/raid1/www/Hosts/bankrupt/CAR_Public/180716.mbx
C L A S S A C T I O N R E P O R T E R
Monday, July 16, 2018, Vol. 20, No. 141
Headlines
ADAMS AUTO: Loses Bid to Dismiss "Layden" TCPA Suit
AIR METHODS: Cowen Appeals D. Colorado Ruling to Tenth Circuit
AIR METHODS: Tenth Circuit Appeal Filed in "Scarlett" Class Suit
ALLIANCE HOLDINGS: Chesemore Wins $223,263 Judgment vs. Fenkell
AMPLEMEDICAL: Camp Drug Store Sues Over Illegally-faxed Ads
ANDA INC: MSPA Opioid Drug Row Transferred to N.D. Ohio
ARGYCE LLC: Court Partly Grants Summary Judgment Bid in "Schmidt"
ASSURANT INC: Jorge Files Suit Over Blind-Inaccessible Web site
ATKINS NUTRITIONALS: Court Narrows Claims in "Fernandez"
AUTOCOM NISSAN: "Sonnier" Suit Asserts FCRA Breach
BAYER HEALTHCARE: Court Won't Dismiss Coppertone 30 Suit
BP WEST COAST: "Bartlett" Sues Over Gas Price Manipulation
BRASSERIE CENTRAL: "Sosa" Seeks to Recover Minimum and OT Wages
CBOE EXCHANGE: FTC Capital Suit Moved From S.D.N.Y. to N.D. Ill.
CENTURY FEDERAL: Sends Defective Notices to Consumers, Says Suit
CHICAGO BRIDGE: Kinra Appeals Ruling in "Giantonio" ERISA Suit
CINTAS SERVICES: Joint Discovery Letter in "Williams" Terminated
COMFORT COVER: "Ayers" Suit Seeks Damages under FLSA
COMPLEX OMV: "Fernandes" Action to Claim Unpaid Overtime
CUSHMAN & WAKEFIELD: "Valdivieso" $390K Deal Has Prelim Approval
CUYAHOGA COUNTY, OH: Ct. Won't Certify "Smith" Inmates Class
CUYAHOGA COUNTY, OH: "Smith" Inmates Class Cert. Bid Denied
DAVITA HEALTHCARE: Accused by "Wilson" FLSA Suit of Not Paying OT
DAVITA HEALTHCARE: Fails to Pay Overtime Wages, "Sullivan" Claims
DAVITA HEALTHCARE: Sued by Weatherby of Not Paying OT Under FLSA
DIRECTIONAL PROJECT: "Bratcher" Suit Alleges FLSA Violations
DL PROSPECT: Trinidad-Mendoza Sues Over Denied OT Wages
DOMINOS PIZZA: "Simeon" Suit Remains in NY District Court
DOVEX FRUIT: Workers Win Favorable Ruling in Piece-Rate Suit
DYANSYS INC: Fromer Chiropractic Sues Over Unsolicited Faxed Ads
ELITE LAWNS: "Acevedo" Suit Seeks to Recover Unpaid Overtime
EMERGENT BIOSOLUTIONS: Appeals Ruling in "Sponn" Suit to 4th Cir.
ENERGY FIRST: "Garcia" Labor Suit to Recover Unpaid Overtime
ERIE INDEMNITY: 3rd Cir. Affirms Insurance Exch. Suit Dismissal
FACEBOOK INC: Sternemann Hits Illegal Collection of Personal Data
FCA US: Court Grants Summary Judgment in "Victorino"
FLEX LTD: Kipling Sues Over Share Price Drop
FORT WAYNE, IN: Homeless Individuals Unable to Satisfy Numerosity
FRANKLIN COLLECTION: Court Dismisses "Brunett" FDCPA Suit
FUJITSU TECHNOLOGY: $14MM "Johnson" Settlement Has Final Approval
FULTON STREET: Court Dismisses Suit Over Contaminated Beer
GACO WESTERN: Court Denies Request to Continue CMC in "Feamster"
GEORGIA: Ga. App. Partly Affirms Dismissal of "McConnell" Suit
GOOD SHEPHERD: Tex. App. Partly Affirms Dismissal of "Growden"
GREEN MOUNTAIN: "Cloer" Suit Alleges FLSA Violation
HANDY & HARMAN: Stockholder Suit Dismissed Against R. Frankfurt
HARBOUR CAPITAL: Class Certification in TCPA Suit Denied
HITRONS SOLUTIONS: "Schwartz" Disputes Food Bag Biodegradability
INFINITY PROPERTY: "Rosenblatt" Seeks to Halt Kemper Merger
INSURANCE ADVOCATES: "Basile" Suit Alleges TCPA Violation
JEFFERSON COUNTY, NY: Court Denies Bid to Dismiss "Nourse" Suit
JOHNSON & JOHNSON: Can't Compel Arbitration in "Noye" FCRA Suit
KAMCOR INC: Ct. Denies Conditional Class Cert in "Ortiz-Patino"
KIMBERLY-CLARK CORP: 9th Cir. Reversed "Davidson" Dismissal
KINGS HARBOR: Pre-Class Cert Discovery Needed in "Gibbs"
LEGACY RESERVES: Settles Class Action Lawsuits with Unitholders
LIFE LINE: Left Out Bonus in "Scaggs" Overtime Computation Claim
LUNA ENTERPRISE: "Bazan" Suit Alleges FLSA Violation
LYFT INC: Sept. 20 Fairness Hearing on "Zamora" Settlement
MACY'S INC: Rostami Seeks to Stop Fraudulent Billing Practices
MARKETSOURCE INC: "Nguyen" Stayed Pending "Morris" Ruling
MAZZONE MANAGEMENT: Court Denies Bid to Seal in "Olvera" Suit
MCMC LLC: "Mauthe" Sues Over Illegally-faxed Ads
MDL 2437: Manufacturers Can't Compel Production of Injury Docs
MDL 2818: Court Sets Protocol for Common Benefit Work & Expenses
MEDICREDIT INC: Seeks 5th Cir. Review of Ruling in "Flecha" Suit
MERCEDES BENZ: Court Requires Supplemental Info for Settlement
MIDLAND CREDIT: "Bianc" Suit Alleges FDCPA Violation
MOHAWK INC: 6th Cir. Affirms Dismissal of Health One TCPA Suit
MONTEREY FINANCIAL: Court Allows Filing of FAC in "Brinkley"
MYEXPERIAN INC: Response & Exhibits to "Vinsant" Cert. Bid Struck
NATIONSTAR MORTGAGE: "Franchi" Seeks to Halt Sale to WMIH Corp.
NEW STAR COFFEE: Oropeza Seeks to Recover Minimum and OT Wages
NORTON HEALTHCARE: Court Vacates Summary Judgment in ERISA Suit
PERFECT DEED: "Antonaccio" Suit Seeks to Recover Unpaid Overtime
PFIZER INC: Lipitor Suit Remanded to State Court
PHILLIPS 66: Court Grants Bid to Dismiss "Schweitzer" ERISA Suit
POLLO OPERATIONS: "Preman" Deal Prelim OK Bid Partly Granted
POPSUGAR INC: "Batra" Suit Alleges Copyright Act Violation
PREMIER FINANCIAL: Chen Files Suit Over Pyramid Scheme
QUALITY CARE: Faces "Sanderson" Suit Over Merger With Welltower
QWEST CORP: Court OKs $275K Settlement in "Thompson" FLSA Suit
REAL DETAIL: Thomas Sues to Recover Minimum Wage for Detailers
RED EYE: Can't Compel Arbitration of "Davis" Suit
ROBERT BOSCH: Car Owners Asks Ct. to Compel Subpoena Compliance
ROBERTS AND CO: "Simental" Action Seeks Unpaid Overtime
RP FIELD SERVICES: Misclassified Employees, Denied OT, Says Suit
SAFEMARK SYSTEMS: 11th Circuit Appeal Filed in Gorss Motels Suit
SENTINEL OFFENDER: Court Certifies Non-Felon Probationers Class
SIMM ASSOCIATES: "Johnson" Disputes Vague Collection Letter
SOUTH BAY: Barahona Files Suit Over Deceptive Flyers
SPOTIFY USA: Dearing Appeals Orders in "Ferrick" Suit to 2nd Cir.
SPRINT NEXTEL: "Sibley" Deal Prelim. OK Bid Sustained in Part
STELLA ORTON: Must Respond to Pre-Cert Discovery Requests
SUTTER HOME: Cal. App. Affirms Dismissal of "Charles" Suit
TD AMERITRADE: 8th Cir. Affirms SLUSA Preclusion in "Zola"
TOUCHTUNES MUSIC: Cline Appeals Order and Judgment to 2nd Circuit
TOWN SPORTS: Ryder Sues Over Illegal SMS Ad Blasts
TRANS UNION: "Lenzy" Action Disputes Credit Report
TRAVELERS HOME: Stechert Appeals E.D. Pa. Decision to 3rd Circuit
UBER TECHNOLOGIES: Court Dismisses "Antman" Data Breach Suit
UNDER ARMOUR: Conditional Certification of "Brianas" Class Denied
US BANK: "Duncan" Suit Remains in Maryland District Court
VIRGINIA BEACH: Court Conditionally Certifies "Andreana" Class
WAFFLE HOUSE: "Burrell" Suit Alleges FLSA Violation
WELLS FARGO: 11th Cir. Vacates Arbitration Denial in "Gutierrez"
WELLS FARGO: Bid to Strike Parts of "Perez" Suit Partly Granted
WENDY'S: Bid to Apply Ohio Law in First Choice Suit Partly OK'd
WILLIAMS CO: 10th Cir. Affirms Dismissal of Securities Suit
WW GRAINGER: "Benedict" Suit Alleges FLSA Violation
*********
ADAMS AUTO: Loses Bid to Dismiss "Layden" TCPA Suit
---------------------------------------------------
Judge Ortrie D. Smith of the U.S. District Court for the Western
District of Missouri, Western Division, denied the Defendant's
motion to dismiss the case, JONATHON LAYDEN, individually and
o/b/o all others similarly situated, Plaintiff, v. ADAMS AUTO
CORP., Defendant, Case No. 18-00065-CV-W-ODS (W.D. Mo.).
The Plaintiff, individually and on behalf of others similarly
situated, alleges that the Defendant violated the Telephone
Consumer Protection Act ("TCPA") directly or through a third
party telemarketer by sending unsolicited text messages to him
and the putative class members. He maintains that the Defendant
or its agent used an automatic telephone dialing system ("ATDS")
to send these text messages. He contends he did not provide
express consent for Defendant to use an ATDS to send said text
messages, or for the Defendant to send advertising or
telemarketing text messages to his cellular phone.
The Defendant moves to dismiss the Plaintiff's Complaint for
failure to state a claim, arguing (1) the text messages are
neither advertisements nor telemarketing, and (2) the Plaintiff
consented to receipt of the text messages.
Judge Smith finds that the Defendant does not address any other
purpose(s) for or motivations behind the messages, additional
message content once the recipient clicked on the link contained
in the message, and the Defendant's likely intention to offer
goods or services in the future to the Plaintiff. When
considering (1) the Complaint, from which the Court must accept
the allegations as true and view in the light most favorable to
the Plaintiff, (2) the parties' submissions, and (3) the
applicable law, the Judge finds the Plaintiff plausibly states a
claim upon which relief can be granted under the TCPA.
And based upon the face of the Complaint, which is the only
source this Court is permitted to review on this issue, the Judge
finds that the Plaintiff has plausibly stated a claim under the
TCPA. The Defendant argues the Plaintiff fails to state a TCPA
claim because he consented to receiving text messages from the
Defendant when he knowingly released his cellular phone number to
it when it serviced the Plaintiff's vehicle. The Plaintiff
alleges he provided his cell number so that Adams Toyota could
call him regarding the estimated expenses, the nature of the
repairs needed, and the status of the repairs. But the Plaintiff
also alleges he did not provide express consent for the Defendant
to send advertising or telemarketing text messages to his
cellular phone.
For these reasons, Judge Smith denied the Defendant's motion to
dismiss.
A full-text copy of the Court's May 11, 2018 Order and Opinion is
available at https://is.gd/wbzEli from Leagle.com.
Jonathon Layden, individually and on behalf of all others
similarly situated, Plaintiff, represented by Aristotle N.
Rodopoulos -- ari@woodlaw.com -- Wood Law Firm LLC & William
Charles Kenney, Bill Kenney Law Firm, LLC.
Adams Auto Corp., Defendant, represented by Anahit Tagvoryan --
atagvoryan@blankrome.com -- Blank Rome LLP, pro hac vice,
Harrison M. Brown -- hbrown@blankrome.com -- Blank Rome LLP, pro
hac vice, Jeffrey N. Rosenthal -- rosenthal-j@blankrome.com --
Blank Rome LLP, pro hac vice, Christopher M. Napolitano --
cnapolitano@enszjester.com -- Ensz & Jester, PC & Wesley J.
Carrillo -- wcarrillo@enszjester.com -- Ensz & Jester, PC.
AIR METHODS: Cowen Appeals D. Colorado Ruling to Tenth Circuit
--------------------------------------------------------------
Plaintiffs Randal Cowen, Griff Hughes, Lana Hughes, Keith
Kranhold and Yolanda O'Neale filed an appeal from a court ruling
in their lawsuit entitled Cowen, et al. v. Air Methods
Corporation, et al., Case No. 1:16-CV-02723-RBJ, in the U.S.
District Court for the District of Colorado - Denver.
The nature of suit is stated as other contract actions.
The appellate case is captioned as Cowen, et al. v. Air Methods
Corporation, et al., Case No. 18-1249, in the United States Court
of Appeals for the Tenth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Docketing statement, transcript order form and notice of
appearance were due June 29, 2018, for Randal Cowen,
Griff Hughes, Lana Hughes, Keith Kranhold, Yolanda O'Neale;
and
-- Notice of appearance were due June 29, 2018, for Air
Methods Corporation and Rocky Mountain Holdings, LLC.[BN]
Plaintiffs-Appellants RANDAL COWEN, KEITH KRANHOLD, Executor of
the Estate of Kenneth Kranhold, GRIFF HUGHES, LANA HUGHES and
YOLANDA O'NEALE, on behalf of themselves and all others similarly
situated, are represented by:
Richard J. Burke, Esq.
QUANTUM LEGAL LLC
1010 Market Street, Suite 1310
St. Louis, MO 63101-2033
Telephone: (314) 880-7000
E-mail: richard@Qulegal.com
- and -
Zachary A. Jacobs, Esq.
Jamie E. Weiss, Esq.
QUANTUM LEGAL, LLC
513 Central Avenue, Suite 300
Highland Park, IL 60035
Telephone: (312) 220-0000
E-mail: zachary@Qulegal.com
Jamie@Qulegal.com
Defendants-Appellees AIR METHODS CORPORATION and ROCKY MOUNTAIN
HOLDINGS LLC are represented by:
David Alan King, Esq.
BASS, BERRY & SIMS PLC
2700 First American Center
Nashville, TN 37238-0000
Telephone: (615) 742-6200
E-mail: dking@bassberry.com
- and -
Michael Lawrence O'Donnell, Esq.
Trenton Don Tanner, Esq.
Theresa R. Wardon, Esq.
WHEELER TRIGG O'DONNELL
370 Seventeenth Street, Suite 4500
Denver, CO 80202
Telephone: (303) 244-1800
E-mail: odonnell@wtotrial.com
tanner@wtotrial.com
wardon@wtotrial.com
AIR METHODS: Tenth Circuit Appeal Filed in "Scarlett" Class Suit
----------------------------------------------------------------
Plaintiff Jeremy Lee Scarlett filed an appeal from a court ruling
in the lawsuit titled Scarlett v. Air Methods Corporation, et
al., Case No. 1:16-CV-02723-RBJ, in the U.S. District Court for
the District of Colorado - Denver.
The nature of suit is stated as other contract actions.
The appellate case is captioned as Scarlett v. Air Methods
Corporation, et al., Case No. 18-1247, in the United States Court
of Appeals for the Tenth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Docketing statement and transcript order form is due on
June 29, 2018, for Jeremy Lee Scarlett; and
-- Notice of appearance is due on June 29, 2018, for Air
Methods Corporation, Rocky Mountain Holdings LLC and Jeremy
Lee Scarlett.[BN]
Plaintiff-Appellant JEREMY LEE SCARLETT, on behalf of himself and
all others similarly situated, is represented by:
Troy M. Frederick, Esq.
MARCUS & MACK
57 South 6th Street
Indiana, PA 15701
Telephone: (724) 349-5602
E-mail: TFrederick@marcusandmack.com
- and -
Noble McIntyre, Esq.
MCINTYRE LAW
8601 South Western Avenue
Oklahoma City, OK 73139
Telephone: (405) 917-5250
E-mail: Noble@McIntyreLaw.com
- and -
Thomas Melvin Rogers, III, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
1200 17th Street, Suite 3000
Denver, CO 80202
Telephone: (303) 623-9000
E-mail: trogers@lrrc.com
- and -
Jonathan Shub, Esq.
KOHN SWIFT & GRAF, P.C.
One South Broad Street, #2100
Philadelphia, PA 19107
Telephone: (215) 238-1700
E-mail: jshub@kohnswift.com
- and -
Stephen D. Wadsworth, Esq.
CAMPBELL GUIN, LLC
505 20th Street North, Suite 1600
Birmingham, AL 35203
Telephone: (205) 224-0750
E-mail: stephen.wadsworth@campbellguin.com
- and -
Edward Leslie White, Esq.
EDWARD L. WHITE, P.C.
829 East 33rd Street
Edmond, OK 73013
Telephone: (405) 810-8188
- and -
Samuel Alex Yaffe, Esq.
FOSHEE & YAFFE LAW FIRM
12231 South May Avenue
P.O. Box 890420
Oklahoma City, OK 73189-0000
Telephone: (405) 632-6668
E-mail: ayaffe@fosheeyaffe.com
Defendants-Appellees AIR METHODS CORPORATION and ROCKY MOUNTAIN
HOLDINGS LLC are represented by:
David Alan King, Esq.
BASS, BERRY & SIMS PLC
2700 First American Center
Nashville, TN 37238-0000
Telephone: (615) 742-6200
E-mail: dking@bassberry.com
- and -
Michael Lawrence O'Donnell, Esq.
Trenton Don Tanner, Esq.
Theresa R. Wardon, Esq.
WHEELER TRIGG O'DONNELL
370 Seventeenth Street, Suite 4500
Denver, CO 80202
Telephone: (303) 244-1800
E-mail: odonnell@wtotrial.com
tanner@wtotrial.com
wardon@wtotrial.com
ALLIANCE HOLDINGS: Chesemore Wins $223,263 Judgment vs. Fenkell
---------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit entered a
judgment in favor of Plaintiffs Carol Chesemore, et al., in the
amount of $223,263 and against Defendant David B. Fenkell in the
lawsuit titled CHESEMORE v. FENKELL, et al., Case No. 2:18-mc-
00121-UJ, in the U.S. District Court for the Eastern District of
Pennsylvania (Philadelphia).
The appellate case is captioned as CHESEMORE v. FENKELL, et al.,
Case No. 14-03181, in the U.S. Court of Appeals for the Seventh
Circuit.
As previously reported in the Class Action Reporter, Trachte
Building Systems, Inc., a Wisconsin manufacturer, established an
employee stock ownership plan (ESOP) in the mid-1980s when ESOPs
were a popular employee-benefits instrument. In the late 1990s,
David Fenkell and Alliance Holdings, Inc., a company he founded
and controlled, developed a niche specialty in buying and selling
ESOP-owned, closely held companies with limited marketability.
In accordance with this business model, Alliance acquired Trachte
in 2002 for $24 million and folded its ESOP into Alliance's ESOP.
The new Trachte ESOP used the employees' accounts as collateral
to incur debt to purchase Trachte's equity back from Alliance.
Multiple interlocking transactions to that effect closed on the
same day in August 2007. When all was said and done, Trachte and
the new Trachte ESOP had paid $45 million for 100% of Trachte's
stock and incurred $36 million in debt. The purchase price was
inflated and the debt load was unsustainable, the Plaintiffs
allege. By the end of 2008, Trachte's stock was worthless. The
losers in this deal -- the employee participants in the new
Trachte ESOP -- sued Alliance, Fenkell, his handpicked trustees,
and several other entities alleging breach of fiduciary duty in
violation of Employee Retirement Income Security Act.
The Defendants are DAVID B. FENKELL, and ALLIANCE HOLDINGS, INC.,
ET AL.[BN]
Plaintiffs CAROL CHESEMORE, ET AL, ON BEHALF OF THEMSELVES
INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, are
represented by:
Scott M. Lempert, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW
West Tower, Suite 500
Washington, DC 20005
Telephone: (202) 408-4600
E-mail: slempert@cohenmilstein.com
AMPLEMEDICAL: Camp Drug Store Sues Over Illegally-faxed Ads
-----------------------------------------------------------
Camp Drug Store, Inc., an Illinois Corporation, individually and
as the representative of a class of similarly-situated persons,
Plaintiff, v. Anthony Wayne Thompson, Defendant, Case No. 18-cv-
61033, (S.D. Fla., April 9, 2018), seeks statutory and treble
damages, injunctive relief, compensation and attorney fees for
violation of the Telephone Consumer Protection Act.
Thompson operates under the name "AmpleMedical" and the website
"amplemedical.com," marketing medical products and services,
including insulin and diabetic test strips and meters. Defendant
sent advertisements by facsimile to Camp Drug Store using the
services of a fax broadcaster, WestFax, Inc. [BN]
Plaintiffs are represented by:
Phillip A. Bock, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. La Salle St., Ste. 1000
Chicago, IL 60602
Tel: (312) 658-5500
Fax: (312) 658-5555
Email: phil@classlawyers.com
ANDA INC: MSPA Opioid Drug Row Transferred to N.D. Ohio
-------------------------------------------------------
The case captioned MSPA Claims 1, LLC, a Florida Limited
Liability Company, MAO-MSO Recovery II, LLC, a Delaware Limited
Liability Company and MSP Recovery Claims, Series LLC, a Delaware
Limited Liability Company, Plaintiffs, v. Anda, Inc., A Florida
Profit Corporation, Teva Pharmaceuticals Industries, Ltd., Teva
Pharmaceuticals USA, Inc., Cephalon, Inc., Purdue Pharma, L.P.,
Purdue Pharma, Inc., The Purdue Frederick Company, Inc., Johnson
& Johnson, Janssen Pharmaceuticals, Inc., Ortho-Mcneil-Janssen
Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.,
Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc.,
Noramco, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals
Inc., Qualitest Pharmaceuticals, Inc., Allergan PLC (f/k/a
Actavis PLC), Watson Pharmaceuticals, Inc. (n/k/a Actavis, Inc.),
Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc.
(f/k/a Watson Pharma, Inc.), Mallinckrodt PLC, Mallinckrodt LLC,
McKesson Corporation, Cardinal Health, Inc., Amerisourcebergen
Drug Corporation, Abbott Laboratories, Inc., Russell Portenoy,
Perry Fine, Scott Fishman and Lynn Webster, Defendants,
Defendants, Case No. 18-cv-21391, (S.D. Fla., April 9, 2018), was
transferred to the U.S. District Court for Northern Ohio
(Cleveland) on May 7, 2018, under Case No. 18-op-45526.
Plaintiff alleged harms stemming from abuse of opioid
medications. Defendants are manufacturers, physicians and drug
distributors who sold and prescribed opioid-based drugs to
patients. Plaintiffs are health care entities that provide health
care benefits and additional services to Florida Medicaid
beneficiaries. [BN]
Plaintiffs are represented by:
Frank Carlos Quesada, Esq.
John Hasan Ruiz, Esq.
MSP RECOVERY LAW FIRM
5000 SW 75th Avenue, Suite 400
Miami, FL 33155
Tel: (305) 614-2222
Fax: (866) 582-0907
Email: fquesada@msprecovery.com
jruiz@msprecovery.com
- and -
James L. Ferraro, Esq.
KELLEY & FERRARO
1300 Ernst & Young Bldg.
950 Main Avenue
Cleveland, OH 44113
Tel: (216) 202-3450
Fax: (216) 575-0799
Email: jlf@ferrarolaw.com
- and -
James L. Ferraro, Jr., Esq.
Janpaul Portal, Esq.
FERRARO LAW FIRM
38th Floor, 00 Brickell Avenue
Miami, FL 33131
Tel: (305) 375-0111
Fax: (305) 379-6222
Email: JJR@ferrarolaw.com
jpp@ferrarolaw.com
Teva Pharmaceuticals Industries Ltd. and Teva Pharmaceuticals
USA, Inc. are represented by:
Brian M. Ercole, Esq.
MORGAN, LEWIS & BOCKIUS-MIAMI
5300 Wachovia Financial Center
200 South Biscayne Blvd.
Miami, FL 33131
Tel: (305) 415-3416
Fax: (305) 415-3001
Email: brian.ercole@morganlewis.com
- and -
Matthew Michael Papkin, Esq.
MORGAN LEWIS & BOCKIUS LLP
200 S Biscayne Blvd # 5300
Miami, FL 33131
Tel: (305) 415-3392
Fax: (305) 415-3001
Email: matthew.papkin@morganlewis.com
ARGYCE LLC: Court Partly Grants Summary Judgment Bid in "Schmidt"
-----------------------------------------------------------------
In the case, ALAN SCHMIDT, Plaintiff, v. JOHN A. SKOLAS, et al.,
Defendants, Civil Action No. 12-3265 (E.D. Pa.), Judge Berle M.
Schiller of the U.S. District Court for the Eastern District of
Pennsylvania granted Argyce's motion for summary judgment as to
the Aminosterol Assets and Pexiganan.
Schmidt, a former shareholder of Genaera Corp. and then a
unitholder of the Genaera Liquidating Trust, brought a putative
class action complaint against more than two dozen Defendants
alleging a number of claims related to the dissolution of
Genaera. The case has now been pared down to one Defendant,
Argyce, LLC, the Trustee of Genaera Liquidating Trust, and one
count of breach of fiduciary duty related to the sale of two
pharmaceutical assets and the Trustee's fees.
The action arises from the dissolution and liquidation of
Genaera, a biotechnology company that developed pharmaceutical
drugs. Schmidt's claim of breach of fiduciary duty is premised
on the sale of two classes of pharmaceutical compounds and
administrative fees charged by the Trustee resulting from the
administration of the Trust.
Prior to its dissolution, Genaera developed pharmaceutical drugs
and licensed its intellectual property. Its core assets at the
time of dissolution included: (1) Interlukin 9 ("IL9"), an
antibody program for asthma, (2) several squalamine and other
aminosterol compounds ("Aminosterol Assets"); and (3) Pexiganan,
a topical cream treatment for diabetic foot infections.
On April 18, 2009, Genaera's Board of Directors approved a
dissolution plan, which created a liquidating trust and tasked it
with winding up Genaera's affairs and disposing all of its assets
within three years. In June 2009, Genaera's stockholders
approved the dissolution plan and Genaera transferred all of its
assets and liabilities to the Genaera Liquidating Trust, which
all Genaera shareholders became unitholders in. Argyce became
the Trustee of the Liquidating Trust. Skolas, who years earlier
was Genaera's Chief Financial Officer, Secretary, and General
Counsel, was the President of Argyce. As the Trustee, Argyce
owed a fiduciary duty to the unitholders of the Liquidating
Trust.
The Trust sold the Aminosterol Assets for $200,000, including a
$50,000 down payment. In early January 2010, the buyer disclosed
in its 10-K filing that it had "completed the acquisition" of the
Aminosterol Assets on Aug. 19, 2009. Schmidt alleges that Argyce
breached its fiduciary duty by not publicly requesting bids or
having the Aminosterol Assets appraised, accepting a down payment
only 26 days after the Liquidating Trust was formed, and selling
the Aminosterol Assets for the "unacceptable" price of $200,000.
According to Schmidt, other potential buyers had expressed
interest in the Aminosterol Assets and the Trust could have
received a higher price had it not sold the compounds
prematurely.
Genaera first licensed Pexiganan, a topical anti-infective cream,
to a company called MacroChem in 2007. The final license
agreement provided for a $1 million upfront payment to Genaera,
in addition to a 10% royalty on net sales and additional payments
based on clinical, regulatory, and sales-based milestones. By
late 2008, however, MacroChem "abruptly reversed course" and
drastically cut its development budget for Pexiganan.
After the development of Pexiganan stalled, the Liquidating Trust
terminated the license agreement in November 2009. On Jan. 11,
2010, the Trust announced that it was seeking bids for Pexiganan
and set a one-month bidding period. It ultimately sold Pexiganan
for $272,500 and a reduced royalty to a company started by former
MacroChem executives. Schmidt alleges that Argyce breached its
fiduciary duty by not preparing Pexiganan for sale earlier or
allowing potential buyers to have more time to bid, which he
claims resulted in an unreasonably low sale price.
The Liquidating Trust Agreement provided for the Trustee to be
compensated at $250 per hour, in addition to one to 3% of the
distributions made to unitholders. The Agreement also allowed
the Trustee to be reimbursed for all reasonable expenses.
In March 2011, the Trust published financial statements for the
year 2010, which showed that it had incurred "General and
administrative expenses" of $687,000 while realizing just over $3
million of revenue. Schmidt challenges these fees as excessive.
Schmidt initially filed a complaint on June 8, 2012, and later
filed a First Amended Complaint and Second Amended Complaint. He
alleges that Argyce and its CEO, Skolas, breached their fiduciary
duty to the unitholders of the Liquidating Trust in the sales of
IL9, the Aminosterol Assets, and Pexiganan. He also claims that
Argyce unlawfully enriched itself by billing $687,000 in "General
and Administrative" expenses in 2010.
The Court dismissed the First Amended Complaint in its entirety,
finding that the statute of limitations barred Schmidt's claims
against Argyce. On appeal, the Third Circuit reversed in part,
holding that dismissal on statute of limitations grounds was
premature.
In 2015, the Court dismissed Schmidt's Second Amended Complaint.
After noting that the Trust Agreement limited the Trustee's
liability to gross negligence, the Court found that Schmidt
failed to adequately allege gross negligence. On appeal, the
Third Circuit affirmed the dismissal of the claims related to
IL9, but reinstated the claims related to sale of the Aminosterol
Assets and Pexiganan, noting that a trustee's performance is
subject to enhanced scrutiny and finding that Schmidt's
allegations were plausible. The Court of Appeals also found
Schmidt's claim regarding the fees to be plausible and reinstated
that claim.
Argyce now moves for summary judgment. The sole question before
the Court is whether Schmidt's claims are barred by the statute
of limitations.
The Aminosterol Assets were sold in August 2009, more than two
years before Schmidt filed his complaint on June 8, 2012.
Schmidt, however, argues that his claim is not barred by the
statute of limitations because: (1) he did not know he was
injured when he learned of the sale and (2) the Trust
fraudulently concealed Schmidt's injury.
Judge Schiller finds that the discovery rule cannot toll the
statute of limitations beyond Jan. 11, 2010. Alternatively, he
finds that Schmidt did not exercise reasonable diligence. The
facts formed a warning sign sufficient to trigger Schmidt's duty
to investigate his injury, if he did not have actual knowledge of
his injury and its cause. Having felt betrayed by his fiduciary,
Schmidt should have inquired further into the transaction,
including by exercising his right to inspect the Trust's books
and records. By not taking any steps beyond briefly expressing
his disappointment, Schmidt failed to exercise reasonable
diligence to discovery his injury.
In addition, rather than ever cause him to relax his vigilance,
the Judge finds that Schmidt's interactions with Argyce only made
him more suspicious, until he ultimately concluded that the
unitholders "had been screwed." Therefore, Skolas' comments
regarding the Aminosterol Assets did not cause Schmidt to relax
his vigilance, and the fraudulent concealment doctrine does not
apply.
Argyce argues that, although there is a disagreement over when
Schmidt learned of the Pexiganan sale, his claim is barred by the
statute of limitations because he did not exercise reasonable
diligence. Schmidt disputes that there was any warning sign to
trigger his duty to investigate and reiterates that he did not
discover the "pertinent details" of the sale until after June 8,
2010.
The Judge finds that prior to June 8, 2010, Schmidt: (1) thought
the Trust created an intentionally inadequate bidding process;
(2) believed that the flawed process would result in Pexiganan
being sold for less than it was worth; (3) assumed that Pexiganan
had already been sold and requested that a distribution be made
to unitholders; and (4) stopped contacting Skolas because of what
he perceived as the Trust's deceit and inadequate disclosure of
the Pexiganan transaction. That Schmidt thought that Argyce had
already sold the Aminosterol Assets for a "pittance" and
committed "treachery" by not disclosing that sale earlier further
underscores the salience of the Pexiganan warning signs. Taken
together, these facts amounted to a smoking gun that imposed a
duty to inquire.
In addition, Schmidt never questioned the Pexiganan bidding
process or sought details of the sale to confirm his assumption
that Pexiganan had already been sold. Instead of responding to
the warning signs by further investigating his injury, Schmidt
threw up his hands and ceased communicating with Skolas. In
doing so, the Judge holds Schmidt failed to exercise reasonable
diligence.
Finally, the Judge finds that Argyce has not shown that that the
fees were discoverable or even incurred before June 8, 2010.
Unlike the sales of the Aminosterol Assets and Pexiganan, Schmidt
seemingly had no warning signs of any excessive spending. It may
be that the fees were reasonable and justified under the rates
set by the Trust Agreement. But the claim is not barred by the
statute of limitations.
For the foregoing reasons, Judge Schiller granted the motion as
to the Aminosterol Assets and Pexiganan. Because the Court
bifurcated discovery, he directed the parties to proceed with
discovery on the remaining breach of fiduciary duty claim
regarding the Trustee's fees. An Order consistent with this
Memorandum will be docketed separately.
A full-text copy of the Court's May 9, 2018 Memorandum is
available at https://is.gd/A1B9la from Leagle.com.
ALAN SCHMIDT, Plaintiff, represented by LEE SQUITIERI --
lee@sfclasslaw.com -- SQUITIERI & FEARON LLP & PAUL V. SWEENY --
paul@sfclasslaw.com -- SQUITIERI & FEARON, LLP.
ARGYCE LLC, Defendant, represented by JOSEPH SCOTT MCFARLANE,
DECHERT LLP, KATHERINE UNGER DAVIS, DECHERT LLP, MICHAEL L.
KICHLINE -- michael.kichline@dechert.com -- DECHERT LLP, ROGER
DIXON -- roger.dixon@dechert.com -- DECHERT LLP & SABRINA L.
RELIFORD, DECHERT LLP.
BIOTECHNOLOGY VALUE FUND, L.P., Respondent, pro se.
ASSURANT INC: Jorge Files Suit Over Blind-Inaccessible Web site
---------------------------------------------------------------
Carlos Jorge, on behalf of himself and all others similarly
situated v. Assurant, Inc., Case No. 1:18-cv-05687 (S.D. N.Y.,
June 22, 2018), is brought against the Defendant for violation of
the American with Disabilities Act.
The Plaintiff brings this civil rights action against the
Defendant for its failure to design, construct, maintain, and
operate its website to be fully accessible to and independently
usable by Plaintiff and other blind or visually-impaired people.
The Plaintiff is a resident of New York, New York. The Plaintiff
is a blind, visually-impaired handicapped person and a member of
member of a protected class of individuals under the ADA.
The Defendant operates Assurant physical locations, as well as
the Assurant website, offers it to the public. It offers
features that should allow all consumers to access the facilities
and services that Defendant offers regarding its office and field
locations, says the complaint. The Defendant operates Assurant
offices and employs Assurant field employees across the United
States. At least one of these locations is located in New York,
including its office located at One Chase Manhattan Plaza, New
York, NY 10005. [BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (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
Tel: (212) 228-9795
Fax: (212) 982-6284
E-mail: nyjg@aol.com
danalgottlieb@aol.com
ATKINS NUTRITIONALS: Court Narrows Claims in "Fernandez"
---------------------------------------------------------------
In the case, CHERYL FERNANDEZ, individually and on behalf of all
others similarly situated, Plaintiff, v. ATKINS NUTRITIONALS,
INC., and DOES 1-10, Defendant, Case No. 3:17-cv-01628-GPC-WVG
(S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court
for the Southern District of California granted in part and
denied in part Atkins' motion to dismiss aspects of Fernandez's
First Amended Complaint.
In this putative class action, Fernandez claims that Atkins
misleads purchasers of its snack products by including on its
labels statements about the "net carbs" content of a particular
product.
Dr. Robert Atkins formed Atkins to promote the sale of books and
food items related to the 'Atkins Diet,' a low to no carbohydrate
diet. In a book published in 2002, Dr. Atkins revised this
statement by indicating that certain sugar alcohols such as
maltitol do not affect blood sugar and are acceptable for the
diet. Fernandez suggests that Dr. Atkins altered this conclusion
to accommodate sales of Atkins's growing line of food products
that included sugar alcohols.
On the labels of its snack products, Atkins includes a
calculation of the net carbs contained in that particular
product. For example, the label on Atkins's "Chocolate Candies"
states that it contains "1g Net Carb." Another statement on the
back of the product label indicates how Atkins calculates the net
carbs claim on the front of the label.
Fernandez contends that these label statements are fraudulent,
misleading, and omit material facts because (1) sugar alcohols,
contrary to the statement on the label, do impact blood sugar;
(2) the labels conflict with the diet espoused by Dr. Atkins in
his 2002 book, in which Dr. Atkins stated that calculating net
carbs should be calculated by subtracting only grams of fiber
from the total grams of carbohydrates; and (3) Atkins's
statements elsewhere that a product contains "only" a certain
amount of net carbs creates a perception that the product is low
in carbs.
As for her allegations that sugar alcohols do impact blood sugar
levels, Fernandez asserts that the authoritative scientific
research on sugar alcohols supports her position. The FAC refers
to statements by the Diabetes Teaching Center at the University
of California, San Francisco; Dr. Regina Castro of the Mayo
Clinic; and Dr. Thomas Wolever. According to Dr. Wolever, 50 to
75% of maltitol -- a sugar alcohol used by Atkins -- is absorbed
into the body. According to the Diabetes Teaching Center, net
carbs should be calculated by subtracting half of the grams of
sugar alcohol, rather than all grams of sugar alcohol.
While the Food and Drug Administration ("FDA") has not regulated
or defined the phrase "net carb," it has indicated in its warning
letters that it has been concerned that the term "may be
misleading to consumers." In 2001, the FDA admonished a company
for not including maltitol as a carbohydrate in its food label.
Canada's FDA counterpart has found the term "net carbs" to be
"not acceptable due to lack of scientific consensus on definition
and its potential to mislead consumers." In 2004, Atkins
announced that it would no longer use the term net carbs on its
food label because it considered the term imprecise. It,
however, reneged on that announcement; it continues to include
net carbs claims on its labels.
The FAC asserts four causes of action: (1) violation of the
California Unfair Competition Law ("UCL"), California Business &
Professions Code Sections 17200 et seq.; (2) violation of the
California False Advertising Law ("FAL"), California Business &
Professions Code Sections 17500 et seq.; (3) breach of an express
warranty in violation of California Commercial Code Section 2313;
and (4) breach of the implied warranty of merchantability in
violation of California Commercial Code Section 2314.
Before the Court is Atkins' motion to dismiss aspects of
Fernandez's FAC. Atkins's motion is separated into two
arguments: (1) Fernandez's state law claims are preempted to the
extent that they attack the net carbs claims and the formula
statements, and (2) Fernandez's state law claims are preempted to
the extent that they attack the explanation statements. As
Fernandez notes in her opposition, nothing in Atkins' motion
challenges the claims regarding its use of the word "only" on its
labels. As a result, the pending motion to dismiss does not seek
dismissal of the entire complaint.
Judge Curiel agrees with Atkins that its net carbs claims and
formula statements comply with federal regulations; as a result,
federal law preempted Fernandez's state law claims challenging
the net carbs claims and formula statements. He also concludes,
however, that Atkins has failed to demonstrate that its
explanation statements comply with federal regulations, and as a
result Atkins has not shown that federal law preempted
Fernandez's state law claims challenging Atkins's explanation
statements.
The Judge explains that the applicable governing regulation is
Section 101.13(i)(3), which permits express nutrient content
claims to the extent that they are not false or misleading in any
respect. Based on the new allegations in the FAC, it is clear
that Atkins's net carbs claims and formula statements are not
false or misleading in any respect. As the FAC states, the label
clearly indicates that Atkins calculates "net carbs" by
subtracting the amount of carbohydrates from fiber and sugar
alcohols from the total amount of carbohydrates. A consumer
reading that formula, and the execution of that formula, would
understand precisely what Atkins means by stating, for example,
that the Chocolate Candies contain "1g Net Carb." As a result,
Atkins is correct that its net carbs claims and formula
statements comply with Section 101.13(i)(3). Fernandez does not
offer any other argument explaining why the net carbs claims and
formula statements violate the federal scheme. As a result, he
concludes that federal law preempts Fernandez's state law claims
challenging Atkins's net carbs claims and formula statements.
As to Fernandez's contention that Atkins' statement that its "Net
Carbs Count assist consumers in tracking carbs that impact blood
sugar" is false and misleading because there is scientific
uncertainty as to whether or not sugar alcohols significantly
impact blood sugar, the Judge finds that the only other argument
Atkins offers on this issue is to point out that the FDA has not
issued a regulation governing label statements explaining a
manufacturer's method of calculating net carbs. He says this is
the second time Atkins has misused this passage. In its previous
ruling, the Court rejected Atkins's use of this identical
quotation. An observer of Atkins's briefing in this case could
reasonably conclude that Atkins has deliberately attempted to
mislead the Court about the contents of Ninth Circuit case law.
Atkins offers no other substantive argument in support of its
motion. As a result, Atkins offers no persuasive reason to
conclude that federal law preempts Fernandez's state law claims
challenging Atkins's explanation statements.
For these reasons, Judge Curiel granted in part and denied in
part Atkins' motion to dismiss.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/JieRv7 from Leagle.com.
Cheryl Fernandez, Individually and on behalf of all others
similarly situated, Plaintiff, represented by Andrea B. Bierstein
-- ABierstein@simmonsfirm.com -- Simmons Hanly Conroy, pro hac
vice, Deborah Ruth Rosenthal -- drosenthal@simmonsfirm.com --
Simmons Hanly Conroy, Matthew L. Dameron --
matt@williamsdirks.com -- Stueve Siegel Hanson LLP, pro hac vice
& Mitchell M. Breit -- mbreit@simmonsfirm.com -- Simmons Hanly
Conroy, pro hac vice.
Atkins Nutritionals, Inc., Defendant, represented by Grant J.
Ankrom -- grant.ankrom@dentons.com -- Dentons US LLP, pro hac
vice, Gregory Wolf -- gregory.wolf@dentons.com -- Dentons US LLP,
pro hac vice & Michael J. Duvall -- michael.duvall@dentons.com --
Dentons US LLP.
AUTOCOM NISSAN: "Sonnier" Suit Asserts FCRA Breach
--------------------------------------------------
Joyce Sonnier, individually and on behalf of all others similarly
situated, Plaintiff, v. Autocom Nissan East Bay and Does 1
through 10, inclusive, and each of them, Defendant, Case No. 18-
cv-02673 (N.D. Cal., May 7, 2018), seeks statutory, actual, and
punitive damages for herself and class members, injunctive and
declaratory relief, and attorneys' fees and costs under the Fair
Credit Reporting Act and the California Consumer Credit Reporting
Agencies Act.
Autocom Nissan is a car dealership located at 1152 Marine Blvd.,
San Leandro, CA 94577. It allegedly pulled Sonnier's credit
information on her credit report when she bought a car and
released the private information to third parties without her
verbal or written authorization. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, 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
Phone: (877) 206-4741
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
twheeler@toddflaw.com
BAYER HEALTHCARE: Court Won't Dismiss Coppertone 30 Suit
--------------------------------------------------------
In the case, ANDREW ROSEMAN, on behalf of himself and all others
similarly situated, Plaintiff, v. BAYER HEALTHCARE LLC and MERCK
& CO., Inc., Defendants, Civil No. 17-13308 (RBK/KMW) (D. N.J.),
Judge Robert B. Kugler of the U.S. District Court for the
District of New Jersey granted the Plaintiff's Motion to Remand
and denied as moot the Defendants' respective Motions to Dismiss.
The case is about sunscreen. The Plaintiff is a New Jersey
citizen who resides in Voorhees, New Jersey. Bayer is a Delaware
LLC with its headquarters and principal place of business located
at 100 Bayer Boulevard, Whippany, New Jersey. Merck is a New
Jersey for-profit corporation with its headquarters and principal
place of business located at 2000 Galloping Hill Road,
Kenilworth, New Jersey.
The Defendants manufactured, labeled, advertised, sold and
distributed Coppertone Sport High Performance SPF 30 sunscreen
spray and lotion. The Plaintiff bought Coppertone 30 and used it
based on its purported Sun Protection Factor ("SPF") levels.
Coppertone 30 conspicuously advertised its claimed SPF level --
30 -- on the front of its bottles and containers.
The Plaintiff's allegations are relatively simple -- he alleges
that the Defendants manufactured, marketed, advertised, and sold
Coppertone 30 as containing SPF 30 protection when in fact it
contained a much lower SPF number. He references tests by
Consumer Reports, Clinical Research Laboratories, LLC, and his
own independent testing to allegedly establish that Coppertone 30
contained an average SPF of between 13.9 and 14.8. The Plaintiff
maintains that his testing complied with all FDA testing methods
embodied in FDA Final Rule, 21 CFR Parts 201 and 310, Federal
Register/Vol 76, No 117/Friday, June 17, 2011/Rules and
Regulations, including 21 CFR 201.327.
As a result, the Plaintiff has brought claims on behalf of
himself and all other similarly-situated New Jersey citizens who
purchased Coppertone 30 from November 2, 2011 to the present.
These claims are: Breach of Warranty (Count I); Breach of Implied
Contract Through Violation of the Implied Covenant of Good Faith
and Fair Dealing (Count II); New Jersey Uniform Declaratory
Judgment Act (Count III); Unjust Enrichment/Quasi-
Contract/Disgorgement/Restitution (Count IV); and the New Jersey
Consumer Fraud Act (Count V). The Plaintiff's claims are
exclusively New Jersey state law claims.
The matter comes before the Court upon the Plaintiff's Motion to
Remand, Defendant Merck's Motion to Dismiss, and Defendant
Bayer's Motion to Dismiss.
There are, though, some peculiar features of the case and the
Plaintiff's proposed class. As the Defendants emphasize in their
Opposition to the Plaintiff's Motion to Remand, the Plaintiff's
counsel filed a nearly identical case in federal court in
Illinois on behalf of a different named plaintiff. In the
Illinois case, the plaintiff seeks to represent a class
consisting of all persons who purchased Coppertone 30 in the
United States from Nov. 2, - to the present. As such, Bayer has
filed a motion to transfer the Northern District of Illinois case
to the District to be consolidated with this action. The
Illinois court has stayed that motion until the Motion to Remand
at issue is decided.
The Defendants make two arguments for the Court's jurisdiction
over the case: (1) that it should reject the Plaintiff's
counsel's jurisdictional gerrymandering; and (2) the Plaintiff's
claims necessarily raise a disputed and substantial issue of
federal law.
Judge Kugler notes the obvious costs and issues for the
Defendants in litigating two parallel cases. He also notes the
Plaintiff's counsel's gamesmanship. But he cannot gut the well-
pleaded complaint rule and replace the Plaintiff in his role as
master of his own complaint just because of potential concerns
stemming from the Plaintiff's counsel's position and
corresponding incentives in both cases. The pleadings are
deliberate. But the Plaintiff has exercised a well-established
right. He cannot force possible compatriots in Illinois upon him
involuntarily.
While the Defendants are correct in their assertion that the
absence of a federal cause of action does not foreclose federal-
question jurisdiction, the Judge says the FDA-prescribed testing
procedures are, in this instance, a federal standard of care in a
state cause of action. The federal procedures to verify SPF and
UV protection efficacy are mandatory for sunscreen manufacturers.
But these procedures are but a part of the Plaintiff's case. The
case is a state action with an embedded federal issue. The
federalized testing requirements do not, alone, mandate the
Court's exercise of jurisdiction. And, where the decision to
remand is a close one, district courts are encouraged to err on
the side of remanding the case back to state court. As such, he
finds that the case must be remanded -- despite the blatant
inefficiencies arising from the parallel case in Illinois.
For the reasons, Judge Kugler granted the Plaintiff's Motion to
Remand, and denied as moot the Defendants' respective Motions to
Dismiss.
A full-text copy of the Court's May 11, 2018 Opinion is available
at https://is.gd/blmcpo from Leagle.com.
ANDREW ROSEMAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by JOSEPH A. OSEFCHEN --
sdenittis@denittislaw.com -- DeNITTIS OSEFCHEN, P.C. & STEPHEN
PATRICK DENITTIS -- sdenittis@denittislaw.com -- DENITTIS
OSEFCHEN, PC.
BAYER HEALTHCARE LLC, Defendant, represented by CHRISTOPHER
EUGENE TORKELSON -- ctorkelson@eckertseamans.com -- ECKERT
SEAMANS CHERIN & MELLOTT, LLC.
MERCK & CO., INC., Defendant, represented by MICHAEL P. DALY --
michael.daly@dbr.com -- DRINKER, BIDDLE & REATH, LLP.
BP WEST COAST: "Bartlett" Sues Over Gas Price Manipulation
----------------------------------------------------------
Richard Bartlett and Kristine Snyder, on behalf of themselves and
all others similarly situated v. BP West Coast Products LLC,
Chevron U.S.A. Inc., Tesoro Refining & Marketing Company LLC,
Equilon Enterprises LLC (dba Shell Oil Products US), Exxon Mobil
Corporation, Valero Marketing and Supply Company, ConocoPhillips,
and Alon USA Energy, Inc., and Does 1-25 inclusive, Case No.
3:18-cv-01374 (S.D. Calif., June 21, 2018), is brought against
the Defendants for violations of California's Cartwright Act and
Unfair Competition Law.
This action concerns Defendants' illegal conspiracy to manipulate
and maintain the prices of gasoline in California at supra
competitive prices.
The Plaintiff Richard Bartlett is a San Diego, California,
resident.
The Plaintiff Kristine Snyder is a San Diego, California,
resident.
Each of the Defendants is a participant in the California
gasoline refinery market. [BN]
The Plaintiff is represented by:
Brian J. Robbins, Esq.
George Aguilar, Esq.
Michael Nicoud, Esq.
ROBBINS ARROYO LLP
600 B Street, Suite 1900
San Diego, CA 92101
Tel: (619) 525-3990
Fax: (619) 525-3991)
E-mail: brobbins@robbinsarroyo.com
gaguilar@robbinsarroyo.com
mnicoud@robbinsarroyo.com
BRASSERIE CENTRAL: "Sosa" Seeks to Recover Minimum and OT Wages
---------------------------------------------------------------
JOHAN SOSA, on behalf of himself and others similarly situated v.
BRASSERIE CENTRAL, LLC, a Florida limited liability company, and
PASCAL OUDIN, an individual, Case No. 1:18-cv-22551-KMW (S.D.
Fla., June 25, 2018), seeks to recover alleged unpaid minimum
wage and overtime compensation, liquidated damages, and other
relief under the Fair Labor Standards Act of 1938.
Brasserie Central, LLC, is a Florida limited liability company
that owns and operates the Brasserie Central restaurant located
at 320 San Lorenzo Avenue, in Coral Gables, Miami-Dade County,
Florida. Pascal Oudin was the sole owner and manager of BC.[BN]
The Plaintiff is represented by:
Robert W. Brock II, Esq.
LAW OFFICE OF LOWELL J. KUVIN
17 East Flagler Street, Suite 223
Miami, FL 33131
Telephone: (305) 358-6800
Facsimile: (305) 358-6808
E-mail: robert@kuvinlaw.com
CBOE EXCHANGE: FTC Capital Suit Moved From S.D.N.Y. to N.D. Ill.
----------------------------------------------------------------
The purported class action lawsuit styled FTC CAPITAL GMBH,
individually and on behalf of all others similarly situated v.
CBOE EXCHANGE, INC., CBOE GLOBAL MARKETS, INC., CBOE FUTURES
EXCHANGE, LLC, and JOHN DOES, Case No. 1:18-cv-05041, was
transferred on June 26, 2018, from the U.S. District Court for
the Southern District of New York to the U.S. District Court for
the Northern District of Illinois.
The Illinois District Court Clerk assigned Case No. 1:18-cv-04375
to the proceeding.
The lawsuit is an antitrust class action against the Defendants
concerning: (i) Volatility Index Futures or Options traded in the
United States since January 1, 2009; and (ii) Volatility Index
Exchange-traded products since January 1, 2009. The Volatility
Index is known under its ticker symbol "VIX." VIX is a benchmark
index created by CBOE Exchange, Inc., a wholly owned subsidiary
of CBOE Global Markets, Inc.
The Plaintiff alleges that the Defendants engaged in manipulative
conduct, which violates the Sherman Act and the Commodity
Exchange Act. The Plaintiff further alleges that this conduct
has caused, and continues to cause, injury to investors in VIX-
Linked Instruments.[BN]
The Plaintiff is represented by:
Michael M. Buchman, Esq.
Erin C. Durba, Esq.
Michelle C. Zolnoski, Esq.
MOTLEY RICE LLC
600 Third Avenue, Suite 2101
New York, NY 10016
Telephone: (212) 577-0040
Facsimile: (212) 577-0054
E-mail: mbuchman@motleyrice.com
edurba@motleyrice.com
mzolnoski@motleyrice.com
- and -
William H. Narwold, Esq.
MOTLEY RICE LLC
One Corporate Center
20 Church St., 17th Floor
Hartford, CT 06103
Telephone: (860) 882-1681
Facsimile: (860) 882-1682
E-mail: bnarwold@motleyrice.com
- and -
Christopher F. Moriarty, Esq.
MOTLEY RICE LLC
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
Telephone: (843) 216-9000
Facsimile: (843) 216-9450
E-mail: cmoriarty@motleyrice.com
- and -
Deborah M. Sturman, Esq.
STURMAN LLC
600 Third Avenue, Suite 2101
New York, NY 10016
Telephone: (212) 367-7017
E-mail: sturman@sturman.ch
CENTURY FEDERAL: Sends Defective Notices to Consumers, Says Suit
----------------------------------------------------------------
ALDONTE FLONNOY v. CENTURY FEDERAL CREDIT UNION, Case No. CV 18
899934 (Ohio Com. Pleas, Cuyahoga Cty., June 25, 2018), is
brought on behalf of the Plaintiff and all others similarly
situated alleging that Century routinely issues defective notices
to Ohio consumers following the sale of their repossessed
vehicles that fail to properly account for the credits,
repossession, auction, and other expenses incurred, and their
residual liability.
Mr. Flonnoy asserts that his proposed class action seeks
equitable and monetary relief to redress a deceptive pattern and
practice of wrongdoing perpetrated by Century in failing to send
post-repossession notices that comply with Ohio Uniform
Commercial Code. Upon repossession, he alleges, Century sends
its borrowers form notices which expressly misstate and violate
their statutory rights.
Century is a federally-chartered credit union, with its principal
place of business in the City of Cleveland, County of Cuyahoga,
Ohio.[BN]
The Plaintiff is represented by:
Ronald I. Frederick, Esq.
Michael L. Berler, Esq.
Michael L. Fine, Esq.
FREDERICK & BERLER LLC
767 185th Street
Cleveland, OH 44119
Telephone: (216) 502-1055
Facsimile: (216) 566-9400
E-mail: ronf@clevelandconsumerlaw.com
mikeb@clevelandconsumerlaw.com
michaelf@clevelandconsumerlaw.com
CHICAGO BRIDGE: Kinra Appeals Ruling in "Giantonio" ERISA Suit
--------------------------------------------------------------
Plaintiff Ramesh C. Kinra filed an appeal from a court ruling in
the lawsuit styled Giantonio v. Chicago Bridge & Iron Company, et
al., Case No. 17-cv-4251, in the U.S. District Court for the
Southern District of New York (New York City).
As previously reported in the Class Action Reporter, John J.
Giantonio, on behalf of the Chicago Bridge & Iron Savings Plan,
The Shaw Group Inc. 401(k) Plan, himself and a class consisting
of similarly situated participants of the Plans, brought the
lawsuit against the Defendants pursuant to the Employee
Retirement Income Security Act of 1974.
According to the complaint, effective January 1, 2016, the Plan
was amended and restated to merge the Plan with The Shaw Group
Inc. 401(k) Plan (the "Shaw Plan" and together with the Shaw Plan
the "Plans"). The action is also brought derivatively on behalf
of the Shaw Plan and its assets. The Plaintiff alleges that the
Defendants, who are fiduciaries of the Plans, failed to protect
the interests of the Plans' Participants in violation of the
Defendants' legal obligations under the ERISA.
The appellate case is captioned as Giantonio v. Chicago Bridge &
Iron Company, et al., Case No. 18-1886, in the United States
Court of Appeals for the Second Circuit.[BN]
Plaintiff-Appellant Ramesh C. Kinra is represented by:
Michael J. Klein, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Telephone: (212) 687-7230
Facsimile: (212) 490-2022
E-mail: mklein@ssbny.com
CINTAS SERVICES: Joint Discovery Letter in "Williams" Terminated
----------------------------------------------------------------
In the case, ATO WILLIAMS, Plaintiff, v. CINTAS SERVICES
CORPORATE SERVICES, INC., et al., Defendants, Case No. 4:17-cv-
01623-JSW (KAW) (N.D. Cal.), Magistrate Judge Kandis A. Westmore
of the U.S. District Court for the Northern District of
California terminated the parties' April 20, 2018 joint discovery
letter concerning the Plaintiff's request for the production of
contact information for all the putative class members.
The parties declined to address the proportionality requirement
in Rule 26, as there is no indication of the number of putative
class members across the 90 California locations. As a result,
Magistrate Judge Westmore is unable to determine whether the
production of the information sought is proportional to the needs
of the case or if another method, such as sampling, would be more
appropriate than producing the contact information for all
putative class members.
Accordingly, she terminated the joint letter and ordered the
parties to further meet and confer in an attempt to resolve the
dispute without further court intervention. Should the parties
be unable to resolve the dispute informally, they will file a
joint letter that complies with the undersigned's standing order.
Notwithstanding, to assist the parties in their meet and confer
efforts, the Magistrate Judge is not persuaded by the Defendant's
argument that discovery should be limited to those employees who
worked in the same two positions and single location as the
Plaintiff. Indeed, although a party seeking class certification
is not always entitled to discovery on the class certification
issue, the propriety of a class action cannot be determined in
some cases without discovery. As the Defendant recognizes,
district courts have broad discretion to control the class
certification process.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/bA6xeG from Leagle.com.
Ato Williams, Plaintiff, represented by Jill Marie Vecchi --
jvecchi@turleylawfirm.com -- The Turley & Mara Law Firm, APLC,
William David Turley -- bturley@turleylawfirm.com -- The Turley
Law Firm, APLC, Gwendolyne Nicole Ousdahl --
nousdahl@turleylawfirm.com -- The Turley & Mara Law Firm &
Matthew Evan Crawford, The Turley and Mara Law Firm.
Cintas Services Corporate Services, Inc., Defendant, represented
by Michelle Mei-Lin Full -- michelle.full@squirepb.com -- Squire
Patton Boggs (US) LLP.
Cintas Corporation No.3, Defendant, represented by Michael W.
Kelly -- michael.kelly@squirepb.com -- Squire Patton Boggs (US)
LLP, Michelle Mei-Lin Full, Squire Patton Boggs (US) LLP &
Suzanne Spaulding Orza -- suzy.orza@squirepb.com -- Squire Patton
Boggs (US) LLP.
COMFORT COVER: "Ayers" Suit Seeks Damages under FLSA
----------------------------------------------------
Westley Ayers, on behalf of himself and on behalf of all others
similarly situated v. Comfort Cover Systems, Inc., Case No. 8:18-
cv-01541 (M.D. Fla., June 26, 2018), seeks damages under the Fair
Labor Standards Act for the Defendant's failure to pay overtime.
The Plaintiff is a resident of Pinellas County, Florida and was
employed by the Defendant as an installer.
The Defendant Comfort Cover Systems, Inc. operates a roofing
supply store in Clearwater, in Pinellas County, Florida. [BN]
The Plaintiff is represented by:
Donna V. Smith, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Avenue, Suite 300
Tampa, FL 33602
Tel: (813) 224-0431
Fax: (813) 229-8712
E-mail: dsmith@wfclaw.com
COMPLEX OMV: "Fernandes" Action to Claim Unpaid Overtime
--------------------------------------------------------
Stanley J. Fernandes, and all others similarly situated
Plaintiffs, v. Complex OMV, Inc., Mircea Osvath and Ana Irina
Chirla, Defendants, Case No. 18-cv-01475, (S.D. Tex., May 8,
2018), seeks equitable relief, compensatory and liquidated
damages, attorney's fees, all costs of the action and post-
judgment interest for Defendants' willful failure to pay overtime
wages under the Fair Labor Standards Act.
Fernandes worked as a clerk for the Defendants' Valero branded
gas station and convenience store under the name Diamond Food
Mart located at 12672 Veterans Memorial Drive, Houston, Texas
77014. Fernandes typically worked from 12:00 p.m. until 12:00
a.m., seven days a week, without any overtime pay. [BN]
Plaintiff is represented by:
Salar Ali Ahmed, Esq.
ALI S. AHMED, P.C.
One Arena Place
7322 Southwest Frwy., Suite 1920
Houston, TX 77074
Telephone: (713) 223-1300
Facsimile: (713) 255-0013
Email: aahmedlaw@gmail.com
CUSHMAN & WAKEFIELD: "Valdivieso" $390K Deal Has Prelim Approval
----------------------------------------------------------------
In the case, LUIS A. VALDIVIESO, Plaintiff, v. CUSHMAN &
WAKEFIELD INC., Defendant, Case No. 8:17-cv-118-T-23JSS (M.D.
Fla.), Judge Steven D. Merryday of the U.S. District Court for
the Middle District of Florida, Tampa Division, granted the
parties' motion for certification of a certification of a
settlement-only class, for preliminary approval of the
settlement, and for leave to notify the class about the
settlement.
Valdivieso sues Cushman & Wakefield for violating COBRA's notice
requirements. According to him, the notice mailed to former
employees fails to specify the day on which COBRA coverage ends
and fails to include the address to which a person who elects
COBRA coverage must remit the COBRA insurance premium.
The parties move for certification of a settlement-only class,
for preliminary approval of the settlement, for appointment of
class counsel, and for approval of the class notice. Under the
settlement, Cushman & Wakefield will establish a $390,000
"settlement fund." After accounting for an attorney's fee,
reasonable expenses, and an incentive award for Valdivieso, each
class member likely will receive about $100.
The parties propose a class comprising of all persons who were
sent a COBRA Notice or should have been sent a COBRA notice by or
on behalf of C&W at any time from Feb. 1, 2015 through Dec. 31,
2016. They request the appointment of Luis A. Cabassa, Brandon
J. Hill, and Chad A. Justice, each of whom has served as the
class counsel in other actions, to represent the class in the
action.
Judge Merryday finds that the settlement-only class satisfies
Rule 23(b)(3) and avoids the prospect of intractable management
problems. The also settlement appears to resolve the action
fairly, adequately, and reasonably. And because the counsel
appears capable of adequately protecting the class, the request
warrants granting.
However, the Judge finds that several items in the notice appear
confusing or unhelpful. Additionally, the notice fails to
explain the consequence of not "opting out" of the class. The
parties must add an explanation that the settlement binds a class
member unless the class member requests exclusion from the class.
Excepting these items, the notice warrants approval. After
remedying these defects, the parties may mail the notice.
For these reasons, Judge Merryday granted the motion for
certification of a certification of a settlement-only class, for
preliminary approval of the settlement, and for leave to notify
the class about the settlement. No later than Aug. 22, 2018, a
class member may object to the settlement or request exclusion
from the class. No later than Nov. 2, 2018, in a memorandum no
longer than 25 pages, the parties may move for final approval of
the settlement, including an attorney's fee for the class
counsel, costs, reasonable expenses, and an incentive award for
Valdivieso. A fairness hearing is set for 9:30 a.m. on Nov. 19,
2018.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/8fRz3Q from Leagle.com.
Luis A Valdivieso, individually and on behalf of all others
similarly situated, Plaintiff, represented by Brandon J. Hill,
Wenzel Fenton Cabassa, PA, Chad Andrew Justice, Black Rock Trial
Lawyers & Luis A. Cabassa, Wenzel Fenton Cabassa, PA.
Cushman & Wakefield Inc., Defendant, represented by Merry E.
Lindberg -- mlindberg@fordharrison.com -- Ford & Harrison, LLP &
Todd Sidney Aidman -- taidman@fordharrison -- Ford & Harrison,
LLP.
Brett J. Preston, Mediator, pro se.
Anthem, Inc., Non-party subpoena recipient, Movant, represented
by Edward M. Mullins -- emullins@reedsmith.com -- Reed Smith LLP
& Sujey Scarlett Herrera -- sherrera@reedsmith.com -- Reed Smith
LLP.
Empire HealthChoice Assurance Inc., Non-party subpoena recipient,
Movant, represented by Edward M. Mullins, Reed Smith LLP & Mark
D. Temple, Reed Smith, LLP, pro hac vice.
CUYAHOGA COUNTY, OH: Ct. Won't Certify "Smith" Inmates Class
------------------------------------------------------------
In the case, DARRYL SMITH, Plaintiff, v. CLIFFORD PINKNEY,
Defendants, Case No. 1:18-CV-163 (N.D. Ohio), Judge James S. Gwin
of the U.S. District Court for the Northern District of Ohio (i)
denied the Plaintiff's motion for class certification; (ii)
denied Aaron Harmon's motion to assign/designate him as a co-
representative of the class; and (iii) denied the motions to join
the class action filed by the other inmates.
Smith brings a prisoner civil rights action under 42 U.S.C.
Section 1983 regarding prison conditions at Cuyahoga County
Correctional Center. During his time at the Cuyahoga County
jail, Smith alleges he suffered from felonious assaults and
beatings, violation of his due process rights, denial of medical
care, retaliation for filing grievances, and unsafe and unhealthy
confinement conditions.
On Feb. 23, 2018, Smith filed a motion for class certification.
The Court construes the Plaintiff's filing as moving to certify
the class of pretrial detainees at the Cuyahoga County jail who
have experienced, currently experience, and will experience
dangerous overcrowding, assaults by other prisoners, severe and
malicious beatings by the Defendants and their guards, food
deprivations, unsafe building conditions, denial of medical care,
and other unlawful confinement conditions.
Other Cuyahoga County jail inmates have also filed motions to
join the proposed class. Inmate Harmon has moved to be
assigned/designated as a co-class representative.
Judge Gwin finds that the Plaintiff has failed to satisfy his
burden. First, to maintain a class action, the existence of the
class must be pleaded and the limits of the class must be defined
with some specificity. The Plaintiff has not met this
requirement. Second, Plaintiff Smith has not shown commonality.
The damages suffered by individual pretrial detainees do not
appear to be sufficiently similar. And Plaintiff puts forth no
evidence suggesting otherwise. Third, Plaintiff Smith has not
shown typicality. He has not put forth any evidence, other than
conclusory statements, showing that his claims are typical of the
putative class members' claims. Finally, Plaintiff Smith and
inmate Harmons are not adequate class representatives. Rule
23(a)(4) does not permit pro se litigants to serve as class
representatives. Moreover, because Plaintiff Smith has left the
Cuyahoga County jail, he is no longer in an adequate position to
represent the interests of the pretrial detainees still housed at
the jail.
For these reasons, Judge Gwin denied the (i) Plaintiff's motion
for class certification; (ii) Harmon's motion to assign/designate
him as a co-representative of the class. Because class
certification is denied, he also denied the motions to join the
class action filed by Kenneth Peete, Aaron Harmon, Tyrone West,
Michael Tater, Jewan Kyle, Terrance D. Williams, Terrence L.
Hardy, Ronald Saunders, Jammie Young, Anthony F. Molina, Earl
Chicano Thornton, Edward Swindel III, Bernard J. Murrell, Jr.,
Brian Clipps, Christopher Forrest, Kurtis L. Fields, Ronald G.
Banks, Willie D. Butler, Willie M. Moore, Timothy Hill, Kyron
Marlin, and Javon Stubbs.
A full-text copy of the Court's May 11, 2018 Amended Opinion and
Order is available at https://is.gd/DGEfn2 from Leagle.com.
Darryl Smith, also known as Darnell Smith, Plaintiff, pro se.
Clifford Pinkney, Cuyahoga County Sheriff; individual and
official capacity, Eric Ivey, Warden of Cuyahoga County Jail;
individual and official capacity, Christopher Cepik, Deputy
Sheriff; individual and official capacity & Detective Divita,
individual and official capacity, Defendants, represented by
Brian R. Gutkoski, Office of the Prosecuting Attorney.
Kyron Marlin, Movant, pro se.
Javon Stubbs, Movant, pro se.
CUYAHOGA COUNTY, OH: "Smith" Inmates Class Cert. Bid Denied
-----------------------------------------------------------
In the case, DARRYL SMITH, Plaintiff, v. CLIFFORD PINKNEY, et.
al, Defendants (N.D. Ohio), Judge James S. Gwin of the U.S.
District Court for the Northern District of Ohio denied (i) the
Plaintiff's motion for class certification; (ii) Aaron Harmon's
motion to assign/designate him as a co-representative of the
class; and (iii) the motions to join the class action filed by
the other inmates.
Smith brings a prisoner civil rights action under 42 U.S.C.
Section 1983 regarding prison conditions at Cuyahoga County
Correctional Center. During his time at the Cuyahoga County
jail, Smith alleges he suffered from felonious assaults and
beatings, violation of his due process rights, denial of medical
care, retaliation for filing grievances, and unsafe and unhealthy
confinement conditions.
On Feb. 23, 2018, Smith filed a motion for class certification.
The Court construes the Plaintiff's filing as moving to certify
the class of pretrial detainees at the Cuyahoga County jail who
have experienced, currently experience, and will experience
dangerous overcrowding, assaults by other prisoners, severe and
malicious beatings by the Defendants and their guards, food
deprivations, unsafe building conditions, denial of medical care,
and other unlawful confinement conditions.
Other Cuyahoga County jail inmates have also filed motions to
join the proposed class. Inmate Harmon has moved to be
assigned/designated as a co-class representative.
Judge Gwin finds that the Plaintiff has failed to satisfy his
burden. First, to maintain a class action, the existence of the
class must be pleaded and the limits of the class must be defined
with some specificity. The Plaintiff has not met this
requirement. Second, Plaintiff Smith has not shown commonality.
The damages suffered by individual pretrial detainees do not
appear to be sufficiently similar. And Plaintiff puts forth no
evidence suggesting otherwise. Third, Plaintiff Smith has not
shown typicality. He has not put forth any evidence, other than
conclusory statements, showing that his claims are typical of the
putative class members' claims. Finally, Plaintiff Smith and
inmate Harmons are not adequate class representatives. Rule
23(a)(4) does not permit pro se litigants to serve as class
representatives. Moreover, because Plaintiff Smith has left the
Cuyahoga County jail, he is no longer in an adequate position to
represent the interests of the pretrial detainees still housed at
the jail.
For these reasons, Judge Gwin denied the (i) Plaintiff's motion
for class certification; (ii) Harmon's motion to assign/designate
him as a co-representative of the class. Because class
certification is denied, he also denied the motions to join the
class action filed by Kenneth Peete, Aaron Harmon, Tyrone West,
Michael Tater, Jewan Kyle, Terrance D. Williams, Terrence L.
Hardy, Ronald Saunders, Jammie Young, Anthony F. Molina, Earl
Chicano Thornton, Edward Swindel III, Bernard J. Murrell, Jr.,
Brian Clipps, Christopher Forrest, Kurtis L. Fields, Ronald G.
Banks, Willie D. Butler, Willie M. Moore, and Timothy Hill.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/reTPXB from Leagle.com.
Darryl Smith, also known as, Plaintiff, pro se.
Clifford Pinkney, Cuyahoga County Sheriff; individual and
official capacity, Eric Ivey, Warden of Cuyahoga County Jail;
individual and official capacity, Christopher Cepik, Deputy
Sheriff; individual and official capacity & Detective Divita,
individual and official capacity, Defendants, represented by
Brian R. Gutkoski, Office of the Prosecuting Attorney - Cuyahoga
County.
Kyron Marlin, Movant, pro se.
DAVITA HEALTHCARE: Accused by "Wilson" FLSA Suit of Not Paying OT
-----------------------------------------------------------------
LACEY WILSON, individually and on behalf of all others similarly
situated v. DAVITA HEALTHCARE PARTNERS, INC. and TOTAL RENAL CARE
INC., Case No. 1:18-cv-01591 (D. Colo., June 25, 2018), alleges
that the Defendants failed to pay the Plaintiff and other
Polaris-Palmer DaVita clinical and/or clerical employees overtime
wages for their work performed off the clock in excess of their
40-hour workweek, in violation of the Fair Labor Standards Act.
Davita Healthcare Partners is a Colorado incorporated company
organized under the laws of Colorado doing business in Denver,
Colorado. Total Renal Care, Inc., is a Colorado incorporated
company organized under the laws of Colorado doing business in
Denver.
The Defendants are a Fortune 500 Company that provides a variety
of health care services to patients throughout the United States
and abroad. The Defendants specialize in dialysis services for
patients with chronic kidney failure and end stage renal
disease.[BN]
The Plaintiff is represented by:
Colleen T. Calandra, Esq.
Madison Fiedler Carlson, Esq.
RAMOS LAW
3000 Youngfield Street
Wheat Ridge, CO 80215
Telephone: (303) 733-6353
Facsimile: (303) 865-5666
E-mail: colleen@ramoslaw.com
madison@ramoslaw.com
- and -
Ronald L. Wilcox, Esq.
WILCOX LAW FIRM, LLC
383 Corona Street, #401
Denver, CO 80218
Telephone: (303) 594-6720
E-mail: ron@wilcox.legal
DAVITA HEALTHCARE: Fails to Pay Overtime Wages, "Sullivan" Claims
-----------------------------------------------------------------
PAT SULLIVAN, JAMES WORSHAM, and STARR DAVIS, individually and on
behalf of all others similarly situated v. DAVITA HEALTHCARE
PARTNERS, INC. and TOTAL RENAL CARE INC., Case No. 1:18-cv-01589
(D. Colo., June 25, 2018), alleges that the Defendants violated
the Fair Labor Standards Act by failing to pay the Plaintiffs and
other Endeavor-Palmer DaVita clinical and/or clerical employees
overtime wages for their work performed off the clock in excess
of their 40 hour workweek.
Davita Healthcare Partners is a Colorado incorporated company
organized under the laws of Colorado doing business in Denver,
Colorado. Total Renal Care, Inc., is a Colorado incorporated
company organized under the laws of Colorado doing business in
Denver.
The Defendants are a Fortune 500 Company that provides a variety
of health care services to patients throughout the United States
and abroad. The Defendants specialize in dialysis services for
patients with chronic kidney failure and end stage renal
disease.[BN]
The Plaintiffs are represented by:
Colleen T. Calandra, Esq.
Madison Fiedler Carlson, Esq.
RAMOS LAW
3000 Youngfield Street
Wheat Ridge, CO 80215
Telephone: (303) 733-6353
Facsimile: (303) 865-5666
E-mail: colleen@ramoslaw.com
madison@ramoslaw.com
- and -
Ronald L. Wilcox, Esq.
WILCOX LAW FIRM, LLC
383 Corona Street, #401
Denver, CO 80218
Telephone: (303) 594-6720
E-mail: ron@wilcox.legal
DAVITA HEALTHCARE: Sued by Weatherby of Not Paying OT Under FLSA
----------------------------------------------------------------
DONNA WEATHERBY, LIAN TANG, and KAREN JUDD, individually and on
behalf of all others similarly situated v. DAVITA HEALTHCARE
PARTNERS, INC. and TOTAL RENAL CARE INC., Case No. 1:18-cv-01594
(D. Colo., June 25, 2018), accuses the Defendants of violating
the Fair Labor Standards Act by failing to pay the Plaintiffs and
other Trailblazers-Palmer DaVita clinical and/or clerical
employees overtime wages for their work performed off the clock
in excess of their 40-hour workweek.
Davita Healthcare Partners is a Colorado incorporated company
organized under the laws of Colorado doing business in Denver,
Colorado. Total Renal Care, Inc., is a Colorado incorporated
company organized under the laws of Colorado doing business in
Denver.
The Defendants are a Fortune 500 Company that provides a variety
of health care services to patients throughout the United States
and abroad. The Defendants specialize in dialysis services for
patients with chronic kidney failure and end stage renal
disease.[BN]
The Plaintiffs are represented by:
Colleen T. Calandra, Esq.
Madison Fiedler Carlson, Esq.
RAMOS LAW
3000 Youngfield Street
Wheat Ridge, CO 80215
Telephone: (303) 733-6353
Facsimile: (303) 865-5666
E-mail: colleen@ramoslaw.com
madison@ramoslaw.com
- and -
Ronald L. Wilcox, Esq.
WILCOX LAW FIRM, LLC
383 Corona Street, #401
Denver, CO 80218
Telephone: (303) 594-6720
E-mail: ron@wilcox.legal
DIRECTIONAL PROJECT: "Bratcher" Suit Alleges FLSA Violations
------------------------------------------------------------
Woodrow Bratcher, Jr., individually and on behalf of all others
similarly situated v. Directional Project Support, Inc., and
William Gardner, Case No. 5:18-cv-00631 (W.D. Tex., June 22,
2018), is brought against the Defendants for violations of the
Fair Labor Standards Act.
The Plaintiff specifically was referred to as a "Welding
Inspector" for Defendants during the three years prior to the
filing of this lawsuit, occupied this position for a period of
several consecutive years, and until approximately April 2018.
The Defendant DPS is a horizontal directional drilling business
and does business throughout Texas, Ohio, and the United States.
The Defendant Gardner holds himself out as the President of DPS
in which capacity he has controlled the day-to-day operations of
Defendant DPS. [BN]
The Plaintiff is represented by:
Jay Forester, Esq.
FORESTER HAYNIE PLLC
1701 N. Market Street, Suite 210
Dallas, TX 75202
Tel: (214) 210-2100
Fax: (214) 346-5909
DL PROSPECT: Trinidad-Mendoza Sues Over Denied OT Wages
-------------------------------------------------------
Juana Trinidad-Mendoza, Milton Prado and Francisco Rodiguez, on
behalf of themselves and all others similarly situated,
Plaintiffs, v. DL Prospect, Inc., a California corporation, DL
Pruneyard, Inc., a California corporation, Lan T. Duong, an
individual, doing business as Togo's Sandwiches and Does 1
through 10, Defendants, Case No. 18-cv-02679, (N.D. Cal., May 7,
2018), seeks redress for failure to pay overtime, provide meal
periods and/or rest periods and accurate wage statements in
violation of California Labor Code Sections 201- 203 and the Fair
Labor Standards Act.
Defendants operate several Togo's Sandwiches franchise
restaurants in California where Plaintiffs worked. They claim to
be denied paid rest breaks or unpaid lunch breaks and were not
paid at an overtime rate when working more than 8 hours per day
or 40 hours per week, says the complaint. [BN]
Plaintiff is represented by:
Anthony J. Nunes, Esq.
NUNES WORKER RIGHTS LAW, APC
15260 Ventura Blvd, Suite 1200
Sherman Oaks, CA 91403
Telephone: (530) 848-1515
Fax: (424) 252-4301
Email: tony@nunesworkerrightslaw.com
DOMINOS PIZZA: "Simeon" Suit Remains in NY District Court
---------------------------------------------------------
The United States District Court for the Eastern District of New
York denied Plaintiffs' Motion to Remand the case captioned PETER
SIMEON, individually and on behalf of all others similarly
situated, Plaintiff, v. DOMINOS PIZZA, LLC, Defendant, No. 17 CV
5550 (RJD)(ST)(E.D.N.Y.) to the New York State Supreme Court.
The Plaintiff suggests that the class action waiver means the
Defendant fails as a matter of law to plausibly establish the
class action requirements for Class Action Fairness Act (CAFA).
jurisdiction, emphasizing also that not all of the claims are
class claims. The Defendant, on the other hand, maintains that
this is a putative class action within in the meaning of CAFA
because the class consists of more than 100 persons, minimal
diversity exists (the Plaintiff is a citizen of New York, while
the Defendant is incorporated in Michigan), and the amount in
controversy requirement, exceeding five million dollars, is
satisfied.
A full-text copy of the District Court's May 10, 2018 Memorandum
and Order is available at https://tinyurl.com/ybjhbsuf from
Leagle.com.
Peter Simeon, Plaintiff, represented by Abdul Karim Hassan, Abdul
Hassan Law Group, PLLC.
Domino's Pizza, LLC, Defendant, represented by Joseph A. Piesco,
Jr. -- joseph.piesco@dlapiper.com -- DLA Piper LLP, Garrett David
Kennedy -- garrett.kennedy@dlapiper.com -- DLA Piper LLP & Norman
Mitchell Leon -- norman.leon@dlapiper.com -- DLA Piper LLP.
DOVEX FRUIT: Workers Win Favorable Ruling in Piece-Rate Suit
------------------------------------------------------------
The Supreme Court of Washington, En Banc, issued an Opinion
providing answers concerning two question of law in the case
captioned CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF WASHINGTON IN MARIANO CARRANZA and ELISEO
MARTINEZ, individually and on behalf of all others similarly
situated, Plaintiffs, v. DOVEX FRUIT COMPANY, Defendant, No.
94229-3 (Wash.).
This case asks the state Supreme Court to apply that general
principle to the specific context of agricultural workers who are
paid on a piece-rate basis for piece-rate picking work by
answering the following two questions, which were certified to
the Court by Judge Mendoza of the United States District Court
for the Eastern District of Washington:
A. Does Washington law require agricultural employers to pay
their pieceworkers for time spent performing activities outside
of piece-rate picking work (Piece Rate Down Time and similar
work)?
B. If the answer to the above question is yes, how must
agricultural employers calculate the rate of pay for time spent
performing activities outside of piece-rate picking work (Piece
Rate Down Time and similar work)?
This case began in 2016 when the two named plaintiffs filed a
putative class action lawsuit against Dovex on behalf of Dovex's
seasonal and migrant agricultural employees. Each summer, Dovex
employs hundreds of seasonal and migrant workers, many of whom
speak limited English, to harvest apples, pears, and cherries in
Dovex's orchards. The plaintiffs allege that Dovex violated
state and federal law by willfully refusing to pay wages and
failing to pay minimum wage, provide paid rest breaks, maintain
accurate and adequate time and wage records, pay wages when due,
and provide accurate statements of hours worked.
First Certified Question
The Minimum Wage Act (MWA) states that every employer shall pay
to each of his or her employees who has reached the age of
eighteen years wages at a rate of not less than the applicable
minimum wage per hour. The central issue here is the Court's
interpretation of the phrase "at a rate of not less than the
applicable minimum wage per hour" and its narrow application to
agricultural workers who are paid on a piece-rate basis.
The Plaintiffs' claim in this case that they are not paid for
time spent traveling between orchards. Also similar to the
plaintiffs' claim in this case that they are not paid for time
spent at mandatory meetings and trainings is the claim of the
plaintiffs in Seattle Prof'l Eng'g Emps. Ass'n v. Boeing Co.,
that they were required to attend a 'pre-employment orientation'
session without compensation.
Dovex nevertheless argues that its pay structure is permissible
because each week, a worker's total piece-rate compensation
divided by his or her total hours worked equals at least the
applicable minimum wage. This argument misses the point. As the
Court noted in Lopez Demetrio, a case that considered an
analogous piece-rate compensation structure, "[i]f the picker is
not picking, the picker is not earning money." Workweek
averaging ignores the per hour right to compensation that the MWA
imposes by making it possible to conceal the fact that an
employer is not compensating its employees for all hours worked
because payment for some hours of piece-rate picking work is
spread across all hours worked.
This interpretation places few limitations on an employer.
Despite protestations from the dissent, nothing would prevent an
employer from ordering its workers to clean the toilets without
further pay after completing their piece-rate picking work for
the day. However, no applicable interpretive case law or
regulations justify allowing workweek averaging in this context.
Dovex and Justice Stephens' dissent's suggested approach of using
workweek averaging to measure compliance with the MWA is also
inconsistent with Washington's "long and proud history of being a
pioneer in the protection of employee rights." It is
unquestionable that no legislation has attempted to refute this
history or this state's commitment to it. However, Dovex and the
dissent's interpretation risks doing just that for seasonal and
migrant agricultural workers, a group that is historically
comprised of vulnerable workers who often face language barriers,
have limited education, and endure difficult working conditions,
and for whom employment protections have been hard fought.
The Court therefore holds that agricultural workers who are paid
on a piece-rate basis are entitled to separate hourly
compensation for the time they spend performing tasks outside of
piece-rate picking work. Despite the dissent's effort to paint
this holding as extending far beyond this case and seriously
undermining the piece-rate payment system as a viable
compensation plan, the Court says its decision is limited, as it
must be, to agricultural workers.
The answer to the first certified question is yes.
Second Certified Question
Because the answer to the first certified question is in the
affirmative, the Court must determine how an employer must
calculate the rate of pay for the time its agricultural employees
who are compensated on a piece-rate basis spend performing tasks
outside of piece-rate picking work. This Court answers the second
certified question consistent with the answer requested by the
parties.
It is undisputed that the employees are entitled to at least
minimum wage because the MWA "sets the floor below which the
agreed rate cannot fall without violating the statute." It is
also undisputed that an employer can enter into a contractual
agreement to pay its workers at a different rate that is above
minimum wage. Therefore, an employer must pay its workers
minimum wage or a contractually agreed upon rate, whichever is
higher, for time spent on activities outside the scope of piece-
rate picking.
The answer to the first certified question is yes. The MWA
provides that an agricultural worker who is paid on a piece-rate
basis for piece-rate picking work must be paid separate hourly
compensation for the time he or she spends performing tasks
outside of piece-rate picking work. The answer to the second
question is that the separate rate of pay must be at least
minimum wage or the agreed upon rate, whichever is higher.
A full-text copy of the state Supreme Court's May 10, 2018
Opinion is available at https://tinyurl.com/y7w9tcxa from
Leagle.com.
Marc Cote, Frank Freed Subit & Thomas LLP, Toby James Marshall --
tmarshall@terrellmarshall.com -- Terrell Marshall Law Group PLLC,
Counsel for Plaintiff(s).
Clay M Gatens -- clayg@jdsalaw.com -- Sally Francis White --
sallyw@jdsalaw.com -- Jeffers, Danielson, Sonn & Aylward, P.S.,
Devon Amy Gray -- devong@jdsalaw.com -- Jeffers, Danielson, Sonn
& Aylward, P.S., Counsel for Defendant(s).
Mario Martinez, Matthew Hyrum Adams, Amicus Curiae on behalf of
United Farm Workers of America.
Mario Martinez, Matthew Hyrum Adams, NW Immigrants Rights
Project, Amicus Curiae on behalf of Migrant Clinicians Network.
Julian Hua Beattie, Washington State Office of the Attorney,
Solicitor General Division Attorney General, Attorney at Law,
Amicus Curiae on behalf of Attorney General.
Andrea L Schmitt, Columbia Legal Services, Joachim Morrison,
Attorney at Law, Amicus Curiae on behalf of Familias Unidas Por
Law Justicia.
Rebecca A. Smith, National Employment Law Project, Amicus Curiae
on behalf of National Employment.
Bruce Goldstein, Amicus Curiae on behalf of Farmworker Justice.
Sarah Lynn Clarke Wixson, Stokes Lawrence Velikanje Moore &
Shore, Brendan V. Monahan, Stokes Lawrence Velikanje Moore &
Shore, Amicus Curiae on behalf of Washington State Tree Fruit
Association.
David N. Mark, Washington Wage Claim Project, Amicus Curiae on
behalf of Washington Wage Claim Project.
Jeffrey Lowell Needle, Attorney at Law, Amicus Curiae on behalf
of Washington Employment Lawyers Association.
Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, Amicus Curiae
on behalf of Raymond Schmitten, Antonio Maldonado Jr., Johnny
Duarte, Del Feigel, Faustino Barrios, Natividad Rubio, Felipe
Maldonado, Cristian Torres, Geronimo Carrillo, Refugio Carrillo,
Pedro Garduno, Raymundo Garduno, Natalie Garduno, Mario Martinez,
Leobardo Cardenas, Julio Mareno, Jose Dominguez, Miguel Meza,
Nicanor Silva, Aaron Hernandez and Washington Trucking
Association.
DYANSYS INC: Fromer Chiropractic Sues Over Unsolicited Faxed Ads
----------------------------------------------------------------
Eric B. Fromer Chiropractic, Inc., a California corporation,
individually and as the representative of a class of similarly-
situated persons, Plaintiff, v. Dyansys, Inc., a Delaware
corporation, Defendant, Case No. 18-cv-02703, (N.D. Cal., May 8,
2018), seeks statutory and treble damages, injunctive relief,
compensation and attorney fees for violation of the Telephone
Consumer Protection Act of 1991, as amended by the Junk Fax
Prevention Act of 2005.
Plaintiff received faxed advertisements from Dyansys sent without
prior proper opt-out language or without prior express invitation
or permission. [BN]
Plaintiff is represented by:
Robert C. Schubert, Esq.
Willem F. Jonckheer, Esq.
SCHUBERT JONCKHEER & KOLBE LLP
Three Embarcadero Center, Suite 1650
San Francisco, CA 94111
Telephone: (415) 788-4220
Facsimile: (415) 788-0161
Email: rschubert@schubertlawfirm.com
wjonckheer@schubertlawfirm.com
- and -
Brian J. Wanca, Esq.
Ryan M. Kelly, Esq.
ANDERSON & WANCA
3701 Algonquin Road, Ste. 500
Rolling Meadows, IL 60008
Telephone: (847)368-1500
Facsimile: (847)368-1501
Email: bwanca@andersonwanca.com
rkelly@andersonwanca.com
ELITE LAWNS: "Acevedo" Suit Seeks to Recover Unpaid Overtime
------------------------------------------------------------
David Acevedo, individually and on behalf of all those similarly
situated v. Elite Lawns, Inc. and Darrell McMillin, Case No.
1:18-cv-03012 (N.D. Ga., June 21, 2018), seeks to recover unpaid
overtime pursuant to the Fair Labor Standards Act.
The Plaintiff worked for Elite Lawns, Inc. as a laborer.
The Defendants operate a landscaping, hardscaping, and erosion
control company called Elite Lawns, Inc. based out of McDonough,
GA. [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
Tel: (404) 343-2441
Fax: (404) 352-5636
E-mail: brandon@brandonthomaslaw.com
EMERGENT BIOSOLUTIONS: Appeals Ruling in "Sponn" Suit to 4th Cir.
-----------------------------------------------------------------
Defendants Daniel J. Abdun-Nabi, Fuad El-Hibri, Emergent
Biosolutions, Inc., HQ, Adam R. Havey and Robert G. Kramer filed
an appeal from a court ruling in the lawsuit entitled William
Sponn v. Emergent Biosolutions, Inc., et al., Case No. 8:16-cv-
02625-RWT, in the United States District Court for the District
of Maryland at Greenbelt.
As previously reported in the Class Action Reporter, on July 19,
2016, Plaintiff William Sponn, or Sponn, filed a putative class
action complaint in the United States District Court for the
District of Maryland, or the Court, on behalf of purchasers of
the Company's common stock between January 11, 2016 and June 21,
2016, inclusive, or the Class Period, seeking to pursue remedies
under the Securities Exchange Act of 1934 against the Company and
certain of its senior officers and directors, collectively, the
Defendants. The complaint alleges, among other things, that the
Company made materially false and misleading statements about the
government's demand for BioThrax and expectations that the
Company's five-year exclusive procurement contract with the U.S.
Department of Health and Human Services, or HHS, would be renewed
and omitted certain material facts. Sponn is seeking unspecified
damages, including legal costs.
On October 25, 2016 the Court added City of Cape Coral Municipal
Firefighters' Retirement Plan and City of Sunrise Police
Officers' Retirement Plan as plaintiffs and appointed them Lead
Plaintiffs and Robins Geller Rudman & Dowd LLP as Lead Counsel.
On December 27, 2016, the Plaintiffs filed an amended complaint
that cites the same class period, names the same defendants and
makes similar allegations to the original complaint.
The appellate case is captioned as Emergent Biosolutions, Inc.,
et al. v. William Sponn, Case No. 18-262, in the United States
Court of Appeals for the Fourth Circuit.[BN]
Plaintiff-Respondent WILLIAM SPONN, Individually and on Behalf of
All Others Similarly Situated, is represented by:
Dana Whitehead McKee, Esq.
BROWN, GOLDSTEIN & LEVY, LLP
120 East Baltimore Street
Baltimore, MD 21202
Telephone: (410) 962-1030
E-mail: dwm@browngold.com
- and -
Samuel Howard Rudman, Esq.
Robert D. Gerson, Esq.
Francis P. Karam, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
58 South Service Road
Melville, NY 11747-0000
Telephone: (631) 367-7100
E-mail: srudman@rgrdlaw.com
rgerson@rgrdlaw.com
fkaram@rgrdlaw.com
- and -
Jonah H. Goldstein, Esq.
Mark T. Millkey, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
655 West Broadway
San Diego, CA 92101-0000
Telephone: (619) 231-1058
E-mail: jonahg@rgrdlaw.com
mmillkey@rgrdlaw.com
Defendants-Petitioners ADAM R. HAVEY, EMERGENT BIOSOLUTIONS,
INC., HQ, FUAD EL-HIBRI, DANIEL J. ABDUN-NABI and ROBERT G.
KRAMER are represented by:
Yosef Judah Riemer, Esq.
Matthew Osborn Solum, Esq.
KIRKLAND & ELLIS, LLP
601 Lexington Avenue
New York, NY 10022
Telephone: (212) 446-4802
E-mail: yriemer@kirkland.com
msolum@kirkland.com
ENERGY FIRST: "Garcia" Labor Suit to Recover Unpaid Overtime
------------------------------------------------------------
Rene Garcia, individually and on behalf of all others similarly
situated Plaintiff, v. Energy First Engineering & Consulting, LLC
and Crestone Peak Resources, LP, Case No. 18-cv-00428, (S.D.
Tex., May 8, 2018), seeks to recover unpaid overtime wages and
other damages under the Fair Labor Standards Act.
Garcia worked for Crestone as a wellsite supervisors assigned to
Energy First. He regularly worked more than 40 hours a week but
was not paid overtime, says the complaint.
Energy First is an oil and gas staffing company operating
throughout the United States, including Texas. Defendants
classified Garcia as an independent contractor and paid him on a
day-rate basis. [BN]
Plaintiff is represented by:
Michael A. Josephson, Esq.
Lindsay R. Itkin, Esq.
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
Email: mjosephson@mybackwages.com
litkin@ mybackwages.com
- and -
Richard J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
Email: rburch@brucknerburch.com
ERIE INDEMNITY: 3rd Cir. Affirms Insurance Exch. Suit Dismissal
---------------------------------------------------------------
The United States Court of Appeals, Third Circuit, affirmed the
judgment of the District Court granting Defendant's Motion to
Dismiss the case captioned PATRICIA R. BELTZ; JOSEPH S. SULLIVAN;
ANITA SULLIVAN, Individually and on behalf of all others
similarly situated, and derivatively on behalf of nominal
defendant Erie Insurance Exchange, Appellants, v. ERIE INDEMNITY
COMPANY; KAJ AHLMANN; JOHN T. BAILY; SAMUEL P. BLACK, III; J.
RALPH BORNEMAN, JR.; TERRENCE W. CAVANAUGH; WILSON C. COONEY;
LUANN DATESH; PATRICIA A. GOLDMAN; JONATHAN HIRT HAGEN; THOMAS B.
HAGEN; C. SCOTT HARTZ. SAMUEL P. KATZ. GWENDOLYN KING; CLAUDE C.
LILLY, III; MARTIN J. LIPPERT; GEORGE R. LUCORE; JEFFREY A.
LUDROF; EDMUND J. MEHL; HENRY N. NASSAU; THOMAS W. PALMER; MARTIN
P. SHEFFIELD; SETH E. SCHONFIELD; RICHARD L. STOVER; JAN R. VAN
GORDER; ELIZABETH A. HIRT VORSHECK; HARRY H. WEIL; ROBERT C.
WILBURN; ERIE INSURANCE EXCHANGE, Nominal Defendant, No. 17-2774
(3rd Cir.).
The appeal comes to the Third Circuit from an order of the
District Court that dismissed state law claims filed by a
putative class of subscribers of Erie Insurance Exchange (the
Exchange).
The Plaintiffs sued Indemnity and more than two dozen of its
current and former directors in the United States District Court
for the Western District of Pennsylvania asserting direct claims
for breach of the Subscriber's Agreement, breach of fiduciary
duty, and conversion, along with derivative claims on behalf of
the Exchange for conversion, breach of fiduciary duty, and unjust
enrichment. The District Court dismissed the complaint for
failure to state a claim, and the Plaintiffs filed this appeal.
The Plaintiffs raise two points in response, neither of which
persuades the Third Circuit to reach the merits or the timeliness
of their fiduciary duty claims. First, they cite to four places
in the record they contend adequately presented their failure of
oversight argument to the District Court. Two of those citations
are to allegations in the complaint rather than to arguments made
in opposing dismissal. The other two citations are isolated
references to the Board having authorized and/or tacitly approved
a particular action.
Particularly when compared to the overwhelming emphasis the
Plaintiffs put on their affirmative acts theory, those
unexplained references were not enough to preserve a failed-
oversight argument, the Third Circuit holds.
The Plaintiffs' second argument that the Court should decline to
enforce their forfeiture because at the motion-to-dismiss stage
the parties have not invested energy in discovery tailored to one
legal theory or another is equally unavailing. While the
Plaintiffs are correct that ensuring the necessary evidentiary
development is one purpose of the appellate waiver rule, the rule
also promotes the finality of judgments and conserves judicial
resources by preventing district courts from being reversed on
grounds that were never urged or argued before them.
The Third Circuit declines to excuse the forfeiture to allow
Plaintiffs to raise an argument that is nearly the opposite of
the one they made in the District Court.
Accordingly, the Third Circuit will affirm the judgment of the
District Court.
A full-text copy of the Third Circuit's May 10, 2018 Opinion is
available at https://tinyurl.com/ycn5rt3x from Leagle.com.
FACEBOOK INC: Sternemann Hits Illegal Collection of Personal Data
-----------------------------------------------------------------
Nicole Sternemann and Phyllis Sternemann, individually and on
behalf of all others similarly situated, Plaintiffs, v. Facebook,
Inc., Defendants, Case No. 18-cv-02677, (N.D. Cal., May 7, 2018),
seeks declaratory and injunctive relief and compensatory damages
resulting from breach of contract, intrusion into private affairs
and violation of California's Unfair Competition Law, Unfair
Competition Law, Consumer Legal Remedies Act, the California
Penal Code and New York State General Business Law.
In the Android versions of Facebook's mobile application,
Facebook has accumulated and stored information including
accessing users' call and text histories, metadata such as the
names and phone numbers of persons contacted, the times of such
contacts and the lengths of such contacts, says the complaint.
Facebook Inc. is a publically-traded social media company with
its headquarters and principal place of business in Menlo Park,
California.
Sternemann bought a SAMSUNG-SM-G890A cellular phone with a
Facebook application. She has set the privacy levels of her
account so that no one can see her birth year or phone number,
only friends can see posts; and only friends of friends can send
friend requests. She has never given permission for anyone to use
or see the information from her phone, nor has she ever been
asked by Defendant or any other person or company for such
permission. [BN]
Plaintiff is represented by:
Kevin F. Ruf, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310)201-9150
Facsimile: (310)201-9150
Email: kevinruf@gmail.com
- and -
Brian Murray, Esq.
GLANCY BINKOW & GOLDBERG LLP
77 Water Street, 7th Floor
New York, NY 10015
Telephone: (646) 722-4180
Email: bmurray@glancylaw.com
- and -
Paul C. Whalen, Esq.
LAW OFFICE OF PAUL C. WHALEN, P.C.
768 Plandome Road
Manhasset, NY 11030
Telephone: (516) 426-6870
Facsimile: (212) 658-9685
Email: paul@paulwhalen.com
- and -
Jasper D. Ward IV, Esq.
JONES WARD PLC
The Pointe
1205 E. Washington St., Suite 111
Louisville, KY 40206
Tel. (502) 882-6000
Fax (502) 587-2007
Email: jasper@jonesward.com
FCA US: Court Grants Summary Judgment in "Victorino"
----------------------------------------------------
The United States District Court for the Southern District of
California granted Defendant's Motion to Dismiss the case
captioned CARLOS VICTORINO and ADAM TAVITIAN, individually, and
on behalf of other members of the general public similarly
situated, Plaintiffs, v. FCA US LLC, a Delaware limited liability
company, Defendant, Case No. 16cv1617-GPC(JLB)(S.D. Cal.).
Plaintiffs Carlos Victorino and Adam Tavitian filed a putative
first amended class action complaint based on defects in the
2013-2016 Dodge Dart vehicles equipped with a Fiat C635 manual
transmission that cause their vehicles' clutches to fail and
stick to the floor. The Plaintiffs claim the "clutch pedal loses
pressure, sticks to the floor, and fails to engage/disengage
gears. As a result, the Class Vehicles exhibit stalling, failure
to accelerate, and premature failure of the Clutch System's
components, including the clutch master cylinder ("CMC") and
reservoir hose, clutch slave cylinder ("CSC") and release
bearing, clutch disc, pressure plate, and flywheel (the "clutch
defect")."
The Plaintiffs alleged five causes of action for violations of
California's Consumer Legal Remedies Act (CLRA), California's
unfair competition law (UCL), breach of implied warranty pursuant
to Song-Beverly Consumer Warranty Act, breach of implied warranty
pursuant to the Magnuson-Moss Warranty Act, and unjust
enrichment.
In the Court's order on summary judgment, it granted the motion
on the CLRA and UCL causes of action because the Plaintiffs
failed to demonstrate a genuine issue of material fact that the
Defendant knew or should have known about the alleged defects
concerning the swelling of the CSC's seal caused by the leaching
plasticizer and the two-piece composition of the CSC. However,
with regards to the alleged defect of leaching plasticizer from
the reservoir hose affecting the seals of the CMC, FCA
acknowledged it had knowledge of this defect in October 2013.
Therefore, because Victorino purchased his vehicle on March 22,
2014, the Court denied summary judgment as to Victorino. The
Court also denied the Defendant's motion for summary judgment on
the breach of implied warranty of merchantability under state and
federal law and granted the Defendant's motion for summary
judgment on the unjust enrichment claim as to Tavitian but not
Victorino's claims concerning the defect in the CMC and reservoir
hose.
The Defendant moves to reconsider the Court's order because new
evidence discovered during a repair of Victorino's vehicle's
clutch refutes the sole remaining basis for his UCL, CLRA and
unjust enrichment claims based on an alleged defect related to
the clutch master cylinder and reservoir hose involving leaching
plasticizer and seal swelling.
The Defendant presents new evidence that its technician noted
that Victorino's CMC and reservoir hose were never replaced and
that there were no signs that the CMC was failing or any signs of
leaching plasticizer in any clutch component. Moreover, the
Plaintiff's expert, Mr. Stapleton testified he never inspected
Victorino's vehicle and never saw any of the components of his
vehicle.
The Plaintiffs argue that Victorino still continues to experience
clutch problems of feeling soft or loose; however, they have not
presented any specific evidence that Victorino's CMC and
reservoir hose have a defect based on contamination due to
leaching plasticizer. They do not dispute that Victorino has not
yet had his CMC or reservoir hose replaced at 78,647 miles. Mr.
Stapleton's opinion is not supportive because he addressed the
CSC and not the CMC of Victorino's vehicle. Interestingly, Mr.
Stapleton never inspected Victorino's vehicle.
Once the Defendant bears the initial burden on summary judgment
showing it is entitled to judgment as a matter of law, the
Plaintiff must affirmatively demonstrate by specific facts that
there are triable issues of fact. The Court finds that the
Plaintiffs have failed to present specific facts demonstrating
there is a defect in the CMC and reservoir hose caused by
leaching plasticizer in Victorino's vehicle.
Therefore, the Court grants the Defendant's motion for
reconsideration and grants summary judgment on the remaining
CLRA, UCL and unjust enrichment causes of action as to Victorino.
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/ycfmrjos from Leagle.com.
Carlos Victorino, individually, and on behalf of a class of
similarly situated individuals & Adam Tavitian, individually, and
on behalf of a class of similarly situated individuals,
Plaintiffs, represented by Cody R. Padgett --
Cody.Padgett@CapstoneLawyers -- Capstone Law APC, Jordan L. Lurie
-- Jordan.Lurie@CapstoneLawyers.com -- Capstone Law, APC, Karen
Lynn Wallace -- Karen.Wallace@capstonelawyers.com -- Capstone Law
APC, Robert Kenneth Friedl -- Robert.Friedl@capstonelawyers.com -
- Capstone Law APC & Tarek H. Zohdy --
Tarek.Zohdy@capstonelawyers.com -- Capstone Law APC.
FCA US LLC, a Delaware limited liability company, Defendant,
represented by Kathleen Ann Wisniewski --
kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac
vice, Scott H. Morgan -- smorgan@thompsoncoburn.com -- Thompson
Coburn LLP, pro hac vice, Stephen Anthony D'Aunoy --
sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice,
Thomas L. Azar, Jr., Thompson Coburn LLP, pro hac vice, William
M. Low, Higgs Fletcher & Mack LLP & Edwin Mendelson Boniske,
Higgs Fletcher & Mack, LLP, 401 West A Street, Suite 2600, San
Diego, CA 92101-7910
FLEX LTD: Kipling Sues Over Share Price Drop
--------------------------------------------
David Kipling, on behalf of himself and all others similarly
situated, Plaintiff, v. Flex Ltd., Michael M. McNamara and
Christopher E. Collier, Defendants, Case No. 18-cv-02706 (N.D.
Cal., May 8, 2018), seeks to recover compensable damages caused
by violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5.
Flex provides design, engineering, manufacturing, and supply
chain services and solutions. On April 26, 2018, Flex issued a
press release disclosing that an employee improperly accounted
for obligations in a customer contract and certain related
reserves. On this news Flex's share price fell $3.61 per share,
or more than 21%, on unusually high trading volume, to close at
$13.03 per share on April 27, 2018. Flex failed to disclose that
it had material weaknesses in its operations and internal
controls making their financial statements and business,
operations and prospects questionable. [BN]
Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
Email: lportnoy@glancylaw.com
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
Telephone: (215) 638-4847
Facsimile: (215) 638-4867
FORT WAYNE, IN: Homeless Individuals Unable to Satisfy Numerosity
-----------------------------------------------------------------
The United States District Court for the Northern District of
Indiana, Fort Wayne Division, denied Plaintiffs' First Amended
Motion for Class Certification in the case captioned KEITH SEE,
individually and on behalf of all others similarly situated,
Plaintiff, v. CITY OF FORT WAYNE, in its official capacity
Defendant, Case No. 1:16-CV-105-TLS (N.D. Ind.).
The Plaintiff alleges that the Defendant conducted raids knowing
that the property seized belonged to homeless individuals who
were only temporarily absent from the site of their property.
The Plaintiff further declares that the Defendant has never
provided homeless individuals with an alternative location to
live or store personal property not subject to the Defendant's
policy. The Plaintiff hopes to prevent these raids, and has
brought this action on behalf of himself and all other similarly
situated as a member in the following proposed class:
All individuals residing in Fort Wayne, Indiana who are
homeless or without a fixed address possessing personal property
that may be left temporarily unattended and subject to the
seizure and destruction policy of the Defendant.
In this case, the Plaintiff makes conclusory allegations that
potentially hundreds, if not thousands, of individuals are
affected by the Defendant's policy as reflected in the record in
this case and their precise identities can be found upon further
discovering in this case. This is the Plaintiff's lone
allegation, unaccompanied by any evidentiary support, to show
numerosity.
The Plaintiff has the burden to satisfy the requirements in Rule
23 by a preponderance of the evidence, but here the Plaintiff has
not demonstrated how the record reflects that the number of
individuals affected by the Defendant's alleged policy is so
numerous as to make joinder impracticable. On the present
record, the Court cannot determine whether joinder of all members
of the class is impracticable. Therefore, the Plaintiff has not
satisfied Rule 23(a)(1).
Accordingly, the Court denies, with leave to refile, the
Plaintiff's First Amended Motion for Class Certification.
A full-text copy of the District Court's May 10, 2018 Opinion and
Order is available at https://tinyurl.com/y89c6u2w from
Leagle.com
Keith See, individually and on behalf of all others similarly
situated, Plaintiff, represented by Christopher C. Myers --
cmyers@myers-law.com -- Christopher C. Myers & Associates, Lori
W. Jansen, Christopher C. Myers & Associates & David W. Frank --
dfrank@myers-law.com -- Christopher C. Myers & Associates.
City of Fort Wayne, in its official capacity, Defendant,
represented by Carolyn M. Trier, Trier Law Office, PO Box 5528,
Fort Wayne, IN 46895-5528
FRANKLIN COLLECTION: Court Dismisses "Brunett" FDCPA Suit
---------------------------------------------------------
The United States District Court for the Eastern District of
Wisconsin granted Defendant's Motion to Dismiss the case
captioned DARLENE M. BRUNETT, Plaintiff, v. FRANKLIN COLLECTION
SERVICE INC., doing business as THE COLLECTION FIRM OF FRANKLIN
COLLECTION SERVICE INC., Defendant, Case No. 18-CV-163-JPS (E.D.
Wis.).
The Plaintiff sues the Defendant for sending her, and members of
the putative class, allegedly misleading debt collection letters.
The Plaintiff brings claims under various provisions of the Fair
Debt Collection Practices Act (FDCPA).
The Plaintiff contends that the Defendant impermissibly titles
itself THE COLLECTION FIRM OF FRANKLIN COLLECTION SERVICE, INC.,
where use of the word firm was intended to imply the involvement
of a law firm. The Court finds that not only is "firm" non-
exclusive to the legal profession, but the Letter makes no other
reference to a law firm. Instead, it identifies the Defendant as
a corporation and a debt collector. The Plaintiff's
interpretation of this portion of the Defendant's letter was also
specifically rejected more than five years ago in Pierson v.
Franklin Collection Serv., Inc., 965 F.Supp.2d 957, 965-66 (E.D.
Tenn. 2013).
The Court finds that the Plaintiff provides no authority which is
more persuasive than the line of cases addressing the Defendant's
own variations of the Letter. Indeed, she cites only one case,
and that opinion assumed without deciding that the letters before
it threatened litigation.
Courts in this Circuit and elsewhere hold that Section 1692f
cannot be used to address alleged collection misconduct which
forms the basis of a plaintiff's other claims. The Plaintiff did
not offer a meaningful response.
Accordingly, the Court must agree with the Defendant that
Plaintiff's Section 1692f claim lacks a factual basis independent
from her other claims. Count One will therefore be dismissed.
The Defendant's motion to dismiss must be granted.
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/ybab7lu9 from Leagle.com.
Darlene M Brunett, Plaintiff, represented by Ahmad T. Sulaiman,
Sulaiman Law Group Ltd, Mohammed O. Badwan, Sulaiman Law Group
Ltd, Nathan C. Volheim, Sulaiman Law Group Ltd, Omar T. Sulaiman,
Sulaiman Law Group Ltd & James C. Vlahakis, Sulaiman Law Group
Ltd.
Franklin Collection Service Inc, doing business as The Collection
Firm of Franklin Collection Service Inc., Defendant, represented
by David J. Hanus -- dhanus@hinshawlaw.com -- Hinshaw &
Culbertson LLP.
FUJITSU TECHNOLOGY: $14MM "Johnson" Settlement Has Final Approval
-----------------------------------------------------------------
In the case, JERRY JOHNSON, et al., Plaintiffs, v. FUJITSU
TECHNOLOGY AND BUSINESS OF AMERICA, INC., et al., Defendants,
Case No. 16-cv-03698-NC (N.D. Cal.), Judge Nathanael M. Cousins
of the U.S. District Court for the Northern District of
California granted both the Plaintiffs' unopposed motions (i) for
final approval of a proposed class action settlement; and (ii)
for attorneys' fees, litigation and administrative costs, and
class representative awards.
The litigation arises from alleged mismanagement of an employee
401(k) plan, in violation of the Employee Retirement Income
Security Act of 1974 ("ERISA"). The plan underlying the action
is the Fujitsu Group Defined Contribution and 401(k) Plan, and
the claims were brought against Fujitsu, the Fujitsu Group
Defined Contribution and 401(k) Plan Administrative Committee,
the Fujitsu Group Defined Contribution and 401(k) Plan Investment
Committee, Pete Apor, Belinda Bellamy, Sunita Bicchieri, and John
Does 1-30.
Plaintiffs Johnson, Jesse Perry, Yolanda Weir, Karen White, Todd
Salisbury, Peter Hitt, Patricia Collier, and Verlin Laine filed
their original class action complaint on June 30, 2016, on behalf
of themselves, the Plan, and participants and beneficiaries of
the Plan. The central allegation of the complaint was that
Defendants failed to control Plan costs, in violation of ERISA.
The Plaintiffs alleged that the Plan's high costs were the result
of imprudent actions and omissions, including: (1) utilizing
higher-cost share classes of funds rather than the least
expensive available share classes; (2) failing to monitor and
control the Plan's recordkeeping and administrative fees; (3)
selecting and retaining excessively costly investments for the
Plan lineup; and (4) imprudently selecting and retaining
underperforming investments in the Plan.
Based on these allegations, they asserted a claim for breach of
fiduciary duty under ERISA against all the Defendants, and a
claim for failure to monitor fiduciaries against Fujitsu and the
Plan's administrative committee. The Plaintiffs filed an amended
complaint on Nov. 7, 2016, adding additional factual details but
leaving unchanged the parties and causes of action.
The Defendants moved in two separate motions to dismiss the
amended complaint, both of which the Court denied. The parties
participated in two mediation sessions, the latter of which
resulted in a comprehensive settlement agreement that was fully
executed on Dec. 6, 2017.
The proposed settlement class is defined as all participants and
beneficiaries of the Fujitsu Group Defined Contribution and
401(k) Plan at any time on or after June 30, 2010 through Sept.
30, 2017, including any Beneficiary of a deceased person who was
a Participant in the Plan at any time during the Class Period,
and any Alternate Payees, in the case of a person subject to a
Qualified Domestic Relations Order who was a Participant in the
Plan at any time during the Class Period.
Under the settlement terms, $14 million was paid into a common
settlement fund for the benefit of a proposed settlement class.
The settlement fund is held in an interest-bearing escrow account
by an escrow agent. Upon Court approval, deductions will be made
from the gross $14 million common fund to pay for approved
attorneys' fees and costs, administrative expenses, and class
representative service awards.
The post-deduction net settlement amount will be paid to the
class members according to the settlement agreement's "Plan of
Allocation." Under the Plan of Allocation, each eligible class
member will be assigned a "Settlement Allocation Score," which
will be calculated by (1) determining the total balance of each
participant's 401(k) account at the end of each quarter during
the class period; and (2) crediting ten points for every dollar
in the account for those quarters through the third quarter of
2016, and one point for every dollar in the account from the
fourth quarter of 2016 through the end of the Class Period. Each
eligible class member's share of the net settlement amount will
be proportional to his or her Settlement Allocation Score
compared to the sum of all the class members' Settlement
Allocation Scores.
On Dec. 22, 2017, the Court issued an order (1) preliminarily
certifying the proposed certification class; (2) preliminarily
approving the settlement agreement; (3) scheduling a fairness
hearing for May 4, 2018; (4) appointing Analytics Consulting,
LLC, as the settlement administrator; and (5) directing
settlement notice to class members. The period for class members
to timely object to the settlement expired on April 6, 2018. As
of the May 4, 2018 final approval hearing no objections from the
class members were received.
Before the Court is Plaintiffs' unopposed motion for final
approval of a proposed class action settlement. Also before the
Court is their unopposed motion for attorneys' fees, litigation
and administrative costs, and class representative awards,
totaling $3,679,380.76. This amount would be deducted from the
$14 million settlement fund.
Weighing the strength of the claims against the risk of continued
litigation, Judge Cousins finds that the proposed settlement is
fair and reasonable. Accordingly, he certified the proposed
settlement class and granted the Plaintiffs' unopposed motion for
final approval of the class action settlement on the terms set
forth in the settlement agreement, as amended.
The Judge also granted the Plaintiffs' unopposed motion for
attorneys' fees and other expenses, to be paid from the net
settlement amount. He awarded $3.5 million in attorneys' fees;
$43,410.76 in out-of-pocket litigation expenses; $75,970 in
settlement administration expenses; and $60,000 in class
representative service awards. The total award is $3,679,380.76.
Within 30 days of the settlement administrator completing the
dispersal of funds to class members, the Plaintiffs must submit
to the Court a status report on: (1) the amount of money
dispersed and the amount of money left in the common fund; (2)
the number of class members that received a payment, and the
number that did not; and (3) any other updates that might assist
the Court in overseeing the fair and just administration of the
settlement.
A separate judgment will issue. The clerk of court is directed
to close the case.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/B2m3B8 from Leagle.com.
Jerry Johnson, as representatives of the class and on behalf of
Fujitsu Group Defined Contribution and 401K Plan, Jesse Perry, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan, Yolanda Weir, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan, Karen White, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan, Todd Salisbury, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan, Peter Hitt, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan & Verlin Laine, as
representatives of the class and on behalf of Fujitsu Group
Defined Contribution and 401K Plan, Plaintiffs, represented by
Brock J. Specht -- bspecht@nka.com -- Nichols Kaster, LLP, Carl
F. Engstrom -- cengstrom@nka.com -- Nichols Kaster PLLP, pro hac
vice, Jacob T. Schutz -- jschutz@nka.com -- Nichols Kaster PLLP,
pro hac vice, Kai Richter -- krichter@nka.com -- Nichols Kaster,
pro hac vice, Matthew C. Helland -- helland@nka.com -- Nichols
Kaster, LLP & Rebekah Lynn Bailey -- bailey@nka.com -- Nichols
Kaster.
Patricia Collier, as representatives of the class and on behalf
of Fujitsu Group Defined Contribution and 401K Plan, Plaintiff,
represented by Brock J. Specht, Nichols Kaster, LLP, pro hac
vice, Carl F. Engstrom, Nichols Kaster PLLP, pro hac vice, Jacob
T. Schutz, Nichols Kaster PLLP, pro hac vice, Kai Richter,
Nichols Kaster, pro hac vice, Matthew C. Helland, Nichols Kaster,
LLP & Rebekah Lynn Bailey, Nichols Kaster.
Fujitsu Technology and Business of America, Inc., itself and as
successor in interest to Fujitsu Management Services of America,
Inc., Fujitsu Group Defined Contribution and 401(k) Plan
Administrative Committee, Fujitsu Group Defined Contribution and
401(k) Plan Investment Committee, Pete Apor, Belinda Bellamy &
Sunita Bicchieri, Defendants, represented by John Desire
Giansello, III -- jgiansello@orrick.com -- Orrick Herrington
Sutcliffe LLP & Michael Delikat -- mdelikat@orrick.com -- Orrick
Herrington and Sutcliffe LLP, pro hac vice.
Shepherd Kaplan LLC, Defendant, represented by Christopher
Browne, pro hac vice, Roberta H. Kuehne --
roberta.kuehne@morganlewis.com -- Morgan Lewis & Bockius LLP,
Abbey McLean Glenn -- abbey.glenn@morganlewis.com -- Morgan,
Lewis and Bockius LLP, Brian Thomas Ortelere --
brian.ortelere@morganlewis.com -- Morgan Lewis Bockius LLP, pro
hac vice, Deborah Shannon Davidson --
deborah.davidson@morganlewis.com -- Morgan Lewis Bockius LLP &
Jeremy Paul Blumenfeld -- jeremy.blumenfeld@morganlewis.com --
Morgan Lewis Bockius LLP, pro hac vice.
FULTON STREET: Court Dismisses Suit Over Contaminated Beer
----------------------------------------------------------
Magistrate Judge Judith Gail Dein of the U.S. District Court for
the District of Massachusetts granted the Defendant's motion to
dismiss the case, SCOTT KAPLAN and JEFF ROACH, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
FULTON STREET BREWERY, LLC d/b/a Goose Island Beer Company,
Defendant, Civil Action No. 17-10227-JGD (D. Mass.).
Kaplan and Roach brought the action on behalf of themselves and
all others similarly situated against Goose Island. As alleged
in the complaint, the Plaintiffs each purchased several bottles
of specialty beer produced by the Defendant that contained a
bacteria, causing an "off flavor." The Plaintiffs allege that
although the Defendant acknowledged that certain batches of its
specialty beer were "off flavor" and created a refund program to
reimburse purchasers of that beer, the refund program was
underpublicized and available for an unreasonably short period of
time, leaving the Plaintiffs, and a purported class of other
purchasers of the beer, with worthless beer.
The Plaintiffs filed a class action complaint on Febr. 10, 2017
and a first amended class action complaint on May 5, 2017,
asserting subject matter jurisdiction pursuant to the Class
Action Fairness Act of 2005. The FAC purports to state claims
for breach of warranty of merchantability (Count I); violation of
Mass. Gen. Laws ch. 93A Section 2, "Breach of Warranty of
Merchantability" (Count II); violation of Mass. Gen. Laws ch. 93A
Section 2, "Unfair and Deceptive Notification and Recall" (Count
III); unjust enrichment (Count IV); and declaratory relief (Count
V).
The matter is before the Court on Goose Island's motion to
dismiss the Plaintiffs' claims for lack of subject matter
jurisdiction and failure to state a claim, brought pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It moves
to dismiss the First Amended Complaint, arguing that Kaplan and
Roach's claims are moot because Goose Island has unconditionally
offered all of the relief that the Plaintiffs seek and there is
no more relief that the Court could provide. It further argues
that as the Plaintiffs' individual claims are moot, the Court
lacks jurisdiction to hear their class action claims.
By their claims for breach of warranty of merchantability (Count
I), violations of ch. 93 (Counts II and III), and unjust
enrichment (Count IV), the Plaintiffs in the instant case are
seeking monetary relief for the affected beer that they
purchased, for the harm they experienced as a result of the
"unfair" refund program, for court costs and for attorneys fees.
The Defendant argues, and Magistrate Judge Dein court agrees,
that the Defendant's unconditional tender of checks to the
Plaintiffs mooted their claims for monetary relief.
To the extent that the Plaintiffs allege that they were injured
by the "unfair" refund program, the injury they allege is that
they were unable to fully participate in the refund program.
Thus, their claim for damages is equivalent to the value of the
beer for which they were unable to collect a refund, which is no
more than the value of the beer that they purchased. In
unconditionally tendering more than the maximum amount that the
Plaintiffs could recover under ch. 93A (treble damages), Goose
Island satisfied the Plaintiffs' claims under the legal theories
pled in Counts I-IV.
The Plaintiffs make two additional arguments as to why the checks
do not moot their claims. However, neither is persuasive, the
Magistrate Judge finds. First, the Plaintiffs characterize the
checks as an unaccepted settlement offer, arguing that rejected
settlement offers do not serve to moot claims. However, that
argument fails as the checks in the instant case were tendered to
them unconditionally, and thus do not represent a settlement
offer. Second, they argue that the collateral source rule
prevents defendant's checks from mooting plaintiffs' individual
claims for monetary relief because the checks were tendered by
Anheuser-Busch as opposed to Goose Island, which the Magistrate
Judge disagrees. It is clear from the Defendant's corporate
disclosure statement that Anheuser-Busch is not a source wholly
independent of and collateral to Goose Island.
Because the Plaintiffs do not satisfy Article III's requirement
of an imminent injury, their prayer for injunctive relief, if
stated, must be dismissed. To the extent that they seek to
assert the same claim for injunctive relief on behalf of their
alleged class, that claim fails too, because, in the class-action
context, at least one named plaintiff must meet the standing
requirements; a threat of future injury to other, unnamed members
of the class does not suffice." Here, where the Plaintiffs do
not have standing to seek their requested injunctive relief on
behalf of themselves, and there is no threat of future injuries
to others, their claim on behalf of other unnamed class members
must fail too for lack of jurisdiction.
She also finds that the Plaintiffs' individual claim for
declaratory relief fares no better. Their declaratory judgment
claim merely duplicates the other counts in their complaint and
thus is subject to dismissal. Adding a claim for declaratory
relief does not broaden the Plaintiffs' standing. Thus, the
Magistrate Judge concludes that the Court lacks jurisdiction to
hear any of the Plaintiffs' individual claims for relief. Their
efforts to pursue claims on behalf of other alleged class members
are equally unavailing.
Finally, there is no evidence of a comparable scheme in the case
where Goose Island voluntarily instituted a refund program before
suit was filed for beer that was produced on one occasion. The
Plaintiff has offered no evidence that Goose Island is likely to
produce more "contaminated" beer or that Goose Island has engaged
in a pattern and practice of tendering full relief to the named
Plaintiffs in putative class actions in related cases prior to
class certification as an effort to thwart judicial review.
Absent such evidence of either continuing wrongful behavior or
any nefarious plan to "pick off" the Plaintiffs to evade judicial
review, the ordinary principle that the settlement of individual
claims moots potential class action claims applies.
For all the reasons she detailed, Magistrate Judge Dein allowed
the Defendant's Motion to Dismiss.
A full-text copy of the Court's May 11, 2018 Memorandum of
Decision and Order is available at https://is.gd/cVb1vg from
Leagle.com.
Scott Kaplan, On Behalf of themself and All Others Similarly
Situated & Jeff Roach, on Behalf of themself and All Others
Similarly Situated, Plaintiffs, represented by Michael C. Forrest
-- mforrest@forrestlamothe.com -- Forrest, LaMothe, Mazoe,
McCullough, Yasi & Yasi & Robert E. Mazow, Mazow & McCullough.
Fulton Street Brewery, LLC, doing business as Goose Island Beer
Company, Defendant, represented by Hannah L. Preston --
hpreston@dowdbennett.com -- Dowd Bennett LLP, pro hac vice, James
F. Bennett -- jbennett@dowdbennett.com -- Dowd Bennett LLP, pro
hac vice, Kathleen M. Guilfoyle -- kguilfoyle@campbell-trial-
lawyers.com -- Campbell, Campbell, Edwards & Conroy, PC & Richard
P. Campbell -- rpcampbell@campbell-trial-lawyers.com -- Campbell,
Campbell, Edwards & Conroy, PC.
GACO WESTERN: Court Denies Request to Continue CMC in "Feamster"
----------------------------------------------------------------
The United States District Court for the Northern District of
California denied Parties' Request to Continue Case Management
Conference in the case captioned SCOTT FEAMSTER, on behalf of
himself and all others similarly situated, Plaintiffs, v. GACO
WESTERN, LLC, dba GACO WESTERN, A Limited Liability Company, And
DOES 1-100, Defendants, Case No. 4:cv-18-1327 HSG (N.D. Cal.).
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/y8wzct6q from Leagle.com.
Scott Feamster, on behalf of himself and all others similarly
situated, Plaintiff, represented by Sheri L. Kelly --
slk@sherikellylaw.com -- Law Office of Sheri L. Kelly.
Gaco Western, LLC, a Limited Liability Company, Defendant,
represented by Nicolas Peter Martin --
nick.martin@wilsonelser.com -- WILSON ELSER LLP.
GEORGIA: Ga. App. Partly Affirms Dismissal of "McConnell" Suit
--------------------------------------------------------------
Judge John J. Ellington of the Court of Appeals of Georgia for
the Fourth Division affirmed in part and reversed in part the
trial court's dismissal of the case, McCONNELL et al., v. GEORGIA
DEPARTMENT OF LABOR, Case No. A16A0655 (Ga. App.).
McConnell filed the class action against the Georgia Department
of Labor, alleging several tort claims in connection with the
Department's disclosure of personal information of McConnell and
the proposed class members. After a hearing, the Superior Court
of Cobb County granted the Department's motion to dismiss
McConnell's complaint for failure to state a claim upon which
relief can be granted.
The Supreme Court of Georgia granted a writ of certiorari to
consider, inter alia, whether the Court erred in not addressing
the trial court's holding that McConnell's tort claims were
barred by sovereign immunity, which is a jurisdictional issue,
before addressing the merits of those claims. The Supreme Court
held that the Court did err in this manner, vacated its decision,
and remanded with direction that it makes the threshold
determination of whether the trial court erred in its holding
that McConnell's claims are barred by sovereign immunity.
In his complaint, McConnell alleges that a Department employee,
while acting within the scope of his official duties or
employment, sent an email to approximately 1,000 Georgians who
had applied for unemployment benefits or other services
administered by the Department. The email included a spreadsheet
that listed the name, social security number, home phone number,
email address, and age of over 4,000 Georgians who had registered
for Department services, including McConnell. McConnell alleges
that the employee's conduct constituted the torts of negligently
disclosing personal information" as defined under Georgia law,
breach of fiduciary duty, and invasion of privacy (public
disclosure of private facts).
McConnell seeks economic damages, specifically, out-of-pocket
costs related to credit monitoring and identity protection
services and damages resulting from the adverse impact to his
credit score from the closing of accounts. In addition, he seeks
damages for the fear, upset, anxiety and injury to peace and
happiness related to the disclosure of his personal identifying
information, as the disclosure of personal identifying
information had provided all the raw material necessary to
facilitate the theft of his identity and unauthorized charges
upon his credit or bank accounts. He does not allege that an act
of identity theft has yet occurred.
McConnell contends that the trial court erred in holding that the
state has not waived its sovereign immunity pursuant to the
Georgia Tort Claims Act, OCGA Sections 50-21-20 through 50-21-37,
for the type of losses that he alleges in his claims.
Judge Ellington concludes that McConnell carried his burden of
showing that the trial court had subject matter jurisdiction over
his claims for negligently disclosing personal information,
breach of fiduciary duty, and invasion of privacy, which are tort
claims that are not excepted from the waiver of sovereign
immunity for tort claims pursuant to the Act, and which are based
on the conduct of state officers and employees while acting
within the scope of their official duties or employment.
Accordingly, the trial court erred in granting the Department's
motion to dismiss McConnell's claims on the basis of the bar of
sovereign immunity. The judgment is therefore reversed in
relevant part.
McConnell contends that the trial court erred in ruling that he
failed to state a claim for negligent disclosure of personal
information, based, inter alia, on its determination that as a
matter of law there is no legal duty under Georgia law to
safeguard personal information.
The Judge concludes that OCGA Section 10-1-393.8, which is part
of the Fair Business Practices Act of 1975 ("FBPA") as amended,
can not serve as the source of such a general duty to safeguard
and protect the personal information of another. As the trial
court noted in the appealed order, the FBPA expressly prohibits
intentionally communicating a person's social security number,
while McConnell alleges that the Department negligently
disseminated his SSN by failing to take the necessary precautions
required to safeguard and protect the personal information from
unauthorized disclosure. Although the FBPA imposes a standard of
conduct to refrain from intentionally and publicly posting or
displaying SSNs, a legal duty to refrain from doing something
intentionally is not equivalent to a duty to exercise a degree of
care to avoid doing something unintentionally, which falls within
the ambit of negligence. The trial court correctly concluded
that McConnell's complaint is premised on a duty of care to
safeguard personal information that has no source in Georgia
statutory law or caselaw and that his complaint therefore failed
to state a claim of negligence.
The Plaintiff contends that the trial court erred in dismissing
his breach of fiduciary duty claim for failure to state a claim
upon which relief can be granted based on its determination that
he had not shown that he had a particular relationship of trust
or mutual confidence with the Department. The Judge holds that
McConnell failed to identify any context, however, in which a
fiduciary relationship has been deemed to arise between a citizen
and an agency, based on a theory that the agency's status as a
gatekeeper for government benefits places the agency in a
position so as to exercise a controlling influence over the
citizen's interest. This argument fails.
Finally, McConnell contends that the trial court erred in ruling
that he failed to state a claim upon which relief can be granted
for invasion of privacy, public disclosure of private facts,
based, inter alia, on its determination that the elements of that
tort cannot be satisfied unless the facts at issue are
embarrassing private facts.
The Judge finds that the trial court properly dismissed the
Plaintiff's claim for invasion of privacy for failure to state a
claim for relief under Georgia law. Such allegation does not
fall within the causes of action for invasion of privacy because
there is no allegation that the Defendant (1) intruded into the
Plaintiff's seclusion, (2) disclosed embarrassing private facts,
(3) depicted the Plaintiff in a false light, or (4) appropriated
his name or likeness for the Defendant's own advantage.
For the reasons explained, Ellington concludes that the trial
court did err in so holding and reversed the judgment in relevant
part. Because the trial court did not err in dismissing
McConnell's complaint on the basis that it fails to state a claim
upon which relief can be granted, he affirmed the judgment in
part in this regard.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/XKzcqX from Leagle.com.
Jefferson Madden Allen -- jallen@ccealaw.com -- for Appellant.
Scott Alan Schweber -- scott@atl-lawyers.com -- for Appellant.
Christopher Michael Carr, for Appellee.
Samuel S. Olens -- samuel.olens@dentons.com -- for Appellee.
Kirsten Searle Daughdril, for Appellee.
Angela Ellen Cusimano, for Appellee.
GOOD SHEPHERD: Tex. App. Partly Affirms Dismissal of "Growden"
--------------------------------------------------------------
In the case, JESSICA GROWDEN, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, Appellant, v. GOOD SHEPHERD HEALTH
SYSTEM, THE GOOD SHEPHERD HOSPITAL, INC., AND GOOD SHEPHERD
MEDICAL CENTER, Appellees, Case No. 06-17-00093-CV (Tex. App.),
Judge Josh R. Morriss of the Court of Appeals of Texas for the
Sixth District, Texarkana, (i) reversed the trial court's
dismissal of Growden's class-action claims, including her claim
for attorney fees related to those claims; (ii) reversed the
trial court's dismissal of Growden's individual claim for
attorney fees; (iii) remanded the matter to the trial court for
further proceedings consistent with his Opinion; and (iv)
affirmed the trial court's judgment in all other respects.
When Growden took her minor daughter to the emergency room at
Good Shepherd Medical Center in Longview, she signed a form
contract that included a clause in which she acknowledged that
she was responsible for the total charges for services rendered.
About one month later, Growden received a statement from Good
Shepherd charging her $25,308.92 for her daughter's brief stay at
the emergency room and demanding that she pay the total amount
due within 30 days.
Feeling that those charges substantially exceeded the reasonable
value of the services provided, Growden, who was uninsured, filed
suit on behalf of herself, and others similarly situated, seeking
a declaratory judgment that Good Shepherd's contract permits it
to bill for, and to collect, only the reasonable value of the
treatment it provided, and that she and others similarly situated
are liable for only the reasonable value of the services provided
by Good Shepherd. After Good Shepherd unconditionally waived and
wrote off all of Growden's bill, and before a class was
certified, the trial court dismissed the suit for lack of
subject-matter jurisdiction.
In the appeal, Growden asserts that the trial court's dismissal
of her suit should be overturned because the trial court erred in
two ways: (A) ruling that her class-action claims were mooted by
Good Shepherd's unilateral act to resolve her individual
underlying claim and (B) not recognizing that her claim for
attorney fees under the Declaratory Judgments Act (the DJA)
survived the resolution of her individual underlying claim.
Judge Morris agreed. He reversed the trial court's judgment
dismissing Growden's class-action claims and her claim for
attorney fees and remand those claims to the trial court for
further proceedings. He reached these results because (1) the
mooting of Growden's individual underlying claims did not moot
her class-action claims and (2) Growden's claim for attorney fees
survived any mootness problem.
The Judge explained that in the case, Growden's timely filed
motion to certify was pending before the trial court when Good
Shepherd waived her medical bill. Although there is no
indication in the record that a hearing on the motion to certify
had been set, Good Shepherd waived the bill only after Growden
had sought discovery from it regarding her class claims and had
filed a motion to compel Good Shepherd to fully answer her
discovery requests. Further, although Good Shepherd claimed in a
letter brief to the trial court that it had made the decision to
waive Growden's bill only after unanswered attempts to work with
her to find alternative sources of funding, it submitted no
evidence supporting its claims or showing that the waiver of her
bills was the result of its standard operating procedures.
However, Growden submitted a copy of Good Shepherd's
Policy/Procedure regarding patient bills to the trial court,
attached to her reply letter brief. Under Section 5, entitled
"Bad Debt," the policy provides that self-pay balances that meet
certain criteria will be written off as bad debt and that the
"accounts will be placed with a collection agency for further
collection efforts." No provision under this section authorizes
the medical bill to be unconditionally waived, as happened in
this case. Therefore, it appears that Good Shepherd's waiver of
Growden's medical bill was not pursuant to any standard policy or
procedure, but rather a strategic, ad hoc decision unique to the
case. Consequently, the Judge said it is reasonable to infer
from this record that Good Shepherd's waiver of Growden's medical
bill was based on a litigation strategy employed by it in an
effort to dispose of this action.
Based on this record, and following well-established federal law,
he found that the picking-off exception to the mootness doctrine
applies in the case and that the trial court erred in dismissing
Growden's class-action claims.
Finally, Growden sought only declaratory relief and attorney fees
under the DJA. Although her individual substantive claims under
the DJA have become moot, her individual claim for attorney fees
under the DJA remains live. Even though Growden could not be a
prevailing party on her individual claims since declaratory
relief is not available, the trial court in its discretion may
determine that awarding her attorney fees would be equitable and
just, given that her underlying claims were mooted only after she
filed suit. Since Growden could still be awarded attorney fees
if the trial court found it would be equitable and just, her
claim for attorney fees could not be dismissed. Therefore, Judge
Morris found that Growden's individual claim for attorney fees
under the DJA should not have been dismissed.
A full-text copy of the Court's May 9, 2018 Opinion is available
at https://is.gd/UAO6Cm from Leagle.com.
Jarad Kent -- jkent@cr.law -- Jeffrey W. Ryan -- jryan@cr.law --
Michelle E. Robberson -- Michelle.Robberson@cooperscully.com --
for Good Shepherd Health System; The Good Shepherd Hospital,
Inc., and Good Shepherd Medical Center, Appellee.
Eric D. Pearson -- eric@hop-law.com -- James Craig Orr Jr. --
jim@hop-law.com -- for Jessica Growden, Appellant.
GREEN MOUNTAIN: "Cloer" Suit Alleges FLSA Violation
---------------------------------------------------
Tyler Cloer, Joseph Bergen-Gallipeau, Steven Dyer, David
Robinson, and Wesley Spearman, on behalf of themselves, and those
similarly situated v. Green Mountain Specialties Corp., Case No.
6:18-cv-00999 (M.D. Fla., June 25, 2018), is brought against the
Defendant for violation of the Fair Labor Standards Act.
The Plaintiffs are residents of Florida and are all former
employees of the Defendant who were performing services for the
Defendant as of at least January 2018.
The Defendant Green Mountain is a corporation conducting business
in Volusia County, Florida, with a principal address of 101 Wild
Horse Run, Deltona, Florida 32738. [BN]
The Plaintiffs are represented by:
Benjamin S. Briggs, Esq.
Trenton H. Cotney, Esq.
COTNEY CONSTRUCTION LAW, LLP
8621 E. Martin Luther King, Jr. Blvd.
Tampa, FL 33610
Tel: (813) 579-3278
Fax: (813) 902-7612
E-mail: tcotney@cotneycl.com
bbriggs@cotneycl.com
HANDY & HARMAN: Stockholder Suit Dismissed Against R. Frankfurt
---------------------------------------------------------------
Judge Barry Ostrager of the Supreme Court of the State of New
York, New York County, granted in part the pre-answer motion by
Defendants Steel Partners Holding LP ("SPLP") and Robert
Frankfurt to dismiss the case, IN RE HANDY & HARMAN LTD.
STOCKHOLDER LITIGATION, Docket No. 654747/2017, Motion Seq. No.
002 (N.Y. Sup.), pursuant to CPLR 3211.
The Plaintiffs in the putative class action are former
stockholders of Handy & Harman ("Company") who challenge the
Company's acquisition by its controlling stockholder, SPLP. SPLP
is a publicly traded global holding company that owns and
operates businesses and has investments in companies across
various industries. The Company, a Delaware corporation, is now
a wholly-owned subsidiary of SPLP.
Before a merger was effectuated in October 2017, SPLP and its
affiliates owned approximately 70% of the Company's outstanding
common stock. The Plaintiffs in the action represent a class of
minority stockholders who owned the balance of the Company's
common stock prior to the Merger. Defendant Frankfurt was a
member of the Company's seven-person Board of Directors from 2008
until the effective date of the Merger. Frankfurt and two other
directors served as the Special Committee that negotiated the
terms of the Merger.
SPLP presented the terms of the proposed Merger to the Company's
Board of Directors in March 2017. The Merger offer was
conditioned on both (i) approval by a Special Committee comprised
of independent directors; and (ii) approval by a majority of the
non-SPLP stockholders, commonly known as a "majority-of-the-
minority" ratification provision. In response to the offer, the
Company's Board formed a Special Committee consisting of three
directors, Frankfurt, Patrick A. DeMarco, and Garen W. Smith,
with Frankfurt as the Chair. The Special Committee retained
Graubard Miller as legal counsel and Duff & Phelps, LLC as
financial advisor to assist in the process.
Upon the completion of its process, the Special Committee
approved a deal whereby the non-SPLP shares of the Company would
be exchanged for 5,432,000 SPLP Preferred Units, valued at
approximately $128.3 million. On June 26, 2017, the Company
Board met and approved the terms proposed by the Special
Committee and then announced the execution of a Merger Agreement
by which SPLP would commence a tender offer to the Company's
minority stockholders, subject to acceptance by a majority of the
non-SPLP stockholders. Following some additional procedures,
SPLP and the Company consummated the Merger pursuant to the terms
of the Oct. 12, 2017 Merger Agreement.
However, before the Merger was consummated, the litigation was
commenced in July 2017 by Susan Paskowitz on behalf of Company
stockholders challenging the fairness of the Merger and alleging
that the Board and SPLP had breached their fiduciary duties to
minority stockholders by recommending the Merger and entering
into the Merger Agreement. In December, stockholders David Pill
and Alan R. Kahn commenced a second action under index number
657304/17. The two actions were consolidated for all purposes
under the captioned case and index number early this year.
Before the Court is a pre-answer motion by Defendants SPLP and
Frankfurt to dismiss the action pursuant to CPLR 3211. They
assert that they have established their right to dismissal of the
action based on the holding of the Supreme Court of Delaware in
Kahn v M & F Worldwide Corp. Determining "a question of first
impression," the M & F Court held that business judgment is the
standard of review that should govern mergers between a
controlling stockholder and its corporate subsidiary, where the
merger is conditioned ab initio upon both the approval of an
independent, adequately-empowered Special Committee that fulfills
its duty of care; and the uncoerced, informed vote of a majority
of the minority stockholders.
The Defendants further assert that the Complaint fails to allege
that the Special Committee violated its duty of care, as the
focus must be on the decision-making process, as opposed to the
merits of the decision, and the test is whether the directors
were "grossly negligent."
While the Complaint does allege within that cause of action a
breach of the "duty of loyalty, in addition to any attendant
breaches of the duties of care, good faith, fair dealing or
candor, Judge Ostrager finds that the specific allegations amount
to no more than the breach of fiduciary duty claim asserted
against the corporate Defendant. Frankfurt was at all times
acting within the scope of his duties as a director and Chair of
the Special Committee, and the Complaint lacks any specific
allegation that he somehow benefited personally from the Merger
or otherwise acted in bad faith.
While Frankfurt's non-disclosure of his personal relationship
with Lichtenstein of SPLP may be considered as part of the
Court's evaluation of the Merger, it did not rise to the level of
a breach of the duty of loyalty or bad faith so as to subject
Frankfurt to personal liability for his role on the Special
Committee negotiating the Merger. Thus, the motion to dismiss
claims against Defendant Frankfurt will be granted.
Accordingly, Judge Ostrager granted the Defendants' motion to
dismiss the action as to Defendant Frankfurt individually, and
the Clerk is directed to sever and dismiss the claims against
Frankfurt. He denied the motion to dismiss the claims against
Defendant SPLP. SPLP will efile an Answer by May 21, 2018 and
appear in Room 232 for a preliminary conference on May 29, 2018
at 9:30 a.m.
A full-text copy of the Court's May 9, 2018 Decision and Order is
available at https://is.gd/BcwHMM from Leagle.com.
HARBOUR CAPITAL: Class Certification in TCPA Suit Denied
--------------------------------------------------------
In the case, Menachem Raitport and Crown Kosher Meat Market,
Inc., Plaintiffs v. Harbour Capital Corporation, Defendant, Case
No. 09-cv-156-SM (D. N.H.), Judge Steven J. McAuliffe of the U.S.
District Court for the District of New Hampshire granted in part,
and denied in part Raitport's motion to lift the stay and denied
his motion for class certification.
In 2006, the FCC issued what has come to be known as the
"Solicited Fax Rule." That rule requires the sender of a
facsimile advertisement to include the statutory opt-out language
even when the fax is sent to a recipient that has provided prior
express invitation or permission to the sender.
Harbour Capital never filed a timely administrative challenge to
the Solicited Fax Rule with the FCC. So, says Raitport, the
Court's job is straightforward: unless and until the Court of
Appeals for the First Circuit (or the Supreme Court) invalidates
the Solicited Fax Rule in a proceeding arising out of a proper
administrative challenge to that rule, the Court is bound to
apply the rule as written.
The proposed class action arises out of Harbour Capital's
allegedly improper transmission of facsimile advertisements to
Raitport, in violation of the Telephone Consumer Protection Act
("TCPA") and FCC regulations promulgated pursuant to that
statute. According to the amended complaint, beginning on May 5,
2005, Harbour Capital sent well over 10,000 unsolicited fax
advertisements that failed to include the opt-out language
required by the TCPA. Then, more than a year later, beginning on
Aug. 1, 2006, Harbour Capital again sent well over 10,000
unsolicited and/or solicited fax advertisements that failed to
bear the required opt-out language.
By order dated Sept. 12, 2013, the Court stayed the action,
pending completion of collateral administrative proceedings
before the FCC likely to resolve critical questions of law
underlying the litigation.
Those administrative proceedings have been completed and,
accordingly, Raitport moves the Court to lift the stay. Raitport
also seeks leave to file a brief addressing whether, under the
Administrative Orders Review Act ("Hobbs Act"), the Court has
jurisdiction to follow a decision issued by the Court of Appeals
for the D.C. Circuit arising out of the FCC administrative
proceedings. He also seeks leave to amend his motion for class
certification to add a third subclass of the Plaintiffs. Also
pending before the Court is Raitport's motion for class
certification, which the parties have fully briefed.
Raitport seeks certification of a class and two subclasses:
a. Class A: All persons from Aug. 1, 2006 through the
present, to whom the Defendant transmitted or caused to be
transmitted a facsimile advertisement, advertising the commercial
availability or quality of any property, goods, or services of
Defendant, which contained an opt-out notice substantially
similar or identical to that contained on the facsimile
advertisements using a telephone facsimile machine, computer, or
other device.
b. Subclass 1: All persons to whom Defendant transmitted or
caused to be transmitted the facsimile advertisement on Oct. 4,
2006, using a telephone facsimile machine, computer, or other
device.
c. Subclass 2: All persons to whom Defendant transmitted or
caused to be transmitted the facsimile advertisement on Nov. 7,
2006, using a telephone facsimile machine, computer, or other
device.
The two proposed subclasses of the Plaintiffs that Raitport seeks
to certify do not distinguish between "solicited" and
"unsolicited" faxes. Instead, those subclasses include all
recipients of faxes sent by Harbour on or about two dates (Oct.
4, 2006 and Nov. 7, 2006). No distinction is drawn because,
according to the Amended Complaint (citing both the TCPA and the
Solicited Fax Rule), all fax advertisements sent by Harbour
Capital -- both solicited and unsolicited -- were required to
contained opt-out language.
And, says Raitport, although Harbour Capital's faxes did include
opt-out language, that language did not strictly comply with the
statutory requirements. Based upon Raitport's allegations and
the number of facsimile advertisements Harbour Capital reportedly
sent, Harbour Capital faces potential class action damages of
between roughly $15 and $45 million.
Judge McAuliffe explains that when, pursuant to 28 U.S.C. Section
2112, the Multidistrict Litigation Panel consolidated the
multiple challenges to the FCC's Solicited Fax Rule in the D.C.
Circuit Court of Appeals, that court became the sole forum for
addressing the validity of that rule. It's holding that the
Solicited Fax Rule is unlawful is binding upon the Court (and,
indeed, across the nation, unless and until the Supreme Court
holds otherwise -- something which, at least in this case, it has
declined to do). Raitport's suggestion to the contrary is
unavailing and it is undermined by substantial persuasive
precedent to the contrary.
Because the Solicited Fax Rule is inapplicable, Harbour Capital
was only required to include opt-out language on fax
advertisements that were "unsolicited," he finds. Faxes that
were sent by Harbour Capital to recipients who gave their
permission were not required to bear the opt-out language. The
fact that Raitport's original proposed class and two subclasses
fail to distinguish between those recipients who gave such
permission and those who did not, renders those proposed classes
unascertainable. Additionally, that precludes common questions
of fact from predominating.
Finally, there are similar problems with Raitport's proposal to
amend his motion for class certification to add a third subclass.
Given the passage of nearly a dozen years since the subject faxes
were sent, and in light of the fact that no records exist as to
which intended recipients of those faxes actually received them,
he finds such a subclass would be unascertainable and would not
meet the requirements of Rule 23.
For the foregoing reasons, Judge McAuliffe granted in part and
denied in part Raitport's Motion to Lift Stay. He granted it to
the extent that the stay previously entered by the court is
lifted. He denied it to the extent that Raitport seeks leave to
submit additional briefing. It is also denied to the extent
Raitport seeks leave to amend his motion for class certification
to add a third subclass. Finally, the Judge denied Raitport's
Motion for Class Certification.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/LwUkCt from Leagle.com.
Menachem Raitport, Plaintiff, represented by Aytan Y. Bellin --
aytan.bellin@bellinlaw.com -- Bellin & Associates LLC, pro hac
vice & Michael J. Sheehan -- msheehan@usa.net -- Sheehan Law
Office.
Crown Kosher Meat Market Inc., Plaintiff, represented by Aytan Y.
Bellin, Bellin & Associates LLC.
Harbour Capital Corporation, Defendant, represented by William E.
Christie, Shaheen & Gordon.
HITRONS SOLUTIONS: "Schwartz" Disputes Food Bag Biodegradability
----------------------------------------------------------------
Elimelech Schwartz, on behalf of himself and all others similarly
situated, Plaintiff, v. Hitrons Solutions, Inc., Defendant, Case
No. 18-cv-04062 (S.D. N.Y., May 7, 2018), seeks equitable and
injunctive relief, recovery of actual damages or statutory
damages for violation of New York General Business Law.
Hitrons Solutions Inc. sells plastic food storage bags it
advertises as biodegradable despite the fact that these do not
decompose within five years in landfills. [BN]
Plaintiff is represented by:
Mark Schlachet, Esq.
3515 Severn Road
Cleveland, OH 44118
Telephone: (216) 225-7559
Facsimile: (216) 932-5390
Email: markschlachet@me.com
INFINITY PROPERTY: "Rosenblatt" Seeks to Halt Kemper Merger
-----------------------------------------------------------
Jordan Rosenblatt, individually and on behalf of all others
similarly situated, Plaintiff, v. Infinity Property And Casualty
Corporation, James R. Gober, Glen N. Godwin, Victor Thomas Adamo,
Richard J. Bielen, Angela Brock-Kyle, Teresa A. Canida, Harold E.
Layman, E. Robert Meaney, James L. Weidner, Samuel J. Weinhoff
Kemper Corporation and Vulcan Sub, Inc., Defendants, Case No. 18-
cv-00315, (S.D. Ohio, May 7, 2018), seeks to enjoin defendants
and all persons acting in concert with them from proceeding with,
consummating, or closing the acquisition of Infinity Property and
Casualty Corporation by Kemper Corporation and its wholly-owned
subsidiary, Vulcan Sub, Inc., rescinding it and setting it aside
or awarding rescissory damages in the event defendants consummate
the merger, costs of this action, including reasonable allowance
for attorneys' and experts' fees and such other and further
relief under the Securities Exchange Act of 1934.
Each share of Infinity common stock will be cancelled and
converted into, at the election of the holder of such share,
subject to proration and adjustment as described in the Merger
Agreement, either mixed consideration consisting of $51.60 in
cash and 1.2019 shares of Kemper common stock, cash consideration
consisting of $129.00, or stock consideration consisting of
2.0031 shares of Kemper common stock. Pre-existing Kemper
stockholders and former Infinity shareholders would own
approximately 80% and 20% of the outstanding shares of Kemper
common stock, respectively.
The registration statement with the SEC in connection with the
merger omitted financial projections, as well as the valuation
analyses performed by the Company's financial advisor in
connection with the merger, Deutsche Bank Securities Inc., says
the complaint. It failed to disclose projected 2020 tangible book
value or goodwill, as used by Deutsche Bank in its analyses,
inputs and assumptions underlying the different sets of discount
rates calculated and used in the analyses, how Deutsche Bank
selected the terminal exit multiples that it applied to each
company's relevant projections and the perpetuity growth rates
implied by Deutsche Bank's analyses, the complaint adds.
Infinity provides insurance, through its subsidiaries, for
personal and commercial auto insurance primarily in four key
states, namely Arizona, California, Florida and Texas. [BN]
Plaintiff is represented by:
John C. Camillus, Esq.
LAW OFFICE OF JOHN C. CAMILLUS, LLC
P.O. Box 141410
Columbus, OH 43214
Tel: (614) 558-7254
Fax: (614) 559-6731
Email: jcamillus@camilluslaw.com
- and -
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
- and -
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
INSURANCE ADVOCATES: "Basile" Suit Alleges TCPA Violation
---------------------------------------------------------
Candy Basile, on behalf of herself and all others similarly
situated v. Insurance Advocates of America, LLC, Case No. 0:18-
cv-61443 (S.D. Fla., June 26, 2018), is brought against the
Defendant for violation of the Telephone Consumer Protection Act.
The Plaintiff Candy Basile is a resident of Niagara Falls, New
York and a citizen of the State of New York.
The Defendant Insurance Advocates of America, LLC fka Health
Pros, LLC is a Florida corporation with its principal place of
business at 12117 NW 59 Street, Coral Springs, Florida 33076.
[BN]
The Plaintiff is represented by:
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
2665 South Bayshore Drive, Suite 220
Miami, FL 33133
Tel: (305) 330-5512
Fax: (305) 676-9006
E-mail: scott@bursor.com
JEFFERSON COUNTY, NY: Court Denies Bid to Dismiss "Nourse" Suit
---------------------------------------------------------------
Judge Brenda K. Sannes of the U.S. District Court for the
Northern District of New York denied the Defendant's motion to
dismiss the case, BRAD NOURSE, both individually and on behalf of
a class of others similarly situated, Plaintiff, v. THE COUNTY OF
JEFFERSON, Defendant, Case No. 17-cv-0807 (BKS/DJS) (N.D. N.Y.).
The Plaintiff was arrested on July 21, 2014 in Leray, New York on
a bench warrant that had been issued after he missed a court
appearance related to an earlier charge of misdemeanor aggravated
unlicensed operation of a motor vehicle. He was arraigned at
Leray Town Court, assessed a bail amount of $500, and transported
to the Jefferson County Jail in Watertown.
At the time of Mr. Nourse's arrest, one of his friends was on the
way to the Town of Leray to post his bail. Immediately upon
arriving at the Jefferson County Jail, the Plaintiff was taken by
a Corrections Officer to a room, and ordered to take off all his
clothes. The Plaintiff objected to this procedure, indicated
that his friend was on the way to the jail to post his bail, and
asked to wait at the jail until his bail was posted. The
Corrections Officer declined to do this; he instructed the
Plaintiff to remove all his clothes bend at the waist and spread
the lobes of his buttocks to allow for visual inspection of the
outside of his anal cavity.
The Plaintiff was also required to manipulate his genitals to
allow for the inspection of the area underneath his scrotum. He
then put his civilian clothes back on, and shortly thereafter,
the $500 bail amount was posted, and the Plaintiff was released
from custody. Altogether, the Plaintiff was at the jail for
approximately 30 minutes. As a result of the strip search, the
Plaintiff has suffered and continues to suffer psychological
pain, humiliation, suffering and mental anguish.
The Plaintiff alleges that his experience at the Jefferson County
Jail is the result of a written and/or de facto policy, custom or
practice of immediately strip searching all individuals who enter
the custody of the Jefferson County Jail, regardless of the
nature of their charged crime and without providing them with a
reasonable opportunity to post bail. He further alleges that
strip searches are done regardless of a detainee's bail status,
their ability to post bail, or whether or not a bail payment is
forthcoming. Finally, the Plaintiff alleges that because
Jefferson County has a limited number of detentions per day and
adequate space in its jail booking room, detainees could be held
for a short period of time, e.g., up to four hours, in the jail
booking area (and separate from the general population of the
Jefferson County Jail), to allow them an opportunity to post bail
before having to be strip searched.
The Plaintiff brings the proposed class action under 42 U.S.C.
Section 1983 against the Defendant, alleging that his Fourth
Amendment right against unreasonable searches was violated when
he was strip searched during intake processing at the Jefferson
County Jail without being provided reasonable time to post bail.
The Defendant now moves to dismiss the Plaintiff's claim under
Federal Rule of Civil Procedure 12(b)(6). It argues that the
Complaint fails to state a claim for a Fourth Amendment violation
because the Supreme Court of the United States has upheld the
constitutionality of blanket strip/visual body cavity searches.
It therefore asserts that there is nothing unconstitutional about
the alleged policy of the County in strip/body cavity searching
the Plaintiff or the proposed class. The Plaintiff has opposed
the motion arguing that there is no legitimate penological need
to strip search detainees who can promptly post bail.
To the extent the Plaintiff asserts that the circumstances of his
case fall into an exception to the holding of Florence v. Bd. of
Chosen Freeholders of County of Burlington because he was held
without assignment to the general jail population and without
substantial contact with other detainees and did not ultimately
enter the general population, Judge Sannes disagrees. As Justice
Alito stated in his concurrence, the holding in Florence applies
to arrestees who are committed to the general population of a
jail.
Here, following his arraignment, the Plaintiff was not allowed to
stay in town court, and was instead transported to the jail,
where he was subject to the strip search policy. Lest there be
any confusion as to the timing of when an inmate may be
considered "committed" to general population, thus rendering such
a search constitutionally permissible, Justice Alito went on to
explain that "there are reasonable grounds for strip searching
arrestees before they are admitted to the general population of a
jail. Limiting a facility's ability to thoroughly search an
inmate to the time after he or she has been actually admitted to
the general population of the facility would defeat the purpose
of conducting such a search -- to prevent concealed contraband
from entering the general population of the facility.
The Plaintiff also asserts that this case presents "factual
nuances" that create a dispositive distinction to the
circumstances present in Florence -- namely that there was no
reasonable penological justification for a policy of immediately
strip searching detainees who can post bail. The Defendant, on
the other hand, asserts that the jail does not have the space to
segregate new detainees alone from the general population. Thus,
resolving the issue requires further development of the record
and consideration of facts outside of the complaint.
Accordingly, under the individual circumstances alleged,
dismissal of the Complaint would be premature at this early stage
of the case.
The Judge concludes that that the Complaint adequately states a
claim that the Plaintiff's Fourth Amendment rights were violated.
For these reasons, he denied the Defendant's motion to dismiss.
A full-text copy of the Court's May 11, 2018 Memorandum-Decision
and Order is available at https://is.gd/gAGOQ5 from Leagle.com.
Brad Nourse, both individually and on behalf of a class of others
similarly situated, Plaintiff, represented by Elmer R. Keach,
III, Law Offices of Elmer Robert Keach, III, P.C. & Maria K.
Dyson, Law Offices of Elmer Robert Keach, III, P.C.
County of Jefferson, Defendant, represented by Mitchell J. Katz -
- mkatz@menterlaw.com -- Menter, Rudin & Trivelpiece, P.C. &
Teresa M. Bennett -- tbennett@menterlaw.com -- Menter, Rudin &
Trivelpiece, P.C.
JOHNSON & JOHNSON: Can't Compel Arbitration in "Noye" FCRA Suit
---------------------------------------------------------------
In the case, T. JASON NOYE, individually and on behalf of all
others similarly situated, Plaintiffs, v. JOHNSON & JOHNSON, et
al., Defendants, Case No. 1:15-cv-2382 (M.D. Pa.), Judge Yvette
Kane of the U.S. District Court for the Middle District of
Pennsylvania denied J&J's renewed motion to compel arbitration
and dismiss or, in the alternative, stay all proceedings.
The Plaintiff initiated the action against Defendants J&J and
Kelly Services, Inc. on Dec. 11, 2015, alleging various
violations of the Federal Fair Credit Reporting Act ("FCRA"). On
Feb. 22, 2016, Kelly filed a motion to compel arbitration, and
J&J filed a motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) and to compel arbitration or, in
the alternative, stay all proceedings. On March 3, 2016, the
Court stayed the action pending disposition of both motions.
On Sept. 7, 2016, the Court denied both the Defendants' motions
without prejudice as to their right to refile the motions after
conducting arbitration-related discovery. It then ordered
arbitration-related discovery beginning on Sept. 7, 2016 and
lasting for 60 days. After the arbitration-related discovery
period concluded and the parties notified the Court of their
disagreement as to the results of the discovery, J&J filed the
instant renewed motion to compel arbitration and to dismiss or,
alternatively, to stay proceedings on Jan. 30, 2017. Kelly also
filed a renewed motion to compel arbitration on that date.
On Nov. 6, 2017, the Court issued a Memorandum and Order granting
Kelly's motion to compel arbitration. As to J&J's motion, the
Court ordered the parties to file additional briefing,
specifically addressing the issue of the applicability of the
theory of equitable estoppel to the motion in light of the Third
Circuit's recently-issued precedential opinion in White v.
Sunoco. In accordance with this Order, J&J filed a supplemental
brief in support of its renewed motion on Nov. 20, 2017, and the
Plaintiff filed a brief in opposition on Dec. 4, 2017. On Dec.
22, 2017, J&J filed a reply brief. The parties have submitted
briefs addressing the applicability of equitable estoppel to
J&J's motion following White.
Judge Kane concludes that equitable estoppel does not apply to
J&J's motion, and because the Plaintiff is not estopped from
avoiding arbitration, J&J's motion to compel arbitration will be
denied. First, the Judge notes that the requirements for
equitable estoppel, whether under Michigan law, Pennsylvania law,
or the approach recognized by the Third Circuit in E.I. DuPont de
Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates,
S.A.A., have not been satisfied. Even if she were to conclude
that a close relationship exists between J&J and Kelly for
purposes of the relevant analysis, equitable estoppel would not
apply because the Plaintiff's claims against J&J are not
intimately founded in and intertwined with the underlying
contract obligations.
In addition, the Judge concludes that granting J&J's alternative
request for a stay of proceedings between J&J and the Plaintiff,
pending the arbitration between Kelly and the Plaintiff, would be
improper. A stay may be appropriate even when the action
encompasses both arbitrable and non-arbitrable claims. However,
the Court must exercise caution in granting such a request, as
she has explained that the Plaintiff's claims against J&J are
sufficiently removed from those against Kelly so as to warrant a
denial of J&J's motion to compel arbitration, and staying
proceedings in this case could, therefore, contradict the effect
of such a denial.
Further, she concludes that in this instance, concerns as to
judicial economy and efficiency do not warrant a stay, in light
of the her conclusion that J&J cannot compel arbitration.
Accordingly, she will also deny J&J's motion with respect to its
request for a stay of proceedings pending arbitration between the
Plaintiff and Kelly.
Based on this, Judge Kane denied J&J's motion in its entirety. An
appropriate Order follows.
A full-text copy of the Court's May 11, 2018 Memorandum is
available at https://is.gd/Izc1Pl from Leagle.com.
T Jason Noye, individually and on behalf of all others similarly
situated, Plaintiff, represented by David A. Searles --
info@consumerlawfirm.com -- Francis & Mailman, P.C., James A.
Francis, Francis & Mailman, PC, John Soumilas, Francis & Mailman
PC, Marielle R. Macher -- mmacher@cjplaw.org -- Community Justice
Project & Megan Lovett -- mlovett@cjplaw.org -- Community Justice
Project.
Johnson & Johnson, Defendant, represented by Carolyn P. Short --
cshort@reedsmith.com -- Reed Smith LLP, pro hac vice, Michael C.
O'Neil -- michael.oneil@reedsmith.com -- Reed Smith LLP, pro hac
vice, Shannon E. McClure -- smcclure@reedsmith.com -- Reed Smith
LLP, pro hac vice, Francis X. Dee, McElroy Deutsch Mulvaney &
Carpenter, LLP & Valerie Eifert Brown, Reed Smith LLP.
Kelly Services, Inc., Defendant, represented by David J. Rowland
-- drowland@seyfarth.com -- Seyfarth Shaw LLP, pro hac vice,
Gerald L. Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw
LLP, Laura Jean Maechtlen -- lmaechtlen@seyfarth.com -- Seyfarth
Shaw LLP, Michael W. Stevens -- mwstevens@seyfarth.com --
Seyfarth Shaw LLP, Pamela Q. Devata -- pdevata@seyfarth.com --
Seyfarth Shaw LLP, pro hac vice, Shireen Yvette Wetmore --
shusain@seyfarth.com -- Seyfarth Shaw, LLP, Joseph W. Gibley --
jgibley@gibleylaw.com -- Gibley & McWilliams, P.C. & Speros John
Kokonos -- skokonos@gibleylaw.com -- Gibley and McWilliams, PC.
KAMCOR INC: Ct. Denies Conditional Class Cert in "Ortiz-Patino"
---------------------------------------------------------------
The United States District Court for the District of
Massachusetts denied the Motion for Conditional Certification of
Collective Action under the Fair Labor Standards Act (FLSA) in
the case captioned ALEJANDRO ORTIZ-PATINO, on behalf of himself
and all others similarly situated, Plaintiff, v. KAMCOR, INC,
MECHANICAL MAINTENANCE AND DESIGN, INC., and NICK S. BEAVER,
Defendants, Civil Action No. 17-cv-12400-ADB (D. Mass.).
The Plaintiff proposes certification of a class consisting of all
employees of Kamcor, Inc. and MMDI in the United States, to the
present, who worked as welders, pipefitters, shipfitters,
machinists, electricians, marine painters, and other skilled
laborers.
The Plaintiff seeks certification of a nationwide class, but the
affidavit does not provide any information as to the Defendants'
pay policies at locations other than Boston and Fairhaven,
Massachusetts. While it may be possible that the Defendants
employ the same pay policies nationwide, the affidavit does not
provide any reason to believe that this is true. Therefore,
given the absence of any information concerning workers and pay
policies at other locations, the Court is not able to certify a
nationwide class.
The Plaintiff's proposed class would include welders,
pipefitters, ship fitters, machinists, electricians, marine
painters, and other skilled laborers, but the Plaintiff's
affidavit does not provide a basis to conclude that individuals
working in these particular job categories were subject to the
same pay policies.
The Plaintiff's motion for conditional certification is denied
without prejudice.
A full-text copy of the District Court's May 10, 2018 Memorandum
and Order is available at https://tinyurl.com/y9d45qjn from
Leagle.com.
Alejandro Ortiz-Patino, on behalf of himself and all others
similarly situated, Plaintiff, represented by Shannon E. Liss-
Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C.
Kamcor, Inc, Mechanical Maintenance and Design, Inc. & Nick S.
Beaver, Defendants, represented by Jonathan R. Shank --
Jonathan.Shank@jacksonlewis.com -- Jackson Lewis PC.
KIMBERLY-CLARK CORP: 9th Cir. Reversed "Davidson" Dismissal
-----------------------------------------------------------
Judge Mary H. Murguia the U.S. Court of Appeals for the Ninth
Circuit reversed the dismissal with prejudice of the the case,
JENNIFER DAVIDSON, an individual on behalf of herself, the
general public and those similarly situated, Plaintiff-Appellant,
v. KIMBERLY-CLARK CORPORATION; KIMBERLY-CLARK WORLDWIDE, INC.;
KIMBERLY-CLARK GLOBAL SALES, LLC, Defendants-Appellees, Case No.
15-16173 (9th Cir.).
Davidson paid extra for wipes labeled as "flushable" because she
believed that flushable wipes would be better for the
environment, and more sanitary, than non-flushable wipes. She
alleges that the wipes she purchased, which were manufactured and
marketed by Kimberly-Clark Corporation, were not, in fact,
flushable.
Based on these allegations, Davidson brought four California
state law causes of action against Kimberly-Clark, including for
common law fraud and for violations of the Consumer Legal
Remedies Act ("CLRA"), False Advertising Law ("FAL"), California
Business & Professions Code Section 17500, and Unfair Competition
Law ("UCL"), California Business & Professions Code Section
17200.
Davidson sought restitution, injunctive relief, and actual,
punitive, and statutory damages on her CLRA claim; restitution
and injunctive relief on her FAL and UCL claims; and compensatory
and punitive damages on her common law fraud claim. She sought
to certify a class of all persons who purchased Cottonelle Wipes,
Scott Wipes, Huggies Wipes, and Kotex Wipes in California between
March 13, 2010 and the filing of the FAC on Sept. 5, 2014.
Davidson initially filed the case in state court, but Kimberly-
Clark removed it to federal court pursuant to the Class Action
Fairness Act. The district court denied in part and granted in
part Kimberly-Clark's motion to dismiss the original complaint.
In response, Davidson filed the operative First Amended
Complaint.
Kimberly-Clark moved to dismiss the FAC, and the district court
granted the motion, this time with prejudice. First, the
district court granted Kimberly-Clark's Federal Rule of Civil
Procedure 12(b)(1) motion to dismiss Davidson's injunctive relief
claims, finding that Davidson lacked standing to seek injunctive
relief because she was unlikely to purchase Kimberly-Clark's
flushable wipes in the future. Second, it granted Kimberly-
Clark's motion to dismiss the FAC pursuant to Rules 9(b) and
12(b)(6), concluding that Davidson had failed to adequately
allege why the representation "flushable" on the package was
false. Finally, it concluded that Davidson failed to allege
damage under the UCL/FAL/CLRA or common law fraud causes of
action, because Davidson had not alleged that she suffered any
harm due to her use of the Scott Wipes.
Davidson filed a motion for reconsideration under Rules 59(e) and
60(b), which the district court denied. First, the district
court rejected Davidson's argument that it should have remanded
the injunctive relief claims to state court. Second, it rejected
Davidson's argument that it should have dismissed the FAC without
prejudice so that Davidson could file a second amended complaint
curing the alleged defects in the FAC. Third, it rejected
Davidson's argument that the district court erred by ruling that
Davidson had not adequately pled damages. Davidson timely
appealed.
Davidson appeals six of the district court's rulings. First,
Davidson argues that the district court erred by dismissing the
FAC pursuant to Rule 9(b) for failure to adequately allege why
the representation "flushable" was false. Second, Davidson
argues that the district court erred by dismissing the FAC
pursuant to Rule 12(b)(6) on the basis that Davidson had not
suffered any damages. Third, Davidson argues that the district
court erred by dismissing the original complaint pursuant to Rule
12(b)(6) for failing to plead how she came to believe the wipes
were not flushable. Fourth, Davidson argues that the district
court abused its discretion in striking, pursuant to Rule 12(f),
references to newspaper reports in the original complaint.
Fifth, Davidson argues that the district court abused its
discretion by denying Davidson leave to amend her FAC. Finally,
Davidson argues that the district court erred by dismissing her
injunctive relief claims pursuant to Rule 12(b)(1) for lack of
standing.
Judge Murguia holds that the FAC adequately alleged that
Kimberly-Clark's use of the word "flushable" was false because
the Scott Wipes Davidson purchased did not disperse as a truly
flushable product would have. And because Davidson only needed
to allege an economic injury to state a claim for relief, and
because Davidson alleges that she paid a premium price for the
Scott Wipes, she has properly alleged that she was injured by
Kimberly-Clark's allegedly false advertising.
To the extent the district court dismissed the original complaint
because Davidson failed to allege facts showing how she came to
believe that the Scott Wipes were not "flushable," the Judge
finds that the district court erred. The Judge says she is aware
of no authority that specifically requires a plaintiff bringing a
consumer fraud claim to allege how she "came to believe" that the
product was misrepresented when, as in this case, all the Rule
9(b) considerations have been met.
Finally, the Judge holds that Davidson's allegation that she has
"no way of determining whether the representation "flushable" is
in fact true when she regularly visits stores where the
Defendants' "flushable" wipes are sold constitutes a threatened
injury that is certainly impending, thereby establishing Article
III standing to assert a claim for injunctive relief.
For these reasons, Judge Murguia reversed the district court's
dismissal with prejudice of the FAC and remanded for further
proceedings. The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on whether to
rehear the matter en banc. Judge Murguia and Judge Marsha S.
Berzon denied the petition for rehearing en banc, and Judge Jon
Phipps McCalla so recommended. No further petitions for
rehearing or rehearing en banc will be entertained in the case.
A full-text copy of the Ninth Circuit's May 9, 2018 Order is
available at https://is.gd/IOEA6b from Leagle.com.
Matthew T. McCrary -- marie@gutridesafier.com -- (argued),
Kristen G. Simplicio -- kristen@gutridesafier.com -- Seth A.
Safier -- seth@gutridesafier.com -- and Adam J. Gutride --
adam@gutridesafier.com -- Gutride Safier LLP, San Francisco,
California, for Plaintiff-Appellant.
Constantine L. Trela, Jr. -- CTRELA@SIDLEY.COM -- (argued),
Sidley Austin LLP, Chicago, Illinois; Michelle Goodman --
mrgoodman@jonesday.com -- and Amy Lally -- alally@sidley.com --
Sidley Austin LLP, Los Angeles, California; Naomi Igra --
nigra@sidley.com -- Sidley Austin LLP, San Francisco, California;
William R. Levi -- WLEVI@SIDLEY.COM -- Eamon P. Joyce --
EJOYCE@SIDLEY.COM -- and Kwaku A. Akowuah -- KAKOWUAH@SIDLEY.COM
-- Sidley Austin LLP, Washington, D.C.; for Defendants-Appellees.
Anton Metlitsky -- ametlitsky@omm.com -- O'Melveny & Myers LLP,
New York, New York; Deanna M. Rice -- derice@omm.com -- O'Melveny
& Myers LLP, Washington, D.C.; Janet Galeria and Warren Postman,
U.S. Chamber Litigation Center Inc., Washington, D.C.; Leland P.
Frost -- manufacturing@nam.org -- Quentin Riegel, and Linda E.
Kelly, Manufacturers' Center for Legal Action, Washington, D.C.;
Karin F.R. Moore, Grocery Manufacturers Association, Washington,
D.C.; for Amici Curiae Chamber of Commerce of the United States
of America, National Association of Manufacturers, and Grocery
Manufacturers Association.
KINGS HARBOR: Pre-Class Cert Discovery Needed in "Gibbs"
--------------------------------------------------------
The Appellate Division of the Supreme Court of New York, First
Department, affirmed the Supreme Court's judgment denying
Plaintiffs' Motion for Pre-Class Certification Discovery in the
case captioned MARY GIBBS, ETC., ET AL., Plaintiffs-Appellants,
v. KINGS HARBOR HEALTH SERVICES LLC, DOING BUSINESS AS KINGS
HARBOR MULTICARE CENTER, Defendant-Respondent, 6520 (N.Y. Super.
App.).
The N.Y. App. Div. concludes that at this juncture, as the
plaintiffs have failed to satisfy CPLR 901(a)(2), requiring them
to show that there are questions of law or fact common to the
class which predominate over any questions affecting only
individual members, further pre-class certification discovery is
necessary.
A full-text copy of the N.Y. App. Div.'s May 10, 2018 Opinion is
available at https://tinyurl.com/y9bdsh6f from Leagle.com.
Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, (D. Greg
Blankinship -- gblankinship@fbfglaw.com -- of counsel), for
appellants.
Mauro Lilling NaParty LLP, (Seth M. Weinberg of counsel), for
respondent.
LEGACY RESERVES: Settles Class Action Lawsuits with Unitholders
---------------------------------------------------------------
Legacy Reserves LP has entered into a Stipulation and Agreement
of Settlement to settle the previously disclosed putative class
action lawsuits in the Delaware Chancery Court captioned In re
Legacy Reserves LP Preferred Unitholder Litigation, C.A. No.
2018-0225-VCL by granting holders of the 8% Series A Preferred
Units and 8% Series B Preferred Units approximately 27.6 million
shares of common stock of Legacy Reserves Inc. ("New Legacy").
The Court has entered a scheduling order, which sets Sept. 12,
2018 as the date for the fairness hearing, at which the parties
will request final approval of the Settlement Agreement.
Legacy anticipates soon filing with the Securities and Exchange
Commission an amendment to the registration statement on Form S-
4, which includes a proxy statement of Legacy and a preliminary
prospectus of New Legacy. Legacy anticipates holding the special
meeting of unitholders to approve the Transaction and
subsequently closing the Transaction in late Sept. 2018.
Following the closing of the Transaction, the common stock of New
Legacy will trade on NASDAQ under the symbol "LGCY", the symbol
under which the units of Legacy currently trade.
On March 23, 2018, Legacy Reserves LP entered into an Agreement
and Plan of Merger, by and among the Partnership, Legacy Reserves
GP, LLC, and the general partner of the Partnership, Legacy
Reserves Inc., a wholly owned subsidiary of the General Partner
("New Legacy"), and Legacy Reserves Merger Sub LLC, a wholly
owned subsidiary of New Legacy ("Merger Sub"), pursuant to which
Merger Sub will be merged with and into the Partnership, with the
Partnership continuing as the surviving entity and as a wholly
owned subsidiary of New Legacy.
Stipulation and Agreement of Settlement
On March 28, 2018, a holder of the 8% Series A Fixed-to-Floating
Rate Cumulative Redeemable Perpetual Preferred Units of the
Partnership and the 8% Series B Fixed-to-Floating Rate Cumulative
Redeemable Perpetual Preferred Units of the Partnership filed a
putative class action challenging the Merger against the
Partnership, the General Partner and New Legacy in the Court of
Chancery of the State of Delaware. The initial complaint in the
Doppelt Action contained two causes of action challenging the
Merger, including breach of the Fifth Amended and Restated
Agreement of Limited Partnership of the Partnership and breach of
the implied covenant of good faith and fair dealing. The
plaintiff in the Doppelt Action sought injunctive relief
prohibiting consummation of the Merger or, in the event the
Merger is consummated, rescission or rescissory damages, as well
as reasonable attorneys' and experts' fees and expenses. On
April 4, 2018, a motion to expedite was filed in connection with
the Doppelt Action, by which the plaintiff sought a hearing on a
motion for a preliminary injunction prior to the close of the
Merger and requested that the Court set an expedited discovery
schedule prior to any such hearing. The plaintiff in the Doppelt
Action also filed a lawsuit against the Partnership and the
General Partner in 2017 for breach of the Partnership Agreement
based on the treatment of the accrued but unpaid preferred
distributions as "guaranteed payments" for tax purposes.
A second putative class action lawsuit challenging the Merger was
filed in the Court on April 3, 2018 against the Partnership, the
General Partner and New Legacy. The Chammah Ventures Action
contained the same causes of action and sought substantially the
same relief as the Doppelt Action.
On April 13, 2018, the Court issued an order consolidating the
Doppelt Action and Chammah Ventures Action and appointing the
plaintiff in the Doppelt Action as lead plaintiff and his counsel
as lead counsel for the putative class action. On April 13,
2018, the Court also granted the motion to expedite the
Consolidated Action. On April 23, 2018, the plaintiff in the
Consolidated Action filed an amended complaint, adding an
additional count for breach of the Partnership Agreement. A
hearing on the plaintiff's motion for a preliminary injunction
and the Partnership's motion to dismiss occurred on June 4, 2018.
On June 22, 2018, the Partnership, New Legacy, the General
Partner and the plaintiff in the Consolidated Action reached an
agreement in principle to settle the Consolidated Action. The
parties submitted a stipulation and agreement of settlement to
the Court on July 6, 2018 and, on July 11, 2018, the Court
entered a scheduling order for consideration of the Settlement
Agreement. The Scheduling Order sets Sept. 12, 2018 as the date
for the hearing at which the Court will consider (i) the fairness
of the Settlement Agreement; (ii) whether a judgment should be
entered dismissing the Consolidated Action with prejudice; (iii)
the plaintiff's counsel's application for fees and expenses; and
(iv) any objections to the Settlement Agreement. The Settlement
Agreement, if approved by the Court, will grant holders of Series
A Preferred Units and Series B Preferred Units approximately
10,730,000 shares of common stock in New Legacy in addition to
the approximately 16,913,592 shares those holders would
collectively receive pursuant to the exchange ratios that were
included in the Initial Merger Agreement. In exchange, the class
of holders of Preferred Units (dating back to Jan. 21, 2016
through the consummation of the Merger) have agreed to release
the Partnership, the General Partner and New Legacy, and any of
their parent entities, controlling persons, associates,
affiliates, including any person or entity owning, directly or
indirectly, any portion of the Partnership GP, or subsidiaries
and each and all of their respective officers, directors,
stockholders, employees, representatives, advisors, consultants
and other released parties, from liability for any claims related
to or arising out of the rights inhering to the Preferred Units
(subject to limited exceptions related to tax liabilities),
including all claims brought in the Consolidated Action. As part
of the Settlement Agreement, the Doppelt Tax Action will be
dismissed. Each of the administrative agent for the Third
Amended and Restated Credit Agreement, among the Partnership, as
borrower, Wells Fargo Bank, National Association, as
administrative agent, and the lenders party thereto, dated as of
April 1, 2014, and the majority lenders under the Term Loan
Credit Agreement, among the Partnership, as borrower, Cortland
Capital Market Services LLC, as administrative agent and the
lenders, dated as of Oct. 25, 2016, have consented to the terms
of the Settlement Agreement, as required pursuant to the terms of
the Revolving Credit Agreement and the Term Loan Credit
Agreement, respectively.
A third putative class action lawsuit challenging the Merger was
filed against the Partnership, the General Partner, New Legacy
and Merger Sub on April 27, 2018 by Patrick Irish in the District
Court in Midland County, Texas. The Irish Action contains the
same general causes of action as the initial complaint filed in
the Doppelt Action and the Chammah Ventures Action and seeks the
same relief. The Partnership, the General Partner, New Legacy
and the plaintiff's counsel in the Consolidated Action have
agreed to coordinate efforts to obtain a dismissal of the Irish
Action following the consummation of the Merger.
In connection with the Settlement Agreement, the Partnership has
agreed to pay up to $5.7 million for fees and expenses to counsel
for the plaintiff, and the plaintiff's counsel has agreed not to
request more than such amount in its fee application to the
Court. This payment will be paid for with proceeds from the
Partnership's insurance policy. The Settlement Agreement,
including the plaintiff's counsel's request for fees and
expenses, is subject to approval by the Court. The Settlement
Agreement provides for a period of time during which class
members will be notified of the settlement and given an
opportunity to object to the terms of the Settlement Agreement.
Pursuant to the terms of the Settlement Agreement, the class
would be certified as a non-opt out class, meaning that all
holders of Preferred Units would be bound by the terms of the
Settlement Agreement if approved by the Court.
Amended and Restated Merger Agreement
On July 9, 2018, New Legacy, the Partnership, the General Partner
and Merger Sub entered into an Amended and Restated Agreement and
Plan of Merger. The A&R Merger Agreement incorporates the
previously disclosed terms and conditions of the Initial Merger
Agreement.
The A&R Merger Agreement provides that (i) with respect to the
Series A Preferred Units, each Series A Preferred Unit will be
converted into the right to receive 2.92033118 shares of common
stock in New Legacy (for a total of approximately 6,716,762
shares of common stock of New Legacy for the 2,300,000 Series A
Preferred Units outstanding), (ii) with respect to the Series B
Preferred Units, each Series B Preferred Unit will be converted
into the right to receive 2.90650421 shares of common stock in
New Legacy (for a total of approximately 20,926,830 shares of
common stock of New Legacy for the 7,200,000 shares of Series B
Preferred Units outstanding), (iii) for the purposes of
clarification, phantom units that settle in units representing
limited partner interests in the Partnership are included in the
definition of "Restricted Unit", (iv) the board of directors of
the General Partner will take all necessary actions to allow the
Unitholders to vote at a special meeting of the Unitholders on a
proposal to approve the classification of the board of directors
of New Legacy, to be in effect following the closing of the A&R
Merger Agreement, (v) the Form of Amended and Restated
Certificate of Incorporation of New Legacy is revised to note
where modifications will need to be made based on the outcome of
the Classified Board Proposal and to remove Section 10.3 thereto
(the provision designating the Court of Chancery of the State of
Delaware as the sole and exclusive forum to bring certain actions
against New Legacy), (vi) the Form of Amended and Restated Bylaws
of New Legacy is revised to note where modifications will need to
be made based on the outcome of the Classified Board Proposal,
(vii) Exhibit C to the A&R Merger Agreement designating New
Legacy's Board of Directors following the consummation of the
Merger is revised to note that if the Classified Board Proposal
is not approved, the six members noted on Exhibit C will serve as
New Legacy's Board of Directors in a single class that is elected
annually and (viii) Exhibit D to the A&R Merger Agreement
designating New Legacy's officers following the consummation of
the Merger is revised to identify additional officers that have
been appointed as officers of the Partnership GP since the date
of the Initial Merger Agreement. The closing of the A&R Merger
Agreement is not conditioned on the approval of the Classified
Board Proposal by the Unitholders.
If the Classified Board Proposal is approved by holders of a
majority of the votes cast (not including abstentions and broker
non-votes) by Unitholders who are present (in person or by proxy)
and entitled to vote at the Special Meeting, then concurrent with
the closing of the A&R Merger Agreement, the board of directors
of New Legacy will be reconstituted into three classes of two
directors each, and the members of each class will serve
staggered, three-year terms (other than with respect to the
initial terms of the Class I and Class II directors, which will
be one and two years, respectively). If the Classified Board
Proposal is not approved by the Unitholders, the board of
directors of New Legacy will consist of a single class of six
directors, each of whom will serve until the next annual meeting
of shareholders at which his or her successor has been duly
elected and qualified or until their earlier death, resignation
or removal.
A full-text copy of the Amended and Restated Agreement and Plan
of Merger is available for free at:
https://is.gd/OVsx23
A full-text copy of the Stipulation and Agreement of Settlement
is available for free at:
https://is.gd/gBXKG7
About Legacy Reserves LP
Legacy Reserves LP -- http://www.LegacyLP.com/-- is a master
limited partnership headquartered in Midland, Texas, focused on
the development of oil and natural gas properties primarily
located in the Permian Basin, East Texas, Rocky Mountain and Mid-
Continent regions of the United States.
Legacy Reserves reported a net loss attributable to unitholders
of $72.89 million in 2017, a net loss attributable to unitholders
of $74.82 million in 2016, and a net loss attributable to
unitholders of $720.5 million in 2015. As of March 31, 2018,
Legacy Reserves had $1.49 billion in total assets, $1.69 billion
in total liabilities and a total partners' deficit of $201.11
million.
* * *
Moody's Investors Service affirmed Legacy Reserves LP's Corporate
Family Rating (CFR) at 'Caa2' and its senior unsecured notes
rating at 'Caa3'. Legacy's 'Caa2' CFR reflects the company's
high leverage, weak liquidity and significant debt refinancing
risk, as reported by the TCR on Jan. 26, 2018.
LIFE LINE: Left Out Bonus in "Scaggs" Overtime Computation Claim
----------------------------------------------------------------
Tracey Scaggs, on behalf of herself and all others similarly
situated, Plaintiff, v. Life Line Screening of America, Ltd.,
Defendant, Case No. 18-cv-01055 (N.D. Ohio, May 7, 2018), asserts
violation of the Fair Labor Standards Act and the Ohio Minimum
Fair Wage Standards Act.
Defendant provides preventative health care screening exams
throughout the United States where Scaggs has been employed by
Lifeline as a preventative healthcare advisor, receiving inbound
calls to schedule preventative health screenings, processing
payments for screening services and recommending additional
screening procedures to patients based on several factors.
Defendants allegedly failed to include the bonuses paid in their
regular rate of pay for purposes of calculating their overtime
compensation. [BN]
Plaintiff is represented by:
Chastity L. Christy, Esq.
Lori M. Griffin, Esq.
Anthony J. Lazzaro, Esq.
THE LAZZARO LAW FIRM, LLC
920 Rockefeller Building
614 W. Superior Avenue
Cleveland, OH 44113
Phone: (216) 696-5000
Facsimile: (216) 696-7005
Email: anthony@lazzarolawfirm.com
chastity@lazzarolawfirm.com
lori@lazzarolawfirm.com
LUNA ENTERPRISE: "Bazan" Suit Alleges FLSA Violation
----------------------------------------------------
Miguel Angel Placido Bazan and Marcelino Martinez, individually
and on behalf of others similarly situated v. Luna Enterprise LLC
dba Sophie's Cuban Cuisine, Sophie's Restaurant #3 LLC dba
Sophie's Cuban Cuisine, Sofia Luna, Jason Doe, and Leila Doe,
Case No. 1:18-cv-05780 (S.D. N.Y., June 26, 2018), is brought
against the Defendants for violations of the Fair Labor Standards
Act and the New York labor Law.
The Plaintiff Placido was employed by the Defendants at the
Chambers Street location from approximately July 2012 until on or
about May 2017. The Defendants ostensibly employed Plaintiff
Placido as a delivery worker.
The Plaintiff Martinez was employed by the Defendants at the
Chambers Street location from approximately November 2011 until
on or about April 2017 and at the New Street location from
approximately April 2017 until on or about July 2017. The
Defendants employed Plaintiff Martinez as a food preparer.
The Defendants own and operate two Latin American restaurants
located in the Financial District section of Manhattan in New
York City. [BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Fax: (212) 317-1620
LYFT INC: Sept. 20 Fairness Hearing on "Zamora" Settlement
---------------------------------------------------------
In the case, ALEX ZAMORA and RAYSHON CLARK on behalf of
themselves and all those similarly situated, Plaintiffs, v. LYFT,
INC., Defendant, Case No. 3:16-cv-02558-VC (N.D. Cal.), Judge
Vince Chhabria of the U.S. District Court for the Northern
District of California, San Francisco Division, granted the
Plaintiffs' Motion for Preliminary Approval of the Class action
Settlement.
The Court held a hearing on the motion on May 3, 2018. The
Court's scrutiny of the proposed Settlement has been as rigorous
at the preliminary stage as it will be at the final approval
stage.
In accordance with that level of scrutiny, Judge Chhabria has
carefully considered the Settlement Agreement together with all
exhibits thereto, all the filings related to the Settlement, the
arguments of counsel, and the record in the case. He
preliminarily approved the Settlement, together with all of its
Exhibits, finding that the terms of the Agreement are fair,
reasonable, and adequate, and within the range of possible
approval and sufficient to warrant providing notice to the
Settlement Class.
Pursuant to Fed. R. Civ. P. 23(a) and (b)(3), he certified, for
settlement purposes only, the Settlement Class of all Lyft
Drivers who gave at least one Prime Time Ride in California
during the period from Aug. 18, 2014 to April 7, 2017.
The Judge appointed, for settlement purposes only, Named
Plaintiffs Alex Zamora and Rayshon Clark as the class
representatives; the law firm of Outten & Golden LLP as the Class
Counsel; and Rust Consulting, Inc. as the Settlement
Administrator.
He finds that the revised proposed Class Notice, and the proposed
plan of distribution of the Class Notice meet the requirements of
Federal Rule of Civil Procedure 23(c)(2)(B), and directed the
Claims Administrator to proceed with the notice distribution in
accordance with the terms of the Settlement Agreement.
Any Settlement Class Member who wishes to opt out from the
Agreement must do so within 60 days of the Notice Date and in
accordance with the terms of the Settlement Agreement. 10. Any
Settlement Class Member who wishes to object to the Agreement
must do so within 60 days of the Notice Date and in accordance
with the terms of the Settlement Agreement.
The Judge has reviewed and approved the claims process. To be
considered timely, a Claim Form must be filed by no later than
the Fairness Hearing, that is, by Sept. 20, 2018.
He also approved the procedures set forth in the Settlement
Agreement and the Notice of Settlement of Class Action for
exclusions from and objections to the Settlement. He directed
that the Fairness Hearing be scheduled on Sept. 20, 2018 at 10:00
a.m. The Plaintiffs will file a motion for final approval of the
Settlement no later than 14 days before the Fairness Hearing.
The Plaintiffs may file motions for attorneys' fees, costs, and
class representative Service Awards no later than 21 days before
the Exclusion/Objection Deadline, and the reply briefs on such
motions will be filed no later than 14 days before the Fairness
Hearing.
Judge Chhabria directed that these deadlines are established by
the Preliminary Approval Order:
a. Notice Date: within 45 days of this Preliminary Approval
Order.
b. Opt-Out Deadline: 60 days after the Notice Date.
c. Objection Deadline: 60 days after the Notice Date.
d. Claims Submission Date: Sept. 20, 2018 (though, as
described above, later claims may be accepted).
e. Fairness Hearing: Sept. 20, 2018 at 10:00 a.m.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/jVRwYs from Leagle.com.
Alex Zamora, on behalf of themselves and all those similarly
situated & Rayshon Clark, on behalf of themselves and all those
similarly situated, Plaintiffs, represented by Jahan C. Sagafi --
jsagafi@outtengolden.com -- Outten & Golden LLP & Michael Scimone
-- mscimone@outtengolden.com -- Outten and Golden LLP.
Lyft, Inc., Defendant, represented by Rachael Elizabeth Meny --
rmeny@keker.com -- Keker, Van Nest & Peters LLP, Jay Rapaport --
jrapaport@keker.com -- Keker, Van Nest & Peters LLP & Simona
Alessandra Agnolucci -- sagnolucci@keker.com -- Keker, Van Nest &
Peters LLP.
MACY'S INC: Rostami Seeks to Stop Fraudulent Billing Practices
--------------------------------------------------------------
SHERRY ROSTAMI, and all others similarly situated v. MACY'S,
INC., and DOES 1-20, Case No. 3:18-cv-01449-BEN-WVG (S.D. Cal.,
June 25, 2018), seeks to enjoin the alleged deceptive business
practices of the Defendant with regard to its deceptive,
misleading, and fraudulent billing practices in charging the
Plaintiff for purchases made at its online store.
Macy's is an Ohio corporation that operates nationwide retail
stores, including an online store. The true names and capacities
of the Doe Defendants are unknown to the Plaintiff.[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
MARKETSOURCE INC: "Nguyen" Stayed Pending "Morris" Ruling
---------------------------------------------------------
Judge Anthony J. Battaglia of the U.S. District Court for the
Southern District of California granted the Defendant's motion to
stay all proceedings in the case, KEVIN NGUYEN, individually and
on behalf of other persons similarly situated, Plaintiff,
MARKETSOURCE, INC. (aka MARKETSOURCE, INC., which will do
business in California as Maryland MARKETSOURCE, INC.), a
Maryland corporation, et al., Defendants, Case No. 17-cv-02063-
AJB-JLB (S.D. Cal.), pending the Supreme Court's ruling in Ernst
& Young, LLP v. Morris.
Nguyen, was employed by the Defendant as a Technology Sales
Specialist from May 22, 2016, through approximately April 5,
2017. As a Sales Specialist, he was paid an hourly rate to
travel to various worksites to promote the Defendant's products.
In the present matter, he was assigned to promote HP branded
products, distribute promotional items, and answer questions from
store employees and customers.
In sum, the Plaintiff alleges that while he was employed by the
Defendant he was not provided mileage reimbursement when driving
between work sites, was required to use his own personal cellular
telephone, and that he earned certain monetary "bonuses" that
were not factored into the regular rate of pay calculation for
purposes of determining his overtime wage rate for time worked.
Prior to his employment, on May 14, 2016, the Plaintiff
electronically signed a mutual arbitration agreement with the
Defendant. This same document also states that no covered claims
may be initiated or maintained on a class action, collective
action, or representative action basis either in court or
arbitration.
The Plaintiff first filed his complaint in Superior Court on Oct.
6, 2017, alleging causes of action for (1) failure to pay
straight-time and overtime wages; (2) violation of the unfair
competition law; (3) failure to reimburse required expenses; (4)
failure to pay all wages upon termination; and (5) failure to
provide accurate wage statements. The case was then removed on
Oct. 6, 2017.
Presently before the Court is the Defendant's motion to compel
individual arbitration and to dismiss class claims, or, in the
alternative, to stay proceedings pending a Supreme Court
decision. The Defendant asserts that the Court should compel the
Plaintiff to honor his mutual agreement to arbitrate his
individual claims. It also argues that the proceeding should be
stayed pending the Supreme Court's ruling in Morris.
The Plaintiff opposes the motion arguing that the arbitration
agreement is "illegal" as he was not provided a meaningful
opportunity to opt-out of the agreement. Thus, there is no
reason to compel the case to go to arbitration.
The issue in Morris was whether an employer violates the National
Labor Relations Act ("NLRA") by requiring employees to sign an
agreement precluding them from bringing, in any forum, a
concerted legal claim regarding wages, hours, and terms and
conditions of employment. Similar to the allegations in the
present matter, the arbitration agreement in Morris was imposed
on the plaintiff as a condition of employment. The plaintiff
then filed suit despite the existence of a class action waiver in
the arbitration agreement, claiming that the waiver was rendered
illegal by the NLRA, and thus sought to avoid individual
arbitration and instead proceed in federal court as a class. On
Jan. 13, 2017, the Supreme Court granted certiorari in Morris to
resolve the circuit split that had developed and heard oral
argument on Oct. 2, 2017.
As the arbitration agreement at issue was purportedly imposed on
the Plaintiff as a condition of his employment, Judge Battaglia
holds that the Supreme Court's decision in Morris will have a
direct impact on the issues before the Court. He satisfied that
granting a stay will conserve judicial resources that would
otherwise be unnecessarily expended challenging pleadings and
litigating class certification issues. Indeed, it would prove to
be an extraordinary waste of time and money to continue
litigating this case only to have to do it all again because the
experts, the parties and the Court were proceeding under a legal
framework that the Supreme Court determined did not apply.
Consequently, he concludes that a stay of proceedings pending the
Supreme Court's resolution of Morris is warranted.
Accordingly, the Judge granted the Defendant's motion to stay.
He stayed all litigation until further order from the Court. He
terminated without prejudice the Defendant's pending motion to
compel arbitration so that the Defendant may re-notice the
motion, if applicable, after the Morris decision is published.
Further, the parties are ordered to jointly notify the Court
within five days of the Supreme Court's decision in Morris.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/aq0ILJ from Leagle.com.
Kevin Nguyen, individually and on behalf of other persons
similarly situated, Plaintiff, represented by Alexander Isaac
Dychter -- alex@dychterlaw.com -- Dychter Law Offices, APC & Seth
Adam Spiewak -- s.adamspiewak@gmail.com.
MarketSource, Inc., a Maryland Corporation, Defendant,
represented by Michael S. Kun -- cemail@ebglaw.com -- Epstein,
Becker & Green, PC.
MAZZONE MANAGEMENT: Court Denies Bid to Seal in "Olvera" Suit
-------------------------------------------------------------
In the case, JULIO A. OLVERA, KAREN GREENE, CHRISTIE REGILSKI,
and RALPH BALSAMO on behalf of themselves and others similarly
situated, Plaintiffs, v. MAZZONE MANAGEMENT GROUP LTD., MAZZONE
MANAGEMENT INC., 677 PRIME LLC, PRIME AT SARATOGA NATIONAL, LLC,
ANGELO MAZZONE, AND MATTHEW MAZZONE, Defendants, Case No. 1:16-
cv-502(BKS/DJS) (N.D. N.Y.), Judge Brenda K. Sannes of the U.S.
District Court for the Northern District of New York denied the
Plaintiffs' motion to seal their memorandum of law and the
declaration of their attorney, James E. Tonrey, Jr., and the
exhibits attached thereto.
The named Plaintiffs bring the putative collective and class
action under the Fair Labor Standards Act ("FLSA") and New York
Labor Law ("NYLL"), on behalf of themselves and others similarly
situated, to recover tips they earned while employed as food
service workers for Defendant Mazzone and its related entities
and affiliated individuals.
On April 30, 2018, the Plaintiffs filed a motion seeking, inter
alia, conditional Certification of a class of FLSA Claimants and
a Class Certification of NYLL Claimants" under Rule 23 of the
Federal Rules of Civil Procedure. They also filed a request for
an order sealing their memorandum of law and the declaration of
their attorney, Tonrey, and the exhibits attached thereto.
These exhibits include, among other things, documentary evidence
concerning employee compensation, tipping practices, and tip
disbursements, Defendants' communications with customers
regarding pricing and fees for events, and payroll status
reports. They also include the deposition transcripts of
Plaintiffs Greene, Olvera, and Balsamo and two of the Defendants'
corporate designees, all of whom, the Plaintiffs assert,
testified about information and documents which the Defendants
have designated as Confidential under the Confidentiality
Stipulation as well as the Defendants' compensation practices,
tipping practices, employment practice, and proprietary business
communications.
The Defendants do not oppose the Plaintiffs' request to seal.
Judge Sannes explains that courts apply the following six factors
set forth in the Restatement (First) of Torts Section 757,
comment b, when determining the existence of a trade secret: (1)
the extent to which the information is known outside of [the]
business; (2) the extent to which it is known by employees and
others involved in [the] business; (3) the extent of measures
taken by [the business] to guard the secrecy of the information;
(4) the value of the information to the business and its
competitors; (5) the amount of effort or money expended by [the
business] in developing the information; (6) the ease or
difficulty with which the information could be properly acquired
or duplicated by others.
She finds that the Plaintiffs have not addressed these factors,
and therefore fail to provide a factual basis that would allow
the Court to make specific, on the record findings that closure
is essential to preserve higher values and is narrowly tailored
to serve that interest. Moreover, the exhibits the Plaintiffs
seek to seal contain, inter alia, a copy of the Amended
Complaint, which is publicly filed, a printout describing Mazzone
Hospitality that appears to be from a publicly available website,
and a proposed class/collective action notice. They have
identified no basis for sealing these documents.
Further, the Judge finds that the Plaintiffs propose wholesale
sealing in view of their concern that presenting the memorandum
of law in redacted fashion would render it and the exhibits
nearly incomprehensible because they are suffused with
Confidential Information. However, in the absence of any
discussion of the factors referenced, she cannot determine
whether the exhibits are, as the Plaintiffs contend, poor
candidates for redaction. Thus, the Plaintiffs have failed to
make a showing sufficient to overcome the presumption of public
access under either the common law or First Amendment.
For these reasons, Judge Sannes denied the Plaintiffs' motion to
seal.
A full-text copy of the Court's May 9, 2018 Memorandum-Decision
and Order is available at https://is.gd/rVt8qY from Leagle.com.
Julio A. Olvera, on behalf of themselves and others similarly
situated, Karen Greene, on behalf of themselves and others
similarly situated, Christie Regilski, on behalf of themselves
and others similarly situated & Ralph Balsamo, on behalf of
themselves and others similarly situated, Plaintiffs, represented
by Ananda N. Chaudhuri -- achaudhuri@fleischmanlawfirm.com --
Fleischman Law Firm, Joseph T. Moen -- joe@jtmoenlaw.com -- Law
Office of Joseph T. Moen, pro hac vice, Joshua D. Glatter --
jglatter@fleischmanlawfirm.com -- Fleischman Law Firm, Keith M.
Fleischman -- keith@fleischmanlawfirm.com -- Fleischman Law Firm,
James E. Tonrey, Jr. -- jtonrey@wilentz.com -- Wilentz Goldman &
Spitzer PA & Kevin P. Roddy -- kroddy@wilentz.com -- Wilentz
Goldman & Spitzer PA.
Mazzone Management Group LTD., Mazzone Management Inc., 677 Prime
LLC, Prime at Saratoga National, LLC, Angelo Mazzone & Matthew
Mazzone, Defendants, represented by Christopher John Stevens --
Christopher.Stevens@jacksonlewis.com -- Jackson Lewis P.C.,
William J. Anthony -- William.Anthony@jacksonlewis.com -- Jackson
Lewis P.C., Clemente J. Parente --
Clemente.Parente@jacksonlewis.com -- Jackson Lewis P.C. & Vincent
E. Polsinelli -- Vincent.Polsinelli@jacksonlewis.com -- Jackson
Lewis P.C..
MCMC LLC: "Mauthe" Sues Over Illegally-faxed Ads
------------------------------------------------
Robert W. Mauthe, M.D., P.C., a Pennsylvania corporation,
individually and as the representative of a class of similarly-
situated persons, Plaintiff, v. MCMC, LLC, Defendant, Case No.
18-cv-01901, (E.D. Pa., May 7, 2018), seeks statutory and treble
damages, injunctive relief, compensation and attorney fees for
violation of the Telephone Consumer Protection Act.
Robert W. Mauthe, M.D., P.C., is a private medical practice in
Center Valley, Pennsylvania. He allegedly received faxed
advertisements from MCMC without his prior consent and the fax
does not have an opt-out notice on its first page.
MCMC is a provider of multiple managed care programs, first
report of injury call centers for workers' compensation programs,
case management services, medical bill review and medicolegal
review course or programs. [BN]
Plaintiff is represented by:
Richard Shenkan, Esq.
SHENKAN INJURY LAWYERS, LLC
6550 Lakeshore St.
West Bloomfield, MI 48323
Tel: (248) 562-1320
Fax: (888) 769-1774
Email: rshenkan@shenkanlaw.com
MDL 2437: Manufacturers Can't Compel Production of Injury Docs
--------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania denied Defendant's Motion to Compel Production in
the case captioned IN RE: DOMESTIC DRYWALL ANTITRUST LITIGATION.
THIS DOCUMENT RELATES TO: Ashton Woods Holdings LLC, et al.,
Plaintiffs, v. USG Corp., et al., Defendants, Civil Action No.
15-cv-1712, MDL No. 13-2437 (E.D. Pa.).
Competing motions filed by Plaintiffs (large Homebuilders) and
Defendants (drywall manufacturers) concerning discovery over
injury and damages have been filed.
As a background for these motions, the Court held a hearing for
the purpose of adjudicating a number of discovery disputes in
this case, principally over the fact of injury and damages.
Extensive discovery had already taken place concerning general
background and liability, but did not preclude discovery of
evidence relevant on injury and/or damages.
The Court rules that the Plaintiff does not have the burden of
proving that an agreement to fix prices is the sole cause of a
price increase. Under settled law, the Plaintiffs only need to
prove that the illegal agreement is a substantial or a material
cause of a price increase, even though a jury could conclude that
there may be other reasons for the increase. Thus, when the case
reaches the trial stage, the parties will undoubtedly put on
competing evidence as to what caused price increases to the
Homebuilder Plaintiffs.
The Plaintiffs will have evidence, from the liability phase of
this case, from which a jury may conclude there was an agreement.
The Defendants assert there is other evidence as well, including
facts that may show that the Homebuilders passed on the price of
drywall to their home buying customers, that demand increased,
and possibly that their own costs increased.
The Plaintiffs have several reasons for opposing this extensive
discovery as follows, inter alia:
1. The contention statements were designed by the Court to
"moot" prior discovery disputes and to require each party to put
forward its best evidence on damages, presumably relying on
documents that had already been produced.
2. The extensive, belated, and very detailed document demands
that Defendants are now making are not essential to a fair
resolution of this case.
The Court has determined to resolve both motions as follows,
inter alia:
1. The Court has reviewed the damages contention statement of
one Plaintiff, D.H. Horton, and finds that it generally meets
what the Court contemplated and intended as an appropriate damage
statement for each Plaintiff. The Court has not reviewed the
other Plaintiffs' contention statements, but assumes that they
are similar in format and content.
2. The Court assumes that the Defendants have taken a
deposition of 1-3 representatives from each of the Plaintiffs as
the prior Court order, or will do so by the current deposition
deadline.
3. Even if the Plaintiffs' motion to compel is timely in part,
the type of discovery demand that was made to Plaintiff Beazer,
as listed in the Defendants' brief, as an example, is much too
broad for this stage of the litigation and would undoubtedly
delay resolution of the pending and scheduled motions so that
this case can be returned to the Central District of California
for trial.
Accordingly, the Court will deny the Defendants' Motion to Compel
in substantial part, subject to qualifications and subject to
renewal as to timely filed disputes only.
A full-text copy of the District Court's May 10, 2018 Memorandum
is available at https://tinyurl.com/y6uhxr9a from Leagle.com.
ASHTON WOODS HOLDINGS L.L.C., BEAZER HOMES HOLDINGS CORP., D.R.
HORTON LOS ANGELES HOLDING COMPANY, INC., HOVNANIAN ENTERPRISES,
INC., KB HOME, MERITAGE HOMES CORPORATION, M/I HOMES, INC., PULTE
HOME CORPORATION, THE DREES COMPANY, TOLL BROTHERS, INC., TRI
POINTE HOMES, INC. & CALATLANTIC GROUP, INC., Plaintiffs,
represented by BRIAN RUSSELL STRANGE --
bstrange@strangeandbutler.com -- STRANGE & BUTLER, CINDY ZONE
REICHLINE -- creichline@strangeandbutler.com -- STRANGE & BUTLER,
JOHN THEODORE CEGLIA -- jceglia@strangeandbutler.com -- STRANGE &
BUTLER, KEITH LAWRENCE BUTLER -- kbutler@strangeandbutler.com --
STRANGE & BUTLER & TYLER WILLIAM WARNER --
twarner@strangeandbutler.com -- STRANGE & BUTLER LLP.
USG CORPORATION, L&W SUPPLY CORPORATION & UNITED STATES GYPSUM
COMPANY, Defendants, represented by STEVEN E. BIZAR --
steven.bizar@dechert.com -- Dechert LLP, JOSHUA P. ACKERMAN --
joshua.ackerman@bartlit-beck.com -- BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP, LESTER C. HOUTZ -- lester.houtz@bartlit-beck.com --
BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP, PHILIP S. BECK --
philip.beck@bartlit-beck.com -- BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP, REBECCA W. BACON -- rweinstein.bacon@bartlit-beck.com
-- BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP, SHARON DESH --
sharon.desh@bartlit-beck.com -- BARTLIT BECK HERMAN PALENCHAR &
SCOTT LLP & SUNDEEP KUMAR ADDY -- rob.addy@bartlit-beck.com --
BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP.
NEW NGC, INC., Defendant, represented by STEVEN E. BIZAR, Dechert
LLP, BENJAMIN F. MCANANEY, DECHERT, J. MARK GIDLEY, WHITE & CASE
LLP, JULIA CHAPMAN, DECHERT LLP, RACHEL EZZELL, MORGAN, LEWIS &
BOCKIUS LLP, ROBERT EVANS HARRINGTON, ROBINSON, BRADSHAW &
HINSON, P.A. & THOMAS P. MANNING, BUCHANAN INGERSOLL & ROONEY
P.C.
MDL 2818: Court Sets Protocol for Common Benefit Work & Expenses
----------------------------------------------------------------
In the case, IN RE: GENERAL MOTORS CORP. AIR CONDITIONING
MARKETING AND SALES PRACTICES LITIGATION. ALL CASES, Case No. 18-
md-02818 (E.D. Mich.), Judge Matthew F. Leitman of the U.S.
District Court for the Eastern District of Michigan, Southern
Division, has entered an order setting protocol for common
benefit work and expenses.
In an order dated April 11, 2018, the Court appointed the
Plaintiffs' Co-Lead Counsel. Among the duties imposed in that
order on the Co-Lead Counsel was the obligation to enforce
guidelines approved by the Court as to the keeping of time
records and expenses. In the Order, Judge Leitman establishes
specific guidelines and rules for work done and expenses incurred
for the common benefit of all Plaintiffs in the MDL. Nothing in
it will be interpreted to affect any proceedings other than those
involving the authorities, duties, responsibilities, guidelines,
and rules of and for the Plaintiffs' counsel.
The Judge adopts the following guidelines for the management of
case staffing, timekeeping, cost reimbursement, and related
common benefit issues. The recovery of common benefit attorney's
fees and cost reimbursements will be limited to these
Participating Counsel.
The "Common Benefit Work" includes all work done and expenses
incurred that inure to the common benefit of the Plaintiffs in
the MDL. All time must be accurately and contemporaneously
maintained. The Participating Counsel must keep contemporaneous
billing records of the time spent in connection with Common
Benefit Work on the MDL, indicating with specificity the hours
(in tenth-of-an-hour increments) and billing rate, along with a
description of the particular activity. The Counsel should
direct to Co-Lead Counsel any additional questions about
particular timekeeping categories. Under no circumstances should
a submitting firm make up new categories for use in its
submission.
The counsel may use their customary billing rates in monthly time
reports. However, use of those rates does not guarantee payment.
The Court will exercise its discretion to determine reasonable
and appropriate rates as the circumstances may warrant.
The "Shared Costs" are costs that will be paid out of a
Litigation Fund administered by the Plaintiffs' Co-Lead Counsel.
Each Co-Lead Counsel will contribute to the Fund at times and in
amounts sufficient to cover the Plaintiffs' expenses for the
administration of the MDL. The timing and amount of each
assessment will be determined jointly by the Plaintiffs' Co-Lead
Counsel and each assessment will be paid within 30 days as
jointly determined by the Plaintiffs' Co-Lead Counsel. The
failure to pay assessments will be grounds for removal from the
appointments made in previous Court Orders or other common
benefit assignments.
The Co-Lead Counsel must prepare and be responsible for
distributing reimbursement procedures and the forms associated
therewith. The requests for payments from the Fund for Common
Benefit expenses must include sufficient information to permit
the Co-Lead Counsel and a certified public accountant to account
properly for costs and to provide adequate detail to the Court if
necessary.
The "Held Costs" are those costs and expenses that will be
carried by each attorney in this MDL and reimbursed as and when
the Co-Lead Counsel determines to do so. They are those that do
not fall into the above Shared Costs categories but are incurred
for the common benefit of all the Plaintiffs in the MDL. No
client-specific costs can be considered Held Costs, other than
certain Common Benefit costs relating to the class
representatives and future bellwether cases at the discretion of
the Co-Lead Counsel. The Held Costs will be recorded in
accordance with the guidelines set forth in the Order and on the
form provided as Addendum B thereto.
For the Co-Lead Counsel to maintain all time submissions in a
fully sortable and searchable format, all of the time and expense
submissions must be provided by the submitting counsel. Time
submissions will be made to the Co-Lead Counsel on a monthly
basis, by deadlines and in accordance with the guidelines set
forth in the order. The first submission is due on June 15, 2018
and should include all time and expense from inception of work on
General-Motors-Corp-Air-Conditioning-Marketing-and-Sales-
Practices-related litigation through May 31, 2018.
After the first submission, each monthly submission should
include all common benefit time and expenses incurred from the
first to the last day of the preceding month (e.g. the submission
due July 15, 2018, should contain all common benefit time and
expenses incurred from June 1, 2018, through June 30, 2018).
Although the counsel should endeavor to submit all common benefit
expenses incurred in a certain month in the submission made on
the 15th of the next month, the realities of third-party billing
and credit card statement schedules may make such quick expense
submission difficult in some circumstances. Thus submissions of
"supplemental" common benefit expense reports will be permitted
for those expenses incurred during the previous six months that,
because of circumstances outside the submitting counsel's
control, could not have been submitted by the deadline.
Any common benefit expenses submitted more than six months in
arrears may not be considered or included in any compilation of
common benefit expense calculation and may be disallowed, except
for good cause shown and with the approval of the Co-Lead
Counsel. The Supplemental submissions of common benefit time
will be permitted only for good cause shown and with the approval
of the Co-Lead Counsel.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/048CL4 from Leagle.com.
Mohamed Tangara, Thomas L Brennan, Lauren Heiser & Christopher
Humpherys, Plaintiffs, represented by Bryan L. Clobes --
bclobes@caffertyclobes.com -- CAFFERTY CLOBES MERIWETHER &
SPRENGEL LLP, Christopher Phillip Taylor Tourek, Bock & Hatch
LLC, Dennis A. Lienhardt -- dal@miller.law -- The Miller Law
Firm, P.C., E. Powell Miller, The Miller Law Firm, Joseph G.
Sauder -- jgs@sstriallawyers.com -- Sauder Schelkopf LLC, Patrick
E. Cafferty -- pcafferty@caffertyclobes.com -- Cafferty Clobes
Meriwether & Sprengel LLP & Sharon S. Almonrode -- ssa@miller.law
-- The Miller Law Firm, P.C.
Erica Wolfe, Plaintiff, represented by Bryan L. Clobes , CAFFERTY
CLOBES MERIWETHER & SPRENGEL LLP, Dennis A. Lienhardt, The Miller
Law Firm, P.C., E. Powell Miller, The Miller Law Firm, Joseph G.
Sauder, Sauder Schelkopf LLC & Sharon S. Almonrode, The Miller
Law Firm, P.C.
Ryan Jenkins, Yamet Garcia & Carl Williams, Plaintiffs,
represented by Annika K. Martin -- akmartin@lchb.com -- Lieff
Cabraser Heimann & Bernstein & Mark P. Chalos -- mchalos@lchb.com
-- Lieff, Cabraser, Heimann & Bernstein.
Jones Won, 18-10508, Plaintiff, pro se.
Billy Frank & John O'Brien, Plaintiffs, represented by Annika K.
Martin, Lieff Cabraser Heimann & Bernstein, Jonathan D. Selbin --
jselbin@lchb.com -- Lieff, Cabraser, Heimann & Bernstein LLP &
Mark P. Chalos, Lieff, Cabraser, Heimann & Bernstein.
Jenni Davis, Robert Valles, Jr, Kevin Blagg, Matthew Dexter,
Steven Manning, Andrew Hill, Nathan Dodge, RONALD GAVALDON,
William Taylor, Hayes Ellis, Rick Miller, Aaron Howard, Jan
Howard, Eric Pitre, Richard Northcutt & Richie Ainsworth,
Plaintiffs, represented by Dennis C. Reich, Reich & Binstock, LLP
& Richard M. Schechter -- richard@rs-law.com -- Law Office of
Richard Schechter, P.C.
Kenneth Gay, Plaintiff, represented by James P. Allen --
jamesallen@allenbrotherspllc.com -- Allen Brothers, Lynn A. Toops
-- ltoops@cohenandmalad.com -- Cohen & Malad, LLP & Vess A.
Miller -- vmiller@cohenandmalad.com -- Cohen and Malad.
Marcus Bell & Christopher Robitsek, Plaintiffs, represented by
Benjamin F Johns -- benjohns@chimicles.com -- Chimicles &
Tikelllis LLP & Cory S. Fein, Caddell & Chapman.
Rodney Martin, Clarence Larry, Leslie Griffin, Edilberto Gomez &
Corey Steketee, Plaintiffs, represented by E. Powell Miller --
epm@miller.law -- The Miller Law Firm.
General Motors LLC & General Motors Company, Defendants,
represented by Daniel J. LaCombe -- dlacombe@bsdd.com -- Barris,
Sott, Guyon H. Knight -- guyonknight@quinnemanuel.com -- Quinn
Emanuel Urquhart & Sullivan, LLP & Mark S. Cheffo --
markcheffo@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan,
LLP.
General Motors Holdings LLC, Defendant, represented by Guyon H.
Knight, Quinn Emanuel Urquhart & Sullivan, LLP & Mark S. Cheffo,
Quinn Emanuel Urquhart & Sullivan, LLP.
MEDICREDIT INC: Seeks 5th Cir. Review of Ruling in "Flecha" Suit
----------------------------------------------------------------
Defendants Medicredit, Incorporated, and Fidelity and Deposit
Insurance Company of Maryland filed an appeal from a court ruling
in the lawsuit titled Nina Flecha v. Medicredit, Incorporated, et
al., Case No. 1:16-CV-792, in the U.S. District Court for the
Western District of Texas, Austin.
As previously reported in the Class Action Reporter on June 29,
2018, the Hon. Judge Lee Yeakel entered an order:
1. granting Plaintiff's motion for class certification (filed
July 13, 2017):
"all persons in Texas from whom Medicredit attempted to
collect and who received a form collection letter from
Medicredit containing these statements: Your seriously
delinquent Seton Medical Center Hays account remains unpaid
despite past requests for payment."
2. appointing Nina Flecha as Class Representative; and
3. appointing Community Lawyers Group, Ltd. as class counsel.
The appellate case is captioned as Nina Flecha v. Medicredit,
Incorporated, et al., Case No. 18-90027, in the U.S. Court of
Appeals for the Fifth Circuit.[BN]
Plaintiff-Respondent NINA FLECHA, on behalf of herself and all
others similarly situated, is represented by:
Michael Jacob Wood, Esq.
COMMUNITY LAWYERS GROUP, LIMITED
73 W. Monroe Street
Chicago, IL 60603
Telephone: (312) 757-1880
E-mail: mwood@communitylawyersgroup.com
Defendants-Petitioners MEDICREDIT, INCORPORATED, and FIDELITY AND
DEPOSIT INSURANCE COMPANY OF MARYLAND are represented by:
Tara Moriarty Kumpf, Esq.
OLGETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
301 Congress Avenue
Austin, TX 78701
Telephone: (512) 344-4715
E-mail: tara.kumpf@ogletreedeakins.com
Defendant-Petitioner MEDICREDIT, INCORPORATED, is represented by:
Jacob W. Stahl, Esq.
DEBEVOISE & PLIMPTON, L.L.P.
919 3rd Avenue
New York, NY 10022
Telephone: (212) 909-6000
E-mail: jwstahl@debevoise.com
MERCEDES BENZ: Court Requires Supplemental Info for Settlement
--------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order directing submission of supplemental
information in support of Motion for Preliminary Approval of
Class Action Settlement and to Certify Class in the case
captioned STEVE FERRARI, ET AL., Plaintiffs, v. MERCEDES BENZ
USA, LLC, ET AL., Defendants, Case No. 17-cv-00018-YGR (N.D.
Cal.).
The Court has implemented a process to gather additional
information to aid it in its assessment of the settlement and to
require an audit after distributions. The Plaintiffs' counsel is
directed to provide further information. The information should
be provided in a summary chart format.
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/ybctozu7 from Leagle.com.
Steve Ferrari, Mike Keynejad, Patricia Rubin, individually and as
a representative of the Class of Persons similarly Situated,
Hooshang Jowza, Celso Frazao, Renuka Narayan, Gertrud Frankrone,
Ernest Salinas, Kalkhusan Sareen, Hossein Jalali, Ron Wolfe,
Sohrab Rahimzadeh, Fred Grant, Ester Grant, Vincent Leung,
Jessica Langridge, Tony Nicolosi, Donald Lyang, Artur Semichev,
John Diaz, Harold Fethe & Ray Gapasin, Plaintiffs, represented by
Herman Franck -- franckhermanlaw88@yahoo.com -- Franck and
Associates, Brian William Warwick --
bwarwick@varnellandwarwick.com -- Varnell and Warwick, David K.
Lietz -- dlietz@varnellandwarwick.com -- Varnell and Warwick,
Elizabeth Betowski -- Elizabeth.francklaw@gmail.com -- Franck and
Associates & Janet Robards Varnell --
jvarnell@varnellandwarwick.com -- Varnell and Warwick.
Mercedes Benz USA, LLC, Defendant, represented by Helen Yiea Trac
-- helen.trac@hoganlovells.com -- Hogan Lovells US LLP, James
Niles Tansey -- james.tansey@hoganlovells.com -- Hogan Lovells
US LLP & Regina M. Rodriguez -- regina.rodriguez@hoganlovells.com
-- Hogan Lovells US LLP.
Sonic Automotive, Inc. & Autobahn, Inc., doing business as
Autobahn Motors, Defendants, represented by Bruce Grant Nye --
bnye@scalilaw.com -- The Scali Law Firm, Daniel F. Katz --
dkatz@wc.com -- Williams and Connolly LLP, F. Gregory Bowman -
fbowman@wc.com -- Williams and Connolly LLP, Georges A. Haddad --
ghaddad@clarkhill.com -- Clark Hill, Juli Ann Lund --
jlund@wc.com -- Williams and Connolly LLP, Mary Beth Hickcox-
Howard -- mhickcox-howard@wc.com -- Williams and Connolly LLP &
Matthew Mark Schroeder, Adams Nye Becht LLP.
MIDLAND CREDIT: "Bianc" Suit Alleges FDCPA Violation
----------------------------------------------------
Annie Bianc, individually and on behalf of all others similarly
situated v. Midland Credit Management, Inc., Case No. 18-cv-61426
(S.D. Fla., June 25, 2018), is brought against the Defendant for
violation of the Fair Debt Collection Practices Act.
The Plaintiff is a natural person, and a citizen of the State of
Florida, residing in Broward County, Florida.
The Defendant is a Kansas corporation, with its principal place
of business located in San Diego, California. The Defendant was
acting as a debt collector in respect to the collection of
Plaintiff's debts. [BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Tel: (954) 907-1136
Fax: (855) 529-9540
E-mail: jibrael@jibraellaw.com
MOHAWK INC: 6th Cir. Affirms Dismissal of Health One TCPA Suit
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In the case, HEALTH ONE MEDICAL CENTER, EASTPOINTE P.L.L.C., a
Michigan Professional Limited Liability Company, individually and
as the representative of a class of similarly-situated persons,
Plaintiff-Appellant, v. MOHAWK, INC., Defendant, BRISTOL-MYERS
SQUIBB COMPANY; PFIZER INC., Defendants-Appellees, Case No. 17-
1973 (6th Cir.), Judge Raymond Kethledge of the U.S. Court of
Appeals for the Sixth Circuit affirmed the district court's order
granting the Defendants filed motions to dismiss under Civil Rule
12(b)(6).
Mohawk Medical, a pharmaceutical wholesaler, sent two unsolicited
faxes to Health One Medical Center. The faxes listed Mohawk's
contact information and offered discount prices on 14 different
drugs, including one manufactured by Bristol-Myers Squibb and
another by Pfizer.
Health One later brought the putative class-action lawsuit, at
first asserting claims only against Mohawk, which never answered
the complaint. Hence the district court entered a default
judgment against it. Health One then amended its complaint to
assert claims against Bristol and Pfizer -- largely on the theory
that they had "sent" the unsolicited faxes simply because the
faxes mentioned their drugs. Those Defendants filed motions to
dismiss under Civil Rule 12(b)(6), which the district court
granted.
The question presented is whether -- for purposes of the
Telephone Consumer Protection Act ("TCPA"), which makes it
unlawful to send an unsolicited advertisement to a fax machine --
the manufacturers of those drugs "sent" those faxes even though
they knew nothing about them. The district court answered no,
and, so does Judge Kethledge after review de novo.
The Judge finds that Bristol and Pfizer neither caused the
subject faxes to be conveyed, nor dispatched them in any way.
Instead only Mohawk did those things. Bristol and Pfizer
therefore did not "send" the faxes and thus have no liability for
them. Thus only Mohawk can be liable for them.
He further finds that the remaining issues amount to
housekeeping. Health One contends that the Court must assume
(for purposes of the motion to dismiss) that Bristol and Pfizer
sent the faxes, because the amended complaint alleges they did.
But that allegation is conclusory, he says; and Health One
otherwise alleges no facts to make plausible the assertion that
Bristol or Pfizer dispatched or otherwise caused the faxes to be
sent. Thus the claims were properly dismissed. And Health One's
argument as to its conversion claim is derivative of the
arguments rejected. Hence, the Judge needs not separately
address that claim.
For these reasons, Judge Kethledge affirmed the district court's
judgment.
A full-text copy of the Court's May 9, 2018 Opinion is available
at https://is.gd/0ruYYZ from Leagle.com.
ON BRIEF: Phillip A. Bock -- phil@classlawyers.com -- David M.
Oppenheim -- david@classlawyers.com -- BOCK, HATCH, LEWIS &
OPPENHEIM, LLC, Chicago, Illinois, for Appellant.
Debra Bogo-Drnst -- dernst@mayerbrown.com -- Michele Odorizzi --
modorizzi@mayerbrown.com -- Christopher J. Ferro --
cferro@mayerbrown.com --a MAYER BROWN LLP, Chicago, Illinois, for
Appellee Bristol-Myers Squibb Company.
Rebecca J. Schwartz -- rschwartz@shb.com -- Molly S. Carella --
mcarella@shb.com -- SHOOK, HARDY & BACON L.L.P., Kansas City,
Missouri, for Appellee Pfizer Inc.
MONTEREY FINANCIAL: Court Allows Filing of FAC in "Brinkley"
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In the case, TIFFANY BRINKLEY, on behalf of herself and others
similarly situated, Plaintiff, v. MONTEREY FINANCIAL SERVICES,
INC. and MONTEREY FINANCIAL SERVICES, LLC, Defendants, Case No.
16-cv-1103-WQH-WVG (S.D. Cal.), Judge William Q. Hayes of the
U.S. District Court for the Southern District of California
denied the Defendant's Motion for Sanctions, and granted the
Plaintiff's Motion for Leave to Amend and to File a First Amended
Class Action Complaint.
On Oct. 15, 2013, Brinkley initiated the action by filing a
Complaint Monterey Inc. and Doe Defendants in the Superior Court
of the State of California in and for the County of San Diego.
On April 1, 2016, Brinkley amended the Complaint to add Monterey
Financial Services, LLC as a Defendant.
The Complaint brings claims on behalf of Brinkley and a proposed
class of all persons who, while physically located or residing in
California and Washington, made or received one or more telephone
calls with Monterey, Inc. during the four year period preceding
the filing of the lawsuit and did not receive notice at the
beginning of the telephone call that their telephone conversation
may be recorded or monitored.
The Complaint brings claims for invasion of privacy, unlawful
recording of telephone calls, and unlawful and unfair business
acts. It alleges that from December 2012 through March 2013, and
specifically on Dec. 19, 2012 and again on Jan. 10, 2013, the
Plaintiff had telephonic communications with certain employees,
officers and/or agents of the Defendant. At no time during such
telephone conversations was the Plaintiff told that her telephone
conversations would be or may be recorded or monitored.
On Dec. 10, 2013, Monterey Inc. filed a motion to compel
arbitration of Brinkley's individual claims and dismiss
Brinkley's class claims. On April 7, 2014, the Superior Court
entered an Order granting Monterey, Inc.'s motion, ordering
Brinkley's individual claims to arbitration, and dismissing
Brinkley's class claims.
On May 29, 2014, Brinkley appealed the Superior Court's order to
the California Court of Appeal. On Nov. 19, 2015, the California
Court of Appeal entered an Order affirming the portion of the
Superior Court's order compelling the arbitration of Brinkley's
individual claims, reversing the portion of the Superior Court's
order dismissing Brinkley's class claims, and holding that the
entire matter should be sent to arbitration. Brinkley and
Monterey, Inc. subsequently waived their rights to arbitrate the
Plaintiff's Complaint and agreed to litigate the Plaintiff's
matter in Court.
On May 6, 2016, Monterey, Inc. and Monterey, LLC removed the
matter to the Court. On May 19, 2016, Brinkley filed a Motion to
Remand the Case to State Court which the latter granted on March
23, 2017. On April 4, 2017, the Defendants appealed the Order
granting the Motion to Remand to the U.S. Court of Appeals for
the Ninth Circuit which the Circuit Court granted on Nov. 15,
2017.
On May 13, 2016, Monterey, LLC filed a Motion to Dismiss and
Monterey, Inc. filed a Motion for Judgment on the Pleadings. On
June 6, 2016, Brinkley filed Memorandums in Opposition to the
Motion to Dismiss and the Motion for Judgment on the Pleadings.
On June 13, 2016, Monterey, LLC filed a Reply in Support of the
Motion to Dismiss and Monterey, Inc. filed a Reply in Support of
the Motion for Judgment on the Pleadings. On March 23, 2017, the
Court issued an Order denying the Motion to Dismiss and the
Motion for Judgment on the Pleadings.
On Oct. 6, 2016, Matthew Orr, the counsel for the Defendants,
provided Brinkley's counsel with a copy of an audio recording of
a call from Brinkley to Monterey, Inc. made on Dec. 19, 2012. On
the recording, a prerecorded voice states "Thank you for calling
Monterey Financial, your call may be monitored or recorded."
In December 2017, Brinkley sent Monterey, LLC interrogatories,
requests for documents, and requests for admission. Monterey,
LLC's responses were based upon the class period alleged in the
Complaint -- that is, Oct. 15, 2009 through Oct. 15, 2013.
On Jan. 8, 2018, U.S. Magistrate Judge William V. Gallo entered a
Scheduling Order Regulating Class Certification. The Scheduling
Order provided that any motion to amend the pleadings will be
filed by Feb. 16, 2018. The Scheduling Order also provided that
all fact discovery related to the class certification will be
completed by all parties by April 5, 2018, and that the parties
will designate their respective class certification experts in
writing by April 19, 2018. On March 14, 2018, the parties filed
a Joint Motion to vacate those deadlines, which the Magistrate
Judge granted that same day.
On Jan. 9, 2018, Monterey, LLC filed a Motion for Sanctions. It
moves the Court to sanction Brinkley and her counsel by
dismissing the Complaint and awarding it $50,000 in attorneys'
fees. Its Motion for Sanctions is based on the following
allegation in the Complaint that from December 2012 through March
2013, and specifically on Dec. 19, 2012, the Plaintiff had
telephonic communications with certain employees, officers and/or
agents of the Defendant. At no time during such telephone
conversations was the Plaintiff told that her telephone
conversations would be or may be recorded or monitored.
Monterey, LLC contends that this allegation lacks any evidentiary
support, citing a recording of a Dec. 19, 2012 call between
Brinkley and Monterey, Inc. on which a prerecorded voice states
"Thank you for calling Monterey Financial, your call may be
monitored or recorded."
On Jan. 29, 2018, Brinkley filed an Opposition to the Motion for
Sanctions. On Feb. 5, 2018, Monterey, LLC filed a Reply in
Support of its Motion for Sanctions.
On Feb. 16, 2018, Brinkley filed a Motion to Amend. Brinkley's
proposed First Amended Complaint brings claims on behalf of
Brinkley and a proposed class of all persons who, while residing
in California and Washington, made or received one or more
telephone calls with the Defendants from Oct. 15, 2009 through
the date of trial and did not receive notice at the beginning of
the telephone call that their telephone conversation may be
recorded or monitored. On March 12, 2018, Monterey, LLC filed an
Opposition to the Motion to Amend. On March 18, 2018, Brinkley
field a Reply in Further Support of the Motion to Amend.
Judge Hayes concludes that there is no basis for sanctioning
Brinkley for the conduct described in the Motion for Sanctions.
Orr provided Brinkley the recording of the Dec. 19, 2012 call on
Oct. 6, 2016, months after Brinkley filed the Memorandums
referenced in the Motion for Sanctions and years after Brinkley
filed the Complaint. Furthermore, Monterey, LLC seeks permission
to file the Proposed FAC, which does not reference the Dec. 19,
2012 call.
As to the Plaintiff's Motion to Amend, the Judge finds that the
proposed amendment to the Class Period will not cause the
Defendants to suffer prejudice that requires denying a motion to
amend. The Defendants' concern that allowing the Plaintiff's
proposed amendment to the Class Period would vastly expand their
potential liability only days before the current discovery cut-
off and only a few weeks before the current deadline to designate
class certification experts, was addressed by the Magistrate
Judge's Order vacating the deadlines for class discovery and the
designation of class experts. He says any time and expense that
the Defendants may have to spend responding to additional
discovery necessitated by the proposed amendment to the Class
Period does not support denying the Motion to Amend.
He also finds that Brinkley did not unduly delay filing the
Motion to Amend. Although the Motion to Amend was filed more
than four years after the date on which the Complaint was filed,
during that time motions concerning the Complaint were appealed
to and addressed by both the California Court of Appeals and the
United States Court of Appeals for the Ninth Circuit. In this
case, the Motion to Amend was filed before the deadline for
motions to amend.
For these reasons, Judge Hayes denied Monterey LLC's Motion for
Sanctions, and granted Brinkley's Motion to Amend. Brinkley may
file the Proposed FAC on or before May 18, 2018.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/Twc6n8 from Leagle.com.
Tiffany Brinkley, on behalf of herself and others similarly
situated, Plaintiff, represented by Christina E. Wickman --
christina@wickmanlaw.com -- Wickman & Wickman, Attorneys at Law,
Patrick N. Keegan -- pkeegan@keeganbaker.com -- Keegan & Baker,
LLP & Steven Allen Wickman -- steve@wickmanlaw.com -- Wickman and
Wickman.
Monterey Financial Services, Inc. & DOE No. 1 Monterey Financial
Services, LLC, Defendants, represented by Matthew Orr --
MORR@CALLJENSEN.COM -- Call & Jensen APC & William Paul Cole --
WCOLE@CALLJENSEN.COM -- Call & Jensen APC.
MYEXPERIAN INC: Response & Exhibits to "Vinsant" Cert. Bid Struck
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In the case, CHARLES VINSANT, Individually and on behalf of all
others similarly situated, et al., Plaintiffs, v. MYEXPERIAN,
INC., Defendant, Case No. 2:18-CV-02056 (W.D. Ark.), Judge P.K.
Holmes, III of the U.S. District Court for the Western District
of Arkansas, Fort Smith Division, struck the Defendant's response
and exhibits from the docket.
On April 13, 2018, the Plaintiffs moved to conditionally certify
a collective action under the FLSA. On May 11, 2018, the
Defendant filed a response in opposition, attaching several
exhibits. The Clerk will be directed to strike the response and
all exhibits.
The Defendant's response and exhibits total 855 pages. The first
exhibit to its response contains a cover page and 428 pages of
unpublished opinions, all accessed from an online database. The
Court, like the parties, is capable of finding the cited
unpublished opinions online. While the Defendant may have
intended the exhibit as a courtesy, the exhibit drives up the
costs of docket access, increases the amount of time that must be
spent by any person reviewing the motion, and dilutes the
Defendant's arguments in a sea of non binding precedent.
Additionally, the response brief exceeds the page limitations
imposed by the Court. The initial scheduling order entered in
the case explicitly directs the parties to limit motions,
responses, or briefs to 25 double-spaced pages. Its response
brief is 30 pages long, plus an additional page for the
certificate of service. The Defendant did not request permission
to exceed the page limits, and it is not clear that the excess
briefing is necessary. Judge Holmes will strike the response
from the docket and give the Defendant additional time to file a
complaint brief and any material exhibits.
The Judge notes that the second, third, and fourth exhibits to
the Defendant's response collectively compose the declaration of
Rhonda White and its exhibits. The declaration contains a cover
page and 7 substantive pages. The remaining 340 pages are
exhibits to the declaration and their cover pages. These
exhibits include policy excerpts, written agreements, pay stubs,
time records, and job descriptions. After a cursory review of
the Defendant's response, however, it appears that much of this
information is offered primarily in support of the Defendant's
position on the ultimate merits of this lawsuit, and is
immaterial to the motion. Certification of an FLSA collective
action often proceeds in two stages, and the initial
determination of whether putative collective action members are
similarly situated uses a fairly lenient standard.
As Defendant prepares to resubmit its response, the Judge says it
may be prudent for the Defendant to review its response and
exhibits to determine whether they are entirely relevant to the
issue of conditional certification of an FLSA collective action,
or whether at least some portions might be omitted as relevant
only to the merits. Overproduction might be an effective, though
inappropriate, strategy during discovery, but it is an especially
poor choice when briefing. The Court reads what the parties
file. The Court will read 855 pages in opposition to what
appears to be a relatively uncomplicated motion if it is
necessary to do so, but in light of this order, the Defendant
should have an opportunity to reconsider whether it believes
everything it has filed is material.
For these reasons, Judge Holmes struck the Defendant's response
and exhibits from the docket. The Defendant's deadline to file a
response to the pending motion is extended to May 16, 2018.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/HyyIwD from Leagle.com.
Charles Vinsant, Individually and on Behalf of All Others
Similarly Situated, Tara Beal, Individually and on Behalf of All
Others Similarly Situated, Chelsea Dyer, Individually and on
Behalf of All Others Similarly Situated, Ashley Hamilton,
Individually and on Behalf of All Others Similarly Situated,
Antwan Hendry, Individually and on Behalf of All Others Similarly
Situated, Belinda Maxwell, Individually and on Behalf of All
Others Similarly Situated, Brittany Morris, Individually and on
Behalf of All Others Similarly Situated, Kimberly Roland,
Individually and on Behalf of All Others Similarly Situated &
Betty Fuller, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs, represented by Christopher Burks --
chris@sanfordlawfirm.com -- Sanford Law Firm, Josh Sanford --
josh@sanfordlawfirm.co -- Sanford Law Firm PLLC & Lydia Hicks
Hamlet -- lydia@sanfordlawfirm.com -- Sanford Law Firm PLLC.
MyExperian, Inc., Defendant, represented by Don A. Smith --
das.smcrh@mac.com -- Smith,Cohen & Horan, PLC & Eric Russell
Magnus -- magnuse@jacksonlewis.com -- JACKSON LEWIS LLP.
NATIONSTAR MORTGAGE: "Franchi" Seeks to Halt Sale to WMIH Corp.
---------------------------------------------------------------
Anthony Franchi, individually and on behalf of all others
similarly situated, Plaintiff, v. Nationstar Mortgage Holdings
Inc., Jay Bray, Robert Gidel, Roy Guthrie, Brett Hawkins, Michael
D. Malone, WMIH Corp., and Wand Merger Corporation, Defendants,
Case No. 18-cv-01170 (N.D. Tex., May 8, 2018), seeks to enjoin
defendants and all persons acting in concert with them from
proceeding with, consummating or closing the acquisition of
Nationstar Mortgage Holdings Inc. by WMIH Corp. and Wand Merger
Corporation, rescinding it in the event defendants consummate the
merger, rescissory damages, costs of this action, including
reasonable allowance for plaintiff's attorneys' and experts' fees
and such other and further relief under the Securities Exchange
Act of 1934.
Nationstar stockholders will be entitled to elect to receive
either $18.00 in cash or 12.7793 shares of WMIH common stock for
each share of Nationstar common stock they own.
Nationstar is a residential loan servicers servicing,
origination, and transaction based services related primarily to
single-family residences throughout the United States.
The complaint says the proxy statement filed omitted financial
projections and analyses performed by the company's financial
advisors, Citigroup Global Markets Inc. and PJT Partners LP and
failed to disclose earnings, interest, taxes, and depreciation
and amortization, discretionary cash flow and free cash flow.
Said disclosures provides stockholders with a basis to project
the future financial performance of a company, and allows
stockholders to better understand the financial analyses. Franchi
is a shareholder of Nationstar. [BN]
Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, PLLC
McKinney Avenue, Suite 700
Dallas, TX 75204
Tel: (214) 744-3000
Fax: (214) 744-3015 (fax)
Email: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
- and -
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
- and -
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
NEW STAR COFFEE: Oropeza Seeks to Recover Minimum and OT Wages
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MARTIN XOCHIMITL OROPEZA, individually and on behalf of others
similarly situated v. JOHN DOE CORP. (D/B/A NEW STAR COFFEE SHOP
AND DELI), DEREK PRATT, CARMEN ROMAN, and CIRILO ROMAN (A.K.A.
CIROLO), Case No. 1:18-cv-05747 (S.D.N.Y., June 25, 2018), seeks
to recover alleged unpaid minimum and overtime wages pursuant to
the Fair Labor Standards Act of 1938 and the New York Labor Law.
John Doe Corp., doing business as New Star Coffee Shop and Deli,
is a domestic corporation organized and existing under the laws
of the state of New York. The Individual Defendants serve or
served as owners, managers, principals or agents of the Defendant
Corporation.
The Defendants own, operate, or control a Coffee shop and deli,
located at 3150 Bainbridge Avenue, in Bronx, New York, under the
name "New Star Coffee Shop and Deli."[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
E-mail: Michael@Faillacelaw.com
NORTON HEALTHCARE: Court Vacates Summary Judgment in ERISA Suit
---------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, vacated the
judgment of the District Court granting Plaintiffs' Motion for
Summary Judgment in the case captioned ELIZABETH A. CLEMONS,
DAVID R. KHALIEL, and LARRY W. TAYLOR, on behalf of themselves
and all other similarly situated individuals, Plaintiffs-
Appellees/Cross-Appellants, v. NORTON HEALTHCARE INC. RETIREMENT
PLAN, Defendant-Appellant/Cross-Appellee, Nos. 16-5063, 16-5124
(6th Cir.).
Plaintiff-Retirees claim that Defendant Norton Healthcare, Inc.
Retirement Plan underpaid them under the terms of the plan. The
district court found that the plan was unambiguous in the
Retirees' favor. The district court adopted the Retirees'
formula for calculating damages, awarded pre-judgment interest at
a fixed rate, and entered a final judgment for the Retirees.
Collateral proceedings indicate that the total amount at issue is
between $60,000,000 and $70,000,000.
Norton disputes the district court's interpretation of the Plan,
the standard of review employed by the district court, class
certification, and the district court's adoption of the Retirees'
proffered damages formula.
The Sixth Circuit agrees with the district court on most issues.
However, because the Plan is ambiguous in one crucial respect and
may not comply with ERISA in another, the Sixth Circuit vacates
the district court's summary judgment order and remands for
further examination of those issues. Consequently, the Sixth
Circuit also vacates the district court's damages order,
including its certification of a class under Rule 23(b)(1)(A) and
(b)(2) during the damages stage.
The Sixth Circuit affirms the judgment of the district court. The
district court's order dismissing certain contract claims as
barred by the statute of limitations is reversed. Further, the
district court's order granting summary judgment to Plaintiffs is
Vacated In Part insofar as it (a) held that the plan
unambiguously subsidized early retirement; (b) held that the plan
required Norton to pay a lump sum including the value of sixty-
months-certain benefits; and (c) disposed of the actuarial-
equivalence issue. Consequently, the district court's damages
order is vacated -- including as it relates to class
certification at the damages stage -- and the case is remanded.
Among other things, the Sixth Circuit asked -- Is the Plan
language clear? If it is, the Court must enforce it, no matter
how unfair or bizarre it might seem to Norton or to the Retirees.
The Sixth Circuit holds that "[i]t is simply not our job to
rescue parties from the unintended consequences of complexity,
sloppy drafting, or bad negotiating." The time to close
loopholes is in the offices of transactional lawyers, not in the
courts fourteen years later, the Sixth Circuit points out.
To the extent that the Plan is truly ambiguous, Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), requires the
district court to defer to Norton's reasonable interpretation.
The Plan is ambiguous if it is susceptible to multiple reasonable
interpretations, not just because clever lawyers can disagree
over the meaning of terms. The district court held that the Plan
was unambiguous on all fronts, and for the most part, the Sixth
Circuit agrees. However, the Sixth Circuit thinks that the Plan
gives ambiguous instructions on one of the core disputes between
the parties -- whether or not the early retirement reducers apply
to these plaintiffs. It therefore concludes that it must vacate
the district court's holding on that issue and remand for a
Firestone analysis of Norton's proposed interpretation.
Although many different variables and formulas are involved,
calculating an individual's retirement benefit under the Plan
involves three steps. First, identify the applicable rules.
Second, use those rules to determine the individual's Monthly
Retirement Income (MRI), which is, essentially, the individual's
accumulated pension entitlement expressed as an amount per month.
Third, convert the MRI to the form of benefit selected by the
individual, one of several different annuities or a lump sum.
Both parties raise a host of arguments about interpreting
discrete sections of the Plan. However, no one in this litigation
has ever explained how the whole plan works, i.e., how to
calculate benefits from start to finish. This omission makes
their more nuanced arguments almost impossible to follow. The
Sixth Circuit thinks thus roadmap is the only logical starting
point.
The Court therefore vacates the district court's grant of summary
judgment and remand for further examination of the actuarial-
equivalence issue.
"This is not an easy case. We hope that our opinion today lends
some finality to the major legal issues presented by the parties.
To the extent that uncertainties remain, we reiterate the
importance of the judicial role under Firestone: Ask only if the
plan is ambiguous. If it is, Norton's decisions -- factual and
interpretive -- must stand unless they are arbitrary and
capricious," the Sixth Circuit states.
Helene N. White, Circuit Judge, concurred in part and dissented
in part.
A full-text copy of the Sixth Circuit's May 10, 2018 Opinion is
available at https://tinyurl.com/ybgmksu4 from Leagle.com.
ARGUED: Keith L. Pryatel, KASTNER WESTMAN & WILKINS, LLC, for
Appellant/Cross-Appellee.
Michael D. Grabhorn, GRABHORN LAW OFFICE, PLLC, for
Appellees/Cross-Appellants.
ON BRIEF: Keith L. Pryatel, Kenneth M. Haneline, KASTNER WESTMAN
& WILKINS, LLC, Lira A. Johnson -- lira.johnson@dinsmore.com --
Michael P. Abate -- michael.abate@dinsmore.com -- DINSMORE &
SHOHL LLP, Louisville, Kentucky, for Appellant/Cross-Appellee.
Michael D. Grabhorn, Andrew M. Grabhorn, GRABHORN LAW OFFICE,
PLLC, William T. Payne -- WPAYNE@FDPKLAW.COM -- Joel R. Hurt --
JHURT@FDPKLAW.COM -- FEINSTEIN DOYLE PAYNE & KRAVEC, Pittsburgh,
Pennsylvania, for Appellees/Cross-Appellants.
PERFECT DEED: "Antonaccio" Suit Seeks to Recover Unpaid Overtime
----------------------------------------------------------------
Dominic Antonaccio, on behalf of himself and others similarly
situated v. Perfect Deed Homes, LLC, Case No. 5:18-cv-00313 (M.D.
Fla., June 22, 2018), seeks to recover unpaid overtime
compensation under the Fair Labor Standards Act.
The Plaintiff was hired by Defendant as a construction worker
around January 2016.
The Defendant is a Florida Limited Liability Company with an
office based in Marion County Florida. The Defendant has been
building and constructing residential homes throughout Marion
County, Florida. [BN]
The Plaintiff is represented by:
Robert S. Norell, Esq.
ROBERT S. NORELL, P.A.
300 N.W. 70th Avenue, Suite 305
Plantation, FL 33317
Tel: (954) 617-6017
Fax: (954) 617-6018
E-mail: rob@floridawagelaw.com
PFIZER INC: Lipitor Suit Remanded to State Court
------------------------------------------------
The United States District Court for the Central District of
California, Southern Division, granted Plaintiffs' Motion to
Remand the case captioned IN RE LIPITOR, Case No. CV 18-01725-
CJC(JPRx) (C.D. Cal.), to state court.
This action involves 156 lawsuits filed in California state court
by more than 4,300 Plaintiffs who allege that use of the drug
Lipitor caused them to suffer from Type II diabetes. This was
Pfizer's second removal of many of the lawsuits to federal court.
Pfizer claims that since the Court remanded the lawsuits, new
developments have occurred that justify another removal of the
cases to federal court based on mass action jurisdiction. The
Plaintiffs contend that re-removal of the cases was improper
because a judge's sua sponte order can never constitute a
proposal for a joint trial, and even if a sua sponte order could
constitute a proposal for a joint trial, the orders at issue here
did not make such a proposal.
The Court finds that a state court's sua sponte order cannot
propose a joint trial to trigger mass action jurisdiction. The
Court's interpretation of a statute starts with the text. To
propose, in its ordinary sense, means to offer for consideration,
discussion, acceptance, or adoption. A judge's sua sponte order
does not make a proposal it does not make an offer to be accepted
or rejected. Instead, an order is a command or direction
authoritatively give. To say that a court order constitutes a
proposal distorts and unjustifiably broadens the straightforward
meaning of that word.
The Plaintiffs argue that the state court's sua sponte orders
here cannot confer mass action jurisdiction for a separate reason
they do not contemplate a joint trial.
The sequence of events that occurred prior to Pfizer's re-removal
of the cases demonstrates that the state court's orders to
coordinate the cases are not orders for a joint trial. Shortly
after this Court remanded the cases to state court. The
Plaintiffs repeatedly attempted to clarify that their desire to
coordinate their cases was for pretrial purposes only and not a
request for a joint trial. The Plaintiffs tried to amend the
procedure for joining the Joint Council Coordinated Proceeding
("JCCP") and when they failed on that front, the Plaintiffs tried
to coordinate the cases through notices of related cases. All
along, the Plaintiffs represented to Judge Carolyn Kuhl, the JCCP
court, that they wanted to avoid taking any action that could be
construed as a proposal for a joint trial.
Pfizer claims that, because Judge Kuhl granted coordination of
the cases pursuant to California Code of Civil Procedure section
404.1, which provides that actions can be coordinated for all
purposes, the cases were coordinated for purposes of trial. But
the Court finds that this argument invokes the California
procedural rule in a vacuum and ignores the series of events that
occurred before the state court. The mere presence of the phrase
for all purposes in the rule providing for coordination does not
mean Judge Kuhl was reversing her prior position that a joint
trial of these coordinated cases was unlikely, and does not
constitute a voluntary and affirmative act necessary to make a
proposal.
Because the state court's orders coordinating the cases in this
action are not a proposal for a joint trial, the Court does not
have subject matter jurisdiction under CAFA. Accordingly,
Plaintiffs' motion to remand is granted.
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/ybo7hhz5 from Leagle.com.
Alida Adamyan, an individual, Plaintiff, represented by Baharak
Dejban, Khorrami Boucher LLP, Gary Karbis Daglian --
gary@daglianlaw.com -- Daglian Law Group, Helen E. Zukin --
zukin@kiesel.law -- Kiesel Law LLP, Paul R. Kiesel --
kiesel@kiesel-law.com -- Kiesel Law LLP, Raymond Paul Boucher --
ray@boucher.la -- Boucher LLP, Ari Scott Friedman --
afriedma@robinscloud.com -- Heard Robins Cloud LLP & Charles G.
Orr, The Mulligan Law Firm, pro hac vice.
Asmik Adetyan, an individual, Kreda Atoyan, an individual, Rosie
Babikian, an individual, Dora Bagdasaryan, an individual, Ovsanna
Chalaganyan, an individual, Khatun Doganyan, an individual,
Galane Gevorkian, an individual, Heghine Ghukasyan, an
individual, Ozhen Guymjyan, an individual, Karine Israelyan, an
individual, Astkhik Khodagholian, an individual, Marieta
Matevosyan, an individual, Lusin Minasian, Karine Nalbandyan,
Nara Ohanyan, Mariam Rumelyan, Mehri Shahmoradian, Violet
Tatooskhoygani, Gaynee Varderessian, Orjen Vartanian, Lucia
Danielyan, an individual, Narmine Gevondian, an individual, Anait
Keioglian, an individual, Lida Mkrtchyan, Anahit Shekherdemian,
Arevik Torosyan, Susanna Yeghiazaryan, Mariya Zatikyan, Ovsanna
Malyan, an individual & Seda Voskanian, Plaintiffs, represented
by Baharak Dejban, Khorrami Boucher LLP, Gary Karbis Daglian,
Daglian Law Group, Helen E. Zukin, Kiesel Law LLP, Paul R.
Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Boucher LLP &
Charles G. Orr, The Mulligan Law Firm, pro hac vice.
Arpik Babakhani, an individual, Plaintiff, represented by Baharak
Dejban, Khorrami Boucher LLP, Gary Karbis Daglian, Daglian Law
Group, Helen E. Zukin, Kiesel Law LLP, Paul R. Kiesel, Kiesel Law
LLP, Raymond Paul Boucher, Boucher LLP, Eric William Gruenwald,
The Mulligan Law Firm & Charles G. Orr, The Mulligan Law Firm,
pro hac vice.
Pfizer Inc., Defendant, represented by Mark S. Cheffo-
markcheffo@quinnemanuel.com -- Quinn Emanuel Urquhart and
Sullivan LLP, pro hac vice, Marshall M. Searcy, III --
marshallsearcy@quinnemanuel.com -- Quinn Emanuel Urquhart and
Sullivan LLP & Joey Dean Horton -- jdhorton@quinnemanuel.com --
Quinn Emanuel Urquhart and Sullivan LLP.
McKesson Corporation, Defendant, represented by Emma E. Garrison
-- garrison@wtotrial.com -- Wheeler Trigg O'Donnell LLP.
Kaiser Permanente International, Defendant, represented by Sally
Hosn -- shosn@yangpc.com -, Yang Professional Law Corporation.
Greenstone LLC, f/k/a Greenstone Limited, Defendant, represented
by Mark S. Cheffo, Quinn Emanuel Urquhart and Sullivan LLP, pro
hac vice & Joey Dean Horton, Quinn Emanuel Urquhart and Sullivan
LLP.
Hiron Jones, Defendant, represented by Eric William Gruenwald,
The Mulligan Law Firm.
PHILLIPS 66: Court Grants Bid to Dismiss "Schweitzer" ERISA Suit
----------------------------------------------------------------
In the case, JEFFERY SCHWEITZER, JONATHAN SAPP, RAUL RAMOS, and
DONALD FOWLER, on behalf of the Phillips 66 Savings Plan and a
class of all others similarly situated, Plaintiffs, v. THE
INVESTMENT COMMITTEE OF THE PHILLIPS 66 SAVINGS PLAN, SAM FARACE,
and JOHN DOES 1-10, Defendants, Civil Action No. H-17-3013 (S.D.
Tex.), Judge Sim Lake of the U.S. District Court for the Southern
District of Texas, Houston Division, granted Defendants The
Investment Committee of The Phillips 66 Savings Plan and Sam
Farace's Motion to Dismiss Plaintiffs' Class Action Complaint.
Plaintiffs Schweitzer, Sapp, Ramos, and Fowler, bring the action
pursuant to Sections 404, 405, 409, and 502 of the Employee
Retirement Income Security Act ("ERISA"), on behalf of the
Phillips 66 Savings Plan and a class of similarly situated
participants in the Plan whose retirement assets were invested in
the "ConocoPhillips Stock Fund" and the "ConocoPhillips Leveraged
Stock Fund" through the Plan during the period from May 2, 2012,
to the date of judgment in the action against the Defendants, the
Committee, individual members of the Investment Committee, John
Does 1 through 10, and Farace, the Plan's Financial
Administrator.
Phillips 66 was incorporated in Delaware in 2011 as a wholly
owned subsidiary of ConocoPhillips Corp. On April 30, 2012,
Phillips 66 was spun-off from ConocoPhillips and became a
separate, independent company. As a result of the spinoff
approximately 12,000 former ConocoPhillips employees became
Phillips 66 employees. Phillips 66 established the Plan on May
1, 2012, for Phillips 66 employees in connection with the
spinoff.
The Plan is an employee benefit plan within the meaning of ERISA
Sections 3(3) and 3(2)(A), 29 U.S.C. Section 1002(3) and
1002(2)(A). The participants designate the manner in which
amounts allocated to their accounts will be invested in an array
of investment funds. ConocoPhillips employees are not eligible
to participate in the Plan.
Assets of Phillips 66 employees who were former ConocoPhillips
employees that were held in participant accounts under the
ConocoPhillips Savings Plan were transferred to the Phillips 66
Plan. Included among the assets transferred from the
ConocoPhillips Plan to the Phillips 66 Plan were shares of
ConocoPhillips stock. The shares were originally contributed by
ConocoPhillips to an employee stock ownership plan ("ESOP") and
held in the ConocoPhillips Funds of the ConocoPhillips Plan.
After the spinoff the shares became part of the ConocoPhillips
Funds in the Phillips 66 Plan. The ConocoPhillips Funds invested
exclusively in ConocoPhillips stock. The ConocoPhillips Funds
were closed to new investments after the spinoff, but
participants of the Phillips 66 Plan could "exchange out of the
funds at any time."
The Board of Directors of Phillips 66 appointed the the
Committee. The Committee is a named fiduciary with respect to
the general administration of the Plan having all powers
necessary or desirable to discharge the duties relating to the
administration of the Plan as are delegated to it by the Plan and
Trust Agreements. Defendant Farace is the Plan Financial
Administrator who will be a fiduciary and will have
responsibility to manage and control the assets of the Plan in
accordance with the terms of the Plan.
The Plaintiffs allege that the Defendants breached their
fiduciary duties of diversification and prudence by retaining the
ConocoPhillips Funds in the Plan after the spinoff because the
ConocoPhillips stock no longer qualified as an "employer
security" under ERISA.
The Defendants move to dismiss the Plaintiffs' claims for failure
to state a claim under Rule 12(b)(6). They do not dispute the
Committee's status as a fiduciary of the Plan or Farace's status
as the Plan Administrator and named fiduciary within the meaning
of ERISA. They argue that they are exempt from ERISA's
diversification requirement because the ConocoPhillips shares
retain their character as employer securities after the spinoff
under ERISA Section 407(d)(1)8 and that the Plaintiffs have
failed to plead facts to state a claim for breach of the duty of
prudence and the duty to diversify.
Having carefully considered the parties' arguments and
authorities, Judge Lake concludes that shares of ConocoPhillips
stock are not employer securities and that the Defendants are
therefore not exempt from ERISA's diversification requirement
with respect to the ConocoPhillips Funds.
Because the Defendants did not mandate that participants' assets
remain in ConocoPhillips Funds and because the Plaintiffs do not
allege that the Plan's other investment options are not
diversified, the Plaintiffs fail to allege that the Plan was not
diversified on its face. The Plaintiffs have therefore failed to
state a claim for relief based on a duty to diversify. Also,
because the Plaintiffs have not identified any plausible special
circumstances undermining the market price as a measure of
ConocoPhillips' value, they fail to state a claim for breach of
the duty of prudence based on public information.
Because the Plaintiffs' allegations restate their claim for
breach of the duty of prudence based on public information,
Dudenhoeffer forecloses their claim. Therefore, the Plaintiffs
fail to state a claim for failure to engage in an adequate
process for evaluating the prudence of continuing to hold the
ConocoPhillips Funds.
Finally, because he has concluded that the allegations against
all the Defendants fail to state a claim for which relief may be
granted, the Judge concludes that the Plaintiffs have also failed
to state claims against Defendants for co-fiduciary liability.
For the reasons set forth, Judge Lake granted Defendants The
Investment Committee of The Phillips 66 Savings Plan and Farace's
Motion to Dismiss Plaintiffs' Class Action Complaint.
A full-text copy of the Court's May 9, 2018 Memorandum Opinion
and Order is available at https://is.gd/nyiwfN from Leagle.com.
Jeffery Schweitzer, Jonathan Sapp & Raul Ramos, Plaintiffs,
represented by Douglas P. Needham -- dneedham@ikrlaw.com -- Izard
Kindall et al, Gregory Yann Porter -- gporter@baileyglasser.com -
- Bailey Glasser LLP, Mark George Boyko --
mboyko@baileyglasser.com -- Bailey & Glasser LP, Mark Peter
Kindall -- mkindall@ikrlaw.com -- Izard Nobel et al, Robert A.
Izard, Jr. -- rizard@ikrlaw.com -- Izard Nobel et al & Thomas
Robert Ajamie -- tajamie@ajamie.com -- Ajamie LLP.
Donald Fowler, Plaintiff, represented by Thomas Robert Ajamie,
Ajamie LLP.
Zam Atiram, Consol Plaintiff, represented by Thomas E. Bilek, The
Bilek Law Firm LLP.
The Investment Committee of the Phillips 66 Savings Plan & Sam
Farace, Defendants, represented by Travis James Sales --
travis.sales@bakerbotts.com -- Baker Botts LLP, Michael Byron
Bennett -- michael.bennett@bakerbotts.com -- Baker Botts LLP &
Tina Q. Nguyen -- tina.nguyen@bakerbotts.com -- Baker Botts
L.L.P.
Phillips 66 Savings Plan Committee, Consol Defendant, represented
by Tina Q. Nguyen, Baker Botts L.L.P.
POLLO OPERATIONS: "Preman" Deal Prelim OK Bid Partly Granted
------------------------------------------------------------
In the case, MARK PREMAN, Plaintiff, v. POLLO OPERATIONS, INC.,
Defendant, Case No. 6:16-cv-443-Orl-41GJK (M.D. Fla.), Judge
Carlos E. Mendoza of the U.S. District Court for the Middle
District of Florida, Orlando Division, granted in part and denied
in part the Plaintiff's Unopposed Motion for Preliminary Approval
of Revised Class Action Settlement and Certification of
Settlement Class.
Magistrate Judge Gregory J. Kelly issued a Report and
Recommendation ("R&R"), in which he recommended that the motion
be granted in part. After a de novo review, and noting that the
parties filed an Amended Joint Notice of No Objection, Judge
Mendozat agreed with the analysis in the R&R. He entered a
preliminary settlement approval order consistent with the
recommendations set forth in the R&R. Therefore, he adopted and
confirmed the Report and Recommendation and made a part of the
Order.
The Judge granted in part and denied in part the Plaintiff's
Unopposed Motion for Preliminary Approval of Revised Class Action
Settlement and Certification of Settlement Class as set forth in
the R&R. He stayed all deadlines in the litigation, other than
those set forth in the Order.
He preliminarily approved the Revised Stipulation and Agreement
of Settlement, subject to further consideration at the Final
Settlement Approval Hearing. He preliminarily certified the
Settlement Class set forth in the Settlement, subject to further
consideration at the Final Settlement Approval Hearing.
The Judge appointed John A. Yanchunis, Sr., and Jonathan B. Cohen
as the Class Counsel; and Angeion Group or its successor as the
Settlement Administrator. He approved, as to form and content,
the proposed Notice.
A Final Settlement Approval Hearing will be held before the Court
on Aug. 9, 2018, at 9:30 a.m. On May 17, 2018, the Class Counsel
will cause the Settlement Administrator to mail to all Settlement
Class Members a copy of the Notice, substantially in the form as
provided to the Court. On May 22, 2018, the Class Counsel will
cause the Settlement Administrator to have the Notice posted on
the Settlement website. On Aug. 2, 2018, the Class Counsel will
cause to be served on the Defendant's counsel and filed with the
Court proof, by affidavit or declaration, of such mailing.
Any Settlement Class Member who objects to any aspect of the
Settlement, the plan of distribution, the motion for a service
award to the Class Representative, and/or the motion for
attorneys' fees, costs, and expenses to Class Counsel may appear
and be heard at the Final Settlement Approval Hearing; provided,
however, that any such person must submit a written notice of
objection on June 25, 2018.
On July 30, 2018, all papers in support of the Settlement, the
plan of distribution, the awarding of a service award, and any
application by the Class Counsel for attorneys' fees, costs, and
expenses will be filed and served. On the same date, the Class
Counsel will advise the Court as to the amount of time needed for
the Final Settlement Approval Hearing. On Aug. 6, 2018, all
reply memoranda in support of such motions will be filed and
served.
All reasonable expenses incurred in identifying and notifying
Settlement Class Members, as well as administering the Settlement
Fund, will be paid as set forth in the Settlement. In the event
the Court does not approve the Settlement, or it otherwise fails
to become effective, neither Plaintiff nor Class Counsel will
have any obligation to repay any amounts actually and properly
incurred or disbursed pursuant to the Settlement.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/JME7Vi from Leagle.com.
Mark Preman, o/b/o himself and all others similarly situated,
Plaintiff, represented by John Allen Yanchunis, Sr. --
jyanchunis@forthepeople.com -- Morgan & Morgan, PA, Jonathan
Betten Cohen -- jcohen@forthepeople.com -- Morgan & Morgan, PA &
Octavio Gomez, Morgan & Morgan, PA.
Pollo Operations, Inc., Defendant, represented by Jason L.
Margolin -- jason.margolin@akerman.com -- Akerman LLP, Jeffrey J.
Mayer -- jeffrey.mayer@akerman.com -- Akerman LLP, pro hac vice,
Kelly J.H. Garcia -- kelly.garcia@akerman.com -- Akerman LLP,
Lawrence D. Silverman -- lawrence.silverman@akerman.com --
Akerman LLP & Sandra Jessica Millor -- sandra.millor@akerman.com
-- Akerman LLP.
POPSUGAR INC: "Batra" Suit Alleges Copyright Act Violation
----------------------------------------------------------
Nita Batra, on behalf of herself and all others similarly
situated v. PopSugar, Inc., Case No. 4:18-cv-03752 (N.D. Calif.,
June 25, 2018), is brought against the Defendant for removal of
copyright management information in violation of the Digital
Millennium Copyright Act, violations of the Lanham Act and the
Unfair Competition Law.
The Plaintiff Nita Batra is an individual residing in Los
Angeles, California. She blogs at https://nextwithnita.com/, has
an Instagram feed at https://www.instagram.com/nextwithnita/ and
on the Instagram app, and a LIKEtoKNOW.it shoppable feed at
https://www.liketoknow.it/nextwithnita and on the LIKEtoKNOW.it
app. The Plaintiff is an Influencer.
The Defendant PopSugar, Inc. is a global media and technology
company. PopSugar claims that it reaches 50% of female
millennials in the United States and that it has more than 27
million fans and followers. After being founded in 2006,
PopSugar has greatly expanded and currently has over 450
employees. The company has three offices in the United States,
as well as an office in London. In 2007, the company purchased
ShopStyle, an online shopping platform that focuses on the latest
fashions. Upon information and belief, there is a substantial
overlap between the target audiences for ShopStyle and
LIKEtoKNOW.it. [BN]
The Plaintiff is represented by:
Jonathan M. Rotter, Esq.
Leslie F. Portnoy, Esq.
Stan Karas, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Tel: (310) 201-9150
Fax: (310) 201-9160
E-mail: info@glancylaw.com
PREMIER FINANCIAL: Chen Files Suit Over Pyramid Scheme
------------------------------------------------------
Rui Chen, Wenjian Gonzales, and all those similarly situated v.
Premier Financial Alliance, Inc., David Carroll, Jack Wu, Lan
Zhang, Bill Hong, Rex Wu, National Life Group Insurance Co., AJW
Production, LLC, and Does 1-10, Case No. 3:18-cv-03771 (N.D.
Calif., June 25, 2018), brings this case under California's
Endless Chain Scheme Law, California Seller Assisted Marketing
Plan Act, California's Unfair Competition Law, False Advertising
Law, Common Law Fraud, Unjust Enrichment, Conversion, and the
Federal Securities Law against all the Defendants for the
operation and promotion of an endless chain scheme.
The Plaintiffs are residents of the State of California and were
participants of the Defendants' scheme from June 25, 2014 until
the present.
The Defendant Premier Financial Alliance, Inc. is a suspended
California Corporation, Entity No. C2820332, that currently does
business at 8000 Marina Blvd., Ste. 100, Brisbane, CA 94005. PFA
may have privately organized under the Laws of Georgia as a
different or restructured entity. PFA and the other defendants
also maintain Corporate California Offices in Garden Grove, Brea,
San Francisco, Brisbane, Citrus Heights, San Jose, California,
and 10 Corporate Park Suite 120, Irvine, CA 92606, and in
Georgia.
The Defendant David Carroll is a conspirator who has a business
address at 4600 Colony Point, Suwanee, Georgia 30024. He is at or
near the top of the pyramid operated and promoted by the
Defendants, and he actively participates in, promotes, and
profits from PFA's pyramid scheme.
The Defendant Jack Wu is the "chairman" and ringleader of the
Defendants' scheme. He is at or near the top of the pyramid
operated and promoted by the Defendants, and he actively
participates in, promotes, and profits from Defendants' pyramid
scheme. Upon information and belief, Jack Wu resides in this
Judicial District.
The Defendant Rex Wu is a "field chairman" of the Defendants'
scheme. He is at or near the top of the pyramid operated and
promoted by the Defendants, and he actively participates in,
promotes, and profits from Defendants' pyramid scheme.
The Defendant Lan Zhang is one of the original members of the
Defendants' scheme. She is at or near the top of the pyramid
operated and promoted by the Defendants, and she actively
participates in, promotes, and profits from Defendants' pyramid
scheme.
The Defendant Bill Hong is conspirator in the illegal enterprise.
He is at or near the top of the pyramid operated and promoted by
the Defendants, and he actively participates in, promotes, and
profits from Defendants' pyramid scheme.
The Defendant AJW Productions, LLC is a Limited Liability
Company, which is the alter ego, owned and operated, by Jack Wu
to collect monies from the pyramid scheme. AJW is at or near the
top of the pyramid operated and promoted by the Defendants, and
he actively participates in, promotes, and profits from
Defendants' pyramid scheme.
The National Life Group Insurance Company, Inc. is a Texas
Corporation that panders the insurance products for sale to
participants in the scheme, with complete knowledge that the
Defendants have violated Department of Insurance Guidelines and
the anti-pyramid laws, but aided and abetted the conduct of
National's co-defendants. [BN]
The Plaintiffs are represented by:
Blake J. Lindemann, Esq.
LINDEMANN LAW FIRM, APC
433 N. Camden Drive, 4th Floor
Beverly Hills, CA 90210
Tel: (310)-279-5269
Fax: (310)-300-0267
E-mail: blake@lawbl.com
QUALITY CARE: Faces "Sanderson" Suit Over Merger With Welltower
---------------------------------------------------------------
TODD SANDERSON, Individually and on Behalf of All Others
Similarly Situated v. QUALITY CARE PROPERTIES, INC., MARK S.
ORDAN, JERRY L. DOCTROW, PAUL J. KLAASSEN, PHILIP R. SCHIMMEL,
KATHLEEN SMALLEY and DONALD C. WOOD, Case No. 8:18-cv-01912-TDC
(D. Md., June 25, 2018), is brought on behalf of the public
holders of the common stock of Quality Care for alleged
violations of the Securities Exchange Act of 1934 in connection
with the proposed merger between Quality Care and Welltower, Inc.
On April 25, 2018, the Board of Directors caused the Company to
enter into an agreement and plan of merger, pursuant to which
each share of Quality Care common stock will be exchanged for
$20.75 in cash.
Quality Care is incorporated in Maryland and maintains its
principal executive offices in Bethesda, Maryland. The
Individual Defendants are directors and officers of the Company.
Quality Care is one of the nation's largest actively managed real
estate companies focused on post-acute/skilled nursing and memory
care/assisted living properties. The Company's properties are
located in 29 states and include 257 post-acute/skilled nursing
properties, 61 memory care/assisted living properties, a surgical
hospital and a medical office building.[BN]
The Plaintiff is represented by:
John B. Isbister, Esq.
Daniel S. Katz, Esq.
TYDINGS & ROSENBERG LLP
One East Pratt Street, Suite 901
Baltimore, MD 21202
Telephone: (410) 752-9700
Facsimile: (410) 727-5460
E-mail: jisbister@tydingslaw.com
dkatz@tydingslaw.com
- and -
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 Third Ave., 26th Floor
New York, NY 10017
Telephone: (212) 983-9330
E-mail: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
QWEST CORP: Court OKs $275K Settlement in "Thompson" FLSA Suit
--------------------------------------------------------------
In the case, ALAN THOMPSON, on behalf of himself and all others
similarly situated, Plaintiff, v. QWEST CORPORATION dba
CENTURYLINK QC, and CENTURYTEL SERVICE GROUP, LLC, Defendants,
Civil Action No. 17-cv-1745-WJM-KMT (D. Colo.), Judge William J.
Martinez of the U.S. District Court for the District of Colorado
granted the Plaintiff's Unopposed Motion for FLSA Settlement
Approval.
This is a lawsuit under the Fair Labor Standards Act ("FLSA").
Thompson was an employee of Defendants under the title Video
Engineer II. He claims that he and his fellow Video Engineer II
employees ("VE2s") were required to work overtime but were not
paid time-and-a-half for those overtime hours. Four other VE2s
have also joined the lawsuit. The Plaintiff filed a Motion for
FLSA Conditional Collective Action Certification and Notice,
which the Defendants oppose.
Not long after the Defendants filed their opposition, the
Plaintiff filed a notice of settlement. A few weeks later, the
Plaintiff filed an Unopposed Motion for FLSA Settlement Approval,
which is the motion currently before the Court.
The basic terms of the Settlement Agreement are as follows:
i. A total payout from the Defendants of $275,000;
ii. Attorneys' fees to the Plaintiff's counsel of one-third
of that payout, i.e., $91,666.67;
iii. Expenses to the Plaintiff's counsel of $510;
iv. A service award to Thompson of $5,000;
v. Distribution of the remaining money, estimated to equal
no less than $175,323.33, among 28 VE2s, which includes Thompson,
the four other VE2s who also joined the suit, and 23 others that
could have opted in. Each of these individuals will receive a
minimum payment of $500, plus his or her share of the net
settlement amount calculated based on the individual's number of
work weeks since three years before this lawsuit started and the
individual's average weekly compensation during that time. On
average, each individual who accepts the settlement will receive
$6,262; and
vi. Any person who chooses to reject the settlement will
retain his or her own FLSA claims and can bring them in a
separate action.
Judge Martinez finds that the Proposed Settlement is fair and
equitable -- including as against VE2s who have not received
notice of this lawsuit and an opportunity to opt in -- largely
because it provides relief for a larger swath of time than the
statute of limitations would likely allow if the various
potential opt-in Plaintiffs were to join this lawsuit or commence
another one.
Under the circumstances, he finds, that the Plaintiffs' counsel's
222.2 hours expended, exclusive of hours spent since filing the
Settlement Motion and the hours counsel will spend in
administering the settlement, are reasonable in relation to a fee
of $91,666.67.
The Plaintiff's counsel represents that Thompson attached his
name to the federal lawsuit, making the public and his future
employers aware that he filed suit against his former employer.
His counsel further represents that Thompson reached out to the
other potential Plaintiffs, securing their participation; that he
reviewed and approved the Complaint and aided in the
investigation of claims; and that he "advocated for" the
potential collective action members "to achieve this Settlement."
The Judge finds that the foregoing justifies the $5,000 incentive
award.
Finally, he finds that the proposed form of notice is adequate.
Accordingly, Judge Martinez denied as moot the Plaintiff's Motion
for FLSA Conditional Collective Action Certification and Notice;
and granted the Plaintiff's Unopposed Motion for FLSA Settlement
Approval. He approved the Proposed Settlement in all respects,
including an award of $91,666.67 in attorneys' fees, $510 in
costs, and a $5,000 service award to Thompson. He approved the
proposed form of notice, as amended.
Pursuant to the Plaintiff's request, the Judge dismissed all
claims in the action. The parties will bear their own fees and
costs except as provided.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/0tPAbO from Leagle.com.
Alan Thompson, on behalf of himself and all others similarly
situated, Plaintiff, represented by Tracey F. George --
info@dgmlawyers.com -- Davis George Mook LLC & Rowdy Byron Meeks,
Rowdy Meeks Legal Group, LLC.
Qwest Corporation, doing business as & CenturyTel Service Group,
LLC, Defendants, represented by Amanda Elaine Colvin --
amanda.colvin@bclplaw.com -- Bryan Cave LLP & Charles Bernard
Jellinek -- cbjellinek@bclplaw.com -- Bryan Cave LLP.
REAL DETAIL: Thomas Sues to Recover Minimum Wage for Detailers
--------------------------------------------------------------
MARTIN THOMAS, individually and on behalf of all similarly
situated persons v. REAL DETAIL ENTERPRISES, INC. and MICHELLE
BABBITT, Case No. 1:18-cv-03047-MLB (N.D. Ga., June 25, 2018),
alleges that in violation of the Fair Labor Standards Act of
1938, the Defendants willfully failed to pay the Plaintiff and
similarly situated detailers minimum wage for all hours worked,
instead paying them solely by "piece rate" without adjustment for
the minimum wage.
Real Detail Enterprises, Inc., is a for-profit Georgia
corporation with its principal place of business in Douglasville,
Douglas County, Georgia. Michelle Babbitt is the Company's Chief
Executive Officer, Chief Financial Officer, and Secretary.
The Defendants provide car detailing services to car dealerships.
The Defendants contract with car dealerships to provide a team of
employees, generally holding the title of Detailer, to report to
the car dealership locations and provide car detailing services
onsite.[BN]
The Plaintiff is represented by:
Justin M. Scott, Esq.
SCOTT EMPLOYMENT LAW, P.C.
246 Sycamore Street, Suite 150
Decatur, GA 30030
Telephone: (678) 780-4880
Facsimile: (478) 575-2590
E-mail: jscott@scottemploymentlaw.com
RED EYE: Can't Compel Arbitration of "Davis" Suit
-------------------------------------------------
In the case, CIERRA DAVIS, on behalf of herself and on behalf of
other current and former employees similarly situated et al.,
Plaintiffs, v. RED EYE JACK'S SPORTS BAR, INC., a Nevada
Corporation doing business as Cheetahs Gentleman's Club, doing
business as Cheetahs Nightclub, et al., Defendants, Case No.
3:17-cv-01111-BEN-JMA (S.D. Cal.), Judge Roger T. Benitez of the
U.S. District Court for the Southern District of California
denied the Defendants' motion to compel arbitration, and granted
in part their request to stay the action.
Defendant Red Eye ("Cheetahs") is an all-nude strip club. It is
open seven days a week, from 12:00 p.m. to 2:00 a.m. At all
relevant times, Defendants Suzanne Coe and Rich Buonantony owned,
operated, controlled, and/or managed Cheetahs. Davis alleges Coe
and Buonantony are alter egos of Cheetahs, and that Buonantony is
also a managing agent of Cheetahs.
In June 2014, Cheetahs hired Davis as an adult entertainer or
dancer. She worked at Cheetahs about seven days per week, from
approximately 6:00 p.m. to 2:00 a.m. Davis alleges the
Defendants refused to compensate her as a dancer for her time
working at the club. Among other things, she never received
minimum wage or any other compensation from Cheetahs. She
generated income solely through tips and/or gratuities received
from patrons when she performed dance services.
In essence, Davis alleges the Defendants misclassified, and
continue to misclassify all of their employees who work as adult
entertainers, including Davis, as independent contractors. As a
result of this uniform misclassification, Davis and her fellow
dancers were denied minimum wages required under the FLSA and the
California Labor Code and, therefore, suffered injury and
incurred financial loss.
Davis also alleges Cheetahs wrongfully required her to pay a
daily house fee simply for showing up for work, wrongfully
"skimmed" her tips and gratuities by requiring her to pay fees or
tip-out a substantial percentage of all her daily earnings to the
DJ and/or 'door' and/or manager, and failed to provide her meal
and rest breaks. Approximately 20% of Davis' tips and gratuities
go back to Cheetahs.
Davis asserts these facts give rise to claims against the
Defendants for: (1) violation of 29 U.S.C. Section 206(a)
(failure to pay minimum wage under the FLSA); (2) violation of
multiple sections of the California Labor Code for failure to pay
wages, overtime, provide adequate rest and meal breaks, and
reimbursement of necessary work expenditures; and (3) conversion.
The Defendants move for arbitration on the grounds that Davis
agreed to submit the claims she alleges in the TAC to binding
arbitration. Davis responds that Ninth Circuit authority
requires the Court find the arbitration agreement upon which the
Defendants rely is invalid and unenforceable.
Before the Court is Cheetahs and Coe's motion to compel
arbitration and stay action as to Davis, which Defendant
Buonantony joins. In support of their motion to compel
arbitration, the Defendants submitted a copy of an "Entertainer
Performance Space Lease," which they represent Davis executed on
Nov. 18, 2013, and a copy of an "Arbitration Agreement," which
they represent Davis executed on May 3, 2015. The last page of
the "Entertainer Performance Space Lease" includes the
arbitration provision. The Defendant also requested a stay of
the action until the Supreme Court decides Morris v. Ernst &
Young, LLP.
Although the "Arbitration Agreement" contains a severability
clause, Judge Benitez agrees with Davis that the concerted action
waiver is not severable. As at least one district court in this
district, and district courts in other districts have concluded,
severing the concerted action waiver would amount to compelling
arbitration on a class wide basis. But the Supreme Court has
held that the FAA does not permit a district court to compel a
party to class arbitration unless there is a contractual basis
for concluding that the party agreed to do so. Thus, in light of
the "Arbitration Agreement's" explicit prohibition against
concerted activity, and the Defendants' apparent opposition to
the same, the Judge has no contractual basis for concluding the
Defendants and Davis agreed to submit to class arbitration.
Therefore, he finds the concerted action waiver renders the
entire arbitration agreement unenforceable.
The Judge agrees with the Defendants that a stay is warranted,
but only as to Davis' claims, not Plaintiff Moore or those
similarly situated that she purports to represent. Here, the
possible damage from the stay is even more minimal than in
Rodriguez because the Supreme Court's decision is imminent.
Moreover, the only harm Davis will likely suffer as a result of a
short stay is a delay in monetary recovery. In contrast, the
Defendants will certainly incur significant legal fees and costs
if forced to continue litigating Davis' claims in the Court. If
the Supreme Court reverses the Ninth Circuit's decision in
Morris, such fees and costs would largely constitute waste. So
too would the scarce judicial resources that continued litigation
would consume.
In sum, because the "Arbitration Agreement" only applies to
Davis' claims, the outcome of Morris only affects her claims, and
therefore the Defendants' request to stay is only granted as to
her claims.
For the reasons set forth, Judge Benitez denied the Defendants'
motion to compel arbitration, and granted in part their request
to stay. The Judge stayed Davis' claims pending the outcome of
Morris. He directed the Defendants to notify the Court within
five days of the Supreme Court's decision in Morris; their notice
may include a request to reconsider the Court's denial of their
motion to compel arbitration. Any such request is limited to
three pages, and must state the grounds upon which the request is
made. If the Defendants timely request reconsideration, Davis
has seven days from the date the request is filed to file a
response of up to three pages.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/t4P0u0 from Leagle.com.
Cierra Davis, on behalf of herself and on behalf of other current
and former employees similarly situated, Plaintiff, represented
by Alex M. Tomasevic -- atomasevic@nicholaslaw.org -- Nicholas
and Tomasevic LLP, Craig McKenzie Nicholas --
cnicholas@nicholaslaw.org -- Nicholas and Tomasevic, David Gerald
Greco -- dgreco@nicholaslaw.org -- Nicholas & Tomasevic, LLP &
Noam Glick -- noam@glicklawgroup.com -- Glick Law Group, P.C.
Amber Moore, on behalf of herself and on behalf of other current
and former employees similarly situated, Plaintiff, represented
by Alex M. Tomasevic, Nicholas and Tomasevic LLP, David Gerald
Greco, Nicholas & Tomasevic, LLP & Noam Glick, Glick Law Group,
P.C.
Red Eyed Jack's Sports Bar, Inc., a Nevada Corporation & Suzanne
Coe, an individual, Defendants, represented by Jason P. Saccuzzo
-- jsaccuzzo@vivolilaw.com -- Vivoli & Associates & Michael Louis
Federici -- mfederici@vivolilaw.com -- VIVOLI SACCUZZO, LLP.
Rich Buonantony, an individual, Defendant, represented by Steve
Hoffman -- shoffmanlaw@gmail.com -- Law Office of Steve Hoffman.
ROBERT BOSCH: Car Owners Asks Ct. to Compel Subpoena Compliance
---------------------------------------------------------------
Gary Koopmann, Timothy Kidd and Victor Pirnik, individually and
on behalf of all others similarly situated, Plaintiff, v. Robert
Bosch, LLC, Defendant, Case No. 18-cv-04065, (E.D. Mi., May 5,
2018), seeks an order compelling non-party Robert Bosch, LLC to
comply with the subpoena that Petitioners served Bosch on January
9, 2018 concerning their compliance with emissions regulations.
Plaintiffs allege that certain vehicles with electronic diesel
control (EDC) operate differently under vehicle testing
conditions than on-road driving conditions. Bosch tested,
manufactured and sold the EDC system used in the concerned
vehicles that surreptitiously evade emissions regulations via
"defeat devices." [BN]
Plaintiffs are represented by:
Sara Esther Fuks, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Tel: (212) 686-1060
Fax: (212) 202-3827
Email: sfuks@rosenlegal.com
- and -
Joseph Alexander Hood, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Tel: (212) 661-1100
Email: ahood@pomlaw.com
Robert Bosch LLC is represented by:
Matthew David Slater, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP (DC)
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Tel: (202) 974-1930
Fax: (202) 974-1999
Email: mslater@cgsh.com
- and -
Michael G. Brady, Esq.
William R. Jansen, Esq.
WARNER, NORCROSS
2000 Town Center, Suite 2700
Southfield, MI 48075-1318
Tel: (248) 784-5000
Email: mbrady@wnj.com
wjansen@wnj.com
ROBERTS AND CO: "Simental" Action Seeks Unpaid Overtime
-------------------------------------------------------
Ricardo Simental on his own behalf and on behalf of all others
similarly situated, Plaintiff, v. Roberts and Co., Inc. and
Robert McLelland, Defendants, Case No. 18-cv-01089 (D. Colo., May
7, 2018) seeks to recover unpaid overtime premiums, liquidated
damages, attorney fees and costs under the Fair Labor Standards
Act.
Roberts and Co., Inc. own and operate an insulation installation
enterprise where Simental handled spray foam insulation and
fiberglass insulations. Defendants allegedly avoided payment of
overtime premium wages by disguising regular rate hourly payments
for overtime hours worked as "bonus" payments. [BN]
Plaintiff is represented by:
Brandt Milstein, Esq.
MILSTEIN LAW OFFICE
595 Canyon Boulevard
Boulder, CO 80302
Tel: (303) 440-8780
Email: brandt@milsteinlawoffice.com
RP FIELD SERVICES: Misclassified Employees, Denied OT, Says Suit
----------------------------------------------------------------
Elizabeth Elinknan, individually and on behalf of all others
similarly situated, Plaintiff, v. RP Field Services, LLC and
National Creditors Connection, Inc., Defendants, Case No. 18-cv-
00108, (S.D. Ga., May 8, 2018), seeks to recover overtime pay,
minimum wages, liquidated damages and attorney fees pursuant to
the Fair Labor Standards Act.
Elinknan worked for RP Field Services as a Field Representative.
She claims to be misclassified as an independent contractor and
was denied overtime and/or minimum wage compensation in weeks
that she worked over 40 hours.
RP Field Services is an exclusive regional vendor for National
Creditors Connection, Inc. whose services include field contact
services, onsite inspections and letter deliveries in 16 states
throughout the United States.
National Creditors Connection provides field contact services
including face-to-face contact with customers/debtors), loss
mitigation, inspection and business process outsourcing. [BN]
Plaintiffs are represented by:
John T. Sparks, Esq.
AUSTIN & SPARKS, P.C.
2974 Lookout Place, N.E., Suite 200
Atlanta, GA 30305
Tel: (404) 869-0100
Fax: (404) 869-200
Email: jsparks@austinsparks.com
- and -
Michele R. Fisher, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
Email: fisher@nka.com
- and -
Philip Bohrer, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
Email: phil@bohrerbrady.com
SAFEMARK SYSTEMS: 11th Circuit Appeal Filed in Gorss Motels Suit
----------------------------------------------------------------
Plaintiffs Gorss Motels, Inc., and E&G, Inc., filed an appeal
from a court ruling in their lawsuit styled Gorss Motels, Inc.,
et al. v. Safemark Systems, LP, Case No. 6:16-cv-01638-GAP-DCI,
in the U.S. District Court for the Middle District of Florida.
As previously reported in the Class Action Reporter on June 7,
2018, the District Court denied the Plaintiffs' motion to certify
these two classes:
* Class A - 2013 Faxes:
All persons or entities successfully sent one or more
facsimiles on or about September 4, 2013, and September 6,
2013, stating Free month (average value $500 per 100 rooms,
Free Battery replacement every 18 months for initial term of
contract (3 times), and 1 Free Safe for Office; and
* Class B - 2015 Fax:
All persons or entities successfully sent a facsimile on or
about December 1, 2015, stating Attention owners and hotel
employees: Increase Cash Flow at NO COST! and Learn more
today at Safemark.com.
Gorss and E&G are, respectively, former and current franchisees
of Wyndham Hotel Group (Wyndham). They bring this putative class
action against Safemark regarding faxes sent by or on behalf of
Safemark in violation of the Telephone Consumer Protection Act of
1991.
The Plaintiffs allege that Safemark violated the TCPA by sending
the 2013 and 2015 Faxes to the Plaintiffs and other similarly-
situated entities.
The appellate case is captioned as Gorss Motels, Inc., et al. v.
Safemark Systems, LP, Case No. 18-12511, in the United States
Court of Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant's Certificate of Interested Persons was due on or
before June 29, 2018, as to Appellant E&G, Inc.; and
-- Appellee's Certificate of Interested Persons was due on or
before July 13, 2018, as to Appellee Safemark Systems,
LP.[BN]
Plaintiffs-Appellants GORSS MOTELS, INC., a Connecticut
corporation, individually and as the representative of a class of
similarly-situated persons; and E&G, INC., a West Virginia
corporation, individually and as the representatives of a class
of similarly-situated persons, are represented by:
Ross M. Good, Esq.
Glenn L. Hara, Esq.
Ryan Michael Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Rd., Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
E-mail: rgood@andersonwanca.com
ghara@andersonwanca.com
rkelley@andersonwanca.com
Defendant-Appellee SAFEMARK SYSTEMS, LP, is represented by:
Amy Baker, Esq.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
111 N Orange Ave., Suite 1200
Orlando, FL 32801
Telephone: (407) 203-7599
E-mail: amy.baker@wilsonelser.com
- and -
Joseph L. Francoeur, Esq.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
150 E 42nd Street
New York, NY 10017-5639
Telephone: (212) 490-3000
E-mail: joseph.francoeur@wilsonelser.com
- and -
Melissa Murphy-Petros, Esq.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
55 W Monroe Street, Suite 3800
Chicago, IL 60603
Telephone: (312) 704-0550
E-mail: melissa.murphy-petros@wilsonelser.com
SENTINEL OFFENDER: Court Certifies Non-Felon Probationers Class
---------------------------------------------------------------
The United States District Court for the Northern District of
Georgia, Atlanta Division, granted Parties' First Amended Joint
Motion for Conditional Certification of Settlement Class in the
case captioned STACEY ADAMS and JERRY SAINT VIL, on behalf of
themselves and others similarly situated, Plaintiffs, v. SENTINEL
OFFENDER SERVICES, LLC; MARK CONTESTABILE, Chief Business
Development Officer, Sentinel Offender Services, LLC; TIM LEWIS,
Vice President of Georgia Services, Sentinel Offender Services,
LLC; and STEVE QUEEN, Director of Services, Sentinel Offender
Services, LLC; Defendants, No. 1:17-cv-2813-WSD (N.D. Ga.).
Sentinel provides probation supervision services in non-felony
probation cases for courts throughout the State of Georgia. The
Amended Complaint alleges that the Defendants illegally collected
excessive or unauthorized fees that were not ordered by any
court, permitted by statute, or authorized by Sentinel's contract
with the Municipal Court of Atlanta. The Plaintiffs specifically
allege that fees collected by Defendants in certain instances
violated O.C.G.A. Section 42-8-103(b).
The parties move for certification of the following class for the
purposes of settling this action:
Individuals who meet the following criteria: (1) the person
was sentenced to pay only probation as defined by O.C.G.A.
Section 42-8-103 by the Municipal Court of Atlanta, Georgia on or
after July 1, 2015; and (2) the person was subsequently charged
and paid to Defendant Sentinel Offender Services, LLC at least
one enrollment fee of $20 and subsequent supervision fees of at
least $81 for a single sentencing event, defined as a single
sentencing order whether said order references multiple cases or
imposes consecutive sentences.
The Settlement Class consists of 2,352 individuals and the Court
finds that the numerosity requirement is satisfied.
The claims of the members of the Class are all based on the
common legal question of whether pay-only probationers were
charged and paid for allegedly unauthorized probation supervision
fees after the enactment of O.C.G.A. Section 42-8-103(b). The
Court finds that the commonality requirement of Rule 23(a)(2) is
satisfied.
The Plaintiffs and the other members of the Class all assert
claims based on the Defendants' alleged practice of charging pay-
only probationers fees in excess of that allowable by Section 42-
8-103(b). Although there are marginal factual differences among
particular Class Members, the "strong similarity of legal
theories" asserted by each Class Member is sufficient to satisfy
Rule 23(a)(3).
The Plaintiffs' claims arise of out of the same conduct as the
claims of the Settlement Class, and the Court finds that the
typicality requirement of Rule 23(a)(3) is satisfied.
Plaintiffs Stacey Adams and Jerry Saint Vil have no interests
antagonistic to those of the other Class Members, and the
Plaintiffs have vigorously prosecuted this action to date. The
Plaintiffs are represented by attorneys from the Southern Center
for Human Rights, who have litigated numerous class actions in
the state and federal courts, and by attorneys from Caplan Cobb
LLP, who have extensive experience in complex litigation. The
Plaintiffs, and their counsel, have fairly and adequately
protected the interests of the Settlement Class.
For these reasons, the Court finds that the adequacy of
representation requirement of Rule 23(a)(4) is satisfied.
In this case, common questions of law and fact predominate over
individualized issues. The Defendants supervised thousands of
pay-only probationers sentenced by the Municipal Court of Atlanta
and charged similar, if not identical, probation supervision fees
to probationers. The Plaintiffs assert that the imposition of and
the collection of certain of these fees was unlawful and
unconstitutional. If every Class Member brought an individual
action, each would attempt to prove essentially the same facts
and the Defendants would generally assert the same defenses.
The Court finds the proposed class here is sufficiently cohesive
to warrant adjudication by representation.
The Court also finds that the proposed class action is a fair and
superior method of adjudication because individual legal
representation is unlikely due to class members' lack of
resources and the modest damages involved.
This class action is also an efficient and superior method of
adjudication because the alternative requiring each Class Member
to adjudicate a separate claim would be repetitive, wasteful, and
an extraordinary burden on the courts.
Having found that the requirements of Rule 23(a) and 23(b)(3) are
satisfied, the Court grants the parties' motion to certify a
Settlement Class.
Accordingly, the Court certifies the Settlement Class as:
Individuals who meet the following criteria: (1) the person
was sentenced to pay only probation as defined by O.C.G.A.
Section 42-8-103 by the Municipal Court of Atlanta, Georgia on or
after July 1, 2015; and (2) the person was subsequently charged
and paid to Defendant Sentinel Offender Services, LLC at least
one enrollment fee of $20 and subsequent supervision fees of at
least $81 for a single sentencing event defined as a single
sentencing order whether said order references multiple cases or
imposes consecutive sentences.
A full-text copy of the District Court's May 10, 2018 Opinion and
Order is available at https://tinyurl.com/y8vybuhy from
Leagle.com.
Stacey Adams & Jerry Saint Vil, on behalf of themselves and
others similarly situated, Plaintiffs, represented by Akiva Hibel
Freidlin -- afreidlin@schr.org -- Southern Center for Human
Rights, Julia Blackburn Stone -- jstone@caplancobb.com -- Caplan
Cobb LLP, Michael A. Caplan -- mcaplan@caplancobb.com -- Caplan
Cobb LLP, Sarah E. Geraghty -- sgeraghty@schr.org -- Southern
Center for Human Rights & Ryan Primerano -- rprimerano@schr.org -
- Southern Center for Human Rights.
Sentinel Offender Services, LLC, Tim Lewis, Vice President of
Georgia Services, Sentinel Offender Services, LLC, Steve Queen,
Director of Georgia Services, Sentinel Offender Services, LLC &
Mark Contestabile, Chief Business Development Officer Sentinel
Offender Services, LLC, Defendants, represented by Gregory Keith
Hecht -- greg@hmhwlaw.com -- Hecht Walker, Attorneys at Law,
Jacob Michael Zicarelli -- jake@hmhwlaw.com -- Hecht Walker,
Attorneys at Law & Michael D. St. Amand -- mds@grsmb.com -- Gray
Rust St. Amand Moffett & Brieske, LLP.
SIMM ASSOCIATES: "Johnson" Disputes Vague Collection Letter
-----------------------------------------------------------
Adrian Johnson, individually and on behalf of all others
similarly situated, Plaintiff, v. Simm Associates, Inc., Oliphant
Financial, LLC and John Does 1-25, Defendants, Case No. 18-cv-
00696 (D. Del., May 8, 2018) seeks actual damages, statutory
damages, costs and attorneys' fees under the Fair Debt
Collections Practices Act.
Simm and Oliphant are debt collection agencies who attempted to
collect an obligation allegedly incurred by Johnson to Celtic
Bank via a collection letter that failed to identify who the
current creditor is and to whom the alleged debt is owed. [BN]
Plaintiff is represented by:
Antranig Garibian, Esq.
GARIBIAN LAW OFFICES
1800 JFK Blvd., Suite 300
Philadelphia, PA 19103
Tel: (215) 326-9179
Email: ag@garibianlaw.com
SOUTH BAY: Barahona Files Suit Over Deceptive Flyers
----------------------------------------------------
ANTHONY BARAHONA, an individual, on behalf of himself and all
others similarly situated v. SOUTH BAY N. PROPERTIES, LLC d/b/a
NISSAN OF SOUTH BAY; and DOES 1-50, inclusive, Case No. BC710742
(Cal. Super. Ct., Los Angeles Cty., June 25, 2018), arises out of
the Defendants' alleged fraudulent and deceptive practice of
sending flyers that contain a "SCRATCH, MATCH, & WIN!" offer, in
which Nissan South Bay offers certain prizes to flyer recipients,
who "scratch off' a five-digit combination corresponding to a
prize listed on the right of the flyer, with no intent to
actually honor the deal.
Nissan South Bay is a California limited liability company
registered as South Bay N Properties, LLC, with its principal
place of business located in Torrance, California. The Plaintiff
does not know the true names or capacities of the Doe Defendants.
The Company sells used automobiles.[BN]
The Plaintiff is represented by:
Michael Louis Kelly, Esq.
Behram V. Parekh, Esq.
Joshua A. Fields, Esq.
Connor M. Karen, Esq.
KIRTLAND & PACKARD LLP
1638 South Pacific Coast Highway
Redondo Beach, CA 90277
Telephone: (310) 536-1000
Facsimile: (310) 536-1001
E-mail: mlk@kirtlandpackard.com
bvp@kirtlandpackard.com
jf@kirtlandpackard.com
cmk@kirtlandpackard.com
SPOTIFY USA: Dearing Appeals Orders in "Ferrick" Suit to 2nd Cir.
-----------------------------------------------------------------
Tamara Dearing and Kristin Diable filed an appeal from a court
ruling in the lawsuit entitled Melissa Ferrick, et al. v. Spotify
USA Inc., Case No. 16-cv-8412, in the U.S. District Court for the
Southern District of New York (New York City).
Among the records filed in the Appellate Court are the District
Court's memorandum opinion & order, dated May 22, 2018; the
District Court's corrected [proposed] order awarding fees and
expenses dated May 22, 2018; and the District Court's judgment
dated May 22, 2018.
As previously reported in the Class Action Reporter, in early
August 2017, Spotify settled a major class action lawsuit to the
tune of $43.5 million. The lawsuit was filed by Melissa Ferrick
and David Lowery on behalf of songwriters and publishers
everywhere alleging that the music streaming site had made
thousands of songs available to stream without the proper
license.
On December 1, 2017, the final hearing was held and unfortunately
for Spotify, who pushed for final approval of the settlement
amount, two other rightsholders filed objections that the damages
for each composition streamed was insufficient. Under current
settlement terms, the writers of compositions that have been
streamed between zero and 100 times would receive a minimum
payment, while the rest of the money would be divided on a pro
rata basis.
The appellate case is captioned as Melissa Ferrick, et al. v.
Spotify USA Inc., Case No. 18-1702, in the United States Court of
Appeals for the Second Circuit.[BN]
Appellants Kristin Diable and Tamara Dearing are represented by:
George W. Cochran, Esq.
LAW OFFICES OF GEORGE W. COCHRAN
1385 Russell Drive
Streetsboro, OH 44241
Telephone: (330) 607-2187
E-mail: lawchrist@gmail.com
Plaintiffs-Appellees David Lowery, individually and on behalf of
himself and all others similarly situated; Victor Krummenacher,
individually and on behalf of themselves and all others similarly
situated; Greg Lisher, individually and on behalf of themselves
and all others similarly situated; and David Faragher,
individually and on behalf of themselves and all others similarly
situated, are represented by:
Mona Z. Hanna, Esq.
MICHELMAN & ROBINSON, LLP
17901 Von Karman Avenue
Irvine, CA 92614
Telephone: (714) 557-7990
Facsimile: (714) 557-7991
E-mail: mhanna@mrllp.com
Plaintiffs-Appellees Melissa Ferrick, Jaco Pastorius, Inc., and
Gerencia 360 Publishing, Inc., are represented by:
Geng Chen, Esq.
SUSMAN GODFREY LLP
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 729-2008
E-mail: gchen@susmangodfrey.com
Defendant-Appellee Spotify USA Inc., a Delaware corporation, is
represented by:
Grant T. Miller, Esq.
MAYER BROWN LLP
350 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 229-9500
E-mail: gtmiller@mayerbrown.com
SPRINT NEXTEL: "Sibley" Deal Prelim. OK Bid Sustained in Part
-------------------------------------------------------------
In the case, ROXIE SIBLEY, et al., Plaintiffs, v. SPRINT NEXTEL
CORPORATION, et al., Defendants, Civil Action No. 08-2063-KHV (D.
Kan.), Judge Kathryn H. Vratil of the U.S. District Court for the
District of Kansas sustained in part the Plaintiffs' Amended
Motion For Preliminary Approval Of Settlement filed March 7,
2018.
On Feb. 7, 2008, nine Plaintiffs -- former Sprint retail store
employees -- filed suit against their employers Sprint Nextel and
Sprint/United Management Co. The Plaintiffs alleged that when
Sprint acquired Nextel, it failed to properly integrate the
companies' payroll systems and routinely failed to pay
commissions that they had earned. Id. On behalf of a nationwide
class of similarly-situated Sprint employees, the Plaintiffs
asserted claims for violations of the Kansas Wage Payment Act
("KWPA") and breach of contract.
On Nov. 24, 2008, the Court certified a class pursuant to Rule
23(b)(3), Fed. R. Civ. P., composed of all persons nationwide who
worked for Sprint's retail stores since their merger with Nextel
in August of 2005 whose compensation was based in full or in part
on commissions. It also appointed Nichols Kaster, PLLP and
Stueve Siegle Hanson LLP as the class counsel.
On March 13, 2009, the Court directed the class counsel to mail
potential class members a letter to place them on notice of the
suit and their ability to opt out of it. On Jan. 15, 2014, the
parties stipulated that the class would be limited to employees
who held specific retail positions from Aug. 12, 2005 through
Sept. 30, 2009. In early 2014, the parties sent a letter which
described these limitations to individuals who had received the
2009 certification letter and to new potential class members.
Throughout the past 10 years, the parties have engaged in
extensive discovery and motion practice. Because the case
involved an extraordinary amount of highly technical data, the
Court appointed a Special Master and a Technical Advisor to
assist with pending motions.
The parties also engaged in protracted motion practice. Shortly
after the Plaintiffs commenced the action, Sprint successfully
moved the Court to dismiss some of the Plaintiffs' claims.
Sprint twice moved to decertify the class. When the Court
overruled its second motion for decertification, Sprint attempted
an interlocutory appeal, which the Tenth Circuit denied.
On Sept. 1, 2017, the Court ordered the parties to engage in
mediation before the Honorable Daniel D. Crabtree. On Jan. 8 and
9, 2018, approximately five months before trial, the parties
attended mediation sessions with Judge Crabtree. The parties did
not settle during these sessions, but on Jan. 18, 2018 -- with
the continued aid of Judge Crabtree -- the parties reached a
settlement which resolved the action.
On March 7, 2018, the Plaintiffs moved for preliminary approval
of their settlement agreement. On March 8, 2018, the Court held
a preliminary settlement approval hearing. On March 16, 2018,
the Plaintiffs filed a Supplemental Memorandum In Support Of
Plaintiffs' Motion For Preliminary Approval Of Settlement.
On April 5, 2018, the Court ordered the parties to submit
additional information and show cause why they should not revise
certain provisions of the proposed settlement. On April 16,
2018, the parties responded and submitted for preliminary
approval the revised settlement agreement. On May 2, 2018, the
Plaintiffs submitted a revised settlement agreement which
corrected typographical errors and revised one provision of the
prior draft.
The settlement agreement defines the settlement class as all
persons nationwide who did not opt out of the Class Litigation
and worked in Sprint's retail stores during the Class Period of
Aug. 12, 2005 through Sept. 30, 2009, including Retail Store
District Managers, Retail Store Managers, Assistant Retail Store
Managers, Lead Retail Consultants, Retail Consultants, Retail
Sales Representatives, and other retail employees (all of whom
held at least one of the job titles set forth in Exhibit A to the
Expert Stipulation entered at Docket No. 357-1 in the Class
Litigation) and whose compensation was based in full or in part
on commissions. The parties have agreed there are 34,909
individuals in the Settlement Class.
The settlement agreement provides that Sprint will pay a total
settlement amount of $30.5 million. From the settlement fund,
the class counsel will receive attorneys' fees up to $7.015
million and up to $7 million in litigation costs. After fees and
litigation and settlement costs, the class will receive
approximately 54% of the fund -- or $16,550,129.
The claims administrator will allocate the fund among class
members. Settlement Agreement. The administrator will allocate
each member a pro rata share of his or her calculated
underpayment. Under this allocation process, if Sprint underpaid
a class member by less than $25, he or she will receive a flat
payment of $25.
Certain class members will not receive allocations in the manner
described: (1) 4,482 class members who were correctly paid or
overpaid, (2) 274 class members who only worked in Period 65 and
(3) 2,787 class members for whom the record contains insufficient
data to calculate overpayment or underpayment. The parties refer
to these individuals as "insufficient data" class members. Under
the settlement agreement, insufficient data class members will
receive the average class allocation of approximately $541.73.
In addition to their settlement allocations, nine class
representatives will receive $10,000 service payments and 11
class members who prepared to testify at trial will receive
$3,000 service payments. Notably, none of the class
representatives are in the correctly paid or overpaid group,
Period 65 group or insufficient data group.
Within 30 days of preliminary approval, the class counsel will
mail postcards to class members and issue a national press
release concerning the settlement. Thirty days after the
administrator sends the postcards, the parties will provide the
Court a report which outlines the number of the class members who
updated their contact information, the number of notice cards
which were returned undeliverable or mailed to the wrong address
and other relevant data to confirm the adequacy of the address
records.
Within 45 days of mailing the postcards, the administrator will
send notices of settlement by first-class mail. Within 14 days
of mailing the notices of settlement, the class counsel will send
e-mail notice to the class members for whom they have e-mail
addresses. Further, the notice will inform class members that
they do not need to fill out a claim form or take any action to
receive their settlement check.
In general, the class members will have 60 days after the
administrator mails the first notice of settlement to file
objections or to opt out. After the Court grants final
settlement approval, the administrator will send settlement
checks which expire 90 days from the date of issuance.
After the initial check-cashing period, the administrator will
redistribute pro rata the value of uncashed checks and any
remaining settlement funds to participating class members. The
settlement funds remaining after this redistribution will be
donated to the cy pres beneficiary.
Pending before the Court is the Plaintiffs' Amended Motion For
Preliminary Approval Of Settlement. Their unopposed motion seeks
(1) preliminary approval of the parties' settlement agreement;
(2) approval of the parties' Stipulation For Dismissal Without
Prejudice And Revisions To Class List filed Oct. 24, 2017 and
Stipulation For Dismissal With Prejudice Of Certain Class Members
filed Oct. 24, 2017; (3) a finding that the Plaintiffs' requests
for attorneys' fees are fair and reasonable; (4) approval of the
Plaintiffs' requests for costs to the class counsel and service
awards to the class representatives and the class members who
prepared to testify at trial; and (5) a final settlement approval
hearing.
Judge Vratil finds that although the class counsel have
represented to the Court that they will submit an executed
agreement after preliminary approval, no parties have signed the
revised settlement agreement. She says she cannot merely presume
that the parties will approve the revisions and agree to the
revised settlement agreement. She also questions whether the
named class representatives adequately represent all of the
diverse interests of the class.
The fact that the current class representatives are similarly-
situated to members of the subgroups for portions of the class
period does not align their interests. In fact, the class
representatives' monetary interests conflict with that of the
correctly paid or overpaid and Period 65 class members because
every dollar allocated to the subgroups diminishes the remaining
settlement pool from which the class representatives and all
other class members will receive their pro rata allocation. The
Judge says the class counsel must identify class representatives
to represent the interests of these subgroups. Until that
occurs, the fourth factor does not support preliminary approval.
Subject to objections and the more searching inquiry at final
approval, the Judge finds that the service awards, the litigation
expenses, and the service awards appear to be reasonable. She
does not address the Plaintiffs' proposed class notice plan. On
May 21, 2018, the parties will file a motion for the Court to
approve the adequacy of its proposed notice plan.
Judge Vratil sustained in part the Plaintiffs' Amended Motion For
Preliminary Approval Of Settlement. She overruled as moot the
parties' Stipulation For Dismissal Without Prejudice And
Revisions To Class List and Stipulation For Dismissal With
Prejudice Of Certain Class Members in light of the parties'
pending settlement agreement.
The Judge directed that on May 21, 2018, the parties will file
(1) a motion for preliminary approval of a revised settlement;
(2) a motion for approval of the proposed class notice; (3) a
motion to join additional class representatives to represent the
class members who were correctly paid or overpaid, the class
members who only worked in Period 65 and the class members who
had insufficient data to calculate underpayment and (4) a joint
proposed amendment to the pretrial order which sets forth these
new claims.
A full-text copy of the Court's May 9, 2018 Memorandum and Order
is available at https://is.gd/rZ03R7 from Leagle.com.
David R. Cohen, (Special Master With ECF Filing and Electronic
Noticing), Special Master, pro se.
Roxie Sibley, individually and on behalf of a class of others
similarly situated, Plaintiff, represented by Alexander M. Baggio
-- abaggio@nka.com -- Nichols Kaster, PLLP, pro hac vice, George
A. Hanson -- hanson@stuevesiegel.com -- Stueve Siegel Hanson LLP,
Jonathan Moler -- jmoler@nka.com -- Nichols Kaster, PLLP, pro hac
vice, Michele Renee Fisher -- fisher@nka.com -- Nichols Kaster,
PLLP, pro hac vice, Paul J. Lukas -- lukas@nka.com -- Nichols
Kaster, PLLP, pro hac vice, Rebekah L. Bailey -- bailey@nka.com -
- Nichols Kaster, PLLP, pro hac vice & Stephen N. Six --
six@stuevesiegel.com -- Stueve Siegel Hanson LLP.
Jeanne Noel, individually and on behalf of a class of others
similarly situated, Ernesto Bennett, individually and on behalf
of a class of others similarly situated & Jamie Williams,
individually and on behalf of a class of others similarly
situated, Plaintiffs, represented by Alexander M. Baggio, Nichols
Kaster, PLLP, pro hac vice, George A. Hanson, Stueve Siegel
Hanson LLP, Jonathan Moler, Nichols Kaster, PLLP, pro hac vice &
Stephen N. Six, Stueve Siegel Hanson LLP.
Greg St. Julien, Tracie Hernandez, John Jasinski, Jay Richie &
Teisha King, Plaintiffs, represented by Alexander M. Baggio,
Nichols Kaster, PLLP, pro hac vice, George A. Hanson, Stueve
Siegel Hanson LLP, Jonathan Moler, Nichols Kaster, PLLP, pro hac
vice, Michele Renee Fisher, Nichols Kaster, PLLP, pro hac vice,
Paul J. Lukas, Nichols Kaster, PLLP, pro hac vice & Stephen N.
Six, Stueve Siegel Hanson LLP.
Sprint Nextel Corporation, a Kansas Corporation & Sprint/United
Management Company, a Kansas Corporation, Defendants, represented
by Brian P. Baggott -- brian.baggott@dentons.com -- Dentons US,
LLP, Christopher J. Willis , Rogers & Hardin LLP, pro hac vice,
Elise M. Bloom, Proskauer Rose LLP, pro hac vice, Gregory I.
Rasin -- grasin@proskauer.com -- Proskauer Rose LLP, pro hac
vice, Gregory T. Wolf -- gregory.wolf@dentons.com -- Dentons US,
LLP, Heather R. Hamilton, Sprint Corporation, Jacqueline M. Dorn
-- jdorn@proskauer.com -- Proskauer Rose LLP, pro hac vice, Mark
W. Batten -- mbatten@proskauer.com -- Proskauer Rose LLP, pro hac
vice, Nicole A. Eichberger -- neichberger@proskauer.com --
Proskauer Rose LLP, pro hac vice, Steven D. Hurd, Proskauer Rose
LLP, pro hac vice & Wade P.K. Carr -- wade.carr@dentons.com --
Dentons US, LLP.
Dr. Chen Song, (Neutral Technical Advisor) csong@nathaninc.com,
Miscellaneous, pro se.
STELLA ORTON: Must Respond to Pre-Cert Discovery Requests
----------------------------------------------------------------
In the case, IHOR TROSHIN, individually and on behalf of all
other persons similarly situated who were employed by THE STELLA
ORTON HOME CARE AGENCY, INC., Plaintiffs, v. THE STELLA ORTON
HOME CARE AGENCY, INC., Defendant, Docket No. 159312/2016 (N.Y.
Sup.), Judge Gerald Lebovits of the Supreme Court, New York
County, (i) granted in part and denied in part the Plaintiffs'
motion to compel the production of responses to the Plaintiffs'
First Pre-Class Certification Set of Interrogatory Demands and
Plaintiffs' First Pre-Class Certification Demand for the
Production of Documents and Things; and (ii) granted the
Plaintiffs motion for an extension of the pre-certification
discovery deadline and an adjournment for time to file their note
of issue and certificate of readiness.
Troshin brought the putative class action on behalf of himself
and on behalf of all other persons similarly situated who are
presently, or were formerly, employed by the Defendant to provide
home health aide services at the residences of the Defendant's
clients. Troshin worked for the Defendant from March 2004 until
January 2015 as a home care attendant. He worked 24-hour shifts
during his employment and did not "live in" the homes of the
clients.
While Troshin was on his shift, he was required to stay overnight
and be ready to aid the clients during all hours of his shift. He
alleges that he was only paid for approximately 12 out of the 24
hours in his shifts, and that he was not paid the applicable
overtime hourly rate, for hours worked over 40 in one week.
Among other allegations, Troshin claims that, in violation of the
New York Labor Law, he was obligated to purchase supplies used
during employment.
Troshin alleges that the action is properly brought as a class
action because the putative class members performed the same work
and were not properly compensated. The plaintiffs seek to
recover wages and benefits that they believe they are entitled to
pursuant to Labor Law Sections 190, 650, 651 and 663, 12 New York
Code of Rules and Regulations Sections 142-2.1, 142-2.2, 142-2.4,
142-2.10 and 142-2.14, and to recover damages for breach of
contract.
In June 2017, the Plaintiffs served their first pre-class
certification set of interrogatory demands on the Defendant.
According to them, although the Defendant has responded to some
of the discovery requests, the discovery provided is insufficient
for them to demonstrate the requirements of class action
certification. The Defendant has provided some information
regarding Troshin, but has not produced information concerning
the other potential class members.
Over the course of several months, the Plaintiffs sent the
Defendant two deficiency letters, listing the outstanding
discovery and why they believe that they are entitled to it. The
November 2017 letter further advised that the Plaintiffs are
missing discovery necessary to establish the commonality and
typicality of the class claims.
After a compliance conference held on Nov. 15, 2017, the
Defendant was ordered to produce a reasonable sampling of pre-
certification class discovery within 30 days. Nonetheless, the
Plaintiffs allege that they have not received any additional
discovery since July 31, 2017. They assert that the Defendant
has not offered any reasonable justification for its failure to
respond to the discovery request.
After the Defendant failed to respond to the two deficiency
letters and refused to provide any additional discovery at the
latest compliance conference held on Jan. 17, 2018, the
Plaintiffs commenced the instant action. They now move for an
order, pursuant to CPLR 3124, compelling the production of
responses to their pre-class certification discovery demands.
In addition to compelling the production of discovery, the
Plaintiffs are further requesting an extension for both the pre-
certification discovery and note of issue deadlines. They allege
that, due to the Defendant's deficiency in providing the
discovery requested, they have been unable to review the class
discovery documents. They also argue that they are unable to
complete a certificate of readiness in combination with the note
of issue representing that all discovery is complete.
In opposition to the Plaintiffs' motion, the Defendant states
that it responded to the Plaintiffs' discovery requests on July
31, 2017, by producing 560 pages documents related to the named
Plaintiff, and that it also provided records related to their
payroll procedures, among other things.
Judge Lebovits finds that the Plaintiffs have satisfied the
threshold requirement of demonstrating that the disclosure sought
is material and necessary for pre-class certification, and the
Plaintiffs' motion to compel will be granted. But the
Plaintiffs' discovery demands are unduly broad for the limited
purpose of allowing them access to proof of the existence of a
class.
In the exercise of the Court's discretion, the Judge granted in
part the Plaintiffs' motion to the extent of directing the
Defendant to produce the information and documents requested in
Interrogatory Demands numbered 4, 5, 6, 7, 9, 10, 11, 15, 17, 18,
19, 20, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 37, 40, 41,
and 44, and the associated documents, as set forth in Document
Demands numbered 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, and 32, for the
relevant time period. The Defendant will produce the discovery
demands to the Plaintiffs by June 8, 2018.
The Judge granted the Plaintiffs' requests for an extension of
time to complete pre-class certification discovery, to file the
note of issue and to file the certificate of readiness, are
granted: Pre-class certification discovery must be completed by
July 9, 2018, and the note of issue and certificate of readiness
must be filed by Sept. 28, 2018. The parties must appear for a
compliance conference on July 18, 2018, at 10:00 a.m. in Part 7,
room 345, at 60 Centre Street.
A full-text copy of the Court's May 11, 2018 Order is available
at https://is.gd/pDesD3 from Leagle.com.
SUTTER HOME: Cal. App. Affirms Dismissal of "Charles" Suit
----------------------------------------------------------
In the case, DORIS CHARLES et al., Plaintiffs and Appellants, v.
SUTTER HOME WINERY, INC., et al., Defendants and Respondents,
Case No. B275295 (Cal. App.), Judge Norman L. Epstein of the
Court of Appeals of California for the Second District, Division
Four, affirmed the trial court's judgment of dismissal based on
the sustaining of a demurrer to the Plaintiffs' putative class
action complaint under the California Safe Drinking Water and
Toxic Enforcement Act of 1986 ("Proposition 65").
Acting in their personal and representative capacities,
Plaintiffs Charles, Alvin Jones, Jason Peltier, and Jennifer
Peltier sued the Defendant manufacturers, distributors, and
retailers of "arsenic-contaminated wines." Many of the
Defendants were parties to the consent judgment in a previous
Proposition 65 class action lawsuit, Bonilla v. Anheuser-Busch.
In Bonilla, plaintiffs John Bonilla, Rafael Delgado, Jr., Jesse
Garrett, and Rachel Padilla filed a Proposition 65 class action
complaint on behalf of themselves and all similarly situated
California consumers of alcoholic beverage products manufactured,
distributed, and sold by Defendants Anheuser-Busch, LLC, Bacardi
U.S.A., Inc., Constellation Brands, Inc., Diageo North America,
Inc., Hangar 24 Craft Brewery, LLC, Heineken USA Inc., and
others. Their complaint alleged the Defendants failed to warn
consumers that their alcoholic beverage products contained
"chemicals" known to the state to cause cancer and reproductive
harm.
The Bonilla Defendants and opt-in Defendants stipulated to the
following terms:
a. The Releasees agreed to provide the safe harbor warning
for alcoholic beverages.
b. Acting in the public interest, the Bonilla plaintiffs
agreed that the consent judgment would constitute a full, final,
and binding resolution of any violation of Proposition 65 that
has been or could have been asserted in the public interest
against the Releasees arising out of exposure to the Covered
Products.
c. The Bonilla consent judgment defined Covered Products to
mean alcohol beverage products that expose consumers in the State
of California to chemicals listed by the State of California
pursuant to California Health & Safety Code section 25249.8,
including alcoholic beverages, when associated with alcohol
abuse, ethyl alcohol in alcoholic beverages, and ethanol in
alcoholic beverages.
The Plaintiffs initiated the action in March 2015, several months
after the Bonilla consent judgment was entered. The parties do
not dispute that Proposition 65 applies to the wines at issue in
the case, and the Defendants do not seek an exemption from the
warning requirement.
The original complaint alleges that by failing to warn consumers
of excessive levels of inorganic arsenic in their wines, the
Defendants are poisoning wine consumers in direct violation of
California law. However, there is no allegation of personal
injury or physical harm resulting from the consumption of
inorganic arsenic in the subject wines.
Proposition 65 is mentioned only once in the original complaint,
as the basis of the Unfair Competition Law claim. That claim
alleges the failure to provide a Proposition 65 warning for
exposure to inorganic arsenic constitutes misleading and
deceptive advertising. This theory is the basis of the statutory
claims for violation of the Consumer Legal Remedies Act ("CLRA")
and False Advertising Law ("FAL"), as well as claims for unjust
enrichment, breach of the implied warranty of merchantability,
and negligent misrepresentation.
The complaint seeks injunctive relief and restitution of the
purchase price paid for the arsenic-tainted wines from Jan. 1,
2011 to the present. It reserves the right to amend the CLRA
claim to seek monetary damages after notice is provided under
Civil Code section 1782.
On the same date the original complaint was filed, the Plaintiffs
mailed a 60-day Notice of Violation of Proposition 65 to the
Defendants and the requisite government agencies. This notice
was based on the Defendants' alleged failure to warn consumers of
exposure to excessive levels of inorganic arsenic in the subject
wines. Inorganic arsenic compounds is listed as a carcinogen,
and arsenic (inorganic oxides) is listed as a reproductive
toxicant on the State Internet site for Proposition 65.
Following expiration of the 60-day notice period, the Plaintiffs
filed the first amended complaint, the operative pleading, which
alleges a new claim for violation of Proposition 65. The
remaining causes of action in the amended complaint are similar
to those of the original complaint.
The amended complaint refers to the "no significant risk level"
for exposure to inorganic arsenic. This is the level of exposure
that OEHHA has determined will pose no significant risk of
cancer, and for inorganic arsenic (except through inhalation) it
is 10 micrograms per day. In anticipation of a defense to the
warning requirement based on the "no significant risk" level, the
Plaintiffs allege that a Proposition 65 warning must be given
whenever the toxic chemical is "added" to a food or beverage.
Based on information and belief, they allege that because
inorganic arsenic is added to the wines in order to filter,
clarify, fine, sweeten, color, stabilize or otherwise manipulate
the wine product before sale, there is no exception to the
warning requirement.
In their demurrer to the amended complaint, the Defendants argue
that arsenic is ubiquitous in air, soil, and water, and appears
in trace amounts in wine, beer, tea, fruits, rice, vegetables,
and grains. They contend there is no federal or state maximum
acceptable daily exposure level for inorganic arsenic in wine,
and that by providing the safe harbor warning for alcoholic
beverages, they are in full compliance with Proposition 65.
The Defendants assert that their compliance with all federal and
state labeling and warning regulations for alcohol is undisputed
in the complaint. They contend their compliance with these
regulations forecloses the Plaintiffs' claims for additional
disclosures.
In opposition to the demurrer, the Plaintiffs argue the safe
harbor warning for alcoholic beverages fails to provide a defense
to the complaint because the warning refers only to alcohol and
is silent about the presence of inorganic arsenic, which is
unsafe in any amount. They argue that a separate Proposition 65
warning for inorganic arsenic is necessary to allow consumers to
make an informed decision about whether or not to be exposed to
inorganic arsenic (e.g., whether they want to be poisoned).
The trial court sustained the demurrer. Reasoning that the safe
harbor warning for alcoholic beverages is deemed clear and
reasonable by the OEHHA, the trial court concluded no additional
warning is required. Finding the remaining claims to be
derivative of the Proposition 65 claim, the court sustained the
demurrer to the entire complaint without leave to amend. The
court entered a final order (judgment) of dismissal. This timely
appeal followed.
The Plaintiffs argue that providing the safe harbor warning for
general consumer products would result in a "stronger" warning
than the alcoholic beverage warning. Judge Epstein holds that
OEHHA does not require the Defendants to provide two separate
warnings for alcoholic beverages that contain an additional
listed chemical. In the new warnings that will take effect on
Aug. 30, 2018, OEHHA requires the disclosure of only one listed
chemical per health risk and allows each business to decide
whether to list additional chemicals in the warning they choose
to provide. Under the current regulatory scheme, the failure to
provide a separate arsenic warning is not a violation of the
regulations or the initiative itself. Whether an additional
warning should be required for inorganic arsenic in wine is a
matter for the Legislature or OEHHA to consider.
The Judge also disagrees with the Plaintiffs' argument that
Consumer Advocacy Group, Inc. v. ExxonMobil Corp. precludes the
res judicata defense. Consumer Advocacy held that the release in
the CBE action did not bar a subsequent action concerning
discharge of or exposure to lead. Here, the Bonilla consent
judgment included a release of future claims based on exposure to
a listed chemical in a Covered Product. Because this case falls
within the terms of that release, he says it is barred by the
previous consent judgment.
Finally, the Judge holds that the implementation of Proposition
65 is assigned to the lead agency, OEHHA, and it has authority to
determine the content and manner of displaying safe harbor
warnings. Because it is undisputed the Defendants provided the
safe harbor warning for alcoholic beverages, and because OEHHA
has deemed this to be a "clear and reasonable" warning, any
alleged deficiency in the warning message -- that it does not
disclose the presence of inorganic arsenic -- is not a violation
of the regulations. Instead, it is a matter for consideration by
OEHHA and the Legislature, rather than the court. Under the
circumstances in this case, the safe harbor warning for alcoholic
beverages provides a complete defense. Where the nature of the
Plaintiff's claim is clear, and under substantive law no
liability exists, a court should deny leave to amend because no
amendment could change the result.
For these reasons, Judge Epstein affirmed the judgment (order of
dismissal). The Defendants are entitled to their costs on
appeal.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/JLKwqc from Leagle.com.
Kabateck Brown Kellner, Brian S. Kabateck -- bsk@kbklawyers.com -
- and Drew R. Ferrandini; Esner, Chang & Boyer and Stuart B.
Esner -- sesner@ecbappeal.com -- for Plaintiffs and Appellants.
Jones Day, Frederick McKnight -- fmcknight@jonesday.com --
Charles H. Moellenberg, Jr. -- chmoellenberg@jonesday.com -- and
Kerry C. Fowler -- kcfowler@jonesday.com -- for Defendants and
Respondents Sutter Home Winery, Inc.; Rebel Wine Co., LLC; Don
Sebastiani & Sons International Wine Negociants, Corp.; Jean-
Claude Boisset Wines, USA, Inc.; and Raymond Vineyard and Cellar,
Inc.
Farella Braun + Martel, R. Christopher Locke -- clocke@fbm.com --
and C. Brandon Wisoff -- bwisoff@fbm.com -- for Defendants and
Respondents Treasury Wine Estates Americas Company; Treasury Wine
Estates Holding, Inc.; Beringer Vineyards; The Wine Group, Inc.;
The Wine Group, LLC; Golden State Vintners; Varni Brothers
Corporation; Fetzer Vineyards; and Bronco Wine Company.
O'Melveny & Myers, Dawn Sestito -- dsestito@omm.com -- and
Guianna Henriquez -- ghenriquez@omm.com -- for Defendant and
Respondent Trader Joe's Company.
Nixon Peabody and Bruce E. Copeland -- bcopeland@nixonpeabody.com
-- for Defendant and Respondent Constellation Brands U.S.
Operations, Inc.
Morrison & Foerster LLP and James M. Schurz -- jschurz@mofo.com -
- for Defendant and Respondent California Natural Products.
Larson O'Brien, Robert C. O'Brien -- robrien@larsonobrienlaw.com
-- Steven E. Bledsoe -- sbledsoe@larsonobrienlaw.com -- and
Steven A. Haskins -- shaskins@larsonobrienlaw.com -- for
Defendant and Respondent F. Korbel & Bros.
Maranga Morgenstern, Ninos Saroukhanioff -- info@marmorlaw.com --
and Robert A. Morgenstern for Defendants and Respondents Megan
Mason, Randy Mason and Oakville Winery Management Corp.
Winston & Strawn, Erin R. Ranahan -- eranahan@winston.com -- and
Drew A. Robertson for Defendants and Respondents Sonoma Wine Co.,
LLC; and Winery Exchange, Inc.
TD AMERITRADE: 8th Cir. Affirms SLUSA Preclusion in "Zola"
----------------------------------------------------------
The United States Court of Appeals, Eighth Circuit, affirmed the
District Court's judgment granting Defendant's Motion to Dismiss
the cases captioned Jay Zola; Jeremiah Joseph Lowney, Plaintiffs-
Appellants, v. TD Ameritrade, Inc.; TD Ameritrade Clearing, Inc.,
Defendants-Appellees, Tyler Verdieck, A California Citizen,
Individually, And On Behalf Of All Others Similarly Situated,
Plaintiff-Appellant, v. TD Ameritrade, Inc., a New York
Corporation, Defendant-Appellee, Michael Sarbacker, Individually
and on behalf of all others similarly situated, Plaintiff-
Appellant v. TD Ameritrade Holding Corporation; TD Ameritrade,
Inc.; TD Ameritrade Clearing, Inc.; Frederic J. Tomczyk; Paul
Jiganti, Defendants-Appellees, Nos. 16-3013, 16-3016, 16-3019
(8th Cir.).
The district court dismissed the complaints for failure to state
a claim after concluding that the claims were precluded by the
Securities Litigation Uniform Standards Act of 1998 (SLUSA).
The complaints alleged that TD Ameritrade breached its duty of
best execution when it routed client orders to buy and sell
securities to trading venues that paid TD Ameritrade top dollar
for its order flow.
Congress passed the Private Securities Litigation Reform Act
(PSLRA) in 1995 to curb perceived abuses of federal class-action
securities litigation by imposing special requirements and
obstacles on plaintiffs filing such actions. Congress enacted
SLUSA in 1998 to close the gap in PSLRA coverage and prevent
certain State private securities class action lawsuits alleging
fraud from being used to frustrate the objectives of the PSLRA.
SLUSA requires the district court to dismiss any covered class
action in which the plaintiff alleges a misrepresentation or
omission of a material fact in connection with the purchase or
sale of a covered security or that the defendant used or employed
any manipulative or deceptive device or contrivance in connection
with the purchase or sale of a covered security.
Misrepresentation or Omission Requirement
Zola and Verdieck argue that SLUSA does not preclude their claims
because their complaints did not allege any misrepresentation or
omission of a material fact or the use or employment of any
manipulative or deceptive device or contrivance.
The Court rejects Zola's argument that characterizing his
complaint as alleging an omission of material fact could recast
any breach of contract claim into a fraud claim. SLUSA does not
preclude genuine contract actions.
Zola's complaint does not allege a typical contract dispute.
There is a disconnect between the alleged breach TD Ameritrade's
failure to consider the factors set forth in the client agreement
and the damages sought disgorgement of profits based on TD
Ameritrade's misconduct (engaging in a secret scheme to increase
its profits at the expense of its clients). Fairly read, the
wrongdoing alleged in Zola's complaint is not the failure to
consider certain factors in directing orders, but rather the
covert placement of orders with venues that catered to high-
frequency traders, the Eighth Circuit holds.
The Court concludes that Zola has attempted to style his federal
securities claim as a breach of contract claim in an effort to
avoid the strictures of the PSLRA.
Accordingly, the judgment is affirmed.
A full-text copy of the Eighth Circuit's May 10, 2018 Opinion is
available at https://tinyurl.com/y758grkg from Leagle.com.
Thomas Harlan Dahlk -- Harlan@mdh-law.com -- for Defendant-
Appellee.
Matthew A. Lathrop, for Plaintiff-Appellant.
Eamon Paul Joyce -- EJOYCE@SIDLEY.COM -- for Defendant-Appellee.
Robert N. Hochman -- RHOCHMAN@SIDLEY.COM -- for Defendant-
Appellee.
Victoria H. Buter -- vicki.buter@kutakrock.com -- for Defendant-
Appellee.
Alex J. Kaplan -- AJKAPLAN@SIDLEY.COM -- for Defendant-Appellee.
A. Robert Pietrzak -- APIETRZAK@SIDLEY.COM -- for Defendant-
Appellee.
Jackie A. Lu, for Defendant-Appellee.
Jeffrey Craig Block -- jeff@blockesq.com -- for Plaintiff-
Appellant.
Joel A. Fleming -- joel@blockesq.com -- for Plaintiff-Appellant.
Jonathan Warren Muenz -- JMUENZ@SIDLEY.COM -- for Defendant-
Appellee.
TOUCHTUNES MUSIC: Cline Appeals Order and Judgment to 2nd Circuit
-----------------------------------------------------------------
Plaintiff Michelle Cline filed an appeal from the District
Court's order dated May 24, 2018, and judgment dated May 25,
2018, entered in the lawsuit styled Michelle Cline and Kelly
Engstrom, individually and on behalf of all others similarly
situated v. Touchtunes Music Corporation, Case No. 1:14-cv-04744,
in the U.S. District Court for the Southern District of New York
(New York City).
As previously reported in the Class Action Reporter, the lawsuit
is brought against the Defendant for alleged failure to disclose
that venue owners and operators maintain unfettered discretion to
skip purchased songs with no refund to the consumer or
restoration of credits, despite knowing whether a paid-for song
was actually played, failing to provide refunds or credit
restoration where possible, allowing songs to be purchased
despite knowing a jukebox is off or out-of-service, or that the
length of a queue will effectively prevent a paid-for song from
being played within a reasonable time.
Touchtunes Music Corporation is the largest in-venue interactive
music and entertainment platform, which represents itself to
offer "pay-for-play" digital jukebox services.
The appellate case is captioned as Cline v. Touchtunes Music
Corporation, Case No. 18-1756, in the United States Court of
Appeals for the Second Circuit.[BN]
Plaintiff-Appellant Michelle Cline, Individually and on behalf of
all others similarly situated, is represented by:
Jeffrey Michael Norton, Esq.
NEWMAN FERRARA LLP
1250 Broadway
New York, NY 10001
Telephone: (212) 619-5400
Facsimile: (212) 619-3090
E-mail: jnorton@nfllp.com
Defendant-Appellee TouchTunes Music Corporation is represented
by:
Jamie A. Levitt, Esq.
MORRISON & FOERSTER LLP
250 West 55th Street
New York, NY 10019
Telephone: (212) 682-9640
E-mail: jlevitt@mofo.com
TOWN SPORTS: Ryder Sues Over Illegal SMS Ad Blasts
--------------------------------------------------
Morgan Ryder, individually and on behalf of a class of others
similarly situated, Plaintiff, v. Town Sports International, LLC
and Town Sports International Holdings, Inc. (d/b/a New York
Sports Clubs, Boston Sports Clubs, Washington Sports Clubs and
Philadelphia Sports Clubs), Defendants, Case No. 18-cv-61018,
(S.D. Fla., May 7, 2018), seeks statutory damages along with an
injunction prohibiting Defendant from making telemarketing calls
from automatic telephone dialing systems pursuant to the
Telephone Consumer Protection Act.
Defendants own and operate health and fitness facilities in New
York, Boston, Washington, D.C. and Philadelphia. Ryder claims
that he still continued to receive text blasts despite opting
out. [BN]
Plaintiff is represented by:
Jibrael S. Hindi, Esq.
THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC
110 SE 6th Street
Ft. Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
Email: jibrael@jibraellaw.com
- and -
Scott D. Owens, Esq.
SCOTT D. OWENS, P.A.
3800 S. Ocean Dr., Ste. 235
Hollywood, FL 33019
Tel: (954) 589-0588
Fax: (954) 337-0666
Email: scott@scottdowens.com
- and -
Bret L. Lusskin, Esq.
BRET LUSSKIN, P.A.
20803 Biscayne Blvd., Ste. 302
Aventura, FL 33180
Tel: (954) 454-5841
Fax: (954) 454-5844
Email: blusskin@lusskinlaw.com
TRANS UNION: "Lenzy" Action Disputes Credit Report
--------------------------------------------------
Maleka Lenzy, individually and on behalf of all others similarly
situated, Plaintiff, v. Trans Union, LLC, Defendants, Case No.
18-cv-02677, (N.D. Cal., May 7, 2018), seeks damages arising from
violations of Fair Credit Reporting Act.
Trans Union and Equifax are consumer reporting agencies engaged
in the business of assembling, evaluating and disbursing
information concerning consumers for the purpose of furnishing
consumer reports. Bank of America sent the Plaintiff a 1099 for a
discharged debt and Lenzy paid taxes on this discharged debt as
income. It allegedly continued to report Lenzy's balance to Trans
Union and Equifax despite that fact that this balance is no
longer being legally owed. [BN]
Plaintiff is represented by:
Aryeh E. Stein, Esq.
MERIDIAN LAW, LLC
600 Reisterstown Rd, Ste. 700
Baltimore, MD 21208
Tel: (443) 326-6011
Fax: (410) 653-9061
Email: astein@meridianlawfirm.com
TRAVELERS HOME: Stechert Appeals E.D. Pa. Decision to 3rd Circuit
-----------------------------------------------------------------
Plaintiffs Kyle Stechert and Marie Stechert filed an appeal from
a court ruling in their lawsuit entitled Stechert, et al. v.
Travelers Home and Marine Insurance Co., et al., Case No. 2-17-
cv-00784, in the U.S. District Court for the Eastern District of
Pennsylvania.
As previously reported in the Class Action Reporter, the lawsuit
arises out of the Defendants' alleged policy and practice of
selling automobile liability insurance policies to consumers with
Extended Transportation Expense coverage, without disclosing to
the Plaintiffs and putative members of the Class that the
Defendants will terminate Extended Transportation Expense
benefits earlier than 30 days without conducting an analysis or
making a finding as to what time period is reasonably required to
replace the covered vehicle, as mandated by the policies.
The appellate case is captioned as Stechert, et al. v. Travelers
Home and Marine Insurance Co., et al., Case No. 18-2305, in the
United States Court of Appeals for the Third Circuit.[BN]
Plaintiffs-Appellants KYLE STECHERT and MARIE STECHERT, on behalf
of themselves and all others similarly situated, are represented
by:
Andrew P. Bell, Esq.
LOCKS LAW FIRM
801 North Kings Highway
Cherry Hill, NJ 08034
Telephone: (856) 663-8200
E-mail: abell@lockslaw.com
- and -
Marc P. Weingarten, Esq.
LOCKS LAW FIRM
601 Walnut Street
The Curtis Center, Suite 720 East
Philadelphia, PA 19106
Telephone: (215) 893-3404
E-mail: mweingarten@lockslaw.com
- and -
Richard M. Ochroch, Esq.
RICHARD M. OCHROCH & ASSOCIATES
318 South 16th Street
Philadelphia, PA 19102
Telephone: (215) 735-2707
Facsimile: (215) 790-0491
E-mail: rochroch@ochroch-law.com
Defendants-Appellees TRAVELERS HOME AND MARINE INSURANCE CO.,
TRAVELERS CO. INC., TRAVELERS PROPERTY CASUALTY and TRAVELERS
INDEMNITY CO. are represented by:
Brooks R. Foland, Esq.
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C.
100 Corporate Center Drive, Suite 201
Camp Hill, PA 17011
Telephone: (717) 651-3714
E-mail: BRFoland@mdwcg.com
- and -
Vlada Tasich, Esq.
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C.
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Telephone: (215) 575-2659
E-mail: vxtasich@mdwcg.com
UBER TECHNOLOGIES: Court Dismisses "Antman" Data Breach Suit
------------------------------------------------------------
The United States District Court for the Northern District
California, San Francisco Division, granted Defendant's Motion to
Dismiss the case captioned SASHA ANTMAN and GUSTAVE LINK,
individually and on behalf of others similarly situated,
Plaintiffs, v. UBER TECHNOLOGIES, INC. and Does 1-50, Defendants,
Case No. 15-cv-01175-LB (N.D. Cal.).
Uber moves to dismiss for lack of standing under Federal Rule of
Civil Procedure 12(b)(1) and for failure to plead plausible
claims under Rule 12(b)(6).
The named plaintiffs are Sasha Antman and Gustave Link. Both
worked as Uber drivers in California. They sue for Uber's failure
to protect their Personal Identifiable Information (PII)
including names, driver's license numbers, banking information,
Social Security Numbers, and other personal identifying
information (Private Information), and for failing to provide
timely and adequate notice to Plaintiffs and other Class members
that their Private Information had been stolen and precisely what
types of information were stolen.
The complaint alleges the following class claims: (1) failure to
implement and maintain reasonable security procedures to protect
the drivers' personal information and promptly notify affected
drivers, in violation of Cal. Civ. Code Sections 1798.81,
1798.81.5, and 1798.82; (2) unfair, fraudulent, and unlawful
business practices, in violation of California's Unfair
Competition Law, Cal. Bus. & Prof. Code Section 17200; (3)
negligence; and (4) breach of implied contract.
The Court finds that Mr. Link does not plausibly plead a credible
threat of identity theft that risked real, immediate injury. The
allegations in the TAC establish only that his driver's license
number and name were disclosed. These allegations do not
establish a material risk of ID theft or causation for the
reasons set forth in the court's earlier order, the Court
concludes.
In other cases that have gone forward at the pleading stage,
there were known data breaches of PII that plausibly risked fraud
and ID theft, even if it was unknown whether a bad actor obtained
the information.
Here, by contrast, the plaintiffs do not allege a disclosure
about their PII that plausibly suggests an immediate, credible
risk of harm. The name, driver's license, and for Mr. Antman his
bank account and routing information do not plausibly risk fraud
or identity theft for the reasons in the court's earlier orders
The plaintiffs nonetheless allege that Uber's pattern of
dishonesty means that it cannot be trusted. Allegations about
other lawsuits and what they may or may not show about Uber's
business practices do not affect the court's inquiry. The court's
inquiry is whether the plaintiffs plausibly plead that they were
personally injured or that there is a plausible risk of immediate
harm. The plaintiffs have not met this standard, and the court
dismisses the case for lack of Article III standing.
The plaintiffs fail to plead injury and causation. Actual injury
is required for Uber's alleged failure to protect their PII under
Cal. Civ. Code Sections 1798.81, 1798.81.5, and 1798.82. The UCL
claim also requires a party to show that he has suffered injury
in fact and has lost money or property as a result of the unfair
competition. If there is no predicate unlawful violation, there
is no UCL unlawful claim. By not plausibly pleading injury and
causation, the plaintiffs have not plausibly pleaded a negligence
claim. The plaintiffs have not plausibly pleaded a claim for
breach of an implied contract.
They allege only this: "Furthermore, the Plaintiffs and other
Class members were injured because they did not receive the
benefit of the bargain entailed in the implied contracts between
Plaintiffs and Defendant concerning security of their Private
Information." They plead no facts about the existence of an
implied contract, such as mutual assent and the other elements
necessary to establish an express contract.
Accordingly, the Court dismisses the complaint without leave to
amend.
A full-text copy of the District Court's May 10, 2018 Order is
available at https://tinyurl.com/yc247jym from Leagle.com.
Sasha Antman, individually and on behalf of all others similarly
situated & Gustave Link, Plaintiffs, represented by Theodore
Walter Maya -- tmaya@andootwolfson.com -- Ahdoot & Wolfson, P.C.,
Keith Andrew Custis -- keith@custis-law.com -- Ahdoot Wolfson,
P.C., Robert Ahdoot -- rahdoot@ahdootwolfson.com -- Ahdoot &
Wolfson, P.C. & Tina Wolfson -- twolfson@ahdootwolfson.com --
Ahdoot & Wolfson, P.C.
Uber Technologies, Inc., Defendant, represented by Michael Li-
Ming Wong -- mwong@gibsondunn.com -- Gibson, Dunn & Crutcher LLP,
James G. Snell -- JSnell@perkinscoie.com -- Perkins Coie LLP,
Jeana Marie Bisnar Maute -- JBisnarMaute@gibsondunn.com --
Gibson, Dunn and Crutcher LLP, Joshua Aaron Jessen --
JJessen@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Julie Erin
Schwartz -- JSchwartz@perkinscoie.com -- Perkins Coie, LLP,
Keith David Yandell -- yandell@uber.com -- Uber Technologies,
Inc., Priyanka Rajagopalan -- PRajagopalan@gibsondunn.com --
Gibson Dunn & Crutcher LLP & Thad Alan Davis --
tdavis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP.
Subscriber, Movant, represented by Martha A. Boersch --
mboersch@boerschshapiro.com -- Boersch Shapiro LLP.
Lyft Inc., Movant, represented by Rachael Elizabeth Meny --
rmeny@keker.com -- Keker, Van Nest & Peters LLP, Jennifer Ann
Huber -- jhuber@keker.com -- Keker & Van Nest LLP, Nicholas David
Marais -- nmarais@keker.com -- Keker, Van Nest & Peters LLP &
Thomas Edward Gorman -- tgorman@keker.com -- Keker, Van Nest &
Peters LLP.
UNDER ARMOUR: Conditional Certification of "Brianas" Class Denied
-----------------------------------------------------------------
In the case, STEPHEN BRIANAS, Plaintiff, v. UNDER ARMOUR, INC.,
Defendant, Civil No. RDB-17-02928 (D. Md.), Judge Richard D.
Bennett of the U.S. District Court for the District of Maryland
denied the Plaintiff's Motion for Conditional Certification.
The Defendant is a global manufacturer of athletic apparel
headquartered in Baltimore, Maryland. It maintains four separate
divisions: Brand House, Warehouse, E-Commerce, and Distribution
House. From 2011 until April 7, 2017, Brianas worked as an
allocation analyst in the Brand House division. He asserts that
his duties "centered on routine data entry" related to the
allocation of store inventory. He alleges that during his
tenure, one to three analysts also worked in Brand House.
The Defendant notes that the "Action Plan" for Mr. Brianas dated
Dec. 2, 2016 indicates multiple performance issues, which
resulted in a Performance Improvement Plan. On Feb. 1, 2017, the
Defendant approved a medical accommodation request by the
Plaintiff to allow him "flexibility to work from home." It
reports that it terminated the Plaintiff in April 2017.
On Oct. 3, 2017, Brianas has filed suit against the Defendant
under Section 16(b) of the Federal Fair Labor Standards Act of
1938, as amended, ("FLSA"); the Maryland Wage and Hour Law
("MWHL"); and the Maryland Wage Payment and Collection Law
("MWPCL"). He alleges that Under Armour violated these statutes
by classifying its analysts as salaried employees in order to
avoid overtime wage requirements.
The Plaintiff subsequently filed a Motion for Conditional
Certification supported by his Declaration executed on Nov. 8,
2017. Mr. Brianas specifically seeks to represent employees
"hired by Defendant to perform work as allocation analysts from
the period of September 2014 to the present." In the
Declaration, he asserts that under the alleged policy, the
Defendant did not pay analysts overtime when its demands required
them to work more than 40 hours per week. Specifically, Mr.
Brianas claims that analysts consistently worked as many as 60
hours each week.
The Defendant filed a Response supported by, inter alia,
affidavits from three Brand House allocation analysts contain
assertions at odds with Mr. Brianas' claims as to the scope of
their duties and the hours worked. It has filed an Answer
asserting various affirmative defenses, and discovery deadlines
have been stayed pending resolution of the Motion for Conditional
Certification.
At this stage, Judge Bennett finds that the Plaintiff has carried
his burden to show that analysts shared sufficiently similar job
duties.
He then turns to the burden to establish a common policy for the
purpose of conditional certification where the Plaintiff must
show that the analysts were subjected to similar working hour
requirements. He finds that the Defendant's factual submissions
bear on the question of whether analysts were subjected to a
common policy requiring them to work overtime. To the extent the
Plaintiff seeks to rely on the Defendant's affidavits as
"confirmation" of his overtime allegations, the affidavits
provide no such support. Contrary to these assertions, analysts
Tina Kier and Victoria Pappas declare that they did not regularly
work over 40 hours per week. While not required, Brianas'
failure to name a single analyst working similar hours
underscores the conclusory nature of his allegations.
Finally, the Defendant's factual submissions regarding Mr.
Brianas' Performance Improvement Plan and his medical
accommodation further undermine the Plaintiff's attempt to
preliminarily establish a policy common to all analysts. If
anything, the undisputed facts reveal a policy that analysts were
discouraged from working from home, and that the Plaintiff
benefited from a uniquely flexible schedule. The Plaintiff has
therefore failed to carry his burden to establish that the Court
should facilitate class-wide notice in order for the case to
proceed as a collective action.
For these reasons, Judge Bennett denied the Plaintiff's Motion
for Conditional Certification. Accordingly, the case will
proceed as an individual claim for overtime wages under the FLSA,
MWHL, and MWPCL.
A full-text copy of the Court's May 11, 2018 Memorandum Opinion
is available at https://is.gd/wKiXoM from Leagle.com.
Stephen Brianas, Individually and on Behalf of All Similarly
Situated Employees, Plaintiff, represented by Benjamin L. Davis,
III -- bdavis@nicholllaw.com -- Law Offices of Peter T. Nicholl &
Joseph E. Spicer -- jspicer@nicholllaw.com -- Law Offices of
Peter T. Nicholl.
Under Armour, Inc., Defendant, represented by Suzzanne W. Decker
-- sdecker@milesstockbridge.com -- Miles and Stockbridge PC &
Mary Claire Santana Blythe -- mblythe@milesstockbridge.com --
Miles & Stockbridge P.C..
US BANK: "Duncan" Suit Remains in Maryland District Court
---------------------------------------------------------
Judge Paul W. Grimm of the U.S. District Court for the District
of Maryland, Southern Division, denied the Plaintiffs' Motion to
Remand the case, WYATT J. DUNCAN, et al., Plaintiffs, v. U.S.
BANK NATIONAL ASSOCIATION, et al., Defendants, Case No. PWG-17-
3506 (D. Md.).
Plaintiffs Duncan and Tykecia McCormick-Duncan filed a class
action suit in the Circuit Court of Maryland for Prince George's
County for violations of the Fair Debt Collection Practices Act
("FDCPA"); Maryland Collection Agency Licensing Act ("MCALA");
Maryland Consumer Debt Collection Act ("MCDCA"); and Maryland
Consumer Protection Act ("MCPA"), as well as for unjust
enrichment, a declaratory judgment, and injunctive and ancillary
relief.
They sent a copy of the Complaint and Summons to Defendants U.S.
Bank, BWW Law Group, LLC, and Fawn Way Builders, LLC by certified
mail, return receipt requested. They did not, however, request
restricted delivery as required by the Maryland Rules. The U.S.
Bank and BWW Law Group received the Complaint and their
respective Summons on Oct. 20, 2017 and Fawn Way Builders
received its copy of the Complaint and Summons on Oct. 24, 2017.
On Nov. 27, 2017, the U.S. Bank removed the case to the Court on
the basis of federal question jurisdiction.
The Plaintiffs filed a Motion to Remand, arguing that removal was
untimely and the U.S. Bank lacked the consent of the other
Defendants.
By their own acknowledgement, the Plaintiffs did not comply with
the Maryland Rules for service. As such, Judge Grimm finds that
none of the Defendants was formally served. Therefore, the 30-
day removal period was never triggered, and Defendant U.S. Bank's
Notice of Removal was timely. And because the Plaintiffs did not
properly serve any Defendant, the U.S. Bank was not required to
receive consent from BWW Law Group or Fawn Way Builders when it
removed to the Court.
As he has found the Defendants' removal of the case proper, the
Judge holds that awarding costs and fees to the Plaintiffs would
be improper.
Accordingly, Judge Grimm denied the Plaintiffs' Motion to Remand.
In December 2017, the Defendants filed requests seeking
permission to file a motion to dismiss. The Judge will schedule
a telephone conference call to discuss these motions. If the
Defendants still intend to file motions to dismiss, they will be
done so as a consolidated motion, and a briefing schedule will be
set on the conference call.
A full-text copy of the Court's May 11, 2018 Memorandum Opinion
and Order is available at https://is.gd/CktnOb from Leagle.com.
Wyatt J. Duncan & Tykecia McCormick-Duncan, Individually on
behalf of themselves and all others similarly situated,
Plaintiffs, represented by Douglas Neil Gottron --
dplaza@morrispalerm.com -- Morris Palerm LLC & Terry Morris,
Morris Palerm LLC.
U.S. Bank National Association, on behalf of Ajax Mortgage Loan
Trust 2016-C, Mortgage-Backed Notes, Series 2016-C as Trustee &
BWW Law Group, LLC, Defendants, represented by Matthew D. Cohen,
BWW Law Group, LLC.
Fawn Way Builders, LLC, Defendant, represented by John Robert
Fischel, Brady, Fischel & Daily, LLC.
VIRGINIA BEACH: Court Conditionally Certifies "Andreana" Class
--------------------------------------------------------------
In the case, JOSEPH H. ANDREANA, On behalf of himself and all
others similarly situated, Plaintiff, v. VIRGINIA BEACH CITY
PUBLIC SCHOOLS and SCHOOL BOARD OF THE CITY OF VIRGINIA BEACH,
Defendants, Civil Action No. 2:17-cv-574 (E.D. Va.), Judge
Raymond A. Jackson of the U.S. District Court for the Eastern
District of Virginia, Norfolk Division, granted the Plaintiff's
Motion for Conditional Class Certification.
The case involves alleged discrimination on the basis of age
against the Virginia Beach Public City Schools and the School
Board of the City of Virginia Beach. The Plaintiff has been an
employee of Defendant for over 28 years and has primarily worked
as a computer resources specialist.
In 2015, Defendants reorganized these positions and informed
staff that the CRS positions would be reduced from 104 to 84, and
would be replaced with information technology specialist ("ITS")
positions. All CRS employees were required to reapply for
employment and the positions were also publicly posted. The
Plaintiff applied and was not selected for an ITS position.
On Aug. 13, 2015, the Plaintiff filed a complaint with the Equal
Employment Opportunity Commission for age discrimination against
the Defendant. Subsequently, on Nov. 7, 2017, the Plaintiff
filed the action under the Age Discrimination in Employment Act
("ADEA"), and seeks relief from disparate treatment, disparate
impact, and pattern and practice discrimination on the basis of
age.
He alleges that the Defendant's screening and evaluation process
for the ITS positions discriminated against candidates based on
age and did not evaluate applicants fairly. As such, older CRS
employees, including the Plaintiff, met all of the required
qualifications for the positions and had more experience, but
were systematically rejected in favor of younger and less
qualified applicants.
On Nov. 20, 2017, the Plaintiff filed a Motion for Conditional
Class Certification on behalf of himself and others similarly
situated. The Defendant filed a response in opposition and the
Plaintiff filed a reply. Additionally, the Defendant filed
Motions to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). He filed responses in opposition and the
Defendant filed replies. The parties have submitted memoranda in
support of their respective positions.
The Plaintiff moves the Court to conditionally certify the opt-in
class of all persons who worked for Defendants as Computer
Resource Specialists in 2015 and applied for Information
Technology Specialists positions in March 2015 but were not
selected. He argues that all the potential class members are
similarly situated because the Defendant employed them as CRS
employees during its reorganization of the CRS positions in March
of 2015. In support of the motion, he contends the potential
class members were: all over 40; subject to the reorganization of
the CRS positions in favor of ITS positions; were more
experienced in the relevant field than substantially younger
individuals chosen for the ITS positions; and were ultimately
forced to accept lower paying positions or retire because of the
Defendant's discrimination.
In opposition, the Defendant argues that the Plaintiff and the
potential class members are not similarly situated and do not
meet the standard for class certification. It presents a number
of arguments in support of its motion. To the Defendant, the
Plaintiffs proposed class is vague because it fails to define the
scope of potential members.
Judge Jackson finds that the Plaintiff has made the requisite
showing for conditional certification. He has sufficiently
demonstrated that the potential class members were victims of the
Defendant's common plan to eliminate CRS positions in favor of
ITS positions. Although the collective action may involve some
analysis of individual differences based on the nature of the
allegations, the Judge does not find these differences
substantial as to hinder the goals and judicial interests of a
collective action. In conclusion, having reviewed the Complaint,
the Motion, attached exhibits, and memoranda, he finds that the
Plaintiff has sufficiently carried the burden on conditional
class certification and the proposed class will be conditionally
certified.
The Judge next determines whether the Plaintiffs proposed notice
and consent to join is proper. Upon review, he finds that the
notice properly instructs potential members on the procedure for
joining the lawsuit and the potential implications of doing so.
It provides a description of the nature of the action, the
parties, and legal claims. The notice also properly informs
potential class members that Plaintiffs counsel is retained on a
contingency fee basis. The Judge also finds that disclosure of
telephone numbers along with names and addresses will expedite
the notice process. In accordance with the Court's discretion,
the Judge will facilitate notice of this collective action as it
deems appropriate.
For the reasons he stated, Judge Jackson granted the Plaintiff's
Motion for Conditional Class Certification.
Pursuant to 29 U.S.C. Section 216(b), he granted a Conditional
Class Certification and Notices under FLSA for the named
Plaintiffs to include the employees in the collective action of
all persons who worked for the Defendant as Computer Resource
Specialists in March 2015, were 40 years' of age or older at the
time, applied for Information Technology Specialists positions at
that time, and were not selected.
The Judge ordered that the Defendant will provide to the
Plaintiffs' counsel the names, last known addresses, home and
mobile phone numbers, and email addresses of all potential
members of the conditionally certified class within 15 days of
the date of the Order. The Plaintiffs' counsel will circulate
notices of pendency and consent to joinder to all potential
members of the conditionally certified class in the proposed
notices filed with the Court, and upon the Court's approval.
If necessary, he granted the parties leave for 90 days from the
date of the Order to conduct limited discovery solely on the
issue of 29 U.S.C. Section 216(b) class certification; the
parties will immediately confer and stipulate to any relevant
disputed facts in order to tailor the scope of and the need for
discovery; and the parties will also confer with the Court with
respect to the determination of scope and parameters of such
discovery.
Any consents to joinder in this action by which additional
persons join the litigation as the Plaintiffs under 29 U.S.C.
Section 216(b) must be filed with the Clerk of the Court no later
than 90 days after either the date that the Court approves the
for of notice to the class or the date that the Defendant
provides to the Plaintiffs' counsel the names, last known mailing
addresses, home and mobile phone numbers, and email addresses of
all the potential members of the conditionally certified class,
whichever date is later.
The parties will attend a settlement conference on a date to be
determined by the Court. The filing of all dispositive motions
will be stayed until further notice of the Court. The Clerk is
directed to provide a copy of the Memorandum Opinion and Order to
all parties.
A full-text copy of the Court's May 9, 2018 Memorandum Opinion
and Order is available at https://is.gd/8kDXhp from Leagle.com.
Joseph H. Andreana, Marie Gerdes, Philip M Hull & Lyn E Hebert,
Plaintiffs, represented by James Richard Theuer --
jim@theuerlaw.com -- James R. Theuer PLLC.
Virginia Beach City Public Schools & School Board of the City of
Virginia Beach, Defendants, represented by Ann Katherine Sullivan
-- slesoken@asksullivan.com -- Sullivan Law Group, P.L.C.,
Deborah Yeng Collins, Sullivan Law Group, P.L.C. & Melissa Morris
Picco, Sullivan Law Group, P.L.C..
WAFFLE HOUSE: "Burrell" Suit Alleges FLSA Violation
---------------------------------------------------
Milton Burrell, on his own behalf and on behalf of those
similarly situated v. Waffle House, Inc., Case No. 5:18-cv-00146
(N.D. Fla., June 21, 2018), is brought against the Defendant for
violation of the Fair Labor Standards Act.
The Plaintiff is an adult resident of Bay County, Florida and was
employed by Defendant as a cook from approximately January 16,
2016 to April 28, 2016.
The Defendant is a foreign profit corporation doing business in
Florida with its corporate headquarters located at 5986 Financial
Drive, Norcross, Georgia and operates restaurants in Bay County,
Florida and is registered to do business in Florida. [BN]
The Plaintiff is represented by:
Sean Culliton, Esq.
SEAN CULLITON, ESQ., LLC
150 John Knox Road
Tallahassee, FL 32303
Tel: (850) 385-9455
Fax: (813) 441-1999
E-mail: sean.culliton@gmail.com
WELLS FARGO: 11th Cir. Vacates Arbitration Denial in "Gutierrez"
----------------------------------------------------------------
The United States Court of Appeals, Eleventh Circuit, vacated the
District Court's denial of Defendant's Motion to Compel
Arbitration in the cases captioned DOLORES GUTIERREZ, on behalf
of herself and all others similarly situated, MARC MARTINEZ, on
behalf of himself and all others similarly situated, ALEX
ZANKICH, WILLIAM RUCKER, individually and on behalf of all others
similarly situated, Plaintiffs-Appellees, v. WELLS FARGO BANK,
NA, Defendant-Appellant. MELANIE L. GARCIA, CELIA SPEARS-HAYMOND,
as an individual and on behalf of all others similarly situated,
Plaintiffs-Appellees, v. WELLS FARGO BANK, NA, Defendant-
Appellant, Nos. 16-16820, 16-16823 (11th Cir.).
The Plaintiffs, all current or former checking account holders of
Wells Fargo or Wachovia (Wells Fargo), filed these class actions
in 2008 and 2009. The Plaintiffs allege that Wells Fargo
committed certain unlawful practices relating to the charging of
overdraft fees.
The District Court denied Wells Fargo's motion for arbitration,
holding that Wells Fargo had waived its rights to demand
arbitration as to the unnamed class members because it acted
inconsistently with its arbitration rights during its pre-
certification litigation efforts and significant prejudice would
result if the Court were to permit Wells Fargo to invoke
arbitration. Wells Fargo timely appealed.
The Eleventh Circuit holds that careful examination of its
precedent reveals that the purpose of the waiver doctrine is to
prevent litigants from abusing the judicial process. Acting in a
manner inconsistent with one's arbitration rights and then
changing course mid-journey smacks of outcome-oriented
gamesmanship played on the court and the opposing party's dime.
The judicial system was not designed to accommodate a defendant
who elects to forego arbitration when it believes that the
outcome in litigation will be favorable to it, proceeds with
extensive discovery and court proceedings, and then suddenly
changes course and pursues arbitration when its prospects of
victory in litigation dim. Allowing such conduct would ignore the
very purpose of alternative dispute resolution: saving the
parties' time and money.
The Court concludes that Wells Fargo did not act inconsistently
with its arbitration rights as to the unnamed Plaintiffs. Its
conduct with respect to the unnamed Plaintiffs differed starkly
from its conduct as to the named Plaintiffs. It stated expressly
in its response to the District Court's scheduling order that it
did not plan to seek arbitration with the named Plaintiffs, and
it thus joined other defendants in filing an omnibus motion to
dismiss the complaints.
In that same response, however, which it filed well before any
discovery had been conducted, Wells Fargo explained to the
District Court that it was not in a position to assert its
arbitration rights against the unnamed Plaintiffs but wished to
preserve those rights for when the matter became ripe for the
Court to consider them.
The District said that Wells Fargo could have moved to compel
arbitration at the outset as to the named Plaintiffs, which if
successful would have had the practical effect of extinguishing
the unnamed class members' claims.
The District Court further stated that Wells Fargo might have, at
the outset, put the parties and the Court on notice through
filing a conditional motion, like the one the Bank ultimately
filed years later in 2013, or some other clear statement of its
intent that it intended to request arbitration as to the unnamed
class members if and when the class was certified.
But the Eleventh Circuit has found no authority that requires a
party to file a conditional arbitration motion against possible
future adversaries at a juncture in which adjudicating, much less
exercising jurisdiction over, those claims is impossible in order
to avoid waiving its rights with regard to those parties.
Because the District Court lacked jurisdiction over these motions
until the class was certified, such a placeholder document could
only serve the purpose of putting the Court and the parties on
notice of the moving party's intent to invoke its arbitration
rights upon certification of the class. But that same purpose was
served by Wells Fargo's express reservation of its arbitration
rights as to future plaintiffs in response to the Court's
scheduling order.
Accordingly, the Eleventh Circuit concludes that Wells Fargo did
not act inconsistently with its arbitration rights, and,
consequently, it did not waive those rights.
The Eleventh Circuit accordingly vacates the District Court's
order and remands the case for further proceedings.
A full-text copy of the Eleventh Circuit's May 10, 2018 Opinion
is available at https://tinyurl.com/yd6tdupf from Leagle.com.
Emily Johnson Henn -- ehenn@cov.com -- for Defendant-Appellant.
Barry R. Davidson -- bdavidson@HuntonAK.com -- for Defendant-
Appellant.
Jamie Zysk Isani -- jisani@HuntonAK.com -- for Defendant-
Appellant.
Steve D. Larson -- slarson@nwmnlaw.com -- for Plaintiff-Appellee.
Stephen F. Rosenthal, for Plaintiff-Appellee.
G. Franklin Lemond, Jr. -- Stephen@WebbLLC.com -- for Plaintiff-
Appellee.
Edward Adam Webb, for Plaintiff-Appellee.
Bruce Stephen Rogow, for Plaintiff-Appellee.
Brian J. Meenaghan, for Plaintiff-Appellee.
Brian J. Meenaghan, for Defendant-Appellant.
Ronald E. Beard, for Defendant-Appellant.
WELLS FARGO: Bid to Strike Parts of "Perez" Suit Partly Granted
---------------------------------------------------------------
In the case, MITZIE PEREZ, et al., Plaintiffs, v. WELLS FARGO
BANK, N.A., Defendant, Case No. 17-cv-00454-MMC (N.D. Cal.),
Judge Maxine M. Chesney of the U.S. District Court for the
Northern District of California (i) granted in part and denied in
part the Defendant's Motion to Strike Portions of the Third
Amended Complaint and to Dismiss the Third Amended Complaint in
Part, and (2) denied as moot its Motion to Stay Discovery Pending
Final Disposition of Motion to Strike Portions of the Third
Amended Complaint and to Dismiss the Third Amended Complaint in
Part.
In the TAC, the Plaintiffs allege Wells Fargo outright refuses to
extend certain types of credit to non-United States citizens who
reside in the United States. Specifically, they allege: (1)
Perez, a Deferred Action for Childhood Arrivals ("DACA")
recipient, applied for a student loan, which Wells Fargo denied
due to her citizenship status; (2) Plaintiff Andres Acosta
applied for a commercial equipment loan, which, because he was
neither a U.S. citizen nor a permanent resident, Wells Fargo
denied and, additionally, cancelled a credit card" it previously
had issued to him; (3) Plaintiff Sergio Barajas applied for a
credit card and was told his application could not be considered
unless he had a green card, which he did not have; (4) Plaintiff
Teresa Diaz Vedoy applied for a personal loan and a credit card,
both of which Wells Fargo denied because she was not a permanent
United States resident; (5) Plaintiff Victoria Rodas applied for
a student loan, which Wells Fargo denied because she was not a
permanent resident; and (6) Plaintiff Samuel Tabares Villafuerte
applied for a student credit card, which Wells Fargo denied
because he was not a permanent resident. The Plaintiffs, who
seek to proceed individually and on behalf of a class, allege the
referenced denials violate 42 U.S.C. Section 1981, the Unruh
Civil Rights Act, and the California Unfair Competition Law.
The Plaintiffs bring their class allegations under Fed. R. Civ.
P. 23(a), (b)(2), and (b)(3) on behalf of four classes, each
consisting of all non-United States citizens who resided in the
United States and who held either (i) DACA status, (ii) temporary
protected status, or (iii) another legally protected status under
any United States visa at the relevant time they applied or
attempted to apply for credit from Wells Fargo from Jan. 30, 2013
through the date of final judgment in the action, defined as
follows:
a. All Covered Non-Citizen Residents who applied or
attempted to apply for a Wells Fargo student loan and did not
receive that loan during the Covered Period ("Student Loan
Class");
b. All Covered Non-Citizen Residents who applied or
attempted to apply for a Wells Fargo unsecured credit card and
did not receive that credit card during the Covered Period
("Credit Card Class");
c. All Covered Non-Citizen Residents who held a greater than
24% ownership interest in a business and applied or attempted to
apply for a Wells Fargo Business Direct credit product for that
business and did not receive that credit product during the
Covered Period ("Business Direct Class"); and
d. All Covered Non-Citizen Residents who applied or
attempted to apply for a Wells Fargo automobile loan, personal
loan, or home mortgage and did not receive those loans or
mortgages during the Covered Period ("A/P/M Class").
The Plaintiffs allege Perez and Rodas are members of the first
class, Barajas, Diaz Vedoy, and Tabares Villafuerte are members
of the second class, Acosta is a member of the third class, and
Diaz Vedoy is a member of the fourth class.
Before the Court are two motions filed by the Defendant: Motion
to Strike and Dismiss and Motion to Stay.
Wells Fargo argues the new class definitions are overly broad
and, consequently, the entirety of the class allegations should,
once again, be stricken. Additionally, Wells Fargo, after
pointing out there is no allegation that Plaintiff Diaz Vedoy
applied for an automobile loan or a home mortgage, argues Diaz
Vedoy's individual claims based on denials of such loans are
subject to dismissal for lack of standing and that all references
to such loans should be stricken from the definition of the A/P/M
class for lack of an appropriate class representative.
Judge Chesney finds that the TAC reflects a sufficiently close
fit between class definition and theory of liability. Although,
as noted, Wells Fargo contends some of the class members were
denied credit based on reasons other than their status as a
Covered Non-Citizen Resident, such argument is not appropriate
for consideration where the class allegations are challenged on
the face of the complaint. In effect, such argument is a denial
that Wells Fargo operates under the policy alleged in the TAC,
which argument goes to the merits, rather than the pleading, of
the Plaintiffs' claims. Accordingly, he says, to the extent
Wells Fargo seeks an order striking the class allegations in
their entirety, the motion will be denied.
The Judge also finds that the Plaintiffs have not alleged any
facts to support a finding that, one of the one hand, claims
based on automobile loans and home mortgages, which typically are
secured, and, on the other hand, claims based on credit cards and
personal loans, which typically are unsecured, are so
interrelated that the interests of the absent class members will
be fairly and adequately protected. Accordingly, to the extent
Wells Fargo seeks an order striking from the definition of the
A/P/M class the references to automobile loans and home
mortgages, he will grant the motion.
The Judge will afford plaintiffs one further opportunity to
amend. Contrary to Wells Fargo's argument, the Judge does not
find such leave to amend necessarily would be futile, as the
Plaintiffs, in their opposition, assert Diaz Vedoy did
unsuccessfully apply for an automobile loan, and, with respect to
home mortgages, it is not clear the Plaintiffs could not add a
named Plaintiff who unsuccessfully sought such a loan.
Finally, in its Motion to Stay, Wells Fargo seeks an order
staying all class discovery, pending resolution of its Motion to
Strike and Dismiss. As he sets forth, the Judge finds that the
Motion to Strike and Dismiss will be fully resolved by the
instant order, and, accordingly, the Motion to Stay will be
denied as moot.
For the reasons he stated, Judge Chesney granted in part and
denied in part Wells Fargo's Motion to Strike and Dismiss. To
the extent the motion seeks an order striking from the A/P/M
class definition all references to automobile loans and home
mortgages, he granted the motion and struck said references with
leave to amend. He denied in all other respects the motion. The
Plaintiffs' Fourth Amended Complaint, if any, will be filed no
later than May 25, 2018. He denied as moot Wells Fargo's Motion
to Stay.
A full-text copy of the Court's May 9, 2018 Order is available at
https://is.gd/14Ekl6 from Leagle.com.
Mitzie Perez, individually and on behalf of all others similarly
situated & California League of United Latin American Citizens,
Plaintiffs, represented by Jahan C. Sagafi --
jsagafi@outtengolden.com -- Outten & Golden LLP, Adam T. Klein --
ATK@outtengolden.com -- Outten & Golden LLP, pro hac vice, Andres
Jose Gallegos -- agallegos@maldef.org -- Mexican American Legal
Defense and Educational Fund, Daniel Stromberg --
dstromberg@outtengolden.com -- Outten Golden LLP, pro hac vice,
Joel Marrero -- jmarrero@maldef.org -- Mexican American Legal
Defense and Educational Fund, Michael N. Litrownik --
mlitrownik@outtengolden.com -- Outten and Golden LLP, pro hac
vice, Nantiya Ruan -- NR@outtengolden.com -- Outten & Golden LLP,
Ossai Miazad -- omiazad@outtengolden.com -- Outten and Golden,
Patrick David Lopez -- pdl@outtengolden.com -- Outten and Golden
LLP, Rachel Williams Dempsey -- rdempsey@outtengolden.com --
Outten Golden LLP, Relic Sun -- rsun@outtengolden.com -- Outten
and Golden LLP & Thomas Andrew Saenz, Mexican American Legal
Defense and Educational Fund.
Andres Acosta, Victoria Rodas, Samuel Tabares Villafuerte, Sergio
Barajas & Teresa Diaz Vedoy, Plaintiffs, represented by Patrick
David Lopez, Outten and Golden LLP, Andres Jose Gallegos, Mexican
American Legal Defense and Educational Fund, Daniel Stromberg,
Outten Golden LLP, pro hac vice, Joel Marrero, Mexican American
Legal Defense and Educational Fund, Nantiya Ruan, Outten & Golden
LLP, Ossai Miazad, Outten and Golden, Rachel Williams Dempsey,
Outten Golden LLP, Relic Sun, Outten and Golden LLP & Jahan C.
Sagafi, Outten & Golden LLP.
Wells Fargo Bank, N.A., Defendant, represented by Elizabeth M.
Thomas -- ethomas@mcguirewoods.com -- McGuireWoods LLP, pro hac
vice, Jamie Danielle Wells -- jwells@mcguirewoods.com --
McGuireWoods LLP, Jill Crawley Griset -- jgriset@mcguirewoods.com
-- McGuireWoods, LLP, pro hac vice, K. Issac deVyver --
kdevyver@mcguirewoods.com -- McGuireWoods LLP, pro hac vice,
Karla Lynn Johnson -- kjohnson@mcguirewoods.com -- McGuireWoods
LLP, pro hac vice, Mary J. Hackett -- mhackett@mcguirewoods.com -
- McGuireWoods LLP, pro hac vice & Matthew David Monsour --
mmonsour@mcguirewoods.com -- McGuireWoods LLP.
WENDY'S: Bid to Apply Ohio Law in First Choice Suit Partly OK'd
---------------------------------------------------------------
In the case, FIRST CHOICE FEDERAL CREDIT UNION, CREDIT UNION
NATIONAL ASSOCIATION, MICHIGAN CREDIT UNION LEAGUE, WRIGHT-PATT
CREDIT UNION, ENVISTA CREDIT UNION, GREENVILLE HERITAGE FEDERAL
CREDIT UNION, FINANCIAL HORIZONS CREDIT UNION, INDIANA CREDIT
UNION LEAGUE, GEORGIA CREDIT UNION AFFILIATES, FEDERAL DEPOSIT
INSURANCE CORPORATION, Receiver for First NBC Bank, GREATER
CINCINNATI CREDIT UNION, ALIGN CREDIT UNION, CENTRUE BANK,
NUSENDA CREDIT UNION, NORTH JERSEY FEDERAL CREDIT UNION, ALCOA
COMMUNITY FEDERAL CREDIT UNION, OHIO CREDIT UNION LEAGUE, KEMBA
FINANCIAL CREDIT UNION, THE SEYMOUR BANK, ASSOCIATED CREDIT
UNION, NAVIGATOR CREDIT UNION, and MEMBERS CHOICE CREDIT UNION,
Plaintiffs, VERIDIAN CREDIT UNION on behalf of itself and all
others similarly situated, TECH CREDIT UNION on behalf of itself
and all others similarly situated, SOUTH FLORIDA EDUCATIONAL
FEDERAL CREDIT UNION, PREFERRED CREDIT UNION on behalf of
themselves and all others similarly situated, and AOD FEDERAL
CREDIT UNION on behalf of itself and all others similarly
situated, Consolidated Plaintiffs, v. THE WENDY'S COMPANY,
WENDY'S RESTAURANTS, LLC, and WENDY'S INTERNATIONAL, LLC,
Consolidated Defendants, Civil Action No. 16-506 (W.D. Pa.),
Chief Magistrate Judge Maureen P. Kelly of the U.S. District
Court for the Western District of Pennsylvania entered her Report
and Recommendation granting in part and denying in part the
Plaintiffs' Motion for Application of Ohio Law.
The Plaintiffs initiated the class action on behalf of a putative
class of financial institutions that suffered, and continue to
suffer, financial losses as a direct result of Wendy's conscious
failure to take adequate and reasonable measures to protect its
point-of-sale and computer system.
The Plaintiffs are issuers of credit and debit cards to
customers. When such customers use their cards to make purchases
at Wendy's restaurants, Wendy's stores customer payment card data
in its computer systems. Beginning in October 2015, computer
hackers used the credentials of third-party vendors to install
malware through which they were able to steal the payment card
data of Wendy's customers from at least 1,000 restaurants.
Wendy's had knowledge of a data breach in December 2015. By
January 2016, unauthorized charges to Wendy's customers' card
were underway.
Plaintiffs First Choice Federal Credit Union, AOD Federal Credit
Union, Tech Credit Union, Veridian Credit Union, South Florida
Educational Federal Credit Union, Preferred Credit Union, Alcoa
Community Federal Credit Union, Associated Credit Union, Envista
Credit Union, Federal Deposit Insurance Corporation, Receiver for
First NBC Bank,2 Navigator Credit Union, The Seymour Bank,
Financial Horizons Credit Union, Nusenda Credit Union, Greater
Cincinnati Credit Union, KEMBA Financial Credit Union, Wright-
Patt Credit Union, and Members Choice Credit Union, on behalf of
themselves and all others similarly situated, comprise a sub-
group designated in the Complaint as the "FI Plaintiffs."
Plaintiffs Credit Union National Association, Georgia Credit
Union Affiliates, Indiana Credit Union League, Michigan Credit
Union League and Ohio Credit Union League, associations that
represent the interests of their member credit unions, comprise a
sub-group of Plaintiffs designated in the Complaint as
"Association Plaintiffs."
The Plaintiffs filed the operative Consolidated Amended Class
Action Complaint on July 22, 2016. In the 65-page Complaint,
they raise claims of negligence, negligence per se, violation of
the Ohio Deceptive Trade Practices Act as well as seeking
declaratory and injunctive relief.
The Defendants filed a Motion to Dismiss on Aug. 22, 2016.
Ultimately, that Motion to Dismiss was denied and the choice-of-
law dispute raised therein was deferred to a later stage of the
litigation.
The FI Plaintiffs filed the instant Motion for Application of
Ohio Law and supporting documents on Jan. 19, 2018, and Jan. 23,
2018. The Defendants filed a Response in Opposition to the
Motion for Application for Ohio Law and supporting documents on
Feb. 19, 2018, and Feb. 20, 2018. The FI Plaintiffs filed a
Reply Brief on March 21, 2018. On April 11, 2018, the Defendants
filed a Sur-Reply.
The Defendants seeks to apply the law of each of the FI
Plaintiff's home state. For the FI Plaintiffs located in Ohio
(Wright-Patt Credit Union, Greater Cincinnati Credit Union, and
Kemba Financial Credit Union), the Defendants do not object to
the application of Ohio law. However, for the remaining FI
Plaintiffs, the Defendants seek to apply the laws of these
Plaintiffs' respective homes states; specifically: Alabama (AOD
Federal Credit Union); Arkansas (Alcoa Community Federal Credit
Union); Florida (South Florida Educational Federal Credit Union);
Georgia (Associated Credit Union); Indiana (Tech Credit Union);
Iowa (Veridian Credit Union); Kansas (Envista Credit Union);
Louisiana (First NBC Bank); Michigan (Preferred Credit Union);
Mississippi (Navigator Credit Union); Missouri (The Seymour
Bank); Nevada (Horizons Credit Union); New Mexico (Nusenda Credit
Union); Pennsylvania (First Choice Federal Credit Union); and
Texas (Members Choice Credit Union).
The Plaintiffs bring claims of negligence, negligence per se, and
violation of the Ohio Deceptive Trade Practices Act ("ODTPA").
In Count I of the Complaint, the FI Plaintiffs allege that the
Defendants breached a duty to use reasonable care in safeguarding
payment card date and a duty to notify them of any breach in a
timely manner. The FI Plaintiffs base their argument on two
unsubstantiated legal conclusions: property damage and
independent duty.
Citing only to an argument they made in the litigation of the
earlier Motion to Dismiss, the FI Plaintiffs assert that they
have suffered property damage where the integrity of the FI
Plaintiffs' computer data was compromised and rendered
commercially useless for the purpose for which it was intended.
The Magistrate Judge did not find that the FI Plaintiffs suffered
property damage. It is not apparent to the Judge that the loss
of usefulness of computer data could constitute an injury to
property that is either tangible or physical. Thus, for purposes
of the instant Motion, he will not accept the FI Plaintiffs'
assertion that the economic loss doctrine is inapplicable to this
case on the basis that they have suffered property damage. And,
although the Judge found, in disposing of the Motion to Dismiss,
that the FI Plaintiffs had advanced a plausible claim for
negligence, the Judge did not find that the FI Plaintiffs had
established an independent duty on the part of the Defendants.
In Count II of the Complaint, the FI Plaintiffs allege that the
Defendants' actions in failing to use reasonable measures to
protect payment card data and in failing to comply with
applicable industry standards violated of Section 5 of the
Federal Trade Commission Act ("FTC Act") and "similar state
statutes," and thus constituted negligence per se. The
Magistrate Judge finds that Section 5 of the FTC Act does not
contain a private right of action. In any event, as the parties
agree, there is a true conflict of laws as to the claim.
In Count III of the Complaint, they allege that the Defendants
violated the ODTPA, by misrepresenting the security of their
point-of-sale payment systems. The Magistrate Judge holds that
indeed, the U.S. District Court for the Eastern District of
Pennsylvania has explained that courts in this circuit confronted
with proposed multi-state consumer protection classes have
concluded that the laws vary in significant ways. In Vista
Healthplan, it also analyzed the consumer protection laws of
multiple states and to illustrate the many varying elements and
nuanced articulations that distinguish the state protection laws
and the impossibility of distilling the laws into a core set of
elements. As the parties agree, there is a true conflict of laws
as to the claim.
As set forth, if a true conflict exists, the Magistrate Judge
must then determine which of the conflicting jurisdictions has
the greater interest in the application of its law by weighing
the relevant contacts on a qualitative scale according to their
relation to the policies and interests underlying the particular
issue. The relevant contacts are the place of injury, place of
conduct, domicile of the parties, and the place where the
relationship between the parties is centered.
It is undisputed that the alleged injuries, expenses incurred by
and fees lost by the FI Plaintiffs, occurred in the states in
which they have their principal places of business. Due to the
multiple locations of the alleged injuries, this factor weighs in
favor of applying the law of the place of the Defendants'
conduct.
As to the place of conduct, the place where the conduct causing
the injury occurred, the parties differ. The Magistrate Judge
finds sufficient support for the FI Plaintiffs' premise that the
alleged actions and inactions of the Defendants at issue in this
case took place at the Defendants' headquarters in Ohio.
Accordingly, this critical factor weighs in favor of the
application of Ohio law.
The FI Plaintiffs reside in the listed 16 states, including Ohio;
the Defendants reside in Ohio. The Magistrate Judge finds this
factor does not weigh in either side's favor in the instant
determination.
And because the parties agree that they do not have any direct
relationship. Thus, the place where the parties' relationship is
centered factor does not carry any weight in the instant
determination.
As is clear from his analysis, a weighing of the relevant factors
in the case reveals that the most significant contact is the
place of the alleged conduct, i.e., Ohio. Thus, it appears that
the application of Ohio law is appropriate. Accordingly, the
Magistrate Judge will recommend that the instant Motion for
Application of Ohio Law should be granted as to the claims of
negligence and negligence per se.
Finally, he finds that the outcome differs as to the ODPTA claim,
however, due to the nature of the statute upon which it is based.
As multiple courts have found, a single state's consumer
protection statute, like the ODTPA, which is designed to protect
consumer residents of the state in which it was promulgated,
should not be generally applied to an action involving plaintiffs
from multiple other states. Accordingly, he will recommend that
the instant Motion for Application of Ohio Law be denied as to
the ODTPA claim insofar as it is brought by the FI Plaintiffs not
located in Ohio.
For the foregoing reasons, Magistrate Judges Kelly respectfully
recommended that the FI Plaintiffs' Motion for Application of
Ohio Law be granted as to the claims for negligence (Count I) and
negligence per se (Count II) and denied as to the claim filed
pursuant to the ODPTA (Count III) insofar as it is brought by the
FI Plaintiffs not located in Ohio.
In accordance with the Magistrate Judges Act, 28 U.S.C. Section
636(b)(1), and Local Rule 72.D.2, the parties are permitted to
file written objections in accordance with the schedule
established in the docket entry reflecting the filing of this
Report and Recommendation. Failure to timely file objections
will waive the right to appeal. Any party opposing objections
may file their response to the objections within 14 days
thereafter in accordance with Local Civil Rule 72.D.2.
A full-text copy of the Court's May 9, 2018 Report and
Recommendation is available at https://is.gd/6Evu0P from
Leagle.com.
FIRST CHOICE FEDERAL CREDIT UNION, Plaintiff, represented by
Arthur M. Murray -- amurray@murray-lawfirm.com -- Murray Law
Firm, pro hac vice, Carey Alexander -- calexander@scott-scott.com
-- Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn -- cvanhorn@bfvlaw.com -- Berman Fink Van Horn P.C., pro hac
vice, Gary F. Lynch --glynch@carlsonlynch.com -- Carlson Lynch
Sweet & Kilpela, LLP, Brian C. Gudmundson --
brian.gudmundson@zimmreed.com -- Zimmerman Reed, LLP, pro hac
vice, Bryan L. Bleichner -- bleichner@chestnutcambronne.com --
Chestnut Cambronne PA, pro hac vice, Erin G. Comite --
ECOMITE@SCOTT-SCOTT.COM -- Scott+Scott, Attorneys at Law, LLP,
Jonathan S. Mann -- onM@Pittmandutton.Com -- Pittman, Dutton &
Hellums, P.C., pro hac vice, Karen Sharp Halbert --
KARENHALBERT@ROBERTSLAWFIRM.US -- Roberts Law Firm, P. A., pro
hac vice, Karen H. Riebel -- khriebel@locklaw.com -- Lockridge
Grindal Nauen P.L.L.P., pro hac vice & Kate M. Baxter-Kauf --
kmbaxter-kauf@locklaw.com -- Lockridge Grindal Nauen P.L.L.P.,
pro hac vice.
CREDIT UNION NATIONAL ASSOCIATION, MICHIGAN CREDIT UNION LEAGUE,
ENVISTA CREDIT UNION, FINANCIAL HORIZONS CREDIT UNION, INDIANA
CREDIT UNION LEAGUE, GEORGIA CREDIT UNION AFFILIATES, FEDERAL
DEPOSIT INSURANCE CORPORATION, Receiver for First NBC Bank,
GREATER CINCINNATI CREDIT UNION, CENTRUE BANK, NUSENDA CREDIT
UNION, OHIO CREDIT UNION LEAGUE, KEMBA FINANCIAL CREDIT UNION,
THE SEYMOUR BANK, ASSOCIATED CREDIT UNION, NAVIGATOR CREDIT UNION
& MEMBERS CHOICE CREDIT UNION, Plaintiffs, represented by Arthur
M. Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Bryan L.
Bleichner, Chestnut Cambronne PA, pro hac vice, Erin G. Comite,
Scott+Scott, Attorneys at Law, LLP, Jonathan S. Mann, Pittman,
Dutton & Hellums, P.C., pro hac vice, Karen Sharp Halbert,
Roberts Law Firm, P. A., pro hac vice & Gary F. Lynch, Carlson
Lynch Sweet & Kilpela, LLP.
WRIGHT-PATT CREDIT UNION, Plaintiff, represented by Arthur M.
Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., Erin G. Comite, Scott+Scott,
Attorneys at Law, LLP, Jonathan S. Mann, Pittman, Dutton &
Hellums, P.C., pro hac vice, Karen Sharp Halbert, Roberts Law
Firm, P. A., pro hac vice & Gary F. Lynch, Carlson Lynch Sweet &
Kilpela, LLP.
ALCOA COMMUNITY FEDERAL CREDIT UNION, Plaintiff, represented by
Arthur M. Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Bryan L.
Bleichner, Chestnut Cambronne PA, pro hac vice, Erin G. Comite,
Scott+Scott, Attorneys at Law, LLP, Jonathan S. Mann, Pittman,
Dutton & Hellums, P.C., pro hac vice, Karen Sharp Halbert,
Roberts Law Firm, P. A. & Gary F. Lynch, Carlson Lynch Sweet &
Kilpela, LLP.
VERIDIAN CREDIT UNION, on behalf of itself and all others
similarly situated, Plaintiff Consolidated, represented by Arthur
M. Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Gary F. Lynch,
Carlson Lynch Sweet & Kilpela, LLP, Brian C. Gudmundson,
Zimmerman Reed, LLP, Erin G. Comite, Scott+Scott, Attorneys at
Law, LLP, Jonathan S. Mann, Pittman, Dutton & Hellums, P.C., pro
hac vice, Karen Sharp Halbert, Roberts Law Firm, P. A., pro hac
vice, Karen H. Riebel, Lockridge Grindal Nauen P.L.L.P. & Kate M.
Baxter-Kauf, Lockridge Grindal Nauen P.L.L.P., pro hac vice.
TECH CREDIT UNION, on behalf of itself and all others similarly
situated, Plaintiff Consolidated, represented by Arthur M.
Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Gary F. Lynch,
Carlson Lynch Sweet & Kilpela, LLP, Brian C. Gudmundson,
Zimmerman Reed, LLP, pro hac vice, Bryan L. Bleichner, Chestnut
Cambronne PA, pro hac vice, Erin G. Comite, Scott+Scott,
Attorneys at Law, LLP, James Pizzirusso, Hausfeld LLP, pro hac
vice, Jonathan S. Mann, Pittman, Dutton & Hellums, P.C., pro hac
vice, Karen Sharp Halbert, Roberts Law Firm, P. A., pro hac vice,
Karen H. Riebel, Lockridge Grindal Nauen P.L.L.P., Kate M.
Baxter-Kauf, Lockridge Grindal Nauen P.L.L.P., pro hac vice,
Steven M. Nathan, Hausfeld LLP, pro hac vice & Swathi Bojedla --
sbojedla@hausfeld.com -- pro hac vice.
SOUTH FLORIDA EDUCATIONAL FEDERAL CREDIT UNION, Plaintiff
Consolidated, represented by Arthur M. Murray, Murray Law Firm,
pro hac vice, Carey Alexander, Scott+Scott Attorneys at Law LLP,
pro hac vice, Charles H. Van Horn, Berman Fink Van Horn P.C., pro
hac vice, Gary F. Lynch, Carlson Lynch Sweet & Kilpela, LLP,
Brian C. Gudmundson, Zimmerman Reed, LLP, pro hac vice, Bryan L.
Bleichner, Chestnut Cambronne PA, pro hac vice, Erin G. Comite,
Scott+Scott, Attorneys at Law, LLP, Jonathan S. Mann, Pittman,
Dutton & Hellums, P.C., pro hac vice, Karen Sharp Halbert,
Roberts Law Firm, P. A., pro hac vice, Karen H. Riebel, Lockridge
Grindal Nauen P.L.L.P. & Kate M. Baxter-Kauf, Lockridge Grindal
Nauen P.L.L.P., pro hac vice.
PREFERRED CREDIT UNION, on behalf of themselves and all others
similarly situated, Plaintiff Consolidated, represented by Arthur
M. Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Gary F. Lynch,
Carlson Lynch Sweet & Kilpela, LLP, Brian C. Gudmundson,
Zimmerman Reed, LLP, pro hac vice, Bryan L. Bleichner , Chestnut
Cambronne PA, pro hac vice, Erin G. Comite, Scott+Scott,
Attorneys at Law, LLP, Jonathan S. Mann, Pittman, Dutton &
Hellums, P.C., pro hac vice, Joseph P. Guglielmo, Scott+Scott,
Attorneys at Law, LLP, Karen Sharp Halbert, Roberts Law Firm, P.
A., pro hac vice, Karen H. Riebel , Lockridge Grindal Nauen
P.L.L.P. & Kate M. Baxter-Kauf, Lockridge Grindal Nauen P.L.L.P.,
pro hac vice.
AOD FEDERAL CREDIT UNION, on behalf of itself and all others
similarly situated, Plaintiff Consolidated, represented by Arthur
M. Murray, Murray Law Firm, pro hac vice, Carey Alexander,
Scott+Scott Attorneys at Law LLP, pro hac vice, Charles H. Van
Horn, Berman Fink Van Horn P.C., pro hac vice, Gary F. Lynch,
Carlson Lynch Sweet & Kilpela, LLP, Jonathan S. Mann, Pittman,
Dutton & Hellums, P.C., Brian C. Gudmundson , Zimmerman Reed,
LLP, pro hac vice, Bryan L. Bleichner, Chestnut Cambronne PA, pro
hac vice, Erin G. Comite, Scott+Scott, Attorneys at Law, LLP,
Karen Sharp Halbert, Roberts Law Firm, P. A., pro hac vice, Karen
H. Riebel, Lockridge Grindal Nauen P.L.L.P. & Kate M. Baxter-
Kauf, Lockridge Grindal Nauen P.L.L.P., pro hac vice.
THE WENDY'S COMPANY, WENDY'S RESTAURANTS, LLC & WENDY'S
INTERNATIONAL, LLC, Defendants, represented by Cassandra Kerkhoff
Johnson -- cassie.johnson@alston.com -- Alston & Bird LLP, pro
hac vice, Dominique R. Shelton -- DShelton@perkinscoie.com --
Perkins Coie LLP, Donald M. Houser -- donald.houser@alston.com --
Alston & Bird LLP, pro hac vice, Gavin Reinke --
gavin.reinke@alston.com -- Alston & Bird LLP, pro hac vice,
Jonathan D. Parente -- jonathan.parente@alston.com -- Alston &
Bird LLP, pro hac vice, Kristine McAlister Brown --
kristy.brown@alston.com -- Alston & Bird LLP, pro hac vice &
Stephen S. Stallings -- attorney@stevestallingslaw.com -- The
Osterling Building.
WILLIAMS CO: 10th Cir. Affirms Dismissal of Securities Suit
-----------------------------------------------------------
In the case, EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF RHODE
ISLAND, Plaintiff-Appellant, and MICHAEL ERBER, Plaintiff, v. THE
WILLIAMS COMPANIES, INC.; WILLIAMS PARTNERS L.P.; WILLIAMS
PARTNERS GP, LLC; ALAN S. ARMSTRONG; DONALD R. CHAPPEL,
Defendants-Appellees, Case No. 17-5034 (10th Cir.), Judge Harris
Hartz of the U.S. Court of Appeals for the Tenth Circuit affirmed
the district court's dismissal of the Plaintiff's amended
complaint.
Defendant Williams is an energy company. At the times material
to the Complaint, its president and CEO was Defendant Armstrong
and its chief financial officer ("CFO") was Defendant Chappel.
Armstrong also served on its board of directors. Defendant
Williams Partners GP LLC is a limited-liability company owned by
Williams. Armstrong was chairman of the board and CEO; and
Chappel was CFO and a director. Defendant Williams Partners L.P.
("WPZ") is a master limited partnership, whose general partner
was Williams Partners GP. Williams owned 60% of WPZ's limited-
partnership units.
The Plaintiff's case centers on merger discussions between
Williams and Energy Transfer Equity L.P. ("ETE"), a competing
energy firm. The members of the putative class purchased units
of WPZ between May 13, 2015 (when Williams announced that it
planned to merge with WPZ) and June 19, 2015 (when ETE announced
that, despite having been rebuffed by Williams, it would seek to
merge with Williams and that such a merger would preclude the
merger with WPZ). The value of the units dropped significantly
after this announcement. Ultimately, ETE merged with Williams
and the proposed WPZ merger was not consummated.
The Complaint alleges that the class members paid an excessive
price for WPZ units because Williams had not disclosed during the
class period its merger discussions with ETE. The Plaintiff
filed suit on March 7, 2016. It filed the amended complaint
("Complaint") on Aug. 31, 2016.
The Plaintiff seeks to represent purchasers of WPZ stock from May
13, 2015, through June 19, 2015. It alleges one misleading
statement at the Analysts Presentation (on the first day of the
class period) and one omission of a material fact at that time.
The alleged misleading statement was that the Williams-WPZ merger
was a done deal, there being "no risk" that it would not be
consummated. The alleged omission was the failure to disclose
that Williams and ETE had been having discussions about a
potential merger that would prevent the WPZ merger.
The Plaintiff contends that as a result of the Defendants'
alleged deception, the members of the putative class overpaid for
units in WPZ, as shown by the sharp drop in the value of those
units when ETE's merger discussions with Williams were eventually
announced on June 22 (the first business day after the class
period). The Complaint alleges that the Defendants' failure to
disclose the merger discussions with ETE violated sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and SEC Rule
10b-5.
Now, the Plaintiff appeals the district court's dismissal of the
Complaint.
Judge Hartz finds that the district court properly dismissed the
claim based on the alleged misleading statement because the
allegation is based on a mischaracterization of what the
Defendants said. As for the alleged material omission, he will
affirm on three grounds: (1) the Defendants had no duty to
disclose the merger discussions with ETE; (2) even if there was a
duty to disclose, Plaintiff failed to adequately allege that the
discussions were material; and (3) even if the Defendants had a
duty to disclose and the discussions were material, the Plaintiff
failed to adequately allege that the Defendants possessed the
requisite scienter when failing to disclose the merger
discussions.
For these reasons, the Judge affirmed the district court's
judgment.
A full-text copy of the Tenth Circuit's May 11, 2018 Order is
available at https://is.gd/ycfO3u from Leagle.com.
Ira A. Schochet -- ischochet@labaton.com -- Labaton Sucharow LLP,
New York, New York (Joel H. Bernstein -- jbernstein@labaton.com -
- Michael W. Stocker -- mikes@hbsslaw.com -- Eric J. Belfi --
ebelfi@labaton.com -- and Eric D. Gottlieb --
egottlieb@labaton.com -- Labaton, Sucharow LLP, New York, New
York, and William B. Federman -- JDW@FEDERMANLAW.COM -- and
Joshua D. Wells, Federman & Sherwood, Oklahoma City, Oklahoma,
with him on the briefs), for Plaintiff-Appellant.
Sandra C. Goldstein -- sandra.goldstein@kirkland.com -- Cravath,
Swaine & Moore LLP, New York, New York (Antony L. Ryan --
aryan@cravath.com -- Cravath, Swaine & Moore LLP, New York, New
York, and Michael J. Gibbens -- mike.gibbens@crowedunlevy.com --
Elliot P. Anderson -- elliot.anderson@crowedunlevy.com -- Crowe &
Dunlevy, P.C., Tulsa, Oklahoma, and Mary H. Tolbert --
molly.tolbert@crowedunlevy.com -- Oklahoma City, Oklahoma, with
her on the brief), for Defendants-Appellees.
WW GRAINGER: "Benedict" Suit Alleges FLSA Violation
---------------------------------------------------
Amanda Benedict, on behalf of herself and others similarly
situated v. W.W. Grainger, Inc., Case No. 5:18-cv-01438 (N.D.
Ohio, June 26, 2018), is brought against the Defendant for
violation of the Fair Labor Standards Act.
The Plaintiff worked at the Defendant's Macedonia, Ohio
distribution center.
The Defendant is one of the largest broadline distributors in
maintenance, repair, and operating supplies in the country. [BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER, LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Tel: (330) 470-4428
Fax: (330) 754-1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
*********
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