/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180726.mbx C L A S S A C T I O N R E P O R T E R Thursday, July 26, 2018, Vol. 20, No. 149 Headlines 7-ELEVEN INC: Nerestant Seeks Unpaid Wages under FLSA ACUITY BRANDS: "Asanhussainsyedmohid" Suit Moved to N.D. Ga. ACUITY BRANDS: "Gray" Suit Transferred to N.D. Ga. AKORN INC: Court Awards $6.7MM in Attys' Fees in Securities Suit ALTICE USA: Faces "LaPoint" Class Action over 2017 IPO AMBROSINO CONSTRUCTION: Failed to Post Wage Notices, Says "Laso" AMCOL SYSTEMS: Court Dismisses "Magana" FDCPA Suit AMERICAN HONDA: "Williams" Fair Market Value Questions Certified ANALOGIC CORP: "Rosenblatt" Suit Seeks to Halt Sale to Altaris APPLIED BUILDING: Rhoden Seeks Unpaid OT Wages under FLSA AUSTIN INDUSTRIAL: "Hefner" Sues Over Unpaid Overtime BANCO BILBAO: MGB Bond Buyer Files Suit Over Bond Price-fixing BAY AREA REGIONAL: Ex-employees Seek Final Pay, Benefits BEHR PROCESS: Court Stays "Domson" Suit BENJAMIN MOORE: Court Denies Bid to Dismiss "Poole" Suit BIG 5: Sandoval Seeks Unpaid Wages under Labor Code BITCONNECT: Youtube Added Defendant in Class Action BNY MELLON: Barrack, Rodos Disclosed Proposed Settlement BOLLA OPERATING: Benitez Seeks Unpaid Wages under Labor Law BONHAMS & BUTTERFIELDS: Wu Sues Over Blind-Inaccessible Website CALIFORNIA: Suit Challenging IDEA Moved to N.D. Calif. CALIFORNIA TEACHERS: Martin Sues over Share Service Fees CIGNA CORPORATION: "Zhu" Moved to Eastern Dist. of Pennsylvania CINTAS CORP: "Paramo" Labor Suit Transferred to N.D. Cal. CIS SERVICES: "Edwards" Suit Seeks to Recover Unpaid OT Wages COLLINS CAREER: "Cyfers" Suit Moved to District of West Virginia CONTRACT METAL: Faces "Escorza" Suit over Meal Breaks CREDITORS RELIEF: Court Dismisses "Hale" TCPA Suit DALMATIAN FIRE: Rutledge and Davis Sues Over Unwanted Faxed Ads DIVERSIFIED CONSULTANTS: "Underwood" Disputes Collection Letter EDRIVING LLC: "Glynn" Suit Moved to Northern Dist. of Illinois EIGHT FAHRENHEIT: "Anderson" Action to Recover Unpaid Overtime ENVISION HEALTHCARE: Modi Balks at Merger Deal with Enterprise FEDERAL WARRANTY: "Woturski" Suit Moved to District of New Jersey FIAT CHRYSLER: Bid for Production of MDL 2777 Transcripts Denied FIRST COMMUNITY: Court Certifies Class in "Lavigne" TCPA Suit FITBIT INC: Court Narrows Claims in "McLellan" Suit FORCEMANAGEMENT GROUP: Veliz Seeks OT & Minimum Wages FORT BEND COUNTY, TX: Final Judgment in "Roach" Suit Affirmed FULTON CTY, ATLANTA: Property Owners Sue Over Excessive Taxes GENERAL MOTORS: Court OKs FAC Filing in Defeat Device Suit GOGO INC: Kahn Swick Files Securities Class Suit HEALTHPORT TECHNOLOGIES: Class Action Removed to Federal Court HENKEL CORP: Wins Judgment on Pleadings in Slack-Fill Suit HIGHPOINT SOLUTIONS: Court Grants Bid to Dismiss "Moore" Suit INSTITUTIONAL MULTIFAMILY: Kadir Sues over Tenants Excessive Fees INTERNATIONAL DAIRY: Sued over Bait-and-Switch Ice Cream Treat IRVING LANGER: Court Narrows Claims in "Contrera" FLSA Suit JOHNSON & JOHNSON: "Salazar" Suit Moved C.D. California JONATHAN NEIL: Court Denies Prelim Approval of "Brown" Settlement JUMPSTART CONSULTANTS: Robinson Seeks Unpaid Overtime under FLSA KEHE DISTRIBUTORS: "Russell" Suit Settlement Has Prelim Approval KING INVESTMENT: Barren Alleges Financial Fraud & Harassment KNORR-BREMSE AG: "Sey" Suit Seeks Damages for Sherman Act Breach LFR MANAGEMENT: "Watson" Suit to Recover Unpaid Overtime LOT II LLC: Mabry Alleges Unlawful Termination of Employment MARABELLA PIZZA: Luis Seeks Minimum Wages & Overtime under FLSA MATTERSIGHT CORP: "Shade" Suit Seeks to Halt Sale to NICE Ltd. MCDONALD'S: Most Scoff at Cheese Lawsuit, But Few Are Lovin' It MDL 2151: 9th Cir. Affirms Denial of Relief from Judgment MDL 2724: Filing of Consolidated Amended Antitrust Suit Allowed MICROSOFT CORP: Sex-Bias Suit Denied Class-Action Status MICROSOFT CORP: Court Narrows Claims in ERISA Suit MMDO CORP: Ofarrill Seeks Unpaid OT & Minimum under FLSA MONAT GLOBAL: Stefforia Sues over Defective Hair Products MONSANTO COMPANY: Carroll Sues over Sale of Herbicide Roundup NEUMAN'S KITCHEN: Unlawfully Retained Tips, Demasi & Graham Claim NEW WEST: Court Grants Qualified Protective Order in "Gordon" NEW YORK: Class Decertification in "Monaco" Upheld NEW YORK UNIVERSITY: Court Denies Bid to Amend "Basso" Suit NEW ZEALAND: Kiwi Case Opens Class Action Door NHL: Retired NHLer Battles Concussions NY COMMUNITY: "Coty" Suit Seeks Reimbursements, Overtime Pay OCEAN DRIVE: "Vasquez" Suit Seeks Payment of Overtime Wages, Tips OFF-WHITE LLC: Website not Accessible to Blind, Fischler Says PAY CAR: Court Certifies Class of Laid Off Employees in "Lester" PEOPLEREADY FLORIDA: "Scippio" Suit to Recover Unpaid Overtime PLAZA SERVICES: Williams Sues over Debt Collections Practices PNC BANK: Court Grants Bid to Dismiss "Pfendler" Suit PRECISION CASTPARTS: Class in "Murphy" Securities Suit Certified PROTHENA CORP: Teachers' Fund Sues Over Share Price Drop REPROMED: Gluckstein Lawyers Files Class Action Lawsuit REVOLUTION PREP: Fails to Pay All Wages, Staley Says S.J. DISTRIBUTERS: Gallardo Seeks Minimum and Overtime Wages SAN DIEGO HOUSE: Miliate Alleges Unlawful Sale of Motorcycles SEATTLE, WA: Jewish Cemetery Board Files $250K Claim for Damages SIBANYE GOLD: Pomerantz Law Files Class Action Lawsuit SOTHEBY'S INC: 9th Cir. Strikes Down California Royalties Law TACONIC PLASTICS: Judge Grants Class-Action Lawsuit TENNESSEE: Class Decertification Bid in "Wilson" Denied THAMES RIVER: Robert Reardon Wins Class Action Case TIGER NATURAL: Court Allows Amendment to "Fishman" Complaint TITLEMAX OF TENNESSEE: Can Compel Arbitration in "Curatola" Suit TOM'S SHOES LLC: "Mussleman" Disputes Overtime Pay Computation TRINITY LOGISTICS: Court Denies Bid to Dismiss FCRA Suit TROJAN HORSE: Settlement in "Longo" Suit Has Final Approval UNITED STATES: Certiorari Granted in Pregnant Minor's Suit UNITED STATES: Trump Seeks More Time to Reunify Migrant Families US BANK NA: Robinson Sues Over Excessive Bank Charges VECTREN CORP: Monteverde & Associates Files Class Action Lawsuit VILLAGE OF FOX LAKE: Filenko Dismissed from "Willoughby" Suit VIRTUAL BENCH: "Sonnier" Labor Suit to Recover Unpaid OT Wages WAL-MART STORES: Court Denies Certification of "Swank" AMs Class WAL-MART STORES: Court Narrows Claims in "Beckman" Suit WAL-MART TRANS: "Luna" Suit Moved to Western District of Arkansas WASHINGTON: Faces Suit Over In-Home Caregiver Ripoffs WELK GROUP: "Carreno" Sues Over Missed Breaks, Minimum Wages WINS FINANCE: Discovery Confidentiality Order in "Desta" Entered WYNN LAS VEGAS: Casino Dealers Sue Over Illegally-withheld Tips URBAN OUTFITTERS: Ct. Severs Plaintiffs From "McEarchen" Suit ZICAM LLC: Settlement in "Melgar" Suit Has Preliminary Approval ********* 7-ELEVEN INC: Nerestant Seeks Unpaid Wages under FLSA ----------------------------------------------------- GUITTO NERESTANT, and other similarly situated individuals, Plaintiff(s), v. 7-ELEVEN, INC., ASN FAITH CORP. and AMIR GEORGE, the Defendants, Case No. 1:18-cv-22810-JEM (S.D. Fla., July 13, 2018), alleges that the Defendants knew and/or showed reckless disregard for the provisions of the Fair Labor Standards Act concerning the payment of minimum wages and remain owing the Plaintiff and those similarly situated minimum wages since the commencement of Plaintiff's and those similarly situated employees' employment. The lawsuit contends that the Plaintiff and those similarly situated are entitled to recover double damages. The Defendants, according to the lawsuit, never posted any notice, as required by federal law, to inform employees of their federal rights to minimum wage payments. The Defendants willfully and intentionally refused to pay Plaintiff minimum wages as required by the laws of the United States and remain owing Plaintiff these minimum wages since the commencement of Plaintiff's employment with the Defendants. 7-Eleven is a Japanese-owned American international chain of convenience stores, headquartered in Irving, Texas. The chain was known as Tote's Stores until it was renamed in 1946.[BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503 5131 Facsimile: (888) 270 5549 E-mail: msaenz@saenzanderson.com ACUITY BRANDS: "Asanhussainsyedmohid" Suit Moved to N.D. Ga. ------------------------------------------------------------ The case captioned Jaheer Asanhussainsyedmohid, individually and on behalf of all others similarly situated, Plaintiff, v. Acuity Brands, Inc., Vernon J. Nagel and Richard K. Reece, Defendants, Case No. 18-cv-00012 (D. Del., January 3, 2018), was transferred to the United States District Court for the Northern District of Georgia on May 15, 2018, under Case No. 18-cv-02140. Plaintiff purchased Acuity securities that declined $12.01 per share, or over 4.7 percent, to close on October 5, 2016, at $242.99 per share, on unusually heavy trading volume. Asanhussainsyedmohid seeks to pursue remedies under the Securities Exchange Act of 1934 for the decline in the market value of the Company's securities. Acuity is a provider of lighting and building management solutions for commercial, institutional, industrial, infrastructure, and residential applications. [BN] Asanhussainsyedmohid is represented by: P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 N. Market Street, Suite 1401 Wilmington, DE 19801 Tel: (302) 656-4433 Acuity Brands is represented by: John P. DiTomo, Esq. MORRIS NICHOLS ARSHT & TUNNELL 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899 Tel: (302) 658-9200 Email: jditomo@mnat.com ACUITY BRANDS: "Gray" Suit Transferred to N.D. Ga. -------------------------------------------------- The case captioned Thaddeus A. Gray, individually and on behalf of all others similarly situated, Plaintiff, v. Acuity Brands, Inc., Vernon J. Nagel and Richard K. Reece, Defendants, Case No. 18-cv-00285 (D. Del., February 20, 2018), was transferred to the United States District Court for the Northern District of Georgia on May 15, 2018, under Case No. 18-cv-02141. Plaintiff purchased Acuity securities that declined $12.01 per share, or over 4.7 percent, to close on October 5, 2016, at $242.99 per share, on unusually heavy trading volume. Gray seeks to pursue remedies under the Securities Exchange Act of 1934 for the decline in the market value of the Company's securities. Acuity is a provider of lighting and building management solutions for commercial, institutional, industrial, infrastructure, and residential applications. [BN] Gray is represented by: P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 N. Market Street, Suite 1401 Wilmington, DE 19801 Tel: (302) 656-4433 Fax: (302) 658-7567 Acuity Brands is represented by: John P. DiTomo, Esq. MORRIS NICHOLS ARSHT & TUNNELL 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899 Tel: (302) 658-9200 Email: jditomo@mnat.com AKORN INC: Court Awards $6.7MM in Attys' Fees in Securities Suit ---------------------------------------------------------------- In the case, In re AKORN, INC. SECURITIES LITIGATION, Case No. 15 C 1944 (N.D. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) granted the Named Plaintiffs' motions for costs and incentive awards, and (ii) granted in part an denied in part their motion for attorney fees. The Named Plaintiffs bring the suit against Akorn and two of its officers, Rajat Rai and Timothy A. Dick, on behalf of themselves and a class of others who purchased Akorn stock between May 6, 2014 and April 24, 2015, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. sections 78j(b), 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5. After the Court denied the Defendants' Rule 12(b)(6) motion, the discovery commenced and, months later, the Named Plaintiffs moved for class certification. Shortly after the class certification motion was fully briefed, the parties agreed to settle the suit on a classwide basis for $24 million. The Court granted preliminary approval of the settlement and provisional certification of the settlement class. The Named Plaintiffs now move for final approval of the settlement, certification of the settlement class, attorney fees, costs, and incentive awards. The Court in an oral ruling granted final approval and class certification, but entered and continued the requests for attorney fees, costs, and incentive awards. The class counsel request a fee award of 33% of the $24 million settlement, which comes to $7,920,000. Judge Feinerman will apply the In re Synthroid Mktg. Litig. sliding scale and grant an attorney fee award of $6,290,838.23. The $1,629,161.77 difference between the requested fees and the awarded fees will be returned to the settlement fund, of which $17,303,881.17 is now earmarked for distribution to the class. The class counsel submit itemized lists of expenses for expert witnesses, document vendors, mediation, and travel, among other things. Together, those expenses total $375,280.60. The Judge finds those costs to be reasonable. He also notes that the costs come to 1.56% of the settlement amount, which is below median in comparable cases. The three Named Plaintiffs request incentive awards of $10,000 apiece. The Judge finds that the Named Plaintiffs spent time reviewing pleadings, responding to interrogatories, collecting documents responsive to discovery requests, and preparing and sitting for depositions. Given the substantial time spent on the litigation for the benefit of the class as a whole, the requested incentive awards of $10,000 per the Named Plaintiff are appropriate. For these reasons, Judge Feinerman (i) granted the motions for costs and incentive awards, and (ii) granted in part an denied in part the motion for attorney fees. He modified the terms of the settlement such that the $24 million common fund is distributed as follows: (1) the class member payments in the amount of $17,303,881.17; (2) attorney fees and costs in the amount of $6,666,118.83; (3) incentive awards to the three class representatives in the amount of $10,000 each ($30,000 total). A full-text copy of the Court's June 5, 2018 Memorandum Opinion and Order is available at https://is.gd/i1bpri from Leagle.com. Solomon Yeung, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice, Joshua B. Silverman -- jbsilverman@pomlaw.com -- Pomerantz LLP, Leigh Handelman Smollar -- lsmollar@pomlaw.com -- Pomerantz LLP, Louis Carey Ludwig -- lcludwig@pomlaw.com -- Pomerantz LLP, Patrick Vincent Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP & Sean Kennedy Collins, Law Offices of Sean K. Collins, pro hac vice. Mikolaj Sarzynski, J. Michael Cuniff, Jr. & Elizabeth Cuniff, Plaintiffs, represented by Casey E. Sadler -- csadler@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Joshua L. Crowell -- jcrowell@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Kevin Francis Ruf -- kruf@glancylaw.com -- Glancy Prongay & Murray LLP, Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Elizabeth Camper Lyons -- elyons@LKSU.com -- Lawrence, Kamin, Saunders, & Uhlenhop, Llc, John Scott Monical, Lawrence, Kamin, Saunders & Uhlenhop, Marielise Fraioli -- mfraioli@LKSU.com -- Lawrence Kamin Saunders & Uhlenhop, LLC, Mitchell Benjamin Goldberg -- mgoldberg@LKSU.com -- Lawrence, Kamin, Saunders & Uhlenhop, Peter E. Cooper -- pcooper@LKSU.com - - Lawrence, Kamin, Saunders & Uhlenhop & Sean Kennedy Collins, Law Offices of Sean K. Collins, pro hac vice. Akorn, Inc., Defendant, represented by Alexa Mullarky, Glancy Prongay & Murray LLP, pro hac vice, Antony L. Ryan -- aryan@cravath.com -- Cravath, Swaine and Moore LLP, pro hac vice, Daniel Slifkin, Cravath, Swaine & Moore, LLP, pro hac vice, David M. Stuart -- dstuart@cravath.com -- Cravath, Swaine & Moore Llp, pro hac vice, Devon McKechan Largio -- devon.largio@kirkland.com -- Kirkland & Ellis LLP & Michael B. Byars, Cravath, Swaine & Moore LLP, pro hac vice. Rajat Rai, Defendant, represented by Antony L. Ryan, Cravath, Swaine and Moore LLP, pro hac vice, Daniel Slifkin, Cravath, Swaine & Moore, LLP, pro hac vice, David M. Stuart, Cravath, Swaine & Moore Llp, pro hac vice, Devon McKechan Largio, Kirkland & Ellis LLP & Michael B. Byars, Cravath, Swaine & Moore LLP, pro hac vice. Timothy A. Dick, Defendant, represented by Thomas P. Cimino, Jr. -- tcimino@vedderprice.com -- Vedder Price P.C., Antony L. Ryan, Cravath, Swaine and Moore LLP, pro hac vice, Daniel Slifkin, Cravath, Swaine & Moore, LLP, pro hac vice, David M. Stuart, Cravath, Swaine & Moore Llp, pro hac vice, Devon McKechan Largio, Kirkland & Ellis LLP, Junaid A. Zubairi -- jzubairi@vedderprice.com -- Vedder Price P.C., Michael B. Byars, Cravath, Swaine & Moore LLP, pro hac vice, Rachel T. Copenhaver - - rcopenhaver@vedderprice.com -- Vedder Price P.C. & Rebecca Lynn Dandy -- rdandy@vedderprice.com -- Vedder Price P.C.. ALTICE USA: Faces "LaPoint" Class Action over 2017 IPO ------------------------------------------------------ Plaintiff Brian LaPoint brings a class action on behalf of all persons who purchased or otherwise acquired Altice USA common stock pursuant or traceable to the Registration Statement and Prospectus issued in connection with Altice USA's June 2017 initial public offering. His complaint, captioned as, BRIAN LAPOINT, Individually and on Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. ALTICE USA, INC., ALTICE EUROPE N.V. (f/k/a ALTICE N.V.), PATRICK DRAHI, JEREMIE JEAN BONNIN, ABDELHAKIM BOUBAZINE, MICHEL COMBES, DAVID P. CONNOLLY, DEXTER G. GOEI, VICTORIA M. MINK, MARK CHRISTOPHER MULLEN, DENNIS OKHUIJSEN, LISA ROSENBLUM, CHARLES F. STEWART, RAYMOND SVIDER, GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES LLC, MORGAN STANLEY & CO. LLC, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., BARCLAYS CAPITAL INC., BNP PARIBAS SECURITIES CORP., CREDIT AGRICOLE SECURITIES (USA) INC., DEUTSCHE BANK SECURITIES INC., RBC CAPITAL MARKETS, LLC, SCOTIA CAPITAL (USA) LLC, SG AMERICAS SECURITIES LLC, and TD SECURITIES (USA) LLC, the Defendants, Case No. 710845/2018 (N.Y. Sup. Ct., July 16, 2018), asserts strict- liability, non-fraud claims under sections 11, 12, and 15 of the Securities Act of 1933 against Altice USA, its former controlling parent Altice N.V., certain current and former officers and directors of Altice USA and the former Altice N.V., and the underwriters of the IPO. Altice USA is a broadband communications provider and, until approximately June 8, 2018, was the United States subsidiary of Altice N.V., a Netherlands-based multinational telecommunications company founded and controlled by Patrick Drahi. Altice USA and Altice N.V. were interdependent. They shared officers and directors. They jointly reported respective quarterly and yearly financial results. They jointly conducted earnings calls with analysts. Altice USA was majority-owned and controlled by Altice N.V. and Defendant Drahi; in turn, Altice N.V. was majority-owned and controlled by Defendant Drahi. Through related shell entities, Altice N.V. and Defendant Drahi owned 75.2% of Altice USA's issued and outstanding shares of common stock and held 98.5% of the voting power of Altice USA's outstanding capital stock. Indeed, Altice USA admitted its dependence on Altice N.V.; for example, claiming: "Our ability to attract and retain customers depends, in part, upon the external perceptions of Altice Group's reputation, the quality of its products and its corporate and management integrity." In June 2017, Defendants commenced the Altice USA IPO, issuing shares of Altice USA common stock to the investing public at $30 per share, all pursuant to a Registration Statement. The lawsuit contends that the Offering Documents contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading. With these misrepresentations and omissions in the Offering Documents, the IPO went forward and was extremely lucrative for Defendants, who raised over $2.15 billion in gross proceeds. But when the truth emerged, the price of Altice USA shares suffered sharp declines. By the commencement of this action, Altice USA shares traded below $18 per share, a roughly 40% decline from the $30 offering price. All told, investors suffered hundreds of millions of dollars in losses as a result.[BN] Attorneys for Plaintiff: Thomas L. Laughlin, IV, Esq. Rhiana L. Swartz, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 233 6444 Facsimile: (212) 233 6334 E-mail: tlaughlin@scott-scott.com rswartz@scott-scott.com - and - David W. Hall, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Telephone: (415) 766 3534 Facsimile: (415) 402 0058 E-mail: dhall@hedinhall.com - and - Kip B. Shuman, Esq. THE SHUMAN LAW FIRM 1 Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (303) 861 3003 Facsimile: (303) 536 7849 E-mail: kip@shumanlawfirm.com AMBROSINO CONSTRUCTION: Failed to Post Wage Notices, Says "Laso" ---------------------------------------------------------------- Jose Caguana Laso, individually and on behalf of all others similarly situated, Plaintiff, v. Ambrosino Construction Corp., and Antonio Ambrosino, Defendant, Case No. 707648/2018, (N.Y. Sup., May 17, 2018), seeks compensatory and liquidated damages, interest, attorney's fees, costs and all other legal and equitable remedies for violation of New York State labor laws. Laso worked for the Defendants' construction firm as a manual laborer. Ambrosino Construction failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment and failed to keep payroll records, notes the complaint. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@Gmail.com AMCOL SYSTEMS: Court Dismisses "Magana" FDCPA Suit -------------------------------------------------- Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey granted the Motion to Dismiss the case, Nicole MAGANA, Plaintiff, v. AMCOL SYSTEMS, INC., et al., Defendants, Civil No. 17-11541 (RBK/AMD) (D. N.J.). The matter arises out of a debt that the Plaintiff allegedly incurred on Dec. 6, 2016 to Atlanticare Regional Medical Center. This debt, totaling $360.23, was subsequently transferred to Defendant, a debt collection firm located in Columbia, South Carolina. On Dec. 6, 2016, the Defendant notified the Plaintiff of her outstanding financial obligation. The letter contained Defendant's name, address, and contact information, as well as the outstanding balance owed by the Plaintiff. Under the Defendant's contact information were three paragraphs of text. The Plaintiff contends that the text contained in the Defendant's letter violates two provisions of the FDCPA by: (a) using false, deceptive or misleading representations or means in connection with the collection of a debt in violation of 15 U.S.C. Section 1692(e)(10); and (b) failing to provide the consumer with a proper notice pursuant to 15 U.S.C. Section 1692(g)(a)(3). The Plaintiff argues that the collection letter does not make it explicitly clear that a complaint or dispute over the bill must be done in writing, and that as such, the letter violates sections 1692(g)(a)(3) and 1692(e)(10). She brought the action against the Defendant as a state-wide class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of herself and all other New Jersey consumers who were sent similar debt collection letters from the Defendant. Judge Kugler is not convinced by the Plaintiff's arguments that the language in the first paragraph of the collection letter overshadows or contradicts the language in the second paragraph to the extent that the least sophisticated debtor would be confused about her rights. The paragraph is not perfectly clear about what someone needs to do as a matter of logical necessity to dispute a claim, as each "in writing" clause sets forth merely a sufficient, rather than a necessary, condition. However, the overall message is still apparent, and the paragraph successfully conveys the writing requirement, even from the perspective of the least sophisticated debtor. He finds that the Defendant's collection letter sufficiently meets the Third Circuit's requirement that the Defendant inform the Plaintiff of the writing requirement for disputes, and that the language contained in the remainder of the letter neither overshadowed nor contradicted the writing requirement. Accordingly, the Plaintiff has failed to state a claim upon which relief can be granted under Section 1692(g)(a)(3). Because the Plaintiff cannot prevail on her claim under Section 1692(g)(a)(3), the Plaintiff likewise cannot succeed under Section 1692e)(10). The Plaintiff has failed to argue any additional grounds with respect to its Section 1692(e)(10) claim, and the disputed language is neither false nor deceptive. As such, the Judge finds that the Plaintiff has failed to state a claim upon which relief can be granted. Because the Plaintiff has failed to state a claim upon which relief can be granted, the Judge needs not address the merits of the Plaintiff's Rule 23 arguments. For the reasons he stated, Judge Kugler granted the Defendant's Motion to Dismiss Plaintiff's FDCPA claim. An appropriate order will issue. A full-text copy of the Court's June 6, 2018 Opinion is available at https://is.gd/y0hvb9 from Leagle.com. NICOLE MAGANA, on behalf of herself and all others similarly situated, Plaintiff, represented by BENJAMIN JARRET WOLF -- bwolf@legaljones.com -- Jones, Wolf & Kapasi, LLC & JOSEPH K. JONES -- jkj@legaljones.com -- Jones, Wolf & Kapasi, LLC. AMCOL SYSTEMS, INC., Defendant, represented by PETER THOMAS SHAPIRO -- pshapiro@lbbslaw.com -- LEWIS, BRISBOIS, BISGAARD & SMITH, LLP. AMERICAN HONDA: "Williams" Fair Market Value Questions Certified ---------------------------------------------------------------- Judge Scott L. Kafker of the Supreme Judicial Court of Massachusetts, Suffolk, has certified three questions in the case, RACHEL C. WILLIAMS v. AMERICAN HONDA FINANCE CORPORATION, Case No. SJC-12367 (Mass.). The primary issue presented in the case is how to establish the fair market value of a repossessed automobile pursuant to G. L. c. 255B, Section 20B. Under Section 20B, a creditor who repossesses and sells a vehicle is entitled to recover from the debtor the deficiency, if any, that remains after deducting the "fair market value" of the vehicle from the debtor's unpaid balance. The Plaintiff in the case, Williams, defaulted on her automobile loan, causing the Defendant to repossess and sell the vehicle that served as collateral for the loan. The price for the repossessed vehicle was determined at an auction open to licensed dealers. Honda then used that amount to establish the fair market value of the repossessed automobile and likewise referenced the auction sale amount in pre-sale and post-sale notices to the debtor. Williams then sued Honda, alleging that the fair market value of her repossessed automobile was the fair market retail value of the automobile and Honda's notices to her were insufficient under Massachusetts law because of the manner in which Honda described and calculated her deficiency. The U.S. District Court for the District of Massachusetts granted summary judgment to Honda, and the Plaintiff appealed. Unsure of the meaning of the statute, the U.S. Court of Appeals for the First Circuit certified to the Court three questions related to the calculation of "fair market value" under Section 20B, and the notices that are required with respect to this calculation. The court first asks whether the fair market value of the collateral under Section 20B is the fair market retail value of the collateral. The second and third questions then relate to the contents of the pre-sale and post-sale notices that must be sent to the debtors. Specifically, these questions ask: 2. Whether, and in what circumstances, a pre-sale notice is 'sufficient' under the Uniform Commercial Code, G. L. c. 106, Section 9-614 (4) and (5), and 'reasonable' under the Uniform Commercial Code, G. L. c. 106, Section 9-611 (b), where the notice does not describe the consumer's deficiency liability as the difference between what the consumer owes and the 'fair market value' of the collateral, and the transaction is governed by G. L. c. 255B? 3. Whether, and in what circumstances, a post-sale deficiency explanation is 'sufficient' under the Uniform Commercial Code, G. L. c. 106, Section 9-616, where the deficiency is not calculated based on the 'fair market value' of the collateral, and the transaction is governed by G. L. c. 255B? Judge Kafker concludes that the Legislature required that deficiency calculations for repossessed vehicles be determined based on the fair market value of the vehicle, but did not dictate the creditor's market choice in the first instance and left the ultimate determination of fair market value to the courts in contested cases, taking into account both creditor and debtor interests, and the means, methods, and markets used to sell the vehicle. He says the estimated retail value as provided in periodically published trade journals has a very limited role in the statute, essentially establishing a rebuttable evidentiary presumption that allows a debtor to put the fair market value as originally determined by the creditor to the test in contested cases. The approach to determining fair market value and deficiencies that the Court delineates respects the plain language of the statute, the legislative history, and the practical realities of the automobile repossession market. Had the Legislature intended to impose a fair market retail value standard, it would have simply said so in the statute or the legislative history, and it did not. Finally, in response to the second and third questions, concerning the notice that is required, he answers that the pre- sale and post-sale notices provided to the debtor must expressly describe the deficiency as the difference between the amount owed on the loan and the fair market value of the vehicle, not the difference between the amount owed and the sale proceeds or the amount owed and the fair market retail value of the vehicle. Judge Kafker directed the Reporter of Decisions to furnish attested copies of the Opinion to the clerk of the Court. The Clerk in turn will transmit one copy, under the seal of the Court, to the clerk of the U.S. Court of Appeals for the First Circuit, as the answers to the questions certified, and will also transmit a copy to each party. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/yXpKG7 from Leagle.com. John J. Roddy -- jroddy@baileyglasser.com -- (Elizabeth A. Ryan - - eryan@baileyglasser.com -- also present) for the plaintiff. Eric S. Mattson -- EMATTSON@SIDLEY.COM -- of Illinois (Tracy McDevitt Waugh -- tracy.waugh@wilsonelser.com -- also present) for the defendant. Fredrick S. Levin -- flevin@buckleysandler.com -- John C. Redding -- jredding@buckleysandler.com -- & Ali M. Abugheida -- aabugheida@buckleysandler.com -- for American Financial Services Association, amicus curiae, submitted a brief. Stuart T. Rossman, for National Consumer Law Center, amicus curiae, submitted a brief. ANALOGIC CORP: "Rosenblatt" Suit Seeks to Halt Sale to Altaris -------------------------------------------------------------- Jordan Rosenblatt, individually and on behalf of all others similarly situated, Plaintiff, v. Analogic Corporation, Bernard Bailey, Jeffrey P. Black, James J. Judge, Michael T. Modic, Stephen A. Odland, Fred B. Parks and Joseph E. Whitters, Defendants, Case No. 18-cv-10988, (D. Mass., May 16, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Analogic Corporation by affiliates of Altaris Capital Partners, LLC, rescinding it in the event defendants consummate the merger. The Plaintiff further seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Pursuant to the terms of the Merger Agreement, shareholders of Analogic will receive $84.00 in cash for each share of Analogic common stock. Analogic provides healthcare and security technology solutions for advanced imaging and real-time guidance technologies used for disease diagnosis and treatment as well as for automated threat detection. According to the complaint, the proxy statement omitted financial projections and analyses performed by the company's financial advisors, Citigroup Global Markets Inc. and failed to disclose earnings, interest, taxes, and depreciation and amortization, discretionary cash flow and free cash flow. Said disclosures provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses, notes the complaint. Rosenblatt is a shareholder of Analogic. [BN] Plaintiff is represented by: Mitchell J. Matorin, Esq. MATORIN LAWOFFICE, LLC 18 Grove Street, Suite 5 Wellesley, MA 02482 Tel: (781) 453-0100 Email: mmatorin@matorinlaw.com - and - RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Tel: (302) 295-5310 - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Tel: (484) 324-6800 APPLIED BUILDING: Rhoden Seeks Unpaid OT Wages under FLSA --------------------------------------------------------- RICHARD RHODEN, on behalf of himself and on behalf of others similarly situated individuals, the Plaintiffs, v. APPLIED BUILDING DEVELOPMENT COMPANY - OAKHILLS, INC., a Florida profit corporation, the Defendant, Case No. 8:18-cv-01698-MSS-AAS (M.D. Fla., July 13, 2018), seeks to recover unpaid overtime wages for every hour worked, pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff was employed as a mechanic from February 2016 through January, 2018, and performed related activities for Defendant in Polk County, Florida. As a mechanic, Plaintiff was not exempt from the overtime requirement of the FLSA. However, Defendant paid Plaintiff a fixed salary irrespective of the number of hours Plaintiff actually worked. Because Defendant did not pay Plaintiff overtime wages for those hours worked in excess of 40 within a work week. The Defendant operates multiple golf clubs.[BN] Attorney for Plaintiff: Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, No. 600 Tampa, FL 33602 Telephone: (813) 223 5505 Facsimile: (813) 257 0572 E-mail: Medelman@forthepeople.com AUSTIN INDUSTRIAL: "Hefner" Sues Over Unpaid Overtime ----------------------------------------------------- Charles Hefner, individually and on behalf of all similarly situated persons, Plaintiff, v. Austin Industrial, Inc., Defendant, Case No. 18-cv-01576 (S.D. Tex., May 15, 2018), seeks to recover unpaid overtime compensation, liquidated damages, and attorney's fees owed pursuant to the Fair Labor Standards Act of 1938. Hefner worked for Defendant as a pipe fabricator from October of 2015 until December of 2017. During his tenure, Hefner regularly worked in excess of 40 hours per week but was not paid an overtime premium, asserts the complaint. [BN] Plaintiff is represented by: Josef F. Buenker, Esq. Vijay A. Pattisapu, Esq. THE BUENKER LAW FIRM 2030 North Loop West, Suite 120 Houston, TX 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 Email: jbuenker@buenkerlaw.com vijay@buenkerlaw.com BANCO BILBAO: MGB Bond Buyer Files Suit Over Bond Price-fixing -------------------------------------------------------------- United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund, Individually and on behalf of all others similarly situated, Plaintiff, V. Banco Bilbao Vizcaya Argentaria S.A., Banco Santander S.A., Bank of America Corp., Barclays PLC, Citigroup Inc., Credit Suisse AG, Deutsche Bank AG, HSBC Holdings PLC, and JPMorgan Chase & Co., Case No. 18-cv-04402 (S.D. N.Y., May 17, 2018), seeks to permanently enjoin and restrain Defendants from continuing and maintaining the conspiracy under Section 16 of the Clayton Antitrust Act, damages for violation of federal antitrust laws, disgorgement of ill-gotten gains from which a constructive trust be established for restitution to Plaintiffs, awards of costs of suit, including reasonable attorneys' fees and expenses, including expert fees, prejudgment interest and such further relief for violation of the Sherman Act. Defendant banks and/or their subsidiaries or affiliated companies are horizontal competitors at auctions for Mexican Government Bonds (MGB) who participate actively in the fixed-rate MGB market and bid and offer prices for MGBs in the secondary market for the purpose of providing liquidity and facilitating investment in the overall MGB market. In April 2017, Mexico's antitrust regulator, the Comision Federal de Competencia Economica uncovered evidence of anticompetitive conduct in the MGB market extending back to 2006. Defendants allegedly conspired to fix MGB prices between January 1, 2006 and April 18, 2017 through rigging MGB auctions through collusive bidding and information sharing, selling MGBs purchased at auction at artificially higher prices and agreeing to fix the "bid-ask spread" artificially wider, overcharging and underpaying customers in every MGB transaction by suppressing the "bid price" at which Defendants offered to buy MGBs and increasing the "ask price" at which they offered to sell. This comprehensive scheme resulted in inflated MGB prices, and lower yield for Plaintiffs, says the compalint. Plaintiffs are domestic purchasers of Mexican government bond and Defendants' customers in the United States. They were allegedly overcharged and/or were underpaid in each of these transactions as a direct result of a conspiracy to fix Mexican government bond prices in the United States, the complaint asserts. [BN] Plaintiff is represented by: Christopher M. Burke, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: 619-233-4565 Facsimile: 619-233-0508 Email: cburke@scott-scott.com - and - Thomas K. Boardman, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 230 Park Avenue, 17th Floor New York, NY 10169 Telephone: (212) 519-0523 Fax: (212) 223-6334 Email: tboardman@scott-scott.com - and - John Radice, Esq. Daniel Rubenstein, Esq. RADICE LAW FIRM, P.C. 34 Sunset Blvd. Long Beach, NJ 08008 Telephone: (646) 245-8502 Facsimile: (609) 385-0745 Email: jradice@radicelawfirm.com drubenstein@radicelawfirm.com - and - Eric. L. Young, Esq. SHEPHERD FINKELMAN MILLER & SHAH, LLP 35 East State Street Media, PA 19063 Telephone: (610) 891-9880 Facsimile: (866) 300-7367 BAY AREA REGIONAL: Ex-employees Seek Final Pay, Benefits -------------------------------------------------------- Michael Aguilar, Amy Allen, Aimee Alvarez, Jean Amador, Tenisha Brackens, Cheryl Browning-Vidrio, Janice Caballero, Maria Del Carmen Cervera Rios, Blanca Chapa, Elena Cleveland, John Coles, Casey Cunningham, Roy Dalmacio, Tisha Eaglebarger, Bernadette Egbufor, Denise Fredericksen, Whitney Goodbread, Terri Griffice, Deanna Howard, Maria Johnson, Linda Jones, Taylor Jones, Viola Knoxson, Adam Landry, Mary Laneharl, Amber Leal, Janet Londono, Blessed Makamba, Ariana Maniscalco, Xuan-Tran Nguyen Mccain, Paul McCullough, Rebecca Meehaw, Shannon Mikel, James Murengi, My Nguyen, James O'Donnell, Wade Peirsol, Elizabeth Pollock, Barbara De'ann Pulido, Mary-Eva Reyes, Sharella Shepard, Erik Sillen, Shannan Sillen, Patrick Skowron, Brandy Ship, Lane Stephenson, Emmanuel Tabe, Donald Taylor, Tiffany Thalheimer, La'toya Thompson, Sheila Timmons, Jerrolyn Travers, Maria Fe Valencia, Rudell Vanarsdale, Edelmire Vargas, Cynthia Villareal, Carol Vogl, Ruth Weseman, Mary Wheeler-Walker and all others similarly situated, individually and on behalf of all others similarly situated, Plaintiff, v. Bay Area Regional Medical Center, LLC, Medistar SLN GP, LLC and Monzer Hourani, Defendant, Case No. 18- cv-01577, (S.D. Tex., May 15, 2018), seeks unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay, pension and 401(k) contributions and other benefits, for 60 days, including medical expenses that would have been covered and paid under the then-applicable employee benefit plans had that coverage continued for that period. The lawsuit also seeks reasonable attorneys' fees, expenses, and costs and such other and further relief under the under the Worker Adjustment and Retraining Notification Act. Bay Area Regional Medical Center, LLC and Medistar SLN GP, LLC operated the Bay Area Regional Medical Center in Webster Texas. Plaintiffs were previously employed in Defendants' facility located at 200 Blossom St, Webster, TX 77598 and were terminated on or about May 4, 2018. Upon closure, Plaintiffs were informed that Defendants had not paid their insurance premiums although the premium amounts had been deducted from Plaintiff's paychecks. Defendants did not compensate Plaintiff for their accumulated paid off, says the complaint. [BN] Plaintiff is represented by: Jonathan A. Zendeh Del, Esq. Gabe Perez, Esq. ZENDEH DEL & ASSOCIATES, PLLC 1813 61st Street, Suite 101 Galveston, TX 77511 Tel: (409) 740-1111 Fax: (409) 515-5007 Email: jonathan@zendehdel.com gabe@zendehdel.com BEHR PROCESS: Court Stays "Domson" Suit --------------------------------------- The United States District Court for the Western District of Washington, Seattle, granted Parties' Request for an Order Staying the case captioned ROBERT DOMSON, individually and on behalf of all others similarly situated, Plaintiffs, v. BEHR PROCESS CORP., BEHR PAINT CORP., MASCO CORP., THE HOME DEPOT, INC., and HOME DEPOT U.S.A., INC., Defendants, No. 3:17-cv-06060- MJP (W.D. Wash.), pending a decision on the motion for preliminary and final approval of a class action settlement in Bishop, et al., v. Behr Process Corporation, et al., Case No. 1:17-cv-04464 (N.D. Ill.). A full-text copy of the District Court's June 4, 2018 Order is available at https://tinyurl.com/ybhl5byh from Leagle.com. Robert Domson, individually and on behalf of all others similarly situated,, Plaintiff, represented by Timothy S. DeJong -- tdejong@stollberne.com -- STOLL STOLL BERNE LOKTING & SHLACHETER PC & Elijah T. Marchbanks -- emarchbanks@navigatelawgroup.com -- NAVIGATE LAW GROUP. Behr Process Corp., Behr Paint Corp. & Masco Corp., Defendants, represented by Elliot C. Copenhaver -- copenhaver@carneylaw.com - - CARNEY BADLEY SPELLMAN, Jason M. Kettrick -- kettrick@carneylaw.com -- CARNEY BADLEY SPELLMAN, Emilia L. Sweeney -- Sweeney@carneylaw.com -- CARNEY BADLEY SPELLMAN & Kathleen P. Lally -- kathleen.lally@lw.com -- LATHAM & WATKINS, pro hac vice. The Home Depot, Inc. & Home Depot USA, Inc, Defendants, represented by Caryn Geraghty Jorgensen -- cjorgensen@millsmeyers.com -- MILLS MEYERS SWARTLING, Jeffrey Douglass -- jdouglass@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice & Robert Alpert -- ralpert@mmmlaw.com -- MORRIS MANNING & MARTIN, pro hac vice. BENJAMIN MOORE: Court Denies Bid to Dismiss "Poole" Suit -------------------------------------------------------- Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington, Tacoma, denied the Defendant's Motion to Dismiss the case, WHITNEY POOLE, et al., Plaintiffs, v. BENJAMIN MOORE & CO., INC, Defendant, Case No. C18-5168 RBL (W.D. Wash.). Poole claims Benjamin Moore misrepresented the environmentally friendly or "green" features of its "Natura" paint, promising (in advertising and on the can itself) that it was "emission free" and contained "Zero V.O.C.s." The FTC investigated and in a 2017 draft complaint concluded that those claims were not true. Benjamin Moore has since voluntarily (but perhaps temporarily, depending on the final outcome of the FTC investigation) changed its advertising. Poole paid a premium for Natura over other Benjamin Moore paints. She asserts on her own behalf and as the representative of a putative class claims for breach of express warranty, violations of the Magnuson Moss Warranty Act, violations of multiple states' Consumer Protection Acts, and unjust enrichment. She seeks damages resulting from the misrepresentations. Benjamin Moore moves to dismiss. It argues that Poole has not alleged that she saw or was aware of its "green promise" before she purchased, or that she relied on any representations in purchasing; it speculates that her attorneys told her about the statements after she purchased. It claims that these failures are "fatal" to her Washington (UCC) and Magnuson Moss warranty claims. The Defendant also argues these claims fail as a matter of law because Poole cannot establish privity of contract with Benjamin Moore; she (like any consumer) purchased through an independent dealer. And it claims her "inability" to allege she even saw the representations at issue, or that they influenced her purchase decision, is fatal to her CPA claims. Finally, Benjamin Moore argues that because Poole has pled (defectively, it claims) a breach of contract claim, she cannot maintain a quasi-contractual unjust enrichment claim. Judge Leighton finds that though she does not need to, Poole clearly could amend her complaint to remedy the "defect" upon which Benjamin Moore relies. The claimed defect, then, would lead to not dismissal, but to amendment. This is an evidentiary challenge, not a pleading one. The motion to dismiss Poole's warranty claims for lack of awareness of the warranty will be denied. Benjamin Moore asks the Court to Dismiss Poole's Magnuson Moss Warranty Act claim, arguing that it depends on the viability of her state law UCC warranty claims. It also argues that the MMWA claim fails as a matter of law because there are fewer than 100 named Plaintiffs. The Judge finds that the former claim fails because Poole's state law warranty claims are not subject to dismissal. Where the case is properly here under CAFA, the lack of 100 named Plaintiffs is not a basis for dismissal. Hence, Benjamin Moore's Motion to Dismiss Poole's UCC and MMWA breach of warranty claims will be denied. Because Poole has plausibly plead causation for purposes of her Washington CPA claim, Benjamin Moore's Motion to dismiss that claim will also be denied. Its related motion to dismiss the multiple states CPA claims for lack of standing; Poole is not a member of the out of state class she seeks to represent. The Judge finds that while it is true that that there is no "per se rule" that certification must be considered before standing, there is no profit in dismissing this claim at this stage. Benjamin Moore's Motion to Dismiss Poole's multi-state CPA claims will be denied. Finally, because Benjamin Moore claims there is no privity of contract and Poole cannot enforce any "Green Promise" or express warranty against it, its Motion to Dismiss Poole's alternative unjust enrichment claim will be denied without prejudice. For these reasons, Judge Leighton denied Benjamin Moore's Motion to Dismiss. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/ZG4hfE from Leagle.com. Whitney Poole, individually and on behalf of all others similarly situated, Plaintiff, represented by Brendan Winslow-Nason -- bwinslow-nason@gordontilden.com -- GORDON TILDEN THOMAS & CORDELL LLP, Jeffrey M. Thomas -- jthomas@gordontilden.com -- GORDON TILDEN THOMAS & CORDELL LLP, Mark A. Wilner -- mwilner@gordontilden.com -- GORDON TILDEN THOMAS & CORDELL LLP, Daniel Robert Johnson, WASKOWSKI JOHNSON YAHALEM LLP, pro hac vice & Gary Michael Klinger -- gklinger@kozonislaw.com -- KOZONIS LAW, LTD., pro hac vice. Benjamin Moore & Co., Inc, a New Jersey corporation, Defendant, represented by Diane J. Kero -- dkero@gth-law.com -- GORDON THOMAS HONEYWELL, David Jay -- JayD@gtlaw.com -- GREENBERG TRAURIG LLP, pro hac vice, Eric S. Aronson -- AronsonE@gtlaw.com -- GREENBERG TRAURIG LLP, pro hac vice, Michael Edward Ricketts - - mricketts@gth-law.com -- GORDON THOMAS HONEYWELL, Paige Nestel -- NestelP@gtlaw.com -- GREENBERG TRAURIG LLP, pro hac vice & Todd Schleifstein -- SchleifsteinT@gtlaw.com -- GREENBERG TRAURIG LLP, pro hac vice. BIG 5: Sandoval Seeks Unpaid Wages under Labor Code --------------------------------------------------- RICARDO SANDOVAL, on behalf of himself, all others similarly situated, the Plaintiff, v. BIG 5 SPORTING GOODS CORPORATION, a Delaware corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. 18CV331393 (Cal. Super. Ct., July 13, 2018), alleges that Defendants failed to provide meal periods, provide rest periods, pay hourly wages, and to timely pay all final wages pursuant to the California Labor Code. According to the complaint, Defendants' policy of artificially splitting the shifts resulted in them not paying any minimum wage and/or overtime to Plaintiff and the putative class. The Plaintiff and the putative class were not paid any minimum wage and/or overtime by Defendants when working artificial split shifts based on Defendants' defective piece rate policy. Big 5 Sporting Goods is a sporting goods retailer headquartered in El Segundo, California with 420 stores in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Texas, Utah, Washington and Wyoming.[BN] The Plaintiff is represented by: Shaun Setareh, Esq. SETAREH LAW GROUP 8665 Wilshire Blvd., Suite 208 Beverly Hills, Ca 90211 Telephone: (310) 659 1826 Facsimile: (310) 300 1826 E-mail: daniel@setarehfirm.com BITCONNECT: Youtube Added Defendant in Class Action --------------------------------------------------- Ana Alexandre, writing for Coin Telegraph, reports that according to court documents filed July 3, YouTube has been added as a defendant in a class action lawsuit against BitConnect. The lawsuit was initially filed on January, 24 by six individuals represent by law firm Silver Miller. The claimants state that crypto investment platform BitConnect issued crypto tokens that were unregistered securities, and obtained additional funds through a "wide-ranging Ponzi scheme." The plaintiffs stated that their personal losses totalled $771,000. BitConnect allegedly used the funds received from new investors to meet the expectations of the existing ones. Per court documents acquired by Cointelegraph, BitConnect and its affiliated parties posted a number of promotional videos on YouTube, which were deemed inappropriate as the material allegedly lured potential investors to a fraudulent investment scheme. YouTube is said to have failed to delist and demonetize the published videos, which exposed "countless" YouTube users to injurious videos and illegally-promoted investments. The top ten BitConnect affiliates on YouTube reportedly posted more than 70,000 hours of unedited content, which generated 58,000,000 views. The document says that the number of views of several of the affiliate promoters' videos greatly exceeded the threshold numbers for the "enhanced" eligibility standards. Notably, a fair number of users notified YouTube of fraudulent activity by BitConnect, posting videos with titles such as "How bitconnect scam works in great detail," "Craig Grant Explains the Bitconnect scam," and others. In an email to Cointelegraph, David Silver, Esq. -- DSilver@SilverMillerLaw.com -- of Silver Miller said: "This case is not about YouTube being the speaker or publisher of the content on its website. Instead, liability is predicated on YouTube's failure to act after learning from content directly published on YouTube of the readily foreseeable harm posed by its advertising partners... As the old saying goes: Sometimes when you lie down with dogs, you get fleas." The claimants state that if YouTube had conducted an appropriate search of its databases, it would have delisted the harmful BitConnect videos. Instead, YouTube allegedly accepted a growing number of BitConnect-related videos, which resulted in numerous victims, including many members of the Class. The document also refers to Google LLC, which changed its financial products policy to ban all cryptocurrency-related ads and associated content due to a potential harm to users of Google-owned platforms, including YouTube. The document concludes: "YouTube failed as a gatekeeper to protect its users from, and warn its users of, the very harm YouTube set out to prevent with its advertising protocols and proprietary algorithms."[GN] BNY MELLON: Barrack, Rodos Disclosed Proposed Settlement -------------------------------------------------------- The following statement is being issued by Barrack, Rodos & Bacine regarding the Becker v. BNY Mellon Trust Litigation. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA LEONARD BECKER, on behalf of himself and all those similarly situated, Plaintiff, v. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, Defendants. CIVIL ACTION NO. 11-cv-6460 (JRS) (consolidated with C.A. No. 12-cv-6412 (JRS)). SUMMARY NOTICE OF (I) PROPOSED SETTLEMENT OF CLASS ACTION; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE BONDS IDENTIFIED AS THE BOROUGH OF LANGHORNE MANOR HIGHER EDUCATION AND HEALTH AUTHORITY HOSPITAL REVENUE BONDS, SERIES OF 1992 (THE LOWER BUCKS HOSPITAL), AND WHO ARE HOLDERS OF AN ALLOWED CLASS A3 CLAIM PURSUANT TO SECTION 5.1.3(A)(ii) OF THE PLAN FOR REORGANIZATION OF LOWER BUCKS HOSPITAL, WHICH PLAN WAS CONFIRMED UNDER CHAPTER 11 OF THE BANKRUPTCY CODE. EXCLUDED FROM THE CLASS ARE DEFENDANTS AND ANY PERSON, FIRM, TRUST, CORPORATION, OR OTHER ENTITY AFFILIATED WITH ANY DEFENDANT AND ANY OFFICERS AND DIRECTORS THEREOF. THE RECORD DATE FOR HOLDERS OF AN ALLOWED CLASS A3 CLAIM IS DECEMBER 7, 2011. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS WILL BE AFFECTED BY THIS LITIGATION. YOU ARE HEREBY NOTIFIED that the class representative, Leonard Becker ("Plaintiff") in the above-captioned litigation ("Action"), on behalf of himself and the Class, has reached a proposed settlement of the Action with The Bank of New York Mellon Trust Company, N.A. ("BNY Mellon") and J.P. Morgan Trust Company National Association ("J.P. Morgan") (together, the "Defendants") for $13,500,000 in cash that, if approved, will resolve all claims in the Action (the "Settlement"). A hearing will be held on September 20, 2018 at 9:00 a.m., before the Honorable Juan R. Sanchez at the United States District Court for the Eastern District of Pennsylvania, James A. Byrne U.S. Courthouse, Courtroom 11-A, 601 Market Street, Philadelphia, PA 19106, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated June 8, 2018 should be granted; and (iii) whether Class Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain a copy on Class Counsel's website, www.barrack.com, or by contacting: Contact: Becker v. Bank of New York Mellon Litigation c/o Heffler Claims Group 1515 Market Street, Suite 1700 Philadelphia, PA 19102 Telephone: (855) 711-8800 If you are a member of the Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than November 1, 2018. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. Any objections to the proposed Settlement or to Class Counsel's petition for attorneys' fees and reimbursement of expenses must be filed with the Court and delivered to Class Counsel and Defendants' Counsel such that they are received no later than August 18, 2018, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, BNY Mellon, J.P. Morgan or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Class Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Class Counsel: Contact: Lisa M. Port,Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19013 Telephone: (215) 963-0600 Email: lport@barrack.com [GN] BOLLA OPERATING: Benitez Seeks Unpaid Wages under Labor Law ----------------------------------------------------------- WALTER HERNANDEZ BENITEZ, on behalf of himself and all others similarly situated, the Plaintiff, v. BOLLA OPERATING LI CORP. d/b/a BOLLA MARKET, and BOLLA OPERATING CORP., d/b/a BOLLA MARKET, the Defendant, Case No. 605760/2018 (N.Y. Sup. Ct., July 16, 2018), seeks to recover unpaid spread-of-hours pay and other damages on behalf of all of Defendants' current and former Deli Workers and Clerks, based on Bolla Market's violation of the New York Labor Law. According to the complaint, Bolla Market prepares and serves meals and beverages for its customers' consumption. Bolla Employees prepare, package, transport, stock, and accept payment for these customers' food and drink. Bolla Employees regularly work shifts with a "spread" of over 10 hours. That is, the end of the employee's shift is over 10 hours from its start. Despite this, Bolla Market fails to pays Bolla Employees spread-of-hours pay - an additional hour of pay at the basic minimum wage -- as required by the Hospitality Industry Wage Order.[BN] Attorneys for Plaintiffs and Putative Class: Troy L. Kessler, Esq. Garrett Kaske, Esq. SHULMAN KESSLER LLP 534 Broadhollow Road, Suite 275 Melville, NY 11747 Telephone: (631) 499 9100 BONHAMS & BUTTERFIELDS: Wu Sues Over Blind-Inaccessible Website --------------------------------------------------------------- Kathy Wu and on behalf of all other persons similarly situated, Plaintiffs, v. Bonhams & Butterfields Auctioneers Corporation, Defendant, Case No. 18-cv-04344 (S.D. N.Y., May 15, 2018), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Defendant operates Bonhams auction house as well as the Bonhams auction house website www.bonhams.com. It provides auction house locations and hours, information about the goods being auctioned, appraisal services, bidding, auction terms and conditions and other goods and services. Plaintiff is legally blind and claims that Defendant's website cannot be accessed by the visually- impaired. [BN] Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com danalgottlieb@aol.com CALIFORNIA: Suit Challenging IDEA Moved to N.D. Calif. ------------------------------------------------------ Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California transferred the case, MORGAN HILL CONCERNED PARENTS ASSOC., CONCERNED PARENTS ASSOC., Plaintiffs, v. CALIFORNIA DEPARTMENT OF EDUCATION, Defendant, Case No. 2:11- cv-3471 KJM AC (E.D. Cal.), to the U.S. District Court for the Northern District of California. The Plaintiffs are associations of parents of children with disabilities attending elementary, middle and high schools throughout California. They allege Defendant California Department of Education ("CDE") is violating its obligations under the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act to ensure that all children with disabilities in California receive a "free appropriate public education," otherwise known as FAPE. Specifically, they allege that CDE is inadequately monitoring, investigating and enforcing the provision of FAPE in school districts statewide. They seek declaratory and injunctive relief requiring CDE to adopt and implement "a statewide monitoring, investigative and enforcement model that verifiably measures and ensures the provision of FAPE. As the Court learned in late 2017, under Judge Chhabria's supervision in the Northern District of California, CDE is currently implementing a consent decree governing its IDEA monitoring obligations. The Emma C. v. Torlakson, Case No. 3:96- cv-4179-VC (N.D. Cal.), certified class includes all past, present and future children with disabilities who reside in the Ravenswood City School District. Ravenswood comprises kindergarten through eighth grade (K-8) schools. Though the Emma C. consent decree obligation technically is limited to Ravenswood, CDE has chosen to turn its state-level obligation under the Consent Decree to monitor Ravenswood into an obligation to monitor school districts statewide. Accordingly, the Emma C. court has rejected CDE's attempts to limit the scope of the Court's examination to the district-level system. On Nov. 21, 2017, the Court issued an order to show cause why the action should not be stayed pending completion of the remedial proceedings in Emma C. or, in the alternative, why it should not be transferred to the Northern District. CDE urged the Court to issue a stay, but opposed transfer. The Plaintiffs opposed a stay and generally opposed transfer, but noted that emerging facts may establish transfer best advances the overarching goal of judicial efficiency and, therefore, the interests of justice. After reviewing the parties' responses, the Court stayed discovery on CDE's monitoring obligations at K-8 schools pending a March 26, 2018 status conference in Emma C. that might provide clarity on the intersection between these two cases. At the Emma C. status conference, as Judge Chhabria confirmed in a subsequent order, CDE stated it will not differentiate between its monitoring of Ravenswood and monitoring of other districts, nor will it devise a separate monitoring system for Ravenswood. Moreover, CDE's obligations under federal law mirror its obligations under the consent decree. Further, the Emma C. court ultimately will determine whether CDE's statewide monitoring system complies with federal law, not merely whether CDE adequately monitors Ravenswood. On April 19, 2018, the Court held a status conference to discuss Emma C. and revisit the propriety of a partial stay. Arguing the resolution of Emma C. will moot some or all of this case, CDE urged the Court to stay the case in its entirety until the conclusion of the evidentiary hearings in Emma C. or at least until the Emma C. court issues further orders on the timeline and substance of its compliance hearings. The Plaintiffs continued to oppose a stay, arguing the overlap between these cases remains unclear and contending they're entitled to discovery that may not be available in Emma C. Unable to determine when Emma C.'s remedial proceedings will conclude and unwilling to relieve CDE of its burden to demonstrate a stay is warranted, the court declined sua sponte to issue a further stay. The stay automatically expired the next day. Judge Mueller finds that although they decline to address the issue, the Plaintiffs could have properly brought the suit in the Northern District. The Plaintiffs' choice of forum is also not dispositive in the case. While their choice of forum is typically entitled to significant weight, under certain circumstances, including in representative actions, where the Plaintiff seeks to vindicate rights of others or where the Plaintiff is not a resident of the forum, the Plaintiff's choice of forum is accorded less weight. Moreover, neither party has shown transfer would be particularly inconvenient: the Plaintiffs offer no concrete argument on this point, and despite CDE's arguments to the contrary, its active role in Emma C. for nearly 22 years suggests it can capably defend itself in the Northern District with minimal inconvenience. This factor tips only slightly against transfer, if at all. Finally, having devoted significant resources to determining precisely where these cases overlap, where they diverge and where efficiencies may be achieved, the Judge is satisfied that both cases will fare better if they are before the same court. Judge Chhabria, who is shepherding Emma C. through its final phases, is best suited to take the helm. Because transfer serves judicial economy, avoids unnecessary duplication of effort and expenses among the parties and reduces the risk of inconsistent results, the interest of justice tips the analysis in favor of transfer. Given the overlap now apparent between the two cases, and to avoid duplication of effort and inconsistent results, Judge Mueller transferred the matter to the Northern District. Subject to that court's oversight, the Plaintiffs may continue in their efforts to seek discovery in the case. Within 14 days, the special master will submit an invoice for any outstanding services rendered. Also within 14 days the parties may show cause, if any, as to why the FERPA objections received in the action should not be destroyed. Immediately upon the matter's being assigned a case number in the Northern District, the parties are instructed to promptly file a notice of related cases identifying the case and Emma C. as related in accordance with the Northern District's local rules. The case is closed. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/4uMUBF from Leagle.com. Winston Krone, Special Master, represented by Winston Krone- Special Master -- wkrone@kivuconsulting.com -- Kivu Consulting, Inc. Morgan Hill Concerned Parents Association, Plaintiff, represented by Rony Sagy -- rony.sagy@sagylaw.com -- Sagy Law Associates & Barbara Louise Gately -- barbara.gately@sagylaw.com -- Sagy Law Associates. California Department of Education, Defendant, represented by Ismael Castro, Office Of The Attorney General, Department Of Justice, Julia R. Jackson, Attorney General of California Department of Justice, Niromi Wijewantha Pfeiffer, Office Of The Attorney General, Department Of Justice, R. Matthew Wise, Office Of The Attorney General, Grant Lien, Attorney General's Office of the State of California & Paul E. Lacy, California Department Of Education. CALIFORNIA TEACHERS: Martin Sues over Share Service Fees -------------------------------------------------------- A class action lawsuit alleges that California Teachers Association has violated the constitutional rights of its members by forcing them to work in an "agency shop," where they must choose between retaining their union membership and paying full union dues, or resigning their membership and paying a slightly reduced amount in "fair share service fees." According to the complaint, Michael Martin chose to remain in the union until the Supreme Court's ruling in Janus v. AFSCME Council 31, No. 16-1466 (2018), even though he opposed the union and its political and collective-bargaining activities, because resigning his membership would have saved very little money and would not have been worth the cost of losing his vote and whatever little influence he might have had in collective-bargaining matters. But this does not in any way diminish the affront to Mr. Martin's constitutional rights or the harm that he suffered from being forced to pay at least the amount of "fair share service fees" that the CTA imposed as a condition of his employment. Mr. Martin would have quit the union if the CTA had not extracted "fair share service fees' from nonmembers. The case is captioned Michael Martin, as an individual, and on behalf of all others similarly situated, the Plaintiff, v. California Teachers Association; Riverside City Teachers Association, as representative of the class of all chapters and affiliates of the California Teachers Association; National Education Association; Riverside Unified School District, as representative of the class of all school districts in California; Edmund G. Brown, in his official capacity of Governor of the State of California; Xavier Becerra, in his official capacity as Attorney General of the State of California; Mark Gregersen, Eric Banks, Priscilla Winslow, Erich Shiners, and Arthur A. Krantz, in their official capacities as chair and members of the California Public Employment Relations Board, the Defendants, Case No. 2:18-cv-01951-MCE-AC (E.D. Cal., July 13, 2018). The California Teachers Association, initially established in 1863, is one of the largest and most powerful teachers' unions in California politics. It is based in Burlingame, and its current president is Eric C. Heins.[BN] Counsel for Plaintiffs and Proposed Class: Jonathan F. Mitchell, Esq. MITCHELL LAW PLLC 106 East Sixth Street, Suite 900 Austin, TX 78701 Telephone: (512) 686 3940 - and - Bradley Benbrook, Esq. BENBROOK LAW GROUP, PC 400 Capitol Mall, Suite 2530 Sacramento, CA 95814 Telephone: (916) 447 4900 CIGNA CORPORATION: "Zhu" Moved to Eastern Dist. of Pennsylvania --------------------------------------------------------------- The class action lawsuit titled JIANLIANG ZHU and JOYCE ALLEN, on behalf of themselves and all others similarly situated, the Plaintiffs, v. CIGNA CORPORATION; CIGNA HEALTH AND LIFE INSURANCE COMPANY; AMERICAN SPECIALTY HEALTH INCORPORATED; and AMERICAN SPECIALTY HEALTH GROUP, INC., the Defendants, Case No. 3:18-cv- 01029, was transferred from the U.S. District Court for Southern District of California, to the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) on July 16, 2018. The District Court Clerk assigned Case No. 2:18-cv-02927-NIQA to the proceeding. The case is assigned to the Hon. Judge Nitza I. Quinones Alejandro. This class action challenges a scheme devised by Defendant Cigna Corporation and its subsidiaries that misappropriates millions of dollars every year from Cigna members and employers who sponsor Cigna-administered health insurance plans that are subject to ERISA. Through this scheme, Cigna secretly inflates member and plan responsibility to pay for claims and forces these innocent parties to pay its vendors, Defendants American Specialty Health Incorporated and American Specialty Health Group, Inc. Cigna is an American worldwide health services organization based in suburban Bloomfield, Connecticut and Philadelphia, Pennsylvania.[BN] Counsel for Jianliang Zhu and Joyce Allen, on behalf of themselves and all others similarly situated: Anthony F. Maul, Esq. THE MAUL FIRM, P.C. 101 Broadway, Suite 3A Oakland, CA, 94607 Telephone: (510) 496 4477 - and - Steven A. Schwartz, Esq. Jessica L. Titler, Esq. CHIMICLES & TIKELLIS LLP 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642 8500 Facsimile: (610) 649 363 - and - Jason M. Knott, Esq. ZUCKERMAN SPAEDER LLP 1800 M Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 778 1813 Facsimile: (202) 822 8106 - and - D. Brian Hufford, Esq. Jason S. Cowart, Esq. Nell Z. Peyser, Esq. ZUCKERMAN SPAEDER LLP 399 Park Avenue, 14th Floor New York, NY 10022 Telephone: (212) 704 9600 Facsimile: (212) 704 4256 CINTAS CORP: "Paramo" Labor Suit Transferred to N.D. Cal. --------------------------------------------------------- The case captioned Lisa Paramo on behalf of herself and all others similarly situated, and on behalf of the general public, Plaintiffs, v. Cintas Corporate Services, Inc. and Cintas Corporation, Defendant, Case No. 18-cv-00020, (C.D. Cal., May 16, 2018), was transferred to the U.S. District Court for the Northern District of California (San Francisco) on May 17, 2018, under Case No. 18-cv-02912. Cintas Corporate Services, Inc. operates as a subsidiary of Cintas Corporation No. 2, which provides uniform rental and facility services for businesses in North America, Latin America, Europe, and Asia.[BN] Plaintiff is represented by: William David Turley, Esq. David Thomas Mara, Esq. Gwendolyne Nicole Ousdahl, Esq. Jill Marie Vecchi, Esq. Matthew Evan Crawford, Esq. THE TURLEY LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Tel: (619) 234-2833 Fax: (619) 234-4048 Email: bturley@turleylawfirm.com dmara@turleylawfirm.com gwenousdahl@yahoo.com jvecchi@turleylawfirm.com mcrawford@turleylawfirm.com Cintas Corporate Services is represented by: Marisol C. Mork SQUIRE PATTON BOGGS US LLP 555 South Flower Street 31st Floor Los Angeles, CA 90071-2300 Tel: (213) 624-2500 Fax: (213) 623-4581 Email: marisol.mork@squirepb.com - and - Michael William Kelly, Esq. Suzanne S. Orza, Esq. SQUIRE PATTON BOGGS US LLP 275 Battery Street, Suite 2600 San Francisco, CA 94111 Tel: (415) 954-0200 Fax: (415) 393-9887 Email: michael.kelly@squirepb.com suzy.orza@squirepb.com CIS SERVICES: "Edwards" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------- Iatrice Edwards and Joel Galarza, individually and on behalf of all others similarly situated, Plaintiff, v. CIS Services LLC, CIS Alamo Services, CIS Claim Services LLC and Michael Stanley, Defendants, Case No. 18-cv-00637, (M.D. Fla., May 15, 2018), seeks to recover unpaid overtime compensation for all hours worked above 40 in a workweek, unpaid backwages, liquidated damages, pre-judgment interest and attorney's fees and litigation expenses pursuant to the Fair Labor Standards Act. Defendants operate an insurance adjusting service in Jacksonville FL where Edwards and Galarza performed adjusting services from May 2013 to March 2018. They claims to have been misclassified as independent contractors and denied overtime premium. [BN] Plaintiff is represented by: Amber L. Karns, Esq. Michael A. Starzyk, Esq. Megan M. Mitchell, Esq. STARZYK AND ASSOCIATES, PC 10200 Grogan's Mill Road, Suite 300 The Woodlands, TX 77380 Tel: (281) 364-7261 Fax: (281) 364-7533 Email: akarns@starzyklaw.com mstarzyk@starzyklaw.com mmitchell@starzyklaw.com COLLINS CAREER: "Cyfers" Suit Moved to District of West Virginia ---------------------------------------------------------------- The class action lawsuit titled Korey Blayke Cyfers, on behalf of himself, and others similarly situated, the Plaintiff, v. Collins Career Center, doing business as: Collins Career Technical Center; Board of Directors Collins Career Center, doing business as: Collins Career Technical Center; West Virginia Fire Commission; and Office of the State Fire Marshal, the Defendants, Case No. 18-C-77, was removed from the Kanawha County Circuit Court, to the U.S. District Court for the Southern District of West Virginia (Charleston) on July 5, 2018. The Southern District of West Virginia Court Clerk assigned Case No. 2:18-cv-01127 to the proceeding. The case is assigned to the Hon. Judge John T. Copenhaver, Jr. Collins Career Technical Center is a public vocational high school in Chesapeake, Ohio.[BN] Attorneys for Korey Blayke Cyfers: Anthony J. Majestro, Esq. POWELL & MAJESTRO 405 Capitol Street, Suite P-1200 Charleston, WV 25301 Telephone: (304) 346 2889 Facsimile: (304) 346 2895 E-mail: amajestro@powellmajestro.com - and - D. Adrian Hoosier II, Esq. LORD HOOSIER 225 Hale Street Charleston, WV 25301 Telephone: (304) 345 8030 Facsimile: (304) 553 7227 E-mail: adrian@lordhoosier.com Attorneys for Collins Career Center and Board of Directors Collins Career Center: David A. Bosak, Esq. LEWIS BRISBOIS BISGAARD & SMITH 222 Capitol Street Charleston, WV 25301 Telephone: (304) 553 0166 Facsimile: (304) 932 0265 E-mail: dave.bosak@lewisbrisbois.com - and - David Lewis Shuman, Jr., Esq. Matthew A. Nelson, Esq. LEWIS BRISBOIS BISGAARD & SMITH 222 Capitol Street, Fifth Floor Charleston, WV 25301 Telephone: (304) 553 0166 Facsimile: (304) 932 0265 E-mail: david.shuman@lewisbrisbois.com matt.nelson@lewisbrisbois.com CONTRACT METAL: Faces "Escorza" Suit over Meal Breaks ----------------------------------------------------- EDGAR ARMENTA ESCORZA, an individual, on behalf of himself and others 1211 similarly situated, the Plaintiff, v. CONTRACT METAL PRODUCTS, INC.; and DOES 1 thru 50, inclusive, the Defendant, Case No. RG18912870 (Cal. Super. Ct., July 16, 2018), alleges that Defendant has had a consistent policy of failing to inform the Proposed Class Members of their right to take meal periods by way of a lawful policy and requiring Proposed Class Members within the State of California, including Plaintiff, to work at least 5 hours without a timely meal period and failing to pay such employees one hour of pay at the employees' regular rate of compensation for each workday that the meal period is not provided or provided after five hours, as required by California state wage and hour laws.[BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. Kelsey M. Szamet, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: eric@kingsleykingsley.com kelsey@kingsleykingsley.com CREDITORS RELIEF: Court Dismisses "Hale" TCPA Suit -------------------------------------------------- The United States District Court for the District of New Jersey granted Defendant's Motion to Dismiss the case captioned JEFFREY HALE, individually and on behalf of all others similarly situated, Plaintiff, v. CREDITORS RELIEF LLC, Defendant, Civil Action No. 17-2447 (JMV)(MF)(D.N.J.). Currently pending before the Court is the motion of Defendant Creditors Relief LLC's (Creditors Relief) to dismiss Plaintiff Jeffrey Hale's Complaint, or in the alternative, to strike the class allegations made in the Complaint and to stay discovery. This matter is a putative class action based on alleged violations of the Telephone Consumer Protection Act (TCPA). The Complaint alleges that Defendant ran afoul of the TCPA by using an automatic telephone dialing system (ATDS) to call Plaintiff without his consent. The Court finds that the Plaintiff has failed to allege the first element, that is, that the call in question was to his cellular telephone. The Plaintiff attempts to remedy this deficiency with a declaration attached to his opposition papers. The Plaintiff, however, may not amend his pleadings in his brief or with a declaration annexed thereto. Also, of note, the Complaint alleges that the Defendant has called other members of the putative class on cellular telephones, but the sources cited do not make this clear. In paragraph 12 of the Complaint, the Plaintiff quotes a number of people who have posted on the website 800notes.com, but the quotes do not indicate calls to cellular phones. Instead, one states that "the number has called my home several times," and a second was "made to our business." Thus, the Complaint's factual allegations are insufficient. The Complaint is therefore dismissed for failure to plausibly plead a claim. A full-text copy of the District Court's June 4, 2018 Opinion is available at https://tinyurl.com/y7uoa2es from Leagle.com. JEFFREY HALE, individually and on behalf of all others similarly situated, Plaintiff, represented by ROSS H. SCHMIERER -- rschmierer@denittislaw.com -- DeNittis Osefchen Prince, P.C., STEPHEN PATRICK DENITTIS -- sdenittis@denittislaw.com -- DENITTIS OSEFCHEN, PC & STEFAN LOUIS COLEMAN . CREDITORS RELIEF LLC, a New Jersey limited liability company, Defendant, represented by SANDRA T. JIMENEZ -- sjimenez@grsm.com -- GORDON & REES LLP. DALMATIAN FIRE: Rutledge and Davis Sues Over Unwanted Faxed Ads --------------------------------------------------------------- Rutledge and Davis, PLLC, a Mississippi professional limited liability company, Plaintiff, v. Dalmatian Fire Equipment, Inc., Defendant, Case No. 18-cv-00114, (N.D. Miss., May 16, 2018), seeks damages and injunctive relief pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. Dalmatian is a consumer products company and distributor of fire extinguisher cylinders. It utilizes "fax blasting" activities to generate sales leads for its products and as part of a scheme to sale or promote the sale and use of its products for the transmission of thousands of unsolicited facsimiles throughout the country, notes the complaint. [BN] Plaintiff is represented by: L.N. Chandler Rogers, Esq. ROGERS LAW GROUP 201 E Bankhead Street New Albany, MS 38652 Tel: (662) 538-5990 Fax: (662) 538-5997 Email: chandler@rogerslawgroup.com - and - Winston B. Collier, Esq. THE COLLIER FIRM 2090 Old Taylor Road Oxford, MS 38655 Tel: (870) 347-2100 Fax: (870) 347-1164 Email: winston@thecollierfirm.com - and - Gregory M. Zarzaur, Esq. ZARZAUR MUJUMDAR & DEBROSSE 2332 2nd Avenue North Birmingham, AL 35203 Tel: (205) 983-7985 Fax: (888) 505-0523 Email: Gregory@zarzaur.com DIVERSIFIED CONSULTANTS: "Underwood" Disputes Collection Letter --------------------------------------------------------------- Britanni Underwood, individually and on behalf of all others similarly situated, Plaintiff, v. Diversified Consultants Inc., Pinnacle Credit Services, LLC and John Does 1-25, Defendant, Case No. 18-cv-00114, (N.D. Miss., May 16, 2018), seeks statutory damages, injunctive relief as well as their reasonable attorney's fees pursuant to the Fair Debt Collection Practices Act. Defendants were tasked to collect the alleged debt of Underwood to Verizon Wireless. Defendant sent the Plaintiff a collection letter indicating that they will not sue the consumer without clearly stating that the consumer could no longer be sued by any party and failed to disclose that the previously-lapsed statute of limitations to file a lawsuit to collect the debt will recommence upon payment. Said letter was sent on or after a date one year prior to the filing of this action and on or before a date twenty-one days after the filing of this action, says the complaint. [BN] Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM LLC 3475 Sheridan St., Suite 310 Hollywood, FL 33021 Tel: (954) 217-3084 Fax: (954) 272-7807 Email: justin@zeiglawfirm.com EDRIVING LLC: "Glynn" Suit Moved to Northern Dist. of Illinois -------------------------------------------------------------- The class action lawsuit titled Jack Glynn, individually and on behalf of a class of similarly situated individuals, the Plaintiff, v. eDriving, LLC, a Delaware limited liability corporation, the Defendant, Case No. 2018CH7116, was removed from the Circuit Court of Cook County, to the U.S. District Court for the Northern District of Illinois (Chicago) on July 5, 2018. The District Court Clerk assigned Case No. 1:18-cv-04645 to the proceeding. The case is assigned to the Hon. Judge Gary Feinerman. eDriving LLC provides online driving courses.[BN] The Plaintiff is represented by: Jad Sheikali, Esq. William P. N. Kingston, Esq. MCGUIRE LAW, P.C. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893 7002 E-mail: jsheikali@mcgpc.com wkingston@mcgpc.com The Defendant is represented by: Eric L. Samore, Esq. Kathryn Victoria Long, Esq. SMITHAMUNDSEN LLC (CHGO) 150 North Michigan Avenue, Suite 3300 Chicago, IL 60601 Telephone: (312) 894 3200 E-mail: esamore@salawus.com KLong@salawus.com EIGHT FAHRENHEIT: "Anderson" Action to Recover Unpaid Overtime -------------------------------------------------------------- Kyle Anderson and Dominick Soto, individually and on behalf of all those similarly situated, Plaintiffs, v. Eight Fahrenheit, Inc. and Rajiv Shah, jointly and severally, Defendants, Case No. 18-cv-02177, (N.D. Ga., May 15, 2018), seeks to recover unpaid overtime premium pay, owed to them pursuant to the Fair Labor Standards Act. Defendants operate an ice cream store franchise "8 Fahrenheit" where Anderson and Soto worked at the Doraville store as a store manager and ice cream maker respectively. Both claim to have worked in excess of 40 hours per workweek without being paid overtime premium. [BN] Plaintiff is represented by: Brandon A. Thomas, Esq. THE LAW OFFICES OF BRANDON A. THOMAS, PC 1800 Peachtree Street, N.W., Suite 300 Atlanta, GA 30309 Tel: (404) 343-2441 Fax: (404) 352-5636 Email: brandon@brandonthomaslaw.com ENVISION HEALTHCARE: Modi Balks at Merger Deal with Enterprise -------------------------------------------------------------- ANIRUDH MODI, individually and on behalf of all others similarly situated, the Plaintiff, v. ENVISION HEALTHCARE CORPORATION, WILLIAM A. SANGER, CHRISTOPHER A. HOLDEN, CAROL J. BURT, JAMES A. DEAL, LEONARD M. RIGGS, JOHN T. GAWALUCK, STEPHEN I. GERINGER, JAMES D. SHELTON, JOEY A. JACOBS, MICHAEL L. SMITH, KEVIN P. LAVENDER, CYNTHIA S. MILLER, ENTERPRISE PARENT HOLDINGS INC., and ENTERPRISE MERGER SUB INC., the Defendants, Case No. 3:18-cv-00648 (M.D. Tenn., July 13, 2018), is a stockholder class action on behalf of public stockholders of Envision Healthcare Corporation, alleging that Envision, and the Company's Board of Directors violated Sections 14(a) and 20(a) of the Securities and Exchange Act of 1934 and breached their fiduciary duty as a result of Defendants' efforts to sell the Company to Enterprise Parent Holdings, Inc., and its affiliate Enterprise Merger Sub, Inc., both of which are affiliates of private equity funds associated with KKR & Co. L.P. The deal, the lawsuit contends, is the result of an unfair process at an unfair price. The lawsuit seeks to enjoin a stockholder vote on a proposed stock and cash transaction valued at approximately $9.9 Billion. The terms of the Proposed Transaction were memorialized in a June 13, 2018, filing with the Securities and Exchange Commission on Form 8-K attaching the definitive Agreement and Plan of Merger. Under the terms of the Merger Agreement, Envision will become an indirect wholly-owned subsidiary of KKR, and its stockholders will receive $46.00 in cash for every share of Envision Common stock they own. Thereafter, on July 9, 2018, Envision filed a Preliminary Proxy Statement on Schedule 14A with the Securities and Exchange Commission in support of the Proposed Transaction. The Proposed Transaction is unfair and undervalued for a number of reasons. Significantly, the Preliminary Proxy describes an insufficient sales process in which the Board failed to create a proper committee of disinterested directors to run the sales process. Envision Healthcare is an American healthcare company and national hospital based physician group. In December 2016 Envison and AMSURG merged, and shortly thereafter the company's stock replaced Legg Mason in the S&P 500 index.[BN] The Plaintiff is represented by: Paul Kent Bramlett, Esq. Robert Preston Bramlett, Esq. BRAMLETT LAW OFFICES 40 Burton Hills Blvd., Suite 200 P.O. Box 150734 Nashville, TN 37215 Telephone: 615 248 2828 Facsimile: 866 816 4116 E-mail: PKNASHLAW@aol.com Robert@BramlettLawOffices.com - and - Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: 610.667.6200 E-mail: esmith@brodskysmith.com mackerman@brodskysmith.com FEDERAL WARRANTY: "Woturski" Suit Moved to District of New Jersey ----------------------------------------------------------------- The class action lawsuit titled ROSE M. WOTURSKI, individually and on behalf of others similarly situated, the Plaintiff, v. FEDERAL WARRANTY SERVICE CORPORATION, the Defendant, Case No. CPM-L-199-17, was removed from the Cape May County Court, to the U.S. District Court for the District of New Jersey (Camden) on July 5, 2018. The New Jersey District Court Clerk assigned Case No. 1:18-cv-11370-NLH-KMW to the proceeding. The case is assigned to the Hon. Judge Noel L. Hillman. Federal Warranty Service Corporation operates as a subsidiary of American Bankers Insurance Group, Inc.[BN] The Plaintiff is represented by: Lewis G. Adler, Esq. LAW OFFICE OF LEWIS ADLER 26 Newton Avenue Woodbury, NJ 08096 Telephone: (856) 845 1968 E-mail: lewisadler@verizon.net The Defendant is represented by: John R. Vales, Esq. DENTONS US LLP 101 JFK Parkway Short Hills, NJ 07078-2708 Telephone: (973) 912 7100 Facsimile: (973) 912 7199 E-mail: john.vales@dentons.com FIAT CHRYSLER: Bid for Production of MDL 2777 Transcripts Denied ---------------------------------------------------------------- The United States District Court for the Southern District of New York denied Plaintiff's Request for Production in the case captioned VICTOR PIRNIK, individually and on behalf of all others similarly situated, Plaintiff, v. FIAT CHRYSLER AUTOMOBILES, N.V., et al., Defendants, No. 15-CV-7199 (JMF)(S.D.N.Y.). There are pending two letter motions raising discovery disputes. In the first letter motion, Lead Plaintiffs Gary Koopmann and Timothy Kidd and Plaintiff Victor Pirnik (Plaintiffs) challenge the Defendants' refusal to produce deposition transcripts and exhibits for the depositions that will take place in the In re Chrysler-Dodge-Jeep Ecodiesel Marketing, Sales Practices, and Products Liability Litigation, MDL 2777 (MDL), now pending in the Northern District of California. Plaintiffs' letter motion is denied. The Court agrees with the Defendants that the transcripts of depositions not yet taken in another action are not responsive to the Plaintiffs' December 15, 2017 Request for Production, which sought all documents produced in connection with the MDL and called for documents up to the date of the requests. A full-text copy of the District Court's June 4, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ybautgd6 from Leagle.com. Gary Koopman & Timothy Kidd, Lead Plaintiffs, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A., Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Laurence Matthew Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A., Sara Esther Fuks -- sfuks@rosenlegal.com -, The Rosen Law Firm, P.A., Veronica Valeria Montenegro, Pomerantz LLP & Michael Jonathan Wernke -- mjwernke@pomlaw.com -- Pomerantz LLP. Victor Pirnik, Individually and on behalf of all others similarly situated, Plaintiff, represented by Michael Jonathan Wernke, Pomerantz LLP, Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, Sara Esther Fuks, The Rosen Law Firm, P.A., Veronica Valeria Montenegro, Pomerantz LLP & Jeremy Alan Lieberman, Pomerantz LLP. Sheila Ross, Consolidated Plaintiff, represented by John Brandon Walker -- bragar@bespc.com -- Bragar, Eagel & Squire P.C. & Todd Harris Henderson -- henderson@bespc.com -- Bragar, Eagel & Squire P.C. Fiat Chrysler Automobiles N.V. & Sergio Marchionne, Defendants, represented by Anil Karim Vassanji -- vassanjia@sullcrom.com -- Sullivan & Cromwell LLP, Joshua Seth Levy -- levyjo@sullcrom.com -- Sullivan & Cromwell, LLP, Robert Joseph Giuffra, Jr. -- giuffrar@sullcrom.com, Sullivan & Cromwell, LLP, Thomas Charles White -- whitet@sullcrom.com -- Sullivan & Cromwell, LLP, Victoria Alterman Coyle -- coylev@sullcrom.com -- Sullivan & Cromwell, LLP & William Brian Monahan -- monahanw@sullcrom.com -- Sullivan & Cromwell, LLP. Scott Kunselman, Defendant, represented by Anil Karim Vassanji, Sullivan & Cromwell LLP,Joshua Seth Levy, Sullivan & Cromwell, LLP, Robert Joseph Giuffra, Jr., Sullivan & Cromwell, LLP & Thomas Charles White, Sullivan & Cromwell, LLP. FCA US LLC, Michael Dahl, Steve Mazure & Robert E. Lee, Defendants, represented by Robert Joseph Giuffra, Jr., Sullivan & Cromwell, LLP & Thomas Charles White, Sullivan & Cromwell, LLP. FIRST COMMUNITY: Court Certifies Class in "Lavigne" TCPA Suit ------------------------------------------------------------- In the case, JANINE LAVIGNE, Plaintiff, v. FIRST COMMUNITY BANCSHARES, INC. and FIRST NATIONAL BANK TEXAS, Defendants, Civil No. 1:15-cv-00934-WJ/LF (D. N.M.), Judge William P. Johnson of the U.S. District Court for the District of New Mexico granted the Plaintiff's Motion to Certify Class and denied the Defendants' Motion to Strike Declaration of Plaintiff's Fact Witness Anya Verkhovskaya, filed Nov. 7, 2017. This is a putative class action for relief under the Telephone Consumer Protection Act ("TCPA"). the Plaintiff alleges that Defendant First Community and its subsidiary Defendant First National Bank of Texas violated the TCPA by placing telephone calls to her cellular telephone for non-emergency purposes, without her consent, using an automatic telephone dialing system ("ATDS") as defined by the TCPA. She seeks relief under the TCPA for herself and all others similarly situated. The Defendants deny liability. The amended complaint includes general allegations asserted on behalf of the putative class and asserts Violations of the TCPA (Count I) and Willful Violations of the TCPA (Count II). Defendant First Community Bancshares, Inc. Defendants contracted with GC Services to place calls to their customers with overdrafted bank accounts. the Plaintiff alleges that, after she acquired her cell phone number ending -4951, Defendants repeatedly called her using an auto-dialer, in reference to an over-drafted bank account, despite the fact that she repeatedly told the Defendants they have the wrong person. She alleges that the Defendants did not consider the "Bad/Wrong Number" entries, but simply resubmitted her phone number to GC Services for use the next day. Thus, it is unclear whether Defendants and GC Services had any system in place to maintain compliance with the TCPA. The Plaintiff seeks to certify, pursuant to Fed. R. Civ. P. 23(b)(3), a class of all persons who, since Nov. 11, 2012, (1) called First National Bank Texas and First Community Bancshares, through their vendor GC services, and such call was coded Bad/Wrong Number and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, through their vendor GC Services with an automatic telephone dialing system and such call was again coded as Bad/Wrong Number. In her reply, the Plaintiff amended her class as all persons who, since Nov. 11, 2012, (1) called First National Bank Texas and First Community Bancshares, through their vendor GC services, and such call was coded Bad/Wrong Number and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, on their cellular telephones through their vendor GC Services with an automatic telephone dialing system and such call was again coded as Bad/Wrong Number. The Plaintiff seeks to certify a class of individuals they claim called the Defendant to say that the Defendant was calling the wrong number, but whom the Defendants continued to call anyway, and were again coded as "Bad/Wrong Number." she intends that the class will only include non-customers, and proposes to weed-out any customers form the class by reference to the Defendants' business records (i.e., deposit agreements), or through affidavits from class members averring that they were not customers of the Defendants. Mark Schordock, a GC Services Representative, testified that an incoming call coded as "Bad/Wrong Number" means that "somebody's saying it's not them that we're dialing." Much later, in an affidavit, Mr. Schordock listed numerous reasons why a call could be coded as "Bad/Wrong Number," other than that the called party was calling back to give express notice that they were not customers. The class certification litigation has been burdened by four separate rounds of briefing, and an eight month delay for additional discovery. The surreply was filed on April 23, 2018. Judge Johnson granted the Plaintiff's Motion for Class Certification, and certified the modified class pursuant to Fed. R. Civ. P. 23(b)(3). The certification is without prejudice to the Defendants bringing a motion to decertify the class should the progression of the case warrant it. The Judge appointed Lemberg Law, LLC (Stephen Taylor) as the class counsel pursuant to Fed. R. Civ. P. 23(g). The Plaintiff's counsel will submit a proposed plan for class notice to the Defendants. The parties will then either jointly submit a proposed notice to the Court for approval, or the Plaintiff will file an opposed motion for approval of notice. Finally, Judge Johnson denied the Defendants' Motion to Strike Affidavit. Initially, he doubts that Ms. Verkhovskaya needs to be an expert to perform the limited tabulations in the affidavit. The Defendants also argue that the Nexxa data relied on by Ms. Verkhovskya is hearsay, and that Ms. Verkhovskya's conversion of PDF records provided by the Defendants to Excel is error-ridden. Even setting aside the sections of the Ms. Verkhovskya's affidavit tainted by alleged hearsay, the Judge finds that the Plaintiff has established numerosity. Even if only a fraction of the approximately 38,125 are in fact class members, the numerosity requirement is readily satisfied. A full-text copy of the Court's June 5, 2018 Memorandum Opinion and Order is available at https://is.gd/oftbVM from Leagle.com. Janine LaVigne, on behalf of herself and all others similarly situated, Plaintiff, represented by Blake J. Dugger, Law Offices of Blake Dugger & Stephen F. Taylor, Lemberg Law, LLC, pro hac vice. First Community Bancshares, Inc. & First National Bank Texas, Defendants, represented by William S. Helfand -- Bill.Helfand@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith, LLP & Gregory L. Biehler -- reg.Biehler@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. FITBIT INC: Court Narrows Claims in "McLellan" Suit --------------------------------------------------- Judge James Donato of the U.S. District Court for the Northern District of California granted in part and denied in part Fitbit's motion to dismiss the case, KATE MCLELLAN, et al., Plaintiffs, v. FITBIT, INC., Defendant, Case No. 3:16-cv-00036-JD (N.D. Cal.). In this putative class action, named Plaintiff Rob Dunn alleges that the Defendant misled consumers about the ability of Fitbit's wristband devices to track user heart rate. Specifically, Dunn alleges that although Fitbit marketed its "PurePulse" technology as providing accurate, real-time heart monitoring, particularly during exercise, user experience and independent research show that PurePulse-equipped devices are grossly inaccurate and frequently fail to record any heart rate at all. Dunn sues under the California Consumer Legal Remedies Act ("CLRA"), the California False Advertising Law ("FAL"), the California Unfair Competition Law ("UCL"), common-law fraud, fraud in the inducement, unjust enrichment, breach of express warranty, breach of implied warranties under the Magnuson-Moss Warranty Act, and the Arizona Consumer Fraud Act. Fitbit moves to dismiss the complaint for lack of particularity under Rule 9(b) and Rule 8. Judge Donato finds that Fitbit raises a variety of other objections to the plausibility of the fraud and deception claims, none of which are well taken. Given the magnitude of the aberrant heart rate readings and multiple allegations that the devices under-report heart rate, Dunn has plausibly alleged an "unreasonable safety hazard" that may arise when users rely on Fitbit heart rate readings during exercise. While the Ninth Circuit has found that safety risks may not be unreasonable if the defendant "expressly warns consumers" or if the risk is "primarily one of accelerated timing rather than the manifestation of a wholly abnormal condition," those factors do not weigh in Fitbit's favor. Next, the Judge finds that Fitbit received pre-suit notice in November 2015, when the Plaintiff's counsel sent Fitbit a letter on behalf of Kate McLellan, another named plaintiff in the case, and a proposed class of consumers who had purchased Fitbit's PurePulse Devices. That notice was sufficient under California law and gave Fitbit the opportunity to cure that the CLRA contemplates. The November 2015 letter also advised Fitbit that the Plaintiffs intended to pursue claims for breach of implied and express warranty, so notice requirements for the warranty claims have also been satisfied. As to the warranty claims, the Judge finds that Dunn adequately alleges that Fitbit made an express warranty about the ability of PurePulse devices to accurately track heart rate throughout the day and during exercise. The Court dismisses the unjust enrichment claim. The motion to dismiss is otherwise denied, subject to Dunn's representation that he will amend the complaint to include product packaging statements and allegations of reliance. Dunn also adequately pleads a claim under the Magnuson-Moss Act for breach of implied warranty under California Code Section 2314(1). Lastly, the unjust enrichment claim will be dismissed with prejudice, since unjust enrichment is a remedy and not an independent claim. For these reasons, Judge Donato dismissed with prejudice the unjust enrichment claim. Provided that Dunn revises his complaint to include product packaging statements and allegations of reliance, Dunn may proceed with his claims under the CLRA, FAL, UCL, common-law fraud, fraud in the inducement, breach of express warranty, breach of implied warranties under the Magnuson-Moss Warranty Act, and the Arizona Consumer Fraud Act. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/7vsEcv from Leagle.com. Kate McLellan, David Urban, Robert Dunn, Rachel Saito, Todd Rubinstein, James Schorr & Bruce Morgan, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Jonathan David Selbin -- jselbin@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, Elizabeth J. Cabraser -- ecabraser@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, Kelly M. Dermody -- kdermody@lchb.com -- Leiff Cabraser Heimann & Bernstein LLP, Kevin R. Budner -- kbudner@lchb.com -- Lieff, Cabraser, Heimann and Bernstein, LLP & Robert Howard Klonoff -- klonoff@lclark.edu -- Robert H Klonoff, LLC, pro hac vice. Teresa Black & Rhonda Callan, Plaintiffs, represented by Jonathan David Selbin, Lieff Cabraser Heimann & Bernstein LLP, Robert Howard Klonoff, Robert H Klonoff, LLC, pro hac vice, Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein LLP & Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP. Amber Jones, Plaintiff, represented by Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP & Jonathan David Selbin, Lieff Cabraser Heimann & Bernstein LLP. Judith Landers, Lisa Marie Burke & John Molenstra, Plaintiffs, represented by Andrea Clisura -- aclisura@zlk.com -- Levi Korsinksy, LLP, pro hac vice, Courtney E. Maccarone -- cmaccarone@zlk.com -- Levi & Korsinsky LLP, pro hac vice, Rosemary M. Rivas, Levi & Korsinsky LLP, Jonathan David Selbin, Lieff Cabraser Heimann & Bernstein LLP & Kevin R. Budner, Lieff, Cabraser, Heimann and Bernstein, LLP. Fitbit, Inc., Defendant, represented by Erin McCalmon Bosman -- ebosman@mofo.com -- Morrison & Foerster LLP, Julie Yongsun Park - - juliepark@mofo.com -- Morrison & Foerster LLP, William Lewis Stern -- wstern@mofo.com -- Morrison & Foerster LLP, Anna Erickson White -- awhite@mofo.com -- Morrison & Foerster LLP & Kai Shields Bartolomeo -- kbartolomeo@mofo.com -- Morrison Foerster LLP. FORCEMANAGEMENT GROUP: Veliz Seeks OT & Minimum Wages ----------------------------------------------------- JOSE F. VELIZ and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, v. FORCEMANAGEMENT GROUP, INC., GINA ROSSI, the Defendants, Case No. 1:18-cv-22853-DPG (S.D. Fla., July 16, 2018), alleges that Defendants have employed several other similarly situated employees, like Plaintiff, who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years, pursuant to the Fair Labor Standards Act. Force Management provides customized sales consulting and training services to high-technology organizations.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865 6766 Facsimile: (305) 865 7167 E-mail: ZABOGADO@AOL.COM FORT BEND COUNTY, TX: Final Judgment in "Roach" Suit Affirmed ------------------------------------------------------------- In the cases, VERAKISHA ROACH, JEREMY BRADY, DERON R. HARRINGTON, SUSAN HERBST SOTO, CAROLE STEWART ANHALT AND PERCY ISGITT, Appellants, v. HEATHER INGRAM, ERIN MILLER, GRAYLE JAMES, DAVE ROSENTHAL, KRISTIN K. TASSIN, JASON BURDINE, K.P. GEORGE, ADDIE HEYLIGER, JIM RICE, CHAD BRIDGES, RONALD POPE, BRENDA MULLINIX, MAGGIE PEREZ-JARAMILLO, JAMES SHOEMAKE, DAVID PERWIN, CHRISTOPHER MORALES, JEFFREY MCMEANS, SUSAN LOWERY, R.H. BIELSTEIN, MATTHEW "KYLE" DOBBS, KEN CANNATA, NINA SCHAEFER, ROBERT E. HEBERT, RICHARD MORRISON, GRADY PRESTAGE, ANDY MEYERS AND JAMES PATTERSON, Appellees, Case Nos. 14-16-00790-CV, 14-16-01016-CV (Tex. App.), Judge Ken Wise of the Court of Appeals of Texas for the Fourteenth District, Houston, affirmed the trial court's final judgment dismissing the Plaintiffs' claims and assessing attorney's fees and sanctions against the Plaintiffs and their attorneys. The lawsuit arises out of a challenge to the enforcement of truancy violations in the Fort Bend Independent School District ("FBISD") and the implementation of an allegedly unauthorized criminal truancy court in Fort Bend County. The Plaintiffs seek declaratory and prospective injunctive relief to stop numerous public officials named as the Defendants from continuing to engage in allegedly ultra vires acts in connection with the operation of the county's truancy program. The Appellants are Verakisha Roach and Jeremy Brady, the parents of children who received summonses to appear in a Fort Bend County truancy court, and their attorneys at trial, Deron Harrington, Susan Soto, Carol Anhalt, and Percy Isgitt. The Appellees are numerous Fort Bend County public officials, including the county judge and county commissioners, the school district trustees, judges of the Fort Bend district and county courts at law, a magistrate, a justice of the peace, and a chief probation officer, all in their official capacities only. On May 6, 2015, represented by attorneys Harrington, Soto, Anhalt, and Isgitt, Roach filed suit as next friend of her son and a putative class of other similarly situated minor children, their parents, and unknown adults against the various public officials and others. About three weeks later, on May 30, the Legislature passed HB 2398, which decriminalized truancy and instituted new procedures for initiating civil truancy proceedings. Additionally, HB 2398 provided that all criminal truancy complaints or convictions and all other documents relating to an offense would be automatically expunged. The new law would become effective on Sept. 1, 2015. On June 24, 2015, Roach filed a first supplemental petition adding Brady as next friend of his son. Roach and Brady ("Parents") filed several amended petitions, adding and dropping Defendants and revising their claims. The live petition at the time of the final judgment was the sixth amended petition. In their sixth amended petition, the Parents requested declaratory and prospective injunctive relief as to 18 counts of alleged ultra vires acts by the Appellees and alleged violations of due process in connection with the FBISD's former truancy enforcement procedures and the operation of the Truancy Court. The Parents also sought certification of a class of similarly situated individuals, as well as attorney's fees, costs, and expenses. The Appellees filed various motions to dismiss the Parents' claims. Those Appellees sued in their official capacity as the Fort Bend County Judge and County Commissioners, the Precinct 3 Justice of the Peace, and the Truancy Court magistrate ("Fort Bend County Defendants") filed a plea to the jurisdiction. Those Appellees sued in their official capacity as FBISD trustees ("FBISD Defendants") filed a plea to the jurisdiction and motion for sanctions and attorney's fees. Matthew "Kyle" Dobbs, sued in his official capacity as the Chief Probation Officer of the Fort Bend County Juvenile Probation Department, filed a Rule 91A motion to dismiss, a plea to the jurisdiction, and a motion for attorney's fees and sanctions. Those Appellees sued in their official capacity as members of the Fort Bend County Juvenile Board ("Judicial Defendants") filed a Rule 91a motion to dismiss and a motion for attorney's fees and sanctions. Unlike the other public officials, the Judicial Defendants also filed a Texas Citizens' Protection Act ("TCPA") motion to dismiss. In response to the Judicial Defendants' TCPA motion to dismiss, the Parents filed a document titled "Counter Anti-SLAPP Motion, Motion for Sanctions, and Attorney's Fees" against the Judicial Defendants. The Parents later filed a similarly titled motion to dismiss in which they requested the same relief and additionally sought dismissal of the Judicial Defendants' and Dobbs' Rule 91a motions ("counter-TCPA motion"). In the counter-TCPA motion, the Parents also sought sanctions and attorney's fees under the TCPA against both the Judicial Defendants and Dobbs. The trial court held a hearing on the parties' various motions on Aug. 26, 2017. During the hearing, the court indicated that it would deny the Parents' counter-TCPA motion, but because not all issues were reached, the hearing was continued until the next available date on the court's docket. Although the court declined to sign an order denying the Parents' counter-TCPA motion on August 26, the Parents filed an interlocutory appeal that same day. The hearing resumed on Sept. 22, 2017, at which time, the trial court orally rendered judgment on the remaining issues, including sanctions and attorney's fees. On Sept. 27, 2017, the trial court signed a final judgment granting the Appellees' dispositive motions; denying the Parents' counter-TCPA motion; dismissing the lawsuit with prejudice; awarding certain appellees attorney's fees and costs; and assessing monetary sanctions against Roach, Brady, and the Attorneys. That same day, the Parents filed a second interlocutory appeal of the trial court's order denying their counter-TCPA motion. The Parents and the Attorneys then filed post-judgment motions including a motion for new trial, motion to modify the judgment, and request for findings of fact and conclusions of law. The Parents and the Attorneys jointly appealed the final judgment on Dec. 21, 2016. On appeal, the Parents and the Attorneys raise 12 issues: (1) the final judgment is void because it was signed after the Parents appealed the denial of their counter-TCPA motion staying all proceedings in the trial court; (2) the trial judge should have been disqualified because he was a party in his official capacity as a Juvenile Board member and had a personal interest in the litigation; (3) the trial court failed to adequately specify the basis for the sanctions awarded; (4) the trial court erred in granting sanctions against the Parents and the Attorneys for filing the lawsuit; (5) the trial court erred in failing to explain the reasons for sanctioning the Parents; (6) the sanctions awarded were excessive; (7) the FBISD Defendants, Judicial Defendants, and Dobbs are not entitled to recover appellate attorney's fees; (8) the trial court erred in denying the Parents' TCPA motion; (9) the trial court erred in granting the Judicial Defendants' TCPA motion; (10) the trial court erred in granting the FBISD Defendants' and Fort Bend County Defendants' pleas to the jurisdiction; (11) the trial court erred in granting the Judicial Defendants' and Dobbs' Rule 91a motions; and (12) the trial court erred in denying class certification. Judge Wise finds that: a. Assuming for purposes of argument that the August 26 notice of appeal initiated a stay, the Parents' failure to complain about the trial court's action in rendering a final judgment during the stay waived any error related to the stay. He therefore overrules the Parents' and the Attorneys' first issue. b. Judge Elliott has no direct pecuniary interest because appellants seek no money damages. Moreover, that Judge Elliott is involved in related litigation with appellants in the severed case does not require his disqualification. Because the Parents have failed to allege or present any evidence that Judge Elliott must be disqualified, he overrules their second issue. c. The Judge agrees with the Paulsen v. Yarrell court's reasoning and similarly holds that a TCPA motion to dismiss is not a "legal action" under section 27.001(6) and, accordingly, the TCPA does not authorize the Parents' counter-TCPA motion in response to the Judicial Defendants' TCPA motion to dismiss. He overrules the Parents' eighth issue. d. In the trial court, the Appellants filed no response to the Judicial Defendants' motion to dismiss, only the improper counter-TCPA motion, which does not address the Parents' statutory burden at all. The Parents' bare, baseless opinions are not a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA. Consequently, the trial court was required to dismiss the Parents' claims against the Judicial Defendants and Dobbs. The Judge overrules the Parents' ninth issue. e. The Parents' request for declaratory and prospective injunctive relief concerning alleged ultra vires acts and violations of due process are moot and the trial court did not err by granting the FBISD Defendants' and the Fort Bend County Defendants' pleas to the jurisdiction. He overrules the Parents' tenth issue. f. The Parents have failed to allege any statutory duty that Dobbs violated or any specific unconstitutional act by Dobbs in his official capacity that, if taken as true, would entitle them to the relief they seek. Therefore, the Parents' claims against Dobbs have no basis in law or fact and the trial court did not err by granting Dobbs's Rule 91a motion to dismiss the Parents' claims against him. The Judge overrules the Parents' eleventh issue. g. Given that the Court has affirmed the trial court's holdings dismissing all of the Parents' claims, Judge Wise holds that the trial court did not err by denying the Parents' motion for class certification after dismissing all of the Parents' claims. He overrules the Parents' twelfth issue. h. Because the Parents and the Attorneys failed to raise their specificity complaint in the trial court, the Judge concludes that they have failed to preserve this issue for review. He overrules the Parents and the Attorneys' third issue. i. The evidence that supports an award of sanctions to the Judicial Defendants and Dobbs, supports the trial court's findings that the Parents' lawsuit was presented for an improper purpose, was not warranted by the law, and lacked evidentiary support, and that the Attorneys did not make a reasonable inquiry into the contentions and allegations made in the lawsuit. Therefore, the trial court did not abuse its discretion by imposing sanctions, attorney's fees, and costs under Chapter 10 against the Parents and the Attorneys. He overrules issue four as to the Judicial Defendants and Dobbs. j. Because some evidence supports the trial court's finding that sanctions were warranted against the Parents as well as the Attorneys, the Judge cannot say that the trial court abused its discretion imposing sanctions against the Parents under Chapter 10. k. The trial court did not err in awarding the additional sanctions against Harrington. Moreover, the additional sanctions are less than or roughly equal to the attorney's fees incurred, and thus are no more severe than necessary to satisfy their legitimate purposes. The Parents and the Attorneys' sixth issue is overruled. l. The complaint is waived by the Parents and the Attorneys' failure to adequately brief any argument in support of their claim that the FBISD Defendants, the Judicial Defendants, and Dobbs are not entitled to recover the conditional appellate attorney's fees awarded in the event of an appeal to the court of appeals because the judgment does not order any person to pay the fees. He overrules the seventh issue. Having overruled the Parents' and the Attorney's issues, Judge Wise affirmed the trial court's judgment. A full-text copy of the Court's June 5, 2018 Opinion is available at https://is.gd/97lbxG from Leagle.com. Derek Shane Hollingsworth -- dhollingsworth@rustyhardin.com -- Jennifer Brevorka -- jbrevorka@rustyhardin.com -- Rusty Hardin -- rustyhardin@rustyhardin.com -- for Heather Ingram, Et Al., Appellee. Susan H. Soto, Carole Stewart Anhalt, Deron R. Harrington -- deron@deronharrington.com -- J.W. Beverly -- jb@fbfk.law -- for Verakisha Roach, Et Al., Appellant. FULTON CTY, ATLANTA: Property Owners Sue Over Excessive Taxes ------------------------------------------------------------- Adam Rice and Devika Kumar, Suing On Behalf of themselves And Similarly-Situated Fulton County Taxpayers, Plaintiffs, V. Fulton County, the City of Atlanta, the City of Alpharetta, the City of Johns Creek, the City of Milton, the City of Mountain Park, the City of Roswell,the City of Sandysprings, the City of Chattahoochee Hills Country, the City of College Park, the City of East Point, the City of Fairburn, the City of Hapeville, the City of Palmetto, the City of Union City and the City of South Fulton, Defendants, Case No. 18-cv-305307, (Ga. Sup., May 17, 2018), seeks a refund of all taxes paid in 2016 and 2017 which were billed and collected based on illegal, erroneous and void assessments, plus pre-judgment interest, attorney's fees and costs of litigation associated with this action and all other and further relief pursuant to the Official Code of Georgia Annotated. Defendants are political subdivisions of the State of Georgia. Plaintiffs are all persons and entities who purchased property in Georgia and whose property was assessed in 2016 and 2017 for ad valorem property tax purposes at the amount of the 2015 sales price, or who purchased property in 2016, and whose property was assessed in 2017 for ad valorem property tax purposes at the amount of the 2016 sales price. [BN] Plaintiff is represented by: G. Roger Land, Esq. Mitchell Graham, Esq. G. Roger Land & Associates 200 One North Parkway Square 4200 Northside Parkway, N.W. Atlanta, GA 30327-3054 Tel: (404) 237-2500 Fax: (404) 365-6560 Email: grlaw@lawnet.org mitchell@lawnet.org GENERAL MOTORS: Court OKs FAC Filing in Defeat Device Suit ---------------------------------------------------------- In the case, JASON COUNTS, et al, Plaintiffs, v. GENERAL MOTORS, LLC, Defendant, Case No. 16-cv-12541 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, granted the Plaintiffs' motion for leave to file a first amended complaint. On June 7, 2016, nine Plaintiffs, including first-named Plaintiff Counts, filed a 442-page complaint framing a putative class- action and alleging deceptive advertising, breach of contract, and fraudulent concealment claims under the laws of 30 states against GM. Fundamentally, the Plaintiffs allege that GM installed a "defeat device" in the 2014 Chevrolet Cruze Diesel which results in significantly higher emissions when the vehicle is in use compared to when it is being tested in laboratory conditions. GM filed a motion to dismiss on Oct. 3, 2016, which was granted in part and denied in part. After the motion was denied in part, the Plaintiffs' counsel initiated another suit involving similar allegations but different diesel vehicles and naming GM as a Defendant, In re Duramax Litigation, Case No. 17-cv-11661. That complaint also named Bosch, a German company, as a Defendant and alleged that certain electronic devices supplied by Bosch to GM enabled the defeat devices. Counts has been in discovery since GM's motion to dismiss was denied in part. The original scheduling order set discovery to end on Nov. 21, 2017, and set the dispositive motion deadline for Dec. 21, 2017. Several months later, the parties filed competing motions to amend the scheduling order. On Sept. 26, 2017, the Court issued an order granting in part GM's motion to modify the scheduling order and denying the Plaintiffs' motion to modify the scheduling order. Pursuant to that order, the discovery deadline was extended to March 30, 2018, and the dispositive motion deadline was reset for June 11, 2018. On Nov. 3, 2017, the Plaintiffs filed a motion to compel and for court-supervised discovery milestones. The motion was referred to Magistrate Judge Morris. On Dec. 11, 2017, the Plaintiffs partially withdrew their motion to compel. In the notice, the Plaintiffs explained that the parties have agreed to (1) the use of search terms in lieu of Technology Assisted Review, (2) a stipulated set of interim deadlines for the production of documents responsive to Plaintiffs' First Requests for Production, and (3) a stipulated request to extend the discovery deadlines. The next day, Magistrate Judge Morris granted in part the motion to compel, outlining the relevant scope of the documents GM must produce. One week later, the Court adopted a proposed stipulated order which extended the discovery deadline to July 31, 2018, and set the dispositive motion cutoff for Oct. 11, 2018. In that stipulation, the parties outlined their agreement for GM to begin a rolling production of documents on either (1) Jan. 17, 2018, or 30 days after the Court issued an order resolving search term disputes and completing production on Feb. 28, 2018, or 75 days after the Court issued an order resolving search term disputes. On Feb. 20, 2018, the Court issued an order denying motions to dismiss by GM and Bosch in the Duramax litigation. In that order, the Court concluded that the Plaintiffs had plausibly stated a Racketeering Influenced and Corrupt Organizations Act claim against both GM and Bosch. On Feb. 23, 2018, the Plaintiffs filed a second motion to compel production of documents in Counts. This motion was also referred to Magistrate Judge Morris. In that motion, the Plaintiffs alleged that despite agreeing to begin document production on a rolling basis, no additional documents have been produced since November 2017. The delay in production appears to have stemmed from disputes between the parties regarding the proper search terms to use in identifying relevant electronic discovery. On April 6, 2018, before the second motion was resolved, the Plaintiffs filed the present motion for leave to file an amended complaint. A week later, Judge Morris issued an order granting in part and denying in part the second motion to compel. On May 9, 2018, the Court adopted a proposed stipulated order which extended the discovery deadline to Nov. 30, 2018, and reset the dispositive motion deadline for Feb. 1, 2019. In the stipulation, the parties agreed that the total volume of documents produced by GM to date has exceeded 70,000 documents, and GM's production is ongoing. In a declaration attached to the motion for leave to file an amended complaint, one of the Plaintiffs' attorneys indicates that GM produced an additional 130,000 pages of documents on March 7, 2017. In the Plaintiffs' proposed first amended complaint, they seek to add Robert Bosch GmbH and Robert Bosch, LLC as the Defendants, add a RICO claim against all the three Defendants, and add Bosch as the Defendants to the Plaintiffs' state law claims. In opposing this motion, GM makes three arguments. First, GM argues that the Plaintiffs have had actual or constructive notice of Bosch's involvement with GM's diesel vehicle production since at least the filing of the complaint in the Duramax litigation. Second, GM believes that the Plaintiffs' true motivation behind seeking leave to amend is the Court's denial of GM's (and Bosch's) motion to dismiss a similar RICO claim in the Duramax litigation. GM argues that this "wait-and- see" approach is disfavored by courts and should not be rewarded. Third, GM argues that allowing the amendment will substantially prejudice GM by substantially delaying the resolution of the litigation and dramatically altering the "landscape of the litigation." Presently, GM does not oppose amendment on futility grounds (but GM indicates that it may move to dismiss if the Plaintiffs' motion is granted). Judge Ludington finds that given the scope of discovery and the relevance of certain of the new allegations, the Plaintiffs have not unduly delayed in seeking to amend. He also finds that this is not a scenario where the Plaintiffs have sought to allege an alternative theory or claim after their original approach was rebuffed, creating unnecessary costs and inefficiencies. In fact, a reasonable argument can be made that the timeline here obviated the unnecessary expenditure of resources. Ultimately, the Judge finds that the prejudice identified by GM is insufficient to overcome the general rule that leave to amend should be liberally granted. The Plaintiffs commonly uncover additional information during discovery which provides the basis for new claims. In that situation, the Defendants will inevitably suffer some prejudice as the scope of litigation expands. But much of that prejudice is inherent in the nature of litigation, especially when the subject matter is as complex and quickly evolving as defeat device cases have proven to be. The Judge is unpersuaded that the addition of a RICO claim is as earth-shattering as GM suggests. The RICO claim will certainly increase GM's potential liability, but the underlying factual theory is essentially the same as with Plaintiff's state law consumer fraud claims. Especially because there are cogent reasons why the claim was not brought in the original complaint, the addition of the RICO claim will not substantially prejudice GM. The federal rules contemplate a general policy in favor of granting leave to amend, and so the Plaintiffs' motion will be granted. For these reasons, Judge Ludington granted the Plaintiffs' motion for leave to file a first amended complaint. He directed the Plaintiffs to file the first amended complaint on June 15, 2018. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/jiuYmN from Leagle.com. Jason Counts, Donald Klein, Oscar Zamora, Brandon Stone, Jason Silveus, John Miskelly, Thomas Hayduk, Joshua Hurst & Joshua Rodriguez, Plaintiffs, represented by Christopher A. Seeger , Seeger Weiss LLP, James E. Cecchi -- JCecchi@carellabyrne.com -- Carella Byrne, Jessica M. Thompson -- jessicat@hbsslaw.com -- Hagen Berman Sobol Shapiro LLP, Scott A. George -- intake@seegerweiss.com -- Seeger Weiss LLP, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz, P.C. General Motors, LLC, Defendant, represented by April N. Ross -- aross@crowell.com -- Corwell & Moring LLP, Brittany J. Mouzourakis -- BMouzourakis@dykema.com -- Dykema, Katherine W. Warner -- kate.warner@kirkland.com -- Kirkland & Ellis, LLP, Kathleen T. Sooy -- ksooy@crowell.com -- Crowell & Moring LLP, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis, Michael P. Cooney -- mcooney@dykema.com -- Dykema Gossett, Rebecca Baden Chaney -- rchaney@crowell.com -- Crowell & Moring LLP & Renee D. Smith -- renee.smith@kirkland.com -- Kirkland & Ellis, LLP. GOGO INC: Kahn Swick Files Securities Class Suit ------------------------------------------------ Kahn Swick & Foti, LLC and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until August 27, 2018 to file lead plaintiff applications in a securities class action lawsuit against Gogo Inc. (NasdaqGS:GOGO), if they purchased the Company's securities between February 27, 2017 and May 7, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the Northern District of Illinois. What You May Do If you purchased securities of Gogo and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/nasdaqgs-gogo/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by August 27, 2018. About the Lawsuit Gogo and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On May 4, 2018, the Company disclosed disappointing quarterly earnings results including that it would be unable to meet EBITDA profit guidance of $75M-$100M, was withdrawing "its previously provided 2018 guidance for Adjusted EBITDA, airborne Cash CAPEX, and airborne equipment inventory purchases related to airline- directed installations, as well as Free Cash Flow guidance." Then, on May 7, 2018, post-market, Moody's announced a downgrade to the Company's credit rating. On this news, the price of Gogo's shares plummeted. Lewis Kahn,Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Telephone: 1-877-515-1850 Email: lewis.kahn@ksfcounsel.com [GN] HEALTHPORT TECHNOLOGIES: Class Action Removed to Federal Court -------------------------------------------------------------- Sam Knef, writing for St. Louis Record, reports that HealthPort Technologies and Centerpoint Medical Center of Independence recently removed a proposed class action lawsuit that alleges they wrongfully charge fees in violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to the U.S. District Court for the Western District of Missouri, Western Division. According to a removal notice filed June 22, lead plaintiff Jeffrey Bowden claims that the defendants charged the fees in response to a request made by Bowden' attorneys for medical records at Centerpoint and that the rates charged are not in compliance with HIPAA or with a recent guidance distributed by the U.S. Department of Health and Human Services. The case was originally filed in Jackson County Circuit Court on May 15 claiming unjust enrichment, fraud, negligent misrepresentation and violations of the Missouri Merchandising Practice Act. Bowden's suit seeks to represent two nationwide class of individuals -- "All persons in Missouri whose PHI (personal health information) was maintained in electronic format, who requested their PHI in electronic format, who were provided an electronic copy of their PHI, and who paid an invoice exceeding six dollars and fifty cents ($6.50) from Defendants (or anyone working on behalf of Defendants) at any time in the last five (5) years)"; and "All persons in Missouri who requested their PHI in electronic format, regardless of whether or not the PHI was stored in electronic format; who were provided a copy of their PHI; and who paid an invoice exceeding six dollars and fifty cents ($6.50) from Defendants (or anyone working on behalf of Defendants) when Defendants, prior to producing the PHI, did not inform them of any additional charges, at any time in the last five (5) years." Defendants claim that, among other things, federal court has jurisdiction under the Class Action Fairness Act (CAFA). Thee claim that they "vigorously dispute the validity of Bowden's claims" and deny that this case is appropriate for class treatment. But, for the purposes of determining whether federal jurisdiction exists under CAFA, the aggregate amount in controversy exceeds $5 million based upon the allegations in the complaint, one of the requirements for federal jurisdiction under CAFA.[GN] HENKEL CORP: Wins Judgment on Pleadings in Slack-Fill Suit ---------------------------------------------------------- The United States District Court for the Southern District of California granted Defendant's Motion for Judgment of the Pleadings in the case captioned CLAUDINE MACASPAC, individually, and on behalf of all others similarly situated and the general public, Plaintiff, v. HENKEL CORPORATION, a Delaware corporation, Defendant, Case No. 3:17-cv-01755-H-BLM (S.D. Cal.). Plaintiff Claudine Macaspac (Macaspac) filed a class action complaint against Defendant Henkel Corporation (Henkel) in the San Diego County Superior Court, asserting claims for violations of California's Consumer Legal Remedies Act, Unfair Competition Law, Cal. Bus. & Prof. Code and False Advertising Law, Cal. Bus. & Prof. Code. Macaspac alleges that she expected to receive a full container of the Purex Crystals product, which is packaged in non-transparent containers, but "was surprised and disappointed when she opened the Purex Crystals product to discover that the container had more than 30% empty space, or slack-fill." Macaspac filed a motion for class certification. One day later, Henkel responded by moving for judgment on the pleadings. Federal Rule of Civil Procedure 12(c) permits a district court to terminate a lawsuit where the facts alleged in the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. Henkel argues that it is entitled to judgment on the pleadings because no reasonable consumer could have been deceived by the Purex packaging, and Macaspac lacks standing to either bring claims predicated on products that she did not purchase, or to sue for injunctive relief. Macaspac rejoins that a reasonable consumer could have been deceived by the size of the Purex bottles into believing that they contained more product that they did, and also disputes Henkel's arguments about her legal standing to bring claims related to all of Henkel's allegedly deceptive products. Reasonable Consumer Test Under the reasonable consumer standard, a plaintiff must show that members of the public are likely to be deceived. Likely to deceive' implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Application to Macaspac's Claims Henkel argues that Macaspac cannot maintain a UCL claim predicated on a Section 12606(b) violation because the Purex bottles permit consumers to fully view the bottles' contents. After reviewing the parties' submissions, the Court agrees with Henkel that no reasonable consumer could be deceived as to the amount of product contained in the Purex bottles. The parties attached several photographs of the Purex bottles Macaspac purchased to their respective requests for judicial notice. Although the bottles depicted in the photographs differ somewhat, each bottle is a cylinder that contains a roughly 1-2 inch transparent band along the lower part of the bottle's exterior, and each bottle's bottom is fully transparent. Using the transparent band and bottom, a consumer can fully see the bottle's contents, including the slack fill inside, by turning the bottle on its side and looking in through the bottom. Moreover, a consumer can also view the bottles' contents by opening the lid without altering the packaging or damaging the product. Second, no reasonable consumer could find the Purex bottles deceptive. No reasonable consumer expects the overall size of the packaging to reflect precisely the quantity of product contained therein. Here, the Purex bottles allowed consumers to see their contents either by looking through the transparent bottom or unscrewing the lid, and also accurately reported the weight of the crystals inside. Reasonable consumers would know roughly how much product they were receiving when purchasing these bottles. Because the bottles themselves make it impossible for Macaspac to prove that a reasonable consumer was likely to be deceived, Henkel is entitled to judgment as a matter of law on Macaspac's UCL, FAL, and CLRA claims. The Court grants Henkel's motion for judgment on the pleadings, denies Macaspac's motion for class certification as moot. A full-text copy of the District Court's June 4, 2018 Order is available at https://tinyurl.com/y8dmrmad from Leagle.com. Claudine Macaspac, on behalf of herself, all others similarly situated, and the general public, Plaintiff, represented by Michael Houchin -- mike@consumersadvocates.com -- Law Offices of Ronald A. Marron & Ronald Marron -- ron@consumersadvocates.com -- Law Office of Ronald Marron. Henkel Corporation, a Delaware corporation, Defendant, represented by William F. Tarantino -- wtarantino@mofo.com -- Morrison and Foerster, Ashleigh K. Landis -- alandis@mofo.com - Morrison & Foerster LLP & Kai S. Bartolomeo -- kbartolomeo@mofo.com -- Morrison Foerster LLP. HIGHPOINT SOLUTIONS: Court Grants Bid to Dismiss "Moore" Suit ------------------------------------------------------------- Judge Joseph H. Rodriguez of the U.S. District Court for the district of New Jersey granted the Defendant's motion to dismiss the case, JACLYN MOORE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. HIGHPOINT SOLUTIONS LLC and CHRISTINE M. CUSHMAN, Defendants, Civil Action No. 17-6266 (D. N.J.). Moore, a HighPoint contract employee since April 2017, has filed a purported Class Action Complaint as the result of a data breach by Defendant Cushman, who was HighPoint's Human Resource Director. On Aug. 7, 2017, the Montgomery County, Pennsylvania District Attorney's office and certain news outlets announced that Cushman had stolen approximately $1 million from HighPoint over a two- year period using private financial information HighPoint maintained concerning subcontractors. Specifically, from May 5, 2015 to June 15, 2017, Cushman used this stolen information to issue herself 45 fraudulent checks totaling $919,301. On Aug. 8, 2017, HighPoint's CEO John Seitz emailed HighPoint's employees concerning Cushman's actions. Seitz e-mailed HighPoint's employees again on Aug. 10, 2017. As a result of the data breach, the Plaintiff has alleged that the Defendants negligently failed to secure and safeguard her personal identifying information ("PII"), and that of, at least, all of HighPoint's past and current employees, agents, subcontractors, customers and service providers, as well as their families and dependents. This PII includes, but is not limited to, the: names, Social Security numbers, Taxpayer Identification Numbers, birthdates, addresses, telephone numbers, email addresses, healthcare records, salary and bonus details, contract and agreement details, sensitive employment information such as performance evaluations, disciplinary and employment termination details, severance packages, and/or other personal information concerning HighPoint's past and current employees, agents, subcontractors, customers and service providers, as well as their families and dependents. HighPoint was also negligent in failing to provide timely and adequate notice to the Plaintiff and the Class that their PII had been stolen and precisely what types of information were stolen. Against HighPoint, the Complaint alleges negligence, intrusion upon seclusion, breach of fiduciary duty, breach of contract, breach of implied contract, violation of the New Jersey Computer Related Offenses Act, and vicarious liability. There is an additional claim for unjust enrichment against Cushman. HighPoint seeks dismissal of the Complaint. The Plaintiff has conceded through briefing that her claims for breach of contract and breach of implied contract cannot survive and are voluntarily dismissed. Accordingly, the remaining claims are for negligence and breach of fiduciary duty, intrusion upon seclusion, violation of the New Jersey Computer Related Offenses Act, and vicarious liability. The Court has considered the submissions of the parties and heard oral argument on May 30, 2018. Judge Rodriguez finds that the Plaintiff has failed to allege facts demonstrating that she has sustained a concrete injury in fact. Any allegation of an increased risk of identity theft is speculative and conclusory. The Plaintiff has pled no facts to indicate that her personal identifying information was even accessed by Cushman, but more importantly, the Plaintiff has failed to allege actual misuse of her personal identifying information. Other courts in this District have held that plaintiffs who similarly alleged that personal information was lost or compromised, without asserting misuse, lacked standing to bring claims following data breaches. For the reasons he stated, and those discussed on the record during oral argument, Judge Rodriguez granted the Defendant's motion to dismiss for lack of standing. An appropriate Order will issue. A full-text copy of the Court's June 5, 2018 Opinion is available at https://is.gd/wJCiwR from Leagle.com. JACLYN MOORE, Individually and on behalf of all others similarly situated, Plaintiff, represented by JAMES M. FICARO -- jmf@weiserlawfirm.com -- THE WEISER LAW FIRM, P.C. HIGHPOINT SOLUTIONS, LLC, Defendant, represented by JOEL M. WERTMAN -- Wertman.J@wssllp.com -- Winget, Spadafora & Schwartzberg LLP & ALLISON JUDITH BEATTY -- Beatty.A@wssllp.com - - Winget, Spadafora & Schwartzberg LLP. INSTITUTIONAL MULTIFAMILY: Kadir Sues over Tenants Excessive Fees ----------------------------------------------------------------- ADIB KADIR, individually, and on behalf of all others similarly situated, the Plaintiff, v. INSTITUTIONAL MULTIFAMILY PARTNERS LLC dba RENAISSANCE TOWER, and DOES 1-10, inclusive, the Defendants, Case No. BC 714155 (Cal. Super. Ct., July 13, 2018), alleges that Defendant charged tenants excessive and unjustified fees, to withhold the renters rightfully belonging security deposit and failure to provide accurate itemized receipts for the repairs completed, pursuant to California law. According to the complaint, on or around, March 2016, the Plaintiff and Defendant entered into a rental-home lease agreement. The Plaintiff paid a total of $500.00 as security, deposit, under the Lease, in order to rent the Premises. On or around November 16, 2017, Plaintiff received a letter from Defendant containing an invoice for $388.85 for the repairs conducted, encompassing the replacement of the carpet and the cleaning of the Premises, after Plaintiff surrendered the Premises to Defendant Plaintiff is informed and believes, therein alleges that Plaintiff requested Defendant to provide the receipts and/or invoices for the repairs done to the Premises, however Defendant failed to provide such receipts and/or invoices to Plaintiff.[BN] Attorneys for Plaintiff: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 9167 Telephone: (877) 206 4741 Facsimile: (866) 633 0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com INTERNATIONAL DAIRY: Sued over Bait-and-Switch Ice Cream Treat -------------------------------------------------------------- MARIEL SPENCER, individually and on behalf of other customers, the Plaintiff, v. INTERNATIONAL DAIRY QUEEN, INC., the Defendant, Case No. 3:18-cv-01252-SB (D. Ore., July 13, 2018), alleges that Defendant lured thousands of Dairy Queen mobile app customers into a Dairy Queen based solely on the false promise of a free, delicious Blizzard ice cream treat. The lawsuit contends that Ms. Spencer and other mobile app customers ripped off by Dairy Queen's bait-and-switch scheme are entitled to a gift card for at least five free Blizzards per person. Dairy Queen is a billion-dollar subsidiary corporation of Warren Buffett's Berkshire Hathaway Inc. Dairy Queen understands that the fast-food industry involves tight profit margins and high sales volumes. Dairy Queen understands that it's profitable to generate traffic to its locations based on the promise of a free Blizzard, regardless of whether its locations intend to honor its promise. Dairy Queen understands that the law does not permit it to bait-and-switch its customers but continues to do so anyway, even after receiving hundreds of customer complaints through its mobile app. International Dairy Queen, Inc. owns and operates restaurants. The Company offers grilled chicken, cheese burgers, sides, salads, meal baskets, fries, onion rings, and other food products.[BN] The Plaintiff is represented by: Michael Fuller, Esq. OLSENDAINES US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204 Direct (503) 743 7000 E-mail: michael@underdoglawyer.com - and - Kelly D. Jones, Esq. THE LAW OFFICE OF KELLY JONES - and - Mark Geragos, Esq. Ben Meiselas, Esq. Lori Feldman, Esq. GERAGOS & GERAGOS 7 W 24th Street New York, NY 10010 Tel: 213-625-3900 Fax: 213-232-3255 IRVING LANGER: Court Narrows Claims in "Contrera" FLSA Suit ----------------------------------------------------------- The United States District Court for Southern District of New York granted in part and denied in part Plaintiffs' Motion to Amend Complaint in the case captioned USVALDO CONTRERA et al., Plaintiffs, v. IRVING LANGER et al., Defendants, No. 16 Civ. 3851 (LTS) (GWG)(S.D.N.Y.). The Plaintiffs, former superintendents, handymen, and a porter at residential buildings in Upper Manhattan and the Bronx filed this action against various individuals and entities that plaintiffs collectively refer to as the E&M Enterprise alleging that this enterprise employed them and it violated the Fair Labor Standards Act (FLSA) and various provisions of the New York Labor Law. In their proposed Second Amended Complaint, the plaintiffs seek to add a claim to recover the full amount of wages that the defendants purportedly agreed to pay the plaintiffs on an hourly basis pursuant to section 198(3) of the New York labor Law. The Court says it is aware that some courts have found that section 198 allows for an employee to recover damages for a claim of straight time at a rate higher than the minimum wage if the parties previously agreed to the rate. The Court disagrees with these cases, however. None of these cases conduct an analysis of the structure of Article 6 and the statutory language in section 198. Almost all of the cases arose in the context of default judgments, where there was presumably no adversarial briefing on the issue. Only two of these cases mention Gottlieb, and even then only to recognize that it is contrary to the conclusion those courts reached without attempting to distinguish it. In light of our own analysis of the statutory provisions and the existence of persuasive case law supporting our analysis, the Court cannot agree with the conclusion reached in these cases. Accordingly, the Court deny plaintiffs leave to amend their complaint to add an agreed upon wages claim under section 198(3) because such an amendment would be futile. The Plaintiffs also seek leave to amend their complaint to add a breach of contract claim based on the defendants' alleged failure to pay for all hours worked including both regular time and overtime. The Defendants argue this amendment would be futile because (1) the breach of contract claim duplicates other claims already made under the FLSA and New York Labor Law; (2) plaintiffs' proposed Second Amended Complaint fails to adequately plead a cause of action for breach of contract; and (3) plaintiffs' breach of contract claim would not be susceptible to class certification. The Court rules that the Plaintiffs' breach of contract claim for overtime wages is pre-empted by the FLSA. The Plaintiffs have failed to indicate any manner in which their claim for agreed upon" overtime wages will differ from their claim for overtime wages under the FLSA. Thus, as case law has recognized, the plaintiffs' breach of contract claim for overtime must be dismissed as preempted by the FLSA's provision allowing pursuit of overtime claims. The Plaintiffs argue that notwithstanding pre-emption, they may nevertheless plead their breach of contract claim for overtime wages in the alternative at this stage in the proceeding. However, it is well-established that preemption may be analyzed and decided at the motion to dismiss stage. In sum, the Court find that the plaintiffs' breach of contract claim is pre-empted to the extent that it seeks overtime wages, but not with respect to straight time wages. A full-text copy of the District Court's June 4, 2018 Opinion and Order is available at https://tinyurl.com/y83yywrb from Leagle.com. Usvaldo Contrera, Francisco Lopez, Pedro Batista, Fabian Herrera, Antonio Reyes, Ramon Medina, Anibal Ruiz, Carlos Zambrano, Jose Castillo & Doyle Gross, Plaintiffs, represented by Peter David Winebrake, The Winebrake Law Firm, LLC, Meredith Reade Miller, Miller Law, PLLC & Marc Andrew Rapaport, Rapaport Law Firm, PLLC. Carlos Dominguez, Danny Cruz-Guerrero, Hector Gracia, Ygnacio Mercado, Amanuel Avila, Maurice Merritt, Rafael Parra Hiclalgo, Wilfredo Perez, Hector R Rodriguez, James Mills, Sixto Rosario Cruz, Franklyn Brito, Jesus Robles, Bryan Garriques, Douil Jackson, Michael Smith, Generoso Saint Hilarie, Billy Rojas, Jose Arrieta, Teddie Emmanuel, Lambert Samuel, Leonardo R Mejia, Michael Simon, Curtis Brown, Keith Richards, Robert Joseph, Nelson V Castillos, Charles Martin, James Carter, Jose A Nieves, Aisy Alfredo Montero Marte, Maxwell Redhead, Vassel A Burke, Euclides Hilario, Anthony Watson, Orlando Velez, Frank Johnson, Sherman Martin, Jose A Filpo, Jose H. Rodriguez, Maximo Reyes, Ramon Abel Mora, Juan Tapia, Yowel Castillo, Luis N Garcia, Juan A Garcia, Cruz De La Rosa Genao, Jose Chavarria, Lucien Wellington, Sandy Taveras, Omar Nunez, Jose A. Saa-Tolozano, Erol McLean, Gustavo Del Rosario Gomez, Alfonso Trujillo, Francisco Gonzalez, Newton Marks, Bolivar Albarracin & Jose D Taveras, Plaintiffs, represented by Marc Andrew Rapaport, Rapaport Law Firm, PLLC. Irving Langer, Leibel Lederman, Aryeh Z. Ginzberg, Meyer Brecher, E&M Bronx Associates LLC, also known as E&M Holdings, also known as E&M Associates, E&M Associates LLC, E&M Harlem Holdings LLC, E&M Harlem Equities LLC, E&M Lafayette Portfolio LLC, E&M Lafayette Owner LLC, Rainbow Estates LLC, Manhattanville Holdings LLC, Galil Realty LLC, Galil Management LLC, 105-109 West 113 LLC, 107 West 113 LLC, 1070 Ogden LLC, 109 West 113 LLC, 11 West 172 Street Owner LLC, 110 West 116th LLC, 113-115 West 113 LLC, 115 West 113 LLC, 117-129 West 116 LLC, 120-129 West 112 LLC, 124 West 112 Street LLC, 126 West 112 LLC, 131-133 West 112 LLC, 133 West 112 Street LLC, 133-135 West 116 LLC, 141 West 116 LLC, 141- 143 West 113 LLC, 143 West 111 Street LLC, 145-153 Edgecombe Holdings LLC, 146 West 111 Street LLC, 151 West 228 St Owner LLC, 159 W 228 St Owner LLC, 161-171 Morningside LLC, 1631 Grand Ave Owner LLC, 164-172 West 141 Holdings LLC, 17-25 St Nicholas LLC, 1728-1730 Amsterdam Avenue LLC, 1786 Topping Ave Owner LLC, 1829- 1835 7 LLC, 2006 ACP Blvd Portfolio LLC, 2059 8 LLC, 2076-78 Creston Ave Owner LLC, 2238 Morris Ave Owner LLC, 226 W Tremont Ave Owner LLC, 2291 University Ave Owner LLC, 230 West 116 LLC, 2322 Grand Ave Owner LLC, 239 West 116 LLC, 241 West 113 LLC, 243 West 116 LLC, 247-253 West 116 LLC, 255 West 116 LLC, 2755-61 Sedgwick Ave Owner LLC, 2925 Grand Concourse Owner LLC, 2933 Grand Concourse Owner LLC, 2968 Perry Ave Owner LLC, 301 West 111-2051 8 LLC, 302 West 112 Street LLC, 303 West 111 LLC, 303- 309 West 113 LLC, 305 West 111 LLC, 305-309 West 113 LLC, 306-310 West 112 LLC, 307 West 113 LLC, 310 West 112th Street LLC, 311 West 111 Street LLC, 337 West 138 Holdings LLC, 345 Manhattan Holdings LLC, 35 Morningside Holdings LLC, 350 West 115 LLC, 370- 372 West 127 LLC, 373 West 126 LLC, 376 West 127 LLC, 41 W 184 St Owner LLC, 510 West 146 LLC, 521-523 W 156 St Owners LLC, 557-561 West 149 Holdings LLC, 6 Morningside LLC, 609-619 West 135 Street Owner LLC, 610-620 West 141 Holdings LLC, 617 West 143 Holdings LLC, 638 West 160 Holdings LLC, 655 West 160 Holdings LLC, 65-67 Lenox LLC, 67 Lenox LLC, 707 St Nicholas LLC, ACP Blvd Portfolio LLC, Audubon 550 W 171 Portfolio LLC, Avenue W Equities LLC, DDEH 319 E 115 LLC, E&M Associates I, LLC, Neighborhood Stabilization Associates I, L.P., Neighborhood Stabilization Associates II. L.P., NSA Associates I, NSA Associates II, Sarasota Gold LLC, Sixth Avenue I Associates, Sixth Avenue Rehab I Associates, Sunset Park Housing Associates, Sunset Park NSA I, Sunset Park N S A II, Sunset Park NSA 11, Sunset Park NSA 2, Sunset Park NSA II, 11-15 Broadway Owner LLC, 30-50 21 St Street Owner LLC, 271 E 197 St Owner LLC, 750-760 Pelham Pkwy Owner LLC, 124 E 177 ST Owner LLC, 3472 Knox Place Owner LLC, 2320 Aqueduct Ave Owner LLC, 1160 Cromwell Ave Owner LLC, 3940 Bronx Blvd Owner LLC, 1881 Grand Concourse Realty LLC, 3136 Perry Ave Owner LLC, 155 W 162 Street LLC, 1014 Gerard Ave Owner LLC, 1475 Sheridan Ave Owner LLC, 320 E 197 St Owner LLC, 131 W Kingsbridge Owner LLC, 2701 Webb Ave Owner LLC, 751 Gerard Ave Owner LLC, 2055 Anthony Ave Owner LLC, 975 Walton Ave Owner LLC, 1212 Grand Concourse Owner LLC, 1530 Sheridan Ave Owner LLC, 323 E Mosholu Pkwy Owner LLC, 161-165 E 179 St Owner LLC, 2215 Properties LLC, DDEH 103 E 102 LLC, DDEH 112 E 103 LLC, DDEH 102 E 103 LLC, DDEH 122 E 103ST LLC, DDEH 124 E117 LLC, DDEH 126 E 103ST LLC, 124 E. 117 LLC, DDEH 137 E. 110 LLC, DDEH 154 E. 106 LLC, DDEH 1567 Lexington LLC, DDEH 238 E 111 LLC, DDEH 215 E 117 LLC, DDEH 2156 Second LLC, DDEH 216 E 118 LLC, DDEH 2171 Third LLC, DDEH 291 Pleasant LLC, DDEH 231 E 117 LLC, DDEH 233 E 111 Street LLC, DDEH 234 E 116ST LLC, DDEH 235 E 111ST LLC, DDEH 234 E116 LLC, DDEH 2371 Second LLC, DDEH 244 E 117 LLC, DDEH 311 E. 109 LLC, DDEH 312 E 106 LLC, DDEH 411 E 114 LLC, DDEH 411 E118LLC, DDEH 417E 114ST LLC, DDEH 421 East 114th ST LLC, 131-133 West 112 Street LLC, 3030 Valentine Ave Owner LLC, 138-140 West 112 LLC, 3600 Broadway Owner LLC, Dunbar Owner LLC, E&M Harlem Portfolio Owner LLC, SG2- E&M Harlem Portfolio Owner LLC, 3621 Broadway Owner LLC, 414-102 Convent Owner LLC, 153-157 Lenox Holdings LLC & Manhattanville Mezz LLC, Defendants, represented by Larry Rafael Martinez -- lmartinez@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Christopher Paul Hampton -- champton@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Gerald Charles Waters -- gwaters@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Jonathan D. Farrell -- jfarrell@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP & Loretta Mae Gastwirth -- lgastwirth@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP. 300 West 114-2107 8 LLC, Defendant, pro se. Manhattan Valley West LLC, Defendant, pro se. 260 Elizabeth Street LLC, Defendant, pro se. 262 Elizabeth Portfolio LLC, Defendant, pro se. 264 Elizabeth Street Portfolio LLC, Defendant, pro se. 266 Elizabeth Street Portfolio LLC, Defendant, pro se. 268 Elizabeth Street Portfolio LLC, Defendant, pro se. Fabian Herrera, Antonio Reyes, Jose Tavera & Juan Manuel Tapia, ADR Providers, represented by Marc Andrew Rapaport, Rapaport Law Firm, PLLC. Pedro Batista, All Plaintiffs, represented by Peter David Winebrake, The Winebrake Law Firm, LLC & Marc Andrew Rapaport, Rapaport Law Firm, PLLC. JOHNSON & JOHNSON: "Salazar" Suit Moved C.D. California ------------------------------------------------------- The class action lawsuit titled Andrea Salazar, Christina Johnson, Jose Garcia, Troy Harris, and Bediako Addo, individuals, on behalf of themselves and on behalf of all persons similarly situated, the Plaintiffs, v. Johnson and Johnson Consumer Inc., a Corporation; and Does 1 through 50, Inclusive, the Defendants, Case No. BC702468, was removed from the U.S. District Court for the Los Angeles County Superior Court, to the U.S. District Court for the Central District of California (Western Division - Los Angeles) on July 5, 2018. The District Court Clerk assigned Case No. 2:18-cv-05884-RSWL-E to the proceeding. The case is assigned to the Hon. Judge Ronald S.W. Lew. Johnson & Johnson produces and markets over-the-counter (OTC) products to families, children, healthcare professionals, and other consumers in the United States and internationally.[BN] Attorneys for Plaintiffs: Aparajit Bhowmik, Esq. Kyle R Nordrehaug, Esq. Norman B Blumenthal, Esq. Ruchira Piya Mukherjee, Esq. Victoria Bree Rivapalacio, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551 1223 Facsimile: (858) 551 1232 E-mail: aj@bamlawca.com Kyle@bamlawca.com norm@bamlawca.com piya@bamlawca.com victoria@bamlawca.com Attorneys for Johnson and Johnson Consumer Inc.: Kevin Dennis Sullivan, Esq. Michael S Kun, Esq. EPSTEIN BECKER AND GREEN PC 1925 Century Park East Suite 500 Los Angeles, CA 90067 Telephone: (310) 556 8861 Facsimile: (310) 553 2165 E-mail: ksullivan@ebglaw.com mkun@ebglaw.com JONATHAN NEIL: Court Denies Prelim Approval of "Brown" Settlement ----------------------------------------------------------------- In the case, TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant, Case No. 1:17-cv-00675-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California denied the parties' joint motion for preliminary approval of the class action settlement. At some time, the Plaintiff incurred an obligation to Mercury Insurance Co. Mercury Insurance contracted with the Defendant to collect the debt. Around March 14, 2017, the Defendant sent the Plaintiff a collection letter regarding the debt owed to Mercury Casualty Insurance Co. The Plaintiff received and read the letter which stated "Re: Mercury Casualty Insurance." On May 16, 2017, the Plaintiff filed the action, on behalf of herself and others similarly situated, alleging that the letter failed to accurately identify the creditor in violation of the FDCPA; and California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). The Defendant filed an answer on June 22, 2017. The scheduling order issued on July 28, 2018, setting the deadline to file a motion for class certification. On Jan. 12, 2018, the Plaintiff filed a motion for class certification. The Defendant filed an opposition on Jan. 31, 2018. The Plaintiff filed a reply on Feb. 9, 2018. A hearing on the motion was held on Feb. 14, 2018, and the parties were to provide supplemental briefing to address the Court's authority to expand the class beyond that requested by the Plaintiff and additional authority on limiting the class from that proposed in the complaint filed in the action. The parties have agreed to settle the claims of a class defined as all consumers with an address in the State of California who were sent an initial collection letter and/or notices from the Defendant, during the period of May 16, 2016 to present, attempting to collect a consumer debt owed which stated Re: Mercury Casualty Insurance. The Defendant will pay $10,000 in statutory damages to the Settlement Class. The Settlement Class is comprised of 40,133 individuals. The class members will receive a pro rata share of the settlement fund, capped at $50 per claimant. All unclaimed funds will first be used to pay the class action administrative costs and if any fund remain they will be donated as a cy pres award to a charitable organization subject to the Court's approval. The Plaintiff will receive statutory damages of $1,000 and a service award of $1,500 for a total of $2,500. The class counsel will receive attorney fees of $33,500 to cover all fees and costs associated with the litigation. The Class Administrator will mail notice providing address forwarding within 20 days of preliminary approval of the settlement. If a notice is returned with a forwarding address provided the Class Administrator will forward the notice to the address provided, but there will be no skip trace to determine addresses of those notices returned as undeliverable. The class members have 45-five days after the notice is mailed to opt-in, exclude themselves from, or object to the settlement. They may be excluded from the settlement agreement by opting out within the set time-period. The Defendant will pay costs and expenses through its insurance carrier to the Class Administrator, including but not limited to, the costs of printing and mailing notice and issuing and mailing settlement checks to the class members. On March 22, 2018, a notice of settlement was filed and the motion for preliminary approval of the class action settlement was to be filed on or before May 7, 2018. On May 7, 2018, the parties filed a motion for preliminary approval of the class action settlement. On May 14, 2018, the matter was reassigned to Magistrate Judge Boone. Upon consideration of the settlement agreement as a whole, the Magistrate Judge finds that it is not fair, adequate, and reasonable. He says finds it is not fair, adequate and reasonable to require claim forms to be submitted to receive a share of the settlement fund where the identity of the class members is known and no further information is necessary to determine the amount the class member is entitled to receive under the terms of the settlement agreement. The Magistrate Judge also has concerns regarding the class notice. The claims administrator is to mail notices and re-mail notices that are returned with a forwarding address, but no skip trace is to be done to determine the address of any class member. Merely mailing a notice without any efforts to obtain an updated address is insufficient to provide notice. He finds that the settlement must provide for some manner of reasonable effort to obtain the current address of the class members, whether that be prior to mailing or only for those letters returned as undeliverable. As to the notice itself, he finds that it is misleading. The notice states that class members will receive a pro rata share of the settlement fund capped at $50. Informing the class members that they can receive up to $50 is illusory. A class member would be more likely to object or opt-out were she aware that she was only going to receive $0.25 to $5, rather than $50, for a statutory violation that would entitle her to $1,000 in damages. The Magistrate Judge finds that the agreement provides that the Defendant's insurance carrier is to pay for the costs of administrating the settlement. However, it also provides that any unclaimed settlement funds will be used first to pay the class action administration costs, and then donated to a cy pres beneficiary. He finds that the insurance carrier is not entitled to receive an offset out of the unclaimed settlement funds. In the event that any funds remain unclaimed, such funds should be donated to the cy pres beneficiary. In addition to the issue that the agreement requires the class members to submit a claim form, he also has concerns regarding the extent of the claims released. The scope of the release here appears to be designed to cast as wide a net as possible in releasing the claims of the unnamed class members rather than to only those claims brought in the current complaint. Finally, and most concerning to him, is the monetary settlement amount and payments contemplated. The concern is whether the class representative and the class counsel are representing the interests of the class or are settling the action to the detriment of the unnamed class members and not to the Plaintiff. Upon review of the proposed settlement agreement, Magistrate Judge Boone finds that it is not fair, adequate, and reasonable and therefore does not fall within the range of possible approval. Based on the foregoing, he denied without prejudice the parties' joint motion for preliminary approval of the class action settlement. The parties will notify the Court in writing within 14 days from the date of service of the Order they will continue to pursue settlement or if a scheduling conference need be set. The hearing set for June 13, 2018 is vacated and the parties need not appear at that time. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/E9M07e from Leagle.com. Teri Brown, Plaintiff, represented by Ari H. Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan -- cegan@porterscott.com -- Porter Scott, APC, Derek Joseph Haynes -- dhaynes@porterscott.com -- Porter Scott, PC & Lynette Mary Komar -- lkomar@porterscott.com - - Porter Scott. JUMPSTART CONSULTANTS: Robinson Seeks Unpaid Overtime under FLSA ---------------------------------------------------------------- CLINTON ROBINSON, on behalf of himself and all others similarly situated, the Plaintiff, v. JUMPSTART CONSULTANTS, INC., the Defendant, Case No. 3:18-cv-00487-REP (E.D. Va., July 13, 2018), seeks declaratory relief, injunctive relief, and to recover unpaid overtime compensation, and liquidated damages under the Fair Labor Standards Act. According to the complaint, the Plaintiffs are current and former employees of Jumpstart Consultants, Inc. who work and/or worked at Jumpstart on the production and printing of house and roof wrap products.[BN] The Plaintiff is represented by: Harris D. Butler, III, Esq. Zev H. Antell, Esq. Paul M. Falabella, Esq. BUTLER ROYALS, PLC 140 Virginia Street, Suite 302 Richmond, VA 23219 Telephone: (804) 648 4848 Facsimile: (804) 237 0413 E-mail: harris.butler@butlerroyals.com zev.antell@butlerroyals.com paul.falabella@butlerroyals.com KEHE DISTRIBUTORS: "Russell" Suit Settlement Has Prelim Approval ---------------------------------------------------------------- In the case, STEPHEN RUSSELL, an individual, Plaintiff, v. KEHE DISTRIBUTORS, INC. and DOES 1-100, inclusive, Defendants, Case No. 2:17-CV-01182-JAM-GGH (E.D. Cal.), Judge John A. Mendez of the U.S. District Court for the Eastern District of California granted Russell's Motion for Preliminary Approval of Class and Collective Action Settlement. Russell's Motion for Preliminary Approval came on for hearing on May 8, 2018, at 1:30 p.m. Judge Mendez, having fully and carefully reviewed the Plaintiff's Motion for Preliminary Approval, the memorandum and declarations in support thereof, the Settlement Agreement including the proposed California Class Notice, FLSA Class Notice, and Claim Form, as well as the Defendant's Notice of Non-Opposition thereto, granted the Motion. He preliminarily appointed (i) Russell as the Class Representative; and (ii) Mayall Hurley P.C., by and through Lead Counsel Robert J. Wasserman, William J. Gorham, III, Nicholas J. Scardigli, Vladimir J. Kozina, and John P. Briscoe, as the Class Counsel. He appointed Atticus Administration, LLC as the Settlement Administrator. The Judge also preliminarily approved declared fees and costs of administering the Settlement of up to $26,500. The class of employees covered by the Parties' Settlement consists of (i) all hourly, nonexempt employees of Defendant that (a) received non-discretionary bonuses and commissions, (b) worked over overtime during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime, and (ii) all California employees of Defendant that received one or more electronic wage statements between June 7, 2016 and July 10, 2017. It is estimated that there are 3,555 total class members. Pursuant to Federal Rules of Civil Procedure, Rule 23, and for purposes of settlement only, the Judge preliminarily and conditionally certified the following subclasses, collectively referred to as the California Class: a. All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate of pay when calculating their overtime ("California Regular Rate Class"). b. All hourly, non-exempt employees of Defendant that worked in California, and (a) received non-discretionary bonuses or commissions, (b) worked over 8 hours in a day or 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, (c) the non-discretionary bonuses and commissions were not included in their regular rate of pay when calculating their overtime, and (d) no longer work for the Defendant ("California Former Employee Class"). c. All employees of the Defendant that worked in California and both (a) were paid by direct deposit and (b) received their wage statement(s) electronically rather than along with live paychecks during at least one pay period from June 7, 2016 through July 10, 2017 and are not part of the California Regular Rate Class or the California Former Employee Class ("California Wage Statement Class"). The California Class is estimated to include approximately 1,660 individuals. Judge Mendez granted preliminary approval of the Settlement between the Plaintiff and the Defendant, based upon the terms set forth in the Settlement Agreement. He approved, as to form and content, the California Class Notice and further approved the procedure by which California Class Members may opt out of, and to object to, the Settlement as set forth in the Settlement Agreement and the California Class Notice. Pursuant to 29 U.S.C. Section 216(b), and for purposes of settlement only, the Judge preliminarily and conditionally certified the FLSA Class defined as all hourly, non-exempt employees of Defendant that worked outside of California, and (a) received non-discretionary bonuses or commissions, (b) worked over 40 hours in a week during at least one pay period from June 7, 2013 through April 7, 2018, and (c) the non-discretionary bonuses or commissions were not included in their regular rate pay when calculating their overtime, ("FLSA Class"). The FLSA Class is estimated to include approximately 1,990 individuals. The Judge approved, as to form and content, the FLSA Class Notice and Consent and Claim Form and further approved the procedure by which FLSA Class Members may consent to join the lawsuit and claim a share of the Net Settlement Amount. The Judge directed the mailing of the California Class Notice, FLSA Class Notice, and Consent and Claim Form in accordance with the terms of the Settlement Agreement and on the schedule set forth. Subject to further consideration by the Court at the time of the Final Approval Hearing, the proposed PAGA allocation and payment to the LWDA is preliminarily approved. Subject to further consideration by the Court at the time of the Final Approval Hearing, the proposed Service Payment of $7,500, or .55% of the Maximum Settlement Amount, to the Plaintiff or his service as the Class Representative is preliminarily approved. Subject to further consideration by the Court at the time of the Final Approval Hearing, the Class Counsel's request of attorneys' fees in the amount of 25% of the Maximum Settlement Amount, or $337,500, and declared costs of up to $20,000, are preliminarily approved. The Court adopted the following dates and deadlines: i. The Defendant to provide Class List to the Settlement Administrator - Within 10 calendar days of the Court's execution of the Order Granting Preliminary Approval. ii. Settlement Administrator to mail California Class Class Notice, FLSA Class Notice, and Consent List from Defendant - Within 10 calendar days of its receipt of the Claim Form and establish the website. iii. Settlement Administrator to mail the reminder - Within 30 calendar days of its mailing of the FLSA postcard to the FLSA Class Members. iv. Deadline for California Class Members to object to, or opt out of, the Settlement - Within 45 calendar days after the mailing of the v. Deadline for FLSA Class Members to Consent to join and claim a share of the Net Settlement Amount - Within 45 calendar days after the mailing of the FLSA Class Notice and Consent and Claim Form. vi. Plaintiff to file Motion for Attorneys' Fees, Costs and Service Payment - Not less than 35 calendar days after the mailing of the California Class Notice and FLSA Class Notice. vii. Deadline for the Plaintiff to file Motion for Final Approval - Not less than 28 calendar days before the Final Approval hearing. viii. Final Approval Hearing - Not less than 105 days after the Court's execution of the Order Granting Preliminary Approval. A Final Approval hearing on the question of whether the proposed Settlement, attorneys' fees to the Class Counsel, and the Class Representative's Service Payment should be finally approved as fair, reasonable and adequate is scheduled in for Oct. 2, 2018 at 1:30 p.m. The parties to the Agreement are directed to carry out their obligations under the Settlement Agreement. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/demgKZ from Leagle.com. Stephen Russell, Plaintiff, represented by Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC, John Paul Briscoe -- jbriscoe@mayallaw.com -- Mayall Hurley, PC, Nicholas John Scardigli -- nscardigli@mayallaw.com -- Mayall Hurley, PC & William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley, PC. KeHE Distributors, Inc., Defendant, represented by Jeffrey Paul Fuchsman -- jfuchsman@brgslaw.com -- Ballard Rosenberg Golper & Savitt LLP & John Bruce Golper -- jgolper@brgslaw.com -- Ballard Rosenberg Golper & Savitt LLP. Edward Andrade & Marcus Thompson, Intervenors, represented by David Elliot Webb Gonzalez -- elliot@lfjpc.com -- Lawyers for Justice, PC. KING INVESTMENT: Barren Alleges Financial Fraud & Harassment ------------------------------------------------------------ ELIZABETH BARREN, individually and on behalf of all similarly situated persons, the Plaintiff, v. RICHARD SIMMONS a/k/a "Rick Simmons"; KING INVESTMENT AND CONSULTING GROUP, LLC, a dissolved Illinois Limited Liability Company; KING INVEST SOLUTIONS INC., a dissolved Illinois Corporation; KEYERA EDWARDS-SIMMONS; KEITH MORTON; DAVID GOLDBERG; and SELECT FUNDING, LLC, the Defendants, Case No. 2018CH08826 (Ill. Cir. Ct., Cook Cty., July 13, 2018), seeks to expose and put an end to Defendants' predatory practices, shut down Defendants' unlawful and predatory business, and vindicate the rights of their victims. According to the complaint, the Defendants operate a predatory scheme targeting young women of color with financial fraud and sexual harassment. Under the false promise of offering a path to home ownership, Defendants propose rent-to-own and installment contracts to victims on the condition they make repairs and improvements to the property. As part of the purported "approval" process, Defendants require these victims to allow them access to their credit and tax returns, whereupon Defendants submit falsified tax returns on their victims' behalf and pocket their victims' tax refunds. Then, after repairs on the property are completed, they evict their victims without paying for those repairs. And all the while, they sexually abuse, harass, and assault their victims under threat and coercion.[BN] The Plaintiff is represented by: Sheryl Ring, Esq. Open Communities Legal Assistance Program 990 Grove Street, Suite 500 Evanston, IL 60201 Telephone: (847) 501 5760 E-mail: sheryl@open-communities.org KNORR-BREMSE AG: "Sey" Suit Seeks Damages for Sherman Act Breach ---------------------------------------------------------------- Omar Sey, on behalf of himself and all others similarly situated, Plaintiff, v. Knorr-Bremse AG, Knorr Brake Company LLC, New York Air Brake LLC, Bendix Commercial Vehicle Systems LLC, Westinghouse Air Brake Technologies Corporation, Wabtec Railway Electronics, Inc., Faiveley Transport North America, Inc. and Railroad Controls, LP, Defendants., Case No. 18-cv-01433 (D. Md., May 16, 2018), seeks to recover damages and obtain injunctive relief for injuries caused under Section 1 of the Sherman Act. Defendants and their related subsidiaries are rail equipment used in freight and passenger rail applications suppliers who are alleged of restraining competition in the labor markets in which they compete for employees. Defendants are each other's top competitors for rail equipment, including for skilled employees. However, rather than compete to attract the best employees by offering more attractive salary and benefits packages to prospective job seekers, they instead conspired to enter into a series of agreements intended to circumvent competition for employees and suppress wages and job opportunities, thus suppressing compensation and potential new job opportunities and restraining competition in the market for their employees' services, says the complaint. Omar Sey worked for Wabtec Railway Electronics, Inc. Sey submitted employment applications for available positions at Knorr Brake Company LLC, but he never received an interview or employment offer as a result of the Defendants' no-poach agreements. [BN] Plaintiff is represented by: Andrew D. Freeman, Esq. Neel K. Lalchandani, Esq. BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Tel: (410) 962-1030 Fax: (410) 385-0869 Email: adf@browngold.com nlalchandani@browngold.com - and - Gregory S. Asciolla, Esq. Jay L. Himes, Esq. Christopher J. McDonald, Esq. Karin E. Garvey, Esq. Brian Morrison, Esq. Jonathan Crevier, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: gasciolla@labaton.com jhimes@labaton.com cmcdonald@labaton.com kgarvey@labaton.com bmorrison@labaton.com jcrevier@labaton.com - and - Steven J. Durham, Esq. LABATON SUCHAROW LLP 1050 Connecticut Avenue, NW, Suite 500 Washington, DC 20036 Tel: (202) 772-1880 Email: sdurham@labaton.com LFR MANAGEMENT: "Watson" Suit to Recover Unpaid Overtime -------------------------------------------------------- William D. Watson, individually and on behalf of all others similarly situated, Plaintiff, v. LFR Management, LLC, Defendant, Case No. 18-cv-0422, (N.D. N.C., May 16, 2018), seeks to recover overtime compensation and statutory penalties for herself and all similarly situated who worked in excess of 40 hours per week pursuant to the Fair Labor Standards Act. Defendant is an automobile race team that competes in the Monster Energy NASCAR Cup Series where Watson worked as a fabricator. [BN] Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. PHIL GIBBONS LAW, P.C. 15720 Brixham Hill Ave #331 Charlotte, NC 28227 Tel: (704) 612-0038 Fax: (704) 612-0038 Email: phil@philgibbonslaw.com LOT II LLC: Mabry Alleges Unlawful Termination of Employment ------------------------------------------------------------ DARYL MABRY, 126 Columbia St., Toledo, Ohio 43620, the Plaintiff, v. LOT II, LLC, dba LEXUS OF TOLEDO 7505 West Central Ave., Toledo, Ohio 43617, the Defendant, Case No. 3:18-cv-01612 (N.D. Ohio, July 13, 2018), seeks to recover money damages, reinstatement, and liquidated damages resulting from an alleged unlawful termination of employment. According to the complaint, while employed with Defendant, Plaintiff's hours were cut and sent home early; his work was then distributed to other workers to do. He also was forced to complete tasks outside the scope of his position, including changing lightbulbs, taking the mail out, turning on computers, and bringing cars up front. The Plaintiff's Caucasian co-workers made inappropriate comments to, and about, Plaintiff, but nothing was done to curtail the comments by Defendant. Plaintiff was called a thief, was accused of stealing tips, and was cursed at in front of co-workers. Similar comments were not made to Caucasian employee.[BN] Attorneys for Plaintiff: Francis J. Landry, Esq. Katherine A. Pawlak, Esq. WASSERMAN, BRYAN, LANDRY & HONOLD, LLP 1090 W. South Boundary St., Suite 500 Perrysburg, OH 43551 Telephone: (419) 243 1239 Facsimile: (419) 243 2719 E-mail: FLandry308@aol.com kpawlak@wblhlaw.com MARABELLA PIZZA: Luis Seeks Minimum Wages & Overtime under FLSA --------------------------------------------------------------- ELISEO GONZALES LUIS, on behalf of himself, and others similarly situated, the Plaintiff, v. the MARABELLA PIZZA, LLC, PIETRO PASSALACQUA, and GUISEPPE LETO, the Defendant, Case No. 1:18-cv- 04052 (E.D.N.Y., July 13, 2018), seeks to recover unpaid wages and minimum wages; unpaid overtime compensation; liquidated damages; prejudgment and post-judgment interest; and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants knowingly and willfully failed to pay Plaintiff and other similarly situated employees lawfully earned wages, minimum wages, and overtime compensation, in contravention of the FLSA and New York Labor Law. Pietro Passalacqua is an owner, shareholder, officer, director, supervisor, managing agent, and I or proprietor of Marabella Pizza, who actively participated, and continues to actively participate in the day-to-day operations of Marabella Pizza.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue - 6th Floor New York, NY 0017 Telephone: (212) 209 3933 Facsimile: (212) 209 7102 MATTERSIGHT CORP: "Shade" Suit Seeks to Halt Sale to NICE Ltd. -------------------------------------------------------------- Michael E. Shade, on behalf of himself and all others similarly situated, Plaintiff, v. Mattersight Corporation, Kelly D. Conway, Tench Coxe, Philip R. Dur, Henry J. Feinberg, John T. Kohler, David B. Mullen, Michael J. Murray and John C. Staley, Defendants, Case No. 18-cv-00741, (D. Del., May 16, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Mattersight by NICE Ltd. through its wholly-owned subsidiaries NICE Systems, Inc. and NICE Acquisition Sub, Inc., rescinding it in the event defendants consummate the merger. The lawsuit also seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. The Purchaser commenced a tender offer to purchase all of the outstanding shares of Mattersight common stock for $2.70 per share and all of the outstanding shares of Mattersight preferred stock for $7.80 per share. According to the complaint, the Recommendation Statement omits Mattersight's financial projections, including the financial projections relied upon by Mattersight's financial advisor, Union Square Advisors LLC, data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Union Square, and Mattersight insiders' potential conflicts of interest. NICE Ltd. is a provider of cloud and on-premises software solutions and is organized under the laws of the State of Israel. Mattersight is a Delaware corporation with its principal executive offices located at 200 W. Madison Street, Suite 3100, Chicago, Illinois 60606. Mattersight is a leader in behavioral analytics and a pioneer in personality-based software products. [BN] Plaintiff is represented by: Ryan M. Ernst, Esq. Daniel P. Murray, Esq. 901 N. Market Street, Suite 1000 Wilmington, DE 19801 Tel: (302) 778-4000 Email: rernst@oelegal.com dmurray@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Tel: (212) 682-3025 Fax: (212) 682-3010 Email: racocelli@weisslawllp.com mrogovin@weisslawllp.com MCDONALD'S: Most Scoff at Cheese Lawsuit, But Few Are Lovin' It --------------------------------------------------------------- Dan Sweeney, writing for Sun Sentinel, reports that two South Floridians got litigious when they realized that a Quarter Pounder without cheese was cheaper on the McDonald's app than the same burger with cheese. After all, they had been paying the with-cheese price for years even though they asked to hold the cheese. So now they're suing, and we asked readers what they thought of the lawsuit. It's aiming for class-action status, though lawyers for McDonald's say it would cause "utter chaos" in the restaurant industry if it were to go forward. Most readers agreed with McDonald's that this appeared to be a frivolous claim. "McD's should sue those people. Stupid lawsuit. But hey, nowadays with so many lawyers, they will sue anyone," emailed Ransom Bowen. "If they are unhappy, they always have the option of going somewhere else," wrote Helen McIlhenney. "How long did they order them and not complain?" But while that sentiment was certainly in the majority, it was not universal. "I resent having to pay for cheese when I don't want it -- one of the reasons I don't patronize McD very often," emailed Rick Johnson. "I hope the lawsuit prevails." "I have been complaining of this very thing for years," wrote another reader. "Anytime I asked for anything extra to be added, like tomatoes or cheese, then the up charge is significant. Yet if I delete those items, there is no reduction in price. A burger containing those items cost more than a burger that doesn't, and is also usually larger. So, if I buy the larger burger but omit the items I don't like, I am charged as much is someone who buys the burger with all the extra items added and the franchise pockets the extra money." That is not the way McDonald's sees it, though. In a motion to dismiss the lawsuit, lawyers for the fast-food chain wrote, "When a customer orders a Quarter Pounder with cheese or a Double Quarter Pounder with cheese as displayed on the menu, but asks the restaurant to hold the cheese, the customer is customizing a standard menu item to meet a personal preference." In other words, it's your decision to make the changes, so you're responsible for eating the cost of the cheese. No word yet on whether a judge agrees with the restaurant or believes the plaintiffs deserve a break today.[GN] MDL 2151: 9th Cir. Affirms Denial of Relief from Judgment --------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's judgment denying Plaintiffs' Motion for Relief from Judgment in the case captioned In re: TOYOTA MOTOR CORP. UNINTENDED ACCELERATION MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. CASSANDRA MCNAIR-STEPNEY, Movant-Appellant, v. TOYOTA MOTOR CORPORATION, a Japanese Corporation/a foreign corporation, DBA Toyota Motor North America, Inc.; TOYOTA MOTOR SALES, U.S.A., INC., a California corporation/a foreign corporation, Defendants-Appellees, No. 16-55327 (9th Cir.). McNair-Stepney contends that both her right to due process and Federal Rule of Civil Procedure 23 were violated because neither she nor her attorney received actual notice of the class action settlement, thereby depriving her of an opportunity to opt out. But neither due process nor Rule 23 require that each individual class member receive actual notice. The Ninth Circuit rules that neither due process nor Rule 23 require that each individual class member receive actual notice. Due process instead requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Here, that standard was met. Because the notice provided to the class was constitutionally adequate, McNair-Stepney's due process rights were not violated. The notice also comported with the requirements of Rule 23. The district court therefore permissibly exercised its discretion by denying her motion to opt out of the settlement long after final judgment had been entered. A full-text copy of the Ninth Circuit's June 4, 2018 Memorandum is available at https://tinyurl.com/y92nqgng from Leagle.com MDL 2724: Filing of Consolidated Amended Antitrust Suit Allowed --------------------------------------------------------------- In the case, IN RE: GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS, Case No. 16- MD-2724 (E. D. Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania granted the State Attorneys General for 44 states, the District of Columbia, and the Commonwealth of Puerto Rico ("State Plaintiffs")'s (i) motion for leave to file a Consolidated Amended Complaint ("CAC") and (ii) motion for a separate government track in the multidistrict litigation ("MDL"). On Aug. 5, 2016, the Judicial Panel on Multidistrict Litigation ("JPML") granted a motion under 28 U.S.C. Section 1407, transferring a civil action to the Court for coordinated or consolidated pretrial proceedings with nine other cases then pending in the District, designating the MDL as "In re: Generic Digoxin and Doxycycline Antitrust Litigation." The MDL encompassed actions by direct and indirect purchasers alleging that the defendants, all of which are manufacturers of generic pharmaceuticals, conspired to fix the prices of the two named products. After additional actions were filed or transferred into the MDL, the JPML on April 6, 2017, renamed the MDL as "In re: Generic Pharmaceuticals Pricing Antitrust Litigation" and expanded it to encompass actions in which (a) the Plaintiffs assert claims for price fixing of generic drugs in violation of the Sherman Act and/or state antitrust laws on behalf of overlapping putative nationwide classes of direct or indirect purchasers of generic pharmaceuticals; (b) the average market price of the subject generic pharmaceutical is alleged to have increased between 2012 and the present; (c) the Defendants are alleged to have effectuated the alleged conspiracy through direct company-to- company contacts and through joint activities undertaken through trade associations, in particular meetings of the Generic Pharmaceutical Association; and (d) the allegations stem from the same government investigation into anticompetitive conduct in the generic pharmaceuticals industry. These cases included the proposed class actions filed by numerous Plaintiffs sorted into three groups (Direct Purchaser Plaintiffs, End-Payer Plaintiffs, and Indirect Reseller Plaintiffs); each group thereafter has filed 18 consolidated class action complaints, one complaint for each generic pharmaceutical at issue. The JPML expanded the MDL again to include State Plaintiffs' litigation in the MDL. The JPML noted that State Plaintiffs' claims stem from the same government investigation into anticompetitive conduct in the generic pharmaceuticals industry. At that time, the State Plaintiffs asserted claims as to glyburide and doxycycline hyclate delayed release. More recently, an action was filed in the Court on behalf of private Plaintiffs who do not wish to be part of the class-action complaints ("Direct Action Plaintiffs"). The Direct Action Plaintiffs have filed a complaint alleging an overarching conspiracy and naming 30 drugs (those named by the Class Plaintiffs and those in the State Plaintiffs' proposed CAC). The proposed CAC asserts claims for violation of federal antitrust laws and supplemental claims based upon state law. The State Plaintiffs allege that the Defendants, drug manufacturers and suppliers, have conspired to artificially inflate and maintain prices and reduce competition for 15 generic drugs: acetazolamide, doxycycline hyclate delayed release, doxycycline monohydrate, fosinopril-hydrochlorothiazide, glipizide-metformin, glyburide, glyburide-metformin, leflunomide, meprobamate, nimodipine, nystatin, paromomycin, theophylline, verapamil, and zoledronic acid. The CAC additionally alleges that the Defendants participated in an overarching conspiracy to minimize if not thwart competition across the generic drug industry through a series of specific conspiracies. The State Plaintiffs allege that competition is a key factor in the cost of generic drugs. They allege illegal schemes as to each of the 15 drugs consisting of market allocation agreements to maintain market share and avoid price erosion and agreements to fix prices. These activities allegedly had the purpose or effect of unreasonably restraining and injuring competition, directly relating in an increase in consumer prices for generic pharmaceuticals. In seeking leave to amend, there is no dispute that the State Plaintiffs have not acted with undue delay, bad faith, or dilatory motives. In opposing the motion to amend, the Defendants argue amendment would be futile, because the CAC fails to allege an overarching conspiracy, and would prejudice the Defendants, because of the burden of discovery and potential scope of liability such an overarching claim could portend. Judge Rufe finds that the litigation is in a significantly earlier stage, there are continuing state and federal investigations, and the Court is not prepared to rule at this time that it is implausible that pharmaceutical manufacturers agreed for anticompetitive reasons how the broader market for generic pharmaceuticals will be divided. Although, as the Defendants point out, the proposed CAC is structured in part to detail the allegations as to each of the 15 drugs named, the State Plaintiffs also allege that the Defendants were coordinating more than one drug at a time and thereby influencing the broader generic drug market. Therefore, amendment would not be futile. The Judge also finds that the arguments of all the Defendants as to potential liability, including joint and several liability, will be carefully assessed, whether in the context of a consolidated complaint or a single-pharmaceutical complaint. She recognizes the concern of the majority in Bell Atl. Corp. v. Twombly with regard to the limits of judicial efforts to control discovery, but nevertheless is prepared, with special master assistance, to make all necessary efforts in this regard, and to require that discovery be conducted in a proportionate fashion. Finally, the Judge does not accept the Defendants' arguments that the creation of a track for the State Plaintiffs will result in chaos to the MDL proceedings, or that it will result in unfair prejudice to the Defendants. She has no hesitation in making structural adjustments as the needs of the MDL evolve. A Third Electronic Case Management Order will be entered. Judge Rufe is persuaded that amendment should be allowed and the docketing structure modified to accommodate the amendment. Hence, she granted the State Plaintiffs' motions for leave to file a CAC and for a separate government track in the MDL. Appropriate orders will be entered. A full-text copy of the Court's June 5, 2018 Memorandum Opinion is available at https://is.gd/Z00o6Q from Leagle.com. DEFENSE LIAISON COUNSEL, Defendant, represented by CHUL PAK -- cpak@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI PC, JAN P. LEVINE -- levinej@pepperlaw.com -- PEPPER HAMILTON LLP, LAURA S. SHORES -- laura.shores@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP, SAUL P. MORGENSTERN -- saul.morgenstern@arnoldporter.com -- ARNOLD & PORTER KAYE SCHOLER LLP & SHERON KORPUS -- skorpus@kasowitz.com -- KASOWITZ BENSON TORRES LLP. DIRECT PURCHASER PLAINTIFFS PSC, Plaintiffs, represented by DAVID F. SORENSEN -- dsorensen@bm.net -- BERGER & MONTAGUE, P.C., DIANNE M. NAST -- dnast@nastlaw.com -- NASTLAW LLC, LINDA P. NUSSBAUM -- lnussbaum@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, MICHAEL L. ROBERTS -- mlr@alabamatortlaw.com -- ROBERTS LAW FIRM, ROBERT N. KAPLAN -- rkaplan@kaplanfox.com -- KAPLAN FOX & KILSHEIMER, LLP, THOMAS M. SOBOL -- tom@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP & ROBERTA D. LIEBENBERG -- mail@finekaplan.com -- FINE, KAPLAN AND BLACK. END-PAYER PLAINTIFFS PSC, Plaintiffs, represented by ADAM J. ZAPALA -- azapala@cpmlegal.com -- COTCHETT PITRE & MCCARTHY LLP, BONNY SWEENEY -- bsweeney@hausfeld.com -- HAUSFELD LLP, DENA C. SHARP -- Dena Sharp -- GIRARD GIBBS LLP, ELIZABETH JOAN CABRASER -- ecabraser@lchb.com -- LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP, GREGORY S. ASCIOLLA -- gasciolla@labaton.com -- LABATON SUCHAROW LLP, HEIDI M SILTON -- hmsilton@locklaw.com -- LOCKRIDGE GRINDAL NAUEN PLLP, JAMES R. DUGAN, II, THE DUGAN LAW FIRM, JAYNE A. GOLDSTEIN, SHEPHERD FINKELMAN MILLER & SHAH LLP, JOSEPH R. SAVERI -- jsaveri@saverilawfirm.com -- JOSEPH SAVERI LAW FIRM, MICHAEL M. BUCHMAN -- mbuchman@motleyrice.com -- MOTLEY RICE LLC & MINDEE J. REUBEN -- mreuben@litedepalma.com -- LITE DEPALMA GREENBERG LLC. INDIRECT RESELLERS PSC, Plaintiffs, represented by DANIEL S. MASON, FURTH SALEM MASON & LI LLP, ELIZABETH TIPPING -- info@nealharwell.com -- NEAL & HARWELL, PLC, FRANCIS O. SCARPULLA -- fos@scarpullalaw.com -- LAW OFFICES OF FRANCIS O. SCARPULLA & JONATHAN W. CUNEO -- jonc@cuneolaw.com -- CUNEO GILBERT & LADUCA LLP. INDIRECT RESELLERS PSC, plaintiffs represented by DON BARRETT -- donbarrettpa@gmail.com -- BARRETT LAW OFFICES. STATE ATTORNEYS GENERAL, Plaintiffs, represented by W. JOSEPH NIELSEN, ATTORNEY GENERAL'S OFFICE, LAURA JOHNSON MARTELLA, ATTORNEY GENERAL'S OFFICE, MAX M. MILLER, OFFICE OF THE ATTORNEY GENERAL OF IOWA, ROBERT L. HUBBARD, ATTORNEY GENERAL OF NEW YORK, TIMOTHY M. FRASER, FL OFFICE OF THE ATTORNEY GENERAL & WADE ELLIS BEAVERS, OFFICE OF THE NEVADA ATTORNEY GENERAL. UNITED STATES OF AMERICA, Intervenor, represented by ANDREW J. EWALT, U.S. DEPT OF JUSTICE, ELLEN R. CLARKE, U.S. DEPT OF JUSTICE, JAY OWEN, U.S. DEPT OF JUSTICE, JOSEPH C. FOLIO, III, U.S. DEPT OF JUSTICE & RYAN J. DANKS, U.S. DEPARTMENT OF JUSTICE ANTITTRUST DIVISION. MICROSOFT CORP: Sex-Bias Suit Denied Class-Action Status -------------------------------------------------------- Rachel Lerman, writing for Northwest Arkansas Democrat Gazette, reports that two women suing Microsoft over gender discrimination did not prove that performance reviews were conducted so uniformly across the company that thousands of other women could join the bias case, a Seattle judge wrote in a decision released to the public on July 5. A ruling from U.S. District Judge James Robart denied the motion to make the suit a class action, but his written decision was sealed temporarily while Microsoft and lawyers for the plaintiffs redacted sensitive information. The denial is a big roadblock for the plaintiffs and their lawyers, who were hoping to add more than 8,600 women to the nearly 3-year-old lawsuit that alleges widespread gender discrimination across the company. The plaintiffs can appeal the decision or decide to try other individual cases separately while continuing on with the original lawsuit. "This order really illustrates how difficult it is for a group of employees to really challenge gender discrimination at a company on a class basis," said Charlotte Garden, a law professor at Seattle University. A wave of gender-bias lawsuits against companies in the male- dominated tech industry have started to reach critical courtroom stages, with some of the judges' decisions relying on a common precedent. Class-action status was also denied in a gender-bias lawsuit against social-media giant Twitter. The ruling by that San Francisco judge relied on the same previous case cited by Robart: a 2011 Supreme Court decision that rejected a proposed class in a gender-bias case against Walmart. The court said the potential 1.6 million plaintiffs, who worked across the country under different managers, did not have similar enough experiences to be considered a class. Robart came to a similar conclusion in the Microsoft case. The potential class were all women who held technical roles at the company, but those roles varied quite a bit, as did the locations where they worked, the judge wrote. The case against Microsoft centers on the company's performance- review system, and claims it allows managers to systemically discriminate against women by paying them less and giving them fewer promotions than male employees. The current and former employees all were evaluated under the same performance review system, but it was one that left much discretion and latitude to individual managers, the court said. The review systems involve several meetings at different levels, including between the employee and her manager, and eventually a group of managers together. Microsoft gave some guidelines for these reviews, but left a lot of decision-making power up to specific managers and groups.[GN] MICROSOFT CORP: Court Narrows Claims in ERISA Suit -------------------------------------------------- Judge John C. Coughenour of the U.S. District Court for the Western District of Washington, Seattle, granted in part and denied in part the Defendants' motion to dismiss the case, A.H. by and through G.H. and L.C., both individually, and on behalf of the MICROSOFT CORPORATION WELFARE PLAN, and on behalf of similarly situated individuals and plans, Plaintiff, v. MICROSOFT CORPORATION WELFARE PLAN and MICROSOFT CORPORATION, et al., Defendants, Case No. C17-1889-JCC (W.D. Wash.). Plaintiff A.H. brings the putative class action against the Defendants for violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), the Federal Mental Health Parity and Addiction Equity Act ("Parity Act"), and its implementing regulations, and the Affordable Care Act ("ACA"). Plaintiff A.H. is 16 and suffers from a mental illness and substance abuse disorder. He is a beneficiary of the Plan based on his mother's employment at Microsoft. On Feb. 2, 2016, after conventional treatment had failed, the Plaintiff entered Wingate Wilderness Therapy, which is a wilderness therapy program located in Utah. Wingate has a state license to provide "Outdoor Youth Treatment for 80 Youth Clients Ages 13 to 17." The Plaintiff received behavioral, substance abuse, and mental health services while residing at Wingate from Feb. 2, 2016 to April 11, 2016. Wingate submitted bi-monthly claims to the Plan's claims administrator, Premera Blue Cross, to cover the cost of the Plaintiff's attendance. Premera determined that the cost of attending Wingate was not covered by the Plan and denied the Plaintiff benefits. The Plaintiff internally appealed Premera's decision. Premera denied the appeal, concluding that wilderness programs are excluded by the plan. The Plaintiff subsequently filed the lawsuit, challenging Premera's denial of benefits under the Plan. Judge Coughenour finds that just because the Plan confers discretion on Microsoft does not mean that discretion automatically passes to Premera. The Defendants merely point to the Plan language that confers discretion on Microsoft and allows Microsoft to delegate its discretion to third parties. On this record, he says the Defendant has not met its burden to demonstrate the Plan conferred discretion on Premera regarding benefit determinations such that the Court should apply an abuse of discretion standard. Reviewing the Premera's interpretation of the Plan de novo, he concludes that the Plaintiff has plausibly alleged that Wingate was an eligible provider, as that term is used in the second sentence of the wilderness program exclusion. Therefore, he will deny the Defendants' motion to dismiss the Plaintiff's first and second claims based on the Plan's wilderness program exclusion. The also Judge finds that the Plaintiff has not plausibly alleged facts demonstrating that the Plan's exclusion represents a treatment limitation that is more restrictive for mental health benefits than other medical benefits. Accordingly, the Plaintiff's Parity Act claim will be dismissed without prejudice and with leave to amend. If the Plaintiff chooses to file an amended complaint, he must allege facts that plausibly demonstrate that the Plan's wilderness program exclusion only places a limitation on mental health or chemical dependency treatment. The Judge further finds that the ACA's anti-discrimination provision does not require a health plan to provide coverage for any treatment just because it is rendered by a state-licensed provider. It merely requires that insurers not discriminate against state-licensed providers when their services are covered by a healthcare plan. The Plaintiff does not cite a single case that supports its expansive reading of this provision, which, if adopted, would require insurers to cover any treatment performed by a state-licensed provider. Accordingly, he will dismiss with prejudice the Plaintiff's ACA claim. Finally, the Judge will dismiss the Plaintiff's claim two with leave to amend. He finds that the Plaintiff has not offered any facts that demonstrate the denial of coverage for wilderness programs has caused losses to the Plan itself. Indeed, as the Defendants point out the denial of coverage likely resulted in savings to the Plan, not losses. If the Plaintiff chooses to file an amended complaint, he must allege facts demonstrating that the Plan was injured as a result of the Defendants' conduct. For the foregoing reasons, Judge Coughenour granted in part and denied in part the Defendants' motion to dismiss. In accordance with his order, (i) he denied the Defendant's motion to dismiss the Plaintiff's claim one; (ii) dismissed without prejudice and with leave to amend the Plaintiff's claim two; (iii) dismissed without prejudice and with leave to amend the Plaintiff's Parity Act claim as alleged in claim three; and (iv) dismissed with prejudice the Plaintiff's ACA claim as alleged in claim three. If the Plaintiff chooses to file a second amended complaint, he must do so within 30 days from the issuance of this order. The amendment is permitted solely to address the deficiencies described. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/ACj0Q0 from Leagle.com. A. H., by and through G.H. and L.C., both individually, and on behalf of the Microsoft Corporation Welfare Plan, and on behalf of similarly situated individuals and plans, Plaintiff, represented by Jordan Matthew Lewis, JORDAN LEWIS, PA, pro hac vice, Richard E. Spoonemore, SIRIANNI YOUTZ SPOONEMORE HAMBURGER & Eleanor Hamburger, SIRIANNI YOUTZ SPOONEMORE HAMBURGER. Microsoft Corporation Welfare Plan & Microsoft Corporation, Defendants, represented by Geoffrey M. Sigler -- gsigler@gibsondunn.com -- GIBSON DUNN & CRUTCHER, pro hac vice, Heather L. Richardson -- hrichardson@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP, pro hac vice, Richard Joseph Doren -- rdoren@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP, pro hac vice & Rebecca J. Francis -- rebeccafrancis@dwt.com -- DAVIS WRIGHT TREMAINE. MMDO CORP: Ofarrill Seeks Unpaid OT & Minimum under FLSA -------------------------------------------------------- OSMANY VALDIVIA OFARRILL, and other similarly situated individuals, the Plaintiff(s), v. MMDO CORP d/b/a MONTES DE OCA ORIGINAL PIZZA CUBANA (ESTILO VARADERO) and MANUEL MONTES DE OCA, JR, the Defendants, Case No. 1:18-cv-22812-RNS (S.D. Fla., July 13, 2018), seeks to recover money damages for unpaid overtime and minimum wages under the laws of the United States, and for unpaid wages under the Fair Labor Standards Act. According to the complaint, while employed by the Corporate Defendant, Plaintiff routinely worked in excess of 40 hours per week without being compensated at a rate of not less than one and one-half times the regular rate at which he was employed. In addition, the Corporate Defendant almost never paid Plaintiff at all. Plaintiff was employed as a cook and assistant manager, performing the same or similar duties as that of those other similarly situated cooks and assistant managers whom Plaintiff observed working in excess of 40 hours per week without overtime compensation.[BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503 5131 Facsimile: (888) 270 5549 E-mail: msaenz@saenzanderson.com MONAT GLOBAL: Stefforia Sues over Defective Hair Products --------------------------------------------------------- DONNA STEFFORIA, individually and on behalf of all others similarly situated, the Plaintiff, v. MONAT GLOBAL CORPORATION, a Florida corporation, the Defendant, Case No. 1:18-cv-22837-UU (S.D. Fla., July 13, 2018), seeks to recover damages caused by Defendant's concealment and non-disclosure of the defective and/or harmful nature of its hair products. This action arises from the sale of hair care products designed, manufactured, marketed, and sold by Monat. Monat promotes its products as "naturally-based" and "safe." The Company's promotional materials state, "[a]s more and more people become aware of how naturally based products can positively affect their lives, they are making the switch and opting for healthier options" and that Monat products "gently cleanse and nourish" hair. Monat represents that its products are "suitable for all skin and hair types." Despite these representations, many users of Monat products experienced serious adverse effects, including severe scalp irritation and hair loss. Once the irritation and hair loss starts, it can often continue for weeks or months, even if the consumer immediately discontinues use of the product. One consumer who used Monat products started a Facebook page that has more than 8,000 members called "Monat -- My Modern Nightmare." It is filled with stories by women reporting injuries caused by the Monat haircare product. Defendant provides no warning about these adverse effects. To the contrary, Monat deflected concerns expressed by consumers, stating that initial hair loss is part of a "detox" period before which the regenerative properties of the product become apparent. The Company then suggests that consumers purchase even more Monat product to carry them through the detox period. They were misled into purchasing products represented to be natural and beneficial -- and certainly not harmful -- which is not what they received.[BN] Attorneys for Plaintiff and the Class: Latoya C. Brown, Esq. Julie Braman Kane, Esq. COLSON HICKS EIDSON 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Telephone: (305) 476 7400 Facsimile: (305) 476 7444 E-mail: julie@colson.com latoya@colson.com b.cancela@colson.com eservice@colson.com - and - Gwendolyn R. Giblin, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102-3275 Telephone: (415) 568 2555 Facsimile: (415) 568-2556 E-mail: ggiblin@audetlaw.com hdarling@audetlaw.com MONSANTO COMPANY: Carroll Sues over Sale of Herbicide Roundup ------------------------------------------------------------- Alfred Carroll, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01093 (E.D. Mo., July 5, 2018), seeks to recover damages suffered by Plaintiff as a direct and proximate result of Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k herbicide, and Roundup Original II Herbicide, Roundup. Monsanto Company is an agrochemical and agricultural biotechnology corporation. It was headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] The Plaintiffs are represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC. 11181 Overbrook Road, Suite 200 Leawood, KS 66211 Telephone: (913) 451 3433 Facsimile: (913) 839 0567 E-mail: kgoza@gohonlaw.com NEUMAN'S KITCHEN: Unlawfully Retained Tips, Demasi & Graham Claim ----------------------------------------------------------------- STEPHEN DEMASI AND PAMELA GRAHAM, individually and on behalf of others similarly situated, the Plaintiffs, v. NEUMAN'S KITCHEN; PAUL NEUMAN; and any other related entities, the Defendants, Case No. 710775/2018 (N.Y. Sup. Ct., July 13, 2018), seeks to recover unlawfully retained tips and gratuities owed to Plaintiffs and other similarly situated persons who presently or formerly performed work for Defendants as service employees, including such workers as wait staff, waiters, servers, captains, bussers, bartenders, food runners, bridal attendants, and in various other related customarily-tipped trades, at Defendants' catered events held in the State of New York, pursuant to the New York Labor Law.[BN] Attorneys for the Named Plaintiff & the Putative Class: Laura R. Reznick, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873 9550 NEW WEST: Court Grants Qualified Protective Order in "Gordon" ------------------------------------------------------------- The United States District Court for the District of Montana, Great Falls Division, in the case captioned LANCE R. GORDON and RONI A. GORDON, Plaintiffs, v. NEW WEST HEALTH SERVICES, Defendant, No. CV-15-24-GF-BMM (D. Mont.), issued a qualified protective order in light of the protections that the Health Insurance Portability and Accountability Act (HIPAA) affords to information that the parties in this case must disclose in order to provide notice to individuals that have been identified as putative class members in this class action litigation, the parties find it appropriate to enter into this protective order that ensures the privacy and confidentiality of such information, consistent with 45 C.F.R. Section 164.512(e). The parties to this Order are expressly prohibited from using or disclosing the PHI for any purpose other than in this litigation. Further, any party who comes into possession of PHI pursuant to this Protective Order is ordered to return or destroy such PHI including all copies made immediately upon conclusion of this action pursuant to 45 C.F.R. Section 164.512. A full-text copy of the District Court's June 4, 2018 Order is available at https://tinyurl.com/yasenszq from Leagle.com. Lance R Gordon & Roni A Gordon, Plaintiffs, represented by Daniel Patrick Buckley -dbuckley@danbuckleylaw.com -- BUCKLEY LAW OFFICE & Lawrence A. Anderson, ANDERSON LAW OFFICE. New West Health Services, and its related affiliates, subsidiaries, and successors, Defendant, represented by Ian McIntosh -- imcintosh@crowleyfleck.com -- CROWLEY FLECK, Kelsey E. Bunkers -- kbunkers@crowleyfleck.com -- CROWLEY FLECK & William M. Morris -- wmorris@crowleyfleck.com -- CROWLEY FLECK, PLLP. NEW YORK: Class Decertification in "Monaco" Upheld -------------------------------------------------- In the case, GREGORY R. MONACO, on behalf of himself and other similarly situated individuals, Plaintiff-Appellee, v. ANN MARIE T. SULLIVAN, in her official capacity as Commissioner of the New York State Office of Mental Health, CATHERINE A. CAHILL, M.D., S. SARWAL, personally also known as SARWAL, M.D., WILLIAM PACKARD, M.D., personally, B. PALMA-ACQUINO, M.D., personally, J. TUZEL, R. DAVE, personally, Defendants-Appellants, ALAN AVILES, in his official capacity as the Director of the New York City Health and Hospitals Corporation, DOMINICK STANZIONE, in his official capacity as Acting Director of the Psychiatric Unit of Long Island College Hospital, M.D. S. TUZEL, KATHLEEN KELLY, PATRIC A. MAHONEY, in his official capacity of himself and all other sheriffs and other individuals who transport incompetent defendants from jails to psychiatric hospitals in New York State, ROBERT J. CIMINO, Suffolk County Attorney, MARTIN HORN, in his official capacity as Commissioner of the New York City Department of Corrections, ALFRED TISCH, in his official capacity as Sheriff of Suffolk County, KENNETH SKODNICK, in his official capacity as chairman of Psychiatry at Nassau University Medical Center, M.D. MARC SEDLER, in his official capacity as Chairman of the Department of Psychiatry at University Hospital of the State University of New York at Stony Brook, BENJAMIN CHU, in his official capacity as the Director of the New York City Health and Hospital Corporation, M.D. NYAPATI RAO, in his official capacity as Chairman of Psychiatry at Nassau University Medical Center, V. GORYALIS, ALAN WEINSTOCK, BERNARD KERIK, LOUIS MARCOS, in his official capacity as the Director of the New York City Health and Hospital Corp., MARTIN KESSELMAN, on behalf of directors or chief operating officers of state licensed and governmental operated in-patient psychiatric units in the Eastern District of New York, M.D. ARNOLD LIGHT, on behalf of himself and directors or chief operating officers of privately operated in-patient psychiatric units located in the Eastern District of New York, WILLIAM FRASER, in his official capacity of Commissioner of the New York City Dept. of Corrections, Defendants, Case No. 16-3537-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the Sept. 27, 2016 judgment of the U.S. District Court for the Eastern District of New York granting of summary judgment to Sarwal, Palma-Acquino, Tuzel, Dave, and Packard, and its decertification order. In February 1998, Monaco was arrested for harassment after threatening to kill his mother, and the Town of East Hampton Justice Court ordered Monaco to refrain from any criminal behavior towards her. He threatened to kill his mother again the next month and was charged with criminal contempt and harassment. Monaco was incarcerated at the Suffolk County Correctional Facility from March 24 to May 8, with the exception of seven days in which he was civilly committed to Eastern Long Island Hospital ("ELIH"). While he was in jail, the Town of East Hampton Justice Court ordered that Monaco be subject to psychiatric examination. Pursuant to this order, Packard and Nicholas Aiello, Ph.D., concluded that Monaco was incompetent and incapacitated under CPL Section 730.10. The court then dismissed the criminal charges against Monaco and committed him to OMH pursuant to CPL Section 730.30. Monaco was discharged to the Pilgrim Psychiatric Center on May 8. Three days later, Sarwal, Palma-Acquino, and Tuzel, all psychiatrists employed by Pilgrim, examined Monaco and concluded that he required in-patient psychiatric hospitalization and treatment. On June 3, the court issued an order authorizing Monaco's continued retention. Monaco chose not to petition for a rehearing and review under MHL Section 9.35. Shortly before Monaco's 60-day involuntary commitment period would expire, his treating physician, Dave, encouraged Monaco to voluntarily commit himself under MHL Section 9.13. Monaco did so, but alleges that he was coerced. In February 1999, while Monaco was voluntarily committed, his attorney filed a notice of appeal from the June 3, 1998 court order authorizing his detention. The Appellate Division dismissed the appeal as moot three months later. On May 5, 1998, while he was still incarcerated at Suffolk County Correctional, Monaco filed suit in the U.S. District Court for the Eastern District of New York (Sifton, J.), against various state and local officials, challenging New York's civil commitment regime and requesting declaratory and injunctive relief. In 1999, the district court certified a plaintiff class of all people who have been or will be: (1) charged with a minor felony or misdemeanor, (2) evaluated to determine whether or not they are competent to stand trial, and (3) found by court appointed psychiatrists to lack the capacity to stand trial and awaiting a determination of the competency issue by the local criminal court. A week later, Monaco filed his Second Amended Complaint. This contained individual Section 1983 claims for damages against the state and local officials, as well as Packard, Sarwal, Palma- Acquino, Tuzel, and Dave. As relevant here, he alleged that Packard, by failing to prescribe him Lithium when he had bipolar mood disorder, was deliberately indifferent to his medical needs; Sarwal, Palma-Acquino, and Tuzel committed him when he was not in fact dangerous; and Dave coerced him to sign the voluntary commitment forms. He further alleged that the clinical methodology that psychiatrists employ at several OMH hospitals when making civil commitment decisions is inaccurate, and also that OMH psychiatrists conclude that patients are dangerous as pretext for their desire to treat otherwise non-dangerous people. He did not, however, challenge Pilgrim's commitment practices, beyond his individual claims. Monaco filed a third complaint in March 2000, which listed a new plaintiff, the Mental Disability Law Clinic at Touro Law Center. This complaint sought to divide the certified plaintiff class into two subclasses. The first would consist of all people who met the certified class' three prongs and, if remanded, would be subjected to a civil commitment evaluation under the MHL. The second would consist of all people in Kings, Queens, Richmond, Nassau, and Suffolk Counties who are subject to evaluation under the MHL to determine whether or not they satisfy the criteria for civil commitment. As the litigation progressed, the first subclass came to be known as the "Incompetency Subclass," the second as the "Civil Commitment Subclass." In December 2002, the district court granted summary judgment to Sarwal, Palma-Acquino, Tuzel, and Dave, and certified the Incompetency and Civil Commitment Subclasses. It certified the Incompetency and Civil Commitment Subclasses and appointed the Mental Disability Law Clinic as the class representative for both and Monaco as class representative for the Incompetency Subclass only. Monaco could not serve as a Civil Commitment Subclass class representative for lack of typicality, the court concluded, because he was collaterally estopped from relitigating the state court's dangerousness finding. In March 2016, the district court granted Packard's motion for summary judgment and decertified the Civil Commitment and Incompetency Subclasses. The court then decertified both subclasses because neither had an adequate representative. The parties jointly stipulated that the district court's March 2016 decision disposed of the case' remaining active issues. Accordingly, the court entered final judgment on Sept. 27, 2016. On appeal, Monaco argues that the district court erred in (1) granting summary judgment to Sarwal, Palma-Acquino, Tuzel, Dave, and Packard, and (2) decertifying the Incompetency Subclass. The Appellate Court holds that summary judgment was properly granted on Monaco's claims against Sarwal, Palma-Acquino, and Tuzel. It finds that a party who has not had an opportunity to appeal an adverse finding has not had a full and fair opportunity to litigate that issue. When the trial court dismissed Monaco's appeal as moot, the Appellate Division did not vacate the trial court order, and so the trial court order had preclusive effect. On Monaco's assertion that Dave is not entitled to Youngberg deference because Dave coerced Monaco into voluntarily committing himself, the Court finds that, in his brief, Monaco conclusorily states that Dave "coerced," rather than "encouraged" him has no legal import. The district court was therefore correct to hold that Dave was entitled to summary judgment. Assuming arguendo that Monaco is correct that Packard's failure to prescribe Lithium was reckless, the Court finds that Packard would still be entitled to qualified immunity. Because Packard did not violate clearly established law when he treated Monaco in 1998, the district court did not err in granting summary judgment on this claim. Finally, the Appellate Court concludes that the district court did not abuse its discretion in concluding that Monaco was an atypical member of the Subclass and decertifying the Subclass. It finds that Monaco's claims were still not typical of the Subclass because, once he challenged Pilgrim's initial commitment order, his procedural history diverged from a typical commitment. Monaco received a hearing before a judge, during which he testified and cross-examined witnesses. The judge decided to approve his involuntary commitment only after he received additional medical records, and two additional psychiatrists confirmed the three Pilgrim psychiatrists' initial diagnosis. Hence, the Court holds that the accuracy of their clinical methodology does not seem to occupy essentially the same degree of centrality to his claim as it does for the other class members, because all five psychiatrists concluded that Monaco was dangerous, and the state court judge believed these conclusions to be sufficiently reliable. The Appellate Court has considered Monaco's remaining arguments and find them to be without merit. Accordingly, it affirmed the judgment of the district court. A full-text copy of the Court's June 5, 2018 Summary Order is available at https://is.gd/IS46ra from Leagle.com. WILLIAM M. BROOKS -- wbrooks@tourolaw.edu -- Central Islip, NY. for Plaintiff-Appellant Monaco. SETH M. ROKOSKY (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Andrew Rhys Davies, Assistant Solicitor General of Counsel, on the brief), for Eric T. Schneiderman, Attorney General, State of New York, for Defendants-Appellees Sullivan, Cahill, Sarwal, Acquino, Tuzel, and Dave. DREW W. SCHIRMER, Principal Assistant County Attorney, for Dennis M. Brown, Suffolk County Attorney, Hauppauge, NY, for Defendant- Appellee William Packard M.D. Roberto J. Gonzalez -- rgonzalez@paulweiss.com -- Michelle S. Kallen -- mkallen@paulweiss.com -- Laurence Tai -- ltai@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Amici Mental Hygiene Legal Service, The National Association for Rights Protection and Advocacy, Advocacy Unlimited, Inc., The Connecticut Legal Rights Project, Inc., Judge David L. Bazelon Center for Mental Health Law, and Disability Rights Maine. NEW YORK UNIVERSITY: Court Denies Bid to Amend "Basso" Suit ----------------------------------------------------------- In the case, ANNA BASSO, AMY HARTMAN, AND JAIME VILLA RUIZ, Plaintiffs, v. NEW YORK UNIVERSITY, Defendant, Case No. 16-CV- 7295 (VM) (KNF) (S.D. N.Y.), Magistrate Judge Kevin Nathaniel Fox of the U.S. District Court for the Southern District of New York denied the Plaintiffs' motion for leave to amend the complaint. Before the Court is the Plaintiffs' motion seeking leave to file a second amended complaint ("SAC") which would: (1) include "core specific allegations explaining the basis for claiming that Defendant misrepresented the nature and quality of the education at Tisch Asia to prospective students;" (2) include a new theory of liability -- a claim for negligent concealment based on the same operative facts that underpin Plaintiffs' other claims; and (3) exclude the cause of action for breach of duty to act in good faith and fair dealing. The Plaintiffs' amendment is prompted by evidence, recently uncovered during discovery showing that: (a) the Defendant failed to disclose that Tisch Asia was an uncertain, five-year experiment; and (b) NYU's top administration was interested in Tisch Asia's failure from the very beginning and knew of the high risk that the program would have to be closed if the Singaporean Government did not repeal its tax on tuition, none of which was disclosed to the Plaintiffs. The Plaintiffs assert that the amendment will not require additional discovery and will not prejudice the Defendant" because: (i) the Plaintiffs have been deposed and the proposed amendment does not implicate any of their testimony; (ii) no undue delay exists because the Plaintiffs obtained new evidence forming the basis of the "Negligent Concealment" cause of action "in April 2018"; and (iii) even absent amendment of the complaint, Plaintiffs are seeking an extension of the discovery schedule. The Defendant contends that the amendment: (1) improperly reasserts claims under New York General Business Law ("GBL") that the Court already dismissed on NYU's motion to dismiss; and (2) a negligent concealment" cause of action, is non-viable, because under New York law, a university cannot have a special relationship with its students, and duplicative of the Plaintiffs' negligent misrepresentation claim. Moreover, the request to amend is made in bad faith because the Plaintiffs knew about the proposed allegations, since at least November 2017, when NYU produced documents regarding the five year review of the program. The Defendant asserts it will be prejudiced by the amended pleading, since it did not have an opportunity to explore the new allegations contained in the SAC. Magistrate Judge Fox finds that although the assigned district judge found that the Plaintiffs sufficiently alleged facts that indicate a special relationship exists to plead a negligent misrepresentation claim, no fiduciary relationship is alleged in the proposed SAC or mentioned by the Plaintiffs in their reply. Thus, absent the allegation of fiduciary relationship between the Plaintiffs and the Defendant, the New York equitable tolling theory proffered by the Plaintiffs in their reply would not be applicable to toll the statute of limitations in this case. Accordingly, the Plaintiffs may not revive the GBL Sections 349 and 350 causes of action, dismissed previously as time barred, based on the proffered theory of equitable tolling, since such causes of action would be futile. In addition, the Magistrate Judge finds that amending the complaint because the Plaintiffs obtained certain evidence during discovery that they believe supports their negligent misrepresentation cause of action would be a futile exercise that would prolong the action unjustifiably and prejudice the Defendant unduly. Finally, he finds that in their First Amended Class Action Complaint, the Plaintiffs asserted "Count II: Breach of Duty To Act in Good Faith and Conduct Fair Dealing," which they now propose to exclude. However, that cause of action, he says, was dismissed when the assigned district judge granted, in part, the Defendant's motion to dismiss as to the breach of the implied covenant of good faith and fair dealing. The Plaintiffs' attempt to withdraw the cause of action that was already dismissed is unnecessary and frivolous. For the foregoing reasons, Magistrate Judge Fox denied the Plaintiffs' motion for leave to amend the complaint. A full-text copy of the Court's June 5, 2018 Memorandum and Order is available at https://is.gd/iIFkNU from Leagle.com. Anna Basso, Amy Hartman & Jaime Villa Ruiz, Plaintiffs, represented by Aliaksandra Ramanenka -- aramanenka@gslawny.com -- Giskan, Solotaroff & Anderson & Stewart, LLP, Matthew Francis Schwartz, Schwartz & Ponterio, PLLC & Oren Giskan -- ogiskan@gslawny.com -- Giskan, Solotaroff & Anderson & Stewart, LLP. New York University, Defendant, represented by Edmund M. O'Toole -- emotoole@Venable.com -- Venable LLP, Michael J. Volpe -- mjvolpe@Venable.com -- Venable LLP, Benjamin Eldridge Stockman -- bestockman@Venable.com -- Venable LLP, David Neil Cinotti -- dcinotti@pashmanstein.com -- Venable LLP & Sandy Schlesinger -- sschlesinger@Venable.com -- Venable LLP. NEW ZEALAND: Kiwi Case Opens Class Action Door ---------------------------------------------- Angela Bilbow, writing for CDR, reports that in the first 'true' class action to go to full trial in New Zealand, the country's High Court has found in favour of a group of kiwifruit growers who are seeking damages from the government over an avoidable bacterial disease. In Strathboss Kiwifruit v Attorney-General, a case funded by LPF Litigation Funding, Justice Jillian Mallon, sitting in Wellington's High Court, handed down judgment in the first stage of representative (class action) proceedings brought by a group of kiwifruit growers and a post-harvest operator seeking hundreds of millions of dollars against the government after the deadly bacterial disease Psa caused significant harm to crop in 2010. The court held that the Ministry of Agriculture and Forestry (MAF -- now Ministry of Primary Industries) owed a duty of care to the kiwifruit growers, which, at pre-border stage, it breached when it granted a permit for Kiwi Pollen to introduce a shipment of kiwifruit anthers (essentially pollen) which was used to artificially pollinate orchards.[GN] NHL: Retired NHLer Battles Concussions -------------------------------------- Mike Aiken, writing for Kenora On Line, reports that at first, it seems like he's living the life of Riley. Joe Murphy works as a labourer, when he needs money, and he sleeps in a tent in a farmer's field, when he needs shelter. During a short chat, he'll talk about settling down a bit in an apartment. He says he now calls Kenora his home by the water, but finding affordable housing is next to impossible, not just because of the market. The thing is, Joe Murphy's not your average Joe. He's a retired NHL player. A first overall draft pick of Detroit, he played 15 seasons, including a Stanley Cup win with Mark Messier and the Oilers in 1990. However, life after hockey hasn't been kind to him, to put it mildly. Truth be told, Joe Murphy's one of 80 plaintiffs in a class action lawsuit against the NHL related to concussions. "It's a very serious matter, concussions. I've suffered a horrific, serious concussion that debilitated me for a long time. It was tough," he says, recalling how he fractured his skull in a game. In their class action, the former players say the league didn't do enough to protect them and warn them about the dangers of the game, including fighting. The league, however, says they did their part, and the players were well aware of the risks involved. As the interview moves on, Murphy talks about the debilitating energy loss and lethargy that he felt, after he suffered a concussion. He says this took its toll on his play towards the end of his career. "After I was getting hit, fireflies around me all the time. Just everywhere," he continued. "Even at the end of my career, I'd hit a guy and then 'boom.' There'd be those sparkly things all over. Very difficult." An article from the Globe and Mail talks about how Murphy's career might've been at an end in Boston in 2000, after he stirred things up in the dressing room with teammates and his coach. Nevertheless, Murphy would go on to play another two seasons in Washington, before retiring. Today, Murphy notes doctors have been gathering information for close to 90 years now, and there are fewer players suffering from concussions. The speed and finesse of today's game is 'excellent,' he says. Still, he thinks there should be something done for the retired players, who need help. Murphy thinks they should be 'taken care of,' which he thinks should involve some financial aid and some medical help. At this point in his life, he admits he's 'de-escalated,' meaning he's lost everything. One estimate said he'd made more than $15 million in his playing days, but today he doesn't even have a phone. He acknowledges he hasn't been online in years. There's no contact information, even for fans who want to reach out. The class action lawsuit continues to crawl along at a snail's pace, so it won't be a big payday anytime soon. A hearing in federal court in Minneapolis last spring simply dealt with motions. Recently, two more retired players joined the class action. One of them is Nick Boynton. Last month, his open letter entitled Everything's Not O.K. was reprinted in The Players' Tribune. "Whenever things get really bad, and I find myself thinking about death, it's always in the context of release. Escaping the pain. And no longer being around to make the lives of those I love miserable," he says in the letter. Boynton notes he knew enforcers, who also suffered after hockey: -- Steve Montador -- Wade Belak -- Derek Boogaard -- Rick Rypien "I've lied for too long. I can't lie anymore," Boynton writes. Boynton describes breaking down to cry before his kids, or being unable to leave the house to visit his daughters. The alcohol and drugs were there to self-medicate and relieve the pain, but rehab and self-help programs weren't enough. Instead, he talks about a specialized treatment centre in Florida, where they've been able to pinpoint problem areas in his brain, then develop programs to help. If he'd known what was coming, Boynton says he would easily have retired from the game earlier, give away his Stanley Cup ring, and scratch his name of the trophy. He would trade it all, if it meant he could feel better.[GN] NY COMMUNITY: "Coty" Suit Seeks Reimbursements, Overtime Pay ------------------------------------------------------------ Yatshukovichka N. Coty, individually and on behalf of all other persons similarly situated, Plaintiffs, v. NY Community Financial, LLC, and other affiliated entities that employed Plaintiff and members of the putative class, Defendant, Case No. 153891/2018 (N.Y. Sup., April 26, 2018), seeks unpaid overtime due with corresponding liquidated damages, reimbursement of uniform maintenance expenses, taxable costs and allowable expenses of this action, attorneys' fees, prejudgment and post- judgment interest, declaratory and injunctive relief and such other and further relief for violation of New York Labor Laws. Defendant owns and operates check-cashing stores. Denville allegedly failed to pay contractually and/or statutorily required prevailing wages and supplemental benefits. On May 17, 2018, Coty filed a request for an Affirmation/Affidavit of Service from the NY Community Financial. [BN] Plaintiff is represented by: Lloyd R. Ambinder, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 Email: jnewhouse@vandallp.com OCEAN DRIVE: "Vasquez" Suit Seeks Payment of Overtime Wages, Tips ----------------------------------------------------------------- Salvador Vazquez, and other similarly-situated individuals, Plaintiff, v. Ocean Drive Restaurant LB, LLC and Anselmo V. Hernandez, individually, Defendants, Case No. 18-cv-21971 (S.D. Fla., May 17, 2018), seeks to recover overtime compensation, liquidated damages, costs and reasonable attorney's fees under the provisions of Fair Labor Standards Act. Ocean Drive Restaurant operates as Baguette Restaurant, a restaurant and bar located at 1052 Ocean Drive, Miami Beach where Vazquez worked as a non-exempt hourly bus boy from from August 1, 2016 to January 1, 2018. He did not receive the mandatory direct (or cash) wages and he did not receive enough tips to equal the minimum hourly wage of $7.25 per hour. He worked many hours in excess of forty every week, however, was not paid any additional amount for overtime hours, says the complaint. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com OFF-WHITE LLC: Website not Accessible to Blind, Fischler Says ------------------------------------------------------------- BRIAN FISCHLER, Individually and on behalf of all other persons similarly situated, the Plaintiff, v. OFF-WHITE, LLC, the Defendant, Case No. 1:18-cv-04046-MKB-VMS (E.D.N.Y., July 13, 2018), seeks permanent injunction to cause Off-White to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually- impaired consumers. According to the complaint, the Plaintiff, who is legally blind, brings this civil rights action against Defendant for its failure to design, construct, maintain, and operate its website, https://www.off-white.com/en/US, to be fully accessible to and independently usable by Plaintiff and other blind or visually- impaired people. Off-White denies full and equal access to its Website. The Plaintiff, individually and on behalf of others similarly situated, asserts claims under the Americans With Disabilities Act, New York State Human Rights Law, and New York City Human Rights Law against Off-White.[BN] The Plaintiff is represented by: Christopher H. Lowe, Esq. Douglas B. Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Telephone: (212) 392 4772 E-mail: chris@lipskylowe.com doug@lipskylowe.com PAY CAR: Court Certifies Class of Laid Off Employees in "Lester" ---------------------------------------------------------------- In the case, DOUGIE LESTER, Plaintiff, v. PAY CAR MINING, INC., et al., Defendants, Civil Action No. 5:17-cv-00740 (S.D. W.V.), Judge Irene C. Berger of the U.S. District Court for the Southern District of West Virginia, Beckley Division, granted the Plaintiff's Motion to Certify Class. Lester, initiated the action by filing his Complaint in the Court on Jan. 20, 2017, alleging that the Defendants violated the Worker Adjustment and Retraining Notification ("WARN") Act by failing to provide a 60-day notice to employees of a pending layoff. As of October 2012, Mr. Lester was a full time employee of Mechel Bluestone and Pay Car Mining at the Pay Car Mine, and had been for over two years. On Oct. 20, 2012, the Defendants ordered a mass layoff at the Pay Car Mine. They verbally informed all of the employees at the Pay Car Mine that there was no further work and that they were laid off. Between Sept. 1, 2012, and Dec. 1, 2012, approximately 80 miners, including the named Plaintiff, were laid off from the Pay Car Mine and the Burke Mountain Mine Complex. Neither the Plaintiff nor his collective bargaining representative, the United Mine Workers of America, received written notice of the layoff. The Plaintiff claims that Mechel Bluestone, in coordination with Bluestone Industries and Bluestone Coal Corp., possessed de facto and de jure control over the Pay Car Mine such that Mechel Bluestone ultimately made the decision as to when to idle the mine's operations and lay off workers. On April 24, 2018, the parties attended a mediation conference before United States Magistrate Judge Omar J. Aboulhosn. They did not reach a settlement agreement, and on the same day, the Plaintiff filed the motion to certify the class. The Defendants filed their response in opposition on May 8, 2018, and the Plaintiff filed his reply on May 15, 2018. Judge Berger finds that the Plaintiff's class definition satisfies the WARN Act's standing requirements. He also finds that the Plaintiff's class definition is not overly broad and only includes those putative class members who were laid off from the Burke Mountain Mine Complex within an aggregated 90-day period pursuant to 29 U.S.C. Section 2102(d) and does not use legal terms of art that amount to a fail-safe class definition. He further finds that the class definition is not flawed. Finally, he finds that the he proposed class satisfies the class action requirements of Rule 23(a) and (b)(3). For these reasons, the Judge granted the Plaintiffs' Motion to Certify Class. He certified the action as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. He certified the Class, subject to any later modification pursuant to Rule 23(c)(1)(C), of all full-time employees of Bluestone Industries, Inc. who were terminated from employment, or subject to a reduction in force, at the Burke Mountain Mine Complex, including at the Pay Car Mine, from Sept. 2, 2012 through Dec. 1, 2012. The Class claims are those alleged in the Plaintiff's Complaint, specifically that the Defendants violated the WARN Act. Judge Berger appointed Lester as the Class Representative, and Bren L. Pomponio and Samuel B. Petsonk of Mountain State Justice, Inc., as the Class counsel. The Court will permit discovery as to possible modification of the class definition as well as to the merits of the case, and will entertain future motions for modification of the class definition. The Plaintiff will submit to the Court a proposed Class notice document after conferring with opposing counsel. The Judge directed the Clerk to send a copy of the Order to the counsel of record and to any unrepresented party. A full-text copy of the Court's June 6, 2018 Memorandum Opinion and Order is available at https://is.gd/cdiAzr from Leagle.com. Dougie Lester, individually and on behalf of all others similarly situated, Plaintiff, represented by Bren J. Pomponio -- bren@msjlaw.org -- MOUNTAIN STATE JUSTICE, INC. & Samuel Brown Petsonk -- sam@msjlaw.org -- MOUNTAIN STATE JUSTICE, INC. Pay Car Mining, Inc., Bluestone Industries, Inc., Bluestone Coal Corp., Keystone Service Industries, Inc. & Mechel Bluestone, Inc., Defendants, represented by Andrew L. Ellis -- drew.ellis@wwdhe.com -- WOOTON WOOTON & DAVIS, John F. Hussell, IV -- john.hussell@wwdhe.com -- WOOTON WOOTON & DAVIS & John D. Wooton, Jr. -- jody.wooton@wwdhe.com -- THE WOOTON LAW FIRM. PEOPLEREADY FLORIDA: "Scippio" Suit to Recover Unpaid Overtime -------------------------------------------------------------- Vernice Scippio, on behalf of himself and others similarly situated, Plaintiff, v. Peopleready Florida, Inc., Defendants, Case No. 18-cv-00344 (M.D. Fla., May 16, 2018), seeks overtime compensation for hours rendered in excess of forty hours per work week with corresponding liquidated damages, reasonable attorney's fees and costs and expenses of the litigation, prejudgment interest and any other further relief under the Fair Labor Standards Act. PeopleReady is a staffing company in Lake Park, Florida where Scippio worked as a laborer for the Defendants from September 15, 2017 to October 3, 2017. He claims to have worked in excess of 40 hours per workweek without being paid overtime pay. [BN] Plaintiff is represented by: Bill B. Berke, Esq. BERKE LAW FIRM, P.A. 4423 Del Prado Blvd. S. Cape Coral, FL 33904 Telephone: (239) 549-6689 Email: berkelaw@yahoo.com PLAZA SERVICES: Williams Sues over Debt Collections Practices ------------------------------------------------------------- LaTasha Williams, individually and on behalf of all others similarly situated, the Plaintiff, v. Plaza Services, LLC and John Does 1-25, the Defendants, Case No. 1:18-cv-00588 (W.D. Tex., July 13, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to complaint, some time prior to September 1, 2017, an obligation was allegedly incurred to Money Key. The obligation arose out of a transaction involving an alleged debt incurred by Plaintiff with Money Key for funds which Plaintiff used primarily for personal, family or household purposes. The alleged Money Key obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). Money Key, a "creditor" as defined by 15 U.S.C. section 1692a(4), contracted with the Defendant Plaza to collect the alleged debt. The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. Plaza Services purchases and enhances the value of accounts receivable portfolios by creating value for sellers and industry partners.[BN] Attorneys for Plaintiff LaTasha Williams: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282 6500 Facsimile: (201) 282 6501 E-mail: yaakov@steinsakslegal.com PNC BANK: Court Grants Bid to Dismiss "Pfendler" Suit ----------------------------------------------------- Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania granted the Defendant's Motion to Dismiss all claims in the case, JACQUELINE PFENDLER on behalf of herself and all others similarly situated, Plaintiff, v. PNC BANK, NATIONAL ASSOCIATION, Defendant, Case No. 18cv0361 (W. D. Pa.). Pfendler, seeks to represent a class of individuals who were assessed property inspection fees by PNC, alleging that PNC uses an automated mortgage loan management system which orders unnecessary, unreasonable, and inappropriate property inspections whenever a borrower falls sufficiently behind on mortgage payments, and continues to order the inspections at regular intervals until the borrower becomes current. The Plaintiff alleges that this practice is a breach of contract, violates the Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("PA UTPCPL"), violates the North Carolina Unfair and Deceptive Trade Practice Act ("N.C. UDTPA"), and results in unjust enrichment to PNC. The Defendant filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Schwab has reviewed the Complaint, the Defendant's Motion, the Memorandum in Support, the Plaintiff's Memorandum in Opposition, and the Defendant's Reply brief. The Judge finds that the Plaintiff's breach of contract claim is barred. He says allowing the Plaintiff to rely upon another individual's lawsuit against PNC to satisfy the notice and cure provision of the contract would defeat the sound principle underpinning such contract provisions -- which is to prevent the needless entry into litigation for contract breaches that may easily and inexpensively be resolved between the parties. As PNC argues, it is incomprehensible to allow judicial action to serve as the notice required by a contractual provision meant to precede (and prevent) judicial action. Further, he finds no merit to the Plaintiff's claim that complying with the notice and cure provision would be futile. The Judge also finds that the Plaintiffs cannot state a claim under either law because PNC has not engaged in any unfair or deceptive act by assessing fees for property inspections to borrowers in default of their mortgage obligations where such fees are specifically disclosed in the mortgage agreements. The allegations within the Plaintiff's Complaint supporting these claims rest upon boilerplate language and conclusory statements. Therefore, the Plaintiff fails to state a claim under the PA UTPCPL or N.C. UDTPA. Finally, the Judge finds that the Plaintiff's claim for unjust enrichment fails as a matter of law because the doctrine of unjust enrichment is inapplicable where the relationship between the parties is founded upon a written agreement or express contract. For the reasons set forth, Judge Schwab granted the Defendant's Motion to Dismiss. The Plaintiff's Complaint is dismissed. An appropriate Order will follow. The Clerk will mark the case closed. A full-text copy of the Court's June 5, 2018 Memorandum Opinion is available at https://is.gd/Epve8b from Leagle.com. JACQUELINE PFENDLER, on behalf of herself and all others similarly situated, Plaintiff, represented by Edwin J. Kilpela -- ekilpela@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP, Bradley F. Silverman -- bsilverman@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, pro hac vice, Douglas Gregory Blankinship -- gblankinship@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, pro hac vice & Todd S. Garber -- tgarber@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP., pro hac vice. PNC BANK, NATIONAL ASSOCIATION, Defendant, represented by Jarrod Shaw -- jshaw@mcguirewoods.com -- McGuire Woods LLP & Nellie E. Hestin -- nhestin@mcguirewoods.com -- McGuireWoods LLP. PRECISION CASTPARTS: Class in "Murphy" Securities Suit Certified ---------------------------------------------------------------- In the case, KEVIN MURPHY, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. PRECISION CASTPARTS CORP., MARK DONEGAN, and SHAWN R. HAGEL, Defendants, Case No. 3:16-cv-00521-SB (D. Or.), Magistrate Judge Stacie F. Beckerman of the U.S. District Court for the District of Oregon recommended that the district judge should grant the Lead Plaintiffs' Motion for Class Certification and Appointment of Class Representatives and Class Counsel. Lead Plaintiffs AMF Pensionsforsakring AB and the Oklahoma Firefighters Pension and Retirement System filed an amended class action complaint on behalf of all persons or entities who purchased or otherwise acquired the publicly traded securities of Precision Castparts Corp. ("PCC") between May 9, 2013 and Jan. 15, 2015, seeking to pursue remedies under the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"). Specifically, the Lead Plaintiffs brought the action against PCC, a manufacturer of complex metal components, Donegan, the Chairman and Chief Executive Officer of PCC, and Hagel, the Executive Vice President and Chief Financial Officer of PCC, alleging violations of sections 10(b) and 20(a) of the Exchange Act and Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder. The Lead Plaintiffs filed the Motion to Certify. They move to certify the class of investors defined as all individuals or entities who purchased or otherwise acquired common stock of PCC during the proposed class period of May 9, 2013 through Jan. 15, 2015, inclusive and were damaged thereby. The Defendants filed a Statement of Qualified Non-Opposition to the Lead Plaintiffs' Motion for Class Certification, taking no position on the Lead Plaintiffs' Motion to Certify, but reserving the right to challenge at later stages of the litigation any of the Plaintiffs' claims in the matter. Magistrate Judge Beckerman finds that although the precise number of the class members has not been determined, the proposed Class is well over 40. Accordingly, Rule 23(a)(1)'s numerosity requirement is satisfied. She also finds that these questions are class-wide and will involve common proof. Hence, Rule 23(a)(2)'s commonality requirement is satisfied. The Lead Plaintiffs' and the class members' claims are based on the same legal theory -- that by making material misstatements and omissions, PCC violated sections 10(b) and 20(a) of the Exchange Act. Specifically, they all purchased shares of PCC's stock during the Class Period, relied on PCC's alleged misstatements and omissions, and suffered damages when PCC's stock prices fell after the discovery of the alleged fraud. Thus, The Magistrate Judge holds that the proof of the Lead Plaintiffs' claims will also be proof of the Class members' claims. Accordingly, Rule 23(a)(3)'s typicality requirement is satisfied. Finally, having reviewed the resumes of Kessler Topaz Meltzer & Check, LLP, Labaton Sucharow LLP, and Garvey Schubert Barer, it appears that the Lead Plaintiffs' proposed counsel for the Class is qualified and competent. The Magistrate Judge further finds upon review of Per-Erik Karlsson's (Head of AMF Legal Department) and Chase Rankin's (Executive Director of Oklahoma Firefighters) declarations that the Lead Plaintiffs will vigorously prosecute this action on behalf of the Class. Accordingly, she finds that Rule 23(a)(4)'s adequacy requirement is satisfied. In the absence of a class action, it is likely that many of the individual Plaintiffs would forgo prosecution of their claims based on a cost/benefit calculus. In addition, the Court would experience a greater burden created by hundreds of individual complaints, and such piecemeal litigation raises the risk of inconsistent outcomes. Under the circumstances, the Court finds that class resolution is indeed superior here. Accordingly, the Magistrate Judge finds that Rule 23(b)(3)'s predominance and superiority requirements are satisfied. For the reasons she stated, Magistrate Judge Beckerman recommended that the district judge should grant the Lead Plaintiffs' Motion for Class Certification and Appointment of Class Representatives and Class Counsel. The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. A full-text copy of the Court's June 6, 2018 Findings & Recommendations Order is available at https://is.gd/PSRFNW from Leagle.com. Kevin Murphy, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jeffrey S. Ratliff, Ransom Gilbertson Martin & Ratliff, LLP. KBC Asset Management NV, Plaintiff, represented by Michael B. Merchant -- mbm@bhlaw.com -- Black Helterline, LLP. AMF Pensionsforsakring AB, Lead Plaintiff, Plaintiff, represented by Darren J. Check -- dcheck@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Eli R. Greenstein -- egreenstein@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Gregory M. Castaldo -- gcastaldo@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Jonathan F. Neumann -- jneumann@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Joshua A. Materese -- jmaterese@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Nathan Hasiuk -- nhasiuk@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Naumon A. Amjed -- namjed@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Richard A. Russo, Jr. -- rrusso@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Ryan T. Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac vice, Eryn K. Hoerster -- ehoerster@gsblaw.com -- Garvey Schubert Barer, Paul H. Trinchero -- ptrinchero@gsblaw.com -- Garvey Schubert Barer & Robert C. Weaver, Jr. -- rweaver@gsblaw.com -- Garvey Schubert Barer. Oklahoma Firefighters Pension and Retirement System, Lead Plaintiff, Plaintiff, represented by Alfred L. Fatale, III -- afatale@labaton.com -- Labaton Sucharow LLP, pro hac vice, Christopher D. Barraza -- cbarraza@labaton.com -- Labaton Sucharow LLP, pro hac vice, Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow LLP, pro hac vice, Claiborne R. Hane, Labaton Sucharow LLP, pro hac vice, Eric J. Belfi -- ebelfi@labaton.com -- Labaton Sucharow LLP, pro hac vice, Eric D. Gottlieb -- egottlieb@labaton.com -- Labaton Sucharow LLP, pro hac vice, James T. Christie -- jchristie@labaton.com -- Labaton Sucharow LLP, pro hac vice, James W. Johnson -- jjohnson@labaton.com -- Labaton Sucharow LLP, pro hac vice, Joel H. Bernstein, Labaton Sucharow LLP, pro hac vice, John Esmay -- jesmay@labaton.com -- Labaton Sucharow LLP, pro hac vice, Marisa N. DeMato -- mdemato@labaton.com -- Labaton Sucharow LLP, pro hac vice, Mark S. Arisohn -- marisohn@labaton.com -- Labaton Sucharow LLP, pro hac vice, Michael H. Rogers -- mrogers@labaton.com -- Labaton Sucharow LLP, pro hac vice, Ross M. Kamhi -- rkamhi@labaton.com -- Labaton Sucharow LLP, pro hac vice, Eryn K. Hoerster, Garvey Schubert Barer, Matthew J. Hrutkay, Labaton Sucharow LLP, pro hac vice, Michael W. Stocker, Labaton Sucharow LLP, pro hac vice, Paul H. Trinchero, Garvey Schubert Barer & Robert C. Weaver, Jr., Garvey Schubert Barer. Precision Castparts Corp., Mark Donegan & Shawn R. Hagel, Defendants, represented by Christin J. Hill -- chill@mofo.com -- Morrison & Foerster LLP, pro hac vice, David J. Wiener -- dwiener@mofo.com -- Morrison & Foerster LLP, pro hac vice, Jordan D. Eth -- jeth@mofo.com -- Morrison & Foerster LLP, pro hac vice, Judson E. Lobdell -- jlobdell@mofo.com -- Morrison & Foerster LLP, pro hac vice, Lauren M. Bennett -- laurenbennett@mofo.com -- Morrison & Foerster LLP, pro hac vice, Ryan M. Keats -- rkeats@mofo.com -- Morrison & Foerster LLP, pro hac vice, B. John Casey -- john.casey@stoel.com -- Stoel Rives LLP, Brad S. Daniels -- brad.daniels@stoel.com -- Stoel Rives LLP, Joel A. Mullin -- joel.mullin@stoel.com -- Stoel Rives LLP & Samantha K. Sondag -- samantha.sondag@stoel.com -- Stoel Rives LLP. PROTHENA CORP: Teachers' Fund Sues Over Share Price Drop -------------------------------------------------------- Arkansas Teacher Retirement System, individually and on behalf of all others similarly situated, Plaintiff, v. Prothena Corporation PLC, Gene G. Kinney, Tran B. Nguyen and Sarah Noonberg, Defendants, Case No. 18-cv-02865, (N.D. Cal., May 15, 2018), seeks compensatory damages, reasonable costs and expenses incurred in this action, including attorneys' fees and expert fees and such equitable/injunctive or other further relief under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934. Prothena is a development-stage biotechnology company whose principal asset was NEOD001, a monoclonal antibody designed to treat amyloid light chain amyloidosis. However, NEOD001 failed to reach either its primary or secondary endpoints, and was substantially less effective than a placebo. In response to this news, Prothena stock fell 69%. Prothena never disclosed the full results of its testing. The Arkansas Teacher Retirement System purchased Prothena's publicly traded common stock and lost substantially from corrective disclosure. [BN] Plaintiff is represented by: David R. Stickney, Esq. David Kaplan, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Tel: (858) 720-3183 Fax: (858) 793-0323 Email: davids@blbglaw.com davidk@blbglaw.com - and - Avi Josefson, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Tel: (212) 554-1493 Fax: (212) 554-1444 Email: avi@blbglaw.com REPROMED: Gluckstein Lawyers Files Class Action Lawsuit ------------------------------------------------------- A woman whose eggs were stored at ReproMed - the Toronto Institute for Reproductive Medicine (TIRM) has filed a class action lawsuit, alleging the fertility company was negligent in its inspection, monitoring and maintenance of a storage freezer which failed in late May, destroying her eggs and hopes for a family. The lawsuit was filed on behalf of all individuals who lost viable embryos, sperm and eggs in the freezer malfunction. The suit alleges that a cryogenic storage tank located at ReproMed failed causing a catastrophic vacuum pump failure. The temperature in the tank was allowed to rise likely destroying all the embryos, sperm and eggs it contained. ReproMed, its medical director Dr. Alfonso P. Del Valle, other medical professionals at ReproMed, Praxair Canada Inc., distributor of cryogenic tanks, and U.S.-based cryogenic tank manufacturer Chart Industries, Inc. are named as defendants. The suit seeks damages for negligence, breach of contract, and breach of statutory duties. Gluckstein Lawyers filed the class action on behalf of a 39-year old woman who recently had 65 eggs retrieved which she entrusted to ReproMed. To protect her privacy she is identified only by her initials Q.Z. Q.Z. received the news that her eggs had been destroyed by email. The email, from Dr. Del Valle informed her that there had been a catastrophic vacuum pump failure. He indicated that the freezer which was supplied by Chart was defective. It is not currently known whether the increase in temperature which destroyed the eggs, sperm and embryos was caused by design defect, manufacturing problem, human error or a combination of factors. Q.Z. was heartbroken when she learned of that the failure. "I was in total shock," she said. "I cried in my car for a long period of time . . . . I trusted the clinic and the professionals. My hopes and dreams are destroyed." Q.Z. says the process of harvesting her eggs was not easy. Given her age, physical condition and current circumstances, she is not sure that she could go through it all again. "The impact on individuals and couples who invested time, money and emotional capital to protect a future family cannot be overstated." explains Q.Z.'s lawyer, Jordan Assaraf. "They placed their faith in a clinic to protect their future. The clinic failed them and has caused them irreparable harm." This lawsuit follows on the heels of two high profile failures of similar freezer tanks manufactured by Chart in the United States. Those failures affected hundreds of individuals who stored eggs and embryos at clinics in San Francisco and Cleveland and is the subject of multiple lawsuits in the U.S. Q.Z. hopes through the lawsuit to get answers and accountability. "For others, I hope what I do now can prevent this from happening again," she says. "I hope no other families would suffer what I have been suffering and be heartbroken, devastated and lost." Fertility clinics in Ontario are not government regulated. As such, there was no requirement for inspections or oversight which might have avoided this tragedy. Contact: Jordan Assaraf,Esq. Telephone: (416) 408-4252 ext 280 Website: www.repromed.gluckstein.com Email: assaraf@gluckstein.com [GN] REVOLUTION PREP: Fails to Pay All Wages, Staley Says ---------------------------------------------------- RACHELLE STALEY, individually and on behalf of all others similarly situated, the Plaintiff, v. REVOLUTION PREP, LLC, a California limited liability company; and DOES 1 through 100, the inclusive, the Defendant, Case No. BC713762 (Cal. Super. Ct., July 13, 2018), alleges that Defendants failed to pay all wages, provide all meal, authorize or permit all paid rest periods, fully reimburse work expenses, provide accurate wage statements, and timely all wages upon separation employment, pursuant to the California Labor Code. Revolution Prep is an American-based company that offers test preparation courses, including group classes, private tutoring, and online courses for the SAT and ACT standardized achievement tests.[BN] The Plaintiff is represented by: Lee R. Feldman, Esq. FELDMAN BROWNE OLIVARES, APC 12400 Wilshire Blvd, Suite 1100 Los Angeles, CA 90025 Telephone: (310)207 8500 Facsimile: (310)207 8515 E-mail: lee@fbo-law.com - and - Leonard H. Sansanowicz, Esq. SANSANOWICZ LAW GROUP, P.C. 1635 Pontius Avenue, Second Floor Los Angeles, CA 90025 Telephone: (323) 677 0200 Facsimile: (323) 549 0101 E-mail: leonard@law-slg.com S.J. DISTRIBUTERS: Gallardo Seeks Minimum and Overtime Wages ------------------------------------------------------------ MANUEL GALLARDO, individually and on behalf of other persons similarly situated, the Plaintiff, v. S.J. DISTRIBUTERS, INC., a California corporation; and DOES 1 through 30, the Defendants, Case No. BC713760 (Cal. Super. Ct., July 13, 2018), seeks to recover unpaid minimum and overtime wages, remedies for missed or late meal periods, remedies for missed rest periods, waiting time penalties in the form of continuation wages for failure to timely pay employees, inaccurate wage statement penalties, equitable relief, reasonable attorneys' fees and costs, pursuant to the California Labor Code. According to the complaint, the Defendant uses an electronic timekeeping system to record the actual start and end times of its hourly employees' work periods, including the time entered by Plaintiff and other similarly situated hourly employees. However, Defendant did not pay Plaintiff and other similarly situated hourly employees for all hours recorded. Instead, the Defendant reduced the time actually entered by its employees for payment purposes, resulting the underpayment of minimum and overtime wages. S.J. Distributors Inc. operates as a wholesaler of meat products and seafood. The Company offers pork, beef, lamb, vegetables, dry goods, and restaurant supplies.[BN] The Plaintiff is represented by: Jeremy F. Bollinger, Esq. Ari E. Moss, Esq. Dennis F. Moss, Esq. MOSS BOLLINGER LLP 15300 Ventura Blvd., Ste. 207 Sherman Oaks, CA 91403 Telephone: (310) 982 2984 Facsimile: (818) 963 5954 E-mail: jeremy@mossbollinger.com ari@mossbollinger.com dennis@mossbollinger.com SAN DIEGO HOUSE: Miliate Alleges Unlawful Sale of Motorcycles ------------------------------------------------------------- BLAKE MILIATE, individually and on behalf of all others similarly situated, the Plaintiff, v. SAN DIEGO HOUSE OF MOTORCYCLES, INC. dba NORTH COUNTY'S HOUSE OF MOTORCYCLES; and DOES 1 through 50, inclusive, the Defendant, Case No. 37-2018-00035131-CU-BT-CTL (Cal. Super. Ct., July 13, 2018), alleges that North County unlawfully sells and finances motorcycles in the State of California, in violations of the Rees-Levering Automobile Sales Finance Act and Consumers Legal Remedies Act.[BN] Attorneys for Blake Miliate and the Proposed Class: Bryan Kemnitzer, Esq. Mark A. Chavez, Esq. Kristin Kemnitzer, Esq. Adam J. Mcneile, Esq. KEMNITZER, BARRON & KRIEG, LLP 445 Bush St., 6th Floor San Francisco, CA 94108 Telephone: (415) 632 1900 Facsimile: (415) 632 1901 SEATTLE, WA: Jewish Cemetery Board Files $250K Claim for Damages ---------------------------------------------------------------- LaMonica Peters, writing for Komo News, reports that the Jewish Cemetery Board filed a $250,000 claim against the City of Seattle, blaming them for a series of damages imposed by the homeless. After years of cleaning up trash, needles, and vandalism at the cemetery, the Board has had enough, prompting the City to put a stop to it once and for all. "They throw their garbage over the fence, they throw their waste over the fence," said Ari Hoffman, a Jewish Cemetery Board member. "They're running drugs out of there, they're doing drug deals here. There's prostitution going here. They're also coming through here at night to hang out." Although the City has heard the Board's concerns, they have no intention of paying. "Under the Public Duty Doctrine, the City is generally not liable for the criminal acts of third parties that you identify," said a spokesperson for the City of Seattle. "Based on the City's understanding of the facts, none of the exceptions to the public duty doctrine apply here." This recent upset is not the first the Board has experienced in recent months. Hoffman says he requested that the area near the cemetery be changed to two-hour parking back in May. Council member Deborah Juarez agreed to the request in a letter, but the signs are still the same. Now that their claim has been denied by the City, Hoffman and the Board may file a class action lawsuit. "We know that there are other cemeteries, I've been contacted by them," said Hoffman. "There's other organizations, there's other businesses, there's other personal residences that have all been affected by this and we can prove it."[GN] SIBANYE GOLD: Pomerantz Law Files Class Action Lawsuit ------------------------------------------------------ Pomerantz LLP disclosed that a class action lawsuit has been filed against Sibanye ("Sibanye" or the "Company") (NYSE:SBGL) and certain of its officers. The class action, filed in United States District Court, Eastern District of New York, and docketed under 18-cv-03902, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Sibanye securities between April 7, 2017 through June 26, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Sibanye securities between April 7, 2017, and June 26, 2018, both dates inclusive, you have until August 27, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Sibanye operates as a precious metals mining company in South Africa, Zimbabwe, and the United States. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Sibanye's safety protocols were inadequate to prevent a high rate of worker death; (ii) Sibanye's mining supervisors routinely forced Company employees to work in unsafe and unlawful conditions; (iii) the foregoing issues would foreseeably subject Sibanye to heightened regulatory oversight; and (iv) as a result, Sibanye's public statements were materially false and misleading at all relevant times. On June 13, 2018, pre-market, The Mercury published an article entitled, "Mine puts profits before lives -- claim," stating that Sibanye's mining supervisors forced and intimidated miners to work in dangerous conditions. On this news, Sibanye's share price fell $0.07, or 2.6%, to close at $2.56 on June 13, 2018. On June 26, 2018, Bloomberg reported that "another worker was killed at [Sibanye's] Driefontein operation in South Africa, bringing the total deaths at the company's mines this year to 21." According to the article, Sibanye "accounts for nearly half of the 46 people reported killed at South African mines in 2018 and is already the subject of an investigation by the chief inspector of mines." On this news, Sibanye's share price fell $0.31, or 10.99%, to close at $2.51 on June 26, 2018. Then, on June 27, 2018, pre-market, Bloomberg reported that Citigroup Inc. cut its recommendation on Sibanye's stock to neutral from buy, citing the Company's "track record" from "an environmental, social and governance perspective, as well as the underlying investment risk that it holds[.]" On this news, Sibanye's share price fell $0.26, or 10.36%, to close at $2.25 on June 27, 2018. Robert S. Willoughby,Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Email: rswilloughby@pomlaw.com [GN] SOTHEBY'S INC: 9th Cir. Strikes Down California Royalties Law ------------------------------------------------------------- Jon Parton, writing for Courthouse News Service, reports that the Ninth Circuit ruled on July 6 that a California state law that required artists be paid royalties from auction sales only applies to art that was sold before the establishment of the federal Copyright Act. The decision comes from a seven-year-old class action lawsuit of artists who sued auction houses Sotheby's and Christie's, as well as auction website eBay. In April 2016, U.S. District Judge Michael Fitzgerald found that the Copyright Act preempted California's law. The California Resale Royalties Act, which went into effect Jan. 1, 1977, gives artists a right to 5 percent of the proceeds of the resale of their art if the transaction takes place in California or the seller is based in the state. The appellate panel affirmed the district court, finding that the Copyright Act, which went into effect in 1978, preempted the Golden State's law. Under the first-sale doctrine of the federal law, the owner of a copyrighted work is allowed to sell it without seeking permission of its creator. In the panel's decision, Circuit Judge Jay Bybee wrote that the state law is "designed precisely to alter the first sale doctrine" by giving artists an "unwaivable right" to a 5 percent royalty. "In short, the [state law] does not merely grant an additional right beyond what federal copyright law already provides but fundamentally reshapes the contours of federal copyright law's existing distribution right," the ruling states. The panel did find that relevant art sales between implementation of the state law and federal law, a period between Jan. 1, 1977 and Jan. 1, 1978, were subject to the state law. This was the second time the case appeared before the Ninth Circuit. In 2015, the court found that a clause of the state law violated the Commerce Clause that grants the federal government power to regulate interstate commerce.[GN] TACONIC PLASTICS: Judge Grants Class-Action Lawsuit --------------------------------------------------- ABC's News 10 reports that Weitz & Luxenberg disclosed its lawsuit against Taconic Plastics Limited over water contamination has been granted by a judge. The lawsuit alleges that the release of PFOA from Taconic's manufacturing facility contaminated the town's drinking water and the surrounding environment. "We are pleased that the court has recognized the significant of the case and agrees that it should proceed as a class action, said James Bilsborrow,Esq. an attorney in the Environmental and Consumer Protection Unit at Weitz & Luxenberg. "For years, the residents of Petersburgh were exposed to toxic chemicals in their drinking water and this ruling represents a major step forward in their quest for justice. We look forward to helping the community and holding Taconic accountable for the harm it has caused." The case has been certified as the first class-action case for PFOA in the state.[GN] TENNESSEE: Class Decertification Bid in "Wilson" Denied ------------------------------------------------------- In the case, MELISSA WILSON, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WENDY LONG, et al., Defendants, Case No. 3:14-cv-01492 (M. D. Tenn.), Judge William L. Campbell, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, denied the Defendants' Motion to Decertify the Class and Dismiss the Case. The Plaintiffs brought the action under 42 U.S.C. Section 1983 seeking declaratory and injunctive relief against the Defendants, alleging: (1) the Defendants unreasonably delayed adjudication of their applications for medical assistance through Medicaid (TennCare); and (2) failed to provide fair hearings on the delayed adjudications. In conjunction with their Complaint, the Plaintiffs asked the Court to preliminarily enjoin the Defendants from (1) continuing to deny their obligations under federal law to provide an adjudication of TennCare claims with "reasonable promptness," pursuant to 42 U.S.C. Section 1396a(a)(8); and (2) refusing to provide fair hearings on the delayed adjudications, as required by 42 U.S.C. Section 1396a(a)(3). On Sept. 2, 2014, pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), the Court certified the class of all individuals who have applied for Medicaid (TennCare) on or after Oct. 1, 2013, who have not received a final eligibility determination in 45 days (or in the case of disability applicants, 90 days), and who have not been given the opportunity for a fair hearing by the State Defendants after these time periods have run. Additionally, the Court entered a preliminary injunction, requiring the Defendants to provide the class members with a fair hearing on any delayed applications. The Defendants appealed the preliminary injunction order, and the Sixth Circuit affirmed. The Defendants filed the instant Motion to Decertify the Class and Dismiss the Case on Sept. 16, 2016. They argue the process employed by the Defendants and the Federal Centers for Medicare and Medicaid Services ("CMS") for adjudicating TennCare applications has changed dramatically since the Court certified the class in September 2014. Because of these changes, the Defendants argue, the Plaintiffs' class no longer has any members, and any claim TennCare applicants may have today bears no resemblance to the claims asserted by the named Plaintiffs in September 2014. Accordingly, the Defendants argue the class must be decertified because it no longer satisfies the numerosity requirement of Rule 23(a)(1) or the typicality requirement of Rule 23(a)(3). Judge Campbell agrees with the Plaintiffs' interpretation of the class certification. An individual who has applied for Medicaid and who has not received a final eligibility determination in 45 or 90 days satisfies the definition of a class member until that individual has a fair hearing or receives a final eligibility determination. Because the Plaintiffs have pointed to evidence that some Medicaid applications continue to be delayed, and because the Defendants have not provided evidence that individuals with delayed applications are immediately provided with a fair hearing or a final eligibility determination, members of the class necessarily exist. Accordingly, he finds the numerosity requirement of Rule 23 continues to be satisfied. The Judge also finds the typicality requirement of Rule 23 continues to be satisfied. When certifying the class, the Court found the declaratory and injunctive relief the Plaintiffs sought would apply to all Medicaid applicants. The Court certified a class of all individuals who have applied for Medicaid (TennCare) and who have not received a fair hearing on their delayed application. The certification did not specify that it applied only to individuals whose claims involved CMS. While the Defendants' representation that it has resolved its communication issues with CMS is certainly positive news, the Defendants have not presented evidence showing that all delays with Medicaid applications have been resolved. Accordingly, he finds the named Plaintiffs' claims continue to arise from the same practice or course that gives rise to the claims of other class members. For the foregoing reasons, Judge Campbell denied the Defendants' Motion to Decertify the Class and Dismiss the Case. The class definition remains unchanged, and the preliminary injunction remains in effect. The case remains set for a bench trial on Oct. 9, 2018, and absent extraordinary circumstances, no continuances will be granted. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/GfxZnD from Leagle.com. Melissa Wilson, April Reynolds, Mayan Said, S.P., by next friend J.P., K.P., by next friend T.V., T.V., in her own capacity, C.A., by next friend D.A., D.A., in his own capacity, S.V., by next friend M.M. & S.G., by next friend L.G., individually and on behalf of all others similarly situation, Plaintiffs, represented by Christopher E. Coleman -- ccoleman@tnjustice.org -- Tennessee Justice Center, Elizabeth Edwards, National Health Law Program, Emily C.R. Early, Southern Poverty Law Center, George Gordon Bonnyman, Jr. -- gbonnyman@tnjustice.org -- Tennessee Justice Center, James M. Knoepp, Southern Poverty Law Center Immigrant Justice Project, Jane Perkins, National Health Law Program, Micah West, Southern Poverty Law Center, Michele M. Johnson, Tennessee Justice Center, Inc., Samuel Brooke, Southern Poverty Law Center Immigrant Justice Project & Sara Zampierin, Southern Poverty Law Center Immigrant Justice Project. Mohammed Mossa, Plaintiff, represented by Christopher E. Coleman, Tennessee Justice Center, Elizabeth Edwards, National Health Law Program, Emily C.R. Early, Southern Poverty Law Center, George Gordon Bonnyman, Jr., Tennessee Justice Center, James M. Knoepp, Southern Poverty Law Center Immigrant Justice Project, Jane Perkins, National Health Law Program, Micah West, Southern Poverty Law Center, Michele M. Johnson, Tennessee Justice Center, Inc., Samuel Brooke, Southern Poverty Law Center Immigrant Justice Project & Sara Zampierin, Southern Poverty Law Center Immigrant Justice Project. Larry B. Martin, in his official capacity as Commissioner of the Tennessee Department of Finance and Administration & Dr. Raquel Hatter, Tennessee Commissioner of Human Services, Defendants, represented by Brian Barnes, Cooper & Kirk, PLLC, Carolyn E. Reed, Tennessee Attorney General's Office, Linda A. Ross, Tennessee Attorney General's Office, Michael W. Kirk -- mkirk@cooperkirk.com -- Cooper & Kirk, Nicholas R. Barry, Tennessee Attorney General's Office & Nicole J. Moss -- nmoss@cooperkirk.com -- Cooper & Kirk. Wendy Long, Defendant, represented by Brian Barnes, Cooper & Kirk, PLLC, Carolyn E. Reed, Tennessee Attorney General's Office, Linda A. Ross, Tennessee Attorney General's Office, Michael W. Kirk, Cooper & Kirk, Nicholas R. Barry, Tennessee Attorney General's Office & Nicole J. Moss, Cooper & Kirk. United States of America, Interested Party, represented by Mark H. Wildasin, Office of the United States Attorney. THAMES RIVER: Robert Reardon Wins Class Action Case --------------------------------------------------- Robert Storace, writing for Connecticut Law Tribune, reports that New London attorney Robert Reardon Jr.Esq. has worked since 2003 to get tenants out of the rat-infected Thames River Apartments. He succeeded this week, with all families in the 124-unit complex receiving federal vouchers to move into better housing. When New London attorney Robert Reardon Jr.Esq. got a phone call in 2003 about a serious slip and fall in a city apartment complex, little did he know the case would turn into a class action that would last until 2018. For Reardon, president of the Reardon Law Firm, the case of Nicole Majette and her neighbors in the Thames River Apartments became personal. After seeing what Reardon called "deplorable living conditions" in the three buildings that made up the complex, he and his firm committed to not only seeing the case through, but seeing it through pro bono. Majette was a single working mother who slipped and fell on human feces in her apartment complex hallway at Thames River, her attorney told the Connecticut Law Tribune on July 6. She fractured her right arm, needing surgery. She also now has permanent nerve damage to that arm. Reardon said he was shocked, stunned and angry at what he saw when he visited for a tour soon after Majette reached out to his firm. "It was a place for drug dealers and the homeless to go. Tenants locked all doors to the apartment, but there was no lock on the exterior entrances to the buildings, and therefore in the winter all the drug addicts and homeless would sleep in the hallways," Reardon said. "There were no bathrooms in the hallways, so they would relieve themselves in the hallway at night. I also saw rats, mice and cockroaches in those hallways." In 2008, Reardon settled Majette's personal injury case for $1 million. But when he returned to his law office after first visiting the complex in 2003, Reardon and his colleagues agreed on one thing: They had an obligation as members of the New London community to do something. The tenants did not have the funds to hire an attorney, so the small firm committed to taking on the project for free for as long as it took. "We've been fortunate to be a law firm in New London through generations," said Reardon, who has practiced in the state for more than 40 years. "This firm has been in existence here since 1920. We know New London has been good to us and we felt it important to do something for our community." At first, Reardon said he thought by contacting the city, the health department and the New London Housing Authority he might make some progress. That, Reardon said, ended up not being the case. "At the beginning, the position of the Housing Authority was 'This is none of your business and we will handle our own affairs,"' Reardon said. Donn Swift,Esq. the housing authority's longtime attorney and a lawyer with New Haven's Lynch, Traub, Keefe & Errante, was on vacation on July 6 and could not be reached for comment. After not seeing any progress, Reardon decided to file a class action lawsuit in July 2006. That class action led to a court- stipulated agreement in 2014 that mandates new homes for the tenants. The three buildings housed 124 units. While the court mandated new homes, finding those homes was another story, Reardon said. "The stipulation was not being followed," Reardon said. The housing authority was supposed to start construction by November 2017, but that never happened. One bump in the road occurred when plans to move the families to the Cedar Grove avenue neighborhood fell through as neighbors complained to the city about having low-income housing in their backyard. The next plan, Reardon said, was to seek out federal Housing and Urban Development funds. HUD eventually agreed, with the help of Reardon's firm and new members of the housing authority, to provide vouchers to relocate families so they could rent from private residences in New London and elsewhere. Betsy Gibson, chairwoman of the housing authority since 2016, called her first visit two years ago to Thames River "a life- changing event." "You can read about it all you want in the paper, but when you actually see [the apartment complex] firsthand, it's something else," Gibson told the Connecticut Law Tribune on July 6. "It was obvious something had to be done. The housing authority did not have the ability to handle fixing it up. If we could have handled it, we would have." Periodically this year, families were moving out of Thames River and into better housing. The last two tenants left on July 3, Reardon said. The buildings, which were first erected in the 1960s, were then boarded up. With class members now housed in improved accommodations, Reardon officially withdrew the lawsuit on July 5, closing the book on the 15-year saga. For the last four years the case was assigned to Judge David Sheridan in the complex litigation division in Hartford. It might not have closed when it did, if not for Sheridan, Reardon said, "For almost four years, Judge Sheridan followed the case on a daily basis and was always aware of what was happening," the attorney said. "He had a status conference every two weeks in which he required the mayor to be present, as well as the director of the housing authority. His commitment to the case was invaluable. He was involved in hundreds of hours of meetings, status conference calls and court hearings." Reardon said he celebrated on July 5 with his staff by ordering Subway lunches for everyone.[GN] TIGER NATURAL: Court Allows Amendment to "Fishman" Complaint ------------------------------------------------------------ The United States District Court for the Northern District of California granted Plaintiffs' Motion for Leave to Amend Complaint in the case captioned EMILY FISHMAN and SUSAN FARIA, individually and on behalf of others similarly situated, Plaintiffs, v. TIGER NATURAL GAS, INC. and COMMUNITY GAS CENTER INC., Defendants, No. C 17-05351 WHA (N.D. Cal.). The Defendant called the plaintiffs to solicit them to buy natural gas through Tiger's price protection program. During those sales calls, the defendants represented that Tiger customers would be charged a variable rate for natural gas based on the market price, but with a price cap of $0.69 per therm. The Plaintiffs allege that defendants made several misrepresentations during these calls which, among other things, violated PG&E Gas Rule 23. The proposed third amended complaint seeks to amend the plaintiffs' third-party beneficiary contract claims and add claims for violations of PG&E Gas Rule 23 and regulations concerning core transport agents. In California, a person seeking to enforce a contract as a third party beneficiary must plead a contract which was made expressly for his or her benefit and one in which it clearly appears that he or she was a beneficiary. The Plaintiffs argue that the consumer protection provisions incorporated into the CGAS Agreement demonstrate the parties' intent that the contract benefit consumers (including the plaintiffs). In response, Tiger argues that the four corners of the CGAS Agreement indicate that the contract was made for PG&E's own benefit. This order finds the plaintiffs' position more convincing. To be sure, absent the agreement's incorporated attachments, the contract would primarily concern the allocation of pipeline and storage capacity and the payment of associated costs. But Tiger also agreed to abide by the terms of Gas Rule 23 and Schedule G-CT, which were incorporated by reference. These, in turn, contain several consumer protection provisions, including a prohibition that Tiger not with dishonest, fraudulent, or deceitful intent act to disadvantage customers. Gas Rule 23 also explicitly contemplates consumers bringing complaints if they believe that Tiger violated these consumer protection provisions. It is hard to see how, as Tiger suggests, Gas Rule 23 inures only to the benefit of PG&E. Clearly, consumers were intended beneficiaries of these provisions. The allegations in the plaintiffs' proposed complaint are therefore sufficient to bring a claim for breach of contract as third-party beneficiaries. A full-text copy of the District Court's June 4, 2018 Order is available at https://tinyurl.com/yabbzc4h from Leagle.com. Emily Fishman, individually and on behalf of all others similarly situated & Susan Faria, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel L. Balsam - - calbar@danbalsam.com -- The Law Offices of Daniel Balsam, Jacob N. Harker -- harkerjacob@gmail.com -- Law Offices of Jacob Harker & Kimberly Ann Kralowec -- kkralowec@kraloweclaw.com -- Kralowec Law, P.C. Tiger Natural Gas, Inc., an Oklahoma corporation, Defendant, represented by Janet Chung -- Janet.Chung@hklaw.com -- Holland and Knight LLP, John Andrew Canale -- John.Canale@hklaw.com -- Holland and Knight LLP, Leah E. Capritta -- Leah.Capritta@hklaw.com -- Holland & Knight LLP, Thomas Drew Leland -- Thomas.Leland@hklaw.com -- Holland and Knight LLP & Vince Lee Farhat -- Vince.Farhat@hklaw.com -- Holland and Knight LLP. TITLEMAX OF TENNESSEE: Can Compel Arbitration in "Curatola" Suit ---------------------------------------------------------------- In the case, VINCENT CURATOLA, INDIVIDUALLY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. TITLEMAX OF TENNESSEE, INC. and TMX FINANCE OF TENNESSEE, INC., Defendants, Case No. 1:16-cv-01263-JDB-egb (W.D. Tenn.), Judge J. Daniel Breen of the U.S. District Court for the Western District of Tennessee, Eastern Division, rejected the Magistrate Judge Edward Bryant's order denying the Defendants' motion to stay the action and to compel Curatola to submit his claims to individual arbitration. On Oct. 4, 2016, the Plaintiff, a former store manager for TitleMax in Milan, Tennessee, individually filed an "opt-in" collective action under the Fair Labor Standards Act ("FLSA") on behalf of himself and all persons who, at any time during the past three years and up until the date of entry of judgment, are or were employed by Defendants and who worked overtime without compensation. On Nov. 18, 2016, the Defendants filed their motion to stay and to compel individual arbitration, which the Court referred to Magistrate Judge Bryant. On Dec. 1, 2016, Curatola filed a response, and TitleMax replied four days later. Following a hearing on June 1, 2017, the Magistrate Judge denied the Defendants' motion, concluding that the Sixth Circuit's finding in NLRB v. Alternative Entertainment that the right to concerted activity is a substantive right, and the National Labor Relations Board ("NLRB")'s decision in On Assignment, which is due Chevron deference, that requiring employees to opt out of an arbitration agreement that otherwise waives the right to collective action interferes with an employee's exercise of rights provided under the National Labor Relations Act control. Following the Defendants' June 22, 2017 objections to the magistrate judge's order, the Plaintiff submitted a response, to which TitleMax replied. Additionally, the parties each filed notices of supplemental authority, after two district courts reached near-opposite conclusions regarding the applicability of Alternative Entertainment to FLSA claims. The parties primarily dispute the enforceability of a class and collective action waiver in their Aug. 3, 2015 Arbitration Agreement ("AA") due to its 60-day opt-out language, as well as whether the collective action waiver is severable or renders the entire AA unenforceable. On May 21, 2018, after the U.S. Supreme Court issued its opinion in Epic Sys. Corp. v. Lewis, the Defendants filed a notice of the decision, asserting that Lewis decided the issues before the court in favor of TitleMax by upholding the enforceability of class and collective waivers in arbitration agreements and by abrogating Alternative Entertainment. Judge Breen finds that the central disagreement pertains to the third prong of the Stout v. J.D. Byrider framework: whether Congress intended the Plaintiff's federal statutory claim under the FLSA to be non-arbitrable and thus whether the AA's collective action waiver, barring the Plaintiff's ability to bring a collective action, is enforceable. The first and second steps under Stout are clearly met, and neither party disputes that they agreed to arbitrate or that the scope of the AA covers the present dispute. The AA indicates 1) that it reaches claims for wages and other compensation, for violations of any federal or state law, and for breach of contract, thus covering the FLSA and unjust enrichment claims; 2) that it is supported by consideration; and 3) that both Curatola and TitleMax signed it. Furthermore, because all of the claims in the action are subject to arbitration, the Judge says he needs not address the fourth prong of the Stout framework. Therefore, as requested in the Defendants' motion, the case will be stayed, and the Plaintiff will be compelled to arbitrate his claims individually. In light of the foregoing, Judge Breen sustained TitleMax's objections, rejected the magistrate judge's order, and granted the Defendants' Motion to Stay & Compel Individual Arbitration. Pursuant to 9 U.S.C. Section, the case is stayed pending arbitration. In accordance with the AA, the Plaintiff will proceed individually to arbitration on his claims under the FLSA and for unjust enrichment. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/3FvQV3 from Leagle.com. Vincent Curatola, Plaintiff, represented by Emily S. Alcorn, GILBERT RUSSELL MCWHERTER SCOTT BOBBITT PLC. TitleMax of Tennessee, Inc., Defendant, represented by Timothy B. McConnell -- tmcconnell@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. & Zachary B. Busey -- zbusey@bakerdonelson.com -- BAKER DONELSON. TMX Finance of Tennessee, Inc., Defendant, represented by Zachary B. Busey -- zbusey@bakerdonelson.com -- BAKER DONELSON. TOM'S SHOES LLC: "Mussleman" Disputes Overtime Pay Computation -------------------------------------------------------------- Teena Mussleman, individually and on behalf of all others similarly situated, Plaintiff, v. Tom's Shoes, LLC and Does 1- 100, inclusive, Defendants, Case No. 18-cv-04143, (C.D. Cal., May 17, 2018), seeks to recover overtime compensation, liquidated damages (or, alternatively, interest), and attorneys' fees under the Fair Labor Standards Act, the California Labor Code and the California Business and Professions Code. Tom's Shoes -- https://www.toms.com/ -- operates an apparel store in Los Angeles where Mussleman worked as a non-exempt worker. Toms allegedly failed to include commissions, non-discretionary bonuses and other items of compensation when determining their employees' regular rate of pay for purposes of overtime. [BN] Plaintiff is represented by: Robert J. Wasserman, Esq. William J. Gorham, Esq. Nicholas J. Scardigli, Esq. Vladimir J. Kozina, Esq. MAYALL HURLEY P.C. 2453 Grand Canal Boulevard Stockton, CA 95207-8253 Telephone: (209) 477-3833 Facsimile: (209) 473-4818 Email: rwasserman@mayallaw.com wgorham@mayallaw.com nscardigli@mayallaw.com vjkozina@mayallaw.com TRINITY LOGISTICS: Court Denies Bid to Dismiss FCRA Suit -------------------------------------------------------- In the case, JANE DOE, Individually and on behalf of all others similarly situated, Plaintiffs, v. TRINITY LOGISTICS, INC., et al., Defendants, Civil Action No. 17-053-RGA (D. Del.), Judge Richard G. Andrews of the U.S. District Court for the District of Delaware adopt the Magistrate Judge's Report and Recommendation recommending that (i) the Defendants' motions to dismiss and/or strike class claims be denied; (ii) Defendant Trinity Logistics' motion to dismiss the individual claim be granted, and (iii) the Plaintiff's motion to strike the Defendant Pinkerton's motion to join motion to dismiss, or in the alternative, deny motion and construe as a reply be denied. The Plaintiff brings the action on behalf of herself and of the "Notice Class" of which she is a member, against Trinity Logistics, Inc. and Pinkerton Consulting and Investigations for violations of the Federal Fair Credit Reporting Act ("FCRA"). She alleges the Defendants violated the FCRA by failing to provide pre-adverse action notice before Trinity terminated her employment, relying on a consumer report generated by and provided to Trinity by Pinkerton. The Plaintiff applied for a job at Trinity on Aug. 6, 2016 by completing an employment application, consumer report authorization, and release form. She was offered a position at Trinity and accepted the position on Aug. 22, 2016. As part of a contractual relationship between the Defendants, Pinkerton generates employment-purposed consumer reports for Trinity to use in its hiring process. On Aug. 25, 2016, Trinity received a consumer report from Pinkerton regarding the Plaintiff that was "flagged" as containing a criminal record. The criminal record was inaccurate, as it contained a criminal record from Maryland that was expunged four years before the consumer report was furnished. On Aug. 26, 2016, the Plaintiff was notified that Trinity had received a consumer report that contained a criminal conviction, and although she explained that the report was inaccurate, the Plaintiff was still terminated the same day. In her second amended complaint, the Plaintiff filed class action and individual claims against both the Defendants. The second amended complaint alleges her termination was an adverse action, and pursuant to 15 U.S.C. Section 1681b(b)(3)(A)(i) and (ii), the Defendants had a duty to provide the Plaintiff with pre-adverse action notice, but they did not provide her with a copy of the consumer report or a Summary of Rights prior to her termination. The Plaintiff further alleges Pinkerton violated section 1681 (k)(a)(1) for failure to provide "at the time" notice, Section 1681 c(a) for providing obsolete information, Section 1681 e(a) for providing employment-purposed consumer report without a permissible purpose and Section 1681 e(b) for failure to ensure maximum possible accuracy. Finally, she claims Trinity violated Section 1681 b(t) for obtaining or using an employment-purposed consumer report without a permissible purpose. The Magistrate Judge has filed a Report and Recommendation, which recommends the Defendants' motions to dismiss and/or strike class claims be denied, Defendant Trinity Logistics' motion to dismiss the individual claim be granted, and the Plaintiff's motion to strike the Defendant Pinkerton's motion to join motion to dismiss, or in the alternative, deny motion and construe as a reply be denied. The Plaintiff filed one objection and the Defendants each filed objections to which the Plaintiff has responded. The Plaintiff moves to strike a sentence in the Report and Recommendation regarding the legal standard used in the analysis of 15 U.S.C. section 1681b(b)(3). Judge Andrews finds this objection as irrelevant as it has no bearing on any issue presently in dispute. Defendant Pinkerton makes two objections to the Magistrate Judge's conclusion that Pinkerton's motions to dismiss fail as to Section 1681b(b)(3)(A)(i) and (ii), and that the Plaintiff cannot obtain actual damages under the class claims. The Judge finds that Pinkerton claims that Trinity did not delegate any employment decision-making responsibility to Pinkerton, and thus Pinkerton cannot be considered a "user" of the consumer report pursuant to the aforementioned provisions. Also, in the Plaintiff's response to Pinkerton's objection, she states she is not claiming actual damages under the class claims. Thus, Pinkerton's objection is moot. Defendant Trinity makes one objection to the Magistrate Judge's conclusion that Trinity's motions to dismiss fail as to Section 1681b(b)(3)(A)(i) and (ii). Trinity argues the Plaintiff's class claims should be stricken because she should not be allowed to claim actual damages from class action claims. Because the Plaintiff has stated in her response to Trinity's objections that she is not claiming actual damages under the class claims, Trinity's objection is moot. For these reasons, Judge Andrews overruled the Plaintiff's and the Defendants' objections. He adopted the Report and Recommendation. Accordingly, he denied the Defendants' motions to dismiss and/or strike class claims; granted Defendant Trinity's motion to dismiss the individual claim; and denied the Plaintiff's motion to strike Defendant Pinkerton's motion to dismiss, or in the alternative, deny motion and construe as a reply. A full-text copy of the Court's June 5, 2018 Memorandum Order is available at https://is.gd/IMFMeo from Leagle.com. Jane Doe, Individually and on behalf of all others similarly situated, Plaintiff, represented by Mary F. Higgins -- questions@letsbelegal.com -- Law Office of Mary Higgins & Susan M. Rotkis -- susan@clalegal.com -- Consumer Litigation Associates, PC, pro hac vice. Trinity Logistics, Inc., a Delaware Corporation, Defendant, represented by Michael C. Heyden, Jr. -- mheyden@grsm.com -- Gordon Rees Scully Mansukhani LLP. Pinkerton Consulting and Investigations, LLC, a Delaware Limited Liability Company, Defendant, represented by Melissa Lynn Rhoads -- m.rhoads@tighecottrell.com -- Tighe & Cottrell, P.A.. TROJAN HORSE: Settlement in "Longo" Suit Has Final Approval ----------------------------------------------------------- In the case, GARIBALDI E. LONGO, ALLEN F. HESTER, CARL W. SWANSON, and STEVEN L. WHITE, individually and on behalf all others similarly situated, Plaintiffs, v. TROJAN HORSE LTD.; GLEN BURNIE HAULING INC.; CAPITOL EXPRESSWAYS, INC.; BDH LOGISTICS LLC; BRIAN HICKS; TROJAN HORSE LTD. 401 (K) PLAN; and ASCENSUS TRUST COMPANY, Defendants, Civil Action No. 5:13-cv-418-BO (E.D. N.C.), Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina granted the Parties' joint motion for final approval of the settlement pursuant to the terms of a Settlement Agreement dated Feb. 7, 2018. The Judge ordered that the Settlement Fund monies, service awards, and attorney's fees and costs called for in the Agreement be paid and provided according to the Agreement. He ordered and directed the Independent Fiduciary to implement the Agreement and perform its duties under it. The Releasing Parties release the Released Claims as to the Released Parties. The Independent Fiduciary will have final authority to determine the Allocated Share of the Settlement Fund to each Class Member and with respect to payments or distributions, all questions not resolved by the Agreement will be resolved by the Independent Fiduciary in its sole and exclusive discretion. Upon review of the Agreement, and of the Class Counsel's motion for Approval of Attorney's Fees, Costs and Service Awards, the Judge finds that the agreed upon fees and costs are reasonable and the motion is granted. He approved the amounts Ascensus agreed to pay the Class Counsel and ordered reasonable fees in the amount of $915,710.26 and costs in the amount of 10,295.26 as set forth in the Agreement. Each named Plaintiff will be awarded a $5,000 service award to be paid out of the Settlement Fund. Upon entry of the Order, all the Class Members will be bound by the Agreement and by the Final Order and Judgment. A full-text copy of the Court's June 5, 2018 Final Order and Judgment is available at https://is.gd/gSbtwL from Leagle.com. Garibaldie E. Longo, Allen F Hester, Carl W Swanson & Steven L White, individually and on behalf all others similarly situated, Plaintiffs, represented by Mark S. Fistos, Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L., S. Michael Dunn -- sdunn@emanuelanddunn.com -- Emanuel & Dunn, Steven R. Jaffe, Steven R. Jaffe, P.A. & Stephen A. Dunn -- sdunn@emanuelanddunn.com -- Emanuel & Dunn. Trojan Horse, Ltd., Defendant, pro se. Glen Burnie Hauling, Inc., Defendant, pro se. Trojan Horse LTD 401(k) Plan, Defendant, pro se. Brian Hicks, Defendant, pro se. Ascensus Trust Company, c/o CT Corporation System, its registered agent, Defendant, represented by L. P. Hornthal, Jr., Hornthal, Riley, Ellis & Maland, LLP, Robert H. Bernstein -- bernsteinrob@gtlaw.com -- Greenberg Traurig, LLP & L. Phillip Hornthal, III, Hornthal, Riley, Ellis & Maland, LLP. Ascensus Trust Company, c/o CT Corporation System, its registered agent, Cross Claimant, represented by L. P. Hornthal, Jr., Hornthal, Riley, Ellis & Maland, LLP, Robert H. Bernstein, Greenberg Traurig, LLP & L. Phillip Hornthal, III, Hornthal, Riley, Ellis & Maland, LLP. UNITED STATES: Certiorari Granted in Pregnant Minor's Suit ---------------------------------------------------------- The Supreme Court of the United States issued an Opinion vacating the Court of Appeals' Order En Banc and directing the dismissal of the Individual Claims as moot in the case captioned ALEX M. AZAR, II, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J. D. No. 17-654. (U.S.). Respondent Rochelle Garza, Doe's guardian ad litem, filed a putative class action on behalf of Doe and all other pregnant unaccompanied minors in ORR custody challenging the constitutionality of ORR's policy. Jane Doe, a minor, was eight weeks pregnant when she unlawfully crossed the border into the United States. She was detained and placed into the custody of the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services. ORR placed her in a federally funded shelter in Texas. After an initial medical examination, Doe requested an abortion. But ORR did not allow Doe to go to an abortion clinic. Absent emergency medical situations, ORR policy prohibits shelter personnel from taking any action that facilitates an abortion without direction and approval from the Director of ORR. The District Court issued a temporary restraining order allowing Doe to obtain an abortion immediately. The next day, a panel of the Court of Appeals for the District of Columbia Circuit vacated the relevant portions of the temporary restraining order. Noting that the Government had assumed for purposes of this case that Doe had a constitutional right to an abortion, the panel concluded that ORR's policy was not an undue burden. The Court of Appeals, sitting en banc, vacated the panel order and remanded the case to the District Court. The same day, Garza sought an amended restraining order. Garza's lawyers asked the District Court to order the Government to make Doe available in order to obtain the counseling required by state law and to obtain the abortion procedure. The District Court agreed and ordered the Government to act accordingly. Doe's representatives scheduled an appointment for the next morning and arranged for Doe to be transported to the clinic on October 25 at 7:30 a.m. The District Court agreed and ordered the Government to act accordingly. The Government planned to ask this Court for emergency review of the en banc order. Believing the abortion would not take place until October 26 after Doe had repeated the state-required counseling with a new doctor, the Government informed opposing counsel and this Court that it would file a stay application early on the morning of October 25. The details are disputed, but sometime over the course of the night both the time and nature of the appointment were changed. The doctor who had performed Doe's earlier counseling was available to perform the abortion after all and the 7:30 a.m. appointment was moved to 4:15 a.m. At 10 a.m., Garza's lawyers informed the Government that Doe had the abortion this morning. The abortion rendered the relevant claim moot, so the Government did not file its emergency stay application. Instead, the Government filed this petition for certiorari. The petition for a writ of certiorari is granted. The Court vacates the en banc order and remands the case to the United States Court of Appeals for the District of Columbia Circuit with instructions to direct the District Court to dismiss the relevant individual claim for injunctive relief as moot. A full-text copy of the District Court's June 4, 2018 Opinion is available at https://tinyurl.com/ybuhtkkk from Leagle.com. Noel Francisco, Solicitor General, United States Department of Justice -- SupremeCtBriefs@USDOJ.gov -- Attorney for Petitioner, Alex M. Azar, II, Secretary of Health and Human Services, et al. Carter G. Phillips, Sidley Austin LLP -- cphillips@sidley.com -- Attorney for Respondent, Rochelle Garza, as Guardian ad Litem to Unaccompanied Minor J.D. Scott A. Keller, Office of the Attorney General, Solicitor General -- scott.keller@oag.texas.gov -- for The States of Texas, et al. Andrew L. Schlafly -- aschlafly@aol.com -- for Legal Center for Defense of Life. UNITED STATES: Trump Seeks More Time to Reunify Migrant Families ---------------------------------------------------------------- Richard Gonzales, writing for WGBH, reports that the Trump administration is asking a federal judge for an extension of the deadline set to reunify all of the migrant parents who were separated from their children at the U.S.-Mexico border. In court documents filed late on July 5, the administration says it is working "diligently" and dedicating "immense resources and effort" to comply with a court order to reunify the families. U.S. District Judge Dana M. Sabraw in San Diego, Calif., ordered the government to return children under the age of 5 to their parents by July 17. Older minors must be reunified with their parents by July 26. But in the court filings, the government says it "may need clarification on or some relief from certain parts of the order, so that Defendants can safely reunite families." Judge Sabraw has scheduled a telephonic status conference on July 6 afternoon with lawyers from the Justice Department and also from the American Civil Liberties Union, the group that sued the government in a class-action lawsuit over family separations. That lawsuit was filed even before Attorney General Jeff Sessions,Esq. announced the "zero tolerance" policy in April, promising to prosecute all illegal border crossers. The administration's request for more time comes a day after Health and Human Services Secretary Alex Azar told reporters that the government knows the identities and location of all the minors under the department's care and will comply with the court order. Azar also called Sabraw's deadlines "extreme." The government's court documents describe an extensive and painstaking effort to collect information between the Departments of Homeland Security and Health and Human Services; verify the parentage; and assess the parents' "fitness" to receive their children. The government is using DNA testing to verify that parents are related to the children they claim. In his comments on July 5, Azar said that "under 3,000" minors were separated from their parents. The court documents say that the government has identified "approximately 101 minors under age 5" under the care of HHS's Office of Refugee Resettlement.[GN] US BANK NA: Robinson Sues Over Excessive Bank Charges ----------------------------------------------------- Kevin Robinson and Angela Hooper, on behalf of themselves and all others similarly situated, Plaintiffs, v. US Bank, N.A., Defendant, Case No. 18-cv-01059, (C.D. Cal., May 16, 2018), seeks restitution of all relevant fees illegally paid to US Bank, disgorgement of the ill-gotten gains derived by US Bank, actual, statutory, punitive and exemplary damages, pre-judgment interest, costs and disbursements assessed in connection with this action, including reasonable attorneys' fees and such other relief resulting from breach of contract and breach of the covenant of good faith and fair dealing and violation of the California Unfair Competition Law under the Business and Professions Code. US Bank is a national bank with its headquarters and principal place of business located in Cincinnati and is in the business of providing retail banking services. US Bank, N.A. is alleged of assessing two out-of-network Automated Teller Machine fees, out-of-network ATM withdrawals preceded by a balance inquiry, and assessing overdraft fees on transactions that did not actually overdraw the account. [BN] Plaintiff is represented by: Jeffrey Kaliel, Esq. Sophia Gold, Esq. KALIEL PLLC 1875 Connecticut Ave. NW 10th Floor Washington, DC 20009 Tel: (202) 350-4783 Email: jkaliel@kalielpllc.com sgold@kalielpllc.com - and - Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 2000 L Street, N.W., Suite 808 Washington, DC 20036 Tel: (202) 973-0900 Email: hzavareei@tzlegal.com - and - Jeff Ostrow, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 W. Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 Email: edelsberg@kolawyers.com ostrow@kolawyers.com - and - Todd D. Carpenter, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 402 W Broadway, 29th Floor San Diego, CA 92101 Phone: (619) 756-6994 Fax: (619) 756-6991 Email: tcarpenter@carlsonlynch.com VECTREN CORP: Monteverde & Associates Files Class Action Lawsuit ---------------------------------------------------------------- Notice is hereby given that Monteverde & Associates PC has filed a class action lawsuit in the United States District Court for the Southern District of Indiana, Case No. 3:18-cv-00113, on behalf of shareholders of Vectren Corporation ("Vectren" or the "Company")(NYSE: VVC) who held Vectren shares and have been harmed by Vectren and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to CenterPoint Energy, Inc. (the "Proposed Transaction"). In connection with the Proposed Transaction, Vectren shareholders are only expected to receive $72.00 in cash for each share of Vectren they own. The complaint questions the fairness of the consideration offered to the Company's shareholders and alleges that the proxy statement regarding the Proposed Transaction (the "Proxy") fails to disclose material information that is necessary for shareholders to properly assess the fairness of the Proposed Transaction, thereby rendering certain statements in the Proxy incomplete and misleading. If you wish to serve as lead plaintiff, you must move the court no later than 60 days from the date of this notice. Any member of the putative class may move the court to serve as lead plaintiff through counsel of their choice or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com [GN] VILLAGE OF FOX LAKE: Filenko Dismissed from "Willoughby" Suit ------------------------------------------------------------- In the case, RAYMOND WILLOUGHBY, DAMIEN WARD, and DAN COOPER, Plaintiffs, v. VILLAGE OF FOX LAKE, COMMANDER GEORGE FILENKO, JOHN DOE POLICE OFFICERS, JOHN DOE DEPUTY SHERIFFS, JOHN DOE STATE POLICE AGENTS, and JOHN DOE FEDERAL BUREAU OF INVESTIGATION AGENTS, Defendants, Case No. 17 CV 2800 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) granted Filenko's motion to dismiss Count I of the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and (ii) denied the Plaintiffs' motion for class certification. In the action, the Plaintiffs allege that their Fourth Amendment rights were violated when they were arrested and detained in conjunction with the investigation that occurred after the death of Charles Joseph Gliniewicz, who was a police lieutenant for the Village of Fox Lake, Illinois. It was later revealed that Gliniewicz had staged his suicide to look like a homicide. It is alleged that prior to taking his own life, Gliniewicz sent a radio transmission to the Village police department falsely stating that he was in pursuit of three individuals, two "male whites" and one "male black." On Dec. 21, 2017, the Court issued a Memorandum Opinion and Order (i) denying the Village's motion to dismiss Count II of the Second Amended Complaint, and (ii) granting defendant Filenko's motion to dismiss Count I of the Second Amended Complaint. With leave of the Court, the Plaintiffs filed a Third Amended Complaint. It contains the same claims the Plaintiffs previously asserted: a claim under 42 U.S.C. Section 1983 for unlawful search and seizure in violation of the Fourth Amendment (Count I) and a Monell claim against the Village (Count II). The only difference between the Second and Third Amended Complaints is the addition of several paragraphs pertaining to Filenko, an attempt to cure the deficiencies the Court previously discussed in its memorandum opinion. Filenko moves to dismiss the claim asserted against him. The Plaintiffs move for class certification. Judge Guzman finds that the Plaintiffs fail to submit evidence of a sufficient number of individuals who were arrested or detained in connection with the investigation during the five-day period the Plaintiffs cite and who are not included in the exceptions to their class definition (or evidence from which an estimate can reasonably be made), they fail to meet their burden of demonstrating numerosity. They also fail to meet their burden of showing commonality and predominance. Furthermore, the Plaintiffs submit no evidence that supports their argument that common issues predominate because all putative class members were arrested or detained pursuant to the same "narrow" and "specific" unconstitutional policy. They're not consistent even in identifying that alleged policy. Having concluded that plaintiffs fail to meet their burden of demonstrating numerosity, commonality, and predominance, the Judge holds he needs not discuss the remaining Rule 23 requirements. The Plaintiffs' claims must proceed as personal rather than class litigation. For these reasons, Judge Guzman granted Filenko's motion to dismiss the Third Amended Complaint. The complaint is dismissed without prejudice as to Filenko. The Judge denied the Plaintiffs' motion for class certification. A status hearing is set for June 14, 2018, at 9:30 a.m. to discuss the next steps in the case. A full-text copy of the Court's June 6, 2018 Memorandum Opinion and Order is available at https://is.gd/amAPge from Leagle.com. Raymond Willoughby, Individually, and on behalf of all Similarly Situated Persons, Damien Ward, Individually, and on behalf of all Similarly Situated Persons & Dan Cooper, Individually, and on behalf of all Similarly Situated Persons, Plaintiffs, represented by Gregory E. Kulis, Gregory E. Kulis and Associates, Ltd., Brian M. Orozco, Gregory E. Kulis & Associates, Ltd. & Monica Ghosh, Gregory E. Kulis & Associates, Ltd. Village of Fox Lake, a Municipal Corporation, Defendant, represented by Benjamin Matthew Jacobi -- bjacobi@okgc.com -- O'Halloran Kosoff Geitner & Cook, LLC, Clifford Gary Kosoff -- ckosoff@okgc.com -- O'Halloran, Kosoff, Helander & Geitner, P.C. & Gail Lynne Reich -- greich@okgc.com -- O'Halloran Kosoff Geitner & Cook, LLC. VIRTUAL BENCH: "Sonnier" Labor Suit to Recover Unpaid OT Wages -------------------------------------------------------------- Jason Sonnier, individually and for others similarly situated, v. The Virtual Bench, LLC, Case No. 18-cv-01611 (S.D. Tex., May 16, 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Virtual Bench provides recruiting and consulting solutions for the engineering, human resource and corporate finance sectors. Sonnier worked for Virtual Bench as a QC Inspector in Lake Charles, Louisiana. He regularly worked more than 40 hours a week but was not paid overtime. [BN] Plaintiff is represented by: Michael A. Josephson, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: mjosephson@mybackwages.com litkin@ mybackwages.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com WAL-MART STORES: Court Denies Certification of "Swank" AMs Class ---------------------------------------------------------------- In the case, ANDREW SWANK, et al., Plaintiffs, v. WAL-MART STORES, INC., Defendant, Case No. 2:13-cv-1185 (W.D. Pa.), Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania denied the Plaintiffs' Motion for Rule 23 Class Certification and 29 U.S.C. Sections 216(b) Conditional Certification. On June 1, 2015, Plaintiffs Swank, Sean McCracken, and James Paolicelli filed the operative complaint in the case, the Third Amended Individual and Collective/Class Action Complaint ("TAC"), against Wal-Mart. In the TAC, the Plaintiffs, all former Assistant Managers of Wal-Mart ("AMs"), allege that Wal-Mart violated the Fair Labor Standards Act ("FLSA") and the Pennsylvania Minimum Wage Act ("PMWA") by not paying overtime wages to its AMs. In the case, the Plaintiffs seek class certification under Rule 23 of the Federal Rules of Civil Procedure and conditional certification under the FLSA, 29 U.S.C. Section 216(b). The Plaintiffs originally sought a class that included all persons employed by Wal-Mart as AMs within the State of Pennsylvania from Aug. 16, 2010, until the date of the Court's class certification order. However, in their Reply brief, the Plaintiffs explain that they wish to narrow their proposed class to include only those AMs who worked in Pennsylvania from August 16, 2010, through April 1, 2015, when Wal-Mart changed certain compensation and bonus policies. Wal-Mart opposes such class redefinition. It argues that the new class definition would be substantially prejudicial because Wal- Mart conducted extensive discovery in reliance on the Plaintiffs' initial class definition and did not have cause to question either side's witnesses about the April 2015 policy changes or defend against the Plaintiffs' new theory in any way. Furthermore, Wal-Mart asserts that the Plaintiffs were aware of the policy changes before they moved for class certification and that the Plaintiffs have not cited any statements by any witnesses to support their theory that the duties of AMs changed in April 2015. In fact, Wal-Mart argues that the 2015 policy changes did not affect the AMs' duties in any material way. The Court accepts the Plaintiffs' narrowed class definition for the purposes of deciding the pending Motion. It does so because its conclusion as to class certification will not change based on which class definition it uses -- in either case, the Court cannot certify the class. In addition, the Court concludes that Wal-Mart is not substantially prejudiced by the Court's class definition decision. Under the Plaintiffs' narrowed class definition, Wal-Mart is exposed to less potential liability and damages, not more. Furthermore, given that, as Wal-Mart points out, the Plaintiffs have not cited any statements to demonstrate that the AMs' duties changed in April 2015, Wal-Mart is not substantially prejudiced by the fact that it did not know to question the witnesses about the policy change. Instead, the discovery that Wal-Mart has conducted continues to be relevant for the Plaintiffs' more narrow time period because, as Wal-Mart explained, Wal-Mart gathered dozens of declarations from current and former AMs in Pennsylvania, and all but four of them worked as AMs or as AMs and co-managers before and after April 2015. Not one of them limited his or her testimony to a period after April 2015 or suggested their primary duties changed at that time. Accordingly, the Court will use the narrowed class of AMs who worked in Pennsylvania from Aug. 16, 2010, through April 1, 2015, for the purposes of deciding the pending Motion. Judge Hornak finds that the Plaintiffs have satisfied the requirements of Rule 23(a). However, as to the Rule 23(b)(3) requirements, after considering the extensive record in this case, he finds that the predominance requirement is not met here because individual questions predominate over common questions. His review of the record indicates that although the AMs' jobs were similar in some ways, the AMs had a wide array of individualized experiences that varied significantly in ways that bear materially on the analysis of their primary duties. Despite the Plaintiffs' arguments to the contrary, it is plain that different AMs spent their days performing vastly different tasks and working under varying levels of supervision. Accordingly, he concludes that individual questions predominate in the case and therefore the predominance requirement of Rule 23(b)(3) has not been met. The Plaintiffs' Motion for Class Certification under Rule 23 will be denied. The Judge now turns to the Plaintiffs' Motion for Conditional Certification under 29 U.S.C. Section 216(b). Based on all of the evidence in the record, he finds that the Plaintiffs have shown that the proposed Plaintiffs are similar in certain ways: they are all AMs employed by Wal-Mart in Pennsylvania, for instance, and the Plaintiffs' evidence with regard to Wal-Mart's employment manual, job description, and other employment policies provides some common links among the proposed collective plaintiffs. But the proposed Plaintiffs' common status as AMs is not enough under the more searching standard to establish that the Plaintiffs are sufficiently similarly situated to justify facilitating notice and proceeding to the final certification analysis. The AMs' individualized experiences, as contained in the record before the Court, vary significantly in precisely the ways that bear on the Court's eventual determination of liability and damages. Accordingly, facilitating notice' at this stage of the case, in light of the very extensive record that the parties have already developed which strongly demonstrates that the proposed collective Plaintiffs are not, in fact, similarly situated, is both unnecessary and inappropriate. The Plaintiffs' Motion for Conditional Certification under Section 216(b) will be denied. For the reasons he stated in the Opinion, Judge Hornak denied the Plaintiffs' Motion for Rule 23 Class Certification and 29 U.S.C. section 216(b) Conditional Certification. An appropriate Order will issue. A full-text copy of the Court's June 5, 2018 Opinion is available at https://is.gd/JCg9qj from Leagle.com. ANDREW SWANK, on behalf of himself and all others similarly situated, Plaintiff, represented by John R. Linkosky, Joseph H. Chivers, David Borgen -- dborgen@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice, Katharine L. Fisher -- kfisher@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice, Laura L. Ho -- lho@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice & Megan Ryan -- mryan@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice. JAMES PAOLICELLI, Plaintiff Consolidated, represented by John R. Linkosky, Joseph H. Chivers, David Borgen, Goldstein, Borgen, Dardarian & Ho, pro hac vice, Katharine L. Fisher, Goldstein, Borgen, Dardarian & Ho, Laura L. Ho, Goldstein, Borgen, Dardarian & Ho & Megan Ryan, Goldstein, Borgen, Dardarian & Ho, pro hac vice. WAL-MART STORES, INC, Defendant, represented by Kelly Dobbs Bunting -- buntingk@gtlaw.com -- Greenberg Traurig, LLP & Robert M. Goldich -- goldichr@gtlaw.com -- Greenberg Traurig, LLP, pro hac vice. WAL-MART STORES: Court Narrows Claims in "Beckman" Suit ------------------------------------------------------- Judge Cynthia Bashant of the U.S. District Court for the Southern District of California granted in part and denied in part the Defendants' motion to dismiss the case, GINA BECKMAN, individually and on behalf of herself and all others similarly situated, Plaintiff, v. WAL-MART STORES, INC., et al., Defendants, Case No. 17-cv-02249-BAS-BLM (S.D. Cal.). Beckman brings the putative class action lawsuit against Defendants Wal-Mart, Espresso Supply, Inc., Eko Brands, LLC, and Ekobrew, alleging that Defendants breached warranties and violated other California law related to a product they sold. She claims that the Brew & Save branded reusable coffee filter advertises on its label that it is compatible with all "Keurig(R) 1.0 and 2.0" machines when, in fact, it is not. The Plaintiff's claims arise from her purchase of a "Brew & Save" branded reusable carafe cup for her Keurig 2.0 series coffee maker. She purchased the Carafe Filter from a Wal-Mart store on or about May 22, 2017. The Plaintiff alleges that according to www.brewandsave.com, the Carafe Filter is compatible with most Keurig(R) and single serve brewers. She states that she purchased the Carafe Filter for her Keurig 2.0 machine because the packaging stated that the product was compatible with her Keurig coffee maker. The day after purchasing the Carafe Filter, the Plaintiff attempted to use it, but received an error message when she inserted the product. She alleges that this error message indicated that the Carafe Filter was not designed for her Keurig(R). She continued to receive the same error message despite trying to use the Carafe Filter multiple times. The Plaintiff further alleges that many internet reviews of the Carafe Filter on Wal-Mart's website states that other consumers had the "same and/or similar issues." On June 16, 2017, the Plaintiff initiated the action in the San Diego Superior Court, and filed the First Amended Complaint ("FAC") on Sept. 7, 2017. In the FAC, she asserts claims for: (1) breach of implied warranty of merchantability; (2) breach of express warranty; (3) breach of implied warranty of fitness for a particular purpose; and (4) violation of the California's Unfair Competition Law "UCL") and the California False Advertising Act section 17500, et seq. ("Unfair Business Practices claim"). On Nov. 3, 2017, the Defendants removed the case to federal court. They now move to dismiss the FAC. Judge Bashant finds that though the law permits the Plaintiff to allege standing for injunctive relief, she fails to do so. The Plaintiff fails to include any allegations in the FAC to support a finding that her injury would be repeated. Tellingly, in her opposition, the Plaintiff does not cite to any such allegations in support of her argument for standing. Because the Plaintiff fails to sufficiently plead standing for her requests of injunctive relief, the Judge granted with leave to amend the Defendants' motion to dismiss with respect to the claims for injunctive relief. The Defendants argue that the Plaintiff fails to state her claims because she does not plead her claims with sufficient particularity. The Plaintiff disputes this argument and states that all of her claims are sufficiently pled. The Judge denied the motion to dismiss for the Plaintiff's first, second, and third causes of action. Based on these allegations, she finds that the Plaintiff adequately pleads her warranty claims. Accepting all factual allegations in the FAC as true, the Plaintiff alleges that the Defendants expressly and impliedly warranted that the Carafe Filter is compatible with Keurig 2.0 machines, such as the one used by the Plaintiff. The Plaintiff also expressly states that she relied on these warranties that the product would function with her machine in deciding to purchase the product. Lastly, the Plaintiff pleads that she suffered damages when the product would not operate as intended and was useless for the purpose for which she purchased it. The Judge also finds that the Plaintiff adequately pled her Unfair Business Practices claims. The Plaintiff sufficiently pleads each of the "who, what, when, where, and how" requirements with specificity. Therefore, she finds that the Plaintiff sufficiently pled this claim by providing the "who, what, when, where, and how" elements. Accordingly, she denied the motion to dismiss for the Plaintiff's Unfair Business Practices claim. Lastly, the Defendants seek to dismiss the Plaintiff's request for non-restitutionary disgorgement of profits and attorneys' fees for her Unfair Business Practices claim, which are brought pursuant to sections 17200 and 17500 et seq. of the California Business and Professional Code. The Plaintiff does not dispute this argument. The Judge will grant with leave to amend the motion to dismiss the Plaintiff's request for these damages for her Unfair Business Practices claim. She finds that the California Supreme Court has made it clear that these damages are unavailable for individual private actions under these statutes. For these reasons, Judge Bashant granted in part and denied in part the Defendants' Motion to Dismiss. The Plaintiff may file a Second Amended Complaint that only provides additional factual allegations relating to her request for injunctive relief no later than June 19, 2018. If the Plaintiff does not file a Second Amended Complaint, the Defendants must answer the First Amended Complaint no later than June 29, 2018. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/SPusJM from Leagle.com. Gina Beckman, as an individual, on behalf of herself and all persons similarly situated, Plaintiff, represented by Monique Renee Rodriguez -- mrodriguez@clarklawyers.com -- Clark Law Group & Robert Craig Clark -- clarkc@clarkcraig.com -- Clark Law Firm. Wal-Mart Stores, Inc., an Arkansas corporation authorized to do business in the state of California, Espresso Supply, Inc., a Washington corporation authorized to do business in the state of California & Eko Brands, LLC, a Washington corporation, Defendants, represented by David Allen Lowe -- Lowe@LoweGrahamJones.com -- Lowe Graham Jones, pro hac vice & Norman A. Ryan -- nryan@ryanlitigators.com -- Ryan Carvalho & White LLP. WAL-MART TRANS: "Luna" Suit Moved to Western District of Arkansas ----------------------------------------------------------------- The class action lawsuit titled Leonard Luna, on behalf of himself and all others similarly situated, the Plaintiff, v. Wal- Mart Transportation, LLC, an Arkasas Corporation and Does 1-10, inclusive, the Defendants, Case No. 5:18-cv-00331, was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Western District of Arkansas (Fayetteville) on July 13, 2018. The Western District of Arkansas Court Clerk assigned Case No. 5:18-cv-05141- TLB to the proceeding. The case is assigned to the Hon. Judge Timothy L. Brooks. Wal-Mart Transportation LLC operates as a subsidiary of Wal-Mart Stores Inc.[BN] The Plaintiff is represented by: Maria Adrianne De Castro, Esq. Aashish Y Desai, Esq. DESAI LAW FIRM PC 3200 Bristol Street Suite 650 Costa Mesa, CA 92626 Telephone: (949) 614 5830 Facsimile: (949) 271 4190 E-mail: adrianne@desai-law.com aashish@desai-law.com Attorneys for Wal-Mart Transportation, LLC: Robert J. Herrington, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586 7700 Facsimile: (310) 586 7800 E-mail: herringtonr@gtlaw.com WASHINGTON: Faces Suit Over In-Home Caregiver Ripoffs ----------------------------------------------------- Sean Higgins, writing for Washington Examiner, reports that a class action lawsuit filed against Washington state and the Service Employees International Union seeks damages on behalf of potentially thousands of state-subsidized in-home caregivers, arguing that the state and the union conspired to divert subsidy money from caregivers who had no intention of joining SEIU. The lawsuit was filed on July 3 and comes in the wake of a Supreme Court's ruling in Janus v. American Federation of State, County and Municipal Employees that found that compelling public sector workers to join unions was unconstitutional. The lawsuit was filed by the free market Freedom Foundation on behalf of four caregivers but seeks class certification to represent all people who were part of the state's subsidy program and had a 3.2 percent deduction placed on their checks, ostensibly to pay for collective bargaining by SEIU Local 775, which the state made the workers' sole representative. The workers could opt out of making the payment, but the burden to do it was on them, and the lawsuit alleges that the state and union purposefully obscured this requirement. "The state of Washington to our knowledge has not taken any action whatsoever to alert the caregivers to their First Amendment rights to refrain from supporting SEIU," said Maxford Nelson, the foundation's director of labor policy. SEIU does send caregivers letters acknowledging they do not have to join the union, Nelson said, but it doesn't tell them everything. "A lot of folks are under the assumption that if they don't sign up for union membership no money will be taken from their pay... They don't realize that even if they don't sign up for union dues will still be withheld from their pay and they have to affirmatively opt-out to stop the payments." That system would appear to be unconstitutional under the Janus ruling, which said that funds can only taken from public sector workers with their affirmative consent. The same week the Supreme Court issued Janus the justices also invalidated a 7th Circuit Court ruling denying class action certification in a case called Riffey v. Rauner, which involved non-union state-subsidized Illinois home healthcare workers seeking to be repaid the funds they were forced to pay to a union. The justices told the appeals court to reconsider allowing class certification in light of Janus, leaving open the question of whether such lawsuits are permissible. SEIU and other unions like AFSCME have sought for years to organize in-home caregivers in states across the nation. Most states have programs, typically funded at least in part by Medicaid, that pay people subsidies to take care of invalids, many of whom are the caregivers' family members, in their homes. Unions have had Democratic allies in governors' offices and statehouse declare the caregivers to be state employees, which allows the state to then enter into a contract with unions to represent the caregivers. The Supreme Court declared in the 2014 case Harris v. Quinn that homecare workers in Illinois were not state employees and therefore could not be organized. Since then, unions in other states have typically allowed the caregivers to opt out of membership if they request it rather than risk a lawsuit invoking the Harris v. Quinn decision. But the unions have done little to alert the caregivers to these options. Democratic Gov. Jay Inslee signed a union-backed law in March that requires employers to automatically deduct union fair share fees from worker paychecks regardless of whether the workers themselves authorize it. The workers would have to opt out in writing. The Foundation's lawsuit alleges that Inslee and SEIU Local 775 "conspired to deny plaintiffs and class members of their First Amendment rights by deducting union dues from plaintiffs' and class members' wages without their clear, prior, affirmative consent." Nelson said it was unclear exactly how much money is at stake should class certification be granted because because it is unclear how many people would qualify under it. Representatives for Inslee and SEIU Local 775 could not be reached for comment.[GN] WELK GROUP: "Carreno" Sues Over Missed Breaks, Minimum Wages ------------------------------------------------------------ Yvonne Carreno and Charlotte Baxter Burden, on behalf of themselves and others similarly situated, Plaintiffs, vs. Welk Resort Sales, Inc., Member Development, Inc., Welk Resort Group, Inc., Welk Resort Properties, Inc. and Does 1 through 5G, inclusive, Defendants, Defendant, Case No. 37-2018-00024210 (Cal. Super., May 17, 2018), seeks redress for Defendants' failure to pay minimum wages and overtime under California labor code and the Fair Labor Standards Act, failure to provide meal breaks, and failure to reimburse necessary business expenditures. Plaintiffs were employed by Welk as commissioned, in-house sales agents selling time share ownership in Welk resorts from the Welk Resort and facilities in Escondido, California. [BN] Plaintiff is represented by: David Yeremian, Esq. Alvin B. Lindsay, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd, Suite 705 Glendale, CA 91203 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 Email: david@yeremianlaw.com alvin@yeremianlaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (310) 652-2242 Email: walterhaines@yahoo.com WINS FINANCE: Discovery Confidentiality Order in "Desta" Entered ---------------------------------------------------------------- Magistrate Judge Christina A. Snyder of the U.S. District Court for the Central District of California has issued a discovery confidentiality order in the case, MICHEL DESTA, Individually and on behalf of all others similarly situated, Plaintiffs, v. WINS FINANCE HOLDINGS INC., JIANMING HAO, RENHUI MU, AND JUNFENG ZHAO, Defendants, Case No. 2:17-cv-02983-CAS-AGR (C.D. Cal.). The Disclosure and Discovery Material in the Action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting the Action may be warranted. Accordingly, the Parties stipulate to and petition the Court to enter the Stipulated Protective Order. The Order is intended to facilitate the Parties' production of Discovery Material. It covers the production and use of all Confidential Discovery Material in the Litigation. The counsel for the objecting party will serve on the Designating Party a written objection to such designation within 14 days of receipt of the Confidential Discovery Material, which will describe with particularity the documents or information in question and will state the grounds for objection. If a Receiving Party (or any person receiving documents through the Receiving Party) is served with a Demand issued in any other action, investigation, or proceeding, and such Demand seeks Confidential Discovery Material produced to the Receiving Party in the Litigation, the Receiving Party will give prompt written notice within three business days of receipt of such Demand and at least five days prior to the deadline for the Receiving Party's response to such Demand to the Designating Party and, if requested in writing by the Designating Party, will postpone producing documents until such time as the Designating Party has timely filed a motion for a protective order and, the relevant court has ordered the production of such documents. The burden of opposing the enforcement of the Demand will fall upon the Designating Party. If the Designating Party obtains an order from any court or administrative agency of competent jurisdiction directing that the Demand be complied with, it must serve such order upon the Receiving Party within at least three business days of the order; the Receiving Party must then promptly comply with the terms of the order. At the close of the Litigation, the Order will remain in effect. A full-text copy of the Court's June 6, 2018 Order is available at https://is.gd/yilFsT from Leagle.com. Michel Desta, Individually and on behalf of all others similarly situated, Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- Rosen Law Firm PA. Brian Gabrich, Lead Plaintiff, Christopher Ikeocha, Lead Plaintiff & Raymond Mentor, Lead Plaintiff, Plaintiffs, represented by Laurence M. Rosen, Rosen Law Firm PA & Yu Shi -- yshi@rosenlegal.com -- The Rosen Law Firm PA, pro hac vice. Wins Finance Holdings Inc., Defendant, represented by Daniel G. Murphy -- dmurphy@loeb.com -- Loeb and Loeb LLP, Jay Musoff -- jmusoff@loeb.com -- Loeb and Loeb LLP, pro hac vice, Jennifer Jason -- jjason@loeb.com -- Loeb and Loeb LLP, John Piskora -- jpiskora@loeb.com -- Loeb and Loeb LLP, pro hac vice & Peter Pottier -- ppottier@loeb.com -- Leob and Loeb LLP, pro hac vice. WYNN LAS VEGAS: Casino Dealers Sue Over Illegally-withheld Tips --------------------------------------------------------------- Quy Ngoc Tang and Joseph Cesarz, individually and on behalf of all others similarly situated, Plaintiffs, v. Wynn Las Vegas, LLC, Defendant, Case No. 18-cv-00891 (D. Nev., May 16, 2018), seeks full damages for the value of the tips taken from them with an equal amount of liquidated damages, attorneys' fees, costs, interest and such other relief pursuant to the Fair Labor Standards Act of 1938. The Wynn Las Vegas is also known as Encore where Plaintiffs worked as casino dealers. According to the Plaintiffs, the Defendant compelled them to turn over a portion of their tips and distributing them to the supervisors or managers who do not customarily and regularly receive tips. [BN] Plaintiff is represented by: Leon Greenberg, Esq. LEON GREENBERG PROFESSIONAL CORPORATION 2965 South Jones Boulevard, Suite E3 Las Vegas, NV 89146 Tel: (702) 383-6085 URBAN OUTFITTERS: Ct. Severs Plaintiffs From "McEarchen" Suit ------------------------------------------------------------- In the case captioned Jeffrey McEarchen, Daniel Lawson and Thomas C. Wolfe, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Urban Outfitters, Inc., Defendant, Case No. 13-cv-03569 (E.D. N.Y., June 24, 2013), Judge James Orenstein granted a motion on May 16, 2018, to sever Plaintiffs from this action and open separate civil actions for each of their claims with the amended complaint under Case No. 18-cv-02914. Urban Outfitters is a retail store chain selling clothing and household goods, generally aimed at young adults. It allegedly misclassified Plaintiffs as exempt and failed to pay them for all hours worked by them as well as overtime pay for hours above 40 in a workweek. [BN] Thomas C. Wolfe is represented by: Alan L. Quiles, Esq. Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Hiway, Suite 404 Boca Raton, FL 33432 Tel: (561) 447-8888 Fax: (561) 447-8831 Email: aquiles@shavitzlaw.com gshavitz@shavitzlaw.com - and - Charles Gershbaum, Esq. David A. Roth, Esq. Marc Scott Hepworth, Esq. Rebecca Solomon Predovan, Esq. HEPWORTH, GERSHBAUM & ROTH, PLLC 192 Lexington Avenue, Ste. 802 New York, NY 10016 Tel: (212) 545-1199 Fax: (212) 532-3801 Email: CGershbaum@hgrlawyers.com droth@hgrlawyers.com marc@hgrlawyers.com rpredovan@hgrlawyers.com - and - Christopher McNerney, Esq. Justin Mitchell Swartz, Esq. Michael Joseph Scimone, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Tel: (212) 245-1000 Fax: (646) 509-2060 Email: cmcnerney@outtengolden.com jms@outtengolden.com mscimone@outtengolden.com - and - Fran L. Rudich, Esq. Michael Hayden Reed, Esq. Seth R. Lesser, Esq. KLAFTER OLSEN & LESSER LLP Two International Drive Rye Brook, NY 10573 Tel: (914) 934-9200 Fax: (914) 934-9220 Email: fran@klafterolsen.com michael.reed@klafterolsen.com slesser@klafterolsen.com - and - Naomi Briana Sunshine, Esq. NYU SCHOOL OF LAW 245 Sullivan St., Suite C-20 New York, NY 10012 Tel: (212) 998-6314 Fax: (212) 995-4539 Email: naomi.sunshine@nyu.edu - and - Ossai Miazad, Esq. OUTTEN & GOLDEN LLP 60 East 42nd Street, 25th floor New York, NY 10017 Tel: (212) 245-1000 Fax: (646) 509-2060 Email: omiazad@outtengolden.com - and - Sarah R. Schalman-Bergen, Esq. Shanon J. Carson, Esq. BERGER & MONTAGUE 1622 Locust Street Philadelphia, PA 19103 Tel: 215) 875-3000 Fax: (215) 875-4604 Email: sschalman-bergen@bm.net scarson@bm.net Urban Outfitters, Inc. is represented by: Cheryl D. Orr, Esq. Jaime D. Walter, Esq. DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105 Tel: (415) 591-7500 Fax: (415) 591-7510 Email: cheryl.orr@dbr.com jaime.walter@dbr.com - and - Thomas Barton, Esq. DRINKER BIDDLE & REATH LLP One Logan Square, Suite 2000 Philadelphia, PA 19103 Tel: (215) 988-2834 Fax: (215) 988-2757 Email: thomas.barton@dbr.com - and - William R. Horwitz, Esq. DRINKER BIDDLE & REATH LLP 600 Campus Drive Florham Park, NJ 07932 Tel: (973) 549-7000 Fax: (973) 360-9831 Email: william.horwitz@dbr.com ZICAM LLC: Settlement in "Melgar" Suit Has Preliminary Approval --------------------------------------------------------------- In the case, YESENIA MELGAR, on Behalf of Herself and all Others Similarly Situated, Plaintiff, v. ZICAM LLC and MATRIXX INITIATIVES, INC. Defendants, Case No. 2:14-cv-00160-MCE-AC (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the parties' motion for preliminary approval of the proposed Settlement. Class Representative Melgar and the Defendants have reached a proposed settlement and compromise of the claims in the matter, which is embodied in the Stipulation of Settlement that has been provided to the Court. Judge England, subject to further consideration by the Court at the time of the Final Approval Hearing, preliminarily approved the Settlement as fair, reasonable, and adequate to the Settlement Class, as falling within the range of possible final approval, and as meriting submission to the Settlement Class for its consideration. He certified the Settlement Class, which consists of all purchasers of Zicam RapidMelts Original, RapidMelts Ultra, Oral Mist, Ultra Crystals, Liqui-Lozenges, Lozenges Ultra, Soft Chews, Medicated Fruit Drops, and Chewables in the United States from Feb. 15, 2011 to the date the Order was signed. He provisionally appointed Yesenia Melgar as the Class Representative of the Settlement Class, and appointed Bursor & Fisher, P.A., as the Class Counsel for purposes of the Settlement. A Final Approval Hearing will be held before the Court at 2:00 p.m., on Dec. 13, 2018. Since the Settlement set forth in the parties' Stipulation of Settlement is within the range of reasonableness for possible Final Approval, the Class Notice should be provided to the Settlement Class pursuant to the Stipulation of Settlement, as follows: a. The Judge appointed RG/2 Claims Administration LLC, a well-qualified and experienced claims and notice administrator, as the Settlement Administrator. b. The Judge approved the Long-Form Notice. Not later than 30 days following the date th3 Order is electronically filed, the Class Counsel will cause a copy of the Long Form Notice, in both English and Spanish, to be posted on a dedicated website together with links to important case documents. c. The Class Counsel will register www.ZicamClassAction.com for notice purposes, along with several additional domains that will mirror and/or link to that website. d. The Judge approved the Short Form Notice. Not later than 30 days following the date this Order is electronically filed, the Settlement Administrator will cause a copy of the Short Form notice to be sent by email to all class members for whom email addresses are identified. e. The Settlement Administrator will undertake Publication Notice, which means publication of the Short Form Notice in accordance with the Media Plan. f. The Publication Notice will run from 30 days after the electronic filing of this Order to 120 days after the electronic filing of the Order. g. The Judge approved the Class Notice and Claims forms, including the Long Form Notice, the Short Form Notice, and the Claim Form, attached as Exhibit A to the parties' stipulation of settlement h. The Judge directed that the Class Notice will be given to the Class as provided herein and in Section IV of the parties' Stipulation of Settlement. The Settlement Class Members will have until the Claim Deadline, which will be 90 days after the start of Publication Notice, to submit a Claim Form. At least seven calendar days prior to the Fairness Hearing, the Class Counsel will prepare or cause the Settlement Administrator to prepare a list of the persons who have excluded themselves in a valid and timely manner from the Settlement Class, and the Class Counsel will file that list with the Court. The deadline for the Plaintiffs to file and serve papers in support of their application for final approval of the Stipulation of Settlement, as well as the Class Counsel's motion for fees, costs, and incentive awards, will be 14 days before the Objection deadline. The Class Counsel will also include contemporaneous time records sufficient to enable the Court to do a lodestar analysis. Any objections by any Settlement Class Member to the certification of the Settlement Class, the approval of the proposed Stipulation of Settlement set forth in the parties' Stipulation of Settlement, or the award of attorneys' fees, costs, and incentive awards, will be heard and any papers submitted in support of said objections will be considered by the Court at the Fairness Hearing only if, on or before the Objection deadline, which will be 90 days after the start of Publication Notice, such objector files with the Court a written objection and notice of the objector's intention to appear, and otherwise complies with the requirements set for in Article V of the Stipulation of Settlement. The deadline for the parties to file and serve any response to any timely objections will be 14 days after the Objection deadline. A full-text copy of the Court's June 5, 2018 Order is available at https://is.gd/Br2rFA from Leagle.com. Yesenia Melgar, Plaintiff, represented by Joseph I. Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A., pro hac vice, Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor and Fisher, PA, Scott A. Bursor -- scott@bursor.com -- Bursor & Fisher PA & Thomas Andrew Reyda -- treyda@bursor.com -- Bursor & Fisher, P.A. Zicam LLC & Matrixx Initiatives, Inc., Defendants, represented by Alan J. Lazarus -- alan.lazarus@dbr.com -- Drinker Biddle & Reath LLP, Ashley Neglia -- ashley.neglia@kirkland.com -- Kirkland & Ellis LLP, Kathryn Michelle Jackson -- katie.jackson@dbr.com -- Drinker Biddle & Reath, LLP, Leslie M. Smith -- leslie.smith@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Robyn E. Bladow -- rbladow@kirkland.com -- Kirkland & Ellis LLP, Ryan S. Fife -- ryanfife55@gmail.com -- Drinker Biddle & Reath LLP & William A. Hanssen -- william.hanssen@dbr.com -- Drinker Biddle and Reath LLP. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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