/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180723.mbx C L A S S A C T I O N R E P O R T E R Monday, July 23, 2018, Vol. 20, No. 146 Headlines 3M CO: CAP Set Up to Advocate for PFAS-Affected Communities ALLSCRIPTS HEALTHCARE: Seeks Dismissal of Ransomware Class Action AMAZON.COM LLC: Court Enters Discovery Order in "Ortiz" Suit ASSOCIATED CREDIT: Court Grants Summary in "Fuqua" FDCPA Suit AUBURN, NY: Residents File Lawsuit Over Falls Landfill Stench BANK OF AMERICA: Court Denies Bid to Amend "Jackson" Suit BAR 20: Aug. 9 Mandatory Scheduling Conference in "Maciel" BOFI HOLDING: Ballard Spahr Attorney Discusses Class Action CAPITEC BANK: Summit Financial Abandons Case Over Payday Loans CERNER CORP: Judge Approves $4.5MM Class Action Settlement CHICAGO BRIDGE: Court Dismisses "Kinra" ERISA Suit CHICAGO BRIDGE: Loses Bid to Dismiss Securities Fraud Suit COMCAST: Faces Class Action Over Xfinity Mobile Fraud COMMONWEALTH BANK: Faces Shareholder Class Action CREDIT UNION: Put Under Liquidation, Class Action Pending CRST EXPEDITED: Court Certifies Truck Drivers Class CSK AUTO: Supplemental Brief for "Melgar" Settlement Bid Ordered CVS CAREMARK: Mailing May Have Disclosed HIV Status, Says Suit DEARBORN MOTORS: Court Dismisses Class Claims in "Williams" DR PEPPER: Wins Summary Judgment in Stockholders Suit DYNAMIC LEDGER: Injunction Bid in Tezos Securities Suit Denied EPIC SYSTEMS: Ruling Raises Statutory Interpretation Issues FCA US: African-American Workers' Discrimination Suit Can Proceed FLEX LTD: Kaskela Law Files Shareholder Class Action Lawsuit FIAT CHRYSLER: Faces Suit Over Software Flaw FLEX LTD: Kaskela Law Files Shareholder Class Action Lawsuit FORD MOTOR: Court OKs Filing of TAC in "Baranco" GOGO INC: Kaskela Law Files Shareholder Class Action GOGO INC: Wolf Haldenstein Files Securities Class Action GOGO INC: Federman & Sherwood Files Securities Class Action GOOD TIMES: TanaCon Attendees Mull Class Action GRAMERCY PROPERTY: Monteverde & Associates Files Class Action GREAT AMERICA: "Soto" FCRA Suit Remanded to State Court GRIMALDI INC: Employees File Wage Class Action in New York HANNIBAL, MO: Prelim. Settlement Reached in Water Quality Suit HORIZON BLUE CROSS: Pays NJ Surgery Centers $160MM to Settle Suit HORIZON HEALTHCARE: Fails to Comply with Discovery Orders IESI BETHLEHEM: Faces Class Action Over Landfill Odors ILLINOIS: Court Enters Prelim Injunction in "Rasho" Suit INNERWORKINGS INC: Faruqi & Faruqi Files Class Action Lawsuit IQOR HOLDINGS: Loses Interlocutory Appeal Bid in "Shoots" Suit JP MORGAN: Judge Approves $4.6MM Class Action Settlement KANSAS: Court Enters Show Cause Order in "McCorkendale" Suit MASSACHUSETTS: Settlement w/ Prisoners Prompts New HepC Protocol MATTRESS FIRM: State's Highest Court Asked to Weigh in on Case MCDONALD'S CORP: Seeks Dismissal of Quarter Pounder Class Action MDL 2029: Bid to Intervene in DVD Rental Antitrust Suit Denied MDL 2353: Court Won't Review Class Certification Denial MEDCARE INVESTMENT: "Collier" Wage & Hour Suit Moved to E.D. La. MERICO FINANCIAL: 4th Cir. Remands "Hancock" to Allow Amendment MONSANTO CO: Settlement in "Rawa" Suit Has Final Approval NAT'L COLLEGIATE: Points to 9th Cir. Decision on Transfer Rule NATIONSTAR MORTGAGE: Settlement in "Garcia" Has Prelim Approval NEW MEXICO: Ct. Denies Pro Se Class Certification Bid in "Amaro" NEW YORK: Court Denies Certification of "Sanchez" Class NEWELL BRANDS: Robbins Arroyo Files Securities Class Suit NIAGARA BOTTLING: Court Narrows Claims in Mislabeling Suit NIGERIA: Police Faces Class Action Over SARS-Related Abuses NUCOR CORP: Racial Bias Class Action Settlement Hearing Set PACIFIC GAS: Court Won't Certify Interlocutory Appeal in "Greer" POLARITYTE INC: Klein Law Firm Files Securities Class Action POMONA VALLEY: Denial of "Doster" Class Certification Affirmed PRICELINE.COM INC: Fort Smith A&P Joins Class-Action Lawsuit PULSE BIOSCIENCES: Kaskela Law Files Class Action Lawsuit PENNSYLVANIA: Court Certifies Inmates Class in HCV Suit QUALCOMM INC: Klein Law Firm Files Securities Class Action QUEBEC: School Boards Ready to Pay Out $153.5MM in Settlement RAYMOURS FURNITURE: Judge OKs Class Action Over Text Messages RENZENBERGER INC: Court Issues Protective Order in "Wright" RHODE ISLAND: Settlement in Retirement Benefits' Suits Affirmed SAN DIEGO, CA: Cal. App. Affirms Demurrer Ruling in "Reid" Suit SEATTLE GENETICS: Court Dismisses "Patel" Securities Suit SBE ENTERTAINMENT: Court Denies Summary Judgment in "Walintukan" SEIU: Riffey Ruling May Have Implications for Union Class Action SERENITY SPA: Court Dismisses "Benavides" FLSA Suit SOUTHEASTERN PENNSYLVANIA: Faces Class Action Over Reimbursements SQUAW VALLEY: Court Extends Time to Respond to "Pinto" FAC STATE FARM: Court Dismisses Amended MAO-MSO Suit TORRANCE REFINING: Faces Suit Over Water Contamination SUN LIFE: Court Denies Bid to Amend "Robertson" RICO Suit SUPER MICRO: Robbins Geller to Lead in Securities Fraud Suit TEZOS FOUNDATION: Launches Platform Amid ICO Class Actions TONOGA INC: Begins Probe Into PFOA Contamination Amid Suit UBER TECHNOLOGIES: Stinson Leonard Attorney Discusses Ruling UNITED STATES: Faces Class Action Over ACA Program UNITED STATES: Class Action Mulled on Behalf of Asylum Seekers UNITED STATES: FEMA Ordered to Extend Temporary Housing Vouchers UNITED STATES: FEMA to Continue Post-Hurricane Housing UNITED STATES: Sued in Calif. for Detaining Immigrant Children UNITED STATES: Osage County Commissioners to Discuss Class Action UNITED STATES: Court Issues Protective Order in "Banos" VOLKSWAGEN AG: Sanford Heisler Files Age Discrimination Action WALMART: Faces Class Action Over Shoplifting Extortion Scheme WELLS FARGO: Sued Over Jewelry-Financing Program Hidden Fees WH ADMINISTRATORS: Bid to Stay "Young" Denied WHIRLPOOL CORP: "Bodley" Suit Transferred to W.D. Mich. WIDEOPENWEST INC: Faces Class Action Over May 2017 IPO * Justice Kennedy's Departure Likely Favorable for Businesses * Most Retailers Face Title III Litigation Threat * State Privacy Laws' Unintended Consequences Can Be Far-Reaching * Supreme Court Empowers Corporations Over Individuals * TCPA Filings Down 17.7% to 1,696 Cases in May 2018 * Truck Purchasers in UK Seek to Certify First Class Action ********* 3M CO: CAP Set Up to Advocate for PFAS-Affected Communities ----------------------------------------------------------- Carrie Fellner, writing for Sydney Morning Herald, reports that a nationwide coalition will be launched to advocate on behalf of dozens of communities in Australia grappling with the devastating fallout of toxic firefighting contamination. The Coalition Against PFAS (CAP) will work to link residents in at least 90 contaminated areas across the country, with its foundation members a group of residents involved in class action lawsuits at Williamtown in New South Wales, Katherine in the Northern Territory and Oakey in Queensland. In all three towns, land and drinking water has been tainted with toxic per- and poly-fluoroalkyl chemicals (PFAS), manufactured historically by chemical giant 3M and used for decades in fire retardants at Australian military bases and fire stations. The coalition's president, Lindsay Clout, is from one of about 750 households caught in a plume of toxic contamination enveloping the Williamtown RAAF base, near Newcastle. The aim, he said, was to create a unified national voice that could force the government to clean up contaminated sites and compensate people for depressed property values and business losses. "While the United States has declared cleaning up PFAS contamination a 'national priority' and European countries move towards stating there is no safe level of exposure, our government has sat on its hands," Mr Clout said. Communities that were newly discovering the contamination were often isolated and needed clear information amid a mass of contradictory messages, he said. "Because of the difficulty and complexity people are not getting the information they want . . . that's the real issue here," he said. "Often we are the first point of contact for young mothers, the elderly and other community members seeking advice on how to protect their homes and families." It's understood the coalition is in talks with a similar grassroots organisation in the United States about opportunities for international co-operation. Australia is one of the only countries in the world not to have banned PFOS, arguably the most toxic chemical in the PFAS family, and the Department of Defence is aggressively defending several class action lawsuits for pollution stemming from its bases. The coalition's launch comes after a Fairfax Media investigation exposed a wave of cancers at a United States high school where the drinking water was contaminated with PFAS, and an alleged campaign over decades by 3M to hide the health dangers of the toxins. The series highlighted at least 90 sites across Australia where PFAS contamination is being investigated, including 25 in NSW and 10 in Sydney. The chemicals have been linked to suppression of the immune system, hormonal disruption and some forms of cancer, but the Department of Health maintains there is no conclusive evidence they cause "important" health effects. Among the coalition's representatives are Dianne Priddle and David Jefferis, who run a cattle stud near the town of Oakey in the Darling Downs. The contamination has been a "terribly heavy" burden for the couple, in their 60s. They have lost their asset base and have been forced to abandon the groundwater bores they used for irrigation. "We feel it as producers ourselves, and then we feel it again as it's our business and then because it's our home. So we feel it three times over," Ms Priddle said "Every year this has gone on, the financial impact is greater and greater. "The human cost has not come to the front of this, they're worrying about everything else except human lives . . . it seems to have been lost by all sides of politics." Litigation funder IMF Bentham, which has contributed funds towards the new coalition's website, is bankrolling the class actions at Williamtown, Oakey and Katherine. Multinational firm Dentons is running the Williamtown lawsuit, while personal injury specialists Shine Lawyers are prosecuting the action in Oakey. Fairfax Media understands Shine will file its suit in Katherine in the coming weeks, and is canvassing potential actions in Wodonga and Darwin. Shine Lawyers special counsel Joshua Aylward said hundreds of people from towns and cities around Australia had registered interest in pursuing legal action over the chemicals. "Just as with asbestos in 2003, the Commonwealth should ban the importation and manufacturing of this chemical, and place tighter controls around remediation of sites contaminated with PFAS," he said. "The evidence around 3M's conduct and cover up is only just beginning to come to light. The real concern in Australia is what science the Commonwealth is relying on, and the veracity with which they are reviewing the scientific literature. "What we see [is] that the 'acceptable' levels of PFAS in Australia are at odds with the rest of the western world, despite the plethora of science now available." [GN] ALLSCRIPTS HEALTHCARE: Seeks Dismissal of Ransomware Class Action ----------------------------------------------------------------- Evan Sweeney, writing for Fierce Healthcare, reports that Allscripts has asked an Illinois district judge to dismiss a class-action lawsuit filed after a ransomware attack took down the EHR vendor's servers for a week, adding that the dispute belongs in arbitration. The lawsuit revolves around a January cyber attack involving a new variant of the SamSam virus. The attack brought down the company's servers in North Carolina and knocked out access for nearly 1,500 physician practices. Several of those providers reverted to paper records and reported lost revenue and canceled procedures due to the disruption. In a court filing, Allscripts argued that Surfside Non-Surgical Orthopedics, the specialty practice that filed the lawsuit, intentionally sued the parent company of Allscripts Healthcare, LLC known as Allscripts Healthcare Solutions Inc. to avoid the arbitration clause outlined in its contract with the vendor. Allscripts Healthcare Solutions Inc. is a "non-operating holding company with only eight officers, no employees, and no products or customers," according to the filing. "Plaintiff apparently hopes that, by suing a party with which it has no contractual or other business relationship, it can avoid the contract that governs the provision of the services it received from LLC," Allscripts attorneys wrote in a court filing. The company added that even if Surfside sued the right company, the injury was caused by a criminal act rather than Allscripts' negligence. The company added that it explicitly warns about the inability to prevent all cyberattacks in its annual financial filings. "A criminal attack executed using a brand-new malware variant is precisely the kind of unforeseeable intervening act that breaks the chain of proximate causation," the court filing stated. In a subsequent filing, Surfside's attorneys maintained the parent company was to blame, adding that the company's "acts and/or admissions affected the circumstances that gave rise to the attack and its fall-out." Surfside originally argued that SamSam has been a known vulnerability since March 2016, and the company's "wanton, willful, and reckless disregard" led to service disruption. In response, Allscripts apparently couldn't resist a dig at Surfside, and any other providers that encountered disruptions from the attack. "Customers who had appropriate contingency plans in place--the existence of which practices may certify annually to the federal government in exchange for certain financial incentives--were minimally impacted by the attack," the company wrote in a footnote in its motion to dismiss. [GN] AMAZON.COM LLC: Court Enters Discovery Order in "Ortiz" Suit ------------------------------------------------------------ Magistrate Judge Maria-Elena James of the U.S. District Court for the Northern District of California has entered a discovery order the case, MICHAEL ORTIZ, Plaintiff, v. AMAZON.COM LLC, et al., Defendant, Case No. 17-cv-03820-JSW (MEJ) (N.D. Cal.). Ortiz and Defendant Golden State FC, LLC filed two joint discovery dispute letters. On March 7, 2018, the Court ordered the Plaintiff to produce his cell phone records to Golden State no later than April 6, 2018. As of May 23, 2018, the Plaintiff has not done so. He states these records are not in his possession or control, as he is not the account holder for the phone records. Rather, the account is in his non-party wife's name. He has attempted to obtain the phone records by requesting them from the carrier, but was unable to do so because he is not authorized to obtain such records from the carrier. The Plaintiff also sought to obtain the records through his wife, but has been unable to do so. The Plaintiff does not explain why this is. Golden State represents, and the Plaintiff does not dispute, that the Plaintiff did not inform Golden State that the cell phone records were in his wife's name and thus unobtainable until April 27, 2018 -- three weeks after the Court-ordered deadline for production. Indeed, the parties' prior discovery letter on this matter was silent as to this fact. The Plaintiff has also refused to provide his wife's name and address to allow Golden State to subpoena the records from her, despite the Plaintiff's representations that he would do so by May 8 and 16. The Plaintiff has known as early as September 18, 2017, and at the very latest, as of March 7, 2018, that he had to produce his phone records. He nevertheless waited three weeks past the Court-ordered deadline to inform Golden State that he could not obtain the records and the reason therefor. On Jan. 25, 2018, Golden State requested the Plaintiff's availability for deposition. Over a month later, on March 1, 2018, the Plaintiff confirmed his deposition would take place on April 23, 2018. On March 7, 2018, Golden State served a Notice of Deposition that Plaintiff's deposition would take place at the defense counsel's San Francisco office. On April 19, 2018, the Plaintiff cancelled the deposition because he moved to Los Angeles. Moreover, Plaintiff makes little effort to demonstrate undue hardship or exceptional or compelling circumstances. Golden State also requests an order that the Plaintiff appear at his deposition before he can compel or proceed with depositions of Golden State's witnesses. Magistrate Judge James ordered the Plaintiff to provide Golden State with his cell phone account holder's name and address so Golden State may subpoena the cell phone records from her. The Plaintiff will appear for a deposition in San Francisco, California. Within seven days of receiving the cell phone records, the parties will meet and confer, telephonically or in person, to schedule a date for the Plaintiff's deposition and any other depositions thereafter. The Magistrate Judge holds that the Plaintiff's discovery conduct is more appropriate to a party appearing in pro se than to a party represented by five attorneys licensed to practice before the Court. She admonishes the Plaintiff's attorneys to conduct themselves in a more professional manner going forward. She also reminds the Plaintiff and his attorneys that they have a responsibility to secure the just, speedy, and inexpensive determination of every action and proceeding. She ordered that the Plaintiff cannot wait until the eleventh hour -- let alone three weeks past a Court-ordered deadline -- to inform Golden State that he is unable to comply with his discovery obligations. These delays could have been avoided or reduced, had the Plaintiff promptly informed Golden State of his changes in circumstance that affected his ability to observe the Court's Order or to be deposed. The Court reserves the right to impose sanctions against the Plaintiff for violations of the Order and any future Court order, as well as any future discovery violations. A full-text copy of the Court's May 25, 2018 Discovery Order is available at https://is.gd/x6d392 from Leagle.com. Michael Ortiz, on behalf of himself and all others similarly situated, Plaintiff, represented by Corey Benjamin Bennett, Scott Cole & Associates, Scott Edward Cole, Scott Cole & Associates, APC & Cesar A. Alvarado, Law offices of Scott Cole. Amazon.com LLC, a Delaware Limited Liability Company & Golden State FC LLC, a Delaware Limited Liability Company, Defendants, represented by Eric Meckley -- eric.meckley@morganlewis.com -- Morgan, Lewis & Bockius LLP & Nancy Villarreal -- nancy.villarreal@morganlewis.com -- Morgan Lewis & Bockius LLP. ASSOCIATED CREDIT: Court Grants Summary in "Fuqua" FDCPA Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Washington granted in part Defendant's Motion to Dismiss for Failure to State a Claim in the case captioned JESSICA FUQUA, Plaintiff, v. ASSOCIATED CREDIT SERVICE, INC., a Washington corporation, and PAUL J WASSON and JANE DOE WASSON, Defendants, No. 2:17-CV-00324-SMJ (E.D. Wash.). The Plaintiffs alleges that the Defendants committed unfair and deceptive acts in violation of state and federal consumer protection laws in connection with its Associated's attempts to collect on debt owed by Fuqua. Fuqua alleges that Associated's actions under both claims violated the Fair Debt Collection Practices Act (FDCPA) and the Washington Consumer Protection Act (CPA). In support of their motion, the Defendants have asked the Court to consider documents and declarations not attached to Fuqua's complaint. In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and the documents attached thereto. A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it considers evidence outside the pleadings. The Court therefore considers the Defendants' motion as a motion for summary judgment. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Once a party has moved for summary judgment, the opposing party must point to specific facts establishing that there is a genuine dispute for trial. The Court rules that the Defendants are entitled to summary judgment on Fuqua's garnishment claim because Fuqua cannot show that the Defendants lacked reason to believe her account contained garnishable funds. Fuqua alleges that Associated violated the FDCPA by falsely asserting it had reason to believe Fuqua's bank account contained non-exempt funds in its application for writ of garnishment. It is not entirely clear from Fuqua's complaint or her response to Defendant's motion for summary judgment which sections of the FDCPA Fuqua believes the Defendants violated. Here, Associated has established that it had reason to believe Fuqua's checking account contained nonexempt funds. Before seeking the writ of garnishment, Associated ran a credit inquiry on Fuqua. The inquiry showed that Fuqua had a checking account, a credit card, and a loan with Spokane Teacher's Credit Union. Associated asserts that, because Fuqua had multiple lines of credit from the same institution, it inferred that Fuqua was likely employed. Associated did not have any notice that Fuqua had applied to exempt the funds in the account or that the account contained exclusively exempt funds. Associated therefore had reason to believe the account contained nonexempt funds. Fuqua cannot show that the Defendants' representations to the Spokane County District Court constituted a violation of the FDCPA. Fuqua next argues that Associated violated 15 U.S.C. Sections 1692e and 1692f, which prohibit the use of false or misleading statements when collecting a debt by attempting to recover an unnecessary notary fee. Washington law allows a judgment creditor to recover from the judgment debtor taxable court costs and fees. In Kirk v. Gobel, 622 F.Supp.2d 1039 (E.D. Wash. 2009), held that a debt collector's claim to recover unregistered process server fees was unfair and misleading in violation of the FDCPA. Fuqua attempts to characterize Associated's misrepresentation as an effort to collect an illegal notary fee. If this were the case, Associated's actions would more closely resemble those in Kirk, where the judgment creditor attempted to seek reimbursement for fees to which he was under no circumstances entitled. However, Fuqua's characterization finds no support in the facts. Associated has produced the undisputed declarations of David Solberg, Chad Solberg, and Cynthia Henderson, which establish that Associated never incurred, nor attempted to seek reimbursement for, a notary fee. Even taken in the light most favorable to Fuqua's claim, the undisputed facts show that Associated presented the court with an accurate, though embellished, statement of the costs to which it was legally entitled. While the Court certainly does not condone Associated's misrepresentations to the judiciary, the misrepresentation was not misleading for the purposes of the FDCPA. The Court finds that Associated's statement regarding the $5 Notary fee is not a material misrepresentation within the meaning of the FDCPA. Associated is therefore entitled to summary judgment on this claim. Accordingly, the Defendants' Motion and Memorandum to Dismiss for Failure to State a Claim, or, Alternatively Motion for Summary Judgment is granted in part. The Court enters summary judgment in favor of Defendants on Fuqua's FDCPA claims and dismissed Fuqua's remaining state law claims without prejudice. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ycum5o5h from Leagle.com. Jessica Fuqua, and all others similarly situated, Plaintiff, represented by Kirk D. Miller, Kirk D Miller PS. Associated Credit Service Inc, a Washington corporation, Paul J Wasson, husband & Jane Doe Wasson, wife, Defendants, represented by John Gregory Lockwood, Law Office of J Gregory Lockwood PLLC. AUBURN, NY: Residents File Lawsuit Over Falls Landfill Stench ------------------------------------------------------------- Philip Gambini, writing for Niagara Gazette, reports that with a law firm partially based in the City of Auburn, a local resident has filed a class action lawsuit on behalf of at least 300 individuals plagued by a rotting stench emitted from the Allied Waste Landfill on Niagara Falls Boulevard. Emily Hickey is the named plaintiff in the suit, filed by attorney Jan Smolak, Esq. -- smolak@michaels-smolak.com -- in late June, which alleges the 385-acre dump operator has failed to install adequate systems to neutralize odors created by the emission of hydrogen sulfide. "Resident complainants describe the sickening odors as obnoxious, foul and nauseating," the suit said, characterizing the stench as "similar in smell to that of wet paper pulp, rotten eggs or decomposing flesh." The plaintiffs claim the stench forces them indoors, precludes them from hosting company in their houses, and "virtually renders them entrapped in their own homes." Smolak did not return a request for comment. Late last year, three area residents spoke to the Niagara Gazette regarding their experience near the landfill. Ron Licht was among them and described a drive down Military Road that made his stomach heave, causing him to pull over the car and vomit on the roadside. It happened again when Licht was on his way to a department store with his 4-year-old daughter in the back seat. The smell had her "almost gagging a little bit it was so bad," he said. The Department of Environmental Conservation fined the facility $75,000 last year after filing a "Notice of Violation" against the company for odor concerns. Agency investigators have previously confirmed the site as a "primary source" of "sulfur and garbage-type" stench complaints. The consent order also came with a set "of requirements to address the numerous odor complaints from the public that DEC has tracked related to this facility." The order called for: the installation of a gas control system; implementation of a controlled burn protocol for certain gas emissions; initiation of a pilot program for odor remediation of landfill leachate associated with a sulfur-like smell; and a consideration to restrict certain odor-causing materials the landfill presently accepts. In addition, the facility was told to study and "identify all potential air contaminant emissions to determine what additional controls should be installed." The lawsuit alleges those precautions were not taken, but a spokesperson said that is not the case. "Allied is currently in compliance with New York State Department of Environmental Conservation's Order on Consent," the spokesperson said in an email, adding the agency would not comment further because the matter concerned "private litigation." A public relations representative with Allied was not immediately available for comment on June 28.[GN] BANK OF AMERICA: Court Denies Bid to Amend "Jackson" Suit --------------------------------------------------------- Magistrate Judge Hugh B. Scott of the U.S. District Court for the Western District of New York denied the Jacksons' motion to amend the case, Bobbi Jackson and Matthew Jackson, Decision and Order Plaintiffs, v. Bank of America, N.A., Defendant, Case No. 16-CV- 787G (W.D. N.Y.). Bobbi and Matthew Jackson took out a mortgage loan to buy a house but fell behind in their payments when Matthew lost his job. Once their finances improved, the Jacksons applied for loss mitigation to help them make up for payments that were past due and avoid foreclosure. The lender, Defendant Bank of America, allegedly mishandled the application process in a way that ran afoul of the Real Estate Settlement Procedures Act of 1974 ("RESPA"), and one related regulation. The Jacksons commenced the litigation by filing a potential class-action complaint on Sept. 30, 2016. They now have filed a non-dispositive motion to amend the complaint to add another set of lead Plaintiffs, McKinley and Angel Moses from Illinois. The Jacksons believe that adding the Moses Plaintiffs will promote judicial economy by avoiding the filing of an identical case in Illinois. At the same time, they argue that amendment will not cause any delay or prejudice to the Bank. The Bank opposes amendment because, in their view, the Court lacks personal jurisdiction over the Moses plaintiffs. The Bank raises additional objections about delay and prejudice that would result. Chief Judge Frank P. Geraci has referred the case to the Court under 28 U.S.C. Section 636(b). The Court heard oral argument on May 3, 2018. Magistrate Judge Scott finds that the Bank is not incorporated in New York and does not have its principal place of business there. The Jacksons have indicated, and the Bank does not contest, that the Bank has some physical presence in New York and conducts some business there. They've not shown that the Bank's activities or presence in New York constitute a majority or at least a substantial plurality of its overall activities. Discovery to that end will not help; the Bank is a publicly traded corporation, and if most of its overall activities occurred in New York then the Jacksons should have been able by now to use publicly available information to make at least a prima facie demonstration to that effect. Under these circumstances, the Magistrate Judge holds that the Bank does not qualify as an "exceptional case" that would support a finding of general jurisdiction. Turning to specific jurisdiction, the Magistrate Judge finds that the Jacksons have not set forth any information indicating that the Bank did anything with or to the Moses Plaintiffs in New York that would lead to specific jurisdiction. The Jacksons have not shown that the Moses Plaintiffs applied for or received a mortgage loan in New York. The Moses Plaintiffs do not live in New York, did not fall behind in their payments in New York, and did not apply for loan modification in New York. With neither general nor specific jurisdiction present, the Magistrate Judge holds that the Court lacks personal jurisdiction over the Moses Plaintiffs. Without personal jurisdiction, any amendment to the complaint to add claims by the Moses Plaintiffs would be futile. Accordingly, he will deny the pending motion without the need to consider any of the other arguments from the parties. For all of the foregoing reasons, Magistrate Judge Scott denied the Jacksons' motion to amend the complaint. A full-text copy of the Court's May 25, 2018 Decision and Order is available at https://is.gd/Jyo8fF from Leagle.com. Bobbi Jackson & Matthew Jackson, Plaintiffs, represented by Catherine Creighton -- ccreighton@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Ian H. Hayes -- ihayes@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Katherine Aizpuru -- kaizpuru@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Annick Persinger -- apersinger@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Geoffrey G. Bestor -- gbesq@bestorlaw.com -- The Bestor Law Firm & Jonathan K. Tycko -- jtycko@tzlegal.com -- Tycko & Zavareei LLP. Bank of America, N.A., Defendant, represented by Keith E. Levenberg -- klevenberg@goodwinlaw.com -- Goodwin Procter LLP, Courtney L. Hayden -- chayden@goodwinlaw.com -- Goodwin Procter LLP & James W. McGarry -- jmcgarry@goodwinlaw.com -- Goodwin Procter LLP. BAR 20: Aug. 9 Mandatory Scheduling Conference in "Maciel" ---------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order on Second Stipulation to Continue Mandatory Scheduling Conference in the case captioned JOSE MACIEL and ELVIS BONILLA, on behalf of themselves, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, Plaintiff(s), v. BAR 20 DAIRY, LLC, a California limited liability company; and DOES 1 through 50, inclusive, Defendant(s), Case No. 1:17-cv-00902-DAD-SKO (E.D. Cal.). The Mandatory Scheduling Conference is continued to August 9, 2018 at 10:15 A.M. The parties are directed to file their joint scheduling report no later than August 2, 2018. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ydcahkdu from Leagle.com. Jose Maciel, on behalf of himself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorney General Act of 2004, Plaintiff, represented by Caroline Tahmassian Zarneh -- caroline@spivaklaw.com -- The Spivak Law Firm & David Glenn Spivak -- david@spivaklaw.com -- The Spivak Law Firm. Elvis Bonilla, on behalf of himself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorney General Act of 2004, Plaintiff, represented by Eric Bryce Kingsley -- eric@kingsleykingsley.com -- Kingsley & Kingsley APC & Kelsey M. Peterson-More -- kelsey@kingsleykingsley.com -- Kingsley & Kingsley. Bar 20 Dairy, LLC, a California limited liability company, Defendant, represented by Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation, PC, Joseph Vidal Macias -- joseph.macias@maximintegrated.com -- Sutton Hague Law Corporation, PC, S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson, Sutton Hague Law Corporation. BOFI HOLDING: Ballard Spahr Attorney Discusses Class Action ----------------------------------------------------------- Evan W. Krick, Esq. -- kricke@ballardspahr.com -- of Ballard Spahr LLP, in an article for The National Law Review, wrote that in February 2017, "we blogged about a whistleblower complaint filed against Bank of the Internet ('BofI') by its former internal auditor. The blog post addressed what the whistleblower believed was BofI's wrongdoing in relation to responding to a subpoena from the Securities and Exchange Commission ('SEC'), and when dealing with a certain loan customer in potential violation of the Anti-Money Laundering ("AML") rules of the Bank Secrecy Act ('BSA')." "Less than two months after our blog post, three BofI stockholders brought a putative class action complaint against BofI seeking to represent a class of individuals who purchased BofI stock, in a case captioned Mandalevey v. BofI Holding, Inc. These plaintiffs alleged BofI violated the Securities Exchange Act through, among other alleged misrepresentations, falsely denying the company was under investigation for money laundering violations. A federal court recently dismissed all claims against BofI. "This post focuses on that decision, the allegations relating to the federal investigation of BofI, and the Court's interesting reasoning in dismissing these plaintiffs' claims. Although the bank won this latest round, the saga involving BofI underscores how financial institutions face an increasing risk that alleged AML and Counter-Terrorism Financing ("CTF") violations will lead to follow-on allegations of securities law violations -- allegations brought not only by the government, but also by investor class action suits. " Background On March 31, 2017, the New York Post published an article entitled "Feds Probe [BofI] for Possible Money Laundering." The article stated the Department of Justice was leading an investigation into "possible money laundering" at BofI. In addition to detailing allegations against the company, the article provided the response of BofI's Chief Legal Counsel. According to the article, he initially refused to answer questions about any possible criminal probe. However, he then provided a written statement to the Post, which read, "There are no material investigations that would require public disclosure and BofI remains in good regulatory standing." BofI also issued a press release the same day. The press release addressed certain of the allegations in the Post article, and added, "the Company has received no indication of, and has no knowledge regarding, such purported money laundering investigation." By the end of March 31, BofI stock dropped 5.26%. Interestingly, during earnings conference calls in 2016 and in a Form 8-K filed in March 2016, BofI had represented that a major law firm had performed an internal investigation into the whistleblower's allegations and found no support for the conclusion that the bank or management had engaged in wrongdoing. On October 25, 2017, the New York Post published another article about BofI, this one entitled, "Bank of Internet Was Under 16- Month SEC Investigation." As the title suggests, the article stated the SEC had investigated BofI for 16 months, but the investigation ended several months earlier without the SEC taking any action. Notably, the article's information was based upon "government documents" obtained "through the Freedom of Information Act." On October 26, BofI stock fell 4.57%. The Plaintiffs' Allegations and the Court's Analysis Referencing these two articles, the plaintiffs in Mandalevey v. BofI Holding, Inc. alleged BoFi's statements from March 31, 2017 must have been false. To support their claim, the plaintiffs also provided a statement from a "confidential witness" who stated there was "no way" BofI officials could not have known about the investigation. The Court agreed with the plaintiffs, stating they "sufficiently demonstrated" the March 31 statements must have been false for the purposes of a motion to dismiss (in which a court reviews a complaint only to determine if it contains sufficient facts which, if accepted as true, state a claim to relief that is plausible on its face). Another step, however, still was necessary to sufficiently allege a claim under the Securities Exchange Act: the plaintiffs were required to allege adequately "loss causation." "Loss Causation" To plead "loss causation," a plaintiff must allege plausibly that the defendant's fraud was revealed to the market and caused the resulting losses. For this element, the Court focused on the plaintiff's ability to identify a "corrective disclosure." The plaintiffs alleged the October 25 article was the relevant "corrective disclosure" for the March 31 misrepresentation. BofI countered by arguing that the October 25 article did not disclose any previously non-public information. That is, BofI pointed to the fact the October 25 article relied on documents obtained through FOIA. This argument raised the novel question: Is information available from a federal agency through FOIA "publicly available"? Ultimately, the Court determined information obtained by FOIA is "publicly available" and therefore the information is deemed to be incorporated into the stock's market price. The Court reasoned that, "in the nearly seven months between BofI's denial and the October 25 article, a market participant would have made the sensible step of asking the SEC whether BofI's denial was accurate." Recognizing a market participant "would have had to jump through a bureaucratic hoop" to obtain this information, that information is nevertheless considered "public" for the purpose of the plaintiff's claims because market participants are always presumed to be "information-hungry." For a company facing a securities class action case, the Mandalevey decision provides a potential new defense -- that information is publicly available via a FOIA (or other public records) request, and therefore not actionable. Perhaps more important is the public relations takeaway for a company under investigation by law enforcement. BofI's initial response in its call with the Post reporter was to say nothing. Only later did it make the statements that the Court determined could be found to be demonstrably false. And despite BofI stating it was unaware of an investigation, BofI's stock dropped significantly in the wake of the Post's article. Needless to say, a company faces a difficult balance when responding to a public report of an ongoing investigation, whether it involve allegations of money laundering or otherwise. Although BofI's defense to date has been successful, the effects of an alleged false statement regarding an ongoing investigation are often felt well into the future. Moreover, and regardless of the actual merits of the complaint against BofI or other banks, the mere existence of such shareholder lawsuits reflects that financial institutions must concern themselves not only with FinCEN, the Department of Justice, and the relevant examiner, but also with putative investor plaintiffs and the SEC -- thereby increasing the stakes regarding decisions over the disclosure in SEC filings of possible violations of AML/BSA requirements. [GN] CAPITEC BANK: Summit Financial Abandons Case Over Payday Loans -------------------------------------------------------------- Hanna Ziady, writing for Business Day, reports that Summit Financial Partners has abandoned all legal cases against Capitec Bank, patching up a relationship that turned sour nearly three years ago when the consumer lobby group took the bank on over its payday loans, which have since been discontinued. Summit said at the time the loans were reckless because they failed to verify the financial standing of borrowers. The news will come as a blow to short-selling outfit Viceroy Research. In a February report that torpedoed Capitec's share price, Viceroy said Summit's cases could trigger a class-action lawsuit that would require Capitec to refund a minimum R12.7bn in initiation fees associated with the lending product, known as a multi-loan. But that is unlikely after Summit and Capitec said on June 29 they had reached an out-of-court settlement. Capitec and Summit had agreed to work together on consumer financial literacy programmes and debt relief solutions, Capitec chief financial officer Andre du Plessis said. "The only party who is benefiting is the consumer," Summit CEO Clark Gardner said. Consumers remain heavily indebted following an unsecured lending boom that began in 2010 and peaked in March 2014, when outstanding unsecured loans in SA hit a record high of R172.97bn. The number of consumers with impaired credit records, indicating three outstanding payments, adverse listings or judgments, reached a high of 10.53-million in June 2015. At the end of March 2018, this figure had fallen to 9.7-million, according to figures from the National Credit Regulator. Meanwhile, after falling for a number of years, outstanding unsecured loans have crept up to R172.56bn. Despite high unemployment, the country has about 25.46-million consumers with credit. Mr. Gardner admitted the decision to settle had been difficult, but Summit could not compete with Capitec's legal team. The consumers whose cases Summit was fighting were in a "significantly better position" and Summit was not "handcuffed to the deal", said Mr. Gardner. "If we disagree with them we'll be back in court." Capitec's multi-loan product allowed a consumer who had qualified in-branch for a loan to take out multiple loans thereafter by answering three questions at an ATM. Summit said these loans caused consumers to be overindebted and were therefore reckless. Summit also argued that charging an initiation fee on each new loan was unfair but the regulator upheld that. Capitec discontinued the multi-loan product in February 2016, after amendments to the National Credit Act put stricter affordability assessment rules. [GN] CERNER CORP: Judge Approves $4.5MM Class Action Settlement ---------------------------------------------------------- Elise Reuter, writing for Kansas City Business Journal, reports that Cerner Corp. recently settled another long-running class- action lawsuit, to the tune of $4.5 million. U.S. District Judge Fernando Gaitan Jr. approved the terms of the settlement on June 11, which includes $4.5 million for class members and up to $2 million in attorneys' fees. The three-year-old lawsuit filed in U.S. District Court for the Western District of Missouri was based on overtime complaints by two former Cerner employees who worked as salaried service center analysts. According to Healthcare IT News, they alleged that Cerner's payroll processing system resulted in overtime wages being miscalculated and that overtime wages were received a full pay period late. More than 1,400 class members elected to participate in the lawsuit, according to court documents. Cerner has asked the court to seal the terms of the settlement. The case is similar to another class-action suit Cerner recently settled, brought forth by a former delivery consultant for the company. The lawsuit alleged Cerner misclassified its employees, and that they should not be exempt from overtime pay. Cerner is seeking to seal the terms of that settlement. [GN] CHICAGO BRIDGE: Court Dismisses "Kinra" ERISA Suit -------------------------------------------------- The United States District Court for the Southern District of New York granted Defendant's Motion to Dismiss the Amended Class Action Complaint in the case captioned RAMESH C. KINRA, et al., Plaintiffs, v. CHICAGO BRIDGE & IRON CO., et al., Defendants, No. 17 Civ. 4251 (LGS)(S.D.N.Y.). The Plaintiff brings this action against the Defendants and others pursuant to the Employment Retirement Income Security Act (ERISA), for breach of a fiduciary's duty of prudence and duty of loyalty, and for failure to monitor. The Plaintiff alleges that the Defendants breached their duties to the Plans for continuing to offer the common stock of CB&I (Company Stock) as an investment option in the Plans when the Defendants knew or should have known that the price of the stock was improperly inflated. Effect of Rule 17 on Subject Matter Jurisdiction Federal Rule of Civil Procedure 17(a)(3) states that the court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. Rule 17 and This Case In this case, the Complaint is dismissed for lack of subject matter jurisdiction because the original plaintiff did not have Article III standing and that defect cannot be cured with a Rule 17 substitution of a new plaintiff. Standing is to be determined as of the commencement of suit. The Initial Complaint was filed on June 7, 2017, in the name of John J. Giantonio as the named Plaintiff on behalf of a putative class. On August 22, 2017, apparently because Mr. Giantonio could not substantiate that he was a participant in the Plans and therefore a class member, the Plaintiff amended the Initial Complaint to substitute Plaintiff Kinra for Plaintiff Giantonio. But because Giantonio was not a participant in the Plans, he had no standing to bring claims against the Defendants either individually or on behalf of a class. For these reasons, a Rule 17 substitution of plaintiffs cannot rectify Giantonio's lack of standing. The initial action was a nullity from the outset, and there was no action into which Plaintiff Kinra can be substituted. Accordingly, the 12(b)(1) motion is granted. Breach of the Duties of Prudence and Loyalty In the alternative, and to the extent that the Court does have subject matter jurisdiction over this action, the Complaint is dismissed for failure to state a claim under Rules 12(b)(6) and 12(c). A full-text copy of the District Court's May 24, 2018 Opinion and Order is available at https://tinyurl.com/y9b6yl9q from Leagle.com. John J. Giantonio, on behalf of the Chicago Bridge & Iron Savings Plan, The Shaw Group Inc. 401(k) Plan, himself and a class consisting of similarly situated participants of the Plans & Ramesh C. Kinra, Plaintiffs, represented by Michael Jason Klein - - ONVI@ssbny.com -- Stull Stull & Brody. Chicago Bridge & Iron Company, Investment Committee, Plan Administrator, Stephen H. Dimlich, Jr., Westley S. Stockton & Sheila Feldman, Defendants, represented by Darren E. Nadel -- dnadel@littler.com -- Littler Mendelson, PC, David Charles Gartenberg -- dgartenberg@littler.com -- Littler Mendelson, PC & Pamela S. Reynolds -- preynolds@littler.com -- Littler Mendelson, P.C. Luciano Reyes, Travis Stricker, Brian Mims, Dennis Fox, Scott Waguespack, Misty Palmer, Lance Bowling & Joe Christaldi, Defendants, represented by David Charles Gartenberg, Littler Mendelson, PC. CHICAGO BRIDGE: Loses Bid to Dismiss Securities Fraud Suit ---------------------------------------------------------- The United States District Court for the Southern District of New York denied Defendant's Motion to Dismiss the case captioned IN RE CHICAGO BRIDGE & IRON COMPANY N.V. SECURITIES LITIGATION, No. 17 Civ. 1580 (LGS)(S.D.N.Y.). Plaintiff City of Dearborn Heights Act 345 Police & Fire Retirement System, individually and on behalf of all other persons similarly situated, bring this putative class action against the Defendants, alleging violation of Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 (Exchange Act). The case arises from the Defendants' alleged misrepresentations and omissions in CBI's financial statements and elsewhere regarding losses in CBI's construction of two nuclear plants. The Complaint's allegations of material omissions and misstatements principally fall into three categories. The first category is that CBI recorded unapproved change orders as assets and revenue in the financial statements contained in its 10-Ks and 10-Qs in violation of GAAP (Change Order Statements). The second category of alleged misstatements involved the overstatement of goodwill in CBI's financial statements contained its Forms 10-Q and 10-K (Goodwill Statements). The overstatement resulted in part from CBI's improper recording of purchase price adjustments in the year following the Shaw acquisition. The third category of alleged misstatements concerns the status of the Nuclear Projects and CBI's failure to disclose mounting problems and their impact on profitability during conference calls with investors and analysts (Progress Statements). Scienter The Complaint alleges scienter. In addition, the Complaint relies on confidential witnesses (CWs). At least three CWs, who worked at the Vogtle and V.C. Summer Plants, including CW 2 who worked as a mechanical engineer, reported that engineering teams filed weekly reports in a company system called Sharepoint, where Defendants could and did access them. Reliance and Loss Causation The Plaintiffs purchased CBI stock during the Class Period. Following unfavorable media reports about safety code violations at the Vogtle and V.C. Summer Plants, cost overruns and unapproved work orders, CBI's stock price decreased from $83.30 to $76.72 per share. Prescience Point Report, CBI's stock price dropped from $74.46 to $68.26 per share. Statute of Limitations A private right of action under Section 10(b) and 10b-5 may be brought not later than the earlier of two years after the discovery of the facts constituting the violation or five years after the violation. Section 10(b) Violation Material Omissions and Misrepresentations A statement or omission is materially misleading when there is a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available to the market. In Omnicare, Inc. v. Laborers Dist. Council Const. Indus., 135 S.Ct. 1318 (2015), the Supreme Court held that an opinion statement is actionable if (1) the speaker did not hold the belief she professed, (2) the supporting facts she supplied were untrue, or (3) the stated opinion, though sincerely held and otherwise true as a matter of fact, omitted information whose omission made the stated opinion misleading to a reasonable investor. In its Forms 10-K and 10-Q filed during the Class Period, CBI reported significant amounts of unapproved change orders as assets and revenues, by recording them as contract price adjustments. CBI thus implicitly represented that collecting on these change orders was probable, and CBI explicitly stated that recorded unapproved change orders and claims reflect our best estimate of recovery amounts. The Court finds that the Complaint adequately alleges that these statements of opinion were false and that the Defendants knew that they were false. The Complaint alleges that CBI knew that its claim for the unapproved change orders was disputed and the subject of litigation, and that CBI lacked a legal basis for the claims, which were the result of deficiencies in CBI's performance. The EPC Agreements provided that CBI was not entitled to recover if the change orders were a result of CBI's failure to comply with NRC standards or failure to produce requisite manufacturing parts. The Nuclear Projects' cost overruns and delays allegedly were due to the Lake Charles facility's failure to produce necessary parts, CBI's Stop Work Order and CBI's inability to properly track and store the manufactured parts. The Goodwill Statements Under SFAS No. 141, goodwill is an asset representing the future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Here, the Complaint includes factual allegations that raise an inference that the Defendants intentionally or recklessly failed to write down their goodwill accounting. GAAP requires a company to assess goodwill at least annually and whenever an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. The Complaint alleges that goodwill was not written down until the sale to Westinghouse, despite known delays, cost overruns, growing liability disputes and CBI's contemplation and eventual execution of a quitclaim deed to relieve itself of liabilities associated with Shaw. These allegations are sufficient to survive a motion to dismiss. Scienter The Complaint sufficiently pleads scienter as to each Defendant. A plaintiff may satisfy the scienter requirement by alleging facts (1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness. The Individual Defendants' Scienter The Court finds that the Complaint's allegations of recklessness are sufficient to support an inference of scienter that is at least as compelling as any opposing inference one could draw from the facts alleged. First, the CEO, CFO and Chief Accounting Officer not only had access to the facts underlying the Company's financial reporting, they were responsible for it and attested to its accuracy by signing or certifying the Company's Forms 10-K and 10-Q. Second, the CWs stated that the Individual Defendants had access to and accessed monthly reports that contained details on (1) cost overruns that dated back to 2009 and that continued growing through 2015; (2) overruns and delays caused by the Lake Charles facility's failure to produce conforming materials for the Nuclear Projects; (3) overruns and delays caused by CBI's inability to properly track and ship materials; (4) overruns and delays caused by CBI's inability to properly store materials; and (5) delays caused by the Stop Work Order on the Lake Charles facility. Third, the monthly reports on Sharepoint, the Stop Work Order, the NRC investigations, and the unapproved change orders in dispute with the Vogtle and V.C. Summers Plants' owners put the Individual Defendants on notice that many of the unapproved change orders should not have been accounted for as additional income or assets. Corporate Scienter Because the Complaint adequately alleges scienter as to the Individual Defendants, CBI's scienter is inferred from theirs. Accordingly, the Defendants' motion to dismiss is denied. A full-text copy of the District Court's May 24, 2018 Opinion and Order is available at https://tinyurl.com/y9pxec6h from Leagle.com. ALSAR Ltd. Partnership, Lead Plaintiff, represented by Kim Elaine Miller, Kahn Swick & Foti, LLC. City of Dearborn Heights Act 345 Police & Fire Retirement System, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Samuel Howard Rudman -- Srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Thomas Hubbell, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Shannon Lee Hopkins -- shopkins@zlk.com -- Levi & Korsinsky, LLP. Chicago Bridge & Iron Company N.V., Philip K. Asherman & Westley S. Stockton, Defendants, represented by David D. Sterling -- david.sterling@bakerbotts.com -- Baker Botts, L.L.P., Douglas W. Henkin -- douglas.henkin@bakerbotts.com -- Baker Botts LLP & Rebeca Aizpuru Huddle -- rebeca.huddle@bakerbotts.com -- Baker Botts LLP. Ronald A. Ballschmiede, Defendant, represented by Douglas W. Henkin, Baker Botts LLP, Robert Allen Horowitz -- horowitzr@gtlaw.com -- Greenberg Traurig, LLP, David D. Sterling, Baker Botts, L.L.P., James Russell Leahy -- leahyj@gtlaw.com -- Greenberg Traurig & Nicole Shirley Bakare -bakaren@gtlaw.com -- Greenberg Traurig. John J. Giantonio, Interested Party, represented by Michael Jason Klein -- ONVI@ssbny.com -- Stull Stull & Brody. COMCAST: Faces Class Action Over Xfinity Mobile Fraud ----------------------------------------------------- Chris Mills, writing for BGR, reports that Comcast has grown its wireless reseller Xfinity Mobile at speed by leveraging its existing cable and internet customer base, but a class-action lawsuit spotted by DSL Reports alleges that the company may have been so keen to sign up new customers, it didn't fully protect their data or verify new accounts and phone purchases. According to the class-action suit, unauthorized users (read: scammers) were able to open Xfinity Mobile postpaid accounts for existing Comcast customers online, using easily-available information. A postpaid wireless account fraudulently opened in your name is bad news, as it can affect your credit score, and according to the lawsuit, Comcast didn't do enough to prevent fraud. "In an apparent effort to grow its fledgling mobile business segment, Comcast leveraged the personal account information of its existing cable and internet customers to allow the opening of XFINITY Mobile accounts through its online customer portal," the lawsuit says." Unauthorized users infiltrated Comcast's XFINITY Mobile accounts, enabling them to purchase cell phones through the website using already established personal account information from customers' cable and internet accounts." In a statement to DSL Reports, Comcast said that "We are aware of the lawsuit that was filed in the Northern District of Illinois and we are in the process of investigating the claims. Fraud is an issue across the wireless industry, and there is no indication of a breach of our systems. We are prepared to vigorously defend against this action. However, given the pending nature of the litigation, we cannot comment further at this time." [GN] COMMONWEALTH BANK: Faces Shareholder Class Action ------------------------------------------------- Ambar Warrick, writing for Reuters, reports that Commonwealth Bank of Australia said on July 2 it had been served with a class action lawsuit filed by Phi Finney McDonald on behalf of certain shareholders. The class action was filed on behalf of certain shareholders who acquired an interest in CBA's shares between June 16, 2014 and Aug. 3, 2017, the bank said in a statement. The bank added that the proceeding involved similar claims to the shareholder class action commenced by Maurice Blackburn against the bank in October 2017, and that it intended to "vigorously" defend the claim. Maurice Blackburn had filed a class action against CBA on behalf of shareholders, accusing the lender of failing to disclose widespread breaches of anti-money-laundering rules. [GN] CREDIT UNION: Put Under Liquidation, Class Action Pending --------------------------------------------------------- Jim DuPlessis, writing for Credit Union Times, reports that Kentucky regulators liquidated the Louisville Metro Police Officers Credit Union on June 29 after it had burned through $5.4 million in losses in its last two reported quarters as state and federal agents investigated allegations of internal theft. The Kentucky Department of Financial Institutions on June 29 appointed the NCUA as liquidating agent for the federally insured credit union, and it allowed Commonwealth Credit Union of Frankfort, Ky. ($1.2 billion in assets, 98,376 members) to acquire the Louisville credit union's 3,349 members, shares and $20 million in assets for terms that were not disclosed. In the six months that ended March 31, the assets of Louisville Metro Police Officers CU fell nearly $7.7 million, or more than a quarter of their total. The decline included about $4.4 million in loans. Its delinquencies rose from a reported 1.75% in September 2017 to 9% by Dec. 31. The delinquency rate had fallen to 4.1% by March 31. No charges have yet been reported from the investigation started by state authorities and first revealed in December 2017. Members filed a class-action lawsuit in March alleging fake loans had been taken out in their names. The NCUA conserved Louisville Metro Police Officers Credit Union in December just 10 days after the Kentucky Department of Financial Institutions disclosed that it had turned over to the FBI an investigation of internal theft. "The decision to liquidate Louisville Metro Police Officers Credit Union and discontinue its operations was made after determining the credit union was insolvent and had no prospect for restoring viable operations," the NCUA said in a news release emailed at 5 p.m. In its September 2017 call report -- the last before it was conserved -- the credit union's situation seemed rosy, with a modest profit and a net worth ratio over 11%. By the end of December, its "well capitalized" status had dissolved into "critically undercapitalized" with a ratio approaching -2%. By March it was nearly -11%. Louisville generated a $3.7 million loss in the last three months of 2017 aided by a $218,897 spike in loan loss provisions and a $3.5 million charge under the NCUA account called "miscellaneous operating expenses," a category that was just over $12,000 for the first nine months of the year. In the first quarter, the main contributors to the credit union's $1.7 million loss were a $171,854 loan loss provision and $1.4 million in miscellaneous operating expenses. [GN] CRST EXPEDITED: Court Certifies Truck Drivers Class --------------------------------------------------- The United States District Court for the District of Massachusetts granted Plaintiffs' Motion to Certify Collective Action under the Fair Labor Standards Act (FLSA) in the case captioned JUAN CARLOS MONTOYA, on behalf of himself and all others similarly situated, Plaintiff, v. CRST EXPEDITED, INC., and CRST INTERNATIONAL, INC., Defendants, Civil Action No. 16- 10095-PBS (D. Mass.). Plaintiff Juan Carlos Montoya alleges that Defendants CRST Expedited, Inc., and CRST International, Inc. (CRST), underpaid their long-haul truck drivers, misled them regarding the costs of driver training, and imposed excessive charges to recoup those costs in violation of the federal Fair Labor Standards Act (FLSA) and Iowa law. Montoya's Phase 1 training took place in Marine City, Michigan. He signed a Training Agreement that bound him, upon breach or termination, to pay CRST $3,950, plus advances for training expenses, plus interest. On the same day, he signed an Assignment of Wages and Payroll Deduction Agreement, permitting CRST to recover its advances by deducting $40 per week from his future earnings. Montoya then traveled to Cedar Rapids, Iowa, for Phase 2 orientation. Montoya signed an Employment Contract requiring him, upon breach or termination, to pay CRST $6,500, plus the other amounts discussed above. Montoya was not paid wages during Phases 1 and 2. The key collective-action question, then, is whether the potential members of the group have shown that they are similarly situated for purposes of the FLSA. The standard policies and practices include: -- The terms of the Training Agreement and Employment Contract, which bind drivers to work for CRST for eight or 10 months while repaying certain expenses advanced by CRST, or else owe CRST thousands of dollars for tuition and training expenses, plus interest. -- The practice of treating Phase 1 and Phase 2 drivers as unpaid trainees. -- The practice of paying team drivers in Phase 3 and Phase 4 according to a split mileage pay scale starting at 25 cents per mile. -- The company's position that sleeper-berth time is never compensable. -- The practice of deducting costs for training, drug tests, physical examinations, transportation, and lodging from drivers' wages. The Court finds that the Plaintiff has made a substantial showing that these legal issues are likely to be shared between Montoya and the proposed group of opt-in plaintiffs. Accordingly, the proposed opt-in plaintiffs are similarly situated for purposes of an FLSA collective action. The Defendants' arguments to the contrary are unavailing. Their most compelling point is that even if CRST drivers sometimes were not paid minimum wage, an individualized inquiry would be required to identify those instances. But claimants are similarly situated in challenging the standardized policies and practices governing the Driver Training Program. This is true even if their individual damages must be separately calculated. Such calculations do not necessarily defeat a similarly situated finding. The Defendants describe a variety of fact-specific scenarios (such as experience-based pay, per-diem pay, and payroll advances) that may determine how much a driver was paid during a particular pay period. However, they do not suggest that these intricacies could not be accounted for via existing payroll records should the case reach the damages phase. Further, based on the record currently before the Court, it does not appear that the complexity of CRST's compensation system makes it any less uniformly applied. Accordingly, the Plaintiff's motion to certify a collective action under the FLSA is allowed. Class Certification on State Law Claims In this case, the Defendants do not dispute numerosity, commonality, or ascertainability. Typicality requires that the class representative's injuries arise from the same events or course of conduct as do the injuries of the class, but his claims need not be identical to those of absent class members. Adequacy occasions a two-part inquiry. First, the Court must determine whether any potential conflicts exist between the named plaintiffs and the prospective class members. Second, it must ask whether the named plaintiffs and their counsel will prosecute their case vigorously. In this case, the Plaintiff also must meet the two additional requirements of Rule 23(b)(3): predominance and superiority. Predominance requires the Plaintiff to demonstrate that the questions of law or fact common to class members predominate over any questions affecting only individual members. If predominance is initially satisfied, but individual issues later threaten to overwhelm the case, the Court has management tools at its disposal, such as decertification or the appointment of a special master to deal with that scenario. Superiority means that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Where, as here, the parties contest certain legal and factual premises relevant to the Rule 23 inquiry, it may be appropriate for the Court to probe behind the pleadings to formulate some prediction as to how specific issues will play out in order to assess whether the proposed class meets the legal requirements for certification. In performing this predictive function and exercising its broad discretion over class certification, the Court must appraise the plaintiff's evidence critically, while taking care not to allow the defendant to turn the class- certification proceeding into an unwieldy trial on the merits. Often the Rule 23 analysis will overlap with some critical assessment regarding the merits of the case. Accordingly, the Plaintiff's motion to certify a collective action under the FLSA is allowed. A full-text copy of the District Court's May 24, 2018 Memorandum and Order is available at https://tinyurl.com/y7qpgyog from Leagle.com. Juan Carlos Montoya, on behalf of himself and all others similarly situated, Plaintiff, represented by Hillary A. Schwab, Fair Work, P.C., Andrew Schmidt, Andrew Schmidt Law, PLLC, pro hac vice, Peter G. Mancuso, Andrew Schmidt Law PLLC,, pro hac vice & Rachel J. Smit, Fair Work, P.C. CRST Expedited, Inc., Defendant, represented by Elizabeth A. Olivier -- eolivier@preti.com -- Preti, Flaherty, Beliveau & Pachios, PLLP., pro hac vice, Gregory P. Hansel -- ghansel@preti.com -- Preti Flaherty Beliveau & Pachios, pro hac vice, Wesley S. Chused -- wchused@preti.com -- Preti Flaherty Beliveau & Pachios LLP, Daniel R. Sonneborn -- dsonneborn@preti.com -- Preti Flaherty & Randall B. Weill -- rweill@preti.com -- Preti Flaherty Beliveau & Pachios, LLP, pro hac vice. CRST International, Inc., Defendant, represented by Daniel R. Sonneborn, Preti Flaherty & Randall B. Weill, Preti Flaherty Beliveau & Pachios, LLP, pro hac vice. CSK AUTO: Supplemental Brief for "Melgar" Settlement Bid Ordered ---------------------------------------------------------------- In the case, OSMIN MELGAR, et al., Plaintiffs, v. CSK AUTO, INC., Defendant, Case No. 13-cv-03769-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California ordered the parties to provide a joint supplemental brief for the Plaintiffs' motion for preliminary approval of a class action settlement. Having reviewed the motion and supporting documents, the Judge ordered that the parties provide a joint supplemental brief addressing the following: a. Maximum Value of the Plaintiffs' Claims: The Plaintiffs claim that the maximum value of their Section 2802 and Section 17200 claims is $1,275,723.83. They will explain how they arrived at this figure. To the extent they arrived at this figure based on certain assumptions (e.g., 1,193,694 bank days and 2,338,672.9 miles), they will explain how they arrived at these supporting assumptions. It will also be helpful for the Court to be given information about how many California stores are at issue and, in general, how close the relevant banks were to the stores. In addition, they will identify what the maximum value of their PAGA claim is and how they arrived at that figure. b. Litigation Risks: Both parties will address the significance of the litigation risks identified in the Plaintiffs' motion. The Court underscores that the significance of the litigation risks is an important factor in assessing whether it was reasonable for Plaintiffs to settle the case for (allegedly) 30% of the maximum value of the case. c. PAGA Claim: The parties will address the adequacy of the settlement with respect to the PAGA claim. d. Plan of Distribution: The Plaintiffs will address whether and how the potential conflict and risk with respect to Store Managers were taken into account in the plan of distribution. e. Attorney's Fees: The Plaintiffs will provide information about the lodestar in the case -- e.g., the hourly rates, the total number of hours, and an estimate as to how much time was spent on each major litigation task (e.g., investigating and preparing the complaint, working on the class certification motion, working on the appeal). f. Incentive Awards: The Plaintiffs will address why the incentive awards are reasonable, taking into account, inter alia, that they no longer work for OR, whether they plausibly have other claims against OR that are being released, and how many actual hours Plaintiffs actually spent on the case. g. Cy Pres Beneficiaries: The Plaintiffs will address why United Way and Legal Aid at Work are appropriate cy pres beneficiaries. h. Reminder Postcard: The parties will address whether a reminder postcard should be issued by a date certain if no response to the class notice has been received from a given class member. i. Time to Cash Check: The parties will address whether class members should be given longer than 120 days to cash checks. j. Proposed Class Notice: i. Page 1: The first paragraph should include in bold the estimated average payout per class member. ii. Page 1: The chart explaining a class member's options should be modified. In particular, the object option should clarify that an objecting class member remains part of the class and should still file a claim form in order to receive payment from the settlement. iiii. Pages 4-6: In Questions 10, 14, and 15, should a class member be given more than 45 days to file a claim, request for exclusion, or objection? iv. Page 6: In Question 15, the text should clarify that an objecting class member remains part of the class and should still file a claim form in order to receive payment from the settlement. v. Page 6: In Question 16, will there be a website maintained by the settlement administrator? The Judge directed the parties to file the supplemental brief within one week of the date of the Order. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/cMW6Sc from Leagle.com. Osmin Melgar, individually and on behalf of all others similarly situated & Karo Khatchadoorian, individually and on behalf of all others similarly situated, Plaintiffs, represented by Michael Malk -- mm@malklawfirm.com -- Michael Malk, ESQ, APC. CSK Auto, Inc., an Arizona Corporation, Defendant, represented by James Michael Peterson, Esq. -- peterson@higgslaw.com -- Higgs Fletcher and Mack LLP, Edwin Mendelson Boniske, Esq. -- boniske@higgslaw.com -- Higgs Fletcher and Mack LLP & Jason Conroy Ross, Esq. -- rossj@higgslaw.com -- at Higgs Fletcher Mack. CVS CAREMARK: Mailing May Have Disclosed HIV Status, Says Suit -------------------------------------------------------------- NBC4 Staff of NBC4i.com, reports that a class-action lawsuit has been filed with the Ohio Court of Claims against CVS Caremark and the state Health Department over a mailing that might have publicly disclosed the identity of 6,000 HIV patients. The Columbus Dispatch reports the lawsuit filed by a Cleveland- area attorney says the state shared private medical information with CVS last summer without patients' authorization, allowing CVS to make a marketing pitch to non-customers about its pharmacy services. The lawsuit says the designation "PM 6402 HIV" was visible above the name and address of recipients. A federal lawsuit was filed against CVS in March over the mailing. A CVS spokesman says the company takes patient information seriously and will handle future mailings differently. A Health Department spokesman says the agency doesn't comment on pending litigation.[GN] DEARBORN MOTORS: Court Dismisses Class Claims in "Williams" ----------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, granting Defendant's Motion to Dismiss Class Claims in the case captioned BRIAN P. WILLIAMS and JAY HOWARD, Plaintiffs, v. DEARBORN MOTORS 1, LLC, d/b/a ALL PRO NISSAN OF DEARBORN, Defendant, Case No. 17-12724 (E.D. Mich.). The Plaintiffs' class claims allege that the arbitration agreement contains provisions that violate federal law and render the arbitration agreement unenforceable. The named Plaintiffs also allege individual claims of retaliation and discrimination in violation of several statutes. In addition to the class claims of discrimination, Williams brings individual claims of retaliation in violation of Title VII (Count IV), retaliation in violation of the ADEA (Count V), and retaliation in violation of the ADA (Count VI). Howard brings individual claims of retaliation in violation of Title VII (Count IV), race discrimination in violation of Michigan's Elliott-Larsen Civil rights Act (ELCRA) (Count VII), and retaliation in violation of ELCRA (Count VIII). Section 2 of the Federal Arbitration Act (FAA) provides that written arbitration agreements involving commerce shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. In other words, the FAA ensures that arbitration agreements are as enforceable as any other contract, but it does not make arbitration agreements more enforceable than other contracts. Delegation Provision Because arbitration is a matter of contract, a party cannot be required to submit to arbitration any dispute which he has not agreed to submit to arbitration. The question of whether the parties have submitted a particular dispute to arbitration is one for the court unless the parties clearly and unmistakably provide otherwise. The Defendant relies exclusively on Rent-A-Center v. Jackson, 561 U.S. 63 (2010). The Court notes that that case is distinguishable because the delegation provision at issue in Rent-A-Center was clearer and broader than the one at issue in this case. The Court concludes that question of the enforceability of the class waiver provision in this case is for the Court, not the arbitrator, to decide. Whether the Class Action Waiver is Enforceable The Defendant argues that the Plaintiffs' class claims should be dismissed because the Plaintiffs' contention that the class action waiver contained in the arbitration agreement subjects employees to an unlawful employment practice by limiting access to legal rights fails to raise a cognizable claim. The Defendant notes that courts have enforced class waivers in many contexts, including in an employment discrimination claim under the ADEA. The Plaintiffs respond that the class waiver provision violates federal law and renders the arbitration agreement unenforceable under the FAA. The Plaintiffs argue that, therefore, Howard and the Plaintiff class can pursue their claims in court. The Plaintiffs in this case, like the employees in Epic Systems, attack only the individualized nature of the arbitration proceedings that they agreed to. Thus, they too seek to interfere with a fundamental attribute of arbitration. As was the case in Epic Systems, illegality in this case is not a generally applicable contract defense. Instead, it is an argument that a contract is unenforceable just because it requires bilateral arbitration, which is not permissible and inconsistent with the FAA and its saving clause. In short, Epic Systems teaches that Congress has instructed in the FAA that courts must enforce arbitration agreements providing for individualized proceedings like the one at issue in this case, and neither the FAA's saving clause nor the NLRA suggests otherwise. Accordingly, the class action waiver is enforceable in this case, and the Plaintiffs' first argument must fail. The Court, accordingly, grants the Defendant's Motion to Dismiss the Plaintiffs' Class Claims and to Compel Arbitration of Plaintiff Howard's Individual Claims. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/yag4wvxm from Leagle.com. BRIAN P WILLIAMS & Jay Howard, Plaintiffs, represented by Shereef H. Akeel, Akeel & Valentine. DEARBORN MOTORS 1, LLC, Defendant, represented by Susan D. Koval -- skoval@nemethlawpc.com -- Nemeth Law, P.C. DR PEPPER: Wins Summary Judgment in Stockholders Suit ----------------------------------------------------- In the case, CITY OF NORTH MIAMI BEACH GENERAL EMPLOYEES' RETIREMENT PLAN and MAITLAND POLICE OFFICERS AND FIREFIGHTERS RETIREMENT TRUST, on behalf of themselves and all other similarly situated stockholders of Dr Pepper Snapple Group, Inc., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., MAPLE PARENT HOLDINGS CORP., SALT MERGER SUB, INC., LARRY YOUNG, DAVID E. ALEXANDER, ANTONIO CARRILLO, JOSê M. GUTIêRREZ, PAMELA H. PATSLEY, RONALD G. ROGERS, WAYNE R. SANDERS, DUNIA A. SHIVE, and M. ANNE SZOSTAK, Defendants, C.A. No. 2018-0227-AGB (Del. Ch.), Judge Andre G. Bouchard of the Court of Chancery of Delaware granted the Defendants' motions for summary judgment, and denied the Plaintiffs' motion for summary judgment. Earlier this year, Dr Pepper and Keurig Green Mountain, Inc. announced an agreement to combine their businesses to create a more diversified beverage company. The transaction is structured so that Keurig will become an indirect wholly-owned subsidiary of Dr Pepper through a reverse triangular merger. Dr Pepper stockholders will receive $103.75 per share in a special cash dividend and will retain their shares of Dr Pepper, which will account for 13% of the shares of the combined company. The indirect owners of Keurig will receive shares of Dr Pepper and will hold the remaining 87% of the equity of the combined company. Dr Pepper stockholders are not being asked to approve the merger, which combines a merger subsidiary of Dr Pepper with the parent of Keurig. But they are being asked to approve two proposals necessary to effectuate the transaction at a stockholders meeting scheduled for June 29, 2018. On March 8, 2018, Dr Pepper issued a preliminary proxy statement for the stockholders meeting. It states that Dr Pepper stockholders will not have appraisal rights under Section 262 of the Delaware General Corporation Law in connection with the proposed transaction. That filing prompted two stockholder Plaintiffs to file the action in which they assert that Dr Pepper stockholders "ought" to be afforded appraisal rights in connection with the proposed transaction. The Plaintiffs filed the Complaint on March 28, 2018, asserting two claims. Count I asserts that the individual Defendants breached their fiduciary duties by failing to inform Dr Pepper's stockholders that they have appraisal rights in connection with the Merger. Count II asserts that 8 Del. C. Section 262(d)(1) was violated because the Preliminary Proxy did not inform stockholders of the availability of appraisal rights. The Plaintiffs ask the Court to enjoin the Proposed Transaction until the Plaintiffs and the Class are provided their rights under 8 Del. C. Section 262, or alternatively permit the class members to demand and petition the Court for appraisal. On April 30, 2018, Maple Parent and Dr Pepper each filed a motion for summary judgment under Court of Chancery Rule 56. On May 1, 2018, the Plaintiffs filed a cross-motion for summary judgment. The parties request a decision before the upcoming stockholders meeting. They agree that the action concerns a purely legal question concerning the availability of appraisal rights under Section 262. The briefing was completed on May 18, 2018, and the Court heard argument on the motions on May 25, 2018. Judge Bouchard explains that Section 262 affords stockholders of Delaware corporations a statutory remedy for appraisal of their shares in certain defined circumstances. Relevant in the action, Section 262(b) expressly provides that appraisal rights will be available only for the shares of stock of a "constituent corporation" in a merger or consolidation to be effected pursuant to certain provisions of the General Corporation Law. The three- step process for determining a stockholder's entitlement to appraisal under Section 262(b) also contemplates that the stockholder will relinquish its shares in the merger or consolidation. The Judge holds that the term "constituent corporation" as used in Section 262 means an entity actually being merged or combined and not the parent of such an entity. Based on that construction, he concludes that Dr Pepper's stockholders do not have a statutory right to appraisal under Section 262(b) because Dr Pepper is not a constituent corporation. Instead, Dr Pepper is simply the parent of one of the two corporations that will be merged in connection with the proposed transaction. As a second ground for his decision, the Judge concludes that Dr Pepper stockholders are not entitled to appraisal because they are retaining their shares in connection with the proposed transaction. This type of transaction does not fit the statutory scheme of Section 262(b), which contemplates that the shares for which appraisal is sought will be relinquished in a merger or consolidation. Based on these conclusions, Judge Bouchard granted the Defendants' motions for summary judgment, and denied the Plaintiffs' motion for summary judgment. A full-text copy of the Court's May 25, 2018 Opinion is available at https://is.gd/O2RO6q from Leagle.com. Michael J. Barry -- mbarry@gelaw.com -- Jeff A. Almeida -- jalmeida@gelaw.com -- and Laina M. Herbert -- lherbert@gelaw.com -- of GRANT & EISENHOFER P.A., Wilmington, Delaware; Mark Lebovitch -- markl@blbglaw.com -- and John Vielandi -- john.vielandi@blbglaw.com -- of BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP, New York, New York; Counsel for Plaintiffs. S. Mark Hurd -- shurd@mnat.com -- Melissa A. DiVincenzo -- mdivincenzo@mnat.com -- Eric S. Klinger-Wilensky -- ekwilensky@mnat.com -- and Alexandra Cumings -- acumings@mnat.com -- of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Brian A. Herman -- brian.herman@morganlewis.com -- of MORGAN, LEWIS & BOCKIUS LLP, New York, New York; Jason H. Wilson -- jason.wilson@morganlewis.com -- of MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania; Counsel for Defendants Dr Pepper Snapple Group, Inc., Salt Merger Sub, Inc., Larry Young, David E. Alexander, Antonio Carrillo, JosÇ M. GutiÇrrez, Pamela H. Patsley, Ronald G. Rogers, Wayne R. Sanders, Dunia A. Shive, and M. Anne Szostak. Paul J. Lockwood -- paul.lockwood@skadden.com -- Joseph O. Larkin -- joseph.larkin@skadden.com -- Sarah R. Martin -- sarah.martin@skadden.com -- Alyssa S. O'Connell -- alyssa.schwartz@skadden.com -- and Michelle L. Davis -- michelle.davis@skadden.com -- of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Counsel for Defendant Maple Parent Holdings Corp. DYNAMIC LEDGER: Injunction Bid in Tezos Securities Suit Denied -------------------------------------------------------------- In the case, IN RE TEZOS SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS, Case No. 17-cv-06779-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California denied without prejudice Lead Plaintiff Arman Anvari's motion to enjoin a parallel state court proceeding brought by Plaintiff Andrew Baker. The consolidated class action arises from alleged securities law violations by Dynamic Ledger Solutions ("DLS") and various other Defendants involved with the Tezos Initial Coin Offering ("ICO"). While the case is relatively young and has not yet progressed past the motion to dismiss stage, no reasonable observer would claim its short life has suffered from a lack of motions practice. The instant motion is merely the latest skirmish over where and how the case should be litigated. Four putative class actions were filed in federal court last fall on behalf of individuals who contributed money to the Tezos ICO. A fifth action filed in state court was removed to federal court by the Defendants. Baker, the state court Plaintiff, moved for remand. At the time, an already argued Supreme Court case appeared poised to provide potentially dispositive guidance, within a matter of months, as to whether remand was appropriate. Accordingly, Baker's motion was denied without prejudice and his case stayed, pending issuance of the Supreme Court's decision. While the Baker action was stayed, the four federal actions were consolidated and Anvari was appointed the Lead plaintiff. Shortly thereafter, the anticipated Supreme Court decision issued, and Baker renewed his motion for remand. Finding that Cyan had largely vindicated Baker's position, the Court granted the motion. Before that order even issued, however, Lead Plaintiff Anvari, who opposed the motion to remand, also filed the instant motion requesting, in the event of remand, that the Baker action be enjoined from proceeding in state court. Anvari argues the PSLRA expressly authorizes district courts to enjoin state proceedings by providing a mechanism for appointing a lead plaintiff in federal securities class actions. The power which that mechanism vests in the lead plaintiff to control the litigation, Anvari contends, is a uniquely federal right that cannot be given its intended meaning or scope if a state court can give control of duplicative litigation to another class member. Anvari's motion raises two key issues. The first is whether there are any circumstances under which a federal court can enjoin a state court proceeding based upon the PSLRA. The second is whether, assuming an injunction might be justified under certain circumstances, such circumstances exist in the case. Judge Seeborg finds that Anvari's allegations of bad faith ring hollow and permitting Baker to proceed in state court does not appear to so threaten the integrity of the PSLRA that failing to enjoin it would amount to an abrogation of a Congressional mandate. As in In re LendingClub Securities Litigation, this does not foreclose the possibility that an injunction or stay of either the state or federal action may at some point be justified by future developments. Nor does it necessarily preclude the enjoining of state proceedings other than Baker related to the Tezos ICO. As an alternative to enjoining Baker in its entirety, Anvari asks the Court to enjoin the Defendants from engaging in any settlement negotiations with any Plaintiff purporting to represent the class (or part of the class) other than Lead Plaintiff Anvari without: (a) notifying the Court and Anvari; and (b) obtaining the Court's approval. As an initial matter, the Judge finds that Anvari raised this request for the first time in his reply and, in doing so, did not provide the Defendants with a fair opportunity to respond. The prejudice to the Defendants has been somewhat mitigated by Tezos Stiftung ("Foundation") seeking and being granted leave to file a response. In the end, however, the procedural impropriety of Anvari's request is less damning than its lack of substantive merit. As the Foundation's response points out, the Ninth Circuit has previously disapproved of providing the relief Anvari seeks. In Negrete v. Allianz Life Ins. Co. of N. Amer., a District Court issued an order barring the defendant from engaging in settlement negotiations in parallel litigation in state and other federal courts. Even though the order was not styled as an injunction, the Ninth Circuit found the order was still an injunction "in practical effect" as it precluded Allianz from proceeding in other actions brought against it in other courts. As such, it was barred by the Anti-Injunction Act unless it fell within one of the three exceptions: (i) where the federal litigation was advanced, (ii) where a class settlement was imminent, and/or (iii) where there was evidence of collusive procedures such as a reverse auction. The Judge finds that Anvari has not satisfactorily demonstrated that any such circumstances are present. The litigation is not advanced. There is no indication that Baker, or any other state litigant, has initiated negotiations with the Defendants or is anywhere near reaching a settlement that threatens to dispose of all or even some of the claims of the putative class members. Finally, he says there is slim to no evidence that Baker, his counsel, or any of the Defendants have at any point acted in bad faith. For the reasons stated, Judge Seeborg denied without prejudice Lead Plaintiff Anvari's motion for an injunction. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/GYwQt7 from Leagle.com. GGCC, LLC, an Illinois Limited Liability Company, individually and on behalf of all others similarly situated, Plaintiff, represented by William Richard Restis -- support@restislaw.com -- The Restis Law Firm, P.C., Bruce Daniel Greenberg -- bgreenberg@litedepalma.com -- Lite Depalma Greenberg LLC, Jeremy Nash -- jnash@litedepalma.com -- Lite DePalma Greenberg, LLC & Joseph J. DePalma -- jdepalma@litedepalma.com -- Lite DePalma Greenberg, LLC. Andrew Okusko, (C 17-6829); individually and on behalf of all others similarly situated, Plaintiff, represented by Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP, Donald J. Enright -- denright@zlk.com -- Levi & Korsinsky, LLP & Eduard Korsinsky -- ek@zlk.com -- Levi & Korsinsky LLP. Arman Anvari, Lead Plaintiff, Plaintiff, represented by Enoch H. Liang -- enoch.liang@ltlattorneys.com -- LTL Attorneys LLP, Caleb H. Liang -- caleb.liang@ltlattorneys.com -- LTL Attorneys LLP, Hung G. Ta -- hta@hgtlaw.com -- Hung G. Ta, Esq. PLLC, pro hac vice & James Mitchell Lee -- james.lee@ltlattorneys.com -- LTL Attorneys LLP. Dynamic Ledger Solutions, Inc., a Delaware Corporation, Defendant, represented by Brian E. Klein -- bklein@ bakermarquart.com -- Baker Marquart LLP, Patrick Edward Gibbs -- pgibbs@cooley.com -- Cooley LLP, Daniel Louis Sachs, Cooley LLP, Donald Ross Pepperman -- dpepperman@ bakermarquart.com -- Baker Marquart LLP, Jeffrey Michael Kaban -- jkaban@cooley.com -- Cooley LLP, Samantha Anne Kirby -- skirby@cooley.com -- Cooley LLP & Scott Matthew Malzahn -- smalzahn@ bakermarquart.com -- Baker Marquart LLP. Tezos Stiftung, A Swiss Foundation, Defendant, represented by Andrew S. Gehring -- andrew.gehring@davispolk.com -- Davis Polk and Wardwell LLP, Edmund Polubinski, III -- edmund.polubinski@davispolk.com -- Davis Polk and Wardwell LLP, Neal Alan Potischman -- neal.potischman@davispolk.com -- Davis Polk & Wardwell & Serge Alexander Voronov -- serge.voronov@davispolk.com -- Davis Polk & Wardwell LLP. Kathleen Breitman, an Individual & Arthur Breitman, an Individual, Defendants, represented by Brian E. Klein, Baker Marquart LLP, Donald Ross Pepperman, Baker Marquart LLP & Scott Matthew Malzahn, Baker Marquart LLP. Timothy Draper & Draper Associates, Defendants, represented by Christopher L. Wanger -- cwanger@manatt.com -- Manatt Phelps & Phillips, LLP & Ana G. Guardado -- aguardado@manatt.com -- Manatt, Phelps & Phillips, LLP. Johann Gevers, Defendant, represented by Edward W. Swanson -- ed@smllp.law -- Swanson & McNamara LLP, Britt H. Evangelist -- britt@smllp.law -- Swanson & McNamara LLP & Mary Geraldine McNamara -- mary@smllp.law -- Swanson & McNamara LLP. Guido Schmitz-Krummacher, Defendant, represented by Rees Ferriter Morgan -- rmorgan@coblentzlaw.com -- Coblentz, Patch, Duffy & Bass LLP & David Carter Beach -- dbeach@coblentzlaw.com -- Coblentz Patch Duffy & Bass LLP. Bitcoin Suisse AG, Defendant, represented by Leo J. Presiado -- lpresiado@brownrudnick.com -- Brown Rudnick LLP & Jessica N. Meyers -- jmeyers@brownrudnick.com -- Brown Rudnick. Niklas Nikolajsen, Defendant, represented by Leo J. Presiado, Brown Rudnick LLP, Jessica N. Meyers, Brown Rudnick & Sigmund S. Wissner-Gross -- swissner-gross@brownrudnick.com -- Brown Rudnick LLP. Andrew Baker, Intervenor, represented by James Quinn Taylor- Copeland -- JAMES@TAYLORCOPELANDLAW.COM -- Taylor-Copeland Law. EPIC SYSTEMS: Ruling Raises Statutory Interpretation Issues ----------------------------------------------------------- According to Law Journal Editorial Board, "Much has been written about why the U.S. Supreme Court's recent 5-4 decision in Epic Systems Corp. v. Lewis, __ S. Ct. __, 2018 U.S. LEXIS 3086, was a victory for arbitration in yet another battle in the war between management and labor. Given the court's recent pro-arbitration jurisprudence, the decision might be seen as inevitable -- at least until Congress steps in to provide greater regulation of consumer or employee arbitrations as it did in Dodd-Frank for a limited number of financial transactions. We suggest a different take on the case, one that does not bode well for even-handed decision making by an aggressive Supreme Court conservative majority." "First, though, some background. In 2012, the National Labor Relations Board ruled that the 1935 National Labor Relations Act protected employees generally -- not only those subject to collective bargaining agreements negotiated between a union and management -- from being required to agree to waivers of the right to pursue federal statutory and other claims in a class action. Typically, these waivers were contained within a clause also mandating that all disputes be resolved through arbitration and not through the courts. The board held that the right of "concerted activities for the purpose of . . . mutual aid or protection" under section 7 of the NLRA overrode the mandates of the 1925 Federal Arbitration Act, section 2 of which declared arbitration agreements "valid, irrevocable, and enforceable, save on such grounds as exist at law or equity for the revocation of any contract." According to the NLRB, this "savings clause" meant that an employee could bring a class action to prosecute alleged violations of overtime, minimum wage and other federal labor laws despite a class-action waiver in an arbitration clause in their employment contract, pointing to the right of concerted action in section 7 of the NLRA as a defense to enforcement of the class-action waiver. "In three cases consolidated before the Supreme Court, employees had sued for improper classification and violation of the Fair Labor Standards Act (FLSA), asserting in each case that they were pursuing these claims for themselves and others similarly situated. The individual plaintiff-employees may have had small- dollar wage claims, not financially worth pursuing individually, but by joining together the potential claims of other employees against the same company in a class action, the employees would be able (it is said) to retain experienced counsel and bear the costs of discovery and vigorous litigation. In that way, a class action is said to further the goals of the federal labor laws and prevent employers from taking advantage of employees. In the Epic Systems case, the Seventh Circuit permitted the plaintiff to pursue the claims as a class action, separate from arbitration. In the other consolidated cases, Morris v. Ernst & Young LLP (finding section 7 violation), and Murphy Oil, Inc v. NLRB (permitting waivers), the Ninth and Fifth Circuits took different paths. "In the Supreme Court, the majority (in an opinion by Justice Gorsuch) held that because section 7 of the NLRA was focussed on union and collective bargaining-related claims, rather than these non-union, albeit statutory cases, the FAA savings clause did not apply, and Chevron U.S.A. Inc. v. NRDC did not warrant court deference to the NLRB's interpretation of its authorizing statute. A vigorous dissent, read in part from the bench by Justice Ginsburg, called the majority "egregiously wrong." "One difference between the majority and the dissent was the extent to which the former repeatedly characterized the NLRB's finding as a recent about-face. The majority focused on a non- binding opinion of its general counsel rather than on the board's actual decision. More important, the majority seemed to ignore cases cited by the dissent to show a long history of non-union "concerted activities" suits. For example, in cases starting in 1942, the board had held that FLSA claims could be brought jointly by several employees or as a class action. We therefore think it is incorrect for the majority to say that the board's current position regarding class action waivers is a startling development (as it says "for the first time in 77 years") without acknowledging the dramatic shift in the Supreme Court's arbitration jurisprudence in the last decade. "We are particularly concerned that statutes intended to protect labor were read narrowly. For example, a discussion of the broad coverage of the NLRA beyond typical union and collective bargaining in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), 437 U.S. at 565, was said to be dictum, even though circuit courts had understood it as otherwise -- even in non-union cases. "The majority opinion also raises problems regarding the proper protocol for statutory interpretation. It is nonsensical to say, as did the majority, that Congress in 1935 should have anticipated that arbitration contracts would become commonplace in non-union employment contracts or that class litigation was not intended because section 7 did not include specific class procedures. Cases before Gilmer had held that arbitration was not appropriate for statutory claims if arbitration was contrary to the statutory scheme. It was not until much later that the court found new vigor in the FAA outside of the commercial arena. As the dissent in Epic pointed out, those few cases that touched on non-labor union issues under section 7 of the NLRA had read it broadly. Saying that Congress 'knew how' to include language forbidding class action waivers does not take this history into account. Nor does that 'rule' consider that Congress had no reason to amend the NLRA when the concerted activity language had been read broadly until recently. "This misunderstanding of the legislative process may be a function of the absence of legislators and governors -- such as Justice O'Connor and Chief Justice Warren -- on the court. A court composed entirely of former appellate judges may lack the practical experience to reject unrealistic statutory interpretation guidelines." "We are familiar with the now-trite phrase that one can have his or her own opinion, but one cannot lay claim to different facts. The epitome of ideological decision-making is the lens through which one reads precedent. Merely saying that you are not making policy decisions does not mean that you are approaching the problem using neutral principles. We fear that Epic Systems opens the way to just that." [GN] FCA US: African-American Workers' Discrimination Suit Can Proceed ----------------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, denied Defendant's Motion to Dismiss and to Strike the Class Allegations in the case captioned MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS, and ANTHONY HILL, on behalf of themselves and all others similarly situated, Plaintiffs, v. FCA US LLC, Defendant, Case No. 17-10097 (E.D. Mich.). The Plaintiffs are current and former employees of Fiat Chrysler Automobiles (FCA). They challenge, for themselves and others similarly situated, an employee-evaluation policy they say has a disparate impact on African-American employees. The Plaintiffs allege that as a result of this policy, they received lower evaluation scores which resulted in missed career advancements, bonuses, and other employment opportunities. Two plaintiffs additionally bring individual claims of retaliation and discrimination. The Defendant moves to dismiss pursuant to Rule 12(b)(6), the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), governs. Under that standard, a court first culls legal conclusions from the complaint, leaving only factual allegations to be accepted as true. The inquiry then becomes whether the remaining assertions of fact allow the court to draw the reasonable inference that the defendant is liable. Here, M. Williams' EEOC charge reads, in part: "I and similarly situated other African-Americans, have routinely been subjected to unwarranted lower PLM/Performance Ratings. Subsequently, due to these lower performance rating scores we have been subjected to different terms and conditions of employment including but not limited to: loss of promotional opportunities, loss of merit, bonus increases, and more favorable job assignments. We have also been subjected to disciplinary action and discharge." Thus, the Court finds, M. Williams properly raises class claims regarding the disparate impact of the PLM process on African- American employees. FCA does not seem to contest that. They do argue, however, that the charge is not timely. They point out that M. Williams did not file her charge until March 2, 2017, which is more than 300 days after she likely received her 2015 PLM rating. Because she began her employment in 2015, the 2015 PLM rating was the first rating she received. And because she was terminated in January 2017, the 2015 PLM rating was likely the only rating she received. The Court is aware, however, that the Plaintiffs' briefing references additional EEOC charges that were filed by other Plaintiffs and potential plaintiffs after the filing of the second amended complaint. The Court will leave it to the Plaintiffs to address in their final amended complaint whether any of these EEOC charges satisfy the exhaustion requirement. The Court therefore denies the remainder of FCA's motion to dismiss and strike without prejudice to refiling. A full-text copy of the District Court's May 24, 2018 Opinion and Order is available at https://tinyurl.com/ydgrzgpw from Leagle.com. MARLIN WILLIAMS, PAMELA WILLIAMS CARTHENS, JEROME THOMPSON, PhD, BRENDA DEFORREST, LEVEN WEISS, J.D., MICHAEL D. BROWN, J.D., CORA WILLIAMS & ANTHONY HILL, Plaintiffs, represented by Beth M. Rivers, Pitt, Dowty, Cary S. McGehee, Pitt, McGehee, Hasan Kaakarli, Akeel & Valentine, PLC, Megan Bonanni, Pitt, McGehee, Michael L. Pitt, Pitt, McGehee, Robert W. Palmer, Pitt, McGehee, Palmer & Rivers, & Shereef H. Akeel, Akeel & Valentine. FCA US LLC, Defendant, represented by Daniel E. Turner -- dturner@littler.com -- Littler Mendelson, P.C., Jacqueline Phipps Polito -- jpolito@littler.com -- Littler Mendelson P.C., Jerome R. Watson -- Watson@millercanfield.com -- Miller, Canfield, Muhammad Misbah Shahid -- shahid@millercenfield.com -- Miller Canfield Paddock & Stone & Tasha Inegbenebor -- tinegbenebor@littler.com -- Littler Mendelson P.C. FLEX LTD: Kaskela Law Files Shareholder Class Action Lawsuit ------------------------------------------------------------ A shareholder class action lawsuit has been filed against Flex, Ltd. (NASDAQ: FLEX) ("Flex" or the "Company") on behalf of investors who purchased the Company's common stock between January 26, 2017 and April 26, 2018, inclusive (the "Class Period"). FINAL DEADLINE ALERT: Investors who purchased Flex's common stock during the Class Period may, no later than July 9, 2018, seek to be appointed as a lead plaintiff of the investor class. Flex investors are encouraged to contact Kaskela Law LLC (David Seamus Kaskela, Esq.) at (484) 258-1585 or (888) 715-1740 to discuss their important legal rights and options with respect to this action prior to July 9, 2018. Investors may also go to http://kaskelalaw.com/case/flex-ltd/to submit their information to the firm online. On April 26, 2018, Flex disclosed that "the Audit Committee of the Company's Board of Directors, with the assistance of independent outside counsel, is undertaking an independent investigation of allegations made by an employee including that the Company improperly accounted for obligations in a customer contract and certain related reserves." Following this news, shares of the Company's stock declined $3.61 per share, or over 21%, to close at $13.03 on April 27, 2018, on heavy trading volume. The shareholder class action complaint alleges that Flex made false and misleading statements and/or failed to disclose to investors that: (i) the Company's internal controls over financial reporting were materially weak and deficient; and (ii) the Company had improperly accounted for obligations in a customer contract and certain related reserves. The complaint further alleges that, as a result of the foregoing, investors purchased Flex's stock at artificially inflated prices during the Class Period and suffered significant investment losses following the Company's April 26, 2018 disclosures. Flex investors are encouraged to contact http://kaskelalaw.com/case/flex-ltd/,to discuss their legal rights and options prior to July 9, 2018. David Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (484) 258 - 1585 (888) 715 - 1740 Email: skaskela@kaskelalaw.com [GN] FIAT CHRYSLER: Faces Suit Over Software Flaw -------------------------------------------- Robert N. Charette, writing for IEEE Spectrum, reports that a California judge decided to allow a class action lawsuit filed in December 2017 against Fiat Chrysler to proceed. The lawsuit, which could have major ramifications for car makers, was filed in response to stalling issues with 2017 Chrysler Pacifica minivans that the plaintiffs allege were caused by known software defects. The plaintiffs allege that Fiat Chrysler, despite numerous owner complaints about the Pacifica stalling out, concealed knowledge of defects in Pacifica's powertrain control module (PCM) to keep customers from having concerns about buying the vehicle. Fiat Chrysler attempted to get the lawsuit dismissed, arguing that consumer complaints don't prove that a vehicle defect exists, or demonstrate that the company knew about the alleged defect a priori and concealed it. The judge agreed with Fiat Chrysler on those points, ruling that the plaintiffs could not use consumer complaints alone as evidence of a defect. However, he pointed out that Fiat Chrysler had issued two technical service bulletins relating to Pacifica's PCM software before the plaintiffs had purchased their vehicle, and two more following their purchase. The judge ruled that there was sufficient evidence to believe it was "at least plausible" that Fiat Chrysler knew that there was a stalling problem with the vehicles before the plaintiffs bought them. About a month before the lawsuit was filed, the Center for Auto Safety filed a petition with the National Highway Transportation Safety Administration calling for an investigation (pdf) into the Pacifica stalling problem. The Center said it had fielded complaints from more than 50 owners of 2017 Pacificas who had "lost motive power at varying speeds," ranging from sitting idle to traveling at 60 miles per hour. The petition asked the agency to rule that the stalling defect required a vehicle recall. Interestingly, within a few weeks of the lawsuit and petition filings, Fiat Chrysler did announce a recall (pdf) of 154,000 U.S. non-hybrid 2017 Pacifica minivans because of potential engine stalling which could "increase the risk of a crash." The automaker stated in its recall notice that, under a rare set of conditions, the powertrain control module software "may cause an engine stall without warning, without lighting the Malfunction Indicator Lamp or setting any Diagnostic Trouble Codes." Fiat Chrysler went on to state that most cases of stalling occur at low speeds, while at idle, or while negotiating a turn. Dealers, it said, will install a new software flash update to Pacifica powertrain control modules for free. The automaker's admission that the error didn't trigger any diagnostic trouble codes or a malfunction light vindicated those Pacifica owners who experienced stalling and brought their vans into their dealers to be fixed, only to be told that there was nothing wrong. According to Fiat Chrysler's own chronology (pdf) of its efforts, the automaker opened an investigation into the Pacifica stalling issue on 23 October 2017. It determined the root cause of the problem--a loss of crankshaft position sensor synchronization for roughly 150 milliseconds that was not being managed by the vehicle's engine control software--in December 2017. The update to the control software will make it "less susceptible" to the problem, the company stated, implying that it may still occur in certain circumstances. Intriguingly, the Fiat Chrysler chronology indicates the investigation was caused by a letter from a customer complaining about a stalling vehicle, but the automaker didn't indicate why this particular letter caused the investigation to be launched, even though dealers received numerous customer complaints well before October. It may be that the letter came from a Pacifica owner who was also a lawyer and was involved in the filing of the Center for Auto Safety's petition with federal regulators. Perhaps the class action lawsuit will provide more specifics on what actually triggered the four previous technical service bulletins to update the Pacifica's powertrain control software. Those updates are at the crux of the legal questions regarding what Fiat Chrysler knew about the stalling defect and when it knew it. It will be interesting to see how these four bulletins are connected to the current PCM software update, especially if, as the lawsuit alleges, the previous engine control software updates were used by Fiat Chrysler to merely "mask" the Pacifica stalling problem. If the plaintiffs win, the lawsuit could have serious implications for all automobile manufacturers. As of 2016, software-related recalls were responsible for some 15 percent of all vehicle recalls, and a number that has been climbing rapidly over the past decade. The question that this lawsuit may help clarify is how soon automakers must disclose potential safety issues created by software bugs. This is especially important in the case of transient software bugs like those responsible for the Pacificas' stalling, which are extremely difficult to find and may not show up in the vehicles' diagnostic systems. As software use in vehicles increases, further hard-to-replicate software-induced problems will occur, many potentially creating a crash risk. It may be time for the National Highway Transportation Safety Administration to revisit its recall process, which was developed with hardware defects in mind to take into account the unique automotive safety challenges that software errors pose.[GN] FLEX LTD: Kaskela Law Files Shareholder Class Action Lawsuit ------------------------------------------------------------ A shareholder class action lawsuit has been filed against Flex, Ltd. (NASDAQ: FLEX) ("Flex" or the "Company") on behalf of investors who purchased the Company's common stock between January 26, 2017 and April 26, 2018, inclusive (the "Class Period"). FINAL DEADLINE ALERT: Investors who purchased Flex's common stock during the Class Period may, no later than July 9, 2018, seek to be appointed as a lead plaintiff of the investor class. Flex investors are encouraged to contact Kaskela Law LLC (David Seamus Kaskela, Esq.) at (484) 258-1585 or (888) 715-1740 to discuss their important legal rights and options with respect to this action prior to July 9, 2018. Investors may also go to http://kaskelalaw.com/case/flex-ltd/to submit their information to the firm online. On April 26, 2018, Flex disclosed that "the Audit Committee of the Company's Board of Directors, with the assistance of independent outside counsel, is undertaking an independent investigation of allegations made by an employee including that the Company improperly accounted for obligations in a customer contract and certain related reserves." Following this news, shares of the Company's stock declined $3.61 per share, or over 21%, to close at $13.03 on April 27, 2018, on heavy trading volume. The shareholder class action complaint alleges that Flex made false and misleading statements and/or failed to disclose to investors that: (i) the Company's internal controls over financial reporting were materially weak and deficient; and (ii) the Company had improperly accounted for obligations in a customer contract and certain related reserves. The complaint further alleges that, as a result of the foregoing, investors purchased Flex's stock at artificially inflated prices during the Class Period and suffered significant investment losses following the Company's April 26, 2018 disclosures. Flex investors are encouraged to contact http://kaskelalaw.com/case/flex-ltd/,to discuss their legal rights and options prior to July 9, 2018. David Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone: (484) 258 - 1585 (888) 715 - 1740 Email: skaskela@kaskelalaw.com [GN] FORD MOTOR: Court OKs Filing of TAC in "Baranco" ------------------------------------------------ The United States District Court for the Northern District of California, San Francisco Division, issued an Order approving the stipulation allowing the Plaintiffs to file a Third Amended Class Action Complaint in the case captioned DAVID BARANCO, JAMES ABBITT, HARRIET ABRUSCATO, DONALD BROWN, DANIEL CARON, ANITA Assigned to FARRELL, JOHN FURNO, JAMES JENKIN, GARY KUBBER and MALISA NICOLAU, APRIL NICOLO, CLASS individually and on behalf of all others similarly situated, Plaintiffs, v. FORD MOTOR COMPANY, a Delaware corporation, Defendants, Case No. 3:17-CV-03580-EMC (N.D. Cal.). The Plaintiffs' request to file a Third Amended Class Action Complaint to add three named plaintiffs. As part of the parties' agreement that the Plaintiffs may file a Third Amended Class Action Complaint to add three named plaintiffs, Plaintiffs agreed to (1) allege, for all named Plaintiffs, the Vehicle Identification Number for each plaintiff's vehicle and the date each plaintiff purchased his or her vehicle; and (2) waive all arguments that the filing date of the new plaintiffs relates back to the date of the filing of the original complaint (i.e., the filing date of the new plaintiffs' claims shall be the date the Third Amended Complaint is filed). A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ybtpgdot from Leagle.com. David Baranco, Plaintiff, represented by Ben Barnow, Barnow and Associates, P.C., pro hac vice,Erich Paul Schork, Barnow and Associates, P.C., pro hac vice, Courtney L. Davenport -- courtney@thedavenportlawfirm.com -- The Davenport Law Firm LLC, pro hac vice, David Christopher Wright -- dcw@mccunewright.com -, McCune Wright Arevalo, LLP, Leslie E. Hurst -- lhurst@bholaw.com -- Blood Hurst & O'Reardon LLP, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Richard Lyle Coffman -- rcoffman@coffmanlawfirm.com -- The Coffman Law Firm, pro hac vice & Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Rearden, LLC. Ford Motor Company, Defendant, represented by Tamara Alicia Bush -- tbush@dykema.com -- Dykema Gossett LLP, David Matthew George - - dgeorge@dykema.com -- Dykema Gossett PLLC, John Mark Thomas -- jthomas@dykema.com -- Dykema Gossett PLLC & Sherry Ann Rozell, McAfee and Taft, pro hac vice. GOGO INC: Kaskela Law Files Shareholder Class Action ---------------------------------------------------- Kaskela Law LLC disclosed that a shareholder class action lawsuit has been filed against Gogo Inc. (NASDAQ: GOGO) ("Gogo" or the "Company") on behalf investors who purchased or acquired the Company's common stock between February 27, 2017 and May 7, 2018, inclusive (the "Class Period"). IMPORTANT DEADLINE: Investors who purchased or acquired Gogo's common stock during the Class Period may, no later than August 27, 2018, seek to be appointed as a lead plaintiff representative of the class. Gogo investors are encouraged to contact Kaskela Law LLC (David Seamus Kaskela, Esq.) at (484) 258-1585 or (888) 715-1740 for additional information or to discuss their important legal rights and options. Gogo investors may also visit http://kaskelalaw.com/case/gogo/to submit their information to the firm. On May 4, 2018, Gogo disclosed that it was "withdrawing its previously provided 2018 guidance for Adjusted EBITDA, airborne Cash CAPEX, and airborne equipment inventory purchases related to airline-directed installations, as well as Free Cash Flow guidance." During a conference call that same , Gogo's CEO disclosed quarterly problems regarding product availability and coverage, with "the major cause [being] deicing fluid getting into the antenna raceways in which the antenna discs spin," but that "while deicing was the biggest issue there are also some manufacturing issues and software issues." On this news, shares of the Company's common stock declined $1.73 per share over the following two trading s, or over 18%, to close at $7.86 per share on May 7, 2018. Subsequently, after Moody's downgraded Gogo's credit rating to reflect "the company's weakening credit metrics, operational difficulties and deteriorating liquidity," shares of Gogo's common stock declined an additional $2.80 per share, or over 35%, to close at $5.06 per share on May 8, 2018. The shareholder class action complaint alleges that Gogo and certain other defendants made false and misleading statements during the Class Period and failed to disclose to investors that: (i) Gogo's 2Ku antenna had more reliability issues than the public was led to believe; (ii) Gogo's 2Ku antennas required costly installation and remediation challenges or required replacement due to deicing fluids from planes infiltrating the 2Ku system as well as manufacturing and software issues; and (iii) Gogo would not be able to meet its previously issued 2018 guidance. The complaint further alleges that, as a result of the foregoing, investors purchased Gogo's common stock at artificially inflated prices during the Class Period and suffered significant investment losses following the Company's disclosures. Investors may also visit http://kaskelalaw.com/case/gogo/to submit their information to the firm. David Seamus Kaskela, Esq. KASKELA LAW LLC 201 King of Prussia Road Suite 650 Radnor, PA 19087 Telephone:(484) 258 - 1585 (888) 715 - 1740 Email: skaskela@kaskelalaw.com [GN] GOGO INC: Wolf Haldenstein Files Securities Class Action -------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on July 2 disclosed that it has filed a federal securities class action lawsuit in the United States District Court for the Northern District of Illinois on behalf of all persons or entities that acquired securities of Gogo Inc. (NASDAQ:GOGO) from February 27, 2017 through May 7, 2018, both dates inclusive ("Class Period"). Investors who have incurred losses in shares of Gogo Inc. are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action on our website, www.whafh.com. If you have incurred losses in the shares of Gogo Inc. you may, no later than August 27, 2018, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in Gogo Inc. According to the filed complaint, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: -- Gogo's 2Ku antenna had more reliability issues than the public was led to believe; -- Gogo's 2Ku antennas required costly installation and remediation challenges or required replacement due to deicing fluids from planes infiltrating the 2Ku system as well as manufacturing and software issues; -- consequently, Gogo would not be able to meet its previously issued 2018 guidance; and -- as a result, the company's financial statements were materially false and misleading at all relevant times. On May 4, 2018, Gogo revealed its quarterly earnings results and said that it would not meet its earlier EBITDA profit guidance of $75M-$100M. Gogo then withdrew "its previously provided 2018 guidance for Adjusted EBITDA, airborne Cash CAPEX, and airborne equipment inventory purchases related to airline-directed installations, as well as Free Cash Flow guidance." Following this news, Gogo stock dropped 13% to close at $8.33 per share on May 4, 2018. Subsequently, on May 8, 2018, Moody's lowered Gogo's credit ratings. Following this downgrade to Caa1, Gogo stock dropped 36%, to close at $5.06 per share on May 8, 2018. Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. [GN] GOGO INC: Federman & Sherwood Files Securities Class Action ----------------------------------------------------------- Federman & Sherwood on July 1 disclosed that on June 27, 2018, a class action lawsuit was filed in the United States District Court for the Northern District of Illinois against Gogo, Inc. (NASDAQ:GOGO). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is February 27, 2017 through May 7, 2018. Plaintiff seeks to recover damages on behalf of all Gogo, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, August 27, 2018 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com Or, visit the firm's website at www.federmanlaw.com [GN] GOOD TIMES: TanaCon Attendees Mull Class Action ----------------------------------------------- Erica Steiner, writing for Blast, reports that YouTube star Tana Mongeau's TanaCon was slated to be the next big event in digital influencer gatherings, but was instead dubbed the "Fyre Festival of YouTube Conventions." Attendees claim they were scammed and are discussing a class-action lawsuit against the organizer of the event. Ms. Mongeau has millions of followers, and promoted her convention in Anaheim which would take place in June during the same time as the popular VidCon. Unfortunately, the event was a gigantic flop, and even left thousands of TanaCon attendees waiting for hours in the hot sun. The event was shut down after less than one day, and everyone who bought tickets was S.O.L. YouTuber Anamarie Olson is spearheading a movement to gather defendants for a class action suit against the promoter of the event, Good Times. She believes ticket holders should be given complete refunds, as well as compensation for "mistreatment during the event." Ms. Olson tells The Blast, "I started feeling less and less excited about the event because I had a feeling it would be very unorganized, but I hoped for the best," adding "After waiting for about 5 hours in the sun, with no shade or water or food, a representative of Good Times made an announcement that the event was cancelled for the day but would resume as scheduled Saturday with an additional location." Ms. Olson says the next morning it was announced that the convention had shut down for good without any further explanation. She now says she's planning on going after Good Times for "refunds on our tickets and travel, and also compensation for our mistreatment during the event" and is currently in talks with the same firms involved in class action lawsuits against Fyre Festival. She is not the only influencer upset, popular personality Shane Dawson said his participation and promotion of the event was the "worst decision I ever made." Ms. Olson claims to have around 200 people interested in joining her class-action lawsuit. Good Times addressed the situation after the convention wrapped, citing "over fifteen thousand unregistered guests" as the root of the problem. The company CEO also accused Tana of making promises to fans that they were unable to fulfill. [GN] GRAMERCY PROPERTY: Monteverde & Associates Files Class Action ------------------------------------------------------------- Monteverde & Associates PC on July 2 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York, Case No 1:18-cv-05335, on behalf of shareholders of Gramercy Property Trust ("Gramercy" or the "Company")(NYSE: GPT) who held Gramercy shares and have been harmed by Gramercy's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to affiliates of Blackstone Real Estate Partners VIII (the "Proposed Transaction"). In connection with the Proposed Transaction, Gramercy shareholders are only expected to receive $27.50 in cash for each share of Gramercy they own. The complaint questions the fairness of the consideration offered to the Company's shareholders, and alleges that the proxy statement regarding the Proposed Transaction (the "Proxy") fails to disclose material information that is necessary for shareholders to properly assess the fairness of the Proposed Transaction, thereby rendering certain statements in the Proxy incomplete and misleading. If you wish to serve as lead plaintiff, you must move the court no later than 60 days from the date of this notice. Any member of the putative class may move the court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: https://monteverdelaw.com/case/gramercy-property-trust. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a national class action securities and consumer litigation law firm that has recovered millions of dollars and is committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the legal team at the firm, was recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale- Hubbell as a 2017 Top Rated Lawyer. Contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 [GN] GREAT AMERICA: "Soto" FCRA Suit Remanded to State Court ------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Plaintiffs' Motion to Remand to State Court the case captioned HUGO SOTO and SHARON SOTO, individually and on behalf of similarly situated persons, Plaintiffs, v. GREAT AMERICA LLC, d/b/a SIX FLAGS GREAT AMERICA and SIX FLAGS HURRICANE HARBOR, and DOES 1 to 20, Defendants, Case No. 17-cv-6902 (N.D. Ill.). Plaintiffs Hugo and Sharon Soto each used their debit cards to purchase food five separate times at Defendant's Six Flags theme park. For each of these transactions, the Plaintiffs were provided an electronically printed receipt that included the first eight digits of their debit card numbers in addition to the last four digits. Several days later, the Plaintiffs filed a putative class action in Illinois state court alleging that the Defendant's provision of these receipts constitutes a willful violation of 15 U.S.C. Section 1681c(g)(1), a provision of the Fair Credit Reporting Act (FCRA), as amended by the Fair and Accurate Transactions Act of 2003 (FACTA). The Defendant also argues that dismissal, not remand, is appropriate here because remand to state court would be futile as the Plaintiffs lack standing. Plaintiffs' Standing Standing is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action. The Plaintiffs allege that the Defendant violated FACTA's truncation requirements on the point-of-sale receipts provided to its customers, including the Plaintiffs. The Plaintiffs do not argue that their allegations regarding lost time and increased risk of identity theft are otherwise sufficient to invoke this Court's jurisdiction. The Defendant likewise does not argue that anything about the Plaintiffs' FACTA or Class Action Fairness Act allegations creates Article III standing. A removing defendant has the burden to demonstrate a reasonable probability that subject-matter jurisdiction exists. The Defendant has not attempted to refute the Plaintiffs' concession and thus has not met this burden. Therefore, the Court agrees with the parties that the Plaintiffs lack Article III standing to bring their claims in federal court. Futility of Remand The Defendant argues, however, that the case should be dismissed rather than remanded to state court for two reasons. First, the Defendant argues that remand would be futile because Illinois imposes the same injury-in-fact requirement that federal courts do, and thus Plaintiffs have no more claim to standing in state court than they do in federal court. Second, the Defendant argues that remand would be futile because the Plaintiffs have failed to sufficiently state a claim for a willful FACTA violation. The Plaintiffs rightly acknowledge, the fact that both Illinois courts and federal courts impose an injury-in-fact standing requirement on litigants does not necessarily mean that both forums define that requirement in the same way. None of the Illinois cases that the Defendant identifies definitively state that the Illinois requirement for injury-in-fact is identical, rather than merely similar, to the federal requirement for injury-in-fact. The Plaintiffs also have pointed to a state trial court decision refusing to dismiss a procedural FACTA violation case on standing grounds, indicating that the substance of injury-in-fact differs between Illinois state and federal courts. This in turn indicates that dismissal of the Plaintiffs' claims in state court is not necessarily a foregone conclusion, as the Defendant contends. An Illinois court could conclude that the Plaintiffs' procedural FACTA violation allegations are sufficient to confer standing in state court, even if they are not sufficient to confer standing in federal court. Because the Court cannot say definitively what an Illinois state court would decide, remand rather than dismissal is appropriate. Although this means that a state court potentially has jurisdiction over a federal statutory violation in an instance where a federal court does not, this is in fact a notable quirk of the United States federalist system. The parties agree that federal subject matter jurisdiction does not exist here, and the Defendant has not demonstrated that Illinois state courts will undeniably dismiss this case on the basis of federal law. As such, remand is the appropriate course of action. A full-text copy of the District Court's May 24, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7bhjocp from Leagle.com. Hugo Soto & Sharon Soto, Plaintiffs, represented by Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, Curtis Charles Warner, Warner Law Firm, LLC, Daniel A. Edelman -- courtecl@edcombs.com -- Edelman, Combs, Latturner & Goodwin LLC, Francis Richard Greene -- fgreen@edcombs.com -- Edelman, Combs, Latturner & Goodwin LLC, James O. Latturner -- jlatturner@edcombs.com, Edelman, Combs, Latturner & Goodwin LLC & Michelle A. Alyea -- malyea@edcombs.com -- Edelman, Combs, Latturner & Goodwin, LLC. Great America LLC, administrator, Defendant, represented by Bevin Megan Brennan -- bbreman@pedersenhoupt.com -- Pedersen & Houpt, P.C. & Spencer S. Persson -- spencer.persson@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, pro hac vice. GRIMALDI INC: Employees File Wage Class Action in New York ---------------------------------------------------------- Anne Cullen, writing for Law360, reports that a proposed class of employees for the well-known New York City pizzeria chain Grimaldi's on June 29 asked a federal court for certification in their putative class action suit claiming the chain's five locations, including its famous original outpost under the Brooklyn Bridge, didn't give them accurate wage notices and sometimes failed to pay front of the house employees any wages whatsoever. The motion seeks to certify a class of cooks, pizza makers, food prep employees, dishwashers, wait staff, busboys and counter employees. The case is captioned Omar et al v. 1 Front Street Grimaldi, Inc. et al, Case No. 1:16-cv-05824 (E.D.N.Y.). The case is assigned to Judge LaShann DeArcy Hall. The case was filed October 18, 2016. [GN] HANNIBAL, MO: Prelim. Settlement Reached in Water Quality Suit -------------------------------------------------------------- Ashley Szatala, writing for Herald-Whig, reports that a more than 2-year-old class-action lawsuit against the city of Hannibal and the Hannibal Board of Public Works over alleged water quality violations will come to a close after a preliminary agreement was reached in the case. The BPW and the city have agreed to jointly commit a minimum of $5 million to investigate and implement water quality improvements, and a minimum $205,000 settlement fund has been established to reimburse ratepayers who submit a valid claim for out-of-pocket costs for medical testing designed to aid in the early detection of certain medical conditions associated with the ingestion of disinfection byproducts created when disinfecting drinking water with chloramine. Hannibal residents Crystal Stephens, O.C. Latta, Christine Stolte and Vickie Brooks filed the lawsuit in Marion County Circuit Court in March 2016 and have been seeking punitive and compensatory damages for Hannibal residents who have paid for and used water supplied by the BPW for at least three years between September 2011 and February 2016. The case was moved to the St. Louis County 22nd Judicial Circuit Court in May 2016. The suit did not specifically address the BPW's use of chloramines to disinfect drinking water, but the group alleged that the BPW was negligent for supplying water "unfit for human use" because of elevated levels of total trihalomethanes, a disinfection byproduct, during that time. Missouri's web-based reporting system Case.net shows that a joint motion for preliminary approval of a class-action settlement on behalf of all parties was filed June 6, and the preliminary settlement was certified by Judge Michael Jamison on June 13. On June 20, the plaintiff's motion to dismiss the Missouri Department of Natural Resources as a defendant without prejudice was granted, and the claims against defendants Latta, Stephens, Stolte and Brooks were dismissed without prejudice. Court documents from the Circuit Court detail specifics of "this complex environmental class action" and the settlement. "The litigation was hard fought. . . . Defendants have denied any wrongdoing concerning the allegations in these cases. The Hannibal Defendants further dispute any allegation of causation and damages," the document says. It continues by saying several issues in the suit would need to be tried before a jury, including the ability of total trihalomethanes to cause harm to people who ingest them, the type of harm the chemicals can cause to a person, and the amount of damages associated with the ingestion of total trihalomethanes. But what a judge or jury would do with the facts in this case would be difficult to predict. "If this case was to continue, it would likely involve . . . ongoing voluminous discovery, depositions and other preparations with a likelihood of prolonged litigation of several more years to resolve," the document says. "This settlement avoids the delay and the uncertainties of further litigation." The document says counsel for the city and the BPW confirmed there is no insurance providing indemnity for the claims being asserted in the case, and the risk of having to pay a judgment in this litigation could potentially cause great financial harm and would leave the plaintiffs with no viable remedy. The only additional money available would be those generated by raising rates on the very class members represented by the plaintiffs. "The class . . . receives an opportunity to seek and receive potentially full reimbursement, but at a minimum partial compensation, for early detection of latent disease. However, by compromise, defendants avoid the potential of being faced with a large verdict against them," the document says. "This case offers relief to thousands of class members who drank and would otherwise continue to drink water with excessive levels of TTHMs." The BPW has already made headway on one of the two settlement agreements. In April, the board of the BPW approved a granulated activated carbon water filtration system that will cost $14.35 million to install. It's scheduled to be operating by March 2020. Hannibal voters are being asked to approve a $17.5 million bond issue Aug. 7 to pay for the new filtration system. Notices about the proposed settlement are being sent in the mail to people who were BPW customers from September 2011 through February 2016. Those who want to submit a claim for reimbursement must provide a receipt or invoice for a urinalysis for blood and urine cytology for the detection and early treatment of urinary, bladder or kidney disease. The test or tests must be administered before a certain period, the document says. Case.net says a final hearing regarding the settlement will be at 1:30 p.m. Aug. 24 at the St. Louis County Court building in Clayton, Mo. [GN] HORIZON BLUE CROSS: Pays NJ Surgery Centers $160MM to Settle Suit ----------------------------------------------------------------- Susan K. Livio, writing for NJ.com, reports that a 13-year-old class-action lawsuit accusing New Jersey's largest insurance carrier of short-changing surgery centers across the state ended on June 29, resulting in a settlement of at least $160 million, federal court records and the lead attorney in the case said. Horizon Blue Cross Blue Shield of New Jersey denies the "material factual allegations and legal claims" contained in the lawsuit, but both sides agreed to settle and avoid further protracted and expensive litigation, according to the settlement. The settlement is an important win for the 180 same- surgery centers who make up the class, and for the people who use them, said Bruce Nagel, Esq. -- bnagel@nagelrice.com -- of Nagel Rice of Roseland, the lead attorney representing the plaintiffs. The surgery centers have already received all but $4 million of the settlement money, which Horizon is expected to submit within 30 s, Nagel said. "What it means is if the surgery centers get a higher reimbursement, the co-pay for individuals is less. It helps the public, and helps the surgery centers who should be paid for their work they do. And through this lawsuit, we have ensured that they will." He described it as the largest settlement of a case in New Jersey seeking reimbursement for out-of-network services, and estimated the total amount could be closer to $200 million. The lawsuit, filed in federal court in 2005, sought the money surgery center operators said Horizon shortchanged them when the nonprofit health insurance company altered its payment formula in 2004, Nagel said. Horizon changed its formula back in 2008, according to the settlement, and began making reimbursements based on the proper "prevailing healthcare charges system." Horizon spokesman Tom Vincz said the settlement "represents final closure of the matter." "This was a long and protracted settlement in which the plaintiffs initially demanded many multiples of the final settlement amount," Vincz said. "Over the years, litigants dropped out of the case and or settled on their own." The terms of the settlement were reached in January, but it took six months to notify all of the surgery centers. The final court appearance was before U.S. District Court Judge Kevin McNulty in Newark. Collectively, Horizon has paid out $20 million more in reimbursement to the centers every year since 2008, Nagel said. It's a whopping figure he said Horizon refused to release until only recently. "For many of these centers, they did not know they were under- reimbursed. This is found money they never realized we created for them,' Nagel said. "It benefits virtually every single one" of the surgery centers in New Jersey," with the exception of two that opted-out of the settlement, Nagel said.[GN] HORIZON HEALTHCARE: Fails to Comply with Discovery Orders --------------------------------------------------------- Bill Wichert, writing for Law360, reports that consumers have told a New Jersey federal court that Horizon Healthcare Services Inc. has refused to comply with discovery orders in a putative consolidated class action over a data breach involving information on roughly 839,000 consumers that was stored on stolen laptops, with the insurer responding its adversaries are seeking unnecessary materials. The case is styled IN RE HORIZON HEALTHCARE SERVICES INC. DATA BREACH LITIGATION, Case No. 2:13-cv-07418 (D.N.J.). The case is assigned to Judge Claire C. Cecchi. The case was filed December 11, 2013. [GN] IESI BETHLEHEM: Faces Class Action Over Landfill Odors ------------------------------------------------------ Michelle Merlin, writing for Of The Morning Call, reports that a federal lawsuit has been filed against a Lower Saucon Township landfill, alleging its pollutants, air contaminants and noxious odors are harming surrounding properties. The complaint, filed against IESI Bethlehem Landfill in U.S. District Court, alleges the facility's "sickening odors" reduce property values, keep them indoors and and at times permeate the walls of their homes, requiring them to keep windows and doors shut. The plaintiffs, Robin and Dexter Baptiste, of Freemansburg, are asking a judge to allow any willing residents within a 2.5 mile radius of the landfill to join the legal action. The area has more than 8,400 households, according to their complaint About 85 households already have contacted the plaintiff's attorneys, documenting odors they attribute to the landfill, according to the complaint. Kevin Riechelson, their attorney, could not be reached for comment. Don Hallock, the district general manager for Waste Connections, said on June 29 he didn't know about the lawsuit until The Morning Call told him about it. Waste Connections owns the landfill operator. "We don't have any off-site odors, so how could anybody do something like that?" he said. The Baptistes allege in the complaint that the landfill on Applebutter Road is a public and private nuisance and that its operators were negligent and improperly ran it so that odors, pollutants and air contaminants reached the property "on occasions too numerous to recount." The state Department of Environmental Protection found eight permit and code violations at the landfill in April. DEP said it found six waste management violations for failing to maintain a uniform, intermediate cover to prevent odors, litter and other nuisances, as well as for failing to fully implement a gas control and monitoring plan and to fix deficiencies found during other inspections and other issues, according to the waste management inspection report. Two air quality violations were based on the landfill failing to report visible gas on April 1 to the DEP within four hours of the incident, and for not fully implementing a gas collection and control system design plan, according to the air quality report. The violations were the landfill's first since 2015. The Baptiste's lawsuit lists violations going as far back as 2012, and notes that residents have made complaints to the DEP about odors in the past. A health impact study the state Department of Health released in January 2017 was inconclusive because of "limited monitoring information." Monitoring did not detect three odor-causing chemicals typically associated with landfills: hydrogen sulfide, acetaldehyde and carbon disulfide. However, the instrument's minimum detection limits were higher than the odor threshold values for the chemicals, the report stated. The landfill in September 2017 received a state permit to expand, extending its life by five and a half years. [GN] ILLINOIS: Court Enters Prelim Injunction in "Rasho" Suit -------------------------------------------------------- In the case, ASHOOR RASHO, et al., Plaintiff, v. ROGER E. WALKER, et al., Defendants, Case No. 07-1298 (C.D. Ill.), Judge Michael M. Mihm of the U.S. District Court for the Central District of Illinois, Peoria Division, granted the Plaintiffs' Motion for Enforcement of the Settlement Agreement and their Motion to Amend Request for Relief and Memorandum on the Enforcement Process. The case is a class action brought under 42 U.S.C Section 1983 alleging violations of the Eighth Amendment of the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. The Plaintiffs challenge the adequacy of the delivery of mental health services to mentally ill prisoners in the physical custody and control of the Illinois Department of Corrections ("IDOC"). On Aug. 14, 2015, the Court certified the class in the case for purposes of litigation, and pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, as follows: Persons now or in the future in the custody of the IDOC who are identified or should have been identified by the IDOC's mental health professionals as in need of mental health treatment as defined in the current edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. A diagnosis of alcoholism or drug addition, developmental disorder, or any form of sexual disorder will not, by itself, render an individual mentally ill for the purpose of this class definition. Often referenced by both Parties, the case involves inmates who are seriously mentally ill. There are approximately 44,000 inmates in the custody of the IDOC, of whom more than 12,000 are believed to be mentally ill. Approximately 4,800 of these inmates are considered seriously mentally ill. Rasho, Patrice Daniels, Gerrodo Forrest, Keith Walker, Otis Arrington, Donald Collins, Joseph Herman, Henry Hersman, Rasheed McGee, Fredricka Lyles, Clara Plair, Desiree Hollis, and Crystal Stoneburner serve as the class representatives. The Defendants are John Baldwin, the Acting Director of the IDOC and Dr. Hinton, the Department's Chief of Mental Health Services and Addiction Recovery Services. The Parties entered into a comprehensive settlement agreement resolving the action set forth in the Plaintiffs' Third Amended Complaint, the operative complaint in the matter. A fairness hearing was held on May 13, 2016. During the hearing, the Court found the agreement to be fair and reasonable, over the voluminous objections that were filed by various inmates. The instant Motions are brought alleging violations of the Settlement Agreement and the Constitution. Judge Mihm finds that a preliminary injunctive hearing is the appropriate mechanism. The Defendants have objected to this mechanism arguing the Plaintiffs will never have the obligation of actually proving there is a violation of federal law. He disagrees as the Plaintiffs will have to seek permanent relief at some point in this proceeding. He finds the procedure utilized is consistent with the terms of the Settlement Agreement and the PLRA. The Judge further finds that the Plaintiffs have established all of the necessary requirements for a preliminary injunction to be issued. He finds that the Plaintiffs will suffer irreparable harm before the final resolution of the claims. In the end, the Judge holds that there is little harm in requiring the Defendants to do what they agreed to do, budgeted to do, and, based on this record, are constitutionally required to do. Accordingly, in order to bring the Defendants into compliance with constitutional law and to prevent further harm to the Plaintiffs Class Members, Judge Mihm orders as follows: 1. For any class member placed on a mental health crisis watch: a. IDOC will provide appropriate mental health treatment to stabilize the symptoms and protect against decompensation. b. Reevaluations of treatment and medication will occur as needed and mental health treatment will be determined and any necessary interventions to stabilize individuals will occur. c. Daily assessment in a confidential setting of patient's progress to determine if the patient is moving towards stability, whether other or additional treatments are indicated, or if transfer to a higher level of care is required. d. Prior to discharge from crisis watch multidisciplinary team with the patient will review and update the treatment plan. e. Prior to discharge from crisis watch an appropriate mental health professional with the patient will review and update the treatment plan which will apply after discharge from crisis watch. The updated treatment plan will address causes which led to the deterioration and the plan for risk management to prevent relapse. f. For anyone who does not stabilize sufficiently to be discharged from crisis watch, the treatment team must establish a plan to provide a higher level of care, which may include transfer to a higher level of care facility, or explain in writing why establishing such a plan is not appropriate. 2. As to the class members housed in Control Units: a. Mental Health Professionals will assess any class member promptly after initial placement in administrative detention, disciplinary segregation, or other similar restrictive status (collectively referred to as Control Unit). Such review will be documented in the patient's progress notes. The purpose of the assessment will be at a minimum to determine whether the patient has decompensated and should be removed from the Control Unit and to provide a baseline against which any future decompensation or deterioration of the patient's mental status can be measured b. The class members who are in a Control Unit for periods of sixteen days or more will receive care that includes at a minimum: i. Continuation of their mental health treatment plan with such treatment as necessary to protect from any decompensation. ii. Rounds in every section of each Control Unit at least every seven days by appropriate mental health staff. iii. Pharmacological treatment (if applicable). iv. Participation in multidisciplinary team meetings to the extent clinically appropriate. v. MHP or mental health treatment team recommendations to post-segregation housing. c. The class members in any Control Unit for periods longer than 60 days will be provided with structured and unstructured out of cell time sufficient to protect against decompensation. d. Mental health staff will assess class members in Control Units to determine if a higher level of care is necessary and if so, to make proper recommendations to facility authority. Within 90 days of the order, the Defendants will provide sufficient staff to address constitutional violations in the five areas identified in the order. Within 60 days of the order, the Defendants will evaluate whether their current staffing plan is sufficient to provide mental health treatment consist with constitutional law in the areas of treatment planning, medication management, mental health care on crisis watches, mental health care in segregation, and mental health evaluations. The Defendant will report on their findings and submit a proposed amended staffing plan, if necessary, to the monitor and the Plaintiffs' counsel. The class members who are prescribed psychotropic medication will be evaluated by a psychiatric provider at regular intervals consistent with constitutional standards. The IDOC will accomplish the following in psychiatric services: a. Administer medications to all class members in a manner that provides reasonable assurance that prescribed psychotropic medications are actually being delivered to and taken by the offenders as prescribed. b. The regular charting of medication efficacy and side effects, including both subjective side effects reported by the patient, such as agitation, sleeplessness, and suicidal ideation, and objective side effects, such as tardive dyskenesia, high blood pressure, and liver function decline. c. Take necessary steps to ascertain side effects including client interviews, blood tests, blood pressure monitoring, AIMs review, and neurological evaluation. d. The timely performance of lab work for these side effects and timely reporting on results. e. The class members for whom psychotropic drugs are prescribed receive timely explanations from appropriate medical staff about what the medication is expected to do, what alternative treatments are available, and what in general are the side effects of the medication; and have an opportunity to ask questions about this information before they begin taking the medication. f. That the class members, including offenders in a Control Unit who experience medication noncompliance, as defined, are visited by an MHP. If, after discussing the reasons for the offender's medication noncompliance said noncompliance remains unresolved, the MHP will refer the offender to a psychiatric provider. All class members will have a treatment plan that is individualized and particularized based on the patient's specific needs, including long and short term objectives, updated and reviewed with the collaboration of the patient to the fullest extent possible. The treatment plans will be reviewed and updated at regular intervals as clinically necessary to assess the progress of the documented treatment goal and update the plan accordingly. A quarterly report created by IDOC will certify each facility's compliance with the requirements. Nothing in the order relieves the Defendants of their obligations under the Settlement Agreement. The preliminary injunction will expire 90 days after its entry, unless the Court enters a final order for prospective relief before then. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/HfZn2O from Leagle.com. Ashoor Rasho, Otis Arrington, Donald Collins, Joseph Herman, Henry Hersman, Rasheed McGee, Fredricka Lyles, Clara Plair, Desiree Hollis & Crystal Stoneburner, Plaintiffs, represented by Alan Mills, UPTOWN PEOPLE'S LAW CENTER, Amanda C. Antholt -- amanda@equipforequality.org -- EQUIP FOR EQUALITY INC, Barry C. Taylor -- barryt@equipforequality.org -- EQUIP FOR EQUALITY INC, Harold C. Hirshman -- harold.hirshman@dentons.com -- DENTONS US LLP, Laura J. Miller -- laura@equipforequality.org -- EQUIP FOR EQUALITY INC, Marc R. Kadish -- mkadish@mayerbrown.com -- MAYER BROWN LLP, Matthew V. Wargin -- mwargin@mayerbrown.com -- MAYER BROWN LLP & Nicole Rae Schult, UPTOWN PEOPLE'S LAW CENTER. Patrice Daniels, Gerrodo Forrest & Keith Walker, Plaintiffs, represented by Alan Mills, UPTOWN PEOPLE'S LAW CENTER, Amanda C. Antholt, EQUIP FOR EQUALITY INC, Barry C. Taylor, EQUIP FOR EQUALITY INC, Harold C. Hirshman, DENTONS US LLP, Laura J. Miller, EQUIP FOR EQUALITY INC, Marc R. Kadish, MAYER BROWN LLP & Nicole Rae Schult, UPTOWN PEOPLE'S LAW CENTER. Frederick Walker, Plaintiff, represented by Nicole Rae Schult, UPTOWN PEOPLE'S LAW CENTER. Eddie Jones, Dr Willard Elyea, Medical Director & Dr Wendy Blank, Chief of Medical Health Services of IDOC, Defendants, represented by Heidi Hildebrand, ILLINOIS ATTORNEY GENERAL, Desiree K. Kumar, OFFICE OF THE ATTORNEY GENERAL, R. Douglas Rees, OFFICE OF THE ATTORNEY GENERAL & Terence J. Corrigan, ILLINOIS ATTORNEY GENERAL. Dr. John Garlic, Pontiac Supervising Clinical Psychologist, Melody Ford, Chairperson Administrative Review Board I.D.O.C. & Roberta Fews, Deputy Director, Defendants, represented by Heidi Hildebrand, ILLINOIS ATTORNEY GENERAL & R. Douglas Rees, OFFICE OF THE ATTORNEY GENERAL. John R Baldwin, Director, Defendant, represented by Desiree K. Kumar, OFFICE OF THE ATTORNEY GENERAL, R. Douglas Rees, OFFICE OF THE ATTORNEY GENERAL & Terence J. Corrigan , ILLINOIS ATTORNEY GENERAL. INNERWORKINGS INC: Faruqi & Faruqi Files Class Action Lawsuit ------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in InnerWorkings, Inc. ("InnerWorkings" or the "Company") (NASDAQ:INWK) of the July 9, 2018 deadline to seek the role of lead plaintiff in a federal securities class action that has been filed against the Company. The lawsuit has been filed in the U.S. District Court for the Central District of California on behalf of all those who purchased InnerWorkings securities between August 11, 2015 through May 7, 2018 (the "Class Period"). The case, Errol Brown v. InnerWorkings, Inc. et al, No. 2:18-cv-03914 was filed on May 10, 2018. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose that: (1) InnerWorkings' financial statements for the fiscal years ending December 31, 2017, 2016, and 2015 as well as all interim periods contained errors that required restating; and (2) InnerWorkings' financial statements were materially false and misleading at all relevant times. Aftermarket on May 7, 2018, InnerWorkings issued a press release disclosing that many of the Company's historical financial statements contained errors and that it "will be restating its financial statements for the years ended December 31, 2017, 2016, and 2015, and all interim periods within those years." On this news, InnerWorkings's share price fell from $9.68 per share on May 7, 2018 to a closing price of $9.06 on May 8, 2018-- a $0.62 or a 6.4% 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 also encourages anyone with information regarding InnerWorkings's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. If you invested in InnerWorkings stock or options between August 11, 2015 and May 7, 2018 and would like to discuss your legal rights, click here: www.faruqilaw.com/INWK. There is no cost or obligation to you. Richard Gonnello, Esq FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 (212) 983-9330 Email: rgonnello@faruqilaw.com[GN] IQOR HOLDINGS: Loses Interlocutory Appeal Bid in "Shoots" Suit -------------------------------------------------------------- In the case, Paris Shoots, Jonathan Bell, Maxwell Turner, Tammy Hope, Phillipp Ostrovsky, Brenda Brandt, Anissa Sanders, Najai McCutcheon, and Michael Chavez, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Plaintiffs, v. iQor Holdings US Inc., Defendant, Case No. 15-cv- 563 (SRN/SER) (D. Minn.), Judge Susan Richard Nelson of the U.S. District Court, D. Minnesota denied the Defendant's Motion to Certify Interlocutory Appeal. The Plaintiffs are all current or former employees of iQor, for which they worked as call center workers, or contact center agents ("CCAs"). They filed the putative collective action/class action alleging violations of the Fair Labor Standards Act ("FLSA") and several states' laws stemming from iQor's use of a timekeeping system called TimeQey. They assert that the TimeQey system underreported their hours by taking them off the clock after two minutes of computer inactivity, not compensating them for log-in time, and creating time gaps. The Defendant denies any violations. In October 2015, the Court granted the Plaintiffs' motion for conditional FLSA certification. Specifically, it certified a collective action for current or former iQor CCAs who used TimeQey for timekeeping purposes during the three years prior to the commencement of the action, and who worked more than 40 hours during any workweek in that period. Approximately 3,500 people opted into the FLSA collective action. In August 2017, iQor moved to decertify the FLSA collective and the Plaintiffs moved for class certification under Federal Rule of Civil Procedure 23. On March 27, 2018, the Court granted in part, and denied in part, iQor's FLSA decertification motion, and denied Plaintiffs' Rule 23 motion. Specifically, the Court denied iQor's motion as it related to claims for unpaid breaks of 20 minutes or less. Shortly after the Court issued its ruling, the Plaintiffs sought a 60-day stay of the Order's effective date. They explained that a stay would give the FLSA opt-in Plaintiffs and putative Rule 23 class members an opportunity to evaluate their respective legal options in light of the Court's ruling. The Court granted the request and proceedings are currently stayed for 60 days from the date of the Court's March 27 Order. On April 11, 2018, iQor filed the instant motion. It asks the Court to certify the following question to the Eighth Circuit Court of Appeals on an interlocutory basis: Whether the employee rest breaks of 20 minutes or less are governed by: (1) the predominantly-for-the-benefit-of-the-employer test, which looks at the purpose of the break to determine compensability; or (2) the bright-line rule in Department of Labor regulation 29 C.F.R. Section 785.18, which presumes compensability for such breaks. The Defendant argues that an interlocutory appeal is appropriate because the applicable standard for the payment of short rest breaks is a controlling question of law, there are substantial grounds for a difference of opinion on the issue, and an appeal would materially advance the ultimate termination of this litigation. They argue that this is not one of the rare circumstances warranting an interlocutory appeal and that an an immediate appeal would instead unnecessarily delay the litigation. As Judge Nelson observed in the March 27, 2018 Order, the Department of Labor ("DOL") regulations address the compensability of various types of employee breaks under the FLSA, including rest periods of short duration that are compensable, as they promote the efficiency of the employee. The Court noted that a bright-line rule either applies to the short breaks, in which case the FLSA Plaintiffs are similarly situated, or it does not, making the employees less likely to be similarly situated, as individual issues may inform liability. It applied the bright-line test, but had it ruled to the contrary and applied the predominant-benefit test, such a ruling would have been "quite likely" to influence the course of the litigation. Accordingly, the Judge finds that the March 27, 2018 Order addresses a controlling question of law. With respect to the instant motion, the Judge does not find that substantial grounds for a difference of opinion are present. It is true that in the March 27, 2018 Order, the Court recognized that district courts within the Circuit have reached differing results with respect to Section 785.18. But those different results largely turned on different questions of fact, as the Court's ruling made clear. Nor is the Judge persuaded that a lack of Eighth Circuit precedent warrants certification for interlocutory review. She says she has no reason to believe that the Eighth Circuit would rule differently now, given the applicability of one of the very same regulations here. In sum, she finds that iQor has not met its burden of establishing the existence of substantial grounds for difference of opinion. More importantly, the Judge finds that the considerable delay and expense for all parties and courts created by an interlocutory appeal weighs heavily against granting certification. If the Court's rulings are upheld, he says the litigation in the matter will have been dramatically and unnecessarily prolonged, at significant expense to both parties, by an interlocutory appeal. The fact that the Plaintiffs requested a 60-day stay primarily for administrative purposes does not in any way lessen the significant impact of delay were this Court to certify an interlocutory appeal. For all of these reasons, the Judge finds that certification of an interlocutory appeal would not materially advance the litigation. Judge Nelson concludes that iQor fails to meet its heavy burden of demonstrating that the issue it seeks to certify is so extraordinary that an interlocutory appeal is warranted. It will have the opportunity to challenge the Court's rulings on appeal after final judgment is rendered. However, an interlocutory appeal on these issues would only serve to delay the proceedings and presents the risk of creating piecemeal, incomplete, and potentially unnecessary appeals. Therefore, she denied the Defendant's Motion to Certify Interlocutory Appeal. A full-text copy of the Court's May 25, 2018 Memorandum Opinion and Order is available at https://is.gd/QThCsg from Leagle.com. Paris Shoots, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Jonathan Bell, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Maxwell Turner, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Tammy Hope, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Phillipp Ostrovsky, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Brenda Brandt, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Anissa Sanders, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Najai McCutcheon, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated & Michael Chavez, on behalf of themselves, the Proposed Rule 23 Classes, and others similarly situated, Plaintiffs, represented by Brian T. Rochel -- rochel@teskemicko.com -- Teske Micko Katz Kitzer & Rochel, PLLP, Carl F. Engstrom -- cengstrom@nka.com -- Nichols Kaster, PLLP, Douglas L. Micko -- micko@teskemicko.com -- Teske, Micko, Katz, Kitzer & Rochel, PLLP, Rachhana T. Srey -- srey@nka.com -- Nichols Kaster, PLLP, Robert L. Schug -- schug@nka.com -- Nichols Kaster PLLP, Timothy C. Selander -- selander@nka.com -- Nichols Kaster, PLLP & Vildan A. Teske -- teske@teskemicko.com -- Teske, Micko, Katz, Kitzer & Rochel, PLLP. iQor Holdings US, Inc., Defendant, represented by Brian T. Benkstein -- brian.benkstein@jacksonlewis.com -- Jackson Lewis P.C., Gina K. Janeiro -- janeirog@jacksonlewis.com -- Jackson Lewis P.C., Robert James Lee -- roblee@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice, Shon Morgan -- shonmorgan@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & Viola Trebicka -- violatrebicka@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice. JP MORGAN: Judge Approves $4.6MM Class Action Settlement -------------------------------------------------------- Raychel Lean, writing for Law.com, reports that Coral Gables attorney Tal J. Lifshitz -- tjl@kttlaw.com -- of Kozyak Tropin Throckmorton received approval from the District Court of Massachusetts for a $4.6 million settlement to resolve a class action suit with JPMorgan Chase & Co. after five years of litigation. The lawsuit was brought on behalf of almost 200 investors who claimed they were cheated in a Ponzi scheme led by convicted fraudster William Wise. Mr. Lifshitz worked on the case with Harley S. Tropin, a founding partner of Kozyak Tropin Throckmorton, along with Boston lawyer Keith Miller of the Law Offices of Keith L. Miller, who served as co-counsel. The suit accused JPMorgan of aiding and abetting Mr. Wise, who ran his scheme from Millennium Bank in St. Vincent and Grenadines, a Caribbean island. Mr. Wise allegedly used bogus certificates of deposit promising high returns to fool investors into parting with their money, which he then diverted to his personal accounts at Washington Mutual and later JPMorgan. "Fairly often in these types of fraud cases, there is at least some sort of legitimate business going on," Mr. Lifshitz said. "This was just a total sham." The 2012 complaint claimed investors purchased "or otherwise acquired" bogus certificates of deposit from promoters of the Millennium Ponzi scheme from Sept. 25, 2008, to March 9, 2009. Wise, along with co-defendants Jacqueline and Kristi Hoegel, allegedly used various personal accounts in the U.S. to siphon away millions of dollars. The U.S. Securities and Exchange Commission dropped its conspiracy, mail fraud and wire fraud charges against Jacqueline Hoegel in 2013 and settled with her daughter, Kristi. Investigators said Wise used WaMu branches in Napa Valley, California, and Las Vegas before the bank's 2009 rebranding as Chase. In this case, the plaintiffs alleged Chase employees, specifically Napa branch manager Tamara Ressler, were facilitators of the scheme. "Ressler observed a high volume of checks being deposited into the Millennium accounts, including memos describing the terms and interest of the Millennium CDs, observed that Wise and the Hoegels were not placing any money in legitimate enterprises, received calls from investors regarding the nature of the Millennium business, established a remote wiring interface to reduce Millennium's visibility at branch offices, and assisted Wise and the Hoegels in having restraints removed from personal and Millennium accounts," the motion for settlement approval said. Mr. Wise "was getting money in, then he was using it to fund his travel and his rock-star lifestyle. Then when investors complained about where their money was, he would use other investors' money to keep them quiet and prolong his scheme," Mr. Lifshitz said. In 2009, the SEC moved to shut down the operation. Its complaint said investors were promised "return rates up to 321 percent higher than legitimate bank-issued certificates of deposit." "It was all very appealing," Mr. Lifshitz said. "He tried to dress it up by telling investors that he had a connection in Geneva, Switzerland, and that he was using a foreign private bank so he was able to get them these tremendous returns." The ploy had all the common threads of a typical Ponzi scheme, he said. "It's impossible for a Ponzi schemer to make these types of things happen on their own without help," Mr. Lifshitz said. The key to handling a case like this, according to Mr. Lifshitz, is to keep the argument as straightforward and streamlined as possible, avoiding all possible tangents and conspiracy theories, to focus solely on the facts. "Our theory was that the bank had knowledge about unlawful activity that was going on with William Wise and his bank account, and that by allowing the scheme to continue they allowed the scheme to survive longer than it otherwise would have," Mr. Lifshitz said. For a case involving more than 30,000 pages of documents, the front-end investigation was paramount to its success. Co-counsel Miller took the lead, interviewing more than 200 witnesses, including Wise, his attorneys, the Hoegels, WaMu and Chase employees, as well as investors. Also key to the investigation was Richard B. Roper of Texas law firm Thompson & Knight, who was appointed by the court to act as receiver for Millennium Bank in efforts to shut down Wise's operation. "The receiver can often provide us expert testimony in this case because the receiver knows the ins and outs of the fraud better than anybody, other than the fraudster themselves," Mr. Lifshitz said. As a court-appointed receiver, it was Roper's obligation to go in and absorb everything he could about Wise's business. Mr. Lifshitz said his team worked with Roper as part of the settlement process because they shared a common goal of maximum recovery. Opposing counsel, Beth I.Z. Boland -- bboland@foley.com -- and Michael Thompson -- mxthompson@foley.com -- of Foley & Lardner's Boston office, posed challenges along the way. They did not respond to requests for comment by deadline. "There was an appeal at one point on an evidentiary issue," Mr. Lifshitz said. "And there were a lot of challenges that the case lawyers brought in terms of whether the case was appropriate as a class action or not." In the defendant's consent order, there was no admission of wrongdoing by JPMorgan. When U.S. Magistrate Judge Judith G. Dein issued preliminary approval for the settlement, Mr. Lifshitz couldn't wait to tell the name plaintiffs. "They were so appreciative of everything we did at every step, without ever expecting anything," he said. "When we were able to tell them that we were able to reach an agreement, they were extraordinarily grateful." Mr. Lifshitz has been with Kozyak Tropin for almost five years working on a host of cases involving fraud, contract disputes and antitrust. Most notably, he represented victims of the billion- dollar Ponzi scheme run by disbarred Fort Lauderdale lawyer Scott Rothstein. What Mr. Lifshitz values most about his job is having the opportunity to win back what clients have lost. "We do this because every once in a while you're able to get good results," he said. "You're able to speak to investors who've been defrauded in a case like this, and . . . able to tell them that you're able to recover, even if it's just a portion of their money." The case is styled Mansor vs. JPMorgan Chase Bank, Case No. 12-cv-10544 (D. Mass.). The case was filed on March 23, 2012. The case was settled on June 22, 2018. The judge overseeing the case is assigned to Judge U.S. Magistrate Judge Judith Dein. The Plaintiffs' attorneys are Harley Tropin and Tal Lifshitz, Kozyak Tropin Throckmorton, Coral Gables; Keith Miller, Law Offices of Keith L. Miller, Boston. The defense attorneys are Beth Boland and Michael Thompson, Foley & Lardner, Boston. [GN] KANSAS: Court Enters Show Cause Order in "McCorkendale" Suit ------------------------------------------------------------ Judge Sam A. Crow of the U.S. District Court for the District of Kansas has entered a memorandum and order to show cause requiring the Plaintiff to show good cause why the case, SCOTT McCORKENDALE, Plaintiff, v. JOE NORWOOD., et al., Defendants, Case No. 17-3225-SAC (D. Kan.), should not be dismissed due to the deficiencies in his Complaint. The Plaintiff purports to bring the action on behalf of himself and other similarly-situated individuals. He filed the civil rights action alleging the "mistreatment" of him and similarly- situated inmates at the Oswego Correctional Facility (the El Dorado Correctional Facility-Oswego in Oswego, Kansas). He claims that Defendants are falsifying disciplinary reports, physically injuring inmates without justification, and committing other unlawful acts against him and others, and have no adequate Grievance procedure in place to resolve inmate complaints about their unlawful actions. The Plaintiff alleges that the Defendants regularly: deprive him and other similarly-situated inmates of property without due process; discriminate against inmates on the basis of race by subjecting non-white inmates to disciplinary segregation, forfeiture of good time credits, deprivation of property, and deprivation of privileges and custody classification, at a rate greatly disproportionate to white inmates; unjustly deny parole or good time credits; subject inmates to emotional, psychological and physical abuse; fail to answer grievances and retaliate against inmates filing complaints. He alleges in Count I violations of the Eighth and Fourteenth Amendments. The Plaintiff alleges as Count II, violations of the Kansas Tort Claims Act. As Count III, he alleges a First Amendment violation for the Defendants' failure to provide an adequate and effective grievance procedure. The Plaintiff also alleges a conspiracy. The Plaintiff names as the Defendants: Joe Norwood, Secretary of Corrections of the State of Kansas; (fnu) Miller, Deputy Warden; (fnu) Rion, Security Supervisory Staff; (fnu) Philbrick, Security Supervisory Staff; (fnu) Henley, Captain; (fnu) Zenk, Lt.; (fnu) Spencer, Lt.; (fnu) Harris, Staff Sgt.; (fnu) Snyder, Staff Sgt.; (fnu) Pettit, Staff Sgt.; (fnu) Kepner, Guard; (fnu) Brenner, Guard; and John and Jane Does. The Plaintiff seeks declaratory relief, a preliminary and permanent injunction, compensatory damages of $10,000 from each Defendant, and punitive damages against each Defendant in the amount of $10,000. He also seeks to have the employment of Defendants Brenner and Kepner terminated. Among other things, Judge Crow finds that (i) the Plaintiff has failed to allege how any of the Defendants, other than Defendant Brenner, personally participated in the deprivation of his constitutional rights; (ii) the Plaintiff fails to allege which Defendants retaliated against him and his allegations regarding retaliation are generally conclusory, lacking facts to demonstrate any improper retaliatory motive; (iii) the Plaintiff has failed to allege any facts regarding an alleged deprivation of property, or that an adequate post-deprivation remedy was unavailable; (iv) the Plaintiff's conclusory allegation of a conspiracy is insufficient to state a claim; (v) the Plaintiff's request for compensatory damages is barred by 42 U.S.C. Section 1997e(e), because he has failed to allege a physical injury; and (vi) the Plaintiff, appearing pro se, cannot adequately represent a class. For these reasons, the Judge required the Plaintiff until June 25, 2018 to show good cause why his Complaint should not be dismissed for the reasons stated. The Plaintiff is also given the opportunity to file a complete and proper Amended Complaint upon court-approved forms that cures all the deficiencies. The Plaintiff is given time to file a complete and proper Amended Complaint in which he (1) shows he has exhausted administrative remedies for all claims alleged; (2) raises only properly joined claims and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional violation and show a cause of action in federal court; and (4) alleges sufficient facts to show personal participation by each named Defendant. If the Plaintiff does not file an Amended Complaint within the prescribed time that cures all the deficiencies, the matter will be decided based upon the current deficient Complaint. The clerk is directed to send Section 1983 forms and instructions to the Plaintiff. A full-text copy of the Court's May 25, 2018 Memorandum and Order is available at https://is.gd/04hAs8 from Leagle.com. Scott McCorkendale, Plaintiff, pro se MASSACHUSETTS: Settlement w/ Prisoners Prompts New HepC Protocol ---------------------------------------------------------------- Danny McDonald, writing for Boston Globe, reports that a federal judge has approved a settlement between state prisoners who have Hepatitis C and the state's Department of Correction that overhauls the agency's protocol for identifying and treating inmates with the disease. Under the terms of the settlement, new DOC prisoners will be offered Hepatitis C tests, and a new process for evaluating Hepatitis C patients "will ensure a timely assessment of the severity of their illness," according to a statement from the attorneys representing the prisoners. A class-action lawsuit was filed on behalf of more than 1,000 prisoners with chronic Hepatitis C in 2015. The introduction of new "direct acting antiviral medications," known as DAAs, to the market in 2013 prompted Prisoners' Legal Services and the Massachusetts Chapter of the National Lawyers Guild to file the suit, arguing that denial of the new medication constituted cruel and unusual punishment, said Joel Thompson,Esq. an attorney representing the plaintiffs. "That was the whole claim," said Thompson during a phone interview on June 29 night. Jason Dobson, a spokesman for the DOC, addressed the settlement in a June 30 e-mail. "The DOC worked closely with plaintiffs' counsel to better address Hepatitis C in our inmate population through the use of direct acting anti-viral medications," said Dobson. The DAAs, according to a statement from the attorneys representing the plaintiffs, have a high cure rate. "It works for almost everyone," said Thompson. When the suit was filed, though, only three prisoners had been treated with those medications out of more than 1,800 who had Hepatitis C, according to their lawyers. A federal judge in Boston approved the settlement on June 29. According to the terms, by September 2019, the DOC will treat 280 prisoners with the most advanced disease with the DAAs. After September 2019, the agency will treat prisoners with moderate or advanced Hepatitis C on a new timeline, which will range from three months to 12 months, said Thompson. The DOC began implementation of the new protocol in March, according to the agency. Under the settlement, the DOC's new policy will not allow for prisoners to be denied treatment because of imminent release or alleged misbehavior. A third-party monitor will ensure new Hepatitis C treatment policy is being followed for the next two and a half years, according to the statement of the attorneys representing the prisoners. Those attorneys said they would also monitor the DOC's compliance, through reports and communication with prisoners.[GN] MATTRESS FIRM: State's Highest Court Asked to Weigh in on Case -------------------------------------------------------------- Greg Ryan, writing for Boston Business Journal, reports that the state's highest court has been asked to wade into a recent wave of lawsuits in Massachusetts accusing businesses of failing to pay overtime to employees who are paid entirely on a commission basis. The Supreme Judicial Court's decision will have implications for The Herb Chambers Cos., Mattress Firm and other businesses in Massachusetts that are facing class action lawsuits from sales representatives. Companies have been slapped with the suits following a change in Massachusetts employment regulations in January 2015, during the final days of Gov. Deval Patrick's administration. According to the rule change, payments made for work done on "an hourly, piece work, salary or any other basis" should not offset any overtime pay owed to an employee. The plaintiffs say that commission work falls under the "any other basis" language, but businesses have disputed that interpretation. They have also argued that a separate state statute holds that workers who rely exclusively on commissions are not owed separate overtime pay, and that workers' commissions cover their overtime. In early June, a federal judge in Boston asked for the SJC's opinion on the issue. U.S. District Judge Richard Stearns is overseeing a class action accusing Mattress Firm of skimping on overtime pay. If a federal judge believes the SJC has yet to rule on an issue, he or she can ask the court to take a stance, though such a request is relatively rare. The SJC's decision will apply to not just the Mattress Firm case, but all similar cases in Massachusetts. Briefs in the case are due July 30, though there is no clear timetable for a ruling. Many of the cases have targeted auto dealers such as Prime Motor Group and Colonial Automotive Group, though other industries with salespeople who work on commission have also faced lawsuits. The state's high court has been tasked with deciding whether employees paid on a 100 percent commission basis should receive wages beyond their commissions if they work more than 40 hours in a given week. The federal judge has also asked the SJC to rule whether employees should have been paid time-and-a-half for working Sundays. (Time-and-a-half pay on Sundays will be phased out under a bill signed by Gov. Charlie Baker, but the lawsuits concern work performed before that law takes effect.) Some of the best-known labor law firms in Boston are representing workers in the cases, including Fair Work PC, the Law Office of Nicholas F. Ortiz PC and The Employee Rights Group LLC. Fair Work's Brook Lane, who is representing workers suing a host of car dealerships, said that overtime pay helps sales representatives make up for slow weeks during the winter, when commissions can be hard to come by. "You spend a lot of weeks during the winter just shoveling the lot for a draw. You're not selling cars," Lane said. Attorneys for some of the businesses facing the lawsuits declined to comment because the litigation is ongoing. [GN] MCDONALD'S CORP: Seeks Dismissal of Quarter Pounder Class Action ---------------------------------------------------------------- Carolina Bolado, writing for Law360, reports that McDonald's Corp. asked a Florida federal court on June 29 to dismiss a putative class suit complaining that its restaurants don't reduce the price of Quarter Pounders when customers ask for them without cheese, arguing that the allegations are "nonsense" and run counter to common sense. The fast food giant said the suit, filed in May by lead plaintiffs Cynthia Kissner and Leonard Werner, is based on "fundamentally mistaken assumptions of fact and law." The case is Kissner et al v. McDonald's Corporation, Case No. 0:18-cv-61026 (S.D. Fla.). The case is assigned to Judge William P. Dimitrouleas. The case was filed May 8, 2018. [GN] MDL 2029: Bid to Intervene in DVD Rental Antitrust Suit Denied -------------------------------------------------------------- In the case, IN RE ONLINE DVD RENTAL ANTITRUST LITIGATION, Case No. 09-md-02029-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California denied as moot Theodore Frank's motion to intervene and denied his motion for disclosure. Frank's motions concern an antitrust action filed in 2009 in which the Plaintiff class alleged that Netflix and Wal-Mart violated antitrust laws by entering into an illegal agreement in the online DVD rental market. On July 1, 2011, the Plaintiff class and Wal-Mart entered into a settlement agreement that allowed class members to choose between a Wal-Mart gift card with no expiration date or cash (of equal amount). He Frank now seeks to intervene in the action in order to request that the court order Wal-Mart to compile and disclose statistics about how many class members have used their gift cards. Frank is the founder and director of the Competitive Enterprise Institute's Center for Class Action Fairness, which litigates against what it sees as unfair class-action procedures and settlements. He is also a member of the settling class, and on Feb. 14, 2012, he objected to the settlement. Frank argued then that the settlement was a coupon settlement subject to the heightened judicial scrutiny and fee limitations of the Class Action Fairness Act and that the attorneys' fees were based on an inflated settlement fund that did not consider the number of e- gift cards redeemed. On March 29, 2012, the Court approved the settlement, and on Feb. 27, 2015, the Ninth Circuit affirmed the Court's approval of the settlement and attorneys' fee award as fair, reasonable, and adequate. Frank states that on Nov. 5, 2015, all e-gift cards were issued to the class members by email. In addition, the settlement administrator was unable to distribute 76,008 e-gift cards with a face value of $936,418.56. On Aug. 31, 2016, the Court ordered a second round of distribution of e-gift cards of $3.62 each to account for most of the undistributed funds. That order was later modified to require gift cards of $3.66 each to issue to fewer class members, because fewer class members had valid email addresses than originally anticipated. Any remaining amounts available after that distribution were to be distributed to two cy pres recipients, the Corporation For Public Broadcasting and the International Center for Law and Economics. On Dec. 14, 2017, Frank requested the current e-gift card redemption rate from Wal-Mart. Wal-Mart declined to provide the requested information, maintaining that it would be meaningless and incomplete, and stated that Wal-Mart has never itself inquired into the redemption rate. The parties met and conferred, and Wal-Mart refused to provide Frank with the information he seeks. Frank now moves for leave to intervene and moves the Court to require Wal-Mart to compile and disclose the redemption rate for the Wal-Mart e-gift cards, i.e., how many, and what percentage, of the e-gift cards distributed to class members under the settlement agreement have been used by class members, and whether Wal-Mart has realized any income from unredeemed e-gift cards. Judge Hamilton finds that Frank is a member of the Plaintiff class. As such, the Judge assumes without deciding that Frank may bring his substantive motion without first intervening in the action. Frank's motion to intervene is therefore denied as moot. Turning to Frank's motion for disclosure, the Judge finds that Frank does not have standing to bring his motion for disclosure because he has not suffered injury in fact, as he has not identified an invasion of any legally protected interest that is concrete and particularized. As such, Frank's motion for disclosure is denied. Although he finds that Frank does not have standing to bring his motion for disclosure and it must be denied for that reason, the Judge rules in the alternative that, if Frank does have standing to bring the motion, it is denied on the merits. Judge Hamilton concludes that Frank seeks an order from the Court without stating either an obligation Wal-Mart has failed to meet or a legally protected interest being denied to Frank. Because Frank must meet standing requirements to bring his motion, and because he fails to allege an invasion of a legally protected interest, Frank has failed to allege the standing necessary to bring this motion. Therefore, Frank's motion for disclosure is denied. In the alternative, if Frank has standing to bring his motion for disclosure, the motion is denied on the merits. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/SfIZFE from Leagle.com. Gary Bunker, John Haley, Eric Roslansky & Kevin Simpson, Plaintiffs, represented by Robert G. Abrams -- rabrams@bakerlaw.com -- Baker & Hostetler LLP, Eric David Freed - - efreed@cozen.com -- Complex Litigation Group, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan -- mmclellan@finkelsteinthompson.com -- Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen -- sschalman-bergen@bm.net -- Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross -- terry@gba-law.com -- Gross & Belsky P.C. & Timothy D. Battin -- tbattin@straus-boies.com -- Straus & Boies LLP. Andrea Resnick, Plaintiff, represented by Robert G. Abrams, Baker & Hostetler LLP, Eric David Freed, Complex Litigation Group, Gilbert S. Keteltas, Baker & Hostetler, pro hac vice, Gregory L. Baker -- gbaker@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Joseph Mario Patane, Trump, Alioto, Trump & Prescott, LLP, Lauren Clare Capurro, Trump, Alioto, Trump & Prescott, LLP, Mario Nunzio Alioto, Trump Alioto Trump & Prescott LLP, Mark Punzalan, Chan Punzalan LLP, Matthew W. Ruan -- mruan@cohenmilstein.com -- Berman DeValerio, Melissa Conwell Shapiro -- mshapiro@saveri.com -- Saveri & Saveri, Inc., Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross -- terry@gba-law.com -- Gross & Belsky P.C., Timothy D. Battin, Straus & Boies LLP, Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco & William G. Caldes - - bcaldes@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C. Katherine M. Anthony & Paul D. Gottfried, Plaintiffs, represented by Robert G. Abrams, Baker & Hostetler LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman- Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP & Terry Gross, Gross & Belsky P.C. Nicole Johnson, Plaintiff, represented by Eugene A. Spector -- espector@srkattorneys.com -- Spector Roseman & Kodroff, PC, Garrett D. Blanchfield, Jr. -- g.blanchfield@rwblawfirm.com -- Reinhardt Wendorf & Blanchfield, Jay S. Cohen, Spector, Roseman Kodroff & Willis, P.C., Jeffrey J. Corrigan -- jcorrigan@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., Jonathan Marc Jagher -- jjagher@srkattorneys.com -- SPECTOR ROSEMAN & KODROFF, P.C., Robert G. Abrams, Baker & Hostetler LLP, William G. Caldes, SPECTOR ROSEMAN & KODROFF, P.C., Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman- Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Jonathan Groce & Susan Horowitz, Plaintiffs, represented by Bryan L. Clobes -- bclobes@caffertyclobes.com -- Cafferty Clobes Meriwether & Sprengel LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Armond Faris & Melanie Polk-Stamps, Plaintiffs, represented by Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Tobias L. Millrood, Plaintiff, represented by Jeffrey B. Gittleman , Barrack Rodos & Bacine, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C., Timothy D. Battin, Straus & Boies LLP & Jeff D Friedman, Hagens Berman Sobol Shapiro LLP. Stan Magee, Plaintiff, represented by Mark A. Griffin -- mgriffin@KellerRohrback.com -- Keller Rohback LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman- Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Christopher P. Schmitz, Plaintiff, represented by Kendall S. Zylstra, Faruqi and Faruqi, LLP, pro hac vice, Peter Russell Kohn -- pkohn@faruqilaw.com -- Faruqi and Faruqi LLP, Richard D. Schwartz, Faruqi & Faruqi, LLP, pro hac vice, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman- Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Liza Sivek, Plaintiff, represented by Peter Russell Kohn, Faruqi and Faruqi LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Suzanne Slobodin, Linda Landels, Antonia Landels, Melanie Miscioscia & James Chatelain, Plaintiffs, represented by Robert C. Schubert -- rschubert@sjk.law -- Schubert Jonckheer & Kolbe LLP, Eric David Freed, Complex Litigation Group, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Mark Punzalan, Chan Punzalan LLP, Michael Glenn McLellan, Finkelstein Thompson LLP, Sarah Rebecca Schalman-Bergen, Berger and Montague, P.C., Stephen E. Connolly, Faruqi & Faruqi, LLP, Terry Gross, Gross & Belsky P.C. & Timothy D. Battin, Straus & Boies LLP. Wal-Mart Stores, Inc. & Walmart.com USA LLC, Defendants, represented by Genevieve Vose Wallace -- gwallace@susmangodfrey.com -- Susman Godfrey LLP, pro hac vice, Kathryn Parsons Hoek -- khoek@susmangodfrey.com -- Susman Godfrey LLP, Marc M. Seltzer -- mseltzer@SusmanGodfrey.com -- Susman Godfrey LLP, Neal Stuart Manne -- nmanne@SusmanGodfrey.com -- Susman Godfrey LLP, Richard Wolf Hess -- rhess@SusmanGodfrey.com -- Susman Godfrey LLP, pro hac vice, Stephen Edward Morrissey -- smorrissey@SusmanGodfrey.com -- Susman Godfrey L.L.P., Ellinor R. Coder, Arnold & Porter LLP, Lawrence C. DiNardo -- lcdinardo@jonesday.com -- JONES, DAY, REAVIS 7 POGUE, pro hac vice, Paula Wilson Render, Bell, Boyd & Lloyd LLC & Peter Nels Larson, Jones Day. Yahoo! Inc., Interested Party, represented by Christopher Theodore Varas -- cvaras@kilpatricktownsend.com -- Keats McFarland & Wilson LLP. Stephen C. Griffis & Jill Bishop, Objectors, represented by Steve A. Miller -- sampc01@gmail.com -- Steve A. Miller, P.C. Theodore H Frank, Objector, pro se. Theodore H Frank, Objector, represented by Daniel Greenberg -- dan@greenberglawgroup.com -- Greenberg Legal Services. Maria Cope, Individual, Objector, represented by Joseph Darrell Palmer -- darrell.palmer@gmail.com. Tracey Klinge Cox, Objector, represented by Gary Sibley . Edmund F. Bandas, Objector, pro se. Blockbuster Inc., Miscellaneous, represented by Gerald Edward Hawxhurst -- jerry@cronehawxhurst.com -- Crone Hawxhurst LLP. MDL 2353: Court Won't Review Class Certification Denial ------------------------------------------------------- The United States District Court for the District of New Jersey denied Plaintiffs' Motion for Reconsideration in the case captioned IN RE: TROPICANA ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION, MDL 2353. This Document Relates To: ALL CASES, Civ. No. 2:11-07382 (D.N.J.). This matter comes before the Court on the Plaintiffs' motion for reconsideration of the Court's January 2018 opinion and order denying class certification. The Plaintiffs bring this class action against Defendant Tropicana Products, Inc. (Defendant), alleging numerous violations of common law and state consumer protection laws, in connection with the Defendant's sale of orange juice. The Plaintiffs move under the clear error of law or manifest injustice rationale. The Court briefly addresses each of the Plaintiffs' arguments, but ultimately finds that the Plaintiffs do not raise any clear errors of law that warrant reconsideration. The Plaintiffs exhaustively alleged that TPP contains added flavoring, which violates the standard of identity for pasteurized orange juice, and the Defendant, therefore, misbranded TPP and illegally sold it. Clearly, whether TPP conforms to the FDA's standard of identity for pasteurized orange juice lies at the heart of the Plaintiffs' theory of liability as articulated by the Plaintiffs' own words. Contrary to the Plaintiffs' unsupported claims, the Court never focused on whether TPP was heat treated, whatever that means. Instead, the Court focused on the Plaintiffs' own submission and the evidence before it. The Court, therefore, finds no cause for reconsideration as to whether the Class Opinion conformed to the Court's previous findings or whether the Court misconstrued the Plaintiffs' theory of liability. The Plaintiffs next claim that the Court implicitly afforded more weight to the Defendant's expert opinions over the Plaintiffs' expert opinions despite Plaintiffs' Daubert challenges. The Court also did not overlook evidence of class-wide injury. To the contrary, the Court carefully considered every piece of evidence put before it by the parties. The fact that the Court did not directly reference every piece of evidence that the Plaintiffs deem relevant does not mean that the Court did not consider it. The Court, therefore, finds no cause for reconsideration because it overlooked evidence or gave undue weight to the Defendant's experts. The Plaintiffs submit that the Court should have certified California and New York sub-classes of individuals who purchased TPP at Members Only Club stores as an alternative to the Plaintiffs' proposed class. The Plaintiffs did not ask the Court to consider such an alternative in their original motion and cannot do so now on reconsideration. Motions for reconsideration "are not an opportunity to argue what could have been, but was not, argued in the original set of moving and responsive papers." Accordingly, the Court finds that the Plaintiffs do not raise any clear legal or factual errors or issues of manifest injustice that warrant reconsideration. A full-text copy of the District Court's May 24, 2018 Opinion is available at https://tinyurl.com/y9gk7arq from Leagle.com. MICHAEL MARTINUCCI & ANGELENA LEWIS, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by ANTONIO VOZZOLO :- avozzolo@vozzolo.com -- VOZZOLO LLC, DONALD A. ECKLUND, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C., LINDSEY H. TAYLOR, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, YITZCHAK KOPEL, BURSOR & FISHER PA & JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. Bernadette Salerno, Aleksander Simic, Yxia Olivares & Dezzi Rae Marshall, Plaintiffs, represented by DONALD A. ECKLUND, CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C., YITZCHAK KOPEL, BURSOR & FISHER PA & JAMES E. CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. John Albert Veal, Jr, Plaintiff, represented by ANDREW S. HERRING, COUNSEL NOT ADMITTED TO USDC-NJ BAR & YITZCHAK KOPEL -- ykopel@bursor.com -- BURSOR & FISHER PA. TROPICANA PRODUCTS, INC., a division of PepsiCo, Inc.,, Defendant, represented by LIZA M. WALSH -- lwalsh@walsh.law -- WALSH PIZZI O'REILLY FALANGA LLP, CHRISTINE INTROMASSO GANNON -- cgannon@walsh.law -- WALSH PIZZI O'REILLY FALANGA LLP, JOSEPH L. LINARES -- jlinares@walsh.law -- WALSH PIZZI O'REILLY FALANGA LLP &LUCAS CODY TOWNSEND -- ltownsend@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP. PEPSICO, INC., Defendant, represented by LIZA M. WALSH, WALSH PIZZI O'REILLY FALANGA LLP. MEDCARE INVESTMENT: "Collier" Wage & Hour Suit Moved to E.D. La. ---------------------------------------------------------------- The United States District Court for the Middle District of Tennessee, Nashville Division, granted Defendants' Motion to Transfer Venue in the case captioned COLLENE COLLIER, KAREN GROCE and BARRY KUSNICK, on behalf of themselves and all others similarly situated, Plaintiffs, v. MEDCARE INVESTMENT CORPORATION d/b/a MEDCARE INVESTMENT FUNDS, CARDIOVASCULAR CARE GROUP, INC., and CCG OF LOUISIANA, LLC, Defendants, Case No. 3:18-cv-00331 (M.D. Tenn.) to the United States District Court for the Eastern District of Louisiana. Plaintiffs Collene Collier, Karen Groce, and Barry Kusnick, represented by local counsel and by attorneys Jack Raisner and Rene S. Roupinian of the New York firm of Outten & Golden LLP, filed their Class Action Complaint in this court on April 2, 2018, asserting claims for relief under the Worker Adjustment and Retraining Notification (WARN) Act, against MedCare and CCG, the parent entities of the Louisiana Medical Center and Heart Hospital, LLC, a/k/a Louisiana Heart Hospital, LLC (LHH) and LMCHH PCP, LLC (LMCHH) that formerly employed the plaintiffs in Lacombe, Louisiana. The plaintiffs vigorously dispute that the Section 1404(a) factors weigh in favor of transfer and further argue that application of the first-to-file doctrine in this case would be inequitable. The plaintiffs object that the defendants mischaracterize the record and have introduced evidence that was not incorporated into their original motion documents. The rule provides that when actions involving nearly identical parties and issues have been filed in two different district courts, the court in which the first suit was filed should generally proceed to judgment. The Sixth Circuit has instructed that the dates to compare for chronology purposes of the first-to-file rule are when the relevant complaints are filed. On January 30, 2017, the two entities that make up the hospital, LMCHH and LHH (Debtors) commenced voluntary cases for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. These cases were consolidated for joint administration on February 3, 2017 and transferred to the United States Bankruptcy Court for the Eastern District of Louisiana (Bankruptcy Court") on February 14, 2017. On February 5, 2017, plaintiffs Barbara Kusnick and Rose Delaney (the "Kusnick plaintiffs"), represented by Outten & Golden, on their own behalf and on behalf of all other similarly situated former employees of the Debtors, filed an adversary proceeding against the Debtors in the Bankruptcy Court (Kusnick Adversary Proceeding). Kusnick v. LMCHH PCP LLC, Adv. Pro. No. 2:17-ap- 01021 (Bankr. E.D. La. Feb. 15, 2017) (Class Action Adv. Pro. Compl. for Violation of WARN ACT 29 U.S.C. Section 2101) Just days later, the Kusnick plaintiffs filed an Amended Class Action Adversary Proceeding Complaint also naming MedCare, CCG, Inc., and CCG, LLC, the defendants in this case, as defendants. It is the Kusnick Adversary Proceeding that constitutes the first-filed action whose parties and issues are to be compared to those of the Tennessee case for purposes of the first-to-file rule. In that case, the Kusnick plaintiffs assert WARN Act claims under a single-employer theory, as well as state law claims for breach of contract for severance pay and unpaid wages, including accrued holiday pay, vacation pay and other benefits, and seeking allowance of all their claims as first priority administrative expenses or, alternatively, wage priority status. To be clear, the Kusnick plaintiffs sought recovery on behalf of a class for WARN Act liability from the Debtors, CCG, and MedCare, and severance and paid time-off liability from the Debtors alone. On February 24, 2017, another set of former employees purporting to bring claims on their own behalf and on behalf of a putative class of similarly situated former employees of the Debtors, represented by other counsel, filed an adversary proceeding likewise asserting WARN Act and state law claims for severance pay and paid time off/paid days off (PTO/PDO) and seeking priority status. King v. LMCHH PCP, LLC, Adv. Pro. No. 2:17-ap- 01024 (Bankr. E.D. La. Feb. 27, 2017) (King Adversary Proceeding). The court must consider the similarity of the parties involved. The first-to-file rule applies when the parties in the two actions 'substantially overlap,' even if they are not perfectly identical. The named plaintiffs in the Kusnick Adversary Proceeding are not plaintiffs in this action, but the named plaintiffs in this case and all the putative class members are also plaintiffs in the Kusnick Adversary Proceeding, having filed proofs of claim in that action seeking recovery against the Debtors. The Bankruptcy Court consolidated the Omnibus Objection to the Opt-Out Employees' proofs of claim with the Kusnick Adversary Proceeding for all purposes. While the putative class members are not parties to this case merely by virtue of being within the putative class for purposes of identity of the parties when applying the first-to-file rule, courts have looked at whether there is substantial overlap with the putative class even though the class has not yet been certified. Thus, it is clear that there is substantial overlap between the plaintiffs in the two cases, even if the sets are not identical. This factor too weighs in favor of transfer. The plaintiffs also argue that the first-to-file rule only applies between courts of equal rank, that a bankruptcy court is not equal in rank to a district court, and that any ruling by the bankruptcy court will be subject to review by a district court. In fact, as the defendants point out, precedent exists for transfer from a district court to a bankruptcy court. The plaintiffs point out that class certification was denied in Louisiana and that the Opt-Out Employees affirmatively chose to bring their WARN Act claims against MedCare and CCG here rather than to intervene to bring them in Louisiana. The concerns raised by the plaintiffs do not weigh strongly against transfer. Generally speaking, courts consider inequitable actions by the parties in the first-filed action to determine whether transfer should be denied, even if the relevant factors are otherwise met. Other than the defendants' refusal to stipulate to class certification in the Louisiana case, which was certainly within their legal right, the plaintiffs here point to no inequitable action on the defendants' part -- or that of the Kusnick plaintiffs -- that would justify not transferring. Rather, the concerns the plaintiffs raise are all matters that the plaintiffs knew might pose a risk when they chose not to intervene in the Kusnick Adversary Proceeding and instead sought to bring a class action in this forum. In short, the relevant factors all weigh in favor of transfer under the first-to-file rule, and the equities do not militate against transfer. The court finds that judicial consistency, economy, and comity support the transfer. The court will grant the defendants' motion to transfer to the United States District Court for the Eastern District of Louisiana. A full-text copy of the District Court's May 24, 2018 Memorandum is available at https://tinyurl.com/ya6njor6 from Leagle.com. Collene Collier, on behalf of herself and all others similarly situated, Karen Groce, on behalf of herself and all others similarly situated & Barry Kusnick, on behalf of himself and all others similarly situated, Plaintiffs, represented by Christopher L. Williams -- Chris@williamslitigation.com -- Williams Litigation, LLC, David W. Garrison -- dgarrison@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC, Jack A. Raisner, Outten & Golden, LLP, Rene S. Roupinian, Outten & Golden, LLP, 3 Park Avenue, 29th Floor. New York, New York 10016 & Seth Marcus Hyatt -- shyatt@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC. MedCare Investment Corporation, doing business as MedCare Investment Funds, Cardiovascular Care Group, Inc. & CCG of Louisiana, LLC, Defendants, represented by Samuel P. Funk -- sfunk@simsfunk.com -- Sims Funk, PLC, Brett P. Furr, Taylor, Porter, Brooks & Phillips, LLP, Jonathan A. Moore, Taylor, Porter, Brooks & Phillips LLP, Michael A. Crawford, Taylor, Porter, Brooks & Phillips, LLP,Michael R. O'Neill, Sims Funk, PLC & Thomas R. Peak, Taylor, Porter, Brooks & Phillips LLP, 450 Laurel St. 8th Floor. Baton Rouge LA, 70801-1700 MERICO FINANCIAL: 4th Cir. Remands "Hancock" to Allow Amendment --------------------------------------------------------------- In the case, WILLIAM T. HANCOCK, SR., Plaintiff-Appellant, v. AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY; INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA; AMERICO LIFE, INC., Defendants-Appellees, Case No. 17-1976 (4th Cir.), the U.S. Court of Appeals for the Fourth Circuit dismissed Hancock's appeal from the district court's order dismissing his putative class action complaint without prejudice, and remanded the case to the district court with instructions to allow Hancock to amend his complaint. Hancock brought breach of contract, fraud, state RICO, and unfair and deceptive trade practices claims against the Defendants, arising out of a life insurance policy Hancock purchased in 1985. The district court dismissed Hancock's complaint without prejudice, specifically stating that several of his claims failed to plead sufficient facts, including his breach of contract claim for excessive insurance charges, breach of the implied covenant of good faith and fair dealing, fraud, and unfair and deceptive trade practices. Hancock appeals. While the court added that the Plaintiff's tort allegations also fail because they are indistinguishable from his breach of contract action, the Appellate Court sees no reason why an amendment could not cure this defect. As such, the district court's order is not a final order appealable under Section 1291, and the Court lacks jurisdiction over the appeal. It therefore dismissed the appeal and remanded the case to the district court with instructions to allow Hancock to amend his complaint. The Appellate Court dispensed with oral argument because the facts and legal contentions are adequately presented in the materials before it and argument would not aid the decisional process. A full-text copy of the Court's May 25, 2018 Unpublished Opinion is available at https://is.gd/JRIkas from Leagle.com. John Alan Jones, H. Forest Horne, Jr., Karl J. Amelchenko -- email@m-j.com -- MARTIN & JONES, PLLC, Raleigh, North Carolina, for Appellant. Debbie W. Harden -- debbie.harden@wbd-us.com -- Jackson R. Price -- jackson.price@wbd-us.com -- WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Charlotte, North Carolina; Roger B. Cowie -- rcowie@lockelord.com -- Carl C. Scherz -- cscherz@lockelord.com - - Taylor F. Brinkman -- tbrinkman@lockelord.com -- LOCKE LORD LLP, Dallas, Texas, for Appellee. MONSANTO CO: Settlement in "Rawa" Suit Has Final Approval --------------------------------------------------------- In the case, JOSHUA RAWA, ELISABETH MARTIN, ROBERT RAVENCAMP, AMY WARD, CYNTHIA DAVIES, CHRISTOPHER ABBOTT, OWEN OLSON, JEANNIE A. GILCHRIST, ZACHARY SHOLAR, MATTHEW MYERS, JOHN W. BEARD, JR., and MICHAEL OVERSTREET on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:17CV02300 AGF (E.D. Mo.), Judge Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri granted the Plaintiff's Motion for Final Approval of the Class Action Settlement; and granted in part the Plaintiff's Motion for Attorney Fees, Costs, and Service Awards. In Rawa v Monsanto Co., 4:17CV01252 AGF, filed on April 5, 2017, the Plaintiffs claimed that Monsanto engaged in misleading practices by overstating on several of its Roundup Concentrate products' labels, the number of gallons of spray solution the concentrates would make, in violation of the Missouri Merchandising Practices Act ("MMPA"). The Plaintiffs, who were purchasers of the products, sought damages and asserted jurisdiction under the Class Action Fairness Act. On Oct. 13, 2016, approximately six months before the case was filed here, another putative class action challenging the same practices as to the same products, Martin v. Monsanto, 4:17CV2300 AGF, was filed in the Central District of California. Martin was brought under the Magnuson Moss Warranty Act ("MMWA"), on behalf of a nationwide class; and under various California consumer protection laws, on behalf of a California subclass. The district court in California denied Monsanto's motion to dismiss the state law claims for failure to state a claim, and on March 24, 2017, certified a statewide California class with respect to the state law claims. The Martin plaintiffs did not seek certification of a class with respect to their MMWA claim. They initially estimated that damages for the California class were $22 million, but then corrected the amount to approximately $15.5 million, based on information from Monsanto that a certain product that was included in the damages estimate did not have an offending label. The plaintiffs' counsel in Martin and Rawa were the same. On Aug. 22, 2017, in light of a tentative nationwide settlement, the parties in Martin jointly requested that Martin be transferred to the Court, and on August 23, the California district court granted the motion. Upon transfer to the Court, Martin was provisionally consolidated with Rawa and on Sept. 22, 2017, an Amended Consolidated Class Action Complaint was filed. Meanwhile, according to the Plaintiffs' counsel's declaration dated Oct. 4, 2017, nine related actions were filed in other states. After the nationwide settlement agreement was reached, the Plaintiff's counsel reached out to each of the plaintiffs in the nine related actions. All agreed that the nationwide settlement was strong, and worth supporting. Thus, each of these plaintiffs was referred to the Plaintiffs' counsel, to be added to the consolidated complaint, and their original actions were dismissed. The consolidated complaint proposes the nationwide class of all persons in the United States, who, during the Class Period, purchased in the United States, for personal or household use certain Roundup Concentrate products whose neck or shoulder label stated that the product makes up to a specified number of gallons. The consolidated complaint alleges that the class members would have paid from 40% to 50% less for the concentrate products had they paid the market price for the number of gallons of spray solution actually received. The 12 representative Plaintiffs are from ten states: Missouri, California, Illinois, Kentucky, Colorado, North Carolina, Indiana, Georgia, Tennessee, and Pennsylvania. They include the Plaintiffs in Rawa, Martin, and the other related cases. Two causes of action are asserted in the consolidated complaint - - one under the MMPA and one under the MMWA. On Oct. 4, 2017, the Plaintiffs, with Monsanto's consent, moved for preliminary approval of a proposed nationwide class settlement, pursuant to a Settlement Agreement signed that day, providing for a common fund of $21.5 million. By Order dated Dec. 6, 2017, the Court granted the motion. The Court conditionally certified the proposed class for settlement purposes only. It also approved the parties' selection of a Claims Administrator, approved the form and content of the proposed Class Notice and the proposed method of its dissemination, and set a schedule for the notice period, the opt out and objection periods, and a final approval hearing. The proposed cy pres recipients were disclosed on the settlement website. By declaration dated March 23, 2018, the Claims Administrator stated that it had received approximately 94,000 claims. The Claims Administrator excluded any claims for over 18 bottles for Super Concentrate 53.7 oz., over 16 bottles for Super Concentrate 64 oz., and over 14 bottles for Super Concentrate 128 oz. According to the Plaintiffs' counsel's April 14, 2018 sworn declaration, as of April 13, 2018, this resulted in 70,628 validated claims, valued at $10,774,061, which represents a claims rate of approximately 13%. As of March 31, 2018, notice and administration costs were $630,944. By separate motion, the Plaintiffs seek attorney's fees of one-third of the common fund, which would result in fees of $7,166,666; notice and administration costs which would be approximately the amount noted above; litigation expenses of approximately $97,614; and service awards to the representative Plaintiffs totaling $42,500, including a $10,000 award for the representative Plaintiff in Martin. If the Court were to award the full amount of attorney's fees, litigation expenses, notice and administration costs, and service awards that the Plaintiffs have requested, approximately (depending on final amounts of costs and expenses) $2,788,218 of the common fund would remain. The parties have suggested that this remainder be distributed cy pres to four recipients: 30% to the National Consumer Law Center ("NCLC"); 30% to the Better Business Bureau's National Advertising Division; 20% to Gateway Greening (a nonprofit that educates and empowers people to strengthen their communities through gardening and urban agriculture in the St. Louis, Missouri, area); and 20% to Kids Gardening (a nonprofit that seeks to improve nutritional attitudes and educational outcomes through garden-based learning, nationally). This suggestion was posted on the settlement website. Monsanto consents to the motion for final approval of the settlement in all respects except attorney's fees. It agrees that the class counsel is entitled to reasonable attorney's fees from the common fund, but argues for an award of no more than the "standard" 25% of the class fund, which would amount to $5,375,000 in attorney's fees. Two individuals have filed objections to the Settlement Agreement: James Migliaccio and Patrick Sweeney. Migliaccio, a member of the class from California, argues that the nationwide Settlement Class should not be certified because the approximately 51,000 California class members are positioned for a greater recovery than class members from other states, because, he contends, California has stronger consumer protection laws. He also objects to payment of more than $7 million in attorney's fees for less than a year's work. Prior to the hearing, the Court required Plaintiffs' counsel to submit detailed billing statements and hourly rates. The counsel submitted unredacted billing records for in camera review, as well as redacted records for the parties. The records show a lodestar amount of $1,136,390. The consumer class action came before the Court for a hearing on April 17, 2918, on the Plaintiffs' motion for approval of a nationwide class settlement, and on the Plaintiffs' separate motion for attorney's fees, litigation costs, and service awards for class representatives. Judge Fleissig concludes that the settlement is fair, reasonable, and adequate. And Upon careful consideration of all relevant factors, the parties' arguments, the Plaintiff's counsel's billing records, and the case law, specifically in the Eighth Circuit, on attorney's fees in class action settlements, he concludes that a fee award of 28% of the common fund is just and reasonable in the case. This results in an award of $6,020,000. The Judge also finds that the administration costs, litigation costs, and service awards are reasonable. Thus, in addition to attorney's fees of $6,020,000, the following amounts will be paid from the common fund: notice and administration costs of $630,944, litigation costs of $97,614, and $42,500 in service awards to the representative Plaintiffs. He recognizes that the administration and litigation costs will increase slightly, depending on remaining tasks for the Claims Administrator and the Plaintiffs' counsel. In light of these rulings, approximately $3,934,881 million will remain in the common fund. In sum, the Judge concludes that a cy pres distribution of approximately $3.9 million is reasonable. Accordingly, he will order that 50% of the funds available for cy pres distribution be paid to the National Consumer Law Center, and 50% paid to the Better Business Bureau's National Advertising Division. Finally, at the hearing, Monsanto recognized that a reserve could be established to cover any previously disallowed claims that might thereafter be allowed by the Claims Administrator based on appropriate proof of purchase. The Judge directed the parties to confer with the Claims Administrator with respect to an appropriate reserve amount, and within 14 days of the date of the Order, advise the Court of the proposed reserve amount and proposed procedure and language to notify claimants how they could substantiate disallowed claims. Once a proposal by the parties is approved by the Court, the Court will dismiss the case and enter judgment. Accordingly, Judge Fleissig granted the Plaintiff's Motion for Final Approval of the Class Action Settlement, granted in part the Plaintiff's Motion for Attorney Fees, Costs, and Service Awards; and directed the parties and the Claims Administrator to implement the Settlement Agreement in accordance with its terms and the Court's rulings. A full-text copy of the Court's May 25, 2018 Memorandum and Order is available at https://is.gd/YDu0PN from Leagle.com. Joshua Rawa, on behalf of himself and all others similarly situated, Plaintiff, represented by John Joseph Fitzgerald, IV -- jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald, PC, Kevin J. Dolley -- kevin@dolleylaw.com -- LAW OFFICES OF KEVIN J. DOLLEY, LLC, Sidney Warren Jackson, III -- sid@jacksonfosterlaw.com -- JACKSON AND FOSTER LLC, pro hac vice & Thomas A. Canova -- tom@jackfitzgeraldlaw.com -- THE LAW OFFICE OF JACK FITZGERALD, PC, pro hac vice. Elisabeth Martin, Robert Ravencamp, Amy Ward, Cynthia Davies, Christopher Abbott, Owen Olson, Jeannie A Gilchrist, Zachary Sholar, Matthew Myers, John W Beard, Jr & Michael Overstreet, Plaintiffs, represented by John Joseph Fitzgerald, IV, The Law Office of Jack Fitzgerald, PC & Kevin J. Dolley, LAW OFFICES OF KEVIN J. DOLLEY, LLC. Monsanto Company, Defendant, represented by Erik L. Hansell -- erik.hansell@huschblackwell.com -- HUSCH BLACKWELL, LLP & John J. Rosenthal - jrosenthal@winston.com - WINSTON AND STRAWN, LLP, pro hac vice. James Migliaccio, Objector, represented by Peter C. Woods -- petewoods@haar-woods.com -- HAAR AND WOODS, LLP. Patrick Sweeney, Objector, pro se. NAT'L COLLEGIATE: Points to 9th Cir. Decision on Transfer Rule -------------------------------------------------------------- Ryan Boysen, writing for Law360, reports that the NCAA is already pointing to a decision by the Seventh Circuit upholding its transfer restriction rule to argue that the Ninth Circuit should not revive a separate proposed wage-and-hour class action, saying the Seventh Circuit's decision proves its athletes are amateurs and not employees. In a June 29 letter to the Ninth Circuit, the NCAA pointed to the Seventh Circuit's decision that rejected a challenge by former Northern Illinois University punter Peter Deppe to the so-called year-in-residence rule. The case is styled Lamar Dawson v. NCAA, et al Case No. 17-15973 (9th Cir.). The case was filed May 12, 2017. [GN] NATIONSTAR MORTGAGE: Settlement in "Garcia" Has Prelim Approval --------------------------------------------------------------- In the case, JUANITA GARCIA, individually and on behalf of all others similar situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC, a Delaware limited liability company, Defendant, Case No. C15-1808 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court, W.D. Washington, Seattle, granted the Plaintiff's Motion for Preliminary Approval of Class Certification and Class Action Settlement. Based on his preliminary evaluation, the Judge finds that the Settlement Agreement meets all applicable requirements of Fed. R. Civ. P. 23 for settlement purposes only. Therefore, he granted preliminary approval of the Settlement Agreement. Pursuant to Fed. R. Civ. P. 23(b)(3), and for settlement purposes only, Judge Zilly certified the proposed "Settlement Class" consisting of: (1) all individuals in the United States who, from Nov. 17, 2014 to the date of preliminary approval of the settlement, made a payment to Nationstar on a residential mortgage debt over the phone or online that included a fee charged by Nationstar for using the phone or internet, and whose debt had not been current for 30 or more consecutive days at the time Nationstar began servicing it ("FDCPA Settlement Class"); and (2) all individuals in Washington state who, from Nov. 17, 2011 to the date of preliminary approval of the settlement made a payment to Nationstar on a residential mortgage debt over the phone or online that included a fee charged by Nationstar for using the phone or internet, and whose debt had not been current for 30 or more consecutive days at the time Nationstar began servicing it ("CPA Settlement Class"). For settlement purposes only, he approved the appointment of (i) Plaintiff Garcia as the representative of the Settlement Class; (ii) Rafey S. Balabanian of Edelson PC and D. Frank Davis of Davis & Norris, LLP as the Class Counsel; and (iii) Heffler Claims Group as the Settlement Administrator. A hearing regarding final approval of the Settlement will be held at 10:00 a.m. on Sept. 19, 2018. No later than Sept. 6, 2018, the Plaintiffs must file their papers in support of the Class Counsel's application for attorneys' fees and expenses. No later than Sept. 5, 2018, the Plaintiffs must file their papers in support of final approval of the Settlement Agreement and in response to any objections. Judge Zilly approved the Class Notice in the Settlement Agreement, including the manner and content of Direct Notice attached as Exhibits D-E to the Settlement Agreement and the creation of the Settlement Website, as more fully described in the Settlement Agreement. Any Settlement Class Member who wishes to be excluded from the Settlement Class must send a written Request for Exclusion to the Settlement Administrator no later than 45 days after the Direct Notice is transmitted, which will be no later than 90 days after the entry of the Order, or Aug. 23, 2018. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/qxzk1h from Leagle.com. Juanita Garcia, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin H. Richman -- brichman@edelson.com -- EDELSON PC, pro hac vice, D. Frank Davis -- fdavis@davisnorris.com -- DAVIS & NORRIS LLP, pro hac vice, Rafey S. Balabanian -- rbalabanian@edelson.com -- EDELSON PC, pro hac vice, Wesley W. Barnett -- wbarnett@davisnorris.com - - DAVIS & NORRIS LLP, pro hac vice & Clifford A. Cantor . Nationstar Mortgage LLC, a Delaware limited liability company, Defendant, represented by Erik Kemp -- ek@severson.com -- SEVERSON & WERSON, pro hac vice, Kalama M. Lui-Kwan -- kml@severson.com -- SEVERSON & WERSON, pro hac vice, Mary Kate Kamka -- kk@severson.com -- SEVERSON & WERSON, pro hac vice & John Alan Knox -- jknox@williamskastner.com -- WILLIAMS KASTNER & GIBBS. NEW MEXICO: Ct. Denies Pro Se Class Certification Bid in "Amaro" ---------------------------------------------------------------- The United States District Court for the District of New Mexico denied Plaintiffs' Motion for Class Certification in the case captioned PEDRO J. "PETE" AMARO, Petitioner, v. R.C. SMITH, Warden, ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents, No. 1:17-cv-00898 MCA/LF (D.N.M.). Amaro's Motion for Class Certification which seeks to certify a class of federal habeas petitioners. The Petition seeks to vacate all criminal judgments entered in New Mexico's Ninth Judicial District Court between 1979 and 2012/2013. It also appears to challenge his State Court convictions based on, inter alia, judicial misconduct, prosecutorial misconduct, and ineffective assistance of counsel. Having carefully reviewed each Motion, the Court finds that dismissal of the Sections 2254 Petition as untimely renders the requests moot. All pending motions will therefore be denied. A full-text copy of the District Court's May 24, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7hkmrbb from Leagle.com. Pedro J. Amaro, "Pete", Petitioner, pro se. NEW YORK: Court Denies Certification of "Sanchez" Class ------------------------------------------------------- The United States District Court for the Southern District of New York denied Plaintiffs' Renewed Motion for Class Certification in the case captioned WALTER NEIRA SANCHEZ, Plaintiff, v. NEW YORK KIMCHI CATERING, CORP., et al., Defendants, No. 16 Civ. 7784 (LGS) (S.D.N.Y.). Plaintiff Walter Neira Sanchez brings this action under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) against his alleged former employers, Defendants New York Kimchi Catering, Corp. (NYKCC); Gum Gang Inc. (Gum Gang). The Plaintiff previously moved for Rule 23 class certification on the NYLL claims on behalf of all non-exempt employees employed by the Defendants at New York Kimchi' located at 16 West 48th Street, in New York, on or after the date that is six (6) years before the filing of the initial Complaint. Numerosity and Superiority The Plaintiff cannot show that the class is so numerous that joinder of all members is impracticable or that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. This is not a case where putative class members with limited resources can seek redress on their small claims only through a class action. Plaintiff's Adequacy as Class Representative The Plaintiff also has not established that he is an adequate class representative of non-managerial employees at the Defendants' restaurant. The parties' dispute whether the Plaintiff ever worked for the restaurant and, therefore, even has standing to bring this case. The Defendants' argument creates a unique defense that threatens to become the focus of the litigation. The Plaintiff's only evidence of his employment is his own conclusory declaration that he worked as a delivery person for the Defendants between February 2014 and November 2014. The Plaintiff has not submitted his own pay stubs or payroll records, tax documentation or testimony from former co- workers stating that they worked together at the Defendants' restaurant; nor has he provided any details about his employment or the restaurant that would lend credibility to his claim. The Plaintiff's conclusory declaration is controverted by the Defendants' evidence. Defendant Kim's declaration states, "Based upon my own personal knowledge and an exhaustive search of the business records, Plaintiff Walter Neira Sanchez has never worked for Gum Gang, Inc. We have no employment or other records relating to him whatsoever." The Defendants have submitted four lists of employees, including other delivery persons, but not the Plaintiff. Based on this record, the Plaintiff has not sustained his burden of showing that he is an adequate representative of any class. Accordingly, the Plaintiff's renewed motion for class certification is denied with prejudice and the previously certified class is decertified. A full-text copy of the District Court's May 24, 2018 Opinion and Order is available at https://tinyurl.com/ycydh242 from Leagle.com. Walter Neira Sanchez, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff, represented by Anne Melissa Seelig, Lee Litigation Group, PLLC, Taimur Alamgir, Lee Litigation Group, PLLC & C.K. Lee, Lee Litigation Group, PLLC. New York Kimchi Catering, Corp., Gum Gang Inc. & Un Cha Kim, Defendants, represented by Kenneth Foard McCallion -- kfin@mccallionlaw.com -- McCallion & Associates, LLP & Kristian Karl Larsen -- Klarsen@larsenadvocates.com -- Larsen Advocates. Sandra Yoo, Defendant, represented by Kenneth Foard McCallion, McCallion & Associates, LLP. NEWELL BRANDS: Robbins Arroyo Files Securities Class Suit --------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on July 2 disclosed that purchasers of Newell Brands Inc. (NYSE: NWL) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between February 6, 2017 and January 24, 2018. Newell designs, manufactures, sources, and distributes consumer and commercial products worldwide. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/newell-brands-inc Newell Accused of Hiding Truth Behind Bloated Retail Inventory Levels According to the complaint, Newell failed to disclose that the company's retail channel was loaded with extremely high levels of unsold product, which made it more likely that the company would experience slower sales growth. In addition, Newell's business fundamentals were not improving as Newell officials claimed and internal discord was contributing to the adverse effect on the company's operating performance. Newell's troubles began to emerge on November 2, 2017, when the company announced that net sales declined by 7%, admitting that 2017 third quarter results were below expectations due to weak "late-quarter sales" related to retail inventory rebalancing. Then, on January 25, 2018, Newell announced that the company was considering a divestiture that would result in a 50% reduction in both Newell's customer base and its global factory and warehouse footprint. On this news, Newell's stock fell nearly 21% to close at $24.81 per share on January 25, 2018, and has yet to recover from this decline. Newell Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] NIAGARA BOTTLING: Court Narrows Claims in Mislabeling Suit ---------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania granted in part and denied in part Defendant's Motion to Dismiss the case captioned STANLEY F. FROMPOVICZ, Plaintiff, v. NIAGARA BOTTLING, LLC, ICE RIVER SPRINGS WATER CO, INC., CROSSROADS BEVERAGE GROUP AND JAMES J. LAND, JR., Defendants, Civil Action No. 18-54 (E.D. Pa.). The Plaintiff, a spring water extractor, alleges that the Defendants have violated the Lanham Act, 15 U.S.C. Section 1125(a), and Pennsylvania's unfair competition law by mislabeling their water as spring water. One of the Defendants extracts water and three of them bottle, sell, and label the extracted water as spring water. The Plaintiff, who is in the spring water business, possessed a license from the Pennsylvania Department of Environmental Protection (DEP) to operate a spring water extraction site. He alleges that the Defendants' labeling of their water as spring water has damaged his business because the labels are designed to entice purchasers to buy the Defendants' products under the false belief that their spring water is at least equal, if not superior, to Plaintiff's true spring water. The Defendants seek to dismiss the Plaintiff's complaint on the grounds that: (1) he lacks standing under Article III of the United States Constitution; and (2) because he does not have a right to sue under the Lanham Act. Defendants also contend that Plaintiff's Lanham Act claims are precluded, by the Food, Drug, and Cosmetics Act. Article III standing Turning, first to the Defendants' challenge to Article III standing: A plaintiff has Article III standing if he has (1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The Plaintiff's Complaint alleges that the Defendants' marketing and sale of their deceptively marketed 'spring water' is damaging to the reputation and goodwill of the Plaintiff, and that the Defendants' actions hindered his sales. Thus, the Plaintiff has sufficiently alleged a legally protected interest, and, thus, an injury-in-fact sufficient to confer standing. In this case, Defendant Land allegedly extracts well water and Defendants Niagara, Crossroads, and Ice River allegedly bottle such water with labels that indicate that it is spring water. Since consumers prefer spring water, it is reasonable to infer under the analytical rubric of a motion to dismiss that Defendant Land's sales siphoned sales away from the Plaintiff. In fact, the Plaintiff alleges that the misleading labels depressed his own sales by falsely equating his product with Defendant Land's. Taking these allegations as true, the Plaintiff has sufficiently alleged that his injuries are traceable to the Defendants' conduct. Right to Sue Under the Statute Whether the Plaintiff has a right to sue under the Lanham Act is an entirely different question. That question is resolved by determining whether the Plaintiff has sufficiently alleged that: (1) he comes within the zone of interest implicated by the statute; and, (2) that the Defendants' conduct proximately caused his damages. The Plaintiff's allegations that his spring water sales were depressed as a result of the Defendants' misleading labels come within the zone of interests invoked by the Lanham Act. These allegations have sufficient factual support in order to withstand a challenge under Rule 12(b)(6). Accepting those facts as true and drawing all reasonable inferences in favor of the Plaintiff, it is plausible that the Bottler Defendants would have purchased more spring water from the Plaintiff than water from Defendant Land had the labels indicated that Land's water was other than spring water. Proximate Cause Test As to the proximate cause test, the Plaintiff must demonstrate that his injuries are not too remote from the Defendants' violations of the Lanham Act. Here, the Plaintiff's alleged economic and reputational injury flows directly from the activities of Defendant Land. All parties concede that the Plaintiff was, until recently, actively sourcing, extracting, and selling spring water to bottlers. Defendant Land is in the exact same business. He is thus a direct competitor. The Plaintiff alleges that Defendant Land fraudulently and deceptively markets and sells the raw water extracted at Pine Valley Farms Springs as spring water. There is no intervening causal agent between Defendant Land's conduct the deceptive sale to bottlers and the Plaintiff's diminished sales to bottlers; both are selling what they call spring water to bottlers. Thus, the Plaintiff has alleged a viable theory of proximate harm from Defendant Land's actions. The question is more complicated when it comes to the Bottler Defendants who are not in direct competition with the Plaintiff: He sells his product to bottlers and then the bottlers sell to consumers. The question is whether this extra step in the chain of causation takes the Plaintiff's Lanham Act claim one step beyond viability. In this case, the Plaintiff's Complaint has a paucity of allegations connecting his own lost sales with the Bottler Defendants' actions. Absent such allegations, the Plaintiff's Lanham Act claim will be dismissed against the Bottler Defendants without prejudice to amend. FDCA and Lanham Act Preclusion The FDCA provides that a food shall be misbranded if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations . . . unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard. Pursuant to its rulemaking authority under the FDCA, the FDA has defined spring water explicitly. The Defendants argue that these regulations preempt the Lanham Act with respect to spring water labeling. The Supreme Court's recent decision in POM Wonderful LLC v. Coca-Cola Co. is to the contrary. 134 S.Ct. 2228 (2014). The Supreme Court clarified that the FDCA generally does not preclude Lanham Act claims based on false labeling. In that case, the plaintiff claimed that although the defendant's pomegranate juice comported with FDCA labeling requirements concerning juices, it was still misleading because the juice was only .3% pomegranate. The Court held that the FDCA and the Lanham Act complement each other with respect to labeling. While enforcement of the FDCA and the detailed prescription of its implementing regulations is largely committed to the FDA, the FDA does not have the same perspective or expertise in assessing market dynamics that day-to-day competitors possess. The Second Circuit summarized the holding of POM Wonderful succinctly: "Compliance with FDA regulation does not create a ceiling that bars still better protections against the capacity of the representations to mislead. Therefore, compliance with the FDCA does not preclude liability under the Lanham Act." The Complaint here contains no allegation that the FDA has made an affirmative judgment as to whether Land's water falls within its definition of spring water. Indeed, it specifically alleges that Land's water is not spring water. Accepting that allegation as true, the Plaintiff's Lanham Act claim is not precluded by the FDCA. A full-text copy of the District Court's May 24, 2018 Opinion is available at https://tinyurl.com/y9seplb7 from Leagle.com. STANLEY F. FROMPOVICZ, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DAVID J. STANOCH, GOLOMB & HONIK, P.C. NIAGARA BOTTLING, LLC, Defendant, represented by MATTHEW A. WHITE -- WHITEMA@BALLARDSPAHR.COM -- BALLARD SPAHR LLP, EMILIA L. MCKEE VASSALLO -- MCKEEVASSALLOE@BALLARDSPAHR.COM -- BALLARD SPAHR LLP & LESLIE E. JOHN -- JOHN@BALLARDSPAHR -- BALLARD SPAHR ANDREWS & INGERSOLL LLP. ICE RIVER SPRINGS WATER CO. INC., CROSSROADS BEVERAGE GROUP & JAMES J. LAND, JR., doing business as PINE VALLEY FARMS SPRINGS, Defendants, represented by BRETT A. DATTO -- brett.datto@weirpartners.com -- WEIR & PARTNERS LLP & LAUREN SCHWIMMER -- lschwimmer@weirpartners.com -- WEIR & PARTNERS LLP. NIGERIA: Police Faces Class Action Over SARS-Related Abuses ----------------------------------------------------------- Chidirim Ndeche and Tonye Bakare, writing for Guardian, report that James Ademuyiwa, a social media marketer, does not believe the police is a friend. After two nasty experiences with men of the Special Anti-Robbery Squad in Abeokuta and Lagos, his disposition is more than justified. The first time he was arrested for committing no crime, he was walking down a street in the Ogun State capital. Immediately tagged a Yahoo boy -- the Nigerian label for an internet fraudster -- without evidence or justification, his phone was confiscated. Without asking any questions, knowing he would be saving himself from wounds or bloody harassment, he handed them his phone. Nothing incriminating was found on it. Yet, he was told he had to pay to 'bail' himself. James' encounters with the now dreaded police squad mirror thousands of others by young Nigerians, with some ending in fatalities. "No police officer should violate the rights of even criminals," says Segun Awosanya, a convener of the #EndSARS #ReformPoliceNG Movement. "But here, we have people who break the law under the guise of upholding the law; people who take the laws into their hands under substance abuse to do whatever they want. And they believe nothing will happen." Awosanya and others like him are spearheading a nationwide campaign aimed at the abolition of the anti-robbery squad and reformation of the entire police force. The #EndSARS campaign began on social media to protest the activities of the police unit which have been accused of extortion, harassment, robbery, intimidation and extra-judicial killings. There have also been public demonstrations for and against the continued existence of the dreaded anti-crime unit of the Nigeria Police Force. To achieve its aim, the movement, which has found relevance with a band of Nigerian youths, is hoping Nigeria's parliament will act on the Police Act amendment bill before it and also institute a public hearing on the "on human rights abuses by Police/SARS in collaboration with National Human Rights Commission." "On the civil side, we are filing a class action suit of N100 billion against the Nigeria Police and also a lawsuit at [the] International Criminal Court on Terrorism on the defenseless youth of Nigeria by the Police as guaranteed by Article 15 of the ICC Statute which allows citizens to refer cases to the ICC, where the state is UNWILLING or UNABLE to take action," Awosanya says in a post on his Medium page. The vexatious issue has taken the front burner in national discourse, resulting in the big question about how SARS came to be. The origin of the special squad In the 1980s, Nigeria saw a plethora of robbery attack on homes, bank premises and on highways. Many lost their lives and property. This led to a public outcry, forcing the police to set up a special squad of policemen to answer to the menace of robbers in the country. Mr Mike Okiro, the Former Inspector- General of Police and Chairman of the Police Service Commission, in an interview with Daily Trust in December 2017, said, "the idea was that they would be in mufti and armed, simply for the very important element of surprise. They would take cover and, communicate with walkie-talkies, hit the armed robbers. They did that and the robbery attacks went down drastically and, at a point, stopped altogether." The former police boss, however, said the squad later became errant and its different formations across the country started acting in ways that negated the spirit of their creation. "I'd say the original idea of SARS has been bastardised," Okiro said. "The squad was feared before, and I mean by criminals. But by the time it spread to other states, it seemed like anyone would be carrying arms, dressed in mufti, with a T-shirt with SARS emblazoned on it. Anybody can wear such an outfit." The campaign against SARS reached its peak in late 2017, causing #EndSARS to trend for weeks on social media. The outrage expressed in the digital space, which had resonated with celebrities, quickly morphed into street protests in different parts of the country. The leadership of the Nigerian Police responded by reorganising the squad which was fast becoming a blight on its already less-than-sterling public image. But it insisted that the squad was doing what it was established to do. " Undoubtedly, the Special Anti-Robbery Squad (SARS) have been doing very well in fighting violent crimes such as armed robbery, kidnappings and cattle rustling in the country in the recent time and this has resulted in drastic reduction of incidents of the mentioned violent crimes nationwide," Nigerian police spokesman Jimoh Moshood said in a statement last December. Weighing the odds People like Awosanya and rap artist Michael Ugochukwu Stephens, popularly known as Ruggedman, think SARS has become more of a menace to the Nigerian society than a deterrent to criminals. "They are now bullies," says Ruggedman, whose younger brother was arrested by SARS unjustly. A 2016 report by Amnesty International indicates that persons detained by SARS, both men and women, "are subjected to various methods of torture and ill-treatment in order to extract information and 'confessions'. Such methods include severe beating, hanging, starvation, shooting in the legs, mock executions and threats of execution." The reason for this barefaced brutality, according to Awosanya, is not farfetched. He describes how police personnel are drafted into the anti-robbery squad as corrupt in itself. He says that the officials are made members of the squad after they have paid a certain amount of money to their superiors. Allegations of the Nigerian police being enmeshed in corruption are not unfounded. A report published by the National Bureau of Statistics (NBS) in partnership with the United Nations Office on Drugs and Crime (UNODC) shows that the Nigerian judiciary is the second most corrupt public institution in the country after the Nigerian police. Abayomi Shogunle, who heads Nigerian Police's Public Complaint Rapid Response Unit, says SARS may be a victim of unjust accusations. He tells Guardian Life that it is important for members of the public to lodge complaints with the Nigerian police through appropriate channels. Perhaps this is his way of ensuring that proper evidence is provided for accusations against the questionable actions of the unit. In fact, the police, in recent past, acted quickly against men and officers who have been found wanting of crimes. It has also intensified its anti-corruption campaign too. In a separate interview with Channels TV earlier this month, Shogunle insists that the bulk of accusations against the squad are unfounded. "Why are people not going to the courts? Because they don't have evidence or the facts they will use to pursue their cases," Shogunle says. He claims most of the complaints against SARS are localised in Lagos State because of better "access to internet facilities". "Maybe it's because more people in Lagos have more access to internet facilities than other people in Nigeria or maybe because of the high commercial activities in Lagos or maybe because most of the online media platforms are based in Lagos." But Israel Oladipupo 'Ladi Speaks' Ogunseye, whose mother was a member of SARS between 2014 and 2015, is of the belief that the narrations seen on social media are telling of what SARS has become. He is aware of the possibility of people lying outrightly or exaggerate their encounters with the SARS. He says, "most of the stories being reported on social media to have been known to be true. Only proper investigations into these matters and cases can show us which is true and which is not true." Like Ogunseye, Awosanya believes that a lot of the cases of SARS criminality mentioned on social media have [a] basis in reality. With data miners, dedicated website and professionals spread across Nigeria, the US and the UK, the credibility of the cases #EndSARS #ReformPoliceNG Movement handles are ascertained. He tells Guardian Life that his organisation verified about 350,000 cases of SARS brutality in 2017 alone. The number, in spite of the uptick in activism against police brutality, has risen to about 450,000. To end or to reform? With the #EndSARS campaign still gaining fervency, Awosanya says it is imperative for the Nigerian police to see the wholesome reorganisation and reformation of the whole force as important. One of the things the Inspector-General of Police did after the anti-SARS got to a head last year was to order an immediate reorganisation of the squad formations across the country. But a reorganisation without reformation and reorientation of the personnel may achieve little or nothing. Awosanya is pessimistic about reforming the squad. An outright proscription, he says will be deterrent enough. But Tomiwa Talabi, founder of LagosLife, UnilagGist and TheGistNG, who himself has been at the receiving end of SARS brutality says reforming the squad is better. "SWAT is an awesome benchmark for what SARS should look like," he says. Rapper Ruggedman notes that whichever option the police hierarchy chooses, the current squad must be taken off the street "because they belong there in the first place." [GN] NUCOR CORP: Racial Bias Class Action Settlement Hearing Set ----------------------------------------------------------- David Wren, writing for The Postal and Courier, reports that a federal judge in Charleston was set to hear arguments Friday, July 6, in a class-action settlement dispute involving Nucor Corp. and workers who say they suffered racial discrimination at the steelmaker's plant in Berkeley County. The workers say Charlotte-based Nucor is wrongfully trying to deduct taxes that employers typically pay from some payments under a settlement reached in February. Nucor says the $22.5 million settlement represents all of the money it's obligated to pay, and that having to pay taxes on top of that amount would violate the agreement. The issue affects workers who say they were denied promotions because they are black. The initial allegations of hostile working conditions at Nucor date to 2002, with black workers alleging in court documents that their white counterparts used racial slurs when talking to them, displayed Confederate flags, nooses and other racist symbols, and denied them promotions and other benefits because of their race. The settlement ended a nearly 15-year court battle. [GN] PACIFIC GAS: Court Won't Certify Interlocutory Appeal in "Greer" ---------------------------------------------------------------- The United States District Court for the Eastern District of California denied Defendant IBEW Local 1245 (IBEW)'s Motion to Certify Order for Interlocutory Appeal in the case captioned BECKY GREER, TIMOTHY C. BUDNIK, ROSARIO SAENZ, IAN CARTY, HALEY MARKWITH, and MARCIA GARCIA PESINA, individually and as class representatives, Plaintiffs, v. PACIFIC GAS AND ELECTRIC COMPANY, IBEW LOCAL 1245, and DOES 1 through 10, inclusive, Defendants, Case No. 1:15-cv-01066-EPG (E.D. Cal.). IBEW argues that this Court should stay the case and permit an interlocutory appeal of the Court's order requiring that the notice to purported class members include the amounts that will be paid by each defendant, IBEW, who is the class members' own Union, and PG&E, who is the class members' employer that allegedly underpaid class members' wages. Regarding whether the Court's order concerns a controlling question of law, IBEW argues that: "The Court's Order requiring Defendants to disclose in the settlement notices the specific contributions that each Defendant will make toward the settlement fund involves a controlling question of law as to which there is substantial ground for difference of opinion insofar as the Order purports to grant preliminary approval to the settlement while ordering the parties to modify substantive and material terms of their agreement without their consent and over Local 1245's previously stated objection to the modifications required by the Court, notwithstanding that the Court's authority is limited to approving or denying the settlement as a whole; and therefore, 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.'" In support of its argument, IBEW cites to case law indicating that the Court cannot modify the terms of the settlement. In Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), neither the district court nor this court have the ability to delete, modify or substitute certain provisions. The settlement must stand or fall in its entirety. It is equally clear, however, that the Court may modify the proposed Notice to the class members of the settlement terms. Rule 23(e)(1) of the Federal Rules of Civil Procedure states that the court must direct notice in a reasonable manner to all class members who would be bound by the proposal. As to the first claim, the fact that the settlement terms put on the record are silent about whether or not the allocation will be disclosed in the notice just confirms that it is not a term of the settlement agreement. As to the second claim, as the Court already explained in its order, the Court is not dictating the allocation of the settlement payment between defendants. It is only requiring notice of whatever allocation is decided between IBEW and PG&E before the settlement is finalized and class members release IBEW of claims against it. In any event, this supposed term that IBEW not be required to disclose its allocation before settlement is finalized is not set forth in any statement of terms. Moreover, the Plaintiff strongly disputes that there was any such agreement. Thus, as to the first factor, there is no controlling question of law. The law is clear that the Court cannot modify the settlement terms, but can modify the notice. Moreover, the Court's order at issue here permissibly modified the Notice and not the settlement terms. For these reasons, there are not substantial grounds for a difference of opinion regarding the legal issue. IBEW frames that issue as the Order purports to grant preliminary approval to the settlement while ordering the parties to modify substantive and material terms of their agreement without their consent and over Local 1245's previously stated objection to the modifications required by the Court, notwithstanding that the Court's authority is limited to approving or denying the settlement as a whole. Again, there is not substantial grounds for difference of opinion regarding the applicable law. While these cases may show a difference of opinion regarding whether and when allocation of defendants should be required in a notice to class members, they do not show substantial ground for difference of opinion regarding the legal issue here, which is whether the Court exceeded its legal authority when it required changes in the notice to class members of that agreement. Regarding the final factor of whether resolution of the legal issue would materially advance the ultimate termination of the litigation, IBEW states that clarification regarding the Court's authority to order modifications while also purporting to approve the entire settlement will therefore likely affect whether the pending settlement is enforceable, or whether the parties must determine among themselves where there is some other settlement they could reach that is acceptable to all parties that can be approved. This appears to be a thinly veiled threat that IBEW will attempt to withdraw from the settlement agreement if required to disclose its allocation before settlement is approved. The Court does not see any legitimate basis for IBEW to withdraw from the settlement agreement. Clearly, staying the case for the significant time it would take to obtain an order from the Ninth Circuit on this issue would not advance the ultimate termination of this litigation. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/y8n27grx from Leagle.com. Becky Greer, Individually and as Class Representatives, Timothy C. Budnik, Individually and as Class Representatives, Rosario Saenz, Individually and as Class Representatives, Ian Carty, Individually and as Class Representatives & Haley Markwith, Plaintiffs, represented by Charles Swanston, Fitzpatrick, Spini & Swanston, Erin Tsitidis Huntington -- ehuntington@wjhattorneys.com -- Wanger Jones Helsley PC, Lawrence J.H. Liu -- lliu@wjhattorneys.com -- Wanger Jones Helsley PC, Michael S. Helsley -- mhelsley@wjhattorneys.com -- Wanger Jones Helsley PC & Patrick D. Toole -- ptoole@wjhattorneys.com -- Wanger Jones Helsley PC. Maria Garcia Pesina, Plaintiff, represented by Charles Swanston, Fitzpatrick, Spini & Swanston,Erin Tsitidis Huntington, Wanger Jones Helsley PC, Michael S. Helsley, Wanger Jones Helsley PC & Patrick D. Toole, Wanger Jones Helsley PC. Pacific Gas and Electric Company, Defendant, represented by Robert G. Hulteng -- rhulteng@littler.com -- Littler Mendelson, Aurelio J. Perez -- aperez@littler.com -- Littler Mendelson, P.C. & Joshua D. Kienitz -- jkienitz@littler.com -- Littler Mendelson. POLARITYTE INC: Klein Law Firm Files Securities Class Action ------------------------------------------------------------ The Klein Law Firm disclosed that class action complaints have been filed on behalf of shareholders of the following companies. If you suffered a loss you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. PolarityTE, Inc. (NASDAQ:COOL) Lead Plaintiff Deadline: August 27, 2018 Class Period: March 31, 2017 - June 22, 2018 Allegations: the Company failed to disclose the true status of Patent #14/954,335 at the time it was acquired by the Company on April 7, 2017 and the months following; the updated status of Patent #14/954,335 after its June 4, 2018 final rejection by the United States Patent Office; and as a result of the foregoing, PolarityTE's publicly disseminated financial statements were materially false and misleading. Get additional information: http://www.kleinstocklaw.com/pslra- c/polarityte-inc?wire=3 [GN] POMONA VALLEY: Denial of "Doster" Class Certification Affirmed -------------------------------------------------------------- In the case, TERRI DOSTER, Plaintiff and Appellant, v. POMONA VALLEY HOSPITAL MEDICAL CENTER, Defendant and Respondent, Case No. B280005 (Cal. App.), Judge James Edward Rogan of the Court of Appeals of California for the Second District, Division Eight, affirmed the trial court's order denying Doster's motion for class certification. On June 17, 2014, Doster received emergency medical services at the Hospital. She signed an agreement which included a payment provision that she agrees to promptly pay all hospital bills in accordance with the regular rates and terms of the hospital; that she understands that all physicians and surgeons will bill separately for their services; should any account be referred to an attorney or collection agency for collection, she'll pay actual attorneys' fees and collection expenses; and all delinquent accounts will bear interest at the legal rate, unless prohibited by law. On Jan. 23, 2015, Doster sued the Hospital. Her operative complaint includes causes of action for unfair competition law, violation of the Consumer Legal Remedies Act, and declaratory relief. Doster seeks to represent a class only with respect to her declaratory relief cause of action. She sought a declaration that the Defendant's standard contracts for emergency room care only permit billing for, and collection of, amounts constituting the reasonable value of the treatment the Defendant provides. According to Doster this declaration is necessary to prevent the Hospital from relying on its "chargemaster," or master list of itemized charge rates. She acknowledges that no 'reasonable value' determinations are sought in her declaratory judgment claim. In her declaration in support of her motion for class certification, Doster averred that she received bills for $1,288 from the Hospital. She believes this amount is greater than the reasonable value of the services she received. She does not identify the services she received. At a hearing on her motion for class certification, Doster's counsel acknowledged that Doster was not asking the Court to determine reasonable value. The Counsel argued that with the declaration she requested, putative class members would be empowered to pursue individual actions or to negotiate with the Hospital. In its written order, the trial court explained that in the present case, it is unclear how a declaration would actually benefit the proposed Class. The declaration requested merely limits the Defendant to collect reasonable value of services without determining what is meant by 'reasonable value' and what the reasonable value would be for each type of service. The term 'reasonable value' is at best vague and amorphous and, therefore, the significance of such a ruling would be called into question. The benefit of a declaration to provide guidance for future conduct of the parties is unclear and undetermined. The benefit from certification does not appear to be substantial. And any benefit is outweighed by the burdens of individualized proof. The appeal followed. On appeal, Doster's primary argument is that the court erred in applying state rather than federal standards, and according to her, federal standards support granting class certification. She also argues that a class action would be a superior method of resolving the parties' controversy because patients in collection would be able to use a favorable Contract interpretation ruling to defend against Hospital's improper collections attempts based on Chargemaster rates and the Hospital would be required to show that its rates were reasonable. Judge Rogan holds that as the trial court correctly concluded, by curtailing her proposed class action, even if Doster obtained declaratory relief, neither she nor any putative class member would receive effective relief. The court would not determine whether Doster or any putative class member was billed more than the reasonable value of services. An individual determination as to the "reasonable value" of services rendered to each patient would remain necessary. It follows, as the trial court thoughtfully concluded, that a class action is not a superior method of resolving Doster's dispute with the hospital. In addition, the Judge finds that Doster's principal argument on appeal that the court should have applied federal law instead of state law has already been rejected. For these reasons, Judge Rogan affirmed the order denying Doster's motion for class action certification. The Respondent is entitled to costs on appeal. A full-text copy of the Court's May 25, 2018 Opinion is available at https://is.gd/7pSzWS from Leagle.com. Carpenter Law, Gretchen Carpenter -- gretchen@gcarpenterlaw.com; Law Office of Barry Kramer and Barry L. Kramer for Plaintiff and Appellant. Hooper, Lundy & Bookman, Amanda L. Hayes-Kibreab -- ahayes- kibreab@health-law.com -- Sansan Lin -- slin@health-law.com -- and Glenn E. Solomon -- gsolomon@health-law.com -- for Defendant and Respondent. PRICELINE.COM INC: Fort Smith A&P Joins Class-Action Lawsuit ------------------------------------------------------------ John Lovett, writing for Times Record, reports that the Fort Smith Advertising & Promotion Commission recently agreed to become part of a class action lawsuit against online travel companies to obtain transaction data on hotel rooms. Companies that operate sites like Priceline.com and Travelocity.com would have to produce A&P commissions listed in the suit the data within 30 s of a transaction if the plaintiffs win the lawsuit. Fort Smith joins A&P commissions in Pine Bluff and North Little Rock as plaintiffs in the class action, which seeks recovery of potentially unpaid tax receipts. The Thrash Law Firm and Williams & Anderson PLC in Little Rock are representing the plaintiffs. Revenues gained in April by Fort Smith's 3 percent lodging tax were up by about $9,800 with a total of $75,233. Total revenue for the Fort Smith Convention and Visitors Bureau as of April 30 is $272,192, which is about $10,300 under projections. Monthly expenses for the Visitors Bureau by the end of April were $73,769, or about $8,800 under budget and about $7,600 under budget for the year. The A&P fund balance for the Convention and Visitors Bureau as of April 30 is $427,286, according to the latest financial report. The Fort Smith Convention Center, also under the operation of the Fort Smith A&P, also had an increase in revenue for May of about $9,800, a 23 percent jump from the same time last year. The Convention Center's revenue for May was $52,151 compared to $42,325 in May 2017, and year-to-date revenue as of May 30 was $316,894, or 17.6 percent higher than the same time last year. With $36,492 from concessions, catering, vending and beverage sales, revenue in this sector is up by about $15,000 this year, according to the Convention Center's financial report. Expenses for the Convention Center in May were $139,933, a 45.8 percent increase, with year-to-date expenses at $645,468 and a fund balance of $519,0648. The city of Fort Smith subsidizes the Convention Center out of its general fund. The A&P has noted the center has a multi-million-dollar annual economic impact on the city. The top-five invoiced revenue events in May at the Convention Center were the Arkansas Master Gardener Conference ($8,592), the CarMart meeting ($5,275), the Chamber of Commerce Business Expo ($4,965), the Fort Smith Public Schools Celebration ($3,111) and the Fort Smith Symphony's "Home Grown Greatness" event ($3,765).[GN] PULSE BIOSCIENCES: Kaskela Law Files Class Action Lawsuit --------------------------------------------------------- Kaskela Law LLC is investigating Pulse Biosciences, Inc. on behalf of the Company's stockholders. The investigation seeks to determine whether Pulse's executive officers and/or directors have breached their fiduciary duties to the Company and its stockholders. Pulse stockholders are encouraged to contact Kaskela Law LLC (David Seamus Kaskela, Esq.) at (484) 258-1585 or (888) 715-1740, or via email at skaskela@kaskelalaw.com, to discuss this investigation and their legal rights and options. Stockholders may also visit http://kaskelalaw.com/pulse-biosciences-inc/for additional information. David Seamus Kaskela, Esq. Kaskela Law LLC 201 King of Prussia Road, Suite 650 Radnor, PA 19087 Telephone: (484) 258-1585 (888) 715-1740 Email: skaskela@kaskelalaw.com[GN] PENNSYLVANIA: Court Certifies Inmates Class in HCV Suit ------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania granting Plaintiffs' Renewed Motion for Class Certification in the case captioned SALVATORE CHIMENTI, ET AL., v. JOHN WETZEL, ET AL., Civil Action No. 15-3333 (E.D. Pa.). The Plaintiffs have brought this lawsuit against the Defendants asserting claims regarding the medical care provided to Department of Correction (DOC) inmates who have been diagnosed with Hepatitis C viral infections (HCV). Specifically, the Plaintiffs contend that the DOC Defendants have violated their rights under the Eighth Amendment and the Pennsylvania Constitution by adopting a policy for the treatment of inmates with chronic HCV that fails to provide them with appropriate medical care. The Plaintiffs seek to represent the following Class: all persons who are currently incarcerated in a Pennsylvania Department of Corrections (DOC) facility with a diagnosed condition of chronic Hepatitis C, and who have at least twelve (12) weeks or more remaining to serve on their sentences, and who have a life expectancy of over one year. Numerosity The United States Court of Appeals for the Third Circuit has stated that there is no minimum number of plaintiffs required to maintain a suit as a class action. The DOC Defendants argue that the class is not sufficiently numerous to support certification because only seven current DOC inmates had satisfied the Prison Litigation Reform Act's (PLRA) exhaustion requirement with respect to the claims asserted in this action prior to the filing of the Complaint. Chimenti, Leyva, and Maldonado all filed grievances with respect to the DOC's refusal to treat them with DAAs. The DOC contends that Leyva did not fully exhaust his administrative remedies in accordance with the PLRA before this suit was filed. However, the DOC Defendants do not suggest that either Chimenti or Maldonado has failed to satisfy the PLRA's exhaustion requirement. Consequently, the Court concludes that the PLRA's exhaustion requirement is satisfied through vicarious exhaustion and that the class is not limited to the seven prisoners with HCV who have personally exhausted their administrative remedies with respect to treatment with DAAs. The DOC Defendants have submitted evidence that, the DOC held 4968 inmates who have chronic HCV and had not been treated with DAAs. The COurt conclude that a class of 4968 inmates is sufficiently numerous that joinder of all members is impracticable and that the proposed class thus satisfies the numerosity requirement Commonality Commonality requires a plaintiff to show that 'there are questions of law or fact common to the class. The Plaintiffs assert that the following two questions of fact are both central to their claims and common to all of the members of the proposed class: 1. Whether the treatment regimens utilizing the DAA drugs are the proper, necessary, and standard course of treatment in the medical community; and 2. Whether denial of treatment regimens utilizing the DAA drugs to the Proposed Class will cause injury to the class members, including unnecessary pain and suffering, chronic illness, and death. In connection with their Eighth Amendment and Pennsylvania constitution claims, all class members share the common question of whether the DOC Defendants' policy or custom of withholding treatment with DAA drugs from individuals who have been or will be diagnosed with chronic HCV constitutes deliberate indifference to a serious medical need. Moreover, the relief the Plaintiffs seek on behalf of the putative class is an injunction changing the DOC's Hepatitis C Protocol in a manner that will affect all DOC inmates with HCV. The Court concludes, accordingly, that the commonality requirement is met in this case. Typicality In order to determine whether a plaintiff is markedly different from the class as a whole, we consider the attributes of the plaintiff, the class as a whole, and the similarity between the plaintiff and the class. In making our determination, the Court considers the following three factors: (1) the claims of the class representative must be generally the same as those of the class in terms of both (a) the legal theory advanced and (b) the factual circumstances underlying that theory; (2) the class representative must not be subject to a defense that is both inapplicable to many members of the class and likely to become a major focus of the litigation; and (3) the interests and incentives of the representative must be sufficiently aligned with those of the class. Chimenti Chimenti has already received treatment with DAAs and, accordingly, no longer personally needs the second of the three items in the requested injunction. However, there is no basis on the record before us upon which the Court could determine that Chimenti has no interest in requiring the DOC Defendants to formulate and implement a policy for the treatment of Hepatitis C that meets community standards of care or that he no longer needs monitoring and medical care for Cirrhosis or liver fibrosis. Defendants' failure to develop a policy to treat all inmates who have chronic HCV in accordance with community standards, which involves the use of DAAs. The Court further conclude, accordingly, that Plaintiffs have satisfied the typicality requirement as to Chimenti. Leyva The DOC Defendants contend that Leyva is not typical because he is subject to the defense that he failed to exhaust his administrative remedies in accordance with the PLRA prior to filing the instant lawsuit. Leyva is subject to the defense that he did not exhaust his administrative remedies prior to bringing suit. This defense, however, is not unique to Leyva, as the DOC Defendants have asserted that it applies to nearly all members of the putative class. Moreover, we have determined that vicarious exhaustion applies in this case. Since there is no question that Chimenti and Maldonado have properly exhausted their administrative remedies pursuant to the PLRA, the defense of failure to exhaust is not likely to become a major focus of this litigation. Consequently, the Court conclude that Leyva's failure to fully exhaust his administrative remedies with respect to his second grievance prior to filing suit does not destroy his typicality in this case. Maldonado The DOC Defendants argue that Maldonado is not a typical plaintiff because he has been released from the custody of the DOC and his claim is now moot. The Court concludes that this relation back doctrine applies to Maldonado even though he was paroled prior to the filing of Plaintiffs' Renewed Class Certification Motion because the first Motion for Class Certification was not decided on the merits, but was withdrawn by agreement of the parties. Since Maldonado was in the custody of the DOC at the time the original Motion for Class Certification was filed, the Court conclude that, notwithstanding his subsequent parole, he has a personal stake in obtaining class certification sufficient to assure that Art. III values are not undermined and his claim for class certification is not moot. Plaintiffs have, therefore, satisfied the typicality requirement as to Maldonado. The Court concludes that the typicality requirement is met as to all three named Plaintiffs in this case. Adequacy of representation Rule 23(a)(4) requires class representatives to fairly and adequately protect the interests of the class. The Court have reviewed the biographies of the Plaintiffs' counsel that were submitted in connection with the instant Motion and we conclude that class counsel possess more than adequate experience in both representing prisoners and prosecuting class actions. Moreover, class counsel's representation of the Plaintiffs over the more than two years that this case has been ongoing shows that they will vigorously prosecute this action and act at arm's length from the Defendants. The Court further concludes that the Plaintiffs' counsel are clearly qualified to represent the putative class in this action. With respect to the class representatives, the linchpin of the adequacy requirement is the alignment of interests and incentives between the representative plaintiffs and the rest of the class. The Court concludes that the interests of the named Plaintiffs are sufficiently aligned with the interests of the putative class that the named Plaintiffs will be adequate representatives. A full-text copy of the District Court's May 24, 2018 Memorandum is available at https://tinyurl.com/y7jgahht from Leagle.com. SALVATORE CHIMENTI, DANIEL LEYVA & DAVID MALDONADO, AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by ANGUS R. LOVE, PA INSTITUTIONAL LAW PROJECT, DAVID RUDOVSKY -- drudovsky@krlawphila.com -- KAIRYS RUDOVSKY MESSING FEINBERG & LIN, LLP, STEPHEN D. BROWN -- steven.bizar@dechert.com -DECHERT LLP, SU MING YEH, PA Institutional Law Project, CHRISTINE C. LEVIN -- christine.levine@dechert.com -- DECHERT LLP, ETHAN SOLOVE -- esolove@structurelaw.com -- STRUCTURE LAW GROUP, LLP & ROSE MARIE WONG -- rosie.wong@dechert.com -- DECHERT LLP. JOHN WETZEL, SECRETARY OF THE (DOC) & PAUL NOEL, CHIEF MEDICAL DIRECTOR, PENNSYLVANIA DOC, Defendants, represented by VINCENT R. MAZESKI, CHIEF COUNSEL'S OFFICE PENNSYLVANIA DEPT OF CORRECTIONS. CORRECT CARE SOLUTIONS, WEXFORD HEALTH SOURCES, INC. & DR. JOHN KEPHART, MEDICAL DIRECTOR (FORMER), SCI SMITHFIELD, Defendants, represented by CAITLIN J. GOODRICH -- cgoodrich@wglaw.com -- WEBER GALLAGHER, NOAH EVAN KATZ -- nkatz@wglaw.com -- WEBER GALLAGHER & SAMUEL H. FOREMAN -- sforeman@wglaw.com -- WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP. DR. JAY COWAN, MEDICAL DIRECTOR, CORRECT CARE SOLUTIONS. & DR. JAMES FROMMER, MEDICAL DIRECTOR, SCI SMITHFIELD, Defendants, represented by CAITLIN J. GOODRICH, WEBER GALLAGHER & SAMUEL H. FOREMAN, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP. QUALCOMM INC: Klein Law Firm Files Securities Class Action ---------------------------------------------------------- The Klein Law Firm disclosed that class action complaints have been filed on behalf of shareholders of the following companies. If you suffered a loss you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. QUALCOMM Incorporated (NASDAQ:QCOM) Lead Plaintiff Deadline: August 7, 2018 Class Period: January 31, 2018 - March 12, 2018 Allegations: Qualcomm made materially false and/or misleading statements or failed to disclose that: Qualcomm had secretly filed a unilateral notice with CFIUS in order to frustrate Broadcom's attempt to acquire the Company; and investors suffered damages as a result of defendants' wrongful acts and omissions. Get additional information: http://www.kleinstocklaw.com/pslra- c/qualcomm-incorporated?wire=3. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. There is no cost or obligation to you. If you suffered a loss during the class period and wish to obtain additional information, please contact Joseph Klein, Esq. by telephone at 212-616-4899 or visit the webpages provided. [GN] QUEBEC: School Boards Ready to Pay Out $153.5MM in Settlement ------------------------------------------------------------- Presse Canadienne, writing for Montreal Gazette, reports that a class-action lawsuit brought against 68 school boards across Quebec by parents who argue they paid illegal school fees is close to being settled out of court. Without admitting responsibility, the school boards agreed to pay $153,507,134 in capital, interest, fees and additional compensation according to a press release issued on June 30 morning. According to notices on the school boards' websites, each parent could receive $28.49 per student per year covered by the class action. The period of time included in the class action varies among school boards between the 2008-2009 and 2016-2017 school years. The settlement must still be approved by a tribunal scheduled to take place July 18 in Chicoutimi. A mother of a family from Saguenay, Daisye Marcil, started the class action. The initial demand was submitted in September 2016 and was authorized by the court in December of that year. The lawsuit denounces illegal school fees that violate articles of the Charter of Human Rights and Freedoms. The mother of two estimated that school boards were violating the Education Act that says that elementary and high school must be free. The complainants' lawyers did not respond to a request for comment.[GN] RAYMOURS FURNITURE: Judge OKs Class Action Over Text Messages ------------------------------------------------------------- Bill Wichert, writing for Law360, reports that a New Jersey federal judge has approved Raymours Furniture Co. Inc.'s bid to move a putative class action over allegedly unsolicited text messages to New York federal court based on the forum selection clause in a sweepstakes agreement to which a consumer consented when she provided her phone number to the retailer. U.S. District Judge Brian R. Martinotti on June 29 granted the company's motion to transfer Evelyn Manopla's lawsuit to the Northern District of New York. The case is styled MANOPLA v. RAYMOURS FURNITURE COMPANY, INC. Case No. 3:17-cv-07649 (D.N.J.). The case is assigned to Judge Brian R. Martinotti. The case was filed September 29, 2017. [GN] RENZENBERGER INC: Court Issues Protective Order in "Wright" ----------------------------------------------------------- Magistrate Judge Alicia G. Rosenberg of the U.S. District Court for the Central District of California, Western Division, has issued a Stipulated Protective Order in the case, RODERICK WRIGHT, FERNANDO OLIVAREZ, and MARCUS HAYNES, JR., and MICHAEL WATSON, individuals on behalf of themselves and others similarly situated, Plaintiffs, v. RENZENBERGER, INC., a Kansas corporation; and DOES 1 through 10, inclusive, Defendant, Case No. 2:13-cv-06642-FMO-AGR (C.D. Cal.). The Parties jointly request the Court to enter their Stipulated Confidentiality Agreement as an order for the conduct of discovery in the case. They agree to be bound by the terms set forth therein with regard to any Confidential Materials that have been produced before the Court signs the Stipulation and Protective Order. All Confidential Documents and Confidential Information in the Action must be used by the Receiving Party solely for purposes of the prosecution, defense or settlement of the Action, including, without limitation, discovery, motions, briefs and preparation for the trial, appeals, and for no other purpose, except as otherwise stated in the Protective Order. Unless and until otherwise ordered by the Court or otherwise agreed by the Parties, all documents designated as "Confidential" or "Confidential - Attorneys Eyes Only" must be treated accordingly under the Protective Order. Following the receipt of documents marked "Confidential" or "Confidential - Attorneys Eyes Only," any Party to the Action may object to the designation of the document and seek a modification of the designation. The termination of proceedings in the Action will not relieve any Receiving Party from the obligation of maintaining the confidentiality of all Confidential Documents and Confidential Information produced and designated pursuant to the Protective Order, unless all of the Parties to the Action agree otherwise or unless the Court rules otherwise. Upon the final disposition of the Action including any appeals, the Parties will, upon request of the Designating Party, return any Confidential Documents and documents containing Confidential Information (including, in each case, all copies and summaries) to the Designating Party from whom/which Confidential Documents or documents containing Confidential Information were obtained, or may provide to the counsel for the Designating Party certification in writing that all Confidential Documents and documents containing Confidential Information have been destroyed and that this information has been purged from all machine- readable media on which it resides. However, the Parties will be entitled to keep any court filings, attorney work product, deposition transcripts or hearing transcripts, all of which will continue to be governed by the Protective Order. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/MJrG02 from Leagle.com. Roderick Wright, Fernando Olivarez & Marcus Haynes, Jr., individuals on behalf of themselves and others similarly situated, Plaintiffs, represented by Kye Douglas Pawlenko -- kpawlenko@helpcounsel.com -- Hayes Pawlenko LLP & Matthew B. Hayes -- mhayes@helpcounsel.com -- Hayes Pawlenko LLP. Renzenberger, Inc., a Kansas corporation, Defendant, represented by Leah S. Strickland -- lstrickland@swsslaw.com -- Solomon Ward Seidenwurm and Smith LLP & William V. Whelan -- wwhelan@swsslaw.com -- Solomon Ward Seidenwurm & Smith LLP. RHODE ISLAND: Settlement in Retirement Benefits' Suits Affirmed -------------------------------------------------------------- In the case, Joseph Clifford et al., v. Gina Raimondo, in her capacity as Governor of the State of Rhode Island, et al. Rhode Island Public Employees' Retiree Coalition et al., v. Gina Raimondo, in her capacity as Governor of the State of Rhode Island, et al, Case Nos. 2015-379-Appeal, 2016-24-Appeal, 2016- 25-Appeal, 2016-26-Appeal, 2016-28-Appeal, 2016-49-Appeal (R.I.), Judge Gilbert V. Indeglia of the Supreme Court of Rhode Island affirmed the class-action settlement that was approved by a Superior Court trial justice in 2015. Rhode Island's problems all came to a breaking point in 2009, at the depth of the recession, at which time government officials realized they needed to address the depletion of funding in the state and municipal employee retirement systems. As a result, in 2009 and 2010, the General Assembly amended the statutes governing the pension system, changing the retirement age and reducing the cost-of-living adjustment ("COLA"). In 2011, the General Assembly took more drastic action and passed the Rhode Island Retirement Security Act of 2011 ("RIRSA"), which abridged the retirement benefits of state and municipal employees even further. In response, a number of lawsuits were filed by various state and municipal unions on behalf of their affected members. The first lawsuit was filed in 2010 by a number of unions representing state employees and teachers, alleging that the 2009 and 2010 amendments violated the Contract, Takings, and Due Process Clauses of the Rhode Island Constitution. Then, in 2012, five lawsuits were brought on behalf of various unions and retirement associations challenging RIRSA, alleging the same constitutional claims as alleged in the 2010 lawsuit. In 2013, all parties involved in both the 2010 and 2012 cases were ordered to attend mediation. After months of mediation, the parties reached a proposed settlement in February 2014, subject to approval by all members of the unions. On April 16, 2015, after hearing argument on the motions, the trial justice issued a written decision granting the Union plaintiffs' motion for class certification in accordance with Rule 23(b)(2) of the Superior Court Rules of Civil Procedure, designating the class representatives and appointing class counsel for the Plaintiffs and Defendants. The Plaintiff class was defined as all persons (and/or their beneficiaries) who, on or before July 1, 2015, are receiving benefits or are participating in the State Employees, Teachers, or Municipal Employees' retirement systems administered by ERSRI and all future employees, excepting only those individuals who on July 1, 2015, are participating in a municipal retirement system administered by ERSRI for municipal police officers in any municipality and/or for fire personnel of the City of Cranston. Additionally, the trial justice certified a number of Plaintiff subclasses, described as follows: a. State Employees and Teachers: Participants in the Teachers and State Employees Retirement System ("ERS") who are employed on or before July 1, 2015, but who have not retired as of June 30, 2015 and all future employees; b. Participants in the Municipal Employees Retirement System ("MERS"), other than police or fire units: Participants in MERS, other than police or fire units, employed on or before July 1, 2015, but who have not retired as of June 30, 2015 and all future employees; c. Participants in all fire MERS units, except for fire personnel of Cranston: Participants in all fire MERS units, except for fire personnel of Cranston, employed on or before July 1, 2015, but who have not retired as of June 30, 2015 and all future employees; d. Retirees: All retired members and beneficiaries of retired members who retired on or before June 30, 2015, who are receiving a retirement benefit under ERS or any MERS unit. The trial justice also certified the Defendant class of all municipal entities that participate in MERS and all municipal entities that employ teachers who participate in the state employees and teachers' ERS. The trial justice granted the parties' joint motion for preliminary approval of the class settlement. Additionally, the trial justice scheduled a fairness hearing for May 20, 2015, for the purpose of final approval of the settlement. As part of her decision, the trial justice summarized the terms of the proposed settlement as follows: a. A one-time COLA payment of 2% applied to the first $25,000 of the pension benefit and that amount added to the base benefit will be paid to retirees (or their beneficiaries) who participate in a COLA program and who retired on or before June 30, 2012 as soon as administratively reasonable following the passage of the legislation based on the amount of benefit payable on the effective date of the legislation. b. For funds that are not already funded, the settlement shortens the time intervals between suspended COLA payments from once every five years to once every four years. The settlement also improves the COLA limitation for current retirees whose COLA is suspended. The settlement also requires a more favorable indexing of COLA Cap for all current and future retirees. The settlement also changes the COLA calculation to one more likely to produce a positive number and dictates that the COLA formula will be calculated annually, regardless of funding level, and when paid, the COLA will be compounded for all receiving a COLA. c. Current retirees (or their beneficiaries) who have or will have retired on or before June 30, 2015 will receive two payments: (1) a one-time $500 stipend (not added to the COLA base) within sixty days of the enactment of the legislation approving the terms of the settlement and (2) a one-time $500 stipend payable one year later. d. For State Workers, Teachers, and General MERS, the settlement (1) adds another calculation to reduce the minimum retirement age; (2) improves the available accrual rate for employees with twenty years or more of service as of June 30, 2012; (3) requires increased contributions by the employer to the Defined Contribution Plan for employees with ten or more years of service (but less than twenty) as of June 30, 2012; (4) waives the administration fee for any employees participating in the Defined Contribution Plan who make $35,000 or less; and (5) adds another calculation designed to limit the impact of the 'anti- spiking' rule imposed by the RIRSA on part-time employees. e. For MERS Firefighters (excluding Cranston Firefighters), the settlement (1) lowers the age and service requirements for retirement; (2) increases the accrual rate for Firefighters who retire at age fifty-seven with thirty years of service. f. For State Correctional Officers, the settlement increases the accrual rate for correctional officers with fewer than twenty-five years of service as of June 30, 2012. g. The settlement reduces the impact of an early retirement. h. The settlement allows Municipalities to 're-amortize'; that is, partially refinance, to be able to pay for the increased cost of the settlement. i. Otherwise, the terms of the RIRSA remain the same. In response to the notices that were mailed and published for the benefit of class members, the Superior Court received approximately 400 objections to the settlement agreement, which raised a number of procedural and substantive concerns. Sixty- nine class members requested an opportunity to be heard at the fairness hearing. In her written decision, the trial justice reaffirmed her certification of the settlement classes in accordance with Rule 23(b)(2), consistent with her April 16, 2015 decision. Finally, in reviewing the terms of the settlement, the trial justice found that it was both procedurally and substantively fair. After the trial justice's decision, the legislature enacted the 2015 amendments to RIRSA, implementing the terms of the settlement. Both the Clifford plaintiffs and the Retiree plaintiffs appealed the trial justice's decision in the class action. On appeal, the Union Plaintiffs joined the state Defendants as the Appellees. Although both the Clifford Plaintiffs and the Retiree Plaintiffs astutely attempt to diversify their arguments before the Court, Judge Indeglia finds only two arguments squarely remaining in the Plaintiffs' portfolio: whether the trial justice's certification of the class was appropriate, and whether the settlement was fair, reasonable, and adequate. The Judge concluded that the trial justice did not err in finding that the prerequisites of Rule 23(a) were met; that the relief sought fits squarely within those claims contemplated by Rule 23(b)(2), and, thus, because any money damages would be incidental to the declaratory and equitable relief sought, the trial justice did not abuse her discretion in certifying the class pursuant to that subsection; and that the subclass of retirees had differing interests from active employees. Turning to the terms of the settlement agreement, the Judge is satisfied that the trial justice did not overlook any of the concerns raised by the various objectors to the settlement; conducted an exhaustive review of the factors necessary to determine whether the settlement was fair, reasonable, and adequate; and properly balanced the benefits and drawbacks of the settlement. He concludes that she did not abuse her discretion in concluding that the settlement was fair, reasonable, and adequate. For these reasons, Judge Indeglia denied and dismissed the Clifford Plaintiffs' and the Retiree Plaintiffs' appeals; and affirmed the judgments. The papers in the case are remanded to the Superior Court. A full-text copy of the Court's May 25, 2018 Opinion is available at https://is.gd/P8aYGm from Leagle.com. Thomas M. Dickinson, Esq. -- tmd@appealri.com -- Edward C. Roy, Jr., Esq., Lynette J. Labinger, Esq., Michael B. Forte, Jr., Esq. Carly Beauvais Iafrate, Esq. Joseph F. Penza, Jr., Esq. Thomas R. Landry, Esq. Douglas L. Steele -- info@wmlaborlaw.com -- Pro Hac Vice, for Plaintiffs. John A. Tarantino, Esq. -- jtarantino@apslaw.com -- Nicole J. Benjamin, Esq. -- nbenjamin@apslaw.com -- Joseph Avanzato, Esq. -- javanzato@apslaw.com -- Patricia K. Rocha, Esq. -- procha@apslaw.com -- Rebecca T. Partington, Esq. -- rtarantino@apslaw.com -- Michael W. Field, Esq., for Defendants. SAN DIEGO, CA: Cal. App. Affirms Demurrer Ruling in "Reid" Suit --------------------------------------------------------------- In the case, YVONNE REID et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents, Case No. D072493 (Cal. App.), Judge Gilbert Nares of the Court of Appeals of California for the Fourth District, Division One, affirmed the trial court's order sustaining the Defendants' demurrer without leave to amend on statute of limitations and other grounds. Plaintiffs Reid and Serena Wong sued the City of San Diego and the San Diego Tourism Marketing District ("TMD") in a putative class action complaint, challenging what they allege is an illegal hotel tax. In November 2010 California voters approved Proposition 26. Proposition 26 sought to tighten existing restrictions on local revenue-generating measures by defining "tax" broadly to mean any levy, charge, or exaction of any kind imposed by a local government" that did not fall within one of seven enumerated exceptions. It also required the electorate to approve laws increasing taxes, and shifted to the government the burden of demonstrating that any charge, levy, or assessment is not a tax. In 2012 San Diego hotel operators petitioned the City to renew the TMD for another 39.5 years. On Nov. 26, 2012, the City Council adopted a resolution (R-307843) approving a renewed TMD Plan and levied assessments for 39.5 years. Under the renewal assessment, the City assessed all hotels in the district, not just those with 70 or more rooms. On Dec. 19, 2012, San Diegans for Open Government ("SDOG") filed an action challenging the renewal assessment as being an unconstitutional tax in violation of Proposition 26, San Diegans for Open Government v. City of San Diego (Super. Ct. San Diego County, 2017, No. 37-2012-00088065-CU-MC-CTL). SDOG alleged it is a "non-profit taxpayer and voter organization and asserted that one of its members owned a single unit subject to the renewal assessment. After SDOG voluntarily dismissed one cause of action and another was summarily adjudicated in the City's favor, by 2016 the gravamen of SDOG's claim was that the TMD assessment is an illegal tax that was euphemistically labeled an "assessment" to get around the voter-approval requirements in Proposition 26. In August 2016, while the SDOG litigation was pending, the City Council adopted a resolution (R-310664) eliminating hotels with fewer than 70 rooms from the TMD assessment. After the 2016 amendment, the defendants in the SDOG litigation moved for judgment on the pleadings, asserting (1) SDOG lost standing because it claimed only one owner of one rental property as a member, which was no longer subject to the assessment; and (2) the action was moot because the 2012 renewal assessment was superseded by the 2016 amendment. On Sept. 30, 2016, the trial court entered judgment for the defendants in the SDOG litigation, ruling the action was "moot." Approximately two months after the SDOG judgment, Reid filed the instant action. The following month, Plaintiffs filed a first amended complaint (complaint) "individually and on behalf of all others similarly situated and the general public." The class period is January 1, 2013 to August 31, 2016. Unlike the SDOG litigation, Plaintiffs are alleged to be hotel guests who paid the assessment as part of their hotel bill. The gravamen of the Plaintiffs' claim is that the 2012 renewal assessment is a disguised tax that violates Proposition 26 because it was never submitted to the electorate for a vote. The Plaintiffs allege that the City uses the TMD as a ruse to raise revenue for the general fund without having to seek voter approval to impose a new tax. The complaint alleges that the Plaintiffs and the class members paid this illegal hidden hotel tax that the Defendants have disguised as a Tourism Marketing District Assessment by staying at one or more of the assessed hotels during the period between Jan. 1, 2013 and Aug. 31, 2016. It alleges the TMD assessment is really a tax within the meaning of article XIII C, section 1, subdivision (e) of the California Constitution and, because the TMD was formed without voter approval as required by law, the City's imposition of the TMD assessment is unlawful. The complaint challenges the legality of the TMD Procedural Ordinance and seeks a declaration of the parties' rights with respect to the TMD Operating Agreement dated Nov. 26, 2012 and the TMD Management Plan dated Sept. 11, 2012. The complaint contains five causes of action: (1) declaratory relief that the TMD Plan and TMD Agreement are invalid because the City lacked the legal capacity to authorize the levy of the TMD assessment without first obtaining voter approval as required by Proposition 26; (2) declaratory relief challenging the TMD Procedural Ordinance as unconstitutional because it has imposed an illegal tax; (3) declaratory relief challenging the TMD Procedural Ordinance as unconstitutional because it denies equal protection by making classifications between business owners with respect to the fundamental right to vote; (4) waste of taxpayer funds; and (5) a petition for a writ of mandate seeking a constructive trust and restitution of the amounts in which the City has been unjustly enriched through its unlawful imposition of the TMD Assessment. The Defendants demurred to the complaint, asserting the first (declaratory relief Proposition 26 violation), fourth (taxpayer waste), and fifth causes of action (writ of mandate) were barred by (1) the res judicata effect of the judgment of dismissal in the SDOG litigation and (2) either the 30-day statute of limitations in Municipal Code sections 61.2517 and 62.2526, subdivision (b) or the 60-day period for bringing a reverse validation proceeding under Municipal Code section 61.2526, subdivision (a) and Code of Civil Procedure section 860 et seq. They also asserted that the first cause of action was moot because the 2012 renewal assessment had been superseded by the August 2016 amendment. The court sustained the demurrer to the first, fourth, and fifth causes of action on the grounds the claims are barred by the 60- day statute of limitations in Municipal Code section 61.2526, subdivision (a) and Code of Civil Procedure section 860. It also held such claims were precluded by the SDOG judgment. The court sustained the demurrer to the second cause of action on the grounds the Procedural Ordinance does not impose or assess tax. Citing Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973) 410 U.S. 719, the court sustained the demurrer to the third cause of action (equal protection) on the grounds a public entity may limit approval of an assessment to those entities that pay it. The Plaintiffs timely appealed from the judgment of dismissal. The Defendants contend the appeal is completely devoid of merit because all challenges to the validity of the renewal assessment are barred by the 60-day statute of limitations under the validation statutes. They seek $25,149 in appellate sanctions against the Plaintiffs' lawyers for pursuing what they contend is a frivolous appeal. Judge Nares finds two apparent problems with the Defendants' assertion that the complaint is subject to the 60-day validation statute of limitations under Municipal Code section 61.2526, subdivision (a). The first problem is that the Defendants' argument creates an internal inconsistency in Municipal Code section 61.2526. He says the relevant point is that under Municipal Code sections 61.2517 and 61.2526, a reasonable argument can be made that the Plaintiffs' action is not subject to validation procedures and, therefore, their appellate arguments challenging the order sustaining the demurrer on that ground are not frivolous. The second potential problem with the Defendants' argument, he says, is that it is an open question whether a charter city may self-trigger its actions to be validation proceedings under Code of Civil Procedure section 860. Even after a request for supplemental briefing, the Defendants are unable to cite any case where the validation statutes have been triggered by a municipal ordinance, as distinguished from a state statute. Indeed, the Defendants concede that no case squarely holds a charter city may establish a cause of action in validation and restrict claims to that form of action. The Defendants also contend the appeal is frivolous because the SDOG litigation was a reverse validation action, and the judgment there carries "res judicata" effects barring the complaint. However, he finds that although the entire SDOG litigation record is not before the Court, from the record, it is fairly debatable whether the SDOG litigation was a reverse validation action. Finally, there is one additional reason the appeal is not frivolous. The Judge finds that although the Plaintiffs' attempts to overcome the 30-day statute of limitations was weak, the Defendants demurred only to the first, fourth, and fifth causes of action on statute of limitations grounds. As a result, to obtain a judgment of dismissal, the Defendants were required to prevail on the equal protection issue. The Plaintiffs' equal protection argument was unpersuasive, but certainly not frivolous. For these reasons, Judge Nares affirmed the judgment and denied the motion for sanctions. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/9bEGT4 from Leagle.com. Law Offices of Ronald A. Marron, Ronald A. Marron -- ron@consumersadvocates.com -- and Michael T. Houchin -- admin@consumersadvocates.com -- for Plaintiffs and Appellants. Mara W. Elliott, City Attorney, and Carmen A. Brock-- cbrock@sandiego.gov -- Deputy City Attorney, for Defendant and Respondent City of San Diego. Colantuono, Highsmith & Whatley, Michael G. Colantuono -- mcolantuono@chwlaw.us -- and Ryan Thomas Dunn -- rdunn@chwlaw.us -- for Defendant and Respondent San Diego Tourism Marketing District Corporation. SEATTLE GENETICS: Court Dismisses "Patel" Securities Suit --------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, granted Defendant's Motion to Dismiss Consolidated Second Amended Complaint (CSAC) in the case captioned SAMIT PATEL, individually and on behalf of all others similarly situated, Plaintiff, v. SEATTLE GENETICS, INC., CLAY B. SIEGALL, TODD E. SIMPSON, and JONATHAN DRACHMAN, Defendants, Case No. C17-41 RSM (W.D. Wash.). The CSAC sought remedies, under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, for the Plaintiff and all persons or entities who purchased or otherwise acquired Seattle Genetics, Inc.'s common stock. The Defendants now seek dismissal of Plaintiff's CSAC, arguing that the Plaintiff failed to cure the deficiencies identified by the Court and that the CSAC still fails to adequately state a claim. Securities fraud claims are subject to heightened pleading standards under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act (PSLRA). The Plaintiff must show: (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. The Defendants argue that the Plaintiff has not adequately alleged scienter. Scienter Allegations Confidential Witness Allegations Confidential Witness 1 (CW1) does not sufficiently establish that the Individual Defendants ever learned of CW1's concerns, environmental or otherwise. CW1's allegation that information relating to the toxicity of 33A was available on Seattle Genetics' intranet does not establish that the Individual Defendants were required to review it, had reason to access it, or ever viewed the information. The allegations require a speculative jump as opposed to an inference. CW2's allegations suffer the same defects as CW1's. CW2 does not allege a factual basis that would have allowed CW2 to know that the Individual Defendants knew the most intimate details about Mylotarg. Nor does CW2 indicate what deep concerns were shared at the company-wide meetings attended by the Individual Defendants or when the meetings took place. CW2's general allegations are not sufficiently particularized to demonstrate personal knowledge that individuals within Seattle Genetics were aware of the risks of hepatotoxicity associated with 33A's clinical trials. Timing of Clinical Holds The Plaintiff's allegations must be more particularized to demonstrate scienter. The CSAC includes no allegations as to when the events actually occurred or which clinical trial they occurred in. And while the Plaintiff's allegations may make it more plausible that the events occurred before the December 3 and 5 press releases, they do not bear on when the Individual Defendants learned of the events. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ybmnsjjp from Leagle.com. Samit Patel, individually and on behalf of all others similarly situated, Plaintiff, represented by Joshua Silverman -- jbsilverman@pomlaw.com -- POMERANTZ LLP, pro hac vice, Omar Jafri -- ojafri@pomlaw.com -- POMERANTZ LLP, pro hac vice & Clifford A. Cantor. Carl Johnson, Plaintiff, represented by Clifford A. Cantor, Joshua Silverman, POMERANTZ LLP, pro hac vice, Omar Jafri, POMERANTZ LLP, pro hac vice & Patrick V. Dahlstrom, POMERANTZ LLP, pro hac vice. Seattle Genetics, Inc, Clay B. Siegall & Todd E. Simpson, Defendants, represented by Gregory Lewis Watts -- Gwatts@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI & Barry M. Kaplan -- bkaplan@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI. SBE ENTERTAINMENT: Court Denies Summary Judgment in "Walintukan" ---------------------------------------------------------------- The United States District Court for the Northern District of California denied Defendants' Motion for Summary Judgment in the case captioned DERIC WALINTUKAN, Plaintiff, v. SBE ENTERTAINMENT GROUP, LLC, et al., Defendants, Case No. 16-cv-01311-JST (N.D. Cal.). Walintukan received, at the phone number he provided, a text message promoting an unrelated event at the Create Nightclub. Five days later, he received a second text message promoting another unrelated event at Create. He successfully opted out of receiving any further text messages. Walintukan asserts that the Defendants violated his rights under the Telephone Consumer Protection Act (TCPA). The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent. The Defendants argue that the text messages involved in this case fall squarely within the scope of consent test articulated by the Court of Appeals in Van Patten both from a temporal and a subject matter standpoint. Here, the Defendants' text messages concerned different events by different artists at the Create Nightclub. The only connection to the transaction in which Walintukan provided his phone number was that the events were occurring at the same venue. The Defendants' statement that there is simply no difference between a gym asking a customer to come back to the gym and a club asking a customer to come back to the club is incorrect. Unlike the gym membership in Van Patten, which contemplates an ongoing relationship by the very nature of a monthly membership system, purchasing an event ticket is much more discrete in nature. Just as the Trenz court found that the transactional context in which the plaintiffs gave their contact information to the defendant dealerships was limited to those particular service appointments and did not include future servicing of their vehicles, this Court concludes that the transactional context in which Walintukan provided his contact information was limited to the particular event for which he was purchasing a ticket. It does not include any and all future events at the same venue. The Defendants have failed to meet their burden of demonstrating that Walintukan provided prior express consent to receive the two text messages at issue in this case. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/y8aq6kmn from Leagle.com. Deric Walintukan, as an individual and on behalf of all others similarly situated, Plaintiff, represented by Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Abigail Ameri Zelenski -- abigail@jlglawyers.com -- Jaurigue Law Group, David Zelenski -- david@jlglawyers.com -- Jaurigue Law Group, Marc L. Godino -- mgodino@glancylaw.com -- Glancy Binkow & Goldberg LLP, Mark Samuel Greenstone -- mgreenstone@glancylaw.com -- Glancy Prongay & Murray LLP, Michael Joe Jaurigue -- michael@jlglawyers.com -- Jaurigue Law Group & Ryan A. Stubbe - ryan@jlglawyers.com -- Jaurigue Law Group. SBE Entertainment Group, LLC, a California limited liability company, 6021 Hollywood Investor, LLC, a California limited liability company & 6021 Hollywood Operating Company, LLC, a California limited liability company, Defendants, represented by Kimberly Irene Culp -- kculp@venable.com -- Venable LLP, Witt W. Chang -- wchang@venable.com -- Venable LLP & Ari N. Rothman -- anrothman@venable.com -- Venable LLP. Spoonful Management LLC, a California limited liability company, Defendant, represented byAri N. Rothman, Venable LLP & Kimberly Irene Culp, Venable LLP. SEIU: Riffey Ruling May Have Implications for Union Class Action ---------------------------------------------------------------- Sean Higgins, writing for Washington Examiner, reports that organized labor, already reeling from a potentially major financial hit thanks to a Supreme Court ruling that could result in millions of public-sector workers cutting off funding, could be subject to another blow from the justices: class-action suits from those workers seeking to get paid back from the unions. In a little-noticed action, the Supreme Court invalidated a ruling by the 7th Circuit Court denying class-action certification in a case called Riffey v. Rauner. The case involved nonunion state-subsidized Illinois home healthcare workers seeking to be repaid the funds that for years they were forced to give to the union that ostensibly represented them. The justices in effect told the lower court to do it again in light of their ruling in the case Janus v. American Federation of State, County and Municipal Employees. Janus found that coerced dues from nonunion public-sector workers were unconstitutional. The lower court could simply reaffirm its earlier ruling in Riffey, but the Supreme Court's move indicates it could be open to an appeal of that. A win for the plaintiffs in either scenario could be a huge blow to public-sector union finances. The Riffey case alone covers 80,000 state-subsidized homecare workers and seeks $32 million in funds from the union involved, Service Employees International Union Healthcare Illinois & Indiana. "The Riffey case is big even on its own terms. But it has implications for other cases. If individuals sue on behalf of employees to recover back money taken from them under Janus, they'll run into the same class-certification issues that Riffey has encountered. So how the court resolves Riffey could have implications for any number of future cases," said Bill Messenger, attorney for the National Right to Work Legal Defense Foundation. Messenger represented the clients in both Janus and Riffey. Scott Kronland, attorney for the SEIU chapter, said there was no reason to think the 7th Circuit would rule any differently this time and little reason to think the Supreme Court would take up an appeal. "The Riffey case just involves the question of class certification and it was denied for multiple reasons. What happened in Janus isn't going to change the determination that class action was properly denied," Kronland said. Riffey v. Rauner was originally titled Harris v. Quinn and was itself a major Supreme Court ruling in 2014. The case involved whether the subsidized home healthcare workers were in fact state employees eligible for unionization, a policy change first implemented in 2004 by then-Illinois Gov. Rod Blagojevich, a Democrat and staunch union ally. SEIU Healthcare initially organized the homecare workers without a formal vote after Blagojevich accepted the union's claim to have majority support among them. In the decade following that, numerous Democrat- leaning states accepted union bids to represent their subsidized homecare workers, automatically deducting union dues from the homecare worker's subsidy checks. In many cases, the workers, most of whom simply took care of invalid family members, were never even aware that they had been unionized. The Supreme Court ruled in Harris v. Quinn that the Illinois healthcare workers were never state employees in the first place and therefore couldn't be organized. Following that, the plaintiffs in Harris v. Quinn sued to be paid back the fees the union had gotten from them. The name of the case was later changed to reflect that Republican Bruce Rauner was now Illinois governor and that lead plaintiff Pamela Harris had dropped out. Harris had been under a branch of the Illinois subsidy program that hadn't been unionized and therefore she wasn't eligible to be part of a class action. The 7th Circuit rejected the class-certification request, saying there was insufficient evidence to believe that most of the Illinois healthcare workers did not support a union and that the plaintiffs couldn't show that a class-action suit was better than letting individual homecare workers sue the union if they chose. The Supreme Court invalidated that ruling and told the lower court to reconsider it in light of Janus. "The union argued, and the 7th Circuit agreed, that you couldn't prove that the individuals didn't want the union to take their money. In other words, that an objection was required. That brought up the opt-in/opt-out issue that Janus resolved. Janus said, 'No, you need affirmative consent from somebody before you can take their money,'" Messenger said. Exactly what defines affirmative consent is unclear. Unions have argued that workers signing documents should count like any other contract. Maliee Smith, staff attorney for the conservative Illinois Policy Institute, argues that Janus set the bar much higher and it invalidated such signatures. "Those who chose to be members were not presented with constitutional options, meaning that consent was not fully informed," she said in an analysis of the Janus ruling. Both sides in Riffey v. Rauner will present new arguments by this fall. It is unclear when the appeals court will issue a new ruling. A spokesperson for SEIU Healthcare Illinois & Indiana could not be reached for comment. [GN] SERENITY SPA: Court Dismisses "Benavides" FLSA Suit --------------------------------------------------- In the case, GLORIA BENAVIDES and FANNY YIN-FANG LIN, on behalf of themselves, FLSA Collective Plaintiffs and the Class, Plaintiffs, v. SERENITY SPA NY INC., et ano., Defendants, Case No. 15-CV-9189 (JLC) (S.D. N.Y.), Judge James L. Cott of the U.S. District Court for the Southern District of New York granted the parties' requests for (1) decertification of the Rule 23 class; (2) approval of the parties' settlement, as embodied by the offer of judgment and its acceptance; (3) dismissal of individual Defendant Yu Qun Dai from the proceeding; and (4) entry of judgment in favor of the Plaintiffs and dismissal of the case with prejudice. Benavides filed her complaint against Defendants Serenity Spa and Yu Qun Dai on Nov. 20, 2015, alleging violations of the Fair Labor Standards Act ("FLSA"), New York Labor Law ("NYLL"), and New York State and New York City Human Rights Laws. On May 11, 2016, Benavides filed her first amended complaint, and the Defendants filed their answer on May 25, 2016 . On May 31, 2016, Benavides moved for conditional collective action certification of her FLSA claims. The Defendants opposed the motion. By memorandum order dated Aug. 3, 2016, the Court granted Benavides' motion for conditional collective certification and directed that notice of the certification, as well as a consent to sue form, be sent out to potential class members. Thereafter, the parties engaged in discovery, during which the Defendants produced a list of names of 52 non-exempted employees who worked at Serenity Spa during the relevant period. On Aug. 31, 2016, Benavides filed motions seeking (1) class certification of her NYLL claims under Rule 23, and (2) summary judgment on her FLSA and NYLL claims. The Defendants opposed both motions. In the interim, on Nov. 28, 2016, Plaintiff Fanny Yin-Fang Lin joined the action by filing a notice of consent to become a plaintiff. By memorandum opinion and order dated Sept. 1, 2017, the Court granted Benavides and Lin's motion for class certification under Rule 23 but denied their motion for summary judgment without prejudice. By letter dated Jan. 30, 2018, the Defendants' counsel reported that Dai had filed a petition for Chapter 13 bankruptcy. That same day the Court issued an order staying the case as to Dai as required by the automatic stay under 11 U.S.C. Section 362(a). On Feb. 22, 2018, the Plaintiffs filed a notice of acceptance of a Rule 68 offer of judgment made by Serenity Spa. Under the terms of the offer of judgment, Serenity Spa would allow Judgment to be entered against it in this action in the amount of $175,000. On March 9, 2018, the Court held a status conference with the parties during which they reported that they were negotiating a revised offer of judgment. On April 13, 2018, the Plaintiffs filed a notice of acceptance of a revised offer of judgment from Serenity Spa. Under the terms of the Revised Offer of Judgment, Serenity Spa would allow judgment to be entered against it in favor of the named Plaintiffs, Benavides and Lin, in a total amount of $20,000, inclusive of attorneys' fees and costs, to be paid in four installments of $5,000. Also on April 13, 2018, the parties filed a joint letter requesting (1) decertification of the Rule 23 class, (2) approval of the parties' settlement (as embodied by the Revised Offer of Judgment), (3) dismissal of Dai from this case due to her ongoing bankruptcy proceeding, and (4) entry of judgment, based on the terms of the Revised Offer of Judgment, against Serenity Spa, and dismissal of this case with prejudice. Judge Cott finds that the parties have provided sufficiently compelling reasons to justify decertification of the Rule 23 class. The notice of the Rule 23 certification could be reliably sent at the present time to, at best, 34 potential class members, which falls below the "numerosity" threshold in Rule 23 class actions. Furthermore, the parties are still in an early phase of litigating the Rule 23 class action claims. In addition, the potential class members are unlikely to be prejudiced by decertification because their class claims have been tolled through the date of the Opinion and Order. For these reasons, the Rule 23 class is decertified. Having carefully reviewed the parties' joint letter and the proposed settlement terms, the Judge finds that all of the terms of the proposed settlement (including the allocation of attorneys' fees and costs) appear to be fair and reasonable under the totality of the circumstances. Accordingly, the settlement is approved. Dai has filed for Chapter 13 bankruptcy, and the Plaintiffs' case against her is currently stayed. The parties are in agreement, and have jointly requested, that Dai should be dismissed from the case. Given that Dai's participation is not necessary for the parties to effectuate their settlement, their request is granted. In light of the approval of the settlement between the Plaintiffs and Serenity Spa, as well as the dismissal of Dai, the Judge granted the parties' request that judgment be entered against Serenity Spa in accordance with the terms of the Revised Offer of Judgment and that the case be dismissed with prejudice. In sum, for the foregoing reasons, (1) the Rule 23 class is decertified; (2) the parties' settlement, as embodied by the Revised Offer of Judgment and its acceptance, is approved; (3) Dai is dismissed from the case; and (4) the Clerk is directed to enter judgment in favor of the Plaintiffs and against Serenity Spa in accordance with the terms of the Revised Offer of Judgment and dismiss the case with prejudice. A full-text copy of the Court's May 25, 2018 Opinion and Order is available at https://is.gd/WLIROK from Leagle.com. Gloria Benavides, on behalf of herself, FLSA Collective Plaintiffs and the Class & Fanny Yin-Fang Lin, on behalf of herself, FLSA Collective Plaintiffs and the Class, Plaintiffs, represented by Anne Melissa Seelig -- info@leelitigation.com -- Lee Litigation Group, PLLC, Taimur Alamgir, Lee Litigation Group, PLLC & C.K. Lee, Lee Litigation Group, PLLC. Serenity Spa NY Inc. & Yu Qun Dai, Defendants, represented by Lawrence Figowe Morrison -- info@m-t-law.com -- Morris Tenebaum, PLLC & Marisol Santos -- msantos@faillacelaw.com -- Michael Faillace & Associates, P.C.. SOUTHEASTERN PENNSYLVANIA: Faces Class Action Over Reimbursements ----------------------------------------------------------------- John Petrick, writing for Law360, reports that a doctor has filed a class action in Pennsylvania state court alleging that the self-insured Southeastern Pennsylvania Transportation Authority has a tradition of reimbursing medical benefits to doctors months and years late and without interest for treating patients injured in auto crashes involving the transit authority. Dr. Frederick Hawkin Jr. notes in the suit filed on June 27 in the Philadelphia County Court of Common Pleas that a similar class action was filed back in 1999 that eventually settled, but alleges SEPTA didn't make good on its promise. [GN] SQUAW VALLEY: Court Extends Time to Respond to "Pinto" FAC ---------------------------------------------------------- The United States District Court for the Eastern District of California granted Parties' Stipulation extending the deadline for defendant Squaw Valley Resort, LLC, to file a responsive pleading to Plaintiff's First Amended Complaint in the case captioned JOAO GABRIEL PINTO, an individual, on behalf of himself and all others similarly situated, Plaintiff, v. SQUAW VALLEY RESORT, LLC, a Delaware corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 2:17-cv-02281-MCE-CKD (E.D. Cal.). The Plaintiff filed this action against defendant Squaw Valley and defendant KSL Resorts alleging the following eight causes of action as class-wide claims, inter alia: (1) Failure to Pay Minimum Wages; (2) Failure to Pay Wages and Overtime Under Labor Code Section 510. Squaw Valley contends that the Plaintiff entered into an arbitration agreement that precludes him from pursuing claims in this forum. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ya5suzny from Leagle.com. Joao Gabriel Pinto, Plaintiff, represented by Alvin B. Lindsay -- david@yeremianlaw.com -- David Yeremian & Associates, Inc. & David Harmik Yeremian -- david@yeremianlaw.com -- David Yeremian & Associates, Inc. Squaw Valley Resort, LLC, Defendant, represented by Alexander M. Chemers -- Alexander.chemers@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Lori A. Bowman -- lori.bowman@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC (LA) & Kelsey A. Webber -- Kelsey.webber@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, PC. STATE FARM: Court Dismisses Amended MAO-MSO Suit ------------------------------------------------ In the case, MAO-MSO RECOVERY II, LLC, MSP RECOVERY LLC, MSPA CLAIMS 1, LLC, and MSP RECOVERY CLAIMS, SERIES, LLC, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Case No. 1:17-cv-01541-JBM-JEH (C.D. Ill.), Judge Joe Billy McDade of the U.S. District Court for the Central District of Illinois, Peoria Division, granted the Defendant's Motion to Dismiss the Amended Complaint. The putative class action is one of several filed around the country by the Plaintiffs. The Plaintiffs also have a separate but related case pending before the Court -- another putative class action with slightly different facts, but consisting of virtually identical allegations under the law, MAO-MSO Recovery II, LLC et al. v. State Farm Mutual Automobile Ins. Co., No. 17- cv-1537 (C.D. Ill. Feb. 23. 2017). The lawsuit arises under the Medicare Secondary Payer ("MSP") provisions of the Medicare Act. Part C of the Medicare Act allows Medicare enrollees to obtain their Medicare benefits through private insurers, called Medicare Advantage Organizations ("MAOs"), instead of receiving direct benefits from the government under Parts A and B. The MSP makes Medicare insurance secondary to any 'primary plan' obligated to pay a Medicare recipient's medical expenses, including a third-party tortfeasor's automobile insurance. Section 1395y(b)(3)(A) of the MSP provisions provides for a private cause of action against primary payers who do not reimburse secondary payers for conditional payments made to Medicare beneficiaries. Despite originally being filed on March 28, 2017, the case has not advanced passed preliminary stages because the parties have litigated the issue of Article-III standing for months. The matter is before the Court on the Defendant's Motion to Dismiss the Amended Complaint. Judge McDade finds that the Plaintiffs are not MAOs. The Plaintiffs provided the Court with a document titled "Assignment," which is dated June 12, 2017, wherein Plaintiff MSP Recovery, LLC assigns all of its rights from HFAP to Series 16- 05-456 LLC, a series of MSP Recovery Claims, Series LLC. As such, he says there is no question that Plaintiffs MAO-MSO Recovery II and MSPA Claims 1 have no bearing on the issue of Article-III standing, as those entities are not even mentioned in the relevant documentation in the case. Furthermore, any rights that Plaintiff MSP Recovery, LLC obtained from HFAP by way of the Recovery Agreement were later assigned to a series LLC of Plaintiff MSP Recovery Claims, Series, LLC. Thus, MSP Recovery Claims, Series, LLC is the only Plaintiff that has any alleged "rights" to vindicate to support standing in the case. The Judge also finds that the Amended Complaint makes clear that any reference to "Health First" refers to HFAP. No matter how the Plaintiffs twist it, their Amended Complaint is not accurate. HFAP did not pay the representative beneficiary's medical expenses; HFHP did. Therefore, if anybody is to be reimbursed under the MSP provisions, it is HFHP, not HFAP. It is not a "minor" clarification to say that an entirely separate corporation incurred injury. The crux of the case surrounds State Farm's alleged failure to reimburse MAOs for conditional payments they made, and the Plaintiffs' case rises and falls with exactly what MAO assigned rights to them. The aforementioned analysis leads to the inevitable result that HFAP had no rights to assign to the Plaintiffs in the first place. Therefore, the Judge holds that because HFAP has not been assigned any rights from HFHP to pursue claims under Section 1395y(b)(3)(A), Plaintiff MSP Recovery Claims, Series, LLC also has no rights to pursue claims under Section 1395y(b)(3)(A). The Plaintiffs therefore lack Article-III standing. Finally, because the Plaintiffs' Amended Complaint was knowingly inaccurate, there is absolutely no basis in law to support the argument that HFAP is a MAO; and the Plaintiffs only attempted to "clarify" their allegations after being outed by the Defendant that the Amended Complaint was inaccurate, the Judge will order the Plaintiffs to show cause within 14 days of the Order why they should not be sanctioned under Rule 11. For these reasons, Judge McDade granted State Farm's Motion to Dismiss for lack of subject matter jurisdiction. He dismissed the case with prejudice. He denied as moot the Defendant's remaining Motion to Strike or Deny Class Allegations and Motion for Leave to File. The Judge directed the Plaintiffs to show cause within seven days of the Order why they should not be sanctioned under Rule 11. The Defendant is also allowed seven days to file a memorandum concerning whether it believes sanctions are appropriate in the case. A full-text copy of the Court's May 25, 2018 Order and Opinion is available at https://is.gd/aTteXn from Leagle.com. MSP Recovery, LLC, a Florida entity, MAO-MSO Recovery II, LLC, a Delaware entity & MSPA Claims 1, LLC, a Florida entity, Plaintiffs, represented by Christopher L. Coffin -- ccoffin@pbclawfirm.com -- PENDLEY BAUDIN & COFFIN LLP, pro hac vice, Adam M. Foster -- AFoster@BaumHedlundLaw.com -- BAUM HEDLUND ARISTEI & GOLDMAN, Courtney L. Stidham -- cstidham@pbclawfirm.com -- PENDLEY BAUDIN & COFFIN LLP, Pedram Esfandiary -- pesfandiary@baumhedlundlaw.com -- Baum, Hedlund, Aristei & Goldman, PC, Robert Brent Wisner -- rbwisner@baumhedlundlaw.com -- BAUM HEDLUND ARISTEI & GOLDMAN & David M. Hundley -- dhundley@pbclawfirm.com -- HUNDLEY LAW GROUP, P.C. MSP Recovery Claims, Series, LLC, a Delaware entity, Plaintiff, represented by Christopher L. Coffin, PENDLEY BAUDIN & COFFIN LLP & David M. Hundley, HUNDLEY LAW GROUP, P.C. State Farm Mutual Automobile Insurance Company, an Illinois Company, Defendant, represented by Benjamine Reid -- breid@carltonfields.com -- CARLTON FIELDS JORDEN BURT P.A., James P. Gaughan -- jgaughan@rshc-law.com -- RILEY SAFER HOLMES & CANCILA LLP, Joseph Anthony Cancila, Jr. -- jcancila@rshc-law.com -- RILEY SAFER HOLMES & CANCILA LLP, Patrick D. Cloud -- pcloud@heylroyster.com -- HEYL ROYSTER VOELKER & ALLEN & David Matthew Allen -- mallen@carltonfields.com -- CARLTON FIELDS JORDEN BURT P.A.. TORRANCE REFINING: Faces Suit Over Water Contamination ------------------------------------------------------ Nick Green, writing for Daily Breeze, reports that the Torrance refinery has allowed contaminated groundwater beneath surrounding residential properties to "store toxic chemicals" emanating from the plant for years, a hydrologist and Cal State Fullerton professor testified in a Los Angeles Superior Court lawsuit. The legal action, first filed in early 2017, seeks to have the refinery declared a public nuisance, citing fires, leaks and other issues at the plant since a February 2015 explosion. In June the refinery was fined $150,000 by the state for not meeting a timetable for removing hazardous waste from the site. Filed on behalf of a trio of Torrance residents, the plaintiff's lawyers are seeking class-action status for the lawsuit. PBF Energy, which owns the plant under the name of its subsidiary Torrance Refining Co., declined comment Fri, June 29. "As a matter of long-standing policy, Torrance Refining Company does not comment on any active litigation," spokeswoman Gesuina Paras emailed. PBF inherited the issue from ExxonMobil when it purchased the plant in July 2016. In a court filing in April, Professor Richard Layton, a paid expert witness for the plaintiffs, said the water is contaminated by levels of methyl tert-butyl ether or MTBE that are 40 times higher than the maximum contaminant level allowed by the state. MTBE was a gasoline additive used to improve vehicle performance that was banned in California in 2002 and also phased out nationwide. Layton said the groundwater is also contaminated by high levels of benzene, which is used in gasoline, that is more than 2,000 times the state's maximum contaminant level. One plume of contaminated water extends 4,000 feet beyond the refinery's southern property line, meaning homes along Del Amo Boulevard next to the refinery are at risk for indoor air contamination as vapors percolate up through the soil, Layton said. "The contamination extends beyond the property boundary of the Torrance Refinery, meaning in effect, that the Torrance Refinery is using the surrounding properties as storage for toxic materials originating from the refinery," Layton testified in the court filing. The decades-old contamination has long been under a clean-up and abatement order from the Los Angeles Regional Water Quality Control Board and is on-going. Layton reviewed years of accumulated data to reach his conclusions. About a dozen homes near the intersection of Del Amo Boulevard and Van Ness Avenue were evacuated, purchased by ExxonMobil and razed in 2008 after air sampling found high levels of benzene inside homes. ExxonMobil installed a soil-vapor extraction system in the southeastern corner of the refinery in an effort to reduce those high levels of residential air contamination, Layton said. "No additional indoor air sampling in the neighboring properties has taken place since this time to evaluate the potential impacts from the refinery activities," he said. "This would be prudent based upon the previous sampling results and time frame (of) over 10 years. Such an analysis should include whether or not the plume has migrated further into the neighborhood and what impacts if any the remediation system has had on the contamination plume." Air samples taken by a consulting firm paid for by the plaintiff's legal team showed higher levels of chemical contamination in some homes compared to ambient levels outside, the lawsuit said. For example, testing at one home on Del Amo Boulevard found levels of benzene and other chemicals were between 100 percent and 631 percent higher compared to ambient air levels, testified James Clark, principal toxicologist at a Los Angeles environmental consulting firm and another paid expert consultant for the plaintiffs. The levels of chemicals found inside homes "will likely present significant health risks to the occupants," he testified. Those long-term health effects likely include "respiratory diseases and cancer," Clark said, citing EPA data. About 26,000-acre-feet of contaminated groundwater has been extracted over the years, Clark testified after reviewing regional water quality control board data.[GN] SUN LIFE: Court Denies Bid to Amend "Robertson" RICO Suit --------------------------------------------------------- In the case, LEVI E. ROBERTSON, on behalf of himself and all other similarly situated, v. SUN LIFE FINANCIAL, ET AL., Civil Action No. 17-2148 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana denied both Robertson's motion to amend his complaint and to set a class certification schedule. The case arises out of allegedly fraudulent withdrawals from Robertson's annuity account with Defendant Sun Life Assurance Co. of Canada. On Oct. 9, 2008, Robertson filed suit in state court against Sun Life, Matthew Pizzolato, and other Defendants. In his original petition, Robertson alleged that Pizzolato forged a check for $99,999.99 in Robertson's name, and Sun Life negligently permitted a withdrawal in this amount from Robertson's annuity account without contacting him to verify the transaction. Robertson's negligence claims against Sun Life were later dismissed with prejudice in state court. In March 2012, Robertson filed a third amended petition in state court asserting a breach of contract claim against Sun Life. He alleges that he entered into a ten-year annuity contract with Sun Life in July 2005, and that Sun Life breached this contract by failing to secure his investment through the use of normal industry standards. On Feb. 27, 2017, Robertson filed a fourth amended petition asserting state and federal racketeering claims against Sun Life, and requesting that the case proceed as a class action. On March 15, 2017, Sun Life removed the matter to federal court on the basis of federal question jurisdiction under 28 U.S.C. Section 1331 and class action jurisdiction under 28 U.S.C. Section 1332(d). On Sept. 22, 2017, the Court dismissed with prejudice Robertson's state and federal racketeering claims as time-barred. On Jan. 22, 2018, the Court denied the Plaintiff's motion to remand to state court. Robertson now moves to amend his complaint. He requests leave to file a fifth amended complaint to include additional class action allegations. He also moves to establish a class certification schedule. Sun Life opposes both motions. Judge Vance finds that she considers multiple factors before granting leave to amend, including undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. These factors weigh heavily against granting leave to amend. Robertson seeks to add new class action allegations nearly 10 years after filing suit, and six years after first asserting a breach of contract claim in his third amended petition. Robertson fails to explain this prolonged delay. Moreover, the deadline to file amended pleadings set out in the Court's scheduling order was Dec. 4, 2017. The Plaintiff has not shown good cause for failing to meet this deadline. Further, Robertson has already amended his complaint four times, and thus had numerous opportunities to assert a breach of contract claim on a class basis. Permitting him to bring new class claims at this stage of the litigation will unduly prejudice Sun Life. Lastly, neither Robertson's complaint, nor his proposed allegations, indicate that the class is so numerous that joinder of all members is impracticable. Because the factors set out in Foman v. Davis strongly counsel against permitting amendment, the Judge will deny leave to amend. Because Robertson fails to identify any class claim remaining in the case, the Judge perceives no good cause to extend the class certification deadline. Moreover, Robertson fails to explain his delay in timely requesting an extension of the deadline to move for class certification. Robertson notes that Sun Life previously agreed to set a class certification schedule. But the parties may not extend a deadline imposed by the local rules without permission of the Court. Accordingly, he will deny Robertson's motion to set a class certification schedule. For the foregoing reasons, Judge Vance denied the motion for leave to amend and the motion to set a class certification schedule. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/fyy92u from Leagle.com. Levi E. Robertson, on behalf of himself and all other similarly situated, Plaintiff, represented by Eric R. Nowak -- info@hnjustice.com -- Harrell & Nowak, LLC & Byard Edwards, Jr., Edwards & Knight, LLC. Sun Life Assurance Company of Canada, Defendant, represented by Kelly Juneau Rookard -- kjuneau@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Delaware Life Insurance Company, formerly known as Sun Life Assurance Company of Canada U.S., Defendant, represented by Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Andrea J. Robinson -- ANDREA.ROBINSON@WILMERHALE.COM -- Wilmer, Cutler, Pickering, Hale & Dorr, LLP, pro hac vice, Ian David Coghill -- IAN.COGHILL@WILMERHALE.COM -- Wilmer, Cutler, Pickering, Hale & Dorr, LLP, pro hac vice & Kelly Juneau Rookard, Irwin Fritchie Urquhart & Moore, LLC. Delaware Life Insurance Company, formerly known as un Life Assurance Company of Canada U.S., Defendant, represented by Tim J. Perla -- TIMOTHY.PERLA@WILMERHALE.COM -- WilmerHale, pro hac vice. SUPER MICRO: Robbins Geller to Lead in Securities Fraud Suit ------------------------------------------------------------ In the cases, LOGAN HESSEFORT, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SUPER MICRO COMPUTER, INC., et al., Defendants. UNITED UNION OF ROOFERS, WATERPROOFERS & ALLIED WORKERS LOCAL UNION NO. 8 WBPA FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SUPER MICRO COMPUTER, INC., et al., Defendants, Case Nos. 18-cv-00838- JST, 3:18-cv-00850-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California (i) granted New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund ("NYHTC")'s motion for appointment as the Lead Plaintiff and approval of the selected counsel for a securities class action; and (ii) (ii) consolidated these two related actions. These are federal securities class actions on behalf of persons who purchased or otherwise acquired shares of Defendant Super Micro's securities between Aug. 5, 2016 and Jan. 30, 2018. Super Micro designs, develops, manufactures, and sells servers, motherboards and other computer parts and accessories. The complaints allege that Super Micro made false and misleading statements and failed to disclose adverse information regarding the company. Originally, four parties filed motions seeking appointment as the Lead Plaintiff and approval of their selection of counsel. Two of the parties subsequently withdrew or chose not to oppose, leaving NYHTC and the Oklahoma Police Pension and Retirement System as the remaining competing Plaintiffs. In these securities class actions, the Court now considers motions for consolidation and for appointment as the Lead Plaintiff and approval of selected counsel for a securities class action. NYHTC filed one motion and Oklahoma Pension filed the second. Judge Tigar finds that these related cases address nearly identical factual issues and legal claims. Given this factual and legal overlap, judicial convenience and a just resolution of the parties' claims would be best served through consolidation. He will grant the motions for consolidation. The Judge concludes that, at least at this preliminary stage, NYHTC has demonstrated adequacy and typicality. Even as compared to the few cases which have concluded that post-disclosure purchases defeated typicality, NYHTC purchased a much smaller percentage -- less than 5% of its total shares -- after the disclosure than did other Plaintiffs who were disqualified. Finally, so long as the Lead Plaintiff has made a reasonable choice of counsel, the district court should generally defer to that choice. NYHTC selected Robbins Geller Rudman & Dowd, LLP to serve as lead counsel, and this designation will be approved. The Judge finds that Robbins Geller has experience as lead counsel in securities class action lawsuits, including lawsuits in the district. Hence, he will approve the Lead Plaintiff's choice of counsel. Judge Tigar granted the motions to consolidate the cases. He also granted NYHTC's motion for appointment as the Lead Plaintiff and approval of selection of the counsel. He denied the Oklahoma Pension's motion for appointment as the Lead Plaintiff and approval of selection of counsel. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/jVCyu3 from Leagle.com. Logan Hessefort, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice. New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund, Movant, represented by Tricia Lynn McCormick -- TriciaM@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Daniel Jacob Pfefferbaum -- dpfefferbaum@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Bristol County Retirement System, Movant, represented by K.C. Maxwell -- kmaxwell@bgrfirm.com -- Maxwell Law PC. Qiong Shen, Movant, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. Oklahoma Police Pension and Retirement System, Movant, represented by Richard Martin Heimann -- rheimann@lchb.com -- Lieff Cabraser Heimann & Bernstein, Katherine Collinge Lubin -- klubin@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP & Lester Rene Hooker -- lhooker@saxenawhite.com -- Saxena White P.A.. TEZOS FOUNDATION: Launches Platform Amid ICO Class Actions ---------------------------------------------------------- CCN reports that in an official blog post, the Tezos Foundation announced that the betanet is live. Tezos is a smart contract platform which raised $232 million in its initial coin offering (ICO) in July 2017, making it the largest token sale at that time. The platform boasts an on-chain governance model and formal verification for smart contracts. After a year of active development, several class action lawsuits, and multiple delays Tezos has finally launched successfully. "The future of Tezos rests in the hands of its community. This moment marks an inflection point for the project, and we are excited to support community developers, scientists, validators ("bakers"), and enthusiasts from all over the world as they drive the success of this innovative, decentralized network." In an exclusive statement to CCN, Ryan Jesperson, president of the Tezos Foundation stated: "From the outset, the code base underpinning the Tezos protocol has been engineered with security in mind. Although no system can be completely secure, every system can be continuously improved towards that goal -- fixing bugs, maintaining and adjusting the code base, and integrating additional functionality are several actions that may be taken while the betanet is live." "Unscheduled downtime and/or hard forks may occur as upgrades are implemented. It is anticipated that all transactions that take place on the betanet will persist into the mainnet, which will launch after the betanet has sufficiently matured," he further added. The foundation has also announced that they would be sponsoring HackerOne, a San Francisco-based cybersecurity company, to manage their bug bounty program. They also commissioned independent security audit and code review headed by Least Authority and security researchers at Inria respectively. On-chain Governance Tezos has a built-in on-chain governance model where users can propose protocol upgrades, and if the network reaches a consensus to implement it, changes are automatically made without a need for any manual intervention. The proposer is compensated with the network tokens. Tezos hopes that this mechanism would incentivize everyone to work on improving the network and also help to decentralize the project to the maximum extent. In an email sent out to investors, the Tezos Foundation stated that although they had considered retaining a veto power with regards to network proposal for a year, they have since decided not to. "Adopting amendments to the protocol is a central element of Tezos and no single entity should have the power to alter decisions agreed upon by community members. The option of a temporary veto had been considered solely as a security measure, but the Foundation is committed to decentralization from day one. We think that this decision reflects that priority," Mr. Jesperson stated. Baking and Wallets The Tezos Protocol utilizes a Delegated Proof-of-Stake (DPoS) consensus algorithm. Tezos refers to its network validators as "bakers" and users can get involved in the block validation process by staking 10,000 tezzies. Users are encouraged to participate in the network, even if they do not own 10,000, by delegating their stake to a baking service. The currency has an inflationary supply model, with an annual increase of 5.5% that is paid out to bakers. The Tezos Foundation has issued a grant to Cryptonomic, a New York City-based company, to build an open source wallet. Several open source projects such as tezbox are also being worked on. When asked about the future role of the project's non-profit foundation, Mr. Jesperson stated: "The role of the Foundation is to deploy resources that support the advancement of the Tezos protocol. After launch, the Foundation intends to focus primarily on grantmaking -- providing support to community members such as educational and research institutions, open-source developers, non-profit organizations, and businesses from all over the world developing technologies and applications that relate to Tezos and other open-source projects." Tezos is currently only trading on HitBTC and Gate.io IOU markets. There haven't been any announcements pertaining to exchange listing efforts so far. [GN] TONOGA INC: Begins Probe Into PFOA Contamination Amid Suit ---------------------------------------------------------- Lauren Stanforth, writing for timesunion, reports that Taconic plastics plant is beginning an in-depth investigation into the extent of PFOA contamination around its Route 22 plant -- more than two years after the company first alerted the state to renewed concerns about contamination around its property. The company, whose official name is Tonoga Inc., will begin doing soil borings and installing groundwater wells to determine the true extent of contamination of PFOA, or perfluorooctanoic acid, a chemical used to make heat-resistant coatings. In Jan. 2016, Taconic reached out to the state Department of Environmental Conservation and Health Department about previous PFOA contamination at its manufacturing facility in the wake of revelations about the nearby Village of Hoosick Falls public water supply being contaminated with PFOA since at least 2014. The contamination that came from the Saint-Gobain Performance Plastics plant in Hoosick Falls, and subsequently the Taconic plant, lead to a massive outcry about how PFOA might impact residents' health in the years to come. Taconic responded by signing a consent order with the state in November 2016 that required a filtration system be placed on Petersburgh's small municipal water plant, as well as testing and filtration systems installed for private wells in the area. But as part of the consent order, Taconic was also required to investigate how much of the surrounding environs are contaminated, and if there is a way to clean it up beyond just providing water filtration systems to residents. The state DEC announced that the investigation's findings will be released in a report sometime in 2019, followed by a study suggesting ways to clean up the contamination. However, "the information collected during the site investigation may also support the conclusion that no action, or no further action, is needed to address site-related contamination," according to the DEC's investigation update. Taconic had found PFOA contamination at its plant more than a decade ago. But the state said at the time PFOA was not a regulated contaminant. In 2005, the company installed a carbon- filter system on its plant wells along the Little Hoosic River after it said low levels of the chemical were discovered. Alternative water treatment systems were also installed for nearby residents. Taconic's plant makes specialty products including silicone- coated fabrics and tapes. The site has made polytetrafluoroethylene (PTFE) coated fabrics there since about 1961. PTFE previously contained PFOA. A class-action lawsuit has been filed by property owners and water users in Petersburgh against Taconic. [GN] UBER TECHNOLOGIES: Stinson Leonard Attorney Discusses Ruling ------------------------------------------------------------ Liz Kramer, Esq. -- liz.kramer@stinson.com -- of Stinson Leonard Street, in an article for JD Supra, wrote that almost a year ago, the Second Circuit praised the clean, readable design of Uber's app. Because the reference to Uber's terms of service was not cluttered and hyperlinked to the actual terms, the Second Circuit held Uber could enforce its arbitration agreement and the class action waiver within it. But, just recently, the First Circuit disagreed. In Cullinane v. Uber Technologies, Inc., 2018 WL 3099388 (1st Cir. June 25, 2018), it refused to enforce an arbitration clause in Uber's terms of service and allowed a putative class action to proceed. The First Circuit found customers were not reasonably notified of Uber's terms and conditions, because the hyperlink to those terms was not conspicuous. The Cullinane opinion was applying Massachusetts law on contract formation. Massachusetts has not specifically addressed online agreements (or smart phone apps), but in analogous contexts has held that forum selection clauses should be enforced if they are "reasonably communicated and accepted." In particular, there must be "reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent." The Meyer opinion was applying California law on contract formation. But the test was identical, because both states had borrowed it from a Second Circuit decision about Netscape. So, the state law at issue does not explain the different outcome. The one thing that might explain the different outcome is that the two federal appellate courts appear to have analyzed slightly different versions of Uber's app. In Cullinane, the lead plaintiffs had signed up between Dec. 31, 2012 and January 10, 2014. (The court reproduced the actual screen shots early in its opinion.) In Meyer, the lead plaintiff had signed up in October, 2014, and Uber had altered the design of its sign-up screens. (There, the screen shot is an addendum to its opinion.) For example, the background was now white in late 2014, instead of black, and the "Terms of Service & Privacy Policy" were in teal, instead of white text. And, those are some of the aspects of the design that the First Circuit pointed to as critical. It noted that hyperlinked terms are usually in blue text and underlined, but that the Cullinane plaintiffs' were faced with hyperlinked "Terms of Service" that were not blue or underlined. Instead, they were in white text in a gray box, no different than other non-hyperlinked text like "scan your card" on the same screen. In addition, the First Circuit found the text stating "by creating an Uber account you agree to the [Terms]" was insufficiently conspicuous for similar reasons. For those reasons, the Cullinane opinion found "the Plaintiffs were not reasonably notified of the terms of the Agreement, they did not provide their unambiguous assent to those terms." This is another example of how unsettled some aspects of arbitration law are (and maybe consumer contracting in general). In Meyer, the district court had denied Uber's motion to compel arbitration, and the appellate court reversed, granting the motion to compel arbitration. And in Cullinane, the district court had granted Uber's motion to compel arbitration, and the appellate court reversed, denying the motion to compel arbitration. Those four courts were applying the exact same legal standard of conspicuousness, and reached opposite conclusions in the span of less than a year. The lesson here is two-fold. First, there is no clear standard for when terms on a website (or on a receipt, or in a box) are sufficiently conspicuous, so judges are left to their own devices (pun intended) to answer that question. Second, unless an on- line provider wants judges -- who are likely untrained in the psychology of consumer design related to five inch screens (and may not even have any apps) -- to keep on getting to whatever result they please, the only solution is to require a consumer to actually click "I agree" after viewing a screen of the terms and conditions. Unless, of course, SCOTUS grants certiorari of this new "circuit split" and issues guidance. [GN] UNITED STATES: Faces Class Action Over ACA Program -------------------------------------------------- Guy Boulton, Milwaukee Journal Sentinel, reports that Common Ground Healthcare Cooperative expected to receive $45 million in 2015 through a program in the Affordable Care Act to help offset the risk health insurers faced in a new market. The Wisconsin cooperative instead received $5.7 million. Common Ground Healthcare, based in Brookfield, now is among more than 100 health insurers who contend that the federal government owes them billions of dollars for reneging on commitments made as part of the Affordable Care Act. "Where else do you enter into an agreement with another entity and then break that agreement midstream and not have any recourse?" said Cathy Mahaffey, chief executive officer of Common Ground Healthcare. "And this has happened to us time and time again with the Affordable Care Act." The cooperative is the lead plaintiff in a class-action lawsuit involving the payments. The lawsuit -- one of several stemming from the issue -- includes 116 health insurers. The plaintiffs include affiliates of some of the country's largest insurers, such as UnitedHealthcare, as well as Wisconsin insurers, such as Dean Health Plan, Security Health Plan and Network Health Plan. The steps taken by the federal government -- in one case, by Congress; in another, by the Trump administration -- after the Affordable Care Act was passed partially explain why health insurers abandoned the market for selling health insurance to individuals and families who don't receive health benefits through an employer. They also partially explain why premiums for those health plans have soared and made health insurance unaffordable for most middle-class people who are not eligible for federal subsidies through the law. The health insurers were dealt a setback this month when an appellate court overturned a ruling in favor of a health insurer who had filed a similar lawsuit. The insurer is almost certain to appeal the ruling. Ongoing litigation The lawsuits are just one example of how the battles over the Affordable Care Act continue to be fought in the courts more than eight years after it became law. Wisconsin is among the 20 states, for instance, that have filed a lawsuit in Texas to have the law declared unconstitutional. The lawsuits filed by Common Ground Healthcare and other health insurers stem from one of the provisions in the Affordable Care Act designed to lessen the initial risk that insurers would take on by selling health plans on the new marketplaces. The law remade the market for health insurance sold to people who don't get coverage through an employer or a government health plan. It barred health insurers from denying coverage if someone had a pre-existing health condition or charging him or her higher rates. It also limited how much premiums could vary based on age. And it prevented insurers from charging women more than men for the same coverage. The changes forced insurers essentially to guess how to price their health plans. The insurers had no experience in insuring people with pre- existing health problems. Nor did they know how many people would sign up for coverage or what their medical bills would be. To lessen the uncertainty and encourage insurers to participate in the new market, the Affordable Care Act set up three programs to help get insurers through the rocky first years until they knew more about the market and how to price their health plans. One of the programs -- known as the risk corridor program -- required the federal government to partially offset insurers' losses by health insurers if the people who bought health plans required more care than projected. The program would run from 2014 through 2016, and the payments would come from two funds for the Medicare program. Health insurers also would be required to pay the federal government a percentage of any profits if their medical claims were less than projected. The first payments were due in 2015. But in December 2014, almost a full year after health insurers had been selling health plans on the marketplaces, Congress passed an appropriations rider that prohibited the federal government from paying out more in the risk corridor program than it collected. The rider also prohibited the federal government from using money from other programs for the payments, Katie Keith, an expert on the Affordable Care Act, wrote in a blog post on the website of Health Affairs, a policy journal. Identical riders were included in appropriations legislation and continuing resolutions for 2016 and 2017. Health insurers incurred $12.6 billion in losses from 2014 through 2016 that were eligible for payments through the risk corridor program, but more than $12 billion of those payments were not paid, according to the lawsuit in which Common Ground Healthcare is the lead plaintiff. The cooperative, for instance, estimates that it is owed more than $100 million in risk corridor payments. "It would have significantly changed our financial picture," said Mahaffey. The key issue in the lawsuit is whether an obligation of the government in a statute later can be eliminated through an appropriations bill, said Stephen Swedlow, a managing partner with Quinn Emanuel Urquhart & Sullivan and the lead attorney in two of the class action lawsuits filed by the health insurers. "What the case will ultimately affirm is that when Congress passes a statute, it can't change its mind through appropriations bills," Mr. Swedlow said. "If the government wants to change the government program, it has to change the government program." Appellate ruling The Court of Appeals for the Federal Circuit in Washington, D.C., by a 2-1 majority, disagreed, overturning a decision by the Court of Federal Claims in favor of an insurer. The court agreed that the provision in the Affordable Care Act obligated the government to make the full risk corridor payments, Keith wrote in a blog on the ruling. But it concluded that the obligation was suspended by the subsequent appropriation riders. The insurer -- Moda Health Plan, which sold plans in Oregon, Alaska and Washington -- can ask for a rehearing by the entire Federal Circuit or appeal to the Supreme Court. "Given the stakes, Moda is likely to persevere, setting up another potential blockbuster Supreme Court ruling on the ACA," Ms. Keith wrote. By then, the makeup of the court will be different with the retirement of Justice Anthony Kennedy. Common Ground Healthcare's lawsuit and another class action lawsuit have been on hold until the appellate court ruled. But the appellate court's ruling could strengthen an additional claim in the lawsuit in which the cooperative is the lead plaintiff. The lawsuit was amended in November to include so-called cost- sharing reduction subsidies that the federal government stopped paying that month. The cost-sharing reduction subsidies reduce deductibles and other out-of-pocket expenses for people with low incomes who buy health plans on the marketplaces set up by the Affordable Care Act. Health insurers are required by law to provide the additional coverage. But the Trump administration stopped making the payments late last year. "It was just money lost," Ms. Mahaffey said. Common Ground Healthcare, which couldn't change its rates, estimates that it is owed $12 million to $13 million in cost- sharing reduction subsidies for last year. "Otherwise, we would have had a break-even year," Ms. Mahaffey said. The cooperative estimates that it could be owed $60 million for this year. Other insurers now have until Aug. 13 to opt-in to the class- action lawsuit for the additional claim. Mr. Swedlow estimates that the claim involving the cost-sharing reduction subsidies could total more than $3 billion. The amount also increases each month. The appellate court's ruling strengthens the lawsuit, Mr. Swedlow said, because Congress never cut off funding for the subsidies in an appropriation bill. "A decision was made simply to stop making the payments," he said. The lawsuits will take years to resolve. But they make clear the challenges that health insurers have faced and how the changes have raised the cost of health plans sold to individuals and families. "It makes participating in this market more risky, because we can never count on what the rules will be, and therefore have to price that into our product," said Marty Anderson, chief marketing officer at Security Health Plan, an affiliate of Marshfield Clinic Health System. The changes that led to the lawsuits -- as well as other changes since the Affordable Care Act -- also have been more than a little frustrating for health insurers. "No one," Ms. Mahaffey said, "does business this way." [GN] UNITED STATES: Class Action Mulled on Behalf of Asylum Seekers -------------------------------------------------------------- Amy Powell, writing for KABC, reports that A mother and daughter separated at the border under the Trump administration's zero tolerance policy have been reunited in Los Angeles. Perla Alemengor de Velasquez and her 12-year old daughter had not seen each other in more than a month, since entering the United States from Guatemala seeking asylum. Attorney Mario Williams said he is planning to file a class- action lawsuit on behalf of many families like theirs to stop the administration from blocking legitimate asylum seekers from entering the United States. "The Trump administration continues to double and triple down on a policy that is blatantly unconstitutional," Mr. Williams said. [GN] UNITED STATES: FEMA Ordered to Extend Temporary Housing Vouchers ---------------------------------------------------------------- Sarah Betancourt and Kelli Kennedy, writing for Associated Press, report that a judge ordered federal emergency officials to extend vouchers for temporary hotel housing for nearly 1,700 Puerto Rican hurricane evacuees, saying ending the program could cause irreparable harm. The June 30 decision came shortly after civil rights group LatinoJustice PRLDEF filed a lawsuit seeking relief for the Puerto Ricans, whose federal housing assistance vouchers were set to expire at midnight Sunday, July 1, meaning the evacuees could have been evicted from the hotels. The order says the agency cannot end its Transitional Sheltering Assistance program until at least midnight Tuesday, July 3. The organization is pushing to let families stay for six more months. U.S. District Judge Leo Sorokin of Massachusetts wrote that ending the program would drain other public resources. He also said the evidence showed problems with the Federal Emergency Management Agency's efforts to notify and provide transitional help for the hurricane refugees. "The irreparable harm to the plaintiffs is obvious and overwhelming; tomorrow morning they will be evicted and homeless since by definition each plaintiff's home was rendered uninhabitable by the hurricane in Puerto Rico," he wrote. Eight plaintiffs filed a class-action lawsuit alleging unlawful action by FEMA in Massachusetts, which has the highest number of evacuee families seeking federal help after Florida and Puerto Rico. Many of the plaintiffs tell stories of wiped out residences on the island, and ongoing medical conditions. Forty-eight-year-old Denise Nieves resides in a hotel under the TSA program in West Springfield, Massachusetts, with her son. Her home in Toa Baja, Puerto Rico was flooded and is uninhabitable. Her son suffers from neurological dysfunctions while she has pulmonary hypertension. She has not been able to find permanent housing. The complaint says "they will be left homeless" in the event of eviction from the hotel. FEMA declined to comment on the lawsuit, but the Orlando Sentinel reports the agency confirmed it was working to notify hotels to extend the aid until July 5 to comply with the order. A spokeswoman also said the agency was extending transportation aid until August 30 to cover travel costs for families who wish to return to the island. Keith Turi, a FEMA administrator for the program, said in a video news release that the agency is working with state and local officials and volunteer organizations to find assistance for the evacuees and will help pay for a flight home. Craig J. de Recat -- cderecat@manatt.com -- is a partner with Manatt, Phelps & Phillips, the law firm working pro bono with LatinoJustice on the suit. He said evacuees had not been informed properly of the end of the program, with many finding out about the news from watching television. He said a hearing was planned for Monday, July 2, to see if the restraining order should be extended. The Puerto Ricans arrived after last year's Hurricane Maria, a Category 4 storm that devastated the U.S. island. It caused more than $100 billion in damage when it hit Puerto Rico on Sept. 20, and the island is still struggling to recover. Tens of thousands of businesses closed after people fled. Florida Democratic Sen. Bill Nelson said on June 30 that FEMA could extend the program under current law. He said a similar extension occurred more than a decade ago after Hurricane Katrina caused thousands from Louisiana to flee to Texas. Nelson and Democratic members of the Florida Legislature said officials have told them the island remains too devastated to take back evacuees who remain on the mainland. There are few jobs, they said. At a Super 8 in Orlando, there were up to 33 families staying at the motel in mid-May. One of its occupants, 49-year-old Lizbeth Cruz, told the Orlando Sentinel that she's not going back to Puerto Rico, saying she doesn't trust the government to deal with another disaster. She carries around a small notebook filled with pages of hand-written addresses in nearby counties with leasing office phone numbers, price ranges and annotations: Call back. Visit in person. Not available. [GN] UNITED STATES: FEMA to Continue Post-Hurricane Housing ------------------------------------------------------ Christine Stuart, writing for Courthouse News Service, reported that on the verge of forcing thousands of Puerto Ricans into homelessness, the Federal Emergency Management Agency said it will follow court orders to continue post-hurricane housing through the U.S. Independence Day. FEMA has been providing the housing funds through the Transitional Shelter Assistance program since Hurricane Maria hit the Caribbean island on Sept. 20, 2017. Though the agency has twice renewed the program, its refusal to issue another extension prompted a class led by Alian Asencio to file a federal class action on June 30 -- the date the program was set to expire. Filing suit in the District of Massachusetts, Mr. Asencio and the other plaintiffs are represented by the Los Angeles law firm Manatt, Phelps and Phillips; the Hector E. Pineiro Law Offices of Worcester, Massachusetts; and LatinaJustice PRLDEF in New York. Shortly after the suit was filed, U.S. District Judge Timothy Hillman noted that "irreparable harm to the plaintiffs is obvious and overwhelming." "Tomorrow morning they will be evicted and homeless since by definition each plaintiffs home was rendered uninhabitable by the hurricane in Puerto Rico, a determination previously made by the defendants," a June 30 docket entry from Hillman states. "The public interest on balance favors the plaintiffs both in terms of their personal interests and considering the specter of many sick individuals without homes of their own being rendered homeless with the resulting drain on other public resources in addition to the possible human consequences." Though the judge conceded that the record is limited at this point, he said the pleadings are enough to make FEMA continue paying hotel bills for the class "until checkout time on July 4, 2018." Judge Hillman also held a telephone hearing with the attorneys on July 2, 2018, at 12:45 p.m. Reacting to the ruling on July 1, FEMA declined to comment beyond saying that it would notify hotels about the extension. The class action covers all Hurricane Maria evacuees, many of whom fled to New York, Florida and Massachusetts. Though FEMA has promoted a program that the travel by evacuees back to the island, Manatt Phelps attorney Craig J. de Recat -- cderecat@manatt.com -- noted it would be a one-way ticket to nowhere. "Their homes were destroyed," Mr. de Recat said in an interview. "With nowhere to go," Mr. de Recat added, "they're going to become homeless, and create a different crisis." In their June 30 suit, the plaintiffs argue the federal government "should be compelled to continue [temporary shelter assistance] until FEMA provides eligible evacuees sufficient Temporary Housing Assistance and implements an adequate replacement solution, or until plaintiffs and class members have each been relocated into alternate housing." Recalling how FEMA worked with the Department of Housing and Urban Development after Hurricanes Katrina and Sandy to create the Disaster Housing Assistance Program (DHAP), the class alleges that abruptly ending the program here is arbitrary. "FEMA's stated purpose for terminating this support for the class members is that the agency does not think DHAP is needed," the complaint states. "This is contrary to the stark facts and the reality faced by the Puerto Rican victims of Hurricane Maria currently relying on FEMA assistance to survive and avoid homelessness. The stated purpose of terminating the program is not borne out by the facts, and is pretext for other unstated and ulterior purposes." Through the declaratory judgment action the plaintiffs seek to retain their shelter and win additional assistance under the Stafford Act. They are also seeking access to more long-term shelter options. [GN] UNITED STATES: Sued in Calif. for Detaining Immigrant Children -------------------------------------------------------------- Graham Kates and Julia Dahl, writing for CBS News, report that five immigrant children filed a federal complaint in U.S. District Court in Los Angeles on June 29 alleging that the government is "causing grave harm to children" by detaining them for long periods of time in overly restrictive conditions and forcing them to take psychotropic medication, in violation of the law. The lawsuit seeks class action status, and asks the court to block the Office of Refugee Resettlement (ORR) from placing children in detention. The five children say they have endured physical and emotional abuse while detained. The children are represented by the National Center for Youth Law (NCYL) and the Center for Human Rights and Constitutional Law, the organizations that worked on Flores v Reno, the 1997 Supreme Court case which created national standards for holding immigrant children in custody. "The children named in the lawsuit have been in federal custody for up to a year and a half, been administered psychotropic medications without consent, and been denied release to family members for manufactured reasons or without any reason provided at all, and with no opportunity to even review, much less appeal, the government's decisions," read a statement by the NCYL. Among the children who are plaintiffs is a 16-year-old girl from Honduras who has been detained for 11 months. The Office of Refugee Resettlement allegedly refuses to release her to her sister unless she can pay $500 a month for the girl's medication and move to a home with a separate room for the girl. Another plaintiff is a 12-year-old boy who has also allegedly been forced to take psychotropic drugs and has no legal counsel to assist him with regard to the drugs or his detention. Like the girl, the boy also has a sister in the U.S. who can care for him. A 17-year-old plaintiff who has been detained for more than a year claims he has been repeatedly assaulted by ORR staff. "One time he had to wash pepper spray out of his eyes with toilet water," National Center for Youth Law spokesperson Lewis Cohen said on a conference call with reporters on June 29. Another 17-year-old says she has been placed on numerous psychotropic medications for which ORR has not received the consent of her grandfather, who is her closest U.S. relative. A 13-year-old plaintiff says he has suffered physical abuse at the hands of older youths in the facility where he's held. The statement continues: "The complaint charges the government with inappropriately detaining children in unnecessarily restrictive detention centers without fair process, unlawfully medicating children without parental or other appropriate authorization, and failing to promptly release children to family members in the United States. It also alleges that the government is violating the Fifth Amendment of the U.S. Constitution by obstructing detained children from accessing lawyers and failing to provide due process." In response to CBS News' questions about the lawsuit, the U.S. Department of Health and Human Services' Administration for Children and Families said they had a policy against commenting on pending litigation. [GN] UNITED STATES: Osage County Commissioners to Discuss Class Action ----------------------------------------------------------------- Bill Lynch, writing for Bartlesville Radio, reports that the July 2 was the first meeting of the new fiscal year for the Osage County Board of County Commissioners. During which, the Commissioners signed new contracts, approved Professional Service agreements, and lease agreements. The Commissioners also discussed the possibility of opting in a class action lawsuit against the federal government, and discussed the implications of voters passing of State Question 788. Following the signing of several new and existing contracts for the fiscal year, the Commissioners discussed the possibility of opting in to a class action lawsuit against the federal government. The lawsuit is Kane County, Utah V. United States, and comes following a Supreme Court decision that the federal government is required to fulfill obligations regarding payments owed to counties across the country after withholding funds due to budgetary reasons. However, District #3 Commissioner Darren McKinney felt the matter should be tabled in order to do more research. Mr. McKinney was concerned that action against the federal government rarely comes without ramifications. Finally, Heather Barkley from the Osage County Health Department discuss during citizens input that the local Health departments will have no control, or authority, of issuing or approving medicinal marijuana licenses. The license issuing authority will remain at the state level. The Commissioners also stated, since the County is the recipient of federal funds, drug testing will be performed on all County employees, and if an employee fails a drug test they will be terminated, zero tolerance. The Osage County Board of County Commissioners meets each Monday at 10am at the Osage County Courthouse in Pawhuska. [GN] UNITED STATES: Court Issues Protective Order in "Banos" ------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued a Protective Order Governing Items Disclosed by Respondents in the case captioned ARTURO MARTINEZ BANOS, et al., Plaintiffs-Petitioners, v. ELIZABETH GODFREY, et al., Defendants-Respondents, Case No. C16-1454-JLR-BAT (W.D. Wash.). No discovery took place during the pendency of this case. However, on April 4, 2018, this Court issued a final order in this case imposing compliance requirements on Defendants- Respondents. Therefore, the parties seek a limited protective order regarding compliance with the Final Order. The Court, here, ordered Respondents to grant bond hearings to class members who had reached 180 days of detention as of the date of this order and to grant bond hearings to class members at every 180- day mark of their detention thereafter; to provide a one-time report to the Court regarding Respondents' compliance with the Court's Order; and to provide notice to class members and class counsel of the custody hearings. The Final Order also provides that this Court may "enter further orders as may be necessary or appropriate to implement and enforce the provisions of this Order and Judgment." Compliance with the Final Order in this case, specifically the requirements to file information with the Court and share information with opposing counsel, will involve disclosure of sensitive, confidential, and/or private information for which special protection is warranted. Accordingly, the parties seek a limited protective order regarding compliance with the Final Order. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/yad5utl7 from Leagle.com. Edwin Flores Tejada & German Ventura Hernandez, on behalf of themselves as individuals and on behalf of others similarly situated, Petitioners, represented by Matt Adams, NORTHWEST IMMIGRANT RIGHTS PROJECT, Glenda Melinda Aldana Madrid, NORTHWEST IMMIGRANT RIGHTS PROJECT & Leila Kang, NORTHWEST IMMIGRANT RIGHTS PROJECT. Nathalie Asher, Field Office Director, Thomas D Homan, Acting Director of U.S. Immigration and Customs Enforcement, John F Kelly, Secretary of the Department of Homeland Security;, Lowell Clark, Warden, James McHenry, Director of Executive Office for Immigration Review & Jefferson B. Sessions, Acting Attorney General of the United States, Respondents, represented by Gladys M. Steffens Guzman, DEPARTMENT OF JUSTICE CIVIL DIVISION & Sairah G. Saeed, US DEPT. OF JUSTICE OFFICE OF IMMIGRATION LITIGATION. VOLKSWAGEN AG: Sanford Heisler Files Age Discrimination Action -------------------------------------------------------------- Attorneys from Sanford Heisler Sharp LLP filed a collective action Complaint against Volkswagen Aktiengesellschaft (Volkswagen AG) and two of its wholly owned United States subsidiaries in U.S. District Court for the Eastern District of Tennessee. It alleges Volkswagen AG, Volkswagen Group of America, Inc., and Volkswagen Chattanooga Operations LLC are engaged in a company-wide policy of age discrimination against employees 50 years and older. Named plaintiff Jonathan Manlove, 60, a resident of Oolltewah, Hamilton County, TN, and a former Supervisor in VW's Chattanooga auto manufacturing facility, is bringing the suit on behalf of himself and similarly situated U.S. employees of Volkswagen AG and its subsidiaries. The Plaintiffs' legal team includes Sanford Heisler Sharp's Nashville Office Managing Partner Kevin Sharp, who was a judge on the U.S. District Court for the Middle District of Tennessee from May 2011 through April 2017, serving from 2014 to 2017 as the Court's Chief Judge, and Leigh Anne St. Charles, an associate in the firm's Nashville office. "In the wake of the economically devastating 'Dieselgate' emissions scandal that destroyed VW's reputation worldwide, the German automaker is now attempting to re-boot by rebranding Volkswagen as a younger, sleeker company," said Sharp. "Apparently flouting U.S. environmental laws was not enough. The company is now attempting to purge older workers from its management ranks by implementing illegal age discrimination policies. Mr. Manlove is determined that VW's impermissible employment practices will not go unnoticed or unchallenged." Dr. Herbert Diess, U.S. Brand Chief of the Volkswagen Group announced the company's strategic rebranding campaign aptly named "TRANSFORM 2025+" in November 2016 in an effort to distract attention from the Dieselgate debacle. The plan focuses on replacing the old diesel-centric image of VW for a corporate persona emphasizing electric vehicles, e-mobility and connectivity, and "significant improvements in efficiency and productivity." In a June 26, 2017 press release, Volkswagen AG announced, "We are expecting our management levels to become younger and slimmer," and elaborating: "We are becoming slimmer, leaner and younger. This will make Volkswagen faster and more efficient at the same time as providing new motivation for junior managers." Among the reforms of TRANSFORM 2025+ is "Pact for the Future" -- a global policy of swapping older VW workers for much younger ones -- with the goal of eliminating 30,000 global jobs. The company intends to shed some 7,000 of these jobs in North and South America currently held by workers born between 1955 and 1960 who are in their mid- to late-60s through an early retirement scheme it euphemistically refers to as "natural fluctuations." Three s after the company issued its "younger, slimmer" press release, Manlove was demoted and transferred to a position in a different department, his first position when he joined VW in 2011. VW informed him the June 2017 demotion "was in recognition of his hard work," and gave him one year to find a new position in the company, or the demotion would become permanent. In the year since, Manlove has applied for other positions in the company, but VW management has prevented him from securing them. "The clock is ticking for Jonathan, and his efforts to undo his discriminatory demotion have not been successful," said St. Charles. "No monetary compensation is at stake for him or members of the class. He is a talented American auto worker who simply wants to continue performing the work at VW he is most capable of doing at a salary commensurate with his considerable training, skills, and experience. He and others facing age discrimination at the company have many years of work productivity remaining. Demoting them and eliminating their positions to embellish VW's tarnished reputation is simply wrong." The Complaint describes the plight of additional U.S. employees at VW older than 50 who have experienced similar recent discrimination as part of the Pact for the Future initiative. To's action seeks injunctive relief for Manlove and other class members, including preventing VW from making his demotion permanent, requiring the company to restore his former title and work responsibilities, and preventing VW from discriminating against other older workers in the future. The Complaint also asks the court to certify a collective action under the Age Discrimination in Employment Act (ADEA) of 1967, which protects employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. A jury trial is requested. Jamie Moss NewsPRos Telephone: 201-788-0142 Email: jamie@newspros.com[GN] WALMART: Faces Class Action Over Shoplifting Extortion Scheme ------------------------------------------------------------- John Woolfolk, writing for Mercury News, reports that call it revenge of the shoplifters: Some of the country's biggest retailers, from Walmart to Bloomingdale's to Abercrombie & Fitch, are being accused of extorting shoppers caught swiping merchandise. The bizarre twist is spelled out in a class-action lawsuit filed in federal court in San Jose that begins when a mother shopping for a birthday barbecue with her kids was stopped while leaving the self-checkout at Walmart. The retailer's loss-prevention officers took her aside and accused her of not paying for hot dog buns and a water bottle. They gave her a choice: Cop to shoplifting and agree to pay $500 for an online class aimed at setting her on the straight and narrow -- or else they'd call the police. The Utah company that provides the class, Corrective Education Company, called it a win for everyone. The accused shoplifter avoided an arrest, jail and criminal record while learning crime doesn't pay. The retailer got justice. The cops stay focused on more pressing needs. But the lawsuit against Corrective Education officials and their retail clients called it an extortion racket that would make Al Capone blush. "Despite their glittering credentials," the complaint says, the program's producers "are all participants in a long-running, highly profitable extortion scheme that has extracted millions of dollars from thousands of poor, desperate people across the country." Not quite, said Scott Gant, a lawyer with the Boies Schiller Flexner firm representing the accused CEC officials. He said the complaint alleging violations of the Racketeer Influenced and Corrupt Organizations Act is based on "a novel but incorrect legal theory." "This simply isn't extortion," Mr. Gant said. "The program is voluntary. People don't have to participate when they sign up. They're given an opportunity to change their minds. And they get benefits for participating -- they get the actual service of the education program." The lawsuit claims the company had initially paid some retailers up to $40 per person enrolled in the class. That wasn't the case with Walmart, whose spokesman Ragan Dickens said the retailer did nothing wrong and has since dropped the program. "We began evaluating this program last year and ultimately suspended it last December," Mr. Dickens said. "We deny the allegations made against us and plan to defend ourselves." Other retailers named in the complaint, filed April 9, declined or did not respond to requests for comment. The court has not set a hearing date. Corrective Education Company was co-founded in 2010 by Glenn Bingham, Darrell Huntsman and Brian Ashton, all graduates of Brigham Young University and Harvard Business School. All are named in the lawsuit, along with six other company officials. The company pitch is straightforward: "CEC understands the challenges facing retailers, courts, prosecutors and law enforcement agencies due to retail theft" and offers "a successful, equitable and more efficient alternative to judicial prosecution." Shoplifting cost retailers more than $17 billion in 2016, according to Loss Prevention Media. The program is aimed at first-time shoplifters who, after being detained by retail personnel, are shown a video explaining the deal. The video notes that it is not legal advice, that the "Restorative Justice Option" being offered is entirely voluntary and that they are free to consult a lawyer. To successfully complete the program, the accused must stay out of trouble, complete the course of up to eight hours to "help you to lead a more constructive life," and pay for it. Participants could pay either $400 up-front or installments up to $500, the lawsuit claimed, but If they fail to complete the course, they are referred to police. The lawsuit cites three plaintiffs by pseudonyms, including the Georgia mother referred to as "Jane Doe," and "Mary Moe" of Florida, who was accused of stealing snack foods and hygiene products at a Walmart in November and paid $400 for the course. "John Roe," a Texan accused of lifting a ball hitch in January 2017, failed to pay for his course and was referred to a collection agency. CEC has drawn growing scrutiny and legal trouble. A 2015 Slate article said the company in its first four years had served 20,000 accused shoplifters but also quoted critics including a New York legal aid lawyer who said the operation was "flirting with the crime of coercion." The San Francisco City Attorney sued CEC in 2015 and won a Superior Court injunction last year that called the program "textbook extortion under California law." The company and retailers, the ruling said, were "jointly liable for the extortionate conduct" of "asking for money in exchange for forbearance in calling police." The Indiana attorney general concluded in April that the program "potentially violates a number of legal and ethical provisions." CEC on its website called the San Francisco ruling "a sad day for Californians," arguing its program has kept 10,000 people out of the criminal justice system and that fewer than 2 percent of those who complete its program repeat the crime. It called the Indiana opinion a "flawed analysis." But the company has a noteworthy ally: G. Robert Blakey, primary drafter of the RICO Act, told the Bay Area News Group the case against the company seemed a "misuse of the statute." "If a person was physically restrained from leaving and reasonably afraid of unlawful physical violence, you might make out an extortion," Mr. Blakey said. "But that has not been pled in this complaint." [GN] WELLS FARGO: Sued Over Jewelry-Financing Program Hidden Fees ------------------------------------------------------------ Rob Bates, writing for JCK, reports that J. Edwards Jewelry Distributing and its president John Silverman have been listed as plaintiffs in an attempted class-action lawsuit that targets Wells Fargo's alleged use of hidden fees in its jewelry-financing program. According to a complaint filed June 28 in San Francisco federal court, El Paso, Texas-based J. Edwards Jewelry Distributing was a participant in Wells Fargo's Jewelry Advantage program. Similar Wells Fargo products exist for other industries, including for cars and home care, it says. The complaint alleges that while retailers were not allowed to charge customers additional finance fees, they were encouraged to build the program's fees into the cost of their products. This, it says, violates the 1968 Truth in Lending Act, as customers are told that their purchases are being financed for 60 months at 0 percent interest. "In reality, Wells Fargo's financing scheme results in the creation of illegal hidden finance charges, and the imposition of double-digit interest rates on consumers," charges the complaint. The suit asserts that in many cases, retailers gave customers the option of "saving" money by paying in cash rather than signing up for the Wells Fargo credit card--as that means the store saves the money it would ordinarily pay to Wells Fargo. It adds that, since the finance charge is typically built into the cost of the item, retailers often charge customers sales tax on the entire item, including their finance fees, even though stores are typically not allowed to charge sales tax on finance charges. The suit, which seeks class-action status, charges that Wells Fargo might make as much as $800 million a year on what it calls "hidden finance charges." It says that class members could number 5,000 merchants. J. Edwards Jewelry Distributing and Wells Fargo could not be reached for comment. However, the San Francisco-based bank told Reuters that it does not comment on pending litigation. [GN] WH ADMINISTRATORS: Bid to Stay "Young" Denied --------------------------------------------- In the case, KERRY YOUNG, on behalf of himself and all similarly situated persons, Plaintiff, v. WH ADMINISTRATORS, INC., Defendant, Case No. 1:17-cv-02829-STA-egb (W.D. Tenn.), Judge S. Thomas Anderson of the U.S. District Court for the Western District of Tennessee, Eastern Division, denied without prejudice the Defendant's Motion to Stay. On Nov. 10, 2017, Tennessee Tractor, LLC, and Young, on behalf of himself and all similarly situated persons, filed a class-action Complaint under the Employee Retirement Income Security Act against the Defendant. On Nov. 27, 2017, the Plaintiffs filed a still-pending Motion for Preliminary Injunction. On Dec. 4, 2017, Defendant filed a Motion to Compel Arbitration. Then on Dec. 11, 2017, the Plaintiffs filed an Amended Complaint, resulting in the Defendants' re-filed Motion to Compel Arbitration. After the parties filed a Response, a Reply, and a Sur-Reply, the Court granted the Defendant's Motion to Compel Arbitration in Part and compelled Tennessee Tractor to take its claims against the Defendant to arbitration. The Defendant sought reconsideration of its Motion as to Young and the other class Plaintiffs, which the Court denied in its April 13, 2018 Order. On May 4, 2018, the Plaintiff filed a Motion for Leave to Supplement the Motion for Preliminary Injunction with information concerning the filing of a lawsuit by the U.S. Department of Labor against WHA in the U.S. District Court of Maryland on May 2, 2018. The Court granted that Motion. The parties seem to be in agreement that the Department of Labor makes allegations against the Defendant that are substantially similar to those made by the Plaintiff. In addition to the Plaintiff's pending Motion for Preliminary Injunction, the Defendant has filed a Motion to Dismiss, the instant Motion to Stay, and a Motion to Quash. The Order is solely concerned with the Motion to Stay. Upon the consultation of the counsel for the Motion, the Plaintiff indicated his opposition but has not yet filed a memorandum. The time for the Plaintiff to file has not yet expired, but since the Court agrees with the Plaintiff's position, the Plaintiff will suffer no prejudice in not being afforded an opportunity to respond. The Defendant argues that (1) a stay would not be prejudicial to the Plaintiff, (2) failure to stay the matter would be prejudicial to the Defendant, and (3) a stay would serve the interests of judicial efficiency and economy. To the first point, the Defendant asserts that there is no risk of dissipation of assets, such as the Plaintiff is concerned about, because the relevant plan trust account only has $263.44, and the Defendant does not have control over those funds. To the second point, it submits that it will suffer prejudice by being forced to defend itself in two different courts over the same subject matter. Finally, it offers that a stay will serve judicial economy because, depending upon the outcome of the case involving the Department of Labor, the Court may have no need to review the pending Motions or the underlying merits of the case. Judge Anderson is not convinced. He finds that at this early stage of the proceedings, the Court is forced to give substantial weight to the harm that the Plaintiff alleges it will suffer if its Motion for Preliminary Injunction is not granted. The Sixth Circuit and Supreme Court have made clear that it is a heavy burden that must be met for a party's rights to be resolved without his participation. And he is not satisfied that the burden has been met in this instance. The Judge is not persuaded that either the fact that the Defendant must participate in two lawsuits or that judicial efforts may be duplicated to some extent outweighs the potential prejudice to the Plaintiff if the action is stayed. Therefore, he denied the instant Motion without prejudice. A full-text copy of the Court's May 25, 2018 Order is available at https://is.gd/JRIkas from Leagle.com. Tennessee Tractor, LLC, on behalf of itself and the Tennessee Tractor, LLC Health and Welfare Benefit Plan & Kerry Young, on behalf of himself and all similarly situated persons, Plaintiffs, represented by John I. Houseal, Jr. -- jhouseal@glankler.com -- GLANKLER BROWN, PLLC & Don Lester Hearn, Jr. -- dhearn@glankler.com -- GLANKLER BROWN, PLLC. WH Administrators, Inc., Defendant, represented by James Allison Holifield, Jr., HOLIFIELD JANICH & ASSOCIATES, PLLC & Ronald Scott Kravitz -- rkravitz@sfmslaw.com -- SHEPARD FINKELMAN MILLER & SHAH, LLP. WHIRLPOOL CORP: "Bodley" Suit Transferred to W.D. Mich. ------------------------------------------------------- The United States District Court for the Northern District of California granted Defendant's Motion to Transfer the case captioned JAMES BODLEY, et al., Plaintiffs, v. WHIRLPOOL CORPORATION, Defendant, Case No. 17-cv-05436-JST (N.D. Cal.) to the Western District of Michigan. This case involves two overlapping prospective class action lawsuits against Whirlpool: the first-filed case in the Western District of Michigan and the instant case filed in the Northern District of California. In his First Amended Complaint, Burch seeks to represent a proposed class of nationwide and Virginia consumers who bought and use Whirlpool residential dishwashers. He alleges that Whirlpool's dishwashers are defective in that their upper rack adjusters are made of brittle plastic that routinely break during normal use. Roughly nine months after Burch filed his complaint, Plaintiffs James Bodley and Kyle Matson filed the instant action. The Plaintiffs seek to represent nationwide and California consumers who bought a KitchenAid dishwasher or a home with a KitchenAid dishwasher already installed. They allege that the upper rack assemblies are defective and fail as the heat generated by the dishwasher causes the plastic components to become brittle and break. District courts have diversity jurisdiction over class action lawsuits when the amount in controversy exceeds $5,000,000 exclusive of interest and costs, there are more than 100 members in the proposed class, and any member of the proposed class is a citizen of a State different from any defendant. The first-to-file rule allows a district court to transfer, stay, or dismiss an action when a similar complaint has already been filed in another federal court. The first factor, chronology, weighs in favor of applying the first-to-file rule because the Burch lawsuit was filed first. The second factor, similarity of parties, also weighs in favor of applying the rule. The parties need only be substantially similar, not identical. Additionally, in assessing the similarity of parties in a class action, courts compare the classes, not the class representatives. The Plaintiffs argue that the parties are different because Burch seeks to represent owners of any dishwasher manufactured by Whirlpool while the Plaintiffs in this case seek to represent owners of KitchenAid dishwashers manufactured by Whirlpool. The Court also notes that the Plaintiffs seek to represent a subclass of homebuyers with KitchenAid dishwashers already installed. While the parties in the two lawsuits are not identical, they are substantially similar. Because these cases satisfy all three factors, the first-to-file rule applies. The Court finds that the modest inconvenience to the Plaintiffs is greatly outweighed by the importance of conservation of judicial resources and the comprehensive disposition of litigation. Accordingly, because the Court finds that the balance of convenience is neutral or at most only slightly more favorable to the California forum, it declines to exercise its discretion to depart from the first to file rule here. After determining that the first-to-file rule applies, the Court must decide whether to dismiss, stay, or transfer the case. District courts have broad discretion in making this decision. A transfer is the most appropriate option in this case because it is inefficient and impractical to have two overlapping class actions proceed individually in two separate courts. A full-text copy of the District Court's May 24, 2018 Order is available at https://tinyurl.com/ybl2bqzq from Leagle.com. James Bodley & Kyle Matson, on behalf of themselves and all others similarly situated, Plaintiffs, represented by David Michael Birka-White dbw@birka-white.com -- Birka-White Law Offices, Mindy Monhai Wong -- mwong@birka-white.com -- Birka- White Law Offices, N. Scott Carpenter -- scarpenter@cstriallaw.com -- Carpenter & Schumacher, P.C., pro hac vice & Rebecca Elizabeth Bell-Stanton -- rstanton@cstriallaw.com -- Carpenter & Schumacher, P.C., pro hac vice. Whirlpool Corporation, Defendant, represented by Galen Driscoll Bellamy -- bellamy@wtotrial.com -- Wheeler Trigg O'Donnell LLP, Eric L. Robertson -- robertson@wtotrial.com -- Wheeler Trigg O'Donnell LLP, pro hac vice, James M. Hanlon, Jr. -- jhanlon@glynnfinley.com -, Glynn & Finley, LLP & Jonathan A. Eldredge -- jeldredge@glynnfinley.com -- Glynn & Finley, LLP. WIDEOPENWEST INC: Faces Class Action Over May 2017 IPO ------------------------------------------------------ RM LAW, P.C. on July 2 disclosed that a class action lawsuit has been filed on behalf of all persons or entities that purchased WideOpenWest, Inc. ("WideOpenWest" or the "Company") (NYSE: WOW) publicly traded securities pursuant to the Company's initial public offering ("IPO") in May 2017. If you purchased shares of WideOpenWest and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299. Between May 25 and May 30, 2017, WideOpenWest conducted its IPO, offering 320,970,589 shares priced at $17.00 per share, raising $356 million in gross proceeds. However, the Company -- who claimed its Chicago fiber project was a driver of future growth for the Company -- failed to disclose that it was planning to sell this valuable project just months after the IPO. The Company also failed to disclose that its customer service and user experience had deteriorated such that WideOpenWest was losing customers and would be forced to invest additional funds to curtail the losses. On March 14, 2018, the Company issued its financial results for the fourth quarter and fiscal year 2017, announcing a full year decline in total revenue of approximately 4%, and revealing that WideOpenWest "had not lived up to [its] long-held reputation of providing exceptional customer experiences," and that the Company required "investments of between $20 million and $25 million . . ." In response to these and other disclosures, WideOpenWest's stock plunged more than 23% on March 15, 2018, to close nearly 59% below the IPO price. For more information regarding this, please contact RM LAW, P.C. (Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by email at rm@maniskas.com For more information about class action cases in general or to learn more about RM LAW, P.C. please visit our website. RM LAW, P.C. is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. [GN] * Justice Kennedy's Departure Likely Favorable for Businesses ------------------------------------------------------------- Lawrence Hurley, writing for Reuters, reports that in a hotly contested case before the U.S. Supreme Court three years ago, Justice Anthony Kennedy cast the deciding vote to uphold the broad scope of race discrimination claims that can be brought under the Fair Housing Act. While Justice Kennedy's legal decisions were often friendly to corporate interests, his rulings -- as in the Fair Housing case - - sometimes went against them, especially in cases involving civil rights and environmental regulation. Now, his impending departure from the court, announced on June 27, has raised hopes among some business interests that his replacement will be more consistently in their corner. "Kennedy was not doctrinaire and was sometimes unpredictable. The outcomes of his decisions weren't consistently pro-business or consistently anti-business. He took every case as it came to him," said John Elwood, a Washington lawyer who previously served as a law clerk to Kennedy. Justice Kennedy will be replaced with a justice selected by President Donald Trump, who has said he will make his choice from a shortlist of conservative judges. One area in which that could lead to more business-friendly decisions is in "disparate impact" litigation, a concept at the core of the Fair Housing Act fight. Under the principle, lawsuits can be won when an action has an outsized negative effect on a specific ethnic, racial, gender or other group, even if there is no evidence of discriminatory intent. The court's jurisprudence is unlikely to change radically on some other business matters, since Justice Kennedy was generally a reliable vote for corporate interests on issues such as curbing class action lawsuits by consumers and employees and endorsing the increasing use of arbitration agreements. The disparate impact question, however, could return to the court in various forms. There is currently litigation in lower courts, for example, over whether such claims can be brought against companies that insure homeowners. "The banking and insurance industries have set their sights on attacking the disparate impact standard," said Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law. She urged senators to grill Trump's nominee on the issue during the Senate confirmation process expected later this summer. MUDDIED WATERS Another area where business interests could benefit from Kennedy's departure is on the scope of federal regulatory authority over bodies of water. Construction companies, including homebuilders, have long sought to limit the circumstances in which they are required to obtain federal permits under the Clean Water Act for their projects. Justice Kennedy wrote a key opinion in a 2006 case in which the court sought to define the limits of federal jurisdiction in such matters, but the decision had no clear majority and left the law unsettled. Four justices joined an opinion by conservative Justice Antonin Scalia limiting the circumstances in which the Clean Water Act applies. The crucial fifth vote was provided by Justice Kennedy, but he wrote a separate opinion setting out a less stringent test than Scalia's. Because his vote was decisive to the outcome, most courts have deferred to Justice Kennedy's view. The issue is still being litigated, and a new justice who agreed more fully with the other four conservative justices could change that. "Should the issue reach the court, Justice Scalia's restrictive view of Clean Water Act jurisdiction . . . will become the law of the land," said Andrew Grossman, a lawyer who represents corporate interests. Another long-time goal of businesses has been to limit the power of federal agencies, a sentiment the Trump administration shares. Although Kennedy had recently suggested his thinking was heading in that direction, his rulings were mixed, and business groups hope Trump will appoint a justice who sees the issue as the administration does. Court watchers caution, however, that a judge's decisions aren't always predictable in advance. "Generally one would think if you have a conservative justice, probably they would be of like mind but that's not a 100 percent guarantee," said Pratik Shah, a Washington lawyer who argues cases at the Supreme Court. [GN] * Most Retailers Face Title III Litigation Threat ------------------------------------------------- Edward F. Harold, Esq., of Fisher Phillips, in an article for Lexology, reports that most retailers have by now faced a Title III lawsuit under the Americans with Disabilities Act (ADA) contending that a store is not accessible to disabled individuals. There remains a plethora of attorneys who make a living finding non-compliant facilities and bringing suit to have the facility brought into compliance -- while, of course, seeking recovery of their attorneys' fees. The vast majority of these cases involve matters that can easily be and are fixed, which means the stakes and settlements are relatively small. However, when grouped together, the numbers can add up. Class Action Complaints: Often Illogical, Always Expensive Recently, some enterprising plaintiffs' attorneys have come up with a theory that allows them to seek to bring these claims as a class action directed at all of a company's locations. The theory that is that a company's ADA overall compliance policies should be scrutinized if they are insufficient to identify, correct, and prevent barriers to accessibility, justifying class litigation. They claim the policy itself must be ineffective if individual Title III violations exist at several locations. These plaintiffs' attorneys will argue that the ADA requires a business to maintain an active program of inspecting facilities and correcting problems as they arise. For example, a parking lot can be built to be in compliance with the ADA, but over time, natural causes can change the slope of the lot to cause it to be no longer compliant. Attorneys will contend that the company's failure to identify these changes and proactively correct them is an ADA violation. In fact, as a result of such allegations, a national restaurant and retail chain was recently forced to defend a case where the court certified an expansive class of potential litigants. The court approved a group of class plaintiffs to include all persons "with qualified mobility disabilities who were denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations" of any store location in the United States on the basis of disability because such persons encountered accessibility barriers due to that chain's "failure to comply with the ADA's accessible parking and path of travel requirements." On its face, permitting this lawsuit to proceed seems to contravene some of the basic principles established in individual lawsuits. For example, an individual must typically visit the location at issue to have standing to bring a lawsuit. These class actions, however, are based on investigators hired by the attorneys or the attorneys themselves visiting many stores and not on any of the plaintiffs actually visiting all the stores at issue. Likewise, since the ADA provides only for injunctive relief and not for damages, it is hard to understand why a class of plaintiffs would even be necessary. While an injunction requiring a business to come into Title III compliance would certainly benefit all class members, they do not need to be a party to a lawsuit to enjoy that reward. But courts have nevertheless been ignoring these practical concerns and certifying national class actions. This automatically brings with it the need for businesses to do significant additional legal and administrative work, which drives up the fees that the attorneys can claim at the end of the day. It also allows for the potential cost of compliance with the lawsuit to go from what is often a few hundred or thousand dollars to millions. The settlement agreement filed in the above action shows just how costly and burdensome these types of actions can be. To resolve the case, the national restaurant and retail chain agreed to create a parking lot ADA compliance assessment form, approved by the plaintiffs' counsel. This form will be used to train facility managers in ADA parking lot compliance assessments and conduct assessments of parking lots for ADA compliance on a periodic basis of all its stores nationwide. It will also be used by plaintiffs' counsel to monitor these compliance efforts, and to remediate any parking lots found to be out of compliance. In addition, it agreed to pay class counsel fees of $830,000. Conclusion The contention that the ADA requires a company to adopt a policy to identify, correct, and prevent accessibility barriers is controversial. But the expense of defending class actions based on the theory has prevented many of the suits from getting to the point where the issue would be decided by a court. So it makes good sense to assess your facility maintenance program to be ready to defend against a claim. In the case discussed above, the restaurant and retail chain had no formal program to monitor ADA compliance of its facilities, and its facilities inspectors had little in the way of formal training in ADA compliance. Considering that the judge writing the opinion led off his analysis with this information suggests that the complete absence of such a policy was a significant factor in the class certification stage. To avoid the same fate, retailers should first adopt a policy that states the company intends to comply with Title III of the ADA. The policy should then be put into action by incorporating ADA compliance checklists into the regular work of the individuals responsible for facility maintenance. Carrying out these efforts will not only help defend against a class claim based on the lack of an effective policy, but hopefully also correct issues in a way that leads to fewer individual claims. [GN] * State Privacy Laws' Unintended Consequences Can Be Far-Reaching ----------------------------------------------------------------- Daniel Castro, writing for Government Technology, reports that in January, Google launched a new feature in its Google Arts & Culture app that allowed users to take a selfie and find out whether their face matched any of those in historical paintings. The new search tool was nothing more than a momentary amusement for most people, albeit one that was wildly popular. However, people in two states -- Texas and Illinois -- were left out of the fun because of state privacy laws restricting the use of facial recognition technology. Unfortunately, laws like these may ultimately cost consumers and businesses much more than just access to the latest trending apps. Biometrics -- quantifiable measurements about a person's physical or behavioral characteristics, such as how someone looks, speaks or walks -- are useful for many different types of applications. For example, they are used to increase efficiency, such as by automatically identifying individuals, and to increase security, such as by adding an additional layer of verification to a multi- factor authentication system. One company has even pioneered a wearable device that provides a new type of "always on" biometric, allowing users to authenticate themselves by their unique heartbeat. Unfortunately, some privacy activists have vigorously opposed the growing ubiquity of biometrics since its earliest days. This opposition has led to the passage of laws like the Biometric Information Privacy Act (BIPA), the state law that kept Illinoisans out of the recent Google app. This law, which was the first of its kind when the state passed it in 2008, requires companies to obtain prior written consent from individuals before using biometrics, as well as to provide written notification detailing the specifics of how they will collect, use and store that information. Drawing Outside the District Lines Now a decade old, the law shows the unintended consequences of heavy-handed privacy regulations. Originally, proponents of the law were concerned about widespread identity theft and government surveillance. While these problems have not materialized in any state, BIPA has become a roadblock to even some rudimentary uses of biometrics in Illinois. One problem is that even minor violations of the law can subject companies to steep penalties of up to $5,000 per infraction, even if there is no actual consumer harm. And since BIPA allows individuals to file private lawsuits for violations, it has opened the door to more than 30 class-action lawsuits against companies operating in Illinois in 2017 alone. A number of tech companies have faced significant class-action lawsuits for potential violations. Facebook, for example, faces massive potential fines because of a feature on the social network that used facial recognition technology to automatically tag photos of friends. Shutterfly, a popular online photo publishing service, has already settled a BIPA class-action lawsuit for an undisclosed amount. The problem for these companies is that obtaining prior consent is impractical for certain applications, such as analyzing photos uploaded by users. But it is not just tech companies who are caught in the crosshairs of this law. Many businesses are running afoul of the notification requirements as well. For example, some companies are upgrading their antiquated time and attendance systems to improve their employees' work hours and replacing them with more advanced biometric systems. These biometric systems avoid problems such as "buddy punching" where one employee clocks in or out for their absent coworker. But implementing these systems successfully under BIPA has proven difficult, and a number of companies in Illinois now face lawsuits for using these time clocks for their employees. While state privacy laws are often well-intentioned, as BIPA shows, their unintended consequences can be far-reaching. The Illinois legislator who originally introduced BIPA has tried to amend the law because he says he never intended to restrict many of these activities, but fixing legislation is never easy. Surprisingly, a number of states are considering copycat legislation that would similarly limit biometrics. This would be a mistake. Rather than imposing new restrictions on biometrics, states would better serve local residents and businesses by encouraging greater use of this technology to increase productivity and improve security. [GN] * Supreme Court Empowers Corporations Over Individuals ------------------------------------------------------ Richard North Patterson, writing for Boston Globe, reports that Justice Kennedy's resignation will worsen a Supreme Court already in thrall to the right. In rapid succession, a 5-4 conservative majority on the Supreme Court has upheld Trump's Muslim ban and curbed the political power of labor unions. But among its less- noted malignancies is empowering corporations over individuals. The latest victims are employees whose rights are dependent on class-action lawsuits. The stakes are seismic. Class actions are brought by individual plaintiffs on behalf of a much larger group of people allegedly damaged by the same wrong, inflicted by the same defendant. They are indispensable to people of modest means whose injury is significant to them but who, as individuals, cannot afford to sue a well-funded corporation. Banishing class actions tops the corporate legal agenda. Corporations loathe the expense of defending them, and fear the prospect of large verdicts compensating thousands of individuals for the same dereliction. Their goal is simple: compelling the individual victims of alleged wrongdoing to battle corporations alone. [GN] * TCPA Filings Down 17.7% to 1,696 Cases in May 2018 ---------------------------------------------------- Eric J. Troutman, writing for TCPAland, reports that TCPA filings are down significantly YTD for the second year in a row. So why doesn't it feel that way? Read on to learn our theory below. First, the numbers. According to data available from Webrecon.com-which notably departs quite a bit from our daily counts -- TCPA filings through the end of May, 2018 are down a whopping 17.7% with 1,696 cases filed so far this year compared to 2,062 cases through May 2017. That sounds pretty good. Zooming in on May, 2018 alone, however, matters are even more stark with filings at 410 cases, down 19% from May, 2017 when there were 506 cases filed. Wow, that sounds like real relief. But wait a second. For some reason class action TCPA filings are not declining at the same pace. Indeed, TCPA class action filings are actually up this year over last. There were 113 TCPA class actions filed in May, 2018 compared to only 68 class actions in May, 2017-that's a huge 66% increase from May last year. Looking at a single month of filings isn't necessarily informative of the overall picture, so let's zoom out a bit. Looking at 2018 YTD vs 2017 YTD we still see a meaningful INCREASE in TCPA class action filings -- 390 class actions have been filed YTD 2018 compared to 364 through May, 2017. That is an increase of 7% over last year. Zooming out even further, we see that TCPA class action filings through May have been pretty steady over the last 3 years after exploding following the FCC's TCPA Omnibus ruling in July, 2015: What do we make of these numbers? Well obviously the large increase in class action filings from 2015 to 2016 is due to the FCC's TCPA Omnibus ruling. But what about the large decrease in individual TCPA filings this year vs. the stable or increasing number of class actions? While the prevailing theory is that filings are lower owing to uncertainty following ACA, Int'l and perhaps even a sense that the TCPA is going out of vogue that doesn't explain why class action filings would increase while individual filings are decreasing. Indeed, if that theory were true we'd expect to see a bigger reduction in class filings since they require more investment and resources and would, therefore, be less appealing to consumer counsel in an era of increasing uncertainty or blase. The fact that class action filings are increasing while individual filings are decreasing suggests that something else is likely at work here -- efficiency. Owing to the increasing experience of practitioners on both sides of the "v" large number of TCPA claims are now being resolved via pre-suit demand letters. Plus most consumer lawyers have given up fighting arbitration in these cases-although Gamble may change that- resulting in a large number of arbitrations being directly initiated in AAA rather than starting out in federal court as would have occurred in years past. These two phenomenon-coupled with the successful efforts of this firm and others in challenging manufactured lawsuits and scam app manufacturers- likely account for the steady decline in individual federal court TCPA filings over the last two years. Yet class actions can not be resolved via informal demand letter (usually) and will never be directly initiated in AAA. So those numbers increase while overall individual filings decrease. But the total number of TCPA claims being pursued-whether through informal demand letters, arbitration, or federal court-is likely higher today than ever before. Viola!-the mystery is solved. Maybe. Whatever is behind the "decline" in TCPA filings, however, the TCPA class action -- and its threat of billions in potential exposure against American businesses doing nothing more than contacting their customers -- certainly remains alive and well. Blame the Godfather. [GN] * Truck Purchasers in UK Seek to Certify First Class Action ----------------------------------------------------------- Charley Connor, writing for Global Competition Review, reports that truck purchasers are seeking to certify the first class action in the UK's Competition Appeal Tribunal, in an attempt to claim damages following on from the European Commission's 2016 truck cartel decision. [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 * * *