/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180724.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 24, 2018, Vol. 20, No. 147 Headlines 2898 BAGEL: "Cazares" Suit Alleges FLSA and NYLL Violations AARGON COLLECTION: Ramos Sues over Debt Collection Practices AARP INC: Court Enters Protective Order in "Friedman" Suit AFFILIATED MONITORING: Has Made Unsolicited Calls, Hidenrick Says AIR METHODS: "Cox" Stayed Pending "Scarlett" Dismissal Bid Ruling ALLSTATE INSURANCE: $6.5MM Settlement in "Etter" Has Prelim OK AMERICAN HOME: 6th Cir. Affirms Freeze of Chesley Assets AUDIBLE INC: "McKee" Case Transferred to North Carolina AUTO SHOWCASE: Md. Spec. App. Affirms "Hewitt" Arbitration Ruling BAY AREA TOLL: Faces "Montgomery" Suit in California Super. Ct. BAYER HEALTHCARE: Court Grants Bid to Dismiss "Curran" Suit BEHR PROCESS: "Rose" Stayed Pending "Bishop" Deal Bid Approval BP WEST: Or. App. Affirms $409M in Statutory Damages in UTPA Suit BRAKE MASTERS: Faces "Durgin" Suit in Sacramento California BRITISH AIRWAYS: Has Made Unsolicited Calls, Blengino Suit Says CASTLEROM HOLDING: Plaintiffs Directed to Turn Over Lab Reports CHARMING CHARLIE: Removes "Brinkman" Suit to E.D. Louisiana CHSPSC LLC: "Mounce" ADTPA Suit Settlement Has Prelim Approval CITIZENS INC: Court Dismisses "Gamboa" Suit CONVERGYS CORPORATION: "Abner" Suit Alleges FLSA Violation CREDIT CONTROL: Aronne Alleges Wrongful Debt Collections CREDIT CONTROL: Kendrick Sues over Debt Collection Practices CROWDERGULF LLC: Bil-Jim Defendants in "Palmisano" Suit Dismissed CUSHMAN & WAKEFIELD: Doesn't Pay OT to Appraisers, Setz Says DEVILLE ASSET: "Begay" Suit Alleges FDCPA Violation DOORDASH INC: "Ontiveros" Suit Alleges Violation of FCRA DR. PEPPER SNAPPLE: Fisher Sues over Ginger Ale Label ECO CHIC LLC: Faces "Olsen" Suit in E.D. New York ENAGIC USA: Has Made Solicited Calls, "Higgins" Suit Alleges ENVISION HEALTHCARE: Court Dismisses Direct Billing Suit EQUINOR TEXAS: Faces "Gillespie" Suit in S.D. Texas EQUITY RESIDENTIAL: Faces "Fischler" Suit in E.D. New York EXPERIAN INFORMATION: 9th Cir. Affirms Summary Judgment in "Shaw" EXPERIAN INFO: Espinoza Bid to Subpoena LexisNexis Underway FACEBOOK INC: Bid to Stay Biometric Info Privacy Suit Denied FAIRMOUNT SANTROL: Fitzgibbon Sues Over Unimin Merger Deal FEDERAL EMERGENCY: Asencio Sues over Temporary Housing Programs FINANCIAL ASSET: Faces "Morgan" Suit in D. New Jersey FIRST CREDIT SERVICES: Gigiolia Alleges Wrongful Debt Collections FORBES ASSOCIATES: Faces "Bieler" Suit in M.D. Tennessee GEICO INSURANCE: Johnson Sues Over Insurance Benefit Reduction GENERATIONS FEDERAL: 4th Cir. Affirms Sanctions Against Attorneys GLOBAL CREDIT: Young Sues over Debt Collection Practices GOLUB CORPORATION: "Austin" Suit Seeks to Recover Unpaid Wages GREEN APPLE: Faces "Martinez" Suit in S.D. New York GREYSTAR REAL: Faces "Fischler" Suit in E.D. New York GROSS POLOWY: "Bayer" Suit Seeks Damages under FDCPA HOME DEPOT: Court Narrows Claims in Mahogany Board Fraud Suit HUMAN CARE LLC: Removes "Tokhtaman" Suit to S.D. New York HYUNDAI MOTOR: "Brown" Suit Alleges Warranty Violations INTEL CORP: PC Users Sue Over Processor Defect INTEL CORP: 2 Securities Fraud Suits Consolidated INTERNATIONAL BUSINESS: "Bishop" Suit Alleges ADA Violation INTERNATIONAL PAPER: Court Narrows Claims in "Arroyo" Suit JEFFERSON CAPITAL: Faces "Autry" Suit in E.D. Wisconsin KANONI INC: Faces "Tiquiram" Suit in E.D. New York KRS BIOTECHNOLOGY: Class Certification in "Sawyer" Denied LAUNDRY LAND: Escobar Sues Over Unpaid OT, Spread-of-Hours Pay MACFARLANE GROUP: Faces Williams-Stermel Suit in E.D. Pa. MATRIX TRUST: Youngblood and Steinbach Sue over Retirement Plans MDL 1446: Petition for Certiorari Filed in Giancarlo Suit MDL 2418: Court Dismisses SAC of Qui Tam Plaintiff METHODIST HOSPITALS: Discrimination Suit Class Cert. Bid Tossed MILGARD MANUFACTURING: Faces "Bowen" Suit over Defective Windows MONETA ENTERPRISES: Faces State Auto's Suit in S.D. Illinois MONTGOMERY COUNTY, NY: Court Partly Allows "Hill" Suit Amendment N.Y. TILE CORPORATION: Underpays Finishers, "Bucsit" Suit Claims NATIONAL RIFLE: Bid to Compel Reply to RFPs in "Kalmbach" Denied NATIONSTAR MORTGAGE: Rakestraw Alleges Violation of RESPA NATIONWIDE CREDIT: Gross Alleges Wrongful Debt Collections NELSEN & FEITELSON: Simmons Sues over Debt Collection Practices NEW YORK: COBA's Suit Dismissed Without Prejudice NISSAN NORTH AMERICA: Faces "Norman" Suit over Defective Parts NORTH JERSEY PROPERTY: Bautista Sues Over Denied Breaks, OT Pay NORTON OUTDOOR: Removes Shipps' Suit to S.D. Ohio OHANA MILITARY: Court Narrows Claims in "Lake" PETORE ASSOCIATES: Faces CCC Custom Carpentry's Suit in New York PNC BANK: Underpays Loan Mortgage Officers, Kazi Suit Says POPEYES LOUISIANA: "Edge" Suit Seeks Damages under FLSA RANGER ENERGY: Doesn't Pay OT to Operators, Bryant Alleges RAY KLEIN: "Antoine" Suit Alleges FDCPA Violations RECCO HOME CARE: Underpays Home Health Aide, "Liranzo" Suit Says RMB INC: Court Grants Bid to Dismiss "Kowaleski" FDCPA Suit ROADRUNNER INTERMODAL: $9.25MM "Singh" Settlement Has Prelim OK ROANOKE, VA: Policemen File Suit to Recover Unpaid Overtime Wages ROOFRX INC: Doesn't Pay Wages to Rooferes, "Gorman" Suit Claims RUSSELL P. GOLDMAN: Court Certifies Class in "Carney" FDCA Suit SLACK TECHNOLOGIES: "D'Ottavio" Sues Over Unsolicited SMS Ads SPEEDWAY LLC: Court Denies Certification Bid in "Teggerdine" SPEEDWAY LLC: "Howe" BIPA Suit Remanded to Ill. State Court STANLEY STEEMER: "Arensdorff" Remanded to Los Angeles Super. Ct. STEPHEN EINSTEIN: Powlett Alleges Wrongful Debt Collections STEWARD HEALTH: "Adkins" Suit Alleges ADA Violation STREAM ENERGY: "Basile" Settlement Has Prelim Court Approval SUEZ WATER: Fails to Pay Proper Wages, "Rivera" Suit Alleges SZNW HOSPITALITY: Underpays Room Attendants, "Molina" Suit Says THOM BROWNE: Faces "Olsen" Suit in S.D. New York TREESAP FARM: Faces "Aguilar" Suit in Sacramento California U.S. EXPRESS ENTERPRISES: Underpays Truck Drivers, Nunez Claims UBER TECHNOLOGIES: Antitrust Claims in "MacCausland" Dismissed UNITED ROAD: "Taylor" Suit Remanded to Kern County Superior Court UNITED SATES: HHS Secretary Faces Suit in C.D. California UNITED STATES: Bid to Monitor Review in "Pigford" Denied UNIVERSITY OF ROCHESTER: D'Amore Sues Over Fund Mismanagement VITAMIN SHOPPE: Ct. Strikes Nationwide Class Claims in "Walters" VMOC LLC: "Fernandes" Labor Suit to Recover Unpaid Overtime WALGREEN CO: Removes "Ramirez" Suit to N.D. California WASHINGTON AND JANE: Court Narrows Claims in "Dixon" Suit WESTERN REFINING: Removes "Dilworth" Suit to C.D. California WIDEOPENWEST INC: Faces "Kirkland" Suit over IPO Disclosures WILLIAMS-SONOMA INC: Cal. App. Affirms Dismissal of "Shine" Suit XPO LOGISTICS: $7MM Deal in "Leung" TCPA Suit Has Final Approval YONKERS, NY: Court Grants Bid to Dismiss "Fumarelli" Suit ZODIAC US: $952K "Cuzick" Settlement Has Partial Final Approval ********* 2898 BAGEL: "Cazares" Suit Alleges FLSA and NYLL Violations ----------------------------------------------------------- Ascencion Cazares, Benjamin F. Delacruz, Fanny Jisselle Lizardo Fabre, Gabino Romano Hernandez, Hermenejildo Angel Prudente, Idor Jean Luckner, Jose Cedano, Jose G. Reyes, Luis Alberto Salas Umana, Wendy Patricia Damas, Poco J. Ouedraogo, and Susana E. Robles Martinez, individually and on behalf of others similarly situated v. 2898 Bagel & Bakery Corp. dba Nussbaum & Wu, Sholomo Nussbaum and Natalie Doe, Case No. 1:18-cv-05953 (S.D. N.Y., June 30, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiffs are former employees of Defendants. The Plaintiffs were employed as sandwich makers, smoothie makers, delivery workers, cooks, cook assistants, and cashiers at the bagel shop located at 2897 Broadway, New York, New York 10025. The Defendants owned, operated, or controlled a bagel shop, located at 2897 Broadway, New York, New York 10025 under the name "Nussbaum & Wu". [BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Fax: (212) 317-1620 AARGON COLLECTION: Ramos Sues over Debt Collection Practices ------------------------------------------------------------ Chanele Ramos, individually and on behalf of all others similarly situated, Plaintiff v. Aargon Collection Agency, Defendant, Case No. 3:18-cv-01157-PK (D. Or., June 29, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Magistrate Judge Paul Papak. Established in 1996, Aargon Agency Inc., has become a national leader in debt recovery with vast experience providing collection services to major utility companies and healthcare providers nationwide. The Company is a nationally licensed debt collection agency headquartered in Las Vegas, Nevada with four offices in Hawaii, Colorado, Florida and Missouri. [BN] The Plaintiff is represented by: Bret A. Knewtson, Esq. 3000 N.E. Stucki Ave., Suite 230 M Hillsboro, OR 97124 Telephone: (503) 846-1160 Facsimile: (503) 922-3181 E-mail: bknewtson@yahoo.com AARP INC: Court Enters Protective Order in "Friedman" Suit ----------------------------------------------------------- Magistrate Judge Paul l. Abrams of the U.S. District Court for the Central District of California, Western Division, entered the parties' Stipulated Protective Order in the case, JERALD FRIEDMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. AARP, INC., AARP SERVICES INC., AARP INSURANCE PLAN, UNITEDHEALTH GROUP, INC. and UNITEDHEALTHCARE INSURANCE COMPANY, Defendants, Case No. 2:14-cv-00034-DDP-PLAx (C.D. Cal.). A full-text copy of the Court's May 30, 2018 Order is available at https://is.gd/0I9F3S from Leagle.com. Jerald Friedman, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Collins -- chrisc@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Frank J. Janecek, Jr. -- frankj@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Michael F. Ghozland -- Michael@ghozlandlawfirm.com -- Ghozland Law Firm, Sean Kennedy Collins -- sean@neinsurancelaw.com -- Sean K. Collins, Attorney at Law, Christopher C. Gold -- cgold@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Dorothy P. Antullis -- dantullis@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark J. Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice & Stuart A. Davidson -- SDavidson@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice. AARP Inc, AARP Services Inc & AARP Insurance Plan, Defendants, represented by John W. Amberg -- jwamberg@bclplaw.com -- Bryan Cave LLP, Alec W. Farr -- awfarr@bclplaw.com -- Bryan Cave LLP, pro hac vice, Darci F. Madden -- dfMadden@bclplaw.com -- Bryan Cave LLP, pro hac vice, Gregory J. Sachnik -- gregory.sachnik@bclplaw.com -- Bryan Cave Leighton Paisner LLP, pro hac vice, Heather S. Goldman -- heather.goldman@bclplaw.com - - Bryan Cave Leighton Paisner LLP, pro hac vice, Jeffrey S. Russell -- jsrussell@bclplaw.com -- Bryan Cave LLP, pro hac vice & Sarah Beth Burwick -- sarah.burwick@bclplaw.com -- Bryan Cave Leighton Paisner LLP. UnitedHealthGroup Inc & UnitedHealthCare Insurance Company, Defendants, represented by Brian David Boyle -- bboyle@omm.com -- O'Melveny and Myers LLP & Meaghan VerGow -- mvergow@omm.com -- O'Melveny and Myers LLP, pro hac vice. AFFILIATED MONITORING: Has Made Unsolicited Calls, Hidenrick Says ----------------------------------------------------------------- SANDRA HIDENRICK, individually and on behalf of all others similarly situated, Plaintiff v. AFFILIATED MONITORING, INC., and LIFESTATION, INC., Defendants, Case No. 2:18-cv-11214-ES-MAH (D.N.J., July 1, 2018) seeks to stop the Defendants' practice of using an automatic telephone dialing system to place calls to the cellular telephone numbers of the Plaintiff and the consumers nationwide without their prior express written consent. Affiliated Monitoring, Inc. is a New York corporation headquartered in Union, NJ. The Company conducts business throughout the State of New Jersey, and the United States. [BN] The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 1072 Madison Ave. Suite 1 Lakewood, NJ 08701 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com AIR METHODS: "Cox" Stayed Pending "Scarlett" Dismissal Bid Ruling ----------------------------------------------------------------- In the case, MICHAEL AND TABITHA COX, individually and on behalf of their minor child, W.C., Plaintiffs, v. AIR METHODS CORPORATION and ROCKY MOUNTAIN HOLDINGS, LLC, Defendants, Civil Action No. 1:17-04610 (S.D. W.V.), Judge David A. Faber of the U.S. District Court for the Southern District of West Virginia, Bluefield, denied the Plaintiffs' motion to remand and stayed the matter pending the dispositive motion to dismiss currently before the U.S. District Court for the District of Colorado in Scarlett v. Air Methods Corporation, et al. On Aug. 18, 2017, the Plaintiffs filed a putative class action against the Defendants. The Defendants provide air ambulance services in West Virginia and other states. The Plaintiffs' child W.C. was hospitalized at Princeton Community Hospital in Princeton, West Virginia and required air transportation to CAMC Women's and Children's Hospital in Charleston, West Virginia. The Defendants transported W.C. the necessary 76 rotor miles. No written contract or verbal agreement memorialized these services. The Plaintiffs received a bill for $52,634.76 from the Defendants. The Plaintiffs' insurer, West Virginia Public Employee Insurance Agency ("PEIA") paid Defendants $6,704.14. PEIA also concluded that plaintiffs would be responsible to pay $586.79. Nevertheless, the Plaintiffs received a bill from Defendants for $45,930.62, the amount unpaid by PEIA. When the Defendants requested additional payment from PEIA, the insurer refused, stating in a May 6, 2016 letter that the additional $45,930.62 is clearly excessive. These excessive charges form the foundation for the Plaintiffs' claims: that the Defendants' actions constitute a breach of West Virginia implied contract law. The Plaintiffs' claims are on behalf of themselves and other similarly situated West Virginians who have used the Defendants' transportation services. The Plaintiffs define the proposed class as all patients who, without entering a written agreement with Defendants for medical transport prior to the transport, received medical transport by Defendants from a location in West Virginia to a healthcare facility during the period of five years prior to the commencement of the action. The Complaint alleges upon information, the proposed class would include hundreds, if not thousands of class members." The action seeks damages for any overpayments collected by the Defendants. In the alternative, the Plaintiffs request that the Court enjoin the Defendants from charging and collecting unreasonable rates. The Plaintiffs originally filed their action in the Circuit Court of Mercer County, West Virginia. The Defendants removed the action to federal court on Dec. 22, 2017, citing the removal requirements under the Class Action Fairness Act of 2005 ("CAFA") and traditional diversity jurisdiction. Soon thereafter, the Defendants filed a Motion to Transfer or Stay, seeking to either transfer the action to the U.S. District Court for the District of Colorado or stay the action until that court makes a ruling on a pending motion to dismiss. On Jan. 22, 2018, the Plaintiffs filed a motion to remand the action to the Circuit Court of Mercer County. On the same date, they filed the operative Amended Motion to Remand. The Plaintiffs' amended motion to remand claims the Defendants have offered insufficient evidence to establish that the action meets CAFA's jurisdictional threshold of at least 100 class members and $5 million amount in controversy. Judge Faber disagrees. While the Court is prone to believe that the Defendants' notice of removal meets its obligation under Dart, he finds that the Defendants' Response removes all doubt. The Response attaches the affidavit of Paul Webster, Vice President of Policy and Health Economics for Air Methods. The Webster affidavit asserts in the previous five years from the Aug. 18, 2017 date of suit, the Defendants have provided emergency ambulance transport from locations in West Virginia to healthcare facilities for more than 1,600 patients without entering in a written agreement for the transport. The total charged for these 1,600 transportations exceeds $70 million. The Webster affidavit puts to rest any question as to whether the Plaintiffs' defined class meets the numerosity and amount in controversy thresholds of CAFA. While the Plaintiffs could argue that the affidavit is over-inclusive as to the amount in controversy (they do not), $70 million far surpasses $5 million. Accordingly, he concludes that the Defendants' removal is proper under CAFA, and the Plaintiffs' motion to remand will be denied. The Judge also finds that a review of the Plaintiffs' factual and legal claims demonstrates that not only is there substantial overlap between the issues and claims in this action and the Colorado Action but that each complaint is almost a verbatim recitation. The only difference involves who is included in the different proposed classes. The Plaintiffs argue (as did the Plaintiffs in the Ohio Action), that sufficient similarity does not exist because their claims rely on the implied contract law of West Virginia. The Judge finds little merit in this assertion because the legal issues and underlying factual claims are exactly the same. Accordingly, he finds that each factor favors the Defendants and that the first- to-file rule is applicable. Akin to the Ohio Action, the Judge finds that a temporary stay, rather than transfer or dismissal, is appropriate. While duplicitous briefing on the issue of federal law would prove unnecessary and could result in a lack of uniformity if the Plaintiffs survive this challenge, the case is grounded in West Virginia contract law and would require the testimony of West Virginia witnesses. Accordingly, the Judge believes that the proper disposition for this case is to defer to the Colorado Action and proceed after a ruling on the motion to dismiss pending in Colorado. For the reasons he stated, Judge Faber denied the Plaintiffs' Amended Motion to Remand, and granted the Defendants' motion to transfer or stay as to their motion to stay and denied as to their motion to transfer. The parties will file a joint status report regarding the status of the Colorado Action within 60 days of the entry of this Memorandum Opinion and Order and will do so every 60 days thereafter. The Clerk is further directed to send a copy of the Memorandum Opinion and Order to all counsel of record. A full-text copy of the Court's May 30, 2018 Memorandum Opinion and Order is available at https://is.gd/7iomvx from Leagle.com. Michael Cox, Tabitha Cox, individually and on behalf of their minor child, & W. C., Plaintiffs, represented by Eric J. Buckner, KATZ KANTOR & PERKINS, James G. Bordas, Jr., BORDAS & BORDAS & Jason E. Causey, BORDAS & BORDAS. Air Methods Corporation & Rocky Mountain Holdings LLC, Defendants, represented by Clifford F. Kinney, Jr. -- ckinney@spilmanlaw.com -- SPILMAN THOMAS & BATTLE, Joseph V. Schaeffer -- jschaeffer@spilmanlaw.com -- SPILMAN THOMAS & BATTLE & Michael A. Cottone -- michael.cottone@bassberry.com -- BASS BERRY & SIMS. ALLSTATE INSURANCE: $6.5MM Settlement in "Etter" Has Prelim OK -------------------------------------------------------------- In the case, JOHN C. ETTER, individually and on behalf of all others similarly situated Plaintiff, v. ALLSTATE INSURANCE COMPANY, et al., Defendant, Case No. C 17-00184 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Plaintiff's motion for preliminary approval of a proposed settlement agreement. This is a class action by Etter against Defendants Allstate Insurance, Allstate Indemnity Co., Allstate Property and Casualty Insurance Co., Allstate Northbrook Indemnity Co., Allstate Insurance Co. of California, and Louis Odiase, an Allstate insurance agent. Etter asserted a single claim for violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, based on allegations that the Defendants sent a single unsolicited facsimile advertisement to Etter on Oct. 11, 2016, without his prior invitation or permission and without the legally-required opt-out notice language. Odiase works as an independent contractor for Allstate and sent fax advertisements using fax broadcasters. On Dec. 26, 2017, the Court certified the following class relating to the Oct. 11, 2016 fax (Dkt. No. 73): Class B: All persons or entities successfully sent a facsimile on or about Oct. 11, 2016, stating, potentially save 40-60% off your Commercial auto insurance, fill out the form below and FAX YOUR REQUEST TO: 510-234-0518, TEL 510-234-0516, OR EMAIL: A026315@ALLSTATE.COM, and If you wish to be removed from our Fax list, please call 888-828-3086. The Plaintiff has now filed an unopposed motion for preliminary approval of a proposed class settlement. The proposed settlement agreement establishes a gross settlement fund of $6,533,250. The Lead counsel intend to seek up to 30% of the gross settlement fund ($1,959,975) for attorney's fees plus reasonable out-of-pocket expenses, as well as an incentive award of $7,500 for the lead Plaintiff -- all to be paid, to the extent approved, from the gross settlement fund . Additionally, the requested third-party settlement administrator estimates administrative costs will amount to $52,940, which would also be paid from the gross settlement fund. The net settlement fund remaining after these deductions (where one-half of the fee award will be paid only at the wrap-up of the fund administration) will then be distributed on a pro rata basis to class members, who will each receive a check in the mail. Any balance remaining after the initial distribution will be redistributed to other class members on a pro rata basis. If the amount is less than $10 per class member, however, and thus not economically feasible to redistribute, the remainder will be paid as cy pres award to either the National Consumer Law Center (the Plaintiff's preference) or the Consumer Federation of America (the Defendants' preference), whichever non-profit organization the Court approves of. Under the proposed settlement agreement, the Plaintiff will recover a settlement fund based on gross recovery of $375 per fax, with each class member receiving their pro rata share. Since TCPA provides for statutory damages at $500 per fax (or recovery of the actual monetary loss, whichever is greater), the Plaintiff's gross recovery represents 75% of the best possible outcome the class could have obtained through litigation. Judge Alsup granted the Plaintiff's unopposed motion for preliminary approval of the class action settlement. He appointed the Class-settlement.com as the settlement administrator. The Court will retain jurisdiction over the litigation and the parties until Dec. 31, 2019. By June 6, 2018 at noon, the Judge directed the counsel to resubmit the proposed notice for Court approval with the following modifications. First, the proposed notice must include, plainly and conspicuously, the estimated amount of attorney's fees, expenses, and incentive award class counsel expect to request. The estimated amount must be expressed as both a percentage and dollar amount. Second, in addition to making clear how the requested attorney's fees, expenses, incentive award, and administration costs will impact the settlement fund, the notice must provide clear estimates (also expressed in dollar amounts) of the net amounts that will be ultimately distributed to class members. All of the foregoing must be explained in plain English in the notice. The notice should also state in Spanish that a Spanish-language version of the notice is available at class counsel's website. Both sides will agree on the form of translation. If the counsel submits a revised version of the proposed notice with the foregoing revisions by May 31, 2018 at 5:00 p.m., then the undersigned judge will try to respond by the following day. In all events, the counsel will submit, along with the proposed notice, a revised proposed timeline for administering the settlement that takes into account the delay in obtaining Court approval for said notice. The Judge vacated the final pretrial conference and trial dates, as well as other pending deadlines in the action, and will be reset if final approval is not granted. A full-text copy of the Court's May 30, 2018 Order is available at https://is.gd/1GptIM from Leagle.com. John C. Etter, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by Brian John Wanca -- bwanca@andersonwanca.com -- Anderson Wanca, pro hac vice, Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP, Robert C. Schubert -- rschubert@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP & Ryan Michael Kelly -- rkelley@andersonwanca.com -- Anderson Wanca, pro hac vice. Allstate Insurance Company, Defendant, represented by Vickie E. Turner -- vturner@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Daniel Lee Delnero -- DELNERODBALLARDSPAHR.COM -- Ballard Spahr LLP, pro hac vice, Kirsten F. Gallacher -- KGallacher@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Kirsten F. Gallacher -- KGallacher@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Meryl Colle Maneker -- mmaneker@wilsonturnerkosmo.com -- Wilson Turner Kosmo & Robert Kenneth Dixon, Wilson Turner Kosmo.& Robert Kenneth Dixon -- rdixon@wilsonturnerkosmo.com -- Wilson Turner Kosmo. Allstate Property and Casualty Insurance Company, Defendant, represented by Vickie E. Turner, Wilson Turner Kosmo LLP, Daniel Lee Delnero, Ballard Spahr LLP, pro hac vice, Kirsten F. Gallacher, Wilson Turner Kosmo LLP, Meryl Colle Maneker, Wilson Turner Kosmo & Robert Kenneth Dixon, Wilson Turner Kosmo. Allstate Northbrook Indemnity Company, Allstate Insurance Company of California & Allstate Indemnity Company, Defendants, represented by Vickie E. Turner, Wilson Turner Kosmo LLP, Daniel Lee Delnero, Ballard Spahr LLP, pro hac vice, Kirsten F. Gallacher, Wilson Turner Kosmo LLP, Meryl Colle Maneker, Wilson Turner Kosmo & Robert Kenneth Dixon, Wilson Turner Kosmo. Louis Odaise, Defendant, represented by Elizabeth Williams, Esq. -- ewilliams@kdvlaw.com -- Kaufman, Dolowich Voluck & Gonzo, John D. Dalton -- jdalton@kdvlaw.com -- Kaufman Dolowich and Voluck, LLP, Ian Edward Anderson -- ianderson@kdvlaw.com -- Kaufman Dolowich Voluck, Richard Bradford Wilbur, Williams Pinelli et al LLP & Sinjan Bose -- sbose@kdvlaw.com -- Kaufman, Dolowich and Voluck, LLP. AMERICAN HOME: 6th Cir. Affirms Freeze of Chesley Assets -------------------------------------------------------- The United States Court of Appeals, Sixth Circuit, affirmed the District Court's judgment granting Plaintiff's Motion for Preliminary Injunction in the case captioned CONNIE MCGIRR, et al., Plaintiffs-Appellees, v. THOMAS F. REHME; WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A., Defendants-Appellants. No. 17- 3519. (6th Cir.) In 1998, three now-disbarred attorneys named Gallion, Cunningham, and Mills gathered a class of plaintiffs to sue American Home Products, manufacturer of the popular diet drug fenfluramine/phentermine (or "fen-phen"), for injuries sustained as a result of the drug's side effects. Stanley Chesley, seeing the profit-wielding potential of such a lawsuit, started his own class action against American Home Products. He then convinced the other attorneys to merge their case with his. That case moved forward under the caption of Darla Guard, et al. v. A.H. Robins Company et al., No. 98-CI-795 (Ky. Cir. Ct. 1998) (the "Guard case"). In 2001, the parties negotiated a settlement for over $200 million and the case was dismissed, all unbeknownst to and without the approval of the class-action plaintiffs. American Home Products left it to Chesley and the other lawyers to divvy up the settlement among the class members as they saw fit. Once the scheme became clear to the class plaintiffs, they filed another lawsuit -- this time against their lawyers. In December 2004, they brought suit alleging misconduct and mismanagement of the Guard case funds. The lawsuit, styled Abbott v. Chesley, was brought in the Boone County Circuit Court in Kentucky. In March 2006, that court granted summary judgment against Chesley's accomplices, but not yet against Chesley. It then entered a $42 million judgment against those lawyers on August 1, 2007, representing the amount that the plaintiffs had been deprived of. Meanwhile, the Kentucky Bar Association investigated Chesley for his role in the Guard case settlement. That investigation led the Kentucky Bar to issue a complaint against Chesley, which was then presented to a state Trial Commissioner. The Commissioner held that Chesley had violated eight separate rules of professional conduct and recommended his permanent disbarment. In June 2011, the Board of Governors unanimously agreed, and in 2013 the Kentucky Supreme Court affirmed that decision. Chesley was required to report his Kentucky disbarment to the Ohio Bar Association too, which would likely impose reciprocal discipline and disbar him from Ohio. Instead, Chesley retired from practicing law in Ohio on April 16, 2013. At the time of his disbarment and subsequent retirement, Chesley was the sole shareholder of an Ohio-based law firm, Waite, Schneider, Bayless, & Chesley, L.P.A. ("WSBC"). Trouble was, in Ohio, Chesley could no longer own and operate a law firm because he was not an admitted attorney. So Chesley got together with a fellow WSBC lawyer -- Thomas Rehme -- and executed a so-called "wind-up agreement" on April 15, 2013. Ostensibly, the agreement's purpose was to help wind up WSBC's business en route to dissolving the firm. It also served as a vessel through which Chesley could move his assets. Through the wind-up agreement, Chesley conveyed all of his WSBC shares to Rehme for no consideration. Meanwhile, both before and after executing that agreement, Chesley funneled $59 million of his personal funds into the firm. This left Chesley with empty pockets to show his judgment creditors when they inevitably came knocking. On August 1, 2014, the Kentucky court that had entered judgment against Chesley's co-conspirators entered the same judgment against him, making him jointly and severally liable for the $42 million. Rather than paying the plaintiffs, Chesley sued them to enjoin them from domesticating and executing their Kentucky judgment against him in Ohio. The Ohio state court judge, Judge Ruehlman, acquiesced in this unusual request and issued an ex parte temporary restraining order forbidding the plaintiffs from domesticating their Kentucky judgment in Ohio. The plaintiffs returned to the Kentucky court with that news. On June 25, 2015, the Kentucky state court judge, Judge Schrand, responded, ordering Chesley to transfer any WSBC distributions to the plaintiffs. Two months later, Chesley returned to Judge Ruehlman and, again inexplicably, managed to receive an order directing him to disregard Judge Schrand's order. The plaintiffs once again returned to Judge Schrand, this time receiving an order that Chesley must immediately transfer his entire ownership interest in WSBC to the plaintiffs. In that order, Judge Schrand declared the wind-up agreement between Chesley and Rehme a sham transaction and ordered that it be disregarded. Yet again, Chesley refused to pay. Judge Schrand then scheduled a show-cause hearing to find out why Chesley was ignoring his orders. He informed Chesley that he must show up for that hearing, scheduled for October 29, 2015. Chesley did not show up. So Judge Schrand issued a warrant for his arrest. Undeterred, Chesley returned to the Ohio courts, and this time sued the local Cincinnati Sheriff--seeking an injunction that would prevent the Sheriff from executing the arrest warrant. That case was also assigned to Judge Ruehlman, who granted the injunction, thereby preventing Chesley's arrest. The plaintiffs were running out of options. An Ohio court blocked them each time they tried to collect on their judgment; but, even if it hadn't, Chesley had already shuttled most of his funds to Rehme. Saddled with this deficit, the plaintiffs finally turned to the federal courts. On April 12, 2016, the plaintiffs sued Chesley for fraudulent conveyances in the Southern District of Ohio. Their goal was simple -- to get an order recognizing Chesley's recent transfers (including the wind-up agreement) as fraudulent and to unwind those transfers. This would return the assets from Rehme to Chesley, thereby allowing the plaintiffs to finally collect their money. The plaintiffs also asked the district court for a preliminary injunction that would freeze Chesley's assets to prevent him from moving those assets outside the court's jurisdictional reach. The district court received evidence and held full-day hearings on this issue on May 26, 2016 and again on July 26, 2016. After those hearings, but before the district court had ruled on the injunction, Chesley's assets were transferred yet again. On August 30, 2016, Rehme, who held all of WSBC's assets (and thus virtually all of Chesley's assets) by virtue of the wind-up agreement, created and incorporated a trust -- "Thomas F. Rehme, Trustee, Inc." He then transferred all of WSBC's assets into that trust on September 1, 2016.6 On September 9, 2016, the trust transferred all of the assets to a third party, Eric Goering, for the purpose of instituting an assignment for the benefit of creditors action (the "ABC action") in an Ohio state probate court. Chesley claims that action was justified -- the firm needed to satisfy WSBC's creditors as part of the winding-up process. But the plaintiffs were Chesley's creditors, not WSBC's, so they likely had no place in that proceeding. On September 13, 2016, immediately after the ABC action was filed, Chesley informed the district court that Rehme no longer had the assets and thus, he argued, the federal district court could not grant relief that would affect those assets. The district court found the timing of the ABC action suspect and entered the temporary restraining order. That order effectively enjoined the ABC action. On April 21, 2017, the district court converted its order into a preliminary injunction. Rehme and WSBC pursued an interlocutory appeal, and we are now tasked with reviewing the district court's decision to grant injunctive relief. On October 5, 2017, the Ohio Supreme Court validated the district court's suspicions. It found the ABC action to be an abuse of process and an attempt to fraudulently evade the plaintiffs' judgment. Shortly thereafter, the ABC action was dismissed. Despite that dismissal, the preliminary injunction freezing Chesley's assets is still in place and subject to the Sixth Circuit's review. The fraudulent conveyance action remains pending. A district court considers four factors when deciding whether to grant a preliminary injunction: (1) the movant's chances of succeeding on the merits; (2) if the movant would likely be permanently harmed absent the injunction; (3) whether the injunction would cause substantial harm to third parties; and (4) whether the injunction would serve the public interest. The concealment and dissipation of assets' likely obtained through fraud constitutes irreparable harm for the purposes of issuing a preliminary injunction. The recently-dismissed ABC action presented an obvious threat of dissipating Chesley's assets. It amounted to a judicially- sanctioned tool that Chesley could use to ship off all of his assets held in WSBC. With that action's dismissal, the most immediate threat has dissolved. However, an entirely new threat has emerged. Without the pending ABC action, Chesley's assets whether they are held by Goering or Rehme are free to move. In that sense, the risk that Chesley will continue to hide his assets away is even greater now that the ABC action has been dismissed. For that reason, and based on much of the evidence already discussed, it is clear that the plaintiffs still face a substantial chance of irreparable harm absent this preliminary injunction. Chesley's actions up to this point have been part of the shell game. The ABC action was just another move in that game. The plaintiffs certainly have reason to believe that he will pick up where he left off were we to lift this injunction. Thus this factor also weighs heavily in favor of affirming the injunction. A full-text copy of the Sixth Circuit's May 31, 2017 Opinion is available at https://tinyurl.com/yd9n5sar from Leagle.com. ARGUED: Donald J. Rafferty -- drafferty@ctks.com -- COHEN, TODD, KITE & STANFORD, Cincinnati, Ohio, for Appellants. Angela M. Ford, 836 Euclid Ave, Lexington, Kentucky, for Appellees. ON BRIEF: Donald J. Rafferty, COHEN, TODD, KITE & STANFORD, Cincinnati, Ohio, for Appellants. Angela M. Ford, Lexington, Kentucky, Brian S. Sullivan -- brian.sullivan@dinsmore.com -- DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for Appellees. AUDIBLE INC: "McKee" Case Transferred to North Carolina ------------------------------------------------------- The case captioned Grant McKee, individually and on behalf of all others similarly situated, Plaintiff, v. Audible, Inc. and Amazon.Com, Inc., Defendants, Case No. 2:17-cv-01941, (C.D. Cal., March 10, 2017), was transferred to the U.S. District Court for the Eastern District of North Carolina on May 11, 2018, under Case No. 18-cv-00211. McKee seeks damages, restitution, and all other relief resulting from unjust enrichment and in violation of the Lanham Act, False Advertising Law, Unfair Competition Law and Automatic Purchase Renewals Law of the California Business and Professions Code, Credit Card Accountability Responsibility and Disclosure Act, the federal Electronic Funds Transfer Act, Gift Certificate Law and Consumers Legal Remedies Act under the California Civil Code. Plaintiff signed up for an audiobook purchasing plan with Audible, an Amazon.com company, in which prepaid credits could be redeemed with them for an equivalent number of audiobooks. However, once members accrue a certain number of prepaid credits, their credits begin to expire to make room for new credits, but were still charged, forfeiting all previously purchased credits. Defendants also failed to disclose to consumers of the required "automatic renewal" payment and cancellation terms at the point of sale. As a result, Plaintiff and Class members have been charged regularly and automatically without being fully informed of the consequences and related cancellation policy as required by law. Also, the terms imposed on Audible members authorize Audible to charge any credit card linked to a member's separate Amazon account if the credit card given directly to Audible is declined for any reason. Defendants have made these misleading representations on their websites and among other places in violation of the federal Lanham Act. Mr. McKee signed up an Audible "Gold Monthly" membership plan. Plaintiff is represented by: Jamin S. Soderstrom, Esq. SODERSTROM LAW PC 3 Park Plaza, Suite 100 Irvine, CA 92614 Tel: (949) 667-4700 Fax: (949) 424-8091 Email: jamin@soderstromlawfirm.com Audible, Inc. is represented by: Jedediah Wakefield, Esq. Armen Nercess Nercessian, Esq. Matthew B. Becker, Esq. FENWICK AND WEST LLP 555 California Street 12th Floor San Francisco, CA 94104 Tel: (415) 875-2300 Fax: (415) 281-1350 - and - Annasara G. Purcell, Esq. FENWICK AND WEST LLP 11911 Second Avenue 10th Floor Seattle, WA 98101 Tel: (206) 389-4510 Fax: (206) 389-4511 AUTO SHOWCASE: Md. Spec. App. Affirms "Hewitt" Arbitration Ruling ----------------------------------------------------------------- In the case, MARK S. HEWITT, v. AUTO SHOWCASE OF BEL AIR, Case No. 0217, September Term, 2017 (Md. Spec. App.), Judge Glenn T. Harrell, Jr. of the Court of Special Appeals of Maryland affirmed the judgment of the Circuit Court for Harford County granting Auto Showcase's petition to compel arbitration. On March 9, 2016, Hewitt purchased conditionally from Auto Showcase a previously-owned 2013 Volkswagen CC Sport. Hewitt paid a down-payment of $1,000, a $290.00 dealer processing charge, a $155 registration fee, and a $120 certificate of title fee. As part of the transaction, Auto Showcase offered dealer- arranged financing to Hewitt. He agreed to this structure of the deal. Hewitt signed a Retail Installment Sales Contract and a Retail Purchase Agreement (both governing the financing terms of the Vehicle) ("RISC"), and a separate Agreement to Arbitrate. The RISC indicated that Sierra Auto Finance, LLC, would provide (if it approved Hewitt's application) the financing for his purchase of the Vehicle. Maryland Code (2015, 2012 Repl. Vol., 2017 Suppl.) of the Transportation Article, governs the terms of this transaction. The RISC here contained, in addition to the contemporaneously executed separate Arbitration Agreement, a broad arbitration provision, to which Hewitt agreed. He executed the documents and took possession of the Vehicle the same day. On April 6, 2016, Sierra Auto Finance, LLC, informed Auto Showcase that it declined to finance Hewitt's purchase of the Vehicle. The parties did not renegotiate a new financing arrangement. Auto Showcase canceled the RISC. It also repossessed the Vehicle.5 On May 17, 2016, Hewitt filed a putative class action suit in the Circuit Court for Harford County against Auto Showcase alleging that it failed to comply with Transp. Section 15.311(d)(2)(ii), which mandated certain fees be refunded to purchasers in the event of the cancellation of a sales agreement. Auto Showcase, in response, filed a petition to compel arbitration and a motion to stay the class action suit pending adjudication of its petition. Hewitt moved for summary judgment, contending that the arbitration provisions in the RISC and the stand-alone Arbitration Agreement were unenforceable because Auto Showcase canceled the RISC pursuant to Section 15.311.3(d)(2), thus rendering void both agreements to arbitrate. Auto Showcase responded that the agreements to arbitrate were severable and enforceable under Maryland law, notwithstanding its cancellation of the RISC. The circuit court denied Hewitt's motion and granted Auto Showcase's petition, holding that a valid contract to arbitrate exists and that it was the intent of the parties to arbitrate all issues that arose if the contract for any reason was breached or faulty. Hewitt, challenges a judgment of the circuit court. He contends that the circuit court erred in reasoning that a stand-alone, contemporaneously-executed, arbitration agreement and a nested arbitration provision in the underlying contract of sale of a previously-owned automobile were not rendered void ab initio by, but rather survived, Auto Showcase's cancellation of the sales contract and repossession of the vehicle after a third-party lender declined to approve financing. Hewitt frames one question for the Court's consideration: Whether, on the uncontroverted facts of the case, Auto Showcase can compel Hewitt to arbitrate a claim he brought against it under Md. Code (2015, 2012 Repl. Vol., 2017 Suppl.) of the Transportation Article ("State's Spot Delivery Law"), when it canceled the Retail Installment Sales Contract underlying the parties' agreements to arbitrate. In the instant case, Judge Harrell finds that a mutually agreed upon (and enforceable) arbitration provision exists in the RISC, which contains also plain language indicating that it will survive any termination of the contract. Moreover, the parties executed an additional, stand-alone Agreement to Arbitrate (containing language paralleling that in the RISC arbitration provision), calling-out as it does specifically, inter alia, the financing of Hewitt's purchase of the Vehicle. The Judge also finds that the April 13, 2015 Fiscal and Policy note to the Spot Delivery Law provides that a violation of the bill is an unfair and deceptive trade practice under the Maryland Consumer Protection Act ("MCPA"), subject to MCPA's civil and criminal penalty provisions. The parties agreed, in the separately executed Arbitration Agreement, that they would settle by binding arbitration any dispute between them regarding any alleged unfair, deceptive, or unconscionable acts or practices as it relates to the financing of Hewitt's purchase of the Vehicle. He holds that Hewitt's claim against Auto Showcase for a violation of Transp. Section 15-311.3(d)(2)(ii) is, in fact, an unfair and deceptive trade practice claim -- one which the parties agreed to arbitrate. Thus, Hewitt's claim for a Transp. Section 15-311.3 violation by Auto Showcase is not the escape mechanism he imagines. In fact, the Spot Delivery Law and what disputes the parties intend to arbitrate are consistent. Hewitt's allegations against Auto Showcase fall within the scope of the arbitration agreements. A full-text copy of the Court's May 30, 2018 Opinion is available at https://is.gd/VqUUm4 from Leagle.com. BAY AREA TOLL: Faces "Montgomery" Suit in California Super. Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Bay Area Toll Authority. The case is styled as William Montgomery, individually and on behalf of those similarly situated, Plaintiff v. Bay Area Toll Authority, Golden Gate Bridge, Highway And Transportation District and Xerox State and Local Solutions Inc., Defendant, Case No. CGC18568084 (Cal. Super. Ct., July 13, 2018). The Bay Area Toll Authority was created by the California State Legislature in 1997 to administer the auto tolls on the San Francisco Bay Area's seven state-owned toll bridges.[BN] The Plaintiff is represented by: Helen I Zeldes, Esq. Coast Law Group, LLP 1140 South Coast Highway 101 Encinitas, CA 92024 Tel: 760-942-8505 Email: helen@coastlaw.com BAYER HEALTHCARE: Court Grants Bid to Dismiss "Curran" Suit ----------------------------------------------------------- In the case, KEVIN CURRAN, Plaintiff, v. BAYER HEALTHCARE LLC, Defendant, Case No. 17 C 7930 (N.D. Ill.), Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Defendants' motion to transfer, and granted their motion to dismiss. The Plaintiff alleges that he purchased Coppertone Sport High Performance SPF 30 sunscreen. Although the bottle says "SPF 30," he alleges that the sunscreen, in fact, had a lower SPF. Specifically, he alleges that Consumer Reports magazine reported in July 2017 that "its own testing" of Coppertone High Performance SPF reflected an SPF lower than 30. In addition, the Plaintiff alleges that he conducted his own independent testing of Coppertone Sport High Performance SPF 30 sunscreen spray, utilizing the methodology for SPF testing mandated by the FDA. He alleges that his testing was conducted in compliance with all FDA testing methods" and concluded that the sunscreen had an average SPF of 13.9. Based on these allegations, the Plaintiff sets out five counts, including breach of warranty (Count I), breach of implied contract (Count II), declaratory and injunctive relief (Count III), unjust enrichment (Count IV) and violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act (Count V). He seeks to bring these claims on behalf of a class of persons who purchased Coppertone Sport High Performance SPF 30 in the United States, except for New Jersey citizens who purchased sunscreen in New Jersey. The Court takes judicial notice of the fact that the Plaintiff's counsel filed in state court in New Jersey, on behalf of a different plaintiff and against the Defendant, a similar case which purports to be a class action on behalf of citizens of New Jersey. Although the Defendant removed that case to the U.S. District Court for the District of New Jersey, that court remanded the case for lack of jurisdiction. The Defendants have filed a motion to transfer the case or, in the alternative, to dismiss. Judge Alonso finds that the Plaintiff has counsel in Chicago and New Jersey, and the Defendants have counsel in Chicago and Washington D.C. It is clear that this litigation will be inconvenient to some people in either court. He also finds that the Plaintiff's claims are based on Illinois law, which the Court, as well as the Seventh Circuit Court of Appeals, considers regularly. Given that the interests of justice favor keeping the case here and given that the case will be inconvenient for one party in either court, the Judge concludes that the Defendant has not made a sufficient showing to upset the Plaintiff's choice of forum. The Defendant's motion to transfer is denied. The Defendant next argues that the Plaintiff has not stated a claim, because he has not sufficiently alleged that his testing was identical. It argues that the Plaintiff has included mere conclusions that the testing was performed "utilizing the methodology for SPF testing mandated by the FDA. Although not every district court would agree, the Judge Court agrees with the Defendant for two reasons. First, the Supreme Court has said not only that conclusory allegations are not entitled to be assumed true, but also that the notice-pleading rule does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Here, the Plaintiff offers nothing more than his conclusion that his testing was the same as is required by the FDA. That is not enough, especially where, as here, the Plaintiff is essentially alleging fraud. Thus, to state a claim, the Plaintiff needs to include some facts about his testing procedure in order to make it plausible that the Defendant's label was not in compliance with the requirements of 21 C.F.R. Section 201.327. Thus, the Plaintiff's complaint is dismissed without prejudice. For these reasons, Judge Alonso denied the Defendant's motion to transfer, and granted the Defendant's motion to dismiss. The Plaintiff's complaint is dismissed without prejudice. The Plaintiff is granted leave to file an amended complaint by June 25, 2018. Status hearing remains set for June 28, 2018 at 9:30 a.m. A full-text copy of the Court's May 30, 2018 Memorandum Opinion and Order is available at https://is.gd/qzdNM5 from Leagle.com. Kevin Curran, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Carl V. Malmstrom -- malmstrom@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLC, Janine L. Pollack -- pollack@whafh.com -- Wolf Haldenstein Adler Freeman & Herz Llp, Stephen DeNittis -- sdenittis@denittislaw.com -- DeNittis Osefchen Prince, P.C. & Theodore Beloyeannis Bell -- tbell@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLC. Bayer Healthcare LLC, Defendant, represented by Eugene A. Schoon -- ESCHOON@SIDLEY.COM -- Sidley Austin LLP, Katherine L. Olson -- KATHERINE.OLSON@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jacquelyn Erin Fradette -- JFRADETTE@SIDLEY.COM -- Sidley Austin LLP, pro hac vice, Jonathan F. Cohn -- JFCOHN@SIDLEY.COM -- Sidley Austin LLP, pro hac vice & Joshua J. Fougere -- JFOUGERE@SIDLEY.COM -- Sidley Austin LLP, pro hac vice. BEHR PROCESS: "Rose" Stayed Pending "Bishop" Deal Bid Approval -------------------------------------------------------------- In the case, LINNE ROSE, individually and on behalf of all others similarly situated, Plaintiffs, v. BEHR PROCESS CORP., BEHR PAINT CORP., MASCO CORP., THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC., Defendants, Case No. 2:17-cv-01754-MJP (W.D. Wash.), Judge Marsh J. Pechman of the U.S. District Court for the Western District of Washington, Seattle, granted the Parties' stipulation to stay the matter pending a decision on the motion for preliminary and final approval of a class action settlement involving three related actions before other district courts (Anderson v. Behr Process Corp., Case No. 1:17-cv-08735 (N.D. Ill.); Bishop v. Behr Process Corp., Case No. 1:17-cv-04464 (N.D. Ill.); and In re Behr, Case No. 8:17-cv-01016 (C.D. Cal.). On May 1, 2018, the Plaintiffs in Bishop filed an amended complaint that incorporated the named plaintiffs in In re Behr and Anderson. Shortly thereafter, on May 3, 2018, plaintiffs in Bishop filed a motion for preliminary approval of a class action settlement. If the settlement agreement in Bishop is granted preliminarily approval, it would resolve all claims against all the Defendants in the action. The Defendants expect that the court in Bishop will consider the motion for preliminary approval on June 27, 2018. If the case is stayed pending consideration of the Bishop Settlement, no Party will suffer any hardship. The Plaintiff and all members of the proposed class in the case have the right to participate in the settlement or opt out of it to pursue his or her own litigation. And, any stay would be limited for any Plaintiff or any member of the proposed class who opts out of the Bishop Settlement. In contrast, if this litigation continues, all Parties would face the prospect of incurring substantial and unnecessary litigation costs. The Parties also acknowledge that the settlement will help resolve this litigation. Thus, the Parties agree that a stay of the action is appropriate, pending a decision on the motion for preliminary approval in Bishop, and, a decision on any forthcoming motion for final approval. The Parties agree to keep the Court informed regarding the status of the settlement of the Bishop case by having Behr file a Status Report by July 13, 2018, and every 60 days thereafter, reporting on the progress of preliminary approval, notice, and final approval of the settlement. Based on this, the Parties stipulated, agreed and moved, and Judge Pechman granted, that the case should be stayed pending a decision on the motion for preliminary approval in Bishop, et al., v. Behr Process Corporation, et al., Case No. 1:17-cv-04464 (N.D. Ill.), and, if preliminary approval is granted, through a decision on any forthcoming motion for final approval. Behr will file a Status Report by July 13, 2018, and every 60 days thereafter, reporting on the progress of preliminary approval, notice, and final approval. A full-text copy of the Court's May 30, 2018 Order is available at https://is.gd/4ZByfe from Leagle.com. Linne Rose, individually and on behalf of all others similarly situated, Plaintiff, represented by Daniel K. Bryson -- dan@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Patrick M. Wallace -- pat@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Scott C. Harris -- scott@wbmllp.com -- WHITFIELD BRYSON & MASON LLP, pro hac vice, Eric Riley Nusser -- eric@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Behr Process Corp., Behr Paint Corp. & Masco Corp., Defendants, represented by Elliot C. Copenhaver -- copenhaver@carneylaw.com - - CARNEY BADLEY SPELLMAN, Emilia L. Sweeney -- Sweeney@carney.com -- CARNEY BADLEY SPELLMAN, Kathleen P. Lally -- kathleen.lally@lw.com -- LATHAM & WATKINS, pro hac vice & Jason M. Kettrick -- kettrick@carney.com -- CARNEY BADLEY SPELLMAN. Home Depot Inc. & Home Depot USA Inc., Defendants, represented by Jeffrey Douglass -- jdouglass@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice, John T. Fetters -- jfetters@millsmeyers.com -- MILLS MEYERS SWARTLING, Robert Alpert -- ralpert@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice & Caryn Geraghty Jorgensen -- cjorgensen@millsmeyers.com -- MILLS MEYERS SWARTLING. BP WEST: Or. App. Affirms $409M in Statutory Damages in UTPA Suit ----------------------------------------------------------------- The Court of Appeals of Oregon affirmed the judgment of the trial court awarding attorney's fees, cost and statutory damages in the cases captioned STEVEN SCHARFSTEIN, individually and on behalf of all other similarly situated persons, Plaintiff-Respondent, and OREGON STATE BAR and Oregon Community Foundation, Respondents, v. BP WEST COAST PRODUCTS, LLC, a Delaware limited liability company, Defendant-Appellant, Nos. 111217046; A162289 (Or. App.). Plaintiff, Steven Scharfstein, alleged that defendant, BP West Coast Products, LLC (BP), violated the Unlawful Trade Practices Act (UTPA) and the Gasoline Price Advertising Rule by illegally assessing and collecting debit card fees from millions of Oregon consumers. Plaintiff alleged that BP engaged in unfair or deceptive gasoline price advertising when it failed to disclose that it charged a 35-cent fee for the use of a debit card to purchase gasoline at ARCO and am/pm service stations as required by the rule. A jury found that BP violated the UTPA when it charged a debit card fee because BP failed to disclose the debit card fee on its street signs and, alternatively, because BP charged more than the total amount registered on the gas pump. The trial court certified the class, which ultimately consisted of 2,046,500 individuals who, between January 1, 2011 and August 30, 2013, bought gasoline at Oregon ARCO or am/pm service stations with a debit card and were charged a 35-cent debit card fee. The trial court entered an amended general judgment that awarded plaintiff and the class attorney fees, costs, and $409,300,000 in statutory damages. BP appeals that judgment, raising 10 assignments of error. The Ore. App. concludes that the trial court did not commit reversible error and, accordingly, affirms. Challenges to OAR 137-020-0150 In its first, second, and third assignments of error, BP challenges various provisions of OAR 137-020-0150, also known as the Gasoline Price Advertising Rule. In BP's second and third assignments, the essence of BP's argument is that the rule does not apply to any flat fee that is not part of the price per gallon of fuel. The regulatory framework of OAR 137-020-0150. ORS 646.930(1)(a) provides that a person operating a service station, business, or other place for the purpose of retailing and delivering gasoline, diesel or other fuel may display on a ign visible from the street the lowest cash prices charged for the sale of the lowest grades of gasoline, diesel or other fuel. The Attorney General has adopted a rule in OAR chapter 137, division 20, declaring unfair or deceptive gasoline price advertising an unlawful trade practice. Is the Attorney General's definition of condition under OAR 137- 020-0150(1)(b) invalid? In BP West Coast Products, LLP v. Dept. of Justice, 284 Or.App. 723, 725, 396 P.3d 244, rev den, 361 Or. 800 (2017), the Court concluded that the legislature had granted the Attorney General broad rulemaking authority under the UTPA to protect consumers by regulating the display of fuel prices including the authority to define condition. In reaching that conclusion, the Court observed that the primary purpose of ORS 646.930 was to protect consumers by enacting fuel station signage requirements, during the 1980's to address situations where some fuel stations were placing signs advertising a low but misleading price for fuel on the street sign that did not match the higher prices they were charging at the pump. After the Court acknowledged the Attorney General's broad grant of rulemaking authority under the UTPA, the Court also concluded that the Attorney General had the statutory authority to define condition to ensure the disclosure of added fees to use credit or debit cards. Is a 35-cent debit card fee a condition that must be disclosed on a service station's street sign under OAR 137-020-0150(3)(d)(A)? BP asserted at trial that the rule defines a condition as one that affects the price per unit of measurement of motor vehicle fuel from the lowest cash price and argued because there is no evidence that the debit fee affects the price per unit of measurement, directed verdict should be granted for BP on the issue of condition. Here, the 35-cent fee that BP charged for the use of a debit card actually made a difference to the price per unit of measurement of motor vehicle fuel from the lowest cash price. If one adds the 35-cent fee to the total cash price of the fuel dispensed, and divides that by the number of gallons dispensed, the result is an increase in the price per unit of measurement of motor vehicle fuel from the lowest cash price. For example, if a customer buys $5.00 of gas in cash and receives two gallons, the cash price per unit is $2.50 per gallon. However, if a customer buys $5.00 of gas and uses a debit card the customer pays $5.35 for two gallons of gas, which results in a debit card price per unit of $2.67 per gallon . In that example, the debit card fee increases the price per gallon by 17 cents. Thus, the 35-cent debit card fee makes an actual difference on the price per unit of measurement of motor vehicle fuel from the lowest cash price. In light of the text of the rule and its context, the other portions of the rule and related laws, and the rule's adoption history, we conclude that the 35-cent debit card fee is a "condition" that affects the price of fuel under OAR 137-020- 0150(1)(b). It is undisputed that BP charged a debit card fee and that BP did not disclose that condition" on its street sign as required by OAR 137-020-0150(3)(d)(A). Thus, the trial court did not err in denying BP's motion for directed verdict. Does OAR 137-020-0150(4)(e) require a debit card fee to be registered on the dispensing device? The Plaintiff's alternative theory of liability was that BP had violated OAR 137-020-0150(4)(e), which requires retailers of motor vehicle fuel to charge the customer only the total amount registered on the dispensing device at the selected unit price. Both theories of liability in this case were based on the same evidence of plaintiff's purchase of gasoline with a debit card, and the evidence of BP's culpable mental state applied to both theories of liability. BP has not shown how sending the theory of liability under OAR 137-020-0150(4)(e) to the jury substantially affected its rights. Therefore, the Court need not resolve whether it was proper to send the question of whether BP violated OAR 137-020-0150(4)(e) to the jury because, even if it was error, it would be harmless. With respect to BP's second assignment, the Court conclude that a 35-cent debit card fee is a condition under OAR 137-020- 0150(1)(b) and, therefore, the trial court did not err in denying BP's motion for directed verdict because there is evidence that BP did not post that condition on its street sign as required by OAR 137-020-0150(3)(d)(A). Ascertainable Loss Resulting From UTPA Violation In a combined argument on BP's fourth and fifth assignments of error, BP relies on Pearson, 358 Or. 88, to urge that plaintiff did not, and could not, prove an ascertainable loss resulting from the alleged UTPA violation on a class-wide basis. BP argues that, under Pearson, the plaintiff was required to prove that he would not have paid the fee if it had been posted on the street sign and included in the amount registered on the dispenser -- in the parlance of Pearson,he was required to prove reliance. In this case, the plaintiff's complaint alleged that defendant violated gasoline price disclosure rules and illegally assessed and collected debit card fees in violation of the rules. More specifically, according to the complaint, BP engaged in a prohibited transaction by charging gasoline purchase debit fees without first properly disclosing the fees as required by OAR 137-020-0150 and in violation of ORS 646.608(1)(u). In other words, the plaintiff's theory of ascertainable loss was that BP illegally charged class members an unlawful 35-cent debit card fee and, therefore, the plaintiff and the class are entitled to recover statutory damages of $200 per class member. Thus, the plaintiff claimed that the illegal overcharge of 35-cents is the ascertainable loss. Unlike the plaintiffs in Pearson, the plaintiff did not allege that BP made misrepresentations or half-truths about the quality or characteristics of the gasoline in violation of ORS 646.608(1)(e) or seek a refund of the purchase price. Nevertheless, BP argues that the plaintiffs were required to prove that they would have relied on a disclosure that BP failed to provide, but was legally required to provide before charging the 35-cent debit card fee. As the Court have noted, proof that a party justifiably relied on a representation is not necessary when the representation involves a matter about which the party making it is legally required to inform the other. In sum, on the issue of causation, BP was not entitled to a verdict as a matter of law and, therefore, the trial court did not err in denying its motion for directed verdict. Likewise, the trial court did not err in denying BP's motion to decertify the class on BP's related theory that, because reliance was an element of plaintiff's UTPA claim, reliance could not be proved on a class-wide basis. Due Process Challenge to Statutory Damages In BP's tenth assignment of error, BP argues that the trial court erred in denying defendant's alternative motions to strike the statutory damages or to decertify the class because ORS 646.638(8)(a), as applied, violates due process. BP could have raised its constitutional challenge to the statutory damages either through a motion for directed verdict or a motion to strike the statutory damages made before the jury's discharge, or both. BP, however, did neither. Instead, it waited until the jury was discharged and then, months later, raised its objection for the first time. As a result, BP's motion to strike the statutory damages was untimely. The Court agrees with the plaintiff that BP's delay prejudiced the plaintiff because he made the decision not to seek actual damages and only seek UPTA statutory damages, a decision that was impossible to alter once the verdict had been returned and the jury had been discharged. Likewise, if BP had argued that the standard articulated in Gore, 517 US at 574-75, applied before the jury returned its verdict, the plaintiff could have presented different evidence in the statutory damage case if the court had been given the opportunity to instruct the parties and jury that a higher standard for statutory damages applied. For those reasons, the Court rules that the trial court did not err when it rejected BP's untimely motion to strike the request for statutory damages. BP's sixth assignment of error is not preserved and, therefore, the Court declined to address it. The Court also rejected BP's seventh, eighth, and ninth assignments of error without discussion. A full-text copy of the Or. App.'s May 31, 2017 Opinion is available at https://tinyurl.com/yd2etg36 from Leagle.com. William F. Gary -- william.f.gary@harrang.com -- argued the cause for appellant. With him on the briefs were Sharon A. Rudnick -- sharon.rudnick@harrang.com -- Susan Marmaduke -- susan.marmaduke@harrang.com -- Nathan R. Morales, and Harrang Long Gary Rudnick P.C. W. Eugene Hallman -- office@Hallman.pro -- argued the cause for respondent Steven Scharfstein. With him on the brief were David F. Sugerman -- david@davidsugerman.com -- Tim Alan Quenelle -- tim.quenelle@gmail.com -- Amy Johnson, Joshua Ross -- jross@stollberne.com -- and Hallman Law Office. No appearance for respondents Oregon State Bar and Oregon Community Foundation. Jill Gibson -- jill@gibsonlawfirm.org -- and Gibson Law Firm, LLC; Doug Kantor, Kate Jensen, and Steptoe & Johnson LLP, filed the brief amicus curiae for National Association of Convenience Stores. Janet M. Schroer -- jms@hartwagner.com -- and Hart Wagner LLP filed the brief amicus curiae for Associated Oregon Industries. Robert M. McKenna -- rmckenna@orrick.com -- Washington, Daniel J. Dunne -- ddunne@orrick.com -- and Orrick, Herrington & Sutcliffe LLP filed the brief amicus curiae for The Chamber of Commerce of the United States of America and National Association of Manufacturers. BRAKE MASTERS: Faces "Durgin" Suit in Sacramento California ----------------------------------------------------------- A class action lawsuit has been filed against Brake Masters of Sacramento LLC. The case is captioned as Mike Durgin, individually and on behalf of all others similarly situated, Plaintiff v. Brake Masters of Sacramento LLC, and Does 1-50, Defendants, Case No. 34-2018-00235816-CU-OE-GDS (Cal. Super., Sacramento Cty., June 29, 2018) Brake Masters of Sacramento LLC operates as a car repair and maintenance center. The Company offers express lube, filter, oil change, alignment, fluid and cooling system flush, brake inspection, air conditioning, batteries, as well as electrical repairs. [BN] The Plaintiff is represented by Darren M Cohen, Esq. BRITISH AIRWAYS: Has Made Unsolicited Calls, Blengino Suit Says --------------------------------------------------------------- CHARLENE S. BLENGINO, individually and on behalf of all others similarly situated, Plaintiff v. BRITISH AIRWAYS PLC; and DOES 1 through 50, inclusive, Case No. 18910992 (Cal. Super., Alameda Cty., June 28, 2018) seeks to stops the Defendant's practice of sending unsolicited prerecorded messages to the cellular telephones of the Plaintiff without the her prior express written consent. British Airways PLC provides air transportation services. The Company offers scheduled air services for passengers, freight, and mail, airline marketing, aircraft financing, maintenance, holiday packages, and insurance. British Airways serves customers worldwide. [BN] The Plaintiff is represented by: Eric A. Grover, Esq. Alexander S. Vahdat, Esq. KELLER GROVER LLP 1965 Market Street San Francisco, CA 94103 Telephone: (415) 543-1305 Facsimile: (415) 543-7861 E-mail: eagrover@kellergrover.com rspencer@kellergrover.com - and - Scot Bernstein, Esq. LAW OFFICES OF SCOT D. BERNSTEIN, A PROFESSIONAL CORPORATION 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Telephone: (916) 447-0100 Facsimile: (916) 933-5533 E-mail: swampadero@sbernsteinlaw.com CASTLEROM HOLDING: Plaintiffs Directed to Turn Over Lab Reports --------------------------------------------------------------- In the case, BMW GROUP, 2055 CRUGER, LLC, SKIVJANI REALTY CORP., GLENHILL ASSOCIATES, LLC & 498 SEVENTH, LLC, on behalf of themselves and all Others similarly situated, Plaintiffs, v. CASTLEROM HOLDING CORP., f/k/a, CASTLE OIL CORPORATION, Defendant, Docket No. 650910/2013 (N.Y. Sup.), Judge Shirley Werner Kornreich of the Supreme Court, New York County, (i) granted the Defendant's motion to compel the Plaintiffs to turn over documents to the extent of directing the Plaintiffs to turn over all laboratory reports that tested the oil, Marjorie J. Clarke's communications regarding the testing, and the underlying facts of Anthony P. Valenti's investigation and his communications regarding that investigation; and (ii) denied the Plaintiffs' motion for a protective order. The Plaintiffs own commercial buildings in New York City, which use heating systems designed to burn No. 4 and No. 6 grades of fuel oil. The Defendant supplied fuel oil to the Plaintiffs' buildings. The Plaintiffs allege that, although they paid for No. 4 and No. 6 grade fuel oil, they were supplied a blended oil product that did not meet the requisite standards for the purchased fuel oil. They bring the action as a putative class action on behalf of all persons or entities in the Service Area who ordered and paid for No. 4 Fuel Oil and No. 6 Fuel Oil from Castle, and who instead received Adulterated Oil. The Second Amended Complaint alleges causes of action for Breach of Express Warranty under the Uniform Commercial Code ("UCC"), Breach of Implied Warranty (warranty of merchantability) under the UCC, and breach of contract. The Plaintiffs filed their original summons and complaint on March 15, 2013. The class representatives then were BMW Group, LLC, Glenhill Associates, LLC, and 498 Seventh, LLC. That complaint alleged causes of action for fraud, violation of the Magnuson-Moss Warranty Act, breaches of express and implied warranties under the UCC, a violation of New York General Business Law Section 349 ("GBL"), breach of contract, and unjust enrichment. The Plaintiffs contended that Castle purchased reprocessed "Waste Oil", blended it with heating oil to create "Adulterated Oil" and sold 3,000 gallons of this Adulterated Oil to BMW on Nov. 12, 2012. They asserted that laboratory testing of the oil delivered to BMW on Nov. 12, 2012 confirmed that it had properties significantly outside the legal specifications for No. 4 oil. Based on these pleadings, the Plaintiffs contended that they were overcharged and the Adulterated Oil provided less heat and harmed their heating equipment and the environment. Further, they claimed that they were not aware of Castle's breaches of warranty at any time during which they were purchasing the oil. They also contended that the oil was not merchantable because it would not have passed without objection in the trade, was not of fair average quality, suitable or fit for use as heating oil. A few days later, on March 18, 2013, the Plaintiffs brought an Order to Show Cause seeking preliminary and temporary injunctions enjoining Castle from selling any fuel oil purporting to be 'No. 4 Fuel Oil' or 'No. 6 Fuel Oil' which is adulterated with waste oil or fails to conform to New York code standards. Annexed to the application was an affidavit from a licensed private investigator, Valenti, who worked for Stroz Friedberg, LLC. Valenti averred that he had investigated the allegations of the Plaintiffs and had determined that Castle had been delivering adulterated Oil; that Castle received deliveries of waste oil by the truckload from County Oil and its sister companies; that Castle received waste oil by barge; that Castle blended the waste oil and delivered this adulterated product to its customers; that Valenti arranged to test a shipment of fuel oil delivered to a Castle customer on Nov. 12, 2012; that the results of the testing confirmed that the fuel oil sold as No. 4 fuel oil did not conform to the specifications for such oil; that the oil sold created substantial risk to heating systems; and that, among other things, "the results of the testing" informed his belief that Castle sold adulterated fuel oil. In its brief supporting the injunction requests, the Plaintiffs relied on the laboratory tests of the Nov. 12, 2012 delivery. Based on these assertions, the Court partially granted the request for a temporary injunction. The Plaintiffs submitted supplemental documentation in support of their preliminary injunction on April 8, 2013, from both their counsel and Valenti. Also annexed to the April 8, 2013 documentation was an affidavit from Clarke, an environmental scientist. She based her affidavit on her expertise in the field of waste-to-energy/incinerator emissions control and on her review of documentation provided to her by the Plaintiffs. She stated that she reviewed a 'Safety- Kleen Laboratory Analytical Report' dated Aug. 20, 2012 concerning a shipment of processed waste oil which was reportedly blending into fuel oil by Castle Oil. She averred that the tested oil had a lower heat content than No. 4 and No. 6 oil; that the oil interfered with the efficient operation of the heating system and led to increased fuel use; that the amount of water and sediment in the tested oil was higher than acceptable levels in New York, that it increased pollution and decreased burner efficiency; that it corroded burners and facilitated bacterial growth; and that its flash point was "substantially above the minimum threshold for fuel oil," including for No. 4 and No. 6 oil. Ultimately, the Court denied a preliminary injunction. The Plaintiffs subsequently filed an Amended Complaint on May 21, 2013. The Plaintiffs' allegations were similar to those in the original complaint; they asserted causes of action for fraud, negligent misrepresentation, breaches of express and implied warranties, breach of the Magnuson-Moss Warranty Act, breach of GBL Section 349 and unjust enrichment. On Oct. 17, 2013, the Court dismissed the causes of action asserting negligent misrepresentation, breach of the Magnuson- Moss Warranty Act, breach of GBL Section 349 and unjust enrichment. The SAC was filed on Nov. 1, 2013. The Court granted the Defendant's motion to dismiss the putative class actions on Sept. 5, 2014. That decision was reversed by the Appellate Division on March 15, 2016. The Appellate Court relied in its decision on the Valenti affidavit, the laboratories' testing, and the parade of horribles alleged by plaintiffs which supposedly showed the oil sold was adulterated. Castle brings the motion to compel the Plaintiffs to turn over documents. The Plaintiffs cross-move for protection of the subject documents from disclosure on the grounds of attorney- client privilege, of work product privilege and that the documents were prepared in anticipation of litigation. The issues before the Court are whether the documents are merely factual and not privileged, whether there is a special need to turn over documents regarding investigations conducted by plaintiffs prior to litigation, at issue waiver, and selective disclosure of the documents. Judge Kornreich finds that the documents and materials prepared by the testing laboratories must be turned over. These clearly are facts and not privileged. Likewise, the underlying facts of Valenti's investigation should be turned over. In addition, even if the testing and underlying facts of Valenti's investigation were privileged, it is trial preparation and necessity dictates that it be turned over. The tests occurred upon oil that no longer exists and cannot be replicated. The Defendant cannot obtain the substantial equivalent of the results, which may prove exculpatory, and, therefore, necessity requires their disclosure. Finally, the Judge finds that the test materials, Valenti's investigation, and Clarke's findings were waived both because of at issue waiver and selective disclosure. The Plaintiffs affirmatively placed the subject matter of these materials at issue in litigation when they used them to seek an injunction and to create the original and first amended complaints. Indeed, the Court and the Appellate Division relied on the tests and Valenti's and Clarke's findings in making determinations in the case. She says the invasion of the privilege, if it exists, is required to determine the validity of the Plaintiffs' claims and to fashion a defense; assertion of the privilege would deprive the Defendant of vital information. Then too, the Plaintiffs disclosed only portions of the tests and Valente's and Clarke's communications in their court papers. They cannot use excerpts of privileged communications and documents to make out their case and then assert the privilege to shield the remainder of the material. For these reasons, Judge Kornreich granted the Defendant's motion to the extent of directing the Plaintiffs to turn over all laboratory reports that tested the oil, Clarke's communications regarding the testing, and the underlying facts of Valenti's investigation and his communications regarding that investigation. By June 14, 2018, the Plaintiffs are to submit a specific and detailed privilege log regarding the remainder of the demanded documents. The Judge denied the Plaintiffs' motion for a protective order. A full-text copy of the Court's May 30, 2018 Order is available at https://is.gd/9D0XUI from Leagle.com. CHARMING CHARLIE: Removes "Brinkman" Suit to E.D. Louisiana ----------------------------------------------------------- The Defendant in the case of April Brinkman, individually and on behalf of all others similarly situated, Plaintiff v. Charming Charlie LLC, filed a notice to remove the lawsuit from the Civil District Court of the State of Louisiana, County of New Orleans (Case No. 2018-4467 "J-15") to the U.S. District Court for the Eastern District of Louisiana on July 29, 2018, and assigned Case No. 2:18-cv-06377-SM-JVM (E.D. La., July 29, 2018). The case is assigned to Judge Susie Morgan and referred to Magistrate Judge Janis Van Meerveld. Charming Charlie LLC operates fashion accessory stores for women in the United States. Charming Charlie LLC operates as a subsidiary of Charming Charlie Holdings Inc. [BN] The Plaintiff is represented by: Roberto L. Costales, Esq. COSTALES LAW OFFICE 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: rlc@beaumontcostales.com - and - Jonathan Mille Kirkland, Esq. BEAUMONT COSTALES LLC 3801 Canal St, Ste 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: jmk@beaumontcostales.com - and - William Henry Beaumont, Esq. WILLIAM H. BEAUMONT LAW 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534-5005 E-mail: whb@beaumontcostales.com The Defendant is represented by: Raymond C. Lewis, Esq. DEUTSCH KERRIGAN LLP 755 Magazine Street New Orleans, LA 70130 Telephone: (504) 581-5141 Facsimile: (504) 566-4077 rlewis@deutschkerrigan.com - and - Victor M. Jones, Esq. DEUTSCH KERRIGAN LLP 755 Magazine Street New Orleans, LA 70130 Telephone: (504) 581-5141 E-mail: vjones@deutschkerrigan.com CHSPSC LLC: "Mounce" ADTPA Suit Settlement Has Prelim Approval -------------------------------------------------------------- In the case, JESSICA MOUNCE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CHSPSC, LLC; NORTHWEST ARKANSAS HOSPITALS, LLC d/b/a NORTHWEST MEDICAL CENTER; and PROFESSIONAL ACCOUNT SERVICES, INC., Defendants, Case No. 5:15- CV-05197 (W.D. Ark.), Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, granted the Plaintiff's Motion for Preliminary Approval of Class Action Settlement. Currently before the Court are the Plaintiff's Motion and Suggestions in Support of Preliminary Approval of Class Action Settlement, to which she has attached a Settlement Agreement signed by the parties and certain documents to be sent to the class members. The parties executed their Settlement Agreement on April 26, 2018. They now ask the Court to preliminarily approve their settlement, appoint a representative Plaintiff, appoint the settlement class counsel, and permit the class counsel, by and through a designated claims administrator, to mail the proposed Notice documents and Claim Form to the 925 class members. After reviewing the Settlement Agreement and attached forms shortly after they were filed, the Court entered an Order on May 10, 2018, directing the parties to file a joint supplement to the Motion that answered specific questions the Court had about the settlement. The parties filed their Joint Supplement on May 16, 2018. Thereafter, the Court suggested to the parties that they make certain amendments to the Notice documents and Claim Form, to more accurately reflect the possible dollar amounts that each class member could expect to receive by participating in the settlement. The parties agreed to the Court's suggestion, and on May 25, 2018, the parties jointly submitted revised Notice documents and a revised Claim Form via email. Upon reviewing the revised documents, the Motion, and the Settlement Agreement, Judge Brooks is now well satisfied that the proposed settlement merits preliminary approval. Accordingly, he granted the Plaintiff's Motion and Suggestions in Support of Preliminary Approval of Class Action Settlement. Pursuant to Federal Rule of Civil Procedure 23, the Settlement Class is defined as all Arkansas residents who since April 30, 2010 through Oct. 31, 2017, received any type of healthcare treatment from any entity located in Arkansas that is owned, controlled, managed and/or affiliated with the Defendants, and: (i) such treatment was covered by valid, in network, commercial health coverage; (ii) the billing charges regarding such treatment were not timely submitted to the commercial health carrier; and (iii) the Defendants obtained payments for such treatment as a result of asserting third-party medical liens, submitting claims for medical payments coverage, and/or seeking payment directly from the patients. The Judge appointed Mounce as the Class Representative; attorneys Ralph K. Phalen, Mitchell L. Burgess, Shawn Daniels, and Sarah Jewell as the Class Counsel; and Dahl, Inc. as the Claims Administrator. The Court will hold the final approval hearing on Sept. 21, 2018 at 3:00 p.m. In accordance with the provisions of the Settlement Agreement, the Claims Administrator is directed to mail the Court-approved Notice and Claim Forms to the Settlement Class on or before 30 days from the date of the Order. No later than 10 days prior to the Final Approval Hearing, Dah will file with the Court and serve on the Class Counsel an affidavit or declaration stating that the mailing of the Notice and Claim Forms has been completed. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/qHupJX from Leagle.com. Jessica Mounce, Individually, and on Behalf of All Others Similarly Situated Plaintiffs, Plaintiff, represented by Jason W. Earley, Hare, Wynn, Newell & Newton, LLP, Mitchell Burgess -- mitch@burgesslawkc.com -- Burgess Green P.C., Ralph Phalen -- phalenlaw@yahoo.com -- Attorney at Law, Shawn B. Daniels, Hare, Wynn, Newell & Newton, L.L.P. & Sarah Coppola Jewell, Hare Wynn Newell Newton LLP. CHSPSC, LLC, A Delaware Corporation, Northwest Arkansas Hospitals, LLC., a Delaware Limited Liability Company & Professional Account Services, Inc., a Tennessee Corporation, Defendants, represented by Eric Berger -- eberger@wlj.com -- Wright, Lindsey & Jennings, LLP, Gary D. Marts, Jr. -- gmarts@wlj.com -- Wright, Lindsey & Jennings & Gordon S. Rather, Jr.- grather@wlj.com -- Wright, Lindsey & Jennings LLP. CITIZENS INC: Court Dismisses "Gamboa" Suit ------------------------------------------- Judge Robert Pitman of the U.S. District Court for the Western District of Texas, Austin Division, granted the Defendants' Motion to Dismiss the case, JUAN GAMBOA, individually and on behalf of all others similarly situated, Plaintiff, v. CITIZENS, INC., et al., Defendants, Case No. 1:17-CV-241-RP (W.D. Tex.). Lead Plaintiffs Gamboa and Correy Hemingway filed the putative class action on March 16, 2017. Defendants Citizens, Inc.; Harold Riley; Rick Riley; Kay Osbourn; Geoffrey Kolander; and David Jorgensen subsequently filed a Motion to Dismiss, which was referred to U.S. Magistrate Judge Andrew Austin for a report and recommendation pursuant to 28 U.S.C. Section 636(b) and Rule 1(d) of Appendix C of the Local Rules. Magistrate Judge Austin subsequently entered a report and recommendation recommending that Judge Pitman grants the motion in full and dismisses the Plaintiffs' case with prejudice. Because the report and recommendation was entered on May 7, 2018, the Plaintiffs' objections were due by May 21, 2018. No objections were received. Where no party has objected to the magistrate judge's findings, the Judge reviews the report and recommendation for clear error. After careful consideration, he adopts the magistrate judge's report and recommendation. He finds that the magistrate judge's conclusion and recommendation are neither clearly erroneous nor contrary to law. For the reasons given, Judge Pitman adopted the magistrate judge's report and recommendation as the opinion of the Court. He granted the Defendants' Motion to Dismiss and dismissed with prejudice the Plaintiffs' claims against all the Defendants. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/n3PGn5 from Leagle.com. Juan Gamboa, Individually, And On Behalf Of All Others Similarly Situated, Plaintiff, represented by Laurence Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Phillip Kim -- pkim@rosenlegal.com -- The Rosen Law Firm, P.A., pro hac vice & Yusuf Ahmad Bajwa -- ybajwa@sandersbajwa.com -- Sanders Bajwa LLP. Citizens, Inc., Harold E. Riley, David S. Jorgensen, Geoffrey M. Kolander, Kay E. Osbourn & Rick D. Riley, Defendants, represented by Gerard G. Pecht -- gerard.pecht@nortonrosefulbright.com -- Norton Rose Fulbright US LLP, Mark T. Oakes -- mark.oakes@nortonrosefulbright.com -- Norton Rose Fulbright US LLP & Peter Andrew Stokes -- peter.stokes@nortonrosefulbright.com -- Norton Rose Fulbright US LLP. CONVERGYS CORPORATION: "Abner" Suit Alleges FLSA Violation ---------------------------------------------------------- Shawn Abner, individually and on behalf of all others similarly situated v. Convergys Corporation, Case No. 1:18-cv-00442 (S.D. Ohio, June 28, 2018), seeks to recover compensation, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 and the Kentucky Wage and Hour Act. The Plaintiff Abner was employed by Convergys as Tech Support from approximately 2017 until February 2018. The Defendant Convergys is a customer management outsourcing business, that is they operate call centers to provide customer support on behalf of their clients. Convergys is a publicly traded, global customer management firm operating throughout the United States, including Cincinnati, Ohio. [BN] The Plaintiff is represented by: Robert E. DeRose, Esq. Trent R. Taylor, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Floor Columbus, OH 43215 Tel: (614) 221-4221 Fax: (614) 744-2300 E-mail: bderose@barkanmeizlish.com ttaylor@barkanmeizlish.com CREDIT CONTROL: Aronne Alleges Wrongful Debt Collections -------------------------------------------------------- LARA ARONNE, individually and on behalf of all others similarly situated, Plaintiff v. CREDIT CONTROL, LLC, and JANE AND JANE DOES NUMBERS 1 THROUGH 10, Defendants, Case No. 2:18-cv-03744 (E.D.N.Y., June 28, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Credit Control, LLC provides financial services. The Company provides early out solutions, collections, and debt settlement services. Credit Control serves customers in the State of Missouri. [BN] The Plaintiff is represented by: Abraham Kleinman, Esq. KLEINMAN LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: (516) 522-2621 Facsimile: (888) 522-1692 E-mail: akleinman@kleinmanllc.com CREDIT CONTROL: Kendrick Sues over Debt Collection Practices ------------------------------------------------------------ Stephania Kendrick, individually and on behalf of all others similarly situated, Plaintiff v. Credit Control, LLC, and John Does 1-25, Case No. 1:18-cv-03770 (E.D.N.Y., June 28, 2018) seeks to stop the Defendants' unfair and unconscionable means to collect a debt. The case is assigned to Chief Judge Dora Lizette Irizarry and referred to Magistrate Judge Steven M. Gold. Credit Control, LLC provides financial services. The Company provides early out solutions, collections, and debt settlement services. Credit Control serves customers in the State of Missouri. [BN] The Plaintiff is represented by: Benjamin J. Wolf, Esq. LAW OFFICE OF JOSEPH K. JONES, LLC 555 Fifth Avenue, Suite 1700 New York, NY 10017 Telephone: (646) 459-7971 Facsimile: (646) 459-7973 E-mail: bwolf@legaljones.com - and - Joseph Karl Jones, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 461-0002 Facsimile: (974) 244-0019 E-mail: jkj@legaljones.com CROWDERGULF LLC: Bil-Jim Defendants in "Palmisano" Suit Dismissed ----------------------------------------------------------------- In the case, JOSEPH PALMISANO, et al., Plaintiff, v. CROWDERGULF, LLC, et al., Defendants, Civil Action No. 17-cv-9371 (PGS)(TJB) (D. N.J.), Judge Peter G. Sheridan of the U.S. District Court for the District of New Jersey granted Defendants James R. Johnson, David L. Johnson, and Carolyn J. Hordichuk ("Bil-Jim Defendants")'s Motion to Dismiss Plaintiffs' Complaint, as it relates to the Bil-Jim Defendants. This is a putative class action based on alleged violations of the New Jersey Prevailing Wage Act ("PWA"). Plaintiffs Palmisano, Jay Hajeski, Sean Wall, and Walter Everett filed the complaint, individually and behalf of others similarly situated, based on Defendants CrowderGulf; Bil-Jim Construction Co., Inc.; Maple Lake, Inc.; R. Kremer and Son Marine Contractors, LLC; John C. Ramsay; Lyman W. Ramsay, Jr.; James R. Johnson, Jr.; David L. Johnson; and Hordichuk failure to properly pay the Plaintiffs their prevailing wage for work they performed on public work projects. In January 2013, CrowderGulf entered into contracts with the State of New Jersey to perform waterway debris removal services, from the damage caused by Hurricane Sandy. On Feb. 28, 2013, CrowderGulf subcontracted its work with the State to Bil-Jim, which then subcontracted with other entities, including Kremer Marine, to perform various services under the Sandy Project. Plaintiffs Palmisano and Hajeski were both employees with Kremer Marine and worked as, among other things, tug boat operators and operator engineers on the Sandy Project. According to the Complaint, from May 2013 to September 2013, both worked in excess of 40 hours per week, over 8 hours per day, more than a single shift in a day, on weekends, and on holidays. Similarly, Plaintiffs Wall and Everett worked for Bil-Jim as, among other things, mechanics and engineers on the Sandy Project. From November 2012 to March 2013, both claimed to have worked in excess of 40 hours per week, over 8 hours per day, more than a single shift in a day, on weekends and on holidays. According to the Complaint, the Sandy Project was paid entirely out of the funds of a "public body" and involved work performed exclusively on land owned by a public body, as within the meaning of N.J.S.A. Moreover, the Plaintiffs claim they did not receive prevailing wages for the work they performed on the Sandy Project, including but not limited to full prevailing wages, 'Shift Differentials,' PWA-defined 'Overtime,' 'Double Time' for work performed on Sundays and Holidays, and/or other PWA benefits -- as delineated in the PW Rate Sheets. In addition to bringing suit against Bil-Jim, the Plaintiffs have named as Defendants Bil-Jim's officers: President, James Johnson; VP, David Johnson; and Secretary/Treasurer Hordichuk. The Plaintiffs claim that, as officers, principals, directors, supervisors, or managers, they were responsible for Bil-Jim's failure to comply with the PWA -- to their employees and to the employees of their subcontractors and sub-subcontractors. As such, Plaintiffs claim, the Defendants violated the PWA by failing to pay Plaintiffs for the subject public work, at prevailing wage rates ('Base' plus 'Fringe' rate), 'Shift Differentials,' 'Overtime,' 'Double Time' for work performed on Sundays and Holidays, and/or other PWA benefits -- all as defined in the applicable PW Rate Sheets; and therefore the Defendants are liable to the Plaintiffs. The Court was presented with essentially the same factual allegations in a related matter, Wall, et al. v. Bil-Jim Construction Co., Inc., et al., 15-cv-8982 (D.N.J. Mar. 7, 2016). In that case, the Court granted the Bil-Jim Defendants' Motion to Dismiss for failure to state a claim. In a written order, the Court granted the Plaintiffs 30 days to file an amended complaint to address these deficiencies, which they did not do. The Bil-Jim Defendants again seek dismissal of the Plaintiffs' Complaint, since individual liability is not permissible under the PWA. Judge Sheridan holds that because the Bil-Jim Defendants cannot be held individually liable under the PWA, the Defendants' Motion to Dismiss is granted. Moreover, because the Court in Wall gave the Plaintiffs an opportunity to amend their complaint, which they failed to do so, and since the present matter has the same deficiencies that plagued the prior cause of action, further opportunity to amend would be futile. Therefore, he dismisses the Plaintiff's Complaint with prejudice. The Judge briefly notes that the Plaintiffs' collateral estoppel argument is misplaced. The Plaintiffs seek to invoke the doctrine of collateral estoppel to deny the Defendants' motion to dismiss, since this issue was previously adjudicated in the Wall case. He says fatal to the Plaintiffs' use of the doctrine is the fact that the Defendants prevailed in the earlier proceeding; as such, offensive estoppel is inapplicable. Therefore, the Plaintiffs' equitable estoppel argument is without merit. Having carefully reviewed and taken into consideration the submissions of the parties, as well as the arguments and exhibits therein presented, and for good cause shown, and for all of the foregoing reasons, Judge Sheridan granted with prejudice the Defendants' Motion to Dismiss. A full-text copy of the Court's May 29, 2018 Memorandum and Order is available at https://is.gd/00p1tY from Leagle.com. JOSEPH PALMISANO, Individually and on behalf of all others similarly situated, JAY HAJESKI, Individually and on behalf of all others similarly situated, SEAN WALL, Individually and on behalf of all others similarly situated & WALTER EVERETT, Individually and on behalf of all others similarly situated, Plaintiffs, represented by JESSICA STEIN ALLEN, KEEFE LAW FIRM & PAUL A. DIGIORGIO, KEEFE LAW FIRM. CROWDERGULF, LLC, JOHN C RAMSAY & LYMAN W RAMSAY JR., Defendants, represented by JOHN F. CASEY -- jcasey@csglaw.com -- Chiesa Shahinian & Giantomasi PC. BIL-JIM CONSTRUCTION CO., INC. & MAPLE LAKE, INC., Defendants, represented by GAVIN J. ROONEY -- grooney@lowenstein.com -- LOWENSTEIN SANDLER, PC, ILANA SARAH LEVIN -- ilevin@csglaw.com -- CHIESA SHAHINIAN & GIANTOMASI PC, NAOMI DELEEUW BARROWCLOUGH -- nbarrowclough@lowenstein.com -- LOWENSTEIN SANDLER PC, RONALD L. TOBIA -- rtobia@csglaw.com -- CHIESA SHAHINIAN & GIANTOMASI PC & RYAN PATRICK O'CONNOR -- roconnor@csglaw.com -- CHIESA SHAHINIAN & GIANTOMASI PC. R. KREMER AND SON MARINE CONTRACTORS, LLC, Defendant, represented by RAYMOND D. BOGAN -- rbogan@lawyernjshore.com -- SINN, FITZSIMMONS, CANTOLI, BOGAN & WEST. R. KREMER AND SON MARINE CONTRACTORS, LLC, Cross Claimant, represented by RAYMOND D. BOGAN, SINN, FITZSIMMONS, CANTOLI, BOGAN & WEST. R. KREMER AND SON MARINE CONTRACTORS, LLC, Cross Defendant, represented by RAYMOND D. BOGAN, SINN, FITZSIMMONS, CANTOLI, BOGAN & WEST. BIL-JIM CONSTRUCTION CO., INC. & MAPLE LAKE, INC., Cross Defendants, represented by GAVIN J. ROONEY, LOWENSTEIN SANDLER, PC, ILANA SARAH LEVIN, CHIESA SHAHINIAN & GIANTOMASI PC, NAOMI DELEEUW BARROWCLOUGH, LOWENSTEIN SANDLER PC, RONALD L. TOBIA, CHIESA SHAHINIAN & GIANTOMASI PC & RYAN PATRICK O'CONNOR, CHIESA SHAHINIAN & GIANTOMASI PC. CROWDERGULF, LLC, JOHN C RAMSAY & LYMAN W RAMSAY JR., Cross Defendants, represented by JOHN F. CASEY, Chiesa Shahinian & Giantomasi PC. CUSHMAN & WAKEFIELD: Doesn't Pay OT to Appraisers, Setz Says ------------------------------------------------------------ RYAN SETZ, individually and on behalf of all others similarly situated, Plaintiff v. CUSHMAN & WAKEFIELD, INC., Defendant, Case No. ______ (D.C. Sup., June 29, 2018) is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standards Act. Mr. Setz was employed by the Defendant as an appraiser from May 2017 to October 2017. Cushman & Wakefield, Inc. provides real estate services for owners, tenants, and investors. The company was formerly known as DTZ Holdings plc and changed its name to Cushman & Wakefield, Inc. in September 2015. The company was founded in 1784 and is based in New York, New York with additional offices in the United States and internationally. [BN] The Plaintiff is represented by: Sally J. Abrahamson, Esq. OUTTEN & GOLDEN LLP 601 Massachusetts Avenue NW Washington, D.C. 20001 Telephone: (202) 847-4400 Facsimile: (202) 847-4410 E-mail: sabrahamson@outtengolden.com - and - Justin M. Swartz, Esq. Deirde Aaron, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 E-mail: daaron@outtengolden.com jms@outtengolden.com - and - Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Rd., Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 E-mail: gshavitz@shavitzlaw.com DEVILLE ASSET: "Begay" Suit Alleges FDCPA Violation --------------------------------------------------- Patricia Begay, on behalf of herself and all others similarly situated v. DeVille Asset Management, Ltd., Case No. 1:18-cv- 00615 (D. N.M., June 29, 2018), is brought against the Defendant for violation of the Fair Debt Collection Practices Act. The Plaintiff is a resident in the State of New Mexico, County of McKinley, and City of Navajo. The Plaintiff is a natural person allegedly obligated to pay a debt. The Defendant is an entity who at all relevant times was engaged, by use of the mails and telephone, in the business of attempting to collect a "debt" from the Plaintiff. [BN] The Plaintiff is represented by: Russell S. Thompson, IV, Esq. Thompson Consumer Law Group, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Tel: (602) 388-8898 Fax: (866) 317-2674 E-mail: rthompson@ThompsonConsumerLaw.com DOORDASH INC: "Ontiveros" Suit Alleges Violation of FCRA -------------------------------------------------------- DONNA ONTIVEROS, individually and on behalf of all others similarly situated, Plaintiff v. DOORDASH, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. CGC-18-567688 (Cal. Super., San Francisco Cty., June 27, 2018) alleges violations of the Fair Credit Reporting Act. Doordash, Inc. is a Delaware corporation doing business in San Francisco, California. [BN] The Plaintiff is represented by: Anthony J. Orshansky, Esq. Alexandria R. Kachadoorian, Esq. Justin Kachadoorian, Esq. COUNSELONE, P.C. 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277-9945 Facsimile: (424) 277-3727 E-mail: anthony@counselonegroup.com alexandria@counselonegroup.com justin@counselonegroup.com DR. PEPPER SNAPPLE: Fisher Sues over Ginger Ale Label ----------------------------------------------------- SAMUEL FISHER, individually and on behalf of all others similarly situated, Plaintiff v. DR. PEPPER SNAPPLE GROUP, INC., and DR PEPPER/SEVEN UP, INC., Defendants, 1:18-cv-11381-MLW (D. Mass., June 30, 2018) alleges that the Defendants made false and deceptive labeling in their soft drink Canada Dry Ginger Ale. According to the complaint, the Defendants labeled the soft drink Canada Dry Ginger Ale, as "MADE FROM REAL GINGER." This representation leads consumers to reasonably believe that the Defendants' soft drink is made using real ginger root -- i.e., the spice made by chopping or powdering the root of the ginger plant, and that consumers who drink the soft drink will receive the health benefits associated with consuming real ginger. As of July 9, 2018, Dr Pepper Snapple Group, Inc. was acquired by Maple Parent Holdings Corp., in a reverse merger transaction. Dr Pepper Snapple Group, Inc. manufactures and distributes non- alcoholic beverages in the United States, Mexico and the Caribbean, and Canada. Dr Pepper Snapple Group, Inc. was incorporated in 2007 and is headquartered in Plano, Texas. [BN] The Plaintiff is represented by: Matthew T. McCrary, Esq. GUTRIDE SAFIER LLP 265 Franklin St, Suite 1702 Boston, MA 02110 Telephone: (214) 502-2171 - and - Marie A. McCrary, Esq. 100 Pine Street, Suite 1250 San Francisco, CA 94114 Telephone: (415) 639-9090 ECO CHIC LLC: Faces "Olsen" Suit in E.D. New York ------------------------------------------------- A class action lawsuit has been filed against Eco-Chic LLC. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Eco-Chic LLC doing business as: Credo, Defendant, Case No. 1:18-cv-04054 (E.D. N.Y., July 15, 2018). Eco Chic LLC provides eco-friendly and organic cosmetics through its website and retail stores. The company offers skincare, makeup, hair, bath and body, fragrances, and travel products of multiple brands. The company was founded in 2014 and is based in San Francisco, California. The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com ENAGIC USA: Has Made Solicited Calls, "Higgins" Suit Alleges ------------------------------------------------------------ VALENTINA HIGGINS, individually and on behalf of all others similarly situated, Plaintiff vs. ENAGIC USA, INC., and DOES 1 through 10, Defendants, Case No. 2:18-cv-05691-RGK-MAA (C.D. Cal., June 27, 2018) is an action against the Defendants in contacting the Plaintiff as well as knowingly, and willfully contacting the Plaintiff repeatedly on her cellular telephone without her consent in violation of the Telephone Consumer Protection Act. Enagic USA, Inc. distributes water filtration systems and ionizers to hospitals, restaurants, and homes in the United States. Enagic USA, Inc. operates as a subsidiary of Enagic Co., Ltd. [BN] The Plaintiff is represented by: John P. Kristensen, Esq. David L. Weisberg, Esq. Christina M. Le, Esq. K RISTENSEN W EISBERG , LLP 12540 Beatrice Street, Suite 200 Los Angeles, California 90066 Telephone: (310) 507-7924 Facsimile: (310) 507-7906 E-mail: john@kristensenlaw.com david@kristensenlaw.com christina@kristensenlaw.com ENVISION HEALTHCARE: Court Dismisses Direct Billing Suit -------------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, granted Defendants' Motion to Dismiss the case captioned STEPHEN M. QUILTY, individually and on behalf of others similarly situated, Plaintiff, v. ENVISION HEALTHCARE CORP., EMCARE HOLDINGS INC., EMCARE INC., and BAXLEY EMERGENCY PHYSICIANS, LLC, Defendants, Case No. 8:18-cv-341-T-33CPT (M.D. Fla.). The Defendants have engaged in a corporate scheme to directly bill insured patients for out-of-network emergency department services, even though Florida law prohibits such conduct. The purpose of the Defendants' actions was to raise corporate revenue and profits at the expense of consumers who are ultimately held accountable by Defendants for the remainder of any unpaid, inflated bills. The Defendants and their employees do not disclose to patients in the emergency room that the physician is out-of-network for the patient's insurance. Quilty initiated this putative class action against the Defendants, asserting claims for violation of Florida's HMO and PPO balance-billing statutes, Fla. Stat. Sections 627.64194, 641.3154, and 641.513, and Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). The Court agrees with Defendants. Quilty was not injured by a violation of the PPO balance-billing statute, as he did not have a PPO plan when he was allegedly balance-billed and the PPO balance-billing statute was not even in existence at that time. True, in the context of putative class actions, the standing burden is lower at the motion to dismiss stage than the class certification stage. Nevertheless, it is clear from the pleadings that Quilty does not have individual standing to bring a claim based on the violation of the PPO balance-billing statute. Quilty's attempt to cast his injury as the same suffered by PPO-insured putative class members is unavailing. Therefore, Quilty does not have individual standing to bring a claim under the PPO balance-billing statute, which precludes him from representing class members who were allegedly billed in violation of the PPO balance-billing statute. All Quilty's claims are dismissed to the extent they are brought under Fla. Stat. Section 627.64194. Private Right of Action and Presumptive Collectability The Defendants argue that Quilty cannot bring Count I for violation of Florida's balance-billing statutes because these sections do not create private rights of action. Nowhere does Section 641.513 mention that subscribers to HMO plans, like Quilty, may bring a claim for violation of this section. And it is axiomatic that under Florida law, the judiciary cannot provide a remedy for a violation of the Insurance Code when the legislature has failed to do so. True, one case cited by Quilty involved a Florida court finding an implied cause of action for a healthcare provider against an insurer for violation of Section 641.513(5). But that case is easily distinguished. Merkle involved a healthcare provider seeking reimbursement from an HMO for emergency medical services it provided to the HMO's subscribers. Here, Quilty is not a healthcare provider seeking reimbursement from an insurer. He is a subscriber. And nothing in the language of Section 641.513 makes a healthcare provider's balance-billing a subscriber unlawful only Section 641.3154, infra, does that. Therefore, the language of Section 641.513 does not evince an intent by the legislature to allow a subscriber to bring a claim under that section against a provider for balance-billing. Count I is dismissed in its entirety. FDUTPA Claim Count II for violation of FDUTPA fails because the balance- billing statutes are exempted from FDUTPA and the Complaint's allegations fail to state a FDUTPA claim or satisfy Rule 9(b). The Defendants state that FDUTPA "does not apply to any person or activity regulated under the laws administered by Florida's Office of Insurance Regulation of the Financial Services Commission." Here, Quilty alleges the Defendants balance-billed him in violation of Florida's balance-billing statutes, which are part of Florida's Insurance Code (Chapters 624-651). The OIR has the power to investigate and enforce the provisions of the Insurance Code. And the HMO Act, within the Insurance Code, specifically addresses unfair or deceptive acts and practices to be investigated by the OIR. Section 641.3901 states: "No person, entity, or health maintenance organization shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s. 641.3905 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of health maintenance organizations." The Court agrees with the Defendants that the OIR regulates the activity of balance-billing as it is tasked with investigating violations of the Insurance Code, which contains the balance- billing statutes. The fact that the Defendants are not HMOs themselves is irrelevant. By the statutory language, the OIR is able to investigate not only HMOs, but also other entities including health care providers like the Defendants in order to ensure compliance with the HMO Act. And, indeed, Section 641.3154 within the HMO Act contemplates that providers like Defendants would be the ones balance-billing patients. Therefore, Quilty's claim cannot be enforced through FDUTPA, as improper balance- billing is an activity regulated by the OIR. Because the Court finds that improper balance-billing is conduct exempt from FDUTPA, the FDUTPA claim is dismissed. Unjust Enrichment The Defendants contend that Count III, for unjust enrichment, should be dismissed because statutory violations cannot give rise to a common law unjust enrichment claim" and the Complaint's "allegations establish that Defendants were not unjustly enriched." The elements of a cause of action for unjust enrichment under Florida law are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. The Court agrees with the Defendants that Quilty cannot establish an unjust enrichment claim based on violations of the HMO balance-billing statutes, Sections 641.3154 and 641.513. The Court has already determined that the legislature did not provide private rights of action for violations of these sections. And a plaintiff may not evade the Florida legislature's decision to withhold a statutory cause of action' for a violation of the insurance code `by asserting common law claims based on such violations. In short, Quilty cannot assert the common law claim of unjust enrichment for violation of the HMO balance-billing statutes. A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/ychcrpnv from Leagle.com. Stephen M. Quilty, individually and on behalf of others similarly situated, Plaintiff, represented by Aaron Schwartz -- ASchwartz@kaplanfox.com -- Kaplan Voekler Cunningham & Frank, pro hac vice, Donald R. Hall, Jr.-dhall@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, pro hac vice, Frederic Scott Fox -- ffox@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, pro hac vice, Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Marc A. Wites -- MWites@wklawyers.com -- Wites & Kapetan, PA, Matthew George -- mgeorge@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP & Thomas Bowen Rogers -- trogers@wklawyers.com -- Wites & Kapetan, PA. Envision Healthcare Corp., Emcare Holdings Inc., Emcare Inc. & Baxley Emergency Physicians, LLC, Defendants, represented by David Jacobs djacobs@ebglaw.com, Epstein Becker & Green, P.C., pro hac vice, David M. Prager -- dprager@ebglaw.com -- Epstein Becker & Green, P.C., pro hac vice, Jack E. Fernandez, Jr. -- jfernandez@zuckerman.com -- Zuckerman Spaeder, LLP, Jonathan M. Brenner -- jbrenner@ebglaw.com -- Epstein Becker & Green, P.C., pro hac vice & Mamie Wise -- mwise@zuckerman.com -- Zuckerman Spaeder, LLP. EQUINOR TEXAS: Faces "Gillespie" Suit in S.D. Texas --------------------------------------------------- A class action lawsuit has been filed against Equinor Texas Onshore Properties LLC. The case is captioned as DAVID GILLESPIE, individually and on behalf of all others similarly situated, Plaintiff v. EQUINOR TEXAS ONSHORE PROPERTIES LLC; EQUINOR PIPELINES LLC; EQUINOR USA ONSHORE PROPERTIES INC.; and EQUINOR US OPERATIONS LLC, Defendants, Case No. 5:18-cv-00092 (S.D. Tex., June 29, 2018). The case is assigned to Judge Diana Saldana and referred to Magistrate Judge John A Kazen. Equinor Texas Onshore Properties LLC, a subsidiary of Equinor ASA, is an energy company, explores for, produces, transports, refines, and markets petroleum and petroleum-derived products, and other forms of energy in Norway and internationally. The parent company was formerly known as Statoil ASA and changed its name to Equinor ASA in May 2018. Equinor ASA was founded in 1972 and is headquartered in Stavanger, Norway. [BN] The Plaintiff is represented by: Jane Swearingen Leger, Esq. THE FERGUSON LAW FIRM 350 Pine St, Ste 1440 Beaumont, TX 77701 Telephone: (409) 832-9700 - and - Layne William Walker, Esq. PROVOST AND UMPHREY 490 Park Beaumont, TX 77701 Telephone: (409) 835-6000 E-mail: lwalker@pulf.com - and - Mark Sparks, Esq. Paul Franklin Ferguson, Jr., Esq. THE FERGUSON LAW FIRM 350 Pine Street, Suite 1440 Beaumont, TX 77701 Telephone: (409) 832-9700 Facsimile: (409) 832-9708 E-mail: mark@thefergusonlawfirm.com cferguson@thefergusonlawfirm.com EQUITY RESIDENTIAL: Faces "Fischler" Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Equity Residential Properties Management Corp. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Equity Residential Properties Management Corp., Defendant, Case No. 1:18-cv-04032 (E.D. N.Y., July 13, 2018). Equity Residential is a publicly traded real estate investment trust that invests in apartments.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com EXPERIAN INFORMATION: 9th Cir. Affirms Summary Judgment in "Shaw" ----------------------------------------------------------------- In the case, JOHN T. SHAW, on behalf of himself and all others similarly situated; KENNETH COKE; RAYMOND RYDMAN, Plaintiffs- Appellants, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant- Appellee, Case No. 16-56587 (9th Cir.), Judge Milan D. Smith, Jr. of the U.S. Court of Appeals for the Ninth Circuit affirmed district court's order granting summary judgment in favor of Experian on all claims. Between 2010 and 2011, each Appellant executed a short sale on real property that he owned. The Appellants brought the action against Experian because of the manner in which Experian reported those short sales. After receiving Experian's responses to their disputes, Plaintiffs-Appellants Shaw, Kenneth Coke, and Raymond Rydman filed the putative class action in June 2013 against Wells Fargo, CitiMortgage, and Experian for violations of the Fair Credit Reporting Act ("FCRA"). Following the stipulated dismissal of Wells Fargo and CitiMortgage, the Appellants filed a second amended complaint alleging three claims against Experian: (1) a reasonable procedures claim pursuant to 15 U.S.C. Section 1681e; (2) a reasonable reinvestigation claim pursuant to 15 U.S.C. Section 1681i; and (3) a file disclosure claim pursuant to 15 U.S.C. Section 1681g. They requested damages pursuant to 15 U.S.C. Section 1681n. The case was stayed pending the Supreme Court's resolution of Spokeo, Inc. v. Robins, 135 S.Ct. 1892 (2015). After the Court issued its decision in Spokeo, and the stay was lifted, Experian moved for summary judgment. The district court granted summary judgment in favor of Experian, and held: First, the Appellants' reasonable procedures and reasonable reinvestigation claims failed because they had not shown that their credit reports were inaccurate. Second, their file disclosure claim failed because they did not articulate what information Experian failed to disclose to them. Third, the Appellants failed to establish that Experian willfully violated the FCRA pursuant to 15 U.S.C. Section 1681n. The Appellants timely appealed. Judge Smith finds that the Appellants fail to point to any inaccuracies on their credit reports. Because they fail to meet this threshold burden, he needs not consider whether Experian had reasonable procedures or conducted reasonable reinvestigations when Appellants disputed their credit information. He therefore affirms the district court's grant of summary judgment with regard to the Appellants' reasonable procedures and reasonable reinvestigation claims. The Judge also finds that the Appellants' failure to disclose claim fails because Experian clearly and accurately disclosed to the Appellants all information that Experian recorded and retained that might be reflected in a consumer report. The Appellants received complete copies of their consumer reports. They are not entitled by the FCRA to information that is not in their report, and they fail to identify what information Experian improperly excluded from its disclosures. He therefore affirms the district court's grant of summary judgment with regard to the Appellants' failure to disclose claim. The Appellants similarly fail to show willfulness as to their failure to disclose claim. Even if Experian had violated Section 1681g, the Judge cannot say that Experian acted in an objectively unreasonable manner. Experian's decision not to list code 9 in its consumer disclosures was not objectively unreasonable because the only relevant guidance dictated that consumers are entitled to complete copies of their consumer reports, not their entire files in whatever form maintained by the CRA. Nor have the Appellants pointed to any authority indicating that it was objectively unreasonable for Experian to include the same information in credit reports and consumer disclosures but in different fields or locations. The Judge does not so conclude now. Therefore, the Appellants have failed to show willfulness by Experian as required by 15 U.S.C. Section 1681n. For the foregoing reasons, Judge Smith affirmed the district court's grant of summary judgment in favor of Experian. A full-text copy of the Ninth Circuit's May 29, 2018 Opinion is available at https://is.gd/cMEqzD from Leagle.com. Guerino John Cento -- cento@centolaw.com -- (argued), Cento Law LLC, Indianapolis, Indiana; Matthew J. Zevin -- mzevin@aol.com -- Stanley Law Group, San Diego, California; for Plaintiffs- Appellants. Adam Wiers -- awwiers@jonesday.com -- (argued), Jones Day, Chicago, Illinois; Kelly V. O'Donnell -- kodonnell@jonesday.com - - Jones Day, San Diego, California; for Defendant-Appellee. EXPERIAN INFO: Espinoza Bid to Subpoena LexisNexis Underway ----------------------------------------------------------- Wendy Espinoza, plaintiff in a class action lawsuit against Experian Information Solutions, Inc., has asked the U.S. District Court for the Northern District of Georgia to grant her Motion To Compel And To Enforce Subpoena Against Non-Party LexisNexis Risk Data Management, Inc. The Motion is pending before Magistrate Judge Linda T. Walker. On June 29, LexisNexis filed its response in opposition to the Motion. On July 9, 2018, Espinoza filed a Reply Brief in support of the Motion. Espinoza is asking the Court in Atlanta, Georgia, to issue an order: 1. overruling Non-Party LexisNexis Risk Data Management, Inc.'s objections to Plaintiff's Subpoena to Produce Documents; 2. directing LexisNexis to comply with Plaintiff's Subpoena to Produce Documents, and produce all documents sought therein; and 3. directing LexisNexis to comply with the Plaintiff's Subpoena for a Deposition and produce a witness on a date and time certain at the convenience of the Plaintiff. The class action lawsuit is captioned as, ESPINOZA v. EXPERIAN INFORMATION SOLUTIONS, INC., No. CV-17-01977-PHX-DLR (D. Ariz.). The Subpoena proceeding is captioned as, IN RE: MOTION TO COMPEL LEXISNEXIS RISK DATA MANAGEMENT INC., PRODUCTION OF DOCUMENTS AND DESIGNATION OF A CORPORATE WITNESS PURSUANT TO FED. R. CIV. P. 45, Case No. 1:18-mi-00068-RWS-LTW (N.D. Ga., June 15, 2018). The case is assigned to Judge Richard W. Story and referred to Magistrate Judge Linda T. Walker. Experian Information Solutions, Inc., an information services company, provides information, analytical, and marketing services to organizations and consumers to manage risk and reward of commercial and financial decisions. Experian Information Solutions, Inc. operates as a subsidiary of Experian plc. [BN] Espinoza is represented by: Craig Edward Bertschi, Esq. McRAE BERTSCHI & COLE, LLC Suite 200 1350 Center Drive Dunwoody, GA 30338 Tel: (678) 999-1102 E-mail: ceb@mcraebertschi.com LexisNexis is represented by: Timothy Allen Butler, Esq. TROUTMAN SANDERS, LLP 600 Peachtree St., NE Atlanta, GA 30308-2216 Tel: (450) 656-3300 E-mail: timothy.butler@troutmansanders.com FACEBOOK INC: Bid to Stay Biometric Info Privacy Suit Denied ------------------------------------------------------------ Judge James Donato of the U.S. District Court for the Northern District of California denied Facebook's motion to stay the case, IN RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, Case No. 3:15-cv-03747-JD (N.D. Cal.). Defendant Facebook has requested a complete stay of the case pending the Ninth Circuit's decision on whether to accept interlocutory review of the Court's order certifying a class for trial. Facebook filed it on May 7, 2018, and noticed a hearing on it for June 14, 2018 under the usual 35-day notice period provided for in Civil Local Rule 7-2(a). The Plaintiffs filed an opposition under that timeline on May 21, 2018. Facebook then filed a short reply on May 22, 2018, along with a request to advance the stay hearing to May 24, 2018. It appears Facebook filed a stay request directly with the Ninth Circuit, too, without the benefit of the Court's disposition of the request. As an initial matter, Judge Donato finds that Facebook misapprehends the governing standards for a stay. The Court's analysis is controlled by Nken v. Holder, 556 U.S. 418 (2009), and Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011). He says Facebook departs from these standards by focusing almost exclusively on the merits of the Court's class certification decision and making virtually no showing at all on the critical element of irreparable harm. Its main arguments about harm are that a trial might be expensive, and sending notice to the class in advance of the trial will embarrass it and inflict "reputational" injury. Neither point comes close to warranting a stay. Facebook's concerns about the expense of trial are particularly thin. The sum total of this argument is the unadorned statement that a trial could cost a lot of money and might result in a substantial award of damages. Facebook has not identified anything that would make this case stand out in terms of trial duration or costs. More broadly, Facebook's trial expense argument is based on a faulty proposition. Every party going to trial faces the same cost issue Facebook raises, albeit typically without Facebook's deep financial resources, and Facebook offers no reason why it should be treated differently and afforded a stay. The risk of a large judgment does not change that conclusion. Facebook's concern about reputational injury is equally unpersuasive. It is hardly a secret that Facebook is being sued for alleged violations of the Biometric Information Privacy Act and that a jury trial has been set. Facebook also appears to believe that notifying the class members via two of its user notification channels would cause untoward embarrassment. That goes too far. Facebook is an online business that routinely communicates with users through online notifications about a myriad of topics. It ill suits Facebook to complain about sticking with that routine communication protocol to give class notice and opt-out information. Facebook's concern that notifying the class members now might cause confusion later is also overblown. Facebook has not proffered any evidence indicating that class members would be left in a state of disarray and befuddlement, as it suggests, if developments during trial or post-trial appellate review resulted in a change to or decertification of the class. Common sense strongly advises to the contrary. The Judge holds that it is highly doubtful any class member would be unable to understand subsequent changes in the case, or be thrown into confusion by such an event. He says these points are the only things Facebook offers as possible irreparable harm, and their insufficiency necessitates the denial of their stay request. In addition, the Court expressed its concern in the order denying summary judgment that Facebook's challenge to the certification order is based upon a misrepresentation of the Court's reasoning and analysis. The merits discussion in the stay request makes the same mistake. The case has been pending since 2015 and is one of the Court's oldest open matters. The parties have litigated it heavily, and the Court has heard and decided two motions to dismiss, three motions for summary judgment, a class certification motion, multiple discovery disputes, and other matters. Discovery closed many months ago and the expert witness work is done. The case is ripe for trial, and Judge Donato denied Facebook's last-minute request to derail that. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/pweC6X from Leagle.com. Nimesh Patel, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Paul Jeffrey Geller -- Pgeller@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Alexander Nguyenn -- anguyen@edelson.com -- Edelson P.C., Amanda M. Frame, Robbins Geller Rudman and Dowd LLP, Christopher Chagas Gold -- cgold@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Frank Anthony Richter -- fritcher@rgrdlaw.com -- Robbins Geller Rudman & Dowd, John Hamilton George -- jgeorge@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Mark J. Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC, pro hac vice, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Stuart Andrew Davidson -- Sdavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice & James E. Barz -- jbarz@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. ADAM PEZEN, Plaintiff, represented by Corban S. Rhodes -- crhodes@labaton.com -- Labaton Sucharow LLP, pro hac vice, Joel H. Bernstein -- jbernstein@labaton.com -- Labaton Sucharow LLP, pro hac vice, Lawrence A. Sucharow -- lsucharow@labaton.com -- Labaton Sucharow LLP, pro hac vice, Ross M. Kamhi -- rkamhi@labaton.com -- Labaton Sucharow Llp, pro hac vice, Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, Alexander Nguyen , Edelson P.C., Amanda M. Frame, Robbins Geller Rudman and Dowd LLP, Ellen Anne Gusikoff-Stewart, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Mark R. Winston, Labaton Sucharow LLP, pro hac vice, Michael P. Canty, Labaton Sucharow LLP, pro hac vice, Patrick J. Coughlin, Robbins Geller Rudman & Dowd LLP, Rafey Sarkis Balabania , Edelson PC, Randi D. Bandman, Robbins Geller Rudman & Dowd LLP & Stuart Andrew Davidson, Robbins Geller Rudman & Dowd LLP. Carlo Licata, Plaintiff, represented by Jay Edelson -- jedelson@edelson.com -- Edelson PC, Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, Alexander Nguyen , Edelson P.C., Amanda M. Frame, Robbins Geller Rudman and Dowd LLP, Ellen Anne Gusikoff-Stewart, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Mark R. Winston, Labaton Sucharow LLP, pro hac vice, Michael P. Canty, Labaton Sucharow LLP, pro hac vice, Patrick J. Coughlin, Robbins Geller Rudman & Dowd LLP, Rafey Sarkis Balabania, Edelson PC, Randi D. Bandman, Robbins Geller Rudman & Dowd LLP & Stuart Andrew Davidson, Robbins Geller Rudman & Dowd LLP. Facebook Inc., Defendant, represented by Vincent J. Connelly -- vconnelly@mayerbrown.com -- Mayer Brown LLP, Archis Ashok Parasharami -- aparasharami@mayerbrown.com -- Mayer Brown LLP, pro hac vice, Archis Ashok Parasharami, Mayer Brown LLP, John Nadolenco -- jnadolenco@mayerbrown.com -- Mayer Brown LLP, Lauren R. Goldman -- lrgoldman@mayerbrown.com -- Mayer Brown Llp, pro hac vice, Matthew David Provance -- mprovance@mayerbrown.com -- Mayer Brown LLP, pro hac vice, Michael E. Rayfield -- mrayfield@mayerbrown.com -- Mayer Brown LLP, pro hac vice & Vincent Connelly, Mayer Brown LLP, pro hac vice. Frederick William Gullen, Interested Party, represented by David Philip Milian -- dmilian@careyrodriguez.com -- Carey Rodriguez Milian Gonya LLP & Frank S. Hedin, Hedin Hall LLP. Clayton P. Zellmer, Interested Party, represented by Albert Y. Chang -- mail@bottinilaw.com -- Bottini and Bottini, Inc.. FAIRMOUNT SANTROL: Fitzgibbon Sues Over Unimin Merger Deal ---------------------------------------------------------- Jeffrey Fitzgibbon, individually and on behalf of all others similarly situated, Plaintiff, v. Fairmount Santrol Holdings Inc., Jenniffer D. Deckard, Matthew F. Lebaron, William E. Conway, Michael G. Fisch, Charles D. Fowler, Stephen J. Hadden, Michael C. Kearney, William P. Kelly, Michael E. Sand and Lawrence N. Schultz, Defendants, Case No. 18-cv-01095 (N.D. Ohio, May 11, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the merger between Fairmount and Unimin Corporation, a subsidiary of SCR-Sibelco NV; and rescinding it in the event defendants consummate the merger. The lawsuit also seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Each share of Fairmount's common stock will be converted into the right to receive the number of shares of Unimin common stock that will result in the holders of Fairmount Common Stock, together with the holders of certain Fairmount equity awards, owning 35% of the Unimin Common Stock and an amount in cash equal to $170,000,000 divided by the fully diluted Fairmount Share Number, without interest. Fairmount provides high-performance sand and sand-based product solutions used by oil and gas exploration and production companies to enhance the productivity of their wells. Fairmount common shares are listed and traded on the NYSE under the ticker symbol "SXE." Unimin produces non-metallic industrial minerals for industrial, manufacturing, and commercial applications in North America. According to the complaint, the proxy statement failed to provide a tangible value for the merger consideration that Fairmount shareholders could use to serve as a cognizable comparison. It is instead presented in terms of the Exchange Ratio, plus cash and does not adequately quantify to shareholders what they will be receiving in exchange for their shares of stock -- which was trading around $5 per share prior the deal announcement. The Proxy also failed to provide Total Enterprise Value projections for both Fairmount and Unimin, says the complaint. [BN] Plaintiff is represented by: Daniel R. Karon, Esq. Beau D. Hollowell, Esq. KARON LLC 700 W. St. Clair Ave., Suite 200 Cleveland, OH 44113 Tel: (216) 622-1851 Fax: (216) 241-8175 Email: dkaron@karonllc.com bhollowell@karonllc.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Tel: (212) 971-1341 Fax: (212) 202-7880 Email: jmonteverde@monteverdelaw.com FEDERAL EMERGENCY: Asencio Sues over Temporary Housing Programs --------------------------------------------------------------- ALIAN ASENCIO, ARACELIS VELEZ, DENISE NIEVES, YARITZA DE JESUS LOPEZ, ROSA RIVERA, ZOR ANGEL MOJICA, ANGEL LAURIANO MU•OZ DE JESUS, BETHZAIDA CRESPO VICENTE, and IRIS OTERO, individually and on behalf of all others similarly situated, Plaintiffs v. FEDERAL EMERGENCY MANAGEMENT AGENCY, WILLIAM BROCK LONG, THOMAS VAN ESSEN, AND ALEJANDRO DE LA CAMPA, ET AL., Defendants, Case No. 4:18-cv-40111-TSH (D. Mass., June 30, 2018) seeks to enjoin the Defendants from terminating the TSA Program pending further order from the Court; require the Defendants to notify all hotels, motels or other facilities subject to the TSA program which have been providing housing for Hurricane Maria evacuees, that any prior notice of termination has been immediately withdrawn and revoked; require the Defendants to continue to extend the TSA program and provide housing and shelter to Hurricane Maria evacuees pending further order from the Court; require the Defendants to continue to accept and process all applications for Temporary Housing Assistance from Temporary Housing Assistance evacuees pending further order from the Court; and require the Defendants to notify applicants and class members concerning all forms of THA available to them and the criteria and conditions applicable to such assistance. Federal Emergency Management Agency is a government organization. The organization is based in Washington, District Of Columbia. [BN] The Plaintiff is represented by: Hector E. Pineiro, Esq. Robert A. Scott, Esq. HECTOR E. PINEIRO LAW OFFICES, P.C. 807 Main Street Worcester, MA 01610 Telephone: (508) 770-0600 E-mail: hector@pineirolegal.com robin@pineirolegal.com - and - Craig J. de Recat, Esq. Justin Jones Rodriguez, Esq. Eve L. Torres, Esq. MANATT, PHELPS & PHILLIPS, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4000 - and - Brett Natarelli, Esq. 20 N. Clark Street, Suite 3300 Chicago, IL 60602 Telephone: (312) 626-1813 - and - Jose Perez, Esq. Natasha Bannan, Esq. LATINOJUSTICE PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 Telephone: (212) 219-3360 - and - Kira Romero-Craft, Esq. 523 West Colonial Drive Orlando, FL 32804 Telephone: (321) 418-6354 FINANCIAL ASSET: Faces "Morgan" Suit in D. New Jersey ----------------------------------------------------- A class action lawsuit has been filed against Financial Asset Management Systems, Inc. The case is styled as Raven Morgan, on behalf of herself and all others similarly situated, Plaintiff v. Financial Asset Management Systems, Inc, Defendant, Case No. 3:18-cv-11597 (D. N.J., July 13, 2018). Financial Asset Management Systems, Inc. provides customized receivables management services primarily in the United States.[BN] The Plaintiff appears PRO SE. FIRST CREDIT SERVICES: Gigiolia Alleges Wrongful Debt Collections ----------------------------------------------------------------- NICOLAS GIGIOLIO, individually and on behalf of all others similarly situated, Plaintiff v. FIRST CREDIT SERVICES, INC. D/B/A ACCOUNTS RECEIVABLE TECHNOLOGIES, Defendant, Case No. 1:18- cv-04518 (N.D. Ill., June 28, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to the Honorable Judge Jorge L. Alonso. First Credit Services, Inc., doing business as Accounts Receivable Technologies, provides accounts receivable and revenue cycle management services. The company was founded in 1993 and is based in Woodbridge, New Jersey. First Credit Services, Inc. operates as a subsidiary of Spiegel Inc. [BN] The Plaintiff is represented by: Celetha Chatman, Esq. COMMUNITY LAWYERS GROUP, LTD. 73 W. Monroe Street, Suite 502 Chicago, IL 60603 Telephone: (312) 757-1880 E-mail: cchatman@communitylawyersgroup.com FORBES ASSOCIATES: Faces "Bieler" Suit in M.D. Tennessee -------------------------------------------------------- A class action lawsuit has been filed against Forbes Associates, Inc. The case is styled as Laurel Bieler, individually and on behalf of similarly situated consumers, Plaintiff v. Forbes Associates, Inc., Defendant, Case No. 3:18-cv-00642 (M.D. Tenn., July 13, 2018). Forbes Associates Corporation is a privately held company in Garden Grove, CA and is a Single Location business. Categorized under Financial Consultants.[BN] The Plaintiff is represented by: Susan S. Lafferty, Esq. Lafferty Law Firm, P.C. 555 Marriott Dr., Suite 315 Nashville, TN 37214 Tel: (615) 492-1199 Email: susanl@laffertylawonline.com GEICO INSURANCE: Johnson Sues Over Insurance Benefit Reduction -------------------------------------------------------------- Daniel Johnson, on behalf of himself and all others similarly situated, Plaintiffs, v. GEICO Insurance Company and GEICO Choice Insurance Company, Defendants, Case No. CV-18-897594 (Ohio Comm. Pleas, May 11, 2018), seeks injunctive and other equitable relief, as well as an award of appropriate damages, compensatory damages, punitive damages, reasonable attorney fees and such other and further relief resulting from breach of contract. Geico is in the business of selling automobiles insurance to consumers. Johnson purchased automobile insurance from Geico Insurance. On August 30, 2017, Johnson was involved in a motor vehicle accident and sought treatment at the Cleveland Clinic emergency room. Geico deducted $665 from his treatment dues based upon the allegation that the charges exceeded an amount that is reasonable when compared to the charges of other providers in the same geographic area despite nothing in his policy that allows for such a reduction. [BN] The Plaintiff is represented by: James S. Wertheim, Esq. JAMES S. WERTHEIM LLC 24700 Chagrin Blvd., Suite 309 Beachwood, OH 44122 Tel: (216) 902-1719 Email: wertheimjim@gmail.com GENERATIONS FEDERAL: 4th Cir. Affirms Sanctions Against Attorneys ----------------------------------------------------------------- The United States Court of Appeals, Fourth Circuit, affirmed the sanctions against three attorneys and their law firm in the case captioned STEPHEN SIX; DARREN T. KAPLAN; J. AUSTIN MOORE; STUEVE SIEGEL HANSON LLP; DARREN KAPLAN LAW FIRM, P.C., Appellants, and JAMES DILLON, Plaintiff, v. GENERATIONS FEDERAL CREDIT UNION, Defendant-Appellee, and BMO HARRIS BANK, N.A.; FOUR OAKS BANK & TRUST COMPANY; BAY CITIES BANK, Defendants. LAW PROFESSORS, Amicus Supporting Appellants, No. 17-1548. (4th Cir.). Dillon filed a putative class action on behalf of a class and sub-class of borrowers against several non-lender banks whose only roles were processing loan-related transactions through the Automatic Clearing House network. Dillon sought to impose liability on these non-lender banks, who were not parties to the loan agreements, for providing aid to online lenders in violation of the Racketeer Influenced and Corrupt Organizations Act as well as several state laws. Generations Community Federal Credit Union (Generations) processed debit transactions from Dillon's bank account under the Western Sky loan agreement. Dillon alleged that Generations derived a benefit through the receipt of fees" from the allegedly usurious loans by processing these debit transactions. Attorneys Stephen Six, J. Austin Moore, and Darren T. Kaplan, among others, represented Dillon in his suit. Six and Moore are a partner and associate attorney, respectively, at the Steuve Siegel Hanson LLP law firm. Kaplan is the principal shareholder of Darren Kaplan Law Firm, P.C. Generations promptly moved to dismiss Dillon's complaint, arguing that the Western Sky loan agreement's arbitration, forum- selection, and choice-of-law clauses each justified dismissal. Generations attached a copy of the Western Sky loan agreement as an exhibit to its motion. Dillon opposed Generations's motion to dismiss on grounds that can most charitably be described as ambiguous. Of relevance to the dispute that would follow, Dillon challenged Generations's reliance on the Western Sky loan agreement because it originated online and does not bear Plaintiff's signature or any signature and Defendant fails to offer any explanation as to how it came into possession of the Loan Agreement or whether it is authentic. At this stage, Generations knew that (1) Dillon and his attorneys no longer challenged the authenticity of the loan agreement, and that (2) a copy of the agreement had been in Dillon's possession for some time. However, Generations did not know that Dillon's attorneys had also possessed the same document since before filing the complaint. A forensic investigation of Dillon's laptop computer revealed that Dillon had provided his copy of the Western Sky loan agreement to his attorneys on October 1, 2013 one week before the original complaint in the suit was filed. Moore later confirmed that Dillon had faxed the document to Moore's attention on October 1, 2013. Generations moved for sanctions under the district court's inherent authority and 28 U.S.C. Section 1927. Generations argued that the existence of the Dillon copy rendered Dillon's attorneys' authenticity arguments disingenuous and in bad faith, misleading to the court, and calculated to obstruct and multiply the proceedings. Generations sought compensation for the attorney's fees and costs incurred because of the added years of litigation stemming from Dillon's attorneys' bad-faith challenges to the authenticity of the Western Sky loan agreement. The district court granted Generations's motion for sanctions, finding that Six, Kaplan, and Moore acted in bad faith and vexatiously and violated their duty of candor by hiding a relevant and potentially dispositive document from the Court in connection with a long-running dispute over arbitrability. The Fourth Circuit reviews for abuse of discretion a district court's award of sanctions, both pursuant to its inherent authority, and under 28 U.S.C. Section 1927. The Court will not find an abuse of discretion unless on the entire evidence the Court is left with the definite and firm conviction that a mistake has been committed. Here, the court invoked its inherent authority to create a remedy to address bad-faith behavior that abused the judicial process. As the court explained: "Counsel raised a dispute over the authenticity of a written contract proffered by Generations without disclosing that their client, the plaintiff, possessed an identical copy. The Dillon Copy was material to and potentially dispositive of the authenticity issue. During oral argument, Mr. Six implied to the Court that Counsel had no such copy and that no such copy existed. Mr. Six deliberately misled the Court in an effort to avoid the consequences of an arbitration clause in the contract, and none of his co-counsel corrected this misleading argument." The sanctioned attorneys argue that neither the rules of ethics nor the Federal Rules of Civil Procedure imposed an affirmative duty to disclose the Dillon copy of the Western Sky loan agreement before discovery commenced. These arguments miss the point. Counsel are not being sanctioned for their failure to disclose the Dillon copy of the Western Sky loan agreement. Rather, counsel are being sanctioned for raising objections in bad faith simultaneously questioning and encouraging the district court to question the authenticity of a loan agreement without disclosing that the Plaintiff provided them a copy of that loan agreement before the complaint was filed. The Fourth Circuit finds that the district court did not abuse its discretion in imposing sanctions on Dillon's attorneys. The Court therefore affirms. A full-text copy of the Fourth Circuit's May 31, 2017 Opinion is available at https://tinyurl.com/ybhnr6o7 from Leagle.com. ARGUED: Kannon K. Shanmugam -- kshanmugam@wc.com -- WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Appellants. Leslie Sara Hyman -- LHyman@pulmanlaw.com -- PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP, San Antonio, Texas, for Appellee. ON BRIEF: -- jwilliams@wc.com -- William T. Marks -- wmarks@wc.com -- WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Appellants. Eric A. Pullen, PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP, Reid C. Adams, Jr. -- cal.adams@wbd-us.com -- Jonathan R. Reich- jonathan.reich@wbd-us.com -- WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina, for Appellee. David C. Frederick -- dfrederick@kellogghansesn.com -, Minsuk Han -- mhan@kellogghansen.com -- Jacob E. Hartman -- jhartman@kellogghansen.com -KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Amici Curiae. GLOBAL CREDIT: Young Sues over Debt Collection Practices -------------------------------------------------------- GEOFFREY YOUNG, individually and on behalf of all others similarly situated, Plaintiff v. GLOBAL CREDIT & COLLECTION CORP., and PYOD, LLC, Defendants, Case No. 1:18-cv-04494 (N.D., Ill., June 27, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Global Credit & Collection Inc. provides customer and account receivable management services. Global Credit & Collection Inc. was founded in 1999 and is based in Markham, Canada with locations in Canada, Latin America, the United Kingdom, and the United States. [BN] The Plaintiff is represented by: Russell S. Thompson IV, Esq. Joseph Panvini, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave D106-618 Mesa, AZ 85206 Telephone: (602) 388-8898 Facsimile: (866) 317-2674 E-mail: rthompson@ThompsonConsumerLaw.com jpanvini@ThompsonConsumerLaw.com GOLUB CORPORATION: "Austin" Suit Seeks to Recover Unpaid Wages -------------------------------------------------------------- Maria Austin, individually and on behalf of others similarly situated v. The Golub Corporation, Case No. 1:18-cv-00778 (N.D. N.Y., June 29, 2018), seeks to recover unpaid wages, unpaid overtime, liquidated damages, reasonable attorneys' fees and costs, and all other appropriate legal and equitable relief under the Fair Labor Standards Act and the New York State Labor Law. The Plaintiff resides in the County of Ulster, in the State of New York. The Plaintiff was hired in 1992 as a "Loss Prevention Officer" by the Defendant and then her job title was changed around January 2014 to "Loss Prevention Manager" by the Defendant. Her job duties remained the same. The Plaintiff is a current employee of Defendant. The Defendant, The Golub Corporation is a Delaware corporation. The Golub Corporation, through its subsidiaries, operates discount supermarkets under the Price Chopper, Market 32 and Market Bistro banners. It offers products in the areas of pharmaceuticals, meat, flowers, cheeses, seafood, and deli products. The company is based in Schenectady, New York and has locations in Connecticut, Massachusetts, New Hampshire, New York, Pennsylvania, and Vermont. [BN] The Plaintiff is represented by: Brian J. LaClair, Esq. BLITMAN & KING LLP Franklin Center, Suite 300 443 North Franklin Street Syracuse, NY 13204-5412 Tel: (315) 422-7111 Fax: (315) 471-2623 E-mail: bjlaclair@bklawyers.com GREEN APPLE: Faces "Martinez" Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Green Apple Gourmet Inc. The case is styled as Fernando Velasquez-Martinez and Miguel Rueda Sanchez, on behalf of others similarly situated, Plaintiffs v. Green Apple Gourmet Inc. doing business as: Green Apple Gourmet Food formerly doing business as EZ Deli, Eric King, Min J Cho, Hector Perez and Popy Doe, Defendants, Case No. 1:18-cv- 06366 (S.D. N.Y., July 13, 2018). Green Apple Gourmet Inc is a grocery store with a deli prepping breakfast, homestyle sandwiches & Lebanese salads.[BN] The Plaintiffs appear PRO SE. GREYSTAR REAL: Faces "Fischler" Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Greystar Real Estate Partners, LLC. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Greystar Real Estate Partners, LLC and Greystar Management Services, L.P., Defendants, Case No. 1:18-cv- 04049 (E.D. N.Y., July 13, 2018). Greystar Real Estate Partners, LLC provides real estate services. The Company offers property management, financial services, investment advisory, capital renovation, asset management, development, and construction services. Greystar Real Estate Partners serves customers worldwide.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com GROSS POLOWY: "Bayer" Suit Seeks Damages under FDCPA ---------------------------------------------------- Benzion Bayer, individually and on behalf of all others similarly situated v. Gross Polowy, LLC, Ditech Financial, LLC, and John Does 1-25, Case No. 7:18-cv-05874 (S.D. N.Y., June 28, 2018), seeks damages and declaratory and injunctive relief under the Fair Debt Collection Practices Act. The Plaintiff is a resident of the State of New York, County of Rockland, residing at 304 Wilson Avenue, Spring Valley, NY, 10977. The Defendant Gross Polowy LLC is a "debt collector" with an address for service in New York at Corporation Service Company, 80 State Street Albany, NY, 12207. The Defendant Ditech Financial LLC is a "debt collector" with an address for service in New York at CT Corporation System, 111 8th Ave, New York, NY, 10011. [BN] The Plaintiff is represented by: Daniel Kohn, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 HOME DEPOT: Court Narrows Claims in Mahogany Board Fraud Suit ------------------------------------------------------------- The United States District Court for the Eastern District of California granted in part and denied in part Defendant's Motion to Dismiss the case captioned CLYDE GOLDEN, individually and on behalf of all others similarly situated, Plaintiff, v. HOME DEPOT, U.S.A, INC., Defendant, No. 1:18-cv-00033-LJO-JLT (E.D. Cal.). The Plaintiff purchased several strips of wood from a Home Depot location on Ming Road in Bakersfield, California. The wood was sold as mahogany board, and the Plaintiff paid $3.52 per strip, plus a state lumber fee and tax. Unnamed employees of Home Depot told the Plaintiff that he was purchasing authentic, genuine mahogany. The Plaintiff later tested the wood strips and learned that they were made of Swamp mahogany. Swamp mahogany is less valuable than genuine, authentic mahogany. The Plaintiff alleges the following causes of action: (1) declaratory judgment under 28 U.S.C. Section 2201; (2) breach of the implied covenant of good faith and fair dealing; (3) violation of the California Consumer Legal Remedies Act (CLRA); (4) violations of California's Unfair Competition Laws (UCL) prohibiting unfair, (5) unlawful, and (6) fraudulent business practices; (7) violation of California's false advertising laws (FAL); (8) negligent misrepresentation; (9) unjust enrichment; and (10) breach of express warranty. The Defendant contends that the Plaintiff has not alleged why he believes the wood sold by and purchased from Home Depot was falsely represented to be mahogany. The Defendant argues that the Plaintiff did not justifiably rely on any representation by Home Depot that the wood sold was of a superior grade than what he purchased because Home Depot marketed the lumber as Swamp mahogany and priced it well below what the Plaintiff would have expected to pay for authentic mahogany. Falseness The Defendant argues that all of the Plaintiff's claims fail because he has not alleged facts establish that Home Depot's marketing of non-Meliaceae woods as mahogany was a false representation. A plaintiff alleging fraud must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. The Defendant's argument that the Plaintiff has not alleged sufficiently that Home Depot falsely represented its lumber products as mahogany fails. The Court finds that Complaint contains sufficiently detailed allegations regarding the characteristics of wood from trees in the Meliaceae family and those of wood from other species sold as Swamp, Santos, and Red mahogany to conclude that genuine mahogany is a different product in important ways from Swamp, Santos, and Red mahogany. The Complaint also alleges that only wood from Meliaceae family trees can truly be called mahogany and that wood derived from other species and sold by Home Depot is not mahogany. Plaintiff has alleged sufficient facts to support his claim that only wood from certain species in the Meliaceae family is genuine mahogany. Assuming the Plaintiff's allegations to be true, as the Court must at the motion to dismiss stage, it follows from the assertion that non-Meliaceae woods are not genuine mahogany, and that advertising such lumber as mahogany is a false statement. Accordingly, the Defendant's motion to dismiss for failure to allege falseness and failure to meet the Rule 9(b) pleading standard is denied. Justifiable Reliance The Defendant contends that the Plaintiff did not justifiably rely on any misrepresentation because he should have investigated the label Swamp mahogany and should have been alerted by the low price of Home Depot's lumber that he was not purchasing genuine mahogany. The Plaintiff has not advanced any claim for common law fraud in this matter. Justifiable reliance simply is not an element that must be pled in all claims sounding in fraud under Rule 9(b). Certain claims which sound in fraud may have justifiable reliance as an element, and all fraud claims when brought in this Circuit must meet Rule 9(b)'s particularity requirement but Rule 9(b) functions independently of the specific elements which must be pled to state a given claim. Defendant has not specified which, if any, of the Plaintiff's particular claims have justifiable reliance as an element in this matter. Accordingly, the Defendant's motion to dismiss on the basis that Plaintiff has not pled justifiable reliance is denied. Reasonable Consumer The Defendant challenges the Plaintiff's claims under the CLRA, UCL, and FAL, arguing that Plaintiff has not alleged facts showing that a reasonable consumer would likely be deceived by the term "mahogany" as used by Home Depot in its labeling. The Plaintiff argues in response that Home Depot's advertising statements are not puffery and are actionable because they are specific detailed factual assertions. The descriptor premium may be, in at least some contexts, puffery that does not convey a specific, measurable promise about the goods advertised. The Plaintiff's claims are not premised, however, only on the usage of vague adjectives to describe the general quality of Home Depot's lumber. The thrust of the Plaintiff's complaint is that Home Depot's use of the word mahogany was itself misleading, and that, in the context that they were used, the words premium and finest grade supported consumers' impressions that they were purchasing a more valuable or useful type of wood than they actually did. Accordingly, the Court finds that Home Depot's representations, as alleged by the Plaintiff, could have misled a reasonable consumer, and the Defendant's motion to dismiss on this ground is denied. Factual Challenges to Particular Claims Claim 2: Breach of Implied Covenant of Good Faith and Fair Dealing The Defendant argues that the Plaintiff has not alleged facts supporting his contention that Home Depot knew or deliberately disregarded the fact that it sold false mahoganies and that the Plaintiff's expectations regarding the species of the mahogany purchased were unreasonable, and the Plaintiff has therefore failed to state a claim for breach of the implied covenant of good faith and fair dealing. The Plaintiff's claim for breach of the covenant of good faith and fair dealing is premised on the allegation that Home Depot knew or deliberately disregarded the fact that the lumber products it sold to the Plaintiff was a false mahogany. The Plaintiff has not alleged, however, that the Defendant took any action to frustrate the Plaintiff's ability to enjoy the benefits of the contract, that is, use of the wood he purchased, but rather alleges that the Defendant misrepresented the type and quality of the wood and so induced Plaintiff to pay more than he otherwise would have. This type of conduct is not actionable as a breach of the implied covenant of good faith and fair dealing The Defendant's motion to dismiss the Plaintiff's claim for breach of good faith and fair dealing is therefore granted. Claims 3 and 5: CLRA and UCL Unlawfulness The Defendant asserts that the Plaintiff failed to allege either that an issue of product safety required Home Depot to disclose the species of the wood it sold as mahogany, or that Home Depot made an affirmative misrepresentation of the species, and therefore has not pled all the required elements for a CLRA and UCL unlawfulness claim. The Plaintiff argues that he has alleged a material misrepresentation, and that his UCL and CLRA claims do not require any showing of intent. The Plaintiff has alleged that the Defendant represented that its lumber products were mahogany and failed to disclose that the actual species of the wood sold was not mahogany. Taking the Plaintiff's allegations regarding the species of tree that are considered to be genuine mahogany as true, this allegation is sufficient to state a claim under the CLRA that there was an omission which was contrary to a representation made by Defendant and which was likely to mislead a consumer. The Defendant's motion to dismiss Plaintiff's CLRA and UCL unlawfulness claims is denied. Claim 8: Negligent Misrepresentation The Defendant asserts that the Plaintiff has not alleged a viable negligent misrepresentation claim because California's economic loss rule bars such a claim when premised on a breach of contract. The Plaintiff has not advanced any argument why the economic loss doctrine does not bar his claim for negligent misrepresentation. He has also not identified any injury not purely economic in nature, or any other special relationship or situation which would warrant an exception to the economic loss rule. The Court finds that the economic loss rule bars the Plaintiff's negligent misrepresentation claim, and the Defendant's motion to dismiss that claim is granted. Claim 9: Unjust Enrichment The Defendant argues that, under California law, unjust enrichment does not constitute a freestanding cause of action, and is instead a remedy. The Plaintiff does not contend that unjust enrichment is anything but a remedy available to make a plaintiff whole from, among other things, fraud. California courts have concluded that unjust enrichment is not a cause of action, just a restitution claim. The Defendant's motion to dismiss the Plaintiff's claim for unjust enrichment is therefore granted with leave to amend. Claim 10: Express Warranty The Defendant contends that the Plaintiff's complaint does not set forth a claim for breach of express warranty because the Plaintiff has not alleged that he relied on a written statement by Home Depot, but rather on oral statements from Home Depot employees. To maintain a breach of express warranty claim, a plaintiff must allege that the seller (1) made an affirmation of fact or promise or provided a description of its goods; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff. The Plaintiff's Complaint alleges that Home Depot made representations about the quality of its mahogany products within its brick and mortar stores, and that the Plaintiff relied on representations made by Home Depot orally, through in-store labels, tags and signage and online. The Plaintiff has alleged facts showing that he relied on written statements by Home Depot to state a claim for breach of express warranty. The Defendant's motion to dismiss the Plaintiff's claim for breach of express warranty is denied. A full-text copy of the District Court's May 31, 2017 Memorandum Decision and Order is available at https://tinyurl.com/ycdck92f from Leagle.com. Clyde Golden, individually and on behalf of all others similarly situated, Plaintiff, represented by Keith L. Altman -- kaltman@lawampmmt.com -- Keith Altman, Excolo Law PLLC. Home Depot U.S.A, Inc., Defendant, represented by John R. Lawless -- jlawless@kslaw.com -- King & Spalding LLP, Marisa C. Maleck -- mmaleck@kslaw.com -- King & Spalding LLP, pro hac vice & Sidney Stewart Haskins -- shaskins@kslaw.com -- King & Spalding, pro hac vice. HUMAN CARE LLC: Removes "Tokhtaman" Suit to S.D. New York --------------------------------------------------------- The Defendant in the case of Nina Tokhtaman, individually and on behalf of all others similarly situated, Plaintiff v. Human Care, LLC, Defendant, filed a notice to remove the lawsuit from the Supreme Court of the State of New York, County of New York (Case No. 151268/2016) to the U.S. District Court for the Southern District of New York on June 29, 2018, and assigned Case No. 1:18-cv-05907-VEC (S.D.N.Y., June 29, 2018). The case is assigned to Judge Valerie E. Caproni. Human Care LLC imports, markets, and installs patient lifting systems. Human Care LLC formerly was known as US Medical LLC and changed its name to Human Care LLC in 2006. The company is based in Tulsa, Oklahoma. As of February 08, 2006, Human Care LLC is a subsidiary of Human Care HC AB. [BN] The Plaintiff is represented by: Daniel Sergio Gomez-Sanchez, Esq. LITTLER MENDELSON, P.C. 290 Broadhollow Road Suite 305 Melville, NY 11747 Telephone: (631) 247-4700 Facsimile: (631) 824-9249 E-mail: dsgomez@littler.com HYUNDAI MOTOR: "Brown" Suit Alleges Warranty Violations ------------------------------------------------------- Elizabeth Brown, individually and on behalf of all others similarly situated v. Hyundai Motor America, and Hyundai Motor Company, Ltd., Case No. 2:18-cv-11249 (D. N.J., June 29, 2018), is brought against the Defendants for breach of express and implied warranty, breach of written warranty under the Magnuson- Moss Warranty Act, violations of the New Jersey Consumer Fraud Act, common law fraud and unjust enrichment. This consumer class action arises from a latent defect found in model year 2011 through 2016 Hyundai Elantra cars with "Nu" 1.8- liter engines (the "Class Vehicles"). First unveiled with MY 2011 Hyundai Elantras, defects in the piston assemblies of the Nu 1.8L engines within the Class Vehicles cause total and irreparable engine failures, the symptoms of which include a knocking noise from the engine while the car is warming up after being started and/or while driving (the "Piston Defect"). Once the fateful engine knock sound begins, the Class Vehicle's engine will inevitably fail completely, causing a loss of engine power, power steering and brake assistance which can lead to stalling while the Class Vehicle is in motion and place the operator of the Class Vehicle, and those that share the road with them, at risk of accident, injury, or death. Once the Piston Defect has manifested, the engine block has been damaged beyond repair. Therefore, the only fix is replacement of the engine, which can cost upwards of $10,000. The Plaintiff Liz Brown is a citizen of the State of New Jersey and resides in Avenel, New Jersey. In August 2013, Plaintiff Liz Brown purchased a new 2013 Hyundai Elantra Limited, containing a "Nu" 1.8 liter engine, from Avenel Sansone Auto Group, an authorized Hyundai dealer and repair center located in Avenel, New Jersey. The Defendants are automobile design, manufacturing, distribution, and/or service corporations doing business within the United States. The Defendant Hyundai Motor Company, Ltd. is a South Korean corporation. HMC is the parent corporation of Hyundai Motor America, Inc. [BN] The Plaintiff is represented by: Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 555 Lancaster Avenue Berwyn, PA 19312 Tel: (610) 200-0581 E-mail: mds@sstriallawyers.com jbk@sstriallawyers.com INTEL CORP: PC Users Sue Over Processor Defect ---------------------------------------------- Joshua Blau, Christopher Gulley, Hosea Williams III, Debora Greene, Barbara Clabaugh, Ralph Morton, Claude Vogel, Margarite Sampson, Marvin Feiges, Yvette Norris, Katharn Waterman, Kierston Pierce, Tami Riecke, Lee Booth, Karem Horne, Alma Jennings, J.P. Richards Jr., James Bradshaw, Carl Demonbrun, Michael Straub, Ron Moreno, Matthew Kleinmann, Clarence Feldner, Deborah Knapp, Sandra Lessner, Joseph Anderson, Donald Cougle, Arthur J. Hoffman III, Jill Levin, Gregory Sadler, Virginia Cardoza, Debra Austin, Jamal Elakrah, Troy Mowery, Steven Fowler, Jack Mezzel, Carol Marziale, Darcy Hackel, and James Heise, individually and on behalf of all others similarly situated, Plaintiff, v. Intel Corporation, Defendant, Case No. 18-cv-00820, (D. Or., May 11, 2018), seeks all proper measures of monetary relief and damages, plus interest, equitable, injunctive and declaratory relief including restitution and disgorgement, costs of suit, including reasonable attorneys' fees and expenses and such further relief resulting from fraudulent concealment, negligence, unjust enrichment and breach of implied warranty and violation of various state consumer protection laws. Intel manufactures the central processing units (CPU) that power most servers, laptops, desktop computers, tablets, smartphones, and other computing devices. According to the Plaintiffs, said CPUs suffer from several defects that allow hackers to access to what was supposed to be secure data. These defects cannot be fixed remotely via a software update while any mitigation efforts would seriously affect CPU performance. Plaintiffs are computer owners who claim that their units manifest the said defects. [BN] Plaintiffs are represented by: Richard S. Yugler, Esq. Christine N. Moore, Esq. LANDYE BENNETT BLUMSTEIN LLP 1300 SW 5th Avenue, Suite 3600 Portland, OR 97201 Tel: (503) 224-4100 Fax: (503) 244-4133 Email: ryugler@lbblawyers.com Email: cmoore@lbblawyers.com - and - Gary S. Graifivan, Esq. Jay Brody, Esq. KANTROWITZ GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Rd. Chestnut Ridge, NY 10977 Tel: (845) 356-2570 Fax: (845) 356-4335 Email: ggraifman@kgglaw.com Email: jbrody@kgglaw.com - and - Melissa R. Emert, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Tel: (212) 687-7230 Fax: (212) 490-2022 Email: memert@ssbny.com - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street NE, Ste. 302 Washington, DC 20002 Tel: (202) 470-3520 Email: nmigliaccio@classlawdc.com jrathos@classlawdc.com - and - Patrice L. Bishop, Esq. STULL, STULL & BRODY 9430 W. Olympic Blvd., Suite 400 Beverly Hills, CA 90212 Email: service@ssbla.com Tel: (310) 209-2468 Fax: (310) 209-2087 INTEL CORP: 2 Securities Fraud Suits Consolidated ------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted Louisiana Sheriffs' motion to consolidate the related cases, MEERAIN ALI, Plaintiff, v. INTEL CORPORATION, ET AL., Defendants. LOUISIANA SHERIFFS' PENSION & RELIEF FUND, Plaintiff, v. INTEL CORPORATION, ET AL., Defendants, Case Nos. 18-cv-00507-YGR, 18-cv-01460-YGR (N.D. Cal.), for appointment of the lead Plaintiff, and for approval of selection of the lead counsel. Intel investors Meerain Ali and Daniel E. Tavares ("Individual Investor Group") oppose the motion with respect to appointment of the lead Plaintiff and approval of the lead counsel, but do not dispute that consolidation is warranted. Judge Rogers concludes that consolidation is warranted. Ali and Louisiana Sheriffs bring claims against substantially similar defendants, and both allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, based upon the same types of misstatements by Intel and certain of its senior officers regarding the security and performance of Intel's processors. Though the class period in the two actions have different start dates -- July 27, 2017 for Ali and Oct. 27, 2017 for Louisiana Sheriffs -- both class periods end on Jan. 4, 2018, and both putative classes involve, at a minimum, all persons who purchased Intel stocks during the relevant class periods. The Related Actions thus present questions of law and fact that overlap almost completely. Accordingly, the Related Actions should be consolidated. The Judge next finds that Louisiana Sheriffs' submitted declaration certifies that it suffered losses of approximately $67,658 on its investments in Intel stock during the period of July 27, 2017 through Jan. 4, 2018 on both a last-in, first-out ("LIFO") and a first-in, first-out ("FIFO") basis. The Individual Investor Group's asserted loss is $1,232. Louisiana Sheriffs also appears to have made a prima facie showing of typicality and adequacy under Rule 23(a). Accordingly, the Judge finds that Louisiana Sheriffs is the appropriate lead Plaintiff. Louisiana Sheriffs represents that Bernstein Litowitz is among the preeminent securities class action law firms in the country and served as the lead counsel in a case involving one of the largest recoveries in securities class action history. Because Louisiana Sheriffs has made a reasonable choice of counsel, the Judge will defer to that choice. In sum, for these reasons, Judge Rogers granted Louisiana Sheriffs' motion to consolidate the Ali and Louisiana Sheriffs actions, for appointment as the lead Plaintiff, and for approval of selection of the lead counsel; and denied the Individual Investor Group's competing request. She consolidated two Related Actions for all purposes, appointed Louisiana Sheriffs as the lead Plaintiff of the Consolidated Action, and appointed Bernstein Litowitz as the lead counsel to represent the putative class in the Consolidated Action. A consolidated complaint will be filed within 21 days of the Order, and any responsive pleadings will be filed within 35 days thereafter. The Clerk is directed to consolidate Meerain Ali v. Intel Corporation, et al., 18-cv-00507-YGR, and Louisiana Sheriffs' Pension & Relief Fund v. Intel Corporation, et al., 18-cv-01460- YGR, for all purposes. The consolidated action will be captioned "In re Intel Corporation Securities Litigation," 18-cv-00507-YGR. All files will now be kept in one "lead case" or "master case" file. The Clerk will also close 18-cv-01460-YGR, and all future filings will be lodged in 18-cv-00507-YGR. The caption in 18-cv-00507- YGR will be updated to reflect all the parties who have appeared in both actions. To the extent future cases are filed that may be related, the parties will follow the procedures outlined in Civil Local Rule 3-12. The parties may also file stipulations or motions to consolidate if appropriate. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/498Hp3 from Leagle.com. Meerain Ali, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP & Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP. Intel Corporation, Defendant, represented by Margaret Ann Keeley -- mkeeley@wc.com -- Williams and Connolly, John Michael Gildersleeve -- John.Gildersleeve@mto.com -- Munger, Tolles, Olson LLP & Xiao Wang -- xwang@wc.com -- Williams and Connolly LLP. Brian M. Krzanich & Robert H. Swan, Defendants, represented by Margaret Ann Keeley, Williams and Connolly & Xiao Wang, Williams and Connolly LLP. Louisiana Sheriffs' Pension & Relief Fund, Movant, represented by David Ronald Stickney -- davids@blbglaw.com -- Bernstein, Litowitz, Berger & Grossmann & David Reuven Lev Kaplan -- davidk@blbglaw.com -- Bernstein Litowitz Berger and Grossmann LLP. Daniel E. Tavares & Meerain Ali, Movants, represented by Jennifer Pafiti, Pomerantz LLP & Patrick V. Dahlstrom, Pomerantz LLP. INTERNATIONAL BUSINESS: "Bishop" Suit Alleges ADA Violation ----------------------------------------------------------- Cedric Bishop, on behalf of himself and all others similarly situated v. International Business Machines Corporation dba IBM, Case No. 1:18-cv-05854 (S.D. N.Y., June 28, 2018), is brought against the Defendant for violation of the Americans with Disabilities Act, the New York State Human Rights Law, and New York City Human Rights Law. The Plaintiff brings this civil rights action against the Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Plaintiff is a resident of New York and is a visually- impaired and legally blind person who requires screen reading software to read website content using his computer The Defendant operates IBM Centers as well as the IBM website, and offers it to the public and offers features that should allow all consumers to access the facilities and services that Defendant offers regarding its Centers. The Defendant operates IBM Centers across the United States, with at least one of its Centers located in New York City at 51 Astor Place, New York, NY 10003. [BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Tel: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com INTERNATIONAL PAPER: Court Narrows Claims in "Arroyo" Suit ---------------------------------------------------------- In the case, ELISA ARROYO, Plaintiff, v. INTERNATIONAL PAPER COMPANY, Defendant, Case No. 17-cv-06211-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted in part and denied in part, with leave to amend in part and without leave to amend in part, the Defendant's motion to dismiss. Arroyo brings the putative class action against Defendant IPC, asserting wage and hour and unfair competition claims based on IPC's alleged practices of failing to pay employees for time spent donning and doffing protective gear and failing to reimburse employees for monies expended on uniforms. Arroyo was a class member in a prior wage and hour class action against IPC, Letuligasenoa v. International Paper Company, et al., which resulted in a settlement and release of all claims which were or could have been brought in that action for the class period Oct. 4, 2009 through Jan. 27, 2017. IPC asserts that all of the claims asserted in the present action were or could have been brought in Letuligasenoa and thus that Arroyo is barred from asserting those claims for time periods which overlap the Letuligasenoa class period. IPC moves to dismiss Arroyo's first amended complaint ("FAC"), and specifically Claims 4 and 5, to the extent that Arroyo seeks damages and penalties for time periods prior to Jan. 27, 2017. IPC also seeks dismissal of the entire FAC for failure to state a claim upon which relief may be granted. Having determined that the motion is appropriate for disposition without oral argument, Judge Freeman vacated the hearing set for June 7, 2018. IPC moves to dismiss Claim 4, alleging violations of California Labor Code Section 226, and Claim 5, brought under California's Private Attorney General Act ("PAGA"), to the extent they seek damages and penalties for time periods prior to Jan. 27, 2017. It argues that dismissal is appropriate under both Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. Judge Freeman agrees that to the extent Claims 4 and 5 were released in Letuligasenoa, dismissal is appropriate under Rule 12(b)(1) on the basis that no case or controversy exists, and under Rule 12(b)(6) on the basis that Letuligasenoa raises a collateral estoppel bar to and extinguishes the claims. She concludes that the Letuligasenoa settlement and release bars Claim 4, asserting violations of Section 226, to the extent it seeks damages and penalties for time periods prior to Jan. 27, 2017. Arroyo's current claims under Sections 226(a)(2) and (a)(9) could have been raised in the Letuligasenoa action based on the facts, conduct, and/or omissions alleged in the Letuligasenoa complaint. Accordingly, the Judge granted without leave to amend the motion to dismiss as to Claim 4 to the extent it seeks damages and penalties for time periods prior to Jan. 27, 2017. The Judge also concludes that the Letuligasenoa settlement and release bars the bulk of Claim 5, asserted under PAGA, to the extent it seeks damages and penalties for time periods prior to Jan. 27, 2017. The Letuligasenoa complaint asserted a PAGA claim based on most of the same California Labor Code sections, and the same facts, which give rise to the PAGA claim asserted by Arroyo in Claim 5 of the FAC. The bar does not extend, however, to the portions of Claim 5 based on IPC's alleged practice of failing to reimburse employees for monies expended on uniforms. Accordingly, the Judge granted without leave to amend the motion to dismiss as to Claim 5 to the extent it seeks damages and penalties for time periods prior to Jan. 27, 2017, except as to those portions of Claim 5 based on IPC's alleged practice of failing to reimburse employees for monies expended on uniforms, as to which the motion is denied. IPC also moves to dismiss all claims of the FAC for failure to state a claim upon which relief may be granted. The Judge finds that all of Arroyo's claims are framed in generic terms. The Court previously has held that an employee's generic and conclusory allegations are insufficient to plausibly state claims for a "wide swath of Labor Code violations." The Judge notes that Arroyo mischaracterizes IPC's motion as seeking an improper determination regarding her fitness as a class representative and/or seeking a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). IPC seeks neither of those things, but rather seeks dismissal of Arroyo's claims under Rules 12(b)(1) and (b)(6). Accordingly, the Judge needs not and does not address Arroyo's arguments regarding class certification and more definite statement. The motion to dismiss is granted with leave to amend as to all claims on the basis that Arroyo has failed to state a claim upon which relief may be granted. A full-text copy of the Court's May 30, 2018 Order is available at https://is.gd/C4s1lE from Leagle.com. Elisa Arroyo, Plaintiff, represented by Dennis Sangwon Hyun -- dhyun@hyunlegal.com -- Hyun Legal APC, Kristen Michelle Agnew -- kagnew@diversitylaw.com -- Diversity Law Group, APC, Larry W. Lee -- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Nicholas Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group & William Lucas Marder -- bill@polarislawgroup.com -- Polaris Law Group, LLP. International Paper Company, a New York corporation, Defendant, represented by Megan Emily Walker -- mewalker@fisherphillips.com -- Fisher Phillips, LLP & Aaron Franklin Olsen -- aolsen@fisherphillips.com -- Fisher & Phillips, LLP. JEFFERSON CAPITAL: Faces "Autry" Suit in E.D. Wisconsin ------------------------------------------------------- A class action lawsuit has been filed against Jefferson Capital Systems LLC. The case is styled as Jennifer Autry and Derek Volkman, individually on behalf of all others similarly situated, Plaintiffs v. Jefferson Capital Systems LLC and Rausch Sturm Israel Enerson & Hornik LLC, Defendants, Case No. 1:18-cv-01078 (E.D. Wis., July 13, 2018). Jefferson Capital Systems LLC is a debt collection agency in St. Cloud, Minnesota.[BN] The Plaintiff is represented by: Andrew T Thomasson, Esq. Stern Thomasson LLP 150 Morris Ave-2nd Fl Springfield, NJ 07081 Tel: (973) 379-7500 Fax: (973) 532-5868 Email: andrew@sternthomasson.com KANONI INC: Faces "Tiquiram" Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Kanoni, Inc. The case is styled as Mateo Utuy Tiquiram, Bulmaro Miguel Hernandez and Enrique Carlos Viveros, individually and on behalf of all others similarly situated, Plaintiffs v. Kanoni, Inc. d/b/a Arch Diner, Dimitrios Kaloidis and John Does #1-4 jointly and severally, Defendant, Case No. 1:18-cv-04044 (E.D. N.Y., July 13, 2018). Kanoni, Inc. is a retro diner dating back to the '70s known for a wide range of American fare served morning to night.[BN] The Plaintiff appears PRO SE. KRS BIOTECHNOLOGY: Class Certification in "Sawyer" Denied --------------------------------------------------------- In the case, WILLIAM P. SAWYER d/b/a SHARONVILLE FAMILY MEDICINE, Plaintiff, v. KRS BIOTECHNOLOGY, INC., et al., Defendants, Case No. 1:16-cv-550 (S.D. Ohio), Magistrate Judge Stephanie K. Brown of the U.S. District Court for the Southern District of Ohio, Western Division, recommended the denial of the Plaintiff's motion for class certification. The Plaintiff filed the case against KRS as a putative class action under the "junk fax" provision of the Telephone Consumer Protection Act of 1991 ("TCPA"). Sawyer, is a primary care practice located in Sharonville, Ohio. The Plaintiff has a telephone number that is used to receive faxes. KRS is a Florida compounding pharmacy with nearly 90 employees and a principal place of business in Boca Raton, Florida. KRS sent an unsolicited one-page advertisement to Sharonville Family Medicine on Oct. 9, 2015. The fax promoted KRS's IV infusion sets and/or other products and services. The Defendant admits that KRS and Sawyer had no prior business relationship, and that KRS did not seek or obtain permission from Sharonville Family Medicine to send the Infusion Kit Fax prior to doing so. Although the Defendant admits TCPA liability with regard to Plaintiff Sawyer, it maintains that the fax sent to Sawyer was in violation of KRS' established business practices, and vigorously disputes the allegation that it sent any unsolicited faxes to anyone other than Sawyer. KRS' telecommunications services provider in October 2015 was called RingCentral. In response to a subpoena, RingCentral produced KRS' call and fax log data in the form of an excel spreadsheet. The fax log contains information concerning the number of fax transmissions, the phone numbers dialed, and whether the transmissions were successful. On most days, the fax log reflects the transmission of only about a dozen faxes. However, on a few days in 2015, KRS transmitted tens of thousands of faxes. KRS was able to transmit such a large number of faxes, a practice referred to as "fax blasting," by using one or more employee's computer(s) to send an image to a database of fax numbers through RingCentral. Based upon the fax log, the largest number of outgoing fax transmissions occurred on Oct. 8 and Oct. 9, 2015 when KRS allegedly transmitted a total of 34,773 outbound faxes, 99.4% of which originated from the same number as the number used to send the Plaintiff the Infusion Kit Fax. KRS disputes that it faxed 34,773 copies of the Infusion Kit Fax, but admits it transmitted between 1,000 and 10,000 of that advertisement. It maintains that the remainder of the 34,773 faxes were business communications. The fax log reflects only that a fax was transmitted, not the content of the fax. The Plaintiff's complaint also alleges that the Infusion Kit Fax did not display a proper opt-out notice. Refining the definition of the putative class in its motion for class certification, the Plaintiff seeks to represent 34,773 recipients of faxes transmitted by KRS, defined as all subscribers of accounts (or other persons/entities) associated with the (1) fax numbers listed in the RingCentral spreadsheet (2) that were successfully sent a fax from KRS (3) from the phone number (888) 502-2050; (4) with a start time of Oct. 8 or Oct. 9, 2015. In addition to the Plaintiff's claims under the TCPA, the Plaintiff seeks relief under the Ohio Deceptive Trade Practices Act based upon a portion of the content of the Infusion Kit Fax. Magistrate Judge Brown held a hearing on May 14, 2018. She agrees that the fax log evidence is insufficient to carry the Plaintiff's affirmative burden to show predominance because: (a) the Defendant has offered testimony that its practice was to send faxes only to those who "solicited" or gave permission/consent to the receipt of faxes, and neither the fax log nor any other evidence rebuts that evidence; and (b) the fax log does not reflect precisely what was faxed to each of the 34,773 numbers. The Magistrate Judge also finds that the fax logs confirm the primary fax number used by the Defendant, and that the 34,773 faxes were sent on Oct. 8 and 9, 2015. However, the fax logs do not reveal the content of the faxes that were transmitted, whether the Infusion Kit Fax that the Plaintiff received, some other type of marketing flyer (the Defendant produced approximately 10), or some form of business communication. Based on the failure of the Plaintiff to show predominance, she also finds no need to reach KRS' alternative argument that the fax logs show only that faxes were sent, not what was sent. With respect to the Plaintiff's Rule 23(a) showing, she finds that (i) the Plaintiff would be able to satisfy numerosity, based on the Defendant's admission that it sent the same fax to more than one thousand recipients; (ii) it is not clear that the mere fact that each of the 34,773 recipients received some form of fax is enough, given the Plaintiff's failure to demonstrate even one other instance of a recipient in the proposed class who received the same "unsolicited" fax; (iii) because the Plaintiff has not made any showing to suggest that each class member received the same fax or that each class member received an "unsolicited" ad, it does not appear that the Plaintiff has demonstrated typicality; and (iv) the Plaintiff fails to show evidence that he'd an adequate class representative. For these reasons, Magistrate Judge Brown denied the Plaintiff's motion for class certification. A full-text copy of the Court's May 30, 2018 Report & Recommendation is available at https://is.gd/XkI6y0 from Leagle.com. William P. Sawyer, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by George Demetrios Jonson -- GJonson@mrjlaw.com -- Montgomery, Rennie & Johnson & Matthew E. Stubbs -- MStubbs@mrjlaw.com -- Montgomery, Rennie & Jonson. KRS Global Biotechnology, Inc., Defendant, represented by Paula Milsom Brown -- pbrown@kravitzllc.com -- Kravitz, Brown & Dortch, LLC, Richard R. Parsons -- rparsons@kravitzllc.com -- Kravitz Brown & Dortch LLC, Eric Bravin -- info@ellslaw.com -- Ellsworth Law Firm, P.A., pro hac vice & Sean M. Ellsworth, Ellsworth Law Firm, P. A., pro hac vice. LAUNDRY LAND: Escobar Sues Over Unpaid OT, Spread-of-Hours Pay -------------------------------------------------------------- Gricelda Escobar, on behalf of herself and others similarly situated, Plaintiff, v. Laundry Land, Inc. and Anthony Y. Giuliano, Defendants, Case No. 18-cv-04246 (S.D. N.Y., May 11, 2018), seeks to recover unpaid minimum wages, spread-of-hours wages, earned wages and overtime compensation together with liquidated damages, compensatory damages, pre-judgment and post- judgment interest and attorneys' fees and costs under the Fair Labor Standards Act and New York Labor Law. Escobar worked as a laundry attendant at Laundryland, a laundromat located in Yonkers, New York and owned by Anthony Y. Giuliano. Plaintiff was scheduled to work more than forty hours per week but was never paid overtime for her hours worked in excess of forty hours per week despite occasionally required to work double shifts. [BN] Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, Suite 307 New York, NY 10007 Telephone: (212) 323-6980 Facsimile: (212) 233-9238 Email: jaronauer@aronauerlaw.com MACFARLANE GROUP: Faces Williams-Stermel Suit in E.D. Pa. --------------------------------------------------------- A class action lawsuit has been filed against MacFarlane Group, Inc. The case is captioned as CHRISTINA WILLIAMS, and MICHAEL STERMEL, individually and on behalf of all others similarly situated, Plaintiffs v. MACFARLANE GROUP, INC.; MEDLEY OPPORTUNITY FUND II, LP; MARK CURRY; BRIAN MCGOWAN; VINCENT NEY; and JOHN DOE, Defendants, Case No. 2:18-cv-02747-MSG (E.D. Pa., June 29, 2018). The Case is assigned to Honorable Mitchell S. Goldberg. MacFarlane Group, Inc. offers business and marketing consulting, develops customized software and offers call center support services. The company was founded in 2010 and is based in Mission, Kansas. As of October 13, 2016, MacFarlane Group, Inc. operates as a subsidiary of Otoe-Missouria Tribe Of Indians. [BN] The Plaintiff is represented by: Michael J. Quirk, Esq. BEREZOFSKY LAW GROUP, LLC 40 West Evergreen Avenue, Suite 104 Philadelphia, PA 19118-3324 Telephone: (856) 667-0500 Facsimile: (267) 273-7769 E-mail: mquirk@eblawllc.com - and - Sarah Hansel, Esq. BEREZOFSKY LAW GROUP, LLC 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002 Telephone: (856) 667-0500 Facsimile: (856) 667-5133 E-mail: shansel@eblawllc.com MATRIX TRUST: Youngblood and Steinbach Sue over Retirement Plans ---------------------------------------------------------------- DAVE YOUNGBLOOD and DON STEINBACH, individually and on behalf of all others similarly situated, Plaintiffs v. MATRIX TRUST COMPANY, Defendant, Case No. 1:18-cv-01625-CMA-NYW (D. Colo., June 27, 2018) is a class action on behalf of the Plaintiffs and other retirement plan accountholders whose investments were mismanaged by the Defendants. The Plaintiffs alleges in the complaint that from May to October 2017, the Defendants made several substantial transfers of plan assets directly to Vantage Benefits Administrators, per Vantage's directions for same, without direction or authorization from the plan administrators or accountholders. Pursuant to Vantage's instructions communicated through a third party-administrator online portal, the Defendant fraudulently transferred at least $3,000,000 from the plan accounts in its custody, resulting in the substantial diminution of the plan accounts. Matrix Trust Company operates as a subsidiary of Matrix Financial Solutions, Inc. [BN] The Plaintiff is represented by: Patrick D. Vellone, Esq. Rachel A. Sternlieb, Esq. ALLEN VELLONE WOLF HELFRICH & FACTOR P.C. 1600 Stout Street, Suite 1100 Denver, CO 80202 Telephone: (303) 534-4499 Facsimile: (303) 893-8332 E-mail: pvellone@allen-vellone.com rsternlieb@allen-vellone.com - and - Bruce Steckler, Esq. Katherine R. Grosskopf, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Rd. Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: bruce@stecklerlaw.com katie@stecklerlaw.com - and - John T. Palter, Esq. PALTER STOKLEY SIMS, PLLC Preston Commons East 8115 Preston Road, Suite 600 Dallas, TX 75225 Telephone: (214) 888-3111 Facsimile: (214) 888-3109 E-mail: jpalter@palterlaw.com MDL 1446: Petition for Certiorari Filed in Giancarlo Suit --------------------------------------------------------- The petitioners in the case of SAMUEL GIANCARLO, CARLOS ALSINA, M.D., individually and on behalf of all others similarly situated, Petitioners v. UBS FINANCIAL SERVICES, INCORPORATED; UBS SECURITIES, L.L.C.; UBS AG; UBS O'CONNOR, L.L.C., Respondents, (Case No. 4:2003cv04359, S.D. Tex.) have filed a petition for writ of certiorari to review the judgment of the U.S. Court of Appeals for the Fifth Circuit. The "Giancarlo" suit is a member case in the multi-district litigation proceeding, In Re Enron Corporation Securities, Derivative & "ERISA Litigation, MDL No. 1446. UBS Financial Services Inc. provides financial advisory services to high net worth individuals in the United States. It was formerly known as UBS PaineWebber Inc. and changed its name to UBS Financial Services Inc. in June 2003. The company was founded in 1879 and is based in Weehawken, New Jersey. As of November 3, 2000, UBS Financial Services Inc. operates as a subsidiary of UBS Americas, Inc. [BN] The Plaintiff is represented by: Dawn R. Meade, Esq. David Augustus, Esq. Bonnie E. Spencer, Esq. THE SPENCER LAW FIRM 4635 Southwest Freeway, Suite 900 Houston, TX 77027 Telephone: (713) 961-7770 E-mail: dawnmeade@spencer-law.com davidaugustus@spencer-law.com bonniespencer@spencer-law.com MDL 2418: Court Dismisses SAC of Qui Tam Plaintiff -------------------------------------------------- IN RE: PLAVIX MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION (NO. II). This Document Relates to: UNITED STATES OF AMERICA, et al., ex rel. JKJ Partnership 2011, LLP, Plaintiffs, v. SANOFI AVENTIS, U.S., LLC, et al., Defendants, Civil Action No. 11-6476 (FLW), MDL No. 2418 (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey (i) granted the Defendants' motion to dismiss the Second Amended Complaint of qui tam Plaintiff and relator JKJ Partnership 2011, LLP; and (ii) denied JKJ's cross motion for leave to amend. On Oct. 26, 2011, two doctors and a Sanofi sales representative formed JKJ, a Delaware Limited Partnership. JKJ was formed for the purpose of bringing the present litigation. On Nov. 4, 2011 -- nine days after it was formed -- JKJ filed the Original qui tam Complaint, identifying its partners anonymously as "Partner A," "Partner B," and "Partner C." In the Original Complaint, JKJ alleged, inter alia, that the Sanofi Defendants failed to disclose material adverse efficacy data regarding Plavix(R), as required by 21 C.F.R. Section 314.80 (governing post-marketing reporting of adverse drug experiences), causing physicians to prescribe, and Government Programs to reimburse, Plavix(R) for millions of patients who were genetically predisposed to experience diminished or no responsiveness to Plavix(R), rendering it little more than a placebo and placing the patients at significant risk. On Feb. 22, 2017, JKJ filed a Second Amended Complaint, further developing its claim of Plavix's ineffectiveness for certain patients based on their genetic makeup. In the Second Amended Complaint, JKJ alleges that the Defendants promoted Plavix as the standard of care for all antiplatelet and antithrombotic patients -- including patients who received stents -- notwithstanding their knowledge that the drug had little or no effect, and was therefore medically contraindicated, for over 30% of patients. The Defendants knew, but concealed the fact that their blockbuster drug Plavix had no demonstrable pharmacodynamics effect for many patients who had been prescribed the drug. They also knew that these non-responders or low responders were not entirely genetically random. Individuals whose ethnic background was African-American or Asian-American had a much higher risk of non-response to Plavix than other ethnicities. The Defendants referred to this as the Plavix Variability of Response ("VOR") issue. In that respect, JKJ claims that the Defendants made affirmative misrepresentations by systematically and deliberately promoting Plavix through false and misleading advertising and other marketing materials that overstated efficacy, and minimized critical adverse event and risk information. The Defendants would brand this their 'Expand and Protect' strategy. Indeed, JKJ avers that the Defendants created a logo used on Sales and Marketing material to stress and reflect this strategy. According to JKJ, based upon such a strategy, the Defendants "protected" Plavix by selling the drug's safety and efficacy in all patients in spite the fact that the Defendants knew it was false. At some point between the filing of the Original Complaint in November 2011, and the filing of the Second Amended Complaint in February 2017, Partner B left the JKJ partnership, and Dr. Paul A. Gurbel joined the JKJ partnership to replace him or her. After the substitution in membership came to light, the Court, at an Aug. 9, 2017 status conference, asked the parties to brief whether JKJ was a proper relator capable of continuing the litigation. In response to the Court's inquiry, on Oct. 11, 2017, the Defendants filed a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). In their motion, they argue that, (i) if JKJ is construed as the relator in its own right, the FCA's public disclosure bar precludes JKJ's claims; (ii) if JKJ is construed as a pass-through entity for its members, who are the real relators in the action, then JKJ lacks Article III associational standing to proceed as the Plaintiff in the case; (iii) JKJ's continuation as the plaintiff after the substitution of Dr. Gurbel for Partner B is prohibited by the FCA's first-to-file bar; and (iv) any curative amendment to add JKJ's members as Plaintiff relators is also prohibited by the first-to-file bar. Also, on Oct. 11, 2017, JKJ opposed the Defendants' motion and cross-moved, in the alternative, for leave to amend in order to name its current members, as well as JKJ, as the relator Plaintiffs in the action. Judge Wolfson finds that because the allegations in JKJ's Second Amended Complaint are not based on prior public disclosures regarding alleged misrepresentations (the X), the public disclosure bar does not apply to bar JKJ's claims. Turning next to the FCA's first-to-file bar, the Judge finds that it is clear that the current JKJ partnership of Partner A, Dr. Gurbel, and Partner C, as a non-party to the Original Complaint - - having not yet come into existence -- cannot, pursuant to the FCA's first-to-file bar, intervene in the action by being joined as a Plaintiff in the Second Amended Complaint. The Supreme Court clarified that a non-party can become a party to litigation only through intervention even where the nonparty is a real party in interest under Rule 17. Finally, she finds that at the filing of the Original Complaint in the action, the only party Plaintiff was the JKJ partnership of A, B, and C, not Partner A, B, or C as individuals, and certainly not Dr. Gurbel, who was a stranger to the litigation. The joinder of Partner A, Partner B, Partner C, or Dr. Gurbel through any procedural device at this juncture would constitute a party intervention under U.S. ex rel. Eisenstein v. City of New York, New York. Because the FCA's first to file bar unambiguously bars all such intervention, it applies in the case to prevent any further amendment to add the individual partners as Plaintiffs. JKJ's cross motion for leave to file a Third Amended Complaint will therefore be denied. For the foregoing reasons, Judge Wolfson concludes that the public disclosure bar does not apply to JKJ's claims, the first- to-file bar prevents JKJ from proceeding as the Plaintiff in the action after its change in membership, and the first-to-file bar prevents the joinder of JKJ's members as additional Plaintiffs in the action, rendering JKJ's amendment to add additional parties futile. Accordingly, she dismissed the Second Amended Complaint, and denied JKJ's cross motion for leave to amend. A full-text copy of the Court's May 30, 2018 Opinion is available at https://is.gd/HRPB2r from Leagle.com. Kenneth Petit, Plaintiff, represented by GERARD RYAN, III, PARKER WAICHMAN LLP, HUNTER J. SHKOLNIK -- hunter@napolilaw.com -- NAPOLI SHKOLNIK PLLC, MICHAEL S. WERNER & SHAYNA E. SACKS -- SSacks@napolilaw.com -- Napoli Shkolnik PLLC. Marcella Chesney, STATE OF ILLINOIS, Elisa Dickson, COMMONWEALTH OF MASSACHUSETTS, COMMONWEALTH OF VIRGINIA, STATE OF CALIFORNIA, STATE OF DELAWARE, STATE OF CONNECTICUT, STATE OF COLORADO, STATE OF FLORIDA, STATE OF GEORGIA, STATE OF INDIANA, STATE OF MICHIGAN, STATE OF MONTANA, STATE OF NEW HAMPSHIRE, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF NEVADA, STATE OF TENNESSEE, STATE OF TEXAS, State of New Jersey, STATE OF RHODE ISLAND, STATE OF OKLAHOMA, STATE OF WISCONSIN, STATE OF NORTH CAROLINA, STATE OF MINNESOTA, CITY OF CHICAGO, DISTRICT OF COLUMBIA & FLORENCE BOYCE, Plaintiffs, represented by HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. Raymond Snyder & Darlene Snyder, Plaintiffs, represented by HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, SHAYNA E. SACKS, Napoli Shkolnik PLLC & STEVEN D. HAMILTON, HAMILTON LAW FIRM PC. United States of America, Plaintiff, represented by Gerald M. Burke, Assistant U.S. Attorney, HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. STATE OF HAWAII, Plaintiff, represented by DANIEL ALBERTSTONE -- dalberstone@baronbudd.com -- HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. ANNA MARTIN & Betty Tarver, Plaintiffs, represented by DOUGLAS ROBERT PLYMALE, THE DUGAN LAW FIRM, HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, ROBERT BRENT CUERIA, CUERIA LAW FIRM LLC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. Eugene Thomas, Sr, Plaintiff, represented by ANITA TERRY TYE, H L PENICK & ASSOCIATES PC, HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, Henry L. Penick, PENICK & ASSOCIATES PC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. Robert J Budz, Plaintiff, represented by HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, SCOTT J. SCHAUB, KULLA RONNAU SCHAUB & CHAMBERS PC & SHAYNA E. SACKS, Napoli Shkolnik PLLC. Bill H. Thomas, Plaintiff, represented by BRENT J. MCINTOSH -- info@bilbolaw.com -- BILBO LAW OFFICE PC, DANIEL C. CLANTON, BILBO LAW OFFICE PC, pro hac vice, HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, JIMMY W. BILBO, BILBO LAW OFFICES & SHAYNA E. SACKS, Napoli Shkolnik PLLC. Barbara J. Thomas, Deceased - Plaintiff, represented by BRENT J. MCINTOSH, BILBO LAW OFFICE PC, DANIEL C. CLANTON, BILBO LAW OFFICE PC, pro hac vice, HUNTER J. SHKOLNIK, NAPOLI SHKOLNIK PLLC, JIMMY W. BILBO, BILBO LAW OFFICES & SHAYNA E. SACKS, Napoli Shkolnik PLLC. BRISTOL-MYERS SQUIBB COMPANY, SANOFI-AVENTIS U.S. LLC, SANOFI US SERVICES INC. & SANOFI-SYNTHELABO INC., Defendants, represented by DANIEL S. PARISER -- daniel.pariser@arnoldporter.com -- ARNOLD & PORTER, LLP, DAVID D. FAUVRE -- david.fauvre@arnoldporter.com - - ARNOLD & PORTER KAYE SCHOLER LLP, DAVID L. HARRIS -- dharris@lowenstein.com -- LOWENSTEIN SANDLER PC, GAVIN J. ROONEY -- grooney@lowenstein.com -- LOWENSTEIN SANDLER, PC & KEVIN CLINE -- kevin.cline@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP. NEZZAR BYRD, CHARLES COLE & MARCUS SHULTZ, individually, Defendants, represented by BARRETT BEASLEY, SALIM-BEASLEY LLC. SUSIE FARMER & ALVIN V. SKINNER, SR., Defendants, represented by TAYJES MATTHEW SHAH, THE MILLER FIRM LLC. NANCY BEDFORD, 17- Defendant, represented by MATTHEW B. MORELAND, BECNEL LAW FIRM LLC. ANITA ROY, Civil Case No. 3:15-cv-07526, individually and as Executor of the Estate of MAURICE ROY, deceased, Defendant, pro se. METHODIST HOSPITALS: Discrimination Suit Class Cert. Bid Tossed --------------------------------------------------------------- In the case, WHITE GLOVE STAFFING, INC., CAROLYN CLAY, LINDEY DANCEY, LEA REED, and KAMARIO SIMPSON, Individually, and on Behalf of a Class of Similarly Situated Individuals, Plaintiffs, v. METHODIST HOSPITALS OF DALLAS, and DALLAS METHODIST HOSPITALS FOUNDATION, Defendants, Civil Action No. 3:17-CV-1158-K (N.D. Tex.), Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas, Dallas Division, denied the Plaintiffs' Motion for Class Certification and Notice to Potential Plaintiff. White Glove, a staffing agency, entered contract negotiations to provide for the Defendants' staffing needs. During these initial negotiations, Defendants Methodist Hospitals of Dallas and Dallas Methodist Hospitals Foundation allegedly informed White Glove that the head chef preferred Hispanic employees. Before entering a contract, Methodist asked White Glove to provide Methodist with a prep cook. White Glove sent Plaintiff Carolyn Clay. Clay is African American. Allegedly, Clay worked for Methodist for only a few days before Methodist told White Glove that Clay was not working out and asked White Glove to send someone else. The next day, White Glove sent Clay back to Methodist because White Glove could not find another prep cook on short notice. Methodist allegedly asked Clay to leave. Methodist contacted White Glove and allegedly stated the head chef only wanted Hispanic employees. Later that day, Methodist ended contract negotiations and informed White Glove that it would not enter a staffing contract with White Glove. White Glove and Clay filed suit against Methodist for employment discrimination and retaliation. Plaintiffs Dancey, Reed, and Simpson joined the suit as African American individuals White Glove allegedly would have supplied to work for Methodist had Methodist entered the staffing contract. The Plaintiffs now seek class certification to include 40 to 75 other individuals who were allegedly discriminated against. The proposed class is defined as all employees of White Glove Staffing who would have been supplied to the Defendants to be banquet servers, prep cooks, dishwashers, and set-up crews. In its response, Methodist argues that the Plaintiffs' motion for class certification is untimely under Local Civil Rule 23.2, which requires a plaintiff to move for certification within 90 days of filing its class action complaint or as ordered by the court. The Plaintiffs argue they filed the motion after the 90- day deadline because some discovery needed to be completed to support the motion for class certification. Because some discovery was needed, Judge Kinkeade finds the motion for class certification is timely. However, he finds that the proposed class relies on multiple assumptions that cannot be readily verified. The proposed class assumes: (1) Methodist would have entered a staffing contract with White Glove; (2) Methodist would have asked White Glove to provide banquet servers, prep cooks, dishwashers, and set-up crews despite no evidence that the proposed contract included such a requirement; (3) White Glove would have sent each of the proposed class members in response to Methodist's hypothetical request; and (4) the proposed class members would be qualified, available, and agreeable to work at Methodist. The Judge holds these assumptions make the proposed class too vague and speculative. No additional discovery or time could clearly and objectively determine who would fall within this highly speculative class. Thus, the proposed class is too vague to be clearly ascertainable, as implicitly required under Rule 23. Because White Glove's proposed class is too speculative to meet the implicit ascertainability requirement, the Judge denied White Glove's motion for class certification. A full-text copy of the Court's May 29, 2018 Memorandum Opinion and Order is available at https://is.gd/IUcCXm from Leagle.com. White Glove Staffing Inc, Carolyn Clay, Kamario Simpson, Lindey Dancey & Lea Reed, Plaintiffs, represented by Matthew R. Scott -- matt.scott@cottperezlaw.com -- Scott Perez LLP, Carson Bridges, Scott & Perez LLP, Javier Perez, Scott Perez LLP, Royce West -- royce.w@westllp.com -- West & Associates LLP & Veretta L. Frazier -- veretta.f@westllp.com -- West & Associates LLP. Methodist Hospitals of Dallas & Dallas Methodist Hospitals Foundation Inc, Defendants, represented by Simon D. Whiting -- swhiting@brlaw.com -- Burford & Ryburn, L.L.P. & Nicole L. Tong - - ntong@brlaw.com -- Burford & Ryburn LLP. MILGARD MANUFACTURING: Faces "Bowen" Suit over Defective Windows ---------------------------------------------------------------- CARMELA BOWEN, individually and on behalf of all others similarly situated, Plaintiff v. MILGARD MANUFACTURING, INCORPORATED; DOES 1 through 1,000, inclusive, Defendants, Case No. 37-2018- 00032140-CU-CD-CTL (Cal. Super., San Diego Cty., June 27, 2018) alleges that the Defendants manufacture, market, and sell defective windows. According to the complaint, the Plaintiff purchased windows that are designed, manufactured, constructed and sold by the Defendants which had defects. Due to the defects of the windows, water leaked inside the Plaintiff's home causing damages. Milgard Manufacturing, Inc., doing business as Milgard Windows, manufactures windows and doors. Milgard Manufacturing Incorporated operates as a subsidiary of Masco Corporation. [BN] The Plaintiff is represented by: James R. Kristy, Esq. THE KRISTY LAW FIRM 18377 Beach Blvd., Suite 331 Huntington Beach, CA 92648 Telephone: (714) 841-7400 Facsimile: (800) 229-7601 - and - Ronald A. Hartmann, Esq. HARTMANN & KANANEN 5743 Corsa Avenue, Suite 119 Westlake Village, CA 91362 Telephone: (818) 710-0151 Facsimile: (818) 710-0191 MONETA ENTERPRISES: Faces State Auto's Suit in S.D. Illinois ------------------------------------------------------------ A class action lawsuit has been filed against Moneta Enterprises, LLC. The case is captioned as State Auto Property & Casualty Insurance Company, Plaintiff v. Moneta Enterprises, LLC, and Tina Stodghill, Defendants, Case No. 3:18-cv-01337-MJR-SCW (S.D. Ill., June 29, 2018). The case is assigned to Chief Judge Michael J. Reagan and referred to Magistrate Judge Stephen C. Williams. Moneta Enterprises LLC is a privately held company in Lake Oswego, Oregon. [BN] The Plaintiff is represented by: Robert M. Chemers, Esq. Pretzel & Stouffer, Esq. One South Wacker Drive, Suite 2500 Chicago, IL 60606 Telephone: (312) 346-1973 E-mail: rchemers@pretzel-stouffer.com MONTGOMERY COUNTY, NY: Court Partly Allows "Hill" Suit Amendment ---------------------------------------------------------------- In the case, PERRY HILL, both individually and on behalf of a class of others similarly situated, Plaintiff, v. COUNTY OF MONTGOMERY, MICHAEL AMATO, and MICHAEL FRANKO, Defendants, Case No. 9:14-cv-00933 (BKS/DJS) (N.D. N.Y.), Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York (i) granted in part and denied in part Hill's motion for leave to amend the Complaint under Rule 15; and (ii) granted in part and denied in part proposed intervenor James Rogers' motion for leave to intervene, under Rule 24, as a named Plaintiff and the class representative. On July 25, 2014, Hill filed the Complaint in the action. Hill brings the proposed class action under 42 U.S.C. Section 1983 against Defendants County of Montgomery, Michael Amato, and Michael Franko. In the Complaint, Hill advances a conditions of confinement claim, alleging that the Defendants failed to provide adequate food and nutrition in violation of the Eighth Amendment while he was detained at the Montgomery County Jail ("MCJ") in Fultonville, New York. On Feb. 27, 2017, after conducting significant discovery, Hill moved for class certification. It was unclear from his papers, however, whether Hill, who was held at MCJ in connection with a probation violation, was a pretrial detainee or a convicted prisoner. The Plaintiff's status governs whether his conditions of confinement claim is analyzed under the Eighth Amendment's cruel and unusual punishment clause or the Fourteenth Amendment's due process clause, which require slightly different showings. Further, the Court found that, because Hill had been released from MCJ before filing the action, his claim for injunctive relief was in all likelihood moot and he did not have standing to seek such relief on behalf of the purported class. The Court therefore denied his motion for class certification without prejudice to renewal upon briefing these issues. Presently before the Court are: (1) Hill's supplemental briefing concerning whether he was a pretrial detainee or convicted prisoner at MCJ; (2) Hill's supplemental briefing concerning whether he has standing to bring a claim for declaratory and injunctive relief; (3) Hill's motion for leave to amend the Complaint under Rule 15; and (4) proposed intervenor James Rogers' motion for leave to intervene, under Rule 24, as a named Plaintiff and class representative. The Defendants oppose these motions. The proposed amended complaint adds the allegation from June 2014 until February 2015, Mr. Rogers was detained at the Montgomery County Jail. Mr. Rogers spent approximately four months as a pre-trial detainee and four months as a convicted detainee. It further alleges that Rogers was approximately 195 pounds upon his admission to the jail. Mr. Rogers lost approximately 15 pounds during his eight-month admission to the jail. Mr. Rogers weight loss was also substantial given he is 6'1, and is an extremely thin man. The proposed amended complaint defines a primary class and two subclasses. i. The primary class consists of all detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. ii. The Pre-Trial Detainee Sub-Class is defined as all members of the Primary Class but who were housed as a Pre-Trial Detainee, in that they had not yet been convicted of their charges. iii. The Post-Trial Detainee Sub-Class is defined as all members of the Primary Class, but who were housed as a Post-Trial Detainee, in that they had been convicted of their charges, either by a plea or jury trial. Addressing Hill's briefing on the first two issues before turning to the motion to amend and intervene, Judge Sannes finds that given Hill's assertion that the alleged probation violation occurred after his term of probation expired, and thus was not actionable or based on a conviction or sentence, his claims are governed by the Fourteenth Amendment. Moreover, even if Hill's probation had not expired prior to the alleged violation, because he had not yet had a hearing or been found guilty of the violation, his status is more akin to that of a pretrial detainee. And because Hill filed the Complaint on July 25, 2014 and he was released from MCJ in March 2014, several months prior to filing the Complaint, the Court lacks Article III jurisdiction over Hill's claims for declaratory and injunctive relief, and they are dismissed as moot. Rogers seeks to intervene as a class representative and the named Plaintiff in order to advance a claim for injunctive and declaratory relief. Although Rogers is no longer incarcerated at MCJ, he argues that because he was incarcerated at the time the Complaint was filed, the relation-back doctrine preserves his (otherwise moot) claim for injunctive relief. The Judge finds that because Rogers was no longer incarcerated at MCJ as of Nov. 21, 2017, the date he moved to intervene, any claim for injunctive or declaratory relief is moot and he lacks standing to pursue these claims. Accordingly, she will deny Rogers' motion to intervene to seek declaratory and injunctive relief. She will grant Rogers' motion to intervene to the extent he seeks to assert conditions of confinement claim for damages. She concludes that it is the date Rogers becomes a party to the action that dictates when he filed suit for PLRA purposes. The Judge will deny the motion to amend to the extent it contains a claim for declaratory and injunctive relief. It will be, however, granted for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and Eighth Amendment conditions of confinement claim, reflecting his status as both a pretrial detainee and convicted prisoner at MCJ; and (2) clarifying Hill's status as a pretrial detainee; and (3) clarifying that Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4). The Plaintiffs will revise the proposed amended complaint accordingly and file it within 14 days of the date of the Order. Hill has indicated that he may seek to intervene a putative class member who is presently incarcerated and who also exhausted . . . administrative remedies if given a modest period of time. The Defendants object to any further delay in the action, which has been pending for nearly 4 years. Indeed, the Judge shares the Defendants' concern regarding the extensive time and expense that has gone into the litigation of the action. However, as the intervention of a presently incarcerated putative class member as a named Plaintiff may enable Hill to pursue a claim for declaratory and injunctive relief, she will provide Hill a short period of time, until June 12, 2018, to file a motion to amend and intervene. For these reasons, Judge Sannes dismissed without prejudice the claim for injunctive and declaratory relief. She granted Hill's motion for leave to file an amended complaint and Rogers' motion to intervene as a named Plaintiff for purposes of: (1) adding Rogers as a Plaintiff with a Fourteenth Amendment and Eighth Amendment conditions of confinement damages claim, reflecting his status as both a pretrial detainee and convicted prisoner at MCJ; and (2) clarifying Hill's status as a pretrial detainee; and (3) clarifying that the Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4). The Judge denied Hill's motion for leave to file an amended complaint and Rogers' motion to intervene. Hill may, by June 12, 2018, file: either (1) an amended complaint, as discussed supra; or (2) a second motion to amend and to intervene for purposes of adding a Plaintiff with standing to pursue a claim for injunctive and declaratory relief. If such a motion is filed, the Judge will consider it, along with any response by the Defendants, which must be filed by June 19, 2018, together with the pending motion for class certification. If Hill elects not to file such a motion, the Court will consider the motion for class certification based on the amended complaint and any further briefing. If the Plaintiffs seek certification under Fed. R. Civ. P. 23(b)(3) and 23(c)(4), they must file a letter brief addressing the requirements in Rule 23(b)(3), by June 19, 2018, and the Defendants may file a letter brief in response by June 26, 2018. A full-text copy of the Court's May 29, 2018 Memorandum Decision and Order is available at https://is.gd/HT0r5b from Leagle.com. Perry Hill, both individually and on behalf of a class of others similarly situated, Plaintiff, represented by Elmer R. Keach, III -- bobkeach@keachlawfirm.com -- Law Offices of Elmer Robert Keach, III, P.C., Jason S. Rathod -- jrathod@classlawdc.com -- Migliaccio & Rathod LLP, pro hac vice, Maria K. Dyson -- mariadyson@keachlawfirm.com -- Law Offices of Elmer Robert Keach, III, P.C. & Nicholas A. Migliaccio -- nmigliaccio@classlawdc.com -- Migliaccio & Rathod LLP. County of Montgomery, Michael Amato, Sheriff, Montgomery County & Michael Franko, Jail Administrator, Montgomery County Jail, Defendants, represented by Chelsea E. Manocchi -- cmanocchi@goldbergsegalla.com -- Goldberg Segalla, LLP - Albany Office & Jonathan M. Bernstein -- jbernstein@goldbergsegalla.com -- Goldberg, Segalla Law Firm - Albany Office. N.Y. TILE CORPORATION: Underpays Finishers, "Bucsit" Suit Claims ---------------------------------------------------------------- VACHARY BUCSIT, individually and on behalf of all others similarly situated, Plaintiff v. N.Y. TILE CORPORATION, and DOES 1 through 25, Defendants, Case No. 37-2018-00032724-CU-WT-CTL (Cal. Sup., San Diego Cty., June 29, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Bucsit was employed by the Defendants as a finisher from year 2016 to 2018. N.Y. Tile Corporation is a corporation doing business in the County of San Diego, State of California. [BN] The Plaintiff is represented by: Michael A. Gould, Esq. Aarin A. Zeif, Esq. GOULD & ASSOCIATES A PROFESSIONAL LAW CORPORATION 17822 E. 17th Street, Suite 106 Tustin, CA 92780 Telephone: (714) 669-2850 Facsimile: (714)544-0800 E-mail: Michael@wageandhourlaw.com Aarin@wageandhourlaw.com NATIONAL RIFLE: Bid to Compel Reply to RFPs in "Kalmbach" Denied ---------------------------------------------------------------- In the case, KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, and INFOCISION, INC., a Delaware corporation, Defendants, Case No. C17-399-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, denied the Defendants' Motion to Compel Responses to their Requests for Production ("RFPs") Nos. 20, 21, 23, and 25-29 from Kalmbach. These RFPs seek documents concerning Kalmbach's service as executor, the lawsuit filed against her, her bankruptcy, a company called WellsDelta, and her business Kathryn's Kreations. The Defendants assert that, during her deposition, Ms. Kalmbach revealed that she was sued for fraud related to her administration of an estate, and that this suit claimed she had looted over $500,000 from the estate and used a company called WellsDelta to wrongfully take real property from the estate. They assert that Ms. Kalmbach's bankruptcy filings reveal she owned a business called Kathryn's Kreations through at least March 2013, but that she had previously testified that she had not owned a business since 2000. They argue these issues bear on Ms. Kalmbach's fitness to represent a class. Ms. Kalmbach responded to each of these RFPs arguing that the Request is vague, overbroad and beyond the scope of discoverable evidence set forth in FRCP 26(b)(1), as the Request seeks irrelevant information in no way related to the claims and allegations at issue in this case. This request also seeks documents that are disproportionate to the needs of the case. For RFP No. 23, seeking documents relating to her legally changing her first name from Claudia to Katharyn, Ms. Kalmbach also notes furthermore, this request seeks discovery of documents that are public records and are available to the Defendants. For RFP No. 25 through 29, Ms. Kalmbach also notes that the Defendants are seeking information already in the Defendant's custody and control and that are public records. For one RFP at issue, Ms. Kalmbach objects based on the attorney client privilege. The Defendants argue that Ms. Kalmbach's objections are boilerplate and run afoul of Rule 26(b)(1) and Rule 34(b)(2). In Response to this Motion, Ms. Kalmbach argues that these discovery requests concerning Ms. Kalmbach's administration of an estate of a deceased relative from 2003-ORDER 2009, appear to be made solely to harass her and to force her to re-hash irrelevant events that happened over a decade ago. As an initial matter, Judge Martinez notes that the Defendants already moved to deny class certification on Feb. 2, 2018, based on Ms. Kalmbach's fitness. The motion is still pending. It is unclear to the Judge how the Defendants can argue that the requested discovery, related to her fitness, is proportional to the needs of this case given that the Defendants felt they already had enough information to move for relief based on her fitness. This question, raised in the Response brief, is left unanswered by the Defendants. Turning to relevancy, the Judge finds that Ms. Kalmbach has met her burden to show why the discovery requests should be denied. Although the fitness of a class representative is a relevant topic of discovery, the cases cited by Ms. Kalmbach indicate that there is a limit. The key questions for fitness are conflicts of interest with other class members and vigorousness of potential representation. Ms. Kalmbach has adequately demonstrated that the discovery requests at issue cannot lead to relevant information as to these questions. The fact that she settled a lawsuit with accusation of fraud 10 years ago has little bearing on her fitness in the case with these issues. The Judge further finds that Ms. Kalmbach's objections, although thin on details initially, were supplemented by further information by her counsel. In any event, he believes the Defendants already knew the bases for these objections given the deposition and prior briefing before the Court. Considering all of the foregoing, Judge Martinez finds that the requested discovery seeks irrelevant information not proportional to the needs of the case under Rule 26(b)(1). Accordingly, and after having reviewed the relevant briefing and the remainder of the record, he denied the Defendants' Motion to Compel. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/Yrg9ht from Leagle.com. Katharyn Kalmbach, individually and on behalf of all others similarly situated, Plaintiff, represented by Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS, Patrick Peluso - - ppeluso@woodrowpeluso.com -- WOODROW & PELUSO LLC, pro hac vice, Stefan Coleman, LAW OFFICE OF STEFAN COLEMAN, pro hac vice, Steven L. Woodrow -- swoodrow@woodrowpeluso.com -- WOODROW & PELUSO LLC, pro hac vice & Chase Christian Alvord -- calvord@tousley.com -- TOUSLEY BRAIN STEPHENS. National Rifle Association of America, a New York corporation & InfoCision, Inc, a Delaware corporation, Defendants, represented by Brett A. Wall -- bwall@bakerlaw.com -- BAKER HOSTETLER LLP, pro hac vice, James Raymond Morrison -- jmorrison@bakerlaw.com -- BAKER HOSTETLER LLP, Michael D. Meuti -- mmeuti@bakerlaw.com -- BAKER HOSTETLER LLP, pro hac vice, Terry M. Brennan -- tbrennan@bakerlaw.com -- BAKER HOSTETLER, pro hac vice & Curt Roy Hineline -- chineline@bakerlaw.com -- BAKER HOSTETLER LLP. NATIONSTAR MORTGAGE: Rakestraw Alleges Violation of RESPA --------------------------------------------------------- PAULETTE E. RAKESTRAW, individually and on behalf of all others similarly situated, Plaintiff v. NATIONSTAR MORTGAGE, LLC, Defendants, Case No. 1:18-cv-03144-ELR-LTW (N.D. Ga., June 29, 2018) alleges violation of the Real Estate Settlement Practices Act. Nationstar Mortgage LLC, doing business as Mr. Cooper, provides mortgage services. It offers various solutions to meet the reverse mortgage needs of its customers. The company provides its services through its representatives. Nationstar Mortgage LLC was formerly known as Centex Credit Corporation and changed its name to Nationstar Mortgage LLC in 2006. The company was founded in 1994 and is based in Coppell, Texas. Nationstar Mortgage LLC operates as a subsidiary of Nationstar Mortgage Holdings Inc. [BN] The Plaintiff is represented by: Wayne Charles, Esq. WAYNE CHARLES, PC 395 Highgrove Dr. Fayetteville, GA 30215 Telephone: (770) 241-8936 Facsimile: (770) 460-0412 NATIONWIDE CREDIT: Gross Alleges Wrongful Debt Collections ---------------------------------------------------------- CYNTHIA GROSS, individually and on behalf of all others similarly situated, Plaintiff v. NATIONWIDE CREDIT & COLLECTION INC., Defendant, Case No. 18-cv-970 (E.D. Wis., June 26, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Nationwide Credit & Collection Inc. is a foreign business corporation with its principal place of business located at 815 Commerce Drive Ste 270, Oak Brook, Illinois 60523. The Company is engaged in the business of a collection agency, using the mails and telephone to collect consumer debts. [BN] The Plaintiff is represented by: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com NELSEN & FEITELSON: Simmons Sues over Debt Collection Practices --------------------------------------------------------------- KELLI SIMMONS, individually and on behalf of all others similarly situated, Plaintiff v. NELSEN & FEITELSON LAW GROUP PLC; BROOK RUN VILLAGE OWNER'S ASSOCIATION INC. D/B/A BROOK RUN HOME OWNERS' ASSOCIATION; and JEREMY FEITELSON, Defendants, Case No. 4:18-cv- 00206 (S.D. Iowa, June 26, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Chief Judge John A. Jarvey and referred to Magistrate Judge Celeste F. Bremer. Nelsen & Feitelson Law Group PLC is a general practice law firm established in 2004 and committed to providing professional, dependable, and effective service. [BN] The Plaintiff is represented by: Samuel Z Marks, Esq. MARKS LAW FIRM 4225 University Avenue Des Moines, IA 50311 Telephone: (515) 276-7211 Facsimile: (515) 276-6280 E-mail: office@markslawdm.com NEW YORK: COBA's Suit Dismissed Without Prejudice ------------------------------------------------- Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York granted the Defendants' motion to dismiss the case, CORRECTION OFFICERS' BENEVOLENT ASSOCIATION, INC., TIFFANI DUBLIN, individually and on behalf of all others similarly situated, ANTHONY ROMANO, individually and on behalf of all others similarly situated, MATTHEW HINES, individually and on behalf of all others similarly situated, FRANCIS CASTRO, individually and on behalf of all others similarly situated, JOHN AND JANE DOES 1-2,000, Plaintiffs, v. THE CITY OF NEW YORK, MAYOR BILL DE BLASIO, NEW YORK CITY DEPARTMENT OF CORRECTION, and COMMISSIONER CYNTHIA BRANN, Defendants, Case No. 17 CV 2899-LTS (S.D. N.Y.). Plaintiff Correction Officers' Benevolent Association, Inc. ("COBA"), the exclusive bargaining representative for all employees of the New York City Department of Correction ("DOC") holding the title of "Correction Officer" ("CO"), and COs Tiffani Dublin, Anthony Romano, Matthew Hines, and Francis Castro bring the action, in the case of the named COs, both individually and on behalf of others similarly situated, against the Defendants. The Plaintiffs claim that the Defendants have violated 42 U.S.C. section 1983 by subjecting them to a state-created danger in derogation of their substantive due process rights guaranteed by the Fourteenth Amendment. In March 2015, the City announced a "14 Point Plan" and a series of initiatives, policies, practices, and customs to reduce violence against inmates within city jails. The Plaintiffs allege that these reforms prioritized the safety of inmates at the expense of the safety of the COs and other staff members. The Plaintiffs allege that violence in city jails increased 18%, as reported in May 2017, and injuries to DOC staff increased to approximately 1,337, in the period between November 2015 and December 2016. They proffer graphic allegations detailing inmate violence against and abuse of DOC staff. The Plaintiffs also allege that these specific incidents and the alleged increase in the rate of violence against DOC staff are attributable to the Defendants' aforementioned policies and practices. According to them, DOC's alleged underreporting and mischaracterizations of violent encounters between inmates and staff present a misleading impression of the safety at DOC facilities and give a false sense of security to the thousands of Correction Officers in the Jails. COBA has notified DOC that its punitive segregation policies are dangerous and caused harm to Correction Officers on several occasions and that its training facilities are inadequate. The Defendants move pursuant to Federal Rule of Procedure 12(b)(6) to dismiss the Plaintiffs' Complaint for failure to state a claim upon which relief can be granted. Judge Swain finds that the Plaintiffs fail to state claims upon which relief may be granted with respect to the first eight challenged policies or practices. The Defendants' remaining claim, that the alleged practice of deliberately underreporting and misreporting violence in their jails is shocking to the contemporary conscience, fails to state a claim because the Plaintiffs allege no facts showing how such false reporting increases the COs' exposure to physical harm. Although the Plaintiffs argue that these misrepresentations are intended to make the DOC facilities appear safer than they actually are, they provide no factual allegations tying the allegedly false reports of violence against COs or among inmates to any of the alleged injuries to a CO. The claim must therefore be dismissed, and the Judge says he needs not consider whether the Defendants' alleged behavior in this regard could be actionable as conscience-shocking under the Due Process Clause. For these reasons, Judge Swain granted the Defendants' motion to dismiss the Complaint in its entirety. The dismissal is without prejudice to the filing of a motion pursuant to Federal Rule of Civil Procedure 15(a) for leave to amend the Complaint. A full-text copy of the Court's May 30, 2018 Memorandum Opinion and Order is available at https://is.gd/a0l1UW from Leagle.com. Tiffani Dublin, individually and on behalf of all others similarly situated, Correction Officers' Benevolent Association, Inc., Anthony Romano, individually and on behalf of all others similarly situated, Matthew Hines, individually and on behalf of all others similarly situated, Francis Castro, individually and on behalf of all others similarly situated & John and Jane Does 1-2000, Plaintiffs, represented by Cynthia Devasia -- cdevasia@koehler-isaacs.com -- Koehler & Isaacs, LLP. City of New York, Mayor Bill De Blasio, New York City Department of Correction & Commissioner Joseph Ponte, Defendants, represented by Alan Maer Schlesinger, Corporation Counsel Office City of New York. NISSAN NORTH AMERICA: Faces "Norman" Suit over Defective Parts -------------------------------------------------------------- CHEYNE NORMAN; PATRICIA WECKWERTH; and SOPHIA WESCOTT, individually and on behalf of all others similarly situated, Plaintiffs v. NISSAN NORTH AMERICA, INC.; and NISSAN MOTOR COMPANY, LTD., Defendants, Case No. 3:18-cv-00588 (M.D. Tenn., June 26, 2018) alleges that the Defendants marketed and sold the 2013-2017 Nissan Versa, 2013-2017 Nissan Versa Note or 2013-2017 Nissan Juke without disclosing that the vehicles' Xtronic Continuously Variable Transmission were defective. The complaint alleges that the 2013-2017 Nissan Versa, 2013-2017 Nissan Versa Note or 2013-2017 Nissan Juke equipped with an Xtronic Continuously Variable Transmission contains one or more design and/or manufacturing defects. The Continuously Variable Transmission is defective in the following ways: it causes sudden, unexpected shaking and violent jerking when drivers attempt to accelerate their vehicles; it causes the vehicle to lag or delay when the driver tries to accelerate, causing an unsafe, unpredictable acceleration; it exhibits a hard deceleration or clunk when drivers either slow down or accelerate at low speeds; it causes complete transmission failure in the middle of roadways and it suffers catastrophic failure, necessitating replacement. Nissan North America, Inc. designs, develops, manufactures, and markets Nissan and Infiniti vehicles in the United States, Canada, and Mexico. Nissan North America, Inc. was formerly known as Nissan Motor Corporation USA, Inc. and changed its name to Nissan North America, Inc. in January 1999. The company was founded in 1960 and is headquartered in Franklin, Tennessee with subsidiaries in Mississauga, Canada; San Diego, California; and Mexico. It has production plants in Smyrna and Decherd, Tennessee; and Canton, Mississippi. Nissan North America, Inc. operates as a subsidiary of Nissan Motor Co. Ltd. [BN] The Plaintiffs are represented by: Caroline Ramsey Taylor, Esq. John C. Whitfield, Esq. WHITFIELD BRYSON & MASON, LLP 518 Monroe Street Nashville, TN 37208 Telephone: (615) 921-6500 Facsimile: (615) 921-6501 E-mail: caroline@wbmllp.com john@wbmllp.com - and - Russell D. Paul, Esq. Lawrence Deutsch, Esq. Jeffrey L. Osterwise, Esq. BERGER & MONTAGUE, P.C 1622 Locust Street Philadelphia, PA 19103-6305 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: rpaul@bm.net ldeutsch@bm.net josterwise@bm.net - and - Jordan L. Lurie, Esq. Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Robert K. Friedl, Esq. Trisha K. Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Jordan.Lurie@capstonelawyers.com Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Trisha.Monesi@capstonelawyers.com Robert.Friedl@capstonelawyers.com - and - Gary E. Mason, Esq. Jennifer Goldstein, Esq. WHITFIELD BRYSON & MASON, LLP 5101 Wisconsin Ave. NW Suite 305 Washington, D.C. 20016 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 E-mail: gmason@wbmllp.com Jgoldstein@wbmllp.com NORTH JERSEY PROPERTY: Bautista Sues Over Denied Breaks, OT Pay --------------------------------------------------------------- Cesar Bautista, individually and on behalf of all others similarly situated, Plaintiff, v. North Jersey Property Maintenance, LLC and Brian Spellman, Defendants, Case No. 18-cv- 09127, (D. N.J., May 11, 2018), seeks equitable and legal relief for violations of the Fair Labor Standards Act of 1938, the New Jersey Wage and Hour Law and the New Jersey Wage Payment Act. Defendants employed Bautista as a driver and maintenance worker from in or around 1991 until on or around April 21, 2018. He regularly worked Mondays through Saturdays, from approximately 9:30 p.m. until 9:30 a.m., for a total of approximately seventy- two hours per week and was not afforded meal or rest breaks during his employment with Defendants, says the complaint. Plaintiff is represented by: Adam Sackowitz, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, NY 10016 Tel: (212) 460-0047 Email: ajsackowitz@katzmelinger.com NORTON OUTDOOR: Removes Shipps' Suit to S.D. Ohio ------------------------------------------------- The class action lawsuit titled Jerry L. Shipp, and Cynthia A. Shipp, individually and on behalf of all others similarly situated, Plaintiff v. Norton Outdoor Advertising, Inc., LAL Properties, LLC, Flora Byrnes, Leesman Lighting, LLC, Village of St. Bernard, Defendants, Case No. 2:18-cv-635, was removed from the U.S. District Court for the Southern District of Ohio, Ohio Division, to the U.S. District Court for the Southern District of Ohio, Western Division, on July 2, 2018. The District Court Clerk assigned Case No. 1:18-cv-00444 to the proceeding. The case is assigned to Judge Susan J. Dlott and referred to Magistrate Judge Stephanie K. Bowman. Norton Outdoor Advertising Inc is a privately held company in Cincinnati, Ohio. [BN] The Plaintiffs are represented by: John Henry Phillips, Esq. Anthony Brendan Holman, Esq. Kyle Edward Hackett, Esq. PHILLIPS LAW FIRM 9521 Montgomery Road Cincinnati, OH 45242 Telephone: (513) 985-2500 Facsimile: (513) 985-2503 E-mail: JHP@phillipslawfirm.com abh@phillipslawfirm.com keh@phillipslawfirm.com The Defendants are represented by: Michael Alan Galasso, Esq. Robbins Kelly Patterson & Tucker 7 W 7th Street, Suite 1400 Cincinnati, OH 45202-2424 Telephone: (513) 721-3330 Facsimile: (513) 721-5001 E-mail: mgalasso@rkpt.com - and - Michael Leis Gay, Esq. CORS & BASSETT LLC 201 E. Fifth Street, Suite 900 Cincinnati, OH 45202 Telephone: (513) 852-8200 E-mail: mlg@corsbassett.com - and - Michael S Loughry, Esq. MAZANEC, RASKIN& RYDER CO., LPA 175 South Third Street, Suite 1000 Columbus, OH 43215-7619 Telephone: (614) 228-5931 Facsimile: (614) 228-5934 E-mail: mloughry@mrrlaw.com OHANA MILITARY: Court Narrows Claims in "Lake" ---------------------------------------------- The United States District Court for the District of Hawaii granted in part and denied in part Defendants' Motion to Dismiss the case captioned KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON Plaintiffs, v. OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC.; and DOE DEFENDANTS 1-10, Defendants, Civil No. 16-00555 LEK-KJM (D. Haw.). The Plaintiffs' claim that the Defendant breached the landlord tenant code by failing to comply with the applicable building codes and housing laws is dismissed with prejudice. The Complaint alleged the following claims: breach of contract against Ohana ("Count I"); breach of the implied warranty of habitability against Ohana ("Count II"); a claim against the Defendants for violation of the Landlord Tenant Code, Haw. Rev. Stat. Chapter 521 ("Chapter 521" and "Count III"); an unfair and deceptive trade practices ("UDAP") claim against Defendants pursuant to Haw. Rev. Stat. Section 480-2 ("Count IV"); a negligent failure to warn claim against Defendants ("Count V"); a claim against Defendants for negligent infliction of emotional distress ("NIED") and intentional infliction of emotional distress ("IIED" and "Count VI"); a fraud claim against Defendants ("Count VII"); a negligent misrepresentation claim against Defendants ("Count VIII"); an unfair competition claim ("UMOC") against Defendants pursuant to Section 480-2(a) ("Count IX"); a trespass claim against Defendants ("Count X"); and a nuisance claim against Defendants ("Count XI"). The Defendants argue the additional factual allegations in the First Amended Complaint are insufficient to cure: the standing defect identified in the 8/1/17 Order; and the defects in the Plaintiffs' claims that the Defendants identified in the Original Motion to Dismiss but were not addressed in the 8/1/17 Order. Standing The First Amended Complaint alleges all the Plaintiffs experienced construction dust at MCBH settling on their rental homes, their persons, and/or their personal property, including during the Plaintiffs' routine travels and visits to parts of MCBH beyond the immediate areas of their rental homes. This dust allegedly caused the Plaintiffs to spend additional time cleaning their homes and personal property; caused them to spend additional resources on cleaning and air filtration supplies; and prevented them from using and enjoying their homes and the MCBH community as they would have without the dust. To the extent the Motion argues the Plaintiffs failed to plead sufficient standing allegations, the Motion is denied. Amended Count I -- Breach of Contract The Defendants argue Amended Count I fails because the First Amended Complaint does not identify the specific contractual provision Ohana allegedly violated. The elements of a breach of contract claim are (1) the contract at issue; (2) the parties to the contract; (3) whether plaintiff performed under the contract; (4) the particular provision of the contract allegedly violated by defendants; and (5) when and how defendants allegedly breached the contract. The First Amended Complaint alleges sufficient facts to support each element, and therefore Amended Count I states a plausible breach of contract claim. Defendants' Motion is denied as to Amended Count I. Amended Count II -- Breach of the Implied Warranty of Habitability The First Amended Complaint alleges sufficient facts to support each of the required elements. This Court concludes that Amended Count II states a plausible claim for breach of the implied warranty of habitability and therefore denies Defendants' Motion as to Amended Count II. Amended Count III -- Violation of Chapter 521 Amended Count III alleges Defendants violated Haw. Rev. Stat. Sections 521-10 and 521-42(a)(1). In the Original Motion to Dismiss, the Defendants argued the Plaintiffs did not allege a violation of applicable building or housing laws materially affecting health and safety. Although this issue was not addressed in the 8/1/17 Order because the standing issue was dispositive, the Plaintiffs had notice of this defect in their Section 521-42(a)(1) claim, and they failed to cure it when they filed their First Amended Complaint. Further, the Plaintiff's memorandum in opposition to the instant Motion does not identify how the Plaintiffs would amend this claim, if given the opportunity to do so. These facts give a strong indication that the plaintiffs have no additional facts to plead. This Court therefore concludes the Plaintiff would not be able to cure the defect in their Section 521-42(a)(1) claim by amendment. The Defendants' Motion is granted insofar as the portion of Amended Count III based on Section 521-42(a)(1) is dismissed with prejudice. Amended Count V -- Negligent Failure to Warn The Defendants argue Amended Count V fails because the Plaintiffs do not sufficiently allege how they were impacted by contaminated construction dust. Based on the same allegations discussed regarding the Plaintiffs' standing, this Court concludes the Plaintiffs have pled sufficient factual allegations to support a plausible claim for negligent failure to warn. The Defendants' Motion is denied as to Amended Count V. Amended Count VI -- IIED and NIED The Defendants argue Amended Count VI fails because the Plaintiffs have not pled sufficiently outrageous conduct to support an IIED claim, and they have not pled the physical manifestation of harm required to support an NIED claim based on injury to property. IIED Barber also involved an IIED claim. The district court identified the elements of an IIED claim as, inter alia: (1) that the act allegedly causing the harm was intentional or reckless, (2) that the act was outrageous, and (3) that the act caused (4) extreme emotional distress to another. This Court agrees with the district court in Barber. Based on the factual allegations of the First Amended Complaint, reasonable people may differ on the issue of whether Defendants' conduct was sufficiently outrageous to support an IIED claim. Because the issue of outrageousness cannot be determined in a motion to dismiss, Defendant's Motion is denied as to the portion of Amended Count VI alleging an IIED claim. NIED The district court in Barber stated the elements of an NIED claim are, inter alia: (1) that the defendant engaged in negligent conduct; (2) that the plaintiff suffered serious emotional distress; and (3) that such negligent conduct of the defendant was a legal cause of the serious emotional distress. This Court agrees with the district court in Barber. The factual allegations of the First Amended Complaint are sufficient to plead a plausible NIED claim based on exposure to significant health risks. Defendants' Motion is denied as to the portion of Amended Count VI alleging an NIED claim. Amended Counts VII and VIII -- Fraud and Negligent Misrepresentation The Defendants argue Amended Counts VII and VIII fail because the Plaintiffs have not sufficiently alleged detrimental reliance. Reliance is a required element of a claim for intentional/fraudulent misrepresentation and a claim for negligent misrepresentation. Based on the same allegations discussed previously regarding the Plaintiffs' standing, this Court concludes the Plaintiffs have pled sufficient factual allegations regarding their reliance to support plausible claims for intentional/fraudulent misrepresentation and negligent misrepresentation. The Defendants' Motion is denied as to Amended Counts VII and VIII. Amended Count XI -- Nuisance The Defendants argue Amended Count XI fails because the Plaintiffs have not pled sufficient factual allegations to support the claim; the Beans' and the Moseleys' nuisance claims are time-barred; and the Plaintiffs do not allege the Pahonas and Plaintiffs Kenneth Lake and Crystal Lake (Lakes) have been impacted by construction dust. The Beans and the Moseleys The Plaintiffs argue the Beans' and the Moseleys' nuisance claims are timely because the statute of limitations was tolled while Barber was pending because it was filed as a class action, and the Plaintiffs were all members of the putative class. Because there was no nuisance claim at issue in Barber, the Beans' and the Moseleys' nuisance claims were not tolled while Barber was pending. Further, the Plaintiffs have not presented any other ground that would support tolling of the statute of limitations on the Beans' and the Moseleys' nuisance claims. The Beans' and the Moseleys' nuisance claims are therefore time- barred and must be dismissed. The Defendants' Motion is granted insofar as the Beans' and the Moseleys' nuisance claims are dismissed with prejudice. Accordingly, the Defendants' Motion to Dismiss First Amended Complaint is granted in part and denied in part. The Motion is granted insofar as: the Plaintiffs' UDAP and UMOC claims are stricken; the Plaintiffs' Haw. Rev. Stat. Chapter 521 claim alleging a violation of Haw. Rev. Stat. Section 521-42(a)(1) is dismissed with prejudice; the Beans' nuisance claim is dismissed with prejudice; and the Moseleys' nuisance claim is dismissed with prejudice. The Motion is denied in all other respects. A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/y8zqb947 from Leagle.com. Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Estel Pahona, Timothy Moseley, Ashley Moseley, Ryan Wilson & Heather Wilson, Plaintiffs, represented by Patrick Kyle Smith, Smith Law, & Terrance M. Revere -- main@revereandassociates.com -- Revere & Associates, LLC. Ohana Military Communities, LLC & Forest City Residential Management, Inc., Defendants, represented by Christine A. Terada -- cterada@goodsill.com -- Goodsill Anderson Quinn & Stifel LLLP, Joachim P. Cox -- jcox@cfhawaii.com -- Cox Fricke A Limited Liability Law Partnership LLP, Kamala S. Haake -- khaake@cfhawaii.com -- Cox Fricke LLP, Lisa W. Munger -- lmunger@goodsill.com -- Goodsill Anderson Quinn & Stifel LLLP & Randall C. Whattoff -- rwhattoff@cfhawaii.com -- Cox Fricke LLP. PETORE ASSOCIATES: Faces CCC Custom Carpentry's Suit in New York ---------------------------------------------------------------- A class action lawsuit has been filed against PETORE ASSOCIATES, INC. D/B/A PETORE CONSTRUCTION. The case is captioned as CCC CUSTOM CARPENTRY CORP., Plaintiff v. PETORE ASSOCIATES, INC. D/B/A PETORE CONSTRUCTION ET AL, Defendants, Case No. 513181/2018 (N.Y. Sup., Kings Cty., June 26, 2018). Petore Associates, Inc. is a corporation organized and existing under the laws of the State of New Jersey. [BN] PNC BANK: Underpays Loan Mortgage Officers, Kazi Suit Says ---------------------------------------------------------- TANSEER KAZI, individually and on behalf of all others similarly situated, Plaintiff v. PNC BANK, N.A., and DOES 1-100 inclusive, Defendants, Case No. RG18910955 (Cal. Super., Alameda Cty., June 28, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Kazi was employed by the Defendants as a loan mortgage officer. PNC Bank, National Association operates as a bank. The Bank offers saving and current account, investment and financial services, online banking, mortgage and non-mortgage loan facilities, as well as issues credit card and business loans. PNC Bank serves clients in the United States. [BN] The Plaintiff is represented by: James M. Sitkin, Esq. LAW OFFICES OF JAMES M. SITKIN 255 California Street, 10th floor San Francisco, CA 94111 Telephone: (415) 318-1048 Facsimile: (415) 362-3268 E-mail: jsitkin@sitkinlegal.com - and - Robert D. Soloff, Esq. ROBERT D. SOLOFF, P.A. 7805 SW 6th Court Plantation, FL 33324 Telephone: (954) 472-0002 Facsimile: (954) 472-0052 E-mail: robert@solofflaw.com POPEYES LOUISIANA: "Edge" Suit Seeks Damages under FLSA ------------------------------------------------------- Amber Edge, individually and on behalf of others similarly situated v. Popeyes Louisiana Kitchen, Inc., Case No. 4:18-cv- 00425 (E.D. Ark., June 28, 2018), seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs pursuant to the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. The Plaintiff was employed at Defendant's South University Avenue location in Little Rock and its West Main Street location in Jacksonville, between 2015 and March of 2018. The Plaintiff is a resident and citizen of Faulkner County. The Defendant Popeyes Louisiana Kitchen is a fast food eatery company with restaurants throughout Arkansas. [BN] The Plaintiff is represented by: Chris Burks, Esq. Joss Sanford, Esq. SANFORD LAW FIRM, PLC One Financial Center 650 South Shackleford, Ste 411 Little Rock, AR 72211 Tel: (501) 221-0088 Fax: (888) 787-2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com RANGER ENERGY: Doesn't Pay OT to Operators, Bryant Alleges ---------------------------------------------------------- ADRIAN BRYANT, individually and on behalf of all others similarly situated, Plaintiff v. RANGER ENERGY SERVICES, INC.; and RANGER ENERGY SERVICES, LLC, Defendants, Case No. 7:18-cv-00112 (W.D. Tex., June 26, 2018) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of the Defendants' failure to pay the Plaintiff lawful overtime compensation for hours worked in excess of 40 hours per week. Mr. Bryant was employed by the Defendants as lead operator from December 2017 to June 2018. Ranger Energy Services, Inc. provides well site services and associated equipment. The Company offers well rigs, water transfer, plug and abandonment, wireline, fluid management and handling, snubbing, transportation, and equipment renting services. Ranger Energy Services operates in the States of Texas, Colorado, Wyoming, and North Dakota. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com RAY KLEIN: "Antoine" Suit Alleges FDCPA Violations -------------------------------------------------- Angela Antoine, on behalf of themselves and all others similarly situated v. Ray Klein, Inc., dba Professional Credit Service, Case No. 3:18-cv-01158 (D. Ore., June 29, 2018), is brought against the Defendant for violations of the Fair Debt Collection Practices Act. The Plaintiff Angela Antoine brings this action to challenge the actions of Ray Klein, Inc. with regard to attempts by the Defendant to unlawfully and abusively collect a debt allegedly owed by Plaintiff. The Plaintiff resides in the State of Oregon, City of Portland. The Defendant is a Washington corporation that regularly does business within the County of Multnomah. The Defendant is a person who uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which is the collection of debts. [BN] The Plaintiff is represented by: David J. McGlothlin, Esq. HYDE & SWIGART 2633 E. Indian School Road, Suite 460 Phoenix, AZ 85016 Tel: (602) 265-3332 Fax: (602) 230-4482 E-mail: david@westcoastlitigation.com RECCO HOME CARE: Underpays Home Health Aide, "Liranzo" Suit Says ---------------------------------------------------------------- AMBAR LIRANZO, individually and on behalf of all others similarly situated, Plaintiff v. RECCO HOME CARE SERVICE, INC., and FRANK J. RECCO, Defendants, Case No. 2:18-cv-03688 (E.D.N.Y., June 26, 2018) seeks to recover overtime compensation for all hours worked in excess of 40 hours per week, interest on all compensation the Defendant withheld, injunctive and declaratory relief, damages, attorney's fees and costs pursuant to the Family and Medical Leave Act and Fair Labor Standards Act. The Plaintiff Liranzo was employed by the Defendants as a home health aide from January 2016 to May 24, 2018. Recco Home Care Service, Inc. provides healthcare services. The Company offers inpatient nursing, companion services, injury recovery, and rehabilitative services to patients who require continuous health care. Recco Home Care Service serves patients throughout the State of New York. [BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 825 Veterans Highway, Suite B Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: promero@romerolawny.com RMB INC: Court Grants Bid to Dismiss "Kowaleski" FDCPA Suit ----------------------------------------------------------- Judge Anne E. Thompson of the U.S. District Court for the District of New Jersey granted Defendant RMB's motion to dismiss the case, ALISON KOWALESKI, on behalf of herself and all others similarly situated, Plaintiff(s), v. RMB, INC. and JOHN DOES 1- 25, Defendant(s), Civ. No. 18-4149 (D. N.J.). This is a consumer debt collection action. The Plaintiff is a natural person and resident of Somerset County, New Jersey, who received a letter or notice from the Defendant concerning a debt owed to Raritan Bay Medical Center, and who brings this lawsuit on behalf of a putative class of all New Jersey consumers who were sent similar debt collection letters or notices. The Defendant is a corporation which maintains a location at 409 Bearden Park Circle, Knoxville, TN. On June 21, 2017, the Plaintiff allegedly incurred a financial obligation to Raritan Bay Medical Center. On Nov. 9, 2017, Raritan Bay Medical Center referred this obligation to the Defendant for the purpose of collection. At that time, the obligation was past due and in default. In connection with this obligation, the Defendant sent and the Plaintiff received a letter dated Nov. 9, 2017 seeking a balance of around $150. This letter was the first communication the Plaintiff received regarding this alleged debt. At the top right corner of the Nov. 9, 2017 letter, incorporated by reference in the Plaintiff's Complaint, the Defendant provided the following information regarding the Raritan Bay Medical Center obligation: Responsible Party: Alison Kowaleski, Patient Name: Alison B. Kowaleski, Total of Accounts Listed Below: $177.37, Date: 11/09/17. The Nov. 9, 2017 letter, entitled "Collection Notice, also included the following bolded text: "This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose." The document also listed the "Creditor" as "Raritan Bay Medical Center," giving a service date, reference numbers, and the amount due of $177.37. The Plaintiff filed her proposed class action Complaint on March 23, 2018, bringing one Count alleging violation of the Fair Debt Collection Practices Act ("FDCPA"). Broadly, she asserts that the Nov. 9, 2017 letter overshadows and/or contradicts the protections provided by 15 U.S.C. Section 1692g(a)(3), and further, would cause the least sophisticated consumer to be confused about what rights he or she had and how to exercise those rights. In particular, the Plaintiff argues that the Defendant's use of the phrase "Responsible Party" would lead the least sophisticated consumer to believe that the debt described was already validated. After receiving an automatic extension of time to respond, the Defendants filed the instant Motion to Dismiss on April 27, 2018. On May 7, 2018, the Plaintiff submitted a letter pursuant to Local Civil Rule 7.1(d)(5), adjourning the Motion by one cycle to June 4, 2018. The Plaintiff timely filed opposition on May 21, 2018. The Defendant replied on May 25, 2018. Judge Thompson finds that the "Responsible Party" designation makes no demand or threat; neither creates a timetable that differs from the statutory prescription nor proposes an inappropriate method of disputing the debt, and does not obscure the relevant warnings with erroneous narrative text that muddies the validation notice. As such, the Judge does not hesitate to find that these words, as displayed on RMB's notice, are not misleading or contradictory. As required under the FDCPA, the validation notice created a clear and obvious disclaimer, and the "Responsible Party" header cannot fairly be said to create uncertainty about even the least sophisticated debtor's rights. The Judge also finds that the Plaintiff appears to attempt to amend her Complaint in her opposition brief to the Defendant's Motion to Dismiss, noting for the first time a purported violation of 15 U.S.C. She says it is axiomatic that a plaintiff cannot amend its pleading in an opposition brief on a motion to dismiss. Section 1692e is not cited anywhere in the Plaintiff's Complaint, and the Plaintiff's inclusion of the phrase "Section 1692 et seq." cannot be fairly read to put the Defendant on notice of an alleged violation of Section 1692e(10). Further, she says, leave to amend in order to plead this statutory section would be futile, as when allegations under 15 U.S.C. Section 1692e(10) are based on the same language or theories as allegations under 15 U.S.C. Section 1692g, the analysis of the Section 1692g claim is usually dispositive. For the reasons she stated, Judge Thompson granted the Defendant's Motion. An appropriate order will follow. A full-text copy of the Court's May 30, 2018 Opinion is available at https://is.gd/YsuhPi from Leagle.com. ALISON KOWALESKI, on behalf of herself and all others similarly situated, Plaintiff, represented by JOSEPH K. JONES, Jones, Wolf & Kapasi, LLC & BENJAMIN JARRET WOLF, Jones, Wolf & Kapasi, LLC. RMB, INC., Defendant, represented by ANDREW JOSHUA BLADY -- ablady@sessions.legal -- SESSIONS, FISHMAN, NATHAN & ISRAEL. ROADRUNNER INTERMODAL: $9.25MM "Singh" Settlement Has Prelim OK --------------------------------------------------------------- In the case, JABIR SINGH, et al., Plaintiffs, v. ROADRUNNER INTERMODAL SERVICES, LLC; CENTRAL CAL TRANSPORTATION; and MORGAN SOUTHERN, INC., Defendants, Case No. 1:15-cv-01497-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted the Plaintiff's motion for preliminary approval of the class action settlement. On Feb. 9, 2015, Plaintiffs Singh, Bany Lopez, Julio Vidrio, James Sliger, Derrick Lewis, Jerry Leininger, Kristopher Spring, Jerry Wood, Cappelli Burless, Robert Haskins, and Douglas Luis ("Singh plaintiffs") filed a class action entitled Singh et al. v. Roadrunner Intermodal Services, LLC et al., Case No. CGC-15- 544563 on behalf of all similarly situated current and former truck drivers employed by the Defendants in the San Francisco County Superior Court. On April 15, 2015, the Defendants removed the action to the U.S. District Court of the Northern District of California. On Oct. 2, 2015, the action was transferred to the Sacramento Division of the U.S. District Court of the Eastern District of California. On Feb. 18, 2016, the action was reassigned to Judge Drozd, sitting in the Fresno Division of the Court. On Sept. 18, 2015, Plaintiffs Paul Bonner, Christopher Cross, Leo Lewis, Richard Love, Wilfred McGirt, and Nicholas Rich ("Rich Plaintiffs") filed a class action entitled Rich v. Roadrunner Intermodal Services, LLC et al, Case No. 2:15-cv-07330-DMG-JPR.on behalf of all similarly situated current and former truck drivers employed by the Defendants in the U.S. District Court for the Central District of California. On Jan. 8, 2016, Plaintiff Latrina Phillips filed the class action entitled Latrina Phillips v. Roadrunner Intermodal Services, LLC et al, Case No. 2:16-CV-01072-SVW-MRWx on behalf of all similarly situated current and former truck drivers employed by Defendants in the U.S. District Court for the Central District of California. On Dec. 16, 2016, the Rich Plaintiffs filed their motion for class certification. On Dec. 22, 2016, before that motion was fully briefed, District Judge Dolly M. Gee transferred the Rich action to the Eastern District California under the first-to-file rule. On Feb. 9, 2017, Judge Drozd issued an order relating the Singh, Rich, and Phillips actions. On March 28, 2017, the Judge consolidated the Singh and Rich actions, and on June 15, 2017, consolidated the Phillips action with the two previously consolidated actions. In their operative complaints, the Plaintiffs in Singh, Rich, and Phillips, on behalf of themselves and all others similarly situated and similarly aggrieved, seek damages, restitution, penalties, pre- and post-judgment interest, costs, attorneys' fees, and any other relief deemed appropriate by the court based on their claims for: (1) misclassification of employees in violation of Labor Code Section 226(a)(1); (2) failure to provide meal periods; (3) failure to provide rest breaks; (4) failure to pay overtime wages; (5) failure to pay minimum wages; (6) failure to pay all wages upon separation; (7) failure to furnish timely and accurate wage statements; (8) failure to pay all wages owed every pay period; (9) failure to reimburse business expenses; (10) unlawful deductions from wages; (11) penalties under California's Private Attorneys General Act ("PAGA"); and (12) violation of California's Unfair Competition Law under California Business & Professions Code Section 17200, premised on their wage-and-hour claims. Following three mediation sessions, the parties reached a settlement. The first two mediation sessions occurred on July 12, 2016 and Sept. 14, 2016 before the Hon. Peter D. Lichtman (Ret.) and did not result in a settlement. Following those mediation sessions, both parties proceeded with depositions of the Plaintiffs, witnesses, defendants' current and former employees, and persons most knowledgeable ("PMK") in California and Georgia. The third mediation session involved the co-class counsel in the Singh, Rich, and Phillips actions, defendants and their counsel, and mediator Mark S. Ruby and resulted in a mediator's proposal, which the parties accepted. Under the settlement agreement, teh Defendants have agreed to pay $9,250,000, which includes (i) the total value of all individual settlement payments; (ii) attorneys' fees ($3,083,333.33) and costs ($90,000) that class counsel will request the court to award; (iii) settlement administration costs ($12,000); (iv) $7,500 enhancement payments awarded by the Court to each of the 18 named Plaintiffs, totaling $135,000; and (v) civil penalties of $100,000 recoverable under PAGA, of which 75% ($75,000) will be paid to the Labor Workforce and Development Agency ("LWDA") and 25% ($25,000) will be paid to class members. On April 13, 2018, the Plaintiffs filed the pending motion for preliminary approval of the class action settlement. The Plaintiffs seek an order: (i) preliminarily approving the proposed class action settlement; (ii) confirming CPT Group Inc. as the settlement administrator; (iii) approving and directing distribution of the class notice packet to be mailed to class members; (iv) approving the proposed class representatives and co-class counsel; and (v) scheduling a final fairness hearing with respect to the settlement agreement. Recognizing these risks faced by the Plaintiffs, Judge Drozd finds that the amount offered in settlement of these actions weighs in favor of preliminary approval. He also finds that they satisfied the Rule 23(a) and Rule 23(b)(3) Requirements. Finally, he finds that finds that the notice and the manner of notice proposed by the Plaintiff meets the requirements of Federal Civil Procedure Rule 23(c)(2)(B) and that the proposed mail delivery is also appropriate. For the reasons he stated, Judge Drozd denied the Plaintiffs' request to modify the settlement agreement. The preliminary class certification is approved for the settlement class defined as all current and former California residents who worked for the defendants in the position of owner-operator and/or independent contractor truck driver at any time from Feb. 9, 2011 through April 15, 2018. The Judge designated named Plaintiffs Jasbir Singh, Bany Lopez, Julio Vidrio, James Sliger, Derrick Lewis, Jerry Leininger, Kristopher Spring, Jerry Wood, Cappelli Burless, Robert Haskins, Douglas Luis, Paul Bonner, Christopher Cross, Leo Lewis, Richard Love, Wilfred Mcgirt, Nicholas Rich, and Latrina Phillips as the class representatives; the law firms of Kabateck Brown Kellner LLP and Wagner Jones Kopfman & Artenian LLP as the co-class counsel; and CPT Group, Inc. is approved as the settlement administrator. He approved the proposed form of notice and and approved the proposed settlement on a preliminary. The hearing for final approval of the proposed settlement is set for Oct. 16, 2018 at 9:30 a.m. The Judge adopted the proposed settlement implementation schedule, and the Plaintiff's counsel is directed to submit a motion for final approval of the settlement agreement, including an estimate of the PAGA claims, and a response to any objections in accordance with the schedule set forth in the Order. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/Am2hdA from Leagle.com. Jabir Singh, Plaintiff, represented by Andrew Butler Jones, Esq., Wagner, Jones, Kopfman, & Artenia LLP, Brian S. Kabateck -- bsk@kbklawyers.com -- Kabateck Brown Kellner, LLP, Cheryl Ann Kenner, Kabateck Brown Kellner LLP, Daniel Myers Kopfman, Wagner, Jones, Kopfman, & Artenian LLP, Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP, Angela Elizabeth Martinez, Wagner, Jones, Kopfman & Artenian LLP, Lawrence Mark Artenian, Wagner, Jones, Kopfman & Artenian LLP & Nicholas John Paul Wagner, Wagner, Jones, Kopfman, & Artenia LLP. Bany Lopez, Julio Vidrio, James Sliger, Derrick Lewis, Jerry Leininger, Kristopher Spring & Jerry Wood, Plaintiffs, represented by Brian S. Kabateck, Kabateck Brown Kellner, LLP, Daniel Myers Kopfman, Wagner, Jones, Kopfman, & Artenian LLP, Shant Arthur Karnikian , Kabateck Brown Kellner LLP, Andrew Butler Jones, Wagner and Jones, Angela Elizabeth Martinez, Wagner, Jones, Kopfman & Artenian LLP, Cheryl Ann Kenner, Kabateck Brown Kellner LLP, Lawrence Mark Artenian, Wagner, Jones, Kopfman & Artenian LLP & Nicholas John Paul Wagner, Wagner, Jones, Kopfman, & Artenia LLP. Nicholas E Rich, an individual on behalf of himself and all others similarly situated, Plaintiff, represented by Andrew Butler Jones, Wagner and Jones, Brian S. Kabateck, Kabateck Brown Kellner, LLP, Daniel Myers Kopfman, Wagner, Jones, Kopfman, & Artenian LLP, Joshua H. Haffner, Haffner Law, PC, Kevin Shawn Conlogue , Law Offices of Kevin S. Conlogue, Shant Arthur Karnikian , Kabateck Brown Kellner LLP, Cheryl Ann Kenner, Kabateck Brown Kellner LLP & Nicholas John Paul Wagner, Wagner, Jones, Kopfman, & Artenia LLP. Roadrunner Intermodal Services, LLC, Central Cal Transportation, LLC & Morgan Southern, Inc., Defendants, represented by A. Jack Finklea -- JFINKLEA@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Adam C. Smedstad -- asmedstad@scopelitis.com -- Scopelitis, Garvin, Light, Hanson & Feary, Christopher Chad McNatt, Jr. -- CMCNATT@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, LLP, James H. Hanson -- JHANSON@SCOPELITIS.COM -- Scopelitis Garvin Light Hanson & Feary, P.C., pro hac vice, Megan E. Ross, Scopelitis Garvin Light Hanson & Feary & Alaina Cathrine Hawley -- AHAWLEY@SCOPELITIS.COM -- Scopelitis, Garvin, Light, Hanson & Feary, P.C. Latrina Phillips, Defendant, represented by Andrew Butler Jones, Wagner and Jones, Brian S. Kabateck, Kabateck Brown Kellner, LLP, Daniel Myers Kopfman, Wagner, Jones, Kopfman, & Artenian LLP, Joshua H. Haffner, Haffner Law, PC, Kevin Shawn Conlogue , Law Offices of Kevin S. Conlogue, Shant Arthur Karnikian , Kabateck Brown Kellner LLP, Cheryl Ann Kenner, Kabateck Brown Kellner LLP & Nicholas John Paul Wagner, Wagner, Jones, Kopfman, & Artenia LLP. ROANOKE, VA: Policemen File Suit to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Dawn Renee Wright and Maurice Pendelton on behalf of themselves and all others similarly situated, Plaintiffs, v. City Of Roanoke, Virginia, Case No. 18-cv-00210, (W.D. Va., May 11, 2018), seeks declaratory relief, injunctive relief, and to recover unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act. Defendant is a political subdivision of the State of Virginia and manages the primary law enforcement agency comprising police officers and various clerical, administrative and management personnel. Wright and Pendelton are police officers. Throughout their employment as police officers, they were not paid overtime compensation, says the complaint. [BN] Plaintiff is represented by: Thomas E. Strelka, Esq. L. Leigh R. Strelka, Esq. N. Winston West, IV, Esq. STRELKA LAW OFFICE, PC Warehouse Row 119 Norfolk Avenue, S.W., Suite 330 Roanoke, VA 24011 Tel: (540) 283-0802 Email: thomas@strelkalaw.com leigh@strelkalaw.com winston@strelkalaw.com - and - Harris D. Butler, III, Esq. Zev H. Antell, Esq. Paul M. Falabella, Esq. BUTLER ROYALS, PLC 140 Virginia Street, Ste. 302 Richmond, VA 23219 Telephone: (804) 648-4848 Facsimile: (804) 237-0413 Email: harris.butler@butlerroyals.com zev.antell@butlerroyals.com paul.falabella@butlerroyals.com ROOFRX INC: Doesn't Pay Wages to Rooferes, "Gorman" Suit Claims --------------------------------------------------------------- JOHNNIE EDWIN GORMAN, individually and on behalf of all others similarly situated, Plaintiff v. ROOFRX, INC., and DOES 1 through 30, inclusive, Case No. BC711978 (Cal. Super., Los Angeles Cty., June 27, 2018) is an action against the Defendants for failure to pay wages, provide meal and rest periods, reimburse employees for business expenses, and provide itemized wage statements. Mr. Gorman was employed by the Defendants as roofer. Roof Rx, Inc. provides roof repair and maintenance services for homeowners, property managers, real estate professionals, and commercial building owners. Roof Rx, Inc. was founded in 1998 and is based in Los Angeles, California. [BN] The Plaintiff is represented by: Alvin M. Gomez, Esq. Stephen N. Ilg, Esq. GOMEZ LAW GROUP 2725 Jefferson Street, Suite 7 Carlsbad, CA 92008 Telephone: (858) 552-0000 Facsimile: (760) 720-5217 E-mail: alvingomez@thegomezlawgroup.com RUSSELL P. GOLDMAN: Court Certifies Class in "Carney" FDCA Suit --------------------------------------------------------------- In the case, BRIAN P. CARNEY and WILLIAM C. GUMPPER, JR., Plaintiffs, v. RUSSELL P. GOLDMAN, P.C. and JOHN DOES 1-25, Defendants, Civil Action No. 15-00260-BRM-DEA (D. N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey (i) denied Goldman's Motion for Summary Judgment, and (ii) granted Plaintiffs' Motion to Certify Class. From 2007 to 2010, Carney borrowed $92,000 from the New Jersey Higher Education Student Assistance Authority ("HESAA"). Gumpper, Carney's stepfather, cosigned three of those loans; the total principal amount of his cosign is $69,000. In connection with these loans, Carney and Gumpper each signed promissory notes in favor of HESAA which state, in pertinent part, that he will pay all charges, collection costs and all other costs that are permitted under the Note for the collection of the loan, which the lender or subsequent holder of the Promissory Note incurs in collecting the loan. At some point, the Plaintiffs stopped making payments on the loans and HESAA retained Goldman as its attorney for the purpose of collection of those debts. On June 27, 2014, Goldman sent the Plaintiffs demand letters stating the "amount due" as $130,757.52 for Carney and $110, 251.01 for Gumpper. The letters further stated that there remains due a balance, which includes interest and collection costs. The collection costs represent the contingency fee agreement between Goldman and HESAA. On July 20, 2014, Carney disputed the validity of his debt. Therefore, on July 23, 2014, Goldman sent him a letter providing him with copies of the promissory notes on all four loans. That letter also itemized the "amount due," by breaking down the amount by principal, interest, and collection costs. Because neither Carney nor Gumpper paid their debts, Goldman filed a Complaint against them, on behalf of HESAA, in the Superior Court of New Jersey. That action sought collection costs and attorneys' fees in the amount of $21, 211.03 against Carney and $16,689.05 against Gumpper. Carney and Gumpper represented themselves pro se in the State Court action. In Carney and Gumpper's State Court Answer to HESAA's Complaint, they denied attorneys' fees were due because it is the Defendant's understanding that the Plaintiff's customary retainer agreement provides for a fee only when an amount is actually collected and is contingent on the amount collected. Carney and Gumpper's State Court Answer was eventually stricken for their failure to answer interrogatories. Thereafter, HESAA sought a default judgment against the Plaintiffs', which was entered on Sept. 28, 2015. The Judgment was entered in favor of HESAA and against Carney for $149,122.91, plus costs, and against Gumpper for $117,415.45, plus costs. Included in the judgment amounts were attorney's fees as asserted in HESAA's certification to the State Court. On Jan. 13, 2015, the Plaintiffs filed their initial class action complaint against Goldman. On Feb. 19, 2015, Goldman filed its Answer, and the parties began to engage in discovery. On June 17, 2016, the Plaintiffs filed an Amended Complaint alleging Goldman violated several provisions of the FDCPA by attempting to collect collection costs when such costs had not been incurred at the time the June 27 Letters were sent. On Aug. 15, 2016, Goldman moved to dismiss the case for lack of jurisdiction. On Dec. 22, 2016, the Court denied the Motion. On Jan. 2, 2017, Goldman filed an Answer to the Amended Complaint. On Dec. 13, 2017, Goldman filed a Motion for Summary Judgment and the Plaintiffs filed a Motion to Certify Class. Both motions are opposed. Goldman argues that the Plaintiffs' claims are barred by the entire controversy doctrine because the latter raised their FDCPA claims before the State Court, but never sought to join Goldman as a party. The Plaintiffs argue Goldman's entire controversy claim is time barred, or alternatively that it does not apply because the FDCPA claims in the matter are not related to the claims in the State Court Action. Assuming arguendo, Goldman's entire controversy defense is not time barred, Judge Martinotti finds that Goldman has failed to carry its burden of demonstrating that it is entitled to the entire controversy defense. It has failed to demonstrate Plaintiffs engaged in inexcusable conduct or that it was prejudiced. Goldman's argument is that the Plaintiffs raised their FDCPA issues before the Superior Court in their State Court Answer, but never sought to join Goldman as a party. This is not inexcusable conduct. The Judge also finds that Goldman has failed to demonstrate it will suffer substantial prejudice from its nonjoinder in the State Court Action. Indeed, Goldman points to no evidence of harm in the Plaintiffs' bringing the litigation. He does not find that increased costs of litigation are sufficient grounds, particularly where Goldman incurred no expenses in the State Court Action because it was not a party. Accordingly, he will deny Goldman's Motion for Summary Judgment on the basis of the entire controversy doctrine. The Plaintiffs argue the June 27 Letters violated the FDCPA because it sought to collect attorneys' fees that were not incurred when the debt letter was sent, considering Goldman's attorneys' fees were based on contingency. The Judge finds that because the terms of the promissory notes only required the Plaintiffs to pay fees "incurred" and no such fees were incurred, Goldman violated Section 1692e(2)(A), (10) and Section 1692f, (f)(1) by stating in the June 27 Letters, that there remains due a balance, which includes interest and collection costs. Accordingly, the Judge will deny Goldman's Motion for Summary Judgement. However, the only claim that will proceed is that Goldman's June 27 Letters violated the FDCPA because it attempted to collect collection costs when such costs had not been incurred at the time the debt collection letters were sent. Finally, as to the class certification motion, the Judge finds that the class satisfies the requirements of Rule 23(a) and Rule 23(b)(3). Accordingly, he will grant the Plaintiffs' Motion to Certify Class. For the reasons set forth, Judge Martinotti (1) denied Goldman's Motion for Summary Judgment, and (2) granted the Plaintiffs' Motion to Certify class. The counsel will confer regarding the approval form of class notice, and shall, within 30 days of entry of the accompanying Order, submit an appropriate motion for approval of the class notification for the Court's approval. A full-text copy of the Court's May 30, 2018 Opinion is available at https://is.gd/l324sz from Leagle.com. BRIAN P. CARNEY, on behalf of himself and all others similarly situated & WILLIAM C. GUMPPER, JR., on behalf of himself and all others similarly situated, Plaintiffs, represented by JOSEPH K. JONES -- jkj@legaljones.com -- Jones, Wolf & Kapasi, LLC & BENJAMIN JARRET WOLF, Jones, Wolf & Kapasi, LLC. RUSSELL P. GOLDMAN, P.C., Defendant, represented by ANN FRANCES KIERNAN. SLACK TECHNOLOGIES: "D'Ottavio" Sues Over Unsolicited SMS Ads ------------------------------------------------------------- Gino D'Ottavio, individually and on behalf of all others similarly situated, Plaintiff, v. Slack Technologies, Defendant, Case No. 18-cv-09082 (D. N.J., May 11, 2018), seeks damages, injunctive relief and any other available legal or equitable remedies resulting from the illegally transmitting unsolicited commercial text messages in violation of the Telephone Consumer Protection Act. Defendant maintains an application that in part allows users to connect with each other. Sometime after signing up at Slack.com, Plaintiff began receiving unsolicited text messages from Slack.com with an invitation to install Slack. [BN] Plaintiff is represented by: Ari Marcus, Esq. MARCUS & ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 Email: Ari@MarcusZelman.com SPEEDWAY LLC: Court Denies Certification Bid in "Teggerdine" ------------------------------------------------------------ The United States District Court for Middle District of Florida, Tampa Division, denied Plaintiffs' Motion for Class Certification in the case captioned KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiff, v. SPEEDWAY, LLC and WORLDPAY US INC., Defendants, Case No: 8:16-cv-03280-T-27TGW (M.D. Fla.). This purported class action arises from the implementation of a payment processing program, the Real Time Clearing program (RTC), at Speedway's retail gasoline convenience stores and the pre- authorization requests and holds placed on customers' accounts who purchased gasoline at the pump. The Plaintiff's Amended Complaint included claims of negligence, breach of implied contract, unjust enrichment, and violations of the Florida Deceptive and Unfair Trade Practices Act. The Plaintiff moves for class certification under Rule 23(b)(3) for this class: All persons residing in the United States who made a gasoline purchase with a Visa payment card at a Speedway station from November 16, 2016 through and including December 31, 2016, and had a $125 authorization hold placed on their personal financial account. The Plaintiff seeks certification under Rule 23(b)(3), which requires her to demonstrate (1) that questions of law or fact common to class members predominate over questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Numerosity The requirement of numerosity is met when the class is so numerous that joinder of all members is impracticable. The Plaintiff submits evidence that over 400,000 transactions were processed on November 16 and 17. And, approximately 56,000 were processed when RTC was not operating as intended. The numerosity requirement is therefore met. Commonality In attempting to meet the commonality requirement, the Plaintiff focuses on the Defendants' conduct in requesting the preauthorization hold, contending that the conduct is common to and effected all class members, and that the following issues are common to all class members and therefore susceptible to class wide proof, inter alia: -- Whether Speedway was negligent in failing to inform its customers that it requires a pre-authorization request of $125 for every payment card transaction at a self-pay gasoline pump, which will result in a temporary hold on funds; and -- Whether the pre-authorization request of $125 was reasonable in light of the average consumer transaction amounts at Speedway, in accordance with Visa policy. These issues are common to the Class on the theory of negligence. The Plaintiff has therefore met her relatively light burden of establishing commonality under Rule 23. Typicality Likewise, the Plaintiff's claim is typical of the class because the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. The Plaintiff's claim arises out of the same course of conduct, the implementation of RTC, that is typical of the class claim. She therefore meets the typicality requirement. Adequacy of Representation Rule 23(a) requires that the Plaintiff fairly and adequately protect the interests of the class which encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action. No substantial conflicts have been identified. The Plaintiff has dutifully prosecuted this action with qualified and competent counsel. The Plaintiff meets the adequacy of representation requirement. Rule 23(b)(3) Class certification is appropriate under Rule 23(b)(3) if the Plaintiff demonstrates by a preponderance of the evidence that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. THe Plaintiff argued that by certifying the class for liability purposes only, common issues would predominate over individual issues. Pointing out that the Plaintiff's negligence claim is a matter of state common law, the Defendants countered that the law of negligence varies among the twenty-one states in which the transactions occurred and therefore individual issues regarding liability for negligence predominate. While the Plaintiff is correct that the Defendants' implementation of RTC and the pre-authorization hold requests is common to all purported class members, she is wrong to suggest that no individual inquiry will be required to establish any of the Plaintiff's claims because the factual and legal issues surrounding the Defendants' liability are common among Class members. While the factual issue may be common, the liability issue under the various state laws of negligence has not been shown to be common among class members. It follows that she also fails to demonstrate that a class action is a superior method for managing the litigation of the various state law negligence claims. The difficulty likely to be encountered in managing the proposed class based on various iterations of the law of negligence among twenty-one states is self evident. Accordingly, the Plaintiff's motion to certify the class under Rule 23(b)(3) is denied. A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/ybxaknkv from Leagle.com. Kara Teggerdine, individually and on behalf of all others similarly situated, Plaintiff, represented by Jean Sutton Martin, Office of Jean Sutton Martin PLLC, pro hac vice, John Allen Yanchunis, Sr., Morgan & Morgan, PA, Marcio William Valladares, Morgan & Morgan, PA,Patrick A. Barthle, Morgan & Morgan, PA & Ryan Joseph McGee, Morgan & Morgan, PA. Speedway, LLC, Defendant, represented by Daniel Brandon Rogers -- drogers@shb.com -- Shook, Hardy & Bacon, LLP, Edward A. Marshall -- edward.marshall@agg.com -- Arnall Golden & Gregory, LLP, pro hac vice, Jennifer A. McLoone -- jmcloone@shb.com -- Shook, Hardy & Bacon, LLP & Theresa Ann Yelich Kananen -- theresa.kananen@agg.com -- Arnall Golden & Gregory, LLP, pro hac vice. WorldPay US, Inc., Defendant, represented by Daniel Brandon Rogers, Shook, Hardy & Bacon, LLP, Edward A. Marshall, Arnall Golden & Gregory, LLP & Jennifer A. McLoone, Shook, Hardy & Bacon, LLP. SPEEDWAY LLC: "Howe" BIPA Suit Remanded to Ill. State Court ----------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Plaintiffs' Motion to Remand the case captioned CHRISTOPHER HOWE, individually, and on behalf of all others similarly situated, Plaintiff, v. SPEEDWAY LLC, et al., Defendants, No. 17-cv-07303 (N.D. Ill.). At the beginning of his employment at a Speedway gas station, Plaintiff Christopher Howe was required to scan his fingerprint, which his employer used to authenticate his identity and track his time. Howe initially brought this putative class action in Illinois state court against Defendants Speedway LLC (Speedway) and Marathon Petroleum Co. (Marathon), arguing that Defendants collected and stored his and similarly-situated individuals' fingerprints in violation of Illinois's Biometric Information Privacy Act (BIPA). This class action was originally filed in the Circuit Court of Cook County, Illinois, however the Defendants removed the action to this Court, claiming jurisdiction on the basis of the Class Action Fairness Act (CAFA). Howe moved to remand the action back to state court, claiming that the Defendants' motion to dismiss demonstrated that Howe did not have Article III standing to bring this action in federal court. The facts in this case are analogous to those in the cases finding no injury-in-fact from a private entity's failure to provide disclosures. In McCullough v. Smarte Carte, Inc., 2016 WL 4077108, the plaintiff had to scan her fingerprint before renting a locker. When she returned to the locker she unlocked it by again scanning her fingerprint. The court observed that the plaintiff undoubtedly understood when she first used the system that her fingerprint data would have to be retained until she retrieved her belongings from the locker. The court then held that, while the defendant's failure to obtain advance consent and make the required disclosures was a technical violation of BIPA, there was no injury-in-fact because the plaintiff did not allege that her biometric information was disclosed or at risk of disclosure. In Vigil v. Take-Two Interactive Software, Inc., 235 F.Supp.3d 499, a basketball videogame allowed players to create a digital player in their likeness by holding their face to a camera and allowing the game to scan their faces and map it onto an avatar. While the videogame developer did provide limited disclosures before collecting the biometric data, the plaintiffs argued that the disclosures were deficient. Finding that these procedural violations did not implicate BIPA's data protection interest, the court observed that the plaintiffs, at the very least, understood that the videogame developer had to collect data based upon their faces in order to create the personalized basketball avatars, and that a derivative of the data would be stored in the resulting digital faces of those avatars so long as those avatars existed. The question here then is whether the Defendants' alleged disclosure failures constitute a concrete harm to this interest in data protection. Put another way: Is the injury that Howe suffered as a result of his failure to receive disclosures the type of injury the statute seeks to guard against? Absent any additional harm caused by the failure to provide the required disclosures, that question must be answered in the negative. The Court finds that the Defendants undoubtedly violated BIPA if they failed to provide Howe disclosures and obtain his written authorization prior to collecting and storing his fingerprints and did not create or make publicly available a biometric data retention and destruction policy. However, those procedural violations did not cause him an injury-in-fact. Consequently, Howe does not have standing to have his claim heard in federal court and the action must be remanded to state court. A full-text copy of the District Court's May 31, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/y8u8kw6b from Leagle.com. Christopher Howe, individually and on behalf of all others similarly situated, Plaintiff, represented by Andrew C. Ficzko -- aficzko@stephanzouras.com -- Stephan Zouras, Llp, Alexander Glenn Tievsky -- atievsky@edelson.com -, Edelson Pc, Ari Jonathan Scharg -- ascharg@edelson -- Edelson P.C., Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC, Christopher Lillard Dore -- cdore@edelson.com -- Edelson PC, J. Eli Wade Scott -- ewadescott@edelson.com -- Edelson PC, James B. Zouras -- jzouras@stephanzouras.com -- Stephan Zouras, LLP, Ryan F. Stephan -- rstephan@stephanzouras.com -- Stephan, Zouras, LLP & Sydney M. Janzen, Edelson PC. Speedway LLC & Marathon Petroleum Company, Defendants, represented by Gary M. Miller -- gmiller@shb.com -- Shook, Hardy & Bacon LLP, Alfred Saikali -- asaikali@shb.com -- SHOOK, HARDY & BACON L.L.P., pro hac vice, Anna S. Knight -- asknight@shb.com -- Shook, Hardy & Bacon LLP, Patrick J. Castle -- pcastle@shb.com -- Shook, Hardy & Bacon LLP & Tristan L. Duncan -- tlduncan@shb.com -- SHOOK, HARDY & BACON L.L.P., pro hac vice. STANLEY STEEMER: "Arensdorff" Remanded to Los Angeles Super. Ct. ---------------------------------------------------------------- In the case, NICHOLAS ARENSDORFF, on behalf of himself and all others similarly situated, Plaintiffs, v. STANLEY STEEMER INTERNATIONAL, INC., an Ohio corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 17-CV-08645-MWF-KLSx (C.D. Cal.), Judge Michael W. Fitzgerald of the U.S. District Court for the Central District of California, Western Division, granted the parties' Stipulation to Remand the Case to Los Angeles Superior Court, and remanded the case to Los Angeles Superior Court, Complex Division. The parties will bear their own attorneys' fees and costs associated with the remand. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/yooz1a from Leagle.com. Nicholas Arensdorff, on behalf of himself and all others similarly situated, Plaintiff, represented by David D. Bibiyan -- david@tomorrowlaw.com -- Bibiyan Law Group PC, Mehrdad Bokhour -- mehrdad@tomorrowlaw.com -- Bibiyan and Bokhour APC, James Alexander De Sario, Nourmand Law Firm APC & Michael Nourmand, Nourmand Law Firm APC. Stanley Steemer International Inc, an Ohio corporation, Defendant, represented by Brittany Maraya Hernandez -- Brittany.Hernandez@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP, John L. Barber -- John.Barber@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP & Rachel J. Lee -- Rachel.Lee@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP. STEPHEN EINSTEIN: Powlett Alleges Wrongful Debt Collections ----------------------------------------------------------- Antonnia Powlett, individually and on behalf of all others similarly situated, Plaintiff v. Stephen Einstein & Associates, P.C., Anthony S. Poulin, and Pinpoint Technologies, LLC, Defendants, Case No. 1:18-cv-05805-ALC (S.D.N.Y., June 27, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Andrew L. Carter, Jr. Stephen Einstein & Associates is a debt collection firm located in New York City. The Company works on behalf of banks, credit unions, landlords, contractors, and more to collect unpaid debt from consumers. [BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 25 Harriet Lane Huntington, NY 11743 Telephone: (631) 335-1107 Facsimile: (631) 824-9328 E-mail: mpash@verizon.net STEWARD HEALTH: "Adkins" Suit Alleges ADA Violation --------------------------------------------------- Samantha Adkins, individually and on behalf of all others similarly situated v. Steward Health Care System, LLC, Case No. 2:18-cv-00841 (W.D. Pa., June 28, 2018), is brought against the Defendant for alleged violations of Title III of the Americans with Disabilities Act and its implementing regulations, in connection with accessibility barriers in the parking lots and paths of travel at various public accommodations owned, operated, controlled and/or leased by the Defendant. The Plaintiff has a mobility disability and is limited in the major life activity of walking, which has caused her to be dependent upon a wheelchair for mobility. The Plaintiff has visited Defendant's facilities and was denied full and equal access as a result of Defendant's inaccessible parking lots and paths of travel. The Plaintiff Samantha Adkins is, and at all times relevant hereto was, a resident of Pennsylvania. As described above, as a result of her disability, the Plaintiff relies upon a wheelchair for mobility. She is therefore a member of a protected class under the ADA. The Defendant Steward Health Care System, LLC is the largest private, for-profit hospital operator in the United States, and operates community hospitals, urgent care centers, and skilled nursing facilities, with a projected 3 million in-network patients in 2018. The Defendant is a limited liability company organized under Delaware law and headquartered at 111 Huntington Avenue, Suite 1800, Boston, MA 02199. [BN] The Plaintiff is represented by: R. Bruce Carlson, Esq. Kelly Iverson, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 STREAM ENERGY: "Basile" Settlement Has Prelim Court Approval ------------------------------------------------------------ The United States District Court for the Middle District of Pennsylvania granted Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement in the case captioned STEVEN BASILE, on behalf of himself and all others similarly situated, Plaintiff, v. STREAM ENERGY PENNSYLVANIA, LLC, et al., Defendants, Case No. 1:15-cv-01518 (M.D. Pa.). The Plaintiff filed a putative class action complaint against Defendants Stream Energy Pennsylvania, LLC, Stream Energy Pennsylvania, LLC d/b/a Stream Energy, and Stream Energy d/b/a Stream Energy Pennsylvania LLC (Defendants), alleging that his deregulated electricity provider did not abide by the terms of his service contract, resulting in higher-than-expected rates. The proposed Settlement Class is defined as all persons in the Commonwealth of Pennsylvania who were enrolled as a customer of Defendants and were on Defendants' Variable Rate Electricity Plan at any time during the Class Period. Numerosity The numerosity requirement is satisfied if "the class is so numerous that joinder of all members is impracticable. Here, the Plaintiff represents that the proposed Settlement Class would include the Defendants' current and former customers, which the records of the Defendants indicate could be greater than 70,000 accounts. Therefore, the Court finds that, for purposes of preliminary certification, Rule 23(a)'s numerosity requirement is met. Commonality The second Rule 23(a) prerequisite requires that there are questions of law or fact common to the class. The Plaintiff argues that there are many common issues of fact and law, including whether Defendants breached the price terms in their agreements with the Plaintiff and the Settlement Class by utilizing factors not contained in the agreements to set their prices. For purposes of preliminary certification, the Court finds that Rule 23(a)'s commonality requirement is satisfied. Typicality Here, the Plaintiff contends that his claims and those of the members of the Settlement Class arise from the same conduct, as the Defendants' Disclosure Statement provides specific factors that the Defendants are required to rely upon in setting their rates and there are no unique facts or circumstances that would render the Plaintiff as atypical. For purposes of preliminary certification, the Court finds that Rule 23(a)'s typicality requirement is satisfied. Adequacy of representation The fourth Rule 23(a) prerequisite provides that representative parties must fairly and adequately protect the interests of the class. Upon review of the record, the Court is persuaded that there is no conflict of interest existing between Plaintiff and members of the Settlement Class, and that the competence and experience evidenced by Plaintiff's counsel satisfies Rule 23(a)'s adequacy of representation requirement. The proposed Settlement Agreement provides the following benefits to Settlement Class Members: (1) each Class Member who was a customer on Defendants' Variable Rate Plan at any time between June 1, 2011 and February 29, 2015 (Time Period 1) will receive payment in the amount of 5% of all amounts paid to Defendants for services provided under the Variable Rate Plan during Time Period 1; and (2) each Class Member who was a customer on Defendants' Variable Rate Plan at any time between March 1, 2015 and the date of preliminary approval (Time Period 2), will receive payment in the amount of 2% of all amounts paid to Defendants for services provided under the Variable Rate Plane during Time Period 2. Subject to the Court's final approval, the Defendants have also agreed that the Plaintiff can seek a service award reflecting the amount of time and effort expended in acting as representative of the Settlement Class, and that they will not oppose payment of an amount not to exceed five thousand dollars ($5,000.00). The Defendants also agree to pay the costs of notice to the Settlement Class and the cost of settlement and claims administration. Further, subject to the Court's final approval, the Defendants agree that appointed Class Counsel will be entitled to seek an award of attorneys' fees and costs in an amount up to one million fifty thousand dollars ($1,050,000.00). In light of the risks faced by the Plaintiff and the Defendants in continuing litigation and the benefits provided under the proposed Settlement Agreement, the Court finds that the proposed Settlement Agreement falls within the range of possible approval for purposes of preliminary approval. The proposed payment of $1,050,000.00 in attorneys' fees and costs is separate from and in addition to the payment of the Settlement amounts available to the eligible members of the Settlement Class. Furthermore, the proposed monetary award to the Plaintiff is permissible in class action litigation and appears reasonable at this stage. Accordingly, the Court will preliminarily approve the proposed Settlement Agreement. A full-text copy of the District Court's May 31, 2017 Memorandum is available at https://tinyurl.com/ycdd5yrc from Leagle.com. Steven Basile, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C., Bryan S. Neiderhiser, Marcus & Mack, P.C., D. Aaron Rihn, Robert Peirce & Associates, P.C., & Troy M. Frederick, Marcus & Mack, P.C. Stream Energy Pennsylvania, LLC, Stream Energy Pennsylvania, LLC, doing business as Stream Energy & Stream Energy, doing business as Stream Energy Pennsylvania, LLC, Defendants, represented by Robert C. Walters -- rwalters@gibsondunn.com, GIBSON DUNN & CRUTCHER LLP, pro hac vice, Andrew P. LeGrand -- alegrand@gibsondunn.com -- Gibson Dunn & Crutcher, LLP, Austin V. Schwing -- aschwing@gibsondunn.com -- Gibson, Dunn & Crutcher LLP,Gregory S. Voshell -- gsv@elliottgreenleaf.com -- Elliott Greenleaf, P.C., John P. Elliott -- jpe@elliottgreenleaf.com -- Elliott Greenleaf & Siedzikowski, P.C. & Olivia A. Adendorff -- oadendorff@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP. SUEZ WATER: Fails to Pay Proper Wages, "Rivera" Suit Alleges ------------------------------------------------------------ PEDRO RIVERA, individually and on behalf of all others similarly situated, Plaintiff v. SUEZ WATER ENVIRONMENTAL SERVICES, INC.; SUEZ WATER LONG ISLAND, INC.; SUEZ WATER WESTCHESTER, INC.; SUEZ WATER, NEW YORK, INC.; SUEZ WATER SOUTH COUNTY, INC.; and SUEZ WATER OWEGO-NICHOLS, INC., Defendants, Case No. 605034/2018 (N.Y. Sup., Nassau Cty., Apr. 17, 2018) seeks to recover wages and benefits against the Defendants. Mr. Rivera performed construction related work for the Defendants. Suez Water Environmental Services Inc. f/k/a United Water Environmental Services Inc. provides drinking water and wastewater treatment services. The Company delivers drinking water, recycles wastewater for irrigation and industrial use, and conserves drinking water services. The Company serves customers in the United States. [BN] The Plaintiff is represented by: Lloyd R. Ambinder, Esq. James E. Murphy, Esq. VIRGINIA & AMBINDER, LLP 40 Broad, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: lambinder@vandallp.com - and - Jeffrey K. Brown, Esq. Sean O'Hara, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516)873-9550 E-mail: jbrown@leedsbrownlaw.com SZNW HOSPITALITY: Underpays Room Attendants, "Molina" Suit Says --------------------------------------------------------------- ROSA MOLINA, individually and on behalf of all others similarly situated, Plaintiff v. SZNW HOSPITALITY LLC, and DOES 1-20, inclusive, Defendants, Case No. BC711658 (Cal. Sup., Los Angeles Cty., June 26, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Ms. Molina was employed by the Defendants as a room attendant at the Sheraton Universal Hotel in Los Angeles County, California. SZNW Hospitality LLC operates the Sheraton Universal Hotel located in Universal City, California. The Company is engaged in the hotel business. [BN] The Plaintiff is represented by: Vache A. Thomassian, Esq. Caspar Jivalagian, Esq. KJT LAW GROUP LLP 230 N. Maryland Ave., Suite 306 Glendale, CA 91206 Telephone: (818) 507-8525 E-mail: caspar@kjtlawgroup.com - and - Christopher A. Adams, Esq. ADAMS EMPLOYMENT COUNSEL 4740 Calle Carga Camarillo, CA 93012 Telephone: (818) 425-1437 E-mail: ca@AdamsEmploymentCounsel.com THOM BROWNE: Faces "Olsen" Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Thom Browne, Inc. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Thom Browne, Inc., Defendant, Case No. 1:18-cv-06395 (S.D. N.Y., July 15, 2018). Thom Browne, Inc. desgins and markets apparel for men. The company is based in New York, New York.[BN] The Plaintiff appears PRO SE. The Defendant is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com TREESAP FARM: Faces "Aguilar" Suit in Sacramento California ----------------------------------------------------------- A class action lawsuit has been filed against Treesap Farm LLC. The case is captioned as Bryan Aguilar and Jessie Rivera, individually and on behalf of all others similarly situated, Plaintiffs v. Treesap Farm LLC; Tree Town USA; Mark Marriott; Does 1 through 100; and Village Nurseries Wholesale LLC, Defendants, Case No. 34-2018-00235992-CU-OE-GDS (Cal. Super., Sacramento Cty., June 30, 2018). Treesap Farms, LLC was founded in 2015. The company's line of business includes operating timber tracts or tree farms. [BN] The Plaintiffs are represented by R Parker White, Esq., and Jeffrey D Fulton, Esq. U.S. EXPRESS ENTERPRISES: Underpays Truck Drivers, Nunez Claims --------------------------------------------------------------- GABRIEL NUNEZ, individually and on behalf of all others similarly situated, Plaintiff v. U.S. EXPRESS ENTERPRISES, INC.; U.S. EXPRESS, INC.; and DOES 1-100, Defendants, Case No. BC711661 (Cal. Super., Los Angeles Cty., June 26, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Nunez was employed by the Defendants as a truck driver. U.S. Xpress Enterprises, Inc. operates as an asset-based truckload carrier providing services primarily in the United States. The company was founded in 1985 and is headquartered in Chattanooga, Tennessee. [BN] The Plaintiff is represented by: David Borgen, Esq. Raymond A. Wendell, Esq. GOLDSTEIN BORGEN DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 - and - Justin Swidler, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER, LLC 1101 Kings Hwy. N., Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 - and - James M. Sitkin, Esq. LAW OFFICES OF JAMES M. SITKIN One Kaiser Plaza, Suite 505 Oakland, CA 94612 Telephone: (415) 318-1048 Facsimile: (415) 362-3268 UBER TECHNOLOGIES: Antitrust Claims in "MacCausland" Dismissed -------------------------------------------------------------- Judge Nathaniel M. Gorton of the U.S. District Court for the District of Massachusetts granted the Defendant's partial motion to dismiss the Plaintiff's antitrust claims in the case, Raymond P MacCausland, Individually and on Behalf of All Persons Similarly Situated, Plaintiff, v. Uber Technologies, Inc. and Rasier, LLC, Defendants, Civil Action No. 17-10253-NMG (D. Mass.). This is a putative class action brought by MacCausland on behalf of taxi drivers in the Greater Boston area. The Plaintiff alleges that Uber competed unlawfully in the on-demand, ride-hail ground transportation market in and around Boston, Massachusetts. He alleges that Uber competed unfairly and deceptively in violation of the common law and of the Massachusetts Consumer Protection Act, that Uber violated state and federal antitrust law and that Uber engaged in a civil conspiracy and aided and abetted unfair competition. Uber entered the Boston market for private transportation services in 2011 and launched its UberX service in 2013. The company provides a digital tool for potential riders to request private vehicles-for-hire by using Uber's free "smart phone application." Users who open the Uber app on their mobile phones are shown a map of their location or a nearby designated pick-up point and the available Uber-affiliated vehicles in that vicinity. According to MacCausland, the City of Boston has issued approximately 1,825 taxi licenses, referred to as taxi medallions, subject to a strict and extensive city regulatory regime. In contrast, there are over 20,000 cars-for-hire that currently provide Uber's ride-hailing service in the Boston area. In February, 2017, MacCausland, a Boston taxi driver, filed this complaint against Uber. At the same time, taxi medallion holders sued Uber under the same legal theories that the Plaintiff alleges. That related action involves seven different groups of plaintiffs who represent over 800 plaintiff taxi companies in the Greater Boston area. Originally, seven separate complaints were filed in the district between December 2016, and April 2017. The Court consolidated the cases pursuant to Fed. R. Civ. P. 42(a)(2) in October 2017. In December, 2017, this session ruled on Uber's motion to dismiss the consolidated action. The Court held that the so-called Malden Plaintiffs stated a claim for unfair competition under the common law and M.G.L. c. 93A and that the Plaintiffs stated a claim for aiding and abetting unfair competition and civil conspiracy to commit unfair competition. It allowed the Defendants' motion to dismiss claims against two of Uber's founders for want of personal jurisdiction. It also allowed Uber's motion to dismiss with respect to the Plaintiffs' antitrust claims, tortious interference claims and failed theories of civil conspiracy. After the issuance of that memorandum and order, the Plaintiffs in the Malden cases as well as the Plaintiff in the case (MacCausland) amended their complaints. MacCausland's second amended complaint mimics the amended complaints in Malden. He asserts counts of unfair and deceptive trade practices under the common law and Massachusetts Consumer Protection Act, as well as aiding and abetting and unfair competition. He has also added factual allegations to his complaint which bear upon his claims of violation of state and federal antitrust law. In May, 2018, the parties in the case filed a stipulation of dismissal against the individual Defendants. Before the Court is Uber's motion to dismiss MacCausland's antitrust claims. Judge Gorton finds that MacCausland fails to allege facts supporting a predatory pricing claim. His new allegations do not cure the deficiencies that doomed the Malden Plaintiffs. Basic facts such as what an average or median "ride" in the Boston area costs Uber, or costs a taxi, are absent. Uber's global performance does not constitute a relevant allegation as to Uber's costs in the "ride-hailing market in the City of Boston. Furthermore, the Judge finds that although the Plaintiff correctly notes that Uber is a privately-held company that does not disclose relevant financial and market information, that fact does not absolve the Plaintiff from meeting the required pleading standard. In a similar vein, MacCausland fails to allege facts demonstrating Uber's intent to monopolize. Equally important, he says the Plaintiff fails to show an injury to Boston consumers. That omission is dispositive, because antitrust plaintiffs must show that the defendants' actions caused an injury to competition, as distinguished from impact on themselves. Finally, the Judge finds the analysis in Philadelphia Taxi Ass'n, Inc. v. Uber Techs., Inc., 886 F.3d 332 (3d Cir. 2018), applicable and persuasive. In that case, Philadelphia taxicab drivers and taxicab companies alleged that Uber's entry into the Philadelphia taxicab market violated the Sherman Act. Just as the Plaintiff does, the Philadelphia plaintiffs argued that Uber's actions were illegal, predatory and led to a sharp drop in the value of taxicab medallions as well as a loss of profits. MacCausland's complaint and legal theories are substantially indistinguishable from those dismissed in Philadelphia Taxi and the Judge sees no reason to diverge from the well-reasoned opinion in that case. For these reasons, Judge Gorton allowed the Defendants' partial motion to dismiss the antitrust claims in the second amended complaint. A full-text copy of the Court's May 30, 2018 Memorandum and Order is available at https://is.gd/KQijxK from Leagle.com. Raymond P MacCausland, Individually and on Behalf of all Persons Similarly Situated, Plaintiff, represented by Darin M. Colucci -- darin@coluccilaw.com -- Colucci, Colucci & Marcus, P.C., Brendan R. Pitts -- bpitts@coluccilaw.com -- Colucci, Colucci, Marcus & Flavin, P.C. & Paul K. Flavin -- pflavin@coluccilaw.com -- Colucci, Colucci, Marcus & Flavin, P.C. Uber Technologies, Inc., Defendant, represented by Michael Sheetz -- msheetz@cooley.com -- Cooley LLP, Adam S. Gershenson -- agershenson@cooley.com -- Cooley LLP, Beatriz Mejia -- mejiab@cooley.com -- Cooley LLP, pro hac vice, Michael E. Welsh - - mwelsh@cooley.com -- Cooley LLP & Timothy W. Cook -- tcook@cooley.com -- Cooley LLP. Rasier, LLC, Defendant, represented by Timothy W. Cook, Cooley LLP. UNITED ROAD: "Taylor" Suit Remanded to Kern County Superior Court ----------------------------------------------------------------- In the case, CEDRIC TAYLOR on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiff, v. UNITED ROAD SERVICES, INC., and DOES 1-100, Defendants, Case No. 1:18-cv-00330-LJO-JLT (E.D. Cal.), Judge Lawrence J. O'Neill of the U.S. District Court for the Eastern District of California granted the Plaintiff's motion to remand and denied his motion for an order awarding attorneys' fees and costs. This is a wage-and-hour class action arising out of the Plaintiff's purported employment with URS. On Feb. 1, 2017, the Plaintiff filed a complaint in the Superior Court of California, County of Kern. That complaint defined the putative class to be all persons who are employed or have been employed by Defendants in the State of California as hourly, Non-Exempt truck workers, industrial truck workers, industrial truck drivers, industrial vehicle drivers, industrial workers, and/or other similar job designations and titles during the period of the relevant statute of limitations. The Defendant filed its answer on June 6, 2017. Pending at the time that the Plaintiff filed his case was Brent Hooper, et al. v. URS Midwest, Inc. d/b/a United Road Services, Inc., Lead Case No. CIVDS1607489, Superior Court for the State of California, County of San Bernardino. On July 10, 2017, the court granted final approval of the class settlement in Hooper. The settlement class was defined to be all individuals who were employed by URS in the position of California-domiciled Car Hauler employee in any pay period during the period from May 13, 2012 through Jan. 30, 2017. The Plaintiff served discovery in mid-June, including requests for production of documents, interrogatories, and deposition notices. The Defendant resisted, arguing that the Plaintiff and the putative class were not employees of the Defendant and that their claims were covered by the class settlement in Hooper. It was at this time, in mid-July, that the Plaintiff first learned of the Hooper action. Because the Defendant did not consider him to be an employee, he did not receive notice or opt-out rights. The counsel for the Plaintiff and the Defendant engaged in a number of communications that Plaintiff now claims served to put the Defendant on notice of the class that the Plaintiff sought to represent. On Nov. 6, 2017, the Defendant moved for judgment on the pleadings, arguing that the Plaintiff's claims were covered by the Hooper settlement. The court granted the Defendant's motion on Dec. 5, 2017, and permitted the Plaintiff to file an amended complaint, which he did on Feb. 5, 2018. The Plaintiff seeks to represent a class of drivers who were not directly employed by URS but drove for third-party entities that made pickups or deliveries for URS customers, defined as all persons who are employed or have been employed by the Defendant in the State of California as all non-exempt drivers, car- haulers, fleet drivers, co-drivers or similar job designations who did not contract directly with but were dispatched by URS to perform pickup and delivery services for its customers or any related entity during the time period of Feb. 1, 2013, to the present. Before the Court is the Plaintiff's motion to remand and for an order awarding attorneys' fees and costs. On March 7, 2018, URS removed the case to the Court pursuant to the Class Action Fairness Act ("CAFA"). On April 6, 2018, the Plaintiff moved to remand the case to state court. The Defendant opposed, and the Plaintiff filed a reply. Judge O'Neill does not find it reasonable to assume that every driver worked every possible week during the entirety of the class period. Without any information about why this is a reasonable assumption, he is not persuaded that it is proper to assume that any class member worked every possible week during the period at issue and cannot accept for purposes of calculating the amount in controversy that this is a reasonable assumption for every class member. The Judge further finds that the Defendant has offered little to support the rate it has chosen to serve as the anchor of its calculations supporting its contention that the amount in controversy exceeds the jurisdictional threshold. A good-faith estimate relying on supported, reasonable assumptions can serve to meet the burden for removal. However, a defendant must set forth the underlying facts supporting its assertion that the amount in controversy exceeds the statutory minimum. He finds that the Defendant has not done so here. Because the Judge finds that the Defendant has not established by a preponderance of the evidence that the underlying amount in controversy on which any 25% fee would be based is at least $4 million, he says he needs not determine (1) whether unaccrued attorneys' fees may be considered for jurisdictional purposes or (2) whether the Defendant's estimate of the potential attorneys' fees here is supported by a preponderance of the evidence. Finally, the Judge finds that the Defendant had an objectively reasonable basis for removal. He agrees that none of the seven triggering events that the Plaintiff cites did in fact start the 30-day clock to remove. In addition, the Defendant is correct that if it can demonstrate by a preponderance of the evidence that more than $5 million is in controversy, then it could establish federal jurisdiction under CAFA, and it did put forward appropriate evidence in support of removal. That the Defendant failed to carry its burden here does not mean that it lacked an objectively reasonable basis to remove. He finds that even though it did not meet its burden, the Defendant's removal was not objectively unreasonable and that the parties therefore should bear their own costs and fees. Accordingly, the Plaintiff's request for costs and fees will be denied. For these reasons, Judge O'Neill granted the Plaintiff's motion to remand and denied the Plaintiff's request for attorneys' fees and costs. He directed the Clerk of the Court to serve a copy of the order on the Kern County Superior Court; and to close the case, as the matter has been remanded and is returned to the jurisdiction of the Kern County Superior Court. A full-text copy of the Court's May 29, 2018 Memorandum Decision and Order is available at https://is.gd/kh4CZC from Leagle.com. Cedric Taylor, on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiff, represented by David Thomas Mara -- dmara@turleylawfirm.com -- The Turley & Mara Law Firm, APLC, Jamie Kathryn Serb -- jserb@turleylawfirm.com -- Turley & Mara Law Firm, APLC, Tony Roberts -- troberts@turleylawfirm.com -- Turley & Mara Law Firm, APLC & William Turley -- bturley@turleylawfirm.com -- Turley & Mara Law Firm, APLC. United Road Services, Inc., Defendant, represented by David M. Krueger -- dkrueger@beneschlaw.com -- Benesch Friedlander Coplan & Aronoff, LLP, pro hac vice, Michael A. Kaia -- mkaia@youngwooldridge.com -- Young Wooldridge & Jerry Wayne Pearson, Jr. -- jpearson@youngwooldridge.com -- Young Wooldridge. UNITED SATES: HHS Secretary Faces Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Alex Azar, Secretary of U.S. Department of Health and Human Services. The case is captioned as LUCAS R., by his next friend MADELYN R.; DANIELA MARISOL T., by her next friend KATHERINE L.; MIGUEL ANGEL S., by his next friend GERARDO S.; GABRIELA N., by her next friend ISAAC N.; JAIME D., by his next friend REYNA D.; SAN FERNANDO VALLEY REFUGEE CHILDREN CENTER, INC.; UNACCOMPANIED CENTRAL AMERICAN REFUGEE EMPOWERMENT, individually and on behalf of all others similarly situated, Plaintiffs v. ALEX AZAR, Secretary of U.S. Department of Health and Human Services; E. SCOTT LLOYD, Director, Office of Refugee Resettlement of the U.S. Department of Health & Human Services, Defendants, Case No. 2:18- cv-05741-DMG-PLA (C.D. Cal., June 29, 2018). According to the complaint, the action against the Defendants is for injunctive relief, declaratory relief, and nominal damages, challenging certain unlawful policies and practices of Defendant Office of Refugee Resettlement ("ORR"), a subordinate entity within the U.S. Department of Health and Human Services ("HHS"). These policies and practices are causing grave harm to children detained for alleged civil violations of the Immigration and Nationality Act. The Plaintiffs alleged that the ORR is responsible for the placement, care, custody and release of "unaccompanied alien children." The Plaintiffs are immigrant and asylum-seeking children detained for alleged civil violations of the Immigration and Nationality Act and are members of the class protected under the settlement in Flores, v. Sessions, No. 85-cv- 4544-DMG (AGRx) (C.D. Cal.). The United States Department of Health and Human Services (HHS), also known as the Health Department, is a cabinet-level department of the U.S. federal government with the goal of protecting the health of all Americans and providing essential human services. [BN] The Plaintiffs are represented by: Carlos Holguin, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693, ext. 309 Facsimile: (213) 386-9484 E-mail: email: crholguin@centerforhumanrights.org UNITED STATES: Bid to Monitor Review in "Pigford" Denied -------------------------------------------------------- The United States District Court, District of Columbia, granted Defendant's Motion to Dismiss the petition for monitor review of Maurice McGinnis's claim in the cases captioned TIMOTHY PIGFORD, et al., Plaintiffs, v. SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant; and CECIL BREWINGTON, et al., Plaintiffs, v. SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant, Civil Action Nos. 97-1978 (PLF), 98-1693 (PLF) (D.D.C.). African-American farmers filed a class action lawsuit against the United States Department of Agriculture (USDA) alleging that they had been denied access to federal farm credit programs administered by the Department because of their race. The parties settled, and the Court entered a consent decree setting forth the parties' settlement agreement. For class members who chose Track A, a third-party neutral adjudicator determined whether they had met a minimal burden of proof and, if so, awarded them $50,000 in monetary damages. For class members who instead opted for Track B, a third-party neutral arbitrator determined whether they had proven their claims by the more demanding preponderance of the evidence standard in a one-day mini-trial and, if so, awarded actual damages without a cap. The Initial Proceedings Under Track A Mr. McGinnis completed his initial claim form in August 1999 and opted to pursue his claim under Track A, although his claim form suggested that he harbored some confusion or indecision about that choice. Shortly thereafter, Mr. McGinnis sought to move his claim from Track A to Track B. After a long-running series of errors and miscommunications, his requests were ignored or denied for over a decade and his claim proceeded under Track A. Mr. McGinnis eventually prevailed under Track A, but never cashed the $50,000 award check. The Proceedings Under Track B On May 29, 2015, after the D.C. Circuit had issued its mandate, the arbitrator, Michael Lewis, issued a formal hearing notice adopting the Track B schedule by which the parties had agreed to proceed. In accordance with the arbitrator's formal hearing notice, both Mr. McGinnis and the government, through their counsel, timely submitted their lists of witnesses and exhibits. On December 13, 2016, the arbitrator issued his decision granting the government's motion for judgment as a matter of law and dismissing Mr. McGinnis's Track B claim. The arbitrator explained that Mr. McGinnis had not timely introduced any evidence in support of his claim aside from the June 30, 2015, filing of his witness and exhibit lists. And because Mr. McGinnis had submitted so little evidence in support of his claim, the arbitrator determined that Mr. McGinnis had neither demonstrated by a preponderance of the evidence that the USDA had discriminated against him, nor established any damages. The Petition for Monitor Review of the Track B Proceedings and Subsequent Motion to Dismiss The petition requests that the monitor review the Track B arbitration of Mr. McGinnis's claim and, based on a clear and manifest error resulting in a fundamental miscarriage of justice, direct the arbitrator to re-examine his decision granting the government's motion for judgment as a matter of law. The petition does not dispute that Mr. McGinnis repeatedly failed to meet deadlines and, as a result, did not submit sufficient evidence to prove his claim by a preponderance of the evidence. Rather, the petition asserts that these failures resulted from Mr. McGinnis's diminished mental capacity and deteriorating ability to assist his counsel, issues which assertedly arose due to the stressful and long-running nature of the case. The government filed the instant motion to dismiss the petition for monitor review on July 28, 2017. In the motion, the government argues that the Court should dismiss the petition because the monitor lacks authority to grant the requested relief. The government also emphasizes that Mr. McGinnis did not proceed pro se, but was represented by counsel for the duration of the Track B process. Yet counsel did not raise the issue of Mr. McGinnis's competence at any time prior to submitting the petition for monitor review. The opposition to the motion to dismiss largely restates the arguments advanced in the petition for monitor review, at times even doing so verbatim. The opposition argues that Mr. McGinnis's diminished capacity was evident to all involved in the process, explaining that Mr. McGinnis's May 10, 2016, letter made obvious that Mr. McGinnis had no grasp on the process and a misapprehension that his prior victories in the case had brought him to the award stage at which he should have been paid. Interpretation and Enforcement Authority The plain language of the consent decree makes clear that decisions of the arbitrator are final and monitor review is appropriate only in limited circumstances. In turn, the monitor may only direct the arbitrator to re-examine a claim where the Monitor determines that a clear and manifest error has occurred in the arbitration of the claim and has resulted or is likely to result in a fundamental miscarriage of justice. Here, monitor review of the petition would be futile because it cannot be demonstrated that a clear and manifest error has resulted or is likely to result in a fundamental miscarriage of justice. This is because the consent decree and order of reference explicitly limit the monitor, in determining whether this standard has been met, to the record before the arbitrator. Were the Court to direct the monitor to review the petition, she would not be permitted to consider any of the new evidence now presented in support of Mr. McGinnis's incompetence claim. Admittedly, counsel has identified some evidence which was before the arbitrator namely, Mr. McGinnis's letter dated May 10, 2016, and his general unwillingness to release the expert report and prosecute his claim that would have indicated to the arbitrator that Mr. McGinnis was both frustrated with the handling of his claim and possibly confused about its status. But this would not necessarily lead one to infer that Mr. McGinnis was mentally incompetent. More importantly, it does not explain why his counsel did not raise the issue of competence with Mr. Lewis at any point during the arbitration process. To the contrary, Mr. Shoreman has not proffered any credible reason why he could not have presented and preserved the issue of Mr. McGinnis's mental deterioration or incompetence in the record before the arbitrator. As a result of Mr. Shoreman's failures to do so, there is simply insufficient evidence in the relevant record of Mr. McGinnis's alleged mental incapacity to support a finding by the monitor that clear and manifest error has resulted or is likely to result in a fundamental miscarriage of justice. And the briefings do not identify any other clear and manifest error that undermined the Track B proceeding. In light of the numerous continuances and extensions consented to by the government and granted by the arbitrator, it certainly does not appear that the deadlines were strictly applied to Mr. McGinnis or that the arbitrator was anything other than appropriately accommodating under the circumstances presented. Because Mr. McGinnis is unable to demonstrate a clear and manifest error" in the arbitration record and because the consent decree explicitly bars any re-set of the Track B deadlines, monitor review of the petition would be futile. Thus, the Court declines to exercise its discretion under the wind-down stipulation to direct the monitor to review the petition. Rule 60(b)(5) Modification Authority Although the parties did not brief the matter, the Court further notes that Mr. McGinnis is not entitled to modification of the consent decree under Rule 60(b)(5), despite the questionable conduct of his counsel. In reaching this conclusion, the Court notes its discomfort in applying this standard where, from the record now before the Court, it appears Mr. McGinnis may be mentally incompetent and may not have had or currently have the capacity to supervise his agent. In fact, as of April 4, 2017, the state of Mississippi determined that Mr. McGinnis is no longer competent to manage his financial affairs because of mental infirmity and appointed a conservator as a result. Yet Mr. Shoreman failed to raise the issue of mental competency or otherwise advocate for his client's interests during the Track B proceeding, despite his ongoing professional and ethical obligations as counsel to do so. Indeed, after January 8, 2016, it does not appear that Mr. Shoreman ever again even attempted to advocate for his client as filing deadline after filing deadline passed. Nor did Mr. Shoreman ever raise the issue of his client's competency. And although Mr. McGinnis apparently refused to authorize Mr. Shoreman to release the prepared expert report, Mr. Shoreman has never explained why he failed to proffer any direct testimony, take any discovery, or submit any pretrial brief on his client's behalf. In fact, Mr. Shoreman does not appear to have done anything to advance his client's interests in this case from the time the arbitrator issued the formal revised hearing notice on January 21, 2016, until Mr. Shoreman submitted a haphazard collection of documents to the arbitrator on June 30, 2016, in lieu of the legal brief that was due that day. A full-text copy of the District Court's May 31, 2017 Opinion is available at https://tinyurl.com/yavpmpoa from Leagle.com. TIMOTHY C. PIGFORD, Plaintiff, represented by Anthony Herman -- aherman@cov.com -- COVINGTON & BURLING LLP, Charles Jerome Ware - - charlesjeromeware@msn.com -- CHARLES JEROME WARE, P.A., David A. Branch -- info@dbranchlaw.com -- LAW OFFICES OF DAVID A. BRANCH & ASSOCIATES, PLLC, Faya R. Toure -- fayarose@gmail.com -- Jacob A. Stein -- jstein@steinmitchell.com -- STEIN, MITCHELL & MUSE, L.L.P., Richard Talbot Seymour -- rick@rickseymourlaw.net - - LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Barbara Kim Kagan - - bkagan@steptoe.com -- STEPTOE & JOHNSON, LLP & Joshua A. Doan, U.S. DEPARTMENT OF JUSTICE Natural Resources Section. SONNY PERDUE, Secretary, United States Department of Agriculture, Defendant, represented by Andrew Marshall Bernie, U.S. DEPARTMENT OF JUSTICE Civil Division & Elbert Lin, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL. UNIVERSITY OF ROCHESTER: D'Amore Sues Over Fund Mismanagement ------------------------------------------------------------- Christopher D'Amore, individually and on behalf a class of participants in the University of Rochester Retirement Program, Plaintiff, v. University of Rochester, Defendant, Case No. 18-cv- 06357 (W.D. N.Y., May 11, 2018), seeks to recover their retirement plan losses, accounting of missed out incomes, attorneys' fees and costs under the common fund doctrine, payment of interest and other equitable or remedial relief resulting from breach of fiduciary duties and in violation of the Employee Retirement Income Security Act of 1974. Christopher D'Amore was a participant in the University of Rochester Retirement Program from November 1996 to January 2017 with a substantial portion of his life savings in his Plan account. Plan participants have allegedly paid an estimated $72 million in recordkeeping, distribution and mortality risk fees that are grossly excessive. [BN] Plaintiff is represented by: Benjamin J. Sweet, Esq. Edwin J. Kilpela, Jr., Esq. Kevin Abramowicz, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 Email: bsweet@carlsonlynch.com ekilpela@carlsonlynch.com kabramowicz@carlsonlynch.com VITAMIN SHOPPE: Ct. Strikes Nationwide Class Claims in "Walters" ---------------------------------------------------------------- In the case, LEE WALTERS, M.D., Plaintiff, v. VITAMIN SHOPPE INDUSTRIES, INC. Defendant, Case No. 3:14-CV-01173-PK (D. Or.), Judge Anna J. Brown of the U.S. District Court for the District of Oregon adopted Magistrate Judge Paul Papak's Findings and Recommendation, and, accordingly, granted in part and denied in part the Defendant's Motion to Dismiss and Strike Nationwide Class Claims and Allegations. Magistrate Judge Papak issued Findings and Recommendation on May 8, 2018, in which he recommends the Court grants in part and denies in part the Defendant's Motion to Dismiss and Strike. The matter is now before the Court pursuant to 28 U.S.C. Section 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). Because no objections to the Magistrate Judge's Findings and Recommendation were timely filed, Judge Brown is relieved of her obligation to review the record de novo. Having reviewed the legal principles de novo, she does not find any error. She adopted the Magistrate Judge's Findings and Recommendation, and, accordingly, granted in part and denied in part the Defendant's Motion as follows: She granted without prejudice the Defendant's Motion to Strike the Plaintiff's nationwide class- action allegations, and denied the Defendant's Motion to Dismiss the Plaintiff's claim for prospective injunctive relief. The Judge returned the matter to the Magistrate Judge for further handling. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/M17hjE from Leagle.com. Lee Walters, MD, an Oregon resident, Plaintiff, represented by Brady H. Mertz -- brady@bradymertz.com -- Brady Mertz, PC, Justin P. Karczag -- Justin@KarczagandAssociates.com -- Karczag and Associates PC, pro hac vice, Robert A. Curtis, Foley Bezek Behle & Curtis, LLP, pro hac vice & Rick Klingbeil -- rick@klingbeil- law.com -- Rick Klingbeil, PC. Vitamin Shoppe Industries, Inc., a Delaware corporation, Defendant, represented by Robert L. Meyerhoff, Venable LLP, pro hac vice, Angel A. Garganta -- aagarganta@Venable.com -- Venable LLP & Chad M. Colton -- ChadColton@MarkowitzHerbold.com -- Markowitz Herbold PC. VMOC LLC: "Fernandes" Labor Suit to Recover Unpaid Overtime ----------------------------------------------------------- Stanley J. Fernandes, and All Others Similarly Situated Plaintiffs, v. VMOC LLC, VMLH LLC, Jan Ahmed Ahmad and Barkat Ali, Defendants, Case No. 18-cv-01544 (S.D. Tex., May 13, 2018), seeks equitable relief, compensatory and liquidated damages, attorney's fees, all costs of the action and post-judgment interest for willful failure to pay overtime wages under the Fair Labor Standards Act. Fernandes was an employee who worked as a clerk at a Valero- branded gas station and convenience store doing business as "B&J Food Mart" located at 12672 Veterans Memorial Drive, Houston, Texas 77014 owned and operated by the Defendants. Fernandes typically worked from 12:00 p.m. until 12:00 a.m., seven days a week, without overtime pay, the complaint asserts. [BN] Plaintiff is represented by: Salar Ali Ahmed, Esq. ALI S. AHMED, P.C. One Arena Place 7322 Southwest Frwy., Suite 1920 Houston, TX 77074 Telephone: (713) 223-1300 Facsimile: (713) 255-0013 Email: aahmedlaw@gmail.com WALGREEN CO: Removes "Ramirez" Suit to N.D. California ------------------------------------------------------ The Defendant in the case of Johnny Ramirez, individually and on behalf of all others similarly situated, Plaintiff v. Walgreen Co., Defendant, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Monterey (Case No. 18CV001963) to the U.S. District Court for the Northern District of California on June 29, 2018, and assigned Case No. 5:18-cv-03921-NC (N.D. Cal., June 29, 2018). The case is assigned to Judge Nathanael M. Cousins. Walgreen Co. owns and operates drugstores in the United States. Walgreen Co. was formerly known as C. R. Walgreen and Co. and changed its name to Walgreen Co. in April 1916. The company was founded in 1901 and is based in Deerfield, Illinois. Walgreen Co. operates as a subsidiary of Walgreens Boots Alliance, Inc. [BN] The Plaintiff is represented by: Larry W Lee, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com - and - Dennis Sangwon Hyun, Esq. HYUN LEGAL APC 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: dhyun@hyunlegal.com - and - William Lucas Marder, Esq. POLARIS LAW GROUP, LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 E-mail: bill@polarislawgroup.com The Defendant is represented by: Michael Edward Olsen, Jr., Esq. Allison Clare Eckstrom, Esq. BRYAN CAVE LEIGHTON PAISNER LLP 3161 Michelson Drive, Suite 1500 Irvine, CA 92612 Telephone: (949) 223-7000 Facsimile: (949) 223-7100 E-mail: michael.olsen@bclplaw.com Allison.Eckstrom@bclplaw.com WASHINGTON AND JANE: Court Narrows Claims in "Dixon" Suit --------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, denied the Smith Defendants' Motion to Dismiss the case captioned CYNTHIA DIXON, Plaintiff, v. THE WASHINGTON AND JANE SMITH COMMUNITY -- BEVERLY d/b/a SMITH SENIOR LIVING, SMITH CROSSING, and SMITH VILLAGE, KEVIN McGEE, MARTI JATIS, and KRONOS, INC., Defendants, Case No. 17 C 8033 (N.D. Ill.). Dixon asserts claims for negligence and violation of Illinois's Biometric Information Privacy Act (BIPA) arising from Smith's requirement that its employees clock in and out of work by scanning their fingerprints onto a biometric timekeeping device (Kronos is the third-party supplier of the fingerprint scanners used by Smith). Dixon also has brought claims against Smith and two individuals for violating the Illinois Minimum Wage Law (IMWL) and the Illinois Wage Payment and Collection Act (IWPCA) and for retaliatory discharge. The Smith defendants have moved to dismiss Smith Village and Smith Crossing as defendants on the ground that Dixon has pled insufficient facts to support any finding of liability against either entity. Dixon has not alleged that she ever worked for Smith Village or Smith Crossing, nor has she alleged other facts that would support a finding of joint liability against either entity on any of her claims. BIPA claim (count 1) Smith argue that Dixon has not alleged an actual injury sufficient to confer a right of action under BIPA. They argue that because BIPA's right of action provision limits the right to sue to persons aggrieved by a violation of Act, the statute requires plaintiffs to establish some sort of actual harm beyond a bare procedural violation or a purely technical statutory violation. In this particular case, the question of whether Dixon has alleged an injury sufficient to render her a "person aggrieved" under BIPA overlaps significantly with the Article III standing/injury in fact question, so the Court will be brief. In addition to alleging procedural violations related to BIPA's notice and consent provisions, Dixon has alleged that the defendants violated her right to privacy in and control over her personal biometric data. Dixon also has specifically alleged that Smith fails to inform its employees that it discloses employees' fingerprint data to an out-of-state third-party vendor, Kronos. It is reasonable to infer from the allegations in the complaint that Kronos obtained Dixon's biometric data without her knowledge or consent. The Court has already concluded that BIPA established a right to privacy in such information and that obtaining or disclosing a person's biometric data without her consent or knowledge necessarily infringes on the right to privacy in that data. Even though this may not be a tangible or pecuniary harm, it is an actual and concrete harm that stems directly from the defendants' alleged violations of BIPA. That makes it sufficient not only for standing purposes, but also for purposes of asserting a claim under BIPA. Because Dixon has alleged an actual and concrete injury to her right to privacy in her biometric data stemming from the defendants' alleged BIPA violations, the Court concludes that she is a person aggrieved with a right of action under the statute. Accordingly, the Court denies the defendants' motion to dismiss Dixon's BIPA claim and declines to strike Dixon's request for liquidated damages under BIPA at this early stage in the proceedings. Negligence claim (count 2) The Defendants contend that Dixon also failed to plead any breach of a legal duty or an actual injury proximately caused by such a breach, both of which are necessary elements of a negligence claim. Under Illinois law, to succeed in a claim for negligence, a plaintiff must establish the existence of a duty, a breach of the duty, and an injury to the plaintiff that was proximately caused by the breach. In addition to alleging that the defendants either disclosed her biometric data without consent, Dixon also has alleged that the defendants breached their duty under BIPA to exercise reasonable care in the collection and use of her biometric data by failing to implement reasonable procedural safeguards around the collection and use of her biometric identifiers and biometric information. She has alleged that this breach proximately caused a violation of her privacy rights. The Court has already concluded that the privacy injury stemming from the alleged BIPA violations is a concrete and actual injury.7 Dixon therefore has alleged all the elements of a common law negligence claim: the existence of a statutorily-created duty, a breach of that duty, and an actual injury that was proximately caused by that breach. She need not do more than that to survive a motion to dismiss. Employment claims (counts 3-6) The Smith defendants also have moved for the dismissal of all of Dixon's employment-related claims. Claims against individual defendants The Smith defendants contend that Dixon's claims against the individual defendants, Kevin McGee and Marti Jatis, should be dismissed because Dixon has not alleged facts sufficient to state a plausible claim against them. Dixon's complaint makes no specific factual allegations with respect to McGee. Aside from referring to Jatis as one of her supervisors and alleging that Jatis was one of the individuals she questioned about the classification of the Environmental Services Manager position as exempt from overtime requirements, Dixon does not allege facts from which Jatis's role in the alleged violations may be determined. Because the Court finds that Dixon's conclusory allegations that McGee and Jatis are employers within the meaning of the IMWL and the IWPCA are insufficient to support a plausible claim to relief against them and because Dixon has not made any substantive argument regarding why this Court should not dismiss her claims against McGee and Jatis the Court grants the motion to dismiss counts 3 through 5 of the complaint as against McGee and Jatis, without prejudice to filing of an amended complaint. IMWL claims (counts 3 and 4) Dixon's complaint states that while she worked for Smith, she was an hourly employee earning approximately $16.44 per hour. Although Dixon alleges that she was charged with Environmental Services Manager duties beginning around April 2017, she specifically states twice that her title and pay did not change as a result of these additional duties. It is more than reasonable to infer from these allegations that Smith continued to pay Dixon by the hour, rather than on a salary basis, from April 2017 until her termination in September of the same year. Because Smith makes no other argument in support of its motion to dismiss Dixon's IMWL claims, the Court denies the motion with respect to counts 3 and 4 against Smith. IWPCA claim (count 5) Smith further contends that Dixon has failed to state a claim for relief under the Illinois Wage Payment and Collection Act because she has not sufficiently alleged an employment contract or agreement to pay her ongoing, work-related cell phone expenses. Dixon has alleged that Smith's failure to reimburse her for these charges pursuant to the terms of their agreement constitutes a violation of the IWPCA. These allegations are sufficient to state a plausible claim to relief under the IWPCA. Smith cites no authority for the proposition that Dixon's failure to specifically allege that Castro and August had authority to enter into an employment agreement on Smith's behalf or that the agreement was to reimburse her for future cell phone expenses warrants dismissal of her claim. The Court therefore denies the motion to dismiss Dixon's IWPCA claim against Smith. Retaliatory discharge claim (count 6) To prevail on a claim for retaliatory discharge, the plaintiff must show (1) that she was discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy. Dixon has alleged only that, when offered the Environmental Services Manager position, she sent an e-mail to her supervisors, Castro and Jatis, challenging whether the offered salary complied with the salary threshold established by the federal government to properly classify employees as exempt. The Court does not believe that this e-mail, without more, could be considered whistleblowing activity. In light of Illinois courts' narrow interpretation of the retaliatory discharge tort and Dixon's failure to respond to Smith's motion to dismiss this claim, the Court agrees that Dixon's retaliatory discharge claim should be dismissed. The Court grants the Smith defendants' motion to dismiss in part and denies it in part. A full-text copy of the District Court's May 31, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/y9wwr492 from Leagle.com. Cynthia Dixon, individually and on behalf of all others similarly situated,, Plaintiff, represented by Ryan F. Stephan -- rstephan@stephanzouras.com -- Stephan, Zouras, LLP, Haley Renee Jenkins -- hjenkins@stephanzouras.com -- Stephan Zouras, Llp & James B. Zouras -- jzouras@stephanzouras.com -- Stephan Zouras, LLP. The Washington and Jane Smith Community-Beverly, an Illinois Not- For-Profit Corporation, Kevin McGee & Marti Jatis, Defendants, represented by Kevin Michael O'Hagan -- kohagan@ohaganmeyer.com - - O'Hagan Meyer, LLC, Jamie L. Filipovic -- jfilipovic@ohaganmeyer.com -- O'Hagan Meyer, LLC & Kristen Ann Cemate -- kcemate@ohaganmeyer.com -- O'Hagan Meyer, LLC. WESTERN REFINING: Removes "Dilworth" Suit to C.D. California ------------------------------------------------------------ The Defendants in the case of AMIA DILWORTH, individually and on behalf of all others similarly situated, Plaintiff v. WESTERN REFINING RETAIL, LLC; ANDEAVOR; CONICO BUELLTON, LLC; CONICO HARBOR, LLC; CONICO LOMITA, LLC; CONICO MACVALLEY, LLC; CONICO ROSE, LLC ; CONICO SANTA MONICA, LLC; CONICO STATE LLC; CONICO VICTORY, LLC; CONICO WESTLAKE, LLC; CONICO WHOLESALE, LLC; CONICO YOSEMITE, LLC; CONICO CORO, INC.; CONICO RORO, INC.; CONICO TORO, INC.; PETER HONG; DOES 1-50, INCLUSIVE, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Los Angeles (Case No. BC702261) to the U.S. District Court for the Central District of California on June 29, 2018, and assigned Case No. 2:18-cv-05768-VAP-SK (C.D. Cal., June 29, 2018). The case is assigned to Judge Virginia A. Phillips and referred to Magistrate Judge Steve Kim. Western Refining, Inc. operates as an independent crude oil refiner and marketer of refined products. Western Refining, Inc. was founded in 1993 and is headquartered in El Paso, Texas. As of June 1, 2017, Western Refining, Inc. operates as a subsidiary of Andeavor. [BN] The Plaintiff is represented by: David G Spivak, Esq. Sehyung Park, Esq. SPIVAK LAW FIRM 16530 Ventura Boulevard Suite 312 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 E-mail: david@spivaklaw.com logan@spivaklaw.com - and - Walter L Haines, Esq. UNITED EMPLOYEES LAW GROUP PC 5500 Bolsa Avenue Suite 201 Huntington Beach, CA 92649 Telephone: (562) 256-1047 Facsimile: (562) 256-1006 E-mail: walter@whaines.com The Defendants are represented by: Duwayne Andre Carr, Esq. Mary D Manesis, Esq. Timothy M Rusche, Esq. SEYFARTH SHAW LLP 601 South Figueroa Street Suite 3300 Los Angeles, CA 90017 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 E-mail: dacarr@seyfarth.com mmanesis@seyfarth.com trusche@seyfarth.com - and - Michael W Kopp, Esq. Seyfarth Shaw LLP, Esq. 400 Capitol Mall Ste 2350 Sacramento, CA 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 E-mail: mkopp@seyfarth.com - and - William J Dritsas, Esq. Seyfarth Shaw LLP 560 Mission Street 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: wdritsas@seyfarth.com WIDEOPENWEST INC: Faces "Kirkland" Suit over IPO Disclosures ------------------------------------------------------------ JEFF KIRKLAND, individually and on behalf of all others similarly situated, Plaintiff v. WIDEOPENWEST, INC.; STEVEN COCHRAN; RICHARD E. FISH, JR.; DAVID BURGSTAHLER; BRIAN CASSIDY; DANIEL KILPATRICK; JEFFREY MARCUS PHIL SESKIN; JOSHUA TAMAROFF; AVISTA CAPITAL PARTNERS; CRESTVIEW PARTNERS; UBS SECURITIES LLC; CREDIT SUISSE SECURITIES (USA) LLC; RBC CAPITAL MARKETS, LLC; SUNTRUST ROBINSON HUMPHREY, INC.; EVERCORE GROUP L.L.C.; MACQUARIE CAPITAL (USA) INC.; LIONTREE ADVISORS LLC; AND RAYMOND JAMES & ASSOCIATES, INC., Defendants, Case No. 653248/2018 (N.Y. Sup., New York Cty., June 27, 2018) is an action against the Defendants' Initial Public Offering commencing May 25, 2017 and closed May 31, 2017, where the Defendants negligently issued untrue statements of material facts and omitted material facts from the Registration Statement and incorporated Prospectus that the Defendants filed with the SEC in support of the Offering, in violation of the Securities Act of 1933. According to the complaint, between May 25, 2017 and May 31, 2017, WideOpenWest conduct its IPO in which it offered 20,970,589 shares for sale at a price of $17 per share, totaling more than $356 million before deductions for the Underwriters' discount, commissions and estimated expenses. The shares of 18,235,295 were initially offered plus an additional option held by the Underwriters for an over-allotment of 2,735,294 which was fully exercised. On May 31, 2017, WideOpenWest announced the closing of the IPO. Upon the close of the Offering and accounting for the underwriter discount commission of $0.8925 per share, WideOpenWest raised proceeds of $337.8 millioin. On August 1, 2017, WideOpenWest announced its plan to sell its Chicago fiber network to a subsidiary of Verizon for $225 million in cash. The transaction was completed in December 2017. On March 14, 2018, WideOpenWest issued its financial results for the fourth quarter and fiscal year 2017, each ended December 31, 2017, announcing a full year decline in total revenue of 4%. WideOpenWest also announced that it was required to record a $147.4 million impairment to indefinite-lived intangible assets and goodwill, purportedly primarily to WideOpenWest's stock price decline. On May 11, 2018, WideOpenWest announced that for the quarter ending March 31, 2018, it recorded a non-cash impairment charge of $256.4 million. In response to these disclosures, WideOpenWest's stock plunged more than 23% on March 15, 2018 to a closing price of $7.04, nearly 59% below the IPO price. WideOpenWest's common stock continues to trade at depressed levels, trading at a closing price of $9.44 as of the date of the complaint, representing a loss of 44% from the IPO price. As a result of the materially misleading Offering Materials, the price of WideOpenWest's common stock was artificially inflated at the time of the Offering. WideOpenWest, Inc. (WOW) operates as a cable service provider. The Company offers Internet, cloud and cable television, and voice over IP-based telephony services. WOW serves customers in the United States. [BN] The Plaintiff is represented by: Shannon L. Hopkins, Esq. Sebastiano Tornatore, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: shopkins@zlk.com stornatore@zlk.com WILLIAMS-SONOMA INC: Cal. App. Affirms Dismissal of "Shine" Suit ---------------------------------------------------------------- Judge Norman L. Epstein of the Court of Appeals of California for the Second District, Division Four, affirmed the trial court's order of dismissal of the case, HARLEY SHINE, Plaintiff and Appellant, v. WILLIAMS-SONOMA, INC., et al., Defendants and Respondents, Case No. B277513 (Cal. App.), following the sustaining of a demurrer without leave to amend. In a previous wage and hour class action lawsuit, Morales v. Williams-Sonoma, Inc. et al. (Super. Ct. S.F. County, 2015, No. CGC532344), plaintiff Elizabeth Morales sued the same Defendants on behalf of all current and former California-based hourly-paid or non-exempt individuals employed by Williams-Sonoma Stores, Inc. at a Pottery Barn, Pottery Barn Kids, Williams-Sonoma, or West Elm store in California since June 24, 2009. The operative first amended complaint in Morales alleged causes of action for overtime pay, meal period premiums, rest period premiums , minimum wages, final wages, payment of all wages earned, failure to provide proper wage statements, failure to keep proper payroll records, failure to reimburse business expenses, relief under the Labor Code Private Attorneys General Act of 2004, and relief under the Unfair Competition Law ("UCL"). The Morales class action was resolved by a settlement agreement. The superior court approved the agreement and entered a stipulated order of dismissal on Sept. 23, 2015. Mr. Shine, who worked at a Pottery Barn retail store in Beverly Hills from January to March 2013, was a member of the Morales settlement class and received a share of the settlement proceeds. A short while later, Mr. Shine filed the present putative class action complaint against Williams-Sonoma. He brought the action on behalf of himself and all non-exempt employees of Williams- Sonoma who worked at Williams-Sonoma, Pottery Barn, Pottery Barn Kids, West Elm, and or/Rejuvenation retail stores in California at any time from Oct. 21, 2011 up to and continuing until the time that judgment is entered in the case. The allegations in the case are based on the purported failure by Williams-Sonoma to pay the prospective class members reporting- time pay as required under Wage Order 7-2001 of the Industrial Welfare Commission. This wage order, which applies to mercantile companies, provides that for each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half of said employee's usual or scheduled day's work, the employee will be paid for half the usual or scheduled day's work, but in no event less than two hours nor more than four hours, at the employee's regular rate of pay, which will not be less than the minimum wage. Based on this alleged violation, which was the first cause of action in the complaint, Mr. Shine also alleged related claims for failure to pay all wages earned at termination (second cause of action), failure to provide accurate wage statements (third cause of action), and violation of the UCL (fourth cause of action). Williams-Sonoma demurred to the entire complaint, arguing that all the claims were based on the same theory: that Wage Order 7- 2001 requires an employer in the mercantile industry to provide reporting-time pay, a type of wage, when it asks an employee to remain available for a so-called 'on-call' shift, but then ultimately tells the employee that he or she does not need to work the shift. It raised three independent grounds to sustain the demurrer. First, by participating in the Morales settlement agreement and receiving damages for failure to pay wages due, Mr. Shine is barred under the doctrine of res judicata from bringing a second suit against the same defendants for failure to pay reporting- time pay, which also is a form of wages. Second, Williams-Sonoma requested that the court take judicial notice of employment records, which allegedly showed that Mr. Shine was not told that his on-call shift had been canceled, and because he did not suffer the injury alleged in the complaint he lacks standing to bring this action. Third, Williams-Sonoma contended the plain language of Wage Order 7-2001 requires reporting-time pay only where an employee physically reports to the job site, ready to work. It claimed that Mr. Shine's attempt to extend reporting- time pay to situations where an employee does not physically report to work exceeds what is required by law for on-call shifts. The trial court sustained the demurrer solely on res judicata grounds, and did not decide the other issues raised in the demurrer. Based on the order sustaining the demurrer without leave to amend, the court entered a judgment of dismissal with prejudice. The timely appeal followed. Mr. Shine argues the present claims are not covered by the previous settlement agreement and release because there was no bona fide dispute in Morales over reporting-time pay. Judge Epstein finds that it is undisputed that there was a bona fide disagreement on the right to reporting-time pay. Williams-Sonoma denies that reporting-time pay is owed when on-call shifts are canceled by the employer. Because the right to reporting-time pay is in dispute, reporting-time pay was not "due" within the meaning of section 206 when the Morales settlement agreement was signed. Accordingly, the limitation imposed by section 206.5 does not apply to invalidate the release. The Morales settlement agreement broadly releases any claim that could have been brought under the enumerated provisions, which necessarily includes Wage Order 7-2001. Mr. Shine alternatively argues the Morales settlement agreement includes a waiver by Williams-Sonoma of the right to assert a res judicata defense to wage claims which, like the present claim for reporting-time pay, are dependent on facts not mentioned in the Morales complaint. The Judge disagrees. He finds that the last antecedent rule provides the more accurate and natural construction of the release. The interpretation advanced by Mr. Shine contradicts the plain language of the agreement and fails to give effect to the general release contained in the opening clause of the paragraph. His assertion that application of the last antecedent rule would erroneously release even non-wage and hour claims is incorrect. The final passage limits the release to claims related to a wage and hour action. Moreover, in construing the agreement, it is assumed that the parties incorporated all applicable laws including res judicata and collateral estoppel. Because collateral estoppel applies only to claims that are related by subject matter and could have been pleaded in the first action, there is no danger that application of the last antecedent rule would release claims completely unrelated to employment claims. The Judge concludes that the demurrer was properly sustained without leave to amend on grounds of res judicata. Because he concludes that the release is clear and unambiguous, further amendment of the complaint would be pointless. He does not reach the other issues briefed by the parties, and expresses no opinion as to the merits of the complaint or Mr. Shine's standing to pursue the action. For these reasons, Judge Epstein affirmed the judgment (order of dismissal). Williams-Sonoma is entitled to its costs on appeal. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/npiQkD from Leagle.com. McNicholas & McNicholas, Patrick McNicholas and Michael J. Kent; Bridgford, Gleason & Artinian and Michael H. Artinian -- Mike.Artinian@bridgfordlaw.com; Frank Sims & Stolper and Scott H. Sims -- ssims@lawfss.com; Esner, Chang & Boyer and Holly N. Boyer -- hboyer@ecbappeal.com -- for Plaintiff and Appellant. Orrick, Herrington & Sutcliffe, Melanie L. Bostwick -- mbostwick@orrick.com -- Randall C. Smith -- randall.smith@orrick.com -- Jessica R. Perry -- jperry@orrick.com -- and Allison Riechert Giese -- agiese@orrick.com -- for Defendants and Respondents. XPO LOGISTICS: $7MM Deal in "Leung" TCPA Suit Has Final Approval ---------------------------------------------------------------- In the case, VINCENT LEUNG, on behalf of himself and all others similarly situated, Plaintiff, v. XPO LOGISTICS, INC., Defendant, Case No. 15 C 03877 (N.D. Ill.), Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois, Eastern Division, In April 2015, Leung, the named Plaintiff in the case, bought two mirrors from the IKEA store in Schaumburg, Illinois. In a rush and with two small children in tow, Leung opted to have the mirrors delivered by IKEA's next-day delivery service. Leung's wife wrote down Leung's cell phone number on a form while he watched; Leung signed and initialed the form. The next day, Leung received an automated voice message and a text message notifying him that the delivery was imminent. These messages came from Defendant XPO Logistics. The mirrors were delivered without issue. After the delivery, Leung received another call from XPO Logistics. This call used a pre-recorded or artificial voice, and asked Leung to complete a survey regarding the delivery service. Irked by the post-delivery call, Leung complained to a friend, who referred Leung to the Keogh Law firm. Keogh Law filed a lawsuit on behalf of Leung, and sought to certify a class of similarly situated consumers. The complaint alleged that XPO Logistics violated the Telephone Consumer Protection Act ("TCPA") by making calls to cell phones using an automatic telephone dialing system or an artificial or prerecorded voice without express consent. The parties engaged in extensive and, at times, intensely disputed discovery. They also engaged in three mediation sessions in front of, separately, two former federal judges (Judge Wayne Andersen and Judge James Holderman), both of Judicial Arbitration and Mediation Services, Inc. The mediation sessions involved detailed argument and briefing. After the third mediation session, the parties were able to reach an agreement. The proposed settlement agreement defines the settlement class as the parties whose cellular telephone numbers are identified in the call data produced in the litigation where XPO or its subsidiary placed a pre-recorded post-delivery survey call after May 1, 2011 relating to an IKEA delivery. The Settlement Agreement requires XPO to create a non- reversionary settlement fund of $7 million. The class members who file valid claims will receive cash payments from the fund. The Settlement provides for a robust notice plan and a streamlined claim process. Any funds that cannot be feasibly distributed to class members will be donated to a cy pres recipient, the National Consumer Law Center. The settlement agreement (with minor adjustments agreed to by the parties) is now before the Court for final approval. Leung, through his counsel, also filed a motion for attorneys' fees, costs, and a service award. The motion seeks an incentive payment of $10,000 to Leung. Leung's counsel, Keogh Law, Ltd., requests attorneys' fees of $2,333,334 (equal to one-third of the total settlement fund), plus compensation of $52,458.90 for the counsel's out-of-pocket litigation costs. The fees, costs, and incentive award would be taken out of the settlement fund. The Court held a fairness hearing on March 7, 2018. Judge Chang finds that (i) the requirements of Rule 23 are met, so the Judge certified the class for settlement purposes; (ii) the case is at a stage where the parties can appropriately value the litigation, and arrive at a fair settlement; (iii) one-third of the net fund is the appropriate fee award in the case; (iv) the requested $10,000 incentive award is also in line with the awards generally handed out in TCPA cases; and (v) the selection of NCLC as cy pres recipient is reasonable, and will tend to further the goals of the TCPA. For these reasons, Judge Chang granted the Plaintiff's motion for attorneys' fees in the amount of $2,230,559.67, plus litigation expenses of $52,458.90. He also granted the motion for a $10,000 incentive award to Leung. The Settlement Agreement is approved in its entirety, including the modifications outlined in the parties' Joint Stipulation to Modify Certain Settlement Terms. The status hearing of June 6, 2018 is reset to July 26, 2018, at 9:45 a.m., for a status on distribution of payments. A full-text copy of the Court's May 30, 2018 Memorandum Opinion and Order is available at https://is.gd/dNapYE from Leagle.com. Vincent Leung, on behalf of himself and all others similarly situated, Plaintiff, represented by Keith James Keogh, Keogh Law, Ltd., Amy L. Wells, Keogh Law, Ltd, Michael S. Hilicki, Keogh Law, LTD & Timothy J. Sostrin, Keogh Law, LTD. XPO Logistics, Inc., Defendant, represented by Edmundo Clay Marquez -- cmarquez@omm.com -- O'Melveny & Myers LLP, pro hac vice, Guadalupe Raymond Laguna -- llaguna@omm.com -- O''Melveny & Myers LLP, pro hac vice, Randall Edwards -- redwards@omm.com -- O'Melveny & Myers, Scott Michael Voelz -- svoelz@omm.com -- O'melveny & Myers Llp, pro hac vice, David Patterson Gloor -- gloorp@jbltd.com --Johnson & Bell, Ltd. & Steven Michael Shear -- shears@jbltd.com -- Johnson & Bell, Ltd. YONKERS, NY: Court Grants Bid to Dismiss "Fumarelli" Suit --------------------------------------------------------- Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted the City's motion to dismiss the case, ROBERT FUMARELLI, WILLIAM PARKER, ARTHUR RIVERA, STEPHEN RONAN, THOMAS SPAUN, and all other persons similarly situated, Plaintiffs, v. CITY OF YONKERS, Defendant, Case No. 17 CV 6922 (VB) (S.D. N.Y.). The named Plaintiffs bring the putative class action against the City for breach of contract and violations of the Americans with Disabilities Act ("ADA"), Rehabilitation Act, and New York State Human Rights Law ("NYSHRL"). Section 207-a(1) of the New York General Municipal Law ("GML") requires municipalities to pay a firefighter who is injured in the performance of his duties his "regular salary or wages" until his disability has ceased. However, when a firefighter is granted a New York State and Local Retirement System/New York State and Local Police and Fire Retirement System ("NYSLRS") disability retirement allowance, the municipality need only pay the difference between the NYSLRS retirement allowance and the amount of the firefighter's "regular salary or wages" ("207-a(2) payments"). The Plaintiffs are permanently disabled retired City firefighters who suffered line-of-duty injuries. They were certified as disabled under the NYSLRS, and were granted NYSLRS retirement allowances. As such, the City need only pay them 207-a(2) payments. Since at least 1982, the City included certain additional benefits known as check-in pay, night differential pay, and holiday pay (what the Plaintiffs describe as "full pay components") in the calculation of "regular salary and wages" when making 207-a(2) payments. But on Dec. 9, 2015, the City notified the Plaintiffs and the putative class members that it had overpaid them by including the full pay components in its calculation of "regular salary and wages." The City stated it intended to adjust future 207-a(2) payments to exclude the full pay components and to recoup any past overpayments. The City then held due process hearings at which the Plaintiffs and the putative class members objected to the adjustment and recoupment. The hearing officers recommended to the City Commissioner of Human Resources that the Plaintiffs' and the putative class members' objections be denied. The Commissioner adopted the recommendations and notified the Plaintiffs and the putative class members that it would reduce future 207-a(2) payments and recoup past overpayments to permanently disabled retired firefighters. However, the City continued to include the full pay components in the calculation of "regular salary or wages" for temporarily disabled firefighters and non-disabled retired firefighters. On March 17, 2016, Yonkers Fire Fighters, Local 628, IAFF, AFL- CIO, submitted an arbitration demand with the American Arbitration Association, alleging the City's decision to reduce 207-a(2) payments violated their collective bargaining agreement with the City. The City moved in Supreme Court, Westchester County, for an order permanently staying arbitration. The state court initially denied the City's motion, but on Oct. 17, 2016, it granted the stay after the City moved to reargue. An appeal of the state court's decision is currently pending before the Appellate Division, Second Department. Separately, on June 30, 2016, the Plaintiffs sued the City in an Article 78 proceeding in Supreme Court, Westchester County. Their Article 78 petition included eight causes of action. One of the causes of action, titled, "The City's Singling Out Permanently Disabled Retirees," alleged that the City's decision to single out permanently disabled retirees receiving benefits under GML 207-a(2) while continuing a higher benefit for injured Fire Fighters and Officers receiving benefits under GML 207-a(1) is arbitrary, illegal and constitutes an error of law. On March 10, 2017, the state court held that the City's decision to reduce the Plaintiffs' future 207-a(2) payments by deducting the full pay components was not arbitrary or capricious, but the decision to recoup past overpaid 207-a(2) payments was arbitrary and capricious, and lacked a rational basis. The court thus dismissed the Plaintiffs' petition except to the extent it found the City's decision to recoup overpaid 207-a(2) payments was arbitrary and capricious and an abuse of discretion, and enjoined the City from recouping those payments. On April 4, 2017, the Plaintiffs appealed the March 10, 2017, state court decision. That appeal also is pending before the Appellate Division, Second Department. On Aug. 1, 2017, the lower court denied the Plaintiffs' motions to reargue and renew. The Plaintiffs commenced the action on Sept. 12, 2017. The City moved to dismiss on Nov. 7, 2017, after which the Court sua sponte granted the Plaintiffs an opportunity to file an amended complaint. The Plaintiffs declined to do so. Judge Briccetti agrees with the Plaintiffs that collateral estoppel does not apply to their claims insofar as they rely on the City's decision to recoup past 207-a(2) payments. However, the Plaintiffs are collaterally estopped from asserting claims based on the City's decision to reduce future 207-a(2) payments. As the Plaintiffs specifically argued the City's decision was arbitrary and illegal because the City singled out permanently disabled retirees, the state court's holding that the City's decision to reduce the Plaintiffs' future 207-a(2) payments was not arbitrary or capricious necessarily implies rejection of the claim that that aspect of the decision was discriminatory. However, the Judge finds that the state court's holding that the City's decision to recoup past 207-a(2) payments was arbitrary and capricious and lacked a rational basis was not decided against the Plaintiffs, and therefore does not imply a rejection of their discrimination claim with regard to that aspect of the City's decision. The Plaintiffs argue collateral estoppel does not apply at all because the Plaintiffs may prove a mixed-motive disability discrimination claim. The Judge is not persuaded. He says, even if ADA mixed-motive discrimination claims are still viable after the Supreme Court's decision in Gross v. FBL Financial Services, Inc., the state court's decision necessarily rejected the Plaintiffs' argument that the City's decision to reduce their future 207-a(2) payments was discriminatory. The City argues the Plaintiffs fail to state discrimination claims under the ADA, the Rehabilitation Act, and the NYSHRL. Judge Breccetti agrees. Because the scope of the disability discrimination provisions of NYSHRL is similar to those of the ADA and Rehabilitation Act, he analyzes the claims together. He finds that the Plaintiffs have failed to allege a materially adverse change in the terms and conditions of employment. The state court enjoined the City from recouping past 207-a(2) payments, thereby preventing the City from taking adverse action. Moreover, the Plaintiffs are estopped from asserting claims based on the City's decision to reduce their future 207-a(2) payments. Thus, they fail to allege an adverse employment action. Accordingly, they fail to state discrimination claims under the ADA, the Rehabilitation Act, and the NYSHRL. Finally, the Plaintiffs also bring a state law claim for breach of contract, alleging the City deprived them of their contractual right to 207-a(2) payments with full pay components. Having dismissed all of the Plaintiffs' federal claims, there are no longer any claims remaining over which the Court has original jurisdiction. The Judge declines to exercise supplemental jurisdiction over the Plaintiffs' remaining state law claim. For these reasons, Judge Breccetti granted the motion to dismiss. The Clerk is instructed to terminate the motion and close the case. A full-text copy of the Court's May 30, 2018 Opinion and Order is available at https://is.gd/UHufmb from Leagle.com. Robert Fumarelli, Lead Plaintiff, represented by Herbert Eisenberg, Eisenberg & Schnell LLP & Julian R. Birnbaum, Eisenberg & Schnell LLP. William Parker, Arthur Rivera, Stephen Ronan & Thomas Spaun, Plaintiffs, represented by Herbert Eisenberg, Eisenberg & Schnell LLP & Julian R. Birnbaum, Eisenberg & Schnell LLP. City of Yonkers, Defendant, represented by Paul Jude Sweeney -- PSweeney@cglawoffices.com -- Coughlin & Gerhart, LLP. ZODIAC US: $952K "Cuzick" Settlement Has Partial Final Approval --------------------------------------------------------------- In the case, KYLE CUZICK, Plaintiff, v. ZODIAC U.S. SEAT SHELLS, LLC, Defendant, Case No. 16-cv-03793-HSG (N.D. Cal.), Judge Haywod S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted in part the Plaintiffs' (i) motion for final approval of the class action settlement and (ii) the motion for attorneys' fees and costs. On May 25, 2016, the Plaintiff filed this action in Alameda Superior Court, alleging that the Defendant's pay, meal, and rest break practices violated the California Labor Code, California Unfair Competition Law, and the Fair Labor Standards Act. The Plaintiff then filed the operative First Amended Complaint on June 22, 2016. The Plaintiff asserts eight causes of action: (1) failure to provide meal periods; (2) failure to provide rest breaks; (3) failure to pay hourly and overtime wages; (4) failure to provide accurate written wage statements; (5) failure to timely pay all final wages; (6) unfair and unlawful business practices; (7) failure to compensate for all hours worked; and (8) statutory penalties under the Private Attorneys General Act. The Plaintiff worked for the Defendant in an hourly wage position as a non-exempt employee from approximately November 2015 to March 2016. During this time, the Plaintiff alleges that the Defendant had a policy of requiring its employees to return to their work stations on or before the thirtieth minute of their 30-minute meal break and on or before the tenth minute of their 10-minute rest period. Moreover, the Plaintiff states that the Defendant would deduct meal break and rest periods from his and other non-exempt employees' timecards, regardless of whether the Defendant actually provided them. On the basis of these facts, the Plaintiff seeks compensatory damages, statutory penalties, restitution, attorneys' fees and costs, as well as whatever relief the Court deems just and proper. Following extensive formal discovery and with the assistance of a private mediator, the parties entered into a settlement agreement. The key terms are as: i. Class Definition: All individuals who were employed by the Defendant in California as non-exempt employees between May 25, 2012, and Oct. 11, 2017. The parties have represented that there are approximately 1,292 class members. ii. Monetary Relief: The Defendants will pay a maximum of $952,000, inclusive of: (a) payments to the participating class members; (b) the class counsel's attorneys' fees; (c) the class counsel's and the class representative's litigation costs and associated expenses, which are capped at $10,000; (d) the payment to the settlement administrator for claims administration costs; (e) enhancement payments to be made by the Defendant to Kyle Cuzick (f) payment to the California Labor Workforce Development Agency as part of the consideration for the release of all released claims; and (g) all payroll taxes. The parties have estimated that individual class members' gross recovery, before deductions for taxes, fees, and other costs, will be approximately $737. iii. Release: The class, including the Plaintiff, will release the Defendant from all claims, whether known or unknown, that were asserted or could have been asserted arising from or related to allegations set forth in the complaint. iv. Incentive Award: The Plaintiff requests a Class Representative enhancement award of $10,000. The Defendant does not oppose this request. v. Attorneys' Fees and Costs: The Plaintiff has filed an application for attorneys' fees not to exceed $317,333.33. The Defendant does not oppose this request. Judge Gilliam finds that the proposed settlement amount is fair, adequate, and reasonable, and that class members received adequate notice. He also finds that the Plaintiffs' counsel has not justified the discrepancy between a $10,000 incentive award and the estimated payout to the class members of less than $1,000. He will therefore authorizes payment of an enhancement award of $5,000 to the named Plaintiff. Upon review of the counsel's filings, the Judge finds that a lodestar multiplier is warranted, based most heavily on the described litigation risks and the quality of the result obtained for the class (i.e., a substantial cash payment of over $700 to each class member). He therefore finds that a multiplier of 1.2 is appropriate, and sets the class counsel's attorneys' fees at just over 30 of the total settlement amount, or $288,495. Judge Gilliam granted in part the Plaintiff's Motion for Final Approval of Class Action Settlement and the Plaintiff's Motion for Attorneys' fees. He approved the settlement amount of $952,000, including payments of attorneys' fees in the amount of $288,495; costs of $10,000; and an incentive fee for the named Plaintiff in the amount of $5,000. The parties and settlement administrator are directed to implement the Final Order and the settlement agreement in accordance with the terms of the settlement agreement. The parties are directed to submit a joint proposed judgment for approval by June 1, 2018. A full-text copy of the Court's May 29, 2018 Order is available at https://is.gd/S8WDjk from Leagle.com. Kyle Cuzick, Plaintiff, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group, Howard Scott Leviant - - scott@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group. Zodiac U.S. Seat Shells, LLC, Defendant, represented by Caryn F. Horner, Sheppard, Mullin, Richter & Hampton LLP, Greg Stephen Labate -- glabate@sheppardmullin.com -- Sheppard Mullin & Stephen Luther Taeusch -- staeusch@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. ********* 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 * * *