/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180717.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 17, 2018, Vol. 20, No. 142 Headlines ABM INDUSTRIES: Bid to Stay "Castro" Pending Arbitration Denied AETNA INC: Seeks Dismissal of Shareholder Derivative Suit AIRSTREAM INC: Court Conditionally Certifies "Funk" FLSA Class ALTITUDE MARKETING: GreenSky Can Arbitrate "Terlizzi" AMCOL SYSTEMS: Third Circuit Appeal Filed in "Magana" Class Suit AMERICAN FEDERATION: High Court Set to Rule on Union Fees Case ANALOGIC CORPORATION: Carr Files Securities Class Action in Mass. ANDEAVOR: Bushansky Alleges Securities Exchange Act Breach APPLE INC: Court Narrows Claims in "Morgan" MMWA Suit BAVARIA INN: Can Partly Compel Arbitration in "Mantooth" Suit BCA FINANCIAL: Court Narrows Claims in "Reyes" BEAUFORT, SC: Court Denies Bid to Dismiss "Bairefoot" Suit BEHR PROCESS: Court Grants Stay Pending Related Case Disposition BHP: Hunter Valley Casual Coal Miners Join Class Action BHP: Adero Law Launches Class Action on Behalf Casual Mineworkers BIG TOP: Must Produce Employees Information in "Pizano" BRISTOL-MYERS: Bernstein Litowitz to Lead Shareholder Class Suit BLOOMINGDALE'S INC: Illegally Charged "Rayford" Bag Tax CALIFORNIA: Magistrate Recommends Dismissal of "Warfield" CANADA: Civil Trial in BC Foreign Buyers Tax Case Begins CANADA: RCMP Faces Class Action Over Bullying, Harassment Claims CHURCH & DWIGHT: Court Narrows Claims in "Chavez" Suit CIGNA CORP: 4th Circuit Affirms Summary Judgment in "Gordon" Suit CIPRO CASES: Cal. App. Dismisses Non-Party Appeal CONDOCERTS.COM: Court Dismisses "Ahrendt" Suit CORECIVIC INC: Court Narrows Claims in "Owino" Suit DAIMLER AG: Faces Class Action Over Faulty Truck Parts DAIMLER AG: Wants Class Action Over Defective HVAC Systems Tossed DETORONICS CORP: "Stone" Sues Over Unpaid Overtime, Missed Breaks DIAMOND RESORTS: Discovery in "Dropp" Suit Stayed DEREK LAM 115: "Guzman" Files Request for Judicial Intervention EPIC SYSTEMS: McOmber & McOmber Attorney Discusses SCOTUS Ruling EXPRESS SCRIPTS: Investors Want to Block Merger Vote EVERETT ASSOCIATION: Thomas Appeals W.D. Wash. Ruling to 9th Cir. FIELD ASSET: Court Strikes Decertification Bid in "Bowerman" Suit FLOWERS FOODS: Can Compel Arbitration in "Abugeith" FLSA Suit FRANKLIN GARCIA-VICTOR: Denial of No Cause of Action Bid Upheld GOLDEN STATE: $150K Settlement in "Padron" Suit Gets Final OK GUARD MANAGEMENT: "Sellers" Alleges No Time-keeping, Break Time HARVARD UNIVERSITY: Low Personality Ratings to Asian-Americans HEYWOOD CARI: "Veness" FDCA Suit Settlement Has Final Approval HOMEAWAY INC: Can Compel Arbitration in "Arnold," "Swimsuits HUON CORP: Litigation Funder Responds to Case Publicity HYATT HOTELS: Seeks Dismissal of Antitrust Class Action ILLINOIS: Court Assigns Prisoner's Suit for Screening INTUIT INC: Court Dismisses 2nd Negligence Claim in "Diaz" KC CONSULTING: Ct. Denies Default Judgment in "Abarca" FLSA Suit KLONDEX MINES: Chandra Files Suit Over Sale to Hecla Mining LABOR READY: 9th Cir. Affirms Final Approval of "Allen" Suit Deal LASERSHIP INC: Judge Transfers Workers' Class Action to Virginia LOUISIANA: "Abshire" Class Certification Affirmed LOUISIANA: La. App. Vacates Class Certification in LPSC Suit MAGNACHIP SEMICONDUCTOR: "Thomas" Deal w/ Avenue Has Final OK MDL 2199: Court Lifts Stay of Non-California Claims MDL 2420: Direct Purchasers' Deal with Samsung SDI Has Final OK MDL 2420: Direct Purchasers' Deal with LG Chem Has Final Approval MDL 2420: Direct Purchasers' Deal with TOKIN Has Final Approval MEDICREDIT INC: $5MM Deal in "Martinez" TCPA Suit Has Final OK MICROSOFT CORP: Discrimination Suit Can't Proceed as Class Action MISSOURI: Class Certification Granted in Juvenile Parole Suit MONTANA: Partial Summary Judgment Ruling in "Duane" Reversed NES EQUIPMENT: Court Dismisses ICFA Suit NEWELL BRANDS: Faces Bucks County Securities Suit in New Jersey NEWELL BRANDS: Faruqi Law Firm Files Securities Class Action NISSAN NORTH: Court Narrows Claims in "Falk" Suit NUTRACEUTICAL CORP: SCOTUS to Take Up Decertification Challenge OCEAN HARBOR: Settles Automobile Accident Insurance Class Action ORION INT'L: "Ascencio" Class Cert. Denial Partly Affirmed PARALLON ENTERPRISES: "Buford" Sues Over Unpaid OT Wages PEOPLES UNITED: Court Grants Bid to Dismiss "Daccache" RICO Suit PETROBRAS BRASILEIRO: Court Approves Class Action Settlement PETROBRAS BRASILEIRO: Judge Orders Atty to Cut Legal Fees RENT-A-CENTER INC: "Beaton" Remanded to Missouri State Court RENT-A-CENTER: Bid to Stay "Blair" Pending Appeal Nixed RESTORATION ROBOTICS: Aug. 21 Lead Plaintiff Motion Deadline Set RHODE ISLAND: Dismissal of "Rodriguez" Suit Recommended RURAL METRO: "Calleros" Labor Suit Remanded to State Court RXBAR: Faces Class Action Over Misleading Protein Bar Labels S&A UNIFIED: "Stalling" Files Request for Judicial Intervention SANDIA CORP: Court Dismisses "Kennicott" Suit SKYWEST INC: "Meek" Parties Directed to Confer on Schedule SP PLUS: 7th Cir. Vacates Dismissal of "Collier" FACTA Suit TAMKO BUILDING: Court Denies Certification of "Disher" Class TARGET CORP: Ct. Rejects Data Breach Class Suit Payout Objection TD BANK: Added as Defendants in Price-Fixing Class Action TESLA MOTORS: "Rodriguez" Sues Over Missed Breaks, No Paystubs TEVA PHARMA: "Baker" SEC Suit Transferred to Conn. TJX COS: Ct. Grants Final Approval of "Chester" Class Settlement TRAVELERS HOME: Wins Summary Ruling on Individual Claims TRANSNATIONAL FOODS: "Lejbman" Suit Dismissed UNITED COUNTY: Grayson County Considers Joining Tax Class Action UNITED STATES: Rights Activist Group Sue Over Family Separation UNITED STATES: Settlement in "Moss" Suit Has Prelim Approval WALMART STORES: Appeals Court Won't Reconsider Fee Award Ruling WHOLE FOODS: To Implement GMO Product Labeling Changes After Suit WINSLOW & SHOOMAKER: "Lee" Claims Vape Product Contain Pesticides WOLF FIRM: Manos Appeals C.D. Cal. Decision to Ninth Circuit XEROX HR: Averts Class Action Over ERISA Violation ZICAM LLC: Court Allows Filing of SAC in "Melgar" Suit * Experts Divided on Removing Ban on Litigation Contingency Fees * New Class Action Regime Enforced in Kingdom of Saudi Arabia ********* ABM INDUSTRIES: Bid to Stay "Castro" Pending Arbitration Denied --------------------------------------------------------------- The United States District Court for the Northern District of California denied Defendant's Motion to Compel Arbitration of the non-PAGA claims in the case captioned MARLEY CASTRO, ET AL., Plaintiffs, v. ABM INDUSTRIES, INC., ET AL., Defendants, Case No. 17-cv-3026-YGR (N.D. Cal.). The Plaintiffs bring this class action complaint against defendants ABM Industries, Inc. and its wholly owned subsidiaries under California Labor Code Section 2802 and Labor Code Private Attorneys General Act, Labor Code Section 2698 (PAGA) for alleged failure to reimburse or indemnify plaintiffs' expenses for use of their personal cell phones for work-related tasks. ABM argues that the collective bargaining agreements do not contain any temporal limitation. ABM asserts that the phrase "whenever they arise" suggests that the arbitration provisions in the CBAs "apply to claims regardless of when those claims accrued, including claims based on conduct occurring before the effective date of the CBAs." In support of their argument, ABM points to several cases finding in favor of retroactivity for arbitration agreements that contained the words arise or arising. However, in each of these cases the arbitration clauses at issue use arise or arising to describe the substance of covered claims, not the timing (or temporal indication) of the claim. Here, the Court finds that the phrase "whenever they arise points" to the timing of covered claims rather than the subject- matter. In the context of a phrase describing the timing, rather than the substance, of covered claims, the CBAs' use of the present tense arise suggests that the clauses govern present and future, but not past, conduct. Thus, ABM's authorities to the contrary are inapposite. Accordingly, the Court finds that the arbitration clause found in the CBAs applies only to those claims brought by CBA Plaintiffs after the effective date of the relevant CBA. Under Rule 23, an order granting class certification may be altered or amended prior to final judgment. In light of the unions' own affirmative actions to begin arbitration and given that notice has not yet been sent to the class members, the Court finds that the most appropriate remedy to address the instant motion is to modify the class definition to exclude those claims brought by CBA Plaintiffs the facts of which occurred after the effective date of the relevant CBA. Accordingly, ABM's request to stay all proceedings as to the CBA Plaintiffs pending the completion of arbitration is denied as moot. The Court denies ABM's motion to compel as framed and modifies and limits the class definition to exclude all claims properly subject to arbitration. A full-text copy of the District Court's May 14, 2018 Order is available at https://tinyurl.com/y8arrwl6 from Leagle.com. Marley Castro & Lucia Marmolejo, Plaintiffs, represented by Chad A. Saunders -- csaunders@ssrplaw.com -- Sundeen Salinas & Pyle, Genevieve Lise Casey -- genevieve@feinbergjackson.com -- Feinberg, Jackson, Worthman and Wasow -- Hunter Pyle -- hunter@hunterpylelaw.com -- Hunter Pyle Law, Todd F. Jackson -- todd@feinbergjackson.com -- Feinberg, Jackson, Worthman and Wasow LLP & Catha Alison Worthman -- catha@feinbergjackson.com -- FEINBERG JACKSON WORTHMAN & WASOW. ABM Industries, Inc., ABM Onsite Services -- West, Inc., ABM Services, Inc., ABM Janitorial Services -- Northern California, Inc., ABM Janitorial Services, Inc. & ABM Janitorial Services- Southwest, Inc., Defendants, represented by Bradley Joseph Hamburger -- bhamburger@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Theane Evangelis Kapur -- tevangelis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law Gibson, Dunn & Crutcher LLP & Katherine V.A. Smith -- ksmith@gibsondunn.com -- Gibson, Dunn and Crutcher LLP. AETNA INC: Seeks Dismissal of Shareholder Derivative Suit --------------------------------------------------------- Jeannie O'Sullivan, writing for Law360, reports that Aetna Inc. on June 25 urged a Pennsylvania state judge to toss a $1.7 billion shareholder derivative suit claiming the company misled investors about its reasons for leaving Affordable Care Act insurance exchanges last year, arguing that the special committee that deemed the pull-outs proper was comprised of objective members with a wealth of executive experience. The four Aetna directors who investigated the putative class action by Allegheny County Employees' Retirement Fund have spent a collective 60 years on the insurer's board. [GN] AIRSTREAM INC: Court Conditionally Certifies "Funk" FLSA Class -------------------------------------------------------------- In the case, SANDRA FUNK, on behalf of herself and others similarly situated, Plaintiff, v. AIRSTREAM, INC., et al., Defendants, Case No. 3:17-cv-260 (S.D. Ohio), Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio, Western Division, Funk was a production worker at Airstream from June of 2015 until June of 2017. As a non-exempt employee, compensated on an hourly basis, she was entitled to compensation equal to one and one-half times her regular rate of pay for each hour worked in excess of forty hours per week. The "regular rate" is deemed to include "all remuneration for employment," including certain nondiscretionary bonuses. Airstream paid its employees nondiscretionary attendance bonuses. It also paid nondiscretionary pool production bonuses for meeting production goals. Funk alleges that because Airstream failed to include these bonuses when calculating her regular rate of pay, the overtime rate that she was paid fell short of what was required. She filed suit on behalf of herself and others similarly situated, alleging violations of federal and state wage laws. Her First Amended Collective and Class Action Complaint alleges violations of the Fair Labor Standards Act of 1938 ("FLSA"), the Ohio Minimum Fair Wage Standards Act and the Ohio Prompt Pay Act. On March 6, 2018, Funk filed a Motion for Conditional Class Certification and Court-Supervised Notice to Potential Opt-in Plaintiffs Pursuant to 29 U.S.C. Section 216(b). She asked the Court to conditionally certify a collective FLSA action consisting of all current and former hourly, non-exempt employees of the Defendants, who received any additional form of remuneration during any workweek that they worked over 40 hours in any workweek beginning March 1, 2015 and continuing through the date of final disposition of the case. She also asked the Court to approve a Notice to be sent to potential opt-in Plaintiffs, and to order the Defendants to identify all potential opt-in Plaintiffs. After the Defendants filed their Response to Funk's Motion for Conditional Class Certification, the Plaintiff filed an Emergency Motion for a Protective Order, Cease and Desist Order, and the Immediate Granting of Plaintiff's Motion for Issuance of Notice, Additional Notice, Corrective Actions, Preliminary Injunction, and Sanctions. This prompted several conference calls, held on April 20, 2018, April 26, 2018, and May 4, 2018. Both motions are now fully briefed. Although the Court issued oral rulings on these motions during the May 4, 2018, conference call, it sets forth its reasoning. Based on the current record, Judge Rice finds no justification at this time for restricting Airstream's communications with the putative class members. However, as the Court noted during the May 4, 2018, conference call, the Defendants are cautioned that conduct aimed at discouraging the putative class members from participating in the lawsuit will not be tolerated and may be subject to sanctions. He also finds that the Plaintiff has failed to establish that the remedies she requested are warranted. As discussed during the conference calls, the Court has no authority to deem the payments made by Airstream to be "gifts" instead of back wages. Accordingly, he overruled the Plaintiff's Emergency Motion for a Protective Order, Cease and Desist Order, and the Immediate Granting of Plaintiff's Motion for Issuance of Notice, Additional Notice, Corrective Actions, Preliminary Injunction, and Sanctions. As to the Plaintiff's Motion for Conditional Class Certification, based on the evidence presented at this initial stage of the proceedings, the Judge finds that the Plaintiff has shown that the employees to be notified are "similarly situated" in that Airstream had a company-wide policy of improperly excluding nondiscretionary bonuses in calculating the regular rate of pay for purposes of determining employees' overtime compensation. Moreover, it appears to the Court that a manageable class exists. For these reasons, the Judge sustained the Plaintiff's Motion for Conditional Class Certification, and conditionally certified a collective FLSA class consisting of all current and former hourly, non-exempt employees of the Defendants, who were paid by Airstream, and received any additional form of remuneration during any workweek that they worked over 40 hours in any workweek beginning March 1, 2015, and continuing through the date of final disposition of the case. The Defendants, within 14 days of the date of the Decision and Entry, will provide to the Plaintiff's counsel a list, in electronic and importable format, of the names, job titles, last known addresses, telephone numbers, e-mail addresses, and dates of employment, of all potential opt-in Plaintiffs who worked for Defendants at any time from three years preceding the filing of the Plaintiff's Motion through the present. The Plaintiff has also asked the Court to approve the form and method of her proposed Notice of Collective Action Lawsuit. In addition, she asks the Court to authorize her to send a "reminder notice," halfway through the 90-day opt-in period. The Defendants have raised several objections to the proposed Notice of Collective Action Lawsuit. During the May 4, 2018, conference call, the Court directed counsel to attempt to resolve their differences, and to submit a Joint Revised Notice for the Court's review. The parties have done so, and it appears that they have resolved all but one issue, which will be discussed during a follow-up conference call. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2t9r2cK from Leagle.com. Sandra Funk, Plaintiff, represented by Daniel I'Anson Bryant -- dbryant@bryantlegalllc.com -- Bryant Legal, LLC & Matthew James Porter Coffman -- mcoffman@mcoffmanlegal.com -- Coffman Legal, LLC. Mark Satterly, Plaintiff, represented by Matthew James Porter Coffman, Coffman Legal, LLC. Airstream, Inc, Defendant, represented by Bryan A. Niemeyer -- bniemeyer@fgks-law.com -- Faulkner, Garmhausen, Keister & Shenk, Karen S. Hockstad -- karen.hockstad@dinsmore.com -- Dinsmore & Shohl & Vladimir P. Belo -- vladimir.belo@dinsmore.com -- Dinsmore and Shohl LLP. Thor Industries, Inc., Defendant, represented by Karen S. Hockstad, Dinsmore & Shohl & Vladimir P. Belo, Dinsmore and Shohl LLP. ALTITUDE MARKETING: GreenSky Can Arbitrate "Terlizzi" ----------------------------------------------------- The United States District Court for the District of Colorado granted Defendant GreenSky, LLC's Motion to Compel Arbitration in the case captioned JASON TERLIZZI and REBECCA TERLIZZI, individually and on behalf of all others similarly situated, Plaintiffs, v. ALTITUDE MARKETING, INC., and GREENSKY, LLC, Defendants, Civil Action No. 16-cv-1712-WJM-STV (D. Colo.). Plaintiffs Jason and Rebecca Terlizzi bring this putative class action against Defendants Altitude Marketing, Inc., and GreenSky, LLC, for claims related to the Defendants' allegedly deceptive marketing and sale of high-interest financing for rooftop solar power systems. Accordingly, to the complaint, the Terlizzis agreed on the spot to purchase the solar power system with GreenSky financing. Jason Terlizzi signed four documents that day, but none contained in arbitration provision. One document, the Borrower Payment Certificate, contained an acknowledgment that the signatory agrees to be legally bound by the "TERMS AND CONDITIONS" contained in the GreenSky Installment Loan Agreement. Those Terms and Conditions contained an arbitration clause. However, the Terlizzis claim they had not received the Installment Loan Agreement when Jason Terlizzi signed the Borrower Payment Certificate. The arbitration clause defines Claim to mean, any claim, dispute or controversy of every kind and nature, whether based in law or equity, between you and us arising from or relating to your GreenSky Installment Loan Agreement as well as the relationship resulting from such Agreement (the Agreement), including the validity, enforceability or scope of this Arbitration Provision or the Agreement. The Terlizzis now have a rooftop solar power system but it has not produced the amount of power they claim they were promised, nor the promised savings, and they have not been able to refinance the GreenSky loan. The Terlizzis have sued Altitude and GreenSky in a purported class action encompassing themselves and all other Colorado residents who were allegedly misled by Altitude or GreenSky into financing a solar power system through GreenSky. Whether an Agreement to Arbitrate Exists GreenSky does not argue that this Court should apply Virginia law to the question of whether a contract was formed. The Court presumes this is because the question before the Court is whether the Terms and Conditions including both the arbitration and choice-of-law clauses are a part of the parties' contract. On this matter, the Terlizzis cite Colorado law for the governing standards. GreenSky states no objection to the Terlizzis' approach, and GreenSky itself invokes Colorado law at times. The Court therefore deems it conceded for present purposes that Colorado law governs the question of contract formation. Two of the Terlizzis' cited cases are about whether website visitors are bound by terms of service that they would never likely read unless they noticed and clicked on a particular link so-called browsewrap agreements. That situation is not relevant here. The remaining cases cited by the Terlizzis present fact scenarios roughly similar to the one at issue, but those cases ultimately support GreenSky because they affirm that acceptance through conduct will create a binding agreement so long as the contract- forming effect of that conduct is known to the party engaging in it. Accordingly, there is no genuine, material dispute that the Terlizzis entered into an agreement containing the Terms and Conditions, including the arbitration clause, when they drew upon the GreenSky loan with reason to know that GreenSky would construe that act as assent to the Terms and Conditions. GreenSky's motion requests dismissal in favor of arbitration, rather than a stay. The Federal Arbitration Act (FAA) directs a stay: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration the court shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. Although the Court understands that some decisions nonetheless order dismissal, the Court is not convinced at least not on the arguments presented by GreenSky that a regular practice of dismissing, rather than staying, is appropriate. Thus, proceedings between the Terlizzis and GreenSky will be stayed pending arbitration, assuming the Terlizzis demand arbitration. All proceedings between the Terlizzis and GreenSky are stayed. A full-text copy of the District Court's May 14, 2018 Order is available at https://tinyurl.com/y7mvzpo4 from Leagle.com. Jason Terlizzi, individually and on behalf of all others similarly situated, & Rebecca Terlizzi, individually and on behalf of all others similarly situated, Plaintiffs, represented by Schuyler R. Ufkes -- sufkes@edelson.com -- Edelson, P.C.- Chicago -- Sydney M. Janzen -- sjanzen@edelson.com -- Edelson, P.C.-Chicago & Benjamin H. Richman -- brichman@edelson.com -- Edelson, P.C.-Chicago. Altitude Marketing, Inc, a Colorado corporation doing business as 1 800 Solar USA, Defendant, pro se. GreenSky, LLC, a Georgia limited liability company, Defendant, represented by Barry Goheen -- bgoheen@kslaw.com -- King & Spalding, LLP & John Anthony Love -- tlove@kslaw.com -- King & Spalding, LLP. AMCOL SYSTEMS: Third Circuit Appeal Filed in "Magana" Class Suit ---------------------------------------------------------------- Plaintiff Nicole Magana filed an appeal from a court ruling in the lawsuit titled Nicole Magana v. Amcol Systems Inc., Case No. 1-17-cv-11541, in the U.S. District Court for the District of New Jersey. The nature of suit is stated as consumer credit. The appellate case is captioned as Nicole Magana v. Amcol Systems Inc., Case No. 18-2267, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant NICOLE MAGANA, on behalf of herself and all others similarly situated, is represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: jkj@legaljones.com bwolf@legaljones.com Defendant-Appellee AMCOL SYSTEMS INC. is represented by: Peter T. Shapiro, Esq. LEWIS BRISBOIS BISGAARD & SMITH 199 Water Street New York, NY 10038 Telephone: (212) 232-1322 E-mail: pshapiro@lbbslaw.com AMERICAN FEDERATION: High Court Set to Rule on Union Fees Case -------------------------------------------------------------- Bill McMorris, writing for The Washington Free Beacon, reports that public-sector workers across the country are seeking to recover back wages they paid to labor organizations in the event the Supreme Court declares mandatory union fees unconstitutional. Class action suits have been filed against eight unions in New York, New Jersey, Pennsylvania, Minnesota, Maryland, California, and the state of Washington, accusing individual unions of violating workers' rights by collecting mandatory dues payments. The Supreme Court is expected to rule on a groundbreaking case, Janus v. American Federation of State, County, and Municipal Employees, which challenges the constitutionality of forcing public-sector workers to pay union dues or fees as a condition of employment. The suits argue that any public-sector employee who participated in forced dues systems should receive financial "redress" from labor organizations. "The defendants have violated the class members' constitutional rights by forcing non-union members to pay compulsory 'representation fees' to the Maryland State Education Association (MSEA) or its affiliates as a condition of their employment," the Maryland complaint says. Similar language is featured in all eight lawsuits. "The compelled subsidy that [plaintiff Ruth Akers] and her fellow representation-fee payers must remit to the MSEA as a condition of their employment violates their constitutional rights." Former Texas solicitor general Jonathan Mitchell, who has argued four Supreme Court cases in the past, filed each of the suits. Mitchell declined to comment on the suits, instead directing the Free Beacon to court filings. Seven of the eight unions named in those suits did not return requests for comment. A spokesman for Education Minnesota declined an interview, referring the Free Beacon to a June 21 press release posted to its website. The union decried the suits as part of a coordinated attack sponsored by "a few immensely wealthy individuals." Union president Denise Specht said the union's dues collection practices were in accord and in compliance with all state, local, and federal laws and abided by the 1977 Abood decision, in which the Supreme Court affirmed mandatory dues payments as constitutional. "For the past few years, a few immensely wealthy individuals have paid for a national campaign against the rights of working people to organize and work in union. They fund lawsuits, political campaigns, and think tanks in every state," she said in a statement. "Education Minnesota always complies with the law, and the collection of fair-share fees has been legal and beneficial for the tens of thousands of educators who worked in better schools, with smaller classes, and for more pay than they would have without their union." A veteran labor lawyer familiar with one of the cases, who requested anonymity to candidly discuss legal strategy, said the suits could prove devastating to unions, who are already at risk of losing hundreds of millions of dollars in dues money if the justices rule in favor of the plaintiffs in Janus. He argues that labor organizations do not enjoy qualified and sovereign immunity protections that government agencies enjoy. They could also be forced to pay legal fees if the class-action plaintiffs emerge victorious. "We are seeking to return improperly seized wages for these workers-it's a terrible situation," the lawyer said. "There's a good chance they're going to be hit for refunding all these fees because it is a constitutional violation." Similar suits have followed other Supreme Court rulings on the subject of forced dues payments. In 2014 the Court declared an Illinois policy forcing home health aides to pay dues to SEIU unconstitutional, sparking a Right to Work Foundation lawsuit seeking to recover back payments. A lower court dismissed the suit and an appeal has been filed to the Supreme Court. Patrick Semmens, a spokesman at the National Right to Work Foundation, which represented the Janus plaintiffs before the Supreme Court, said such suits may send a warning to unions tempted to work around the Supreme Court's decision. He expects such cases to spread in other states if the justices rule in favor of the plaintiffs. "As we've seen in assisting workers exercise their rights in new Right to Work states, union bosses will fight tooth and nail against letting [them] exercise their rights to stop funding a union they disagree with," Mr. Semmens said. "So we expect that a Supreme Court ruling for Mark Janus will likely make necessary numerous new cases brought by state workers across the country seeking to enforce their First Amendment rights." [GN] ANALOGIC CORPORATION: Carr Files Securities Class Action in Mass. ----------------------------------------------------------------- Jeanette A. Carr, individually and on behalf of all others similarly situated v. Analogic Corporation, Fred B. Parks, Bernard C. Bailey, Jeffrey P. Black, James J. Judge, Michael T. Modic, Stephen O. Odland, and Joseph E. Whitters, Case No. 1:18- cv-11301 (D. Mass., June 21, 2018), seeks to recover damages resulting from the Defendants' violations of the Securities Exchange Act of 1934. The Plaintiff filed the case in connection with the proposed acquisition by which Altaris Capital Partners, LLC, through its wholly-owned affiliates ANLG Holding Company, Inc. and ANLG Holding's wholly-owned subsidiary AC Merger Sub, Inc., will acquire all of the outstanding stock of Analogic for a derisory price, says the complaint. The Plaintiff alleged that the Proxy Statement filed by the Defendants misstates and omits certain material information with respect to the Proposed Transaction, which renders it false and misleading, in violation of Sections 14(a) and 20(a) of the Exchange Act. The Plaintiff is a shareholder of Analogic. The Defendant Analogic is a Massachusetts corporation headquartered at 8 Centennial Drive, Peabody, Massachusetts, 01960. Analogic is a healthcare and security technology solutions company. Its products and services include advanced imaging and real-time guidance technologies used for disease diagnosis and treatment as well as for automated threat detection. The Individual Defendants are officers of Analogic. [BN] The Plaintiff is represented by: Jason M. Leviton, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Tel: (617) 398-5600 E-mail: jason@blockesq.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC 350 Fifth Avenue, Suite 4405 New York, NY 10118 Tel: (212) 971-1341 Fax: (212) 202-7880 - and - Guri Ademi, Esq. Shpetim Ademi, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Ave. Cudahy, WI 53110 Tel: (414) 482-8000 Fax: (414) 482-8001 ANDEAVOR: Bushansky Alleges Securities Exchange Act Breach ---------------------------------------------------------- Stephen Bushansky, on behalf of himself and all others similarly situated v. Andeavor, et al., Case No. 5:18-cv-00642 (W.D. Tex., June 26, 2018), is brought against the Defendants for violations of the Securities Exchange Act of 1934. The Plaintiff seeks to enjoin the vote on a proposed transaction, pursuant to which Andeavor will be acquired by Marathon Petroleum Corp. through its wholly owned subsidiaries Mahi Inc. and Mahi LLC. The Plaintiff alleges that the Defendants' Registration Statement, which recommends that Andeavor stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) the Company's financial projections, utilized by the Company's financial advisor, Goldman Sachs & Co. LLC in its financial analyses; and (ii) the valuation analyses prepared by Goldman in connection with the rendering of its fairness opinion. The Plaintiff owns Andeavor common stock. The Defendant Andeavor is a Delaware corporation and maintains its principal executive offices at 19100 Ridgewood Parkway, San Antonio, Texas 78259. The Company is a highly integrated crude oil marketing, logistics and refining company. Andeavor's common stock is traded on the New York Stock Exchange under the ticker symbol "ANDV." The Individual Defendants are Andeavor's board of directors. [BN] The Plaintiff is represented by: William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma City, OK 73120 Tel: (405) 235-1560 Fax: (405) 239-2112 E-mail: wbf@federmanlaw.com APPLE INC: Court Narrows Claims in "Morgan" MMWA Suit ----------------------------------------------------- In the case, DEONN MORGAN, et al., Plaintiffs, v. APPLE INC., Defendant, Case No. 17-cv-05277-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted in part and denied in part Apple's Motion to Dismiss the First Amended Complaint. Apple acquired Beats Music and Beats Electronics, manufacturers of high-end headphones, in May 2014. Two products in the Apple/Beats line include Powerbeats 2, released in June 2014, and Powerbeats 3, released in October 2016, both wireless Bluetooth headphones co-created by athlete LeBron James. In conjunction with its marketing of the Powerbeats, Apple makes certain representations about each product. Both on the Apple and the Beats website, as well as on product packaging, Apple represents Powerbeats 2 as having a "6 hour rechargeable battery" and Powerbeats 3 sporting "up to 12 hours battery life. Apple also makes a sweat and water resistance claim on the packaging of both Powerbeats, as well as on both websites. Likewise, both websites make several references to using Powerbeats while working out, including that these water resistant earphones push you further and handle tough training, sweat and water resistance to handle tough training, and sweat and water resistance provides the necessary durability for strenuous workouts and weather. Despite Apple's advertising and representations, Powerbeats have generated a virtually unending stream of consumer complaints because they are neither sweat proof nor do they have the battery life that is advertised. Named Plaintiffs Jennifer Zielinski (Pennsylvania), Kelly Okorocha (Louisiana), Sophia Ivy (Florida), Lydia Zepeda (California), Deonn Morgan (California), Christopher Bizzelle (Texas), and Dana Rodenbeck (Illinois) have each purchased Powerbeats and had similar experiences in which the headphones began malfunctioning after ordinary use. Plaintiffs Morgan, Zepeda, Ivy, Okorocha, Zielinksi, Bizzelle, and DRodenbeck allege that Apple Powerbeats 2 and 3 headphones malfunction and fail to hold a charge when used while sweating and exercising. They bring the suit on behalf of themselves and putative nationwide and state classes alleging violations of various state consumer protection statutes, breach of express and implied warranty, common law fraud, negligence, as well as violation of the Magnuson-Moss Warranty Act ("MMWA"), seeking damages and equitable relief including an injunction. Apple moves to dismiss all claims on numerous grounds. Among other things, Judge Seeborg finds that the Plaintiffs' averments regarding battery life are sufficiently specific to put the Defendants on notice. The Plaintiffs allege that after a certain amount of time, the Powerbeats failed to hold a charge. Such a failure (or the Plaintiffs' averments that the batteries would not even last for an hour-long workout) obviously fall short of the products' 6 or 12-hour battery life claims. While more specific allegations would only serve to strengthen the Plaintiffs' claims, their averments are sufficient at least at this stage. In addition to the general averments, which identify and quote each specific misrepresentation at issue, as well as include specific advertisements by Apple, each Plaintiff explicitly states what misrepresentations he or she saw either on the product's packaging, on web advertising, or on commercial advertising, that induced her to purchase the product. These averments, the Judge says, are sufficient to allege reliance and Counts XII through XVII therefore may proceed. The Plaintiffs' factual averments regarding the numerous consumer complaints and an editorial review are also sufficient to raise a question of fact regarding Apple's knowledge. They survive dismissal and entitle them to proceed to discovery. Similar to the argument that the alleged statements are not actionable under a fraud-based theory, Apple also argues the Plaintiffs' claims based on Apple's statements that Powerbeats are "sweat & water resistant" and have certain battery lives may not proceed because they are not specific enough to create express warranties. The Judge holds that Apple's argument fails. Its claim that Powerbeats are "sweat & water resistant" is specific enough to create an express warranty," as are its representations regarding battery life. With respect to the substance of the Song-Beverly claims, the Judge finds that the Plaintiffs' averments are adequate. He says both Plaintiffs Morgan and Zepeda allege ordinary or expected use of Powerbeats, including while exercising, as explicitly advertised by Apple. Both of them aver that the products ceased functioning within a relatively short amount of time. Furthermore, Apple's replacement of Morgan's headphones allegedly failed to cure the issue, as Morgan avers that her replacement pair stopped working and was therefore unmerchantable. For these reasons, their Song-Beverly Act claims survive. While Apple initially argues that the Plaintiffs' MMWA claims fail for the separate reason that they lack at least 100 named Plaintiffs, the MMWA's requirements are satisfied as the Plaintiffs have invoked jurisdiction under the Class Action Fairness Act. Hence, the Judge holds that the Plaintiffs' MMWA claims thus may proceed consistent with their state law claims. Finally, the Judge finds that not only have the Plaintiffs established an inability to rely on Powerbeats' advertising, but several have actually averred that they replaced and/or purchased the product multiple times, believing that the defects would be fixed. Zielinski alleges that she received "multiple additional replacement Powerbeats 2 headphones," Okorocha purchased a second pair of Powerbeats 2 headphones, and Bizzelle had "over 5 pairs of Powerbeats 2 headphones" that broke as well as Powerbeats 3 headphones that were replaced at least twice. Indeed, he says, it is difficult to imagine what more Apple expects plaintiffs to allege in order to establish that that they have lost faith in their ability to rely on Powerbeats' marketing. For these reasons, he holds that the Plaintiffs may seek injunctive relief. For the foregoing reasons, Judge Seeborg granted in part and denied in part Apple's Motion to Dismiss the First Amended Complaint. The Plaintiffs will file any amended complaint consistent with the Order within 20 days. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2HMtADd from Leagle.com. Deonn Morgan, Lydia Zepeda, Sophia Ivy, Kelly Okorocha & Jennifer Zielinski, individually and on behalf of themselves and all others similarly situated, Plaintiffs, represented by Hassan Ali Zavareei -- hzavareei@tzlegal.com -- Tycko & Zavareei LLP, Adam A. Edwards, Greg Coleman Law PC, Annick Marie Persinger -- apersinger@tzlegal.com -- Tycko & Zavareei LLP, E. Powell Miller -- epm@millerlawpc.com -- The Miller Law Firm, P.C., pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Mahde Abdallah -- mya@miller.law -- The Miller Law Firm, P.C., Mark E. Silvey, Greg Coleman Law PC, Sharon S. Almonrode -- ssa@millerlawpc.com -- The Miller Law Firm, P.C., pro hac vice & Sophia Goren Gold -- sgoren@tzlegal.com -- Kaliel PLLC. Christopher Bizzelle & Dana Rodenbeck, Plaintiffs, represented by Annick Marie Persinger, Tycko & Zavareei LLP, Sophia Goren Gold, Kaliel PLLC & Hassan Ali Zavareei, Tycko & Zavareei LLP. Apple Inc., Defendant, represented by Michelle Carrie Doolin -- mdoolin@cooley.com -- Cooley LLP. BAVARIA INN: Can Partly Compel Arbitration in "Mantooth" Suit ------------------------------------------------------------- In the case, CHADA MANTOOTH, GALE RAFFAELE, ALEXIS NAGLE, and NICOLE BUJOK, individually and on behalf of all others similarly situated, Plaintiffs, v. BAVARIA INN RESTAURANT, INC., d/b/a Shotgun Willie's, and DEBRA MATTHEWS, Defendants, Civil Action No. 17-cv-1150-WJM-MEH (D. Colo.), Judge William J. Martinez of the U.S. District Court for the District of Colorado granted in part the Defendants' Renewed Motion to Compel Individual Arbitration and Dismiss or Stay Proceedings. The Plaintiffs are four individuals who, on behalf of themselves and those similarly situated, sued the Defendants for violations of the Fair Labor Standards Act ("FLSA), the Colorado Wage Claim Act ("CWCA"), and Colorado common law. In their Complaint, they allege that the Defendants -- an adult entertainment club and its owner -- improperly classified them as independent contractors rather than employees. Specifically, the Plaintiffs allege that, because they were actually employees and not independent contractors, the Defendants violated the FLSA and CWCA by failing to pay a proper minimum wage or overtime, requiring that the Plaintiffs share tips, charging fees for them to work at Shotgun Willie's, and charging the Plaintiffs "inappropriate fines." Though not alleged in the Complaint, both parties acknowledge in their briefing that the Plaintiffs signed "Entertainment License Agreements." These Agreements disclaim any employer-employee relationship and classify the Plaintiffs as licensees. The Agreements also contain an arbitration provision. The parties also agreed to certain terms related to the arbitrator and costs of the arbitration. Less than two months after the Plaintiffs filed their Complaint, in late June 2017, the Defendants moved to compel arbitration. Before the Court ruled on the motion, the parties agreed to limited discovery regarding the formation of the Agreements. The Court granted an unopposed request to defer briefing and consideration of the initial motion to compel and denied that motion without prejudice, subject to later re-filing. In October 2017, the Defendants renewed their motion to compel. Based on the plain language of the Agreements, Judge Martinez finds that the parties clearly and unmistakably intended to delegate arbitrability to the arbitrator. Despite the Plaintiffs' arguments that the Agreements are unconscionable, he finds that the Plaintiffs do not specifically attack the delegation clause, and therefore, it is the arbitrator who must resolve any challenge to the enforceability of the Agreements. However, he also finds that several provisions of the arbitration and delegation clauses prevent the Plaintiffs' effective vindication of their statutory rights in arbitration. Because the Agreements contain a severability clause, he finds that the invalid portions are severable from the arbitration clause. Accordingly, the Judge strikes from the arbitration clause the fee-shifting provisions, the cost-sharing requirement for certain Plaintiffs, and the industry expert arbitrator selection requirement. Subject to the severance of these provisions, all disputes regarding the validity of the contracts, unconscionability, and the class action waiver are properly delegated to the arbitrator to decide the arbitrability of the claim. Finally, he finds that nonsignatory Defendant Matthews may compel arbitration. For these reasons, Judge Martinez granted in part and denied in part the Defendants' Motion to Compel as follows: a. Each Plaintiff, to the extent she wishes to pursue her claim, must individually arbitrate with both Defendants; b. Any portion of any Agreement that any Plaintiff may have with the Defendants is severed to the extent it (a) establishes a fee-shifting obligation different from those established in 29 U.S.C. Section 216(b), or (b) allows either party to request an arbitrator experienced in the adult entertainment industry; c. Any portion of any Agreement that Plaintiffs Bujok, Darr, Nagle, and Rafaele may have with Defendants is severed to the extent that it establishes a cost-splitting obligation different from that established in 29 U.S.C. Section 216(b); d. The action is stayed pending the conclusion of the Plaintiffs' individual arbitration proceedings; and e. the Defendants' Motion to Compel is otherwise denied. The Judge denied as moot (i) the Plaintiffs' Expedited Motion to Proceed as a Conditional Collective Action, Provide Notice, and Toll All Statutes of Limitations without prejudice to refiling, subject to the disposition of the arbitration; (ii) the Defendants' Motion to Continue Proceedings Pursuant to FRCP 6(b) on Plaintiffs' Expedited Motion to Proceed as a Conditional Collective Action, Provide Notice, and Toll All Statutes of Limitations ; and (iii) the Plaintiffs' Motion to Certify to the Colorado Supreme Court. Pursuant to D.C.COLO.LCivR 41.2, the Clerk will administratively the case, subject to a motion to reopen for good cause subsequent to the conclusion of all of the Plaintiffs' individual arbitration proceedings. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2JzzWeR from Leagle.com. Chada Mantooth, Gale Raffaele, Alexis Nagle & Nicole Bujok, individually and on behalf of all others similarly situated, Plaintiffs, represented by Andrew Joseph McNulty -- amcnulty@kln- law.com -- Killmer Lane & Newman, LLP, Darold W. Killmer -- dkillmer@kln-law.com -- Killmer Lane & Newman, LLP, Liana Gerstle Orshan -- LOrshan@KLN-law.com -- Killmer Lane & Newman, LLP & Mari Anne Newman -- mnewman@kln-law.com -- Killmer Lane & Newman, LLP. Bavaria Inn Restaurant Inc., doing business as Shotgun Willie's & Deborah Matthews, Defendants, represented by Jason Clayborn Astle -- jastle@springersteinberg.com -- Springer & Steinberg, P.C., Jeffrey Alan Springer -- jspringer@springersteinberg.com -- Springer & Steinberg, P.C. & Matthew Rodney Giacomini -- mgiacomini@springersteinberg.com -- Springer & Steinberg, P.C.. BCA FINANCIAL: Court Narrows Claims in "Reyes" ---------------------------------------------- The United States District Court for the Southern District of Florida, Miami Division, granted in part and denied in part Plaintiffs' Motion for Summary Judgment on an individual Telephone Consumer Protection Act (TCPA) claim in the case captioned ESTRELLITA REYES, Plaintiff, v. BCA FINANCIAL SERVICES, INC., Defendant, Case No. 16-24077-CIV-GOODMAN (S.D. Fla.). Plaintiff Estrellita Reyes, individually and on behalf of others similarly situated, has sued Defendant BCA Financial Services, Inc., for allegedly violating the TCPA, which prohibits, among other things, the use of an automatic telephone dialing system (ATDS) or an artificial or pre-recorded voice to call a person's cellphone absent an emergency or prior express consent. She seeks $1,500 for each of the eight TCPA violations (treble damages for six autodialed calls and two IVR uses, the latter constituting separate TCPA violations). The Court finds that it is undisputed that the Noble dialing system is a predictive dialer. And it is also undisputed that, regardless of how the numbers it dials are teed up, the Noble predictive dialer, as BCA Financial uses it, automatically dials telephone numbers without human intervention. Thus, binding authority would compel the Court to find that the Noble predictive dialer is an ATDS. And the Court would have to reach that conclusion regardless of whether the Court agree with the FCC interpretation of the TCPA's statutory language. Here, BCA Financial has presented no facts or evidence that it used a manual-clicker application or point-and-click function or similar human-intermediary utility before placing a call using the Noble predictive dialer. Quite the opposite, BCA Financial admits that the Noble dialer, as Defendant uses it, automatically dials telephone numbers without human intervention. In sum, the Court grants summary judgment in Reyes' favor on the ATDS issue, finding that the Noble predictive dialer, as used by BCA Financial, was an ATDS as a matter of law. At this point, the evidence does not unequivocally show that BCA willfully or knowingly violated the TCPA as a matter of law. If anything, the evidence shows the opposite that the calls were unintentional. The parties agree that BCA Financial did not intend to call Reyes but was trying to reach someone else to collect a debt. BCA Financial obtained Reyes' cellphone number from one of its clients, Barnabas, who associated that number with a former patient (based on what the patient wrote on certain medical forms. And Barnabas did not inform BCA Financial that the number belonged to someone other than the patient. In short, based on the record as it stands, the Court denies summary judgment in Reyes' favor on the issue of treble damages. BCA Financial's use of the IVR cannot form a basis for summary judgment because it is an unpled claim. Although the Supreme Court has mandated liberal pleading standards for civil complaints, the standard does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage. Thus, as opposed to simply raising additional facts in support of an already pled claim, a plaintiff on summary judgment cannot raise an additional, separate statutory basis for relief. In this case, Reyes' Complaint repeatedly alleged that BCA Financial violated the TCPA by using an automatic telephone dialing system. In the one specific allegation within her TCPA count, she likewise alleged that BCA Financial violated the TCPA by using an automatic telephone dialing system to place non- emergency calls to Plaintiff's cellular telephone number, absent prior express consent. Nowhere does she allege that BCA Financial called her using an artificial or pre-recorded voice. In short, the Court denies Reyes' summary judgment motion on the two claims that seek damages for BCA Financial's use of an artificial or pre-recorded voice issue. A full-text copy of the District Court's May 14, 2018 Order is available at https://tinyurl.com/yad6xogu from Leagle.com. Estrellita Reyes, on behalf of herself others similarly situated, Plaintiff, represented by Michael Lewis Greenwald -- mgreenwald@gdrlawfirm.com -, Greenwald Davidson Radbil PLLC & Aaron D. Radbil -- aradbil@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC. BCA Financial Services, Inc., Defendant, represented by Ernest Henry Kohlmyer, III -skohlmyer@shepardfirm.com -- Shepard, Smith, Kohlmyer & Hand, P.A., Joseph Charles Proulx -- jproulx@gsgfirm.com -- Golden Scaz Gagain, Dale Thomas Golden -- dgolden@gsgfirm.com -- Golden Scaz Gagain, PLLC, Mary Grace Dyleski -- mdyleski@shepardfirm.com -- Shepard, Smith, Kohlmyer & Hand, P.A & Rachel Malkowski Ortiz, Shepard Smith Kohlmyer & Hand, P.A. BEAUFORT, SC: Court Denies Bid to Dismiss "Bairefoot" Suit ---------------------------------------------------------- Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina, Beaufort Division, denied the Defendants' motion to dismiss the case, Tina Renee Bairefoot, et al., Plaintiffs, v. City of Beaufort, South Carolina, et al., Defendants, Civil Action No. 9:17-2759-RMG (D. S.C.). In South Carolina, the municipal courts are optionally created by municipalities to hear petty criminal cases. Where there is no municipal court, such cases are heard by magistrate courts. The municipal judges often are lawyers in private practice who serve in a part time capacity, but they are not required to be lawyers. They are part of the unified state judicial system under the supervision of the Chief Justice of South Carolina, but the municipalities appoint and reappoint the judges for terms of two to four years and the municipalities set the judges' compensation. Before 2009, the Public Defender for the Fourteenth Judicial Circuit provided representation to indigent defendants in Beaufort and Bluffton Municipal Courts. In 2009, the Defendants ignored requests from the public defender for funding to cover those services. Consequently, the public defender notified the municipal judges that the public defender would no longer provide representation and the municipalities that they needed to contract with private attorneys to provide indigent defense they needed to contract with private attorneys. Thereafter, in 2015, the state legislature required municipalities that elect to have a municipal court to provide adequate funds for representation of indigent defendants. The legislature has reenacted that requirement each subsequent fiscal year. The Municipal Association of South Carolina's October 2015 newsletter, under the banner headline "Indigent defense costs are municipal responsibility," informed South Carolina's municipalities that the law gave them four potential courses of action: 1. Negotiate an agreement for indigent defense with the circuit public defender. Several cities and towns have already taken this option. 2. Contract with an independent attorney for a fee or pro bono. Before contracting with the attorney, the town should ensure the attorney has malpractice insurance. 3. Remove the threat of jail time for indigents, although this makes it more difficult to collect any fines that might be imposed on the defendant. 4. Close the municipal court and negotiate an agreement with the county to have municipal cases tried in magistrate court. It also warned that failure to provide indigents with counsel could expose cities to liability and advocacy groups around the country are seeking opportunities to sue cities that violate the indigent defendant's right to counsel. The Defendants nonetheless failed to provide counsel for indigent defendants before the Plaintiffs were sentenced to jail in 2017. At an April 25, 2017, Beaufort City Council meeting, city operations manager Linda Roper discussed with the city council a request for $10,000 in fiscal year 2018 to contract with a private attorney to provide municipal court indigent defense, which she described as "a mandate from the state." The Beaufort Municipal Court annual budget is approximately $500,000 and the court generates about $220,000 in revenue. Ms. Roper recommended contracting with a private attorney rather than the public defender because the public defender has a case backlog and because Beaufort would get more "bang for the buck" from a local attorney retained by the council than from the public defender for the Fourteenth Judicial Circuit, who operates beyond the control of the City of Beaufort. Councilman Philip Cromer asked if Beaufort could simply pay a fine rather than provide counsel for indigent defendants as required by law. Councilman Mike Mcfee noted that course of action could result in litigation brought by the American Civil Liberties Union ("ACLU"). Around the time of those discussions, at least 50 unrepresented persons were sentenced to incarceration in Beaufort and Bluffton municipal courts (period March 21 to June 19, 2017)) and 36% of the inmates in the Beaufort County Detention Center were incarcerated on municipal court charges without the assistance of counsel. On Sept. 15, 2017, the Chief Justice of South Carolina issued a memorandum to all municipal court judges instructing them that all defendants facing criminal charges in their courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right to court- appointed counsel prior to proceeding with trial" and that failure to do so would be a "clear violation" of the United States Constitution. The ACLU filed the present putative class action on behalf of named Plaintiffs Bairefoot, Dae'Quandrea Nelson, Nathan Fox, and all other persons similarly situated, on Oct. 11, 2017. The Plaintiffs assert claims under 42 U.S.C. Section 1983 for alleged violations of the Sixth and Fourteenth Amendments. They seek compensatory damages, attorney's fees, and "any other relief" the Court deems proper. The Defendants moved to dismiss the complaint for failure to state a claim on Dec. 17, 2017. The Court held a hearing on the motion on April 9, 2018. Among other things, Judge Gergel finds that the Plaintiffs correctly argue Reed v. Town of Lexington is inapplicable because state law enacted after Reed was decided makes counsel for indigent defendants a matter of local concern by requiring municipalities to providing funding for such counsel in their municipal courts. The other case the Defendants cite in support of their no-duty-to-provide-counsel argument is inapplicable for the same reason. South Carolina law clearly makes municipalities responsible for providing for indigent defense in municipal courts. The Defendants also argue that even if the Proviso 61.12 does require municipalities to provide for indigent defense in municipal courts (as it indeed does), municipal failure to comply with a state law is not actionable under Section 1983. But Proviso 61.12 merely means the municipalities are the public authorities designated by state law to provide for indigent defense in municipal courts -- Proviso 61.12 even prohibits the South Carolina Commission on Indigent Defense from providing indigent defense in municipal courts unless municipalities agree to pay for such services. The Judge says a deliberate decision to create criminal courts that operate without providing counsel to indigent defendants is a violation of the Sixth Amendment, which certainly is actionable under Section 1983. Here, the Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. The Defendants further argue that even if damages are recoverable "in theory," they cannot show their alleged damages arising from incarceration were actually caused by the deprivation of counsel, because the Plaintiffs cannot show that they would have avoided incarceration but for the absence of counsel. The Judge finds that the proper measure of damages in the event the Plaintiffs are unable to show the alleged constitutional violations caused prejudice to their defenses in their criminal cases is not an issue before the Court at this time. Finally, the Defendants argue the Rooker-Feldman doctrine prohibits the Plaintiffs' claims because they seek redress for injuries allegedly caused by a state court decision. The Judge finds that the Plaintiffs' claims under Section 1983 are not an attempt to "sidetrack" the direct appeal process for state convictions for shoplifting, assault, or motor vehicle violations, but, rather, are claims independent of the underlying state criminal judgments. If Rooker-Feldman does not bar lower federal court review of the statute governing a state court's judgment, the Judge finds then that it surely does not bar lower federal court review of a municipal policy merely because that policy governs some aspect of a state court's administrative practices. For these reasons, Judge Gergel denied the Defendants' motion to dismiss. A full-text copy of the Court's May 16, 2018 Order and Opinion is available at https://bit.ly/2sX64yt from Leagle.com. Tina Renee Bairefoot, Plaintiff, represented by Benjamin Rush Smith, III -- rush.smith@nelsonmullins.com -- Nelson Mullins Riley and Scarborough, Ezekiel Reifler Edwards, American Civil Liberties Union, pro hac vice, Stuart Murray Andrews, Jr. -- stuart.andrews@nelsonmullins.com -- Nelson Mullins Riley and Scarborough, Susan King Dunn -- sdunn@aclusouthcarolina.org -- ACLU SC National Office & Twyla Carter -- tcarter@aclu.org -- American Civil Liberties Union, pro hac vice. Dae'Quandrea Trevell Nelson & Nathan Lee Fox, individually and on behalf of a class of all others similarly situated, Plaintiffs, represented by Benjamin Rush Smith, III, Nelson Mullins Riley and Scarborough, Stuart Murray Andrews, Jr., Nelson Mullins Riley and Scarborough & Susan King Dunn, ACLU SC National Office. Beaufort South Carolina, City of & Bluffton South Carolina, Town of, Defendants, represented by Kenneth Paul Woodington -- kwoodington@dml-law.com -- Davidson Morrison and Lindemann & William Henry Davidson, II -- wdavidson@dml-law.com -- Davidson and Lindemann PA. BEHR PROCESS: Court Grants Stay Pending Related Case Disposition ---------------------------------------------------------------- The United States District Court for the Eastern District of California stayed the case captioned MICHAEL HAMILTON, individually and on behalf of all others similarly situated, Plaintiff, v. BEHR PROCESS CORP.; BEHR PAINT CORP.; MASCO CORP.; THE HOME DEPOT, INC.; and HOME DEPOT U.S.A., INC., Defendants, Case No. 2:17-cv-01765-KJM-EFB (E.D. Cal.), pending consideration of nationwide class settlement filled in a related case captioned Bishop, et al., v. Behr Process Corporation, et al., Case No. 1:17-cv-04464 (N.D. Ill.), and, if preliminary approval is granted, through the disposition of any forthcoming motion for final approval. A full-text copy of the District Court's May 14, 2018 Order is available at https://tinyurl.com/ybtnsaug from Leagle.com. Michael Hamilton, Plaintiff, represented by Charles E. Schaffer - - cschaffer@lfsblaw.com -- Levin Sedran & Berman, pro hac vice, Melissa S. Weiner -- weiner@halunenlaw.com -- Halunen Law, pro hac vice, Michael McShane -- mmcshane@audetlaw.com -- Audet & Partners, LLP, Ling Y. Kuang -- lkuang@audetlaw.com -- Audet & Partners, LLP & Sean Clinton Woods -- cwoods@audetlaw.com -- Audet & Partners, LLC. Behr Process Corporation, Behr Paint Corporation & Masco Corporation, Defendants, represented by Kathleen P. Lally -- kathleen.lally@lw.com -- Latham & Watkins LLP, pro hac vice, Mark S. Mester -- mark.mester@lw.com -- Latham & Watkins LLP, pro hac vice & Michael J. Reiss -- michael.reiss@lw.com -- Latham & Watkins LLP. Home Depot, Inc. & Home Depot U.S.A., Inc., Defendants, represented by Jeffrey K. Douglass -- jdouglass@mmmlaw.com -- MORRIS, MANNING & MARTIN, LLP, Robert P. Alpert -- ralpert@mmmlaw.com -- Morris, Manning & Martin, LLP, William Ross Warne -- wwarne@downeybrand.com -- Downey Brand, LLP & Avalon C. Johnson Fitzgerald -- afitzgerald@downeybrand.com -- Downey Brand LLP. BHP: Hunter Valley Casual Coal Miners Join Class Action ------------------------------------------------------- Annabelle Regan, writing for ABC Newcastle, reports that a class action representing hundreds of Hunter Valley coal workers will examine what it means to be a casual employee in Australia. The BHP-owned Mount Arthur coal mine at Muswellbrook is the largest coal mine in New South Wales with a production workforce of about 1,900 people, including direct employees and labour hire contractors. The law firm leading the class action, Canberra-based Adero Law, said it would be run on behalf of about 400 casual workers. The law firm alleges BHP has taken advantage of contract labour- hire companies Chandler Macleod and Tesa, which engage workers as casual rather than permanent employees. Stability 'destroyed' Former coal miner Simon Turner is the lead claimant. He has not worked since a workplace injury in 2015 left him with a total and permanent disability. The 47-year-old suffered spinal injuries after the truck he was operating at the Mount Arthur coal mine was hit by a coal excavator. But he claims he was refused the industry standard accident compensation because he was classified as a casual worker. He said he had worked the same role as a permanent employee for more than a year, but now had been left with nothing. "It's very hard because you've got the same qualifications and work the same roster and you get paid less," Mr Turner said. "You don't have any job security, you don't have any time to spend with family to take holidays, you go to work sick. "Your whole family life and stability is basically destroyed and taken away from you." Adero Law principal Rory Markham said the class action would allege that BHP was involved with Chandler Mcleod and Tesa over a period of six years to casualise its workforce. He hoped the class action would change the casualisation of the Australia mining workforce. "When you expect someone to show up for 18 months on the same roster, when you expect them to ask for leave in advance, an industry where you have to put in a leave certificate but told you're engaged hour to hour, you are making a mockery of a casual engagement and you're really calling it a simple sham," Mr Markham said. It is not just former casual workers who are taking part in the class action. Grahame Beech is a current casual operator at the Mount Arthur coal mine and was recruited through Tesa. He has been a casual employee for six years. "No one should stay casual for six years in any job," he said. Mr Beech said there was a clear distinction at the worksite between casual and permanent employees. "We're just called 'connies' [contractors]. There definitely is a culture difference." Mr Turner said casuals were always hopeful they would be offered a permanent job. "That's the magical carrot that's dangled in front of everyone," he said. "Turn up to all your shifts, don't have any time off, take all your breaks, do your work . . . you might have a permanent job someday." Claims valued at more than $40 million Mr Markham said the class action was closed with about 400 people signing on. However, when it is officially filed and served it will be deemed an open action that will cover all workers that fall within the class definition. "The claims themselves are in the value of in excess of $40 million," he said. "We believe it's covering between 800 and 1,500 individuals that were engaged as casual at the Mount Arthur site in the period of the last six years." Adero Law said it was investigating further action against other mining companies. BHP said it had not received any formal communications about the claims being made. Chandler Macleod said it had not been notified of any action against it, and in the event of any action it would respond to the court process. Another labour hire company, Programmed, which acquired Tesa, has been contacted for comment. [GN] BHP: Adero Law Launches Class Action on Behalf Casual Mineworkers ----------------------------------------------------------------- Ian Kirkwood, writing for Newcastle Herald, reports that a Canberra law firm said it's about to lodge the necessary documents and will kick off a "$50 million" class action against casual employment in the coal industry at the Beresfield Bowling Club on June 26. The Federal Court action launched by Adero Law and backed by UK litigation funder Augusta Ventures Ltd grew out of a campaign by a former Mount Arthur casual, Simon Turner, who was badly injured in a December 2015 truck accident at the mine while employed by labour hire firm Chandler Macleod. The Newcastle Herald wrote a series of articles in 2016 about Mr Turner's efforts to highlight the plight of casual mineworkers. He says that while much of the industry -- employers, regulators and the mineworkers' union -- has been ignoring or disputing what he was saying, the Canberra law firm has not. After looking at Mr Turner's claims, lawyer Rory Markham says a substantial proportion of the NSW and Queensland coalmining workforce are employed under conditions that are at odds with the Black Coal Industry Mining Award 2010 and The Fair Work Act 2009. Although numerous enterprise agreements have been registered allowing casual employment in the mines, the award says mineworkers must be employed "full-time" or "part-time", with staff positions such as supervisors, surveyors, chemists and technicians the only ones to be employed as "casuals". "The action we are launching is the first of several in the pipeline and it will reveal an industry-wide problem," Mr Markham said. He said the conditions at Mount Arthur were far from unique in the coal industry and Adero was looking at legal action against another big miner, Glencore, and its contractors, Programmed and Skilled, and at Coal & Allied and its recruitment company SubZero. He said some mines had as many as 40 per cent of their workforce classed as casuals. "This is yet another chapter in the increasing loss of job security for Australian workers and the loss of all the benefits that permanent classification affords," Mr Markham said. Adero has been advertising throughout the coalfields and holding public information sessions searching for mineworkers to sign up to the legal action. Mr Markham says 400 people have said they wished to join on, and he expected that number could hit 800 or 1500. The companies Adero says are targeted in the class action have previously said they had not been formally notified of any legal proceedings. The mineworkers' union declined to comment. BHP is also facing a class action from another specialist law firm, Phi Finney McDonald, which argues investors were misled over the 2015 collapse of a dam at the Samarco iron ore mine in Brazil. [GN] BIG TOP: Must Produce Employees Information in "Pizano" ------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Plaintiffs' Motion for an Order to Authorize Notice in the case captioned JOSE PIZANO, Plaintiff, v. BIG TOP PARTY RENTALS, LLC d/b/a BIG TOP TENT & PARTY RENTALS, LLC, and MARLENE LEONARD, Defendants. Case No. 15-cv-11190. (N.D. Ill.) The Plaintiff filed a motion for an order to authorize notice to similarly situated persons pursuant to 29 U.S.C. Section 216(b). The Plaintiff alleges that he regularly worked in excess of forty hours a week, but was not paid overtime compensation for all of this time. Specifically, he was not compensated for work that includes time loading trucks at the beginning of the day, unloading trucks and the end of the day, and traveling from job to job and installing tents. He alleges that he and other workers would punch in each day before beginning to load Defendant's trucks and punched out at the end of each day after unloading the truck and cleaning off tools. The plaintiffs have the burden of showing that other potential claimants are similarly situated by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. If a plaintiff is able to show that other potential plaintiffs are similarly situated, courts may conditionally certify the case as a collective action and allow the plaintiff to send notice of the case to similarly situated employees who may then opt in as plaintiffs. Conditional Certification The Defendants recognize that the Plaintiff need only make a reasonable factual showing that members of the proposed collective action are similarly situated, but argue that the Court should deny the Plaintiff's request to issue a notice in this case because the requisite factual showing is typically supported by discovery but discovery has not taken place in this case due to the de minimus value of the Plaintiff's claim. This satisfies the Plaintiff's burden of a making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. Accordingly, the Plaintiff is permitted to send notice to similarly situated persons pursuant to 29 U.S.C. Section 216(b). Form and Content of Notice Time Period The Plaintiff asks that the notice be sent to all persons employed by the Defendants since December 11, 2012. The three year-time frame identified stems from the statute of limitations for claims brought under the Fair Labor Standards Act (FLSA). Specifically, the FLSA requires that an action be commenced within two years after the cause of action accrued, unless the violation was willful, in which case the statute of limitations is three years. However, an FLSA lawsuit is commenced: on the date when the complaint is filed; except that in the case of a collective or class action, it shall be considered to be commenced in the case of any individual claimant (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear on the subsequent date on which such written consent is filed in the court in which the action was commenced. Potential plaintiffs may be able to invoke equitable tolling as a result of the Defendants' failure to post the required FLSA notice. The fact that some potential plaintiffs may need to invoke equitable tolling to defeat the Defendants' statute of limitations argument does not negate the fact that they are similarly situated to the Plaintiff. The Plaintiff therefore is permitted to send notice to all employees who between December 11, 2012 and present have been subjected to Defendants' policy of classifying any or all hours worked in excess of 40 hours as ride time. Transmittal of Notice The Plaintiff asks for authorization to transmit the approved Section 216(b) notice (1) by first class U.S. Mail, using an envelope containing the language "Important: Court-Ordered Notice. Please Read Immediately" (2) in employee pay envelopes, and (3) in a posting at the Defendants' office. The Defendants argue that the Plaintiff's proposed methods of transmittal of the notice are prejudicial because they are duplicative and aimed at harassing Defendants' employees. In Woods v. New York Life Insurance Company, the Seventh Circuit held that Section 216(b) notices should not go out on court letterhead. 686 F.2d 578, 581 (7th Cir. 1982). The Court reasoned: [W]e think it improper for the district court to direct that the notice go out on its letterhead, over the signature of the clerk of court or other judicial officer. We can think of no good reason for apparent judicial sponsorship of the notice, at a stage in the litigation when there has been no determination that the plaintiff's allegations have any merit; and we can think of a good reason against it, which is that the judicial imprimatur is likely to be misunderstood as a representation that the suit probably has merit. Even though the notice disclaims that the Court has taken a position on the case's merits, the language court-ordered notice indicates that the notice is being sent at the direction of the Court, not merely with the authorization of the Court. If the Plaintiff wishes to include alternative language, the parties are directed to meet and confer regarding other possible language that would indicate that the contents of the envelope are important, but that would not indicate that the Court has taken a position on the merits of the case. Accordingly, the motion is granted in part and denied in part. The Defendants are ordered to submit the names and addresses of all employees who between December 11, 2012 and present have been subjected to the Defendants' policy of classifying any or all hours worked in excess of 40 hours as ride time. A full-text copy of the District Court's May 14, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ybgrn4a8 from Leagle.com. Jose Pizano, Plaintiff, represented by Alvar Ayala, Workers' Law Office, P.C., Christopher J. Williams, Workers' Law Office, PC, Javier Eduardo Castro, Raise The Floor Alliance & Lydia Colunga- Merchant, Raise the Floor Alliance. Big top & Party Rentals, LLC d/b/a Big Top Tent & Party Rentals, LLC & Marlene Leonard, Defendants, represented by James M. Urtis, Attorney at Law. BRISTOL-MYERS: Bernstein Litowitz to Lead Shareholder Class Suit ---------------------------------------------------------------- In the case, JENNIFER TUNG, et al., Plaintiffs, v. BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants, Case No. 18-CV-1611 (JPO) (S.D. N.Y.), Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York appointed Arkansas Public Employees Retirement System and Louisiana Sheriffs Pension & Relief Fund ("APERS") as the Lead Plaintiffs; and APERS' choice of Bernstein Litowitz Berger & Grossmann LLP as the lead counsel on behalf of the proposed class. This is a putative shareholder class action against Bristol-Myers Squibb and its executives. The crux of the Plaintiffs' allegations is that Bristol-Myers Squibb misled investors about the efficacy of one of its drugs, and that the Plaintiffs' stock value dropped as a result. Six movants sought to be appointed the Lead Plaintiff. Judge Oetken finds that the original Plaintiff, Tung, has not formally moved to be appointed the Lead Plaintiff, and she has not made a submission showing the total amount of losses she allegedly suffered. In her stead, six movants vied to represent the class. One by one, however, all movants except APERS either withdrew their motions or recognized that APERS has shown that it suffered the greatest loss. The Defendants have taken no position on these motions. The only major distinction between the movants is the amount of loss suffered. Since the competing groups of the Plaintiffs are nearly identical in all other respects, the amount of loss is dispositive in favor of APERS. None of the other movants claim to have suffered greater losses. For the foregoing reasons, Judge Oetken granted the motion at Docket Number 24. The motions at Docket Numbers 7, 9, 13, 16, and 20 are denied. He denied as moot the motion at Docket Number 31. He appointed APERS as the Lead Plaintiffs and approved Bernstein Litowitz Berger & Grossmann LLP, as the lead counsel for the class. A full-text copy of the Court's May 16, 2018 Opinion and Order is available at https://bit.ly/2t8t259 from Leagle.com. Arkansas Public Employees Retirement System & Louisiana Sheriffs Pension & Relief Fund, Lead Plaintiffs, represented by Jesse Lee Jensen -- jesse.jensen@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Lauren Amy Ormsbee -- laurenm@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Michael Dains Blatchley -- michaelb@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP & Salvatore Jo Graziano -- sgraziano@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. Jennifer Tung, Individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Metzler Asset Management GmbH & Erste-Sparinvest Kapitalanlagegesellschaft mbH, Plaintiffs, represented by William H. Narwold -- bnarwold@motleyrice.com -- Motley Rice LLC. Lehigh County Employees' Retirement System, Movant, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A. Western Washington Laborers-Employers Pension Trust, Movant, represented by Daniel Lawrence Berger -- dberger@gelaw.com -- Grant & Eisenhofer P.A. Oklahoma Firefighters Pension and Retirement System, Movant, represented by Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow, LLP & Francis Paul McConville -- fmcconville@labaton.com -- Labaton & Sucharow LLP. Felix Iapichino & Michael Kristensen, Movants, represented by Jeremy Alan Lieberman, Pomerantz LLP. Bristol-Myers Squibb Company, Michael Giordano, Fouad Namouni, Francis M. Cuss, Giovanni Caforio, Lamberto Andreotti & Charles A. Bancroft, Defendants, represented by Yosef J. Riemer -- yosef.riemer@kirkland.com -- Kirkland & Ellis LLP & Matthew Osborn Solum -- matthew.solum@kirkland.com -- Kirkland & Ellis LLP. BLOOMINGDALE'S INC: Illegally Charged "Rayford" Bag Tax ------------------------------------------------------- Sonya Rayford, individually, and on behalf of all others similarly situated, Plaintiff, v. Bloomingdale's, Inc., an Ohio corporation,, Case No. 2018CH06028 (Ill. Cir., May 10, 2018), seeks actual damages, attorney's fees and costs, including interest thereon and all such further and other relief for violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act. On November 9, 2017, Reyford purchased a winter coat at the Bloomingdale's store located at 900 North Michigan Ave, in Chicago, Illinois. Bloomingdale's improperly imposed the Bag Tax on a garment bag not subject to such, resulting in an overcharge. [BN] Plaintiff is represented by: Thomas Zimmerman, Jr., Esq. Matthew C. De Re, Esq. Nickolas J. Hagman, Esq. Maebetty Kirby, Esq. Sharon A. Harris, Esq. ZIMMERMAN LAW OFFICES, P .C. 77 West Washington Street, Suite 1220 Chicago, IL 60602 Tel: (312) 440-0020 Fax: (312) 440-4180 Email: amy@attorneyzim.com matt@attorneyzim.com maebetty@attorneyzim.com nick@attorneyzim.com sharon@attorneyzim.com CALIFORNIA: Magistrate Recommends Dismissal of "Warfield" --------------------------------------------------------- In the case, BRODERICK JAMES WARFIELD, Plaintiff, v. BOWERS, et al., Defendants, Case No. 2:17-cv-2467-EFB P (E.D. Cal.), Magistrate Judge Edmund F. Brennan of the U.S. District Court for the Eastern District of California recommended that the Plaintiff's amended complaint be dismissed without leave to amend as frivolous. The Plaintiff proceeds without counsel in an action brought under 42 U.S.C. Section 1983. He commenced the action while confined to a county jail, and has since been transferred to Napa State Hospital. In addition to filing two complaints, he has filed his IFP application under 28 U.S.C. Section 1915. The Plaintiff claims that this is a class action and that Aladdin Bail Bonds illegally seized property of FBI # 0155210W6 by an arbitrary contract. He does not explain who makes up the purported class, the nature of the "arbitrary" contract, or identify the allegedly seized property in any way. Nevertheless, he claims that any rejection of the claim by any Defendant including the Governor of the State of California will be shot on sight and killed by federal agents that have been stalking them and wiretapping wireless all electronic devices by satellite transmission. Some of the listed Defendants, of which there are 96, are inanimate objects. Others are groups of unidentified people. Other individual Defendants include the "waitress from old skyline bar who spilled drink," and "Musician Bruno Mars." According to the Plaintiff, the Governor and other government officials have engaged in various forms of criminal activity, including first degree murder, capital case murder, child molestation, indecent exposure, prostitution, and musical piracy. As punishment for those crimes, he requests male genital castration, female reproduction of ovaries removed, lobotomy, cranial brain removal, and continuation of bankruptcy proceedings. The Magistrate Judge finds that the Plaintiff's complaint appears to be a compilation of disjointed delusional assertions that defy comprehension and must be dismissed. None of his allegations state a cognizable Section 1983 claim (indeed, his allegations are barely intelligible) and, factually, the allegations can only be categorized as fanciful. In addition, the disjointed, unintelligible nature of the Plaintiff's complaint convinces the Magistrate Judge that further attempts to refine these allegations would not be fruitful. There is simply no version of these facts and arguments which can be shaped into a valid claim. He will recommend that the amended complaint be dismissed as frivolous, without leave to amend. The Magistrate Judge has reviewed the application and trust fund account statement and finds that it makes the showing required by 28 U.S.C. Section 1915(a)(1) and (2). Thus, he will grant the Plaintiff's IFP application will be granted. Accordingly, he granted the Plaintiff's application to proceed in forma pauperis. The Clerk is directed to randomly assign a United States District Judge to the case. Further, Magistrate Judge Brennan recommended that the Plaintiff's amended complaint be dismissed without leave to amend as frivolous, and directed the Clerk to close the case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. Section 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. A full-text copy of the Court's May 16, 2018 Order and Findings and Recommendations is available at https://bit.ly/2MsiB59 from Leagle.com. Broderick James Warfield, Plaintiff, pro se. CANADA: Civil Trial in BC Foreign Buyers Tax Case Begins -------------------------------------------------------- Jason Proctor, writing for CBC News, reports that a landmark civil trial kicked off the June 25 testing the legality of a foreign buyers tax enacted by the province of British Columbia in response to a housing affordability crisis. The legal battle pits the government against a proposed class of foreign nationals who claim they've been discriminated against in violation of the Canadian Constitution. A lawyer for the province told B.C. Supreme Court Justice Gregory Bowden that the volumes of arguments, affidavits and authorities on display in his courtroom belied the very simple set of circumstances that gave birth to the law. "There was an affordability crisis in the Greater Vancouver real estate market," Karen Horsman said as she laid out the justification for the tax. "Local residents were in effect being priced out of the market." Is the tax legal? Introduced in July 2016 under the previous Liberal government, the tax initially required foreign entities (including foreign nationals) to pay an additional 15 per cent on the purchase of residential property in Greater Vancouver. The current NDP government increased the amount to 20 per cent in February and expanded its reach to include the Fraser Valley, Capital Regional District, Nanaimo Regional District and the Central Okanagan. The province has asked Bowden to determine whether or not the tax is legal in a summary trial -- as opposed to beginning with a certification hearing on the class action. The province will argue that the tax is not in breach of the Charter of Rights and Freedoms. And that even if it were, the infringement is the kind of reasonable limit allowed given the pressing need for political action in the face of the housing crisis. 'Those are condensed?' The plaintiff, Jing Li, is a Chinese student who moved to Canada in 2013 to complete a master's degree in public administration. Weeks prior to the introduction of the tax, she claims she signed a contract for the purchase of a $559,000 home in Langley. She says the foreign buyers tax added an additional $83,850 to her bill. Ms. Li wants the tax declared illegal and is looking for the restitution of hundreds of millions of dollars collected by the province from foreign nationals in the past two years. Ms. Li's legal team consists of five lawyers, including Joseph Arvay, a noted constitutional expert who is currently assisting the province as external counsel in its battle over the Trans Mountain pipeline. Ms. Horsman is one of three lawyers arguing on behalf of the province. She began by calling Bowden's attention to the mountain of "condensed" legal volumes laid out in front of him. "Those are condensed?" he asked. 'A smokescreen and not a theory' But Ms. Horsman said the issue at hand was actually fairly straightforward: "The big picture can tend to get lost when the court is asked to get down in the weeds." She said the court should consider the situation preceding the introduction of the tax. By July 2016, the benchmark price of a single-family home in Greater Vancouver had risen to $1.2 million. The annual rate of house price inflation had reached nearly 30 per cent, an amount that far outpaced the growth in local income. As a result, young families couldn't afford to buy homes. The future looked uncertain and while there was undeniably more than one factor, public commentary increasingly pointed to foreign demand as a significant part of the problem. "By 2016, Vancouver was not only the most unaffordable real estate market in Canada," Ms. Horsman said. "Vancouver had become one of the most unaffordable real estate markets in the world." Ms. Horsman noted that markets around the world -- Sydney, Melbourne, Hong Kong and London -- saw prices rise as housing came to be seen more as an investment than a place to live. She claimed all those factors contributed to the legitimacy of the government's concern and the need to act. She accused Ms. Li of clouding the issue by referring to historic discriminatory acts like the Chinese head tax as a way to suggest the foreign buyers tax is motivated by racism. "That . . . is a smokescreen and not a theory," Ms. Horsman told the judge. "There is nothing nefarious or racist in a government enacting measures that apply to all foreign buyers." Duelling experts Both sides came armed with affidavits from a slew of economists and professors to buttress their arguments. Two of the most widely quoted academics on the subject -- both attached to the University of B.C.'s Sauder School of Business -- were cited in the day's proceedings. 5 things to watch in Canada's housing market this year Tsur Somerville was retained by the province and Thomas Davidoff by Li. Ms. Horsman sought to use Davidoff's words from media interviews against him in order to undermine doubts the plaintiffs have raised about effectiveness of the tax. Her written arguments include a quote from an interview in July 2016 in which Davidoff called the tax "a win" for the Liberals. Analysis from one of the province's experts concluded the tax has had its desired impact, cooling the residential market. Ms. Horsman will spend the next two days outlining B.C.'s case. Ms. Li's lawyers were expected to begin their arguments on June 28. [GN] CANADA: RCMP Faces Class Action Over Bullying, Harassment Claims ---------------------------------------------------------------- Rachel Houlihan and Dave Seglins, writing for CBC News, report that Canada's national police force is facing a mammoth $1.1- billion lawsuit -- believed to be the biggest in the force's history -- over bullying and harassment claims that could eventually represent thousands of male and female RCMP officers, civilian staff, and even volunteers dating back decades. Two veteran male RCMP officers are the lead plaintiffs. They recount workplace horror stories and health problems they claim stem from pervasive and "systematic bullying, intimidation and harassment" within the force, according to the 44-page suit filed on June 22 in Federal Court. In an exclusive interview, Staff Sgt. Geoffrey Greenwood recalled the fallout he says he endured after reporting allegations of bribery and corruption against fellow drug officers in 2008. "It rocked me to my core," said Sgt. Greenwood, who is now with the RCMP detachment in Red Deer, Alta. "I was kind of demonized and I was the one that was left to be the problem, and really all I did was my job." This lawsuit is expected to eclipse previous harassment cases against the RCMP, including the $100-million settlement in 2016 for the more than 3,100 female officers who claim discrimination and sexual harassment on the job. The new lawsuit seeks compensation for potentially tens of thousands of people, on a force that has 29,751 employees, not to mention thousands more dating back decades. If the court certifies it as a class action, it could cover anyone who has ever worked for the RCMP and suffered what former commissioner Bob Paulson acknowledged in 2016 was a "culture of bullying and intimidation and general harassment." None of the allegations in the lawsuit has been tested in court. The Federal Court has only just received the claim and the government and RCMP have not yet filed a response. Officer claims he was 'villainized' Sgt. Greenwood's troubles began in 2007 when he was based in Yellowknife, N.W.T. He was leading a major drug and money- laundering investigation across the North. According to the lawsuit, Greenwood was assigned to look into allegations from a woman arrested for money-laundering who alleged some RCMP officers were on the take. She claimed one officer was paid $60,000 "in exchange for information about the identity of RCMP undercover agents, surveillances, and upcoming drug raids," the lawsuit reads. Sgt. Greenwood also listened to audio surveillance tapes implicating several more officers. Bolstered by a second team of RCMP investigators who believed the woman, Sgt. Greenwood reported it all to his bosses. According to the lawsuit, Sgt. Greenwood quickly found himself on the receiving end of reprisals and was ordered to drop his investigation. "That manager wanted to bury that issue. And for me, that is not in my fibre," Sgt. Greenwood said in an interview. "I can't cover up something like that." The lawsuit alleges he faced trumped-up internal charges that were an "egregious form of bullying" intended to punish him. He was eventually transferred out of the North in 2010 after allegedly being ostracized and ridiculed by his bosses. "I ended up kind of leaving a shell of a person," Sgt. Greenwood said. "Your whole character is torn apart and stripped down and you're villainized." 'Blacklisted for speaking out' Sgt. Todd Gray, the lawsuit's second lead plaintiff, had what appeared to be the postcard-perfect job back in the mid-1990s as a member of the RCMP Musical Ride. "This is the image of the RCMP. That's just the show," Sgt. Gray said in an interview. "But the struggles that go on with travelling, and favouritism, and bullying, and being blacklisted for speaking out . . . those are the things that don't come out." Sgt. Gray alleges in this lawsuit that on a number of occasions, he was forced to ride in the horse trailer on long overnight trips, resting on a bunk next to the horses without heat, electricity or access to a washroom. Sgt. Gray alleges that in 1998, during his final year on the RCMP Musical Ride, after injuring his back, he was ordered to continue riding and was intentionally assigned a horse known to buck and kick. In one practice the horse reared up, toppled over and landed on his right leg, injuring him, the lawsuit alleges. In the early 2000s, Sgt. Gray was assigned to a small detachment in Nunavut. Sgt. Gray claims in the court pleading that one of his superiors "frequently abused the local First Nations populations." "[The commander] ending up kicking Mr. Gray in the face when he tried to kick a 16-year-old First Nations boy in the ribs," the lawsuit reads. Sgt. Gray says he reported the incident to more senior managers. He alleges that he soon found himself ostracized, denied promotion and given a performance review from the detachment commander that concluded he should be fired. Now 53 and a sergeant in Airdrie, Alta., Sgt. Gray says he's considering retirement given the 'cumulative' psychological toll. "No matter where I go, no matter what province I was in, what division I was in, the same issues are always there," he said in an interview. "It doesn't change across the country." Nowhere for RCMP staff to complain In 2016, facing allegations of sexual harassment involving hundreds of female officers, then RCMP Commissioner Bob Paulson testified before parliament admitting the force had profound problems. "It can't be understood as a sexual harassment problem," Mr. Paulson told the Commons public safety committee. "Sexual harassment has no place in the organization -- don't get me wrong -- but it's the culture of bullying, intimidation, and general harassment that I think needs everybody's focus and attention." The new $1.1-billion lawsuit seizes on Paulson's statement and cites a long list of formal reports and studies that also conclude the RCMP suffers from widespread workplace harassment. A key argument in the claim is that until 2015, RCMP employees were precluded from forming a union and so had nowhere to complain other than to their direct bosses. "Complaints of any kind were treated as an affront to the chain of command in the paramilitary structure of the RCMP, leading to direct and indirect retaliatory conduct," the lawsuit alleges. The suit seeks $1 billion in damages for loss of income due to lost promotions, early retirements and losses to pensions. It also seeks $100 million in punitive damages and an additional $30 million to compensate family members of RCMP employees adversely affected. [GN] CHURCH & DWIGHT: Court Narrows Claims in "Chavez" Suit ------------------------------------------------------ Judge John J. Tharp, Jr. of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Church's motion to dismiss the case, DAVID CHAVEZ, individually and on behalf of others similarly situated, Plaintiff, v. CHURCH & DWIGHT CO., INC., Defendant, Case No. 17 C 1948 (N.D. Ill.). Church is a publicly traded Delaware corporation based out of New Jersey that manufactures and distributes household products, including dietary supplements. Vitafusion is one of many dietary supplements that Church produces and sells. Church markets Vitafusion as an excellent source of certain B vitamins, including folic acid. It advertises on its website that it delivers high quality dietary supplements in the gummy vitamin industry and places the utmost importance on nutritional accuracy and high product quality. Testing by Chavez's counsel shows that Vitafusion gummies contain 1232.2 mcg of folic acid -- more than three times the amount listed on its label. According to the Office of Dietary Supplements at the National Institute of Health ("NIH"), the Upper Tolerable Intake Limit ("UTIL") for folic acid in a supplement is 1,000 mcg. Consuming more than this amount may cause adverse health effects and, in some circumstances, could be dangerous. Chavez purchased and consumed Vitafusion on a number of occasions over the last few years believing that it would provide him with the amount of B vitamins stated on the bottle and benefit his health. He alleges that he would not have done so had he known that the product contained a level of folic acid above the UTIL. Chavez brought suit in March 2017 and seeks to represent three classes of Vitafusion consumers: one nationwide, one multistate, and one based in Illinois. Although the amended complaint comprises six counts, it asserts four claims for relief. The first claim is that Church mislabels the amount of folic acid found in Vitafusion. In Counts I and II, Chavez contends that the mislabeling violates several state consumer laws, including the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). Count III asserts that the label is fraudulent under Illinois common law, while Counts IV and V contend that the label breaches several express and implied warranties under the Uniform Commercial Code in all 50 states and the District of Columbia. Finally, in Count VI, Chavez seeks to disgorge Church's Vitafusion revenues under an unjust enrichment theory because the product is mislabeled. Chavez's other three claims also relate to Church's alleged mislabeling of Vitafusion, but are nonetheless distinct. His second claim for relief is that the Vitafusion label fails to disclose that it contains an "unsafe" level of folic acid, while his third claim is that Church misrepresents on its website the quality of its dietary supplements and the level of accuracy of its nutrition labels. Chavez's legal theory for these claims is that Church's lack of disclosure and online misrepresentations violate state consumer protection laws (Counts I and II) and constitutes fraud (Count III). His final claim, embodied only in Count V, is that because Vitafusion contains an unsafe level of folic acid, the supplement is unfit for consumption. Church responded to the amended complaint by filing a motion to dismiss under Rule 12(b)(6), arguing that Chavez's claims are preempted by federal nutrition labeling laws. Alternatively, it asks the Court to abstain from hearing the case until the Federal Drug Administrative ("FDA") resolves a technical issue at the heart of this dispute. And, as a last resort, Church argues that Chavez cannot represent a class of consumers outside of Illinois due to a lack of standing and personal jurisdiction. Judge Tharp granted in part and denied in part Church's motion to dismiss. Chavez's claim that Church misrepresents the quality of its dietary supplements and labeling on its website is dismissed without prejudice. His claims also are dismissed to the extent they are asserted on behalf of any putative class members who did not purchase or consume Vitafusion within Illinois. The Court lacks personal jurisdiction over Church with respect to claims asserted by such consumers and, as a result, any claims asserted on their behalf are denied without prejudice to being reasserted in a court that can exercise personal jurisdiction over the Defendant. In all other respects, the Judge denied Church's motion. To be sure, whether the FDA recognizes a 1,000 mcg upper limit bears on the reasonable excess analysis as well. But contrary to Church's contention, the Judge finds that it does not resolve the issue conclusively. At bottom then, Chavez plausibly alleges that Vitafusion is misbranded within the confines of the FDCA and thus he cannot conclude at this stage that his mislabeling claim is preempted. The Judge also finds that Chavez is foreclosed from representing either a nationwide and multistate class comprising non-Illinois residents in the suit. He is unpersuaded by the reliance of some district courts on the fact that the citizenship of unnamed class members is disregarded for purposes of determining diversity -- that is, subject-matter jurisdiction. The focus of the due process inquiry is on whether the Defendant's contacts with the state of Illinois give rise to the claims of nonresident Plaintiffs. Whether the citizenship of the unnamed class members should be disregarded for purposes of determining whether diversity jurisdiction exists simply has no relevance to the answer to that question. Because Chavez's mislabeling claim survives, Count VI survives even if it is tied to that claim under the ICFA. Church challenges the viability of Count VI, contending that unjust enrichment is not an independent cause of action and must be dismissed because it is predicated on Chavez's claims under the ICFA. The Judge holds that Church is wrong on both accounts. The Illinois Supreme Court on several occasions has described unjust enrichment as an independent cause of action. Church's argument to the contrary is based not on more recent Illinois Supreme Court authority than Raintree Homes, Inc. v. Village of Long Grove, but on the Seventh Circuit's decision in Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., a case in which the Court of Appeals held that unjust enrichment is not a standalone claim under Illinois law. But Church fails to realize that the Seventh Circuit altered course several months later in Cleary v. Phillip Morris Inc. A status hearing is set for May 31, 2018. A full-text copy of the Court's May 16, 2018 Memorandum Opinion and Order is available at https://bit.ly/2t2KkSb from Leagle.com. David Chavez, individually and on behalf of all others similarly situated, Plaintiff, represented by Daniel R. Johnson, Waskowski Johnson Yohalem LLP & Gary Michael Klinger -- gklinger@kozonislaw.com -- Kozonis Law. Church and Dwight Co., Inc., Defendant, represented by Baldassare Vinti -- bvinti@proskauer.com -- Proskauer Rose LLP, pro hac vice, Bart H. Williams -- bwilliams@proskauer.com -- Proskauer Rose LLP, pro hac vice, Kristen Leigh Jones -- kljones@proskauer.com -- Proskauer Rose Llp & Lawrence I. Weinstein -- lweinstein@proskauer.com -- Proskauer Rose LLP, pro hac vice. CIGNA CORP: 4th Circuit Affirms Summary Judgment in "Gordon" Suit ----------------------------------------------------------------- In the case, KIMBERLY P. GORDON, Plaintiff-Appellant, v. CIGNA CORPORATION; LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendants- Appellees, and UCG HOLDINGS LP; OIL PRICE INFORMATION SERVICES, LLC, Defendants, Case No. 17-1188 (4th Cir.), Judge James A. Wynn Jr. of the U.S. Court of Appeals for the Fourth Circuit affirmed the district court's order granting summary judgment in favor of the CIGNA Defendants. Steven Gordon worked for Oil Price Information Services, Inc. and paid premiums on life insurance policies that totaled $300,000 in coverage. But when he died in January 2014, his insurer, LINA, paid his wife and beneficiary, Kimberly Gordon, only $150,000. The reason, LINA claimed, was because Steven Gordon had only been approved for $150,000 in coverage -- not for the full $300,000 in coverage he had been paying for. Kimberly Gordon filed the lawsuit. The suit brought claims not only on behalf of Gordon but also on behalf of a putative class. The proposed class included all current and former employees of any company that is or has been a subscriber to the Group Policy, or any other similar policy issued or administered by the CIGNA Defendants, who paid premiums for Supplemental Life Insurance above the Guaranteed Issue Amount, but for whom the CIGNA Defendants do not have an 'Evidence of Insurability application.' As Defendants in the suit, Kimberly Gordon listed UCG, LINA, and CIGNA. The Complaint claimed the Defendants were liable in two ways. Count I alleged that all the Defendants were fiduciaries under ERISA, and that all of them breached their fiduciary duties by failing to notify Steven Gordon that he needed to submit additional evidence of insurability -- while simultaneously collecting premiums for unapproved coverage. In the alternative, Count II alleged that if any of the Defendants was not an ERISA fiduciary, then that Defendant was still liable for knowingly participating in a breach of trust. Several months after the Complaint was filed -- and before any discovery was conducted -- the CIGNA Defendants moved for summary judgment, and UCG moved to deny class certification. On July 28, 2016, the district court held a hearing on both motions. During the hearing, the counsel for the CIGNA Defendants argued that summary judgment was warranted because, under the terms of the Plan and governing law, neither LINA nor CIGNA was an ERISA fiduciary with respect to the particular conduct at issue, and neither Defendant was aware of the errors that led to Steven Gordon paying excess premiums. In opposition, Kimberly Gordon argued that there was a genuine dispute of material fact as to whether the CIGNA Defendants were ERISA fiduciaries and that summary judgment was premature because she had not yet conducted any discovery. The district court granted the CIGNA Defendants' motion for summary judgment, and denied UCG's motion to deny class certification. First, it concluded that CIGNA was an improper party because CIGNA was only a "holding company" that licensed its trademarks to appear on various products issued by its subsidiaries; in other words, CIGNA "didn't have any role under the plan documents. Next, turning to Gordon's breach of fiduciary duty claim, the district court concluded that LINA had not breached any such duty. Relying on Plan documents, UCG's written concessions to Kimberly Gordon, and affidavits submitted by LINA, the district court reasoned that LINA's role was indisputably that of claims administration; whereas, the administrative role for enrollment and getting people set up in the plan was placed on UCG. As such, Kimberly Gordon's failure to submit the required evidence of insurability was "a slipup" by UCG, not by LINA. The district court also granted summary judgment on Count II, which claimed that all non-fiduciaries knowingly participated in a breach of trust. It found that such a claim could not stand because there was no evidence LINA knew of any breach by a fiduciary; rather, the "unrefuted" evidence showed that the first time LINA knew about the foul-up in collecting the premiums inappropriately was when they got a claim from Kimberly Gordon. Accordingly, the district court granted summary judgment to the CIGNA Defendants on both counts. It, however, denied UCG's motion to quash class certification as "premature," which led UCG to settle with Kimberly Gordon shortly after the motion was denied. With UCG removed from the suit, Kimberly Gordon timely appealed the district court's grant of summary judgment in favor of the CIGNA Defendants. On appeal, she claims the district court erred in three ways: (1) granting summary judgment on both counts of the Complaint; (2) finding that CIGNA was an improper party; and (3) refusing to allow discovery prior to granting summary judgment. Judge Wynn finds that even when viewing the facts in the light most favorable to Kimberly Gordon, no reasonable jury could find that either of the CIGNA Defendants had a fiduciary duty toward the Gordons with respect to soliciting supporting materials for coverage beyond the guaranteed issue amount or notifying new employees that they had not completed the evidence of insurability requirement. Accordingly, the district court's grant of summary judgment on Count I of the Complaint was appropriate. Even if he assumes, without deciding, that the cause of action Kimberly Gordon advances is cognizable, the Judge finds that her claim would still fail, as there is no evidence that the CIGNA Defendants knowingly participated in any breach. Therefore, the district court's grant of summary judgment as to Count II of the Complaint was appropriate. Finally, in line with the Court's recent precedent in Hodgin v. UTC Fire & Sec. Ams. Corp., the Judge finds that the district court did not abuse its discretion in denying Kimberly Gordon's motion under Rule 56(d). She was given a reasonable opportunity to conduct discovery and declined to exercise that opportunity; additionally, she made no showing that the discovery she sought would have created a genuine dispute of material fact. For these reasons, Judge Wynn affirmed the judgment of the district court. A full-text copy of the Fourth Circuit's May 15, 2018 Order is available at https://is.gd/ik2aFi from Leagle.com. ARGUED: Jonathan Tycko -- jtycko@tzlegal.com -- TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellant. Christopher Joseph Boran -- christopher.boran@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP, Chicago, Illinois, for Appellees. ON BRIEF: Anna C. Haac -- ahaac@tzlegal.com -- TYCKO & ZAVAREEI LLP, Washington, D.C.; Daniel S. Kozma -- dkozlaw@aol.com -- LAW OFFICE OF DANIEL S. KOZMA, Washington, D.C.; James E. Miller -- jmiller@sfmslaw.com -- Kolin C. Tang -- ktang@sfmslaw.com -- SHEPHERD FINKELMAN MILLER & SHAH, LLP, Chester, Connecticut, for Appellant. Jeremy P. Blumenfeld -- jeremy.blumenfeld@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania, for Appellees. CIPRO CASES: Cal. App. Dismisses Non-Party Appeal ------------------------------------------------- The Court of Appeals of California, Fourth District, Division One, granted Defendant's Motion to Dismiss Appeal in the case captioned In re CIPRO CASES I & II, No. D071597 (Cal. App.). Objectors Sean Hull, Sarah McDonald and Steven Helfand brought two appeals pertaining to a partial class action settlement between the plaintiffs and certain defendants in the proceeding styled IN RE Ciprofloxacin Hydrochloride Antitrust Litigation, 1:00-MD-01383 (E.D.N.Y.). In the action, the plaintiff class challenged settlement agreements that were reached in a patent infringement case between the maker of Cipro and companies that sought to market and sell a generic version of Cipro. The plaintiffs argued that the settlement agreements between the pharmaceutical companies amounted to unlawful restraints of trade in violation of the Cartwright Act and the Unfair Competition Law. (In re Cipro Cases I & II (2015) 61 Cal.4th 116.). The plaintiffs ultimately settled the case in a series of three settlements with different pharmaceutical defendants. This appeal concerns a 2016 $100 million settlement between the plaintiffs and defendants Hoescht Marion Roussel, Inc. (HMR), The Rugby Group, Inc., and Watson Laboratories, Inc. (the HMR settlement). During the pendency of the appeals, the Supreme Court issued its opinion in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, in which the Court relied on longstanding Supreme Court precedent to reaffirm that unnamed class members may not appeal from a class judgment, settlement or attorney fee award unless those members have become parties to the action by formal intervention or filing a motion to vacate the judgment. After the opinion in Hernandez was filed, the plaintiffs filed a motion to dismiss the objectors' appeals, on the ground that none of the objectors had become parties to the action by intervening or filing a motion to vacate the judgment. The defendants joined in the plaintiffs' motion. McDonald and Helfand voluntarily moved to dismiss their appeal, but Hull filed an opposition to the motion to dismiss. Code of Civil Procedure section 902 establishes that any party aggrieved may appeal. In Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199, the Supreme Court held that unnamed class members lack standing to appeal because they are not parties pursuant to Code of Civil Procedure section 902. Only a party to the record can appeal. Hull argues that Hernandez does not require that his appeal be dismissed. According to Hull, Hernandez is limited to appeals from judgments after a trial on the merits, and should not apply to the settlement of a class action, where a formal objection procedure exists for class members. The Court finds no merit in these arguments. First, it is abundantly clear from the language of Hernandez that the Eggert rule applies not only to class action judgments entered after a trial, but also to settlements and attorney fee awards in class actions. Second, the Court rejects Hull's suggestion that Hernandez should not be applied retroactively to this case because retroactive application would be unfair. Although the HMR settlement agreement contained a provision pertaining to a requirement that any class member that wishes to appeal the order and final judgment, which appeal will delay the distribution under the Settlement Agreement to the Class, post a bond with the court as a condition of prosecuting such appeal, the settlement agreement does not set forth the procedures for initiating an appeal or for obtaining standing to appeal. The provision regarding the posting of a bond merely provides the defendants and the named class plaintiffs with some level of protection against a class member attempting to delay distribution of the settlement by pursuing an appeal. Neither the settlement agreement nor the settlement notice purports to set forth the requirements to file an appeal, and there is no requirement that they do so. Neither document misstates or misinforms class members regarding the requirements for objecting to the settlement or appealing from the court's overruling of such an objection. Hull's claim that the notice violated his right to due process by failing to inform him of the requirement that he become a party of record in order to have standing to appeal thus fails. Accordingly, the Court concludes that because Hull never became a party of record, either by intervening or filing a motion to vacate the judgment, he has no standing to appeal from the judgment. His appeal must therefore be dismissed. A full-text copy of the Cal. App.'s May 14, 2018 Opinion is available at https://tinyurl.com/ybz6yjok from Leagle.com. Bandas Law Firm, Robert W. Clore -- rclore@bandaslawfirm.com -- Lang Hanigan & Carvalho and Timothy R. Hanigan -- trhanigan@gmail.com -- for Objector and Appellant Sean Hull. C. Benjamin Nutley -- nutley@zenlaw.com -- Law Office of John W. Davis and John W. Davis -- john@johnwdavis.com -- for Objectors and Appellants Sarah McDonald and Steven Helfand. Edleson & Rezzo, Joann F. Rezzo -- jr@edrezlaw.com -- Karcher Harmes and Kathryn E. Karcher -- kathryn@karcherappeals.com -- for Defendants and Respondents. Lieff, Cabraser, Heimann & Bernstein, Eric B. Fastiff, Richard M. Heimann, Lin Y. Chan, Michelle A. Lamy; Zwerling, Schachter & Zwerling, Dan Drachler; Joseph Saveri Law Firm, Joseph R. Saveri, Joshua P. Davis, Ryan J. McEwan and Kyla J. Gibboney for Plaintiffs and Respondents. CONDOCERTS.COM: Court Dismisses "Ahrendt" Suit ---------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion to Dismiss the case captioned ROBERT AHRENDT, Plaintiff, v. CONDOCERTS.COM, INC., Defendant, Case No. 17-cv-8418 (N.D.Cal.). Plaintiff Robert Ahrendt alleges that Defendant Condocerts.com violated the Illinois Condominium Property Act (ICPA) and the Illinois Consumer Fraud Act (ICFA) and committed various torts by charging unreasonable fees to obtain real estate documents through its database. The Plaintiff alleges that he could not have obtained the ICPA documents from any other source, and thus had no choice but to pay the Defendant's exorbitant fees so the sale of his condominium could go through. The Plaintiff also alleges that the Defendant pays kickbacks to property managers and does not disclose those kickbacks to condominium sellers who use the Defendant's services. Count I: ICPA Count I claims that the Defendant violated the ICPA by charging unreasonably high fees that lack any connection to the Defendant's actual costs for providing documents. The Defendant argues that this claim fails for several reasons, including that no private right of action for condominium sellers exists under the ICPA. The relevant ICPA provision states: "A reasonable fee covering the direct-out of pocket costs of providing such information and copying may be charged by the association or its Board of Managers to the unit seller for providing the ICPA documents." The Plaintiff was a condominium seller, not a purchaser. He fails to provide any authority implying a private right of action under the ICPA for condominium sellers, or finding that the legislature intended for the ICPA to protect condominium sellers from the harms at issue here. This Court will not usurp the general province of Illinois courts by implying a private right of action for condominium sellers without a clear justification arising from Illinois law. This Court dismisses Count I with prejudice. Count II: ICFA Count II claims that the Defendant violated the ICFA by charging "exorbitant fees," knowing that condominium sellers like the Plaintiff have essentially no alternative source for the ICPA documents. To state a claim under the ICFA, the Plaintiff must allege that: (1) the Defendant used a deceptive or unfair business practice; (2) the Defendant intended that the Plaintiff rely on the deceptive or unfair practice; (3) the deceptive or unfair practice occurred in trade or commerce; (4) the Plaintiff suffered actual damage; and (5) the Defendant's violation of the Act proximately caused the Plaintiff's damage. The Plaintiff argues that he had no choice but to pay the Defendant's inflated prices or risk the sale of his condominium falling through, but the complaint tells a different story. The Plaintiff alleges multiple times that he could have obtained the ICPA documents from the Cook County Recorder of Deeds for a more reasonable price, but then somehow draws a legal conclusion that the ICPA requires the Plaintiff to obtain the ICPA Documents directly from the association's Board of Managers through whatever means directed. This Court need not accept the Plaintiff's legal conclusions as correct. If the Plaintiff could have obtained the documents elsewhere, then he did not face the type of oppressiveness and lack of meaningful choice necessary to establish unfairness. Thus, this Court dismisses Count II without prejudice. Count III: Unjust Enrichment Count III claims that the Defendant unjustly enriched itself by charging and collecting fees that exceeded its out-of-pocket expenses for producing ICPA documents. The Defendant argues that this claim fails in tandem with Plaintiff's ICFA claim because they rely upon the same allegations. To state a claim for unjust enrichment, the Plaintiff must allege that the Defendant unjustly retained a benefit to the Plaintiff's detriment, and that the Defendant violated "fundamental principles of justice, equity, and good conscience" by keeping that benefit. Here, the Plaintiff's unjust enrichment claim depends upon the same conduct that forms the basis of his ICFA claim: the allegedly excessive and improper fees that Defendant charged for providing ICPA documents. Thus, this Court dismisses Count III because it dismissed the Plaintiff's related ICFA claim. Counts IV-VII assert claims for, respectively: fraud, fraudulent misrepresentation, fraudulent concealment and omission, and conspiracy. Each count depends upon a predicate violation of either the ICPA or the ICFA. Because the Plaintiff fails to allege those predicate violations, this Court dismisses Counts IV-VII without prejudice. A full-text copy of the District Court's May 14, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9ko2ct3 from Leagle.com. Robert Ahrendt, individually and on behalf of all other persons similarly situated,, Plaintiff, represented by James X. Bormes, Law Office of James X. Bormes, Catherine P. Sons, Law Office of James X. Bormes, P.C., Donald J. Pechous, The Khowaja Law Firm LLC, Elizabeth M. Al-Dajani, Kerkonian Dajani LLC & Kasif Khowaja, The Khowaja Law, LLC. Condocerts.com, Inc., A Mutual of Omaha Bank Company,, Defendant, represented by Eric L. Samore -- esamore@salawus.com -- SmithAmundsen LLC & Ronald David Balfour -- rbalfour@salawus.com -- Smithamundsen Llc. CORECIVIC INC: Court Narrows Claims in "Owino" Suit --------------------------------------------------- The United States District Court for the Southern District of California granted in part and denied in part Defendant's Motion to Dismiss the case captioned SYLVESTER OWINO and JONATHAN GOMEZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. CORECIVIC, INC., a Maryland corporation, Defendant, Case No. 17-CV-1112 JLS (NLS) (S.D. Cal.). The Plaintiffs allege that while at Otay Mesa, they and other detainees performed a variety of tasks for the Defendant ranging from scrubbing bathrooms, showers, toilets, and windows to providing barber services to detainees to performing clerical work for CoreCivic. In return for those services, detainees were paid $1.00 per day, which the Plaintiffs refer to as Dollar-A-Day Work. The Detainees could only spend their earnings at the Defendant's company store or commissary. The Plaintiffs bring twelve claims, which can be divided as follows: First, the Plaintiffs allege violations of the federal Trafficking Victims Protection Act (TVPA) and the California Trafficking Victims Protection Act. Next, the Plaintiffs allege violations of numerous sections of the California Labor Code. Finally, the Plaintiffs bring a negligence claim, a claim for violation of California's Unfair Competition Law (UCL) and an unjust enrichment claim. Forced Labor Claims Federal TVPA (First Cause of Action) The Court grants in part and denies in part Defendant's Motion to Dismiss Plaintiffs' first cause of action. The Court dismisses with prejudice the Plaintiffs' claims to the extent those claims rely on Section 1595(a)'s financial benefit element and arose prior to December 23, 2008. The Court finds that 18 U.S.C. Section 1589's express terms do not limit who constitutes a victim of forced labor. Section 1589 applies to any person there is no limitation on the type or status of said person. Similarly, the target of the statute is broad: "section 1589 criminalizes whoever knowingly provides or obtains the labor or services. Nor does the statute contain any language limiting application to those who traffic in persons or transport persons across national borders." The Court notes that had Congress intended to limit Section 1589 to trafficking or transnational crime it could have done so; indeed, other sections of the TVPA contain the limiting language the Defendant urges the Court read into Section 1589. For example, section 1591 prohibits sex trafficking of children or by force, fraud, or coercion" and has an explicit interstate or foreign commerce requirement. 18 U.S.C. Section 1591. Section 1584 criminalizes whoever knowingly and willfully holds to involuntary servitude, any other person for any term, or brings within the United States any person so held. The lack of similar language in section 1589 reinforces the conclusion that there is no limitation on who constitutes a person for purposes of section 1589. Civic Duty Exception The Defendant argues that it would not be logical to allow pre- trial inmates to perform housekeeping tasks while criminalizing the Defendant's same conduct under Section 1589. 28 C.F.R. Section 545.23(b) exempts pre-trial inmates committed to the Federal Bureau of Prisons from forced labor other than housekeeping tasks in the inmate's own cell. The Court agrees with the Defendant that criminalizing housekeeping tasks in one instance, civil immigration detention and permitting it in another, pre-trial detention, would not be a logical reading of Section 1589. Immigration and Customs Enforcement (ICE)'s operations manual, like the Code of Federal Regulations, also requires Plaintiffs to perform personal housekeeping. However, the Plaintiffs' Complaint contains factual allegations, which the Court must accept as true, that go beyond the personal housekeeping tasks listed in the ICE manual. Whether Plaintiffs Allege Sufficient Facts to State a Claim The Court finds that the Plaintiffs did not allege the means with any factual particularity. Taking the factual allegations as true, the Complaint reveals that the Defendant had a policy of forcing detainees to perform labor or services and if the detainees refused then they or other detainees would be placed in solitary confinement. The remaining question is whether allegations of solitary confinement within a detention facility are sufficient to state a claim under TVPA. The Plaintiffs argue that solitary confinement has long been recognized as an additional punishment above and beyond day-to-day incarceration. At the very least, solitary confinement constitutes serious harm, which Congress defined to include psychological harm. Here, solitary confinement, or the threat of solitary confinement, sufficiently alleges the means to achieve forced labor. In sum, the Court finds that the Plaintiffs have sufficiently stated a claim for a TVPA violation. Whether the 2008 TVPA Amendments Apply Retroactively The Defendant argues that the Plaintiffs do not have a private cause of action prior to Congress's 2008 TVPA amendments. Congress amended the TVPA to extend the civil remedy provision, to allow victims to recover against whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of the TVPA. The Defendant contends that Congress did not give the amendment retroactive effect and, therefore, any liability under the financial benefit prong of Section 1595 can only attach to conduct after December 23, 2008, the effective date of the amendment. The Defendant concludes that the Plaintiffs only bring a TVPA claim under the financial benefit prong and therefore the Plaintiffs claims before December 23, 2008 must fail. Whether TVPA's Statute of Limitations Bar Plaintiffs' Claims The Defendant argues that a ten-year statute of limitations governs TVPA claims and the Plaintiffs filed their Complaint May 31, 2017. Thus, the Plaintiffs cannot bring any TVPA claims for conduct occurring before May 31, 2007. The Plaintiffs respond that dismissal on the basis of statute of limitations is only proper if the Defendant shows some obvious bar to securing relief on the face of the Complaint. The Defendant points out that the Plaintiffs do not state a factual basis for equitable tolling. The Complaint suggests otherwise. The Plaintiffs were held in a civil immigration detention facility and it is plausible that equitable tolling could apply because the Plaintiffs were physically detained at the Defendant's facility. At the very least, there is a factual dispute concerning the Defendant's affirmative defense. Therefore, the Court declines to impose a statute of limitations bar at this stage in the proceedings. California TVPA (Second Cause of Action) The Court grants in part and denies in part the Defendant's Motion as to the Plaintiffs' second cause of action and dismisses with prejudice the Plaintiffs' California TVPA claim to the extent that it arose prior to January 1, 2006. The Defendant argues that, like the federal TVPA, the California legislature did not intend for the California human trafficking statute to prohibit the Defendant from requiring lawfully-held immigration detainees to perform housekeeping tasks. The Court finds that the Plaintiffs state a claim under the California TVPA. The Plaintiffs allege that the Defendant threatened to place non-compliant detainees in solitary confinement if they refused to perform certain labor. Solitary confinement, even for those in confinement and whose liberty is already deprived, constitutes deprivation of personal liberty. The Plaintiffs also allege that the solitary confinement was a punishment for refusing to perform work, which demonstrates the Defendant's intent to obtain labor or services from the Plaintiffs. Thus, the Court finds that the Plaintiffs state a claim under the California TVPA. Though neither party raises the issue, retroactivity is also relevant here. California Civil Code Section 3 states that Civil Code provisions are not retroactive unless expressly so declared. Both sections 52.5 and 236.1 were enacted January 1, 2006 and neither statute expressly declared to have retroactive effect. Therefore, the Plaintiffs' claim cannot state a claim for events that occurred prior to January 1, 2006. Voluntary Labor Claims (Fourth through Tenth Causes of Action) In these causes of action, the Plaintiffs allege the following violations of the California Labor Code: failure to pay minimum wages; failure to pay overtime wages; failure to provide mandated meal periods; failure to provide mandated rest periods; failure to furnish timely and accurate wage statements; failure to pay compensation upon termination/waiting time penalties; imposition of unlawful terms and conditions of employment. Pre-emption The Defendant raises a threshold objection to the Plaintiffs' fourth through tenth causes of action: pre-emption. The Defendant argues both field and conflict preemption bar application of California's labor laws to the Plaintiffs' claims. Field Pre-emption Here, the Defendant argues that the INA preempts any state regulation in the field of immigration detention. Carrying the Defendant's theory to its logical conclusion, if this Court were to find that Congress pre-empted California law in the entire field of civil immigration detention then California could not enforce state and local ordinances, including building codes, sanitation requirements, and other licensing strictures. In fact, ICE's operations manually explicitly requires contract detention facilities to follow applicable federal, state, and local law with regard to safety and sanitation law, fire safety codes, garbage and hazardous waste disposal, drinking and wastewater compliance, and food service. The Court finds that the INA does not regulate the entire field of detention conditions within an immigration detention facility. The Court next considers whether the IRCA provides the congressional intent to pre-empt the field of employment and labor practices in immigration detention facilities. In 1986 Congress enacted IRCA and made it unlawful for a person or other entity to hire, or recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien. As the Supreme Court has stated, IRCA forcefully' made combating the employment of illegal aliens central to the policy of immigration law. Yet, the Defendant does not cite any cases for the proposition that IRCA pre-empts the entire field of immigration employment such that a state cannot applying its worker protection and employment regulations to unauthorized aliens. The Court finds that Congress has not pre-empted state law in the field of immigration detainee labor and employment. Whether IRCA Prohibits Defendant from Employing Plaintiffs The Court agrees with the Defendant's general principal that IRCA prohibits employers from employing unauthorized aliens and if any detainees were unauthorized aliens then the Defendant would be prohibited from employing unauthorized aliens. Civil immigration detention facilities house persons as their immigration status is adjudicated. Logic would suggest at least some of the Plaintiffs' putative class would fall under IRCA creating a legal Gordian knot for the Defendant. Two considerations allow the Court to cut the proverbial knot. First, the Court has no information or allegation concerning the Plaintiffs' immigration status. The Motion before the Court is not class certification, but rather whether these particular the Plaintiffs state a claim. Thus, the Defendant's argument, while potentially relevant in future motions, is not dispositive here. Second, as the Plaintiffs point out, California law provides a remedy for unauthorized aliens. The relevant inquiry is not whether the Defendant violated IRCA, but whether the Plaintiffs can recover under California law for past wrongs. Thus, the Court finds IRCA does not control the issue of whether the Plaintiffs are employees under California law. Whether Immigration Detainees Are Analogous to Prisoners Here, California Penal Code Section 2700 mandates that every able-bodied prisoner imprisoned in any state prison are required to carry out as many hours of faithful labor in each day as prescribed by the Director of Corrections. Like the Hale v. Arizona, 993 F.2d 1387, court's reasoning, California inmates cannot freely sell their labor and are exempted from the Thirteenth Amendment's prohibition on involuntary servitude. The Defendant has not directed the Court to any similar statute for civil immigration detainees other than ICE's regulations. Yet, the ICE regulation clearly states, the "Detainees shall be able to volunteer for work assignments but otherwise shall not be required to work, except to do personal housekeeping." The ICE regulations are voluntary, not mandatory, excepting certain housekeeping tasks. The Plaintiffs are not convicted criminals and are accorded the protections of the Thirteenth Amendment. Derivative Claims (Third, Eleventh, and Twelfth Causes of Action) The Defendant argues that the Plaintiffs remaining causes of action must fail to the extent the Plaintiffs' substantive claims are dismissed. The Defendant argues the Plaintiffs' unjust enrichment merits special attention and fails regardless of whether the Plaintiffs' substantive claims succeed or fail. Unjust Enrichment (Twelfth Cause of Action) To allege unjust enrichment as an independent cause of action, a plaintiff must show that the defendant received and unjustly retained a benefit at the plaintiff's expense. Here, the Plaintiffs allegations sufficiently state a claim for unjust enrichment or quasi-contract. The Defendant received the value of the Plaintiffs' labor and allegedly did not adequately compensate the Plaintiffs. The Court denies in part the Defendant's Motion as to the Plaintiffs' twelfth cause of action; however, the Court qualifies its holding as follows. Federal Rule of Civil Procedure 8(d)(2) allows the Plaintiffs to plead alternative causes of action, but the Court understands that the Plaintiffs cannot recover twice for the same injury. A full-text copy of the District Court's May 14, 2018 Memorandum Opinion is available at https://tinyurl.com/ycmgm6h4 from Leagle.com. Sylvester Owino, on behalf of themselves, and all others similarly situated & Jonathan Gomez, on behalf of themselves, and all others similarly situated, Plaintiffs, represented by Robert L. Teel, Law Office of Robert L. Teel, Eileen Regina Ridley -- eridley@foley.com -- Foley and Lardner LLP, J. Mark Waxman -- mwaxman@foley.com -- Foley & Lardner LLP & Nicholas J. Fox -- nfox@foley.com -- Foley & Lardner, LLP. CoreCivic, Inc., a Maryland corporation, Defendant, represented by Ashlee Beth Fletcher -- ahesman@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice, Daniel P. Struck -- dstruck@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice, Nicholas D. Acedo -- nacedo@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice & Rachel Love - - rlove@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice. DAIMLER AG: Faces Class Action Over Faulty Truck Parts ------------------------------------------------------ Yonhap reports that a group of South Korean customers have filed a class action lawsuit against Daimler AG and Daimler Trucks Korea due to faulty parts in trucks they bought from the German carmaker, industry sources said on June 26. Forty-eight owners of Daimler trucks have recently made a claim with a Seoul court for physical and financial damages due to parts problems, such as a malfunctioning braking system, airbags and steering wheel, which resulted in accidents in some cases, a person familiar with the matter told Yonhap News Agency. A spokesman at the Seoul Central District Court was not immediately available for confirmation. Daimler Trucks Korea said it is making efforts to resolve the problems through after-sales services and extension of its warranty period. It will fully cooperate if the authorities launch an investigation into the reported problems with its vehicles, the company said. [GN] DAIMLER AG: Wants Class Action Over Defective HVAC Systems Tossed ----------------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that Mercedes-Benz USA LLC's parent company, Daimler AG, urged a Georgia federal judge on June 22 to cut it from a putative class action alleging Mercedes-Benz and Daimler knowingly sold vehicles with defective HVAC systems, arguing the suit fails to differentiate between Daimler and its U.S. subsidiary. In a motion to dismiss, the automaker and its parent company argued that the plaintiffs' "shotgun-style pleading" doesn't separate the allegations between Daimler and Mercedes-Benz. [GN] DETORONICS CORP: "Stone" Sues Over Unpaid Overtime, Missed Breaks ----------------------------------------------------------------- Joseph L. Stone, on behalf of himself and all others similarly situated, Plaintiffs, v. Detoronics Corporation and Does 1 through 100, Defendants, Case No. BC705953 (Cal. Super., May 10, 2018), seeks unpaid overtime and minimum wages, redress for failure to authorize or permit required meal periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, failure to maintain time-keeping records, reimbursement of business-related expenses, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code and applicable Industrial Wage Orders. Detoronics Corporation provides glass to metal hermetically- sealed products where Stone worked as a non-exempt employee with maintenance in their Los Angeles County, California facility. [BN] The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Tel: (310) 553-3600 Fax: (310) 553-3603 DIAMOND RESORTS: Discovery in "Dropp" Suit Stayed ------------------------------------------------- Magistrate Judge George Foley, Jr. of the U.S. District Court for the District of Nevada stayed all discovery in the case, JOSEPH M. DROPP, MARY E. DROPP, ROBERT LEVINE, SUSAN LEVINE, and KAARINA PAKKA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. DIAMOND RESORTS INTERNATIONAL, INC.; DIAMOND RESORTS HOLDINGS, LLC; DIAMOND RESORTS CORPORATION; DIAMOND RESORTS INTERNATIONAL CLUB, INC., a/k/a THE CLUB OPERATING COMPANY; DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC; DIAMOND RESORTS U.S. COLLECTION MEMBERS ASSOCIATION; APOLLO MANAGEMENT VIII, L.P., APOLLO GLOBAL MANAGEMENT, LLC, MICHAEL FLASKEY; and KENNETH SIEGEL, Defendants, Case No. 2:18-cv-00247- RFB-GWF (D. Nev.), pending a ruling on the Defendants' motions. The Diamond Defendants and Individual Directors filed a Motion to Sever Plaintiff Kaarina Pakka's Claims and Transfer Venue. They filed a Motion to Dismiss and Compel Arbitration and to Strike Class Action Allegations as to Plaintiffs Dropps and Levines. The Apollo Defendants filed a Motion to Dismiss and Compel Arbitration and to Strike Class Action Allegations as to Plaintiffs Dropps and Levines. It also filed a Motion to Sever Kaarina Pakka's Claims and Transfer them to the United States District Court for the District of Hawaii. It further filed a Motion to Compel Arbitration of the Dropps' and the Levines' Claims, Dismiss their Claims in this Action, and Strike their Class Claims and Require that Arbitration Proceed on an Individual, Not Consolidated, Basis. The parties have stipulated and Magistrate Judge Foley approved that all discovery in the case is stayed pending a ruling from the Court on the Defendants' motions. The stay of discovery will remain in effect until 30 days after the Court issues an order granting or denying the Defendants' motions or upon stipulation of the parties to lift the stay. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/0bPTHt from Leagle.com. Joseph M. Dropp, Mary E. Dropp, Robert Levine, Susan Levine & Kaarina Pakka, Plaintiffs, represented by D. Chris Albright, Albright Stoddard Warnick & Albright, Lawrence P. Kolker -- kolker@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, pro hac vice, Lydia Keaney Reynolds -- Reynolds@whafh.com -- pro hac vice & Mark Albright -- gma@albrightstoddard.com -- Albright Stoddard Warnick & Albright. Diamond Resorts International, Inc., Diamond Resorts Holding, LLC, Diamond Resorts Corporation, Diamond Resorts International Club, Inc., also known as Club Operating Company, Diamond Resorts U.S. Collection Development, LLC & Diamond Resorts U.S. Collection Members Association, Defendants, represented by Aleem Dhalla -- adhalla@swlaw.com -- Snell & Wilmer & John S. Delikanakis -- jdelikanakis@swlaw.com -- Snell & Wilmer LLP. Apollo Management VIII, L.P. & Apollo Global Management, LLC, Defendants, represented by Andrew J. Ehrlich -- aehrlich@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, pro hac vice, Kamil Ammari -- kammari@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, pro hac vice, Lewis R. Clayton -- lclayton@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, pro hac vice, Robert N. Kravitz -- rkravitz@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, pro hac vice & Rosa Solis-Rainey -- rsr@morrislawgroup.com -- Morris Law Group. Michael Flaskey & Kenneth Siegel, Defendants, represented by John S. Delikanakis, Snell & Wilmer LLP. DEREK LAM 115: "Guzman" Files Request for Judicial Intervention --------------------------------------------------------------- A request for judicial intervention was filed on May 10, 2018, in the case docketed as Kevin Guzman, individually and on behalf of all others similarly situated, Plaintiff, v. Derek Lam 115 LLC, Defendant, Case No. 701454/2018, (N.Y. Sup., January 30, 2018),. Guzman seeks to recover maximum liquidated damages and interest for being paid overtime wages and non-overtime wages later than weekly, costs and attorneys' fees pursuant to the New York Labor Law. Defendant was engaged in the clothing and apparel business where Plaintiff was employed by as a manual worker, packing, unpacking, moving, lifting and handling merchandise and packages throughout his workday. [BN] Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Tel: (718) 740-1000 Fax: (718) 355-9668 Email: abdul@abdulhassan.com EPIC SYSTEMS: McOmber & McOmber Attorney Discusses SCOTUS Ruling ---------------------------------------------------------------- Christian V. McOmber, Esq., of McOmber & McOmber, P.C., in an article for Lawyers.com, reports that the U.S. Supreme Court recently issued a significant decision involving the right of employees to file class action lawsuits against their employers. By blocking class action lawsuits by employees who signed arbitration agreements, the Court ruled in favor of employers and against the employees disputing the underpayment of their overtime wages. Epic Systems Cor v. Lewis In the matter of Epic Systems Cor. v. Lewis, employees filed suit to join a federal class action lawsuit based on allegations of their employer violating the Fair Labor Standards Act by underpayment of overtime wages. All the involved employees had previously signed arbitration contracts prohibiting collective legal proceedings. In a 5-to-4 decision in favor of the employers, the Court held that federal arbitration law took precedence over a federal labor law protecting workers' rights to collectively bargain. The signed arbitration contracts were legal and enforceable, thereby preventing the employees from joining a class action lawsuit. By finding signed arbitration agreements must be enforced as written, the Court favored the language of the Federal Arbitration Act over the National Labor Relations Act. The Federal Arbitration Act is meant to promote arbitration as an alternative to filing suit; the National Labor Relations Act is designed to protect workers. The Court held that employees failed to prove the arbitration agreements, which required employees to file individualized arbitration proceedings rather than class action lawsuits, violated federal law. While the conservative majority focused on the interpretation of the language of the arbitration law, the liberal minority stressed that the ability of workers to confront employers collectively has been a priority since the 1930s and the New Deal. Highlighting the difficulty some workers face in filing lawsuits on their own to dispute unfair or unjust wages, the Court's Minority decision emphasized that federal labor laws allowing workers to band together offers an important and necessary protection for workers. Strength in Numbers Supporters of employees' rights to collectively bargain believe employees have strength in numbers and often need combined financial resources to fight employers in a wage dispute. The employees in the Epic Systems case were disputing overtime pay claims too small to be worth pursuing individually due to the high costs of litigation. Justice Ginsburg's Opinion Justice Ruth Bader Ginsburg wrote a dissenting opinion finding the decision wrong for failing to give employees and employers equal footing with respect to wage bargaining. Her opinion stressed that the National Labor Relations Act was passed to address workplace power imbalance between vulnerable workers and employers, which should not be ignored. She further cautioned this decision would result in a lack of enforcement of state and federal labor laws and the return to take it or leave it and yellow dog employment contracts, which attempt to block employees from joining unions and suppress a worker's right to seek legal remedies for employment grievances or wage disputes. Justice Ginsburg characterized the Majority's decision as a destructive result that ignored the last 80 years of federal labor laws. [GN] EXPRESS SCRIPTS: Investors Want to Block Merger Vote ---------------------------------------------------- Dani Kass, writing for Law360, reports that Express Scripts Holding Co. investors hit the company with a proposed class action in Missouri federal court on June 22 aiming to block the pharmacy benefit manager from holding a vote on its proposed merger with Cigna Corp., alleging the company has withheld key financial information from its U.S. Securities and Exchange Commission filings. Express Scripts' registration statement leaves out material information, including the financial projections for both companies, conflicts of interest for one of the PBM's financial advisers and details of the sale process. The case is captioned Neufeld v. Express Scripts Holding Company et al, Case No. 4:18-cv-01017, (E.D. Mo.). The case was filed June 22, 2018. [GN] EVERETT ASSOCIATION: Thomas Appeals W.D. Wash. Ruling to 9th Cir. ----------------------------------------------------------------- Plaintiff Deanna C. Thomas filed an appeal from a court ruling in the lawsuit entitled Deanna Thomas v. Everett Association of Credit, et al., Case No. 2:17-cv-00599-RSM, in the U.S. District Court for the Western District of Washington, Seattle. The nature of suit is stated as consumer credit. The appellate case is captioned as Deanna Thomas v. Everett Association of Credit, et al., Case No. 18-35499, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Deanna C. Thomas' opening brief is due on August 6, 2018; -- Appellees John/Jane Does, Everett Association of Credit Men Inc, Royce A. Ferguson, Monica Jones, Branna Wickberg and Kristie Youso's answering brief is due on September 5, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant DEANNA C. THOMAS, individually and on behalf of all others similarly situated, is represented by: Richard L. Pope, Jr., Esq. LAW OFFICE OF RICHARD POPE 15600 NE 8th Street, Suite B1-358 Bellevue, WA 98008 Telephone: (425) 829-5305 Facsimile: (425) 526-5714 E-mail: rp98007@gmail.com Defendants-Appellee EVERETT ASSOCIATION OF CREDIT MEN INC. and MONICA JONES are represented by: Jeffrey I. Hasson, Esq. HASSON LAW LLC 9385 SW Locust Street Tigard, OR 97223 Telephone: (503) 255-5352 Facsimile: (503) 255-6124 E-mail: hasson@hassonlawllc.com FIELD ASSET: Court Strikes Decertification Bid in "Bowerman" Suit ----------------------------------------------------------------- In the case, FRED BOWERMAN, et al., Plaintiffs, v. FIELD ASSET SERVICES, INC., et al., Defendants, Case No. 3:13-cv-00057-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California granted the Plaintiffs' motion to strike the Defendants' motion for decertification. The Plaintiffs move to strike the Defendants' motion for decertification on the grounds that the decertification motion constitutes a motion for reconsideration, for which they are required to seek leave prior to filing. The Defendants respond that an order that grants or denies class certification may be altered or amended before final judgment and a district court may decertify a class at any time. They also assert that, at least in the first instance, a motion to decertify a class is not governed by the standard applied to motions for reconsideration. The problem with Defendants' argument, Judge Orrick finds, is that they have already moved to decertify once, and he has already ruled on it. Under these circumstances, it seems appropriate that any subsequent motion to decertify should be fashioned as a motion for reconsideration. Only one of the Defendants' cases, Slaven v. BP Am., Inc., dealt with a second motion to decertify. The court indicated that the usual reluctance to entertain motions for reconsideration simply does not apply in the class certification context, but it also highlighted a change in governing law in the six years since the court conditionally certified the class (and five years since denying the decertification motion that justified the the instant motion to reconsider. It further noted that a District Court must supervise a class to ensure that its continued maintenance satisfies the standards set forth in Rules 23(a) and (b)(3), and found that the defendants' motion thus serves an important role in the ongoing life of the class action. The circumstances here differ from Slaven, and support the conclusion that FAS' motion to decertify should be presented as a motion for reconsideration. Most critically, the Judge already performed the "rigorous analysis" in the Prior Order, which the Slaven court cited as justification for considering the motion on the merits in that case. In addition, he says the Defendants explicitly cite new facts elicited at the mini-trials to purportedly justify their motion to decertify. This material difference in fact is one of the enumerated reasons justifying a motion for reconsideration. He further finds that none of the remaining cases cited by the Defendants address circumstances where the court has already denied a motion for decertification. As a result, Judge Orrick granted the Plaintiffs' motion to strike. However, he will treat the Defendants' motion to decertify as a motion for leave to file a motion for reconsideration and will let the parties know if he require furthers briefing once he has reviewed it. The hearing on the motion is vacated. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/cMWvhH from Leagle.com. Fred Bowerman, on behalf of themselves and all others similarly situated & Julia Bowerman, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Thomas E. Duckworth -- tom@dpolaw.com -- Duckworth Peters LLP, Chiharu Gina Sekino -- csekino@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, James Edward Miller -- jmiller@sfmslaw.com -- James C. Shah, Esq. -- jshah@sfmslaw.com -- Kolin Tang, Esq. -- ktang@sfmslaw.com -- Laurie Rubinow, Esq. -- lrubinow@sfmslaw.com -- Nathan Curtis Zipperian, Esq. -- nzipperian@sfmslaw.com -- and -- Ronald Scott Kravitz, Esq. -- rkravitz@sfmslaw.com -- SHEPHERD, FINKELMAN, MILLER & SHAH, LLP Field Asset Services, Inc. & Field Asset Services LLC, a successor in interest, Defendants, Robert G. Hulteng, Esq. -- rhulteng@littler.com -- Alison Jacquelyn Cubre, Esq. -- acubre@littler.com -- Aurelio Jose Perez, Esq. - aperez@littler.com -- Danton Wai-Ky Liang, Esq. -- dliang@littler.com -- Kevin R. Vozzo, Esq. -- kvozzo@littler.com -- LITTLER MENDELSON & Matthew J. Hank -- E mhank@littler.com -- pro hac vice. FLOWERS FOODS: Can Compel Arbitration in "Abugeith" FLSA Suit ------------------------------------------------------------- In the case, MAJDI ABUGEITH and JIMMY BREWER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF HOUSTON, LLC, Defendants, Civil Action No. H-17-2934 (S.D. Tex.), Judge Sim Lake of the U.S. District Court for the Southern District of Texas, Houston Division, granted the Defendants' Motion to Dismiss or, in the Alternative, to Compel Individual Arbitration. Flowers Foods ships bakery and snack products to warehouses. Flowers Baking Co. of Houston is a subsidiary of Flowers Foods that operates one of Flowers Foods' bakeries and several of its warehouses. The Defendants market their bakery and snack products to retailers such as Wal-Mart, Target, Dollar General, and other grocery stores and merchants. The Plaintiffs and the members of the proposed class distribute the Defendants' products to the latter's retail customers and place, remove, and organize their products on the retailers' shelves. The Plaintiffs allege that because they were misclassified as non-employees, the Plaintiffs and the members of the proposed Federal Collective Group were denied the rights and benefits of employment, including, but not limited to overtime premium wages. The Plaintiffs executed a distributor agreement and signed Flowers Baking Co. of Houston, LLC ("Company") Amendment to Distributor Agreement which contains an arbitration provision. The Plaintiffs filed the action on Sept. 29, 2017, seeking overtime wages under the FLSA, liquidated damages, attorney's fees, and costs on behalf of themselves and a putative class of distributors. The Defendants-filed a motion pursuant to Federal Rules of Civil Procedure 12 (b)(1), 12 (b)(3), and 12 (b)(6) seeking an order dismissing the lawsuit and requiring the Plaintiffs to arbitrate their claims with them. The Defendants argue that because the Plaintiffs signed the Amendment and the Arbitration Agreement -- which require mandatory, individual arbitration of the claims and delegate the power to decide questions of arbitrability to the arbitrator -- the Court should dismiss the Plaintiffs' claims and compel individual arbitration. The Plaintiffs respond that the arbitration agreements are illusory and thus invalid, and that the collective action procedure cannot be waived. Because the termination provision in the Arbitration Agreement requires 30 days written notice and because any modifications or terminations will be prospective only, Judge Lake finds that the Arbitration Agreement is not illusory under Texas law. The Plaintiffs have therefore failed to carry their burden of showing that the Arbitration Agreement is invalid. He concludes that the parties have entered into a binding agreement to arbitrate their dispute and that no federal statute or policy renders the claim nonarbitrable. The Judge also finds that the Arbitration Agreement also incorporates the American Arbitration Association rules, which give the arbitrator the power to determine arbitrability. The Plaintiffs challenge the Arbitration Agreement as a whole, but do not specifically challenge the delegation clause. He concludes that the Arbitration Agreement and the delegation clause submitting any issues of arbitrability to the arbitrator -- except the enumerated exceptions -- are valid, and the Plaintiffs should be compelled to arbitrate. Finally, because the Arbitration Agreement contains a class- action waiver and because the Arbitration Agreement and the class-action waiver are enforceable, he concludes that the Plaintiffs must submit to individual arbitration. The Judge therefore granted the Defendants' Motion to Dismiss and compelled the Plaintiffs to arbitrate this dispute individually. A full-text copy of the Court's May 15, 2018 Memorandum Opinion and Order is available at https://is.gd/GfEFN7 from Leagle.com. Majdi Abugeith & Jimmy Brewer, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, represented by Alfonso Kennard, Jr. -- alfonso.kennard@kennardlaw.com -- KENNARD RICHARD PC. Flowers Foods, Inc & Flowers Baking Co. of Houston, LLC, Defendants, represented by Michael D. Mitchell -- michael.mitchell@ogletree.com -- Ogletree Deakins et al & Stephen Eric Hart -- stephen.hart@ogletree.com -- Ogletree Deakins et al. FRANKLIN GARCIA-VICTOR: Denial of No Cause of Action Bid Upheld --------------------------------------------------------------- In the case, REGINALD GREEN, ET AL., v. FRANKLIN ELIEZER GARCIA- VICTOR, ET AL, Case No. 2017-C-0695 (Ky. App.), Judge Terri F. Love of the Court of Appeal of Louisiana for the Fourth Circuit affirmed the trial court's judgment denying denying the Ubers' Exception of No Cause of Action. A group of cab drivers ("Cabbies") filed a Petition Based Upon Unfair Trade Practices, Request for Class Certification and Request for Injunctive Relief against a group of Uber drivers ("Ubers") alleging that they were operating in violation of the Louisiana Unfair Trade Practices Act ("LUTPA"). The Cabbies contended that the Ubers' violations of the Louisiana Motor Vehicle Safety Law, the Louisiana Driver's License Law, and other municipal ordinances constituted unfair trade practices. The Ubers filed Exceptions of No Cause of Action and No Right of Action. The trial court granted the Exception of No Cause of Action as to the Cabbies' LUTPA claims, but denied the Exception of No Right of Action regarding the alleged violations of the Louisiana Driver's License Law. The Court and the Louisiana Supreme Court denied writs on that judgment. The Cabbies filed a First Supplemental and Amended Petition asserting additional violations of municipal ordinances to establish liability pursuant to LUTPA. They then filed a Second Amending, Supplemental and Restated Petition alleging that the Ubers performed the same work as the Cabbies, who have commercial driver's licenses, but were not subject to the same regulatory requirements, which resulted in disparate treatment by the City of New Orleans. The Cabbies contended that the Ubers: (1) accepted passengers for cash without the Uber app; (2) staged and used cab stands; (3) accepted fares to and from the airport without authorization; (4) failed to notify Uber (Transportation Network Co. "TNC") and its insurer of accidents; (5) transported passengers without a chauffeur's license; and (6) prohibited cabs from picking up and dropping off customers at the Voodoo Experience Music Festival. The Cabbies further asserted that the Ubers were engaging in illegally providing transportation services for hire, and that their non-compliance with state regulatory rules resulted in unfair competition pursuant to LUTPA. Moreover, the Cabbies averred that they suffered an ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by Defendants of an unfair and unlawful trade practice in violation of Louisiana Revised Statute Section 51:1405. They asserted that they suffered harm, injuries, and damages, including loss of income, relevant market share, business reputation, goodwill, and attorneys' fees and costs. The Cabbies also alleged the class of the Defendants, for purposes of class action: All UberX drivers operating in New Orleans during the time of April 16, 2015 through the present. Subsequently, the Ubers filed an Exception of No Cause of Action regarding the Second Amending, Supplemental and Restated Petition. The trial court denied the exception and stated the petition, as written, sufficiently stated a cause of action. The Ubers sought supervisory review from the Court. The Court denied writs. The Louisiana Supreme Court granted writs and remanded the matter for briefing, argument, and full opinion. The Court heard the matter en banc on April 18, 2018. The Ubers contend that the trial court erred because the Cabbies failed to allege facts establishing that any individual Plaintiff suffered any damages as a result of any specific act by any individual Defendant and because alleged actions by the Defendants do not violate any law. They also maintain that each individual defective cause of action is based on a separate transaction or occurrence and should be dismissed. Judge Love finds that the Cabbies' petition states a cause of action. Firstly, the Cabbies are persons pursuant to La. R.S. 51:1409(A). Secondly, the Cabbies alleged an ascertainable loss (loss of income, relevant market share, business reputation, goodwill, and attorneys' fees and costs), specific amounts to be determined during discovery/trial. Thirdly, the Cabbies contend that the Ubers' alleged practice of working outside the regulations applicable to TNCs results in unfair trade practices, i.e. the Ubers now are performing work reserved to the Cabbies. She says if Ubers are illegally functioning as Cabbies, they could be subject to the same set of regulations applicable to the Cabbies. Unfair trade practices offend established public policy when the practice is unethical, oppressive, unscrupulous, or substantially injurious. Accepting all of the Cabbies' well-pleaded factual allegations as true as a whole and resolving all doubt in their favor, she finds that under the facts and circumstances of the case, the Cabbies have stated a cause of action pursuant to LUTPA. The trial court did not err by denying the Ubers' Exception of No Cause of Action. For these reasons, Judge Love finds that the Cabbies have stated a cause of action and upheld the judgment of the trial court. She denied the application for supervisory review. Writ denied. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2JSoLNC from Leagle.com. James M. Garner -- jgarner@shergarner.com -- Timothy B. Francis - - tfrancis@shergarner.com -- Matthew M. Coman -- mcoman@shergarner.com -- Michael R. Dodson -- mdodson@shergarner.com -- SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, Louisiana 70112, Counsel for Defendants/Relators. Ira J. Middleberg -- imiddleberg@midrid.com -- Yvette A. D'Aunoy -- ydaunoy@midrid.com -- Marianne Garvey -- mgarvey@midrid.com -- MIDDLEBERG RIDDLE GROUP, 909 Poydras Street, Suite 1400, New Orleans, Louisiana 70112, Counsel for Plaintiffs/Respondents. GOLDEN STATE: $150K Settlement in "Padron" Suit Gets Final OK ------------------------------------------------------------- In the case, ISRAEL PADRON, as an individual and on behalf of all others similarly situated, Plaintiff, v. GOLDEN STATE PHONE & WIRELESS, a California Corporation; and Does 2 through 10, Defendant, Case No. 16-cv-04076-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiff's Motion for Final Approval of Class Action Settlement and the Plaintiff's Motion for Attorneys' Fees, Costs, and Incentive Award. Padron filed the action against Defendant Golden State Phone & Wireless ("GSP") on July 20, 2016, asserting violations of the California Labor Code, California Business and Professions Code, and Fair Labor Standards Act ("FLSA"). He subsequently filed the operative first amended complaint ("FAC"), adding a claim under the California Private Attorneys General Act. According to the FAC, the Defendant is a business that offers cellular service, retail sales, and business phone systems. The Plaintiff alleges that he worked as an hourly non-exempt employee of the Defendant's store in San Luis Obispo, California. In addition to the hourly base rate, the Plaintiff and other similarly situated employees received sales commissions and other discretionary incentive pay. He further alleges that the Defendant failed to include all commissions when calculating its employees' regular rate of pay, thereby underpaying the required overtime wages. In addition, as a result of this underpayment, the Defendant allegedly (1) failed to timely pay all final wages due at the time of employment termination, (2) maintained inaccurate payroll records, and (3) issued inaccurate wage statements. On this basis, the FAC asserts claims for: (1) failure to pay overtime wages; (2) violation of the FLSA; (3) wage statement penalties; (4) waiting time penalties; (5) violation of California's Unfair Competition Law; and (6) violation of the Private Attorneys General Act. Prior to the Case Management Conference, the parties notified the Court that they had reached a class-wide settlement. Thereafter, based on the parties' settlement, the Plaintiff moved for a preliminary approval of class action settlement. The settlement defines two classes: a. California Commission Overtime Subclass: All hourly, non- exempt employees who worked at any of GSP's locations in California between July 20, 2012 and Oct. 20, 2016, and who both worked overtime and earned a nondiscretionary commission in the same pay period at least once between July 20, 2012 and Oct. 20, 2016. b. FLSA Commission Overtime Subclass: All hourly, non-exempt employees who worked at any of GSP's locations throughout the United States between July 20, 2013 and Oct. 20, 2016, and who both worked overtime and earned a nondiscretionary commission in the same pay period at least once between July 20, 2013 and Oct. 20, 2016. The Settlement Agreement provides that the Defendant will pay a non-reversionary Gross Settlement Amount ("GSA") of $150,000. It further sets forth the following deductions from the GSA: Court- approved attorneys' fees of $37,500 (25% of the GSA); verified costs of up to $10,000; Court-approved incentive award of $5,000; PAGA award allocation to the California Labor and Workforce Development Agency ("LWDA") of $1,875; and settlement administration costs of $9,500. After deductions of the proposed Court-approved Plaintiff's incentive payment, Court-approved settlement administration costs, Court-approved attorneys' fees and verified costs, and PAGA payment to LWDA, the class members would receive their settlement shares from a Net Settlement Fund of approximately $86,125. On Sept. 28, 2017, the Court issued an order which: granted preliminary approval of the class action settlement; preliminarily certified the California Commission Overtime Subclass and the FLSA Commission Overtime Subclass; appointed Plaintiff Padron as the Class Representative; appointed Hernaldo J. Baltodano, Erica Flores Baltodano, and Matthew K. Moen of Baltodano & Baltodano LLP as Class Counsel; appointed CPT Group, Inc. as the third-party Claims Administrator; approved forms and content of the Class Notice, Exclusion Form, FLSA Consent Form, and Individual Form ; set a 60 days deadline from the mailing date of the Notice Packet for objections; and set a hearing date of April 19, 2018 for the Plaintiff's motion for final approval of the class action settlement and for the Plaintiff's motion for attorneys' fees, costs, and incentive award. No objections were filed. On April 19, 2018, the Court heard Plaintiff's motion for final approval of class action settlement and motion for attorneys' fees, costs, and incentive award. Judge Freeman granted the Plaintiff's Motion for Final Approval of Class Action Settlement and the Plaintiff's motion for attorneys' fees, costs, and incentive award. The Clerk will close the file pursuant to this order and the Final Judgment issued simultaneously. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2latL2k from Leagle.com. Israel Padron, Plaintiff, represented by Erica Flores Baltodano, Baltodano and Baltadano LLP, Matthew Kevin Moen -- mkm@bbemploymentlaw.com -- Haines Law Group, APC & Paul Haines -- phaines@haineslawgroup.com -- Haines Law Group, APC. Golden State Phone & Wireless, Defendant, represented by Glenn J. Dickinson -- gdickinson@lightgablerlaw.com -- LightGabler LLP. GUARD MANAGEMENT: "Sellers" Alleges No Time-keeping, Break Time --------------------------------------------------------------- Janiesha Sellers, an individual, on behalf of himself, and all other persons similarly situated, Plaintiff, v. Guard Management, Inc. and Does 1 to 10, Defendants, Case No. 37-2018-00023207 (Cal. Super., May 10, 2018), seeks unpaid overtime wages and interest thereon, redress for failure to authorize or permit required meal periods, statutory penalties for failure to provide accurate wage statements, waiting time penalties in the form of continuation wages for failure to timely pay employees all wages due upon separation of employment, failure to maintain time- keeping records, reimbursement for business-related expenses, injunctive relief and other equitable relief, reasonable attorney's fees, costs and interest under California Labor Code and applicable Industrial Wage Orders. Defendant is in the business of providing security and other services in the Southern California region where Sellers was employed by Guard Management as a security guard assigned to work at job sites located in San Diego, California, including the VA Center in San Diego from approximately January 2018 until the present date. [BN] Plaintiff is represented by: R. Craig Clark, Esq. Paige D. Chretien, Esq. Monique R. Rodriguez, Esq. CLARK LAW GROUP 205 West Date Street San Diego, CA 92101 Telephone: (619) 239-1321 Facsimile: (888) 273-4554 Email: cclark@clarklawyers.com mrodriguez@clarklawyers.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 Tel: (562) 256-1047 Fax: (562) 256-1006 Email: walter@whaines.com HARVARD UNIVERSITY: Low Personality Ratings to Asian-Americans -------------------------------------------------------------- Wesley Yang, writing for The New York Times, reports that there's a moving passage contained in a deposition taken in the major class-action lawsuit accusing Harvard University of racial bias against Asian-Americans . An attorney for Students for Fair Admissions, the nonprofit group representing a dozen Asian- Americans denied admission by Harvard, confronts the assistant principal of Stuyvesant High School with evidence that white students applying to Harvard in 2014 from her school were more than twice as likely to be admitted to the university as were her Asian-American students. The assistant principal, Casey Pedrick, starts to cry. (Witness crying.) Q. I'm sorry this is upsetting to you. Do you want to take a break? A. (Witness shakes her head no.) Q. You want to keep going? Do you want to tell me why this is so upsetting to you? A. Because these numbers make it seem like there's discrimination, and I love these kids, and I know how hard they work. So these just look like numbers to all you guys, but I see their faces. That last sentence is worth lingering on for a moment. When Ms. Pedrick looks in the faces of her Asian students, who comprise more than 70 percent of the population at Stuyvesant, she doesn't see any one of them as "yet another textureless math grind," as M.I.T.'s dean of admissions was brazen enough to call a Korean-American student to Daniel Golden, the author of "The Price of Admission." She doesn't see her students as an arrogant, privileged "ethnic group" who think they "own admission" to these high-performing schools, as the new chancellor of New York City Schools, Richard Carranza, recently put it. Ms. Pedrick knows that her Asian students believe they have to earn their admission to Stuyvesant in the only way anyone has for more than four decades: by passing a rigorous entrance exam. Their parents will often invest a major share of the family income into test preparation courses to help them pass - this despite the fact that more Asians live in poverty than any other group in New York City. At the time that she was deposed, Ms. Pedrick did not know that the Harvard admissions office consistently gave Asian-American applicants low personality ratings -- the lowest assigned collectively to any racial group. She did not know that Harvard's own Office of Institutional Research had found that if the university selected its students on academic criteria alone, the Asian share of the Harvard student body would leap from 19 percent to 43 percent. She did not know that though Asians were consistently the highest academically performing group among Harvard applicants, they earned admission at a rate lower than any other racial group between 2000 and 2019. All she knew was what she had witnessed as an assistant principal and the single fact that she was shown by her deposers. But perhaps she intuited the rest. Earlier in June, The Times learned that a review of more than 160,000 individual student files contained in six years of Harvard's admissions data found that Asians outperformed all other racial groups on every measure of academic achievement: grades, SAT scores and the most AP exams passed. They had more extracurricular activities than their white counterparts. They were rated by interviewers who had met them as virtually on par with their white counterparts in their personal qualities. Yet Harvard admissions officers, many of whom had never met these applicants, scored them collectively as the worst of all groups in the one area -- personality -- that was subjective enough to be readily manipulable to serve Harvard's institutional interests. The report by the plaintiff's expert witness, the Duke University economist Peter Arcidiacono, revealed that Harvard evaluated applicants on the extent to which they possessed the following traits: likability, helpfulness, courage, kindness, positive personality, people like to be around them, the person is widely respected. Asian-Americans, who had the highest scores in both the academic and extracurricular ratings, lagged far behind all other racial groups in the degree to which they received high ratings on the personality score. "Asian-American applicants receive a 2 or better on the personal score more than 20% of the time only in the top academic index decile. By contrast, white applicants receive a 2 or better on the personal score more than 20% of the time in the top six deciles," wrote Mr. Arcidiacono. "Hispanics receive such personal scores more than 20% of the time in the top seven deciles, and African Americans receive such scores more than 20% of the time in the top eight deciles." Even if the very worst stereotypes about Asians were true on average, it beggars belief that one could arrive at divergences as dramatic as the ones Mr. Arcidiacono documents by means of unbiased evaluation. The Asian-American population has more than doubled over the last 20 years, yet the Asian-American share in the student populations at Harvard has remained frozen. Harvard has maintained since the 1980s, when claims of anti-Asian discrimination in Ivy League admissions first surfaced, that there is no racial bias against Asian-Americans once you control the preferences offered to athletes and alumni. The discovery process in this case has demonstrated that this claim is no longer supportable. Mr. Arcidiacono found that an otherwise identical applicant bearing an Asian-American male identity with a 25 percent chance of admission would have a 32 percent chance of admission if he were white, a 77 percent chance of admission if he were Hispanic, and a 95 percent chance of admission if he were black. A report from Harvard's own Office of Institutional Research found that even after alumni and athletic preferences were factored in, Asians would be accepted at a rate of 26 percent, versus the 19 percent at which they were actually accepted. That report, commissioned back in 2013, was summarily filed away, with no further investigation or action taken. No innocuous explanation can account for the extent of these disparities. Yet Harvard is insisting that those who call it what it plainly is -- racial discrimination -- are advancing a "divisive agenda." On June 12, Harvard's president, Drew Gilpin Faust, sent an email to all alumni of the college warning of a forthcoming attempt to use "misleading, selectively presented data taken out of context" in order to "question the integrity of the undergraduate admissions process." The statement promised to "react swiftly and thoughtfully to defend diversity as the source of our strength and our excellence -- and to affirm the integrity of our admissions process." As the Harvard law professor Jeannie Suk Gersen pointed out in The New Yorker, the tortuous and evasive quality of the discussion of the treatment of Asian-Americans in elite colleges stems from the way our legal doctrine on affirmative action has evolved. The Supreme Court ruled that it was legal to use race as a criterion in admissions in order to pursue the educational benefits of "diversity" in the landmark 1978 case Regents of the University of California v. Bakke, but it forbade the imposition of racial quotas and, by extension, the maintenance of a policy that consciously aims at "racial balancing." This imposes a legal condition on Harvard. Rather than make the honest claim that it actively pursues racial balance and that there are good reasons to do so, the school must engage in a charade that nearly everyone working in the proximity of a highly competitive college knows to be false. Harvard has been here before. "To prevent a dangerous increase in the proportion of Jews, I know at present only one way, which is at the same time straightforward and effective," wrote A. Lawrence Lowell, Harvard's president in the 1920s, "and that is a selection by a personal estimate of character on the part of the Admission authorities, based upon the probable value to the candidate, to the College and to the community of his admissions." The opacity of its admissions procedure could veil what Lowell's written correspondence would later disclose to be a fully intended policy of discrimination. The same zealously defended discretion to rank applicants on intangible personality traits would, of course, later come to the aid of blacks, Hispanics and Asians when Harvard pivoted toward an embrace of affirmative action in the 1970s. Affirmative action and the privileges of legacy and wealthy students, most of whom are white, both found shelter in the concept of "diversity" -- a term that refers at once to racial diversity and the mix of people that make Harvard's student body so varied and so disproportionately rich. Alumni preference, so crucial to the sustenance of Harvard's $37 billion endowment, could provide cover before the courts for racial bias. Harvard's commitment to racial diversity could whitewash its devotion to the preservation of privilege before liberal public opinion. There is, in this fragile system, a place for textureless math grinds. But only a few. The conclusion is unavoidable: In order to sustain this system, Harvard admissions systematically denigrated the highest achieving group of students in America. Asian-Americans have been collateral damage in the university's quest to sustain its paradoxical mission to grow its $37 billion endowment and remain the world's most exclusive institution -- all while incessantly preaching egalitarian doctrines. Until very recently, Asian-Americans have been politically quiescent and largely deferential to a status quo that works against them. But now, a portion of the Asian-American community is acting in what it deems to be its own interest. In the face of this challenge, Harvard has resorted to the desperate expedient of promulgating racial stereotypes. In denying that it has engaged in racial balancing at the expense of Asian-Americans, Harvard has put itself in the morally untenable position of affirming a brazen falsehood. Harvard's lawyers will soon tell the highest court in the land that Casey Pedrick's Asian students are less respected because they are less likable, less courageous, and less kind than all other applicants. The university has decided that this is necessary for the greater good. The reality is that it is a carefully considered act of slander. [GN] HEYWOOD CARI: "Veness" FDCA Suit Settlement Has Final Approval -------------------------------------------------------------- In the case, DAVID W. VENESS and JULIE K. VENESS, on behalf of themselves and others similarly situated, Plaintiffs, v. HEYWOOD, CARI & ANDERSON, S.C., Defendant, Case No. 17-cv-338-bbc (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin granted the Plaintiffs' Motion for Final Approval of Class Action Settlement. On May 5, 2017, David W. Veness and Julie K. Veness filed a class action complaint against the Defendant in the U.S. District Court, Western District of Wisconsin, asserting class claims under the Fair Debt Collection Practices Act ("FDCPA"). The Defendant has denied any and all liability alleged in the Lawsuit. On Nov. 8, 2017, after extensive arms-length negotiations, the Parties entered into a Class Action Settlement Agreement which is subject to review under Fed. R. Civ. P. 23. On Nov. 16, 2017, the Parties filed the Settlement Agreement, along with the Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. On Dec. 29, 2017, upon consideration of the Plaintiffs' Preliminary Approval Motion and the record, the Court entered an Order of Preliminary Approval of Class Action Settlement, pursuant to which it, among other things, (i) preliminarily certified a class of the Plaintiffs with respect to the claims asserted in the Lawsuit; (ii) preliminarily approved the proposed settlement; (iii) appointed the Plaintiffs as the Class Representatives; (iv) appointed James L. Davidson of Greenwald Davidson Radbil PLLC and Matthew C. Lein of Lein Law Offices as the Class Counsel; and, (v) set the date and time of the Settlement Approval Hearing. On April 4, 2018, the Plaintiffs filed their Final Approval Motion. On May 16, 2018, a Final Approval Hearing was held. The Parties now request final certification of the settlement class under Fed. R. Civ. P. 23 (b)(3) and final approval of the proposed class action settlement. Judge Peterson granted the Plaintiffs' Motion for Final Approval of Class Action Settlement. Pursuant to Fed. R. Civ. P. 23(b)(3), Judge Peterson certified the Lawsuit, for settlement purposes only, as a class action on behalf of the class of, with respect to the claims asserted in the Lawsuit, all persons in the state of Wisconsin on whom, between May 5, 2016 and May 5, 2017, Heywood, Cari & Anderson, S.C. served a Notice Required by the Fair Debt Collection Practices Act, 15 U.S.C. Section 192 as Amended as part of a lawsuit it filed against such person in connection with the collection of a consumer debt. Pursuant to Fed. R. Civ. P. 23, the Judge certified the Plaintiffs as the Class Representatives and James L. Davidson of Greenwald Davidson Radbil PLLC and Matthew C. Lein of Lein Law Offices as the Class Counsel. The Defendant will establish a $3,000 Settlement Fund. Each Class Member who has not excluded himself or herself from the Class with a postmark date no later than 60 days after the Court's entry of the Order of Preliminary Approval of Class Action Settlement will receive a pro rata share of the Settlement Fund. Each settlement check will be will be void 90 days after mailing. To the extent that any funds remain in the Settlement Fund after the void date (from uncashed checks or otherwise), these funds will be distributed to Marquette University Law School Legal Clinic as the cy pres recipient. The Plaintiffs will receive from the Defendant the sum of $1,000 each. These payments will be separate and apart from the Settlement Fund and his pro-rata share of the same. The Defendant will pay the Class Counsel $22,500 for attorneys' fees, costs and expenses, separate and apart from the Settlement Fund, the Statutory Award to the Plaintiffs and any Settlement Administration Costs. Separate from the Settlement Fund, the Statutory Award to the Plaintiffs and the Attorney's Fees and the Expenses for the Class Counsel, the Defendant is responsible for paying all costs of notice and administration of the settlement, which will be completed by First Class, Inc., Class Action Administration. Judge Peterson dismissed with prejudice the case. Any party may move to reopen the case for good cause. A full-text copy of the Court's May 16, 2018 Final Order and Judgment is available at https://bit.ly/2JOwE3d from Leagle.com. David W. Veness, On behalf of himself and others similarly situated & Julie K. Veness, On behalf of herself and others similarly situated, Plaintiffs, represented by James Davidson -- jdavidson@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC & Matthew Curtiss Lein -- mlein@leinlawoffices.com -- Lein Law Offices. Heywood, Cari & Anderson, S.C., Defendant, represented by Alyssa A. Johnson -- ajohnson@hinshawlaw.com -- Hinshaw & Culbertson LLP & David John Hanus -- dhanus@hinshawlaw.com -- Hinshaw & Culbertson, LLP. HOMEAWAY INC: Can Compel Arbitration in "Arnold," "Swimsuits ------------------------------------------------------------ In the cases, IVAN ARNOLD, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. HOMEAWAY, INCORPORATED, Defendant-Appellant, and DEIRDRE SEIM, Individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. HOMEAWAY, INCORPORATED, A Delaware Corporation, Defendant-Appellee, Case Nos. 17-50088, 17-50102 (5th Cir.), Judge James L. Dennis of the U.S. Court of Appeals for the Fifth Circuit (i) reversed the judgment of the district court in No. 17-50088 denying Homeaway's motion to compel, and remanded with instructions to grant the motion to compel arbitration; and (ii) affirmed the judgment of the district court in No. 17-50102 granting Homeaway's motion to compel, and remanded with instructions to grant the motion to compel arbitration. HomeAway owns and operates several websites that facilitate short-term "vacation" rentals. Its sites connect homeowners and property managers with travelers who book their properties online. Arnold and Seim are both HomeAway subscribers who list properties on HomeAway's websites. Arnold filed a putative class-action complaint alleging, chiefly, that HomeAway's February 2016 imposition of service fees for travelers was contrary to its prior representations and resulted in a variety of state-law violations. HomeAway argues that its April 2016 Terms and Conditions govern Arnold's action. As relevant here, the April 2016 Terms contain the following provisions: HomeAway moved to compel arbitration in reliance on the April 2016 Terms' provisions. It argued that, pursuant to the April 2016 Terms and the AAA Rules referenced therein, the parties had agreed to arbitrate threshold questions including the existence, scope, or validity of the arbitration agreement. Arnold opposed the motion to compel, arguing that the September 2015 Terms and Conditions, which do not contain arbitration requirements, governed. He also claimed that, even if the April 2016 Terms applied, HomeAway's authority to modify any terms or conditions without providing notice rendered the arbitration provision illusory and unenforceable under Texas law. The district court denied HomeAway's motion to compel arbitration. It found that the April 2016 Terms applied because Arnold renewed a subscription for one of his HomeAway accounts in May 2016. However, the court held that, under Texas law, the arbitration provision was illusory because HomeAway had reserved the unilateral right to avoid arbitration at any point without notice. The court did not address HomeAway's contention that the April 2016 Terms contained a delegation clause requiring Arnold to arbitrate threshold questions regarding the arbitration provision. HomeAway filed a timely notice of appeal, as is authorized by the Federal Arbitration Act ("FAA"). Although it resulted in a different outcome, the history of Seim's case is substantially similar. Seim also challenges HomeAway's imposition of traveler fees. HomeAway moved to compel arbitration under the February 2016 Terms and Conditions, which contained the same arbitration provision the April 2016 Terms did. As in Arnold's case, the district court did not address HomeAway's contention that a purported delegation clause required Seim to arbitrate threshold questions about the arbitration provision. However, the district court, applying Kentucky law, granted HomeAway's motion to compel arbitration. The court concluded that when Seim renewed a subscription for one of her properties and agreed to the February 2016 Terms, she agreed to arbitrate all claims against HomeAway, including any claims predating the February 2016 Terms. The district court entered a final judgment of dismissal, and Seim timely appealed. Arnold's contention is that the arbitration provision as a whole is unenforceable under Texas law. Because his challenge is not specific to the delegation clause, Judge Dennis concludes that Arnold must present it to an arbitrator. Having concluded that there is a contract between the parties that contains a putative arbitration provision, that the parties have agreed to delegate threshold questions about the arbitration provision to an arbitrator, and that Arnold does not specifically challenge the validity of the delegation clause, the Judge needs not reach the remainder of the issues briefed by the parties. Under the preceding principles, the resolution of Seim's appeal is straightforward. Because the February 2016 Terms contain the same delegation clause as the April 2016 Terms, they too contain clear and unmistakable evidence of the parties' intent to delegate gateway questions like scope to an arbitrator. Seim's only argument to the contrary is that the difficulty that the parties, lawyers and courts have in deciding which 'contract' even applies shows the lack of clear and unmistakable intent to arbitrate. But this argument, at most, according to the Judge, suggests lack of clarity as to the scope of the arbitration provision. Because there is an agreement to arbitrate some set of claims, a delegation provision, and no specific challenge to that provision, Seim's additional arguments are for an arbitrator to resolve. Thus, in Seim's case, the district court was correct to order arbitration but should not have assessed threshold questions itself. Consistent with the Court's opinion, the parties may revisit these issues in arbitration. For these reasons, Judge Dennis reversed the judgment of the district court in No. 17-50088 and remanded with instructions to grant the motion to compel arbitration; and affirmed the judgment of the district court in No. 17-50102 and remanded with instructions to grant the motion to compel arbitration. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/40tzaO from Leagle.com. Jane Webre -- jwebre@scottdoug.com -- for Defendant-Appellant. Daniel Henry Byrne -- dbyrne@fbhf.com -- for Plaintiff-Appellee. Bryan Michael Killian -- bryan.killian@morganlewis.com -- for Defendant-Appellant. David Dean Shank -- dshank@scottdoug.com -- for Defendant- Appellant. Keith Joseph Wesley -- kwesley@bgrfirm.com -- for Plaintiff- Appellee. Michael Andrew Bowse -- mbowse@bgrfirm.com -- for Plaintiff- Appellee. Stephanie Beth Schuster -- stephanie.schuster@morganlewis.com -- for Defendant-Appellant. John Warren Rissier -- warren.rissier@morganlewis.com -- for Defendant-Appellant. HUON CORP: Litigation Funder Responds to Case Publicity ------------------------------------------------------- The following is a contributed piece from a Commercial Litigation Funder in response to recent publicity over the Huon Case. It is peculiar that reference continues to be made to the Huon Corporation case in the context of "high-profile class actions" and the distribution of class action settlements, as this case was not progressed as a class action or a representative proceeding. The funded plaintiffs in this claim were two very experienced professionals, who were appointed as trustees of certain former Huon Corporation employees. In that role, the trustees were responsible for protecting the interests of the specified employees, and for progressing the legal proceedings on their behalf. Despite the trustees' role and mandate, ultimate outcome in the Huon Corporation case was a result of the quantum of the claim's recovery and the legal costs that were incurred in order to achieve it. The March 2018 Victorian Law Reform Commission Report on Litigation Funding and Group Proceedings reported that the costs in the case totalled $3.26million, against a settlement of $5.1million. The Commission further commented that "the cost of the proceedings was clearly disproportionate to the size of the claim" and that "according to the trustees, the initial legal costs estimates were 'hopelessly inadequate' because of the long trial time and legal process and disputes. The litigation was conducted over almost five years and, 'from the beginning, (the defendant) maintained an obtuse approach in dealing with the trustees' demands and subsequent litigation'". The proceedings were aggressively defended. It has since become apparent that the insurer defendant had failed to make adequate provision for its insurance liabilities, which have resulted in its collapse and an application of the Reserve Bank of New Zealand for it to be wound up. This may give some insight into the unfortunate way that this defendant chose to conduct the litigation. Litigation is unpredictable and risky, and the cost of advancing a claim, particularly against an adversarial defendant, can have a very significant impact on the action's ultimate proceeds. Nevertheless, throughout the life of a funded matter (prolonged as some matters may be) the funder continues to provide funding of legal costs and disbursements, and continues to bear the full risk of the action's downside. This is so despite the fact that it is not funder's role, nor is it properly the funder's prerogative, to assume a plaintiff's right and responsibility to conduct the plaintiff's proceedings, instruct its legal representatives and, by extension, drive and regulate the quantum of incurred legal costs or adverse costs. It is not often dwelled upon by litigation funding critics that had the Huon Corporation action (and the same can be said for most funded actions) resolved for less than its ultimate outcome, or had the defendant been successful at first instance or on appeal, it is the funder who would have been liable to make payment of the full sum of the plaintiffs' considerable legal costs and, in addition, to meet the very significant burden of adverse costs orders. It is the services of litigation funders that allow the rights of a litigant to be enforced with that litigant facing no risk or cost. [GN] HYATT HOTELS: Seeks Dismissal of Antitrust Class Action ------------------------------------------------------- Joyce Hanson, writing for Law360, reports that Hyatt, Marriott and other hospitality giants asked an Illinois federal court to throw out a class action alleging the companies are colluding in an anti-competitive agreement to not advertise against one another via Google and other search engines, arguing the suit jumps to conclusions without adequately supporting its claims. The hotel companies joined on June 22 in filing a motion to dismiss lead plaintiff Karen Tichy's latest complaint asserting violations of the Sherman Antitrust Act, saying the suit's allegations of a conspiracy fail to support an antitrust claim... The case is captioned Tichy v. Hyatt Hotels Corporation et al, Case No. 1:18-cv-01959 (N.D. Ill.). The case is assigned to Judge Honorable Rebecca R. Pallmeyer. The case was filed March 19, 2018. [GN] ILLINOIS: Court Assigns Prisoner's Suit for Screening ----------------------------------------------------- The United States District Court for the Southern District of Illinois assigned the action styled ANTHONY CRAWFORD, GREGORY GANDY, and HOWARD TESSMAN, Plaintiff, v. SALVADOR GODINEZ, TY J. BATES, RANDY DAVIS, NORMAN SUITS, BARNHART, KEVIN CONROY, LANCE MERCHANT, OXFORD, and UNKNOWN AND UNNAMED OFFICERS AT IIP, Defendants, Case No. 18-cv-1067-MJR (S.D. Ill.), to United States Magistrate Judge Stephen C. Williams for disposition of non- dispositive pre-trial matters and dispositive matters on an R&R basis pursuant to 28 U.S.C. Section 636(b)(1)(A) and (B). The Plaintiffs are bringing a single Eighth Amendment claim (Count I) for cruel and unusual punishment. Pursuant to Section 1915A, courts are required to screen prisoner complaints and dismiss a complaint, or any portion thereof, that is frivolous, malicious, or fails to state a claim upon which relief may be granted. Here, the Complaint does not specify whether each named plaintiff is a prisoner as defined by 28 U.S.C. Section 1915(h)1 and the Court's independent research on the matter is not conclusive. Nevertheless, the Court need not resolve any ambiguity pertaining to the each named Plaintiff's status as a prisoner at the time of filing. The Complaint states a viable Eighth Amendment claim pertaining to conditions of confinement at IIP. Therefore, the Court finds that, to the extent Section 1915A screening is required, the Complaint survives preliminary review. A full-text copy of the District Court's May 14, 2018 Memorandum and Order is available at https://tinyurl.com/ydduru2x from Leagle.com. Anthony Crawford, Individually and on behalf of all other similarly situated former inmates at Dixon Springs Impact Incarceration Program, Gregory Gandy, Individually and on behalf of all other similarly situated former inmates at Dixon Springs Impact Incarceration Program & Howard Tessman, Individually and on behalf of all other similarly situated former inmates at Dixon Springs Impact Incarceration Program, Plaintiffs, represented by: Edward M. Fox, Esq. Ed Fox & Associates 300 W Adams St. #330 Chicago IL 60606 INTUIT INC: Court Dismisses 2nd Negligence Claim in "Diaz" ---------------------------------------------------------- In the case, CHRISTINE DIAZ, ET AL., Plaintiffs, v. INTUIT, INC., Defendant, Case No. 5:15-cv-01778-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted Intuit's motion to dismiss the Third Consolidated Amended Complaint's second claim for negligence brought by Richard Brown, and the third claim for aiding and abetting fraud brought by Brown and Diaz. Intuit develops and offers various financial and tax preparation software and related services, including TurboTax, a tax preparation software program. TurboTax can be utilized online or it can be downloaded and installed on a customer's personal computer. Inuit charges persons who file tax returns through TurboTax a "tax preparation fee" generally between approximately $50 and $150, in addition to other fees. The Plaintiffs allege that Intuit has known for years that fraudsters exploit Intuit's lax security in order to open fraudulent accounts with Intuit and file numerous fraudulent tax returns through TurboTax in other peoples' names. It allegedly allows the fraud to occur through TurboTax in two ways: (a) Stolen Identity Refund Fraud ("SIRF"), where a fraudster gathers data about a taxpayer from outside means (such as the black market or "phishing"), creates a fraudulent, new TurboTax account in the victim's name, and files a fraudulent tax return in the victim's name through TurboTax; and (b) Account Takeover Refund Fraud ("ATO"), where a fraudster hacks into an existing TurboTax account and files a fraudulent return in the victim's name through TurboTax. Intuit allegedly knew that it was allowing SIRF and ATO fraud to occur through TurboTax and that its allegedly lax security protocols were enabling and assisting the fraud. It allegedly knew that the risk of fraud perpetrated through TurboTax was continuing to increase as the number of major external data breaches increased, exposing the personal identifying information of millions of Americans to would-be fraudsters. Despite knowledge of widely reported data breaches involving identity theft, and knowledge of SIRF and ATO fraud, Intuit allegedly maintained lax security policies. Intuit allegedly chose not to implement basic, fundamental security measures that were suggested by its own experts and by others. Moreover, Intuit eliminated one important protection it previously had in place -- a multi-step authentication -- in order to make it more convenient to open new accounts and to file returns (fraudulent and otherwise) through TurboTax and thereby generate more revenue for Intuit. Intuit allegedly made a deliberate and knowing decision to maintain the protocols to generate revenue and market share. The Plaintiffs also allege that Intuit's desire to maximize fee revenue caused it to ignore the recommendations of its own security experts, Robert Lee and Shane MacDougall. Plaintiff Brown was never a TurboTax customer; he never used TurboTax or purchased Turbo Tax software. Brown alleges that Intuit allowed fraudulent tax return(s) to be filed in his name through TurboTax. The first time he learned that anything was wrong was when his accountant informed him that he could not e- file his 2014 federal tax return because a fraudulent 2014 tax return had already been filed using his Social Security number. He also received a bill from Intuit. Plaintiff Diaz purchased the desktop version of TurboTax and used it to e-file her tax year 2010 Ohio state and federal tax returns. Since then, she has not used TurboTax. She alleges that Intuit allowed fraudulent tax return(s) to be filed in her name through TurboTax. Diaz learned about the fraudulent tax returns when she received a bill from Intuit for e-filings in her name for Tax Year 2014 for state tax returns in Michigan, Missouri, Ohio and Oklahoma and for a Tax Year 2014 federal home and business tax return. Both Plaintiffs allege that they were the victims of SIRF fraud. Pursuant to Rule 12(b)(6), Fed.R.Civ.P., Intuit moves to dismiss the second claim for negligence brought by Brown and the third claim for aiding and abetting fraud brought by Brown and Diaz. Brown does not allege that the fraudsters' use of his personal identifying information to open an account was in any way "suspicious" or raised "danger signals." Instead, he alleges that Intuit recognized that the account came from a "High Risk Domain" -- Hushmail.com. Judge Davila finds that this single indicator of alleged fraud -- use of a "High Risk Domain" -- does not create circumstances sufficiently suspicious to alert Intuit of fraud. Brown does not allege that email accounts issued by Hushmail.com are used for wholly fraudulent purposes. Nor does he allege that legitimate TurboTax customers would never use a Hushmail.com email address. In the absence of these types of allegations, the Judge says, the use of Hushmail.com is insufficient to establish Intuit's actual knowledge of fraud. To impose a duty of care on the basis of an email coming from an allegedly "High Risk Domain," in the absence of other objective indicia of fraud, would stretch the concept of foreseeability of harm in determining duty beyond recognition. Because the alleged harm to Brown was not foreseeable, the negligence claim fails as a matter of law. The Judge also finds that the Plaintiffs have not alleged that Intuit provided encouragement, direction or technical support directly to a specific fraudster. In Benson v. JP Morgan Chase Bank, N.A., the plaintiffs alleged facts showing that a bank aided and abetted the primary tortfeasor, who was identified by name, in a Ponzi scheme by allowing the tortfeasor and his associates to deposit monies into accounts, permitting them to commingle funds, allowing them to transfer large amounts of investment deposits to offshore banking accounts, allowing the tortfeasor to use investor monies to pay for personal expenses, and authorizing remote banking platforms that prevented oversight. In contrast, the Plaintiffs in this case fail to allege the identity of any primary tortfeasor, much less that the Intuit knew that a specific tortfeasor was committing fraud using their personal identifying information or that Intuit made a conscious decision to participate in the fraud. For the reasons set forth, Judge Davila granted Intuit's motion to dismiss the Plaintiffs' second and third claims. He set a case management conference for June 7, 2018 at 10:00 a.m. The Parties will file a joint case management statement in accordance with Local Rule 16-8 no later than May 25, 2018. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/uFvvT0 from Leagle.com. Christine Diaz, Plaintiff, represented by David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP, Jae Kook Kim -- jkk@mccunewright.com -- McCune Wright Arevalo, LLP, John A. Yanchunis -- JYanchunis@ForThePeople.com -- Morgan and Morgan, P.A., pro hac vice, Michael W. Sobol -- msobol@lchb.com - - Lieff Cabraser Heimann & Bernstein, LLP, Rachel Lynn Soffin -- RSoffin@ForThePeople.com -- Morgan and Morgan, Roger Norton Heller -- rheller@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Jason Louis Lichtman -- jlichtman@lchb.com -- Lieff Cabraser Heimann Bernstein LLP, Joel R. Rhine, Rhine Law Firm, pro hac vice, Joseph Jeremy Siprut, Siprut PC, Melissa Ann Gardner -- mgardner@lchb.com -- Lieff Cabraser Heimann Bernstein, LLP, Steven William Teppler, Abbott Law Group, P.A. & Richard D. McCune, Jr. -- rdm@mccunewright.com -- McCune Wright Arevalo, LLP. David Stock, Plaintiff, represented by John A. Yanchunis, Morgan and Morgan, P.A., pro hac vice, Julian Ari Hammond -- jhammond@hammondlawpc.com -- HammondLaw, PC, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP, Steven William Teppler, Abbott Law Group, P.A. & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. James Lebinski, Plaintiff, represented by John A. Yanchunis, Morgan and Morgan, P.A., pro hac vice, Mark S. Goldman -- mgoldman@labaton.com -- Goldman Scarlato & Penny, P.C., Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP, Steven William Teppler, Abbott Law Group, P.A. & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. Carol Knoch & Richard Brown, Plaintiffs, represented by Ariana J. Tadler -- atadler@milberg.com -- Milberg Tadler Phillips Grossman LLP, Henry J. Kelston -- hkelston@milberg.com -- Milberg Tadler Phillips Grossman LLP, Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP, Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP, Steven William Teppler, Abbott Law Group, P.A. & Michael W. Sobol, Lieff Cabraser Heimann & Bernstein, LLP. Marilyn Williams, Plaintiff, represented by Melissa Ann Gardner, Lieff Cabraser Heimann Bernstein, LLP & Roger Norton Heller, Lieff Cabraser Heimann & Bernstein, LLP. Intuit, Inc., Defendant, represented by Rodger R. Cole -- rcole@fenwick.com -- Fenwick & West LLP, Alexis Caloza -- acaloza@fenwick.com -- Fenwick and West LLP, Chieh Tung -- ctung@fenwick.com -- Fenwick and West LLP & Nair Diana Chang -- dchang@fenwick.com -- Fenwick & West LLP. KC CONSULTING: Ct. Denies Default Judgment in "Abarca" FLSA Suit ---------------------------------------------------------------- The United States District Court for the District of New Jersey denied Plaintiffs' Motion for Default Judgment in the case captioned CHRISTIAN ABARCA, et al, Plaintiffs, v. KC CONSULTING GROUP, INC., Defendant, Civil Action No. 16-213 (D.N.J.). The dispute concerns the Defendant's alleged violation of both the Fair Labor Standards Act (FLSA), and the New Jersey State Wage and Hour Law (NJWHL). The Defendants did not answer, move, or otherwise respond to the Complaint. The Court has denied the Plaintiffs' unopposed motion for default judgment as to KC Consulting without prejudice. The Court determined that, at the time, other defendants in the case were actively litigating, and, therefore, entering a default judgement would risk potentially inconsistent judgments. The Plaintiffs' attorney sent a letter advising the Court that they did not intend to pursue claims against Carter Wilson and requesting to renew the motion for default judgment against KC Consulting Group. KC Consulting Group was the only Defendant remaining in the case. The Court reinstated the Plaintiffs' motion for default judgment as to KC Consulting Group. The Court finds that service of the summons and complaint was proper on KC Consulting. The Court also finds that although the Plaintiffs allege facts sufficient to sustain a class and collective action, the Court will deny the Plaintiffs' motion for default judgment. Plaintiffs moved for default judgment on behalf of themselves and other members of the proposed FLSA collective and NJWHL class action. Entering judgment gives the Court pause because in a Rule 23(b)(3) class action, class members must opt-out or they are bound by the final judgment. Thus, a court typically directs to class members the best notice that is practicable under the circumstances, which includes adequate notice of the case and their right to request exclusion. Here, Plaintiffs have not sent notice to the proposed class members, and, therefore, the Court is concerned that entering a default judgment may bind persons whose rights are at issue, without the protection of their first receiving proper notice. Similarly, as to the collective action, the Plaintiffs indicate that several persons have opted-in. Yet, no notice of the collective action has been sent to potential plaintiffs, so the Court is equally concerned that others who may wish to opt-in have not been given the proper opportunity. Indeed, no conditional certification of the FLSA collective action has been sought much less final certification. A full-text copy of the District Court's May 14, 2018 Opinion is available at https://tinyurl.com/y9avhodr from Leagle.com. CHRISTIAN ABARCA, NIXON ARNOLD, SYUAPA ALVAREZ, REINA CALLEJAS & NORA RODRIGUEZ, Plaintiffs, represented by DAVID ZATUCHNI, ZATUCHNI & ASSOCIATES, LLC. KLONDEX MINES: Chandra Files Suit Over Sale to Hecla Mining ----------------------------------------------------------- Arvind Chandra, on behalf of himself and all others similarly situated v. Klondex Mines Ltd., Richard J. Hall, Paul Huet, William Matlack, Charles Oliver, Blair Schultz, Rodney Cooper, Mark Daniel, and James Haggarty, Case No. 3:18-cv-00305 (D. Nev., June 25, 2018), seeks to recover damages resulting from the Defendants' violations of the Securities and Exchange Act of 1934. The Plaintiff filed the case in connection with the proposed acquisition of Klondex by Hecla Mining Company, says the complaint. The Plaintiff alleged that in order to convince Klondex's stockholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a Proxy Statement which contains incomplete and materially misleading information regarding (i) the financial analyses conducted by the Company's financial advisors, GMP Securities, L.P., INFOR Financial Inc., and Maxit Capital, in connection with the Proposed Transaction; and (ii) the financial projections for Klondex, Havilah, Hecla, and the pro forma combined company. The Plaintiff is a continuous owner of Klondex common stock. Headquartered in Reno, Nevada, the Defendant Klondex engages in the acquisition, exploration, and development of mineral resources in the United States and Canada. The Individual Defendants are officers of Klondex. [BN] The Plaintiff is represented by: G. Mark Albright, Esq. Jorge L. Alvarez, Esq. ALBRIGHT, STODDARD, WARNICK & ALBRIGHT 801 S. Rancho Drive, Suite D-4 Las Vegas, NV 89106 Tel: (702) 384-7111 E-mail: gma@albrightstoddard.com jalvarez@albrightstoddard.com LABOR READY: 9th Cir. Affirms Final Approval of "Allen" Suit Deal ----------------------------------------------------------------- In the case, MARGIE BEDOLLA; et al., Objectors-Appellants, v. JEFFREY LEE ALLEN, on behalf of himself, all others similarly situated, the general public and as an "aggrieved employee" under the California Labor Code Private Attorneys General Act, Plaintiff-Appellee, LABOR READY SOUTHWEST, INC., a Washington corporation doing business in the State of California; DOES, 1- 50, inclusive, Defendants-Appellees, Case No. 16-56621 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's September 2016 order granting final approval to a settlement resolving Jeffrey Lee Allen's class-action wage and hour claims against Labor Ready. Objecting settlement-class members Bedolla, Anthony Allen, and Michael Alvarez appeal from the district court's September 2016 order. On remand, the Appellate Court finds that the district court conducted a "more searching inquiry" as the Appellate Court ordered in 2015. It is true that the 2016 settlement agreement contains the same three "subtle signs" of collusion as the 2013 settlement agreement. But this time, the district court's final approval order provides adequate assurance that it verified the fairness of the settlement agreement notwithstanding those three red flags. Altogether, on remand, it says, the district court held a status conference and four hearings on the fairness of various drafts of the settlement agreement. The district court considered the transient nature of the class, the difficulty of providing monetary relief to the absent class members, and whether it would be better for the class to deny approval and allow the remaining claims to go to trial. Accordingly, the district court followed our instruction to conduct a "more searching inquiry" into the substantive fairness of the settlement agreement, and has shown it has explored comprehensively all factors, and has given a reasoned response to all non-frivolous objections. The Appellate Court concludes holds that the district court did not abuse its discretion in finding that the settlement is fair, adequate, and reasonable. It properly concluded that the settlement as a whole provides value to the class. The Objectors have not argued that the district court applied the wrong law or relied on an unreasonable finding of fact in granting final approval to the settlement with Mr. Allen and his counsel as adequate class representatives. Particularly considering its six years of experience with these parties, the Appellate Court holds that the district court did not abuse its discretion in doing so. Accordingly, it affirmed. A full-text copy of the Ninth Circuit's May 15, 2018 Memorandum is available at https://is.gd/fYDviW from Leagle.com. LASERSHIP INC: Judge Transfers Workers' Class Action to Virginia ---------------------------------------------------------------- Alison Noon, writing for Law360, reports that a Massachusetts deliveryman who claims LaserShip misclassified and underpaid workers must transfer his class action to Virginia, where the package distribution company will seek to enforce a mandatory arbitration clause, a federal judge ruled in an order published on June 25. U.S. District Judge Nathaniel M. Gorton recognized a forum selection clause in the company's independent contractor agreement, requiring a transfer from Massachusetts to the U.S. District Court for the Eastern District of Virginia. His order also recognized mandatory arbitration. [GN] LOUISIANA: "Abshire" Class Certification Affirmed ------------------------------------------------- In the case, DONALD W. ABSHIRE AND THE OTHER PETITIONERS NAMED HEREIN, v. THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE STATE OF LOUISIANA, THROUGH THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE LOUISIANA INSURANCE GUARANTY ASSOCIATION; AND STANDARD ANALYTICAL SERVICE, INC. EDWARD J. APPLE AND THE OTHER PETITIONERS NAMED HEREIN, v. THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE STATE OF LOUISIANA, THROUGH THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE LOUISIANA INSURANCE GUARANTY ASSOCIATION; AND STANDARD ANALYTICAL SERVICE, INC. AND ARTHUR A. LEWIS, LEONA LEWIS, LESTER A. SAUCIER, MARIE S. SAUCIER, FULGENCE PONTHIER, VERDIE F. PONTHIER, JOSEPH W. GOUDEAU, JR., RODIA L. GOUDEAU, NORRIS J. KIMBALL, JANET G. KIMBALL, STEWART J. AYMOND, MILDRED L. AYMOND, JOYCE GREMILLION, CRAIG P. ORTEGO, MARCELLA ORTEGO, LEWARD P. ORTEGO, ESSIE ORTEGO, HAZEL CHARRIER, ELDRED DESSELLE, SABIA DESSELLE, CRYSTAL JEANSONNE, WARREN GALLAND, LOUISE GALLAND, ELIA M. MILLIGAN, JOHN W. CHEEK, JANELL CHEEK, L.J. CHEEK, VERNA M. CHEEK, DOROTHY M. GUILLORY, GEORGE P. LEMOINE, HAZEL K. LEMOINE, DONALD L. RACHAL, DIANA DAUZAT RACHAL, SADIE C. FOGLE, GERMAINE CHATELAIN, HARDY J. LACOUR, JERALDINE D. LACOUR, NORMAN G. HAYMON, JEAN EVELYN JOHNSON, YVONNE LEWIS WELBORN, HAZEL T. FIRMIN, AND CHARLES D. LEWIS v. THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE STATE OF LOUISIANA THROUGH THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE LOUISIANA INSURANCE GUARANTY ASSOCIATION; AND STANDARD ANALYTICAL SERVICE, INC., Case No. 2017 CA 0689, Consolidated With No. 2017 CA 0690 (La. App.), Judge John Pettigrew of the Court of Appeal of Louisiana for the First Circuit affirmed the trial court's judgment granting the Plaintiffs' motion to certify the class. The protracted litigation involves approximately 826 to 1,326 Plaintiffs who have filed suit against various agencies of the State of Louisiana and multiple insurers of the State regarding companies in which they had previously invested and lost significant financial assets. The case originally proceeded as a consolidated matter with several hundred Plaintiffs joined in the litigation and represented by the same counsel. In order to direct the litigation, the Plaintiffs formed a corporation to operate as a representative body to legally act on their behalf. As litigation progressed, numerous Plaintiffs died or became incapacitated and their heirs or representatives were substituted as parties. During settlement negotiations, it became evident that the only way to obtain authority to settle the case was to convert it to a class action, based upon a Louisiana State Bar Association Ethics Advisory Service Committee opinion. The proposed class is defined as follows: i. All persons or entities in the United States who filed suit against the State of Louisiana and/or its DOI or OFI for damages caused by the State's conduct in connection with the failure of PILICO, and whose claim was consolidated into Civil Action No. 377,713 or No. 412,265 (captioned Donald W. Abshire, et al. vs. The State of Louisiana, et al.); ii. All persons or entities in the United States who filed suit against the State of Louisiana and/or its DOI or OFI for damages caused by the State's conduct in connection with the failure of PICO, and whose claim was consolidated into Civil Action No. 377,713 or No. 412,265 (captioned Donald W. Abshire, et al. v. The State of Louisiana, et al.); iii. All persons or entities in the United States who filed suit against the State of Louisiana and/or its DOI or OFI for damages caused by the State's conduct in connection with the failure of [Midwest], and whose claim was consolidated into Civil Action No. 377,713 or No. 412,265 (captioned Donald W. Abshire, et al. v. The State of Louisiana, et al.); At the conclusion of the class action certification hearings, the trial court denied certification on the basis that the Plaintiffs failed to meet one of the statutory prerequisites for class certification, namely, La. Code Civ. P. art. 591(A)(1)'s "numerosity" requirement, which requires the plaintiffs to demonstrate that the class is so numerous that joinder of all members is impracticable. The trial court reasoned that it could not ever be said that the joinder of the members was impracticable because all of the putative plaintiffs were already parties to the litigation. The Plaintiffs appealed the denial of class certification. In that prior appeal, Abshire v. State ex rel. Dept. of Ins. of State, 2012-0104 (La. App. 1st Cir. 12/18/13), 2013 WL 6712235 (unpublished opinion), writs denied, 2014-0133, 2014-0137, 2014- 0162 (La. 4/4/14), 135 So.3d 642, 643, 643, the Court ruled that the trial court applied an incorrect legal standard when analyzing whether the plaintiffs satisfied the numerosity requirement for class certification. Utilizing de novo review of the trial court's factual findings, the Appellate Court found that the Plaintiffs met their burden of proving the numerosity requirement. Accordingly, it reversed the trial court's judgment that the Plaintiffs did not meet the numerosity requirement for the class certification. It did not, however, undertake a review of the trial court's ultimate decision not to certify the class, and instead, remanded the matter to the trial court to conduct a full analysis of whether the Plaintiffs met the remaining prerequisites as well as any additional requirements imposed by law for class action certification. Following remand, the trial court signed a judgment on Sept. 14, 2016, granting the Plaintiffs' motion to certify the class action. The Defendants -- the State of Louisiana, through the Department of Insurance ("DOI"); the Louisiana Office of Financial Institutions ("OFI"); the State of Louisiana Office of Risk Management ("ORM"); Admiral Insurance Company ("Admiral"); Lexington Insurance Co. ("Lexington"); National Union Fire Insurance Company of Pittsburgh, PA ("National Union"); and, Westchester Fire Insurance Co. ("Westchester") -- now appeal the trial court's judgment granting the Plaintiffs' motion to certify the class. Judge Pettigrew finds that the Plaintiffs were required to prove the five prerequisites for the class action certification as set forth in La. Code Civ. P. art. 591(A), as well as prove that questions of law or fact common to the members of the class predominate over individual issues and that the class action is superior to any other procedural method for resolving the controversy fairly and efficiently, as set forth in La. Code Civ. P. art. 591(B)(3). Based on his review of the record, he cannot say that the trial court erred in its factual determination that the Plaintiffs satisfied the statutory requirements for class action certification found in La. Code Civ. P. art. 591. Furthermore, based on the trial court's well-reasoned analysis regarding the implementation of substantive law, the effectuation of judicial efficiency, and the promotion of individual fairness, the Judge concludes that the trial court did not abuse its discretion in ultimately deciding to certify the class. Therefore, the trial court's Sept. 14, 2016 judgment certifying the Plaintiffs' class action is affirmed. He notes, however, that the trial court can revisit or modify its decision regarding the class certification if later developments so require. All costs of the appeal, in the amount of $3,514.50, are cast to the Defendants-Appellants. A full-text copy of the La. App.'s May 16, 2018 Order is available at https://bit.ly/2HOSORa from Leagle.com. JOHN GREGORY ODOM -- jodom@odrlaw.com -- STUART E. DES ROCHES -- stuart@odrlaw.com -- AND CHRISTOPHER T. STOW-SERGE -- cstow@odrlaw.com -- ODOM & DES ROCHES, LLC, NEW ORLEANS, LA, and DAVID P. SMITH -- dsmith@ssrllp.com -- DAVID C. RAPHAEL, JR. -- draphael@ssrllp.com -- AND MITTIE J. BOLTON -- mbolton@ssrllp.com -- SMITH SEGURA & RAPHAEL, LLP, ALEXANDRIA, LA, and DAN B. McKAY, JR. -- louisianalaw@outlook.com -- McKAY LAW OFFICE, BUNKIE, LOUISIANA, COUNSEL FOR PLAINTIFFS/APPELLEES DONALD W. ABSHIRE, ET AL. JEFF LANDRY, ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE, BATON ROUGE, LA, and JOHN B. DUNLAP III, JENNIFER A. FIORE, SUSAN N. ECCLES, AND KATELIN H. VARNADO, DUNLAP FIORE, LLC, BATON ROUGE, LA, COUNSEL FOR DEFENDANTS/APPELLANTS LOUISIANA DEPARTMENT OF INSURANCE AND LOUISIANA OFFICE OF RISK MANAGEMENT. JEFF LANDRY, ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE, BATON ROUGE, LA, and DAVID M. LATHAM, KEARY L. EVERITT, AND MARIE G. EVERITT, EVERITT & LATHAM, L.L.C., NEW ORLEANS, LA, COUNSEL FOR DEFENDANT/APPELLANT LOUISIANA OFFICE OF FINANCIAL INSTITUTIONS. STUART PONDER -- sponder@hmhlp.com -- AND MICHAEL J. VONDENSTEIN -- mvondenstein@hmhlp.com -- HAILEY, McNAMARA, HALL, LARMANN & PAPALE, L.L.P., METAIRIE, LA, COUNSEL FOR DEFENDANT/APPELLANT ADMIRAL INSURANCE COMPANY. TIMOTHY G. SCHAFER -- tschafer@schafer-law.com -- AND RACHEL S. KELLOGG -- rkellogg@schafer-law.com -- SCHAFER & SCHAFER, LLP, NEW ORLEANS, LA, COUNSEL FOR DEFENDANT/APPELLANT LEXINGTON INSURANCE COMPANY. ROBERT I. SIEGEL -- rsiegel@glllaw.com -- AND TARA E. CLEMENT -- tclement@glllaw.com -- GIEGER, LABORDE & LAPEROUSE, LLC, NEW ORLEANS, LA, COUNSEL FOR DEFENDANT/APPELLANT NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. PAUL D. PALERMO -- ppalermo@bluewilliams.com -- AND CRAIG V. SWEENEY -- csweeney@bluewilliams.com -- BLUE WILLIAMS, LLP, METAIRIE, LA, COUNSEL FOR DEFENDANT/APPELLANT WESTCHESTER FIRE INSURANCE COMPANY. LOUISIANA: La. App. Vacates Class Certification in LPSC Suit ------------------------------------------------------------ In the case, LOUISIANA PUBLIC SERVICE COMMISSION, AND IN THEIR CAPACITIES AS COMMISSIONERS LAMBERT C. BOISSIERE, III, JAMES M. FIELD, FOSTER L. CAMPBELL, ERIC SKRMETTA, AND CLYDE C. HOLLOWAY, v. LOUISIANA STATE LEGISLATURE, Case No. 2017 CA 0712 (La. App.), Judge Duke Welch of the Court of Appeal of Louisiana for the First Circuit vacated the trial court's judgment in favor of Plaintiffs Field and Campbell in their individual capacities, which certified the action as a class action and appointed them in their individual capacities as the class representatives. Essentially, on July 1, 2010, the LPSC1 and its Commissioners ("Original Plaintiffs") filed suit against the Louisiana State Legislature, seeking a declaratory judgment that 2009 La. Acts, No. 266 and 2010 La. Acts, No. 633 were unconstitutional. Both Acts 226 and 633 authorized the transfer of money from the three dedicated funds that fund the LPSC's operations into the state's general fund. The Original Plaintiffs claimed that it was unconstitutional for the Legislature to take special fee monies paid into statutorily dedicated funds and to apply them to another purpose, i.e., the state's general fund. In response, the Legislature filed a peremptory exception raising the objections of no right of action and no cause of action and a dilatory exception raising the objection of vagueness or ambiguity. Prior to the trial court's ruling on the exceptions, the Original Plaintiffs supplemented and amended their petition ("First Amended Petition") to add, as Plaintiffs, three Commissioners -- James Field, Foster Campbell, and Clyde Holloway -- in their individual capacities as ratepayers ("Amended Plaintiffs") and to allege that the commissioners were ratepayers of one or more common carriers or public utilities regulated by the LPSC, i.e., jurisdictional ratepayers. The Legislature likewise responded by filing an amended peremptory exception raising the objections of no cause of action and no right of action. The trial court subsequently sustained the objection of no cause of action and the amended objection of no cause of action on the basis that Acts 226 and 633 were not unconstitutional, decreed that the other exceptions were moot, and dismissed the claims of the Plaintiffs (both original and amended). A judgment in accordance with the trial court's ruling was signed on Dec. 8, 2011. The Original Plaintiffs, the LPSC and its Commissioners in their official capacities, appealed and the Court reversed the judgment of the trial court. The Court then remanded the matter for the trial court to rule on the Legislature's remaining exceptions. On remand, the trial court set a hearing on the Legislature's pending objections of no right of action (both original and amended) and vagueness or ambiguity, as well as the amended objection of no cause of action as to the Amended Plaintiffs' claims. At the hearing, the Legislature withdrew the objections of vagueness or ambiguity and the amended objection of no cause of action. By judgment signed on March 27, 2014, the trial court overruled the objection of no right of action (both original and amended) as to all of the Plaintiffs and overruled the objection of res judicata as to the Amended Plaintiffs. The Legislature filed a supervisory writ application with the Court, which was denied. On Sept. 30, 2015, two of the Amended Plaintiffs (James Field and Foster Campbell in their individual capacities as jurisdictional ratepayers) filed a motion for leave to amend and supplement the petition for declaratory judgment. Therein, they requested that they be allowed to amend the petition for declaratory judgment to include other members of a class and to assert a claim for the return of the unconstitutionally transferred funds on behalf of a class of Plaintiffs, i.e., the jurisdictional ratepayers. The trial court granted the motion for leave and James Field and Foster Campbell subsequently filed another amended and supplemental petition ("third amended petition"). In the third amended petition, Field and Campbell amended the pleadings to potentially include other members of a class, i.e., other jurisdictional ratepayers, to allow them to continue as representative parties, and to appoint Dennis Kelley to be appointed as another class representative. The relief sought in the third amended petition by Field and Campbell, individually as jurisdictional ratepayers, along with Kelley, and on behalf of the class, was a return of any and all surplus fees which were transferred to the state's general fund by virtue of the passage of Acts 226 and 633 and that any funds found by the Court to have been improperly or illegally transferred to the state general fund should be refunded to the jurisdictional ratepayers who paid these surplus fees. On June 10, 2016, James Field and Foster Campbell filed a motion to schedule a class certification hearing, which was heard on Oct. 17, 2016. On Dec. 6, 2016,7 the trial court rendered and signed a judgment certifying the class action as requested by Field and Campbell to include all persons, natural and/or juridical, who, between July 1, 2008 and June 30, 2010, were charged and paid fees. In addition, the trial court appointed Field and Campbell as the class representatives in connection with the I&S Fund, along with the TSR Fund. The trial court also granted leave to file a motion to amend the class representation to allow the appointment of a class representative for the MCR fund. From this judgment, the LPSC appeals. Judge Welch finds that accepting all of the well-pleaded allegations of fact set forth in the third petition as true, even if Acts 226 and 633 are declared unconstitutional, the law does not provide the remedy of returning or refunding the fees levied to the jurisdictional ratepayers. If Acts 226 and 633 are declared unconstitutional and/or it is determined that the legislature improperly or illegally swept the fees, the remedy, if any, would be the return of the funds from where they were taken, i.e., the three dedicated funds that fund the operation of LPSC or the jurisdictional entities -- the public utilities and carriers, the motor carriers, and/or the telephonic solicitors -- that actually paid the surplus fees. The funds that were swept cannot be directly returned or refunded to the jurisdictional ratepayers because the jurisdictional ratepayers did not directly pay any of the levied fees. Therefore, he concludes that Field and Campbell, individually and on behalf of a class of the Plaintiffs, have failed to set forth a cause of action for which the law provides a remedy. Thus, he renders judgment sustaining the peremptory exception raising the objection of no cause of action, properly noticed on our own motion. Further, he will vacate the Dec. 6, 2016 judgment of the trial court and will dismiss the third amended petition with prejudice. Accordingly, Judge Welch vacated the trial court's Dec. 6, 2016 judgment, which certified the action as a class action and appointed Field and Campbell in their individual capacities as the class representatives. Additionally, the third supplemental and amended petition filed by Field and Campbell, in their individual capacities as jurisdictional ratepayers and on behalf of the class, fails to state a cause of action for which the law provides a remedy. Therefore, he sustained the peremptory exception raising the objection of no cause of action, properly noticed on our own motion, and dismissed the third supplemental and amended petition with prejudice. All costs of the appeal are assessed against the Appellees Field and Campbell in their individual capacities. A full-text copy of the La. App.'s May 16, 2018 Order is available at https://bit.ly/2t8PbAe from Leagle.com. Brandon M. Frey, Melanie Verzwyvelt, Lauren M. Temento, Baton Rouge, LA, Attorneys for Appellants, Plaintiffs - Louisiana Public Service Commission, Department of Public Service, and in their Capacities as Commissioners, Lambert C. Boissiere, III, James M. Field, Foster L. Campbell, Eric F. Skrmetta and Clyde C. Holloway. Glen R. Petersen, L.J. Hymel, Michael Reese Davis, Baton Rouge, LA, Attorneys for Appellees, Amended Plaintiffs - James M. Field and Foster L. Campbell. MAGNACHIP SEMICONDUCTOR: "Thomas" Deal w/ Avenue Has Final OK ------------------------------------------------------------- In the case, KEITH THOMAS, et al., Plaintiffs, v. MAGNACHIP SEMICONDUCTOR CORP., et al., Defendants, Case No. 14-cv-01160-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted the Plaintiffs' unopposed motions for final approval of the class action settlement with Defendant Avenue Capital Management II, L.P.; and for attorneys' fees, costs, and incentive awards to the named class representative. The class action alleges violations of federal securities laws by MagnaChip Semiconductor, Inc.; MagnaChip's majority and controlling shareholder, Avenue Capital Management II, L.P.; and several individual defendants. The Court approved the Plaintiffs' class settlement ("First Settlement") with all the Defendants except Avenue Capital on Nov. 21, 2016. The Plaintiffs continued to litigate their case against Avenue Capital, including bringing a successful motion for class certification. The Court certified the class on Dec. 22, 2016 of all persons who purchased or otherwise acquired MagnaChip Semiconductor Corp. common stock between Feb. 1, 2012 and March 11, 2014, inclusive. It appointed Keith Thomas and Herb Smith as the class representatives, and Pomerantz, LLP and the Rosen Law Firm, P.A. as the class counsel. Following two full-day mediation sessions and facilitated settlement negotiations over the course of a year, the Plaintiffs and Avenue Capital reached a settlement ("Second Settlement"). The Court preliminarily approved the Second Settlement on Jan. 22, 2018. The settlement provides for a common fund of $6.2 million, including: payouts to class members; taxes and tax expenses; notice and claims administration costs; attorneys' fees and expenses; and incentive awards to the class representatives. The Class members were to be given notice and an opportunity to file a claim. However, the class members who submitted claims as part of the First Settlement would not be required to submit another claim to receive a distribution under the Second Settlement. The Class payouts will be based on the time frame during which class members purchased or sold shares of MagnaChip stock, as well as on the number of shares purchased or sold. The required notice to federal and state attorneys general under the Class Action Fairness Act was sent on Oct. 25, 2017. This notice occurred more than 90 days before the date of the Order. Before the Court are the Plaintiffs' unopposed motions for final approval of the class action settlement with Avenue Capital, and for attorneys' fees, costs, and incentive awards to the named class representatives. The Court held a final fairness hearing on May 10, 2018. After reviewing all of the required factors, including the reaction of the class, Judge Tigar continues to find the settlement fair, reasonable, and adequate. The Plaintiffs' motion for final approval of the settlement will be granted. Although the counsel did not submit detailed billing records or any support for their claimed hourly rates, they did submit tables summarizing the amount of work each timekeeper performed at different stages of the litigation. The Judge finds the submitted information to be sufficient for purposes of performing a lodestar cross-check, particularly when the resulting multiplier is so low. Even if the counsel's claimed lodestar were inflated by 100%, for example, the resulting multiplier would still be 1.42, which would be well within the range of reasonableness. Hence, he will award 25% of the common fund, or $1,550,000, in attorneys' fees. Although the claimed costs are high, the Judge finds that they are less than the $1.1 million maximum identified in the class notice. He has reviewed the detailed breakdown submitted by the counsel and finds the claimed costs to be reasonable. Prior to reaching a settlement, the parties engaged in extensive discovery, including multiple depositions in another country, and the nature of this case required significant use of experts. In addition, no class member objected to the request for costs. The class counsel's request for $795,401.42 in expenses will therefore be granted. Lastly, Thomas and Smith each met with counsel to prepare for a deposition and sat for a deposition, produced documents in response to Avenue Capital's discovery requests, communicated with counsel about the Action and helped evaluate settlement proposals. These contributions, according to the Judge, warrant incentive awards. The requested $1,500 awards are below the presumptively reasonable $5,000. They are also below the maximum $2,000 awards described in the class notice, and no class member objected to those potentially higher awards. Hence, the request for $1,500 incentive awards to each named class representative will be granted. Judge Tigar granted final approval of the proposed settlement and also granted the Plaintiff's motion for attorneys' fees, costs, and incentive awards. The Court will separately enter a modified version of the parties' proposed judgment. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/MMUPIy from Leagle.com. Richard Hayes, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, represented by Jeremy A Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Joshua B. Silverman -- jbsilverman@pomlaw.com -- Pomerantz LLP, pro hac vice, Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Marc Ian Gross -- migross@pomlaw.com -- Pomerantz LLP, pro hac vice, Michael J. Wernke -- mjwernke@pomlaw.com -- Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP, pro hac vice, Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm, P.A., Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP & Sunny September Sarkis -- ssarkis@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Keith Thomas, (Class Representative), Plaintiff, represented by Jeremy A Lieberman, Pomerantz LLP, pro hac vice, Lionel Z. Glancy, Glancy Prongay & Murray LLP, Marc Ian Gross, Pomerantz LLP, pro hac vice, Joshua B. Silverman, Pomerantz LLP, pro hac vice, Michael J. Wernke, Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom, Pomerantz LLP, pro hac vice, Robert Vincent Prongay, Glancy Prongay & Murray LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP. Herb Smith, (Class Representative), Plaintiff, represented by Jeremy A Lieberman, Pomerantz LLP, pro hac vice, Lionel Z. Glancy, Glancy Prongay & Murray LLP, Marc Ian Gross, Pomerantz LLP, pro hac vice, Joshua B. Silverman, Pomerantz LLP, pro hac vice, Michael J. Wernke, Pomerantz LLP, pro hac vice, Patrick V. Dahlstrom, Pomerantz LLP, pro hac vice, Robert Vincent Prongay, Glancy Prongay & Murray LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP. Magnachip Semiconductor Corp., Defendant, represented by Daniel J. Kramer -- dkramer@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Robert N Kravitz -- rkravitz@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Alex Young K. Oh -- aoh@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, Jacqueline P. Rubin -- jrubin@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice, John C. Tang -- jctang@jonesday.com - - Jones Day, Kelsey Israel-Trummel -- kitrummel@jonesday.com -- Jones Day & Meredith A. Arfa -- marfa@paulweiss.com -- Paul Weiss Rifkind Wharton & Garrison LLP, pro hac vice. Margaret Sakai, Defendant, represented by Kimberly Perrotta Cole, Kobre & Kim LLP, pro hac vice, Michael Sangyun Kim, Kobre & Kim LLP, pro hac vice & Michael Fang Peng , Kobre & Kim LLP. R. Douglas Norby & Ilbok Lee, Defendants, represented by Daniel J. Kramer, Paul Weiss Rifkind Wharton & Garrison LLP, Jacqueline P. Rubin, Paul Weiss Rifkind Wharton & Garrison LLP, Meredith A. Arfa, Paul Weiss Rifkind Wharton & Garrison LLP, Robert N Kravitz, Paul Weiss Rifkind Wharton & Garrison LLP & Alex Young K. Oh, Paul Weiss Rifkind Wharton & Garrison LLP. Nader Tavakoli, Defendant, represented by Daniel J. Fetterman, Kasowitz, Benson, Torres & Friedman LLP, pro hac vice, Jason Takenouchi, Kasowitz, Benson, Torres & Friedman LLP, Brian Choi, Kasowitz Benson Torres & Friedman LLP, pro hac vice & Trevor Joseph Welch, Kasowitz Benson Torres & Friedman LLP, pro hac vice. Randal Klein, Michael Elkins & Avenue Capital Management II, L.P., Defendants, represented by Ali R. Rabbani, Akin Gump Strauss Hauer & Feld LLP, Andrew S. Jick, Akin Gump Strauss Hauer & Feld LLP, Douglas Maynard, Akin Gump Strauss Hauer & Feld LLP, pro hac vice, John C. Murphy, Akin Gump Strauss Hauer Feld LLP, pro hac vice, Michael Asaro, Akin Gump Strauss Hauer & Feld LLP, pro hac vice, Neal Ross Marder, Akin Gump Strauss Hauer & Feld LLP, Peter Ian Altman, Akin Gump Strauss Hauer & Feld LLP, Stephen Michael Baldini, Akin Gump Strauss Hauer & Feld LLP, pro hac vice & Sydney Spector, Akin Gump Strauss Hauer & Feld LLP, pro hac vice. Barclays Capital Inc., Deutsche Bank Securities Inc., Citigroup Global Markets Inc., UBS Securities LLC & Needham & Company, LLC, Defendants, represented by Matthew Rawlinson, Latham & Watkins LLP, James E. Brandt, Latham & Watkins LLP, pro hac vice & Jason C. Hegt, Latham & Watkins LLP, pro hac vice. Oklahoma Police Pension & Retirement System, Interested Party, represented by Danielle Suzanne Myers, Robbins Geller Rudman & Dowd LLP, Marc Ian Gross, Pomerantz LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Joshua B. Silverman, Pomerantz LLP, pro hac vice, Mary K. Blasy, Robbins Geller Rudman & Dowd LLP, Michael J. Wernke, Pomerantz LLP,Patrick V. Dahlstrom, Pomerantz LLP, pro hac vice, Samuel H. Rudman, Robbins Geller Rudman & Dowd LLP, Shawn A. Williams, Robbins Geller Rudman & Dowd LLP & Sunny September Sarkis, Robbins Geller Rudman & Dowd LLP. MDL 2199: Court Lifts Stay of Non-California Claims --------------------------------------------------- The United States District Court for the Central District of California granted in part and denied in part Plaintiffs' Motion to Lift Stay of Non-California Claims in the case captioned IN RE: POM WONDERFUL LLC MARKETING AND SALES PRACTICES LITIGATION, Plaintiff, v. ----, Defendants, Case No. ML 10-02199 DDP (RZx), MDL No. 2199 (C.D. Cal.). Presently before the court is the question whether, in light of this Court's order decertifying a nationwide class, the Plaintiffs may nevertheless proceed with discovery and class certification motions regarding the Plaintiffs' non-California claims. The Master Consolidated Complaint alleged three causes of action under California law. This Court granted the Plaintiffs' motion for certification of a nationwide class under California law. Later, after the close of discovery, the Defendant moved to decertify the class. The court granted the Defendant's motion and decertified the class. The Plaintiffs moved to reopen discovery or, in the alternative, recommend to the Judicial Panel on Multidistrict Litigation (JPML) that it disband this multidistrict litigation and remand the non-California cases back to their transferor courts. This Court denied the Plaintiffs' motion. The Plaintiffs then moved the JPML to remand the non-California components of this case back to their transferor courts. The JPML denied the Plaintiffs' motion. The Plaintiffs now seek to lift the stay of non-California claims not included in the MCC and to set a discovery schedule regarding those claims. Rule 16 The Defendant argues that the Plaintiffs have not been diligent in seeking to reopen discovery regarding non-California claims because the instant request is at least three-and-a-half years (41 months) too late. The Defendant's argument is predicated on the assumption that the stay on the Plaintiffs' non-California claims lifted in March 2014, when this court decertified the nationwide class under California law. There appears to be no dispute that, prior to the instant motion, neither party sought to lift the stay or otherwise address the non-California claims. The Defendant appears to suggest that the stay on those claims automatically lifted, pursuant to Pre-trial Order 2, at the time this Court entered its decertification order. Pre-trial Order 2 provides that if the proposed nationwide class is not certified, then the stay will be lifted. Pretrial Order 2 did not, however, state that the stay would automatically lift or otherwise specify a particular mechanism for lifting the stay. Without such language, and absent a request by any party regarding the stay prior to this juncture, the court cannot agree with Defendant that the stay has yet lifted, let alone did so several years ago. Accordingly, the Rule 16 standard is inapplicable to the instant motion. Failure to Prosecute In determining whether dismiss for failure to prosecute, courts should consider (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions. The Plaintiffs now ask the court to lift the stay on the non- California claims, allow the Plaintiffs to conduct additional discovery, and permit the Plaintiffs to attempt to certify non- California statewide classes. The stay on the Plaintiffs' non- California claims did not automatically lift upon the issuance of this Court's decertification order. At the same time, the Plaintiffs have provided no explanation why they waited until this point to proceed with their non-California claims. Rather than dismiss those stayed, but stagnant, claims, this Court could adopt the less drastic alternative of lifting the stay without allowing the Plaintiffs additional discovery. It appears to the court that such would be the best course of action. Although dismissal of the stayed claims for failure to prosecute would not be inappropriate, given the balance of the relevant factors and the Plaintiffs' prior representations to this Court and to the JPML, this Court concludes that the Plaintiffs should be allowed to proceed with their non-California claims without additional discovery. Accordingly, the Plaintiffs' motion is granted, in part, and denied, in part. The stay on Plaintiffs' non-California claims is hereby lifted. To the extent Plaintiffs seek additional discovery on those claims, the motion is denied. Judicial Estoppel The Defendant also contends that the Plaintiffs should be estopped from asserting any claims under the laws of any state other than California. The doctrine of judicial estoppel is intended to protect the integrity of the judicial process, and generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Although the Plaintiffs did subsequently argue that the specifics of the various transferor venues' state laws warrant dissolution of this MDL proceeding in light of the decertification of a nationwide class, there is no indication that the Plaintiffs have abandoned their contention that California law can and should apply to any such class. A full-text copy of the District Court's May 14, 2018 Order is available at https://tinyurl.com/y8qqpbpa from Leagle.com. John Alexander & Melissa Espinoza, Consol Plaintiffs, represented by Alan M. Mansfield, The Consumer Law Group, Behram V. Parekh, Kirtland and Packard LLP, Heather Marie Baker Dobbs, Kirtland and Packard LLP, Joe R. Whatley, Jr., Whatley Kallas LLP, pro hac vice, Joshua Adam Fields, Kirtland and Packard LLP & Michael L. Kelly, Kirtland and Packard LLP. Pom Wonderful LLC, a Delaware liability company, Defendant, represented by Johnny Traboulsi, Roll Law Group PC, Bertram Harris Fields, Greenberg Glusker Fields Claman and Machtinger LLP, Brooke S. Hammond, Roll Law Group PC, Kristina M. Diaz, Roll Law Group PC, Matthew David Moran, Roll Law Group PC, Sean A. Commons, Sidley Austin LLP & Theodore R. Scarborough, Jr., Sidley Austin LLP, pro hac vice. Roll International Corporation, Successor, Trustees of Stewart and Lynda Resnick Revocable Trust, Stewart A. Resnick, Lynda Rae Resnick, Matthew Tupper & Publix Super Markets, Inc., Consol Defendants, represented by Kristina M. Diaz, Roll Law Group PC & Matthew David Moran, Roll Law Group PC. MDL 2420: Direct Purchasers' Deal with Samsung SDI Has Final OK --------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, Oakland Division, finally approved the settlement between Direct Purchaser Plaintiffs and Defendants Samsung SDI Co. Ltd. and Samsung SDI America, Inc., set forth in the parties' settlement agreement dated Aug. 2, 2017, in the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION, This Document Relates To: ALL DIRECT PURCHASER ACTIONS, Case No. 13-md-02420-YGR, MDL No. 2420 (N.D. Cal.). The Judge certified the settlement class, only with respect to Samsung SDI, of all persons and entities that purchased a Lithium Ion Battery or Lithium Ion Battery Product from any Defendant, or any division, subsidiary or affiliate thereof, or any co- conspirator in the United States during the Class Period, from Jan. 1, 2000 through May 31, 2011. She finds that Saveri & Saveri, Inc., Pearson, Simon & Warshaw, LLP, and Berman Tabacco, previously appointed as the Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, have and will fairly and competently represent the interests of the settlement class. She also granted final approval of the plan of allocation. The Judge dismissed with prejudice the Action in favor of the Samsung SDI Defendants, with each party to bear their own costs and attorneys' fees except as provided in the settlement agreement. She finds, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, that there is no just reason for delay in the entry of Judgment as to the parties to the settlement agreement. Accordingly, the Clerk is directed to enter Judgment forthwith for the Samsung SDI Defendants. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2t8rgB1 from Leagle.com. Kevin Young, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Kevin Young, Plaintiff, represented by George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Carte, Plaintiff, represented by Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau- Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc., Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay & Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri & Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco. Brian Hanlon, Plaintiff, represented by Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A. Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll. Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri & Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri, Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer, Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J. Bonsignore -- rbonsignore@class-actions.us -- Bonsignore Trial Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco. Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry - - bribarry1@yahoo.com -- Law Offices of Brian Barry, James E. Cecchi, Carella Byrne, Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver, Berman Tabacco. Rebecca Cervenak, Plaintiff, represented by William James Doyle, II -- bill@doylelowther.com -- Doyle Lowther LLP. John Russo, Plaintiff, represented by William James Doyle, II -- jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail, Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds & Partners, P.C.. LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin -- bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang -- bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee -- jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP. LG Chem America, Inc, Defendant, represented by Benjamin Edward Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP, Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP & Vanessa Greenwood Jacobsen, Eimer Stahl LLP. Samsung SDI America Inc, Defendant, represented by John Roberti - - john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP. Hitachi Ltd., Defendant, represented by Craig P. Seebald -- cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh -- elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP. Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP, Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com -- Vinson and Elkins L.L.P.. Maxell Corporation of America, Defendant, represented by Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P.. Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen & Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S. Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and Overy LLP. Maxwell Corporation of America, Defendant, represented by Thomas William Bohnett, Vinson and Elkins L.L.P.. Hitachi Maxell Corporation of America, Defendant, represented by Lindsey Robinson Vaala. Toshiba America Electronic Components Inc, Defendant, represented by Christopher M. Curran -- ccurran@whitecase.com -- White & Case & J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP. MDL 2420: Direct Purchasers' Deal with LG Chem Has Final Approval ----------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, Oakland Division, finally approved the settlement between Direct Purchaser Plaintiffs and Defendants LG Chem, Ltd. and LG Chem America, Inc., set forth in the parties' settlement agreement dated Oct. 2, 2017, in the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION, This Document Relates To: ALL DIRECT PURCHASER ACTIONS, Case No. 13- md-02420-YGR, MDL No. 2420 (N.D. Cal.). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge certified the settlement class, only with respect to LG Chem, of all persons and entities that purchased a Lithium Ion Battery or Lithium Ion Battery Product from any Defendant, or any division, subsidiary or affiliate thereof, or any co-conspirator in the United States during the Class Period, from Jan. 1, 2000 through May 31, 2011. She finds that Saveri & Saveri, Inc., Pearson, Simon & Warshaw, LLP, and Berman Tabacco, previously appointed as the Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, have and will fairly and competently represent the interests of the settlement class. She also granted final approval of the plan of allocation. The Judge dismissed with prejudice the Action in favor of the LG Chem Defendants, with each party to bear their own costs and attorneys' fees, except as provided in the settlement agreement. She finds, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, that there is no just reason for delay in the entry of Judgment as to the parties to the settlement agreement. Accordingly, the Clerk is hereby directed to enter Judgment forthwith for the LG Chem Defendants. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2lauGj0 from Leagle.com. Kevin Young, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Kevin Young, Plaintiff, represented by George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Carte, Plaintiff, represented by Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau- Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc., Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay & Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri & Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco. Brian Hanlon, Plaintiff, represented by Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A. Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll. Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri & Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri, Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer, Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J. Bonsignore -- rbonsignore@class-actions.us ---, Bonsignore Trial Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco. Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry - - bribarry1@yahoo.com -- Law Offices of Brian Barry, James E. Cecchi, Carella Byrne, Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver, Berman Tabacco. Rebecca Cervenak, Plaintiff, represented by William James Doyle, II -- bill@doylelowther.com -- Doyle Lowther LLP. John Russo, Plaintiff, represented by William James Doyle, II -- jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail, Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds & Partners, P.C.. LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin -- bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang -- bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee -- jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP. LG Chem America, Inc, Defendant, represented by Benjamin Edward Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP, Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP & Vanessa Greenwood Jacobsen, Eimer Stahl LLP. Samsung SDI America Inc, Defendant, represented by John Roberti - - john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP. Hitachi Ltd., Defendant, represented by Craig P. Seebald -- cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh -- elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP. Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP, Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com -- Vinson and Elkins L.L.P.. Maxell Corporation of America, Defendant, represented by Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P.. Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen & Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S. Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and Overy LLP. Maxwell Corporation of America, Defendant, represented by Thomas William Bohnett, Vinson and Elkins L.L.P.. Hitachi Maxell Corporation of America, Defendant, represented by Lindsey Robinson Vaala. Toshiba America Electronic Components Inc, Defendant, represented by Christopher M. Curran -- ccurran@whitecase.com -- White & Case & J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP. MDL 2420: Direct Purchasers' Deal with TOKIN Has Final Approval --------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, Oakland Division, finally approved the settlement between Direct Purchaser Plaintiffs and Defendant TOKIN Corp., formerly known as NEC TOKIN Corp., set forth in the parties' settlement agreement dated Aug. 30, 2017, in the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION, This Document Relates To: ALL DIRECT PURCHASER ACTIONS, Case No. 13-md-02420-YGR, MDL No. 2420 (N.D. Cal.). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge certified the settlement class, only with respect to TOKIN, of all persons and entities that purchased a Lithium Ion Battery or Lithium Ion Battery Product from any Defendant, or any division, subsidiary or affiliate thereof, or any co-conspirator in the United States during the Class Period, from Jan. 1, 2000 through May 31, 2011. She finds that Saveri & Saveri, Inc., Pearson, Simon & Warshaw, LLP, and Berman Tabacco, previously appointed as the Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure, have and will fairly and competently represent the interests of the settlement class. She also granted final approval of the plan of allocation. The Judge dismissed with prejudice the Action in favor of Defendant TOKIN, with each party to bear their own costs and attorneys' fees, except as provided in the settlement agreement. She finds, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, that there is no just reason for delay in the entry of Judgment as to the parties to the settlement agreement. Accordingly, the Clerk is hereby directed to enter Judgment forthwith for Defendant TOKIN. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2JALn5L from Leagle.com. Kevin Young, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Kevin Young, Plaintiff, represented by George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Carte, Plaintiff, represented by Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau- Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc., Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay & Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri & Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco. Brian Hanlon, Plaintiff, represented by Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A. Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll. Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri & Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri, Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer, Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J. Bonsignore -- rbonsignore@class-actions.us -- Bonsignore Trial Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco. Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry - - bribarry1@yahoo.com -- Law Offices of Brian Barry, James E. Cecchi, Carella Byrne, Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver, Berman Tabacco. Rebecca Cervenak, Plaintiff, represented by William James Doyle, II -- bill@doylelowther.com -- Doyle Lowther LLP. John Russo, Plaintiff, represented by William James Doyle, II -- jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail, Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds & Partners, P.C.. LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin -- bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang -- bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee -- jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP. LG Chem America, Inc, Defendant, represented by Benjamin Edward Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP, Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP & Vanessa Greenwood Jacobsen, Eimer Stahl LLP. Samsung SDI America Inc, Defendant, represented by John Roberti - - john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP. Hitachi Ltd., Defendant, represented by Craig P. Seebald -- cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh -- elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP. Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP, Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com -- Vinson and Elkins L.L.P.. Maxell Corporation of America, Defendant, represented by Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P.. Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen & Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S. Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and Overy LLP. Maxwell Corporation of America, Defendant, represented by Thomas William Bohnett, Vinson and Elkins L.L.P.. Hitachi Maxell Corporation of America, Defendant, represented by Lindsey Robinson Vaala. Toshiba America Electronic Components Inc, Defendant, represented by Christopher M. Curran -- ccurran@whitecase.com -- White & Case & J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP. MEDICREDIT INC: $5MM Deal in "Martinez" TCPA Suit Has Final OK -------------------------------------------------------------- In the case, MARILYNN MARTINEZ, et al., Plaintiffs, v. MEDICREDIT, INC., et al., Defendants. TODD HORNBERGER, et al., Plaintiffs, v. MEDICREDIT, INC., Defendant. Rajesh Verma, Plaintiff, v. MEMORIAL HEALTHCARE GROUP, INC., et al., Defendants, Consolidated Case No. 4:16CV01138 ERW (E.D. Mo.), Judge E. Richard Webber of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted both the Plaintiff's Motion for Final Approval of Class Action Settlement, and the Plaintiff's Motion for Attorney Fees and Reimbursement of Expenses and Incentive Awards. The case originated as a class action under the Telephone Consumer Protection Act ("TCPA"). The Plaintiffs alleged the Defendants made prerecorded calls to cell phones without the prior express consent of the class Plaintiffs or the putative class members. The case was resolved with a settlement agreement, which was preliminarily approved by the Court on Dec. 15, 2017. The Court also set a series of deadlines for notice to be sent to class members. The Notice was sent to 498,418 class members and 463,757 class members received a copy. Only eight opted out. The total settlement amount is $5 million to be divided pro rata among class members after expenses are deducted. After attorneys' fees and litigation expenses, each of the 28,406 class members who submitted a valid claim will receive approximately $91.25. The matter comes before the Court on the Plaintiff's Motions. The Defendants wrote a letter to the Court stating they agree with all the terms of the underlying proposed final order, except with respect to the cy pres recipient. The Plaintiff proposed the National Consumer Law Center ("NCLC"), which the Plaintiff argues is closely aligned to the class' interests to be protected by the TCPA. The Defendants state the NCLC's primary activity regarding the TCPA has been to lobby for expanded TCPA enforcement against organizations like Defendants. They state settlement funds should not be improperly used to support one party's counsel's agenda, citing S.E.C. v. Bear, Stearns & Co. The Defendants propose the Court designates Legal Services Corporation ("LSC") as the recipient. LSC is a nonprofit legal aid organization, and the Defendants propose the Court directs funding to telephone services. On May 15, 2018, Judge Webber held a final approval hearing, and it largely adopted parties' proposed final settlement order. However, he withheld resolving the issue as to identifying a cy pres recipient, should any funds remain for distribution. He accordingly concludes the settlement is fair, reasonable, and adequate. He likewise concludes the Plaintiff's request for attorneys' fees and costs is also fair and reasonable. Accordingly, Judge Webber finally approved the Agreement and finds that the terms constitute, in all respects, a fair, reasonable and adequate settlement as to all Settlement Class Members in accordance with Rule 23 of the Federal Rules of Civil Procedure. He finally certified the Settlement Class for settlement purposes of approximately 627,642 persons whose unique cellular telephone number has been identified in the call data produced in the litigation where the call records reflect Medicredit Inc. codes WN or DNK or NPAS Inc. Smart Codes 11, 13, 15, 42, 584, and 770. A list of the telephone numbers that comprise the Settlement Class is attached as Exhibit 6 to the Agreement and was filed under seal. The Judge approved the plan of distribution for the Settlement Fund as set forth in the Agreement. The Claims Administrator is ordered to comply with the terms of the Agreement with respect to distribution of Settlement Awards, the Second Distribution and disposition of any Remaining Funds thereafter. Should any Remaining Funds be distributed, he approved NCLC as the cy pres recipients who will receive an equal distribution. He finds the organization is closely aligned with the class' interests. The Judge dismissed the Action, with prejudice, without costs to any party, except as expressly provided for in the Agreement. In the event that the Settlement fails to become effective for any reason, the money remaining in the Settlement Fund (including accrued interest), less expenses and taxes incurred or due and owing and payable from the Settlement Fund in accordance with the Agreement, will be returned to the Defendants within 15 days of the event that causes the Agreement to not become effective. Judge Webber awarded the Class Counsel $1,666,666 for attorney fees and $30,323.94 for reimbursed expenses from the balance of the Settlement Fund, which he finds to be fair and reasonable, and which amount will be paid to the Class Counsel from the Settlement Fund in accordance with the terms of the Agreement. The Class Representatives, as identified in the Preliminary Approval Order, are compensated in the amount of $7,500 each for their efforts in the case. Finally, pursuant Federal Rule of Civil Procedure 42(a)(2) and Local Rule 42-4.03, the actions styled Martinez v. Medicredit, Inc., No. 4:16-cv-1138-ERW (E.D. Mo.), which was previously consolidated with Hornberger v. Medicredit, Inc., No. 4:17-cv- 0409-SNLJ (E.D. Mo.), and Verma v. Memorial Healthcare Group, Inc., et al., No. 4:17-cv-2809-ERW (E.D. Mo.), are formally consolidated nunc pro tunc as of Dec. 4, 2017. A full-text copy of the Court's May 15, 2018 Memorandum and Order is available at https://is.gd/LEpjXs from Leagle.com. Marilynn Martinez, individually and on behalf of all other similarly situated,, Plaintiff, represented by Timothy J. Sostrin, KEOGH LAW, LTD. & Keith J. Keogh, KEOGH LAW, LTD. Rajesh Verma, Plaintiff, represented by Eric W. Kem, THE LAW OFFICES OF ERIC W. KEM, P.A., Robert William Murphy, LAW OFFICE OF ROBERT W. MURPHY & Keith J. Keogh, KEOGH LAW, LTD. Todd Hornberger & Eric Johnson, Consolidated Filer Plaintiffs, represented by Anthony E. LaCroix -- tony@lacroixlawkc.com -- LACROIX LAW FIRM, Michael L. Greenwald -- mgreenwald@gdrlawfirm.com -- GREENWALD DAVIDSON PLLC & Keith J. Keogh, KEOGH LAW, LTD. Medicredit, Inc., a Missouri corporation, Defendant, represented by Maura K. Monaghan -- mkmonaghan@debevoise.com -- DEBEVOISE AND PLIMPTON LLP, Patrick T. McLaughlin -- pmclaughlin@spencerfane.com -- SPENCER FANE LLP, Scott J. Dickenson -- sdickenson@spencerfane.com -- SPENCER FANE LLP & Megan D. Meadows, SPENCER FANE LLP. MICROSOFT CORP: Discrimination Suit Can't Proceed as Class Action ----------------------------------------------------------------- Dina Bass and Margaret Cronin Fisk, writing for Bloomberg News, report that Microsoft Corp. women engineers who claim discrimination in pay and promotions won't be allowed to pursue their lawsuit as a class action, in a major blow to the leading case attacking the male-dominated tech industry. U.S. District Judge James L. Robart issued a sealed order on June 25 denying class certification, without elaborating. The Seattle judge said the ruling won't be made public until both sides tell him what needs to be redacted, or kept private. The denial deals a near-death blow to the lawsuit filed by three women on behalf of a proposed class of more than 8,630 high-level technical specialists. Class-action status would have given the women more leverage in pursuing their claims at trial or seeking a settlement. An appeal is likely. Similar cases are pending against Alphabet Inc.'s Google, Twitter Inc. and Oracle Corp., while Uber Technologies Inc. settled a class action in April. Judge Robart said at a June 11 hearing that the lawsuit had a "fatal" flaw in trying to prove that a uniform Microsoft corporate policy or action adversely affected women, a requirement for class actions. Judge Robart said the women didn't show enough of a common thread in their workplace experience. The standard was set in a 2011 decision by the U.S. Supreme Court in a gender-bias case against Walmart Inc. The Walmart decision has become a roadblock for employee class actions since 2011, with employers citing the ruling and workers' lawyers seeking loopholes. Workers have had some success in asserting more narrowly defined classes than the sprawling, nationwide proposed group of 1.5 million women in the Walmart case, but their victories have been limited. In the bid for group status by the Microsoft women, their lawyers cited recent decisions involving Goldman Sachs Group Inc. and Merrill Lynch unit of Bank of America Corp., which have allowed narrower, more focused classes to be certified. Microsoft argued that the plaintiffs couldn't show intentional discrimination or any company policy that could meet the commonality requirements of a class action. "The judge made the right decision," a Microsoft representative said in an emailed statement. "This case should not be a class action." The company is committed to "increasing diversity and making sure that Microsoft is a workplace where everyone has an equal opportunity to succeed," the representative said. The women's attorneys didn't immediately respond to calls for comment. The case was initially filed in September 2015 on behalf of women engineers and technicians and the proposed class would have included women in those high-level positions from Sept. 16, 2012, to the present. A plaintiffs' expert estimated the pay gap between men and women for those technical and engineering jobs as, conservatively, $100 million, to a more expansive $238 million through May 2016. The plaintiffs also sought damages for lost compensation caused by lack of promotions. The company denies having any policies that would lead to lower pay or prospects for women and insists that it promotes fair treatment. The case is Moussouris v. Microsoft Corp., 15-cv-01483, U.S. District Court, Western District of Washington (Seattle). [GN] MISSOURI: Class Certification Granted in Juvenile Parole Suit ------------------------------------------------------------- Rachel Rice, writing for St. Louis Post-Dispatch, reports that a federal judge has granted class certification to a lawsuit filed in U.S. District Court in November that alleges the Missouri Parole Board is ignoring court rulings that determined that juveniles cannot be sentenced to life without parole. The lawsuit was filed by the MacArthur Justice Center and Husch Blackwell LLP on behalf of offenders who were sentenced in Missouri courts to life without the possibility of parole for crimes they committed as minors. Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland have all served for at least 25 years and have applied for parole, and all were denied, the order to certify the lawsuit states. The lawsuit also represents 80 prisoners in Missouri who face similar circumstances. The order to certify the lawsuit as a class action was signed by U.S. District Court Judge Nanette Laughrey. "We applaud the Court's recognition of the systemic issues in Missouri's parole system as it relates to juvenile offenders," said Amy E. Breihan, an attorney with MacArthur's St. Louis office, in a prepared statement. "This class represents individuals who were sentenced to die behind bars for crimes they allegedly committed as children. Missouri has seemingly denied them justice at every turn, but this decision is a strong step in the right direction." In 2012, the U.S. Supreme Court decided Miller v. Alabama, which disallowed mandatory life without parole prison terms for those under 18 years old. Sentencing someone that young to life without parole violates the 8th Amendment against cruel and unusual punishment, the Supreme Court ruled in a 5-4 decision. It was later determined that the Miller ruling applies retroactively, which would affect dozens of offenders currently incarcerated in Missouri prisons. The lawsuit claims cruel and unusual punishment and deprivation of due process, both in violation of both the U.S. Constitution and the Missouri Constitution. The lawsuit seeks a declaration that the board's policies and procedures fail to comply with Missouri law, and asks for an injunction ordering the board to change how it conducts parole reviews for the offenders in question that provides for "meaningful opportunity for release based on demonstrated maturity." The lawsuit also asks that offenders be allowed to review information presented to the board, to provide expert testimony, to have the ability to cross-examine and to submit statements in writing to the board. [GN] MONTANA: Partial Summary Judgment Ruling in "Duane" Reversed ------------------------------------------------------------ In the case, DUANE C. KOHOUTEK, INC., a Montana Corporation, BUCHER SALES, LLC, a Montana Limited Liability Company, NOBLES, INC., a Montana Corporation, and SPIRITS PLUS, LLC, a Montana Limited Liability Company, individually and on behalf of others similarly situated, Plaintiffs and Appellees, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Defendant and Appellant, Case No. DA 17-0131 (Mont.), Judge Laurie McKinnon of the Supreme Court of Montana reversed the judgment of the District Court granted in part the Storeowners' motion for partial summary judgment on their constitutional claims. Four liquor store owners, Duane C. Kohoutek, Bucher Sales, Nobles, and Spirits Plus ("Storeowners") certified as a class representing similarly situated liquor store owners, sought declaratory and injunctive relief from actions of the State of Montana, Department of Revenue ("DOR") in Montana's Eighth Judicial District Court, Cascade County. Various statutes govern liquor sales in Montana and are administered by DOR. The statute at issue in these proceedings was effective between 1995 and 2016. Pursuant to the statutory scheme, all liquor sales originated in the State-owned, central liquor warehouse (Liquor Warehouse). DOR then sold liquor to certified liquor stores (Agency Liquor Stores). Agency Liquor Stores could only purchase liquor from the Liquor Warehouse and the Liquor Warehouse sold only to Agency Liquor Stores. DOR provided Agency Liquor Stores with three discounts, collectively known as the commission rate, on their purchase of liquor from the Liquor Warehouse. One of those discounts was the weighted average discount ratio ("WADR"), codified in Section 16- 2-101(2)(b)(ii)(B), MCA (repealed 2016). Agency Liquor Stores then, in turn, sold the liquor to individual retail customers as well as to licensed taverns and bars (Licensees). When Agency Liquor Stores sold whole or unbroken cases of liquor, also known as case lots, to Licensees, Section 16-2-201(1), MCA, required them to provide a separate discount (Case Discount). In February 2014, Storeowners filed a complaint seeking declaratory, injunctive, and class-wide relief on behalf of Montana liquor store franchisees who have been programmatically undercompensated by the State for the sale of case-lots of liquor to state liquor licensees. In their complaint, Storeowners described how DOR reimbursed them for mandated discounts based not on the actual discounts given, but upon a ratio of case-lot sales to licensees to overall sales made by each store in fiscal year 1994 resulting in a significant cumulative loss to certain agency liquor store franchisees. The parties jointly moved for class certification. In its certification order, the District Court defined the class as owners of Montana liquor stores which have provided statutorily required discounts on the sale of unbroken case lots of liquor in a greater amount than the State has reimbursed or returned to those store owners. In October 2014, Storeowners moved for partial summary judgment on their constitutional claims. In January 2015, DOR moved to amend its answer to add the defense of statute of limitations. The District Court heard oral argument on the issues and ordered supplemental briefing. In its April 2015 order on summary judgment, the District Court first concluded the purpose of the WADR was to fully reimburse Agency Liquor Stores for the cost of providing the Case Discount to Licensees. It stated that from 1995 to 2013, the statutory scheme remained unchanged and the legislative history evidences a clear intent by the State to reimburse liquor store owners for the statutorily-required case lot discount. The District Court granted Storeowners' motion in part, concluding that the WADR was once reasonable, but its contemporary application violates the class members' equal protection and substantive due process rights under Article II, sections 4 and 17 of the Montana Constitution. It denied Storeowners' motion in part, finding the statute is not an unconstitutional taking of private property under Article II, section 29 of the Montana Constitution. Also in its order on summary judgment, the District Court concluded Storeowners' claims were not barred by laches and denied DOR's motion to amend its answer to add the defense of statute of limitations. The proceeding then entered its damages phase. The District Court concluded that the WADR's reliance on 1994 sales data was unconstitutional beginning on July 1, 1998, when it could have been reviewed like the commission rate discount. The District Court awarded damages of $14,836,178.22. The District Court subsequently concluded DOR was unjustly enriched and added $8,718,803.88 in attorney fees and $11,320,233.43 in interest to the $14,836,178.22 judgment. Both parties appeal. The Court heard oral argument on Feb. 7, 2018. Judge McKinnon restates the dispositive issues on appeal as: (i) whether the District Court erred in determining the WADR violated Storeowners' rights to substantive due process; and (ii) whether the District Court erred in determining the WADR violated Storeowners' rights to equal protection. She finds that the WADR, set forth in Section 16-2- 101(2)(b)(ii)(B), MCA (repealed 2016), was rationally related to the legislative purpose of offsetting some or all of the cost Agency Liquor Stores incurred by providing the Case Discount to Licensees. Neither the WADR's language nor its legislative history support Storeowners' contention that the Legislature intended the WADR to fully reimburse Agency Liquor Stores for the cost of providing the Case Discount. Further, the Judge finds that, whether a store's unbroken case sales grew, stayed the same, or diminished, is sufficiently attributable to that Agency Liquor Store's independent business decisions and renders the classes dissimilar for equal protection purposes. The WADR did not violate Storeowners' rights to substantive due process or equal protection. It was a constitutional part of a statutory scheme designed to privatize liquor stores in Montana. For these reasons, Judge McKinnon reversed the judgment of the District Court. A full-text copy of the Court's May 16, 2018 Opinion is available at https://bit.ly/2t8GfLl from Leagle.com. Daniel J. Whyte, Teresa G. Whitney (argued), Dave Burleigh, Special Assistant Attorneys General, Helena, Montana, for Appellant. Jonathan McDonald (argued), McDonald Law Office, PLLC, Helena, Montana Michael J. George -- mike@georgelaw-mt.com -- Michael J. George, P.C., Great Falls, Montana, for Appellees. NES EQUIPMENT: Court Dismisses ICFA Suit ---------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion to Dismiss the case captioned STATE MECHANICAL SERVICES, LLC, Plaintiff, v. NES EQUIPMENT SERVICES CORPORATION d/b/a NES RENTALS, NES RENTALS HOLDINGS, and UNITED RENTALS (NORTH AMERICA), INC., Defendants, Case No. 17-cv-5950 (N.D. Ill.). Plaintiff Tartan Construction, LLC, alleges that Defendants NES Rentals, NES Holdings, and United Rentals charged two illegitimate fees as part of their standard rental agreements for heavy equipment. The Plaintiff claims that these fees breached the rental agreements, unjustly enriched the Defendants, and violated the Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFA). The Court grants the Defendants' motion to dismiss. The Court grants the motion with prejudice as to the environmental fee portions of Counts One and Three. The Court grants the motion without prejudice as to the other portions of Counts One and Three, and as to Counts Two and Four. The Plaintiff may replead the claims dismissed without prejudice if it can do so consistent with its obligations under Federal Rule of Civil Procedure 11; failure to correct the deficiencies identified here may result in dismissal with prejudice. Count One: Breach of Contract The Plaintiff claims that NES Rentals and United Rentals breached their contracts with the Plaintiff and other proposed class members by: (1) charging an environmental fee completely untethered to the actual costs of disposing of waste fluids from rented equipment; and (2) charging a fee for the LDW when the fee bears no relation to the risk of loss or damage to the equipment and the alleged waiver does not offer any value to customers who pay for it. To state a breach of contract claim, the Plaintiff must allege that: (1) the parties have a valid and enforceable contract; (2) the Plaintiff performed under the contract; (3) the Defendants failed to comply with a duty imposed by the contract; and (4) that failure to comply injured the Plaintiff. Environmental Fee The Defendants argue that the Plaintiff's claim fails as to the environmental fee because the rental agreement does not say that the fee corresponds to their costs for handling waste fluids. This Court agrees. Section 18 of the rental agreement defines the environmental fee, stating: "Customer acknowledges that it shall be charged a per item, per invoice environmental fee for the handling and disposal of waste oil and other fluids used in connection with the operation and/or cleaning of the Equipment." Even if the environmental fee has no connection to the Defendants' environmental costs, the Defendants did not breach any contractual duty by charging the fee. This Court dismisses Count One with prejudice as to the environmental fee allegations. LDW Fee The Defendants argue that the Plaintiff's claim fails as to the LDW fee because the Plaintiff fails to allege any damages resulting from the alleged breach. This Court agrees that the claim fails, although for a different reason. The rental agreement's only mention of the LDW says: "Customer acknowledges that the Company's LDW policy was explained at the time of entering into this Agreement. A copy of the policy is available at all branches of the Company and is available upon request. Customer acknowledges that it is responsible for the Equipment and that any LDW entered into is not insurance." Even if the Defendants breached that duty by not making the policy available, the Plaintiff does not allege any damages arising from that specific breach. Without alleging an injury, the Plaintiff fails to state a claim for breach of contract. This Court dismisses Count One without prejudice as to the LDW fee allegations. Counts Two and Three: Unjust Enrichment To state a claim for unjust enrichment, the Plaintiff must allege that the Defendants unjustly retained a benefit to the Plaintiff's detriment, and that the Defendants violate fundamental principles of justice, equity, and good conscience by keeping the benefit. Environmental Fee Under Illinois law, an unjust enrichment claim fails when the claim rests on the breach of an express contract. The claim against NES Holdings, NES Rental's parent company fails because Plaintiff makes no specific allegations of unjust enrichment against NES Holdings. In other words, the Plaintiff seeks to make NES Holdings liable as NES Rental's parent corporation. A parent corporation may be liable for a subsidiary's actions if the parent exercises enough control and direction over the subsidiary that a court may properly pierce the parent's corporate veil. But when the subsidiary has no liability, the parent also has no liability. Accordingly, this Court dismisses Count Three with prejudice to the extent the Plaintiff's theory of liability depends upon the environmental fee. LDW Fee Here, the Plaintiff's unjust enrichment claim depends upon the same conduct that forms the basis of its ICFA claim: the misrepresentations that allegedly deceived the Plaintiff as to the true nature of the fees and made it unjust for Defendants to retain the money they collected for those fees. Considering Cleary and its progeny, this Court likewise ties the fate of the Plaintiff's unjust enrichment claim to the Plaintiff's ICFA claim. Thus, this Court dismisses Count Two, and dismisses Count Three as to the LDW fee. Count Four: ICFA The Plaintiff claims that Defendants violated the ICFA by deceiving customers as to the true nature of both the environmental fee and the LDW fee. To state a claim under the IFCA, the Plaintiff must allege with enough specificity to satisfy Rule 9(b) that: (1) the defendant carried out deceptive business practices; (2) the defendant intended that Plaintiff rely on its deception; (3) the deception occurred in commerce; (4) the Plaintiff suffered actual damage; and (5) the defendant's deception proximally caused the Plaintiff's damage. Here, the Plaintiff's ICFA claim fails because the Plaintiff does not allege the "who, what, when, where, and how of the fraud" with the requisite particularity the Plaintiff alleges that the Defendants made numerous misrepresentations about the environmental and LDW fees but each allegation implicates the Defendants as a group. To satisfy Rule 9(b) in this case which alleges a fraud based upon a misrepresentation theory. The Plaintiff would need to specifically allege who made the misrepresentation, the time, place, and content of the misrepresentation and how a defendant communicated the misrepresentation. A full-text copy of the District Court's May 14, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y74vzh3j from Leagle.com. Tartan Construction, LLC, Plaintiff, represented by Robert M. Foote -- rmf@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil LLC, Glenn Alexander McTavish -- amctavish@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil & Matthew J. Herman -- mjh@fmcolaw.com -- Foote, Mielke, Chavez & O'Neil LLC. Tartan Construction, LLC, individually and on behalf of a class of similarly situated individuals, Plaintiff, represented by Robert M. Foote, Foote, Mielke, Chavez & O'Neil LLC. NES Equipment Services Corporation, doing business as NES Rentals, NES Rentals Holdings & United Rentals (North America), Inc., Defendants, represented by Matthew R. Devine -- mdevine@jenner.com -- Jenner & Block LLP, Abraham Michael Salander -- asalander@jenner.com -- Jenner & Block, Elizabeth D. Adler -- eadler@kslaw.com -- King & Spalding Llp, pro hac vice, Precious Stephanie Jacobs -- pjacobs@jenner.com -- Jenner And Block LLP & S. Stewart Haskins, II -- shaskins@kslaw.com -- King & Spalding, pro hac vice. NEWELL BRANDS: Faces Bucks County Securities Suit in New Jersey --------------------------------------------------------------- Bucks County Employees Retirement Fund, individually and on behalf of all others similarly situated v. Newell Brands Inc., Michael B. Polk, Ralph J. Nicoletti, and James L. Cunningham, III, Case No. 2:18-cv-10878 (D. N.J., June 21, 2018), seeks to pursue remedies under the Securities Exchange Act of 1934. This is a federal securities class action on behalf of purchasers of Newell Brands common shares between February 6, 2017 and January 24, 2018 inclusive. The Plaintiff Bucks County Employees Retirement Fund purchased Newell Brands common stock during the Class Period and has been damaged by the alleged false and misleading statements issued by the Defendants, says the complaint. The Defendant Newell Brands is a global manufacturer and marketer of name brand consumer products. The Company maintains its headquarters in Hoboken, New Jersey and its common stock trades on the NYSE under the symbol NWL. The Defendant Michael B. Polk served, at all relevant times, as Chief Executive Officer and a Director of Newell Brands. The Defendant Ralph J. Nicoletti served, at all relevant times, as Executive Vice President and Chief Financial Officer of Newell Brands. [BN] The Plaintiff is represented by: James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & ANGELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Tel: (973) 944-1700 - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: (631) 367-7100 NEWELL BRANDS: Faruqi Law Firm Files Securities Class Action ------------------------------------------------------------ Faruqi & Faruqi, LLP, a national securities law firm, reminds investors in Newell Brands, Inc. ("Newell" or the "Company") (NYSE:NWL) of the August 20, 2018 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. If you invested in Newell stock or options between February 6, 2017 and January 24, 2018 and would like to discuss your legal rights, click here: www.faruqilaw.com/NWL. There is no cost or obligation to you. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com. CONTACT: FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Attn: Richard Gonnello, Esq. rgonnello@faruqilaw.com Telephone: (877) 247-4292 or (212) 983-9330 The lawsuit has been filed in the U.S. District Court for the District of New Jersey on behalf of all those who purchased Newell common stock between February 6, 2017 and January 24, 2018 (the "Class Period"). The case, Bucks County Employees Retirement Fund v. Newell Brands, Inc. et al, No. 18-cv-10878 was filed on June 21, 2018, and has been assigned to Judge Katharine Sweeney Hayden. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and misleading statements and/or failing to disclose that: (1) the Company's retail channel was loaded with extremely high levels of unsold Newell product; (2) contrary to the Company's representations, the build-up of Newell inventory in the retail channel was due to Company-specific rather than macroeconomic reasons; (3) as a result of the unusually high levels of unsold inventory in the retail channel, Newell was exposed to a heightened risk that it would experience slower sales growth in future periods; and (4) undisclosed managerial and cultural differences in the legacy Newell and Jarden businesses had created significant internal discord that was having a material adverse effect on the Company's operating performance. Specifically, on November 2, 2017, Newell announced disappointing third quarter 2017 financial results. During the related earnings call, Newell executives disclosed that the Company's materially lower core sales growth were due to "retailers pulling back on order rates and rebalance inventories" to help clear the known, but previously undisclosed build-up of Newell inventory in the retail channel. On this news, the price of Newell's common stock fell from a closing price of $41.00 on November 1, 2017 to $30.01 on November 2, 2017 -- a $10.99 or 26.80% drop. Then, on January 25, 2018, Newell announced its 2017 financial results. The Company stated that it anticipated 2017 core sales growth of approximately 0.8% versus previous guidance of 1.5% to 2.0% (implying negative 2.0% organic sales growth during the 2017 fourth quarter), due, in part, to continued retailer inventory destocking. The Company also announced it was exploring "strategic options" to significantly restructure its business by divesting industrial and commercial assets, which was expected to result in a 50% reduction in both the Company's customer base and its global factory and warehouse footprint. The same day, Newell announced that three members of its Board of Directors had resigned. On this news, the price of Newell common stock fell from a closing price of $31.23 on January 24, 2018 to $24.81 on January 25, 2018 -- a $6.42 or 20.66% drop. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP -- http://www.faruqilaw.com-- also encourages anyone with information regarding Newell's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] NISSAN NORTH: Court Narrows Claims in "Falk" Suit ------------------------------------------------- In the case, MICHELLE FALK, et al., Plaintiffs, v. NISSAN NORTH AMERICA, INC., Defendant, Case No. 17-cv-04871-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendant's motion to dismiss the amended complaint. The Plaintiffs in the action claim that the Defendant's Nissan Sentras for model years 2013 to present have defective continuously variable transmissions ("CVT"). They contend that the CVTs are defective in design, materials, and/or workmanship. These defective CVTs, the Plaintiffs contend, cause sudden, unexpected shaking and violent jerking when drivers attempt to accelerate class vehicles; hesitation before responding to a driver's input on the accelerator pedal, which prevents the class vehicles from accelerating as intended by the driver; as well as complete transmission failure. The Plaintiffs state that this transmission defect creates unreasonably dangerous situations while driving and increases the risk of a crash, and that the Defendant continues to lease and sell its vehicles, despite knowing about this defect. The Plaintiffs allege that, within a year of selling the first allegedly defective vehicle, the Defendant acknowledged the defect in its Technical Service Bulletins ("TSB"). The Defendant proposed that technicians reprogram the Engine Control Module and the Transmission Control Module. Despite these proposed fixes, the Plaintiffs claim that consumers have continued to submit complaints to both the National Highway Traffic Safety Administration and the Defendant. The Named Plaintiffs Falk of California, Indhu Jayavelu of Ohio, Patricia L. Cruz of New York, Danielle Trotter of Colorado, Cynthia Garrison of Massachusetts, and Amanda Macri of Illinois asked the Defendant to repair the defect, but they state that the Defendant either did not or could not. In response, the Plaintiffs filed the putative class action on Aug. 22, 2017, asserting claims on behalf of themselves and all others similarly situated, for violations of California, Colorado, Illinois, Massachusetts, New York, and Ohio consumer protection laws, as well as the Magnuson-Moss Warranty Act. They then amended the complaint on Sept. 27, 2017. They seek to represent a nationwide class of persons who purchased and/or leased in the United States a model year 2013- 2017 Nissan Sentra equipped with a CVT. They also intend to seek certification of subclasses of purchasers in California, Colorado, Illinois, Massachusetts, New York, and Ohio. The Defendant moves to dismiss the amended complaint, challenging several of the Plaintiffs' 15 causes of action: (i)Express Warranty (Count 1); (ii) Implied Warranty (Count 2); (iii) Magnuson-Moss Act (Count 3); (iv) Statute of Limitations (Counts 1-3, 9); (v) State Consumer Protection Acts (Counts 7-10); and (vi) Unjust Enrichment and Remedies. Judge Gilliam granted without leave to amend the Defendant's motion to dismiss as to (i) Plaintiff Macri's breach of implied warranty claim; (ii) Plaintiff Jayavelu's breach of implied warranty claim, to the extent based on the UCC; and (iii) all the Plaintiffs' claims for equitable relief. The Judge granted with leave to amend as to the (i) the Plaintiffs' claims for unjust enrichment; and (ii) Plaintiff Jayavelu's Ohio CSPA class action allegations. He denied the Defendant's motion to dismiss as to all remaining claims. He granted the Plaintiff's request for leave to amend Plaintiff Jayavelu's breach of implied warranty claim to plead a tort claim. Any amended complaint must be filed within 21 days of the date of the Order. The amended complaint may not add new causes of action or Plaintiffs, and the scope of leave to amend extends only to the claims identified. Judge Gilliam has found, among other things, that because the Plaintiffs have sufficiently pled claims that provide for damages, including those for breach of express warranty and violation of the Magnuson-Moss Act, he finds that the Plaintiffs have an adequate remedy at law, and consequently are barred from seeking equitable relief. Plaintiff Garrison has also sufficiently alleged an injury that is distinct from the Defendant's alleged deception, due to the transmission problems that actually manifested in her vehicle. And because Plaintiff Jayavelu does not satisfy the requirements of Ohio Rev. Code Section 1345.09(B), he is precluded from advancing an Ohio CSPA claim on behalf of a class. With respect to the breach of warranty claims, Plaintiff Trotter's equitable tolling claim presents sufficient facts to support a cognizable legal theory. The Judge cannot find as a matter of law that Plaintiff Trotter's claim under the Colorado Consumer Protection Act is barred by the statute of limitations. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2la0rcd from Leagle.com. Michelle Falk, Plaintiff, represented by Shimon Yiftach -- shimony@bgandg.com -- Bronstein Gewirtz & Grossman, Gary S. Graifman -- ggraifman@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C., Gary E. Mason -- gmason@wbmllp.com -- Whitfield Bryson & Mason LLP, Jason Samual Rathod -- jrathod@classlawdc.com -- Migliaccio and Rathod LLP, Jay I. Brody -- jbrody@kgglaw.com - - Kantrowitz, Goldhamer and Graifman, P.C., Jeffrey Laurence Osterwise -- josterwise@bm.net -- Berger and Montague P.C., Jennifer Shari Goldstein -- jgoldstein@wbmllp.com -- Whifield Bryson and Mason, LLP, Lawrence Deutsch -- ldeutsch@bm.net -- Berger and Montague P.C. & Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- Migliaccio & Rathod. Indhu Jayavelu, Patricia L. Cruz, Danielle Trotter, Amanda Macri, individually and on behalf of all others similarly situated & Cynthia Garrison, Plaintiffs, represented by Shimon Yiftach, Bronstein Gewirtz & Grossman, Gary S. Graifman, Kantrowitz Goldhamer & Graifman, P.C., Gary E. Mason, Whitfield Bryson & Mason LLP, Jason Samual Rathod, Migliaccio and Rathod LLP, Jay I. Brody, Kantrowitz, Goldhamer and Graifman, P.C., Jeffrey Laurence Osterwise, Berger and Montague P.C., Lawrence Deutsch, Berger and Montague P.C. & Nicholas A. Migliaccio, Migliaccio & Rathod. Nissan North America, Inc., Defendant, represented by E. Paul Cauley, Jr. -- paul.cauley@dbr.com -- Drinker Biddle & Reath, LLP, Marshall Lee Benjamin Baker -- marshall.baker@dbr.com -- Drinker Biddle Reath LLP & Michael James Stortz -- michael.stortz@dbr.com -- Drinker Biddle & Reath LLP. NUTRACEUTICAL CORP: SCOTUS to Take Up Decertification Challenge --------------------------------------------------------------- Emily Field, writing for Law360, reports that the U.S. Supreme Court on June 25 decided to take up a petition challenging a Ninth Circuit decision that reversed an order decertifying a class of buyers alleging that Nutraceutical Corp. falsely advertised its Cobra Sexual Energy "aphrodisiac" supplement. As is customary, the high court did not indicate why it chose to grant the dietary supplement company's February petition for certiorari. The company had argued that the Ninth Circuit erred in reviving the class action because named plaintiff Troy Lambert missed a 14-day deadline appealing the decertification. The case is Nutraceutical Corporation, Petitioner v. Troy Lambert, Case No. 17-1094 (U.S.). The case was filed February 5, 2018. [GN] OCEAN HARBOR: Settles Automobile Accident Insurance Class Action ---------------------------------------------------------------- MSP Recovery, LLC, on June 25 disclosed that a proposed settlement has been reached in the class action lawsuit MSPA Claims 1, LLC v. Ocean Harbor Casualty Insurance Company. If you paid for or were responsible as a full or partial risk entity for medical expenses of a Medicare Part C enrollee who was injured in an automobile accident and was insured by Ocean Harbor, your legal rights may be affected. For more details on the class action and settlement along with dates to file a claim form, exclude yourself from the case, object to the settlement, or attend the next hearing go to www.MSPRecovery.com/OceanHarbor or call 305-398-0990. [GN] ORION INT'L: "Ascencio" Class Cert. Denial Partly Affirmed ---------------------------------------------------------- In the case, NISSA ASCENCIO AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs and Appellants, v. ORION INTERNATIONAL CORP., Defendant, Appellee and Cross-Appellant, Case No. DA 17-0353 (Mont.), Judge James Jeremiah Shea of the Supreme Court of Montana affirmed in part the denial of Ascencio's motion for class certification by the Fourth Judicial District Court, Missoula County. Orion was a small, family-owned Montana business that performed background checks on prospective employees at the request of employers. Its principals were Donald and Patricia Whitney. Their son Kyle Whitney handled daily business operations. In 2012, Ascencio applied for a job with St. Luke's Hospital in Polson. St. Luke's retained Orion to perform a background check of Ascencio. The background check Orion provided to St. Luke's included "obsolete information," the inclusion of which was prohibited by Section 31-3-112, MCA. The obsolete information consisted of Ascencio's criminal history that reflected a 1997 arrest for forgery that resulted in two misdemeanor convictions in 1998. St. Luke's hired Ascencio, and she worked there for approximately two years. In 2015, Ascencio applied for a job with Missoula Bone and Joint. On May 20, 2015, Missoula Bone and Joint hired Ascencio, then retained Orion to perform a background check on her the following day. Again, the background check Orion provided to Ascencio's employer contained prohibited obsolete information, including the two 1998-misdemeanor forgery convictions as well as a Chapter 7 bankruptcy filing that was discharged in 2000. Ascencio called Orion to ask why it would be releasing illegal background checks to a prospective employer in violation of Section 31-3-112, MCA, that prohibits the disclosure of such obsolete information by reporting agencies. Kyle Whitney, the Orion employee with whom Ascencio spoke, responded that he would contact Orion's attorney. On June 9, 2015, Orion issued a corrected background check of Ascencio to Missoula Bone and Joint. Missoula Bone and Joint terminated Ascencio at the conclusion of her six-month probationary period, noting concerns with her background check and credit report, as well as requests for time off, not reporting when she left work early, and personality conflicts with a co-worker. On Sept. 23, 2015, Ascencio filed suit against Orion, asserting claims in her individual capacity, as well as a claim for class action. On Oct. 29, 2015, Orion filed a Motion to Dismiss which the District Court denied on Dec. 13, 2016. On Jan. 25, 2017, Orion responded to Ascencio's first discovery requests, which included a list of individuals for whom Orion prepared background checks or other consumer reports. Ascencio identified at least 360 instances on this list in which Orion's reports contained obsolete information in violation of Section 31-3-112, MCA. On Feb. 1, 2017, Ascencio moved to certify the class. Ascencio attached Orion's list with 360 names circled, defining the class as all persons in the state of Montana who had background or consumer reports generated by Orion International which contained obsolete information as defined under MCA Section 31-3-112, from Sept. 22, 2013 to present. Ascencio argued the violations of Title 31, chapter 3, MCA, are common to all the Plaintiffs and so similar that the illegality of all these provisions can be decided at one time in one proceeding rather than burdening the District Court with hundreds of separate cases. On March 24, 2017, the District Court denied Ascencio's motion to certify the class, determining that Ascencio met all four of the M. R. Civ. P. 23(a) prerequisites but failed to establish predominance and superiority, as required by M. R. Civ. P. 23(b)(3). It noted that Ascencio failed to provide evidence to support factual assertions in her briefing specifically related to the superiority issue and Orion's status as a business, which Ascencio claimed had changed and Orion had ceased operating as a Montana corporation and its principals had moved to Florida. On April 19, 2017, Ascencio moved to alter or amend the order denying class certification, asserting the District Court made a mistake of fact regarding Orion's status. She attached as an exhibit Orion's discovery responses from Orion's Feb. 7, 2017 Defendant's Responses to Ascencio's Second Discovery Requests in which answers acknowledge Orion ceased business operations and its principals moved to Florida. On June 8, 2017, the District Court denied Ascencio's motion to alter or amend. Ascencio appeals the District Court's denials of her Motion to Certify the Class and her Motion to Alter or Amend Order. Orion cross-appeals, arguing that the District Court correctly denied class certification on M. R. Civ. P. 23(b)(3) grounds, but that it erred in its determination that Ascencio satisfied the M. R. Civ. P. 23(a) prerequisites. Judge Shea finds that Ascencio failed to both support her allegations with evidence and demonstrate why prosecuting the case as a class action is superior to individual actions. The record before the District Court at the time it ruled on Ascencio's Motion to Certify Class was devoid of any evidence to support her superiority argument. Because certification requires at least some evidence to satisfy each of M. R. Civ. P. 23's requirements, the Judge holds that the District Court did not abuse its discretion in denying class certification based on Ascencio's failure to prove superiority with at least some evidence of an assertion she deemed quintessential to her argument. Moreover, Ascencio failed to articulate why it would be difficult for individual claimants to pursue their claims separately and why this class action is the superior method. According to the Judge, Ascencio asserted to the District Court -- without citation to legal authority or her own attachments -- that, even if potential "class members wanted to bring claims on their own, they could not," and that class members have "absolutely no recourse" alternative to this class action. He says Ascencio's argument rests on the implication that the putative class members' claims would result in only small recoveries that would preclude bringing individual claims unless their resources are pooled. Again, however, Ascencio offers nothing but bald assertions as to the potential recoveries of the other potential class members. Based on the record as it is currently developed, Judge Shea cannot conclude that the District Court erred by finding that Ascencio failed to meet the superiority requirement of M. R. Civ. P. 26(b)(3). The order of the District Court is affirmed and the case is remanded for further proceedings consistent with the Opinion. A full-text copy of the Court's May 15, 2018 Opinion is available at https://is.gd/Uy5LoR from Leagle.com. Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana, for Appellants. Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP, Missoula, Montana, for Appellee. PARALLON ENTERPRISES: "Buford" Sues Over Unpaid OT Wages -------------------------------------------------------- Laura Buford, on behalf of himself and others similarly situated, Plaintiff, v. Parallon Enterprises and Does 1 to 100, Inclusive,, Defendants, Case No. RG18904309 (Cal. Super., May 10, 2018), seeks redress for failure to provide meal periods, rest periods, minimum wages, overtime, complete and accurate wage statements and waiting time penalties for unpaid wages due upon termination and in violation of the California Labor Code, California Business and Professions Code, including declaratory relief, damages, penalties, equitable relief, costs and attorneys' fees. Parallon Enterprises -- https://www.parallon.com/about-us -- provides business and operational services for the healthcare industry where Plaintiff worked for Defendants through 2015 as a traveling healthcare professional in various hospitals in Northern California. [BN] Plaintiff is represented by: Michael R. Crosner, Esq. Zachary M. Crosner, Esq. Alfredo Nava, Esq. CROSNER LEGAL, PC 433 N. Camden Dr., Ste. 400 Beverly Hills, CA 90210 Tel: (310) 496-4818 Fax: (310)510-6429 Email: mike@crosnerlegal.com zach@crosnerlegal.com alfredo@crosnerlegal.com PEOPLES UNITED: Court Grants Bid to Dismiss "Daccache" RICO Suit ---------------------------------------------------------------- In the case, ALEXANDRE DACCACHE, on behalf of himself and all others similarly situated, Plaintiffs, v. ARIEL QUIROS; PEOPLE'S UNITED FINANCIAL, INC.; and PEOPLE'S UNITED BANK, Defendants, Case No. 16-21575-CIV-MORENO (S.D. Fla.), Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida, Miami Division, granted the Defendants' Motions to Dismiss the Amended Complaint. The Plaintiffs are all natural persons, over the age of 21, who allegedly sustained damage as a result of their investments in the Ponzi scheme. Defendant Raymond James & Associates, Inc. is a corporation organized in Florida, with its principal place of business in St. Petersburg, Florida. Defendant People's United Financial is a financial services company. People's United Financial acquired the Chittenden Corp., the bank holding company for the Chittenden Trust Co., which at the time of the acquisition, acted as the escrow agent for the investor funds for the EB-5 projects. Defendant People's United Bank is a federally chartered savings bank headquartered in Bridgeport, Connecticut, and is a subsidiary of People's United Financial. The Plaintiffs submit that in July 2008, the Board of Directors of People's United Financial and the Board of Directors of People's United Bank approved a plan to consolidate the acquired Chittenden entities into People's United Bank. Defendant Quiros is a natural person residing in Florida. Defendant Stenger is the Director, President, and CEO of Jay Peak, Inc, and resides in Vermont. Finally, Defendant Burstein resides in Florida and is the Miami Branch Manager and Vice President of Investments for the Raymond James South Florida Complex The Plaintiffs' claims stem from their investments in a series of related projects at the Jay Peak and Q Burke ski resorts in Vermont. They allege that Jay Peak was owned and operated by Mont Saint-Sauveur International, Inc. from 1978 until mid-2008. Quiros and Stenger allegedly negotiated with Mont Saint-Sauveur to acquire and further develop Jay Peak in 2007. They then raised funds to develop Jay Peak through the EB-5 Immigrant Investor Program. The Plaintiffs allege that in 2008, Quiros, Burstein, and Amigo (Burstein's supervisor), met to discuss a financial structure for the limited partnerships they planned to implement to raise capital for the EB-5 projects. As a result, they submit that Raymond James agreed that investor funds would be transferred from escrow accounts at People's Bank to accounts at Raymond James, over which Quiros would have exclusive authority. The Plaintiffs allege that despite knowing the investor money could not be used to purchase Jay Peak, Inc., Quiros -- with the assistance of Stenger, Burstein, and Raymond James -- through Q Resorts, used $21.9 million of investor funds ($12.4 million from Phase I and $9.5 million from Phase II) to fund the vast majority of the purchase of Jay Peak, Inc. The Plaintiffs submit that nothing in the limited partnership agreements permitted Quiros to use the investor funds to buy Jay Peak, Inc. They further allege that Quiros's misuse of investor funds permeated through each of the EB-5 projects at issue. The Plaintiffs submit that Stenger violated terms of the applicable limited partnership agreements and breached his fiduciary duty as general partner to the investors in the limited partnerships each time he transferred the funds. They also maintain that Quiros's establishment of the margin loans violated the terms of the limited partnership agreements because the agreements prohibited general partners from encumbering or pledging investor funds as collateral without investor approval. Lastly, they allege that Quiros and Stenger commingled Phase I investor monies with funds from other limited partnerships. On Aug. 9, 2016, the Plaintiffs filed an Amended Complaint against Defendants Raymond James & Associates, Inc., People's United Financial, People's United Bank, Quiros, William Stenger, and Joel Burstein. The Defendants that remain are Quiros, People's United Bank, and People's United Financial. The Amended Complaint includes causes of action for: common law fraud against Quiros (Count I); aiding and abetting common law fraud against People's Bank (Count III); aiding and abetting breach of fiduciary duty against Quiros (Count IV); aiding and abetting breach of fiduciary duty against People's Bank (Count VI); civil conspiracy against Quiros and People's Bank (Count VII); negligence against People's Bank (Count IX); breach of fiduciary duty against People's Bank (Count X); breach of contract against People's Bank (Count XI); Florida's Racketeer Influenced and Corrupt Organizations Act against Quiros (Count XII); conspiracy to violate Florida's Civil Racketeer Influenced and Corrupt Organizations Act against Quiros (Count XIII). Defendants Quiros, People's United Financial, Inc., and People's United Bank, N.A. move to dismiss the Amended Complaint. Quiros makes 10 arguments in his Motion to Dismiss Counts I, IV, VII, XII, and XIII of the Amended Complaint: (1) the Plaintiffs do not allege a Ponzi scheme; (2) they lack standing to bring derivative claims; (3) the Plaintiffs have not alleged investment injury for Phases I-V of the alleged Ponzi scheme; (4) they cannot bring claims on behalf of limited partnerships in which they did not invest; (5) their claims against Quiros fail because they are breach of contract claims disguised as tort claims; (6) the Plaintiffs have not pled falsity of offering documents with requisite particularity as required by Federal Rule of Civil Procedure 9(b); (7) Aiding and Abetting Breach of Fiduciary Duty (Count IV) fails because the Plaintiffs do not allege that Quiros owed a fiduciary duty to investors or that he had knowledge of the purported fiduciary duties at issue; (8) Civil Conspiracy (Count VII) fails because the Plaintiffs have not alleged an actual agreement by the alleged co-conspirators; (9) Racketeer Influenced and Corrupt Organizations Act claims (Counts XII and XIII) fail because the Plaintiffs have not adequately pleaded criminal wrongdoing and they've not sufficiently alleged Quiros's participation in a pattern of racketeering activity; and (10) the statutes of limitation bar claims for aiding and abetting breach of fiduciary duty and civil conspiracy (Counts IV and VII). Judge Moreno concludes that the Plaintiffs lack standing to sue Quiros because their claims are derivative under Florida law as they have not sufficiently alleged an injury separate and distinct from other investors. Additionally, the Court lacks personal jurisdiction over the Peoples' Defendants because the Plaintiffs failed to meet their burden in rebutting the Peoples' Defendants affidavits, but even if they had, exercising personal jurisdiction over them would not comport with the Due Process Clause. Accordingly, the Judge granted the Defendants' Motion to Dismiss and dismissed the Amended Complaint against the remaining Defendants. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/pgAOi2 from Leagle.com. Alexandre Daccache, Plaintiff, represented by Adam E. Polk -- aep@girardgibbs.com -- Girard Gibbs, LLP, pro hac vice, Angelica M. Ornelas -- amo@girardgibbs.com -- Girard Gibbs LLP, pro hac vice, Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP, pro hac vice, Detra Shaw-Wilder -- dps@kttlaw.com -- Kozyak Tropin & Throckmorton, Dyanne Elyce Feinberg -- def@kttlaw.com -- Kozyak Tropin & Throckmorton, P.A., Harley Shepard Tropin -- hst@kttlaw.com -- Kozyak Tropin & Throckmorton, Kathleen M. Donovan-Maher -- kdonovanmaher@bermantabacco.com -- Berman DeValerio, pro hac vice, Maia Aron -- ma@kttlaw.com -- Kozyak Tropin & Throckmorton, P.A., Nathaniel L. Orenstein -- norenstein@bermantabacco.com -- Berman DeValerio, pro hac vice, Rachel Sullivan -- rs@kttlaw.com -- Kozyak, Tropin & Throckmorton, P.A., Steven J. Buttacavoli -- sbuttacavoli@bermantabacco.com -- Berman DeValerio, pro hac vice, Tal J. Lifshitz -- tjl@kttlaw.com -- Kozyak Tropin Throckmorton, Paul Aiello, Bennett Aiello & Thomas A. Tucker Ronzetti, Kozyak Tropin & Throckmorton. Carlos Enrique Hiller Sanchez, Plaintiff, represented by Adam E. Polk, Girard Gibbs, LLP, pro hac vice, Angelica M. Ornelas, Girard Gibbs LLP, pro hac vice, Daniel C. Girard, Girard Gibbs LLP, pro hac vice, Detra Shaw-Wilder , Kozyak Tropin & Throckmorton, Kathleen M. Donovan-Maher, Berman DeValerio, pro hac vice, Nathaniel L. Orenstein, Berman DeValerio, pro hac vice, Rachel Sullivan, Kozyak, Tropin & Throckmorton, P.A., Steven J. Buttacavoli, Berman DeValerio, pro hac vice, Thomas A. Tucker Ronzetti, Kozyak Tropin & Throckmorton, Jeremy Robert Kreines, Bennett Aiello, Maia Aron, Kozyak Tropin & Throckmorton, P.A., Michael Paul Bennett, Bennett Aiello, Paul Aiello, Bennett Aiello & Harley Shepard Tropin, Kozyak Tropin & Throckmorton. Lorne Morris, Johannes Eijmberts, Jose R. Casseres-Pinto, Phillip Calderwood, James B. Shaw, Jose Antonio Pietri & Tongyi Wang, Plaintiffs, represented by Adam E. Polk, Girard Gibbs, LLP, pro hac vice, Angelica M. Ornelas, Girard Gibbs LLP, pro hac vice, Daniel C. Girard, Girard Gibbs LLP, pro hac vice, Detra Shaw- Wilder , Kozyak Tropin & Throckmorton, Kathleen M. Donovan-Maher, Berman DeValerio, pro hac vice, Nathaniel L. Orenstein, Berman DeValerio, pro hac vice, Rachel Sullivan, Kozyak, Tropin & Throckmorton, P.A., Steven J. Buttacavoli, Berman DeValerio, pro hac vice, Thomas A. Tucker Ronzetti, Kozyak Tropin & Throckmorton, Jeremy Robert Kreines, Bennett Aiello, Maia Aron, Kozyak Tropin & Throckmorton, P.A., Michael Paul Bennett, Bennett Aiello, Paul Aiello, Bennett Aiello & Harley Shepard Tropin, Kozyak Tropin & Throckmorton Ariel Quiros, Defendant, represented by Melissa Damian Visconti, Damian & Valori, LLP & Melanie Emmons Damian, Damian & Valori LLP. William Stenger, Defendant, pro se. People's United Financial, Inc., as successor-in-interest to Chittenden Trust Company & People's United Bank, Defendants, represented by James J. Stricker -- jstricker@kasowitz.com -- Kasowitz, Benson, Torres & Friedman, LLP, pro hac vice, Lauren Tabaksblat -- ltabaksblat@kasowitz.com -- Kasowitz, Benson, Torres & Friedman LLP, pro hac vice, Jonathan Eric Minsker -- jminsker@kasowitz.com -- Kasowitz Benson Torres LLP & Maria Helena Ruiz -- mruiz@kasowitz.com -- Kasowitz Benson Torres LLP. PETROBRAS BRASILEIRO: Court Approves Class Action Settlement ------------------------------------------------------------ Ana Mano, writing for Reuters, report that Brazil's state-run oil company, Petroleo Brasileiro SA, said on June 25 a New York federal court approved a deal to settle a U.S. corruption class action lawsuit. Petrobras, as the company is known, agreed in January to pay $2.95 billion to end the U.S. lawsuit in what was said to be one of the biggest such payouts in the United States by a foreign entity. The settlement terms were approved on June 22 by the U.S. court, the company said in a securities filing. The court approval may be appealed at a higher court, said Petrobras, adding the settlement does not constitute admission of any wrongdoing in connection with a corruption investigation in Brazil known as "Car Wash." The settlement is seen an important milestone for company as it emerges from the scandal, which has entangled two former Brazilian presidents and dozens of the country's corporate executives. The Car Wash investigation began in early 2014 and has led to an unprecedented fight against entrenched political corruption in Brazil. The probe has uncovered billions of dollars in bribes paid by major construction companies to politicians and executives at state-run enterprises such Petrobras in return for lucrative contracts. [GN] PETROBRAS BRASILEIRO: Judge Orders Atty to Cut Legal Fees --------------------------------------------------------- Kelly Swanson, writing for Global Investigations Review, reports that in ordering class action lawyers who sued Petrobras for its part in a Brazilian bribery scandal to significantly reduce their legal fees, District Judge Jed Rakoff highlighted some peculiar billing practices. [GN] RENT-A-CENTER INC: "Beaton" Remanded to Missouri State Court ------------------------------------------------------------ In the case, SADE BEATON, individually and on behalf of all others similarly situated, Plaintiffs, v. RENT-A-CENTER, INC., Defendant (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiffs' Motion To Remand; and denied without prejudice the Defendant's Motion to Compel Individual Arbitration and Stay Litigation. On Dec. 6, 2017, Williams filed a Class Action Petition styled Myra Williams v. Rent-A-Center, Inc., Case No. 1722-CC11893, in the Circuit Court of the City of St. Louis, against Defendant Rent-A-Center ("RAC"). The petition was later amended to add Sade Beaton as a named Plaintiff in the case. RAC is in the business of leasing household goods such as furniture and appliances; the Plaintiff and the putative class members are current or former customers of RAC. According to the Plaintiffs, RAC regularly uses court process to collect on lease agreements it asserts are in default. In Count I of the amended petition, the Plaintiffs allege that RAC violated the Missouri Merchandising Practices Act ("MMPA") by taking default judgments against them in state court without having obtained personal jurisdiction. Specifically, they allege the default judgments were based on returns of service signed by special process servers who were not appointed by the Court to serve process in accordance with Missouri law. In Count II of the amended petition, the Plaintiffs allege that RAC was unjustly enriched at the expense of the Plaintiffs and the putative class members by the default judgments and monies collected after those judgments were entered. The Plaintiffs seek damages and an order declaring RAC's prior judgments against them void as a matter of law and directing RAC to set the judgments aside. RAC removed the case to the Court on Jan. 5, 2018 based on diversity jurisdiction pursuant to 28 U.S.C., Sections 1332, 1441, 1446 and 1453, and the Class Action Fairness Act ("CAFA"). The Plaintiffs seek remand on the grounds that the Court lacks jurisdiction over their claims pursuant to the Rooker-Feldman doctrine. RAC opposes remand and moves to compel individual arbitration and stay litigation or, in the alternative, to dismiss the case without prejudice, pending the individual arbitrations. Judge Ross finds that the Plaintiff was the losing party in state court proceedings that resulted in final judgment in favor of RAC. This judgment was entered before the current federal proceeding was commenced by way of removal. The Plaintiff challenges the validity of the state court judgments based on defective service and requests the Court declare the judgments void and direct that they be set aside. Granting the Plaintiff the relief she seeks would require the Court to effectively reverse the state court decision or void its ruling, exactly what the Rooker-Feldman doctrine prohibits. The Judge therefore determines that the Rooker-Feldman doctrine divests the Court of subject matter jurisdiction over the action, and that this provides a basis for remand, as well. The Plaintiff asks that the Court reviews and rejects a state court judgment. Such a request is clearly outside the jurisdiction of the Court and must be remanded. Because the Court lacks subject matter jurisdiction over the action, RAC's pending motion to stay and compel arbitration will be denied without prejudice as moot. Accordingly, Judge Ross granted the Plaintiffs' Motion To Remand, and remanded the matter to the Circuit Court of the City of St. Louis. He denied the Defendant's Motion for Leave to File Short Surreply in Further Opposition to the Plaintiff's Motion to Remand. And finally, he denied without prejudice to refiling in state court the Defendant's Motion to Compel Individual Arbitration and Stay Litigation. A full-text copy of the Court's May 15, 2018 Memorandum and Order is available at https://is.gd/ocMABL from Leagle.com. Sade Beaton, individually and on behalf of all others similarly situated, Plaintiff, represented by Christopher E. Roberts -- croberts@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC & David T. Butsch -- dbutsch@butschroberts.com -- BUTSCH ROBERTS & ASSOCIATES, LLC. Rent-A-Center, Inc., Defendant, represented by Jocelyn A. Villanueva -- JVILLANUEVA@BERKOWITZOLIVER.COM -- BERKOWITZ OLIVER, LLP, pro hac vice, Nicholas L. DiVita -- NDIVITA@BERKOWITZOLIVER.COM -- BERKOWITZ OLIVER, LLP & Timothy R. West -- TWEST@BERKOWITZOLIVER.COM -- BERKOWITZ OLIVER, LLP. RENT-A-CENTER: Bid to Stay "Blair" Pending Appeal Nixed ------------------------------------------------------- In the case, PAULA BLAIR, ANDREA ROBINSON, and FALECHIA HARRIS, individually and on behalf of all others similarly situated, Plaintiffs, v. RENT-A-CENTER, INC., a Delaware corporation, RENT- A-CENTER WEST, INC., a Delaware corporation, and DOES 1-50, inclusive, Defendants, Case No. C 17-02335 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California denied the Defendants' motion to stay proceedings pending appeal of an order denying a motion to compel arbitration. The putative class action arises from rent-to-own agreements which Plaintiffs Blair, Robinson, and Harris contend set prices in excess of the maximum installment payment rates allowable under California law. Defendants Rent-A-Center, Inc. and Rent-A-Center West, Inc. ("RAC") maintain rent-to-own stores throughout California. These stores rent household merchandise (e.g., appliances, electronics, furniture) to consumers for a weekly, bi-weekly, or monthly fee. After a specified time period, if all the payments have been made the consumer will own the merchandise. The terms of these rent- to-own agreements are set forth in written contracts between the consumer and RAC which the consumer signs at the point of sale. RAC also asks the consumer to sign a separate arbitration agreement when she makes a purchase. In March 2017, Plaintiff Blair initiated the action in state court for claims relating to her 2015 and 2016 rental-purchase agreements with RAC. She sought relief for violations of (1) the Karnette Rental-Purchase Act, (2) the California Consumers Legal Remedies Act, (3) usury, (4) Section 17200 of the California Business and Professions Code, and (5) unjust enrichment. RAC removed the action to federal court. After Blair amended the complaint to drop her unjust enrichment claim, RAC moved to partially compel Blair's suit to arbitration. Because Blair opted out of the arbitration agreement contained in the 2016 rental-purchase agreement, RAC only sought to compel arbitration of Blair's claims relating to the 2015 agreement. While the motion to compel arbitration was pending, Blair amended her complaint a second time to add Plaintiffs Robinson and Harris. RAC could not locate signed arbitration agreements for Robinson or Harris, and so did not seek to compel arbitration of their claims. An order dated Oct. 3, 2017, denied most of RAC's motion to compel arbitration, granted RAC's motion to strike Blair's class action claims arising out of the 2015 agreement, and denied RAC's motion to stay pending arbitration. An October 25 order amended the October 3 order to remove the language striking Blair's class action claims. RAC appealed both orders and now -- five months later -- moves to stay all proceedings pending that appeal. Alternatively, RAC requests a temporary stay to allow it time to move for a stay in the Court of appeals. The order follows full briefing and oral argument. RAC submits that it has raised multiple issues in its appeal, including (1) whether the case is governed by Ferguson v. Corinthian Colleges, versus McGill v. Citibank, N.A.; (2) whether McGill is preempted by the FAA; and (3) whether the language of the contract exempts the entirety of Blair's Karnette Act, CLRA, and Section 17200 claims from arbitration. Judge Alsup finds that only one of these issues raises substantial questions going to the merits. He says the first and third issues raised in RAC's appeal are not substantial. The second issue, however, does raise serious questions going to the merits of the appeal. The October 25 order rejected RAC's argument that McGill is preempted by the FAA, explaining that RAC's authorities were in opposite and that McGill does not violate the FAA's prohibition on rules specifically disfavoring arbitration. Nevertheless, because our court of appeals has not yet addressed the argument, the oder finds that RAC has raised a serious question as to whether McGill is preempted by the FAA. The Judge further finds that the balance of the hardships also tips in the Plaintiffs' favor. RAC's appeal could take upwards of two years to resolve. Such a substantial delay would exacerbate the risk that putative class members could not be located by the time the case finishes. To be sure, he says the Plaintiffs' seek to represent a class of individuals who made purchases from RAC dating back to 2013, and so some putative class members may already be difficult to find. Nonetheless, these location difficulties will extend to the class members with more-recent purchases should a stay be granted. Because RAC has failed to show irreparable harm or demonstrate that the balance of the hardships tips in its favor, the motion to stay will be denied. The order needs not reach whether a stay would serve the public interest. For these reasons, Judge Alsup denied without prejudice RAC's motion to stay. RAC may renew its request for a stay after a ruling on the Plaintiffs' motion for class certification. He also denied RAC's request for a temporary stay of the action so that it may move for a stay with the Court of Appeals. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2HMP96g from Leagle.com. Paula L. Blair, Andrea Robinson & Harris A. Falechia, Plaintiffs, represented by James T. Hannink -- Jim.Hannink@sdlaw.com -- Dostart Hannink and Coveney, Zachariah Paul Dostart -- Paul.Dostart@sdlaw.com -- Dostart Hannink & Coveney LLP, Eric Prince Brown -- ebrown@altshulerberzon.com -- Altshuler Berzon LLP & Michael Rubin -- mrubin@altshulerberzon.com -- Altshuler Berzon LLP. Rent-A-Center, Inc., a Delaware corporation & Rent-A-Center West, Inc., a Delaware corporation, Defendants, represented by Christina Guerola Sarchio, Dechert LLP, H. Joseph Escher, III, Dechert LLP, Kirsten F. Gallacher -- KGallacher@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Lily Anna North, Dechert, LLP, Robert Kenneth Dixon -- rdixon@wilsonturnerkosmo.com -- Wilson Turner Kosmo, Robert Francois Friedman -- rfriedman@littler.com -- Littler Mendelson, P.C., pro hac vice, Vickie E. Turner -- vturner@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP & Gregory G. Iskander -- giskander@littler.com -- Littler Mendelson, P.C.. RESTORATION ROBOTICS: Aug. 21 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on June 25 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Restoration Robotics, Inc. (NASDAQ:HAIR) pursuant and/or traceable to Restoration Robotics' initial public offering ("IPO") commenced on October 12, 2017 and closed on October 16, 2017. The lawsuit seeks to recover damages for Restoration Robotics investors under the federal securities laws. To join the Restoration Robotics class action, go to http://www.rosenlegal.com/cases-1367.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. The complaint alleges that defendants negligently issued untrue statements of material facts in, and omitted required material facts from, the Offering Materials issued in connection with the IPO. As a result of the materially misleading Offering Materials, Restoration Robotics' stock price was artificially inflated. Since the IPO, Restoration Robotics' stock price has plummeted over 50% from its IPO price of $7.00 per share. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than August 21, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1367.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] RHODE ISLAND: Dismissal of "Rodriguez" Suit Recommended ------------------------------------------------------- Magistrate Judge Lincoln D. Almond of the U.S. District Court for the District of Rhode Island recommended the dismissal of the case, JOSE A. RODRIGUEZ, JR. v. COURTNEY E. HAWKINS, in her official capacity as Director of the Rhode Island Department of Human Services, C.A. No. 18-00243-WES (D. R.I.). The Plaintiff's Class Action Complaint alleges that the State of Rhode Island is failing to process Supplemental Nutrition Assistance Program ("SNAP") applications within the time frame mandated by federal law. Hispro se handwritten Complaint is substantially copied from the Class Action Complaint pending before the Court as Gemmell v. Affigne, C.A. No. 1:16-CV-00650- WES. The Gemmell case was filed on Dec. 8, 2016 by experienced class counsel from the National Center for Law and Economic Justice. On Feb. 28, 2017, Chief Judge Smith entered a Stipulation and Order of Settlement resolving the Gemmell case and obligating the Defendant to comply with the timely processing requirements for food stamps and to accurately report this processing to the Plaintiffs. Compliance with the Order of Settlement in Gemmell is currently under the active supervision of a Court-appointed Special Master. Pending before the Magistrate Judge for determination is the Plaintiff's Application to Proceed In Forma Pauperis ("IFP"). On May 4, 2018, the Plaintiff filed the pro se "Class Action" against Hawkins, in her official capacity as Director of the Rhode Island Department of Human Services. His Complaint was accompanied by an Application to Proceed IFP without being required to prepay costs or fees, including the $400 civil case filing fee. After reviewing the Plaintiff's Application signed under penalty of perjury, the Magistrate Judge concludes that the Plaintiff is unable to pay fees and costs in the matter and thus, he granted the Plaintiff's Application to Proceed IFP. Having granted IFP status, he is required by statute to further review the Plaintiff's Complaint sua sponte under 28 U.S.C. Section 1915(e)(2) and to dismiss the suit if it is frivolous or malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. The Magistrate Judge recommended that the Plaintiff's Complaint be summarily dismissed pursuant to 28 U.S.C. Section 1915(e)(2)(B) . He has found that the Plaintiff has cited no legal grounds to reopen or relitigate the class allegations made and settled in the Gemmell case in the new litigation. In addition, he says the Plaintiff's attempted "knock off" class action lawsuit be dismissed for two reasons. First, as stated, it is completely duplicative of the relief sought and the Special Master's ongoing efforts in the Gemmell case. Second, the Plaintiff may not pursue a Class Action Complaint as a pro se litigant. Thus, the Plaintiff is not legally authorized to proceed pro se with the class action litigation. Any objection to the Report and Recommendation must be specific and must be filed with the Clerk of the Court within 14 days of its receipt. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court's decision. A full-text copy of the Court's May 16, 2018 Report and Recommendation is available at https://bit.ly/2teFPTR from Leagle.com. Jose A. Rodriguez, Jr., Plaintiff, pro se. RURAL METRO: "Calleros" Labor Suit Remanded to State Court ---------------------------------------------------------- Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California remanded the case, REUBEN CALLEROS and RALPH RUBIO, on behalf of themselves and all others similarly situated in the state of California, Plaintiffs, v. RURAL METRO OF SAN DIEGO, INC. et al., Defendants, Case No. 3:17- cv-686-CAB-BLM (S.D. Cal.), to the state court. Calleros and Rubio filed the lawsuit on Feb. 22, 2017 in San Diego County Superior Court on behalf of a putative class of current and former individuals employed by Defendants Rural Metro of San Diego ("RMSD"), Rural Metro Corp., American Medical Response, Inc., and Envision Healthcare Corp. as ambulance crew members in California during the applicable class period. The complaint asserts one claim under the California labor code and one claim under California's unfair competition law, both of which stem from the Defendants' alleged failure to comply with California's rest period requirements. On April 5, 2017, the Defendants removed the complaint to the Court pursuant to Class Action Fairness Act ("CAFA"), alleging that there is sufficient diversity and that the amount in controversy exceeds $5 million. On Feb. 9, 2018, the Plaintiffs filed a motion to certify a class, and that motion is now fully briefed. Upon review of the parties' class certification briefs in conjunction with the complaint, the Court discovered that this suit may be subject to CAFA's local controversy exception. Accordingly, it instructed the parties to be prepared to discuss the applicability of this exception at the hearing set for the Plaintiff's motion to certify a class. At the hearing, the Plaintiffs agreed with the Court that the local controversy exception applies and argued that the Court must remand the case. The Defendants, however, argued that remand would be improper because there was no evidence that greater than two-thirds of the proposed Plaintiff classes are citizens of California and that it would be improper to find that the first requirement of the local controversy exception was satisfied based solely on the fact that all class members had worked in California during the four years preceding the date the complaint was filed. Accordingly, to further develop the record, the Court ordered the Defendants to provide the last known addresses of all the putative class members to the Plaintiffs' counsel and ordered further briefing on the matter. The Defendants have since provided the Plaintiffs with the class members' last known addresses and the additional briefing is complete. Consistent with the positions they took at the hearing, the Plaintiffs argue in their brief that the local controversy exception applies and requires remand, while the Defendants argue that it does not. Judge Bencivengo finds that there is no dispute that second and third requirements of the local controversy exception are satisfied. Approximately one-third of the potential class members were or are employed by RMSD and seek an additional hour of pay from RMSD for each day worked since Jan. 1, 2017. Accordingly, the complaint seeks significant relief from RMSD, and RMSD's conduct forms a significant basis for the class's claims. Further, because any injuries suffered by the class members arise out of work they did in California, any injuries they suffered in the form of missed meal and rest periods occurred in California. In addition, he also finds that all of the evidence before the Court supports a finding that at least two-thirds of the class members are citizens of California. Further, when the Plaintiffs sent opt out notices in the litigation to 1,258 San Diego class members, at least 1,109 of the California addresses to which the notices were sent were still valid, and that total did not include the 32 individuals who opted-out. The Defendants, for their part, do not offer any evidence to the contrary, meaning that the only evidence before the Court weighs in favor of a finding that more than two-thirds of the class are California citizens. Thus, the preponderance of the evidence supports a finding that two-thirds of the class members were California citizens when the complaint was filed. Accordingly, because there is no dispute that the other elements of the local controversy exception apply, Judge Bencivengo ordered that the case be remanded to the state court. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2JUm8Lh from Leagle.com. Reuben Calleros, individually and on behalf of all others similarly situated in the State of California & Ralph Rubio, individually and on behalf of all others similarly situated in the State of California, Plaintiffs, represented by A. Mark Pope -- pope@popeberger.com -- Pope, Berger, Williams & Reynolds, LLP, Harvey C. Berger -- berger@popeberger.com -- Pope, Berger, Williams & Reynolds, LLP & Sara Jayne Waller, Pope, Berger, Williams & Reynolds, LLP. 401 Rural Metro of San Diego, Inc., Rural Metro Corporation, American Medical Response, Inc. & Envision Healthcare Corporation, Defendants, represented by Michael S. Kun -- mkun@ebglaw.com -- Epstein, Becker & Green, PC. RXBAR: Faces Class Action Over Misleading Protein Bar Labels ------------------------------------------------------------ Emily Sortor, writing for Top Class Actions, reports that a class action lawsuit claims that RXBAR protein bars' labels are misleading and that the product is not as natural as it is advertised to be. Plaintiff Michael Pizzirusso says he purchased an RXBAR in New York state, choosing the bar because the label indicated that the product contained only natural ingredients and "no bad stuff." Allegedly, the product's actual ingredients are not whole and natural as advertised. The RXBAR class action lawsuit claims that the Chicago Bar Company, the makers of the RXBAR, intentionally misrepresents the RXBAR as containing more natural ingredients to entice consumers into buying the product. Mr. Pizzirusso says he was financially injured by the Chicago Bar Company because he would not have purchased the RXBAR, or would not have paid as much for it, had he known that it was not all natural as it was advertised. He seeks damages for himself and for all similarly affected consumers. The RXBAR class action lawsuit states that both the RXBAR and the RXBAR kids protein bars contain a vertical list of ingredients on the front of the bar, and a statement that the bars contain "no B.S." and "no bad stuff," respectively. Mr. Pizziruso claims that based on the ingredient list and the statement that the products contain no undesirable ingredients, "the [Chicago Bar Company's] marketing message is built around the promotion of 'real' ingredients and alludes to other companies that 'hide' unfavorable or artificial ingredients deep in their ingredient list on the back of the package." The RXBAR protein bar class action lawsuit alleges that this marketing implies that the bars contain no more and no less than what is listed on the front of the package in the ingredient list. However, the RXBAR false advertising class action lawsuit claims that this is not the case and that the ingredients are not simply what is listed. Mr. Pizziruso says that although the label states that the product contains egg whites, the product only contains some egg protein powder, not the entire egg white, as is implied by the label. He claims that a reasonable consumer would assume that a product advertised to contain "3 egg whites," as the RXBARs are, would contain three whole egg whites, not merely components and proteins of egg whites. Mr. Pizziruso says the company intentionally did not include the wording "egg white protein powder" on the label because consumers would not be attracted to that wording. The RXBAR label class action lawsuit states that consumers are more likely to buy "natural" and "wholesome" foods rather than other foods, and the Chicago Bar Company knows this. Allegedly, the company knew that consumers would be less likely to see the wording "egg white protein powder" as compatible with a "whole and natural" product and would be less likely to buy the product. Similarly, the Chicago Bar Company false advertising class action lawsuit claims that though the bars advertise that they are "made with real fruit," they contain apple juice concentrate. Allegedly, the company intentionally omitted including the fact that the bars are made with fruit juice concentrate because concentrate is seen as less natural and desirable than fresh- pressed juice. Mr. Pizzaruso is represented by Joshua Levin-Epstein of Levin- Epstein & Associates PC, and Spencer Sheehan of Sheehan & Associates PC. The RXBAR Misleading Label Class Action Lawsuit is Michael Pizzirusso v. Chicago Bar Company LLC, Case 1:18-cv-03529, in the U.S. District Court for the Eastern District of New York. [GN] S&A UNIFIED: "Stalling" Files Request for Judicial Intervention --------------------------------------------------------------- A request for judicial intervention was filed on May 10, 2018 in the case docketed as Nicole Stallings, individually, and on behalf of all others similarly situated, Plaintiff, v. S & A Unified Home Care, Inc., Defendant, Case No. 701420/2018 (N.Y. Sup., January 29, 2018). Stallings seeks maximum liquidated damages for late overtime wages and non-overtime wages, spread-of-hours premium, recovery of compensation for not receiving notices and statements, costs and attorneys' fees pursuant to the New York Labor Law. Defendant was engaged in business of providing home care services where Stallings was employed as a home care worker. [BN] Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Tel: (718) 740-1000 Fax: (718) 355-9668 Email: abdul@abdulhassan.com S&A Unified Home Care, Inc. is represented by: COLE SCHOTZ PC 1325 Avenue of the Americas New York, NY 10019 Tel: (212) 752-8000 SANDIA CORP: Court Dismisses "Kennicott" Suit --------------------------------------------- The United States District Court for the District of New Mexico granted Defendant's Motion to Dismiss state law claims in the case captioned LISA A. KENNICOTT; LISA A. GARCIA and SUE C. PHELPS, on behalf of themselves and a class of those similarly situated, Plaintiffs, v. SANDIA CORPORATION, Defendant, No. CIV 17-0188 JB/GJF (D.N.M.). Sandia Labs is a federally-funded research and development contractor operating under contract for the Department of Energy. Kennicott worked for Sandia Labs as a member of Technical Staff. She returned to Sandia Labs in 1999 as a Senior Member of Technical Staff, and, in 2005, was promoted to Principal Member of Technical Staff. She has a master's degree in computer science from the University of New Mexico and a master's degree from Harvard University. The Plaintiffs allege that Sandia Labs violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2 (Title VII), under the New Mexico Human Rights Act, N.M. Stat. Ann Section 28- 1-7(A) ("NMHRA"), and the New Mexico Fair Pay for Women Act, N.M. Stat. Ann. Section 28-23-3(A) ("NMFPWA"). Specifically, they allege that Sandia Labs discriminates against female employees in performance evaluations, compensation, and promotions. In its Motion, Sandia Labs contends that the federal enclave doctrine bars the Plaintiffs' state-law claims. According to Sandia Labs, Congress has exclusive authority over federal enclaves, including Kirtland Air Force Base, where Sandia Labs is located. Sandia Labs notes that neither the NMHRA nor the NMFPWA existed when Kirtland Air Force Base was established in 1954. Accordingly, Sandia Labs contends, the Court should dismiss the Plaintiffs' NMHRA and NMFPWA claims, because those statutes do not apply on the Kirtland Air Force Base. In the Response, the Plaintiffs assert that Sandia is not a federal enclave for the class-wide, common policies at issue. The Plaintiffs contend that federal enclave's application depends on the locus of relevant decisions-making, where the employment policies are practices were made. The Plaintiffs argue that, at this early stage, Plaintiffs understand that at least some of the female employees covered by this lawsuit worked outside of federal land, and that Sandia substantially conducted its common human resources functions off-base. The primary issues are: (i) whether the federal enclave doctrine applies to state-law employment discrimination claims if the employer makes allegedly discriminatory decisions off the enclave; (ii) whether the federal enclave doctrine bars the Plaintiffs' claims against the Defendant under the NMHRA and the NMFPWA; and (iii) whether Sandia Labs made the employment decisions those claims on the Kirtland Air Force Base. The Court concludes that: (i) the federal enclave doctrine applies to state employment discrimination claims when a plaintiff works on a federal enclave, no matter where the employer makes the decisions underlying those claims; (ii) the federal enclave doctrine bars the Plaintiffs' NMHRA and NMFPWA claims, because the Plaintiffs worked on the Kirtland Air Force Base, and those state statutes do not apply in that federal enclave; and (iii) Sandia Labs has not established that it made the employment decisions underlying the Plaintiffs' claims on Kirtland Air Force Base, so if the Court were to decide -- which it does not -- that the federal enclave doctrine applies only when the challenged employment decisions are made on an enclave, then the Plaintiffs' NMHRA and NMFPWA would survive the Motion. Accordingly, the Court grants the Motion and dismisses the Plaintiffs' NMHRA and NMFPWA claims with prejudice. A full-text copy of the District Court's May 14, 2018 Memorandum Opinion is available at https://tinyurl.com/yc56umm2 from Leagle.com. Lisa A. Kennicott, Lisa A. Garcia & Sue C. Phelps, on behalf of themselves and a class of those similarly situated, Plaintiffs, represented by Michael Ian Levin-Gesundheit -- mlevin@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Shira J. Tevah -- stevah@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Adam T. Klein, Outten & Golden LLP, pro hac vice, Anne Brackett Shaver -- ashaver@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Cheryl-Lyn Bentley, Outten & Golden LLP, pro hac vice, David Lopez, Outten & Golden LLP, pro hac vice, Kelly Maureen Dermody - - kdermody@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Lin Yee Chan -- kdermody@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP & Tiseme Gabriella Zegeye -- tzegeye@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP. Sandia Corporation, doing business as Sandia National Laboratories, Defendant, represented by Scott D. Gordon -- sgordon@rodey.com -- Rodey, Dickason, Sloan, Akin & Robb, P.A., Grace E. Speights -- grace.speights@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice, Jeffrey L. Lowry -- jllowry@rodey.com -- Rodey, Dickason, Sloan, Akin & Robb, P.A., Krissy A. Katzenstein -- krissy.katzenstein@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice, Michael S. Burkhardt - - michael.burkhardt@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice, Paola Viviana Jaime, Rodey, Dickason, Sloan, Akin & Robb, P.A. & Theresa W. Parrish -- tparrish@rodey.com -- Rodey, Dickason, Sloan, Akin & Robb, P.A.. SKYWEST INC: "Meek" Parties Directed to Confer on Schedule ---------------------------------------------------------- In the case, CODY MEEK, Plaintiff, v. SKYWEST, INC., et al., Defendants, Case No. 17-cv-01012-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California has entered an order regarding the Defendants' motion to dismiss. This is a wage-and-hour employment class action brought by Meek, a former ramp agent at San Francisco International Airport, against his former employers, Defendants SkyWest, Inc. and SkyWest Airlines, Inc. The Plaintiff's complaint asserts seven legal claims against the Defendants on behalf of a "California Frontline Employee Class" and two subclasses. The Frontline employees include ramp agents and other non-management employees in SkyWest's customer service department. The Defendants have moved to dismiss the complaint under Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure, raising 20 separate grounds for dismissal. To cut through the brush, Judge Donato needs to determine whether the parties were parties to a collective bargaining agreement ("CBA"). This question is central to most of the pending issues. The Defendants argue, for example, that six of the Plaintiff's seven claims are preempted by the Railway Labor Act because resolution of those claims would require the Court to interpret the parties' collective bargaining agreement. Another of the Defendants' arguments -- that the Plaintiff's shift trade theory in Claim Three fails because he was exempt from overtime under Wage Order 9 -- is also dependent on the existence of a collective bargaining agreement. The CBA determination turns on questions of fact that are ill- suited to a motion to dismiss. The Judge finds that the Plaintiff's complaint attaches as an exhibit a document the Plaintiff refers to as the "2014 Customer Service Policy Manual," and the complaint includes numerous assertions about why the "Policy Manual is not a Collective Bargaining Agreement." The Defendants for their part simply refer to that same document as a "CBA" in their motion to dismiss, and argue that the Plaintiff's challenge to the CBA it has negotiated with SkyWest under the RLA has already been considered and rejected in Blackwell v. SkyWest Airlines, Inc. The Judge finds that Blackwell does not establish that the 2014 Customer Service Policy Manual is a CBA. That decision was issued in December 2008, close to 10 years before the amended complaint in the case was filed in June 2017, and the decision references a "Standard Practices" document which on its face does not sound identical to the "Customer Service Policy Manual" at issue. That kind of inquiry is not possible or appropriate on a motion to dismiss brought under FRCP Rule 12. Consequently, Judge Donato denied the Defendants' dismissal arguments that are premised on the existence of a CBA between the parties. He also denied the remaining arguments that are not so conditioned, without prejudice to renewal at a later stage, if appropriate. He says those arguments were presented in too cursory a form for meaningful resolution, such as the Defendants' barely-briefed argument that San Francisco's local minimum wage ordinance should be struck down as preempted by federal law, or are otherwise not efficiently addressed at this stage of the case. To move forward, the parties are directed by the Judge to meet and confer on a schedule for summary judgment proceedings on the existence of a CBA, and agreements on discovery that is targeted to the CBA issue. The parties should file a proposed schedule by June 15, 2018. The parties are advised that duplicative cross- motions will not be accepted. The Court will look to the parties in the first instance to agree upon an approach that avoids the problem. If they can't come up with one, the Court will order an approach. As a dual track to the course of action, the Judge referred the case to Magistrate Judge Elizabeth D. Laporte for a settlement conference. Judge Laporte will set the schedule for the conference. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2t9s7Bk from Leagle.com. Cody Meek, on behalf of himself and all others similarly situated, Plaintiff, represented by Crystal Gayle Foley -- cfoley@simmonsfirm.com -- Simmons Hanly Conroy, Adam A. Edwards - - adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Lisa A. White -- lisa@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Mark E. Silvey, Greg Coleman Law PC, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLC, pro hac vice & Paul J. Hanly, Jr. -- phanly@simmonsfirm.com -- Simmons Hanly Conry LLC, pro hac vice. Skywest, Inc. & Skywest Airlines, Inc, Defendants, represented by Amanda C. Sommerfeld -- asommerfeld@jonesday.com -- Jones Day, Kelsey Israel-Trummel -- kitrummel@jonesday.com -- Jones Day & Patricia Task Stambelos -- patricia@patriciastambelos.com -- SkyWest Airlines, Inc.. SP PLUS: 7th Cir. Vacates Dismissal of "Collier" FACTA Suit ----------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, vacated the judgment granting Defendant's Motion to Dismiss the case captioned KATHRYN G. COLLIER AND BENJAMIN M. SEITZ, individually and on behalf of others similarly situated, Plaintiffs- Appellants, v. SP PLUS CORPORATION, Defendant-Appellee, No. 17- 2431 (7th Cir.). SP Plus operates public parking facilities at Dayton International Airport and is headquartered in Chicago. Collier and Seitz allege that they used these parking lots in 2015 and received receipts that included the expiration date of their credit or debit cards. Printing that information, they say, violated the Fair and Accurate Credit Transaction Act (FACTA). The district court denied the motion to remand because FACTA is a federal statute, so the case "arises under federal law" and the court had jurisdiction under 28 U.S.C. Section 1331. The court then analyzed the standing question. Collier and Seitz had failed to allege an actual harm, the court stated, because they did not support their request for actual damages with factual allegations. Relying on Spokeo, Inc., v. Robins, 136 S.Ct. 1540 (2016), and Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016), the court determined that Collier and Seitz could not establish standing by stating only that the defendant had violated statutory requirements. Thus, the court reasoned, Collier and Seitz had not established subject matter jurisdiction. The court granted Collier and Seitz leave to amend their complaint. When they did not, the court dismissed the case with prejudice. As the party invoking federal jurisdiction, SP Plus had to establish that all elements of jurisdiction including Article III standing existed at the time of removal. Here, it is clear that Collier and Seitz's complaint did not sufficiently allege an actual injury. A mere reference to actual damages in the complaint's prayer for relief does not establish Article III standing. The single reference here falls far short of an allegation that the plaintiffs suffered a concrete harm or appreciable risk of harm apart from the statutory violation. Thus, Section 1447(c) required the district court to remand this case to state court, because it does not satisfy Article III's requirements. Accordingly, the Seventh Circuit vacates the judgment and remands with instructions to return the action to state court. A full-text copy of the Seventh Circuit's May 14, 2018 Opinion is available at https://tinyurl.com/ybbl8brq from Leagle.com. Robert James Pavich, for Plaintiff-Appellant. Steven H. Gistenson -- sgistenson@dykema.com -- for Defendant- Appellee. Micah M. Siegal for Plaintiff-Appellant. Mary E. Lentz -- slentz@goodmanallen.com -- for Plaintiff- Appellant. TAMKO BUILDING: Court Denies Certification of "Disher" Class ------------------------------------------------------------ In the case, RICHARD DISHER, ERIC KLINE, JOHN O'MALLEY and DIMITRI MISHUROV, on behalf of themselves and all others similarly situated, Plaintiffs, v. TAMKO BUILDING PRODUCTS, INC., Defendant, Case No. 14-CV-740-SMY-SCW (S.D. Ill.), Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois granted the Defendant's Motion for Order Denying Class Certification as Moot. The named Plaintiffs filed the putative class action against Tamko, alleging product defect, breach of warranty, negligence, and fraud claims. They Plaintiffs own homes or other structures in Illinois, Kentucky, and Colorado on which Tamko's shingles are or have been installed. The Plaintiffs alleged that based on Tamko's representations, they purchased the shingles with the expectation that they would last for at least 30 years. They also alleged that the shingles failed long before 30 years due to certain design flaws that cause them to crack, curl, blister, de-granulate, deteriorate and cause damage to the underlying structure. They asserted that with knowledge of these design flaws, Tamko sold and continues to sell the shingles and to make false representations and warranties with respect to them. Tamko moved to dismiss each of the Plaintiff's claims, and on July 31, 2015, the Court granted in part and denied in part Tamko's motions. Specifically, it denied Tamko's motion to dismiss Disher's strict liability, negligence, breach of express warranty, unjust enrichment, and Illinois Consumer Fraud Act claims; denied Tamko's motion to dismiss O'Malley's strict liability, negligence, fraudulent concealment and unjust enrichment claims; and denied Tamko's motion to dismiss Kline's strict liability, negligence, fraudulent concealment, Colorado Products Liability Act and breach of express warranty claims. Tamko also moved to compel arbitration of Plaintiff Kline's claims, which the Court granted. In August 2015 and April 2016, Tamko filed motions for summary judgment on the Plaintiffs' remaining claims. The Plaintiffs moved for class certification in July 2016. On Feb. 15, 2018, the Court entered orders granting Tamko's motion for summary judgment as to Disher in its entirety and granting in part Tamko's motion for summary judgment as to O'Malley's claims; leaving only his strict liability and negligence claims. The Plaintiffs' Motion for Class Certification remains pending. Tamko now moves the Court to deny that Motion as moot. Judge Yandle finds that there is currently no Plaintiff with a "live claim" who can pursue the litigation. All claims on which the Plaintiffs sought class certification have been dismissed, referred to arbitration or denied as a matter of law. Given that Disher, Kline, and O'Malley's class-action claims have been dismissed, they can no longer be the class representatives. Thus, the question of class-certification is irrelevant at this juncture. For these reasons, the Judge granted Tamko's Motion for Order Denying Class Certification as Moot. He denied without prejudice the Plaintiffs' Motion to Certify Class to the Class Counsel naming a new proposed class representative by June 18, 2018. The pending motions to exclude and/or Daubert motions submitted in relation to the class certification briefing are denied as moot and without prejudice. Said motions may be renewed, if necessary, if a new class representative moves for the class certification. A full-text copy of the Court's May 16, 2018 Memorandum and Order is available at https://bit.ly/2t8zoBE from Leagle.com. Richard Disher, on behalf of himself and all others similarly situated, Eric Kline, on behalf of himself and all others similarly situated & John O'Malley, on behalf of himself and all others similarly situated, Plaintiffs, represented by Amy E. Boyle -- boyle@halunenlaw.com -- Halunen Law, John J. Driscoll -- john@thedriscollfirm.com -- Driscoll Firm, P.C., Brendan Thompson -- brendant@cuneolaw.com -- Cuneo Gilbert & LaDuca LLP, Charles J. LaDuca -- charlesl@cuneolaw.com -- Cuneo Gilbert & LaDuca LLP, Christopher J. Quinn, Driscoll Firm, P.C., Melissa S. Weiner -- weiner@halunenlaw.com -- Halunen Law, Michael J. Flannery -- mflannery@cuneolaw.com -- Cuneo Gilbert & LaDuca LLP, Rebecca A. Peterson -- rapeterson@locklaw.com -- Lockridge Grindal Nauen, PLLP, pro hac vice, Robert K. Shelquist -- rkshelquist@locklaw.com -- Lockridge Grindal Nauen PLLP, S. Clinton Woods, Audet & Partners LLP & William M. Audet, Audet & Partners LLP. Tamko Building Products, Inc. & Tamko Roofing Products, Inc., Defendants, represented by David H. Luce -- dluce@bbdlc.com -- Carmody, MacDonald et al., Jessica Miller -- jessica.miller@skadden.com -- Skadden, Arps, et al., Richard T Bernardo -- richard.bernardo@skadden.com -- Skadden, Arps et al., Adam Tubbs -- adam.tubbs@skadden.com -- Skadden, Arps et al., David P. Stoeberl -- dps@carmodymacdonald.com -- Carmody MacDonald PC, John H. Beisner -- john.beisner@skadden.com -- Skadden, Arps, et al., John Daniel McAnnar, Carmody MacDonald PC, Laura Bailey Brown, Carmody MacDonald PC & Thomas E. Fox -- thomas.fox@skadden.com -- Skadden, Arps et al.. TARGET CORP: Ct. Rejects Data Breach Class Suit Payout Objection ---------------------------------------------------------------- Sara E. Teller, writing for Legal Reader, reports that on 2013, a historic and horrendous data breach at Target left millions of consumers terrified that their personal information ended up in the wrong hands. A multi-state investigation quickly ensued and found that hackers had accessed the popular retailer's gateway server through credentials stolen from a third-party. Target eventually settled claims issued by 47 states and the District of Columbia for nearly $17 million, but the terms of the agreement were met with objection. In total, Target reported hackers stole data from up to 40 million credit and debit cards of shoppers who had visited its stores during the 2013 holiday season. The retailer also indicated the total cost of the data breach totaled roughly $202 million. The settlement agreement, which provided for a $10 million fund for customers and $6.75 million for plaintiffs' attorneys was approved in November 2016. Under its terms, Target was required to adopt advanced safety measures to secure customer information such as employing an executive to oversee a comprehensive information security program as well as advise its chief executive and board. The company was also required to hire an independent, qualified third party to conduct a comprehensive security assessment and encrypt card information in order to make it useless if stolen. Class members with documented losses were scheduled to be compensated from the fund first, and the remainder of the funds were to be distributed among class members with undocumented losses. Objector Lief Olson had argued the named class members should not have been allowed to represent those like him who suffered no losses in the matter. The district court reconsidered his claims after the Eighth Circuit in February 2017 and ordered it to conduct a more rigorous analysis of class certification. "Over 99 percent of the Target data breach class gets nothing in this multimillion-dollar settlement, so we are glad that the Eighth Circuit recognizes that the District Court cannot rubber-stamp settlements where class counsel cuts corners on procedural fairness, so they can get paid quickly and generously," objector counsel Melissa Holyoak of the Center for Class Action Fairness in Washington said. Ultimately, the court rejected Mr. Olson's challenge that the named plaintiffs weren't adequate representatives for the whole class because they received compensation while others didn't. This time around the Eighth Circuit was satisfied with the court's conflicts analysis. It also rejected objector Jim Sciaroni's argument that 29 percent of the total fund was an excessive fee award for class counsel. "All class members had the ability to register for credit monitoring, and all of the compromised payment cards undoubtedly were canceled and replaced by the issuing banks," Judge Bobby E. Shepherd, nominated to this post by former Presidents George W. Bush, wrote for the U.S. Court of Appeals for the Eighth Circuit. "Any risk of future harm is therefore entirely speculative," the court added. Vincent J. Esades of Heins Mills & Olson P.L.C. in Minneapolis argued for the class. Melissa Ann Holyoak of the Competitive Enterprise Institute Center for Class Action Fairness argued for the objection issuers. The decision regarding the objection doesn't affect a separate $39 million class settlement between Target and banks over losses from the breach, which was approved in May 2016. [GN] TD BANK: Added as Defendants in Price-Fixing Class Action --------------------------------------------------------- Anita Balakrishnan, writing for Law Times, reports that entities related to TD Bank and BMO will be added as parties to a class action suit against major banks, after Ontario's Court of Appeal overturned a lower court's decision. The case, Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, is the latest twist in a series of legal actions across the world involving secretive chat messages, allegedly between bankers in the foreign exchange markets. The appeal decision explored what steps a representative plaintiff could reasonably take to establish that the Canadian banks could be co-conspirators in the secretive price-fixing scheme in the foreign exchange markets. "I think the takeaway point from this case is that the bar for showing diligence in terms of adding defendants is pretty low, and that's particularly the case in conspiracy claims or when the defendants have taken steps to conceal [their involvement]," says Simon Bieber -- sbieber@AGBLLP.com -- partner at Adair Goldblatt Bieber LLP. In December, Justice Paul Perell of the Superior Court of Justice acknowledged that there was no evidence of public documents tying TD and BMO to the alleged conspiracy. Justice Perell reasoned that the plaintiff should have taken steps to conduct a meaningful investigation to identify TD and BMO as co- conspirators. The appeals judge, Associate Chief Justice Alexandra Hoy, found that the motion judge had "too high an evidentiary threshold." "The decision of the Court of Appeal restores the proper balance," says Kirk Baert, partner at Koskie Minsky LLP, which represented the plaintiffs. Mr. Baert says the standard set by Justice Perell was "especially hard to meet in price-fixing cases, which necessarily involve secret conduct." The case, which involves more than a dozen financial institutions, alleges that banks "took active steps to conceal their participation" in a scheme to fix prices in the foreign exchange market between Jan. 1, 2003 and Dec. 31, 2013. A group of entities related to UBS bank had already settled when, in July 2016, appellant Christopher Staines tried to add more institutions to the case. Mr. Staines' grounds were that UBS said that FX traders at TD and BMO were among participants in a conversation with more than 2,000 "collusive chats," according to the appeal. In most Ontario cases, including this one, an action must be started on or before the second anniversary of the day on which the claim was discovered, said Mr. Hoy, who wrote the appeal decision. The claim would have been statute-barred if they discovered it before July 20, 2014. The motion judge questioned whether TD and BMO's identities could have been established if a meaningful investigation had taken place before time ran out, even with the late additions from UBS. Nonetheless, the plaintiff's explanations should be given a "generous reading," Mr. Hoy wrote, citing Wakelin v. Gourley. Context must be considered when assessing whether a plaintiff did "reasonable diligence" to find evidence, Mr. Hoy said. The fundamental issue the court was grappling with in this appeal was the meaning of "exercising due diligence" to discover a potential claim, says Margaret Waddell, founding partner of Waddell Phillips Barristers. "The error of the motions judge was in holding class counsel to an unreasonably high standard -- effectively expecting them to function like a regulatory investigator, and expecting them to take extraordinary steps," Ms. Waddell says. Given the appeal decision to add TD and BMO as parties, despite the time limit, the plaintiffs can go on to conduct discovery and dig further into the identities of alleged participants in the conspiracy, said W. Fraser McDonald, partner at Allen McDonald Swartz LLP. The entities affected by the appeal will be Toronto Dominion Bank, TD Securities, TD Bank USA, NA, T.D. Group Holdings, TD Bank N.A., Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A. and BMO Capital Markets Limited. TD declined to comment, and BMO did not immediately respond to a request for comment. "The banks themselves conceded that even reasonable diligence on the part of the plaintiffs might not have led to the conclusion that the banks were co-conspirators. This was a key point in the end as the Court of Appeal held that the plaintiffs can add TD and BMO to the list of defendants (and that the plaintiffs be entitled to costs as well)," says Anita Anand, a professor at the University of Toronto Faculty of Law. According to Koskie Minsky, settlements of more than $100 million have already been reached with UBS, BNP, Bank of America, The Goldman Sachs Group, Inc., JPMorgan Chase & Co., Citigroup Inc., Barclays Bank PLC, HSBC Holdings PLC, Royal Bank of Scotland Group PLC, Standard Chartered PLC, The Bank of Tokyo Mitsubishi UFJ, Ltd. and Societe Generale S.A. Settlements are not an admission of fault. Class action proceedings involving foreign and domestic firms that operate in Canada have been on the rise, particularly in parallel to U.S. cases. Lowering the threshold of evidence to add defendants and pushing diligence later into the process -- as the appeal judge suggested in this case -- might not be the most just and expeditious way to resolve class action conflicts given the influx of class action suits, says competition litigator Nikiforos Iatrou. "My read on this case is that it aligns with a trend -- with an unfortunate trend -- of consistently lowering the bar for plaintiffs' lawyers in these kinds of class actions," Mr. Iatrou says. Alyssa Tomkins, partner at Caza Saikaley LLP, acknowledges that it can be frustrating for practitioners when there's less rigour early in the process, potentially stretching out the suit and piling on expenses for clients. But, she says, in this case, there is context around the particular appeal decision that extends beyond the trends within class action law. "I would say the appeal appears correct. There is the reality of a representative plaintiff . . . to impose that level of burden on them would appear to be excessive," Ms. Tomkins says. [GN] TESLA MOTORS: "Rodriguez" Sues Over Missed Breaks, No Paystubs -------------------------------------------------------------- Jorge Rodriguez, on behalf of herself, all others similarly situated, and on behalf of the general public, Plaintiff, v. Tesla Motors, Inc. and Does 1-100, Case No. RG18904409 (Cal. Super., May 10, 2018), seeks unpaid wages including overtime, meal and rest period compensation, final pay, penalties, redress for failure to maintain required records and furnish accurate itemized wage statements, injunctive and other equitable relief and reasonable attorneys' fees and costs pursuant to the California Labor Code and the applicable Welfare Commission Orders. Tesla is an electric car manufacturer -- https://www.tesla.com/about -- operating from its Fremont factory in California where Rodriguez was employed as a non-exempt factory staff. [BN] Plaintiff is represented by: Matthew J. Matern, Esq. Joshua D. Boxer, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 Facsimile: (310) 531-1901 Email: mmatern@maternlawgroup.com - and - Corey B. Bennett, Esq. MATERN LAW GROUP, PC One Market Street, Suite 3676 San Francisco, CA 94105 Telephone: (415) 990-8390 Facsimile: (310) 531-1901 TEVA PHARMA: "Baker" SEC Suit Transferred to Conn. -------------------------------------------------- The case captioned Barry Baker, individually and on behalf of all others similarly situated, Plaintiff, v. Teva Pharmaceutical Industries Ltd., Erez Vigodman, Eyal Desheh and Yitzhak Peterburg, Defendants., Case No. 17-cv-03902, (E.D. Pa., August 30, 2017), was transferred to the U.S. District Court of Connecticut on May 10, 2018, under Case No. 18-cv-00798. Baker seeks damages, pre-judgment and post-judgment interest as well as reasonable attorneys' fees, expert fees and other costs and such other and further relief under the Securities and Exchange Act of 1934. The complaint says Defendants failed to disclose the negative impact resulting from the acquisition and integration of Actavis Generics on Teva's financial results and business prospects. Teva announced lower than anticipated second quarter results due to the performance of its US generics business. It recorded a goodwill impairment charge of $6.1 billion in the second quarter of 2017 related to the Company's acquisition of Actavis. Teva's US generics business suffered accelerated price erosion and delays in product launches. Teva shares dropped from closing prices of 111.30 per common share and $31.25 per American Depository Share (ADS) on August 2, 2017 to a new 52-week low closing price of 71.28 per common share on August 6, 2017 and $20.60 per ADS on August 4, 2017, on heavy two-day trading volume. Teva Pharmaceuticals USA, Inc. is a Delaware corporation with its principal place of business at 1090 Horsham Road, North Wales, Pennsylvania 19454. Actavis Elizabeth, LLC is a Delaware limited liability company with its principal place of business at 200 Elmora Ave., Elizabeth, NJ 07207. Actavis was acquired by Teva in 2016. Plaintiff is represented by: Keith R. Lorenze, Esq. Jacob A. Goldberg, Esq. THE ROSEN LAW FIRM, P.A. 101 Greenwood Avenue, Suite 440 Jenkintown, PA 19046 Tel: (215) 600-2817 Fax: (212) 202-3827 Email: klorenze@rosenlegal.com jgoldberg@rosenlegal.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, New York 10165 Tel: (212) 697-6484 TJX COS: Ct. Grants Final Approval of "Chester" Class Settlement ---------------------------------------------------------------- The United States District Court for the Central District of California granted Plaintiffs' Motion for Final Approval of Class Action Settlement in the case captioned STACI CHESTER, et al., Plaintiffs, v. THE TJX COMPANIES, INC., et al., Defendants, No. EDCV 15-01437 ODW (DTBx) (C.D. Cal.). The Parties' Settlement Agreement is granted final approval as it meets the criteria for final settlement approval. The Settlement falls within the range of possible approval as fair, adequate, and reasonable, and appears to be the product of arm's-length and informed negotiation and to treat all Class Members fairly. Class Counsel is awarded $2,125,000, as attorneys' fees, and $35,497.97 as costs, pursuant to the terms set forth in the SA. A full-text copy of the District Court's May 14, 2018 Opinion is available at https://tinyurl.com/yaxqywfv from Leagle.com. Staci Chester, an individual & Daniel Friedman, an individual; individually and on behalf of all others similarly situated, Plaintiffs, represented by Christopher J. Morosoff -- cjmorosoff@morosofflaw.com -- Law Offices of Christopher J Morosoff, Douglas Caiafa -- dcaiafa@caiafalaw.com -- Douglas Caiafa APLC, Michael G. Dawson, Law Offices of Herbert Hafif & Greg K. Hafif -- ghafif@hafif.com -- Law Offices of Herbert Hafif. Robin Berkoff & Theresa Metoyer, Consol Plaintiffs, represented by Christopher J. Morosoff, Law Offices of Christopher J Morosoff, Douglas Caiafa, Douglas Caiafa APLC, Michael G. Dawson, Law Offices of Herbert Hafif & Greg K. Hafif, Law Offices of Herbert Hafif. Steven Helfand, Objector, Movant, pro se. The TJX Companies, Inc., a Delaware corporation & TJ Maxx of CA, LLC, a Delaware limited liability company, Defendants, represented by Aliki Sofis -- alikisofis@quinnemanuel.com -- Ropes and Gray LLP, pro hac vice, Anne Johnson Palmer Anne.JohnsonPalmer@ropesgray.com -- Ropes and Gray LLP, Benjamin O. Aigboboh -- baigboboh@sheppardmullin.com -- Sheppard Mullin Richter and Hampton LLP, Jay T. Ramsey -- jramsey@sheppardmullin.com -- Sheppard Mullin Richter and Hampton LLP, John P. Bueker -- John.Bueker@ropesgray.com -- Ropes and Gray LLP, pro hac vice & P. Craig Cardon -- ccardon@sheppardmullin.com -- Sheppard Mullin Richier & Hampton LLP. Marshalls of CA, LLC & Homegoods, Inc., Consol Defendants, represented by Aliki Sofis, Ropes and Gray LLP, pro hac vice, Anne Johnson Palmer, Ropes and Gray LLP, Benjamin O. Aigboboh, Sheppard Mullin Richter and Hampton LLP, Jay T. Ramsey, Sheppard Mullin Richter and Hampton LLP & P. Craig Cardon, Sheppard Mullin Richier & Hampton LLP. Rhadiante Van de Voorde, Objector, represented by Caroline V. Tucker -- ctucker@tuckerpollard.com -- Tucker Pollard. Barbara S. Cochran, Objector, pro se. TRAVELERS HOME: Wins Summary Ruling on Individual Claims -------------------------------------------------------- In the case, KYLE STECHERT and MARIE STECHERT, on behalf of themselves and all others similarly situated, v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, THE TRAVELERS COMPANIES, INC., TRAVELERS PROPERTY CASUALTY COMPANIES and TRAVELERS INDEMNITY COMPANY, Civil Action No. 17-CV-784 (E.D. Pa.), Judge J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania granted the Defendants' Motion for Summary Judgment on the individual claims of the Plaintiffs Stecherts. The instant action has its origins in an automobile accident which occurred on Jan. 23, 2015 when the 2014 Chevrolet Equinox which Plaintiff Marie Stechert was driving was struck by another vehicle when it turned left directly into Mrs. Stechert's path of travel, pushing her off the road into a utility pole. As a result of this accident, Mrs. Stechert and her two small children were injured and their car had to be towed away. Shortly thereafter, Mr. Stechert contacted his insurance agent at the Univest Insurance Agency in Lansdale, PA to notify them of the accident and the agent then turned the matter over to the Stecherts' automobile insurance carrier, Travelers Home and Marine Insurance Company. Under their Travelers policy, the Plaintiffs had an extended transportation expense ("ETE") benefit which afforded them the ability to secure a rental vehicle at the maximum rate of $30 per day up to a total of $900, or for a period not to exceed 30 days. After receiving notification of the accident, a Travelers representative arranged for a five-day rental car reservation for the Plaintiffs through Enterprise Rent-A-Car. Thus, following discharge of Mrs. Stechert and the children from the hospital emergency room later that afternoon, Mr. and Mrs. Stechert obtained a rental car from Enterprise. The Plaintiffs however, required a larger car than what was available for $30 per day, and therefore they personally paid the overage of $11.49 daily for the vehicle they rented. A few days after the accident, Travelers sent an appraiser to Souderton Auto Body in Souderton, Pennsylvania to examine the damaged Equinox. On Jan. 27, 2015, that appraiser, Brian Killen, determined the vehicle to have been a total loss. On that same date, Mr. Killen sent a form "Rental Reimbursement/Loss of Use Notice" to Mr. Stechert which, in addition to notifying him that the vehicle had been deemed a "Total Loss." Notwithstanding the notice, the Plaintiffs did not return their rental vehicle within five days. Rather, it took until Feb. 6, 2015 for Travelers to determine, in consultation with the leasing company which owned the Equinox, that its value was $19,752.60. The Plaintiffs disagreed with that assessment and requested an extension on the rental car. Travelers granted the extension to Feb. 13, 2015 and told them to submit comparable values for consideration. Although Travelers had been in discussions with Ally Bank (the lienholder on the Stecherts' vehicle) about Ally sending a letter of guarantee, this issue was not resolved until after Feb. 13, 2015. By the action, the Plaintiffs assert that in sending them the Rental/Reimbursement/Loss of Use Notice with the language limiting the rental to five days from the date the total loss determination is made, Travelers breached its contract with them insofar as their policy did not contain such a limitation. They also submit that the policy was further breached by Travelers' failure to make a determination as to what period of time was reasonably required to repair or replace their vehicle. In addition to seeking monetary damages for breach of contract, the Plaintiffs also allege that the Defendants acted in bad faith and in violation of 42 Pa. C. S. Section 8371 thereby entitling them to further compensatory and punitive damages as well as declaratory and equitable/injunctive relief. Further, the Plaintiffs seek to represent a class consisting of all persons, since at least six years prior to the filing of this Complaint, who have been policyholders of automobile insurance policies sold in the Commonwealth of Pennsylvania by the Defendants (and/or their subsidiaries, affiliates and/or related entities) that have provided Extended Transportation Expense Coverage, who have made a claim to the Defendants for Extended Transportation Expense Coverage as a result of a total loss of a vehicle damaged in a covered accident, and as to whom Defendants have limited the amount of time such coverage is provided to a period of time less than 30 days. In the Court's Order of Nov. 8, 2017, it Court granted the Defendants' Motion to Stay Class Certification or for Protective Order and prohibited the taking of discovery relative to the class and the issue of class certification until after such time as we issued a decision on summary judgment motions on the Plaintiffs' individual claims. On Jan. 17, 2018, the Defendants timely filed the motion for summary judgment. Their motion is essentially premised on the argument that since the Plaintiffs received the ETE benefits to which they were entitled, the Defendants are entitled to the entry of judgment in their favor as a matter of law and the Plaintiffs are therefore not the proper class representatives. Judge Joyner does not find that the Defendants' actions and mis- communications rose to the level of a breach of contract. Additionally, he finds that the Plaintiffs have not met their burden of proving damages. To be sure, the only evidence on this point is Mr. Stechert's testimony that: (1) the replacement 2012 Equinox turned out to be a "total lemon" which they wouldn't have settled for had he received Ms. Hamra's voicemail informing him that the rental had been extended; and (2) that their monthly payment increased from the $132/month which they were paying to lease the 2014 vehicle to $246.91/month to purchase the 2012 vehicle. Given the dearth of evidence on what other vehicles may have been available to the Plaintiffs between February 13 and February 21 and at what cost, the Judge is left to speculate as to what damages the Plaintiffs may or may not have suffered as a consequence of turning in the rental on February 13th. He therefore finds that summary judgment is properly granted in favor of the Defendants on Count I of the Plaintiffs' Complaint. The evidentiary record also does not support the Plaintiffs' claim that Travelers denied them the ETE benefits to which they were entitled under their policy. For this reason, the only conclusion which the Judge can now reach is that the Defendants did not act in bad faith within the meaning of Section 8371 and that judgment is properly entered in their favor as a matter of law as to Count II in its entirety. As to Counts III and IV of the Plaintiffs' Complaint, the Judge cannot find any basis upon which to grant either declaratory or equitable/injunctive relief. For one, the Plaintiffs have not shown actual success on the merits of their claims and as a consequence, their claim for issuance of a permanent injunction fails. As to the issuance of declaratory relief, the Judge agrees with the Plaintiffs that it logically follows from the policy language outlining the ETE benefit that a determination of the amount of time insureds reasonably require to replace their vehicles must be made prior to terminating and/or limiting ETE benefits. This fact notwithstanding, he cannot find that the Defendants necessarily breached the policy by issuing the Rental Letter in the absence of a showing that the Plaintiffs were not afforded the benefits to which they were due under the policy. For these reasons, he will grant judgment in favor of the Defendants on Counts III and IV of the Complaint as well. For these reasons, Judge Joyner granted the Defendants' Motion for Summary Judgment on the individual claims of the Plaintiffs Stecherts. An Order follows. A full-text copy of the Court's May 15, 2018 Memorandum and Order is available at https://is.gd/VLYR63 from Leagle.com. KYLE STECHERT & MARIE STECHERT, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by ANDREW P. BELL -- abell@lockslaw.com -- LOCKS LAW FIRM PLLC, RICHARD M. OCHROCH -- aochroch@ochroch-law.com -- OCHROCH & ASSOC., P.C. & MARC P. WEINGARTEN -- mweingarten@lockslaw.com -- LOCKS LAW FIRM. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, THE TRAVELERS COMPANIES, INC., TRAVELERS PROPERTY CASUALTY COMPANIES & TRAVELERS INDEMNITY COMPANY, Defendants, represented by VLADA TASICH -- vxtasich@mdwcg.com -- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN & BROOKS FOLAND -- BRFoland@mdwcg.com -- Marshall Dennehey Warner Coleman & Goggin. TRANSNATIONAL FOODS: "Lejbman" Suit Dismissed --------------------------------------------- Judge Cathy Ann Bencivengo of the U.S. District Court for the Southern District of California granted the Defendants' motions to dismiss the case, VIVIAN LEJBMAN individually and on behalf of all others similarly situated, Plaintiff, v. TRANSNATIONAL FOODS, INC., a Florida corporation, et al., Defendants, Case No. 17-CV- 1317-CAB-MDD (S.D. Cal.). On June 27, 2017, the Plaintiff filed a consumer protection class action complaint against Transnational and Conservas Cerqueira, S.A., seeking damages and equitable relief for the alleged false representations and omissions regarding the Defendants' marketing, advertising, labeling, packaging, distributing and selling of the Pampa Octopus products. The complaint alleged violations of California's False Advertising Law; the Unfair Competition Law; California's Consumers Legal Remedies Act; negligent misrepresentation; and intentional misrepresentation. The complaint alleged the Court had jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). On Dec. 1, 2017, the Plaintiff filed the First Amended Complaint ("FAC"). The FAC asserted similar claims against the Defendants concerning the three of the Pampa Octopus Products. The Plaintiff sought to represent a nationwide class consisting of all person in the United States who have purchased the Product for personal use and not for resale, from the period of four- years prior to the date of filing this Complaint, up to an including the date that Notice has been provided to the Class. In the alternative, she sought to represent all persons in the State of California who have purchased the product. On Dec. 15, 2017, the Defendants each moved to dismiss the Plaintiff's FAC. On March 12, 2018, the Court granted in part and denied in part the motions to dismiss. The Plaintiff was given leave to amend the claim brought on behalf of the nationwide class, but was cautioned that if she chose to do so she would need to demonstrate the threshold requirement that California had significant contact or significant aggregation of contacts to the claims of each class member. The Plaintiff was also ordered to show cause, if she chose not amend to restate the nationwide class claims, why the action should not be dismissed for lack of subject matter jurisdiction. Specifically, she was directed to provide the Court with evidence that $5 million is in controversy based on the remaining California class claims. On March 19, 2018, the Plaintiff filed a Notice of her intention to file an amended complaint addressing the standing issue related to the claims brought on behalf of the nationwide class. On April 2, 2018, she filed the Second Amended Complaint ("SAC"). The SAC asserts the same causes of action as the FAC and seeks to represent a class consisting of all persons in the State of California who have purchased the Produce for personal use and not for resale, from the period extending four-years prior to the date of filing this Complaint, up to and including the date that Notice has been provided to the Class. Noticeably absent from the complaint are any allegations related to claims being made on behalf of a nationwide class. Like its predecessors, the SAC states that the Court has jurisdiction because it is a class action arising under CAFA and the Plaintiff has alleged that the total claims of the individual members of the Plaintiff class in this action are in excess of $5 million, in the aggregate, exclusive of interests and costs, diversity of citizenship exists under CAFA because the Plaintiff is a citizen of the State of California and the Defendants can be considered citizens of States other than California. On April 16, 2018, the Defendants each moved to dismiss the Plaintiff's SAC on jurisdictional grounds under Federal Rule of Civil Procedure 12(b)(1). On May 8, 2018, the Plaintiff filed her response in opposition along with a redline copy of the SAC. On May 14, 2018, the replies were filed. Judge Bencivengo finds that the Plaintiff has submitted no evidence that CAFA's amount in controversy requirement has been met. Not only did the Plaintiff fail to produce evidence in response to the Court's order to show regarding the amount in controversy, the SAC simply contains the conclusory allegation that the total claims of the individual members of the Plaintiff Class in the action are in excess of $5 million. The Plaintiff's response in opposition fairs little better. A passing reference to unspecified, possible damages that could potentially be available to an indeterminate number of class members under the CLRA and UCL is not evidence upon which the Court's determination can rest. Similarly, the Plaintiff's suggestion that Mr. Iribarne's declaration is not helpful or reliable in figuring out the aggregate amount in controversy and does not represent the total amount, is unsupported by any evidence and is of little use to the Court. Having twice afforded the Plaintiff the opportunity to prove that the amount in controversy here meets the $5 million CAFA threshold, and having twice failed, the Judge has determined that the Court does not have subject matter jurisdiction over the case. Lacking subject matter jurisdiction over the case, Judge Bencivengo granted the Defendants' motions to dismiss. Accordingly, he dismissed without prejudice to re-filing in state court the Plaintiff's individual claims and the ones she asserts on behalf of the California class. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/Du2W13 from Leagle.com. Vivian Lejbman, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin Michael Lopatin -- BLopatin@ELPLawyers.com -- Eggnatz, Lopatin & Pascucci, LLP. Transnational Foods, Inc., a Florida corporation, Defendant, represented by Christopher W. Wasson -- wassonc@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice, Katrina M. Long -- longk@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice, Tambry Lynette Bradford -- bradfordt@pepperlaw.com -- Pepper Hamilton LLP & Yvonne M. McKenzie -- mckenziey@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice. Conservas Cerqueira, S.A., a foreign corporation, Defendant, represented by Clayton J. Hix -- chix@hillfarrer.com -- Hill, Farrer & Burrill, LLP & William A. White -- wwhite@hillfarrer.com -- Hill Farrer and Burrill LLP. UNITED COUNTY: Grayson County Considers Joining Tax Class Action ---------------------------------------------------------------- HeraldDemocrat.com reports that Grayson County Commissioners were scheduled discuss the possibility of the county joining a class action lawsuit aimed at getting the county money from the federal government on June 26. The commissioners' meeting will start at 10 a.m. at the Grayson County Courthouse in Sherman. The lawsuit to be discussed says the U.S. government underpaid some states and counties for payment in lieu of tax payments on federal land for which the county can't collect taxes. Kane County in Utah filed a lawsuit in the U.S. Court of Federal Claims to recover its own underpayments and a judge certified the case as a class action suit. A quick look on a federal website for the U.S. Department of the Interior shows Grayson County was paid $146,764 on 57,604 acres in 2015, $148,016 on 57,047 in 2016 and $151,290 on 57,059 acres in 2017. There was nothing in the court's agenda packet that said how much more the county thinks it should have been paid. [GN] UNITED STATES: Rights Activist Group Sue Over Family Separation --------------------------------------------------------------- Gene Johnson, writing for The Associated Press, reports that immigrant rights activists in Seattle sued the Trump administration on June 25, saying it is unnecessarily prolonging the separation of asylum-seeking immigrants from their children. The Northwest Immigrant Rights Project filed the lawsuit on June 25 in U.S. District Court in Seattle on behalf of three Central American women held in federal custody in Washington state, thousands of miles from where immigration officials have transferred their children. The lawsuit seeks class-action status on behalf of dozens of other immigrants separated from their children and detained in Washington state. The organization says U.S. Immigration and Customs Enforcement has provided no information about whether or when the detainees' asylum cases will move forward or when they'll be reunited with their children. "Without any assertions of abuse, neglect, or parental unfitness, and with no hearings of any kind, the government is detaining these parents on the other side of the country from their young children, who have been left to face an uncertain future frightened and alone," the lawsuit said. "Many of these parents have been unable to even speak to their children since their separation." Washington, California, New Jersey and at least eight other states have also announced plans to jointly sue the administration over the separations. Facing a global uproar, Trump issued an executive order halting further separations. But the order did nothing to speed the reunification of families already separated when they reached the U.S.-Mexico border. An administration official told The Associated Press on June 25 that the administration is divided about whether the reunifications -- or prosecutions and deportations -- should take precedence. The lawsuit accuses the administration of violating the due- process rights of the mothers, inflicting severe emotional trauma on them as well as their children. But in a series of typo-laden tweets, President Donald Trump continued insisting on June 25 that those apprehended entering the country illegally should not be entitled to due process, but rather immediately deported without an appearance before a judge. Federal law gives such migrants a right to seek asylum. The lawsuit asks the court to immediately release the detainees and reunify them with their children, or at least detain them together. It also asks the court to order the government to conduct interviews with the detainees to determine whether they have a credible fear of persecution or torture if returned to their home country; it's the first step in the asylum process, but no such interviews have been scheduled for the detainees, further prolonging their detention and separation from their children. U.S. Immigration and Customs Enforcement spokeswoman Carissa Cutrell said in an email the agency does not comment on litigation. Among the three women suing is Blanca Orantes-Lopez, who fled El Salvador with her 8-year-old son after the family received an anonymous threat demanding $5,000 or the boy's life; the boy's uncle had previously been kidnapped and held for ransom. Ms. Orantes spoke with The Associated Press in a phone interview from a federal prison in SeaTac, south of Seattle. She has since been transferred to the Northwest Detention Center, a privately run immigration jail in Tacoma. Ms. Orantes sobbed throughout the interview, recalling how officials took her boy more than a month ago. She hasn't seen him since, but she has been able to speak with him twice in the week since the AP's story ran -- for the first time since he was shipped off to transitional housing in upstate New York. "They told me, 'Say bye to him because he's being transferred.' I asked where," she recalled. "They just told me to say bye to him. . . . He just started crying, saying, 'Don't leave me, Mom.' " The other plaintiffs are Ibis Guzman, whose 5-year-old son was taken from her after they fled Honduras, and Yolany Padilla, who left Honduras with her 6-year-old son. Ms. Guzman has not spoken with her son in more than a month, and Ms. Padilla has spoken to hers once, the lawsuit said. [GN] UNITED STATES: Settlement in "Moss" Suit Has Prelim Approval ------------------------------------------------------------ In the case, MICHAEL MOSS, et al., Plaintiffs, v. UNITED STATES SECRET SERVICE, et al., Defendants, Case No. 1:06-cv-03045-CL (D. Or.), Judge Ann Aiken of the U.S. District Court for the District of Oregon, Medford Division, adopted Magistrate Judge Clarke's Findings and Recommendation ("F&R") on Feb. 27, 2018 to grant the Unopposed Motion for Preliminary Approval of Class Action Settlement and Related Relief. The Judge finds that although this relieves her of her obligation to perform a de novo review, she retains the obligation to make an informed, final determination. Following the recommendation of the Rules Advisory Committee, she reviews the F&R for clear error on the face of the record. Having reviewed the file of the case, she finds no clear error. Therefore, Judge Aiken adopted Magistrate Judge Clarke's F&R and granted the Unopposed Motion for Preliminary Approval of Class Action Settlement and Related Relief. He directed the Class counsel to contact Courtroom Deputy Cathy Kramer at Cathy ramer@ord.uscourts.gov or (541) 431-4102 to set a date for a fairness hearing. The class counsel will then proceed with the notice plan as outlined in the motion for preliminary approval of the settlement. A full-text copy of the Court's May 15, 2018 Order is available at https://is.gd/zgwbVo from Leagle.com. Michael Moss, Lesley Adams, Beth Wilcox, Richard Royer, Lee Frances Torelle, Mischelle Elkovich, Anna Vine O'Connell & Jackson County Pacific Green Party, Plaintiffs, represented by Steven M. Wilker -- steven.wilker@tonkon.com -- Tonkon Torp LLP, Alexander M. Tinker -- alex.tinker@tonkon.com -- Tonkon Torp LLP & Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, pro hac vice. United States Secret Service, of the Department of Homeland Security, Ralph Basham, Former Director of the United States Secret Service, in his individual capacity, Tim Wood, United States Secret Service Agent, in his official and individual capacities & Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants, represented by Brant S. Levine, U.S. Department of Justice Civil Division, Torts Branch & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch Constitutional & Specialized Torts Section. John Doe 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs & Mark Sullivan, Director of United States Secret Service, in his official capacity, Defendants, represented by Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch Constitutional & Specialized Torts Section. David Towe, Chief of Police of Jacksonville, Oregon in his official and individual capacities & City of Jacksonville, a municipal corporation of the State of Oregon, Defendants, represented by Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr. Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities, Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities, Tim F. McClain, Superintendent of the Oregon State Police, in his Official capacity & Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants, represented by Christina L. Beatty-Walters, Oregon Department of Justice & Christopher A. Perdue, Oregon Department of Justice. John Does 2-20, that is, the commanding officers of other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs & Corey Falls, Jackson County Sheriff, Defendants, represented by Michael D. Jewett, Attorney at Law, Devin D. Huseby, Jackson County Counsel & Joel C. Benton, Jackson County Counsel. United States Secret Service, of the Department of Homeland Security, Cross Defendant, represented by Brant S. Levine, U.S. Department of Justice Civil Division, Torts Branch & Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch Constitutional & Specialized Torts Section. WALMART STORES: Appeals Court Won't Reconsider Fee Award Ruling --------------------------------------------------------------- Matt Fair, writing for Law360, reports that a Pennsylvania appeals court will not reconsider its decision to order further analysis from a trial judge on the reasoning behind what Wal-Mart Stores Inc. argues was an excessive fee award for attorneys who secured a $241 million award in a wage-and-hour class action against the retail giant. [GN] WHOLE FOODS: To Implement GMO Product Labeling Changes After Suit ----------------------------------------------------------------- Brian Huges, writing for Entrepreneur, reports that trust is the cornerstone of a company's brand, but it must be earned. Today's consumers are smarter, more demanding and able to access more information about a product or service. In fact, Search Engine Land found that 88 percent of consumers surveyed said they trusted online reviews as much as personal recommendations. That's why, to meet buyer expectations, more and more businesses are working to establish a foundation of trust by increasing transparency. Transparency as a means to trust Transparency requires entrepreneurs to be open about key aspects of their business, including their operations, supply chains and performance. According to a 2016 study by Label Insight, 94 percent of respondents agreed that it was important to them that the brands and manufacturers they buy from be transparent about what is in their food and how it is made. While this study was specific to the food industry, the demand for product transparency that it documented might be applied to all industries. The study also found that transparent companies were rewarded, with 37 percent of the consumers surveys saying that they would switch brands to those offering this degree of openness. Transparency equals trust, the survey implied; and brands that earn this trust attracted customer loyalty, in return. Whole Foods' Lesson Whole Foods Market is known for its healthy offerings of fresh, prepared and processed food. However, the brand took a hit when a class action lawsuit accused the company of mislabeling products as not being genetically engineered ("non-GMO"), when in fact they were. Whole Foods responded with the commitment that all products in its U.S. and Canadian stores would be labeled by this year, 2018, as to whether they contain genetically modified organisms (GMOs). The company thus became the first national grocery chain to set a deadline for full GMO transparency. The positive consumer response to Whole Foods Market's GMO transparency has pushed other stores to some level of commitment to non-GMO products, too. Kroger and Safeway announced that they would no longer sell genetically modified salmon. Dannon Corporation recently made a non-GMO ingredient option and clear- labels commitment to its consumers. What started as a pledge by Whole Foods to better label its products has expanded into a National Mandatory Bioengineered (BE) Food Disclosure Standard. The U.S. Department of Agriculture is currently soliciting comments toward the final rules. Patagonia's supply chain A company's supply chain ensures that it has the needed materials to produce a product, but today's consumers are questioning the environmental and social costs of those materials. As a result, there is a growing movement toward supply chain transparency, and Patagonia is leading the way. The company brings new partners into its supply chain using the "4-Fold" approach, which evaluates sourcing, quality, social and environmental factors. The company's commitment to transparency is found in its Footprint Chronicles, published factory lists and Cleanest Line blog. Patagonia has transformed its supply chain into one of its biggest brand elements through transparency and trust. Meanwhile, other industries are making moves along the same lines: The Estee Lauder Company recently committed to a transparent supply chain with regard to child labor. A recent study by Human Rights Watch documented the need to incorporate human rights into clothing and footwear supply chains. The food industry is facing both internal and external pressures to develop transparent supply chains due to food product recalls. ClearAid's charitable giving There is a real need for charitable giving across every topic from childhood cancer to environmental protections, but the trust in many nonprofit organizations may be waning. When charities like the Red Cross, the Wounded Warrior Project and the Cancer Fund of America are cited for lost or misappropriated funds, the honor of all charities is questioned. A recent MissionBox survey found that nearly 60 percent of respondents would give less to charities than they had in the past as a direct result of nonprofit and charity scandals. ClearAid seeks to restore public trust and increase charitable giving to nonprofit organizations through transparency in how monies are spent and crowdfunding is controlled. It uses a blockchain system that records and stores donations made and combines this technology with smart contracts that can result in refunds to donors if specific charity goals are not met. Together, these systems allow potential donors to trust that their gifts are being spent exactly as they'd intended. ClearAid's ultimate goal is to create crowd-based governance of charities that would approve or decline projects, manage transactions and oversee charitable operations. In the nonprofit world as well as the commercial one, transparency equals trust, which ensures that charities that are honorable can continue to make a difference in our world. Bottom line Businesses from grocery store chains to manufacturers rely on transparency to increase the trust quotient of their brand. As consumers appreciate the value this adds to their purchasing and giving decisions, they will demand this level of transparency from more businesses and charities. Whatever your own business, integrate transparency into your marketing and business model: Then use it to build trust to increase customer loyalty and gain a competitive edge. [GN] WINSLOW & SHOOMAKER: "Lee" Claims Vape Product Contain Pesticides ----------------------------------------------------------------- Ignacio Lee, individually and on behalf of all others similarly situated; Plaintiff, v. Winslow & Shoomaker, LLC, Alvin Nathaniel Joiner, SC Laboratories, Inc. and Does 1-50 inclusive, Defendant, Case No. BC705954, (Cal. Super., May 10, 2018), seeks redress for breach of express and implied warranty of merchantability, negligence and violation of the California Business and Professions Code, the Consumer Legal Remedies Act. Winslow & Shoomaker operates as Brass Knuckles and sells medical cannabis products including SC Labs branded vape cartridge. Lee consistently purchased "Candy Apple" and "Sour Diesel" variety vape cartridges. However, these concentrate cartridges are allegedly contaminated with pesticides. [BN] Plaintiff is represented by: Sara C. Colon, Esq. Nathan M. Smith, Esq. Nona Yegazarian, Esq. BROWN NERI SMITH & KHAN LLP 11601 Wilshire Boulevard, Suite 2080 Los Angeles, CA 90025 Tel: (310)593-9890 Fax: (310)593-9980 Email: sara@bnsklaw.com nate@bnsklaw.com nona@bnsklaw.com WOLF FIRM: Manos Appeals C.D. Cal. Decision to Ninth Circuit ------------------------------------------------------------ Plaintiff John C. Manos filed an appeal from a court ruling in his lawsuit styled JOHN MANOS, and on behalf of all similarly situated individuals, AKA John C. Manos v. THE WOLF FIRM, A Law Corporation; RCO LEGAL, P.S.; NORTHWEST TRUSTEE SERVICES, INC.; JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to Chase Home Finance, LLC Erroneously Sued As Chase Home Finance-TX; WAMU ASSET ACCEPTANCE CORP; SELECT PORTFOLIO SERVICING, INC.; CHASE HOME FINANCE-TX, Case No. 8:18-cv-00138- JLS-JDE, in the U.S. District Court for the Central District of California, Santa Ana. As previously reported in the Class Action Reporter, the proposed class action lawsuit was filed on January 24, 2018. The Wolf Firm, A Law Corporation, is a full service law firm. For over 25 years the Firm has provided a broad array of legal and related services throughout California and nationally to businesses in general and to members of certain specific industry segments. The appellate case is captioned as JOHN MANOS, and on behalf of all similarly situated individuals, AKA John C. Manos v. THE WOLF FIRM, A Law Corporation; RCO LEGAL, P.S.; NORTHWEST TRUSTEE SERVICES, INC.; JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to Chase Home Finance, LLC Erroneously Sued As Chase Home Finance-TX; WAMU ASSET ACCEPTANCE CORP; SELECT PORTFOLIO SERVICING, INC.; CHASE HOME FINANCE-TX, Case No. 18- 55729, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- June 15, 2018 -- Mediation Questionnaire due. If the registration for Appellate ECF is confirmed after this date, the Mediation Questionnaire is due within one day of receiving the e-mail from PACER confirming registration; -- July 9, 2018 -- Transcript shall be ordered; -- August 6, 2018 -- Transcript shall be filed by court reporter; -- September 17, 2018 -- Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; -- October 15, 2018 -- Appellees' answering brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellees' brief, pursuant to FRAP 31 and 9th Cir. R. 31-2.1.[BN] XEROX HR: Averts Class Action Over ERISA Violation -------------------------------------------------- Adam Lidgett, writing for Law360, reports that a proposed class of Ford Motor Co. retirement plan participants accusing the record keeper of their plans of violating the Employee Retirement Income Security Act over a contract with an advice services company had the latest edition of their complaint nixed by a Michigan federal judge on June 25. U.S. District Judge Robert H. Cleland granted a bid from Xerox HR Solutions LLC -- which has since been spun from Xerox to Conduent Inc. -- to dismiss the second amended ERISA complaint relating to its contract. The case is Chendes et al v. Xerox HR Solutions, LLC, Case No. 2:16-cv-13980 (E.D. Mi.). The case is assigned to Judge Robert H. Cleland. The case was filed November 9, 2016. [GN] ZICAM LLC: Court Allows Filing of SAC in "Melgar" Suit ------------------------------------------------------ In the case, YESENIA MELGAR, on Behalf of Herself and all Others Similarly Situated, Plaintiff, v. ZICAM LLC and MATRIXX INITIATIVES, INC., Defendants, Case No. 2:14-cv-00160-MCE-AC (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the parties' stipulation allowing the filing of the Plaintiff's Second Amended Complaint. Melgar filed the action against the Defendants. On Feb. 15 and 16, 2018, the parties attended a two-day mediation with renowned mediator Kenneth Feinberg in New York where the parties executed a Class Action Settlement Term Sheet. On May 2, 2018, the parties reached agreement on a formal Stipulation of Settlement. The Plaintiff filed a motion for preliminary approval of the settlement on May 3, 2018. The proposed settlement class includes purchasers of the Defendants' Soft Chews and Medicated Fruit Drops in addition to purchasers of the products identified in the First Amended Complaint. The Defendants' Soft Chews and Medicated Fruit Drops contain the same or similar active ingredients as the products identified in the First Amended Complaint, and contain representations regarding cold relief. The Court's May 29, 2014, Scheduling Order provides that no amendments to the pleadings are permitted without leave of court, good cause having been shown. Article 5.1 of the Stipulation of Settlement requires the filing of a Second Amended Complaint to include the purchasers of the Defendants' Soft Chews and Medicated Fruit Drops in the Settlement Class. The parties through their respective attorney, stipulated, and Judge England granted that the Plaintiff may file a Second Amended Complaint. The Defendants' deadline to respond to the Second Amended Complaint will be stayed. In the event that the parties' settlement is ultimately rejected, either by the Court or on appeal, the Defendants will file their response to the Second Amended Complaint within 30 days of such order. A full-text copy of the Court's May 16, 2018 Order is available at https://bit.ly/2yb8pLm from Leagle.com. Yesenia Melgar, Plaintiff, represented by Joseph I. Marchese, Bursor & Fisher, P.A., pro hac vice, Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor and Fisher, PA, Scott A. Bursor -- scott@bursor.com -- Bursor & Fisher PA & Thomas Andrew Reyda -- treyda@bursor.com -- Bursor & Fisher, P.A. Zicam LLC & Matrixx Initiatives, Inc., Defendants, represented by Alan J. Lazarus -- alan.lazarus@dbr.com -- Drinker Biddle & Reath LLP, Ashley Neglia -- ashley.neglia@kirkland.com -- Kirkland & Ellis LLP, Kathryn Michelle Jackson -- katie.jackson@dbr.com -- Drinker Biddle & Reath, LLP, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Robyn E. Bladow -- rbladow@kirkland.com -- Kirkland & Ellis LLP, Ryan S. Fife -- ryan.fife@dbr.com -- Drinker Biddle & Reath LLP & William A. Hanssen -- william.hanssen@dbr.com -- Drinker Biddle and Reath LLP. * Experts Divided on Removing Ban on Litigation Contingency Fees ---------------------------------------------------------------- Christine Caulfield, writing Lawyerly, reports that regulating third-party litigation funders gets a resounding yes, but experts are divided on removing the ban on contingency fees and other recommendations for reforming the class action regime. Lawyerly spoke to defence and plaintiff-side lawyers, as well as funders, for their take on the recent proposals, and five major talking points emerged. Removing the ban on contingency fees Both the Victorian Law Reform Commission and the Australian Law Reform Commission propose lifting the current prohibition on lawyers charging contingency fees as a way to encourage competition with litigation funders and to spur firms to take on smaller matters that funders see as unprofitable. The VLRC suggested any move by the state legislature to remove the ban be made in conjunction with the Commonwealth to avoid litigation forum shopping, a recommendation Quinn Emanuel partner Damian Scattini and IMF Bentham investment manager Matt Kennedy supported. "It has to be national otherwise, cynically, you'll find everyone filing in the Victorian Supreme Court," said Mr. Scattini. "Without a national approach, greater complexity will arise with respect to multiplicity of and competing class actions," Mr. Kennedy said. But Slater & Gordon head of class actions Ben Hardwick said the firm was "somewhat disappointed" the VLRC had suggested the more cautious approach. "It's time to take the next step," Mr. Hardwick said. "Victoria was the first state to introduce class actions and there is no reason why it can't be the first state to introduce contingency fees. There's no reason other states wouldn't follow and Victoria could take the lead." Both reports also suggested the removal be limited to certain class actions and under the supervision of the court. Shine Lawyers special counsel Vicky Antzoulatos questioned the rationale for excluding personal injury class actions. Ms. Antzoulatos, whose firm is leading the massive vaginal mesh class action against Johnson & Johnson on a no-win, no-fee basis, said litigation funders mostly steer clear of personal injury claims. "These class actions are very expensive to bring. The quantum is generally lower and there are statutory caps on damages," she said. Lifting the ban on contingency fees for cases relating to defective products would "really ensure access to justice, especially on a mass scale, where people have been injured by the one product", she said. King & Wood Mallesons corporate lawyer Matt Egerton-Warburton -- matt.egerton-warburton@au.kwm.com -- said the proposal would likely lower the costs to bring a claim, as the costs of litigation funding would not be included. "This may make previously 'uncommercial' claims, marginally commercial" he said. "The net result will likely be an increase in claims, but the overall quality of claims may deteriorate without the vetting that litigation funders provide." For his ASX-listed clients "this will likely have a detrimental effect as the increased litigation costs will lower shareholders returns." Matt Egerton-Warburton said he also worried about conflicts, "At present, lawyers are obliged to act in the best interests of their client in service of the court. With the introduction of contingency fees, lawyers will be primarily concerned with protecting their own fee position -- possibly to the detriment of their client or the court process. What if a client wants to settle but their lawyer sees more value in continuing to pursue an action?" IMF Bentham's Kennedy said the case for introducing contingency fees "remains elusive". "The current model, with lawyers acting for their clients, funders overseeing the lawyers' costs, and the court overseeing all, offers the best set of checks and balances," he said. Increasing transparency and strengthening court oversight Both reports make proposals to increase transparency with respect to funding arrangements and legal fees in class actions to improve accountability, and the lawyers and funders Lawyerly spoke with say they generally supported the recommendations, with some conditions. Ms. Antzoulatos said the proposal to increase oversight of the lead applicant's legal costs with the appointment of cost referees, already a power more and more judges are keen to use, was not something her firm opposed, but that the defendants' costs should also be scrutinised. "Oversight could disadvantage applicants if defendants' costs are also not reviewed," she said. "Without review, defendants can put enormous pressure on applicants if they know their costs will later be looked at". Quinn Emanuel's Scattini said his firm also welcomed transparency, but he too said it should be a two-way street. "When the terms of the funding agreement are shown to the defence, the defence should have to show their insurance arrangements to the plaintiffs. That's a good bit of transparency." More transparency and disclosure are fine, Slater's Hardwick said, provided confidentiality and privilege were protected. And there was no need to codify or legislate the court's existing powers to order the release of information, he said. "Our preference is for courts to continue to exercise its powers. I think it has to be a case-by-case analysis. There will be situations when it is preferable to preserve confidentiality, but that power rests with the court already." Strengthening, or codifying, the court's powers to set funding rates should also be considered with extreme caution, Ms. Antzoulatos said. "The courts need to allow market forces to set the funding rates," she said, adding that judges are not apprised of the commercial considerations that go into calculating a litigation funder's commission. Reviewing continuous disclosure rules The ALRC proposed a review of continuous disclosure obligations of listed companies and the propensity for corporate entities to be the target of funded shareholder class actions. A review would also examine the availability and cost of directors and officers liability cover in Australia, the commission said. King and Wood Mallesons' Egerton-Warburton said a review was welcome. "At present continuous disclosure is operating as a strict liability offence. There needs to be consideration of reasonable reforms that protect shareholders while also limiting penalties on companies for non-material breaches of their continuous disclosure requirements," he said. Mr. Egerton-Warburton said the "explosion" in class actions against listed companies was having unintended consequences, one of which was a substantial increase in the cost of directors and officers insurance. In at least one case, he said, a distressed company facing multiple class actions could not get D&O insurance at all. In a recent interview with Lawyerly, VLRC chair Justice Philip Cummins disputed the idea that there had been an explosion in class actions in Australia. IMF Bentham's Kennedy said weakening the continuous disclosure rules would be a "retrograde step". "A better approach would be to improve directors' understanding of their legal obligations, reducing the risk of misconduct in the first place," he said. "In any event proposals to water down the impact of the continuous disclosure regime are well outside the terms of reference and, for that reason alone, should not be pursued by the Commission." Continuous disclosure obligations serve as a check and balance, Shine's Antzoulatos said. "If we weaken those we could see more of the misconduct we've been seeing coming out of the Royal Commission," she said. The heart of the continuous disclosure obligations under the Corporations Act and ASX's listing rules was that investors have a right to information on a company's performance, Slater's Hardwick said. "It's very surprising that there is consideration of modifying those laws, particularly given the findings of the Royal Commission," he said. "The community would be very concerned if there were any move to roll back continuous disclosure rules." Craig Arnott, managing director of global litigation funder Burford Capital, said weakening the law would be a "great mistake". "The evidence about AMP at the Hayne Royal commission demonstrates that rules for proper corporate governance are needed now more than ever, and shows the destruction of value in corporations when they are not followed," Mr. Arnott said. Establishing a regulatory regime for litigation funders The ALRC proposed that litigation funders be subject to licensing requirements and regulation by the Australian Investments and Securities Commission. The VLRC said the Victorian Government should advocate for stronger, national regulation of funders. "Burford welcomes [ALRC chair] Justice Derrington's fair and considered report. We strongly agree with the recommendations that adequate capitalisation and transparency of funds should be important requirements in a licensing regime," Mr. Arnott said. IMF Betham's Kennnedy said his ASX-listed firm, which is already subject to ASIC oversight, welcomed regulation, especially of overseas funders. The funder would be making "detailed submissions" to ALRC before its final report is due in December, he said. "Overseas funders often hold very few assets in Australia and, for those who are private entities, their financial position is opaque. They have arguably fuelled the rise of "competing" class actions, which the courts are addressing," he said. Slater's Hardwick said a licensing regime "made sense". His firm would only engage a funder if it had adequate capital behind it, he said. Quinn's Scattini said regulation for funders was "long overdue". Introducing a collective redress scheme The ALRC proposed a federal collective redress scheme as an alternative to litigation, saying that in addition to a fine against a wrongdoing company a redress scheme, "would likely achieve greater access to justice and at a fraction of the cost of a class action". Mr. Egerton-Warburton said a redress scheme was potentially an efficient tool for companies to avoid the costs and diversion of litigation. For aggrieved shareholders, it means not losing a substantial percentage of any recovery to a third-party funder. "Collective redress schemes allow the corporate client to be proactive and to talk to a regulator early," he said. "If structured properly a scheme could provide companies with an avenue to offer redress efficiently for errors and aggrieved persons can be compensated." Burford's Arnott said the ALRC's discussion paper "overemphasised" the role a redress scheme could have, and noted that the UK's Consumer Rights Act, which allows a business to submit a voluntary redress scheme to the competition regulator, was a cautionary tale. "There can certainly be a role for such schemes, but we don't expect them to substitute for a 'day in court' and judicial scrutiny of claims," Mr. Arnott said. "The UK experience shows that they are slow moving, lead to dissatisfaction and often end up in litigation anyway." A redress scheme was a perplexing proposal, Quinn's Scattini said. "That seems to be not a solution to anything," he said. "I don't understand how that would be a better. There is a need for justice to be seen to be done, not just done. If you make it like a speeding ticket, if it becomes a transaction costs for businesses, I don't think that sends a good message at all." [GN] * New Class Action Regime Enforced in Kingdom of Saudi Arabia ------------------------------------------------------------- Mark Beswetherick, Esq. -- mark.beswetherick@clydeco.com -- and Shabnam Karim, Esq. -- shabnam.karim@clydeco.com -- of Clyde & Co LLP, in an article for Lexology, wrote that on December 15, 2017, new amended regulations came into force in KSA, and a class action regime is now in force in respect of securities disputes. In this article, Clyde & Co's Beswetherick and Karim look at the key features of this new class action regime and what practical effect this will have on KSA listed companies, management individuals and other stakeholders. The provisions refer to "existing and new suits" which could be suspended and then added to a class action. It appears therefore that the regulations will apply retrospectively to ongoing cases. The background to the introduction of this new regime In the last update, the Clyde & Co attorneys set out the changes that were rapidly taking place in KSA with the government encouraging foreign investment in the KSA economy and into listed KSA companies. In order to boost investor confidence, the country has introduced a wave of changes by regulators and government authorities; from an anti-corruption drive to a recent spate of enforcements leading to the suspension of licences by the Saudi Arabian Monetary Agency. The Capital Markets Agency (CMA) has been a particularly active regulator, investigating trading and accounting irregularities in listed companies and pursuing misrepresentation issues during IPO listing. The introduction of a class action regime paves the way for increased multi-party securities litigation, such as multiple shareholder or investor claims. This change also makes it administratively easier for courts to deal with multi-party litigation. A summary of the new regime The new regime came into force when the existing regulations (The Resolution of Securities Proceedings Regulations) were amended and a new chapter (Part 11) with 25 articles in it was added (the "Amended Regulations"), introducing a new class action regime. The scope of these new rules relate to securities disputes progressed as civil claims only. It is worth noting that the court also has jurisdiction to pursue criminal actions such as insider trading and fraud, but the criminal process is not impacted by this new regime. For an applicant to become part of a "class", he must demonstrate that his suit is identical to other suits "in terms of legal bases, merits and the subject matter of the requests". Notably, similarity is not sufficient and the suits must be identical. There is no clarity as yet on what test the applicant must satisfy to demonstrate that his case is the same on merits as other cases as this indicates that an assessment of merits must take place before the case can be added to the class. This can be contrasted with other class action regime across the world, such as the US where the test is in fact that there are common questions of law or fact amongst the class rather than whether the merits are identified. Under Article 50 of the Amended Regulations, the Committee for the Resolution of Securities Disputes (CRSD Committee), which is a quasi-judicial authority that determines securities disputes, shall have the discretion to decide whether a class action suit should be registered. Factors that will inform the CRSD's decision include whether individual suits might result in conflicting decisions or may result in the unfair treatment of members within the group. Issues of practicality and efficiency will also be a factor, pursuant to Article 50. Once a class action suit is registered, documents relating to it will be made available to the public. There will then be an opportunity for at least 90 days for other members to apply to join the class. The decision to approve a class action suit must be made within 90 days of the announcement of the first request. There should be at least ten requests that have been filed (in that period) for the class action suit to be approved. Under Article 53, any existing suits or new suits identical to the matters within the class action can be suspended by the CRSD, so that these suits are joined to the class action suit. However, if a party has been added to a class action suit as a Plaintiff, he/she can withdraw from it with needing the Defendant's approval, without prejudice to his/ her right to continue litigating the suit individually. Article 53 refers to suspending "existing and new suits". This indicates that if there are suits ongoing prior to this class action regime coming into force, which could now be part of a class action; it may be possible for the committee to suspend existing claims and add them to a class action, under the new regime. Each class action shall have a lead plaintiff who shall be appointed by the members of the group and shall represent the interests of all the members. As one of the key reasons behind this change is to improve efficiency and court administration of handling multiple claims, Article 62 provides that the committees will have full powers in managing the suits and in issuing any orders or decisions to ensure fairness and quick decisions. There is a provision within Article 64 of the Amended Regulations for the lead Plaintiff and the Defendant in the class suit to enter into a settlement agreement to end the class action. There are rules in force around settling the class action, such as ensuring that at least 30% of the group approves the settlement and that the committee approves the settlement. Those members who do not wish to accept the settlement can withdraw from it and continue to litigate individually. The impact of these changes The key reasons for this new regime appear to be: (i) a recognition that to encourage foreign investment into KSA, there must be confidence in the expediency of the court/ committee process connected with securities disputes and the requirement for consistent decisions and (ii) the need to facilitate administrative ease for the CRSD so that multiple claims can be dealt with together. This change may also signify an expectation that with more foreign investment in listed Saudi companies and increased securities activity, there is a higher chance of complex claims arising, especially multiple investor or shareholder claims. Some issues remain to be clarified, such as whether the process of registering class actions will be fair, if a merits test is conducted at the outset. There are also further issues to be resolved over time with regards to the CRSD processes. Management individuals and insurers of stakeholders (such as auditors and management individuals) should however take note of this change which may signify the expectation of increased regulatory activity and consequent litigation in KSA in the coming years. However, notwithstanding the above, Clyde & Co attorneys consider this new regime to be a welcome change, which will ease the process of multiple party litigation; and seek to make the handling of a claim more efficient and consistent. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *