/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180725.mbx C L A S S A C T I O N R E P O R T E R Wednesday, July 25, 2018, Vol. 20, No. 148 Headlines 488 HOSPITALITY: Faces "Martinez" Suit in S.D. New York AFSCME: California Teachers File Class Action Over Union Fees AIMCO PROPERTIES: Faces "Fischler" Suit in E.D. New York AMAZON.COM LLC: Ct. Won't Compel Production of "Ortiz" Class List AMERICAN FAMILY: Colo. App. Affirms Dismissal of "Arline" Suit ANADARKO PETROLEUM: Judge Dismisses Securities Class Action APPLE INC: Faces Class Action Over Defective iPhone Batteries AUSTRALIA: Class Action Mulled Over Failure to Address Crimes BANK OF AMERICA: Settles Overdraft Fee Class Action BERKSHIRE BLANKET: Faces "Kiler" Suit in E.D. New York BONITA SPRINGS: Faces "Honeywell" Suit in M.D. Florida BOSQUE FARMS, NM: Partial Dismissal of "Sanchez" Advised BRAMBLES: Slater & Gordon, IMF Bentham to File Class Action CAPITAL BRANDS: Faces Class Action Over NutriBullet Blenders CALVARY LENAH: May Face Class Action Over Colonoscopy Procedures CENTRAL MAINE: New Bill to Boost Customers' Class Action CHANG GUANN: Tainted Edible Oil Victims to Get Compensation CHESAPEAKE BAY: Faces "Honeywell" Suit in M.D. Florida COMMONWEALTH BANK: Investors File Class Action in Australia DCT INDUSTRIAL: Faces Class Action Over Proposed Prologis Merger DENTAL EQUITIES: TCPA Suit Stayed Pending FCC Declaratory Ruling DETROIT, MI: Judge Dismisses Public School Students' Class Action DR PEPPER: Faces Class Action Over Canada Dry Ginger Ale Labeling DR PEPPER: Summary Judgment Bid in Stockholders Suit OK'd DRYBAR HOLDINGS: Faces "Rodriguez" Suit in California Super. Ct. EXECUTIVE CARE: Faces "MMatzura" Suit in S.D. New York FCA US: Tentative Ruling Denying "Victorino" Class Cert. Issued FIRSTSOURCE ADVANTAGE: Faces "Jang" Suit in D. New Jersey FOOT LOCKER: Wins Summary Judgment Bid in "Zelaya" GENERAL MOTORS: Court Narrows Claims in "Hindsman" Suit GLENCORE PLC: Law Firm Investigates Potential Securities Claims GOODLIFE FITNESS: Judge Okays $7.5MM Class Action Settlement GRAIN PROCESSING: July 2 Class Action Jury Trial Date Suspended HARRIS COUNTY, TX: Prelim Injunction Order in "ODonnell" Vacated IGNITE PAYMENTS: Dismissal of Amended Zam & Zam Suit Affirmed ILLINOIS: Denial of Class Certification in "Morris" Recommended IOWA: Averts Black Workers' Discrimination Class Action ISRAEL ELECTRIC: Gideon Fisher Attorney Comments on Ruling J BRAND: Faces "Olsen" Suit in E.D. New York JB HUNT: Seeks to Decertify Drivers' Wage Class Action KBR: Veterans' Class Action Over Burn Pits Won't Move Forward KCMCL COCONUT: Faces "Honeywell" Suit in M.D. Florida KESHAV HOTEL: Faces "Honeywell" Suit in M.D. Florida LL BEAN: Judge Tosses Class Action Over Return Policy Change LOCK HAVEN: Judge Refuses to Certify Retirement Class Action LONG ISLAND, NY: Sandy Case Plaintiffs Gets Class Action Status L'OREAL: Faces Class Action Over Defective Cosmetic Bottles NEW ENGLAND: 11th Cir. Affirms Arbitration Denial in "Gamble" NGU INC: Denial of Class Certification in "Win-Vent" Affirmed NQ MOBILE: Cohen Milstein to Lead in Securities Suit OHIO STATE: Jim Jordan Responds to Wrestling Team Abuse Claims OLDE NAPLES: Faces "Honeywell" Suit in M.D. Florida PACIFIC GAS: Faces Class Action Over Securities Violations PETROLEO BRASILEIRO: Makes $983MM Deposit Under Settlement Deal PHELAN HALLINAN: Pa. Super. Affirms Demurrer in "Johnson" PURDUE PHARMA: Halts Marketing of Opioids in Canada Amid Suits QUALITY CARE: Faces Two Class Actions Over Welltower Merger RETAIL FOOD: Franchisees' Mooted Class Action Dropped REV GROUP: Glancy Prongay & Murray Files Securities Class Action RICH BOYS TOYS: Faces "Winston" Suit in California Super. Ct. RIPPLE LABS: Faces Class Action Over Securities Law Violations ROCKPORT, MA: Reaches Settlement with Property Leaseholders ROYAL WINNIPEG: Ontario Court Allows Class Action to Proceed SAGE TELECOM: Ill. App. Affirms "Grimes" Dismissal SALON MANAGEMENT: Faces "Boyack" Suit in C.D. California SANTANDER CONSUMER: Can Compel Non-Class Arbitration in "Graham" SCI CALIFORNIA: Faces "Delacruz" Suit in California Super. Ct. SEAWORLD: Settles Annual Pass Holders' Class Action for $11.5MM SH FRANCHISING: Faces "Burbon" Suit in S.D. New York SIBANYE GOLD: Rosen Law Firm Files Securities Class Action SMITHFIELD: Vows to Appeal Hog Farm Class Action Ruling SOUTH CAROLINA: Faces Class Action Over Foster Care System STATE FARM: Classic Auto Body Files Class Action in Clair County STATE FARM: Court Approves Renewed Class Notice in "Durant" STATE FARM: Must Face Class Action Over Illinois Judge Campaign SUNTRUST BANKS: Settles ERISA Class Action for $4.7MM TARGET CORP: 7th Cir. OKs Class Action Objector to Pursue Claim TATA COMMUNICATIONS: Mahajan Files Class Action Over Lost Data TEAC CORP: Settles Optical Disc Drive Price-Fixing Class Action TENNESSEE: Sued Over Court Debt Driver's License Revocations TWITTER INC: Averts Female Engineers' Gender Bias Class Action TRANS UNION: "Miller" Transferred to N.D. Cal. for Consolidation UBER TECHNOLOGIES: BCAC Wins Dismissal of Wage Deductions Suit UNITED COLLECTION: Court Limits Discovery in "Meredith" UNITED STATES: DHS Must Give Parole Hearings to Asylum Seekers UNITED STATES: Fed. Cl. Grants Summary Judgment Bid in "Lucier" UNITED STATES: Minnesota Plaintiffs in "Ackerman" Suit Reinstated UNITED STATES: Counties Set to Receive PILT Class Action Payments UNITED STATES: Petersburg Borough Votes to Join PILT Class Action UNITED STATES: Town of Weathersfield Joins PILT Class Action UNITED STATES: Whitman County Agrees to Join PILT Class Action UNITED STATES: Goshen County Joins PILT Class Action UNITED STATES: Court Blocks Arbitrary Detention of Asylum Seeker UNIVERSITY OF OTTAWA: Sued Over Nadon Sexual Assault Allegations URBAN SPACE: N.Y. OKs Prel Approval of $265K Class Settlement VIRGINIA: Class Action Against SVJC May Face Delay VIVINT INC: 9th Circuit Affirms Class Action Dismissal VIZIO: Reaches Tentative Privacy Class Action Settlement WASHINGTON: Faces Class Action Over Home Care Worker Union Dues WEINSTEIN CO: Attorney Alleges Fraud, Racism Against Lantern WHATCOM COUNTY, WA: Sued Over Jail Addiction Therapy Protocol WILL RIVER: Bid to Dismiss Amended "Santiago" Suit Partly OK'd * Skadden Securities Litigators Issue Class Action Update ********* 488 HOSPITALITY: Faces "Martinez" Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against 488 Hospitality Group LLC. The case is styled as Rodolfo Solano Martinez, on behalf of himself and all others similarly situated, Plaintiff v. 488 Hospitality Group LLC, 790 Lounge LLC, Mino Habib and Paul Seres, Defendants, Case No. 1:18-cv-06333 (S.D. N.Y., July 12, 2018). 488 Hospitality Group LLC doing business as "The Attic Cafe" is both a coffee shop and bar located in the heart of Downtown Tampa.[BN] The Plaintiff appears PRO SE. AFSCME: California Teachers File Class Action Over Union Fees ------------------------------------------------------------- Amanda Bronstad, writing for The Recorder, reports that seven California teachers have filed a class action to claw back union fees that were collected, they claim, in violation of their constitutional rights. The suit, filed on July 2 in U.S. District Court for the Central District of California, is among the first filed since the U.S. Supreme Court's June 27 decision in Janus v. AFSCME. In a 5-4 ruling, the Supreme Court struck down fees used to cover collective bargaining costs after finding they unconstitutionally violated the First Amendment rights of the plaintiffs, nonunion members who disagreed with the union's political views. "The lawsuit we filed is a refund of the fees that were illegally extracted," said John Bursch -- jbursch@burschlaw.com -- of Bursch Law in Grand Rapids, Michigan, who along with the Clark Hill law firm filed the class action on behalf of California's public school teachers. He said 20 other lawsuits across the country seek similar refunds -- although some of those cases predate the Janus decision. His suit named two national teacher unions -- the National Education Association and the American Federation of Teachers -- and three California unions. It also named nine local unions, nine school districts and nine school superintendents and chancellors. Randi Weingarten, president of the American Federation of Teachers, described the suit as politically motivated, noting that Janus did not require the return of past fees. "As we have said repeatedly, these efforts by right-wing forces to weaponize the First Amendment and overrule 40 years of precedent -- through a 5-4 decision in Janus -- are intended to defund unions by starving them of the resources they need to secure a pathway to the middle class and a voice at work for working people," Mr. Weingarten wrote. "The AFT and its affiliates are taking great care to comply with the Janus decision, regardless of how wrongheaded we think it is." Spokespeople for the National Education Association and California Teachers Association declined to comment. Mr. Bursch said he expected each teacher to be seeking "a couple thousand dollars" in fees paid over the past three years. The plaintiffs claim they resigned their union membership but still had "fair share service fees" taken out of their paychecks. At least four of the plaintiffs brought a previous case called Friedrichs v. California Teachers Association that resulted in a case where the justices tied, 4-4, shortly after Justice Antonin Scalia died in 2016. [GN] AIMCO PROPERTIES: Faces "Fischler" Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Aimco Properties, L.P. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Aimco Properties, L.P., Defendant, Case No. 1:18-cv-04022 (E.D. N.Y., July 12, 2018). Aimco or Apartment Investment and Management Company is a publicly traded real estate investment trust.[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 AMAZON.COM LLC: Ct. Won't Compel Production of "Ortiz" Class List ----------------------------------------------------------------- The United States District Court for the Northern District California issued an Order on Joint Discovery Dispute in the case captioned MICHAEL ORTIZ, Plaintiff, v. AMAZON.COM LLC, et al., Defendants, Case No. 17-cv-03820-JSW (MEJ) (N.D. Cal.). The parties filed a joint discovery dispute letter regarding Defendant Golden State FC LLC's production of a class list. Plaintiff Michael Ortiz emailed counsel for Golden State, requesting a class list with the names and contact information of all persons employed by Golden State FC, LLC and/or Amazon.com LLC, in California as Level 4 managers at any time after June 2, 2013. The Plaintiff now seeks an order compelling Golden State to produce a class list. The Court notes that, first, the Plaintiff did not propound his request for a class list in a formal discovery request; he has only sought this information via an informal email. Given that the Plaintiff has yet to even engage in formal discovery on this matter, bringing this dispute to the Court's attention at this point is premature and wastes Court time and resources. To the extent Plaintiff argues Golden State should have produced the class list as part of its initial disclosures, he cites no authority to support this position. Second, prior to class certification under Rule 23, discovery lies entirely within the discretion of the court. The Plaintiff makes no attempt to show Rule 23's requirements are satisfied or that this discovery is likely to substantiate the class allegations. This in and of itself is not a basis to deny discovery; however, the Court cannot find this discovery is warranted under these circumstances, where the Plaintiff also has yet to propound a formal discovery request and also fails to show the requested discovery is proportional to the needs of the case. The Plaintiff argues he needs putative class members' names and contact information, but he does not explain how this will resolve factual issues fundamental to the maintenance of his action. At this juncture, Golden State's proposed production is sufficient. The Court declines to impose the Plaintiff's requested conditions that Golden State stipulate not to contact the putative class members not on the list and stipulate that the sample class list is statistically significant. The Plaintiff does not explain why these impositions are necessary. The Court directs that Golden State produce, pursuant to its proposed compromise, a sample list of 20% of Level 4 Shift Managers at its California Delivery Stations from June 2, 2013 to the present. The Court previously reminded the Plaintiff and his attorneys that they have a responsibility to to secure the just, speedy, and inexpensive determination of every action and proceeding. Seeking Court intervention prior to propounding a formal discovery request is inconsistent with these obligations, the Court notes. A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/y7n8od9v from Leagle.com. Michael Ortiz, on behalf of himself and all others similarly situated, Plaintiff, represented by Corey Benjamin Bennett, Scott Cole & Associates, Scott Edward Cole, Scott Cole & Associates, APC & Cesar A. Alvarado, Law offices of Scott Cole. Amazon.com LLC, a Delaware Limited Liability Company & Golden State FC LLC, a Delaware Limited Liability Company, Defendants, represented by Eric Meckley -- eric.meckley@morganlewis.com -- Morgan, Lewis & Bockius LLP & Nancy Villarreal -- nancy.villarreal@morganlewis.com -- Morgan Lewis & Bockius LLP. AMERICAN FAMILY: Colo. App. Affirms Dismissal of "Arline" Suit -------------------------------------------------------------- The Court of Appeals of Colorado, Division III, affirmed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned Anitra Arline, Plaintiff-Appellant, v. American Family Mutual Insurance Company, Defendant-Appellee, No. 17CA1296 (Colo. App.). Arline's complaint alleges that she was injured by an underinsured motorist. She submitted claims to American under insurance policies which provided $5000 in MedPay coverage and a total of $50,000 in individual UIM coverage. Arline sued American on her own behalf, asserting breach of contract. American responded that the Agreement was a complete bar to the cause of action in simultaneous motions to dismiss for (1) lack of standing, pursuant to C.R.C.P. 12(b)(1); and (2) failure to state a claim upon which relief can be granted, pursuant to C.R.C.P. 12(b)(5). Arline argued that the Agreement was unenforceable because it was contrary to applicable law and public policy. However, the district court found that Arline's arguments were relevant only to the terms of her insurance policy and not to the Agreement. Accordingly, the court found that the Agreement was enforceable, granted American's motion to dismiss for lack of standing, and did not address the Rule 12(b)(5) motion because it was rendered moot by the Rule 12(b)(1) dismissal. A release is the relinquishment of a vested right or claim to a person against whom the claim is enforceable. An insured may agree to a term of settlement and release as the insured sees fit, so long as the term does not violate statutory prohibitions or public policy. In November 2016, one year after Arline settled, the supreme court, in Calderon v. Am. Family Mut. Ins. Co., 2016 CO 72, held for the first time that section 10-4-609(1)(c), C.R.S. 2017, prohibits insurers from reducing the UIM benefits paid on a claim by the amount of MedPay benefits paid on that claim, which the court termed a setoff. The Court agrees with Arline's assertion that, in Colorado, the purpose of UIM insurance is to place an injured party having uninsured motorist coverage in the same position as if the uninsured motorist had been insured. Here, however, Arline negotiated her damages benefits and agreed that the $27,000 UIM benefit amount paid compensated her sufficiently to warrant releasing American from any further claims. The present settlement agreement does not concern the amount of UM/UIM coverage available on her claim, but rather the amount of money she was willing to accept to release her claim. Arline now argues, for the first time on appeal, that she was not compensated in the same manner as if she had been injured by a fully insured motorist. But she does not allege facts to support this argument. She alleges only that she did not receive what she was "entitled to" because of the setoff provision in her UM/UIM policy. Accordingly, the Court concludes that the Agreement is enforceable. The Court's conclusion is consistent with that of three recent federal district court cases resolving this issue. Because Arline signed a valid release agreement which is not void as against public policy or prohibited by statute, the district court properly dismissed her claim. The judgment is affirmed. A full-text copy of the Colo. App.'s May 31, 2017 Opinion is available at https://tinyurl.com/ydg6rhv5 from Leagle.com. Bradley A. Levin -- bal@levinsitcoff.com -- Susan S. Minamizono, Denver, Colorado; Patricia Meester, Keith R. Scranton, for Plaintiff-Appellant. Faegre Baker Daniels LLP, Michael S. McCarthy -- michael.mccarthy@FaegreBD.com -- Todd P. Walker -- todd.walker @FaegreBD.com -- Matthew D. Clark -- matthew.clark@FaegreBD.com -- Denver, Colorado, for Defendant-Appellee. ANADARKO PETROLEUM: Judge Dismisses Securities Class Action ----------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, wrote that on June 19, 2018, Judge Lee H. Rosenthal of the United States District Court for the Southern District of Texas dismissed with leave to amend a putative securities class action against Anadarko Petroleum Corporation ("Anadarko" or the "Company") and certain of its officers. Edgar v. Anadarko Petroleum Corp., et al., No. 17-1372 (S.D. Tex., June 19, 2018). Plaintiffs alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5 by allegedly making material misstatements about the safety of its gas wells and compliance with regulatory requirements. The Court found all but one of the alleged misstatements was not actionable because they amounted to opinions and "corporate cheerleading." Although the Court found one alleged misstatement actionable, it held that the complaint failed to establish scienter, and granted leave to amend the complaint. The Company is an oil and gas exploration and production company. In 2013, it acquired land north of Denver, including approximately 1,500 existing oil wells that allegedly were decades old and did not comply with health, safety, and environmental laws and regulations. After discovering that several hundred of the wells posed safety and environmental hazards, the Company authorized tens of millions of dollars for remediation. However, after oil prices plummeted in 2014, Plaintiffs alleged that the Company reversed course, slashed its remediation budget, and laid off 30 percent of its workforce responsible for well remediation. Plaintiffs alleged that defendants' failure to remediate caused a significant oil spill, and a deadly explosion at a Colorado home, which the local fire department confirmed was caused by a methane leak from a Company well. The Company's stock price fell the day following the fire department's announcement. Plaintiffs alleged that various statements in the Company's published "fact sheets" and SEC filings constituted material misstatements about the Company's compliance with health and safety standards. The Court found nearly all statements about the Company's compliance were not misleading because (i) no reasonable investor would interpret them as a guarantee of full compliance, (ii) statements that Anadarko believed it was in compliance constituted non-actionable opinions, which plaintiffs failed to allege that defendants did not genuinely hold, and (iii) statements that the operations center's management was "state of the art" were non-actionable "corporate cheerleading." The Court held that the Company's statement that it "operates its global onshore and offshore operations in compliance with applicable laws" constitutes an actionable misstatement. The Court reasoned that this statement was a specific and unqualified assertion of fact. The statement was ultimately untrue because the Company allegedly violated a Colorado Oil and Gas Conservation Commission rule. Nevertheless, the Court found that plaintiffs failed to adequately plead scienter because they did not show that defendants were aware of a failure to comply with the Commission's rule at the time the statement was made. The Court dismissed the claims along with the derivative claim under section 20(a), but granted plaintiffs leave to amend the complaint. [GN] APPLE INC: Faces Class Action Over Defective iPhone Batteries ------------------------------------------------------------- Rick Archer, writing for Law360, reports that a group of iPhone 6 users has filed a proposed class action against Apple Inc. in California federal court, claiming the company secretly throttled phone performance over the last year in an attempt to deal with power problems caused by a defective design. The proposed class -- consisting of 76 iPhone owners from multiple countries -- claimed on July 2 that the phone was defective, designed with a "mismatch" between its battery and the demands of Apple's operating system that created power problems. The case is captioned Rodriguez et al v. Apple, Inc., Case No. 5:18-cv-03989 (N.D. Calif.). The case was filed July 2, 2018. [GN] AUSTRALIA: Class Action Mulled Over Failure to Address Crimes ------------------------------------------------------------- Cameron Bates, writing for NTNews, reports that Hinchinbrook MP Nick Dametto says government policies to address crime are failing and that it is time to find out who is responsible. "Who picks up the pieces? The taxpayer. Right now, every time the legislation fails to protect the community, the taxpayer foots the bill," the Katter's Australian Party politician said. Mr Dametto, speaking to the Herbert River Express after a string of burglaries in Ingham, said that small businesses targeted by criminals were suffering from the cost of stolen items, vandalised properties, wasted time, stress and insurance hikes. "And when they do claim insurance, there are shortfalls in what the items are actually worth and what they are getting paid out." He said there were grounds to investigate whether the government was responsible for the mess. "I'd love for a lawyer to grab a hold of this and do a class- action lawsuit against the government." KAP are pushing for a youth relocation sentencing policy, which would see young offenders sent to remote locations to work on the land and learn life skills. [GN] BANK OF AMERICA: Settles Overdraft Fee Class Action --------------------------------------------------- Joe Ducey, writing for ABC 15, reports that most of the time, banks make money off of you. How about turning the tables, and you making money off of them? Three banks settled class action lawsuits for millions recently. At Bank of America, a lawsuit claims even if you had overdraft fees turned off, the ride-sharing service Uber was still able to put through charges. And that meant overdraft fees for some customers. The settlement means $20 back per overdraft if they happened between 2012 and 2016. Bank of America claims no wrongdoing. At JPMorgan Chase, a lawsuit alleges they robocalled cell phones without getting permission. If you got a call from the bank about collecting a debt between April 20, 2010, and March 16, 2018, you may get up to $101 per call. The deadline to file a claim is August 13, 2018. JPMorgan Chase claims no wrongdoing. Then there's Wells Fargo. The government has taken action against them, including a one billion dollar fine for alleged consumer abuses. Now the bank has settled a class action lawsuit over alleged opened accounts that consumers didn't know about. Allegations are many had to pay overdraft fees because of it. If it happened to you as far back as 2002, you could get part of the $142 million dollar settlement. Wells Fargo claims no wrongdoing. [GN] BERKSHIRE BLANKET: Faces "Kiler" Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Berkshire Blanket & Home Co., Inc. The case is styled as Marion Kiler, individually and as the representative of a class of similarly situated persons, Plaintiff v. Berkshire Blanket & Home Co., Inc., Defendant, Case No. 1:18-cv-04007 (E.D. N.Y., July 12, 2018). Berkshire Blanket & Home Co., Inc. designs, manufactures, and markets blankets, throws, and soft home goods. It offers plush and fleece blankets, quilts and comforters, reversible blankets, natural fibers and blends, and heated blankets and throws; bedding sets; sheet sets and sheet separates; plush and fleece throws, luxury throws, velvetloft throws, extra-fluffy throw blankets, serasoft throws, kids' throw blankets, and throw blankets for pets; and everyday, kids', luxury, and neck roll pillows, as well as wedge, body, and floor pouf pillows.[BN] The Plaintiff appears PRO SE. BONITA SPRINGS: Faces "Honeywell" Suit in M.D. Florida ------------------------------------------------------ A class action lawsuit has been filed against Bonita Springs Hotel, LLC. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. Bonita Springs Hotel, LLC, a Virginia limited liability company, Defendant, Case No. 2:18-cv-00488-JES-MRM (M.D. Fla., July 12, 2018). Bonita Springs Hotel I LLC is a privately held company in Estero, FL and is a Single Location business. Categorized under Hotels- Apartment. It was established in 2009 and incorporated in Florida. Current estimates show this company has an annual revenue of 723469 and employs a staff of approximately 19.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com BOSQUE FARMS, NM: Partial Dismissal of "Sanchez" Advised -------------------------------------------------------- Magistrate Judge Steven C. Yarbough of the U.S. District Court for the District of New Mexico recommended that the Court grants in part and denies in part the Defendants' motion to dismiss the case, MARK SANCHEZ, and PATRICK MARQUEZ, on behalf of themselves and a class of similarly situated individuals, Plaintiffs, v. DEREK WILLIAMS, et al., Defendants, Civ. No. 11-1021 KG/SCY (D. N.M.). Plaintiffs Sanchez and Marquez, together with former Plaintiffs Oscar Leyva and Dustin Sarrett, commenced the lawsuit against the Village of Los Lunas and Bosque Farms Defendants, among others, in 2011. In early 2012, the Court consolidated the case with Wilson v. Montano et al., Civ. No. 11-658 KG/SCY and Ortiz v. Benavidez et al., Civ. No. 11-951 KG/SCY. Doc. 36. Plaintiff Sanchez alleges that Bosque Farms police officer Steven Roberts arrested him without a warrant on July 1, 2010. Further, he alleges, Officer Roberts booked him into the Valencia County Detention Center ("VCDC") and then failed to file a criminal complaint against him. As a result, Plaintiff Sanchez claims that he unnecessarily remained in custody at the VCDC for approximately eight days. With regard to the VCDC, Plaintiff Sanchez asserts that the booking officer never arranged to have him appear before a magistrate judge and did not release him when it became apparent no charges were filed. Plaintiff Marquez alleges that Los Lunas Officer Delinda Chavez arrested him without a warrant on or about June 15, 2010. According to him, Officer Chavez booked him into the VCDC following his arrest but waited until June 28, 2010 to file a criminal complaint against him. When Plaintiff Marquez was then brought before a magistrate judge on June 29, 2010, the magistrate judge released him. Further, he alleges that the VCDC booking officer neither arranged to have him brought before a magistrate judge nor released him during the time he was kept in custody without any charges having been brought against him. Plaintiffs Marquez and Sanchez are also representatives in a putative class action brought on behalf of all people who have been incarcerated in VCDC without criminal charges being filed on the day of their arrest or, if the court is not open on the day of the arrest, on the next business day of the court. Their co- plaintiffs, Sarrett and Leyva, are no longer part of the case, as the Court dismissed their claims with prejudice on Feb. 6, 2018, as a sanction for discovery violations and failure to prosecute their claims. Discovery stays have been in place throughout much of the litigation. In December 2016, the Court ruled on a number of motions that had been pending. Magistrate Judge Yarbough held a status conference on Jan. 24, 2017 and lifted the discovery stay in place at the time. He initially bifurcated discovery in the case to allow all of the parties to conduct written discovery regarding class certification issues before commencing merits discovery. Subsequently, over the course of multiple follow-up status conferences with the parties, he modified the discovery process to allow for a phased pre-certification discovery approach. On July 24, 2017, he set settlement conferences which, at the request of the parties, he later vacated and reset to the end of November 2017. At a status conference on Sept. 12, 2017, the parties requested that the commencement of Phase 2 discovery be delayed until after the November settlement conferences. On Oct. 26, 2017, he entered an order setting a deadline for Phase 2 discovery to be completed by Jan. 26, 2018. He also set a deadline of Feb. 16, 2018 for the Plaintiffs to file their motion for class certification. On Dec. 14, 2017, the Defendants filed a motion to compel, arguing that the Plaintiffs had been completely unresponsive to their attempts to obtain discovery. The Court denied this motion because the Defendants propounded their discovery requests prior to the commencement of Phase 2 discovery and because the scope of discovery requested exceeded the amount the Court allowed. The Court then directed Defendants to serve written discovery that complied with its order regarding Phase 2 discovery no later than Jan. 31, 2018, and allowed the Plaintiffs two weeks thereafter to respond to the discovery. Having received no response, the Defendants filed their motion to dismiss on Feb. 14, 2018. The Plaintiffs, however, did not file a timely response. On March 8, 2018, the Magistrate Judge scheduled a hearing on the Defendants' motion to dismiss to take place on April 5, 2018. On March 19, 2018, the Office of Disciplinary Counsel for the Disciplinary Board of the New Mexico Supreme Court notified the Court of a pending Petition for Administrative Suspension of the Plaintiffs' counsel. On March 29, 2018, Plaintiffs filed a motion to extend the deadline to respond to, among other things, the Defendants' motion to dismiss. The Magistrate Judge denied this motion with leave to renew it at the April 5, 2018 hearing. For a portion of the April 5, 2018 hearing, the Magistrate Judge sealed the courtroom so that he could hear details from the Plaintiffs' counsel about his medical condition. Based on the representations of the Plaintiffs' counsel, he is convinced that the Plaintiffs' counsel did suffer from a medical condition that reached a peak in late December 2017 and which significantly impaired his ability to respond to discovery and meet Court imposed deadlines. He recommended that the Court make such a finding. During the open portion of the April 5, 2018 hearing, he pointed out that, while the Plaintiffs had moved to extend the time to respond to the Defendants' motion to dismiss, they had not filed a motion to extend the Feb. 16, 2018 class certification deadline. The Plaintiffs' counsel responded that he would be filing a motion for a new scheduling order but that he first needed to verify with his clients that they continued to be willing to pursue the class claims as class representatives. The Plaintiffs' counsel stated that he could ascertain his clients' willingness to remain as class representatives within seven to fourteen days. At the conclusion of the hearing, he granted the Plaintiffs' counsel's request for an opportunity to file a written response to the Defendants' motion to dismiss as well as to the motions for summary judgment filed by the Valencia County Defendants. The Plaintiffs filed responses to these motions on April 19, 2018. To date, however, the Plaintiffs have not filed a motion to extend the Feb. 16, 2018 deadline to move for class certification. Magistrate Judge Yarbough holds that given the Plaintiffs' recent failures to comply with their discovery obligations, including a failure subsequent to the April 5, 2018 hearing to file a motion to extend the time to move for class certification, he is concerned that they will not diligently prosecute their individual claims. Nonetheless, the Plaintiffs' counsel represented that he intended to associate with an experienced and well-respected attorney going forward in the case. Based on this representation, he recommended that the Court concludes that the lesser sanction of dismissal of the class claims (as opposed to all claims) is sufficient to address the Plaintiffs' failure to provide discovery related to the class claims. The Magistrate Judge concludes that the Plaintiffs' failure to comply with their discovery obligations related to the class claims warrants dismissal of those claims. Because the Plaintiffs' violations do not directly relate to discovery on their individual claims, however, dismissal of their individual claims is inappropriate at this time. Therefore, he recommended that the Court grants in part and denies in part the Defendants' motion to dismiss such that the Court dismisses with prejudice the Plaintiffs' class claims and denies the Defendants' motion to dismiss the Plaintiffs' individual claims. A full-text copy of the Court's June 1, 2018 Order is available at https://is.gd/lAFH65 from Leagle.com. Mark Sanchez & Patrick Marquez, on behalf of themselves and a class of similarly situated individuals, Plaintiffs, represented by Jack Bennett Jacks, Law Office of J.B. Jacks. Derek Williams, Former Warden & Joe David Chavez, Jr., Warden, Defendants, represented by Andrew Anders -- aa@Keleher-Law.com -- Keleher & McLeod, PA, Brandon Huss, New Mexico Association of Counties, Dennis K. Wallin, Wallin, Huss, & Associates, LLC & Kurt Wihl -- kw@keleher-law.com -- Keleher & McLeod PA. Louis Burkhard, Sheriff, Defendant, represented by Brandon Huss, New Mexico Association of Counties & Dennis K. Wallin, Wallin, Huss, & Associates, LLC. Steven Roberts, Greg Jones, Bosque Farms Police Department, Police Chief, Delinda Chavez, Nick Balido, Former Los Lunas Police Department, Chief of Police & Roy Melnick, Los Lunas Police Department, Chief of Police, Defendants, represented by James P. Lyle, Law Offices of James P. Lyle P.C.. BRAMBLES: Slater & Gordon, IMF Bentham to File Class Action ----------------------------------------------------------- Lawyerly reports that Slater & Gordon and IMF Bentham will file a shareholder class action claim against Brambles, the Australian supply chain logistics company. The pair's class action is the second the embattled ASX-listed company faces, after Maurice Blackburn filed a class action several months ago alleging a breach of continuous disclosure obligations after a pair of revised projected sales growth forecasts which led to steep declines in the share price. [GN] CAPITAL BRANDS: Faces Class Action Over NutriBullet Blenders ------------------------------------------------------------ Jonathan Berr, writing for CBS News, reports that the maker of the NutriBullet high-speed blender is facing a class action accusing it of failing to warn consumers about the potential for the gadget to explode without warning, causing injuries to consumers, including burns. In a 64-page court filing dated July 2, Capital Brands is accused of violating federal and state consumer protection laws along with warranty laws. Plaintiff Deveta White of Goose Creek, South Carolina, is seeking both damages and an order preventing Capital Brands from continuing to sell the defective products. She also wants the company to warn existing owners about NutriBullet's potential dangers. A similar case by North Carolina resident Johanna Suarez was filed in December 2017 and is pending in federal court, according to the PACER system. California attorney Danny Abir told CBS Morning News last year that he had brought nearly two dozen cases alleging harm from NutriBullets. Unlike the other cases, White's is seeking class-action status and is the only one of its type currently pending against the company. An earlier class action was dismissed. According to this most recent lawsuit, the blender's canister can pressurize to the point where it separates from the other parts, spewing out its contents onto everything and everyone in range. The explosions can happen without warning even when a consumer is making a cold smoothie because, according to the lawsuit, heat from the blender's fast-moving blades can make the ingredients scalding hot. Even if the NutriBullet doesn't explode, the suit claims, consumers are still at risk. The buildup of pressure can send the blade assembly flying after the blender's lid is removed following normal use. "The blenders pose a safety risk to users as well as other people -- including children -- who may be in close proximity to the blender when it explodes," according to the filing, which notes that the company hasn't issued a recall. "Despite its knowledge, NutriBullet fails to warn its consumers that the product may explode posing a serious safety risk to users and any living thing in the proximity of the explosion." White suffered second-degree burns on her chest and first degree burns on her arms, forcing her to miss work and incur nearly $6,000 in medical expenses to date after her NutriBullet exploded while she was blending water, walnuts, sea moss and cinnamon for under 60 seconds. The company claims the blender can be safely operated for up to 60 seconds -- sufficient time to make a smoothie -- before a safety feature will cut off power to the gadget. Capital Brands is contesting all claims that the NutriBullet is dangerous when used properly. The lawsuit claims that the defects have been present in NutriBullets, which are marketed as "nutrition extractors," made since 2007. Consumers have complained about explosions to the Consumer Product Safety Commission's (CPSC) SaferProducts website and to the company directly via Facebook. Though the CPSC reviews all complaints it receives from consumers, they don't necessarily trigger a formal investigation. A CPSC spokeswoman declined to comment. In a statement to CBS MoneyWatch, Los Angeles-based Capital Brands defended the quality of the NutriBullet, which come in a range of sizes. "NutriBullet is dedicated to the safety and satisfaction of its customers," the company said. "Every day, millions of customers safely use the Nutribullet to blend nutritious smoothies from fruits, vegetables, and nuts. NutriBullets are safe and present no issue if used as directed, such as not blending heated foods, or using the blender for longer than necessary to make a smoothie, which is generally less than one minute." In 2014, Consumer Reports urged its readers not to buy the NutriBullet Pro 900 after noticing blades cracked during a durability test, which NutriBullet disputed. Consumer Reports lifted the warning two years later after NutriBullet made the machine's blades thicker. NutriBullets are available at major retailers including Walmart Amazon, Costco and Bed Bath & Beyond as well as directly from the company. More than 14 million of the gadgets have been sold worldwide. [GN] CALVARY LENAH: May Face Class Action Over Colonoscopy Procedures ---------------------------------------------------------------- David Robertson, Emily Street and Rhiana Whitson, writing for ABC News, report that a former colonoscopy patient said her doctor, who was later the subject of nurses' concerns, did not look well at the time she consulted him in December 2017. Almost 390 patients of Calvary Lenah Valley Hospital who underwent a colonoscopy with the late doctor Hugh Jackson between November 2017 and May 2018 have been advised to have a repeat procedure. Dr Jackson died on June 6 following an illness. Calvary admitted that nurses first raised concerns that the doctor's health may be affecting his work in November last year, but the hospital continued to let him carry out the procedures. Diane -- who wants to remain anonymous -- said she had the procedure in December and had remarked to her family and GP that Dr Jackson did not look well. "I didn't think more about it until I heard on the news that Calvary were offering free colonoscopies for 390 patients that were tended by Dr Jackson," she said. "I got a letter this morning, saying they [Calvary] were sorry, and that what had happened was that the examination wasn't proceeded properly." The patient was told nurses raised their concerns to the hospital in November. "I asked why it wasn't stopped then," she said. "Why wasn't it fixed up in November, instead of letting it go through to May?" Diane said she was concerned the nurses weren't listened to. She said wanted to know if nurses were supported and she intended to ask that question. AMA Tasmania's Dr John Davis said his organisation only became aware of the situation when the hospital had its media conference on July 3. Dr Davis said he was not aware of Calvary's internal processes, but Dr Jackson was a distinguished doctor. "Clearly if a doctor was not performing to their best, you would expect the clinical processes would come through in the hospital, and I guess Calvary has done that," he said. "What they are saying is that all patients who had a scope, which may not have been complete, are being invited back at Calvary's expense to have that scope again." He stressed there was no certainty that any colonoscopies were incomplete. "I feel for the patients that have to go through the procedure a second time, but I think that it is the right thing for Calvary to admit there has been a problem and to put in place a clear process to make sure that patients are well looked after," he said. Dr Graham Newstead from Bowel Cancer Australia said it was a "significantly unusual" case, and he was not familiar with details of this case, only having read the media reports. "The important part of the whole exercise is: were possible polyps and even possible cancers missed in the colonoscopies for whatever reason that it seems he may not have been unable to complete in an ideal manner?'" he said. Dr Newstead said the situation was that if you failed to get around the whole bowel, you simply couldn't know what was in there. "If there is a cancer in the caecum -- the beginning of the large intestine -- and you don't get around that last corner . . . then of course you will miss it. "It's not good enough if one says 'look, I think I was there'." He said photographs could be taken of various places in the bowel during the procedure to confirm that various locations had been covered by the camera. He said the good news was that all the cancers came from polyps in the bowel, and they take between five and 15 years to develop. Dr Newstead said 40 per cent of men and 30 per cent of woman had polyps -- little mushroom-shaped growths on the surface of the bowel -- and the frequency of procedures for those who needed regular checks varied according to family history and any symptoms or previous discoveries. He said there was a big difference for someone who had been notified of the presence of polyps some years previously, as opposed to someone who had been told they had an early cancer then. Lawyer outlines possible legal consequences Lawyers say Calvary could face a class action if some of the 400 patients develop bowel cancer. Medical negligence lawyer Dimitra Dubrow from Maurice Blackburn said the hospital had taken the right step in recalling these patients for repeat colonoscopies, but if further investigation found evidence of cancer, there could be legal consequences for Calvary. "It may well be that the patients who underwent colonoscopies, after the time that he should have been removed, may be able to have recourse if they have suffered injury as a result of delay or misdiagnosis of bowel cancer," she said. Ms Dubrow questioned whether the hospital and staff as designated mandatory reporters had informed the Australian Health Practitioner Regulation Agency of its concerns. [GN] CENTRAL MAINE: New Bill to Boost Customers' Class Action -------------------------------------------------------- Gina Hamilton, writing for Boothbay Register, reports that a class action lawsuit that could involve tens of thousands of Central Maine Power customers got a boost June 21 when LD 1729 passed as an emergency measure. It needed and got more than two- thirds of the Legislature's "yea" votes. The bill, which was amended and renamed by the Energy, Utilities and Technology Standing Committee, "An Act To Restore Confidence in Utility Billing Systems," was sponsored by Sen. Lisa Keim, R - Dixfield. Rep. Tina Riley, D-Jay, amended it with Keim's consent. It passed unanimously, 127-0, with 24 absences. On July 2, Gov. Paul LePage vetoed the bill. He stated in his veto message, the bill targeted Central Maine Power specifically and unfairly. It would affect any investor-owned utility, including CMP, and Emera, the state's two largest electricity transmission companies. Then on July 9, the Legislature overrode the governor's veto of LD 1729 that lets the Public Utilities Commission put part of an audit's cost on shareholders of investor-owned utilities, if the audit found "imprudence" by the utility. The bill became law after the Legislature unanimously voted to override the veto. CMP had record numbers of customer complaints after installing its new billing system in October. The PUC has received over 97,000 complaints from customers, alleging overbilling. Despite passing out of committee in April with a divided report along strict partisan lines, with Democrats for and Republicans against, the bill had bipartisan support as an emergency measure in the summer's special session. Rep. Seth Berry, D - Bowdoinham said that was because between April and June, memos written by various managers at CMP had been leaked to the press, indicating CMP knew of billing and possibly metering issues long before customers, the Public Utilities Commission, and the Public Advocate had identified them. LD 1729 will let the PUC split an audit's cost between ratepayers and shareholders, if the audit contributes to an imprudence finding that gives ratepayers a break. The PUC will also determine a method of system accuracy routine auditing, not unlike the Bureau of Weights and Measures performs on gas tanks at filling stations, and will create rules for when and how that auditing will be done by an independent auditor. In addition, it requires the PUC to produce a report on whether the investor-owned utilities are doing enough to protect and strengthen their systems, "especially with what appears to be an increase in high-intensity storm events." The class action lawsuit, begun in May by a Facebook User group called CMP Ratepayers Unite, currently has about 3,000 ratepayers who have expressed interest in joining the class, according to members of the page, although more are inquiring every day. Complete details will not be known until interested class members file a response to one of the lawyers involved. Local attorneys Sumner H. Lipman -- slipman@lipmankatz.com -- of Lipman & Katz and James Belleau of Trafton, Matzen, Belleau & Frenette retained the New York law firm of Napoli Schkolnik, PLLC to take the lead on behalf of CMP customers. According to the Public Utilities Commission, 97,000 customers experienced bills at least 50 percent higher than normal from December 2017 through March 2018, just as the investigation in the Legislature and at the PUC got underway. CMP initially claimed it had found no evidence of any billing or metering issues. The memos demonstrating its knowledge to the contrary were leaked to the Portland Press Herald in May and later delivered to the Public Advocate's office and the PUC. In one of the memos, a Jan. 15 email from CMP's director of electric supply Susan Clary, to customer services head Rachel Grenier and other CMP managers, Clary acknowledged billing errors and warned that the company had to get a handle on the issue or risk being in the middle of a PUC investigation. For at least three months after this email, the company denied any problems with the billing system beyond cosmetic issues such as graphs not appearing correctly on the bills. By February, CMP was trying to figure out how to increase customer service personnel to deal with the onslaught of calls and complaints. By March, the PUC had opened an investigation, and by April, the Legislature's Energy, Utilities, and Technology Committee had scheduled hearings. On May 4, when he learned of the leaked memos, Public Advocate Barry Hobbins asked the PUC to elevate the inquiry to an adjudicatory investigation, which he said would be the only way he as advocate could intervene with the utility on the consumers' behalf. He said if the PUC did not act, he might consider taking legal action himself on behalf of ratepayers, referring to the memos as "part of the smoking gun." Mr. Hobbins said he did not receive copies of the memos until they had been published in the paper and he asked the PUC for copies, around the middle of May. "The company had represented to the Legislature that there was no problem, when they were certainly aware of ongoing issues, so now we have to question what CMP knew, and when did they know it?" Henry Lanphear of the PUC said May 7 that legal action would be premature, but held out the option of the PUC taking legal action after the audit is complete. In a phone interview, Mr. Hobbins said he was disappointed and not happy, and said he intended to maintain his pressure on CMP and did not rule out filing suit on his own. The passage of LD 1729 gave the Legislature the legal rationale to ask the PUC to act. [GN] CHANG GUANN: Tainted Edible Oil Victims to Get Compensation ----------------------------------------------------------- Wang Shu-fen and Flor Wang, writing for CNA, report that over 4,000 people involved in a class action suit against edible oil maker Chang Guann Co. Ltd. will receive the compensation they were promised, the Consumer Protection Association of Taiwan (CPAT) confirmed on July 4. After more than three years of litigation, the association has received NT$24.42 million (about US$799,500) from auctions of Chang Guann's assets that will be sent to 4,048 plaintiffs by the end of July, CPAT Deputy Secretary-General Hsu Pang-han told a news conference. The plaintiffs are students and teachers at 22 kindergartens and schools across the country that used cooking oil from Chang Guann produced with "gutter oil" -- oil that is recycled from restaurant waste and animal byproducts and can contain carcinogens. The 4,048 plaintiffs filed the class action suit against the edible oil maker with the help of the association after the cooking oil scandal broke out in 2014. According to Hsu, 3,811 plaintiffs reached a settlement with Chang Guann during the first trial, with each being awarded NT$6,000 in compensation. Another 160 plaintiffs were awarded NT$6,000 to NT$9,000 based on the ruling of the first trial, while the remaining 77 who did not get compensation following the first trial were eventually awarded NT$3,000 each as a result of the lawsuit, he said. However, the company did not have the money to pay the compensation awarded through the legal process and subsequent settlement. It was only after its assets were auctioned that the funds were raised. Chang Guann Chairman Yeh Wen-hsiang was sentenced to 22 years in jail with five years commutable to a fine by the Taiwan High Court in 2016 for fraud and violating the Act Governing Food Safety and Sanitation, a verdict upheld by the Supreme Court in September 2017. Chang Guann General Manager Tai Chi-chuan was given 18 years in prison, with four years commutable to a fine. [GN] CHESAPEAKE BAY: Faces "Honeywell" Suit in M.D. Florida ------------------------------------------------------ A class action lawsuit has been filed against Chesapeake Bay Hotel LLC. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. Chesapeake Bay Hotel LLC, a Virginia limited liability company, Defendant, Case No. 2:18-cv-00490-SPC-CM (M.D. Fla., July 12, 2018). Chesapeake Bay resorts provide opportunities to relax.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com COMMONWEALTH BANK: Investors File Class Action in Australia ----------------------------------------------------------- Garima Chitkara, writing for Regulation Asia, reports that the Commonwealth Bank of Australia is being sued by a class of investors backed by large institutional investors in Australia, Europe and North America for disclosure failures that artificially inflated the bank's share price. [GN] DCT INDUSTRIAL: Faces Class Action Over Proposed Prologis Merger ---------------------------------------------------------------- Gainey McKenna & Egleston on July 3 disclosed that a class action lawsuit has been filed against DCT Industrial, Inc. ("DCT" or the "Company") (NYSE:DCT) on behalf of a class consisting of all public stockholders of DCT who have been harmed by DCT and its board of directors (the "Board") in connection with alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") pertaining to the proposed acquisition of the Company by Prologis, Inc. ("Prologis") and its controlled entity, Prologis, L.P. ("Prologis OP"). On April 29, 2018, DCT's Board caused the Company to enter into an agreement and plan of merger (the "Merger Agreement") with Prologis and Prologis OP. Pursuant to the terms of the Merger Agreement, if the proposed transaction is approved by DCT's shareholders and completed, they will receive 1.02 shares of Prologis common stock for each share of DCT they own. On June 8, 2018, the Company filed a Form S-4 Registration Statement (the "Registration Statement") with the United States Securities and Exchange Commission ("SEC") in connection with the Proposed Transaction. The Complaint alleges that the Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] DENTAL EQUITIES: TCPA Suit Stayed Pending FCC Declaratory Ruling ---------------------------------------------------------------- In the case, SCOMA CHIROPRACTIC, P.A., a Florida corporation, individually and as the representative of a class of similarly- situated persons, WILLIAM P. GRESS, an Illinois resident, individually and as the representatives of a class similarly- situated persons, and FLORENCE MUSSAT M.D., S.C., an Illinois service corporation, Plaintiffs, v. DENTAL EQUITIES, LLC, JOHN DOES (1-10), FIRST ARKANSAS BANK & TRUST, and MASTERCARD INTERNATIONAL INCORPORATED, a Delaware corporation, Defendants/Third Party Plaintiff, PEER EQUITIES, LLC, Third Party Defendant, Case No. 2:16-cv-41-FtM-99MRM (M.D. Fla.), Judge John E. Steele of the U.S. District Court for the Middle District of Florida, Fort Myers Division, granted Mastercard's Motion to Stay Proceedings pending a decision by the Federal Communication Commission ("FCC") filed on May 11, 2018. This is a junk fax case. On Sept. 26, 2016, the Plaintiffs, three medical providers, filed a Third Amended Class Action Complaint against Dental Equities, First Arkansas Bank & Trust, MasterCard International Inc., and John Does 1-10. The one-count Complaint alleges that the Defendants violated the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Protection Act of 2005, by sending the Plaintiff (and others) unsolicited commercial advertisements by facsimile machine beginning in December of 2015. The junk faxes the Plaintiffs received invites recipients who are medical providers to apply for a DoctorsClub MasterCard, and did not include certain opt-out language that the Plaintiffs argue is required by the TCPA. The junk faxes included a picture of the DoctorsClub credit card, which bears the MasterCard logo. The Plaintiffs allege on information and belief that MasterCard entered into an agreement with one or more of the other Defendants to permit the credit card to carry the MasterCard brand for which MasterCard was to receive part of the revenue from the card's use. They state that MasterCard provided substantial money to Dental Equities to market the card, and that MasterCard paid for, knew of, and permitted the fax broadcasting at issue in this case. They plead that MasterCard is a responsible party under the TCPA because MasterCard benefited from, or would benefit from, the fax marketing of the credit card and provided the funds for the fax advertising to take place. Because Plaintiff Florence Mussat, M.D., S.C. (and potentially other class members) used an online fax service to receive the fax at issue, MasterCard moves to stay the proceedings under the primary jurisdiction doctrine pending a decision by the FCC on the Petition for Expedited Declaratory Ruling of AmeriFactors Financial Group, LLC, CG Docket Nos. 02-278, 05-338, filed July 13, 2017. In the AmeriFactors Petition, AmeriFactors Financial Group has sought an expedited declaratory ruling from the FCC as to whether online fax services fit within the scope of telephone facsimile machines ("TFMs") under the TCPA. MasterCard argues that if the AmeriFactors Petition is granted, users of online fax services such as Mussat and others would not be proper class members, either negating plaintiffs' attempt to certify a Rule 23 class or drastically reducing the size of the class. Discovery has closed, and the Plaintiffs moved for class certification on May 14, 2018, seeking to certify a nationwide class of 381,011 persons. The Plaintiffs respond that the FCC has already determined the issues raised by the AmeriFactors Petition and that a wholesale change in the FCC's regulatory framework as to how TFMs are defined would not have retroactive effect on the faxes at issue in the case, citing Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208-09 (1988). They also argue that a stay would likely last several years. Judge Steele finds that a stay will simplify and streamline the issues raised in the case and reduce the burden of litigation on the parties and on the Court. Any delay the Plaintiffs will experience in the case is outweighed by the potential prejudice that could inure to MasterCard and its liability to class members that might very well not fit within the proposed class following the FCC's decision. The Judge will stay the case pending resolution of AmeriFactors Petition by the FCC, and because the FCC's decision could substantially affect the substance of the Plaintiff's Motion for Class Certification, he will deny the Motion for Class Certification without prejudice to be re-filed once the stay is lifted. Moreover, the parties' experts have dueling opinions regarding the technology used by online fax services; therefore, he will deny Mastercard's request to file a sur-rebuttal report without prejudice to re-filing as the FCC's conclusions may affect the experts' opinions. Accordingly, Judge Steele granted Defendant Mastercard's Motion to Stay Proceedings. He stayed case and directed the Clerk to add a stay flag. The stay shall remain in effect until such time as the FCC issues a decision on the Petition for Expedited Declaratory Ruling of AmeriFactors Financial Group. Mastercard is directed to file a notice with the Court when the FCC reaches a decision. Once the stay is lifted, the parties should also propose a briefing schedule for class certification and inform the Court whether the remaining case deadlines remain feasible. The Judge denied without prejudice the Plaintiff's Motion to Certify Class, and the Defendant's Motion for Leave to File Sur- Rebuttal Report. He denied as moot the Defendant's Motion to Stay Briefing and the Motions for Leave to File Replies. A full-text copy of the Court's June 1, 2018 Opinion and Order is available at https://is.gd/YRyK4I from Leagle.com. Scoma Chiropractic, P.A., a Florida corporation, individually and as the representative of a class of similarly-situated persons, William P. Gress, an Illinois resident, individually and as the representatives of a class similarly-situated persons & Florence Mussat M.D., S.C., an Illinois service corporation, Plaintiffs, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, pro hac vice, Curtis Charles Warner -- cwarner@warnerlawllc.com -- Warner Law Firm, LLC, pro hac vice, Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, pro hac vice, Heather A. Kolbus, Edelman, Combs, Latturner & Goodwin, LLC, Roy W. Foxall, Law Office of Roy W. Foxall, PA, Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca & Ross M. Good -- rgood@andersonwanca.com -- Anderson & Wanca, pro hac vice. Mastercard International Incorporated, a Delaware corporation, Defendant, represented by Christopher G. Karagheuzoff -- karagheuzoff.christopher@dorsey.com -- Dorsey & Whitney, LLP, pro hac vice, Jonathan Montcalm -- montcalm.jonathan@dorsey.com -- Dorsey & Whitney, LLP, Michelle Diaz Cofino -- michelle.cofino@qpwblaw.com -- Quintairos, Prieto, Wood & Boyer, PA & Reginald John Clyne -- reginald.clyne@qpwblaw.com -- Quintairos, Prieto, Wood & Boyer, PA. Mastercard International Incorporated, a Delaware corporation, Third Party Plaintiff, represented by Christopher G. Karagheuzoff, Dorsey & Whitney, LLP, pro hac vice, Jonathan Montcalm, Dorsey & Whitney, LLP & Reginald John Clyne, Quintairos, Prieto, Wood & Boyer, PA. Mastercard International Incorporated, a Delaware corporation, Cross Claimant, represented by Christopher G. Karagheuzoff, Dorsey & Whitney, LLP, pro hac vice, Jonathan Montcalm, Dorsey & Whitney, LLP & Reginald John Clyne, Quintairos, Prieto, Wood & Boyer, PA. DETROIT, MI: Judge Dismisses Public School Students' Class Action ----------------------------------------------------------------- Jacey Fortin, writing for The New York Times, reports that do students at poorly performing schools have a constitutional right to a better education? On June 29, a Federal District Court judge in Michigan decided that they did not when he dismissed a class-action lawsuit filed by students at troubled schools in Detroit. The suit, filed in September 2016, argued that students at some of the city's most underperforming schools -- serving mostly racial minorities -- had been denied "access to literacy" because of underfunding, mismanagement and discrimination. The complaint described schools that were overcrowded with students but lacking in teachers; courses without basic resources like books and pencils; and classrooms that were bitingly cold in the winter, stiflingly hot in the summer and infested with rats and insects. Conditions like those, the lawsuit said, contributed to dismal test scores and left students woefully underprepared for life after high school. [GN] DR PEPPER: Faces Class Action Over Canada Dry Ginger Ale Labeling ----------------------------------------------------------------- Aidan Quigley, writing for Dallas News, reports that Plano-based Dr Pepper Snapple Group, Inc. is being accused of falsely labeling its Canada Dry Ginger Ale by saying it is "made from real ginger." A lawsuit filed on June 30 in Massachusetts federal court follows a judge's decision to allow a similar lawsuit to move forward in California. Canada Dry's labeling includes the claim that it is "Made From Real Ginger." The lawsuits allege this leads consumers to believe they are receiving the health benefits of ginger. In reality, the product is made with a ginger extract that includes less than two parts per million of any ginger compounds in the final product, the Massachusetts lawsuit states. This advertising played a role in Canada Dry's sustained commercial success while overall soda sales have dropped, the lawsuits allege. In the six months of adding "Made From Real Ginger" to the label, sales increased by almost 9 percent, the lawsuit says. Dr Pepper Snapple Group's market research attributed this partially to consumer belief it is healthier than regular soda, the lawsuit states. A federal judge allowed the California class action lawsuit to proceed on June 26, granting the plaintiff's motion for class certification. In that lawsuit, the plaintiffs, Californians Jackie Fitzhenry- Russell and Geghman Margaryan, allege that the "Made From Real Ginger" claim affected their purchasing decisions. Mr. Margaryan bought Canada Dry once while believing it was made from real ginger, while Ms. Fitzhenry-Russell was a frequent purchaser of Canada Dry and said if she knew it was not made from real ginger, she would not have purchased it or would have paid less for it. The Massachusetts plaintiff, Sam Fisher, said in the lawsuit he believed Canada Dry was a healthier alternative to regular soda based on the label. The soft drink maker decided in 2007 that it needed to market Canada Dry as healthier than other sodas, according to the Massachusetts lawsuit. However, the company's internal research found that two out of three consumers did not believe Canada Dry included any real ginger, according to the lawsuit. While the company did consider adding real ginger, it didn't want to jeopardize changing the taste, and decided instead to market the product differently, the lawsuit states. Sales increased as a direct result from the reformed marketing, according to the lawsuit. A third class-action lawsuit making similar claims is also pending in California. Dr Pepper Snapple Group declined to comment on the pending litigation. Lawyers for Mr. Fisher, Ms. Fitzhenry-Russell and Mr. Margaryan did not immediately return requests for comment. [GN] DR PEPPER: Summary Judgment Bid in Stockholders Suit OK'd --------------------------------------------------------- In the case, CITY OF NORTH MIAMI BEACH GENERAL EMPLOYEES' RETIREMENT PLAN and MAITLAND POLICE OFFICERS AND FIREFIGHTERS RETIREMENT TRUST, on behalf of themselves and all other similarly situated stockholders of Dr Pepper Snapple Group, Inc., Plaintiffs, v. DR PEPPER SNAPPLE GROUP, INC., MAPLE PARENT HOLDINGS CORP., SALT MERGER SUB, INC., LARRY YOUNG, DAVID E. ALEXANDER, ANTONIO CARRILLO, JOSê M. GUTIêRREZ, PAMELA H. PATSLEY, RONALD G. ROGERS, WAYNE R. SANDERS, DUNIA A. SHIVE, and M. ANNE SZOSTAK, Defendants, C.A. No. 2018-0227-AGB (Del. Ch.), Judge Andre G. Bouchard of the Court of Chancery of Delaware (i) granted the Defendants' motions for summary judgment, and (ii) denied the Plaintiffs' motion for summary judgment. Earlier this year, Dr Pepper and Keurig Green Mountain, Inc. announced an agreement to combine their businesses to create a more diversified beverage company. The transaction is structured so that Keurig will become an indirect wholly-owned subsidiary of Dr Pepper through a reverse triangular merger. Dr Pepper stockholders will receive $103.75 per share in a special cash dividend and will retain their shares of Dr Pepper, which will account for 13% of the shares of the combined company. The indirect owners of Keurig will receive shares of Dr Pepper and will hold the remaining 87% of the equity of the combined company. Dr Pepper stockholders are not being asked to approve the merger, which combines a merger subsidiary of Dr Pepper with the parent of Keurig. But they are being asked to approve two proposals necessary to effectuate the transaction at a stockholders meeting scheduled for June 29, 2018. On March 8, 2018, Dr Pepper issued a preliminary proxy statement for the stockholders meeting. It states that Dr Pepper stockholders will not have appraisal rights under Section 262 of the Delaware General Corporation Law in connection with the proposed transaction. That filing prompted two stockholder Plaintiffs to file the action in which they assert that Dr Pepper stockholders "ought" to be afforded appraisal rights in connection with the proposed transaction. The parties agree that the action concerns a purely legal question concerning the availability of appraisal rights under Section 262. They have filed cross-motions for summary judgment on May 1, 2018, requesting a decision before the upcoming stockholders meeting. Briefing was completed on May 18, 2018, and the Court heard argument on the motions on May 25, 2018. Section 262 affords stockholders of Delaware corporations a statutory remedy for appraisal of their shares in certain defined circumstances. Relevant here, Section 262(b) expressly provides that appraisal rights will be available only for the shares of stock of a "constituent corporation" in a merger or consolidation to be effected pursuant to certain provisions of the General Corporation Law. The three-step process for determining a stockholder's entitlement to appraisal under Section 262(b) also contemplates that the stockholder will relinquish its shares in the merger or consolidation. Judge Bouchard holds that the term "constituent corporation" as used in Section 262 means an entity actually being merged or combined and not the parent of such an entity. Based on that construction, he concludes that Dr Pepper's stockholders do not have a statutory right to appraisal under Section 262(b) because Dr Pepper is not a constituent corporation. Instead, Dr Pepper is simply the parent of one of the two corporations that will be merged in connection with the proposed transaction. As a second ground for its decision, the court concludes that Dr Pepper stockholders are not entitled to appraisal because they are retaining their shares in connection with the proposed transaction. This type of transaction does not fit the statutory scheme of Section 262(b), which contemplates that the shares for which appraisal is sought will be relinquished in a merger or consolidation. Based on these conclusions, Judge Bouchard (i) granted the Defendants' motions for summary judgment, and (ii) denied the Plaintiffs' motion for summary judgment. A full-text copy of the Court's June 1, 2018 Opinion is available at https://is.gd/O2RO6 from Leagle.com. Michael J. Barry, Jeff A. Almeida -- jalmeida@gelaw.com -- and Laina M. Herbert -- lherbert@gelaw.com -- of GRANT & EISENHOFER P.A., Wilmington, Delaware; Mark Lebovitch -- markl@blbglaw.com - - and John Vielandi -- john.vielandi@blbglaw.com -- of BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP, New York, New York; Counsel for Plaintiffs. S. Mark Hurd -- shurd@mnat.com -- Melissa A. DiVincenzo -- mdivincenzo@mnat.com -- Eric S. Klinger-Wilensky -- ekwilensky@mnat.com -- and Alexandra Cumings -- acumings@mnat.com -- of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Brian A. Herman -- brian.herman@morganlewis.com -- of MORGAN, LEWIS & BOCKIUS LLP, New York, New York; Jason H. Wilson -- jason.wilson@morganlewis.com -- of MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania; Counsel for Defendants Dr Pepper Snapple Group, Inc., Salt Merger Sub, Inc., Larry Young, David E. Alexander, Antonio Carrillo, JosÇ M. GutiÇrrez, Pamela H. Patsley, Ronald G. Rogers, Wayne R. Sanders, Dunia A. Shive, and M. Anne Szostak. Paul J. Lockwood -- paul.lockwood@skadden.com -- Joseph O. Larkin -- joseph.larkin@skadden.com -- Sarah R. Martin -- sarah.martin@skadden.com -- Alyssa S. O'Connell -- alyssa.schwartz@skadden.com -- and Michelle L. Davis -- michelle.davis@skadden.com -- of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Counsel for Defendant Maple Parent Holdings Corp. DRYBAR HOLDINGS: Faces "Rodriguez" Suit in California Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Drybar Holdings, LLC. The case is styled as Aracely Rodriguez, an individual and on behalf of herself and all other similarly situated, Plaintiff v. Drybar Holdings, LLC a limited liability company and Does 1 through 10 inclusive, Defendants, Case No. CGC18568067 (Cal. Super. Ct., July 12, 2018). Drybar is a California-based chain of salons that solely provides a hair styling service, known as "blowouts." The company was founded in 2008 by Alli Webb.[BN] The Plaintiff appears PRO SE. EXECUTIVE CARE: Faces "MMatzura" Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Executive Care Franchising, LLC. The case is styled as Steven Matzura, on behalf of himself and all others similarly situated, Plaintiff v. Executive Care Franchising, LLC, Defendant, Case No. 11:18-cv- 06338 (S.D. N.Y., July 12, 2018). Executive Care is an affordable alternative to assisted living facilities and nursing homes.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal FCA US: Tentative Ruling Denying "Victorino" Class Cert. Issued --------------------------------------------------------------- In the case, CARLOS VICTORINO and ADAM TAVITIAN, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, v. FCA US LLC, a Delaware limited liability company, Defendant, Case No. 16cv1617-GPC(JLB)(S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California has issued a tentative ruling denying the Plaintiffs' amended motion for class certification in advance of the hearing. Victorino and Tavitian filed a putative first amended class action complaint based on defects in the 2013-2016 Dodge Dart vehicles equipped with a Fiat C635 manual transmission that cause their vehicles' clutches to fail and stick to the floor against Defendant FCA, the manufacturer of these vehicles, including the Plaintiffs' vehicles. In their amended motion for class certification, the Plaintiffs claim a design defect in the 2013- 2015 Dodge Dart vehicles equipped with a Fiat C635 manual transmission built on or before Nov. 12, 2014. The Plaintiffs claim the hydraulic clutch system is defective where the clutch pedal loses pressure, sticks to the floor, and fails to engage/disengage gears. As a result, the Class Vehicles exhibit stalling, failure to accelerate, and premature failure of the Clutch System's components, including the clutch master cylinder and reservoir hose, clutch slave cylinder and release bearing, clutch disc, pressure plate, and flywheel. The Plaintiffs allege two separate defects in the Clutch System. First, the clutch defect is caused by the degradation of the clutch reservoir hose, which releases plasticizer and fibers, causing contamination of the hydraulic fluid that bathes the components of the Clutch System. As a result, the contamination causes the internal and external seals of the clutch master cylinder ("CMC") and clutch slave cylinder ("CSC") to swell and fail. According to them, when fluid in the hydraulic system becomes contaminated, all of the components that have been exposed to the contaminated fluid must be replaced and any steel tubing must also be thoroughly cleaned with brake cleaner and blown out until dry to ensure that none of the contaminants remain. Second, they claim an additional defect in the CSC which exacerbates the problems with the Clutch System. FCA designed its CSC as an assembly composed of an aluminum body with a clipped-on plastic base whereas other manufacturers' slave cylinders are composed of a single, solid cast aluminum component which creates a rigid base. The Defendant's two-piece design destabilizes the cylinder at its base, which can result in unintended lateral movement and cause the piston inside the cylinder to become jammed. On Jan. 8, 2016, FCA implemented a voluntary customer service action, Service Bulletin 06-001-16 entitled "Clutch Pedal Operation X62 Extended Warranty" to address the issue of the contaminated hydraulic fluid caused by the degradation of the clutch reservoir hose and involved the replacement of the hydraulic clutch master cylinder and reservoir hose for the 2013- 2015 Dodge Dart vehicles. In the litigation, the Plaintiffs claim that the X62 Extended Warranty repair failed to fully address and repair the defect and ignores the systemic effect of the contaminated hydraulic fluid. According to them, any repair requires replacement of all component parts, including the CSC, thorough cleaning of any steel tubing with brake cleaner and drying before reassembly. The FAC alleged five causes of action for violations of California's Consumer Legal Remedies Act ("CLRA"), California's unfair competition law ("UCL"), breach of implied warranty pursuant to Song-Beverly Consumer Warranty Act, breach of implied warranty pursuant to the Magnuson-Moss Warranty Act ("MMWA"), and unjust enrichment. After the Court's ruling on the Defendant's motion for summary judgment and subsequent motion for reconsideration, the remaining causes of action are the breach of implied warranty of merchantability under the Song-Beverly Act, the MMWA, and a UCL claim premised on the breach of implied warranty claims. Because the Court's ruling on reconsideration was filed after the motion for class certification and opposition were filed and addresses the CLRA and related claims, the Court only addresses the issues as it relates to the state and federal claims for a breach of implied warranty of merchantability as well as the UCL claim. The Plaintiffs seek to certify the following: a. Nationwide Implied Warranty Class to include, All persons in the United States or its territories who purchased or leased, from an authorized dealership, a Dart Vehicle. b. California Implied Warranty Class to include, All persons who purchased or leased in California, from an authorized dealership, a Dart Vehicle. c. Injunctive Relief Class to include, All persons in California who purchased or leased, from an authorized dealership, a Dart Vehicle. Judge Curiel concludes Rule 23(a) factors have been met with the exception that the adequacy of Tavitian has not been satisfied under Rule 23(a). Because the Plaintiffs have not met their initial burden of demonstrating that due process is satisfied for purposes of a nationwide class, they cannot demonstrate that common issues predominate over the different questions posed by each state's law. Accordingly, he denied the Plaintiffs' motion to certify a Nationwide Implied Warranty Class. Because the Plaintiffs have not set forth a damages model that is consistent with their theory of liability, the Judge finds that predominance has not been met as to damages under Civil Code section 1794 and the benefit of the bargain model. As to merchantability, the Judge finds that the Plaintiffs have not demonstrated that the Song-Beverly Act applies to the class members' purchase of used vehicles from authorized dealerships for breach of implied warranty. Thus, the class is overbroad because the class definition includes purchasers of used vehicles from authorized dealerships. Therefore, questions of fact common to the class members do not predominate. He concludes that the Plaintiffs have failed to demonstrate the predominance factor. Because the Plaintiffs have not met the predominance factor, the Judge needs not address superiority. The Judge also finds that the Plaintiffs have failed to demonstrate that a Rule 23(b)(2) class may be certified. Thus, he denied the Plaintiffs' motion to certify a class under Rule 23(b)(2). Finally, the Defendant filed evidentiary objections to the Plaintiffs' amended motion for class certification to Victorino's and Tavitian's recent declarations dated April 5, 2018 that contradict their deposition testimony taken in April 2017. FCA also objects to Exhibit Z to D'Aunoy's declaration. The Judge notes that the sham affidavit rule that FCA relies on for exclusion addresses evidentiary objections in summary judgment motions, not motions for class certification. Since the Court is ruling on a motion for class certification, the sham affidavit rule is not applicable. Nonetheless, the Court may consider inadmissible evidence on class certification. Accordingly, the Judge overrules the Defendant's evidentiary objections. The counsel are advised that Judge Curiel's rulings are tentative and will entertain additional arguments at the hearing. A full-text copy of the Court's June 1, 2018 Tentative Ruling is available at https://is.gd/6WvHle from Leagle.com. Carlos Victorino, individually, and on behalf of a class of similarly situated individuals & Adam Tavitian, individually, and on behalf of a class of similarly situated individuals, Plaintiffs, represented by Cody R. Padgett -- Cody.Padgett@CapstoneLawyers.com -- Capstone Law APC, Jordan L. Lurie -- Jordan.Lurie@CapstoneLawyers.com -- Capstone Law, APC, Robert Kenneth Friedl -- Robert.Friedl@CapstoneLawyers.com -- Capstone Law APC & Tarek H. Zohdy -- Tarek.Zohdy@CapstoneLawyers.com -- Capstone Law APC. FCA US LLC, a Delaware limited liability company, Defendant, represented by Kathleen Ann Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Scott H. Morgan -- smorgan@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Stephen Anthony D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Thomas L. Azar, Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, William M. Low, Higgs Fletcher & Mack LLP & Edwin Mendelson Boniske -- boniske@higgslaw.com -- Higgs Fletcher & Mack, LLP. FIRSTSOURCE ADVANTAGE: Faces "Jang" Suit in D. New Jersey --------------------------------------------------------- A class action lawsuit has been filed against Firstsource Advantage, LLC. The case is styled as Young S. Jang, individually and on behalf of all others similarly situated, Plaintiff v. Firstsource Advantage, LLC, Defendant, Case No. 2:18-cv-11560 (D. N.J., July 12, 2018). Firstsource Advantage, LLC offers collections and recovery solutions. It provides debt recovery services for credit card issuers, retail banking and mortgage. Firstsource Advantage, LLC was formerly known as Firstsource LLC and changed its name in February, 2007. The company was founded in 1995 and is based in Amherst, New York. As of October 8, 2004, Firstsource Advantage, LLC operates as a subsidiary of Firstsource Solutions Limited.[BN] The Plaintiff appears PRO SE. FOOT LOCKER: Wins Summary Judgment Bid in "Zelaya" -------------------------------------------------- In the case, NELLY ZELAYA, on behalf of herself, all others similarly situated, Plaintiff, v. FOOT LOCKER, INC., et al., Defendants, Case No. 5:17-cv-03279-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted Foot Locker's Motion for Summary Judgment. Zelaya worked at a store owned by Defendants Foot Locker, Foot Locker Retail, Inc., Foot Locker Corporate Services, Inc. and Foot Locker Specialty, Inc. She alleges in this putative class action that Foot Locker required her to sign a consent form during the employment application process which violated the Fair Credit Reporting Act ("FCRA") and other related California statutes. She also alleges that the Defendants' records admittedly indicate that they have conducted a background check on the Plaintiff based on the Consent Form. Foot Locker removed the action from Santa Clara County Superior Court on June 7, 2017. The Plaintiff asserts five causes of action: two for violations of the FCRA, one for violation of the Investigative Consumer Reporting Agencies Act ("ICRAA"), one for violation of the Consumer Credit Reporting Agencies Act ("CCRAA"), and one under the Unfair Competition Law ("UCL"). Foot Locker filed an Answer to the Complaint on June 14, 2017. Presently before the Court is Foot Locker's Motion for Summary Judgment on all of the Plaintiff's causes of action. Foot Locker argues Plaintiff cannot establish Article III standing under the FCRA because she did not suffer any damages as a result of the Consent Form's alleged defects. The Plaintiff opposes the motion. The parties argued the matter on May 24, 2018. Judge Davila finds that the Plaintiff alleges Foot Locker required her to sign a form which violated the FCRA because it contained extraneous information not permitted by statute, such as jurisdiction-specific statements and a liability release. This allegation is sufficient to infer that the Plaintiff was deprived of the right to information and the right to privacy guaranteed by the employment disclosure provisions of the FCRA. Drawing all reasonable inferences in the Plaintiff's favor, the Judge logically infers that the Plaintiff was confused by the inclusion of the liability waiver with the disclosure and would not have signed it had it contained a sufficiently clear disclosure, as required in the statute. Thus, the Plaintiff has sufficiently alleged the invasion of a legally protected interest that is actual and concrete for standing purposes. The Judge also finds that there is no dispute of material fact that Foot Locker did not procure a "consumer report" for "employment purposes" during the "onboarding" process. Because the procurement of a consumer report is a precursor to liability under Sections 1681b and 1681d, the Plaintiff cannot prove her causes of action under the FCRA. Nor can Plaintiff prove her claims under the ICRAA or the CCRAA. Even if there is some distinction between these state authorities and the FCRA, the definition of "employment purposes" is consistent among all of them. Thus, for the same reasons explained with respect to the FCRA, the Plaintiff cannot show Foot Locker obtained a consumer report for "employment purposes" under the ICRAA or the CCRAA. The motion for summary judgment will be granted as to the first four causes of action. Finally, the Judge finds that the Plaintiff's UCL claim falls under the "unlawful" prong, which borrows violations of other laws and treats them as independently actionable. Since it is "tethered" to the consumer reporting claims, this claim falls along with them. Foot Locker is therefore entitled to summary judgment on the UCL claim. Based on this, Judge Davila granted Foot Locker's Motion for Summary Judgment in its entirety. Since the Order effectively resolves the action, judgment will be entered in favor of Foot Locker and the Clerk shall close the file. A full-text copy of the Court's June 1, 2018 Order is available at https://is.gd/XliSOI from Leagle.com. Nelly Zelaya, Plaintiff, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group. Foot Locker, Inc., a New York corporation, Defendant, represented by Amir M. Nassihi -- anassihi@shb.com -- Shook Hardy & Bacon L.L.P., Elizabeth Anne Lee -- elee@shb.com -- Shook, Hardy Bacon L.L.P. & Katherine Sinatra -- ksinatra@shb.com -- Shook Hardy Bacon. Foot Locker Retail Inc., a New York corporation, Foot Locker Specialty Inc., a New York corporation & Foot Locker Corporate Services, Inc., a Delaware corporation, Defendants, represented by Amir M. Nassihi, Shook Hardy & Bacon L.L.P., Katherine Sinatra, Shook Hardy Bacon, pro hac vice, William C. Martucci -- wmartucci@shb.com -- Shook, Hardy and Bacon LLP, pro hac vice & Elizabeth Anne Lee, Shook, Hardy Bacon L.L.P.. GENERAL MOTORS: Court Narrows Claims in "Hindsman" Suit ------------------------------------------------------- In the case, RYAN HINDSMAN, et al., Plaintiffs, v. GENERAL MOTORS LLC, Defendant, Case No. 17-cv-05337-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted GM's 12(b)(6) motion to dismiss with leave to amend, except as to the Special Coverage Adjustment express warranty claims brought by Plaintiffs Hindsman, James Andrews, and Diana Miranda. The suit concerns GM's 2010-2017 Chevrolet Equinox 2.4-liter engine vehicles. Five named Plaintiffs bring the action in November 2017 on behalf of a nationwide class and a California sub-class alleging federal and state express warranty claims, California implied warranty claims, and California consumer and tort law claims against GM. They allege that certain of GM's Chevy Equinox 2.4-liter engine vehicles suffer from an oil consumption defect that GM misled consumers about and refused to repair under applicable warranties. The Plaintiffs are California citizens. Their Vehicles were designed, manufactured, sold, distributed, advertised, marketed, and warranted by GM with a New Limited Warranty. None of them have seen low oil level or pressure indicators illuminate in their Vehicles Now pending is GM's motion to dismiss for (1) failure to state a claim under Federal Rules of Civil Procedure 12(b)(6), (2) lack of subject matter jurisdiction under Federal Rules of Civil Procedure 12(b)(1), and (3) lack of personal jurisdiction under Federal Rules of Civil Procedure 12(b)(2). After GM filed a motion to dismiss, the Parties stipulated to allow the Plaintiffs to amend their complaint. The Plaintiffs' First Amended Complaint ("FAC") alleges five claims on behalf of a putative class: two claims for a proposed nationwide class (1) breach of express warranty under the Magnuson-Moss Warranty Act, and (2) breach of express warranty under state common laws; and three claims for a proposed California sub-class (3) violation of California's Consumers Legal Remedies Act; (4) violation of California's unfair competition law; and (5) breach of implied warranties under the California's Song-Beverly Consumer Warranty Act. The Plaintiffs attached to their FAC the May 2017 GM Notice Letter to Mr. Andrews, Mr. Andrews' correspondence with GM, the Plaintiffs' attorney's declaration regarding venue, and the July 2015 Service Bulletin as Exhibits 1 through 4 respectively. Magistrate Judge Corley finds that the New Vehicle Limited Warranties cover defects in materials and workmanship, not design defects. As the Plaintiffs have not pled facts that plausibly suggest the Oil Consumption Defect is a materials or workmanship defect, she granted tge the motion to dismiss the First and Fifth Causes of Action to the extent they are premised on the New Vehicle Limited Warranties. An additional ground for dismissal is the failure to plead facts that plausibly suggest any named Plaintiff requested repair of the Oil Consumption Defect during the New Vehicle Limited Warranty period. The Magistrate Judge also finds that Plaintiffs Hindsman and Andrews have plausibly alleged that they requested repairs of the Oil Consumption Defect within the SCA warranties period but GM refused to perform the repair. Accordingly, she denied the motion to dismiss with respect to the SCAs under the first and fifth causes of action for these Plaintiffs. In all other respects, the motion to dismiss the express warranties claims is granted. As the plaintiffs other than Mr. Andrews and Ms. Miranda have not adequately pled GM's knowledge of the Defect prior to their purchase of their Vehicles, their CLRA and fraudulent prong UCL claims must be dismissed. Mr. Andrews and Ms. Miranda have failed to allege facts that plausibly suggest that they would have been aware of a disclosure of the Defect; thus, the failure to disclose claims of Mr. Andrews and Ms. Miranda must also be dismissed. The Song-Beverly implied warranty claims of Mr. Andrews, Ms. Miranda, and Ms. Maryanski are dismissed without leave to amend as all allege that they purchased used cars. The Magistrate Judge finds that the implied warranty claims of Mr. Hindsman and Ms. Peterson, who purchased new cars, are dismissed with leave to amend. The face of the FAC establishes that the claims are barred by the four-year statute of limitations and Plaintiffs have not sufficiently pled fraudulent concealment or any other basis for tolling. Further, she says the Plaintiffs failed to address GM's argument that they had not sufficiently alleged that their Vehicles were unfit for their intended purpose. Finally, while there may be cases where it is appropriate to proceed with a nationwide class based on the laws of all 50 states without a named Plaintiff from each of those states, this is not one of them. First, the case is a California-centric case. Second, there is no named Plaintiff from any of the other 49 states whose laws are at issue in the First and Fifth Causes of Action. Accordingly, the claims on behalf of non-California consumers are dismissed. For the reasons she explained, Magistrate Judge Corley ruled on GM's motion to dismiss as follows: a. The Plaintiffs' express warranty claims (First and Fifth Causes of Action) as to all five Plaintiffs are dismissed with leave to amend to the extent they are based on the New Vehicle Limited Warranty because they do not allege facts that plausibly suggest their Vehicles suffered from a manufacturing defect, that is, a defect in workmanship or materials. b. The Plaintiffs' express warranty claims (First and Fifth Causes of Action) as to Ms. Peterson, Ms. Miranda and Ms. Maryanski are dismissed with leave to amend to the extent they are based on the SCA. c. The Plaintiffs' failure of essential purpose warranty claim is dismissed with leave to amend. d. The Plaintiffs' UCL and CLRA claims are dismissed with leave to amend. e. The Plaintiffs' Song-Beverly implied warranty claims are dismissed without leave to amend as to Mr. Andrews, Ms. Miranda and Ms. Maryanski and with leave to amend as to Mr. Hindsman and Ms. Peterson. f. The claims on behalf of putative class members from states other than California are dismissed without prejudice. g. Any amended complaint will be filed within 30 days of the date of the Order. A full-text copy of the Court's June 1, 2018 Order is available at https://is.gd/KJXcnI from Leagle.com. Ryan Hindsman, on behalf of himself and all others similarly situated & James Andrews, on behalf of himself and all others similarly situated, Plaintiffs, represented by Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Adam A. Edwards -- adam@gregcolemanlaw.com -- Greg Coleman Law PC, Daniel Kent Bryson -- dan@wbmllp.com -- Whitfield Bryson Mason LLP, pro hac vice, John Hunter Bryson -- hunter@wbmllp.com -- Whitfield Bryson Mason LLP, pro hac vice, Mark E. Silvey, Greg Coleman Law PC, pro hac vice, Theodore Walter Maya -- tmaya@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. & Robert Ahdoot -- RAhdoot@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. Robin Peterson, Diana Miranda & Vanessa Maryanski, Plaintiffs, represented by Robert Ahdoot, Ahdoot & Wolfson, P.C., Theodore Walter Maya, Ahdoot & Wolfson, P.C. & Gregory F. Coleman, Greg Coleman Law PC. General Motors LLC, a Delaware limited liability company, Defendant, represented by Gregory Richard Oxford -- goxford@icclawfirm.com -- Isaacs Clouse Crose & Oxford LLP. GLENCORE PLC: Law Firm Investigates Potential Securities Claims --------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on July 3 announced it is investigating potential securities claims on behalf of shareholders of Glencore plc (OTCMKTS: GLCNF, GLNCY) resulting from allegations that Glencore may have issued materially misleading business information to the investing public. On July 3, 2018, Glencore disclosed that the U.S. Department of Justice issued its subsidiary a subpoena to produce documents and other records in connection with its compliance with U.S. money laundering statutes and the Foreign Corrupt Practices Act. On this news, shares of Glencore have fallen sharply during intraday trading on July 3, 2018. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by Glencore investors. If you purchased shares of Glencore please visit the firm's website at http://www.rosenlegal.com/cases-1373.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] GOODLIFE FITNESS: Judge Okays $7.5MM Class Action Settlement ------------------------------------------------------------ Sara Mojtehedzadeh, writing for The Star, reports that a judge has approved a $7.5 million class action lawsuit settlement, launched after employees of gym giant GoodLife Fitness claimed the company "systematically failed" to accurately compensate them for hours of work and overtime. The suit, originally filed in October 2016 by Toronto-based labour law firm Goldblatt Partners, alleged that the gym did not pay employees for certain kinds of work, such as preparation for classes and seeking out new clients, creating "an unlawful barrier to payment of overtime" at its 166 locations across Ontario. The scope of the suit was later expanded to GoodLife outlets across Canada. Some 22,000 current and former employees are covered by the class action. After the suit was filed, GoodLife made significant changes to its practices, including scheduling paid prospecting time for personal trainers and removing clawbacks on their commissions. It also now pays trainers for preparation and administrative tasks and pays lieu time at time-and-a-half, as required by law, rather than straight time. Acting for Carrie Eklund, a Toronto-based personal trainer and the class action's representative plaintiff, lawyers Charlie Sinclair and Josh Mandryk said at their settlement hearing that GoodLife's payment changes made the claim largely "historical" in nature and paved the way for a settlement agreement. Think you may be impacted? Here are some of your questions answered, as set out by the settlement approved by Superior Court Justice E.M. Morgan on July 3: Who is eligible for payments? All current and former non-managerial staff of GoodLife Fitness clubs across Canada, except Quebec, who worked at the gym during the time period covered by the suit (see below). Fit4Less outlets were not included in the class action. How will the settlement be distributed? The $7.5 million will be allocated as follows: -- $5.5 million will be divided among personal trainers; -- $150,000 for club opening specialists; -- $800,000 for fitness advisers; -- $1,050,000 for all other non-managerial job categories. How much will individuals get? GoodLife will calculate individual payments based on the number of recorded hours worked by each individual during the time period covered by the class action. Here are conservative estimates for individual payments if you worked for the entire time period: -- $2,500 for personal trainers; -- $1,600 for fitness advisers; -- $7,500 to $10,000 for club opening specialists; -- $150 for all other job categories; -- Amounts worth less than $50 will not be paid. Is there a deadline? GoodLife must make the payments within 90 days of the settlement's final approval, which came July 3. If cheques aren't cashed within six months, GoodLife will donate the uncashed funds to the Canadian Cancer Society. How are payments made? If you were non-managerial staff who worked at GoodLife during the time periods set out below, you don't need to do anything to receive payment -- unless you moved and have not updated your contact details with GoodLife. Cheques will be sent automatically to home addresses. The only requirement, where necessary, is to notify GoodLife of a change of address. What time period does the class action cover? -- For personal trainers: Oct. 12, 2014 to Dec. 31, 2017; -- For club opening specialists: Oct. 12, 2014 to March 30, 2017; -- For fitness advisers: Oct. 12, 2014 to Feb. 28, 2018; -- For all other classes of non-managerial employees: from Oct. 12, 2014 to Feb. 28, 2018. What if I work for a unionized GoodLife gym? The period for which you are eligible for compensation ends slightly earlier -- Dec. 5, 2017, the date collective agreements came into effect at unionized GoodLife gyms. For more information visit https://goodlifeclassaction.com/ [GN] GRAIN PROCESSING: July 2 Class Action Jury Trial Date Suspended --------------------------------------------------------------- Meredith Ecklund, writing for Muscatine Journal, reports that the jury trial of the Grain Processing Corporation class action lawsuit scheduled to begin July 2 has been suspended. According to an order filed June 21, "The parties have jointly moved for a two-month stay of the trial schedule so that the parties may continue negotiations begun at the Court-ordered Mediation held on June 1, 2018." The same order states that the issue will be stayed until Aug. 20. If the class and GPC reach a settlement, the appropriate documents must be submitted on or before that date. If a settlement is not reached, parties must agree on additional time for negotiations or determine new deadlines for the jury trial and remaining pre-trial activities, according to the order. If a settlement is reached from these negotiations, class action attorney Sarah Siskind said in an email next steps include court- approval after notice of the settlement and a hearing is set for class members to speak. Both processes would take some time, she said. Class action members will receive notification from class action lawyers. The class action lawsuit against GPC over its plant emissions was certified in May by the Iowa Supreme Court. Around 14,000 area residents, all whom have lived within 1.5 miles of the plant since 2007, are included in the lawsuit. The class cites loss of enjoyment of property and odor from emissions as reasons for seeking compensation. The previous development in the case happened in May, when GPC asked for the dismissal of residents' claims and five separate summary judgment requests. This was in response to Judge John Telleen denying the corporation's initial summary judgment request asking for the dismissal of nuisance, negligence and trespassing claims. The judge, having decided GPC never notified neighboring residents of the emissions, denied the request. The trial was to be held in Muscatine County District Court, but was moved to Scott County District Court ahead of the July 2 trial. The judge decided to move the trial due to GPC's influence in the community. The corporation, established in the 1930s, now employs 1,000 Muscatine residents. Those who opted out of the class action last winter and signed up for a settlement agreement between GPC and a group of lawyers known as the Parry group are unaffected by potential future class action litigation. [GN] HARRIS COUNTY, TX: Prelim Injunction Order in "ODonnell" Vacated ---------------------------------------------------------------- In the case, MARANDA LYNN ODONNELL, Plaintiff-Appellee, v. HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C. FLEMNG; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JEAN HUGHES, Defendants-Appellants. LOETHA SHANTA McGRUDER; ROBERT RYAN FORD, Plaintiffs-Appellees, v. HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ, Defendants-Appellants, Case No. 17-20333 (5th Cir.), Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit affirmed in part the district court's order denying the County's summary judgment motion and granting ODonnell's motion for a preliminary injunction. ODonnell and the other Plaintiffs ("ODonnell") brought a class action suit against Harris County, Texas, and a number of its officials -- including County Judges, Hearing Officers, and the Sheriff ("County") -- under 42 U.S.C. Section 1983. ODonnell alleged the County's system of setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the equal protection and due process clauses of the Fourteenth Amendment. ODonnell moved for a preliminary injunction, and the County moved for summary judgment. After eight days of hearings, at which the parties presented numerous fact and expert witnesses and voluminous written evidence, the district court denied the County's summary judgment motion and granted ODonnell's motion for a preliminary injunction. The County then applied to the Court for a stay of the injunction pending appeal, but the motion was denied, and the injunction went into effect. Before the Court now is the County's appeal, seeking vacatur of the injunction and raising numerous legal challenges: (i) status of County Judges and Sheriff as county policymakers under Section 1983; (ii) Younger v. Harris abstention; (iii) the County's Eighth Amendment argument; and (iv) constitutional claims: due process claim and equal protection. Judge Clement agrees with the County that its Sheriff is not an appropriate party for attaching municipal liability, however. The Sheriff does not have the same policymaking authority as the County Judges. To the contrary, the Sheriff is legally obliged to execute all lawful process and cannot release prisoners committed to jail by a magistrate's warrant. State statutes, in other words, do not authorize the County Sheriff to avoid executing judicial orders imposing secured bail by unilaterally declaring them unconstitutional. Accordingly, the County Sheriff does not qualify as a municipal policymaker under Section 1983. The Judge is not persuaded by the County's argument that Younger abstention precludes the Court's review of ODonnell's claims. As the district court noted, the adequacy of the state court review of bail-setting procedures is essential to ODonnell's federal cause of action. In short, to find that the Plaintiffs have an adequate hearing on their constitutional claim in state court would decide its merits. She also notes that the policy concerns underlying this doctrine are not applicable. The injunction sought by ODonnell seeks to impose nondiscretionary procedural safeguards, which will not require federal intrusion into pre- trial decisions on a case-by-case basis. She also holds that the Court has already concluded that the incarceration of those who cannot pay money bail, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements. ODonnell's present claims do not run afoul of Graham v. Connor. Addressing the merits of ODonnell's constitutional claims, the Judge affirms the court's rulings that the County's bail system violates both due process and equal protection, though he modifies the basis for its conclusion as to due process. The district court's definition of ODonnell's liberty interests is too broad, and the procedural protections it required are too strict. Nevertheless, even under the Court's more forgiving framework, he agrees that the County procedures violate ODonnell's due process rights. Finally, the Judge concludes that the district court abused its discretion in crafting an injunction that was not narrowly tailored to remedy the specific action which gives rise to the order. She will vacate the injunction and remand to allow the court to craft a remedy more finely tuned to address the harm. The following represents the sort of modification that would be appropriate, although he leaves the details to the district court's discretion: With these principles in mind, the Judge will order the following relief, to take effect within 30 days, unless those enjoined move for and show good cause for a reasonable, brief extension. Any motions for extension will be set for prompt hearing and resolution. a. Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties. b. Pretrial Services officers, as County employees and subject to its policies, must verify an arrestee's ability to pay a pre-scheduled financial condition of release by an affidavit, and must explain to arrestees the nature and significance of the verification process. c. The purpose of the explanation is to provide the notice due process requires that a misdemeanor defendant's state constitutional right to be bailable by sufficient sureties is at stake in the proceedings. Pretrial Services may administer either the form of the affidavit currently used to determine eligibility for appointed counsel or the adapted form that Dr. Van Nostrand testified was prepared for Pretrial Services to be administered by July 1, 2017, if they comply with the below guidelines. Pretrial Services must deliver completed affidavits to the Harris County Sheriff's Office before a declarant's probable cause hearing. d. The affidavit must give the misdemeanor arrestee sufficient opportunity to declare under penalty of perjury, after the significance of the information has been explained, the maximum amount of financial security the arrestee would be able to post or pay up front within 24 hours of arrest. The affidavit should ask the arrestee to provide details about their financial situation sufficient to help the County make reliable determinations regarding the amount of bail that would provide sufficient sureties. The question is what amount the arrestee could reasonably pay within 24 hours of his or her arrest, from any source, including the contributions of family and friends. e. The purpose of this requirement is to provide a better, easier, and faster way to get the information needed to determine a misdemeanor defendant's ability to pay. The Hearing Officers and County Judges testified that they presently do not know who has the ability to pay. The affidavit can be completed within 24 hours after arrest; the current process of verifying references by phone extends for days after arrest. f. The court does not order relief against the Hearing Officers or against the County Judges in their judicial or legislative capacities. g. Misdemeanor defendants who are not subject to: (1) formal holds preventing their release from detention; (2) pending mental-health evaluations to determine competency; or (3) pretrial preventive detention orders for violating a condition of release for a crime of family violence, have a constitutionally protected state-created liberty interest in being bailable by sufficient sureties before trial. If a misdemeanor defendant has executed an affidavit showing an inability to pay pre-scheduled money bail and has not been released either: (1) on an unsecured personal bond with nonfinancial conditions of release; or (2) on a secured money bond for which the defendant could pay a commercial surety's premium, as indicated on the affidavit, then the defendant is entitled to a hearing within 48 hours of arrest in which an impartial decision-maker conducts an individual assessment of whether another amount of bail or other condition provides sufficient sureties. At the hearing, the arrestee must have an opportunity to describe evidence in his or her favor, and to respond to evidence described or presented by law enforcement. The Harris County Sheriff is therefore authorized to decline to enforce orders requiring payment of pre-scheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided. All nonfinancial conditions of release ordered by the Hearing Officers will remain in effect. h. The purpose of this requirement is to provide timely protection for the state-created liberty interest in being bailable by sufficient sureties and to prevent the automatic imposition of pre-scheduled bail amounts without an adequate process for ensuring that there is individualized consideration of whether another amount or condition provides sufficient sureties. i. To enforce the 48-hour timeline, the County must make a weekly report to the district court of misdemeanor defendants identified above for whom a timely individual assessment has not been held. The County must also notify the defendant's counsel and/or next of kin of the delay. A pattern of delays might warrant further relief from the district court. Because the court recognizes that the County might need additional time to comply with this requirement, the County may propose a reasonable timeline for doing so. j. The purpose of this requirement is to give timely protection to the state-created liberty interest in being bailable by sufficient sureties by enforcing federal standards indicating that 48 hours is a reasonable timeframe for completing the administrative incidents to arrest. The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention. k. For misdemeanor defendants who are subject to formal holds and who have executed an affidavit showing an inability to pay the pre-scheduled financial condition of release, the Sheriff must treat the limitations period on their holds as beginning to run the earliest of: (1) after the probable cause hearing; or (2) 24 hours after arrest. The purpose of this requirement is to ensure that misdemeanor defendants are not prevented from or delayed in addressing their holds because they are indigent and therefore cannot pay a pre-scheduled financial condition of release. l. Misdemeanor defendants who do not appear competent to execute an affidavit may be evaluated under the procedures set out in the Texas Code of Criminal Procedure Article 16.22. If competence is found, the misdemeanor defendant is covered by the relief the court orders, with the exception that the 48-hour period begins to run from the finding of competence rather than from the time of arrest. As under Article 16.22, nothing in this order prevents the misdemeanor arrestee from being released on secured bail or unsecured personal bond pending the evaluation. For these reasons, Judge Clement affirmed the district court's findings of fact. She affirmed its conclusions of law except its conclusion that the County Sheriff qualifies as a municipal policymaker under Section 1983 and its determination of the specific procedural protections owed under procedural due process. On those issues, she reversed the district court's conclusions. Accordingly, she vacated the the preliminary injunction as overbroad and remanded to the district court to craft a revised injunction -- one that is narrowly tailored to cure the constitutional deficiencies the district court properly identified. But she also stayed the vacatur pending implementation of the revised injunction, so as to maintain a stable status quo. A full-text copy of the Court's June 1, 2018 Opinion is available at https://is.gd/0TenIC from Leagle.com. Charles Justin Cooper -- ccooper@cooperkirk.com -- for Defendant- Appellant. Murray Jules Fogler -- mfogler@fbfog.com -- for Defendant- Appellant. John E. O'Neill, for Defendant-Appellant. Bruce Stephen Powers, for Defendant-Appellant. George Allan Van Fleet, for Defendant-Appellant. Stacy R. Obenhaus -- sobenhaus@foley.com -- for Defendant- Appellant. Carter Glasgow Phillips -- CPHILLIPS@SIDLEY.COM -- for Defendant- Appellant. Neal Manne -- nmanne@SusmanGodfrey.com -- for Plaintiff-Appellee. Sheryl Anne Falk -- sfalk@winston.com -- for Defendant-Appellant. Seth Paul Waxman -- SETH.WAXMAN@WILMERHALE.COM -- for Plaintiff- Appellee. Jonathan Lee Marcus -- jonathan.marcus@skadden.com -- for Plaintiff-Appellee. Mike Anthony Stafford -- mike.stafford@huschblackwell.com -- for Defendant-Appellant. Joseph David Hughes, for Defendant-Appellant. Rebecca Bernhardt -- bernhard.rebecca@dorsey.com -- for Plaintiff-Appellee. Jared Brandon Caplan -- jcaplan@bradley.com -- for Plaintiff- Appellee. Ilya Shapiro -- ishapiro@cato.org -- for Plaintiff-Appellee. Nicole Wignall DeBorde, for Plaintiff-Appellee. Alexandra Giselle White -- lwhite@SusmanGodfrey.com -- for Plaintiff-Appellee. Paul D. Clement -- paul.clement@kirkland.com -- for Plaintiff- Appellee. Thomas Royal Phillips -- tom.phillips@bakerbotts.com -- for Plaintiff-Appellee. IGNITE PAYMENTS: Dismissal of Amended Zam & Zam Suit Affirmed ------------------------------------------------------------- In the case, ZAM & ZAM SUPER MARKET, LLC, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. IGNITE PAYMENTS, LLC, FIRST DATA MERCHANT SERVICES CORPORATION, FIRST DATA MERCHANT SERVICES, LLC, Defendants-Appellees, Case No. 17-3571-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the judgment of the district court dismissing the amended putative class-action complaint. Zam & Zam appeals from the dismissal of its amended putative class-action complaint against the Defendants, asserting breach of the parties' Merchant Processing Application and Agreement and its incorporated Program Terms and Conditions. Zam & Zam alleges that the Defendants, with whom it contracted to process customers' credit and debit card payments, charged it an unauthorized $19.95 monthly fee over a 20-month period for a package of data protection services that Zam & Zam expressly declined when first entering the Agreement. In dismissing the breach of contract claim, the district court concluded inter alia that the Plaintiff's failure to comply with the Agreement's notice-of-claim provision, set forth in Section 19.11 of the Program Guide, bars recovery for any breach of the Agreement. Zam & Zam challenges this ruling on several grounds. The Plaintiff challenges the district court's dismissal of its claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unconscionability, as well as the district court's denial of leave to amend. The Court finds that because Section 19.11 is enforceable and because Zam & Zam failed to plead compliance with the provision's 60-day written notice requirement, it is barred from pursuing its contract claim for unnoticed breaches. Accordingly, it affirmed dismissal of the breach of contract claim. The Court also finds that under New York law, parties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract. The Plaintiff's claim for breach of the implied covenant seeks redress for the same conduct and resulting injury as the breach of contract claim -- namely, the recovery of damages incurred as a result of the Defendants' charging unwanted fees for data protection services. The district court therefore properly dismissed the Plaintiff's breach of implied covenant claim as duplicative. Finally, the district court denied leave to amend on the ground that Zam & Zam failed to identify how it would cure deficiencies in the amended complaint and, moreover, that amendment would be futile. In urging error, Zam & Zam argues primarily that, if provided the opportunity, it could plead compliance with Section 19.11 because it terminated the Agreement in August 2016 and at the same time provided defendants with written notice disputing certain charges from July 2016. Amending the pleadings to include these facts, however, would be futile because Zam & Zam's written notice was effective only as to fees charged in the preceding 60 days and, at the time of termination, the Defendants refunded Zam & Zam $481.61, representing the return of service fees paid from January 2016 through August 2016. Zam & Zam therefore cannot plead damages or the time period not otherwise barred by Section 19.11. As to the remaining claims, Zam & Zam fails to specify how amendment would cure the deficiencies identified in the amended complaint. Accordingly, the Court identifies no error in the district court's denial of leave to amend. The Court has considered the Plaintiff's remaining arguments and concludes that they are without merit. Accordingly, for the reasons stated, it affirmed the judgment of the district court. A full-text copy of the Court's June 1, 2018 Summary Order is available at https://is.gd/jU0jlZ from Leagle.com. ROGER N. HELLER -- rheller@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, California (David S. Stellings -- dstellings@lchb.com -- Avery S. Halfon, Lieff Cabraser Heimann & Bernstein, LLP, New York, New York; E. Adam Webb, Webb, Klase & Lemond, LLC, Atlanta, Georgia, on the brief). Appearing for Appellant. JONATHAN D. POLKES -- jonathan.polkes@weil.com -- (Paul Dutka -- paul.dutka@weil.com -- on the brief), Weil, Gotshal & Manges LLP, New York, New York, Appearing for Appellees. ILLINOIS: Denial of Class Certification in "Morris" Recommended --------------------------------------------------------------- Magistrate Judge Reona J. Daly of the United States District Court for the Southern District of Illinois issued a Report and Recommendation denying Plaintiffs' Motion for Class Certification in the case captioned BARRY MORRIS, Plaintiff, v. JOHN BALDWIN, et al., Defendants, Case No. 17-cv-1033-DRH-RJD (S.D. Ill.). Plaintiff Barry Morris, an inmate in the custody of the Illinois Department of Corrections, filed this lawsuit pursuant to 42 U.S.C. Section 1983 alleging his constitutional rights were violated while he was incarcerated at Menard Correctional Center (Menard). Before a Court can certify a class action, the party seeking certification must show: 1) joinder of all members of the class is impracticable due the number of potential claimants; 2) common questions of law and fact; 3) that the representative parties have typical claims and defenses as to the proposed class as a whole; and 4) the representative parties will fairly and adequately protect the interests of the class. Here, the Plaintiff alleges that he and other ADA inmates with similar disabilities are being denied access to numerous services and activities, but he does not describe the class with any detail other than that the proposed class is "all ADA inmates at Menard as a whole from 2016 forward." The Plaintiff also alleges that the claims have common questions of law and fact as every ADA inmate is being denied access to certain opportunities. However, the ADA requires reasonable accommodations based upon an individual's disabilities. The required accommodations are different for different types of disabilities. Each accommodation request requires a separate consideration and raises different issues of fact. Based on the record before the Court, it cannot determine that class certification would be appropriate at this time. Accordingly, the Magistrate recommends that the Plaintiff's Motion for Certification of the Class be denied. A full-text copy of the District Court's May 31, 2017 Report and Recommendation is available at https://tinyurl.com/ycboheqb from Leagle.com. Barry Morris, Plaintiff, pro se. John Baldwin, Director of IDOC, Illinois Department of Corrections, Jacqueline Lashbrook, Warden of Menard CC, Holly Hawkins, ADA Coordinator & Gail Walls, Health Care Administrator, Defendants, represented by R. Levi Carwile, Illinois Attorney General's Office. Wexford Health Sources Inc., Defendant, represented by Timothy P. Dugan -- tdugan@cassiday.com -- Cassiday Schade LLP & Maxwell D. Huber -- mhuber@cassiday.com -- Cassiday Schade LLP. IOWA: Averts Black Workers' Discrimination Class Action ------------------------------------------------------- The Gazette reports that a federal judge on July 3 revoked supervised release for a woman, who was convicted for embezzling over $43,000 in unemployment insurance benefits, and is sending her back to prison for 18 months. U.S. District Senior Judge Linda Reade said most of the explanations made by Linda F. Pippen, now known as Linda Barnes, 48, of Waterloo, didn't make much sense when she tried to refute the numerous violations that her probation officer testified about during a previous hearing and on July 3. Ms. Pippen pleaded guilty in 2011 to one count of embezzlement from a program receiving federal funds and one count of aggravated identity theft and was sentenced to four years in prison. She was discharged from prison in 2015 and was serving three years on supervised release. Ms. Pippen was also the lead plaintiff in a high profile class action discrimination lawsuit for black workers suing the state. Lawyers filed a motion to drop her from the suit after she pleaded guilty but a judge denied it. The class action didn't go forward and some of the individuals claims were settled by the state or dismissed. During the July 3 hearing, Ms. Pippen wouldn't admit to traveling out of the district and state, which is a violation, when confronted with proof that probation had analyzed her cell phone and could track it in Illinois and North Carolina at different times. She said her boyfriend took her phone and explained the texts where she told people not to tell anybody she was in North Carolina were sent by her boyfriend. Ms. Pippen also wouldn't admit to opening new lines of credit or credit card accounts, which are also violations. Even when Assistant U.S. Attorney Daniel Tvedt had her credit report and questioned her about the accounts. After Ms. Pippen's testimony, Judge Reade bluntly said she didn't believe her. Judge Reade pointed out Ms. Pippen tried to hide some jobs from probation, so her wages wouldn't be garnished since she owes over $41,000 of the embezzled $43,582 in restitution. She also took a job at a tax service, which was a violation because she can't have a job that allowed her access to financial or personal information, Reade noted. [GN] ISRAEL ELECTRIC: Gideon Fisher Attorney Comments on Ruling ---------------------------------------------------------- Adv. Daphna Fisher -- daphna@fisher-lawfirm.com -- of Gideon Fisher & Co. Law Offices and Notary, in an article for Globes, wrote that a Supreme Court ruling on payments to Israel Electric employees passed on to customers, means consumers can receive remedies for unjust government actions. Israel's Supreme Court recently validated its own landmark and precedential ruling in regards to a class action filed against the Israel Electric Corporation (IEC), estimated at NIS 3.5-5 billion, stating essentially that one can file a class action against the law. This high-profile case deals with the rate charged to consumers for electricity by the IEC, a state-owned enterprise that holds a monopoly over the market. The electricity rate is regulated by the government and, in theory, it should only reflect the justified costs directly related to the electricity generation itself, such as production, transmission, distribution and fixed payments for a basket of services. It does not even take into account the electricity consumption, which is charged in an additional separate rate. According to the claimants, the IEC financed supposedly unlawful payments for its employees by including these amounts as part of the costs for electricity production. The IEC responded to the claims, stating, inter alia, that those payments were retroactively authorized by a collective labor agreement which was effectively signed into law by the government, and as such, the payments were legally authorized. The claimants were not deterred and in response, they argued that this retroactive authorization is not enough to justify charging the consumers for those internal payments. It is important to note that this class action does not require the employees to reimburse the money, and the IEC will need to find a new source of income to cover the allegedly unlawful expenses. Be that as it may, the main obstacle in the case was still the fact that the IEC was allegedly protected by law and thus, the pivotal issue of the case was -- can one file a class action against an action authorized by the law? Or to put it in another way -- can a retroactive law remedy a cause for class action? This battle has been taking place for nearly a decade, in both the District Court and on appeal in the Supreme Court of Israel. In a nontraditional move, the Attorney General sided with the IEC rather than with the claimants. However, the claimants won on both legal issues, with the court delivering a precedential ruling, stating that the collective labor agreement, even if approved by law, cannot retroactively grant a shield against litigation. The IEC, backed yet again by the Attorney General's office, tried to make use of the rare procedure of a secondary review of the decision by a wider panel of Supreme Court judges. However, Chief Justice Esther Hayut denied the motion, stating that the case against the IEC is clear cut and basing her ruling on unjust enrichment, among other points. Regardless of the decision, by certifying the class action the court had made quite an earthquake in the field. It had long been assumed that a green light by the government prevented in-court challenges, but in reality, this assumption has been losing its credibility over the years as the courts have applied more and more judicial review on such actions by the regulator where the outcome was unjust to the public. However, there was also a counter-current, such as the supreme court ruling in re: Kol BaRama -- a religious oriented radio station which refused to put women on air. In this case, the court ruled that it is permissible to file a class action against the station, but not for the period of time where it was under close review by the regulator, who had worked to gradually raise the number of women to be heard over the station's broadcasts. The obvious difference here is that the regulator in the Kol BaRama case had worked to fix the problem, whereas the regulator in the IEC case had merely redefined the issue at hand as not a problem. In recognizing the key differences between the Kol BaRama case and the case against the IEC, the court turned the green light given by the government to red, at least for now. This precedential ruling ensures that the consumer public will be able to receive remedies for unjust actions by government entities. As a result, it is to be expected that many more will follow in the footsteps of the claimants in the case against the IEC. [GN] J BRAND: Faces "Olsen" Suit in E.D. New York -------------------------------------------- A class action lawsuit has been filed against J Brand, Inc. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. J Brand, Inc., Defendant, Case No. 1:18-cv-04025 (E.D. N.Y., July 12, 2018). J Brand, Inc. was founded in 2005. The company's line of business includes manufacturing textile products.[BN] The Plaintiff is represented by: Christopher Howard Lowe Lipsky Lowe LLP 630 Third Avenue New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com JB HUNT: Seeks to Decertify Drivers' Wage Class Action ------------------------------------------------------ Linda Chiem, writing for Law360, reports that months away from trial, trucking giant J.B. Hunt Transport Inc. moved on July 2 to slash claims and decertify a California federal class action alleging it shorted drivers on wages and rest breaks, saying there's no proof of a uniform compensation system covering thousands of drivers. Attorneys for J.B. Hunt filed motions for partial summary judgment and to decertify an 11,000-strong class led by plaintiffs Gerardo Ortega and Michael D. Patton as they gear up for an anticipated late September trial. The case is Gerardo Ortega et al v. J. B. Hunt Transport, Inc. et al Case No. 2:07-cv-08336 (C.D. Calif.). The case is assigned to Judge R. Gary Klausner. The case was filed December 27, 2007. [GN] KBR: Veterans' Class Action Over Burn Pits Won't Move Forward ------------------------------------------------------------- Aalia Shaheed, writing for KVOA, reports that Rigo Gonzalez was inspired to join the military after 9/11. He served in Iraq, but it wasn't until he returned home in 2005 that he realized something was very wrong. "My permanent job was with the US Border Patrol," said Mr. Gonzalez. "So I had to take a physical when I came back. And when I came back, I was diagnosed with leukemia." The veteran believes his illness is directly linked to his proximity to open burn pits while in Iraq. Private military contractor, KBR, used the pits to openly burn things like plastic, tires and other waste. "You would just see this black smoke, and I was inhaling all that pollution from the tower," said Mr. Gonzalez. "I'm fortunate enough to have good response to my chemotherapy medication, which I have to take daily for life. Other veterans weren't so lucky and they lost their lives." Mr. Gonzalez was part of a class-action lawsuit against the company, but the appellate court recently decided the case will not go forward. The three-judge panel ruled all decisions regarding burn pits came down to the military, not KBR. It was a crushing blow to tens of thousands of veterans who say their illnesses are linked to the pits. Officials with the Department of Veterans Affairs did establish the 'Airborne Hazards and Open Burn Pit Registry', which allows veterans to document their conditions for future study. But the department has not yet recognized illnesses from burn pits exposure as 'service-related disabilities', which means many who believe they have been impacted are not eligible for coverage. Mr. Gonzalez is now pleading with congressional leaders to pass legislation that will help all those who say they have been affected. "Somebody has to be responsible for this," he said. "What we need is for Congress to step up to help these veterans and to make their lives easier." [GN] KCMCL COCONUT: Faces "Honeywell" Suit in M.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against KCMCL Coconut Point LLC. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. KCMCL Coconut Point LLC, a Florida limited liability company, Defendant, Case No. 2:18-cv-00491-SPC-CM (M.D. Fla., July 12, 2018). Coconut Point is a picturesque outdoor mall featuring over 140 stores.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com KESHAV HOTEL: Faces "Honeywell" Suit in M.D. Florida ---------------------------------------------------- A class action lawsuit has been filed against Keshav Hotel, LLC. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. Keshav Hotel, LLC, a Florida limited liability company, Defendant, Case No. 2:18-cv- 00489-UA-CM (M.D. Fla., July 12, 2018). Keshav Hotel LLC is a privately held company in Estero, FL and is a Single Location business. Categorized under Hotels- Apartment.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com LL BEAN: Judge Tosses Class Action Over Return Policy Change ------------------------------------------------------------ Lori Valigra, writing for BDN, reports that a Chicago man who tried to start a class-action lawsuit against L.L .Bean after the iconic Maine retailer changed its return policy in February has come up empty after a judge ruled in federal court to dismiss the case. U.S. District Court Judge for the Northern District of Illinois Robert W. Gettleman ruled on June 28 that plaintiff Victor Bondi failed to state a claim against L.L. Bean. L.L. Bean filed a motion to dismiss the case on April 6, saying Mr. Bondi had failed to establish that he had suffered a concrete loss or that he had tried to return any product he bought before Feb. 9, 2018, when L.L. Bean announced the changed policy. "L.L.Bean is very pleased with the recent ruling granting our motion to dismiss the Illinois case in its entirety," L.L. Bean spokeswoman Carolyn Beem said in an email to the Bangor Daily News. "As we have maintained from the outset, this suit is without merit and the complaint misstated L.L.Bean's policies. Products purchased prior to Feb. 9, 2018 are not subject to the new one- year restriction on returns," she said. "This plaintiff did not claim to be dissatisfied with his L.L.Bean purchase, was never denied a refund, and therefore has no basis on which to pursue this case." Mr. Bondi filed the 16-page lawsuit on Feb. 12, saying he was a loyal customer who made purchases based on L.L. Bean's unconditional satisfaction guarantee. The proposed class-action lawsuit included more than 100 people seeking at least $5 million in damages, excluding interest and costs. Three other similar lawsuits seeking class-action status and targeting the policy change have not yet been decided. The most recent lawsuit was filed May 4 by William A. Shirley of Berkeley, California. Another was filed Feb. 28 in New York by Anita Berger, and another on April 24 in Massachusetts by Benjamin Pershouse. [GN] LOCK HAVEN: Judge Refuses to Certify Retirement Class Action ------------------------------------------------------------ John Beauge, writing for PennLive, reports that a judge has refused to certify as a class action the federal lawsuit that accuses Lock Haven University of forcing out older employees to avoid paying the retirement benefits they would receive at age 60. U.S. Middle District Judge Matthew W. Brann on July 2 ruled the class action motion of Pattiann Merrifield was premature but that she could refile it after discovery is completed. However, moments before the judge issued his order, Ms. Merrifield, of Mill Hall, filed notice she was withdrawing her motion. Besides making his class action ruling, Judge Brann dismissed part of Ms. Merrifield's complaint against Deana Hill, associate vice president of human resources, and the university. Among the claims dismissed were those against Hill in her official capacity which the judge pointed out Merrifield could pursue in state court. Judge Brann ordered the parties to participate in mediation that is to be completed by Oct. 30. Ms. Merrifield, a clerk since 2006, was fired Jan. 20, 2016, at age 58 after she says she refused the option of early retirement. She was replaced by a 34-year-old, she says. She contends the university fired her to avoid paying her the retirement benefits to which she would be entitled when she turned 60. Attached to the court complaint are affidavits from two other former Lock Haven employees who claimed they were treated similarly. The suit also accuses Lock Haven of failing to adequately adopt, post and implement procedures to respond to allegations of age discrimination. [GN] LONG ISLAND, NY: Sandy Case Plaintiffs Gets Class Action Status --------------------------------------------------------------- Zachary R. Dowdy, writing for Newsday, reports that a state Supreme Court justice has granted class-action status to former LIPA customers who alleged in a lawsuit that the utility company and its operating partner provided shoddy service when superstorm Sandy struck Long Island in October 2012. In a June 26 order, Nassau-based Justice Antonio I. Brandveen allowed the plaintiff classification to include all residential Long Island Power Authority customers who lost electricity during the Oct. 29, 2012, storm, continued without power for three days afterward, and did not need electrical inspections for their service to resume. Justice Brandveen also appointed several plaintiffs to play lead roles in the lawsuit and named four law firms, Wolf Popper of Manhattan, Wolf Haldenstein Adler Freeman & Herz of Manhattan, Douglas & London of Manhattan and Parker Waichman of Port Washington, to serve as their counsel. The one-page decision is the latest development in a lawsuit filed shortly after the storm that claims LIPA and National Grid, LIPA's operating partner, were negligent in efforts to restore power to its more than 945,000 customers. PSEG now manages the system. Plaintiffs contend in the lawsuit that the utilities provided bad information to customers, did not fortify substations and delayed replacing a storm-outage management system. The lawsuit also includes allegations that LIPA and National Grid failed to heed a 2006 study that flagged problems and recommended fixes that could have kept outages to a minimum. "It's obviously an important decision because all Long Islanders felt the effect of superstorm Sandy and we all share a common cause, and that common cause was the failure of our power company to protect its ratepayers and its consumers," said Jay L.T. Breakstone, appellate attorney for Parker Waichman. He said Justice Brandveen's decision to grant class-action status "allows the ratepayers to band together in an action which no individual ratepayer could undertake by his or herself." A PSEG Long Island representative referred inquiries about the Justice Brandveen's ruling to LIPA. LIPA's director of communications, Sid Nathan, said the utility intends to appeal the judge's decision. In an email, National Grid spokeswoman Wendy Ladd said the utility "is reviewing the decision and will respond with appropriate motions and/or appeals within the time frame required by the order. We will continue to defend National Grid's storm response as the litigation progresses. We are proud of the tireless efforts of our employees, supported by thousands of supplemental workers, who worked around the clock to restore power to LIPA's customers and to help rebuild our communities following superstorm Sandy." [GN] L'OREAL: Faces Class Action Over Defective Cosmetic Bottles ----------------------------------------------------------- Global Cosmetic News' Georgina Caldwell, citing Legal Newsline, reports that that L'Oreal may have to defend itself in a class action lawsuit which alleges that the French beauty giant is deliberately packaging liquid cosmetics in defective bottles that routinely fail to disgorge all of the product they contain. The complaint was filed in the Southern District of New York at the end of June by four consumers, and others in the same boat, who claim that that the bottles in question (for L'Oreal's Maybelline Super Stay Better Skin Skin Transforming Foundation and Age Perfect Eye Renewal Eye Cream) only dispense between 43 and 81 percent of the advertised contents. L'Oreal has therefore misrepresented the consumable amount of product in the bottle, they contend. "The low dispensation rate deceives and damages plaintiffs and the class of consumer, who typically spend approximately US$15 for the products, meaning that consumers may lose on the average approximately US$7 on each purchase because of defendant's alleged defective packaging," reads the suit, per Legal Newsline. [GN] NEW ENGLAND: 11th Cir. Affirms Arbitration Denial in "Gamble" ------------------------------------------------------------- The United States Court of Appeals, Eleventh Circuit, affirmed the District Court's judgment denying Defendant's Motion to Compel Arbitration in the case captioned HOPE GAMBLE, on behalf of herself and others similarly situated, Plaintiff-Appellee, v. NEW ENGLAND AUTO FINANCE, INC., Defendant-Appellant, No. 17-15343 (11th Cir.). Several months after paying off her auto loan with New England Auto Finance, Inc., Hope Gamble began to receive text messages from NEAF seeking new business from her. Although Ms. Gamble informed NEAF that she did not want to receive these text messages, NEAF continued to send them. Ms. Gamble entered into an auto loan agreement (Loan Agreement) with NEAF. The Loan Agreement contained a clause (Arbitration Provision) requiring arbitration of any claim, dispute or controversy whether preexisting, present or future, that in any way arises from or relates to this Agreement or the Motor Vehicle securing this Agreement. The Loan Agreement document also contained a provision (Text Consent Provision) granting NEAF the right to send its customers e-mails, text messages and other electronic communications. The district court denied NEAF's motion on the grounds that Ms. Gamble's claim under the Telephone Consumer Protection Act (TCPA) claim fell outside the scope of the loan agreement. NEAF appeals that dismissal. NEAF argues that Ms. Gamble's TCPA claim is subject to arbitration because her complaint touches matters within the Loan Agreement containing the Arbitration Provision. The Court disagrees. NEAF fundamentally misunderstands this important factor. Contrary to what NEAF asserts in its briefs, it is not the unsigned Text Consent Provision which gives Ms. Gamble the right not to receive unconsented-to text messages from NEAF. Congress provided Ms. Gamble that right through the TCPA, and she had that right and could assert it through litigation against NEAF, for example well before she signed the Loan Agreement and refused to sign the Text Consent Provision with NEAF. The fact that NEAF requested, but was refused, Ms. Gamble's consent to receive text messages does not somehow transform the Text Consent Provision into the source of Ms. Gamble's rights regarding those text messages. NEAF cannot force Ms. Gamble to arbitrate her TCPA claim just because the contract she entered into with NEAF, a contract that had nothing to do with the TCPA or with text messages, contained a separate provision, with a separate signature line, requesting Ms. Gamble's consent. NEAF cannot avoid the strictures of the TCPA, and force arbitration of its alleged TCPA violations, by placing the request for consent to receive text messages in the same document as, but after and apart from, a separate and independent contract, and then, after it failed to get the individual's consent, claim that the consent request was actually part of that contract. The Court will not accept NEAF's invitation to bootstring independent TCPA claims to a completely distinct contract. The bottom line is that Ms. Gamble's TCPA claims did not in any way arise from or relate to the Loan Agreement, and the parties did not agree to arbitrate those TCPA claims. Accordingly, the Eleventh Circuit holds that the district court properly denied NEAF's motion to compel arbitration. A full-text copy of the Eleventh Circuit's May 31, 2017 Opinion is available at https://tinyurl.com/ya6xdx9d from Leagle.com. Mark J. Levin -- LEVINMJBALLARDSPAHR.COM -- for Defendant- Appellant. Shireen Hormozdi, for Plaintiff-Appellee. Daniel L. Delnero -- DELNERODBALLARDSPAHR.COM -- for Defendant- Appellant. James L. Davidson, for Plaintiff-Appellee. NGU INC: Denial of Class Certification in "Win-Vent" Affirmed ------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, affirmed the state Supreme Court's judgment denying Plaintiffs' Motion for Class Certification in the case captioned WIN-VENT ARCHITECTURAL WINDOWS, A DIVISION OF EXTRUSIONS, INC., ETC., Plaintiff-Appellant, v. NGU, INC., DOING BUSINESS AS CHAMPION ARCHITECTURAL WINDOW AND DOOR, ET. AL., Defendants- Respondents, [And a Third-Party Action] 6733N, 652570/16. (N.Y. App. Div.). The Supreme Court, New York County entered an Order which denied the plaintiff's motion for class certification pursuant to Lien Law article 3-A and CPLR 901 on its causes of action alleging diversion of trust funds, unanimously affirmed, with costs. The N.Y. App. Div. holds that the state supreme court properly denied class certification on the ground that the prerequisites to a class action were not met. As the state supreme court observed, the plaintiff failed to show how the 15 different trust diversion claims on 15 unrelated contracts and projects, owned by 15 different owners, meet the requirements of commonality, typicality, and superiority of CPLR 901(a)(2), (3), and (5). A full-text copy of the N.Y. App. Div.'s May 31, 2017 Opinion is available at https://tinyurl.com/y8ga3p6f from Leagle.com. Constantine T. Tzifas, PLLC, White Plains (Albert A. Hatem, of counsel), for appellant. Morrison Cohen LLP, New York (David J. Kanfer -- dkanfer@morrisoncohen.com -- of counsel), for respondents. NQ MOBILE: Cohen Milstein to Lead in Securities Suit ---------------------------------------------------- The United States District Court for the Eastern District of Texas, Sherman Division, granted Xiang Cao's Motion for Appointment of Lead Plaintiff and Approval of Section of Counsel in the case captioned SHIQIANG CHEN, Individually and on Behalf of All Others Similarly Situated v. NQ MOBILE, VINCENT WENYONG SHI, ROLAND WU, and ZEMIN XU, Civil Action No. 4:18-CV-00096 (E.D. Cal.). Plaintiff Shiqiang Chen filed this federal securities class action on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased publicly traded NQ Mobile securities. The Private Securities Litigation Reform Act of 1995 (PSLRA) requires all proposed lead plaintiffs to submit a sworn declaration to assure the Court that the proposed plaintiff: (1) has suffered financial harm; (2) is not a serial litigant; and (3) is interested and able to serve as lead plaintiff. There is then a rebuttable presumption that the most adequate plaintiff has: (1) either filed the complaint or made a motion in response to a notice; (2) the largest financial interest in the relief sought by the class during the proposed class period; and (3) otherwise satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure. Largest Financial Interest If a motion is timely filed, the presumptive lead plaintiff must have the largest financial interest. Cao argues that he has the largest financial interest of any other movant, which is not contested by any of the movants. Therefore, the Court is satisfied that Cao has the largest financial interest. Rule 23 Requirements Typicality Cao asserts that his claims are typical of the class. No party challenges Cao's claim of typicality. The Court is satisfied that Cao is typical of the class; in other words, he has "the same essential characteristics as those of the other class members. Fair and Adequate Representation Here, the Court exercises its discretion in this case and does not bar Cao from serving as lead plaintiff of the class. The reasons behind the PSLRA are to prevent lawyer-driven litigation and to ensure that the plaintiff has the ability to actively participate in the litigation. Cao has a large enough interest, individually, to maintain control over his attorneys and to remain invested in the outcome of the case. The Court finds that Cao is able to fairly and adequately represent the class. Accordingly, because Cao timely filed its motion, has the largest financial interest, and satisfies the requirements of Federal Rule of Civil Procedure 23, Cao is the presumptive lead plaintiff. Further, the presumption has not been overcome. Therefore, the Court appoints Cao as lead plaintiff in this action. Lead Counsel Cao seeks to appoint Cohen Milstein Sellers & Toll PLLC as lead counsel for the class and MT2 Law Group as liaison counsel for the class. The Court has reviewed the resumes provided for each attorney, and is satisfied that each could adequately represent the plaintiff in this action. Accordingly, Xiang Cao's Motion for Appointment of Lead Plaintiff and Approval of Section of Counsel is granted. Xiang Cao's choice of lead counsel and liaison counsel are appointed. A full-text copy of the District Court's May 31, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/y7mn2xfe from Leagle.com. Shiqiang Chen, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by R. Dean Gresham -- dean@stecklerlaw.com -- Steckler Gresham Cochran LLP. Xiang Cao, Plaintiff, represented by Steven J. Toll -- stoll@cohenmilstein.com -- Cohen, Milstein, Hausfeld & Toll & James Mark Mann -- mark@themannfirm.com -- Mann Tindel & Thompson. Kin Sun Ho & Fong Lau, Movants, represented by Thane Tyler Sponsel, III -- sponsel@smglawgroup.com -- Sponsel Miller Greenberg PLLC. OHIO STATE: Jim Jordan Responds to Wrestling Team Abuse Claims -------------------------------------------------------------- Darrel Rowland of The Columbus Dispatch and Jessica Wehrman of Dispatch Washington Bureau report that U.S. Rep. Jim Jordan's office fought back on July 4 against accusations that he knew about allegations of abuse by a doctor for the Ohio State University wrestling team two decades ago but did not report it. In what looks to become a sustained and full-throated defense, Mr. Jordan's office produced statements backing him from former Ohio State head wrestling coach Russ Hellickson and three-time world wrestling champ Lee Kemp, who went to the University of Wisconsin. Mr. Kemp said that "the idea that Jim would know of abuse of his wrestlers and do nothing is utterly absurd." Mr. Hellickson said: "We dealt with many challenges together when he was one of my assistant coaches, and it's important to know that neither Jim nor I would sidestep or avoid challenges for our wrestlers just because the circumstances were painful or uncomfortable -- in fact, those are the kind of circumstances that motivated Jim the most. At no time while Jim Jordan was a coach with me at Ohio State did either of us ignore abuse of our wrestlers." Mr. Jordan, speaking at a Fourth of July event in Fremont, Ohio, insisted that reports by three wrestlers at Ohio State that he knew of the abuse and did not report it were "not accurate." "The things he said are just not true," Mr. Jordan said of Michael DiSabato, who told NBC that Mr. Jordan was aware of sexual abuse by Dr. Richard Strauss at Ohio State. "We knew of no abuse, never heard about abuse; if we had, we would've reported it." Mr. Jordan said he had received an email from Mr. DiSabato at 4:30 a.m. on July 4, and the congressman said he planned to report it to the Capitol Police. A spokesman said Jordan has considered calling the police because of earlier correspondence from Mr. DiSabato. Mr. Jordan said he knew Dr. Strauss at Ohio State, "but there's no truth to the fact that I knew of any abuse. And I've talked to other coaches, they didn't know about any abuse; that's just not accurate to say those things -- that we know of it and didn't report it. That's just not true." The Urbana Republican also took issue with a statement from Kathleen Trafford, a partner with the law firm Porter Wright Morris & Arthur, that he had not responded to emails or phone calls requesting an interview. The law firm was hired by OSU last spring to probe allegations against Strauss, who killed himself in 2005. Jordan said his office searched for communications from the law firm but couldn't find any. On July 4, in Fremont, he said he would willingly answer questions. Politico noted that two of the wrestlers making allegations against Mr. Jordan, Mr. DiSabato and Dunyasha Yetts, have had run-ins with the law or the university. Mr. DiSabato, who sold OSU merchandise, lost a contract with the university and has fought with it over his right to license the Ohio State brand. Mr. Yetts served 18 months in prison after pleading guilty to fraud charges in an investment scheme. Mr. DiSabato told The Dispatch that Jordan is a "coward" for not acknowledging that he knew about Strauss' mistreatment of athletes. Mr. Yetts told The New York Times that he informed Jordan multiple times -- on road trips, in the sauna and after practices -- about "the way Strauss performed physicals on us." "Coach Jordan knew what was going on, 100 percent," Mr. Yetts said. [GN] OLDE NAPLES: Faces "Honeywell" Suit in M.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Olde Naples Grand Hotel Inc. The case is styled as Cheri Honeywell, individually and on behalf of all others similarly situated, Plaintiff v. Olde Naples Grand Hotel Inc, a Florida corporation, Defendant, Case No. 2:18-cv-00487-UA-MRM (M.D. Fla., July 12, 2018). Olde Naples Grand Hotel Inc. is a 4-star hotel in Naples, Florida. The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com PACIFIC GAS: Faces Class Action Over Securities Violations ---------------------------------------------------------- Tom Gogola, writing for Pacific Sun, reports that a proposed class action lawsuit brought by shareholders has been filed against the Pacific Gas & Electric Corporation (PG&E) in federal court. Suits were filed by PG&E shareholders John Paul Moretti and David C. Weston on June 12 in the United States District Court, Northern District of California, alleging violations of federal securities law by the utility. The law firms representing the plaintiffs note in their court filings from early June that there are potentially hundreds of thousands of shareholders in the proposed class-action suit. The two suits charge that between April 29, 2015, and June 8, 2018, PG&E executives engaged in what amounted to an ongoing pattern of deceptive statements concerning the utility's vegetation-removal policies. Those statements and the subsequent wildfires that tore through California last year are the fulcrum of the suit, as recent official investigations into last year's wildfires have identified the culprit in a number of fires: PG&E power lines coming into contact with tree limbs during a high- wind event last October. The class period dates back to April 29, 2015, because that's the day, charge lawyers for the plaintiffs, that then-PG&E CEO Christopher Johns, during a conference call with investors to discuss the company's performance during first quarter of fiscal year 2015, "assured investors of the company's commitment to step up vegetation-management activities to mitigate wildfire risk." Those assurances, the suit alleges, were made to shareholders for the next several years leading up to the 2017 fires -- which, the suit argues, make a compelling case that the utility had not stepped up its efforts at managing vegetation. Johns is named in the suit along with company vice presidents Jason Wells, David Thomason and Dinyar Mistry; Geisha Williams, the current CEO and president of the utility, is also named in the suit. The defendants, charges the suit, by reason of their position as executive officers within the company, "possessed the power and authority to control the contents of PG&E's quarterly reports, press releases and presentations to securities analysts, money and portfolio managers, and institutional investors." The suit alleges that the executives "knew that the adverse facts specified herein had not been disclosed to and were being concealed from the public, and that the positive representations being made were then materially false and misleading." Along with the April 2015 reassurances about vegetation removal, the suit charges that the company's media-relations department maintains a website which "repeatedly touts the safety of its network and the company's proactivity in fighting wildfire risk." Those claims were also made in filings that the utility submitted to the Securities and Exchange Commission in 2016 and 2017, which stated that the utility had "upgraded several critical substations and reconductored a number of transmission lines to improve maintenance and system flexibility, reliability and safety." The events of October 2017 and subsequent inquiries by Cal Fire into the cause of the fires has rendered those statements "materially false and/or misleading" because they misrepresented and failed to disclose to investors that the utility hadn't maintained electrical lines under state law. The suit alleges violations of two sections of the Securities Exchange Act of 1934 and seeks a jury trial to determine the utility's culpability. The plaintiffs in the current suit, Mr. Moretti and Mr. Weston, both purchased shares in the investor-owned utility, the largest in the state of California, only to see shares in PG&E stock decline in value in the aftermath of the 2017 infernos that tore through the North Bay. Mr. Moretti purchased 280 shares of PG&E common stock between Oct. 12 and Oct. 13, 2017. On Oct. 12, he purchased 95 shares at $66.15 per share. By the next day, the shares were selling for between $57 and $58 a share, and Mr. Moretti purchased 195 additional shares. According to court records, Mr. Weston purchased 1,000 shares just a few days before the fires broke out, on Sept. 27, 2017. He paid $68.75 per share. Mr. Weston then sold 1,000 shares on Oct. 13 when they were trading at $57.96 per share. The plaintiffs are being represented by law firms in New York, Beverly Hills and San Francisco. At the time of the fires, which scorched some 250,000 acres in the Northern California, PG&E shares were trading at $69.15. By Oct. 16, they'd dropped to $53.43 and would continue to slide throughout 2018. By May of this year, shares were trading at $42.34. On June 8, PG&E shares were trading at $41.45 per share. Three days later, June 11, shares of PG&E common stock closed at $39.76. In December 2017, the company announced the suspension of a 2018 cash dividend for investors, and the utility said it would take a $2.5 billion charge this year in order to deal with mounting insurance and legal issues related to the fires that had driven down its common-stock value. PG&E has not admitted to any culpability in the fires. In public statements and media interviews, the company has repeatedly stressed that global warming has coaxed forth a "new normal" in California wildfires, and that at the time of the fires, it believed it was in compliance with its obligations to state law. As fire-related class action lawsuits mounted this year, and as Cal Fire investigations started to conclude that power lines coming into contact with tree limbs had been a predominant cause of the wildfires, the utility hired heavyweight Sacramento lobbying firm Platinum Advisors in May. The firm was founded by Sonoma County developer Darius Anderson. On June 8, Cal Fire reported that PG&E power lines coming into contact with trees were the culprit in a dozen Northern California fires in Mendocino, Humboldt, Butte, Sonoma, Lake and Napa counties The precipitous devaluation of the common stocks in PG&E, to the plaintiffs, are a sign that executives at the utility "engaged in a scheme to deceive the market and a course of conduct that artificially inflated the company's stock price, and operated as a fraud or deceit on acquirers of the company's common stock." As of April of this year, the suit notes, PG&E had 516,427,502 shares of common stock, which are held by "thousands if not millions of individuals located throughout the country and possibly the world." In a statement, the utility did not directly address the substance of these latest, shareholder-led lawsuits as it highlighted its commitment to its customers. "Nothing is more important to us than the safety and well-being of our customers and communities we serve," says Paul Doherty, a San Francisco-based marketing and communications specialist with the utility. "Our thoughts are with everyone impacted by these devastating wildfires. We are aware that lawsuits have been filed. We're focused on doing everything we can to help these communities rebuild and recover." [GN] PETROLEO BRASILEIRO: Makes $983MM Deposit Under Settlement Deal --------------------------------------------------------------- Carolina Mandl, writing for Reuters, reports that Brazil's state- run oil company Petroleo Brasileiro SA said on July 3 it made a $983 million deposit as part of a deal to settle a class action in the United States. In a securities filing, Petrobras said this deposit is the second one related to the class action. A third one, of $984 million, is due on January 15, 2019. [GN] PHELAN HALLINAN: Pa. Super. Affirms Demurrer in "Johnson" --------------------------------------------------------- In the case, EDELLA JOHNSON (A/K/A EDELLA ROBINSON A/K/A EDELLA ROBINSON JOHNSON), ERIC JOHNSON, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED FORMER AND CURRENT HOMEOWNERS IN PENNSYLVANIA. Appellants, v. PHELAN HALLINAN & SCHMIEG, LLP, Case No. 359 WDA 2017 (Pa. Super.), Judge Mary Jane Bowes of the Superior Court of Pennsylvania affirmed the trial court's Feb. 6, 2017 order sustaining the preliminary objections in the nature of a demurrer filed by Phelan. On May 23, 2002, the Johnsons executed a mortgage and associated promissory note in the amount of $74,000. The mortgage was secured by property located at 636 Collins Avenue, Pittsburgh, Allegheny County. That instrument was duly delivered, recorded, and subsequently assigned to the Bank of New York Mellon Trust Co. In December 2008, the Johnsons defaulted on the mortgage. On March 31, 2009, Mellon, through its counsel, Phelan, filed a complaint in mortgage foreclosure. In the complaint, Mellon asserted, inter alia, that the Johnsons owed $1,300 in attorney fees. After a non-jury trial, the trial court found in favor of Mellon. The Johnsons appealed that decision, and the Court affirmed. On March 23, 2012, while the foreclosure action was pending, the Johnsons initiated the instant class action against Phelan. In their complaint, the Johnsons alleged, inter alia, that Phelan violated section 406 of the Pennsylvania Loan Interest and Protection Law ("Act 6"), by pursuing and obtaining an award in the mortgage foreclosure action of attorney fees that were not actually incurred. They argued that the same harm had been suffered by other former and current Pennsylvania homeowners against whom Phelan had filed foreclosure complaints. In reliance on section 502 of Act 6, which provides remedies for violations of section 406, the Johnsons claimed that they and other similarly-situated mortgagors were entitled to treble damages for excess attorney fees assessed by Phelan. Phelan filed preliminary objections in the nature of a demurrer, contending that section 406 applies solely to "residential mortgage lenders," and not to their foreclosure counsel. On May 2, 2012, the trial court sustained Phelan's preliminary objections, and consolidated the matter for appeal with another case raising similar issues, Glover v. Udren Law Offices, P.C., docketed in the Allegheny County Court of Common Pleas at GD-11- 18015. In the consolidated appeal, the Court affirmed the trial court's order, and determined that a "residential mortgage debtor" can only maintain a cause of action for a violation of section 406 against a "residential mortgage lender," and not against their foreclosure counsel. Subsequently, the Pennsylvania Supreme Court reversed, holding that foreclosure counsel constituted a "person" for purposes of section 502, and, thus, a borrower may recover under Section 502 from any entity that collects excessive attorney's fees in connection with a foreclosure. However, the High Court offered no opinion regarding the term "collected," as used in section 502, and remanded the matter for further proceedings. On remand, Phelan again filed preliminary objections in the nature of a demurrer. However, for the first time, it asserted that the Johnsons were barred from pursuing relief under Act 6 because their $74,000 mortgage did not qualify as a "residential mortgage" under section 101 of the Act, as their mortgage exceeded the $50,000 statutory limit in effect at the time it was executed in 2002. The Johnsons maintained that the court should apply the version of section 101 in effect in 2009, at the time the foreclosure action was commenced, which raised the limit for a "residential mortgage from $50,000 to $217,873. On Feb. 6, 2017, the trial court sustained Phelan's preliminary objections on the basis that the version of section 101 in effect at the time the mortgage was executed was controlling, and the Johnsons were precluded from bringing an action against Phelan under Act 6 because their mortgage was not a "residential mortgage" under the Act. In so finding, the trial court determined that, when the legislature amended section 101 in 2008, it did not manifest an intent that the amendment apply retroactively. The Johnsons filed a timely notice of appeal. The trial court did not order the Johnsons to file a Rule 1925(b) concise statement of errors complained of on appeal. However, the court authored a Rule 1925(a) opinion relying on the reasoning it employed in its Feb. 6, 2017 opinion and order. The Johnsons raise five questions for the Court's consideration: 1. Whether the prior decisions of the Pennsylvania appellate courts, and the Pennsylvania agencies that were delegated by the Legislature to regulate Act 6, as amended in 2008, erroneously interpreted the statutory language of new Act 6. 2. Whether the lower court erred when it concluded that a district court decision discussing considerably different issues under Act 6 enacted in 1974, as amended, with respect to quite different loan transactions, constitutes error as a matter of law. 3. Whether the lower court erred in holding that the general rule that contracts cannot be regulated applies to the contracts of highly regulated banks engaged in mortgage financing. 4. Whether the lower court erred in holding that the general rule that the attorney fee terms of a contract cannot be regulated although the Pennsylvania Supreme Court held that, because an attorney has no vested rights in the attorney fee terms, they can be regulated. 5. Whether the lower court erred when it failed to follow Supreme Court's earlier mandate and remand in Glover v. Udren Law Offices, P.C. Judge Bowes concludes that the Johnsons' mortgage is not a residential mortgage protected by Act 6. The mortgage simply did not meet section 101's definition of a "residential mortgage" because the principal amount exceeded the $50,000 limit for residential mortgages in place at the time the transaction was consummated in 2002. The 2008 amendment to Act 6 cannot be retroactively applied to their 2002 mortgage. Since the Johnson's mortgage is not a "residential mortgage" under the Act, they are without a predicate violation of Act 6 for which they can recover under section 502. She therefore holds that the trial court did not err in sustaining Phelan's preliminary objections in the nature of a demurrer on the basis that the Johnsons were precluded from bringing an action under the Act. Accordingly, she affirmed the Order. A full-text copy of the Court's June 1, 2018 Opinion is available at https://is.gd/rvjlvj from Leagle.com. Michael P. Malakoff, for Appellants, Eric Johnson and EdElla Johnson. Jonathan J. Bart -- jbart@wilentz.com -- Wilentz, Goldman & Spitzer, P.A., for Appellee, Phelan Hallinan & Schmieg LLP. PURDUE PHARMA: Halts Marketing of Opioids in Canada Amid Suits -------------------------------------------------------------- Karen Howlett and Stephanie Chambers, writing for The Globe and Mail, report that the pharmaceutical giant whose pain pill triggered an overdose epidemic that has devastated communities across North America has stopped marketing its opioids in Canada. Purdue Pharma announced the change in response to the federal government calling on drug companies to suspend all marketing and advertising activities associated with opioids. The move comes more than four months after Purdue's Stamford, Conn.-based parent company stopped promoting prescription painkillers in the United States. David Pidduck, chief executive officer of Purdue's Canadian operation, says in a letter dated June 27 to Health Minister Ginette Petitpas Taylor that the company ceased "all promotional and advertising activities relating to our prescription opioids" as of June 20. Any requests from physicians about Purdue's opioid products will be handled "reactively" through direct communication with health- care staff in the medical-affairs department, Mr. Pidduck says in his letter, which is posted on the company's website. "While we have taken this action, we remain steadfast in our belief that Canadian prescribers require the most recent information . . . to ensure that patients are treated appropriately," the letter says. Ms. Petitpas Taylor has asked drug makers to voluntarily suspend their promotional activities relating to opioids while Health Canada develops policies aimed at restricting the marketing and advertising of the drugs. Health Canada plans to introduce proposed regulations in early 2019. Purdue is one of five drug companies that have stopped marketing opioids since receiving the minister's letter with the request, Mathieu Filion, her director of communications, said in an e-mail response on July 4. He did not identify the other companies. Ms. Petitpas Taylor sent the letter on June 19, the same day the federal government released new figures showing that opioid- related overdoses claimed the lives of nearly 4,000 Canadians in 2017, up 34 per cent from the previous year. Overprescribing is behind the opioid crisis, which has worsened in recent years with the arrival of illicit fentanyl, leading to a sharp spike in overdose deaths. Canada's opioid epidemic traces its roots to 1996, with the introduction of OxyContin, a prescription painkiller made by Purdue. Until then, opioids had been used primarily for terminal cancer patients. But Health Canada approved OxyContin to relieve pain that was moderate to severe and Purdue marketed the drug as safer and less addictive than other opioids. OxyContin became the top-selling long-acting opioid in Canada for more than a decade. At the same time, reports of addiction and overdose due to the drug mounted -- both among those who had been prescribed the painkiller, and those who used diverted pills illicitly. Purdue pulled OxyContin from the market in 2012, shortly before the patent was to expire. A host of other, stronger drugs filled the void, including illicit fentanyl, which began appearing on the streets in Canada in 2012. Purdue has acknowledged in the United States that its marketing of OxyContin was misleading and paid $634.5-million (U.S.) in 2007 to settle criminal and civil charges. The company stopped marketing opioids to physicians in the United States in February amid mounting lawsuits from states and American municipalities accusing it of deceptive marketing. However, Purdue's Canadian operation has not made a similar admission of wrongdoing. A proposed national class-action settlement remains on hold after a Saskatchewan judge rejected it in March, saying the $20-million in compensation that Purdue has agreed to pay is neither fair nor reasonable for the people who became addicted to the drug after their doctors prescribed it. Purdue is seeking leave to appeal the judgment. Lawyers for Purdue argue in their draft notice of appeal that judges in three other provinces -- Ontario, Quebec and Nova Scotia -- approved the proposed settlement last year. The settlement cannot go ahead unless it is approved in all four provinces. A hearing is scheduled for Aug. 22 in the Court of Appeal for Saskatchewan. [GN] QUALITY CARE: Faces Two Class Actions Over Welltower Merger ----------------------------------------------------------- McKnight's Senior Living reports that a potential rival to real estate investment trust Welltower's plans to merge with Quality Care Properties has withdrawn its acquisition proposal and no longer is considering a transaction with the company. QCP made the disclosure on July 2 in a filing with the Securities and Exchange Commission in which it also revealed two class action lawsuits related to the proposed Welltower merger. The unnamed company that was considering making an offer, which was referred to in the SEC filing as "Financial Sponsor B," informed QCP on July 1 that it no longer was interested, QCP said. QCP had said June 21 that it believed Financial Sponsor B was continuing to conduct due diligence in anticipation of possibly making a merger bid; that bid never came. QCP had revealed the potential new interest in a June 12 SEC filing, noting that it "could reasonably be expected to lead to a 'superior offer'" to the one announced in April with Welltower. The board continued to recommend that shareholders vote to approve the merger with Welltower, however. In the Welltower deal, the REIT would acquire the assets of QCP for $20.75 per share while nonprofit health system ProMedica simultaneously would acquire QCP tenant HCR ManorCare, including assisted living and memory care communities as well as skilled nursing facilities, for approximately $1.35 billion. ManorCare would become a wholly owned indirect subsidiary of QCP. A new 80/20 joint venture between Welltower and ProMedica would lease ManorCare's real estate to ProMedica for 15 years. ProMerica also would acquire ManorCare's operations. Two class action lawsuits Financial Sponsor B's withdrawal comes less than a month from the July 25 special meeting at which QCP shareholders are expected to vote on the Welltower merger. The company's board already has approved the deal. Two apparent shareholders, however, have filed class action lawsuits to try to delay or prevent it, QCP said on July 2. "The defendants believe these actions are without merit," the company said in the SEC filing. Todd Sanderson and Michael Kent -- each of whom "alleges he is a stockholder," QCP said -- filed the civil actions June 25 and June 27, respectively, in U.S. District Court for the District of Maryland. They claim that QCP and its directors violated the Exchange Act because some public disclosures contained in a June 21 proxy statement related to the merger allegedly are "false and misleading," the company wrote. Mr. Sanderson's lawsuit claims that the proxy statement is missing financial projections for the company as well as some information regarding the sale process leading up to the merger agreement. "It appears that that the merger consideration fails to adequately compensate the company's shareholders in exchange for the assets on the company's balance sheet," the complaint states. Mr. Sanderson also said that the proxy statement "fails to provide any substantive information" about Financial Sponsor B and its acquisition proposal. Shareholders need more information to be able to vote, he said. Mr. Kent's lawsuit makes similar claims to those made by Mr. Sanderson and also said it was unclear whether QCP financial adviser Lazard Freres & Co. LLC has a conflict of interest related to the merger. Goldman, Sachs & Co. LLC also advised QCP. "The proxy statement fails to disclose whether Lazard has provided services to Welltower or its affiliates in the past, as well as the amount of compensation received for such services," Kent's complaint states. "Full disclosure of investment banker compensation and all potential conflicts is required due to the central role played by investment banks in the evaluation, exploration, selection, and implementation of strategic alternatives." The two plaintiffs are represented by different law firms. They said they are suing on behalf of all of the company's shareholders except for the defendants in their lawsuits and people related or affiliated with them, according to QCP. Both lawsuits name QCP and board members Mark Ordan (also CEO), Glenn Cohen Jerry Doctrow, Paul Klaassen, Philip Schimmel, Kathleen Smalley and Donald Wood. Mr. Sanderson, the company said, is seeking an injunction that would prevent the company from proceeding with the July 25 special meeting at which the merger vote is expected to take place and also would prevent QCP from finalizing the merger until additional public disclosures are made. Mr. Sanderson also is requesting unspecified financial damages and payment for expenses related to the litigation. Mr. Kent, according to QCP, is seeking an injunction that would prevent the company from consummating the merger, rescission of the merger, an award of damages in an unspecified amount if the merger is consummated, direction to disseminate a proxy statement with revised disclosure, declaration that the defendants violated various sections of the Exchange Act, and a monetary award to cover litigation expenses of an unspecified amount. [GN] RETAIL FOOD: Franchisees' Mooted Class Action Dropped ----------------------------------------------------- Cara Waters and Mathew Dunckley, writing for The Sydney Morning Herald, report that a mooted class action against beleaguered franchise chain Retail Food Group has been dropped after Bannister Law, the law firm representing the franchisees, said it was unable to fund the case. Retail Food Group controls major brands such as Gloria Jeans, Crust Pizza, Brumbies Bakeries and Donut King. In a letter to applicants, Charles Bannister -- charles@bannisterlaw.com.au -- of Bannister Law, said the law firm had been continuing its investigations into a potential class action against Retail Food Group. The investigation had looked at the disclosure provided to franchisees when they purchased a franchise, any representations made to franchisees, the operation of affairs under the franchise agreement, and any potential breaches in the franchise conduct of conduct, the Australia Consumer Law and the Corporations Law. Bannister Law engaged franchisees and consultancy and research group Franchise Redress to provide assistance on the class action but the partnership is no longer continuing. Michael Fraser of Franchise Redress said on a number of occasions Retail Food Group franchisees told him they attempted to make contact with Bannister Law. "Franchise Redress has begun exploring other options for the hundreds of franchisees impacted by the practices of Retail Food Group in the hopes that they can be compensated and begin rebuilding their lives," Mr Fraser said. A spokesperson for Retail Food Group declined to comment. Bannister law was contacted for comment. [GN] REV GROUP: Glancy Prongay & Murray Files Securities Class Action ---------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") on July 3 disclosed that it has filed a class action lawsuit in the United States District Court for the Central District of California on behalf of persons and entities that acquired REV Group, Inc. ("REV" or the "Company") (NYSE: REVG) securities: (1) pursuant and/or traceable to the Company's registration statement and prospectus issued in connection with the Company's initial public offering on or about January 27, 2017; or (2) between January 27, 2017 and June 7, 2018, inclusive (the "Class Period"). The claims are asserted under Sections 11 and 15 of the Securities Act of 1933, and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Investors are hereby notified that they have until August 7, 2018 to move the Court to serve as lead plaintiff in this action. Investors that suffered losses on their REV investments are encouraged to contact Lesley Portnoy of GPM to discuss their legal rights at 310-201-9150 or by email to shareholders@glancylaw.com, or visit the REV case page on our website at www.glancylaw.com/case/rev-group-inc. The complaint filed in this class action alleges that throughout the Class Period and/or in the Company's offering documents, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose: (1) that the Company was experiencing cost inflation across many of the commodities and services it bought; (2) that the Company was experiencing difficulty obtaining the chassis necessary for production; (3) that the Company's margins were being negatively impacted by a lower sales of high margin products, including custom fire apparatus, large commercial buses, and Class A RVs; (4) that the Company did not have "strong visibility into future net sales" to "effectively plan" and manage its backlog of vehicles; (5) that the Company's manufacturing operations were not operating efficiently or at a low cost to satisfy customer demand; and (6) that, as a result of the foregoing, Defendants' statements about REV's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. If you purchased REV securities in the IPO or during the Class Period, you may move the Court no later than August 7, 2018 to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll- Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. [GN] RICH BOYS TOYS: Faces "Winston" Suit in California Super. Ct. ------------------------------------------------------------- A class action lawsuit has been filed against Rich Boys Toys Inc. The case is styled as Christie Winston, on behalf of all others similarly situated, Plaintiff v. Rich Boys Toys Inc, Feras Abughaban and Does 1-20, Defendants, Case No. 34-2018-00236820- CU-OE-GDS (Cal. Super. Ct., July 12, 2018). RBT has established a global network of elite vendors. They provide their clients with access to the most exclusive, elegant, and luxurious products on earth, in addition to organizing extraordinary travel and leisure packages.[BN] The Plaintiff is represented by: Ronald W Makarem, Esq. Makarem & Associates 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025 Tel: 800-610-9646 Fax: 310-312-0296 RIPPLE LABS: Faces Class Action Over Securities Law Violations -------------------------------------------------------------- John Moore, writing for Crypto News Review, reports that Ripple (the company), creators of Ripple (the cryptocurrency) has been served with a class action lawsuit alleging securities law violations Ripple Labs Inc., is now facing three legal actions in the US alleging that it broke securities law. The latest, filed in California on June 27th, is being bought by an XRP (the cryptocurrency Ripple Labs created, but now maintains is independent of it) investor who believes that it has profited from the confusing relationship between the two allegedly separate entities -- and that it has used the massive cache of XRP that it holds to profit from price increases as part of a 'never-ending ICO'. Ripple (the cryptocurrency) is not mined, as is the case with competitors Bitcoin, Ethereum, and EOS. Instead, it operates a centralised distribution model with Ripple (the company) holding and regulating the supply of the pre-mined XRP tokens. It's this controversial part of the Ripple Labs business model that the suit focuses on, claiming that this XRP stash is being sold off to fund the company -- with $100 million+ of XRP revenue being generated by it in the last quarter of 2017, which according to reports, "dwarfed any other source of revenue at Ripple". While recent comments by the SEC have established its stance that Bitcoin and Ethereum are sufficiently decentralised in their operation to pass the so-called Howey Test -- the legal precedent in the US that establishes whether something should be defined as a security -- the XRP/Ripple Labs relationship could yet fall foul of the three major criteria it outlines. These are that a security is an investment of assets in a common enterprise, made with the expectation of profit that will be the result of efforts by a third party. Were XRP to be classified as such, Ripple Labs Inc. would essentially have been illegally selling shares the whole time. It has also allowed -- the suit claims -- confusion regarding the relationship between its inter-bank payments technology and the cryptocurrency (when there really isn't a relationship at all), and an artificial scarcity of supply, to inflate it price Ripple (the company) is apparently bringing in some heavy hitting legal power to defend it, appointing Mary Jo White -- a former Securities and Exchange Commission -- to head up its legal team. It can't really afford for them to fail, lest it be forced to refund investors in XRP and/or see its management team up on criminal rather than civil charges. [GN] ROCKPORT, MA: Reaches Settlement with Property Leaseholders ----------------------------------------------------------- Ray Lamont, writing for Gloucester Times, reports that the town of Rockport and 83 leaseholders on properties at Long Beach have reached a settlement agreement resolving a pair of lawsuits that have centered on allowing public access through the properties to the beach and rental rate hikes that date to 2013. The agreement, announced on July 3 by the town, effectively ends one lawsuit brought by Long Beach resident Stephen Sheehan, who initially sought to file a class action suit on behalf of all 154 Long Beach tenants, and another filed by 82 leaseholders once Sheehan's class-action bid was denied by a Superior Court judge. Under the settlement, the town is not required to pay the tenants any damages, but agrees to cap any rent increases at 4 percent once the current 10-year leases expire in 2023 if the town wants to continue to lease the properties. The agreement also gives tenants a right of first refusal to match any offer of the town, at some point, seeks to sell the properties. The agreement requires leaseholders to allow members of the public to cross the leased properties to reach the beach between Dec. 2 through March 31. A court injunction in the tangled case had, until now, denied members of the public any access through the properties year-round. [GN] ROYAL WINNIPEG: Ontario Court Allows Class Action to Proceed ------------------------------------------------------------ Cameron Poitras, writing for Global News, reports that a lawsuit is moving forward as a class proceeding in the Ontario Superior Court against the Royal Winnipeg Ballet over photos taken by Bruce Monk. Mr. Monk is alleged to have taken nude photos of teen students from the 1980s to 2013 while working at the RWB as an instructor and photographer. He was fired in 2015 after police confirmed they were investigating a series of complaints. Mr. Monk has adamantly denied the allegations, none of which have been proven in court. No charges were ever filed. Lawyer Margaret Waddell has taken on the case and said that she doesn't know the exact dollar figure that will emerge or how many people will be a part of the class action lawsuit. "We'll probably have a better sense of that once the notice goes out," Ms. Waddell said. "We've had a number of people contact us and had identified 55 people at the time of certification, but since the notice came, we've had another six come forward. We expect them to keep rolling in." Sarah Doucet, a former student of Mr. Monk's, launched the class action lawsuit after alleging Mr. Monk took topless photos of her without her consent when she was 16 or 17. "Now the action will be going ahead on behalf of all the students that were at the school between 1984 and 2015, the time when Mr. Monk was employed by the Royal Winnipeg Ballet." The Royal Winnipeg Ballet sent this statement to Global News regarding the latest news in this story. "We cannot comment on the specific details of the legal process or June 27th's procedural motion. Our primary focus is the safety, security and well-being of every student entrusted to our care; It is a responsibility that we take very seriously, and we assess and evaluate our processes and procedures on an ongoing basis. We can share with you that our Child Protection Policies and Procedures Manual was developed in keeping with guidelines from the Canadian Centre for Child Protection. All staff working with our students are trained on our policy and supporting procedures." [GN] SAGE TELECOM: Ill. App. Affirms "Grimes" Dismissal -------------------------------------------------- Judge Shelvin L.M. Hall of the Appellate Court of Illinois for the First District, Fifth Division, affirmed the dismissal of the case, MAURICE H. GRIMES, on Behalf of Himself and All Persons Similarly Situated, Plaintiff-Appellant, v. SAGE TELECOM COMMUNICATIONS, LLC, Defendant-Appellee, Case No. 1-17-1455 (Ill. App.). Grimes, on behalf of himself and all persons similarly situated, brought a class action suit against the Defendant on Nov. 10, 2016, seeking damages for breach of contract between the Defendant and the Plaintiff and other consumers. The complaint alleged that the Defendant provided telephone service to him for which he paid a monthly charge of $53.84, in advance. Due to a service interruption between Aug. 28, and Sept. 10, 2015, the Plaintiff, along with other customers of the Defendant, was without telephone service, depriving him of the ability to conduct business and personal matters over the telephone. In a hand-delivered letter dated Jan. 19, 2017, the Defendant offered to resolve the dispute and enclosed a cashier's check in the amount of $100 payable to the Plaintiff. It requested that on or before Jan. 20, 2017, the Plaintiff notify the Defendant that he was dismissing the complaint with prejudice. Otherwise, it would file a section 2-619 motion to dismiss the complaint. On Jan. 20, 2017, the Defendant filed its appearance and a motion to dismiss. In the motion, it alleged that the tendered amount of $100 covered the full monthly payment of $53.84 plus interest. It further alleged that the Plaintiff had agreed to the extension of time and had not filed a motion to certify the class. Finally, the Defendant pointed out that Illinois courts have held that a voluntary acceptance of the tender by a plaintiff was not required. On Feb. 6, 2017, the Plaintiff filed a motion for certification of the class. He also filed a memorandum of law in response to the motion to dismiss. In the memorandum, the Plaintiff argued that the Defendant's tender of $100 did not constitute complete relief in that it did not include the cost he incurred in filing the complaint and the service of process fee. He alleged that the Defendant was not acting in good faith when it requested the extension of time to respond to the complaint but never mentioned the possibility of a settlement. In its reply, the Defendant pointed out that the Plaintiff's actual damages for the two-week loss of service was $26.92, and with prejudgment interest at 5%, the total amount was $28.94. Therefore, its $100 tender was in excess of the full amount of the plaintiff's damages. The Defendant maintained that the plaintiff was not required to wait until after the defendant appeared to file his motion to certify the class. On March 29, 2017, the circuit court ordered the parties to file supplemental memoranda addressing the costs issue. On May 3, 2017, after considering the briefs and arguments, the circuit court granted the Defendant's motion. In its order, it noted that, generally, a class action complaint is moot where the putative class representative's claims are resolved prior to the filing of a motion for class certification. The Plaintiff filed a timely notice of appeal from the circuit court's May 3, 2017, order dismissing the complaint with prejudice. He contends that the circuit court erred in dismissing his complaint. The Plaintiff requests that the Court determine that to be effective, statutory costs -- whether specifically requested or not -- must be included in the tender of relief. He further requests that the Court revisits cases holding that a class action is moot if a tender of relief is made before the he files a motion for certification of the class. Judge Hall finds that the Plaintiff was not entitled to the inclusion of costs in the Defendant's tender to afford him the complete relief he sought in his complaint. He also finds that nothing prevented the Plaintiff from filing his motion to certify the class at any time at the time of or after filing the class action complaint. He was not required to wait until the Defendant filed an appearance. Any need for additional discovery or further development of the facts to support the motion for class certification is left to the discretion of the trial court. Finally, he observes that it was the Plaintiff who chose to pursue his claim against the Defendant in a class action suit rather than as an individual. For all these reasons, Judge Hall concludes that the Defendant's tender mooted the Plaintiff's class action, and the dismissal of the complaint was proper. He affirmed the judgment of the circuit court dismissing the complaint with prejudice. A full-text copy of the Court's June 1, 2018 Opinion is available at https://is.gd/76u2iv from Leagle.com. SALON MANAGEMENT: Faces "Boyack" Suit in C.D. California -------------------------------------------------------- A class action lawsuit has been filed against Salon Management Corporation. The case is styled as Lauren Boyack, individually and on behalf of all others similarly situated, Plaintiff v. Salon Management Corporation, Regis Corporation and Regis Corp. which will do business in California as Minnesota Regis Corp., Defendants, Case No. 8:18-cv-01233 (C.D. Cal., July 12, 2018). Regis Corporation is an American operator of hair salons, and the largest such chain in the world, with over 10,000 salons. It has its headquarters in Edina, Minnesota.[BN] The Plaintiff appears PRO SE. SANTANDER CONSUMER: Can Compel Non-Class Arbitration in "Graham" ---------------------------------------------------------------- In the case, Troy Graham, v. Santander Consumer USA, Inc., Civil Action No. CCB-17-3148 (D. Md.), Judge Catherine C. Blake of the U.S. District Court for the District of Maryland (i) granted Santander's motion to compel non-class arbitration and to seal several filings; and (ii) denied Graham's motion to strike and his motion under Fed. R. Evid. 106. The dispute arises from two financing agreements used by Graham to purchase a 2008 Dodge Avenger -- a Buyer's Order and a Retail Installment Sales Contract ("RISC") -- from Darcars of Auth Way Inc. After Darcars assigned these agreements to Santander, Graham defaulted on his monthly payments in breach of the RISC, prompting Santander to repossess the Dodge Avenger in November 2013. Three years later, Santander assigned its rights to any monetary claim on Graham's debt to NCB Management services. On Sept. 22, 2017, Graham filed a class-action complaint in Maryland state court alleging that Santander violated the Maryland Credit Grantor Closed End Credit Provisions. The complaint alleged that four classes of consumers have been harmed by Santander: (1) those charged a convenience fee; (2) those who had their vehicles repossessed and were charged a storage fee to redeem personal property; (3) those who had their vehicles repossessed and were required to pay a different fee to redeem personal property; and (4) those who had their vehicles repossessed and did not receive a timely redemption notice. Santander removed the case to federal court in October 2017. Since then, Santander moved to compel non-class arbitration under the Buyer's Order and RISC, and to seal several filings; and Graham filed a motion to strike a portion of Santander's reply to Graham's opposition to the motion to compel, and filed a motion to compel Santander to provide additional evidence. Judge Blake finds that Santander may enforce the arbitration agreement. An assignment grants the assignee the same rights as the original party to the contract, the arbitration agreement remains actionable on assignment, except as to monetary claims, and Santander did not assign away its rights to arbitration. Santander's motion to compel arbitration will be granted. Graham argues that Santander's submission is misleading because a missing portion may state that, in addition to its monetary claim on Graham's debt, Santander assigned to NCB the right to take action related to the purchased debt in any manner which Santander has had or was entitled to exercise as the owner of certain Financial Assets. But this language does not add anything new. Rather it affirms what Santander has said all along: it assigned all of its rights to take action on its monetary claim on Graham's debt to NCB. And as stated, an assignee to a contract right holds that right in exactly the same manner as its previous owner. Thus, if the alleged missing material does anything, it merely reaffirms the effect of the assignment -- NCB could do with Graham's purchased debt all that Santander previously could -- without once suggesting that Santander assigned away its rights to arbitrate this dispute. As a result, Santander has not shown that fairness requires compelling Santander to submit the remaining pages of the Forward Flow Financial Assets Sale Agreement, and the motion will be denied. The Judge finds that Santander has not provided reason for the court to close its filings to the public. In each of its motions, Santander hangs its arguments to seal on the confidentiality of the business records attached to, and relied on by, the relevant filings. But Santander has not provided any reason why redacted versions of the documents would not just as well satisfy its effort to protect sensitive business information. Indeed, it has even offered redaction as a suitable alternative to sealing the filings. Thus, Santander will be granted leave to file redacted versions of the documents it has moved to seal. For the reasons stated, Judge Blake granted in part and denied in part Santander's motions. Its motion to compel arbitration is granted because a binding arbitration agreement exists between the parties, but its motions to seal are denied because Santander has not shown that redaction would not just as well serve its needs. The Judge denied Graham's motions as he has not shown that he has been prejudiced by any new arguments raised in Santander's reply nor has he shown that compelling the introduction of additional evidence is necessary to avoid unfairness. A separate order follows. A full-text copy of the Court's June 1, 2018 Memorandum is available at https://is.gd/XPt9cd from Leagle.com. Troy Graham, Plaintiff, represented by Cory L. Zajdel, Z Law LLC. Santander Consumer USA, Inc., Defendant, represented by Andrew Lynch Cole -- andrew.cole@leclairryan.com -- LeClairRyan & Robert John Brener -- robert.brener@leclairryan.com -- LeClairRyan, pro hac vice. SCI CALIFORNIA: Faces "Delacruz" Suit in California Super. Ct. -------------------------------------------------------------- A class action lawsuit has been filed against SCI California Funeral Services Inc. The case is styled as Rosalinda Delacruz, on behalf of all others similarly situated, Plaintiff v. SCI California Funeral Services Inc, SCI Shared Resources LLC and Does 1-10, Defendants, Case No. 34-2018-00236794-CU-FR-GDS (Cal. Super. Ct., July 12, 2018). SCI California Funeral Services Inc. is a provider of funeral goods and services as well as cemetery property and services.[BN] The Plaintiff is represented by: Annick Marie Persinger, Esq. Tycko & Zavareei, LLP 483 9th St Ste 200 Oakland, CA 94607 Tel: (510) 254-6808 SEAWORLD: Settles Annual Pass Holders' Class Action for $11.5MM --------------------------------------------------------------- WFTV9 reports that SeaWorld will settle a class-action lawsuit with annual pass holders for a proposed $11.5 million. An Orange County man and three others sued the company, claiming it automatically renewed their annual passes without their permission. SeaWorld did not admit to wrongdoing, but agreed to settle the suit, which still needs final approval of a judge. Florida residents who bought an annual pass between December 2008 and December 2014 could be eligible for the settlement. It's estimated that more than 131,000 customers could be eligible for the settlement if it's approved by the court. Checks will be mailed within 40 days of the final settlement date. [GN] SH FRANCHISING: Faces "Burbon" Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against SH Franchising, LLC. The case is styled as Luc Burbon, on behalf of herself and all others similarly situated, Plaintiff v. SH Franchising, LLC doing business as: Senior Helpers, Defendants, Case No. 1:18-cv- 06337 (S.D. N.Y., July 12, 2018). SH Franchising, LLC, an in-home senior care company, connects professional caregivers with seniors who wish to live at home as opposed to a nursing or assisted living facility in the United States and Canada. It has a network of franchises that offer personal and companion care services to assist seniors living independently. The company offers companion care, Alzheimer's and dementia care, housekeeping, and personal care services; and care management and evaluation, wellness watch, nurse visits, surgery assistance and sitter, and veteran services. SH Franchising, LLC was founded in 2001 and is based in Timonium, Maryland. The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal SIBANYE GOLD: Rosen Law Firm Files Securities Class Action ---------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on July 3 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Sibanye Gold Limited (NYSE: SBGL) from April 7, 2017 through June 26, 2018 (the "Class Period"). The lawsuit seeks to recover damages for Sibanye investors under the federal securities laws. To join the Sibanye class action, go to http://www.rosenlegal.com/cases-1369.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants made false and/or misleading statements and/or failed to disclose that: (1) Sibanye's culture places short-term profits over safety; (2) consequently, almost half of South Africa's 2018 mining fatalities occurred in Sibanye mines; and (3) as a result, defendants' statements about the company's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than August 27, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1369.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866- 767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] SMITHFIELD: Vows to Appeal Hog Farm Class Action Ruling ------------------------------------------------------- Christine Haughney, Liz Crampton and Caitlin Emma, writing for Politico report that Smithfield had hoped this would be a case it could win -- it was the one that it selected as part of a class- action involving hundreds of plaintiffs. But on June 29, a federal jury in North Carolina decided to award $25 million in damages to a couple complaining of miserable living conditions near a hog farm. It's another blow to Smithfield, the company that contracts with hog farms across the state, Pro Ag's Liz Crampton reports. Second time around: In April, a jury unanimously decided to award North Carolina plaintiffs millions in a nuisance lawsuit against Murphy-Brown, a subsidiary of Smithfield. That verdict was the first trial in a series of cases in North Carolina filed against the company. About 500 people who live near Smithfield-contracted farms in the eastern part of the state complain that living in proximity to industrial-scale hog farms has ruined their quality of life, forcing them to cope with foul smells, swarms of flies and buzzards. Money may not be the biggest thing: As Liz reported previously, those suing are unlikely to see much of the millions of dollars mentioned in headlines. The total amount of the verdict will likely be reduced under a state law capping how much plaintiffs can be awarded in punitive damages. For example, the first trial resulted in a more than $50 million verdict that was reduced to $2.5 million per the cap. What it means: The juries' decisions indicate that plaintiffs have made a strong argument against Smithfield, the world's largest pork producer, as the company prepares to litigate more trials in the class-action lawsuit throughout the year. Smithfield has vowed to appeal the latest decision. It also gives a range of damages that could result from any potential settlements. [GN] SOUTH CAROLINA: Faces Class Action Over Foster Care System ---------------------------------------------------------- Anne Emerson, writing for WCIV, reports that leadership at the state level for the Department of Social Services just shifted with Susan Alford retiring. A new federal law and a lingering lawsuit shines a light on a vulnerable state child welfare system. What does that mean for the 4,700 children who are in state custody now? "There will be a revolution to the child welfare system throughout the country," says Debbie Mckelvey, executive director for Windwood Farm Home for Children and Family Services in Awendaw. Any revolution will directly impact the work that Ms. Mckelvey does. She oversees a sprawling 33-year-old group foster home campus. Twenty-five children currently live at Windwood and 12 are part of the group home program. "Unfortunately there are 4,700 children in state custody, there are not enough homes to house all of the children," she said. So they come to Windwood instead to have some semblance of normal life, like fish, learn, feel safe when their worlds are turned upside down. But with the passing of the new Federal Families First Prevention Services Act, group homes are considered less than desirable. Starting October 2019, the children will have two weeks to be placed with a regular foster family. That means several foster children may be living with one family. "Will the child be safe if he returns to the community and is the community going to be safe with the child living there? And is the family or entity taking over care of that child adequately equipped to do so?" asks Ms. Mckelvey. She says those are the questions that need to be asked before a child moves on. On the bright side, Ms. Mckelvey says she hopes that the Families First Act will restructure the foster care system, bringing more services to children and families. But she asks, "Are we prepared? Where are the children going to go and on top of that when that law goes into effect, will our state be saddled with the threat of 'if it doesn't happen there will be a fine?" There is also the Michelle H federal lawsuit. This class action lawsuit directly targets the group homes, particularly children under 12. With good enough intentions, it throws a shadow over the work done at the states' 50-60 group homes. And now comes the resignation of the director who is supposed to implement all of these changes. "When I heard the news that was what I all the thoughts going through my mind -- who is going to lead us to the next step to be prepared for what is coming for families and children in need in our community?" says Ms. Mckelvey. ABC News4 has reached out to a DSS spokesperson for comment, but have not heard back yet. According to Ms. Mckelvey, South Carolina will have up to two years to implement the Families First Prevention Services Act. However, that delay could result in a fine affecting community based prevention services. She says the hope is that Windwood will qualify as a residential treatment provider. [GN] STATE FARM: Classic Auto Body Files Class Action in Clair County ---------------------------------------------------------------- According to Fender Bender, Madison-St. Clair Record reported that an auto repair shop filed a class-action lawsuit against State Farm for allegedly telling its customers that the plaintiff's work is substandard and steering them towards shops that provide discounts. Classic Auto Body Inc., filed a complaint on June 20 in the St. Clair County Circuit Court against State Farm Fire and Casualty Company. According to the report and complaint, the plaintiff alleges the defendant interfered with its business expectancy by telling Classic Auto Body's customers that it does not guarantee its work and the work was substandard. The shop also claimed State Farm steers its customers to its preferred shops that provide discounts. Madison-St.Clair Record reported that the plaintiff requests a trial by jury and seeks an order certifying this case as a class action and appointing the plaintiff and its counsel as representatives. Classic Auto Body also seeks an injunction order enjoining the defendant form continuing to divert business from the plaintiff, award for all damages and legal fees and any further relief as the court deems just and proper. It is represented by Alvin C. Paulson of Alvin C. Paulson, Attorneys at Law in Belleville. [GN] STATE FARM: Court Approves Renewed Class Notice in "Durant" ----------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, granted Plaintiffs' Amended Motion to Approve Class Notice and Appoint Class Counsel in the case captioned BRETT DURANT, On Behalf of Himself and all other similarly situated Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign automobile insurance company, Defendant, No. 2:15-cv-01710 RAJ (W.D. Wash.). The Court certified this class action as well as questions to the Washington Supreme Court. The questions posed to the Washington Supreme Court are relevant to any dispositive motions that the Defendant may file in this matter. But the answers to those questions will not act to void this Court's order certifying the class. Accordingly, the Court finds that sending notice to potential class members is procedurally appropriate. The Defendant raises several objections to the Plaintiff's proposed amended notice. The Plaintiff does not oppose some of the Defendant's proposed changes to the class notice. The Court approves the notice with the changes proposed by the Defendant and agreed to by the Plaintiffs. However, the Court agrees with the Plaintiff regarding the remaining changes proposed by the Defendant; these are not appropriate and will not be included in the class notice. Therefore, the Court approves the Plaintiff's class notice subject to the agreed changes found in the Defendant's opposition brief and the Plaintiff's reply brief. The Plaintiff also seeks to appoint class counsel. The Defendant's opposition relates only to its wish to stay this matter pending Washington Supreme Court's decision on the certified questions. But the Defendant raises no substantive arguments that go to the merits of whether David Nauheim should be appointed class counsel. Seeing no issue with the merits of the Plaintiff's request, the Court grants the Plaintiff's motion to appoint Mr. Nauheim as class counsel. A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/y9kjf6a4 from Leagle.com. Brett Durant, on behalf of himself and all others similarly situated, Plaintiff, represented by Tyler K. Firkins, VAN SICLEN STOCKS & FIRKINS, & David A. Nauheim -- david@nauheimlaw.com -- NAUHEIM LAW OFFICE. State Farm Mutual Automobile Insurance Company, a foreign automobile insurance company, Defendant, represented by David Dworsky -- ddworsky@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON, pro hac vice, Frank Falzetta -- ffalzetta@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON, pro hac vice, Gregory S. Worden -- Gregory.Worden@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP, Jennifer M. Hoffman -- jhoffman@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON, pro hac vice & Laura Hawes Young -- Laura.Young@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP. STATE FARM: Must Face Class Action Over Illinois Judge Campaign --------------------------------------------------------------- Andrew Strickler, writing for Law360, reports that a slew of factual disputes remain in a class action accusing State Farm of secretly spending millions to get a judge elected to the Illinois Supreme Court and help overturn a $1.05 billion judgment against the company, a federal judge said on July 3 in an order denying the insurer and other defendants a win. U.S. District Judge David R. Herndon said a group of plaintiff- policyholders had presented enough evidence to support allegations that Judge Lloyd Karmeier had been aware State Farm was central in recruiting him. The case is Hale et al v. State Farm Mutual Automobile Insurance Company et al, Case No. 3:12-cv-00660 (S.D. Ill.). The case is assigned to Judge David R. Herndon. The case was filed May 24, 2012. [GN] SUNTRUST BANKS: Settles ERISA Class Action for $4.7MM ----------------------------------------------------- Jessica Saunders, writing for Atlanta Business Chronicle, reports that a federal judge approved the proposed $4.7 million settlement of a class-action lawsuit by participants in the SunTrust Banks Inc. 401(k) Savings Plan claiming the Atlanta- based bank violated provisions of the Employee Retirement Income Security Act. U.S. District Judge Richard W. Story entered the final approval order following a fairness hearing in U.S. District Court for the Northern District of Georgia on June 28. The plan is a defined contribution retirement plan sponsored by SunTrust to allow participants to save for retirement. In an amended complaint filed Dec. 15, 2014, the plaintiffs claimed that the defendants, who are fiduciaries of the ERISA plan, breached their fiduciary duty in administering the plan and the plan's assets. The plaintiffs said SunTrust continued to offer SunTrust stock as a plan investment when it was imprudent to do so, and that it failed to provide complete and accurate information to plan participants regarding the company's financial condition. They also claimed the plan maintained significant investment in SunTrust stock even when the stock was no longer a prudent investment. The plaintiffs further argued SunTrust failed to properly monitor its fiduciary appointees to ensure that they were performing their duties to evaluate the continued prudence of offering SunTrust stock as a plan investment option. Plan participants lost hundreds of millions of dollars as the market price of SunTrust stock fell 73 percent between May 2007 and October 2009. The case was certified as a class action in 2016. The original complaint was filed in 2008. Under the settlement, plan participants will each receive a share of the payment from the settlement fund as a member of the settlement class. Named plaintiffs each receive a case contribution award of $10,000. Class counsel were awarded attorney fees in the amount of $1,583,333.33 and reimbursement of expenses totaling $462,810.18, according to the final order and judgment. Under the terms of the settlement, members of the settlement class also received certain non-monetary relief, including quicker vesting on matching contributions and a guarantee that the vesting schedule won't change to a less generous one for a period of at least three years. SunTrust also agreed to fund matching contributions in cash and enhance training for its fiduciary committee, according to the unopposed motion for settlement filed March 9. The fairness hearing June 28 determined whether the proposed settlement agreement is "fair, reasonable, and adequate and should receive final approval by the court," whether the settlement class and its representation satisfied federal rules of civil procedure and whether to grant the class counsel's application for attorney fees and reimbursement of litigation expenses. In a separate action against SunTrust Banks Inc. in U.S. District Court for the Northern District of Georgia, U.S. District Judge Orinda Dale Evans certified eight classes in a lawsuit by a group of former workers alleging that SunTrust breached ERISA duties by offering its retirement plan participants mutual funds managed by its own affiliate, despite the funds' allegedly tepid performance. The former workers were participants in the SunTrust 401(k) plan while at the company. "Plaintiffs allege Defendants violated their fiduciary duties to the Plan and to participants by disloyally and imprudently monitoring the Plan investment options," according to court documents filed in the case, which is "Barbara J. Fuller; Mariah C. Williams; Natalie Brown; Elaine Jefferson; Barbara A. Kennedy; Selethia Pruitt, Plaintiffs v. SunTrust Banks Inc.; The SunTrust Banks Inc. Benefits Plan Committee; Ridgeworth Capital Management Inc.; Jorge Arrieta; Harold Bitler; Mimi Breeden; Mark Chancy; Alston D. Correll; David Dierker; Ted Hoepner; Ken Houghton; Thomas Kuntz; Donna Lange; Joseph L. Lanier Jr.; Jerome Lienhard; Thomas Panther; William O'Halloran; Larry L. Prince; William H. Rogers, Jr.; Christopher Shults; John Spiegel; Mary Steele; John and Jane Does 1 to 20; Gregory Miller; Aleem Gillani; The Suntrust Banks Inc. Benefits Finance Committee, Defendants." [GN] TARGET CORP: 7th Cir. OKs Class Action Objector to Pursue Claim --------------------------------------------------------------- Madison-St. Clair Record reports that Ted Frank of the Center for Class Action Fairness can pursue a claim that phony objectors cheated a class, U.S. Seventh Circuit judges ruled on June 26. They reversed District Judge John Blakey of Chicago, who denied Frank a chance to prove his claim. Judge Blakey approved settlement of a false advertising suit against Target after three objectors dismissed their objections. Mr. Frank alleged that they settled for cash, and he called it blackmail. He argued that they leveraged a better settlement for the class for a purely personal side bargain. The district court record shows Mr. Frank pleading alone against plaintiffs, defendants, objectors, and two district judges. He trusted Seventh Circuit judges because they broke up the first settlement of the action in 2014, on his objection. This time, they elevated him from objector to party in light of his initial objection and his litigation of a prior appeal. Chief Justice Diane Wood wrote, "Objectors voluntarily dismissed their appeals." "At this stage we do not know why, but there is a real risk that they did so at the expense of the class," Justice Wood wrote. Plaintiff Nick Pearson of Cook County filed the action in 2011, claiming Target deceived him and others about Up and Up glucosamine products. Represented by Stewart Weltman of Chicago, Mr. Pearson alleged that that numerous cause and effect studies showed the ingredients didn't work as Target represented. He claimed that the products didn't renew or maintain joints or improve their mobility or flexibility. Mr. Pearson paid about $20 for a bottle, and claimed wouldn't have bought it if he had known the truth. In 2013, Target and Mr. Weltman agreed to settle Mr. Pearson's action and five potential class actions in other courts. The $6.5 million settlement fund provided $5 per bottle for claims with proof of purchase, $3 without proof. Target agreed to notify members of an ambassador's club, a loyalty program, and a wholesale club, about five million in all. Target agreed to change labels for 30 months. The settlement allowed class counsel to seek up to $4.5 million. On Mr. Frank's behalf, Melissa Holyoak of the Center for Class Action Fairness objected. Ms. Holyoak wrote that the deadline for objections fell before plaintiffs would apply for fees, and that the settlement should be rejected for that reason alone. "Second, the class has no information as to the actual amount of the class benefit," she wrote. A generous estimate, she wrote, wouldn't exceed $2 million. As it turned out, claims didn't exceed $1 million. Barely 30,000 persons filed claims, at an average of $29. The fund donated more than $1 million to orthopedic education and research. Mr. Weltman had estimated the value of the settlement at $20.2 million, including notice, fees, and the value of label changes. District Judge James Zagel approved the settlement in January 2014, and awarded $1,933,592.75 to Mr. Weltman and eight other lawyers for the plaintiffs. Mr. Frank appealed to the Seventh Circuit, which reversed Judge Zagel in December 2014. Justice Richard Posner wrote, "The $20.2 million figure has barely any connection to the settlement's value to the class." Justice Posner wrote that showing how a settlement is split between class counsel and the class "gives class counsel an incentive to design the claims process in such a way as will maximize the settlement benefits received by the class, rather than to connive with the defendant in reformulating claims filing procedures that discourage filing and so reduce the benefit to the class." "The requirement of needlessly elaborate documentation, the threats of criminal prosecution, and the fact that a claimant might feel obliged to wade through the five other documents accessible to him from the opening screen of the website, help to explain why so few recipients of the postcard notice bothered to submit a claim." He wrote that, "realism requires recognition that probably all that class counsel really care about is their fees." Plaintiffs and Target settled for $7.5 million in 2016, with recovery for the class at least $3.3 million greater than in the original agreement. The settlement provided 33 percent of the fund for class counsel. Judge Zagel approved it and awarded Mr. Frank $180,000 in attorney fees. Mr. Frank objected to the settlement and the fees, as did Randy Nunez, Steven Buckley, and Patrick Sweeney. Target and plaintiffs stipulated to dismissal with prejudice, and Judge Zagel granted it. Mr. Frank moved to intervene as guardian ad litem for absent class members, in order to seek disgorgement of funds from Nunez, Buckley, and Sweeney. Judge Zagel then reached retirement age and took senior status, allowing him to choose the cases he wanted. He transferred the case to an executive committee that assigned it to Judge Blakey. Judge Blakey struck Mr. Frank's disgorgement motion, writing that he lacked jurisdiction because Judge Zagel dismissed the action with prejudice. Target and plaintiffs then moved for approval of fund distribution. Mr. Frank moved to reopen the action so he could disgorge "side payments paid to rent extracting objectors." He claimed Target offered valuable consideration in exchange for dismissals. Judge Blakey denied the motion, and Mr. Frank appealed to the Seventh Circuit. Chief Judge Wood and Justices Ilana Rovner and David Hamilton held that Blakey mistook the scope of his discretion and the nature of the problem. "Inequitable settlements are an unfortunate recurring bug in our system of class action litigation," Judge Wood wrote. "All too often, class counsel negotiate a settlement with substantial attorneys' fees but meager benefits for the class. "Named plaintiffs fail to live up to their ethical obligations as fiduciaries to the class." "We do not know whether class counsel intended to bargain away rights with the stipulated dismissal, or merely did so accidentally," she wrote. She wrote that whatever the reason, the class was disadvantaged and received no offsetting benefit. She wrote that on remand, Judge Blakey could tailor evidentiary proceedings to resolve factual disputes before confronting the propriety of any remedy. Mr. Weltman represents plaintiffs in association with David Golanty, and Max Stein of Chicago, Charles Sweedler and Howard Sedran of Philadelphia, Jeffrey Carlton and Peter Freiberg of White Plains, N.Y., and Elaine Ryan of Phoenix. Todd Carpenter and James Patterson of San Diego represent Nunez, Buckley, and Sweeney. Bradley Andreozzi, David Sudzus, Justin Kay, Kara McCall, Michael Davis, and Theodore Scarborough represent Target. [GN] TATA COMMUNICATIONS: Mahajan Files Class Action Over Lost Data -------------------------------------------------------------- Bar & Bench reports that The National Consumer Disputes Redressal Commission (NCDRC) has allowed a public notice to be issued in a class action complaint instituted by a medical imaging company against Tata Communications Limited. The complainant, Mahajan Imaging Private Ltd, had moved a class action suit against Tata Communications seeking compensation for having lost their data. The complainant had entered into a contract with Tata to preserve clinical records of their customers in 2012 but lost access to the data in 2016. [GN] TEAC CORP: Settles Optical Disc Drive Price-Fixing Class Action --------------------------------------------------------------- Jennifer Bieman, writing for The London Free Press, reports that from classes to a class action lawsuit, Fanshawe College is leading the charge in court, taking aim at an alleged price- fixing conspiracy involving some of the world's largest electronics companies. The London-based college, under the legal direction of Siskinds Law Firm, is the plaintiff in a civil court action seeking compensation from a number of technology companies for alleged price-fixing of optical disc drives, technology used in CD, DVD and Blu-Ray players. In April, the Ontario's Superior Court of Justice approved settlements from three defendants, totaling more than $9.3 million. In May, the settlements from the three tech giants were later approved by courts in two other jurisdictions, British Columbia and Quebec, where parallel class actions are underway. Japan-based manufacturer TEAC Corp. and its Canadian subsidiary agreed to pay US$500,000 to settle the class action. Another Japanese tech company, NEC Corp., has paid $730,000. HLDS, a joint venture between Hitachi and LG, has paid $8.1 million as part of the settlement. The three companies are not admitting liability. The companies have agreed to cooperate with the class action's lawyers, handing over sales and cost documents and allowing witness interviews, Justice H.A. Rady's decision said. The college and its lawyers will pursue further action against the remaining defendants, a long list that includes Sony, Toshiba, Samsung Electronics, Philips and Panasonic. "The case against the others continues," said Charlie Wright, a partner at Siskinds Law Firm and the lawyer representing Fanshawe College in the class action. "Our obligation and business is to keep pursuing the others and proving the case for as long as we have to until they decide they're prepared to pay what we think is an appropriate sum to resolve the litigation." Request for comment from the counsel for HLDS and NEC went unreturned. The lawyers for TEAC declined comment on the case, saying the issue is before the courts. People who have purchased optical disc drives from companies caught up in the class action eventually will be able to sign up to receive compensation. Payments will begin once more settlements are brokered or a judge hands down a decision on more defendants, Mr. Wright said. "There are many other defendants and it costs a fair bit of money and takes a lot of time to collect all the claims, do the math and pay out the money," he said. "We usually wait until there's enough in the bank." The Canadian class action comes as other jurisdictions pursue legal action of their own. In 2011, three HLDS executives pleaded guilty to criminal charges in the U.S. District Court in San Francisco, Calif., related to bid-rigging and price-fixing conspiracies of optical disc drives. After a years-long investigation, the European Commission in 2015 slapped eight optical disc drive suppliers, including HLDS, with more than $177 million in fines for violating antitrust rules. The investigation found the companies intentionally colluded on bidding strategies, shared results of tenders and shared sensitive information with each other between June 2004 and November 2008. More recently, several of the optical disc drive companies implicated in the Fanshawe College class action have settled similar price-fixing antitrust cases in 23 states and the District of Columbia. With a precedent of other legal action over price-fixing allegations, Siskinds approached Fanshawe College to see if the school was willing to step in as the representative plaintiff in the Ontario suit. "We thought about entities in the London area . . . who might have a significant claim for recovery in a pending class action," Mr. Wright said. "Fanshawe . . . we thought, would have a not insignificant claim." Partnering with the London law firm to advance the price-fixing class action was a natural fit, Fanshawe's senior manager of retail services David Smith said. The school purchases scores of computers and other technology. "We're a direct purchaser and re-seller. . . We sell them to students and we use them in-house as well," he said. Siskinds approached Fanshawe and drafted an agreement where the college would not be on the hook financially if the class action went wrong and there were costs to be paid, Wright said. "Fanshawe, when they agreed to do this, made certain and knew that they were not, as a college, at risk of paying legal fees, either our fees of the other side's," Wright said, adding the Fanshawe case has a few more motions scheduled this fall and winter. The optical disc drive price-fixing class action is not the first tech-related court battle waged by Fanshawe College. In 2007, the school took aim at a lengthy list of electronics manufacturers alleging the companies engaged in price-fixing of LCD panels, technology found in many laptop screens, flat-screen televisions and computer monitors. Settlements to date on the LCD class action total $37.4 million. Payments are being made, including to at least a half dozen other Ontario colleges and universities, Mr. Smith said. Though it might seem unusual for a publicly-funded college to wade into years-long class actions against multinational, multimillion-dollar tech companies, Mr. Wright said there's no better organization to bring the case to court. "Arguably, they're funded by taxpayers, and if they know they were ripped off and have the ability to recover some money that will help fund the college. . . I'd say, good on them for stepping up," Mr. Wright said. [GN] TENNESSEE: Sued Over Court Debt Driver's License Revocations ------------------------------------------------------------ The Associated Press reports that Tennessee officials can't keep revoking the driver's licenses of people who can't pay off their court debts, a federal judge wrote on July 2 in a decision that could have wider implications for similar policies in dozens of other states. U.S. District Judge Aleta Trauger in Nashville wrote that revocations imposed under state law when a driver hasn't paid court debt for a year or more violate constitutional due process and equal protection rights and are "powerfully counterproductive." Similar suspensions are allowed in more than 40 states. Lawsuits challenging them have been filed in at least five states over the past two years, contending that the punishments unfairly target poor people. The Tennessee class action case was brought on behalf of two indigent men affected by the law, James Thomas and David Hixson. "If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future," the judge wrote. "But taking his driver's license away sabotages that prospect." Since the Tennessee law went into effect in 2012, only 7 percent of people who lost their licenses because of unpaid fines have been able to get them back, the group's lawsuit said. Tennessee revoked 146,211 driver's licenses from July 2012 to June 2016 under state law for failure to pay court debts, and only 10,750 licenses were reinstated, the ruling says. The National Center for Law and Economic Justice, which helped lead the lawsuit, said the ruling will improve the lives of people who can't afford court debts. "We just think this is going to have a tremendous impact on low- income people in Tennessee because so many people have been shut out of their driver's licenses, and with that, the ability to work, to take care of their families, to visit their doctors, even to run simple errands like grocery shopping," said Claudia Wilner, senior attorney for the National Center for Law and Economic Justice. "Now, people are going to be able to do all these things without fear of criminal consequences for driving on a revoked license." Judge Trauger ordered state officials to submit a plan within 60 days to stop revoking licenses over court debts and lift related previous license revocations that were based solely on failing to pay court debt or reinstatement fees. State officials haven't decided yet whether to appeal. "We are disappointed with the trial court's decision and are considering all of our legal options," said Kelly Smith, a senior adviser in Attorney General Herbert Slatery's office. [GN] TWITTER INC: Averts Female Engineers' Gender Bias Class Action -------------------------------------------------------------- Joel Rosenblatt, writing for Bloomberg News, reports that Twitter won't have to face a group lawsuit alleging systematic discrimination against female software engineers. The case stood to be the first in the technology sector to advance to class-action status, and the July 3 ruling signals that a movement to level the playing field for women in the tech industry has yet to gain traction in courts. California Superior Court Judge Mary E. Wiss in San Francisco found the 135 current and former engineers didn't have enough in common in how they were allegedly held back from promotions and raises relative to male employees to proceed as a group, which would have given them more leverage as the case heads toward a trial. Not winning class certification "is a setback, though not the end of the case," said Charlotte Garden, a law professor at Seattle University, before the ruling. She added that the decision would be a "doubly bad sign" for the plaintiff because it may point to weaknesses in the heart of her allegations that women engineers at Twitter are treated unfairly by company policies that weren't intentionally designed to be biased. A Seattle federal judge denied class-action status on June 25 for a gender bias case against Microsoft. Similar cases are pending against Google and Oracle, while Uber Technologies settled a class action in April. Twitter argued the case isn't fit to proceed as a class action because the women didn't show proof that managers used a common set of practices to decide promotions. The company counts more than 3,500 employees, about 850 of them software engineers, in 35 offices worldwide. It leaned heavily on a 2011 U.S. Supreme Court decision that blocked 1.5 million female workers at Walmart from pursuing their discrimination claims as a group. Tina Huang, the woman leading the case against Twitter, argued that a 2017 report by an economist and statistician shows that female engineers are promoted at a lower rate, remain stuck in lower positions longer and are almost absent from senior ranks. Her lawyer, Jason Lohr, contended there's enough similarity in the experiences of Huang's peers to proceed as a group because the company required managers to use a particular process for promoting engineers. Mr. Lohr said in an emailed statement that he is disappointed in the ruling and that Huang hasn't decided on her next steps in the case. [GN] TRANS UNION: "Miller" Transferred to N.D. Cal. for Consolidation ---------------------------------------------------------------- The United States District Court for the Middle District of Pennsylvania granted Joint Motion to Transfer to the United States District Court for the Northern District of California the case captioned RONALD J. MILLER, on behalf of himself and all others similarly situated, Plaintiff, v. TRANS UNION, LLC, Defendant, Case No. 3:12-cv-01715 (M.D. Pa.), for settlement purposes. The case is transferred to the United States District Court for the Northern District of California to be consolidated for settlement purposes with the case of Larson v. TransUnion, LLC, No. 12-5726-WHO (N.D. Cal.). A full-text copy of the District Court's May 31, 2017 Order is available at https://tinyurl.com/y9gvwg65 from Leagle.com. Ronald J. Miller, on behalf of himself and all others similarly situated, Plaintiff, represented by Andrew J. Ogilvie -- andy@ogilvie-brewer.com -- Ogilvie & Brewer, LLP, David A. Searles -- dsearles@consumerlawfirm.com -- Francis & Mailman, P.C., James A. Francis -- jfrancis@consumerlawfirm.com -- Francis & Mailman, PC & John Soumilas -- jsoumilas@consumerlawfirm.com -- Francis & Mailman PC, pro hac vice. Trans Union, LLC, Defendant, represented by Brian C. Frontino -- bfrontino@stroock.com -- Stroock & Stroock & Lavan LLP, pro hac vice, Bruce S. Luckman -- bluckman@shermansilverstein.com -- Sherman Silverstein, Donna A. Walsh -- dalsh@mbklaw.com -- Myers Brier & Kelly, LLP, Stephen J. Newman -- snewman@stroock.com -- Stroock & Stroock & Lavan LLP, pro hac vice & Jason S. Yoo -- Jason.yoo@affirm.com -- Stroock & Stroock & Lavan LLP. UBER TECHNOLOGIES: BCAC Wins Dismissal of Wage Deductions Suit -------------------------------------------------------------- The United States District Court for the Southern District of New York granted Defendants The Black Car Fund, Black Car Assistance Corporation, and New York Black Car Operators Injury Compensation Fund, Inc.'s Motion to Dismiss the case captioned GUSTAVO CAMILO, individually, on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants, No. 17 Civ. 9508 (AKH)(S.D.N.Y.). The Plaintiff sues the Uber Technologies Defendants alleging violations of N.Y. Labor Law Section 193 and other State laws for unlawful wage deductions. The Amended Complaint asserts four claims for relief: unlawful wage deduction under N.Y. Labor Law Section 193 (Claim 1); breach of contract, fraud, and unjust enrichment (Claim 2); breach of contract (Claim 3); and breach of fiduciary duty (Claim 4). Claim 4 is the only claim that references the Black Car Fund and BCAC, alleging that the Black Car fund intentionally took on the responsibility to oversee member's actions for collections of the surcharges. The Court finds that the Complaint fails to state a plausible claim for relief against the Black Car Fund or BCAC, and the Court therefore grant Defendants' motion to dismiss the Complaint against Black Car Fund and BCAC. None of the four claims asserted in the Complaint are plausible against the Black Car Fund or BCAC. Regarding Claim 1, Section 193 of the New York State Labor Law prohibits employers from making "any deduction from the wages of an employee, unless authorized by law." The Black Car Fund or BCAC were not Plaintiff's employer, nor did they make any deductions from Plaintiff's wages. Uber, Plaintiff's employer, is the proper defendant for this claim, since Uber is the entity paying the employees' wages. Regarding Claim 2 and 3, there is no plausible claim that Black Car Fund or BCAC were unjustly enriched, engaged in fraud, or breached their contractual duties to Plaintiff. The Black Car Fund received its 2.5% fee from Uber, and, whether Uber improperly deducted such fees from Plaintiff did not benefit the Black Car Fund. The Black Car Fund had no contractual relationship with Plaintiff. There are no allegations that the Black Car Fund or BCAC engaged in fraudulent activity or were otherwise enriched by Uber's actions. Regarding Claim 4, there is no plausible claim that the Black Car Fund owed fiduciary duties to Plaintiff and breached those duties by allowing Uber to engage in its illegal deductions. The Black Car Fund is not in a fiduciary relationship with Plaintiff, and it has no duty to monitor the contractual or other obligations between the dispatching bases, i.e., Uber, and the drivers. A full-text copy of the District Court's May 31, 2017 Order and Opinion is available at https://tinyurl.com/yb9m5pya from Leagle.com. Gustavo Camilo, Individually, and on behalf of others similarly situated, Plaintiff, represented by Joseph Albert Romano, Law Offices of Joseph A. Romano. Uber Technologies, Inc., jointly and severally, Uber Logistik, LLC, jointly and severally, Uber USA LLC, jointly and severally, Acht-NY, LLC, jointly and severally, Achtzehn-NY, LLC, jointly and severally, Danach-NY, LLC, jointly and severally, Dreist-NY, LLC, jointly and severally, Dreizehn- NY, LLC, jointly and severally, Drinnen-NY, LLC, Eins-NY, LLC, jointly and severally, Elf-NY, LLC, jointly and severally, Einundzwanzig-NY, LLC, jointly and severally, Funf- NY, LLC, jointly and severally, Funfzehn-NY LLC, Grun, LLC, jointly and severally, Hinter, LLC, jointly and severally, Neun-NY, LLC, jointly and severally, Neunzehn-NY, LLC, jointly and severally, Schmecken, LLC, jointly and severally, Sechs-NY, LLC, jointly and severally, Sieben-NY, LLC, jointly and severally, Siebzehn-NY, LLC, jointly and severally, Unter, LLC, jointly and severally, Vier, NY, LLC, jointly and severally, Vierzehn- NY, LLC, jointly and severally, Weiter, LLC, jointly and severally, Zehn-NY, jointly and severally, Zwanzig-NY LLC, jointly and severally, Zwei-NY, LLC, jointly and severally, Zwolf- NY LLC, jointly and severally & Rasier LLC, jointly and severally, Defendants, represented by David Wirtz -- dwirtz@littler.com -- Littler Mendelson, P.C.,Kevin Robert Vozzo -- kvozzo@littler.com -- Littler Mendelson, P.C., Maayan Deker -- mdeker@littler.com -- Littler Mendelson, P.C. & Andrew M. Spurchise -- aspurchise@littler.com - - Littler Mendelson, P.C. UNITED COLLECTION: Court Limits Discovery in "Meredith" ------------------------------------------------------- The United States District Court for the Northern District of Ohio, Eastern Division, granted in part and denied in part Plaintiffs' Motion to Compel Discovery in the case captioned Deborah Meredith, Plaintiff, v. United Collection Bureau, Inc., Defendant, Case No. 1:16 CV 1102 (N.D. Ohio). The Plaintiff asserts that Defendant United Collection Bureau (UCB) violated the Telephone Consumer Protection Act (TCPA) by initiating multiple telephone calls to her cell phone in an attempt to collect a debt. Based on the Plaintiff's own discovery requests, the class data that the Court ordered UCB to produce was limited to the Plaintiff's definition of the class -- the Court would not order UCB to produce more information than the Plaintiff herself had requested. Moreover, the information that the Plaintiff believes the Court ordered UCB to produce and that she now seeks appears to be significantly broader than her own proposed class definition. Requiring UCB to produce such information would, therefore, not be proportional to the needs of the case. Thus, the Plaintiff's motion to compel is denied to the extent it asks the Court to compel production of all wrong number calls UCB made using its dialer or with an unattended message to the Plaintiff and the class. The Plaintiff requested that UCB's data be produced in a format that can be reviewed and manipulated in a way that still maintains its integrity. Rule 34(b)(1)(C) allows a requesting party to specify the form or forms in which electronically stored information is to be produced. The information that UCB produced is ordinarily maintained in a way that makes it searchable by electronic means, but the fixed .pdf document that UCB produced removes this feature. Beirdneau stated only that the requested data cannot be extracted and then imported into an Excel spreadsheet; he did not testify that it is impossible to produce the data in a searchable format. Thus, when UCB produces the results of the new query that the Court has ordered, it must do so in a manner that is electronically searchable. In addition, in light of the protective order in place in this case, UCB has not adequately explained the need for redacting the material that it is producing. Thus, the data must be produced without redactions. A full-text copy of the District Court's May 31, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/yct3oobc from Leagle.com. Deborah Meredith, Plaintiff, represented by Alexander H. Burke, Burke Harvey, David M. Marco -- dmarco@smithmarco.com -- Smith Marco, Larry P. Smith -- lsmith@smithmarco.com -- Smith Marco & Mitchel E. Luxenburg -- mitch@luxenburglevin.com -- Luxenburg & Levin. United Collection Bureau, Inc., Defendant, represented by Ethan G. Ostroff -- ethan.ostroff@troutman.com -- Troutman Sanders, Lindsey B. Mann -- lindsey.mann@troutman.com -- Troutman Sanders, Jason P. Ferrante -- JPFerrante@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin & Keith J. Barnett -- keith.barnett@troutman.com -- Troutman Sanders. UNITED STATES: DHS Must Give Parole Hearings to Asylum Seekers -------------------------------------------------------------- Lydia Wheeler, writing for The Hill, reports that a federal district court judge ruled on July 2 that the Trump administration must consider on an individual basis whether immigrants who come to the U.S. seeking asylum represent a flight risk or a danger to their community before they can be detained if they've proven a credible fear of persecution. Judge James Boasberg, on the U.S. District Court for the District of Columbia, issued a preliminary injunction blocking the Department of Homeland Security (DHS) from arbitrarily detaining asylum seekers. The order stems from a class-action lawsuit the American Civil Liberties Union (ACLU) filed on behalf of asylum seekers who have been denied parole even though Immigration and Customs Enforcement (ICE) officials found they had a credible claim of persecution in their home countries, which is the first step toward gaining asylum status. The ACLU argued that DHS violated its own parole directive, immigration law and the Constitution in an effort to deter other asylum seekers from coming to the country. In his ruling, Judge Boasberg said he was ordering DHS to follow a policy the government admitted it was required to follow. "To mandate that ICE provide these baseline procedures to those entering our country -- individuals who have often fled violence and persecution to seek safety on our shores -- is no great judicial leap," he said. "Rather, the issuance of injunctive relief in this case serves only to hold defendants accountable to their own governing policies and to ensure that plaintiffs receive the protections they are due under the Parole Directive." In the lawsuit, ACLU argued DHS had created a blanket policy of detaining asylum seekers at ICE field offices in Detroit; El Paso, Texas; Los Angeles; Newark, N.J. and Philadelphia. The civil rights group hailed the court for its ruling on July 2. "This ruling means the Trump administration cannot use indefinite detention as a weapon to punish and deter asylum seekers," Michael Tan, senior staff attorney with the ACLU's Immigrants' Rights Project, said in a statement. DHS said as a policy it does not comment on pending litigation. The Department of Justice also declined to comment. [GN] UNITED STATES: Fed. Cl. Grants Summary Judgment Bid in "Lucier" ---------------------------------------------------------------- In the cases, ANDREW S. LUCIER, et al., THOMAS E. BEATTIE, et al., Plaintiffs, v. UNITED STATES, Defendant, Case Nos. 16-865L, 16-893L (Fed. Cl.), Judge Marian Blank Horn of the U.S. Court of Federal Claims (i) granted the Defendant's motion for summary judgment in Lucier, Case No. 16-865, and Beattie, Case No. 16- 893; (ii) denied the Lucier Plaintiffs' partial motion for summary judgment; and (iii) denied the Beattie Plaintiffs' partial motion for summary judgment. The Plaintiffs are landowners in Thurston County, Washington, who allege that the United States government effected takings of their reversionary property interests through the operation of the National Trails System Act (2012). They allege a taking occurred when the United States Surface Transportation Board issued a Notice of Interim Trail Use related to a railroad corridor abutting their property that prevented their state-law property rights from reverting to and vesting in them. As a result of the government's alleged taking of their reversionary property interests, the Plaintiffs assert they are entitled to just compensation under the Fifth Amendment to the United States Constitution. The BNSF Railway Co. ("BNSF") previously operated a railroad corridor that extended, in relevant part, approximately 1.43 miles through Belmore, Thurston County, Washington. The Plaintiffs and the Defendant agree that BNSF held an easement for railroad purposes in the railroad corridor. In both of the cases, however, the parties dispute whether recreational trail use exceeded the scope of BNSF's easement in the railroad corridor, and whether the Plaintiffs had an interest in the land underlying the railroad corridor. Although they, in both cases, assert claims relating to the same railroad corridor in the State of Washington, the Plaintiffs filed their takings claims in the United States Court of Federal Claims separately and are represented by two separate counsels of record. The two cases are captioned as Andrew S. Lucier, et al. v. United States, No. 16-865, and Thomas E. Beattie, et al. v. United States, No. 16-893. On July 22, 2016, the Plaintiffs in Lucier filed their initial complaint against the United States in the Court. The Plaintiffs in Lucier amended their complaint twice, filing their second and final amended complaint on Jan. 11, 2017. the Plaintiffs in Beattie filed their initial and only complaint against the United States in the Court on July 27, 2016. On Jan. 11, 2017, the Court, finding the factual and legal issues in the two cases to be substantially similar, consolidated the cases for case management purposes. On Oct. 6, 2017, the Plaintiffs in Lucier and Beattie each filed a partial motion for summary judgment addressing BNSF's interest in the railroad corridor, and whether the scope of the easements previously held by BNSF had been exceeded. In Lucier Plaintiffs' Oct. 6, 2017 motion, Lucier Plaintiffs Jan Pettigrew, Keith D. Quentin, and Skiview Estates Association moved for partial summary judgment on the issue of fee ownership of the land underlying the railroad corridor. They stated that all other Plaintiffs reserve this issue of ownership of the land underlying the railroad corridor for trial. The Beattie Plaintiffs stated that they do not move for summary judgment on the issue of their ownership of property in the railroad corridor, but instead request that it be reserved for trial, along with damages. On Nov. 6, 2017, the Defendant responded to the Lucier Plaintiffs' and the Beattie Plaintiffs' partial motions for summary judgment and cross-moved for summary judgment, including on the issue of ownership of the land underlying the railroad corridor. On Dec. 6, 2017, the Lucier and Beattie Plaintiffs filed their replies to the Defendant's response and response to the defendant's cross-motion for summary judgment, and also cross-moved for partial summary judgment regarding the issue of ownership of the land underlying the railroad corridor. The Lucier Plaintiffs stated, initially, they [in their Oct. 6, 2017 motion for partial summary judgment] suggested that determination of whether the remaining Plaintiffs owned the fee underlying the easements should be reserved for trial. However, the United States brought that issue front and center suggesting that summary judgment on that issue is appropriate. The Beattie Plaintiffs stated while they initially stated their preference that this issue be reserved for trial, upon reflection, now that the government has raised the issue of cognizable property interests in its cross-motion, they believe that the Court should grant summary judgment in their favor on this issue. The Lucier Plaintiffs attached to their Dec. 6, 2017 motion an expert affidavit of Mark D. Schedler and an affidavit of John A. Kilpatrick, attached to which were the chains of title for Lucier Plaintiffs Andrew S. Lucier, Kris Allen O'Bannon, Jan Pettigrew, Scott L. and Susan K. Putzier, Kenneth T. and Shannon L. Kratina, Jon Sandberg, and Robert M. and Kathleen L Shaputis. The Beattie Plaintiffs attached to their Dec.r 6, 2017 motion an expert affidavit of Mr. Schedler, which was identical to the affidavit of Mr. Schedler submitted in Lucier, and a different affidavit of Dr. Kilpatrick, attached to which were the chains of title for all three Beattie Plaintiffs. On Jan. 8, 2018, the Defendant filed its reply, in which it sought to strike the Plaintiffs' experts and their affidavits. Both sets of the Plaintiffs moved for leave to file sur-replies in order to address the Defendant's argument that the Court should strike the Plaintiffs' experts and their affidavits, which the Court granted, and, on Feb. 7, 2018, both sets of the Plaintiffs filed their sur-replies. The Lucier Plaintiffs attached to their sur-reply another expert affidavit of Dr. Kilpatrick, chains of title for Lucier Plaintiffs Jan Pettigrew and Keith D. Quentin, and updated chains of title for the six Lucier Plaintiffs whose chains of title had already been submitted to the court. Likewise, the Beattie plaintiffs attached to their sur-reply another expert affidavit of Dr. Kilpatrick and updated chains of title for them. Both sets of Plaintiffs indicated in their sur-replies that they did not oppose the Defendant having an opportunity to address the materials attached to their sur-replies, and the Court provided the Defendant with an opportunity to respond. On March 7, 2018, the defendant filed a response to the Plaintiffs' sur-replies, in which it again moved to strike the Plaintiffs' experts and their affidavits. The Court heard oral argument on May 16, 2018 regarding the parties' cross-motions and the Defendant's motion to strike the affidavits of Mr. Schedler and Dr. Kilpatrick. During the May 16, 2018 oral argument, Mr. Sears, the counsel of record for the Lucier Plaintiffs, and Thomas Stewart, the counsel of record for the Beattie Plaintiffs, indicated that, if the cases were to proceed to trial, the Lucier and the Beattie Plaintiffs would not produce any additional evidence relevant to the resolution of their claims in the cases. Additionally, during the May 16, 2018 oral argument, the Court struck the affidavits of Mr. Schedler and Dr. Kilpatrick. Regarding Mr. Schedler's affidavits, on May 18, 2018, the Court issued another order stating that as it explained at the May 16, 2018 hearing, Mr. Schedler's affidavits do not contain information which assists the Court with evaluating the evidence before it in the cases. Regarding Dr. Kilpatrick's affidavits, on May 18, 2018, the Court issued another order stating that after consideration of the briefs filed by the parties and the presentation at the argument on May 16, 2018, it strikes the two affidavits of Dr. Kilpatrick submitted by the Plaintiffs in Lucier and the two affidavits of Dr. Kilpatrick submitted by the Plaintiffs in Beattie, subject to renewal of Dr. Kilpatrick's affidavits in both cases if appropriate at a later date on motion by the parties. However, upon the Plaintiffs' request, the Court admitted into evidence the chains of title attached to Dr. Kilpatrick's affidavits as exhibits to the parties' motions and cross-motions for partial summary judgment. Judge Horn finds that the plat maps of the referenced short subdivisions, which are referenced by the Plaintiffs' individual deeds and correspond with tracts of land on LLS-0146, indicate that the plaintiffs do not own the land underlying the railroad corridor. None of their deeds contain language which purports to convey the land underlying the railroad corridor, and the illustrations in the referenced short subdivisions are consistent with the illustrations on the sheets of the plat map of LLS-0146 and indicate that the referenced short subdivisions end at the edge of the railroad corridor. Additionally, the chains of title offered by the Plaintiffs do not create a genuine issue of material fact. The Judge finds that nothing in the chains of title indicates that any of the nine aforementioned Plaintiffs own the land underlying the railroad corridor. The deeds in the chains of title that post- date the creation of the plat map of LLS-0146 by Black Lake Estates, G.P. in 1982 for the nine Plaintiffs owning land corresponding with tracts in LLS-1046 all describe the land being conveyed as either being in a short subdivision, the plat maps of which reference being located on LLS-0146. The post-1982 deeds in the chains of title for the nine plaintiffs do contain any language indicating that any of the plaintiffs own anything more than the properties described in the plat maps of the short subdivisions or LLS-0146, which, as stated above, do not include the land underlying the railroad corridor. The Judge will therefore grant the Defendant's motion for summary judgment against Lucier Plaintiffs Andrew S. Lucier, Kris Allen O'Bannon, Kenneth T. and Shannon L. Kratina, Jon Sandberg, Scott and Susan Putzier, and Robert M. and Kathleen L Shaputis and Beattie plaintiffs Thomas E. Beattie, Clinton L. Termini, and Stephen Upton. Unlike the decision in Sutton v. United States, the deeds and plat maps of all of the Plaintiffs' properties demonstrate that, under Washington law, the parties did not intend to pass fee interest in the land underlying the railroad corridor to them. For the reasons she articulated, Judge Horn (i) granted the Defendant's motion for summary judgment in Lucier, Case No. 16- 865, and Beattie, Case No. 16-893. She denied both the Lucier Plaintiffs' and the Beattie Plaintiffs' partial motion for summary judgment. The clerk will enter judgment consistent with the Opinion. A full-text copy of the Court's June 1, 2018 Opinion is available at https://is.gd/Jgd2dl from Leagle.com. ANDREW S. LUCIER, ALLEN O'BANNON, JAN PETTIGREW, SCOTT L. PUTZIER, &, SUSAN K. PUTZIER, AND & KEITH D. QUENTIN, For Themselves and As Representatives of a CLass of Similarly Situated Persons, Plaintiffs, represented by John Robert Sears -- sears@bscr-law.com -- Baker Sterchi Cowden and Rice, LLC. USA, Defendant, represented by Sarah Izfar, U.S. Department of Justice. UNITED STATES: Minnesota Plaintiffs in "Ackerman" Suit Reinstated ----------------------------------------------------------------- In the case, GREGORY ACKERMAN, et al, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendant, Case No. 17- cv-11779 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, granted in part the Plaintiffs' motion for reconsideration and reinstating, severing, and transferring their claims against Federal Defendants to the District of Minnesota. On June 5, 2017, a group of farmers and incorporated farms filed suit against a number of insurance companies, the United States Department of Agriculture, the Risk Management Agency, and the Federal Crop Insurance Corp. The Plaintiffs are dry bean farmers in Michigan, Minnesota, and North Dakota who have not received indemnity for crop insurance to which they believe they are entitled. The Plaintiffs are bringing the putative class action on behalf of all dry bean farmers in Michigan (navy pea beans and small red beans), Minnesota (dark red kidney beans), and North Dakota (dark red kidney beans). Each Plaintiff purchased Dry Bean Revenue Endorsement ("DRBE") crop insurance for their dry bean crops in 2015. The purpose of this insurance was to protect dry bean farmers against a market price decline. However, even though dry bean market prices declined greatly in 2015, no indemnity was paid to the Plaintiffs. In the present suit, the Plaintiffs seek a declaratory judgment invalidating certain administrative determinations related to the DBRE, reforming or invaliding the insurance contracts, and ordering the Defendants to pay indemnity to them. On November 22, 2017, the Federal Defendants and the Insurance Defendants both filed motion to dismiss. On March 8, 2018, the Plaintiffs filed a motion for leave to file a second amended complaint which corrects the names of certain Plaintiffs. On April 18, 2018, the Court issued an order granting the motions to dismiss and also granting the motion for leave to file an amended complaint. In that order, the Court dismissed without prejudice all the Plaintiffs who do not farm or reside in the Eastern District of Michigan. It also dismissed all the Insurance Defendants after concluding that the Plaintiffs had failed to comply with the contractual requirements for bringing suit found within the insurance policies. On May 2, 2018, the Plaintiffs filed a motion for reconsideration. In the motion, they argue that the Plaintiffs from outside the Eastern District of Michigan should have been transferred to the proper venue instead of dismissed. They also argue that the claims against the Insurance Defendants should not have been dismissed because the Insurance Defendants never refused to provide indemnification (which would have triggered the mandatory arbitration provisions of the policies) and because the Plaintiffs' claim for contractual damages from the Insurers can be advanced without first receiving a determination of noncompliance with the policy from the FCIC or undergoing arbitration. The Plaintiffs raise two arguments in their motion for reconsideration. First, they argue that the Court should have transferred the Minnesota Plaintiffs to the District of Minnesota instead of dismissing them without prejudice for lack of venue. Second, they argue that the Court should not have dismissed the Insurance Defendants. Judge Ludington holds that neither argument identifies a palpable defect in the Court's prior order. Nevertheless, in the interests of justice, he will reinstate the claims of the Minnesota Plaintiffs against the Federal Defendants and transfer them to the District of Minnesota. The Plaintiffs' present arguments simply demonstrate exactly why their claims against the Insurance Defendants must be dismissed, and so no relief is warranted in that respect. Accordingly, the Judge granted in part the Plaintiffs' motion for reconsideration. He reinstated Plaintiffs Rich Elbert, Jeff A. Kosek, and Reichmann Land & Cattle LLP. The Judge severed and transferred to the District of Minnesota the said Plaintiffs and their claims against the Federal Defendants. A full-text copy of the Court's June 1, 2018 Order is available at https://is.gd/q8Ob6c from Leagle.com. Ackerman Brothers Farms, LLC, Back Road Farming, Inc., Daniel E. Balcer, Becker Farms, LLC, Randy Beckering, Bernia & Sons Farms, Inc., Bernia Family Farms, Inc., Brian Brandenburg, Gary Bulzan, D. T. Rouech Farms, LLC, Todd W. Draggoo, Beatrice Elenbaum, French Farms, Harry Gaiser, Jr., Jason Gaiser, Goebel Farms, Inc., James Gremel, Gro Green Acres, Gruehn Farms, Inc., Gruehn Acre Farms, Jason Haag, Terry Haag, Tom Haag, Scott Hawken, John Schluckebier Farms, Inc., Fred Karg, Kurtis Kreger, Timothy Kubacki, Kundinger Farms, Inc., Laracha Farms, LLC, Matthew Lutz, R & J Farms, Inc., Robert Rathje, Rayl Farms, Inc., Richmond Brothers Farms, LLC, Rodammer Farms, Inc., Russell Transport, Inc., Daniel Sahr, Leasly Schaper, Gregory Schian, Jeffrey Schian, John Schian, Brad Singer, Stacer Farms Ltd. Partnership, Constance Kreger, Mark Stambaugh, Donald Stecker, Vern Stephen, Lucas M. Stockmeyer, Robert Stockmeyer, Kendall Stoeckle, Stoutenburg Farms, Three R Farms, Inc., Vader and Son, LLC, Vader Farms, Inc., Vanhoost Farms, Inc., Glenn L. Vogel, Joseph Vohwinkle, Jim Wilkinson, Terry Wood, Don Zaremba, Zimmer Farms, Inc. & Ackerman & Son LLC, Plaintiffs, represented by John D. Tallman. United States Department of Agriculture, Risk Management Agency & Federal Crop Insurance Corporation, Defendants, represented by Sarah Pring Karpinen, U.S. Attorney's Office. UNITED STATES: Counties Set to Receive PILT Class Action Payments ----------------------------------------------------------------- Alex Paul, writing for Albany Democrat-Herald, reports that Linn and Benton counties will receive an unknown amount of money from a class action lawsuit filed in Utah that charged the federal government underfunded the Payments in Lieu of Taxes program in 2015, 2016 and 2017. Linn County Commissioner John Lindsey told fellow commissioners Roger Nyquist and Will Tucker on July 3 that he has been following the case in part because it is similar to the class action lawsuit filed by Linn County and others against the Oregon Department of Forestry. Because much of the Pacific Northwest is owned by the federal government and therefore does not pay local property taxes, the PILT program helps mitigate those tax losses to counties, in some cases by several million dollars per year. PILT income is derived by fees charged for livestock grazing, timber harvesting and oil and gas leases. In general, federal lands can be owned by a variety of agencies and entities, including the U.S. Forest Service, the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service and branches of the military. Linn County has about 561,000 acres of federal lands. Benton County has about 74,000 acres of federal lands. Linn County budgeted $190,000 in 2017-18 in PILT money. But Linn County received about $1.023 million from the PILT program, said County Administrator Ralph Wyatt. Benton County will receive about $185,000. The latest payments do not reflect the funds from the lawsuit settlement, which are forthcoming, although the government has the right to appeal the court's decision. Oregon's 36 counties will receive nearly $37 million from the lawsuit settlement. "These funds are welcome news for rural communities across our state," said U.S. Rep. Greg Walden, the Republican who represents the state's 2nd Congressional District. "I worked with my colleagues in the House to fully fund this program that is part of the federal government's obligation to our rural counties." Mr. Walden added, "With the majority of Oregon's land managed by the federal government, these funds, along with Secure Rural School funds and timber receipts, help ensure our communities have well-functioning schools, law enforcement, and infrastructure." Secretary of the Interior Ryan Zinke said that 1,900 government entities will receive portions of $552.8 million from the PILT program, the largest amount allocated in its 40-year history. Mr. Zinke said he grew up in northwest Montana and understands the importance of the PILT program to rural areas. "PILT investments often serve as critical support for local communities as they juggle planning and paying for basic services such as public safety, firefighting, social services and transportation," Mr. Zinke said. Since its founding in 1977, the PILT program has also distributed more than $8.5 billion to the District of Columbia, Puerto Rico, Guam and the U.S. Virgin Islands. [GN] UNITED STATES: Petersburg Borough Votes to Join PILT Class Action ----------------------------------------------------------------- Petersburg Pilot reports that the Borough Assembly voted to opt- in on a class action lawsuit against the United States on July 2. The Petersburg Borough is one of the local governments which receive payment from the Payment in Lieu of Taxes Act, according to a noticed issued by the United States Court of Federal Claims. During the 2015, 2016 and 2017 fiscal years, the government did not pay the required full amounts to local governments under the PILT Act. [GN] UNITED STATES: Town of Weathersfield Joins PILT Class Action ------------------------------------------------------------ Valley News reports that town officials said Weathersfield will join a class-action lawsuit that alleges the federal government failed to make payments between 2015-17 for land owned by the Army Corps of Engineers. A federal court has ruled that the government owes money to municipalities across the country as part of a PILOT, or payment in lieu of taxes, program that underpaid local governments for several years. While an agreement has been reached for the total owed for 2015 and 2016, negotiations are ongoing to determine 2017 payments, according to court documents. Officials believe a resolution will be reached soon, however. Weathersfield Town Manager Ed Morris said on June 28 that there is no taxpayer cost to join the suit. But failing to do so means the town would not be eligible to receive any money, he said. The federal land in question is located in the Stoughton Pond Recreation area near the North Springfield dam. Weathersfield only receives a few thousand dollars from the federal government each year -- expected to amount to roughly $3,000 in 2018 -- but the town decided joined the suit on principle, Mr. Morris said. "We are not doing it because we need the money," he said. "We want to stand behind the county (in Utah)." Kane County, Utah, filed a lawsuit against the federal government in June 2017 seeking to recover underpayments through the PILOT program. A federal claims court ruled in favor of the county in December, saying the federal government is obligated to pay local governments a certain amount based on a formula, even though Congress failed to appropriate sufficient funds from 2015-17. [GN] UNITED STATES: Whitman County Agrees to Join PILT Class Action -------------------------------------------------------------- William L. Spence, writing for The Lewiston Tribune, reports that the Whitman County commissioners agreed to join a class action lawsuit that deals with alleged underpayments in the federal Payment In Lieu of Taxes program from 2015 to 2017. The program compensates counties that have large tracts of untaxed federal lands, such as national forests or Army Corps of Engineers property. The money can be used for public schools, roads and other public services. Nationwide, the program will pay out more than $550 million to about 1,900 jurisdictions this year. Congress, however, didn't fully fund the program from 2015 to 2017. Kane County, Utah, filed suit last year, alleging that the underpayments were contrary to federal code. The U.S. Court of Federal Claims ruled in its favor in December, and granted class- action status to the case. Whitman County expects to receive about $57,000 this year in funding from the program. The alleged underpayments would be a small fraction of that. Nevertheless, the commissioners voted unanimously to join the lawsuit. "The amount of money that's at stake for Whitman County is de minimus," said Commissioner Michael Largent. "But for other counties, it can be quite significant. To the extent that we can support them in their efforts to provide public services, I think we should." Washington should receive about $29 million in funding from the program this year, according to estimates from the Washington State Association of Counties. From 2015 to 2017, the total alleged underpayments amount to less than $1 million statewide. For some individual counties, however, the figure could exceed $300,000. [GN] UNITED STATES: Goshen County Joins PILT Class Action ---------------------------------------------------- Mark Gaschler, writing for StarHerald.com, reports that the Goshen County Board of Commissioners voted to opt-in on a nationwide class-action lawsuit against the federal government The class action lawsuit is over PILT (payment in lieu of taxes) funds from the federal government, which compensates counties for the lack of property taxes on federal lands, with the counties alleging the federal government underpaid PILT for a number of years. While the government only holds a small fraction of Goshen County's land-assessor Debbi Surratt said federal lands account for under 27,000 acres of the county, less than two percent -- Commissioner Carl Rupp said he wanted to show solidarity with other counties across the country. "We don't have a lot (of federal land) in Goshen County, so we don't get a lot of money," he said. "Some counties make at least half-a-million dollars from just that payment." Rupp agreed, noting that it costs Goshen County nothing to support the other counties. "We're in a unique situation where this doesn't really affect us," he said, "but it affects some of those other counties big." Commissioner John Ellis agreed. "It's financially responsible," he said. The county stands to gain a little money from the lawsuit, about $2,800, although legal fees would be paid out of the county's winnings. [GN] UNITED STATES: Court Blocks Arbitrary Detention of Asylum Seeker ---------------------------------------------------------------- Jamaica Observer reports that a United States federal court has blocked the arbitrary detention of a Haitian asylum seeker and others fleeing persecution, torture or death in their countries of origin. According to the American Civil Liberties Union (ACLU), the court also ordered a case-by-case review of whether each asylum seeker in the class-action lawsuit should be released on humanitarian parole. Named plaintiff Ansly Damus, an ethics teacher from Haiti, has been locked up in Ohio for more than a year and a half, the ACLU said. The case, Damus v Nielsen, was filed in US District Court in Washington, DC It names the US Department of Homeland Security and the Department of Justice as defendants. The court's ruling on July 2 stems from a challenge brought by the ACLU, Center for Gender and Refugee Studies, Human Rights First, and Covington & Burling LLP. The ACLU said US Government policy stipulates that asylum seekers be granted humanitarian parole as they await their immigration proceedings, provided they meet a series of stringent requirements. Instead, the ACLU said Trump administration has "categorically jailed them indefinitely, in violation of the Constitution, US immigration laws, and the Department of Homeland Security's own written policy." "This ruling means the Trump administration cannot use indefinite detention as a weapon to punish and deter asylum seekers," said Michael Tan, senior staff attorney with the ACLU's Immigrants' Rights Project. The lawsuit targets five US Immigration and Customs Enforcement (ICE) field offices that have almost entirely stopped granting parole since early 2017, the ACLU said. Those offices are Detroit (which covers Michigan and Ohio), El Paso (which covers New Mexico and West Texas), Los Angeles, Newark (which covers New Jersey), and Philadelphia (which covers Pennsylvania). The ACLU said all the plaintiffs passed credible fear screenings -- meaning a US asylum officer has determined their fear of persecution is credible, and that they have a significant possibility of receiving full asylum. More than 1,000 asylum seekers are estimated to have been denied parole in those five ICE districts alone, said the ACLU, stating that the court's decision will have "an enormous impact on asylum seekers, who pose no risk, and are currently languishing in detention." "It is a rejection of the Trump administration's blanket policy of denying parole to those seeking protection in this country," said Human Rights First's Legal Director Hardy Vieux. "We hope that our clients and those like them will no longer be wrongly held in prison-like conditions." The ACLU said Mr. Damus committed no crime in Haiti. Rather, it said, he had spoken out against a government official "and was then forced to flee violent, political persecution." When he arrived in the US, the ACLU said Mr. Damus presented himself to immigration authorities and requested asylum. "He passed his credible fear interview and was granted asylum by a judge -- not once, but twice," the ACLU said. "Despite that, he has remained behind bars while the government appealed his grants of asylum. "The Trump administration had put Mr. Damus behind bars indefinitely alongside thousands of other asylum seekers like him," it added. "ICE has not allowed him outside even once in over a year." "I have not breathed fresh air or felt the sun on my face, and I never know if it is cold or hot outside, if the sun is out, and if the seasons are changing," the ACLU quoted Mr. Damus as saying when the lawsuit was filed. [GN] UNIVERSITY OF OTTAWA: Sued Over Nadon Sexual Assault Allegations ---------------------------------------------------------------- OttawaMatters.com reports that a Chelsea doctor, facing dozens of sex assault and voyeurism charges, stemming from incidents while he practiced medicine at University of Ottawa Health Services now faces a $210-million dollar class action lawsuit. Vincent Nadon, 57, was charged earlier this year. The allegations against him involve video-taping and assaulting nearly 40 patients. The university has been named in the lawsuit as well. Attorney with Toronto law firm Flaherty McCarthy, Candice Mak, told OttawaMatters that they represent the lead plaintiff for the class action, and other patients with allegations against Dr. Nadon are thinking hard about whether or not to come forward. "Those are the ones that, we understand, have gone to the police," she explained. "And of course, it's common in sexual assault cases that victims are reluctant to come forward, completely understandable [because] they don't want to be re- victimized." Ms. Mak said Dr. Nadon is only "part of the problem." The University of Ottawa, as operators of the Health Services Centre, is named in the suit, and the lawyer adds many of the patients at the clinic were students who had an expectation they would be safe. None of the allegations against Dr. Nadon, dating back to 1990, have been proven in court. [GN] URBAN SPACE: N.Y. OKs Prel Approval of $265K Class Settlement ------------------------------------------------------------- The Supreme Court, New York County, granted Plaintiff's Unopposed Motion for Preliminary Approval of His Proposed Class Action Settlement Procedure and Conditional Class Certification of the Action in the case captioned CRAIG McCLENDON, individually and on behalf of all other persons similarly situated who were formerly or are presently employed by URBAN SPACE WORKS, LLC, URBANSPACE GRAND CENTRAL LLC, URBAN SPACE 230 PARK LLC, and ELDON SCOTT and/or any other entities affiliated with or controlled by URBAN SPACE WORKS LLC, URBANSPACE GRAND CENTRAL LLC, URBAN SPACE 230 PARK LLC, and ELDON SCOTT, Plaintiff, v. URBAN SPACE WORKS LLC, URBANSPACE GRAND CENTRAL LLC, URBAN SPACE 230 PARK LLC, and ELDON SCOTT and/or any other entities affiliated with or controlled by URBAN SPACE WORKS LLC, URBANSPACE GRANT CENTRAL LLC, URBAN SPACE 230 PARK LLC, and ELDON SCOTT, Defendants, Docket No. 153586/2017, Motion Seq. No. 1 (Sup. Ct., N.Y. Co.). The Plaintiff, individually and on behalf of a putative class of approximately 60 similarly situated people who work or have worked for the defendants, brings this purported class action lawsuit against them for their alleged failure to pay appropriate overtime compensation. The parties attended a mediation at which the plaintiff presented a detailed audit of the alleged class damages. They reached an agreement, settling for $265,000, and in the settlement agreement, they define the class as follows: The Named Plaintiff and a Class of all individuals employed by Urban Space Works, LLC, Urban Space Grand Central LLC, Urban Space 230 Park LLC, and Eldon Scott, and their related affiliates and subsidiaries who performed work as security guards, porters, maintenance workers, and janitorial workers, and all work incidental thereto from April 11, 2011 through August 8, 2017. The Class shall not include any clerical, administrative, professional, or supervisory employees. Pursuant to CPLR 901(a), a lawsuit may qualify as a class action if the following criteria are met: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class which predominate over any questions affecting only individual members (commonality); (3) the claims of the representative parties are typical of the claims of the class (typicality); (4) the representative parties will fairly and adequately protect the class's interests (adequacy of representation); and (5) a class action is superior to other available methods for the fair and efficient adjudication of the controversy (superiority). Numerosity The approximately 60-member class is so numerous that joinder of all its members would be impracticable. Commonality Notwithstanding the difference among class members in terms of their specific jobs and damages, common questions of law and fact predominate, namely, whether defendants failed to pay the class overtime wages and thereby violated state labor laws. Typicality The Plaintiff's claim is typical of the claims of the class, as it arises from overtime work performed for which he was not compensated; a finding in his favor would result in all members of the class obtaining relief. Adequacy of representation As the plaintiff alleges that he worked for the defendants as a security employee, cleaner, and maintenance worker, and that they unlawfully deprived him of overtime wages during that period, he adequately represents the class, as he and other members seek the same relief. Having served as class counsel in numerous actions in this county, plaintiff's counsel are adequate representatives for the class. Superiority As the costs of prosecuting individual actions are likely to exceed the damages suffered by one class member, the class action is a superior vehicle for resolving this claim. Settlement agreement The following factors are considered: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Here, the settlement agreement appears to be the product of serious, informed negotiations, as the parties attended a mediation at which the plaintiff presented a detailed accounting of damages incurred. The Plaintiff's request for attorney fees, however, requires a detailed breakdown of the reasonable value of services provided. Based on the plaintiff's proposed order, the Court adopts the settlement procedure. Accordingly, the proposed class action settlement is preliminarily approved and the settlement class is conditionally certified. A full-text copy of the Supreme Court's May 31, 2017 Decision and Order is available at https://tinyurl.com/yadw53mu from Leagle.com. VIRGINIA: Class Action Against SVJC May Face Delay -------------------------------------------------- Bob Leweke, writing for WMRA, reports that the class-action lawsuit against the Shenandoah Valley Juvenile Center may be delayed, as lawyers try to add a fourth teen to the suit. [GN] VIVINT INC: 9th Circuit Affirms Class Action Dismissal ------------------------------------------------------ Global Legal Chronicle reports that on June 13, 2018, the United States Court of Appeals for the Ninth Circuit affirmed the District Court's dismissal with prejudice of a putative class action lawsuit against Vivint, Inc. The Ninth Circuit held that Vivint did not violate California Labor Code Section 432.7, which generally prohibits employers from asking about or taking employment actions based on expunged criminal convictions. The Ninth Circuit ruled that such general prohibition is inapplicable when the employer is required by law to obtain information regarding the conviction of an applicant -- which the Ninth Circuit held was the case here. Vivint, Inc. provides home security, energy management, home automation, local cloud storage, and high-speed Internet solutions to customers in the United States and Canada. The Simpson Thacher team for the appeal includes Chet Kronenberg -- ckronenberg@stblaw.com -- and Tyler Bernstein -- tyler.bernstein@stblaw.com -- Mr. argued the appeal before the Ninth Circuit. [GN] VIZIO: Reaches Tentative Privacy Class Action Settlement -------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that smart TV manufacturer Vizio has reached a "potential settlement" of a privacy class action, the company said in court papers filed in Santa Ana, Calif. The agreement is expected to be finalized by August 10, and presented to U.S. District Court Judge Josephine Staton the following month. Tentative terms have not yet been disclosed. If approved, the deal will resolve a lawsuit alleging that Vizio violated several laws, including a federal video privacy law, by sharing information about consumers with ad-tech companies and data brokers. The legal battle dates to 2015, when a group of consumers alleged that Vizio tracks TV viewers by default, and shares data with companies that send targeted ads to people's phones, tablets and other devices. The first complaint came several days after ProPublica published a report about the company. Last year, Judge Staton rejected Vizio's bid to dismiss the lawsuit. The manufacturer had argued that the federal Video Privacy Protection Act -- which prohibits video providers from disclosing personally identifiable information about people's video-viewing history without their explicit consent -- doesn't apply to device manufacturers. Vizio also argued that the type of data allegedly disclosed -- including IP addresses, media access control (MAC) addresses, ZIP codes, computer names, and product serial numbers -- wasn't personally identifiable. Judge Staton sided against Vizio on both points. She said in a ruling issued in March 2017 that Congress intended for the video privacy law to apply to companies that are "in the business of delivering video content." The judge also rejected Vizio's contention that the type of information allegedly disclosed couldn't be personally identifiable. While Judge Staton made clear that the ruling was only preliminary, and could change depending on facts that emerged as the case progressed, she also suggested that even theoretically "anonymous" data could be used to identify individuals. In the written opinion, she pointed to allegations in the complaint that MAC addresses can be used to learn specific geolocation data, and to identify individuals when combined with data about IP addresses, ZIP codes, serial numbers, and other data. Vizio unsuccessfully asked Judge Staton to authorize an immediate appeal of her decision. Last year, the Federal Trade Commission brought a separate enforcement action against Vizio for allegedly engaging in an unfair practice by tracking consumers, and for deceiving consumers by failing to adequately explain its data practices. The company agreed to settle the charges by paying $2.2 million to the FTC and the state of New Jersey, which also brought a complaint against the company. [GN] WASHINGTON: Faces Class Action Over Home Care Worker Union Dues --------------------------------------------------------------- Associated Press reports that an Olympia-based think tank is suing to force Washington state and a union for home-care workers to reimburse those workers for union dues or fees they didn't want to pay. The Freedom Foundation filed the lawsuit on July 3 in U.S. District Court in Tacoma. It seeks class-action status on behalf of hundreds or thousands of in-home care providers for elderly or disabled clients covered by Medicaid in the past four years. The lawsuit says the state automatically collects 3.2 percent of the workers' pay and turns it over to the union, SEIU 775. Workers can choose to opt out, but the organization says the state has failed to honor some of those requests. Maxford Nelsen, the Freedom Foundation's labor policy director, says the organization was already planning to sue, but the U.S. Supreme Court's 5-4 Janus decision helped its cause. That ruling said forcing public employees to pay union dues without their prior consent is unconstitutional. The home care workers aren't considered full public employees, but Nelsen says the same logic should apply to them. SEIU spokeswoman Nina Jenkins and Jaime Smith, a spokeswoman for Gov. Jay Inslee, said they had not seen the lawsuit and could not immediately comment. [GN] WEINSTEIN CO: Attorney Alleges Fraud, Racism Against Lantern ------------------------------------------------------------ Dawn C. Chmielewski, writing for Deadline, reports that the lead attorney in a class action lawsuit against Harvey Weinstein on July 3 voiced concern over allegations of fraud and racism leveled against the Dallas-based private equity firm poised to acquire The Weinstein Company. Producer Marvin Peart hit Lantern Capital with a $110 million lawsuit on July 2, claiming he was excluded from the deal after bringing Lantern to the negotiating table. "Institutional racism" is being cited as part of the reason for Mr. Peart, who is African American, being dumped by Lantern. Cris Armenta, the national class-action counsel for the six women who filed a suit last December against Weinstein, on behalf of all women who found themselves on the disgraced movie producer's "casting couch," issued a statement to Deadline raising concerns about the allegations in the Lantern suit. "We wish this deal would go to close for the benefit of all the unsecured creditors. However, I have always been suspicious about the debtors' hostility to making justice happen. Our clients only care about justice and their voices. In Georgia this year, there was a verdict rendered for a woman who was raped while people should have known better. The $1 billion verdict was the single largest rape verdict in the history. That should be a barometer for Harvey Weinstein's misdeeds and for all the people who enabled him. The victims will not stand down and their voices will be heard. The recent allegation of racism only calls more into question the misogyny that has been TWC's legacy. We stand together: Race, Gender, LGBTQ. We are one." The U.S. bankruptcy court approved the sale of The Weinstein Co.'s assets to Lantern Capital in May. As the stalking horse in the bankruptcy action and the favorite to take over the company from the beginning, pledging to run a business "with the utmost respect for all employees and promote a diverse and transparent environment." Mr. Peart's 23-page civil suit, in which claimed he had been gradually frozen out of the deal, seeks payment for orchestrating a sale that has not yet closed. And it landed at a critical time for TWC. The studio warned in bankruptcy court filings that its pending sale to Lantern could collapse. The Weinstein Co. said it has been arguing with the firm over who would pay potentially tens of millions of dollars owed to actors and others involved in various film and TV projects. A Lantern spokesperson said the company does not comment on litigation, but issued the following statement: "In response to the question, 'Was Marvin Peart excluded from any meetings?' To the extent that he was, the (Weinstein) company and its advisors requested that Lantern exclude Marvin Peart from certain meetings due to his long-term personal and business relationship with David Glasser." The Weinstein Co. board fired Mr. Glasser, the company's former president and chief operating officer, in February. [GN] WHATCOM COUNTY, WA: Sued Over Jail Addiction Therapy Protocol ------------------------------------------------------------- Cascadia Weekly reports that with Whatcom County facing legal action for its glacial pace in developing a therapy protocol for jail inmates who suffer addiction issues from painkillers, the other housekeeping arrived as the county joined a class-action lawsuit against the manufacturers of those prescription drugs. In June, the American Civil Liberties Union of Washington filed a class-action civil rights lawsuit against Whatcom County and the Whatcom County Sheriff's Office for denying people with opioid use disorder (OUD) in the County Jail medications necessary to treat their addiction and ease their withdrawal. Sheriff Bill Elfo reported to Whatcom County Council that a medication- assisted treatment protocol for inmates had been under development at the jail for some time, but had not been fully initiated. County Council, meanwhile, had been for some time considering their own initiative, joining the widening legal fight against makers and wholesalers of prescription opioids, claiming they have contributed to a public health crisis. "There is a fairly strong record that certain pharmaceutical companies engaged in deceptive practices with doctors and patients about whether these products would be addictive, and aggressively over-encouraged physicians to overprescribe them," Councilmember Todd Donovan explained. In April, County Council voted unanimously to retain legal counsel to join Everett, Tacoma, and other communities around the state in lawsuits against the distributors of over-prescribed painkillers. The Whatcom County Prosecutors office confirmed that legal documents had been filed in a federal lawsuit against Purdue, Endo, Teva Pharmaceuticals, Mallinckrodt, and Janssen, the largest manufacturers of prescription opioids in the United States, as well as AmerisourceBergen, Cardinal Health, and McKesson, the three primary wholesale distributors of prescription opioids in the country. The lawsuit seeks damages from these companies for their role in creating the opioid crisis that has seriously impacted Whatcom County and communities nationwide, and alleges that they violated the Washington Consumer Protection Act and federal corrupt enterprise statutes (RICO). Prescription opioids are a class of powerful pain relievers, including oxycodone and hydrocodone. The chemical make-up of these prescription drugs is nearly identical to heroin. Opioid- related overdoses are the leading cause of death in the United States, surpassing fatal car accidents. Since 2000, more than 300,000 people have died from fatal opioid overdoses. The ultimate goal of this and similar actions from municipalities across the state is to bring these companies that have profited greatly from the manufacture and distribution of a heavily marketed addictive product into the constellation of financial solutions to address a public health epidemic. "The goal for Whatcom County is to get some kind of judgment that requires these companies to help mitigate [these issues] and help us support programs to combat opioid addiction," Mr. Donovan said. In May 2007, Purdue Pharma, producer of oxycontin, pleaded guilty to misleading the public about the drug's risk of addiction and agreed to pay $600 million in one of the largest pharmaceutical settlements in U.S. history. The City of Everett successfully initiated a lawsuit against Purdue based on increased costs for the city from the use of oxycontin. Research indicates that 80 percent of those addicted to opioids and opiates of any form began their addiction with prescription painkillers. One study by Johns Hopkins Center for Drug Safety and Effectiveness estimated the volume of prescription opioids in circulation in 2017 amounted to 52 pills for every American. In Whatcom County, 30 percent of residents surveyed reported experiencing a situation where they or someone they know personally had medicines taken from them for use or abuse by someone else. "In Whatcom County, the opioid crisis has become a public health emergency, and the costs to the county have been substantial," Deputy Civil Prosecutor Karen Frakes noted in her narrative. "Between 2002-2004 and 2011-2013, the number of deaths attributed to opioids rose over 300 percent in Whatcom County. Moreover, according to the Health Department, the county had the second highest rate of treatment admissions for opioids in Washington State. Of the 39 counties in the state, Whatcom County ranks third for overall negative impacts from heroin abuse and sixth for overall negative impacts from prescription opioids. "The crisis has significantly strained county departments and services," attorneys detailed in their complaint, "including through increased costs in the areas of public health, the county's jail system, the county's court and social service systems, and emergency medical services. Opioid addiction has caused a substantial increase in crime in Whatcom County, including property and retail crimes. The county also estimates that a large proportion of the county's homeless population is addicted to heroin, which compounds the problem of homelessness and makes it more difficult for the county to address." Yet in light of the county's ranking among other communities around the state in the incidence of opioid abuse, the complaints filed by the ACLU seem particularly damning. Whatcom County's policy and practice has been to to deny medically assisted treatment (MAT) for all inmates suffering addiction withdrawal, except for pregnant women, and only now -- years into the epidemic -- is beginning to slow walk the protocol to the wider jail population. "The county's Subutex protocol for pregnant women indicates that county understands that MAT is a safe, effective treatment for OUD," the ACLU reasoned in their complaint. "It also indicates that the county has the means and resources, including trained staff and internal protocols, to provide Subutex to anyone with OUD." As the county prepares to clean house on the failings of the pharmaceutical industry, the county should also proceed to sweep their own front door. [GN] WILL RIVER: Bid to Dismiss Amended "Santiago" Suit Partly OK'd --------------------------------------------------------------- In the case, MARISSA SANTIAGO, individually and on behalf of all others similarly situated, Plaintiff, v. WILL RIVER ASSOCIATES, LLC, Defendants, Case No. 3:17-cv-2054-VAB (D. Conn.), Judge Victor A. Bolden of the U.S. District Court for the District of Connecticut granted in part and denied in part MRA's motion to dismiss the Amended Complaint. Ms. Santiago filed the lawsuit on behalf of herself and a putative class. She claims that MRA violated the Telephone Consumer Protection Act ("TCPA") when it called her cellphone and used a pre-recorded artificial voice message for political polling. Ms. Santiago alleges that at all relevant time for the lawsuit she subscribed to a wireless telephone number. The number -- which ended in "2845" -- was always assigned to a cellphone and not to a landline. She also alleges that the phone was registered on the National Do Not Call Registry. In October 2017, she received the first of three calls she maintains came from MRA and to which she had not consented. Ms. Santiago alleges that none of the three calls seemed to have any human involvement or interactivity and that she heard only an artificial voice. She alleges that the Defendant made the calls at issue using an artificial or prerecorded voice and/or an automated telephone dialing system. She also maintains that that she is informed and believes that MRA called others throughout the United States. Ms. Santiago filed the initial Complaint in the matter on Dec. 7, 2017. The Complaint included two causes of action: violations of the TCPA and "Knowing and/or Willful violation of the TCPA. The Complaint also included allegations on behalf of a putative class. MRA then moved to dismiss the Complaint. First, it argued that dismissal was warranted in its entirety because the Complaint contained no allegation that the calls went to a number assigned to a cellphone. Second, it moved to dismiss the second count, arguing that the Complaint did not plausibly state a claim that MRA's behavior was "willful." Instead of responding to the motion to dismiss, Ms. Santiago filed an Amended Complaint. The Amended Complaint included only one cause of action, but alleged that the phone calls constitute numerous and multiple negligent, willful and/or knowing violations of the TCPA, including but not limited to all of the above-cited provisions of 45 U.S.C. Section 227 et seq. and its implementing regulations. Ms. Santiago seeks statutory damages between $500 and $1,500 per violation, attorneys' fees, costs, and injunctive relief. She also renews her claims on behalf of a putative class. The Amended Complaint includes the class of all persons within the United States who received an artificial voice or prerecorded telephone call from the Defendant, or a caller acting on behalf of Defendant, after October 16, 2013 to said person's wireless telephone number. She alleges that the class would meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. MRA now moves to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. It argues that the Amended Complaint is procedurally improper because it combines both negligent and willful violations into a single count. Second, MRA argues that Ms. Santiago has failed to properly allege that any of the violations were knowing or willful. Third, it moves to "dismiss" any claims for attorneys' fees, arguing that the TCPA does not allow for the recovery of fees and costs. Finally, MRA moves to "dismiss and/or strike" parts of the class definition because it argues those claims are barred by the TCPA's statute of limitations. Ms. Santiago disagrees. She argues that the Amended Complaint adequately places MRA on notice of the claims as required by Rules 8 and 10 of the Federal Rules of Civil Procedure, and that she has included adequate factual allegations demonstrating willfulness on the part of MRA. She argues that attorneys' fees are appropriate because she would be entitled to recover fees as part of a common fund if the class is certified. Finally, she argues that the class allegations should not be dismissed in their entirety, but does not oppose reforming the class definition to start on Dec. 7, 2013, rather than Oct. 16, 2013, for pleading purposes. Judge Bolden finds that accepting all facts in the complaint as true and drawing all inferences in her favor, Ms. Santiago has properly alleged a knowing and willful violation of the TCPA. The motion to dismiss is denied with respect to Count I of the Amended Complaint. While the Amended Complaint could be more clearly drafted, the Judge finds that it appears that Ms. Santiago seeks attorneys' fees primarily -- if not only -- in relation to the class allegations, and her representation of the putative class. And because it could ultimately result in a common fund, as Ms. Santiago argues, without more, he will not strike the request for attorneys' fees from the Amended Complaint. Nevertheless, since Ms. Santiago will be amending her Complaint to address the definition of the purported class, she should amend the Complaint to provide greater clarity over the basis for relief with respect to attorneys' fees and costs. As to the class allegations, the Judge finds that the initial complaint here was filed on Dec. 7, 2017, so calls occurring before Dec. 7, 2013, would be barred by the statute of limitations. Ms. Santiago has consented to reforming the class definition to start on Dec. 7, 2013, rather than Oct. 16, 2013. Since the parties are in agreement, and the statute of limitations clearly forecloses relief on the face of the Amended Complaint, the Judge will grant MRA's motion solely with respect to claims accruing before Dec. 7, 2013. Ms. Santiago should file a Second Amended Complaint to address this issue. For the reasons he stated, Judge Bolden granted in part and denied in part MRA's motion to dismiss the Amended Complaint. The Plaintiff may file a Second Amended Complaint by June 15, 2018, addressing any of the concerns raised. Additionally, the parties will submit a new 26(f) Report by June 30, 2018. A full-text copy of the Court's June 1, 2018 Order is available at https://is.gd/8mDOfu from Leagle.com. Marissa Santiago, Individually and on behalf of all others similarly situated, Plaintiff, represented by Jonathan M. Shapiro -- jshapiro@shapirolawofficesct.com -- Shapiro Law Offices, LLC & Kevin Abramowicz -- kabramowicz@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP. Will River Associates, LLC, Defendant, represented by Dena M. Castricone -- castricone@murthalaw.com -- Murtha Cullina, Henry F. Murray -- hfmurray@lapm.org -- Livingston, Adler, Pulda, Meiklejohn & Kelly, Kristen Luise Zaehringer -- kzaehringer@murthalaw.com -- Murtha Cullina, LLP & Michael J. Donnelly -- mdonnelly@murthalaw.com -- Murtha Cullina LLP. * Skadden Securities Litigators Issue Class Action Update --------------------------------------------------------- Skadden Securities Litigators issued a June 2018 update. This quarter's issue includes summaries and associated court opinions of selected cases principally decided between February 2018 and May 2018. US Supreme Court Actionable Statements Class Actions Fiduciary Duties - Derivative Litigation Loss Causation Materiality Misrepresentations Pleading Standards Proxy Solicitations Scienter Securities Exchange Act Securities Fraud Pleading Standards SLUSA Preclusion Statutory Appraisal US Supreme Court Supreme Court Rules That Pending Class Actions Do Not Toll Limitations Period for Subsequent Class Actions China Agritech v. Resh, No. 17-432 (U.S. Jun. 11, 2018) The U.S. Supreme Court held that a pending class action does not toll the statute of limitations for absent class members who bring a subsequent class action. The Supreme Court thereby declined to extend its holdings in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), in which the Court concluded that a timely filed class action tolls the statute of limitations for absent class members who file subsequent individual claims. China Agritech involved the third of three successive and substantially similar putative class actions alleging that the petitioner, a manufacturer of organic fertilizer, engaged in securities fraud in violation of the Securities Exchange Act. The district court had denied class certification in the prior two actions for failure to satisfy certain requirements of Federal Rule of Civil Procedure 23. The respondents -- absent class members of the first two putative classes -- then filed a third class action outside of the two-year statute of limitations applicable to Exchange Act claims. After the district court dismissed the respondents' action as time-barred, the Ninth Circuit reversed. It held that the equitable tolling doctrine recognized by the Supreme Court in American Pipe and Crown, Cork applied to both individual claims and class actions. The Supreme Court reversed, holding that "American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations." The Court reasoned that the efficiencies that support tolling of individual claims do not also support tolling of class actions, as efficiency favors early assertion of competing class claims. The Court further noted that diligence is generally a prerequisite to equitable tolling and suggested that a class member who waits until the expiration of the limitations period to file a class action has not acted diligently. Supreme Court Holds That Securities Act Class Actions May Be Adjudicated in State Court Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, No. 15-1439 (U.S. Mar. 20, 2018) In a unanimous decision, the U.S. Supreme Court held that state and federal courts have concurrent jurisdiction over class action claims brought under the Securities Act and that such claims are not removable to federal court under the Securities Litigation Uniform Standards Act (SLUSA). The act precludes certain securities class actions based on alleged violations of state law ("covered class actions"). The Supreme Court held that SLUSA does not deprive state courts of jurisdiction to adjudicate securities class actions that allege claims only under federal law and not also state law. The plaintiffs-investors had filed a putative class action in California state court against a telecommunications company, alleging claims solely under the Securities Act in connection with purported misrepresentations made in the defendant's initial public offering (IPO) documents. The company moved to dismiss, arguing that SLUSA stripped state courts of power to adjudicate federal law claims in covered class actions. The California state court disagreed and denied the company's motion to dismiss. The Supreme Court affirmed, holding that the plain language of SLUSA does not limit state court jurisdiction over class actions brought under the Securities Act. The Court explained that SLUSA bars certain securities class actions based on state law, but it "says nothing, and so does nothing, to deprive state courts of jurisdiction over class actions based on federal law." The Court reasoned that a contrary interpretation would improperly prevent state courts from adjudicating any Securities Act claims, even if they did not involve a "covered security," i.e., a security traded on a national stock exchange. As the Court has previously held, SLUSA "expresses no concern with transactions in uncovered securities" and "maintains state legal authority to address them." Accordingly, the Court determined that SLUSA does not deprive state courts of jurisdiction to adjudicate in this area of state concern. The Court further held that SLUSA does not alter the Securities Act's general prohibition against removing state court actions brought under that statute to federal court and also does not authorize removal of federal law class actions. Actionable Statements Second Circuit Affirms Dismissal of Complaint Against Online Marketplace Company Altayyar v. Etsy, Inc., No. 17-1180-cv (2d Cir. Apr. 24, 2018) The Second Circuit affirmed the dismissal of claims that an online marketplace company violated Section 10(b) of the Securities Exchange Act and Sections 15, 11 and 12(a)(2) of the Securities Act by making material misstatements and omissions about the quality of its products. The company is an online forum for purchasing handmade items, vintage goods and craft supplies. The plaintiffs alleged that the company made misleading statements about the quality of its products and its policy on verifying the products because it poorly monitored whether the items sold on its marketplace met its terms and guidelines or if those items infringed on trademarks or copyrights. The court held that the plaintiffs failed to plead that the company made any factual misstatements. It determined that the majority of the alleged statements concerning the company's values and policies, which contained phrases such as "we believe," "we strive" or "we are committed," were not statements of fact but rather, nonactionable vague aspirational statements or statements of opinions. Class Actions Ninth Circuit Affirms Dismissal of Securities Fraud Suit, Holding Plaintiff Failed to Adequately Plead Scienter Webb v. SolarCity Corp., No. 16-16440 (9th Cir. Mar. 8, 2018) The Ninth Circuit affirmed the dismissal of a putative securities fraud class action, holding that the plaintiff failed to plead facts giving rise to a strong inference of scienter. The plaintiff alleged that the defendant corporation misrepresented certain financial information leading up to its 2012 IPO. In 2014, the company revealed that "tens of millions in overhead expenses" had been "incorrectly classified." The plaintiff claimed that this incorrect classification was intentional "in order to make the sales division and company as a whole appear more profitable than it actually was, and thereby maximize their gains from the company's IPO." The Ninth Circuit disagreed. While the panel credited confidential witness statements that the individual defendants knew the company "was generally unprofitable" and that they were "hands-on managers who generally understood the company's accounting obligations, and that they had reason to suspect that the company's internal accounting controls were imperfect," the court held that those allegations "[a]t best ... paint a picture of a mismanaged organization in need of closer financial oversight that made a minute error at a critical stage in its development." In addition, neither individual defendant sold stock during the alleged class period, which also "detract[s] from a scienter finding." The court also rejected the plaintiff's invocation of the core operations doctrine, concluding that the accounting error was not "so dramatic that it would be absurd to think that Defendants-Appellees did not know that something was wrong." Fiduciary Duties-Derivative Litigation Delaware Supreme Court Reverses Court of Chancery's Dismissal Under Corwin Appel v. Berkman, No. 316, 2017 (Del. Feb. 20, 2018) The Delaware Supreme Court reversed and remanded a Court of Chancery dismissal under the Corwin doctrine, holding that stockholders were not fully informed in approving the challenged transaction because the proxy statement contained "materially misleading" disclosures. The action arose from a stockholder challenge to Diamond Resorts International's two-step merger with Apollo Global Management. In 2016, Diamond Resorts engaged in a "public sales process" that resulted in indications of interest from several parties, and ultimately two bids. The Diamond Resorts board voted in favor of Apollo's bid; however, the company's founder and former CEO abstained from that vote and in two board meetings stated "he was disappointed with the price and the Company's management for not having run the business in a manner that would command a higher price, and that in his view, it was not the right time to sell the Company." The proxy did not identify why he abstained from approving the merger. In the case below, the Court of Chancery dismissed the action under Corwin, finding that the merger had been approved by a fully informed, uncoerced stockholder vote. The "sole issue" on appeal was whether the stockholder's approval of the transaction was in fact "fully informed" given that the proxy did not identify the Diamond Resorts founder's reasons for abstaining. The Delaware Supreme Court found that the failure to disclose this information was sufficient to plead a claim that the proxy materially was misleading, explaining that the founder was a "'key board member' if ever there were one," his objections to the sale were clearly and concisely documented in board minutes, and such "views regarding the wisdom of selling the company were ones that reasonable stockholders would have found material in deciding whether to vote for the merger or seek appraisal." The Supreme Court therefore reversed the Court of Chancery's dismissal because, as a pleading matter, the failure to disclose this information stated a claim that the proxy was materially misleading and the stockholder vote uninformed. Court of Chancery Rejects Corwin Defense on Motion to Dismiss In re Tesla Motors, Inc. Stockholder Litig., No. 12711-VCS (Del. Ch. Mar. 28, 2018) Vice Chancellor Joseph R. Slights III declined to dismiss a post- closing damages action arising from Tesla's 2016 acquisition of SolarCity, concluding that the complaint pleaded facts making it reasonably conceivable that Elon Musk, who held 22.1 percent of Tesla's voting power, was a controlling stockholder with respect to the transaction. The stockholder plaintiffs alleged that the Tesla board of directors and Tesla's founder, chairman and CEO, Elon Musk, breached their fiduciary duties in connection with the acquisition. At the time of the transaction, in addition to his stake in Tesla, Musk owned 21.9 percent of SolarCity and was also its chairman. The plaintiffs alleged that SolarCity faced a liquidity crisis at the time of the transaction and that Musk persistently pressed Tesla to pursue an acquisition of SolarCity, in what the plaintiffs characterized as a "bailout" of SolarCity for the benefit of Musk and other allegedly conflicted Tesla board members. The complaint also alleged that the Tesla board never considered forming a special committee and that a majority- conflicted board, including Musk, was heavily involved in the purchase process. The defendants moved to dismiss the action under Corwin, which requires dismissal of post-closing challenges to mergers approved by a fully informed, uncoerced stockholder vote absent a conflicted controller. The plaintiffs countered by arguing that a conflicted controller was present. While emphasizing that whether an individual is a controller is "intensely factual" and "difficult" to resolve on the pleadings, the Court of Chancery ultimately found that the combination of facts pleaded made it reasonably conceivable that Musk was a controller. In its decision, the court found "the combination of well-pled facts relating to Musk's voting influence, his domination of the Board during the process leading up to the Acquisition against the backdrop of his extraordinary influence within the Company generally, the Board level conflicts that diminished the Board's resistance to Musk's influence, and the Company's and Musk's own acknowledgements of his outsized influence, all told, satisfy Plaintiffs' burden to plead that Musk's status as a Tesla controlling stockholder is reasonably conceivable." Because the plaintiffs sufficiently pleaded the presence of a conflicted controller, Corwin could not apply, and the complaint otherwise stated a claim subject to entire fairness review. Court of Chancery Concludes Minority Blockholder Is Not a Controlling Stockholder and Dismisses Claims Under Corwin In re Rouse Props., Inc. Fiduciary Litig., No. 12194-VCS (Del. Ch. Mar. 9, 2018) Vice Chancellor Joseph R. Slights III dismissed breach of fiduciary duty claims and aiding and abetting claims challenging a 33.5 percent stockholder's acquisition of Rouse Properties Inc. under Corwin, finding that the complaint failed to adequately allege the existence of a controlling stockholder or a disclosure violation. In June 2016, more than 80 percent of Rouse's shares voted in favor of a transaction pursuant to which Rouse would be acquired by its 33.5 percent stockholder, Brookfield Asset Management, Inc., for $18.25 per share in cash. The transaction was approved by a special committee of Rouse directors, and the merger was subject to a "majority of the minority" vote condition, which was obtained by the special committee through negotiations with Brookfield. The defendants moved to dismiss under Corwin, arguing that the transaction had been approved by a fully informed, uncoerced stockholder vote and that Brookfield was not a conflicted controller. The plaintiffs, in turn, argued that Corwin did not apply because Brookfield was Rouse's controlling stockholder and the stockholder vote was not fully informed. Vice Chancellor Slights rejected both of the plaintiffs' arguments. First, while acknowledging that "Corwin cannot protect a board's determination to recommend a transaction when it is reasonably conceivable that a conflicted controller may have influenced the board and stockholder decisions to approve the transaction," the Court of Chancery found that the plaintiffs had not adequately pleaded Brookfield was a controlling stockholder. Although a 33.5 percent "majority blockholder," the plaintiffs failed to plead that Brookfield actually dominated and controlled the special committee with respect to the merger or actually dominated and controlled the company more generally. Moreover, the court did not believe that the formation of a special committee or the committee's insistence on a "majority of the minority" condition was evidence of Brookfield's "control," contending that it was simply the product of hard bargaining on behalf of the unaffiliated stockholders, and "to hold otherwise might discourage fiduciaries from employing these important measures for fear they might unwittingly signal that they perceive a minority blockholder with whom they are dealing to be a controller." Because Brookfield was not a controlling stockholder of Rouse, the court concluded that it owed no fiduciary duties to Rouse's stockholders and dismissed the claim for breach of fiduciary duty against Brookfield. The court then rejected the plaintiffs' contention that the disclosures issued in connection with the merger were deficient such that the stockholder vote was not fully informed, analyzing a number of disclosure claims involving the fairness opinion given by Rouse's financial advisor, as well as alleged potential conflicts of Rouse's financial and legal advisors. The court also dismissed an aiding and abetting claim against Brookfield because the plaintiffs failed to plead that Brookfield acted with scienter -- that is, in a culpable state of knowledge that its conduct advocated or assisted any breach of fiduciary duty. Loss Causation Eighth Circuit Affirms Dismissal of Federal Securities Fraud Claim Relating to Stock Redemption Agreement Between Shareholder and Closely Held Corporation Ryan v. Ryan, No. 16-3149 (8th Cir. May 7, 2018) Judge James B. Loken penned the opinion of a unanimous court that affirmed, in relevant part, the dismissal of claims against a closely held corporation and one of its shareholders, under Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder, and various Nebraska state laws. The plaintiff, a former shareholder of the defendant corporation, alleged that the corporation and the defendant shareholder engaged in a series of wrongful acts to cause the plaintiff to sell her shares. Among those alleged wrongful acts was that the corporation misrepresented to the plaintiff that the defendant shareholder would sell her own shares. Judge Laurie Smith Camp of the District of Nebraska dismissed the federal securities fraud claim for failure to plead loss causation, and the Eighth Circuit affirmed. In affirming the district court's dismissal, the Eighth Circuit noted that the plaintiff and the corporation had entered into a stock redemption agreement that stated, in part, that the corporation "shall have the right to repurchase the stock, in whole or in part, owned by Stockholder at any time." Because the corporation had the "absolute right to repurchase," the alleged misrepresentations subsequent to the execution of the redemption agreement could not have caused the plaintiff's losses. Thus, the Eighth Circuit agreed with the district court that the plaintiff did not plausibly plead loss causation. Materiality Northern District of Illinois Denies Dismissal of Federal Securities Fraud Claim Against Insurance Company Carpenters Pension Trust Fund for N. Cal. v. Allstate Corp., No. 16 C 10510 (N.D. Ill. Feb. 27, 2018) The Northern District of Illinois denied a motion to dismiss claims under Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder. The plaintiffs, a class of investors that purchased Allstate common stock, brought their action against Allstate, its CEO and two of its presidents for material false statements and omissions regarding the cause of an alleged spike in the frequency of auto insurance claims. The plaintiffs alleged that, in an effort to attract more auto insurance customers, the defendants reduced their underwriting standards. According to the plaintiffs, this plan resulted in an increase in insurance claims, which the defendants falsely attributed to external factors instead of their own underwriting changes. The plaintiffs alleged that Allstate's stock price fell when it finally disclosed the negative impact of its underwriting standards. Judge Robert W. Gettleman disagreed with the defendants that their alleged misstatements were opinions, not facts, and noted statements such as "our frequency trends have been good." The court held that even if the defendants indicated uncertainty as to the cause of the increased claim frequency with terms such as "we believe" and "we think," those statements could still have been misleading. They would not have been understood by reasonable investors as uncertain when coupled with the defendants' assurances that they had considered all possible reasons for the increase and concluded it was due to external factors, the court stated. Furthermore, Judge Gettleman concluded that the plaintiffs had sufficiently pleaded scienter for the claim that Allstate's two consecutive presidents had engaged in insider trading when they sold off portions of their own shares before disclosing that reduced underwriting standards were impacting claim frequency. The court found the plaintiffs had also sufficiently pleaded loss causation when stock prices dropped more than 10 percent the day after the defendants disclosed the impact of their reduced underwriting standards. Southern District of New York Dismisses Claims That Mobile Technology Company Made Allegedly Misleading Statements About Its Value Finocchiaro v. NQ Mobile, Inc., No. 15 Cir. 6385 (NRB) (S.D.N.Y. Feb. 27, 2018) Judge Naomi Reice Buchwald dismissed claims that a mobile technology company violated Section 10(b) of the Securities Exchange Act by making alleged misstatements about its value and omissions about its acquisitions. The plaintiffs alleged that the company misled investors to believe that the company was "worth billions" and that the company made material omissions by waiting 5 1/2 months to disclose that it had acquired "small, private Chinese companies of little or no value." The court held that statements about the company's worth were immaterial puffery because they were made during negotiations to be acquired when the acquisition proposal was too low. The court also reasoned that the plaintiffs failed to allege that investors reasonably relied on the alleged misrepresentations; the company's financial history was publicly available and the company did not have any fiduciary, long-standing or personal relationship with the plaintiffs. The court further determined that the plaintiffs failed to plead that the company had a duty to disclose the acquisitions of the Chinese companies sooner because there were no allegations of insider trades on confidential information, that a statute or regulation required disclosure or that a statement was otherwise inaccurate, incomplete or misleading because of the alleged omission. Misrepresentations Northern District of Illinois Dismisses Federal Securities Claim for Fraudulent Inducement Petri v. GeaCom, Inc., No. 17-cv-02579 (N.D. Ill. Apr. 6, 2018) Judge Andrea R. Wood granted in part and denied in part defendant GeaCom, Inc.'s motion to dismiss shareholders' complaint alleging that they invested more than $3.5 million in the company based on false representations. Specifically, the plaintiffs alleged that the defendants, both publicly and privately, made several false statements regarding the company's success, sales and customer contracts. The plaintiffs brought five state claims and one federal claim under Section 10(b) of the Securities Exchange Act. While the court allowed some of the state claims to proceed, it dismissed the federal claim, for false and misleading statements, in full. It did so because the plaintiffs failed to specify the reason why the statements were misleading or the facts known to the defendants at the time that rendered the statements misleading. Merely alleging that the statements were false, as the plaintiffs did, is not sufficient to meet the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA). The only allegation that the court found came close to the PSLRA's heightened requirement was the allegation that "none of [GeaCom's] so-called pending sales were ever realized." But the court noted that the defendants' public statements such as "GeaCom 'attracted major strategic relationships,' 'expects to produce' or 'hopes to sell' a certain number of units, anticipated an increase in monthly production, 'started taking orders for shipment,' and future projections of number of units to be sold the following year are not statements regarding pending sales." Similarly, the court noted that the defendants' private statements that a potential customer is "pounding at the door" or has "indicated orders are coming" or "will finalize the order" are not statements about pending sales. Thus, the court found that the plaintiffs failed to plead any false or misleading statement with sufficient specificity, and, in any case, the statements were mere puffery or forward-looking statements protected under the PSLRA's safe harbor provision. Pleading Standards Ninth Circuit Holds That Claims Under Section 14(e) of Securities Exchange Act Need Only Show Negligence Varjabedian v. Emulex Corp., No. 16-55088 (9th Cir. Apr. 20, 2018) The Ninth Circuit held that plaintiffs bringing claims under Section 14(e) of the Securities Exchange Act need only show negligence, not scienter. Five other circuit courts have previously held that Section 14(e) requires a showing of scienter. The Ninth Circuit panel based its decision on the provision of Section 14(e) that makes it unlawful "to make any untrue statement of a material fact or omit to state any material fact ... or engage in any fraudulent, deceptive, or manipulative acts or practices." The word "or," the court reasoned, illustrates that Congress intended to proscribe two different sets of offenses: The former clause prohibits negligent offenses while the latter applies to intentional acts. In creating the circuit split, the Ninth Circuit declined to analogize Section 14(e) claims to claims brought under Section 10(b) of the Securities Exchange Act, as other circuit courts have done. The panel instead looked to Section 17 of the Securities Act, which contains language similar to Section 14(e), prohibiting "any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made ... not misleading." The U.S. Supreme Court, the panel observed, has interpreted that language in Section 17 to require a showing of only negligence. Southern District of California Dismisses Complaint With Prejudice, Holding That Allegations in Separately Filed Complaint Are Not Corrective Disclosures In re BofI Holding Inc. Sec. Litig., No. 3:15-cv-02324-GPC-KSC (S.D. Cal. Mar. 21, 2018) Judge Gonzalo P. Curiel dismissed with prejudice a complaint brought under Section 10(b) of the Securities Exchange Act alleging that the defendant bank made false or misleading statements regarding the adequacy and effectiveness of its internal controls and risk management, holding that the plaintiff failed to adequately plead loss causation. First, the court held that short-seller articles regarding the defendant corporation could not qualify as corrective disclosures "because they relied on publicly available information, and offered no analysis not generally available to the rest of the market." While the plaintiff alleged that "the market did not appreciate the implications of the publicly available information relied upon" in the short-seller articles, "those conclusory allegations" did not "suggest any plausible reason why market participants would not have understood the implications of the information in front of them." Second, the court held that allegations in a complaint in another action could not, on their own, serve as a corrective disclosure. Rather, "allegations in a complaint are analogous to an announcement of internal or regulatory investigations into misconduct, which have been held insufficient, on their own, to serve as corrective disclosures." Such revelations "raise[] merely a 'risk' or 'potential' of fraud" but are not themselves "a disclosure of fraud." An appeal of this decision is pending before the Ninth Circuit. Northern District of California Holds That Affiliated Ute Presumption Does Not Apply When the Only Omission Alleged Is of the Truth That an Affirmative Misstatement Misrepresents In re Volkswagen "Clean Diesel" Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2672 CRB (JSC) (N.D. Cal. Mar. 2, 2018) Judge Charles R. Breyer granted the defendants' motion to dismiss claims brought under Section 10(b) of the Securities Exchange Act, holding that the plaintiff failed to adequately plead that it relied on the defendants' emission-related statements when it decided to purchase the securities at issue. The district court previously held that plaintiffs could rely on a presumption of reliance under Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972), because the allegations were for fraudulent omissions rather than misstatements. The defendants asked the court to reconsider that holding in light of the Second Circuit's decision in Waggoner v. Barclays PLC, 875 F.3d 79 (2d Cir. 2017), where that court held that the Affiliated Ute presumption does not apply when the only omission alleged is of the truth that an affirmative misstatement misrepresents. The district court found Waggoner persuasive and held that the plaintiff could not rely on the Affiliated Ute presumption to plead reliance. The theory behind the Affiliated Ute presumption is that direct proof of reliance in omission cases requires "proof of a speculative negative" -- that "I would not have bought had I known." Blackie v. Barrack, 524 F.2d 891, 908 (9th Cir. 1975). The court further explained that "whether the Affiliated Ute presumption of reliance is applicable is a decision that should be based on whether the presumption's purpose -- of avoiding the need to prove a speculative negative -- is implicated." Because the plaintiff's claims here were predicated on the defendants' affirmative misstatements rather than omissions, the Affiliate Ute presumption of reliance did not apply. Proxy Solicitations Northern District of Indiana Grants Motion to Dismiss Proxy Solicitation Claims Against Technology Company Trahan v. Interactive Intelligence Grp., Inc., No. 1:16-cv-03161- SEB-MPB (S.D. Ind. Mar. 28, 2018) Judge Sarah Evans Barker granted a motion to dismiss claims alleging technology company Interactive Intelligence Group issued a false and misleading proxy solicitation in connection with its shareholders' approval of a proposed merger, in violation of Sections 14(a) and 20(a) of the Securities Exchange Act. At the heart of the plaintiff's claims was his estimation that the proxy solicitation failed to provide shareholders with information about Interactive's future success commensurate with the directors' "public puffing" about the predicted growth of a new product. The plaintiff alleged that the proxy solicitation statement was false and misleading in four respects: (1) it omitted longer-range projections from its financial forecasts; (2) it omitted separate financial projections for its three business lines; (3) Interactive's financial advisor used an inappropriate method to calculate the terminal value; and (4) Interactive's directors expressed insufficient optimism about the possible future success of the business, inducing shareholders to approve the merger rather than sell as a going concern. The district court ruled that the plaintiff showed neither materiality nor objective and subjective falsity as to any of the alleged omissions or misrepresentations. The court reasoned the emerging technology about which directors allegedly puffed was too new to necessitate any longer than the 1 1/2-year year forecasts used. Moreover, shareholders held an interest in Interactive's entire enterprise, not in any one of its business lines, and Interactive was not proposing separate treatment. Further, Interactive's financial advisor sufficiently described its analysis to permit curious shareholders to do their own calculations. And finally, as a running theme, the court noted that the plaintiff could not show that the directors knew the business would be more valuable as a going concern than its merger value based exclusively on the hopes for success that Interactive publicly professed. The court also ruled that the directors' statements in the proxy solicitation were entitled to protection under the PSLRA's safe harbor provision. The court noted that all statements at issue were forward-looking and accompanied by cautions, and the plaintiff failed to plead facts showing that Interactive made the statements with actual knowledge of their falsity. Finally, the court characterized the plaintiff's loss causation allegation as "no more than a speculative possibility that he was economically injured by any misrepresentation in connection with the Merger." As such, he could not plead the element of loss causation, and the district court dismissed his claims with prejudice. Scienter Second Circuit Affirms Dismissal of Securities Fraud Claims Against Bank Sfiraiala v. Deutsche Bank Aktiengesellschaft, No. 17-2560 (2d Cir. Apr. 13, 2018) The Second Circuit affirmed the dismissal of claims that a bank and its officers violated Section 10(b) of the Securities Exchange Act by allegedly misrepresenting the effectiveness of its internal controls concerning anti-money laundering compliance. The court determined that the plaintiffs failed to adequately plead a strong inference of scienter. The court first held that allegations that the bank's Russia office had a culture of "greed and corruption" were insufficient because they failed to show that the individual defendants personally benefited from making the alleged misrepresentations about the internal control. The court also held that the plaintiffs failed to sufficiently allege conscious misbehavior or recklessness. The plaintiffs' allegations that a consent order between the bank and its state regulator -- in which the bank admitted that it had serious compliance deficiencies and demonstrated that one of its local offices allowed a money laundering transaction to take place -- did not show that the individual defendants knew of any wrongdoing at the time they allegedly made any misrepresentations. The consent order confirmed that any alleged suspicious illegal laundering activities were never escalated out of the local office and thus, the bank did not learn of them until after the issue was escalated and the bank had commenced an internal investigation. The court also found that certain public regulatory reports criticizing the bank's regulatory reporting controls did not support an inference of scienter because the reports did not concern the bank's money laundering controls, which was the subject matter of the alleged misrepresentations. Finally, the court held that an agreement between the bank and state and federal regulators to improve the bank's anti-money laundering controls showed no indication that the bank had failed to comply with its obligations pursuant to the agreement. Securities Exchange Act Fourth Circuit Holds Plaintiff Adequately Alleged Exposure Element of Loss Causation Pursuant to 'Amalgam' of Corrective Disclosure and Materialization of Risk Theories Singer v. Reali, No. 15-2579 (4th Cir. Feb. 22, 2018) A split panel for the Fourth Circuit held that a plaintiff sufficiently pleaded loss causation to support a claim under Section 10(b) of the Securities Exchange Act where the exposure element of the loss causation analysis was based on "an amalgam" of the corrective disclosure theory and the materialization of the risk theory. TranS1, Inc., a medical device company that sells a system designed for minimally invasive surgery (the System), derives its revenues from sales of the System and related surgical instruments, as well as from a share of the reimbursements made by health insurers and government-funded health care programs to surgeons. The plaintiff brought a putative class action against TranS1 and its officers, under Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder, alleging that the defendants perpetrated a fraudulent scheme to instruct and encourage surgeons to secure unwarranted reimbursements from health insurers and government-funded health care programs by continuing to use an incorrect Category I code (which was more likely to result in reimbursement) after January 1, 2009, when the American Medical Association required procedures using the System to be coded as Category III. The complaint alleged that TranS1 made misrepresentations and omissions in its Securities and Exchange Commission (SEC) filings and press releases by failing to disclose that a substantial portion of its revenues were generated by the purportedly fraudulent reimbursement scheme or that the company was engaged in the scheme. The Eastern District of North Carolina dismissed the plaintiff's second amended complaint. On appeal, a significant issue was whether the complaint adequately pleaded the two elements of loss causation: (1) the "exposure" of the defendant's misrepresentation or omission (i.e., the revelation of new facts suggesting the defendant perpetrated a fraud on the market), and (2) that such exposure resulted in the decline of the defendant's stock price. The defendants argued that the plaintiffs failed to plead the exposure element under either the materialization of a concealed risk theory or the corrective disclosure theory. A majority of the Fourth Circuit concluded that the complaint sufficiently alleged exposure by an amalgam of the two theories. The majority noted that the ultimate inquiry under both theories is the same: whether a misstatement or omission concealed something that, when disclosed, negatively affected the value of the security. The complaint relied on a Form 8-K filed by TranS1 after market close on October 17, 2011 (reporting it had received a subpoena from the Department of Health and Human Services under the authority of the federal health care fraud and false claims statutes) and an analyst report published the next day (revealing that the subpoena sought reimbursement communications with surgeons and that half of TranS1's revenues came from surgeons who still used the Category I reimbursement code). The two documents, the majority concluded, collectively revealed enough information for investors to recognize that TranS1 had perpetrated a fraud on the market. The majority also concluded that the complaint's allegation that the Form 8-K and analyst report caused Trans1's stock price to plummet more than 40 percent on the day the analyst report was published was "wholly adequate" to demonstrate that the exposure of TranS1's fraud was at least one substantial cause of the decline in value. Judge G. Steven Agee dissented, highlighting decisions from the Ninth and Eleventh circuits to support his opinion that the analyst report and Form 8-K's disclosure of the investigation were insufficient to demonstrate loss causation since, without more, they would not reveal fraud. Judge Agee also opined that the report's disclosure about the source of TranS1's revenues "just as plausibly" suggested non fraudulent activity. The Fourth Circuit has not had prior occasion to apply the materialization of the concealed risk theory; the majority's incorporation of that theory in the amalgam analysis could signal a future express adoption of the theory. Moreover, the court's holding leaves open the question of how much more beyond disclosure of an investigation will be required to establish loss causation. Eastern District of Virginia Grants Motion to Dismiss Section 10(b) Claim, Holding Plaintiffs' Complaint Fails to Plead Any Specific Allegations of Fraud Langley v. Booz Allen Hamilton Holding Corp., No. 1:17-cv-696 (LMB/TCB) (E.D. Va. Feb. 8, 2018) On June 15, 2017, Booz Allen Hamilton Holding Corporation (BAH) disclosed that its subsidiary, Booz Allen Hamilton Inc., was informed that the Department of Justice was conducting a civil and criminal investigation regarding certain elements of the subsidiary's cost accounting and indirect cost charging practices with the U.S. government. On June 16, 2017, the plaintiffs alleged that BAH's stock price fell approximately 19 percent. On June 19, 2017, a putative class action complaint was filed against BAH and certain of its officers alleging that the defendants made materially false and misleading statements regarding BAH and its subsidiary in violation of Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder. On October 20, 2017, lead plaintiffs Uniformed Sanitationmen's Association Local 831 Compensation Accrual Fund and Teamsters Locals Nos. 175 & 505 Pension Trust Fund (collectively, the plaintiffs) filed an amended complaint alleging that the defendants falsely and/or misleadingly represented that BAH "was 'on the path to sustainable quality growth,'" that "BAH 'must comply with laws and regulations relating to the formation, administration, and performance of U.S. government contracts,'" that BAH was complying with ethical requirements and that "BAH was expecting a 'slight uptick in billable expenses.'" The plaintiffs alleged that "these statements were materially false or misleading because they failed to disclose that BAH was defrauding the government." The defendants (who were represented by Skadden) filed a motion to dismiss the plaintiffs' amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PSLRA. On February 8, 2018, the court granted the defendants' motion. The court held that, even assuming the truth of the plaintiffs' allegations and drawing all reasonable inferences in the plaintiffs' favor, the complaint fell short of alleging facts sufficient to state a claim under Section 10(b). The court reasoned that the "gravamen of plaintiffs' Complaint is that defendants' various statements were fraudulent or misleading because defendants made the statements while, at the same time, failing to disclose that BAH was committing fraud on the government; however, plaintiffs do not include any specific allegations relating to the commission of fraud." The court observed that the plaintiffs did not allege any details about the commission of the alleged fraud, including "who was committing the fraud, what the nature or extent of the fraud was, or for how long the fraud had been taking place." Rather, the amended complaint merely alleged "a variety of relatively weak circumstantial evidence -- such as various corporate officers' stock trades during the class period and pre-class period examples of fraudulent behavior at BAH, all of which were promptly disclosed to the public." The court remarked that drawing an inference of fraud from such allegations would require it "to pile inference upon inference, all the while disregarding the heightened requirements of the PSLRA," which the court refused to do. The decision illustrates the exacting level of scrutiny that courts will apply and the factual specificity courts will require with respect to complaints alleging securities fraud in the Fourth Circuit. Securities Fraud Pleading Standards Securities Fraud Claims Against Chinese Social Network Dismissed With Prejudice Goldsmith v. Weibo Corp., No. 17-4728 (SRC) (D.N.J. Jun. 6, 2018) Judge Stanley R. Chesler dismissed a complaint made under Sections 10(b) and 20(a) of the Securities Exchange Act alleging that Weibo made false and misleading statements in public filings with the SEC regarding its compliance with Chinese law and regulations concerning a licensing requirement for companies engaged in internet transmissions. Chinese law and regulations require a company to obtain a government-issued license before it may engage in the internet transmission of audio-visual programs. However, Weibo is not eligible for a license because the license is only available to state-owned companies. According to the complaint, Weibo stated in SEC filings that Weibo "was not required to have a license" and "gave investors the false impression that Weibo was in full compliance with Chinese laws and regulations by operating through third-party websites." The district court held that the plaintiff failed to identify which statements in Weibo's public disclosures bolstered the impression that Weibo was in compliance with China's laws, given that Weibo disclosed its noncompliance. Weibo's 2014 prospectus and Form 20-F annual reports contain a section titled "Risks Relating to Doing Business in China," which states that uncertainties in China's licensing scheme may adversely affect Weibo, as the company lacks a license because it is not eligible for one. Further, the disclosures state that Weibo intends to apply for a license in the event that licenses become available to companies not owned by the state. First Circuit Holds That Pharmaceutical Company Did Not Mislead Investors When It Underestimated Time for Filing New Drug Application Kader v. Sarepta Therapeutics, Inc., No. 17-1139 (1st Cir. Apr. 4, 2018) The First Circuit affirmed the dismissal of claims brought under Section 10(b) of the Securities Exchange Act alleging that a pharmaceutical company misled investors about the time it would take to file a new drug application with the Food and Drug Administration (FDA) for its Duchenne muscular dystrophy drug. The plaintiffs alleged that the company fraudulently misrepresented the FDA's communications to them concerning the drug's data and the expected timeline of approval after it disclosed that the company's new drug application (NDA) would be half a year behind schedule. The court determined that the plaintiffs failed to adequately allege any material misrepresentations or omissions by the company. The court reasoned that the FDA's public statement in October 2014 addressing questions it received from patients did not suggest that the FDA had previously communicated concerns to the company that would have rendered its previous statements -- that it expected to file an NDA at the end of 2014 -- false or misleading. The court also reasoned that an interim request in July 2014 from the FDA for additional data did not show that the company knew it could not reasonably expect to file an NDA by the end of 2014. The company had previously disclosed to investors a similar request for data from the FDA in April 2014, and the court could not assume that this new request had a materially different impact on the timing for approval. The court further held that the plaintiffs had not adequately pleaded scienter: "When defendants do not divulge the details of interim 'regulatory back-and-forth' with the FDA, that alone cannot support an inference of scienter . . . when the defendants do provide warnings in broader terms." The fact that the company stood to gain an advantage over its competitor by filing its application first did not give rise to an inference of scienter. Materiality Second Circuit Vacates Jury Conviction of RMBS Broker-Dealer United States v. Litvak, No. 17-1464-cr (2d Cir. May 3, 2018) The Second Circuit vacated the jury conviction of a residential mortgage-backed securities (RMBS) broker-dealer on the charge that he violated Section 10(b) of the Securities Exchange Act by making material misrepresentations in connection with a particular RMBS transaction. At trial, the government alleged that the broker-dealer lied to a trader about the price at which a certain bond could be obtained from a seller, causing the trader to pay $73,000 more for the bond than he otherwise would have. The trial court permitted the trader to testify that he had believed that the broker-dealer was acting as his agent during the course of that transaction. The government submitted to the jury that although the trader's belief was mistaken because broker-dealers are principals and not agents, the trader's belief nonetheless was evidence that the broker-dealer's misstatements were material. The Second Circuit vacated the conviction. The court first determined that "there was sufficient evidence for a rational jury to find [the broker-dealer's] misstatements material beyond a reasonable doubt," regardless of the trader's belief. The court, however, reasoned that the trial court's admission of the trader's mistaken testimony was erroneous. It reasoned that the materiality standard is objective and "centers on the views of a hypothetical, reasonable investor in the market at issue," that reasonable investors in the RMBS market tend to be more sophisticated than investors in more mainstream markets and that "[m]ateriality cannot be proven by the mistaken beliefs of the worst informed trader in a market." The court concluded that the admission of "evidence of the idiosyncratic and erroneous belief" of the RMBS trader was not harmless because it could have "substantially influence[d] the jury." Omissions Southern District of New York Dismisses Claims Against Pharmacy Benefit Management Organization In re Express Scripts Holding Co. Sec. Litig., No. 16-cv-03338-ER (S.D.N.Y. May 21, 2018) Judge Edgardo Ramos dismissed claims that a pharmaceutical benefit management company violated Section 10(b) of the Securities Exchange Act by making alleged misstatements about the strength of its contractual relationship with its largest client and how it treated that contract for accounting purposes. The court had previously dismissed the plaintiffs' first complaint, finding that statements about the company's negotiations with its client regarding the contract, which were disclosed, were not actionable. The court also had determined that there were no plausible allegations that the company did not believe its statements regarding the useful life of the contract for accounting purposes at the time they were made. The court reasoned that the company's public disclosures sufficiently warned investors that its contract might not be renewed. In their amended complaint, the plaintiffs alleged that the company misled investors to believe that the parties were actively engaged in good faith discussions to renew the contract and that the company accounted for the contract as if it were "highly probable" that it would be renewed for another five-year period. The court held that the plaintiffs' amended complaint failed to allege new facts showing that the company misled investors about the strength of its relationship with its client and the nature of the contract renewal negotiations. The court again reasoned that high-level statements disclosing the company's ongoing negotiations with its client were not actionable. The court further determined that the plaintiffs' amended allegations about the accounting treatment of the contract were not actionable; the plaintiffs failed to adequately allege that generally accepted accounting principles required the company to revise its accounting treatment of the contract earlier than it did. Finally, the court determined that the plaintiffs failed to adequately allege scienter. The plaintiffs failed to allege any facts showing that the company knew that its public statements about the contract renewal were incorrect or that it had specific knowledge of or access to facts that contradicted those disclosed in public statements. SDNY Dismisses Putative Class Claims Against Fast-Food Retailer Ong v. Chipotle Mexican Grill, Inc., No. 16 Civ. 141 (KPF) (S.D.N.Y. Mar. 22, 2018) Judge Katherine Polk Failla dismissed a second amended complaint brought by a putative class of investors alleging that a fast- food retail company violated Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder by failing to disclose certain conduct related to the company's food handling processes that led to several E. coli outbreaks at restaurants across the United States and a related investigation by the Centers for Disease Control and Prevention (CDC). The plaintiffs alleged that the company failed to accurately disclose (1) the company's transition from using central commissary kitchens to prepare and process food to in-store processing and the attendant increased risk of food-borne illness outbreaks; (2) the extent of certain E. coli outbreaks that occurred at the company's restaurants; (3) the status of the CDC's investigations into the outbreaks; and (4) the impact of the outbreaks on the company's risk profile, profitability and financial outlook. The plaintiffs further alleged the company made misleading statements about its ability to trace its ingredients purchased through various supply chains. The court determined that the plaintiffs failed to adequately allege any material misrepresentation or omission because the company made adequate disclosures about the risks associated with the company's food processing, the status of CDC investigations and the company's risks and financial outlook. Although additional E. coli outbreaks were alleged to have been concealed, the company was not required to update that "lengthy disclosure" to account for each of the E. coli outbreaks. The court also determined that statements about the status of the CDC investigations were not misleading because in context, the company was "only speaking of the 43 restaurants they were reopening rather than the entirety of the CDC's investigation." Similarly, the alleged omission regarding the traceability of the company's food ingredients was not material because "no reasonable investor would have considered significant [the company's] ability to trace ingredients through its supply chain in deciding whether to invest in [the company]." The court also held that the plaintiffs failed to adequately plead a strong inference of scienter because they failed to show that the defendants had access to material information (i.e., instances of customer sickness) that was allegedly concealed. The court also reasoned that stock sales that occurred months before the alleged corrective disclosures did not create a strong inference of scienter because the transactions were not unusual. The court reasoned that the more plausible and nonculpable inference is that "the negative publicity associated with the food-borne illness outbreaks and the consequent diminution in value of [company] stock" caused the executives to sell less stock after the disclosure. District of Colorado Dismisses Securities Fraud Claims Against Poultry Company Premised on Purported Price-Fixing Conspiracy Hogan v. Pilgrim's Pride Corp., No. 16-cv-02611-RBJ (D. Colo. Mar. 14, 2018) Judge R. Brooke Jackson dismissed putative class claims against a poultry company alleging that the company violated Section 10(b) of the Securities Exchange Act by failing to disclose that it was engaging in a price-fixing conspiracy that only came to light when the company was sued for antitrust violations. The plaintiff alleged that the company colluded with other poultry companies to depress production of broiler chickens so as to artificially stabilize their prices and artificially inflate the value of the company's securities. The plaintiff further alleged that the company effected the reduction by, among other means, destroying eggs, reducing breeder flocks, destroying chicks and shutting down facilities. The plaintiff alleged that evidence of this conspiracy was that the Georgia Department of Agriculture's Georgia Dock pricing index -- an industry index of broiler prices compiled by telephone calls to top broiler producers -- was higher than other industry indexes that performed verification of prices reported by broiler producers. The court first determined that because the complaint was premised on an alleged underlying antitrust conspiracy, the plaintiff was required to plead with particularity the facts "that establish the existence of the antitrust conspiracy." Although the court determined that the plaintiff met the PSLRA's heightened pleading standard with respect to the alleged falsity of the company's statements, the plaintiff failed to meet the standard with respect to the underlying conspiracy. The court found that the plaintiff failed to adequately allege a Sherman Antitrust Act claim because the allegations "lack[ed] facts about the means and amounts by which the alleged conspirators cut production or when those particular cuts occurred," making it "difficult to determine whether the conspirators were acting in parallel." The court also determined that even if the plaintiff had adequately pleaded parallel conduct, the plaintiff failed to plead that there was any agreement among the alleged co- conspirators, noting that "membership in industry associations, attendance at industry conferences" were insufficient indicia of an agreement. The court concluded that the complaint essentially "plead[ed] fraud by innuendo" and dismissed it without prejudice. SLUSA Preclusion Eighth Circuit Rules That State Law Claims by Retail Investors Against Brokerage Firm Are Precluded by SLUSA Zola v. TD Ameritrade, Inc., No. 16-3013 (8th Cir. May 10, 2018) In an opinion by Judge Roger L. Wollman, the Eighth Circuit held that the class action complaints of retail investors alleging various state law claims were precluded by SLUSA. The plaintiffs in three related class complaints alleged that the brokerage firm defendant breached its "duty of best execution" when it routed orders to buy and sell securities to trading venues that paid the most "kickbacks." Judge Joseph F. Bataillon of the District of Nebraska had dismissed all complaints, ruling that the claims were precluded by SLUSA. Relying on its recent decision in Lewis v. Scottrade, Inc., 879 F.3d 850 (8th Cir. 2018), the Eighth Circuit affirmed, holding that the complaints were a "covered class action" under SLUSA that alleged "a misrepresentation or omission" of a material fact that was "in connection with the purchase or sale of a covered security." The plaintiffs first argued that they were not pleading that the defendants made a misrepresentation or omission but rather, that they breached their uniform client agreement by failing to consider required factors for directing orders. The Eighth Circuit disagreed. Although it noted that the complaint carefully avoided words that expressly alleged fraud such as misrepresentation, omission or deception, the focus of the plaintiffs' claims was the defendant's alleged failure to disclose the fact that it was selling its order flow to the highest bidder. In coming to this conclusion, the Eighth Circuit noted "a disconnect between the alleged breach ([the defendant]'s failure to consider the factors set forth in the client agreement) and the damaged sought (disgorgement of profits) based on [the defendant]'s misconduct (engaging in a secret scheme to increase profits at the expense of its clients." The plaintiffs then argued that under Chadbourne & Parke LLP v. Troice, 571 U.S. 377 (2014), the purchase or sale of a security must be "induced by the fraud" in order to meet SLUSA's "in connection with" requirement. Because the defendant's alleged misconduct did not affect the plaintiffs' decision to buy or sell a security, the plaintiffs reasoned that their claims were not precluded by SLUSA. The Eighth Circuit, however, rejected the plaintiffs' contention, noting that the correct standard for the "in connection with" requirement was that the alleged fraud "coincide" with a securities transaction. Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. 71 (2006). Because there was no dispute that the plaintiffs purchased and sold covered securities and that the defendant allegedly received kickbacks when it routed those purchases and sales, the "in connection with" requirement was met. Thus, the Eighth Circuit held that the plaintiffs' claims were precluded by SLUSA and affirmed the district court's dismissal. Statutory Appraisal Court of Chancery Relies on Discounted Cash Flow Analysis to Determine Fair Value Below Deal Price in Statutory Appraisal In re Appraisal of AOL Inc., No. 11204-VCG (Del. Ch. Feb. 23, 2018) In the statutory appraisal of AOL Inc., Vice Chancellor Sam Glasscock III relied on a discounted cash flow (DCF) analysis to determine that the fair value of AOL's stock was below the deal price of $50 per share. On the facts of the case, the Court of Chancery stated that it was a "close question" as to whether the AOL transaction was "Dell compliant" -- in other words, whether the transaction "represent[ed] an unhindered, informed, and competitive market valuation," in accordance with the Delaware Supreme Court's recent ruling in Dell. However, while finding that many of the indicia of a competitive market process were present, the Court of Chancery concluded that certain statements made by AOL's CEO, the lead negotiator of the deal, signaled to the market that there was no other deal to be made and that no topping offers would therefore be successful. The court held that the "unusually preclusive" public statements of the CEO, when combined with other attributes of the transaction, rendered the deal price unreliable as the sole indicator of fair value. Moreover, because the court could not rely on deal price as the sole determinant of fair value, it was unable to find a principled way to assign the deal price any weight in its fair value analysis. Therefore, the court assigned full weight to its own DCF valuation and "relegate[d] transaction price to a role as a check on that DCF valuation." The result of the vice chancellor's DCF analysis was $48.70 per share, which represented $1.30 less than the deal price. Court of Chancery Relies on 30-Day Average Unaffected Trading Price in Statutory Appraisal Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., No. 11448-VCL (Del. Ch. Feb. 15, 2018) In this statutory appraisal action involving Aruba Networks, Inc., Vice Chancellor J. Travis Laster determined that the most reliable indicator of fair value was the 30-day average unaffected trading price of Aruba's stock on the Nasdaq composite. In the decision, the Court of Chancery accorded full weight to the unaffected trading price and gave no weight to the merger price. Vice Chancellor Laster held that under the Delaware Supreme Court's recent decisions involving the appraisals of Dell and DFC Global, "when the subject company's shares are 'widely traded on a public market based upon a rich information base,' then the fair value of a proportionate interest in the company as a going concern would 'likely be best reflected by the prices at which [the] shares were trading as of the merger.'" Put differently, "when the market for a company's shares has the requisite attributes [associated with market efficiency], the stock price is 'likely a possible proxy for fair value.'" Thus, the court reasoned that "[u]nder Dell and DFC, the critical question is whether the market for the subject company's shares has attributes associated with market efficiency." Because Aruba's stock price exhibited the same requisite attributes of market efficiency as those found sufficient in Dell and DFC, the court held that "Aruba's market price provides reliable evidence of the going concern value of the firm." Analyzing the reliability of deal price, the court interpreted Dell and DFC to hold that a sales process is not "sufficiently bad to warrant discounting the deal price" so long as "the deal in question was an arm's-length transaction," and that a court should not inquire "into whether a different transaction process might have achieved a superior result." However, in this case, the court ultimately found that the deal price was unreliable because, among other uncertainties, relying on the deal price would require excluding both synergies and the value of a reduction in agency costs, both subjective factors. Therefore, the court accorded full weight to the unaffected market price of $17.13, which it found "provides the more straightforward and reliable method for estimating the value of the entity as a going concern." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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