/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180531.mbx C L A S S A C T I O N R E P O R T E R Thursday, May 31, 2018, Vol. 20, No. 109 Headlines AARON'S INC: 3rd Party Administrator in "Korrow" Begins Payments AARON'S INC: District Court Reinstates Invasion of Privacy Claim AECOM INC: Faces "Tafoya" Suit in C.D. California AFFINION GROUP: Appeal in Connecticut Class Suit Pending AFFINION GROUP: Connecticut Suit vs. Webloyalty Still Ongoing AFFINION GROUP: Calif. Class Suit vs. Webloyalty in Discovery ALKERMES PLC: Faces "Gagnon" Class Action Suit AM RETAIL: "Ramos" Suit Remanded to California State Court AMAZON.COM LLC: Court Narrows Claims in "Miller" Wage & Hour Suit AMERICA MOVIL: Unit Faces Two Class Suits in Mexico AMYRIS INC: California Securities Suit Dropped ANTHEM INC: Report in Cyber Attack Suit Due This Month ANTHEM INC: Defendants to Seek 11th Circuit Appeal APPLE INC: Must Face Class Action Over PowerBeats Headphones ATHENAHEALTH INC: Suit by St. Louis Heart Center Dismissed AV HOMES: Bid for Class Cert. in Solivita-Related Suit Pending AVINGER INC: Earmarks $1.76 Million for Litigation Settlement BAI BRANDS: Justin Timberlake Among Defendants in Class Action BEHR PROCESS: Court Extends Status Report Filing in "Rose" BELLE GLADE: Faces "Monroe" Suit Over Failure to Pay Overtime BLUE STAR: Court Awards $7K Attorney' Fees in "Martinez" BMW BANK: Foley & Lardner Attorney Discusses Class Action Ruling BOFI HOLDING: Dismissal of Securities Suit Under Appeal BOFI HOLDING: June 15 Hearing on Bid to Dismiss "Mandalevy" Suit BRAVO BRIO: Faces "Dagenbach" Shareholder Class Action BRIGHT HOUSE: Judgment on Pleading in "Sliwa" TCPA Suit Denied BRISTOL MYERS: Faces Suit Related to Checkmate -026 Trial CALGARY STAMPEDE: Sex Abuse Class Action Lawsuit in Works CALGARY STAMPEDE: Class Action Expected to Move Forward This Year CANADIAN SOLAR: Continues to Defend Ontario Class Action CDK GLOBAL: Teterboro Automall Suit Consolidated in MDL CELGENE CORP: Kessler Topaz Announces Class Period Expansion CELLULAR SALES: Can't Compel Production of Communications CHURCHILL DOWNS: Continues to Defend "Kater" Class Action CLARK COUNTY, NV: Witness Deposition in Suit vs CCSD Extended COLGATE PALMOLIVE: New York Class Suit Remains Pending COLORADO: Homeless Sweep Class Action Attorney Faces Challenges CONCHA Y TORO: Appeal in California Class Suit Still Pending CONTROLADORA VUELA: New York Class Action Concluded CORELOGIC INC: Settlement in "Henderson" Suit Approved CORELOGIC INC: Settlement in "Witt" Suit Approved CORELOGIC INC: Continues to Defend "Feliciano" Class Suit CORELOGIC INC: Continues to Defend "King" Class Action CORNING INC: Court Denies Certification in Modern Holdings' Suit CREDIT SUISSE: Obtains Favorable Ruling in Arbitration Bid CREDIT UNION: Court Allows Amendment to "Nichols" TCPA Complaint CSK AUTO: June 25 Deadline to Respond to Pleading in "Aguilar" CYAN INC: Recent Supreme Court Ruling Resolves SLUSA Issue DEL MONTE: Court Approves $904,872 Settlement in "Bruce" DEUTSCHE BANK: Certification of Certificate Holders Class Denied DIRECTV LLC: Court Extends Time to Respond in "Valdez" DYNAMEX OPERATIONS: Cal. High Ct. Uses ABC Test in Drivers' Suit DYNAMEX OPERATIONS: Ruling Hailed as Game Changer for Gig Economy EL PASO, CO: Judge Grants Class Action Status in Immigration Case ELETROBRAS: To Pay US$ 14.75-Bil. to Settle US Class Action EPIC SYSTEMS: Employment Lawsuit Awaits Supreme Court Ruling EQUIFAX INC: Continues to Defend Cybersecurity-Related Suits ERIE INDEMNITY: Case Dismissal Under Appeal in 3rd Circuit ERIE INDEMNITY: Bid to Drop "Ritz" Suit Ongoing ESSENDANT INC: Awaits Preliminary Approval of Settlement EXTENDICARE: Class Action Alleges Negligence at Nursing Homes FACEBOOK INC: Canadians Sue Over Cambridge Analytica Scandal FACEBOOK INC: User Agreement May Create Grounds for Class Action FACEBOOK INC: Parties Agree to Settle Class Suit over IPO FAIRMOUNT SANTROL: Monteverde & Associates Files Class Action FCA US: Court Dismisses "Bledsoe" Dodge Ram Emissions Suit FIRST COMMUNITY: Court Partly Grants Bid to Strike in "Lavigne" FITCHBURG GAS: "Bellermann" Class Action Still Ongoing FLORIDA POWER: Must Face Class Action Over Power Outages FRANKLIN RESOURCES: "Fernandez" & "Cryer" Suits Consolidated GAME SHOW NETWORK: Faces "Bell" Suit in W.D. Washington GATEWAY ENERGY: Court Denies Bid to Dismiss Consumer Fraud Suit GENERAL MOTORS: Pedranti Sues Over Steering System Defects GENERAL MOTORS: NY Judge Nixes Advance Successor Liability Claims GENERAL MOTORS: Petitions for Rehearing and En Banc Review Denied GENERAL MOTORS: Still Defends 3 Airbag Inflators Class Suits GNC HOLDINGS: Appeals Ruling to Pennsylvania High Court GNC HOLDINGS: Bid for Class Decertification Filed in "Naranjo" GOOGLE INC: Ballard Spahr Discusses Cy pres Settlement Ruling GOOGLE LLC: Says Would-Be Workers Can't Sue Together GRIDSUM HOLDING: June 25 Lead Plaintiff Motion Deadline Set HENRY SCHEIN: Kaskela Files Shareholder Class Action HP INC: Court Narrows Claims in Defective Ink Cartridge Suit ILLINOIS: Court Narrows Claims in "Koss" Medicaid Suit IMPERIALCARS.COM: "Cohen" Sues Over Illegal Telemarketing Calls INDEPENDENT BANK: Trial in BOH Acquisition Suit Set for Jan. 2020 INPUT CAPITAL: Famers File Class Action Over Unfair Contracts IQ FORMULATIONS: Court Dismisses Consumer Fraud Suit JOHNSON & JOHNSON: Quebec Court Authorizes Class Action Lawsuit JONES MOTOR: Court Grants Bid to Dismiss "Daley" ICWA Suit K12 INC: Discovery Ongoing in California Securities Class Suit LENDINGCLUB CORP: Block & Leviton Files Class Action LENDINGCLUB CORP: Bragar Eagel Files Class Action LENDINGCLUB CORP: Federman & Sherwood Files Class Action Lawsuit LENDINGCLUB CORP: RM LAW Files Securities Class Action Lawsuit LENDINGCLUB CORP: Bernstein Liebhard Files Class Action Suit LENDINGCLUB CORP: Rosen Law Firm Files Securities Class Suit LG CHEM: Lithium Batteries Settlements Obtain Final Court Nod MANAGEMENT AND TECHNOLOGY: 9th Cir. Affirms Dismissal of "Fober" MANNA 2ND: "Jara" Suit Seeks Unpaid Overtime, Spread-of-Hours Pay MAPLEBEAR INC: Faces "Cortez" Suit in Calif. State Court MARRIOTT INT'L: Court Denies "Arias" Class Certification Bid MARRIOTT VACATIONS: Claims in Ritz-Carlton Club Suit Narrowed MATTEL INC: Continues to Defend Consolidated Class Suit in Cal. MAXIM HEALTHCARE: Partial Summary Judgment in "Jordan" Granted MDL 2099: Stanford Securities Litigation Pending MDL 2179: Court Denies Bid for Supersedeas Bond MDL 2827: "Burton" Class Suit Transferred to N.D. Ca. MDL 2828: United Food Suit Transferred to Oregon MDL 2828: "Ferrer" Class Suit Transferred to Oregon MDL 2828: "Mechri" Class Suit Transferred to Oregon MDL 2828: "Park" Class Suit Transferred to Oregon MECHEL BLUESTONE: Justice Highwall Workers Included in Class METHODIST DALLAS: Meal Break Suit Granted Class Action Status MICROSEMI CORP: Multiple Merger-Related Suits Pending in Calif. MICROSOFT CORP: Court Grants Arbitration in "Maher" Suit MICROSOFT CORP: Class Suit Underway in British Columbia MICROSOFT CORP: Summary Judgment Filed in Gender Bias Suit MSR 804: Families of EgyptAir Crash Victims File Suit NEW LINK: Court Dismisses "Nguyen" Securities Fraud Suit NEW YORK: Dismissal of Dormant Commerce Clause Claims Affirmed NEW YORK: Averts Female Crossing Guards' Class Action NEW YORK-PRESBYTERIAN: Faces "Picon" Suit in S.D. New York NISSAN NORTH: Court Narrows Claims in Defective TCTS Suit NYU LANGONE: Faces "Picon" Suit in S.D. New York PAYPAL HOLDINGS: Continues to Defend "Sgarlata" Class Suit PHILIP MORRIS: Smoker Health Defense Association's Suit Ongoing PHILIP MORRIS: Unit Continues to Defend Public Prosecutor's Suit PHILIP MORRIS: "Letourneau" Class Action vs. Unit Still Ongoing PHILIP MORRIS: "Blais" Class Action vs. Unit Still Pending PHILIP MORRIS: Counsel in "Kunta" Case to Pursue Another Suit PHILIP MORRIS: Preliminary Motions Still Pending in "Adams" PHILIP MORRIS: "Semple" Suit Stayed Pending "Adams" Case PHILIP MORRIS: "Dorion" Complaint Still Not Properly Served PHILIP MORRIS: "McDermid" Class Action Suit Still Ongoing PHILIP MORRIS: Continues to Defend "Bourassa" Class Suit PHILIP MORRIS: "Jacklin" Class Suit Remains Dormant PHL VARIABLE: Sued in New York Over Excessive COI Increase POLARIS INDUSTRIES: Four Class Suits in the U.S. PRATT & WHITNEY: Judge Rules Against Expanding Lawsuit PURDUE PHARMA: Sued Over Rising Health Insurance Premiums PURDUE PHARMA: 3 Law Firms File Opioid Epidemic Class Actions QUEENSLAND: To Pay $30-Mil. in Palm Island Class Action QUINSTREET INC: June 26 Lead Plaintiff Motion Deadline Set RIPPLE LABS: Hit With Class-Action Suit Over 'Never Ending ICO' RITE AID: "Wilson" Merger Class Action Remains Pending RITE AID: Plaintiff Balks at Motion to Dismiss "Hering" Suit RITE AID: Indergit Administrator Has Disbursed Settlement Funds RITE AID: Trial in "Hill" Suit Continued to June 15 RODAN + FIELDS: Hit With Suit Over Eyelash Enhancer ROSETTA RADIOLOGY: Faces "Picon" Suit in S.D. New York ROTHMAN EVANS: Faces "Wheeler" Suit in N.D. New York RYB EDUCATION: Bid to Appoint Lead Counsel and Plaintiff Pending RYB EDUCATION: "Qian" Class Action Pending in California SEATTLE GENETICS: Still Defends CD33A Class Action SEATTLE GENETICS: "Kim" Suit Voluntarily Dismissed SERVICE CORP: Settlement in "Allard" Finally Approved SERVICE CORP: Dismissal of "Moulton" Suit Under Appeal SERVICE CORP: "Urofsky" Class Action Pending in E.D. Pa. SILICON LABORATORIES: Defending "Noyes" Class Suit SINA CORPORATION: Unit's Bid to Dismiss Consolidated Suit Pending SIRIUS XM: "Buchanan" TCPA Class Action Suit Still Ongoing SIX FLAGS: Continues to Defend Suit over Biometric Info SIX FLAGS: Suits over Credit & Debit Card Info Still Ongoing SOUTHERN RESPONSE: Woods to Facilitate Class Action Negotiations SYNCHRONY FINANCIAL: Faces "Campbell", "Neal" & "Mott" TCPA Suits SYNCHRONY FINANCIAL: Kincaid TCPA Class Action Still Ongoing SYSTEM DYNAMICS: "Mullally" Suit Seeks to Recover Unpaid Wages TARGET CORP: Up & Up Toddler Wipes Settlement Has Prelim OK TIGER BRANDS: South Africa Gold Producers, Miners Reach Deal TRINITY INDUSTRIES: Isolde Consolidated Suit Still Stayed UNION PACIFIC: Palestine Woman Files Class Action UNITED STATES: Houstounians File Claims v. Corps of Engineers UNITED STATES: Forest Service Faces Sexual Harassment Lawsuit UNITYPOINT HEALTH: Faces Class Action Lawsuit Over Data Breach VALEANT PHARMACEUTICALS: Appeal Court Tosses Cold-FX Case Appeal VICTORY PARK: Faces "Gibbs" Suit in N.D. Texas VIDEOTRON LTEE: Settlement Negotiations in "Benabu" Suit Ongoing WAGEWORKS INC: Kaskela Files Shareholder Class Action WELLS FARGO: Settles Fake-Accounts Lawsuit for $480MM WELLS FARGO: Union Investment Achieves Recovery for Shareholders WHITE PLAINS HOSPITAL: Faces "Picon" Suit in S.D. New York WYNN LAS VEGAS: Employees File Class Action Over Tip Policy XUNLEI LTD: Faces Securities Class Suit Related to OneCoin * Jackson Lewis Issues Class Action Trends Report * Oil Sector Hot Bed of IC Misclassification Class Actions ********* AARON'S INC: 3rd Party Administrator in "Korrow" Begins Payments ---------------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the third party in Margaret Korrow, et al. v. Aaron's, Inc., has begun issuing payments to consumers after final settlement was paid. In Margaret Korrow, et al. v. Aaron's, Inc., originally filed in the Superior Court of New Jersey, Middlesex County, Law Division on October 26, 2010, plaintiff filed suit on behalf of herself and others similarly situated alleging that the Company is liable in damages to plaintiff and each class member because the Company's lease agreements issued after March 16, 2006 purportedly violated certain New Jersey state consumer statutes. In December 2016, a class notice was mailed to certain individuals who were customers of Company-operated stores in New Jersey from March 16, 2006 to March 31, 2011. The parties participated in a settlement conference and reached tentative settlement terms in March 2017. On September 15, 2017, the parties submitted the final comprehensive settlement agreement to the Court for approval, which the Court approved during the first quarter of 2018. The final settlement was paid to a third party administrator in the first quarter of 2018. That third party began issuing payments to consumers and will continue payment distributions pursuant to the terms of the settlement agreement. Aaron's, Inc. operates as an omnichannel provider of lease- purchase solutions. It operates through three segments: Progressive Leasing, Aaron's Business, and DAMI. The company is based in Atlanta, Georgia. AARON'S INC: District Court Reinstates Invasion of Privacy Claim ---------------------------------------------------------------- Aaron's, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the District Court has granted plaintiff's motion to reconsider the prior dismissal of the Wyoming invasion of privacy claim. In Crystal and Brian Byrd v. Aaron's, Inc., Aspen Way Enterprises, Inc., John Does (1-100) Aaron's Franchisees and Designerware, LLC, filed on May 16, 2011, in the United States District Court, Western District of Pennsylvania, plaintiffs allege the Company and its independently owned and operated franchisee Aspen Way Enterprises ("Aspen Way") knowingly violated plaintiffs' privacy in violation of the Electronic Communications Privacy Act ("ECPA") and the Computer Fraud Abuse Act and sought certification of a putative nationwide class. Plaintiffs based these claims on Aspen Way's use of a software program called "PC Rental Agent." Plaintiffs filed an amended complaint, asserting claims under the ECPA, common law invasion of privacy, seeking an injunction, and naming additional independently owned and operated Company franchisees as defendants. Plaintiffs seek monetary damages as well as injunctive relief. In March 2014, the United States District Court dismissed all claims against all franchisees other than Aspen Way Enterprises, LLC, dismissed claims for invasion of privacy, aiding and abetting, and conspiracy against all defendants, and denied plaintiffs' motion to certify a class action, but denied the Company's motion to dismiss the claims alleging ECPA violations. In April 2015, the United States Court of Appeals for the Third Circuit reversed the denial of class certification on the grounds stated by the District Court, and remanded the case back to the District Court for further consideration of that and the other elements necessary for class certification. On September 26, 2017, the District Court again denied plaintiffs' motion for class certification. Plaintiffs have filed a petition with the United States Court of Appeals for the Third Circuit for permission to appeal the denial of class certification. The Company is opposing this petition, and a decision remains pending. In March 2018, the District Court granted plaintiff's motion to reconsider the prior dismissal of the Wyoming invasion of privacy claim. That claim is now under evaluation for class certification. Aaron's, Inc. operates as an omnichannel provider of lease- purchase solutions. It operates through three segments: Progressive Leasing, Aaron's Business, and DAMI. The company is based in Atlanta, Georgia. AECOM INC: Faces "Tafoya" Suit in C.D. California ------------------------------------------------- A class action lawsuit has been filed against AECOM, Inc. The case is styled as Issac Tafoya, an individual, on behalf of himself and all others similarly situated, Plaintiff v. AECOM, Inc. and DOES 1 through 100, Defendants, Case No. 2:18-cv-04113 (C.D. Cal., May 16, 2018). AECOM, Inc. provides building engineering, transportation, and environmental consultancy services in the United Kingdom.[BN] The Plaintiff appears PRO SE. AFFINION GROUP: Appeal in Connecticut Class Suit Pending -------------------------------------------------------- Affinion Group Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company is awaiting a court decision on the appeal made by the plaintiffs in a Connecticut class action against the company and Trilegiant Corporation. On June 17, 2010, a class action complaint was filed against the Company and Trilegiant Corporation ("Trilegiant") in the United States District Court for the District of Connecticut. The complaint asserts various causes of action on behalf of a putative nationwide class and a California-only subclass in connection with the sale by Trilegiant of its membership programs, including claims under the Electronic Communications Privacy Act ("ECPA"), the Connecticut Unfair Trade Practices Act ("CUTPA"), the Racketeer Influenced Corrupt Organizations Act ("RICO"), the California Consumers Legal Remedies Act, the California Unfair Competition Law, the California False Advertising Law, and for unjust enrichment. On April 26, 2012, the court consolidated two additional lawsuits making substantially similar allegations that were filed against the Company, Trilegiant, and numerous other defendants. An additional lawsuit, which was identical in all respects to these cases, was also consolidated on March 28, 2014. On December 7, 2012, all Defendants filed motions seeking to dismiss the consolidated amended complaint. On March 28, 2014, the court entered orders granting in part and denying in part the motions to dismiss. After the motions, claims under the ECPA and CUTPA and for unjust enrichment remained pending against the Company and Trilegiant. On February 29, 2016, the Company filed a Motion for Summary Judgment on the claims of the remaining named Plaintiffs. On August 23, 2016, the court granted the Company's motion for Summary Judgment as to all remaining claims against the Defendants. Plaintiffs appealed and the court of appeals held oral arguments on October 27, 2017. A decision has not yet been issued. Affinion Group, Inc. designs, administers, and fulfills loyalty, customer engagement, and insurance programs and solutions. The company operates through four segments: Global Loyalty, Global Customer Engagement, Insurance Solutions, and Legacy Membership and Package. The company is based in Stamford, Connecticut. AFFINION GROUP: Connecticut Suit vs. Webloyalty Still Ongoing ------------------------------------------------------------- Affinion Group Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit pending in the U.S. District Court for the District of Connecticut by a former member of Webloyalty's membership programs. On August 27, 2010, a former member of Webloyalty's membership programs filed a putative class action lawsuit against Webloyalty, one of its former clients, and one of the credit card associations in the United States District Court for the District of Connecticut (the "Connecticut District Court"). The Plaintiff alleged that Webloyalty's enrollment of the Plaintiff using debit card information obtained from a third party via data pass, and not directly from the Plaintiff, was deceptive. The Plaintiff seeks to represent a nationwide class of consumers whose credit or debit card data was transferred to Webloyalty via data pass on or after October 1, 2008. The complaint, which was amended several times, asserted, among others, claims for violations of the Electronic Funds Transfer Act ("EFT"), the ECPA, and CUTPA as well as other common law claims. On October 15, 2015, the Connecticut District Court entered judgment dismissing all claims with prejudice. The Plaintiff appealed that judgment to the United States Court of Appeals for the Second Circuit (the "Second Circuit"). On December 20, 2016, the Second Circuit affirmed the District Court of Connecticut's dismissal in part, but reversed and remanded the dismissal of claims against Webloyalty and its former client under CUTPA and the EFT. The District Court of Connecticut held a scheduling conference on March 23, 2017, but discovery has not yet commenced. The defendants have answered the complaint and denied any liability. Affinion Group, Inc. designs, administers, and fulfills loyalty, customer engagement, and insurance programs and solutions. The company operates through four segments: Global Loyalty, Global Customer Engagement, Insurance Solutions, and Legacy Membership and Package. The company is based in Stamford, Connecticut. AFFINION GROUP: Calif. Class Suit vs. Webloyalty in Discovery ------------------------------------------------------------- Affinion Group Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the class action suit against Webloyalty in the U.S. District Court for the Southern District of California is now in discovery. On June 7, 2012, a class action lawsuit was filed against Webloyalty in the U.S. District Court for the Southern District of California (the "District Court of S.C."). After filing several amended complaints, the Plaintiff asserted a variety of claims, including claims under the EFT, the ECPA, California Business and Professional Code Section 17200, et seq. (the "CBPC"), CUTPA, various privacy statutes, and common law. The Plaintiff seeks to represent a nationwide class of consumers whose credit or debit card information was obtained by Webloyalty via data pass, and had their credit or debit cards charged on or after October 1, 2008. On June 22, 2015, the District Court of S.C. entered judgment dismissing the Plaintiff's federal claims with prejudice, and his state claims without prejudice. The Plaintiff appealed that judgement to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit"). On March 28, 2017, the Ninth Circuit affirmed the dismissal of the Plaintiff's ECPA and privacy-based state law claims, but reversed and remanded the dismissal of other claims, including the Plaintiff's claims under the EFT, CBPC, and CUTPA. On September 5, 2017, the Plaintiff filed a third amended complaint, which asserts the claims that were remanded by the Ninth Circuit. Webloyalty has answered the complaint and denied all liability. The matter is now in discovery. Affinion Group, Inc. designs, administers, and fulfills loyalty, customer engagement, and insurance programs and solutions. The company operates through four segments: Global Loyalty, Global Customer Engagement, Insurance Solutions, and Legacy Membership and Package. The company is based in Stamford, Connecticut. ALKERMES PLC: Faces "Gagnon" Class Action Suit ---------------------------------------------- Alkermes Public Limited Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company is facing a putative class action suit in the U.S. District Court for the Southern District of New York captioned Gagnon v. Alkermes plc, et al. On November 22, 2017, a purported stockholder of the Company filed a putative class action against the Company and certain of its officers in the United States District Court for the Southern District of New York captioned Gagnon v. Alkermes plc, et al., No. 1:17-cv-09178. The complaint was filed on behalf of a putative class of purchasers of Alkermes securities during the period of February 24, 2015 to November 3, 2017, and alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, based on allegedly false or misleading statements and omissions regarding the Company's marketing practices related to VIVITROL. The lawsuit seeks, among other things, unspecified damages for alleged inflation in the price of securities, and reasonable costs and expenses, including attorneys' fees. Alkermes plc, a biopharmaceutical company, researches, develops, and commercializes pharmaceutical products to address unmet medical needs of patients in various therapeutic areas in the United States, Ireland, and internationally. It was founded in 1987 and is headquartered in Dublin, Ireland. AM RETAIL: "Ramos" Suit Remanded to California State Court ---------------------------------------------------------- The United States District Court for the Eastern District California remaned the case captioned MARIA RAMOS, Plaintiff, v. AM RETAIL GROUP, INC., Defendant, No. 2:16-cv-01842-TLN-AC, (E.D. Cal.), to the Superior Court of California, County of San Francisco. The Defendant removed this action to the United States District Court for the Northern District of California pursuant to the general removal statute. Days later, the parties stipulated to its transfer to the United States District Court for the Eastern District of California. The general removal statute permits the removal to federal court of any civil action over which the district courts of the United States have original jurisdiction. Removal is proper under Section 1441 only if the district court could have exercised jurisdiction over the action had it originally been filed in federal court. This case is only in federal district court because the Defendant has removed it. That is, the Defendant is the proponent of this Court's subject matter jurisdiction. Thus, it is the Defendant's burden not the Plaintiff's to show this Court has subject matter jurisdiction. Crediting the Defendant's argument as to standing, without deciding that it is correct, the Defendant plainly has not carried its burden to show this Court has subject matter jurisdiction. Accordingly, remand to state court is appropriate. A full-text copy of the District Court's March 29, 2018 Order is available https://tinyurl.com/y9vv8rk5 from Leagle.com. Maria Ramos, on behalf of herself and all others similarly situated, Plaintiff, represented by Gene Joseph Stonebarger -- gstonebarger@stonebargerlaw.com -- Stonebarger Law, Prescott W. Littlefield -- pwl@keameylittlefield.com -- Kearney Littlefield, LLP -Richard David Lambert -- rlambert@stonebargerlaw.com, Stonebarger Law & Thomas A. Kearney -- tak@keameylittlefield.com -- Kearney Littlefield, LLP. AM Retail Group, Inc., a Delaware Corporation, Defendant, represented by Stephanie Anne Sheridan -- ssheridan@steptoe.com - - Steptoe & Johnson LLP. AMAZON.COM LLC: Court Narrows Claims in "Miller" Wage & Hour Suit ----------------------------------------------------------------- The United States District Court for the Northern District of California granted in part and denied in part Amazon.com, LLC's Motion to Dismiss Plaintiff's Second Amended Class Action Complaint and Motion to Strike Class Allegations in the case captioned JASMINE MILLER, Plaintiff, v. AMAZON.COM, LLC, Defendant, Case No. 17-cv-03488-MMC. (N.D. Cal.). In its Motion to Dismiss, Amazon asserts the following: (1) The First Cause of Action -- Failure to Provide Regular Pay/Minimum Wages -- is subject to dismissal, as plaintiff fails to allege facts showing that there was a given week in which she was entitled to but denied minimum wages or regular wages. (2) The Second Cause of Action -- Failure to Provide Overtime Premium Pay -- is subject to dismissal, as plaintiff fails to allege facts showing that there was a given week in which she was entitled to but denied overtime wages. (3) The Third Cause of Action -- Failure to Provide Meal Periods and/or Meal Period Premium Pay -- is subject to dismissal, as plaintiff fails to allege sufficient facts to support a finding that Amazon failed to provide her a meal period or periods. (4) The Fourth Cause of Action -- Failure to Provide Rest Periods and Rest Period Premium Pay -- is, for the reasons stated with respect to the Third Cause of Action, subject to dismissal. (5) The Fifth Cause of Action -- Failure to Reimburse for Necessary Expenditures Incurred -- is not subject to dismissal, in light of plaintiff's allegation that she was required to carry and use her personal cell phone for scheduling purposes and maintaining communication with dispatch and the warehouse all without any reimbursement of any kind. (6) The Sixth Cause of Action -- Failure to Provide Accurate Wage Statements and Keep Accurate Payroll Records -- is, as pleaded, derivative of the First through Fifth Causes of Action. (7) The Seventh Cause of Action -- Failure to Timely Pay Wages Owed -- is subject to dismissal, as plaintiff does not allege facts to support a finding that Amazon's asserted failure to timely pay wages due plaintiff upon termination of her employment was willful. (8) The Eighth Cause of Action -- Failure to Provide Adequate Contracting Compensation -- is subject to dismissal. (9) The Ninth Cause of Action -- Violation of California's Unfair Competition Law -- is subject to dismissal. Motion to Strike In light of the Court's dismissal of the majority of the claims asserted in the operative pleading, and plaintiff's opportunity to amend her dismissed claims, the Court will deny Amazon's motion to strike the class allegations, without prejudice to refiling after plaintiff has amended, or, alternatively, decides not to do so. Amazon's motion to dismiss is granted in part and denied in part, as follows: the First through Fourth, Seventh, and Eighth Causes of Action are dismissed in their entirety; the Sixth Cause of Action is dismissed to the extent it is based on the First through Fourth Causes of Action; the Ninth Cause of Action is dismissed to the extent it is based on the First through Fourth, Seventh and Eighth Causes of Action, and to the extent it is based on the portion of the Sixth Cause of Action that is subject to dismissal. In all other respects, the motion is denied. A full-text copy of the District Court's March 29, 2018 Order is available https://tinyurl.com/ybvltpkq from Leagle.com. Jasmine Miller, individually and on behalf of all others similarly situated, Plaintiff, represented by James Jason Hill, Cohelan Khoury & Singer, Michael D. Singer, Cohelan Khoury and Singer, Ronald A. Marron -- ron@consumersadvocates.com -- Law Offices of Ronald A. Marron, APLC, Isam Charles Khoury, Esq., at Cohelan Khoury & Singer. Amazon.com, LLC, a Delaware Limited Liability Company, Defendant, represented by Brian David Fahy -- brian.fahy@morganlewis.com -- Morgan, Lewis & Bockius LLP, John S. Battenfield, Esq. -- jbattenfeld@morganlewis.com -- Morgan, Lewis & Bockius LLP & Theresa C. Mak -- Theresa.Mak@jacksonlewis.com -- Jackson Lewis P.C. AMERICA MOVIL: Unit Faces Two Class Suits in Mexico --------------------------------------------------- America Movil, S.A.B. de C.V.'s principal brand in Mexico for wireless voice and data services, Telcel, continues to face class action lawsuits regarding the brand's quality of service, according to the Company's Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. The Federal Consumer Bureau (Procuradur¡a Federal del Consumidor, or "Profeco") initiated a proceeding before Mexican courts in 2011 on behalf of customers who alleged deficiencies in the quality of Telcel's network in 2010 and breach of customer agreements. In June 2017, this proceeding was resolved in favor of Telcel, as Profeco failed to prove any breach by Telcel of the standard contract form executed by Telcel's customers. Telcel is also subject to two class action lawsuits initiated by customers allegedly affected by Telcel's quality of service and wireless and broadband rates. The Company does not currently have enough information on these proceedings to determine whether any of the class action lawsuits could have an adverse effect on the Company's business and results of operations in the event that they are resolved against Telcel. Consequently, the Company has not established a provision in the accompanying consolidated financial statements for a loss arising from these proceedings. America Movil, S.A.B. de C.V. provides telecommunications services in Mexico and internationally. The Company sells its products and services through a network of retailers and service centers to retail customers; and through sales force to corporate customers. America Movil, S.A.B. de C.V. was founded in 2000 and is based in Mexico City, Mexico. AMYRIS INC: California Securities Suit Dropped ---------------------------------------------- Amyris, Inc. said in its Form 10-K/A report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 30, 2017, that an order of dismissal has been entered on the plaintiff's notice of voluntary dismissal without prejudice on the securities class action complaint filed against the company in the U.S. District Court for the Northern District of California. In April 2017, a securities class action complaint was filed against the Company and its CEO, John G. Melo, and CFO, Kathleen Valiasek, in the U.S. District Court for the Northern District of California. The complaint sought unspecified damages on behalf of a purported class that would comprise all individuals who acquired the Company's common stock between March 2, 2017 and April 17, 2017. The complaint alleged securities law violations based on statements made by the Company in its earnings press release issued on March 2, 2017 and Form 12b-25 filed with the SEC on April 3, 2017. On September 21, 2017, an Order of Dismissal was entered on the plaintiff's notice of voluntary dismissal without prejudice. Amyris, Inc. provides various alternatives to a range of petroleum-sourced products worldwide. The company uses its industrial bioscience technology to design microbes primarily yeast, as well as to convert plant-sourced sugars into renewable ingredients. The company is based in Emeryville, California. ANTHEM INC: Report in Cyber Attack Suit Due This Month ------------------------------------------------------ Anthem, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the special master's report and recommendation in a class action lawsuit must be filed with the court by May 2018. Anthem said, "In February 2015, we reported that we were the target of a sophisticated external cyber attack. The attackers gained unauthorized access to certain of our information technology systems and obtained personal information related to many individuals and employees, such as names, birth dates, healthcare identification/social security numbers, street addresses, email addresses, phone numbers and employment information, including income data. To date, there is no evidence that credit card or medical information, such as claims, test results or diagnostic codes, were targeted, accessed or obtained, although no assurance can be given that we will not identify additional information that was accessed or obtained. " Upon discovery of the cyber attack, the company took immediate action to remediate the security vulnerability and retained a cybersecurity firm to evaluate its systems and identify solutions based on the evolving landscape. The company had provided credit monitoring and identity protection services to those who have been affected by this cyber attack. The company continued to implement security enhancements since this incident. The company incurred expenses subsequent to the cyber attack to investigate and remediate the matter and expect to continue to incur expenses of this nature in the foreseeable future. The company recognizes these expenses in the periods in which they are incurred. Actions have been filed in various federal and state courts and other claims have been or may be asserted against the company on behalf of current or former members, current or former employees, other individuals, shareholders or others seeking damages or other related relief, allegedly arising out of the cyber attack. Federal and state agencies, including state insurance regulators, state attorneys general, the Health and Human Services Office of Civil Rights and the Federal Bureau of Investigation, are investigating events related to the cyber attack, including how it occurred, its consequences and the company's response. In December 2016, the National Association of Insurance Commissioners, or NAIC, concluded its multistate targeted market conduct and financial exam. In connection with the resolution of the matter, the NAIC requested the company to provide, and the company agreed to provide, a customized credit protection program, equivalent to a credit freeze, for the company's members who were under the age of eighteen on January 27, 2015. No fines or penalties were imposed on the company. Although the company is cooperating in these investigations, the company may be subject to fines or other obligations, which may have an adverse effect on how the company operates its business and an adverse effect on its results of operations and financial condition. With respect to the civil actions, a motion to transfer was filed with the Judicial Panel on Multidistrict Litigation, or the Panel, in February 2015 and was subsequently heard by the Panel in May 2015. In June 2015, the Panel entered its order transferring the consolidated matter to the U.S. District Court for the Northern District of California, or the U.S. District Court. The U.S. District Court entered its case management order in September 2015. The company filed a motion to dismiss ten of the counts that were before the U.S. District Court. In February 2016, the U.S. District Court issued an order granting in part and denying in part the company's motion, dismissing three counts with prejudice, four counts without prejudice and allowing three counts to proceed. Plaintiffs filed a second amended complaint in March 2016, and the company subsequently filed a second motion to dismiss. In May 2016, the U.S. District Court issued an order granting in part and denying in part the company's motion, dismissing one count with prejudice, dismissing certain counts asserted by specific named plaintiffs with or without prejudice depending on their individualized facts, and allowing the remaining counts to proceed. In July 2016, plaintiffs filed a third amended complaint, which the company answered in August 2016. Fact discovery was completed in December 2016. Plaintiffs filed their motion for class certification and trial plan in March 2017. The company filed its opposition to class certification, motions to strike the testimony of three of the plaintiffs' experts and trial plan in April 2017. Prior to those motions being heard, the parties agreed to settle plaintiffs' claims on a class-wide basis for a total settlement payment of $115.0 and certain non-monetary relief. In June 2017, plaintiffs filed a motion for preliminary approval of the settlement and a motion to continue all case deadlines. In July 2017, the U.S. District Court granted the motion to continue all case deadlines. The U.S. District Court issued an order of preliminary approval in August 2017. The U.S. District Court held a hearing on plaintiffs' motion for final approval and class counsel's fee petition in February 2018. A special master was appointed to review class counsel's fee petition. The special master's report and recommendation must be filed with the court by May 2018. No further dates have been set. Three state court cases related to the cyber attack are presently proceeding outside of this multidistrict litigation. There remain open regulatory investigations into the incident that are not directly impacted by the multidistrict litigation settlement. Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. It operates through three segments: Commercial & Specialty Business, Government Business, and Other. The company offers a spectrum of network-based managed care health benefit plans to large and small group, individual, Medicaid, and Medicare markets. Its managed care plans include preferred provider organizations; health maintenance organizations; point-of-service plans; traditional indemnity plans and other hybrid plans, such as consumer-driven health plans; and hospital only and limited benefit products. The company is based in Indianapolis, Indiana. ANTHEM INC: Defendants to Seek 11th Circuit Appeal -------------------------------------------------- Anthem, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the defendants have filed a motion for certification under 28 U.S.C. Section 1292(b), requesting the District Court to amend its order to allow an appeal to the Eleventh Circuit Court of Appeals. Anthem said, "We are a defendant in multiple lawsuits that were initially filed in 2012 against the Blue Cross Blue Shield Association or BCBSA as well as Blue Cross and/or Blue Shield licensees, or Blue plans, across the country. The cases were consolidated into a single multi-district lawsuit called In re Blue Cross Blue Shield Antitrust Litigation that is pending in the United States District Court for the Northern District of Alabama, or the Court." Generally, the suits allege that the BCBSA and the Blue plans have engaged in a conspiracy to horizontally allocate geographic markets through license agreements, best efforts rules (which limit the percentage of non-Blue revenue of each plan), restrictions on acquisitions, rules governing the BlueCard and National Accounts programs and other arrangements in violation of the Sherman Antitrust Act, or Sherman Act, and related state laws. The cases were brought by two putative nationwide classes of plaintiffs, health plan subscribers and providers. Subscriber and provider plaintiffs each filed consolidated amended complaints in July 2013. Consolidated amended subscriber complaints have been brought on behalf of putative state classes of health plan subscribers in Alabama, Arkansas, California, Florida, Hawaii, Illinois, Indiana, Kansas, Kansas City, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Rhode Island, South Carolina, Tennessee, Texas, Vermont, and Virginia, all of which have been consolidated into the multi-district lawsuit. Defendants filed motions to dismiss in September 2013. In June 2014, the Court denied the majority of the motions, ruling that plaintiffs had alleged sufficient facts at that stage of the litigation to avoid dismissal of their claims. Following the subsequent filing of amended complaints by each of the subscriber and provider plaintiffs in 2014, and again in November 2016 and April 2017 adding new named plaintiffs and new factual allegations, the company filed its answers and asserted its affirmative defenses in December 2014 and May 2017, respectively. In February 2017, the Court granted in part defendants' motion for summary judgment based on the filed rate doctrine, finding that the damages claims of certain named Alabama subscribers are barred under federal law. Subscribers filed a motion to reconsider the Court's order, which was denied without prejudice to plaintiffs' right to raise the issue at a later date. In April 2017, the Court of Appeals for the Eleventh Circuit affirmed a lower court ruling in a related declaratory judgment action, Musselman v. Blue Cross and Blue Shield of Alabama, et al., that the antitrust conspiracy claims being asserted by a subset of putative provider class members were released a decade ago by class action settlements in In re Managed Care Litigation. In June 2017, the Court denied defendants' motion to dismiss certain of the claims in provider plaintiffs' latest consolidated complaint. Briefing on the relevant standard of review for the claims asserted under the Sherman Act, or standard of review, commenced in July 2017. In August 2017, provider plaintiffs moved for partial summary judgment against Anthem on the basis of collateral estoppel on several issues discussed in United States v. Anthem, Inc., 236 F. Supp. 3d 171 (D.D.C. 2017). That motion was heard in October 2017, and is pending. An order regarding the standard of review and the single entity defense was issued in April 2018. The order granted subscriber plaintiffs' motion for partial summary judgment on the application of the per se rule as the standard of review. It granted in part and denied in part provider plaintiffs' motion for partial summary judgment. It granted in part and denied in part defendants' motion for summary judgment on plaintiffs' standard of review and quick look claims and denied subscriber plaintiffs' motion for partial summary judgment on defendants' single entity defense. The Court found that defendants' aggregation of geographic market allocations and output restrictions are due to be analyzed under a per se standard of review. The BlueCard program and other alleged Section 1 Sherman Act violations are due to be analyzed under the rule of reason standard of review. Finally, there remain genuine issues of material fact as to whether defendants operate as a single entity with regard to the enforcement of the Blue Cross Blue Shield trademarks. Also, in April 2018, the defendants filed a motion for certification under 28 U.S.C. Section 1292(b), requesting the Court to amend its order to allow an appeal to the Eleventh Circuit Court of Appeals. No dates have been set for either the pretrial conference or trials in these actions. Anthem said, "We intend to vigorously defend these suits; however, their ultimate outcome cannot be presently determined." Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. It operates through three segments: Commercial & Specialty Business, Government Business, and Other. The company offers a spectrum of network-based managed care health benefit plans to large and small group, individual, Medicaid, and Medicare markets. Its managed care plans include preferred provider organizations; health maintenance organizations; point-of-service plans; traditional indemnity plans and other hybrid plans, such as consumer-driven health plans; and hospital only and limited benefit products. The company is based in Indianapolis, Indiana. APPLE INC: Must Face Class Action Over PowerBeats Headphones ------------------------------------------------------------ Helen Christophi, writing for Courthouse News Service, reported that Apple will remain on the hook for a class action lawsuit claiming its Powerbeats headphones stop working when they come into contact with sweat or water, a federal judge ruled on May 17. U.S. District Judge Richard Seeborg green-lighted fraud-based claims related to the headphones' battery life while dismissing fraud-based claims related to water resistance with leave to amend. He tossed a negligence claim. Judge Seeborg further ruled the plaintiffs have standing to seek a court order blocking Apple from marketing the headphones as water-resistant and capable of lasting six to 12 hours on one charge. "Not only have plaintiffs established an inability to rely on Powerbeats' advertising, but several have actually averred that they replaced and/or purchased the product multiple times, believing that the defects would be fixed," Judge Seeborg wrote in his 18-page order. "It is difficult to imagine what more Apple expects plaintiffs to allege in order to establish that they have lost faith in their ability to rely on Powerbeats marketing. For these reasons, plaintiffs may seek injunctive relief." Seven plaintiffs sued Apple in September 2017 on behalf of nationwide and state classes in California, Florida, Pennsylvania, Illinois, Louisiana and Texas. They claim Apple's wireless Powerbeats 2 and 3 headphones malfunction and fail to hold a charge when used while sweating during exercise. Apple acquired headphone-makers Beats Music and Beats Electronics in May 2014, and released the Powerbeats 2 headphones the following month. Powerbeats 3 followed two years later. Cleveland Cavaliers basketball player LeBron James co-created the headphones, according to the summary of the case in Seeborg's order. In its product advertising, Apple states that the Powerbeats 2 headphones have a "6 hour rechargeable battery," and the Powerbeats 3 headphones "Up to 12 hr battery life." According to the complaint, the company implies the headphones are suitable for exercising with the phrase, "Sweat and water resistance provides the necessary durability for strenuous workouts and weather." Apple's television commercials feature both LeBron James and tennis star Serena Williams wearing Powerbeats while surfing, spraying themselves with water or "drenched in sweat" while working out, the complaint says. Christopher Bizzelle, one of the plaintiffs, says he bought the Powerbeats 2 headphones for $139 because the packaging promised a six-hour battery life and sweat resistance, featuring images of Lebron James "glistening with sweat." He claims the headphones stopped charging five months after he bought them and eventually stopped switching on, according to Seeborg's order. Apple sent Mr. Bizzelle five replacement pairs, but each pair broke, according to Mr. Bizelle. He says a pair of Powerbeats 3 and two replacement pairs likewise stopped working. Another plaintiff, Deonn Morgan, claims she also bought a pair of Powerbeats 2 headphones for $139 after seeing commercials featuring LeBron James using the headphones while exercising and reading statements on the box guaranteeing they were sweat and water-resistant. Within six months, the headphones malfunctioned, as did a replacement pair, according to the order "Had Ms. Morgan known Powerbeats were not 'sweat & water resistant,' did not have a battery that would last 6 hours, and/or were not 'built to endure,' she would not have purchased them or would have paid significantly less for them," the complaint states. Apple did not respond on May 17 to an email seeking comment. In his ruling, Judge Seeborg found that the battery-life fraud claims had been pleaded sufficiently, but that the sweat and water-resistance fraud claims had not been because the plaintiffs had failed to specify whether they had "even sweated during exercise," Judge Seeborg said. He went on to call the plaintiffs' negligence claim "fatally deficient." The plaintiffs attempted to establish a "special relationship" between consumers and Apple permitting monetary recovery, but Judge Seeborg found such a relationship only exists when a manufacturer markets a product to a specific customer, not to the general public. But Judge Seeborg advanced the plaintiffs' state Consumer Legal Remedies Act claim, finding that their allegations that Apple knew or should have known about the defective headphones due to customer complaints and a "constant stream of returned Powerbeats" were sufficient to warrant discovery into what Apple really knew. Express warranty claims based on Apple's one-year warranty were dismissed with leave to amend, but water-resistance and battery- life express warranty claims will proceed, as will implied warranty claims. Hassan Zavareei with Tycko & Zavareei in Washington represents the plaintiffs, and Michelle Doolin with Cooley in San Diego represents Apple. Neither could be reached for comment on May 17. ATHENAHEALTH INC: Suit by St. Louis Heart Center Dismissed ---------------------------------------------------------- Athenahealth, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the U.S. District Court for the Eastern District of Missouri has dismissed the lawsuit by St. Louis Heart Center, Inc. based on the parties' joint stipulation of dismissal. On May 21, 2015, a class action petition was filed by St. Louis Heart Center, Inc. in the State Circuit Court of St. Louis County, Missouri, against athenahealth. The petition alleges that the company violated the Telephone Consumer Protection Act. Following service, the company removed the case to federal court in the United States District Court for the Eastern District of Missouri, Case No. 4:15-cv-01215. After filing the company's answer in the case on March 8, 2016, the company moved for and obtained a stay of the action pending a decision by the U.S. Court of Appeals for the D.C. Circuit in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, regarding the validity of a regulation promulgated by the Federal Communications Commission, or FCC, relating to the claims asserted in the petition. On March 31, 2017, the U.S. Court of Appeals for the D.C. Circuit issued its decision, invalidating the FCC regulation in question. On April 7, 2017, the company notified the federal court of the U.S. Court of Appeals for the D.C. Circuit's decision in Bais Yaakov. On joint motion of the parties, the federal court on May 9, 2017 reinstated the stay, pending any further appellate review of the D.C. Circuit's decision in Bais Yaakov. On September 5, 2017, a petition for a writ of certiorari as to the D.C. Circuit's decision in Bais Yaakov was filed with the United States Supreme Court, which the Court denied on February 20, 2018. On March 13, 2018, the United States District Court for the Eastern District of Missouri lifted the stay. On March 23, 2018, the District Court ordered the case dismissed based on the parties' joint stipulation of dismissal. Athenahealth, Inc., together with its subsidiaries, provides network-based medical record, revenue cycle, patient engagement, care coordination, and population health services for medical groups and health systems. The company is based in Watertown, Massachusetts. AV HOMES: Bid for Class Cert. in Solivita-Related Suit Pending -------------------------------------------------------------- AV Homes, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the court has yet to rule on the plaintiffs' motion for class certification, in a class action suit filed in the 10th Judicial Circuit, Polk County, Florida. On April 26, 2017, the company received notice of a Class Action Complaint filed in the Circuit Court for the 10th Judicial Circuit, Polk County, Florida, generally alleging that the collection of club membership fees in connection with the use and enjoyment of the club facilities located within the Solivita community is illegal in that it violates, among other laws, Florida's Homeowners' Association Act ("FLHOA") and Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). It also generally alleges that certain other actions by us have violated FLHOA and FDUTPA. The complaint seeks relief in various forms including recovery for the prior payment of club membership fees and an injunction to prohibit the future collection of club membership fees. AV Homes said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that on June 9, 2017, the company filed an amended motion to dismiss this matter, which was heard on June 13, 2017. On August 8, 2017, the judge issued an order denying in part and granting in part the motion to dismiss. Plaintiffs were provided leave to amend the FDUTPA claims and filed an amended complaint on September 15, 2017. The Company filed its amended answer on September 29, 2017 along with certain affirmative defenses. The amended complaint also contains counterclaims against the plaintiffs for breach of contract and tortious interference with contractual relations, among other claims. On October 5, 2017, the Company also filed a motion for summary judgment. The motion for summary judgment was heard on December 8, 2017, according to the Company's recent report. On January 23, 2018, the court ruled, granting the company's motion for summary judgment in part and denying it in part. Importantly, the court ruled that the company's club operations in Solivita constitute commercial property under the FLHOA, that the club facilities are not common areas of the homeowners' association and that nothing in the FLHOA prevents a developer from owning club operations for profit, as is the case in this instance. As a result of the foregoing ruling, it is the company's continuing contention that every count of the plaintiffs' class action lawsuit must ultimately fail as each is without merit and rely, directly or indirectly, on an interpretation of the FLHOA rejected by the court. On April 6, 2018, the court heard arguments relative to the plaintiffs' amended motion for class certification pursuant to which the plaintiffs seek to certify a class of "persons who currently own, or previously owned, a home in Solivita, who have paid, or have been obligated to pay, a Club Membership Fee under the Club Plan Declaration on or after April 26, 2013." The court has yet to rule on the plaintiffs' motion for class certification. AV Homes, Inc. is engaged in the business of homebuilding and community development in Florida, the Carolinas, Arizona and Texas. The company also engages to a limited degree in other real estate activities, such as the operation of amenities and the sale of land for third-party development. The company manages its business through four reportable segments: Florida, the Carolinas, Arizona and Texas. The company is based in Scottsdale, Arizona. AVINGER INC: Earmarks $1.76 Million for Litigation Settlement ------------------------------------------------------------- Avinger, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the company has included $1.76 million for litigation settlement within accrued expenses and other current liabilities as of December 31, 2017. Between May 22, 2017 and May 25, 2017, three purported class action lawsuits were filed in the Superior Court of the State of California, County of San Mateo ("State Court"), against the Company, certain of its officers and directors and the underwriters of the Company's January 2015 IPO. The actions were captioned Grotewiel v. Avinger, Inc., et al., No. 17-CIV-02240, Gonzalez v. Avinger, Inc., et al., No. 17-CIV- 02284, and Olberding v. Avinger, Inc., et al., No. 17-CIV-02307. These lawsuits allege that the registration statement for the Company's IPO made false and misleading statements and omissions in violation of the Securities Act of 1933. Plaintiffs seek to represent a class of purchasers of the company's common stock in and/or traceable to its IPO. Plaintiffs seek, among other things, unspecified compensatory damages, interest, costs, rescission, and attorneys' fees. On June 12, 2017, defendants removed these actions to the United States District Court for the Northern District of California ("Federal Court"), where they were captioned Grotewiel v. Avinger, Inc., No. 17-cv-03400, Gonzalez v. Avinger, Inc., No. 17-cv-03401, and Olberding v. Avinger, Inc., No. 17-cv-03398, and where the actions were related and assigned to the same judge. On October 11, 2017, the Federal Court appointed a lead plaintiff and approved the selection of a lead counsel in the Grotewiel action ("Federal Action"). An amended complaint in the Federal Action is due on November 21, 2017. On June 22, 2017, and June 23, 2017, plaintiffs Olberding and Gonzalez moved to remand their cases to the State Court. Defendants opposed these motions. On July 21, 2017, the Federal Court granted the motions to remand the Olberding and Gonzalez actions to the State Court. On August 9, 2017, the State Court consolidated the Olberding and Grotewiel actions under the caption Gonzalez v. Avinger, Inc., et al., No. 17-CIV-02284 ("State Action"). On September 22, 2017, an amended complaint was filed in the State Action. On October 31, 2017, the parties in the State Action stipulated to a stay of proceedings until judgment is entered in the Federal Action. On November 2, 2017, pursuant to stipulation of the parties, the State Court entered an order staying proceedings in the State Action until judgment is entered in the Federal Action. The Company and its directors believes that the foregoing lawsuits are entirely without merit; however, in the interest of avoiding the cost and disruption of continuing to defend against these lawsuits, on February 8, 2018, the Company participated in a mediation to explore whether a settlement could be reached. While a settlement was not reached then, the parties continued discussions and they ultimately reached agreement. On March 19, 2018, the Company entered into a binding memorandum of understanding to settle the securities class actions pending against the Company and several of its officers and directors. The settlement is for a total of $5 million and, if approved by the court, will result in a full release of claims against all defendants. The settlement is subject to final documentation, notice to class members, and approval of the court. The Company's total contribution to the settlement fund is $1.76 million. As such, the Company included $1.76 million for litigation settlement within accrued expenses and other current liabilities as of December 31, 2017. Avinger, Inc., a commercial-stage medical device company, designs, manufactures, and sells image-guided and catheter-based systems used by physicians to treat patients with peripheral arterial disease (PAD) in the United States and Europe. The company is based in Redwood City, California. BAI BRANDS: Justin Timberlake Among Defendants in Class Action -------------------------------------------------------------- Daniel Goldblatt and Ryan Naumann, writing for Blast, report that Justin Timberlake is being sued as part of a class action lawsuit against Bai claiming the beverage company deceived consumers by saying their drinks are all-natural when they actually are not. A California-based man named Kevin Branca filed suit in April against Bai Brands, Dr. Pepper Snapple Group, Dr. Pepper president Larry Young and Bai founder Ben Weiss. The original lawsuit did not name Timberlake as a defendant, but an amended complaint added him. According to the lawsuit, Bai's labeling is false and misleading, saying they contain only natural ingredients and are flavored only with natural ingredients when they actually contain undisclosed artificial flavors in violation of state and federal law. The suit says all the products contain a synthetic chemical flavoring compound identified as "malic acid," which is an inexpensive synthetic chemical used in processed food products to make the taste like tangy fresh fruit. Timberlake came on board as an investor in 2016, according to Fortune. He has the title of Chief Flavor Officer of Bai Brands and said at the time, "This partnership was created from a shared desire to help people put better ingredients in their bodies without sacrificing taste." According to the lawsuit, Justin Timberlake's "monetary assistance, creative inputs and marketing of Bai helped elevate the better-for-you and name-recognition of the brand." The lawsuit claims Timberlake was a knowing participant in the alleged fraud, saying, "Defendant Bai and Defendant Timberlake knowingly entered into a single agreement and/or multiple agreements to commit fraud and other unlawful acts by agreeing to promote artificially flavored beverage products as if they were solely naturally flavored without synthetic chemical ingredients." Furthermore, the lawsuit claims "Timberlake aided this scheme by agreeing to promote the Products and their ingredients on a nationally aired commercial advertisement during the 2017 Super Bowl, which reached millions of consumers, which was an essential tool to carry out the fraudulent sales and marketing of the Bai Products." The suit is seeking an order requiring Bai Brands and Timberlake to disgorge any money received from the result of the improper and misleading labeling, advertising and marketing along with punitive damages. [GN] BEHR PROCESS: Court Extends Status Report Filing in "Rose" ---------------------------------------------------------- The United States District Court for the Western District of Washington, at Seattle, in the case captioned LINNE ROSE, individually and on behalf of all others similarly situated, Plaintiffs, v. BEHR PROCESS CORP., BEHR PAINT CORP., MASCO CORP., THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC., Defendants, No. 2:17-cv-01754-MJP (W.D. Wash.), extended the time for parties to submit the Joint Status Report in light of the pending imminent nationwide settlement, to conserve judicial resources and to promote efficiency. A full-text copy of the District Court's May 3, 2018 Order is available at https://tinyurl.com/yarmrd2u from Leagle.com. Linne Rose, individually and on behalf of all others similarly situated, Plaintiff, represented by Daniel K. Bryson -- dan@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Patrick M. Wallace -- pat@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Scott C. Harris -- scott@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Eric Riley Nusser -- eric@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Behr Process Corp., Behr Paint Corp. & Masco Corp., Defendants, represented by Elliot C. Copenhaver -- copenhaver@carneylaw.com - - CARNEY BADLEY SPELLMAN, Emilia L. Sweeney -- Sweeney@carney.com -- CARNEY BADLEY SPELLMAN, Kathleen P. Lally -- kathleen.lally@lw.com -- LATHAM & WATKINS, pro hac vice & Jason M. Kettrick -- kettrick@carney.com -- CARNEY BADLEY SPELLMAN. Home Depot Inc. & Home Depot USA Inc., Defendants, represented by Jeffrey Douglass -- jdouglass@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice, John T. Fetters -- jfetters@millsmeyers.com -- MILLS MEYERS SWARTLING, Robert Alpert -- ralpert@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice & Caryn Geraghty Jorgensen -- cjorgensen@millsmeyers.com -- MILLS MEYERS SWARTLING. BELLE GLADE: Faces "Monroe" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Stefondra Monroe, and all others similarly situated v. Belle Glade Chevrolet Buick Cadillac, Inc., Case No. 9:18-cv-80523-RLR (S.D. Fla., April 20, 2018), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. Belle Glade Chevrolet Buick Cadillac, Inc. owns and operates a car dealership company in Palm Beach County, Florida. [BN] The Plaintiff is represented by: Robert S. Norell, Esq. ROBERT S. NORELL, P.A. 300 N.W 70th Avenue, Suite 305 Plantation, FL 33317 Telephone: (954) 617-6017 Facsimile: (954) 617-6018 E-mail: rob@floridawagelaw.com BLUE STAR: Court Awards $7K Attorney' Fees in "Martinez" -------------------------------------------------------- The United States District Court for the Western District of Michigan, Southern Division, granted in part and denied in part Plaintiffs' Motion for Expenses pursuant to Federal Rule of Civil Procedure 37(a)(5), relating to their successful motion to compel discovery in the case captioned RICARDO MARTINEZ, et al., Plaintiffs, v. BLUE STAR FARMS, INC., et al., Defendants, Case No. 1:16-cv-00681-RJJ-PJG (W.D. Mich.). This is an action brought by migrant and seasonal agricultural workers who harvested blueberries for the defendants between 2011 and 2013. They allege that the defendants employed approximately 140 workers each season to pick blueberries on the defendants' 460-acre fields. The Court has certified this as a class action, defining the class as follows: All migrant and seasonal agricultural workers employed at Blue Star Farms to harvest blueberries in 2011, 2012, and 2013. The Court granted the plaintiffs' second motion to compel discovery. The Court ordered the defendants to produce to the plaintiffs all W-4 and I-9 forms previously withheld from employee files responsive to the plaintiffs' document request. The Court also ordered the defendants to produce to the plaintiffs applications from all employee files for blueberry harvesters who worked during the 2011, 2012, or 2013 seasons, and those employees who submitted declarations in this case, to the extent these documents have not already been produced. The Court held plaintiffs' request for an award of attorneys' fees and costs associated with the second motion to compel in abeyance pending the show-cause hearing. The Court conducted the show-cause evidentiary hearing on November 21, 2017. With respect to possible sanctions, the Court noted, "I've heard nothing here that would remotely justify the failure to produce those documents. The only thing that remains is for me to determine the appropriate sanctions, and there will be sanctions." The Plaintiffs seek $11,805.00 in fees and $192.60 in costs. The Defendants object generally to the award of expenses, as well as to the amount sought by the plaintiffs. The record demonstrates plainly that the plaintiffs had sufficiently attempted a resolution of the discovery disputes before seeking the Court's intervention, and the defendants' positions regarding the discovery disputes were not substantially justified. The Plaintiffs' first motion to compel was filed some six months after serving their discovery requests. The Plaintiffs' actions in this regard can hardly be described as precipitous. Accordingly, the Court will award the plaintiffs reasonable attorney's fees and expenses that were incurred in bringing their motion to compel. The award of costs is the norm, rather than the exception. The Court having found a sufficient basis for awarding fees and costs, the only remaining issue is the reasonableness of the amount sought. The Supreme Court has explained that the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. The Defendants' failure to produce discovery caused the plaintiffs' counsel to expend time in making the motion to compel, but the questions presented in that motion were neither novel nor complex. Even assuming plaintiffs are correct in their characterization of the nature and complexity of the case overall, the Court must consider the novelty and difficulty of the questions presented in the motion to compel, and the skills needed to perform that legal service properly. There is nothing about the motion to compel that required specialized expertise that was unavailable in the Grand Rapids legal market; nor is there any reason to believe counsel from Migrant Aid lacked the resources to handle that motion. The Plaintiffs have competent local counsel in this case. The Plaintiffs were, of course, free to choose which counsel to assign to the motion to compel in this case and they have expressed valid reasons for their choice. The point is, however, that it was a choice, not a need, to use Chicago counsel to take the lead on the motion to compel. There is no basis for invoking an exception to the community market rule. Accordingly, the Court ordered the defendants to pay plaintiffs $7,130.10 as reimbursement for their reasonable expenses in bringing their motion to compel discovery. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available https://tinyurl.com/y8chrwu5 from Leagle.com. Ricardo Martinez, individually & Yolanda Garrido, individually and on behalf of others similarly situated, plaintiffs, represented by Teresa M. Hendricks -- thendricks@mmlap.com -- Michigan Migrant Legal Assistance Project, Inc., Mariza Gamez- Garcia, Michigan Migrant Legal Assistance Project, Inc., in Grand Rapids, Michigan, Marni Joy Willenson -- marni@willensonlaw.com - - Willenson Law, LLC & Benjamin O'Hearn, Michigan Migrant Legal Assistance Project, Inc. Janeth Mendez, individually and on behalf of others similarly situated, Pedro Guadiana, individually and on behalf of others similarly situated & Edgar Guadiana, individually and on behalf of others similarly situated, plaintiffs, represented by Benjamin O'Hearn, Michigan Migrant Legal Assistance Project, Inc. & Marni Joy Willenson, Willenson Law, LLC. Blue Star Farms, Inc. & Anthony Harry Marr, defendants, are represented by Brion Bannon Doyle, Esq., and Jeffrey David Koelzer, Esq., at Varnum Riddering Schmidt & Howlett LLP, in Grand Rapids, Michigan. BMW BANK: Foley & Lardner Attorney Discusses Class Action Ruling ---------------------------------------------------------------- Jaikaran Singh, Esq. -- jsingh@foley.com -- and John J. Atallah, Esq. -- jatallah@foley.com -- of Foley & Lardner LLP, in an article for The National Law Review, wrote that when the Third Circuit Court of Appeals issued its decision in City Select Auto Sales Inc. v. BMW Bank of North America, Inc., in the middle of last year, many interpreted the decision as significantly lowering the bar to certification of class actions. By recognizing, for the first time, the use of affidavits as a legitimate method of identifying class members, some wondered whether City Select was a shift away from the "administrative feasibility" requirement for ascertainability consistently upheld by the Third, Fourth, and Eleventh Circuits. Two recent district court decisions in In re Tropicana Orange Juice Mktg. & Sales Practices Litig. and Hargrove v. Sleepy's, LLC, demonstrate that the "administrative feasibility" requirement -- a requirement that to certify a class its members must be capable of being readily identified through an administratively feasible process - - remains alive and well in the Third Circuit. In City Select, the Third Circuit reversed the district court's denial of class certification of a claim under the Telephone Consumer Protection Act (TCPA) on lack of ascertainability grounds. The plaintiff, a car dealership, filed a class action case against BMW's financing arm, BMW Bank of North America (BMW), alleging that BMW, along with one of its vendors (Creditsmarts), had violated the TCPA by repeatedly sending unsolicited fax advertisements to several thousand dealerships across the country. The plaintiff sought certification of a nationwide class described as "auto dealerships included in the Creditsmarts database on or before December 27, 2012," and moved to compel production of the same database. The district court in New Jersey denied the dealership's motion to compel, and further denied class certification, explaining that the plaintiff had failed to demonstrate that class members could be identified using administratively feasible means. On appeal, the Third Circuit vacated and remanded for two reasons: First, our ascertainability precedents do not categorically preclude affidavits from potential class members, in combination with the Creditsmarts database, from satisfying the ascertainability standard. Second, because the Creditsmarts database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists based, in whole or in part, on that database. Put another way, the Third Circuit determined that the plaintiff had been unfairly disadvantaged by Creditsmarts' refusal to produce the very database that could potentially have been used, in combination with class member affidavits, to demonstrate an administratively feasible method of identifying class members. Some observed that by allowing class representatives to rely upon affidavits to identify class members, City Select marked a notable departure from prior Third Circuit decisions where the court expressed class member identification concerns with the use of affidavits. While not entirely ruling out the use of affidavits to identify class members, the Third Circuit's decision in City Select acknowledged that "[a]ffidavits from potential class members, standing alone, without 'records to identify class members or a method to weed out unreliable affidavits,' will not constitute a reliable and administratively feasible means of determining class membership." City Select therefore clarified that the same standards previously applied by the court in assessing ascertainability for class certification remained in effect in the Third Circuit. Two recent New Jersey District Court decisions demonstrate that City Select did not alter the "heightened" ascertainability requirement in the Third Circuit. On January 22, 2018, the U.S. District Court for the District of New Jersey issued its decision in In re Tropicana, denying class certification for lack of ascertainability, among other grounds. In that case, the plaintiffs alleged that Tropicana had violated common law and state consumer protection laws in connection with the sale of orange juice. Specifically, the plaintiffs alleged that "[d]espite Tropicana's '100% pure and natural' claim, Tropicana's [not from concentrate] juice is heavily processed, colored, and flavored -- it is neither 100% pure nor 100% natural orange juice." In support of their class certification motion, the plaintiffs proposed a methodology for identifying class members whereby their expert would create a computer program to reconcile bulk retailer loyalty card data against the identifying information submitted by putative class members. The same expert would then create a second computer program to "cross-check" the results and ensure that putative class members had been properly identified. The district court in Tropicana engaged in a lengthy ascertainability analysis, ultimately concluding plaintiffs had failed to show that their proposed methodology for identifying class members employed a "reliable and administratively feasible mechanism," as required under the Third Circuit's decision in Byrd v. Aaron's, Inc. To the contrary, the court opined, "Dr. Narayanan's methodology assumes that the retailer data exists and contains the necessary information required to properly 'cross- check' against putative class members' claim forms. It further assumes that all retailers will produce their consumer data to him in a useable electronic format." The court further found that the plaintiffs' proposed methodology would necessarily exclude persons for whom retailer data was unavailable, explaining, "class member will still be bound by any judgment on the merits emanating from this Court. That defies one of the principal rationales of ascertainability -- identifying persons bound by the final judgment -- and simply cannot be permitted." The Third Circuit, in City Select, had recognized that "[t]he determination whether there is a reliable and administratively feasible mechanism for determining whether putative members fall within the class definition must be tailored to the facts of the particular case." Adopting that rationale and distinguishing the case against Tropicana from City Select, the district court instead drew a parallel to the Third Circuit's 2013 decision in Carrera v. Bayer Corp., which similarly involved products distributed to consumers through a broad variety of retail stores unaffiliated with the defendant. In Carrera, the Third Circuit vacated the district court's order granting class certification and remanded for further consideration on the grounds that the plaintiff's exclusive reliance on affidavits from potential class members was not a sufficiently reliable means of identification. Likewise, in In re Tropicana, the district court concluded that the plaintiffs' proposed method for identifying class members would run afoul of the two critical rationales underlying the ascertainability requirement: "facilitating opt-outs and identifying persons bound by the final judgment." More recently, on February 28, 2018, the New Jersey district court issued its decision in Hargrove v. Sleepy's, LLC, another case involving the denial of class certification on ascertainability grounds. In Hargrove, a group of former delivery drivers for Sleepy's, LLC, a New York-based mattress retailer, filed a complaint under the Employee Retirement and Income Security Act (ERISA), alleging that Sleepy's had misclassified them as independent contractors, rather than employees, and thereby denied them base and overtime wages due under New Jersey state law. In its opinion and order denying class certification, the district court concluded that the plaintiffs were unable to offer a methodology by which individuals falling within the class definition could be identified in a reliable and administrative feasible manner. The court found instead that, even following the deposition of the paralegal at the plaintiff's firm who was primarily responsible for reconciling driver rosters, gate logs, and pay statements to identify class members, the several "gaps" in the record "would make assessing the size, as proposed by the [p]laintiff, tenuous or speculative." In other words, because the records available to the parties did not enable an administratively feasible identification of class members, the plaintiffs had run afoul of the prohibition on "specific fact- finding as to each individual" previously set forth in the Third Circuit's decision in Marcus v. BMW of North America. Taken together, In re Tropicana and Hargrove demonstrate that the administrative feasibility requirement remains a prime consideration in class certification proceedings within the Third Circuit. While City Select clarified that in certain limited circumstances, class member affidavits might find their place in ascertaining class membership, the overarching requirement is that class members be identified accurately and without the need for individualized fact-finding. [GN] BOFI HOLDING: Dismissal of Securities Suit Under Appeal ------------------------------------------------------- BofI Holding, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a notice of appeal has been filed in the consolidated class action suit filed in the U.S. District Court for the Southern District of California. On October 15, 2015, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a putative class action lawsuit styled Golden v. BofI Holding, Inc., et al, and brought in United States District Court for the Southern District of California (the "Golden Case"). On November 3, 2015, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a second putative class action lawsuit styled Hazan v. BofI Holding, Inc., et al, and also brought in the United States District Court for the Southern District of California (the "Hazan Case"). On February 1, 2016, the Golden Case and the Hazan Case were consolidated as In re BofI Holding, Inc. Securities Litigation, Case #: 3:15-cv-02324-GPC-KSC (the "First Class Action"), and the Houston Municipal Employees Pension System was appointed lead plaintiff. The First Class Action complaint was amended by a certain Consolidated Amended Class Complaint filed on April 11, 2016. On September 27, 2016, the Court dismissed the First Class Action, with leave to amend, as to defendants Andrew Micheletti, Paul Grinberg, Nicholas Mosich and James Argalas. The Court denied the Motion to Dismiss with respect to the Company and Gregory Garrabrants. On November 25, 2016, the putative class action plaintiff filed a Second Amended Class Action Complaint (the "Second Amended Complaint"), which includes the previously dismissed defendants. On December 23, 2016, the Company and other defendants filed a motion to dismiss such Second Amended Complaint. On May 23, 2017, the Court granted in part and denied in part the defendants; motion to dismiss the Second Amended Complaint. On September 28, 2017, the Company and other defendants filed a motion for judgment on the pleadings, which is currently pending. On December 1, 2017, the Court granted the motion to dismiss with leave. On December 22, 2017, the putative class action plaintiff filed a Third Amended Class Action Complaint (the "Third Amended Complaint"). The Second and Third Amended Complaints allege that the Company and other named defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by failing to disclose wrongful conduct that was alleged in a complaint filed in connection with a wrongful termination of employment lawsuit filed on October 13, 2015 (the "Employment Matter") and that as a result the Company's statements regarding its internal controls, as well as portions of its financial statements, were false and misleading. On January 19, 2018, the Company and other defendants filed a motion to dismiss such Third Amended Complaint. On March 21, 2018, the Court entered a final order granting defendants' motion and dismissing the Third Amended Complaint. On March 28, 2018, the plaintiff filed a notice of appeal. BofI Holding, Inc. operates as the holding company for BofI Federal Bank that provides consumer and business banking products in the United States. The company offers deposits products, including consumer and business checking, demand, savings, and time deposit accounts. BOFI HOLDING: June 15 Hearing on Bid to Dismiss "Mandalevy" Suit ---------------------------------------------------------------- BofI Holding, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a hearing for the motion to dismiss in the putative class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al., is scheduled for June 15, 2018. On April 3, 2017, the Company, its Chief Executive Officer and its Chief Financial Officer were named defendants in a putative class action lawsuit styled Mandalevy v. BofI Holding, Inc., et al, and brought in United States District Court for the Southern District of California (the "Mandalevy Case"). The Mandalevy Case seeks monetary damages and other relief on behalf of a putative class that has not been certified by the Court. The complaint in the Mandalevy Case (the "Mandalevy Complaint") alleges a class period that differs from that alleged in the First Class Action, and that the Company and other named defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by failing to disclose wrongful conduct that was alleged in a March 2017 media article. On June 2, 2017, lead plaintiff motions were filed on behalf of three members of the putative class and on July 17, 2017, the Company and other defendants filed an opposition to such motions. On February 20, 2018, the lead plaintiff filed a class action amended complaint, enlarging the class period, setting forth additional allegations and adding defendants. On April 6, 2018, the defendants filed a motion to dismiss the class action amended complaint. A hearing for the motion to dismiss is scheduled for June 15, 2018. The Company and the other named defendants dispute the allegations advanced by the plaintiffs in the Mandalevy Case, and are vigorously defending against the Mandalevy Complaint. BofI Holding, Inc. operates as the holding company for BofI Federal Bank that provides consumer and business banking products in the United States. The company offers deposits products, including consumer and business checking, demand, savings, and time deposit accounts. BRAVO BRIO: Faces "Dagenbach" Shareholder Class Action ------------------------------------------------------ Bravo Brio Restaurant Group, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 26, 2018, that the company is facing a purported shareholder class action suit entitled, Jon Dagenbach v. Bravo Brio Restaurant Group, Inc. et al. On April 23, 2018, Mr. Jon Dagenbach filed a purported shareholder class action against the Company and the individual members of the Company's Board of Directors (collectively, the "Company Board") in the United States District Court for the Southern District of Ohio. The case is captioned Jon Dagenbach v. Bravo Brio Restaurant Group, Inc. et al., No. 2:18-cv-00375-ALM. Mr. Dagenbach's lawsuit alleges violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the proposed merger contemplated by that certain Agreement and Plan of Merger, dated as of March 7, 2018, by and among the Company, Bugatti Parent, Inc. and Bugatti Merger Sub, Inc. (the "Merger Agreement"). Mr. Dagenbach alleges that the Company's proxy statement filed with the Securities and Exchange Commission on April 18, 2018 contains certain material omissions and misstatements and is seeking to enjoin or rescind the transactions contemplated by the Merger Agreement and requests attorneys' fees and damages in an unspecified amount. On April 24, 2018, Mr. Dagenbach filed a motion for a preliminary injunction to prevent the consummation of the transactions contemplated by the Merger Agreement and on April 25, 2018, Mr. Dagenbach filed a motion to expedite proceedings relating to its motion for a preliminary injunction. Bravo Brio said, "The defendants believe these claims are without merit and intend to vigorously defend against these claims." Bravo Brio Restaurant Group, Inc. owns and operates Italian restaurants in the United States. It operates full-service Italian restaurants under the BRAVO! Cucina Italiana brand name; Italian chophouse restaurants under the BRIO Tuscan Grille brand name; and full-service American-French bistro restaurant under the Bon Vie brand name. The company's restaurants primarily offer Italian food and wine. The company is based in Columbus, Ohio. BRIGHT HOUSE: Judgment on Pleading in "Sliwa" TCPA Suit Denied -------------------------------------------------------------- The United States District Court for the Middle District of Florida, Fort Myers Division, denied Defendant's Motion for Judgment on the Pleadings in the case captioned STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff, v. BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants, and UNITED STATES OF AMERICA, Intervenor, Case No. 2:16-cv-235-FtM-29MRM (M.D. Fla.). The Plaintiff has filed a five-count Amended Class Action Complaint against Bright House and Advanced Telesolutions, Inc. (ATI) alleging violations of, and seeking money damages and injunctive relief pursuant to, the Telephone Consumer Protection Act (TCPA), 47 U.S.C. Section 227 et seq., the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. Section 559.55 et seq., and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Section 1692 et seq. Bright House's Twenty-Second Affirmative Defense alleges generally that as applied, the TCPA violates the First Amendment of the United States Constitution. For example, the TCPA imposes content-based restrictions on speech that fail to withstand strict scrutiny. An asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court. It is clear from the Motion for Judgment on the Pleadings, however, that Bright House's concrete and particularized First Amendment injury is the fact that it is being sued and may be required to pay a money judgment for violating a statute that itself violates the First Amendment. The Court held that while Bright House has standing to raise a First Amendment defense to the Plaintiff's TCPA claims, Bright House is not entitled to a judgment on those claims, since in light of the severability of the Government-Debt Exception a finding that the anti-robocall provision is unconstitutional would have no effect on Bright House's exposure to liability under the TCPA. Because, in turn, this affirmative defense is insufficient, the Court strikes it under Rule 12(f)(1). A full-text copy of the District Court's March 29, 2018 Opinion and Order is available at https://tinyurl.com/ya6azms5 from Leagle.com. Stephan H. Sliwa, individually and on behalf of all others similarly situated, Plaintiff, represented by Amanda J. Allen, The Consumer Protection Firm,4060 Henderson Boulevard, Tampa, Fl, 33629, Amy L. Wells -- AWells@Keoghlaw.com -- Keogh Law, LTD, pro hac vice, Donald L. Sawyer -- DSawyer@KeoghLaw.com -- Keogh Law, LTD, pro hac vice, Stephen J. Stanley, Stephen J. Stanley, Attorney & Counselor at Law, William Peerce Howard, The Consumer Protection Firm, 4060 Henderson Boulevard, Tampa, Fl, 33629 & Keith J. Keogh -- Keith@KeoghLaw.com -- Keogh Law, LTD, pro hac vice. Bright House Networks, LLC, Defendant, represented by Ryan D. Watstein, Kabat Chapman & Ozmer LLP & Nathan David Chapman, Kabat Chapman & Ozmer LLP. Advanced Telesolutions, Inc., Defendant, represented by Andrew J.J. Collinson -- acollinson@hinshawlaw.com -- Hinshaw & Culbertson, LLP, Justin M. Penn -- jpenn@hinshawlaw.com -- Hinshaw & Culbertson, LLP & Ruel W. Smith -- rsmith@hinshawlaw.com -- Hinshaw & Culbertson, LLP. BRISTOL MYERS: Faces Suit Related to Checkmate -026 Trial --------------------------------------------------------- Bristol-Myers Squib Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit filed in the U.S. District Court for the Southern District of New York, related to CheckMate -026 clinical trial in lung cancer. Since February 2018, two separate putative class action complaints were filed in the U.S. District for the Northern District of California and in the U.S. District Court for the Southern District of New York against the Company, the Company's Chief Executive Officer, Giovanni Caforio, the Company's Chief Financial Officer, Charles A. Bancroft and certain former and current executives of the Company. The case in California has been voluntarily dismissed. The remaining complaint alleges violations of securities laws for the Company's disclosures related to the CheckMate -026 clinical trial in lung cancer. Bristol-Myers said, "The Company intends to defend itself vigorously in this litigation." Bristol-Myers Squibb Company is a global specialty biopharmaceutical company whose mission is to discover, develop and deliver innovative medicines that help patients prevail over serious diseases. The company is based in New York. CALGARY STAMPEDE: Sex Abuse Class Action Lawsuit in Works --------------------------------------------------------- Ottawa Citizen reports that a law firm is encouraging victims in a sex abuse case to be part of a lawsuit against the man convicted of the crimes and the Calgary Stampede Foundation. On May 2, Philip Heerema was sentenced to 10 years after earlier pleading guilty to charges that included sexual assault, sexual exploitation, luring and making child pornography. The six victims were youths between the ages of 15 and 17 who attended The Young Canadians School of Performing Arts. In a statement of claim filed last year and amended in January, JSS Barristers is seeking court approval to launch a class action lawsuit against Heerema and the foundation, which operates the school. The claim alleges Heerema, who worked for decades with the school, breached his duty as an educator by sexually abusing the students and alleges the foundation is vicariously liable because it was aware of his conduct. Statements of claim contain allegations that have not been proven in court. "The Young Canadians had actual knowledge of Heerema's inappropriate conduct, allegations of sexual assault and sexual exploitation with respect to some of the class members as a result of one or more complaints made by one or more faculty members of the Young Canadians," reads the claim. Foundation officials were not immediately available for comment. Earlier this year Warren Connell, CEO of the foundation, told Global News it had no knowledge of the some of the allegations in the lawsuit and refuted others. The lawsuit, which has not yet been certified, is seeking general and special damages to be determined by the court. The Young Canadians school works with students between the ages of 11 and 18. Their training in dance, voice and performance culminates with grandstand shows during the Calgary Stampede every July. During Heerema's trial court heard that he identified, targeted, relentlessly pursued and groomed the teen boys. The judge said Heerema manipulated and preyed on their vulnerability in abusing his position of trust. JSS Barristers said it represents victims of the abuse and in a release on May 3 urged others to join the lawsuit. "A number of our clients have been utterly devastated, and they have ongoing needs for support that haven't been met," said the release. "JSS Barristers encourages Mr. Heerema's victims to come forward confidentially to be part of the class action against Mr. Heerema and the Calgary Stampede Foundation." Lawyer Carsten Jensen, Esq. -- jensenc@jssbarristers.ca -- said the firm expects the class action lawsuit certification application will be heard later this year.[GN] CALGARY STAMPEDE: Class Action Expected to Move Forward This Year ----------------------------------------------------------------- Lucas Meyer, writing for 660 News, reports that now that the criminal process has run its course regarding former Young Canadians School of Performing Arts staffer Philip Heerema, lawyers representing families of victims hope the potential class action lawsuit against the Calgary Stampede will move forward this year. On May 2, Philip Heerema was sentenced to 10 years in prison for multiple sex offences against former male students in the school, with crimes ranging between 1992 and 2013 and a judge calling the actions "morally despicable." The school includes students aged 11 to 18 and puts on the Stampede Grandstand Show every summer. While Mr. Heerema was charged in June of 2015, lawyers acting on behalf of several former students filed a statement of claim last April, alleging the Stampede failed to act on knowledge of Mr. Heerema's inappropriate conduct. With the sentence, a lawyer with the firm -- Jensen Shawa Solomon Duguid Hawks LLP -- says it hopes a certification hearing for the suit will happen this year. Kajal Ervin said they are preparing materials and it's possible that with the sentence being handed down, others could join the class action. Stampede CEO Warren Connell reiterated the organization's previous statement that when it first became aware of Mr. Hereema's action, he was removed from the grounds within half an hour. "We continue to maintain that stance and we have nothing contrary to dispel that," he said, adding their internal investigation remains ongoing. "Us supporting the Prosecutor's Office and the Calgary Police Service is obviously finished, but obviously we're waiting to see what comes to light with respect to some of the allegations that were contained in the lawsuit." Nothing has been proven in court. At first, Mr. Heerema pleaded not guilty with his lawyer cross- examining witnesses on their credibility, but he eventually pled guilty mid-trial to eight sex abuse charges, including sexual assault, sexual exploitation, child porn and luring. "We had faith in the criminal justice system and I think justice was served," Mr. Connell said. "I don't think this is about closure for the Stampede." "Our programs are all about continual improvement, you don't reach a plateau and then stop, you continuously try and improve those programs." But a mother of one of the victims wasn't satisfied with Young Canadians leadership. "The Young Canadians family as they like to call themselves, they have done nothing to support him (her son) at all, not a thing," she said after the sentence. "He was still in the Young Canadians when he reported this and as he said in his victim impact statement, he felt like he was involved in a scandal." "The majority of the Young Canadians family stood behind Phil and made him feel like he was, that he was an awful person, that he had the nerve to make these kind of accusations against the great Phil Heerema." Upon hearing the parent's words, Mr. Connell said he could only speak to what his organization has done. "We've been very open and transparent with the parents themselves as well as the students and right from the beginning," he said, adding they've offered counselling services, group and individual meetings. "We have reached out to all of the families with respect to the Young Canadians." [GN] CANADIAN SOLAR: Continues to Defend Ontario Class Action -------------------------------------------------------- Canadian Solar Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the Company continues to defend against a class action lawsuit in Ontario over its allegedly misleading financial disclosures during 2009 and 2010. Six class action lawsuits were filed in the U.S. District Court for the Southern District of New York, or the New York cases, and another class action lawsuit was filed in the U.S. District Court for the Northern District of California, or the California case. The New York cases were consolidated into a single action in December 2010. On January 5, 2011, the California case was dismissed by the plaintiff, who became a member of the lead plaintiff group in the New York action. On March 11, 2011, a Consolidated Complaint was filed with respect to the New York action. The Consolidated Complaint alleges generally that the Company's financial disclosures during 2009 and early 2010 were false or misleading; asserts claims under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder; and names the Company, its chief executive officer and its former chief financial officer as defendants. The Company filed its motion to dismiss in May 2011, which was taken under submission by the Court in July 2011. On March 30, 2012, the Court dismissed the Consolidated Complaint with leave to amend, and the plaintiffs filed an Amended Consolidated Complaint against the same defendants on April 19, 2012. On March 29, 2013, the Court dismissed with prejudice a class action lawsuit filed against the Company and certain named defendants alleging that the Company's financial disclosures during 2009 and early 2010 were false or misleading and in violation of federal securities law. The court found that the plaintiffs failed to adequately allege a securities law violation and granted the Company's motion to dismiss all claims against all defendants with prejudice. On December 20, 2013, the United States Court of Appeals for the Second Circuit affirmed the district court's order dismissing such class action lawsuit. In addition, a similar class action lawsuit was filed against the Company and certain of its executive officers in the Ontario Superior Court of Justice on August 10, 2010. The lawsuit alleges generally that the Company's financial disclosures during 2009 and 2010 were false or misleading and brings claims under the shareholders' relief provisions of the CBCA, Part XX III.1 of the Ontario Securities Act as well as claims based on negligent misrepresentation. In December 2010, the Company filed a motion to dismiss the Ontario action on the basis that the Ontario Court has no jurisdiction over the claims and potential claims advanced by the plaintiff. The court dismissed the Company's motion on August 29, 2011. On March 30, 2012, the Ontario Court of Appeal denied the Company's appeal with regard to its jurisdictional motion. On November 29, 2012, the Supreme Court of Canada denied the Company's application for leave to appeal the order of the Ontario Court of Appeal. The plaintiff's motions for class certification and leave to assert the statutory cause of action under the Ontario Securities Act were served in January 2013 and initially scheduled for argument in the Ontario Superior Court of Justice in June 2013. However, the plaintiff's motions were adjourned in view of the plaintiff's decision to seek an order compelling the Company to file additional evidence on the motions. On July 29, 2013 the Court dismissed the plaintiff's motion to compel evidence. On September 24, 2013 the plaintiff's application for leave to appeal from the July 29 order was dismissed. In September 2014, the plaintiff obtained an order granting him leave to assert the statutory cause of action under the Ontario Securities Act for certain of his misrepresentation claims. In January 2015, the plaintiff in the class action lawsuit filed against the Company and certain of its executive officers in the Ontario Superior Court of Justice obtained an order for class certification in respect of certain claims for which he had obtained leave in September 2014 to assert the statutory cause of action for misrepresentation under the Ontario Securities Act, for certain negligent misrepresentation claims and for oppression remedy claims advanced under the CBCA. The Court dismissed the Company's application for leave to appeal and the class action is at the merits stage. The Company believes the Ontario action is without merit and the Company is defending it vigorously. No further updates were provided in the Company's SEC report. Canadian Solar Inc. is one of the world's largest solar power companies and a leading vertically-integrated provider of solar power products, services and system solutions with operations in North America, South America, Europe, Africa, the Middle East, Australia and Asia. The company is based in Ontario, Canada. CDK GLOBAL: Teterboro Automall Suit Consolidated in MDL ------------------------------------------------------- CDK Global, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the suit filed by Teterboro Automall, Inc. d/b/a Teterboro Chrysler Dodge Jeep Ram, has been transferred to the U.S. District Court for the Northern District of Illinois for consolidated or coordinated for pretrial proceedings as part of a Multi-District Litigation proceeding. Teterboro Automall, Inc. d/b/a Teterboro Chrysler Dodge Jeep Ram ("Teterboro") brought a putative class-action suit against CDK Global, LLC and Reynolds and Reynolds. Teterboro's suit was originally filed in the U.S. District Court for the District of New Jersey on October 19, 2017. Since that time, several more putative class actions have been filed in a variety of Federal District Courts, with substantively similar allegations. As of February 1, 2018, the class action suit and other antitrust lawsuits have been transferred to the U.S. District Court for the Northern District of Illinois for consolidated or coordinated for pretrial proceedings as part of a Multi-District Litigation proceeding ("MDL"). Currently, the parties to the MDL are engaged in preliminary proceedings. Each of these lawsuits seeks, among other things, treble damages and injunctive relief. CDK Global, Inc. provides integrated information technology and digital marketing solutions to the automotive retail and other industries worldwide. The company operates through Retail Solutions North America, Advertising North America, and CDK International segments. CELGENE CORP: Kessler Topaz Announces Class Period Expansion ------------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP announces that it has filed an expanded securities fraud class action complaint against Celgene Corporation (Nasdaq: CELG) ("Celgene" or the "Company") on behalf of investors who purchased the Company's securities between January 12, 2015 and February 27, 2018, inclusive (the "Class Period"). This action, captioned Witchcoff v. Celgene Corp., et al., Case No. 18-08785 was filed in the United States District Court for the District of New Jersey and is related to a previously filed action, City of Warren General Employees' Retirement System v. Celgene Corp., et al., Case No. 18-4772 (D.N.J.) ("City of Warren"). Pursuant to the notice published on March 29, 2018, in connection with the filing of the first-filed City of Warren action, as required by the Private Securities Litigation Reform Act of 1995, investors who purchased Celgene securities during the Class Period may, no later than May 29, 2018, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit: https://www.ktmc.com/new-cases/celgene-corporation- 2018#join Celgene is a global biopharmaceutical company engaged primarily in the discovery, development, and commercialization of therapies for the treatment of cancer and inflammatory diseases. Among the Company's core Inflammation and Immunology products is OTEZLA -- a drug approved for the treatment of plaque psoriasis and psoriatic arthritis. Two of the Company's leading development- stage Inflammation and Immunology products during the Class Period were ozanimod -- a drug being developed for the treatment of relapsing multiple sclerosis, ulcerative colitis, and Crohn's disease -- and GED-0301 -- a drug being developed for the treatment of Crohn's disease. The Class Period begins on January 12, 2015, which coincides with the Company's announcement of its 2015 and long-term financial outlook. Among other things, Celgene announced that it expected 2017 revenues from OTEZLA to be between $1.5 billion and $2.0 billion, and that it expected 2020 revenues from the entire Inflammation and Immunology division to exceed $3.0 billion. On October 19, 2017, Celgene shocked the market by announcing that it was ending all ongoing trials of GED-0301, would no longer be pursuing GED-0301 as a treatment for Crohn's disease, and would be recording a $1.6 billion impairment charge based on this decision. On this news, the price of Celgene common stock fell $14.63 per share, or nearly 11 percent, from a close of $135.96 per share on October 19, 2017, to a close of $121.33 per share on October 20, 2017. On October 26, 2017, the Company shocked the market again by announcing that OTEZLA sales in the third quarter of 2017 were only $308 million -- representing a 12 percent year-over-year increase -- and that it was lowering 2017 OTEZLA net product sales expectations to "[a]pproximately $1.25B." On this news, the price of Celgene common stock fell $19.57 per share, or more than 16 percent, from a close of $119.56 per share on October 25, 2017, to a close of $99.99 per share on October 26, 2017. More recently, on February 27, 2018, the Company stunned investors a third time by announcing that it had received a Refusal to File letter from the FDA regarding its New Drug Application ("NDA") for ozanimod. On this news, the price of Celgene common stock fell $8.66 per share, or more than 9 percent, from a close of $95.78 per share on February 27, 2018, to a close of $87.12 per share on February 28, 2018. The Complaint alleges that, throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically: (i) Defendants failed to disclose known trends that were negatively impacting sales of OTEZLA; (ii) Defendants overstated the prospects of FDA approval for ozanimod to treat relapsing multiple sclerosis; (iii) Defendants overstated GED-0301's commercial prospects as a treatment for Crohn's disease; and (iv) as a result of the foregoing, Defendants' statements about OTEZLA, ozanimod, and GED-0301 were materially false and/or misleading and/or lacked a reasonable basis. Celgene investors who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (888) 299- 7706 or at info@ktmc.com. Celgene investors may, no later than May 29, 2018, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Contact: James Maro, Jr., Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: 888-299-7706 610-667-7706 E-mail: info@ktmc.com jmaro@ktmc.com abell@ktmc.com [GN] CELLULAR SALES: Can't Compel Production of Communications --------------------------------------------------------- The United States District Court for the Northern District of New York denied Defendant's Motion to Compel Production in the case captioned JAN P. HOLICK, JR., STEVEN MOFFITT, JUSTIN MOFFITT, GURWINDER SINGH, JASON MACK, WILLIAM BURRELL, and TIMOTHY M. PRATT, Plaintiffs, on behalf of themselves and all others similarly situated, v. CELLULAR SALES OF NEW YORK, LLC, and CELLULAR SALES OF KNOXVILLE, INC, Defendants, No. 1:12-CV-584 (NAM/DJS)(Lead Case)(N.D.N.Y.). The Defendants have filed a Letter-Motion with the Court to compel, inter alia, production of communications between Plaintiff Jan Holick and several other opt-in or potential opt-in Plaintiffs, as well as Facebook communications with Shane Baringer, William Burrell, and Jason Mack. A few of the documents do relate to communications between Plaintiff Jan Holick and others concerning the existence of the class action lawsuit and their ability to join it, as well as the contact information for the Plaintiff's attorneys, but once again none of these communications are relevant to the disputed facts of this case. As a result of the in camera review, the Court concludes that the requested communications are not proportionally relevant and, in some cases, privileged, and therefore will not compel their production. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/y7bryjq8 from Leagle.com. Jan P. Holick, Jr., on behalf of themselves and all others similarly situated, Steven Moffitt, on behalf of themselves and all others similarly situated, Justin Moffitt, on behalf of themselves and all others similarly situated, Gurwinder Singh, on behalf of themselves and all others similarly situated, Jason Mack, on behalf of themselves and all others similarly situated, Timothy M. Pratt, on behalf of themselves and all others similarly situated & William Burrell, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Daniel A. Jacobs, Gleason, Esq., Ronald G. Dunn, Esq., and Christopher M. Silva, Esq., at Gleason, Dunn Law Firm, in Albany, New York. Cellular Sales of New York, LLC, Defendant, represented by Charles L. Carbo, III -- larry.carbo@chamberlainlaw.com -- Chamberlain, Hrdlicka Law Firm, Joseph M. Dougherty, Hinman, Straub Law Firm, Julie R. Offerman -- julie.offerman@chamberlainlaw.com -- Chamberlain, Hrdlicka Law Firm, pro hac vice, Ryan O. Cantrell -- ryan.cantrell@chamberlainlaw.com -- Chamberlain, Hrdlicka Law Firm, pro hac vice & Benjamin M. Wilkinson, Hinman, Straub Law Firm. Cellular Sales of Knoxville, Inc., Defendant, represented by Charles L. Carbo, III, Chamberlain, Hrdlicka Law Firm, pro hac vice, Joseph M. Dougherty, Hinman, Straub Law Firm, Julie R. Offerman, Chamberlain, Hrdlicka Law Firm, pro hac vice & Ryan O. Cantrell, Chamberlain, Hrdlicka Law Firm, pro hac vice. CHURCHILL DOWNS: Continues to Defend "Kater" Class Action --------------------------------------------------------- Churchill Downs Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit entitled, Cheryl Kater v. Churchill Downs Incorporated. On April 17, 2015, a purported class action styled Cheryl Kater v. Churchill Downs Incorporated (the "Kater litigation") was filed in the United States District Court, for the Western District of Washington alleging, among other claims, that the Company's "Big Fish Casino" operated by the Company's then-wholly owned mobile gaming subsidiary Big Fish Games violated Washington law, including the Washington Consumer Protection Act, by facilitating unlawful gambling through its virtual casino games (namely the slots, blackjack, poker, and roulette games offered through Big Fish Casino), and seeking among other things, return of monies lost, reasonable attorney's fees and injunctive relief. On November 19, 2015, the District Court dismissed the case with prejudice and, on December 7, 2015, Plaintiff's motion for reconsideration was denied. Plaintiff filed a notice of appeal on January 5, 2016 to the United States Court of Appeals for the Ninth Circuit. On January 9, 2018, the Company sold Big Fish Games to the Purchaser pursuant to the Stock Purchase Agreement, dated as of November 29, 2017, by and among the Company, Big Fish and the Purchaser. Pursuant to the terms of the Stock Purchase Agreement, the Company agreed to indemnify the Purchaser for the losses and expenses associated with the Kater litigation for Big Fish Games, which is referred to in the Stock Purchase Agreement as the "Primary Specified Litigation." On February 6, 2018, oral arguments on Plaintiff's appeal of the dismissal of the Kater litigation took place before the United States Court of Appeals for the Ninth Circuit. On March 28, 2018, the United States Court of Appeals for the Ninth Circuit reversed and remanded the District Court's dismissal of the complaint against the Company. Churchill Downs said, "In accordance with the terms of the Stock Purchase Agreement, the Company is working closely with the Purchaser to vigorously defend this matter in both the District Court and in any further appellate proceedings, and the Company believes that there are meritorious legal and factual defenses against Plaintiff's allegations and requests for relief." Update in Soileau Suit Meanwhile, Churchill Downs said in its Form 10-Q Report for the quarterly period ended September 30, 2017, that the district court has entered an amended judgment in the case John L. Soileau, et al. versus Churchill Downs Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker Company, LLC (Suit No. 14-3873), to correct a deficiency. On April 21, 2014, John L. Soileau and other individuals filed a Petition for Declaratory Judgment, Permanent Injunction, and Damages-Class Action styled John L. Soileau, et al. versus Churchill Downs Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker Company, LLC (Suit No. 14-3873) in the Parish of Orleans Civil District Court, State of Louisiana (the "District Court"). The petition defined the "alleged plaintiff class" as quarter-horse owners, trainers and jockeys that have won purses at the "Fair Grounds Race Course & Slots" facility in New Orleans, Louisiana since the first effective date of La. R.S. 27:438 and specifically since 2008. The petition alleged that Churchill Downs Louisiana Horseracing, L.L.C. and Churchill Downs Louisiana Video Poker Company, L.L.C. ("Fair Grounds") have collected certain monies through video draw poker devices that constitute monies earned for purse supplements and all of those supplemental purse monies have been paid to thoroughbred horsemen during Fair Grounds' live thoroughbred horse meets. La. R.S. 27:438 requires a portion of those supplemental purse monies to be paid to quarter-horse horsemen during Fair Grounds' live quarter-horse meets. The petition requested that the District Court declare that Fair Grounds violated La. R.S. 27:438, issue a permanent and mandatory injunction ordering Fair Grounds to pay all future supplements due to the plaintiff class pursuant to La. R.S. 27:438, and to pay the plaintiff class such sums as it finds to reasonably represent the value of the sums due to the plaintiff class. On August 14, 2014, the plaintiffs filed an amendment to their petition naming the Horsemen's Benevolent and Protective Association 1993, Inc. ("HBPA") as an additional defendant and alleging that HBPA is also liable to plaintiffs for the disputed purse funds. On October 9, 2014, HBPA and Fair Grounds filed exceptions to the suit, including an exception of primary jurisdiction seeking referral to the Louisiana Racing Commission. By Judgment dated November 21, 2014, the District Court granted the exception of primary jurisdiction and referred the matter to the Louisiana Racing Commission. On January 26, 2015, the Louisiana Fourth Circuit Court of Appeals denied the plaintiffs' request for supervisory review of the Judgment. On August 24, 2015, the Louisiana Racing Commission ruled that the plaintiffs did not have standing or a right of action to pursue the case. On September 18, 2015, the plaintiffs filed a Petition for Appeal of Administrative Order Dismissing Case for No Right of Action in the District Court seeking a reversal of the Louisiana Racing Commission's ruling. On July 13, 2016, the plaintiffs filed their brief with the District Court and Fair Grounds filed its brief on August 12, 2016. A hearing was held at the District Court on September 15, 2016 and the District Court affirmed the Louisiana Racing Commission's ruling. The plaintiffs filed an appeal with the Louisiana Fourth Circuit Court of Appeals on December 7, 2016. By Order dated August 23, 2017, the Louisiana Fourth Circuit Court of Appeals dismissed the plaintiffs' appeal without prejudice because the District Court's Judgment did not contain the necessary decretal language. To correct this deficiency, the District Court entered an Amended Judgment on September 19, 2017. The plaintiffs have advised they intend to appeal the Amended Judgment. Churchill Downs Incorporated operates as a racing, gaming, and online entertainment company in the United States. It operates through Racing, Casinos, TwinSpires, and Other Investments segments. The company is based in Louisville, Kentucky. CLARK COUNTY, NV: Witness Deposition in Suit vs CCSD Extended ------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order to Continue Expert Witness Depositions and Dispositive Motion and Deadlines in the case captioned JOHN and JANE DOE I, Guardians Ad Litem for JOANN DOE I, a minor, individually and on behalf of all those similarly situated, and JOHN and JANE DOE II, Guardians Ad Litem for JOANN DOE II, a minor, individually and on behalf of all those similarly situated; Plaintiffs, v. JEREMIAH MAZO; CLARK COUNTY SCHOOL DISTRICT; DOES 1 through 20; DOE 1 through 20; ROE CORPORATIONS 1 through 20; Defendants, Case No. 2:16-cv-00239-APG-PAL (D. Nev.). Alleging abuse of students by a former CCSD teacher, Jeremiah Mazo, and bringing claims under Title IX against CCSD and state tort claims against all defendants. The parties request the extension to allow the depositions of the parties' expert and rebuttal expert witness depositions. The parties have diligently engaged in discovery and request an extension to allow for the foregoing outstanding depositions to take place. Namely, the parties have been working together to schedule expert depositions, and are exploring the possibility of bringing many, if not all of them, to Las Vegas, Nevada for their depositions. A full-text copy of the District Court's May 3, 2018 Order is available at https://tinyurl.com/ycu83g2s from Leagle.com. John Doe I, Guardian Ad Litem, Jane Doe I, Guardian Ad Litem, Joann Doe I, a minor, individually and on behalf of all those similarly situated, John Doe II, Guardian Ad Litem, Jane Doe II & Joann Doe II, a minor, individually and on behalf of all those similarly situated, Plaintiffs, represented by Aaron D. Ford, Eglet Prince, Artemus W. Ham, IV, Eglet Prince, Richard Hy & Robert T. Eglet, Eglet Prince, Robert T. Eglet Advocacy Center. Jeremiah Mazo, Defendant, represented by John G. George Clark County School District, Defendant, represented by Kara B. Hendricks -- hendricksk@gtlaw.com -- Greenberg Traurig LLP, Mark E. Ferrario -- ferrariom@gtlaw.com -- Greenberg Traurig, Michelle R. Schwarz, Hall Jaffe & Clayton, LLP, Moorea L. Katz -- katzmer@gtlaw.com -- Greenberg Traurig, LLP, Steven T. Jaffe, Hall Jaffe & Clayton, LLP, & Whitney Welch -- welchkirmsew@gtlaw.com -- Greenberg Traurig. Clark County School District, Cross Claimant, represented by Kara B. Hendricks, Greenberg Traurig LLP, Mark E. Ferrario, Greenberg Traurig, Michelle R. Schwarz, Hall Jaffe & Clayton, LLP, Moorea L. Katz, Greenberg Traurig, LLP & Steven T. Jaffe, Hall Jaffe & Clayton, LLP. Jeremiah Mazo, Cross Defendant, represented by John G. George, John George. COLGATE PALMOLIVE: New York Class Suit Remains Pending ------------------------------------------------------ Colgate Palmolive Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the Company continues to defend a class action lawsuit in New York. In June 2016, a putative class action claiming that residual annuity payments made to certain participants in the Colgate- Palmolive Company Employees' Retirement Income Plan (the "Plan") did not comply with the Employee Retirement Income Security Act was filed against the Plan, the Company and certain individuals in the United States District Court for the Southern District of New York. This action has been certified as a class action. The relief sought includes recalculation of benefits, pre- and post-judgment interest and attorneys' fees. The Company is contesting this action vigorously. Colgate Palmolive said, "Since the amount of any potential loss from this case currently cannot be reasonably estimated, the range of reasonably possible losses in excess of accrued liabilities does not include any amount relating to the case. Colgate-Palmolive Company, together with its subsidiaries, manufactures and sells consumer products worldwide. It operates through two segments, Oral, Personal and Home Care; and Pet Nutrition. The company is based in New York. COLORADO: Homeless Sweep Class Action Attorney Faces Challenges --------------------------------------------------------------- Noelle Phillips, writing for The Denver Post, reports that minutes before a group of homeless people on May 2 walked into Denver's federal courthouse, a woman with a bullhorn asked one more time for those without an ID card to sign a list. Those people would need to enter with Jason Flores-Williams, an attorney representing homeless people in a lawsuit against Denver. He had filed a motion asking a judge to permit those without IDs to come inside a building where guards typically turn away those without it. This time, they would be allowed to enter, but only after Mr. Flores-Williams vouched for their identity as they were questioned by security guards. The lawsuit, which was granted class-action status in April 2017, is moving closer to trial, and the May 2 routine hearing illustrated some of the unique issues the court faces when plaintiffs do not have homes. "It's a challenge," Mr. Flores-Williams said. "They're going to have a hard time maintaining the stability necessary to come to court." Before the hearing, homeless advocates served a hot meal on the sidewalk outside the courthouse. They parked a truck with lockers near the building so people could store their backpacks, blankets and other gear during the hearing. One woman asked if she could lock up her Mace. A man needed to stow his marijuana. Already, Mr. Flores-Williams and his staff have had to walk Denver's streets to find their clients, often meeting them next to garbage bins in alleys to get them to sign papers or notify them of appointments, he said. Still, clients miss crucial appointments such as deposition hearings, which gives Denver's city attorneys an opportunity to bar them from testifying. Flores-Williams said he must file a motion over the IDs every time a hearing is scheduled. Ray Lyall, the lead plaintiff, and nine others are arguing that Denver's sweeps where homeless people are uprooted from parks and sidewalks and where their property is confiscated are violations of their civil rights. He sat at a table in front of the judge on May 2 with his salt-and-pepper hair pulled back in a ponytail and wearing a black T-shirt that read "Be a good person." "You can't walk forever," Mr. Lyall said. "At some point, you have to sleep. We have to survive. I just decided we have to do something about this." The next fight to protect clients' and witnesses' ability to attend hearings will come later this spring when Mr. Flores- Williams files a motion asking a judge to place the city's camping ban in abeyance during the trial so those people aren't arrested or moved far away, preventing them from attending the trial. "They obtain an incredible advantage when they can arrest or sweep out our witness base," he said. [GN] CONCHA Y TORO: Appeal in California Class Suit Still Pending ------------------------------------------------------------ Concha y Toro Winery Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that an appeal in a California class action remains pending. In the United States, on March 24, 2015, twenty-four wine producers, along with the subsidiary Fetzer, were notified of a class action lawsuit filed before the California State Court. This claim is based on the fact that the Producers did not comply with the obligation to notice the specific presence of arsenic in their products under California regulations. In March 2015, the California Court accepted to reject the petition (demurrer without leave) without giving the petitioners the right to continue the trial or change their claim. They appealed to this resolution. The Company assesses a high likelihood of having a final judgment favorable to wine producers. No further updates were provided in the Company's SEC report. Vina Concha Y Toro S.A. produces wines in Chile and Argentina. The Company owns and operates vineyards, vinification plants, bottling plants, and a wine distribution network. Vina Concha produces premium, varietal, and sparkling wines. The Company exports its products worldwide. Vina Concha also grows and markets fruit, and bottles mineral water. CONTROLADORA VUELA: New York Class Action Concluded --------------------------------------------------- Controladora Vuela Compania de Aviacion, S.A.B. de C.V. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the plaintiff in a putative class action suit filed in the United States District Court for the Southern District of New York has not appealed a judge's decision and the time to appeal has expired and any right of the plaintiff to pursue the litigation has ended. The Company and its CEO, CFO, certain of its current directors and certain of its former directors, as well as certain underwriters, were among the defendants in a putative class action commenced on February 24, 2015 in the United States District Court for the Southern District of New York brought on behalf of purchasers of ADSs in and/or traceable to the September 2013 IPO. The complaint, which also named as defendants the underwriters of the IPO, generally alleged that the registration statement and prospectus for the ADSs contained misstatements and omissions with respect to the recognition of non-ticket revenue in violation of the federal securities laws, and sought unspecified damages and rescission. The motion to dismiss requested by the Company and all defendants was granted with prejudice in their favor on July 6, 2016. The plaintiff has not appealed the judge's decision and the time to appeal has expired. Accordingly, any right of the plaintiff to pursue the litigation has ended. Controladora Vuela Compania de Aviacion, S.A.B. de C.V. provides air transportation services for passengers, cargo, and mail in Mexico and internationally. CORELOGIC INC: Settlement in "Henderson" Suit Approved ------------------------------------------------------ CoreLogic, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that parties in Tyrone Henderson, et al., v. CoreLogic National Background Data, have agreed to settle the case on a class-wide basis and the settlement has been approved. In February 2012, CoreLogic National Background Data, LLC (n/k/a CoreLogic Background Data, LLC ("CBD")) was named as a defendant in a putative class action styled Tyrone Henderson, et al., v. CoreLogic National Background Data, in the United States District Court for the Eastern District of Virginia. Plaintiffs allege violation of the Fair Credit Reporting Act, and pled a putative class claim relating to CBD's return of criminal record data in response to search queries initiated by its consumer reporting agency customers, which then prepare and transmit employment background screening reports to their employer customers. The parties have agreed to settle the case on a class-wide basis and the settlement was approved in March 2018. CoreLogic, Inc. is a leading global property information, analytics and data-enabled services provider operating in North America, Western Europe and Asia Pacific. The company's combined data from public, contributory and proprietary sources provides detailed coverage of property, mortgages and other encumbrances, property risk and replacement cost, consumer credit, tenancy, location, hazard risk and related performance information. The company is based in Irvine, California. CORELOGIC INC: Settlement in "Witt" Suit Approved ------------------------------------------------- CoreLogic, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that parties in Witt v. CoreLogic National Background Data, et al., have agreed to settle the case on a class-wide basis and that the settlement has been approved. In June 2015, a companion case, Witt v. CoreLogic National Background Data, et al. was filed in the United States District Court for the Eastern District of Virginia by the same attorneys as in Henderson, alleging the same claim against CBD. Witt also names as a defendant CoreLogic SafeRent, LLC (n/k/a CoreLogic Rental Property Solutions, LLC ("RPS")) on the theory that RPS provided criminal record "reports" to CBD at the same time that CBD delivered reports to CBD's consumer reporting agency customers. The parties have agreed to settle the case on a class-wide basis and the settlement was approved in March 2018. CoreLogic, Inc. is a global property information, analytics and data-enabled services provider operating in North America, Western Europe and Asia Pacific. The company's combined data from public, contributory and proprietary sources provides detailed coverage of property, mortgages and other encumbrances, property risk and replacement cost, consumer credit, tenancy, location, hazard risk and related performance information. The company is based in Irvine, California. CORELOGIC INC: Continues to Defend "Feliciano" Class Suit --------------------------------------------------------- CoreLogic, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that CoreLogic Rental Property Solutions, LLC (RPS) continues to defend a class action suit filed by Claudinne Feliciano in the U.S. District Court for the Southern District of New York. In July 2017, CoreLogic SafeRent, LLC (n/k/a CoreLogic Rental Property Solutions, LLC (RPS) was named as a defendant in a putative class action lawsuit styled Claudinne Feliciano, et al., v. CoreLogic SafeRent, LLC, in the United States District Court for the Southern District of New York. The named plaintiff alleges that RPS prepared a background screening report about her that contained a record of a New York Housing Court action without noting that the action had previously been dismissed. On this basis, she seeks damages under the Fair Credit Reporting Act and the New York Fair Credit Reporting Act on behalf of herself and a class of similarly situated consumers with respect to reports issued during the period of July 2015 to the present. RPS has denied the claims and intends to defend the case vigorously. No further updates were provided in the Company's SEC report. CoreLogic, Inc. is a leading global property information, analytics and data-enabled services provider operating in North America, Western Europe and Asia Pacific. The company's combined data from public, contributory and proprietary sources provides detailed coverage of property, mortgages and other encumbrances, property risk and replacement cost, consumer credit, tenancy, location, hazard risk and related performance information. The company is based in Irvine, California. CORELOGIC INC: Continues to Defend "King" Class Action ------------------------------------------------------ CoreLogic, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that CoreLogic Credco, LLC ("Credco") continues to defend itself in a class action suit filed by Shakeena King in the U.S. District Court for the Eastern District of Virginia. In November 2017, CoreLogic Credco, LLC ("Credco") was named as a defendant in a putative class action lawsuit styled Shakeena King, et al., v. CoreLogic Credco, LLC, in the United States District Court for the Eastern District of Virginia. The named plaintiff alleges that Credco prepared a tri-merge report about her which included information belonging to another person. On this basis, she seeks damages under the Fair Credit Reporting Act on behalf of herself and a class of similarly situated consumers with respect to reports issued during the period of November 2012 to present. CoreLogic said, "Credco has denied the claims and intends to defend the case vigorously." CoreLogic, Inc. is a global property information, analytics and data-enabled services provider operating in North America, Western Europe and Asia Pacific. The company's combined data from public, contributory and proprietary sources provides detailed coverage of property, mortgages and other encumbrances, property risk and replacement cost, consumer credit, tenancy, location, hazard risk and related performance information. The company is based in Irvine, California. CORNING INC: Court Denies Certification in Modern Holdings' Suit ---------------------------------------------------------------- The United States District Court for Eastern District of Kentucky, Central Division, Lexington, denied the Plaintiffs' Motion to Certify Class in the case captioned MODERN HOLDINGS, LLC, et al., Plaintiff, v. CORNING, INC., and PHILIPS ELECTRONICS NORTH AMERICA CORPORATION. Defendants, Civil No. 5:13-cv-00405- GFVT (E.D. Ky.). The Plaintiffs are individuals and corporations who own land allegedly damaged by the Defendants' operations of the facility, and/or who allegedly experience personal injuries flowing from the release of toxic substances by the Defendants. They identify many hazardous substances used in the course of the facility's operations including, but are not limited to, asbestos, mercury, antimony, arsenic, beryllium, cadmium, chromium, lead, tin, zinc oxide and other heavy metals, thallium, perchloroethylene (PCE), 1-Trichloroethane (TCA), methylene chloride, PCB compounds, benzene, toluene, vanadium, benzo(b)fluoranthene, benzo(a)pyrene, ethylbenzene, silica, chlorinated fluorocarbons (CFC), 2-Butanone (MEK), trichloroethylene (TCE), and ethanolamine. The Plaintiffs allege Corning and Philips illegally dumped these hazardous substances in nearby fields, streams, and lands now owned by the named the Plaintiffs and members of the proposed class. The Plaintiffs' Motion proposes that the following class be certified in this case: all persons who at any time between 1952 and November 27, 2013, resided within the Affected Area or who owned off-Site property within the Affected Area as of November 27, 2013. The Court finds that the proposed class failed under Rule 23 because the overbroad class definition did not meet the requirements for numerosity. The Defendants have raised Article III issues with members of the proposed class. Such lack of standing could prohibit a finding of numerosity within the Plaintiffs' proposed class, but the Court has already declined to reach this issue. The Plaintiffs have identified 3,000 distinct parcels of property to be included in the proposed class. The number of individuals living on these properties would presumably establish numerosity if all individuals had standing. However, because the Court finds that the Plaintiffs failed to meet the other requirements under Rule 23, this Court need not reach the constitutional implications of class standing and issues related to numerosity. This Court finds that significant individual issues outnumber common issues, precluding the use of common answers to further the case at trial, and barring certification of the proposed class. Perhaps chiefly problematic is that the named the Plaintiffs have such an enormous variety of issues between them, each of which presents a unique question of both actual and proximate causation. This leads the Court to doubt the typicality of the named the Plaintiffs' claims. This Court also finds one enormous shortcoming in the Plaintiffs' discussion of the commonality inquiry: Plaintiffs' abject failure to mention Wal-Mart v. Dukes in either their initial motion or their reply. This evidence was insufficient to satisfy the commonality requirement of Rule 23(a), because it was overly broad and failed to establish promotional disparities between Wal-Mart stores. While all potential class members allegedly suffer from balance disorders, the named Plaintiffs have also claimed to suffer from various other diseases purportedly caused by contamination from various substances. The Court recognizes that the potential class members need not share identical personal and/or medical histories. But, the distinct nature of these numerous diseases that the Plaintiffs attempt to link to the Defendants' alleged acts of contamination presents too many individualized issues. This Court finds the common suffering of balance disorders does not cure this defect. These varied factors could affect the claims of the named Plaintiffs' claims without addressing the claims of the unnamed class members, a clear indicator the proposed class lacks typicality. In their Fourth Amended Complaint, the named Plaintiffs identified their specific illnesses: Rosetta Ford suffers from diabetes, a bleeding ulcer, gout, chronic bronchitis, and [atrial fibrillation] due to a heart valve problem; Gary Ford has trouble breathing and nerve problems in his extremities; Otis Ford was diagnosed with prostate cancer in 2005 and had surgery in 2006 to remove his prostate; Charles Ford was diagnosed with a brain tumor on his pituitary gland in 2006, and, when the tumor was removed, he lost sight in his right eye; Bobbie Lemons was diagnosed with multiple sclerosis in 2008. Then, the named Plaintiffs went on to complain of at least twenty-six general illnesses, capable of resulting from exposure to at least twenty-five substances allegedly released by Defendants. Interestingly, however, while Rosetta Ford claims several illnesses, she suffers from zero of the diseases listed in the complaint as potentially resulting from exposure to the listed toxic substances. Similarly, Charles Ford was diagnosed with a pituitary tumor, Otis Ford was diagnosed with prostate cancer, and Bobbie Lemons suffers from multiple sclerosis. While they complain of other ailments, only these three are listed by Plaintiffs as diseases caused by the alleged contamination. Collectively, and on the face of their pleadings, the named Plaintiffs suffer from only three out of twenty-six of the listed diseases, or 11.5% of the named ailments. The named Plaintiffs cannot be adequate representatives of the class when they do not suffer from the injuries complained of. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yb49ojo8 from Leagle.com. Modern Holdings, LLC, Bobbie Lemons, Otis Ford, Charles Ford, Rosetta Ford & Gary Ford, Plaintiffs, represented by Jessica Katherine Winters -- jwinters@gettylawgroup.com -- The Getty Law Group, PLLC, Mary Ann Getty, The Getty Law Group, PLLC, Richard A. Getty, The Getty Law Group, PLLC & Matthew English -- menglish@gettylawgroup.com -- The Getty Law Group, PLLC. Sellers and Sellers Company, Plaintiff, represented by Richard A. Getty -- rgetty@gettylawgroup.com -- The Getty Law Group, PLLC & Matthew English, The Getty Law Group, PLLC. Corning Incorporated, also known as, Defendant, represented by Donald J. Kelly -- dkelly@wyattfirm.com -- Wyatt, Tarrant & Combs, LLP, Joseph F. Madonia, Barnes & Thornburg, pro hac vice, Mark L. Durbin -- mdurbin@btlaw.com -- Barnes & Thornburg, Peter N. Moore, Barnes & Thornburg, pro hac vice, George J. Miller -- gmiller@wyattfirm.com -- Wyatt, Tarrant & Combs LLP & Max Bridges. Philips Electronics North America Corporation, a Delaware Corporation, Defendant, represented by Brian M. Johnson -- bjohnson@dickinsonwright.com -- Dickinson Wright PLLC, David Andrew Owen -- DOwen@dickinsonwright.com -- Dickinson Wright PLLC, Emma R. Wolfe -- EWolfe@dickinsonwright.com -- Dickinson Wright PLLC & Matthew A. Stinnett -- MStinnett@dickinsonwright.com -- Dickinson Wright PLLC. CREDIT SUISSE: Obtains Favorable Ruling in Arbitration Bid ---------------------------------------------------------- Ambrogio Visconti, writing for Global Legal Chronicle, reports that a Cahill litigation team prevailed on behalf of Credit Suisse in obtaining an order compelling the plaintiff to arbitrate its claims in a proposed class action challenging the bank's alleged use of "Last Look" in foreign exchange trading. Plaintiff brought breach of contract claims alleging that the bank rejected or delayed certain foreign exchange trades. On April 12, 2018, Judge Schofield of the U.S. District Court for the Southern District of New York ruled that Plaintiff's claims must be arbitrated pursuant to the rules of the National Futures Association. Credit Suisse Group AG is an international financial services group. The Group, led by Tidjane Thiam, David R Mathers and Pierre-Olivier Marie Bouee, provides investment banking, private banking, and asset management services to customers located around the world. Cahill advised Credit Suisse with a team including Jason M. Hall, David G. Januszewski, Herbert S. Washer, Kathleen E. Farley, Miles Wiley, Loryn Davis and Caroline Incledon. [GN] CREDIT UNION: Court Allows Amendment to "Nichols" TCPA Complaint ---------------------------------------------------------------- The United States District Court for the District of Nevada granted Plaintiffs' Motion for Leave to File First Supplemental Complaint in the case captioned CATHERINE NICHOLS, Plaintiff, v. CREDIT UNION 1, et al., Defendants, Case No. 2:17-cv-02337-APG- GWF (D. Nev.). The Plaintiff alleges that the Defendants violated the Fair Credit Reporting Act and requests leave to allege new claims against the Defendants and class allegations against Defendant Experian Information Solutions, Inc. Defendant Experian represents that it does not oppose the Plaintiff's request supplement her complaint. Defendant Credit Union 1 does not oppose the Plaintiff's request, but asserts that it may file a motion to bifurcate the class action causes of action. Upon review, the Court finds that justice requires granting the Plaintiff's request because the leave to amend is sought in good faith, does not cause the opposing party undue delay or undue prejudice, and does not constitute an exercise in futility. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/y96jjwmo from Leagle.com. Catherine Nichols, Plaintiff, represented by Matthew I. Knepper - - matthew.knepper@knepperclark.com -- Knepper & Clark, LLC, Sean N. Payne -- seanpayne@spaynelaw.com -- PAYNE LAW FIRM LLC, Miles N. Clark -- miles.clark@knepperclark.com -- Knepper & Clark LLC & David H. Krieger -- davkrieg@hainesandkrieger.com -- Haines & Krieger, LLC. Credit Union 1, Defendant, represented by Brandi M. Planet -- bplanet@fclaw.com -- Fennemore Craig, P.C., Brenoch R. Wirthlin - - bwirthlin@fclaw.com -- Fennemore Craig Jones Vargas & Leslie Bryan Hart -- lhart@fclaw.com -- Fennemore Craig, P.C. Experian Information Solutions, Inc., Defendant, represented by Andrew J. Sharples -- asharples@naylorandbrasterlaw.com -- Naylor & Braster Attorneys at Law, PLLC & Jennifer L. Braster -- jbraster@naylorandbrasterlaw.com -- Naylor & Braster. CSK AUTO: June 25 Deadline to Respond to Pleading in "Aguilar" -------------------------------------------------------------- The United States District Court for the Northern District of California extended the Deadline to Respond Pleading in the case captioned ADRIAN AGUILAR, individually and on behalf of all others similarly situated, Plaintiffs, v. CSK AUTO, INC., O'REILLY AUTOMOTIVE STORES, INC., and DOES 1-10, inclusive, Defendants, Case No. 3:17-CV-04263-RS (N.D. Cal.). The Parties agreed that, in the interests of judicial efficiency and economy, and to avoid potentially duplicative and unnecessary motion practice and litigation, O'Reilly's deadline to answer or otherwise respond to the complaint should be continued for an additional 45 days to June 25, 2018. A full-text copy of the District Court's May 7, 2018 Order is available at https://tinyurl.com/ybceqj7a from Leagle.com. Adrian Aguilar, individually and on behalf of all others similarly situated, Plaintiff, represented by Carey A. James -- caj@asmlawyers.com -- Aiman-Smith and Marcy, Brent A. Robinson, Aiman-Smith & Marcy, Hallie Von Rock -- hvr@asmlawyers.com -- Aiman-Smith & Marcy, Randall Bruce Aiman-Smith -- ras@asmlawyers.com -- Aiman-Smith & Marcy & Reed W.L. Marcy -- rwlm@asmlawyers.com -- Aiman-Smith & Marcy. CSK Auto, Inc., Defendant, represented by James Michael Peterson -- peterson@higgslaw.com -- Higgs Fletcher and Mack LLP & Edwin Mendelson Boniske -- boniske@higgslaw.com -- Higgs Fletcher and Mack LLP. O'Reilly Automotive Stores, Inc., Defendant, represented by Edwin Mendelson Boniske , Higgs Fletcher and Mack LLP, James Michael Peterson, Higgs Fletcher and Mack LLP & Jason Conroy Ross -- jasross@gmail.com -- Higgs Fletcher Mack LLP. CYAN INC: Recent Supreme Court Ruling Resolves SLUSA Issue ---------------------------------------------------------- Israel David, Esq. -- israel.david@friedfrank.com -- and Samuel P. Groner, Esq. -- samuel.groner@friedfrank.com -- of Fried, Frank, Harris, Shriver & Jacobson, in an article for Law.com, wrote that the U.S. Supreme Court's recent decision in Cyan v. Beaver County Employees Retirement Fund, -- U.S. --, 2018 WL 1384564 (March 20, 2018), resolved the previously-controversial issue of whether the Securities Litigation Uniform Standards Act of 1998 (SLUSA) stripped state courts of their ability to adjudicate class action lawsuits asserting claims only under the Securities Act of 1933 (1933 Act). The court in Cyan held that SLUSA does not prohibit state courts from adjudicating such claims, and that defendants may not remove such cases to federal court. As a result, it is likely that the recent trend of such claims being asserted in state courts will accelerate. What the Supreme Court did not clarify in Cyan, and what is likely to now become an increasingly litigated issue, is the question of precisely which provisions and elements of the Private Securities Litigation Reform Act of 1995 (PSLRA) apply to state court class action lawsuits asserting claims under the 1933 Act. Court decisions and practitioner commentary are unclear on this question, at times taking conflicting views. This article examines several key PSLRA provisions, including the PSLRA's automatic stay of discovery during the pendency of a motion to dismiss, and considers their post-Cyan applicability in the context of state court class action lawsuits asserting 1933 Act claims. From the time of its enactment in 1933 until the enactment of SLUSA in 1998, there was no question that the 1933 Act had authorized concurrent state and federal court jurisdiction for lawsuits brought exclusively under the 1933 Act, and that the 1933 Act prohibited the removal of such actions from state to federal court. See generally Securities Act Sec. 22(a), 15 U.S.C. Sec. 77v(a). This was called into question when, as part of SLUSA, the 1933 Act's jurisdictional provision was modified. SLUSA was enacted in response to an increased number of class actions based on violations of state securities laws, which the class action plaintiffs' bar began to bring in increasing numbers after the 1995 passage of the PSLRA. To combat the prevalence of perceived end-runs around the federal securities laws, SLUSA prohibited the filing of certain securities class actions based on state law. Left uncertain after the passage of SLUSA, however, was the question of whether, in light of SLUSA, plaintiffs are still permitted to bring securities lawsuits in state court that assert only 1933 Act claims, and the related question of whether defendants are permitted to remove any such lawsuits to federal court. The court in Cyan held that SLUSA does not prohibit state courts from adjudicating such claims, and that defendants may not remove such cases to federal court. The question of which provisions of the PSLRA apply in state court class actions asserting claims under the 1933 Act has arisen in the past, particularly with regard to the PSLRA's discovery stay. With the potential post-Cyan acceleration of such lawsuits, this question is bound to arise more frequently. The court in Cyan recognized that some of the PSLRA's provisions are applicable even when a 1933 Act suit is brought in state court. As an example, the court cited the PSLRA's "safe harbor" from liability for certain forward-looking statements made by company officials, which the court explained was a "substantive change" to the 1933 Act and was applicable no matter the forum in which the 1933 Act claim was brought. In contrast, the court pointed to the requirement that a lead plaintiff in any class action brought under the Federal Rules of Civil Procedure file a sworn certification stating, among other things, that he had not purchased the relevant security at the direction of plaintiff's counsel. The court stated that this requirement merely "modified the procedures used in litigating securities actions" and thus "applied only when such a suit was brought in federal court." Beyond those two examples, however, the court did not expressly decide which other PSLRA provisions apply in state court actions asserting 1933 Act claims. A close analysis of the PSLRA demonstrates which of its other provisions, consistent with the court's analysis, should be applicable even in state court actions, and which provisions merely modify the procedures for federal actions brought pursuant to the Federal Rules. The PSLRA's amendments to the 1933 Act are codified in 15 U.S.C. Sec.Sec.77z-1 and 77z-2. Section 77z-2 details the parameters and requirements for the statutory safe harbor for forward- looking statements, while Sec. 77z-1 sets forth the PSLRA's other modifications to the 1933 Act. Section 77z-1 has four subsections. The first subsection of Sec. 77z-1 (Sec. 77z-1(a)) contains an introductory clause stating that "[t]he provisions of this subsection shall apply to each private action arising under this subchapter [namely, the 1933 Act, 15 U.S.C. Secs. 77a et seq.] that is brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure." When the Cyan court stated that the PSLRA modified the procedure for class actions "brought under the Federal Rules of Civil Procedure," this appears to be the provision to which the court was referring. Section 77z-1(a) then goes on to list a series of statutory requirements (Secs. 77z-1(a)(2)-(8)) for class actions brought pursuant to the Federal Rules, the first of which is the sworn certification requirement that the court gave as an example of a procedural requirement. In addition to the sworn certification requirement, Secs. 77z-1(a)(2)-(8) cover the procedures for the appointment of a lead plaintiff, the share of recovery to be awarded to the representative party serving on behalf of the class in the event of a judgment or settlement, restrictions on settlements under seal, restrictions on payment of attorney fees and expenses, disclosure of settlement terms to class members, and procedures for a court to use to determine if there are certain attorney conflicts of interest. Because each of these provisions only applies in actions brought pursuant to the Federal Rules, it stands to reason, applying the court's analysis in Cyan, that these provisions would not apply in state court actions. In contrast, the other three subsections of Sec. 77z-1 (Secs. 77z-1(b)-(d)) do not contain introductory language limiting their application to actions brought pursuant to the Federal Rules. Rather, by their language, each of those subsections applies "[i]n any private action arising under this subchapter," i.e., the 1933 Act. Those subsections govern the PSLRA's stay of discovery during the pendency of any motion to dismiss (and the concomitant requirement that defendants preserve documents during the pendency of the discovery stay), sanctions for abusive litigation, and the defendant's right to written interrogatories to the jury, in the specified circumstances, on the issue of each defendant's state of mind at the time of the alleged violation. Likewise, Sec. 77z-2's statutory safe harbor for forward-looking statements is not limited to actions brought pursuant to the Federal Rules but rather applies "in any private action arising under this subchapter." 15 U.S.C. Sec. 77z-2(c). Because these provisions apply to any actions brought under the 1933 Act and are not limited to actions brought pursuant to the Federal Rules, they should be applicable even in state court actions asserting 1933 Act claims. Indeed, the Cyan court said as much in connection with the statutory safe harbor. It follows that the court's analysis should apply equally to the discovery stay, sanctions, and written interrogatories provisions, as well. The analytical framework telegraphed (but not explicated) by the Cyan court should put to rest prior commentary questioning which parts of the PSLRA are applicable in 1933 Act actions brought in state court. Indeed, even before Cyan was decided, several California state courts zeroed in on this distinction between Sec. 77z-1(a) and Sec. 77z-1(b) and held that, although Sec. 77z- 1(a)'s provisions do not apply in state court, the discovery stay set forth in Sec. 77z-1(b) is applicable no matter the forum in which a 1933 Act claim is brought. For example, in Milano v. Auhll, the court explained that in Sec. 27(a) of the PSLRA (codified as 15 U.S.C. Secs. 77z-1(a)), "reference is extensive to the Federal Rules of Civil Procedure, and the inference is fairly strong that Congress intended these provisions to apply only in the federal courts." 1996 WL 33398997, at *2 (Cal. Super. Ct., Oct. 2, 1996). In contrast, Sec.27(b) of the PSLRA (codified as 15 U.S.C. Sec.Sec.77z-1(b)), "contains the statement that its provisions apply 'in any private action arising under this title', which appears to refer to the 'title' or principal division of the Act of [1933]." In other words, "an intention appears on the part of Congress to apply section 27(a) of the amendments only to class actions in federal court, but to apply section 27(b) to all private actions based on alleged violations of the 1933 Act, regardless of whether they were brought in state or federal court." As such, the Milano court held that, insofar as the discovery stay provisions are contained in Sec.27(b), Congress intended the provisions creating a new right on the part of defendants to a stay of discovery to be applied to all 1933 Act cases in state as well as federal courts. Another California court likewise held that "the automatic stay provision in Section 27(b) of the [1933] Act applies to all cases filed under the [1933] Act, whether in state or federal court." Shores v. Cinergi Pictures Entm't, No. BC149861 (Cal. Super. Ct., Sept. 11, 1996). In the wake of Cyan, several commentators predicted that plaintiffs would be incentivized to bring class action claims pursuant to the 1933 Act in state court as a means to avoid the PSLRA's discovery stay. A close reading of the PSLRA and the court's Cyan decision demonstrates that such claims would be subject to the PSLRA's discovery stay (as well as its safe harbor for forward-looking statements and its provisions concerning sanctions for abusive litigation and the defendant's right to written interrogatories to the jury), regardless of the forum in which they are brought. Anthony Bagnuola, a litigation associate at the firm, provided research assistance in the preparation of this article. [GN] DEL MONTE: Court Approves $904,872 Settlement in "Bruce" -------------------------------------------------------- The United States District Court for the Northern District of California granted final approval of Class Action Settlement in the case captioned ANNETTE BRUCE, Plaintiff, v. DEL MONTE FOODS, INC, Defendant, Case No. 16-cv-05891-JD (N.D. Cal.). The settlement requires Del Monte to make a single payment of $904,872. This sum is treated exclusively as a civil penalty under the Private Attorneys General Act of 2004. From the settlement, the plaintiff requests attorney's fees in the amount of $225,000, reimbursement of $12,000 of actual litigation costs, and a $1,000 enhancement payment to Annette Bruce. Atticus Administration will be paid no more than $10,000 to distribute the remainder of the settlement funds. No objections to the settlement have been presented to the Court. The parties have advised the Court that the California Labor and Workforce Development Agency (LWDA) does not oppose the settlement terms. In that regard, the Court finds that Del Monte has agreed to pay a significant monetary penalty for PAGA claims that were subject to considerable uncertainty on both sides of this case. The settlement amount of $904,872 exceeds the amount the plaintiffs estimated would be recovered even with a successful litigation outcome. The parties reasonably vetted the claims and defenses through written discovery, motion practice, third-party subpoena practice, and informal exchanges of information. They settled after presenting an overview of the evidence and their legal arguments at a mediation before a qualified mediator. Consequently, the Court finds that the settlement is fair and reasonable, and promotes the purposes of PAGA. Final approval is granted. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/yc2vsnx3 from Leagle.com. Annette Bruce, Plaintiff, represented by Sebastian Lamar Miller - - sebastian@sebastianmillerlaw.com -- Sebastian Miller Law, P.C. Del Monte Foods, Inc, Defendant, represented by David Duane Jacobson -- djacobson@seyfarth.com -- Seyfarth Shaw LLP; Kerry McCoy Friedrichs -- kfriedrichs@seyfarth.com -- Seyfarth Shaw LLP, Laura J. Maechtlen -- lmaechtlen@seyfarth.com -- Seyfarth Shaw LLP & Megha Jonnalagadda Charalambides -- Mcharalambides@Seyfarth.com -- Seyfarth Shaw LLP. DEUTSCHE BANK: Certification of Certificate Holders Class Denied ---------------------------------------------------------------- The United States District Court for Southern District of New York denied Plaintiffs' Renewed Motion for Class Certification in the case captioned Royal Park Investments SA/NV, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Deutsche Bank National Trust Company, as Trustee, Defendant, No. 14-CV-4394 (AJN) (S.D.N.Y.). The action against Defendant Deutsche Bank National Trust Company asserts claims for breach of contract and breach of trust in connection with Deutsche Bank's service as trustee of ten residential mortgage-backed securities (RMBS) trusts of which Royal Park and the putative class members are or were beneficiaries (Trusts). The ten subject Trusts, formed between 2006 and 2007, issued bond-like instruments referred to as RMBS certificates in which Royal Park and other investors acquired beneficial interests. In its initial motion for class certification, Royal Park sought to certify the following class to prosecute its claims: All persons and entities who held Certificates in the Trusts and were damaged thereby. Excluded from the class are defendant, the loan originators, the Warrantors, the Master Servicers and the Servicers to the Trusts, and their officers and directors, their legal representatives, successors, or assigns, and any entity in which they have or had a controlling interest. With respect to numerosity, according to the expert report of W. Scott Dalrymple, Royal Park's damages expert, there are a minimum of 580 investors in the Trusts. The Plaintiff's proposed class meets the numerosity requirement. With respect to commonality, the Plaintiff alleges that Deutsche Bank breached identical or nearly identical contractual terms to which all class members were beneficiaries, giving rise to contractual and common law claims. Consequently, common questions such as (1) did Deutsche Bank discover loans in breach of R&W?; (2) did Deutsche Bank know about the Events of Default?; (3) did Deutsche Bank violate its contractual duties by failing to enforce R&W rights or by failing to declare Events of Default?; and (4) were class members damaged by the Defendant's conduct and, if so, to what extent? are all central to establishing liability and damages for each class member. Deutsche Bank focuses its opposition on arguing that individual questions predominate over common ones and does not explicitly argue that Royal Park has failed to establish commonality under Rule 23(a). Regardless, even if the Defendant had made that argument, the Court agrees that Royal Park has established common questions capable of yielding common answers for both breach of contract and breach of duty claims, and has met the requirement. With respect to typicality and adequacy of representation, first, Deutsche Bank retorts that Royal Park, in asserting that it obtained litigation rights by operation of New York's General Obligation Law Section 13-107, is at conflict with those putative class members who are former owners who relinquished their claims by operation of the same provision. Next, Deutsche Bank suggests Royal Park's position may be antagonistic to other class members. The Defendant claims that when Royal Park gave up its rights to seek further documents from Fortis (BNPFF) the bank from which it was assigned its own rights asserted here when it settled an action in Belgium, this self-inflicted inability to participate in discovery renders it an inadequate class representative. As a result, Deutsche Bank continues, Royal Park's discovery failures may subject it to unique defenses not relevant for other class members. Regardless, Deutsche Bank's vague discussion of unique defenses is insufficient to destroy typicality or adequacy here. There is no evidence to support that the unique defense would threaten to become the focus of the litigation and the Defendant's one citation in support of its claim that Royal Park's discovery failures render it inadequate is inapposite. In McDaniel v. Cty. of Schenectady, upon which the Defendant relies, the putative class representative refused court orders to participate in a deposition three times and counsel could not locate her. By contrast, Royal Park, which was formed as a special purpose vehicle specifically to take over certain distressed assets like the RMBS at issue here, has been a zealous and active participant in this litigation. Royal Park has met both the typicality and adequacy requirements of Rule 23(a), and were this Court to certify the class, it would appoint Royal Park as Class Representative and Robbins Geller as Class Counsel. Despite Plaintiff's ability to meet the requirements of Rule 23(a), the Court will not certify a class under Rule 23(b)(3) because of its failure to establish that common issues predominate over individualized issues. The Plaintiff contends that common proof or evidence could answer these questions and establish the elements of the claim on a class-wide basis. For its breach of trust claim, Royal Park alleges that a single group of individuals at Deutsche Bank was responsible for developing relationships with deal parties to each Trust and so Plaintiff would rely on common proof that Deutsche Bank's ongoing relationships with the Master Servicers, Servicers and/or Warrantor prevented it from taking the actions against such entities necessary to fulfill its obligations under the Governing Agreements. The Plaintiff suggests that liability can be established through common proof with respect to Deutsche Bank's discovery of R&W violations, through loan sampling and re-underwriting the prove that loans breached the R&Ws, through common evidence of the Trusts' massive economic losses, widely disseminated investigative reports of origination and servicing failures and predatory schemes at issue. Finally, the Plaintiff purports to offer a common methodology that can establish class-wide damages through Dalrymple. Nonetheless, despite the many common questions and some potential common proof, class certification is not warranted because of the numerous individualized inquiries the Court and parties would have to conduct. Ultimately, these individualized issues some of which were identified in this Court's previous analysis of ascertainability, and some of which are presaged above predominate over the common ones. First, the nature of the Trusts creates obstacles to the identification of who exactly has standing in this litigation, obstacles that would require numerous individualized determinations. Second, resolving Deutsche Bank's potential statute of limitations defense would require individualized determinations of which statute of limitations applied to each plaintiff's cause of action. Third, Royal Park's failure to establish that damages may be determined on a class-wide basis militates against certification. Given the Plaintiff's failure to establish predominance, by operation of subsection (D), its failure to establish superiority largely follows. While there is nearly always some efficiency that would stem from consolidating the litigation of the common questions presented here, the prospect of applying a choice of law analysis that may well yield the further application of various state laws to the same liability issue does not promote judicial economy nor make the case more manageable. A full-text copy of the District Court's March 29, 2018 Opinion and Order is available at https://tinyurl.com/y7lo9m6a from Leagle.com. Royal Park Investments SA/NV, Individually and on behalf of all others similarly situated, Plaintiff, represented by Arthur C. Leahy -- artl@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Samuel Howard Rudman -- srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Steven W. Pepich -- stevep@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Christopher M. Wood -- cwood@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Darryl J. Alvarado -- dalvarado@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jeffrey James Stein -- jstein@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Joseph Marco Janoski Gray -- mjanoski@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Juan Carlos Sanchez -- jsanchez@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Kevin S. Sciarani -- ksciarami@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Deutsche Bank National Trust Company, as trustee, Defendant, represented by Bernard J. Garbutt, III -- bernard.garbutt@morganlewis.com -- Morgan, Lewis and Bockius LLP, Michael Stephan Kraut -- michael.kraut@morganlewis.com -- Morgan, Lewis and Bockius LLP, Ashley Anelcha Krupski -- ashley.krupski@morganlewis.com -- Morgan, Lewis & Bockius LLP, Bryan P. Goff -- bryan.goff@morganlewis.com -- Morgan Lewis & Bockius, LLP, Christopher James Stanley -- cstanley@jha.com -- Joseph Hage Aaronson LLC, Cristina Ashba -- cristina.ashba@morganlewis.com -- Morgan Lewis & Bockius LLP, Elizabeth Allen Frohlich -- elizabeth.frohlich@morganlewis.com -- Morgan, Lewis & Bockius LLP, Gila Sara Singer, Joseph Hage Aaronson LLC, Grant R. MacQueen -- grant.macqueen@morganlewis.com -- Morgan Lewis & Bockius, LLP, Gregory P. Joseph, Joseph Hage Aaronson LLC, John Michael Vassos -- john.vassos@morganlewis.com -- Morgan, Lewis and Bockius LLP, Jonathan Herman Levy -- jonathan.levy@morganlewis.com -- Morgan Lewis & Bockius, LLP. DIRECTV LLC: Court Extends Time to Respond in "Valdez" ------------------------------------------------------ The United States District Court for the Southern District of California granted Parties' Joint Motion for Extension of Time for Defendants to Respond to Plaintiff's Class Action Complaint in the case captioned ANTHONY VALDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. DIRECTV, LLC; CABLE VISION CCTV, INC.; and DOES 1-10, Class Action inclusive, Defendants, Case No. 3:18-cv-00663-JM-JMA (S.D. Cal.). A full-text copy of the District Court's April 30, 2018 Order is available at https://tinyurl.com/y7dzjpkt from Leagle.com. Anthony Valdez, individually and on behalf of all others similarly situated, Plaintiff, represented by Todd M. Friedman -- tfriedman@attorneysforconsumers.com -- Law Offices of Todd M. Friedman, P.C. Directv, LLC., Defendant, represented by Nancy L. Stagg -- nstagg@kilpatricktownsend.com -- Kilpatrick Townsend & Stockton LLP. DYNAMEX OPERATIONS: Cal. High Ct. Uses ABC Test in Drivers' Suit ---------------------------------------------------------------- Under both California and federal law, the question whether an individual worker should properly be classified as an employee or, instead, as an independent contractor has considerable significance for workers, businesses, and the public generally. On the one hand, if a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's compensation insurance, and, most relevant for the present case, complying with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker then obtains the protection of the applicable labor laws and regulations. On the other hand, if a worker should properly be classified as an independent contractor, the business does not bear any of those costs or responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required under applicable laws to assume additional financial burdens with respect to such workers and their families. Although in some circumstances classification as an independent contractor may be advantageous to workers as well as to businesses, the risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair competitive advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees. In recent years, the relevant regulatory agencies of both the federal and state governments have declared that the misclassification of workers as independent contractors rather than employees is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled. The issue in the appeals case captioned DYNAMEX OPERATIONS WEST, INC. v. SUPERIOR COURT OF LOS ANGELES COUNTY, No. S222732 (Cal.), relates to the resolution of the employee or independent contractor question in one specific context. Here, the Supreme Court of California must decide what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees. In the lawsuit, two individual delivery drivers, suing on their own behalf and on behalf of a class of allegedly similarly situated drivers, filed a complaint against Dynamex Operations West, Inc., a nationwide package and document delivery company, alleging that Dynamex had misclassified its delivery drivers as independent contractors rather than employees. The drivers claimed that Dynamex's alleged misclassification of its drivers as independent contractors led to Dynamex's violation of the provisions of Industrial Welfare Commission wage order No. 9, the applicable state wage order governing the transportation industry, as well as various sections of the Labor Code, and, as a result, that Dynamex had engaged in unfair and unlawful business practices under Business and Professions Code section 17200. Prior to 2004, Dynamex classified as employees drivers who allegedly performed similar pickup and delivery work as the current drivers perform. In 2004, however, Dynamex adopted a new policy and contractual arrangement under which all drivers are considered independent contractors rather than employees. Dynamex maintains that, in light of the current contractual arrangement, the drivers are properly classified as independent contractors. After an earlier round of litigation in which the trial court's initial order denying class certification was reversed by the Court of Appeal (Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325), the trial court ultimately certified a class action embodying a class of Dynamex drivers who, during a pay period, did not themselves employ other drivers and did not do delivery work for other delivery businesses or for the drivers' own personal customers. In finding that the relevant common legal and factual issues relating to the proper classification of the drivers as employees or as independent contractors predominated over potential individual issues, the trial court's certification order relied upon the three alternative definitions of "employ" and "employer" set forth in the applicable wage order as discussed in the state Supreme Court's decided opinion in Martinez v. Combs (2010) 49 Cal.4th 35, 64 (Martinez). Martinez held that "[t]o employ . . . under the [wage order], has three alternative definitions. It means: (a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship." (49 Cal.4th at p. 64.) The trial court rejected Dynamex's contention that in the wage order context, as in most other contexts, the multifactor standard set forth in this court's seminal decision in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello) is the only appropriate standard under California law for distinguishing employees and independent contractors. In response to the trial court's denial of Dynamex's subsequent motion to decertify the class, Dynamex filed the current writ proceeding in the Court of Appeal, maintaining that two of the alternative wage order definitions of "employ" relied upon by the trial court do not apply to the employee or independent contractor issue. Dynamex contended, instead, that those wage order definitions are relevant only to the distinct joint employer question that was directly presented in this court's decision in Martinez -- namely whether, when a worker is an admitted employee of a primary employer, another business or entity that has some relationship with the primary employer should properly be considered a joint employer of the worker and therefore also responsible, along with the primary employer, for the obligations imposed by the wage order. The Court of Appeal rejected Dynamex's contention, concluding that neither the provisions of the wage order itself nor this court's decision in Martinez supported the argument that the wage order's definitions of "employ" and "employer" are limited to the joint employer context and are not applicable in determining whether a worker is a covered employee, rather than an excluded independent contractor, for purposes of the obligations imposed by the wage order. The Court of Appeal concluded that the wage order definitions discussed in Martinez are applicable to the employee or independent contractor question with respect to obligations arising out of the wage order. The Court of Appeal upheld the trial court's class certification order with respect to all of plaintiffs' claims that are based on alleged violations of the wage order. At the same time, the Court of Appeal concluded that insofar as the causes of action in the complaint seek reimbursement for business expenses such as fuel and tolls that are not governed by the wage order and are obtainable only under section 2802 of the Labor Code, the Borello standard is the applicable standard for determining whether a worker is properly considered an employee or an independent contractor. With respect to plaintiffs' non- wage-order claim under section 2802, the Court of Appeal remanded the matter to the trial court to reconsider its class certification of that claim pursuant to a proper application of the Borello standard as further explicated in this court's decision in Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522 (Ayala). Dynamex filed a petition for review in the state Supreme Court, challenging only the Court of Appeal's conclusion that the wage order definitions of "employ" and "employer" discussed in Martinez are applicable to the question whether a worker is properly considered an employee or an independent contractor for purposes of the obligations imposed by an applicable wage order. The state Supreme Court granted review to consider that issue. The state Supreme Court agreed with the Court of Appeal that the trial court did not err in concluding that the "suffer or permit to work" definition of "employ" contained in the wage order may be relied upon in evaluating whether a worker is an employee or, instead, an independent contractor for purposes of the obligations imposed by the wage order. In light of its history and purpose, the state Supreme Court concluded that the wage order's suffer or permit to work definition must be interpreted broadly to treat as "employees," and thereby provide the wage order's protection to, all workers who would ordinarily be viewed as working in the hiring business. At the same time, the state Supreme Court concluded that the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business. For these reasons, the state Supreme Court concluded that in determining whether, under the suffer or permit to work definition, a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to a standard, commonly referred to as the "ABC" test, that is utilized in other jurisdictions in a variety of contexts to distinguish employees from independent contractors. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Although, it appears from the class certification order that the trial court may have interpreted the wage order's suffer or permit to work standard too literally, the state Supreme Court concluded that on the facts disclosed by the record, the trial court's certification order is nonetheless correct as a matter of law under a proper understanding of the suffer or permit to work standard and should be upheld. Accordingly, the state Supreme Court concluded that the judgment of the Court of Appeal should be affirmed. A full-text copy of the state Supreme Court's April 30, 2018 Opinion is available at https://tinyurl.com/y73s9l5q from Leagle.com. Littler Mendelson, Robert G. Hulteng -- rhulteng@littler.com -- Damon M. Ott -- dott@littler.com -- Philip A. Simpkins -- ps@snlegal.com -- Sheppard Mullin Richter & Hampton, Paul S. Cowie -- pcowie@sheppardmullin.com -- DLA Piper and Ellen M. Bronchetti -- ellen.bronchetti@dlapiper.com -- for Petitioner. Pope, Berger & Williams, Pope, Berger, Williams Reynolds, A. Mark Pope, Glancy Binkow & Goldberg, Glancy Prongay & Murray, Kevin F. Ruf -- kruf@glancylaw.com -- Boudreau Williams, Williams Iagmin and Jon R. Williams -- williams@williamsiagmin.com -- for Real Parties in Interest. Della Barnett, R. Erandi Zamora -- ezamora@crlaf.org -- Anthony Mischel -- mischellaw@gmail.com -- Cynthia L. Rice -- crice@crla.org -- William G. Hoerger and Jean H. Choi for California Rural Legal Assistance Foundation, National Employment Law Project, Los Angeles Alliance for a New Economy, La Raza Centro Legal, Legal Aid Society-Employment Law Center, Asian Americans Advancing Justice-LA, Asian Americans Advancing Justice-ALC, The Impact Fund, Alexander Community Law Center, UCLA Center for Labor Research, Women's Employment Rights Clinic and Worksafe as Amici Curiae on behalf of Real Parties in Interest. DYNAMEX OPERATIONS: Ruling Hailed as Game Changer for Gig Economy ----------------------------------------------------------------- Elizabeth C. Tippett, writing for The Conversation, reports that a recent California Supreme Court ruling is being hailed as a "game changer" for the gig economy. That's because the court adopted a more streamlined test for deciding whether a worker is an independent contractor or an employee. Gig economy companies, like Uber and Lyft, overwhelmingly classify their workers as independent contractors. As a result, they don't comply with basic employment laws, like minimum wage and workers' compensation insurance. If courts decide these workers are misclassified and actually meet the legal test for employee status, gig companies can be on the hook for back pay or unpaid insurance premiums, as well as penalties for past noncompliance. So does this mark a turning point for the gig economy? Maybe not. A new test for gig workers In the decision, Dynamex Operations West Inc. v. Superior Court, the justices adopted a much simpler test than California has applied in the past. The new test asks three questions: Is the worker free from the company's control? Is the worker performing a core business function of the company? And does the worker have his or her own independent business? This test strikes at the heart of the gig economy, a system built on providing workers on demand for all sorts of tasks, whether it be picking you up, assembling furniture or delivering a new toaster or a burrito. The services that gig workers perform are core to the company's business, making it much harder for the companies to defend their decision under this streamlined test. But plaintiff's lawyers shouldn't sharpen their pencils just yet. That's because gig economy companies have what amounts a "get out of jail" free card -- arbitration agreements containing class action waivers. 'Get out of jail' free Put simply, companies can force workers to sign agreements that they will only pursue their legal rights through arbitration -- and not in courts. These agreements can also waive a worker's right to bring any class or collective claims against the company. A lot of legal claims are not economically viable unless they are brought as class actions. The amount of money at stake is not enough to make it worth a lawyer's time, unless you group everyone's claims together. This is especially true of lawsuits involving wage and hour violations -- like failure to pay minimum wage or overtime. A study I completed with law student Bridget Schaaff found that these waivers are very common in the gig economy. For 2016, around 70 percent of the contracts we reviewed contained arbitration agreements with class action waivers. This likely underestimates the proportion of workers subject to these waivers, because it was the larger, most established gig companies that tended to use them. Gig companies are unlikely to change their practices without the threat of class actions. Although state agencies can help by stepping up enforcement, it's ultimately up to Congress to take away the "get out of jail" free card. And that would mean amending the Federal Arbitration Act. [GN] EL PASO, CO: Judge Grants Class Action Status in Immigration Case ----------------------------------------------------------------- Nia Bender, writing for Koaa.com, reports that a judge has granted class action status to a lawsuit accusing the El Paso County sheriff's department of improperly holding people for possible deportation by federal authorities. District Court Judge Eric Bentley issued the decision on May 1, expanding the lawsuit to any current and future El Paso County Jail inmates who federal authorities ask the sheriff's department to detain. The Colorado American Civil Liberties Union filed a lawsuit in February on behalf of two men being held in the jail, arguing that state law required their release. The sheriff's office argued that it is housing immigrants on federal agents' behalf. The ACLU says the suit is the first known challenge to an attempt by federal immigration authorities to work around court rulings that limit how they work with local sheriffs. [GN] ELETROBRAS: To Pay US$ 14.75-Bil. to Settle US Class Action ----------------------------------------------------------- Business Insider reports that Brazilian state-owned power company Eletrobras signed a memorandum of understanding agreeing to pay US$ 14.75 billion to settle a class action with holders of its ADRs in the United States. The deal still has to be reviewed by local authorities and, according to the company, eliminates the risk of higher costs stemming from the lawsuit. If the US Justice system approves the Eletrobras deal, Eletrobras ADR's holders will be notified of their rights -- which include the right to do not accept the deal. The class action settlement is similar to that of Petrobras, the Brazilian state-owned oil company which also faced a class action in the US after a corruption probe showed that the company overpaid contractors. Eletrobras said in a statement that the proposed deal does not mean that the company acknowledges responsibility for whatever charge presented against it.[GN] EPIC SYSTEMS: Employment Lawsuit Awaits Supreme Court Ruling ------------------------------------------------------------ Miriam Rozen, writing for Law.com, reports that the U.S. Supreme Court is poised to issue a ruling soon that could reshape the influence of class action plaintiffs on the workplace -- not to mention the workloads of employment lawyers nationwide. As the clock ticks on the current Supreme Court term, labor and employment lawyers from both the plaintiffs and defense bars are watching closely for a ruling in Epic Systems v. Lewis. [GN] EQUIFAX INC: Continues to Defend Cybersecurity-Related Suits ------------------------------------------------------------ Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend itself in several class action suits related to the 2017 cybersecurity incident. Following the 2017 cybersecurity incident, hundreds of class actions were filed by consumers against the company in federal, state and Canadian courts relating to the 2017 cybersecurity incident. The plaintiffs in these cases, who purport to represent various classes of consumers and small businesses, generally claim to have been harmed by alleged actions and/or omissions by Equifax in connection with the 2017 cybersecurity incident and assert a variety of common law and statutory claims seeking monetary damages, injunctive relief and other related relief. In addition, certain class actions have been filed by financial institutions that allege their businesses have been placed at risk due to the 2017 cybersecurity incident and generally assert various common law claims such as claims for negligence and breach of contract, as well as, in some cases, statutory claims. The financial institution class actions seek compensatory damages and other related relief. Furthermore, a lawsuit has been filed by the City of Chicago with respect to the 2017 cybersecurity incident alleging violations of state laws and local ordinances governing protection of personal data, consumer fraud and breach notice requirements and business practices. Beginning on December 6, 2017 and pursuant to multiple subsequent orders, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation and transfer for pre-trial proceedings with respect to the U.S. cases pending in federal court discussed, including the City of Chicago action, to the Northern District of Georgia as the single U.S. District Court for centralized proceedings. Based on this order, consolidated proceedings with respect to U.S. consumer and financial institution federal class actions related to the 2017 cybersecurity incident have begun in the U.S. District Court for the Northern District of Georgia. Discovery has not yet begun and the cases are in a preliminary phase. In addition to these federal court proceedings, several putative class actions arising from the 2017 cybersecurity incident have been filed in the Fulton County Superior Court in Georgia. These cases have been transferred to a single judge in the Fulton County Business Court and three of the cases were consolidated into a single action. The company had also appeared or notified the appropriate parties of representation in the Canadian class actions, but such actions are all at the preliminary stages. In addition, civil enforcement actions have been filed by the Attorneys General of Massachusetts and West Virginia, both of which are in the pre-trial stages, and a lawsuit has been filed by the City of San Francisco, which has been stayed by the court. Equifax said, "We dispute the allegations in the complaints described above and intend to defend against such claims." Equifax Inc. is a leading global provider of information solutions, employment and income verifications and human resources business process outsourcing services. The company is based in Atlanta, Georgia. * * * Equifax Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a consolidated putative class action lawsuit alleging violations of the federal securities laws in connection with statements regarding the company's cybersecurity systems and controls is pending against the company and certain of its current and former officers and directors in the U.S. District Court for the Northern District of Georgia. The complaints seek certification of a class of all persons who purchased or otherwise acquired Equifax securities from February 25, 2016 through September 15, 2017 and unspecified monetary damages, costs and attorneys' fees. Equifax said, "We dispute the allegations in these complaints and intend to defend against the claims." Equifax Inc. is a leading global provider of information solutions, employment and income verifications and human resources business process outsourcing services. The company is based in Atlanta, Georgia. ERIE INDEMNITY: Case Dismissal Under Appeal in 3rd Circuit ---------------------------------------------------------- Erie Indemnity Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that plaintiffs filed a notice of appeal to the United States Court of Appeals for the Third Circuit on the district court's ruling on the motions to dismiss the Beltz II lawsuit. On February 6, 2013, a lawsuit was filed in the United States District Court for the Western District of Pennsylvania, captioned Erie Insurance Exchange, an unincorporated association, by members Patricia R. Beltz, Joseph S. Sullivan and Anita Sullivan, and Patricia R. Beltz, on behalf of herself and others similarly situate v. Richard L. Stover; J. Ralph Borneman, Jr.; Terrence W. Cavanaugh; Jonathan Hirt Hagen; Susan Hirt Hagen; Thomas B. Hagen; C. Scott Hartz; Claude C. Lilly, III; Lucian L. Morrison; Thomas W. Palmer; Martin P. Sheffield; Elizabeth H. Vorsheck; and Robert C. Wilburn (the "Beltz" lawsuit), by alleged policyholders of Exchange who are also the plaintiffs in the Sullivan lawsuit. The individuals named as defendants in the Beltz lawsuit were the then-current Directors of Indemnity. As subsequently amended, the Beltz lawsuit asserts many of the same allegations and claims for monetary relief as in the Sullivan lawsuit. Plaintiffs purport to sue on behalf of all policyholders of Exchange, or, alternatively, on behalf of Exchange itself. Indemnity filed a motion to intervene as a Party Defendant in the Beltz lawsuit in July 2013, and the Directors filed a motion to dismiss the lawsuit in August 2013. On February 10, 2014, the court entered an order granting Indemnity's motion to intervene and permitting Indemnity to join the Directors' motion to dismiss; granting in part the Directors' motion to dismiss; referring the matter to the Department to decide any and all issues within its jurisdiction; denying all other relief sought in the Directors' motion as moot; and dismissing the case without prejudice. To avoid duplicative proceedings and expedite the Department's review, the Parties stipulated that only the Sullivan action would proceed before the Department and any final and non- appealable determinations made by the Department in the Sullivan action will be applied to the Beltz action. On March 7, 2014, Plaintiffs filed a notice of appeal to the United States Court of Appeals for the Third Circuit. Indemnity filed a motion to dismiss the appeal on March 26, 2014. On November 17, 2014, the Third Circuit deferred ruling on Indemnity's motion to dismiss the appeal and instructed the parties to address that motion, as well as the merits of Plaintiffs' appeal, in the parties' briefing. Briefing was completed on April 2, 2015. In light of the Department's April 29, 2015 decision in Sullivan, the Parties then jointly requested that the Beltz appeal be voluntarily dismissed as moot on June 5, 2015. The Third Circuit did not rule on the Parties' request for dismissal and instead held oral argument as scheduled on June 8, 2015. On July 16, 2015, the Third Circuit issued an opinion and judgment dismissing the appeal. The Third Circuit found that it lacked appellate jurisdiction over the appeal, because the District Court's February 10, 2014 order referring the matter to the Department was not a final, appealable order. On July 8, 2016, the Beltz plaintiffs filed a new action labeled as a "Verified Derivative And Class Action Complaint" in the United States District Court for the Western District of Pennsylvania. The action is captioned Patricia R. Beltz, Joseph S. Sullivan, and Anita Sullivan, individually and on behalf of all others similarly situated, and derivatively on behalf of Nominal Defendant Erie Insurance Exchange v. Erie Indemnity Company; Kaj Ahlmann; John T. Baily; Samuel P. Black, III; J. Ralph Borneman, Jr.; Terrence W. Cavanaugh; Wilson C. Cooney; LuAnn Datesh; Patricia A. Goldman; Jonathan Hirt Hagen; Thomas B. Hagen; C. Scott Hartz; Samuel P. Katz; Gwendolyn King; Claude C. Lilly, III; Martin J. Lippert; George R. Lucore; Jeffrey A. Ludrof; Edmund J. Mehl; Henry N. Nassau; Thomas W. Palmer; Martin P. Sheffield; Seth E. Schofield; Richard L. Stover; Jan R. Van Gorder; Elizabeth A. Hirt Vorsheck; Harry H. Weil; and Robert C. Wilburn (the "Beltz II" lawsuit). The individual defendants are all present or former Directors of Indemnity (the "Directors"). The allegations of the Beltz II lawsuit arise from the same fundamental, underlying claims as the Sullivan and prior Beltz litigation, i.e., that Indemnity improperly retained Service Charges and Added Service Charges. The Beltz II lawsuit alleges that the retention of the Service Charges and Added Service Charges was improper because, for among other reasons, that retention constituted a breach of the Subscriber's Agreement and an Implied Covenant of Good Faith and Fair Dealing by Indemnity, breaches of fiduciary duty by Indemnity and the other defendants, conversion by Indemnity, and unjust enrichment by defendants Jonathan Hirt Hagen, Thomas B. Hagen, and Elizabeth A. Hirt Vorsheck, at the expense of Exchange. The Beltz II lawsuit requests, among other things, that a judgment be entered against the Defendants certifying the action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; declaring Plaintiffs as representatives of the Class and Plaintiffs' counsel as counsel for the Class; declaring the conduct alleged as unlawful, including, but not limited to, Defendants' retention of the Service Charges and Added Service Charges; enjoining Defendants from continuing to retain the Service Charges and Added Service Charges; and awarding compensatory and punitive damages and interest. On September 23, 2016, Indemnity filed a motion to dismiss the Beltz II lawsuit. On September 30, 2016, the Directors filed their own motions to dismiss the Beltz II lawsuit. On July 17, 2017, the Court granted Indemnity's and the Directors' motions to dismiss the Beltz II lawsuit, dismissing the case in its entirety. The Court ruled that "the Subscriber's Agreement does not govern the separate and additional charges at issue in the Complaint" and, therefore, dismissed the breach of contract claim against Indemnity for failure to state a claim. The Court also ruled that the remaining claims, including the claims for breach of fiduciary duty against Indemnity and the Directors, are barred by the applicable statutes of limitation or fail to state legally cognizable claims. On August 14, 2017, Plaintiffs filed a notice of appeal to the United States Court of Appeals for the Third Circuit. Indemnity believes it has meritorious legal and factual defenses and intends to vigorously defend against all allegations and requests for relief in the Beltz II lawsuit. The Directors have advised Indemnity that they intend to vigorously defend against the claims in the Beltz II lawsuit and have sought indemnification and advancement of expenses from the Company in connection with the Beltz II lawsuit. No further updates were provided in the Company's SEC report. Erie Indemnity Company operates as a managing attorney-in-fact for the subscribers at the Erie Insurance Exchange in the United States. The company provides sales, underwriting, and policy issuance services for the policyholders on behalf of the Erie Insurance Exchange. The company is based in Erie, Pennsylvania. ERIE INDEMNITY: Bid to Drop "Ritz" Suit Ongoing ----------------------------------------------- Erie Indemnity Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the defendants have filed motions to dismiss the class action suit by Lynda Ritz in the U.S. District for the Western District of Pennsylvania. On December 28, 2017 a lawsuit was filed in the United States District Court for the Western District of Pennsylvania captioned Lynda Ritz, individually and on behalf of all others similarly situated and derivatively on behalf of Nominal Defendant Erie Insurance Exchange v. Erie Indemnity Company, J. Ralph Borneman, Jr., Terrence W. Cavanaugh, Eugene C. Connell, LuAnn Datesh, Jonathan Hirt Hagen, Thomas B. Hagen, C. Scott Hartz, Brian A. Hudson, Sr., Claude C. Lilly, III, George R. Lucore, Thomas W. Palmer, Martin P. Sheffield, Richard L. Stover, Elizabeth A. Hirt Vorsheck, and Robert C. Wilburn, and Erie Insurance Exchange (Nominal Defendant) (the "Ritz" lawsuit). The individual named as Plaintiff is alleged to be a policyholder (subscriber) of the Erie Insurance Exchange (the "Exchange"). With the exception of Terrence W. Cavanaugh and Robert C. Wilburn, the individuals named as Defendants comprise the current Board of Directors of Indemnity. Messrs. Cavanaugh and Wilburn are former Directors of Indemnity (the "Directors"). The Complaint alleges that since at least 2007, Erie Indemnity Company has taken "unwarranted and excessive" management fees as compensation for its services under the Subscriber's Agreement. Count I of the Complaint purports to allege a claim for breach of alleged fiduciary duties against Indemnity and the Directors on behalf of Plaintiff and a putative class of subscribers. Count II purports to allege a claim for breach of alleged fiduciary duties against Indemnity and the Directors on behalf of Exchange. Count III purports to allege a claim for breach of contract and an alleged implied covenant of good faith and fair dealing against Indemnity on behalf of Plaintiff and a putative class. Count IV purports to allege a claim of unjust enrichment against several Directors. The Complaint seeks compensatory and punitive damages and requests the Court to enjoin Indemnity from continuing to retain excessive management fees; and order such other relief as may be appropriate. On March 5, 2018, Indemnity filed a motion to dismiss the Ritz lawsuit. The Directors also filed their own motions to dismiss the Ritz lawsuit on March 5, 2018. Indemnity believes it has meritorious legal and factual defenses and intends to vigorously defend against all allegations and requests for relief in the Ritz lawsuit. The Directors have advised Indemnity that they intend to vigorously defend against the claims in the Ritz lawsuit and have sought indemnification and advancement of expenses from the Company in connection with the Ritz lawsuit. Erie Indemnity Company operates as a managing attorney-in-fact for the subscribers at the Erie Insurance Exchange in the United States. The company provides sales, underwriting, and policy issuance services for the policyholders on behalf of the Erie Insurance Exchange. The company is based in Erie, Pennsylvania. ESSENDANT INC: Awaits Preliminary Approval of Settlement -------------------------------------------------------- Essendant Inc. is awaiting court approval of a class action settlement, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018. In 2017, the Company was named in a class action lawsuit filed by a former employee in the Los Angeles Superior Court. During the second quarter of 2017, the Company reached an agreement on the general terms of a settlement to resolve this litigation. The parties have finalized a settlement agreement, which is now subject to court approval. A hearing on the parties' Motion for Preliminary Approval was set for May 10, 2018. In consideration of the settlement, in the second quarter of 2017, the Company recorded a $3.0 million pre-tax reserve within "Warehousing, marketing and administrative expenses" in the Condensed Consolidated Statement of Operations. Essendant Inc. is a national distributor of workplace items, with 2017 net sales of $5.0 billion. The Company provides access to a broad assortment of over 170,000 items including janitorial, foodservice and breakroom supplies (JanSan), technology products, traditional office products, industrial supplies, cut sheet paper products, automotive products and office furniture. The company is based in Deerfield, Illinois. EXTENDICARE: Class Action Alleges Negligence at Nursing Homes ------------------------------------------------------------- Tamar Harris, writing for The Star, reports that Jose Novo had bed sores so deep that bone was exposed. Lioubov "Luba" Ijnatieva felt "something crawling" inside a skin wound on her leg. It was infested with fly maggots. Their stories are detailed in two separate statements of claim for a pair of proposed class actions that allege negligence at two Ontario nursing home giants with facilities in the GTA. The plaintiffs have since died but were both elderly patients at facilities run by Extendicare and Leisureworld (now Sienna Senior Living). These allegations have not been proven in court. None of the proposed class actions have been certified by a judge. Both statements of claim say the two defendants were negligent, breached fiduciary duties, breached terms of contract and failed to provide proper care. The long-term care services provided by them were substandard, the statements of claim say. In an emailed statement, an Extendicare spokesperson said that "we care deeply about the residents, clients and families that we serve, and our staff work hard to provide them with comfort, care, and compassion." Spokesperson Rebecca Rawn said that Extendicare does not believe the lawsuit has merit and intends to demonstrate through the court process. "Extendicare has very comprehensive programs which ensure that residents of its homes are appropriately cared for and conducts regular internal audits, external audits, and program evaluations to continuously improve, and our performance is shared publicly," Ms. Rawn said. "We cannot speak to the specifics of any of our residents' care or treatment. "We reiterate our deep commitment to providing high-quality care to our residents and to doing better in any cases where we are thought to have fallen short of that goal. We work with our residents and families to address issues and concerns and it is unfortunate when they cannot be resolved." A spokesperson from Sienna said the company had just received the claim and "are currently reviewing it." "The health and wellbeing of all residents is our primary focus, and we take pride in the quality of care our team members provide," Brian Richardson, Sienna's chief marketing officer, said in an emailed statement to the Star. "Our mission is to help residents live fully, every day." The plaintiffs are being represented by Oakley and Oakley, one of three law firms that recently formed the Nursing Homes Action Coalition, set up to handle the two recent legal actions and a third filed in summer 2016. According to one of the statements of claim filed May 1, 2018, Leisureworld Senior Care was "systemically negligent" in caring for Novo, 65, who was a resident at the company's Tullamore Nursing Home in Brampton. Novo died on May 27, 2016. Novo's son Jimmy Novo is named as the "representative plaintiff" in the lawsuit, in the statement of claim. The action is seeking general damages of $50 million and "aggravated and punitive damages" of $100 million. According to the statement of claim, Novo's "family noticed that (he) would choke on his food as a result of staff at the nursing home trying to make him eat faster." In October 2015, Novo was taken to the hospital for "infected decubitis ulcers (bed sores)," the statement of claim says. A month later, his bed sores continued to worsen, with some were recorded as stage four, "with bone being visible," according to the statement of claim. In the second statement of claim filed in November 2017, Lioubov "Luba" Ijnatieva, 91, a former resident of Extendicare's West End Villa nursing home in Ottawa, says she suffered "harm and damages due to the negligence, breach of fiduciary duties and breaches of contract." Ijnatieva has since died and is represented by her daughter Larisa Gerol. The plaintiffs are seeking general damages of $50 million and "aggravated and punitive damages" of $100 million, the statement of claim says. In the statement, Ijnatieva complained of a "crawling" sensation in her leg wound to Extendicare staff. She was hospitalized to address the chronic wound, and was "shocked and extremely upset to learn that the wound had been infested with fly maggots," according to the statement of claim. Gerol "also learned that staff at West End Villa had found that her mother's wound had fly maggots in it when they had removed bandaging from the leg, after the bandaging had not been cleaned or changed for an extended period of time," the statement says. The third legal action, filed in 2016 by Oakley and Oakley against nursing home chain Revera, has not yet been certified as a class action but has grown to more than 90 cases, senior partner Amani Oakley said. A statement of claim has been filed. Revera has filed a notice of intent to defend. Larry Roberts, senior manager of corporate affairs for Revera, said that residents and staff are the company's highest priority. "We work very hard to foster a caring environment," he said in an emailed statement. "Our staff are committed to providing a safe and supportive environment in which all our residents are treated with dignity and respect." Roberts said that to protect the privacy of Revera residents, the company does not publicly discuss individuals. "As the class action suit brought against Revera is before the courts, out of respect for the system and for all parties involved, we cannot speak to the specifics of the lawsuit. . ." he said. "We do not believe there is merit in the class action lawsuit and we are prepared to go through the court process." [GN] FACEBOOK INC: Canadians Sue Over Cambridge Analytica Scandal ------------------------------------------------------------ Sabrina Nanji, writing for Toronto Star, reports that Facebook is facing a class-action lawsuit on behalf of the 622,161 Canadians who may be among 87 million people whose personal data was improperly harvested. The proposed class action comes on the same day Cambridge Analytica -- the British political consulting firm that's now the subject of political probes in Canada, the U.S., and the U.K., as well as an investigation by Canada's privacy commissioner -- said it was shutting down and filing for bankruptcy because news reports about the privacy scandal had "driven away virtually all" of its customers and suppliers. A lawsuit filed on May 2 at the Ontario Superior Court of Justice is the second class-action to hit the Silicon Valley heavyweight over the Cambridge Analytica drama. A class action was launched in U.S. district court on behalf of 71 million U.S. and U.K. users whose data may have been scraped by the firm, which has been accused of building detailed voter profiles for electoral gain. The Canadian class action, which has yet to be certified by a judge, alleges Facebook and Facebook Canada disclosed users' personal information without their consent and failed to adequately protect their privacy. A statement of claim filed in the court on May 2 alleges the tech giant "intentionally or recklessly and without lawful justification invaded the private affairs or concerns of the (users) . . . in a way that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish." A spokesperson for Facebook said it did not have a comment about the suit. Paul Grewal, the company's vice-president and deputy general counsel, addressed concerns over privacy in a blog post. "We are committed to vigorously enforcing our policies to protect people's information. We will take whatever steps are required to see that this happens," Mr. Grewal said at the time. The lawsuit seeks $62,216,100 in punitive damages, or $100 for each of the 622,161 Canadians Facebook says may have had their info swept up by Cambridge Analytica. The firm, which has denied any wrongdoing, has ties to U.S. President Donald Trump's 2016 campaign. The suit also seeks general damages in the amount of $1,000 for each class-action member. Cambridge Analytica is not named as a defendant in the Canadian class action, which only names Facebook and Facebook Canada. Both Cambridge Analytica and Facebook are defendants in the U.S. class action. "Companies such as Facebook that collect and use personal information for commercial purposes are obliged to take strict measures to ensure that that information is not shared with or accessed by third parties without proper disclosure and prior consent," said Sajjad Nematollahi -- sajjad.nematollahi@siskinds.com -- a Toronto-based lawyer at Siskinds LLP who is representing the plaintiffs. "The implications of failing to protect the integrity of users' personal information extend beyond the privacy of those directly impacted to the foundations of our democracy," he said. Jessica Simpson, the lead plaintiff in the lawsuit, is a newlywed who previously spoke to the Star about her frustration finding out her information may have been scrapped. "I figured I've already spoken out about the privacy issues, why stop now?" said Ms. Simpson, who works as an event and fundraising specialist at a non-profit. The data was collected using a personality quiz app that was used by nearly 300,000 people, but it also scraped information about their social network and friends who didn't install the app directly, gaining access to tens of millions of connections. That means Cambridge Analytica could have gleaned, without Ms. Simpson's express permission or knowledge, her public profile, photos, current city, location "check-ins," birthday, "likes," as well as the posts and messages shared with the connection that authorized the app in the first place. She said she hopes the case prompts people to be more mindful about their online activity and that companies step up their privacy protections "to ensure that user data is secure and not being used for other purposes." In recent weeks, Facebook has acknowledged it did not do enough to protect people's personal data. CEO Mark Zuckerberg, who was grilled by U.S. lawmakers about fake news, privacy, political advertising, foreign election meddling and the platform's role in the democratic process, has also apologized for the breach. The tech giant has also announced several measures aimed at improving people's privacy, and among other things is letting people know if their information may have been accessed by Cambridge Analytica on their help centre page. [GN] * * * Facebook, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company faces multiple class action suits related to the misuse of certain data by a developer. Beginning on March 20, 2018, multiple putative class actions and derivative actions were filed in state and federal courts in the United States and elsewhere against the company and certain of its directors and officers alleging violations of securities laws, breach of fiduciary duties, and other causes of action in connection with the misuse of certain data by a developer that shared such data with third parties in violation of our terms and policies, and seeking unspecified damages and injunctive relief. Facebook said, "We believe these lawsuits are without merit, and we are vigorously defending them. In addition, the events surrounding this misuse of data became the subject of U.S. Federal Trade Commission and other government inquiries in the United States, Europe, and other jurisdictions. It is reasonably possible that some of these actions or inquiries could subject us to substantial losses, although we are currently unable to estimate the amount of such losses." Facebook, Inc. provides various products to connect and share through mobile devices, personal computers, and other surfaces worldwide. Its products include Facebook Website and mobile application that enables people to connect, share, discover, and communicate with each other on mobile devices and personal computers; Instagram, a community for sharing visual stories through photos, videos, and direct messages; Messenger, a messaging application to communicate with other people, groups, and businesses across various platforms and devices; and WhatsApp, a mobile messaging application. The company is based in Menlo Park, California. FACEBOOK INC: User Agreement May Create Grounds for Class Action ---------------------------------------------------------------- Douglass Gaking, writing for Seeking Alpha, reports that in his questioning of Facebook (FB) CEO Mark Zuckerberg, Senator John Kennedy said that "there are some impurities in the Facebook punchbowl." More bluntly, he continued, "your user agreement sucks." Mr. Kennedy's questioning deteriorated from there, as he did not get specific enough about the user agreement and showed a lack of understanding about how Facebook and its 3rd party apps work. However, he was absolutely correct in his starting point about Facebook's user agreement. It sucks. Facebook's terms of service clearly spell out the expectations for users. Users know -- if they actually read the agreement -- how they are permitted to behave on the platform, how ownership of their content works, and what the consequences are if they violate the policy. However, Facebook has no way of confirming the capacity of its users to agree to the contract. It is also not entirely clear how Facebook will behave in the contract and how it will be held accountable for misbehavior. That is with one exception: its promise to "require applications to respect your privacy." Facebook did very little to enforce its contracts, particularly with developers. In neglecting to do so, it may have violated its own user agreement. Congressional testimonies and an FTC investigation are not Facebook's only problems right now. The broken promise in Facebook's terms of service to protect user privacy may create grounds for a class action lawsuit as well. Facebook Made It Way Too Easy For Developers To Steal Your Data In a 2018 interview on 60 Minutes, app developer Aleksandr Kogan explained how he and allegedly "tens of thousands" of other developers used a Facebook feature called "friend permissions" to gather data about millions of users without their direct permission via their friends' usage of an app. Once those developers got access to the data, it left Facebook's platform, where Facebook would have no way of holding the developers accountable for upholding their agreement. Mr. Kogan sold his data to Cambridge Analytica, who used it to profile American voters for the benefit of selected political candidates. Facebook even allowed Mr. Kogan to post a user agreement on his app that contradicted the developer agreement he signed with Facebook by saying he would sell their data to third parties. That agreement was posted for a year and a half before the press finally exposed it in 2015. [GN] FACEBOOK INC: Parties Agree to Settle Class Suit over IPO --------------------------------------------------------- Facebook, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the parties have entered into a settlement agreement resolving all claims in a consolidated securities action. Beginning on May 22, 2012, multiple putative class actions, derivative actions, and individual actions were filed in state and federal courts in the United States and in other jurisdictions against the company, its directors, and/or certain of its officers alleging violation of securities laws or breach of fiduciary duties in connection with the company's initial public offering (IPO) and seeking unspecified damages. The vast majority of the cases in the United States, along with multiple cases filed against The NASDAQ OMX Group, Inc. and The Nasdaq Stock Market LLC (collectively referred to herein as NASDAQ) alleging technical and other trading-related errors by NASDAQ in connection with the company's IPO, were ordered centralized for coordinated or consolidated pre-trial proceedings in the U.S. District Court for the Southern District of New York. In a series of rulings in 2013 and 2014, the court denied the company's motion to dismiss the consolidated securities class action and granted the company's motions to dismiss the derivative actions against its directors and certain of its officers. On July 24, 2015, the court of appeals affirmed the dismissal of the derivative actions. On December 11, 2015, the court granted plaintiffs' motion for class certification in the consolidated securities action. On April 14, 2017, the company filed a motion for summary judgment. On February 26, 2018, the parties entered into a settlement agreement resolving all claims in the consolidated securities action. Facebook, Inc. provides various products to connect and share through mobile devices, personal computers, and other surfaces worldwide. Its products include Facebook Website and mobile application that enables people to connect, share, discover, and communicate with each other on mobile devices and personal computers; Instagram, a community for sharing visual stories through photos, videos, and direct messages; Messenger, a messaging application to communicate with other people, groups, and businesses across various platforms and devices; and WhatsApp, a mobile messaging application. The company is based in Menlo Park, California. FAIRMOUNT SANTROL: Monteverde & Associates Files Class Action ------------------------------------------------------------- Monteverde & Associates PC on May 2 disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of Ohio, Case No. 1:18-cv-00931, on behalf of public common unitholders of Fairmount Santrol Holdings, Inc. ("Fairmount" or the "Company") (NYSE: FMSA) who held Fairmount public common units and have been harmed by Fairmount and its board of directors (the "Board") for alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the acquisition of the Company by SCR-Sibelco NV ("Sibelco"). Under the terms of the merger agreement (the "Merger Agreement Sibelco will own, directly or indirectly, approximately 65% of the shares of combined company common stock and Fairmount stockholders, including holders of certain Fairmount equity awards, immediately prior to the effective time will own the remaining approximately 35% of the outstanding shares. The complaint alleges that the Board authorized the filing of a materially incomplete and misleading Registration Statement on form S-4/A (the "Proxy") with the Securities and Exchange Commission ("SEC"), in violation of Sections 14(a) and 20(a) of the Exchange Act. In particular, the Proxy contains materially incomplete and misleading information concerning: (i) financial projections for both companies; (ii) the valuation analyses performed by Fairmount's financial advisor, Wells Fargo Securities, LLC ("Wells Fargo"), in support of its fairness opinion; (iii) information relating to the Background of the Merger; and (iv) potential conflicts of interest faced by the Wells Fargo. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from May 2, 2018. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information:www.monteverdelaw.com/investigations/m-a/. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a boutique class action securities and consumer litigation law firm. [GN] FCA US: Court Dismisses "Bledsoe" Dodge Ram Emissions Suit ---------------------------------------------------------- The United States District Court for Eastern District of Michigan, Southern Division, granted Defendants' Motion to Dismiss Plaintiffs' Consolidated and Amended Class Action Complaint in the case captioned JAMES BLEDSOE, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. FCA US LLC, a Delaware corporation, and CUMMINS INC., an Indiana corporation, Defendants, Case No. 4:16-cv-14024 (E.D. Mich.). The Plaintiffs tested one 2012 Dodge Ram 2500, the results of which allegedly show that the vehicle emitted emissions at amounts greater than those permitted by federal and state regulations, higher than its gasoline engine counterpart, higher than what a reasonable consumer would expect, and higher than levels set for vehicles to obtain certificates of compliance. The first claim alleges that the Defendants violated the RICO Act. The second claim alleges that the Defendants violated the Magnuson Moss Warranty Act. To support the existence of the alleged worldwide scandal, the Plaintiffs cite to the Volkswagen Emissions Scandal. The EPA indicated that FCA N.V. and FCA US failed to justify or disclose defeat devices in model year 2014-2016 Dodge Ram 1500 EcoDiesel and 2014-2016 Jeep Grand Cherokee EcoDiesel vehicles. The Plaintiffs maintain that the EPA tested these vehicles and identified that they contained several Auxiliary Emissions Control Devices (AECDs) that appear to cause the vehicle to perform differently when the vehicle is being tested for compliance with the EPA emissions standards during the Federal emission test procedure than in normal operation and use. The Court finds that the Complaint lacks sufficient well-pleaded facts that allow it to draw a reasonable inference that the results from the Plaintiffs' PEMS testing of one vehicle plausibly shows the presence of a defeat device, a defect in the tested truck, or a defect that exists in the Affected Vehicles. Because the Complaint lacks such well-pleaded factual matter regarding an alleged defect in the Trucks, an alleged defeat device in the Trucks, or any plausible inferences of the misconduct alleged, the Plaintiffs have not shown that there exists an injury in fact to confer standing for this action, the Court says. The lack of well-pleaded allegations of fact in the Complaint showing the existence of a defect or the presence of a defeat device in the tested vehicle (and by extension the Affected Vehicles, based on the alleged results of Plaintiffs' PEMS testing, may be demonstrated by comparing the conclusory allegations of the instant Complaint with factual allegations found to be satisfactory in other cases similar to the one currently before the Court. Thus, the Plaintiffs' allegations of the presence of a defect or a defeat device in the identified vehicles, based on results of their PEMS testing on a single Truck, are conclusory; they are not founded on specific allegations of fact. The court may not accept as true the Plaintiffs' conclusory allegations regarding the performance of vehicles generally, other than the one tested and the presence of defeat devices or a defective emissions system in any of the vehicles. The Plaintiffs' factual allegations surrounding the currently- pending enforcement action involving the Dodge Ram 1500 and Jeep Grand Cherokee EcoDiesel vehicles provide much, if any, support to nudge the Plaintiffs' claims from conceivable to plausible. The Court recognizes that the additional factual allegations in Counts alleging European testing and results pertained to GM vehicles other than the ones at issue in the lawsuit. But in Counts, plaintiffs explained that the GM vehicles about which corroborative European test results were alleged, shared common designs, including engines, which made it plausible that those test results also applied to the plaintiffs' vehicles. The Plaintiffs allege no such links between the Dodge Ram 1500 and Jeep Grand Cherokee EcoDiesel vehicles and the Trucks at issue in the current action. Indeed, those vehicles had engines manufactured, imported and sold by VM Italy and VM North America. Consequently, the Court finds that the well-pleaded facts in the Plaintiffs' Amended Consolidated Complaint fail to raise a plausible inference of wrongdoing. The Plaintiffs' Complaint sets forth a myriad of alleged injuries that are claimed to have resulted from the Defendants' conduct. These injuries include, but are not limited to, the purchase or lease of an allegedly illegal and defective class vehicle, overpayment for an Affected Vehicle, owning a class vehicle whose resale value has or will diminish, and a number of out of pocket losses. However, all of the Plaintiffs' purported injuries hinge on the Complaint's conclusory allegations that the Defendants defrauded or misled consumers because the Affected Vehicles perform in a manner consistent with the Plaintiffs' PEMS testing results, contain a defective emission control system, contain a defective device, and/or contain defeat devices. That is to say, the Plaintiffs' alleged injuries are all based upon allegations that the Court must disregard as conclusory, or upon inferences from the well-pleaded facts contained in the Complaint the Court has found implausible. Because the Complaint does not allege sufficient well-pleaded facts to raise a plausible inference of wrongdoing, the Plaintiffs have not sufficiently identified an injury in fact to confer standing for this action. A full-text copy of the District Court's March 29, 2018 Opinion and Order is available at https://tinyurl.com/y754gt42 from Leagle.com. James Bledsoe, Paul Chouffet & Martin Rivas, Plaintiffs, represented by Dennis A. Lienhardt -- dal@miller.law.com -- The Miller Law Firm, P.C., James E. Cecchi -- jcecchi@carellabyrne.com -- Carella Byrne, Jason Henry Alperstein -- jalperstein@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jerrod C. Patterson -- jerrodp@hbsslaw.com -- Hagens Berman Sobol Shapiro, Lindsey H. Taylor, Carella, Byrne, Mark Jeffrey Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLp, Paul Jeffrey Geller, Robbins Geller Rudman & Dowd LLp, Scott A. George -sgeorge@seegerweiss.com -- Seeger Weiss LLP, Sharon S. Almonrode -- ssa@millerlawpc.com -- The Miller Law Firm, P.C., Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & E. Powell Miller, The Miller Law Firm. FCA US LLC, Defendant, represented by Darrell S. Cafasso -- cafassod@sullcrom.com -- Sullivan & Cromwell LLP, James P. Feeney -- jfeeney@dykema.com -- Dykema Gossett, Paul L. Nystromp -- nystrom@dykema.com -- Dykema Gossett & Robert J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan & Cromwell LLp. Cummins Inc., Defendant, represented by Jeffrey Soble -- jsobley@foley.com -- Foley & Lardner LLP, Jonathan W. Garlough -- jgarlough@foley.com -- Foley & Lardner LLP, Lauren M. Loew -- lloew@foley.com -- Foley & Lardner LLP, Leah R. Imbrogno -- limbrogno@foley.com -- Foley & Lardner LLP, Michael D. Leffel -- mleffel@foley.com -- Foley & Lardner LLP & Vanessa L. Miller -- vmiller@foley.com -- Foley & Lardner. FIRST COMMUNITY: Court Partly Grants Bid to Strike in "Lavigne" --------------------------------------------------------------- The United States District Court for the District of New Mexico granted in part Defendant's Motion to Strike Plaintiff's Reply Memorandum In Support of Plaintiff's Motion for Class Certification in the case captioned JANINE LAVIGNE, Plaintiff, v. FIRST COMMUNITY BANCSHARES, INC. and FIRST NATIONAL BANK TEXAS, Defendants, Civil No. 1:15-cv-00934-WJ/LF (D.N.M.). This is a putative class action for relief under the Telephone Consumer Protection Act (TCPA). The Plaintiff alleges that Defendant First Community Bancshares, Inc., and its subsidiary Defendant First National Bank Texas violated the TCPA by placing automated telephone calls to her cellular telephone for nonemergency purposes using an automatic telephone dialing system (ATDS) as defined by the TCPA. The Defendants request that the Court strike Plaintiff's reply, because it exceeds the page limit set forth in the local rules. The Plaintiff requests leave to exceed the local rule's page limit. D.N.M.LR.-Civ 7.5 specifies that a reply brief must not exceed twelve pages. Here, the Plaintiff filed a sixteen-page reply brief. The Defendants do not assert any prejudice by the extra pages, rather, they assert they are prejudiced because the Plaintiff included new arguments and new evidence in the reply. In its discretion, the Court declines to strike the Plaintiff's reply. Where a reply brief presents new legal arguments or evidence, a court may take either of two courses of action: (a) refrain from relying on the new arguments or materials in the reply or (b) permit a surreply. The Court concludes that the Defendants should have the opportunity to file a surreply, because the Plaintiff included new arguments and evidence in her reply. Although it is unclear whether the addition to the proposed class definition changes anything, the Defendants should have the opportunity to respond. Moreover, the Plaintiff attached excerpts from three depositions to her reply. The Defendants argue that the Plaintiff mischaracterized the deposition testimony in argument, and the Court concludes that the Defendants should be given the opportunity to clarify the testimony. Accordingly, the Defendants' Motion to Strike Reply is granted in part. The Defendants may file a surreply to the Motion to Certify Class. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yd2hunc2 from Leagle.com. Janine LaVigne, on behalf of herself and all others similarly situated, Plaintiff, represented by -- blake@stefancoleman.com., Law Offices of Blake Dugger & Stephen F. Taylor, Lemberg Law, LLC, 43 Danbury Road. Wilton, CT 06897, pro hac vice. First Community Bancshares, Inc. & First National Bank Texas, Defendants, represented by William S. Helfand -- bill.helfand@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith, LLP & Gregory L. Biehler -- greg.biehler@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. FITCHBURG GAS: "Bellermann" Class Action Still Ongoing ------------------------------------------------------ Unitil Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit with a caption, Bellermann et al v. Fitchburg Gas and Electric Light Company. In early 2009, a putative class action complaint was filed against Unitil's Massachusetts based utility, Fitchburg, in Massachusetts' Worcester Superior Court (the "Court"), (captioned Bellermann et al v. Fitchburg Gas and Electric Light Company). The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December 2008. The Massachusetts Supreme Judicial Court issued an order denying class certification status in July 2016, though the plaintiffs' individual claims remain pending. Unitil said, "The Company continues to believe these claims are without merit and will continue to defend itself vigorously." No further updates were provided in the Company's SEC report. Unitil Corporation (Unitil or the Company) is a public utility holding company headquartered in Hampton, New Hampshire. Unitil is subject to regulation as a holding company system by the Federal Energy Regulatory Commission (FERC) under the Energy Policy Act of 2005. The company is based in Hampton, New Hampshire. FLORIDA POWER: Must Face Class Action Over Power Outages -------------------------------------------------------- Samantha Joseph, writing for Daily Business Review, reports that a proposed class action lawsuit against Florida Power & Light Co. over hurricane-related power outages has cleared its first hurdle: a motion by FPL to dismiss the case that plaintiffs counsel have said could be worth $1 billion. Plaintiffs are asking the court to find gross negligence and breach of contract over FPL's monthly "storm surcharge." [GN] FRANKLIN RESOURCES: "Fernandez" & "Cryer" Suits Consolidated ------------------------------------------------------------ Franklin Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the court has consolidated the Fernandez action with the existing Cryer action. 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. 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. The plaintiff filed an amended complaint on February 6, 2018 naming the same defendants as those named in the Cryer action, as well as the Franklin Board of Directors, the Plan Administrative Committee, individual current and former Franklin directors, and individual current and former Investment Committee members. The plaintiff in this second lawsuit asserts 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, on behalf of the same class. On April 6, 2018, the court consolidated the Fernandez action with the existing Cryer action. Franklin Resources said, "Management strongly believes that the claims asserted in the litigation are without merit. The fact discovery phase in the consolidated action is closed and the parties are currently in the expert discovery phase. Franklin is defending against the consolidated action vigorously. Franklin cannot at this time predict the eventual outcome of the litigation 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. GAME SHOW NETWORK: Faces "Bell" Suit in W.D. Washington ------------------------------------------------------- A class action lawsuit has been filed against Game Show Network, LLC. The case is styled as Elise Bell, individually and on behalf of all others similarly situated, Plaintiff v. Game Show Network, LLC, a Delaware limited liability company, Defendant, Case No. 3:18-cv-05393 (W.D. Wash., May 16, 2018). Game Show Network is an American digital cable and satellite television channel that is owned as a joint venture between Sony Pictures Television and AT&T.[BN] The Plaintiff is represented by: Cecily C Shiel, Esq. TOUSLEY BRAIN STEPHENS 1700 SEVENTH AVE, STE 2200 SEATTLE, WA 98101 Tel: (206) 682-5600 Email: cshiel@tousley.com - and - Janissa Ann Strabuk, Esq. TOUSLEY BRAIN STEPHENS 1700 SEVENTH AVE, STE 2200 SEATTLE, WA 98101 Tel: (206) 682-5600 Email: jstrabuk@tousley.com GATEWAY ENERGY: Court Denies Bid to Dismiss Consumer Fraud Suit --------------------------------------------------------------- The United States District Court for the Southern District of New York denied Defendant's Motion to Dismiss motion to dismiss the breach of contract and New Jersey Consumer Fraud Act (NJCFA) claims pursuant to Rule 12(b)(6) in the case captioned ROBERT HAMLEN, Plaintiff, v. GATEWAY ENERGY SERVICES CORPORATION, Defendant, No. 16 CV 3526 (VB) (S.D.N.Y.). Plaintiff Robert Hamlen brings this putative class action against Gateway Energy Services Corporation for breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of the NJCFA. The Plaintiff argues that Magistrate Judge McCarthy's Opinion and Order determining that the plaintiff adequately pleaded the breach of contract and NJCFA claims is law of the case. The Court agrees. The law of the case doctrine provides when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case. The defendant's motion papers do not present any change of controlling law, nor does defendant assert Judge McCarthy's decision was clearly erroneous. The Defendant argues it is entitled to an adjudication on the merits by an Article III judge of its dispositive motion. The Defendant is wrong. The law of the case doctrine is intended to keep rulings consistent throughout a litigation. This purpose is served by maintaining consistent rulings through all stages of the case, regardless of the judge making the determination or whether that judge has life-tenure. Judge McCarthy's determination that the amended pleadings survive a Rule 12(b)(6) motion, to which defendant did not object, is the law of the case. A full-text copy of the District Court's March 29, 2018 Opinion and Order is available at https://tinyurl.com/y8jgjx8t from Leagle.com. Robert Hamlen, Plaintiff, represented by Antonino B. Roman -- aroman@fbfglaw.com -- Finkelstein Blankinship, Frei-Pearson & Garber, LLP, Chantal Khalil -- ckhalil@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, Todd Seth Garber -- tgarber@fbfglaw.com -- Finkelstein Blankinship, Frei- Pearson & Garber, LLP & Douglas Gregory Blankinship -- gblankinship@fbfglaw.com -- Finkelstein Blankinship, Frei-Pearson & Garber, LLP. Gateway Energy Services Corporation, Defendant, represented by Andrew Kasner -- andrew.kasner@emhllp.com -- Edison, McDowell & Hetherington, LLP, Steven Miles Lucks, Fishkins Lucks LLP, & Michael D. Matthews, McDowell Hetherington LLP. GENERAL MOTORS: Pedranti Sues Over Steering System Defects ---------------------------------------------------------- Derrick Pedranti, individually, and on behalf of a class of similarly situated individuals v. General Motors LLC, and Does 1 through 10, inclusive, Case No. BC702660 (Cal. Super. Ct., April 19, 2018), is an action for damages as a direct and proximate result of the acts and omissions of the Defendant, specifically by failure to disclose the Steering system defects of 2010 Buick Enclave vehicles and failure to comply with its obligations under the express warranty. General Motors LLC is engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Los Angeles County. [BN] The Plaintiff is represented by: Jacob Cutler, Esq. Daniel Tai, Esq. STRATEGIC LEGAL PRACTICES A Professional Corporation 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 E-mail: jcutler@slpattorney.com dtai@slpattorney.com GENERAL MOTORS: NY Judge Nixes Advance Successor Liability Claims ----------------------------------------------------------------- General Motors Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the U.S. District Court for the Southern District of New York granted the company's move for reconsideration of certain portions of its summary judgment ruling, holding that plaintiffs cannot advance successor liability claims in any state where New York law applies. The company is aware of over 100 putative class actions pending against it in various courts in the U.S. and Canada alleging that consumers who purchased or leased vehicles manufactured by GM or Motors Liquidation Company (formerly known as General Motors Corporation) had been economically harmed by one or more of the 2014 recalls and/or the underlying vehicle conditions associated with those recalls (economic-loss cases). In general, these economic-loss cases seek recovery for purported compensatory damages, such as alleged benefit-of-the-bargain damages or damages related to alleged diminution in value of the vehicles, as well as punitive damages, injunctive relief and other relief. Many of the pending economic-loss claims have been transferred to, and consolidated in, a single federal court, the U.S. District Court for the Southern District of New York (Southern District). These plaintiffs have asserted economic-loss claims under federal and state laws, including claims relating to recalled vehicles manufactured by GM and claims asserting successor liability relating to certain recalled vehicles manufactured by Motors Liquidation Company. The Southern District has dismissed various of these claims, including claims under the Racketeer Influenced and Corrupt Organization Act, claims for recovery for alleged reduction in the value of plaintiffs' vehicles due to damage to GM's reputation and brand as a result of the ignition switch matter, and claims of plaintiffs who purchased a vehicle before GM came into existence in July 2009. The Southern District also dismissed certain state law claims at issue. In August 2017 the Southern District granted the company's motion to dismiss the successor liability claims of plaintiffs in seven of the sixteen states at issue on the motion and called for additional briefing to decide whether Plaintiffs' claims can proceed in the other nine states. In December 2017 the Southern District granted GM's motion and dismissed successor liability claims of plaintiffs in an additional state, but found that there are genuine issues of material fact that prevent summary judgment for GM in eight other states. In January 2018, GM moved for reconsideration of certain portions of the Southern District's December 2017 summary judgment ruling. That motion was granted in April 2018, holding that plaintiffs cannot advance successor liability claims in any state where New York law applies. General Motors Company, together with its subsidiaries, designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. The company operates through GM North America, GM International, and GM Financial segments. It markets its vehicles primarily under the Buick, Cadillac, Chevrolet, GMC, Holden, Baojun, Jiefang, and Wuling brand names. The company is based in Detroit, Michigan. GENERAL MOTORS: Petitions for Rehearing and En Banc Review Denied ----------------------------------------------------------------- General Motors Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the objector's petitions for rehearing and for en banc review before the entire Sixth Circuit have been denied. In a putative shareholder class action filed in the United States District Court for the Eastern District of Michigan (Eastern District) on behalf of purchasers of the company's common stock from November 17, 2010 to July 24, 2014, the lead plaintiff alleged that GM and several current and former officers and employees made material misstatements and omissions relating to problems with the ignition switch and other matters in SEC filings and other public statements. In 2016 the Eastern District entered a judgment approving a class-wide settlement of the class action for $300 million. One shareholder filed an appeal of the decision approving the settlement. The United States Court of Appeals for the Sixth Circuit affirmed the judgment approving the settlement in November 2017. The objector subsequently filed petitions for rehearing and for en banc review before the entire Sixth Circuit. Both of those petitions were denied. General Motors Company, together with its subsidiaries, designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. The company operates through GM North America, GM International, and GM Financial segments. It markets its vehicles primarily under the Buick, Cadillac, Chevrolet, GMC, Holden, Baojun, Jiefang, and Wuling brand names. The company is based in Detroit, Michigan. GENERAL MOTORS: Still Defends 3 Airbag Inflators Class Suits ------------------------------------------------------------ General Motors Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company is aware that there are various class actions pending related to the defective airbag inflators manufactured by Takata. Through April 17, 2018, the company is aware of three putative class actions pending against GM in federal court in the U.S., one putative class action in Mexico and three putative class actions pending in various Provincial Courts in Canada arising out of allegations that airbag inflators manufactured by Takata are defective. At this early stage of these proceedings, we are unable to provide an evaluation of the likelihood that a loss will be incurred or an estimate of the amounts or range of possible loss. General Motors Company, together with its subsidiaries, designs, builds, and sells cars, trucks, crossovers, and automobile parts worldwide. The company operates through GM North America, GM International, and GM Financial segments. It markets its vehicles primarily under the Buick, Cadillac, Chevrolet, GMC, Holden, Baojun, Jiefang, and Wuling brand names. The company is based in Detroit, Michigan. GNC HOLDINGS: Appeals Ruling to Pennsylvania High Court ------------------------------------------------------- GNC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company has filed a petition for appeal to the Pennsylvania Supreme Court. On September 18, 2013, Tawny Chevalier and Andrew Hiller commenced a class action in the Court of Common Pleas of Allegheny County, Pennsylvania. Plaintiff asserted a claim against the Company for a purported violation of the Pennsylvania Minimum Wage Act ("PMWA"), challenging the Company's utilization of the "fluctuating workweek" method to calculate overtime compensation, on behalf of all employees who worked for the Company in Pennsylvania and who were paid according to the fluctuating workweek method. In October 2014, the Court entered an order holding that the use of the fluctuating workweek method violated the PMWA. In September 2016, the Court entered judgment in favor of Plaintiffs and the class in an immaterial amount, which has been recorded as a charge in the accompanying Consolidated Financial Statements. Plaintiffs subsequently filed a petition for an award of attorney's fees, costs and incentive payment. The court awarded an immaterial amount in legal fees. The Company appealed from the adverse judgment and the award of attorney's fees. On December 22, 2017, the Pennsylvania Superior Court held that the Company correctly determined the "regular rate" by dividing weekly compensation by all hours worked (rather than 40), but held that the regular rate must be multiplied by 1.5 (rather than 0.5) to determine the amount of overtime owed. Taking accumulated interest into account, the net result of the Superior Court's decision was to reduce the Company's liability by an immaterial amount, which has been reflected in the accompanying Consolidated Financial Statements. The Company filed a petition for appeal to the Pennsylvania Supreme Court on January 22, 2018. GNC Holdings, Inc. is a global specialty retailer of health, wellness and performance products, including protein, performance supplements, weight management supplements, vitamins, herbs and greens, wellness supplements, health and beauty, food and drink and other general merchandise. The company is based in Pittsburgh, Pennsylvania. GNC HOLDINGS: Bid for Class Decertification Filed in "Naranjo" -------------------------------------------------------------- GNC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a motion for class decertification has been pending in the lawsuit by Elizabeth Naranjo. On February 29, 2012, former Senior Store Manager, Elizabeth Naranjo, individually and on behalf of all others similarly situated, sued General Nutrition Corporation in the Superior Court of the State of California for the County of Alameda. The complaint contains eight causes of action, alleging, among other matters, meal, rest break and overtime violations for which indeterminate money damages for wages, penalties, interest, and legal fees are sought. As of March 31, 2018, an immaterial liability has been accrued in the accompanying financial statements. The Company intends to conduct further discovery and file a motion to decertify the class action prior to trial. The hearing for this motion was scheduled for April 27, 2018. GNC Holdings, Inc. is a global specialty retailer of health, wellness and performance products, including protein, performance supplements, weight management supplements, vitamins, herbs and greens, wellness supplements, health and beauty, food and drink and other general merchandise. The company is based in Pittsburgh, Pennsylvania. GOOGLE INC: Ballard Spahr Discusses Cy pres Settlement Ruling ------------------------------------------------------------- Alan S. Kaplinsky, Esq. -- kaplinsky@ballardspahr.com -- and Burt M. Rublin, Esq. -- rublin@ballardspahr.com -- of Ballard Spahr LLP, in an article for JDSupra, report that the U.S. Supreme Court has agreed to decide whether parties to a class action may agree to a settlement that confers cy pres awards upon various nonprofit institutions and organizations, but provides no monetary relief for class members. In Frank v. Gaos, plaintiff Paloma Gaos filed a class action against Google, alleging that the company violated her privacy rights when it allowed third-party websites to see her search queries. She sought monetary damages and certification of a nationwide class of all U.S.-based Google users. The parties entered into a class settlement that extinguished the privacy claims of the estimated 129 million people who used Google's search engine in the United States between 2006 and 2014. In exchange, Google created an $8.5 million settlement fund that was used to pay plaintiffs' attorneys' fees (25% of the fund), "incentive awards" of $5,000 to each of the named plaintiffs, and cy pres awards to six educational institutions and other organizations to promote research, education, and initiatives relating to protecting privacy on the Internet. None of the settlement fund was disbursed to class members. Although the settlement required Google to disclose on its website how users' search terms are shared, Google was not otherwise required to make any changes to its practices. The cy pres-only settlement was approved by the district court despite objections by certiorari petitioner Ted Frank, Director of Litigation for the Competitive Enterprise Institute and a frequent objector to class action settlements. The U.S. Court of Appeals for the Ninth Circuit affirmed the order approving the settlement. The Court of Appeals agreed with the district court that dividing the $5.3 million in net settlement proceeds remaining after payment of the attorneys' fees among 129 million class members would be "infeasible" because they would each receive "a paltry 4 cents in recovery," which is "a de minimus amount if ever there was one." The Google case is significant because it represents the first time the Supreme Court has agreed to decide the parameters of cy pres relief in class action settlements. When certiorari was denied in a different case raising this issue in 2013, Chief Justice John Roberts noted the "fundamental concerns" raised by cy pres relief, including "when, if ever, such relief should be considered" and "how to assess its fairness as a general matter." He suggested that, "in a suitable case, this Court may need to clarify the limits on the use of such remedies." The Court has now decided that the Google case represents its opportunity to provide such clarification. It is unclear whether the Court will confine its focus to cy pres-only settlements or will more broadly address class settlements that include cy pres distributions of settlement funds unclaimed by class members. It also is worth noting that last June, the Department of Justice announced a new policy prohibiting DOJ attorneys from entering into settlements on behalf of the federal government that provide for cy pres payments to any non-governmental entity or person that is not a party to the lawsuit. The Google case will be decided sometime next term. In the meantime, parties in class actions would be well advised to exercise caution in structuring settlements with cy pres relief. [GN] GOOGLE LLC: Says Would-Be Workers Can't Sue Together ---------------------------------------------------- Ethan Baron, writing for The Mercury News, reports that more than 250 would-be Googlers claiming the company denied them jobs on the basis of their age should not be able to band together in a single lawsuit, the company argued in a legal filing. The filing concerns a lawsuit by a woman and man claiming Google declined to hire them because they were too old. A judge in 2016 conditionally certified the case as a class action, which led more than 250 people to join the legal case. Google wants the judge's class-action decision reversed. The claims by plaintiffs Cheryl Fillekes and Robert Heath and more than 250 others "can't be manageably tried together" because the law requires that members of a class action be "similarly situated," the Mountain View tech giant said in its filing. "No glue exists here," Google argued. "Plaintiffs applied for different jobs at different levels at different locations. They were evaluated by over 1,000 different interviewers, Hiring Committee members, and recruiters using criteria that vary by job, level, and time. "And they were rejected for different reasons at different points in the context of Google's multi-stage, consensus-based hiring process," Google said, adding that it "regularly hires engineers who are age 40 or older." The lawsuit was filed in 2015 by Heath, a former software engineer for IBM, Compaq and General Dynamics, who in 2011 at age 60 was invited by Google to apply for an engineering job he didn't get. Fillekes, a systems engineer, joined Heath's suit, claiming Google interviewed her in person for four different jobs from 2007 to 2014, starting when she was 47. But despite her "impressive qualifications" the firm didn't hire her, according to the lawsuit. The conditional class certification brought into the legal action more than 250 people claiming Google failed to hire them after they applied, while aged 40 or above, for jobs in software, systems or site-reliability engineering after Aug. 13, 2010. Google, in its filing on May 1 in U.S. District Court in San Jose, described problems some of the class-action plaintiffs had during job interviews. Much of that content is redacted from public view, but references are made to one applicant who "performed poorly on the technical questions" and another whose "skills were inadequate." Google is seeking to have its motion to de-certify the class action heard in court on July 12 or soon after.[GN] GRIDSUM HOLDING: June 25 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on May 2 disclosed that an investor class action lawsuit has been filed in the United States District Court for the Southern District of New York on behalf of all persons or entities that purchased Gridsum Holding Inc. (NASDAQ:GSUM) ("Gridsum" or the "Company") publicly traded American Depositary Receipts ("ADR's") between April 27, 2017 and April 20, 2018, inclusive (the "Class Period"). Investors who have incurred losses in shares of Gridsum Holding are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action on our website, www.whafh.com. If you have incurred losses in the shares of Gridsum Holding Inc. and would like to assist with the litigation process as a lead plaintiff, you may, no later than June 25, 2018, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in Gridsum Holding Inc. Gridsum is a holding company that designs and develops sophisticated data analysis software for multinational and domestic enterprises and government agencies in China. The Company offers software that allows customers to collect and analyze information that is collected, indexed, and stored in an organized manner. The filed Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: -- Gridsum lacked effective internal control over financial reporting; -- consequently, Gridsum's financial statements were inaccurate and misleading, and did not fairly present, in all material respects, the financial condition and results of operations of the Company; and -- as a result of the foregoing, Gridsum's public statements were materially false and misleading at all relevant times. On April 23, 2018, Gridsum issued a press release entitled "Gridsum Reports Suspension of Audit Report on Financial Statements," announcing that its "audit report for the Company's financial statements for the year ended December 31, 2016 should no longer be relied upon." According to the press release, Gridsum's auditor identified certain issues in conducting its audit of Gridsum's financial results for the year ended December 31, 2017. Those issues related to "certain revenue recognition, cash flow, cost, expense items, and their underlying documentation which [the auditor] had previously raised" with Gridsum. On this news, Gridsum's American Depositary Receipt fell $1.17, or 16.04%, to close at $6.12 on April 23, 2018. Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575- 0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. [GN] HENRY SCHEIN: Kaskela Files Shareholder Class Action ---------------------------------------------------- Kaskela Law LLC disclosed that a shareholder class action lawsuit has been filed against Henry Schein, Inc. (NASDAQ:HSIC) ("Henry Schein" or the "Company") on behalf of purchasers of the Company's securities between March 7, 2013 and February 12, 2018, inclusive (the "Class Period"). Henry Schein investors are encouraged to visit www.kaskelalaw.com/case/henry-schein-inc/ to receive additional information about this action and submit their information online. Investors may also contact attorney D. Seamus Kaskela at (888) 715-1740, or via email at skaskela@kaskelalaw.com, to discuss their legal rights and options with respect to this action. On February 12, 2018, the Federal Trade Commission ("FTC") issued a press release entitled "FTC Sues Dental Products Distributors for Alleged Conspiracy Not to Provide Discounts to a Customer Segment." Therein, the FTC disclosed that it had filed a complaint against Henry Schein, and certain other dental supply companies, alleging "that they violated U.S. antitrust laws by conspiring to refuse to provide discounts to or otherwise serve buying groups representing dental practitioners." Following this news, shares of Henry Schein's common stock fell $4.79 per share, or over 6.6%, to close on February 13, 2018 at $67.39, on heavy trading volume. The shareholder class action complaint alleges that Henry Schein and certain of its executive officers made a series of false and misleading statements and/or failed to disclose to investors that: (i) Henry Schein was engaging in unethical, anti- competitive behavior through agreements with Benco Dental Supply Company and Patterson Companies, Inc., in violation of U.S. antitrust laws; (ii) Henry Schein engaged in such behavior, in part, to help maintain profitability in a consolidating health care industry; (iii) these violations of U.S. antitrust laws would result in heightened scrutiny by the federal government and a lawsuit filed by the FTC; and (iv) Henry Schein failed to maintain adequate internal controls. The complaint further alleges that, as a result of the foregoing, investors purchased Henry Schein's common stock at artificially inflated prices during the Class Period. Investors who purchased Henry Schein securities during the Class Period may, no later than May 7, 2018, seek to be appointed as a lead plaintiff representative of the class through Kaskela Law or other counsel, or may choose to do nothing and remain an absent class member. In order to be appointed as a lead plaintiff a class member meet certain legal requirements. D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (888) 715 - 1740 Website: www.kaskelalaw.com E-mail: skaskela@kaskelalaw.com [GN] HP INC: Court Narrows Claims in Defective Ink Cartridge Suit ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, granted in part and denied in part Defendant's Motion to Dismiss Consolidated Amended Complaint in the case captioned RICHARD SAN MIGUEL, et al., Plaintiffs, v. HP INC., Defendant, Case No. 5:16-cv-05820-EJD (N.D. Cal.). HP moves to dismiss the Consolidated Amended Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), asserting, among other things, that HP has no legal obligation to make its printers compatible with any and all third-party ink cartridges. The Plaintiffs each purchased an HP printer and bought third- party ink cartridges when the original HP ink cartridges that came with their printers ran out of ink. Plaintiff Richard San Miguel (Miguel) purchased an HP printer in December 2015. Miguel refilled his printer with ink cartridges manufactured by an HP competitor. These ink cartridges functioned up until September 12, 2016. On September 13, 2016, Miguel's HP printer unexpectedly failed and the screen displayed a message directing him to remove damaged ink cartridges and replace them with new cartridges. Miguel alleges that HP caused this failure by disabling his printer. The Plaintiffs assert claims, inter alia, for (1) unfair and unlawful business practices in violation of the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Section 17200, et seq., on behalf of the Injunctive Relief Class; (2) fraudulent business practices in violation of the UCL on behalf of the Class; (3) violation of the False Advertising Law (FAL), Cal. Bus. & Prof. Code Section 17500, et seq., on behalf of the Class; (4) violation of the Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code Section 1750, et seq., on behalf of the Class; (5) violations of the Texas Deceptive Trade Practices -- Consumer Protection Act, Tex. Bus. & Com. Code Ann. Section 17.01, et seq., on behalf of the Texas Subclass. HP moves to dismiss all of the Plaintiffs' claims, asserting that HP is not under any legal duty to make its printers compatible with third-party ink cartridges. HP reasons that all of the Plaintiffs' claims start from the deficient premise that HP had some duty to make its printers compatible with third-party ink cartridges, even those using cloned and infringing security chips affected by the authentication procedure in HP's firmware. HP asserts that it was under no such legal obligation, did not make any such representations and did nothing unlawful. HP's motion to dismiss is granted in part. The following claims are dismissed with leave to amend: Claim 1 to the extent it is based upon unfair business practices; Claims 2 through 4 to the extent the claims are based upon allegedly false or misleading statements on HP's printer box, printer card and warranty booklet; Claims 5 through 7; Claim 8 for violation of the CFAA under subsections (B) and (C)8; Claim 9 to the extent it is based upon Section 502 (c)(2)-(3); and Claim 11. Claim 9 is dismissed with prejudice to the extent it is based upon Section 502(c)(7) and (8). HP's motion to dismiss is denied in all other respects. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/yaps98c7 from Leagle.com. Richard San Miguel, individually and on behalf of all others similarly situated & DeLores Lawty, individually and on behalf of all others similarly situated, Plaintiffs, represented by Elizabeth Antonia Kramer eak@girardgibbs.com, Girard Gibbs LLP, Jordan S. Elias -- je@girardgibbs.com -- Girard Gibbs LLP, Taylor Christopher Bartlett -- taylor@hgdlawfirm.com -- Heninger Garrison Davis, pro hac vice & Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP. HP Inc., Delaware corporation, Defendant, represented by Samuel G. Liversidge -- sliversidge@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Jared Michael Strumwasser -- jstrumwasser@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Joseph C. Hansen -- jhansen@gibsondunn.com -- Gibson, Dunn Crutcher LLP. ILLINOIS: Court Narrows Claims in "Koss" Medicaid Suit ------------------------------------------------------ The United States District Court for the Northern District of Illinois, Eastern Division, denied Defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted in the case captioned ALMA KOSS et al., Plaintiffs, v. FELICIA F. NoRWOOD and JAMES T. DIMAS, Defendants, Case No. 17 C 2762 (N.D. Ill.). The Plaintiffs move for a preliminary injunction and to certify their proposed classes. The Plaintiffs' claims arise from delays in processing and administering their applications to be determined eligible for long-term Medicaid benefits used to pay for the cost of their care in nursing facilities (NFs) or Supportive Living Facilities (SLFs). In Count I, the plaintiffs cite 42 U.S.C. Section 1396a(a)(8), which requires a plan to provide that all individuals wishing to make application for medical assistance under the plan will have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals. Under Section 1396a(a)(3), cited in Count II, a plan is required to provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. The Defendants contend that none of the Medicaid Act provisions the plaintiffs cite in Counts I-IV are privately enforceable. The Medicaid Act does not itself provide a statutory right of action for the provisions plaintiffs cite, so the question becomes whether they are rights, privileges, or immunities for which 42 U.S.C. Section 1983 provides a vehicle for private enforcement. Plaintiffs have persuaded the court these factors favor their positions except on Count III. Here, the plaintiffs are not medical providers but people who applied for long-term care Medicaid benefits, so Bio-Medical Applications' reasoning does not speak to the situation presented in this case. Also, the Fourth Circuit has since held that Section 1396a(a)(8) gives rise to a right enforceable under Section 1983. The court therefore concludes that the Medicaid Act provisions cited in Counts I, II, and IV are privately enforceable under Section 1983. Unlike Counts I, II, and IV, the plaintiffs have not shown that the prompt-payment provision on which they rely in Count III, 42 U.S.C. Section 1396a(a)(37), or its implementing regulations are privately enforceable. Because they were brought by, or on behalf of, healthcare providers, neither Wilder nor Bradleyeven assumes the answer to the question Count III presents: may a Medicaid recipient residing in an NF or SLF bring a prompt-payment claim under Section 1396a(a)(37) via Section 1983 premised on delays in paying the facility at which she resides for the costs associated with her care? Unlike the prompt-payment issue under Section 1396a(a)(8), no Seventh Circuit decision even assumes the answer to that question. Accordingly, Count III is dismissed as abandoned. The Plaintiffs allege that they applied for long-term care Medicaid benefits and that they experienced delays ranging from 60 to 20 months. Noting that the regulations allow for certain reasonable delays, defendants argue that Illinois Department of Human Services' requests for documents described in the complaint defeat the plaintiffs' claims given the more complex types of documents and inquiry that is required when determining eligibility for long-term care benefits. The Plaintiffs allege, however, that DHS sometimes asked for documents they had already submitted. They also plead that the delay in making a determination after the last document was submitted often exceeded the time it took for DHS to request the first document. With favorable inferences, these well-pleaded facts make it plausible that the delays the plaintiffs experienced were unrelated to the need to review documents and otherwise unreasonable within the meaning of Section 1396a(a)(8). The motion to dismiss Count I is denied. The Defendants briefly argue that the complaint does not make clear whether the plaintiffs received written notice of their right to a prompt hearing. Koss alleges in the complaint that to this day she has never received a determination on the application she submitted nearly 20 months ago. The complaint says that neither Ms. Wente nor her NF has received any written communication from HFS or DHS regarding the determination of Ms. Wente's application. Small alleges the same thing, according to the complaint, and her NF was told by phone that her application was denied. Harris pleads that her application was approved nearly six months after she submitted it; she says nothing about communications in the interim. Drawing inferences favorable to plaintiffs, as the court must at this stage, those allegations embrace claims that HFS and DHS never sent any named plaintiff a notice of her right to a prompt hearing in the months her application was pending. The motion to dismiss Counts II and IV on this ground is therefore denied. The complaint states that Koss lost her eyesight as a result of the defendants' delays in processing her applications but her blindness constitutes the alleged effect of the defendants' discrimination rather than the cause. As the plaintiffs offer no other theories, the complaint fails to state an ADA claim, and Count V must be, and is, dismissed. Accordingly, the Defendants' motion to dismiss is granted in part and denied in part. Counts III and IV of the complaint are dismissed. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y6wl5kgv from Leagle.com. Alma Koss, Wanda Wente, by and through her next friend Virginia Hartman, Mary Small, by and through her next friend Brian Small & Lessie Harris, by and through her next friend Opal Acklin, Plaintiffs, represented by Robert Hugh Farley, Jr. -- farleylaw@aol.com -- Robert H. Farley, Jr., Ltd., Barbara J. Duffy -- duffyb@lanepowell.com -- Lane Powell PC, pro hac vice & Ryan Patrick McBride -- mcbrider@lanepowell.com -- Lane Powell PC, pro hac vice. Felicia F Norwood, in her official capacity as the Director of the Illinois Department of Healthcare and Family Services & James T Dimas, in his official capacity as the Secretary of the Illinois Department of Human Services, Defendants, represented by Brian Franklin Kolp, Office of the Illinois Attorney General & Michael D. Arnold, Illinois Attorney General's Office. IMPERIALCARS.COM: "Cohen" Sues Over Illegal Telemarketing Calls --------------------------------------------------------------- Julie Cohen on behalf of herself and others similarly situated, Plaintiff, v. Imperialcars.com Corp., Defendant, Case No. 18-cv- 40045 (D. Mass., March 30, 2018), seeks to enjoin Imperial Cars and/or its affiliates, agents, and/or other related entities from engaging in the unlawful telemarketing calls. The plaintiff seeks damages and such other and further relief under the Telephone Consumer Protection Act. Imperial Cars is an automotive sales company, offering new and used vehicles for purchase. It initiated pre-recorded telemarketing calls to Cohen's cellular phone, using an automated dialing system. Plaintiff never consented to receive the calls. [BN] Plaintiff is represented by: Anthony I. Paronich, Esq. Edward A. Broderick, Esq. BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA 02110 Tel: (508) 221-1510 Email: anthony@broderick-law.com ted@broderick-law.com - and - Matthew P. McCue, Esq. THE LAW OFFICE OF MATTHEW P. MCCUE 1 South A venue, Suite 3 Natick, MA 01760 Tel: (508) 655-1415 Email: mmccue@massattorneys.net INDEPENDENT BANK: Trial in BOH Acquisition Suit Set for Jan. 2020 ----------------------------------------------------------------- Independent Bank Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the Court has entered a scheduling order providing that the case be ready for trial on January 27, 2020. Independent Bank is a party to a legal proceeding inherited by Independent Bank in connection with the Company's acquisition of BOH Holdings, Inc. and its subsidiary, Bank of Houston, or BOH, that was completed on April 15, 2014. Several entities related to R. A. Stanford, or the Stanford Entities, including Stanford International Bank, Ltd., or SIBL, had deposit accounts at BOH. Certain individuals who had purchased certificates of deposit from SIBL filed a class action lawsuit against several banks, including BOH, on November 11, 2009 in the U.S. District Court Northern District of Texas, Dallas Division, in a case styled Peggy Roif Rotstain, et al. on behalf of themselves and all others similarly situated, v. Trustmark National Bank, et al., Civil Action No. 3:09-CV-02384-N-BG. The suit alleges, among other things, that the plaintiffs were victims of fraud by SIBL and other Stanford Entities and seeks to recover damages and alleged fraudulent transfers by the defendant banks. On May 1, 2015, the plaintiffs filed a motion requesting permission to file a Second Amended Class Action Complaint in this case, which motion was subsequently granted. The Second Amended Class Action Complaint asserted previously unasserted claims, including aiding and abetting or participation in a fraudulent scheme based upon the large amount of deposits that the Stanford Entities held at BOH and the alleged knowledge of certain BOH officers. The plaintiffs seek recovery from Independent Bank and other defendants for their losses. The case was inactive due to a court-ordered discovery stay issued March 2, 2015 pending the Court's ruling on plaintiff's motion for class certification and designation of class representatives and counsel. On November 7, 2017, the Court issued an order denying the plaintiff's motion. In addition, the Court lifted the previously ordered discovery stay. On January 11, 2018, the Court entered a scheduling order providing that the case be ready for trial on January 27, 2020. The Company anticipates an increase in legal fees associated with the defense of this claim as the case proceeds to trial. Independent Bank notified its insurance carriers of the claims made in the Second Amended Class Action Complaint. The insurance carriers have initially indicated that a "loss" has not yet occurred or that the claims are not covered by the policies. However, Independent Bank is continuing to pursue insurance coverage for these claims, as well as for the reimbursement of defense costs, through the initiation of litigation and other means. Independent Bank believes that the claims made in this lawsuit are without merit and is vigorously defending this lawsuit. This is complex litigation involving a number of procedural matters and issues. As such, Independent Bank is unable to predict when this matter may be resolved and, given the uncertainty of litigation, the ultimate outcome of, or potential costs or damages arising from, this case. Independent Bank Group, Inc. operates as the bank holding company for Independent Bank that provides a range of commercial banking products and services to businesses, professionals, and individuals in the United States. The company is based in McKinney, Texas. INPUT CAPITAL: Famers File Class Action Over Unfair Contracts ------------------------------------------------------------- Geoff Leo, writing for CBC News, reports that not long ago, Morris Feduk was running a 39,000-acre farming operation in the Melville area. He says he was worth about $8 million. Now, it's almost all gone. The 61-year-old says he's teetering on the brink of bankruptcy, facing a "bleak" and "hopeless" future. He says the only land he has left is his homestead, where his family has been for 115 years. Mr. Feduk blames Regina-based Input Capital. He says his dealings with the company have resulted in virtually all of his farm equipment being seized and his land being foreclosed on. "It's pretty much took away my way of life," Mr. Feduk told CBC's iTeam. Input, a publicly traded company doing business in Saskatchewan, Alberta and Manitoba, bills itself as a "low cost source of capital for farmers." It offers what it calls streaming canola contracts -- up-front payment for a fixed amount of a future canola crop. According to the company's website, it has more than 300 active contracts. Mr. Feduk and five other farm families who have entered into contracts with Input are launching a class action lawsuit, claiming "Input practised predatory lending" and it "failed to follow laws put in place for consumer safety." The lawsuit was filed on May 2. The plaintiffs say the contracts with Input are fundamentally unfair because the crop yields expected by Input weren't realistic given that bad weather can so often limit production and "even if there were no problems with the weather, equipment, or the quality of the crops, the requirements set by Input were unachievable." "Input's actions are so seemingly dishonest and false," the claim says. "The misdirection games they play with class member's lives should be put under intense scrutiny." The plaintiffs are asking the court to find Input's contracts illegal and of no force and to either eliminate the debt they owe altogether or to limit the "rate of interest" charged by Input to what is "commercially fair." Input hasn't yet filed a statement of defence, but in an email to CBC it said "we completely deny all of the false allegations and accusations made in the Statement of Claim. It is our intention to defend this action vigorously in court where actual facts will matter." Input says it's a successful company that has "hundreds of high quality, satisfied clients and our business is growing rapidly. Our company has a reputation for dealing honestly and fairly with farmers and providing them with access to alternative funding to make their operations successful." "We are disappointed that a couple of farmers who were not able to meet their obligations after many years of working together to help them succeed have decided to follow this course of action." Chasing 'that one big year' Mr. Feduk said in an interview with CBC that he was approached in 2009 by Gord Nystuen, a representative of Input's precursor company, Assiniboia Land Management. Mr. Nystuen is a former deputy minister of Agriculture and former Chief of Staff to Premier Lorne Calvert. Mr. Nystuen is also one of the founders of Input, along with Doug Emsley and Brad Farquhar. Mr. Emsley chaired the transition team when the Saskatchewan Party government came to power in 2007 and he served as a special advisor and assistant principal secretary to Premier Brad Wall. Mr. Farquhar is a former executive director of the Saskatchewan Party and was a candidate for the Conservative Party of Canada in the 2006 election. Mr. Feduk said Mr. Nystuen offered a partnership of sorts, in which the company would share the risk for Mr. Feduk's future crops. He said Mr. Nystuen told him the firm would pay up-front for a fixed amount of his 2010 canola crop for an agreed upon price per bushel. Instead of repaying with cash, Mr. Feduk would repay with canola. Mr. Feduk said that agreed-upon price would be set below the current market value. He said he was told that when it came time to sell, if the market price had gone down then Input would lose out but if the price went up the company would share the gain with him. "So that's what made it kind of appealing," said Mr. Feduk. "You've got someone that's willing to take a share of the risk, unlike a financial institution that will borrow you the money but 'we want this money back plus interest and the risk is all yours.' " He said the up-front cash was also appealing because at the time he was "stretched to the limit" financially but was eager to keep growing his operation. "Being a farmer, your goal is to get the crop in and harvest it and hit that one big year where you're going to do really well," Mr. Feduk explained. "That, I've been looking for all my life." Feduk didn't seek legal advice Mr. Feduk decided to sign on. He said initially, there wasn't a lot of paperwork and he didn't seek the advice of a lawyer before signing the agreement. According to Tony Merchant, the lawyer representing Mr. Feduk in the new class-action suit, among the farmers named in the suit, it was common to enter into contracts with Input without legal advice, which he blames in part on Input. "Nobody ever was said 'Here's the contract in advance. Think about it, we'll discuss it, perhaps you need to see a lawyer,'" Merchant told CBC. "None of the kinds of things that you would expect over million dollar deals because they said 'we're all buddies here.' " The lawsuit says Input persuaded farmers that this was a partnership in which the company would share the risk and work with the farmer, making them better-off than they would be without Input's help. "Class members were induced to believe that Input was working with them in a partnership and that if something out of their control occurred, Input would work with them towards getting their streaming contracts fulfilled." The plaintiffs claim that Input was in a fiduciary relationship with them, meaning it had a responsibility to look out for the interests of the farmers. The class action says the company failed to do that. 'Not the Santa Claus that they claimed they were' Mr. Feduk's 2010 arrangement worked well, so he entered into a multi-year agreement with the company. In 2011 his canola crop was poor and Mr. Feduk was unable to provide the amount of canola he promised. Mr. Feduk said the company agreed to roll the amount he owed into the following year. But in order to do that, it would require him to sign a new contract with Input Capital. The lawsuit says introducing new contracts when trouble came up was common practice for Input and the consequence of this move was to, in effect, impose unreasonable interest rates on farmers, driving them into debt. "Instead of one contract and 'you're in trouble, let's work our way out,' it was always new contracts which was in essence interest upon interest or canola upon canola," Mr. Merchant said. The lawsuit says Input placed farmers in a vulnerable situation where they were essentially forced to either sign or give up on that year's crop. "If Class Members refused to sign the additional security required by Input, delays in removing Input from controlling the Class Member's operation were known by Class Members to make it impossible to complete their farming operation for the year in question." According to the lawsuit, early on Input said it was not a finance company but a buyer and seller of grain and that the money it provided to farmers wasn't a loan but merely the pre- purchase of canola. The plaintiffs say there are a few problems with that. First, Input has marketed itself as a buyer and seller of grain since it was founded. The lawsuit says the company wasn't licensed as a grain dealer under the Canada Grain Act until June 2017, which leads the plaintiffs to argue "the sales they were making prior to that licensing were illegal." In addition, the plaintiffs argue that Input was in effect acting as a lender by charging interest and taking mortgages to secure the money provided. The lawsuit says Input was loaning money illegally because until August 2015 it wasn't registered as a finance corporation in the province "and therefore was not licensed to loan monies to any person in Saskatchewan." The lawsuit also claims Input was charging farmers interest without disclosing the details. "The monies they advance compared to the grain valuation they demand, are significantly skewed and in fact the rate of interest they charge on the loan of money is excessive and usurious, under the Criminal Code, some at over 60%," says the statement of claim. Mr. Feduk said he had no idea what sort of interest rate he was being charged, but he was getting nervous. "It's starting to materialize that they're actually not the Santa Claus that they claimed they were," said Mr. Feduk. Input requires security from Feduk Mr. Feduk said in the spring of 2013, Input agreed to pre-buy his canola on the condition that he provide security: mortgages on his property and security agreements on his farm equipment. He was reluctant but said he was in a tough spot. "In order to get the crop planted, you didn't have a lot of options now that we're involved with (Input) and have a commitment of deliveries to them you aren't going to get another lender to come in and assume that position right?" he said. The lawsuit says farmers in the class action had a difficult time doing business because "many licensed financial institutions, farm businesses, elevators, auctioneers, equipment dealers and other businesses now refuse to deal with farmers who have contracted with Input." The 2013 and 2014 crop year was very wet in the Melville area and Mr. Feduk was only able to get half his crop in, which meant again he couldn't deliver to Input the canola he had promised. He was getting further and further behind. But he says Input couldn't tell him how far behind. "Our accountant had always asked them for a number -- what does this farming company owe you in dollars and cents," said Mr. Feduk . "They never would give a dollar amount." The lawsuit says it has been difficult for farmers to get accurate information from Input. It says they "had no access to any information as to the quantity of crop trucked away by Input . . . Class members had no way to track the grain to see if they had been meeting their commitments. Input failed to maintain adequate or any proper business records." Feduk's farm placed in receivership Mr. Feduk knew he was in trouble after the failures of the 2013 and 2014 crop years. Input told him that in order for their relationship to continue into 2015, his farm would have to be placed into receivership. Input said Mr. Feduk could co-manage the operation with an onsite manager. Input said it would pay Mr. Feduk for working on his farm and would pay his expenses. The crop produced would be sold to reduce his debt. By that time, Mr. Feduk was getting legal advice. He said his lawyer told him he had no other viable option. The class action lawsuit says the receiver decided to only plant part of the crop that year because farming costs were too expensive. And it says Input failed to pay some of the expenses, leaving debt on Mr. Feduk's accounts. By the end of 2015, it was all over. Mr. Feduk said the company told him it was going to "realize on its security." Feduk loses almost everything In the spring of 2016, Input foreclosed on Mr. Feduk's land and seized much of his farm equipment, selling it off at auction. In an email to CBC, Input said it took this action with the consent of the court. "Little by little everything just kept disappearing," he said. "Tractors, combines, swathers, grain carts. There was everything." Mr. Feduk said the whole ordeal was especially tough on his aging brother, who until his death in March, lived with Mr. Feduk on the family farm. "Maybe the hardest part was just watching what it was doing to my brother," he said. "He'd been here all his life. It was his retirement years really. And watching all this stuff disappearing really was working on him." None of the claims in this lawsuit have been tested in court. Input sold off equipment owned by Feduk's friend It wasn't just Mr. Feduk's equipment that was disappearing. Some machinery that had been loaned to him by a friend was seized and sold too. In the fall of 2015, Robert Mitrenga loaned Mr. Feduk a grain cart and a grain dryer. They were seized with Mr. Feduk's other equipment. Input told CBC via email it took this action "according to the authority of a judge-issued court order," which included the sale of Mr. Mitrenga's grain cart. According to an April 19, 2018 provincial court judgement, Mr. Mitrenga notified Input that the equipment belonged to him but the sale went ahead anyhow. The judge in that case found against Input Capital, saying it committed a "wrongful act" and awarded Mr. Mitrenga $20,000. 'Do you want some more?': Feduk alleges assault In a separate lawsuit, Mr. Feduk says TLF Dirtworx Inc., an agent of Input, was also seizing material. According to the statement of claim, on April 20, 2016 Mr. Feduk noticed workers from the company were removing equipment from his brother's yard. It says he confronted them, asked them what they were doing and said he was going to call the police. "Just after the plaintiff stated he was going to call the police he was struck from behind by one or both of the other two drivers," the statement of claim says. The lawsuit says he was knocked unconscious. When he came to, one of the men asked "do you want some more?" Mr. Feduk was hospitalized and x-rayed. The doctor found he had "a concussion, injured kidneys, a bruised shoulder, a bruised arm and headaches." Mr. Feduk says ongoing pain from the incident makes it difficult to continue doing farm work. He says he complained to police shortly after the incident but he says to his knowledge, they have not charged anyone. When CBC reached the owner of TLF Dirtworx by phone he hadn't yet heard of the lawsuit. The company has not yet filed a statement of defence. None of the claims in this lawsuit against TLF Dirtworx have been tested in court. Feduk living with regret Mr. Feduk acknowledges his own part in his downfall. He said he regrets not walking away when Input asked him to put security on his land and equipment. "At that time I should have said let's call 'er quits," Mr. Feduk told CBC. "You guys do what you've got to do and we'll fight on that basis and I'd have walked out of here certainly in a better situation than what I ended up." He also regrets failing to get legal advice earlier. Now he's the named plaintiff in this class action, which means it has been launched in his name. Mr. Merchant said that, like Mr. Feduk, most of the other plaintiffs failed to get legal advice before signing contracts with Input. He said the plaintiffs are claiming they were told one thing verbally yet something quite different showed up in the contract. Mr. Merchant said ordinarily that would be a difficult hurdle to surmount. "The contracts all say this is the only deal and it doesn't matter what got said to you," Mr. Merchant explained. "Everything in the contract, all the words, are supposed to be there and any inducements don't matter." He said under ordinary circumstances, the law doesn't even allow people to testify about what they were verbally told if it contradicts the written agreement. But, he says, a class action lawsuit provides a workaround. "We are aided in getting around that through a class action by a whole variety of people saying the same thing," Mr. Merchant explained. "You say the same kind of thing was said to all of us and it's a systemic process of deception." Class action lawyer's tactics questioned In its email to CBC, Input questioned Mr. Merchant's tactics in launching this lawsuit. The company provided CBC with a copy of a letter the lawyer sent to a farmer in which he explained his strategy for this action. In it, Mr. Merchant details his arguments and where he believes Input is vulnerable. He tells the farmer that "launching a class action lawsuit, particularly a Tony Merchant class action, allows the threat of a powerful punch." Mr. Merchant wrote that the farmer could use the lawsuit to generate a "negative story" about Input in the media and to target Input's investors. "The impact could be enhanced through attacking Input in the perception of the investing public." Input said this letter "clearly puts this entire action in question." Mr. Merchant said that generally speaking, lawyers are conscious of the economic impact class action lawsuits have on defendants. "This is part of the pressure that impacts defendants," he said to CBC in an email. "There is nothing unusual about this as part of the tactics in trying to obtain fairness for people who have been wronged by some corporation. Annual filings by companies list all of the relative litigation. Companies have to take a reserve against profits against the possibility of losing litigation that might result in substantial judgements against them," Merchant said. Mr. Feduk is glad to be joined by others in this suit but he said the fact he's not alone in this makes things worse in a way. "It doesn't make you feel any better that someone else's misery is similar to your own. In my case it doesn't anyway," he said. [GN] IQ FORMULATIONS: Court Dismisses Consumer Fraud Suit ---------------------------------------------------- The United States District Court for the Southern District of Florida granted Defendant's Motion to Dismiss the case captioned JOSHUA DEBERNARDIS and CHRISTINA DAMORE, on behalf of themselves and all others similarly situated, Plaintiffs, v. IQ FORMULATIONS, LLC, a Florida limited liability company, and EUROPA SPORTS PRODUCTS, INC., Defendants, Case No. 17-cv-21562- GAYLES/OTAZO-REYES, (S.D. Fla.), after concluding, among other things, that the Plaintiffs do not allege that they have suffered any physical injury, or that the products fail to work as advertised. Rather, they allege a purely economic harm: that because DMBA is a new dietary ingredient, which could not be lawfully sold, the products were worthless; and had the Plaintiffs known this, they would not have purchased the supplements. Plaintiffs allege that DMBA is an illegal ingredient, rendering the supplements adulterated and misbranded for the purposes of the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 301, et seq. (FDCA) and violative of state consumer protection laws that incorporate the FDCA. Plaintiffs a citizen of Illinois and a citizen of New York, respectively bring suit against Defendant IQ Formulations, LLC (IQ), the manufacturer of the supplements, and against Europa Sports Products, Inc. (Europa), a distributor of the supplements. They broadly allege that both Synedrex and E.S.P. contain an unlawful ingredient, MethylPentane Citrate, and for that reason, each Product is similarly adulterated for purposes of the FDCA, and similar state law, and is unsafe for human consumption, and cannot be lawfully sold to consumers. In a similarly conclusory manner, the Plaintiffs further allege that by failing to disclose to Plaintiffs and putative Class Members that the Products contain unlawful dietary ingredients, the Products' labels are false and misleading, and therefore misbranded. And because misbranded products cannot be legally sold or possessed, they have no economic value, making any price paid by the Plaintiffs an unwarranted amount. Apart from these conclusory allegations, the Plaintiffs do not allege that the Supplements failed to perform as advertised or caused adverse health effects. Nor do they allege that particular representations caused them to pay more for the Supplements than they would have paid for a comparable product. The broad claim that they would not have purchased the Supplements at all had they known that IQ had failed to follow the FDA's approval procedure regarding an ingredient is insufficient to confer standing. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/y7mluhnb from Leagle.com. Joshua Debernardis, on behalf of themselves and all others similarly situated & Christina Damore, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jonathan Betten Cohen, Morgan, Morgan, Joseph J. Siprut, Siprut, PC, pro hac vice, Nick Suciu, III, Barbat Mansour & Suciu, PLLC, pro hac vice, Richard L. Miller, II, Siprut, PC, pro hac vice, Richard S. Wilson, Siprut PC, pro hac vice & Rachel Lynn Soffin, Morgan & Morgan. IQ Formulations, LLC, a Florida limited liability company, Defendant, represented by Robert Twombly. Europa Sports Products, Inc., Defendant, represented by Bruce Alan Katzen, Kluger Kaplan Silverman Katzen & Levine, P.L., Diane Wagner Katzen, Kluger Kaplan Silverman Katzen & Levine, James P. Ellison, Hyman, Phelps, & McNamara, P.C., pro hac vice & Erin E. Bohannon, Kluger, Kaplan, Silverman, Katzen & Levine, P.L. JOHNSON & JOHNSON: Quebec Court Authorizes Class Action Lawsuit --------------------------------------------------------------- Morgan Lowrie, writing for CBC News, reports that a class action lawsuit against two pharmaceutical giants that alleges the regular use of talc powder is linked to a higher risk of ovarian cancer has been authorized to proceed in Quebec. According to court documents released on May 2, the lawsuit is being filed on behalf of Quebecers who have used Johnson & Johnson baby powder or Valeant's product entitled Shower to Shower in their genital area and were later diagnosed with ovarian cancer. The lead plaintiff is a Quebec woman who says she developed cancer in 2012 after having used talc-based products from 1962 until 2013. Rosemary Kramar alleges in court documents that use of the powder "probably led to her developing ovarian cancer" and says she would not have used the products had she known a possible risk existed. A lawyer for the firm representing the plaintiffs told The Canadian Press that studies going back decades show the link between the repeated use of talc products and an increased cancer risk. Tony Merchant said the company knew women were using their products for personal hygiene reasons and should have either issued "explicit warnings" or removed them from the market. "The issue becomes whether it should be on the market at all, because when they know of the problems they should be considering removal from the market," he said in a phone interview. None of the allegations in the lawsuit have been proven in court. A lawyer for Johnson & Johnson did not wish to comment on the Quebec class action, but the company has argued there is no proof its products cause health problems. According to the court documents, the defence has disputed the validity of the studies presented by Kramar and has also claimed she had several health conditions that put her at risk of developing cancer. It is not clear whether the two companies will appeal the decision by Quebec Superior Court Justice Andre Prevost. The lawsuit is the latest in a string of legal action against Johnson & Johnson that alleges it failed to warn women about the dangers of its signature baby powder products. Last year, a California judge overturned a jury's record-breaking $417 million US verdict against Johnson & Johnson and granted the company's request for a new trial. Merchant's firm has also filed a second class action request on behalf of women in other Canadian provinces, which has yet to be authorized. They will be seeking a yet to be determined amount of financial compensation. The lawyer says about 470 Canadian women have signed on so far, including 41 in the Quebec suit.[GN] JONES MOTOR: Court Grants Bid to Dismiss "Daley" ICWA Suit ---------------------------------------------------------- The United States District Court for the Southern District of Illinois granted Defendant's Motion to Dismiss the case captioned MICHAEL DALEY, individually and on behalf of all others similarly situated, Plaintiff, v. JONES MOTOR CO., INC., and ZURICH AMERICAN INSURANCE COMPANY, Defendants, Case No. 17-CV-56-NJR-DGW (S.D. Ill.). The complaint is based primarily on the allegations that the Plaintiff and the other drivers were employees of Jones Motor, and therefore, Jones Motor was required by the Illinois Workers' Compensation Act to purchase workers' compensation coverage for the drivers. But Jones Motor purportedly schemed with Zurich to misclassify its drivers as independent contractors in order to evade its obligations under the Illinois Workers' Compensation Act and avoid paying workers' compensation premiums. Based on these allegations, Daley asserts claims against Jones Motor and Zurich for civil conspiracy (Count 1), for violations of the Illinois Deceptive Business Practices Act (Counts 2 & 3),2 and for unjust enrichment (Counts 4 & 5). Daley also asserts a claim against Jones Motor for violations of the Illinois Wage Payment and Collection Act (Count 6). The key consideration in this matter is whether the Illinois Workers' Compensation Act provides exclusivity of remedy over Daley's claims to the Illinois Workers' Compensation Commission, such that a federal court would be unable to grant relief. Jones Motor points to Section 18 of the Workers' Compensation, which provides that "All questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission." In Count 1 for civil conspiracy, Daley asserts that Jones Motor was an employer as defined by the Workers' Compensation Act and required to provide workers' compensation benefits/coverage to its employees. Daley further asserts that he and the other drivers were employees of Jones Motor and were entitled to the protections, rights, and benefits afforded by the Workers' Compensation Act. According to Daley, Jones Motor and Zurich conspired with each other to misclassify Daley and the putative class members as independent contractors in order to illegally transfer legal liability and financial responsibility for work- related injuries from Jones Motor to its employees for the financial benefit of Jones Motor and Zurich. These allegations and Daley's prayer for relief illustrate that his success on his civil conspiracy claim depends on whether he can prove as a threshold matter that he was an employee as defined by the Workers' Compensation Act, that he was entitled to benefits under the Act, and that Jones Motor failed to provide him with such benefits and instead made him pay for the benefits himself. Only the Commission is empowered to make these fact-intensive determinations that are uniquely suited to the expertise of the Commission. Unless and until the Commission does so, the Court is incapable of resolving his civil conspiracy claim, and therefore it must be dismissed for failure to state a claim upon which relief can be granted. Daley's claims in Counts 2, 3, 4, 5, and 6 also must be dismissed for failure to state a claim upon which relief can be granted. In Count 2, Daley alleges that Jones Motor violated the Illinois Deceptive Business Practices Act by misrepresenting that Daley and the putative class members were not employees and that it was their obligation and responsibility to purchase insurance policies to cover work-related injuries. As a result, Daley and the putative class members were deceived into paying their own workers' compensation premiums. In Count 3, Daley alleges that Zurich violated the "Illinois Deceptive Business Practices Act by misrepresenting that the drivers were not employees but were independent contractors of Jones Motor, which prompted the drivers into paying to defendant Zurich their own workers' compensation premiums, premiums Jones Motor was required by the Illinois Workers' Compensation Act to pay. In Count 4, Daley alleges that Jones Motor was unjustly enriched by unlawfully misclassifying its employee drivers as independent contractors and avoiding its statutory obligation to pay workers' compensation premiums, among other things. In Count 5, Daley alleges that Zurich was unjustly enriched by conspiring with Jones Motor to misclassify its drivers as independent contractors and then collecting premiums from the drivers for insurance policies that were redundant to the employees' statutory workers' compensation rights pursuant to the Illinois Workers' Compensation Act. In Count 6, Daley alleges in pertinent part that Jones Motor violated the Illinois Wage Payment and Collection Act, 820 ILL. COMP. STAT. 115/1, by unlawfully deducting occupational accident policy premiums that were actually workers' compensation policy premiums from his wages. Here, it is not obvious that any of the factors have been satisfied. For instance, while the Defendants may have entered into one or more settlement agreements, a settlement agreement on its face does not necessarily represent a position that is clearly inconsistent with their current position. There is no evidence that the Defendants conceded employment status within the settlement contracts. Similarly, it is not clear that the operative facts remain the same between the actions involving the alleged settlement contracts and the current litigation, mainly because the Court knows almost nothing about the particulars of the individuals involved and their jobs with Jones Motor. There is also no clear sign that the Court has been misled. Jones Motor has not yet taken a definitive position in this litigation and the Court has no idea what position, if any, Jones Motor has taken in Daley's workers' compensation proceedings currently pending before the Commission. A full-text copy of the District Court's March 29, 2018 Memorandum and Order is available at https://tinyurl.com/ybjo6j7d from Leagle.com. Michael Daley, individually and on behalf of all others similarly situated, Plaintiff, represented by Charles W. Armbruster, III, Armbruster, Dripps, et al., Michael T. Blotevogel, Armbruster, Dripps, et al., Roy C. Dripps, Armbruster, Dripps, et al., & John R. Daugherty, Law Office of Keith Short, P.C. Jones Motor Co., Inc., Defendant, represented by David M. Krueger -- dkrueger@beneschlaw.com -- Benesch, Friedlander et al., Joseph N. Gross -- jgross@beneschlaw.com -- Benesch, Friedlander, Coplan & Aronoff LLP & Thomas A. Lidbury -- tlidbury@beneschlaw.com -- Benesch, Friedlander et al. Zurich American Insurance Company, Defendant, represented by Beth Ann Berger Zerman -- BethAnn.Berger@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. K12 INC: Discovery Ongoing in California Securities Class Suit -------------------------------------------------------------- K12 Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that discovery is ongoing in the case entitled, In Re K12 Inc. Securities Litigation, Master File No. 4:16-cv-04069-PJH. On July 20, 2016, a securities class action lawsuit captioned Babulal Tarapara v. K12 Inc. et al was filed against the Company, two of its officers and one of its former officers in the United States District Court for the Northern District of California, Case No. 3:16-cv-04069 ("Tarapara Case"). The plaintiff purports to represent a class of persons who purchased or otherwise acquired the Company's common stock between November 7, 2013 and October 27, 2015, inclusive, and alleges violations by the Company and the individual defendants of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 10b-5 promulgated under the Exchange Act, and violations by the individual defendants of Section 20(a) of the Exchange Act. The complaint sought unspecified monetary damages and other relief. Additionally, on September 15, 2016, a second securities class action lawsuit captioned Gil Tuinenburg v. K12 Inc. et al was filed against the Company, two of its officers and one of its former officers in the United States District Court for the Northern District of California, Case No. 3:16-cv-05305 ("Tuinenburg Case"). On October 6, 2016, the Court consolidated the Tarapara Case and the Tuinenburg Case, appointed Babul Tarapara and Mark Beadle as lead plaintiffs, and recaptioned the matter as In Re K12 Inc. Securities Litigation, Master File No. 4:16-cv-04069-PJH. On December 2, 2016, the lead plaintiffs filed an amended complaint against the company. The amended complaint named an additional former officer as a defendant and specified a class period start date of October 10, 2013. The amended complaint alleges materially false or misleading statements and omissions regarding the decision of the Agora Cyber Charter School not to renew its managed public school agreement with us, student academic and Scantron results, and other statements regarding student academic performance and K12's academic services and offerings. On January 30, 2017, the Company filed its motion to dismiss the amended complaint. On August 30, 2017, as a result of a hearing on April 19, 2017, the Court granted with prejudice the Company's motion to dismiss the allegations of false statements regarding Scantron scores, but denied the motion on the allegations pertaining to non-disclosure of Agora's 2012 notice of non- renewal and other statements regarding our replacement contract with Agora, and permitted the plaintiffs to amend their complaint with respect to certain statements on the quality and effectiveness of the Company's programs. The plaintiffs were given until October 2, 2017 to amend. On October 2, 2017, the plaintiffs filed a second amended complaint and elected not to pursue their claims regarding the statements pertaining to the quality and effectiveness of our academic programs, and further dismissed two of our former officers as defendants in the case. The Court accepted these stipulations on October 4, 2017. On November 16, 2017, the Company filed its answer denying the allegations and asserting its affirmative defenses. Discovery with respect to this matter is proceeding. The Company intends to continue to defend vigorously against each and every allegation and claim set forth in the second amended complaint. K12 Inc. is a technology-based education company and offer proprietary and third party curriculum, software systems, and educational services designed to facilitate individualized learning for students primarily in kindergarten through 12th grade, or K-12. The company is based in Herndon, Virginia. LENDINGCLUB CORP: Block & Leviton Files Class Action ---------------------------------------------------- Block & Leviton LLP, a securities litigation firm representing investors nationwide, disclosed that a new class action lawsuit has been filed against LendingClub Corp. ("Lending Club" or the "Company") (NYSE: LC) and certain of its officers and directors alleging violations of the federal and securities laws. Class members interested in serving as lead plaintiff are reminded of the July 2, 2018 lead plaintiff deadline. The lawsuit, filed in the United States District Court for the Northern District of California (No. 3:18-cv-02599), alleges that throughout the Class Period, defendants made false and/or misleading statements when they stated that Lending Club customers would receive a loan with "no hidden fees." On April 25, 2018, the Federal Trade Commission ("FTC") filed a complaint alleging that Lending Club knowingly charged consumers hidden fees, contrary to their public disclosures. If you purchased Lending Club stock between May 7, 2016 and April 25, 2018 and wish to serve as a lead plaintiff, you must move the Court no later than July 2, 2018. As a member of the class, you may seek to file a motion to serve as a lead plaintiff or take no action and remain an absent class member. John DeFelice, Esq. Block & Leviton LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398-5600 E-mail: john@blockesq.com [GN] LENDINGCLUB CORP: Bragar Eagel Files Class Action ------------------------------------------------- Bragar Eagel & Squire, P.C. disclosed that a class action lawsuit has been filed in the U.S. District Court for the Northern District of California on behalf of all persons or entities who purchased or otherwise acquired LendingClub Corporation (NYSE:LC) securities between February 28, 2015 and April 25, 2018 (the "Class Period"). Investors have until July 2, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On April 25, the Federal Trade Commission filed a complaint against LendingClub, in which it alleged that the upfront fee LendingClub charges is "not clearly and conspicuously disclosed" and that "consumers frequently complain that they only discovered the fee...when they noticed that the amounts disbursed were smaller than they were expecting." Following this news, shares of LendingClub fell $0.49 per share, or almost 15%, to close at $2.77 per share on April 25, 2018. If you purchased or otherwise acquired LendingClub securities during the Class Period or continue to hold shares purchased prior to the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355- 4648, or by filling out this contact form. There is no cost or obligation to you. Brandon Walker, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Telephone: (212) 355-4648 Website: www.bespc.com E-mail: investigations@bespc.com fortunato@bespc.com walker@bespc.com [GN] LENDINGCLUB CORP: Federman & Sherwood Files Class Action Lawsuit ---------------------------------------------------------------- Federman & Sherwood disclosed that on May 2, 2018, a class action lawsuit was filed in the United States District Court for the Northern District of California against LendingClub Corporation (NYSE:LC). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is February 28, 2015 through April 25, 2018. Plaintiff seeks to recover damages on behalf of all LendingClub Corporation shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described. You may move the Court no later than Monday, July 2, 2018 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please : Robin Hester, Esq. Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Website: www.federmanlaw.com Email to: rkh@federmanlaw.com [GN] LENDINGCLUB CORP: RM LAW Files Securities Class Action Lawsuit -------------------------------------------------------------- RM LAW, P.C. disclosed that a class action lawsuit has been filed on behalf of all persons or entities that purchased LendingClub Corporation (NYSE:LC) ("LendingClub" or the "Company") publicly traded securities between February 28, 2018 and April 25, 2018, inclusive (the "Class Period"). LendingClub shareholders may, no later than June 29, 2018, move the Court for appointment as a lead plaintiff of the Class. If you purchased shares of LendingClub and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299. LendingClub operates an online marketplace platform that connects borrowers and investors in the United States. The Class Period begins on February 28, 2015, the day after LendingClub filed its annual report on Form 10-K for the year ended December 31, 2014 ("2014 10-K") with the SEC which provided LendingClub's annual financial results and position. The 2014 10- K stated LendingClub believed that all installment loans offered through its marketplace featured a fixed rate that was "clearly" disclosed to the borrower and which contained "no hidden fees." On April 25, 2018, the Federal Trade Commission ("FTC") announced in a press release that it had filed a complaint against LendingClub alleging violations of, inter alia, the FTC Act for falsely promising consumers they would receive a loan with "no hidden fees[,]" and the Gramm-Leach-Bliley Act for failing to provide customers with a clear and conspicuous privacy notice so that each customer could reasonably be expected to receive actual notice. The press release stated, in relevant part: "The Federal Trade Commission has charged the LendingClub Corporation with falsely promising consumers they would receive a loan with "no hidden fees," when, in actuality, the company deducted hundreds or even thousands of dollars in hidden up-front fees from the loans." Following this news, shares of LendingClub fell $.49 per share, or over 15% from its previous closing price to close at $2.77 per share on April 25, 2018. The complaint alleges that, throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) LendingClub falsely promised consumers they would receive a loan with "no hidden fees"; (2) LendingClub's privacy policy did not comply with the Gramm-Leach-Bliley Act; (3) consequently, the foregoing conduct would subject LendingClub's business practices to heightened regulatory scrutiny by the Federal Trade Commission; and (4) as a result, defendants' public statements were materially false and misleading at all relevant times. If you are a member of the class, you may, no later than June 29, 2018, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain RM LAW, P.C. or other counsel of your choice, to serve as your counsel in this action. Richard A. Maniskas, Esquire RM LAW, P.C. 1055 Westlakes Dr., Ste. 300 Berwyn, PA 19312 Telephone: 484-324-6800 E-291-9299 E-mail: rm@maniskas.com [GN] LENDINGCLUB CORP: Bernstein Liebhard Files Class Action Suit ------------------------------------------------------------ Bernstein Liebhard LLP announces that a class action lawsuit has been filed on behalf of purchasers of the securities of LendingClub Corporation ("LendingClub" or the "Company") (NYSE: LC) between February 28, 2015 and April 25, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for LendingClub investors under the federal securities laws. To join the LendingClub class action, and/or if you have information relating to this matter, please visit our LENDINGCLUB SHAREHOLDER PAGE or contact Daniel Sadeh toll free at (877) 779- 1414 or dsadeh@bernlieb.com. According to the lawsuit, throughout the Class Period Defendants made false and/or misleading statements and/or failed to disclose that: (1) LendingClub falsely promised consumers they would receive a loan with "no hidden fees"; (2) LendingClub's privacy policy did not comply with the Gramm-Leach-Bliley Act; (3) consequently, the foregoing conduct would subject LendingClub's business practices to heightened regulatory scrutiny by the U.S. Federal Trade Commission ("FTC"); and (4) as a result, Defendants' public statements were materially false and misleading at all relevant times. On April 25, 2018, the FTC "charged the LendingClub Corporation with falsely promising consumers they would receive a loan with 'no hidden fees,' when, in actuality, the company deducted hundreds or even thousands of dollars in hidden up-front fees from the loans." The FTC's complaint against LendingClub states that the Company is "persisting in this conduct despite warnings from its own compliance department that [it's] concealment of the up-front fee is 'likely to mislead the consumer.'" Additionally, the FTC's complaint states that LendingClub's "internal compliance reviews repeatedly cite the concealment of the fee as a significant problem for consumers." On this news, LendingClub's stock fell $0.49 per share, or over 15%, from its previous closing price to close at $2.77 per share on April 25, 2018, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than July 2, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. Contact: Daniel Sadeh, Esq. Bernstein Liebhard LLP Telephone: (877) 779-1414 Website: www.bernlieb.com E-mail: dsadeh@bernlieb.com [GN] LENDINGCLUB CORP: Rosen Law Firm Files Securities Class Suit ------------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of LendingClub Corporation (NYSE: LC) from February 28, 2015 through April 25, 2018, both dates inclusive ("Class Period"). The lawsuit seeks to recover damages for LendingClub investors under the federal securities laws. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) LendingClub falsely promised consumers they would receive a loan with "no hidden fees"; (2) LendingClub's privacy policy did not comply with the Gramm-Leach-Bliley Act; (3) consequently, the foregoing conduct would subject LendingClub's business practices to heightened regulatory scrutiny by the Federal Trade Commission; and (4) as a result, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than July 2, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1328.htmlto join the class action. Contacts: Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] LG CHEM: Lithium Batteries Settlements Obtain Final Court Nod ------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge on May 17 granted final approval to three settlements in the sprawling lithium ion battery antitrust case: of the $139 million settlement fund for direct purchasers, $41.5 million will come from LG Chem, $24.5 million from Samsung, $4.95 million from NEC Tokin, and $45 million will go to attorneys' fees. MANAGEMENT AND TECHNOLOGY: 9th Cir. Affirms Dismissal of "Fober" ---------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's judgment granting Defendant's Motion for Summary Judgment in the case captioned AUDREY FOBER, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. MANAGEMENT AND TECHNOLOGY CONSULTANTS, LLC; DOES, 1 through 10, inclusive, Defendants-Appellees, No. 16-56220 (9th Cir,). This is a Telephone Consumer Protection Act of 1991 (TCPA) lawsuit. The district court entered summary judgment for MTC on the ground that Plaintiff had consented to the calls. On an Enrollment Form, the Plaintiff provided her phone number and agreed that Health Net could disclose her information for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs. The Plaintiff argues that the calls at issue nevertheless fall outside the prior express consent exception because MTC has not demonstrated that it called the Plaintiff on Health Net's behalf. The Ninth Circuit finds that there is no statutory or logical basis for imposing such a requirement. The TCPA aims to curb a particular kind of call: a call that a person does not expect to receive. So the statute's applicability turns entirely on what conduct the called party authorized. Of course, as a theoretical matter, the Plaintiff could have authorized only calls made on Health Net's behalf. But that is not what happened. Instead, the Plaintiff authorized callers to whom Health Net disclosed her information to make a particular type of call one relating to the quality of the Plaintiff's healthcare. MTC falls within the group of permissible callers, and the calls that it placed were of the kind that the Plaintiff agreed to receive. A full-text copy of the Ninth Circuit's March 29, 2018 Opinion is available at https://tinyurl.com/y7332875 from Leagle.com. Adrian Bacon -- abacon@attorneysforconsumers.com -- (argued) and Todd M. Friedmant -- friedman@attorneysforconsumers.com -- Law Offices of Todd M. Friedman, Woodland Hills, California, for Plaintiff-Appellant. Harrison Maxwell Brown -- hbrown@blankrome.com -- (argued), Yosef Mahmood, -- ymahmood@blankrome.com -- and Ana Tagvoryan -- ATagvoryan@BlankRome.com -Blank Rome LLP, Los Angeles, California, for Defendant-Appellee. MANNA 2ND: "Jara" Suit Seeks Unpaid Overtime, Spread-of-Hours Pay ----------------------------------------------------------------- Clay Calle Jara, individually and on behalf of others similarly situated, Plaintiff, v. Manna 2nd Ave LLC (d/b/a Gina La Fornarina), Manna Madison Avenue LLC (d/b/a Gina La Fornarina), West D&P LLC (d/b/a Gina), Manna Lexington Avenue LLC (d/b/a Gina La Fornarina), Mamexicana LLC (d/b/a Gina Mexicana), Paola Pedrignani and Igor Segota, Defendants, Case No. 18-cv-02871 (S.D. N.Y., March 30, 2018), seeks to recover, withheld tips and overtime wages, unpaid minimum wages, liquidated damages and attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law. Defendants own, operate, or control a five restaurants in New York City under the names "Gina la Fornarina," "Gina" and "Gina Mexicana." Jara was employed as a counter attendant and then as a cook at these restaurants. Jara worked in excess of 40 hours per week, without appropriate overtime and spread of hours compensation. Defendants allegedly failed to maintain accurate recordkeeping of the hours worked and failed to pay Jara the required "spread of hours" pay for any day in which he had to work over 10 hours a day. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com MAPLEBEAR INC: Faces "Cortez" Suit in Calif. State Court -------------------------------------------------------- A class action lawsuit has been filed against Maplebear, Inc. The case is styled as Javier Cortez, on behalf of himself and all others similarly situated, Plaintiff v. Maplebear, Inc. (D/B/A INSTACART), Defendant, Case No. CGC18566596 (Cal. Super. Ct., May 16, 2018). Instacart is an American company that operates as a same-day grocery delivery service. The Plaintiff is represented by: SHANNON LISS-RIORDAN, Esq. Lichten & Liss-Riordan, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Tel (617) 994-5800 Fax (617) 994-5801 Email: info@llrlaw.com MARRIOTT INT'L: Court Denies "Arias" Class Certification Bid ------------------------------------------------------------ The United States District Court, District of Columbia, denied Plaintiffs' Motion for Class Certification in the case captioned ROSA ARIAS, Plaintiff, v. MARRIOTT INTERNATIONAL, INC., Defendant, Civil Action No. 15-1258 (CKK) (D.D.C.). Plaintiff Rosa Arias moves to certify a class of housekeepers employed by Defendant Marriott International, Inc., in its hotels in the District of Columbia. Some ambiguity notwithstanding, the claims of the Second Amended Complaint may be summarized as follows, inter alia: (1) discrimination based on race, national origin, and retaliation for a protected activity under 42 U.S.C. Section 1981; (2) breach of contract in allegedly terminating Plaintiff's employment; (3) breach of implied covenant of good faith and fair dealing in allegedly terminating Plaintiff's employment in bad faith; (4) wrongful termination of at-will contract in violation of public policy and 42 U.S.C. Section 1981, pled in the alternative to Counts Two and/or Three; (5) negligence and negligent misrepresentation of material facts, alleging that Defendant breached its duty of care through various employment actions relating to the chemicals used in the workplace. Numerosity Turning to the first prong of Rule 23(a), numerosity, the Plaintiff proposes a class comprising two groups of housekeepers at the Defendant's hotels who allegedly were subjected to hazardous chemicals without the use of PPE: (a) the employees who worked with the Plaintiff at the Defendant's Metro Center Hotel, and (b) the employees who worked at others of the Defendant's hotels in the District of Columbia. As the Plaintiff correctly observes, she must furnish a reasonable basis for her estimated class size. The only basis the Plaintiff provides in her briefing is that the Plaintiff, Rosa Arias, has confirms that ether is a definite number of more than 40 Housekeeping employees at the Defendant's Metro Center Hotel. The Plaintiff's bare assertion in a brief that there are more than 40 in one of the two groups, without even so much as an affidavit in support, does not rise to the level of proving that there are in fact sufficiently numerous parties. It is all too convenient, moreover, that the Plaintiff's allegation matches this jurisdiction's precedent to which she refers of at least forty class members. As the Plaintiff has not provided a reasonable basis for finding that there are in fact sufficiently numerous parties, Plaintiff fails to satisfy Rule 23(a)(1)'s numerosity requirement. Commonality The Plaintiff attempts to re-characterize her breach of implied covenant claim as raising the question of whether the Defendant breached the implied covenant by requiring the Housekeeping Employees to work with chemicals that the Defendant knew that would cause irreversible respiratory and eye injuries without the use of the proper, chemical label prescribed PPE. As this is wholly inconsistent with the Plaintiff's pleading in the Second Amended Complaint, which ties the implied covenant claim only to her termination, this appears to be an improper attempt to amend the complaint outside the process set forth in the federal and local rules. Only the Plaintiff's characterization of her claims as presented in her Second Amended Complaint is available in her efforts to prove commonality. As the Plaintiff's claims concern only the circumstances surrounding the Plaintiff's alleged termination, the Plaintiff has not established that the resolution of these claims could generate common answers apt to drive the resolution of the litigation. Typicality The Plaintiff's remaining claims are for termination in retaliation for a protected activity, breach of contract in her alleged termination, and breach of implied covenant of good faith and fair dealing in her alleged termination. All of these claims concern the Plaintiff alone and involve details specific to her leave of absence, testimony in Sanchez, and alleged termination. The Plaintiff's surviving claims concern a course of conduct, series of events, and legal theory not shared by other members of the putative class. Accordingly, the Plaintiff's claims are not typical of the claims or defenses of the putative class, and the Plaintiff has not discharged her burden to meet Rule 23(a)(3)'s typicality requirement. Adequacy of Representation of the Class In the event that the Plaintiff had satisfied the other requirements of Rule 23(a), the Plaintiff still would not meet Rule 23(a)'s final requirement of adequacy of representation. Many of the same issues that have plagued the Plaintiff's ability to meet Rule 23(a)'s other requirements are equally damaging here. The Plaintiff's claims concerning circumstances of her alleged termination are unique to her. They are distinct from any claims that putative class members could pursue that strictly regard hazardous chemical usage and PPE. Because the Plaintiff's legal interests are separate and dissimilar from those of other putative class members, Plaintiff fails to satisfy Rule 23(a)(4)'s requirement that she adequately represent the class. Predominance Had the Plaintiff satisfied Rule 23(a)'s requirements, she would have been required to meet Rule 23(b)(3)'s requirements of predominance and superiority. In the Plaintiff's surviving claims, however, common issues cannot predominate because there are no common issues remaining. Where the Plaintiff's claims all concern the circumstances surrounding her own alleged termination, and in the absence of any allegation that others were similarly terminated, there cannot exist generalized evidence which proves or disproves an element on a simultaneous, class-wide basis. Because there are no elements shared between the Plaintiff and members of the putative class, the Plaintiff fails to meet Rule 23(b)(3)'s predominance requirement, including the general factors listed therein. Superiority Lastly, even if the Plaintiff had satisfied all of Rule 23(a)'s requirements in addition to Rule 23(b)(3)'s predominance requirement, the same issues regarding a lack of class-wide claims, interests, and facts that have dogged the Plaintiff's attempt at class certification up until this point would also prevent her from satisfying 23(b)(3)'s superiority requirement. The individualized nature of the Plaintiff's claims does not concern the putative class members and, as such, is more appropriate to resolve outside of a class action. As such, the Plaintiff does not satisfy Rule 23(b)(3)'s superiority requirement. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion is available at https://tinyurl.com/yb9g5sak from Leagle.com. ROSA ARIAS, Brings this action for herself and others similarly situated, Plaintiff, represented by Harry Truman Spikes, L'Enfant Plaza S.W. MARRIOTT INTERNATIONAL, INC., Defendant, represented by Kara M. Maciel, CONN MACIEL CAREY LLP & Lindsay A. DiSalvo, CONN MACIEL CAREY, LLP. MARRIOTT VACATIONS: Claims in Ritz-Carlton Club Suit Narrowed ------------------------------------------------------------- The United States District Court for the District of Colorado granted in part and denied in part Defendant Aspen Highlands Condominium Association's Motion to Dismiss Plaintiffs' Fifth Amended Complaint in the case captioned RCHFU, LLC, a Colorado limited liability company, et al., Plaintiffs, v. MARRIOTT VACATIONS WORLDWIDE CORPORATION, et al., Defendants, Civil Action No. 16-cv-01301-PAB-GPG (D. Colo.). This action arises out of a dispute regarding the management of the Ritz-Carlton Club, Aspen Highlands, located in Aspen, Colorado and its affiliation with Marriott Vacation Club Destinations (MVC), a timeshare program with more than 400,000 members operated by MVCI that sells points, which can be used to stay at various resorts owned by MVCI or affiliated with the program. The Plaintiffs own deeded 1/12 fractional interests in condominiums at Aspen Highlands that entitle them to use of the condominium for four weeks per year. The Plaintiffs bring five claims: (1) breach of fiduciary duty against the Association, RC Management, and Cobalt; (2) constructive fraud against the same defendants; (3) aiding and abetting a breach of fiduciary duty and constructive fraud against all defendants; (4) conspiracy against all defendants; and (5) unjust enrichment against RC Management, Cobalt, MVW, MVCI, and Lion & Crown. The Plaintiffs seek monetary damages and disgorgement of all monies they have paid. First Claim -- Breach of Fiduciary Duty Claim The Plaintiffs claim that the Association, RC Management, and Cobalt owe them fiduciary duties for two reasons: (1) defendants had a high degree of control over plaintiffs' property and (2) agency and subagency relationships existed between plaintiffs and defendants. The Court finds that the plaintiffs have sufficiently alleged that the Management Agreement entrusted RC Management with control over plaintiffs' property sufficient to create fiduciary duties. Because the Court finds sufficient allegations that fiduciary duties existed based on control, and defendants do not contest this theory with respect to the Association and Cobalt, the Court does not reach plaintiffs' alternative theory that defendants owe fiduciary duties as agents of plaintiffs. The Marriott defendants argue that, notwithstanding the powers granted, the same contract language expressly disclaims any fiduciary relationship between the parties. The specific language the Marriott defendants refer to is the statement that nothing in this Agreement shall be construed as creating a partnership, joint venture, or any other relationship between the parties to this Agreement. However, when read in context, nothing in this language is inconsistent with RC Management owing fiduciary duties to plaintiffs. The Marriott defendants also argue that the Management Agreement specifically identifies RC Management as an independent contractor, which is inconsistent with being an agent. First, the Marriott defendants do not suggest how to reconcile the independent contractor paragraph with the language in the Appointment and Acceptance of Agency paragraph, which states that in taking any action under this Agreement, the Management Company shall be acting on behalf of the Association. Second, an independent contractor can be a fiduciary of the other contracting party and owe fiduciary duties based on the contractual relationship. Considering the Management Agreement as a whole, the Court finds that, at this stage of the proceedings, the independent contractor paragraph appears consistent with the existence of fiduciary duties. Accordingly, the Court rejects the Marriott defendants' argument that provisions in the Management Agreement requires dismissal of plaintiffs' breach of fiduciary duty claim. The Association argues that the plaintiffs' breach of fiduciary duty claim against it should be dismissed because it rests on the Association's Board's alleged breach of its contractual fiduciary duty under the Declaration of Condominium that requires the Board to 'represent the interests of' the owners 'in a fair and just manner on all matters that may affect any or all' owners and holds the Board to 'the standards of good faith and reasonableness. Plaintiffs respond that the economic loss rule is inapplicable because the complaint alleges a judicially recognized, special independent fiduciary duty that supports a tort action even though the parties have entered into a contractual relationship. The Association argues that the business judgment rule immunizes it from the plaintiffs' breach of fiduciary duty claims because the plaintiffs fail to allege facts showing the Association's actions were taken in bad faith. Plaintiffs respond that they have alleged facts showing bad faith and arbitrary action by (a) the Association promising a vote on the affiliation decision and then approving the affiliation without a vote and (b) the Association opposing the affiliation on the basis that it would violate the restrictive covenants, but then agreeing to the affiliation anyway. The Court finds that the allegations in the complaint sufficiently set forth a claim that the Association acted arbitrarily by declining to hold a vote before agreeing to the MVC affiliation. The Plaintiffs allege that the Association promised such a vote and told its members that such a vote was legally required, before acting contrary to these statements without disclosure or explanation. With respect to the Association's change of opinion regarding the legality of the affiliation, the complaint sufficiently alleges that this action was also arbitrary. Although the Association now presents arguments that the Board acted in good faith based on a particular legal rationale, there are no allegations in the complaint to indicate that the Association's present legal position was the Board's rationale and basis for its actions. Instead, the plaintiffs allege that the Association initially took a position that the MVC affiliation was impermissible under the restrictive covenants, and then, without explanation, acted contrary to that position, that the Association acted arbitrarily. The Court finds the plaintiffs' allegations are sufficient to overcome the business judgment rule at the pleading stage. The Marriott defendants argue that the plaintiffs have not alleged a breach of any fiduciary duty owed to plaintiffs by the Association because affiliating with the MVC was not in the Association's power and because the restrictive covenants did not preclude the MVC affiliation. In particular, the Marriott defendants argue that Cobalt's possession of the exclusive power to make decisions under the Affiliation Agreement precludes a claim against the Association. The Plaintiffs respond that the Association violated its duty of loyalty by entering into the MVC affiliation and by failing to enforce the restrictive covenants. The Court, however, agrees that the restrictive covenants do not preclude the MVC affiliation and, therefore, plaintiffs cannot sustain a breach of fiduciary duty claim based on the Association's failure to enforce the restrictive covenants. In Hoyt v. Marriott Vacations Worldwide Corp., 2014 WL 509903, at *3 (D. Minn. Feb. 7, 2014), the court, applying Colorado law, analyzed the affiliation agreement and governing documents with the same restrictive covenants at issue here and found that, because the Agreements expressly contemplate the addition of non- owner Associate Members to the Membership Program, the plaintiffs' allegations related to such changes cannot state a claim for breach of contract. The Plaintiffs do not attempt to distinguish Hoyt; instead, they argue that the interpretation of the restrictive covenants should not be resolved at this stage because they are ambiguous. The Plaintiffs do not point to any specific ambiguity and the Court finds no ambiguity relevant to plaintiffs' claim. The Court agrees with the court in Hoyt. Accordingly, because the Association's failure to enforce the restrictive covenants cannot have caused plaintiffs' damages, the Court will dismiss plaintiffs' breach of fiduciary duty claim against the Association insofar as it is based on its failure to enforce the restrictive covenants. Second Claim -- Constructive Fraud The Court finds that the plaintiffs' allegations that the Association, RC Management, and Cobalt substituted a survey for the promised vote without informing the members of its intention to do so supports a claim for constructive fraud. Constructive fraud is possible even where a defendant acted in good faith without intent to deceive, but nonetheless breaches a fiduciary duty owed to another on account of failure to make full disclosure. The Defendants attack the conclusory allegations contained in the claim itself, but fail to account for or discuss the incorporated allegations in the body of the complaint that detail plaintiffs' reliance on the promised vote. The Plaintiffs' allegations include to allegations that the Marriott defendants engaged in similar tactics in relation to other Ritz-Carlton clubs and that, at clubs where member votes were held, the members defeated affiliation proposals and avoided MVC affiliation. The Defendants' argument that the powers granted by the Affiliation Agreement are dispositive is unpersuasive in light of these allegations and the allegations that the Marriott defendants agreed with the Association not to carry out the affiliation without a vote. The Court finds that the plaintiffs' allegations are sufficient to show material misrepresentations and omissions, the plaintiffs' justifiable reliance on defendants' statements, and causation. The Plaintiffs' allegations of different outcomes at similar resorts where a vote was held, along with allegations of the Marriott defendants' efforts, with the cooperation of the Association, to avoid such a vote at Aspen Highlands are sufficient to state a claim for constructive fraud. Accordingly, the Court will dismiss the plaintiffs' constructive fraud claim insofar as it is based on allegations that defendants failed to disclose conflicts with the governing documents and the governing documents' requirement that a vote be held, but will otherwise allow the claim to proceed. Third Claim -- Aiding and Abetting The elements of the tort of aiding and abetting a breach of fiduciary duty include: (1) breach by a fiduciary of a duty owed to a plaintiff, (2) a defendant's knowing participation in the breach, and (3) damages. The Association argues that there are no allegations that support a claim that it aided in the MVC affiliation. As the plaintiffs point out, the Association ignores the plaintiffs' allegation that it agreed to and worked with the Marriott defendants to cause the affiliation. In particular, the Association does not address the April 2014 Memorandum of The Marriott defendants do not challenge plaintiffs' third claim except insofar as it is predicated on the first and second claims, which the Court will allow to proceed in part. Therefore, the Court will deny defendants' motions with respect to plaintiffs' third claim. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/yabymj22 from Leagle.com. RCHFU, LLC, a Colorado limited liability company, Jeffrey A Bayer, Gail L Bayer, Robert Buzzetti, Julie C Canner, Lee James Chimerakis, Theresa Ann Chimerakis, Kevin Clare, Nancy Lynne Shute, Toby L Cone Trust, Toby L Cone, its Trustee, Richard Davis, Shirley J Davis, Carl Eichstaedt, III, James Richard Farquhar, Jennifer Lucille Farquhar, Koppleman Family Trust, Larry Koppleman, its Trustee, David Lancashire, Stephen Andrews, Bonnie Likover, Craig Lipton, Jeremy Lowell, D.D.S., Lori Lowell, Edward P Meyerson, Andrea C Meyerson, Jerry M. Nowell Trust, Jerry M Nowell, its Trustee, Dee Ann Davis Nowell, its Trustee, Dee Ann Davis Nowell Trust, Thomas M. Prose Revocable Living Trust, Thomas M Prose, M.D., its Trustee, Casey M Rogers, Courtney S Rogers, Robert A Sklar, its Trustee, Robert A. Sklar Trust, C. Richard Stasney, M.D., Susan P Stasney, TSE Holdings, LLC, a Colorado limited liability company, Stephen Weinstein, Brenda Weinstein & Jack Zemer, on behalf of themselves and all others similiarly situated, Plaintiffs, represented by Isabella Martinez -- isabella@reiserlaw.com -- Reiser Law P.C., Linda Pham Lam -- lpl@classlawgroup.com -- Gibbs Law Group, Matthew C. Ferguson, Matthew C. Ferguson Law Firm, P.C.,Matthew Whitacre Reiser -- matthew@reiserlaw.com -- Reiser Law P.C., Michael Joseph Reiser -- Michael@reiserlaw.com -- Reiser Law P.C., Michael Lawrence Schrag -- mls@clasaslawgroup.com -- Gibbs Law Group & Tyler Roberts Meade -- tyler@meadefirm.com -- The Meade Firm. Marriott Vacations Worldwide Corporation, a Delaware corporation, Marriott Ownership Resorts, Inc., a Delaware corporation, Ritz- Carlton Management Company, LLC, a Delaware limited liability company, Cobalt Travel Company, LLC, a Delaware limited liability company & Lion & Crown Travel Co., LLC, The, a Delaware limited liability company, Defendants, represented by Ian Scott Marx -- marxi@gtlaw.com -- Greenberg Traurig, LLP, Jaclyn DeMais -- demaisj@gtlaw.com -- Greenberg Traurig, LLP, Philip Rabner Sellinger -- sellingerp@gtlaw.com -- Greenberg Traurig, LLP, Roger Brian Kaplan -- kaplanr@gtlaw.com -- Robins Kaplan, LLP, Todd Lawrence Schleifstein -- schleifsteint@gtlaw.com -- Greenberg Traurig, LLP & Naomi G. Beer -- beern@gtlaw.com -- Greenberg Traurig, LLP. MATTEL INC: Continues to Defend Consolidated Class Suit in Cal. --------------------------------------------------------------- Mattel, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a purported class action lawsuit is pending in the United States District Court for the Central District of California. A purported class action lawsuit is pending in the United States District Court for the Central District of California (consolidating Waterford Township Police & Fire Retirement System v. Mattel, Inc., et al., filed June 27, 2017; and Lathe v. Mattel, Inc., et al., filed July 6, 2017) against Mattel, Christopher A. Sinclair, Richard Dickson, Kevin M. Farr, and Joseph B. Johnson alleging federal securities laws violations in connection with statements allegedly made by the defendants during the period October 20, 2016 through April 20, 2017. In general, the lawsuit asserts allegations that the defendants artificially inflated Mattel's common stock price by knowingly making materially false and misleading statements and omissions to the investing public about retail customer inventory, the alignment between point-of-sale and shipping data, and Mattel's overall financial condition. The lawsuit alleges that the defendants' conduct caused the plaintiff and other stockholders to purchase Mattel common stock at artificially inflated prices. In addition, a stockholder has filed a derivative action in the United States District Court for the District of Delaware (Lombardi v. Sinclair, et al., filed December 21, 2017) making allegations that are substantially identical to, or are based upon, the allegations of the class action lawsuit. The defendants in the derivative action are the same as those in the class action lawsuit plus Margaret H. Georgiadis, Michael J. Dolan, Trevor A. Edwards, Frances D. Fergusson, Ann Lewnes, Dominic Ng, Vasant M. Prabhu, Dean A. Scarborough, Dirk Van de Put, and Kathy W. Loyd. On February 26, 2018, the derivative action was stayed pending further developments in the class action litigation. The lawsuits seek unspecified compensatory damages, attorneys' fees, expert fees, costs and/or injunctive relief. Mattel believes that the allegations Mattel designs, manufactures, and markets a broad variety of toy products worldwide which are sold to its customers and directly to consumers. The company is based in El Segundo, California. MAXIM HEALTHCARE: Partial Summary Judgment in "Jordan" Granted -------------------------------------------------------------- The United States District Court for the District of Colorado granted in part and denied in part the Plaintiffs' Motion for Partial Summary Judgment in the case captioned THERES JORDAN, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff, v. MAXIM HEALTHCARE SERVICES, INC., Defendant, Civil Action No. 15-cv-01372-KMT (D. Colo.). The crux of this case involves unpaid overtime for employees employed by a third-party agency. More specifically, Plaintiff was a certified nursing assistant employed by Defendant from February 2007 to December 2013. The parties agree that the Plaintiff was a home health care worker (HHCW) who would be classified as a provider of companionship services. The Defendant is a for-profit healthcare services company that provides its customers with in-home personal care and management and/or treatment of a variety of medical and non-medical conditions. While employed by the Defendant, the Plaintiff was paid on an hourly basis and was not paid overtime compensation. The Plaintiff sued Defendant alleging that it failed to pay her, and the Rule 23 class of HHCWs she represents, overtime wages under Colorado's Wage Act, C.R.S. Sections 8-4-101, et seq.(CWA), Minimum Wage Order (MWO), and 7 Colo. Code Regs 1103-1, Section 5 (CCR). The Defendant's business decision to rely upon the obviously flawed DOL interpretation (being a non-judicial interpretation) does not show a change in the law; rather, it only shows, as the Plaintiff posits, that Colorado DOL chose not to enforce the law the way it was written under its flawed interpretation of the exemption. The law, that is the language of the CWA itself, never changed. And nor did its meaning: the language requires the Defendant to pay the Plaintiff (and the class) overtime for their overtime hours worked. While the Defendant argues that it has relied upon DOL's executive branch interpretations; employees of the Defendant have relied on the language of the statute and the court's judicial interpretation. The equities clearly favor the latter thus factor (3), like factor (2), cuts against the Defendant. As such, because the presumption weighs against the Defendant's preferred position, and since at least two of the three factors under the exception cut against Defendant, the court holds that the March 17, 2016 order applies retroactively. To eliminate any question on this issue, the parties have each conceded that liability under the statute rises and falls on the statutory interpretation of the companion exemption specifically, whoever wins on the question of whether a third-party employer like Maxim can utilize the companionship services exemption of the CWA will also win the District Court class action. Save its safe-harbor and retroactivity arguments being arguments that have been unsuccessful, the Defendant also agrees with the Plaintiff regarding the binary outcome of statutory interpretation. Accordingly, since the Plaintiff was successful on the statutory interpretation issue in earlier proceedings Defendant is liable under the CWA for violations of same. The Defendant raises the issue of whether Plaintiff's claim is subject to a two-year Statute of Limitations period. The Defendant's argument holds merit. Sealing the case against the Defendant, the court's holding on Statute of Limitations defense squares with disposition of the other issues in this opinion. For instance, where the safe-harbor argument did not provide solace for the Defendant because it is not expressed in the statute -- the two-year Statute of Limitation provision does allow Defendant to prevail on this issue. That section expressly provides: "All actions brought pursuant to this article shall be commenced within two years after the cause of action accrues and not after that time; except that all actions brought for a willful violation of this article shall be commenced within three years after the cause of action accrues and not after that time." So too here. Because the Defendant's actions do not rise to the heady heights of willfulness under the statute, Defendant succeeds in restricting the period of liability to a two-year period. In sum, the court largely subscribes to the Plaintiff's positions with the exception of the two-year Statute of Limitations defense consistent with the reasoning in this opinion. Accordingly, the Defendant's Motion for Summary Judgment is denied in part and granted as to the two-year Statute of Limitations defense consistent with this opinion. The Plaintiff's Motion for Summary Judgment is granted in part and denied as to the two-year Statute of Limitations defense. A full-text copy of the District Court's March 29, 2018 Order is available at https://tinyurl.com/y76jq5kg from Leagle.com. Theresa Jordan, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff, represented by Jacob Robert Rusch -- jrusch@johnsonbecker.com -- Johnson Becker, PLLC, Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz, PC, Molly E. Nephew -- mnephew@johnsonbecker.com -- Johnson Becker, PLLC, Neil B. Pioch, Sommers Schwartz, PC, Robert Eugene DeRose, II -- bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP & Robi J. Baishnab -- rbaishnabgbarkanmeizlish com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP. Maxim Healthcare Services, Inc., Defendant, represented by Joseph L. Lambert -- josephJambert@hoganlovells.com -- Hogan Lovells US LLP, Lincoln Owens Bisbee -- lincoln.bisbee@morganlewis.com -- Morgan Lewis & Bockius, LLP, Matthew James Sharbaugh -- matthew.sharbaugh@morganlewis.com -- Morgan Lewis & Bockius, LLP & Thomas F. Hurka -- thomas.hurka@morganlewis.com -- Morgan Lewis & Bockius, LLP. MDL 2099: Stanford Securities Litigation Pending ------------------------------------------------ SEI Investments Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that SEI has been named in seven lawsuits filed in Louisiana courts; four of the cases also name SPTC as a defendant. The procedural status of the seven cases varies. The Lillie case, filed originally in the 19th Judicial District Court for the Parish of East Baton Rouge, was brought as a class action and is procedurally the most advanced of the cases. SEI and SPTC filed exceptions, which the Court granted in part, dismissing claims under the Louisiana Unfair Trade Practices Act and permitting the claims under the Louisiana Securities Law to go forward. On March 11, 2013, newly-added insurance carrier defendants removed the case to the United States District Court for the Middle District of Louisiana. On August 7, 2013, the Judicial Panel on Multidistrict Litigation transferred the matter to the Northern District of Texas where MDL 2099, In re: Stanford Entities Securities Litigation ("the Stanford MDL"), is pending. On September 22, 2015, the District Court on the motion of SEI and SPTC dismissed plaintiffs' claims for primary liability under Section 714(A) of the Louisiana Securities Law, but declined to dismiss plaintiffs' claims for secondary liability under Section 714(B) of the Louisiana Securities Law based on the allegations pled by plaintiffs. On November 4, 2015, the District Court granted SEI and SPTC's motion to dismiss plaintiffs' claims under Section 712(D) of the Louisiana Securities Law. Consequently, the only claims of plaintiffs still pending before the District Court in Lillie are plaintiffs' claims for secondary liability against SEI and SPTC under Section 714(B) of the Louisiana Securities Law. On May 2, 2016, the District Court certified the class as being "all persons for whom Stanford Trust Company purchased or renewed Stanford Investment Bank Limited certificates of deposit in Louisiana between January 1, 2007 and February 13, 2009". Notice of the pendency of the class action was mailed to potential class members on October 4, 2016. On December 1, 2016, a group of plaintiffs who opted out of the Lillie class filed a complaint against SEI and SPTC in the United States District Court in the Middle District of Louisiana, alleging claims essentially the same as those in Lillie. In January 2017, the Judicial Panel on Multidistrict Litigation transferred the proceeding to the Northern District of Texas and the Stanford MDL. During February 2017, SEI filed its response to the Complaint and in March 2017 the District Court for the Northern District of Texas approved the stipulated dismissal of all claims in this complaint predicated on Section 712(D) or Section 714(A) of the Louisiana Securities Law. Another one of the cases, filed in the 23rd Judicial District Court for the Parish of Ascension, also was removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas and the Stanford MDL. The schedule for responding to that Complaint has not yet been established. The plaintiffs in two of the cases remaining in the Parish of East Baton Rouge have granted SEI and SPTC indefinite extensions to respond to the petitions. In the two additional cases, filed in East Baton Rouge and brought by the same counsel who filed the Lillie action, virtually all of the litigation to date has involved motions practice and appellate litigation regarding the existence of federal subjection matter jurisdiction under the federal Securities Litigation Uniform Standards Act (SLUSA). After the matter was removed to the United States District Court for the Northern District of Texas, that court dismissed the action under SLUSA. The Court of Appeals for the Fifth Circuit reversed that order, and the Supreme Court of the United States affirmed the Court of Appeals judgment on February 26, 2014. The matter was remanded to state court and no material activity has taken place since that date. SEI Investments said, "While the outcome of this litigation remains uncertain, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. Because of uncertainty in the make-up of the Lillie class, the specific theories of liability that may survive a motion for summary judgment or other dispositive motion, the relative lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the foregoing lawsuits." SEI Investments Company a global provider of investment processing, investment management and investment operations platforms. The company helps corporations, financial institutions, financial advisors and ultra-high-net-worth families create and manage wealth by providing comprehensive, innovative, investment and investment-business platforms. The company is based in Oaks, Pennsylvania. MDL 2179: Court Denies Bid for Supersedeas Bond ------------------------------------------------ The United States District Court for the Eastern District of Louisiana denied multiple Motions to Require Immediate Payment or a Supersedeas Bond in the case captioned In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, Section J. This Document Relates to: Nos. 12-970 AND, 18- 435, 17-16366, 17-16241, 17-17789, 17-16248, 17-16266, 17-16245, 17-17790, MDL No. 2179 (E.D. La.). Movants are eight claimants in the Economic and Property Damages Settlement, which is administered by the Court Supervised Settlement Program (CSSP). Since at least July 2015, the CSSP's practice has been to withhold paying a claim until all appeals, including appeals to the Fifth Circuit, are fully resolved. Of greater concern, however, are the practical problems that would likely arise if the Court were to begin requiring BP to post a supersedeas bond for each claim for which BP desires to stay payment pending appeal. Given the rate of appeals, BP's apparent solvency, and its previously expressed concerns about the ability to recoup payments should it prevail on appeal, it seems safe to assume that if the Court accepted Movants' position and applied it to all pending and future discretionary review appeals, the Court would be inundated with motions by BP requesting the Court to approve bonds and stay payments, which, of course, the Court would have to review and decide. To the extent that the real motivation behind the Movants' motions is a belief that BP's appeals are frivolous and meant only to cause delay, as opposed to a concern that BP will be unable to satisfy the Movants' claims following an unsuccessful appeal, then Fed. R. App. P. 38 is likely the proper tool to address this concern, not Fed. R. Civ. P. 62. The Settlement is already guaranteed by BPNCA and BP p.l.c. should BPXP and BPAPC default on their obligations; BP America's Finance Director and Controller has declared under penalty of perjury that all four of these BP entities are financially sound and not at risk of becoming insolvent in the foreseeable future; the Court has especially strong and flexible managerial power in this highly complex litigation; for nearly three years the CSSP's practice has been to withhold payment on a claim until all appeals are fully exhausted; a number of practical problems would likely arise should the Court require BP to post a supersedeas bond in order to stay payment pending appeal; and to the extent Movants' real concern is that BP is filing frivolous appeals, then Fed. R. App. P. 38 appears to be the appropriate mechanism for addressing this concern. A full-text copy of the District Court's March 29, 2018 Order and Reasons is available at https://tinyurl.com/yck5kqgx from Leagle.com. Plaintiff, Plaintiff, represented by James P. Roy -- jimr@wrightroy.com -- Domengeaux -- john Wright, Roy & Edwards & Stephen J. Herman -- sherman@hhklawfirm.com -- Herman, Herman & Katz, LLC. Marine Spill Response Corporation, Dispersant defendant, Defendant, represented by Alan Mark Weigel -- aweigel@blankrome.com -- Blank Rome LLP. Airborne Support, Inc., Dispersant defendant & Airborne Support International Inc, Dispersant defendant, Defendants, represented by Francis Xavier Neuner, Jr. -- fneuner@neunerpate.com -- NeunerPate, Ben Louis Mayeaux, NeunerPate, and Jed M. Mestayer, NeunerPate. MDL 2827: "Burton" Class Suit Transferred to N.D. Ca. ----------------------------------------------------- The class action lawsuit filed on December 28, 2017 captioned Kim Burton and William Ellis, on behalf of themselves and those similarly situated in Missouri v. Apple Inc., Case No. 2:17-cv- 04257 was transferred on April 19, 2018 from the U.S. Distict Court for the Western District of Missouri to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 5:18-cv-02323-EJD to the proceeding. The Case is consolidated in the multidistrict litigation MDL No. 2827. According to an order entered by the United States Judicial Panel on Multidistrict Litigation, it appears that the actions in the litigation involve questions of fact that are common to the actions previously transferred to the Northern District of California and assigned to Judge Edward J. Davila. The lead case is 5:18-md-02827-EJD. The case asserts product-liability claims. Apple Inc. owns and operates a technology company headquartered in Cupertino, California. [BN] The Plaintiff is represented by: Bradford B. Lear, Esq. Todd C. Werts, Esq. LEAR & WERTS, LLP 2003 W. Broadway, Ste. 107 Columbia, MO 65203 Telephone: (573) 875-1991 Facsimile: (573) 875-1985 E-mail: lear@learwerts.com werts@learwerts.com The Defendant is represented by: Jordan T. Ault, Esq. HUSCH BLACKWELL LLP P. O. Box 1251 235 E. High St. Jefferson City, MO 65102 Telephone: (573) 761-1123 Facsimile: (573) 634-7854 E-mail: jordan.ault@huschblackwell.com - and - Matthew D. Knepper, Esq. HUSCH BLACKWELL LLP 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Telephone: (314) 480-1500 Facsimile: (314) 480-1505 E-mail: matt.knepper@huschblackwell.com MDL 2828: United Food Suit Transferred to Oregon ------------------------------------------------ The class action lawsuit filed on January 26, 2018 styled United Food and Commercial Workers International Union Local 1500, individually and on behalf of all others similarly situated v. Intel Corporation, Case No. 2:18-cv-00574 was transferred from the U.S. District Court for the Eastern District of New York to the U.S. District Court for the District of Oregon. The District Court Clerk assigned 3:18-cv-00669-SI to the proceeding. The case is being consolidated with MDL No: 2828 in re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on February 27, 2018. These cases concern the sale and marketing of Intel computer chips and CPUs. Headquartered at 2200 Mission College Boulevard, Santa Clara, California, Intel Corporation designs, manufactures, distributes, and sells computer products worldwide. [BN] The Plaintiff is represented by: Michael P. Canty, Esq. LABATON SUCHAROW 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: mcanty@labaton.com MDL 2828: "Ferrer" Class Suit Transferred to Oregon --------------------------------------------------- The class action lawsuit filed on February 6, 2018 entitled Louisa Ferrer, on behalf of herself and all others similarly situated v. Intel Corporation, Case No. 5:18-cv-00799 was transferred on April 20, 2018 from the U.S. District Court for the Northern District of California to the U.S. District Court for the District of Oregon. The District Court Clerk assigned Case No. 3:18-cv-00697-SI to the proceeding. The case is consolidated in the multidistrict litigation titled In re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation, MDL No. 2828. According to an order entered by the United States Judicial Panel on Multidistrict Litigation, it appears that the actions in the litigation involve questions of fact that are common to the actions previously transferred to the Northern District of California and assigned to Judge Michael H. Simon. Headquartered at 2200 Mission College Boulevard, Santa Clara, California, Intel Corporation designs, manufactures, distributes, and sells computer products worldwide. [BN] The Plaintiff is represented by: Gayle Meryl Blatt, Esq. Alyssa M. Williams, Esq. Angela Jae Chun, Esq. David S. Casey Jr., Esq. Jeremy Keith Robinson, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: webcontact@cglaw.com The Defendant is represented by: Miriam Kim, Esq. Allison Marie Day, Esq. MUNGER, TOLLES & OLSON 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4041 Facsimile: (415) 512-4077 E-mail: Miriam.Kim@mto.com allison.day@mto.com MDL 2828: "Mechri" Class Suit Transferred to Oregon --------------------------------------------------- The class action lawsuit filed on January 17, 2018 entitled Miriam Mechri and Salma Mathlouthi, on behalf of herself and all others similarly situated v. Intel Corporation, Case No. 5:18-cv- 00379 was transferred on April 20, 2018 from the U.S. District Court for the Northern District of California to the U.S. District Court for the District of Oregon. The District Court Clerk assigned Case No. 3:18-cv-00693-SI to the proceeding. The case is consolidated in the multidistrict litigation titled In re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation, MDL No. 2828. According to an order entered by the United States Judicial Panel on Multidistrict Litigation, it appears that the actions in the litigation involve questions of fact that are common to the actions previously transferred to the Northern District of California and assigned to Judge Michael H. Simon. Headquartered at 2200 Mission College Boulevard, Santa Clara, California, Intel Corporation designs, manufactures, distributes, and sells computer products worldwide. [BN] The Plaintiff is represented by: David Eldridge Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Telephone: (310) 446-6652 Facsimile: (310) 210-0605 E-mail: dbower@monteverdelaw.com MDL 2828: "Park" Class Suit Transferred to Oregon ------------------------------------------------- The class action lawsuit filed on February 3, 2018 entitled Gloria K. Park, on behalf of herself and all others similarly situated v. Intel Corporation, Case No. 5:18-cv-00742 was transferred on April 20, 2018 from the U.S. District Court for the Northern District of California to the U.S. District Court for the District of Oregon. The District Court Clerk assigned Case No. 3:18-cv-00696-SI to the proceeding. The case is consolidated in the multidistrict litigation titled In re: Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation, MDL No. 2828. According to an order entered by the United States Judicial Panel on Multidistrict Litigation, it appears that the actions in the litigation involve questions of fact that are common to the actions previously transferred to the Northern District of California and assigned to Judge Michael H. Simon. The Plaintiff asserts product-liability claims. Headquartered at 2200 Mission College Boulevard, Santa Clara, California, Intel Corporation designs, manufactures, distributes, and sells computer products worldwide. [BN] The Plaintiff is represented by: Rosanne L. Mah, Esq. FINKELSTEIN THOMPSON 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 E-mail: rlm@classlitigation.com - and - Gordon M. Fauth Jr., Esq. LITIGATION LAW GROUP 1801 Clement Av., Suite 101 Alameda, CA 94501 Telephone: (510) 238-9610 Facsimile: (510) 337-1431 E-mail: gmf@classlitigation.com MECHEL BLUESTONE: Justice Highwall Workers Included in Class ------------------------------------------------------------ The United States District Court for the Southern District of West Virginia, Beckley Division, granted in part and denied in part Plaintiffs' Motion to Approve Class Membership and Class Notice in the case captioned DAVID JORDAN, Plaintiff, v. MECHEL BLUESTONE, INC. and DYNAMIC ENERGY, INC., Defendants, Civil Action No. 5:16-cv-04413 (S.D.W.V.). The Plaintiff alleged that the Defendants, Mechel Bluestone, Inc., and Dynamic Energy, Inc., doing business at its Coal Mountain Surface Mine No. 1 in Wyoming County, West Virginia, violated the Worker Adjustment and Retraining Notification (WARN) Act by failing to provide the sixty-day notice to employees of a pending layoff. The Plaintiff argues that the Justice Highwall employees should be included as members of the class. He asserts that the class was clearly intended to include the Justice Highwall employees from the filing of the complaint, and that this was clearly expressed. The Plaintiff contends that the Justice Highwall employees who worked at Coal Mountain are part of a single site of employment that is expressly named and defined in the complaint and briefing. The Plaintiff argues that the certain Justice Highwall employees who should be included in the class were employed and directly supervised by the employees of Dynamic and were simultaneously laid off with the other Coal Mountain employees, therefore subjecting them to the de facto control of the Defendants. According to the Plaintiff, the Justice Highwall employees were employed at a single site of employment at Coal Mountain and were laid off in the reduction of force at issue here and are, therefore, eligible to be members of the class action. The Defendants respond that the Justice Highwall employees should not be included as putative class members. The Defendants first argue that Justice Highwall is not a party to this proceeding, and there is nothing in the record suggesting that Justice Highwall meets the definition of an 'employer' for purposes of the WARN Act, thus excluding the Justice Highwall employees from the class. They further contend that the Mediation Agreement does not mention Justice Highwall, and that not all of Justice Highwall's employees worked at the Coal Mountain site. Given these circumstances, the Defendants assert that the Plaintiff has failed to appropriately state a cause of action against Justice Highwall under the WARN Act, and its employees should be excluded as members of the class. The Court finds that the Justice Highwall employees should be included in the class. The Plaintiffs have appropriately proven, and the Defendants do not dispute, that the Coal Mountain Surface Mine No. 1 was a single site of employment for purposes of the WARN Act. Further, affidavits of Justice Highwall employees who worked at Coal Mountain submitted by the Plaintiffs indicate that those employees were terminated by Dynamic Energy along with the rest of the Dynamic employees at issue. Although the Defendants argue that the Plaintiffs failed to allege this in their complaint, the complaint specifically states that all of the employees at the Coal Mountain Surface Mine No. 1 site including those that the defendants referred to as employees of 'Dynamic Energy Justice Highwall Miner, were engaged in a common operational purpose, under common management, used common equipment, and were under Bluestone's de facto and de jure management, maintenance, and control. Given this allegation in the complaint, and given that there is no dispute that Coal Mountain was a single site of employment, the Court finds that the Justice Highwall employees included in the layoff at the Coal Mountain site should be included in the class and are entitled to full relief under the terms of the settlement agreement. Further, the Court finds that the individuals with whom the Defendants reached a settlement prior to class certification are not entitled to further compensation under the settlement agreement. The Plaintiff's Motion to Approve Class Membership and Class Notice be granted in part and denied in part. Specifically, the Court orders that the Plaintiff's motion be granted insofar as it seeks to include the Dynamic Energy-Justice Highwall Miner employees as part of the class for a total of 118 individual minors named by the Plaintiff, and denied insofar as it seeks further damages for those miners who entered into settlement agreements with the Defendant prior to class certification. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ybcp3lbg from Leagle.com. David Jordan, individually and on behalf of all others similarly situated, Plaintiff, represented by Bren J. Pomponio, MOUNTAIN STATE JUSTICE, INC. & Samuel Brown Petsonk, MOUNTAIN STATE JUSTICE, INC. Mechel Bluestone, Inc. & Dynamic Energy, Inc., Defendants, represented by Andrew L. Ellis, WOOTON WOOTON & DAVIS, John F. Hussell, IV, WOOTON WOOTON & DAVIS & John D. Wooton, Jr., THE WOOTON LAW FIRM. METHODIST DALLAS: Meal Break Suit Granted Class Action Status ------------------------------------------------------------- Dawn Geske, writing for SE Texas Record, reports that a nurse has been granted the right to a conditional class action suit against Methodist Dallas Medical Center Auxiliary, et al. over interrupted meal breaks that allegedly resulted in overtime work without pay. The nurse, Robert Straka, filed a lawsuit against Methodist claiming its meal break policy did not follow the Fair Labor Standards Act (FLSA) regarding overtime payments. According to the April 3 opinion filed by Dallas Division of the Northern District of Texas Judge Jane J. Boyle, Mr. Straka claimed he, along with several other nurses, were not paid for a 30-minute meal break when they worked a 6.5-hour shift. According to the opinion, while the nurses were not required to clock out for their meal breaks, Methodist Dallas Medical Center Auxiliary employed both an automatic deduction system and an attestation system for tracking the meal periods. Both systems were designed to allow the nurses to report whether they had received an uninterrupted meal break, which would be deducted from their work hours. According to Mr. Straka, his meal breaks were interrupted on a constant basis and Methodist Dallas Medical Center's policies for this break time violate the FLSA. In his suit, Mr. Straka claims he is not alone in the FLSA violations and that some 4,500 nurses are affected by the policies at several locations in the Methodist system. Methodist argued that all the nurses are not "similarly situated" as there are several differences among departments that they work in, the opinion states. Boyle ruled in favor of Mr. Straka with the condition that only Methodist's Dallas, Charlton and Mansfield health care facilities be considered for the class action suit. Methodist was also ordered to provide employee information of all nurses that could be considered class members and affected by the suit. A 60-day opt-in period would follow the receipt of the employees' information, allowing all affected nurses to opt-in to the suit with written consent. According to the court opinion, Mr. Straka already had seven nurses' consent to be included as class members in the suit. [GN] MICROSEMI CORP: Multiple Merger-Related Suits Pending in Calif. --------------------------------------------------------------- Microsemi Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company is facing multiple class action suits in California related to the merger among the company, Microchip Technology Incorporated, and Maple Acquisition Corporation. The Company said, "Subsequent to the filing on April 19, 2018 of the company's definitive proxy statement in connection with the Agreement and Plan of Merger (the "Merger Agreement") dated March 1, 2018 by and among Microsemi, Microchip Technology Incorporated, a Delaware corporation ("Microchip"), and Maple Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Microchip ("Merger Subsidiary"), pursuant to which, among other things, Microchip will acquire Microsemi through a merger (the "Merger"), various putative class action complaints have been filed by purported stockholders of the Company against Microsemi and our current directors." As of April 26, 2018, the company have received the following complaints, each filed in the United States District Court for the Central District of California: Michael Rubin v. Microsemi, Case No. 8:18-cv-00653, filed April 20, 2018; Robert Johnson v. Microsemi, Case No. 8:18-cv-00698, filed April 24, 2018; and Jordan Rosenblatt v. Microsemi, Case No. 8:18-cv-00724 filed April 26, 2018. The complaints purport to be brought on behalf of all similarly situated stockholders of Microsemi and generally allege violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with our definitive proxy statement. The complaints seek to enjoin the vote on and closing of the Merger, rescission, damages, and attorneys' and experts' fees and costs. Microsemi said, "While it is too early to predict the outcome of this litigation, we believe that the allegations in these actions are without merit. Additional lawsuits arising out of or relating to the Merger Agreement or the Merger may be filed in the future." Microsemi Corporation is a designer, manufacturer and marketer of high-performance analog and mixed-signal semiconductor solutions differentiated by power, security, reliability and performance. The company offers a comprehensive portfolio of semiconductor and system solutions for aerospace & defense, communications, data center and industrial markets. The company is based in Aliso Viejo, California. MICROSOFT CORP: Court Grants Arbitration in "Maher" Suit -------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion to Compel Arbitration in the case captioned JAMES MAHER, individually and on behalf of other persons similarly situated, Plaintiff, v. MICROSOFT CORPORATION, Defendant, Case No. 17-CV-00753, (N.D. Ill.). Microsoft has filed a motion to compel Maher to arbitrate his individual claims under its Master Services Agreement (MSA). The amended complaint describes Xbox Live as an online multiplayer gaming and digital media delivery service. The plaintiff, James Maher, claims that he and other similarly situated individuals he would like to represent in a class action, do not get their money's worth from Xbox Live because Microsoft cuts them off the service without refunding them for periods lasting between one and twenty-one days. Microsoft has filed a motion to compel Maher to arbitrate his individual claims under its Master Services Agreement (MSA). Microsoft's MSA replaced the separate terms of service for Xbox Live. The MSA's first page notifies the reader that it includes a Binding Arbitration and Class Action Waiver. The Court concluded that when Maher clicked, tapped, or otherwise selected "I Accept," he assented to the MSA three times, twice before and once after he bought the prepaid subscription card on which he sues. Courts around the country have recognized that this type of electronic 'click' can suffice to signify the acceptance of a contract. Microsoft raised this point in its supplemental brief and Maher's supplemental reply does not develop an argument that the Xbox Live screens gave him insufficient notice of the MSA's terms. Accordingly, that Maher assented to the MSA must be treated as undisputed. The court can assume for the sake of argument that Maher's Best Buy purchase and even his son's one-year subscription amount to separate contracts without arbitration clauses. That does not change the legal effect of assenting to the MSA in a third contract; it just raises a question about the scope of the MSA's arbitration clause and whether it reaches the particular dispute, however it is properly framed. The claims here fall within the scope of the broad language of the MSA's arbitration clause. The Seventh Circuit reads related to language in arbitration clauses broadly. Maher characterizes his claims as arising out of his purchase of the prepaid subscription card. He draws a semantic distinction. The substance of Maher's factual allegations concern interruptions in Xbox Live services provided by Microsoft; it is for those interruptions and associated nondisclosure about those service interruptions that he wishes to be compensated. To the degree these claims are ambiguous about whether the policies Maher challenges are unique to users of prepaid cards, that ambiguity must be resolved in favor of arbitration. A full-text copy of the District Court's March 29, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7rjsott from Leagle.com. James Maher, individually and on behalf of other persons similarly situated, Plaintiff, represented by James X. Bormes -- jxbormes@bormeslaw.com -- Law Office of James X. Bormes, Catherine P. Sons -- cpsons@bormeslaw.com -- Law Office of James X. Bormes, P.C. & Kasif Khowaja -- kasif@khowajalaw.com -- The Khowaja Law, LLC. Microsoft Corporation, Defendant, represented by Amy Yongmee Cho -- acho@shb.com -- Shook, Hardy & Bacon LLP, Gary M. Miller gmiller@shb.com -- Shook, Hardy & Bacon LLP, Todd Clark Jacobs -- tjacobs@bradleyriley.com -- Bradley Riley Jacobs PC, Rebecca Francis -- rebeccafrancis@dwt.com -- Davis Wright Tremaine Llp, pro hac vice & Stephen M. Rummage -- steverummage@dwt.com -- DAVIS WRIGHT TREMAINE LLP, pro hac vice. MICROSOFT CORP: Class Suit Underway in British Columbia ------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that a six-month oral hearing is expected to begin in summer 2018 in a class action suit filed in British Columbia. Antitrust and unfair competition class action lawsuits were filed against us in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010. The trial of the British Columbia action commenced in May 2016. The plaintiffs filed their case in chief in August 2016, setting out claims made, authorities, and evidence in support of their claims. A six-month oral hearing is expected to begin in summer 2018, consisting of cross examination on witness affidavits. The Ontario and Quebec cases are inactive. No further updates were provided in the Company's SEC report. Microsoft is a technology company whose mission is to empower every person and every organization on the planet to achieve more. The company strives to create local opportunity, growth, and impact in every country around the world. The company is based in Redmond, Washington. MICROSOFT CORP: Summary Judgment Filed in Gender Bias Suit ---------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company has filed a motion for summary judgment with respect to the named plaintiffs. 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. Microsoft filed a motion for summary judgment with respect to the named plaintiffs in March 2018. Microsoft is a technology company whose mission is to empower every person and every organization on the planet to achieve more. The company strives to create local opportunity, growth, and impact in every country around the world. The company is based in Redmond, Washington. MSR 804: Families of EgyptAir Crash Victims File Suit ----------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that EgyptAir Flight 804 crashed on May 19, 2016, killing all 66 people aboard between Paris and Cairo, partly because an Apple computer overheated and caught fire in the cockpit, families say in a lawsuit against Apple, Airbus, GE Aviation Systems, Honeywell International, et al., in L.A. Superior Court. NEW LINK: Court Dismisses "Nguyen" Securities Fraud Suit -------------------------------------------------------- The United States District Court for the Southern District of New York granted Defendant's Motion to Dismiss the Amended Class Action Complaint in the securities fraud action captioned MICHAEL NGUYEN and KELLY NGUYEN, individually and on behalf of all others similarly situated, Plaintiffs, v. NEW LINK GENETICS CORPORATION, et al., Defendants, No. 16cv3545 (S.D.N.Y.). The case arises from a failed clinical trial designed to test the efficacy of a pancreatic cancer immunotherapy. The central issue is whether NewLink Genetics Corporation's (NewLink) clinical trial was built on faulty assumptions, outdated clinical studies, and a compromised patient pool for the purpose of misleading investors into believing that NewLink's immunotherapy product would be a commercial success. Here, Link cited the RTOG-9704 trial which was 18.6 months if you include all the patients in that trial, as support for his opinion that Defendants' estimates remain[ed] the same as they've had all along, and that no fundamental change has occurred in the United States that is suddenly going to jump the survival of pancreatic cancer patients in the control arm by five or six months. They don't believe that. In a similar vein, Vahanian relied on a Johns Hopkins Group study which demonstrated that for the last three decades the survival expectancy of pancreatic cancer was 19.2 months, to formulate his opinion that the estimated survival rate of Control Group participants was in the low 20s. None of the statements referenced in the Complaint suggest that either Link or Vahanian lacked a sincere opinion about the estimated survival rates; to the contrary, the studies they relied on provided a reasonable foundation from which they developed their estimates regarding the Control Group's overall survival. Phase 2 Statements The Plaintiffs assert that the Defendants misrepresented Phase 2 data in primarily two ways. First, they contend that the Defendants' interpretation of Phase 2 data namely, that only one patient in the high dose group had died improperly concluded that Phase 2 achieved efficacy. Second, the Defendants' statement that they initiated Phase 3 based on encouraging Phase 2 data that suggested improvement in both disease-free and overall survival is misleading, the Plaintiffs argue, because Phase 2 data did not demonstrate such metrics. The Defendants' statements regarding Phase 2 results are non- actionable opinions. Simply put, the Defendants interpreted Phase 2 data in a positive light, finding that starting Phase 3 was justified. The Complaint also does not allege that Link or Vahanian disbelieved their opinions, or withheld facts that they knew contradicted their statements. At the time "the statement was made, NewLink had moved on to Phase 3 of the clinical trials a step that can only be taken after there have been positive Phase 2 results sufficient to satisfy both business and regulatory interests." There is thus no reason to think nor is one alleged that the Defendants' statements were not honestly believed. The Complaint alleges that the Defendants' statements about HyperAcute Pancreas's commercial viability were false and misleading. The Plaintiffs assert that the Defendants misleadingly conveyed to investors that they expected the drug to be approved for "marketing and commercialization" despite interim results casting doubt on whether HyperAcute Pancreas would be approved and marketed. The Court finds that the Defendants' statements amount to nothing more than an expression about their calculated business decision to forge ahead on developing what they believed was a promising drug. Against the clear cautionary language outlining the risks attendant to a failed clinical trial, Defendants made it clear that they were making very large strategic investments in expanding their manufacturing capabilities strategies for commercialization and marketing. These are merely investments NewLink made in anticipation of HyperAcute Pancreas's success. Although this business decision did not yield the result NewLink and its investors hoped for, such an outcome does not suddenly make Defendants' previous statements of present or historical fact any less true. The Plaintiffs cite Link and Vahanian's Class Period stock sales as evidence of their motive to commit fraud. That the Complaint does not tether every single trade to a fraud- related event is not fatal to an inference of scienter. The Plaintiffs sufficiently allege that Link began trading two weeks after NewLink announced it had completed patient enrolment during a period in which the stock price was rising and the market was optimistic about the trial's prospective success. The Plaintiffs also note that Link stopped trading altogether after his April 7, 2016 trade about a month before the disclosure of the final results tanked the stock price. These events are sufficiently close enough in time to shroud Link's actions in suspicion, especially in view of his decision to amend and then terminate his trading plan. The Plaintiffs' allegations regarding the Defendants' stock sales and executive compensation establish a basis from which this Court can infer a strong inference of scienter underlying the Defendants' false and misleading statements about patient enrollment. Accordingly, because the Complaint pleads facts rendering an inference of scienter at least as likely as any plausible opposing inference through the Defendants' motive and opportunity to commit fraud, Tellabs, this Court need not consider the additional circumstantial evidence of conscious misbehavior or recklessness. Nevertheless, it is worth noting that at least with respect to the Defendants' representations regarding patient enrollment, conscious misbehavior or recklessness can be established by showing, inter alia, that defendants knew facts or had access to information suggesting that their announcement touting the achievement of Phase 3's first milestone was not accurate. The Complaint sufficiently alleges Link and Vahanian's responsibilities and incentives associated with completing patient enrollment. Coupled with the Confidential Witness's observations about Vahanian's push to complete patient enrollment and the Company's inability to recruit qualified patients, the Complaint sufficiently alleges strong circumstantial evidence of scienter. In view of the conclusory allegations tying the Plaintiffs' economic loss to the disclosure of the fraud, the Complaint fails to sufficiently plead loss causation. Loss causation is the causal connection between the material misrepresentation and the loss. To plead loss causation, a plaintiff must link the defendant's purported material misstatements or omissions with the harm ultimately suffered. The Complaint in its current form alleges that in May 2016, the market learned of the fraud through a press release announcing that Phase 3 did not achieve its primary endpoint, and that the overall survival rate of the Control Group exceeded that of the Treatment Group by three months. The Complaint's loss causation allegations are predicated on a corrective disclosure theory that the available public information regarding the company's financial condition was corrected, and the market reacted negatively to the corrective disclosure. Nor have the Plaintiffs sufficiently alleged loss causation under a materialization of risk theory. Loss causation alternatively may be alleged by showing that the loss was foreseeable and caused by the materialization of the risk concealed by the fraudulent statement. Thus, where the alleged misstatement conceals a condition or event which then occurs and causes the plaintiff's loss, a plaintiff may plead that it is the materialization of the undisclosed condition or event that causes the loss. Here, though news of Phase 3's failure caused the loss, the Defendants repeatedly cautioned investors about a litany of risk the inability to achieve the trial's primary endpoint, obtain FDA approval, or commercialize the drug that could lead to a significant drop in stock value. In other words, the risk that materialized was disclosed by the Defendants and known by investors. In view of the Court's dismissal of the Plaintiffs' Section 10(b) claim, their Section 20(a) claim is also dismissed. The Defendants' motion to dismiss is granted and the Complaint is dismissed without prejudice. A full-text copy of the District Court's March 29, 2018 Opinion and Order is available at https://tinyurl.com/y8rqpct4 from Leagle.com. Michael Nguyen, Individually and on behalf of all others similarly situated & Kelly Nguyen, Individually and on behalf of all others similarly situated, Lead Plaintiffs, represented by Kim Elaine Miller, Kahn Swick & Foti, LLC. NewLink Genetics Corporation, Charles J. Link, Jr. & Nicholas N. Vahanian, Defendants, represented by Patrick Gibbs, Cooley LLP, David Hillel Kupfer, Cooley LLP & Sarah Malke Lightdale, Cooley LLP. NEW YORK: Dismissal of Dormant Commerce Clause Claims Affirmed -------------------------------------------------------------- The questions presented before the United States Court of Appeals, Second Circuit, are: (1) whether the District Court correctly dismissed the Dormant Commerce Clause claims of American Trucking Associations, Inc. and its fellow plaintiffs challenging the authority of New York State Thruway Authority to allocate surplus highway toll revenues to New York's canal system; and (2) whether the District Court properly determined that defendants did not waive the argument that Congress authorized them to depart from the Dormant Commerce Clause. The Plaintiffs allege that the Thruway Authority violated the Dormant Commerce Clause when it used surplus revenue from highway tolls to fund New York State's Canal System (Canal System). The District Court dismissed this claim, finding that Congress specifically authorized the Thruway Authority to allocate highway tolls to canal uses. ATA further claims that the District Court abused its discretion in reaching the question of congressional authorization because the Thruway Authority did not discover or raise this argument until several years into the litigation. The Thruway Authority's Tolling Powers The New York State Thruway Authority is a public benefit corporation, created in 1950 by the New York State Legislature to construct and operate transportation facilities. Since its establishment, it has operated the Governor Thomas E. Dewey Thruway System (the Thruway), a 570-mile cross-state highway that is a major artery of interstate commerce in the Northeast United States and a critical route for commercial truckers serving the region. The Canal System The rise of the Interstate Highway System, a marvel of American infrastructure, cemented the decline of perhaps the most awesome earlier such marvel: the New York Canal System. That system is a network of waterways that stretches across upstate New York, including the Erie, Oswego, Champlain, Cayuga, and Seneca Canals. In the nineteenth century, it served as the model for canal- building throughout the world and fuelled the unprecedented development and prosperity that came not alone to New York State but to the whole country. In the words of Senator Daniel Patrick Moynihan of New York then chairman of the Water Resources, Transportation, and Infrastructure Subcommittee of the Senate Committee on Environment and Public Works, and the principal architect of ISTEA, the Canal System is what has made America great. Whether Congress Authorized the Thruway Authority to Allocate Excess Highway Tolls to the Canal System ATA contends that Congress did not evince an unmistakably clear intent to authorize the Thruway Authority to allocate excess revenues from highway tolls to the Canal System. The Thruway Authority, on the other hand, argues that Congress did expressly authorize it to do so. The Court agree with the Thruway Authority. Here, too, ATA makes a critical admission. It acknowledges that the District Court's conclusion that nothing in ISTEA caps the amount of excess toll revenue that can be used to support transportation enhancement activities, such as canals, is perhaps true as a literal matter. Inasmuch as ATA concedes that Congress authorized the Thruway Authority to allocate excess toll revenues for canal purposes, and likewise concedes that it is "true as a literal matter that ISTEA contains no language limiting the amount of revenue for allocation, its argument necessarily relies merely on context, not text. The text is clear: Congress manifested its unambiguous intent to authorize the Thruway Authority to allocate excess toll funds to the Canal System. Although ISTEA does not expressly invoke the Commerce Clause or state its intent to abrogate Dormant Commerce Clause limitations, it need not do so if congressional intent is unmistakable, as it is here. Whether the Thruway Authority Forfeited Its Argument That Congress Authorized It to Depart from the Commerce Clause ATA argues that the Thruway Authority failed to raise its argument regarding congressional authorization for more than three years after ATA filed its complaint and for almost six months after the District Court granted partial summary judgment on liability in favor of ATA. That failure, according to ATA, constitutes forfeiture. Yet ATA concedes that, regardless of whether the Thruway Authority indeed forfeited its argument, the District Court had discretion to reach the merits to correct a clear error. Congress's intent in ISTEA section 1012(e) to exempt the Thruway Authority from the Dormant Commerce Clause was unmistakably clear. Thus, regardless of whether the District Court relied on the proper standard for forfeiture, it had discretion to reach the merits of the Thruway Authority's defense. In summary, the Second Circuit holds as follows: (1) Congress evinced an unmistakably clear intent to authorize the Thruway Authority to depart from the strictures of the Dormant Commerce Clause by allocating surplus highway toll revenues to New York's Canal System; (2) Congress placed no limits on the amount of such surplus highway toll revenue that the Thruway Authority could allocate to the Canal System; (3) The District Court correctly granted defendants' motion to dismiss on the basis of Congressional authorization and vacated its previous order granting plaintiffs' motion for partial summary judgment; and (4) The District Court had discretion to reach the merits of the Thruway Authority's defense that Congress had authorized it to devote surplus highway toll revenues to the Canal System. The appeals case is AMERICAN TRUCKING ASSOCIATIONS, INC., WADHAMS ENTERPRISES, INC., LIGHTNING EXPRESS DELIVERY SERVICE INC., WARD TRANSPORT & LOGISTICS CORP., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, AMERICAN BUS ASSOCIATION, DATTCO, INC., STARR TRANSIT CO., INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants, v. NEW YORK STATE THRUWAY AUTHORITY, NEW YORK STATE CANAL CORPORATION, THOMAS J. MADISON, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE THRUWAY AUTHORITY, HOWARD MILSTEIN, IN HIS OFFICIAL CAPACITY AS CHAIR OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARDS OF DIRECTORS, DONNA J. LUH, IN HER OFFICIAL CAPACITY AS VICE-CHAIR OF NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARDS OF DIRECTORS, E. VIRGIL CONWAY, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, RICHARD N. SIMBERG, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, BRANDON R. SALL, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, J. RICE DONALD, JR., IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, JOSE HOLGUIN- VERAS, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARD OF DIRECTORS, BILL FINCH, IN HIS OFFICIAL CAPACITY AS ACTING EXECUTIVE DIRECTOR OF THE NEW YORK STATE THRUWAY AUTHORITY, JOANNE M. MAHONEY, IN HER OFFICIAL CAPACITY AS CHAIR OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARDS OF DIRECTORS, ROBERT L. MEGNA, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARDS OF DIRECTORS, STEPHEN M. SALAND, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NEW YORK STATE THRUWAY AUTHORITY/CANAL CORPORATION BOARDS OF DIRECTORS, Defendants-Appellees, Nos. 17-737 (L), 17-873 (Con) (2ND Cir.). A full-text copy of the Second Circuit's March 29, 2018 Opinion is available at https://tinyurl.com/yc8ya55q from Leagle.com. CHARLES A. ROTHFELD, Evan M. Tager -- etager@mayerbrown.com -- Matthew A. Waring -- mwaring@mayerbrown.com -- Mayer Brown LLP, Washington, DC; Richard Pianka -- rpianka@trucking.org -- ATA Litigation Center, Arlington, VA, for Plaintiffs-Appellants. ANDREW W. AMEND, Senior Assistant Solicitor General, of counsel, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General, State of New York, for Defendants-Appellees. NEW YORK: Averts Female Crossing Guards' Class Action ----------------------------------------------------- Vin Gurrieri, writing for Law360, reports that a New York federal judge closed the book on May 1 on a certified class action brought by female New York City school crossing guards alleging they were paid less than male traffic enforcement agents, finding the two positions are too dissimilar to warrant comparison. U.S. District Judge William Pauley awarded New York City summary judgment over hybrid class and collective action claims alleging that the city discriminated against thousands of mostly female school crossing guards employed by the New York Police Department. The case is styled Miller et al v. City of New York, Case No. 1:15-cv-07563 (S.D.N.Y.). The case is assigned to Judge William H. Pauley, III. The case was filed September 24, 2015. [GN] NEW YORK-PRESBYTERIAN: Faces "Picon" Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against New York- Presbyterian Hospitals. The case is styled as Yelitza Picon and on behalf of all other persons similarly situated, Plaintiff v. New York-Presbyterian Hospitals and New York-Presbyterian Healthcare Systems IPA, LLC, Defendants, Case No. 1:18-cv-04367 (S.D. N.Y., May 16, 2018). The NewYork-Presbyterian Hospital is a nonprofit university hospital in New York City affiliated with two Ivy League medical schools: Columbia University Vagelos College of Physicians and Surgeons and Weill Cornell Medical College.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Tel: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com NISSAN NORTH: Court Narrows Claims in Defective TCTS Suit --------------------------------------------------------- The United States District Court for the District of Massachusetts granted in part and denied in part Defendants' Motion to Dismiss the case captioned SARAH DUNCAN, RICHARD SILVER, ANTHONY WEISSENBURGER, JUDY WEISSENBURGER, KEVIN FRY, SHAUN COONEY, CLINTON STEWART AND MICHELLE LIM STEWART, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiffs, v. NISSAN NORTH AMERICA, INC., AND NISSAN MOTOR CO., LTD., Defendants, Civil Action No. 16-12120 (D. Mass.). The Plaintiffs, eight owners of cars manufactured by the Defendants who seek to represent others similarly situated, bring claims against the Defendants, Nissan North America, Inc., and Nissan Motor Company, based upon an alleged defective component in the cars. Their claims include counts for breach of contract; breach of the implied covenant of good faith and fair dealing; breach of an express warranty; breach of an implied warranty of merchantability; unjust enrichment; violations of the consumer protection statutes of Oregon, Colorado, Texas, Massachusetts, and North Carolina; and a violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2310(d)(1). The Defendants manufacture and sell or lease cars. Certain models of these cars, identified as the Class Vehicles, contain a defective Timing Chain Tensioning System (TCTS). As alleged, the defect in the TCTS causes the engine of the car to become damaged, necessitating expensive repairs, and potentially also posing a safety risk to the occupants of the car. The Defendants allegedly knew and should have known, at the time of sale or lease of the Class Vehicles, that the TCTS was defective. Breach of Express Warranty (Count VI) In the complaint, the Plaintiffs allege that they entered into either the Basic Warranty or as the Defendants point out, the warranty agreement is thus an agreement to provide repairs within certain time and mileage restrictions; not to remedy problems that become manifest within certain time and mileage restrictions, as the Plaintiffs contend. As the First Circuit observed, citing law from multiple jurisdictions, case law almost uniformly holds that time-limited warranties do not protect buyers against hidden defects defects that may exist before, but typically are not discovered until after, the expiration of the warranty period. The Plaintiffs do not make any argument based on the terms of the warranty to support their contention that the warranty explicitly covers problems made manifest within the warranty period. Thus, their contention that the repairs were covered expressly under the terms of the warranty fails. Unconscionability of the Warranty Limits The Plaintiffs contend that, because of the gross disparity in bargaining power between them and the Defendants, the lack of meaningful choice on the part of the Plaintiffs in determining those time limits, and the Defendants' knowledge and active concealment of the defect, the warranty limits are unconscionable. Although there is persuasive authority on both sides, the Court is inclined to side with the Plaintiffs. The Plaintiffs have pled a lack of meaningful choice over the terms of the warranty, a disparity of bargaining power, a purposeful limitation of the warranty period to exclude the defect and a defect known at the time of sale to the manufacturer but concealed from the purchaser. Moreover, the defect known at the time of sale to the manufacturer was not necessarily the kind of defect that all manufacturers would necessarily know by testing different components for failure rates. Rather, the complaint draws a distinction between components must be routinely replaced in an automobile, and thus are designed to be relatively inexpensive to identify and replace, and components that are expected to last the lifetime of the car, and thus may be quite expensive to replace, and alleges that the defective TCTS was in the latter category. In light of the UCC's instruction to take into account the general commercial background, and offer parties a reasonable opportunity to present evidence as to [the clause's] commercial setting, purpose, and effect, the Court finds that the Plaintiffs have sufficiently stated a claim that the durational limits in the express warranty are unconscionable, at least for the purposes of defeating a motion to dismiss. Implied Warranty of Merchantability (Count VII) The complaint also alleges a count of a breach of the implied warranty of merchantability. The Defendants contend that such a claim is barred by the statute of limitations. In Colorado, the statute of limitations is three years In Texas, Massachusetts, North Carolina and Oregon, the statute of limitations is four years. The Defendants argue that the action accrued at the time of sale, which for all Plaintiffs was more than four years prior to the filing of suit. Both of these cases are grounded in a California law imposing a duty to disclose safety-related risks and thus the non-disclosure of the defect itself may constitute an active concealment. The Plaintiffs make no argument that, under the applicable laws, the Defendants were under a duty to disclose the defect. Thus, the complaint does not plead facts sufficient to state a claim that the Defendants fraudulently concealed the TCTS defect, thereby tolling the statute of limitations on the claims for breach of the implied warranty of merchantability. Accordingly, this claim is time-barred and the Court allows the motion to dismiss Count VII. Violation of the Magnuson-Moss Warranty Act (Count X) The parties agree that the Magnuson-Moss Warranty Act count rises or falls with the express and implied warranty claims. Because the complaint pleads facts sufficient to state a claim for breach of express warranty, the Plaintiffs have stated a claim for a violation of the Magnuson-Moss Warranty Act. Breach of Contract (Count IX) The Plaintiffs allege that they entered into contracts and warranty agreements with the Defendants, and that the Defendants breached these agreements by providing Plaintiffs with cars that had defective TCTSs. At the pleading stage, however, mere redundancy between two separate counts is not a sufficient reason to dismiss a count of the complaint. While the Plaintiffs will not be entitled to double recovery on these claims, they need not elect under which theory they will proceed at this stage of the litigation. Accordingly, the Court declines to dismiss the breach of contract claim. Unjust Enrichment (Count VIII) The complaint pleads a count of unjust enrichment, on the theory that the Defendants' misrepresentations regarding the TCTS defect render it unjust for the Defendants to keep the benefit of not paying for the repairs that the Plaintiffs paid for to the TCTS. Although the Plaintiffs make no response to this argument, the Court notes that is it not uncommon for an unjust enrichment claim to proceed, in the alternative, with a breach of contract claim beyond the motion to dismiss stage. Accordingly, the Court declines to dismiss the unjust enrichment claim at this time. Violation of the Oregon Unlawful Trade Practices Act (Count I) The complaint alleges that the Defendants violated the Oregon Unlawful Trade Practices Act. The Defendants contend, in their motion to dismiss, that the claim under the Oregon Unlawful Trade Practices Act is barred by the statute of limitations, because the statute of limitations for that claim runs for one year after the discovery of the practice. The Plaintiffs' response to this argument is to refer back to their equitable tolling argument. But, for the same reasons that the equitable tolling argument failed with respect to the count for breach of the implied warranty of merchantability, that argument fails here as well. Violation of the Colorado Consumer Protection Act (Count II) The complaint alleges that the Defendants violated the Colorado Consumer Protection Act. The Defendants contend that the complaint fails plead facts sufficient to state a claim for relief under that Act because the complaint only alleges that the Defendants engaged in a failure to disclose material information, but does not describe the information that the Defendants failed to disclose with sufficient particularity. Since Plaintiffs make no particular response to this specific argument, the Court dismisses this claim for relief under the Colorado Consumer Protection Act. Violation of the Texas Deceptive Trade Practices Consumer Protection Act (Count III) The complaint alleges that the Defendants violated the Texas Deceptive Trade Practices Consumer Protection Act. The Defendants contend that the complaint fails to plead facts sufficient to state a claim for relief under that Act because that Act requires that the Plaintiffs allege that the Defendants failed to disclose the information regarding the TCTS defect with the intent to induce the Plaintiffs to purchase the Class Vehicles, which it does not do. However, such bare allegations here, however, do not support an inference the Defendants did so with the intent to induce the Plaintiffs to purchase the Class Vehicles. Thus, the complaint fails to plead facts sufficient to state a claim for relief under the Texas Deceptive Trade Practices Consumer Protection Act. The Defendants' motion to dismiss is allowed with respect to Count I (Oregon Unlawful Trade Practices Act), Count II (Colorado Consumer Protection Act), Count III (Texas Deceptive Trade Practices Consumer Protection Act), Count V (North Carolina Unfair and Deceptive Trade Practices Act), Count VII (Breach of Implied Warranty of Merchantability), and denied with respect to the remaining counts. A full-text copy of the District Court's March 29, 2018 Memorandum and Order is available at https://tinyurl.com/y6uzkd84 from Leagle.com. Sarah Duncan, Richard Silver, Anthony Weissenburger, Judy Weissenburger, Kevin Fry, Shaun Cooney, Clinton Stewart & Michelle Lim Stewart, Plaintiffs, represented by Gary Steven Graifman -- ggraifman@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C., pro hac vice, Howard T. Longman, Stull, Stull & Brody, pro hac vice, Jay I. Brody, Kantrowitz -- jbrody@kgglaw.com -- Goldhamer & Graifman, P.C., pro hac vice, Patrick K. Slyne, Stull, Stull & Brody, pro hac vice, Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- Tshapiro@shulaw.com -- Shapiro Haber & Urmy LLP. Nissan North America, Inc., Defendant, represented by E. Paul Cauley -- paul.cauley@dbr.com -- Drinker Biddle & Reath LLP, pro hac vice, Ingrid D. Johnson -- ingrid.johnson@dbr.com -- Drinker Biddle & Reath LLP, pro hac vice, James M. Campbell, Campbell, Campbell, Edwards & Conroy, PC, S. Vance Wittie -- vance.wittie@dbr.com -- Drinker Biddle & Reath LLP, pro hac vice, Eric M. Apjohn, Campbell, Campbell, Edwards & Conroy, PC & Jacob J. Lantry, Campbell, Campbell, Edwards & Conroy, PC. NYU LANGONE: Faces "Picon" Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against NYU Langone Hospitals. The case is styled as Yelitza Picon and on behalf of all other persons similarly situated, Plaintiff v. NYU Langone Hospitals, Defendant, Case No. 1:18-cv-04364 (S.D. N.Y., May 16, 2018). NYU Langone, based in New York City, is one of the nation's premier academic medical centers devoted to patient care, education, and research.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Tel: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com PAYPAL HOLDINGS: Continues to Defend "Sgarlata" Class Suit ---------------------------------------------------------- PayPal Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend itself in a class action suit entitled, Sgarlata v. PayPal Holdings, Inc., et al. In November 2017, the company announced that it had suspended the operations of TIO Networks ("TIO") as part of an ongoing investigation of security vulnerabilities of the TIO platform. On December 1, 2017 the company announced that it had identified evidence of unauthorized access to TIO's network, including locations that stored personal information of some of TIO's customers and customers of TIO billers and the potential compromise of personally identifiable information for approximately 1.6 million customers. The company has received a number of governmental inquiries, including from state attorneys general, and the company may be subject to additional governmental inquiries and investigations in the future. In addition, on December 6, 2017, a putative class action lawsuit captioned Sgarlata v. PayPal Holdings, Inc., et al., Case No. 3:17-cv-06956 was filed in the Court against the Company, its Chief Executive Officer, its Chief Financial Officer and Hamed Shahbazi, the former chief executive officer of TIO (the "Defendants") alleging violations of federal securities laws. Specifically, the lawsuit alleges that Defendants made false or misleading statements or failed to disclose that TIO's data security program was inadequate to safeguard the personally identifiable information of its users, those vulnerabilities threatened continued operation of TIO's platform, the Company's revenues derived from TIO services were thus unsustainable, and consequently, the Company overstated the benefits of the TIO acquisition, and, as a result, the Company's public statements were materially false and misleading at all relevant times. The plaintiff who initiated the lawsuit sought to represent a class of shareholders who acquired shares of the Company's common stock between February 14, 2017 through December 1, 2017 and sought damages and attorneys' fees, among other relief. On March 16, 2018, the Court appointed two new plaintiffs, not the original plaintiff who filed the case, as interim co-lead plaintiffs in the case and appointed two law firms as interim co- lead counsel. Pursuant to stipulations entered into by the parties to the case, the Court issued orders on March 30 and April 6, 2018 providing for the publication by interim co-lead counsel of an amended notice under the Private Securities Litigation Reform Act given the anticipated amendment of the complaint to include an amended class definition that includes individuals who purchased options to purchase the company's common stock between February 14, 2017 through December 1, 2017, the filing of an amended complaint by co-lead plaintiffs within seventy-five days of the March 30, 2018 order, and a briefing schedule on the Defendants' anticipated motions to dismiss the amended complaint. PayPal Holdings said, "We may be subject to additional litigation relating to TIO's data security platform or the suspension of TIO's operations in the future." PayPal Holdings, Inc. is a leading technology platform and digital payments company that enables digital and mobile payments on behalf of consumers and merchants worldwide. The company is based in San Jose California. PHILIP MORRIS: Smoker Health Defense Association's Suit Ongoing --------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that plaintiff's en banc appeal to the Supreme Court of Justice and defendants' constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit, are still pending. The company's subsidiary and another member of the industry are defendants in a class action pending in Brazil, The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995. The plaintiff, a consumer organization, is seeking damages for all addicted smokers and former smokers, and injunctive relief. In 2004, the trial court found defendants liable without hearing evidence and awarded "moral damages" of R$1,000 (approximately $293) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. In February 2015, the appellate court unanimously dismissed plaintiff's appeal. In September 2015, plaintiff appealed to the Superior Court of Justice. In February 2017, the Chief Justice of the Supreme Court of Justice denied plaintiff's appeal. In March 2017, plaintiff filed an en banc appeal to the Supreme Court of Justice. In addition, the defendants filed a constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit. Both appeals are still pending. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: Unit Continues to Defend Public Prosecutor's Suit ---------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company's subsidiary continues to defend a class action suit in Brazil entitled, Public Prosecutor of Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda. In a class action pending in Brazil, Public Prosecutor of Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda., Civil Court of the City of Sao Paulo, Brazil, filed August 6, 2007, the company's subsidiary is a defendant. The plaintiff, the Public Prosecutor of the State of Sao Paulo, is seeking (i) damages on behalf of all smokers nationwide, former smokers, and their relatives; (ii) damages on behalf of people exposed to environmental tobacco smoke nationwide, and their relatives; and (iii) reimbursement of the health care costs allegedly incurred for the treatment of tobacco-related diseases by all Brazilian States and Municipalities, and the Federal District. In an interim ruling issued in December 2007, the trial court limited the scope of this claim to the State of Sao Paulo only. In December 2008, the Seventh Civil Court of Sao Paulo issued a decision declaring that it lacked jurisdiction because the case involved issues similar to the ADESF case discussed and should be transferred to the Nineteenth Lower Civil Court in Sao Paulo where the ADESF case is pending. The court further stated that these cases should be consolidated for the purposes of judgment. In April 2010, the Sao Paulo Court of Appeals reversed the Seventh Civil Court's decision that consolidated the cases, finding that they are based on different legal claims and are progressing at different stages of proceedings. This case was returned to the Seventh Civil Court of Sao Paulo, and the company's subsidiary filed its closing arguments in December 2010. In March 2012, the trial court dismissed the case on the merits. In January 2014, the Sao Paulo Court of Appeals rejected plaintiff's appeal and affirmed the trial court decision. In July 2014, plaintiff appealed to the Superior Court of Justice. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "Letourneau" Class Action vs. Unit Still Ongoing --------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that its subsidiary continues to defend itself in a class action suit entitled, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., filed in Quebec Superior Court, Canada. In a class action pending in Canada, Cecilia Letourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in September 1998, the company's subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiff, an individual smoker, sought compensatory and punitive damages for each member of the class who is deemed addicted to smoking. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found the company's subsidiary and two other Canadian manufacturers liable and awarded a total of CAD 131 million (approximately $103 million) in punitive damages, allocating CAD 46 million (approximately $36 million) to the company's subsidiary. The trial court found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' addiction. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the size of the addiction class at 918,000 members but declined to award compensatory damages to the addiction class because the evidence did not establish the claims with sufficient accuracy. The trial court ordered defendants to pay the full punitive damage award into a trust within 60 days and found that a claims process to allocate the awarded damages to individual class members would be too expensive and difficult to administer. The trial court ordered a briefing on the proposed process for the distribution of sums remaining from the punitive damage award after payment of attorneys' fees and legal costs. In June 2015, the company's subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. Our subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that the company's subsidiary make the payment into a trust within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking security in both the Letourneau case and the Blais case. In October 2015, the Court of Appeal granted the motion and ordered our subsidiary to furnish security totaling CAD 226 million (approximately $177 million), in the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $29.4 million) beginning in December 2015 through March 2017. The Court of Appeal heard oral arguments on the merits appeal in November 2016. The company's subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) holding that the addiction class members' claims for punitive damages were not time-barred even though the case was filed more than three years after a prominent addiction warning appeared on all packages, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "Blais" Class Action vs. Unit Still Pending ---------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that its subsidiary company continues to defend itself in a class action suit entitled, Conseil Quebecois Sur Le Tabac Et La Sante and Jean- Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., filed in Quebec Superior Court, Canada. In a class action pending in Canada, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in November 1998, the company's subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiffs, an anti-smoking organization and an individual smoker, sought compensatory and punitive damages for each member of the class who allegedly suffers from certain smoking-related diseases. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found the company's subsidiary and two other Canadian manufacturers liable and found that the class members' compensatory damages totaled approximately CAD 15.5 billion, including pre-judgment interest (approximately $12.1 billion). The trial court awarded compensatory damages on a joint and several liability basis, allocating 20% to our subsidiary (approximately CAD 3.1 billion, including pre-judgment interest (approximately $2.4 billion)). In addition, the trial court awarded CAD 90,000 (approximately $70,500) in punitive damages, allocating CAD 30,000 (approximately $23,500) to the company's subsidiary and found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' diseases. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the disease class at 99,957 members. The trial court ordered defendants to pay CAD 1 billion (approximately $783 million) of the compensatory damage award into a trust within 60 days, CAD 200 million (approximately $157 million) of which is our subsidiary's portion and ordered briefing on a proposed claims process for the distribution of damages to individual class members and for payment of attorneys' fees and legal costs. In June 2015, the company's subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. Our subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that the company's subsidiary make an initial payment within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking an order that defendants place irrevocable letters of credit totaling CAD 5 billion (approximately $3.91 billion) into trust, to secure the judgments in both the Letourneau and Blais cases. Plaintiffs subsequently withdrew their motion for security against JTI-MacDonald Corp. and proceeded only against the company's subsidiary and Imperial Tobacco Canada Ltd. In October 2015, the Court of Appeal granted the motion and ordered our subsidiary to furnish security totaling CAD 226 million (approximately $177 million) to cover both the Letourneau and Blais cases. Such security may take the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $29.4 million) beginning in December 2015 through March 2017. The Court of Appeal ordered Imperial Tobacco Canada Ltd. to furnish security totaling CAD 758 million (approximately $593 million) in seven equal consecutive quarterly installments of approximately CAD 108 million (approximately $84.6 million) beginning in December 2015 through June 2017. In March 2017, the company's subsidiary made its sixth and final quarterly installment of security for approximately CAD 37.6 million (approximately $29.4 million) into a court trust. This payment is included in other assets on the condensed consolidated balance sheets and in cash used in operating activities in the condensed consolidated statements of cash flows. The Court of Appeal ordered that the security is payable upon a final judgment of the Court of Appeal affirming the trial court's judgment or upon further order of the Court of Appeal. The Court of Appeal heard oral arguments on the merits appeal in November 2016. The company's subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) relying on epidemiological evidence that did not meet recognized scientific standards, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: Counsel in "Kunta" Case to Pursue Another Suit ------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the plaintiff's counsel has informed the defendants in the case Kunta v. Canadian Tobacco Manufacturers' Council, et al., that he did not anticipate taking any action in case while he pursues the class action filed in Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada. In a class action pending in Canada, Kunta v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Winnipeg, Canada, filed June 12, 2009, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic obstructive pulmonary disease ("COPD"), severe asthma, and mild reversible lung disease resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. In September 2009, plaintiff's counsel informed defendants that he did not anticipate taking any action in this case while he pursues the class action filed Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewa. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: Preliminary Motions Still Pending in "Adams" ----------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that preliminary motions are pending in the case entitled, Adams v. Canadian Tobacco Manufacturers' Council, et al. In a class action pending in Canada, Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada, filed July 10, 2009, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and COPD resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, emphysema, heart disease, or cancer, as well as restitution of profits. Preliminary motions are pending. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "Semple" Suit Stayed Pending "Adams" Case -------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the plaintiff's counsel in the case, Semple v. Canadian Tobacco Manufacturers' Council, et al., has informed the parties that no activity is anticipated while counsel pursues the class action filed in Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada. In a class action pending in Canada, Semple v. Canadian Tobacco Manufacturers' Council, et al., The Supreme Court (trial court), Nova Scotia, Canada, filed June 18, 2009, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and COPD resulting from the use of tobacco products. He is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, as well as restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. No activity in this case is anticipated while plaintiff's counsel pursues the class action filed in Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "Dorion" Complaint Still Not Properly Served ----------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company, its subsidiaries, and its indemnitees have not been properly served with the complaint in the case entitled, Dorion v. Canadian Tobacco Manufacturers' Council, et al. In a class action pending in Canada, Dorion v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Alberta, Canada, filed June 15, 2009, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and chronic bronchitis and severe sinus infections resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers, their estates, dependents and family members, restitution of profits, and reimbursement of government health care costs allegedly caused by tobacco products. To date, the company, its subsidiaries, and its indemnitees have not been properly served with the complaint. No activity in this case is anticipated while plaintiff's counsel pursues the class action filed in Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "McDermid" Class Action Suit Still Ongoing --------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, the company continues to defend a class action suit in Canada entitled, McDermid v. Imperial Tobacco Canada Limited, et al. In a class action pending in Canada, McDermid v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges his own addiction to tobacco products and heart disease resulting from the use of tobacco products. He is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from heart disease allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: Continues to Defend "Bourassa" Class Suit -------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit in Canada entitled, Bourassa v. Imperial Tobacco Canada Limited, et al. In a class action pending in Canada, Bourassa v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, the heir to a deceased smoker, alleges that the decedent was addicted to tobacco products and suffered from emphysema resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from chronic respiratory diseases allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. In December 2014, plaintiff filed an amended statement of claim. No further updates were provided in the Company's SEC report. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHILIP MORRIS: "Jacklin" Class Suit Remains Dormant --------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that plaintiff's counsel in the case entitled, Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al. has indicated that he does not intend to take any action in the near future. In a class action pending in Canada, Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al., Ontario Superior Court of Justice, filed June 20, 2012, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and COPD resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, heart disease, or cancer, as well as restitution of profits. Plaintiff's counsel has indicated that he does not intend to take any action in this case in the near future. Philip Morris International Inc. is an international tobacco company engaged in the manufacture and sale of cigarettes and other nicotine-containing products in markets outside the United States of America. The company is based in New York. PHL VARIABLE: Sued in New York Over Excessive COI Increase ---------------------------------------------------------- Advance Trust & Life Escrow Services, LTA, as nominee of Life Partners Position Holder Trust, on behalf of itself and all others similarly situated v. PHL Variable Life Insurance Company, Case No. 1:18-cv-03444-UA (S.D.N.Y., April 19, 2018), is brought on behalf of all owners of life insurance policies issued by PHL Variable Life Insurance Company that seeks damages as a direct and proximate cause of Phoenix's material breaches of the policies, specifically by its unlawful excessive cost of insurance ("COI") increase. PHL Variable Life Insurance Company is a member of The Phoenix Companies, Inc. Headquartered at 450 Park Avenue, 24th Floor, New York, New York 10022, PHL Variable Life Insurance Company provides life insurance and annuity products to affluent and middle market consumers in the United States. [BN] The Plaintiff is represented by: Seth Ard, Esq. SUSMAN GODFREY LLP 1301 Avenue of the Americas, 32nd Floor New York, NY 10019-6023 Telephone: (212) 336-8330 Facsimile: (212) 336-8340 E-mail: sard@susmangodfrey.com - and - Steven G. Sklaver, Esq. SUSMAN GODFREY LLP 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: ssklaver@susmangodfrey.com POLARIS INDUSTRIES: Four Class Suits in the U.S. ------------------------------------------------------------- Polaris Industries Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company faces four putative class actions pending against it in the U.S. Polaris Industries said, "As of the date hereof, we are aware of four putative class actions pending against Polaris in the U.S." Three class actions arise out of allegations that certain Polaris products suffer from unresolved fire hazards allegedly resulting in economic loss. Polaris has been served in one of these putative class actions: James Bruner, Michael Zeeck and Ed Beatie, individually and on behalf of all others similarly situated v. Polaris Industries/Sales Inc. (D. MN), April 5, 2018. Polaris has received pre-suit notice of the remaining two putative class actions pursuant to the California Legal Remedies Act but has not yet been served: Les Willmon, individually and on behalf of all others similarly situated v. Polaris Sales Inc. (E.D. CA), April 5, 2018, and Jose Luna, individually and on behalf of all others similarly situated v. Polaris Sales Inc. (D. MN), April 10, 2018. The fourth putative class action is pending in the federal district court of Minnesota and alleges excessive heat hazards on certain other Polaris products and seeks damages for alleged personal injury and economic loss: Riley Johannesshon, Daniel Badilla, James Kelley, Ronald Krans, Kevin Wonders, William Bates and James Pinion, individually and on behalf of all others similarly situated v. Polaris Industries (D. MN), October 4, 2016. Polaris Industries "As these proceedings are in the early stages, we are unable to provide an evaluation of the likelihood that a loss will be incurred or an estimate of the range of possible loss." Polaris Industries Inc. designs, engineers, manufactures, and markets power sports vehicles worldwide. The company operates through four segments: Off-Road Vehicles (ORVs)/Snowmobiles, Motorcycles, Global Adjacent Markets, and Aftermarket. The company is based in Medina, Minnesota. PRATT & WHITNEY: Judge Rules Against Expanding Lawsuit ------------------------------------------------------ Jane Musgrave, writing for My Palm Beach Post, reports that all 45,000 residents of The Acreage will not be allowed to join a lawsuit that accuses jet engine manufacturer Pratt & Whitney of releasing carcinogens into the sprawling rural area in western Palm Beach County, a federal judge ruled. Saying the 60-square-mile area of nearly 15,000 homes is simply too big and too varied, U.S. District Judge Kenneth Marra on Ma rejected 2 request from attorneys representing six homeowners to expand their claims against the military contractor to the entire community. While refusing to give the lawsuits class-action status, Marra didn't rule on the veracity of the allegations that began nearly a decade ago when state and national health officials designated the community as a pediatric cancer cluster. The individual lawsuits, accusing Pratt of causing a spike in pediatric brain cancer and blaming it for destroying residential property values, can proceed, he ruled. West Palm Beach attorney Mara Hatfield, Esq. -- MRH@searcylaw.com -- who is suing Pratt both on behalf of Acreage residents who lost loved ones to cancer and those who are seeking redress for lost property values, said she and other lawyers involved in the cases are weighing their options. They could appeal Marra's 42-page ruling in hopes the entire community could potentially benefit from the lawsuits that blame Pratt for depressing property values by contaminating soil and drinking water in the community. Or, she said, as they are doing with the lawsuits accusing Pratt of ravaging the health of 23 Acreage residents, they could try each case separately. The company that for decades has conducted rocket and jet engine testing on a 30-square-mile compound off the Beeline Highway said Marra's ruling was a vindication. "As we have repeatedly said over the past eight years since these cases were first filed, there is no credible scientific basis to support any allegation that contaminants from Pratt & Whitney's West Palm Beach operation have reached the Acreage community . . . much less that they pose any risk to residents," Pratt said in a statement. When the Florida Department of Health and the Centers of Disease Control and Prevention in 2010 found an elevated number of brain and central nervous system cancer among kids in The Acreage, they didn't identify a cause or source behind the figures that frightened residents. That is the case in most cancer clusters designated throughout the country. State environmental regulators declared the water in The Acreage safe to drink. Hatfield and attorney Jack Scarola, Esq. -- JSX@searcylaw.com -- hired various experts who claimed they linked the cancer cluster to Pratt. The company hired experts of its own to dispute those allegations. Pratt officials insisted Marra's ruling is just the beginning. "We believe the denial of class certification is an important step toward the final dismissal of the unfounded claims made by these plaintiffs against Pratt & Whitney," it said. Hatfield countered that Marra's detailed ruling shows he carefully considered the highly technical allegations that involved complex chemical, geographical, medical and statistical theories that were presented to him during a five-day hearing in January. "We're very pleased with the way the court treated the evidence underlying our claims," she said. Marra dismissed as "speculation" some of the allegations made against Pratt by Hatfield and other attorneys who are representing the homeowners. But, he didn't reject them outright. He said there was no evidence that the alleged contamination was as broad or uniform as Hatfield and other attorneys representing the residents claimed. Significantly, he threw out the testimony of a real estate expert who claimed he could conduct a "mass appraisal" to determine how the contamination impacted the value of each home in The Acreage. Marra declared the approach espoused by John Kilpatrick, a Boston real estate appraiser, as "fundamentally flawed" and scientifically unreliable. Without a well-founded way to calculate damages for each home, much less Pratt's responsibility for it, there was no way the litigation could proceed as a class action, he said. "This will necessitate testing each home individually too determine exposure and dose levels at each location in order to assess the magnitude of any damages attributable to conduct of Pratt & Whitney," he said of why the dispute must be decided on a case-by-case basis. While Hatfield and other attorneys decide what action to take to keep their plans for a class-action suit alive, Hatfield said she is busy preparing for trial in a lawsuit against Pratt involving the brain cancer death of 18-year-old Acreage resident Cynthia Santiago. The trial is to begin in January.[GN] PURDUE PHARMA: Sued Over Rising Health Insurance Premiums --------------------------------------------------------- Andrew M Harris, writing for Bloomberg, reports that makers and distributors of the prescription opioids that triggered a U.S. public health crisis are responsible for a rise in health- insurance premiums, according to first-of-their-kind lawsuits filed in five states. The lawsuits open another front in the burgeoning litigation against drugmakers including Purdue Pharma Inc. and the Janssen Pharmaceuticals unit of Johnson & Johnson and distributors such as McKesson Corp. and Cardinal Health Inc. The suits, which seek unspecified damages, seek to represent everyone who has bought a health insurance policy in those states since 1996. "All of the defendants in this action share responsibility for creating, sustaining and prolonging the opioid epidemic" in pursuit of corporate revenue, lead plaintiff Edward Grace alleges in a complaint filed on May 2 in Boston. Similar cases were brought in New Jersey, Massachusetts, Illinois and California, said plaintiffs' lawyer Travis Lenkner of Chicago's Keller Lenkner law firm. He said a group of firms he's working with consider these to be the first such cases over insurance premiums. The suits accuse the defendants of conspiring, racketeering and creating a public nuisance. Opioid abuse has killed more than 350,000 people since 1999, while costing private businesses and American governments $500 billion annually. The companies didn't immediately return emails seeking comment. About 500 cities, counties and states have sued the same companies, seeking to hold them responsible for increased costs of crime, incarceration and treatment. Most of the federal suits have been aggregated for pretrial proceedings before a U.S. judge in Cleveland. The Massachusetts case is Grace v. Purdue Pharma, 18-cv-10857, U.S. District Court, District of Massachusetts (Boston). The New Jersey case is Sardella v. Purdue Pharma, 18-cv-8706, U.S. District Court, District of New Jersey. [GN] PURDUE PHARMA: 3 Law Firms File Opioid Epidemic Class Actions ------------------------------------------------------------- Three national law firms on May 2 filed class actions against pharmaceutical manufacturers and distributors on behalf of individuals and businesses who have suffered higher insurance costs as a result of the extreme burdens the opioid epidemic is placing on America's healthcare system. The law firms -- Edelson PC, Consovoy McCarthy Park PLLC, and Keller Lenkner LLC -- filed suits on behalf of plaintiffs in federal courts in California, Illinois, Massachusetts, New Jersey, and New York. The complaints charge the major opioid manufacturers and distributors with fraudulent and deceptive marketing practices, negligence in distributing opioids into the marketplace, and numerous other violations of state and federal law. In addition to the pain inflicted upon individuals and families, all Americans -- individual consumers, small businesses, and large corporations -- have borne the increased health insurance costs stemming from the opioid epidemic. The suits are the only opioid cases that address the health insurance costs consumers and businesses have faced as a result of the deadliest drug crisis in American history. "Decisions by opioid manufacturers and distributors to put profits over people have damaged millions of consumers and businesses that purchase health insurance coverage," said Jay Edelson of Edelson PC. "Individual policyholders are bearing the high cost of this unprecedented epidemic. Through these suits, we seek to hold the opioid companies accountable." In each of the cases filed on May 2, the putative class includes all individuals and corporate entities that purchased health insurance, including individuals who paid for part of an employer-sponsored insurance plan. The complaints allege that each class member paid higher health insurance costs as a predictable consequence of the defendants' misconduct. "Obtaining redress from the opioid wrongdoers is not a 'consumers vs. business' issue, and it transcends traditional political lines," said Will Consovoy -- will@consovoymccarthy.com -- of Consovoy McCarthy Park PLLC. "These classes include individual plaintiffs, small businesses, and large corporations. All of them have suffered damages at the hands of the opioid industry." Opioid companies' unlawful acts have led to billions of dollars in increased healthcare costs covered by private insurers. As one example, researchers from the Centers for Disease Control estimated that prescription opioid abuse caused a $14 billion increase in nationwide private health insurance costs in 2013 alone. And the numbers have only increased from there. The White House Council of Economic Advisers recently estimated that the economic cost of the opioid crisis in 2015 was more than $500 billion -- 2.8 percent of GDP. "It is not enough that public entities collect damages for the harms suffered by taxpayers," said Ashley Keller -- ack@kellerlenkner.com -- of Keller Lenkner LLC. "Pharmaceutical companies must pay for their devastating economic impact on the health insurance market. We're here to make sure that they do." For more information, or to discuss your rights as someone who has paid for health insurance coverage (with no obligation or cost to you), please contact Edelson PC at (312) 589-6370 / info@edelson.com, Consovoy McCarthy Park PLLC at (703) 243-9423 / info@consovoymccarthy.com, or Keller Lenkner LLC at (312) 741- 5220 / info@kellerlenkner.com. The Cases: Chu v. Purdue Pharma L.P. et al., No. 18-cv-02576 (N.D. Cal.) Grace v. Purdue Pharma L.P. et al., No. 18-cv-10857 (D. Mass.) Klodzinski v. Purdue Pharma L.P. et al., No. 18-cv-03927 (S.D.N.Y.) Rivers v. Purdue Pharma L.P. et al., No. 18-cv-03116 (N.D. Ill.) Sardella v. Purdue Pharma L.P. et al., No. 18-cv-08706 (D.N.J.) About Edelson PC Edelson PC -- http://www.edelson.com-- is a national leader in plaintiffs' class action and mass tort litigation. Law360 has called the firm a "Titan of the Plaintiffs Bar," a "Plaintiffs Class Action Powerhouse," and one of the "Consumer Protection Practice Groups of the Year" for 2017. Based in Chicago and San Francisco, Edelson has recovered billions of dollars in relief for its clients. About Consovoy McCarthy Park PLLC Consovoy McCarthy Park PLLC -- http://www.consovoymccarthy.com-- specializes in solving complex legal problems, and it represents clients in complex litigation and appeals before state courts, federal courts, administrative agencies, and the Supreme Court of the United States. About Keller Lenkner LLC Keller Lenkner LLC -- http://www.kellerlenkner.com-- pursues high-stakes litigation for plaintiffs across a variety of claims and practice areas. Its lawyers are uniquely situated at the intersection of law and finance, with experience that includes litigating in courts throughout the country as well as co- founding the world's largest private litigation finance firm. [GN] QUEENSLAND: To Pay $30-Mil. in Palm Island Class Action ------------------------------------------------------- Kerry Smith, writing for Green Left Weekly, reports that the Queensland government has reached a $30 million settlement with Palm Island residents in a class action in the Federal Court over the 2004 Palm Island riots that followed the death in police custody of Aboriginal man Cameron Doomadgee. But Doomadgee's family says no amount of money will alleviate the pain of losing him. The state will also apologise to the community after a landmark racial discrimination case in which the Federal Court found police were racist in their response to riots that followed Doomagee's death. Indigenous activist Lex Wotton launched the legal action in 2015 on behalf of 447 claimants. Doomadgee died of massive internal injuries in a police cell on November 19, 2004. He was locked up for allegedly being drunk and a public nuisance, and at the time of his arrest had no visible injuries Hours later, he was found dead with massive internal injuries, including broken ribs and a ruptured spleen and with his liver was so badly damaged it was almost cut in two. When, a week later, Doomadgee's autopsy results were released, angry residents marched from the town square and burnt down the police station, court house and police houses. Queensland's then- Premier Peter Beattie declared a state of emergency and dozens of riot squad members were flown in to control the crowd. Many people believed the arresting officer, Senior Sergeant Chris Hurley, murdered Doomadgee, but in 2007 he was acquitted of manslaughter. Wotton said: "Everyone was angry. "Everyone in the end really wanted to know what really happened. And everyone also wanted a fair and impartial investigation into what really happened." Wotton was later convicted of inciting a riot and served 19 months in jail before being released on parole in 2014. He was awarded $220,000 in damages in December 2016 after the Federal Court agreed with Wotten's claim that the islanders had been racially discriminated against during and after the unrest. He argued police had contravened the Racial Discrimination Act 1975 (Cth) in investigating Doomadgee's death, managing community concerns and responding to the protests. In her 2016 ruling, Federal Court Justice Debbie Mortimer found police had acted "with impunity" and the Queensland Police Service's failure to suspend Hurley after Doomadgee's death was unlawful discrimination. "I am satisfied the QPS . . . . would not have had that attitude if this tragedy occurred in a remote, close-knit, but overwhelmingly non-Aboriginal community -- for example, a pastoralist community in rural Queensland," she said. "But on Palm Island, QPS commanding and investigative officers operated with a sense of impunity, impervious to the reactions and perceptions of Palm Islanders, and very much with an 'us and them' attitude." Wotton said he is glad the class action has finally come to an end. "It did take a toll on me ... and I'm probably still suffering in some sense from it all now but I can move on," he said. Doomadgee's cousin Alec said the community was still traumatised by his death and the events surrounding it. "We will never move on. We will never forget our Cameron and no amount of money will change that," he said. "The community has suffered greatly. It's been a long road. It's a good day for the community and all the families who have been affected by the unfortunate death of my cousin." Wotten's lawyer Stewart Levitt, Esq. -- SLevitt@levittrobinson.com -- said: "This is an opportunity for a celebration. But the thing that does concern me is that people will be receiving substantial sums of money for the first time in their life. I just hope carpet baggers don't prey on them and lighten their pockets rapidly. "I'd like to see [the Australian Securities and Investment Commission] keeping a close watch to see what happens to the Indigenous [people] to ensure they're not preyed upon by people with poor motives in respect to the sudden floods of funds that they're going to be receiving in Palm Island, where there's not even a bank branch." Queensland Minister for Aboriginal and Torres Strait Islander Partnerships Jackie Trad said the government would work with the community on a way to recognise the apology. "We do know that the events of the Palm Island riot so many years ago now have left a big scar on that community," she said. Palm Island Mayor Alf Lacey said: "Hopefully that part of history will fade -- I think it's really important there's an apology statement from the state government. "From my end I certainly welcome the apology -- it's about healing but it's also about moving on. I think it's really important a line is drawn in the sand and people move on."[GN] QUINSTREET INC: June 26 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Bragar Eagel & Squire, P.C. on May 2 disclosed that that a class action lawsuit has been filed in the U.S. District Court for the Northern District of California on behalf of all persons or entities who purchased or otherwise acquired QuinStreet, Inc. (NASDAQ: QNST) securities between February 10, 2016 and April 10, 2018 (the "Class Period"). Investors have until June 26, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The complaint alleges that Defendants made false and/or misleading statements and/or failed to disclose that (i) QuinStreet recklessly disregarded the occurrence of click-through fraud; (ii) QuinStreet-owned websites experienced phony, low- quality traffic for its clients; (iii) the Company's practices were not geared toward providing its clients with valuable customers or high-quality leads or clicks; (iv) the Company's fiscal 2018 financial guidance was overstated; and (v) as a result of the foregoing, QuinStreet's public statements were materially false and misleading at all relevant times. If you purchased or otherwise acquired QuinStreet securities during the Class Period or continue to hold shares purchased prior to the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355- 4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. -- http://www.bespc.com-- is a New York-based law firm concentrating in commercial and securities litigation. [GN] RIPPLE LABS: Hit With Class-Action Suit Over 'Never Ending ICO' --------------------------------------------------------------- Lily Katz, writing for Bloomberg, reports that Ripple Labs Inc., the fintech startup that controls the world's third-largest cryptocurrency, was hit by a lawsuit alleging that it led a scheme to raise hundreds of millions of dollars through unregistered sales of its XRP tokens. The San Francisco-based company created billions of coins "out of thin air" and then profited by selling them to the public in "what is essentially a never-ending initial coin offering," the class-action complaint filed on May 3 in the Superior Court of California said. Ripple violated state and federal laws by offering unregistered securities to retail investors, the filing said. The plaintiff, investor Ryan Coffey, is seeking unspecified damages and a declaration that Ripple Labs and Chief Executive Officer Bradley Garlinghouse sold unregistered securities. Coffey is seeking to proceed on behalf of all purchasers of Ripple tokens. "We've seen the lawyer's tweet about a recently filed lawsuit but have not been served. Like any civil proceeding, we'll assess the merit or lack of merit to the allegations at the appropriate time," Ripple spokesman Tom Channick said in an emailed statement. "Whether or not XRP is a security is for the SEC to decide. We continue to believe XRP should not be classified as a security." The U.S. Securities and Exchange Commission said in July that companies which raise money through the sale of digital assets must adhere to federal securities laws. The SEC has also subpoenaed firms and individuals behind coin offerings it believes might be breaking the law, a person with direct knowledge of the matter said earlier this year. An SEC spokesman declined to comment on the agency's view of XRP at the time. "XRP is a security," the plaintiff said. "Defendants themselves have recognized that XRP investors have a reasonable expectation of profit, and publicly touted XRP's price performance on numerous occasions." Coffey purchased 650 XRP tokens for about $2.60 each, or $1,690, at the start of January and sold them a few weeks later at a loss of approximately $551, or about 32 percent of his initial investment, according to the filing. Whether Ripple and bigger rival Ether are securities has been at the center of debate within the sector since the SEC comments. Gary Gensler, the former chairman of the U.S. Commodity Futures Trading Commission, said that both XRP and Ether -- the second most valuable digital coin -- could be classified as securities. The lawsuit also highlighted Ripple's attempt to persuade some of the top U.S. crypto exchanges to list XRP. Bloomberg reported in April that the startup suggested paying financial incentives to the venues, Gemini and Coinbase, citing four people with direct knowledge of the matter, who asked not to be identified discussing private information. The case is Coffey v. Ripple Labs Inc., Superior Court of the State of California (San Francisco).[GN] RITE AID: "Wilson" Merger Class Action Remains Pending ------------------------------------------------------ Rite Aid Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the case entitled, Wilson v. Rite Aid Corp., et al., remains pending, but inactive. After the announcement of the proposed Merger between the Company and Walgreens Boots Alliance, Inc. (WBA), a putative class action lawsuit was filed in Pennsylvania in the Court of Common Pleas of Cumberland County (Wilson v. Rite Aid Corp., et al.) by a purported Company stockholder against the Company, its directors (the Individual Defendants, together with the Company, the Rite Aid Defendants), WBA and Victoria Merger Sub Inc. (Victoria) challenging the transactions contemplated by the Merger agreement. The complaint alleged primarily that the Individual Defendants breached their fiduciary duties by, among other things, agreeing to an allegedly unfair and inadequate price, agreeing to deal protection devices that allegedly prevented the directors from obtaining higher offers from other interested buyers for the Company and allegedly failing to protect against certain purported conflicts of interest in connection with the Merger. The complaint further alleged that the Company, WBA and/or Victoria aided and abetted these alleged breaches of fiduciary duty. The complaint sought, among other things, to enjoin the closing of the Merger as well as money damages and attorneys' and experts' fees. The matter remains pending, but inactive. Rite Aid is the third largest retail drugstore chain in the United States based on both revenues and number of stores. The company operated 2,550 stores in 19 states across the United States of America. The company is based in Camp Hill, Pennsylvania. RITE AID: Plaintiff Balks at Motion to Dismiss "Hering" Suit ------------------------------------------------------------ Lead Plaintiff filed on May 1, 2018, an Omnibus Memorandum of Law in Opposition to Defendants' Motions to Dismiss the Amended Complaint in the case, Hering v. Rite AID Corporation et al., Case No. 1:15-cv-02440 (M.D. Pa., Dec. 18, 2015). The case is pending before Judge John E Jones, III. Rite Aid said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that in connection with the proposed Merger between the Company and Walgreens Boots Alliance, Inc. (WBA), an action was filed in the United States District Court for the Middle District of Pennsylvania (the Pennsylvania District Court), asserting a claim for violations of Section 14(a) of the Exchange Act and SEC Rule 14a-9 against the Rite Aid Defendants, WBA and Victoria and a claim for violations of Section 20(a) of the Exchange Act against the Individual Defendants and WBA (Hering v. Rite Aid Corp., et al.). The complaint in the Hering action alleged, among other things, that the Rite Aid Defendants disseminated an allegedly false and materially misleading proxy and sought to enjoin the shareholder vote on the proposed Merger, a declaration that the proxy was materially false and misleading in violation of federal securities laws and an award of money damages and attorneys' and experts' fees. On January 14 and 16, 2016, respectively, the plaintiff in the Hering action filed a motion for preliminary injunction and a motion for expedited discovery. On January 21, 2016, the Rite Aid Defendants filed a motion to dismiss the Hering complaint. At a hearing held on January 25, 2016, the Pennsylvania District Court orally denied the plaintiff's motion for expedited discovery and subsequently denied the plaintiff's motion for preliminary injunction on January 28, 2016. On March 14, 2016, the Pennsylvania District Court appointed Jerry Hering, Don Michael Hussey and Joanna Pauli Hussey as lead plaintiffs for the putative class and approved their selection of Robbins Geller Rudman & Dowd LLP as lead counsel. On April 14, 2016, the Pennsylvania District Court granted the lead plaintiffs' unopposed motion to stay the Hering action for all purposes pending consummation of the Merger. On March 17, 2017, the Hering plaintiffs filed a motion to lift the stay for the purpose of filing a proposed amended complaint. Defendants opposed the motion, and briefing concluded on April 17, 2017. The proposed amended complaint asserted state law breach of fiduciary duty claims against the Individual Defendants, a claim of aiding and abetting the alleged breaches of fiduciary duty against Rite Aid, WBA and Victoria, as well as claims for violations of Section 14(a) of the Exchange Act and SEC Rule 14a-9 against the Rite Aid Defendants, WBA and Victoria, claims for violations of Section 10(b) of the Exchange Act and SEC Rule 10b-5 against the Rite Aid Defendants, WBA, Victoria and certain WBA executives, and a claim for violations of Section 20(a) of the Exchange Act against the Individual Defendants, WBA and Victoria. On August 4, 2017, the Pennsylvania District Court entered an order lifting the stay, noting that the original claims in this matter are now moot, and directed the plaintiffs to file a motion for leave to amend the complaint, with brief in support thereof, on or before September 15, 2017 which deadline was subsequently extended to September 22, 2017. On September 22, 2017, the lead plaintiffs gave notice that plaintiffs Don Michael Hussey and Joanna Pauli Hussey were withdrawing as lead plaintiffs, and that plaintiff Jerry Hering (the Lead Plaintiff) would continue to represent the proposed class in the Hering action going forward. That same day, Lead Plaintiff filed a motion for leave to file an amended complaint, which the Pennsylvania District Court granted on November 27, 2017. On December 11, 2017, Lead Plaintiff filed the amended complaint (the Amended Complaint), which alleges a claim for violations of Section 10(b) of the Exchange Act and SEC Rule 10b-5 and a claim for violations of Section 20(a) of the Exchange Act against the Rite Aid Defendants, WBA, and certain WBA executives. On February 14 and 16, 2018, the Rite Aid Defendants filed a motion to dismiss the Amended Complaint, and an opening brief in support thereof. Lead Plaintiff's answering brief and the Rite Aid Defendants' reply brief were scheduled to be filed on or before April 17 and May 17, 2018, respectively. Rite Aid is the third largest retail drugstore chain in the United States based on both revenues and number of stores. The company operated 2,550 stores in 19 states across the United States of America. The company is based in Camp Hill, Pennsylvania. RITE AID: Indergit Administrator Has Disbursed Settlement Funds --------------------------------------------------------------- Rite Aid Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the settlement administrator in Indergit v. Rite Aid Corporation, et al., has disbursed the settlement funds. The Company has been named in a collective and class action lawsuit, Indergit v. Rite Aid Corporation, et al., pending in the United States District Court for the Southern District of New York, filed purportedly on behalf of current and former store managers working in the Company's stores at various locations around the country. The lawsuit alleges that the Company failed to pay overtime to store managers as required under the FLSA and under certain New York state statutes. The lawsuit also seeks other relief, including liquidated damages, attorneys' fees, costs and injunctive relief arising out of state and federal claims for overtime pay. On April 2, 2010, the Court conditionally certified a nationwide collective group of individuals who worked for the Company as store managers since March 31, 2007. The Court ordered that Notice of the Indergit action be sent to the purported members of the collective group (approximately 7,000 current and former store managers) and approximately 1,550 joined the Indergit action. Discovery as to certification issues has been completed. On September 26, 2013, the Court granted Rule 23 class certification of the New York store manager claims as to liability only, but denied it as to damages, and denied the Company's motion for decertification of the nationwide collective action claims. The Company filed a motion seeking reconsideration of the Court's September 26, 2013 decision which motion was denied in June 2014. The Company subsequently filed a petition for an interlocutory appeal of the Court's September 26, 2013 ruling with the U. S. Court of Appeals for the Second Circuit which petition was denied in September 2014. Notice of the Rule 23 class certification as to liability only has been sent to approximately 1,750 current and former store managers in the state of New York. Discovery related to the merits of the claims is ongoing. On January 12, 2017, the parties reached a settlement in principle of this matter, for an immaterial amount of money, which was subject to preliminary and final approval by the Court. On August 3, 2017, the Court entered an order granting Plaintiff's unopposed motion for preliminary approval of the settlement and notice of the settlement was issued to putative class members on September 7, 2017. On January 11, 2018, the Court entered an order granting Plaintiff's motion for final approval of the settlement. Pursuant to the settlement agreement and the Court's order, the Company funded the settlement, and the settlement administrator has disbursed the settlement funds. Rite Aid is the third largest retail drugstore chain in the United States based on both revenues and number of stores. The company operated 2,550 stores in 19 states across the United States of America. The company is based in Camp Hill, Pennsylvania. RITE AID: Trial in "Hill" Suit Continued to June 15 --------------------------------------------------- Rite Aid Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the San Diego County Superior Court has continued the trial in the case, Hall v. Rite Aid Corporation, to June 15, 2018. In the employee seating case (Hall v. Rite Aid Corporation, San Diego County Superior Court), the Court, in October 2011, granted the plaintiff's motion for class certification. The Company filed its motion for decertification, which motion was granted in November 2012. Plaintiff subsequently appealed the Court's order which appeal was granted in May 2014. The Company filed a petition for review of the appellate court's decision with the California Supreme Court, which petition was denied in August 2014. Proceedings in the Hall case were stayed pending a decision by the California Supreme Court in two similar cases. That decision was rendered on April 4, 2016. A status conference in the case was held on November 18, 2016, at which time the court lifted the stay and scheduled the case for trial on January 26, 2018. The Court continued the trial to June 15, 2018. On February 2, 2018, the Court denied Rite Aid's motion for summary judgment. Rite Aid is the third largest retail drugstore chain in the United States based on both revenues and number of stores. The company operated 2,550 stores in 19 states across the United States of America. The company is based in Camp Hill, Pennsylvania. RODAN + FIELDS: Hit With Suit Over Eyelash Enhancer --------------------------------------------------- Jonathan Berr, writing for CBS News, reports that skincare product company Rodan + Fields faces a federal class action lawsuit accusing it of violating state consumer protection laws and engaging in fraudulent and unfair marketing of its Lash Boost eye serum. Rodan + Fields says its $150 Lash Boost gives users "the appearance of lush, longer-looking lashes." But the suit claims the multilevel marketing company failed to disclose the side effects of a key ingredient in Lash Boost. The ingredient in question is a chemical called isopropyl cloprostenate, which is a type of medication called a prostaglandin analog. This one is used to treat eye conditions such as glaucoma. Rodan + Fields omitted information to Lash Boost buyers about the side effects of prostaglandin analogs that are well-known to eye doctors, according to the April 13 court filing in a U.S. District Court in Oakland, California. "Consumers of Lash Boost ... have experienced serious side effects, including change(s) in iris color, eyelid drooping, itchy eyes, eye/lid discoloration, thinning and loss of eyelashes/loss of eyelash hair, eye sensitivity, eye infections, and vision impairment," the filing says. Moreover, the suit notes that Allergan's Latisse, the only Food and Drug Administration-approved medication for "lash enhancement" also contains a prostaglandin analog, but Allergan fully discloses the potential side effects to consumers. Lash Boost, however, is marketed as a cosmetic and faces less stringent regulatory scrutiny than medications, which require FDA approval before they can be sold to the public. The lawsuit doesn't suggest that Lash Boost should be subject to FDA regulations, although prostaglandins and analogs including isopropyl cloprostenate are banned from cosmetics in Canada. U.S. cosmetic companies are permitted to use the chemicals in their products. In 2012, "Allergan ended up suing several companies that were selling products as over-the-counter cosmetics that contained prostaglandin analogs," according to the fashion site Racked. "It won on the basis that they were unfair competitors," the site reported. "But these types of products have been popular ever since; you can find several at Sephora, including some that contain isopropyl cloprostenate." According to the filing, the lawsuit seeks to compensate consumers who purchased Lash Boost. Attorneys from the law firm of Keller Rohrback LLP who represent the plaintiffs declined to comment. In a statement, Rodan + Fields denied any wrongdoing and accused the plaintiffs of comparing Lash Boost to "unrelated products, including prescription products that have different ingredients and formulations. We are going to let the specifics of our legal defense play out in court." It added that Lash Boost has been consistently marketed as a cosmetic and as such may cause irritation in some users, especially if used improperly. "Rodan + Fields provides clear directions to users, including those who experience irritations," the company said. Founded by Stanford-trained dermatologists Dr. Katie Rodan and Dr. Kathy Fields in 2000, Rodan + Fields said it generated more than $1.5 billion in sales in 2017, topping rivals such as Neutrogena and Olay According to the company, Lash Boost accounted for about $200 million in retail sales last year. As a multilevel marketer, Rodan + Fields sells its products through a network of nearly 300,000 independent representatives who are active on social media. Its products aren't available in stores. Rivals Mary Kay cosmetics, Younique and Avon operate under the same business model, which rewards consultants for both retail sales and recruiting new members to their sales teams.[GN] ROSETTA RADIOLOGY: Faces "Picon" Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Rosetta Radiology PLLC. The case is styled as Yelitza Picon and on behalf of all other persons similarly situated, Plaintiff v. Rosetta Radiology PLLC, Defendant, Case No. 1:18-cv-04368 (S.D. N.Y., May 16, 2018). Rosetta Radiology is an outpatient radiology and radiation oncology practice located on The Upper East Side of Manhattan.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Tel: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com ROTHMAN EVANS: Faces "Wheeler" Suit in N.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Rothman Evans, P.C. The case is styled as Sean Wheeler, individually and on behalf of all others similarly situated, Plaintiff v. Rothman Evans, P.C., Defendant, Case No. 5:18-cv-00584-FJS-DEP (N.D. N.Y., May 16, 2018). Rothman Evans, P.C. in Syracuse is a full-service law firm providing legal services and specializing in family law, criminal law, and civil litigation.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law Firm, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com RYB EDUCATION: Bid to Appoint Lead Counsel and Plaintiff Pending ---------------------------------------------------------------- RYB Education, Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the motion to appoint lead plaintiff and lead counsel in the consolidated class action is still pending. RYB Education said, "We and two of our directors and officers were named as defendants in two putative class actions filed in the United States District Court for the Southern District of New York: Qian v. RYB Education, Inc. et al., Case No. 1:17-cv- 09261-KPF (S.D.N.Y.) and Wang v. RYB Education, Inc. et al., Case No. 1:17-cv-09320-UA (S.D.N.Y.). The complaints in both actions allege that our registration statements contained misstatements or omissions regarding our business, operation, and compliance in violation of the U.S. securities laws." The complaints state that the plaintiffs seek to represent a class of persons who allegedly suffered damages as a result of their trading in our securities between September 27 and November 22, 2017, and allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, and Sections 11 and 15 of the Securities Act of 1933. On January 3, 2018, the court entered an order consolidating the two cases. On January 27, 2018, certain plaintiffs moved to appoint them as lead plaintiffs and to approve their choice of counsel, which is currently pending before the court. RYB Education, Inc. provides early childhood education service in the People's Republic of China. The company offers kindergarten services to 2-6-year-old children; and play-and-learn centers services for the joint participation of 0-6-year-old children and their families to promote children's development and prepare them for their entry into kindergartens and primary schools. RYB EDUCATION: "Qian" Class Action Pending in California -------------------------------------------------------- RYB Education, Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, the company is facing a putative class action entitled, Qian v. RYB Education, Inc. et al. RYB Education said, "We, three of our directors and officers, and certain underwriters for our initial public offering were also named as defendants in a putative class action filed in the Superior Court of the State of California for the County of San Mateo: Qian v. RYB Education, Inc. et al., Case No. 17CIV05494." The complaint alleges that the company's registration statements contained misstatements or omissions regarding its business, operations and prospects in violation of the U.S. securities laws. The complaint states that the plaintiffs seek to represent a class of persons who allegedly suffered damages as a result of their purchase or other acquisition of the company's securities in connection with its initial public offering on or about September 27, 2017, and alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. RYB Education, Inc. provides early childhood education service in the People's Republic of China. The company offers kindergarten services to 2-6-year-old children; and play-and-learn centers services for the joint participation of 0-6-year-old children and their families to promote children's development and prepare them for their entry into kindergartens and primary schools. SEATTLE GENETICS: Still Defends CD33A Class Action -------------------------------------------------- Seattle Genetics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend the so-called CD33A Class Action. On January 10, 2017, a purported securities class action lawsuit was commenced in the United States District Court for the Western District of Washington, naming as defendants the Company and certain of its officers, or the CD33A Class Action. A consolidated amended complaint was filed on June 6, 2017, following the court's appointment of a lead plaintiff and its approval of lead plaintiff's counsel. The lawsuit alleges material misrepresentations and omissions in public statements regarding the Company's business, operational and compliance policies, violations by all named defendants of Section 10(b) of the Exchange Act, and Rule 10b-5 thereunder, as well as violations of Section 20(a) of the Exchange Act. The complaint seeks compensatory damages of an undisclosed amount. The plaintiff alleges, among other things, that the Company made false and/or misleading statements and/or failed to disclose that SGN-CD33A presents a significant risk of fatal hepatotoxicity and that the Company had therefore overstated the viability of SGN- CD33A as a treatment for acute myeloid leukemia, AML. It is possible that additional suits will be filed, or allegations received from stockholders, with respect to these same matters and also naming the Company and/or its officers and directors as defendants. The Company filed a motion to dismiss this complaint on July 28, 2017. On October 18, 2017, the Court granted the Company's motion to dismiss with leave for plaintiff to file a second consolidated amended complaint. The plaintiff filed a second consolidated amended complaint on November 17, 2017, and the Company filed a motion to dismiss this new complaint on January 5, 2018. The plaintiff filed an opposition to the Company's motion to dismiss on February 16, 2018, and the Company replied to this opposition on March 9, 2018. It is possible that additional suits will be filed, or allegations received from stockholders, with respect to these same matters and also naming the Company and/or its officers and directors as defendants. The Company does not believe it is feasible to predict or determine the ultimate outcome or resolution of this litigation, or to estimate the amount of, or potential range of, loss with respect to this proceeding. In addition, the timing of the final resolution of this proceeding is uncertain. As a result of the lawsuit, the Company will incur litigation expenses and may incur indemnification expenses, and potential resolutions of the lawsuit could include a settlement requiring payments. Those expenses could have a material impact on the Company's financial position, results of operations, and cash flows. Seattle Genetics is a biotechnology company focused on the development and commercialization of targeted therapies for the treatment of cancer. The company is based in Bothell, Washington. SEATTLE GENETICS: "Kim" Suit Voluntarily Dismissed -------------------------------------------------- Seattle Genetics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that plaintiff in the case, Kim v. Cascadian Therapeutics, Inc., et al., has voluntarily dismissed his complaint. Between February 13, 2018 and February 16, 2018, four purported stockholders of Cascadian filed separate putative class action lawsuits and an individual complaint in the United States District Court for the District of Delaware and the United States District Court for the Western District of Washington against Cascadian and former members of its then-separate board of directors and the Company. The cases filed in Delaware are Kim v. Cascadian Therapeutics, Inc., et al., and Palazzo v. Cascadian Therapeutics, Inc., et al. The cases filed in Washington are Jaso v. Cascadian Therapeutics, Inc., et al., and Bensimon v. Cascadian Therapeutics, Inc., et al. Plaintiffs allege violations of Sections 14(d) and 14(e) of the Exchange Act, Rule 14d-9(d) promulgated under Section 14(d) of the Exchange Act, and Section 20(a) of the Exchange Act in connection with the Schedule 14D-9 filed by Cascadian with the SEC on February 8, 2018 in relation to the Cascadian Acquisition. The Bensimon complaint also alleges that the Cascadian board breached its fiduciary duties of care, loyalty and good faith by entering into the Cascadian Acquisition and allegedly failing to take steps to maximize Cascadian's value. All four complaints allege that the Schedule 14D-9 omitted material information, ostensibly rendering the Schedule 14D-9 materially incomplete. The complaints seek, among other things, to enjoin the Cascadian Acquisition and/or damages. On March 8, 2018, plaintiffs in the Kim, Palazzo and Bensimon cases, or the KPB Group, filed a motion in U.S. District Court for the District of Delaware seeking the award of reasonable attorneys' fees and expenses as a result of the alleged benefit provided to Cascadian shareholders from the supplemental disclosures Cascadian made following the filing of their purported class actions, or the KPB Group Fee Motion. Defendants' answer to the KPB Group Fee Motion is due on May 11, 2018. On March 26, 2018, while reserving his right to pursue the KPB Group Fee Motion, plaintiff in the Palazzo case voluntarily dismissed his complaint pursuant to Federal Rule of Civil Procedure 41(a) on the grounds that Cascadian's supplemental disclosures prior to the closing of the tender offer mooted the claims set forth in his complaint. Similarly, on April 17, 2018, while reserving his right to pursue the KPB Group Fee Motion, plaintiff in the Kim case voluntarily dismissed his complaint pursuant to Federal Rule of Civil Procedure 41(a) on the grounds that Cascadian's supplemental disclosures prior to closing of the tender offer mooted the claims set forth in his complaint. Seattle Genetics is a biotechnology company focused on the development and commercialization of targeted therapies for the treatment of cancer. The company is based in Bothell, Washington. SERVICE CORP: Settlement in "Allard" Finally Approved ----------------------------------------------------- Service Corporation International said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the settlement agreement in the case, Linda Allard, on behalf of herself and all others similarly situated v. SCI Direct, Inc., Case No 16-1033; in the United States District Court, Middle District of Tennessee, has been approved by the Court and is final. This case was filed in June 2016 as a class action under the Telephone Consumer Protection Act (the Act). Plaintiff alleged she received telemarketing telephone calls that were made with a prerecorded voice or made by an automatic telephone dialing system in violation of the Act. Plaintiff sought actual and statutory damages, as well as attorney's fees and costs. Service Corporation said, "The parties reached a settlement of the lawsuit as reported in our Form 8-K filed on August 30, 2017. The settlement agreement has been approved by the Court and is final." The financial terms of the settlement called for SCI Direct to pay $15.0 million, of which $3.5 million was paid by its insurer. Service Corporation International is North America's largest provider of deathcare products and services, with a network of funeral service locations and cemeteries unequaled in geographic scale and reach. The company is based in Houston, Texas. SERVICE CORP: Dismissal of "Moulton" Suit Under Appeal ------------------------------------------------------ Service Corporation International said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the plaintiffs have appealed the judgment of dismissal in the case, Karen Moulton, Individually and on behalf of all others similarly situated v. Stewart Enterprises, Inc., Service Corporation International and others, Case No. 2013-5636; in the Civil District Court Parish of New Orleans. This case was filed as a class action in June 2013 against SCI and its subsidiary in connection with SCI's acquisition of Stewart Enterprises, Inc. The plaintiffs allege that SCI aided and abetted breaches of fiduciary duties by Stewart Enterprises and its board of directors in negotiating the combination of Stewart Enterprises with a subsidiary of SCI. The plaintiffs seek damages concerning the combination. The company filed exceptions to the plaintiffs' complaint that were granted in June 2014. Thus, subject to appeals, SCI will no longer be party to the suit. The case has continued against the company's subsidiary Stewart Enterprises and its former individual directors. However, in October 2016, the court entered a judgment dismissing all of plaintiffs' claims. Plaintiffs have appealed the dismissal. Service Corporation said, "We cannot quantify our ultimate liability, if any, for the payment of damages." Service Corporation International is North America's largest provider of deathcare products and services, with a network of funeral service locations and cemeteries unequaled in geographic scale and reach. The company is based in Houston, Texas. SERVICE CORP: "Urofsky" Class Action Pending in E.D. Pa. -------------------------------------------------------- Service Corporation International said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company faces a class action suit entitled, Caroline Bernstein, on behalf of herself and Marla Urofsky on behalf of Rhea Schwartz, and both on behalf of all others similarly situated v. SCI Pennsylvania Funeral Services, Inc. and Service Corporation International, Case No. 2:17-cv-04960-GAM; in the United States District Court Eastern District of Pennsylvania. This case was filed in November 2017 as a purported national or alternatively as a Pennsylvania class action regarding our Forest Hills/Shalom Memorial Park in Huntingdon Valley, Pennsylvania and our Roosevelt Memorial Park Cemetery in Trevose, Pennsylvania. Plaintiffs allege wrongful burial and sales practices. Plaintiffs seek compensatory, consequential and punitive damages, attorneys' fees and costs, interest, and injunctive relief. Service Corporation said, "We cannot quantify our ultimate liability, if any, in this matter." Service Corporation International is North America's largest provider of deathcare products and services, with a network of funeral service locations and cemeteries unequaled in geographic scale and reach. The company is based in Houston, Texas. SILICON LABORATORIES: Defending "Noyes" Class Suit -------------------------------------------------- Ann Noyes has filed a class action lawsuit against Silicon Laboratories Inc., the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018. On March 15, 2018, a purported class action lawsuit was filed by Ann Noyes on behalf of the stockholders of Sigma Designs, Inc. in the United States District Court in the Northern District of California against Sigma Designs, certain current and former Sigma Designs board members and the company (collectively, the "Defendants"). The lawsuit alleges violations of Section 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9 arising out Sigma Designs' attempt to sell its Z-Wave business to the company. The lawsuit claims that the Defendants filed a materially incomplete and misleading preliminary proxy statement in connection with the proposed sale of the Z-Wave business. The lawsuit seeks to certify the class, enjoin the sale of the Z-Wave business, award rescissory damages if the sale is consummated, and award unspecified damages and other relief. Silicon Laboratories said, "At this time, we cannot predict the outcome of this matter or the resulting financial impact to us, if any." Silicon Laboratories Inc. is a leading provider of silicon, software and solutions for a smarter, more connected world. The company's award-winning technologies are shaping the future of the Internet of Things (IoT), Internet infrastructure, industrial automation, consumer and automotive markets. The company is based in Austin, Texas. SINA CORPORATION: Unit's Bid to Dismiss Consolidated Suit Pending ----------------------------------------------------------------- Sina Corporation said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that Weibo's motion to dismiss a class action lawsuit remains pending before the court. Weibo and certain of Weibo's current and former directors and officers have been named as defendants in two putative securities class actions filed in the United States District Court for the District of New Jersey: Andrew Goldsmith v. Weibo Corporation. et al., Civil Action No. 2:17-cv-04728-SRC-CLW (filed on June 27, 2017) ("Goldsmith Case") and Feng Chen v. Weibo Corporation. et al., Civil Action No. 2:17-cv-05694 (filed on August 3, 2017) ("Chen Case"). The Goldsmith Case was purportedly brought on behalf of a class of persons who allegedly suffered damages as a result of their trading in the Weibo ADSs between April 27 and June 22, 2017; the Chen Case was purportedly brought on behalf of a class of persons who allegedly suffered damages as a result of their trading in Weibo ADSs between April 28, 2016 and June 19, 2017. Both cases' complaints allege that Weibo's public filings contained material misstatements and omissions in violation of the federal securities laws. On September 28, 2017, the court entered an order appointing a lead plaintiff and consolidating the two cases. On November 27, 2017, the lead plaintiff filed a consolidated class action complaint. On January 26, 2018, Weibo and one individual defendant filed a motion to dismiss the amended complaint, which motion is currently pending before the court. Sina said, "The action remains in its preliminary stages. We believe the case is without merit and intent to defend the action vigorously." Sina Corporation is a Chinese technology company. Sina operates four major business lines: Sina Weibo, Sina Mobile, Sina Online, and Sinanet. Sina has over 100 million registered users worldwide. SIRIUS XM: "Buchanan" TCPA Class Action Suit Still Ongoing ---------------------------------------------------------- Sirius XM Holdings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit 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 we 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 established 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 the company's internal Do-Not- Call registry. The plaintiff is seeking various forms of relief, including statutory damages of $500 for each violation of the TCPA or, in the alternative, treble damages of up to $1,500 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 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. SIX FLAGS: Continues to Defend Suit over Biometric Info ------------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a potential class action complaint related to Illinois Biometric Information Privacy Act ("BIPA") violations. On January 7, 2016, a potential class action complaint was filed against Six Flags Entertainment Corporation in the Circuit Court of Lake County, Illinois. On April 22, 2016, Great America, LLC was added as a defendant. The complaint asserts that the company violated the Illinois Biometric Information Privacy Act ("BIPA") in connection with the admission of season pass holders and members through the finger scan program that commenced in the 2014 operating season at Six Flags Great America in Gurnee, Illinois, and seeks statutory damages, attorneys' fees and an injunction. An aggrieved party under BIPA may recover (i) $1,000 if a company is found to have negligently violated BIPA or (ii) $5,000 if found to have intentionally or recklessly violated BIPA, plus reasonable attorneys' fees in each case. The complaint does not allege that any information was misused or disseminated. On April 7, 2017, the court certified two questions for consideration by the Illinois Appellate Court of the Second District. On June 7, 2017, the Illinois Appellate Court granted the company's motion to appeal. Accordingly, two questions regarding the interpretation of BIPA were certified for consideration by the Illinois Appellate Court. On December 21, 2017, the Illinois Appellate Court found in the company's favor, holding that the plaintiff had to allege more than a technical violation of BIPA and had to be injured in some way. On March 1, 2018, the plaintiff filed a petition for leave to appeal to the Illinois Supreme Court. Six Flags Entertainment said, "We intend to continue to vigorously defend ourselves against this litigation. Since this litigation is still in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss in excess of the immaterial amount that we have recorded for this litigation cannot be made." Six Flags Entertainment Corporation is the largest regional theme park operator in the world based on the number of parks the company operates. Of its 20 regional theme parks and waterparks, 17 are located in the United States, two are located in Mexico and one is located in Montreal, Canada. The company is based in Grand Prairie, Texas. SIX FLAGS: Suits over Credit & Debit Card Info Still Ongoing ------------------------------------------------------------ Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend four potential class action complaints over credit or debit card information. During 2017, four potential class action complaints were filed against Six Flags Entertainment Corporation or one of its subsidiaries. Complaints were filed on August 11, 2017 in the Circuit Court of Lake County, Illinois, on September 1, 2017 in the United States District Court for the Northern District of Georgia, on September 11, 2017 in the Superior Court of Los Angeles County, California, and on November 30, 2017 in the Superior Court of Ocean County, New Jersey. The complaints allege that the company, in violation of federal law, printed more than the last five digits of a credit or debit card number on customers' receipts, and/or the expiration dates of those cards. A willful violation may subject a company to liability for actual damages or statutory damages between $100 and $1,000 per person, punitive damages in an amount determined by a court, and reasonable attorneys' fees, all of which are sought by the plaintiffs. The complaints do not allege that any information was misused. Six Flags Entertainment said, "We intend to vigorously defend ourselves against this litigation. Since this litigation is in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss cannot be made." Six Flags Entertainment Corporation is the largest regional theme park operator in the world based on the number of parks the company operates. Of its 20 regional theme parks and waterparks, 17 are located in the United States, two are located in Mexico and one is located in Montreal, Canada. The company is based in Grand Prairie, Texas. SOUTHERN RESPONSE: Woods to Facilitate Class Action Negotiations ---------------------------------------------------------------- David Williams, writing for Newsroom, reports that a top Auckland QC has been brought in to broker a deal between Christchurch earthquake victims and Crown-owned insurance claims company Southern Response. Earthquake Commission Minister Megan Woods' office confirms Miriam Dean QC -- who is heading a just-announced review of retail electricity prices -- has been facilitating negotiations between a group of homeowners with unresolved insurance claims and Southern Response. Grant Cameron, of GCA Lawyers, who represents the 24 homeowners, says Dean's involvement has been helpful. "We have had some very positive discussions which have resulted in us presenting a proposition to our clients and we're just waiting to see what that may lead to." Southern Response chief executive Anthony Honeybone confirms the company is in the final stages of negotiations over the class action. Mr. Cameron says the negotiations centre on finding an appropriate dispute resolution process, through which each claim could be considered and settled individually. Southern Response refuses to say what Ms. Dean's involvement has cost, but taxpayers will be paying given it's the Crown-owned company charged with settling AMI's earthquake claims. Last October, the Court of Appeal paved the way for a representative action in the High Court taken by two dozen Christchurch quake-damage claimants. They allege Southern Response had a deliberate strategy of minimising its financial liability for claims, using delaying and misleading conduct. The insurance company strongly denies the allegations. Days after the judgment was issued, Ms. Woods -- who, while in opposition, frequently criticised Southern Response for the way it was handling claims -- met with GCA Lawyers partner Cameron. She took the face-to-face meeting against the advice of Treasury, which wanted Cameron to send a written proposal. Treasury warned Ms. Woods against contradicting Southern Response's position on the claims or providing specific undertakings about the case. In February, Ms. Woods wrote to Southern Response chair Ross Butler and the class action group urging them to enter negotiations to find an appropriate settlement process, outside the courtroom. Ms. Dean's name was suggested by Southern Response and approved by Ms. Woods. (Treasury drafted the letters for Ms. Woods after consultation with Crown Law "to ensure that shareholding ministers are not opened to legal risk through sending these letters". It said the letters were appropriate, but warned "any perception of Crown intervention in the class action creates precedent and fiscal risks".) The class action, backed by an Australian litigation funding company, was launched in August 2015. Initially, it involved 47 AMI policy holders, but 19 have since settled and four are now negotiating their claims directly with Southern Response. Ms. Woods' willingness to step in continues her ministerial record of intervention. In February, her intention to appoint a ministerial adviser to peer into the Earthquake Commission's (EQC) outstanding Christchurch claims led to the resignation of EQC chair Sir Maarten Wevers. Last year she oversaw the tearing up of an early contract for Christchurch's metro sports facility. Treasury warnings Ms. Woods' letters over the Southern Response class action were written amidst a flood of warnings from Treasury over any direct intervention, official documents reveal. A February 20 Treasury report, written to Ms. Woods and Finance Minister Grant Robertson, and released to Newsroom under the Official Information Act, said litigation is an operational issue for Southern Response. Direct Crown involvement may increase the Crown's fiscal risks and have a knock-on effect for claims against Southern Response, private insurers and EQC, the report said. "We consider that the Crown should not be directly involved in this litigation." Treasury even referred Ms. Woods and Mr. Robertson to the Cabinet manual, which warns ministers of potential conflicts when dealing with community or lobby groups. "If the Crown is seen to favour the 24 claimants remaining in the class action, it risks creating an inequitable situation for all remaining claimants in Christchurch as well as those claimants who have already settled their claims." Ms. Woods tells Newsroom she hasn't ruled out intervention, should negotiations break down, but says the current process should continue "before we make further decisions". Southern Response's claims management is an operational matter, she says, but she supports an improved approach and efforts to find an alternative resolutions for customers. Treasury warned Ms. Woods that any change to the way Southern Response claims were settled could have ramifications for the wider insurance market. Creating an expectation The biggest danger from the class action, Treasury told the ministers in February, was the potential for general damages to be paid by Southern Response. To date, courts have only awarded general damages in one Christchurch quake claim, the briefing said -- a $5000 award against Tower, for not acting in good faith and withholding information. GCA Lawyers is seeking an initial $25,000 per claim, plus $15,000 for every year without settlement. Treasury's report said: "We are concerned that if Southern Response were to make a payment for the general damages sought, this would create an expectation among other claimants with outstanding claims against Southern Response that they are entitled to the same payment. In addition, it could potentially open up all settled claims in the same way." The briefing said EQC could also be exposed to additional claims and court action -- involving "undoubtedly large amounts" -- should general damages be paid as part of a settlement for these cases, or if the Crown intervened in the settlement process. GCA Lawyers partner Cameron says general damages are a live issue in any form of litigation. He agrees that general damages don't normally form part of an out-of-court settlement, but would not comment on whether it would be pursued for his clients in this case. Treasury's briefing said progress in resolving the Southern Response class action claims was dependent, in part at least, on information from claimants. Cameron retorts: "There would never have been court proceedings filed certainly by our firm without there being, we felt, very strong evidence of mismanagement of claims, and a failure to perform under the policy by the insurer." The best way forward, Treasury said, was for Southern Response to continue litigation, in case negotiations with class action claimants failed. Waking up to sleeper claims Taxpayers have pumped almost $1.5 billion into Southern Response. The company's outstanding net claims liability at December 31 last year was $493 million -- which, Treasury tells Ms. Woods, was fully covered by an uncalled Crown facility. The latest figures show Southern Response has 773 outstanding claims. A tally from last September said 40 claims were being pursued through the courts and Southern Response had joined EQC in a further 51 claims deemed under "cap". Home insurance earthquake claims up to a $115,000 cap are dealt with by EQC. Repairs assessed to be over that amount go to private insurers. A big issue right now are "sleeper" claims, involving under-cap homes repaired through EQC that need further repairs, because of missed or previously unidentified problems, of a magnitude that would push them over the cap. The Government is worried about the cost of such claims, possibly in the hundreds of millions of dollars. A tussle is developing between EQC and private insurers about liability. Quake insurance is experiencing major ructions in New Zealand right now. The Government has flagged changes to EQC's cover that will be brought in by the end of the year. These include increasing the cap to $150,000 plus GST, removing cover for contents and enabling claims up to two years after a natural disaster, rather than the current three-month time limit. Tower Insurance has announced that thousands of its customers living in quake-prone areas face premium hikes. Meanwhile, Christchurch law firms are warning insurance companies' limitation deadlines for taking claims are expiring in the coming months. Insurance Council chief executive Tim Grafton couldn't be reached for comment on these issues on May 1. Treasury's February briefing to Ms. Woods reveals the Ministry of Justice has been working on a proposal for a Canterbury Earthquakes Insurance Tribunal. The briefing said a paper would be going to Cabinet "shortly" for consideration. Justice Minister Andrew Little couldn't be reached for comment. Woods says the tribunal idea is "subject to a Budget process." [GN] SYNCHRONY FINANCIAL: Faces "Campbell", "Neal" & "Mott" TCPA Suits ----------------------------------------------------------------- Synchrony Financial said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend itself from class action lawsuits alleging violation of the Telephone Consumer Protection Act. The Bank or the Company is, or has been, defending a number of putative class actions alleging claims under the federal Telephone Consumer Protection Act ("TCPA") as a result of phone calls made by the Bank. The complaints generally have alleged that the Bank or the Company placed calls to consumers by an automated telephone dialing system or using a pre-recorded message or automated voice without their consent and seek up to $1,500 for each violation, without specifying an aggregate amount. Campbell et al. v. Synchrony Bank was filed on January 25, 2017 in the U.S. District Court for the Northern District of New York. The original complaint named only J.C. Penney Company, Inc. and J.C. Penney Corporation, Inc. as the defendants but was amended on April 7, 2017 to replace those defendants with the Bank. Neal et al. v. Wal-Mart Stores, Inc. and Synchrony Bank, for which the Bank is indemnifying Wal-Mart, was filed on January 17, 2017 in the U.S. District Court for the Western District of North Carolina. The original complaint named only Wal-Mart Stores, Inc. as a defendant but was amended on March 30, 2017 to add Synchrony Bank as an additional defendant. Mott et al. v. Synchrony Bank was filed on February 2, 2018 in the U.S. District Court for the Middle District of Florida. Synchrony Financial is a premier consumer financial services company delivering customized financing programs across key industries including retail, health, auto, travel and home, along with award-winning consumer banking products. The company provides a range of credit products through our financing programs which the company had established with a diverse group of national and regional retailers, local merchants, manufacturers, buying groups, industry associations and healthcare service providers, which the company refers to as their "partners." The company is based in Stamford, Connecticut. SYNCHRONY FINANCIAL: Kincaid TCPA Class Action Still Ongoing ------------------------------------------------------------ Synchrony Financial said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the company continues to defend a class action suit entitled, Michael W. Kincaid, DDS et al. v. Synchrony Financial. The Company is a defendant in a putative class action lawsuit alleging claims under the TCPA relating to facsimiles. In Michael W. Kincaid, DDS et al. v. Synchrony Financial, plaintiff alleges that the Company violated the TCPA by sending fax advertisements without consent and without required notices, and seeks up to $1,500 for each violation. The amount of damages sought in the aggregate is unspecified. The original complaint was filed in U.S. District Court for the Northern District of Illinois on January 20, 2016. On August 11, 2016, the Court granted the Company's motion to dismiss based on the lack of personal jurisdiction. On August 15, 2016, the plaintiff re-filed the case in the Southern District of Ohio. No further updates were provided in the Company's SEC report. Synchrony Financial is a premier consumer financial services company delivering customized financing programs across key industries including retail, health, auto, travel and home, along with award-winning consumer banking products. The company provides a range of credit products through our financing programs which the company had established with a diverse group of national and regional retailers, local merchants, manufacturers, buying groups, industry associations and healthcare service providers, which the company refers to as their "partners." The company is based in Stamford, Connecticut. SYSTEM DYNAMICS: "Mullally" Suit Seeks to Recover Unpaid Wages -------------------------------------------------------------- Jessie Mullally, individually and on behalf of all others similarly situated v. System Dynamics International d/b/a SDI, Case No. 5:18-cv-00631-UJH-LSC (N.D. Ala., April 20, 2018), seeks to recover unpaid wages, liquidated damages, interest, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. System Dynamics International provides services to the United States Department of Defense with a focus on manned and unmanned aviation training, simulation, operations, maintenance, and logistics. [BN] The Plaintiff is represented by: D.G. Pantazis Jr., Esq. Lacey Danley, Esq. WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB, LLC The Kress Building 301 19th Street N. Birmingham, AL 35203 Telephone: (205) 314-0500 E-mail: dgpjr@wigginschilds.com ldanley@wigginschilds.com TARGET CORP: Up & Up Toddler Wipes Settlement Has Prelim OK ----------------------------------------------------------- The following statement is being issued by Spangenberg, Shibley, & Liber LLP and Tycko & Zavareei LLP regarding the Target Corporation up & up flushable toddler wipes class action settlement. If you purchased Target up & up flushable toddler wipes, a class action settlement may affect your rights. A proposed nationwide class action settlement concerning Target up & up flushable toddler wipes has been preliminarily approved by a federal court in the Northern District of Ohio. The case is known as Meta v. Target Corp., 4:14-cv-00832 (N.D. Ohio). What is this lawsuit about? The lawsuit claims that certain up & up flushable toddler wipes manufactured by Target Corporation and Nice-Pak Products, Inc. were not "flushable." Target denies these claims, and the court has not decided who is right or who is wrong. Instead the parties have agreed to settle this case to resolve the matter. Who is included in the settlement? The class includes people who reside in the United States and bought up & up flushable toddler wipes at any U.S. Target Store from April 18, 2010 through October 31, 2014. The wipes involved in this settlement were under the "Buckeye" product line, which was discontinued on October 31, 2014. These claims do not relate to any up & up flushable wipes sold after October 31, 2014, including the current product. What does the settlement provide? Eligible class members who file a valid claim without a proof of purchase may be eligible to receive a gift card or coupon for a capped amount based on amounts purchased. The cap for the gift cards is no more than 20 units at $1.35 per unit (up to $27). The cap for coupons is 20. Eligible class members who file a valid claim with a proof of purchase may be eligible to receive gift cards or coupons for up & up wipes packs, based on the amount purchased, with no cap. If class members have proof of purchase for more than 20 units, they may receive either a gift card for $1.35 per unit, or 20 coupons for the first 20 purchases and a gift card in the amount of $1.35 for each additional purchase. What are my rights? Class members have the right to make a claim, to object to the settlement, to opt-out of the settlement, or to do nothing. To receive a payment, class members must submit a claim, either online or by mail, to the administrator. The claim deadline is September 3, 2018. The opt-out and objection deadline is July 5, 2018. A fairness hearing has been set for August 7, 2018, at the United States District Court for the Northern District of Ohio, 801 West Superior Avenue, Cleveland, Ohio 44113, to consider whether to approve the settlement and a request for attorneys' fees, costs, and expenses to be paid by the settlement. The request for attorneys' fees will be posted on the settlement website once it is filed. For more information or to file a claim, please go to: www.upandupwipessettlement.com or call 1-888-878-1989. Spangenberg, Shibley, & Liber LLP Tycko & Zavareei LLP Telephone: 1-888-878-1989. Website: www.upandupwipessettlement.com[GN] TIGER BRANDS: South Africa Gold Producers, Miners Reach Deal ------------------------------------------------------------ Reuters reports that South African gold producers signed a class action settlement on May 3 with law firms representing thousands of miners who contracted the fatal lung diseases silicosis and tuberculosis, the lawyers said on May 3. In their statement, the lawyers did not provide an amount but the companies have already said that they have set aside 5 billion rand ($395 million) in provisions for the settlement. [GN] TRINITY INDUSTRIES: Isolde Consolidated Suit Still Stayed --------------------------------------------------------- Trinity Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended March 31, 2018, that the Isolde suit has remained administratively closed pending the conclusion of the appeal in the Joshua Harman FCA case. On January 11, 2016, the previously reported cases styled Thomas Nemky, Individually and On Behalf of All Other Similarly Situated v. Trinity Industries, Inc., Timothy R. Wallace, and James E. Perry, Case No. (2:15-CV-00732) ("Nemky") and Richard J. Isolde, Individually and On Behalf of All Other Similarly Situated v. Trinity Industries, Inc., Timothy R. Wallace, and James E. Perry, Case No. (3:15-CV-2093) ("Isolde"), were consolidated in the District Court for the Northern District of Texas, with all future filings to be filed in the Isolde case. On March 9, 2016, the Court appointed the Department of the Treasury of the State of New Jersey and its Division of Investment and the Plumbers and Pipefitters National Pension Fund and United Association Local Union Officers & Employees' Pension Fund as co-lead plaintiffs ("Lead Plaintiffs). On May 11, 2016, the Lead Plaintiffs filed their Consolidated Complaint alleging defendants Trinity Industries, Inc., Timothy R. Wallace, James E. Perry, and Gregory B. Mitchell violated Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and defendants Mr. Wallace and Mr. Perry violated Section 20(a) of the Securities Exchange Act of 1934 by making materially false and misleading statements and/or by failing to disclose material facts about Trinity's ET Plus and the FCA case styled Joshua Harman, on behalf of the United States of America, Plaintiff/Relator v. Trinity Industries, Inc., Defendant, Case No. 2:12-cv-00089-JRG (E.D. Tex.). On August 18, 2016, Trinity, Mr. Wallace, Mr. Perry, and Mr. Mitchell filed motions to dismiss Lead Plaintiffs Consolidated Complaint, which remain pending. On March 13, 2017, the Court granted defendant's motion to stay and administratively close proceedings pending Fifth Circuit appeal. The Isolde matter is stayed and remains administratively closed pending the conclusion of the appeal in the Joshua Harman FCA case. Trinity, Mr. Wallace, Mr. Perry, and Mr. Mitchell deny and intend to vigorously defend against the allegations in the Isolde case. Trinity Industries said, "Based on the information available to the Company, we currently do not believe that a loss is probable with respect to this shareholder class action; therefore no accrual has been included in the accompanying consolidated financial statements. Because of the complexity of these actions as well as the current status of certain of these actions, we are not able to estimate a range of possible losses with respect to these matters." Trinity Industries, Inc. provides various products and services to the energy, chemical, agriculture, transportation, and construction sectors in the United States and internationally. The company is based in Dallas, Texas. UNION PACIFIC: Palestine Woman Files Class Action ------------------------------------------------- Taeler De Haes, writing for CBS 19, reports that a Palestine woman is taking legal action against Union Pacific, blaming the company for the loss of her home after the 2016 flood. Cynthia Smalley said her home was gone in less than thirty minutes. "It was like somebody put a water hose in the house and just left it running," she said. "We walked away with two bed frames, and that's it." With tears in her eyes, she looked at the home she celebrated decades of birthdays and anniversaries. "It was heart breaking. That was my -- all five of our children. That was their home. That's all we've known." Smalley filed suit on April 27, alleging the railroad company failed to keep up maintenance of the culverts. The lawsuit showed pictures of closed-off culverts, blocked drainage pipes, and standing water in people's yards. Living there for 23 years, she said her family experienced countless issues with the culverts. "It just created a dam, and it just kept coming, and coming, and coming, and created a big pond on my property," she said. Charles Nichols, Esq. is the lawyer representing Smalley. He said this impacts nearly everyone living near the railroad tracks, which he estimates to be at least 100 people. When water stays down there for days, Charles said it attracts mosquitos and other bugs that can cause health-related issues if not taken care of. "[Union Pacific needs] to make a determination if they can clean that culvert, or enlarge that culvert," he said. "If that's not economically feasible for them, they have the option of abandoning that track." Smalley reached out to Union Pacific after the flood, and said they have made no attempt to compensate her family, or make changes to the culvert. Union Pacific spokesperson Jeff DeGraff declined to comment about the issue in Palestine. Looking at what remains, Smalley just wants answer, so that what happened in 2016 does not happen again. "Why did you not maintain your drainage systems," she asked. "So that nobody else in this community has to bury four children and a grandmother." [GN] UNITED STATES: Houstounians File Claims v. Corps of Engineers ------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that Houstonians whose homes were flooded when runoff from Tropical Storm Harvey backed up behind two dams built and managed by the Army Corps of Engineers urged a federal judge on May 16 to let their takings claims proceed. The Barker and Addicks dams straddle Interstate 10, 20 miles west of downtown Houston. The Corps of Engineers built them in the 1940s to hold back the city's main waterway, Buffalo Bayou. The United States faces 85 lawsuits in the Court of Federal Claims from homeowners and renters who say government officials knew that heavy rainfall captured by the dams would flood their homes, but did nothing to stop development in the area or warn them about the risk. They say that when the Corps of Engineers built the dams it acquired land in the reservoirs expected to flood during a 100- year storm: property with a 1 percent chance of flooding in any given year. But it designed the reservoirs to hold much more water than that, thus putting at risk the subdivisions, schools and businesses that were built behind the dams over the years. Enter Tropical Storm Harvey, a 1,000-year event that dumped more than 51 inches of rain on parts of Houston when it stalled over the city last August. During less severe storms, the Corps of Engineers focuses on protecting homes below the dams along Buffalo Bayou. So it lets storm water build up behind the dams and slowly releases it downstream. But with Buffalo Bayou swollen to record levels by Harvey, flooding homes on its banks in the days during and after the storm, the Corps of Engineers stored 380,000 acre-feet of Harvey storm waters behind the dams for 10 days, which swamped homes with up to 5 feet of water, the plaintiffs say in their master amended complaint. The flood pool was close to the dams' maximum 410,000 acre-feet storage capacity. An acre-foot is enough water to cover one acre a foot deep: 325,853 gallons. In city planning, an acre-foot is estimated to be enough water to supply a typical suburban family home for a year. At a hearing at the Houston federal courthouse on May 16, Justice Department attorney Jacqueline Brown told Court of Federal Claims Judge Charles Lettow that homeowners cannot prove a Fifth Amendment takings claims because Harvey was an isolated event, not likely to happen again. "Plaintiffs cannot state a claim for taking when flooding has not been substantial and frequent," she said. Brown said the homeowners should be applying for storm relief aid from federal agencies, not making their case in court. "That plaintiffs cannot state a claim for taking does not mean the U.S. is unsympathetic to them and the more than 100,000 Houston residents who experienced flooding," she said. "Congress and executive agencies have brought about billions of dollars in hurricane relief and that is the appropriate way for relief in the aftermath of this unprecedented storm." Reiterating statements she made in a Feb. 16 motion to dismiss, Ms. Brown said the government should not be held liable because by deciding to hold water behind the dams, the Corps of Engineers was trying to minimize harm in an emergency. "Plaintiffs implicitly maintain that the Corps should have directed floodwaters elsewhere -- elsewhere being onto some other person's private property -- in order to protect plaintiffs' own property," the motion states. It continues: "But the Fifth Amendment is not a constitutional flood insurance policy. No taking arises where, as here, the government is merely acting to mitigate or minimize an inevitable harm to the public." With 50 people watching from the gallery, Ms. Brown said the homeowners' takings claims fail because they bought property in areas at heightened risk of flooding, and the statute of limitations has expired, as the dams were built 70 years ago. Besides, Ms. Brown said, takings cannot be based on the government's inaction: its decision not to buy all the land in the reservoirs' maximum flood pools. The Court of Federal Claims has jurisdiction over lawsuits seeking monetary damages against federal agencies. There is a six-year statute of limitations on such claims. Ian Gershengorn, co-lead counsel for the upstream plaintiffs, accused the government of trying to complicate a straightforward case. The Court of Federal Claims is also handling 116 lawsuits from people whose homes flooded downstream from the dams. It has divided the litigants into upstream and downstream groups. "The government built and operated dams that worked just as the government intended during Tropical Storm Harvey," said Mr. Gershengorn -- igershengorn@jenner.com -- a partner in Jenner & Block in Washington, D.C., who served for six months as acting U.S. solicitor general under President Barack Obama. "They captured billions of gallons of water headed for downtown Houston, and they stored that water on plaintiffs' property. That in turn caused massive destruction, dislocation and disruption for the plaintiffs. . . . And that is a clear physical taking of plaintiffs' property that requires compensation," Mr. Gershengorn said. Mr. Gershengorn said the government's claim that the statue of limitations expired misinterprets the law. "The rule is very simple, and it's the same in federal and state law: The owner of the property at the time the takings claim accrues gets to bring the takings claim," he said. Judge Lettow flew out from Washington for the one-day hearing. He said he had yet not seen the Barker and Addicks dams and the flooded neighborhoods in person. The earthen dam embankments are massive: Barker spans more than 13 miles and Addicks a little over 11 miles. In some areas, the structures blend into the landscape as hilltop bike trails. "I hope your honor gets to see the properties at some point, as I had a chance to do," Mr. Gershengorn said. "What you're talking about is what we in the D.C. area would think of as a relatively modest bump in the road, the dams. The plaintiffs' homes are often miles away. And there are residences, there are golf courses, there are schools, there are Starbucks. This is not a situation in which the plaintiffs are coming in and saying, 'Well, there's this big dam there, no biggie.'" William Baber, 64, owns home in a subdivision behind the western edge of Barker Dam. "It was terrible. It was unbelievable. They had to take me out by helicopter. The water was up to here," the 6-foot Baber said after the hearing, holding his hand up to his chest. "I've been there 18 years and never had this happen. It did not flood until they closed the reservoir. I mean Harvey had come and gone. It wasn't Harvey that did it: The engineers did it." UNITED STATES: Forest Service Faces Sexual Harassment Lawsuit ------------------------------------------------------------- Aimee Lutkin, writing for Jezebel, reports that women working in the U.S. Forest Service are coming forward to talk about sexual harassment they've experienced while battling forest fires in remote locations and the pervasive culture of misogyny that their workplace permits. The Guardian interviewed a number of women working in the National Park Service and US Forest Service's wildfire operations, among them many woman who are participating in a class action lawsuit filed in California against the fire service on behalf of female firefighters. Their stories are disturbing in themselves, but the response from supervisors show how a lack of accountability increased the danger for women employees. In 2009, Denise Rice -- a firefighter for 20 years -- says a second-in-line supervisor began sexually harassing her. For two years, she endured it: "He'd get handsy and then I'd snap and make him back off and it would stop for a while, and then it would start up again." But in 2011, the two got into an argument and he assaulted her, poking her breasts with a letter opener, as she related in 2016 testimony before a congressional committee examining sexual harassment and gender discrimination in the US Department of Agriculture, which oversees the forest service. The man did it "with a smile on his face in an arrogant way like he could get away with it. And I stood there in shock." The congressional committee that heard Ms. Rice's story vocalized outrage -- but that very year, her alleged harasser was invited to give a motivational speech to other firefighters and, as Rice would eventually discover, was allowed to retire with full benefits. Meanwhile, Rice says she is still experiencing backlash at work for speaking out. Elisa Lopez-Crowder went from the Navy to working for the Forest Service in 2010. Initially, she felt comfortable with her team, but when a new crew-captain joined her group: "The racist and sexist comments began almost immediately. He told me flat-out that he didn't believe women belonged in fire," she says. Ms. Lopez-Crowder is Mexican-American, and he would say things like "Is your skin dirty, or is that just your skin color?" One day as the crew dug trenches, the assistant captain -- annoyed that she was ignoring her comments -- grabbed her by the pack, threw her to the ground and stepped on her. She and a fellow colleague reported the incident, but despite assurances from her superiors, it took a full year and a half for the man to leave the fire service. The Forest Service has invited an outside agency to investigate harassment allegations, and opened a reporting center. Vicki Christiansen, the new U.S. Forest Service chief, told the Guardian, "We know only strong and unambiguous action will get us to where we want to be." [GN] UNITYPOINT HEALTH: Faces Class Action Lawsuit Over Data Breach -------------------------------------------------------------- Ed Treleven, writing for Wisconsin State Journal, reports that UnityPoint Health, which operates Meriter Hospital in Madison, delayed reporting a data breach and falsely told patients that information stolen during the breach did not include their Social Security numbers, according to a federal class-action lawsuit filed on May 4. The lawsuit, filed in U.S. District Court in Madison, concerns a reported data breach discovered by UnityPoint in February that may have compromised patient data as far back as Nov. 1. The lawsuit states the breach was the result of a "phishing attack" of employee email accounts that compromised the protected health information of at least 16,429 people. UnityPoint notified patients in mid-April of the breach, but the lawsuit states that UnityPoint "misrepresented the nature, breadth, scope, harm, and cost of the privacy breach" when it claimed "the (stolen) information did not include your Social Privacy number" and that it had "no information to date indicating that your protected health information involved in this incident was or will be used for any unintended purposes." The lawsuit accuses UnityPoint of waiting for more than two months after the breach was discovered before notifying the public and regulators. UnityPoint, based in Iowa, declined to comment. One of those affected by the breach, Yvonne Mart Fox, of Middleton, the lead plaintiff, states in the lawsuit that she has experienced daily anger and sleep disruption as a result of the data breach, which makes it "feel like I'm having surgery in public." Fox began to notice in early 2018 an increase in the number of robocalls on her cellphone and landline, along with spam emails, that bothered her with unsolicited marketing contacts. After receiving UnityPoint's letter about the data breach in April, Fox spoke with a UnityPoint employee and was told repeatedly that she "should take steps to protect her information." Fox did not get a straight answer when asked whether UnityPoint would pay for any of those precautionary measures, the lawsuit states. Subsequent contacts with UnityPoint didn't gain her any more information, just others telling her, "We are sorry, please take precautions to protect your information." UnityPoint finally told Fox it would take no further remedial action or provide further help or compensation, the lawsuit states. The lawsuit seeks compensatory, punitive and other damages from UnityPoint along with restitution to patients, among several other demands. The lawsuit characterizes personal health information as "one of the most valuable commodities on the criminal information black market," worth 10 times the value of personal credit card data because it can be easily used to buy and re-sell medical equipment and drugs, create fake identification and file false claims with insurers.[GN] VALEANT PHARMACEUTICALS: Appeal Court Tosses Cold-FX Case Appeal ---------------------------------------------------------------- Beth Leighton, writing for The Canadian Press, reports that British Columbia's highest court has dismissed an appeal from a Vancouver Island man who hoped to certify a class-action lawsuit against the makers of the cold and flu product Cold-FX. Don Harrison wanted the B.C. Court of Appeal to overturn a lower court ruling that found, in part, that he failed to accurately identify a class of people who were concerned about the marketing of the ginseng-based natural remedy. In a unanimous decision, a three-justice panel of the Appeal Court says Mr. Harrison's efforts to overcome some of the problems with his case identified by the lower court are "insufficient" and "come too late" to be taken into account. Mr. Harrison launched his legal action in 2012 against Valeant Pharmaceuticals Inc. and its subsidiary that makes Cold-FX, Afexa Life Sciences Inc., over advertising that said the product offered "immediate relief of cold and flu symptoms" if taken over a three-day period at the first sign of illness. He sought restitution for amounts that he and others spent on the product, alleging Valeant misrepresented the product, although those assertions have not been tested in court. In dismissing the case, the Appeal Court says there have been repeated efforts by Mr. Harrison and his lawyer to refine the scope of the class action. But after six years and at least as many drafts of a notice of civil claim, Justice Harvey Groberman writes it is "entirely impractical to use the new definition" of the class that was produced for the Appeal Court. In an 18-page judgment released on April 30, Justice Groberman says that while the proposed new definition of the class eliminates consumers who may have bought Cold-FX when its packaging didn't carry the alleged misrepresentations, the wording still falls short. "It does not include a requirement that the purchaser have read the misrepresentations, or have relied on them. More importantly, it does not contain any requirement that the person purchased or used the product for the purpose of immediate relief of cold or flu symptoms," Justice Groberman writes on behalf of the three justices. During the proposed class period between 2002 and 2012, the court found Cold-FX was sold in a total of 14 formats, ranging from bottles to blister packs, and each one carried different descriptions and wording. It would be "fanciful" to expect consumers to recall the precise representations included on the packages, writes Justice Groberman. "Given the number of different packages and the frequency of changes in the representations, the practical difficulties of placing individuals within or outside of the class will be insurmountable," he says. The justices concur that if the case were certified as a class action, each of the class members would likely have to be quizzed about how they purchased Cold-FX and whether they relied on its claims of immediate relief when they bought it. Justice Groberman also questions whether a class proceeding was Harrison's best choice, pointing to case law involving matters where "different representations are made to different persons in different circumstances." "A class proceeding will often not be appropriate because of the need for detailed individual assessments of circumstances," Justice Groberman concludes. [GN] VICTORY PARK: Faces "Gibbs" Suit in N.D. Texas ---------------------------------------------- A class action lawsuit has been filed against Victory Park Capital Advisors, LLC. The case is styled as Darlene Gibbs, Stephanie Edwards, Lula Williams, Patrick Inscho, Lawrence Mwethuku, on behalf of themselves and all individuals similarly situated, Plaintiffs v. Victory Park Capital Advisors, LLC, Victory Park Management, LLC, Scott Zemnick, Jeffrey Schneider and Thomas Welch, Defendants, Case No. 18-03072-hdh (N.D. Tex., May 16, 2018). Victory Park Capital Advisors, LLC is an Investment company in Chicago, Illinois.[BN] The Plaintiffs are represented by: Leonard Bennett, Esq. Consumer Litigation Associates, P.C. 763 J. Clyde Morris Blvd., Suite 1A Newport News, VA 23601 Tel: (757) 930-3660 Fax: (757) 930-3662 Email: lenbennett@clalegal.com - and - Andrew Guzzo, Esq. Kelly & Crandall, PLC 3925 Chain Bridge Road Fairfax, VA 22030 Tel: (703) 424-7576 Fax: (703) 591-0167 Email: aguzzo@kellyandcrandall.com - and - Elizabeth Hanes, Esq. Consumer Litigation Associates, P.C. 763 J. Clyde Morris Blvd., Suite 1A Newport News, VA 23601 Tel: (757) 930-3660 Fax: (757) 930-3662 Email: elizabeth@clalegal.com - and - Kristi Cahoon Kelly, Esq. Kelly & Crandall, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-1579 Email: kkelly@kellyandcrandall.com - and - Craig Carley Marchiando, Esq. Consumer Litigation Associates 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Tel: (757) 930-3660 Fax: (757) 930-3662 Email: craig@clalegal.com - and - Casey S. Nash, Esq. Kelly & Crandall, PLC 3925 Chain Bridge Road Ste 202 Fairfax, VA 22030 Tel: (703) 640-3334 Fax: (703) 591-0167 Email: casey@kellyandcrandall.com - and - James Wilson Speer, Esq. Virginia Poverty Law Center 919 E Main Street, Ste. 610 Newport News, VA 23219 Tel: (804) 782-9430 Fax: (804) 649-0974 Email: jay@vplc.org VIDEOTRON LTEE: Settlement Negotiations in "Benabu" Suit Ongoing ---------------------------------------------------------------- Spark Networks SE said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the parties in the case Stephanie J. Benabu vs. Videotron Ltee and Affinitas GmbH, et al., are in settlement negotiations. On August 1, 2016, Affinitas was served with a copy of an application to bring a class action lawsuit and to appoint the status of representative plaintiff filed with the Superior Court of the District of Montreal. The potential suit relates to the practice of automatically renewing the services provided to Canadian users of Affinitas's products at standard pricing after a discounted trial period without active consent by the consumer. Affinitas ceased engaging in these practices and is currently in settlement negotiations with the plaintiffs. The settlement currently contemplated would not have a material adverse effect on the business, results of operations or financial condition of Affinitas. Spark Networks SE is a leading global operator of premium online dating sites and mobile applications. Its focus is on catering to professionals and highly educated singles with serious relationship intentions in North America and other international markets. WAGEWORKS INC: Kaskela Files Shareholder Class Action ----------------------------------------------------- Kaskela Law LLC disclosed that a shareholder class action lawsuit has been filed against WageWorks, Inc. (NYSE:WAGE) ("WageWorks" or the "Company") on behalf of purchasers of the Company's securities between May 6, 2016 and March 1, 2018, inclusive (the "Class Period"). WageWorks investors are encouraged to visit www.kaskelalaw.com/case/wageworks-inc/ to receive additional information about this action and submit their information online. Investors may also contact attorney D. Seamus Kaskela at (888) 715 - 1740, or via email at skaskela@kaskelalaw.com, to discuss their legal rights and options with respect to this action. On March 1, 2018, WageWorks disclosed that it was delaying the filing of its fiscal 2017 Annual Report with the SEC. Following this news, shares of the Company's common stock declined $9.75 per share, or over 18.5%, to close at $42.70 on March 1, 2018. The following day the Company reported that it "has concluded that it has a material weakness in its internal control over financial reporting . . . related to managing change and assessing risk in the areas of non-routine and complex transactions." Additionally, the Company disclosed that its Audit Committee was investigating "certain issues, including revenue recognition, related to the accounting for a government contract during fiscal 2016 and associated issues with whether there was an open flow of information and appropriate tone at the top for an effective control environment." The shareholder class action complaint alleges that WageWorks and certain of its executive officers made a series of false and misleading statements and/or failed to disclose to investors that: (i) there were material weaknesses in WageWorks' systems of internal controls, and that the Company's practices and controls were ineffective; (ii) WageWorks had failed to adequately manage and assess risk relating to certain complex transactions, including certain government contracts; (iii) WageWorks had improperly recognized revenue, thereby inflating its earnings and related financial metrics; and (iv) WageWorks' financial statements were materially false and misleading at all relevant times. The complaint further alleges that, as a result of the foregoing, investors purchased WageWorks' common stock at artificially inflated prices during the Class Period. Investors who purchased WageWorks securities during the Class Period may, no later than May 8, 2018, seek to be appointed as a lead plaintiff representative of the class through Kaskela Law or other counsel, or may choose to do nothing and remain an absent class member. In order to be appointed as a lead plaintiff a class member meet certain legal requirements D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (888) 715 - 1740 Website: www.kaskelalaw.com E-mail: skaskela@kaskelalaw.com [GN] WELLS FARGO: Settles Fake-Accounts Lawsuit for $480MM ----------------------------------------------------- Hannah Levitt, writing for Bloomberg, reports that Wells Fargo & Co. agreed to pay $480 million to settle a class-action lawsuit in which investors accused the bank of securities fraud related to its fake-account scandal. The settlement resolves the main class-action suit brought by shareholders targeting the bank's allegedly deficient disclosures related to its sales practices. It had previously set aside reserves for the settlement, according to a regulatory filing on May 4. Wells Fargo said in a statement that it denies the allegations in the suit. "Moving to put this case behind us is in the best interest of our team members, customers, investors and other stakeholders," Chief Executive Officer Tim Sloan said in the statement. This is the latest cost for Wells Fargo from a consumer banking scandal that arose in September 2016. That issue, in which employees opened as many as 3.5 million bogus accounts, ultimately cost then-CEO John Stumpf his job. The bank still faces a bevy of other lawsuits on related matters. The San Francisco-based bank settled with the Office of the Comptroller of the Currency and the Consumer Financial Protection Bureau for an unprecedented $1 billion to cover issues in auto lending and mortgages. In February, the Federal Reserve imposed a sanction prohibiting the bank from boosting total assets beyond their level at the end of 2017 until it fixes shortcomings. The lender said in a filing on May 4 that "reasonably possible" legal charges could be as high as $2.6 billion beyond reserves as of March 31. This is down from $2.7 billion in the previous quarter. Wells Fargo executives are set to update analysts and shareholders on financial targets and regulatory matters at an investor day scheduled for May 10. The shareholder case is Hefler v. Wells Fargo & Co., 3:16-cv- 05479, U.S. District Court, Northern District of California (San Francisco).[GN] WELLS FARGO: Union Investment Achieves Recovery for Shareholders ---------------------------------------------------------------- Union Investment, one of Europe's largest asset management firms and the Court-appointed Lead Plaintiff in a federal securities class-action lawsuit against Wells Fargo & Co. ("Wells Fargo"), proudly announces that it has achieved a settlement of $480 million in cash to resolve its claims against the Defendants. The Settlement, which remains subject to court approval and ongoing diligence discovery, provides a significant cash recovery in comparison to the likely recoverable damages had the case been pursued through a lengthy jury trial and appeals, represents the fourth largest securities settlement ever achieved in the Ninth Circuit, and the 31st largest securities settlement ever in the United States. "As long term investors in Wells Fargo and thousands of other portfolio companies across the world, we take action to rectify misconduct that raises significant public policy concerns and severely harms public stock market investors," said Union Investment Executive Board Member Dr. Andreas Zubrod. Union's Complaint, pending in the United States District Court for the Northern District of California, alleged that Wells Fargo and certain current and former officers and directors of Wells Fargo made a series of materially false statements and omissions in connection with Wells Fargo's secret creation of fake or unauthorized client accounts in order to hit performance-based compensation goals. Those alleged false statements artificially inflated the price of the Company's common stock during the Class Period from February 26, 2014 through September 20, 2016. After years of presenting a business driven by legitimate growth prospects, U.S. regulators revealed in September 2016 that Wells Fargo employees were secretly opening millions of potentially unauthorized accounts for existing Wells Fargo customers. The complaint alleged that these accounts were opened in order to hit performance targets and inflate the "cross-sell" metrics that investors used to measure Wells Fargo's financial health and anticipated growth. When the market learned the truth about Wells Fargo's violation of its customers' trust and failure to disclose reliable information to its investors, the price of Wells Fargo's stock dropped, causing substantial investor losses. As Dr. Zubrod added: "Fabricating customer accounts and then concealing how those fake accounts impacted cross-sell metrics is simply unacceptable and undermines the trust that Union Investment and other investors put in Wells Fargo's management. We are pleased that with this settlement, Wells Fargo is taking an important step towards reckoning with its prior mistakes and focusing on creating value for its investors while acting with integrity." The Settlement to be paid is in addition to the $185 million penalty collectively imposed on Wells Fargo by the CFPB, the U.S. Office of the Comptroller of the Currency, and the City and County of Los Angeles for Wells Fargo's underlying misconduct, and demonstrates the continuing need for private litigation to supplement government enforcement actions. As noted, the Settlement is subject to further documentation, ongoing due diligence, review, and Court approval. Union Investment is headquartered in Frankfurt, Germany, and manages over 325 billion EUR (ca. 400 billion USD). Union Investment was represented by Lead Counsel Bernstein Litowitz Berger & Grossmann LLP. Union Investment Dr. Sinan Temelli Telephone: +49-69-25672935 E-mail: sinan.temelli@union-investment.de Bernstein Litowitz Berger & Grossmann LLP Alexander Coxe, Esq. Telephone: 212-554-1423 E-mail: alex@blbglaw.com[GN] WHITE PLAINS HOSPITAL: Faces "Picon" Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against White Plains Hospital Medical Center. The case is styled as Yelitza Picon and on behalf of all other persons similarly situated, Plaintiff v. White Plains Hospital Medical Center, Defendant, Case No. 1:18- cv-04369 (S.D. N.Y., May 16, 2018). White Plains Hospital is a general medical and surgical, non- profit hospital located in White Plains, New York. In addition to providing general care to patients, it also operates a number of specialized programs, such as its cancer center.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Tel: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com WYNN LAS VEGAS: Employees File Class Action Over Tip Policy ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Wynn Las Vegas casino illegally forces employees to kick back to management a percentage of their tips, an estimated class of 500 workers says in a federal class action. Attorneys for Plaintiffs: Leon Greenberg, Esq. A Professional Corporation 2965 South Jones Boulevard #E-3 Las Vegas, Nevada 89146 Tel: (702) 383-6085 Fax: (702) 385-1827 -- and -- Mark R. Thierman, Esq. THIERMAN LAW FIRM 7287 Lakeside Drive Reno, NV 89511 Tel: (775) 284-1500 -- and -- James P. Kemp, Esq. KEMP & KEMP, ATTORNEYS AT LAW 7435 West Azure Drive, Suite 110 Las Vegas, NV 89130 Tel: (702) 258-1183 -- and -- Robin Potter, Esq. 111 E. Wacker Drive, Suite 2600 Chicago, IL 60601 Tel: (312) 861-1800 XUNLEI LTD: Faces Securities Class Suit Related to OneCoin ---------------------------------------------------------- Xunlei Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017, that the company is facing a shareholder consolidated class action suit entitled, In re Xunlei Limited Securities Litigation. In January 2018, two putative shareholder class action lawsuits were filed in the United States District Courts for the Southern District of New York against Xunlei and certain of its current and former officers and directors: Dookeran v. Xunlei Limited, et al. (filed on January 18, 2018, Case No: 18-cv-467 (S.D.N.Y.)), and Peng Li v. Xunlei Limited, et al. (filed on January 24, 2018, Case No. 18-cv-646 (S.D.N.Y.)). Purporting to sue on behalf of all investors who purchased or acquired Xunlei stock from October 10, 2017, to January 11, 2018, Plaintiffs allege that certain statements regarding OneCoin (now called "LinkToken") in the Company's press releases and on a quarterly investor call were false and misleading because, among other things, they failed to disclose that OneCoin was a disguised "initial coin offering" and "initial miner offering" and constituted "unlawful financial activity." Plaintiffs seek to recover under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 thereunder. On April 12, 2018, the court consolidated the actions under the caption In re Xunlei Limited Securities Litigation, No. 18-cv-467 (RJS), and appointed lead plaintiffs and lead plaintiffs' counsel. The proceedings are still at an early stage, and the consolidated amended complaint has not yet been filed. Given the early stage of the proceedings, no provision in respect of these putative class action lawsuits is considered necessary apart from the legal fee to be accrued in 2018 according to ASC450-20-25, which requires an estimated loss from a loss contingency be accrued by a charge to income if both probable and reasonably estimable. Xunlei Limited is a leading cloud-based acceleration technology company in China. Xunlei operates a powerful internet platform in China based on cloud computing to provide users with quick and easy access to digital media content through its core products and services, Xunlei Accelerator and the cloud acceleration subscription services. * Jackson Lewis Issues Class Action Trends Report ------------------------------------------------- Jackson Lewis P.C. released the latest issue of Jackson Lewis Class Action Trends Report. This report is published on a quarterly basis by the firm's class action practice group in conjunction with Wolters Kluwer. A full-text copy of the Trends Report is available at https://is.gd/NdJ6UY [GN] * Oil Sector Hot Bed of IC Misclassification Class Actions ---------------------------------------------------------- Michael Rose, Esq. -- mrose@lockelord.com -- Richard Reibstein, Esq. -- rreibstein@lockelord.com -- and Bill Swanstrom, Esq. -- bswanstrom@lockelord.com -- of Locke Lord, in an article for E&P, wrote that a cottage industry for plaintiffs' class action lawyers has been independent contractor (IC) misclassification lawsuits, and one of the industries taking the brunt of those types of legal proceedings is energy, particularly companies that operate in the oil patch. In the oil and gas industry, companies have recently been making use of ICs to provide specialized talent for limited project needs, reduce their reliance on a static workforce and shrink their payroll costs. IC misclassification is not more prevalent in the oil and gas fields than it is in other industries; it just seems as though class action lawyers have been targeting this area of the energy arena in the last few years. What can large and small companies that use ICs in the oil fields do to minimize any such IC misclassification liability and maximize their compliance with federal and state IC laws? Before answering those questions, we will comment on some recent cases affecting companies in the oil and gas industry to give you an idea of the types of IC misclassification challenges that are afflicting companies in this industry. Rig welder brings class action for IC misclassification. This case involves a modest-size oil E&P company, Whiting Petroleum, which was sued last year in Colorado in a proposed class action by a rig welder who claims he and other similarly situated workers were misclassified as independent contractors in violation of the federal Fair Labor Standards Act (FLSA). The company filed a motion to dismiss the case but a federal court denied the motion. Whiting has denied the claims, and the case was scheduled for mediation in an effort to settle the case. Well site managers sue large energy company for misclassifying them as ICs. This case against Chevron Corp. was brought last year in California by oil and well site drilling managers who were paid on a 1099 basis but claim they were misclassified as ICs and denied minimum wage and overtime under the FLSA. The drill site managers made a motion to have the case certified by the court as a class action -- and they prevailed, over the strenuous opposition of Chevron. Oilfield workers monitoring wells settle their IC Misclassification case for $2 million. Flow testers who monitored oil and gas wells brought a lawsuit against J&A Services LLC, an Oklahoma oil patch company, alleging that they were misclassified as ICs in violation of the FLSA. After substantial pre-trial discovery, the parties consented to enter mediation, where J&A agreed to settle the case with 71 workers for $2 million. Welders for a Chinese oil rig company sue for IC misclassification. Honghua America LLC was sued in Texas by two welders who claimed they were misclassified as independent contractors in violation of the FLSA. Two months after the court denied Honghua's motion for summary judgment, the company settled the case for an undisclosed amount. What can a company in the oil and gas industry do to minimize IC misclassification liability? Class action lawyers have not diminished their focus on these types of lawsuits against companies in the oil and gas industry. For example, in January 2018, another proposed class action lawsuit was filed against a company by MWD operators paid on a 1099 basis. They allege they and other similarly situated MWD operators have been misclassified as ICs and not paid overtime for all hours worked over 40 in a workweek in violation of the federal wage and hour laws. The threshold inquiry by any company using ICs should be whether the workers in question are suitable candidates for payment on a 1099 basis. Not all workers are, and he tests for IC status vary dramatically between the states and there are different tests under various federal statutes. Unlike employees, who are subject to being told "how" to do their work, the most important factor in determining IC status is whether the workers themselves decide the manner and means by which they render services, consistent of course with industry standards and any legal or client requirements. Even if the workers in question may qualify as ICs, companies all too often create their own exposure to IC misclassification if they fail to properly structure, document, and implement their IC relationships in a manner that complies with IC laws. This is where a comprehensive process, such as IC Diagnostics, can be effectively deployed, assessing well over 48 factors bearing on workers' IC status before an IC relationship is established -- or, if it is already in existence, determining how it can be restructured, re-documented and re-implemented to minimize IC misclassification exposure. The tests for IC status have plagued legal practitioners and companies for years. Although the laws oftentimes require companies to dot many i's and cross many t's, a great number of the factors bearing on IC status are counter-intuitive. What can happen to a company that does not structure or document its IC relationships in a manner that enhances compliance? The results can be costly, such as what happened to one of the country's Fortune 500 companies, FedEx. The wording of its independent contractor agreement covering its Ground Division drivers was held by two federal appellate courts as creating an employment relationship as a matter of law. As a result, FedEx was forced to settle several dozen IC misclassification cases for nearly $500 million in the past several years. What is a company in the oil patch to do? There are no shortcuts or "quick fixes" when seeking to enhance IC compliance, and "one size fits all" solutions are likely to be ill-fitting. Companies that rely on ICs should seek out sustainable solutions that offer state-of-the-art approaches to enhancing IC compliance. While such an approach is more time-intensive, a customized approach is far more likely to effectively minimize IC misclassification exposure. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *