsimile: (615) 255 5419 - and - Lynn A. Toops, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636 6481 Facsimile: (317) 636 2593 - and - Richard E. Shevitz, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636 6481 Facsimile: (317) 636 2593 Attorneys for Defendant: Jaron P. Blandford, Esq. Robert E. Maclin, III, Esq. MCBRAYER, MCGINNIS, LESLIE & KIRKLAND, PLLC - LEXINGTON 201 E. Main Street, Suite 900 Lexington, KY 40507 Telephone: (859) 231 8780 Facsimile: (859) 281 6480 E-mail: jblandford@mmlk.com remaclin@mmlk.com ALLEN COUNTY, IN: Court Grants Bid to File FAC in "Wilson" ---------------------------------------------------------- In the case, CALVIN WILSON, DAVID BLUME, and ASIA MARSHALL, individually and on behalf of all other similarly situated persons, Plaintiffs, v. ALLEN COUNTY COUNCIL, ALLEN COUNTY BOARD OF COMMISSIONERS, and ALLEN COUNTY PUBLIC DEFENDER BOARD, Defendants, Cause No. 1:15-CV-402-TLS (N.D. Ind.), Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana granted the Plaintiffs' First Motion to Amend/Correct their Brief in Opposition to the Defendant's Motion to Dismiss. Wilson, Blume, and Marshall, on behalf of themselves and others similarly situated, have brought the class action against the Defendants, seeking declaratory and injunctive relief pursuant to 42 U.S.C. Section 1983. The Plaintiffs allege that the Defendants have failed to provide effective assistance of counsel to indigent defendants charged with committing misdemeanor crimes in the courts of Allen County, Indiana, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 13(a) of Article 1 of the Indiana State Constitution. On Sept. 15, 2017, the Defendants filed a Motion to Dismiss the Plaintiff's Third Amended Complaint, and on Sept. 25, 2017, the Plaintiffs filed their Response. On Sept. 28, 2017, the Plaintiffs filed a Motion to Amend/Correct their Brief in Opposition to the Motion to Dismiss, the Defendants responded, and the Plaintiffs replied. As detailed in their Motion to Amend, the Plaintiffs seek to amend their response brief in opposition to the Defendants' Motion to Dismiss by adding one new paragraph and two documents. One of these documents in a letter from Derrick Mason, identified as a Senior Staff Attorney at the Indiana Public Defender Commission ("IPDC"), confirming the IPDC's approval of a request from the Allen County Public Defender ("ACPD") to hire additional staff. The Defendants oppose the Motion to Amend, and the inclusion of the attached proposed amended response brief and Letter in the record, arguing that the Letter is protected and excluded under the deliberative process privilege. Judge Springmann finds that the deliberative process privilege does not extend to the Letter at issue. First, on its face, the Letter appears to be a confirmation authorizing personnel (or shifting personnel into different positions). The language does not appear to reflect any sort of deliberation, let alone deliberation related to process by which policies are formulated. Rather, the language in the Letter indicates that it is an authorization, or confirmation per a conversation, for the ACPD's hiring of staff. The Judge has reviewed the Affidavit of Randall Hammond and has given it due consideration. She finds that Mr. Hammond claims the deliberative process privilege. Even taking Mr. Hammond's Affidavit at face value, the Letter is still not protected by the privilege because the privilege is intended to prevent inquiry into governmental decision-making that is only collateral to the case. At the crux of the lawsuit is an accusation of government misconduct. Moreover, the Plaintiffs assert that the Defendants acted intentionally when depriving the Plaintiffs of their constitutional right to the effective assistance of counsel. Therefore, the Judge finds that the deliberative process privilege does not shield the attachment of, or reference to, the Letter at issue in the Plaintiff's proposed amended brief in Opposition to the Motion to Dismiss. For these reasons, Judge Springmann granted the Plaintiffs' First Motion to Amend/Correct their Brief in Opposition to the Motion to Dismiss. She notes that the Motion to Dismiss is still pending and thus gives leave to the Defendants to file a reply by April 17, 2018. A full-text copy of the Court's March 27, 2018 Opinion and Order is available at https://is.gd/Jo2lSO from Leagle.com. Calvin Wilson, individually and on behalf of all others similarly situated & Asia Marshall, individually and on behalf of all others similarly situated, Plaintiffs, represented by David W. Frank -- dfrank@myers-law.com -- Christopher C. Myers & Associates. Allen County Board of Commissioners, Defendant, represented by G. William Fishering, Beers Mallers Backs & Salin LLP, J. Spencer Feighner -- jsf@hallercolvin.com -- Haller & Colvin PC, James P. Posey, Beers Mallers Backs & Salin LLP & Laura L. Maser, Beers Mallers Backs & Salin LLP. Allen County Council, Defendant, represented by J. Spencer Feighner, Haller & Colvin PC & James P. Posey, Beers Mallers Backs & Salin LLP. Allen County Public Defender Board, Defendant, represented by J. Spencer Feighner, Haller & Colvin PC, James P. Posey, Beers Mallers Backs & Salin LLP & John O. Feighner -- jfeighner@hallercolvin.com -- Haller & Colvin PC. AMERICAN AIRLINES: "Schultz" Suit Moved to S.D. Florida ------------------------------------------------------- The lawsuit titled Margaret Schultz, individually and on behalf of all others similarly situated, the Plaintiff, v. American Airlines, Inc., the Defendant, Case No. 02018CA004403XXXXMB, was removed from 15th Judicial Circuit in and for Palm Beach County, to the U.S. District Court for the Southern District of Florida (West Palm Beach) on May 14, 2018. The District Court Clerk assigned Case No. 9:18-cv-80633-RLR to the proceeding. The case is assigned to the Hon. Judge Robin L. Rosenberg. American Airlines is a major United States airline headquartered in Fort Worth, Texas, within the Dallas-Fort Worth metroplex.[BN] The Plaintiff is represented by: Mason Kyle Kerns, Esq. MASON KERNS LAW, P.A. 350 South Miami Avenue, Suite 2404 Miami, FL 33130 Telephone: (305) 725 8300 Facsimile: (305) 725 8305 E-mail: Mason@MasonKernsLaw.com - and - Robert E Burkett, Jr., Esq. BURKETT LAW OFFICE 5237 Summerlin Commons Blvd., Suite 217 FORT MYERS, FL 33907 Telephone: (239) 275 2145 Facsimile: (239) 275 2145 E-mail: BOBBURKETTLAW@GMAIL.COM Attorneys for Defendant: Humberto H. Ocariz, Esq. SHOOK HARDY & BACON LLP 201 So Biscayne Blvd., Suite 2400 Miami, FL 33131 Telephone: (305) 358 5171 Facsimile: (305) 358 7470 E-mail: hocariz@shb.com AMBI PAVING: Martinez Seeks Unpaid Overtime Wages under FLSA ------------------------------------------------------------ CARLOS JAVIER LUCIANO MARTINEZ, Individually and others, SIMILARLY SITUATED, The Plaintiff, v. AMBI PAVING LLC, A Florida Limited Liability company and SEROJINIE DEOCHAND, and individual, the Defendants, Case No. 6:18-cv-00737-RBD-GJK (M.D. Fla., May 11, 2018), seeks to recover unpaid overtime wages, pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff worked as paving trick driver and/or driver's helper for the Defendants. On a weekly basis, the Defendant would permit each employee to receive a lump sin in cash for a 40-hour work week based on either a daily or weekly rate. During those weeks in which the Plaintiff and those similarly situated worked in excess of 40 hours, the Defendant failed to pay overtime wages.[BN] The Plaintiff is represented by: Constantine W. Papas, Esq. LAW OFFICE OF CONSTANTINE W. PAPAS, P.A. 1277 N. Semoran Blvd., Ste 106 Orlando, FL 32807 Telephone: (407) 347 6502 Facsimile: (407) 206 3655 E-mail: cwp@deanpapaslaw.com AMN HEALTHCARE: Fails to Pay Minimum & OT Wages, Posephny Says -------------------------------------------------------------- NICOLE POSEPHNY, BAR.ET SLOLEYSARCHET, LAQUITA KNIGHT, and CARMEN SISTRUNK, on behalf of themselves and all others similarly situated, the Plaintiffs, v. AMN HEALTHCARE, INC., AMN HEALTHCARE SERVICES, INC., AMN HEALTHCARE ALLIED, INC., and HEALTHSOURCE GLOBAL STAFFING, INC., and DOES 1 through 10, inclusive, the Defendant, Case No. RG18905050 (Cal. Super. Ct., May 15, 2018), seeks to minimum wages and overtime wages under the California Labor Code. According to the complaint, the Defendants has had a policy and practice of failing to: (1) pay Class Members for all hours worked including, time spent waiting for work assignments and processing paperwork at the hotel, using Defendants' transportation to go to and from worksites, and waiting at worksites to receive instruction for their daily work assignments; (2) pay Class Members overtime premiums of one-and-one-half times their regular rate of pay for hours worked in excess of eight hours each workday or over 40 hours in a workweek, and overtime premiums of two times their regular rate of pay for hours worked over 12 hours each workday; (3) provide Class Members with thirty-minute duty-free meal periods for each five hours of work; (4) authorize and permit Class Members to take off-duty ten- minute rest periods for each four hours worked or major fraction thereof; and (5) reimburse Class Members for business-related expenses including, the costs of personal cell phone use to receive Defendants' instructions and the costs of their own meals. The Defendants are in the business of healthcare staffing.[BN] Attorneys for Plaintiffs and the Putative Class: Hunter Pyle, Esq. Chad Saunders, Esq. Vincent Chen, Esq. HUNTER PYLE LAW 428 13th Street, 11th Floor Oakland, CA 94612 Telephone: (510) 444 4400 Facsimile: (510) 444 4410 E-mail hunter@hunterpyleaw.com csaunders@hunterpyelaw.com vchcn@hunterpylclaw.com AMTRUST FINANCIAL: Shust Balks at Merger Evergreen Deal ------------------------------------------------------- NESTOR SHUST, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. AMTRUST FINANCIAL SERVICES, INC., DONALD T. DECARLO, SUSAN C. FISCH, ABRAHAM GULKOWITZ, GEORGE KARFUNKEL, LEAH KARFUNKEL, RAUL RIVERA, MARK SEROCK, and BARRY D. ZYSKIND, the Defendants, Case No. 1:18-cv-01129 (N.D. Ohio, May 15, 2018), seeks to enjoin vote on a proposed transaction, pursuant to which AmTrust will be taken private by a group of controlling shareholders including AmTrust's Chairman and Chief Executive Officer Barry D. Zyskind and directors George Karfunkel and Leah Karfunkel, and private equity funds managed by Stone Point Capital LLC. The Plaintiff brings this class action on behalf of the public stockholders of AmTrust Financial Services, Inc. against AmTrust and the members of its Board of Directors for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 On March 1, 2018, AmTrust issued a press release announcing it had entered into an Agreement and Plan of Merger with Evergreen Parent, L.P., an entity formed by funds managed by Stone Point and the Karfunkel-Zyskind Family, and Parent's wholly owned subsidiary, Evergreen Merger Sub, Inc., in which Parent will acquire the approximately 45% of the Company's issued and outstanding common shares that the Karfunkel-Zyskind Family and certain of its affiliates and related parties do not presently own or control. Under the terms of the Merger Agreement, AmTrust common shareholders who are not affiliated with the Karfunkel- Zyskind Family will receive $13.50 in cash for each share of AmTrust common stock they own. The Proposed Transaction is valued at approximately $2.7 billion. On May 4, 2018, AmTrust filed a Definitive Proxy Statement on FORM DEFM14A with the SEC. The Proxy Statement, which recommends that AmTrust's minority stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) AmTrust's financial projections, including the financial projections relied upon by AmTrust's financial advisor, Deutsche Bank Securities, Inc.; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Deutsche Bank; and (iii) Deutsche Bank's potential conflicts of interest. The failure to adequately disclose such material information constitutes a violation of Sections 14(a) and 20(a) of the Exchange Act as AmTrust's minority stockholders need such information in order to cast a fully-informed vote in connection with the Proposed Transaction or seek appraisal. In short, unless remedied, AmTrust's minority stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them. Plaintiff seeks to enjoin the stockholder vote on the Proposed Transaction unless and until such Exchange Act violations are cured.[BN] The Plaintiff is represented by: John C. Camillus, Esq. LAW OFFICE OF JOHN C. CAMILLUS, LLC P.O. Box 141410 Columbus, OH 43214 Telephone: (614) 558 7254 Facsimile: (614) 559 6731 E-mail: jcamillus@camilluslaw.com - and - Melissa A. Fortunato, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: (212) 308 5858 Facsimile: (212) 214 0506 E-mail: fortunato@bespc.com - and - Richard A. Acocelli, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, New York 10036 Telephone: (212) 682 3025 Facsimile: (212) 682 3010 E-mail: racocelli@weisslawllp.com ARTISANAL BREWERS: Fails to Pay Minimum & OT Wages, Hopkins Says ---------------------------------------------------------------- MARIA HOPKINS and ROLLIN MATTHEWS, individually, and on behalf of all others similarly situated, the Plaintiff, v. ARTISANAL BREWERS COLLECTIVE, LLC, a Limited Liability Company, and DOES 1 through 10, inclusive, the Defendants, Case No. BC705958 (Cal. Super. Ct., May 11, 2018), is an action against the Defendant for California Labor Code violations and unfair business practices stemming from the Defendants' failure to pay minimum and straight time wages, failure to pay overtime wages, failure to provide meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of hours worked and meal periods, failure to timely pay all wages to terminated employees, and failure to furnish accurate wage statements.[BN] The Plaintiffs are represented by: Kane Moon, Esq. Justin F. Marquez, Esq. Allen Feghali, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com justin.marquez@moonyanglaw.com allen.feghali@moonyanglaw.com APPLE HOSPITALITY: $5.5MM Deal in "Moses" Has Final Approval ------------------------------------------------------------ In the case, SUSAN MOSES, on behalf of herself and all others similarly situated, Plaintiff, v. APPLE HOSPITALITY REIT, INC., Defendant, Case No. 14-CV-3131 (SMG) (E.D. N.Y.), Magistrate Judge Steven M. Gold of the U.S. District Court for the Eastern District of New York granted the Plaintiff's move for an Order (i) finally certifying the class for settlement; (2) approving the terms of the revised settlement agreement; (3) approving the plan of allocation; and (4) appointing Moses as the class representative and interim class counsel as the class counsel. Representative Plaintiff Moses brings the breach of contract action on behalf of participants in the Defendant's Dividend Reinvestment Plans ("DRIPs"). The Plaintiff contends that the Defendant overvalued DRIP shares, breaching the parties' contract and causing damage to class members by charging inflated prices for the shares they acquired under the DRIPs. The parties eventually reached a settlement agreement and moved for preliminary approval of the settlement and preliminary certification of a settlement class. The Court heard oral argument on the Plaintiff's motion, and received revised submissions addressing questions raised at that argument. Thereafter, on Sept. 19, 2017, the Court granted Moses' motion for preliminary certification of a settlement class and preliminary approval of a class action settlement. The Court's Order also approved the notice that the parties proposed to have mailed to the class members, as well as a summary notice they proposed for publication. The settlement agreement provides for a $5.5 million fund from which the class members' claims, incentive awards, attorneys' fees, and costs will be paid. The net fund, consisting of the portion of the fund remaining after disbursements for incentive awards, attorneys' fees, and costs are made, will be allocated to the class members. Of the net fund, 85% will be distributed to the class members pro rata based on shares purchased during what the parties refer to as the tender offer period for each Real Estate Investment Trust ("REIT"). The remaining 15% of the net fund will be distributed in the same manner based on shares purchased outside the tender offer period. The settlement class is defined as any person in the United States who participated in the DRIPs for Apple REIT Seven and/or Apple REIT Eight from July 17, 2007 to June 27, 2013 inclusive. The interim class counsel engaged a third-party settlement administrator, Kurtzman Carson Consultants, LLC ("KCC"). After receiving lists containing the names and addresses of the class members, KCC mailed the approved notice to 24,242 class members and re-mailed about five hundred notices that were initially returned as undeliverable. It further caused the summary notice approved by the Court to be transmitted over PR Newswire, established a toll-free telephone hotline offering information about the settlement, and created a website with links to the Notice and other key documents relevant to the litigation. As of Dec. 29, 2017, the telephone hotline had received nine calls and the website had been visited 3,067 times. Four class members timely asked to be excluded from the settlement class. The Court received one objection. The parties now seek an Order (1) finally certifying the class for settlement; (2) approving the terms of the revised settlement agreement; (3) approving the plan of allocation; and (4) appointing Moses as class representative and interim class counsel as class counsel. The counsel in the case requests an award of one third of the settlement fund for attorneys' fees, for a total of $1,833,333.33. In addition to their fees, the counsel seeks a service award of $10,000 for representative Plaintiff Susan Moses. Finally, the counsel seeks litigation expenses totaling $24,844.66. Magistrate Gold concludes that the certification requirements of Rule 23(a) and Rule 23(b) are met in the case. Taking into account the modest degree of success achieved and the high lodestar multiplier, the Plaintiff's attorneys will be awarded 25% of the settlement fund, or $1,375,000. Even at the somewhat high hourly rates charged by the counsel, the Magistrate Judge finds that this amount results in a multiplier of 1.6, more than adequate to reasonably compensate counsel in the case and incentivize attorneys to take on lawsuits like this one. The difference between the 33% sought and the 25% awarded shall, of course, be added to the net settlement fund. Finally, he finds that the costs described by the counsel are necessary and incidental to their representation of the class, and he finds them to be reasonable. The amount sought will be accordingly awarded as well. For the reasons he described, Magistrate Gold granted the Plaintiff's motion is granted. Specifically, he ordered that (i) the final certification is granted to the class described for purposes of settlement; (ii) the Settlement Agreement, including its proposed plan of allocation, is approved; (iii) the law firms of Salas Wang LLC, Eccleston Law, LLC, and Law Office of Christopher J. Gray, P.C. are appointed the Class Counsel; (iv) the class counsel are awarded attorneys' fees equaling 25% of the Settlement fund, or $1,375,000; (v) the class counsel's request for reimbursement of $24,844.66 of litigation expenses is approved; and (vi) Moses is appointed the class representative and granted a $10,000 service award. A full-text copy of Court's March 27, 2018 Memorandum & Order is available at https://is.gd/OaGXMi from Leagle.com. Susan Moses, on behalf of herself and all others similarly situated, Plaintiff, represented by Christopher J. Gray -- christopher.j.gray@hud.gov -- Law Offices of Christopher J. Gray, P.C.., James J. Eccleston -- JEccleston@ecclestonlaw.com -- Eccleston Law Offices, P.C., Jeffrey M. Salas -- jsalas@salaswang.com -- Salas Wang LLC, pro hac vice & Christine Elizabeth Goodrich -- cgoodrich@faruqilaw.com -- Faruqi & Faruqi, LLP. Marsha Wilchfort, Plaintiff, represented by Lee Squitieri -- lee@sfclasslaw.com -- Squitieri & Fearon, LLP. Dorothy Wenzel, Plaintiff, pro se. Apple Hospitality REIT, Inc., Defendant, represented by Elizabeth F. Edwards -- eedwards@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr. -- jmcmahan@glvlawfirm.com -- McGuirewoods LLP, Michelle M. Christian -- mchristian@seyfarth.com -- McGuirewoods LLP, pro hac vice, Marwill Beil -- mbeil@mcguirewoods.com -- McGuireWoods, Richard L. Jarashow -- rjarashow@mcguirewoods.com -- McGuire Woods LLP & Stanley A. Roberts, McGuireWoods LLP. Glade M. Knight, Bryan Peery, Kent W. Colton, Glenn W. Bunting, Ronald A. Rosenfeld, Anthony Francis Keating, III, Lisa B. Kern, Bruce H. Matson, Michael S. Waters & Robert M. Wily, Defendants, represented by Elizabeth F. Edwards, McGuireWoods LLP, pro hac vice, Jeffrey D. McMahan, Jr., McGuirewoods LLP, Michelle M. Christian, McGuirewoods LLP, pro hac vice, Marshall Beil, McGuireWoods LLP & Richard L. Jarashow, McGuire Woods LLP. APPLE INC: "Orshan" Suit Over Misleading Product Packaging Junked ----------------------------------------------------------------- In the case, PAUL ORSHAN, et al., Plaintiffs, v. APPLE INC., Defendant, Case No. 5:14-cv-05659-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted Apple's motion to dismiss all of the claims in the Plaintiffs' First Amended Complaint. The Plaintiffs filed the class action suit against Apple on behalf of themselves and others similarly situated, alleging that Apple violated various consumer protection laws by misleading consumers regarding the storage capacity of certain mobile devices running iOS 8. The Plaintiffs are California consumers who purchased Apple products running iOS 8. Specifically, Orshan purchased two 16- gigabyte iPhone 5s devices and two 16 GB iPads all running iOS 7, which he then upgraded to iOS 8. Endara purchased a 16 GB iPhone 6 running iOS 8. Henderson purchased a 16 GB iPad2 running with a predecessor operating system to iOS 8, which he then upgraded to iOS 8. According to the allegations in the FAC, all the three Plaintiffs purchased their devices in reliance on the Defendant's claims, on its website, advertisements, product packaging, and other promotional materials, that the devices came with 16 GB of storage space and they expected that capacity would be available for their personal use. However, contrary to these expectations, anywhere from 18.1%-23.1% of this capacity (2.9 to 3.7 GB) was used by iOS 8 and not available to the Plaintiffs for personal storage. They Plaintiffs allege that, had they known this, they would not have upgraded to iOS 8, would not have purchased the 16 GB of storage capacity or would not have been willing to pay the same price for it. The FAC also alleges that, in addition to not meeting consumer expectations, Apple exploits the discrepancy between represented and available capacity for its own gain by offering to sell, and by selling, cloud storage capacity through its iCloud service. The FAC states that Apple charges anywhere from $0.99 to $29.99 per month for iCloud subscriptions and does not permit its users to use cloud storage services from other vendors. The Plaintiffs initiated the action on Dec. 30, 2014 and filed their FAC on April 9, 2015. The FAC alleges the following causes of action: (1) violation of California's Unfair Competition Law ("UCL"; (2) violation of the False Advertising Law ("FAL"); and (3) violation of the Consumers Legal Remedies Act ("CLRA"). Apple responded with the motion to dismiss all of the claims in the Plaintiffs' FAC. It also requests the Court to take judicial notice of 28 separate statements made on its and other websites, as well as statements made on product packaging. Judge Davila finds that the Plaintiffs concede that the FAC references and relies on statements made on Apple's website and on the product packaging of Apple's devices. Because those items meet the standard for admissibility under Rule 201, Apple's request is granted as to these documents. For the same reason, and with the same limitation applied, the Judge will also notice the articles about iCloud, the storage capacity of Apple devices and its competitor's devices, and the instructions from Apple's website explaining how to upgrade to iOS 8. What remains are Exhibits F, G and BB, which are articles commenting on the merits of this action. Aside from whether or not they are proper matters to be noticed under Rule 201(b), the Judge finds these articles irrelevant to any issue presented by the motion. Accordingly, he declines Apple's request to take judicial notice of these exhibits. Because the Plaintiffs' first theory that they were deceived into thinking that all of the advertised storage capacity would be available for personal use is not legally cognizable and the Plaintiffs' second theory that they were deceived into thinking that iOS 8 would not consume as much storage capacity as it did is insufficiently plead, Judge Davila finds that the Plaintiffs have failed to state a claim upon which relief can be granted. He will grant Apple's motion, and all of the Plaintiffs' claims will be dismissed. The Judge says amendment is futile as to the Plaintiffs' first theory (that they were deceived into thinking that all of the advertised storage capacity would be available for personal use) because it fails as a matter of law. However, amendment is not futile as to their second theory (that they were deceived into thinking that iOS 8 would not consume as much storage capacity as it did). Accordingly, he will allow amendment. Because he finds that the Plaintiffs have failed to state a claim and grants Apple's motion with leave to amend, the Judge says he needs not decide at this stage whether the FAC should also be dismissed on the other grounds raised in Apple's motion, including that (1) the CLRA is inapplicable; and (2) the Plaintiffs do not have standing to sue on products they did not purchase. He advised the Plaintiffs that, should they choose to amend their pleadings, they should amend them with an eye towards resolving any potential issues raised on these grounds as well. For these reasons, Judge Davila granted Apple's motion to dismiss and dismissed with leave to amen all claims in the FAC. Any amended complaint must be filed on or before May 1, 2018, and must be consistent with the Order. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/5mmzbm from Leagle.com. Paul Orshan, individually, and on behalf of all others similarly situated & Christopher Endara, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Charles J. LaDuca -- charlesl@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, Jon Michael Herskowitz -- jon@bhfloridalaw.com -- pro hac vice, Matthew Evan Miller -- mmiller@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, Melissa S. Weiner, Halunen Law, Michael Andrew McShane -- mmcshane@audetlaw.com -- Audet & Partners LLP, S. Clinton Woods, Audet & Partners, LLP. & William H. Anderson -- wanderson@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP. David Henderson, Plaintiff, represented by Michael Andrew McShane, Audet & Partners LLP, Charles J. LaDuca, Cuneo Gilbert & LaDuca, LLP, Jon Michael Herskowitz, pro hac vice, Melissa S. Weiner, Halunen Law, S. Clinton Woods, Audet & Partners, LLP. & William H. Anderson, Cuneo Gilbert & LaDuca, LLP. Apple Inc., Defendant, represented by Matthew David Powers -- mpowers@omm.com -- O'Melveny & Myers LLP. APRO LLC: Correa Seeks Unpaid Overtime Wages under Labor Code ------------------------------------------------------------- FABIAN G. CORREA, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. APRO, LLC, a Delaware limited liability company; and, DOES 1 through 20, inclusive, Defendant, Case No. BC705657 (Cal. Super. Ct., May 11, 2018), seeks to recover unpaid overtime wages under the California Labor Code. The Plaintiff is an individual who was/is employed by Defendants as hourly paid or nonexempt, in California, for at least the past four years. The Plaintiff was paid under an illegal compensation policy. The Defendants hired Plaintiff to work different shifts and paid a shift differential, yet failed to pay him for overtime hours at the proper overtime rate, and also failed to properly pay for double overtime hours worked, amongst other violations. Apro, LLC, doing business as United Oil, operates convenience store and gas stations in Northern California, Southern California, Colorado, and Washington.[BN] Attorneys for Plaintiff and all others similarly situated: Yoonis Han, Esq. Sam Kim, Esq. VERUM LAW GROUP, APC 841 Apollo Street, Suite 340 El Segundo, CA 90245 Telephone: (424) 320 2000 Facsimile: (424) 221 5010 E-mail: yhan@verumlg.com skim@verumlg.com - and - Paul Lee, Esq. LAW OFFICES OF PAUL J. LEE 2161 W. 182nd Street, Suite 204 Torrance, CA 90504 Telephone: (310) 844 7827 Facsimile: (310) 294 9963 ARKOFF OPERATING: $55K Settlement in "Feliz" FLSA Suit Approved --------------------------------------------------------------- In the case, JOEL FELIZ, Plaintiff, v. PARKOFF OPERATING CORP., d/b/a "Parkoff Management," d/b/a "The Parkoff Organization," et al., Defendants, Case No. 17 Civ. 7627 (HBP) (S.D. N.Y.), Judge Hnery Pitman of the U.S. District Court for the Southern District of New York granted the parties' joint application to approve their settlement. From February 2014 until August 2017, the Plaintiff was the live- in superintendent at an apartment building located at 441 Third Avenue in Manhattan. The Plaintiff also performed janitorial work at another apartment building located at 519 Second Avenue, also in Manhattan. The Plaintiff alleges that he frequently worked in excess of 40 hours per week but did not receive overtime premium pay at one and one-half times his regular hourly rate, as required by both the Fair Labor Standards Act, and the New York Labor Law. He estimates his total unpaid overtime wages to be $68,000. The Plaintiff also seeks (1) statutory damages in the amount of $10,000 as a result of the Defendants' alleged failure to provide him with the wage statements and wage notices required by the Labor Law and (2) damages of $4,000 to compensate for their allegedly illegal deductions from his wages. The Plaintiff's employment was terminated in August 2017. At the time of his termination, he received a $5,000 payment from the Defendants in exchange for a release of his claims against them. Although the Defendants do not seriously contend that the release the Plaintiff previously provided is effective with respect to his FLSA claim, they do contend that the Plaintiff's claimed overtime hours are inflated and that his claims should be limited to the two-year limitations period applicable to non-willful violations of the FLSA. The Defendants maintained time records which, if credited, support their defense that plaintiff has overstated the hours that he worked. The parties and their counsel participated in a settlement conference before the Judge on Feb. 26, 2018 at which they agreed to resolve the matter for the sum of $55,000, in addition to the $5,000 previously paid to the Plaintiff. Of the $55,000 settlement amount, the gross amount of $37,000 is allocated to the Plaintiff's FLSA claim. One-third of this amount will be allocated to wages, one third will be allocated to interest and penalties and the remaining one third will be allocated to his attorney's fees. Thus, of the $37,000, the Plaintiff will receive $24,666.67 and his counsel will receive $12,333.33. In return for the $37,000 payment, the Plaintiff will release all wage and hour claims against the Defendants. The remainder of the $55,000 settlement amount, or $18,000, will be allocated to the Plaintiff's claims under the Labor Law. One- third of this amount will be allocated to wages, one third will be allocated to interest and penalties and the remaining one third will be allocated to his attorney's fees. Thus, of the $18,000, the Plaintiff will receive $12,000 and the counsel will receive $6,000. In return for the $18,000 payment, the Plaintiff will provide the Defendants with a general release. The Payment is to be made within seven days of the Plaintiff's providing the releases. Of the total amount of $60,000 that the Defendants have paid and are paying to the Plaintiff, the latter will receive a total of $41,666.67 and the counsel will receive a total of $18,333.33. Judge Pitman explains that in determining whether a proposed FLSA settlement is fair and reasonable, a court should consider the totality of the circumstances, including but not limited to the following factors: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion. He finds that the settlement satisfies these criteria. First, even after deduction of legal fees and costs, the Plaintiff will receive approximately 61.3% of his claimed unpaid overtime premium pay. Second, the settlement will entirely avoid the burden, expense and aggravation of litigation. Third, the settlement will enable the Plaintiffs to avoid the risks of litigation. Fourth, the amount of the settlement was suggested by the Judge. Fifth, there are no factors that suggest the existence of fraud. Finally, the Plaintiff's counsel will receive one third of the $55,000 settlement figure to which the parties agreed at the conference. Accordingly, for all the foregoing reasons, Judge Pitman approved the settlement in the matter. In light of the settlement, he dismissed with prejudice and without costs. The Clerk is respectfully requested to mark the matter closed. A full-text copy of the Court's March 27, 2018 Opinion and Order is available at https://is.gd/p00h3k from Leagle.com. Joel Feliz, individually, and on behalf of all others similarly situated, Plaintiff, represented by Meredith Reade Miller -- mmiller@tourolaw.edu -- Miller Law, PLLC & Marc Andrew Rapaport -- info@rapaportlaw.com -- Rapaport Law Firm, PLLC. Parkoff Operating Corp., doing business as, Richard Parkoff, also known as, Adam Parkoff, R&R Assets LLC, Third Avenue Operating Group LLC & 519 Shamrock Assets LLC, Defendants, represented by Arthur J. Robb -- ajrobb@cbdm.com -- Clifton Budd & DeMaria, LLP & Carla Gunther -- cbgunther@cbdm.com -- Clifton Budd & DeMaria, LLP. BA-KER TANK: Wilson Seeks Unpaid Overtime Compensation under FLSA ----------------------------------------------------------------- CORY WILSON AND ALL OTHERS SIMILARLY SITUATED UNDER 29 U.S.C. section 216(B), the Plaintiff, v. BA-KER TANK HEAD COMPANY, INC., the Defendant, Case No. 4:18-cv-00346 (E.D. Tex., May 11, 2018), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff and Class Members were employed by the Defendant as inside-sales employees. The Plaintiff and Class Members performed their day-to-day activities within designed parameters and in accordance with pre-determined plans coordinated by Defendant. The Plaintiff and Class Members' daily and weekly activities are routine and largely governed by standardized plans, procedures, and checklists created by Defendant. During Plaintiff's entire employment and during weeks covered by this lawsuit, the Plaintiff and Class Members regularly worked over 40 hours per workweek. However, the Defendant did not and do not pay Plaintiff and Class Members one-and-one-half their regular rate for the hours Plaintiff and Class Members worked over 40 in a single workweek. Instead, the Defendant paid Plaintiff and Class Members the same for all hours worked, including any hours worked over 40 in a single workweek, even though Plaintiff and Class Members are not-exempt from overtime. Baker manufactures non-code tank heads. The Company produces hotforming, cones, manways, and rolled shells in various materials, sizes, shapes, thickness, and strength to choose from. Baker Tankhead performs burning, machining, and stress relieving services in the United States.[BN] Attorneys for Plaintiff and Class Members: Drew N. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479 9229 Facsimile: (817) 887 1878 E-mail: drew@herrmannlaw.com BACCI CAFE: "Villegas" Suit Seeks Minimum & OT Wages under FLSA --------------------------------------------------------------- JOSE A. VILLEGAS, on behalf of himself and all other persons similarly situated, known and unknown, the Plaintiff, v. BACCI CAFE & PIZZERIA ON MILWAUKEE AVE., INC., BACCI PIZZERIA SCHILLER PARK, INC., and PASQUALE DI DIANA, individually, the Defendants, Case No. 1:18-cv-03440 (N.D. Ill., May 15, 2018), seeks to recover minimum and overtime wages under the Fair Labor Standards Act and the Illinois Minimum Wage Law, and the City of Chicago Minimum Wage Ordinance. According to the complaint, the Plaintiff and other similarly- situated, current and former employees worked for Defendants as delivery drivers. The Defendants paid their delivery drivers a job rate that equated to a rate below the minimum hourly wage under the provisions of the IMWL and the FLSA. Bacci Pizzeria is low-key pizzeria chain serving jumbo slices, plus pasta, burgers and sandwiches. Attorneys for Plaintiff: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. WERMAN SALAS, P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419 1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com BIOGEN INC: Wins Bid to Dismiss "Metzler" Securities Suit --------------------------------------------------------- Judge F. Dennis Saylor, IV, of the U.S. District Court for the District of Massachusetts granted the Defendants' motion to dismiss the case, METZLER ASSET MANAGEMENT GMBH and ERSTE- SPARINVEST KAPITALANLAGEGESELLSCHAFT MBH, on Behalf of Themselves and All Other Similarly Situated Parties, Plaintiffs, v. STUART "TONY" A. KINGSLEY, GEORGE A. SCANGOS, PAUL C. CLANCY, and BIOGEN, INC., Defendants, Civil Action No. 16-12101-FDS (D. Mass.). This is a putative class action involving alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 10b-5. The Lead Plaintiffs Metzler Asset Management GmbH and Erste-Sparinvest Kapitalanlagegesellschaft mbH have brought suit, on behalf of a class of similarly situated persons, against biopharmaceutical company Biogen and three Biogen executives. The Plaintiffs contend that the class members were harmed when they purchased Biogen's common stock at prices that were artificially inflated by the company's materially misleading statements and omissions about Tecfidera, its leading multiple sclerosis drug. The amended complaint relies heavily on statements by 17 former Biogen employees acting as confidential witnesses. It alleges that the Defendants withheld material information about Tecfidera's safety profile and declining Tecfidera sales, and made misleading positive statements about future revenue. It further asserts that several Biogen executives made 31 materially false misrepresentations and omissions during various earnings calls and conferences over a one-year period between July 23, 2014, and July 23, 2015. The Defendants have moved to dismiss the complaint for two principal reasons. First, they contend that the Plaintiffs' claims are barred by the doctrine of claim preclusion, or res judicata, in light of the Court's dismissal of a suit raising similar claims in In re: Biogen Inc. Sec. Litig. ("Biogen I"). While the claims in this suit are largely identical to those in Biogen I, because the Biogen I putative class was never certified, the Lead Plaintiffs in this suit are not bound by the Court's earlier decision. Claim preclusion therefore does not bar this action. Second, the Defendants have moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and the Private Securities Litigation Reform Act of 1995. The Defendants contend that the complaint fails to set forth plausible allegations that the Individual Defendants' statements contain actionable misrepresentations or omissions. Specifically, they argue that the alleged misrepresentations, including nine that are newly alleged and were not included in the original action, are not adequately alleged to be false at the time they were made. In addition, they contend that the complaint fails to allege specific facts that give rise to a strong inference of scienter. Judge Saylor finds that the majority of the newly alleged statements do not appear to be actionable under the PSLRA, whether considered separately or taken as a whole. However, the complaint includes sufficient allegations to conclude that at least three of the newly alleged statements were material misrepresentations or omissions. Together with the three alleged misstatements or omissions identified in Biogen I, a total of six such statements qualify as misleading statements or omissions under the PSLRA. Considered as a whole, Judge Saylor finds that the complaint presents new allegations of scienter that fall far short of the strong inference required under the PSLRA. At best, the allegations are plausible, but not cogent and compelling. Again, he says, the allegations from confidential sources and Drs. Thrower and Zamvil -- none of whom personally spoke to defendants or witnessed any overtly fraudulent behavior -- contribute somewhat to the Plaintiffs' asserted inference of scienter. However, they are too unspecific and conclusory to create a strong inference of recklessness or intent. Indeed, the allegations concerning Tecfidera's safety profile, physicians' discomfort after the PML death, and declining Tecfidera sales are at least partly consistent with the Defendants' repeated public disclosures. Furthermore, the complaint's "additional" motive and core-product allegations provide very little support to an inference of scienter. Without more, the Plaintiffs' circumstantial case of scienter is not strong or compelling. In sum, even after drawing all reasonable inferences on behalf of the Plaintiffs, the most compelling inference to be drawn from the complaint as a whole is that Defendants did not publicize further the lymphopenia warning already on the Tecfidera label and were unduly optimistic -- at worst, negligently so -- in predicting how quickly Tecfidera sales would recover from the PML announcement. Still, allegations of corporate mismanagement are not actionable under Rule 10b-5. Nor are allegations of mere negligence. Without evidence sufficient to support a strong inference of intent, or at least recklessness, the Defendants' failure to predict the future does not support a claim for securities fraud; accordingly, under the heightened pleading standard of the PSLRA, Count One will be dismissed. Accordingly, Judge Saylor granted the Defendants' motion to dismiss. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/mKs1Ih from Leagle.com. Metzler Asset Management GmbH, on behalf of itself and all other similarly situated parties & Erste-Sparinvest Kapitalanlagegesellschaft mbH, on behalf of itself and all other similarly situated parties, Plaintiffs, represented by Christopher F. Moriarty -- cmoriarty@motleyrice.com -- Motley Rice LLC, pro hac vice, Garrett C. Bradley -- gbradley@tenlaw.com -- Thornton Law Firm & Gregg S. Levin -- glevin@motleyrice.com -- Motley Rice LLC. Stuart A. Kingsley, George A Scangos, Paul C Clancy & Biogen Inc., Defendants, represented by James R. Carroll -- james.carroll@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Michael S. Hines -- michael.hines@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Sara J. van Vliet -- sara.vanvliet@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. Metzler Asset Management GmbH & Erste-Sparinvest Kapitalanlagegesellschaft mbH, Movants, represented by Christopher F. Moriarty, Motley Rice LLC, pro hac vice, William H. Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC, pro hac vice & Gregg S. Levi, Motley Rice LLC. The City of Miami Fire Fighters and Police Officers Retirement Trust, Movant, represented by Samuel H. Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice & Theodore M. Hess-Mahan -- thess- mahan@hutchingsbarsamian.com -- Hutchings, Barsamian, Cross and Mandelcorn, LLP. FRANKFURT TRUST Investment GmbH & FRANKFURT-TRUST Investment Luxemburg AG, Movants, represented by Francis P. McConville -- fmcconville@labaton.com -- Labaton Sucharow LLP, pro hac vice, Jonathan Gardner -- jgardner@labaton.com -- Labaton Sucharow LLP, pro hac vice, Joshua L. Solomon -- jsolomon@psdfirm.com -- Pollack Solomon Duffy LLP & Guillaume Buell -- gbuell@hdwlegal.com -- Labaton Sucharow LLP. BLACKMON MOORING: "Smith" Suit Moved to Northern Dist. of Texas --------------------------------------------------------------- The class action lawsuit titled Zachary Smith, individually and on behalf of all other similarly situated, the Plaintiff, v. Blackmon Mooring Co., the Defendant, Case No. 348-297650-18, was removed from the 348th District Court, Tarrant County, to the U.S. District Court for the Northern District of Texas (Fort Worth) on May 14, 2018. The District Court Clerk assigned Case No. 4:18-cv-00365-O to the proceeding. The case is assigned to the Hon. Judge Reed C. O'Connor. Blackmon-Mooring provides janitorial services. The Company offers commercial mold remediation, emergency repairs, and controlled demolition.[BN] Attorneys for Plaintiff: Craig Carley Marchiando, Esq. Elizabeth W. Hanes, Esq. Leonard Anthony Bennett, Esq. CONSUMER LITIGATION ASSOCIATES 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Telephone: (757) 930 3660 Facsimile: (757) 930 3662 E-mail: craig@clalegal.com elizabeth@clalegal.com lenbennett@clalegal.com Attorneys for Defendant: Russell D. Cawyer, Esq. Henry H Robinson, Esq. KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, TX 76102-3194 Telephone: (817) 332 2500 Facsimile: (817) 878 9280 E-mail: russell.cawyer@kellyhart.com henry.robinson@kellyhart.com BP EXPLORATION: Porto Castelo Loses Bid to Extend Time Upheld ------------------------------------------------------------- In the case, In Re: Deepwater Horizon. PORTO CASTELO, INCORPORATED, Plaintiff-Appellant, v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Defendants-Appellees, No. 17-30777 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's denial of Porto Castelo's motion to extend deadline to seek discretionary review in the district court. The appeal arises from a Business Economic Loss ("BEL") claim filed under the Court Supervised Settlement Program ("CSSP") established by the class action settlement of civil claims stemming from the Deepwater Horizon oil spill. Pursuant to the parties' settlement agreement, disappointed BEL claimant Porto Castel had 14 days to seek discretionary review in the district court. Porto Castelo failed to meet the filing deadline and the district court denied Porto Castelo's motion to extend the time to file. Porto Castelo appeals. The Appellate Court reviews the motion for extension of time for abuse of discretion. It finds that even assuming Porto Castelo has shown that the counsel's personal troubles contributed to his oversight as to the filing deadline, and that the circumstances presented may constitute good cause or excusable neglect, Porto Castelo has not shown that the district court abused its discretion by declining to grant an extension. Accordingly, it affirmed the district court's denial of Porto Castelo's motion to extend time. A full-text copy of the Court's March 28, 2018 Order is available at https://is.gd/jn21Z0 from Leagle.com. Don Keller Haycraft -- dkhaycraft@liskow.com -- for Defendant- Appellee. Gus Emile Pappas, for Plaintiff-Appellant. James Andrew Langan -- andrew.langan@kirkland.com -- for Defendant-Appellee. Richard Cartier Godfrey -- richard.godfrey@kirkland.com -- for Defendant-Appellee. Jeffrey Bossert Clark, Sr. -- jeffrey.clark@kirkland.com -- for Defendant-Appellee. Daryl A. Libow -- libowd@sullcrom.com -- for Defendant-Appellee. Julia A. Malkina -- malkinaj@sullcrom.com -- for Defendant- Appellee. CDK GLOBAL: Wants Antitrust Suits Included in MDL ------------------------------------------------- CDK Global, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that defendants in the class action antitrust suits, have moved to have these putative class actions be included as part of an MDL proceeding. On October 19, 2017, Teterboro Automall, Inc. d/b/a Teterboro Chrysler Dodge Jeep Ram filed a putative class-action antitrust suit against the Company's operating subsidiary, CDK Global, LLC, and Reynolds and Reynolds, in the U.S. District Court for the District of New Jersey, seeking certification as a class action, treble damages, and injunctive and declaratory relief. Since that time, several more putative class actions have been filed in a variety of Federal District Courts, with substantively similar allegations. Defendants have moved to have these putative class actions be included as part of an MDL proceeding. CDK Global, Inc. provides integrated information technology and digital marketing solutions to the automotive retail and other industries worldwide. CHANGE HEALTHCARE: "Martinez" Suit Moved to S.D. Florida -------------------------------------------------------- The class action lawsuit titled Brenya Martinez, on behalf of herself and all other similarly situated individuals, the Plaintiff, v. Change Healthcare Solutions, LLC, the Defendant, Case No. 18-010917-CA-01, was removed from the 11th Judicial Circuit in and for Miami-Dade County, to the U.S. District Court for the Southern District of Florida (Miami) on May 14, 2018. The District Court Clerk assigned Case No. 1:18-cv-21923-MGC to the proceeding. The case is assigned to the Hon. Judge Marcia G. Cooke. Change Healthcare is a provider of revenue and payment cycle management and clinical information exchange solutions.[BN] The Plaintiff is represented by: Anthony Maximillien Georges-Pierre REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416 5000 Facsimile: (305) 416 5005 E-mail: agp@rgpattorneys.com Attorneys for Defendants: Christopher Patrick Hammon, Esq. Kelly Marie Pena, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART PC 701 Brickell Avenue, Suite 1600 Miami, FL 33131 Telephone: (305) 455 3711 Facsimile: (305) 374 0456 E-mail: chris.hammon@ogletreedeakins.com kelly.pena@ogletreedeakins.com CLARINS U.S.A.: Website Not Accessible to Blind, Wu Claims ---------------------------------------------------------- KATHY WU AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, Plaintiffs, v. CLARINS U.S.A., INC., the Defendant, Case No. 1:18-cv-0430 (S.D.N.Y., May 15, 2018), seeks permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using her computer. The Plaintiff brings her civil rights action against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of Plaintiff's rights under the Americans with Disabilities Act. Because Defendant's website, www.clarinsusa.com, is not equally accessible to blind and visually-impaired consumers, it violates the ADA. Clarins USA, Inc. manufactures skin care, make-up, and fragrance products for men and women. It provides cleansers and toners, serums and boosters.[BN] The Plaintiff is represented by: Dana L. Gottlieb, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228 9795 Facsimile: (212) 982 6284 E-mail: nyjg@aol.com danalgottlieb@aol.com CSX INTERMODAL: Court Denies Bid to Strike in "Valadez" Suit ------------------------------------------------------------ In the case, MIGUEL VALADEZ, ET AL., Plaintiffs, v. CSX INTERMODAL TERMINALS, INC., Defendant, Case No. 15-cv-05433-EDL (N.D. Cal.), Judge Elizabeth D. Laporte of the U.S. District Court for the Northern District of California denied both the Plaintiffs' motion for partial summary judgment and the Defendant's motion to strike or dismiss the Plaintiffs' representative Private Attorney General Act of 2003 ("PAGA") claims. The Defendant, a federally registered motor carrier, provides intermodal transport services to shippers that use railroads to transport freight in and out of California. The Plaintiffs worked as Drivers. The Plaintiffs initiated the case as a putative class action in Alameda Superior Court on Sept. 30, 2015, and the Defendant removed it to the Court under the Class Action Fairness Act on Nov. 25, 2015. The Defendant filed a motion to dismiss on Jan. 29, 2016, to which the Plaintiffs responded by filing an amended complaint on Jan. 29, 2016. Thereafter, the Court granted the Parties' stipulations allowing the Plaintiffs to file a second and then third amended complaint on March 7, 2016 and March 22, 2016, respectively. On Dec. 16, 2016, the Court granted the Parties' stipulation allowing the Plaintiffs to file a fourth amended complaint. This is the operative complaint. In it, the Plaintiffs assert the following claims based on the Defendant's alleged misclassification of its Drivers as independent contractors rather than employees: (i) reimbursement of business expenses (California Labor Code Section 2802); (ii) unlawful deductions from wages (California Labor Code Section 221); (iii) failure to provide off-duty meal periods (California Labor Code Sections 226.7 and 512); (iv) failure to provide off-duty paid rest periods (California labor Code Section 226.7); (v) failure to pay minimum wage (California Labor Code Sections 1182.11, 1194); (vi) failure to timely provide wage statements (California Labor Code Section 226); (vii) violation of the California Unfair Competition Law; and (viii) PAGA claims as representatives of similarly situated Drivers. On Oct. 26, 2017, the Court granted the parties' stipulation to strike the Plaintiffs' class claims from the Plaintiffs' Fourth Amended Complaint. It moves to strike or dismiss the Plaintiffs' PAGA claims on the grounds that, because the Plaintiffs seek relief on behalf of 56 Drivers, adjudication of the claims on a representative basis would be unmanageable and would interfere with the Defendant's due process rights. On Jan. 30, 2018, the Plaintiffs filed their current motion for partial summary judgment on employment status. That same day, the Defendant filed a motion to strike or dismiss the Plaintiffs' PAGA claims. On Feb. 13, 2018, both parties filed their oppositions to each other's motions. On Feb. 20, 2018, they both filed their replies in support of their own motions. On March 6, 2018, the Court held a hearing on both motions. Judge Laporte finds that the differences that the Defendant raises do not make the determination of whether all the Drivers were independent contractors or employees unmanageable. The majority of the Defendant's arguments show only that there were some variations in how the Defendant and the Drivers exercised their rights under the COLA, not that there were variations in the control that the Defendant retained. While the derivative claims may require individualized proof, the Defendant has not shown that they are as hard to manage as the claims in the cases on which it relies. The Judge says those claims were brought on behalf of thousands of employees, whereas the Plaintiffs assert claims on behalf of only 56 Drivers. Moreover, the parties should have records of business expenses from their tax filings and their wage statements, and the Defendant has retained extensive data on exactly when and where Drivers were working. While the ultimate resolution of the claims still requires some individualized inquiries, the Defendant has not shown that those inquiries would be so unmanageable as to justify striking the Plaintiffs' PAGA claims. The Judge will deny the Defendant's motion to strike or dismiss the Plaintiffs' PAGA claims on the grounds that they are unmanageable. However, the Defendant may raise this issue again if, as trial approaches, it can make a good faith argument that does not relitigate issues decided here that the Plaintiffs do not propose a plan for trial that is manageable and protects its due process rights. As to the Plaintiffs' motion for partial summary judgment on employment status, Judge Laporte finds that while the Plaintiffs make a strong case that the Defendant retained all necessary control over their work and might well prevail on this issue at trial, drawing all inferences in the Defendant's favor, the evidence is not so strong that a reasonable jury could not determine that the Defendant did not do so. For example, the jury could give significant weight to the facts that the Plaintiffs chose their own routes, could reject specific offers, and did not have their performance evaluated. Because the right to control is the most important part of the multi-factor test, the fact that it does not necessarily point in one direction is a strong indication that summary judgment is not warranted. Because some of the secondary factors weigh in favor of finding an independent contractor status, and the right to control, which is the most important factor, could support a finding of either status, a reasonable jury could say that the Plaintiffs are independent contractors. Accordingly, while Plaintiffs make a strong argument, the Judge cannot determine that the Plaintiffs are employees as a matter of law. Therefore, he will deny the Plaintiffs' motion for summary judgment on employment status. Because he is denying the Plaintiffs' motion for summary judgment, he will deny the Defendant's request for relief under Rule 56(D) as moot. The Judge overruled the Plaintiff's objection to the declaration of Paul Hand. Hand states that he has personal knowledge of the matters he describes and explains why. The Plaintiff argues an earlier deposition by Hand shows that he does not have personal knowledge of those matters. He holds that that deposition shows that Hand did not personally supervise the Defendant's operations in California, but does not establish that Hand did not have knowledge of the practices in California from 10 years of working for the Defendant. The Judge will deny the Plaintiffs' administrative motion to file six exhibits to the Declaration of Aaron Kaufmann under seal, on the grounds that the Defendant had designated them confidential. On Feb. 5, 2018, the Defendant filed a declaration withdrawing their confidentiality designation for one of the exhibits but retaining the confidentiality declaration for the other five. On Feb. 6, 2018, the Defendant filed an amended declaration withdrawing their confidentiality designation for all six exhibits. For these reasons, Judge Laporte denied the Defendant's motion to strike, denied the Plaintiffs' motion for partial summary judgment, denied the Defendant's request to defer the Plaintiffs' motion until more discovery takes place, overruled the Plaintiffs' objections to Hand's declaration, and denied the Plaintiffs' administrative motion to file exhibits under seal. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/yFQQUx from Leagle.com. Miguel Valadez, Nora Ledesma, Manuel Ledesma, Anthony Green, Jr. & Eleaquin Temblador, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Aaron D. Kaufmann -- akaufmann@leonardcarder.com -- Leonard Carder, LLP, David Philip Pogrel -- dpogrel@leonardcarder.com -- Leonard Carder LLP, Elizabeth R. Gropman -- egropman@leonardcarder.com -- Leonard Carder LLP, Giselle Olmedo -- golmedo@leonardcarder.com -- Leonard Cardner, LLP & Paul Thomas Cullen, The Cullen Law Firm, APC. Eleaquin Temblador, Plaintiff, represented by Aaron D. Kaufmann, Leonard Carder, LLP, Elizabeth R. Gropman, Leonard Carder LLP & Paul Thomas Cullen, The Cullen Law Firm, APC. CSX Intermodal Terminals, Inc., a Delaware corporation, Defendant, represented by Allison Elizabeth Crow -- acrow@jonesday.com -- Jones Day, Amanda C. Sommerfeld -- asommerfeld@jonesday.com -- Jones Day, Linda Auerbach Allderdice -- linda.allderdice@hklaw.com -- Holland & Knight LLP, Matthew W. Lampe -- mwlampe@jonesday.com -- Jones Day, pro hac vice, Elizabeth K. Yates -- eyates@jonesday.com -- Jones Day & John H. Haney -- john.haney@hklaw.com -- Holland and Knight LLP. DANELL CUSTOM: July 11 Final Fairness Hearing on "Rodriguez" Deal ----------------------------------------------------------------- In the case, FRANCISCO RODRIGUEZ, et al., Plaintiffs, v. DANELL CUSTOM HARVESTING, LLC, et al., Defendants, Case No. 1:16-cv- 01848-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California has entered an order granting the parties' stipulation that (i) the parties will file any motions in support of final approval of the settlement no later than June 8, 2018; (ii) the final fairness hearing will be continued from June 20, 2018, to July 11, 2018, at 10:00 a.m. in Courtroom 9; and (iii) the parties will have the claims administrator send a notice in English and Spanish stating the new hearing date to the class members who file objections. On March 26, 2018, the parties filed a stipulation to continue the deadline to file a motion for final approval of the class action settlement and the hearing date. A full-text copy of the Court's March 28, 2018 Order is available at https://is.gd/fBOeQy from Leagle.com. Francisco Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan Manuel Bravo, Estela Patino, Jose F. Orozco & Antonio Ortiz, Plaintiffs, represented by Enrique Martinez, Law Offices of John E. Hill. Danell Custom Harvesting, LLC, a California Company, Rance Danell, Eric Danell, David Danell & Justin Danell, Defendants, represented by Howard A. Sagaser -- has@sw2law.com -- Sagaser, Watkins & Wieland, PC, Ian Blade Wieland -- ian@sw2law.com -- Sagaser, Watkins & Wieland, PC & William M. Woolman -- bill@sw2law.com -- Sagaser, Watkins & Wieland PC. DIAGEO-GUINNESS USA: Court Narrows Claims in "O'Hara" Suit ---------------------------------------------------------- In the case, KIERAN O'HARA, Plaintiff. C.A. v. DIAGEO-GUINNESS, USA, INC. and DIAGEO NORTH AMERICA, INC., Defendants, Case No. 15-14139-MLW (D. Mass.), Judge Mark L. Wolf of the U.S. District Court for the District of Massachusetts granted in part and denied in part the Defendants' Motion to Dismiss, and denied the Plaintiff's Motion to Strike. The Defendants make and market Guinness Extra Stout, a form of beer, for distribution in the United States. O'Hara filed a putative class complaint alleging that he bought Extra Stout in part because the Defendants deceptively advertised that it was brewed at St. James's Gate brewery, Dublin, Ireland. The Plaintiff alleges that Extra Stout was actually brewed in New Brunswick, Canada. He alleges that he paid more for the beer than he would have if defendants had disclosed its origin. He subsequently filed an amended complaint with seven claims, including unjust enrichment, misrepresentation, and unfair and deceptive practices in violation of Mass. Gen. Laws Chapter 93A. The Plaintiff seeks to represent a class of consumers who purchased Guinness Extra Stout at stores and restaurants while the Defendants deceptively represented that the beer was made and bottled in Ireland, comprising subclasses of consumers who purchased the product in Massachusetts and across the United States. He claims common-law misrepresentation (Count I), Unjust Enrichment (Count II), and violations of Mass. Gen. Laws Chapter 93A (Counts III, IV, V, and VI). He also seeks a Declaratory Judgment (Count VII). Counts IV, V, and VI allege violations of Chapter 93A based on violations of several Massachusetts regulations and a statute, including 940 C.M.R. 3.02 (false advertising) (Count IV) and Mass. Gen. Laws Chapter 94, Section 187 (misbranding) on its own (Count V) and as interpreted in 105 C.M.R. 520.115 (requiring Chapter 94-mandated disclosures to be displayed on a product's label with "prominence and conspicuousness") (Count VI). He seeks, in addition to the declaratory judgment, damages in the amount of the purchase price for Guinness Extra Stout or any price premium paid as a result of the alleged misrepresentations, as well as injunctive relief. The Defendants have moved to dismiss. They attached two documents to the motion. Exhibit 1 is a copy of the COLA for Extra Stout. The COLA consists of their application to the Alcohol Tobacco Tax and Trade Bureau ("TTB") with the signature of the TTB officer who certified it. The document includes the labels affixed to bottles of Extra Stout, which are identical to those pictured in the Amended Complaint. Exhibit 2 is a copy of the COLA Detail for Extra Stout, which is a webpage on the TTB's website containing certain information about the status of the COLA for Extra Stout, including a link to a "Printable Version" of the COLA. The Plaintiff has moved to strike those exhibits. Judge Wolf is denying the motion to strike Exhibits 1 and 2 to the Defendants' Motion to Dismiss. He finds that whether the Defendants' statements relating to the beer's contents were correct is irrelevant to the material issue -- whether the TTB approved, as not misleading, the statements relating to its origin. Plaintiff does not dispute that the labels pictured on the COLA are identical to those pictured in the Amended Complaint and that the TTB approved those labels. Therefore, the Judge says the authenticity of Exhibit 1 as the COLA approving the labels on the bottle described in the Amended Complaint is undisputed, and he may consider it to determine whether the labels can in the case be found to be misleading. In addition, as to Exhibit 2, the disclaimer does not undermine the webpage's reliability as proof that the TTB recorded Extra Stout's "origin" as "Canada" when issuing the COLA. The Judge is not relying on any remaining statements of fact in the exhibits, including the Defendants' statements, because they are irrelevant to whether the TTB approved Extra Stout's labels knowing that it was brewed in Canada. As to the Defendant's Motion to Dismiss, the Judge finds that the Plaintiff has pled facts supporting a plausible inference that he suffered a judicially cognizable injury compensable under the causes of action. He finds that a reasonable jury could conclude that the place that Extra Stout is brewed influences consumers' decisions to purchase the beer and its price. The Judge also finds that the Amended Complaint states a claim that Extra Stout's bottling, packaging, and website were deceptive, that the Plaintiff relied on the deceptive statements in purchasing the product, and that he overpaid for the product as a result. The Plaintiff has, therefore, stated claims for misrepresentation and, as to the statements on the Defendants' website, a deceptive statement in violation of Mass. Gen. Laws Chapter 93A. Judge Wolf is dismissing Counts III and IV to the extent that they rely on the labeling of Extra Stout's bottles and packaging. In addition, because the TTB found that Extra Stout labels are not deceptive, Counts V and VI must be dismissed in their entirety. For unjust enrichment, the Judge explains that the claims for misrepresentation and violations of Chapter 93A provide available remedies, even though some of them must be dismissed. Therefore, the unjust enrichment claim must be dismissed. Because the Plaintiff does not satisfy Article III's requirement of an imminent injury, his prayer for injunctive relief must be dismissed. For declaratory judgment relief, the Judge finds that the Plaintiff acknowledges that all of the violations have been separately alleged in the Amended Complaint. The declaratory judgment claim, therefore, "merely duplicates" the other counts and is subject to dismissal. Finally, as to the request to strike allegations, Judge Wolf finds that the parties are likely to resolve their disagreement concerning the proper scope of the class definition after they have conferred with the benefit of the Memorandum and Order and, if necessary, limited discovery concerning when the Defendants began selling Ireland-brewed Extra Stout in the United States. Therefore, he is denying the request to strike the class allegations without prejudice. In view of this, Judge Wolf denied the Plaintiff's Motion to Strike, and granted in part and denied in part the Defendants' Motion to Dismiss. He denied the Defendant's Motion as to Count I, alleging misrepresentation, and as to Counts III and IV to the extent that they allege that statements on the Defendants' website violated Mass. He allowed the Motion to Dismiss as to Count II, with respect to Counts III and IV to the extent that they allege the statements on Extra Stout's bottle and carton labels violate Chapter 93A, and as to the remaining counts in their entirety. He also dismissed the prayers for injunctive and declaratory relief. At the scheduling conference, the parties will, in the Joint Statement required under Rule 16.1(d) of the Local Rules for the U.S. District Court for the District of Massachusetts, state whether they have reached an agreement concerning whether the class definition should be amended prior to discovery, and if so, how it should be amended. If they have not reached an agreement, they will explain their respective positions. A full-text copy of the Court's March 27, 2018 Memorandum and Order is available at https://is.gd/vW6Wb1 from Leagle.com. Kieran O'Hara, on behalf of himself and all other similarly situated individuals, Plaintiff, represented by Kevin J. McCullough -- kmccullough@forrestlamothe.com -- Mazow McCullough PC & Michael C. Forrest -- mforrest@forrestlamothe.com -- Forrest, LaMothe, Mazoe, McCullough, Yasi & Yasi. Diageo North America, Inc. & Diageo-Guinness, USA, Inc., aka Guinness USA, Defendants, represented by Euripides D. Dalmanieras -- edalmani@foleyhoag.com -- Foley Hoag LLP, Leslie W. Kostyshak -- lkostyshak@HuntonAK.com -- Hunton & Williams, LLP, pro hac vice & Samuel A. Danon -- sdanon@HuntonAK.com -- Hunton & Williams LLP, pro hac vice. EAGLE MATERIALS: Parties in Wallboard Suit Reached Settlement ------------------------------------------------------------- Eagle Materials Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the company together with other defendants entered into agreements with counsel representing the direct and indirect purchasers in the Domestic Wallboard Antitrust Litigation. Since late December 2012, several purported class action lawsuits were filed in various United States District Courts, including the Eastern District of Pennsylvania, Western District of North Carolina and the Northern District of Illinois, against the Company's subsidiary, American Gypsum Company LLC ("American Gypsum"), alleging that the defendant wallboard manufacturers conspired to fix the price for drywall sold in the United States in violation of federal antitrust laws and, in some cases related provisions of state law. The complaints alleged that the defendant wallboard manufacturers conspired to increase prices through the announcement and implementation of coordinated price increases, output restrictions, and other restraints of trade, including the elimination of individual "job quote" pricing. In addition to American Gypsum, the defendants in these lawsuits include CertainTeed Corp. ("CertainTeed"), USG Corporation and United States Gypsum (together "USG"), New NGC, Inc. ("New NGC"), Lafarge North America ("Lafarge"), Temple Inland Inc. ("TIN") and PABCO Building Products LLC ("PABCO"). On April 8, 2013, the Judicial Panel on Multidistrict Litigation ("JPML") transferred and consolidated all related cases to the Eastern District of Pennsylvania for coordinated pretrial proceedings. On June 24, 2013, the direct and indirect purchaser plaintiffs filed consolidated amended class action complaints. The direct purchasers' complaint added the Company as a defendant. The plaintiffs in the consolidated class action complaints assert claims on behalf of purported classes of direct or indirect purchasers of wallboard from January 1, 2012 to the present for unspecified monetary damages (including treble damages) and in some cases injunctive relief. On July 29, 2013, the Company and American Gypsum answered the complaints, denying all allegations that they conspired to increase the price of drywall and asserting affirmative defenses to the plaintiffs' claims. In 2014, USG and TIN entered into agreements with counsel representing the direct and indirect purchaser classes pursuant to which they agreed to settle all claims against them. Under the terms of its settlement agreement, USG agreed to pay $48.0 million to resolve the direct and indirect purchaser class actions. In its settlement agreement, TIN agreed to pay $7.0 million to resolve the direct and indirect purchaser class actions. On August 20, 2015, the court entered orders finally approving USG and TIN's settlements with the direct and indirect purchaser plaintiffs. Following completion of the initial discovery, the Company and remaining co-defendants moved for summary judgment. On February 18, 2016, the court denied the Company's motion for summary judgment, and granted summary judgment in favor of CertainTeed. On June 16, 2016, Lafarge entered into an agreement with counsel for the direct purchaser class under which it agreed to settle all claims against it for $23.0 million. The court entered an order finally approving this settlement on December 7, 2016. On July 28, 2016, Lafarge entered into an agreement with counsel representing the indirect purchaser class under which it agreed to settle all claims against it for $5.2 million, which was approved by the court on February 28, 2017. On July 14, 2016, the Company's motion for permission to appeal the summary judgment decision to the U.S. Court of Appeals for the Third Circuit was denied. Direct purchaser plaintiffs and indirect purchaser plaintiffs filed their motions for class certification on August 3, 2016 and October 12, 2016, respectively. On August 23, 2017, the court granted the direct purchaser plaintiffs' motion for class certification and certified a class consisting of all persons or entities that purchased paper-backed gypsum wallboard in the United States from January 1, 2012 through January 31, 2013 directly from American Gypsum, the Company, Lafarge, New NGC, PABCO, USG, and/or L&W Supply Corporation (which was a subsidiary of USG Corporation during the class period). On September 6, 2017, American Gypsum, the Company, New NGC, and PABCO filed a petition with the U.S. Court of Appeals for the Third Circuit seeking interlocutory appeal of the district court's decision granting the direct purchaser plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(f). The Third Circuit denied the Defendant's petition on October 27, 2017. On August 24, 2017, the court denied the indirect purchaser plaintiffs' motion for class certification. On September 7, 2017, the indirect purchaser plaintiffs filed a petition with the Third Circuit appealing the district court's denial of their motion for class certification. The Third Circuit denied the indirect purchaser plaintiffs' petition on October 12, 2017. On December 29, 2017 American Gypsum and the Company, as well as New NGC, Inc. ("New NGC"), and PABCO Building Products, LLC ("PABCO"), which are not affiliated with the Company, entered into a settlement agreement (the "Direct Purchaser Settlement Agreement") with counsel representing the direct purchaser class to settle all claims made against the Company, American, New NGC and PABCO in the direct purchaser class action. The Direct Purchaser Settlement Agreement, in which the Company and American deny all wrongdoing, also includes releases by the participating class members of the Company and American as well as their subsidiaries, affiliates, and other related parties, for the time period from January 1, 2012 through the date of execution of the Direct Purchaser Settlement Agreement. The Direct Purchaser Settlement Agreement grants the Company, American, New NGC, and PABCO the right to terminate the Direct Purchaser Settlement Agreement in the event an agreed upon percentage of potential class members opt-out of the Direct Purchaser Settlement Agreement. Additionally, the Direct Purchaser Settlement Agreement is conditioned on final approval of the District Court. On January 5, 2018 American Gypsum, New NGC, and PABCO entered into a settlement agreement (the "Indirect Purchaser Settlement Agreement) with counsel representing the indirect purchaser class to settle all claims against American Gypsum, New NGC and PABCO in the indirect purchaser class action. The Indirect Purchaser Settlement Agreement is conditioned on final approval of the District Court. Under the Direct and Indirect Purchaser Settlement Agreements, the Company and American agreed to pay a total of approximately $39.1 million in cash to settle the claims against them. Eagle Materials said "At December 31, 2017 we accrued the total amount of the two settlements and these amounts are expected to be paid in the next twelve months." Eagle Materials Inc. makes, distributes, and sells gypsum wallboard, Portland cement, recycled paperboard, and concrete and aggregates. The company is based in Dallas, Texas. EAGLE MATERIALS: Discovery Ongoing in Homebuilders' Suit -------------------------------------------------------- Eagle Materials Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that discovery is ongoing in a lawsuit by homebuilders. On March 17, 2015, a group of homebuilders filed a complaint against the defendants, including American Gypsum, based upon the same conduct alleged in the consolidated class action complaints. On March 24, 2015, the JPML transferred this action to the multidistrict litigation already pending in the Eastern District of Pennsylvania. Following the transfer, the homebuilder plaintiffs filed two amended complaints, on December 14, 2015 and March 25, 2016. As a result of settlements reached with TIN and Lafarge, the homebuilder plaintiffs voluntarily dismissed their claims against TIN and Lafarge on June 6 and June 24, 2016, respectively. On January 31, 2017, the plaintiffs voluntarily dismissed their claims against CertainTeed. Discovery in this lawsuit is ongoing. Eagle Materials Inc. makes, distributes, and sells gypsum wallboard, Portland cement, recycled paperboard, and concrete and aggregates. The company is based in Dallas, Texas. EBIX INC: Trial in Stockholder Lawsuit Scheduled for August 2018 ---------------------------------------------------------------- Ebix, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a trial is scheduled for August 2018 in stockholder litigation. Following the announcement on May 1, 2013 of the Company's execution of a merger agreement with affiliates of Goldman Sachs & Co., twelve putative class action complaints challenging the proposed merger were filed in the Delaware Court of Chancery. These complaints named as Defendants some combination of the Company, its directors, Goldman Sachs & Co. and affiliated entities. On June 10, 2013, the twelve complaints were consolidated by the Delaware Court of Chancery, now captioned In re Ebix, Inc. Stockholder Litigation, CA No. 8526-VCS. On June 19, 2013, the Company announced that the merger agreement had been terminated pursuant to a Termination and Settlement Agreement dated June 19, 2013. After Defendants moved to dismiss the consolidated proceeding, Plaintiffs Desert States Employers & UFCW Union Pension Plan and Gilbert C. Spagnola (collectively, "Lead Plaintiffs") amended their operative complaint to drop their claims against Goldman Sachs & Co. and focus their allegations on an Acquisition Bonus Agreement ("ABA") between the Company and Robin Raina. On September 26, 2013, Defendants moved to dismiss the Amended Consolidated Complaint. On July 24, 2014, the Court issued its Memorandum Opinion that granted in large part the Company's Motion to Dismiss and narrowed the remaining claims. On September 15, 2014, the Court entered an Order implementing its Memorandum Opinion. On January 16, 2015, the Court entered an Order permitting Plaintiffs to file a Second Amended and Supplemented Complaint. On February 10, 2015, Defendants filed a Motion to Dismiss the Second Amended and Supplemented Complaint, which was granted in part and denied in part in a January 15, 2016 Memorandum Opinion and Order. On October 25, 2016, the Court entered an Order permitting Lead Plaintiffs to file a Verified Third Amended and Supplemented Class Action and Derivative Complaint, which made additional claims and added two directors as defendants. The Verified Third Amended and Supplemented Class Action and Derivative Complaint was then filed on October 26, 2016. On October 31, 2016, Lead Plaintiffs filed a Motion for Class Certification. On November 1, 2016, Lead Plaintiffs moved for partial summary judgment on Claims (ii), (iii), and (vi) as described below. The directors added as defendants in the Third Amended and Supplemented Class Action and Derivative Complaint moved to dismiss all Claims against them. The remaining Defendants moved to dismiss certain Claims, and filed answers to the other claims in the Verified Third Amended and Supplemented Complaint. On December 12, 2017, the Court postponed the pending hearing on the Plaintiffs' Motion for Class Certification and the Defendants' motions to dismiss and, instead, granted the Plaintiffs leave to file a Verified Fourth Amended and Supplemented Class Action and Derivative Complaint, which pleading was filed on January 19, 2018. The claims in the fourth amended complaint are as follows: (i) a purported class and derivative claim for breach of fiduciary duty for improperly maintaining the ABA as an unreasonable anti- takeover device; (ii) a purported class claim for breach of the fiduciary duty of disclosure to the stockholders with respect to the Company's 2010 Proxy Statement and 2010 Stock Incentive Plan; (iii) a purported derivative claim for breach of fiduciary duty to the Company in causing incentive compensation to be awarded under the 2010 Stock Incentive Plan; (iv) a purported class and derivative claim for breach of fiduciary duty in adopting certain bylaw amendments on December 19, 2014; (v) a purported class and derivative claim seeking invalidation of the December 19, 2014 bylaw amendments under Delaware law; (vi) a purported claim for breach of fiduciary duty for not duly adopting the ABA at the July 15, 2009 Board meeting, and seeking declaratory relief invalidating the ABA; (vii) a purported claim for breach of the fiduciary duty of disclosure to the stockholders with respect to the ABA, and seeking declaratory relief invalidating the ABA; (viii) a purported claim seeking invalidation of the 2008 Stockholder Meeting, 2008 Certificate Amendment, 2008 Stock Split and subsequent corporate actions; (ix) a purported class claim for breach of fiduciary duty, and seeking declaratory relief invalidating the 2016 CEO Bonus Plan because of incomplete disclosures with respect to the ABA; and (x) for breach of fiduciary duty and declaratory judgment relating to the interpretation of the ABA. Lead Plaintiffs seek declaratory relief with respect to the ABA, the 2010 Stock Incentive Plan, the 2010 Proxy Statement, the bylaw amendments, the 2008 Stockholder Meeting, the 2008 Certificate Amendment, the 2008 Stock Split, and the 2016 CEO Bonus Plan. Lead Plaintiffs also seek compensatory damages, interest, and attorneys' fees and costs, all in unspecified amounts. A trial is scheduled for August 2018. The Company denies any liability and intends to defend the action vigorously. Ebix, Inc. and subsidiaries is an international supplier of on- demand software and e-commerce solutions to the insurance, healthcare and financial industries, as well as e-governance solutions to governmental agencies in the health and education sectors. EGALET CORP: Still Defends Combined Pennsylvania Class Actions -------------------------------------------------------------- Egalet Corporation continues to defend itself against a consolidated securities class action in Pennsylvania, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On January 27, 2017 and February 10, 2017, respectively, two putative securities class actions were filed in the U.S. District Court for the Eastern District of Pennsylvania that named as defendants Egalet Corporation and current officers Robert S. Radie and Stanley J. Musial, and former officer Jeffrey M. Dayno. These two complaints, captioned Mineff v. Egalet Corp. et al., No. 2:17-cv-00390-MMB and Klein v. Egalet Corp. et al., No. 2:17- cv-00617-MMB, assert securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") on behalf of putative classes of persons who purchased or otherwise acquired Egalet Corporation securities between December 15, 2015 and January 9, 2017. On May 1, 2017, the Court entered an order consolidating the two cases before it, appointing the Egalet Investor Group (consisting of Joseph Spizzirri, Abdul Rahiman and Kyle Kobold) as lead plaintiff and approving their selection of lead and liaison counsel. On July 3, 2017, the plaintiffs filed their consolidated amended complaint, which named the same defendants and also asserts claims for purported violations of Sections 10(b) and 20(a) of the Exchange Act. Plaintiffs bring their claims individually and on behalf of a putative class of all persons who purchased or otherwise acquired shares of the Company between November 4, 2015 and January 9, 2017 inclusive. The consolidated amended complaint bases its claims on allegedly false and/or misleading statements and/or failures to disclose information about the likelihood that ARYMO ER would be approved for intranasal abuse-deterrent labeling. The Company said, "The defendants moved to dismiss the Consolidated Amended Complaint on September 1, 2017, the plaintiffs filed their opposition on October 31, 2017, and the defendants filed their reply on December 8, 2017. The Court heard oral arguments on the motion to dismiss on February 20, 2018, and entered an order pursuant to which the plaintiffs filed a motion for leave to file a second amended complaint on March 6, 2018, the defendants responded on March 20, 2018 and the plaintiffs filed their reply on March 27, 2018. The Company disputes the allegations in the lawsuit and intends" Egalet Corporation is a fully integrated specialty pharmaceutical company developing, manufacturing and commercializing innovative treatments for pain and other conditions. ELIZABETH ARDEN: Website Not Accessible to Blind, Wu Claims ----------------------------------------------------------- KATHY WU AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, the Plaintiffs, v. ELIZABETH ARDEN, INC., the Defendant, Case No. 1:18-cv-04301-AT (S.D.N.Y., May 14, 2018), seeks permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's websites will become and remain accessible to blind and visually-impaired consumers. According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using her computer. The Plaintiff brings her civil rights action against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of Plaintiff's rights under the Americans with Disabilities Act. Because Defendant's websites, www.elizabetharden.com and www.thereddoor.com, are not equally accessible to blind and visually-impaired consumers, they violate the ADA.[BN] The Plaintiff is represented by: Dana L. Gottlieb, Esq. Jeffrey M. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228 9795 Facsimile: (212) 982 6284 E-mail: nyjg@aol.com danalgottlieb@aol.com ENBRIDGE ENERGY: Trial in Delaware Suit Set for 2Q 2019 ------------------------------------------------------- Enbridge Energy Management, L.L.C. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that trial for the third amended complaint in a class action commenced by Peter Brinckerhoff in the Court of Chancery of the State of Delaware is "currently scheduled for the second quarter of 2019." The Company said, "On July 20, 2015, plaintiff Peter Brinckerhoff (the Plaintiff), individually and as trustee of the Peter R. Brinckerhoff Trust, filed a Verified Class Action and Derivative Complaint in the Court of Chancery of the State of Delaware against the General Partner, Enbridge, Enbridge Energy Partner, LP., Enbridge Pipelines (Alberta Clipper) L.L.C., the Enbridge Energy, Limited Partnership, us, and the following individuals: Jeffrey A. Connelly, Rebecca B. Roberts, Dan A. Westbrook, J. Richard Bird, J. Herbert England, C. Gregory Harper, D. Guy Jarvis, Mark A. Maki, and John K. Whelen, (collectively, the Director Defendants). The initial Complaint asserted both class action claims on behalf of holders of the Partnership's Class A Common Units, as well as derivative claims brought on behalf of the Partnership. The Plaintiff's claims arose out of the January 2, 2015 repurchase by the Partnership of the General Partner's 66.67% interest in the pipeline that runs from the Canadian international border near Neche, North Dakota to Superior, Wisconsin on the Partnership's Lakehead System (Alberta Clipper Pipeline), known as the 2015 Transaction. First, the Plaintiff alleged that the 2015 Transaction improperly amended without Public Unitholder consent the Sixth Amended and Restated Agreement of Limited Partnership (the LPA) so as to allocate to the Public Unitholders gross income that should have been allocated to the General Partner (the Special Tax Allocation). Second, the Plaintiff alleged that the Partnership paid an unfair price for the General Partner's 66.67% interest in the Alberta Clipper Pipeline such that the 2015 Transaction breached the LPA because it was not fair and reasonable to the Partnership. The initial Complaint asserted claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, breach of residual fiduciary duties, tortious interference, aiding and abetting, and rescission and reformation." "On April 29, 2016, the Court of Chancery granted Enbridge's and the Director Defendants' motion to dismiss and dismissed the case in its entirety. On May 26, 2016 the Plaintiff appealed that dismissal to the Delaware Supreme Court. On March 20, 2017, the Delaware Supreme Court reversed in part and affirmed in part the ruling of the Court of Chancery. Specifically, the Delaware Supreme Court affirmed that the enactment of the Special Tax Allocation did not breach the LPA, but reversed on the question of whether the Plaintiff had adequately alleged that the price the Partnership paid in the 2015 Transaction, including the Special Tax Allocation component, was fair and reasonable to the Partnership. On November 15, 2017, Plaintiff filed a Verified Second Amended Complaint (the Second Amended Complaint). The Second Amended Complaint added Piper Jaffray & Co. as successor to Simmons & Company International (Simmons) as a direct Defendant. Simmons acted as the financial advisor to our Special Committee in the 2015 Transaction. The Second Amended Complaint also revised many of the allegations against Enbridge and the Director Defendants. On December 18, 2017, all Defendants except Simmons filed their brief in support of their motion to dismiss the Second Amended Complaint. On January 19, 2018, Simmons filed its brief in support of its motion to dismiss the Second Amended Complaint. "On February 28, 2018, Plaintiff filed a Motion for Leave to File a Verified Third Amended Complaint and a Motion to Intervene on behalf of a proposed new plaintiff, Judy Mesirov (subsequently amended). On March 23, 2018, Plaintiff filed a Verified Third Amended Complaint and a Motion for Voluntary Dismissal of Brinckerhoff. On April 3, 2018, all Defendants filed their briefs in support of their motions to dismiss the Third Amended Complaint. The parties are currently in discovery, with trial currently scheduled for the second quarter of 2019." Enbridge Energy Management, L.L.C. is a limited partner of Enbridge Energy Partners, L.P., (the Partnership), through its ownership of i-units, a special class of the Partnership's limited partner interests. ENBRIDGE INC: Agrees to Pay US$175,000 for Fees and Expenses ------------------------------------------------------------ Enbridge Inc. said in a Form 8-K filing with the U.S. Securities and Exchange Commission that the company has agreed to pay US$175,000 to plaintiff's counsel for attorneys' fees and reimbursement of expenses in full satisfaction of their claim for attorneys' fees and expenses in the action related to the merger with Spectra Energy Corp. On September 5, 2016, Spectra Energy Corp ("Spectra") and Enbridge Inc. (the "Company") entered into an Agreement and Plan of Merger pursuant to which the Company, through its subsidiary Sand Merger Sub, Inc. ("Merger Sub"), would acquire all of the outstanding Spectra stock in a stock-for-stock merger transaction, which valued Spectra's stock at approximately US$28 billion. Prior to the consummation of the merger on February 27, 2017, purported stockholders of Spectra filed six putative class action lawsuits that challenged the proposed merger with the Company. The lawsuits were filed in the United States District Court for the Southern District of Texas and, with respect to one of the lawsuits, in the Court of Chancery for the State of Delaware. The lawsuits alleged, among other things, that Spectra and its board of directors breached their fiduciary duties (in the Delaware lawsuit) and violated Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder (in the Southern District of Texas lawsuits), as applicable, by issuing or causing to be issued an allegedly materially misleading and incomplete preliminary proxy statement in connection with the proposed merger. The Company and Merger Sub are also named as defendants in the Delaware lawsuit, and the Delaware complaint alleges, among other things, that the Company and Merger Sub aided and abetted Spectra's board of directors' alleged breach of fiduciary duties. Plaintiffs in all actions sought as relief, among other things, an injunction against the merger, rescission of the merger to the extent it is already implemented, declaratory relief, costs and attorneys' fees, and/or damages. The cases in Texas were voluntarily dismissed without prejudice by the plaintiffs. On May 31, 2017, the parties stipulated to dismiss the Delaware action with prejudice as to the named plaintiff. The Court retained jurisdiction solely for the purpose of adjudicating plaintiff's counsel's anticipated application for an award of attorneys' fees and reimbursement of expenses in connection with certain supplemental disclosures. The Company subsequently agreed to pay US$175,000 to plaintiff's counsel for attorneys' fees and reimbursement of expenses in full satisfaction of their claim for attorneys' fees and expenses in the action. The Court has not been asked to review, and will pass no judgment on, the payment of the attorneys' fees and expenses or their reasonableness. Enbridge Inc. is a Canadian multinational energy transportation company based in Calgary, Alberta. It focuses on the transportation, distribution and generation of energy, primarily in North America. ENDOLOGIX INC: "Ortiz" Settlement Has Final Approval ---------------------------------------------------- In the case, Steven M. Ortiz Vs. Endologix, Inc., the Court on Feb. 9, 2018, entered a Second Revised Order Granting Motion For Final Approval of Class Action Settlement. Endologix, 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 on September 9, 2016, former employee Steven M. Ortiz filed a class action lawsuit against the Company in Orange County Superior Court, claiming the Company's failure to pay all overtime wages owing; failure to provide meal periods and failure to pay meal period premiums; failure to pay all wages owed at time of termination seeking waiting time penalties under Labor Code section 203; failure to provide accurate wage statements; and violations of Business and Professions Code section 17200 and alleging claims for penalties under the Private Attorneys General Act of 2004. While the Company contests the allegations asserted in the litigation, a mediation was held on February 24, 2017 at which time the parties agreed to settle the case for $750,000. The court has given final approval to the settlement agreement and the settlement funds have been deposited with the class administrator. The Company said the court was anticipated to enter final judgment in this case in March 2018, which would officially conclude this litigation. Endologix, Inc. develops, manufactures, markets, and sells medical devices for the treatment of abdominal aortic aneurysms in the United States and internationally. It offers minimally- invasive endovascular repair (EVAR) products, including AFX (Anatomical Fixation) endovascular AAA system, which is a minimally invasive delivery system; VELA Proximal Endograft, which is designed for the treatment of proximal aortic neck anatomies with AFX; and the ovation abdominal stent graft system. The company is based in Irvine, California. ENERGY TRANSFER: Still Defends Amended Regency Merger Complaint --------------------------------------------------------------- Energy Transfer Equity, L.P. (ETE) continues to defend itself against the amended class action complaint in a lawsuit related to the merger of Energy Transfer Partners, L.P. (ETP) and Regency Energy Partners LP, according to the ETE's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "Purported Regency unitholders filed lawsuits in state and federal courts in Dallas and Delaware asserting claims relating to the Regency-ETP merger (the "Regency Merger"). All but one Regency Merger-related lawsuits have been dismissed. "On June 10, 2015, Adrian Dieckman ("Dieckman"), a purported Regency unitholder, filed a class action complaint in the Court of Chancery of the State of Delaware (the "Regency Merger Litigation"), on behalf of Regency's common unitholders against Regency GP, LP; Regency GP LLC; ETE, ETP, ETP GP, and the members of Regency's board of directors ("Defendants"). "The Regency Merger Litigation alleges that the Regency Merger breached the Regency partnership agreement because Regency's conflicts committee was not properly formed, and the Regency Merger was not approved in good faith. On March 29, 2016, the Delaware Court of Chancery granted Defendants' motion to dismiss the lawsuit in its entirety. Dieckman appealed. On January 20, 2017, the Delaware Supreme Court reversed the judgment of the Court of Chancery. On May 5, 2017, Plaintiff filed an Amended Verified Class Action Complaint. Defendants then filed Motions to Dismiss the Amended Complaint and a Motion to Stay Discovery on May 19, 2017. On February 20, 2018, the Court of Chancery issued an Order granting in part and denying in part the motions to dismiss, dismissing the claims against all defendants other than Regency GP, LP and Regency GP LLC. On March 6, 2018, Defendants filed their Answer to Plaintiff's Verified Amended Class Action Complaint. "Defendants cannot predict the outcome of the Regency Merger Litigation or any lawsuits that might be filed subsequent to the date of this filing; nor can Defendants predict the amount of time and expense that will be required to resolve the Regency Merger Litigation. Defendants believe the Regency Merger Litigation is without merit and intend to vigorously defend against it and any others that may be filed in connection with the Regency Merger." Energy Transfer Equity is based in Dallas, Texas, a sister partnership to Energy Transfer Partners. It specializes in the storage and transportation of natural gas. ENERGY TRANSFER: Still Defends Issuance Litigation in Delaware -------------------------------------------------------------- Energy Transfer Equity, L.P. (ETE), among other defendants, continue to face unitholder litigation relating to the issuance of the Company's Series A Convertible Preferred Units (the "Issuance"), according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On April 12, 2016, two purported ETE unitholders (the "Issuance Plaintiffs") filed putative class action lawsuits against ETE, LE GP, Kelcy Warren, John McReynolds, Marshall McCrea, Matthew Ramsey, Ted Collins, K. Rick Turner, William Williams, Ray Davis, and Richard Brannon (collectively, the "Issuance Defendants") in the Delaware Court of Chancery (the "Issuance Litigation"). Another purported ETE unitholder, Chester County Employees' Retirement Fund, later joined the Issuance Litigation. The Issuance Plaintiffs allege that the Issuance breached various provisions of ETE's partnership agreement. The Issuance Plaintiffs seek, among other things, preliminary and permanent injunctive relief that (a) prevents ETE from making distributions to holders of the Series A Convertible Preferred Units and (b) invalidates an amendment to ETE's partnership agreement that was adopted on March 8, 2016 as part of the Issuance. On August 29, 2016, the Issuance Plaintiffs filed a consolidated amended complaint, and in addition to the injunctive relief, seek class-wide damages allegedly resulting from the Issuance. The matter was tried in front of Vice Chancellor Glasscock on February 19-21, 2018. Post-trial arguments were heard on April 16, 2018. The Issuance Defendants cannot predict the outcome of the Issuance Litigation or any lawsuits that might be filed subsequent to the date of this filing; nor can the Issuance Defendants predict the amount of time and expense that will be required to resolve the Issuance Litigation. The Issuance Defendants believe the Issuance Litigation is without merit and intend to defend vigorously against it and any other actions challenging the Issuance. Energy Transfer Equity is based in Dallas, Texas, a sister partnership to Energy Transfer Partners. It specializes in the storage and transportation of natural gas. ENVISION HEALTHCARE: Still Defends Securities Class Lawsuits ------------------------------------------------------------ Envision Healthcare Corporation continues to face purported class actions over alleged violations of the federal securities laws, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the Quarterly Period Ended March 31, 2018. On August 4, 2017, a shareholder filed a purported class action in the United States District Court for the Middle District of Tennessee (M.D. Tenn.) against the Company and several of its officers and former officers alleging that the Company and the individual defendants violated the federal securities laws by making allegedly false and misleading statements and failing to disclose certain information. On September 29, 2017, and October 23, 2017, respectively, two purported class actions were filed in the same court making similar allegations. The Court subsequently consolidated these cases into a single action. On November 20, 2017, a shareholder filed a purported class action in the M.D. Tenn. against the Company and its Board. The plaintiff generally alleges that the Company and/or certain of its officers breached various fiduciary duties and violated the federal securities laws. On December 12, 2017, and December 15, 2017, respectively, two purported class actions were filed in the same court raising essentially the same allegations. The Company believes these claims are without merit and intends to vigorously defend these actions. Given the preliminary stage of these matters, the Company is unable to estimate the amount of potential damages, if any, in any of these actions. Envision Healthcare Corporation is a provider of emergency medical services in the U.S. Envision operates an extensive emergency department, hospital, anesthesiology, radiology, and neonatology physician outsourcing segment. ESSA BANCORP: Awaits Court's Final OK on UCC Settlement ------------------------------------------------------- ESSA Bancorp, Inc. is awaiting the Court's final approval of its agreement to resolve a potential class action against ESSA Bank & Trust (The Bank) related to breaches of the Pennsylvania Uniform Commercial Code, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Bank was named as the defendant in an action commenced on September 13, 2016 by one plaintiff. The plaintiff alleges that the Bank repossessed motor vehicles, sold the vehicles and sought to collect deficiency balances in a manner that did not comply with the notice requirements of the Pennsylvania Uniform Commercial Code ("UCC"). The plaintiff seeks to pursue the action as a class action on behalf of the named plaintiff and other similarly situated plaintiffs who had their automobiles repossessed and seek to recover damages under the UCC. The Bank denies the plaintiff's allegations. The parties attended mediation in October, 2017 where they reached an agreement to resolve the claims asserted against the Bank on a class wide basis. The terms of the settlement calls for the Bank to make a payment of US$1,325,000 to the plaintiffs. The Bank's insurance carrier will cover the payment made by the Bank in excess of US$125,000 retention. The court has entered an order preliminarily approving the settlement. The court has set a final approval hearing for May 2018. ESSA Bancorp, Inc. operates as the holding company for ESSA Bank & Trust that provides a range of financial services to individuals, families, and businesses in Pennsylvania. It was founded in 1916 and is based in Stroudsburg, Pennsylvania. ESSA BANCORP: Subsidiary Still Defends Suit over RESPA Breaches --------------------------------------------------------------- ESSA Bancorp, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that preliminary arguments are due in June 2018 in a potential class action against ESSA Bank & Trust (the "Bank") related to alleged violation of the Real Estate Settlement Procedures Act. The Company states, "The Bank was named as a defendant in an action commenced on December 8, 2016 by one plaintiff who will also seek to pursue this action as a class action on behalf of the entire class of people similarly situated. The plaintiff alleges that a bank previously acquired by ESSA Bancorp, Inc., in the process of making loans, received unearned fees and kickbacks in violation of the Real Estate Settlement Procedures Act. In an order dated January 29, 2018, the court granted the Bank's motion to dismiss the case. The plaintiff has appealed the court's ruling. Preliminary arguments are due in June 2018 to the extent that this litigation could result in exposure to the bank. The amount is not currently estimable." ESSA Bancorp, Inc. operates as the holding company for ESSA Bank & Trust that provides a range of financial services to individuals, families, and businesses in Pennsylvania. It was founded in 1916 and is based in Stroudsburg, Pennsylvania. EZCORP INC: Securities Suit in Texas in Discovery Stage ------------------------------------------------------- Ezcorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the case entitled, In re EZCORP, Inc. Securities Litigation (Master File No. 1:15-cv-00608-SS), is now in the discovery stage. On July 20, 2015, Wu Winfred Huang, a purported holder of Class A Common Stock, for himself and on behalf of other similarly situated holders of Class A Common Stock, filed a lawsuit in the United States District Court for the Western District of Texas styled Huang v. EZCORP, Inc., et al. (Case No. 1:15-cv-00608-SS). The complaint names as defendants EZCORP, Inc., Stuart I. Grimshaw (our chief executive officer) and Mark E. Kuchenrither (our former chief financial officer) and asserts violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The original complaint related to the Company's announcement on July 17, 2015 that it will restate the financial statements for fiscal 2014 and the first quarter of fiscal 2015, and alleged generally that the Company issued materially false or misleading statements concerning the Company, its finances, business operations and prospects and that the Company misrepresented the financial performance of the Grupo Finmart business. On August 14, 2015, a substantially identical lawsuit, styled Rooney v. EZCORP, Inc., et al. (Case No. 1:15-cv-00700-SS) was also filed in the United States District Court for the Western District of Texas. On September 28, 2015, the plaintiffs in these two lawsuits filed an agreed stipulation to be appointed co-lead plaintiffs and agreed that their two actions should be consolidated. On November 3, 2015, the Court entered an order consolidating the two actions under the caption In re EZCORP, Inc. Securities Litigation (Master File No. 1:15-cv-00608-SS), and appointed the two plaintiffs as co-lead plaintiffs, with their respective counsel appointed as co-lead counsel. On January 11, 2016, the plaintiffs filed an Amended Class Action Complaint (the "Amended Complaint"). In the Amended Complaint, the plaintiffs seek to represent a class of purchasers of our Class A Common Stock between November 6, 2012 and October 20, 2015. The Amended Complaint asserts that the Company and Mr. Kuchenrither violated Section 10(b) of the Securities Exchange Act and Rule 10b-5, issued materially false or misleading statements throughout the proposed class period concerning the Company and its internal controls, specifically regarding the financial performance of Grupo Finmart. The plaintiffs also allege that Mr. Kuchenrither, as a controlling person of the Company, violated Section 20(a) of the Securities Exchange Act. The Amended Complaint does not assert any claims against Mr. Grimshaw. On February 25, 2016, defendants filed a motion to dismiss the lawsuit. The plaintiff filed an opposition to the motion to dismiss on April 11, 2016, and the defendants filed their reply on May 11, 2016. The Court held a hearing on the motion to dismiss on June 22, 2016. On October 18, 2016, the Court granted the defendants' motion to dismiss and dismissed the Amended Complaint without prejudice. The Court gave the plaintiffs 20 days (until November 7, 2016) to file a further amended complaint. On November 4, 2016, the plaintiffs filed a Second Amended Consolidated Class Action Complaint ("Second Amended Complaint"). The Second Amended Complaint raises the same claims dismissed by the Court on October 18, 2016, except plaintiffs now seek to represent a class of purchasers of EZCORP's Class A Common Stock between November 7, 2013 and October 20, 2015 (instead of between November 6, 2012 and October 20, 2015). On December 5, 2016, defendants filed a motion to dismiss the Second Amended Compliant. The plaintiffs filed their opposition to the motion to dismiss on January 6, 2017, and the defendants filed their reply brief on January 20, 2017. On May 8, 2017, the Court granted the defendants' motion to dismiss with regard to claims related to accounting errors relating to Grupo Finmart's bad debt reserve calculations for "nonperforming" loans, but denied the motion to dismiss with regard to claims relating to accounting errors related to certain sales of loan portfolios to third parties. The case is now in the discovery stage. Ezcorp said "We cannot predict the outcome of the litigation, but we intend to defend vigorously against all allegations and claims." EZCORP is a Delaware corporation headquartered in Austin, Texas. We are a leading provider of pawn loans in the United States and Latin America. FAA SERRAMONTE: Luu Sues over Incomplete Car Accessories -------------------------------------------------------- LONG NGOC T. LUU, an individual, and on behalf of himself, and all others similarly situated, the Plaintiff, v. FAA SERRAMONTE L, INC., an active California corporation, dba LEXUS OF SERRAMONTE, SUE LUO, an individual, JOBELLE SALINDONG, an individual, and, DOES 1 through 500, inclusive, the Defendant, Case No. (S.D. Fla., May 14, 2018), seeks to recover damages caused by the Defendant's violation of the Consumers Legal Remedies Act. The Defendant offered to sell to Plaintiff a vehicle for a special Costco price with all the accessories the Plaintiff ordered. The Defendant: -- represented that the car the Plaintiff purchased had 3 accessories but did not (approximately $2,000.00); -- charged $541.00 more than the advertised price of $48,459.00; -- failed to add a paint protection product ($1,079.00); and -- represented that the Plaintiff did not qualify for an advertised APR of 2.99% despite his Experian credit score of 781. Faa Serramonte L, Inc. retails automobiles. The Company offers new and used cars, vans, trucks, sport utility vehicles, parts, and accessories, as well as provides financing, maintenance, and repair services.[BN] Attorney for Plaintiff: Louis A. Liberty, Esq. LOUIS LIBERTY & ASSOCIATES, a PLC 553 Pilgrim Drive, Suite Foster City, CA 94404 Telephone: (650) 341 0300 E-mail: lou@carlawyer.com FAIRMOUNT SANTROL: Faces 4 Putative Class Actions on Merger Deal ---------------------------------------------------------------- Fairmount Santrol Holdings Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that it faces four putative class actions regarding its merger agreement with Unimin Corporation. On December 11, 2017, the Company entered into a merger agreement with Unimin Corporation ("Unimin") and certain other parties with respect to the proposed combination of the businesses of Unimin and Fairmount Santrol. The merger agreement provides that, upon the satisfaction or waiver of the conditions contained in the agreement, a direct wholly owned subsidiary of Unimin will be merged with and into Fairmount Santrol, with Fairmount Santrol surviving such merger and becoming a direct wholly owned subsidiary of Unimin (the "Merger"). In accordance with the terms of the Merger agreement ("Merger Agreement"), Fairmount Santrol stockholders in the aggregate (including holders of certain Fairmount Santrol equity awards) will receive US$170,000 in cash and approximately 35% of the common stock of Unimin, with SCR-Sibelco NV ("Sibelco"), the existing parent company of Unimin, owning the remaining 65%. The Merger is subject to, among other things, approval by Fairmount Santrol's stockholders, listing of Unimin's common stock on the New York Stock Exchange ("NYSE"), and certain regulatory approvals. The Company will hold a special meeting of its stockholders on May 25, 2018 (the "Special Meeting") to vote to approve the Merger, among other items. Upon completion of the Merger, the Company would delist and no longer trade on the NYSE. The transaction is expected to close in mid-2018, subject to satisfaction of the closing conditions. Were the transaction to close, Internal Revenue Code Sections 382 and 383 could limit post-merger annual utilization of U.S. federal net operating losses and tax credits. On April 24, 2018, an alleged stockholder of the Company filed a putative class action against the Company and its directors, captioned Jennings v. Fairmount Santrol Holdings Inc., et al., No. 1:18-cv-00931, in the United States District Court for the Northern District of Ohio. On April 27, 2018, another alleged stockholder filed a putative class action against the Company and its directors, captioned Klein v. Fairmount Santrol Holdings Inc., et al., No. 1:18-cv- 00646, in the United States District Court for the District of Delaware. On May 1, 2018, a third alleged stockholder filed a putative class action against the Company and its directors, captioned Rosello v. Fairmount Santrol Holdings Inc., et al., No. 1:18-cv- 01002, in the United States District Court for the Northern District of Ohio. On May 4, 2018, a fourth alleged stockholder of the Company filed a putative class action against the Company and its directors, captioned Scarantino v. Fairmount Santrol Holdings Inc., et al., No. 1:18-cv-01047, in the United States District Court for the Northern District of Ohio. The lawsuits generally allege that the Company and its directors violated the federal securities laws by issuing allegedly misleading disclosures in connection with the Merger, pursuant to the terms of the Merger Agreement, and seek, among other things, to enjoin the Special Meeting at which stockholders of the Company will vote on, among other items, a proposal to adopt the Merger Agreement. The Company and its directors believe these allegations lack merit. Fairmount Santrol Holdings Inc., together with its subsidiaries, provides sand-based proppant solutions for exploration and production companies. The Company operates in two segments, Proppant Solutions and Industrial & Recreational Products. The company was formerly known as FMSA Holdings Inc. and changed its name to Fairmount Santrol Holdings Inc. in July 2015. Fairmount Santrol Holdings Inc. was incorporated in 1986 and is headquartered in Chesterland, Ohio. FIRST BANCORP: Defendants to Seek Supreme Court Review ------------------------------------------------------ First BanCorp. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the defendants intend to file a writ of Certiorari in the Supreme Court for the case captioned Ramirez Torres, et al. v Banco Popular de Puerto Rico, et al. FirstBank Puerto Rico is named a defendant in a class action complaint, filed on February 17, 2017 at the Court of First Instance in San Juan, Puerto Rico, captioned Ramirez Torres, et al. v. Banco Popular de Puerto Rico, et al. The complaint seeks damages and preliminary and permanent injunctive relief on behalf of the purported class against Banco Popular de Puerto Rico and other financial institutions with insurance agency subsidiaries in Puerto Rico. Plaintiffs contend that in November 2015, Antilles Insurance Company obtained approval from the Puerto Rico Insurance Commissioner to market an endorsement that allowed its customers to obtain a reimbursement of their insurance premium for good experience, but that defendants failed to offer this product or disclose its existence to their customers, favoring other products instead, in violation of their fiduciary duties as insurance producers. Plaintiffs seek a determination that defendants unlawfully failed to comply with their fiduciary duty to disclose the existence of this new insurance benefit from this carrier, as well as double or treble damages (the latter subject to a determination that defendants engaged in anti-monopolistic practices in failing to offer this product). On July 31, 2017, the court entered judgment dismissing the complaint with prejudice. On August 30, 2017, Plaintiffs filed an Appeal before the Court of Appeals and FirstBank filed its opposition. On March 20, 2018, the Court of Appeals entered Judgment revoking the Court of First Instance, ordering a class certification hearing as well as a preliminary injunction hearing. The Company said, "Our lawyers intend to file a writ of Certiorari in the Supreme Court." First Bancorp operates as the bank holding company for First Bank that provides banking products and services for individuals and small to medium-sized businesses primarily in North Carolina and northeastern South Carolina. The Company was founded in 1934 and is headquartered in Southern Pines, North Carolina. FLEETCOR TECHNOLOGIES: Still Defends Shareholder Class Lawsuit -------------------------------------------------------------- FleetCor Technologies, Inc. still defends itself against a shareholder class action lawsuit, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On June 14, 2017, a shareholder filed a class action complaint in the United States District Court for the Northern District of Georgia against the Company and certain of its officers and directors on behalf of all persons who purchased or otherwise acquired the Company's stock between February 5, 2016 and May 2, 2017. On October 13, 2017, the shareholder filed an amended complaint asserting claims on behalf of a putative class of all persons who purchased or otherwise acquired the Company's common stock between February 4, 2016 and May 3, 2017. The complaint alleges that the defendants made false or misleading statements regarding fee charges and the reasons for its earnings and growth in certain press releases and other public statements in violation of the federal securities laws. Plaintiff seeks class certification, unspecified monetary damages, costs, and attorneys' fees. The Company disputes the allegations in the complaint and intends to vigorously defend against the claims. Fleetcor is a global provider of commercial payment solutions. FLORIDA COURIER: Sobrinho Seeks Unpaid Overtime Pay under FLSA -------------------------------------------------------------- JEAN CARLOS SOBRINHO, on behalf of himself and all others similarly situated, the Plaintiff, v. SOUTH FLORIDA COURIER SYSTEMS, INC., a Florida Corporation, and GONZALO OCHOA, individually, the Defendants, Case No. 9:18-cv-80634-DMM (S.D. Fla., May 14, 2018), seeks to recover compensation and other relief under the Fair Labor Standards Act. The gravamen of this case is that the Plaintiff was a non-exempt employee hired by the Defendants on an hourly basis, but the Defendants willfully refused to compensate the Plaintiff, and all others similarly situated, for time and one half for each hour worked in excess of 40 hours per work week, as required under Federal law. During his employment, Defendants had Plaintiff, and all other similarly situated non-exempt employees under the FLSA, work for Defendants in excess of 40 hours per week. However, the Defendants willfully refused to compensate the Plaintiff, and all other similarly situated non-exempt employees under the FLSA. South Florida Courier Company provides courier services to Miami- Dade, Broward, and Palm Beach.[BN] The Plaintiff is represented by: Chad E. Levy, Esq. David M. Cozad, Esq. LAW OFFICES OF LEVY & LEVY, P.A. 1000 Sawgrass Corporate Parkway, Suite 588 Sunrise, FL 33323 Telephone: (954) 763 5722 Facsimile: (954) 763 5723 E-mail: chad@levylevylaw.com assistant@levylevylaw.com david@levylevylaw.com FOREMOST INSURANCE: "Scherrer" Remains in Missouri District Ct. --------------------------------------------------------------- Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied Scherrer's Motion to Remand the case, NELSON C. SCHERRER, individually and on behalf of others similarly-situated, Plaintiff, v. FOREMOST INSURANCE COMPANY OF GRAND RAPIDS MICHIGAN, Defendant, Case No. 4:17-cv-00855-JAR (E.D. Mo.). On Jan. 10, 2017, the Plaintiff filed his Petition for Declaratory and Class Action Relief in the Circuit Court of the City of St. Louis, Missouri, alleging the following: In August 2016, a severe rainstorm caused water damage to the living room, bedrooms, closets, foyer, hallways, bathroom, and kitchen of his St. Louis home. The house was covered by an insurance policy issued by the Defendant that indemnified him for structural damage. The Defendant confirmed that the damage was covered under the policy and sent an adjuster to inspect the structure. The adjuster calculated a replacement cost value ("RCV") of $53,834 but reduced that amount to account for depreciation of materials and labor, resulting in an actual cash value ("ACV") of $47,838. The Plaintiff received that amount less his deductible. The Plaintiff asserts that labor costs do not depreciate and that depreciating labor costs is inconsistent with the universally accepted premise that the fundamental purpose of property insurance is to provide indemnity to policy holders. On behalf of himself and the "thousands" of others whose ACVs were improperly reduced by labor cost depreciation, he filed suit, seeking a declaratory judgment that such depreciation is contrary to the language of the Defendant's policy and compensatory damages for its breach of contract. On March 8, 2017, the Defendant removed the suit to federal court, asserting that CAFA's $5 million jurisdictional threshold was likely met based on calculations based on market share and an industry average for depreciated labor cost per claim, in addition to other costs, which yielded a total of $15,496,198 in controversy. The Plaintiff now moves to remand the case, arguing that the Defendant's use of industry-wide averages and assumed numbers was unsupported by evidence and far too speculative to satisfy CAFA. Instead, the Plaintiff asserted, the greatest evidence-based amount in controversy was $4,196,887. The Court ordered limited discovery on the jurisdictional issue. Thereafter, the parties filed supplemental briefing incorporating the Defendant's actual claim data. Judge Ross holds that a fact finder might legally conclude, based on the Defendant's calculations, that the compensatory damages are greater than $5 million based on the Defendant's calculations. The Judge hastens to note the highly speculative nature of the Defendant's retention-rate-based assumptions, but reiterates that it needs only show that a fact-finder might accept its calculations, and the Judge finds that those calculations are reasonable and based on fact. Moreover, he concludes that the Defendant's computations are sufficient to meet CAFA's jurisdictional threshold even without including ongoing or future damages. Although he notes that the Plaintiff's calculations are more specific and therefore may better approximate the value of the claim of each person who falls within the definition of the proposed class, the Eighth Circuit has permitted computational methods even more general than the Defendant's. The Judge cannot say that the Plaintiff has established to a legal certainty that the CAFA claim is for less than $5 million. Accordingly, he will deny the Plaintiff's Motion to Remand. Because he has concluded that Defendant has met the jurisdictional amount based solely on compensatory damages, the Judge says he needs not decide whether and to what extent attorney's fees or declaratory judgment affect the amount in controversy. Accordingly, Judge Ross denied Scherrer's Motion to Remand. A full-text copy of the Court's March 27, 2018 Memorandum and Order is available at https://is.gd/RRiPWZ from Leagle.com. nelson C. Scherrer, individually and on behalf of all others similarly situated, Plaintiff, represented by Christopher E. Roberts -- croberts@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC, David T. Butsch -- dbutsch@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC, Joe D. Jacobson -- Jacobson@ArchCityLawyers.com -- JACOBSON PRESS, P.C. & Allen P. Press -- Press@ArchCityLawyers.com -- JACOBSON AND PRESS, P.C. Foremost Insurance Company Grand Rapids Michigan, Defendant, represented by Brian A. Lamping -- blamping@thompsoncoburn.com -- THOMPSON COBURN, LLP, Marilyn Marie Brown -- mbrown@jw.com -- JACKSON WALKER L.L.P., Paul M. Brown -- pbrown@thompsoncoburn.com -- THOMPSON COBURN, LLP & Stacy Allen -- stacyallen@jw.com -- JACKSON WALKER L.L.P. FRANKLIN RESOURCES: Discovery Continues in "Cryer" Suit ------------------------------------------------------- Franklin Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that discovery is continuing in a class action lawsuit captioned Cryer v. Franklin Resources, Inc., et al. in the United States District Court for the Northern District of California. On July 28, 2016, a former employee filed a class action lawsuit captioned Cryer v. Franklin Resources, Inc., et al. in the United States District Court for the Northern District of California against Franklin, the Franklin Templeton 401(k) Retirement Plan ("Plan") Investment Committee ("Investment Committee")and unnamed Investment Committee members. The plaintiff asserts a claim for breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), alleging that the defendants selected mutual funds sponsored and managed by the Company (the "Funds") as investment options for the Plan when allegedly lower-cost and better performing non-proprietary investment vehicles were available. The plaintiff also claims that the total Plan costs, inclusive of investment management and administrative fees, are excessive. The plaintiff alleges that Plan losses exceed $79.0 million and seeks, among other things, damages, disgorgement, rescission of the Plan's investments in the Funds, attorneys' fees and costs, and pre- and post-judgment interest. Franklin Resources said "Management strongly believes that the claims are without merit. Discovery is continuing in the Cryer action. Franklin will defend against both actions vigorously. Franklin cannot at this time predict the eventual outcome of the lawsuit or whether it will have a material negative impact on the Company, or reasonably estimate the possible loss or range of loss that may arise from any negative outcome." Franklin Resources, Inc. is a global investment management organization and derives its operating revenues and net income from providing investment management and related services to investors in jurisdictions worldwide through its investment products that include its sponsored funds, as well as institutional and high net-worth separate accounts. The company is based in San Mateo, California. FRANKLIN RESOURCES: "Fernandez" Suit Underway --------------------------------------------- Franklin Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the suit captioned Fernandez v. Franklin Resources Inc., et al. is at the pleading stage. On November 2, 2017, a second former employee, represented by the same law firm, filed another putative class action lawsuit relating to the Plan in the same court, captioned Fernandez v. Franklin Resources Inc., et al. This second action names the same defendants as those named in the Cryer action, but also includes as defendants the Franklin Board of Directors, individual current and former Franklin directors, and individual current and former Investment Committee members. The plaintiff in this second lawsuit seeks to assert the same ERISA breach of fiduciary duty claim asserted in the Cryer action, as well as claims for alleged prohibited transactions by virtue of the Plan's investments in the Funds and for an alleged failure to monitor the performance of the Investment Committee. The plaintiff alleges that Plan losses exceed $60.0 million and seeks the same relief sought in the Cryer action. Franklin Resources said "Management strongly believes that the claims are without merit. The action is at the pleadings stage. Franklin will defend against both actions vigorously. Franklin cannot at this time predict the eventual outcome of the lawsuit or whether it will have a material negative impact on the Company, or reasonably estimate the possible loss or range of loss that may arise from any negative outcome." Franklin Resources, Inc. is a global investment management organization and derives its operating revenues and net income from providing investment management and related services to investors in jurisdictions worldwide through its investment products that include its sponsored funds, as well as institutional and high net-worth separate accounts. The company is based in San Mateo, California. GENIE ENERGY: "Ferrare" Parties Await Report over Settlement ------------------------------------------------------------ Genie Energy Ltd. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the parties in the "Ferrare" class action are awaiting a report and recommendation with respect to final approval of the settlement. The final approval hearing took place on April 9, 2018. On March 13, 2014, named plaintiff, Anthony Ferrare, commenced a putative class-action lawsuit against IDT Energy, Inc. in the Court of Common Pleas of Philadelphia County, Pennsylvania. The complaint was served on IDT Energy on July 16, 2014. The named plaintiff filed the suit on behalf of himself and other former and current electric customers of IDT Energy in Pennsylvania with variable rate plans, whom he contends were injured as a result of IDT Energy's allegedly unlawful sales and marketing practices. On August 7, 2014, IDT Energy removed the case to the United States District Court for the Eastern District of Pennsylvania. On October 20, 2014, IDT Energy moved to stay or, alternatively, dismiss the complaint, as amended, by the named plaintiff. On November 10, 2014, the named plaintiff opposed IDT Energy's motion to dismiss and IDT Energy filed a reply memorandum of law in further support of its motion to dismiss. On June 10, 2015, the Court granted IDT Energy's motion to stay and denied its motion to dismiss without prejudice. The parties participated in mediation, and subsequently entered into a Settlement Agreement, which received preliminary approval from the Court on October 16, 2017. The Settlement Agreement is subject to entry of a final order by the Court approving the Settlement Agreement. The final approval hearing took place on April 9, 2018. The parties are awaiting a report and recommendation with respect to final approval of the settlement. Genie Energy Ltd., through its subsidiaries, operates as a retail energy provider; and an oil and gas exploration company. The company operates through three segments: Genie Retail Energy; Afek Oil and Gas, Ltd.; and Genie Oil and Gas. It was incorporated in 2001 and is headquartered in Newark, New Jersey. GENIE ENERGY: Parties Await Recommendation on "McLaughlin" Pact --------------------------------------------------------------- Genie Energy Ltd. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the parties in the "McLaughlin" class action lawsuit are awaiting a report and recommendation with respect to final approval of the settlement. The final approval hearing took place on April 9, 2018. On July 2, 2014, named plaintiff, Louis McLaughlin, filed a putative class-action lawsuit against IDT Energy, Inc. in the United States District Court for the Eastern District of New York, contending that he and other class members were injured as a result of IDT Energy's allegedly unlawful sales and marketing practices. The named plaintiff filed the suit on behalf of himself and two subclasses: all IDT Energy customers who were charged a variable rate for their energy from July 2, 2008, and all IDT Energy customers who participated in IDT Energy's rebate program from July 2, 2008. On January 22, 2016, the named plaintiff filed an amended complaint on behalf of himself and all IDT Energy customers in New York State against IDT Energy, Inc., Genie Retail Energy, Genie Energy International Corporation, and Genie Energy Ltd. (collectively, "IDT Energy"). On February 22, 2016, IDT Energy moved to dismiss the amended complaint, and the named plaintiff opposed that motion. The parties participated in mediation, and subsequently entered into a Settlement Agreement, which received preliminary approval from the Court on October 16, 2017. The Settlement Agreement is subject to entry of a final order by the Court approving the Settlement Agreement. The final approval hearing took place on April 9, 2018. The parties are awaiting a report and recommendation with respect to final approval of the settlement. Additional information on the case is available at: https://idtenergysettlement.com/ Genie Energy Ltd., through its subsidiaries, operates as a retail energy provider; and an oil and gas exploration company. The company operates through three segments: Genie Retail Energy; Afek Oil and Gas, Ltd.; and Genie Oil and Gas. It was incorporated in 2001 and is headquartered in Newark, New Jersey. GENIE ENERGY: Awaits Final Court OK on "Aks" Accord --------------------------------------------------- Genie Energy Ltd. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the parties in the "Aks" putative class action lawsuit are awaiting a report and recommendation with respect to final approval of the settlement. The final approval hearing took place on April 9, 2018. On July 15, 2014, named plaintiff, Kimberly Aks, commenced a putative class-action lawsuit against IDT Energy, Inc. in New Jersey Superior Court, Essex County, contending that she and other class members were injured as a result of IDT Energy's alleged unlawful sales and marketing practices. The named plaintiff filed the suit on behalf of herself and all other New Jersey residents who were IDT Energy customers at any time between July 11, 2008 and the present. The parties were engaged in discovery prior to the mediation. On April 20, 2016, the named plaintiff filed an amended complaint on behalf of herself and all IDT Energy customers in New Jersey against IDT Energy, Inc., Genie Retail Energy, Genie Energy International Corporation and Genie Energy Ltd. On June 27, 2016, defendants Genie Retail Energy, Genie Energy International Corporation and Genie Energy Ltd. filed a motion to dismiss the amended complaint. On August 26, 2016, the named plaintiff opposed that motion and IDT Energy filed a reply memorandum of law in further support of its motion to dismiss. The Court granted the motion to dismiss, but the parties agreed to set aside that decision to give the plaintiff an opportunity to submit opposition papers that had not been considered by the Court in rendering its decision. The parties participated in mediation, and subsequently entered into a Settlement Agreement, which received preliminary approval from the Court on October 16, 2017. The Settlement Agreement is subject to entry of a final order by the Court approving the Settlement Agreement. The final approval hearing took place on April 9, 2018. The parties are awaiting a report and recommendation with respect to final approval of the settlement. Genie Energy Ltd., through its subsidiaries, operates as a retail energy provider; and an oil and gas exploration company. The company operates through three segments: Genie Retail Energy; Afek Oil and Gas, Ltd.; and Genie Oil and Gas. It was incorporated in 2001 and is headquartered in Newark, New Jersey. GENIE ENERGY: Estimated Settlement Payments Reduced by $1.4-Mil. ---------------------------------------------------------------- Genie Energy Ltd. has reduced its recorded liability for the settlement payment to plaintiffs in three class action lawsuits by US$1.4 million, from US$9.0 million in the second quarter of 2017 to US$7.6 million in 2018 based on the claims received and related administrative costs, according to the Company's Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On July 5, 2017, the Company entered into a class action Settlement Agreement with the class action plaintiffs acting individually and on behalf of the entire class, in the lawsuits currently pending in Pennsylvania, New York, and New Jersey. The Company does not believe that there was any wrongdoing on its part, and is entering into the settlement to further its efforts to address its customers' concerns. Under the Settlement Agreement, the Company has agreed to pay certain amounts to resolve the lawsuits and obtain a release of claims that were asserted or could have been asserted in the lawsuits or that are related to or arise out of the conduct alleged in the lawsuits or similar conduct, wherever it may have occurred. The settlement payment includes payments to customers who timely make a claim, class counsel, and the named plaintiffs, as well as the cost of a claims administrator for administrating the claims process. In 2017, the Company estimated, based in part on historical participation rates, that its total settlement payment would be approximately US$9.0 million. In the second quarter of 2017, the Company recorded a liability of US$9.0 million for the settlement payment. The period for class members to make claims has since expired, and in 2018, based on the claims received and related administrative costs, the Company estimated that the total settlement payment will be approximately US$7.6 million. In the three months ended March 31, 2018, the Company reduced the liability for the settlement payment by US$1.4 million, reversed US$1.7 million of the revenue reduction recorded in 2017, and recorded expense of US$0.3 million that is included in "Selling, general and administrative expense". The Settlement Agreement was preliminarily approved by the Court on October 16, 2017. The Settlement Agreement is subject to entry of a final order by the Court approving the Settlement Agreement. The final approval hearing took place on April 9, 2018. The parties are awaiting a report and recommendation with respect to final approval of the settlement. Genie Energy Ltd., through its subsidiaries, operates as a retail energy provider; and an oil and gas exploration company. The company operates through three segments: Genie Retail Energy; Afek Oil and Gas, Ltd.; and Genie Oil and Gas. It was incorporated in 2001 and is headquartered in Newark, New Jersey. GLOBAL EAGLE: Notice of Appeal Filed in Hart Class Action --------------------------------------------------------- Global Eagle Entertainment Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended September 30, 2017, that the plaintiffs in a putative class action brought by putative stockholder M&M Hart Living Trust and Randi Williams, filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit from the Court's denial of the plaintiffs' motion to alter or amend the judgment. Global Eagle said "On February 23, 2017 and on March 17, 2017, following our announcement that we anticipated a delay in our 2016 Form 10-K filing and that our former CEO and former CFO would separate from us, three putative securities class action lawsuits were filed in United States District Court for the Central District of California." These lawsuits alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act against the company, its former CEO and two of its former CFOs. The plaintiffs voluntarily dismissed two of these lawsuits. The third lawsuit, brought by putative stockholder M&M Hart Living Trust and Randi Williams (the "Hart complaint"), alleged that the company and the other defendants made misrepresentations and/or omitted material information about the EMC Acquisition, the company's projected financial performance and synergies following that acquisition, and the impact of that acquisition on our internal controls over financial reporting. The plaintiffs sought unspecified damages, attorneys' fees and costs. On November 2, 2017, the Court granted the company and the other defendants' motion to dismiss the Hart complaint, and dismissed the action with prejudice. On November 30, 2017, the plaintiffs filed a motion to alter or amend the Court's previous judgment of dismissal to permit them to file a further amended complaint. On January 8, 2018 the Court denied the plaintiffs' motion to alter or amend the previous judgment. On January 29, 2018, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit from the Court's denial of the plaintiffs' motion to alter or amend the judgment. Global Eagle said "We have not accrued a reserve for this loss contingency at this time because we currently believe that a material loss relating to this matter is remote. We intend to vigorously defend ourselves against this claim." Global Eagle is a leading provider of satellite-based connectivity and media to fast-growing, global mobility markets across air, sea and land. The company's principal operations and decision-making functions are located in North America and Europe. The company is based in Los Angeles, California. GOLDEN ENTERTAINMENT: Employee Class Suits in Nevada Underway ------------------------------------------------------------- Golden Entertainment, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that one purported labor-related class action lawsuit in Nevada is in discovery phase and the parties in the second case has agreed to settle subject to court approval. The Company stated, "In February and April 2017, several former employees filed two separate purported class action lawsuits against us in the District Court of Clark County, Nevada, and on behalf of similarly situated individuals employed by us in the State of Nevada. The lawsuits allege that we violated certain Nevada labor laws including payment of an hourly wage below the statutory minimum wage without providing a qualified health insurance plan and an associated failure to pay proper overtime compensation. The complaints seek, on behalf of the plaintiffs and members of the putative class, an unspecified amount of damages (including punitive damages), injunctive and equitable relief, and an award of attorneys' fees, interest and costs. In the second half of 2017, we agreed to settle the first of these two cases, subject to court approval. The second case is in the discovery phase." Golden Entertainment is a diversified group of gaming companies that focus on distributed gaming (including tavern gaming) and casino and resort operations. GOLDEN ENTERTAINMENT: Faces Suit over Transient Lodging Tax ----------------------------------------------------------- Golden Entertainment, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that it has not yet been served with the complaint related to the alleged violations of the federal Internet Tax Freedom Act. The Company states, "In February 2018, a prior guest of the Stratosphere filed a purported class action complaint against us in the United States District Court, District of Nevada, on behalf of similarly situated individuals and entities that paid the Clark County Combined Transient Lodging Tax ("Tax") on the portion of a resort fee that constitutes charges for Internet access, during the period of February 6, 2014 through the date the alleged conduct ceases. The lawsuit alleges that the Tax was charged in violation of the federal Internet Tax Freedom Act, which imposes a national moratorium on the taxation of Internet access by states and their political subdivisions, and seeks, on behalf of the plaintiff and the putative class, damages equal to the amount of the Tax collected on the Internet access component of the resort fee, injunctive relief, disgorgement, interest, fees and costs. "We have not yet been served with the complaint. In the event a complaint is served on us, we anticipate being accorded a stay to respond in connection with an agreement that other hotel casino operators have entered into with regard to case consolidation while the federal court reviews subject matter jurisdiction. This case is at an early stage in the proceedings, and we are therefore unable to make a reasonable estimate of the probable loss or range of losses, if any, that might arise from this matter." Golden Entertainment is a diversified group of gaming companies that focus on distributed gaming (including tavern gaming) and casino and resort operations. GREAT SOUTH TIMBER: "Roberts" Suit Seeks Overtime Pay under FLSA ---------------------------------------------------------------- TRAVIS ROBERTS, on behalf of himself and others similarly situated, the Plaintiff, v. GREAT SOUTH TIMBER AND LUMBER, LLC, the Defendant, Case No. 3:18-cv-00644-MMH-MCR (M.D. Fla., May 14, 2018), seeks to recover compensatory and liquidated damages, attorney fees, and other relief from Defendant for violations of the Fair Labor Standards Act and for wrongful termination in violation of the Family and Medical Leave Act. According to the complaint, the Plaintiff routinely worked more than 40 hours per week in a non-exempt job but was not paid at a rate of one and one-half times his hourly rate when he worked overtime. The similarly situated employees are also believed to have performed overtime work for which they were compensated at a straight time rate of pay. Great South Timber engages in manufacturing and distribution of lumber products. The company was incorporated in 1984 as Great South Timber, Inc. and changed its name to Great South Timber & Lumber, Inc. in 2002.[BN] The Plaintiff is represented by: Matthew W. Birk, Esq. 309 NE 1ST Street Gainesville, FL 32601 Telephone: (352) 244 2069 Facsimile: (352) 372 3464 E-mail: mbirk@gainsvilleemploymentlaw.com GREATS BRAND: Youn Sues over Telemarketing Text Messages -------------------------------------------------------- ANDREW YOUN, individually and on behalf of all others similarly situated, the Plaintiff, v. GREATS BRAND INC, a Delaware Corporation, the Defendant, Case No. 1:18-cv-02898 (E.D.N.Y., May 15, 2018), seeks statutory damages and any other available legal or equitable remedies under the Telephone Consumer Protection Act. According to the complaint, the Defendant provides online shopping specializing in shoes. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. On February 21 and 28, and March 28, 2018, the Defendant sent the following telemarketing text messages to Plaintiff's cellular telephone number ending in 7662. Defendant's text messages were transmitted to Plaintiff's cellular telephone, and within the time frame relevant to this action. Defendant's text messages constitute telemarketing because they encouraged the future purchase or investment in property, goods, or services, i.e., Defendant's shoes for sale. The short link (https://goo.gl/HXfdw.com) contained in the text messages is a link to Defendant's website, www.greats.com, where Defendant further promotes its business. The Plaintiff received the subject texts within this judicial district and, therefore, Defendant's violation of the TCPA occurred within this district. Defendant caused other text messages to be sent to individuals residing within this judicial district. At no point in time did Plaintiff provide Defendant with his express written consent to be contacted using an ATDS. The Plaintiff is the subscriber and sole user of the 7662 Number and is financially responsible for phone service to the 7662 Number.[BN] Counsel for Plaintiff and the Class: Ari Marcus, Esq.. MARCUS & ZELMAN, LLC. 701 Cookman Avenue, Suite 300 Ashbury, NJ 07712 Telephone: (732) 695 3282 E-mail: ari@marcuszelman.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: (305) 479 2299 E-mail: Ashamis@shamisgentile.com - and - Jeffrey M. Ostrow, Esq. Scott A. Edelsberg, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 449 4602 E-mail: Ostrow@kolawyers.com edelsberg@kolawyers.com GREEN DOT: Still Defends Class Suits over Service Disruptions ------------------------------------------------------------- Green Dot Corporation said that it has recorded an estimated accrual of approximately US$2.3 million, which represents the Company's portion of the estimated total settlement amount related to the lawsuits over limited disruptions in service, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "During the quarter ended June 30, 2016, we continued our planned conversion of customer files from our legacy third-party card processor to our current third-party card processor. As part of the conversion process, a small percentage of our active account holders experienced limited disruptions in service. As a result of this limited disruption in service, two putative class action complaints were filed during the second quarter of 2016. Any settlement amount paid to resolve the consolidated class actions will be borne equally between us and our third-party card processor. We have recorded an estimated accrual of approximately US$2.3 million, which represents our portion of the estimated total settlement amount, all of which our insurance carrier has agreed to reimburse us. This amount is recorded in other accrued liabilities and accounts receivable on our consolidated balance sheet as of March 31, 2018." Green Dot Corporation is a provider of reloadable prepaid debit cards and cash reload processing services in the United States. It is also a leader in mobile technology and mobile banking with its GoBank mobile checking account. GROUPON INC: 4th Cir. Junks Appeal on "Keena" Suit Dismissal ------------------------------------------------------------ Judge Robert Bruce King of the U.S. Court of Appeals for the Fourth Circuit dismissed Keena's appeal on the dismissal with prejudice of the case captioned ERIN KEENA, for herself and all others similarly situated, Plaintiff-Appellant, v. GROUPON, INC., a Delaware Corporation, Defendant-Appellee, Case No. 16-1873 (4th Cir.). Keena desires relief from a district court ruling in the Western District of North Carolina that requires her to arbitrate claims alleged in her complaint against Groupon. After the court ordered the parties to arbitrate, Keena moved to amend the arbitration order to include, inter alia, a provision dismissing her complaint with prejudice. The court acceded to that aspect of Keena's motion and dismissed with prejudice. Keena has appealed from the dismissal. In February 2015, Keena purchased a voucher for massage services from Groupon, a web-based entity that partners with other businesses to provide discount products and services to customers. In making her purchase, Keena entered into a form agreement that required her to resolve any disputes with Groupon through arbitration. When Keena was unable to redeem her Groupon voucher, she sought reimbursement and received an electronic certificate called "Groupon Bucks." The certificate, however, could only be used to purchase goods and services on Groupon's website. Nearly a year later, Keena -- individually and on behalf of a putative class of similarly-situated Plaintiffs -- filed the civil action against Groupon. The complaint alleged claims against Groupon on the basis of its reimbursement policy. Groupon responded by invoking the arbitration clause in its agreement with Keena and moved to enforce that clause. The district court agreed with Groupon and ordered the parties to arbitrate. It did not reach or address any class certification issues, but instead stayed all further proceedings in Keena's lawsuit pending arbitration. A few weeks later, in July 2016, Keena moved to amend the Arbitration Order, requesting the district court to dismiss her complaint with prejudice. In making her dismissal request, Keena advised the court that she would not pursue arbitration because the costs of that process outweighed the potential recovery. In the alternative, she sought the court's approval for an interlocutory appeal of the Arbitration Order. In disposing of Keena's motion to amend the Arbitration Order, the district court first declined to certify an interlocutory appeal under 28 U.S.C. Section 1292(b). The court agreed to amend the Arbitration Order, however, and granted Keena's request that her complaint be dismissed with prejudice. The court explained that continuing to stay the proceedings serves no useful purpose, in view of Keena's decision not to engage in arbitration. Having failed to garner the district court's approval for an interlocutory appeal, but having secured the dismissal of her complaint with prejudice, Keena noted an appeal from the Dismissal Order. She contends that the Court possess final order jurisdiction pursuant to 28 U.S.C. Section 1291. Judge King finds that like the plaintiff in Microsoft Corp. v. Baker, Keena secured a voluntary dismissal of her complaint in order to seek an immediate appeal from an otherwise interlocutory order. Justice Ginsburg's opinion in Microsoft rejected the nearly identical effort made in that case, characterizing Baker's appeal to the court of appeals as arising from a "voluntary- dismissal tactic" that contravenes the final-judgment rule embodied in 28 U.S.C. Section 1291. Under the final-judgment rule, the whole case and every matter in controversy in it must be decided in a single appeal. Justice Ginsburg's rationale is instructive in this case, and provides an apt description of what occurred in Keena's effort to secure an immediate appeal. The Judge next finds that Keena's voluntary-dismissal tactic also fails to account for the longstanding principle that a party is not entitled to appeal from a consensual dismissal of her claims. Put succinctly, in seeking to create final order Section 1291 jurisdiction, Keena has, like the plaintiff in Microsoft, pursued her own version of the voluntary-dismissal tactic that the Supreme Court soundly repudiated. The Court's approval of such a tactic -- by agreeing that final order Section 1291 jurisdiction is present here -- would thus contravene Microsoft and the long- settled principle that, in the wise words of former Chief Judge John J. Parker that no appeal lies from a judgment of voluntary nonsuit. Finally, the Judge finds that Keena's effort to appeal in the case is readily distinguishable from Green Tree Fin. Corp.- Alabama v. Randolph. First, the district court's Arbitration Order directed Keena and Groupon to arbitrate and stayed the proceedings. Second, Keena's complaint was dismissed with prejudice after she voluntarily sought the dismissal. In the Green Tree case, on the other hand, the defendant Green Tree -- not the plaintiff Randolph -- had sought the dismissal. The Green Tree decision thus does not present or address the propriety of the voluntary-dismissal tactic employed by Keena and that the Supreme Court squarely rejected in Microsoft. In these circumstances, Judge King holds that the Dismissal Order secured by Keena is not an appealable final decision under 28 U.S.C. Section 1291. Appellate jurisdiction is therefore lacking and Keena's appeal must be dismissed. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/46HDeM from Leagle.com. ARGUED: Daniel Chappell Flint, LAW OFFICES OF DANIEL C. FLINT, PC, Southfield, Michigan, for Appellant. Scott Thomas Schutte -- scott.schutte@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP, Chicago, Illinois, for Appellee. ON BRIEF: Jonathan A. Berry, Washington, D.C., Gregory T. Fouts - - gregory.fouts@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP, Chicago, Illinois, for Appellee. HC2 HOLDINGS: Oct. 2019 Trial Set in CGI Producer Litigation ------------------------------------------------------------ HC2 Holdings, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that while settlement negotiations remain ongoing in the CGI Producer Litigation, the Court has entered a scheduling order setting the case for trial during the week of October 15, 2019. On November 28, 2016, CGI, a subsidiary of the Company, Great American Financial Resource, Inc. ("GAFRI"), American Financial Group, Inc., and CIGNA Corporation were served with a putative class action complaint filed by John Fastrich and Universal Investment Services, Inc. in The United States District Court for the District of Nebraska alleging breach of contract, tortious interference with contract and unjust enrichment. The plaintiffs contend that they were agents of record under various CGI policies and that CGI allegedly instructed policyholders to switch to other CGI products and caused the plaintiffs to lose commissions, renewals, and overrides on policies that were replaced. The complaint also alleges breach of contract claims relating to allegedly unpaid commissions related to premium rate increases implemented on certain long-term care insurance policies. Finally, the complaint alleges breach of contract claims related to vesting of commissions. On August 21, 2017 the Court dismissed the plaintiffs' tortious interference with contract claim. CGI believes that the remaining allegations and claims set forth in the complaint are without merit and intends to vigorously defend against them. The case was set for voluntary mediation, which occurred on January 26, 2018. The Court stayed discovery pending the outcome of the mediation. On February 12, 2018, the parties notified the Court that mediation did not resolve the case and that the parties' discussions regarding a possible settlement of the action were still ongoing. The Court held a status conference on March 22, 2018, during which the parties informed the Court that settlement negotiations remain ongoing. Nonetheless, the Court entered a scheduling order setting the case for trial during the week of October 15, 2019. Meanwhile, settlement negotiations remain ongoing. Further, the Company and CGI are seeking defense costs and indemnification for plaintiffs' claims from GAFRI and Continental General Corporation ("CGC") under the terms of an Amended and Restated Stock Purchase Agreement ("SPA") related to the Company's acquisition of CGI in December 2015. GAFRI and CGC rejected CGI's demand for defense and indemnification and, on January 18, 2017, the Company and CGI filed a Complaint against GAFRI and CGC in the Superior Court of Delaware seeking a declaratory judgment to enforce their indemnification rights under the SPA. On February 23, 2017, GAFRI answered CGI's complaint, denying the allegations. The dispute is ongoing and CGI will continue to pursue its right to a defense and indemnity under the SPA. HC2 Holdings is a diversified holding company that seeks opportunities to acquire and grow businesses that can generate long-term sustainable free cash flow and attractive returns in order to maximize value for all stakeholders. The company is based in New York. HC2 HOLDINGS: Explores Potential Settlement in Schuff Litigation ---------------------------------------------------------------- HC2 Holdings, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the parties in the consolidated case captioned Schuff International, Inc. Stockholders Litigation have been exploring alternative frameworks for a potential settlement. On November 6, 2014, a putative stockholder class action complaint challenging the tender offer by which HC2 acquired approximately 721,000 of the outstanding common shares of DBMG was filed in the Court of Chancery of the State of Delaware, captioned Mark Jacobs v. Philip A. Falcone, Keith M. Hladek, Paul Voigt, Michael R. Hill, Rustin Roach, D. Ronald Yagoda, Phillip O. Elbert, HC2 Holdings, Inc., and Schuff International, Inc., Civil Action No. 10323 (the "Complaint"). On November 17, 2014, a second lawsuit was filed in the Court of Chancery of the State of Delaware, captioned Arlen Diercks v. Schuff International, Inc. Philip A. Falcone, Keith M. Hladek, Paul Voigt, Michael R. Hill, Rustin Roach, D. Ronald Yagoda, Phillip O. Elbert, HC2 Holdings, Inc., Civil Action No. 10359. On February 19, 2015, the court consolidated the actions (now designated as Schuff International, Inc. Stockholders Litigation) and appointed lead plaintiff and co-lead plaintiffs' counsel. The currently operative complaint was filed by Mark Jacobs. The pending complaint alleges, among other things, that in connection with the tender offer, the individual members of the DBMG Board of Directors and HC2, the controlling stockholder of DBMG, breached their fiduciary duties to members of the plaintiff class. Plaintiffs also assert that HC2 should be required to complete a short-form merger based upon plaintiffs' expectation that the Company would cash out the remaining public stockholders of DBMG following the completion of the tender offer. The complaint seeks rescission of the tender offer and/or compensatory damages, as well as attorney's fees and other relief. The defendants filed answers to the complaint on July 30, 2015. The Company said, "The parties have been exploring alternative frameworks for a potential settlement. There can be no assurance that a settlement will be finalized or that the Delaware Courts would approve such a settlement even if the parties enter into a settlement agreement. If a settlement cannot be reached, the Company believes it has meritorious defenses and intends to vigorously defend this matter." HC2 Holdings is a diversified holding company that seeks opportunities to acquire and grow businesses that can generate long-term sustainable free cash flow and attractive returns in order to maximize value for all stakeholders. The company is based in New York. HUGOTON ROYALTY: Final Allocation Plan in Royalty Suit Due July --------------------------------------------------------------- Plaintiffs in a royalty class action lawsuit against XTO Energy Inc. are scheduled to submit the final plan of allocation for Court approval by July 30, 2018, according to Hugoton Royalty Trust's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demand an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 26, 2012, which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. A non-binding mediation occurred September 1, 2016, but was unsuccessful. XTO Energy has advised the Trustee that in December 2017, it reached a tentative settlement with the plaintiffs for US$80 million and an additional US$750 thousand for costs to administer the settlement following final approval. XTO Energy has advised the Trustee that on March 27, 2018, the judge signed orders approving the settlement, including the plaintiffs' initial plan to allocate the net settlement fund among the wells covered by the Chieftain class. Prior to plaintiffs filing their initial plan of allocation, XTO Energy advised the Trustee that it believed the portion of the settlement that relates to the Trust could be as much as US$20 million. However, the portion of the settlement allocable to the Trust cannot be finally determined until after the judge approves the final plan of allocation, which the plaintiffs are scheduled to submit by July 30, 2018. XTO Energy has advised the Trustee that depending on the final plan of allocation, the portion of the settlement XTO Energy believes should be allocated to the Trust may exceed US$20 million. The Trustee has asked for additional information regarding the allocation of the settlement amount and has asked to be advised by XTO Energy as the matter progresses. XTO Energy has confirmed that they do not have additional information at this time, but will provide an update once it becomes available. Once additional information is made available, the Trustee intends to review any claimed reductions in payment to the Trust based on the facts and circumstances of the settlement. In light of a 2014 arbitration decision in which a three- arbitrator panel tribunal decided that the settlement in Fankhouser v. XTO Energy, Inc., including a new royalty calculation for future royalty payments, could not be charged to the Trust, to the extent that the claims in Chieftain are similar to those in Fankhouser the Trustee had informed XTO Energy that it would likely object to such claimed reductions. On May 2, 2018, the Trustee submitted a demand for arbitration styled Simmons Bank (successor to Southwest Bank and Bank of America, N.A.) vs. XTO Energy Inc. (the "Arbitration") through the American Arbitration Association seeking a declaratory judgment that the Chieftain settlement is not a production cost and that XTO Energy is prohibited from charging the settlement as a production cost under the conveyance or otherwise reducing the Trust's payments now or in the future as a result of the Chieftain litigation. In the Arbitration, the Trustee also made claims for disputed amounts on the computation of the Trust's net proceeds for 2014 through 2016 in excess of US$5 million. Due to the recent date of the filing of the demand for arbitration, XTO Energy has advised that it is currently reviewing the arbitration documents and will respond in due course. The Company said, "If US$20 million or more of the Chieftain settlement is required to be borne by the Trust, it would result in excess costs under the Oklahoma conveyance that, based on recent distribution levels under such conveyance, would likely result in no distributions under the Oklahoma conveyance for several years." Hugoton Royalty Trust is an express trust created under the laws of Texas pursuant to the Hugoton Royalty Trust Indenture entered into on December 1, 1998 between XTO Energy Inc. (formerly known as Cross Timbers Oil Company), as grantor, and NationsBank, N.A., as trustee. Southwest Bank is now the trustee of the Trust. IAC/INTERACTIVECORP: June 19 Oral Arguments in Securities Suit -------------------------------------------------------------- Oral argument on the defendants' motion to dismiss the second amended consolidated complaint in securities class action litigation against Match Group is scheduled for June 19, 2018, according to IAC/InterActiveCorp's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On February 26, 2016, a putative nationwide class action was filed in federal court in Texas against Match Group, five of its officers and directors, and twelve underwriters of Match Group's initial public offering in November 2015. The case was captioned David M. Stein v. Match Group, Inc. et al., No. 3:16-cv-549 (U.S. District Court, Northern District of Texas). The complaint alleged that Match Group's registration statement and prospectus issued in connection with its initial public offering were materially false and misleading given their failure to state that: (i) Match Group's Non-dating business would miss its revenue projection for the quarter ended December 31, 2015, and (ii) ARPU (Average Revenue per Subscriber) would decline substantially in the quarter ended December 31, 2015. The complaint asserted that these alleged failures to timely disclose material information caused Match Group's stock price to drop after the announcement of its earnings for the quarter ended December 31, 2015. The complaint pleaded claims under the Securities Act of 1933 for untrue statements of material fact in, or omissions of material facts from, the registration statement, the prospectus, and related communications in violation of Sections 11 and 12 and, as to the officer/director defendants only, control-person liability under Section 15 for Match Group's alleged violations. The complaint sought among other relief class certification and damages in an unspecified amount. On March 9, 2016, a virtually identical class action complaint was filed in the same court against the same defendants by a different named plaintiff. The case was captioned Stephany Kam- Wan Chan v. Match Group, Inc. et al., No. 3:16-cv-668 (U.S. District Court, Northern District of Texas). On April 25, 2016, Judge Boyle in the Chan case issued an order granting the parties' joint motion to transfer that case to Judge Lindsay, who was presiding over the earlier-filed Stein case. On April 27, 2016, various current or former Match Group shareholders and their respective law firms filed motions seeking appointment as lead plaintiff(s) and lead or liaison counsel for the putative class. On April 28, 2016, the Court issued orders: (i) consolidating the Chan case into the Stein case, (ii) approving the parties' stipulation to extend the defendants' time to respond to the complaint until after the Court has appointed a lead plaintiff and lead counsel for the putative class and has set a schedule for the plaintiff's filing of a consolidated complaint and the defendants' response to that pleading, and (iii) referring the various motions for appointment of lead plaintiff(s) and lead or liaison counsel for the putative class to a United States Magistrate Judge for determination. On June 9, 2016, the Magistrate Judge issued an order appointing two lead plaintiffs, two law firms as co-lead plaintiffs' counsel, and a third law firm as plaintiffs' liaison counsel. In accordance with this order, the consolidated case is now captioned Mary McCloskey et ano. v. Match Group, Inc. et al., No. 3:16-CV-549-L. On July 27, 2016, the parties submitted to the Court a joint status report proposing a schedule for the plaintiffs' filing of a consolidated amended complaint and the parties' briefing of the defendants' contemplated motion to dismiss the consolidated complaint. On August 17, 2016, the Court issued an order approving the parties' proposed schedule. On September 9, 2016, in accordance with the schedule, the plaintiffs filed an amended consolidated complaint. The amended pleading focused solely on allegedly misleading statements or omissions concerning the Match Group's Non-dating business. The defendants filed motions to dismiss the amended consolidated complaint on November 8, 2016. The plaintiffs filed oppositions to the motions on December 23, 2016, and the defendants filed replies to the oppositions on February 6, 2017. On September 27, 2017, the court issued an opinion and order: (i) denying, without prejudice to renewal, the defendants' motions and (ii) directing the plaintiffs to file a further amended pleading addressing the deficiencies in the amended consolidated complaint that were identified in the defendants' motions. On October 30, 2017, the plaintiffs filed a second amended consolidated complaint, which among other things, dropped their claim under Section 12 of the Securities Act of 1933. Pursuant to an agreed-upon briefing schedule approved by the court, the defendants filed motions to dismiss the second amended consolidated complaint on December 15, 2017, the plaintiffs filed an opposition to the motions on January 29, 2018, and the defendants filed replies to the opposition on February 20, 2018. On March 8, 2018, the court issued an order transferring the case from Judge Lindsay to newly appointed Judge Scholer. Oral argument on the defendants' motion to dismiss is scheduled for June 19, 2018. The Company said, "We and Match Group believe that the material allegations and claims in this lawsuit are without merit and intend to continue to defend vigorously against it." IAC is a media and Internet company comprised of widely known consumer brands, such as HomeAdvisor, Vimeo, Dotdash (formerly About.com), Dictionary.com, The Daily Beast, Investopedia, and Match Group's online dating portfolio, which includes Match, Tinder, PlentyOfFish and OkCupid. IAC/INTERACTIVECORP: Calif. High Court Reopens Tinder Suit ---------------------------------------------------------- The California Supreme Court has denied Tinder, Inc.'s petition for interlocutory review of the California Court of Appeal's reversal of the dismissed consumer class action challenging Tinder's age-tiered pricing, according to IAC/InterActiveCorp's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On May 28, 2015, a putative state-wide class action was filed against Tinder in state court in California. The case was captioned Allan Candelore v. Tinder, Inc., No. BC583162 (Superior Court of California, County of Los Angeles). The complaint principally alleged that Tinder violated California's Unruh Civil Rights Act by offering and charging users age 30 and over a higher price than younger users for subscriptions to its premium Tinder Plus service. The complaint sought certification of a class of California Tinder Plus subscribers age 30 and over and damages in an unspecified amount. On September 21, 2015, Tinder filed a demurrer seeking dismissal of the complaint. On October 26, 2015, the court issued an opinion sustaining Tinder's demurrer to the complaint without leave to amend, ruling that the age-based pricing differential for Tinder Plus subscriptions did not violate California law in essence because offering a discount to users under age 30 was neither invidious nor unreasonable in light of that age group's generally more limited financial means. On December 29, 2015, in accordance with its ruling, the court entered judgment dismissing the action. On February 1, 2016, the plaintiff filed a notice of appeal from the judgment, and the parties thereafter briefed the appeal. On January 29, 2018, the California Court of Appeal (Second Appellate District, Division Three) issued an opinion reversing the judgment of dismissal, ruling that the lower court had erred in sustaining Tinder's demurrer because the complaint, as pleaded, stated a cognizable claim for violation of the Unruh Act. The Company said, "Because we believe that the appellate court's reasoning was flawed as a matter of law and runs afoul of binding California precedent, on March 12, 2018, Tinder filed a petition with the California Supreme Court seeking interlocutory review of the Court of Appeal's decision. On May 9, 2018, the California Supreme Court denied the petition. The case will now be returned to the trial court for further proceedings. We and Match Group believe that the allegations in this lawsuit are without merit and will continue to defend vigorously against it." IAC is a media and Internet company comprised of widely known consumer brands, such as HomeAdvisor, Vimeo, Dotdash (formerly About.com), Dictionary.com, The Daily Beast, Investopedia, and Match Group's online dating portfolio, which includes Match, Tinder, PlentyOfFish and OkCupid. ICONIX BRAND: Motion to Dismiss N.Y. Class Lawsuit Still Pending ---------------------------------------------------------------- Iconix Brand Group, Inc. is still awaiting the Court's ruling on its motion to dismiss the second consolidated amended complaint, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. Three securities class actions have been consolidated in the United States District Court for the Southern District of New York, under the caption In re Iconix Brand Group, Inc., et al., Docket No. 1:15-cv-4860, against the Company and certain former officers and one current officer (the "Class Action"). The plaintiffs in the Class Action purport to represent a class of purchasers of the Company's securities from February 22, 2012 to November 5, 2015, inclusive, and claim that the Company and individual defendants violated sections 10(b) and 20(a) of the Exchange Act, by making allegedly false and misleading statements regarding certain aspects of the Company's business operations and prospects. On October 25, 2017, the Court granted the motion to dismiss the consolidated amended complaint filed by the Company and the individual defendants with leave to amend. On November 14, 2017, the plaintiffs filed a second consolidated amended complaint. On February 2, 2018, the defendants moved to dismiss the second consolidated amended complaint. The Company and the individual defendants intend to vigorously defend against the claims. At this time, the Company is unable to estimate the ultimate outcome of these matters. ICU MEDICAL: Hospira Units Defend Lawsuit on IV Saline Solution --------------------------------------------------------------- ICU Medical, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended: March 31, 2018, that Hospira, Inc. and Hospira Worldwide, Inc. remain defendants in a purported class action in Illinois regarding intravenous saline solution. On February 3, 2017, the Company acquired 100% interest in Pfizer Inc.'s Hospira Infusion Systems ("HIS") business for total cash consideration of approximately US$255.8 million (net of estimated working capital adjustments paid at closing), which was financed with existing cash balances and a US$75 million three-year interest-only seller note. Beginning in November 2016, purported class actions were filed in the U.S. District Court for the Northern District of Illinois against Pfizer, Inc. subsidiaries, Hospira, Inc., Hospira Worldwide, Inc. and certain other defendants relating to the intravenous saline solutions part of the HIS business. Plaintiffs seek to represent classes consisting of all persons and entities in the U.S. who directly purchased intravenous saline solution sold by any of the defendants from January 1, 2013 until the time the defendants' allegedly unlawful conduct ceases. Plaintiffs allege that the defendants' conduct restricts output and artificially fixes, raises, maintains and/or stabilizes the prices of intravenous saline solution sold throughout the U.S. in violation of federal antitrust laws. Plaintiffs seek treble damages (for themselves and on behalf of the putative classes) and an injunction against defendants for alleged price overcharges for intravenous saline solution in the U.S. since January 1, 2013. The Company said, "This litigation is the subject of a claim for indemnification against us by Pfizer and a cross-claim for indemnification against Pfizer by us under the HIS stock and asset purchase agreement." ICU Medical, Inc. develops, manufactures, and sells medical devices used in infusion therapy, critical care, and oncology applications worldwide. It offers infusion therapy products comprising a tube running from a bottle or plastic bag containing a solution to a catheter inserted in a patient's vein for use in hospitals and ambulatory clinics. The Company sells its products to medical product manufacturers, distributors, and end-users. ICU Medical, Inc. was founded in 1984 and is headquartered in San Clemente, California. ILLINOIS: Court Enters Case Management Orders in "Coleman" Suit --------------------------------------------------------------- In the case, JEFFREY COLEMAN, No. 13853-028, RANDALL A. MILLER, QUINCY O. EDWARDS, JOSEPH K. RANDER, JAMAR JONES, and ANDREW DUNK, Plaintiffs, v. U.S. MARSHAL SERVICE, and RANDY COBB, Defendants, Case No. 17-cv-1282-JPG (S.D. Ill.), Judge J. Phil Gilbert of the U.S. District Court for the Southern District of Illinois Plaintiff Coleman filed the instant action naming himself and five other individuals as he Plaintiffs, all of whom are incarcerated at White County Jail. However, only Coleman signed the Complaint. Additionally, Coleman is the only Plaintiff to file an IFP Motion. The Complaint alleges that the Defendants have violated the Plaintiffs' rights by subjecting them to unconstitutional conditions of confinement and by providing an unhealthy diet. The matter is before the Court for case management. Judge Gilbert finds that it appears that Coleman drafted the Complaint, as he is the only individual to have signed the pleading and to have submitted an IFP Motion. Therefore, he will designate him as the "Lead" Plaintiff in the case. The non-lead Plaintiffs (Miller, Edwards, Rander, Jones, and Dunk) will be given an opportunity to withdraw from the litigation before the case progresses further. In addition, if the Plaintiffs desire to continue the litigation as a group, any proposed amended complaint, motion or other document filed on behalf of the multiple Plaintiffs must be signed by each of the Plaintiffs. As long as they appear without counsel in the action, each Plaintiff must sign all documents for himself. The Judge warned them that future group motions or pleadings that do not comply with this requirement will be stricken pursuant to Rule 11(a). Judge Gilbert ordered that each of the non-lead Plaintiff (Miller, Edwards, Rander, Jones, and Dunk) will advise the Court in writing on or before Jan. 15, 2018, whether he wishes to continue as a Plaintiff in the group action. If, by that deadline, any of the non-lead Plaintiff advises the Court that he does not wish to participate in the action, he will be dismissed from the lawsuit and will not be charged a filing fee for the action. Each of the non-lead Plaintiff who chooses to continue as a Plaintiff in the group action must submit a copy of the Complaint bearing his signature, on or before the Jan. 15, 2018, deadline. To enable them to comply with the Order, the Judge directed the Clerk to return a copy of the Complaint to each of the non-lead Plaintiff. If any of the non-lead Plaintiff wants to pursue his claims individually in a separate lawsuit, he will so advise the Court in writing and he must submit a signed Complaint by the Jan. 15, 2018, deadline. His claims will then be severed into a new action where a filing fee will be assessed and his motion to proceed IFP (if one has been filed) will be considered. Each of the non-lead Plaintiff who chooses to continue as a Plaintiff either in the action or in a severed individual case, is ordered to pay his filing fee of $400 or file a properly completed motion for leave to proceed IFP if he has not already done so, on or before Jan. 15, 2018. Each Plaintiff must have the Trust Fund Officer at his facility complete the attached certification and provide a copy of his trust fund account statement (or institutional equivalent) for the period 5/27/2017 to 11/27/2017. This information should be mailed to the Clerk of Court at the following address: United States District Court -- Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201. Any Plaintiff who simply does not respond to this Order on or before Jan. 15, 2018, will be obligated to pay the full filing fee and will also be dismissed from this action for want of prosecution and/or for failure to comply with a court order under Federal Rule of Civil Procedure 41(b). The Clerk is directed to send a copy of the order to each of the named Plaintiffs, and to enclose a blank form IFP motion and trust fund account certification form for each of the non-lead Plaintiff. Judge Gilbert advised the Plaintiffs that the Complaint is currently awaiting preliminary review by the Court pursuant to 28 U.S.C. Section 1915A, and it has not yet been served on the Defendants. Further action by the non-lead Plaintiffs is required before the Court can complete its preliminary review of the matter under Section 1915A. As soon as this review is completed, a copy of the Court's order will be forwarded to each Plaintiff who remains in the action. He further advised the Plaintiffs that each of them is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in his address; the Court will not independently investigate a Plaintiff's whereabouts. This will be done in writing and not later than seven days after a transfer or other change in address occurs. Failure to comply with the order will cause a delay in the transmission of court documents and may result in dismissal of the action for want of prosecution. A full-text copy of the Court's March 27, 2018 Memorandum and Order is available at https://is.gd/m1Ha8C from Leagle.com. IMPAC MORTGAGE: Trial in "Marentes" Class Suit Set for June 2018 ---------------------------------------------------------------- Impac Mortgage Holdings, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that trial is currently scheduled for June 2018 in the case captioned Marentes v. Impac Mortgage Holdings, Inc. On April 30, 2012, a purported class action was filed entitled Marentes v. Impac Mortgage Holdings, Inc., alleging that certain loan modification activities of the Company constitute an unfair business practice, false advertising and marketing, and that the fees charged are improper. The complaint seeks unspecified damages, restitution, injunctive relief, attorney's fees and prejudgment interest. On August 22, 2012, the plaintiff filed an amended complaint adding Impac Funding Corporation as a defendant and on October 2, 2012, the plaintiff dismissed Impac Mortgage Holdings, Inc., without prejudice. No further updates were provided in the Company's SEC report. Impac Mortgage Holdings, Inc., is a Maryland corporation incorporated in August 1995. The Company is an established nationwide independent residential mortgage lender. The Company originates, sells and services residential mortgage loans. IMPAX LABORATORIES: Solodyn End-Payor Pact Gets Preliminary OK -------------------------------------------------------------- In the case, Solodyn(R) Antitrust Class Actions, the settlement with the end payor plaintiff class was preliminarily approved by the Court on April 5, 2018, according to Impax Laboratories, LLC's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. From July 2013 to January 2016, 18 complaints were filed as class actions on behalf of direct and indirect purchasers, as well as by certain direct purchasers, against manufacturers of the brand drug Solodyn(R) and its generic equivalents, including the Company. On July 22, 2013, Plaintiff United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 23, 2013, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 1, 2013, Plaintiff International Union of Operating Engineers Local 132 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On August 29, 2013, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on August 30, 2013, re-filed the same complaint in the United States Court for the Eastern District of Pennsylvania, on behalf of itself and others similarly situated. On August 9, 2013, Plaintiff Local 274 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 12, 2013, Plaintiff Sheet Metal Workers Local No. 25 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 27, 2013, Plaintiff Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 29, 2013, Plaintiff Heather Morgan, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 30, 2013, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 9, 2013, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On September 24, 2013, Plaintiff City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Arizona on behalf of itself and others similarly situated. On October 2, 2013, Plaintiff International Union of Operating Engineers Stationary Engineers Local 39 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On October 7, 2013, Painters District Council No. 30 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On October 25, 2013, Plaintiff Man-U Service Contract Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On March 13, 2014, Plaintiff Allied Services Division Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On March 19, 2014, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On February 25, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the District of Massachusetts for coordinated pretrial proceedings, as In Re Solodyn (Minocycline Hydrochloride) Antitrust Litigation. On March 26, 2015, Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On April 8, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants. On April 16, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On May 1, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants. On January 25, 2016, CVS Pharmacy, Inc., a direct purchaser, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On February 11, 2016, the Judicial Panel on Multi-District Litigation ordered the action to be transferred to the District of Massachusetts to be coordinated or consolidated with the coordinated proceedings. The consolidated amended complaints allege that Medicis engaged in anticompetitive schemes by, among other things, filing frivolous patent litigation lawsuits, submitting frivolous Citizen Petitions, and entering into anticompetitive settlement agreements with several generic manufacturers, including the Company, to delay generic competition of Solodyn(R) and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. On August 14, 2015, the District Court granted in part and denied in part defendants' motion to dismiss the consolidated amended complaints. On October 16, 2017, the Court certified the Direct Purchaser Plaintiffs' and End-Payor Plaintiffs' classes. On October 30, 2017, the Company filed a petition for interlocutor appeal challenging the Court's certification of the End-Payor Plaintiffs' class and motions for Summary Judgment were filed on November 1, 2017. On January 25, 2018, the Court denied Plaintiffs' and Impax's summary judgment motions. Trial began on March 12, 2018. During March 2018, the Company separately settled all claims with the direct purchaser plaintiff class, retailer plaintiffs and the end payor plaintiff class for a total settlement amount of US$84.5 million. The settlements with the class plaintiffs are subject to court approval. The settlement with the direct purchaser plaintiff class was preliminarily approved by the Court on March 12, 2018, and a fairness hearing is scheduled for July 11, 2018. The settlement with the end payor plaintiff class was preliminarily approved by the Court on April 5, 2018. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Opana ER(R) Antitrust Class Actions Ongoing --------------------------------------------------------------- Impax Laboratories, LLC disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that discovery is ongoing in Opana ER(R) Antitrust Class Actions and that no trial date has been scheduled. From June 2014 to April 2015, 14 complaints were filed as class actions on behalf of direct and end-payor (indirect) purchasers, as well as by certain direct purchasers, against the manufacturer of the brand drug Opana ER(R) and the Company. On June 4, 2014, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 4, 2014, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 6, 2014, Plaintiff Value Drug Company, a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On June 26, 2014, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on July 16, 2014, re-filed the same complaint in the United States District Court for the Northern District of Illinois, on behalf of itself and others similarly situated. On June 19, 2014, Plaintiff Wisconsin Masons' Health Care Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On July 17, 2014, Plaintiff Massachusetts Bricklayers, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 11, 2014, Plaintiff Pennsylvania Employees Benefit Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On September 19, 2014, Plaintiff Meijer Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On October 3, 2014, Plaintiff International Union of Operating Engineers, Local 138 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On November 17, 2014, Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana, an indirect purchaser, filed a class action complaint in the United States District Court for the Middle District of Louisiana on behalf of itself and others similarly situated. On December 12, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the Northern District of Illinois for coordinated pretrial proceedings, as In Re Opana ER Antitrust Litigation. On December 19, 2014, Plaintiff Kim Mahaffay, an indirect purchaser, filed a class action complaint in the Superior Court of the State of California, Alameda County, on behalf of herself and others similarly situated. On January 27, 2015, the Defendants removed the action to the United States District Court for the Northern District of California. On January 12, 2015, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On March 26, 2015 Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois. On April 23, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois. In each case, the complaints allege that Endo engaged in an anticompetitive scheme by, among other things, entering into an anticompetitive settlement agreement with the Company to delay generic competition of Opana ER(R) and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. Consolidated amended complaints were filed on May 4, 2015 by direct purchaser plaintiffs and end- payor (indirect) purchaser plaintiffs. On July 3, 2015, defendants filed motions to dismiss the consolidated amended complaints, as well as the complaints of the "Opt-Out Plaintiffs" (Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, Rite Aid Corporation and Rite Aid Hdqtrs. Corp.). On February 1, 2016, CVS Pharmacy, Inc. filed a complaint in the United States District Court for the Northern District of Illinois. The parties agreed that CVS Pharmacy, Inc. would be bound by the Court's ruling on the defendants' motion to dismiss the Opt-Out Plaintiffs' complaints. On February 10, 2016, the Court granted in part and denied in part defendants' motion to dismiss the end-payor purchaser plaintiffs' consolidated amended complaint, and denied defendants' motion to dismiss the direct purchaser plaintiffs' consolidated amended complaint. The end-payor purchaser plaintiffs have filed a second consolidated amended complaint and the Company has moved to dismiss certain state law claims. On February 25, 2016, the Court granted defendants' motion to dismiss the Opt-Out Plaintiffs' complaints, with leave to amend. The Opt-Out Plaintiffs and CVS Pharmacy, Inc. have filed amended complaints and the Company has filed its answer. Discovery is ongoing. No trial date has been scheduled. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Still Defends Generic Drug Pricing Suit ----------------------------------------------------------- Impax Laboratories, LLC continues to defend itself in the case captioned In re Generic Pharmaceuticals Pricing Antitrust Litigation, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. From March 2016 to April 2017, 22 complaints were filed as class actions on behalf of direct and indirect purchasers against manufacturers of generic digoxin and doxycycline and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products. From January 2017 to April 2017, three complaints were filed on behalf of indirect purchasers against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products. On March 2, 2016, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. The plaintiff filed an amended complaint on June 9, 2016. On March 25, 2016, Plaintiff Tulsa Firefighters Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On March 25, 2016, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 4, 2016, Plaintiff Pipe Trade Services MN, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 25, 2016, Plaintiff Edward Carpinelli, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 27, 2016, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 2, 2016, Plaintiff Nina Diamond, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 5, 2016, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 6, 2016, Plaintiff Minnesota Laborers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 12, 2016, Plaintiff The City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Rhode Island on behalf of itself and others similarly situated. On May 18, 2016, Plaintiff KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 19, 2016, Plaintiff Philadelphia Federation of Teachers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 8, 2016, Plaintiff United Food & Commercial Workers and Employers Arizona Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 17, 2016, Plaintiff Ottis McCrary, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 20, 2016, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 27, 2016, Plaintiff CÇsar Castillo Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 29, 2016, Plaintiff Plumbers & Pipefitters Local 33 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 1, 2016, Plaintiff Plumbers & Pipefitters Local 178 Health and Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 15, 2016, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 7, 2016, Plaintiff United Here Health, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 20, 2016, Plaintiff Valerie Velardi, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On January 13, 2017, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug. On April 17, 2017, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug. On April 25, 2017, Plaintiff Louisiana Health Service Indemnity Company, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug. On May 19, 2016, several indirect purchaser plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation to transfer and consolidate the actions in the United States District Court for the Eastern District of Pennsylvania. The Judicial Panel ordered the actions consolidated in the Eastern District of Pennsylvania and ordered that the actions be renamed "In re Generic Digoxin and Doxycycline Antitrust Litigation." On January 27, 2017, plaintiffs filed two consolidated class action complaints. With respect to doxycycline, the plaintiffs dropped their allegations against the Company. On March 28, 2017, the Company, separately and along with other defendants, filed motions to dismiss the digoxin class action complaint. On April 6, 2017, the Judicial Panel on Multidistrict Litigation ordered the consolidation of all civil actions involving allegations of antitrust conspiracies in the generic pharmaceutical industry regarding 18 generic drugs to the Eastern District of Pennsylvania. The consolidated actions have been renamed In re Generic Pharmaceuticals Pricing Antitrust Litigation. On October 6, 2017, the Company filed a motion to dismiss the digoxin complaint. Briefing on the motion to dismiss is complete and a decision is pending. On February 9, 2018, the Court issued an order denying the discovery stay and allowing certain fact discovery to proceed. On January 19, 2018, Plaintiffs The Kroger Co., Albertsons Companies, LLC, and H.E. Butt Grocery Company L.P., opt-outs, filed a complaint in the United States District Court for the Eastern District of Pennsylvania against 35 companies, including Impax, alleging a conspiracy to fix, maintain and/or stabilize prices of 30 drugs and specifically digoxin and lidocaine/prilocaine with respect to Impax. No schedule has been set. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Time to Appeal AWP Case Dismissal Has Lapsed ---------------------------------------------------------------- Impax Laboratories, LLC disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the time period to file an appeal from the dismissed lawsuit related to the Average Wholesale Price of certain generic drugs has lapsed. On December 30, 2015, Plumbers' Local Union No. 690 Health Plan and others similarly situated filed a class action against several generic drug manufacturers, including the Company, in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, alleging that the Company and others violated the law, including the Pennsylvania Unfair Trade Practices and Consumer Protection law, by inflating the Average Wholesale Price ("AWP") of certain generic drugs. The case has since been removed to federal court in the United States District Court for the Eastern District of Pennsylvania. By virtue of an amended complaint filed on March 29, 2016, the suit has been amended to comprise a nationwide class of third party payors that allegedly reimbursed or purchased certain generic drugs based on AWP and to assert causes of action under the laws of other states in addition to Pennsylvania. On May 17, 2016, this case was stayed. On January 18, 2017, the Company, along with the other defendants, filed a joint motion to dismiss the complaint. On September 15, 2017, the Court dismissed the complaint with prejudice. The time period to file an appeal has lapsed. On February 5, 2016, Delaware Valley Health Care Coalition filed a lawsuit based on substantially similar allegations in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division that seeks declaratory judgment. On May 20, 2016, this case was stayed pending resolution of the federal court action. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Still Defends Medicine To Go's TCPA Lawsuit --------------------------------------------------------------- Impax Laboratories, LLC remains a defendant in a class action suit over alleged breaches of the Telephone Consumer Protection Act, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On February 14, 2017, Plaintiff Medicine To Go Pharmacies, Inc. filed a class action complaint in the United States District Court for the District of New Jersey on behalf of itself and others similarly situated against the Company alleging violation of the Telephone Consumer Protection Act. On April 17, 2017, the Company filed a motion to dismiss, transfer, or stay this case in light of the first-filed case by Family Medicine Pharmacy LLC in the U.S. District Court for the Southern District of Alabama. This case was transferred to the Southern District of Alabama. On September 15, 2017, the Court stayed this matter pending the final approval of the class settlement in the Family Medicine Pharmacy case. On March 6, 2018, the Court in the Family Medicine Pharmacy case issued an order with final approval of the proposed class settlement. No further updates were provided in the Company's SEC report. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Still Faces Securities Class Action in N.Y. --------------------------------------------------------------- Impax Laboratories, LLC still defends itself against the securities class action filed by lead plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On April 17, 2017, Lead Plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund filed an amended class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated against the Company alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The Company filed its motion to dismiss the amended complaint on June 1, 2017 and briefing has been completed. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Class Suits on Amneal Combination Dismissed --------------------------------------------------------------- After the Court-approved voluntary dismissal of the securities class actions related to Impax Laboratories, LLC's business combination with Amneal Pharmaceuticals, LLC, the plaintiffs has until June 1, 2018 to file any petition and supporting papers for an award of attorneys' fees and expenses, according to the Form 10-Q filing of Impax Laboratories with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On December 12, 2017 and December 14, 2017, Plaintiffs Susan Vana and David Stone, respectively, filed class action complaints in the United States District Court for the Northern District of California on behalf of themselves and others similarly situated against the Company alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 generally alleging that the Registration Statement on Form S-4 related to the proposed business combination with Amneal Pharmaceuticals, LLC ("Amneal") contains false and misleading statements and/or omissions concerning the financial projections of the Company, Amneal, and New Amneal; Morgan Stanley & Co. LLC's valuation analyses and Fairness Opinions relating to the Company and Amneal; potential conflicts of interest associated with one of the Company's financial advisors and the proposed business combination with Amneal; and background information of the proposed business combination, including confidentiality agreements entered into by the Company in connection with the Combination. On April 4, 2018, plaintiffs filed a Stipulation and Proposed Order voluntarily dismissing the actions and on April 5, 2018, the court issued an order to dismiss the actions. By no later than June 1, 2018, plaintiffs shall file any petition and supporting papers for an award of attorneys' fees and expenses. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Discovery Ongoing in Calif. Wage & Hour Suit ---------------------------------------------------------------- Impax Laboratories, LLC disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that discovery is ongoing in the California wage and hour class action filed by Emielou Williams. On August 3, 2017, Plaintiff Emielou Williams filed a class action complaint in the Superior Court for the State of California in the County of Alameda on behalf of herself and others similarly situated against the Company alleging violation of California Business and Professions Code section 17200 by violating various California wage and hour laws. On October 10, 2017, the Company filed a Demurrer and Motion to Strike Class Allegations. On December 12, 2017, the Court overruled Impax's Demurrer to Plaintiff's individual claims, however, it struck all of Plaintiff's class allegations. On March 13, 2018, Plaintiff filed her First Amended Complaint once again including the same class allegations. The Company filed a Demurrer and Motion to Strike Class Allegations on April 12, 2018 and hearing is scheduled for May 25, 2018. Discovery is ongoing. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. IMPAX LABORATORIES: Faces American Resources Suit over Opioids -------------------------------------------------------------- Impax Laboratories, LLC is facing class action complaint filed by American Resources Insurance Company, Inc. related to the sale and distribution of opioids, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. On March 28, 2018, Plaintiff American Resources Insurance Company, Inc. filed a class action complaint in the United States District Court for the Southern District of Alabama on behalf of itself and others similarly situated against the Company and several other drug manufacturers and distributors alleging violations of the RICO statute, negligence, fraud, unjust enrichment, and subrogation with respect to the sale and distribution of opioids. No schedule has been set. Impax Laboratories, LLC, formerly known as Impax Laboratories, Inc., is a specialty pharmaceutical company that focuses on developing, manufacturing, marketing and distributing generic and branded pharmaceutical products. INSYS THERAPEUTICS: Faces Putative Class Suit on Opioid Epidemic ---------------------------------------------------------------- Insys Therapeutics, Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 31, 2018, that it has been named, along with various other opioid manufacturers and distributors, in putative class action complaints that seek to assert claims allegedly related to the national opioid epidemic on behalf of purchasers of health insurance between 1996 and the present in the states of California, Illinois, Massachusetts, New Jersey, and New York. No further updates were provided in the Company's SEC report. Insys is a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products. INSYS THERAPEUTICS: Still Defends "Di Donato" Class Action ---------------------------------------------------------- Insys Therapeutics, Inc. continues to defend itself in a purported class action initially filed by Richard Di Donato, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "On or about February 2, 2016, a complaint (captioned Richard Di Donato v. Insys Therapeutics, Inc., et al., Case 2:16-cv-00302-NVW) was filed in the United States District Court for the District of Arizona against us and certain of our current and former officers. The complaint was brought as a purported class action on behalf of purchasers of our common stock between March 3, 2015 and January 25, 2016. In general, the plaintiffs allege that the defendants violated the anti-fraud provisions of the federal securities laws by making materially false and misleading statements regarding our business, operations and compliance with laws during the class period, thereby artificially inflating the price of our common stock. "On June 3, 2016, the Court appointed Clark Miller to serve as lead plaintiff. On June 24, 2016, the plaintiff filed a first amended complaint naming a former employee of Insys Therapeutics, Inc. as an additional defendant and extending the class period. On December 22, 2016, the plaintiff filed a second amended complaint, primarily to add allegations relating to an indictment of Michael L. Babich and certain of our former employees announced on December 8, 2016, and to extend the class period from August 12, 2014 through December 8, 2016. "On January 12, 2017, the defendants moved to dismiss the second amended complaint. Oral arguments were heard by the Court on July 28, 2017, and the Court granted the motion in part and denied it in part. The plaintiff subsequently moved for leave to further amend the complaint, which we opposed. The Court denied Plaintiff's motion on March 31, 2018, and Insys filed its answer on April 13, 2018. The plaintiff seeks unspecified monetary damages and other relief. We continue to vigorously defend this matter." Insys is a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products. INSYS THERAPEUTICS: Motion to Dismiss NY Class Suit Pending ----------------------------------------------------------- Insys Therapeutics, Inc.'s motion to dismiss the consolidated purported class action in New York remains pending, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "On or about March 17, 2017, a complaint (captioned Kayd Currier v. Insys Therapeutics, Inc., et al., Case 1:17-cv-01954-PAC) was filed in United States District Court for the Southern District of New York against us and certain of our current and former officers. The complaint was brought as a purported class action on behalf of purchasers of our securities between February 23, 2016, and March 15, 2017. In general, the plaintiffs allege that the defendants violated the anti-fraud provisions of the federal securities laws by making materially false and misleading statements regarding our business and financial results during the class period, thereby artificially inflating the price of our securities. "On or about March 28, 2017, a second complaint making similar allegations (captioned Hans E. Erdmann v. Insys Therapeutics, Inc., et al., Case 1:17-cv-02225-PAC) was filed in the same Court. "On May 31, 2017, the Court consolidated the first and second complaint and appointed lead counsel in the consolidated action. On July 31, 2017, the lead counsel filed a consolidated complaint. On October 11, 2017, the Court held a pre-motion conference, at which the Court granted leave to plaintiffs to again amend the complaint. The amendment was filed on October 27, 2017, and we moved to dismiss. The Motion to Dismiss remains pending. "The plaintiffs in both actions seek unspecified monetary damages and other relief. We continue to vigorously defend this matter." Insys is a commercial-stage specialty pharmaceutical company that develops and commercializes innovative supportive care products. INTERCEPT PHARMACEUTICALS: Still Faces "DeSmet" Suit in S.D.N.Y. ---------------------------------------------------------------- Intercept Pharmaceuticals, Inc. continues to defend itself against the purported shareholder class action filed by Judith DeSmet in the U.S. District Court for the Southern District of New York, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "On September 27, 2017, a purported shareholder class action, styled Judith DeSmet v. Intercept Pharmaceuticals, Inc., Mark Pruzanski and Sandip S. Kapadia was filed in the United States District Court for the Southern District of New York, naming us and certain of our officers as defendants. This lawsuit was filed by a stockholder who claims to be suing on behalf of anyone who purchased or otherwise acquired our securities between May 31, 2016 and September 20, 2017. This lawsuit alleges that material misrepresentations and/or omissions of material fact were made in our public disclosures during the period from May 31, 2016 to September 20, 2017, in violation of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. The alleged improper disclosures relate to statements regarding our business, operational and compliance policies. The plaintiff seeks unspecified monetary damages on behalf of the putative class and an award of costs and expenses, including attorney's fees. The Court has not yet appointed a lead plaintiff and lead plaintiff's counsel. "On January 5, 2018, a follow-on derivative suit, styled Davis v. Pruzanski et al., was filed in New York state court by shareholder Gregg Davis based on substantially the same allegations as those set forth in the securities case. On December 1, 2017, a purported shareholder demand was made on the Company based on substantially the same allegations as those set forth in the securities case. "While we believe that we have a number of valid defenses to the claims described above and intend to vigorously defend ourselves, the matters are in the early stages of litigation and no assessment can be made as to the likely outcome of the matters or whether they will be material to us. Accordingly, an estimate of the potential loss, or range of loss, if any, to us relating to the matters is not possible at this time." Intercept Pharmaceuticals, Inc. is a biopharmaceutical company focused on the development and commercialization of novel therapeutics to treat progressive non-viral liver diseases, including primary biliary cholangitis ("PBC"), nonalcoholic steatohepatitis ("NASH"), primary sclerosing cholangitis ("PSC") and biliary atresia. The Company currently has one marketed product, Ocaliva (obeticholic acid or "OCA"). Founded in 2002 in New York, Intercept has operations in the United States, Europe and Canada. IOVANCE BIOTHERAPEUTICS: Securities Class Lawsuit Still Ongoing --------------------------------------------------------------- Iovance Biotherapeutics, Inc. continues to defend itself in a class action lawsuit related to alleged violations of federal securities laws, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018. The Company said, "On April 10, 2017, the SEC announced settlements with us and with other public companies and unrelated parties in the In the Matter of Certain Stock Promotion investigation. Our settlement with the SEC is consistent with our previous disclosures (including in our Annual Report on Form 10-K that we filed with the SEC on March 9, 2017). On April 14, 2017, a purported shareholder filed a complaint seeking class action status in the United States District Court, Northern District of California for violations of the federal securities laws (Leonard DeSilvio v. Lion Biotechnologies, Inc., et al., Case No. 3:17-cv-2086) against our company and three of our former officers and directors. On April 19, 2017, a second class action complaint (Amra Kuc vs. Lion Biotechnologies, Inc., et al., Case No. 3:17-cv-2188) was filed in the same court. Both complaints allege, among other things, that the defendants violated the federal securities laws by making materially false and misleading statements, or by failing to make certain disclosures, regarding the actions taken by Manish Singh, our former CEO, and our former investor relations firm that were the subject of the In the Matter of Certain Stock Promotions investigation. On July 20, 2017, the plaintiff in the Kuc case filed a notice to voluntarily dismiss that case. The court entered an order dismissing the Kuc complaint on July 21, 2017. On July 26, 2017, the court appointed a movant as lead plaintiff. On September 8, 2017, the lead plaintiff filed an amended complaint (Jay Rabkin v. Lion Biotechnologies, Inc., et al., Case No. 3:17-cv-2086) seeking class action status that alleges, among other things, that the defendants violated federal securities laws by making materially false and misleading statements, or by failing to make certain disclosures, regarding the actions taken by Manish Singh and our former investor relations firm that were the subject of the In the Matter of Certain Stock Promotions SEC investigation. On February 5, 2018, the court entered an order dismissing two of Plaintiff's six claims." Iovance Biotherapeutics, Inc. is a biopharmaceutical company focused on the development and commercialization of novel cancer immunotherapy products designed to harness the power of a patient's own immune system to eradicate cancer cells. On June 1, 2017, the Company reincorporated to become a Company governed by Delaware corporation laws. On June 27, 2017, we changed our name to Iovance Biotherapeutics, Inc from Lion Biotechnologies, Inc. J ALEXANDERS: "Elstein" Shareholder Suit Still Pending ------------------------------------------------------ Margie Elstein's class action lawsuit against J. Alexander's Holdings, Inc. remains pending as of April 1, 2018, despite the termination of a merger agreement, which was the focus of the litigation, according to the Form 10-Q of J. Alexander's Holdings, Inc. filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended April 1, 2018. The Company said, "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. had conflicts of interest related to the Company's proposed 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 FNH, then FNFV, and FNF defendants aided and abetted the Board's purported breach of its fiduciary duties. "[I]n the first quarter of 2018, the merger agreement was terminated. However, this case was still pending as of April 1, 2018." 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. J2 GLOBAL: Appeal from Nixed Davis Neurology Suit Still Pending --------------------------------------------------------------- Davis Neurology's appeal from the dismissed putative class action against j2 Global, Inc. is still pending, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 31, 2018. On January 21, 2016, Davis Neurology, P.A. filed a putative class action against two j2 Global affiliates in the Circuit Court for the County of Pope, State of Arkansas (58-cv-2016-40), alleging violations of the TCPA. The case was ultimately removed to the U.S. District Court for the Eastern District of Arkansas (the "Eastern District of Arkansas") (No. 4:16-cv-00682). On June 6, 2016, the j2 Global affiliates filed a motion for judgment on the pleadings. On March 20, 2017, the Eastern District of Arkansas dismissed all claims against the j2 Global affiliates. On April 17, 2017, Davis Neurology filed a notice of appeal. On June 20, 2017, Davis Neurology filed its appeal brief. On August 4, 2017 the j2 Global affiliates filed a response brief. On August 21, 2017, Davis Neurology filed a reply brief. Oral argument was held January 11, 2018. The j2 Global affiliates submitted a supplemental letter briefing on February 8, 2018 and March 7, 2018. Davis Neurology submitted a supplemental letter brief on February 15, 2018. The appeal is pending. j2 Global, Inc., together with its subsidiaries, is a provider of Internet services. Through its Business Cloud Services Division, the Company provides cloud services to businesses of all sizes, from individuals to enterprises, and licenses its intellectual property to third parties. In addition, the Business Cloud Services Division includes j2 Cloud Connect, which primarily focuses on our voice and fax products. The Digital Media Division specializes in the technology, gaming, lifestyle markets and healthcare markets, reaching in-market buyers and influencers in both the consumer and business-to-business space. JAMAICA HOSPITAL: Court Denies Certification of "Hawkins" Class --------------------------------------------------------------- In the case, SHAHED HAWKINS and KENNETH ZUBLIONIS, on behalf of themselves and on behalf of a proposed class of similarly situated individuals, Plaintiffs, v. JAMAICA HOSPITAL MEDICAL CENTER DIAGNOSTIC AND TREATMENT CENTER CORP., Defendant, Case No. 16-CV-4265 (RRM) (CLP) (E.D. N.Y.), Judge Roslynn R. Mauskopf of the U.S. District Court for the Eastern District of New York adopted Magistrate Judge Cheryl Pollak's report and recommendation ("R&R") denying the Plaintiffs' motion for class certification with leave to renew after discovery. Hawkins and Zublionis bring the putative class action against Jamaica Hospital, alleging that it collected their genetic information in violation of the Genetic Information Nondiscrimination Act ("GINA"). Both the Plaintiffs are former employees of Jamaica Hospital, who were asked to fill out forms about their genetic information when applying for their respective positions at the Hospital. Both the Plaintiffs have since left their jobs at Jamaica Hospital. They seek damages on the basis that the Hospital collected their genetic information in violation of GINA, as well as an injunction, directing the Hospital to destroy the genetic information it still possesses. The Plaintiffs moved for class certification. The Court respectfully referred the motion to the Magistrate Judge for R&R. Before the Court is Judge Pollak's R&R, which recommended: (1) denying class certification with leave to renew after discovery; (2) finding that the Plaintiffs have standing to bring their claim for damages; and (3) finding that the Plaintiffs do not have standing to bring their claim for injunctive relief. The Plaintiffs do not object to the first two recommendations, but object to the R&R's recommendation about their standing to seek injunctive relief. They offer two theories about how the retention of their genetic information injures them. First, retention enables the Hospital to "revert back to requesting" genetic information in the event that they ever re-apply to work at the Hospital; and second, the retention in itself is harmful. Judge Mauskopf finds that this alleged injury is simply too conjectural to demonstrate actual injury for the purposes of Article III standing. The theory is premised on two speculative actions: that the Plaintiffs re-apply, and that, in response, the Hospital would revert to requesting their genetic information. She says the Plaintiffs have not re-applied for their jobs at Jamaica Hospital, and none of their papers indicate that they intend to so do. As for their second theory of harm, the Judge finds that the Plaintiffs maintain that the retention itself is injurious. However, they have not identified how the retention injures them for the purposes of Article III standing. Their claim is essentially that if mere collection of their genetic information is an injury that confers standing to seek damages, then retention of that information is similarly injurious to seek injunctive relief to have it destroyed. This argument, the Judge says, loses sight of the core purpose of GINA and Congress's intent in protecting employees from a risk of discrimination. The Hospital committed a procedural violation of GINA by collecting the Plaintiffs' genetic information through a questionnaire; there is no allegation of discrimination. Though the Plaintiffs here have identified how the collection of their genetic information injured them, they have not done so for the retention of their information. Accordingly, upon de novo review, the Judge overruled the Plaintiffs' objections to Magistrate Judge Pollak's R&R, and she concurred with the Magistrate Judge's standing analysis in full: the Plaintiffs have standing to seek damages on the basis that the Hospital collected their genetic information, but do not have standing to seek injunctive relief. For these reasons stated, she adopted Magistrate Judge Pollak's well-reasoned R&R in its entirety. The case is recommitted to the Magistrate Judge for all pre-trial matters. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/0OoZAH from Leagle.com. Shahed Hawkins, individually and on behalf of a proposed class of similarly situated individuals, Plaintiff, represented by Jeanne- Marie Bates Christensen -- jchristensen@wigdorlaw.com -- Wigdor LLP & Hilary Joy Orzick -- Horzick@wigdorlaw.com -- Wigdor LLP. Kenneth Zublionis, on behalf of himself and on behalf of a proposed class of similarly situated individuals, Plaintiff, represented by Hilary Joy Orzick, Wigdor LLP. Jamaica Hospital Medical Center Diagnostic and Treatment Center Corporation, Defendant, represented by Gregory Bertram Reilly -- gregory.reilly@mcblaw.com -- Martin Clearwater & Bell, LLP. JOHNNIE'S ON THE SIDE: Fails to Pay Wages, Casanova Says -------------------------------------------------------- ERIKA CASANOVA a/k/a ERICA CASANOVA and all others similarly situated, the Plaintiff, v. JOHNNIE'S ON THE SIDE LLC d/b/a WEST SIDE JOHNNIES, and JOHN CARON, the Defendant, Case No. 18-1404 (Mass. Dist. Ct., May 14, 2018), seeks to recover unpaid wages and unpaid overtime wages, treble damages, interest, costs and attorneys' fees, and all other relief to which she and all others similarly situated are entitled, pursuant to the Massachusetts wage laws. According to the complaint, the Plaintiff and all others similarly situated have not been paid all wages owed. The Defendants have violated the Massachusetts wage laws by failing to pay their employees based in Massachusetts for all hours worked.[BN] The Plaintiff is represented by: David B. Summer, Esq. 100 State Street, Suite 900 Boston, MA 02109 Telephone: (617) 695 0050 E-mail: david@summerlaw.com JOHNSON & JOHNSON: Ct. Vacates Pending Motions in "Martinelli" -------------------------------------------------------------- Judge Morrison C. England, Jr., of the U.S. District Court for the Eastern District of California vacated all pending motions in the case, JOANN MARTINELLI, individually and on behalf of all others similarly situated, Plaintiff, v. JOHNSON & JOHNSON and McNEIL NUTRITIONALS, LLC, Defendants, Case No. 2:15-cv-01733-MCE- DB (E.D. Cal.). Through the class action, the Plaintiff, individually and on behalf of others similarly situated, seeks relief from the Defendants arising from the labeling and sale of Benecol Regular and Light Spreads. The Plaintiff alleges eight causes of action: (1) breach of express warranty, (2) breach of implied warranty of merchantability, (3) unjust enrichment, (4) violation of California's Consumers Legal Remedies Act, (5) violation of California's Unfair Competition Law, (6) violation of California's False Advertising Law, (7) negligent misrepresentation, and (8) fraud. On May 23, 2017, the Court denied the Plaintiff's Motion for Leave to File a Second Amended Complaint, and granted the Defendants' Motion to Deny Nationwide Class Certification. The latter portion of the Order denied certification of the Plaintiff's proposed nationwide class, leaving the Plaintiff's proposed California subclass unaffected. On Aug. 28, 2017, the Plaintiff filed a Motion to Certify two classes: the previously named California Class, and a Multistate Express Warranty Class. That motion was originally noticed for Dec. 14, 2017, and continued by the parties to March 8, 2018. After the filing of that motion, the Defendants filed an Opposition and two separate motions to exclude the Plaintiff's experts. The Plaintiff separately opposed each motion to exclude, filed three Motions to Strike various of the Defendants' expert testimony (all of which Defendants opposed separately), and separately filed two expert declarations in support of her original Motion to Certify the Class. The Defendants then submitted a surreply in response to the Plaintiff's reply in support of her Motion, and two motions to strike the reply declarations of the Plaintiff's experts, all of which were opposed by the Plaintiff. On Feb. 26, 2018, the Plaintiff filed an ex parte Application for an order striking the Defendants' new arguments and striking their untimely oppositions to the Plaintiff's motions to strike. The Defendants' have opposed that application. All motions were scheduled for a hearing date of March 8, 2018, and all are currently pending before the Court. All total, the parties have filed nine noticed motions/applications, and 28 separate filings, all related to a single class certification motion, and the majority of them dealing with evidentiary and expert issues. As set forth in the Court's March 7, 2016 Scheduling Order, with regard to the class certification motion, the Court places a page limit for points and authorities (exclusive of exhibits and other supporting documentation) of 20 pages on all initial moving papers, 20 pages on oppositions, and 10 pages for replies. The reason for these limits is twofold: (1) with rare exception, anything that needs to be conveyed to the Court can be conveyed in 20 pages; and (2) the Court's resources are limited. Though the parties have technically complied with those page limits in each of their filings, they have filed nine separately noticed motions all relating to the same single issue of class certification. On top of those nine opposed motions, the parties have filed surreplies, replies to surreplies, ex parte requests, and notices of supplemental authority -- 28 total filings, by the Court's count. Certainly, some additional filings are warranted in some cases, but based on the repetitive and cumulative nature of these 28 additional filings, such is not the case here. The parties have muddled the docket, unnecessarily complicated issues that could be simplified, buried the Court in an attempt to paper each other to death, and, in sum, violated the spirit of the Court's Scheduling Order. Consequently, and pursuant to the Court's inherent power to manage its docket, Judge England vacated all pending motions. He ordered the Plaintiff to refile her Motion for Class Certification no earlier than April 1, 2018, noticing that motion for Aug. 9, 2018. Each side is permitted to file only one evidentiary motion encompassing all challenges to experts and/or other evidence. Such Motions will also be noticed for Aug. 9, 2018. Any evidentiary motion from Defendants will be filed simultaneously with the Defendants' Opposition to the Plaintiff's certification motion. Any evidentiary motion from the Plaintiff will be filed simultaneously with her Reply in support of her certification motion. The Judge also ordered that not later than 10 days following the date the Order is electronically filed, the parties are directed to meet and confer and to file with the Court a stipulated briefing schedule (and proposed order) that ensures that all of the foregoing motions will be fully briefed prior to the Aug. 9, 2018, hearing date. All motions will be submitted unless and until such time the court determines whether oral argument will be necessary. He further ordered the parties to file a statement with the Court advising when briefing is completed. At the time such statement is submitted, the parties are ordered to submit on one joint jump drive or disc, unredacted copies of all filings and supporting documents, organized by motion. A full-text copy of the Court's March 27, 2018 Memorandum and Order is available at https://is.gd/QiCnzN from Leagle.com. JoAnn Martinelli, Plaintiff, represented by Annick Marie Persinger, Bursor & Fisher, P.A., Frederick J. Klorczyk -- fklorczyk@bursor.com -- Bursor and Fisher, P. A., pro hac vice, Joseph I. Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A., pro hac vice, Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor and Fisher, PA, Neal J. Deckant -- ndeckant@bursor.com -- Bursor and Fisher, P. A., pro hac vice, Yeremey Olegovich Krivoshey -- ykrivoshey@bursor.com -- Bursor & Fisher, P.A. & Joel Dashiell Smith -- jsmith@bursor.com -- Bursor & Fisher, P.A. Johnson & Johnson & McNeil Nutritionals, LLC, Defendants, represented by Amanda Villalobos -- amanda.villalobos@tuckerellis.com -- Tucker Ellis, LLP & Ronie Malka Schmelz -- ronie.schmelz@tuckerellis.com -- Tucker Ellis LLP. JOHNSON & JOHNSON: Court Denies Bid to Dismiss "Bowling" Suit ------------------------------------------------------------- In the case, Suzanna Bowling, Plaintiff, v. Johnson & Johnson and McNeil Nutritionals, LLC, Defendants, Case No. 17-cv-3982 (AJN) (S.D. N.Y.), Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York denied the Defendants' motion to dismiss or, in the alternative, to strike the nationwide class allegations in the complaint. Bowling brings the putative class action alleging that Benecol Spread and Benecol Light Spread, manufactured by the Defendants, were falsely and misleadingly labeled as containing no trans fat and no trans fatty acid. During the time period at issue in the case, the Defendants manufactured Benecol Regular and Light Spreads. The nutrition label on the Benecol Spreads listed the amount of trans fat contained in the Spreads as zero grams. The Benecol Spread containers also displayed a label stating that the Spread contained no trans fats or trans fatty acids. However, the Benecol Spreads contained partially hydrogenated soybean oil, which contains trans fats. On May 25, 2017, the Plaintiff filed suit in the case, alleging that the Defendants falsely and misleadingly labeled the Benecol Spreads by representing that they contained "no trans fat" and "no trans fatty acids" and by representing that the products were generally recognized as safe for human consumption. She asserts claims of breach of express warranty, breach of implied warranty of merchantability, unjust enrichment, violation of New York's General Business Law Sections 349 and 350, negligent misrepresentation, and fraud. The Plaintiff seeks to represent a class of all persons in the United States who purchased Benecol Spreads, as well as a subclass of all persons who purchased Benecol Spreads in New York. On July 21, 2017, the Defendants filed a motion to dismiss the Plaintiff's complaint or, in the alternative, to strike the nationwide class allegations. They argue the Plaintiff's claims are preempted because the National Labeling and Education Act expressly preempts state laws that impose labeling requirements different from those imposed by federal law, and the Plaintiff's claims allege a state law requirement different from the federal one. In addition, they contend that even if the complaint is not dismissed, the Plaintiff's nationwide class allegations should be stricken from the complaint, arguing that variations in state law related to the Plaintiff's fraud- and deception-based claims necessarily render it impossible for the Court to certify a nationwide class for any of the Plaintiff's claims under Rule 23(b)(3). Judge Nathan explains that the FDA regulations do not authorize "no trans fat" nutrient content claims. The Plaintiff's argument that "no trans fat" representations are false and/or misleading in this case is thus not preempted expressly or impliedly by federal law. Accordingly, the Defendants' motion to dismiss the Plaintiff's complaint as preempted is denied. Given the allegations in the Plaintiff's complaint and the limited briefing on the issue of being unsafe for human consumption, and given that the Defendants do not argue that the Plaintiff needs the "unsafe for human consumption" theory to succeed on any count in the complaint, the Judge declines to decide the issue at this stage. The Defendants may renew the argument, if appropriate, at summary judgment. Finally, the Judge finds that the Defendants' motion to strike is grounded in the argument that the Plaintiff will be unable to satisfy Rule 23(b)(3)'s predominance requirement. She says they may very well be right. But that argument is one that can be made at the class certification stage. At this early stage of the proceeding, the motion to strike the nationwide class allegations is premature. Accordingly, she denied the motion. For these reasons, Judge Nathan denied the Defendants' motion to dismiss or, in the alternative, to strike the nationwide class allegations. This resolves Docket Number 11. An initial pretrial conference is scheduled in the matter for May 4, 2018, at 3.pm. The materials discussed at Docket Number 7 are due seven days before that conference. A full-text copy of the Court's March 27, 2018 Memorandum Opinion and Order is available at https://is.gd/HQCdcX from Leagle.com. Suzanna Bowling, individually and on behalf of all others similarly situated, Plaintiff, represented by Neal Jamison Deckant -- ndeckant@bursor.com -- Bursor & Fisher, P.A. Johnson & Johnson & McNeil Nutritionals, LLC, Defendants, represented by Ronie Malka Schmelz -- ronie.schmelz@tuckerellis.com -- Tucker Ellis LLP & Katherine Anne Garceau -- katherine.garceau@tuckellis.com -- Tucker Ellis LLP. JONES FINANCIAL: Bid to Dismiss Retirement Plan Lawsuit Denied -------------------------------------------------------------- The defendants' motion to dismiss the Retirement Plan Litigation has been denied, according to the Form 10-Q of The Jones Financial Companies, L.L.L.P. (JFC) filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 30, 2018. 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 was denied on March 27, 2018. 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: Court Approves "White" Class Suit Settlement ------------------------------------------------------------- The Jones Financial Companies, L.L.L.P. (JFC) disclosed on its Form 10-Q filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 30, 2018, that the court has approved the parties' settlement of the class suit captioned White v. Edward D. Jones & Co., L.P. 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 April 24, 2018, the court approved the parties' settlement and issued its final order of dismissal, without prejudice. 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: "Bland" Wage-and-Hour Class Action Underway ------------------------------------------------------------ The Jones Financial Companies, L.L.L.P. (JFC) is facing a purported collective and class action lawsuit initiated by Bland, et al., according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 30, 2018. On March 13, 2018, JFC and Edward Jones were named as defendants in a purported collective and class action lawsuit (Bland, et al. v. Edward D. Jones & Co., L.P, et al.) filed in the U.S. District Court for the Northern District of Illinois by four former financial advisors. The lawsuit was brought under the Fair Labor Standards Act as well as Missouri and Illinois law and alleges that the defendants unlawfully attempted to recoup training costs from departing financial advisors and failed to pay all overtime owed to financial advisor trainees among other claims. The lawsuit seeks declaratory and injunctive relief, compensatory and liquidated damages. JFC and Edward Jones intend to vigorously defend against the allegations in this lawsuit. 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: Subsidiary Faces Securities Class Suit ------------------------------------------------------- The principal operating subsidiary of The Jones Financial Companies, L.L.L.P. (JFC) is facing securities class action filed by Anderson, et al., according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on May 10, 2018, for the quarterly period ended March 30, 2018. On March 30, 2018, Edward D. Jones & Co., L.P. and its affiliated entities and individuals were named as defendants in a putative class action (Anderson, et al. v. Edward D. Jones & Co., L.P., et al.) filed in the U.S. District Court for the Eastern District of California. The lawsuit was brought under the Securities Act of 1933 and the Securities Exchange Act of 1934, as well as Missouri and California law and alleges that the defendants inappropriately transitioned clients from commission-based accounts to fee-based programs. The plaintiffs have requested declaratory, equitable, and exemplary relief, and compensatory damages. Edward Jones and its affiliated entities and individuals deny the allegations and intend to vigorously defend this lawsuit. 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. LITHIA MOTORS: Court Narrows Claims in 3rd Amended "Mendoza" Suit ----------------------------------------------------------------- In the case, JOSEPH FRANK MENDOZA, MARTIN and CAROL JOCKS, DAWN CAVEYE and GINA and DANA DALTON, individually and on behalf of all others similarly situated, Plaintiffs, v. LITHIA MOTORS, INC., LITHIA FINANCIAL CORPORATION, SALEM-V, LLC d/b/a VOLKSWAGEN OF SALEM, LITHIA KLAMATH, INC. d/b/a LITHIA KLAMATH FALLS AUTO CENTER, and LITHIA MEDFORD HON, INC., Defendants, Case No. 6:16- cv-01264-AA (D. Or.), Judge Ann Aiken of the U.S. District Court for the District of Oregon, Eugene Division, granted in part and denied in part the Defendants' Partial Motion to Dismiss Plaintiffs' Third Amended Complaint. The Plaintiffs bring the putative class action suit against the Defendants, asserting various claims, including common law fraud, violations of the federal Truth in Lending Act ("TILA"), Oregon's Unlawful Trade Practices Act ("UTPA"), and Oregon's financial elder abuse statute. The named Plaintiffs are residents of Oregon or California, who purchased vehicles and other goods or services from one or more of the Defendants, all of which are headquartered in Oregon. On June 6, 2016, Mr. Mendoza purchased a vehicle from Lithia at its Volkswagen of Salem dealership. The dealership arranged for vehicle financing with an interest rate of 3.94%, a higher rate than provided by the lender. In doing so, Lithia retained what the Plaintiffs term a kickback in connection with the arrangement of financing. Lithia also sold Mr. Mendoza products and services obtained through third parties. Specifically, Mr. Mendoza paid Lithia $2,495 for a vehicle service contract and $695 for gap insurance; both amounts exceeded Lithia's actual purchase price. Lithia purchased the service contract for $995 and the gap insurance for $278 and retained the difference as profit. Lithia did not disclose its specific fees associated with the arrangement of financing or the profit margins related to the sale of third-party products and services. In February 2013, Plaintiffs Carol and Martin Jocks purchased a vehicle from a Lithia dealership in Klamath Falls, Oregon. Then, in August 2013, the Jocks purchased another vehicle from the same dealership. Carol Jocks was over the age of 65 at the time of the purchases. In August 2013, Lithia arranged for vehicle financing at an interest rate of 3.99%, a higher rate than provided by the lender. In doing so, Lithia retained a fee in connection with the arrangement of financing. It also sold the Jocks products and services obtained through third parties. Lithia purchased the lifetime oil service for $449.50, credit life insurance for $1,718.63, and gap insurance for $285; Lithia then sold these products to the Jocks and retained the difference as profit. It did not disclose its specific fees associated with the arrangement of financing or the profit margins related to the sale of third party products and services. Plaintiffs Caveye and Dalton also purchased vehicles from Lithia, in November 2014 and May 2016 respectively. The circumstances surrounding these purchases are largely similar to those mentioned. In both instances, Lithia arranged for financing and sold third-party products/services to them. In both instances, Lithia retained and did not disclose fees associated with the arrangement of financing or profits related to the sale of third- party products and services. On June 24, 2016, the Plaintiffs filed the class action suit. On Sept. 22, 2016, the Defendants moved to dismiss the Plaintiffs' claims. In ruling on the Defendants' motion, Judge Aiken dismissed various claims by the Plaintiff, but also granted the Plaintiffs leave to amend their complaint. Since the original filing, the Judge has granted the Plaintiffs leave to amend on three separate occasions. On June 19, 2017, she granted their Motion for Leave to File Third Amended Complaint. The Defendants now move to dismiss certain claims contained therein. As to TILA disclosure requirements, Judge Aiken finds it undisputed that the retail installment contracts at issue contain language indicating the creditor may retain a portion of the fees associated with third-party transactions. Because she finds that the language of Lithia's contracts satisfies TILA's disclosure requirements with respect to the sale of third party products, the Plaintiffs' allegations are insufficient to state a claim upon which relief may be granted. Further, she finds that amendment to the pleadings would to cure these defects. In construing the requirements of Section 1605(a), she finds that the yield spread premiums and fees allegedly retained by Lithia are indeed encompassed in the finance charge and are not required to be independently disclosed under TILA. Accordingly, she says the Plaintiffs' allegations mentioned are not sufficient to state a claim under TILA, and she finds that amendment would not cure these defects. Also, the alleged violation of O.R.S. 646.608(1)(u) is dependent on a violation of TILA. Because the Plaintiffs fail to state claims under TILA, they also fail to state a claim under OAR 137-020-0040(2). As to common law fraud claim, Judge Aiken finds that the facts, viewed in the light most favorable to the Plaintiffs, are not sufficient to support a claim for fraud. First, Lithia did not represent that the lifetime oil service provider was a third party. Simply because the title indicates that the listed charges include amounts paid to others, it certainly does not foreclose that the list may include amounts retained by Lithia, which owns DMS. Indeed, even if a consumer were to misread the title and assume the listed charges were paid entirely to third parties, the title includes additional language stating that Lithia "may be retaining a portion of this amount. Thus, the language in the retail installment contracts is not false. For all of these reasons, the Judge finds that the Plaintiffs' allegations fall short of those that may support a claim for fraud. Next, as to UTPA claims arising under O.R.S. Section 646.808 and OAR 137-020-0020(3)(u), the Judge finds that the profit retained by Lithia is immaterial, as that is not a required disclosure. Thus, the Plaintiffs do not state a claim under O.R.S. Section 646.608(1)(a),(b), or (c). Turning to the remaining alleged violations of UTPA, Lithia correctly points out that the alleged misrepresentations do not include price reductions. Accordingly, ORS 646.6081(1)(j) is inapplicable to the Plaintiffs' claims. While Lithia's contractual disclosures alone are not sufficient to avoid liability under O.R.S. Section 646.608(1)(s), the Judge finds that the Plaintiffs' proposed reading of the statute is untenable under the circumstances. As Lithia points out, the Plaintiffs' expansive reading of the statute would lead to the absurd result of requiring any seller of real estate, goods, and services to disclose its profit margins to consumers. The UTPA cannot be stretched so far as to reach such a conclusion. Accordingly, they do not state a claim under O.R.S. Section 646.6081(1)(s). Finally, the Judge finds that the Plaintiffs state a claim under O.R.S. Section 646.608(1)(u) and OAR 137-020-0020(3)(u), and she needs not address the merits of their additional arguments at this stage of the proceeding. However, their allegation that Lithia kept a yield spread premium of more than three points is a new line of argument, absent from the Third Amended Complaint. The Plaintiffs will be granted leave to amend their complaint on the allegation. As she has explained, Judge Aiken granted in part and denied in part the Defendants' Partial Motion to Dismiss Plaintiffs' Third Amended Complaint. She granted in part and denied in part the Plaintiffs' Request for Leave to Amend. Specifically, she dismissed with prejudice the Plaintiffs' claims under TILA, as well as claims under the UTPA based on violations of TILA. She also dismissed with prejudice their claims under O.R.S. Sections 646.608(1)(a), (b), (c), G), and (s). However, she did not dismiss the Plaintiffs' claim under O.R.S. Section 646.608(1)(u) and OAR 137-020-0020(3)(u), and granted them 30 days from the Order to amend their complaint on this allegation. A full-text copy of the Court's March 27, 2018 Opinion and Order is available at https://is.gd/knWBgB from Leagle.com. Joseph Frank Mendoza, individually and on behalf of all others similarly situated, Martin Jocks, individually and on behalf of all others similarly situated, Carol Jocks, individually and on behalf of all others similarly situated, Gina Dalton, Dana Dalton & Dawn Caveye, Plaintiffs, represented by Bonner Charles Walsh -- bonner@walshpllc.com -- Walsh PLLC, Hsien C. Chang, McGehee Chang Barnes Landgraf, pro hac vice, Jack E. McGehee, Esq. -- txlaw@lawtx.com -- MCGEHEE CHANG BARNES LANDGRAF -- Young W. Walgenkim, Esq. -- young@hansonwalgenkim.com -- HANSON & WALGENKIM, LLC Lithia Motors, Inc., Lithia Financial Corporation, Salem-V, LLC, doing business as Volkswagen of Salem, Lithia Klamath, Inc., doing business as Volkswagen of Salem & Lithia Medford Hon, Inc., Defendants, represented by Jeremy D. Sacks, Esq. -- Jeremy.sacks@stoel.com -- Keith E. McIntire, Esq. -- keith.mcintire@stoel.com -- and -- Kennon H. Scott, Esq. -- kennon.scott.stoel.com -- STOEL RIVES LLP LIVINGSTON COUNTY, MI: "Carr" Suit Seeks to Certify FLSA Class -------------------------------------------------------------- In the lawsuit styled DON CARR, MACK CARR, AUTUMN MILLEROV, THOMAS JOHNSON, TRACEY CAMELET, and all other persons similarly situated, known or unknown, the Plaintiffs, v. LIVINGSTON COUNTY BOARD OF COMMISSIONERS, AND LIVINGSTON COUNTY, the Defendants, Case No. 3:18-cv-11313-RHC-SDD (E.D. Mich.), Plaintiffs ask the Court, pursuant to Section 16(b) of the Fair Labor Standards Act, for an order: 1. conditionally certifying a proposed collective FLSA class; 2. implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claim is sent (via US Mail and e-mail) to: "all Emergency Medical Technicians who worked for Defendants at any time between April 27, 2015 and present and who worked at any time in excess of forty (40) hours per workweek"; and 3. requiring Defendants to identify all potential opt-in Plaintiffs by providing names, last known addresses, dates of employment, job titles, phone numbers, and email addresses in an electronic and importable format within 10 days of the entry of the order. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UmQ6Khri The Plaintiffs are represented by: David A. Kotzian, Esq. David F. Greco, Esq. Angela Mannarino, Esq. GASIOREK, MORGAN, GRECO, McCAULEY & KOTZIAN, P.C. 30500 Northwestern Highway, Suite 425 Farmington Hills, MI 48334 Telephone: (248) 865 0001 Facsimile: (248) 865 0002 E-mail: dkotzian@gmgmklaw.com dgreco@gmgmklaw.com amannarino@gmgmklaw.com The Defendants are represented by: Bonnie G. Toskey (P30601) Sarah K. Osburn (P55539) COHN, STOKER & TOSKEY, P.C. 601 N. Capitol Avenue Lansing, MI 48933 Telephone: (517) 372 9000 Facsimile: (517) 372 1026 E-mail: btoskey@cstmlaw.com sosburn@cstmlaw.com L'OREAL USA: Moved "Wallace" Suit to E.D. California ---------------------------------------------------- In the lawsuit captioned DIVENA WALLACE and XAVIER REYES, individually, and on behalf of themselves and a class of similarly situated persons, the Plaintiffs, v. L'OREAL, USA S/D, INC., a Delaware Corporation; RANDSTAD NORTH AMERICA, INC., a Delaware Corporation; AND DOES 1-50, inclusive, the Defendants, (Case No. 34-2018-00230222), the Defendants removed the case from the Superior Court of the State of California, County of Sacramento to the United States District Court for the Eastern District of California, asserting original jurisdiction under the Class Action Fairness Act. The District Court Clerk assigned Case No. 2:18-cv-01222-JAM-CKD to the proceeding. On April 3, 2018, the Plaintiffs filed a class action complaint in the Superior Court of the State of California against the Defendants. The Complaint purports to allege nine claims for relief, including: (1) failure to pay minimum wage; (2) failure to pay overtime; (3) failure to provide meal and rest periods; (4) failure to provide accurate, itemized wage statements; (5) failure to pay all wages due at termination; (6) failure to maintain records; (7) failure to indemnify business expenses; (8) failure to provide paid sick leave; and (9) unfair business practices.[BN] Attorneys for Defendants: Christian J. Rowley, Esq. Michael A. Wahlander, Esq. Pamela L. Vartabedian, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397 2823 Facsimile: (415) 397 8549 E-mail: crowley@seyfarth.com mwahlander@seyfarth.com pvartabedian@seyfarth.com MAGICJACK VOCALTEC: Bid to Dismiss "Freedman" Suit Still Pending ---------------------------------------------------------------- magicJack VocalTec Ltd. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that no decision has yet been reached on the motion to dismiss the amended complaint in the putative class action lawsuit titled Freedman v. magicJack VocalTec Ltd. et al., Case 9-17-cv-80940. On August 11, 2017, the case was filed against the Company and its Board of Directors in the United States District Court for the Southern District of Florida. The complaint alleged claims against the Company and the current members of its Board of Directors as well as two former members for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, arising from proxy statements issued in connection with the April 19, 2017 shareholders meeting and the July 31, 2017 shareholders meeting that allegedly misrepresented material facts concerning the "true value" of Broadsmart Global, Inc. and its future prospects in order that the individual defendants (the Board members) could entrench themselves on the Board and extract unwarranted compensation from the Company in connection with their attempt to sell the Company. In January 2018, the plaintiff filed an Amended Complaint. On February 16, 2018, the Company and all of the individual defendants filed a motion to dismiss the Amended Complaint. The plaintiff filed his opposition to the motion to dismiss on April 2, 2018, and defendants' reply was filed on April 19, 2018. No decision has yet been reached on the motion. magicJack VocalTec said, "The Company cannot estimate the likelihood of liability or the amount of potential damages, if any, that could arise from this matter." magicJack VocalTec Ltd. and its subsidiaries (the "Company") is a cloud communications leader that is the inventor of the magicJack devices and other magicJack products and services. MAGICJACK VOCALTEC: 3 Merger-Related Securities Suits Dismissed --------------------------------------------------------------- magicJack VocalTec Ltd. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that three purported class action complaints related to the Company's merger agreement with B. Riley Financial, Inc., among others, have been dismissed pursuant to stipulations of dismissal filed with the Court. On March 8, 2018, Hunter Raines, a purported shareholder of the Company, filed a complaint titled Raines v. magicJack VocalTec Ltd. et al., Case 9:18-cv-80927, in the U.S. District Court for the Southern District of Florida. It alleged that the definitive proxy statement on Schedule 14A filed by the Company with the SEC on February 8, 2018 relating to the extraordinary general meeting of shareholders to consider and vote upon, inter alia, approval of the Agreement and Plan of Merger (the "Merger Agreement") by and among the Company, B. Riley Financial, Inc. and B. R. Acquisition Ltd. (the "Definitive Proxy Statement") contained materially false and misleading statements in violation of Section 14(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"). The complaint named as defendants the Company and the individual members of the Board of Directors. It also asserted claims against the directors pursuant to Section 20(a) of the Exchange Act on the theory that they were "control persons" of the Company. The complaint, which had been filed as a purported class action on behalf of Company shareholders, sought, among other things, damages and an injunction barring the shareholder vote that was scheduled for March 19, 2018. On March 9, 2018, two additional similar complaints were filed in the U.S. District Court for the Southern District of Florida. Plaintiff Melvyn Klein, a purported shareholder of the Company, filed a complaint titled Klein v. magicJack VocalTec, Ltd et al., Case 9:18-cv-80307, and plaintiff Morris Akerman, also a purported shareholder of the Company, filed a complaint titled Akerman v. magicJack VocalTec Ltd. et al., Case 9:18-cv-80310. Both complaints asserted that the Definitive Proxy Statement contained materially false and misleading statements in violation of Section 14(a) of the Exchange Act, both named as defendants the Company and the individual members of the Board of Directors, and both also asserted "control person" claims against the directors pursuant to Section 20(a) of the Exchange Act. Both purported to assert class action claims, and sought, among other things, damages and an injunction barring the shareholder vote. On March 13, 2018, the Company issued a supplement to the Definitive Proxy Statement in order to moot plaintiffs' claims. The Company denies the allegations in all three cases and denies that there are any material misrepresentations or omissions in the Definitive Proxy Statement. All three complaints have been dismissed pursuant to stipulations of dismissal filed with the Court. magicJack VocalTec Ltd. and its subsidiaries (the "Company") is a cloud communications leader that is the inventor of the magicJack devices and other magicJack products and services. MATIAN LAW: Ramirez & Anguiano Sue for Legal Malpractice -------------------------------------------------------- BYRON RAMIREZ, an individual; CLAUDIA ANGUIANO, an individual; DARIO ANGUIANO, an individual and others similarly situated, the Plaintiff, v. MATIAN LAW FIRM, A Professional Corporation, SHAWN MATIAN, an individual; and DOES 1 through 100, Inclusive, the Defendant, Case No. BC705962 (Cal. Super. Ct., May 14, 2018), alleges that the Defendant is involved in fraud, legal malpractice and preying on Latinos. According to the lawsuit, the firm is a "criminal enterprise" disguised as a law firm and is dedicated to committing fraud, preying on the Latino community, using non-lawyers to decide everything about thousands of cases, using non-lawyers on a sales team that are paid commission for overtly lying to clients and do anything at all to sign up clients, such as the Class Representatives, and commits wholesale deception and fraud, to pocket millions of dollars.[BN] Attorney for the Plaintiff & Class: Okorie Okorocha, Esq. THE OKOROCHA FIRM 117 E. Colorado Blvd. Suite 465 Pasadena, CA 91105 Telephone: (310) 497 0321 E-mail: 00@00ESQ.COM MCCLATCHY COMPANY: Appeal in Fresno Bee Lawsuit Still Pending ------------------------------------------------------------- The appeal of the plaintiffs in the case against The McClatchy Company and The Fresno Bee remains pending, according to McClatchy Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended April 1, 2018. The Company said, "In December 2008, carriers of The Fresno Bee filed a class action lawsuit against us and The Fresno Bee in the Superior Court of the State of California in Fresno County captioned Becerra v. The McClatchy Company ("Fresno case") alleging that the carriers were misclassified as independent contractors and seeking mileage reimbursement. In February 2009, a substantially similar lawsuit, Sawin v. The McClatchy Company, involving similar allegations was filed by carriers of The Sacramento Bee ("Sacramento case") in the Superior Court of the State of California in Sacramento County. The class consists of roughly 5,000 carriers in the Sacramento case and 3,500 carriers in the Fresno case. The plaintiffs in both cases are seeking unspecified restitution for mileage reimbursement. With respect to the Sacramento case, in September 2013, all wage and hour claims were dismissed and the only remaining claim is an equitable claim for mileage reimbursement under the California Civil Code. In the Fresno case, in March 2014, all wage and hour claims were dismissed and the only remaining claim is an equitable claim for mileage reimbursement under the California Civil Code. "The court in the Sacramento case trifurcated the trial into three separate phases: independent contractor status, liability and restitution. On September 22, 2014, the court in the Sacramento case issued a tentative decision following the first phase, finding that the carriers that contracted directly with The Sacramento Bee during the period from February 2005 to July 2009 were misclassified as independent contractors. We objected to the tentative decision but the court ultimately adopted it as final. In June 2016, The McClatchy Company was dismissed from the lawsuit, leaving The Sacramento Bee as the sole defendant. On August 30, 2017, the court issued a statement of decision ruling that the court would not hold a phase two trial but would, instead, assume liability from the evidence previously submitted and from the independent contractor agreements. We objected to this decision but the court adopted it as final. The third phase has not yet been defined. "The court in the Fresno case bifurcated the trial into two separate phases: the first phase addressed independent contractor status and liability for mileage reimbursement and the second phase was designated to address restitution, if any. The first phase of the Fresno case began in the fourth quarter of 2014 and concluded in late March 2015. On April 14, 2016, the court in the Fresno case issued a statement of final decision in favor of us and The Fresno Bee. Accordingly, there will be no second phase. The plaintiffs filed a Notice of Appeal on November 10, 2016. "We continue to defend these actions vigorously and expect that we will ultimately prevail. As a result, we have not established a reserve in connection with the cases. While we believe that a material impact on our condensed consolidated financial position, results of operations or cash flows from these claims is unlikely, given the inherent uncertainty of litigation, a possibility exists that future adverse rulings or unfavorable developments could result in future charges that could have a material impact. We have and will continue to periodically reexamine our estimates of probable liabilities and any associated expenses and make appropriate adjustments to such estimates based on experience and developments in litigation." McClatchy is a news and information publisher of publications such as the Miami Herald, The Kansas City Star, The Sacramento Bee, The Charlotte Observer, The (Raleigh) News & Observer, and the (Fort Worth) Star-Telegram. MCGOWAN ENTERPRISES: $1.1MM Attys' Fee Awarded in Fairway Suit -------------------------------------------------------------- In the case, FAIRWAY MEDICAL CENTER, L.L.C., v. McGOWAN ENTERPRISES, INC., DIVISION (3), Civil Action No. 16-3782 (E.D. La.), Magistrate Judge Daniel A. Knowles, III of the U.S. District Court for the Eastern District of Louisiana granted the Plaintiffs' counsel's Unopposed Motion for Approval of Attorneys' Fees and Expenses and for Service Award. The Plaintiff accused defendant of inundating its fax machine with junk faxes. After consenting to proceed before the undersigned, on Nov. 27, 2017, the parties filed an ex parte motion for preliminary approval of a settlement, which the Court granted the following day. The pleading informed the Court that the parties had settled for a lump sum in the amount of $3,250,00. On Dec. 13, 2017, the parties filed an ex parte motion to establish a qualified settlement fund, which the Court also granted the following day. Both parties then filed briefs in support of the final approval of class settlement. On March 20, 2018, the Court held a fairness hearing at which both counsel articulated the terms of the settlement. After proper notice, no class member had opted out of the class, and none had objected to the settlement. The Court therefore granted the motion for final approval of the class action settlement the same day. The counsel for the Plaintiffs now move for their attorneys' fees and costs, which, as noted, is unopposed by the Defendant. The Magistrate Judge finds that the class counsel's contract of representation signed by the Plaintiff provides for a one-third attorney fee award on all benefits. Thus he finds that the appropriate benchmark in the case is one-third. Having considered the Johnson v. Georgia Highway Express, Inc. factors carefully and the Plaintiff's briefing, he finds that no factor weighs in favor of a negative adjustment to the one-third percentage fee. The Plaintiff and its counsel argue only that the Johnson factors support an upward adjustment if the Court sets a lower fee. Because the Court has not, the Judge needs not consider this argument. The Magistrate Judge also finds that Fairway acted as the lone class representative. It also submitted itself to numerous meetings with class counsel during the pendency of the lawsuit. Most importantly, the Defendant offered Fairway $75,000 to settle the case at the outset of the matter. Fairway, however, declined this amount so that it could proceed with the class action and benefit the class. As such, Fairway played a significant role in achieving a substantial settlement that benefitted a large class of people and entities. The Magistrate Judge finds that the requested service award of $75,000 is reasonable and thus approves it. For the foregoing reasons, Magistrate Judge Knowles granted the Unopposed Motion for Approval of Attorneys' Fees and Expenses and for Service Award. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/3RB08L from Leagle.com. Fairway Medical Center, L.L.C., Plaintiff, represented by George Brian Recile, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP, Matthew Arthur Sherman, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP, Patrick R. Follette, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP, Preston Lee Hayes, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP & Ryan Paul Monsour, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP. McGowan Enterprises, Inc, doing business as Acute Care Pharmaceuticals, Defendant, represented by Stephen J. Herman -- sherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A. Davis -- ldavis@hhklawfirm.com -- Herman, Herman & Katz, LLC. MDL 2048: Court Denies Bid to File 1st Amended Antitrust Suits -------------------------------------------------------------- In the case, In re: COX ENTERPRISES, INC. SET-TOP CABLE TELEVISION BOX ANTITRUST LITIGATION. ANDREW ALWERT, Plaintiff, v. COX COMMUNICATIONS, INC., Defendant. STANLEY FELDMAN, Plaintiff, v. COX COMMUNICATIONS, INC., Defendant, Case No. 12-ML-2048-C (W.D. Okla.), Judge Robin J. Cauthron of the U.S. District Court for the Western District of Oklahoma denied the Plaintiffs' Motion for Leave to File Amended Complaints, and the Defendant conceded its Motion, in the Alternative, to Compel Arbitration and Stay Proceedings as moot. The Plaintiffs originally sought to pursue their anti-trust action against the Defendant as a national class action. The Court rejected that plan and that decision was affirmed on appeal. The Plaintiffs then elected to proceed with regional class actions. They elected to proceed with certain "bellwether" cases. These cases started with Plaintiff Richard Healy pursuing his action against the Defendant in Oklahoma. Following the conclusion of a jury trial in that case, the Court granted the Defendant's Fed. R. Civ. P. 50 motion and entered judgment in favor of Cox. That decision was affirmed on appeal. Plaintiffs Alwert and Feldman then sought leave to proceed with their state- based class actions. The Court determined that each Plaintiff had agreed to arbitrate any claims against the Defendant. That decision was affirmed on appeal. The Plaintiffs have now filed a Motion for Leave to File Amended Complaints seeking to name substitute plaintiffs to pursue class actions for the states of Arizona and Louisiana. The Defendant has objected to the Plaintiffs' Motion for Leave to Amend and argued that the proposed substitute plaintiffs are also subject to arbitration provisions and therefore the Court should deny the Motion for Leave to Amend as futile. The Plaintiffs seek leave to replace Mr. Feldman with Mr. Spencer and Mr. Gallop as proposed representatives for the Arizona class, and replace Mr. Alwert with Mr. Turner as proposed representative for the Louisiana class. In response to the Plaintiffs' Motion, the Defendant asserts that each of the proposed substitute plaintiffs has agreed to arbitrate his claims. The Plaintiffs do not contest that the arbitration provisions are applicable to Mr. Spencer or Mr. Gallop; rather, their only argument is that a recent decision from the Louisiana Supreme Court requires the Court to find that the arbitration provision applicable to Mr. Turner is an unenforceable contract of adhesion. The Plaintiffs argue that the arbitration provision was not contained in either the annual notices or other messages contained within Plaintiff Turner's bill. According to them, those documents simply informed customers of Cox of the general provisions or existence of the arbitration clause and directed them to the Cox website for the complete provisions of the arbitration clause. The Plaintiffs assert this process concealed the full details of the arbitration clause. Additionally, they argue that the general notification about arbitration was buried in a great deal of small print, which covered dozens of separate topics. However examination of the actual documents submitted to the Plaintiffs by Cox demonstrate the error in these arguments. After considering the physical characteristics of the arbitration clause and the distinguishing features of the arbitration clause from its surrounding text, as well as Mr. Turner's lack of objection to those terms, Judge Cauthron finds that Plaintiff Turner consented to the terms of the arbitration agreement. The Judge finds that the Plaintiffs do not offer any persuasive argument on the issue of the mutuality of the arbitration clause or the relative bargaining strength of the parties. Accordingly, she finds that the Plaintiffs' attempts to render the arbitration clause unenforceable based upon the Louisiana Supreme Court's decision in Duhon v. Activelaf, LLC is without merit and she finds that the arbitration clause was consented to by Mr. Turner and it is enforceable as to his claims against the Defendant. Alternatively, the Plaintiffs argue that the arbitration clause cannot be enforced because the class action that was brought by Mr. Alwert was pending at the time that he agreed to arbitrate his clause and thus the agreement to arbitrate would violate Rule 23 and the Court's stay. The Judge finds this argument without merit. As has been determined on prior occasions, Mr. Turner was not yet a member of the class at the time that the arbitration clause went into effect. As the Court has repeatedly held, until the class is finally certified, persons such as Mr. Turner are merely potential members and therefore none of the restrictions as to class members would have applied to him. Further, as the Defendant sets forth in its reply brief, recent U.S. Supreme Court decisions have made clear that claims such as Mr. Turner's cannot be removed from the reach of the Federal Arbitration Act by Rule 23. Enabling Act forbids interpreting Rule 23 to abridge, enlarge, or modify any substantive right. In short, nothing about Mr. Turner's presence as a putative class member prevented Cox from altering the terms of their agreement between it and those parties and therefore Cox was within its authority to create and impose the arbitration agreement. For these, Judge Cauthron denied as futile the Plaintiffs' Motion for Leave to File Amended Complaints as each of the proposed substitute plaintiffs is subject to arbitration. Because the Judge has rejected the Plaintiffs' Leave to Amend, the Defendant concedes that its Motion, in the Alternative, to Compel Arbitration and Stay Proceedings is moot. A full-text copy of the Court's March 27, 2018 Memorandum Opinion and Order is available at https://is.gd/2vQl0u from Leagle.com. Richard Healy, Plaintiff, represented by A. Daniel Woska -- AWoska@WoskaLawFirm.com -- Woska Law Firm PLLC, Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Cynthia G. St Amant -- C.StAmant@kanner-law.com -- Kanner & Whiteley LLC, pro hac vice, Garrett W. Wotkyns -- gwotkyns@schneiderwallace.com -- Schneider Wallace Cottrell Konecky, pro hac vice, Jason H. Kim -- jkim@schneiderwallace.com -- Schneider Wallace Cottrell Brayton & Konecky LLP, pro hac vice, Joe R. Whatley, Jr. -- jwhatley@whatleykallas.com -- Whatley Kallas LLP, pro hac vice, Michael J. Blaschke, Michael J. Blaschke PC, Rachel L. Mor, Rachel Lawrence Mor Attorney at Law, S. Randall Sullivan, Randall Sullivan PC, Todd M. Schneider -- tschneider@schneiderwallace.com --Schneider Wallace Cottrell Brayton Konecky, pro hac vice, Henry C. Quillen -- hquillen@whatleykallas.com -- Whatley Kallas LLP, pro hac vice, Joshua G. Konecky -- jkonecky@schneiderwallace.com -- Schneider Wallace Cottrell Brayton Konecky, Kyle G. Bates -- kbates@schneiderwallace.com -- Schneider wallace Cottrell Konecky Wotkyns LLP & William T. Brown -- tbrown@whatleykallas.com -- Whatley Drake & Kallas LLC. Beverly Uhl, Plaintiff, represented by A. Daniel Woska, Woska Law Firm PLLC, Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Cynthia G. St Amant, Kanner & Whiteley LLC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky, pro hac vice, Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP, pro hac vice, Joe R. Whatley, Jr., Whatley Kallas LLP, pro hac vice, Joseph C. Peiffer, Fishman Haygood Phelps Walmsley Willis & Swanson LLP, pro hac vice, Michael J. Blaschke, Michael J. Blaschke PC, Rachel L. Mor, Rachel Lawrence Mor Attorney at Law, S. Randall Sullivan, Randall Sullivan PC, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky, pro hac vice, Wilfred K. Wright, Jr., Wright Law PC & Joshua G. Konecky, Schneider Wallace Cottrell Brayton Konecky. Todd Keitlen, Plaintiff, represented by A. Daniel Woska, Woska Law Firm PLLC, Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Cynthia G. St Amant, Kanner & Whiteley LLC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky, pro hac vice, Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP, pro hac vice, Joe R. Whatley, Jr., Whatley Kallas LLP, pro hac vice, Joseph C. Peiffer, Fishman Haygood Phelps Walmsley Willis & Swanson LLP, pro hac vice, Michael J. Blaschke, Michael J. Blaschke PC, Rachel L. Mor, Rachel Lawrence Mor Attorney at Law, S. Randall Sullivan, Randall Sullivan PC, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky, pro hac vice, Wilfred K. Wright, Jr., Wright Law PC & Joshua G. Konecky, Schneider Wallace Cottrell Brayton Konecky. George Lepre, on behalf of himself, and all others similarly situated, Plaintiff, represented by A. Daniel Woska, Woska Law Firm PLLC, Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Cynthia G. St Amant, Kanner & Whiteley LLC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky, pro hac vice, Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP, pro hac vice, Joe R. Whatley, Jr., Whatley Kallas LLP, pro hac vice, Joseph C. Peiffer, Fishman Haygood Phelps Walmsley Willis & Swanson LLP, pro hac vice, Michael J. Blaschke, Michael J. Blaschke PC, Rachel L. Mor, Rachel Lawrence Mor Attorney at Law, S. Randall Sullivan, Randall Sullivan PC, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky, pro hac vice, Wilfred K. Wright, Jr., Wright Law PC & Joshua G. Konecky, Schneider Wallace Cottrell Brayton Konecky. Andrew Alwert, Plaintiff, represented by Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Benjamin D. Reichard -- Benjamin D. Reichard -- Fishman Haygood Phelps Walmsley Willis & Swanson LLP, pro hac vice, Cynthia G. St Amant, Kanner & Whiteley LLC, pro hac vice, Gregory Pius DiLeo, Law Office of Gregory P DiLeo, pro hac vice, Jeffrey P. Berniard, Berniard & Wilson LLC, pro hac vice, Joseph C. Peiffer, Fishman Haygood Phelps Walmsley Willis & Swanson LLP, pro hac vice, Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP, Joshua G. Konecky, Schneider Wallace Cottrell Brayton Konecky & Michael J. Blaschke, Michael J. Blaschke PC. Stanley Feldman, Plaintiff, represented by Allan Kanner, Kanner & Whiteley LLC, pro hac vice, Cynthia G. St Amant, Kanner & Whiteley LLC, pro hac vice, Garrett W. Wotkyns, Schneider Wallace Cottrell Konecky, pro hac vice, Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP, pro hac vice, Joe R. Whatley, Jr., Whatley Kallas LLP, pro hac vice, John Dean Curtis, II, Burch & Cracchiolo PA, Michael C. McKay, Schneider Wallce Cottrell Brayton & Konecky, Todd M. Schneider, Schneider Wallace Cottrell Brayton Konecky, pro hac vice, Joshua G. Konecky, Schneider Wallace Cottrell Brayton Konecky & Michael J. Blaschke, Michael J. Blaschke PC. Sean P Feeney, Louis W Grande & April Bagwell, Plaintiffs, represented by Jason H. Kim, Schneider Wallace Cottrell Brayton & Konecky LLP. Cox Communications Inc, Defendant, represented by Bruce D. Sokler -- BDSokler@mintz.com -- Mintz Levin Cohn Ferris Glovsky & Popeo, pro hac vice, D. Kent Meyers -- kent.meyers@crowedunlevy.com -- Crowe & Dunlevy, Ewell E. Eagan, Jr. -- eeagan@gamb.law.com -- Gordon Arata McCollam Duplantis & Eagan, Helen G. Guyton, Mintz Levin Cohn Ferris Glovsky & Popeo, pro hac vice, Martin E. Landrieu -- mlandrieu@gamb.law.com -- Gordon Arata McCollam Duplantis & Eagan, Matthew D. Golish, Gonzalez Saggio & Harlan, Nathan R. Hamler, Mintz Levin Cohn Ferris Glovsky and Popeo PC, Phillip J. Antis, Jr. -- pantis@gamb.law.com -- Gordon Arata McCollam Duplantis & Eagan, Robert G. Kidwell -- RGKidwell@mintz.com -- Mintz Levin Cohn Ferris Glovsky & Popeo, pro hac vice, Vincent T. Norwillo -- vtn@norwillolaw.com -- Gonzalez Saggio & Harlan, Adam S. Sieff -- adam.sieff@lw.com -- Latham & Watkins, Alfred C. Pfeiffer, Latham & Watkins, Allyson M. Maltas -- allyson.maltas@lw.com -- Latham & Watkins, Jason L. Daniels -- jason.daniels@lw.com -- Latham & Watkins, Jennifer L. Giordano -- jennifer.giordano@lw.com -- Latham & Watkins, Margaret M. Zwisler -- margaret.zwisler@lw.com -- Latham & Watkins, pro hac vice, Mary H. Tolbert -- molly.tolbert@crowedunlevy.com -- Crowe & Dunlevy & Matthew A. Cohen -- mcohen@crowell.com -- Mintz Levin Cohn Ferris Glovsky & Popeo. MEN'S WEARHOUSE: Smith Sues over $20 Late Return Fees ----------------------------------------------------- ANTHONY SMITH, individually and on behalf of all others similarly situated, the Plaintiff, v. THE MEN'S WEARHOUSE, INC., and TAILORED BRANDS, INC., the Defendants, Case No. 3:18-cv-02840 (N.D. Cal., May 14, 2018), seeks to enjoin enforcement and threat of collection of late fees from the rental of garments. The Plaintiff and the members of the proposed plaintiff class are individuals who are or were Defendants' customers who used Defendants' services in the State of California, and who paid Late Fees in connection with services rendered in the State of California. The Late Fees have generated substantial revenues and profits for Defendants. Men's Wearhouse provides a large range of clothing, shoes, and accessories for rent at its retail locations. Customers are able to rent, inter alia, suits, tuxedos, vests, shirts, shoes, pants, ties, and other clothes and accessories. Whenever a customer wishes to rent any item from Men's Wearhouse, the customer is required to enter into a rental agreement with Men's Wearhouse. The Rental Agreement imposes late return fees in the amount of $20 whenever a customer returns any garment after the scheduled due date. Men's Wearhouse's provision of rental services in California is and at all times relevant hereto has been subject to Defendants' Rental Agreement. The Rental Agreement remains in effect as of the date of this Complaint. The Rental Agreement provides that Men's Wearhouse will impose a late return fee of $20 per day. The Rental Agreement states that the "Late fee will be accrued daily and charged in a lump sum, upon the receipt of the late garments."[BN] Attorneys for Plaintiff: L. Timothy Fisher, Esq. Joel D. Smith, Esq. Yeremey O. Krivoshey, Esq. Scott A. Bursor, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300 4455 Facsimile: (925) 407 2700 E-mail: ltfisher@bursor.com jsmith@bursor.com ykrivoshey@bursor.com scott@bursor.com - and - Frank S. Hedin, Esq. David W. Hall, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94111 Telephone: (415) 766 3534 Facsimile: (415) 402 0058 E-mail: fhedin@hedinhall.com dhall@hedinhall.com MICROSOFT CORP: Portions of "Moussouris" Class Cert. Bid Unsealed ----------------------------------------------------------------- In the case, Moussouris v. Microsoft, the Court has unsealed portions of Plaintiffs' motion for class certification, expert reports, and other supporting documents. The brief and expert reports can be downloaded here. Among the documents the Court unsealed, is a set of logs of internal gender complaints from 2010 to 2016 escalated to Microsoft's Employee Relations Investigation Team. The logs document the type of gender complaint and its resolution. Plaintiffs filed a reply brief in support of their motion for class certification on February 9, 2018. Plaintiffs filed three expert reports in support of their reply brief. Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the case Moussouris v. Microsoft, remains pending. Current and former female Microsoft employees in certain engineering and information technology roles brought this class action in federal court in Seattle in 2015, alleging systemic gender discrimination in pay and promotions. The plaintiffs moved to certify the class in October 2017. Microsoft filed an opposition in January 2018, attaching an expert report showing no statistically significant disparity in pay and promotions between similarly situated men and women. The plaintiffs' reply was due in February 2018. Additional information on the case is available at: https://microsoftgendercase.com/ Microsoft Corporation develops, licenses, and supports software products, services, and devices worldwide. The company is based in Redmond, Washington. MILLENNIUM HEALTH: Bid to Certify "Mauthe" Suit Denied ------------------------------------------------------ In the lawsuit styled ROBERT W. MAUTHE, M.D., P.C., individually and on behalf of all others similarly situated, the Plaintiff, v. MILLENNIUM HEALTH LLC, the Defendant, Case No. 5:18-cv-01903-EGS (E.D. Pa.), the Hon. Judge Edward G. Smith entered an order denying a motion for class certification without prejudice. After the complaint has been served upon the defendant and an attorney has entered an appearance on behalf of the defendant, the court will hold a telephone conference to establish a schedule with respect to class action discovery and certification, the Court says. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Fj3umQ3t MULTICARE HEALTH: "Johnson" Suit Moved to W.D. Washington --------------------------------------------------------- The class action lawsuit titled Raleigh Johnson and Jennifer Howse, on their own behalf and on behalf of all others similarly situated, the Plaintiffs, v. MultiCare Health System, the Defendant, a Washington non-profit corporation, Case No. 18- 00002-06456-8, was removed from the Pierce County Superior Court, to the U.S. District Court for the Western District of Washington (Tacoma) on May 15, 2018. The District Court Clerk assigned Case No. 3:18-cv-05384 to the proceeding. MultiCare Health System provides hospital, clinic, primary care, specialty, emergency and urgent care health care services across Washington state.[BN] The Plaintiffs are represented by: Greg Alan Wolk, Esq. Hardeep S Rekhi, Esq. REKHI & WOLK, P.S. 529 Warren Avenue N., Suite 201 Seattle, WA 98109 Telephone: (206) 388 5887 Facsimile: (206) 577 3924 E-mail: greg@rekhiwolk.com hardeep@rekhiwolk.com - and - Kevin Paul Smith, Esq. DEFIANCE LAW PLLC 1115 Tacoma Avenue South Tacoma, WA 98402 Telephone: (253) 507 4769 E-mail: k.smith@defiance.law Attorneys for Defendant: Ryan R Jones, Esq. Timothy J O'Connell, Esq. Christopher T Wall, Esq. STOEL RIVES (WA) 600 University St., Suite 3600 Seattle, WA 98101-3197 Telephone: (206) 624 0900 E-mail: ryan.jones@stoel.com tim.oconnell@stoel.com christopher.wall@stoel.com NASSAU COUNTY, NY: Nov. 24 Claims Filing in Strip Search Cases -------------------------------------------------------------- In the case, In re NASSAU COUNTY STRIP SEARCH CASES, Case No. 99- CV-2844 (DRH) (E.D. N.Y.), Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York granted the Plaintiffs' application to extend the time to file claims to Nov. 24, 2018. Judge Hurley addresses (1) the Plaintiffs' application to extend the deadline for certain class members to file claims from Feb. 15, 2018 to Nov. 24, 2018 and for assistance in requiring the County to pay the Administrator's long-standing invoices forthwith; and (2) the Defendants' request to permit payment of the claims administrator's invoices out of the funds deposited with the Court and for the return of $2 million of the funds on deposit to the County. The deadline to file claims should be extended for the class members who were mailed notice in the two most recent 2017 mailings, the Plaintiffs argue, to permit more of those class members who, through no fault of their own, only recently received notice of the lawsuit and of their right to recover for the violation of their state constitutional rights. The Defendants oppose the application asserting (1) it will prejudice them as the unclaimed monies from the settlement fund would revert to the County and the parties had agreed to the date for submission of claims; (2) the delay is sending notices to the class members and obtaining updated addressed is attributable to the administrator and the class counsel; and (3) the Plaintiffs only offer speculations as to why class members may have delayed in submitting their claims. In reply, the Plaintiffs assert no prejudice will occur as an extension of time will not increase the amount of the Defendants' liability set out in the judgment entered in this case; a blanket extension will decrease the amount of litigation as excusable neglect issues will not have to be individually determined; and the actions of the administrator and the counsel were reasonable and not dilatory. Judge Hurley explains that as framed by the parties, whether the time to file claims should be extended should be analyzed using the four elements for determining excusable neglect under Rule 6(b) of the Federal Rules of Civil Procedure as set forth in Pioneer Investment Serv. Co. v. Brunswick Assoc. Ltd. P'ship. Those elements are: (1) danger of prejudice to the adversary, (2) length of the delay and its potential impact on judicial proceedings, (3) reason for the delay and whether it was within the reasonable control of the party seeking relief, and (4) whether the party seeking relief acted in good faith. He finds that the application of the Pioneer factors favors the granting of the requested extension of time. Accordingly, he will grant the Plaintiffs' application to extend the time for the filing of claims to Nov. 24, 2018 for the class members who were mailed notices in August and November 2017. While he understands the Plaintiffs' frustration with what they perceive to be red tape, the Judge is also cognizant of the County's need to ensure only proper invoices are paid. On balance and in an effort to ensure that the claims administrator receives the payment due it, the County's application to have the currently pending, unpaid invoices of the claims administrator paid out of the funds on deposit with the Court is granted. Finally, given that there are only slightly more than 50 disputed claim, withdrawing $2 million and returning it to the County will not endanger recovery of any of the disputed claim. And, it would appear that returning said funds would still leave adequate funds on deposit to pay any more timely filed claims, even with the granting of an additional nine months to file claims and the payment of the currently outstanding invoices of the class administrator out of these funds. Lastly, the Plaintiffs do not object to granting the requested relief. Thus the application will be granted. For these reasons, Judge Hurley granted the Plaintiffs' application to extend the time to file claims to Nov. 24, 2018, as are the County's applications to have the currently pending invoices of the claims administrator paid out of the funds on deposit with the Court and for the return to the County of $2 million of the funds on deposit. The County will file, under cover of letter, proposed orders for each of the two foregoing distributions within 10 days of the date of the Order. A full-text copy of the Court's March 27, 2018 Memorandum & Order is available at https://is.gd/341TCx from Leagle.com. Francis O'Day, Plaintiff, represented by Robert L. Herbst, Herbst Law PLLC, Mariann Meier Wang -- mwang@chwllp.com -- Cuti Hecker Wang LLP & Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady PC. John Iaffaldano, Plaintiff, represented by Martin E. Restituyo -- restituyo@restituyolaw.com -- Law Offices of Martin E. Restituyo, P.C., Robert L. Herbst, Herbst Law PLLC & Jeffrey G. Smith, Wolf Haldenstein Adler Freeman & Herz. Gardy Augustin, Consol Plaintiff, represented by Robert L. Herbst, Herbst Law PLLC & Jonathan C. Moore, Beldock Levine & Hoffman LLP. Marilyn Bloch, Intervenor Plaintiff, represented by Robert L. Herbst, Herbst Law PLLC. Nassau County Sheriff's Department, Division of Correction, Joseph Jablonsky, Nassau County Sheriff & Nassau County, Defendants, represented by Liora M. Ben-Sorek, Nassau County Attorney's Office, Robert F. Van Der Waag, Nassau County Attorney Office, Christine Ann Lobasso, Office of the Nassau County Attorney, Dennis J. Saffran, Nassau County Attorney's Office, Gerald C. Waters, Jr., Meltzer Lippe Goldstein & Breitstone, LLP & Joseph Nocella, Nassau County Attorney's Office. Jane/John Does 1-200, Defendant, represented by Dennis J. Saffran, Nassau County Attorney's Office, Gerald C. Waters, Jr., Meltzer Lippe Goldstein & Breitstone, LLP & Joseph Nocella, Nassau County Attorney's Office. New York State Office of Temporary and Disability Assistance, New York State Office of Children and Family Services & New York State Department of Health, Intervenor Defendants, represented by Matthew William Grieco, Office of the NYS Attorney General Division Of Appeals & Opinions. Newsday LLC, Interested Party, represented by David A. Schulz -- schulzd@ballardspahr.com -- Levine Sullivan Koch & Schulz LLP. United States Department of Agriculture & United States Department of Health and Human Services, Intervenors, represented by Mary M. Dickman, United States Attorneys Office. Stuart Moskowitz, Plaintiff, represented by Robert L. Herbst, Herbst Law PLLC & Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady PC. NISSAN NORTH: 6-Mo. Extension in "Tamara" Discovery Deadlines ------------------------------------------------------------- Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington granted the parties' stipulation to extend the deadlines in the case, TAMARA LOHR and RAVIKIRAN SINDOGI, on behalf of themselves and all others discovery similarly situated, Plaintiffs, v. NISSAN NORTH AMERICA, INC., and NISSAN MOTOR CO., LTD., Defendants, Case No. C16-1023 RSM (W.D. Wash.). On July 16, 2017, the Court adopted the case schedule the parties proposed in their Joint Status Report. The Court's Scheduling Order set deadlines for class certification briefing and expert disclosure and depositions, beginning with a May 25, 2018, deadline for Plaintiffs to file a motion for class certification and serve expert disclosures and reports. The proposed class action involves allegations that panoramic sunroofs installed in seven models of Nissan vehicles suffer from a uniform defect. The parties sought to streamline and reduce the cost of discovery and engaged in extensive negotiations concerning the scope of discovery, search terms and search-term proximity for production of electronically stored information ("ESI"), and the terms of the Stipulated Protective Order and Order Regarding Discovery of ESI. The parties met and conferred on numerous occasions over the course of several months and were able to narrow their disputes to a single issue: whether the Defendant could redact certain unprivileged information prior to production. On Jan. 19, 2018, the parties filed their Proposed Stipulated Protective Order, and Stipulation and Proposed Order regarding the Discovery of ESI, carving out the issue of redaction for court resolution. On Jan. 23, 2018, the parties jointly requested an expedited resolution of the remaining dispute concerning pre-production redaction. The Court ruled on the issue during a telephonic hearing conducted on Feb. 1, 2018. With the deadlines for class certification quickly approaching, significant discovery remains to be completed despite the parties' cooperation and diligence. The parties will continue to work diligently and cooperatively to complete document discovery, schedule depositions, and resolve any disputes that may arise promptly and without court intervention. A six-month extension of the deadlines in the matter would facilitate the coordination of discovery by more closely aligning the case schedule with Johnson. For these reasons, the parties stipulated and agreed, and Judge Martinez approved, that whereas, significant discovery is still required for the parties to address class certification, and given the parties' desire to coordinate discovery with Johnson, the deadlines in the matter are extended as set forth: a. Deadline to file Motion for Class Certification and serve Plaintiffs expert disclosures and reports - May 25, 2018 to Dec. 3, 2018 b. Deadline for Plaintiff to produce experts for deposition - July 6, 2018 to Jan. 11, 2019 c. Deadline to file opposition to Motion for Class Certification and serve NNAs expert disclosures and reports - Aug.t 6, 2018 Feb. 13, 2019 d. Deadline for NNA to produce experts for deposition - Aug. 27, 2018 March 6, 2019 e. Deadline to file reply regarding Motion for Class Certification - Sept. 10, 2018 to March 18, 2019 A full-text copy of the Court's March 28, 2018 Order is available at https://is.gd/9gKDos from Leagle.com. Tamara Lohr, on behalf of herself and all others similarly situated & Ravikiran Sindogi, Plaintiffs, represented by Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Charles J. Crueger, CRUEGER DICKINSON LLC, pro hac vice, Edward A. Wallace -- eaw@wexlerwallace.com -- WEXLER WALLACE LLP, pro hac vice, Erin Dickinson -- ekd@cruegerdickinson.com -- CRUEGER DICKINSON LLC, pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- GREG COLEMAN LAW PC, pro hac vice, Lisa A. White -- isa@gregcolemanlaw.com -- GREG COLEMAN LAW PC, pro hac vice, Mark E. Silvey, GREG COLEMAN LAW PC, pro hac vice, Amanda M. Steiner -- ASteiner@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Benjamin Drachler -- bdrachler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Nissan North America, Inc, Defendant, represented by Amir Nassihi -- anassihi@shb.com -- SHOOK, HARDY & BACON LLP, pro hac vice, Andrew L. Chang -- achang@shb.com -- SHOOK, HARDY, & BACON LLP, pro hac vice, Holly Pauling Smith -- hpsmith@shb.com -- SHOOK HARDY & BACON, pro hac vice, William R. Sampson -- wsampson@shb.com -- SHOOK HARDY & BACON LLP, pro hac vice & Heather A. Hedeen -- hhedeen@shb.com -- SHOOK HARDY & BACON. OHIO REGIONAL SEWER: "Rice" Suit Seeks Overtime Pay under FLSA -------------------------------------------------------------- JOSH RICE, on behalf of himself and all others similarly situated, the Plaintiff, v. NORTHEAST OHIO REGIONAL SEWER DISTRICT, the Defendant, Case No. 1:18-cv-01100-DCN (N.D. Ohio, May 14, 2018), seeks to recover overtime pay under the Fair Labor Standards Act. According to the complaint, the Defendant required Plaintiff and similarly situated workers to complete pre-shift work that related to their jobs without pay. Pursuant to the District's uniform policies and practices, police officers are considered to be working as soon they punch in, even if they punch in before the start of their scheduled shift scheduled. Police officers do not, however, get paid any amount until the start of their scheduled shift. Police officers not in uniform and completely ready for work at the time they punch in, even if before the start of their scheduled shift are subject to discipline. Police officers are required to be in uniform and ready to work from punch in until punch-out. The Plaintiff and the Putative Class regularly work hours in excess of 40 in a workweek. The Defendant failed to pay Plaintiff for all hours work.[BN] Counsel for Plaintiff: Hans A. Nilges, Esq. Shannon M. Draher, Esq. Nilges Draher LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470 4428 Facsimile: (330) 754 1430 E-mail: sdraher@ohlaborlaw.com hans@ohlaborlaw.com OSAKA STEAKHOUSE: "Zhang" Suit Seeks Unpaid Wages under FLSA ------------------------------------------------------------ Jian Zhang and En Rong Zhang on behalf of themselves and all other employees similarly situated, the Plaintiff, v. Osaka Steakhouse & Sushi, Inc. d/b/a SHU Chinese Restaurant, Chun Chen, "Jane" (first name unknown) Chen, "John" (first name unknown) Chen No. 1 and "John" (first name unknown) Chen No. 2, the Defendants, Case No. 1:18-cv-00577-DNH-DJS (N.D.N.Y., May 15, 2018), seeks to recover unpaid minimum wages, overtime wages, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs pursuant to New York Labor Law and the Fair Labor Standards Act. According to the complaint, the Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiffs, overtime compensation for all hours worked over 40 each workweek. Osaka Sushi Steak House is Sushi & Sashimi and Hibachi Japanese restaurant in Bushnell.[BN] The Plaintiff is represented by: Phillip H. Kim, Esq. HANG & ASSOCIATES, PLLC. 136-20 38th Ave., Suite 10G Flushing, NY 11354 Telephone: (718) 353 8588 E-mail pkim@hanglaw.com PECO FOODS: Class in "Nicks" Suit Has Conditional Certification --------------------------------------------------------------- In the case, JIMMY R. NICKS and WILLIAM MCNEAL, individually and on behalf of all persons similarly situated, Plaintiffs, v. PECO FOODS, INC., et al., Defendants, Case No. 7:16-CV-01057-LSC (N.D. Ala.), Judge L. Scott Coogler of the U.S. District Court for the Northern District of Alabama, Western Division, granted the Plaintiffs' Amended Motion for Conditional Certification and to Facilitate Notice Pursuant to 29 U.S.C Section 216(b). The Plaintiffs filed the action against the Defendants under the Fair Labor Standards Act on June 29, 2016. Peco is a vertically integrated chicken processing and packing company with facilities in various locations across Mississippi, Alabama, Arkansas and Missouri, and is headquartered in Tuscaloosa, Alabama. Since approximately 2011, Peco has used independent contractors for catching chickens for five out of its six complexes. The two named Plaintiffs were employed via independent contractor Armco at Peco's Gordo Complex and/or Sebastopol Complex. Of the 44 opt-in forms provided as of the date of the Plaintiffs' motion for certification, including those of Nicks and McNeal, nearly all have been from workers employed by Armco at either the Gordo or Sebastopol Complex. Peco operates six Live Operations complexes located in Alabama, Mississippi, and Arkansas, all of which oversee the supply of broiler chickens to Peco's processing facilities. The putative class members' work involves the capture of chickens to supply to the Peco facilities. The Plaintiffs are hired by independent contractors and placed on live-haul crews of approximately 10 to 12 workers, generally including eight to nine catchers, one or two forklift operators, and crew leader. The Plaintiffs and the putative class members travel to the farms to capture chickens and place them in cages for transport to Peco's poultry processing plants at each of the Peco Complexes. On a typical shift, they estimate between 36,000 and 42,000 chickens are caught by one live-haul crew. Crews are transported from their homes to motels or trailer parks, where they stay the nights during the workweek and also are transported between motels and trailer parks and the farms where they perform Peco's chicken catching, at times travelling an hour or more. Plaintiffs aver that Peco oversees the live-haul crews' work in addition to dictating their schedules as well as their daily activities and working conditions. The individuals in the live- haul crews perform substantially the same work tasks at each Peco facility. While the number of hours worked or chickens harvested may vary slightly from day to day, the duties performed by each live-haul crew are alleged to be almost indistinguishable no matter their third-party contractor or farm location. As such, the Plaintiffs aver that all crew members were subject to the same work environment, reporting structure, and Peco policies and practices. The Plaintiffs allege Peco paid each contractor on a piece rate basis, and the independent contractors in turn failed to pay for overtime hours or time spent waiting for work to become available when calculating remittance they were due. Before the Court is the Plaintiffs' Amended Motion for Conditional Certification and to Facilitate Notice Pursuant to 29 U.S.C Section 216(b). They argue that the Court should allow them to issue notice to all individuals who worked as members of live-haul, chicken-catching crews that caught Peco chickens at any time between three years prior to the date that the Court issues an Order granting Conditional Certification and the present, and who were paid via a third-party contractor that entered into an Independent Contractor Service Agreement with Peco that did not provide for the payment of wait time or overtime compensation by Peco. Judge Coogler finds that the Plaintiffs have established a reasonable basis for the allegation that a class of similarly situated persons exists. Therefore, he granted their Motion and conditionally certified an opt-in class consisting of all current and former hourly employees of Peco whom Peco employed at any time between three years prior to the date of the Opinion. The Judge directed the parties to confer and jointly file with the Court a proposed collective action notice and plan for facilitating notice and the parties are to proceed through discovery accordingly. An Order consistent with the Memorandum of Opinion will be entered contemporaneously with it. A full-text copy of the Court's March 27, 2018 Memorandum of Opinion is available at https://is.gd/o8IM9J from Leagle.com. Jimmy R Nicks & William McNeal, individually and on behalf of all persons similarly situated, Plaintiffs, represented by Alexandra Piazza -- apiazza@bm.net -- BERGER & MONTAGUE PC, pro hac vice, Camille Fundora -- cfundora@bm.net -- BERGER & MONTAGUE PC, pro hac vice, David A. Hughes -- dhughes@hardinhughes.com -- HARDIN & HUGHES LLP, Nicole Self-Drake Hughes -- nhughes@hardinhughes.com -- HARDIN & HUGHES LLP, Sarah R. Schalman-Bergen -- sschalman- bergen@bm.net -- BERGER & MONTAGUE PC, pro hac vice & Shanon J. Carson -- scarson@bm.net -- BERGER & MONTAGUE PC. Peco Foods Inc, Defendant, represented by Christopher R. Fontan - - cfontan@brunini.com -- BRUNINI GRANTHAM & HEWES, Lauren O. Lawhorn -- llawhorn@brunini.com -- BRUNINI GRANTHAM GROWER & HEWES PLLC, Scott F. Singley -- ssingley@brunini.com -- BRUNINI GRANTHAM GROWER & HEWES PLLC & Stephen J. Carmody -- scarmody@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES PLLC, pro hac vice. Armco Services Inc, Defendant, represented by Joseph L. Adams -- ojoadams@joneswalker.com -- JONES WALKER LLP, pro hac vice, Lindsay T. Dowdle -- dowdle@joneswalker.com -- JONES WALKER LLP, pro hac vice & Mac B. Greaves -- mgreaves@joneswalker.com -- JONES WALKER LLP. PETMED EXPRESS: Animal Medical Center Suit Voluntarily Dismissed ---------------------------------------------------------------- PetMed Express, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the case entitled, Animal Medical Center of Orland Park, Inc. v. PetMed Express, Inc., d/b/a 1-800- PetMeds, and John Does 1-10, has been voluntarily dismissed by the plaintiffs, with prejudice. In June 2017, the Company was served with a lawsuit by a veterinary clinic, styled Animal Medical Center of Orland Park, Inc. v. PetMed Express, Inc., d/b/a 1-800-PetMeds, and John Does 1-10, Circuit Court of Cook County, Illinois, Chancery Division, 2017-CH-07347. The plaintiff alleged that the Company was sending unsolicited advertisements via facsimile in violation of the Telephone Consumer Protection Act, and also seeks class action status. On November 13, 2017, this matter was voluntarily dismissed by the plaintiffs, with prejudice. PetMed Express, Inc. and its subsidiaries, doing business as 1- 800-PetMeds, operates as a pet pharmacy in the United States. The company markets prescription and non-prescription pet medications, health products, and supplies for dogs and cats to retail customers. The company is based in Delray Beach, Florida. PETMED EXPRESS: Class Suit in Florida Voluntarily Dismissed ----------------------------------------------------------- PetMed Express, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 31, 2017, that the plaintiffs voluntarily dismissed the consolidated lawsuit they filed in United States District Court for the Southern District of Florida without prejudice. On August 25, 2017 and September 7, 2017, shareholders filed putative securities class action lawsuits in the United States District Court for the Southern District of Florida, which were subsequently consolidated, against PetMed Express, Inc. (the "Company") and the Company's principal executive officers, one of whom is also a director. Relying exclusively on a false and defamatory, anonymous "report" posted on August 23, 2017 on the Aurelius Value website the plaintiffs alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Company has always denied and continues to deny the plaintiffs' unfounded accusations. The plaintiffs investigated their claims, and on or about January 19, 2018, the plaintiffs voluntarily dismissed the consolidated lawsuit without prejudice. PetMed Express, Inc. and its subsidiaries, doing business as 1- 800-PetMeds, operates as a pet pharmacy in the United States. The company markets prescription and non-prescription pet medications, health products, and supplies for dogs and cats to retail customers. The company is based in Delray Beach, Florida. PINNACLE FOODS: Court Denies Bid to Dismiss "Korte" Suit -------------------------------------------------------- Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois denied the Defendant's Motion to Dismiss the case, AARON KORTE, individually and on behalf of others similarly situated, Plaintiff, v. PINNACLE FOODS GROUP, LLC, Defendant, Case No. 17-CV-199-SMY-SCW (S.D. Ill.). Korte filed the putative class action against Pinnacle in Illinois state court. Pinnacle subsequently removed the case to the Court. The case involves a line of salad dressings sold by Pinnacle under the label "Wish-Bone(R) E.V.O.O. Dressing-Made With Extra Virgin Olive Oil". The Plaintiff alleges that the Defendant promotes, markets and sells its E.V.O.O. line of dressings in such a manner to deceive the consumer into purchasing what he or she believes is a true 100% E.V.O.O. product. In particular, he alleges that Pinnacle's naming and marketing of the dressings in question was deceptive because although they are made with extra virgin olive oil (sometimes abbreviated E.V.O.O. or EVOO), they are comprised mainly of water and cheap soybean oil, and not premium E.V.O.O. The Plaintiff also alleges that Pinnacle made several statements in a press release accompanying the introduction of the dressing that were misleading as to the EVOO content (and therefore product quality). He further alleges that Pinnacle charged 25% more, on average, for the products than similar salad dressings on the basis that it was made with extra virgin olive oil. The Plaintiff, a Missouri citizen, purchased the product in the Fall of 2016 from a Schnuck's Market in St. Clair County, Illinois. The Plaintiff alleges that the products violate the Illinois Consumer Fraud & Deceptive Business Practices Act ("IFCA")(Count I), the Missouri Merchandising Practices Act ("MMPA")(Count II), and that the money realized by the Defendant as a result of the alleged deceptive practices constitutes unjust enrichment (Count III). The Plaintiff seeks class certification for consumers who bought the product from Dec. 19, 2013 onward. The Defendant moves to dismiss each Count of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, as well as under F.R.C.P. 9(b) for failure to plead fraud with adequate particularity. Pinnacle first argues that the Plaintiff's ICFA claim is preempted by federal law, pointing to a provision of the Federal Food, Drug, and Cosmetic Act ("FDCA"),added by the Nutrition Labeling and Education Act of 1990 ("NLEA"). Pinnacle argues that the Plaintiff's ICFA claims are subject to a statutory exception. Specifically, Section 10b provides that the statute does not apply to actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States. Pinnacle argues that because the Plaintiff purchased the product in Illinois, there are no ties between the allegedly fraudulent transactions and Missouri. Next it argues that the Complaint does not meet the heightened pleading standard for allegations of fraud under F.R.C.P. 9(b). Finally, it argues that the Plaintiff's unjust enrichment claim fails because it cannot stand in the absence of the ICFA (or presumably MMPA) claim. Judge Yandle finds that the Defendant cites to the Seventh Circuit's Opinion in Turek v. Gen. Mills, Inc. in support of its preemption argument. But Turek is readily distinguishable, as it involved a claim where the plaintiff sought to add disclaimers to labels of snack bars containing processed (as opposed to natural) dietary fiber. Fiber is one of the nutrients specifically subject to Section 343(q), and therefore does fall under specific FDCA labeling requirements for nutrient claims. In the absence of a nutrient claim, the regulations cited by Defendant do not apply. As such, there can be no preemption of differing state law requirements. The Plaintiff's ICFA claims are therefore not preempted. Next, the Judge finds that the actual damage element of an ICFA claim requires that the plaintiff suffer "actual pecuniary loss." Here, the Plaintiff has pled that the dressings were sold at a premium price, 25% more on average, over similar salad dressings on store shelves because the represented ingredient is a premium oil, and that the use of water and other oil made it worth less than the "premium paid" by consumers. These allegations are sufficient to assert that Plaintiff paid more than the product was worth due to the alleged deceptive practice, and therefore was deprived the benefit of the bargain. As such, the Plaintiff's damage allegations as to his ICFA claim survive 12(b)(6) dismissal. As to MMPA claim, the Judge finds that there are acts of commerce alleged in the Complaint that link the purported misrepresentations to trade and commerce in Missouri. Therefore, the Complaint adequately alleges an MMPA claim on this ground. Although the pleading standard is higher for fraud claims, Judge Yandle holds it does not require as much detail as Pinnacle suggests. The Plaintiff has pled who (Pinnacle) did what (made deceptive statements regarding the extra virgin olive oil content of the E.V.O.O. line of products) and specified what the allegedly deceptive statements were. He has also adequately specified the method by which those alleged misrepresentations (product name and statements on the bottle) were communicated. He has identified the store and area where he purchased the product and a reasonably definite timeframe. Requiring the specific flavor, the specific date and the specific store address, as well as a detailed description of the Plaintiff's specific mental processes is a bridge too far at the pleading stage, even under the Rule 9(b)'s heightened standard. Finally, because those claims survive dismissal, Pinnacle's argument on the Plaintiff's unjust enrichment claim fails as well. For these reasons, Judge Yandle denied Pinnacle's Motion to Dismiss in its entirety. A full-text copy of the Court's March 27, 2018 Memorandum and Order is available at https://is.gd/atWatr from Leagle.com. Arron Korte, individually and on behalf of others similarly situated, Plaintiff, represented by Brian T. Kreisler -- briankreisler@wwkinsurance.com -- Kreisler Law Firm, LLC, George Volney Granade, II, Reese LLP, Michael R. Reese, Reese Richman LLP & Sean K. Cronin, Donovan Rose Nester PC. Pinnacle Foods Group LLC, Defendant, represented by Douglas B. Maddock, Jr. -- dmaddock@shb.com -- Shook, Hardy et al., pro hac vice & James P. Muehlberger -- jmuehlberger@shb.com -- Shook, Hardy et al., pro hac vice. POLICEMEN'S ANNUITY: De Jesus et al. Sue over Pension ----------------------------------------------------- STEVE DE JESUS, SABRINA DUDLEY JOHNSON, and MARIA KOUZOUKAS, individually and on behalf of other similarly situated Chicago Police Officers and retirees who received or are receiving disability pensions, the Plaintiffs, v. POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, the Defendant, Case No. 2018-CH-06195 (Ill. Cir. Ct., May 14, 2018), seeks declaratory judgment declaring that the Defendant has violated its statutory obligations and deprived Plaintiffs and the putative class of their entitlements under the Illinois Pension Code and the Illinois Constitution. The case is a class action brought by the Plaintiffs individually, and on behalf other similarly situated Chicago Police Officers who, since 1998, have received, or arc receiving, monthly disability pension annuities from the Defendant. This complaint is brought for purposes of obtaining relief under the Constitution of the State of Illinois, the Illinois Pension Code, declaratory relief, equitable relief, damages, interest, costs, attorneys' fees, and/or any such other relief the Court may deem appropriate. According to the complaint, the amounts of Plaintiffs' respective monthly disability annuities were at all times systematically calculated in error by the Defendant and as a result, the Plaintiffs did not receive the benefits that they were legally entitled to. Among the benefits which disabled members of the Chicago Policemen's retirement system are entitled to receive from the Fund are monthly disability annuities. At the time of filing of this complaint, there are approximately 275 Chicago Police Officers assigned to various ranks who, like Plaintiffs, are unable to work as police officers and are currently receiving monthly disability annuity payments from the Fund. The Policemen's Annuity & Benefit Fund of Chicago provides financial security services. The Fund offers a defined benefits annuity and retirement plan to its members. The Policemen's Annuity & Benefit Fund serves active, retired, and dependent policemen employed by the city of Chicago, Illinois.[BN] The Plaintiff is represented by: Paul D. Geiger, Esq. Ronald C. Dahms, Esq. LAW OFFICES OF PAUL D. GEIGER 540 W. Frontage Road Suite 3020 Northfield, IL 60093 (773) 410 0841 PORTFOLIO RECOVERY: Can Compel Doc Production in "Bereket" Suit --------------------------------------------------------------- In the case, ABBY BEREKET, individually and on behalf of all others similarly situated, Plaintiff(s), v. PORTFOLIO RECOVERY ASSOCIATES, LLC and JOHN DOES 1-25, Defendant(s), Case No. C17- 0812RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, granted PRA's Motion to Compel (1) the production of documents requested in the subpoenas to Cobalt Credit Services, LLC and Jesse Rodriguez; (2) Mr. Rodriguez to appear for a deposition; and (3) the Plaintiff to produce documents requested in its Requests for Production. The Plaintiff filed a proposed class action on May 24, 2017. He alleges that the Defendant's actions violated Section 1692 et seq. of Title 15 of the United States Code, commonly referred to as the Fair Debt Collections Practices Act ("FDCPA") which prohibits debt collectors from engaging in abusive, deceptive and unfair practices. Specifically, the Plaintiff alleges some time prior to Aug. 23, 2016, an obligation was allegedly incurred to Bank of America. On Aug. 23, 2016, the Defendant caused to be delivered to the Plaintiff a collection letter in an attempt to collect the alleged debt. The letter offered the Plaintiff a number of payment options, one of which offered an 'Installment Option' for the Plaintiff to pay off his entire alleged debt over the course of a number of months. As of Aug. 23, 2016, more than six years had elapsed since the last payment or activity on the Bank of America debt subject to the letter. Pursuant to RCW 4.16.040, the statute of limitations is six (years for filing suit to collect on a debt. The letter states that the law limits how long one can be sued on a debt. Because of the age of the Plaintiff's debt, the Defendant will not sue him for it. The Defendant fails to inform the Plaintiff that should he choose one of the payment plans offered it may re-start the statute of limitations, which may expose him to future litigation for this debt. The Defendant does not inform Plaintiff that should the statute of limitations reset, the Defendant may have the right to commence legal action, which otherwise would have been barred. The Plaintiff alleges that these actions violate section 15 U.S.C. Section 1692e of the FDCPA. On Aug. 17, 2017, the Defendant moved to dismiss the action for failure to state a claim. The Court denied the motion, finding that the Plaintiff had adequately pleaded a cause of action under the FDCPA. The litigation has proceeded in due course since that time. The Defendant now alleges that through the course of discovery, the posture of the case has changed. It asserts that on Sept. 20, 2017, it issued requests for production to the Plaintiff, to which the Plaintiff's counsel responded on Dec. 26, 2017. The Defendant then took the Plaintiff's deposition on Dec. 21, 2017. It states that during the Plaintiff's deposition, it learned that the Plaintiff's concern regarding his debt did not have anything to do with the potential restart of the statute of limitations. Instead, the Plaintiff's only issue was that he believed the debt was too old to still be appearing on his credit file. It was not until 2016, when the Plaintiff became interested in building his credit to buy a house, that the letters from the Defendant caught his eye. Thus, in an effort to clean up his credit, the Plaintiff sought advice from Mr. Rodriguez, a senior credit advisor at Cobalt, who he understood to specialize in credit repair. Thereafter, Mr. Rodriguez and/or the Plaintiff began sending credit reporting agencies numerous dispute letters, demanding that the PRA account be dropped from the Plaintiff's credit report and threatening the agencies with litigation. However, the Plaintiff has also testified that while he had discussed the letters with Mr. Rodriguez over the phone, he had never seen the letters before, and that Mr. Rodriguez must have sent them without his knowledge. Eventually, the account fell off the Plaintiff's credit report. However, he then decided to pursue legal action against PRA for allegedly continuing to report the account beyond its expiration date. Mr. Rodriguez referred the Plaintiff to Marcus & Zelman, LLC. Although the Plaintiff had initially been concerned about the continued reporting of an old account, the basis of the current matter concerns the potential restarting of the statute of limitations when a partial payment is made. After the Plaintiff's deposition, the Defendant issued two subpoenas on Jan. 12, 2018: a subpoena for documents to Cobalt, and another to Mr. Rodriguez for documents and a deposition. It also sent the Plaintiff's counsel a request to meet and confer regarding alleged deficiencies in the Plaintiff's document production, which it believed was revealed at the Plaintiff's deposition. The subpoena issued to Cobalt seeks the following documents: a. All documents reflecting or relating to any agreements between Cobalt and Abby Bereket, including any agreement for Cobalt to perform credit repair services for Abby Bereket. 2. All documents reflecting or relating to communications between Cobalt and Abby Bereket, whether reflected in emails, letters, text messages, voicemail, notes, transcripts, recordings, memoranda, or any other type of media. 3. All documents related to the services Cobalt performed for Abby Bereket, including its file related to those services. 4. All documents reflecting or relating to communications regarding Abby Bereket between Cobalt and any third party, including Experian, TransUnion, Equifax, Marcus & Zelman, LLC or Concord Law. 5. All documents reflecting or relating to any relationship or agreement, formal or informal, between Cobalt and either Marcus & Zelman, LLC or Concord Law. The Plaintiff's counsel subsequently informed the Defendant that Marcus & Zelman would be representing Cobalt and Mr. Rodriguez, and that they would not be producing Mr. Rodriguez for a deposition on the date requested or producing documents responsive to the subpoena. The Defendant now seeks an Order: (1) compelling the production of documents requested in the subpoenas to Cobalt and Mr. Rodriguez; (2) compelling Mr. Rodriguez to appear for a deposition; and (3) compelling the Plaintiff to produce documents requested in its Requests for Production. The Plaintiff opposes the motion on the basis that the discovery sought is irrelevant and not proportional to the needs of the case. Judge Martinez holds that the Court has already determined that these documents are relevant for the reasons set forth in the Defendant's motion. Likewise, the Judge does not find these requests to be overbroad. He says these requests seek targeted documents, which were narrowed through the meet and confer process. The subpoena issued to Mr. Rodriguez seeks the same documents, as well as a deposition. Again, he notes that the documents requests are both relevant and not overbroad. For the same reasons, any testimony of Mr. Rodriguez is also relevant. Accordingly, he will not issue a protective order with respect to these subpoenas. In addition, the Judge notes that since the time the subpoenas were issued, it appears that Mr. Rodriguez and Cobalt have relocated to Hawaii. It also appears that the Plaintiff's counsel has refused to provide new contact information to the Defendant's counsel to date. Because the information and testimony sought is both relevant and proportionate to the needs of the case, the Plaintiff's counsel will provide service addresses for both Cobalt and Mr. Rodriguez in Hawaii pursuant to the Order as set forth. On Jan. 19, 2018, the Plaintiff filed a Motion to Certify Class. That motion remains pending. However, the Judge agrees with the Defendant that the information and testimony being compelled in this motion are relevant to questions regarding class representation and adequacy of class counsel. Moreover, a portion of that motion seeks to appoint now-withdrawn local counsel to represent the class. Because Concord Law no longer represents the Plaintiff in the action, that argument is no longer applicable. Accordingly, Judge Martinez will strike the pending motion to certify the class pending completion of the discovery at issue in this motion. The Plaintiff may then file a new motion to certify class with a revised argument regarding the class counsel. For these reasons, Judge Martinez granted the Defendant's Motion to Compel. No later than 14 days from the date of the Order, the Plaintiff will provide complete responses to the Defendant's RFP Nos. 2 and 5, as narrowed through the meet and confer process, and more fully described. The Plaintiff will also provide complete contact information for Mr. Rodriguez and Cobalt in Hawaii. To the extent that the Plaintiff has sought a protective order for the subpoenas issued to Mr. Rodriguez and Cobalt, the Judge denied that request. The Judge struck the Plaintiff's pending motion for class certification, but may be refiled after the completion of discovery at issue in this motion. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/Sf3yQl from Leagle.com. Abby Bereket, individually and on behalf of all others similarly situated, Plaintiff, represented by Ari Marcus -- Ari@MarcusZelman.com -- MARCUS & ZELMAN, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- MARCUS & ZELMAN, LLC, pro hac vice, Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Blythe H. Chandler -- bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Portfolio Recovery Associates, LLC, Defendant, represented by David L. Hartsell, MCGUIREWOODS LLP, pro hac vice, Duncan Manville -- dmanville@sbwllp.com -- SAVITT BRUCE & WILLEY LLP, Sarah A. Zielinski -- szielinski@mcguirewoods.com -- MCGUIREWOODS LLP, pro hac vice & Stephen C. Willey -- swilley@sbwllp.com -- SAVITT BRUCE & WILLEY LLP. QUALCOMM INC: Appeal Filed in 3226701 Canada Suit ------------------------------------------------- Qualcomm Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 24, 2017, that the plaintiffs in the case entitled, 3226701 Canada, Inc. v. QUALCOMM Incorporated et al, filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. On November 30, 2015, plaintiffs filed a securities class action complaint against the Company and certain of its current and former officers in the United States District Court for the Southern District of California. On April 29, 2016, plaintiffs filed an amended complaint. On January 27, 2017, the court dismissed the amended complaint in its entirety, granting leave to amend. On March 17, 2017, plaintiffs filed a second amended complaint, alleging that the Company and certain of its current and former officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, by making false and misleading statements regarding the Company's business outlook and product development between November 19, 2014 and July 22, 2015. The second amended complaint sought unspecified damages, interest, attorneys' fees and other costs. On May 8, 2017, the Company filed a motion to dismiss the second amended complaint. On October 20, 2017, the court entered an order granting in part the Company's motion to dismiss, and on November 29, 2017, the court entered an order granting the remaining portions of the Company's motion to dismiss. On December 28, 2017, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. The Company believes the plaintiffs' claims are without merit. Qualcomm Incorporated develops and commercializes foundational technologies and products used in mobile devices and other wireless products, including network equipment, broadband gateway equipment and consumer electronics devices. The company derives revenues principally from sales of integrated circuit products and licensing its intellectual property, including patents, software and other rights. The company is based in San Diego, California. QUALCOMM INC: Bid to Dismiss Amended Complaint Still Pending ------------------------------------------------------------ Qualcomm Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 24, 2017, that the court has not yet ruled on the motion to dismiss the consolidated amended complaint filed in U.S. District Court for the Southern District of California On January 23, 2017 and January 26, 2017, respectively, two securities class action complaints were filed by purported stockholders of the Company in the United States District Court for the Southern District of California against the Company and certain of its current and former officers and directors. The complaints alleged, among other things, that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 thereunder, by making false and misleading statements and omissions of material fact in connection with certain allegations that the Company is or was engaged in anticompetitive conduct. The complaints sought unspecified damages, interest, fees and costs. On May 4, 2017, the court consolidated the two actions and appointed lead plaintiffs. On July 3, 2017, the lead plaintiffs filed a consolidated amended complaint asserting the same basic theories of liability and requesting the same basic relief. On September 1, 2017, the defendants filed a motion to dismiss the consolidated amended complaint. The court has not yet ruled on the motion. The Company believes the plaintiffs' claims are without merit. Qualcomm Incorporated develops and commercializes foundational technologies and products used in mobile devices and other wireless products, including network equipment, broadband gateway equipment and consumer electronics devices. The company derives revenues principally from sales of integrated circuit products and licensing its intellectual property, including patents, software and other rights. The company is based in San Diego, California. QUALCOMM INC: Continues to Defend Consumer Class Action ------------------------------------------------------- Qualcomm Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 24, 2017, that the company continues to defend itself in a consumer class action suit in Northern District of California. Since January 18, 2017, a number of consumer class action complaints have been filed against the Company in the United States District Courts for the Southern and Northern Districts of California, each on behalf of a putative class of purchasers of cellular phones and other cellular devices. Twenty-two such cases remain outstanding. In April 2017, the Judicial Panel on Multidistrict Litigation transferred the cases that had been filed in the Southern District of California to the Northern District of California. On May 15, 2017, the court entered an order appointing the plaintiffs' co-lead counsel, and on May 25, 2017, set a trial date of April 29, 2019. On July 11, 2017, plaintiffs filed a consolidated amended complaint alleging that the Company violated California and federal antitrust and unfair competition laws by, among other things, refusing to license standard-essential patents to its competitors, conditioning the supply of certain of its baseband chipsets on the purchaser first agreeing to license the Company's entire patent portfolio, entering into exclusive deals with companies including Apple Inc., and charging unreasonably high royalties that do not comply with the Company's commitments to standard setting organizations. The complaint seeks unspecified damages and disgorgement and/or restitution, as well as an order that the Company be enjoined from further unlawful conduct. On August 11, 2017, the Company filed a motion to dismiss the consolidated amended complaint. On November 10, 2017, the court denied the Company's motion to dismiss the consolidated amended complaint, except to the extent that certain claims seek damages under the Sherman Antitrust Act. The Company believes the plaintiffs' claims are without merit. Qualcomm Incorporated develops and commercializes foundational technologies and products used in mobile devices and other wireless products, including network equipment, broadband gateway equipment and consumer electronics devices. The company derives revenues principally from sales of integrated circuit products and licensing its intellectual property, including patents, software and other rights. The company is based in San Diego, California. QUALCOMM INC: Four Consumer Class Suits Filed in Canada ------------------------------------------------------- Qualcomm Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended December 24, 2017, that the company faces four consumer class action lawsuits in Canada. Since November 9, 2017, four consumer class action complaints have been filed against the Company in Canada (two in the Ontario Superior Court of Justice, one in the Superior Court of Quebec and one in the Supreme Court of British Columbia) alleging various violations of Canadian competition and consumer protection laws. The complaints seek unspecified damages. The Company has not yet answered the complaints. Qualcomm Incorporated develops and commercializes foundational technologies and products used in mobile devices and other wireless products, including network equipment, broadband gateway equipment and consumer electronics devices. The company derives revenues principally from sales of integrated circuit products and licensing its intellectual property, including patents, software and other rights. The company is based in San Diego, California. RESOURCE MS: Dismissal of "Crossman" Suit Affirmed -------------------------------------------------- In the case, MAUREEN CROSSMAN, individually and as a class representative on behalf of others similarly situated, Plaintiff- Appellant, v. RESOURCE MS STONYBROOK NJ MFP LLC; YES ENERGY MANAGEMENT, INC.; and ALLSTATE MANAGEMENT CORP., Defendants- Respondents, Case No. A-3309-15T4 (N.J. Super. App. Div.), the U.S. Superior Court of New Jersey, Appellate Division, affirmed the trial court's order (i) granting the Defendants' motion to dismiss, and denying the Plaintiffs' motion for partial summary judgment. Crossman leased an apartment in the 258-unit Stonybrook Apartments complex. The complex was owned by Resource, and managed by Defendant Allstate. Defendant Yes provided "utility billing" to the complex. Apartment units were not billed directly for water and sewerage services because the units were not individually metered. Instead, each tenant was billed using a Ratio Utility Billing System ("RUBS"), whereby Yes allocated total charges to the complex among the tenants based on a combination of square footage of a tenant's apartment unit and the number of persons residing in a tenant's unit. Prior to occupancy, the Plaintiff executed a written lease that included a utility addendum, which plaintiff also signed. The addendum explained that she was responsible for water and sewerage charges computed by the use of RUBS; the lease further explained she would be billed directly by Yes. Unhappy with the condition of the apartment, the Plaintiff moved out less than two months later. Resource provided a final account statement reflecting a $61.57 water, trash at sewer reimbursement deducted from the Plaintiff's security deposit. Approximately one year later, the Plaintiff filed a putative class action complaint claiming the Defendants' use of RUBS was unlawful, and alleging causes of action for constructive eviction and violation of the New Jersey Truth-in-Renting Act, N.J.S.A. 46:8-43 to-49, against Resource and Allstate, and violation of the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to-20, and civil conspiracy against all the Defendants. When Yes moved to dismiss the Plaintiff's complaint for failure to state a cause of action, the other Defendants joined in the motion, and the Plaintiff moved for partial summary judgment on liability on all but the constructive eviction count of the complaint. In a comprehensive written decision, Judge Richard J. Geiger granted the Defendants' motion and denied the Plaintiff's motion. The appeal followed. Before the Court, the Plaintiff limits her argument to the dismissal of her CFA claim and denial of partial summary judgment in her favor on that count of the complaint. She argues she established the liability of Resource and Yes under the CFA, because utilizing RUBS is unlawful. She contends the Board of Public Utilities ("BPU") regulates the sale and resale of water, and Resource and its agent Yes engaged in the sale and resale of water utilizing the RUBS billing method without BPU approval. The Plaintiff contends she suffered an ascertainable loss as a result. The Appellate Court disagrees and affirms substantially for the reasons expressed by Judge Geiger. He finds that Judge Geiger properly rejected the Plaintiff's argument that Lewandowski v. Brookwood Musconetcong River Property Owners' Association, supported a finding that the Defendants operated a public utility, as defined by N.J.S.A. 48:2-13(a). In Lewandowski, the Court considered whether the BPU properly determined a residential property owners' association's operation of a water system was under the Board's jurisdiction. It held the statute requires the existence of two conditions in order to bring a water supplier within the definition [of a public utility], i.e., (1) that it owns, operates, manages or controls a water system for public use, and (2) that it does this under privileges granted by the State or any of its political subdivisions. In conducting that two-prong analysis, the Court held that "public use" depended on the character and extent of use and not upon agreements or understandings between the supplier and those supplied. The Appellate Court also finds that Judge Geiger properly distinguished Lewandowski from this case. He noted that in Lewandowski, the association operated a water supply system which included constructing wells, thereby diverting significant quantities of water from the State's natural resources for use by a larger number of property owners, and the water system operated under privileges granted by the State Department of Health and two municipalities given some 24,000 feet of water mains were constructed in dedicated streets. The Plaintiff also argues the use of RUBS results in an unlawful diversion of utility services, violating both N.J.S.A. 2A:42-88 and N.J.A.C. 14:3-7.8. The Appellate Court agrees with Judge Geiger, who concluded the statute and regulation are aimed at addressing utilities that are physically diverted by unauthorized connection to pipes' serving other living units, such as when a tenant is charged for electric services being used by another tenant as a result of a single electric meter or shared electrical circuits within the dwelling. The Plaintiff's argument lacks sufficient merit to warrant further discussion. Finally, although the Legislature has chosen to regulate "indirect apportionment of heating costs" in multi-family dwellings through the Department of Community Affairs and indirectly the BPU, the Court finds that none of the agency statements or unreported cases the Pplaintiff cites in her brief supports the conclusion that the BPU or any other agency has prohibited the use of RUBS or similar systems to apportion water and sewerage costs among tenants. For these reasons, the Court affirmed. A full-text copy of the Court's March 27, 2018 Opinion is available at https://is.gd/A9v9yZ from Leagle.com. Lewis G. Adler -- lewisadler@verizon.net -- argued the cause for appellant (Lewis G. Adler and Paul DePetris -- paul@newjerseylemon.com -- attorneys; Lewis G. Adler and Paul DePetris, on the briefs). Alan C. Milstein -- amilstein@shermansilverstein.com -- argued the cause for respondents Resource MS Stonybrook NJ MPF, LLC and Allstate Management Corp. (Sherman, Silverstein, Kohl, Rose & Podolsky, PA, attorneys; Alan C. Milstein, on the brief). Daniel C. Gibbons -- dgibbons@nixonpeabody.com -- argued the cause for respondent Yes Energy Management, Inc. (Nixon Peabody, LLP, attorneys; Daniel C. Gibbons, on the brief). James M. Graziano -- jgraziano@archerlaw.com -- argued the cause for amicus curiae New Jersey Apartment Association and National Apartment Association (Archer & Greiner, PC, attorneys; James M. Graziano, of counsel and on the brief; Maureen T. Coghlan -- mcoghlan@archerlaw.com -- on the brief). R.C. WENDT: Fails to Pay Minimum & Overtime Wages, Cuadras Says --------------------------------------------------------------- MIGUEL ANGEL LOPEZ CUADRAS, individually, and on behalf of all others similarly situated, the Plaintiff, v. R.C. WENDT PAINTING, INC., a California corporation; and DOES 1 through 10, inclusive the Defendant, Case No. BC705064 (Cal Super. Ct., May 15, 2018), seeks to recover minimum and straight time wages and overtime compensation under the California Labor Code. The Plaintiff brings this action against Defendants for California Labor Code violations and unfair business practices stemming from Defendants' failure to pay minimum and straight time wages, failure to pay overtime wages, failure to provide meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of hours worked and meal periods, failure to timely pay all wages to terminated employees, failure to indemnify necessary business expenses, and failure to furnish accurate wage statements. R.C. Wendt Painting was founded in 1980. The company's line of business includes providing painting and paper hanging services.[BN] The Plaintiff is represented by: Kane Moon, Esq. Justin F. Marquez, Esq. Allen Feghali, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232 3128 Facsimile: (213) 232 3125 E-mail: kane.moon@moonyanglaw.com justin.marquez@moonyanglaw.com allen.feghali@moonyanglaw.com ROADRUNNER TRANS: Faces Securities Class Suit in Wisconsin ---------------------------------------------------------- Roadrunner Transportation Systems, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016, that the company continues to defend a consolidated class action suit entitled, In re Roadrunner Transportation Systems, Inc. Securities Litigation, in Wisconsin. Following the company's press release on January 30, 2017, three putative class actions were filed in the United States District Court for the Eastern District of Wisconsin on behalf of a class of persons who acquired our common stock between May 8, 2014 and January 30, 2017, inclusive. The Complaints allege that the company, Mark A. DiBlasi, and Peter R. Armbruster violated Section 10(b) of the Exchange Act, and Messrs. DiBlasi and Armbruster violated Section 20(a) of the Exchange Act, by making materially false or misleading statements, or failing to disclose material facts, regarding the company's internal control over financial reporting and the cmompany's financial statements. The Complaints seek certification as a class action, compensatory damages, and attorney's fees and costs. On May 19, 2017, the Court consolidated the actions under the caption In re Roadrunner Transportation Systems, Inc. Securities Litigation, and appointed Public Employees' Retirement System as lead plaintiff. Counsel for lead plaintiff has advised the company of their intent to file a consolidated Amended Complaint after the company issue its restated financial statements. Roadrunner Transportation Systems, Inc. is a leading asset-right transportation and asset-light logistics service provider offering a full suite of solutions. The company's Truckload Logistics ("TL") and Less-than-Truckload ("LTL") segments offer solutions including less-than-truckload, air and ground domestic and cross-border expedite, dry van and temperature controlled truckload logistics, and intermodal services. The company is based in Downers Grove, Illinois. SILO EAST: "Quiroz" Suit Seeks Unpaid Minimum Wages under FLSA -------------------------------------------------------------- HECTOR QUIROZ, FRANCISCO SACALXOT YAC, and DIEGO (A.K.A. DIEGO RIOS) FABIAN RIOS RIOS, individually and on behalf of others similarly situated, the Plaintiffs, v. SILO EAST INC. (D/B/A SOCARRAT PAELLA BAR), JESUS (A.K.A. LOLO) MANSO, SILVIA ZOFIO, MERCEDES DOE, BENNY DOE, and ULYSSES DOE, the Defendants, Case No. 1:18-cv-04268 (S.D.N.Y., May 14, 2018), seeks to recover unpaid minimum wages pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. According to the complaint, the Plaintiffs were ostensibly employed as busboys and food runners. However, they were required to spend a considerable part of their work day performing non- tipped duties, including but not limited to preparing food, preparing desserts, sweeping and mopping, taking out the trash, tying cardboard boxes, dishwashing, bringing down boxes of liquor, cleaning the bathroom, cleaning the windows in the morning, cleaning the kitchen, performing plumbing duties, dishwashing, cleaning the bar, bringing glasses to the bar, polishing the cups, making napkin and silverware sets for the bar, taking orders from the customers, organizing deliveries and doing deliveries (but was not tipped). The Plaintiffs worked for Defendants without appropriate minimum wage compensation for the hours that they worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay. Furthermore, Defendants repeatedly failed to pay Plaintiffs wages on a timely basis.[BN] Attorneys for Plaintiffs: MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: Faillace@employmentcompliance.com SIRIUS XM: "Buchanan" TCPA Class Action Underway ------------------------------------------------ Sirius XM Holdings 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 faces a Telephone Consumer Protection Act of 1991 (the "TCPA") class action complaint filed by Thomas Buchanan. On March 13, 2017, Thomas Buchanan, individually and on behalf of all others similarly situated, filed a class action complaint against the company in the United States District Court for the Northern District of Texas, Dallas Division. The plaintiff in this action alleges that the company violated the Telephone Consumer Protection Act of 1991 (the "TCPA") by, among other things, making telephone solicitations to persons on the National Do-Not-Call registry, a database establish.hed to allow consumers to exclude themselves from telemarketing calls unless they consent to receive the calls in a signed, written agreement, and making calls to consumers in violation of our internal Do-Not- Call registry. The plaintiff is seeking various forms of relief, including statutory damages of five hundred dollars for each violation of the TCPA or, in the alternative, treble damages of up to fifteen hundred dollars for each knowing and willful violation of the TCPA and a permanent injunction prohibiting us from making, or having made, any calls to land lines that are listed on the National Do-Not-Call registry or our internal Do-Not-Call registry. Sirius XM Holdings said "We believe we have substantial defenses to the claims asserted in this action, and we intend to defend this action vigorously." Sirius XM Holdings Inc. provides satellite radio services in the United States. The company broadcasts music plus sports, entertainment, comedy, talk, news, traffic, and weather programs, including various music genres ranging from rock, pop and hip-hop to country, dance, jazz, Latin, and classical; live play-by-play sports from principal leagues and colleges; multitude of talk and entertainment channels for various audiences; national, international, and financial news; and limited run channels. SQUARETRADE INC: "Swinton" Suit Moved to Southern Dist. of Iowa --------------------------------------------------------------- In the lawsuit captioned as DAVID M. SWINTON, on behalf of himself and all others similarly situated, the Plaintiff, v. SQUARETRADE, INC., the Defendant, Case No. LACL140964, the Defendant removed the case from the Iowa District Court for Polk County, to the United States District Court for the Southern District of Iowa. The District Court Clerk assigned Case No. 4:18-cv-00144-SMR-SBJ to the proceeding. According to the complaint, on April 20, 2018, the Plaintiff, on behalf of himself and others allegedly similarly situated, filed a putative class action petition against SquareTrade in the District Court for Polk County, Iowa. The Plaintiff alleges that SquareTrade engaged in unfair, deceptive, and unlawful business practices regarding the advertising, marketing, and sales of Protection Plans through Amazon.com for consumer electronics and costing between $1.00 and $6,000. SquareTrade Inc. is an extended warranty service provider for consumer electronics and appliances headquartered in San Francisco's SoMa district.[BN] The Plaintiff is represented by: Harley C. Erbe, Esq. ERBE LAW FIRM 2501 Grand Avenue Des Moines, IA 50312 Telephone: (515) 281 1460 Facsimile: (515) 281 1474 E-mail: erbelawfirm@aol.com - and - Steven P. Wandro, Esq. WANDRO & ASSOCIATES 2501 Grand Avenue Des Moines, IA 50312 Telephone: (515) 281 1475 Facsimile: (515) 281 1474 E-mail: swandro@2501grand.com Attorneys for Defendant: John F. Lorentzen, Esq. NYEMASTER GOODE, P.C. 700 Walnut, Suite 1600 Des Moines, IA 50309-3899 Telephone: (515) 283 3100 Facsimile: (515) 283 3108 E-mail: jfl@nyemaster.com - and - Douglas A. Winthrop, Esq. Michael A. Berta, Esq. Katelyn Rey, Esq. ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111-4024 Telephone: (415) 471 3100 Facsimile: (415) 471 3400 E-mail: Douglas.Winthrop@arnoldporter.com Michael.Berta@arnoldporter.com Katelyn.Rey@arnoldporter.com TAXI COMPUTER: Cal. App. Affirms Summary Judgment in "Demeter" -------------------------------------------------------------- In the case, MICHAEL DEMETER, Plaintiff and Appellant, v. TAXI COMPUTER SERVICES, INC., et al., Defendants and Respondents, Case No. B276192 (Cal. App.), Judge Lamar Baker of the Court of Appeals of California for the Second District, Division Five, affirmed the trial court's order granting summary judgment in favor of the Defendants. Plaintiff and Appellant Demeter filed a putative class action complaint against Defendants and respondents TAXI and its CEO Michael Laskow. The complaint alleged TAXI operated a talent listing service without procuring the bond California's Fee- Related Talent Services Law ("FTSL") requires for the benefit of any person injured by any unlawful act, omission, or failure to provide the services of the talent service. Demeter alleged causes of action under the FTSL itself and under California's Unfair Competition Law ("UCL"). TAXI is an "Artist & Repertoire" corporation that works with companies, publishers, and supervisors in the music industry who are looking for composers and songs for their artists, or for TV and film placements. Based on information provided by industry professionals, TAXI creates and posts listings on its website describing the type of music sought and the submission deadline. TAXI members pay an annual flat fee for access to TAXI's listings and other services, plus an additional $5.00 fee to submit music in response to a listing on the TAXI website. Demeter is a musician and DJ who has worked in the music industry for 30 years. In early December 2012, Demeter purchased a one- year TAXI membership via TAXI's website for $299.95. Roughly six weeks after he purchased his membership, Demeter filed a putative class action complaint alleging (1) TAXI had not procured the $50,000 bond required by the FTSL at the time Demeter paid for his membership; (2) TAXI failed to provide Demeter with a written contract that satisfied the requirements of the FTSL, including an advisement that TAXI had complied with the bonding requirement, and (3) the TAXI website represented the company had an A+ or A- rating with the Better Business Bureau ("BBB") when, in truth, TAXI had no rating when his complaint was filed because the BBB does not rate talent services that are not in compliance with California law. The operative complaint further alleged a violation of the UCL because TAXI and Laskow violated the FTSL and therefore engaged in unfair competition. The operative complaint's prayer for relief sought, among other things, payment of Demeter's attorney fees, treble compensatory damages under the FTSL, and restitution and injunctive relief under the UCL. TAXI and Laskow moved for summary judgment, arguing Demeter was not aware of the bond requirement when he signed up with TAXI and suffered no injury because he had no complaints about the service TAXI offered. The trial court granted TAXI's motion for summary judgment. In doing so, it found TAXI's evidence demonstrated Demeter's legal rights were not invaded by TAXI's alleged failure to comply with contractual bonding requirements in the FTSL and concluded they had "brought forth proof that plaintiff has not suffered an injury sufficient to allow him to assert his FTSL claim. The trial court concluded TAXI had satisfied its burden to show Demeter could not establish the requisite element of injury for either his FTSL or UCL cause of action, and therefore could not establish a triable issue of material fact with respect to the viability of his UCL or FTSL claim. Demeter claims he was injured by TAXI's alleged violations of the FTSL -- failure to provide him with an FTSL-compliant contract and failure to obtain a bond -- because he would not have purchased a TAXI subscription if he had known TAXI was not complying with the law. The dispositive question before Judge Baker reduces to whether that is a cognizable injury under the FTSL. He concludes it is not. Because TAXI's alleged failure to provide Demeter with an FTSL- compliant contract rendered the contract merely voidable, not per se illegal, Demeter's theory of injury fails as to that asserted violation. And because Demeter both admitted he did not know TAXI was required to have a bond before he purchased his membership and failed to provide any evidence he suffered some injury that might have entitled him to collect on such a bond, Demeter failed to demonstrate the existence of a triable issue of material fact regarding any injury caused by the absence of a bond. In other words, the Judge says, Demeter's FTSL claim amounts to no more than an assertion Demeter was injured by TAXI's noncompliance with the FTSL, but that mere noncompliance is not an injury caused "by a violation" of the FTSL. For similar reasons, Demeter's evidence also failed to raise a triable issue of material fact as to whether he suffered an economic injury caused by TAXI's alleged violations of the FTSL, which he must to establish standing to sue under the UCL. Neither of his causes of action being viable, Judge Baker affirmed the trial court's grant of summary judgment. The Respondents will recover their costs on appeal. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/lhKoPF from Leagle.com. Lakeshore Law Center, Jeffrey N. Wilens -- jeff@lakeshorelaw.org; The Spencer Law Firm and Jeffrey P. Spencer -- jps@spencerlaw.net -- for Plaintiff and Appellant. Law Offices of David J. Vendler and David J. Vendler -- djvlegal@gmail.com -- for Defendants and Respondents. TECHNICOLOR USA: "Sharp" Suit Transferred to W.D. Tennessee ----------------------------------------------------------- The class action lawsuit titled Robert Sharp, on behalf of himself and on behalf of all others similarly situated, the Plaintiff, v. Technicolor USA, Inc. and Prologistics, LLC., the Defendant, Case No. 3:18-cv-00379, was transferred from the U.S. District Court for the Middle District of Tennessee, to the U.S. District Court for the Western District of Tennessee (Memphis) on May 15, 2018. The Western District Court Clerk assigned Case No. 2:18-cv-02325-SHL-dkv to the proceeding. The case is assigned to the Hon. Judge Sheryl H. Lipman. Technicolor works with creative and technology leaders in content creation, distribution and consumption to seamlessly deliver experiences worldwide.[BN] The Plaintiff is represented by: Brian C. Winfrey, Esq. MORGAN & MORGAN (NASHVILLE OFFICE) 810 Broadway, Suite 105 Nashville, TN 37203 Telephone: (615) 601 1276 Facsimile: (615) 473 3243 E-mail: bwinfrey@forthepeople.com Attorneys for Technicolor USA, Inc.: Craig A. Cowart, Esq. Pamela R. Irons, Esq. JACKSON LEWIS LLP - MEMPHIS 999 Shady Grove Road, Suite 110 Memphis, TN 38120 Telephone: (901) 462 2600 Facsimile: (901) 462 2626 E-mail: craig.cowart@jacksonlewis.com ironsp@jacksonlewis.com TENNECO INC: Still Defends Suit over Anticompetitive Conduct ------------------------------------------------------------ Tenneco Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that Tenneco and certain of its competitors are currently defendants in civil putative class action litigation in the United States and Canada, and more related lawsuits may be filed, including in other jurisdictions. Plaintiffs in these cases generally allege that defendants have engaged in anticompetitive conduct, in violation of federal and state laws, relating to the sale of automotive exhaust systems or components thereof. Plaintiffs seek to recover, on behalf of themselves and various purported classes of purchasers, injunctive relief, damages and attorneys' fees. The Company said, "because we received conditional leniency from the DOJ, our civil liability in U.S. follow on actions is limited to single damages and we will not be jointly and severally liable with the other defendants, provided that we have satisfied our obligations under the DOJ leniency agreement and approval is granted by the presiding court. Typically, exposure for follow- on actions in Canada is less than the exposure for U.S. follow-on actions." Tenneco is one of the world's leading manufacturers of clean air and ride performance products and systems for light vehicle, commercial truck and off-highway applications. TRANSUNION RENTAL: June 4 Deadline to File Bid to OK Settlement --------------------------------------------------------------- In the case, Kelissa Ronquillo-Griffin; Khoi Nguyen; and Russell Smith, individually and on behalf of all others similarly situated, Plaintiffs, v. TransUnion Rental Screening Solutions, Inc., and Transactel (Barbados), Inc., Defendants, Case No. 17cv129-JM (BLM) (S.D. Cal.), Magistrate Judge Barbara L. Major of the U.S. District Court for the Southern District of California has entered an order confirming settlement and setting deadline to file motion for preliminary approval of the class action settlement. On March 26, 2018, the parties filed a Notice of Settlement informing the Court that they have settled the action in its entirety on a class action basis. The parties request that the Court sets a deadline of June 4, 2018 for the Plaintiffs to file a motion for preliminary approval of class action settlement. The Magistrate Judge ordered the Plaintiffs to file their motion for preliminary approval of the class action settlement on or before June 4, 2018. She further ordered the parties to contact District Judge Miller's chambers to obtain a preliminary approval hearing date prior to filing the document. She vacated all other pending dates before the Court and District Judge Miller. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/khQnKY from Leagle.com. Kelissa Ronquillo-Griffin, individually and on behalf of others similarly situated, Khoi Nguyen, individually and on behalf of others similarly situated & Russell Smith, individually and on behalf of others similarly situated, Plaintiffs, represented by Abbas Kazerounian -- ak@kazlg.com -- Kazerounian Law Group, APC, Jason A. Ibey -- jason@kazlg.com -- Kazerouni Law Group, APC, Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart, Yana A. Hart -- yana@westcoastlitigation.com -- Hyde & Swigart & Daniel G. Shay -- danielshay@tcpafdcpa.com -- Law Offices of Daniel G. Shay. TransUnion Rental Screening Solutions, Inc., Defendant, represented by Cristina Anastassia Guido -- cguido@stroock.com -- Stroock & Stroock & Lavan LLP, Julia Beatrice Strickland -- jstrickland@stroock.com -- Stroock & Stroock & Lavan LLP, Shannon E. Dudic -- sdudic@stroock.com -- Stroock & Stroock & Lavan LLP & Stephen J. Newman -- snewman@stroock.com -- Stroock & Stroock & Lavan LLP. Transactel (Barbados), Inc., Defendant, represented by Amanda Catherine Fitzsimmons -- amanda.fitzsimmons@dlapiper.com -- DLA Piper LLP, Edward D. Totino -- edward.totino@dlapiper.com -- DLA Piper LLP & Perrie M. Weiner -- perrie.weiner@dlapiper.com -- DLA Piper LLP. TROY CONSTRUCTION: Court Grants Bid to Dismiss "Stone" Wage Suit ---------------------------------------------------------------- Judge James M. Munley of the U.S. District Court for the Middle District of Pennsylvania dismissed without prejudice the case captioned LINDA STONE, et al., Plaintiffs, v. TROY CONSTUCTION, LLC, Defendant, Case No. 3:14cv306 (M.D. Pa.). Before the Court for disposition are several motions in the class action lawsuit dealing with the payment of overtime wages. The first is a motion by the Defendant for summary judgment on Counts I and III of the Plaintiffs' complaint. The second is a motion by the Plaintiffs for partial summary judgment on the issue of liability. The third is a motion by the Defendant to decertify the Fair Labor Standards Act ("FLSA") collective action and Rule 23 class action. The Defendant is a construction company which builds and maintains, inter alia, oil and gas pipelines and compressor stations. This business is itinerant in nature with employees traveling from worksite to worksite. Many of Troy's employees travelled from their homes in other states to work on projects for Troy. Some of the Defendant's employees, however, live near the worksites and work there until the project is complete and do not follow the Defendant to a new worksite. Stone worked for the Defendant commencing in January 2013. The Plaintiff, a resident of Montrose Pennsylvania, worked at the Defendant's "shop" in Montrose, Pennsylvania and also as a "spotter" at its Northeast Compressor Station project in Hallstead, Pennsylvania. She did not enter into a written contract with the Defendant and the Defendant did not provide her an employee handbook. She served as an "at-will" employee. Because some of its employees permanently resided in other states and traveled to work for the Defendant, the Defendant paid "non- exempt" employees daily per diems for expenses such as travel, meals and lodging. The Plaintiff and other employees who resided less than 50 miles from the Defendant's worksites received the per diem payments also. In March 2013, the Defendant terminated the Plaintiff's employment. Subsequently, she filed the instant class and collective action on behalf of herself and all other similarly situated employees. Stone formerly worked for Defendant Troy for a total of eight weeks on a pipeline project in Montrose, Pennsylvania. She filed the instant wage and hour lawsuit on Feb. 19, 2014. The Plaintiff asserts that the payment of the "per diem" to her was not to reimburse her for expenses but was actually part of the wages she received. When determining her overtime rate of pay, the Defendant did not take into consideration the "per diem" that she was paid. This resulted in a dilution of the overtime rate of pay; that is, the overtime rate was not as high as it should have been according to the Plaintiff. Accordingly, the Plaintiff raises the following causes of action: Count I - violation of FLSA; Count II - violation of the Pennsylvania Minimum Wage Act; and Count III - violation of the Pennsylvania Wage Payment & Collection Law. The federal FLSA claim is brought as a collective action, and the two Pennsylvania Wage Law claims are brought as a class action under Rule 23 of the Federal Rules of Civil Procedure. Judge Munley finds that the applicable statute of limitations on the Plaintiffs' FLSA claim is two years. The last cause of action giving rise to the lawsuit accrued on March 15, 2013. The lawsuit commenced on March 22, 2016. Because more than two years passed between the time the cause of action accrued and the date the lawsuit commenced, he finds that the Plaintiffs' FLSA claim is time-barred. Accordingly, he will dismiss Count I. The Judge explains that the Court's jurisdiction in the case rests in the federal FLSA. In any civil action of which the district courts have original jurisdiction, the district courts will have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. As such, the Judge permitted the Plaintiffs' two Pennsylvania Wage Law claims to proceed under supplemental jurisdiction. At this juncture, however, upon the dismissal of the single claim over which we have original jurisdiction, he declines to retain supplemental jurisdiction over the remaining state claims. He finds that the issues that remain in the action are more appropriate for a state court to decide. As such, he will dismiss Count II and Count III of the Plaintiffs' complaint. Judge Munley finds that the Plaintiffs' FLSA claim is barred by a two year statute of limitations, thus the Court does not have jurisdiction to hear the claim. He declines to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, he dismissed the case in its entirety, without prejudice to the Plaintiffs pursuing their state law causes of action in Pennsylvania courts. A full-text copy of the Court's March 27, 2018 Memorandum is available at https://is.gd/L1vVt6 from Leagle.com. Linda Stone, on behalf of herself and those similarly situated, Plaintiff, represented by Justin L. Swidler -- jswidler@swartz- legal.com -- SWARTZ SWIDLER LLC, Matthew D. Miller -- mmiller@swartz-legal.com -- & Richard S. Swartz -- rswartz@swartz-legal.com -- Swartz Swidler LLC. Troy Construction, LLC, Defendant, represented by Jacob E. Godard -- godardj@gtlaw.com -- Greenberg Traurig, LLP, Michael Burnett - - burnettm@gtlaw.com -- Greenberg Traurig, LLP, Adam R. Roseman - - rosemana@gtlaw.com -- Greenberg Traurig, LLP, pro hac vice & James N. Boudreau -- boudreauj@gtlaw.com -- Greenberg Traurig, LLP. UNITED INDUSTRIES: Bid to Certify "Arthur" Class Suit Denied ------------------------------------------------------------ In the lawsuit styled GREGORY ARTHUR, the Plaintiff, v. UNITED INDUSTRIES CORPORATION, the Defendant, Case No. 2:17-cv-06983- CAS-SK (C.D. Cal.), the Court denies without prejudice Plaintiff's motion for class certification of: "all persons who, on or after September 21, 2013, purchased in California, for personal or household use and not for resale or distribution, Spectracide Concentrate products in packages stating that the product "Makes up to" a specified number of gallons as follows: 16 Ounce Spectracide Concentrate "Makes Up to 5 Gallons" 32 Ounce Spectracide Concentrate "Makes Up to 10 Gallons" 40 Ounce Spectracide Concentrate "Makes Up to 13 Gallons" 64 Ounce Spectracide Concentrate "Makes Up to 20 Gallons" Accordingly, although the Plaintiff and his counsel appear ready and willing to prosecution the action vigorously on behalf of the proposed class, insofar as the Plaintiff's injury appears distinct from the proposed class members' injuries, and insofar as it is unclear whether certain proposed class members suffered any injury at all, plaintiff fails to demonstrate that he is free from conflicts of interest that may arise with other proposed class members. The Court therefore concludes that the Plaintiff fails to demonstrate that he can adequately represent the proposed class. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=ecZ76DaG VROOM INC: Wins Summary Judgment in "Edelsberg" TCPA Suit --------------------------------------------------------- In the case, MARK EDELSBERG, individually and on behalf of all others similarly situated, Plaintiff(s), v. VROOM, INC., Defendant, Case No. 16-cv-62734-GAYLES (S.D. Fla.), Judge Darrin P. Gayles of the U.S. District Court for the Southern District of Florida granted Vroom's Motion for Summary Judgment. Vroom is an online car retailer that buys, sells, and finances used vehicles over the Internet. As a seller of used vehicles, Vroom necessarily needs to acquire used vehicles in order to maintain its inventory. In order to source its inventory with vehicles purchased directly from individuals, Vroom launched an online appraisal tool (www.vroom.com/sell), referred to as the "Sell Your Car" or "SYC" platform, which allowed a used car owner to receive a cash offer for his or her vehicle after filling out Vroom's online appraisal form. One of the ways Vroom identified individual sellers of used vehicles was through online classified advertisements on websites such as Craigslist (www.craigslist.com). Once Vroom identified a vehicle that appeared to meet its purchasing criteria, Vroom would send a text message to the seller expressing its interest in purchasing the advertised vehicle. On July 12, 2016, Edelsberg posted a classified advertisement on Craigslist in an attempt to sell his mother's 2010 Toyota Prius. Edelsberg understood that his advertisement could be viewed by anyone who visited Craigslist. His advertisement did not state that he did not want to be contacted by dealers or distant buyer. On July 14, 2016, Vroom sent Edelsberg a single text message in response to Edelsberg's online advertisement. Vroom texted Edelsberg to express its interest in purchasing his advertised Prius and to obtain the additional information needed for Vroom to appraise the vehicle and provide Edelsberg with a cash offer. Edelsberg did not click on the link in the text message, view or complete the vehicle appraisal form, or otherwise engage with the "Sell Your Car" platform in any other way. Aside from the initial text message at issue, Vroom did not send Edelsberg any other text messages. Edelsberg brings the putative class action against Vroom for alleged violations of the Telephone Consumer Protection Act ("TCPA"). He alleges that Vroom violated the TCPA by using an Automatic Telephone Dialing System ("ATDS") to send him an automated telemarketing text message. Vroom argues that its actions did not violate the TCPA because its text message was sent in direct response to an online classified advertisement posted by Edelsberg and, therefore, the text message did not constitute telemarketing. It further argues that Edelsberg expressly consented to receiving the text message in question by including his cell phone number in the advertisement and directing interested buyers to contact him at that number for more information. Before the Court is Vroom's Motion for Summary Judgment. First, Judge Gayles must determine whether Vroom's text message can be considered telemarketing. If so, Vroom was required to obtain Edelsberg's prior express written consent before contacting him. If Vroom's text message did not constitute telemarketing, then Vroom only needed to obtain Edelsberg's prior express consent before contacting him. The Judge finds that it is clear that the purpose of the single text message from Vroom was to direct Edelsberg to a page on its website for him to enter information that would facilitate Vroom's ability to purchase his car. While it is apparent that visiting Vroom's website could result in the increase in the chances of Edelsberg purchasing a used car sold by Vroom, Edelsberg cites no authority indicating that this degree of connection between communication and purchase is sufficient to transform a text of the sort he received into a telemarketing message. He concludes that Vroom's text message to Edelsberg was plainly not telemarketing. He further finds that the text message did not constitute a "dual purpose" message as contemplated by the FCC. Therefore, in order to be entitled to summary judgment, Vroom needs only show that Edelsberg provided prior express consent to be contacted. Judge Gayles finds that by including his phone number in an online advertisement that he knew could be accessed by anyone with an Internet connection and directing interested buyers to contact him at the provided number for "more info," Edelsberg expressly consented to being contacted by Vroom at that number to facilitate the purchase of his advertised vehicle. Despite Edelsberg's post hoc representations that he did not want to be contacted by dealerships or with automated messages, there are no such limitations included in Edelsberg's actual Craigslist advertisement. By including his cell phone number in his advertisement with instructions to contact him for more information, Edelsberg provided express consent for Vroom to contact him for that purpose. Based on this, Judge Gayles granted the Defendant's Motion for Summary Judgment. He closed the action and denied as moot all other pending motions. A full-text copy of the Court's March 27, 2018 Order is available at https://is.gd/wNuB8z from Leagle.com. Mark Edelsberg, Plaintiff, represented by Andrew John Shamis -- ashamis@sflinjuryattorneys.com -- Manuel Santiago Hiraldo -- mhiraldo@hiraldolaw.com -- Hiraldo P.A., Andree Quaresima -- andree.quaresima@gmail.com -- Scott D. Owens PA, Angelica Marie Gentile -- agentile@shamisgentile.com -- Shamis & Gentile, P.A., Scott David Owens -- scott@scottdowens.com -- SCOTT D. OWENS, P.A., Sean Martin Holas -- sean@scottdowens.com -- Scott D. Owens, P.A. & Seth Michael Lehrman -- seth@epllc.com -- Edwards Pottinger, LLC. Vroom, Inc., Defendant, represented by Alexander H. Southwell -- asouthwell@gibsondunn.com -- Gibson Dunn & Crutcher, pro hac vice, Timothy W. Loose -- tloose@gibsondunn.com -- Gibson Dunn & Crutcher, LLP, pro hac vice, Kadian Nichole Blanson, Rivero Mestre LLP, Kingsley Chinedu Nwamah -- knwamah@riveromestre.com - - Rivero Mestre LLP & Jorge Alejandro Mestre -- jmestre@riveromestre.com -- Rivero Mestre LLP. WALLYPARK AIRPORT: Tucker Seeks Unpaid Wages under Labor Code ------------------------------------------------------------- DETREK TUCKER, as an individual and on behalf of all others similarly situated, the Plaintiff, v. LR SAN DIEGO WALLYPARK, LLC, a Delaware Limited Liability Company, dba WALLYPARK AIRPORT PARKING; LR SAN DIEGO AIRPORT PARKING, LLC, a Delaware Limited Liability Company, dba WALLYPARK AIRPORT PARKING; LR SAN DIEGO PARKING OPERATOR, LLC a Delaware Limited Liability Company, dba WALLYPARK AIRPORT PARKING; and DOES 1 through 100, the Defendant, Case No. 37-2018-00023649-CU-0E-CTL (Cal. Super. Ct., May 14, 2018), seeks to recover unpaid wages and penalties under the California Business and Professions Code, Industrial Welfare Commission Wage Order, and California Labor Code. The Defendants operate parking facilities throughout the State of California, and offer a wide range of automotive parking services, including valet, self-parking, shuttle service, as well as car care services that include auto washing/detailing, window tinting, and oil changes. The Plaintiff was employed by Defendants from approximately April 2016 until September 2016 in the non-exempt position of Cashier. His primary responsibilities included handling of payments, customer service, and ensuring that the cashier's booth was properly manned at all times. The Defendants failed to provide Plaintiff and other non-exempt employees with all statutorily-mandated meal periods due to Defendants' meal period policies/practices, which systematically result in late (commencing after the fifth hour of work), short (less than 30 minutes), and missed first and second meal periods. Defendants did not provide Plaintiff and other similarly situated employees any first meal periods on numerous occasions.[BN] Attorneys for Plaintiff: Paul K. Haines, Esq. Sean M. Blakely, Esq. Daniel J. Brown, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com sblakely@haineslawgroup.com dbrown@haineslawgroup.com WEBSTAURANT STORE: "Rogers" Suit Seeks Overtime Pay under FLSA -------------------------------------------------------------- BRITTANY ROGERS, on Behalf of Herself and All Others Similarly- situated, the Plaintiff, v. THE WEBSTAURANT STORE, INC., the Defendant, Case No. 4:18-cv-00074-JHM-HBB (W.D. Ky., May 14, 2018), seeks to recover overtime pay under the Fair Labor Standards Act. The Defendant sells commercial kitchen equipment through the website www.webstaurantstore.com, and employs customer support representatives and similar non-exempt employees on a salary (non-hourly) basis at several locations around the country (including one in Madisonville, Kentucky). According to the lawsuit, the Defendant has willfully engaged in the practice of not recording employees' time for all work performed, and not compensating employees with appropriate payment for such work in excess of 40 hours in a work week, in violation of the FLSA.[BN] The Plaintiff is represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER, PLLC P.O. Box 869 Madisonville, KY 42431 Telephone: (270) 213 1303 E-mail: MFoster@MarkNFoster.com WESTERN STATES: 9th Cir. Flips Summary Judgment in Antitrust Suit ----------------------------------------------------------------- In the case, In re WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION. REORGANIZED FLI, INC., Plaintiff-Appellant, v. ONEOK, INC., et al., Defendants-Appellees, Case No. 16-17279 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit reversed the district court's grant of summary judgment to the Defendants. RFLI alleged that the Defendants violated the Kansas Restraint of Trade Act by manipulating the price of natural gas and that its predecessor-in-interest, Farmland, was injured in paying inflated prices on contracts for "physical" natural gas. The Defendants moved for summary judgment on the ground that these claims were barred by settlement releases in a prior class action, In re Natural Gas Commodity Litigation ("NYMEX Action"). In the NYMEX Action, the class alleged the same manipulative conduct by Defendants, but the NYMEX class alleged they were injured in paying inflated prices on natural gas futures contracts (as opposed to retail purchases of physical natural gas). The releases entered in the NYMEX Action purported to release any and all claims relating in any way to the class's NYMEX trading or any conduct alleged in the class complaint. The district court found that the NYMEX Releases barred RFLI's present claims, and therefore granted summary judgment to the Defendants on their affirmative defense of release. The Appellate Court finds that the complaints in both actions allege that the Defendants inflated the price of natural gas by manipulative trading practices. But even if those elements of the factual predicates of each claim are identical, the question whether Farmland (and thus RFLI) was injured by the Defendants -- as well as the follow-on questions of when, and where, and how -- are also part of the factual predicate of RFLI's claims made. RFLI's claims here therefore do not depend on only a different cause of action (the Kansas Restraint of Trade Act), they also depend on proof of different facts to establish a different injury: The terms of Farmland's physical gas contracts, the effect of the Defendants' alleged misconduct on the performance and prices of the physical contracts, and the measure of Farmland's losses on the physical contracts due to their alleged misconduct, are all facts which RFLI must prove in this action and which would have been unnecessary in the NYMEX Action. At oral argument, the Defendants argued that the identical factual predicate rule was not violated because any injury Farmland suffered on its physical contracts was offset by its hedging through NYMEX contracts. However, the Court finds, the testimony upon which the Defendants rely indicates that Farmland's hedging did not always offset its losses on its physical purchases "to the penny." In support of their motion for summary judgment, the Defendants submitted the testimony of Farmland's Rule 30(b)(6) deponent. Moreover, whether the NYMEX claims and the instant claims share an identical factual predicate is a purely legal question; the Court needs not look beyond the complaints in each action to determine that they do not. Therefore, the Defendants were not entitled to judgment as a matter of law on their affirmative defense of release, and the district court erred in granting their motion for summary judgment. In light of its conclusion that enforcing the NYMEX Releases to bar RFLI's instant claims violated the identical factual predicate rule, the Court does not reach RFLI's remaining claims. Accordingly, it reversed and remanded the case. A full-text copy of the Court's March 27, 2018 Memorandum is available at https://is.gd/40X28I from Leagle.com. Asbestos Litigation ASBESTOS UPDATE: SPX Had $641.2MM Asbestos Liability at Dec. 31 --------------------------------------------------------------- SPX Corporation recorded US$641.2 million for asbestos product liability matters at December 31, 2017, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "Numerous claims, complaints, and proceedings arising in the ordinary course of business have been asserted or are pending against us or certain of our subsidiaries (collectively, "claims"). These claims relate to litigation matters (e.g., class actions and contracts, intellectual property, and competitive claims), environmental matters, product liability matters (predominately associated with alleged exposure to asbestos-containing materials), and other risk management matters (e.g., general liability, automobile, and workers' compensation claims). Periodically, claims, complaints and proceedings arising other than in the ordinary course of business have been asserted or are pending against us or certain of our subsidiaries (e.g. patent infringement and disputes with subsidiary shareholder(s)). From time to time, we face actions by governmental authorities, both in and outside the United States. Additionally, we may become subject to other claims of which we are currently unaware, which may be significant, or the claims of which we are aware may result in our incurring significantly greater loss than we anticipate. Our insurance may be insufficient or unavailable (e.g., because of insurer insolvency) to protect us against potential loss exposures. "Our recorded liabilities related to these matters totaled US$685.7 million (including US$641.2 million for asbestos product liability matters) and US$653.5 million (including US$605.6 million for asbestos product liability matters) at December 31, 2017 and 2016, respectively. The liabilities we record for these claims are based on a number of assumptions, including historical claims and payment experience and, with respect to asbestos claims, actuarial estimates of the future period during which additional claims are reasonably foreseeable. While we base our assumptions on facts currently known to us, they entail inherently subjective judgments and uncertainties. As a result, our current assumptions for estimating these liabilities may not prove accurate, and we may be required to adjust these liabilities in the future, which could result in charges to earnings. These variances relative to current expectations could have a material impact on our financial position and results of operations. "We have recorded insurance recovery assets associated with the asbestos product liability matters, with such amounts totaling US$590.9 million and US$564.4 million at December 31, 2017 and 2016, respectively. These assets represent amounts that we believe we are or will be entitled to recover under agreements we have with insurance companies. The assets we record for these insurance recoveries are based on a number of assumptions, including the continued solvency of the insurers, and are subject to a variety of uncertainties. Our current assumptions for estimating these assets may not prove accurate, and we may be required to adjust these assets in the future, which could result in additional charges to earnings. These variances relative to current expectations could have a material impact on our financial position and results of operations." A full-text copy of the Form 10-K is available at https://is.gd/vq9y3X ASBESTOS UPDATE: Alleghany Has $154-Mil. Net Loss, LAE Reserves --------------------------------------------------------------- Alleghany Corporation has US$154.0 million net loss and loss adjustment expenses (LAE) reserves for asbestos-related illness and environmental impairment liabilities as of December 31, 2017, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "Our reinsurance and insurance subsidiaries' reserves for loss and LAE include amounts for risks relating to asbestos-related illness and environmental impairment. The reserves carried for such claims, including the reserves for loss and LAE incurred but not yet reported, or "IBNR," claims, are based upon known facts and current law at the respective balance sheet dates. However, significant uncertainty exists in determining the amount of ultimate liability for asbestos-related illness and environmental impairment losses. This uncertainty is due to, among other reasons, inconsistent and changing court resolutions and judicial interpretations with respect to underlying policy intent and coverage and uncertainties as to the allocation of responsibility for resultant damages. Further, possible future changes in statutes, laws, regulations, theories of liability and other factors could have a material effect on these liabilities and, accordingly, future earnings. Although we are unable at this time to determine whether additional reserves, which could have a material adverse effect upon our results of operations, may be necessary in the future, we believe that our asbestos-related illness and environmental impairment reserves were adequate as of December 31, 2017. "On November 30, 2015, TransRe entered into a commutation and release agreement with AIG Property Casualty, Inc., National Indemnity Company and Resolute Management, Inc. with respect to certain reinsurance contracts, or the "Commutation Agreement," including contracts covering asbestos-related illness and environmental impairment liabilities for 1986 and prior years, or the "Commuted A&E Liabilities." Pursuant to the Commutation Agreement, TransRe made a settlement payment of US$400.0 million in 2015 to terminate certain liabilities and obligations, including for the Commuted A&E Liabilities, which eliminated the vast majority of its asbestos-related illness and environmental impairment loss and LAE reserves. "At December 31, 2017 and December 31, 2016, the reserves for asbestos-related illness liabilities were approximately eight and nine times, respectively, the average paid claims for the respective prior three year period. At December 31, 2017 and December 31, 2016, the reserves for environmental impairment liabilities were approximately six and five times, respectively, the average paid claims for the respective prior three year period." A full-text copy of the Form 10-K is available at https://is.gd/R6rgPD ASBESTOS UPDATE: AMETEK Still Defends Asbestos Suits at Dec. 31 --------------------------------------------------------------- AMETEK, Inc. continues to defend itself against a number of asbestos-related lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the For the fiscal year ended December 31, 2017. AMETEK states, "The Company (including its subsidiaries) has been named as a defendant in a number of asbestos-related lawsuits. Certain of these lawsuits relate to a business which was acquired by the Company and do not involve products which were manufactured or sold by the Company. In connection with these lawsuits, the seller of such business has agreed to indemnify the Company against these claims (the "Indemnified Claims"). "The Indemnified Claims have been tendered to, and are being defended by, such seller. The seller has met its obligations, in all respects, and the Company does not have any reason to believe such party would fail to fulfill its obligations in the future. "To date, no judgments have been rendered against the Company as a result of any asbestos-related lawsuit. The Company believes that it has good and valid defenses to each of these claims and intends to defend them vigorously." A full-text copy of the Form 10-K is available at https://is.gd/G2web4 ASBESTOS UPDATE: CenterPoint Energy Expects More Asbestos Claims ---------------------------------------------------------------- CenterPoint Energy Resources Corp. said in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that additional asbestos-related claims "may be asserted in the future." The Company states, "Some facilities owned by CERC or its predecessors in interest contain or have contained asbestos insulation and other asbestos-containing materials. CERC and its predecessor companies are from time to time named, along with numerous others, as defendants in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos, and CERC anticipates that additional claims may be asserted in the future. "Although their ultimate outcome cannot be predicted at this time, CERC does not expect these matters, either individually or in the aggregate, to have a material adverse effect on its financial condition, results of operations or cash flows." A full-text copy of the Form 10-K is available at https://is.gd/oDyPX6 ASBESTOS UPDATE: WR Grace Had $25.8-Mil. Libby Costs at Dec. 31 --------------------------------------------------------------- W. R. Grace & Co. had total estimated liability of US$25.8 million at December 31, 2017, for response costs related to a vermiculite mine and surrounding area in Libby, Montana, as well as at vermiculite processing sites outside of Libby, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "Grace purchased a vermiculite mine in Libby, Montana, in 1963 and operated it until 1990. Vermiculite concentrate from the Libby mine was used in the manufacture of attic insulation and other products. Some of the vermiculite ore contained naturally occurring asbestos. "Grace is engaged with the U.S. Environmental Protection Agency (the "EPA") and other federal, state and local governmental agencies in a remedial investigation and feasibility study ("RI/FS") of the Libby mine and the surrounding area. In its 2017 Annual Project Update for the Libby Asbestos Superfund Site, the EPA announced a narrowing of its focus from the former "OU3 Study Area" to a smaller Operable Unit 3 ("OU3"). Within this revised area, the RI/FS will determine the specific areas requiring remediation and will identify possible remedial action alternatives. Possible remedial actions within OU3 are wide- ranging, from institutional controls such as land use restrictions, to more active measures involving soil removal, containment projects, or other protective measures. Based on communications from regulatory agencies, Grace expects the RI/FS and a record of decision to be completed by the end of 2019. When meaningful new information becomes available, Grace will reevaluate estimated liability for the costs for remediation of the mine and surrounding area and adjust its reserves accordingly. "The EPA is also investigating or remediating formerly owned or operated sites that processed Libby vermiculite into finished products. Grace is cooperating with the EPA on these investigation and remediation activities and has recorded a liability to the extent that its review has indicated that a probable liability has been incurred and the cost is estimable. These liabilities cover the estimated cost of investigations and, to the extent an assessment has indicated that remediation is necessary, the estimated cost of response actions. Response actions typically involve soil excavation and removal, and replacement with clean fill. The EPA may commence additional investigations in the future at other sites that processed Libby vermiculite, but Grace does not believe, based on its knowledge of prior and current operations and site conditions, that liability for remediation at such other sites is probable. "Grace accrued US$9.5 million, US$24.8 million, and US$6.0 million in 2017, 2016, and 2015, respectively, for future costs related to vermiculite-related matters. More than half of the 2016 amount was for the completion of the RI/FS of the Libby mine and surrounding area, which is expected to be spent over the next two years. Grace's total estimated liability for response costs that are currently estimable for the Libby mine and surrounding area, and at vermiculite processing sites outside of Libby at December 31, 2017 and 2016, was US$25.8 million and US$31.2 million, respectively. It is probable that Grace's ultimate liability for these vermiculite-related matters will exceed current estimates by material amounts." A full-text copy of the Form 10-K is available at https://is.gd/X9vMC8 ASBESTOS UPDATE: Curtiss-Wright Still Defends Suits at Dec. 31 -------------------------------------------------------------- Curtiss-Wright Corporation continues to defend itself against asbestos-related injury lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "We have been named in pending lawsuits that allege injury from exposure to asbestos. To date, we have not been found liable or paid any material sum of money in settlement in any case. We believe that the minimal use of asbestos in our past operations and the relatively non-friable condition of asbestos in our products make it unlikely that we will face material liability in any asbestos litigation, whether individually or in the aggregate. We maintain insurance coverage for these potential liabilities and we believe adequate coverage exists to cover any unanticipated asbestos liability." A full-text copy of the Form 10-K is available at https://is.gd/NJzgiS ASBESTOS UPDATE: Harsco Corp. Had 17,144 PI Lawsuits at Dec. 31 --------------------------------------------------------------- Harsco Corporation still defends itself against 17,144 pending asbestos personal injury actions at December 31, 2017, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Harsco Corp. states, "The Company is named as one of many defendants (approximately 90 or more in most cases) in legal actions in the U.S. alleging personal injury from exposure to airborne asbestos over the past several decades. In their suits, the plaintiffs have named as defendants, among others, many manufacturers, distributors and installers of numerous types of equipment or products that allegedly contained asbestos. "The Company believes that the claims against it are without merit. The Company has never been a producer, manufacturer or processor of asbestos fibers. Any asbestos-containing part of a Company product used in the past was purchased from a supplier and the asbestos encapsulated in other materials such that airborne exposure, if it occurred, was not harmful and is not associated with the types of injuries alleged in the pending actions. "At December 31, 2017, there were 17,144 pending asbestos personal injury actions filed against the Company. Of those actions, 16,742 were filed in the New York Supreme Court (New York County), 110 were filed in other New York State Supreme Court Counties and 292 were filed in courts located in other states. "The complaints in most of those actions generally follow a form that contains a standard damages demand of US$20 million or US$25 million, regardless of the individual plaintiff's alleged medical condition, and without identifying any specific Company product. "At December 31, 2017, 16,712 of the actions filed in New York Supreme Court (New York County) were on the Deferred/Inactive Docket created by the court in December 2002 for all pending and future asbestos actions filed by persons who cannot demonstrate that they have a malignant condition or discernible physical impairment. The remaining 30 cases in New York County are pending on the Active or In Extremis Docket created for plaintiffs who can demonstrate a malignant condition or physical impairment. "The Company has liability insurance coverage under various primary and excess policies that the Company believes will be available, if necessary, to substantially cover any liability that might ultimately be incurred in the asbestos actions. The costs and expenses of the asbestos actions will be paid by the Company's insurers. "In view of the persistence of asbestos litigation in the U.S., the Company expects to continue to receive additional claims in the future. The Company intends to continue its practice of vigorously defending these claims and cases. At December 31, 2017, the Company has obtained dismissal in 27,943 cases by stipulation or summary judgment prior to trial. "It is not possible to predict the ultimate outcome of asbestos- related actions in the U.S. due to the unpredictable nature of this litigation, and no loss provision has been recorded in the Company's consolidated financial statements because a loss contingency is not deemed probable or estimable. Despite this uncertainty, and although results of operations and cash flows for a given period could be adversely affected by asbestos- related actions, the Company does not expect that any costs that are reasonably possible to be incurred by the Company in connection with asbestos litigation would have a material adverse effect on the Company's financial condition, results of operations or cash flows." A full-text copy of the Form 10-K is available at https://is.gd/EWgXsM ASBESTOS UPDATE: CenterPoint, Units Still Face Suits at Dec. 31 --------------------------------------------------------------- CenterPoint Energy Houston Electric, LLC and its subsidiaries continue to face claims and lawsuits related to asbestos matters, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "Some facilities owned by Houston Electric contain or have contained asbestos insulation and other asbestos- containing materials. CenterPoint Energy and its subsidiaries, including Houston Electric, are from time to time named, along with numerous others, as defendants in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos, and CenterPoint Energy anticipates that additional claims may be asserted in the future. Although their ultimate outcome cannot be predicted at this time, Houston Electric does not expect these matters, either individually or in the aggregate, to have a material adverse effect on its financial condition, results of operations or cash flows." A full-text copy of the Form 10-K is available at https://is.gd/DAuYW4 ASBESTOS UPDATE: Avon Defends Talc-Related Lawsuits at Dec. 31 -------------------------------------------------------------- Avon Products, Inc. is facing numerous personal injury lawsuits related to asbestos-contaminated talc products, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Avon Products states, "The Company has been named a defendant in numerous personal injury lawsuits filed in U.S. courts, alleging that certain talc products the Company sold in the past were contaminated with asbestos. Many of these actions involve a number of co-defendants from a variety of different industries, including manufacturers of cosmetics and manufacturers of other products that, unlike the Company's products, were designed to contain asbestos. "We believe that the claims against us are without merit. We are defending vigorously against these claims and will continue to do so. To date, there have been no findings of liability against the Company in any of these cases but we are unable to predict the ultimate outcome of each case. "Additional similar cases arising out of the use of the Company's talc products are reasonably anticipated. At this time, we are unable to estimate our reasonably possible losses. Also, in light of the litigation's inherent uncertainties, potential costs to litigate these cases are not known, but they may be significant, though some costs will be covered by insurance." A full-text copy of the Form 10-K is available at https://is.gd/tYP2Dq ASBESTOS UPDATE: Standard Motor Had $33.4MM Liability at Dec. 31 ---------------------------------------------------------------- Standard Motor Products, Inc.'s accrued asbestos liabilities amounted to US$33,376,000 as of December 31, 2017, according to the consolidated balance sheets in the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "We are responsible for certain future liabilities relating to alleged exposure to asbestos-containing products. In accordance with our accounting policy, our most recent actuarial study as of August 31, 2017 estimated an undiscounted liability for settlement payments, excluding legal costs and any potential recovery from insurance carriers, ranging from US$35.2 million to US$54 million for the period through 2060. Based on the information contained in the actuarial study and all other available information considered by us, we have concluded that no amount within the range of settlement payments was more likely than any other and, therefore, in assessing our asbestos liability we compare the low end of the range to our recorded liability to determine if an adjustment is required. "Based upon the results of the August 31, 2017 actuarial study, in September 2017 we increased our asbestos liability to US$35.2 million, the low end of the range, and recorded an incremental pre-tax provision of US$6 million in earnings (loss) from discontinued operations in the accompanying statement of operations. In addition, according to the updated study, future legal costs, which are expensed as incurred and reported in earnings (loss) from discontinued operations in the accompanying statement of operations, are estimated to range from US$44.3 million to US$79.6 million for the period through 2060. "We will continue to perform an annual actuarial analysis during the third quarter of each year for the foreseeable future. Based on this analysis and all other available information, we will continue to reassess the recorded liability and, if deemed necessary, record an adjustment to the reserve, which will be reflected as a loss or gain from discontinued operations." A full-text copy of the Form 10-K is available at https://is.gd/sRoRG7 ASBESTOS UPDATE: Standard Motor Had 1,530 Fibro Cases at Dec. 31 ---------------------------------------------------------------- Approximately 1,530 asbestos-related cases were outstanding at December 31, 2017, for which Standard Motor Products, Inc., may be responsible for any related liabilities in connection to its former brake business, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Company states, "In 1986, we acquired a brake business, which we subsequently sold in March 1998 and which is accounted for as a discontinued operation. When we originally acquired this brake business, we assumed future liabilities relating to any alleged exposure to asbestos-containing products manufactured by the seller of the acquired brake business. In accordance with the related purchase agreement, we agreed to assume the liabilities for all new claims filed on or after September 2001. Our ultimate exposure will depend upon the number of claims filed against us on or after September 2001 and the amounts paid for indemnity and defense thereof. At December 31, 2017, approximately 1,530 cases were outstanding for which we may be responsible for any related liabilities. Since inception in September 2001 through December 31, 2017, the amounts paid for settled claims are approximately US$23.8 million. "In evaluating our potential asbestos-related liability, we have considered various factors including, among other things, an actuarial study of the asbestos related liabilities performed by an independent actuarial firm, our settlement amounts and whether there are any co-defendants, the jurisdiction in which lawsuits are filed, and the status and results of settlement discussions. As is our accounting policy, we consider the advice of actuarial consultants with experience in assessing asbestos-related liabilities to estimate our potential claim liability. The methodology used to project asbestos-related liabilities and costs in our actuarial study considered: (1) historical data available from publicly available studies; (2) an analysis of our recent claims history to estimate likely filing rates into the future; (3) an analysis of our currently pending claims; and (4) an analysis of our settlements to date in order to develop average settlement values." A full-text copy of the Form 10-K is available at https://is.gd/sRoRG7 ASBESTOS UPDATE: Denial of Cuellar's Bid to Withdraw Plea Upheld ---------------------------------------------------------------- In the appealed case the People, Plaintiff and Respondent, v. Joseph Cuellar, Defendant and Appellant, No. F073511, (Cal. Ct. App. 5th), the Court of Appeals of California for the Fifth District affirms the judgment of the trial court denying Appellant Joseph Cuellar's motion to withdraw negotiated plea. On November 19, 2010, the grand jury of Merced County returned a 67-count indictment against Appellant Joseph Cuellar and two other individuals, Rudy Buendia III, and Patrick Bowman. The indictment generally alleged that Appellant was a principal officer in a non-profit organization, Firm Build, which had accepted public funds and failed to pay numerous contractors and subcontractors for work performed. It was alleged that Appellant had exposed minors to hazardous waste (asbestos), and Appellant had improperly removed and handled asbestos. He was accused of embezzlement, conspiracy, and failure to pay unemployment taxes to the State of California. On March 4, 2013, Appellant entered a guilty plea in a companion federal matter stemming from the handling of asbestos at a vocational training site. He received a sentence of 27 months in federal prison. On May 17, 2013, Appellant entered a negotiated change of plea to resolve this criminal matter. He pleaded no contest to three charges: (1) felony improper handling of hazardous waste; (2) felony diversion of construction funds; and (3) felony willful failure to file payroll taxes. He received an aggregate prison term of three years eight months, which was to run concurrently to a related federal prison sentence. Appellant read and signed an advisement of rights, waiver and plea form for felonies -- the Plea Form -- which contained numerous boxes, each containing specific advisements. Appellant initialed many of those boxes, including those confirming his understanding that he was giving up his constitutional rights to a jury trial, the right to confront and cross-examine all witnesses against him, and the right to present evidence in his own defense. He agreed he had enough time to discuss his case with his attorney and they had discussed his constitutional and statutory rights. He agreed to waive and give up his constitutional and statutory rights regarding the charges to which he was entering a plea of no contest. He understood that he "may be ordered" to pay restitution. Appellant's defense counsel, Douglas Foster, signed the Plea Form, indicating he had reviewed it with Appellant, had explained each of his rights, and answered all of Appellant's questions with regard to this plea. He stipulated "that there is a factual basis for this plea." After entering his negotiated plea agreement in this matter, Appellant hired new counsel -- Anthony Capozzi -- who then filed a motion to withdraw the plea. Appellant generally testified that he had not understood the Plea Form when he reviewed it with Foster because they went over everything very quickly. According to Appellant, Foster had not explained what everything meant, Foster had not reviewed his constitutional and statutory rights, and they had not discussed potential defenses. Appellant said he initialed the Plea Form because Foster was "guiding" him and he had relied on the advice of counsel. The trial court denied that motion. Appellant's sole issue on appeal is whether the trial court abused its discretion in denying Appellant's motion to withdraw his plea. He argues the trial court erred, claiming his plea was not knowing, voluntary and intelligent. Appellant claims that his memory issues and depression rendered his change of plea involuntary. In denying his motion, the trial court found that Appellant had been under a lot of stress during this criminal procedure and during the change of plea process, but that there was no agreement among the medical professionals regarding Appellant's condition. The trial court found that Appellant had "memory problems." Although the trial court found that Appellant had memory problems, the Appellate Court determines that the trial court's denial of Appellant's motion was not an abuse of discretion. The Appellate Court notes that the examining psychiatrists and psychologists did not agree on Appellant's mental and emotional condition. As the trial court noted, three of the four evaluators believed that Appellant was not suffering from dementia or Alzheimer's disease. One of the psychiatrists, A.A. Howsepian, M.D., Ph.D., opined that Appellant was competent to have accepted the plea agreement and to have signed and initialed the Plea Form on May 17, 2013. In contrast, the other psychiatrist, Howard Terrell, M.D., believed "it much more likely than not" that Appellant was unable to comprehend adequately the nature of the plea bargain offer. Thus, the Appellate Court finds that the reports from the medical professionals, including Appellant's memory problems, do not establish by clear and convincing evidence that Appellant's change of plea was not knowing, voluntary and intelligent. The Appellate Court also disagrees with Appellant's claim that his plea was involuntary because the process was rushed or his review with counsel was abbreviated. Although the Appellate Court cannot determine from the record the exact amount of time Appellant discussed the eventual plea agreement with Foster, Appellant, however, appeared in state court on the day of his plea with the understanding he would settle this matter. The grand jury returned its indictment against Appellant on November 19, 2010. The Appellate Court points out that the Appellant had at least two and a half years to contemplate the nature and validity of the charges against him prior to entering his plea on May 17, 2013. Appellant had received earlier offers to settle this matter, which he rejected. He was represented by legal counsel at all times and Foster testified that they met regularly. While it is true that Appellant had a short time to consider his plea, the Appellate Court, however, finds that Appellant informed the trial court that his plea was voluntary and he agreed that he had received sufficient time to discuss the plea with his counsel. He knew that a plea in this matter was connected to the federal case, and he knew his sentence in this matter would be less than his federal sentence of 27 months in prison. Moreover, the Appellate Court disagrees with Appellant's position that his change of plea was involuntary because of coercion by his co-defendants. Based on the record, the Appellate Court finds unpersuasive Appellant's assertion that his change of plea was made involuntary because of his codefendants. The Appellate Court explains that package offers among multiple co-defendants are valid so long as their terms are not coercive. There is no evidence that Appellant entered his change of plea because of a promise of leniency to a third party since nothing suggests that Appellant and his co-defendants held a "special relationship" that might make his change of plea involuntary. Appellant also asserts that Foster rendered ineffective assistance of counsel by failing to inform him that additional restitution would be ordered in this matter. He contends this constituted good cause to withdraw his plea. The Appellate Court explains that to challenge a guilty plea on the ground of ineffective assistance of counsel, "a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." Here, although the amount of restitution ordered in the related federal matter was very high, and a shock to all involved parties, the Appellate Court finds nothing which establishes that Foster acted incompetently in this matter. It was understood that any restitution in this matter would not duplicate the restitution ordered in the federal case. Appellant acknowledged in the Plea Form that he could be ordered to pay restitution in this matter. Foster advised Appellant that he would request a restitution hearing if needed. Appellant testified that he had no discussion with Foster regarding restitution in this matter. Foster, however, said he discussed each of the advisements in the Plea Form, including restitution. The Appellate Court says that the trial court was entitled to accept Foster's version of events because it is clear that restitution was addressed in the Plea Form, and Appellant initialed and signed that document after reviewing it with Foster. Consequently, since Appellant has not met his burden of establishing that Foster failed to act competently regarding restitution or in giving advice about restitution, Appellant's ineffective assistance of counsel claim must fail. A copy of the Opinion dated May 4, 2018, is available at https://tinyurl.com/y9gj22g3 from Leagle.com. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Keith P. Sager, for Plaintiff and Respondent. ASBESTOS UPDATE: ZAIC Has Right to Seek Contribution from INA ------------------------------------------------------------- The Hon. Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri, upon consideration on Zurich American Insurance Company's motion to reconsider, has vacated the Memorandum and Order she issued in in the case styled Zurich American Insurance Company, Plaintiff, v. Insurance Company of North America, et al., Defendants, Case No. 4:14 CV 1112 CDP, (E.D. Mo.) on November 15, 2016, except the grant of Pacific Employers Insurance Company's Motion to Dismiss Party Pursuant to Joint Stipulation, and dismisses Anheuser-Busch, LLC from this case. In 2008, the estate of the wife of a former Anheuser-Busch, LLC, employee filed a wrongful death suit against Anheuser-Busch, alleging that the decedent wife contracted mesothelioma as a result of her husband's exposure to asbestos during his employment as a mechanic with Anheuser-Busch, and her subsequent laundering of his work clothes. Anheuser-Busch tendered defense of this suit to insurer Zurich American Insurance Company (ZAIC), who agreed to provide Anheuser-Busch with a defense subject to a reservation of rights. The parties settled during a 2014 mediation for $1.5 million -- an amount all parties stipulate was reasonable. ZAIC paid the full amount of the settlement and defense costs. During the multi-year period of the claimant's alleged asbestos exposure, Anheuser-Busch was consecutively insured by ZAIC and by defendant Insurance Company of North America (INA). Because ZAIC paid the full amount of the settlement, it brought this suit for equitable contribution, subrogation, and unjust enrichment against the other insurer, INA, and against its insured, Anheuser-Busch. Both the ZAIC policies and the INA policies have "all sums" provisions and cover damage that "occurs during the policy period." The dispute over which insurer must pay arises because asbestos exposure occurred during the policy periods of both insurers. In ruling on summary judgment, the Court predicted that Missouri courts considering the insurance contract provisions in this case would apply a "pro rata" loss allocation, based on each insurance company's "time on the loss." Pursuant to its November 15, 2016 Memorandum and Order, the Court granted summary judgment to INA because, when the losses were allocated over the various policy years, Anheuser-Busch's deductibles under the INA policies exceeded the amount of the loss that INA would otherwise have had to pay for those years. The Court denied summary judgment for Anheuser-Busch, reasoning that ZAIC should be able to seek contribution from Anheuser-Busch for those amounts ZAIC could have sought as equitable contribution from INA but for the deductibles. Had Anheuser-Busch target-tendered INA instead of ZAIC, of course, Anheuser-Busch would have been responsible for those deductibles. ZAIC has requested that the court reconsider and set aside its November 2016 Order based on Rule 54(b), Fed. R. Civ. P., and the intervening developments in Missouri law on loss allocation from Nooter Corp. v. Allianz Underwriters Ins. Co., 536 S.W.3d 251 (Mo. Ct. App. 2017). ZAIC now asks the Court reconsider the dismissal of INA from this case, relying on Nooter's discussion of an insurer's right to "seek contribution from other triggered insurers." INA opposes reconsideration and contends that the legal standard for a motion to reconsider cannot be met because ZAIC "does not argue that there was any manifest error of fact and offers no newly discovered evidence." However, the Court overrules INA's argument, explaining that the final judgment has not yet been entered in this case, and under Rule 54(b) the Court have the discretionary authority to review and set aside its interlocutory summary judgment ruling in the interests of justice considering Nooter's intervening clarification of Missouri insurance law. Based on Nooter, the Court finds that the Missouri Supreme court would apply an "all sums" method to allocate the settlement loss here between insured Anheuser-Busch and targeted-insurer ZAIC. Under that method, targeted-insurer ZAIC is liable for insured Anheuser-Busch's entire loss and may seek contribution from other triggered insurers. Because the November 2016 Order dismissing INA incorrectly applied a "pro rata" allocation method to apportion the loss across the entire period of asbestos exposure, justice requires that it be set aside. The Court agrees with Anheuser-Busch argument that ZAIC's equitable claims against it must be denied because the requirement that ZAIC pay "all sums" is part of the contract between ZAIC and Anheuser-Busch, and that a party cannot avoid a contractual obligation by seeking equitable contribution. The Court maintains that although ZAIC paid the loss and may now seek contribution from "other triggered insurers," ZAIC has no claim for recovery from Anheuser-Busch. Nooter forecloses any recoupment by targeted-insurer ZAIC from its insured Anheuser- Busch, because ZAIC is liable for the "entire loss." Equitable contribution and subrogation are appropriate remedies where fairness dictates it. There is no unfairness here between ZAIC and Anheuser-Busch because the "all sums" contract requires ZAIC to cover the entire loss. The Court explains that whether or not ZAIC obtains contribution from INA does not change ZAIC's obligation to Anheuser-Busch. Missouri law does not allow an insurer such as ZAIC to avoid its obligations under the policy to its insured, and so ZAIC cannot seek equitable contribution from Anheuser-Busch for any period of the underlying asbestos injury, including: any period where Anheuser-Busch was uninsured, where insurer ZAIC was not on the risk, or where no insurer-insured relationship existed between ZAIC and Anheuser-Busch. No matter what portion of the settlement and defense costs may or may not ultimately be apportioned to INA, ZAIC has no claim against its insured Anheuser-Busch. Thus, the Court has dismissed Anheuser-Busch from this case. The Court grants the request of both ZAIC and INA to further brief the issue on "whether ZAIC can obtain contribution from INA" in light of Nooter and the dismissal of insured Anheuser- Busch from this case. The Court has set these schedules: (a) additional motions for summary judgment by either party must be filed no later than June 11, 2018.; (b) opposition briefs must be filed no later than July 13, 2018; and (c) any reply brief may be filed no later than July 25, 2018. A copy of the Memorandum and Order dated May 8, 2018, is available at https://tinyurl.com/y9b4uuno from Leagle.com. Zurich American Insurance Company, Plaintiff, represented by Russell F. Watters -- rwatters@bjpc.com -- Brown and James, P.C., T. Michael Ward -- mward@bjpc.com -- Brown and James, P.C. & Joseph Michael Morris -- jmorris@bjpc.com -- Brown and James, P.C. Insurance Company of North America, Defendant, represented by Alan K. Goldstein, Goldstein and Price, L.C. & Stephen C. Ascher, Cohn and Baughman. ASBESTOS UPDATE: Judge OKs Application of Maine Law in "Burleigh" ----------------------------------------------------------------- The Hon. Marianne B. Bowler of the United States District Court for the District of Massachusetts allows the application of Maine Law in the asbestos product liability and personal injury action titled Ruth Burleigh, as Personal Representative of the Estate of Ernest Burleigh, Plaintiff, v. Alfa Laval, Inc., et al., Defendants, Civil Action No. 16-11030-RGS, (D. Mass.). Seeking to apply Maine Law, Electric Corporation identifies various conflicts with Maine Law including caps on damages and the burden of proof in a wrongful death claim. Defendant General Electric Corporation seeks to apply Maine law to a number of substantive issues, which include the reduction of the amount paid by a joint and severally liable, settling defendant from the amount of a non-settling defendant's share of adjudicated damages based on the settling defendant's proportionate degree of fault under Maine law. Electric Corporation's position that Maine law always requires a reduction based on proportionate fault as opposed to the dollar amount of the settlement, which is not entirely accurate. Plaintiff Ruth Burleigh, as personal representative of the estate of Ernest Burleigh, maintains that Massachusetts law applies to the issues regarding the wrongful death claim. The statutory right of contribution in Massachusetts "does not distinguish between intentional torts and negligence." In addition, Massachusetts' regime of joint and several liability allows "a plaintiff injured by more than one tortfeasor" to "sue any or all of them for his full damages." Tortfeasors who pay more than their 'pro rata' share of damages may seek contribution "from other joint tortfeasors," but tortfeasors who settle with the plaintiff prior to entry of judgment are insulated from claims for contribution from the remaining defendants (who are then entitled to a setoff in the judgment equal to the settlement amount), or the amount stipulated by the release, whichever is greater. The fact finder does not assess the percentage of fault of the non-party tortfeasors. Maine limits the amount of punitive damages in a wrongful death action to $250,000. Maine also caps the amount of non-economic, compensatory damages in a wrongful death action at $500,000. In contrast, the Massachusetts wrongful death statute has no monetary limitations. Maine's wrongful death statute also imposes a higher standard of liability and burden of proof than Massachusetts' wrongful death statute. Specifically, Maine law allows recovery of punitive damages if the plaintiff establishes by clear and convincing evidence that the defendant acted with malice. On the other hand, Massachusetts' wrongful death statute provides for the recovery of punitive damages upon a lesser showing of gross negligence and a lower burden of proof than clear and convincing evidence. These differences in the wrongful death claim therefore warrant a choice of law analysis. As set out in the amended complaint, Plaintiff, the widow of Ernest Burleigh, alleges that Burleigh died in July 2016 of mesothelioma as a result of exposure to asbestos while working as a mechanic at the Portsmouth Naval Shipyard from 1960 to 1981. Prior to working in North Carolina, Burleigh worked in Maine at a movie theater, a service station, a shoe factory where he did not work in the vicinity of insulated piping, a textile mill, a motor company changing oil and greasing cars, and another motor company as a car salesman. In North Carolina, he worked at a textile mill "as a loom fixer." Upon his return to Maine in 1959, he worked briefly at a few other jobs, including one in New Hampshire for three months, before beginning work at the shipyard in July 1960. He worked at the shipyard from 1960 until his retirement in 1994. The shipyard is located in Kittery, Maine, approximately 20 miles from the Massachusetts border. During this time period, General Electric designed and supplied steam turbines to the shipyard for a number of the submarines where Burleigh worked. General Electric factories in Lynn and Fitchburg, Massachusetts manufactured all of General Electric's marine steam turbines during the relevant time period. The United States Navy initially supplied General Electric with specifications for the design of a steam turbine tailored for a particular ship. "Once the design was complete and approved, then General Electric would commence the manufacture, order materials," and then produce and assemble the turbine in one of the two Massachusetts factories. After assembling the turbine, General Electric tested "the turbine with steam and speed" to ensure it met the design specifications. Thereafter, General Electric disassembled the turbine and shipped it from the Massachusetts factory to either a Navy storage facility or a Navy shipyard. In balancing the Restatement of Conflict of Laws, the courts should consider various contacts, including: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. The Court determines that Maine is the place of injury because it is the location of Burleigh's exposure to asbestos. It is also the place where he received the diagnosis. Indeed, plaintiff acknowledges that, "Maine is where Mr. Burleigh resided, and was injured and treated." In cases involving personal injuries, "the place where the injury occurred is a contact that, as to most issues, plays an important role." Moreover, the third contact weighs in favor of applying Maine law because Maine was Burleigh's domicile, residence, and place of business throughout the relevant time period and up until his death. General Electric's recent change of its primary place of business to Massachusetts does not override Burleigh's consistent and enduring presence and connection to Maine. It is true that General Electric's purportedly wrongful conduct in Massachusetts lends additional weight to General Electric's place of business contact in Massachusetts. The Court notes that the wrongful conduct of General Electric occurred primarily in Massachusetts where it designed, manufactured, and then shipped the turbines to the shipyard in Maine or a Navy storage facility. General Electric also applied the asbestos-containing gaskets to turbines in Massachusetts and then shipped the gaskets and the turbines to the shipyard in Maine or a Navy storage facility. It additionally shipped asbestos-containing packing and asbestos-containing gaskets as loose parts from Massachusetts to the shipyard or a Navy storage facility. Burleigh's workplace at the shipyard for more than two decades and his lifelong domicile and residence in Maine, however, carry greater weight when grouped with the place of injury in Maine than General Electric's wrongful conduct in Massachusetts when grouped with its principal place of business in that state. The law where the injury occurred carries even greater weight "when the injured person has a settled relationship to that state, either because he is domiciled or resides there or because he does business there." Conversely, the law of the place of injury might not play an important role "when the place of injury" is "fortuitous," such as in a car accident when the non- resident plaintiffs are "merely passing through" the state where the accident occurred. Here, the former principle applies. With the exception of four years in North Carolina and a short time working at a job in New Hampshire, Burleigh resided, lived, and worked in Maine. His settled relationship to Maine renders it all the more likely that Maine law applies. While it is also true that Massachusetts has an interest in holding its resident defendant accountable for its conduct that took place in Massachusetts and caused an injury to a Massachusetts resident, the Court maintains that the injury took place in Maine and involved a Maine resident, which reduces the comparative weight of Massachusetts' interest vis-a-vis Maine's interest in providing reasonable compensation for the wrongful death of a Maine resident injured at his workplace in Maine. Further, Burleigh's beneficiary is herself a longtime Maine resident. General Electric and Plaintiff agree that General Electric is a New York corporation with a principal place of business in Massachusetts. The amended complaint alleges that Crane is a Delaware corporation with a principal place of business in Connecticut and Crane describes itself as "a Connecticut based company." Warren is purportedly a Delaware corporation with a principal place of business in Massachusetts. The remaining joint and several liability issues relative to contribution implicate the apportionment of liability and amount of damages between the remaining defendants (General Electric, Crane, and Warren) and potentially the settling defendants, particularly in the event Maine law applies. Section 173 of the Restatement dictates that section 145 "determines whether one tortfeasor has a right of contribution or indemnity against another tortfeasor." Contacts consisting of the place of the injury and the domicile, residence, and workplace in Maine create the justified expectation that Maine law would apply. Certainty, predictability, and uniformity are well served by applying the law of the place of the injury. As urged by the remaining defendants, the Court therefore concludes that Maine law applies to the contribution issues at this point in the proceedings. A copy of the Memorandum and Order dated May 9, 2018, is available at https://tinyurl.com/ybng2k8j from Leagle.com. Ruth Burleigh, as Personal Representative of the Estate of Ernest Burleigh, Plaintiff, represented by David A. Jagolinzer, The Ferraro Law Firm, P.A.. & James L. Ferraro, The Ferraro Law Firm, P.A., pro hac vice. General Electric Company, Defendant, represented by Anne E. Shannon -- ashannon@mccarter.com -- McCarter & English, LLP, Catherine Mohan -- cmohan@mccarter.com -- McCarter & English, LLP & Stesha A. Emmanuel -- semmanuel@mccarter.com -- McCarter & English, LLP. Crane Co., Defendant, represented by John P. Gardella, CMBG3 Law LLC & Seta Eskanian, CMBG3 Law LLC. Ingersoll-Rand Company, Defendant, represented by A. Bernard Guekguezian -- bguekguezian@adlercohen.com -- Adler, Cohen, Harvey, Wakeman & Guekguezian LLP & Alexander E. Terry -- aterry@adlercohen.com -- Adler, Cohen, Harvey, Wakeman & Guekguezian LLP. Warren Pumps, LLC, Defendant, represented by Maria E. DeLuzio -- mdeluzio@piercedavis.com -- Pierce, Davis & Perritano, LLP, Carlie S. Seigal -- cseigal@piercedavis.com -- Pierce, Davis & Perritano, LLP, Joel F. Pierce -- jpierce@piercedavis.com -- Pierce Davis & Perritano LLP, Judith A. Perritano -- jperritano@piercedavis.com -- Pierce, Davis & Perritano, LLP & Meghan L. Riordan -- mriordan@piercedavis.com -- Pierce, Davis & Perritano, LLP. General Electric Company, Cross Defendant, represented by Anne E. Shannon -- ashannon@mccarter.com -- McCarter & English, LLP, Catherine Mohan -- cmohan@mccarter.com -- McCarter & English, LLP & Stesha A. Emmanuel -- semmanuel@mccarter.com -- McCarter & English, LLP. General Electric Company, Cross Claimant, represented by Anne E. Shannon -- ashannon@mccarter.com -- McCarter & English, LLP, Catherine Mohan -- cmohan@mccarter.com -- McCarter & English, LLP & Stesha A. Emmanuel -- semmanuel@mccarter.com -- McCarter & English, LLP. Warren Pumps, LLC, Cross Defendant, represented by Maria E. DeLuzio -- mdeluzio@piercedavis.com -- Pierce, Davis & Perritano, LLP, Joel F. Pierce -- jpierce@piercedavis.com -- Pierce Davis & Perritano LLP, Judith A. Perritano -- jperritano@piercedavis.com -- Pierce, Davis & Perritano, LLP & Meghan L. Riordan -- mriordan@piercedavis.com -- Pierce, Davis & Perritano, LLP. Crane Co., Cross Defendant, represented by John P. Gardella, CMBG3 Law LLC. Ruth Burleigh, as Personal Representative of the Estate of Ernest Burleigh, Cross Defendant, represented by David A. Jagolinzer, The Ferraro Law Firm, P.A.. & James L. Ferraro, The Ferraro Law Firm, P.A. ASBESTOS UPDATE: "Mikelsen" Discovery Deadline Moved to June 13 --------------------------------------------------------------- In the case styled Alice Mikelsen, Surviving Spouse, and Susan Page, as Personal Representative for Arthur Melvin Mikelsen, Deceased, Plaintiffs, v. Air & Liquid Systems Corporation, et al., Defendants, No. 2:17-cv-00700-RSL, (W.D. Wash.), the Hon. Robert S. Lasnik of the U.S. District Court for the Western District of Washington, at the behest of Plaintiffs Alice Mikelsen and Susan Page, has extended the discovery deadline to June 13, 2018. A copy of the Order dated May 10, 2018, is available at https://tinyurl.com/y9by9na4 from Leagle.com. Alice Mikelsen, surviving spouse & Susan Page, as personal representative for Arthur Melvin Mikelsen, deceased, Plaintiffs, represented by Kristin M. Houser -- houser@sgb-law.com -- Schroeter Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb- law.com -- Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender, Elizabeth Jean McLafferty -- mclafferty@sgb-law.com -- Schroeter Goldmark & Bender & William Joel Rutzick, Schroeter Goldmark & Bender. Air & Liquid Systems Corporation, sued individually and as successor by merger to Buffalo Pumps, Inc., Defendant, represented by Alice Coles Serko -- aserko@tktrial.com -- Tanenbaum Keale LLP, Rachel Tallon Reynolds -- rachel.reynolds@bullivant.com -- Bullivant Houser Bailey, Mark B. Tuvim, GORDON REES SCULLY MANSUKHANI LLP & Barry Neal Mesher. Asbestos Corp., Ltd & Ingersoll-Rand Company, Defendants, represented by Kevin J. Craig -- kcraig@grsm.com -- Gordon Rees Scully Mansukhani LLP & Mark B. Tuvim -- mtuvim@grsm.com -- Gordon Rees Scully Mansukhani LLP. CBS Corporation, fka Viacom, Inc., successor by merger with CBS Corporation fka Westinghouse Electric Corporation & Foster Wheeler Energy Corporation, Defendants, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP. Crane Co, Defendant, represented by G. William Shaw -- bill.shaw@klgates.com -- K&L Gates LLP. General Electric Company, Defendant, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP & John Heller -- jheller@sidley.com -- Sidley Austin, pro hac vice. Goulds Pumps (IPG), Inc., Defendant, represented by Ronald C. Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc. PLLC. IMO Industries Inc, sued individually and as successor-in- interest to DeLaval Turbine, Inc., IMO DeLaval and C.H. Wheeler, Defendant, represented by James Edward Horne -- jhorne@gth- law.com -- Gordon Thomas Honeywell & Michael Edward Ricketts -- mricketts@gth-law.com -- Gordon Thomas Honeywell. Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran & Dickerson. Warren Pumps LLC, sued individually and as successor-in-interest to Quimby Pump Company, Defendant, represented by Allen Eraut -- aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC. ASBESTOS UPDATE: Co. No Duty to Protect from Secondary Exposure --------------------------------------------------------------- In the appealed case Ernest V. Quiroz and Mary Quiroz, Husband and Wife, Plaintiffs/Appellants, v. ALCOA Inc., ET AL., Defendants/Appellees. No. CV-16-0248-PR, (Ariz.), the Supreme Court of Arizona holds that an employer owed no duty to the public regarding secondary asbestos exposure because no common law special relationship existed requiring the employer to protect the public from secondary asbestos exposure. Ernest V. Quiroz died in October 2014 from mesothelioma, a form of cancer associated with exposure to asbestos. Quiroz's surviving wife, children, and parents filed a lawsuit, alleging Defendants Reynolds Metal Company, Alcoa, Inc., and Reywest Development Company negligently caused his death. Specifically, the Family alleges that when Quiroz's Father was working at Reynolds' plant from 1948 until 1983, his clothes were contaminated with asbestos fibers. The Family contends that when Father came home from work, Quiroz, who lived with Father as a minor from 1952 to 1970, was exposed to the asbestos fibers on Father's clothes. The Family further contends this exposure eventually caused Quiroz's mesothelioma. The Family asserts that Reynolds Metal had a duty to protect Quiroz from exposure to take-home asbestos. They contend Reynolds Metal breached this duty by failing to warn Father about the dangers of secondary asbestos exposure. The Family also alleges that Reynolds Metal failed to provide safety equipment to Father and failed to take necessary safety measures to protect Quiroz from such exposure. There is no dispute that Reynolds Metal, as Father's employer, owed a duty of care to Father. The Family argues, however, that there was a special relationship between Reynolds Metal and any member of the public, including Quiroz, who may have been exposed to secondary asbestos. Here, the Court finds no legally recognized special relationship giving rise to a duty between Reynolds Metal and Quiroz. Quiroz did not have an employer-employee relationship with Reynolds Metal, and there is no allegation that Reynolds Metal created a special relationship with Quiroz based on a contract or a negligent undertaking. Additionally, the Court holds that Reynolds Metal and Quiroz shared no relationship as landowner- invitee or landowner-licensee. Quiroz suffered no injury on Reynolds Metal property, nor was he injured while entering or leaving Reynolds Metal's property. Thus, the general duty proposed by the Family and the dissent surpasses the bounds of Arizona law. While case law recognizes that landowners may, in some circumstances, owe a duty of care for off-premises injuries, it does not support the Family's far more sweeping claim that landowners owe a general duty to the public for off-premises injuries. Indeed, none of the authorities cited by the Family or the dissent support the existence of such a broad duty. Duty is not presumed. Duty is a separate, material element of every negligence claim. It should not be effectively removed as an element by merging it with the broad terms of "negligence" and "liability." The Court explains that in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Duty in Arizona is based on either recognized common law special relationships or relationships created by public policy. Duties based on special relationships may arise from several sources, including special relationships recognized by the common law, contracts, or "conduct undertaken by the defendant." The Court further explains that unlike duties based on special relationships, duties based on public policy do not necessarily require preexisting relationships. Rather, the statute itself creates a legal relationship between the parties giving rise to a duty such as when a plaintiff "is within the class of persons to be protected by the statute and the harm that occurred. . . is the risk that the statute sought to protect against." While the Court recognizes public policy giving rise to a duty based on the common law -- specifically, case law and Restatement sections consistent with Arizona law. However, reliance on the common law does not mean that the Court establishes duties based on its own notions of appropriate public policy. Thus, even in those cases where the Court has mentioned "social concerns" in relation to tort duties, the Court has ultimately premised the existence of a duty on a statute or a recognized special relationship. But none of the cases cited by the Family or the dissent support their contention that Arizona, like the Third Restatement, presumes a duty when a defendant creates a risk of harm. The Family also conflates cases recognizing a duty based on a negligent undertaking with the Third Restatement's risk-creation framework. The Court explains that a duty based on a negligent undertaking does not arise solely because a defendant committed an act that might harm someone. Rather, a duty based on a negligent undertaking exists when a person, who otherwise owed no duty to plaintiff, voluntarily agrees to provide services for another person. Under such circumstances, the person assumes a duty to exercise reasonable care in providing those services. Accordingly, the Court concludes that the Family has failed to identify a valid public policy creating a legal relationship giving rise to a duty. As a result, although while the Court vacates the court of appeals' opinion because the Court disagree, in part, with its reasoning, and affirms the superior court's grant of summary judgment in favor of Reynolds Metal. A copy of the Opinion dated May 11, 2018, is available at https://tinyurl.com/y8arerkp from Leagle.com. Burt Rosenblatt -- burt@eburlaw.com -- Ely Bettini Ulman & Rosenblatt, Phoenix; Michael B. Gurien (argued), Waters, Kraus & Paul, El Segundo, CA, Attorneys for Ernest V. Quiroz and Mary Quiroz. Edward M. Slaughter (argued) -- eslaughter@hptylaw.com -- Hawkins Parnell Thackston & Young LLP, Dallas, Texas; Molly C. Machold, Mark B. Tuvim -- mtuvim@grsm.com -- Gordon & Rees LLP, Phoenix, Attorneys for Alcoa, Inc., et al. David L. Abney, (argued) Ahwatukee Legal Office, PC, Phoenix; Stanley G. Feldman -- sfeldman@mpfmlaw.com -- Miller, Pitt, Feldman & McAnally, P.C., Tucson, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association Ellen M. Bublick -- bublick@email.arizona.edu -- University of Arizona James E. Rogers College of Law, Tucson, Attorney for Amicus Curiae Elizabeth S. Fitch -- beth@righilaw.com -- Righi Fitch Law Group, PLLC, Phoenix, Attorney for Amicus Curiae Coalition for Litigation Justice, Inc. Christopher Robbins, Hill, Hall & DeCiancio, PLC, Phoenix, Attorney for Amicus Curiae Arizona Association of Defense Counsel Thomas E. Kelly, Jr. -- Tom.Kelly@klgates.com -- K&L Gates LLP, Seattle, WA, Attorney for Amicus Curiae Chamber of Commerce of the United States of America. ASBESTOS UPDATE: Claire's Ordered to Stop Selling Tainted Make-Up ----------------------------------------------------------------- State PIRGs reported that in the wake of a recent U.S. PIRG study showing that U.S.-based retailer Claire's is selling makeup contaminated with asbestos, a government agency in The Netherlands confirmed the results of U.S. PIRG's study. The Dutch Health and Safety Authority (ILT) ordered Claire's to remove several makeup products from Dutch store shelves after the agency's lab testing confirmed that there is asbestos in two makeup products. Following these findings and similar results by an agency in Brussels, the British government ordered that the asbestos- contaminated products be taken off the shelves in the U.K. and destroyed. Claire's also offered a refund to European customers who purchased the asbestos-containing items. A warning has been issued to all European Union countries about asbestos contamination in those two Claire's products. As of May 3, 2018, Claire's has not warned its U.S. customers about the asbestos-contaminated makeup, continues to deny that the makeup contains asbestos, and is not offering to refund customers who have purchased the makeup. At least two of these products, Claire's Compact Powder and Claire's Shadow and Highlight Finishing Kit, are still available on store shelves in the United States. "It is unconscionable that these products are still being sold to children here in the U.S., while they have been pulled from the shelves and destroyed in Europe." said Kara Cook-Schultz, U.S. PIRG's toxics director. "We have been doing our part to warn consumers about these products that contain asbestos, but for months Claire's has lied about this issue to its customers, and the FDA has failed to step in." Claire's claims on its website that the Dutch agency ILT certifies some Claire's products as free of asbestos, but it conveniently fails to mention that the Dutch ILT actually found Claire's had been illegally selling asbestos-containing makeup in The Netherlands. Worse, the U.S. Food & Drug Administration (FDA,) which is supposed to protect the public from dangers such as asbestos, may have delayed these European tests for months. On December 29, 2017, the Dutch Food and Consumer Product Safety Authority (NVWA) received a report that Claire's may be selling makeup with asbestos contamination. The NVWA decided not to test the products because, according to NVWA spokesman Benno Bruggink, the U.S. FDA assured the Dutch that the makeup was "in order." The Dutch announcement confirms U.S. PIRG Education Fund's study from March 13, 2018, which found asbestos contamination in three Claire's makeup products: Claire's Contour Palette, Claire's Shadow and Highlight Finishing Kit, and Claire's Compact Powder. Asbestos is not purposefully added to cosmetics. However, asbestos can occur naturally in talc, and talc is commonly added to cosmetics. Sparkly, shimmery, and powdery makeup often contains talc as a major ingredient. Inhaling or ingesting any form of asbestos can lead to serious health conditions, including lung cancer and mesothelioma. Repeated topical exposure to asbestos may also result in increased skin cancer risk. U.S. PIRG Education Fund alerted both Claire's and the FDA to our findings back in February, but neither the company nor the FDA has issued a recall in the U.S. While European teens are being protected by their government, American kids are still facing an unnecessary and avoidable risk. The FDA states that asbestos is a carcinogen, and that makeup companies should take steps to keep asbestos out of cosmetics. The FDA is currently performing an investigation into the presence of asbestos in Claire's makeup. The agency, however, has been slow to act or to publish the findings of its investigation. In the meantime, European agencies have acted swiftly to protect their citizens. ASBESTOS UPDATE: Report Finds Asbestos in Philly Schools -------------------------------------------------------- ABC27 reported that a newspaper investigation has found that more than half of Philadelphia's public elementary schools have serious environmental hazards like lead dust, mold spores and asbestos fibers. In a series, the Philadelphia Inquirer and Philadelphia Daily News said a review of building and other internal records identified more than 9,000 environmental problems across the district since September 2015. The papers say 80 of the city's 148 elementary schools had at least 50 reports of environmental hazards. The newspapers also enlisted staffers at some run-down elementary schools to do their own testing. High levels of cancer-causing asbestos fibers were found on surfaces in classrooms, gymnasiums, auditoriums and hallways. School officials took issue with their testing methods. They say it will take $3 billion over 10 years to build new schools and finish all urgent repairs. ASBESTOS UPDATE: Company Fined for Breach of Asbestos Notice ------------------------------------------------------------ Isle of Man Today reported that a property company has been fined after continuing to allow people to work in a building that contained asbestos. E & J Properties Ltd was slapped with the GBP3,000 fine during an appearance at Douglas Courthouse. Director Nigel Gill pleaded guilty, on behalf of the company, to contravening a prohibition notice between November 6 and November 20 last year. The court heard the company was carrying out construction work on a property on Chapel Lane in Baldrine when suspected asbestos was found in the roof of a garage. Workmen alerted the Health and Safety at Work Inspectorate and an inspector visited the site -- a voluntary cessation of work was agreed whilst the substance was tested. On November 6 investigations confirmed there was brown asbestos in the roof and a prohibition notice was served prohibiting anyone from entering or working in the area. However, prosecutor Rachael Braidwood told the court that despite the notice tradesmen continued to work on the property on two occasions. She added that both the foreman and Mr Gill later declined to attend interviews, under caution, with the Health and Safety at Work Inspectorate. E & J Properties Ltd was represented in court by advocate Peter Russell who said there had been two breaches of the prohibition order. The first, he claimed, was instructing and allowing electricians to mark the garage ceiling for new light fittings -- something he said had been done without Mr Gill's knowledge. The second was to allow someone into the garage to cut the holes into the ceiling for the lighting. 'Hard as it is to believe, Mr Gill does not know who drilled those six holes,' he said. Mr Russell told magistrates the work to convert the garage into living accommodation was a 'professionally thought out renovation'. He added: 'I wouldn't want your worships to think this was a bodge-it job.' He said since the incident new procedures and policies had been put into place, adding: 'Since this incident he [Mr Gill] has undergone full asbestos training and more is planned. 'All in all he's doing everything he can to make sure nothing like this ever happens again -- it's a one off.' Magistrates also ordered the company to pay prosecution costs of GBP250. A charge of failing to discharge duty was withdrawn. ASBESTOS UPDATE: Asbestos Found in Kusu Island Lagoon, Beach ------------------------------------------------------------ Channel News Asia reported that pieces of debris containing asbestos have been discovered around the lagoon and beach areas on Kusu Island, the Singapore Land Authority said on May 4. Public access to the affected areas have been cordoned off and will remain closed until removal works are completed, SLA said, adding that it aims to do this by October. ASBESTOS UPDATE: Co. Fined EUR50K for Exposing Workers ------------------------------------------------------ Bill Browne of The Corkman reported that the removal of the known carcinogenic asbestos from older buildings should only be undertaken by competent asbestos removal contractors prior to their demolition. That's according to a senior Health and Safety Authority (HSA) official who was commenting after a Cork company was hit with a EUR50,000 fine for exposing workers to asbestos fibres during demolition works at a Mallow office building. Leeside Cut & Core Contractors Ltd of Blackhill, Fivemile Bridge, Ballinhassig pleaded guilty to two charges at a sitting of Cork Circuit Criminal Court presided over by Judge Sean O Donnabhain. The case arose following demolition works in early 2015 at a two- story office building at Gould's Hill in Mallow that was built during the 1970's. The building had asbestos insulating board ceiling tiles containing amosite (brown asbestos) and chrysotile (white asbestos) on both ground and first floor. The floor tiles and bitumen also contained chrysotile. The court heard that between January 21 and February 6, 2016 employees of the company were involved in the demolition of stud wall partitions and block-work at the office building. As a result of these works being carried out in an uncontrolled manner damage was caused to the asbestos insulating board ceiling tiles, resulting in employees being exposed to asbestos fibres. The company pleaded guilty to offences before the court under the Safety, Health and Welfare at Work Act (2005) and a regulation of the Safety, Health and Welfare at Work (Exposure to Asbestos) regulations (2006 and 2010). The first of these related to the company's failure to manage the demolition work at the premises in circumstances where there were asbestos containing materials present in such a way as to ensure the safety, health and welfare of workers. This related to the demolition work being carried out in an uncontrolled fashion, causing damage to the asbestos ceiling and floor tiles and exposing employees to the risk of inhaling the asbestos fibres. The second charge related to the undertaking of work liable to expose employees to asbestos or materials containing asbestos where they had failed to undertake a risk assessment on the site. At a February sitting of Mallow District Court the client company in this Particular case, Mallow-based AV Pound and company Ltd, pleaded guilty to a single charge under the Safety, Health and Welfare at Work Act (failure of client to appoint in writing a competent Project Supervisor Design Process at or before start of design process.) They were fined EUR750 with EUR3,000 costs awarded. Commenting on the case, assistant HSA chief executive Sharon McGuinness said asbestos containing materials still remained a "significant hazard" in older buildings and that exposure to fibres can lead to fatal diseases many years afterwards. She said it was a critical requirement under legislation that all employers, particularly those in the construction and demolition sector, identify the presence of any materials containing asbestos in advance of any works on buildings built before the year 2000. "In practice, this can be achieved by requesting the results of an asbestos survey from the client or owner of the building or engaging a competent asbestos surveyor to conduct an intrusive refurbishment or demolition asbestos survey," said Ms McGuinness. "This particular case has highlighted that attempts to demolish structures below or adjacent to high-risk asbestos containing materials should not be attempted. All reasonable attempts should be made to remove all such materials by competent asbestos removal contractors prior to any demolition techniques being applied." ASBESTOS UPDATE: Asbestos Found in Dunedin Mud Tanks ---------------------------------------------------- David Loughrey of Otago Daily Times reported that contractors have been forced to wear protective equipment when cleaning Dunedin mud tanks after asbestos was found in about a third of those tested. Dunedin City Council acting infrastructure and networks general manager Leanne Mash said mud tank waste was being tested for asbestos following results showing what she said were low risk levels at the Green Island Landfill. As a precaution, the council was testing mud tank waste and cleaning procedures had been adjusted to make sure contractors and the public were kept safe. Initial test results showed the presence of some level of asbestos in a third of the 49 tanks sampled. Further testing was being done to determine the level of asbestos and related risk. The council was taking advice from an independent expert and believed there was no significant risk to the general public. "The asbestos risk is believed to be very low, but as a precaution to ensure contractor safety, a number of measures were put in place as soon as the issue was identified," Ms Mash said. "As a short-term measure, this includes mud tanks only being cleaned when they're blocked, although they are still being checked regularly. "It is not expected this will cause any issues as the last audit, two months ago, showed 97% of mud tanks were clean. "Once results are available and safety precautions have been re- assessed, an extra truck will be added to clean all mud tanks as needed." In the meantime, contractors would wear protective equipment when cleaning mud tanks and the council was working with them to ensure they were following safe procedures, including proper cleaning and disposal techniques for any clothing and equipment used while cleaning mud tanks. "We're also taking the additional precaution of using a buffer zone around mud tanks while they're being cleaned to ensure the public is well back from the area," Ms Mash said. The picture would be clearer when more test results were available. "We weren't previously aware of any asbestos in the mud tanks as it's not usually tested for. "We're letting other councils know so they can check their own systems. "We expect other cities may have the same issue as asbestos has historically been a widely used material." ASBESTOS UPDATE: Exposure Allegations at Gov't Facility Confirmed ----------------------------------------------------------------- FEDweek reported that the Office of Special Counsel has said that many of whistleblowers' allegations of exposure of agency employees and patients to asbestos fiber at the VA facility in Bedford, Mass., have been confirmed. The allegations were confirmed by the IG of that department after referral from the OSC, which said that the facility "failed to implement a robust safety inspection program to identify contaminated work spaces." "Thanks to courageous whistleblowers coming forward to report these failures, the facility is now taking this problem seriously, monitoring employee health, and carrying out more fulsome measures to ensure safety for employees and veterans," it said. Responses include developing procedures to ensure workspaces are evaluated before construction or renovations begin, additional asbestos awareness training for employees, and medical surveillance where appropriate, the OSC said. ASBESTOS UPDATE: Probe Launched After Refinery Asbestos Exposure ---------------------------------------------------------------- Caitlyn Rintoul of The Sydney Morning Herald reported that an investigation is underway after it was revealed workers at a Pinjarra refinery may have been exposed to asbestos. It's understood the incident occurred at Alcoa's Pinjarra factory, one of the world's largest refineries. It's believed lagging, which contained asbestos, was removed within an area that provided no protection from the potentially lethal fibres. Alcoa notified the Department of Mines, Industry Regulation and Safety of the incident and after reviewing the preliminary information, investigation officers attended the site. The department's mines safety director, Andrew Chaplyn, said the incident site had been isolated and the rest of the refinery could continue to operate as normal. ASBESTOS UPDATE: Qld Carpenter Sues James Hardie for $6MM --------------------------------------------------------- Tracey Ferrier of NEWS.com.au reported that a former carpenter who developed a deadly lung disease from James Hardie's asbestos products is suing the company for almost $6 million, including for the cost of caring for his sick wife. Syd Lacey, 73, is deaf and has undergone gruelling rounds of chemotherapy for mesothelioma while looking after his wife, Marion, who is also deaf and suffers from severe and debilitating epilepsy. Mr Lacey's disease, which James Hardie admits was caused by its asbestos products, will ultimately stop him from doing that. It will also kill him. But the retired carpenter says it's not enough for the company to only compensate him, and it must also pay for his wife's future care. Maurice Blackburn is running the case, due to begin in the Supreme Court in Brisbane, and the law firm says it could set a precedent. "Whilst James Hardie has conceded they are liable for Syd's asbestos exposure, they have refused to accept that Marion requires 24-hour care and that Syd will lose his ability to care for her around-the-clock," principal Jonathan Walsh said in a statement. He said Mr Lacey had been Marion's primary carer for 40 years. "It is very important to him that he has the financial means to make sure that his wife can be cared for." Mr Lacey is also seeking exemplary damages that recognise James Hardie's alleged "reckless indifference" in continuing to sell the asbestos products that caused his illness, despite knowing they could be deadly. "If that aspect of Syd's case is successful it will set an important legal precedent for future Queensland asbestos sufferers and their families seeking compensation, as currently there is no precedent for James Hardie or other defendants to have pay such damages in Queensland," Mr Walsh said. The case is set down for four days, with Mr Lacey seeking $5.9 million in damages from Amaca Pty Ltd, formerly James Hardie & Coy Pty Ltd. ASBESTOS UPDATE: Medical Supplies Storage Closes Over Asbestos -------------------------------------------------------------- TVNZ reported that asbestos was found in the rafters of the Central Store at Whangarei Hospital. The Northland District Health Board says tests indicate the asbestos is not airborne, but staff are taking a precautionary approach and all unsealed products have been disposed of. The DHB say staff that have been accessing the building have not been exposed to any harm. The DHB says it is not experiencing any shortage in medical supplies and a temporary supplies site has been set up in the interim. ASBESTOS UPDATE: Asbestos Found at Perth Development Site --------------------------------------------------------- Elizathern Creasy of 9news.com.au reported that asbestos has been found at the multi-million dollar Perth redevelopment site in Scarborough. A local resident found two pieces of what he suspected was asbestos while walking along the foreshore and reported it to the City of Stirling. Officers conducted tests on the small fragments, which revealed they were asbestos. The area, just north-west of the clock tower has now been fenced off and the public has been told not to enter. A City of Stirling spokesperson told 9NEWS " the pieces appeared to be in good condition and non-friable which places them in the low-risk category. The City is now in the process of organising a site assessment to investigate further. Until this is complete, and the City knows the status of the site, no work or activity will be undertaken in this area." The Council says it is still safe for the public to use the beachfront. ASBESTOS UPDATE: Asbestos Found at Foreshore Redevelopment ---------------------------------------------------------- Laura Pond of Community Newspaper Group reported that asbestos has been found at the Scarborough foreshore redevelopment. Scarborough resident Matt McIntosh discovered the fragments in a publicly accessible sandy area at the beachfront. As a contaminated lands consultant for ARC Environmental, he suspected the pieces were asbestos and reported it to the City of Stirling, which fenced off the site. Test results confirmed two fragments found in the area northwest of the clock tower near the contained asbestos. Mr McIntosh was concerned about how the materials came to be in the area. "It beggars belief how this could happen," he said. "Theoretically it could be across the whole site. "As a local resident, Scarborough should be something we should be proud of." City planning and development director Ross Povey confirmed the pieces contained asbestos. ASBESTOS UPDATE: "Latiolais" Remanded to La. State Court -------------------------------------------------------- HarrisMartin Publishing reported that a Louisiana federal court has remanded an asbestos action, finding that the removing defendant had failed to show that the U.S. government exercised any control over the company's safety practices. In the May 4 opinion, the U.S. District Court for the Eastern District of Louisiana subsequently found that the removal on federal officer grounds was improper. Plaintiff James A. Latiolais asserted the claims, contending that he developed mesothelioma as a result of exposure to asbestos- containing products he encountered while working aboard the USS Tappahannock as a machinist at Avondale Shipyard. ASBESTOS UPDATE: Asbestos Firms Hope to Continue $117MM Streak -------------------------------------------------------------- Forbes reported that Johnson & Johnson, fresh from losing a $117 million asbestos verdict in New Jersey, is opposing plaintiff lawyers who are trying to obtain punitive damages against it in a specialized New York court for asbestos lawsuits. The fight is still in its initial stages but could represent a key test of the system for seeking punitive damages under new rules at the New York City Asbestos Litigation docket. NYCAL effectively banned punitives from 1996 until March of this year, when an intermediate appeals court approved them over the objections of defendant companies that say they are improper in lawsuits over conduct that occurred decades ago, at firms that often no longer exist. Defendants are expected to appeal that decision to the state's highest court. In the meantime, attorneys are free to add punitive damages to the demands they make in asbestos suits in New York City, increasing the pressure on defendants to settle or risk potentially devastating verdicts. Lawyers at Levy Konigsberg, a leading asbestos plaintiffs' firm, did just that in New Jersey, winning $80 million in punitive damages for a man who claimed he was stricken with mesothelioma after using talcum powder his lawyers said was tainted with asbestos. In an April 20 letter to Johnson & Johnson, lawyers at Levy Konigsberg said they plan to seek punitive damages in a lawsuit pending in NYCAL against J&J and its consumer unit. In a May 1 response, J&J's lawyers at Patterson Belknap said the plaintiffs have no reason to claim punitives because Johnson & Johnson and its consumer division never "intentionally sold asbestos or asbestos-containing products at any time" and the lawsuit "does not allege otherwise." J&J also said the plaintiffs lack a "good faith" basis for seeking punitives, which are generally seen as punishment for egregious and intentional conduct -- a charge J&J believes can't be proved in cases in which it disputes the basic fact of whether its talc products contain asbestos at all. Defendants challenged Judge Heitler's 2014 order reinstating punitive damages and won a partial victory in 2015 when an appeals court ruled that her case management order unfairly allowed plaintiffs to delay informing the other side that they were seeking punitives until the end of trial. ASBESTOS UPDATE: Owners Foot $200K Bill at Ainslie Clean-Up ----------------------------------------------------------- Steven Trask of The Canberra Times reported that the second stage of asbestos decontamination at the Ainslie shops has begun with the owners of the affected buildings expected to fork out up to $200,000 for the work. Work Safety Commission Greg Jones said this would allow the affected shops to stave off demolition for a number of years, although could not say exactly how long. "The second stage of works at the Ainslie shops is about to commence. This will involve an environmental cleanse above units three and five, as well as the replacement of roof tiling and some other work inside the roof," Mr Jones said. "In the long term the buildings will need to be demolished because of the contamination with the loose fill asbestos, but under a management plan a medium term solution can be made." The cost of the roof replacement could be between $100,000 and $200,000 and would be footed by property owners, Mr Jones said. "As a commercial premises the owners are responsible for undertaking these works," he said. "The owners have engaged licensed builders and asbestos removal specialists to undertake the works, and Work Safe have monitored their plans and we are satisfied they are appropriate." Dangerous "Mr Fluffy" loose-fill asbestos was installed in the second-level ceiling of 1 Edgar Street, above Edgar's Inn, almost 50 years ago. Investigations in February and March last year showed it had migrated into the ceiling of the neighbouring building, which houses a newsagency and laundromat on the ground floor and a therapeutic massage business on the first floor. The corner building, No 1, is owned by Jeff Darwin. Numbers 3, 5 and 7 are owned by the Xyrakis family. Manuel Xyrakis said he was pleased the clean-up work would finally begin, expecting it to cost as much as $200,000 between himself and Mr Darwin. He said he did not expect the buildings to be demolished any time soon. "Every six months we have to do an asbestos report," he said. "If it's monitored correctly, as far as I'm concerned there is no demolition. "I think Work Safe says every building does eventually get demolished and replaced. But there is no set date." Loose-fill asbestos was installed in the ceilings of 1022 homes across the ACT. It has also been found in two commercial buildings. One of these buildings was a childcare centre, and the other was the Ainslie shops. The government is buying and demolishing all of the homes, however owners of commercial sites are responsible for their own decontamination. "We are doing the roof replacement. In our building we have to do an environmental clean," Mr Xyrakis said. "Between the owner of No 1 and myself it will cost us $200,000 by the time the work is done." Mr Jones said the second stage of works would continue for about four weeks and would cause minimal disruption to businesses in the area. "The upper-level shops in the north building will need to close while the roof replacement works take place," he said. "A small number of car parking spaces will not also be available for the duration of the works. Trade will be able to safely continue for the rest of the shops." Mr Jones said he did not expect work would need to be done over weekends. ASBESTOS UPDATE: Judge Denies Attempt to Stop Mesothelioma Suit --------------------------------------------------------------- Mesothelioma.net reported that when a mesothelioma victim makes the decision to pursue legal action against the companies responsible for their exposure to asbestos, one of the first things they are told is that the asbestos companies will push back hard. For many this comes as a shock -- after all, it has been well established that exposure to asbestos causes mesothelioma and other serious illnesses. If they produced asbestos-contaminated products, how could they possibly argue against their liability? Though common sense supports the mesothelioma victims' position, many of the companies that are named in mesothelioma lawsuits work hard to defend themselves, and their attorneys offer numerous arguments to try to shut down victims' claims before they ever reach a jury. That is what happened in a recent case filed by Tatjana Pogacnik on behalf of her late husband, Leon. Leon had been an architect who worked in close proximity to Mannington Mills' asbestos- contaminated sheet flooring on numerous projects between 1969 and 1983. When he was diagnosed with mesothelioma he made the connection between his illness and the dust that he was exposed to on these work projects, and filed a claim against the company seeking compensation for his medical expenses and other damages. In response, Mannington Mills moved for summary judgment, claiming that he had not proven that there was enough asbestos in their product, or that his exposure to asbestos was sufficient, to have caused is illness. In making the decision about whether the mesothelioma lawsuit could move forward, Judge Lucy Billings of the Supreme Court of New York County concluded that Mannington Mills had failed to fulfill the most basic requirements to support a motion for summary judgment. In order to have the case dismissed, they would have had to show that there was no evidence supporting Mrs. Pogacnik's case. Instead, they tried to shift the burden of proof onto her, which is something that is not legally permitted when arguing for summary judgment. As a result, the case will move forward and she will have the opportunity to prove their liability for her husband's death. Mesothelioma victims face many challenges, but they have the advantage of having numerous resources to support them. If you or a loved one has been diagnosed with this rare and fatal form of cancer, contact the Patient Advocates at Mesothelioma.net today at 1-800-692-8608 to learn more about how we can help. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *