/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180702.mbx C L A S S A C T I O N R E P O R T E R Monday, July 2, 2018, Vol. 20, No. 131 Headlines 27 WH BAKE: Court Approves Deal in "Gonzales" FLSA/NYLL Suit 145 LUND LLC: Faces "Alvarado" Suit over Rent Increase A-1 SELF STORAGE: Cal. High Ct. Sustains Demurrer to "Heckart" A. RECKNAGEL INC: Shareholders Seek to Retrieve Company Books A.P. EXPRESS: Doesn't Pay OT to Drivers, "Mejia" Suit Says AARGON AGENCY: Delgado Sues over Debt Collection Practices ADKINS AUTO: Court Issues Protective Order in "Luna" FCRA Suit ADT SECURITY: Bid to Replace Named Plaintiff in "Kimble" Denied AIR EVAC EMS: Underpays Flight Paramedics, Riegelsberger Claims AKERS BIOSCIENCES: Faces Securities Class Action ALERE INC: Ct. Won't Review "Andren" Class Certification Denial ARIZONA: 9th Cir. Likely to Revive Racial Discrimination Lawsuit AUSTRALIA: Funding Secured for PFAS Suit Against Defense Dept. AUSTRALIA: NSW Police Faces Lawsuit Over Sniffer Drug Operation BAKER CONCRETE: Fails to Pay Proper Wages, "Ontiveros" Suit Says BANCO SANTANDER: Rigged Mexican Bond Sales, VI Employees Claim BANK OF AMERICA: Fails to Pay Proper Wages, "Tripes" Suit Says BANK OF AMERICA: Greensfelder Attorney Discusses Court Ruling BEST BUY CO: Faces "Lavera" Suit in Hennepin County BEST DOCTORS INC: Made Unsolicited Calls, Kenneth Thomas MD Says BEVERLY HEALTH: $450K Settlement in "Ahmed" Has Final Approval BIOGEN INC: Metzler Asset Appeals D. Mass. Ruling to 1st Circuit BJ'S ON THE WATER: Doesn't Pay OT to Server, "Kusel" Suit Alleges BOCAS HOUSE: Removes "Alvarado" Suit to S.D. Florida BOLLA OPERATING: Benitez Seeks Unpaid Spread-of-Hours Pay BUCKEYE INC: Doesn't Pay OT to Fluid Technicians, Bernstein Says BUFFALO, NY: Court Dismisses Amended "Burgin" BUMBLE BEE: Settlement in "Rodriguez" Suit Has Final Approval BURGER MAKER: Doesn't Pay OT to Grind Supervisors, "Lopez" Claims CANADA: BSE Class Action Ongoing, Trial Expected by Next Fall CAPITAL MANAGEMENT: Campbell Alleges Wrongful Debt Collections CAPITAL MANAGEMENT: Kolbasyuk Appeals Order, Judgment to 2nd Cir. CAVIAR: Settles Class Action Over Gratuity for $2.2 Million CENTRAL TIRE: Underpays Automobile Mechanics, "Allejo" Suit Says CENTURY FINANCIAL: Dismissal Orders in "Baker" Reversed CEPHALON INC: UHS MOU Enforceable in Teva Pharma Suit CHARTSWAP LLC: Asher Sues over Excessive Fees for Medical Records CHESAPEAKE BAY: Addt'l Class Notice Bid in "Meuller" Partly OKd CHI MANAGEMENT: Underpays Merchandiser, "Castello" Suit Says CHINA AGRITECH: Limitation Period Tolled for Individual Claims CHINA AGRITECH: Obtains Favorable Ruling in Securities Case CHINA AGRITECH: SCOTUS Issues Unanimous Decision in Tolling Issue CHINA AGRITECH: Winston & Strawn Attorneys Discuss SCOTUS Ruling CHRISTIAN'S BAKERY: Doesn't Pay OT to Bakers, Meza-Vazquez Says CLEAR AIR TECHNOLOGIES: Underpays Cleaners, Lysakowski Claims COASTWAY BANCORP: Rigrodsky & Long Files Securities Class Action COINBASE INC: Arbitration of Cryptocurrencies Suit Denied COINBASE INC: Leidel Class Suit to be Ruled in Open Court CONTINENTAL CASUALTY: Confidentiality Order in Deal Issued CORELOGIC SAFERENT: Mitchell Appeals Ruling in "Witt" to 4th Cir. CENTRAL IOWA: Settles Class Action Over Bed Bug Infestation DELIV INC: Doesn't Pay Wages to Courier, "Lawson" Suit Says DELTA AIRLINES: Removes "Pimental" Suit to E.D. New York DENTAL EQUITIES: Motion to Stay Junk-Fax Class Action Granted DEUTSCHE BANK: Court Issues Mix-Bag Opinion in ERISA Class Action DON VITO OZUNA: Fails to Pay Proper Wages, "Camilo" Alleges DOVER FINANCIAL: Law Firm Mulls Class Action Following Collapse DS PROSPECTING: Made Solicited Calls, "Dawson" Suit Alleges EAST CHICAGO, IN: Bradshaw May Intervene as "Gutierrez" Class Rep EDWARD D. JONES: Faces "Bland" Suit over Race Discrimination EL COCOTERO: Fails to Pay OT to Cooks, "Acosta" Suit Claims ELC BEAUTY: Faces "Wu" Suit in S.D. New York ELONIS RESTAURANT: Underpays Kitchen Staff, "Carillo" Suit Says EMULEX CORP: Court Reverses Dismissal of "Varjabedian" Suit ENVISION HEALTHCARE: Faces Merger Challenges Amid Class Action EPIC BUSINESS: Faces "Williams" Suit over Sale of Essential Oils ETSY INC: 2nd Cir. Affirms Dismissal of "Altayyar" Suit FAST TAX SERVICE: Made Unsolicited Calls, "Broomfield" Suit Says FBCS INC: Allen Sues over Wrongful Debt Collection Practices FIAT CHRYSLER: Wants Judge to Trim Claims Cherokee Defect Suit FILLMORE HOSPITALITY: Underpays Room Attendant, Romero Claims FINISH LINE INC: Barnett Sues over JD Sports Merger Transaction FIRST CONNECT: Made Unsolicited Calls, Fabricant Alleges FLANNY PRODUCTIONS: Pollister Sues over Gender Discrimination FLOWERS HOSPITAL: Settles Patient Data Breach Class Action FORD MOTOR: Fourth Circuit Appeal Filed in "Johnson" Class Suit FREUDENBERG HOUSEHOLD: Fails to Pay OT, "Carrasco" Suit Says FRIEZE NEW YORK: Faces Class Action Over Excessive Heat at Tent FRONTLINE ASSET: Cirruzzo Sues over Debt Collection Practices GCI SOLAR: "Benkert" Sues Over Auto-dialed Telemarketing Calls GEICO GENERAL: Faces "Camme" over Motor Vehicle Insurance Policy GEICO GENERAL: Court Narrows Claims in "Green" Suit GENERAL DYNAMICS: 4th Cir. Affirms Dismissal of "Cunningham" GFI GROUP: Summary Judgment in "Gross" Securities Suit Granted GOLD STANDARD: Court Narrows Claims in Racial Discrimination Suit GOOGLE INC: Simpson Thacher Attorneys Discuss Cy Press Settlement GUESS? RETAIL: "Miranda" Suit Seeks Unpaid Wages, Penalties H MART MIDWEST: Fails to Pay OT to Purchasers, "Lee" Suit Alleges HERTZ LOCAL: Court Grants Discovery Stipulation in "Johnston" HYDRO-QUEBEC: Osler Hoskin Attorneys Discuss Class Action Ruling I.Q. DATA: Made Unsolicited Calls, "Ward" Suit Alleges INDIANA: Ct. Won't Approve Settlement in Inmates' HCV Suit INTEL CORP: "East" CPU Defect Row Transferred to Oregon Dist. Ct. INTER-COAST INT'L: Denial of Arbitration Bid in "Nguyen" Affirmed INVENTION SUBMISSION: Calhoun Sues over Promotion Services ISRAEL: May Have to Reverse Speed Traffic Camera Tickets J.C. PENNEY: Underpays Associate Designers, "Hernandez" Suit Says J.M. HARVEY: Doesn't Pay OT to Kitchen Staff, Rodriguez Says JAFT LLC: Doesn't Pay OT to Servers, "Katz" Suit Alleges JAMES SQUARE: Judge Allows NY Residents to Pursue Class Action JANBAR INC: Underpays Construction Workers, "Cedillo" Suit Says JONES MOTOR: Seventh Circuit Appeal Filed in "Daley" Class Suit KAMRAN STAFFING: Fails to Pay Proper Wages, "Morales" Suit Claims KFF ARBITRATION: Anderson Sues over Debt Collection Practices KNORR-BREMSE AG: Faces "Ochoa" Suit over No-Poach Agreements LAZARD LTD: Faces "Burbon" Suit over Website Access for Blind LEASE AND RENTAL: Garcia Sues over Car Repossession Practices LEGENDS HOSPITALITY: Underpays Bartenders, "Hightower" Suit Says LS & PARTNERS: Underpays Waiters and Servers, "Miller" Suit Says MAIDEN LANE: NY High Ct. Certifies Class in Superstorm Sandy Suit MAJOR LEAGUE: Wants Minor Leaguers' Class Certification Reversed MARVELL TECH: "Luna" Securities Suit Settlement Has Final OK MARVELL TECH: Court Approves Allocation Plan in "Luna" Settlement MAXIM HEALTHCARE: Doesn't Pay OT to Medical Staff, Duran Claims MDL 2617: Special Master Recommends $29MM Attys' Fees, $2MM Costs MDL 2672: Franchise Dealers Can't Compel Withheld Docs Production MDL 2795: Related Securities Suits v. CenturyLink Consolidates MENARD INC: Court Stays "Griffith" FLSA Suit MENDEL MUFFINS: Underpays Factory Bakers, "Loja" Suit Alleges MIAMI-DADE COUNTY, FL: Carillion Condo Owners Can't Sue as Class MICROSOFT CORP: Judge Finds "Fatal" Flaw in Discrimination Case MIDLAND CREDIT: Brecher Sues over Debt Collection Practices MIDLAND FUNDING: Sandoval Alleges Wrongful Debt Collection MIDLAND FUNDING: Court Certifies Class in "Wheeler" FDCPA Suit MIDTOWN CATCH CORP: Underpays Delivery Worker, Suit Alleges MINNESOTA: 8th Cir. Affirms Dismissal of "Foster" Suit MONSTER INC: Settles Class Action Over HDMI Cable Bandwidth MOUNTAIRE FARMS: Responds to Wastewater Violations Class Action MOUNTAIRE FARMS: Baird Mandalas, Schochor File Class Action NATIONAL COLLEGIATE: Removes "Fischer" Suit to E.D. New York NATIONAL CREDIT: Made Unsolicited Calls, "Aleksanian" Suit Claims NEW YORK: EMS Union Sues Fire Dept. over Promotional Practices NEW YORK, NY: Arrestees Claim their Arrest Info Illegally Used NEW YORK, NY: Seeks 2nd Cir. Review of Judgment in "Nnebe" Suit NORMANDY SCHOOLS: Age Discrimination Case Removed to Federal Ct. NRG RESIDENTIAL: Denial of Arbitration Bid in "Griffoul" Reversed NUEVA SAN SALVADOR: Doesn't Pay OT to Server, "Amaya" Suit Claims ONE INC: Warciak Sues over Debt Collection Practices ORION MARINE: Kelly Sues over Debt Collection Practices ORMAT TECHNOLOGIES: Bernstein Liebhard Files Class Action OSIRIS THERAPEUTICS: Settles Investor Fraud Class Action PARAGON INDUSTRIES: Fails to Pay Proper Wages, "Castro" Suit Says PEOPLES UNITED BANK: Faces "Pryzgoda" in S.D. New York PG&E CORP: Aug. 13 Lead Plaintiff Bid Deadline PETEZA PROSE: "Kile" Stayed Pending Ruling in 3 Cases PRODUCTION MGMT: Magistrate Recommends Approval of "Daniels" Suit QUALCOMM INC: Robbins Geller Files Securities Class Action PARAGON INDUSTRIES: Fails to Pay Proper Wages, "Castro" Suit Says PEOPLES UNITED BANK: Faces "Pryzgoda" in S.D. New York RAY KLEIN: "Anderson" Suit Asserts FDCPA Breach RCI HOSPITALITY: Doesn't Pay OT to Dancers, "Godwin" Suit Alleges RCI LLC: Made Unsolicited Calls, "Andrews" Suit Alleges RECRO PHARMA: Faces "Alberici" Suit over Share Price Drop REPUBLIC SERVICES: Faces "Seay" Suit over Waste Disposal Fees RESIDENTIAL FENCES: Fails to Pay Proper Wages, "Miuzzo" Suit Says RIPPLE LABS: Removes "Coffey" Suit to N.D. California ROOSEVELT HOTEL: Underpays Drivers, "Rodriguez" Suit Alleges RWLS LLC: Court Denies Dismissal of "Gandy" NMMWA Class Suit S.C. STATE: Class Action Over Faulty Stucco Installation Resolved SABON WEB LLC: Faces "Wu" Suit in Southern District of New York SAKS & CO: Faces Data Breach Class Action Following Hacking SAMANTHA SANSON: Underpays Exotic Dancers, "King" Suit Alleges SAMUEL I WHITE: Davis Appeals E.D. Virginia Ruling to 4th Circuit SC JOHNSON: Mosquito Repellant Ineffective, "Bourbia" Suit Says SCHLUMBERGER TECHNOLOGY: Court Sets Conference in "Martinez" SCI DIRECT: Doyle Sues over Wrongful Employment Practices SCOTT HOTEL: Court Discharges Show Cause Order in "Kratzer" Suit SI MARKET FRESH: "Alario" Suit Seek For Unpaid Overtime Wages SILVERADO STAGES: Doesn't Pay OT to Drivers, Razani Alleges SIRIUS XM RADIO: Bettison Sues over Radio Subscription Sales SPRINT CORP: Settles Sales Employees' Class Action for $3.65MM STATE FARM: Court Certifies Class in "Vogt" STORCK USA: Judge Dismisses Werther's Underfilling Class Action STRATEGIC LEGACY: Fails to Pay Proper Wages, "Remball" Suit Says SUDLER & CO: Court Grants Bids to Dismiss "Horist" Suit SWEPI LP: Court Denies Summary Judgment Bid in "Walney" Suit SWITCH INC: Rosen Law Firm Files Securities Class Action SYSCO CORP: Class, Subclasses in "Martin" FLSA Suit Certified SZECHAUN TOKYO OF SEA: Underpays Cooks, "Bolanos" Suit Alleges TAPIOCA EXPRESS: EEOC Files Sexual Harassment Class Action TENNESSEE: Court Grants Protective Order in "Abriq" TETRA TECH: Bayview Residents File Fraud Class Suit TIMBERWORKS CONSTRUCTION: Faces "Zaragoza" Suit in Sacramento TLC RESORTS: Made Unsolicited Calls, "Augustine" Suit Alleges TOTAL CARD: "Young" Suit Disputes Collection Letter TRACKER MARINE: Court Upholds Damages in Document Fees Case TRANSWORLD SYSTEMS: Made Unsolicited Calls, "Burke" Suit Claims TULARE, CA: Court Approves $270K "Seguin" FLSA Class Settlement U.S. HOMELAND SECURITY: Faces "Nielsen" Suit in New Jersey UNDER ARMOUR: Removes "Murray" Suit to C.D. California UNITED STATES: Judgment on Pleadings in Suit vs. FEMA Entered UNIVERSITY OF SOUTHERN: Amended Complaint Filed in California UNIVERSITY OF WASHINGTON: Court Certifies Class PRA Request Suit VALEANT PHARMA: "Hound" Securities Fraud Suit Moved to New Jersey VEREIT: Settles Vanguard Suit, Shareholder Class-Action Pending VITALE'S ITALIAN: Fails to Pay Proper Wages, "Torres" Suit Says VOCATIONAL GUIDANCE: Underpays Clerical Employee, Buddie Claims WALGREENS BOOTS: Dismissal of Tax Collection Suit Reversed WALGREENS PHARMACY: Rodarte Sues over Wrongful Termination WATERBURY, CT: Class Action Over Dog Euthanization Plan Denied WE CARE SENIOR: Doesn't Pay OT to Caregivers, "Gentry" Suit Says WINDOWS USA LLC: Underpays Retail Service Managers, Suit Says WPP: Pomerantz Law Firm Mulls Securities Class Action * Class Action Industry in Australia Faces Backlash Over Fees ********* 27 WH BAKE: Court Approves Deal in "Gonzales" FLSA/NYLL Suit ------------------------------------------------------------ In the case, CESAR GONZALES, et al., Plaintiffs, v. 27 W.H. BAKE, LLC, et al., Defendants, Case No. 15 Civ. 4161 (PAC) (HBP) (S.D. N.Y.), Magistrate Judge Henry Pitman of the U.S. District Court for the District of New York granted the parties' joint application to approve their settlement. On March 29, 2018, the Magistrate Judge presided over a settlement conference attended by the parties and their counsel, at which a settlement was reached. The matter is now before him on the parties' joint application to approve their settlement. The Plaintiffs, who worked at the Defendants' restaurant and who were employed for varying periods of time and paid different amounts of wages, brought the action under the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"). The Plaintiffs claim that the Defendants failed to pay them minimum wage during certain periods of their employment, made illegal deductions from their wages based on tips that plaintiffs received and failed to pay plaintiffs overtime premium pay. The Plaintiffs also assert claims based on the Defendants' alleged failure to maintain certain payroll records and to provide certain notices as required by the NYLL. They claim that they are entitled to $411,300 in total damages, exclusive of pre- judgment interest and attorney's fees and costs. Specifically, Bravo claims that he is owed a total $121,600, Flores claims that he is owed a total of $186,000, Perez claims that he is owed a total of $56,700 and Soriano claims that he is owed a total of $47,000. Using these damages figures, Bravo's pro rata share of the total damages claimed is 29.6%, Flores's pro rata share is 45.2%, Perez's pro rata share is 13.8% and Soriano's pro rata share is 11.4%. Following a protracted discussion at the settlement conference of the strengths and weaknesses of the parties' respective positions, the parties agreed to resolve the dispute for the total amount of $135,000 to be paid in six installments. The parties also agreed that the Plaintiffs' counsel will receive one-third of the total settlement amount ($45,000) for attorneys' fees. The amount claimed by each Plaintiff and the net amount that each will received after deduction of legal fees and costs are as follows: Net Settlement Amount Plaintiff Claimed Amount -------------- --------- -------------- $121,600 Hermogenes Bravo $26,608.32 $186,000 Hermenegildo Flores $40,700.22 $56,700 Jose Filemon Perez $12,407.00 $47,000 Tomas Soriano $10,284.46 $121,600 Hermogenes Bravo $26,608.32 Total $411,300 $90,000 In determining whether a proposed FLSA settlement is fair and reasonable, a court should consider the totality of circumstances, including but not limited to the following factors: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's length bargaining between experienced counsel; and (5) the possibility of fraud or collusion. Magistrate Judge Pitman finds that the settlement here satisfies these criteria. First, the total settlement represents approximately 32.8% of the Plaintiffs' total alleged damages, exclusive of pre-judgment interest. Second, the settlement will entirely avoid the expense and aggravation of litigation. Third, the settlement will enable the Plaintiffs to avoid the risk of litigation. Fourth, because he presided over the settlement conference that immediately preceded the Plaintiffs' acceptance of the settlement, he knows that the settlement is the product of arm's-length bargaining between experienced counsel. Both counsel represented their clients zealously at the settlement conference. Fifth, there are no factors here that suggest the existence of fraud. The settlement fund will be distributed to the Plaintiffs on a pro rata basis. In light of number of hours worked by and the hourly rates paid to each Plaintiff, the allocation of the settlement fund is fair and reasonable. The parties have also agreed to execute mutual general releases. Judges in the District have approved FLSA settlements containing mutual general releases. Finally, the settlement provides that 33.3% of the settlement fund -- $45,000 -- will be paid to the Plaintiffs' counsel as a contingency fee. Contingency fees of one-third in FLSA cases are routinely approved in the Circuit. Accordingly, for all the foregoing reasons, Magistrate Judge Pitman approved the settlement in the matter. In light of the settlement, he dismissed the action with prejudice and without costs. The Clerk is respectfully requested to mark the matter closed. A full-text copy of the Court's April 20, 2018 Opinion and Order is available at https://is.gd/ZmFg3P from Leagle.com. Cesar Gonzales, Individually and on behalf of others similarly situated, Juan Jose Gonzalez Diaz, Individually and on behalf of others similarly situated, Hermogenes Bravo, Individually and on behalf of others similarly situated, Hermenegildo Flores, Individually and on behalf of others similarly situated, Jose Filemon Perez, Tomas Soriano & Juan Carlos Diaz Bravo, Plaintiffs, represented by Michael Antonio Faillace -- Michael@Faillacelaw.com -- Michael Faillace & Associates, P.C. & Joshua S. Androphy -- JAndrophy@Faillacelaw.com -- Michael Faillace & Associates, P.C. 27 W.H. Bake, LLC, doing business as Flavors Cafe, AMR Motair, formerly known as Omar Motair, Ramy Motaiyr, formerly known as Ramy Motair & Steve Tenedios, Defendants, represented by Andrew Sal Hoffmann, Hoffmann & Associates. 145 LUND LLC: Faces "Alvarado" Suit over Rent Increase ------------------------------------------------------ VICTORIA ALVARADO and SONNY ALVARADO, individually and on behalf of all others similarly situated, Plaintiffs v. 145 LUND, LLC; FPI MANAGEMENT INC.; SRIDHR EQUITIES, INC; TIKI APTS, LLC, CAROL SANTOS; MARIA RAMIREZ, SANDRA KELLY, WAYNE M. KELLY and BRYAN J. FARRELL and DOES 1-30, Defendants, Case No. RG 18905468 (Cal. Super., Alameda Cty., May 17, 2018) alleges that the Defendants' act of demanding and collecting unlawful rents violated California laws and the City of Hayward's Residential Rent Stabilization Ordinance. According to the complaint, the Defendants violated the City of Hayward's Residential Rent Stabilization Ordinance which provides that landlords are required to provide residential tenants with a copy of the Ordinance; a rent increase notice in compliance with the Ordinance; and provide various documents which must contain specific information required by the Ordinance before a landlord can demand or collect a rent increase. FPI Management, Inc. provides property management services for multifamily properties in Alaska, California, Colorado, Idaho, Montana, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Virginia, and Washington. FPI Management was founded in 1968 and is based in Folsom, California with locations in Costa Mesa, California; and Lynnwood, Washington. [BN] The Plaintiff is represented by: Andrew Wolff, Esq. Tony Ruch, Esq. LAW OFFICES OF ANDREW WOLFF, P.C. 1615 Broadway, 4th Floor Oakland, CA 94612 Telephone: (510) 834-3300 Facsimile: (510) 834-3377 A-1 SELF STORAGE: Cal. High Ct. Sustains Demurrer to "Heckart" -------------------------------------------------------------- The Supreme Court of California affirmed the judgment sustaining Defendant's Demurrer to the First Amended Complaint in the case captioned SAMUEL HECKART, Plaintiff and Appellant, v. A-1 SELF STORAGE, INC., et al., Defendants and Respondents, No. S232322 (Cal.). In its rental agreements with tenants, defendant A-1 Self Storage, Inc., states that it "shall not be liable for loss of or damage to a tenant's stored property, and it requires the tenant to obtain insurance for such losses." A-1 also offers an alternative to the requirement that a tenant obtain insurance: in exchange for an additional $10 in rent each month, A-1 will reassume the risk of such losses, up to $2,500. The first amended complaint alleges that to cover losses incurred by A-1 under the Protection Plan, Deans & Homer sold A-1 a Storage Operator's Contract Liability Policy under which Deans & Homer assumed the liability for all losses under the Protection Plan in excess of $250,000 per year. In April 2013, the plaintiff brought this putative class action on behalf of himself and all others similarly situated, claiming the Protection Plan violates the Unfair Competition Law (Bus. & Prof. Code, Section 17200 et seq; UCL) and the Consumers Legal Remedies Act (Civ. Code, Section 1750 et seq.; CLRA). He also alleged theories of misrepresentation and civil conspiracy. His claims are based on the allegation that the Protection Plan is a policy of insurance, which A-1 is not licensed to sell. The trial court sustained the defendants' demurrer to the first amended complaint based on its conclusion that the Protection Plan is not insurance, and entered judgment for the defendants. The Court of Appeal affirmed the judgment. Both lower courts premised their rulings on the principal object and purpose test, which excludes from insurance regulation transactions that have an element of insurance, where that element is merely incidental to a different principal object and purpose. The lower courts concluded that the Protection Plan was incidental to the principal object and purpose of the parties' transaction, the rental of storage space. The allegations of the operative complaint reflect that A-1 is not acting as an agent of an insurance company. Although Deans & Homer has assisted A-1 with the Protection Plan, Deans & Homer does not provide insurance to renters; rather, the Protection Plan is an agreement between only A-1 and individual renters. Therefore, the procedures and regulations that apply to a self- service storage facility in its role as an insurance agent do not apply to the challenged transaction. Article 16.3 provides that self-storage facilities cannot sell insurance unless licensed as an agent for a licensed insurer. The Insurance Code defines insurance as a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event. Courts have interpreted section 22 as requiring two elements: (1) a risk of loss to which one party is subject and a shifting of that risk to another party; and (2) distribution of risk among similarly situated persons. The Protection Plan meets these criteria: A-1 shifts the risk of losses up to $2,500 from a renter to A-1, and distributes that risk among all renters who purchase the Plan. The Court concluded that assumption of risk by the title company was not the principal object and purpose of the underwriting agreements. Their main function is not to require the underwritten title company to provide insurance, either to the title insurer or to the insured, but instead to require the underwritten title company to perform a title search and examination carefully and diligently as well as to carry out the formalities involved in the issuance of a title insurance policy. The indemnification provisions are secondary to the main object and purpose of the underwriting agreements. In fact, the agreements to indemnify appear to be designed, at least in part, to give the underwritten title companies an incentive to perform their title search in a non-negligent manner, as the title companies are in the best position to eliminate possible risk. Therefore, the title company is not involved in the illegal practice of insurance even if an underwritten title company is deemed to have provided indemnification in connection with the main purpose of its contract with the title insurer. Plaintiff contends that Article 16.3's specific and narrow concern with the sale of hazard insurance by a self-storage facility to renters for loss of or damage to stored property "in connection with, and incidental to, self-service storage rental agreements reflects an intent to apply insurance regulation to any indemnification contracts that are incidental to self-storage rental agreements. In response to the state Supreme Court's invitation to address the issues presented, the Insurance Commissioner has urged the Court to conclude that the Legislature intended to regulate the transaction at issue in this case through its enactment of Article 16.3, and, in any event, the principal object and purpose doctrine does not exclude this case from regulation as insurance. He requests that the Court give weight to his official, considered views of the law, as set forth in this brief, to the extent the Court finds those views reasonable and persuasive. The Court has noted two broad categories of factors relevant to a court's assessment of the weight due an agency's interpretation: Those indicating that the agency has a comparative interpretive advantage over the courts, and those indicating that the interpretation in question is probably correct. The Court have considered the Commissioner's views, but for the reasons set forth above, the Court disagree with his interpretation of Article 16.3 and the historical limitations on the reach of insurance regulation. As the Court have noted, the expansion of insurance regulation is a task for the Legislature. Moreover, the Legislature has specifically regulated this industry and has provided that the regulatory provisions shall not be construed to impair or affect the right of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement. If the Legislature perceives a need to regulate these agreements, it can weigh whether to treat them as insurance, which would extend numerous regulatory provisions to them and perhaps cause storage companies no longer to offer indemnity, or the Legislature might choose more limited regulation, such as limiting the companies' fees for indemnity and requiring reserves or insurance to satisfy renters' claims. These are policy issues for the Legislature to resolve. In sum, the Protection Plan does not constitute insurance subject to regulation under the Insurance Code. The Legislature's enactment of Article 16.3 enables self-storage facilities to act as agents for insurance companies with respect to the narrow category of insurance described in Article 16.3, but it does not prohibit the parties' indemnification agreement set forth in the Protection Plan. Because the plaintiff's claims are premised on his contention that the Protection Plan is subject to regulation under the Insurance Code, his claims fail. Accordingly, the state Supreme Court affirms the judgment of the Court of Appeal. A full-text copy of the state Supreme Court's April 23, 2018 Opinion is available at https://tinyurl.com/yc23yhdj from Leagle.com. Finkelstein & Krinsk, Jeffrey R. Krinsk -- jrk@classactionlaw.com -- William R. Restis -- wrr@classactionlaw.com -- David J. Harris, Jr. -- djh@classactionlaw.com -- and Trenton R. Kashima - - trk@classactionlaw.com -- for Plaintiff and Appellant. Dale E. Washington; Zakari Law, Raymond Zakari; Baker, Burton & Lundy, and Brad N. Baker, as Amici Curiae on behalf of Plaintiff and Appellant. Sheppard Mullin Richter & Hampton and John T. Brooks -- jbrooks@sheppardmullin.com -- for Defendants and Respondents A-1 Self Storage, Inc., Caster Group LP, Caster Properties, Inc., and Caster Family Enterprises, Inc. Wilson, Elser, Moskowitz, Edelman & Dicker, John R. Clifford -- john.clifford@wilsonelser.com -- and David J. Aveni -- david.aveni@wilsonelser.com -- for Defendant and Respondent Deans & Homer. Dentons US and Charles A. Bird -- charles.bird@dentons.com -- for California Self Storage Association as Amicus Curiae on behalf Defendants and Respondents. Xavier Becerra, Attorney General, Diane S. Shaw, Assistant Attorney General, and Molly K. Mosley, Deputy Attorney General, for State of California as Amicus Curiae, upon the request of the Supreme Court. A. RECKNAGEL INC: Shareholders Seek to Retrieve Company Books --------------------------------------------------------------- Brian Early and Susan E. Decesari, Petitioners, v. A. Recknagel, Inc., Kevin Foley and Bernard Goldstein, Respondents, Case No. 706188/2018 (N.Y. Sup., May 2, 2018), seeks (i) to restrain the respondents from paying out monies to themselves or to the members of their families, by way of salaries, to their creditors, by any means whatsoever, from the corporate funds, (ii) an order directing A. Recknagel, Inc., its directors, officers, agents, or employees, to submit the corporate books, minute book, records, papers and contracts and any other documentary data of A. Recknagel, Inc., (iii) to examine the last audit of the corporation, together with the income and franchise tax returns, reimbursement of lawful costs and disbursements of these proceedings, and (iv) such other and further relief as this Court may deem just pursuant to the Business Corporation Law. Petitioners are shareholders of A. Recknagel, Inc. They claim that the respondents have failed to hold and to notice annual meetings of shareholders for more than eight years now; avoided calling meetings for the election of directors; avoided supplying shareholders with balance sheets and profit and loss earnings statements for more than two years. Kevin Foley and Bernard Goldstein are believed to hold 50% of all the company stock. [BN] Plaintiff is represented by: Stephen S. Danetz, Esq. LAW OFFICES OF STEPHEN S. DANETZ 118-21 Queens Boulevard Forest Hills, NY 11375- 7201 Tel: (718) 575-0045 Fax: (718) 793-7928 A.P. EXPRESS: Doesn't Pay OT to Drivers, "Mejia" Suit Says ---------------------------------------------------------- ALFONSO MEJIA, individually and on behalf of all others similarly situated, Plaintiff v. A.P. EXPRESS LLC; A.P. EXPRESS WORLDWIDE, L.L.C.; and DOES 1 through 100, Defendants, Case No. BC705661 (Cal. Super., May 17, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Mejia was employed by the Defendant as a driver Los Angeles, California, A.P. EXPRESS, LLC, a California limited liability company, provides accelerated priority freight warehousing and distribution services in Los Angeles County, California. [BN] The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile: (310) 553-3603 AARGON AGENCY: Delgado Sues over Debt Collection Practices ---------------------------------------------------------- MELIZZA B. DELGADO, individually and on behalf of all others similarly situated, Plaintiff v. AARGON AGENCY, INC.; CHRISTY DUANE; CHAR NOA; DANIEL ROBINSON; and JOHN DOES 1 to 10, Defendants, Case No. 2:18-cv-09465-SDW-LDW (D.N.J., May 18, 2018), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case was assigned to Judge Susan D. Wigenton and referred to Magistrate Judge Leda D. Wettre. Aargon Agency, Inc. provides mercantile and consumer credit reporting services. The Company offers national debt recovery, as well as first party, early out collection, and billing services. Aargon Agency serves customers worldwide. [BN] The Plaintiff is represented by: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Ave Ste 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 Facsimile: (201) 273-7117 E-mail: ykim@kimlf.com ADKINS AUTO: Court Issues Protective Order in "Luna" FCRA Suit -------------------------------------------------------------- Magistrate Judge Karen E. Scott of the U.S. District Court for the Central District of California, Southern Division, County of Orange, has issued a stipulated protective order in the case captioned LEONARD LUNA and IAN HALL, on behalf of themselves and all others similarly situated, Plaintiffs, v. HANSEN & ADKINS AUTO TRANSPORT, INC., a California Corporation, and DOES 1-10, inclusive, Defendants, Case No. 8:17-cv-00990-DOC-KES (C.D. Cal.). The class action will require the production of personal and confidential information of class members, including their names, addresses, and Social Security Numbers as well as review of such individuals' employment personnel files for which special protection from public disclosure and from use for any purpose other than prosecution of the action is warranted. The protections conferred by the Stipulation and Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Even after final disposition of the litigation, the confidentiality obligations imposed by the Order will remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition will be deemed to be the later of (1) dismissal of all claims and defenses in the Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearing's, remands, trials, or reviews of the Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order. After the final disposition of the Action, within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. Any violation of the Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary sanctions. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/lwZGfI from Leagle.com. Leonard Luna, on behalf of themselves and all others similarly situated & Ian Hall, Plaintiffs, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm PC & Maria Adrianne De Castro -- adrianne@desai-law.com -- Desai Law Firm PC. Hansen and Adkins Auto Transport, Inc, a California Corporation, Defendant, represented by Victor J. Cosentino, Larson and Gaston LLP. ADT SECURITY: Bid to Replace Named Plaintiff in "Kimble" Denied --------------------------------------------------------------- Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the Plaintiffs' motion to withdraw as Plaintiffs and substitute Nick Nikki as the named Plaintiff and the new class representative in the case, ZARAH KIMBLE, SEHER BASAK, and SARAH SAKINAH GROZA O'LOUGHLIN, individually and on behalf of all others similarly situated, Plaintiffs, v. ADT SECURITY SERVICES, a/k/a/ ADT HOLDINGS, INC., Defendant, Case No. 3:16-cv-02519-GPC-BLM (S.D. Cal.). On Oct. 7, 2016, Plaintiff Margarette Smith filed a purported class action complaint against SLS for violations of Regulation X of the Real Estate Settlement Procedures Act ("RESPA"), and related causes of action. On May 3, 2017, the Court granted in part and denied in part SLS's motion to dismiss with leave to amend. On May 10, 2017, the Plaintiff filed a purported first amended class action complaint against SLS for violations of Regulation X, and California Unfair Competition Law ("UCL"). Prior to the filing of the FAC, Ms. Smith died on April 18, 2017. According to her last will and testament filed with the San Diego Recorder's Office, Smith's home at 2452 Blackton Drive, San Diego, CA 92105, the subject property at issue in the case, is part of an irrevocable trust to which her three granddaughters, Zarah Kimble, Seher Basak, and Sarah Sakinah Groza O'Loughlin are equal beneficiaries. According to the FAC, Smith's granddaughters are her successors in interest and succeeded to Smith's interest in the property. On May 24, 2017, SLS filed a motion to dismiss for lack of standing because the Plaintiff passed away, or in the alternative, a motion to strike the class allegations pursuant to Federal Rule of Civil Procedure ("Rule") 12(f). SLS contended that the FAC does not demonstrate that the Granddaughters are the Plaintiff's successors-in-interest to the claims asserted. On July 12, 2017, the Court deferred ruling on the motion to dismiss until the substitution issue was resolved. The Plaintiffs then filed a motion to substitute the granddaughters in as the Plaintiffs on June 24, 2017, which the Court granted on Sept. 13, 2017. On Sept. 21, 2017, the Court issued an order denying SLS' remaining motion to strike the class allegations pursuant to Rule 12(f) as premature. Moving forward with the case, the Plaintiffs filed a purported second amended class action complaint on Sept. 21, 2017. SLS filed an answer on Oct. 5, 2017. On Oct. 30, 2017, the Court issued a joint discovery plan and on Nov. 9, 2017 the Court issued a scheduling order, setting Jan. 18, 2018 as the deadline to amend or file new pleadings. On Feb. 26, 2018, the Plaintiffs filed a motion for leave to amend to add Nikki as the named Plaintiff. On March 6, 2018, SLS filed a response in opposition, along with affidavits, containing records suggesting that the Plaintiffs misrepresented their knowledge about Ms. Smith's residence. Based on the facts contained in SLS' response, the Plaintiffs filed a notice to withdraw their motion for leave to amend and filed the instant motion to withdraw as the Plaintiffs and substitute Nikki on March 15, 2018. SLS filed a response in opposition on March 29, 2018, arguing that the Plaintiffs' Motion to Withdraw fails to meet three different standards: (1) voluntary dismissal under Rule 41; (2) modification of a scheduling order under Rule 16; and (3) amendment under Rule 15.3 . Judge Curiel disagrees with SLS' contention that the Plaintiffs' Motion to Withdraw should be characterized as a request for voluntary dismissal pursuant to Rule 41. He says under Rule 41, after an opposing party has served an answer or motion for summary judgment, an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. The Judge finds that the Plaintiffs here do not seek dismissal of their claims. Rather, their request concerns substituting the named Plaintiffs in the case. SLS has provided the Court with no case law that demands it re-characterize the Plaintiffs' claim regarding the named parties as a dismissal of the case in its entirety. Conversely, district courts have routinely considered motions to withdraw and substitute under Rules 15 and 16. With respect to the diligence inquiry demanded by Rule 16, the Judge concludes that the Plaintiffs have failed to demonstrate diligence to justify a modification of the scheduling order after its deadline. He notes that according to the operative SAC, the Plaintiffs assert that the property at issue was always considered the family home used for personal purposes and had never been rented out. Before and after Ms. Smith moved out, one or more of the Plaintiffs lived at the property. The SAC also claims that Plaintiff Seher Basak has continuously lived at the property since childhood. Therefore, the Plaintiffs must have known that there were other "mortgage contributors" at that time, and the content of the documents the Defendant filed on March 6, 2018 could not have been new information to the Plaintiffs. Similarly, the Plaintiffs have not demonstrated diligence concerning the issue of whether the property was subject to rental income. Since Rule 16 is not satisfied, he says he needs not analyze Rule 15's more liberal standard for amendment. The Defendants seek sanctions in the form of attorney's fees under the Court's inherent authority and 28 U.S.C. Section 1927 for the misrepresentations concerning Ms. Smith's residency at the property made bythe Plaintiffs asserting the misrepresentations were made in bad faith and were reckless. While there may be been misrepresentations or inconsistencies concerning when Ms. Smith lived at the property, the Judge finds that the Plaintiffs plausibly argued that the home was Ms. Smith's principal residence despite her stay at the nursing care facility because she had intended to return to the property. He concludes that the Defendants have not demonstrated that the representations were made in bad faith or recklessly to justify attorney's fees. Accordingly, he denies the Defendants' motion for sanctions. Despite ample notice of the standing issues and adequacy of the Plaintiffs as class representatives dating back to May of 2017, and despite the presentation of arguments suggesting the need for modification well before the Jan. 18, 2018 deadline, Judge Curiel holds that the Plaintiffs were dilatory in filing the current Motion to Withdraw. Accordingly, he denied the Plaintiffs' Motion to Withdraw and Substitute Plaintiffs. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/842OBv from Leagle.com. Zarah Kimble, individually and on behalf of all others similarly situated, Seher Basak, individually and on behalf of all others similarly situated & Sarah Sakinah Groza O'Loughlin, individually and on behalf of all others similarly situated, Plaintiffs, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Geoffrey Bestor -- gbesq@bestorlaw.com -- The Bestor Law Firm, pro hac vice, Jonathan K. Tycko -- jtycko@tzlegal.com -- pro hac vice & Katherine Marie Aizpuru -- kaizpuru@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice. Specialized Loan Servicing, LLC, Defendant, represented by Brian Andrew Paino -- bpaino@mcglinchey.com -- McGlinchey Stafford & Dhruv Mohan Sharma -- dsharma@mcglinchey.com -- McGlinchey Stafford. AIR EVAC EMS: Underpays Flight Paramedics, Riegelsberger Claims --------------------------------------------------------------- JACOB RIEGELSBERGER, individually and on behalf of all similarly situated persons, Plaintiff v. AIR EVAC EMS, INC.;, and GLOBAL MEDICAL RESPONSE, INC. f/k/a AIR MEDICAL GROUP HOLDINGS, INC., Defendants, is an action against the Defendant to recover unpaid overtime wages under the Fair Labor Standards Act. Riegelsberger was employed by the Defendant as a flight paramedic. Global Medical Response, Inc. f/k/a Air Medical Group Holdings, Inc. is a Missouri corporation with headquarters in O'Fallon, Missouri. The Company is engaged in operating a helicopter medical service in the U.S. [BN] The Plaintiff is represented by: Jonathan E. Fortman, Esq. LAW OFFICE OF JONATHAN E. FORTMAN, LLC 250 Saint Catherine Street Florissant, MO 63031 Tel: (314) 522-2312 Fax: (314) 524-1519 E-mail: jef@fortmanlaw.com - and - Drew Legando, Esq. Jack Landskroner, Esq. LANDSKRONER GRIECO MERRIMAN LLC 1360 West 9th Street, Suite 200 Cleveland, OH 44113 Tel: (216) 522-9000 Fax: (216) 522-9007 E-mail: drew@lgmlegal.com jack@lgmlegal.com - and - Seth R. Lesser, Esq. Fran L. Rudich, Esq. KLAFTER OLSEN & LESSER, LLP Two International Drive, Suite 350 Rye Brooke, NY 10573 Tel: (914) 934-9200 Fax: (914) 934-9220 E-mail: seth@klafterolsen.com fran@klafterolsen.com AKERS BIOSCIENCES: Faces Securities Class Action ------------------------------------------------ Bernstein Liebhard LLP on June 13 disclosed that a securities class action lawsuit has been filed on behalf of those who purchased or acquired the securities of Akers Biosciences, Inc. ("Akers" or the "Company") (NASDAQ: AKER) between May 15, 2017 and June 5, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover Akers shareholders' investment losses. To join the Akers class action, and/or if you have information relating to this matter, please visit our AKERS 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) Akers was improperly recognizing revenue for the fiscal year ended December 31, 2017; (2) Akers had downplayed weaknesses in its internal controls over financial reporting and failed to disclose the true extent of those weaknesses; and (3) as a result, Defendants' statements about Akers' business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. On May 21, 2018, during aftermarket hours, Akers revealed that its ongoing review of the characterization of certain revenue recognition items for the quarter ended March 31, 2018 "now includes certain transactions in previous quarters." As a result, Akers stated that "the Company is unable to file its 10-Q for the quarter ended March 31, 2018." On this news, Akers' stock fell $0.058 per share, or over 8%, from its previous closing price to close at $0.599 per share on May 22, 2018. On May 29, 2018, Akers revealed "that Raymond F. Akers Jr., Ph.D has resigned as a director of the Company with immediate effect." On this news, Akers' stock fell $0.263 per share, or over 44%, over two consecutive trading days to close at $0.326 per share on May 30, 2018. Then, on June 1, 2018, Akers filed a Form 8-K with the SEC attaching a letter from Raymond Akers to the Company. In the letter, Mr. Akers stated that "I have resigned from the Board of Directors due to significant differences regarding the policies and practices of the Board of Directors, accounting and business practices of Management, and new Counsel. I believe this to be in the best interests of the Company, shareholders, and me." If you wish to serve as lead plaintiff, you must move the Court no later than August 13, 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. Since 1993, Bernstein Liebhard LLP -- http://www.bernlieb.com-- has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. [GN] ALERE INC: Ct. Won't Review "Andren" Class Certification Denial --------------------------------------------------------------- In the case, DINA ANDREN, SIDNEY BLUDMAN, VIRGINIA CIOFFI, BERNARD FALK, JEANETTE KERZNER-GREEN, CAROL MONTALBANO, and DONALD RIGOT, individually, and on behalf of other members of the general public similarly situated., Plaintiff, v. ALERE, INC., a Delaware corporation, ALERE HOME MONITORING, INC., a Delaware corporation, ALERE SAN DIEGO, INCA., a Delaware corporation., Defendant, Case No. 16cv1255-GPC(AGS) (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the Plaintiffs' motion for reconsideration of the Court's order denying class certification filed on December 2017. The original complaint was filed on May 26, 2016. After the Court granted the Defendants' motion to dismiss with leave to amend, on Oct. 3, 2016, the Plaintiffs filed the operative purported first amended class action complaint ("FAC") against the Defendants for unlawfully, deceptively and misleadingly engaging in the advertising, marketing and sale of the INRatio products which include "INRatio PT/INR Monitors," "INRatio PT/INR Test Strips," "INRatio2 PT/INR Monitors" and "INRatio2 PT/INR Test Strips." The FAC alleges sixteen causes of action for violations of (1) California's Consumer Legal Remedies Act, ("CLRA"); (2) California's Unfair Competition Law, ("UCL"); (3) fraud; (4) unjust enrichment; (5) Colorado Consumer Protection Act; (6) breach of the implied warranty of merchantability; (7) Florida Deceptive and Unfair Trade Practices Act; (8) breach of the implied warranty of merchantability,; (9) Georgia Fair Business Practices Act; (10) Georgia Uniform Deceptive Trade Practices Act; (11) Maryland Consumer Protection Act; (12) breach of the implied warranty of merchantability under Md. Code Com. Law Section 2-314; (13) New York General Business Law; (14) New York General Business Law; (15) Pennsylvania Unfair Trade Practices and Consumer Protection Law; and (16) breach of the implied warranty of merchantability. The Plaintiffs filed a motion for class certification on June 21, 2017. After the motion was fully briefed, including a sur-reply, the Court held a hearing on Sept. 22, 2017 and then ordered supplemental briefing on the issue of claim splitting. The parties filed supplemental briefing on Oct. 13, 2017 and Oct. 20, 2017. On Dec. 20, 2017, the Court denied the Plaintiffs' motion for class certification. On Jan. 31, 2018, the Plaintiffs filed a motion for reconsideration of the class certification order. The Defendants filed an opposition on March 16, 2018 and the Plaintiffs filed their reply on March 30, 2018. With leave of Court, the Defendants filed a sur-reply on April 18, 2018. In the FAC, the Plaintiffs seek to certify six sub-classes States represented by them: a Colorado, Florida, Georgia, Maryland, New York and Pennsylvania Sub-Class to include, all residents of each Plaintiffs' respective home State, who, during the period Jan. 1, 2009 through the present, purchased, rented or otherwise paid for the use of the INRatio products manufactured, marketed, sold or distributed by the Defendants. They argue that newly discovered facts not available at the time of class certification demonstrate that predominance has been satisfied as to the individual state sub-classes on the learned intermediary doctrine, statute of limitations and damages. Judge Curiel concludes that the Plaintiffs have not satisfied their burden to affirmatively demonstrate predominance as to the learned intermediary doctrine. He will deny the Plaintiffs' motion for reconsideration on this issue. The Plaintiffs summarily conclude that because there are cases that have held that the full-refund damages model satisfies Comcast under certain of their states' consumer protection law, then Comcast is necessarily met. However, Comcast demands a rigorous analysis and is not satisfied by merely arguing that courts in some of the six states allow for a full refund model. The Judge finds that the Plaintiffs have failed to specifically demonstrate that each of the six sub-class states' consumer protection statute and claims for implied breach of warranty in four sub-class states are connected to their theory of damages or that these state law causes of action damages provide for a full refund recovery. Thus, he will deny the Plaintiffs' motion for reconsideration on the issue of Comcast damages. Finally, the Judge finds that the Plaintiffs have not carried their burden to satisfy Rule 23(b)(3)'s requirement that the questions of law or fact common to the numbers of the class predominate over any questions affecting only individual member on the learned intermediary doctrine, Comcast damages and the statute of limitations. For these reasons, Judge Curiel denied the Plaintiffs' motion for reconsideration of the order denying class certification. He vacated the hearing set for April 27, 2018. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/qdQPDn from Leagle.com. Dina Andren, individually, and on behalf of other members of the general public similarly situated & Sidney Bludman, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, represented by Mark P. Pifko, Baron & Budd, Roland K. Tellis -- rtellis@baronbudd.com -- Baron Budd P.C., Thomas Joseph O'Reardon, II -- toreardon@bholaw.com -- Blood Hurst & O'Reardon LLP, Timothy Gordon Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon LLP & Peter B. Klausner -- peter.klausner.esq@gmail.com -- Baron & Budd, PC. Virginia Cioffi, Bernard Falk, Jeanette Kerzner-Green, Carol Montalbano & Donald Rigot, Plaintiffs, represented by Mark P. Pifko, Baron & Budd, Thomas Joseph O'Reardon, II, Blood Hurst & O'Reardon, LLP & Timothy G. Blood, Blood Hurst & O'Reardon, LLP. Alere Inc., a Delaware corporation & Alere San Diego, Inc., a Delaware corporation, Defendants, represented by Andrew A. Kassof -- andrew.kassof@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Anthony John Anscombe -- anthony.anscombe@sdma.com -- Sedgwick LLP, Darlene K. Alt, Sedgwick LLP, pro hac vice, Dennis Francis Murphy -- dennis.murphy@squirepb.com -- Sedgwick LLP, Mary E. Buckley, Sedgwick LLP, pro hac vice & Stephanie Sheridan, Sedgwick Detert Moran and Arnold. Alere Home Monitoring, Inc., a Delaware corporation, Defendant, represented by Andrew A. Kassof, Kirkland & Ellis LLP, pro hac vice, Brenton Adam Rogers, Kirkland & Ellis LLP, pro hac vice, Dennis Francis Murphy, Sedgwick LLP, Ragan Naresh, Kirkland & Ellis LLP, pro hac vice & Sierra Elizabeth, Kirkland and Ellis LLP. ARIZONA: 9th Cir. Likely to Revive Racial Discrimination Lawsuit ---------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that a Ninth Circuit judge indicated on June 13 that he supported reviving a proposed class action accusing federal and Arizona state agencies of racial discrimination against American Indian children and their non-American Indian adoptive parents. Circuit Judge John Owens said that an allegation by the plaintiffs -- four minor children and their adoptive parents -- that they were emotionally and psychologically harmed by a provision in the Indian Child Welfare Act requiring American Indian children in foster care visit and be placed with American Indian parents was their strongest for showing injury and standing to sue. A finding of standing by the Ninth Circuit would send the case back to U.S. District Judge Neil Wake in Phoenix, who dismissed it for lack of standing because the plaintiffs hadn't alleged "concrete and particularized" injury stemming from the statute's disputed provisions. "When they say they were injured by having to go through this process, you can imagine that process is itself the injury -- regardless of the result -- they were injured on the day they had to have their kids go to someone else and told they're not their dad." Judge Owens told the government's attorneys in the June 13 hearing. "Tell me why that's not enough." The plaintiffs sued the U.S. Department of the Interior and the Arizona Department of Child Safety for nominal damages from the state and a court order tossing five provisions of the Indian Child Welfare Act. They claim the provisions amount to "unconstitutional discrimination based on the race, color, or national origin of the children, parents, and class members" because they established rules for American Indian child welfare cases, foster care and adoption proceedings that are "separate and substandard" to state rules for non-American Indian children. Some of the disputed provisions, for example, mandate that American Indian children be placed with foster or adoptive parents who are also American Indian. By contrast, state law does not require race-matched placements for non-American Indian children. The plaintiffs allege in their complaint that the children's eventual adoptions by their non-American Indian foster parents were delayed due to the racial requirements imposed by the statute. Aditya Dynar, the plaintiffs' attorney, added during oral argument that one of the children, identified only as C.C., was forced to visit dozens of prospective parents and "cried uncontrollably at every single one of those visits." Mr. Dynar said state and tribal officials present at the visits "told him [C.C.] that his mom and dad are not his mom and dad. For a 2, 3, 4-year-old child, that's a traumatic injury and that's the injury we have claimed in this case." The Indian Child Welfare Act sets minimum standards in state child-welfare proceedings for the foster care and adoptive placement of American Indian children. Congress passed the statute in 1978 after finding that nearly one-third of all American Indian children had been removed from their family homes by nontribal public and private agencies, according to the plaintiffs' appeals brief. The House Report on the statute noted that state social workers often removed American Indian children from their homes based on vague allegations, and that the social workers "frequently discover neglect or abandonment where none exists." Visiting Senior Tenth Circuit Judge David Ebel countered Mr. Dynar's argument that all four of the children were harmed emotionally, pointing out that two were infants when they were taken to visit prospective placements and were not "in a position to allege that trauma." Circuit Judge Mary Schroeder, however, said the plaintiffs needn't show actual harm because the allegations are based on racial discrimination. Mr. Dynar, who practices with the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Phoenix, agreed. But he insisted the allegations were specific enough to confer standing. "The denial of equal treatment, visitations with strangers, emotional and psychological harm; at this point, there isn't anything else needed in the complaint in terms of concreteness and particularization," he said. Justice Department attorney Christine Ennis insisted the case was moot because the children had all been all adopted by their foster parents since Judge Wake dismissed the case. But the panel wasn't persuaded, predicting that vacating Judge Wake's ruling by finding mootness would result in another lawsuit. The judges asked Ms. Ennis to instead focus on the standing argument in regards to visitations. Ms. Ennis said the plaintiffs weren't injured because no placements resulted from the visits, an argument rejected by Owens. "Here they're alleging, 'we never would've made this visit, we never would've done any of this, but this act required us to make this visit.' Why isn't that an injury," he said. The panel, however, gave little indication how it will rule on the question of nominal damages. A ruling against the plaintiffs would end the case. Arizona Solicitor General Dominic Draye, who represents the state, said the visitation-based injuries weren't nominal injuries but actual ones, which hadn't been pleaded. "When the only injury asserted is of this specific kind, that we were exposed to a classification," Mr. Draye said, referring to the allegation of racism, "injunctive relief can keep a case alive. But when it's damages, when it's retroactive relief like nominal damages and declarative relief, that's insufficient under this court's precedent." [GN] AUSTRALIA: Funding Secured for PFAS Suit Against Defense Dept. -------------------------------------------------------------- Chris McLennan, writing for Katherine Times, reports that crucial funding has been secured for the hundreds of Katherine people who have already signed up to sue the Department of Defence. Shine Lawyers has won the backing of litigation funder IMF Bentham Limited to fund the planned no win-no fee class action over lost property values from PFAS contamination of the town. PFAS chemicals were used in firefighting foams once used at the Tindal RAAF Base and which are still leaking into the groundwater and underneath Katherine, into the river. The proposed class action has become now unconditional, a critical step in the proposed court action. Enough people have signed up with valid claims against Defence, the litigation funder has decided. "IMF has confirmed that the condition precedent to the agreement, requiring sufficient claimants with valid claims entering into funding agreements with IMF, has been satisfied," Shine Lawyers said on June 14. IMF is also backing Oakey residents in Queensland who have launched their own class action against Defence over PFAS contamination. The law firm, Dentons Lawyers, is mounting the class action at Williamtown in NSW, again backed by IMF. A trial date of late 2019 has been set down for class actions involving Williamtown and Oakey with a mediation session later this year. The proposed action in Katherine will be conducted on behalf of property and business owners affected by contamination alleged to have arisen from the use of aqueous film forming foam at RAAF Base Tindal. "This will enable us to progress our investigation. We are working with counsel and a team of experts to finalise proceedings, with a view to filing the action as soon as possible," Shine Lawyers special counsel Josh Aylward said. "The financial backing of an international funder, IMF, bolsters our case and confidence in the outcome for Katherine residents," he said. "This agreement enables us to carry a case of this scale through the courts, and empowers us to deliver justice to residents as soon as is practicable." "This action will ensure that Katherine residents whose property values and businesses have been directly impacted by this contamination can access justice and seek to hold Defence to account for the significant harm inflicted on them and their community." Residents can still join the action by contacting the IMF Client Liaison Team by email on 403619@imf.com.au or by calling 1800 016 464 (Tollfree). [GN] AUSTRALIA: NSW Police Faces Lawsuit Over Sniffer Drug Operation --------------------------------------------------------------- Alex Bruce-Smith, writing for ten daily, reports that a potential class action lawsuit is brewing amongst people denied entry to music festivals after a sniffer dog "indication", despite not carrying any drugs. At least five people were denied entry to the Above and Beyond event in Sydney, with one person being given a six month suspension. NSW Greens MP David Shoebridge says that Sniff Off -- the anti-drug dog campaign collaboration between his office and the Young Greens NSW -- is now pursuing a potential class action lawsuit against NSW Police. "We're gathering people together and seeing if there's a viable class action, or a series of individual claims made against the police," he told ABC Radio on June 12. "I doubt we'll get parliament to clarify the laws around sniffer dogs, so it looks like we're going to go down the court path." It follows his comments that the Police's new approach was an "overreach" and a "clear abuse of police powers". A drug dog "indication" generally means the dog sits down next to you but Sniff Off claims that anecdotally, this doesn't usually happen in the majority of cases, with a police officer simply making the decision to search you instead. Dogs give a false positive anywhere from two-thirds to three-quarters of the time. NSW Police wouldn't clarify what a drug dog indication means. The man who received a six-month suspension from Sydney Olympic Park was strip-searched, said Mr. Shoebridge. "He was quite unhappy about being strip-searched, quite unhappy about being kicked out," said Mr. Shoebridge. "He let police know he was unhappy about that, so they threw in the additional punishment." All five people refused entry, despite not being found to carry drugs, were given a ticket refund, police confirmed to ten daily. Two men were charged with supplying a prohibited drug after more than 100 MDMA capsules were seized, with one facing court on June 10. A further four people were issued with future court attendance noticed for drug possession. As well as the five people denied entry to Above and Beyond, Sniff Off are also talking to people reportedly denied entry to Sydney's Midnight Mafia event in May for the same reason. At least seven people are needed for a class action lawsuit. It comes after an injunction failed to get off the ground at the Supreme Court on June 8, with Justice Pembroke describing the bid as "misconceived". "We had very strong advice from lawyers suggesting it was unlawful, but the court at that point said they weren't going to grant release because it was a hypothetical," said Mr. Shoebridge. Critics of the controversial plan to rely on sniffer dogs even found a supporter in former Australian Border Force chief Roman Quaedvlieg. "I spent 32 years in drug enforcement, from seizing street deals to detecting multi-tonne imports of pure meth, but I find this step extraordinary," he tweeted. When contacted for comment, NSW Police declined to comment further on the circumstances surrounding the five people denied entry. [GN] BAKER CONCRETE: Fails to Pay Proper Wages, "Ontiveros" Suit Says ---------------------------------------------------------------- CHRISTOPHER ONTIVEROS, individually, on behalf of all others similarly situated, Plaintiff v. BAKER CONCRETE CONSTRUCTION, INC., and DOES 1 through 50, inclusive, Defendants, Case No. 18CV328679 (Cal. Super., May 21, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Ontiveros was employed by the Defendants from July 2016 to January 2018 as a non-exempt employee. Baker Concrete Construction, Inc., a concrete construction contractor, provides a range of concrete construction and related management services to residential, industrial, and commercial markets. The company was founded in 1961. [BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 BANCO SANTANDER: Rigged Mexican Bond Sales, VI Employees Claim -------------------------------------------------------------- A class action complaint alleges that the defendants conspired with one another to manipulate key financial rates, metrics and instruments related to the trading of Mexican government bonds to benefit themselves and to the detriment of their clients, including the Plaintiff. According to the complaint, the market makers in a specific market quote both a buy and a sell price in a financial instrument or commodity held in inventory, hoping to make a profit on the bid-offer spread ("Market Makers"). The complaint contends that the Defendants -- designated Market Makers in government bonds issues by the Federal Government of Mexico ("MGB") -- subverted competition in the market for MGBs. Rather than provide a robust competitive market, the Defendants engaged in a longstanding scheme to fix or rig the bid-ask spread for primary and secondary MGB offerings. The Defendants carried out this scheme by exchanging competitively sensitive information, such as their order flow and prices at which they intended to purchase or sell MGB, and by coordinating their buying and selling activity in MGBs. Such actions violated the rules of the sale process, pursuant to which bids were to be submitted blind. As a result of the Defendants' actions, the Plaintiff and other purchasers of MGBs have been harmed by purchasing into a market where prices and yields are set not by the intersection of supply and demand, but by secret agreements between Defendants to fix or set the prices at which MGBs are sold and the yields that they offer. Banco Santander, S.A., together with its subsidiaries, provides various retail and commercial banking products and services for individual and corporate clients worldwide. The company was formerly known as Banco Santander Central Hispano S.A. and changed its name to Banco Santander, S.A. in June 2007. Banco Santander, S.A. was founded in 1856 and is headquartered in Madrid, Spain. The case is captioned, GOVERNMENT EMPLOYEES' RETIREMENT SYSTEM OF THE VIRGIN ISLANDS, Plaintiff v. BANCO SANTANDER S.A., SANTANDER INVESTMENT SECURITIES, INC., SANTANDER HOLDINGS USA, INC., BANCO SANTANDER (MEXICO) S.A. INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO, SANTANDER INVESTMENT BOLSA, SOCIEDAD DE VALORES, S.A.U., BANCO BILBAO VIZCAYA ARGENTARIA, S.A., BBVA SECURITIES, INC., BBVA COMPASS BANCSHARES, INC., BBVA BANCOMER S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER, GRUPO FINANCIERO BBVA BANCOMER, S.A. DE C.V., JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, J.P. MORGAN SECURITIES LLC, J.P. MORGAN BROKER-DEALER HOLDINGS INC., BANCO J.P. MORGAN, S.A. INSTITUCION DE BANCA MULTIPLE, J.P. MORGAN GRUPO FINANCIERO, HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC SECURITIES (USA) INC., HSBC MARKETS (USA) INC., HSBC MEXICO, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO HSBC, HSBC NORTH AMERICA HOLDINGS INC., HSBC LATIN AMERICA HOLDINGS (UK) LIMITED, BARCLAYS PLC, BARCLAYS CAPITAL PLC, BARCLAYS CAPITAL INC., BARCLAYS BANK PLC, GRUPO FINANCIERO BARCLAYS MEXICO, S.A. DE C.V., BARCLAYS BANK MEXICO, S.A., CITIGROUP INC., CITIGROUP GLOBAL MARKETS INC., CITIGROUP FINANCIAL PRODUCTS INC., CITIGROUP GLOBAL MARKETS HOLDINGS INC., BANCO NACIONAL DE MEXICO, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BANAMEX, BANK OF AMERICA N.A., BANK OF AMERICA CORPORATION, BANKAMERICA INTERNATIONAL FINANCIAL CORPORATION, BANK OF AMERICA MEXICO, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BANK OF AMERICA, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, DEUTSCHE BANK AG, DEUTSCHE BANK SECURITIES, INC., DEUTSCHE BANK MEXICO, S.A. INSTITUCION DE BANCA MULTIPLE, CREDIT SUISSE AG, CREDIT SUISSE (USA) INC., CREDIT SUISSE AG, NEW YORK BRANCH, CREDIT SUISSE SECURITIES (USA) LLC, GRUPO FINANCIERO CREDIT SUISSE (MEXICO), S.A. DE C.V., BANCO DE CREDIT SUISSE (MEXICO), CASA DE BOLSA CREDIT SUISSE (MEXICO), S.A. DE C.V., CREDIT SUISSE SERVICIOS (MEXICO) S.A. DE C.V., and "JOHN DOES" 1-10 Defendants, Case No. 1:18-cv-04673 (S.D.N.Y., May 25, 2018)[BN] The Plaintiff is represented by: Michael A. Toomey, Esq. William J. Ban, Esq. Michael A. Toomey, Esq. BARRACK, RODOS & BACINE 11 Times Square, 640 8th Avenue, 10th Floor New York, NY 10022 Telephone: (212) 688-0782 - and - Jeffrey A. Barrack, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Telephone: (215) 963-0600 - and - Gerald J. Rodos, Esq. Jeffrey B. Gittleman, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Telephone: (215) 963-0600 - and - Gerald J. Rodos, Esq. Jeffrey B. Gittleman, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street, Suite 3300 Philadelphia, PA 19103 Telephone: (215) 963-0600 BANK OF AMERICA: Fails to Pay Proper Wages, "Tripes" Suit Says -------------------------------------------------------------- Traci Tripes, individually and on behalf of all others similarly situated, Plaintiff v. Bank of America, N.A., and Does 1 through 10, Defendants, Case No. RG18904755 (Cal. Super., Alameda Cty., May 14, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Tripes was employed by the Defendants as a mortgage loan associate from April 2014 to March 2018. Bank of America National Association operates as a bank. The Bank accepts deposits, makes loans, and provides other financial and investment services for the public. Bank of America serves individual and institutional customers throughout the United States. [BN] The Plaintiff is represented by: Aaron Kaufmann, Esq. David Pogrel, Esq. Elizabeth Gropman, Esq. LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 E-mail: akaufmann@leonardcarder.com dpogrel@leonardcarder.com - and - Edward J. Wynne, Esq. WYNNE LAW FIRM Wood Island 80 E. Sir Francis Drake Boulevard, Suite 3G Lakspur, CA 94939 Telephone: (415) 461-6400 Facsimile: (415) 461-3900 BANK OF AMERICA: Greensfelder Attorney Discusses Court Ruling ------------------------------------------------------------- Heather M. Mehta, Esq. -- hmm@greensfelder.com -- of Greensfelder Hemker & Gale PC, in an article for Lexology, wrote that in an unpublished opinion, the U.S. Court of Appeals for the Fourth Circuit found a lower court did not err when awarding no relief for a breach of fiduciary duty. (Pender v. Bank of America Corp., No. 17-1485, June 5, 2018.) Although Bank of America violated the Employee Retirement Income Security Act of 1974 (ERISA), the court found that it did not profit from its actions and, therefore, awarding damages would not be appropriate equitable relief. The case stems from a 1998 decision to offer 401(k) participants the option of moving their account balances into its cash balance defined benefit plan to be commingled with that fund. Bank of America believed it could obtain a higher return for participants than they could on their own. As part of the offer, Bank of America guaranteed that the participants' balances would not fall below the amount they were at the time of transfer. Participants and beneficiaries transferred $2 billion as a result of the offer. In 2005, the IRS concluded that the transfer violated ERISA's anti-cutback provision because the assets no longer had their "separate account feature." Three years later, Bank of America paid the IRS a $10 million penalty, set up a special purpose 401(k) plan to receive the transferred accounts, and made additional payments to certain participants' accounts. Simultaneously, participants filed a class action lawsuit, alleging a variety of equitable and statutory claims. All of the plaintiffs' other claims were dismissed or not part of the appeal. Plaintiffs argued to the lower court and on appeal that because their money was improperly commingled with other money, they should receive a proportionate share of the whole of the profits Bank of America made on the combined assets. Bank of America argued that relief was inappropriate because it did not profit. Bank of America closely tracked participants' notational accounts and used a different investment strategy for their accounts than it did for the pension assets. Although the pension assets performed well, the participants' investments underperformed. Both courts rejected the plaintiffs' argument that the district court was required to reward proportionate-share-of-the-whole relief. ERISA requires equitable relief to be "appropriate" and thus does not mandate a remedy. The Fourth Circuit also found that the district court did not clearly err when accepting factual evidence that Bank of America did not profit. After 13 years of litigation and three trips to the Fourth Circuit, the plaintiffs were left empty-handed despite the IRS and district courts finding that Bank of America violated ERISA. By choosing to file an unpublished opinion and stressing that the opinion only applied to the facts of this case, the Fourth Circuit signaled that it did not necessarily agree with the lower court but was constrained by its standard of review. Judge Keenan, who dissented, did not feel so constrained and stated that the lower court abused its discretion. She agreed that the lower court was not mandated to award a proportionate share of Bank of American's profits but disagreed with the opinion that Bank of America did not profit. She found that awarding a share of the profits would have been appropriate. [GN] BEST BUY CO: Faces "Lavera" Suit in Hennepin County --------------------------------------------------- A class action lawsuit has been filed against BestBuy.Com, LLC. The case is captioned as Dawn Lavera, individually and on behalf of all others similarly situated, Plaintiff v. BestBuy.Com, LLC; Best Buy Co., Inc.; Best Buy Stores, L.P.; and, Defendants, Case No. 27-CV-18-8432 (Minn. Dist., Hennepin County, May 15, 2018). BestBuy.com, LLC owns and operates Best Buy web-site BestBuy.com which operates as a specialty retailer of consumer electronics, home office products, entertainment software, appliances, and related services. The company was incorporated in 1999 and is based in Richfield, Minnesota. BestBuy.com, LLC operates as a subsidiary of Best Buy Stores, L.P.[BN] The Plaintiff is represented by: David Michael Cialkowski, Esq. ZIMMERMAN REED 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Tel: 612-341-0400 Fax: 612-341-0844 Email: david.cialkowski@zimmreed.com BEST DOCTORS INC: Made Unsolicited Calls, Kenneth Thomas MD Says ---------------------------------------------------------------- KENNETH A. THOMAS MD, LLC, Plaintiff v. BEST DOCTORS, INC., Defendant, Case No. 1:18-cv-10957 (D. Mass., May 14, 2018) seeks to stop the Defendant's unauthorized fax-based marketing activities, as well as an award of actual and statutory damages, along with costs. The complaint alleges that the Defendant sent faxes to Plaintiff and the Class despite having no established business relationship with them; never receiving the recipients' consent to send them such faxes; and that none of the faxes sent contained requisite opt-out notices. Kenneth A. Thomas MD, LLC is a Connecticut limited liability company with its principal place of business in Stratford, Connecticut. Best Doctors is a Delaware corporation with its principal place of business in Boston, Massachusetts. [BN] The Plaintiff is represented by: Jason Campbell, Esq. 250 First Avenue, Unit 602 Charlestown, MA 02129 Telephone: (617) 872-8652 E-mail: jasonrcampbell@ymail.com - and - Avi R. Kaufman, Esq. Kaufman P.A. 400 NW 26 th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com BEVERLY HEALTH: $450K Settlement in "Ahmed" Has Final Approval -------------------------------------------------------------- In the case HENNA AHMED, an individual, Plaintiff, v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC.; GGNSC ADMINISTRATIVE SERVICES, LLC; and DOES 1-100, inclusive, Defendants, Civ. No. 2:16-1747 WBS KJN (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California granted the Plaintiff's unopposed Motion for final approval of the class action settlement, and unopposed Motion for attorneys' fees, costs, and class representative service payment. Ahmed brought the putative class-action lawsuit against the Defendants, alleging that the Defendants violated the California Labor Code. Presently before the Court are the Plaintiff's unopposed motions for final approval of the class action settlement, and for attorneys' fees, costs, and class representative service payment. The parties agreed that Atticus Administration, LLC would serve as the claims administrator. The gross settlement amount in the case is $450,000. The parties have agreed to distribute the amount as follows: (1) the class counsel will receive a fee of $150,000, equal to one third of the gross settlement amount; (2) the Plaintiff will receive an incentive reward of $4,500; (3) $4,500 will go to pay any civil penalties that could be awarded and of that amount $3,375 will be paid to the California Labor & Workforce Development Agency in satisfaction of the Defendants' alleged penalties under the Labor Code Private Attorney General's Act; (4) $12,500 will go towards litigation costs; (5) $16,000 will be paid to Atticus Administration; and (6) the remaining amount, $263,625, will be distributed to the settlement class based on the number of wage statements issued to each class member. Additionally, separate and apart from the claims made on a class and representative basis, the Plaintiff asserted individual claims for alleged violations of the FEHA, and she has agreed to settle those claims in exchange for $15,000. Each of the 1,446 participating class members will receive an average individual settlement payment of $182.31. In addition, as a result of the efforts of the class counsel, the Defendants have twice reviewed and amended their policies and procedures associated with the furnishing and maintenance of wage statements so as to ensure compliance with Labor Code sections 226(a)(6), 226(a)(8) and 204. In light of the risks and expense of further litigation in the matter, Judge Shubb granted final certification of the settlement class and approved the settlement set forth in the settlement agreement as fair, reasonable, and adequate. He granted the Plaintiff's Motions for final certification, final approval of class action settlement, attorneys' fees, costs, and incentive award. Solely for the purpose of the settlement, and pursuant to Federal Rule of Civil Procedure 23, the Judge certified the class of all current and former California employees of Beverly Health who were issued one or more wage statements from July 25, 2015, through Sept. 1, 2016. The Judge appointed named Plaintiff Ahmed as the class representative; and Robert J. Wasserman, William J. Gorham III, Nicholas J. Scardigli, and Vladimir J. Kozina of the firm of Mayall Hurley P.C. as the class counsel. The Plaintiff's counsel is entitled to fees in the amount of $150,000, and litigation costs in the amount of $12,186.47. Atticus Administration is entitled to administration costs in the amount of $16,000. $3,375 from the gross settlement amount will be paid to the California Labor and Workforce Development Agency in satisfaction of the Defendants' alleged penalties under the Labor Code Private Attorneys General Act. The remaining settlement funds will be paid to participating class members in accordance with the terms of the settlement agreement. The Judge dismissed the action with prejudice. The clerk is instructed to enter judgment accordingly. A full-text copy of the Court's April 24, 2018 Memorandum and Order is available at https://is.gd/Vp30CW from Leagle.com. Henna Ahmed, Plaintiff, represented by Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley P.C.. Beverly Health and Rehabilitation Services, Inc., a California Corporation & GGNSC Administrative Services, LLC, a Delaware Corporation, Defendants, represented by Adriana Cara -- adriana.cara@dinsmore.com -- Dinsmore & Shohl LLP, Andrew B. Millar -- drew.millar@dinsmore.com -- Dinsmore & Shohl LLP, pro hac vice, Charles Matthew Roesch -- chuck.roesch@dinsmore.com -- Dinsmore and Shohl LLP, pro hac vice, Jessica Grace Wilson -- jessica.wilson@dinsmore.com -- Dinsmore & Shohl LLP & Susan Jackson -- susan.jackson@dinsmore.com -- Dinsmore & Shohl LLP, pro hac vice. BIOGEN INC: Metzler Asset Appeals D. Mass. Ruling to 1st Circuit ---------------------------------------------------------------- Plaintiffs Metzler Asset Management GmbH and Erste-Sparinvest Kapitalanlagegesellschaft mbH filed an appeal from a court ruling in the lawsuit titled Metzler Asset Mgmt., et al. v. Kingsley, et al., Case No. 1:16-cv-12101-FDS, in the U.S. District Court for the District of Massachusetts, Boston. As previously reported in the Class Action Reporter, the case is a putative class action involving alleged violations of the Securities Exchange Act of 1934. The Electrical Workers Pension Fund, Local 103, International Brotherhood of Electrical Workers brought suit, on behalf of a class of similarly situated persons, against Biogen, Inc., and two Biogen employees. The complaint contends that class members were harmed when they purchased Biogen securities at prices that were artificially inflated by the company's false and misleading statements about its products. The action raises issues similar to those raised in In re Biogen Inc. Securities Litigation, No. 1:15-cv-13189 (D. Mass.). The appellate case is captioned as Metzler Asset Mgmt., et al. v. Kingsley, et al., Case No. 18-1369, in the United States Court of Appeals for the First Circuit.[BN] Plaintiffs-Appellants METZLER ASSET MANAGEMENT GMBH, on behalf of itself and all other similarly situated parties, and ERSTE-SPARINVEST KAPITALANLAGEGESELLSCHAFT MBH are represented by: Garrett James Bradley, Esq. THORNTON LAW FIRM LLP 100 Summer St., 30th Floor Boston, MA 02110-0000 Telephone: (617) 720-1333 Facsimile: (617) 720-2445 E-mail: gbradley@tenlaw.com - and - Jonathan Gardner, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005-1108 Telephone: (212) 907-0700 E-mail: jgardner@labaton.com - and - Gregg S. Levin, Esq. Christopher F. Moriarty, Esq. MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464-0000 Facsimile: (843) 216-9512 E-mail: glevin@motleyrice.com cmoriarty@motleyrice.com - and - William H. Narwold, Esq. Motley Rice LLC 20 Church St., 17th Floor Hartford, CT 06103-0000 Telephone: (860) 882-1676 Facsimile: (860) 882-1682 E-mail: bnarwold@motleyrice.com - and - Samuel Howard Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 S Service Rd., Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com Defendants-Appellees STUART A. KINGSLEY, GEORGE A. SCANGOS, PAUL J. CLANCY and BIOGEN, INC., are represented by: James R. Carroll, Esq. Michael S. Hines, Esq. Sara J. van Vliet, Esq. SKADDEN ARPS SLATE MEAGHER & FLOM LLP 500 Boylston St., 23rd Floor Boston, MA 02116-0000 Telephone: (617) 573-4800 E-mail: james.carroll@skadden.com michael.hines@skadden.com sara.vanvliet@skadden.com Interested Party CITY OF MIAMI FIRE FIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST is represented by: Theodore Michael Hess-Mahan, Esq. HUTCHINGS BARSAMIAN MANDELCORN & ZEYTOONIAN LLP 110 Cedar St., Suite 250 Wellesely Hills, MA 02481-0000 Telephone: (781) 431-2231 Facsimile: (781) 431-8726 E-mail: thess-mahan@hutchingsbarsamian.com - and - Samuel Howard Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 S Service Rd., Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com Interested Parties FRANKFURT-TRUST INVESTMENT GMBH and FRANKFURT- TRUST INVESTMENT LUXEMBURG AG are represented by: Guillaume Buell, Esq. Jonathan Gardner, Esq. Francis P. McConville, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005-1108 Telephone: (212) 907-0700 E-mail: gbuell@labaton.com jgardner@labaton.com fmcconville@labaton.com - and - Joshua Louis Solomon, Esq. POLLACK SOLOMON DUFFY LLP 101 Huntington Ave., Suite 530 Boston, MA 02199 Telephone: (617) 439-9800 E-mail: jsolomon@psdfirm.com BJ'S ON THE WATER: Doesn't Pay OT to Server, "Kusel" Suit Alleges ----------------------------------------------------------------- Judith H. Kusel, individually and on behalf of all others similarly situated, Plaintiff v. BJ's On The Water, Inc.; Madlyn M. Carder and William R. Carder, Defendants, Case No. 1:18-cv- 01413-GLR (D. Md., May 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal, and rest periods. Kusel was employed by the Defendants as server from October 5, 2017, to March 23, 2018. BJ's On The Water, Inc. is a Maryland corporation, owning and operating a restaurant and bar in Ocean City, Marylan. [BN] The Plaintiff is represented by: Howard B. Hoffman, Esq. 600 Jefferson Plaza, Suite 304 Rockville, MD 20852 Telephone: (301) 251-3752 Facsimile: (301) 251-3753 BOCAS HOUSE: Removes "Alvarado" Suit to S.D. Florida ---------------------------------------------------- The Defendants in the case captioned as, DOUGLAS J. ALVARADO, individually and on behalf of all others similarly situated, Plaintiff v. BOCAS HOUSE CORAL GABLES, LLC; and MAURICIO MONTOVANI, Defendants, filed a notice to remove the lawsuit from the Eleventh Judicial Circuit Court of Miami-Dade County, Florida, to the U.S. District Court for the Southern District Court of Florida on May 30, 2018. The lawsuit is now assigned Case No. 1:18-cv-22142-CMA (S.D. Fla., May 30, 2018).[BN] The Plaintiff is represented by: Alexandra Sierra-De Varona, Esq. DE VARONA LAW 350 Camino Gardens Blvd., Suite 107 Boca Raton, FL 33432 Telephone: (561) 600-9070 Facsimile: (561) 600-9077 E-mail: asd@devaronalaw.com BOLLA OPERATING: Benitez Seeks Unpaid Spread-of-Hours Pay --------------------------------------------------------- Walter Hernandez Benitez, on behalf of himself and all others similarly situated, Plaintiff, v. Bolla Operating Li Corp. and Bolla Operating Corp., Defendants, Case No. 605760/2018 (N.Y. Sup., May 1, 2018), seeks to recover unpaid spread-of-hours pay and other damages pursuant to New York Labor Law. Defendants own and operate over 45 locations in the State of New York under "Bolla Market." It prepares and serves meals and beverages for its customers. Plaintiffs prepare, package, transport, stock and accept payment for these. They regularly work shifts with a "spread" of over 10 hours without being paid additional hour of pay at the basic minimum wage -- as required by the Hospitality Industry Wage Order. [BN] Plaintiff is represented by: Troy L. Kessler, Esq. Garrett Kaske, Esq. SHULMAN KESSLER LLP 534 Broadhollow Road, Suite 275 Melville, NY 11747 Telephone: (631) 499-9100 BUCKEYE INC: Doesn't Pay OT to Fluid Technicians, Bernstein Says ---------------------------------------------------------------- CHARLES BERNSTEIN, JR., individually and on behalf of all others similarly situated, Plaintiff v. BUCKEYE, INC., Defendant, Case No. 7:18-cv-00097 (W.D. Tex., May 30, 2018) is an action against the Defendant to recover overtime wages pursuant to the Fair Labor Standards Act. Mr. Bernstein Jr. was employed by the Defendant as fluid technician on May 25, 2015. Buckeye, Inc. is a corporation organized under the laws of the State of Texas. [BN] The Plaintiff is represented by: William S. Hommel, Jr., Esq. HOMMEL LAW FIRM 1404 Rice Road, Suite 200 Tyler, TX 75701 Telephone: (903) 596-7100 Facsimile: (469) 533-1618 E-mail: bhommel@hommelfirm.com BUFFALO, NY: Court Dismisses Amended "Burgin" --------------------------------------------- In the case, CHARLES BURGIN, Plaintiff, v. PAMELA C. BROWN, BARBARA SEALS-NEVERGOLD, DONALD A. OLGOVIE, THERESA HARRIS-TIGG, CARL PALADINO, JAMES M. SAMPSON, CHARLES BRANDY, WILL KERESZTES, PATRICIA PIERCE, LAWRENCE QUINN, BUFFALO BOARD OF EDUCATION, and L. NATHAN HARE, Defendants, Case No. 15-CV-201S (W.D. N.Y.), Judge William M. Skretny of the U.S. District Court for the Western District of New York granted the Defendants' motion to dismiss Burgin's amended complaint, and afforded Burgin 45 days to file a second amended complaint. Burgin is the founder of Brotherman's Progress Mentors Matter Advocacy, a group dedicated to advocating for minority male students in the Buffalo, New York, public school system. In 2013 and 2014, Burgin worked to have the Buffalo Board of Education adopt a mentoring program called "5000 Role Models of Excellence Project" in the Buffalo public schools. The program is a life- skills mentoring program designed for minority males (Black and Hispanic) created by Congresswoman Frederica S. Wilson. On June 12, 2013, Buffalo Board of Education members Ralph Hernandez and Lou Petrucci sponsored a resolution calling on the superintendent to conduct an impact assessment of the program as the first step toward implementation. The Board of Education passed the resolution and directed that a cost-analysis study and development of a business plan be completed as the next steps. Staff members of the Board of Education, including Defendant Charles Brandy, were tasked with conducting the cost-analysis study; Burgin was tasked with developing the business plan. According to a Nov. 12, 2013 Committee memorandum concerning implementation of the program sent by Brandy to Defendant Will Keresztes, Associate Superintendent of Educational Services, the Committee convened five times in September and October 2013 to determine the feasibility of implementing the program. Brandy explained to Keresztes that Burgin had provided the Committee with multiple letters of support from area leaders and other materials related to the program. Brandy also relayed that the Committee explored piloting the program in one elementary school and one secondary school, with a focus on 10 of the 25 components of the program. Brandy further advised Keresztes that the Committee determined that the pilot program would take place during the third marking period of the 2013-2014 school year, upon completion of a four- component action plan. The first component of the action plan tasked Burgin with contacting the director of the program to discuss the program's components and ask specific questions developed by the Committee. Brandy informed Keresztes, however, that Burgin had failed to participate in the final Committee meeting and had "ceased all communication." Brandy therefore advised Keresztes that the program is not recommended for implementation in the Buffalo Public Schools in a limited or full capacity at the time. Specifics of the program's core components remain unknown. Burgin alleges that the contents of Brandy's memorandum are false and that he did not cease communication or fail to provide information. After the issuance of this memorandum, Burgin met with Defendant Superintendent Pamela Brown on Dec. 4, 2013, to explain the inaccuracies in Brandy's memorandum and to provide further information, but Brown refused to accept Burgin's written materials and dismissed his efforts to bring Rep. Wilson to Buffalo to help implement the program. Burgin claims that Brandy prepared the false memorandum in conjunction with Defendant L. Nathan Hare and presented it to Brown through Keresztes so that Hare's organization, Erie County Community Action Organization, could contract with the Buffalo Public Schools to provide a different mentoring program. He further claims that Hare conspired to stop the cost-analysis study ordered by the Board of Education as part of a "fraud" by Hare, Brandy, Keresztes, Brown, and other defendants designed to undermine Burgin's and the Committee's chances of implementing the program. By doing so, the Defendants acted to deny the Black plaintiff and minority parents of at-risk male students attending Buffalo Public Schools their rights to establish a proven mentor program for Black and Hispanic at-risk male students that help them stay in school, graduate and attend college. Dissatisfied with Defendant Brown and the Defendants continued failure to adopt the program, Burgin appeared at an April 9, 2014 Board of Education meeting to further voice his complaints. After the Board of Education ultimately declined to adopt the program, Burgin sued pro se on behalf of himself and at-risk minority male students and their parents, alleging a number of federal and state claims. The Defendants moved to dismiss Burgin's amended complaint under Rules 12 (b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction (standing) and failure to state a claim upon which relief can be granted. Judge Skretny finds that while it is clear from the amended complaint that Burgin is exceedingly displeased with Brandy's Nov. 12, 2013 memorandum and the manner in which the Committee and the Board of Education operated as it relates to consideration of the program, on the facts as pleaded, Burgin suffered no legally cognizable injury in the course of the Committee's work or by the Board of Education's failure to adopt the program. Moreover, nowhere in the amended complaint does Burgin plead a close relation to any third party nor does he allege any hindrance that would prevent any one of the at-risk male students or their parents from protecting their own interests. Burgin therefore lacks standing to assert representative claims. Burgin seeks to maintain the suit as a class action, with the class to include minority parents of minority males attending Buffalo Public Schools whose educational prospects for graduation would be enhanced by participating in 5,000 Role Models of Excellence Project Buffalo Chapter. It is well settled, however, that pro se litigants cannot act as representatives of a class. The case is therefore properly considered as an individual action only. Moreover, nowhere in the amended complaint does Burgin plead that he was excluded from participating in or subjected to race discrimination in a federally-funded program. And nowhere does Burgin plead that he was discriminated against because of his race, or that such discrimination was intentional, or that Defendants' actions were motivated by unlawful discrimination. Instead, the Judge finds, Burgin appears to assert federal claim on behalf of the at-risk minority youth for whom the program was intended, which, as noted above, he lacks standing to do. Burgin therefore fails to state a claim under Section 2000. Burgin's remaining claims, to the extent they are cognizable, require interpretation of state law alone, and are thus more appropriately determined in state court in the interests of comity and efficiency. Accordingly, the Judge declines to exercise supplemental jurisdiction over Burgin's state law claims. They are instead dismissed without prejudice under 28 U.S.C. Section 1367 (c)(3). Finally, although it seems unlikely that Burgin could state Fourteenth Amendment or Section 2000d claims, he may be able to state a valid First Amendment claim, depending on the facts and circumstances of the April 9, 2014 school board meeting. Accordingly, the Judge will dismiss Burgin's amended complaint, but grant him 45 days in which to file and serve a second amended complaint that complies with the requirements of Rule 15. For these reasons, Judge Skretney granted the Defendants' Motion to Dismiss, and granted the Plaintiff leave to file a second amended complaint within 45 days of the entry date of the Decision and Order. The Plaintiff's failure to file an Amended Complaint within 45 days of the entry date of the Decision and Order will result in the Plaintiff's case being dismissed and closed without further order of the Court. A full-text copy of the Court's April 24, 2018 Decision and Order is available at https://is.gd/gwsidI from Leagle.com. Charles Burgin, Plaintiff, pro se. Pamela C. Brown, Barbara Seals-Nevergold, Donald A. Olgovie, Theresa Harris-Tigg, Carl Paladino, James M. Sampson, Charles Brandy, Will Keresztes, Patricia Pierce & Lawrence Quinn, Defendants, represented by Edward Allen Betz, Buffalo Schools, Office of Legal Counsel & Kevin M. Kearney -- kkearney@hodgsonruss.com -- Hodgson Russ LLP. Buffalo Board of Education, Defendant, represented by Edward Allen Betz, Buffalo Schools, Office of Legal Counsel. L. Nathan Hare, Former Chairman and Executive Director of United Black Men's think Tank of Buffalo, Defendant, represented by Joseph S. Brown -- jsbrown@hodgsonruss.com -- Hodgson Russ, LLP. BUMBLE BEE: Settlement in "Rodriguez" Suit Has Final Approval ------------------------------------------------------------- In the case, MIGUEL RODRIGUEZ, on behalf of himself, all others similarly situated, and the general public, Plaintiff, v. BUMBLE BEE FOODS, LLC, Defendant, Case No. 17cv2447-MMA (WVG) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California granted the Plaintiff's Motion for Final Approval of Class Action Settlement, and granted in part and denied in part the Plaintiff's Motion for Attorneys' Fees, Costs, and Incentive Award. The Plaintiff brings the putative class action against Bumble Bee, alleging violations of California's False Advertising Law, Consumer Legal Remedies Act, Unfair Competition Law, and breach of express and implied warranties. Bumble Bee is a Delaware limited liability company with its principal place of business in San Diego, California. The Plaintiff is an individual residing in Chula Vista, California. Bumble Bee manufactures and sells a product called "Premium Select Medium Red Smoked Salmon Filets in Oil. In September 2017, the Plaintiff purchased the Medium Red Smoked Salmon Fillets from the Wal-Mart store located at 875 East H. Street, Chula Vista, California. He purchased this product believing that it was high-quality, wild-caught, smoked Alaskan salmon. Instead of receiving high-quality, wild-caught, smoked salmon, he received low-quality, farm-raised, colored, smoke- flavored salmon. He alleges that the packaging of the salmon deceptively stated or suggested that the product was smoked, wild-caught salmon, when it was actually farmed salmon to which liquid smoke flavor had been added The Plaintiff has "lost money" as a result of buying this product because he did not receive what he paid for when purchasing the Medium Red Smoked Salmon Fillets. He seeks to represent a class of all persons who purchased the Medium Red Smoked Salmon Fillets from Nov. 6, 2013 to present, for their own personal, family, or household use and not for resale. Plaintiff commenced the instant action on Dec. 6, 2017. On Jan. 4, 2018, the parties participated in an Early Neutral Evaluation with Magistrate Judge Gallo, where the parties resolved the matter in its entirety. Shortly thereafter, the parties entered into a Class Action Settlement Agreement, which is subject to review under Federal Rule of Civil Procedure 23. On Feb. 1, 2018, the Plaintiff filed a Motion for Preliminary Approval of Class Action Settlement. Bumble Bee filed a notice of non-opposition to the motion. On March 1, 2018, the Court entered an Order of Preliminary Approval of Class Action Settlement pursuant to Federal Rule of Civil Procedure 23(b)(2). On March 26, 2018, the Plaintiff filed the instant motions for Final Approval of Class Action Settlement and for Attorneys' Fees and Costs. Bumble Bee filed a notice of non-opposition to the Plaintiff's motion for Final Approval of Class Action Settlement, but filed an opposition to the Plaintiff's Motion for Attorneys' Fees. Pursuant to the Settlement Agreement, Bumble Bee will begin replacing the current product packaging with revised packaging beginning in the second quarter of 2018. It, however, is under no obligation to recall existing product bearing the current packaging, which inventory may be allowed to "sell through." In the Settlement Agreement, the parties agreed that the Plaintiff's counsel is limited to seeking an incentive award, attorneys' fees, and costs not to exceed $85,000. They further agreed that Bumble Bee may not argue that any such award should amount to less than $30,000. The Plaintiff seeks a combined fee- and-cost award of $80,000, in addition to a $5,000 incentive award for the Plaintiff. Specifically, the Plaintiff seeks attorneys' fees in the amount of $79,067, litigations costs in the amount of $933, and a $5,000 incentive award for Rodriguez. As set forth in the Settlement Agreement, Bumble Bee agrees not to argue that the Court should award less than $30,000 in attorneys' fees, costs, and an incentive payment. As such, Bumble Bee opposes the Plaintiff's request for fees totaling $80,000, and the Plaintiff's request for an incentive award in the amount of $5,000. With respect to the attorneys' fees, the Class Counsel seek approval of the following hourly rates: $715 for Jack Fitzgerald, Esq., $550 for Trevor Flynn, Esq., and $485 for Melanie Persinger, Esq. The Class Counsel further contend that they expended 55.4 hours on the case. Judge Anello granted the Plaintiff's Motion for Final Approval of Class Action Settlement, finding that the settlement is fair, reasonable, and adequate pursuant to Rule 23(e). He also finds that the attorneys' fees in the amount of $34,801 to be reasonable, and approved the attorneys' fees in that amount. The Settlement Class covered by the Order is defined as all persons who, between Dec. 6, 2013 and the date a judgment becomes Final in the Action, purchased, for household use, and not for resale or distribution purposes, Bumble Bee's Medium Red Smoked Salmon. Next, the Judge finds that the Class Counsel's out-of-pocket costs were reasonably incurred in connection with the prosecution of the litigation, were advanced by the Class Counsel for the benefit of the class, and should be reimbursed in full in the amount requested. Accordingly, he approved the Class Counsel's litigation costs in the amount of $933. Finally, as to Class Representative Incentive Award, the Judge finds that by way of the Settlement Agreement, the Plaintiff has agreed to waive any claims for damages. Of particular importance, however, is the short duration of the litigation. Additionally, the Plaintiff does not submit a declaration outlining any personal difficulties or the amount of time expended on the litigation as the class representative. Accordingly, he finds that a $1,500 incentive award is reasonable and falls within the acceptable range awarded in similar cases. Based on this, Judge Anello granted the Plaintiff's Motion for Final Approval of Class Action Settlement, and granted in part and denied in part the Plaintiff's Motion for Attorneys' Fees, Costs, and Incentive Award. He dismissed the action with prejudice. The Clerk of Court is instructed to enter final judgment in accordance with the Order. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/HveJlc from Leagle.com. Miguel Rodriguez, on behalf of himself, all other similarly situated, and the general public, Plaintiff, Jack Fitzgerald -- jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald, PC, Melanie Rae Persinger -- melanie@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald & Trevor Flynn -- trevor@jackfitzgeraldlaw.com -- Hillcrest Professional Building. Bumble Bee Foods, LLC, Defendant, represented by Patrick S. Thompson -- PatrickThompson@perkinscoie.com -- Perkins Coie LLP. BURGER MAKER: Doesn't Pay OT to Grind Supervisors, "Lopez" Claims ----------------------------------------------------------------- ROSA LOPEZ, individually and on behalf of all others similarly situated, Plaintiff v. BURGER MAKER, INC., and SCHWEID AND SONS SOUTH, LLC, Defendants, Case No. 1:18-cv-02127-MLB (N.D. Ga., May 14, 2018) seeks to recover unpaid wages for overtime work, liquidated damages, and declaratory relief. Ms. Lopez was employed by the Defendants as grind supervisor from January 2017 to July 2017 at the Defendants' production plant/facility in College Park, Georgia. Burger Maker, Inc. processes and supplies ground beef products to the foodservice industry. It offers fresh and frozen bulk ground beef and ground beef patties; and Angus ground chuck patties and balls, beef for stews, and CAB ground chuck patties. Burger Maker, Inc. was founded in 1978 and is based in Carlstadt, New Jersey. [BN] The Plaintiff is represented by: Rachel E. Berlin, Esq. BUCKLEY BEAL, LLP 1230 Peachtree Street, NE, Suite 900 Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101 E-mail: rberlin@buckleybeal.com - and - Keith M. Stern, Esq. LAW OFFICE OF KEITH M. STERN, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Telephone: (305) 901-1379 Facsimile: (561) 288-9031 E-mail: employlaw@keithstern.com CANADA: BSE Class Action Ongoing, Trial Expected by Next Fall ------------------------------------------------------------- Canadian Cattlemen reports that the BSE class-action lawsuit against the federal government launched on behalf of producers that was moving toward a possible trial date last fall is still moving through the courts. Duncan Boswell, a senior partner with Gowling WLG in Toronto, says an amended litigation plan was approved by the court on April 30 and offers hope that a trial date can be set by next fall. The plan contains a timetable for final discoveries of the 6,700 new documents the government introduced last fall as the case appeared headed for a trial date in late 2017. "These new documents are on one specific issue so they are going to produce a new person for that and we can't do that until this fall. "Our hope is that as soon as that discovery is done we immediately put it down onto the trial list, then it depends how quickly we can get a date." The original class-action claims were filed in April 2005 in the courts of Alberta, Saskatchewan, Ontario and Quebec on behalf of cattle producers who were residents in Canada on May 20, 2003, alleging that negligence on the part of the federal government and Ridley Inc. caused the BSE crisis in Canada and billions in losses for cattle producers. The class action was initially run co-operatively by lawyers in the four provinces but the class action was certified first in Quebec and Ontario and it was later agreed that suit would be waged first in the Ontario court. The lawsuit is seeking $8 billion in damages due to BSE from 2003 when the first case was discovered to 2005 when the U.S. agreed to accept Canadian cattle under 30 months of age. The case focuses on the 198 head of cattle imported from the U.K. and Ireland from 1982 to 1990, when Ottawa banned the importation of live cattle from countries with BSE, and began monitoring these cattle. In 1993, after a cow imported in 1987 was diagnosed with BSE, the government instituted a trace on all cattle imported from the U.K. and Ireland. Of the 198 head the suit alleges at least 80 had potentially been rendered and possibly turned into meat and bone meal. At least 10 of the 80 were from U.K. herds that had animals diagnosed with BSE. It was known that the prions that cause BSE could be transmitted via feed, the lawsuit says, and the federal government was negligent because it didn't prevent the imported cattle from being used for feed ingredients. Britain banned bovine meat and bone meal in ruminant feed in 1988 but Canada didn't apply its feed ban until 1997. The Canadian Food Inspection Agency's summary report of the first case of BSE in a Canadian cow concluded that the most likely source of BSE would have been the consumption of feed made with meat and bone meal contaminated with the BSE prion before the U.S. and Canada implemented a feed ban in August 1997. The class-action suit has been ongoing since April 2005 when lawyers from Alberta, Saskatchewan, Ontario, and Quebec filed class-action claims on behalf of all Canadian cattle producers. Boswell and another class-action specialist were brought in by Ontario lawyer Cameron Pallett to manage the lawsuit for the original Ontario plaintiff who has since passed away. The new plaintiff for the class is the ranch named in the original Alberta case. Feed maker Ridley Inc. settled in 2008 and agreed to pay $6 million to a trust fund, which has been used to fund the case against the federal government. Ridley was sued for having manufactured infected feed fed to a cow later diagnosed with BSE. Although the class-action suit was filed on behalf of "representative ranchers" in the four provinces, all producers raising beef or dairy cattle between 2003 and 2005 would be eligible for a share of the award if the suit is successful. "In the litigation plan there is provision for mediation, as well, but we have to have the government willing to do that, and if not then we go to trial," says Boswell. For more information on the lawsuit and court documents, see bseclassaction.ca. [GN] CAPITAL MANAGEMENT: Campbell Alleges Wrongful Debt Collections -------------------------------------------------------------- Fred Campbell, individually and on behalf of all others similarly situated, Plaintiff v. Capital Management Services, LP, Defendant, Case No. 1:18-cv-00579-EAW (W.D.N.Y., May 18, 2018), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to the Hon. Elizabeth A. Wolford. Capital Management Services L.P., a collections agency, provides delinquent receivables resolutions. The company was formerly known as Ventus Capital Services, LP and changed its name to Capital Management Services L.P. in October 2006. Capital Management Services L.P. was incorporated in 2004 and is based in Buffalo, New York. [BN] The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW, LLC 78 John Miller Way, Suite 430 Kearny, NJ 07032 Telephone: (862) 227-3106 Facsimile: (862) 204-5901 E-mail: dz@zemellawllc.com CAPITAL MANAGEMENT: Kolbasyuk Appeals Order, Judgment to 2nd Cir. ----------------------------------------------------------------- Plaintiff Yuri Kolbasyuk filed an appeal from the District Court's memorandum decision & order dated April 14, 2018, and judgment dated April 18, 2018, entered in the lawsuit entitled Kolbasyuk v. Capital Management Services, Case No. 17-cv-7499, in the U.S. District Court for the Eastern District of New York (Brooklyn). The nature of suit is stated as consumer credit. As previously reported in the Class Action Reporter, the lawsuit was filed on December 26, 2017. Capital Management is a nationally licensed and recognized collections agency, providing the highest level of delinquent receivables resolution. The appellate case is captioned as Kolbasyuk v. Capital Management Services, Case No. 18-1260, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Yuri Kolbasyuk, on behalf of himself and all others similarly situated, is represented by: Levi Huebner, Esq. LEVI HUEBNER & ASSOCIATES, PC 478 Malbone Street Brooklyn, NY 11225 Telephone: (212) 354-5555 Defendant-Appellee Capital Management Services, LP, is represented by: Kristen H. Smith, Esq. SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P. 3850 North Causeway Boulevard Metairie, LA 70002 Telephone: (504) 846-7943 E-mail: ksmith@sessions.legal CAVIAR: Settles Class Action Over Gratuity for $2.2 Million ----------------------------------------------------------- Megan Rose Dickey, writing for TechCrunch, reports that Square, the payments company led by Jack Dorsey, has agreed to pay $2.2 million to settle a class-action lawsuit involving its on-demand food delivery service, Caviar. Customers who ordered food from Caviar between January 20, 2012 and August 31, 2015 received a notice of the proposed class-action settlement. As part of the settlement, which TechCrunch has reviewed, plaintiff Spencer Janssen's counsel is expected to seek up to $755,000 in fees and costs. Mr. Janssen himself is seeking up to $10,000, which means the remaining $1.44 million will be divvied up among other class members, who can use the money to put toward another Caviar order. The parties agreed there were 93,914 class members, so that comes out to about $15.28 per person. The court will make its decision to approve or deny the settlement on September 21, 2018. The lawsuit claimed Square collected gratuities from customers but didn't pass on that money to the delivery drivers. Square disputes those claims, and also points to the fact that "each driver knew in advance the amount he or she would be paid under his or her contract for each order before accepting and making that delivery," Square's attorney wrote in a court filing. "We have always properly compensated delivery couriers, and discontinued this practice long ago to provide better transparency around costs," a Square spokesperson told TechCrunch. "We have chosen to settle this matter to avoid the cost and distraction of litigation and provide direct benefit to our valued customers." In the agreed-upon settlement, it's reiterated that Square denies all the allegations "and took the position that the use of the term 'gratuity' was neither misleading to reasonable consumers nor unlawful. Defendant contended that the amounts collected as gratuities from Plaintiff were paid to his independent contractor couriers." [GN] CENTRAL TIRE: Underpays Automobile Mechanics, "Allejo" Suit Says ---------------------------------------------------------------- ANTHONY ALEJO, individually and on behalf of all others similarly situated, Plaintiff v. CENTRAL TIRE AND AUTO REPAIR, LTD.; CENTRAL TIRE AND AUTO REPAIR CENTER, LLC; CENTRAL TIRE OF WINDSOR, LLC, ZAIM LIKA, and JOHN DOES 1-100, Defendants, Case No. 7:18-cv-04744 (E.D.N.Y., May 30, 2018) seeks to recover against the Defendants unpaid wages, liquidated damages, reasonable attorneys' fees and costs. Mr. Alejo was employed by the Defendants as automobile mechanic from July 2009 to November 19, 2017. Central Tire and Auto Repair, Ltd is a New York Corporation located at 51 Central Park Avenue, Yonkers, New York. The Company operate automobile repair shops in Yonkers, New York; New Jersey, and East Windsor, New Jersey. [BN] The Plaintiff is represented by: Joshua Parkhurst, Esq. GILES LAW FIRM LLC 825 Third Avenue, 4th Floor New York, NY 10022 Telephone: (201) 577-2644 E-mail: jparkhurst@gileslawfirmllc.com CENTURY FINANCIAL: Dismissal Orders in "Baker" Reversed ------------------------------------------------------- In the case, JAMES BAKER, et al., Appellants, v. CENTURY FINANCIAL GROUP, INC., et al., Respondents, Case No. WD80813 (Mo. App.), Judge Karen King Mitchell of the Court of Appeals of Missouri for the Western District reversed the decisions by the Circuit Court of Clay County to grant three motions to dismiss and three motions for summary judgment, all of which were based on the same statute of limitations defense to the Borrowers' claims against the Respondents under the Missouri Second Mortgage Loan Act ("MSMLA"). The Borrowers are homeowners who obtained second mortgage loans on their Missouri homes from CFG. After making the loans, CFG sold or assigned them to other entities, many of whom are participants in the litigation. The assignees pooled these (and other) loans and placed them in trusts. The pools were used to collateralize bonds or other investment instruments that were sold to investors. The borrowers' monthly mortgage payments created a revenue stream from which payments were made to those who bought the mortgage-backed investments. In some cases, the assignees designated a separate entity to process the payments made by mortgagors. The Bakers commenced the action on June 28, 2000, by filing a petition alleging, among other things, that CFG, Master Financial, Inc. (a) servicer of CFG's Missouri second mortgage loans), and Defendants "Does 1-25," who would later include Lenders, among others, violated the fee limitations of MSMLA in the course of making the Bakers' loan by directly or indirectly charging, contracting for, and/or receiving excessive loan origination fees and other fees not permitted by Section 408.233.1. Approximately a year after commencing the suit, the Bakers filed a First Amended Petition, dated July 12, 2001, joining Ocwen, Impac, and Wilmington as Defendants. On Feb. 26, 2002, the Bakers, joined by the Coxes and the Springers, moved for certification of a Plaintiffs' class. In their motion, the homeowners argued that their claims "are subject to the 6-year statute of limitations, and the class period should therefore include claims arising 6 years before the action was filed. In opposing the motion to certify and in an earlier motion for summary judgment filed by one of the Master Financial Asset Securitization Trusts, the Defendants urged the court to apply the three-year statute of limitations in Section 516.130(2) to the homeowners' claims. On Dec. 19, 2002, the court ruled that the MF Trust was a "moneyed corporation" within the meaning of Section 516.420 and that the applicable statute of limitations was six years. On Jan. 2, 2003, the court issued its Order Certifying Plaintiff Class pursuant to Rule 52.08.10 The court defined the class as all individuals who, on or after June 28, 1994: obtained a Second Mortgage Loan from Century Financial; and who paid fees or interest in violation of the MSMLA, or who financed the payment of fees or interest in violation of the MSMLA as part of the principal loan balance, at or before closing . In addition to certifying the class, the court determined, consistent with its denial of the MF Trust's summary judgment motion, that the six-year statute of limitations in Section 516.420 applied to the Plaintiffs' claims. Shortly after class certification, the Borrowers filed their Third Amended Petition, dated Feb. 5, 2003, joining Bank of New York Mellon (BNYM) and Republic as Defendants. They filed their Fourth Amended Petition ("Petition"), the operative pleading for purposes of the appeal, on Feb. 3, 2004, joining Banc One Financial Services, Inc., predecessor to Chase, as a Defendant. The Petition asserts that the Lenders, among others, became liable on CFG's Missouri loans just as CFG is and would be liable because the loans are "high-cost" mortgages under the Home Ownership and Equity Protection Act ("HOEPA"). The Petition further alleges that Lenders, among others, directly violated the MSMLA, and continued repeatedly to violate it, by charging and/or receiving interest and principal on the loans, which included portions of the illegal settlement charges that had been financed as part of the principal loan amounts. Under the authority of Section 408.236 of the MSMLA, the Borrowers seek to recover all excessive loan origination and other fees they were charged in connection with the CFG loans and all interest paid or to be paid on the loans; they also seek prejudgment interest, punitive damages, reasonable attorneys' fees, and equitable relief under Section 408.562. In 2006, while the case was pending, the court issued an opinion in Schwartz v. Bann-Cor Mortgage, where they ruled that the six- year statute of limitations in Section 516.420 applies to MSMLA claims. Thereafter, the Borrowers and the Lenders proceeded with the understanding that the applicable limitations period was six years until the U.S. Court of Appeals for the Eighth Circuit issued its opinion in Rashaw v. United Consumers Credit Union. Relying on Rashaw, the Eighth Circuit subsequently held that MSMLA claims are subject to the three-year limitations period in Section 516.130(2), rather than the six-year limitations period in Section 516.420. Based on the Eighth Circuit's pronouncement of the applicable limitations period, BNYM filed a Motion to Dismiss the Petition, arguing that the Borrowers' claims were barred by the three-year statute of limitations in Section 516.130(2). The Borrowers filed Suggestions in Opposition to BNYM's Motion to Dismiss, and, after additional submissions by both sides, the court granted BNYM's motion on Dec. 1, 2015, based on the statute of limitations defense. On the heels of BNYM's successful motion, Ocwen and Republic moved to dismiss the Petition as time barred by Section 516.130(2). Then, Wilmington filed a motion for partial summary judgment, which was followed by Impac's motion for summary judgment, both relying on the statute of limitations defense. On Nov. 15, 2016, the court dismissed Ocwen and Republic and granted summary judgment to Wilmington and Impac. On Feb. 9, 2017, the Borrowers moved the trial court to enter final judgment on their claims and to stay the remainder of the class action pending Borrowers' appeal of the court's prior dismissal and summary judgment rulings. Before the court ruled on the Borrowers' motion for a final judgment and stay, Chase moved for summary judgment raising the statute of limitations defense. The court granted Chase's motion on May 23, 2017. The next day, it granted the Borrowers' motion for a final judgment, determining that there was "no just reason for delay" and staying the action as to the remaining defendants pending the Borrowers' appeal of the court's statute of limitations rulings. The court's May 24, 2017 judgment ended the Borrowers' claims against the Lenders based on a common legal issue and is a final judgment subject to appeal pursuant to Rule 74.01(b). The appeal follows. The Borrowers raise six points on appeal. In their first point, they argue that the court erred in granting the Lenders' dismissal and summary judgment motions based on the statute of limitations because their claims are subject to the six-year limitations period in Section 516.420, rather than the three-year limitations period in Section 516.130(2). In their remaining five points, the Borrowers argue that the court erred in finding their claims time barred under the three-year statute of limitations in Section 516.130(2) because, even under the shorter limitations period, their claims are timely based on the following legal theories: (1) HOEPA's derivative liability (Point II), (2) accrual of claims against Lenders occurs when they acquire or begin servicing the loans (Point III), (3) the "continuing or repeated wrong" exception to accrual of claims (Point IV), (4) the relation back doctrine (Point V), and (5) class action tolling (Point VI). Judge Mitchell rejects the Lenders' reading of Section 516.420 as applying the statute's six-year statute of limitations exclusively to causes of action that, but for the Defendant's status as a moneyed corporation, would be subject to the statute of limitations in Sections 516.380-.400. She says the express language of Section 516.420 covers claims for penalties authorized by civil statutes like the MSMLA. Having found that the Borrowers' claims are subject to the six- year statute of limitations in Section 516.420, rather than the three-year limitations period in Section 516.130(2), the Judge does not reach the Borrowers' alternative arguments regarding the timeliness of their claims under Section 516.130(2) (Points II- IV). Accordingly, Judge Mitchell reversed the motion court's decision to grant BNYM's, Ocwen's, and Republic's motions to dismiss the Borrowers' claims as untimely. Likewise, she reversed the court's decision to grant summary judgment to Impac, Wilmington, and Chase on the statute of limitations defense. The Judge remanded the case for further proceedings consistent with the decision, including a determination of BNYM's motion to dismiss for lack of personal jurisdiction. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/jEa5sk from Leagle.com. Kip D. Richards -- krichards@wbsvlaw.com -- R. Frederick Walters -- fwalters@wrrsvlaw.com -- J. Michael Vaughan -- mvaughn@stuartkane.com -- and David M. Skeens -- dskeens@wrrsvlaw.com -- Kansas City, MO, Attorneys for Appellants. Mark A. Olthoff -- molthoff@polsinelli.com --and Michael S. Foster -- mfoster@polsinelli.com -- Kansas City, MO, Attorneys for Respondents Republic Bank, Wilmington Trust Company, and Ocwen Loan Servicing LLC. Michael J. Abrams -- mabrams@lathropgage.com -- and R. Kent Sellers -- ksellers@lathropgage.com -- Kansas City, MO, and John H. Cobb (pro hac vice) and Stacie C. Knight (pro hac vice), Charlotte, NC, Attorneys for Respondent The Bank of New York Mellon. Barry L. Pickens -- bpickens@spencerfane.com -- Kansas City, MO, Attorney for Respondents Impac Funding Corporation, Impac Mortgage Holdings, Inc., Impac Secured Assets Corp., IMH Assets Corporation, and Deutsche Bank National Trust Company, in its capacity as former trustee for Impac Secured Assets CMB Trust Series 1998-1 and Impac CMB Trust Series 2000-2. Daniel L. McClain -- dlm@danmcclainlaw.com -- Kansas City, MO, Attorney for Respondent JPMorgan Chase Bank, N.A. as Successor by Merger to Banc One Financial Services, Inc. CEPHALON INC: UHS MOU Enforceable in Teva Pharma Suit ----------------------------------------------------- In the case, TEVA PHARMACEUTICAL INDUSTRIES, LTD., et al., Plaintiffs, v. UNITEDHEALTHCARE SERVICES, INC., Defendant, Civil Action No. 16-4870 (E.D. Pa.), Judge Mitchell S. Goldberg of the U.S. District Court for the Estern District of Pennsylvania held that the Memorandum of Understanding ("MOU") sets forth the essential terms of a settlement and constitutes a binding, enforceable, and unambiguous contract. The case arises out of a set of antitrust actions, brought pursuant to FTC v. Actavis, Inc., 570 U.S. 136 (2013), which involve reverse settlement payments between the brand name manufacturer of the drug Provigil and various generic drug manufacturers. On July 28, 2016, UHS commenced an individual antitrust action against the brand manufacturer Cephalon, Inc. and two generic manufacturers Teva Pharmaceutical Industries/Teva Pharmaceuticals USA, Inc. and Barr Pharmaceuticals, Inc. ("Cephalon Parties"), and several other Defendants, in the U.S. District Court for the District of Minnesota, captioned United Healthcare Services, Inc. v. Cephalon, Inc., et al. The claims raised in that action were substantially similar to those raised in the Vista HealthPlan action, but for the fact that they were brought under a Minnesota antitrust statute. That case was subsequently transferred to the Court on Feb. 6, 2017. Following Judge's Goldberg's denial of class certification for the end-payor plaintiffs in the case of Vista Healthplan v. Cephalon, Inc., et al., the putative class Plaintiffs and a separate group of third-party payers -- of which UHS was a part - - allegedly reached a settlement agreement with the Cephalon Parties. UHS has renounced the settlement, claiming that the terms set out in the MOU do not constitute a binding contract and are unenforceable. UHS also asserts that even if the MOU is valid, its lawyers were not authorized to enter into such an agreement. On Sept. 9, 2016, the Cephalon Parties initiated the action against UHS to enforce the MOU. They allege that UHS breached the MOU by failing to abide by its terms. On Dec. 18, 2017, and following discovery, Cephalon Parties have moved for partial summary judgment on the sole issue of whether the contract is binding and enforceable as written (the question of the lawyers' authority involves factual issues not appropriate for disposition under Federal Rule of Civil Procedure 56). UHS responded on Jan. 26, 2018, and the Cephalon Parties filed their reply brief on Feb. 16, 2018. Notwithstanding UHS' efforts to inject complexity into the dispute at issue, Judge Goldberg holds that the resolution remains relatively straightforward. UHS, as part of a group of Settling Health Plans, entered into a settlement agreement, memorialized in the MOU, wherein it would receive a $77 million disbursement out of a total $125 million payment from the Cephalon Parties in exchange for a full release of all of its Provigil-related claims. Although the MOU contemplated the entry of a later, more detailed agreement covering more of the logistical details, the MOU itself, by its very terms, was a binding contact as to the essential terms regarding the payment and the release. UHS' identification of alleged ambiguities neither deprives the MOU of sufficient definiteness nor creates a genuine issue of material fact as to the appropriate interpretation of the essential terms. While this finding resolves the interpretation of the MOU, the Judge it does not resolve the final issue of whether the MOU can be enforced. UHS' argument on the issue is that its counsel did not have authority to enter into the MOU on its behalf. This raises a dispute which cannot be decided on a motion for summary judgment. A full-text copy of the Court's April 20, 2018 Memorandum is available at https://is.gd/T6hhuY from Leagle.com. TEVA PHARMACEUTICAL INDUSTRIES LTD., Plaintiff, represented by BRADLEY H. WEIDENHAMMER -- bradley.weidenhammer@kirkland.com -- KIRKLAND & ELLIS LLP, BRITT CRAMER -- britt.cramer@kirkland.com - - KIRKLAND & ELLIS LLP, JAY P. LEFKOWITZ -- lefkowitz@kirkland.com -- KIRKLAND & ELLIS, JOSEPH E. WOLFSON -- jwo@stevenslee.com -- STEVENS & LEE, ADAM T. HUMANN -- adam.humann@kirkland.com -- KIRKLAND & ELLIS LLP & BRENDAN E. RYAN -- brendan.ryan@kirkland.com -- KIRKLAND & ELLIS LLP. TEVA PHARMACEUTICALS USA, INC. & BARR PHARMACEUTICALS, INC., Plaintiffs, represented by BRADLEY H. WEIDENHAMMER, KIRKLAND & ELLIS LLP, BRITT CRAMER, KIRKLAND & ELLIS LLP, JOSEPH E. WOLFSON, STEVENS & LEE, ADAM T. HUMANN, KIRKLAND & ELLIS LLP & BRENDAN E. RYAN, KIRKLAND & ELLIS LLP. CEPHALON, INC., Plaintiff, represented by BRADLEY H. WEIDENHAMMER, KIRKLAND & ELLIS LLP, BRITT CRAMER, KIRKLAND & ELLIS LLP, JOSEPH E. WOLFSON, STEVENS & LEE, ADAM T. HUMANN, KIRKLAND & ELLIS LLP & BRENDAN E. RYAN, KIRKLAND & ELLIS LLP. PENNSYLVANIA TURNPIKE COMMISSION, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED & DISTRICT COUNCIL 37 HEALTH & SECURITY PLAN, Intervenor Plaintiffs, represented by DIANA J. ZINSER -- dzinser@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., JEFFREY L. KODROFF -- jspector@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF PC, JOHN A. MACORETTA -- jmacoretta@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., JOSEPH H. MELTZER -- jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP & TERENCE S. ZIEGLER -- tziegler@ktmc.com -- Kessler Topaz Meltzer & Check, LLP. SHIRLEY PANEBIANO, Intervenor Plaintiff, represented by KEVIN B. LOVE, HANZMAN CRIDEN & LOVE, P.A., DIANA J. ZINSER, SPECTOR ROSEMAN & KODROFF, P.C., JEFFREY L. KODROFF, SPECTOR ROSEMAN & KODROFF PC, JOHN A. MACORETTA, SPECTOR ROSEMAN & KODROFF, P.C., JOSEPH H. MELTZER, Kessler Topaz Meltzer & Check, LLP & TERENCE S. ZIEGLER, Kessler Topaz Meltzer & Check, LLP. UNITEDHEALTHCARE SERVICES, INC., Defendant, represented by ABBY L. DENNIS -- adennis@bsfllp.com -- BOIES SCHILLER & FLEXNER LLP, ERIC W. BUETZOW -- ebuetzow@zelle.com -- ZELLE LLP, HAMISH P.M. HUME -- hhume@bsfllp.com -- BOIES SCHILLER & FLEXNER LLP, JONATHAN M. WATKINS -- jwatkins@zelle.com -- ZELLE LL P, JUDITH A. ZAHID -- jzahid@zelle.com -- ZELLE LLP, KYLE SMITH -- ksmith@bsfllp.com -- BOIES SCHILLER & FLEXNER LLP, MARTHA L. GOODMAN -- mgoodman@bsfllp.com -- BOIES SCHILLER FLEXNER LLP & JONATHAN R. MACBRIDE -- jmacbride@zelle.com -- ZELLE LLP. VISTA HEALTHPLAN, INC., ON BEHALF OF ITLSELF AND ALL OTHERS SIMILARLY SITUATED & JEFFREY R. KRINSK, AN INDIVIDUAL, Movants, represented by JEFFREY L. KODROFF, SPECTOR ROSEMAN & KODROFF PC & JOHN A. MACORETTA, SPECTOR ROSEMAN & KODROFF, P.C.. CHARTSWAP LLC: Asher Sues over Excessive Fees for Medical Records ----------------------------------------------------------------- Robbie Asher, individually and on behalf of all others similarly situated, Plaintiff v. ChartSwap, LLC, Defendant, Case No. 77276980 (Fla. Cir., Hillsborough Cty., May 17, 2018) alleges that the Defendants violated the Florida Administrative Code by charging the Plaintiff excessive fees for medical records. According to the complaint, on January 2, 2018, the Plaintiff requested her physician to provide her copies of her own patient medical records, and that request was submitted on the Plaintiff's behalf by the Plaintiff's legal representative. On January 30, 2018, the Defendant sent Plaintiff's legal representative an invoice charging $6 for one page of copies of her own patient medical records. This invoice included a $5 "Electronic Transaction Fee." Besides charging unlawfully excessive fees, the Defendant also refuses to produce the medical records until the unlawfully excessive fees are paid. The Defendant's routine practice throughout the State of Florida is to require the patient to pay unlawfully excessive fees prior to delivery of the patient's own medical records, thus essentially holding the records for "ransom." In order to obtain the copies of her own patient medical records, the Plaintiff paid the Defendant's unlawfully excessive charges, under protest. ChartSwap, LLC is a corporation doing business under the laws of the State of Florida. The company is in the business of retrieving, duplicating, and delivering copies of patient medical records on behalf of various health care providers throughout he state of Florida. [BN] The Plaintiff is represented by: Scott R. Jeeves, Esq. THE JEEVES LAW GROUP, P.A. 954 First Avenue North St. Petersburg, FL 33705 Telephone: (727) 894-2929 E-mail: sjeeves@jeeveslawgroup.com khill@jeeveslawgroup.com - and - J. Daniel Clark, Esq. CLARK & MARTINO, P.A. 3407 W. Kennedy Boulevard Tampa, FL 33609 Telephone: (813) 879-0700 Facsimile: (813) 879-5498 E-mail: dclark@clarkmartino.com rsmith@clarkmartino.com - and - David M. Caldevilla, Esq. De la PARTE & GILBERT, P.A. P.O. Box 2350 Tampa, FL 33601-2350 Telephone: (813) 229-2775 E-mail: dcaldevilla@dgfirm.com serviceclerk@dgfirm.com CHESAPEAKE BAY: Addt'l Class Notice Bid in "Meuller" Partly OKd --------------------------------------------------------------- In the case, KRISTINA MUELLER, et al. Plaintiffs, v. CHESAPEAKE BAY SEAFOOD HOUSE ASSOCIATES, LLC, Defendant, Civil Action No. ELH-17-1638 (D. Md.), Judge Ellen Lipton Hollander of the U.S. District Court for the District of Maryland granted in part and denied in part the Plaintiffs' Motion for Additional Court- Authorized Notice of Lawsuit. The Muellers are former employees of Chesapeake Bay, which owns or operates multiple Chili's and On The Border restaurants in Maryland, Virginia, and West Virginia. Pursuant to 29 U.S.C. Section 216(b), the Plaintiffs filed a Motion for Conditional Certification and to Facilitate Identification and Notice to Similarly-Situated Employees, along with a supporting memorandum of law and two exhibits. They asked the Court to grant conditional certification of a collective class for the claims alleged in the matter under the Fair Labor Standards Act ("FLSA") owing an early Court-approved notice of the action and by allowing potential opt-ins to join the matter. Thereafter, the parties filed a Joint Status Report and Stipulation Regarding Conditional Certification, informing the Court that Chesapeake Bay did not oppose conditional certification of a collective action, and that the parties had agreed to the terms of the proposed notice and opt-in forms. Additionally, the parties agreed, that within 30 calendar days of the Court's approval of the proposed Notice, Defendant is to produce directly to the Plaintiffs' counsel a list of the full name and last known residential address of each and every individual who is or was employed as a server and/or bartender for Defendant during the period of June 15, 2014 until June 15, 2017. The putative class members will have a period of 60 calendar days from the date that the Notice is mailed to submit a form consenting to join the lawsuit. The Parties have agreed that the Notice Period will commence 10 business days from the date the Plaintiffs are provided with the list of potential class members from the Defendant. By Order of Sept. 22, 2017, Judge Hollander granted the Motion for Conditional Certification. In addition, she approved the Joint Stipulation, the proposed notice, and the proposed opt-in form. Thereafter, Chesapeake Bay provided the Plaintiffs with the names and addresses of 2,805 current and former Chesapeake Bay employees. The Plaintiffs aver that Notice and Opt-In Forms were timely mailed to all of the current and former employees at the addresses provided. The deadline for potential class members to join the lawsuit was Dec. 29, 2017. The Court received more than 115 Opt-In Forms. In the Motion filed on Dec. 14, 2017, the Plaintiffs claim that a substantial portion of the potential class has not received notice of the lawsuit. Further, they claim that Chesapeake Bay has made improper contacts with members of the prospective class by presenting an arbitration agreement to its current employees. In the Motion, the Plaintiffs asks for several forms of relief, including (1) an Order compelling the Defendant to produce to the Plaintiffs' counsel a list of the last known email address of every individual listed on the class list who has yet to join this matter; (2) that the Plaintiffs be allowed to send additional class notice by mail and email to all prospective class members; (3) an extension of the opt-in deadline; and (4) that additional language be included in the notice to make clear to all prospective Plaintiffs that the signing of and/or distribution of an arbitration agreement does not prevent them from joining the lawsuit. The Plaintiffs argue that Chesapeake Bay made improper contacts with the potential class members by distributing the Arbitration Agreement to current employees. The Defendant counters that the Agreement provides no basis to require additional notification because it was issued only to a small portion (about 20%) of the potential class, expressly carves out this lawsuit and does not affect the right of potential class members to participate in the lawsuit. Judge Hollander finds that it is uncontested that a particular form of communication occurred between Chesapeake Bay and some 573 potential class members after suit was filed and before the collective action had been certified. The timing of the Arbitration Agreement's dissemination to potential class members, whether or not intentional, may have confused potential class members as to their ability to opt in to this litigation. Moreover, the Agreement may have dissuaded potential class members from joining this litigation. Accordingly, the Judge says the dissemination of the Arbitration Agreement to the potential class members may have created confusion in the context of the FLSA collective action litigation. Therefore, the potential class members who received the Arbitration Agreement are entitled to new notice, including language making clear that the Arbitration Agreement does not prevent them from joining the litigation. The Plaintiffs theorize that too few potential class members have opted-in to the litigation. Therefore, they ask that a second round to notices be sent by email to all potential class members who have not opted-in to the litigation. In Judge's view, the Plaintiffs engage in mere speculation as to the reason why these potential class members did not opt-in to the suit. Therefore, she will deny the request for a second round of notices to all potential class members who have not opted in. However, new notices will be provided to those former and current employees whose prior notices were returned as undeliverable, and to those former and current employees who were presented with the Arbitration Agreement. For the foregoing reasons, Judge Hollander granted in part and denied in part the Plaintiffs' Motion. An Order follows. A full-text copy of the Court's April 20, 2018 Memorandum Opinion is available at https://is.gd/PpoZmZ from Leagle.com. Kristina Mueller & Jill Mueller, Plaintiffs, represented by Benjamin L. Davis, III -- bdavis@nicholllaw.com -- Law Offices of Peter T. Nicholl & Robert Joseph Leonard -- rleonard@nicholllaw.com -- Law Offices of Peter T. Nicholl. Joel Lantz, Corrinn Barnett, Brandy Chapman, Katelyn Joy Collins, Abigayle Davey, Megan Dorman, Bradley Fauver, Angela Fitzgerald, Ryan Thomas Flake, Tyler Marks, Kaili Martin, Dale Mitchell, Jose Rodriguez, Deborah Charlene Stone, Connor Wilks, Bailey Marianne, Stacey Coffey, Gabrielle Cunningham, Adrienne Ellison, Kameron Ford, Ashley Homer, Eliana Lawson, Laurel Masters, Chelsea Pinkcett, Gerald Powers, Lara Prettyman, Trevor Sherwin, Kayla Smith, Lindsey Thompson, Skylar Trent, Andrea Willcockson, Selah Wilson, J'Nai Cheek, Diana Porath, Diaudra Daniel, Nichole Perkins, Alana Taylor, Dominique Lawrenece, Sam Bonette, Amanda Conway, William Downes, Shanara Helton, Christina Kalathas, Jennifer Lacko, Virginia Lewis, Sydni Lemoine, Sabrina Mayo, Joshua Nissley, Ginny Rutledge, Frantz Simon, Taylor Smoske, Shannon Wilson, Bailey Bartholme, Bryan Abramson, Kaelie Friedberg, Sydney Barnhart, Laurie Hairston, Cara Newman, SiVanh Keovongphet, Kathleen DiCarlo, Melissa Shaffer, Anthony De Los Santos, Stephanie Ruzicka, Ashton Hood, Victoria Bailey, Nicole Thorne, Schaller Bouaphanh, Heather Biesel, Charles Silver, Chris Dykstra, Shelbi Washington, Sean Sullivan, Chelsea Shumar, Celeste Bruce, Delcy Bradford, Kaylee Hess, Sydney Brown, Travis Cole, Whitney Cooper, Glenda Brown, Charlotte Nickens, Miranda Petagna, Hana Syan, James Chiominto, Sarah Newsome, Sydney Jordan, Brandie Belcher, Lisa Wyland, Kayla McAfee, Timothy Mathis, Melvin Roundtree, Sarah Esposito, Melissa Harbin, Rebecca Sefton, Jonathan Ball, Robin Ball, Jordan Bunge, Alex Farrington, Samantha Garner, Angela Garner, Jennifer Garrard, Kristen Hedge, Wanda Payne-Banks, Saige Gilpin, Emily Harding, Emily Sullivan, Tania Manlove, Jennifer Temple, Gabriel Moore, Ashley Redding, Raymond Geisler, Traci Maske, Michael Featherstone, Dana Diaz, Mykala Monroe, Charlene Delbridge, Stephanie Carrion, Stephanie Travers, Brittny Lantz, Stephanie Tamburrino, Jessica Bragg, Jessica Barnes, Bianca Cine, Jazsmine Benton & Amanda Jordan, Plaintiffs, represented by Benjamin L. Davis, III, Law Offices of Peter T. Nicholl. Deonta Milburn, Plaintiff, pro se. Michael Sydnor, Plaintiff, pro se. Sarah Pasley, Plaintiff, pro se. Judith Kramer, Plaintiff, pro se. Lacey Thompson, Plaintiff, pro se. Chesapeake Bay Seafood House Associates, L.L.C., Defendant, represented by Emmett F. McGee, Jr. -- Emmett.McGee@jacksonlewis.com -- Jackson Lewis P.C. & Keith David Hudolin -- Keith.Hudolin@jacksonlewis.com -- Jackson Lewis P.C.. CHI MANAGEMENT: Underpays Merchandiser, "Castello" Suit Says ------------------------------------------------------------ Roby L. Castello, individually and on behalf of all others similarly situated, Plaintiff v. CHI MANAGEMENT GROUP, LP; CROSSMARK, INC.; and DOES 1 through 100, Defendants, Case No. BC706906 (Cal. Super., Los Angeles Cty., May 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Castello was employed by the Defendants as merchandiser from March 2014 to April 30, 2018. Chi Management Group, LP is a corporation organized under the laws of the State of Delaware. [BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 322-4772 Facsimile: (424) 322-4775 E-mail: slidman@lidmanlaw.com enguyen@lidmanlaw.com CHINA AGRITECH: Limitation Period Tolled for Individual Claims -------------------------------------------------------------- Hazel Bradford, writing for Pensions & Investments, reports that the Supreme Court on June 11 reduced the options investors have for filing repeated class-action lawsuits once an initial statute of limitations is reached. Writing the unanimous decision in China Agritech vs. Resh, Justice Ruth Bader Ginsburg said, "there is little reason to allow plaintiffs who passed up opportunities to participate in the first (and second) round of class litigation to enter the fray several years after class proceedings first commenced." The issue in the case was whether the so-called "American Pipe" precedent, under which statutes of limitations are suspended for all members of a class during the time a class action is pending, applies when class members later seek to bring another class action. The case involved China Agritech's 2011 stock decline after publication of several negative research reports on the company. After two different District Courts denied class certification, Michael Resh filed a third putative class-action lawsuit in 2014, which was dismissed because it came after the two-year limitation period. The 9th U.S. Circuit Court of Appeals reversed the dismissal, noting that the limitation period was tolled, or suspended, for individual claims during two previous class actions against China Agritech. "The practical impact of the court's ruling is to provide more power to the punch of an order denying class certification," said Michael Biles, Esq. -- mbiles@kslaw.com -- King & Spalding partner, in an emailed statement. "The Supreme Court clarified that American Pipe only tolls individual claims," and judicial efficiency arguments that justified tolling for individual claims do not apply to class claims. "This means that plaintiffs who wish to proceed with a class action following an order denying class certification must get the order reversed on appeal -- they cannot recruit new shareholders and file another class action," said Mr. Biles. [GN] CHINA AGRITECH: Obtains Favorable Ruling in Securities Case ----------------------------------------------------------- Marcia Coyle, writing for The National Law Journal, reports class action defendants scored an important victory on June 11 when a unanimous U.S. Supreme Court barred so-called stacked, or follow- on, cases that are filed after the expiration of a statutory time limit. The justices, ruling in a securities case, said its 1974 decision in American Pipe & Construction v. Utah suspends the statute of limitations while a putative class action is pending, which allows unnamed class members to join individually or to file separate claims if the class fails. "But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations," wrote Justice Ruth Bader Ginsburg for the court in China Agritech v. Resh. Both the Private Securities Litigation Reform Act, which governed the litigation before the court, and Federal Rule of Civil Procedure 23, which applies to nonsecurities class actions, "evince a preference" for barring untimely successive class actions by emphasizing early resolution of class certification and class representation, Ginsburg wrote. The case before the court, the third class action brought on behalf of purchasers of China Agritech's common stock, alleged violations of the Securities Exchange Act of 1934. The law has a two-year statute of limitations that begins to run when facts constituting the violation are discovered. A federal district court had denied class certification to two earlier successive class actions that made materially identical allegations against China Agritech for fraud and misleading business practices. Michael Resh, who had not sought lead plaintiff status in those earlier class actions, filed suit in 2014, a year and a half after the statute of limitations had expired. The U.S. Court of Appeals for the Ninth Circuit in May 2017 reversed the district court's dismissal of Mr. Resh's suit as untimely. The circuit courts had divided over whether American Pipe could, as the Ninth Circuit concluded, save otherwise untimely successive class claims. Justice Ginsburg said nothing in America Pipe or the court's decisions applying it "so much as hints" that tolling extends to otherwise time-barred claims. "We hold that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action," Justice Ginsburg wrote. "The 'efficiency and economy of litigation' that support tolling of individual claims do not support maintenance of untimely successive class actions; any additional class filings should be made early on, soon after the commencement of the first action seeking class certification." Locke Lord partner Rusty Perdew -- rperdew@lockelord.com -- in Chicago said the decision takes a "practical and realistic approach" and gives class defendants an important victory. The Ninth Circuit's decision, he said, "would have permitted plaintiffs to indefinitely extend statutes of limitations and relitigate class certification by filing successive class actions after class certification was denied." However, Noelle Reed -- noelle.reed@skadden.com -- a partner at Skadden, Arps, Slate, Meagher & Flom, cautioned that the decision, along with the court's 2017 decision in California Public Employees' Retirement System v. ANZ Securities, "may spur plaintiffs to file multiple 'protective' class actions -- possibly in competing courts -- to avoid having their class claims time-barred if they are not able to obtain class certification before limitations or repose periods expire." Justice Sonia Sotomayor concurred in the court's judgment, explaining that she agreed with the court's decision as it applied to class actions under the Private Securities Litigation Reform Act of 1995, but not as to class actions not subject to that act. Justice Sotomayor said there are important differences between classes governed by the 1995 act and classes subject to Rule 23. "The majority's conclusion that absent class members were not diligent because they failed to ask to be the class representative in a prior suit makes sense only in the PSLRA context," she wrote. "The same conclusion simply does not follow in the generic Rule 23 context, where absent class members are most likely unaware of the existence of a putative class action." China Agritech's counsel, Seth Aronson -- saronson@omm.com -- partner at O'Melveny & Myers, had argued that the Ninth Circuit's rule "impermissibly extends equitable tolling when the plaintiffs have not exercised diligence." Those absent class members, he said, could have sought to protect their rights through individual actions when the class failed. Instead, they "slept on their rights and are thus not entitled to equity." Mr. Resh's counsel, David Frederick -- dfrederick@kellogghansen.com -- of Kellogg, Hansen, Todd, Figel & Frederick, had countered that a timely class action suspends the limitations as to all asserted class members and "puts defendants on fair notice of potential liability in a subsequent class action asserting similar claims." The U.S. Chamber of Commerce, the Washington Legal Foundation and others supported China Agritech in amicus briefs. Mr. Resh drew supporting briefs from a group of plaintiffs in post-Walmart successor class actions, Public Citizen, AARP and a group of retired federal judges, among others. [GN] CHINA AGRITECH: SCOTUS Issues Unanimous Decision in Tolling Issue ----------------------------------------------------------------- Walter Olson, writing for CATO, reports that class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it. Both phenomena were involved in the June 11 unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late- arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite? Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept "no" for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business. The unanimity is significant. On procedural and jurisdictional issues, at least, today's liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote the opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again on June 11: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court's holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA). The Senate might want to quiz future liberal nominees -- yes, there will be such -- on whether they more favor the Ginsburg or the Sotomayor approach to these issues. [GN] CHINA AGRITECH: Winston & Strawn Attorneys Discuss SCOTUS Ruling ---------------------------------------------------------------- Linda T. Coberly, Esq., and Sean H. Suber, Esq., of Winston & Strawn LLP, in an article for Lexology, wrote that on June 11, the Supreme Court issued its opinion in China Agritech, Inc. v. Resh et al., No. 17-432, resolving a longstanding question about the operation of statutes of limitations in class actions. According to the Court, although a pending class action tolls the statute of limitations for absent class members relating to their individual claims, it does not permit them to avoid the statute of limitations for a new class action. The opinion clarifies the reach of what is known as American Pipe tolling, eliminating the concern that a statute of limitations can be extended indefinitely by "stacking" class actions on top of one another. This case arose after an enterprising plaintiff relied on the Supreme Court's 1974 decision in American Pipe & Construction Co. v. Utah to bring a securities class action a year and a half after the statute of limitations had expired. The plaintiff had been an unnamed class member in an earlier putative class action on the very same claims. When the earlier class action failed, he filed a new one, relying on American Pipe to argue that the limitations period had been tolled while the earlier suit was pending. The district court dismissed his new class action complaint as time barred. The Ninth Circuit reversed, holding that American Pipe allowed him to claim the benefit of tolling for purposes of filing a new class action lawsuit, and reasoning that this outcome "would advance the policy objective that led the Supreme Court to permit tolling in the first place." The Supreme Court granted certiorari to resolve a split among the circuits on this issue. The Supreme Court unanimously rejected the Ninth Circuit's view, holding that "American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action." The Court explained that American Pipe" addressed only putative class members who wish to sue individually after a class certification denial." According to the Court, the policy objective of American Pipe does "not support maintenance of untimely successive class actions." Instead, consistent with the goals of "efficiency and economy of litigation," "any additional class filings should be made early on, soon after the commencement of the first action seeking class certification." To hold otherwise would be to "allow the statute of limitations to be extended time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation." Because the tolling for these stacked claims "could be limitless," the Court reversed the Ninth Circuit's decision and remanded the case. Justice Sotomayor was the only justice to write separately. She concurred in the judgment, explaining that the Court's conclusion should be limited to cases that fall under the Private Securities Litigation Reform Act (PSLRA). The majority's decision drew upon the PSLRA for support but adopted a rule that applies more broadly. The Court's clarification of American Pipe is a welcome development for defendants. Among other things, it should help to make class action litigation more predictable and to ensure that class actions proceed within a reasonable time after the underlying events. [GN] CHRISTIAN'S BAKERY: Doesn't Pay OT to Bakers, Meza-Vazquez Says --------------------------------------------------------------- RUBEN DAVID MEZA-VAZQUEZ, individually and on behalf of all others similarly situated, Plaintiff v. CHRISTIAN'S BAKERY, INC., and JOSE LUIS CARDENAS, Defendants, Case No. 1:18-cv-02300-ELR (N.D. Ga., May 1, 2018) seeks to recover unpaid overtime premium pay pursuant to the Fair Labor Standards Act. Mr. Meza-Vazquez was employed by the Defendants as baker from September 9, 2016 to December 26, 2017. Christian's Bakery, Inc., is a corporation organized under the laws of the State of Georgia, with principal place of business in Mableton, Georgia. [BN] The Plaintiff is represented by: Brandon A. Thomas, Esq. THE LAW OFFICES OF BRANDON A. THOMAS, PC 1800 Peachtree Street, N.W., Suite 300 Atlanta, GA 30309 Telephone: (404) 343-2441 Facsimile: (404) 352-5636 E-mail: brandon@brandonthomaslaw.com CLEAR AIR TECHNOLOGIES: Underpays Cleaners, Lysakowski Claims ------------------------------------------------------------- MARCIN LYSAKOWSKI, individually and on behalf of all others similarly situated, Plaintiff v. CLEAR AIR TECHNOLOGIES, LLC, and TODD CARMER, Defendants, Case No. 2:18-cv-09510-ES-MAH (D.N.J., May 21, 2018) is brought against the Defendants for failure to pay the required overtime premium rate for all hours worked over 40 per week, in violation of the Fair Labor Standards Act, New Jersey State Wage and Hour Law. Lysakowski was employed by the Defendants a cleaner from the year 2012 to December 2016. Clear Air Technologies, LLC is a New Jersey company owning and operating an air duct and vent services in the State of New Jersey. [BN] The Plaintiff is represented by: Jodi J. Jaffe, Esq. Andrew I. Glenn, Esq. JAFFE GLENN LAW GROUP, P.A. 301 N. Harrison Street, Suite 9F, #306 Princeton, NJ 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: JJaffe@JaffeGlenn.com AGlenn@JaffeGlenn.com COASTWAY BANCORP: Rigrodsky & Long Files Securities Class Action ---------------------------------------------------------------- Rigrodsky & Long, P.A., on June 13 disclosed that it has filed a class action complaint in the United States District Court for the District of Rhode Island on behalf of holders of Coastway Bancorp, Inc. ("Coastway") (NasdaqCM: CWAY) common stock in connection with the proposed acquisition of Coastway by HarborOne Bancorp, Inc. and its affiliate ("HarborOne") announced on March 14, 2018 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Coastway and its Board of Directors (the "Board"), is captioned Parshall v. Coastway Bancorp, Inc., Case No. 1:18-cv-00279 (D.R.I.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220, Wilmington, DE 19801, by telephone at (888) 969-4242, by e-mail at info@rl-legal.com, or at http://rigrodskylong.com/contact-us/. On March 14, 2018, Coastway entered into an agreement and plan of merger (the "Merger Agreement") with HarborOne. Pursuant to the terms of the Merger Agreement, shareholders of Coastway will receive $28.25 in cash for each share of Coastway stock they own (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a proxy statement (the "Proxy Statement") filed with the United States Securities and Exchange Commission. The Complaint alleges that the Proxy Statement omits material information with respect to, among other things, Coastway's financial projections, the analyses performed by Coastway's financial advisor, and potential conflicts of interest. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Coastway common stock. If you wish to serve as lead plaintiff, you must move the Court no later than August 13, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Wilmington, Delaware, Garden City, New York, and San Francisco, California, Rigrodsky & Long, P.A. --- http://www.rigrodskylong.com-- has recovered hundreds of millions of dollars on behalf of investors and achieved substantial corporate governance reforms in numerous cases nationwide, including federal securities fraud actions, shareholder class actions, and shareholder derivative actions. [GN] COINBASE INC: Arbitration of Cryptocurrencies Suit Denied --------------------------------------------------------- The United States Court of Appeals, Eleventh Circuit, affirmed the judgment denying Defendant's Motion to Compel Arbitration in the case captioned BRANDON LEIDEL, individually and on behalf of all others similarly situated, Plaintiff-Appellee, JAMES D. SALLAH, as Receiver/Corporate Monitor of Project Investors, Inc., d.b.a. Cryptsy, Plaintiff, v. COINBASE, INC., a Delaware Corporation, d.b.a. Global Digest Asset Exchange (GDAX), Defendant-Appellant, No. 17-12728 (11th Cir.). The Defendant is a financial services company registered as a money services business with the U.S. Department of the Treasury, Financial Crimes Enforcement Network. As part of its business, the Defendant operates a website where its customers can purchase, exchange, and sell digital cryptocurrencies, such as Bitcoin. Leidel brought claims against the Defendant for, inter alia, (1) aiding and abetting Cryptsy's breaches of its fiduciary duties to its customers; (2) aiding and abetting Vernon's theft of Cryptsy's customer's assets; (3) negligence in performing its duties as a depository of Cryptsy's and Vernon's accounts. The Defendant argues that, under the doctrine of equitable estoppel, Leidel is bound by the arbitration clause in the User Agreements entered into by Cryptsy and Vernon. Under Florida law, in order to compel arbitration under a theory of equitable estoppel, the party seeking to compel arbitration must show both that the plaintiff is relying on a contract to assert its claims and that the scope of the arbitration clause in that contract covers the dispute. Here, Leidel's claims are based on the Defendant's alleged failure to (1) adequately monitor or investigate Cryptsy's and Vernon's use of Defendant's website; (2) detect Vernon's theft of Cryptsy's customers' Bitcoin; and (3) report suspicious activity by Vernon or Cryptsy to the appropriate authorities. According to the complaint, these duties were imposed on the Defendant by the Bank Secrecy Act and its implementing regulations not for the protection of the Defendant's customers, but to detect money laundering and other suspicious or illegal activities by the Defendant's customers. Because Leidel's claims rely on obligations allegedly imposed by law and in recognition of public policy to persons who are strangers to the User Agreements, his claims neither rely on nor bear a significant relationship to those agreements. Moreover, because the arbitration clause in the Defendant's User Agreements is narrow in scope under Florida law, the Defendant was required to show that Leidel's claims have a direct relationship to the User Agreements' terms and provisions. Because Leidel's claims do not have a significant relationship to the agreements, Defendant cannot show that those claims meet the more stringent direct relationship standard applicable to arbitration provisions that are narrow in scope. Under California law, a nonsignatory plaintiff may be estopped from refusing to arbitrate when he or she asserts claims that are dependent upon, or inextricably intertwined with' the underlying contractual obligations of the agreement containing the arbitration clause. In UFCW & Employers Benefit Trust v. Sutter Health, 194 Cal.Rptr.3d 190 (Ct. App. 2015), California's First District Court of Appeal concluded that the plaintiff could not be compelled to arbitrate under a theory of equitable estoppel because the plaintiff was not seeking to enforce the contract containing the arbitration clause. Rather, the plaintiff was seeking to enjoin Sutter Health from implementing certain allegedly anticompetitive contract terms. In other words, the court observed, the plaintiff sought only to enforce California's law regulating competition. Because the plaintiff did not seek to enforce the terms or obligations of the relevant contract, the court concluded that the doctrine of equitable estoppel had no application to the case. Here, Leidel does not seek to enforce the terms or obligations of the User Agreements entered into by Vernon and Cryptsy. Instead, Leidel seeks to enforce obligations allegedly imposed on the Defendant by federal statutes, federal regulations, and state common law. Because Leidel does not rely on the User Agreements to establish his cause of action, he is not estopped from avoiding the arbitration clauses in those agreements under California law. Accordingly, the Eleventh Circuit affirms the decision of the district court. A full-text copy of the Eleventh Circuit's April 23, 2018 Opinion is available at https://tinyurl.com/ybkf7du3 from Leagle.com. Jason Stuart Miller, for Plaintiff-Appellee. Marc A. Wites -- Mwites@wklawyers.com -- for Plaintiff-Appellee. Laura A. Stoll -- lstoll@goodwinlaw.com -- for Defendant- Appellant. Andrew Kemp-Gerstel -- akg@lgplaw.com -- for Defendant-Appellant. Alan Michael Pierce -- amp@lgplaw.com -- for Defendant-Appellant. James Randolph Liebler, II -- jrlii@lgplaw.com, for Defendant- Appellant. Galen A. Phillips -- gphillips@goodwinlaw.com -- for Defendant- Appellant. Steven Andrew Ellis -- sellis@goodwinlaw.com -- for Defendant- Appellant. David Chad Silver -- david.silver@hklaw.com -- for Plaintiff- Appellee. Scott Lance Silver -- ssilver@silverlaw.com -- for Plaintiff- Appellee. COINBASE INC: Leidel Class Suit to be Ruled in Open Court --------------------------------------------------------- Malek Mezni, writing for blokt, reports that the class complaint filed by Brandon Leidel on behalf of Cryptsy's former customers against Coinbase is set to be ruled in open court after the latter lost its last appeal to compel arbitration. Coinbase is being tried for failing to monitor Cryptsy's CEO, Paul Vernon's account adequately. The plaintiff claimed that the exchange should have detected the theft and halt it as required under the bank secrecy act. Background of the Cryptsy embezzlement It all traces back to early 2016 when the Cryptsy exchange claimed insolvency after months of growing service related issues. The official website where the announcement was first made public has been taken down ever since. Cryptsy blamed it on a hack that had occurred less than two years earlier in July 2014. The company alleged that the incident had cost them approximately 13,000 BTC and 300,000 LTC. It suspected the developer of Lucky7coin as the perpetrator. Reports suggested that the hack was not reported to avoid spreading panic among traders while gradually refunding customers. It was not until the U.S. District Court for the Southern District of Florida found out that Mr. Vernon was responsible for the hack. In January 2016, an investigation, following a nationwide class action lawsuit filed against Cryptsy, showed that as much as $8.2 billion worth of customers' digital assets were liquidated through other exchanges like Coinbase using Vernon's personal account. The latter triggered a second class-action lawsuit in December 2016 against Coinbase for not fulfilling its regulatory obligations, as a depository of Cryptsy's and Mr. Vernon's accounts, to halt phony schemes and money laundering related activities. Rumors surfaced that Vernon has fled the country to China. Leidel Vs Coinbase The plaintiff, Brandon Leidel, who is a former Cryptsy customer, filed the lawsuit on behalf of all affected customers whose money was stolen by Mr. Vernon. The procedural history from the appeal court document reads: "All the claims were based to some extent on Defendant's [Coinbase, ed.] alleged failure to (1) adequately monitor and investigate Cryptsy's and Mr. Vernon's use of Defendant's website; (2) detect Vernon's theft of Cryptsy's customers' Bitcoin; (3) report suspicious activity by Vernon or Cryptsy to the appropriate authorities". Coinbase attorneys sought a motion to compel arbitration, under the doctrine of "equitable estoppel," that was denied by the court. On April 23, the court ordered a denial of the motion to compel arbitration under the theory of equitable estoppel ruling it to not be applicable in this case, under both California and Florida Laws where both plaintiff and defendant reside. The court concluded that, since the plaints were based on duties and obligation imposed by federal regulations and state common laws, rather than enforcing terms of users agreement signed by Vernon, the motion to compel must be rejected. More recently, the decision to reopen the case was granted by the U.S. District Court for the Southern District of Florida on June 4 to the plaintiff. The case will have to proceed to a jury trial, as opposed to the private arbitration sought by Coinbase attorneys in their last appeal. Coinbase lawyers did not seek to oppose the relief and are believed to have held a Case Management Conference through a phone call on June 1 with the plaintiff. A second Case Conference Report and proposed scheduling order are yet to be deposited by Mr. Leidel. [GN] CONTINENTAL CASUALTY: Confidentiality Order in Deal Issued ---------------------------------------------------------- In the case, GWEN B. DALUGE, MURRAY YOUNG, AND HELENE K. BIRNBAUM, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. CONTINENTAL CASUALTY COMPANY, Defendant, Case No. 3:15-cv-297-WMC (W.D. Wis.), Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin has entered an order of confidentiality in connection with the preliminary approval of a class action settlement. The disclosure and discovery activity in the action involved the production of confidential, proprietary, or private information for which special protection from public disclosure is warranted. Accordingly, any Class Member who objects to the settlement of the above referenced matter or who is considering whether to opt out of Class I, and who seeks access to materials produced pursuant to discovery requests in the matter will comply with the Agreement and Order of Confidentiality, and deliver a fully executed copy of Exhibit A to Class Counsel: Sean K. Collins Law Offices of Sean K. Collins 184 High Street, Suite 503 Boston, MA 02110 telephone: (855) 693-9256 email: sean@neinsurancelaw.com Within 90 days after the final disposition of this action, each Objector of Potential Opt Out must return all Discovery Materials to the Class Counsel or destroy such materials. As used in this section, "all Discovery Materials" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Discovery Materials. Whether the Discovery Materials are returned or destroyed, the Objector or Potential Opt Out must submit a written certification to Class Counsel by the 90 day deadline that (1) identifies all the Discovery Materials that were returned or destroyed, and (2) affirms that neither the Objector or Potential Opt Out, nor any entity to whom the Objector or Potential Opt Out provided Discovery Materials pursuant to Section 3.2 (with the exception of the Court and its personnel), has retained any copies, abstracts, compilations, summaries, or any other format reproducing or capturing any of the Discovery Materials. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/jo9FIn from Leagle.com. Gwen B. Daluge, Individually and on behalf of all others similarly situated, Plaintiff, represented by Mark D. DeBofsky -- mdebofsky@debofsky.com -- DeBofsky & Associates, P.C., Patrick Vincent Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP, Ex Kano Sams, II -- esams@glancylaw.com -- Glancy Prongay & Murray LLP, Janet Eileen Pecquet, Beckman Weil Shepardson LLC, Jeffrey Goldenberg, Goldenberg Schneider LPA, Melissa C. Wright, Glancy Prongay & Murray LLP & Sean K. Collins -- sean@neinsurancelaw.com -- Sean K. Collins, Attorney at Law. Murray Young & Helene K. Birnbaum, Plaintiffs, represented by Ex Kano Sams, II, Glancy Prongay & Murray LLP, Jeffrey Goldenberg, Goldenberg Schneider LPA, Melissa C. Wright, Glancy Prongay & Murray LLP & Sean K. Collins, Sean K. Collins, Attorney at Law. Continental Casualty Company, Defendant, represented by Ameri Klafeta -- aklafeta@eimerstahl.com -- Eimer Stahl LLP, Brent Austin -- baustin@eimerstahl.com -- Eimer Stahl LLP, James W. Joseph -- jjoseph@eimerstahl.com -- Eimer Stahl Klevorn & Solberg LLP & John Street -- jstreet@eimerstahl.com -- Eimer Stahl LLP. CORELOGIC SAFERENT: Mitchell Appeals Ruling in "Witt" to 4th Cir. ----------------------------------------------------------------- Party-in-Interest Darryl Mitchell filed an appeal from a court ruling in the lawsuit titled Carolyn Witt, Tyrone Henderson, James O. Hines, Jr., John Moore, on behalf of themselves and all others similarly situated v. CoreLogic SafeRent, LLC, Case No. 3:15-cv-00386-DJN, in the U.S. District Court for the Eastern District of Virginia at Richmond. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendant for alleged violation of the Fair Credit Reporting Act. The appellate case is captioned as Darryl Mitchell v. CoreLogic SafeRent, LLC, Case No. 18-1468, in the United States Court of Appeals for the Fourth Circuit. Party-in-Interest-Appellant DARRYL MITCHELL appears pro se.[BN] Plaintiffs CAROLYN WITT, on behalf of themselves and all others similarly situated, JOHN MOORE, on behalf of themselves and all others similarly situated, JAMES A. SCALES, NAKISHA DAVIS, MORRELL DAVIDSON, KEVIN ODERA and LARRY GOODE are represented by: Leonard Anthony Bennett, Esq. Elizabeth W. Hanes, Esq. Craig Carley Marchiando, Esq. Susan Mary Rotkis, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 763 J. Clyde Morris Boulevard Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com elizabeth@clalegal.com craig@clalegal.com srotkis@clalegal.com - and - Matthew James Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES 1800 Diagonal Road Alexandria, VA 22314 Telephone: (703) 273-7770 E-mail: matt@clalegal.com - and - Dale Wood Pittman, Esq. LAW OFFICE OF DALE W. PITTMAN, P.C. 112-A West Tabb Street Petersburg, VA 23803-3212 Telephone: (804) 861-6000 Facsimile: (804) 861-3368 E-mail: dale@pittmanlawoffice.com Defendants CORELOGIC SAFERENT, LLC, and CORELOGIC NATIONAL BACKGROUND DATA, LLC, are represented by: David Neal Anthony, Esq. Harrison Scott Kelly, Esq. Timothy James St. George, Esq. Alan Durrum Wingfield, Esq. TROUTMAN SANDERS, LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-5410 E-mail: david.anthony@troutmansanders.com scott.kelly@troutmansanders.com timothy.stgeorge@troutmansanders.com alan.wingfield@troutmansanders.com CENTRAL IOWA: Settles Class Action Over Bed Bug Infestation ----------------------------------------------------------- Stephen Gruber-Miller, writing for Des Moines Register, reports that a Des Moines homeless shelter has reached a settlement in a class action lawsuit that alleged a bed bug infestation made the shelter uninhabitable in late 2014 and 2015. Those included in the class action suit could receive as much as $400 if they encountered bed bugs while staying at Central Iowa Shelter & Services at 1420 Mulberry St. or in its transitional housing or efficiency apartments between November 2014 and Dec. 1, 2015. The exact amount of money awarded to claimants will depend on the length of their stay, according to the settlement agreement. The shelter has agreed to pay valid and timely claims made by members of the suit, but denies all wrongdoing and liability. Mark Tripp, an attorney representing the shelter, said CISS has always been proactive in dealing with pest problems. "They have a state-of-the-art program in place that's implemented through a professional pest control group," Mr. Tripp said. "There isn't anything that is required in that settlement for them to do that they aren't already doing." Steve Wandro, an attorney for the plaintiffs, said the shelter had problems in the past but has brought them under control. "They've implemented effective procedures to manage the bed bug problem," Mr. Wandro said. "They eradicated the problem and now they've taken a more proactive approach to pest control." Lawyers for the plaintiffs announced on June 13 they had reached an agreement, and Polk County District Court Judge Donna Paulsen granted preliminary approval of the deal, court records show. A judge will hold a hearing at the Polk County Courthouse at 10 a.m. on Aug. 17 to determine whether the settlement is fair and reasonable. Those included in the class action will have an opportunity to speak and raise objections to the terms of the agreement at that hearing unless they take action to exclude themselves from the class of people covered by the agreement. Anyone with questions about the settlement agreement, whether they are eligible for inclusion in the class, how to exclude themselves from the suit or how to object to the terms of the settlement can contact Lipman Law Firm, P.C. in West Des Moines at 515-276-3411 or email jeff@lipmanlawfirm.com. The deadline to submit a claim, object to the settlement terms or to be excluded from the suit is July 29. Mr. Wandro said lawyers for the plaintiffs will check people's claims against the shelter's records of who stayed there to ensure that only those with valid claims are compensated. He cautioned against making assumptions about the source of the bed bugs or blaming the problem on the shelter's residents, calling bed bugs "an equal opportunity pest." [GN] DELIV INC: Doesn't Pay Wages to Courier, "Lawson" Suit Says ----------------------------------------------------------- RAEF LAWSON, individually and on behalf of all others similarly situated, Plaintiff v. DELIV, INC., Defendant, Case No. CGC18566577 (Cal. Super., San Francisco Cty., May 15, 2018) alleges that the Defendant failed to pay minimum wage for all hours worked as required by California Law. Lawson was employed by the Defendant a courier. Deliv, Inc. is a Delaware corporation, headquartered in Menlo, Park, California, doing business in U.S., including California. [BN] The Plaintiff is represented by: Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Email: sliss@llrlaw.com DELTA AIRLINES: Removes "Pimental" Suit to E.D. New York -------------------------------------------------------- The Defendant in the case captioned as, Nicholas Pimental, also known as: Aasir Azzarmi, individually and on behalf of all other persons similarly situated, Plaintiff v. Delta Airlines, Inc., filed a notice to remove the lawsuit from the Supreme Court of the State of New York, County of Queens (Case No. 704015/2018) to the U.S. District Court for the Eastern District of New York on May 21, 2018, and assigned Case No. 1:18-cv-02999-JBW-RML (E.D.N.Y., May 21, 2018). The case was assigned to Judge Jack B. Weinstein and referred to Magistrate Judge Robert M. Levy. Delta Air Lines, Inc. provides scheduled air transportation for passengers and cargo in the United States and internationally. As of February 9, 2018, the company operated a fleet of approximately 800 aircraft. Delta Air Lines, Inc. was founded in 1924 and is headquartered in Atlanta, Georgia. [BN] The Plaintiff is represented by: Matthew Ian Marks, Esq. RICOTTA & MARKS, P.C. 31-10 37th Avenue, Suite 401 Long Island City, NY 11101 Telephone: (347) 464-8694 Facsimile: (800) 483-4508 E-mail: mmarks@wrmattorney.com The Defendant is represented by: Ira Gregg Rosenstein, Esq. MORGAN LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178 Telephone: (212) 309-6000 Facsimile: (212) 309-6001 E-mail: irosenstein@morganlewis.com - and - Brendan Thomas Killeen, Esq. MORGAN LEWIS AND BOCKIUS 101 Park Avenue New York, NY 10178 Telephone: (212) 309-6712 Facsimile: (212) 309-6712 E-mail: bkilleen@morganlewis.com DENTAL EQUITIES: Motion to Stay Junk-Fax Class Action Granted ------------------------------------------------------------- Artin Betpera, Esq. -- artin.betpera@wbd-us.com -- Erin Kubota, Esq. -- erin.kubota@wbd-us.com -- Eric Troutman, Esq. -- eric.troutman@wbd-us.com -- Joshua Anderson, Esq., Martin L. Stern, Esq., and Nicole Su, Esq., of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, wrote that the primary jurisdiction doctrine Eric wrote about a mere few weeks ago was on full display in a recent ruling granting a motion to stay in a junk-fax TCPA class action. In Scoma Chiropractic, P.A., et al v. Dental Equities, LLC, et al., 2018 U.S. Dist. LEXIS 92736, the District Court for the Middle District of Florida granted a motion to stay brought by one of the defendants, pending a ruling by the FCC on the Petition for Expedited Declaratory Ruling of AmeriFactors Financial Group, LLC, CG Docket Nos. 02-278, 05-338, filed July 13, 2017. That petition seeks a ruling that e-faxes and other faxes not sent or received with an actual fax machine are not within the definition of a "telephone facsimile machine" under the TCPA. The defendant in Scoma had moved for a stay on the basis that a ruling on the AmeriFactors petition would address one of the key issues in the case: whether the online fax services used to send some of the faxes at issue was a "telephone facsimile machine" (TFM) under the TCPA, and that a stay was therefore warranted under the primary jurisdiction doctrine. The court agreed, holding that a stay was warranted because deferring to the FCC would "advance the basic purpose of the [primary jurisdiction] doctrine because the specialized knowledge of the FCC is needed to answer the questions before the Court[.]" 2018 U.S. Dist. LEXIS 92736 at *8. Whether "TFMs encompass online fax services is a matter of defining a technical term and Congress has explicitly tasked the FCC with prescribing regulations to implement the requirements of the TCPA, including the subsection prohibiting unsolicited facsimile advertisements." Id. at *9. The Court noted that although there had been prior occasions when the FCC addressed whether certain computerized faxing technology falls within the TCPA's prohibitions, "the last occasion was in 2015, and none appear to be directly applicable to the issues raised here with regard to sending and receiving faxes using cloud-based servers, raising a potential first-impression interpretation for the FCC." 2018 U.S. Dist. LEXIS 92736 at *9. Quite simply, deferring to the FCC was "necessary for a uniform interpretation of the statutory questions at issue." 2018 U.S. Dist. LEXIS 92736 at *8-9. The Court emphasized the fact that if the case proceeds, "there is a risk that the Court could reach a determination that is inconsistent with the FCC's ultimate decisions on the AmeriFactors Petition, and this Court is ultimately bound to adhere to the FCC's interpretation of the TCPA." 2018 U.S. Dist. LEXIS 92736 at *9, internal citation omitted. That sentiment of uniformity in the law assures that the FCC's policy choices are deferred to by courts and is crucial in the administration of the TCPA given the vagueness of many of its provisions. Although the issues here involve a different petition, they have strong parallels to the FCC petition relation to ACA issues. At their heart, both petitions are about whether a piece of technology falls within one of the definitions set forth in the TCPA. The reasoning as to applying the primary jurisdiction doctrine is equally as applicable, and illustrates the importance of these stays. [GN] DEUTSCHE BANK: Court Issues Mix-Bag Opinion in ERISA Class Action ----------------------------------------------------------------- John Manganaro, writing for Plan Sponsor, reports that the U.S. District Court for the Southern District of New York has issued a mix-bag opinion in a lawsuit filed by employees of Deutsche Bank, alleging self-dealing within the company's qualified retirement plan. The partial decision for summary judgment comes after the district court first ruled the lawsuit claims, filed in December 2015, would not be time-barred by ERISA's various statutes of limitation. Subsequent to that decision, the court approved class action status for the complaint in September 2017, leading to the present matter. In sum, the underlying allegations are that Deutsche Bank and other defendants violated their fiduciary duties by offering in the company 401(k) plan proprietary, high-cost investments that profited the bank. According to the plaintiffs' complaint, the Deutsche Bank Matched Savings Plan, as of 2009, had roughly $1.9 billion in assets and offered participants 22 "designated investment alternatives," 10 of which were "proprietary Deutsche Bank mutual funds." The core of the complaint's allegations concerns the inclusion of Deutsche Bank proprietary mutual funds among the plan's offerings. According to the complaint, "Deutsche Bank earned millions of dollars in investment management fees by retaining [these proprietary mutual funds] in the plan." Technically speaking, this new decision comes in response to defendants' motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants seek summary judgment with respect to Counts II and III in their entirety, the decision explains, and with respect to Counts I and IV only to the extent that they are predicated on the investment options included in the plan's core lineup. Defendants do not seek summary judgment with respect to Counts I and IV to the extent they are predicated on failures to mitigate ADP recordkeeping expenses. As the decision lays out, the motion is granted in part and denied in part. Based on circuit court guidance, denied is the motion for summary judgement against plaintiffs' suit based on the generic allegation that there is a dispute of material fact as to whether defendants breached their various fiduciary duties. In particular, defendants seek summary judgment on the ground that plaintiffs cannot establish "loss causation," but the argument is roundly rejected. Thus, defendants' motion for summary judgment on the breach of fiduciary duty claims is denied. The court's reasoning is explained this way: "Defendants ask essentially for a determination that [plaintiffs' experts'] statistical analyses are fundamentally flawed to the point of being invalid as a matter of law. No such determination is appropriate at the summary judgment stage. Even if it were appropriate to weigh the competing expert opinions now on this summary judgment motion -- rather than at the bench trial scheduled to begin shortly -- the cursory seven-paragraph rebuttal of [plaintiffs' experts'] work is not sufficiently persuasive to justify that rejection. Accordingly, there is a dispute of material fact as to whether plaintiffs sustained recoverable losses caused by defendants. The motion for summary judgment [on these claims is thus] denied." The decision goes on to grapple further with binding guidance from the U.S. Circuit Court of Appeals for the Second Circuit, concluding that defendants' argument is, at its core, "a request to ignore the 'but for' Second Circuit test for determining compensable, and therefore actionable, losses in favor of the 'objective prudence' test adopted in another circuit." This effort is made because, as the court explains, the objective prudence test "requires plaintiffs to demonstrate that, even if a breach occurred, that breach resulted in investments that were objectively imprudent." "This argument fails for two reasons," the district court explains. "First, the Second Circuit's binding precedent cannot be ignored. . . . Second, infusing the loss analysis with questions of 'objective prudence' is analytically messy." Ultimately, the district court reaches a skeptical conclusion: "Defendants are not arguing that they are entitled to summary judgment on the question of whether their actions breached the duty of care. Instead, they attempt to attach the objectively prudent test to the investments that may have resulted from imprudent conduct. In this circuit, there is no legal basis to do so." The defendants seem to have had at least a little more success on their other arguments for summary judgment. Looking at plaintiffs' claim that, by offering the plan proprietary mutual funds, defendants engaged in prohibited transactions with a party in interest in violation of ERISA's prohibited transaction rules -- these have fallen flat. As the district court decision states, summary judgment is "granted with respect to the prohibited transaction claims, because the transactions are exempt under Department of Labor Prohibited Transaction Exemption 77-3." Consequently, the opinion does not address defendants' other arguments in support of summary judgment on these claims. However, the decision grapples in detail with the requirements that must be satisfied in order for the 77-3 exemption to apply. [GN] DON VITO OZUNA: Fails to Pay Proper Wages, "Camilo" Alleges ----------------------------------------------------------- RODRIGO CAMILO; ALVARO CAMILO; RICARDO G. SANCHEZ; JOSE MANUEL LOPEZ, individually and on behalf of all others similarly situated, Plaintiffs v. SERVERO C. OZUNA and DON VITO OZUNA FOOD CORPORATION, Defendants, Case No. 5:18-cv-02842-HRL (N.D Cal., May 14, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendants as tortilla- manufacturing laborers. Don Vito Ozuna Food Corporation is a California corporation with its headquarters in Morgan Hill, Santa Clara County. [BN] The Plaintiff is represented by: Ames Dal Bon, Esq. LAW OFFICE OF JAMES DAL BON 606 N. 1ST St. San Jose, CA 95112 Telephone: (408) 466-5845 Facsimile: (408) 286-7111 - and - Victoria L.H. Booke, Esq. BOOKE & AJLOUNY 606 North First Street San Jose, CA 95112 Telephone: (408) 286-7000 Facsimile: (408) 286-7111 Email: vbooke@bookelaw.com DOVER FINANCIAL: Law Firm Mulls Class Action Following Collapse --------------------------------------------------------------- John Collett and Mathew Dunckley, writing for Sydney Morning Herald, report that the collapse of Dover Financial Services has sparked renewed calls for a last resort compensation scheme to cover customers when their adviser's firm ceases to exist. Dover owner Terry McMaster on June 8 told the 400 or so advisers that operated under its banner that their coverage on Dover's licence would be removed immediately after the corporate regulator signalled it would cancel the licence. That meant advisers would have to cease giving new advice immediately and stop servicing the estimated 40,000 to 50,000 clients completely by the first week of July. If Dover goes into administration, clients that want to pursue their adviser for poor advice would become unsecured creditors without access to the Financial Ombudsman Service or other dispute mechanisms. University of Melbourne professor Ian Ramsay headed a review for the federal government last year which recommended the establishment of a compensation scheme of last resort for victims of poor financial advice pointing to millions of dollars in unpaid compensation where a company would not pay up, sometimes because it no longer exists. On June 11 Professor Ramsay said it was clear that the "area of most immediate need in terms of last resort compensation is financial advice". "When you go by the value of unpaid determinations, I think it is in excess of 90 per cent by dollar value of unpaid determinations is the financial advice area," he said. The federal government has said it will await the outcome of the Hayne Royal Commission before deciding whether to support the review's recommendation. CHOICE campaigns director Erin Turner said the plight of Dover showed why a scheme was needed. "With Dover Financial closing its doors, anyone who has a current or future complaint against the company may struggle to get fair compensation. We've seen this before with financial planning," she said. "This case highlights the need for a last-resort compensation scheme in the financial services sector. It's crucial that the financial system has appropriate protections so that anyone who has received dodgy advice gets a fair fix." Maurice Blackburn superannuation and insurance principal Josh Mennen said the absence of a last resort scheme could "leave consumers out to dry" in situations like the one enveloping Dover. "This is a textbook example of why a scheme of last resort is desperately needed to give confidence to consumers that they are not going to be left in financial limbo when their adviser goes bust," he said. Mr Mennen said it was very disappointing that the Ramsay review's recommendation had not been picked up by now. Financial Services Minister Kelly O'Dwyer's spokesman did not respond by deadline. Shadow Treasurer Chris Bowen's office did not return calls. The pending cancellation of Dover's licence follows intense scrutiny before the banking royal commission in May. The Australian Securities and Investments Commission remained tight- lipped on June 11 about any possible action against Dover or its planners, confirming only that its inquiries into the firm were ongoing. It is believed Mr McMaster had sought until the end of the year to wind down his business but that ASIC had told him that his time was up. Mr McMaster declined to comment. Paul Tynan, the chief executive of Connect Financial Services Brokers, which buys and sell financial services businesses, said the time-frame for the advisers to find another licence to work under is very short. "It's going to be a mad scramble by the advisers to find another licence-holder to work under," he said. "Four hundred advisers is a hell of lot. Those taking on the advisers would have to check them out and there a lot more things that need to be done that cannot be done in a matter of weeks." Hamilton Blackstone Lawyers posted on social media that it was discussions with affected planners to see if there is a potential for a class action on behalf of the advisers against Dover. As well as the roughly 400 financial planners under its licence, Mr McMaster also owns McMasters Accountants and Advisers, which acts for more than 1000 doctors, dentists and other medical professionals. It is the administrator for more than 1200 self-managed super funds, making it one of the largest SMSF accounting firms in Australia. Its website states that McMasters Accounting and Advisers, through McMasters' (Vic) Pty, is a corporate authorised representative of Dover Financial Advisers. [GN] DS PROSPECTING: Made Solicited Calls, "Dawson" Suit Alleges ----------------------------------------------------------- MELINDA DAWSON, individually and on behalf of all others similarly situated, Plaintiff v. DS PROSPECTING LLC, Defendant, Case No. 1:18-cv-01246 (N.D. Ohio., June 1, 2018) seeks to stop the Defendant's practice of sending unsolicited text messages using an automatic telephone dialing system to cellular telephones without prior express consent. DS Prospecting LLC is a limited liability company organized and existing under the laws of the State of Florida. [BN] The Plaintiff is represented by: Adam T. Savett, Esq. SAVETT LAW OFFICES LLC 2764 Carole Lane Allentown PA 18104 Telephone: (610) 621-4550 Facsimile: (610) 978-2970 E-mail: adam@savettlaw.com EAST CHICAGO, IN: Bradshaw May Intervene as "Gutierrez" Class Rep ----------------------------------------------------------------- In the case, MARY GUTIERREZ, on her own behalf and on behalf of a class of those similarly situated, et al., Plaintiff, v. CITY OF EAST CHICAGO and the HOUSING AUTHORITY OF THE CITY OF EAST CHICAGO, Defendants, Cause No. 2:16-CV-111-JVB-PRC (N.D. Ind.), Judge Paul R. Cherry of the U.S. District Court for the Northern District of Indiana, Hammond Division, granted nonparty Edith Bradshaw's Motion to Intervene as Class Representative in Order to Seek Contempt Remedies Against the East Chicago Housing Authority filed on Feb. 21, 2018. On March 31, 2016, Gutierrez filed a Class Action Complaint for Declaratory and Injunctive Relief and Damages, challenging the ECHA and the Police Department of the City of East Chicago's alleged policy and practice of conducting warrantless and non- consensual criminal and administrative searches of tenant apartments. On April 1, 2016, Gutierrez filed a Motion for Class Certification and a Motion for Preliminary Injunction. On Oct. 5, 2016, the Court entered a preliminary injunction order prohibiting ECHA from conducting unconstitutional criminal and administrative searches. In the instant motion, Bradshaw alleges that, on Nov. 7, 2017, ECHA conducted a warrantless "housekeeping" inspection of her apartment, despite the fact that Ms. Bradshaw was not present, that Ms. Bradshaw had explicitly withheld her consent prior to the entry, and there there were no exigent circumstances, all in violation of the Court's Oct. 5, 2016 preliminary injunction order. Ms. Bradshaw seeks to intervene for the limited purpose of seeking contempt sanctions to compensate her for her damages resulting from ECHA's violation of the Court's order. Judge Cherry finds that as a threshold matter, Ms. Bradshaw has standing to intervene because she allegedly suffered psychological and emotional harm has a direct result of ECHA's Nov. 7, 2017 allegedly non-consensual and warrantless search of her apartment without exigent circumstances in violation of the Court's preliminary injunction order. Moreover, the motion was timely filed; Ms. Bradshaw has a direct and substantial interest in the subject matter of the litigation, namely securing the benefits of the Court's preliminary injunction order to be free from unconstitutional intrusions into her home and to be compensated through contempt sanctions for the injury she suffered; Ms. Bradshaw's interest is not represented by any existing party; and Ms. Bradshaw's interest in obtaining a remedy for contempt would be impaired if this action were resolved without her. Accordingly, the Judge granted the Motion to Intervene, and ordered Ms. Bradshaw to file her Verified Petition for Contempt and exhibits no later than April 27, 2018. A full-text copy of the Court's April 20, 2018 Opinion and Order is available at https://is.gd/ZSP9VS from Leagle.com. Mary Gutierrez, on her own behalf and on behalf of a class of those similarly situated, Plaintiff, represented by Gavin M. Rose, ACLU of Indiana, Kenneth J. Falk, ACLU of Indiana & Jan P. Mensz, ACLU of Indiana. Shawn Polk, on his own behalf and on behalf of a class of those similarly situated, Intervenor Plaintiff, represented by Gavin M. Rose, ACLU of Indiana & Jan P. Mensz, ACLU of Indiana. City of East Chicago, Defendant, represented by Michael E. Tolbert -- mtolbert@tolbertlegal.com -- Tolbert & Tolbert LLC & Shelice R. Tolbert -- stolbert@tolbertlegal.com -- Tolbert & Tolbert LLC. Housing Authority of the City of East Chicago, Defendant, represented by Jewell Harris, Jr. -- jharris@harrislawfirmpc.net -- Harris Law Firm PC, Joseph C. Svetanoff, Harris Law Firm PC, Nicholas A. Snow, Harris Law Firm PC & Tramel R. Raggs -- traggs@harrislawfirmpc.net -- Harris Law Firm PC. Edith K Bradshaw, Movant, represented by Jan P. Mensz, ACLU of Indiana. EDWARD D. JONES: Faces "Bland" Suit over Race Discrimination ------------------------------------------------------------ WAYNE BLAND, individually and on behalf of all others similarly situated, Plaintiff v. EDWARD D. JONES & CO., L.P., and THE JONES FINANCIAL COMPANIES, L.L.L.P., Defendants, Case No. 1:18-cv-03673 (N.D. Ill., May 24, 2018) is an action against the Defendants' company-wide pattern or practice of race discrimination and discriminatory policies and practices. According to the complaint, the Defendants maintain stereotypical views about the skills, abilities and potential of African Americans that infect and form the basis of the centralized policies and practices challenged by the lawsuit. Because of these stereotypical views, African Americans are significantly under-represented among the Defendants financial advisors, approximately 94% of whom are white. Although the financial services industry has made some strides in improving the representation of minorities in the workforce, the Defendants lags well behind the national average. The Plaintiff was employed by the Defendants in 2014 after working in the financial services industry for over a decade. Despite his experience, the Defendants denied the Plaintiff business opportunities and resources regularly given to white financial advisors at the Defendants. Edward D. Jones & Co., L.P., provides financial services for individual investors and businesses in the United States, Canada, and the United Kingdom. The company was founded in 1922 and is headquartered in St. Louis, Missouri. Edward D. Jones & Co., L.P. operates as a subsidiary of The Jones Financial Companies, L.L.L.P. [BN] The Plaintiff is represented by: Linda D. Friedman, Esq. Suzanne E. Bish, Esq. George S. Robot, Esq. STOWELL & FRIEDMAN LTD. 303 W. Madison Street, Suite 2600 Chicago, IL 60606 Telephone: (312) 431-0888 EL COCOTERO: Fails to Pay OT to Cooks, "Acosta" Suit Claims ----------------------------------------------------------- DANIEL EDGARDO ACOSTA IBARRA and ROBERTO JIMENEZ, individually and on behalf of others similarly situated, Plaintiffs, v. EL COCOTERO INC. (D/B/A EL COCOTERO); EL COCOTERO; EL HOGAR DE LOS VENEZOLANOS, INC. (D/B/A EL COCOTERO); EL COCOTERO, LLC (D/B/A EL COCOTERO); MIRIAN MAVAREZ; and LUIS QUINTERO (A.K.A. LUCHO), Defendants, Case No. 1:18-cv-04826 (S.D.N.Y., May 31, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendants as cooks. Mr. Acosta worked from September 2017 to April 29, 2018. Mr. Jimenez worked from April 18, 2017 to October 2017. El Cocotero Inc. (d/b/a El Cocotero) is a corporation organized and existing under the laws of the State of New York. The Company is engaged in the restaurant business. [BN]s The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 ELC BEAUTY: Faces "Wu" Suit in S.D. New York -------------------------------------------- A class action lawsuit has been filed against ELC Beauty LLC. The case is captioned as Kathy Wu, individually and on behalf of all others similarly situated, v. ELC Beauty LLC, Defendant, Case No. 1:18-cv-04350-RJS (S.D.N.Y., May 15, 2018). The case is assigned to Judge Richard J. Sullivan. ELC Beauty LLC is a New York corporation engaged in beauty salon business.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Tel: (917) 796-7437 Fax: (212) 982-6284 E-mail: danalgottlieb@aol.com ELONIS RESTAURANT: Underpays Kitchen Staff, "Carillo" Suit Says --------------------------------------------------------------- JOSE CARLOS CARILLO, individually and on behalf of all others similarly situated, Plaintiff v. Elonis Restaurant, Inc. d/b/a Landmark Diner, John Tiglias, and Thomas Tiglias, Defendants, Case No. 2:18-cv-03227 (E.D.N.Y., June 1, 2018) seeks to recover unpaid overtime wages, liquidated damages and attorneys' fees, pursuant to the Fair Labor Standards Act and New York Labor Law. The Plaintiff was employed by the Defendants as kitchen staff from the year 2009 to the present. Elonis Restaurant, Inc. d/b/a Landmark Diner is a corporation organized and existing under the laws of the state of New York, with office address at Roslyn, New York. [BN] The Plaintiff is represented by: Joan B. Lopez, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Boulevard, Suite 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 EMULEX CORP: Court Reverses Dismissal of "Varjabedian" Suit ----------------------------------------------------------- Judge Mary H. Murguia of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's dismissal of the case, GARY VARJABEDIAN, Plaintiff-Appellant, v. EMULEX CORPORATION; BRUCE C. EDWARDS; JEFFREY W. BENCK; GREGORY S. CLARK; GARY J. DAICHENDT; PAUL F. FOLINO; BEATRIZ V. INFANTE; JOHN A. KELLEY; RAHUL N. MERCHANT; NERSI NAZARI; DEAN A. YOOST; AVAGO TECHNOLOGIES WIRELESS (USA) MANUFACTURING, INC.; EMERALD MERGER SUB, INC., Defendants-Appellees, Case No. 16-55088 (9th Cir.), and remanded the case to the district court for it to reconsider the Defendants' motion to dismiss under a negligence standard. The case centers on the merger between Emulex and Avago. Emulex was a Delaware incorporated technology company that sold storage adapters, network interface cards, and other products. On Feb. 25, 2015, Emulex and Avago issued a joint press release announcing that they had entered into a merger agreement, with Avago offering to pay $8 for every share of outstanding Emulex stock. The $8 price reflected a premium of 26.4% on Emulex's stock price the day before the merger was announced. Pursuant to the terms of the announced merger agreement, a subsidiary of Avago, Emerald Merger Sub, Inc., initiated a tender offer for Emulex's outstanding stock on April 7, 2015. Emulex hired Goldman Sachs to determine whether the proposed merger agreement would be fair to shareholders. Based in part on Goldman Sachs' opinion, Emulex filed a 48-page Recommendation Statement with the Securities and Exchange Commission ("SEC"). Enough Emulex shareholders ultimately accepted the tender offer to consummate the merger. On May 5, 2015, Merger Sub merged into Emulex, with Emulex surviving as a wholly-owned subsidiary of Avago. Not all the shareholders, however, were happy with the merger's terms. Some believed the $8-per-share price offered was inadequate given Emulex's significant growth leading up to the tender offer and the company's prospects for future growth. The class of shareholders, who claimed they were misled by Emulex, Avago, Merger Sub, and the Emulex Board of Directors ("Defendants") into believing that the merger was better than it actually was, brought a lawsuit against Defendants. The district court eventually named Mutza Lead Plaintiff. The Plaintiff alleges that the Defendants violated federal securities laws, specifically Section 14(e) of the Exchange Act, by failing to summarize the Premium Analysis in the Recommendation Statement, which would have disclosed that the 26.4% premium was below average compared to similar mergers. The Plaintiff also sought to hold the directors of Emulex vicariously liable as "controlling persons" under Section 20(a) of the Exchange Act. The district court dismissed the complaint with prejudice. In deciding to do so, the district court concluded that Section 14(e) requires a showing of scienter and that the Plaintiff failed to plead scienter. Next, the district court rejected the Plaintiff's separate claim under Section 14(d), concluding that Section 14(d)(4) does not establish a private right of action for shareholders confronted with a tender offer. Finally, it dismissed the Section 20(a) claim because the Plaintiff did not adequately plead a claim under Section 14(d) or (e). The Plaintiff timely appeals. Because the text of the first clause of Section 14(e) is devoid of any suggestion that scienter is required, Judge Murgia concludes that the first clause of Section 14(e) requires a showing of only negligence, not scienter. Because the district court did not reach the question whether omitting the Premium Analysis -- a one-page chart containing 17 transactions involving semiconductor companies -- from the Recommendation Statement constitutes omission of a material fact in the context of the entire transaction, the Judge not reach the question. She says although it is difficult to show that this omitted information was indeed material, she remands for the district court to consider the question in the first instance. The Judge affirms the district court's conclusion that Section 14(d)(4) does not create an implied right of action. She finds that there is no indication of any legislative intent to provide for a private right of action. Section 14(d)(4) is a generic statute simply requiring that recommendation statements abide by the SEC's rules. The Judge also finds that the Plaintiff's claims under Section 20(a) of the Exchange Act necessarily depend on the Plaintiff's Section 14(d)(4) and (e) claims. Because the Plaintiff's Section 14(d)(4) claim fails, but the Plaintiff's Section 14(e) claim remains, the Section 20(a) claim also survives for the district court to consider on remand. Finally, she affirms the district court's dismissal of Merger Sub as a Defendant in the case. The Federal Rules of Civil Procedure are clear that a corporation's capacity to be sued is determined by the law under which it was organized. As a Delaware corporation, Merger Sub Corporation ceased to exist after the merger was consummated, and its rights and liabilities now belong to the surviving corporation, Emulex. Judge Murguia concludes that she is aware that her holding parts ways from her colleagues in five other circuits. However, she is persuaded that intervening guidance from the Supreme Court compels the conclusion that Section 14(e) of the Exchange Act imposes a negligence standard. Accordingly, she reversed the district court's decision as to the Section 14(e) claim because the district court employed a scienter standard in analyzing the Section 14(e) claim. The Judge also remanded for the district court to reconsider the Defendant's motion to dismiss under a negligence standard. On remand, she directed the district court to also consider whether the Premium Analysis was material, an argument that they raised but that the district court did not reach. In addition, the district court will consider the Plaintiff's Section 20(a) claim since the Section 14(e) claim survives. The Judge also affirmed the district court's conclusion that Section 14(d)(4) does not create an implied right of action. Finally, she affirmed the district court's dismissal of Merger Sub because it is not a proper Defendant. The parties will bear their own costs on appeal. A full-text copy of the Court's April 20, 2018 Opinion is available at https://is.gd/3dNQlP from Leagle.com. Juan E. Monteverde -- jmonteverde@monteverdelaw.com -- (argued), Monteverde & Associates PC, New York, New York; Barbara A. Rohr - - brohr@faruqilaw.com -- Faruqi & Faruqi LLP, Los Angeles, California; for Plaintiff-Appellant. Eric N. Landau -- elandau@jonesday.com -- (argued), and Travis Biffar -- tbiffar@jonesday.com -- Jones Day, Irvine, California; Erica L. Reilley -- matt.rawlinson@lw.com -- Jones Day, Los Angeles, California; for Defendants-Appellees Emulex Corporation, Bruce C. Edwards, Jeffrey W. Benck, Gregory S. Clark, Gary J. Daichendt, Paul F. Folino, Beatriz V. Infante, John A. Kelley, Rahul N. Merchant, Nersi Nazari, and Dean A. Yoost. Matthew Rawlinson -- matt.rawlinson@lw.com -- (argued) and Hilary Mattis -- hilary.mattis@lw.com -- Latham & Watkins LLP, Menlo Park, California; for Defendants-Appellees Avago Technologies Wireless (USA) Manufacturing, Inc.; Emerald Merger Sub, Inc. ENVISION HEALTHCARE: Faces Merger Challenges Amid Class Action -------------------------------------------------------------- Brooke Sutherland and Max Nisen, writing for Bloomberg News, report that health-care outsourcing companies are bad at doing deals, and private equity firms are their fixer of choice. Envision Healthcare Corp. on June 11 agreed to sell itself to KKR & Co. for $46 a share, or $9.9 billion including debt. The deal caps a more than six-month strategic review and comes just 18 months after Envision combined with AmSurg Corp. The Envision-AmSurg merger was meant to create a healthcare- services behemoth with $8.5 billion in sales and expertise in everything from ambulatory surgery to anesthesiology. And at the time, bulking up seemed like the right strategic move, with Medicare and other payers seeking to incentivize better coordination. But uncertainty over the Affordable Care Act has since weakened patient demand and undermined Envision's ability to capitalize on the revenue synergies that provided most of the financial logic for the AmSurg deal. Hurricanes in Texas and Florida last year didn't help. And Envision was ill-equipped to grapple with both the changing landscape and the deep-rooted organizational work necessary to make a large merger-of-equals succeed. A ragtag strategy is evident on the company's website, with AmSurg's name living on for an ambulatory surgical division that's carved out from the rest of the company. This February statement from CEO Christopher Holden about the challenges of drafting a 2017 plan for the merged entity is even more telling: "Because you're not allowed to really talk to one another when you're going through a merger process, the legacy AmSurg and legacy Envision each prepared their pieces and then we stitched those together at the time of the merger and it became the budget that we lived with." Envision made things harder on itself by continuing to gobble up physician groups across the country even as it was still digesting AmSurg. It's also been accused of sending enormous bills for out-of-network services that come as a surprise for patients who in some cases deliberately sought out hospitals within their insurance networks. These predatory practices led to a class action lawsuit from investors and soured Envision's relationship with UnitedHealth Group Inc., the largest U.S. insurer and at one point a reported possible buyer for all or part of the company. Envision's efforts to change its ways are likely to weigh on sales. Enter KKR. Reuters had reported HCA Healthcare was interested in acquiring the AmSurg ambulatory-surgery unit, with KKR taking the rest of Envision, effectively dismantling the merger. That KKR instead decided to go it alone suggests Envision had the right idea by consolidating the physician-outsourcing industry, but that it's a strategy best executed away from the glare of the public markets, especially given the billing controversies. Sky-high charges from air ambulance operators are also getting fresh scrutiny. In that space, KKR earlier this year purchased Envision's American Medical Response unit for $2.4 billion and combined it with a rival health-care transportation company it already owned. Then again, what do private equity firms know? Envision's history is littered with them. It was formed in 2005 when Canadian buyout shop Onex Corp. acquired American Medical Response (yes, the same transportation unit Envision sold to KKR earlier this year) and physician-services provider EmCare from Laidlaw International. Private equity firm Clayton, Dubilier & Rice then acquired the business in 2011 and took the company public in 2013. Onex had reportedly formed a consortium with Clayton Dubilier and Hellman Friedman to bid for Envision this time around. The end game here may be to merge AmSurg/Envision with Team Health Holdings Inc., which was acquired by Blackstone Group in 2017 for $6.1 billion. Team Health struggled to integrate its own $1.6 billion purchase of IPC Healthcare after spurning advances from AmSurg. Mind you, Blackstone had previously acquired Team Health in 2005 and took it public in 2009, only to dive back in for round two. It's not clear what long-lasting operational or capital allocation expertise these supposed masters in running companies have instilled at these health-care services companies, or what value they'll be able to add this time around beyond the shield of the private market. Can't wait for 2025 when we write about these companies getting broken up again. [GN] EPIC BUSINESS: Faces "Williams" Suit over Sale of Essential Oils ---------------------------------------------------------------- PRECIOUS WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. EPIC BUSINESS SERVICES, INC. d/b/a MAJESTIC PURE COSMECEUTICALS, Defendant, Case No. 7:18-CV- 04270 (S.D.N.Y., May 14, 2018) seeks to remedy the Defendant's deceptive and misleading business practices related to its sale of essential oil products. The complaint alleges that the Defendant manufactures, sells, and distributes the products using a marketing and advertising campaign that is centered around false claims appealing to health-conscious consumers that the products are of natural plant origins and are 100% Pure and Natural. On the contrary, the Defendant's products contain a spectacular array of artificial and synthetic chemicals. Epic Business Services, Inc. d/b/a Majestic Pure Cosmeceuticals is a corporation organized and existing under the laws of the State of California. The Company markets its product in New York and the U.S.[BN] The Plaintiff is represented by: Michael J. Gabrielli, Esq. GABRIELLI LEVITT LLP 2426 Eastchester Rd., Ste. 103 Bronx, NY 10469 Telephone: (718) 708-5322 Facsimile: (718) 708-5966 E-mail: michael@gabriellilaw.com ETSY INC: 2nd Cir. Affirms Dismissal of "Altayyar" Suit ------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit affirmed the judgment of the district court granting the Defendants-Appellees' motion to dismiss the case, SALEH ALTAYYAR, ANDREW HUANG, SARAH CHANG, and MARY M. GILTENAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, ARTHUR CERVANTES, MICHAEL WEISS, Intervenor-Plaintiffs, v. ETSY, INC., CHAD DICKERSON, KRISTINA SALEN, JAMES W. BREYER, M. MICHELE BURNS, JONATHAN D. KLEIN, FRED WILSON, GOLDMAN SACHS & CO., MORGAN STANLEY & CO. LLC, ALLEN & COMPANY LLC, LOOP CAPITAL MARKETS LLC, THE WILLIAMS CAPITAL GROUP, L.P., Defendants- Appellees, Case No. 17-1180-cv (2d Cir.). In this putative class action, the Plaintiffs-Appellants appeal from the district court's judgment entered March 23, 2017 granting the motion to dismiss of the Defendants-Appellees. The district court explained its reasoning in a memorandum decision and order issued March 16, 2017 Etsy is an online forum that allows individuals to buy and sell handmade items, vintage goods, and craft supplies. The Plaintiffs are investors who purchased or acquired Etsy securities and allege that the Defendants made material misstatements and omissions that artificially inflated Etsy's stock price, causing the Plaintiffs to suffer a loss when the stock price dropped. The Plaintiffs' claims largely originated from analyst reports, including one issued by Wedbush Securities, which suggested that Etsy was doing a poor job at identifying and removing items from its marketplace that (1) did not meet its terms and guidelines or (2) infringed trademarks or copyrights. According to them, the revelations in these notes resulted in a decline in Etsy's stock value, which is the basis for their claim of injury. The Plaintiffs' "revised amended" complaint alleges that Etsy and its officers violated Section 10(b) of the Securities Exchange Act of 1934 (Count I); Etsy's officers violated Section 20(a) of the Exchange Act, (Count II) and Section 15 of the Securities Act of 1933 ("Securities Act") (Count V); and all the Defendants violated Sections 11 and 12(a)(2) of the Securities Act (Counts III-IV). The district court dismissed the Complaint with prejudice for failure to state a claim. The Plaintiffs appeal. The Appellate Court finds that the Complaint fails to allege actionable material misstatements or omissions. Rather, the purported misstatements consist of vague aspirational statements; or statements of opinion; or statements of policy and values. While the Complaint does rely on some factual statements, the Court finds that it fails to plausibly allege that they are false or misleading. As the Plaintiffs have not identified any actionable statements, the district court correctly dismissed Count I. As secondary liability under Section 20(a) depends on a primary violation of Section 10(b), the district court also correctly dismissed Count II. Additionally, the district court correctly dismissed Counts III-V as the Securities Act claims also required allegations of material misrepresentations. Having considered all of the Plaintiffs' remaining arguments, the Court concludes they are without merit. Accordingly, it affirmed the judgment of the district court. A full-text copy of the Court's April 24, 2018 Summary Order is available at https://is.gd/j0DSuf from Leagle.com. MATTHEW L. TUCCILLO -- mltuccillo@pomlaw.com -- (Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Jennifer B. Sobers -- jbsobers@pomlaw.com -- on the brief), Pomerantz LLP, New York, New York, for Plaintiffs-Appellants. STEPHEN P. BLAKE -- sblake@stblaw.com -- (James G. Kreissman -- jkreissman@stblaw.com -- Jonathan K. Youngwood -- jyoungwood@stblaw.com -- on the brief), Simpson Thacher & Bartlett, New York New York, for Defendants-Appellees GOLDMAN SACHS & CO. LLC, MORGAN STANLEY & CO., LLC, LOOP CAPITAL MARKETS, LLC, AND THE WILLIAMS CAPITAL GROUP, L.P. JOSEPH R. PALMORE -- jpalmore@mofo.com -- (Kayvan B. Sadeghi -- ksadeghi@mofo.com -- Joel C. Haims -- jhaims@mofo.com -- Seth W. Lloyd -- slloyd@mofo.com -- on the brief), Morrison & Foerster LLP, New York, New York, and Washington, D.C., for Defendants- Appellees, ETSY, INC., CHAD DICKERSON, KRISTINA SALEN, JAMES W. BREYER, M. MICHELE BURNS, JONATHAN D. KLEIN, AND FRED WILSON. FAST TAX SERVICE: Made Unsolicited Calls, "Broomfield" Suit Says ---------------------------------------------------------------- SABRINA BROOMFIELD, individually and on behalf of all others similarly situated, Plaintiff v. FAST TAX SERVICE, INC., Defendant, Case No. 2:18-cv-05403-SSV-KWR (E.D. La., May 29, 2018) seeks to stops the Defendant's practice of sending unsolicited text messages and prerecorded messages to cellular telephones without the recipient's prior express written consent. Fast Tax is a corporation licensed to do and doing business in Louisiana. [BN] The Plaintiff is represented by: Jonathan M. Kirkland, Esq. Roberto Luis Costales, Esq. William H. Beaumont, Esq. BEAUMONT COSTALES LLC 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 Facsimile: (504) 272-2956 FBCS INC: Allen Sues over Wrongful Debt Collection Practices ------------------------------------------------------------ Lysa Allen, individually and on behalf of all others similarly situated, Plaintiff v. FBCS, Inc., and John Does 1-25, Defendants, Case No. 1:18-cv-02681-MHC-RGV (N.D. Ga., May 31, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect debt. FBCS, Inc. is a debt collection agency. [BN] The Plaintiff is represented by: Jonathan B. Mason, Esq. MASON LAW GROUP, P.C. 1100 Peachtree St. NE, Ste 200 Atlanta, GA 30309 Telephone: (404) 920-8040 Facsimile: (404) 920-8039 E-mail: jmason@atlshowbizlaw.com FIAT CHRYSLER: Wants Judge to Trim Claims Cherokee Defect Suit -------------------------------------------------------------- Linda Chiem, writing for Law360, reports that Fiat Chrysler asked a California federal judge on June 8 to trim claims in a suit alleging it deceived consumers into buying Jeep Grand Cherokees with defective power distribution systems, saying the plaintiffs have no evidence to back their claims. The automaker's U.S. unit FCA US LLC moved for partial summary judgment on plaintiffs David and Kathleen Donner's fraudulent inducement and punitive damages claims in their suit alleging the company knowingly sold 2011 Jeep Grand Cherokees with defective "totally integrated power modules." The case is David I. Donner et al v. FCA US LLC et al, Case No. 2:17-cv-02303 (C.D. Cal.). The case is assigned to Judge Michael R. Wilner. The case was filed March 24, 2017. [GN] FILLMORE HOSPITALITY: Underpays Room Attendant, Romero Claims ------------------------------------------------------------- JACQUELINE ROMERO, individually and on behalf of all others similarly situated, Plaintiff v. FILLMORE HOSPITALITY, LLC, d/b/a CAMBRIA EL SEGUNDO; and DOES 1 through 100, Defendants, Case No. BC705667 (Cal. Super., May 18, 2018) is an action against the Defendants for failure to authorize and permit all rest periods, pay all vacation wages, pay all wages owed upon termination, and provide accurate itemized wage statements. Ms. Romero was employed by the Defendants as room attendant from April 3, 2017 to September 2017. Fillmore Hospitality LLC provides a full spectrum of investment management and property management services to owners of hotels and resorts throughout North America. [BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo. CA 90245 Telephone: (424) 322-4772 Facsimile: (424) 322-4775 E-mail: slidman@lidmanlaw.com enguyen@lidmanlaw.com - and - Paul K. Haines, Esq. HAINES LAW GROUP, APC 222 North Sepulveda Blvd, Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile (424) 292-2355 E-mail: phaines@haineslawgroup.com FINISH LINE INC: Barnett Sues over JD Sports Merger Transaction --------------------------------------------------------------- COREY BARNETT, individually and on behalf of all others similarly situated, Plaintiff v. THE FINISH LINE, INC.; GLENN S. LYON; TORRENCE BOONE; RICHARD P. CRYSTAL CATHERINE A. LANGHAM; STEPHEN GOLDSMITH; WILLIAM P. CARMICHAEL; SAMUEL M. SATO; and FAISAL MASUD, Defendants, Case No. 1:18-cv-01580-SEB-TAB (S.D. Ind., May 24, 2018) seeks to enjoin shareholder voting on a proposed merger transaction, pursuant to which the The Finish Line, Inc. will be acquired by JD Sports Fashion Plc through JD Sports' wholly-owned subsidiary Genesis Merger Sub, Inc. According to the complaint, that on March 26, 2018, Finish Line issued a press release that announced it had entered into an Agreement and Plan of Merger with JD Sports, pursuant to which each of Finish Line's issued and outstanding Class A common shares will be converted into the right to receive $13.50 in cash. The Proposed Merger is valued at approximately $558 million. On May 7, 2018, Finish Line filed a Registration Statement with the SEC. The Registration Statement, which recommends that its shareholders vote in favor of the Proposed Merger, omits or misrepresents material information concerning, among other things: (a) Finish Line's financial projections, including the financial projections relied upon by its financial advisors, PJ Solomon Securities, LLC and Houlihan Lokey Capital, Inc.; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinions provided by Solomon and Houlihan; and (iii) potential conflicts of interest. Unless remedied, Finish Line's shareholders will be forced to make a voting decision on the Proposed Merger without full disclosure of all material information concerning the Proposed Merger being provided to them. Plaintiff seeks to enjoin the shareholder vote on the Proposed Merger unless and until such Exchange Act violations are cured. The Finish Line, Inc., together with its subsidiaries, operates as a retailer of athletic shoes, apparel, and accessories for men, women, and kids. The Finish Line, Inc. was founded in 1976 and is based in Indianapolis, Indiana. [BN] The Plaintiff is represented by: Eric S. Pavlack, Esq. Colin E. Flora, Esq. PAVLACK LAW, LLC 9011 N. Meridian St., Ste. 203 Indianapolis, IN 46260 Telephone: (317) 251-1100 Facsimile: (317) 252-0352 E-mail: Eric@PavlackLawFirm.com Colin@PavlackLawFirm.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY MCKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 E-mail: tjmckenna@gme-law.com gegleston@gme-law.com FIRST CONNECT: Made Unsolicited Calls, Fabricant Alleges -------------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff v. FIRST CONNECT INC. d/b/a US MERCHANT SERVICE; KENT KUSZAJEWSKI; and DOES 1 through 10, Defendants, Case No. 2:18-cv-04587 (C.D. Cal., May 25, 2018) alleges that the Defendants has made unsolicited calls in violation of the Telephone Consumer Protection Act. According to the complaint, the Plaintiff received telephone calls from the Defendants using automatic telephone dialing system, or an artificial or prerecorded voice, and the Plaintiff had not previously provided his telephone number, and had not given his express consent. First Connect Inc. d/b/a US Merchant Service is a business equipment sales company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 877-206-4741 Facsimile: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com FLANNY PRODUCTIONS: Pollister Sues over Gender Discrimination ------------------------------------------------------------- Lawrence Pollister, individually and on behalf of all others similarly situated, Plaintiff v. ILIZA SHLESINGER; FLANNY PRODUCTIONS LTD; MARK BRIAN FLANAGAN; UNITED TALENT AGENCY LLC and DOES 1 through 50, Defendants, Case No. BC705961 (Cal. Super., Los Angeles Cty., May 14, 2018) is an action against the Defendants' gender exclusive admission practice which contravenes strong public policy to eradicate sex discrimination. The complaint alleges that the Defendants intentionally denied equal accommodations, advantages, facilities, privileges, or services to the Plaintiff and the Class, when the Defendants deny the Plaintiff and the Class, admission into the Defendants' show Girls Night In With Iliza - No Boys Allowed. Flanny Productions Ltd. is a California corporation doing business as The Coronet Theater. The Company operates a bar and a theater. [BN] The Plaintiff is represented by: Alfred G. Rava, Esq. RAVA LAW FIRM 3667 Voltaire Street San Diego, CA 92106 Telephone: (619) 238-1993 Facsimile: (619) 374-7288 E-mail: alrava@cox.net FLOWERS HOSPITAL: Settles Patient Data Breach Class Action ---------------------------------------------------------- Ken Curtis, writing for WTVY.com, reports that people who sued after others used their stolen personal information to file fraudulent income tax returns may soon receive financial settlements. Attorneys for Flowers Hospital and lawyers representing the victims recently reached an agreement in a class action lawsuit. The terms, not yet disclosed, must be approved by a federal judge. The hospital became aware of the thefts in 2014, when a police officer noticed patient files in lab worker, Kamarian Millender's car. Police discovered the files after he ran out of gas in Headland. Mr. Millender admitted in court he sold the information to people who used it file the returns and served two years in prison. At least 70 people were scammed. Prosecutors said the false tax returns attempted to defraud an estimated $536,000 from the Internal Revenue Service. "The IRS was able to stop the vast majority of the falsely claimed refunds, but approximately $18,915 in refunds were issued," according to a statement from the U.S. Attorney. Generally speaking, in class action lawsuits that are settled, a certain amount of money is set aside and a claims administrator disperses the funds based upon loss and circumstances that are often different in every case. It's not clear when those affected by the data breach can begin filing claims, assuming the settlement is approved by U.S. District Judge Keith Watkins. [GN] FORD MOTOR: Fourth Circuit Appeal Filed in "Johnson" Class Suit --------------------------------------------------------------- Plaintiffs CHARLES JOHNSON, et al., filed an appeal from a court ruling in their consolidated lawsuit styled CHARLES JOHNSON, et al. v. FORD MOTOR COMPANY, Case No. 3:13-cv-06529, in the U.S. District Court for the Southern District of West Virginia at Huntington. The nature of suit is stated as Motor Vehicle Product Liability. As previously reported in the Class Action Reporter, the Plaintiffs sought certification of 15 statewide classes. The appellate case is captioned as Lance Belville, et al. v. Ford Motor Company, Case No. 18-1470, in the United States Court of Appeals for the Fourth Circuit.[BN] The Plaintiffs-Appellants are represented by: Jeff A. Almeida, Esq. Kyle J. McGee, Esq. GRANT & EISENHOFER P.A. 123 Justison Street Wilmington, DE 19801 Telephone: (302) 622-7000 Facsimile: (302) 622-7100 E-mail: jalmeida@gelaw.com kmcgee@gelaw.com - and - Nathan B. Atkinson, Esq. SPILMAN THOMAS & BATTLE, PLLC 110 Oakwood Drive, Suite 500 Winston-Salem, NC 27103 Telephone: (336) 725-4496 E-mail: natkinson@spilmanlaw.com - and - Niall Anthony Paul, Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3874 E-mail: npaul@spilmanlaw.com - and - Timothy C. Bailey, Esq. L. Lee Javins, II, Esq. BAILEY, JAVINS & CARTER, L.C. P. O. Box 3712 Charleston, WV 25337-0000 Telephone: (304) 345-0346 E-mail: Timbailey@BJC4U.com Ljavins@BJC4U.com - and - James R. Bartimus, Esq. Stephen M. Gorny, Esq. BARTIMUS, FRICKLETON & ROBERTSON, P.C. 11150 Overbrook Road, Suite 200 Leawood, KS 66211 Telephone: (913) 266-2300 Facsimile: (913) 266-2366 E-mail: jb@bflawfirm.com steve@bflawfirm.com - and - Stacey Kelly Breen, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLP 270 Madison Avenue New York, NY 10016-0000 Telephone: (212) 545-4600 Facsimile: (212) 545-4693 E-mail: Breen@whafh.com - and - Keith G. Bremer, Esq. Jason H. Dang, Esq. Alison K. Hurley, Esq. Benjamin L. Price, Esq. BREMER WHYTE BROWN & O'MEARA, LLP 20320 SW. Birch Street, Second Floor Newport Beach, CA 92660 Telephone: (949) 221-1000 Facsimile: (949) 221-1001 E-mail: kbremer@bremerwhyte.com jdang@bremerwhyte.com ahurley@bremerwhyte.com bprice@bremerwhyte.com - and - Guy Richard Bucci, Esq. HENDRICKSON & LONG, PLLC 214 Capitol Street Charleston, WV 25301 Telephone: (304) 346-5500 E-mail: gbucci@handl.com - and - Grant Lavalle Davis, Esq. Timothy C. Gaarder, Esq. DAVIS BETHUNE & JONES 1100 Main Street Kansas City, MO 64105 Telephone: (816) 421-1600 Facsimile: (816) 472-5972 E-mail: gdavis@dbjlaw.net tgaarder@dbjlaw.net - and - Mark A. DiCello, Esq. Robert F. DiCello, Esq. DICELLO LAW FIRM 7556 Mentor Avenue Western Reserve Law Building Mentor, OH 44060 Telephone: (440) 953-8888 Facsimile: (440) 953-9138 E-mail: madicello@dicellolaw.com rfdicello@dicellolaw.com - and - Adam J. Levitt, Esq. John E. Tangren, Esq. DICELLO LEVITT & CASEY 10 North Dearborn Street Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dlcfirm.com jtangren@dlcfirm.com - and - Richard L. Merpi II, Esq. E. Powell Miller, Esq. THE MILLER LAW FIRM, P.C. 950 West University Drive, Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 Facsimile: (248) 652-2852 E-mail: rlm@millerlawpc.com epm@millerlawpc.com - and - John Timothy Murray, Sr., Esq. MURRAY AND MURRAY CO., L.P.A. 111 East Shoreline Drive Sandusky, OH 44870 Telephone: (419) 624-3000 Facsimile: (419) 624-0707 E-mail: jotm@murrayandmurray.com - and - John Scarola, Esq. C. Calvin Warriner III, Esq. SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Telephone: (561) 686-6300 E-mail: jsx@searcylaw.com ccw@searcylaw.com - and - Joseph J. Siprut, Esq. Matthew M. Wawrzyn, Esq. SIPRUT PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 948-9212 E-mail: jsiprut@siprut.com mwawrzyn@siprut.com - and - Gregory M. Travalio, Esq. Mark H. Troutman, Esq. ISAAC WILES BURKHOLDER & TEETOR, LLC Two Miranova Place, Suite 700 Columbus, OH 43215 Telephone: (614) 221-2121 Facsimile: (614) 365-9516 E-mail: gtravalio@isaacwiles.com mtroutman@isaacwiles.com Defendant-Appellee FORD MOTOR COMPANY is represented by: Michael Bonasso, Esq. William Jameson Hanna, Esq. Susan W. Romaine, Esq. Bradley J. Schmalzer, Esq. FLAHERTY, SENSABAUGH & BONASSO, PLLC 200 Capitol Street P. O. Box 3843 Charleston, WV 25338-3843 Telephone: (304) 347-4259 E-mail: mbonasso@flahertylegal.com whanna@flahertylegal.com bschmalzer@flahertylegal.com - and - Tennille Jo Checkovich, Esq. Perry Watson Miles, IV, Esq. Sarah Virginia Bondurant Price, Esq. Brian David Schmalzbach, Esq. John Tracy Walker, IV, Esq. MCGUIREWOODS, LLP 800 East Canal Street P. O. Box 3916 Richmond, VA 23219 Telephone: (804) 775-4758 Facsimile: (804) 440-7770 E-mail: tcheckovich@mcguirewoods.com pmiles@mcguirewoods.com vbondurant@mcguirewoods.com bschmalzbach@mcguirewoods.com twalker@mcguirewoods.com - and - Jill Crawley Griset, Esq. MCGUIREWOODS, LLP 201 North Tyron Street Charlotte, NC 28202 Telephone: (704) 343-2000 E-mail: jgriset@mcguirewoods.com - and - Peter J. Fazio, Esq. AARONSON RAPPAPORT FEINSTEIN & DUETSCH 600 Third Avenue New York, NY 10016 Telephone: (212) 593-5458 E-mail: pjfazio@arfdlaw.com - and - Jeffrey Alan Holmstrand, Esq. GROVE, HOLMSTRAND & DELK, PLLC 44 1/2 15th Street Wheeling, WV 26003 Telephone: (304) 905-1961 - and - Jodi Munn Schebel, Esq. BOWMAN & BROOKE, LLP 1800 Fisher Building 3011 West Grand Boulevard Detroit, MI 48202-0000 Telephone: (248) 205-3300 E-mail: jodi.schebel@bowmanandbrooke.com - and - Harold C. Zuckerman, Esq. MCAFEE & TAFT 2 West Second Street Tulsa, OK 74103 Telephone: (918) 587-0000 E-mail: harold.zuckerman@mcafeetaft.com FREUDENBERG HOUSEHOLD: Fails to Pay OT, "Carrasco" Suit Says ------------------------------------------------------------ FATIMA CARRASCO, individually and on behalf of all others similarly situated, Plaintiffs v. FREUDENBERG HOUSEHOLD PRODUCTS LP, Defendant, Case No. 1:18-cv-03591 (N.D. Ill., May 21, 2018) alleges that the Defendant failed to compensate the Plaintiff at the proper overtime rate for all the work he performed in excess of 40 hours per week in violation of the Fair Labor Standards Act. Ms. Carrasco was employed by the Defendant as inventory coordinator. Freudenberg Household Products LP is a corporation organized and existing under laws of the State of Delaware. [BN] The Plaintiff is represented by: John Kunze, Esq. David J. Fish, Esq. Kimberly Hilton, Esq. THE FISH LAW FIRM P.C. 200 E 5th Ave Suite 123 Naperville, IL 60563 Telephone: (630)355-7590 Facsimile: (630)778-0400 FRIEZE NEW YORK: Faces Class Action Over Excessive Heat at Tent --------------------------------------------------------------- Eileen Kinsella, writing for artnet News, reports that one day after Frieze organizers sent an email to the nearly 200 exhibitors at its recent New York edition offering refunds of up to 10 percent due to the excessive temperatures in its bespoke tent, Shane Campbell fired back, saying, in effect, "not good enough." A lawsuit filed by the Chicago gallery seeks a full refund of its fair costs. The claim, for which the plaintiffs hope to achieve class action status, requests judgment of $15 million, plus damages. A month after the seventh edition of Frieze New York opened to VIPs on Randall's Island, the epic and "unbearable" heat inside the tent remains a much-discussed issue. By all accounts, the tent's cooling and ventilation system failed miserably as a heat wave hit New York, causing temperatures to soar and tempers to flare among the well-heeled crowd. The rumor mill and social media were awash with complaints and puns about the effects of the torrid atmosphere on the ability to look at, no less buy, pricey artworks. A representative for Frieze told artnet News that Frieze has not received any formal notice of the lawsuit and therefore cannot comment. The lawsuit, filed June 8 in US District Court for the Southern District of New York, alleges that Frieze Events breached its contractual promise by "failing to properly design, test, and regulate the ability of the air conditioning system at the Art Fair to maintain an environment within which Exhibitors could conduct commercial business." The lawsuit, in which the gallery's co-owner Julie Campbell is also named as a plaintiff, asserts that Frieze management admitted it was aware in advance of an impending heatwave and was expecting record-breaking temperatures "but was grossly negligent in preparing the site for such heat and ensuring a reasonably efficient air conditioning system." As a "direct result of the oppressive heat," the suit says "art customers, collectors, consultants and their clients and other attendees could not remain in the site and were forced to leave." Exhibitors "suffered substantial financial losses," as a result. The lawsuit is seeking cancellation of the contracts that participating galleries signed and reimbursement of all sums paid for participation at the fair. Each exhibitor paid approximately $78.50 per square foot, for booths ranging from about 431 square feet, to 1,292 square feet, according to the complaint. The gallery's contract with Frieze is attached as an exhibit to the complaint. Further, it says, Frieze added a surcharge of up to 15 percent for "privileged locations" such as corner booths or booths on the open squares. "This case is not about us," according to a statement from Julie Campbell given to artnet News via her attorney, Lewis Saul. "It's about holding a professional organization responsible for the losses caused by its failure to provide functional space. All the galleries invest so much to set up a booth at the fair. Frieze simply did not do their job." Shane Campbell Gallery has exhibited at Frieze New York each year since the launch of the edition in 2012. The suit zeroes in on the new tent structure introduced this year -- a series of tents forming discrete sections as opposed to the previous snaking, singular form -- and the fact that air conditioning vents were relocated to the upper levels of the tents from the floor, as a key source of the problem. However, regular visitors to the fair know that weather-related vulnerabilities are hardly a new thing. Previous editions have seen jitters about rain-driven leaks and excessive winds. Indeed, excessive heat in some prior editions of Frieze New York prompted fairgoers to amass around so-called "cool spots" in the previous tent where vents pumped out conditioned air from below. The lawsuit claims that according to Accuweather, the outdoor temperature on Randall's Island reached 90 degrees on May 2, 93 degrees on May 3, and 84 degrees on May 4. While some visitors "unable to bear the heat" were forced to exit the tent, others canceled their planned appointments and "many people became ill from the conditions," the lawsuit asserts. After the fair, the gallery sought to negotiate a return of all fees paid to Frieze in connection with participation. Instead, the suit says, Frieze offered to return 2.5 percent of the fees the gallery paid. The plaintiffs say that the requirements for a class action are in place since "Frieze has acted or refused to act on grounds generally applicable to the Class making appropriate final injunctive or equitable relief with respect to the Class as a whole." The claims include breach of contract and unjust enrichment. The plaintiffs are requesting a jury trial. Mr. Saul describes Frieze's partial refund offer as "wholly inadequate," adding: "We intend to litigate this to the fullest extent possible to give galleries what they deserve." [GN] FRONTLINE ASSET: Cirruzzo Sues over Debt Collection Practices ------------------------------------------------------------- Barbara Cirruzzo, individually and on behalf of all others similarly situated, Plaintiff v. Frontline Asset Strategies, LLC, Defendant, Case No. 1:18-cv-02866-AMD-SJB (E.D.N.Y., May 14, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect debt. The case is assigned to Judge Ann M. Donnelly and referred to Magistrate Judge Sanket J. Bulsara. FrontLine Asset Strategies LLC is headquartered in Twin Cities. The Company offers debt collection, judgment enforcement, and legal services. [BN] The Plaintiff is represented by: Jacob Silver, Esq. JACOB SILVER, ATTORNEY AT LAW 237 Club Dr Woodmere, NY 11598 Telephone: (718) 855-3834 Facsimile: (718) 534-0057 E-mail: silverbankruptcy@gmail.com GCI SOLAR: "Benkert" Sues Over Auto-dialed Telemarketing Calls -------------------------------------------------------------- Judith Benkert, individually and on behalf of all others similarly situated, Plaintiff, v. GCI Solar LLC, Defendant, Case No. 18-cv-01025, (D. Colo., May 2, 2018), seeks statutory damages, together with costs and reasonable attorney's fees for violation of the Telephone Consumer Protection Act, including attorneys' fees and costs. Plaintiff alleges that GCI called her residential phone without consent, using an auto-dialer while her number was on the Do Not Call Registry. GCI Solar is a company that provides solar energy solutions to consumers, installing solar panels onto home roofs and structures. [BN] Plaintiff is represented by: Steven Woodrow, Esq. Patrick Peluso, Esq. Woodrow & Peluso, LLC 3900 E. Mexico Avenue, Suite 300 Denver, CO 80210 Phone: (720) 213-0675 Email: swoodrow@ppeluso.com ppeluso@woodrowpeluso.com GEICO GENERAL: Faces "Camme" over Motor Vehicle Insurance Policy ---------------------------------------------------------------- CAMME TRANSPORTATION, INC., individually and on behalf of all others similarly situated, Plaintiff v. GEICO INTERNATIONAL INSURANCE COMPANY, Defendant, Case No. 18CV776D (Mass. Super., Essex Cty., May 21, 2018) seeks to recover damages against the Defendant for its unlawful willful and knowing practice of refusing to tender amounts owed to third-party claimants in consideration of the diminution in value their automobiles suffer as a result of the negligence of the insured individual of the Defendants. The Plaintiff alleges that on May 24, 2016, a motor vehicle was involved in an accident involving the Defendant's insured, Ms. Glenda Ortiz. At the time of the collision, Ms. Ortiz was insured under a policy of insurance issued by the Defendant, which included indemnity benefits available to pay for third-party property damage. The Plaintiff made a demand for payment to the Defendant in relation to the property damage claim of Ms. Ortiz. The motor vehicle subject to the collision was examined by Travelers Insurance Company. On May 27, 2016, Travelers Insurance determined that the motor vehicle suffered $7,240.10 in damage. On June 13, 2016, Travelers Insurance determined, through another appraiser, that the motor vehicle suffered $8,725.83 in damage. On June 13, 2016, an adjuster for Travelers Insurance revised the estimate to reflect that the motor vehicle suffered a total of $15,359.89 in damage. The Defendant then paid Travelers Insurance for repairs made to the motor vehicle. The Defendant paid Travelers Insurance an amount purportedly in full consideration for the damages suffered by the motor vehicle without ever appraising the vehicle. The Defendant's initial tender for property damage did not include any consideration for the inherent diminished value of the motor vehicle suffered as a result of the collision. Geico International Insurance Company is an automobile insurance company licensed and registered in Massachusetts. [BN] The Plaintiff is represented by: Kevin J. McCullough, Esq. FORREST LAMOTHE 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (617) 231-7829 E-mail: kmccullough@forrestlamothe.com jyasi@forrestlamothe.com mforrest@forrestlamothe.com GEICO GENERAL: Court Narrows Claims in "Green" Suit --------------------------------------------------- Judge Eric M. Davis of the Superior Court of Delaware granted in part and denied in part without prejudice Geico's motion to dismiss the case, YVONNE GREEN, WILMINGTON PAIN & REHABILITATION CENTER, and REHABILITATION ASSOCIATES, P.A., on behalf of herself and all others similarly situated, Plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, Defendant, C.A. No. N17C-03-242 EMD CCLD (Del. Super.). Yvonne Green, Wilmington Pain & Rehabilitation Center ("WPRC"), and Rehabilitation Associates, P.A. ("RA") sued on behalf of themselves and all others similarly situated, against GEICO. The Plaintiffs' case challenges GEICO's process for evaluating personal injury protection ("PIP") claims submitted to Geico by its insureds. Under Delaware law and pursuant to GEICO's contractual obligations, after an insured submits a proof of loss, it must repay all reasonable and necessary expenses incurred within two years from the date of the accident. This includes compensation for medical and hospital services. In evaluating PIP claims, GEICO relies on the Rules that purportedly analyze all claims the same way, regardless of the facts giving rise to the claim. These Rules are the source of the present litigation. The first rule at issue is the Geographic Reduction Rule ("GRR"). Under the GRR, GEICO sets an arbitrary cap at the "80th percentile" of other claims submitted to GEICO within a particular geographic region. As a result of the GRR, 20% of bills submitted to GEICO for reimbursement are automatically deemed "unreasonable," without inquiry into the facts giving rise to the claim or any factors that could impact pricing. Based on this, the Plaintiffs allege that the GRR is, in effect, a secret cap on what GEICO will pay. The second rule at issue is the Passive Modality Rule ("PMR"). Under the PMR, GEICO automatically denies payment for certain passive modalities when treatment occurs more than eight weeks from the date of the automobile accident. GEICO enforces the PMR without making any inquiry into the facts or treatment to determine if treatment is appropriate. Based on this, the Plaintiffs allege that the PMR is, in effect, a secret policy exclusion on what GEICO will pay. Additionally, GEICO does not disclose its claims handling policies, the GRR, or the PMR to its insureds. On Aug. 1, 2017, GEICO filed a Motion to Dismiss Plaintiffs' First Amended Class Action Complaint, urging the Court to follow the reasoning used by the U.S. District Court for the District of Delaware when decertifying a similar class. GEICO argues that the Court cannot certify a class in this case because individual issues will predominate the case regarding damages. Additionally, it argues that the Plaintiffs' allegations fail to state a claim for which relief can be granted. Judge Davis finds that it is premature to dismiss the civil action before the Plaintiffs have an opportunity to engage in discovery and retain experts. It is not clear how Plaintiffs plan to seek damages. If they seek to get individual damages for each class member for the difference between the insured's claim and the amount paid by Geico on that claim, then the Plaintiffs' individual issues may override the common questions. However, at this point in the litigation, he holds the Plaintiffs claim survives and the issue of class certification is premature. Because it is unclear whether the Plaintiffs will move or maintain the class under a different subsection, the Judge does not find based on a Rule 12(b)(6) standard that the Plaintiffs could not maintain a class under any circumstances. GEICO also claims that the class definitions in paragraphs 64 and 80 are facially deficient. The Plaintiffs define the Claimant Class as all persons who submitted PIP claims to Geico after March 10, 2011, which were reduced or denied under the Rules. Additionally, the Plaintiffs define the Insured Class as those insureds whose PIP claims were submitted by medical providers after March 10, 2011, which were reduced or denied under the Rules. The Claimant Sub-Class includes all medical providers who submitted claims to Geico on behalf of patients after March 10, 2011, which were reduced or denied under the Rules. The Judge finds that the class definitions do not presently limit the class to those members who suffered an improper denial based on the Rules. This "problem," he says, can be rectified with an amended pleading after discovery or through a claim process. Taking the allegations as true, GEICO's use of the Rules created this dilemma. As argued to the Court, GEICO uses the Rules and does not individually analyze each claim. Therefore, no one, including Geico, knows which GEICO customers had their claims properly rejected and those that did not have their claims properly rejected. The Judge will allow the Plaintiffs, at this early stage of the proceedings, a chance to further refine this issue in discovery. The Judge further finds that GEICO's ability to protect itself will not suffer prejudice. WPRC and RA were added to the Amended Complaint on Dec. 11, 2015. Although it argues that the amendments increased the class, the amendment took place nearly two years earlier. In fact, the Plaintiffs have not moved to certify the class at this point. It does not appear that GEICO would suffer harm in ability to defend itself. Because the Plaintiffs allegedly suffered damages and were not made whole under the code or otherwise, and Geico has not remedied its purported breach of the contract or statute, the Judge holds that declaratory judgment would not undermine the General Assembly or the Insurance Commissioner's powers. In fact, the Insurance Commissioner stated in the Commissioner's Letter that the insurance code does not provide for any private enforcement action by his department. If the Plaintiffs can factually develop their case, the Judge finds that a declaratory judgment would be an appropriate remedy for the issues raised in the case. At this stage in the proceeding, the Judge finds that the Plaintiffs sufficiently pleaded that GEICO breached the implied covenant. Moreover, WPRC and RA were acting in the same capacity as the insureds. Therefore, WPRC and RA were not in horizontal privity with Geico and cannot bring a DTP claim. Finally, the Judge finds that the factual record in the matter is not complete. Discovery has yet to complete. Based on the Complaint, the allegations lead to the possibility of the award of punitive damages based on Geico's conduct. However, as the factual record develops, punitive damages may no longer be viable for the action. As such, the Judge says this issue is more appropriately addressed on a motion for summary judgment or pretrial request to preclude the Plaintiffs from seeking punitive damages. For the reasons set forth, Judge Davis granted in part and denied in part the Motion. He permitted the Defendants to reassert any relevant arguments during class certification. The Parties should contact the Court to schedule a status conference regarding class certification. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/GK9nCr from Leagle.com. Richard H. Cross, Jr., Esquire -- rcross@crosslaw.com -- Christopher P. Simon, Esquire -- csimon@crosslaw.com -- Cross & Simon, LLC, Wilmington, Delaware, Attorneys for Plaintiffs Yvonne Green, Wilmington Pain & Rehabilitation Center, and Rehabilitation Associates, P.A. Paul A. Bradley, Esquire -- PAB@maronmarvel.com -- Maron Marvel Bradley Anderson & Tardy, LLC, Wilmington, Delaware, George M. Church, Esquire, Miles & Stockbridge P.C., Baltimore, Maryland, Meloney Perry, Esquire -- mperry@mperrylaw.com -- Perry Law, P.C., Dallas, Texas, Attorneys for Defendant GEICO General Insurance Company. GENERAL DYNAMICS: 4th Cir. Affirms Dismissal of "Cunningham" ------------------------------------------------------------ Judge Henry Franklin Floyd of the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's dismissal of the case, CRAIG CUNNINGHAM, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant-Appellee, Case No. 17- 1592 (4th Cir.) for lack of subject matter jurisdiction. Cunningham alleges that he received an autodialed, prerecorded phone call from General Dynamics Information Technology, Inc. ("GDIT") advertising the commercial availability of health insurance, without having given his prior express consent, in violation of the Telephone Consumer Protection Act ("TCPA"). The district court granted GDIT's motion to dismiss for lack of subject matter jurisdiction on the ground that GDIT is immune from suit under the Yearsley doctrine, which immunizes government contractors from suit when the government authorized the contractor's actions and the government validly conferred that authorization. On appeal, Cunningham argues that the district court erred in conferring Yearsley v. W. A. Ross Constr. Co. immunity and consequently dismissing the suit for three distinct reasons. First, he asserts that the Yearsley doctrine does not apply as a matter of law to federal claims. Next, he asserts that GDIT fails to qualify for Yearsley immunity both because the government did not authorize its actions and because the authorization was not validly conferred. Finally, he asserts that even if Yearsley immunity applies, Yearsley is a merits defense from liability rather than a jurisdictional immunity. Judge Floyd finds Cunningham's arguments unpersuasive. First, the Judge finds that in describing the immunity, he finds no language in Yearsley indicating that the Supreme Court intended to limit its holding to claims arising under state law. Additionally, the Supreme Court identified instances when government contractors were not immune from liability, and notably did not mention federal law claims. The test the Supreme Court outlined for conferring Yearsley immunity, therefore, omitted any requirement that the claim arise under state law and omitted any reference to exempting federal law liability from its reach. Yearsley's progeny have also failed to make any such distinction. Consequently, he holds that the Yearsley doctrine applies to claims arising under federal law. Next, the Judge disagrees with Cunningham's attack on the merits of the district court's decision by asserting that GDIT fails to satisfy either prong required under Yearsley. Because GDIT adhered to the terms of its contract with CMS, he concludes that the government authorized GDIT's actions, satisfying step one of the Yearsley analysis. And because the government authorized GDIT's actions and that authorization was validly conferred, he holds that the district court did not err in concluding that GDIT was entitled to derivative sovereign immunity for this claim. Finally, the Judge again disagrees with Cunningham's assertion that even if the district court properly conferred Yearsley immunity on GDIT, the district court nonetheless erred in treating the Yearsley doctrine as immunity from suit and dismissing the case for lack of subject matter jurisdiction, rather than treating the doctrine as a merits defense to liability. He says it is clear that if the basis for dismissing a Yearsley claim is sovereign immunity, then a Yearsley defense would be jurisdictional because sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction. The Judge holds that the district court did not err in treating Yearsley applicability as a jurisdictional bar to suit and granting GDIT's Rule 12(b)(1) motion to dismiss on the basis that GDIT is immune from suit under the Yearsley doctrine. For these reasons, Judge Floyd affirmed the judgment of the district court. A full-text copy of the Court's April 24, 2018 Opinion is available at https://is.gd/o39Vsy from Leagle.com. ARGUED: Aytan Yehoshua Bellin, BELLIN & ASSOCIATES LLC, White Plains, New York, for Appellant. James P. Rouhandeh -- rouhandeh@davispolk.com -- DAVIS, POLK & WARDWELL, LLP, New York, New York, for Appellee. ON BRIEF: Roger Furman, Los Angeles, California, for Appellant. Neil H. MacBride -- neil.macbride@davispolk.com -- Washington, D.C., Paul S. Mishkin -- paul.mishkin@davispolk.com -- DAVIS POLK & WARDWELL LLP, New York, New York; Attison L. Barnes, III -- abarnes@wileyrein.com -- Stephen J. Obermeier -- sobermeier@wileyrein.com -- WILEY REIN LLP, Washington, D.C., for Appellee. GFI GROUP: Summary Judgment in "Gross" Securities Suit Granted -------------------------------------------------------------- In the case, BENJAMIN GROSS, Individually and on Behalf of Others Similarly Situated, Plaintiffs, v. GFI GROUP, INC., et al., Defendants, Case No. 14cv9438 (S.D. N.Y.), Judge William H. Pauley, III, of the U.S. District Court for the Southern District of New York granted the Defendants' motion for summary judgment. Gross filed the action on behalf of a class of investors who sold GFI stock between July 30, 2014 and Sept. 9, 2014. At the time of the events giving rise to the lawsuit, GFI was a publicly traded company with two principal business units: (1) an inter- dealer broker ("IDB") business, which provided trading services; and (2) a software unit, which licensed financial software products. In early 2013, Jefferies, LLC advised GFI Executive Chairman Michael Gooch that GFI might be able to optimize shareholder value by selling itself to another inter-dealer broker. Gooch was also GFI's largest shareholder, owning approximately 38% of its outstanding shares. Jefferies estimated GFI's "sum-of-the- parts" value at $5.41/share, a 64% premium over GFI's current trading price. Gooch rejected Jefferies's advice, and expressed interest in selling only GFI's software business, while retaining the IDB business for himself. In an October 2013 Board meeting, Gooch recommended that GFI explore a potential sale of its software unit to CME Group. Under the terms of that proposal, CME would acquire GFI, after which a private consortium -- including Gooch and Heffron (GFI's Chief Executive Officer) -- would purchase back the IDB business from CME at a substantial discount. BGC Partners, another inter-dealer broker, had long expressed interest in purchasing GFI. Gooch rebuffed BGC's overtures and forged ahead with the proposed CME transaction. In October 2013, GFI and CME entered into a non-disclosure agreement. In January 2014, Gooch presented a proposed deal to the GFI Board. Under its terms, CME agreed to purchase all of GFI's outstanding stock for $4.55/share. On July 29, 2014, the special committee voted to recommend approval of the CME transaction. After Gooch and Heffron recused themselves, the remaining members of the Board unanimously voted to approve the CME transaction. On July 30, 2014, GFI and CME issued a joint Press Release announcing the proposed merger. The Press Release explained that CME would acquire GFI's software business and that GFI stockholders would receive $4.55/share. It described that following CME's acquisition, a private consortium of GFI management would acquire GFI's IDB business. The claims in the case stem from a single sentence on the second page of that Press Release, in which Gooch opined on the proposed CME transaction. Specifically, Gooch stated that optimizing GFI's value for stockholders has been a goal of management since becoming a public company in 2005 and the transaction represents a singular and unique opportunity to return value. The Press Release noted that the proposed transaction was subject to shareholder and regulatory approval, and that a registration statement with more information would be forthcoming. The Press Release noted that the transaction would likely not close until early 2015. On July 31, 2014, GFI and CME publicly filed the proposed merger agreement. The Merger Agreement stated that the deal would not close without approval of GFI's shareholders. On that same day, Gross sold 770 shares of GFI stock for $4.52/share. Undeterred, BGC purchased millions of GFI shares in the ensuing weeks as a prelude to making a competing bid. On Sept. 9, 2014, BGC announced that it would make an all-cash tender offer for GFI for $5.25/share. BGC simultaneously disclosed that it had acquired 13.5% of GFI's common stock. With the prospect of an all cash tender-offer, GFI's share price skyrocketed from $5.03/share to $6.02/share. Thereafter, BGC and CME traded escalating bids for GFI. In the midst of that bidding war, GFI released its Proxy Statement, which contained a 14-page description of the process and events leading up to the CME proposed transaction. In January 2015, the bidding culminated with BGC's cash offer of $6.10/share. On Jan. 30, 2015, GFI shareholders rejected the CME deal. GFI and CME terminated the proposed merger, and BGC completed its tender offer, obtaining a controlling interest in GFI. Gross represents a class of GFI investors who sold their stock after the July 30, 2014 Press Release, but before BGC announced its tender offer on Sept. 9, 2014. He claims that Gooch's statement misleadingly implied that the CME transaction was the best available deal for GFI, meaning that it represented the best opportunity for GFI shareholders to attain value. The Defendants move for summary judgment dismissing the securities class action. They argue that the Plaintiffs fail to establish triable issues of fact on falsity, scienter, reliance, and loss causation. Judge Pauley finds that the inevitable release of the Proxy Statement, which publicly provided the pros and cons of the CME transaction, as well as GFI's due diligence (or lack thereof) in approving it, demonstrates that shareholders and analysts had all confounding information to Gooch's statement prior to voting. Accordingly, there was no opportunity to foist Gooch's preferred deal on shareholders. Even if Gooch's statement was misleading, a short respite from an inevitable day of reckoning" does not demonstrate scienter. Scienter can also be shown through conscious misbehavior or recklessness. But even under this standard, the Judge says a plaintiff must establish that a material benefit could have been obtained through the misstatement. Accordingly, the Judge finds that the Plaintiffs' claim of scienter under the conscious misbehavior or recklessness test fails for the same reason -- the Proxy Statement demonstrates that any fraudulent scheme was doomed to fail. The Judge also finds that there is sufficient evidence of materiality to withstand summary judgment. Typically, he says loss causation is demonstrated through a corrective disclosure that reveals the falsity of previous information. But it may also be shown by the materialization of risk method, whereby a concealed risk comes to light in a series of revealing events that negatively affect stock price over time. Irrespective of the Plaintiffs' theory (corrective disclosure or materialization of the risk), a jury would not be able to disaggregate that portion of the increase in GFI's share price attributable to a correction of Gooch's statement from that portion of the increase attributable to the other information simultaneously disclosed to the market. Finally, because the Plaintiffs fail to establish a primary violation of the federal securities laws, summary judgment on their control person liability claimsis equally warranted. For these reasons, Judge Pauley granted the Defendants' motion for summary judgment. He directed the Clerk of Court to terminate all pending motions and mark the case as closed. A full-text copy of the Court's April 20, 2018 Opinion and Order is available at https://is.gd/JmcVtd from Leagle.com. Benjamin Gross, individually and on behalf of all others similarly situated, Lead Plaintiff, represented by David R. Scott -- david.scott@scott-scott.com -- Scott and Scott LLP, pro hac vice, Jack I. Zwick, Jack I Zwick -- jack@zwickfirm.com -- Joseph Peter Guglielmo -- jguglielmo@scott-scott.com -- Scott + Scott, L.L.P., Stephen J. Teti -- steti@scott-scott.com -- ScottScott, Attorneys At Law, LLP & Jonathan M. Rotter -- jrotter@glancylaw.com -- Glancy Prongay & Murray LLP. GFI Group, Inc., Defendant, represented by John F. Lynch -- JLynch@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Paul K. Rowe, Wachtell, Lipton, Rosen & Katz, Warren R. Stern -- WRStern@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Joshua Jeffrey Card -- JJCard@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Michael Steven Popok, Cantor Fitzgerald & Nirav Sanjay Shah, Cantor Fitzgerald. Colin Heffron & Michael Gooch, Defendants, represented by Christopher Daniel Kercher -- christopherkercher@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan LLP. GOLD STANDARD: Court Narrows Claims in Racial Discrimination Suit ----------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Defendant's Motion to Dismiss the case captioned JAMES ZOLLICOFFER, ANTWOIN HUNT, and NORMAN GREEN, on behalf of themselves and similarly situated laborers, Plaintiffs, v. GOLD STANDARD BAKING, INC., PERSONNEL STAFFING GROUP, LLC d/b/a MOST VALUABLE PERSONNEL d/b/a MVP, Defendants, No. 13 C 1524 (N.D. Ill.). Plaintiffs James Zollicoffer, Antwoin Hunt, and Norman Green, individually and on behalf of other similarly situated job applicants, filed a sixth amended complaint (6AC) against Defendants Gold Standard Baking, Inc. (GSB) and Personnel Staffing Group, LLC, doing business as Most Valuable Personnel (MVP), alleging race discrimination in violation of Title VII and 42 U.S.C. Section 1981. The Defendants jointly move to dismiss counts III through VI on the basis that the Plaintiffs have not exhausted their administrative remedies and so cannot bring a claim under Title VII. GSB further brings a motion to dismiss counts I and II on the basis that the Plaintiffs have not alleged a contractual relationship with them, which the Defendants argue is necessary to maintain a claim under 42 U.S.C. Section 1981. Defendants' Joint Motions to Dismiss Counts III- VI and Deny Class Certification The Defendants argue that the Plaintiffs' failure to bring EEOC charges related to their claims in the 6AC is fatal to their Title VII claims. They are correct. To bring a Title VII suit, a plaintiff must have filed a timely Equal Employment Opportunity Commission (EEOC) charge and received a right to sue letter. However, certain exceptions to this rule exist: known as the single-filing rule or piggybacking, parties who have not filed charges with the EEOC may join as co- plaintiffs or as class members in a civil action with plaintiffs who have filed EEOC charges. Plaintiffs who have not timely filed a charge can rely on the timely charge of another plaintiff in a class action. Once a Title VII class action is up and running the class members are not required to inundate the EEOC with what amount to meaningless requests for right to sue letters. There are limits to the single-filing rule: where the court determines that the original plaintiff is an inadequate class representative, another individual seeking to intervene as plaintiff cannot piggyback off of the original plaintiff's EEOC charge. Here, rather than using the EEOC charges of a co-plaintiff to satisfy their administrative exhaustion requirements, the Plaintiffs argue that they should be able to use the EEOC charges of former named plaintiffs, now putative class members, who would still be properly involved as named plaintiffs had personal reasons not intervened. The Seventh Circuit has not yet addressed this specific question. The Plaintiffs attempt to distinguish Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1158 (7th Cir. 1999), and Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1246 (7th Cir. 1983), as situations where the original named plaintiffs were no longer members of the putative class. In Robinson, the district court found that the original named plaintiff was not suitable as a class representative prior to class certification, and the new plaintiff who wanted to replace the original had not filed an EEOC charge. In Wakeen, the district court found that the original named plaintiff's claims had no merit, and another plaintiff sought to intervene, even though the new plaintiff had not filed an EEOC charge. However, no Seventh Circuit case law supports the idea that a putative class member's EEOC charge obviates the need for a named plaintiff to have exhausted his or her administrative remedies. The Plaintiffs contend that the Seventh Circuit supported this in Romasanta v. United Airlines, 537 F.2d 915, 917 (7th Cir. 1976), but that decision is easily distinguishable. In Romasanta, the district court did not allow the case to proceed as a class action, although the original named plaintiffs ultimately received settlements for their claims. For obvious reasons, those plaintiffs decided not to appeal the adverse class determination, and the Seventh Circuit allowed another individual from the class to intervene, despite the fact that this new individual had not filed the prerequisite EEOC charge. In so ruling, the appellate court was concerned that refusing class members the opportunity to appeal in this situation would permit one member of the class to obtain benefits greater than other members. However, as in Wakeen, here the original plaintiffs did not abdicate at a point where the suit had gone far enough to affect the rights of other class members. At this motion to dismiss stage, where the Court has yet to make any class determinations, there is not the same concern for equality among potential class members, nor is there a risk that the named plaintiffs will be able to capitalize on this ruling for better treatment than the other putative class members. GSB's Motion to Dismiss Counts I and II GSB brings a separate motion to dismiss the Plaintiffs' claims pursuant to 42 U.S.C. Section 1981, arguing that the fact that a client company acts as a joint employer with a staffing agency does not sufficiently establish a contractual relationship between the client company and the plaintiff employee to establish a claim under Section 1981. Section 1981 provides that all persons have the same right to make and enforce contracts, which includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. GSB incorrectly focuses on the party on the other end of the Plaintiffs' potential contract. The Plaintiffs do not need to allege that GSB interfered with the creation of a contract between Plaintiffs and GSB. To satisfy the requirements of Section 1981, the contractual relationship involved need not be between the plaintiff and the defendant, it may rest on discriminatory interference by the defendant with the plaintiff's contractual relationship or attempt to create a contractual relationship with a third party. The Seventh Circuit has clearly established that a third party's interference with a contract can support civil rights claims under Section 1981. Here, the Plaintiffs have sufficiently pleaded that GSB interfered with their enjoyment of the benefits and privileges of a potential contract with MVP when GSB sought to limit the Plaintiffs' job opportunities through MVP. The Plaintiffs have also sufficiently pleaded that GSB interfered with a potential contract with GSB when GSB prevented the formation of at-will employment with GSB by directing MVP not to send the Plaintiffs to GSB. But what matters here is that the Plaintiffs have clearly and unambiguously alleged that GSB interfered with the Plaintiffs' formation of a contract, and that is sufficient to maintain a claim under Section 1981. Accordingly, the Court grants the Defendants' motion to dismiss counts III through VI of the Sixth Amended Complaint and strikes the class allegations related to those counts, but denies GSB's motion to dismiss counts I and II. The Court dismisses counts III through VI and the class allegations related to the Title VII claims with prejudice. A full-text copy of the District Court's April 23, 2018 Opinion and Order is available at https://tinyurl.com/yck7fme9 from Leagle.com. Norman Green, on behalf of themselves and similarly situated laborers, Plaintiff, represented by Miriam Rose Nemeth -- mnemeth@cohenmilstein.com -- Cohen Milstein Sellers & Toll, Pllc & Christopher J. Williams, Workers' Law Office. Antwoin Hunt & James Zollicoffer, Plaintiffs, represented by Christopher J. Williams, Workers' Law Office, PC. Gold Standard Baking, Inc., Defendant, represented by Blake T. Hannafan, Hannafan & Hannafan Ltd., Clifford Raymond Perry, III - - cperry@lanermuchin.com -- Laner Muchin, Ltd., James J. Convery -- jconvery@lanermuchin.com -- Laner Muchin, Ltd. & Peter James Gillespie -- pgillespie@lanermuchin.com -- Laner Muchin, Ltd. Personnel Staffing Group, LLC, doing business as, Defendant, represented by Carter A. Korey -- ckorey@koreyrichardsonlaw.com - - Korey Richardson LLC, Elliot S. Richardson erichardson@koreyrichardsonlaw.com -- Korey Richardson LLC, Navdeep Kaur Gill, Alex J. Maturi, Paul Hastings Llp, Amy Jo Hoffman, Korey Richardson Llc, Ashley M. Vanpool, Korey Richardson Llc, Daniel J. Stoller -- dstoller@koreyrichardsonlaw.com -- Korey Richardson Llc, Emily Lora Mallor -- ckorey@koreyrichardsonlaw.com -- KOREY RICHARDSON LLC, Kenneth W. Gage -- kennethgage@paulhastings.com -Paul Hastings LLP, Michele Denise Dougherty, Korey Richardson LLC, Peter James Gillespie -- pgillespie@lanermuchin.com -- Laner Muchin, Ltd. & Ryan D Gibson, Korey Cotter Heather & Richardson, LlC. Working Hands Legal Clinic, Chicago Workers' Collaborative, South Austin Coalition Community Council & Elce Redmond, Movants, represented by Michael Paul Persoon -- mpersoon@dsgchicago.com -- Despres Schwartz & Geoghegan. GOOGLE INC: Simpson Thacher Attorneys Discuss Cy Press Settlement ----------------------------------------------------------------- Joseph M. McLaughlin, Esq. -- jmclaughlin@stblaw.com -- and Shannon K. McGovern, Esq., of Simpson Thacher & Bartlett, in an article for Law.com, report that when a class action settles, a potential "cy pres" distribution may come into play where direct distribution of all or part of the settlement consideration to class members is infeasible. For decades, district courts have exercised discretion to determine that direct distribution is infeasible either because class members cannot be identified, or because the settlement fund would yield a negligible payment to individual class members (or be consumed by the administrative costs of distribution). Cy pres settlements have grown into a limited but important feature of the class action settlement landscape without Supreme Court guidance. The high court recently granted certiorari, however, to decide the propriety and potential limits of cy pres settlements. Frank v. Gaos, 2018 WL 324121 (U.S. April 30, 2018). Background The cy pres ("as near as") doctrine is an equitable rule of construction with roots in the Middle Ages. Historically, the doctrine applied where a settlor's original purpose for a trust cannot be implemented because, for instance, the intended recipient no longer exists or the purpose of the trust has been accomplished. A balance of a settlement fund often remains unclaimed after distributions to identifiable class members are complete and it is not feasible or cost-effective to make further distributions to the class. Since the 1970s, courts have used a variant of the cy pres doctrine to distribute a portion of class action settlement funds to third party charitable organizations, often selected by or in consultation with the parties' counsel. More rarely (and recently), courts have approved "cy-pres only" settlements in which no class members receive any compensation: The sole recipients of net settlement funds, after deduction of attorney fees, are third-party nonprofits that seek to promote the same interests as those underlying those of the proposed settlement class. The federal circuits currently require that district court approval of a cy pres distribution include a specific finding that a close nexus exists between the work of any cy pres recipient and the interests pursued by the class in the relevant action. See Dennis v. Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012); In re Airline Ticket Com'n Antitrust Litig., 307 F.3d 679, 683 (8th Cir. 2002). Google Privacy Litigation On April 30, 2018, the Supreme Court granted a petition for certiorari to address whether "cy pres-only settlements" comply with the requirement in Rule 23(e) of the Federal Rules that any settlement that binds class members must be "fair, reasonable, and adequate." In re Google Referrer Header Privacy Litigation involves an $8.5 million settlement of privacy litigation against Google for disclosing search queries made by users of its search engine to third-party websites via the use of "referrer headers" embedded in URLs. The parties estimated that the class contains 129 million members. After deduction of attorney fees and expenses, the $5.3 million net settlement fund is to be distributed to six nonprofit recipients, including the AARP, academic institutions and research groups, to fund education and/or research relating to Internet privacy. A U.S. Court of Appeals for the Ninth Circuit panel affirmed the district court's approval of the settlement as fair and adequate. One judge concurred and dissented in part, arguing the court should have vacated and remanded for development of a fuller record on the relationships between class counsel and the cy pres recipients, half of which are the alma maters of class counsel. See In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017). The majority and dissent agreed, however, that a cy pres-only settlement was appropriate because settlement funds were effectively "non-distributable" where the recovery for each class member would be four cents. The Ninth Circuit rejected the arguments by objectors that the settlement could be structured to compensate at least some class members through lottery or by awarding a few dollars to each of the fraction of class members who could be expected to submit a valid proof of claim. The court also "easily rejected" the argument that a class action was not the superior method of adjudication, as required by Rule 23(b)(3), where the result is a non-distributable settlement. The court also concluded that objectors failed to "'raise substantial questions about whether the selection of the recipient[s] was made on the merits'" of the recipients. Sixteen state attorneys general filed an amicus brief urging the Supreme Court to grant objectors' certiorari petition, arguing that the Google case presents the "ideal vehicle" to address the fairness of cy pres settlements. In 2013, Chief Justice John Roberts all but invited a cy pres test case, noting "fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered" and "how to assess its fairness as a general matter." Marek v. Lane, 571 U.S. 1003 (2013). Marek too involved a cy pres-only settlement of a large Internet privacy class action in the Ninth Circuit. Facebook agreed to fund a new entity led by a board that would contain one of its own employees. In denying the objectors' petition for certiorari, the Justice Roberts noted that the court would not review, as requested, the "particular features" on the settlement, including its amount and the alleged conflicts of interest presented by Facebook's involvement in the cy pres remedy. The Google case will necessitate the Supreme Court tackling head- on the evolving jurisprudence on cy pres settlements. The U.S. Court of Appeals for the Seventh Circuit has memorably asserted that the "cy pres" settlement is "badly misnamed." Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 784 (7th Cir. 2004). While the historical use of cy pres provided an indirect benefit to a trust settlor by putting trust funds to uses very similar to those intended, "[t]here is no indirect benefit to the class from the defendant's giving the money to someone else." Id. at 784. Thus characterized, cy pres-only settlements may punish the defendant and deter further misconduct, but arguably do not compensate class members. In opposing certiorari, Google argued that cy pres-only settlements are increasingly rare, particularly in light of the Justice Robert's comments in Marek. But Google nonetheless presents the court's first opportunity to address the baseline assumption of all cy pre settlements: that some or all of the settlement fund may properly be diverted away from class members to court-approved third parties where it is not feasible to compensate the class directly. In the Ninth Circuit's view, a class action settlement is "non-distributable" when "the proof of individual claims would be burdensome or distribution of damages costly." Nachshin v. AOL, 663 F.3d 1034, 1038 (9th Cir. 2011). In practice, some portion of a settlement of any very large class action -- including those common in Internet privacy cases -- will be "non-distributable." In Google, the Ninth Circuit quickly dispensed with the objectors' argument that if the settlement fund could not be distributed, then the settlement class failed to meet the superiority requirement of Rule 23. The objectors argued in their certiorari petition that cy pres-only settlements are categorically inadequate because they entail release of class members' claims in exchange for no direct benefit to class members while class counsel secure an attorney fee award. The court also will likely need to assess the extent to which lower courts and counsel can navigate class counsel's potential conflict of interest in recommending a settlement that awards attorney fees but provides no direct consideration to class members. The proponents of cy pres settlements will likely argue that such settlements are fair and adequate when a court determines that the charitable distribution in fact benefits class members by promoting the interests underlying the suit. Moreover, cy pres facilitates settlement of low value claims for which defendants might otherwise have avoided any payment at all because of the infeasibility of direct payment to class members. Conclusion The Supreme Court may more closely scrutinize certification of a class of over a hundred million people where none will be compensated. Two decades ago, in Amchem Products v. Windsor, the court rejected the certification of a class for settlement purposes of "hundreds of thousands, perhaps millions" of asbestos tort claimants, cautioning against "class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness." 521 U.S. 591, 621 (1997). In other words, a class may be certified, for settlement purposes or otherwise, only if each requirement of Rule 23 is met. The conclusion that a settlement fund is "non-distributable" ordinarily has much to do with the relationship between the strength of the claim and the negotiated settlement amount. Class counsel has every incentive to bargain for the largest settlement obtainable, but if the claim is vulnerable a modest settlement fund is better than none. If the paramount settlement objective of compensating class members directly is unattainable given the dynamics, a cy pres-only recovery should be within the permissible range of a fair and adequate settlement. In addition, a number of intermediate alternatives short of rejecting cy pres settlements may be available under the applicable abuse of discretion standard, focusing on the meaning of "infeasible to distribute." For example, several courts have approved cy pres distributions but barred its use where it is possible to compensate at least some class members. See, e.g., In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060, 1064 (8th Cir. 2015) ("Because the settlement funds are the property of the class, a cy pres distribution to a third party of unclaimed settlement funds is permissible 'only when it is not feasible to make further distributions to class members' . . . except where an additional distribution would provide a windfall to class members with liquidated-damages claims that were 100 percent satisfied by the initial distribution.") (citations omitted). This approach would leave the door open to approval of the flexible use of cy pres doctrine where good faith mechanisms are in place to distribute settlement consideration to the extent practicable. [GN] GUESS? RETAIL: "Miranda" Suit Seeks Unpaid Wages, Penalties ----------------------------------------------------------- Francisco Miranda, Jr., an individual, and on behalf of others similarly situated, Plaintiff, v. Guess? Retail, Inc. and Does 1 through 50, inclusive, Defendants, Case No. BC702270 (Cal. Super., May 1, 2018), seeks unpaid overtime wages and interest thereon, redress for failure to authorize or permit required meal periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, reimbursement of business-related expenses, failure to maintain time-keeping records, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code and applicable Industrial Wage Orders. Guess? Retail operates a clothing store where Miranda used to work. [BN] Plaintiff is represented by: Matthew J. Matern, Esq. Mikael H. Stahle, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 Email: mmatern@maternlawgroup.com mstahle@maternlawgroup.com H MART MIDWEST: Fails to Pay OT to Purchasers, "Lee" Suit Alleges ----------------------------------------------------------------- Bum Hoon Lee, individually and on behalf of all others similarly situated, Plaintiff v. H Mart Midwest Corp., H Mart Glenview, LLC, H Mart Chicago, LLC, H Mart Champaign, LLC, BK Schaumburg, Inc., Brian Kwon, Ilyeon Kwon and Hye Joo Choi, Defendants, Case No. 1:18-cv-03593 (N.D. Ill., May 21, 2018) is an action against the Defendants for failure to pay minimum and overtime wages. The Plaintiff Lee was employed by the Defendants as purchaser from April 20, 2015 to December 10, 2017. H Mart Midwest Corp. was founded in 2006. The Company's line of business includes the retail sale of used merchandise, antiques, and second hand goods. [BN] The Plaintiff is represented by: Ryan J. Kim, Esq. INSEED LAW, P.C. 2454 E Dempster St Suite 301 Des Plaines, IL 60016 HERTZ LOCAL: Court Grants Discovery Stipulation in "Johnston" ------------------------------------------------------------- The United States District Court for the Eastern District of California granted Parties' Stipulation Regarding Discovery in the case captioned EMY JOHNSTON, on behalf of herself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, Plaintiff(s), v. HERTZ LOCAL EDITION CORP., a Delaware corporation; and DOES 1 through 50, inclusive, Defendant(s), Case No. 2:17-cv-01966-JAM-EFB (E.D. Cal.). Emy Johnston, on behalf of herself and others similarly situated and the allegedly aggrieved employees under the Labor Code Private Attorneys General Act of 2004, seeks unpaid overtime wages and other relief against Defendant Hertz Local Edition Corp. for alleged violations of the California Labor Code and other unlawful business practices alleged in the complaint. The parties met and conferred about the information sought and agreed to a method balancing the Plaintiff's need for the information and the privacy rights of the Defendant's employees. The parties stipulated, and the Court approves, that: If a Putative Class Member does not want his/her full name, address, e-mail addresses, or telephone number to be provided to Plaintiff, he/she must (1) sign and return a postcard substantially the sa2 me as that attached as Exhibit B or (2) respond by e-mail with the information contained in Exhibit B to the Administrator within thirty (30) calendar days after the mailing of Exhibit A. Plaintiff shall keep any information discovered by this process confidential, shall use such information only for purposes of this litigation, and shall return the information to Defendant or certify its destruction (including all copies) at the end of this litigation. A full-text copy of the District Court's April 23, 2018 Order is available at https://tinyurl.com/ycrv32ny from Leagle.com. Emy Johnston, Plaintiff, represented by David Glenn Spivak -- david@spivaklaw.com -- The Spivak Law Firm. Hertz Local Edition Corporation, Defendant, represented by Daniel Valles -- dvalles@nixonpeabody.com -- Nixon Peabody LLP & Robert A. Dolinko -- rdolinko@nixonpeabody.com -- Nixon Peabody LLP. HYDRO-QUEBEC: Osler Hoskin Attorneys Discuss Class Action Ruling ---------------------------------------------------------------- Sylvain Lussier, Esq. -- slussier@osler.com -- and Frederic Plamondon, Esq. -- fplamondon@osler.com -- of Osler Hoskin & Harcourt LLP, in an article for Lexology, wrote that it is not every day in a class action that the Superior Court renders a decision on the merits of the case. Yet, not only is this the situation in Charland v. Hydro-Quebec, the Superior Court also includes scathing criticisms against the plaintiff. On May 29, 2018, Justice Steve J. Reimnitz dismissed the class action in which the plaintiff was claiming from the defendant, Hydro-Quebec, the refund of "administration fees," which she had qualified as "interest" to be paid in addition to the 5% rate provided in the Interest Act (the IA). In support of her claims, the plaintiff unsuccessfully submitted to the Court numerous arguments. In regard to the nature of the "administration fees," the Court decided in favour of the defendant by stating that these fees could not be considered as interest. In particular, the legislator adopted this consumer protection law in order to force the lender to reveal the annual rate contracted by the borrower. This case cannot be classified as a borrower/lender situation, and the plaintiff cannot further find herself in such a situation since her relationship with Hydro-Quebec is regulated. The judge was careful in specifying that the interpretation suggested by the plaintiff has nothing to do with the intent of the legislator at the time that the IA was adopted. In fact, this interpretation does not account in any way for the particular context imposed by a regulated contract of a mandatory nature applicable to the defendant. For this sole reason, the Court dismissed the class action. The judge, in obiter, also rendered a decision on all other arguments raised by the plaintiff and formulated several criticisms against her. For example, while the plaintiff was raising the issue of Hydro-Quebec's failure to inform, given the difficulty in obtaining the true information on the rate of paid "administration fees," the judge noted the absence of prejudice and the failure to respect the obligation to inform oneself. In particular, administration fees billed by Hydro-Quebec were lower than the rate authorized by the Regie de l'energie. The judge also criticized the plaintiff for being the author of her own misfortune. In fact, the plaintiff willfully omitted to pay her bills so that she would be billed for administration fees, "[translation] so as to artificially create a prejudice that she alleges having suffered, and thus, with the goal of fabricating the class action submitted before the Court." The last remark should incite our courts to scrutinize more carefully certain class actions that demonstrate, from the authorization stage, an aspect that is artificial and concocted. [GN] I.Q. DATA: Made Unsolicited Calls, "Ward" Suit Alleges ------------------------------------------------------ RANDY WARD and KURT WARD, individually and on behalf of all others similarly situated, Plaintiffs v. I.Q. DATA INTERNATIONAL, INC. d/b/a RENT COLLECT GLOBAL, Defendant, Case No. 5:18-cv- 01083-JFW-AS (C.D. Cal., May 21, 2018) is an action against the Defendant for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendant in negligently and intentionally contacting the Plaintiffs' respective cellular telephones, in violation of the Telephone Consumer Protection Act. I.Q. Data International, Inc. d/b/a Rent Collect Global is corporation organized and existing under the laws of the State of Washington. The Company specialized in third party debt collection for the property management industry. [BN] The Plaintiff is represented by: Abbas Kazerounian, Esq. Mona Amini, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com mona@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com INDIANA: Ct. Won't Approve Settlement in Inmates' HCV Suit ---------------------------------------------------------- The United States District Court for Southern District of Indiana, Indianapolis Division, denied Plaintiffs' Motion for Approval of a Proposed Settlement Agreement in the case captioned MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH, Plaintiffs, v. ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., WEXFORD OF INDIANA, LLC, Defendants, No. 1:17-cv-00289-JMS- MJD (S.D. Ind.). This matter concerns a class action lawsuit brought by inmates of Indiana Department of Corrections (IDOC) facilities regarding the provision of medical care to treat the chronic Hepatitis C virus (HCV). Here, exercising that duty of vigilance, the Court concludes that the proposed settlement does not meet the standard of being fair, reasonable, and adequate. The parties stress that the Settlement Agreement is confidential, so the Court avoids reciting in detail its specific provisions. For example, it asks members of the class to agree to an extremely wide-ranging release and discharge of claims, including those having nothing to do with the subject matter of this lawsuit. Without further information or assurances regarding the propriety of these releases, the Court cannot conclude that the Agreement is either fair or reasonable. The Court denies the Defendants' Motion for Preliminary Approval of Class Settlement. A full-text copy of the District Court's April 23, 2018 Order is available at https://tinyurl.com/y9alv3g9 from Leagle.com. MICHAEL RAY STAFFORD, CHARLES SMITH & DOUGLAS SMITH, Plaintiffs, represented by Mark W. Sniderman, SNIDERMAN NGUYEN LLP, & Robert A. Katz -- rokatz@iupui.edu -- INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW, pro hac vice. ROBERT E. CARTER, JR. & MONICA GIPSON, R.N., Defendants, represented by Aleksandrina Penkova Pratt, INDIANA ATTORNEY GENERAL, Benjamin Myron Lane Jones, INDIANA ATTORNEY GENERAL, Jonathan Paul Nagy, INDIANA ATTORNEY GENERAL & Kelly Suzanne Thompson, INDIANA ATTORNEY GENERAL. MICHAEL MITCHEFF, M.D., Defendant, represented by Aleksandrina Penkova Pratt, INDIANA ATTORNEY GENERAL, Benjamin Myron Lane Jones, INDIANA ATTORNEY GENERAL, Douglass R. Bitner, KATZ KORIN CUNNINGHAM, P.C., Jonathan Paul Nagy, INDIANA ATTORNEY GENERAL & Kelly Suzanne Thompson, INDIANA ATTORNEY GENERAL. WEXFORD OF INDIANA, LLC, Defendant, represented by Douglass R. Bitner, KATZ KORIN CUNNINGHAM, P.C. & Jarrod Alvin Malone, KATZ KORIN CUNNINGHAM, P.C.. INTEL CORP: "East" CPU Defect Row Transferred to Oregon Dist. Ct. ----------------------------------------------------------------- The case captioned Andrew East, on behalf of themselves and all others similarly situated, Plaintiffs, v. Intel Corporation, Defendant, Case No. 18-cv-01733, (N.D. Cal., March 20, 2018), was transferred to the U.S. District Court for the District of Oregon on May 2, 2018 under Case No. 18-cv-00757. Plaintiff seeks all proper measures of monetary relief and damages, plus interest, equitable, injunctive and declaratory relief including restitution and disgorgement, costs of suit, including reasonable attorneys' fees and expenses and such further relief resulting from negligence, unjust enrichment and breach of implied warranty, violation of California's Unfair Competition Law and Consumers Legal Remedies Act. Intel manufactures the central processing units (CPU) that power most servers, laptops, desktop computers, tablets, smartphones, and other computing devices. Said CPUs suffer from several defects that allow hackers to access to what was supposed to be secure data, notes the complaint. These Defects cannot be fixed remotely via a software update while any mitigation efforts would seriously affect CPU performance. East purchased a PowerSpec G151 PC from Micro Center in May 2016. It is powered by a Intel Core i5-7500. [BN] Plaintiff is represented by: Joshua Haakon Watson, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION 865 Howe Avenue Sacramento, CA 95825 Tel: (916) 924-3100 Fax: (916) 924-1829 Email: jwatson@justice4you.com Intel Corporation is represented by: Miriam Kim, Esq. Allison Marie Day, Esq. MUNGER, TOLLES & OLSON 560 Mission Street, 27th Floor San Francisco, CA 94105 Tel: (415) 512-4041, 512-4079 Fax: (415) 512-4077 Email: Miriam.Kim@mto.com allison.day@mto.com INTER-COAST INT'L: Denial of Arbitration Bid in "Nguyen" Affirmed ----------------------------------------------------------------- In the case, ANTHONY NGUYEN et al., Plaintiffs and Respondents, v. INTER-COAST INTERNATIONAL TRAINING, INC., Defendant and Appellant, Case No. B270305 (Cal. App.), Judge Audrey B. Collins of the Court of Appeals of California for the Second District, Division Four, affirmed the trial court denial of Inter-Coast's motion to compel arbitration. Plaintiff and Respondent Nguyen filed a class action lawsuit against his former employer, Defendant and Appellant Inter-Coast, on May 13, 2011. He alleged various wage and hour claims on behalf of himself and other current and former Inter-Coast employees. He sought to establish a class of all non-exempt employees Inter-Coast employed during the previous four years. At the time the suit was filed, neither Nguyen nor any of the putative class members had signed arbitration agreements with Inter-Coast. Inter-Coast subsequently revised its employee handbook to add an arbitration provision, which many potential members of the class signed during the pendency of the suit. After the court certified the class, Inter-Coast filed a motion to compel arbitration of the claims of the class members who signed the arbitration provision. The Plaintiffs -- Nguyen, later-added named Plaintiff Cheryl Alexander, and the rest of the class -- opposed the motion, arguing that the arbitration provision was procedurally and substantively unconscionable. The trial court agreed with the Plaintiffs and denied the motion to compel. It concluded that Inter-Coast met its burden of showing the existence of arbitration agreements that covered the claims at issue in the class action. It also concluded that the Plaintiffs met their burden of proving their asserted defense of unconscionability. Inter-Coast appealed, contending that the Plaintiffs failed to prove both procedural and substantive unconscionability. As to the former, Inter-Coast argues that the Plaintiffs failed to submit any evidence that any employee's signature to the 180 Agreements was in any way procedurally defective, aside from two self-serving Declarations from two former employees. Thus, Inter- Coast asserts, the trial court misunderstood or misread the arbitration clause itself. Judge Collins disagrees. She holds that procedural unconscionability focuses on contract formation and requires oppression or surprise. Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form. Substantial evidence of both oppression and surprise is present in the record. The nature of the provision, and the circumstances under which employees signed it, support the trial court's finding of procedural unconscionability. The Judge further concludes that the trial court made the correct determination. She says there is no dispute that Inter-Coast did not apprise the employees at the time of signing these agreements that their rights in the class action could be affected thereby. Inter-Coast points to opt-out agreements that some employees signed later as confirming the validity of their earlier signed Arbitration Agreements, but the question before for the trial court was whether the agreement was unconscionable at the time it was signed, not in hindsight. Substantial evidence supported the trial court's finding that the language of the provision and the circumstances under which it was presented to putative class members rendered it unfair, one-sided, and substantively unconscionable. She concludes the arbitration provision is significantly unconscionable, both procedurally and substantively. Accordingly, the trial court properly denied Inter-Coast's motion to compel arbitration. She affirmed the order. The Respondents are entitled to their costs on appeal. A full-text copy of the Court's April 20, 2018 Opinion is available at https://is.gd/KP5S81 from Leagle.com. Neil C. Evans for Defendant and Appellant. Aequitas Legal Group, Ronald H. Bae and Olivia D. Scharrer for Plaintiffs and Respondents. INVENTION SUBMISSION: Calhoun Sues over Promotion Services ---------------------------------------------------------- Etta Calhoun, individually and on behalf of all others similarly situated, Plaintiff v. Invention Submission Corporation d/b/a InventHelp; Technosystems Consolidated Corp.; Technosystems Service Corp.; Western Invention Submission Corp.; Universal Payment Corporation; Intromark Incorporated; Innovation Credit Corp.; Robert J. Susa; Thomas Frost, P.A.; Above Board Drafting, Inc.; John Doe Companies 1-10; John Doe Individuals 1-10, Defendants, Case No. 2:18-cv-02307-JS (E.D. Pa., June 1, 2018), alleges that the Defendants conducted a deceptive and fraudulent invention promotion scam that has bilked thousands of aspiring inventors and entrepreneurs into paying millions of dollars to Defendants for invention promotion services that Defendants do not, and never intend to, provide. The complaint alleges that all "efforts" made on the Plaintiff's behalf by the Defendants in order to help her "commercialize her invention" are lies and scams. The Defendants, contrary to their written and verbal representations, have no meaningful interest or investment in fulfilling their contractual promises; rather, their business model is based upon receipt of Submission Service fees, and nothing more. Invention Submission Corporation d/b/a InventHelp is a Pennsylvania corporation doing business at Pittsburgh, Pennsylvania. [BN] The Plaintiff is represented by: Richard A. Levan Esq. Jon-Jorge Aras, Esq. LEVAN LEGAL LLC Two Bala Plaza, Suite 300 Bala Cynwyd, PA 19004 Telephone: (610) 688-7781 - and - Julie Pechersky Plitt, Esq. Marc S. Oxman, Esq. OXMAN LAW GROUP, PLLC 120 Bloomingdale Road White Plains, NY 10605 Telephone: (914) 422-3900 ISRAEL: May Have to Reverse Speed Traffic Camera Tickets -------------------------------------------------------- Dubi Ben-Gedalyahu, writing for Globes, reports that tickets totaling hundreds of millions of shekels are liable to be reversed if a test of the Gatso A3 high-speed camera system shows it is unreliable. The state is exposed to lawsuits totaling hundreds of millions of shekels if it is proved that the high-speed cameras on Israel's roads are unreliable, a leading traffic law specialist has told "Globes." Last night, Israel's Channel 2 news reported that Israel Police had stopped issuing tickets from all speed cameras around the country after the Technion, Institute of Technology cast doubts on the accuracy of the cameras. As reported by "Globes" in January 2018, fines for traffic violations generated NIS 900 million for the state treasury in 2012-2016, not including parking violations. Speeding violations averaged 16% of the tickets issued, but in financial terms their proportion of the total amount collected is far greater; they accounted for 60-70% of state revenues from traffic fines during those years. These cameras also generated tens of thousands of tickets for crossing intersections on a red light. It is believed that the flow of revenue from fines grew substantially in 2017 because the Knesset raised the ceiling for fines for speeding imposed without a trial to NIS 1,500 after the enforcement speed threshold was lowered. The direct fines, however, are only part of the damages for which the state is liable to be sued. It is believed that tens of thousands of driving licenses were invalidated, some for prolonged periods, during the years during which the A3 system with nearly 120 active cameras was in operation. The state is liable to be sued for damages incurred by these invalidations through both individual and class action lawsuits. It was reported on June 10 that Israel Police had stopped issuing traffic tickets for speeding detected by A3 speed cameras based on the Gatso company's systems pending a test of the cameras' reliability. The deputy state attorney issued the order for the suspension and the test. The Israel Police traffic department announced that the stationary cameras would continue documenting speed violations, while the decision about actual enforcement would be taken after the test is completed. The deputy state attorney's order was preceded by a two year-old test case in the Akko Magistrates Court conducted by Advocate Tomer Gonen, a Haifa lawyer, representing 20 drivers who received tickets from the system. During the trial, serious doubts were raised about the process for testing the cameras' reliability. The police nevertheless stepped up the pace of issuing traffic tickets using the system, among other things by lowering the speed threshold for issuing tickets. The State Comptroller published a severely critical report in February 2016 about the use and operation of the A3 system. The report stated that the high-speed cameras project was replete with organizational and value failures affecting almost every aspect of its construction and operation. The State Comptroller examined the project, in the which the state invested over NIS 100 million. The examination, which was completed in early 2015, included the tender stages, construction, and operation of the system. The report stated that the State Comptroller's Office took a grave view of the systematic failure in effective operation of the array of cameras, and also regarded "with extremely gravity the order for 40 more cameras at an additional cost of NIS 4.8 million in annual spending on operating the A3 project even before the police solved the failures in operating the first cameras installed." What will happen if the A3 system of cameras is legally declared unreliable? If you have received a speeding ticket photographed by the A3 system of cameras, you still do not have grounds for demanding compensation or cancelation of your speeding points. It is believed that the state will do all it can to retroactively declare the cameras valid in order to avoid opening a Pandora's box of lawsuits for already issued tickets. Furthermore, the ticket-producing machine is still operating in full force with an option to issue them when the test is concluded. A theoretical scenario, however, in which the District Court, or even the High Court of Justice, invalidates the reliability of the system's speeding tickets cannot be ruled out. What happens in such a case? Globes asked former Israel Bar Association transportation committee chairperson Adv. Shai Gilad a number of questions relating to a possible invalidation of the A3 cameras' reliability. "Globes": Say I received a ticket with a fine option. I did not appeal; I paid it and was given speeding points. Do I have grounds for a retroactive appeal? Mr. Gilad: "Payment of the find constitutes confession of a violation. Someone who paid the ticket fine without appealing it is therefore in a legal position inferior to that of others who appealed their conviction in court, went through a trial, and had their appeal dismissed. Nevertheless, there is still a theoretical legal path for requesting a retrial on the basis of new evidence." What happens to the points given as a direct result of a violation filmed by A3? "Getting the points removed is a very complicated business, especially when violations committed several years ago are involved. At the same time, if the points are still in effect, there is a possibility of having them retroactively reversed." What happens if a driving license was invalidated following my conviction for a photographed violation or as a result of points accumulated from such violations? "Theoretically, if the reliability of A3 cameras is disallowed, the damage caused by invalidation of licenses can be assessed and a lawsuit filed for them. This is only, however, if it is proven that the A3 tickets are solely responsible for the invalidation. The A3 cameras also filmed violations of crossing intersections on a red light. Are these tickets also liable to be invalidated? "In contrast to speeding tickets, crossing intersections on a red light are documented with still photographs that film the car committing the violation together with the traffic light. The chances of an appeal against such tickets are therefore not good." [GN] J.C. PENNEY: Underpays Associate Designers, "Hernandez" Suit Says ----------------------------------------------------------------- ERICA HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. J.C. Penney Corporation, Inc. and Does 1-20, Defendants, Case No. BC705668 (Cal. Super., May 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff was employed by Defendants at one of their department stores in California as an Associate Designer from February 2016 to November 2017. J. C. Penney Corporation, Inc. operates departmental stores that offers merchandise and services to consumers. The company was founded in 1902 and is based in Plano, Texas. J. C. Penney Corporation, Inc. operates as a subsidiary of J. C. Penney Company, Inc. [BN] The Plaintiff is represented by: Vache A. Thomassian, Esq. Caspar Jivalagian, Esq. IQT LAW GROUP LLP 230 N. Maryland Ave. Suite 306 Glendale, CA 91206 Telephone: (818) 507-8525 E-mail: vachc@kjtlawgroup.com caspar@kjtlawgroup.com - and - Christopher A. Adams, Esq. ADAMS EMPLOYMENT COUNSEL 4740 Calle Carga Camarillo, CA 93012 Telephone: (818) 425-1437 E-mail: ca@AdamsEmploymentCounscI.com J.M. HARVEY: Doesn't Pay OT to Kitchen Staff, Rodriguez Says ------------------------------------------------------------ EDVIN CHAVARRIA RODRIGUEZ, individually and on behalf of all others similarly situated individual, Plaintiff v. J. M. HARVEY, INC. d/b/a LEDO PIZZA; JOAN MARIE MASON; CURTIS H. NOLAND III, Defendants, Case No. 8:18-CV-01540-PWG (D. Md., May 29, 2018) is an action against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act and the Maryland Wage and Hour Law. Mr. Rodriguez was employed by the Defendants as a kitchen staff from the year 2011 to February 28, 2018. He prepared and baked pizzas at the Defendants business establishment. J. M. Harvey, Inc. d/b/a Ledo Pizza is a corporation organized and existing under the laws of the State of Maryland, engaged in the business of selling pizza in Prince George, Maryland. [BN] The Plaintiff is represented by: Justin Zelikovitz, Esq. DCWAGELAW 519 H Street NW Washington, DC 20001 Telephone: (202) 803-6083 Facsimile: (202) 683-6102 E-mail: justin@dcwagelaw.com JAFT LLC: Doesn't Pay OT to Servers, "Katz" Suit Alleges -------------------------------------------------------- LEEMORE KATZ, individually and on behalf of all others similarly situated, Plaintiff v. JAFT LLC and JAFT SANTA MONICA D/B/A JIMMY'S FAMOUS AMERICAN TAVERN, and DOES 1 25, Defendants, Case No. BC705976 (Cal. Super., Los Angeles Cty., May 17, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Katz was employed by the Defendants as server on December 27, 2016. JAFT LLC operate and maintain popular restaurants throughout Los Angeles County, Orange County, and San Diego County. [BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 2974022 E-mail: josh@westcoastlitigation.com - and - Abbas Kazerounian, Esq, KAZEROUNI LAW GROUP, APC 245 Fischer Avenue Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800)520-5523 E-mail: ak@kazlg.com - and - William Rose, Esq. ROSE CONSUMER LAW 100 Wilshire Boulevard, Suite 700 Santa Monica, CA 90401 Telephone: (310) 581-6600 Facsimile: (310) 999-6569 E-mail: bill@roseconsumerlaw.com JAMES SQUARE: Judge Allows NY Residents to Pursue Class Action -------------------------------------------------------------- Kimberly Marselas, writing for McKnight's, reports that a New York judge has cleared the way for residents of a troubled nursing home to pursue a class-action lawsuit against its former owners. Onondaga County Supreme Court Judge Anthony Paris agreed on June 13 to certify the class, which could include more than 1,000 residents, former residents or survivors of those who had lived at the former James Square facility since 2015. A suit brought by attorney Jeremiah Frei-Pearson claims that short-staffing harmed residents, "some of whom were left lying in their own feces and urine for hours," according to Syracuse.com. "We look forward to taking the former owners for every nickel," Mr. Frei-Pearson told media gathered outside the courtroom. The facility had gained notoriety for several lapses in recent years, including a management shakeup in March, last August's resuscitation of a resident with a DNR and Legionnaires cases in 2017. Clinton Square Operations bought the facility in December and renamed it Bishop Rehabilitation & Nursing Center. Mr. Frei-Pearson already reached an agreement with Clinton Square, in which the new owner will pay $495,000, which includes $300,000 to the plaintiffs. Clinton Square also agreed to increase hiring and make other changes. Syracuse.com reported that previous owners River Meadows LLC, James Square Nursing Home Inc. and 918 James Receiver LLC have not settled. They companies argued against the class certification, noting the peculiarities of multiple ownerships and several existing individual lawsuits. The state Attorney General's Office raided the nursing home in June 2017 and seized records as part of an ongoing investigation into patient care. [GN] JANBAR INC: Underpays Construction Workers, "Cedillo" Suit Says --------------------------------------------------------------- SEGUNDO CEDILLO, MANUEL E. BERREZUETYA, and GERMAN MOROCHO CHINCHILIMA, individually and on behalf of all others similarly situated, Plaintiffs v. JANBAR, INC., JANUSZ BARTNICKI, and MARCIN BOLESTA, Defendants, Case No. 1:18-cv-03153 (E.D.N.Y., May 30, 2018) seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, and attorney's fees and costs. Mr. Cedillo was employed by the Defendants as mechanic and construction worker from August 2015 to April 27, 2018. Mr. Berrezuetya was employed by the Defendants as mechanic and construction worker from June 2012 to April 27, 2018. Mr. Chinchilima was employed by the Defendants as mechanic and construction worker from April 2010 to December 2016. Janbar, Inc. is a domestic corporation organized under the laws of the State of New York, with place of business at Ridgewood, New York. [BN] The Plaintiff is represented by: Peter H. Cooper, Esq. Justin Cilenti, Esq. CILENTI & COOPER, PLLC 708 Third Avenue, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: pcooper@jcpclaw.com JONES MOTOR: Seventh Circuit Appeal Filed in "Daley" Class Suit --------------------------------------------------------------- Plaintiff Michael Daley filed an appeal from a court ruling in the lawsuit entitled Michael Daley v. Jones Motor Company, Incorporated, et al., Case No. 3:17-cv-00056-NJR-DGW, in the U.S. District Court for the Southern District of Illinois. The appellate case is captioned as Michael Daley v. Jones Motor Company, Incorporated, et al., Case No. 18-1924, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case states that Appellant's brief was due on or before June 6, 2018, for Michael Daley.[BN] Plaintiff-Appellant MICHAEL DALEY, Individually and on behalf of all others similarly situated, is represented by: Michael Todd Blotevogel, Esq. ARMBRUSTER, DRIPPS, WINTERSCHEIDT & BLOTEVOGEL, LLC 219 Piasa Street P.O. Box 8338 Alton, IL 62002 Telephone: (800) 917-1529 E-mail: mikeb@adwblaw.com Defendant-Appellee JONES MOTOR COMPANY, INCORPORATED, is represented by: David M. Krueger, Esq. BENESCH, FRIEDLANDER, COPLAN & ARONOFF 200 Public Square 2300 BP Tower Cleveland, OH 44114-2378 Telephone: (216) 363-4500 E-mail: dkrueger@beneschlaw.com Defendant-Appellee ZURICH AMERICAN INSURANCE COMPANY is represented by: Beth Ann Berger Zerman, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 550 W. Adams Street Chicago, IL 60661-0000 Telephone: (312) 463-3363 E-mail: bethann.berger@lewisbrisbois.com KAMRAN STAFFING: Fails to Pay Proper Wages, "Morales" Suit Claims ----------------------------------------------------------------- MARIA MORALES, individually and on behalf of all others similarly situated, Plaintiff v. KAMRAN STAFFING, INC.; SUPERIOR COMMUNICATIONS INC.; ASC STAFFING GROUP LLC; SELECT STAFFING INC.; REAL TIME STAFFING SERVICES LLC; STAFFMARK; and DOES 1 through 50, inclusive, Defendants, Case No. BC706903 (Cal. Super., Los Angeles Cty., May 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Ms. Morales was employed by the Defendants as a non-exempt hourly employee. Kamran Staffing, Inc. is a corporation organized under the laws of the State of California. [BN] The Plaintiff is represented by: Kevin Mahoney, Esq. Anna Salusky, Esq. Alexander Perez, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Boulevard, Suite 814 Long Beach, CA 90802447 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 E-mail: kmahoney@mahoney-law.net asalusky@ mahoney-law.net aperez@ mahoney-law.net KFF ARBITRATION: Anderson Sues over Debt Collection Practices ------------------------------------------------------------- SUNSHINE ANDERSON, individually and on behalf of all others similarly situated, Plaintiff v. KFF ARBITRATION LLC, and DOES 1 10, Defendant, Case No. 2:18-cv-04825 (C.D. Cal., May 31, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect debt. KFF Arbitration LLC is a company engaged in the business of providing dispute resolution services. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 877-206-4741 Facsimile: 866-633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com KNORR-BREMSE AG: Faces "Ochoa" Suit over No-Poach Agreements ------------------------------------------------------------ Jeffrey J. Ochoa, individually and on behalf of all others similarly situated, Plaintiff v. KNORR-BREMSE AG; KNORR BRAKE COMPANY; NEW YORK AIR BRAKE COMPANY; WABTEC; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION; WESTINGHOUSE AIR BRAKE TECHNOLOIES CORPORATION PASSENGER TRANSIT; FAIVELY TRANSPORT NORTH AMERICA INC.; and FAIVELEY TRANSPORT S.A., Defendants, Case No. 2:18-cv-00638-CB (W.D. Pa., May 14, 2018) is an action against the Defendants for violation of the Sherman Act. The complaint alleges that the Defendants agreed not to solicit, recruit, or hire each other's employees without prior approval, or otherwise compete for employees, known as the Defendants' No- Poach Agreements. The conspiratorial No-Poach Agreements had the effect of unlawfully allocating employees among the Defendants, thereby reducing or eliminating competition for and suppressing compensation to U.S. workers, among other injuries. Despite the high demand for a limited supply of skilled employees who have the relevant technical and industry experience, the unlawful No- Poach Agreements substantially limited U.S. rail industry worker's access to better job opportunities, restricted mobility, and deprived them of information useful in negotiating better terms of employment, including higher compensation. Knorr-Bremse Aktiengesellschaft develops, produces, markets, and services braking systems for rail and commercial vehicles. The Company provides entrance, windscreen wiper, driver assistance, and power supply systems, as well as platform screen doors and torsional vibration dampers. Knorr-Bremse serves customers worldwide. [BN] The Plaintiff is represented by: A. Patricia Diulus-Myers, Esq. SEGMILLER & ASSOCIATES Rivertech Centre 3700 South Water Street, Suite 130 Pittsburg, PA 15203 Telephone: (412) 227-5886 Facsimile: (412) 227-5887 E-mail: apdm@segmend.com - and - W. Joseph Bruckner, Esq. Heidi M. Silton, Esq. Elizabeth R. Odette, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: wjbruckner@locklaw.com hmsilton@locklaw.com - and - Arthur N. Bailey, Esq. Marco Cercone, Esq. R. Anthony Rupp, III RUPP BAASE PFALZGRAF CUNNINGHAM, LLC 1600 Liberty Center 424 Main Street Buffalo, NY 14202 Telephone: (716) 664-2967 Facsimile: (716) 664-2983 E-mail: bailey@ruppbaase.com cercone@ruppbaase.com rupp@ruppbaase.com LAZARD LTD: Faces "Burbon" Suit over Website Access for Blind ------------------------------------------------------------- LUC BURBON, individually and on behalf of all others similarly situated, Plaintiff v. LAZARD LTD, Defendant, Case No. 1:18-cv- 04631 (S.D.N.Y., May 24, 2018) is an action against the Defendant for failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Plaintiff alleges that the Defendant's website, WWW.LAZARD.COM is not equally accessible to blind and visually- impaired consumers, and violates the Americans with Disability Act. The Plaintiff seeks to cause a change in the Defendant's corporate policies, practices, and procedures so that the website will become and remain accessible to blind and visually-impaired consumers. Lazard Ltd, together with its subsidiaries, operates as a financial advisory and asset management firm worldwide. Lazard Ltd was founded in 1848 and is based in Hamilton, Bermuda. [BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: nyjg@aol.com danalgottlieb@aol.com LEASE AND RENTAL: Garcia Sues over Car Repossession Practices ------------------------------------------------------------- SHANITA GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. LEASE AND RENTAL MANAGEMENT CORP., Defendant, Case No. 181457 (Mass. Super., Middlesex Cty., May 18, 2018) is an action against the Defendant's unlawful car repossession practices. The complaint alleges that after repossessing the Plaintiff's and the class members' vehicles, the Defendant sent them form post- repossession notices that failed to include key provisions required by law. The failure to provide a consumer with all appropriate repossession notices and information required by Massachusetts law gives rise to statutory and other damages. Lease And Rental Management Corp., doing business as Auto Loan, provides automotive financing services to franchised and independent auto dealers in the United States. It offers prime and subprime retail, inventory, and auction financing services, as well as consumer car loan services. The company was founded in 1978 and is based in Andover, Massachusetts. [BN] The Plaintiff is represented by: Raven Moeslinger, Esq. Stephanie C. Ozahowski, Esq. Nicholas F. Ortiz, Esq. LAW OFFICE OF NICHOLAS F. ORTIZ, P.C. 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 338-9400 E-mail: rm@mass-legal.com LEGENDS HOSPITALITY: Underpays Bartenders, "Hightower" Suit Says ---------------------------------------------------------------- SHERRI HIGHTOWER, individually and on behalf of all others similarly situated, Plaintiff v. LEGENDS HOSPITALITY, LLC, and DOES 1 through 100, Defendants, Case No. 18CV328576 (Cal. Super., May 17, 2018) is an action against the Defendants for unpaid regular wages, overtime hours, wages for missed meal and rest periods. The Plaintiff Hightower was employed by the Defendants as bartender from May 2015 to November 2017. Legends Hospitality LLC provides integrated solutions for sports, entertainment, and leisure industries. The company serves professional sports owners and franchises, collegiate athletic departments, municipalities, and convention centers in the United States and internationally. Legends Hospitality LLC was founded in 2008 and is based in New York, New York. [BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 322-4772 Facsimile: (424) 322-4775 E-mail: slidman@lidmanlaw.com enguyen@lidmanlaw.com - and - Paul K. Haines, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com LS & PARTNERS: Underpays Waiters and Servers, "Miller" Suit Says ---------------------------------------------------------------- JAMES MILLER; ASHLEY LEON; AND DAMESHA CHRISTOPHER, individually and on behalf of all others similarly situated, Plaintiff v. LS & PARTNERS @ CA, CA, LLC; LS and PARTNERS AT LAX, LLC; PARADIES LAGARDERE@LAX (F&B, LLC; PARADIES LAGARDERE@LAX, LLC and Does 1 through 50, Defendants, Case No. BC706919 (Cal. Super., Los Angeles Cty., May 21, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Miller was employed by the Defendant as a waiter. Ms. Leon and Ms. Christopher were employed as a server. LS & Partners @ CA, CA, LLC is a limited liability company organized and existing under the laws of the State of Delaware. The Company is engaged in the restaurant business. [BN] The Plaintiff is represented by: Michael D. McLachlan, Esq. Jaclyn E. Fortini Laing, Esq. McLACHLAN LAW, APC 2447 Pacific Coast Highway, Suite 100 Hermosa Beach, CA 90254 Telephone: (310) 954-8270 Facsimile: (310) 954-8271 E-mail: mike@mclachlan-law.com jaclyn@mclachlan-law.com - and - W. Kielty, Esq. 4640 Admiralty Way, Suite 500 Marina Del Rey, CA 90292-6636 Telephone: (310) 393-0515 Facsimile: (310) 626-8521 E-mail: tomkielty@earthlink.net MAIDEN LANE: NY High Ct. Certifies Class in Superstorm Sandy Suit ----------------------------------------------------------------- The Supreme Court, New York County, granted Plaintiffs' Motion for Class Certification in the case captioned JERRY MENNA, individually and on behalf of all others similarly situated, Plaintiff, v. MAIDEN LANE PROPERTIES, LLC., and A.D. REAL ESTATE MANAGEMENT, INC., Defendants, Docket No. 157710/15 (N.Y.). Plaintiff Jerry Menna moves for an order: (1) pursuant to CPLR Article 9, certifying this action as a class action; (2) appointing him as class representative; and (3) appointing Imbesi Law PC (Imbesi) and Napoli Shkolnik PLLC (Napoli) as class counsel. The Plaintiff commenced this action as a purported class action on behalf of himself and all other similarly situated residents of 100 Maiden Lane, New York, New York 10038. The proposed class includes all individuals who resided at the Premises on October 29, 2012. The complaint identifies defendant A.D. Real Estate Management, Inc., as the managing agent for the Premises responsible for assisting in protecting the Premises regarding "Superstorm Sandy." Defendant Maiden Lane Properties, LLC, is the owner of the Premises. The Plaintiff claims that the defendants failed to exercise due care to adequately safeguard the Premises from damage by Sandy. In opposing certification, the defendants argue that the Residents incurred vastly differing losses and expenses because of the flooding. Moreover, the defendants contend that the Residents may assert different theories of liability or may raise different affirmative defenses which may include the failure to purchase renter's or flood insurance to insure against personal property loss as required by the leases. Pursuant to CPLR 901(a), one or more members of a class may sue as representative parties on behalf of all if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class which predominate over any questions affecting only individual members; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately protect the interests of the class; and (5) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Here, the defendants argue that there is a lack of commonality because the Premises incurred differing losses and expenses. According to the defendants, some tenants failed to mitigate their claimed personal property damage. The Court finds these contentions unconvincing. In Roberts v Ocean Prime, LLC, the Court recognized that the trial court may, in its discretion, establish subclasses (citing City of New York v Maul, supra at 513). The need to conduct individualized damages inquiries does not obviate the utility of the class mechanism for this action, given the predominant common issues of liability. Moreover, typical claims are those that arise from the same facts and circumstances as the claims of the class members. The court's findings in Roberts v Ocean Prime, LLC, that the claims of the putative class representatives are typical of the class's claims since each resides or leases space in the building and their injuries, if any, derive from the same course of conduct by defendants is applicable in this matter currently before the Court. The Plaintiff's situation is typical of the claims or defenses of the class, because he was a tenant residing in the Premises, and alleges that he was adversely affected by the defendant's alleged wrongdoing as the other members of the proposed class. All proposed class members, including the plaintiff, were forced to evacuate, and allegedly, the defendants' negligence led to the apartments' uninhabitability. Since the typicality requirement relates to the nature of the claims and the transaction, not the amount or measure of damages, that the plaintiff's damages may differ from those of other members of the class is not a proper basis to deny class certification. The Court finds that the Defendants have not identified any conflict of interest between the plaintiff and the class that he seeks to represent. The Plaintiff's proposed class counsel have substantial experience in complex class action litigation. Imbesi and Napoli are jointly representing class members in several class action cases. In an action brought by multiple tenants, a class action is superior to individual actions as it conserves judicial resources by avoiding a multiplicity of lawsuits involving the same basic facts, the state Supreme Court rules. The Plaintiff's motion for class certification and for the plaintiff to prosecute the action on behalf of a class consisting of all individuals who resided at 100 Maiden Lane, New York, New York 10038 on October 29, 2012, excluding the defendants and their affiliates, parents, subsidiaries, employees, officers, agents, and directors; government entities or agencies, their affiliates, employees, officers, agents, and directors in their governmental capacities; any judicial officer presiding over this matter and the members of their immediate families and judicial staff; and class counsel, is granted. A full-text copy of the state Supreme Court's April 23, 2018 Opinion is available at https://tinyurl.com/y89b88cr from Leagle.com. MAJOR LEAGUE: Wants Minor Leaguers' Class Certification Reversed ---------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that conflicting state laws and wide variations in hours worked make it impractical and wrong to let Minor League players team up to sue their employers for minimum wage, a Major League Baseball lawyer told the Ninth Circuit on June 13. "The question is will the court be required to do an individualized analysis for each of these players," MLB lawyer Elise Bloom, Esq. -- ebloom@proskauer.com -- of Proskauer Rose in New York, asked the panel. "The answer is yes. That destroys predominance." Ms. Bloom urged the Ninth Circuit to reverse a March 2017 ruling that certified a class of Minor League players in California who say they were paid as little as $3,000 per season and not paid overtime or compensated for off-season work, including spring training. Ms. Bloom said surveys the plaintiffs submitted as evidence only show when players arrived and left ballparks. They don't prove how many hours the players actually worked, she said. "The data in the survey tells you absolutely nothing about what happened with players in the California leagues," Ms. Bloom said. "There's no way to quantify compensable time." U.S. Magistrate Judge Joseph Spero reached the opposite conclusion last year when he found the July 2016 survey of 720 players was more reliable than a previously rejected study. The newer survey sought to eliminate self-interest bias by not telling players the purpose of it and asked questions to jog their memories. A plaintiffs' expert also cross-checked the data with team schedules. Lead plaintiff Aaron Senne, who played for a Miami Marlins farm team in upstate New York, sued former MLB Commissioner Bud Selig and 30 Major League clubs in February 2014. Judge Spero previously dismissed eight Major League clubs from the suit for lack of jurisdiction. He also decertified the players' class status in 2016 before re-certifying a class of players who did championship season or off-season work in California starting in February 2011. On June 13, Ms. Bloom also asked the Ninth Circuit to uphold Judge Spero's decision rejecting class certification for two other groups of players in Arizona and Florida, due to conflicting state labor laws. The judge found California has a strong interest in making sure its stronger labor laws apply to work performed in the Golden State, but he did not reach the same conclusion for work done in Arizona and Florida. The Minor League players argue that because they are only seeking minimum wage in those states, and not overtime, the court won't have to engage in a laborious "governmental interest test" to determine which state's law should apply to each player's claims. The plaintiffs' attorney, Robert King of Korein Tillery in St. Louis, said it makes sense that Arizona and Florida laws should apply to work done in those states. "The general proposition here is the old ancient maxim: when in Rome, do as the Romans," Mr. King told the panel on June 13. But Ms. Bloom said it's not that simple. She asked why players from states like Washington and Massachusetts, with higher minimum wages and more generous statutes of limitations, would choose to pursue claims under the less worker-friendly laws of Florida and Arizona. Ms. Bloom cited the example of one plaintiff, Joel Weeks, who signed a contract with the San Francisco Giants in 2008. Mr. Weeks spends most of his time in California, but goes to Arizona for spring training four weeks per year. Ms. Bloom said Mr. Weeks would almost certainly argue he is entitled to California's higher minimum wage and not Arizona's. "Can't he opt out?" U.S. Circuit Judge Richard Paez asked. Ms. Bloom acknowledged players can opt out of the class, but she insisted that each player's situation is too unique to justify class certification. Representing the players, Mr. King argued it's not the interests of the players that count in a "governmental interest analysis." Each state has a strong motive to make sure its own laws apply to work performed within that state, he said. "Every state has an interest in the certainty that an employer knows when the work is being performed in that state . . . you've got to apply the law of the state where the work was performed," Mr. King said. U.S. Circuit Judge Sandra Ikuta said she is sympathetic to the district court's concern that "there are a lot of different state laws it would have to look at" in evaluating the claims of Minor League players in Florida and Arizona. Mr. King argued that resolving the players' claims of labor law violations requires answering two basic questions, which can be handled on a class-wide basis: were the Minor League players employees, and did the actions they perform count as work? If the Ninth Circuit allows the California players to proceed as a class in their lawsuit, a recent state Supreme Court ruling will give the plaintiffs a boost. Earlier this year, the California Supreme Court expanded the number of workers eligible for minimum wage and made it harder for employers to classify workers as independent contractors and deny them employment benefits. Visiting 10th Circuit Judge Michael Murphy joined Paez and Ikuta on the panel. Judge Paez and Judge Murphy were appointed by President Bill Clinton. Judge Ikuta was appointed by President George W. Bush. [GN] MARVELL TECH: "Luna" Securities Suit Settlement Has Final OK ------------------------------------------------------------ In the case, DANIEL LUNA, individually and on behalf of all others similarly situated, Plaintiff, v. MARVELL TECHNOLOGY GROUP, et al., Defendants, Case No. C 15-05447 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Lead Plaintiff's motion for final approval of a proposed settlement agreement; and granted in part the Lead Counsel's motion for attorney's fees and reimbursement of litigation expenses. Lead Plaintiff Plumbers and Pipefitters National Pension Fund asserted class claims against the Defendants for violations of the Securities and Exchange Act based on allegedly fraudulent pull-in sales which caused the price of Marvell common stock to be artificially inflated. The Lead Plaintiff filed a consolidated complaint in March 2016, asserting claims against the Defendants for violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. Orders granted in part and denied in part the Defendants' motions to dismiss. A subsequent order certified the class of all persons and entities who purchased or otherwise acquired the common stock of Marvell during the period from Feb. 19, 2015 through Dec. 7, 2015, inclusive, and were damaged thereby. A December 2017 order granted the Lead Plaintiff's motion for preliminary approval of a proposed class settlement. The order also approved, as to form and content, a notice concerning the class settlement agreement and final approval hearing. The claims administrator sent the class notice to 135 potential class members at addresses obtained from the transfer agent for To date, the claims administrator has mailed 38,513 notices to potential class members and nominees. As of April 12, the claims administrator had received 1,363 claims from potential class members, with a number of additional claims expected as the May 7 claims deadline approaches. The administrator received no objections to the proposed class settlement or requested attorney's fees and received only four requests to opt out of the class. The order now considers the Lead Plaintiff's motion for final approval of the proposed class settlement. The Lead Counsel also move for $15,950,000 in attorney's fees (comprising 22% of the total settlement fund) and seek reimbursement of $496,656.65 in litigation expenses. Having found that the proposed class settlement is fair, reasonable, and adequate as to the class, the Lead Plaintiff, and the Defendants, Judge Alsup approved the settlement. Having considered the Lead Counsel's motion for attorney's fees and reimbursement of expenses, the Judge awarded the Lead Counsel attorney's fees of $13,602,481 with interest accrued. Half of this amount will be paid after the "effective date" as defined in the stipulation of settlement dated Dec. 19, 2017. The other half will be paid when the Lead Counsel certifies that all funds have been properly distributed and the file can be completely closed. The Judge also awarded the Lead Counsel $496,656.65 as reimbursement for their litigation expenses, to be paid from the settlement fund. By May 11, 2018, the parties will submit a final class list (with names and cities) setting forth the class members bound by the class settlement. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/axd2XP from Leagle.com. Daniel Luna, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Casey Edwards Sadler -- csadler@glancylaw.com -- Glancy Prongay & Murray LLP, Lionel Zevi Glancy -- lglancy@glancylaw.com -- Glancy Prongayn & Murrary LLP & Robert Vincent Prongay, Glancy Prongay & Murray LLP. Philip Limbacher, Consol Plaintiff, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Joseph Alexander Hood, II, Pomerantz LLP, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Jim Farno, Consol Plaintiff, represented by Jeremy Alan Lieberman, Pomerantz LLP, Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom, Pomerantz LLP. Marvell Technology Group LTD, Defendant, represented by Diane M. Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Harry Arthur Olivar, Jr. -- harryolivar@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Alyssa L. Greenberg -- alygreenberg@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan LLP, Jason Frank Lake -- jasonlake@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan & Valerie Suzanne Roddy -- valerieroddy@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan, LLP. Sehat Sutardja, Defendant, represented by Jason David Russell -- jason.russell@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. Michael Rashkin, Defendant, represented by Joshua Garrett Hamilton -- joshua.hamilton@lw.com -- Latham & Watkins LLP & James Hyeoun Ju Moon -- james.moon@lw.com -- Latham and Watkins LLP. Sukhi Nagesh, Defendant, represented by Bahram Seyedin-Noor -- bahram@altolit.com -- Alto Litigation, PC, Bryan Jacob Ketroser, Wilson Sonsini Goodrich & Rosati & Ian Edward Browning, Alto Litigation, PC. Employees Pension Plan Of The City Of Clearwater, Movant, represented by Curtis Victor Trinko -- ctrinko@trinko.com -- Law Offices of Curtis V. Trinko, LLP. Plumbers and Pipefitters National Pension Fund, Movant, represented by Carissa Jasmine Dolan -- cdolan@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jonah Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Matthew Isaac Alpert -- malpert@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Nadim Gamal Hegazi -- nhegazi@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Scott H. Saham -- scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Cambridge Retirement System, Movant, represented by Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP & Avi Josefson -- avi@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. Oakland County Employees' Retirement System, Movant, represented by Gerald H. Silk, Bernstein Litowitz Berger & Grossmann LLP & Avi Josefson, Bernstein Litowitz Berger & Grossmann LLP. Hui Qian, Movant, represented by Lesley Frank Portnoy, Pomerantz LLP. The Audit Committee of the Board of Directors of Marvell Technology Group, Ltd., Miscellaneous, represented by John P. Stigi, III -- jstigi@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP. MARVELL TECH: Court Approves Allocation Plan in "Luna" Settlement ----------------------------------------------------------------- In the case, DANIEL LUNA, individually and on behalf of all others similarly situated, Plaintiff, v. MARVELL TECHNOLOGY GROUP, et al., Defendants, Case No. C 15-05447 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Lead Plaintiff's Motion for Final Approval of Class Action Settlement and Approval of Plan of Allocation. Pursuant to Federal Rule of Civil Procedure 23, the Judge finds and concludes that due and adequate notice was directed to Persons who are Class Members advising them of the Plan of Allocation and of their right to object thereto, and a full and fair opportunity was accorded to such Persons and entities who are Class Members to be heard with respect to the Plan of Allocation. He finds and concludes that the formula for the calculation of the claims of Authorized Claimants, which is set forth in the Notice of Proposed Settlement of Class Action sent to the Class Members, provides a fair and reasonable basis upon which to allocate the proceeds of the Net Settlement Fund provided by the settlement among eligible Class Members, with due consideration having been given to administrative convenience and necessity. Finally, he finds and concludes that the Plan of Allocation, as set forth in the Notice, is, in all respects, fair and reasonable. Accordingly, he approved the Plan of Allocation. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/RqG2fc from Leagle.com. Daniel Luna, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Casey Edwards Sadler -- csadler@glancylaw.com -- Glancy Prongay & Murray LLP, Lionel Zevi Glancy -- lglancy@glancylaw.com -- Glancy Prongayn & Murrary LLP & Robert Vincent Prongay, Glancy Prongay & Murray LLP. Philip Limbacher, Consol Plaintiff, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Joseph Alexander Hood, II, Pomerantz LLP, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Jim Farno, Consol Plaintiff, represented by Jeremy Alan Lieberman, Pomerantz LLP, Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Patrick V. Dahlstrom, Pomerantz LLP. Marvell Technology Group LTD, Defendant, represented by Diane M. Doolittle -- dianedoolittle@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Harry Arthur Olivar, Jr. -- harryolivar@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, Alyssa L. Greenberg -- alygreenberg@quinnemanuel.com -- Quinn Emanuel Urquhart Sullivan LLP, Jason Frank Lake -- jasonlake@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan & Valerie Suzanne Roddy -- valerieroddy@quinnemanuel.com -- Quinn Emanuel Urquhart and Sullivan, LLP. Sehat Sutardja, Defendant, represented by Jason David Russell -- jason.russell@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. Michael Rashkin, Defendant, represented by Joshua Garrett Hamilton -- joshua.hamilton@lw.com -- Latham & Watkins LLP & James Hyeoun Ju Moon -- james.moon@lw.com -- Latham and Watkins LLP. Sukhi Nagesh, Defendant, represented by Bahram Seyedin-Noor -- bahram@altolit.com -- Alto Litigation, PC, Bryan Jacob Ketroser, Wilson Sonsini Goodrich & Rosati & Ian Edward Browning, Alto Litigation, PC. Employees Pension Plan Of The City Of Clearwater, Movant, represented by Curtis Victor Trinko -- ctrinko@trinko.com -- Law Offices of Curtis V. Trinko, LLP. Plumbers and Pipefitters National Pension Fund, Movant, represented by Carissa Jasmine Dolan -- cdolan@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jonah Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Matthew Isaac Alpert -- malpert@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Nadim Gamal Hegazi -- nhegazi@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Scott H. Saham -- scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Cambridge Retirement System, Movant, represented by Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP & Avi Josefson -- avi@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. Oakland County Employees' Retirement System, Movant, represented by Gerald H. Silk, Bernstein Litowitz Berger & Grossmann LLP & Avi Josefson, Bernstein Litowitz Berger & Grossmann LLP. Hui Qian, Movant, represented by Lesley Frank Portnoy, Pomerantz LLP. The Audit Committee of the Board of Directors of Marvell Technology Group, Ltd., Miscellaneous, represented by John P. Stigi, III -- jstigi@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP. MAXIM HEALTHCARE: Doesn't Pay OT to Medical Staff, Duran Claims --------------------------------------------------------------- MARIA DURAN, individually and on behalf of all others similarly situated, Plaintiff v. MAXIM HEALTHCARE SERVICES, INC., and Does 1-50, Defendants, Case No. BC705663 (Cal. Super., May 17, 2018) is an action against the Defendants for unpaid regular wages, overtime hours, wages for missed meal and rest periods. Ms. Duran was employed by the Defendants as medical staff from July 2013 to December 2014. MAXIM is a healthcare/medical staffing agency business providing labor and services as an employer or joint-employer throughout the State of California. [BN] The Plaintiff is represented by: Ari E. Moss, Esq. MOSS BOLLINGER LLP 15300 Ventura Blvd., Ste. 207 Sherman Oaks, CA 91403 Telephone: (310)982-2984 Facsimile: (818) 983-5954 E-mail: ari@mossbollinger.com MDL 2617: Special Master Recommends $29MM Attys' Fees, $2MM Costs ----------------------------------------------------------------- In the case, IN RE ANTHEM, INC. DATA BREACH LITIGATION, Case No.: 15-MD-02617-LHK (N.D. Cal.), Special Master James P. Kleinberg of the U.S. District Court for the Northern District of California, San Jose Division, entered his report and recommendation regarding award of attorneys' fees and reimbursement of litigation expenses. By Order of Feb. 8, 2018, the Special Master was charged with reviewing the lodestar for fees and expenses for the representation of the Class. In doing so, he is authorized to review the time and expenses spent litigating the case and to deduct time and expenses that are excessive, unnecessary, or duplicative. The case settled in June 2017. Anthem agreed to an all-inclusive fund of $115 million, out of which the class counsel moved pursuant to Rule 23(h) for fees and expenses totaling $39.95 million as the counsel's "lodestar." That amount is 34.7% of the gross and 43.4% of the net settlement. This claimed amount is derived from the time records of 53 law firms comprising over 300 timekeepers. With all of the competing considerations in mind, the Special Master has reviewed the counsel's billing records, rates, hours, tasks, number of personnel employed, and the claimed expenses for each billing firm. He has reviewed the settlement terms between the class and the Defendant, including whether the counsel's representation is correct that there is no collusion or conflicts of interest (e.g., fee splitting among counsel), and whether there is a "clear sailing" arrangement providing for the payment of attorneys' fees separate and apart from class funds. The Special Master has not been charged with assessment of the reasonableness or fairness of the settlement. The Special Master takes the position that, to the extent the lodestar is adjusted downwards from what the class counsel is seeking, the difference will revert to the class members. Further, he recommends that the costs of litigation and the fees of the Special Master be deducted from the counsels' share rather than that of the class. The risks undertaken by the class counsel and their sizable investment in an unknown result, typical of class actions, were magnified in the instant megafund case. And, as noted, the settlement here was extremely positive, including the commitment by Anthem to undertake extensive curative actions. However, the number of the counsel, the overlapping staffing and the excessive rates charged for contract lawyers -- in contravention of the Court's admonitions -- weigh heavily in the report's recommendations. Taking all these factors into account, and good cause appearing, the Special Master makes the following alternative recommendations: a. The 25% Benchmark: As articulated in the Ninth Circuit's ruling in In re Bluetooth Headset Products Liability Litigation, there is authority to simply apply 25% to the settlement figure as the amount to be awarded to the counsel. If the total figure here is $115 million, that amount of fees is $28,750,000. The Class counsel would then need to deduct approximately $2 million for expenses (paid or outstanding), leaving counsel with a net recovery of $26,750,000. Using the "benchmark" approach, either the "gross" or "net" recovery is well below the approximate amount sought by counsel of $39,950,000. b. The revised, average billing rate: By taking the averages of all firms' billings, an overall average rate, meaning all personnel regardless of rank, equals $455. Applying that rate to the billable hours, a total of $35,896,087 is achieved. Again, that is before deduction of about $2 million for expenses, leaving counsel with a net recovery of $33,896,087. This is also well below the amount sought by the counsel. c. Reducing the claimed lodestar by a "haircut" of 10% and a reduction for contract attorneys: This approach is articulated in the Ninth Circuit's Moreno opinion. In this case, a two-step process is required. First, the overbilling for contract attorneys needs to be deducted from the gross fees sought, as follows: Total claimed fees = $37,950,000, minus the $3,963,671 in arguable overcharges (see Section II.B. above) yields $33,986,328 in fees. Then, a "haircut" of 10% further due to the factors described above, reduces the lodestar to $30,587,696. That figure is 26.6% of the total $115 million gross settlement and 34% of the $90 million net settlement fund (if expenses and administrative costs are excluded). The Special Master assumes litigation expenses (including experts) have been paid by this date, so they are reimbursable to counsel but should be deducted in computing the lawyers' fee recovery. To summarize, when the approximately $2 million in expenses are deducted from the counsel's recovery, the net received by class counsel is $28,587,696 or 24.9% of the settlement's $115 million gross figure. This compares with the Counsel's request for 33% of the $115 million settlement fund. The above three alternative analyses recommended by the Special Master yield fees compensation to the class counsel as follows: a. Benchmark 25% = $26,750,000 b. $455/Hr. Billing rate = $33,896,087 c. 10% Haircut off counsel's lodestar = $28,587,696. The third, "haircut" analysis is the one the Special Master recommends. This approach equals $9,362,304 or 24.7% reduction off of the counsel's claimed lodestar. It is considerate of the counsel's efforts which are appropriate in light of the results achieved for the present and the future. It allows a significant monetary reward for the class. It also recognizes the overcharging outlined. If the lodestar is adjusted downwards from what the class counsel is seeking, the difference should revert to the class members. Therefore, the Special Master recommended $28,587,696 to the class counsel, $2,005,069 for litigation expenses, $23 million for notice and administrative fees. He further recommended that the costs for a reserve of $132,000 ($60,000 for expert monitoring services and $72,000 for a call-in center), and service awards of $5,000 and $7,500 per awardee be borne by the class counsel, and not the Class. Finally, the Special Master's charges should also be borne by the counsel, and not the class. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/ZVWnkL from Leagle.com. Anthem, Inc., Customer Data Security Breach Litigation, Plaintiff, represented by Craig Alan Hoover -- craig.hoover@hoganlovells.com -- Hogan Lovells US LLP, E. Desmond Hogan -- desmond.hogan@hoganlovells.com -- Hogan Lovells, Eve Hedy Cervantez -- ecervantez@altshulerberzon.com -- Altshuler Berzon LLP, Michael McDonald Maddigan -- michael.maddigan@hoganlovells.com -- Hogan Lovells US LLP, Peter R. Bisio -- peter.bisio@hoganlovells.com -- HOGAN LOVELLS US LLP & Michael Ben Pasternak, Michael Pasternak. Laura Fowles, Plaintiff, represented by Anthony J. LoPresti -- tlopresti1@gmail.com -- Altshuler Berzon LLP, Danielle Evelyn Leonard -- dleonard@altshulerberzon.com -- Altshuler Berzon LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, Michael W. Sobol -- msobol@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Nicole Diane Sugnet -- Nicole.Sugnet@jud.ca.gov -- Lieff Cabraser Heimann & Bernstein, LLP & RoseMarie Maliekel, Clarence Dyer & Cohen LLP. Danny Juliano, Plaintiff, represented by Anthony J. LoPresti, Altshuler Berzon LLP, Danielle Evelyn Leonard -- dleonard@altshulerberzon.com -- Altshuler Berzon LLP, Donald W. Stewart, Eve Hedy Cervantez, Altshuler Berzon LLP, Greg William Foster -- fosterg@saccounty.net -- STEWART AND STEWART PC, Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP & T. Dylan Reeves, STEWART & STEWART PC. Susanne Powell, Casey Silva & Brent J Gearhart, Plaintiffs, represented by Anthony J. LoPresti, Altshuler Berzon LLP, Clayeo C. Arnold, Clayeo C. Arnold, A Professional Law Corporation, Danielle Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, Joshua Haakon Watson, Clayeo C. Arnold, A Professional Law Corporation & Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP. Samantha Kirby, Plaintiff, represented by Theodore Walter Maya -- tmaya@ahdootwolfson.com -- Ahdoot & Wolfson, P.C., Anthony J. LoPresti, Altshuler Berzon LLP, Bradley Keith King -- bking@ahdootwolfson.com -- Ahdoot & Wolfson APC, Danielle Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, John Allen Yanchunis, Sr., Morgan and Morgan, P.A., Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP, Robert Ahdoot -- RAhdoot@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. & Tina Wolfson -- twolfson@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. Aswad Hood, Plaintiff, represented by Anthony J. LoPresti, Altshuler Berzon LLP, Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP, David Michael Berger -- dmb@classlawgroup.com -- Girard Gibbs LLP, Eric H. Gibbs -- ehg@classlawgroup.com -- Gibbs Law Group LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP, Scott M. Grzenczyk -- smg@girardgibbs.com -- Girard Gibbs LLP & Steven Augustine Lopez -- sal@girardgibbs.com -- Girard Gibbs LLP. Susan Morris, Plaintiff, represented by Aashish Y. Desai, Desai Law Firm PC, Anthony J. LoPresti, Altshuler Berzon LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, M. Adrianne De Castro, Desai Law Firm, PC & Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP. Joseph D'Angelo, III, Shawn P. Haggerty, Charity L. Latimer, Kurt J. McLaughlin, Tamara Nedlouf, John A. Thomas, II & Richard Gillespie, Plaintiffs, represented by Anthony J. LoPresti, Altshuler Berzon LLP, Danielle Evelyn Leonard Altshuler Berzon LLP, Edward Adam Webb -- Contact@WebbLLC.com -- Webb, Klase & Lemond, LLC, Eve Hedy Cervantez, Altshuler Berzon LLP, G. Franklin Lemond, Jr., Webb, Klase and Lemond, LLC, Matthew C. Klase, Webb, Klase & Lemond, LLC & Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP. Lauren Roberts, Plaintiff, represented by Anthony J. LoPresti, Altshuler Berzon LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP, Edward Adam Webb, Webb, Klase & Lemond, LLC, Eve Hedy Cervantez, Altshuler Berzon LLP, G. Franklin Lemond, Jr., Webb, Klase and Lemond, LLC, Karen Hanson Riebel, Lockridge Grindal Nauen, Kate M. Baxter-Kauf, Lockridge Grindal Nauen P.L.L.P., Matthew C. Klase, Webb, Klase & Lemond, LLC & Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP. Rosalynn C. Krissman, Plaintiff, represented by Bonny E. Sweeney -- bsweeney@hausfeld.com -- Hausfeld LLP, Christopher L. Lebsock -- clebsock@hausfeld.com -- Hausfeld LLP, Anthony J. LoPresti, Altshuler Berzon LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP & Eve Hedy Cervantez, Altshuler Berzon LLP. Anthem, Inc., formerly known as WellPoint Inc doing business as Anthem Health Inc., Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, Michael McDonald Maddigan, Hogan Lovells US LLP, Adam Cooke, Hogan Lovells US LLP, Alexandria J. Reyes, Troutman Sanders, LLP, Allison Marie Holt, HOGAN LOVELLS US LLP, Cassandra Lauren Crawford -- cassie.crawford@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Cavender C. Kimble -- ckimble@balch.com -- BALCH & BINGHAM LLP, Chad R. Fuller, Troutman Sanders LLP, Christopher W. Brooker -- cbrooker@wyattfirm.com -- Wyatt, Tarrant & Combs LLP, Craig H. Smith, Hogan Lovells US LLP, David R. Boyd, Comey & Boyd, E. Desmond Hogan, Hogan Lovells, Elizabeth C. Lockwood, Hogan Lovells US LLP, Geraldine G. Sanchez -- sanchez@rhrsb.com -- Roach Hewitt Ruprecht Sanchez & Bischoff, P.C., Glenn Virgil Whitaker -- gvwhitaker@vorys.com -- Vorys Sater Seymour & Pease, Gregory Haynes -- ghaynes@wyattfirm.com -- Wyatt, Tarrant & Combs LLP, Jaime L. Theriot, Troutman Sanders, LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin -- john.martin@nelsonmullins.com -- Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lisa Fried, Hogan Lovells US LLP, Lucile Hartley Cohen -- lucie.cohen@nelsonmullins.com -- Nelson Mullins Riley Scarborough LLP, Mark A. Stafford -- mark.stafford@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Matthew H. Geelan -- Mgeelan@ddnctlaw.com -- Donahue, Durham & Noonan, P.C., Melissa McCoy Gormly, Vorys, Sater Seymour and Pease LLP, Michael G. Durham, Donahue Durham & Noonan PC, Michael C. Theis, Hogan Lovells US LLP-Denver, Michael J. Tuteur, Foley & Lardner LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Neal F. Perryman, LEWIS RICE, LLC, Patrick Joseph Dempsey, Hogan Lovels US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Robert Armand Perez, Sr., Perez Law Firm Co. LPA, Robert Neal Webner, Vorys Sater Seymour and Pease LLP, Robin J. Samuel, Hogan Lovells USA LLP, Ronald A. Norwood, LEWIS RICE, LLC, Sally F. Zweig, KATZ & KORIN P.C., Stephen A. Loney, Jr., Hogan & Hartson, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell -- david.maxwell@hoganlovells.com -- Hogan Lovells US LLP. Blue Cross of California, doing business as Anthem Blue Cross, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. The Anthem Companies, Inc., Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Blue Cross Life and Health Insurance Company, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. The Anthem Companies of California, Inc., a California corporation, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins & Vassiliki Iliadis. Blue Cross and Blue Shield of Georgia Inc, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Community Insurance Company, doing business as Anthem Blue Cross and Blue Shield, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Rocky Mountain Hospital and Medical Service, Inc., Blue Cross Blue Shield of Michigan, Inc., Anthem Health Plans of New Hampshire, Inc., RightChoice Managed Care, Inc., Blue Cross Blue Shield of Wisconsin & Horizon Healthcare Services, Inc., Defendants, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Insurance Companies, Inc., doing business as Anthem Blue Cross and Blue Shield, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Health Plans of Virginia, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Companies, Inc., doing business as Blue Cross Blue Shield of Wisconsin doing business as Anthem Blue Cross Blue Shield of Kentucky, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Health Plans, Inc, a Connecticut Corporation, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Amerigroup Corporation & Amerigroup Kansas, Inc., Defendants, represented by represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. Anthem Health Plans of Kentucky, Inc., doing business as Anthem Blue Cross Blue Shield, Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells US LLP. MDL 2672: Franchise Dealers Can't Compel Withheld Docs Production ----------------------------------------------------------------- In the case, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. No. 4967. Napleton Orlando Imports, LLC v. Volkswagen Group of America, Inc., No. 16-cv-02086-CRB, MDL No. 2672 CRB (JSC) (N.D. Cal.), Magistrate Judge Jacqueline S. Corley of the U.S. District Court for the Northern District of California denied the Franchise Dealers' motion to compel the withheld production. A group of Volkswagen-branded franchise dealers allege that Robert Bosch, LLC, and Robert Bosch GmbH conspired with Volkswagen to develop the defeat device that Volkswagen used in its "clean diesel" vehicles to cheat on emissions tests. Presently before the Court is a discovery dispute between the Franchise Dealers and Bosch. The Franchise Dealers have served Bosch with subject-matter- specific requests for the production of documents. They also have served Bosch with a request for the production of documents that Bosch previously provided to certain federal and state agencies that are investigating the "clean diesel" emissions fraud. Bosch is in the process of responding to the former requests, but has objected to the latter. With respect to the latter, Bosch asserts that the government investigations are not coextensive with the Franchise Dealers' claims, and that the request would therefore lead to the production of documents that are not discoverable in the case. The Franchise Dealers have moved to compel the withheld production. Specifically, they have moved to compel Bosch to produce documents provided to US, NY and CA government agencies in the United States in connection with investigations of defeat devices installed in Affected Vehicles. Magistrate Judge Corley finds that the Franchise Dealers' request is comparable to the one addressed in King County v. Merrill Lynch & Co. The plaintiffs there filed a securities action against the defendants, and requested that the defendants produce all documents that they had previously provided to certain government entities that were investigating the same conduct. While acknowledging that some portion of documents encompassed by the plaintiffs' request may be relevant, the court reasoned that it had no method of determining which of those documents are relevant, and which are not. As a result, the court denied the request and instructed the plaintiffs to make proper discovery requests, identifying the specific categories of documents sought. The Magistrate Judge agrees with the approach taken in King County, as it avoids the guesswork involved in comparing the scope of an investigation that is not before the Court to the scope of a case that is. Further, under the circumstances of the case, there is little need to engage in this guesswork. Bosch has made clear to the Franchise Dealers and the Court that it will not withhold relevant documents solely because they were previously produced to a government authority. The documents that Bosch produced to the government agencies at issue are therefore not beyond the Franchise Dealers' reach if they are indeed relevant to their case. To be sure, she says it may be less burdensome for the Franchise Dealers to ask for and receive a wholesale reproduction of what Bosch produced in the government investigations. But such an approach makes it difficult to ensure that the scope of discovery is not expanded beyond what is allowed by the Federal Rules. Nor does the need for the government productions outweigh the possible overbreadth, as the Franchise Dealers are well- represented and can fashion their own document requests without relying upon the government productions. If the Franchise Dealers are not satisfied with what they receive from Bosch in response to their subject-matter-specific requests, they may serve additional requests if needed, and to the extent permitted by the federal and local rules. But they are not entitled to complete access to Bosch's prior government productions simply because there is some overlap between their claims and the government investigations. For these reasons, Magistrate Judge Corley accordingly denied the motion to compel. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/P0DnL0 from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. David Fiol, Plaintiff, represented by William M. Audet, Audet & Partners, LLP, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Peter B. Fredman -- peter@peterfredmanlaw.com -- Law Office of Peter Fredman, Robert B. Carey, Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro. Nicholas Allen, Plaintiff, represented by Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice & Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman Reed, PLLP, pro hac vice. Brett Alters, Plaintiff, represented by Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, David S. Stellings, Lieff Cabraser Heimann and Bernstein, Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP, Nicholas Diamand, Lieff Cabraser Heimann and Bernstein LLP, Phong-Chau Gia Nguyen, Lieff Cabraser Heimann & Bernstein, LLP, Tana Lin -- tlin@kellerrohrback.com -- Keller Rohrback LLP & Todd A. Walburg, Lieff, Cabraser, Heimann, Bernstein. Donald Ardine, Plaintiff, represented by Amy Williams-Derry -- awilliams-derry@kellerrohrback.com -- Keller Rohrback L.L.P., Dean Noburu Kawamoto -- dkawamoto@kellerrohrback.com -- Keller Rohrback LLP, Derek William Loeser -- dloeser@kellerrohrback.com -- Keller Rohrback, LLP, Gretchen Freeman Cappio -- gcappio@kellerrohrback.com -- Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Annie Argento, Plaintiff, represented by Amy Williams-Derry, Keller Rohrback L.L.P., Dean Noburu Kawamoto, Keller Rohrback LLP, Derek William Loeser, Keller Rohrback, LLP, Gretchen Freeman Cappio, Keller Rohrback, LLP, pro hac vice, Lynn L. Sarko, Keller Rohrback L.L.P., pro hac vice & Tana Lin, Keller Rohrback LLP. Arkansas State Highway Employees Retirement System, Plaintiff, represented by Jai K. Chandrasekhar -- jai@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, James A. Harrod -- jim.harrod@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, Matthew I. Henzi -- mhenzi@swappc.com -- Sullivan, War, Niki L. Mendoza, Bernstein Litowitz Berger & Grossmann LLP, Ross M. Shikowitz -- ross@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice & Susan Rebbeca Podolsky, The Law Offices of Susan R. Podolsky. Volkswagen Group of America, Inc., Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- chtucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- wlang@wcsr.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, LLC, Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - - Kirkland & Ellis LLP, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and Rice, Howard Feller, McGuireWoods LLP, Hugh J. Bode, Reminger & Reminger Co LPA, J. Randolph Bibb, Jr., Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey, Johns & Bell LTD, Jeffrey L. Chase, Chase Kurshan Herzfeld & Rufin LLC, Jeffrey S. Rugg, Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux, Gibbons PC, John W. Cowden, Baker, Sterchi, Cowden & Ric, LLC-KCMO, John W. Cowden, Baker Sterchi Cowden and Rice LLC, John L. Hone, Lipshultz and Hone Chtd, John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Kerry R. Lewis, Rhodes Hieronymus Jones Tucker & Gable, Kurt E. Lindquist, II, Womble Carlyle Sandridge & Rice, PLLC, Larry Martin Roth, Rumberger, Kirk & Caldwell, PA, Michael D. Begey, Rumberger, Kirk & Caldwell, PA, Michael R. McDonald, Gibbons PC, Natalie Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC, Ronald G. DeWald, Lipshultz and Hone Chtd, Russ Ferguson, Womble Carlyle Sandridge & Rice LLP, Ryan Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Sara Anne Ford, Lightfoot Ffanklin & White LLC, Seth Abram Schaeffer, McGuireWoods LLP, Thomas R. Valen, Gibbons PC, William L. Boesch, Sugarman Rogers Barshak & Cohen, Adam K. Bult, Brownstein Hyatt Farber Schreck, Allison Rachel McLaughlin, Wheeler Trigg O'Donnell LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Anne Katherine Guillory, Dinsmore & Shohl LLP, April L. Watson, Sessions, Fishman & Nathan, Benjamin K. Reitz, Brownstein Hyatt Farber Schreck, Blake Adam Gansborg, Wheeler Trigg O'Donnell, LLP, Brett R. Leland, Verrill Dana LLP, Brian C. Langs, Johnson & Bell LTD, C. Vernon Hartline, Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Carine M. Williams, Sullivan & Cromwell LLP, pro hac vice, Caroline M. Tinsley, BAKER AND STERCHI, LLC, Charles William McIntyre, Jr., McGuireWoods LLP, Charles Pendleton Mitchell, Rumberger Kirk & Caldwell, Christine Kingston, Nelson Mullins Riley & Scarborough LLP, Christopher Edward Tribe, McGuireWoods LLP Gateway Plaza, Dan R. Larsen, Dorsey and Whitney LLP, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, David L. Ayers, Watkins and Eager PLLC, David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David N. May, Bradshaw Fowler Proctor & Fairgrove, David M.J. Rein, Sullivan & Cromwell LLP, David T. Schaefer, Dinsmore & Shohl LLP, Edward W. Hearn, JOHNSON & BELL, PC, Elena Lalli Coronado, Sullivan and Cromwell, Elizabeth Righton Johnson, Balch & Bingham LLP, Emily Anne Ellis, Brownstein Hyatt Farber Shreck, Eric R. Burris, Brownstein Hyatt Farber Schreck, Erin Patricia Mead, Thorn, Gershon, Tymann & Bonanni, LLP, Gail Ponder Gaines, Barber Law Firm PLLC, Garrett L. Boehm, Jr., Johnson & Bell LTD, Harlan I. Prater, IV, Lightfoot, Franklin & White, Hugh Brown McNatt, McNatt, Greene & Peterson, J. Gordon Cooney, Jr., Morgan Lewis & Bockius LLP, James L. Hollis, Balch & Bingham, Jeffrey L. Chase, Herzfeld & Rubin PC, Jimmy B. Wilkins, WATKINS & EAGER, Jo E. Peifer, Lavin, O'Neil, Ricci, Cedrone & DiSipio, John David Ayers, WATKINS & EAGER, PLLC, John D. Donovan, Jr., Ropes and Gray LLP, John Alan Knox, Williams Kastner & Gibbs, John Garrett McCarthy, Sullivan and Cromwell LLP, pro hac vice, John Thomas Prisbe, Venable LLP, Jonathan M. Hoffman, MB Law Group, LLP, Joy Goldberg Braun, Sessions, Fishman, Nathan & Israel, Kenneth Abrams, McGuire Woods LLP, Kevin P. Polansky, Nelson Mullins Riley & Scarborough LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Mark A. Weissman, Herzfeld & Rubin, P.C., pro hac vice, Mary E. Bolkcom, Hanson Bolkcom Law Group, Ltd., Matthew A. Schwartz, Sullivan and Cromwell LLP, pro hac vice, Melissa Fletcher Allaman, Nelson, Mullins, Riley & Scarborough, LLP, Meredith J. McKee, Womble Carlyle Sandridge & RIice, PLLC, Meredith J. McKee, Womble Carlyle Sandridge & Rice, Michael Thad Allen, Day Pitney LLP-HTFD, Michael B. Gallub, Herzfeld and Rubin, pro hac vice, Michael E. Hale, Barber Law Firm PLLC, Michael L. O'Donnell, Wheeler Trigg O'Donnell, LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP, Michael A. Yoshida, MB Law Group, LLP, Mickey W. Greene, Hanson Bolkcom Law Group, Ltd., Miranda Hanley, Smith Welch Webb & White, LLC, Ningur Akoglu, Herzfeld & Rubin PC, Patricia Rodriguez Britton, Nelson Mullins Riley Scarborough LLP, Patrick Demetrios Grindlay, Paul T. Collins, Nelson Mullins Riley & Scarborough LLP, pro hac vice, Paul E.D. Darsow, Hanson Bolkcom Law Group, Ltd., Paul D. Williams, Day Pitney LLP-Htfd-CT, Richard White Crews, Jr., Hartline Dacus Barger Dreyer LLP, Righton Johnson, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Ryan P. McCarthy, Morgan, Lewis & Bockius LLP, Ryan A. Morrison, Dinsmore & Shohl LLP, S. Keith Hutto, Nelson Mullins Riley & Scarborough, Sarah Motley Stone, Womble Carlyle Sandridge & Rice, PLLC, Sharon L. Nelles, Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, pro hac vice, Shawn P. George, George & Lorensen, Stanley Abbott Roberts, McGuireWoods LLP, Stephen D. Bell, Dorsey & Whitney LLP, Steve S. Tervooren, Hughes Gorski Seedorf Odsen & Tervooren LLC, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice, Suhana S. Han, Sullivan and Cromwell LLP, pro hac vice, Sverker K. Hogberg, Sullivan & Cromwell LLP, Thomas R. Ferguson, III, Womble Carlyle Sandridge & Rice, PLLC, Thomas W. Purcell, MB Law Group LLP, William B. Monahan, Sullivan and Cromwell LLP, pro hac vice & William Henry Wagener, Sullivan and Cromwell LLP, pro hac vice. Audi AG, Defendant, represented by Elizabeth L. Deeley -- elizabeth.deeley@kirkland.com - Kirkland & Ellis LLP, Matthew Henry Marmolejo -- mmarmolejo@mayerbrown.com -- Mayer Brown LLP, Michael Howard Steinberg -- steinbergm@sullcrom.com -- Sullivan & Cromwell, LLP, Andrew Brian Clubok - andrew.clubok@kirkland.com - - Kirkland & Ellis, pro hac vice, Andrew R. Levin -- levin@sugarmanrogers.c0m -- Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland - bleland@verrilldana.com -- Verrill Dana LLP, David Maxwell James Rein -- reind@sullcrom.com -- Sullivan & Cromwell LLP, G. Stewart Webb, Jr. -- gswebb@Venable.com -- Venable LLP, Garrett L. Boehm, Jr. -- boehmg@jbltd.com -- Johnson & Bell LTD, J. Gordon Cooney, Jr. -- gordon.cooney@morganlewis.com -- Morgan Lewis & Bockius LLP, James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, John Thomas Prisbe -- jtprisbe@venable.com -- Venable LLP, Laura Kabler Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell LLP, Robert J. Giuffra, Jr. -- giuffrar@sullcrom.com -- Sullivan and Cromwell LLP, Ryan P. McCarthy -- ryan.mccarthy@morganlewis.com - - Morgan, Lewis & Bockius LLP, Sharon L. Nelles -- nelless@sullcrom.com -- Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell -- bell.steve@dorsey.com -- Dorsey & Whitney LLP, Stuart A. Drake -- stuart.drake@kirkland.com -- Kirkland and Ellis LLP, pro hac vice & William B. Monahan -- monahanw@sullcrom.com -- Sullivan and Cromwell LLP. Volkswagen AG, Defendant, represented by Elizabeth L. Deeley, Kirkland & Ellis LLP, Matthew H. Marmolejo, Mayer Brown LLP, Michael H. Steinberg, Sullivan & Cromwell, LLP, Andrew Brian Clubok, Kirkland & Ellis, pro hac vice, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M.J. Rein, Sullivan & Cromwell LLP, G. Stewart Webb, Jr., Venable LLP, John D. Donovan, Jr., Ropes and Gray LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stuart A. Drake, Kirkland and Ellis LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Audi of America LLC, Defendant, represented by Matthew H. Marmolejo, Mayer Brown LLP, Andrew R. Levin, Sugarman Rogers Barshak & Cohen, PC, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, C. Vernon Hartline, Jr., Hartline Dacus Barger Dreyer LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC, David A. Barry, Esq., Sugarman Rogers Barshak & Cohen, David M.J. Rein, Sullivan & Cromwell LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Michael R. Williams, Bush Seyferth & Paige PLLC, Ritchie E. Berger, Esq., Dinse, Knapp & McAndrew, P.C., Robert J. Giuffra, Jr., Sullivan and Cromwell LLP, Sharon L. Nelles, Sullivan & Cromwell LLP, Stephen D. Bell, Dorsey & Whitney LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William B. Monahan, Sullivan and Cromwell LLP. Volkswagen Group of America, a New Jersey corporation, Defendant, represented by P. Arley Harrel, Williams Kastner & Gibbs, PLLC, Gerard Cedrone, Lavin, O'Neil Ricci Cedrone & DiSipio, Kenneth Abrams, McGuire Woods LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Audi of America, Inc., Defendant, represented by Matthew H. Marmolejo, Mayer Brown LLP, Carine M. Williams, Sullivan & Cromwell LLP, pro hac vice, Cheryl A. Bush, Bush, Seyferth & Paige, PLLC, Colin H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, David M.J. Rein, Sullivan & Cromwell LLP, pro hac vice, John H. Tucker, Rhodes Hieronymus Jones Tucker & Gable, Laura Kabler Oswell, Sullivan & Cromwell LLP, Melissa Fletcher Allaman, Nelson, Mullins, Riley & Scarborough, LLP, Michael R. Williams, Bush Seyferth & Paige PLLC, Robert J. Giuffra, Jr., Sullivan and Cromwell LLP & William B. Monahan, Sullivan and Cromwell LLP. Dr. Ing. h.c.F. Porsche AG, Defendant, represented by Abby L. Parsons, King & Spalding LLP, Adam G. Sowatzka, King & Spalding LLP, Alexander K. Haas, King & Spalding LLP, Andrew R. Levin, Sugarman, Rogers, Barshak & Cohen, P.C., Brett R. Leland, David M. Fine, King, Spaulding Law Firm, G. Stewart Webb, Jr., Venable LLP, Garrett L. Boehm, Jr., Johnson & Bell LTD, J. W. Codinha, Nixon Peabody, LLP, James K. Toohey, Johns & Bell LTD, James K. Vines, King & Spalding, John Thomas Prisbe, Venable LLP, Joseph Eisert, King & Spalding LLP, Kenneth Yeatts Turnbull, King & Spalding LLP, Matthew A. Goldberg, DLA Piper LLP, pro hac vice, Matthew A. Holian, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Sheldon T. Bradshaw, KING & SPALDING, Sonya R. Braunschweig, DLA Piper LLP, W. Scott O'Connell, Nixon Peabody LLP, pro hac vice & William F. Kiniry, Jr., DLA Piper LLP, pro hac vice. David Antellocy, Defendant, represented by Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice, Scott Moen, Defendant, represented by Peter B. Fredman, Law Office of Peter Fredman, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP, pro hac vice. Porsche AG, Defendant, represented by Alexander K. Haas, King & Spalding LLP, Christina Courtney Sheehan, Modrall Sperling Roehl Harris & Sisk PA, Joseph Eisert, King & Spalding LLP, Laura Kabler Oswell, Sullivan & Cromwell LLP, Matthew A. Goldberg, DLA Piper LLP, Nathan P. Heller, DLA Piper LLP, Susan Miller Bisong, Modrall Sperling Roehl Harris & Sisk PA & William F. Kiniry, Jr., DLA Piper LLP. Robert Bosch GmbH, Defendant, represented by Matthew D. Slater, Cleary Gottlieb Steen and Hamilton LLP, pro hac vice, Carmine D. Boccuzzi, Jr., Cleary Gottlieb Steen & Hamilton LLP, pro hac vice & David Lloyd Anderson, Sidley Austin LLP. Bay Ridge Volvo-American, Inc, Defendant, represented by Natalie Marie Lefkowitz, Chase Kurshan Herzfeld & Rubin LLC. Audi USA, Defendant, represented by Laura Kabler Oswell, Sullivan & Cromwell LLP. MDL 2795: Related Securities Suits v. CenturyLink Consolidates -------------------------------------------------------------- Judge Michael J. Davis of the U.S. District Court for the District of Minnesota consolidated Civil File No. 18-296 (MJD/KMM), Civil File No. 18-297 (MJD/KMM), Civil File No. 18-298 (MJD/KMM), and Civil File No. 18-299 (MJD/KMM), with the case captioned IN RE CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION, MDL No. 17-2795 (MJD/KMM) (D. Minn.). On June 16, 2017, Bloomberg reported that a former CenturyLink, sales representative, Heidi Heiser, had filed a lawsuit against CenturyLink in Arizona state court because she was fired for blowing the whistle on the telecommunications company's high- pressure sales culture that left customers paying millions of dollars for accounts they didn't request. The whistleblower alleged that CenturyLink engaged in systemic misconduct by signing up and charging customers for services that they did not request and that she was fired days after notifying Chief Executive Officer Glen Post of the alleged scheme. CenturyLink's stock dropped 4.5% from June 15, 2017 to June 16, 2017. On June 19, 2017, Bloomberg reported that a consumer class action complaint had been filed against CenturyLink based on the whistleblower complaint alleging fraud, unfair competition, and unjust enrichment and seeking damages up to $12 billion. CenturyLink stock dropped another $0.36 on June 19, 2017. CenturyLink's 7.6% Senior Notes dropped 6%. In February 2018, the Judicial Panel on Multidistrict Litigation transferred four federal securities actions to the Court for inclusion in MDL No. 2795: Craig v. CenturyLink, Inc., Civil File No. 18-296 (MJD/KMM); Scott v. CenturyLink Inc., Civil File No. 18-297 (MJD/KMM); Thummeti v. CenturyLink, Inc., Civil File No. 18-298 (MJD/KMM); and Inter-Marketing Group USA Inc. v. CenturyLink, Inc., Civil File No. 18-299 (MJD/KMM). At the time of the transfer, there were several outstanding motions. On June 21, 2017, the first securities class action lawsuit based on revelation of the whistleblower's allegations, Thummeti, was filed in the Southern District of New York, on behalf of all persons who purchased or otherwise acquired CenturyLink securities between Feb. 27, 2014 and June 15, 2017. Also on June 21, the Thummeti plaintiff published a notice of pendency on Globe Newswire telling investors who purchased CenturyLink securities that the deadline to seek appointment as the Lead Plaintiff was Aug. 21, 2017. On June 22, the Craig securities class action was filed against CenturyLink in the Southern District of New York on behalf of all individuals and entities who purchased or otherwise acquired CenturyLink common stock on the public market during the Class Period. The Class Period was March 1, 2013, to June 16, 2017. On Aug. 8, based on the parties' stipulation, the Craig case was transferred to the Western District of Louisiana. On Aug. 16, based on the parties' stipulation, the Thummeti case was also transferred to the Western District of Louisiana. On Aug. 15, the Scott case was filed in the Western District of Louisiana against CenturyLink on behalf of all persons and entities who purchased or otherwise acquired CenturyLink securities between March 1, 2013 and June 19, 2017. On Aug. 15, a notice of pendency of the Scott action was published in Business Wire alerting investors who purchased CenturyLink shares between March 1, 2013 and June 19, 2017 that the deadline to move for appointment as Lead Plaintiff was Aug. 21, 2017. At least 10 notices were published alerting investors in all CenturyLink "securities" of the need to file a motion seeking Lead Plaintiff appointment by Aug. 21, 2017. On Aug. 21, 2017, Plaintiffs the State of Oregon ("Oregon"), KBC Asset Management NV ("KBC"), and other groups of investors filed motions seeking consolidation of the securities class actions against CenturyLink and appointment as the Lead Plaintiff. The movants described the class as encompassing purchasers or acquirers of "CenturyLink securities." Oregon included its trading in two CenturyLink bonds (the 5.625% Bonds and the 6.875% Bonds) in the certification attached to its motion. Another movant, KBC, stated that the class in the Related Actions consists of all persons who purchased or otherwise acquired CenturyLink securities, including common stock and notes, during the Class Period. On Oct. 19, 2017, the District Court for the Western District of Louisiana granted the four potential lead Plaintiffs' motions to consolidate the Craig, Scott, and Thummeti cases. On Oct. 20, the court issued an Order appointing Oregon as the Lead Plaintiff in the consolidated cases and denying the competing motions to be appointed the Lead Plaintiff. On Oct. 25, 2017, Plaintiff Inter-Marketing Group USA, Inc. ("IMG") filed a class action securities complaint against CenturyLink in the Southern District of New York. The IMG Complaint asserts securities claims on behalf of investors in a single CenturyLink security, the CenturyLink 7.60% Senior Notes, Series P, due 2039 ("7.60% Senior Notes"), that acquired or purchased the notes during the period March 1, 2013, through June 19, 2017. The IMG Complaint asserts the same misconduct against the same Defendants (CenturyLink, Glen F. Post, III; R. Steward Ewing, Jr.; and David D. Cole) during the same time period and violating the same federal statutes as the previously consolidated complaints. IMG asserts that, when the truth about CenturyLink's operations was disclosed in the June 16, 2017, and June 19, 2017, Bloomberg articles, the price of CenturyLink's 7.6% Senior Notes dropped 6% from the last trading day to June 19, 2017. On Oct. 25, 2017, IMG issued a notice stating that the class action was filed on behalf of purchasers of CenturyLink's 7.60% Senior Notes, Series P, due 2039, and that the deadline to move to be appointed Lead Plaintiff was Dec. 26, 2017. On Dec. 12, 2017, Oregon filed a Motion to Intervene in the IMG case in order to request that the court strike the Lead Plaintiff deadline IMG purported to establish and to require publication of a corrected notice explaining that the deadline to move for Lead Plaintiff appointment had already expired. Oregon has withdrawn its motion to intervene as moot because IMG was the only investor to file a motion seeking Lead Plaintiff appointment in IMG based on the notice published by IMG's counsel. On Dec. 13, 2017, the Defendants' motion to transfer was granted, and the IMG case was transferred to the Western District of Louisiana. On Dec. 21, 2017, Oregon filed a Motion for Consolidation of Related Action, seeking to consolidate the IMG case with the consolidated actions. On Dec. 26, 2017, IMG filed a Motion for Appointment as Lead Plaintiff and Approval of Lead Counsel in the IMG case. On Feb. 8, 2018, the Court ordered the parties to rebrief their motions under Eighth Circuit case law. Judge Davis holds that consolidation is appropriate in the case. The IMG case is virtually identical to the already consolidated cases. It asserts the same legal theories against the same Defendants for the same class period based on the same fraud. The Judge denies IMG's alternative request to appoint separate bond and stock Lead Plaintiffs in a consolidated action. He says appointing two rival lead plaintiffs, particularly when one (Oregon) suffered exponentially greater losses than the other (IMG), would lead to undermining the goal of a cohesive leadership and management group. Oregon has already identified an investor with standing to assert claims based on the 7.60% Senior Notes, and it will include that investor as a named Plaintiff in the consolidated complaint it intends to file. Thus, the interests of the class are fully protected and there is no need to appoint separate leadership to assert the claims that Oregon has already been appointed to pursue. Because the Judge has granted Oregon's motion to consolidate and denied IMG's request for multiple lead plaintiffs within the consolidated cases, IMG's own motion for appointment is moot. He further notes that Oregon clearly has the larger financial interest, with claimed losses totaling more than $6 million, while IMG suffered an exponentially smaller loss of approximately $7,000. Accordingly, based upon the files, records, and proceedings, Judge Davis granted the Motion of Lead Plaintiff Oregon for Consolidation of Related Action, and denied the Motion of Inter- Marketing Group USA, Inc. for Appointment as Lead Plaintiff and Approval of Lead Counsel. Within three weeks of the date of the Order, the Judge directed the Lead Plaintiff to meet and confer with the Defendant and to submit a joint draft case management order, which will include a proposed deadline for filing a consolidated complaint, for the parties' Rule 26(f) conference, and any other pertinent deadlines. He also directed the Lead Plaintiff and the Defendants to meet and confer with the leadership counsel for the Plaintiffs and the Defendant in the CenturyLink sales cases to propose a date for the next joint status conference. A full-text copy of the Court's April 20, 2018 Memorandum of Law and Order is available at https://is.gd/uo3zj8 from Leagle.com. Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by Benjamin Jared Meiselas -- meiselas@geragos.com -- GERAGOS & GERAGOS, pro hac vice, Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- Zimmerman Reed, PLLP, Carolyn G. Anderson -- carolyn.anderson@zimmreed.com -- Zimmerman Reed, William A. McNab, Winthrop & Weinstine, PA, PLLP, Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Gustafson Gluek PLLC, Francois Michel Blaudeau, Southern Institute for Medical &Legal Affairs LLC, Hart L. Robinovitch -- hart.robinovitch@zimmreed.com -- Zimmerman Reed, PLLP, James McDonough, III -- JMcdonough@hgdlawfirm.com -- Heninger Garrison Davis, LLC, Lori G. Feldman, Geragos & Geragos, pro hac vice, Mark J. Geragos -- geragos@geragos.com -- GERAGOS & GERAGOS, pro hac vice, Mark M. O'Mara, O'Mara Law Group, Michelle J. Looby -- mlooby@gustafsongluek.com -- Gustafson Gluek PLLC, Richard M. Hagstrom -- rhagstrom@hjlawfirm.com -- Hellmuth & Johnson & Roxanne Barton Conlin -- efile@roxanneconlinlaw.co -- Roxanne Conlin & Associates, P.C. Defendant's Primary Outside Counsel, Defendant, represented by David M. Aafedt -- daafedt@winthrop.com -- Winthrop & Weinstine, PA, David A. Vogel -- dvogel@cooley.com -- Cooley LLP, pro hac vice, Douglas P. Lobel -- dlobel@cooley.com -- Cooley LLP, pro hac vice, Jeffrey M. Gutkin -- jgutkin@cooley.com -- Cooley LLP, Joseph M. Windler -- jwindler@winthrop.com -- Winthrop & Weinstine, PA & William A. McNab -- wmcnab@winthrop.com -- Winthrop & Weinstine, PA. MENARD INC: Court Stays "Griffith" FLSA Suit -------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, granted Defendant's Motion to Temporarily Stay Case Proceedings in the case captioned DEBRA GRIFFITH, et al., Plaintiffs, v. MENARD, INC., Defendant, Civil Action No. 2:18-cv-81 (S.D. Ohio), pending decision by the United States Supreme Court in Epic Systems Corp. v. Lewis, Case No. 16-285. The Plaintiffs filed their Complaint in this matter against the Defendant, alleging that the Defendant violated the Fair Labor Standards Act (FLSA) and similar state statutes. Specifically, the Plaintiffs allege that Defendant failed to pay its hourly, non-exempt employees for all hours worked. The Plaintiffs assert that a stay in this case would severely prejudice a certain sub-class of the Plaintiffs and Putative Class Members. Specifically, the Plaintiffs posit that some potential opt-in plaintiffs and Putative Class Members (Non- Arbitration Plaintiffs) did not sign arbitration agreements thereby mooting the applicability of any decision in Epic Systems and that under the FLSA, the statute of limitations would continue to run during any stay. The Defendant asserts that a stay of these proceedings will prevent confusion and unnecessary expense, arguing that the outcome of Epic Systems will directly impact the Court's determination of the Plaintiffs' class status for the purposes of conditional certification. The Defendant explains that the parties and the Court could engage in efforts that would need to be undone if the Supreme Court holds the Agreements are enforceable, thereby wasting resources and causing confusion among both existing plaintiffs and potential opt-in plaintiffs. Initially, the Court notes that the Plaintiffs do not oppose a stay of proceedings as related to claims by the Plaintiffs who signed the Agreements containing both the individual arbitrations clause and the class and collective actions waivers. Rather, the Plaintiffs only oppose a stay of proceedings with respect to potential opt-in plaintiffs and the Non-Arbitration Plaintiffs who purportedly would not be bound by any decision in Epic Systems. The Court finds there is good cause for a stay of proceedings as to all Plaintiffs and Putative Class Members in this case. Accordingly, the Court does not reach the question of whether any class or collective action waivers not containing arbitration agreements would be bound by a decision in Epic Systems. Acknowledging that the Supreme Court's decision in Epic Systems is very likely to resolve an issue that is central to this case, the Court is persuaded that a stay is warranted. The Court first notes that this case cannot be properly disposed of, in its entirety, without a decision in Epic Systems. The Supreme Court is set to resolve the question of whether agreements such as those at issue here are valid and enforceable. The enforceability of the Agreements is central to this case, as it directly relates to this Court's jurisdiction over the Plaintiffs' claims. Because this Court has jurisdiction over the Plaintiffs' claims only if the Supreme Court finds such Agreements are invalid, to take any action before the issue is resolved could require the Court to undo significant efforts undertaken in the interim. In addition, the Supreme Court's decision in Epic Systems would preclude the parties from disputing the enforceability of the Agreements, thereby simplifying the issues before this Court. The Court therefore finds that the first and fourth factors weigh heavily in favor of granting a stay. Accordingly, the Court orders all proceedings in this case stayed until the Supreme Court issues its decision in Lewis v. Epic Systems, Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted, 137 S.Ct. 809 (2017), or otherwise disposes of that case. A full-text copy of the District of Court's April 23, 2018 Opinion and Order is available at https://tinyurl.com/y7sp45uw from Leagle.com. Debra Griffith, Plaintiff, represented by Robert E. DeRose, II - bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Austin Winters Anderson, ANDERSON2X, PLLC, pro hac vice, Lauren Elizabeth Braddy, Anderson2X, PLLC, pro hac vice, Molly Kathleen Tefend -- mtefend@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin Derose Wentz, LLP & William Clifton Alexander, ANDERSON2X, PLLC, pro hac vice. Menard, Inc., Defendant, represented by James Edward Davidson -- thyrza.skofield@icemiller.com -- Ice Miller LLP, Daniel Culicover -- daniel.culicover@icemiller.com -- Ice Miller LLP & Paul L. Bittner -- paul.bittner@icemiller.com -- Ice Miller LLP. MENDEL MUFFINS: Underpays Factory Bakers, "Loja" Suit Alleges ------------------------------------------------------------- Mario Loja, individually and on behalf of all others similarly situated, Plaintiff v. BRANDON J. HILLMENDEL'S MUFFINS AND STUFF, INC.; BEST BITES DISTRIBUTIONS, INC., and GERSHON NEUSTADT, Defendants, Case No. 2:18-cv-09248-ES-MAH (D.N.J., May 15, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal, and rest periods. Mr. Loja was employed by the Defendants as factory baker from April 2017 to December 2017. Brandon j. Hillmendel's Muffins and Stuff, Inc. is a New Jersey corporation engaged in the bakery and baked good distribution business. [BN] The Plaintiff is represented by: Mitchell Schley, Esq. LAW OFFICES OF MITCHELL SCHLEY, LLC 197 Route 18 South South Tower, Suite 3000 East Brunswick, NJ 08816 Telephone: (732) 325-0318 E-mail: mschley@schleylaw.com - and - Louis Pechman, Esq. PECHMAN LAW GROUP PLLC 488 Madison Avenue, 17th Floor New York, NY 10022 Telephone: (212) 583-9500 E-mail: pechman@pechmanlaw.com MIAMI-DADE COUNTY, FL: Carillion Condo Owners Can't Sue as Class ---------------------------------------------------------------- Michael L. Hyman, Esq. -- mhyman@srhl-law.com -- of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, in an article for Law.com, wrote that condominium associations regularly represent all of their unit owners as a consolidated class of litigants in cases challenging their local county ad valorem property tax appraisal assessments. However, a vital segment of the representation that associations provide their owners in such actions may soon be coming to an end as a result of a recent Florida appellate court ruling. The ruling in March by the Third District Court of Appeal in Central Carillon Beach Condominium Association v. Garcia surprised many of the attorneys who focus on this highly specialized area involving condominium and real estate tax law. It found that unit owners cannot join together as a class to respond to a county appraiser's appeal of an assessment reduction because the law requires that the defendant in such appeals must be the taxpayer. The result could be deleterious for Florida property owners and circuit courts, and it demands a legislative fix during next year's session. The case pitted two Miami Beach condominium associations against the Miami-Dade County property appraiser and the county's legal department. It began in 2015 when the Central Carillon Beach Condominium Association and the 2201 Collins Avenue Condominium Association both filed a single joint petition with the Miami- Dade County Value Adjustment Board challenging the county appraiser's proposed assessments for all of the units in their buildings. The conditions for such joint petitions under the ad valorem tax statutes, which include owner opt-out notices and a determination by the appraiser that the units are substantially similar, were satisfied, and the petition was heard and ruled upon by the VAB. The board's ruling awarded substantial reductions in assessed values for the unit owners (approximately 20 percent for the Central Carillon owners and 40 percent for 2201 Collins), and the county appraiser subsequently appealed the VAB's determinations to the circuit court. However, each of the appraiser's suits named individual unit owners as defendants, rather than suing the associations on behalf of all of their unit owners. The associations responded by moving to dismiss and seeking joint representation for all of the owners as a defendants' class action, and the appraiser countered by moving to default all of the unit owners for failing to file individual responsive pleadings. In separate but nearly identical orders, the trial court denied each association's motion to dismiss and also denied their motions for certification of the unit owners as a defense class. In affirming the trial court's decision, the Third DCA panel conceded that allowing an association to represent the interests of its hundred-plus unit owners in a county appraiser's appeal of a VAB reduction determination is ". . . eminently logical. If a joint petition can be pursued before the VAB, why shouldn't a joint defense be allowed in the appraiser's appeal from the VAB's determinations?" The judges found the answer in the plain language of the statute governing parties to tax suits stating that the "taxpayer" shall be the party defendant in an action brought by the county property appraiser to appeal a decision of the VAB. The term taxpayer is defined to mean "the person or other legal entity in whose name property is assessed, including an agent of a timeshare period titleholder," so the law dictates that the individual unit owners must be the defendants and not the associations, which do not pay the taxes in question. The panel disagreed with the associations' argument that the taxpayer defendant requirement is contrary to the specific rights of collective representation given to them under the state's condominium laws. The law states that associations may "institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners including . . . protesting ad valorem taxes on commonly used facilities and on units." It found that the associations in this case had protested the ad valorem taxes administratively on behalf of all units as the law allows, but the lawsuits brought by the county property appraiser against the individual unit owners are not "protests" but rather judicial review proceedings in which the unit owners are defendants. The opinion concludes: "Although we appreciate the associations' arguments that judicial efficiency would be better served by allowing the associations to represent the 140 (Central Carillon) or 180 (2201 Collins Avenue) unit owners as a defense class in the lawsuits brought by the appraiser, those arguments must be presented to the legislature rather than the courts if they are to be effectual." This appellate ruling, which appears to be the first on this issue, could present a significant windfall for county property appraisers and their collections efforts. The appraisers understand that it will present challenges for all of the unit owners to respond to appeals of VAB decisions individually rather than en masse through their associations. They will adhere to the new playbook established by this ruling of issuing these suits against the individual unit owners rather than the associations, and the state's other courts are likely to follow the Third DCA's reasoning and place the onus on the owners rather than the associations to defend their reduced property tax assessments. The looming prospect of hundreds of hearings featuring practically identical pleadings by all of the unit owners in these appeals of VAB decisions will clearly be a daunting one for the state's courts, as the Third DCA panel understands all too well given its statement that those arguments for judicial efficiency must be presented to the state's lawmakers rather than the judiciary. Legislators should take note of this ruling and simply ratify during next year's session an amendment to the statute to allow associations to represent their taxpayer unit owners as a defense class in such appeals by county property appraisers. [GN] MICROSOFT CORP: Judge Finds "Fatal" Flaw in Discrimination Case --------------------------------------------------------------- Dina Bass and Margaret Cronin Fisk, writing for Bloomberg News, report that Microsoft Corp. women engineers seeking to pursue gender-discrimination claims as a group were told by a judge there may be a "fatal" flaw in their case. A 2011 decision by the U.S. Supreme Court requires plaintiffs to point to a common corporate policy or action that affected the women adversely, U.S. District Judge James L. Robart said on June 11 at a hearing in Seattle about whether to let the case proceed as a class action. He seemed skeptical about the Microsoft women's ability to find commonality. According to the judge, one of the women's attorneys appeared to argue that women at the tech giant were disadvantaged relative to men because there was a lack of uniformity and management oversight in performance evaluations. Applying that contention to the legal standard set by the Supreme Court is "fatal to your class," Judge Robart said. When plaintiff lawyer Kelly Dermody said there wasn't enough uniform guidance for managers at Microsoft, Judge Robart interjected: "Counselor, didn't you just drive a wooden stake through the heart of your argument? You just told me there's no commonality because there's no common criteria." The complaint filed almost three years ago alleges that Microsoft discriminated against women engineers in pay and promotions. The proposed class action would include more than 8,630 women in those high-level positions from Sept 16, 2012, to the present. Microsoft has denied any discrimination and has opposed class certification. Microsoft has made "significant progress" in recent years in ensuring a diverse and inclusive workplace, the company said in an emailed statement before the hearing. "But even as we work on these broader issues, it is clear we don't discriminate on pay and promotions." [GN] MIDLAND CREDIT: Brecher Sues over Debt Collection Practices ----------------------------------------------------------- SARA BRECHER, individually and on behalf of all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC.; MIDLAND FUNDING, LLC; and ENCORE CAPITAL GROUP, INC., Defendants, Case No. 1:18-cv-03142-ERK-JO (E.D.N.Y., May 29, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc. [BN] The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com MIDLAND FUNDING: Sandoval Alleges Wrongful Debt Collection ---------------------------------------------------------- GEORGINA C. SANDOVAL, individually and on behalf of all others similarly situated, Plaintiff v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC.; and JOHN DOES 1 to 10, Defendants, Case No. 2:18-cv-09396-SDW-LDW (D.N.J., May 17, 2018), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case was assigned to Judge Susan D. Wigenton and referred to Magistrate Judge Leda D. Wettre. Midland Funding LLC provides debt collection services. The company was incorporated in 2005 and is based in San Diego, California. Midland Funding LLC operates as a subsidiary of Midland Portfolio Services, Inc. [BN] The Plaintiff is represented by: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Ave Ste 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 Facsimile: (201) 273-7117 E-mail: ykim@kimlf.com MIDLAND FUNDING: Court Certifies Class in "Wheeler" FDCPA Suit -------------------------------------------------------------- In the case, KEVIN WHEELER, on behalf of himself and a putative class of others similarly situated, Plaintiff, v. MIDLAND FUNDING LLC, MIDLAND CREDIT MANAGEMENT, INC., and ENCORE CAPITAL GROUP, INC., Defendants, Case No. 15 C 11152 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted Wheeler's Renewed Motion for Class Certification with a modified class definition. Sometime in 2015, Wheeler noticed that MCM was pulling his credit report. He called and MCM stated it was attempting to collect an alleged credit card balance and offered Wheeler a 40% discount to settle that debt. Subsequently, on Oct. 4, 2015, Wheeler noticed that MCM had pulled his credit report again. So Wheeler again contacted MCM and a representative directed him with an account number to obtain information about his debt from MCM's website. MCM's website indicated: (1) that Wheeler's last payment on the debt was on Sept. 18, 2009; (2) that the original creditor had given up on being repaid as of April 30, 2010; (3) a settlement offer whereby the Plaintiff would save 40%; and (4) notice that MCM was not obligated to renew its settlement offer. The website did not indicate that the statute of limitations on Wheeler's debt had expired. Because Illinois' statute of limitations on his credit card debt had expired, Wheeler asserts that his debt could not be forcibly collected and that the Defendants violated the Fair Debt Collection Practices ACT ("FDCPA") and related rules because they failed to inform him of that fact. He also alleged that the Defendants regularly attempt to collect debts from other debtors where the statute of limitations on the debt has expired. As a result, Wheeler's now seeks to certify and represent a class of individuals who received similar treatment allegedly in violation of the FDCPA. The Defendants oppose certification as improper arguing Wheeler lacks standing to assert his FDCPA claims and has failed to meet the requirements of Federal Rule of Civil Procedure 23. Judge Kendall finds that the Plaintiff has satisfied the Rule 23(a) and Rule 23(b)(3) requirements. The Judge also finds that Wheeler's class definition is based on objective criteria: the identified group are those that accessed the MCM website whose last payment on debt was over five years old; the time-frame is includes persons who accessed the website on or after a date one year prior to Dec. 11, 2014 and up to Dec. 6, 2015; the particular location is any person who is an Illinois resident who accessed the MCM website; and the particular way is similarly access to the website. Accordingly, she says Wheeler satisfies all of the standards enunciated under Rule 23 and the class definition will be defined, with minor adjustments by the Court, as all individuals with Illinois addresses (b) who accessed the MCM web site (c) and were offered a settlement or discount (d) on a credit card debt on which the last payment had been made more than five-years prior to the accessing (e) where the date of access was on or after a date one year prior to the filing of the action and on or before Dec. 6, 2015. For the reasons mentioned, Judge Kendall granted Wheeler's Renewed Motion for Class Certification. A full-text copy of the Court's April 24, 2018 Memorandum Opinion and Order is available at https://is.gd/k2jGSj from Leagle.com. Kevin Wheeler, on behalf of plaintiff and the class members described herein, Plaintiff, represented by represented by Daniel A. Edelman -- dedelman@edcombs.com -- Cassandra P. Miller -- cmiller@edcombs.com -- Michelle A. Alyea -- malyea@edcombs.com -- at Edelman, Combs, Latturner & Goodwin LLC. Midland Funding LLC, Midland Credit Management, Inc. & Encore Capital Group, Inc., Defendants, represented by Heather L. Kramer -- hkramer@dykema.com -- Theodore Wilson Seitz -- tseitz@dykema.com -- Todd A. Gale -- tgale@dykema.com -- at Dykema Gossett PLLC. MIDTOWN CATCH CORP: Underpays Delivery Worker, Suit Alleges ----------------------------------------------------------- IME DIAZ-CABALLERO, individually and on behalf of others similarly situated, Plaintiff v. MIDTOWN CATCH CORP. (D/B/A MIDTOWN CATCH), MICHAEL CIOFFI and JOSEPH POLIZZI, Defendants, Case No. 1:18-cv-04672 (S.D.N.Y., May 25, 2018) is an action against the Defendants for unpaid overtime hours, minimum wages, wages for missed meal and rest periods pursuant to the Fair Labor Standards Act and New York Labor Law. The Plaintiff Diaz-Caballero was employed by the Defendants as delivery worker in New York, from August 2016 to July 2017. Midtown Catch Corp. d/b/a Midtown Catch, is a corporation organized under the laws of the State of New York. The Company owns, operates, or controls a seafood market, located at 405 East 57th Street, New York NY 10022. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MINNESOTA: 8th Cir. Affirms Dismissal of "Foster" Suit ------------------------------------------------------ Judge James B. Loken of the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of the district court granting the Defendants' motion to dismiss the case, Sheila Foster, on behalf of herself and all others similarly situated, Plaintiff- Appellant, v. State of Minnesota, et al., Defendants-Appellees, Case No. 17-1177 (8th Cir.). In 1998, the State of Minnesota, through its Attorney General, entered into a court-approved Settlement Agreement in which the State released and forever discharged tobacco companies from claims that they violated Minnesota consumer protection statutes in exchange for substantial periodic settlement payments. In 2001, Gregory Curtis filed a class action alleging that one of the companies had violated several Minnesota consumer protection statutes by marketing "light" cigarettes as a safer alternative to regular cigarettes. The Supreme Court of Minnesota eventually dismissed the complaint, concluding (i) that the Attorney General was authorized to sue the tobacco companies under Minn. Stat. Section 8.31, subd. 3a, and to settle consumer protection claims asserted by the State, acting as representative of Minnesota citizens; and (ii) that the 1998 Settlement Agreement's "broad and comprehensive" release expressly released and barred the class members' consumer protection claims. In 2014, Kristen Harne and Foster filed a class action in Minnesota district court against the State of Minnesota, the Attorney General, and the Commissioner of Management and Budget (acting in their official capacities). Count I alleged that the Defendants' failure to pay class members a portion of the proceeds of the 1998 Settlement Agreement constituted an "inverse condemnation" in violation of Article I, Section 13, of the Minnesota Constitution. Count II alleged that the same conduct constituted a taking of private property without just compensation in violation of the Fifth Amendment of the United States Constitution. Both Counts sought just compensation relief. The Minnesota trial court dismissed the action, concluding that both claims were time-barred under the applicable Minnesota six- year statute of limitations, and that no taking had occurred. The Minnesota Court of Appeals affirmed, concluding both claims were time-barred by Section 541.05. The Supreme Court of Minnesota denied review. In 2016, Foster filed the federal class action complaint against the Harne Defendants under 42 U.S.C. Section 1983, asserting that the State's failure to share annual payments under the Settlement Agreement constitutes a taking in violation of the Fifth Amendment. The district court granted the Defendants' motion to dismiss, concluding that Foster's Fifth Amendment claim is barred by res judicata because the same claim was raised and rejected in Harne. Alternatively, the court ruled that this federal claim is time-barred under Minnesota law. Foster appeals. Reviewing the grant of a Rule 12(b)(6) motion de novo, Judge Loken agrees with the district court that the Fifth Amendment claim is barred by res judicata and therefore affirmed. See Laase v. Cty. of Isanti, 638 F.3d 853, 856 (8th Cir. 2011) (standard of review).2 He explains that in Minnesota, res judicata bars a subsequent claim when: (1) the earlier claim involved the same claim for relief; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full and fair opportunity to litigate the matter. Here, he says all four elements are satisfied. First, Foster's takings claim in federal court is identical to the federal takings claim asserted in Harne -- that the State by entering into a Settlement Agreement in which it released Foster's claims under Minnesota consumer protection statutes while refusing to share the monetary proceeds of that settlement violated the Fifth Amendment by taking private property without just compensation. Second, Harne involved the same parties defendant. Third, under Minnesota law, the dismissal of the claims in Harne as time- barred was a final judgment on the merits. Fourth, Foster and Harne actually litigated their federal claims in Harne. Foster argues that applying res judicata to bar her federal claim based on the prior Harne litigation violates the rule that claims are not considered the same cause of action if the right to assert the second claim did not arise at the same time as the right to assert the first claim. The Judge disagrees saying the state law inverse condemnation claim arose at that time, and Williamson County did not preclude Foster from also challenging the constitutionality of that taking under the Fifth Amendment in state court. Foster further argues that she lacked full and fair opportunity to litigate her federal takings claim because the Minnesota Court of Appeals dismissed the claim as untimely under what Foster argues was an inapplicable state statute-of-limitations. The Judge finds that there can be no doubt that Foster's Fifth Amendment claim was subject to the same six-year statute of limitations as her inverse condemnation claim under the Minnesota Constitution. The Minnesota Court of Appeals expressly dismissed both claims on the merits as time-barred. Foster cites no significant procedural limitations in the prior proceeding that denied a full and fair opportunity to litigate the federal takings claim she asserted. Finally, invoking the principle that res judicata is a flexible doctrine that should not be applied to "work an injustice," Foster argues that applying claim preclusion here works an injustice because it would "effectively strip federal courts of jurisdiction over claims involving the U.S. Constitution's Takings Clause." Judge Loken rejects the contention that litigating a federal takings claim that is based on state government action in state court works an injustice. For these reasons, Judge Loken affirmed the judgment of the district court. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/cD4qls from Leagle.com. Douglas Micko -- micko@teskemicko.com -- for Plaintiff-Appellant. Joseph Goldberg -- jg@fbdlaw.com -- for Plaintiff-Appellant. Richard M. Hagstrom -- rhagstrom@hjlawfirm.com -- for Plaintiff- Appellant. Vildan Aksoz Teske -- teske@teskemicko.com -- for Plaintiff- Appellant. Dianne M. Nast -- dnast@nastlaw.com -- for Plaintiff-Appellant. Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- for Plaintiff-Appellant. Mark A. Wendorf -- m.wendorf@rwblawfirm.com -- for Plaintiff- Appellant. Michael R. Cashman -- mcashman@hjlawfirm.com -- for Plaintiff- Appellant. Oliver J. Larson -- oliver.larson@ag.state.mn.us -- for Defendant-Appellee. Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- for Plaintiff-Appellant. Garrett D. Blanchfield, Jr. -- g.blanchfield@rwblawfirm.com -- for Plaintiff-Appellant. Jeffery Thompson -- jeffery.thompson@ag.state.mn.us -- for Defendant-Appellee. Roberta A. Yard -- r.yard@rwblawfirm.com -- for Plaintiff- Appellant. Patrick W. Michenfelder -- pat@throndsetlaw.com -- for Plaintiff- Appellant. Patrick Howard -- phoward@smbb.com -- for Plaintiff-Appellant. Simon Bahne Paris -- sparis@smbb.com -- for Plaintiff-Appellant. Charles J. Kocher -- ckocher@smbb.com -- for Plaintiff-Appellant. Joseph C. Bourne -- jbourne@gustafsongluek.com -- for Plaintiff- Appellant. Alethea Marie Huyser -- alethea.huyser@ag.state.mn.us -- for Defendant-Appellee. Erin Burns -- eburns@nastlaw.com -- for Plaintiff-Appellant. Frank T. Davis -- ftd@fbdlaw.com -- for Plaintiff-Appellant. Marisa Katz -- katz@teskemicko.com -- for Plaintiff-Appellant. Kenneth A. Wexler -- kaw@wexlerwallace.com -- for Plaintiff- Appellant. Edward A. Wallace -- eaw@wexlerwallace.com -- for Plaintiff- Appellant. MONSTER INC: Settles Class Action Over HDMI Cable Bandwidth ----------------------------------------------------------- Attorney Thomas Zimmerman of the Chicago-based Zimmerman Law Offices reached a nationwide settlement in a class action lawsuit on behalf of purchasers of Monster HDMI cables with an advertised bandwidth exceeding 10.2 Gigabits per second ("Gbps") between August 25, 2011 and March 6, 2018. The class action lawsuit against Monster, Inc., Best Buy Stores, L.P., and BestBuy.com, LLC challenged representations that were made on the packaging of certain Monster high speed HDMI cables. The lawsuit alleges that representations on the packaging induced consumers to purchase higher bandwidth, and thus more expensive, HDMI cables than they needed to make their televisions work. According to the complaint, although an HDMI cable with a bandwidth of 10.2 Gbps is sufficient to make 1080p and 4k televisions work, Monster represented on certain of its cable packaging that these products "require" more expensive higher bandwidth cables. The settlement provides class members with the choice of three benefit options: Option A (monetary payment), Option B (monetary payment and replacement cable), and Option C (Monster online store credit). The monetary benefits range in value from $10 to $35 in cash or credit, depending on which Monster HDMI cable was purchased. A website has been set up at www.HDMIcablesettlement.com, where class members can obtain information about the settlement, and submit a claim online. Mail-in claim forms can also be downloaded from the website. Claims must be submitted online or postmarked by July 23, 2018. Relevant court documents, including the settlement agreement, are available at the settlement website, and a claim form can be submitted at https://hdmicablesettlementclaim.com/ Contacts: Thomas A. Zimmerman, Jr. Zimmerman Law Offices, P.C. 77 West Washington Street, Suite 1220 Chicago, Illinois 60602 Telephone: (312) 440-0020 Email: tom@attorneyzim.com www.attorneyzim.com [GN] MOUNTAIRE FARMS: Responds to Wastewater Violations Class Action --------------------------------------------------------------- WBOC16 reports that Mountaire Farms is firing back against lawyers who have filed a class-action lawsuit stemming from wastewater violations at its Millsboro processing plant. In a statement, the company said it had not seen the complaint filed on June 13. But Mountaire is taking aim at what it calls a media blitz by the plaintiffs' attorneys, Baird Mandalas Brockstedt and its out of state partner, Schochor, Federico & Staton, who held a noon press conference announcing the filing. Mountaire called a press conference "a publicity stunt by a group of opportunistic lawyers hoping to cash in on a problem that has already been solved through a consent decree with the Delaware Department of Natural Resources and Environmental Control." The company says lawyers are hoping to cash in on a problem that has already been solved through a consent decree with Delaware environmental officials. Mountaire also says elevated levels of nitrates in groundwater is a common condition in Sussex County that predates the arrival of the processing facility in 2000. The company said it expects to be served a copy of the lawsuit soon and will "and will vigorously defend the allegations in court as well as thoroughly question the alleged experts." Mountaire said it will have further comment once it has the opportunity to read the complaint in full. [GN] MOUNTAIRE FARMS: Baird Mandalas, Schochor File Class Action ----------------------------------------------------------- Mallory Metzner, writing for WRDE, reports that the Delaware law firm of Baird Mandalas Brockstedt, LLC in association with the Maryland firm of Schochor & Staton, P.A. filed a class action lawsuit listing multiple counts against Mountaire Farms this morning. Mountaire is being accused of including negligence, recklessness, trespassing, and unjust enrichment. Chase Brockstedt opened up the press conference by stating, "The filing this morning was the result of countless hours of investigation and research over the last six months to understand the scope and the severity of the contamination caused by Mountaire's wrongful discharge of its wastewater and sludge and its air emissions." Mountaire disposes of waste from its 9 million gallon septic tanks on four croplands and 1 forest by irrigating more than 900 acres of croplands. Sludge disposal is applied across 300 acres of forests and croplands in the Millsboro area. These septic tanks are kept uncovered and were emptying into a lagoon before being sprayed out into the fields. The two law firms allege that the disposal of billions of gallons of highly contaminated wastewater and liquified sludge has caused nitrates and other contaminants to spread for miles throughout the Millsboro area. While this case is directed at the Millsboro plant, the Selbyville plant is indirectly affected just by sending its waste to Millsboro. A class action brings everyone together for judicial economy. Instead of having 700 individual cases, all of the residents affected by contaminated drinking water, health concerns, and air pollution are coming together to demand Mountaire stop polluting the Millsboro area and compensate those who are affected. According to the press release by Baird Mandalas Brockstedt on June 13th, 2018, The lawsuit intends to require Mountaire to: stop polluting the Millsboro area, overhaul its wastewater treatment plant and discharge processes, provide clean and safe drinking water to affected residents, remediate the groundwater and clean up its mess, compensate affected residents for their loss of property values, and compensate those suffering sicknesses caused by the exposure to elevated nitrates, hydrogen sulfide, ammonia, and other contaminants. Mountaire's response to the press conference is that it was a publicity stunt by a group of lawyers hoping to cash in on a problem that has already been solved by a consent decree with DNREC. Mountaire says, "as we have stated many times previously, elevated levels of nitrates in Sussex County is a very common, widespread environmental condition that has existed for many decades, way before the arrival of Mountaire and certainly did not occur just in the past seventeen years." What has been contaminated can't be undone, but Mountaire can start meeting the limits for nitrate levels moving forward. This class action lawsuit is ordering a $150 million remediation process. Compensating residents could cost well into the hundred millions. DNREC says once Mountaire's wastewater treatment plant upgrades are complete, its shallow production wells will be relocated and a net reduction of nitrates in the ground water will eventually be reached. Mountaire expects to be served a copy of this lawsuit soon and will vigorously defend the allegations in court as well as thoroughly question the alleged experts. A further comment can be expected once they've reviewed the entire complaint. [GN] NATIONAL COLLEGIATE: Removes "Fischer" Suit to E.D. New York ------------------------------------------------------------ The Defendants in the case captioned as, ANDREW FISCHER, individually an on behalf of all others similarly situated, Plaintiff v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3; NATIONAL COLLEGIATE FUNDING, LLC; TRANSWORLD SYSTEMS, INC.; VANTAGE CAPITAL GROUP, LLC; and RUBIN & ROTHMAN, LLC, Defendants, filed a notice to remove the lawsuit from the Supreme Court of Kings County, New York (Case No. 524868/2017) to the U.S. District Court for the Eastern District of New York on May 14, 2018. The removed case is now assigned Case No. 1:18-cv-02857- PKC-JO (E.D.N.Y., May 14, 2018).[BN] The Defendants are represented by: Aaron R. Easley, Esq. SESSIONS FISHMAN NATHAN & ISRAEL, LLC 3 Cross Creek Drive Flemington, NJ 08822-4938 Telephone: (908) 237-1660 Facsimile: (908) 237-1663 E-mail: aeasley@sessions.legal NATIONAL CREDIT: Made Unsolicited Calls, "Aleksanian" Suit Claims ----------------------------------------------------------------- LOLITA ALEKSANIAN, individually and on behalf of all others similarly situated, Plaintiff v. NATIONAL CREDIT ADJUSTERS, L.L.C., and DOES 1 through 10, Defendants, Case No. 2:18-cv-04481 (C.D. Cal., May 24, 2018) alleges that Defendant has made unsolicited calls in violation of the Telephone Consumer Protection Act. The Plaintiff alleges that she received numerous telemarketing/solicitation calls from the Defendant using an automatic telephone dialing system or an artificial or prerecorded voice, without her prior express consent. National Credit Adjusters, LLC engages in the procurement of delinquent account receivables and helps creditors liquidate these receivables through extensive training, innovation, automation and analytics. The company was founded in 2001 and is based in Hutchinson, Kansas. National Credit Adjusters, LLC operates as a subsidiary of Fourth Avenue Holding, LLC. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com NEW YORK: EMS Union Sues Fire Dept. over Promotional Practices -------------------------------------------------------------- LOCAL 3621, EMS OFFICERS UNION, DC-37, AFSCME, AFL-CIO, individually and on behalf of its members, Renae Mascol, and Luis Rodriguez, similarly situated, Plaintiffs v. CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, and DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, John and Jane Does 1-20, Defendants, Case No. 1:18-cv-04476 (S.D.N.Y., May 21, 2018) to secure monetary, injunctive and declaratory relief for violations of the Civil Rights Act, New York State Human Rights Law, New York City Human Rights Law. According to the complaint, the Defendants' actions in their use of a subjective promotional process for applicants in the Emergency Medical Service Bureau of the New York City Fire Department, where more objective processes exist, has resulted in disparate and discriminatory promotional practices. These practices have adversely affected the employment and promotional opportunities of members who belong to the protected classes despite having the requisite skills, training, and expertise. New York City comprises 5 boroughs sitting where the Hudson River meets the Atlantic Ocean. At its core is Manhattan, a densely populated borough that's among the world's major commercial, financial and cultural centers. Its iconic sites include skyscrapers such as the Empire State Building and sprawling Central Park. Broadway theatre is staged in neon-lit Times Square. [BN] The Plaintiff is represented by: Yetta G. Kurland, Esq. THE KURLAND GROUP 160 Broadway, East Building, 11th Floor New York, NY 10038 Telephone: (212) 253-6911 Facsimile: (212) 614-2532 E-mail: Kurland@kurlandgroup.com NEW YORK, NY: Arrestees Claim their Arrest Info Illegally Used --------------------------------------------------------------- R.C., J.J., and A.G., suing under pseudonyms, on behalf of themselves and all others similarly situated, Plaintiffs, v. The City of New York and James P. O'Neill, New York City Police Department Commissioner, in his official capacity, Defendants, Case No. 153739/2018, (N.Y. Sup., April 24, 2018), seeks declaratory and injunctive relief for violation of Criminal Procedure Law. Plaintiffs have arrests that have been terminated in their favor. The complaint says records of those arrests are subject to sealing, and photographs and fingerprints taken in connection with those arrests are subject to return or destruction by the NYPD under Criminal Procedure Law. However, they continue to use and disclose said arrest information for law enforcement purposes without first obtaining a court order, argue the Plaintiffs. [BN] Plaintiff is represented by: Jenn Rolnick Borchetta, Esq. Johanna B. Steinberg, Esq. Niji Jain, Esq. Shakeer Rahman, Esq. Annette Lee, Esq. THE BRONX DEFENDERS 360 East 161st Street Bronx, NY 10451 Tel: (718)838-7881 - and - Jonathan S. Kolodner, Esq. Sharon L. Barbour, Esq. Martine B. Forneret, Esq. Alexandra K. Theobald, Esq. Eric Boettcher, Esq. Pekham Pal, Esq. Michael Cinnamon, Esq. CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 Tel: (212) 225-2000 NEW YORK, NY: Seeks 2nd Cir. Review of Judgment in "Nnebe" Suit --------------------------------------------------------------- Defendants Elizabeth Bonina, City of New York, Matthew Daus, Joseph Eckstein, Charles Fraser and New York City Taxi and Limousine Commission filed an appeal from the District Court's amended opinion order and judgment dated April 26, 2018, in the lawsuit styled Nnebe, et al. v. Daus, et al., Case No. 06-cv- 4991, in the U.S. District Court for the Southern District of New York (New York City). Matthew Daus was the chairperson of the NYC Taxi and Limousine Commission. The appellate case is captioned as Nnebe, et al. v. Daus, et al., Case No. 18-1254, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter on May 8, 2018, the Plaintiffs filed an appeal from the District Court's amended opinion, order, and judgment entered on March 27, 2018. That appellate case is captioned as Nnebe, et al. v. Daus, et al., Case No. 18-866. The lawsuit alleges that the New York City Taxi and Limousine Commission's policy of suspending taxi drivers upon notification of their arrest violates the United States Constitution, New York state law, and New York City municipal law.[BN] Plaintiffs-Appellees Jonathan Nnebe, New York Taxi Workers Alliance, individually and on behalf of all others similarly situated, Kharirul Amin and Eduardo Avenaut are represented by: Daniel L. Ackman, Esq. LAW OFFICE OF DANIEL ACKMAN 222 Broadway New York, NY 10038 Telephone: (917) 282-8178 Facsimile: (888) 290-3481 E-mail: dan@danackmanlaw.com Defendants-Appellants Matthew Daus, Joseph Eckstein, Elizabeth Bonina, The New York City Taxi and Limousine Commission, The City of New York and Charles Fraser are represented by: Zachary W. Carter, Esq. NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 356-1000 E-mail: zcarter@law.nyc.gov NORMANDY SCHOOLS: Age Discrimination Case Removed to Federal Ct. ---------------------------------------------------------------- Sam Knef, writing for St. Louis Record, reports that Normandy Schools Collaborative recently removed a proposed class action alleging age discrimination and 14th Amendment violations filed in St. Louis County Circuit Court to federal court. Plaintiffs in the case claim age discrimination in violation of the Missouri Human Rights Act (MHRA), disparate impact and pattern and practice discrimination in violation of the MHRA and impairment of contract under state law. Their federal claims include civil conspiracy and violations of the 14th Amendment. The litigation brought by lead plaintiffs Phyllis Hope, Benita Mercer, Byron Fry, Vonzella Jackson, Geannette Walls, Judith Bronaugh, Laura Johnson, Alice Bell, Barbara Sharp, Hope Lewis, Betty Chism, Marilyn McElroy, Robert Nelson Wanda Weaver, Felecia Hickman, Deblin Thomas, Preston Thomas, Shelia Bumpers, Brenda Glaze, Michael Jackson and Allen Grant asserts seven counts of damages in a second amended complaint. The defendant, represented by Dorothy White-Coleman and Susie McFarlind of White Coleman & Associates in St. Louis and Melanie Gurley Keeney and Mandi D. Moutray of Tueth, Keeney, Cooper, Mohan & Jackstadt of St. Louis, argues that U.S. District Court for the Eastern District of Missouri, Eastern Division, has jurisdiction because of alleged violations of federal law. Normandy Schools also states in its May 25 removal notice that federal court has supplemental jurisdiction because plaintiffs' state law allegations "are so related" to federal claims "as to form part of the same case or controversy." "Additionally, 28 U.S.C. Sec. 1441 (c) provides that whenever a separate and independent claim or cause of action within the jurisdiction conferred by 28 U.S.C. Sec. 1331 is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein," the notice states. "Supplemental jurisdiction over plaintiffs' state law claims is also proper pursuant to 28 U.S.C. Sec. 1367(c) because (i) the state claims do not raise a novel or complex issue of state law; (ii) the state claims do not substantially predominate over the claims over which the district court has original jurisdiction; (iii) the district court has not dismissed all claims over which it has original jurisdiction; and (iv) there are no exceptional circumstances or other compelling reasons for declining jurisdiction." [GN] NRG RESIDENTIAL: Denial of Arbitration Bid in "Griffoul" Reversed ----------------------------------------------------------------- In the case, BRIAN GRIFFOUL and ANANIS GRIFFOUL, Plaintiffs- Respondents, v. NRG RESIDENTIAL SOLAR SOLUTIONS, LLC d/b/a NRG HOME SOLAR and NRG ENERGY, INC., Defendants-Appellants, Case No. A-5535-16T1 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, reversed the July 14, 2017 order, which denied the Defendants' motion to compel arbitration. The Plaintiffs, residents of Elmwood Park and class representatives Brian and Ananis Griffoul, and NRG Residential entered into solar power system leases. The lease agreements required NRG Residential to install solar systems on the Plaintiffs' respective properties, which would provide electricity to their homes, and also be interconnected with the utility's electrical transmission grid. In consideration, the Plaintiffs each made a down payment of $51.55 followed by 239 monthly lease payments for a total of $16,453.96. The Plaintiffs filed a class action complaint against the Defendants alleging violations of the New Jersey Consumer Fraud Act ("CFA"), and the Truth-in-Consumer Contract Warranty and Notice Act ("TCCWNA"). They allege the lease agreement contained six provisions that violated consumer rights: Access Rights; Remedies; Indemnity; No Consequential Damages; Limitation of Liability; Statute of Limitations. They also alleged the Defendants made specific and direct representations that customers could expect decreased monthly energy bills and would obtain certain benefits by way of their receipt of solar renewable energy credits. The Defendants moved to compel arbitration pursuant to a provision in the parties' lease agreement. NRG Energy also moved to dismiss count one of the complaint without prejudice for failure to plead a CFA claim with particularity as required by Rule 4:5-8(a). NRG Energy moved to dismiss count two of the complaint with prejudice arguing a TCCWNA claim could not be asserted against it because it was not a party to the lease agreement. The motion judge denied the Defendants' motions. The judge found the arbitration clause in the lease agreement invalid, and denied the motion to compel arbitration. The judge ruled the arbitration clause failed to state the Plaintiff's statutory claims were subject to arbitration. The judge found the class action waiver unclear and contradicted the arbitration clause. The judge also denied NRG Energy's motion to dismiss, and its subsequent motion for reconsideration of the denial of the motion to dismiss. The appeal followed. The Defendants argue the Federal Arbitration Act ("FAA") preempted the motion judge's invalidation of the arbitration clause and required the arbitration agreement to be enforced according to its terms. They argue there is no requirement for an agreement to reference a specific statute in order to encompass statutory claims. They argue the arbitration agreement is enforceable pursuant to Atalese and Martindale v. Sandvik, Inc. They assert both cases required the court to consider the parties' intent in interpreting an arbitration agreement, which the motion judge failed to do here. The Defendants also argue NRG Energy should have been dismissed because it is not a party to the contract, and the motion judge should have stayed the proceedings pending appeal. The Appellate Court finds that the arbitration clause of the lease agreement clearly and unambiguously waived the Plaintiff's right to a proceeding in court. Having done so, the clause then defined the capacity in which claims could be brought in arbitration and clearly limited those claims to individual claims, thereby barring a class action in arbitration. Furthermore, the arbitration clause's usage of the word "purported" preceding the class action waiver did not signal an invitation to assert only meritorious class action claims in arbitration. Indeed, the purport of an instrument means the substance of it as it appears on the face of the instrument. Therefore, the Judge, finds that the arbitration clause identified "purported" class actions as having been waived was not a qualitative assessment of the merits of the class action claim, but rather language crafted broadly enough to exclude from arbitration those claims that appeared to be class action based. For these reasons, the Court upheld the arbitration clause provisions of the lease agreement. It reversed the motion judge's order denying the motion to compel arbitration. A full-text copy of the Court's April 24, 2018 Opinion is available at https://is.gd/OnYsSH from Leagle.com. Thomas J. O'Leary -- toleary@connellfoley.com -- argued the cause for appellants (Connell Foley, LLP, attorneys; Thomas J. O'Leary, of counsel and on the briefs; Patricia A. Lee -- plee@connellfoley.com -- on the briefs). Arthur M. Owens -- AOwens@lumlaw.com -- argued the cause for respondents (Lum, Drasco & Positan, LLC, attorneys; Arthur M. Owens, on the brief). NUEVA SAN SALVADOR: Doesn't Pay OT to Server, "Amaya" Suit Claims ----------------------------------------------------------------- MARIA AMAYA, individually and on behalf of all others similarly situated, Plaintiff v. NUEVA SAN SALVADOR RESTAURANT #4, CORP. d/b/a NUEVA SAN SALVADOR RESTAURANT #1, CORP. d/b/a NUEVA SAN SALVADOR RESTAURANT #2, CORP.; NUEVA SAN SALVADOR RESTAURANT #3, CORP.; CARLOS PORTILLO; and GLORIA PORTILLO, Defendants, Case No. 1:18-cv-22127-UU (S.D. Fla., May 30, 2018) seeks to recover from the Defendants unpaid overtime and minimum wages under the Fair Labor Standards Act. Ms. Amaya was employed by the Defendants as server Nueva San Salvador Restaurant #4, Corp. d/b/a Nueva San Salvador Restaurant #1, corp. d/b/a Nueva San Salvador Restaurant #2, Corp. is a corporation organized under the laws of the State of Florida. The Company is engaged in the restaurant business. [BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503.5131 Facsimile: (888) 270.5549 Email: msaenz@saenzanderson.com ONE INC: Warciak Sues over Debt Collection Practices ---------------------------------------------------- MATTHEW WARCIAK, individually and on behalf of all others similarly situated, Plaintiff v. ONE, INC., Defendant, Case No. 2018-CH-06254 (Ill. Cir., Cook Cty., May 15, 2018) seeks to stop the Defendant's practice of making unwanted and unsolicited text message calls to the cellular telephones of consumers nationwide and to obtain redress for all persons injured. One, Inc. develops Web/cloud-based software products that help property and casualty insurers. It offers InsureOne, a software suite that offers a policy management system, payment processing system, enterprise efficiency management, agency management, customer relationship management, business intelligence and reporting, and marketing representative's management software solution. The company serves agencies, carriers, MGAs, and others working in data-dependent business scenarios. The company was founded in 2005 and is based in Rancho Cordova, California. [BN] The Plaintiff is represented by: Benjamin H. Richman, Esq. EDELSON PC 350 North LaSalle Street, Suite 1400 Chicago, IL 60654 Telephone: (312) 589-6370 Fax: (312) 589-6378 E-mail: brichman@edelon.com - and - Eve-Lynn J. Rapp, Esq. 123 Townsend Street, Suite 100 San Francisco, CA 94107 Tel: (415) 212-9300 Fax: (415) 373-9435 ORION MARINE: Kelly Sues over Debt Collection Practices ------------------------------------------------------- JORDAN KELLY, individually and on behalf of all others similarly situated, Plaintiff v. ORION MARINE CONSTRUCTION, INC. d/b/a ORION MARINE GROUP, Defendant, Case No. 72148603 (Fla. Cir., Hillsborough Cty., May 15, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect debt. Orion Marine Construction, Inc. d/b/a Orion Marine Group is a Florida for-profit corporation and operates a construction company in Tampa, Hillsborough County, Florida. [BN] The Plaintiff is represented by: Matthew K. Fenton, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813)229-8712 Email: bhill@wfclaw.com twells@wfclaw.com mfenton@wfclaw.com ORMAT TECHNOLOGIES: Bernstein Liebhard Files Class Action --------------------------------------------------------- Bernstein Liebhard LLP on June 11 disclosed that it has filed a securities class action lawsuit on behalf of those who purchased or acquired the securities of Ormat Technologies, Inc. ("Ormat" or the "Company") (NYSE:ORA) between August 8, 2017 and May 15, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover Ormat shareholders' investment losses. To join the Ormat class action, and/or if you have information relating to this matter, please visit our ORMAT 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) there were errors in the income tax provision primarily relating to Ormat's valuation allowance based on its ability to utilize foreign tax credits in the U.S. prior to their expiration; (2) Ormat netted certain deferred income tax assets and deferred income tax liabilities across different tax jurisdictions that are not permitted to be netted pursuant to United States generally accepted accounting principles; (3) Ormat's internal controls over financial reporting were ineffective during the Class Period; (4) due to the foregoing, Ormat would need to restate its second, third and fourth quarter 2017 financial statements and its full-year 2017 financial statements; and (5) as a result, Defendants' statements about the Company's business, operations and prospects were materially false and misleading and/or lacked a reasonable bases at all relevant times. On May 11, 2018, Ormat disclosed that its delaying the filing of its Quarterly Report for the period ended March 31, 2018 with the SEC because "management has identified an error in the Company's financial statement presentation of deferred income tax assets and deferred income tax liabilities that affects the Company's balance sheets in previous reporting periods." Ormat further disclosed that "[t]he Company is evaluating the impact of this error on its consolidated financial statements and the extent to which the Company's annual and quarterly consolidated financial statements filed in previous periods require revision or amendment." On this news, Ormat's stock fell $3.58 per share, or over 6%, over two consecutive trading days to close at $52.77 per share on May 14, 2018, damaging investors. Then, on May 16, 2018, Ormat revealed that "it will restate its second, third and fourth quarter 2017 financial statements and its full-year 2017 financial statements," and therefore, "investors should no longer rely upon the Company's previously issued financial statements for the periods set forth above, earnings releases for these periods, and other communications relating to these financial statements." On this news, Ormat's stock fell $0.67 per share from its previous closing price to close at $52.35 per share on May 16, 2018, damaging investors. The class action is pending in the United States District Court for the District of Nevada, under docket number 3:18-cv-00271. If you wish to serve as lead plaintiff, you must move the Court no later than August 10, 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. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Daniel Sadeh Bernstein Liebhard LLP Telephone: (877) 779-1414 E-mail: dsadeh@bernlieb.com Web site: http://www.bernlieb.com[GN] OSIRIS THERAPEUTICS: Settles Investor Fraud Class Action -------------------------------------------------------- Dean Seal, writing for Law360, reports that investors in Osiris Therapeutics Inc. told a Maryland federal judge on June 12 that they had reached an $18.5 million settlement with the biotech research company over allegations it artificially inflated reported revenues and misled shareholders about its revenue growth. Lead plaintiff Raffy Mirzayan said the settlement was reached after five months of mediation and negotiation that ended in March. He asked the judge for preliminary approval of the settlement, along with certification of the investor class. The case is Nallagonda v. Osiris Therapeutics, Inc. et al, Case No. 1:15-cv-03562. The case is assigned to Judge Paula Xinis. The case was filed November 23, 2015. [GN] PARAGON INDUSTRIES: Fails to Pay Proper Wages, "Castro" Suit Says ----------------------------------------------------------------- Elizabeth Castro, individually and on behalf of all others similarly situated, Plaintiff v. PARAGON INDUSTRIES, INC. d/b/a BEDROSIANS, and DOES 1 through 100, Defendants, Case No. 18CECG01701 (Cal. Super., May 14, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Castro was employed by the Defendants as an hourly- paid, non-exempt employee, from September 2016 to June 2017. Paragon Industries, Inc. manufactures steel tubular and line pipe products. It serves oil industry in the United States, Canada, and South America. The company was founded in 1970 and is based in Sapulpa, Oklahoma with a coil processing facility in Muskogee, Oklahoma. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 PEOPLES UNITED BANK: Faces "Pryzgoda" in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against People's United Bank, N.A. The case is captioned as Lisa A. Pryzgoda, individually and on behalf of all others similarly situated, Plaintiff v. People's United Bank, N.A., and People's United Financial, Inc., Defendants, Case No. 1:18-cv-04299-JSR (S.D.N.Y., May 14, 2018). The case is assigned to Judge Jed S. Rakoff. People's United Bank, N.A. provides retail and business banking services, as well as wealth management services. The company was founded in 1842 and is based in Bridgeport, Connecticut with a network of branches in Connecticut, Massachusetts, Vermont, New York, New Hampshire, and Maine. People's United Bank, N.A. operates as a subsidiary of People's United Financial, Inc. [BN] The Plaintiff is represented by: Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: twolfson@ahdootwolfson.coma PG&E CORP: Aug. 13 Lead Plaintiff Bid Deadline ---------------------------------------------- Bragar Eagel & Squire, P.C. on June 13 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 PG&E Corporation (NYSE:PCG) securities between April 29, 2015 and June 8, 2018 (the "Class Period"). Investors have until August 13, 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 (1) PG&E had failed to maintain electricity transmission and distribution networks in compliance with safety requirements and regulations promulgated under state law; (2) consequently, PG&E was in violation of state law regulation; (3) PG&E's electricity networks would cause numerous wildfires in California; and (4) as a result of the foregoing, Defendants' statements about the Company's business and operations were materially false and misleading at all relevant times. On June 9, 2018, Bloomberg published an article entitled "PG&E May Face Criminal Charges After Probe of Deadly Wildfires." The article reported that an investigation into the causes of California wildfires in October 2017 by California's fire agency "found evidence of alleged violations of law by PG&E in connection with" the fires. If you purchased or otherwise acquired PG&E Corporation securities during the Class Period or continue to hold shares purchased during 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] PETEZA PROSE: "Kile" Stayed Pending Ruling in 3 Cases ----------------------------------------------------- Judge J. Daniel Breen of the U.S. District Court for the Western District of Tennessee, Eastern Division, stayed the case, MORGEN KILE, Plaintiff, v. PETER D'ANDREA, JOHANAS ROBERSON, PETEZA PROSE, LLC, and 5 STAR PIZZA, INC., Defendants, Case No. 1:17-cv- 01225-JDB-egb (W.D. Tenn.). The Parties' filed their Joint Motion to Stay in the matter pending the U.S. Supreme Court's ruling of three consolidated cases pertaining to the lawfulness of class action waivers in pre-dispute, mandatory arbitration agreements. For good cause shown, the Judge granted. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/P2fp7b from Leagle.com. Morgen Kile, Individually, and on behalf of others similarly situated, Plaintiff, represented by Gordon E. Jackson -- gjackson@jsyc.com -- JACKSON SHIELDS YEISER & HOLT, Paula Rachelle Jackson, JACKSON SHIELDS YEISER & HOLT, Robert Emmett Turner, IV, JACKSON SHIELDS YEISER & HOLT & Joseph Russ Bryant -- rbryant@jsyc.com -- JACKSON SHIELDS YEISER & HOLT. Peter D'Andrea, an Individual, Johanas Roberson, an Individual, Peteza Prose, LLC, a Tennessee Limited Liability Company & 5 Star Pizza, Inc., a Tennessee Corporation, Defendants, represented by Courtney Leyes -- cleyes@fisherphillips.com -- FISHER & PHILLIPS, LLP & Edward N. Boehm, Jr. -- tboehm@fisherphillips.com -- FISHER & PHILLIPS LLP. PRODUCTION MGMT: Magistrate Recommends Approval of "Daniels" Suit ----------------------------------------------------------------- In the case, LAPATRICK DANIELS, v. PRODUCTION MANAGEMENT INDUSTRIES, LLC, Civil Action No. 6:15-cv-02567 (W.D. La.), Magistrate Judge Patrick J. Hanna of the U.S. District Court for the Western District of Louisiana, Lafayette Division, recommended that the Proposed Settlement be approved, and the Joint Motion to Reassert the Motion to Approve Settlement Agreement be granted. The parties reached a settlement in the case which has been conditionally certified a collective action under Fair Labor Standards Act ("FLSA"). As a result, the counsel filed a Joint Motion to Approve Settlement Agreement, which was subsequently denied without prejudice to the parties' right to reassert the motion after addressing the Court's concerns. The Counsel then filed a Joint Motion to Reassert the Motion to Approve Settlement Agreement. The Counsel has also provided a copy of the Proposed Settlement Agreement. Under the Proposed Settlement Agreement, 73 collective action members will receive backpay and an equal amount of liquidated damages under the FLSA, no collective action member's payment will be reduced by attorney's fees and expenses, the action will be dismissed with prejudice, and each party will bear its own attorney's fees and costs except as provided in the proposed settlement agreement. Magistrate Judge Hanna finds that the proposed settlement is fair, adequate and reasonable, and accordingly, recommends that the proposed settlement be approved. There is no evidence of any fraud or collusion behind the settlement. With regard to the inquiries set forth in the second factor, the complexity, expense, and likely duration of the litigation, he says the case presented multiple complex legal issues which have been zealously litigated by experienced counsel at significant expense. The Magistrate Judge also finds that the stage of the proceedings and the amount of discovery completed, likewise supports a finding that the settlement is fair, adequate and reasonable, and should be approved. The probability of the Plaintiff's success on the merits, also supports a finding that the settlement is fair, adequate and reasonable. The range of possible recovery, weighs in favor of a finding that the settlement is fair, adequate and reasonable. Finally, he finds that the opinions of the class counsel, the class representatives, and the absent class members, also mandate a finding that the settlement is fair, adequate and reasonable. As part of the fairness determination, the Magistrate Judge also assesses the reasonableness of any proposed award of attorney's fees and expenses sought by the Plaintiff's counsel. The Plaintiffs' counsel seeks approval of an award of $400,000 in attorneys' fees and $6,050 in costs and expenses. He finds that all parties have agreed the Plaintiffs' counsel is entitled to a total of 40% of the gross settlement amount for attorney's fees, costs and expenses. The degree of success in the case is high in that the Defendant vigorously contested Plaintiffs' claims, and the Plaintiffs had to litigate the case for over two years before it could be resolved. For all of the foregoing reasons, the Magistrate Judge finds that the proposed award in the case is fair and reasonable. For the reasons stated, Magistrate Judge Hanna recommended that the proposed settlement be approved, and that the Court grants the Joint Motion to Reassert Motion to Approve Settlement Agreement on the terms and conditions set forth in the Motion and the Proposed Settlement Agreement. The Magistrate Judge further recommended that the collective action be dismissed with prejudice. Because the parties have agreed on the payment of the settlement funds and attorneys' fees and there has been no objections to the settlement filed in the record, he shortened the time period for objections set forth in 28 U.S.C.A. Section 636(b)(1)(c). The parties have five days to serve and file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within five days following the date of its service, will bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. A full-text copy of the Court's April 20, 2018 Report and recommendation is available at https://is.gd/kF6h26 from Leagle.com. LaPatrick Daniels, Kirt Favors, Clyde Castle, Thomas L David, Shawn Faulkner, Gejuan Georgia, Anthony Grogan, Derrick C Jackson, Cornelius Johnson, Mitchell Johnson, Roger Johnson, Deion Lanthier, Ray Pack, Terrance Perkins, Bobby Porter, David Ricard, Christain Singleton, Trilon Taylor, Herbert Thompson, Bradley D Wells, Shaiza Williams, Trent Bryant, Cedric N Burton, Brian K Francis, Ramon Montes, Randolph K Richard, Ryan Bickham, Jeremy Holder, Ahmad Sandifer, Gregory Brown, Steven L Fortenberry, Brian K Johnson, Cedric Shannon, Willie Dawson, II, Daniel Lockett, Ralph Messam, Charlie Martin, All Plaintiffs, in 6:15-cv-2567, Shawn C Travis, Demario Wright, Aha Keen Allen, Ja'Darriah Banks, Quovodis M Bickham, erroneously named as Quovadis Abickham, Junius Boyd, Gregory DuJuan Brown, Ronnie Hendrix, Christopher Jackson, Willie McDyess, Cornelius Stansbury, David Allen Turner, Cory Washington, Charles Kirksey, Jarrell L Campbell, Adrian Jones, Kristopher L Hunt, Robert Smith, Cory Bowser, Jeremy K Buckner, DeAngelo M Terrell, Shannon Tassin, Jeremiah Burton, Kebe Ennis, Marcus Fontenot, Henry T Jefferson, III, Miguel A Garcia Ramirez, Ceasar D Bell, Elvin R Ivory, II, Phillip Gooden, Chauncey Johnson, Steve Sivilay & Patrick J Green, Plaintiffs, represented by Kenneth W. DeJean, Law Offices of Kenneth W. DeJean, Andrew Dunlap, Josephson Dunlap Law Firm, pro hac vice, Matthew Scott Parmet, Bruckner Burch, Michael A. Josephson -- mjosephson@mybackwages.com -- Josephson Dunlap Law Firm, pro hac vice & Richard J. Burch, Bruckner Burch, pro hac vice. Kendrick Green, Stephen Iverson & Kendrick Magee, Plaintiffs, represented by Kenneth W. DeJean, Law Offices of Kenneth W. DeJean, Andrew Dunlap, Josephson Dunlap Law Firm, pro hac vice, Michael A. Josephson, Josephson Dunlap Law Firm, pro hac vice & Richard J. Burch, Bruckner Burch, pro hac vice. Ronald Hill, Plaintiff, represented by Kenneth W. DeJean, Law Offices of Kenneth W. DeJean, Andrew Dunlap, Josephson Dunlap Law Firm, pro hac vice, Michael A. Josephson, Josephson Dunlap Law Firm, pro hac vice & Richard J. Burch, Bruckner Burch, pro hac vice. Production Management Industries LLC, Defendant, represented by Andrew P. Burnside -- drew.burnside@ogletree.com -- Ogletree Deakins et al & Jennifer Lynn Englander -- jennifer.englander@ogletree.com -- Ogletree Deakins et al. QUALCOMM INC: Robbins Geller Files Securities Class Action ---------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on June 11 disclosed that a class action has been commenced on behalf of purchasers of QUALCOMM Incorporated ("Qualcomm") (NASDAQ: QCOM) securities during the period between January 31, 2018 and March 12, 2018 (the "Class Period"). This action was filed in the Southern District of California and is captioned Camp v. QUALCOMM Incorporated, et al., No. 3:18-cv-1208. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from June 8, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/qualcomm/. 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. The complaint charges Qualcomm and certain of its officers with violations of the Securities Exchange Act of 1934. Qualcomm develops and commercializes foundational technologies and products used in mobile devices and other wireless products. Broadcom Limited ("Broadcom") is a designer, developer and global supplier of a broad range of semiconductor devices. Beginning in November 2017, Broadcom announced a series of unsolicited proposals to acquire all of the outstanding shares of Qualcomm common stock. The complaint alleges that, throughout the Class Period, defendants made materially false and misleading statements and failed to disclose to investors that Qualcomm had secretly filed a unilateral notice with the Committee on Foreign Investment in the United States ("CFIUS") to frustrate Broadcom's attempt to acquire the Company and in order to allow the officers of Qualcomm to entrench themselves in their executive leadership positions at the Company. As a result of defendants' false statements and/or omission of this material information, Qualcomm securities traded at artificially inflated prices during the Class Period. On March 5, 2018, Broadcom disclosed that "Qualcomm secretly filed a voluntary request with CFIUS to initiate an investigation, resulting in a delay of Qualcomm's Annual Meeting 48 hours before it was to take place. This was a blatant, desperate act by Qualcomm to entrench its incumbent board of directors and prevent its own stockholders from voting for Broadcom's independent director nominees." Then on March 12, 2018, Qualcomm filed a Form 8-K with the SEC attaching a letter from CFIUS regarding its investigation into the proposed acquisition, which stated that the "investigation has so far confirmed [a] national security concern" and requested that Broadcom provide responsive information. The letter also stated that, "[i]n the absence of information that changes CFIUS's assessment of the national security risks posed by this transaction, CFIUS would consider taking further action, including but not limited to referring the transaction to the President for decision." Later the same day, President Donald J. Trump issued an order blocking Broadcom from taking further action regarding its proposed acquisition of Qualcomm. Following these developments, the price of the Company's common stock declined substantially. Plaintiff seeks to recover damages on behalf of all purchasers of Qualcomm securities during the Class Period (the "Class"). Robbins Geller -- http://www.rgrdlaw.com-- is a law firm representing investors in securities litigation. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. [GN] PARAGON INDUSTRIES: Fails to Pay Proper Wages, "Castro" Suit Says ----------------------------------------------------------------- Elizabeth Castro, individually and on behalf of all others similarly situated, Plaintiff v. PARAGON INDUSTRIES, INC. d/b/a BEDROSIANS, and DOES 1 through 100, Defendants, Case No. 18CECG01701 (Cal. Super., May 14, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Castro was employed by the Defendants as an hourly- paid, non-exempt employee, from September 2016 to June 2017. Paragon Industries, Inc. manufactures steel tubular and line pipe products. It serves oil industry in the United States, Canada, and South America. The company was founded in 1970 and is based in Sapulpa, Oklahoma with a coil processing facility in Muskogee, Oklahoma. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 PEOPLES UNITED BANK: Faces "Pryzgoda" in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against People's United Bank, N.A. The case is captioned as Lisa A. Pryzgoda, individually and on behalf of all others similarly situated, Plaintiff v. People's United Bank, N.A., and People's United Financial, Inc., Defendants, Case No. 1:18-cv-04299-JSR (S.D.N.Y., May 14, 2018). The case is assigned to Judge Jed S. Rakoff. People's United Bank, N.A. provides retail and business banking services, as well as wealth management services. The company was founded in 1842 and is based in Bridgeport, Connecticut with a network of branches in Connecticut, Massachusetts, Vermont, New York, New Hampshire, and Maine. People's United Bank, N.A. operates as a subsidiary of People's United Financial, Inc. [BN] The Plaintiff is represented by: Tina Wolfson, Esq. AHDOOT & WOLFSON, P.C. 1016 Palm Avenue West Hollywood, CA 90069 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: twolfson@ahdootwolfson.coma RAY KLEIN: "Anderson" Suit Asserts FDCPA Breach ------------------------------------------------ Colette Anderson, on behalf of herself and all others similarly situated, Plaintiff, v. Ray Klein, Inc. (d/b/a Professional Credit Service), Defendant, Case No. 18-cv-11389, (E.D. Mich., May 2, 2018), seeks damages and declaratory and injunctive relief pursuant to the Fair Debt Collections Practices Act. Ray Klein, Inc. is a debt collection agency assigned to collect an unpaid cellphone bill. They sent a letter that failed to meaningfully convey the name of the current creditor to whom the alleged debt is owed, says the Plaintiff, says the complaint. [BN] Plaintiff is represented by: Joseph Panvini, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave. D106-618 Mesa, AZ 85206 Telephone: (602) 388-8875 Facsimile: (866) 317-2674 Email: jpanvini@ThompsonConsumerLaw.com RCI HOSPITALITY: Doesn't Pay OT to Dancers, "Godwin" Suit Alleges ----------------------------------------------------------------- ELIZABETH GODWIN and KRISHNA BUOY; individually and on behalf of all others similarly situated, Plaintiffs v. NICOLAI ORCUTT; JOHN DELEON; MARI HERNANDEZ; ERIC LANGAN; RCI HOSPITALITY HOLDINGS, INC., RCI MANAGEMENT SERVICES, INC., JAI DINING SERVICES (LUBBOCK), INC., Defendants, Case No. 5:18-cv-00133-C (N.D. Tex., May 25, 2018) seeks to recover unpaid minimum wages and overtime pay pursuant to the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as dancers in Lubbock, Texas, since May 25, 2015. RCI Hospitality Holdings, Inc. is a corporation with principal place of business in Houston, Texas. The Company is engaged in a restaurant and bar business. [BN] The Plaintiff is represented by: Nicholas J. Enoch, Esq. Stanley Lubin, Esq. LUBIN & ENOCH, P.C. 221 N. Kansas Street, Suite 700 El Paso, TX 79901 Telephone: (915) 585-8008 Facsimile: (602) 626-3586 E-mail: nick@lubinandenoch.com stan@lubinandenoch.com RCI LLC: Made Unsolicited Calls, "Andrews" Suit Alleges ------------------------------------------------------- JAMES ANDREWS, individually and on behalf of all others similarly situated, Plaintiff v. RCI, LLC; RED ROCK TRAVEL, LLC d/b/a TRIPPS TRAVEL NETWORK; and DOES 1 through 10, Defendants, Case No. 5:18-cv-01175 (C.D. Cal., May 31, 2018) alleges that the Defendants negligently, knowingly, and willfully contacting Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act. Plaintiff alleges that Defendant made unauthorized text messages and calls using an automatic telephone dialing system to the cellular telephone numbers of Plaintiff and the other members of the Class without their prior express written consent. RCI, LLC is a corporation engaged as a telemarketer selling timeshare and other travel services. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com RECRO PHARMA: Faces "Alberici" Suit over Share Price Drop --------------------------------------------------------- JOHN ALBERICI, individually and on behalf of all others similarly situated, Plaintiff v. RECRO PHARMA, INC.; GERALDINE A. HENWOOD; RYAN D.LAKE; and MICHAEL CELANO, Defendants, Case No. 2:18-cv-02279-MMB (E.D. Pa., May 31, 2018) seeks to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that the Defendants made materially false and misleading statements regarding their business, operational and compliance policies. Specifically, the Defendants made false and misleading statements and failed to disclose that: (i) IV Meloxicam, a long-acting preferential COX-2 inhibitor o be used for the management of moderate to severe pain, lacked supporting clinical data to show sufficient clinical benefits to receive U.S. Food and Drug Administration approval; and (ii) as a result, the Defendants' public statements were materially false and misleading at all relevant times. On May 24, 2018, the Defendants announced that the FDA had declined to approve their New Drug Application for IV Meloxicam. The FDA stated that the drug's analgesic effects did not meet FDA expectations and raised questions related to chemistry, manufacturing and controls data. On this news, the Defendants' share price fell $6.79, or 54.67%, to close at $5.63 on May 24, 2018. Thus, the Plaintiff and the class have suffered significant losses and damages. Recro Pharma, Inc. is a corporation organized and existing under the laws of the State of Pennsylvania. The Company's securities trade on the NASDAQ under the ticker symbol "REPH." [BN] The Plaintiff is represented by: D. Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road, Suite 650 Radnor, PA 19087 Telephone: (484) 258- 1585 Facsimile: (484) 258-1585 E-mail: skaskela@kaskelalaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com REPUBLIC SERVICES: Faces "Seay" Suit over Waste Disposal Fees ------------------------------------------------------------- Mary Seay, individually and on behalf of all others similarly situated, Plaintiff v. REPUBLIC SERVICES, INC., and CONSOLIDATED DISPOSAL SERVICE, LLC, Defendants, Case No, BC705963 (Cal. Super., Los Angeles Cty., May 14, 2018) is an action against the Defendants seeking award for restitution, disgorgement, and other equitable relief, including attorney's fees and expenses. The Defendants hold long-term exclusive solid waste collection contracts with 40 municipalities in Los Angeles, Orange, and San Bernardino counties. The Plaintiff alleges that despite being a "residential account," the Defendants made an improper "commercial designation," which resulted in a situation for the Defendants to overcharge the Plaintiff, not only for basic service, but for other fees as well in the Defendants' solid waste management. Republic Services Inc. of California provides waste management services. The Company offers landfill, recycling, solid, and bulk waste disposal. Republic Services supplies dumpster on rental basis. [BN] The Plaintiff is represented by: Patricia N. Syverson, Esq. Manfred P. Muecke, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. 600 W. Broadway, Suite 900 San Diego, California 92101 Telephone: (619) 798-4593 E-mail: psyverson@bffb.com mmuecke@bffb.com RESIDENTIAL FENCES: Fails to Pay Proper Wages, "Miuzzo" Suit Says ----------------------------------------------------------------- Peter Miuzzo, individually and on behalf of all others similarly situated, Plaintiff v. Residential Fences Corp., and Laser Industries Inc., Defendants, Case No. 2:18-cv-02901-JFB-ARL (E.D.N.Y., May 15, 2018) is an action against the Defendants for failure to pay overtime and prevailing wages. Mr. Miuzzo was employed by the Defendants as laborer. Residential Fences Corp. was founded in 1995. The company's line of business includes providing special trade contracting services. [BN] The Plaintiff is represented by: Garrett Kaske, Esq. Troy L. Kessler, Esq. Garrett Kaske, Esq. SHULMAN KESSLER LLP 534 Broadhollow Road, Suite 275 Melville, NY 11747 Telephone: (631) 499-9100 RIPPLE LABS: Removes "Coffey" Suit to N.D. California ----------------------------------------------------- The Defendants in the case captioned as, RYAN COFFEY, individually and on behalf of all others similarly situated, Plaintiff v. RIPPLE LABS INC.; XRP II, LLC; BRADLEY GARLINGHOUSE; and DOES 1 through 10, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of San Francisco (Case No. CGC-18-566271) to the U.S. District Court for the Northern District of California on June 1, 2018. The lawsuit is now assigned Case No. 4:18-cv-03286-PJH (N.D. Cal., June 1, 2018). Ripple Labs Inc., develops and distributes an open source payments protocol. The Company offers an open source payments system and a math-based virtual currency that power the world's distributed currency exchange. Ripple can be used for a wide range of applications, including merchant payments, money transfers, or remittances. [BN] The Plaintiff is represented by: Peter B. Morrison, Esq. Virginia F. Milstead, Esq. SKADDEN ARPS SLATE MEAGHER & FLOM LLP 300 South Grand Avenue, Suite 3400 Los Angeles, CA 90071 Telephone: (213) 687-5000 Facsimile: (213) 687-5600 E-mail: peter.morrison@skadden.com virginia.milstead@skadden.com - and - John Neukom, Esq. SKADDEN ARPS SLATE MEAGHER & FLOM LLP 525 University Avenue, Suite 1400 Palo Alto, CA 94301 Telephone: (650) 470-4500 Facsimile: (650) 470-4570 E-mail: john.neukom@skadden.com - and - Mary Jo White, Esq. Andrew J. Ceresney, Esq. DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 E-mail: mjwhite@debevoise.com aceresney@debevoise.com ROOSEVELT HOTEL: Underpays Drivers, "Rodriguez" Suit Alleges ------------------------------------------------------------ FREDDY PACHAY-RODRIGUEZ and RAMON RODRIGUEZ, individually and on behalf of all others similarly situated Plaintiffs v. ROOSEVELT HOTEL REALTY LLC d/b/a WESTERN PLUS LAGUARDIA AIRPORT HOTEL; RAJESH PATEL, and PAUL PATEL, Defendants, Case No. 1:18-cv-02858- RRM-JO (E.D.N.Y., May 14, 2018) is an action against the Defendant to recover unpaid minimum wage, unpaid overtime wage, liquidated damages, and attorney's fees and costs. The Plaintiffs were employed by the Defendants as drivers from July 2015 to September 28, 2017. ROOSEVELT HOTEL REALTY LLC d/b/a BEST WESTERN PLUS LAGUARDIA AIRPORT HOTEL is a domestic limited liability company organized under the laws of the State of New York with an address for service of process located at 560 Saw Mill River Road, Ardsley, NY 10502 and a principal place of business located at 112-26 Roosevelt Avenue, Corona, NY 11368. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 RWLS LLC: Court Denies Dismissal of "Gandy" NMMWA Class Suit ------------------------------------------------------------ The United States District Court for the District of New Mexico denied Defendant's Motion to Dismiss Plaintiff's Individual and Class Claims in the case captioned RICK GANDY, Plaintiff, v. RWLS, LLC, d/b/a/ RENEGADE SERVICES, and MATTHEW GRAY, Individually, Defendants, No. 2:17-cv-00558 JCH-CG (D.N.M) Plaintiff Rick Gandy worked for Defendants RWLS, LLC, and its president, Matthew Grey (Defendants), as an operator and rigger in New Mexico. According to the complaint, the Defendants regularly scheduled the Class Members to work for a minimum of twelve (12) hours per day and a minimum of eighty-four (84) hours per week. Despite the NM Class Members routinely working over 40 hours per week, the Defendants failed to pay the NM Class Members any overtime premium for all hours worked in excess of 40 per workweek during the time period the NM Class Members received compensation on a salary or salary-plus-bonus basis. The Plaintiff alleges that Defendants violated the New Mexico Minimum Wage Act (NMMWA), by misclassifying him and the other NM Class Members as exempt from overtime and by failing to pay him and other NM Class Members overtime compensation at a rate of time-and-one-half for all hours worked in excess of 40 in an individual workweek. The Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) and 12(f) on two grounds: (i) failure to plead sufficient facts to support a reasonable inference that the Plaintiff received less than the overtime pay due; and (ii) the case cannot proceed as a matter of law as a Rule 23 class action, but must be pursued as a collective action. In this case, the Plaintiff alleges he worked as a Field Employee as a Rigger/Operator in New Mexico from approximately November 2014 to June 2015. He asserts the Defendants regularly scheduled Plaintiff to work for a minimum of twelve (12) hours per day and a minimum of eighty-four (84) hours per week during his employment and that despite routinely working over 80 hours per week, the Defendants failed to pay him any overtime premium for all hours worked in excess of 40 per workweek during the time period the Plaintiff received compensation on a salary or salary plus non-discretionary bonus basis. As to the frequency of unpaid work, the Plaintiff uses the terms routinely or regularly, which is some detail beyond merely repeating the language of the statute. The Plaintiff alleges the general length of hours worked in a week was over 84 hours, well above the 40-hour threshold. Accepting these allegations as true, the Plaintiff has given the Defendants sufficient factual context to nudge his claim from conceivable to plausible to state a claim for relief for failure to pay overtime as required by the NMMWA. Collective Versus Class Action Federal Rule of Civil Procedure 23 governs class action procedures in federal court. Under the notice provisions for any class certified under Rule 23(b)(3), the court will exclude from the class any member who requests exclusion. The FLSA permits an action by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. In contrast to Rule 23, the FLSA contains an opt in requirement: No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The NMMWA permits a collective action by employees on behalf of 'themselves and other employees similarly situated. Armijo, 2007- NMCA-120 (quoting N.M. Stat. Ann. Section 50-4-26(B)(2)). Is Rule 23 in direct conflict with the NMMWA collective action provision? The Plaintiff argues that the NMMWA contains no express opt-in requirement similar to the FLSA and the Armijo case does not mention an opt-in requirement. The Plaintiff contends that there is no inherent conflict between applying the ad hoc two-step process and also using an opt-out standard. The Defendants nonetheless contend that New Mexico state trial courts have construed Armijo to mean that NMMWA collective actions must proceed as opt-in collective actions, like their FLSA counterparts. The Court need not decide whether the New Mexico appellate courts would interpret the NMMWA as requiring an opt-in procedure because, even assuming a judicially created opt-in requirement exists under the NMMWA, the Court concludes infra that the opt-in collective action rule is procedural in nature. Does the opt-in collective action requirement function to define the scope of the state-created right? The Defendants argue that the opt-in collective action requirement is part of New Mexico's framework for substantive rights or remedies because it substantively confers rights on employees to have their claims litigated only if they have affirmed their intent to be bound, and for employers the collective action provision affords the right not to be sued in representative actions by any employee who has not affirmatively chosen to sue. The ad hoc two-step process for conditional certification and the opt-in requirement are the processes by which a similarly situated person joins in a collective action. Whether a similarly situated person must affirmatively act to join a suit or is automatically in the suit unless he opts out does not determine the substantive rights and remedies potentially available to that person. As such, an opt-in provision functions very differently from a state law provision restricting class actions, which more directly defines the scope of the state-created right. The Court finds that the Defendants have not satisfied the high bar for finding a Rules Enabling Act problem. The Court therefore concludes that Rule 23 and its opt-out notice provision apply to Plaintiff's NMMWA claim brought on behalf of himself and others similarly situated. Accordingly, the Defendants' Motion to Dismiss the Plaintiff's Individual and Class Claims is denied. A full-text copy of the District Court's April 23, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y98ylgeu from Leagle.com. Rick Gandy, Plaintiff, represented by J. Derek Braziel -- jdbraziel@l-b-law.com -- Lee & Braziel LLP & Jack L. Siegel -- jack@siegellawgroup.biz -- Siegel Law Group PLLC. RWLS, LLC, doing business as Renegade Services, Defendant, represented by Ellen S. Casey, Hinkle Shanor LLP, Jaclyn M. McLean, Hinkle, Hensley, Shanor & Martin LLP, Brian S. Walsh, Law Offices of Brian S. Walsh, pro hac vice, Christian Antkowiak -- christian.antkowiak@bipc.com -- Buchanan Ingersoll & Rooney PC, pro hac vice & Curtis Schaffner -- curtis.schaffner@bipc.com -- Buchanan Ingersoll & Rooney PC, pro hac vice. Matthew Gray, Individually, Defendant, represented by Ellen S. Casey, Hinkle Shanor LLP, Jaclyn M. McLean, Hinkle, Hensley, Shanor & Martin LLP & Curtis Schaffner, Buchanan Ingersoll & Rooney PC, pro hac vice. S.C. STATE: Class Action Over Faulty Stucco Installation Resolved ----------------------------------------------------------------- Wade Livingston, writing for The Island Packet, reports that an attorney representing an embattled contractor accused of faulty stucco installation that affected thousands of homes in a Lowcountry gated community says a years-long, class-action lawsuit has been "resolved." "The actual terms (of the settlement) are being put on paper," Charleston lawyer Mike Ethridge said on June 11, adding that those terms still had to be presented to and approved by a judge. Mr. Ethridge represents S.C. State Plastering, LLC (SCSP), the company more than 4,000 residents of Sun City Hilton Head blame for shoddy stucco work -- which they say caused mold problems and varying degrees of structural damage, including some homes that needed new walls. News of the resolution comes days after Sun City residents forwarded to The Island Packet and The Beaufort Gazette an email stating "a tentative settlement has been reached" in the suit, Anthony Grazia vs. S.C. State Plastering. The case became a class-action affair in 2012 but was first filed in 2007. The case was originally supposed to go to trial on June 11, but it was continued and a motion hearing was scheduled in its place. That hearing, though, was canceled, according to a representative of the Beaufort County Clerk of Court's office, who said on June 11 the case had been "settled." Del Webb Communities Inc. (Sun City is a Del Webb property ), Pulte Homes Inc. and Kephart Architects Inc. are third-party defendants in the suit, since SCSP alleged it installed the stucco under the direction and design of those companies. "As a result of an extended period of mediation, both parties have reached a tentative settlement which now must be reviewed and approved by the court," PulteGroup, Inc., spokesperson Macey Kessler wrote in an email on June 11. "At this time, we are unable to make specific comments while the settlement is pending. We are glad to see a resolution for our homeowners." Pulte Homes and Del Webb are brands of PulteGroup, the Atlanta- based company that reported home-sale revenues totaling $1.9 billion for the first quarter of 2018. Mr. Ethridge said he did not know details about forthcoming settlement terms or when they will be presented to judge. He said the plaintiffs' lawyers might have more information. A representative from attorney Michael Seekings' Charleston firm, Leath, Bouch & Seekings, LLP -- which is representing the homeowners -- said on June 11 that he and his colleagues would not comment on the case. Court documents show that 187 people opted out of the class- action suit and took individual settlements from SCSP ranging from $1,500 to $50,000. The combined payout totaled more than $2.6 million. According to court documents, defense attorneys said, as of August 2017, their clients had spent "approximately $23 million . . . to date in attempted corrections as part of the Right to Cure Process." The S.C. Right to Cure Act requires a homeowner to give 90 days notice of the intent to file a lawsuit over construction and lays out a timeline for a contractor or subcontractor to assess the situation and offer repairs, money or some another solution. However, plaintiffs in the Grazia suit "allege that the only appropriate repair of the damaged homes is to de-clad and then re-clad the houses with an appropriate stucco system, at a cost of approximately $75,000.00 per structure," according to court documents. "The case has been resolved," Mr. Ethridge said on June 11. "This case has been going on for a long time," he continued. "And I think everyone is ready to resolve it." [GN] SABON WEB LLC: Faces "Wu" Suit in Southern District of New York --------------------------------------------------------------- A class action lawsuit has been filed against Sabon Web, LLC. The case is captioned as Kathy Wu, individually and on behalf of all others similarly situated, Plaintiff v. Sabon Web, LLC; Sabon American Dream, LLC; and Sabon RF, LLC, Defendants, Case No. 1:18-cv-04462-RWS (S.D.N.Y., May 20, 2018). The case is assigned to Judge Robert W. Sweet. Sabon American Dream, LLC is domestic limited liability company organized under the laws of the State of New York.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (917) 796-7437 Facsimile: (212) 982-6284 E-mail: danalgottlieb@aol.com - and - Jeffrey Michael Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 Facsimile: (212) 982-6284 E-mail: nyjg@aol.com SAKS & CO: Faces Data Breach Class Action Following Hacking ----------------------------------------------------------- Joyce Hanson, writing for Law360, reports that Saks & Co. got slapped with a proposed class action in California federal court on June 8 that accuses the retailer of failing to protect its customers' credit and debit card numbers from a data breach engineered by a "notorious hacking group" that allegedly attacked nearly all of Saks' point-of-sale systems in March. Los Angeles-based consumer Alexandria Rudolph led the action against the alleging the retailer. The case is Rudolph v. Saks & Company LLC d/b/a Saks OFF 5TH, Case No. 2:18-cv-05107 (C.D. Cal.). The case was filed June 8, 2018. [GN] SAMANTHA SANSON: Underpays Exotic Dancers, "King" Suit Alleges -------------------------------------------------------------- TEELA KING, individually and on behalf of all others similarly situated, Plaintiff v. SAMANTHA SANSON, and DOES 1 through 50, Defendants, Case No. BC705975 (Cal. Super., May 17, 2018) is an action against the Defendants for failure to pay all wages earned for all hours worked at the correct rates of pay, provide meal and paid rest periods. Ms. King was employed by the Defendants as exotic dancer from the year 2009 to January 2018. Samantha Sanson is an individual, a citizen of California, owner, director, or managing agent of exotic dance clubs doing business in Southern California. [BN] The Plaintiff is represented by: David G. Spivak, Esq. Sarah A. Scott, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Ste 312 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 E-mail: david@spivaklaw.com sarah@spivaklaw.com SAMUEL I WHITE: Davis Appeals E.D. Virginia Ruling to 4th Circuit ----------------------------------------------------------------- Plaintiff Ronnie Davis filed an appeal from a court ruling in the lawsuit titled Ronnie Davis v. Samuel I. White, P.C., Case No. 4:16-cv-00018-LRL, in the U.S. District Court for the Eastern District of Virginia at Newport News. The appellate case is captioned as Ronnie Davis v. Samuel I. White, P.C., Case No. 18-1467, in the United States Court of Appeals for the Fourth Circuit. As previously reported in the Class Action Reporter, Magistrate Judge Lawrence R. Leonard granted the Defendant's Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. The matter concerns real property formerly owned by the Plaintiff, located at 5614 Fairfield Lane, in Hayes, Gloucester County, Virginia. On Nov. 25, 1998, the Plaintiff as honorably discharged from the United States Army. His military service allowed him to obtain refinancing for his residential mortgage on the Property through the Veterans Administration. On April 18, 2015, the Plaintiff filed suit against the Defendant in the U.S. District Court for the District of Maryland. The Defendant filed a Motion to Dismiss for Failure to State a Claim on May 12, 2015. In response, the Plaintiff filed an Amended Complaint on June 5, 2015. The Defendant filed a Second Motion to Dismiss for Failure to State a Claim or to Strike First Amended Complaint on June 18, 2015. Ultimately, the Maryland Action was disposed of by the Hon. Richard D. Bennett's March 24, 2016 Memorandum Order and Opinion. On March 24, 2016, the case was officially transferred to the Newport News division of the U.S. District Court for the Eastern District of Virginia, pursuant to Judge Bennett's Memorandum Order and Opinion. The parties consented to Magistrate Judge jurisdiction.[BN] Plaintiff-Appellant RONNIE DAVIS, on behalf of himself and all others similarly situated, is represented by: Harlan S. Miller, III MILLER LEGAL, P.C. 646 Vineville Avenue Macon, GA 31204 Telephone: (404) 931-6490 E-mail: hmiller@millerlegalpc.com - and - Stephen B. Pershing, Esq. 1416 E Street, NE Washington, DC 20002 Telephone: (202) 642-1431 E-mail: steve@pershinglaw.us Defendant-Appellee SAMUEL I. WHITE, P.C., is represented by: Lisa Hudson Kim, Esq. SAMUEL I. WHITE, PC 5040 Corporate Woods Drive Virginia Beach, VA 23462 Telephone: (757) 457-4234 - and - John Curtis Lynch, Esq. Andrew Brian Pittman, Esq. TROUTMAN SANDERS, LLP 222 Central Park Avenue Virginia Beach, VA 23462-0000 Telephone: (757) 687-7765 E-mail: john.lynch@troutmansanders.com andrew.pittman@troutmansanders.com SC JOHNSON: Mosquito Repellant Ineffective, "Bourbia" Suit Says ---------------------------------------------------------------- Daniel Bourbia, individually and on behalf of all others similarly situated, Plaintiff, v. S.C. Johnson & Son, Inc., Defendant, Case No. 18-cv-03944 (S.D. N.Y., May 2, 2018), seeks compensatory, statutory, and punitive damages, prejudgment interest on all amounts awarded, restitution and all other forms of equitable monetary relief, reasonable attorneys' fees and expenses and costs of suit resulting from unjust enrichment, breach of implied and express warranty, fraud and violation of New York General Business Laws and the Magnuson-Moss Warranty Act. S.C. Johnson manufactures "Off! Clean Feel" insect repellent. Bourbia claims that Off! Clean Feel was ineffective in repelling Aedes mosquitoes and Culex mosquitoes. [BN] Plaintiff is represented by: Scott A. Bursor, Esq. Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com ykopel@bursor.com aleslie@bursor.com SCHLUMBERGER TECHNOLOGY: Court Sets Conference in "Martinez" ------------------------------------------------------------ The United States District Court for the District of New Mexico issued an Initial Scheduling Order in the case captioned SAUL MARTINEZ, JR., on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant, No. 1:16-cv-00945-JCH-KRS (D.N.M.). A full-text copy of the District Court's April 23, 2018 Order is available at https://tinyurl.com/y8bkkfts from Leagle.com. Saul Martinez, Jr., on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff, represented by Daniel M. Faber, Law Office of Daniel Faber, Don Foty -- DFoty@kennedyhodges.com -- Kennedy Hodges, LLP, pro hac vice & William Hogg, Kennedy Hodges, LLP. Schlumberger Technology Corporation, Defendant, represented by Heather D. Hearne -- hdh@kullmanlaw.com -- The Kullman Firm, P.L.C., Jeffrey L. Lowry jllowry@rodey.com -- Rodey, Dickason, Sloan, Akin & Robb, P.A., Martin J. Regimbal -- mjr@kullmanlaw.com -- The Kullman Firm, PLC, Robert Lombardi -- rpl@kullmanlaw.com -- The Kullman Firm, pro hac vice & Samuel Zurik -- sz@kullmanlaw.com -- The Kullman Firm, P.L.C., pro hac vice. SCI DIRECT: Doyle Sues over Wrongful Employment Practices --------------------------------------------------------- James Doyle, individually and on behalf of all others similarly situated, Plaintiff v. SCI Direct, Inc., and Does 1 to 10, inclusive, Defendants, Case No. BC705666 (Cal. Super., Los Angeles Cty., May 18, 2018) is an action against the Defendants for failure to reimburse business expenses under the California Labor Code. It is also an action against the Defendants' unfair business practices. The Plaintiff alleges that the Defendants failed to indemnify or in any manner reimburse the Plaintiff for the costs associated with his travel, including fuel, maintenance, vehicle depreciation, the cost of maintaining a personal cell phone, computer with internet connection, business cards, and other things necessary for the conduct of the Defendants' business. Mr. Doyle was employed by the Defendants as sales representative in Los Angeles, California. SCI Direct, Inc. provides cremation services for families in the United States. SCI Direct, Inc. operates as a subsidiary of SCI Capital Holdings, Inc. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com twheeler@ toddflaw.com SCOTT HOTEL: Court Discharges Show Cause Order in "Kratzer" Suit ---------------------------------------------------------------- In the case, PAUL KRATZER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SCOTT HOTEL GROUP, LLC, Defendant, Case No. 4:17-cv-00212-TWP-DML (S.D. Ind.), Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana, New Albany Division, discharged the Plaintiff's obligation to show cause why the action should not be dismissed for lack of subject matter jurisdiction. On April 4, 2018, the Court issued an Order to Show Cause, directing the Plaintiff to answer why the Court should not dismiss the action for lack of subject matter jurisdiction. It noted that it appeared from the Plaintiff's Complaint, Supplemental Jurisdictional Statement, and second Supplemental Jurisdictional Statement that it likely did not have subject matter jurisdiction over the action under the Class Action Fairness Act. The Defendant filed a motion for attorney fees, arguing that there was no basis to initiate the action because there is no subject matter jurisdiction. On the basis of the perceived lack of subject matter jurisdiction, the Court signed the Defendant's proposed order, granting the motion for attorney fees. The next day, the Court issued its Order to Show Cause. In response to the Order to Show Cause, the Plaintiff has made an initial showing of subject matter jurisdiction for his proposed class action under the Class Action Fairness Act ("CAFA"). He points out that there is no dispute that the putative class exceeds 100 members. Furthermore, he points out that minimal diversity exists because he is an individual Kentucky citizen and the Defendant LLC is a citizen of Delaware and Indiana. Regarding the amount in controversy requirement, the Plaintiff explains that his claims exceed the $5 million threshold. Judge Pratt explains that Indiana law provides that the Defendant's violations of the Indiana Consumer Protection Act may be assessed at $1,000 per violation, and therefore, assuming full capacity of 79 guests for the 116 days the Defendant has been in operation (not including the damages that have accrued since the filing of the lawsuit), the Plaintiff's damages for its violations of the Indiana Consumer Protection Act alone totals $9,164,000 (116 x 79 x $1,000). Accordingly, subject matter jurisdiction is proper in the Court. The Defendant filed a response to the Plaintiff's show cause filing, disputing the figures used by the Plaintiff in an effort to undermine subject matter jurisdiction under CAFA. The Judge notes the futility of the Defendant's argument as the figures used by the Plaintiff are the very numbers that the Defendant proposed in its motion for attorney fees and in its proposed case management plan. Because the Plaintiff has made an initial showing of subject matter jurisdiction under CAFA, the Judge determines that the action may proceed at the stage of the litigation. She discharged the Plaintiff's obligation to show cause why the action should not be dismissed for lack of subject matter jurisdiction. Because the Order awarding the Defendant its attorney fees was based on a preliminary finding that subject matter jurisdiction did not exist, she vacated the Order granting the Defendant's Motion for Attorney Fees. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/vyQhhL from Leagle.com. PAUL KRATZER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jasper D. Ward, IV -- jasper@jonesward.com -- JONES WARD PLC. SCOTT HOTEL GROUP, LLC, Defendant, represented by Patrick A. Shoulders -- PShoulders@zsws.com -- ZIEMER STAYMAN WEITZEL & SHOULDERS & Robert L. Burkart -- RBurkart@zsws.com -- ZIEMER STAYMAN WEITZEL & SHOULDERS. SI MARKET FRESH: "Alario" Suit Seek For Unpaid Overtime Wages -------------------------------------------------------------- FRANK ALARIO, individually and on behalf of all others similarly situated, Plaintiff v. SI MARKET FRESH CORP. d/b/a Mignosi's Supermarket; SAM KAKAR; and RUBY KAKAR, Defendants, Case No. 1:18-cv-02988-FB-SMG (E.D.N.Y., May 21, 2018), seeks to recover unpaid overtime wages, liquidated damages and attorneys' fees, pursuant to the Fair Labor Standards Act and New York Labor Law. Plaintiff was employed by the Defendants as cashier on September 29, 2015 to March 12, 2018. SI Market Fresh Corp. d/b/a Mignosi's Supermarket is a domestic business corporation organized under the laws of the State of New York. [BN] The Plaintiff is represented by: Robert D. Salaman, Esq. AKIN LAW GROUP PLLC 45 Broadway, Suite 1420 New York, NY 10006 Telephone: (212) 825-1400 E-mail: rob@akinlaws.com SILVERADO STAGES: Doesn't Pay OT to Drivers, Razani Alleges ----------------------------------------------------------- DAVID RAZANI, individually and on behalf of all others similarly situated, Plaintiff v. SILVERADO STAGES, INC., and Does 1 through 100, Defendants, Case No. BC706905 (Cal. Super., Los Angeles Cty., May 18, 2018) is an action against the Defendants for failure to pay wages, overtime compensation, provide meal periods, provide rest periods, and provide accurate itemized wages statements, pursuant to the Fair Labor Standards Act. Silverado Stages, Inc. was employed by the Defendants as a driver from July 26, 2012 to June 30, 2017. Silverado Stages, Inc., a private motorcoach operator, provides charter bus services in California and the Western States. Silverado Stages, Inc. was founded in 1987 and is based in San Luis Obispo, California. It operates terminals in San Luis Obispo, Sacramento, Santa Barbara, Long Beach, Pomona, and Santa Ana. [BN] The Plaintiff is represented by: Richard E. Quintiloneii, Esq. George A. Aloupas, Esq. QUINTILONE & ASSOCIATES 22974 El Toro Road, Suite 100 Lake Forest, CA 92630 Telephone: (949) 458-9675 Facsimile: (949) 458-9679 E-mail: REO@QUINTLAW.COM GAA@QUINTLAW.COM SIRIUS XM RADIO: Bettison Sues over Radio Subscription Sales ------------------------------------------------------------ RANDALL BETTISON, individually and on behalf of all others similarly situated, Plaintiff v. SIRIUS XM RADIO INC., Defendant, Case No. 18CV19963 (Ore. Cir., Multnomah Cty., May 17, 2018) alleges that the Defendant's conduct amounts to a breach of express and implied contracts, fraudulent misrepresentation, unjust enrichment, and a violation of Oregon's Unlawful Trade Practices Act. According to the complaint, the Defendant offered and sold lifetime subscriptions to consumers in Oregon. The Defendant systematically advertised and sold its lifetime subscriptions to consumers by leading consumers to believe that such lifetime subscriptions were for the lifetime of the consumer. However, when consumers have tried to transfer their lifetime subscriptions from one receiver to another or from one automobile to another, the Defendant has taken the position that the "lifetime" referred to is not the lifetime of the purchasing consumer, but the lifetime of the receiver or automobile. Sirius XM Radio Inc. provides radio broadcasting services in the United States and Canada. The company was incorporated in 1990 and is based in New York, New York. Sirius XM Radio Inc. operates as a subsidiary of Sirius XM Holdings Inc. [BN] The Plaintiff is represented by: Keith S. Dubanevich, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 Email: kdubanevich@stollberne.com SPRINT CORP: Settles Sales Employees' Class Action for $3.65MM -------------------------------------------------------------- Elise Reuter, writing for Kansas City Business Journal, reports that Sprint Corp. reached a $3.65 million settlement of a class- action lawsuit with thousands of sales employees. The June 4 settlement concludes a nine-year lawsuit that was disputed in the U.S. District Court in Kansas City, Kan. In May 2008, a class of 3,919 Sprint business channel sales employees filed suit against Sprint (NYSE: S), claiming the company failed to pay them commissions they were owed after its merger with Nextel Communications Inc. The class includes employees that worked with Sprint from the beginning of 2006 to the end of 2009. The plaintiffs alleged that Sprint's systems were unable to track and calculate commissions and pay data for several years. "We continue to deny the allegations asserted by the plaintiffs, and contend that each class member was compensated appropriately and in accordance with their commission contracts," Sprint stated in an email. The highly technical case required an appointed special master, and involved more than 10 million pages of discovery. According to court documents, the class will receive $1.929 million, with a pro-rata payout of at least $25 based on how long each employee worked for Sprint. The settlement also includes $839,600 in attorneys fees and up to $850,000 in litigation costs. "This was a long and hard fought case with extremely complex data and issues," Michele Fisher, Esq. -- fisher@nka.com -- a partner at Minneapolis-based Nichols Kaster PLLP, representing the plaintiffs, said in a release. "We are fortunate to have had such dedicated and talented experts, and class representatives who never gave up. We believe the result is a fair and reasonable resolution to this litigation." The plaintiffs were represented George Hanson, Esq. -- hanson@stuevesiegel.com -- of Stueve Siegel Hanson LLP, and by Fisher, Paul Lukas and Alex Baggio, Esq. -- abaggio@nka.com -- of Nichols Kaster PLLP. They also are serving as counsel to more than 34,000 retail employees in a related case. Sprint was represented by a team of five law firms, including local attorneys Adam Pankratz of Ogletree Deakins Nash Smoak & Stewart PC; Michael Blumenthal of Seyferth Blumenthal & Harris LLC; and Brian Baggott, Wade Carr and Gregory Wolf of Dentons US LLP. [GN] STATE FARM: Court Certifies Class in "Vogt" ------------------------------------------- In the case, MICHAEL VOGT, on behalf of himself and all others similarly situated, Plaintiff, v. STATE FARM LIFE INSURANCE COMPANY, Defendant, Case No. 2:16-cv-04170-NKL (W.D. Mo.), Judge Nanette K. Laughrey of the U.S. District Court for the Western District of Missouri, Central Division, granted the Plaintiff's motion for class certification. In 1999, Vogt purchased policy form 94030, a flexible premium adjustable whole life insurance policy, from State Farm. The Policy was a universal life insurance policy, a type of "permanent" life insurance that, unlike standard term insurance, is supposed to provide lifetime death benefit protection. Policy owners paid premiums that were deposited into their "Account Value," which accumulated interest at or above a minimum rate that the Policy guarantees. Each month, State Farm was permitted to make a deduction from the Policy that included (1) the cost of insurance, (2) the monthly charges for any riders, and (3) the monthly expense charge. The Policy remained in force so long as there was sufficient money in the Account Value to cover these monthly deductions. The cost of insurance ("COI") charge was calculated using a monthly cost of insurance rate. The Policy provides that COI rates for each policy year are based on the Insured's age on the policy anniversary, sex, and applicable rate class, and can be adjusted for projected changes in mortality. These factors are commonly used to determine mortality expectations for an insured or group of insureds. However, the Plaintiff contends that State Farm in fact uses other, unauthorized factors, having nothing to do with mortality expectations, in determining the Policy's COI rates, and that State Farm thereby deducts COI charges from Account Values in amounts exceeding those authorized by the Policy. The Policy sets the monthly expense charge at $5. However, Vogt contends that, by including unauthorized expenses in the Policy's COI rates, State Farm deducts more than $5 in expense charges, breaching the expense charge provision. State Farm does not deny that it did not disclose to policy owners the assumptions underlying the current COI rates. There is no dispute that a policyholder without knowledge, experience, or training likely would not be able to understand, without assistance, how State Farm determined whether to set COI rates below the maximum rates identified in the Policy, and how much such rates should be. The Policy is a fully integrated contract, and its language is materially the same for all members of the putative class. Neither State Farm's nor the Policy-holder's obligations can be obviated by informal consent or waiver because only an officer has the right to change the Policy, and no agent has the authority to change the Policy or to waive any of its terms. The allegedly unauthorized charges result from the uniform application of the Policy's terms. All policy owners are subject to the same set of COI rates, and all COI rates are calculated using the same undisclosed factors. Vogt brings four claims: two claims for breach of contract, specifically with regard to the COI charges (Count I) and the expense charges (Count II), a claim for conversion with respect to the Account Value (Count III), and a claim for declaratory relief relating to the alleged breaches of the Policy provisions concerning COI and expense charges (Count IV). The class Vogt seeks to certify consists, with the exception of the Excluded Persons, of all persons who own or owned a universal life insurance policy issued by State Farm on Form 94030 in the State of Missouri. The Court previously denied State Farm's motion for summary judgment. Judge Laughrey finds that the Plaintiffs have satisfied the Rule 23(a) and Rule 23(b)(3) requirements. She granted Vogt's motion for class certification. Pursuant to Rule 23(b)(3), the Judge certified a class of the Plaintiffs consisting of all persons who own or owned a universal life insurance policy issued by State Farm on Form 94030 in the State of Missouri for all counts, except that the Excluded Persons are excluded from the class. Pursuant to Rule 23(b)(2), she certified a class of the Plaintiffs consisting of all persons who own or owned a universal life insurance policy issued by State Farm on Form 94030 in the State of Missouri for Count IV alone, except that the Excluded Persons are excluded from the class. She says a class may not be certified for a claim for individualized monetary relief that is not merely incidental to the declaratory relief sought. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/jyV26t from Leagle.com. Michael G. Vogt, Plaintiff, represented by Norman Eli Siegel -- siegel@stuevesiegel.com -- Stueve Siegel Hanson, LLP, Ethan M. Lange -- lange@stueveseigel.com -- Stueve Siegel Hanson, LLP, John J. Schirger -- jschirger@millerschirger.com -- Miller Schirger, LLC, Joseph M. Feierabend -- jfeierabend@millerschirger.com -- Miller Schirger, LLC, Lindsay Todd Perkins -- perkins@stueveseigel.com -- Stueve Siegel Hanson, LLP, Matthew W. Lytle -- mlytle@millerschirger.com -- Miller Schirger, LLC & Patrick J. Stueve -- stueve@stuevesiegel.com -- Stueve Siegel Hanson, LLP. State Farm Life Insurance Company, Defendant, represented by Jeremy A. Root -- jeremy.root@stinson.com -- Stinson Leonard Street LLP -- Todd A. Noteboom -- todd.noteboom@stinson.com -- Stinson Leonard Street LLP, pro hac vice & William L. Greene -- william.greene@stinson.com -- Stinson Leonard Street LLP, pro hac vice. STORCK USA: Judge Dismisses Werther's Underfilling Class Action --------------------------------------------------------------- Rachel Graf, writing for Law360, reports that a New York federal judge on June 8 dismissed a proposed class action alleging the maker of Werther's Original sugar-free chew caramels purposefully underfills the packages of candies, saying the parties had reached an undisclosed settlement. U.S. District Judge Vincent L. Briccetti said Jeffrey Kpakpoe- Awei and Chicago-based Storck USA LP reached an agreement to end allegations that the company fills the 2.75-ounce bags of caramels with unnecessary empty space that misrepresents the amount of chews that are actually in the container. The case is Kpakpoe-Awei v. Storck USA, L.P., Case No. 7:18-cv-01086 (S.D.N.Y.). The case is assigned to Judge Vincent L. Briccetti. The case was filed February 7, 2018. [GN] STRATEGIC LEGACY: Fails to Pay Proper Wages, "Remball" Suit Says ---------------------------------------------------------------- MARLEE REMBALL, individually and on behalf all others similarly situated, Plaintiff v. STRATEGIC LEGACY INVESTMENT GROUP, INC.; SLIG PRIME INDUSTRIES, LLC; KELLY'S COFFEE FASHION PARTNERS, LLC; DOWNTOWN EXECUTIVE MULTIPLEX, LLC; PEDRAM MEHRIAN; EMANUEL SABET; DANIEL SABET; HAJIME TSUHA; SHAHROKH STEVE JAVIDZAD and DOES 1-100, Defendants, Case No. BC706904 (Cal. Super., Los Angeles Cty., May 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Remball was employed by the Defendants but misclassified as an independent contractor. Strategic Legacy Investment Group, Inc. is a private equity investment firm focused mainly in acquisitions of commercial real estate projects. [BN] The Plaintiff is represented by: Carolyn M. Bell, Esq. Kashif Haque, Esq. Samuel A. Wong, Esq. Jessica L. Campbell, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 SUDLER & CO: Court Grants Bids to Dismiss "Horist" Suit ------------------------------------------------------- Judge Robert W. Gentleman of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the separate motions of Sudler and HomeWise to dismiss the case, KEITH HORIST, JOSHUA EYMAN and LORI EYMAN, Plaintiff, v. SUDLER AND COMPANY, d/b/a SUDLER PROPERTY MANAGEMENT, HOMEWISE SERVICE CORP., INC., and NEXTLEVEL ASSOCIATION SOLUTIONS, INC., Defendant, Case No. 17 C 8113 (N.D. Ill.). Plaintiffs Horist, and Joshua and Lori Eyman, brought a five count putative class action complaint against teh Defendants, alleging: (1) violations of the Illinois Consumer Fraud and Deceptive Practices Act ("ICFA") (Count I); (2) violations of the Illinois Condominium Property Act ("Condo Act") (Count II); (3) adding and abetting/inducement to breach fiduciary duty (Count III); (4) common law conspiracy (Count IV); and (5) unjust enrichment (Count V). HomeWise removed the case to the Court under the Class Action Fairness Act. Plaintiff Horist owned a condominium unit at 400 East Ohio Street, Chicago, Illinois and was a member of the 400 East Ohio Association. Plaintiffs Joshua and Lori Eyman owned a condominium unit at 1515 S. Prairie Avenue, Chicago Illinois and were members of the (808) Prairie House at Central Stations Association. Defendant Sudler is a property management company that was engaged by both the 404 East Ohio Association and the Prairie House Association to manage their operations. According to the complaint, HomeWise contracts with property managers to provide, via the internet, electronic copies of documents that sellers of condominium units are required by Section 22.1 of the Condo Act to provide to prospective purchasers. The complaint alleges that Sudler's website has a drop-down menu for its associations' homeowners who need `selling information, and regardless of the association selected, Sudler's site forwards the person seeking selling information directly to the HomeWise internet site. During 2017, both Horist and the Eymans contracted to sell their units. Claiming they had no other option, each had to obtain their selling information from HomeWise. Horist paid $240, consisting of $155 for a paid assessment letter, $80 for a Section 22.1 resale certificate and a $5 convenience fee. The Eymans paid $365, consisting of $150 for a paid assessment letter, $205 for a Section 22.1 resale disclosure package with Assoc. docs. and a $5 convenience fee. According to the Plaintiffs, HomeWise retained what they describe as a minimal "click-fee" and then "kicked back" the rest of its fee to Sudler. The Plaintiffs claim that the Associations indirectly benefit from this practice because it helps reduce Sudler's management fee. Sudler and HomeWise have filed separate motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Judge Gentleman concludes that the Plaintiffs are not among the class of persons the Condo Act is designed to protect. Nor would implying a cause of action in favor of the Plaintiff be consistent with the underlying purpose of the statute, which is to protect prospective purchasers, and any injury that the Plaintiffs might have incurred is not one the statute was designed to prevent. And, implying a private right of action for them to recover damages against defendants is simply not necessary to effectuate the statute's purpose of protecting prospective purchasers. Consequently, the Judge concludes that the Plaintiff fails to state a claim under the Condo Act. As to ICFA, first, the Plaintiffs allege that Defendants' scheme offends public policy because it violates the policy the legislature set out in the Condo Act to protect sellers from excessive charges. As concluded, however, the act is designed to protect purchasers and the association, not sellers. Second, although the Plaintiffs allege generally that the Defendants' conduct is oppressive because the Plaintiffs have no reasonable alternative than to use HomeWise, that argument is based entirely on their missing allegation that the Defendants have somehow caused the association to stop providing the disclosure documents when properly asked. The complaint does not contain even that general allegation, let alone any facts to support such a conclusion. Consequently, the Judge concludes that the Plaintiffs have failed to allege an unfair practice or a violation of the ICFA. Finally, in Count III, the Plaintiffs allege that the Defendants have aided or induced the associations to violate their fiduciary duties owed to the Plaintiffs by allowing the defendants to overcharge them. In Count IV, they allege that the Defendants conspired to overcharge them. Count V is a claim for unjust enrichment. The Judge finds that all these three counts are predicated on the Plaintiffs' alleging either a violation of the Condo Act or the ICFA. Because he has concluded that they have failed to allege those violations, he dismisses Counts III, IV, and V. For the reasons he described, Judge Gentleman granted Defendant HomeWise's motion to dismiss and Defendant Sudler's motion to dismiss. A full-text copy of the Court's April 24, 2018 Memorandum Opinion and Order is available at https://is.gd/IzBdJ4 from Leagle.com. Keith Horist, Joshua Eyman & Lori Eyman, Plaintiffs, represented by David J. Fish, The Fish Law Firm, P.C., Charles Robert Watkins -- charlesw@gseattorneys.com -- Guin Stokes & Evans, LLC, John C. Kunze, The Fish Law Firm, John R. Wylie -- johnwylie@barrettwylie.com -- BarrettWylie, LLC, Kimberly A. Hilton, The Fish Law Firm, P.C. & Stephen T. Sotelo, The Law Office of Thomas J. Homer, P.C. Sudler and Company, doing business as Sudler Property Management, Defendant, represented by Edward P. Gibbons -- egibbons@wwmlawyers.com -- Walker Wilcox Matousek LLP, Arthur Joseph McColgan, II -- amccolgan@wwmlawyers.com -- Walker Wilcox Matousek LLP & Scott Taylor Stirling -- sstirling@wwmlawyers.com -- Walker Wilcox Matousek LLP. HomeWise Service Corp., Inc., Defendant, represented by Philip M. Oliss -- philip.oliss@squirepb.com -- Squire Patton Boggs (US) LLP. NextLevel Association Solutions, Inc., Defendant, represented by Eleanor Hagan -- eleanor.hagan@squirepb.com -- Squire Patton Boggs, pro hac vice, Philip M. Oliss, Squire Patton Boggs (US) LLP & Clair Christine Pena, Squire Patton Boggs (US) LLP, pro hac vice. SWEPI LP: Court Denies Summary Judgment Bid in "Walney" Suit ------------------------------------------------------------ In the case, THOMAS J. WALNEY and RODNEY A. BEDOW, SR., individually and on behalf of all others similarly situated, Plaintiffs, v. SWEPI LP and SHELL ENERGY HOLDING GP, LLC, Defendants, Civil Action No. 13-102 Erie (W.D. Pa.), Judge Joy Flowers Conti of the U.S. District Court for the Western District of Pennsylvania granted in part and denied in part the Plaintiffs' motion for summary judgment, and denied the Defendants' motion for summary judgment. The class action is being prosecuted by Walney and Bedow on behalf of certain Pennsylvania landowners who executed gas and oil leases for the benefit of SWEPI. In the action, the Plaintiffs allege that SWEPI and its general partner, Shell Energy, failed to pay bonus monies that were owed to the various class members under the terms of their respective leases. SWEPI is a limited partnership engaged in the business of oil and gas exploration and production. Beginning in 2011, it sought to acquire mineral leases in certain parts of Pennsylvania with the help of independent contractors, including Southeast Land Services, LLC, who acted as SWEPI's agents. Ultimately, Southeast helped SWEPI obtain more than 2,800 oil and gas leases. Plaintiffs Walney and Bedow are among those landowners who signed lease agreements and memorandum of leases ("MOLs") in favor of SWEPI but were never paid. Walney alleges that, in January 2012, he signed a lease agreement covering 42.18 acres of land in exchange for a promised bonus of $137,085. Bedow signed multiple lease agreements in 2011 and early 2012, which he claims covered 215.897 acres of land. Bedow maintains that he was promised bonuses totaling $701,666.88. In March 2013, Walney commenced the civil class action in the Venango County Court of Common Pleas, asserting claims for breach of contract, fraud, disparagement of title, and promissory estoppel. The case was subsequently removed to the Court and, following various pretrial proceedings, Walney filed the operative Second Amended Complaint, which added Bedow as a co- Plaintiff and asserted additional claims for breach of implied contract and unjust enrichment. On Sept. 14, 2015, the Court entered a memorandum opinion and order certifying a class action relative to the breach of contract claims in Counts I and I(A) of the Second Amended Complaint, pursuant to Rule 23(b)(3). Having engaged in extensive discovery, the parties now seek a summary judgment ruling relative to the breach of contract claims. To that end, the parties submitted cross-motions for summary judgment and extensive related filings. The Plaintiffs contend that the Leases, MOLs and Drafts ("Transactional Documents") constituted enforceable contracts as of the time that the documents were signed and exchanged between the various class members and SWEPI's representatives. They theorize that these contracts provided for an unconditional payment of a sum certain deferred to a date certain. According to them, SWEPI breached its contracts when it failed to pay the bonuses. Consequently, plaintiffs consider the full amounts of the bonuses to be the correct measure of damages in each instance. SWEPI contests each element of the Plaintiffs' claims and also asserts various affirmative defenses. Fundamentally, it denies that enforceable contracts ever came into existence. Assuming that enforceable contracts did exist, SWEPI denies that it breached the contracts. It theorizes that good title was a condition of payment in every case and no evidence exists to show that all class members had good title to the lease rights they purported to convey. On the contrary, it argues that many class members indisputably lacked good title to the gas and oil interests at issue in their leases and, with respect to certain other class members, SWEPI was unable to verify the landowner's title through no fault of its own. Judge Conti concludes, as a matter of law, that enforceable contracts existed between SWEPI and the various class members, inasmuch as the Transactional Documents: (i) demonstrate the parties' mutual intent to be contractually bound, (ii) set forth sufficiently definite terms, and (iii) establish the existence of legally sufficient consideration. She notes SWEPI's motion for summary judgment is predicated solely on its assertion that the Lease Agreements are not legally enforceable. Because she has concluded otherwise, SWEPI's motion will be denied. Turning to the Plaintiffs' motion for summary judgment, the Judge finds that the Plaintiffs did not demonstrate that the payment condition set forth in the Draft is irrelevant as a matter of law. SWEPI, meanwhile, produced evidence indicating that title defects of varying degrees were pervasive among the Drafts at issue in this litigation. Thus, SWEPI may have a potentially viable defense relative to a substantial number of the Drafts held by the class members, the merits of which the Court cannot presently adjudicate. For this reason as well, she will deny the Plaintiffs' request for a class-wide judgment. SWEPI has also adduced sufficient evidence to establish the existence of a genuinely disputed issue relative to its liability on the claims asserted by the 17 class members in question. There are also genuine issues of fact exist about whether these disputed Drafts were cancelled or whether the payees' failure to present them was otherwise excused. SWEPI also asserts that certain of the transactions listed in the Plaintiffs' Exhibit 11, designated "Class Claims Analysis," involve payees who were paid bonuses through replacement drafts. More specifically, it represents that the following transactions should be removed from the list of class claims: Count Nos. 93 (Duffola), 119 (Grentz), 188 (McGinnis) and 210 (Peirish). The Plaintiffs do not appear to disagree with this point and, to that end, the class counsel has removed the aforementioned transactions from the most recent iteration of the Plaintiffs' Exhibit 11. Accordingly, the Judge will moot and deny the Plaintiffs' motion for summary judgment insofar as it relates to those claims. Finally, the Plaintiffs' motion for summary judgment requests an award of damages in the aggregate amount of $34,737,550.84 along with prejudgment interest. This figure is predicated on their assumption that each of the class claimants should recover the full amount of his or her Lease bonuses without regard to issues of damage mitigation. Given the various factual issues that exist relative to the enforceability of the Lease Agreements and SWEPI's liability thereunder, the Judge cannot say that the Plaintiffs are entitled, as a matter of law, to the aggregate damages award they are seeking. For these reasons, Judge Conto denied SWEPI's motion for summary judgment, and granted in part and denied in part the Plaintiffs' motion for summary judgment. She granted it insofar as she has concluded, as a matter of law, that enforceable contracts existed between SWEPI and the various class members. She otherwise denied the Plaintiffs' motion. An appropriate order follows. A full-text copy of the Court's April 20, 2018 Opinion is available at https://is.gd/J26y0g from Leagle.com. THOMAS J. WALNEY & RODNEY A. BEDOW, SR, individually and on behalf of all others similarly situated, Plaintiffs, represented by Joseph E. Altomare, The Law Office of Joseph Altomare. SWEPI LP & SHELL ENERGY HOLDING GP, LLC, Defendants, represented by Jeremy A. Mercer -- jeremy.mercer@nortonrosefulbright.com -- Norton Rose Fulbright US LLP & Daniel M. McClure -- dan.mcclure@nortonrosefulbright.com -- Norton Rose Fulbright US LLP. SOUTHEAST LAND SERVICES LLC, Movant, represented by Jeremy A. Mercer, Blank Rome LLP. SWITCH INC: Rosen Law Firm Files Securities Class Action -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on June 11 disclosed that it has filed a class action lawsuit on behalf of purchasers of Switch, Inc. (NYSE:SWCH) Class A common stock pursuant to and/or traceable to Switch's Initial Public Offering ("IPO") commenced on or around October 6, 2017. The lawsuit seeks to recover damages for Switch investors under the federal securities laws. To join the Switch class action, go to http://www.rosenlegal.com/cases-1351.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. 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 made false and/or misleading statements and/or failed to disclose that: (1) Switch's Grand Rapids and Atlanta facilities would never be as profitable as its Las Vegas facility, diminishing the yield on Switch's recent capital expenditures acquiring and building out those facilities will bear; (2) Switch's high capital expenditures to create high redundancy levels at its facilities were not as profitable as they once had been in the past; (3) Switch had already spent an additional more than $64 million on unbudgeted capital expenditures during the third quarter of 2017 that was not disclosed to investors until after the IPO; (4) Switch recognized $9.4 million in revenues during FY17 that it would not provide colocation services for until FY18, meaning its reported FY17 revenue growth and its FY18 revenue prospects were both overstated; (5) eBay, Switch's largest colocation customer, would not be taking possession of colocation space it had reserved at Switch's Tahoe/Reno facility in early 2018; and (6) as a result of the foregoing, at the time of the IPO, Switch's business and financial prospects were not what defendants had led the market to believe they were in the Registration Statement. 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 August 10, 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-1351.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] SYSCO CORP: Class, Subclasses in "Martin" FLSA Suit Certified ------------------------------------------------------------- In the case, JOHN MARTIN, on behalf of himself and all others similarly situated, Plaintiff, v. SYSCO CORPORATION and SYSCO CENTRAL CALIFORNIA, INC., Defendants, Case No. 1:16-cv-00990-DAD- SAB (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted in part and denied in part the Plaintiff's motion for class certification. The Plaintiff and the putative class members are non-exempt, hourly truck drivers employed by defendants in California. The Plaintiff alleges a number of claims against the Defendants, including that they: (1) required class members to work for more than five hours without a meal period; (2) failed to provide a second meal period to class members whose shifts lasted more than 10 hours; (3) required class members to work more than four hours without a rest period; and (4) failed to provide accurate itemized wage statements. The class claims pursued by the Plaintiff in the matter follow two distinct theories. First, the Plaintiff claims that the Defendants' policies facially violate California law. Second, he asserts that the class members were given a daily, preset route which dictated the order of the deliveries they were to make and, more importantly, set the number of stops that each driver needed to complete prior to taking a meal or rest break. Under this theory, the Plaintiff argues that class members were required to abide by the schedule and could not take breaks prior to the completion of a certain number of deliveries. Because the length of time required to complete these deliveries varied, the class members were frequently unable to take meal and rest breaks as required by California law. On Dec. 18, 2017, the Plaintiff seeks certification of one main class and four subclasses in order to pursue claims related to the alleged rest break and meal period violations under state labor law: a. Main Class: All hourly drivers who are or were employed by Sysco at any time from June 7, 2012, to the date the Court issues an order granting class certification. b. Rest Break Subclass: All hourly drivers who are or were employed by Sysco and worked a shift over 10 hours at any time from June 7, 2012, to the date the Court issues an order granting class certification. c. First Meal Period Subclass: All hourly drivers who are or were employed by Sysco who worked a shift over five ours at any time from June 7, 2012, to the date the Court issues an order granting class certification, where the corresponding e-time records show no 30-minute meal period or show a 30-minute meal period after the 5th hour. d. Second Meal Period Subclass: All hourly drivers who are or were employed by Sysco who worked a shift over 10 hours at any time from June 7, 2012, to the date the Court issues an order granting class certification, where the corresponding e-time records show a second 30-minute meal period after the tenth hour, if at all. e. Waiting Time Penalties Subclass: All hourly drivers who ended their employment with Sysco at any time from June 7, 2013, to the date the Court issues an order granting class certification. The Defendants opposed the motion on Jan. 15, 2018 and the Plaintiff filed a reply on Jan. 29, 2018. The Court heard oral argument on the matter on Feb. 6, 2018. Judge Drozd granted in part the Plaintiff's motion for class certification. He certified these classes for the purpose of pursuing claims premised on the facial invalidity of the Defendants' rest and meal break policies: a. Main Class: All hourly drivers who are or were employed by Sysco at any time from June 7, 2012 to the date of the order. b. Rest Break Subclass: All hourly drivers who are or were employed by defendants in California and worked a shift over 10 hours at any time from June 7, 2012 to the date of the order. c. First Meal Period Subclass: All hourly drivers who are or were employed by the Defendants in California who worked a shift over five hours at any time from June 7, 2012 to the date of the order, where the corresponding e-time records show no 30-minute meal period or show a 30-minute meal period after the fifth hour. d. Second Meal Period Subclass: All hourly drivers who are or were employed by defendants in California who worked a shift over 10 hours at any time from June 7, 2012 to the date of the order, where the corresponding e-time records show a second 30- minute meal period after the tenth hour, if at all. e. Waiting Time Penalties Subclass: All hourly drivers who ended their employment with Sysco at any time from June 7, 2013 to the date of the order. The Judge denied in part the Plaintiff's motion for class certification to the extent the Plaintiff seeks certification of the certified classes for the purpose of pursuing claims under the theory that the route manifests set forth a required schedule to which class members were required to adhere. He directed the parties to meet and confer promptly upon service of this order concerning the submission of a joint stipulated class notice and distribution plan, based on the subclasses as certified in the Order. The parties will file either a stipulated class notice and distribution plan or a notice that no stipulation can be reached within 21 days of service of the Order. If the parties cannot agree to a class notice or distribution plan, the Plaintiff will submit a proposed class notice and distribution plan within 35 days of service of the Order. The Defendants will have 14 days following the Plaintiffs' submission of a proposed class notice and distribution plan to file any objections thereto. The Plaintiff will have seven days thereafter to submit a reply. The Judge referred back the matter to the assigned magistrate judge for further scheduling and other proceedings consistent with the Order. A full-text copy of the Court's April 20, 2018 Order is available at https://is.gd/ehoCIn from Leagle.com. John Martin, on behalf of himself and all others similarly situated, and on behalf of the general public,, Plaintiff, represented by David Thomas Mara -- dmara@turleylawfirm.com -- The Turley & Mara Law Firm, APLC, Jessica Renee Corrales, Turley Law Firm, APLC, Jill Marie Vecchi, Turley & Mara Law Firm, APLC, Matthew Evan Crawford, The Turley & Mara Law Firm, APLC, William Turley -- bturley@turleylawfirm.com -- The Turley & Mara Law Firm, APLC & Gwendolyne Nicole Ousdahl -- nousdahl@turleylawfirm.com -- Turley and Mara Law Firm. Sysco Corporation & SYSCO Central California, Inc., Defendants, represented by Diamond M. Hicks, Baker & Hostetler LLP, Margaret Rosenthal -- mrosenthal@bakerlaw.com -- Baker and Hostetler LLP, Nicholas D. Poper -- npoper@bakerlaw.com -- Baker & Hostetler LLP & Sabrina Layne Shadi -- sshadi@bakerlaw.com -- Baker and Hostetler LLP. SZECHAUN TOKYO OF SEA: Underpays Cooks, "Bolanos" Suit Alleges -------------------------------------------------------------- GREGORIO BOLANOS, individually and on behalf of all others similarly situated, Plaintiff v. SZECHAUN TOKYO OF SEA GIRT CORP. d/b/a SZECHUAN TOKYO, and PETER ZHANG, Defendants, Case No. 3:18- cv-09773 (D.N.J., May 29, 2018) is an action against the Defendants for failure to pay non-exempt employees at the statutory overtime rate of time and one-half for all hours worked over 40 hours per workweek. Mr. Bolanos was employed by the Defendants as cook from January 2017 to June 2017. The Defendants rehired Mr. Bolanos from September 2017 to March 2018. Mr. Bolanos alleged in the complaint that he was paid a monthly rate of $3,000 per month, which equates to $750 per week straight time for all hours worked, and worked 76 hours per week (for a regular rate of pay of $9.87 per hour). Work performed above 40 hours per week was not paid at the statutory rate of time and one-half as required by state and federal law. Szechaun Tokyo is a domestic business corporation organized under the laws of the State of New Jersey, with a principal place of business located at 2204 Highway 35, Suite 4, Sea Girt, New Jersey. [BN] The Plaintiff is represented by: Giustino (Justin) Cilenti, Esq. CILENTI & COOPER, PLLC 708 Third Avenue 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: info@jcpclaw.com TAPIOCA EXPRESS: EEOC Files Sexual Harassment Class Action ---------------------------------------------------------- Rafael Avitabile and Omari Fleming, writing for NBC 7, report that the Equal Employment Opportunity Commission (EEOC) announced on June 13 it filed a class-action sexual harassment lawsuit against the owner of two Tapioca Express franchises in the South Bay. The lawsuit alleges the owner, Eduardo Rivera, created a hostile work environment for young female employees at his franchises in Chula Vista and National City with unwanted touching, sexual comments and comments about their bodies, and inappropriate jokes. According to the EEOC, Mr. Rivera would wait for moments his wife was away or when he couldn't be seen on camera and touch his female employees from behind and even push up against them from behind. The alleged harassment dates back as far as 2013 when Mr. Rivera was in his 50s. The suit says some employees felt compelled to quit their jobs because of the alleged harassment. The claim states the EEOC sent communications to Mr. Rivera and the parent company about "sexual harassment and constructive discharge." The EEOC issued a statement that read in part: "Sex harassment remains a persistent problem which requires all employers to ensure accountability, training and leadership to promote a workplace free of harassment." Mr. Rivera's son and daughter also named in the suit because they're owners and had the power to "prevent and correct the unlawful employment actions." The EEOC said it filed the suit after first attempting to reach a pre-litigation settlement. Mr. Rivera said he was shocked when he learned of the allegations and said they were untrue. NBC 7 reached out to Tapioca Express for comment and has not heard back. Help Sought Replacing Community Center's Food Delivery Truck Tapioca Express is a popular milk tea franchise with more than 20 locations in San Diego, Orange and Los Angeles Counties. [GN] TENNESSEE: Court Grants Protective Order in "Abriq" --------------------------------------------------- The United States District Court for the Middle District of Tennessee, Nashville Division, granted Plaintiffs' Request for Protective Order in the case captioned ABDULLAH ABRIQ, on behalf of himself and all others similarly situated v. METROPLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, No. 3:17-0690 (M.D. Tenn.). The Plaintiff alleges that ICE officials took custody of him, pending civil removal proceedings. Of the claims originally made by the Plaintiff, only his Fourth Amendment claim remains, all other claims having been dismissed upon Metro's motion. Defendant Metropolitan Government of Nashville and Davidson County has filed a motion to compel the Plaintiff to answer interrogatories and provide documentation about his immigration status, the status of his immigration proceedings, and the information that ICE possessed to support its arrest of the Plaintiff. The Court finds that Metro has not carried that burden here. The only relevance that the Plaintiff's immigration status might have to the remaining Fourth Amendment claim is whether that information informed or supported the DCSO's decision to take custody of Plaintiff. Metro knows what information it had and relied upon at that time in making that decision. Any other information of the Plaintiff's actual immigration status that might now be provided is immaterial, because it has nothing to do with what Metro knew at the time it took custody of the Plaintiff. Put another way, while information about the Plaintiff's immigration status known to Metro at the time the Plaintiff was placed in the custody of the DCSO may be relevant and discoverable, discovery provided by the Plaintiff or third- parties regarding his immigration status or related information is not probative of the facts Metro knew at the time of the Plaintiff's custody and is therefore irrelevant to the Plaintiff's Fourth Amendment claims. If the Plaintiff's immigration status is a matter of public record or if there is a public record of the Plaintiff's immigration proceeding, which Metro asserts and the Plaintiff disputes, but which neither party has satisfactorily demonstrated to the Court, then Metro may obtain those records because the concerns about the Plaintiff divulging information are substantially minimized. To the extent that the public records referenced by Metro exist, proportionality considerations support the Court's determination that the Plaintiff need not produce the information because the very nature of public records allows for accessibility by Metro. The Court clarifies that, other than the specific probable cause for ICE's arrest of the Plaintiff on April 6, 2017, Metro may not seek the Plaintiff's immigration records or information about past or pending immigration or removal proceedings by deposition testimony (including of third-party witnesses), subpoena or other compulsion, Metro may only obtain information that is a matter of public record, that is, information that is otherwise available to the general public. Accordingly, Metro's motion for an order compelling discovery is denied except as provided herein, and the Plaintiff's request for a protective order is granted as provided herein. A full-text copy of the District of Court's April 23, 2018 Memorandum and Order is available at https://tinyurl.com/y84nlwfs from Leagle.com. Abdullah Abriq, on behalf of himself and all others similarly situated, Plaintiff, represented by Anthony A. Orlandi -- anthonyo@bsjfirm.com -- Branstetter, Stranch & Jennings, PLLC, Harry Elliott Ozment, Ozment Law, James Gerard Stranch, IV, Branstetter, Stranch & Jennings, PLLC & Tricia Herzfeld, Branstetter, Stranch & Jennings, PLLC, 1214 Murfreesboro Pike. Metropolitan Government of Nashville & Davidson County, Defendant, represented by Allison L. Bussell -- allison.bussell@kleinbussell.com -- Klein Bussell, PLLC, Kevin C. Klein -- kevin.klein@kleinbussell.com -- Klein Bussell, PLLC & Tracy M. Lujan -- tracy.lujan@kleinbussell.com- Klein Bussell, PLLC. Immigration Reform Law Institute, Amicus, represented by John I. Harris, III -jharris@slblawfirm.com -- Schulman, LeRoy & Bennett. Immigration and Customs Enforcement, Objector, represented by Mark H. Wildasin, U.S. Attorney's Office (Nashville Office) & Michael L. Roden, Office of the United States Attorney. TETRA TECH: Bayview Residents File Fraud Class Suit --------------------------------------------------- Bayview Hunters Point Residents, Danielle Carpenter, Catherine Muhammad, and on behalf of all others similarly situated, Plaintiffs, vs. Tetra Tech EC, Inc., Tetra Tech, Inc., Lennar, Inc. and Five Point Holdings, LLC and Does 1-100 Inclusive, Defendants, Case No. CGC-18-566188 (Cal. Super., May 1, 2018), seeks injunctive relief and punitive damages resulting from fraud, negligence per se, bad faith breach of third party contract, unfair and fraudulent business practices, false and misleading statements. Tetra Tech allegedly falsified soil samples from the Hunters Point Naval Shipyard, a toxic waste site, of which they were paid $1.1B to clean up the said site. The predominantly African- American neighborhoods in Bayview Hunters Point claim to be suffering from cancer, asthma and other diseases caused on account of toxic dumping. Hunters Point Naval Ship Yard housed the Naval Radiological Defense Laboratory from 1948 to 1969 whose activities included radiological decontamination of ships exposed to atomic weapons testing, experimentation and research. [BN] Plaintiff is represented by: Charles A. Bonner, Esq. A. Cabral Bonner, Esq. LAW OFFICES OF CHARLES A. BONNER 475 Gate Five Rd., Suite 212 Sausalito, CA 94965 Tel: (415) 331-3070 Fax: (415) 331-2738 Email: cbonner799@aol.com cabral@bonnerlaw.com TIMBERWORKS CONSTRUCTION: Faces "Zaragoza" Suit in Sacramento ------------------------------------------------------------- A class action lawsuit has been filed against Timberworks Construction, Inc. The case is captioned as Victor F. Lua Zaragoza, individually and on behalf of all others similarly situated, Plaintiff v. Timberworks Construction, Inc., and Does 1 thru 50, Defendants, Case No. 34-2018-00233435-CU-OE-GDS (Cal. Super., Sacramento Cty., May 21, 2018). [BN] The Plaintiff is represented by Eric B Kingsley, Esq. TLC RESORTS: Made Unsolicited Calls, "Augustine" Suit Alleges ------------------------------------------------------------- OPHELIA AUGUSTINE, individually and on behalf of all others similarly situated, Plaintiff v. TLC RESORTS VACATION CLUB, LLC, and DOES 1-20, Defendants, Case No. 3:18-cv-01120-H-JMA (S.D. Cal., June 1, 2018) is an action against the Defendants resulting from their illegal actions in negligently, knowingly, and willfully contacting Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act. TLC Resorts Vacation Club, LLC is a limited liability company incorporated and existing under the laws of the State of Nevada. [BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. Yana A. Hart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com yana@westcoastlitigation.com - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7429 Facsimile: (866) 431-3292 E-mail: DanielShay@SanDiegoBankruptcyNow.com TOTAL CARD: "Young" Suit Disputes Collection Letter --------------------------------------------------- Sally Young, individually and on behalf of all others similarly situated, Plaintiff, v. Total Card, Inc., Cavalry SPV I, LLC and John Does 1-25, Case No. 18-cv-00198, (E.D. Tex., May 1, 2018), seeks damages and declaratory and injunctive relief pursuant to the Fair Debt Collections Practices Act. Cavalry is a debt collection agency assigned to collect a credit card obligation that was allegedly incurred to HSBC Bank Nevada, N.A. and/or Capital One Bank (USA), N.A. by Young. They sent a letter that states that Cavalry will not sue the consumer without clearly stating that the consumer could no longer be sued by any party and failed to disclose that the previously-lapsed statute of limitations to file a lawsuit to collect the debt will recommence upon payment. Said letter was sent on or after a year prior to the filing of this action, says the complaint. [BN] Plaintiff is represented by: Yaakov Saks, Esq. RC LAW GROUP, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Ext. 101 Fax: (201) 282-6501 Email: ysaks@rclawgroup.com TRACKER MARINE: Court Upholds Damages in Document Fees Case ----------------------------------------------------------- SBJ reports that in the case of Robert and Janet McKeage, a $75 charge by Tracker Marine Boat Center cost the Springfield company more than $21.7 million. The McKeages, of St. Clair, won a class-action suit against Tracker Marine, a subsidiary of Bass Pro Shops, seeking damages for unlawful charges in the form of "document fees" slapped on to boat, trailer and recreational vehicle purchases, according to The Missourian. The McKeages were charged $75 in 2008, but the document fees applied range from $25 to $150. According to the suit, document fees are an "unauthorized practice of law in Missouri since the 1950s" when created by someone not licensed to practice law. The U.S. Supreme Court upheld the damages on Tracker Marine sales dating back to 2004. [GN] TRANSWORLD SYSTEMS: Made Unsolicited Calls, "Burke" Suit Claims --------------------------------------------------------------- Russ Burke, individually and on behalf of all others similarly situated, Plaintiff v. Transworld Systems, Inc., Defendant, Case No. 2:18-cv-04698 (C.D. Cal., May 29, 2018) alleges that the Defendant negligently, knowingly, and willfully placed calls using an artificial or prerecorded voice to Plaintiff's cellular phone in violation of the Telephone Consumer Protection Act. Transworld Systems Inc. provides accounts receivable, debt recovery, and past due accounts services for businesses, medical companies, dental companies, education facilities, Fortune 500 companies, and small businesses in the United States and internationally. The company has strategic alliances with athenahealth, eClinicalWorks, LeonardoMD, MDeverywhere, QuickBooks, Sikka Software Corporation, and TotalMD. Transworld Systems Inc. was founded in 1970 and is based in Horsham, Pennsylvania. [BN] The Plaintiff is represented by: Trinette G. Kent, Esq. LEMBERG LAW, LLC 1333 Stradella Road Los Angeles, CA 90077 Telephone: (480) 247-9644 Facsimile: (480) 717-4781 E-mail: tkent@lemberglaw.com TULARE, CA: Court Approves $270K "Seguin" FLSA Class Settlement --------------------------------------------------------------- The United States District Court for the Eastern District of California granted Joint Motion for Approval of the Settlement Agreement in the case captioned HENRY SEGUIN, individually and on behalf of all others similarly situated, Plaintiff, v. COUNTY OF TULARE, Defendant, No. 1:16-cv-01262-DAD-SAB (E.D. Cal.). The Plaintiff commenced this action alleging violations of the Fair Labor Standards Act (FLSA), based on the defendant's use of an illegal compensation computation method, which under- calculated the plaintiff's regular rate of pay and resulted in underpayment with respect to overtime hours. In his complaint, the plaintiff alleges that he and the putative class members were denied proper compensation in violation of the FLSA when the defendant failed to include all statutorily required forms of compensation in the regular rate of pay used to calculate the plaintiffs' overtime compensation. Here, the parties dispute whether the FLSA violation at issue in this case was willful. All of these issues impact the extent of defendant's FLSA liability in this case. Based on the aspects of the action discussed above, the court is satisfied that there are bona fide disputes at issue here. Plaintiffs' Range of Possible Recovery Under the terms of the settlement agreement, the defendant will pay the plaintiff and the putative class members a total sum of $191,579.81, which represents approximately 63% of the maximum value of the claims if the plaintiff and the putative class members were to prevail on every disputed issue. According to the declaration of the plaintiffs' attorney David E. Mastagni, Esq., the plaintiffs tendered a settlement demand of $384,586.63, of which $303,586.63 would go to the plaintiffs and the remainder would be allocated for attorneys' fees and costs. The Defendants provided a counteroffer of $110,024.84, of which $60,024.84 would go to the plaintiffs and the remainder would be allocated for attorneys' fees and costs. After evaluating the strengths and weaknesses of the parties' positions during the court supervised settlement conference, Magistrate Judge Seng proposed a global settlement of $270,000, which the parties accepted. In light of the complexity of this case and the difficulty the parties face in estimating the likely value of the plaintiffs' claim without conducting an exact calculation, the court finds the rationale underlying the agreement and the recovery obtained as a result to be reasonable. The Stage of the Proceedings and the Amount of Discovery Completed Here, the parties have sufficient information to make an informed decision regarding settlement. The Defendant also produced thousands of records related to hours worked and compensation paid, as well as policies, memoranda of understanding, and other local authorities governing compensation for the plaintiff and the putative class members. Under these circumstances, the court finds that the parties had sufficient information to reach an appropriate settlement. The Seriousness of the Litigation Risks Faced by the Parties Here, the named plaintiff believes his claims are meritorious but concedes that if this case were to proceed to trial, he would face uncertainties about how to calculate damages due to the bona fide disputes between the parties. The Plaintiff also may not recover at trial based upon the defendant's alleged willful violation of the law and a finding in the defendant's favor on that issue would reduce the claimed damages by 50%. Accordingly, consideration of this factor weighs in favor of approval of the parties' FLSA settlement. The Scope of Any Release Provision in the Settlement Agreement Here, the release provision is limited to claims known or unknown, foreseen or unforeseen, arising out of the matters raised in the Complaint or related thereto as of and including the Effective Date of this Agreement, as well as any further claims under the FLSA for any alleged FLSA violation that has occurred up to and including the Effective Date of this Agreement. The parties explain that this latter provision, releasing all FLSA claims whether or not they are related to the matters raised in this case, is necessary in order to account for the potential claims related to HIL compensation. Under these circumstances, the court is satisfied with the parties' explanations as to the scope of the release provision. The Experience and Views of Counsel and the Opinion of Participating Plaintiffs In determining whether a settlement is fair and reasonable, the opinions of counsel should be given considerable weight both because of counsel's familiarity with the litigation and previous experience with cases. Here, the plaintiffs' counsel, Mr. Mastagni, has considerable experience in litigating and settling cases asserting liability pursuant to the Floresdecision and has represented to the court that this settlement is fair, adequate, and in the best interests of the class members. Accordingly, consideration of this factor weighs in favor of approval of the FLSA settlement. The Possibility of Fraud or Collusion The likelihood of fraud or collusion is low when the Settlement was reached through arm's-length negotiations, facilitated by an impartial mediator. Here, the court finds that there is a low probability of fraud or collusion because the settlement negotiations were presided over and facilitated by a magistrate judge of this court. There is nothing on the face of the record to suggest the plaintiff's counsel allowed the pursuit of their own self-interests and that of certain class members to infect the negotiation. Upon considering the totality of the circumstances, the court finds that the proposed settlement is a fair and reasonable resolution of the parties' bona fide disputes. A full-text copy of the District Court's April 23, 2018 Order is available at https://tinyurl.com/yd9g433j from Leagle.com. Henry Seguin, on behalf of himself and all similarly situated individuals, Plaintiff, represented by David Emilio Mastagni -- davidm@mastagni.com -- Mastagni Holstedt, APC, Ian Barclay Sangster -- isangster@mastagni.com -- Mastagni Holstedt, APC, Ace Thomas Tate -- atate@mastagni.com -- Mastagni Holstedt, APC & Isaac Sean Stevens -- istevens@mastagni.com -- Mastagni Holstedt, APC. County of Tulare, Defendant, represented by Jesse Jeremy Maddox - - jmaddox@lcwlegal.com -- Liebert Cassidy Whitmore &Michael David Youril -- myouril@lcwlegal.com -- Liebert Cassidy Whitmore. U.S. HOMELAND SECURITY: Faces "Nielsen" Suit in New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against KIRSTJEN NIELSEN, Secretary of Homeland Security. The case is captioned as D A; S K; and L M, individually and on behalf of all others similarly situated, Plaintiffs v. KIRSTJEN NIELSEN, Secretary of Homeland Security; THOMAS D HOMAN, Deputy Director and Senior Official Performing the duties of the Director, U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, Executive Associate Director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; JOHN TSOUKARIS, Newark Field Office Director for Enforcement and Removal, U.S. Immigration and Customs Enforcement; JEFFERSON B. SESSIONS, Attorney General of the United States and JAMES MCHENRY, Director, Executive Office of Immigration Review, all in their official capacities, Defendants, Case No. 2:18-cv-09214-ES-CLW (D.N.J., May 14, 2018). On May 15, 2018, the Plaintiffs moved to certify the class action lawsuit. The case is assigned to Judge Esther Salas and referred to Magistrate Judge Cathy L. Waldor. The U.S. Department of Homeland Security is a cabinet department of the United States federal government with responsibilities in public security, roughly comparable to the interior or home ministries of other countries. [BN] The Plaintiff is represented by: Vincent E. Gentile, Esq. DRINKER, BIDDLE & REATH, LLP 105 College Road East, Suite 300 Princeton, NJ 08542-0627 Telephone: (609) 716-6500 E-mail: vincent.gentile@dbr.com - and - Ingrid Dahlman Johnson, Esq. DRINKER BIDDLE & REATH, LLP 105 College Road East Princeton, NJ 08542 Telephone: (609) 716-6549 E-mail: ingrid.johnson@dbr.com UNDER ARMOUR: Removes "Murray" Suit to C.D. California ------------------------------------------------------ The Defendant in the case captioned as, Rebecca Elizabeth Murray, individually and on behalf of all others similarly situated, Plaintiff v. Under Armour Inc., DOES 1 through 100, inclusive, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Los Angeles (Case No. BC700750) to the U.S. District Court for the Central District of California on May 15, 2018, and assigned Case No. 2:18-cv-04032-FMO-E (C.D. Cal., May 15, 2018). The case is assigned to Judge Fernando M. Olguin and referred to Magistrate Judge Charles F. Eick. Under Armour Inc. designs, develops, markets, and distributes a range of apparel and accessories using synthetic microfiber fabrications in the U.S. and internationally. The company was founded in 1995 and is headquartered in Baltimore. [BN] The Plaintiff is represented by: Ebby Shahrokh Bakhtiar, Esq. LIVINGSTON BAKHTIAR 3435 Wilshire Boulevard Suite 1669 Los Angeles, CA 90010 Tel: (213) 632-1550 Fax: (213) 632-3100 E-mail: ec@livingstonbakhtiar.com - and - Keith David Griffin, Esq. Thomas Vincent Girardi, Esq. GIRARDI KEESE 1126 Wilshire Boulevard Los Angeles, CA 90017-1904 Tel: (213) 977-0211 Fax: (213) 481-1554 E-mail: kgriffin@girardikeese.com tgirardi@girardikeese.com The Defendant is represented by: Jason Jonathan Kim, Esq. Ann Marie Mortimer, Esq. HUNTON ANDREWS KURTH LLP 550 South Hope Street Suite 2000 Los Angeles, CA 90071 Tel: (213) 532-2000 Fax: (213) 532-2020 E-mail: kimj@huntonAK.com amortimer@huntonAK.com UNITED STATES: Judgment on Pleadings in Suit vs. FEMA Entered ------------------------------------------------------------- In the case, PEOPLE'S WORKSHOP, INC. ET AL., v. FEDERAL EMERGENCY MANAGEMENT AGENCY, ET AL, CV. No. 17-107-JWD-RLB (M.D. La.), Judge John W. DeGravelles of the U.S. District Court for the Middle District of Louisiana granted the Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) filed on behalf of The Town of Clinton; the Board of Aldermen for the Town of Clinton; Lori Ann Bell; and Russ Hicks ("Town Defendants"). In August 2016, Louisiana experienced historic flooding, causing the President to declare a state of emergency. The Plaintiffs allege that, upon the declaration of emergency, the Federal Emergency Management Agency ("FEMA") was required to provide people whose homes were rendered uninhabitable or inaccessible with various forms of disaster assistance on a non-discriminatory basis. The Complaint generally claims that FEMA and its representatives, both federal and local, have failed to provide adequate flood relief to the Plaintiffs. The Plaintiffs allege four causes of action. The first is for failure to provide temporary housing assistance in violation of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. The second is for failing to provide temporary housing assistance in violation of the Plaintiffs' due process rights. The third is for denials and delays of temporary housing assistance in violation of the nondiscrimination provisions of the Stafford Act. The final cause of action is for violating the Plaintiffs' due process rights and Title VI of the Civil Rights Act of 1964. The Plaintiffs' prayer for relief requests the following: 1. FEMA will ensure that all eligible applicants for Temporary Housing Assistance who have applied for such assistance receive it within a reasonable period of time. 2. For a Preliminary and Permanent Injunction restraining the Defendants to provide to persons who submitted applications for Temporary Housing Assistance but have been subsequently denied, Temporary Housing Assistance. 3. For a Preliminary and Permanent Injunction restraining Defendants from having a trailer group site outside of the Town of Clinton. 4. For a Preliminary and Permanent Injunction restraining the East Feliciana Police Jury from forming a Private Task Recovery Committee with public funds which does not include a representative from local agencies and residents of the community which represent a fair and adequate depiction of the Town of Clinton. 5. For a Preliminary and Permanent Injunction prohibiting the East Feliciana Chamber of Commerce from receiving and overseeing FEMA funds (resources) because they are agencies that do not meet the requirements associated with the Stafford Act. 6. Further pray that FEMA will set up trailer sites in the Town of Clinton and utilize the property available and provided by Feliciana Housing Authority as a FEMA property groupsite. 7. For Declaratory Relief 8. For an order allowing the case to proceed as a class action; 9. For costs of suit and reasonable attorney fees; and 10. For such other relief as the Court deems just and proper. Judge DeGravelles finds that the Motion is well founded: as the Town Defendants correctly observe, the Plaintiffs have provided virtually no statutory, regulatory, or jurisprudential support for their claims against the Town Defendants or to establish the Town Defendants' ability or duty to provide relief. The Plaintiffs argue that the Town Defendants, and especially Bell, are not free to frustrate the purposes of the Stafford Act by feeding false information to another government official, asserting that the Town Defendants have not cited authority stating that they may do so. However, this argument, according to the Judge, misstates the relevant burdens. As he sets forth in discussing the principles applicable to motions under Rule 12(c) and 12(b)(6), the Judge says the Complaint must set forth enough information to give rise to a plausible claim for relief. Absent such an initial showing, neither the Court nor the Town Defendants are required to pore over the Constitution and United States Code to ascertain whether a law exists that might support or bar the Plaintiffs' claims. With respect to the few authorities actually relied upon in the Complaint, i.e., the Stafford Act and the Due Process Clause of the Constitution,1 in previous orders, the Judge has ruled that no private right of action is available under the Stafford Act, the Stafford Act also bars liability for the exercise of discretionary functions, the Stafford Act and its associated regulations alone do not give rise to a property interest for due process purposes, and the Plaintiffs have not alleged policies or practices that would support a plausible due process claim. The Judge has also previously disapproved of the Complaint's failure to precisely delineate the scope of the claims against each Defendant. Substantially the same reasoning applies to the Plaintiffs' largely undifferentiated Stafford Act and due process claims against the Town Defendants. Therefore, as currently pled, the Complaint fails to state a claim against the Town Defendants. He acknowledges the Town Defendants' position with respect to granting leave to amend. However, the Fifth Circuit has advised courts to afford a plaintiff "every opportunity" to state a viable claim, especially with respect to an initial complaint. Following the Fifth Circuit's instruction and "wise judicial practice," the Judge will grant the Plaintiffs one additional opportunity to draft a viable complaint. Accordingly, Judge DeGravelles granted the Motion, and dismissed the Plaintiffs' claims against the Town Defendants. The dismissal is with leave to amend. He will issue a separate order concerning leave to amend. A full-text copy of the Court's April 20, 2018 Ruling and Order is available at https://is.gd/gHuXt2 from Leagle.com. People's Workshop, Inc./Department of Feliciana Housing Authority, Through its Duly Authorized President George A. Turner, Lula London, Dora O'Connor, Pamela R. Miller, Linda Keller, Hazel Harrell, Sheila Flowers, Robert Flowers, Eugene Matthews, Beulah Bennett & Walter E. Chapman, on behalf of Themselves and All Those Similiarly Situated, Plaintiffs, represented by Carol D. Powell Lexing, Law Office of Carol D. Powell Lexing. Federal Emergency Management Agency & John F. Kelly, Secretary of Department of Homeland Securety, Defendants, represented by John Joseph Gaupp, United States Attorney's Office. Jody Moreau, Director of Homeland Security East Feliciana Emergency Operations Center, Jim Parker, Deputy Emergency Manager East Feliciana Emergency Operations Center, East Feliciana Police Jury, Glen Kent, Chris Hall, Keith Mills, Dwight Hill & Sean Smith, Defendants, represented by Ben Louis Mayeaux -- bmayeaux@neunerpate.com -- NeunerPate, Carolyn Camilla Cole, Neuner Pate, Jeffrey K. Coreil -- jcoreil@neunerpate.com -- NeunerPate & Morgan Ashley Druhan -- mdruhan@neunerpate.com -- NeunerPate. UNIVERSITY OF SOUTHERN: Amended Complaint Filed in California ------------------------------------------------------------- Hagens Berman Sobol Shapiro LLP on June 13 disclosed that dozens of women have now filed suit against the former gynecologist at the University of Southern California (USC), Dr. George Tyndall, in a mounting class action naming the university, its board of trustees and Dr. Tyndall responsible for decades of sexual violation and molestation of female patients, according to Hagens Berman. The amended complaint, filed June 13, 2018, in the U.S. District Court for the Central District of California adds six plaintiffs, totaling 27 women who have stepped forward to tell their stories in the lawsuit seeking to hold Dr. Tyndall and USC accountable for the decades-long systemic sexual violations that occurred on USC's campus and the university's cover-up. If you were in any way violated or treated inappropriately by USC's Dr. Tyndall during a medical examination, find out more about the lawsuit and your rights. The complaint details the experiences of plaintiffs who endured feeling "sexualized and objectified" by Dr. Tyndall for their ethnic backgrounds, and "hopeless and humiliated" by his invasive and inappropriate touching. Plaintiffs reported that he made them undress in the room with him present, and subjected his patients to unnecessary digital penetration. Tyndall also asked deeply personal and invasive questions about patients' sexual activity and sexuality, making them feel they were present "for his entertainment and exploitation." "Dr. Tyndall's actions and demeanor were vulgar, abusive and completely unacceptable," said Elizabeth Fegan, partner at Hagens Berman representing the proposed class of women against USC and Dr. Tyndall. The lawsuit also shows repeated behavior by Dr. Tyndall to complicate visits, including his requesting unnecessary return visits for simple prescription refills, repeated and unwarranted pelvic exams, and actions that made the plaintiffs feel distressed, violated, objectified and in many instances, avoid seeking further gynecological care. "The women who sought care from Dr. Tyndall trusted him and USC to uphold basic promises to protect them and because they needed medical care," Fegan added. "Dr. Tyndall chose to violate the very people seeking his help, those who would be most vulnerable, and what's worse, USC knew about it." The lawsuit states Dr. Tyndall was expressly indecent with his patients who were non-heterosexual, harassing them with specific questions about their sex lives. "Jane Doe C.L. found Dr. Tyndall's line of questioning appalling," the suit states, adding, "She was highly disturbed by his interest in details about her sex life and sexual preferences. It seemed to her as though Dr. Tyndall was asking questions about her sexual orientation for his own amusement and curiosity." The lawsuit accuses USC of brazen negligence in failing to stop his violation of female students. Dr. Tyndall oversaw tens of thousands of female patients during his time at USC, and the university knew of his behavior since at least the 1990s but failed to take action. According to the complaint, ultimately, in 2017, the university began termination proceedings. However, USC did not contact law enforcement, the attorney general or the medical licensing board, nor did USC inform Tyndall's patients. "On all accounts, USC failed to provide its female students with safe, appropriate and professional healthcare," Fegan said. Seek Help Your protection is Hagens Berman's top priority. We welcome any information, and those who contact our firm may remain anonymous in their potential case. Hagens Berman will request that the Court permit our clients to proceed anonymously as a Jane Doe. Our attorneys have experience in protecting plaintiffs who wish to remain anonymous, both as whistleblowers and as survivors of sexual misconduct. Attorneys at Hagens Berman achieved a nationwide sexual harassment settlement on behalf of 16,000 women and also tried the first ever sexual harassment case in Washington state in 1985. The firm represents multiple women on behalf of a class of all victims who were harassed or otherwise assaulted by Harvey Weinstein, seeking to hold him and his co-conspirators accountable for a years-long pattern of sexual harassment and cover-ups. Recent news headlines have brought these heinous acts to the forefront, and many victims have bravely stepped forward to tell their stories. Hagens Berman continues this fight, working to help achieve justice for those who have been victim to sexual violation, and enforce systemic change. Tell us about your case. About Hagens Berman Hagens Berman Sobol Shapiro LLP -- https://www.hbsslaw.com -- is a consumer-rights class-action law firm with ten offices across the country. The firm has been named to the National Law Journal's Plaintiffs' Hot List eight times. [GN] UNIVERSITY OF WASHINGTON: Court Certifies Class PRA Request Suit ---------------------------------------------------------------- In the case, JANE DOES 1-10, et al., Plaintiffs, v. UNIVERSITY OF WASHINGTON, et al., Defendants, Case No. C16-1212JLR (W.D. Wash.), Judge James L. Robert of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiffs' motion for class certification. On Feb. 9, 2016, Defendant David Daleiden sent a written request to Defendant UW under Washington State's Public Records Act ("PRA") to inspect or obtain copies of all documents that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the [UW] Birth Defects Research Laboratory from 2010 to present. On Feb. 10, 2016, Defendant Zachary Freeman issued a similar PRA request to UW. Among other documents, these PRA requests sought communications between UW or its Birth Defects Research Laboratory, on the one hand, and Cedar River Clinics, Planned Parenthood of Greater Washington and North Idaho, or certain individuals or employees of Cedar River and Planned Parenthood of Greater Washington and North Idaho, on the other hand. Mr. Daleiden's PRA request specifically lists the names of eight such individuals. On July 21, 2016, UW notified Doe Plaintiffs that absent a court order issued by Aug. 4, 2016, UW would provide documents responsive to Mr. Daleiden's PRA request without redaction at 12:00 p.m. on Aug. 5, 2016. On July 26, 2016, UW issued a similar notice to Doe Plaintiffs regarding Mr. Freeman's request and indicated that, absent a court order, UW would provide responsive documents without redaction on Aug. 10, 2016. On Aug. 3, 2016, Doe Plaintiffs filed a complaint on behalf of a putative class seeking to enjoin UW from issuing unredacted documents in response to the PRA requests. They object to disclosure of the requested documents in unredacted form because the documents include personally identifying information such as direct work phone numbers, work emails, personal cell phone numbers, and other information. On the same day that they filed suit, Doe Plaintiffs filed a motion seeking both a temporary restraining order ("TRO") and a preliminary injunction against disclosure of the requested documents. In addition, Doe Plaintiffs filed the present motion for class certification. In their original motion, Doe Plaintiffs ask the court to certify a class consisting of all individuals whose names and/or personal identifying information (work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by UW that are related to fetal tissue research or donations. On Aug.3, 2016, the court granted Doe Plaintiffs' motion for a TRO but set the TRO to expire on Aug. 17, 2016, at 11:59 p.m. On Aug. 17, 2016, the court extended the TRO until such time as the court resolves Doe Plaintiffs' pending motion for a preliminary injunction. On Nov. 11, 2016, the court granted Doe Plaintiffs' motion for a preliminary injunction. After finding that the remaining factors also favored preliminary injunctive relief, the court granted Doe Plaintiffs' motion but narrowed the scope of the preliminary injunctive relief as compared to the relief granted in the TRO. In the preliminary injunction, the court did not prohibit the release of the documents at issue but rather enjoined UW from releasing the requested documents without first redacting all personally identifying information or information for Doe Plaintiffs from which a person's identity could be derived with reasonable certainty. On Dec. 15, 2016, Mr. Daleiden appealed the district court's grant of a preliminary injunction. On Jan. 4, 2017, the Court stayed proceedings at the district court level, including Doe Plaintiffs' motion for class certification, pending the resolution of Mr. Daleiden's appeal. On Aug. 14, 2017, the Ninth Circuit reversed and remanded the court's preliminary injunction order but nevertheless left the preliminary injunction in place for 120 days to allow the district court to enter the necessary findings of fact and conclusions of law supporting injunctive relief. In its Aug. 14, 2017, order, the Ninth Circuit remanded the proceeding to address how disclosure of specific information would violate the constitutional or statutory rights of particular individuals or groups. Following the Ninth Circuit's remand, the court issued an order directing the parties to submit supplemental briefing and other materials responding to the Ninth Circuit's guidance on Doe Plaintiffs' motion for a preliminary injunction. After receiving the parties' supplemental materials on Doe Plaintiffs' motion for a preliminary injunction, and hearing the argument of the counsel, the court reissued the preliminary injunction on Nov. 30, 2017. In its Nov. 30, 2017, order reissuing the preliminary injunction, the court largely adopted Doe Plaintiffs' proposed three sub- groups for purposes of analyzing the First Amendment issues. On Dec. 14, 2017, Doe Plaintiffs filed (1) a notice renoting their motion for class certification, and (2) a motion seeking leave to file a supplemental reply memorandum in support thereof. The Defendants did not file a response to Doe Plaintiffs' motion, and on Dec. 27, 2017, the court granted the motion. On Dec. 28, 2017, Doe Plaintiffs filed their supplemental reply memorandum in support of their motion for class certification. In their supplemental reply, Doe Plaintiffs narrowed their class definition to include all individuals whose names and/or personal identifying information (e.g., work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by UW that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the Lab from 2010 to present. Doe Plaintiffs, however, did not modify their motion to include any subclasses. On March 14, 2018, the court ordered Doe Plaintiffs and Mr. Daleiden to provide supplemental briefing on the issue of subclasses. The parties filed their responses on March 26, 2018. In their response, Doe Plaintiffs argue that, despite their earlier representation that they would identify subclasses to the district court following remand, they now believe that "there is no inherent or realistic danger of conflict, confusion, or tension between the putative class members," and so "a single class may be certified." Nevertheless, they also alternatively propose modifying their previous overarching class definition by including subclasses for each group identified in their earlier preliminary injunction briefing and the court's November 30, 2017, order reissuing the preliminary injunction. Doe Plaintiffs' alternate proposal delineating subclasses is as all individuals whose names and/or personal identifying information (e.g., work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by the University of Washington that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the University of Washington Birth Defects Research Laboratory from 2010 to present, and who: (i) are associated with entities that provide abortions and/or make available fetal tissue to the Birth Defects Research Laboratory; (ii) are associated with the Birth Defects Research Laboratory; or (iii) are associated with medical researchers who use fetal tissue obtained from the Birth Defects Research Laboratory. Mr. Daleiden argues that creating subclasses in this instance does not solve the underlying problems of class certification, and he also argues that the parties should conduct discovery prior to the creation of any subclasses. Judge Robert concludes that Doe Plaintiffs have met their burden of demonstrating that their amended proposed class and three subclasses meet the Rule 23(a) prerequisites. Furthermore, the amended proposed class and subclasses seek injunctive and declaratory relief that, if granted, would be appropriate respecting the class and subclasses as a whole. As such, the Judge concludes that Doe Plaintiffs have also met their burden of demonstrating the requirements of Rule 23(b)(2). Accordingly, he granted Doe Plaintiffs' motion for class certification. The Judge certified the matter as a class action. The class and subclasses are defined as all individuals whose names and/or personally identifying information (e.g., work addresses, work or cell phone numbers, email addresses) are contained in documents prepared, owned, used, or retained by the University of Washington that relate to the purchase, transfer, or procurement of human fetal tissues, human fetal organs, and/or human fetal cell products at the University of Washington Birth Defects Research Laboratory from 2010 to present, and who: (i) are associated with entities that provide abortions and/or make available fetal tissue to the Birth Defects Research Laboratory; (ii) are associated with the Birth Defects Research Laboratory; or (iii) are associated with medical researchers who use fetal tissue obtained from the Birth Defects Research Laboratory. Finally, the Judge appointed Doe Plaintiffs as the class representatives, and further appointed (1) John Doe 1 and Jane Does 3-7 as the representatives of subclass one; (2) Jane Doe 2 as the representative of subclass two; and (3) Jane Does 7 and 8 as the representatives of subclass three. He also appointed Doe Plaintiffs' counsel as the class counsel. A full-text copy of the Court's April 24, 2018 Order is available at https://is.gd/BHoEJL from Leagle.com. Jane Does 1-10, individually and on behalf of others similarly situated & John Does 1-10, individually and on behalf of others similarly situated, Plaintiffs, represented by David B. Edwards - - dedwards@corrcronin.com -- CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP, Jill Diane Bowman -- jill.bowman@stoel.com -- STOEL RIVES, Steven W. Fogg -- sfogg@corrcronin.com -- CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOO RE LLP, Vanessa Soriano Power -- vanessa.power@stoel.com -- STOEL RIVES, Mallory L. Satre -- msatre@corrcronin.com -- CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP & Sara Ainsworth, LEGAL VOICE. University of Washington, a Washington public corporation & Perry Tapper, Public Records Compliance Officer at the University of Washington, in his official capacity, Defendants, represented by Nancy S. Garland, OFFICE OF THE ATTORNEY GENERAL. David Daleiden, an individual, Defendant, represented by Jeffrey Michael Trissell, FREEDOM OF CONSCIENCE DEFENSE FUND, pro hac vice, Peter Breen, THOMAS MORE SOCIETY, pro hac vice, Thomas Brejcha, THOMAS MORE SOCIETY, pro hac vice & William John Crittenden -- wjcrittenden@groffmurphy.com. David Daleiden, an individual, Cross Claimant, represented by Jeffrey Michael Trissell, FREEDOM OF CONSCIENCE DEFENSE FUND, Peter Breen, THOMAS MORE SOCIETY, Thomas Brejcha, THOMAS MORE SOCIETY & William John Crittenden . University of Washington, a Washington public corporation, Cross Defendant, represented by Nancy S. Garland, OFFICE OF THE ATTORNEY GENERAL. David Daleiden, an individual, Counter Claimant, represented by Jeffrey Michael Trissell, FREEDOM OF CONSCIENCE DEFENSE FUND, Peter Breen, THOMAS MORE SOCIETY, Thomas Brejcha, THOMAS MORE SOCIETY & William John Crittenden . Jane Does 1-10, individually and on behalf of others similarly situated & John Does 1-10, individually and on behalf of others similarly situated, Counter Defendants, represented by David B. Edwards, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP, Jill Diane Bowman, STOEL RIVES, Steven W. Fogg, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP, Vanessa Soriano Power, STOEL RIVES, Mallory L. Satre, CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP & Sara Ainsworth, LEGAL VOICE. VALEANT PHARMA: "Hound" Securities Fraud Suit Moved to New Jersey ----------------------------------------------------------------- Judge Denise Cote of the U.S. District Court for the Southern District of New York granted the Defendants' Feb. 2, 2018 motion to transfer the case, HOUND PARTNERS OFFSHORE FUND, LP, HOUND PARTNERS LONG MASTER LP, and HOUND PARTNERS CONCENTRATED MASTER LP, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., J. MICHAEL PEARSON, HOWARD B. SCHILLER, ROBERT S. ROSIELLO, DEBORAH JORN, ARI S. KELLEN, TANYA CARRO, ROBERT A. INGRAM, RONALD H. FARMER, COLLEEN GOGGINS, THEO MELAS-KYRIAZA, ANDERS LôNNER, ROBERT N. POWER, NORMA PROVENCIO, KATHERINE B. STEVENSON, PRICEWATERHOUSECOOPERS LLP, DEUTSCHE BANK SECURITIES INC., HSBC SECURITIES (USA) INC., MUFG SECURITIES AMERICAS INC. f/k/a MITSUBISHI UFJ SECURITIES (USA) INC., DNB MARKETS INC., BARCLAYS CAPITAL, INC., MORGAN STANLEY & CO. LLC, RBC CAPITAL MARKETS, LLC, and SUNTRUST ROBINSON HUMPHREY, INC., Defendants, Case No. 18cv76(DLC)(S.D. N.Y.), to the District of New Jersey. After Valeant stock price declined by nearly 90% between August 2015 to June 2016, numerous lawsuits were brought against it and related parties for, inter alia, securities fraud. The U.S. District Court for the District of New Jersey has before it 27 such actions, consisting of a class action and 26 associated "opt-out" actions. The lawsuit is the 28th filed against Valeant. On Jan. 4, 2018, Hound Partners filed a complaint in this district. The complaint asserts federal securities law claims, as well as state law claims under New Jersey common law and New Jersey's Racketeer Influenced and Corruption Organizations Act. On Feb. 2, 2018, the Defendants filed a motion to transfer the case pursuant to Section 1404 to the District of New Jersey. On March 6, the Defendants filed partial motions to dismiss certain claims. A March 9 Order stayed further briefing on the motions to dismiss pending resolution of the motion to transfer. The motion to transfer became fully submitted on March 28. In seeking to avoid transfer, the Hound Partners primarily argue that the Securities Litigation Uniform Standards Act ("SLUSA") precludes, or at the very least counsels against, transfer. They contend that because they have brought state law claims in addition to their federal claims, and because SLUSA will likely preclude consideration of these state law claims in the District of New Jersey, that the District of New Jersey is not a place where this action "might have been brought," as is required to transfer an action under Section 1404. In the alternative, they contend that the efficiencies the Defendants seek to obtain from transfer are illusory, because the action either will not be able to be coordinated with the other actions pending against Valeant, or the state law claims will need to be re-filed in state court. Judge Cote holds that SLUSA does not preclude the transfer of the action to the District of New Jersey. Even if the state law claims will almost certainly be dismissed after the case is coordinated with the other New Jersey actions under SLUSA, at the time of commencement of the lawsuit, there would have been subject matter jurisdiction over all of the claims in the District of New Jersey if the lawsuit had originally been filed there. A transfer is therefore permitted by Section 1404. In addition, the Defendants have carried their burden to demonstrate, by clear and convincing evidence, that transfer is warranted. The District of New Jersey has invested years of work in related litigation. The suite of actions is based on the same facts and involve similar claims. The case will be easier to manage if it is part of the coordinated group of cases, rather than proceeding alone in this court. Most of the other factors appear neutral or weakly in favor of transfer. Nonetheless, the presence of the 27 other actions in New Jersey and the efforts that Judge Shipp has devoted to them are compelling reasons to transfer the case. Judge Cote granted the Defendants' motion to transfer. The Clerk of Court will transfer the action to the U.S. District Court for the District of New Jersey. A full-text copy of the Court's April 24, 2018 Opinion and Order is available at https://is.gd/2zgIhM from Leagle.com. HOUND PARTNERS OFFSHORE FUND, LP, HOUND PARTNERS CONCENTRATED MASTER, LP & HOUND PARTNERS LONG MASTER, LP, Plaintiffs, represented by ERIC TODD KANEFSKY, CALCAGNI & KANEFSKY LLP, MARTIN BENJAMIN GANDELMAN, CALCAGNI & KANEFSKY LLP & SAMUEL S. CORNISH, Calcagni & Kanefsky LLP. HOWARD B. SCHILLER, Defendant, pro se. DEBORAH JORN, Defendant, represented by CARA JOY DAVID -- cara.david@srz.com -- SCHULTE ROTH & ZABEL. Tanya Carro, Defendant, represented by WILLIAM J. SCHWARTZ -- wschwartz@cooley.com -- OFFICE OF CORPORATE COUNSEL FOR THE CITY OF NEWARK LAW DEPARTMENT. Ronald H Farmer, Defendant, represented by PAUL C. CURNIN -- pcurnin@stblaw.com -- SIMPSON THACHER & BARTLETT, LLP. BARCLAYS CAPITAL INC., Defendant, represented by RICHARD A. ROSEN -- rrosen@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON. VEREIT: Settles Vanguard Suit, Shareholder Class-Action Pending --------------------------------------------------------------- Ian Wenik, writing for Citywire, reports that Vanguard has settled a 'multi-billion dollar' lawsuit with Vereit, the scandal-hit real estate investment trust (Reit) founded by Nicholas Schorsch. Vereit, which was formerly known as American Realty Capital Properties (ARCP), is to pay Vanguard $90 million in a move that will bring an end to a long-running legal battle between the two firms. The case dates back to October 2015, when Vanguard sued Vereit, Schorsch and other company officials in an Arizona federal court, claiming that it, along with other investors, had lost billions of dollars due to an accounting scandal at the Reit, court documents show. Through a number of its funds, Vanguard owned a combined 13% stake in Schorsch's company. The lawsuit was filed after Schorsch stepped down from his chairman role at ARCP in December 2014 and the company disclosed a $23 million accounting misstatement, having misrepresented its "adjusted funds from operations" (AFFO) in its financial statements and restated seven quarters of financial results. The scandal caused the company's stock to slide more than 36%. "The company's stock price plummeted by over 36% in response to the company's disclosure of the fraud and attempted cover-up, causing plaintiffs and other investors to lose billions of dollars," Vanguard said in its complaint. In its lawsuit, Vanguard also claimed Schorsch and ARCP used the misrepresented AFFO figures to justify an aggressive series of acquisitions, which grew the Reit from $132 million in assets in 2011 to $21.3 billion in 2014. "The true primary purpose in Schorsch's buying spree, however, was to rob from shareholders and to give to himself and his friends," Vanguard said in its 2015 complaint. The claim also alleged Schorsch siphoned out 'hundreds of millions of dollars' from ARCP. A Vanguard spokeswoman declined to comment on the settlement. As part of the $90 million settlement, Vereit, Schorsch and the other company officials have been released from the lawsuit, without admitting liability or wrongdoing. Double trouble It is not the end of their legal battles, however, with a shareholder class-action lawsuit against Vereit and Schorsch, led by TIAA-CREF, potentially going to trial next year. Vereit, which rebranded in July 2015 and now controls $14.5 billion, issued a statement in which it said that it had settled with Vanguard in an effort to mitigate legal risk. "In light of the fact that the Vanguard lawsuit was proceeding in a different federal district court than the other related cases pending against Veriet, Vereit believes that if the Vanguard lawsuit continued, it could find itself facing successive trials on similar factual and legal issues that could have subjected Vereit to increased legal risk," the company said in the statement. "Based on these factors and others, we believe that the settlement with Vanguard is in Vereit's best interest." The ARCP accounting scandal also sparked a series of lawsuits against the firm and resulted in ARCP's CFO, Brian Block, receiving a lifetime ban from serving as a director and officer from the Securities and Exchange Commission. The scandal also precipitated the downfall of Schorsch's wider business empire. He was forced to resign as the chairman of brokerage house RCS Capital, which he had taken public in 2013. RCS Capital had purchased Cetera Financial Group for $1.15 billion in cash in early 2014 as part of its own expansionary push before filing a pre-arranged chapter 11 bankruptcy petition in January 2016. The firm emerged from chapter 11 in May 2016 with Cetera as its only operating entity. In October of 2017, RCS Capital's bankruptcy estate paid shareholders, led by the Oklahoma Police Pension Fund and Retirement System and the local government of Providence, RI, $31 million to settle a class-action lawsuit alleging securities fraud. [GN] VITALE'S ITALIAN: Fails to Pay Proper Wages, "Torres" Suit Says --------------------------------------------------------------- EMILIO TORRES, individually and on behalf of all others similarly situated, Plaintiff v. VITALE'S ITALIAN RESTAURANT, INC. d/b/a VITALE'S GRAND RAPIDS; SALVATORE VITALE; BELINDA PIERCE, Defendants, Case No. 1:18-cv-00547 (W.D. Mich., May 15, 2018) is an action against the Defendants for failure to pay overtime compensation under the Fair Labor Standards Act. Mr. Torres was employed by the Defendants as a restaurant worker from March 2017 to May 7, 2018. Vitale's Italian Restaurant, Inc. is a Michigan corporation with principal place of business in Grand Rapids, Michigan. [BN] The Plaintiff is represented by: Robert Anthony Alvarez, Esq. Agustin Henriquez, Esq. AVANTI LAW GROUP, PLLC 600 28th St. SW Wyoming, MI 49509 Tel: (616) 257-6807 E-mail: ralvarez@avantilaw.com VOCATIONAL GUIDANCE: Underpays Clerical Employee, Buddie Claims --------------------------------------------------------------- ELIZABETH BUDDIE, individually and on behalf of all others similarly situated, Plaintiff v. VOCATIONAL GUIDANCE SERVICES; and THE PNC FINANCIAL SERVICES GROUP, INC., Defendants, Case No. 1:18-cv-01199 (N.D. Ohio, May 24, 2018) seeks to recover unpaid minimum wages from the Defendants pursuant to the Fair Labor Standards Act. Ms. Buddie was employed by the Defendants as a clerical employee. Vocational Guidance Services is a non-profit corporation incorporated in the State of Ohio with its principal place of business located at Cleveland, OH. [BN] The Plaintiff is represented by: Trent R. Taylor, Esq. Robert E. DeRose, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 East Broad Street, 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: ttaylor@barkanmeizlish.com bderose@barkanmeizlish.com - and - Emily White, Esq. DANNLAW P.O. Box 6031040 Cleveland, OH 44103 Telephone: (216) 373-0539 Facsimile: (216) 373-0536 E-mail: notices@dannlaw.com WALGREENS BOOTS: Dismissal of Tax Collection Suit Reversed ---------------------------------------------------------- The Appellate Court of Illinois, First District, First Division, reversed the judgment of the Circuit Court granting Defendant's Motion to Dismiss the case captioned DESTIN McINTOSH, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. WALGREENS BOOTS ALLIANCE, INC., Defendant-Appellee, No. 1-17-0362 (Ill. App.). Plaintiff Destin McIntosh filed a putative class-action complaint seeking damages from defendant Walgreens Boots Alliance, Inc., for allegedly imposing and collecting the Chicago Bottled Water Tax on retail sales of beverages that were exempt from the tax. The Defendant filed a motion to dismiss the plaintiff's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)), arguing that the plaintiff's claim was barred by the voluntary payment doctrine. The circuit court granted the defendant's motion and dismissed the plaintiff's complaint with prejudice for the reasons stated in open court based on Lusinski v. Dominick's Finer Foods, Inc., 136 Ill.App.3d 640 [(1985). The Plaintiff raises two related arguments on appeal. First, he argues that the voluntary payment doctrine per se does not apply to claims under the Consumer Fraud Act. He contends that the Consumer Fraud Act codified public policy and that the voluntary payment doctrine does not apply to causes of action based on statutorily codified public policy. He relies primarily on our decision in Nava v. Sears, Roebuck & Co., 2013 IL App (1st) 122063, in support of his argument. Second, he argues that even if the voluntary payment doctrine does apply to Consumer Fraud Act claims, his Consumer Fraud Act claim satisfies the doctrine's fraud exception. He contends that the circuit court's reliance on Lusinski was misplaced because that case did not involve any allegation of fraud. The Consumer Fraud Act is a regulatory and remedial statute intended to protect consumers, borrowers and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices. To state a claim under the Consumer Fraud Act, a plaintiff must allege (1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; and (3) the occurrence of the deception during a course of conduct involving trade or commerce. The Plaintiff contends that his Consumer Fraud Act claim alleges a deceptive practice or otherwise satisfies the fraud exception to the voluntary payment doctrine. He asserts that, that the defendant knew it was not supposed to charge or collect the bottled water tax on the plaintiff's purchases, yet the defendant deceptively represented that it could, and then in fact collected the monies from the plaintiff. The Defendant responds that the plaintiff's complaint failed to allege sufficient facts to satisfy the fraud exception to the voluntary payment doctrine and failed to state a claim under the Consumer Fraud Act because he failed to allege sufficient facts to show that the defendant intended to induce the plaintiff's reliance on any misrepresentation. In his reply brief, the plaintiff argues that the defendant forfeited any argument regarding the sufficiency of his complaint by failing to raise that argument in the circuit court. The Plaintiff's forfeiture argument, however, is misplaced, the Court says. An appellee may raise any argument in support of the circuit court's judgment, even if the argument was not raised in the circuit court, as long as the argument has a sufficient factual basis in the record. Therefore, the Court will evaluate the plaintiff's complaint to determine whether it contains sufficient factual allegations to state a deceptive act or fraud claim under the Consumer Fraud Act. The Court find that the plaintiff's complaint sufficiently alleges a deceptive act and stated a claim under the Consumer Fraud Act and, therefore, the voluntary payment doctrine does not bar the plaintiff's claim. The Consumer Fraud Act prohibits "the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any such material fact in the conduct of trade or commerce." The Court held that, if, as the plaintiff alleges, the defendant charged a tax neither it nor the plaintiff was bound to pay, it can be found to have engaged in a deceptive act for the purposes of the Consumer Fraud Act. Furthermore, the Court held that the defendant's intent that the plaintiff rely on a deceptive act might be established by the fact that the customer's payment of the tax was a natural and predictable consequence of the defendant asking the plaintiff to do so. Here, the plaintiff alleged that the defendant represented to customers that the bottled beverages they purchased were subject to the bottled water tax, when the purchased products were in fact exempt from the tax, and represented to customers that the purchase price of the beverages included the required tax. The Plaintiff further alleged that defendant intended that its customers rely on its representation that the products were subject to the tax when the customers were in fact buying tax- exempt products. Taking those allegations as true, the defendant could be found to have engaged in a deceptive act, which precludes the application of the voluntary payment doctrine as a defense. The Court finds that the plaintiff has sufficiently alleged a Consumer Fraud Act claim in the nature of fraud and, therefore, the voluntary payment doctrine does not bar his claim. The Court therefore reverses the circuit court's order dismissing the plaintiff's complaint and remands for further proceedings. A full-text copy of the Ill. App.'s April 23, 2018 Opinion is available at https://tinyurl.com/y7c2lyyn from Leagle.com. WALGREENS PHARMACY: Rodarte Sues over Wrongful Termination ---------------------------------------------------------- Alice Rodarte, individually and on behalf of all others similarly situated, Plaintiff v. Walgreens Pharmacy Services Midwest, LLC; Cathleen Hanni; Hector Alanzo; and Does 1 through 50, Defendants, Case No. BC 707054 (Cal. Super., May 18, 2018) alleges that the Defendants wrongfully terminated the Plaintiff due to his medical conditions in violation of the California Fair Employment and Housing Act. According to the complaint, the Plaintiff was employed by the Defendants in March 2004 as Service Clerk/Cashier at the Defendants' store in Torrance, California. In October 2007, the Plaintiff had a gallbladder surgery and was on a three-week leave due to complications in her surgery. In November 2015, Plaintiff during the course of her employment was required to pull and lift heavy firewood, and severely injured her back. The Defendants did not send the Plaintiff for proper medical treatment. In April 2016, the Plaintiff was ill and experienced stomach pain where she went to the Emergency Room at Kaiser Hospital. The Plaintiff was diagnosed with three intestinal blockages. She underwent surgery, and was in the hospital for 8 days. On June 16, 2016, the Plaintiff was diagnosed with gout. She was on medical leave from August 23 to 25, 2016. The Plaintiff then returned back to work and face adverse employment events which materially affect the terms and conditions of her employment. In December 2016, when the Plaintiff entered the Defendants' office, she was stopped and asked to come to the office. The Defendants then terminated her without any warning or notice. Walgreen Pharmacy Services Midwest, LLC operates as a subsidiary of Walgreens Boots Alliance, Inc. [BN] The Plaintiff is represented by: Twila S. White, Esq. LAW OFFICE OF TWILA S. WHITE 6033 West Century Boulevard Los Angeles, CA 90045 Telephone: (213)381-8749 Facsimile: (213) 381-8799 WATERBURY, CT: Class Action Over Dog Euthanization Plan Denied -------------------------------------------------------------- Rich Scinto, writing for Patch, reports that a Waterbury pitbull that has been locked up in the pound for four years and is due to be euthanized after an incident has drawn widespread attention. Rose got free from her owner in April 2014 and bit two people as they tried to catch her, according to Fox 61. A federal lawsuit was filed earlier this year, but a judge refused to give it class action status. The city requested that it be allowed to move forward with euthanization plans. A rescue shelter has offered to take Rose. [GN] WE CARE SENIOR: Doesn't Pay OT to Caregivers, "Gentry" Suit Says ---------------------------------------------------------------- Kristy Gentry, individually and on behalf of all others similarly situated, Plaintiff v. We Care Senior Home Care of Georgia, Inc., and Wilfred Anthony, Defendants, Case No. 1:18-cv-02132-CAP (N.D. Ga., May 14, 2018) is an action against the Defendants to recover unpaid overtime compensation, liquidated damages, reasonable expenses of litigation, and attorneys' fees. Ms. Gentry was employed by the Defendants as a caregiver from August 2016 to October 2017. We Care Senior Home Care of Georgia, Inc. is a domestic corporation, doing business in Georgia. [BN] The Plaintiff is represented by: Larry A. Pankey, Esq. Erin J. Krinsky, Esq. PANKEY & HORLOCK, LLC 1441 Dunwoody Village Parkway, Suite 200 Atlanta, GA 30338-4122 Telephone: (770) 670-6250 Facsimile: (770) 670-6249 E-mail: LPankey@PankeyHorlock.com EKrinsky@PankeyHorlock.com WINDOWS USA LLC: Underpays Retail Service Managers, Suit Says ------------------------------------------------------------- JOSH EVANS, individually and on behalf of all others similarly situated, Plaintiff v. WINDOWS USA, LLC, Defendant, Case No. 6:18-cv-6051 (W.D. Ark., May 25, 2018) brought an action against the Defendant for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties, reasonable attorney's fees and costs, as a result of the Defendant's failure to pay the Plaintiff overtime compensation for hours worked in excess of 40 hours per week. Mr. Evans was employed by the Defendant as a retail service manager. Windows USA, LLC is a corporation organized under the laws of the State of Arkansas. The Company is engaged in the business of selling and marketing windows designed for customer residences throughout the U.S. [BN] The Plaintiff is represented by: Christopher Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: chris@sandfordlawfirm.com josh@sandfordlawfirm.com WPP: Pomerantz Law Firm Mulls Securities Class Action ----------------------------------------------------- Alex Ralph, writing for The Sunday Times, reports that an American law firm is investigating claims on behalf of WPP investors in the wake of the resignation of Sir Martin Sorrell for alleged "personal misconduct". Pomerantz has said that its investigation is into "whether WPP and certain of its officers and/or directors have engaged in securities fraud or other unlawful business practices". The potential class action comes after Pomerantz led a successful case against Petrobas, the Brazilian oil company, which became mired in a corruption scandal in 2014. A $3 billion settlement with American investors was reached in January. Pomerantz could not be reached for comment on June 11, but in a circular it has urged investors to contact the firm. [GN] * Class Action Industry in Australia Faces Backlash Over Fees ------------------------------------------------------------- Litigation Finance Journal reports that the class action industry is booming in Australia, thanks in no small part to litigation funding partnerships. Australia prohibits attorneys from working on contingency; a situation that works out nicely for funders who are needed to bankroll claims. But the rapid growth of the industry has led to a backlash against the (in some cases) hefty percentage of fees collected by funders, leading some to suggest that Australia follow the United States' model and allow class action law firms to work on a contingency basis. [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 * * *