/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180731.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 31, 2018, Vol. 20, No. 152 Headlines AARP INC: Court Grants Bid to Dismiss "Levay" Insurance Fraud Suit ACCIDENT FUND: Court Denies Joint Bid to Dismiss "Beatty" ALARM.COM INC: Court Refuses to Stay "Abante" TCPA Suit ALTA-DENA CERTIFIED: 9th Cir. Flips Denial of "Perez" Class Cert AMERICAN SOLAR: Loses 2nd Summary Judgment Bid AMN HEALTHCARE: Court Certifies Class of Travelling Nurses AMP: Cases Put Australia's Class Action Industry in Limelight APEX SYSTEMS: Webb Seeks Pay for Off-the-Clock Work ARIZONA: Seeks 9th Cir. Review of Ruling in "Parsons" Suit ARKANSAS: Lay, Webb Appeal Order and Judgment to Eighth Circuit ARNS LAW: Combs Alleges Improper Operation of Nursing Facility ARS NATIONAL: Debt Collection Violates FDCPA, Says Hosier AT&T PENSION: Grosso & Wing Sue over Pension Benefit Plan BANK OF AMERICA: Must Produce Mortgage Assistance Policies Docs BEST BUY: Ninth Circuit Appeal Filed in "Herron" Consumer Suit BIG PICTURE: Appeals Ruling in "Williams" Suit to Fourth Circuit BMW FINANCIAL: Plaintiffs Directed to File Non-Opposition Notice BRISTOL-MYERS: Kozyak Tropin Attorneys Discuss SCOTUS Ruling BRIUS MANAGEMENT: Anderson Sues over Nursing Facility Services BUFFALO WILD WINGS: Tests Future of Class Action Waivers CALIFORNIA CEMETERY: Worker Files Suit to Recover Unpaid Wages CAMPBELL SOUP: "Cabrega" Suit Alleges Deceptive Practices CANADA: Long-Term Care Patients' Rights Group Files Class Action CAPITAL ONE: Fourth Circuit Appeal Filed in "Brown" Class Suit CASTRO CONSTRUCTIVE: Romero Seeks Unpaid Wages under FLSA CATHERINE ROSELLI: Faces Class Action Over FDCPA Violations CEDAR RAPIDS, IA: Ruling in 2008 Flood Class Action Upheld CENTERPLATE OF DELAWARE: Must Face Labor Class Action CHICAGO, IL: Blaha Calls Fines & Penalties 'Excessive' CHICAGO, IL: ECHA Held in Contempt Over Warrantless Searches CHILDREN'S MERCY: Faces Data Breach Class Action CHRISTY INC: U.S. Gov't Seeks Dismissal of Patent Class Action CIGNA CORP: Zhu Files ERISA Class Action in S.D. Calif. CIM GROUP: Blumenthal Nordrehaug Files Labor Class Action CLAY COUNTY, AR: Olsen Seeks Overtime Compensation under FLSA CLEMENS FOOD: Pork Consumers File Antitrust Class Action CLEVELAND, OH: Faces Class Action Over Slamming, Cramming COGNIZANT TECHNOLOGY: "Mishra" Stay Extended Pending Settlement COLGATE-PALMOLIVE CO: Dean Appeals C.D. Calif. Order to 9th Cir. COMMERCIAL INTERIORS: $307K Atty's Fees Award Endorsed in "Salinas" COOK COUNTY COURT: Fails to Protect Motor Vehicle Data, Nisi Says COUNTRYWIDE BANK: "Markowicz" Suit Alleges FDCPA Violations CRITTENDEN, AR: Mayo et al. Seek Overtime Compensation under FLSA CYTRX CORP: Sept. 17 Securities Settlement Fairness Hearing Set DETROIT, MI: Faces Class Action Over Civil Forfeitures EMERGENT BIOSOLUTION: Court Certifies Class in Securities Suit EUROMARKET DESIGNS: Chatman Sues Over Retained Biometrics Data FACEBOOK INC: Faces Class Action Over Bogus Ad Clicks FAIRMOUNT SANTROL: "Klein" Suit Transferred to N. D. Ohio FIFTH THIRD: Waweru Seeks Damages for FCRA Breach FMFS OF VS LLC: Willis Files Request for Judicial Intervention FOUNDERS PLAZA: Underpays Activity Directors, Abercrombie Alleges GLOBAL FINANCIAL: Constantinou Files Consumer Fraud Class Suit GOLDEN STATE FC: Hernandez Files Suit to Recover Final Pay GOOD GUYS NYC: Chagray Files Bid for Judicial Intervention GORDON FLESCH: Charles Cook Files Suit for Racial Discrimination GROSSMAN & KARASZEWSKI: Jackson Files Suit Over FDCPA Violation HYUNDAI MOTOR: Damico Sues Over Vehicles' Powertrain Defect IDEMIA IDENTITY: Rueda Files Suit to Recover Unpaid Wages IMPERVA INC: Poinsignon Seeks to Certify Settlement Class JAL CHEMICAL: Technicians Seek Unpaid Overtime Wages KNORR-BREMSE AG: Craver Files Suit Over Sherman Act Violation KNORR-BREMSE AG: Shepherd Files Antritrust Suit in Maryland KNS BUILDING: "Castilla" Suit Seeks Damages under FLSA KOHL'S DEPARTMENT: Collins et al. Seek to Certify Managers Class MALACHITE VENTURE: Majano Seeks Overtime Pay under FLSA MDL 1203: Denial of Larrieu's Matrix A-1 Benefits Affirmed MDL 2495: Makowski Appeals Order to 11th Cir. MDL 2495: Seltzer Appeals Ruling to 11th Cir. MDL 2495: Summ. Judgment Bid in Defective Roofing Suit Granted MONRO INC: Mittelmark Sues over Warranties of Catalytic Converters MOON RIDGE FOODS: Fails to Pay Wages, Morris Says NATIONAL BEVERAGE: Violates Securities Exchange Act, Luczak Says NISSAN NORTH: Faces "Costa" Suit Over Defective Transmissions NISSAN NORTH: Nguyen Appeals N.D. Calif. Ruling to Ninth Circuit ORLANDO, FL: Class Cert Denial in Red Light Camera Suit Affirmed POWER SWEEP: "Cooper" Suit Alleges FLSA Violations PRETE CONSTRUCTION: Inguil Seeks Overtime Pay under FLSA PROFESSIONAL DEBT: Marquez Sues over Debt Collection Practices RACK ROOM: Peralta Seeks to Certify Class RATHA REST: Court Certifies FLSA Class in "Sooknanan" Lawsuit RAYMOND JAMES: Passport Account Customers' Suit Dismissal Flipped RIABLE LAW: Higgins Seeks to Certify 2 Arkansas Residents Classes RUBICON OILFIELD: "Medved" Suit Seeks Unpaid Overtime Wages SAADEH CORP: Pongnorsing Sues over Payment Packing SAN DIEGO BLOOD BANK: Moran Seeks Unpaid Overtime Wages SILVER DOLLAR: Hill-Smith Seeks Minimum, Overtime Wages SNYDER'S-LANCE: Vanderstelts Seeks Payment of Lost Wages SONY COMPUTER: Final Judgment Entered in PS3 "Other OS" Class Suit SONY COMPUTER: Settlement in PS3 "Other OS" Suit Has Final Approval SOUTHEAST TITLE: Eleventh Circuit Appeal Filed in "Drinosky" Suit ST. JUDE MEDICAL: ASEA/AFSCME Hits Defibrillator Battery Defect STUMPS MARKET: Fails to Pay OT & Minimum Wages, Martinez Says SUSAN B. ANTHONY: Wijesinha Sues over Unsolicited Text Message T&R PAINTING: Fails to Pay Minimum & Overtime Wages, Macias Says TAH PIZZA: Underpays Delivery Drivers, Otis Claims TAL EDUCATION: Extract Sues over False Reports, Share Price Drop TARGET CORPORATION: Dormani Appeals D. Minn. Decision to 8th Cir. TESLA INC: Settlement in "Sheikh" Suit Has Prelim Approval TEXAS: Settlement in "Cole" Suit Has Final Approval TITAN FIRE: Riveras File FLSA Suit in E.D. New York TOTAL MERCHANT: "Collins" Suit Seeks to Certify Class TRANSUNION INTERACTIVE: Sporn Sues over Misleading Credit Scores TRUST CAPITAL: Robert Bohlke Seeks Damages under TCPA TWENTY-FIRST CENTURY: Federman Balks at Disney Merger Accord UMI SUSHI: Gao Seeks Minimum & Overtime Wages under FLSA UNION OF CALIFORNIA: State Workers Sue to Recover Union Fees UNITED COLLECTION: Court Approves Class Action Settlement UNITED STATES: Cass County Joins Class Action Over PILT Funds UNITED STATES: Court Orders Father-Son Reunification UNITED STATES: Faces Class Suit Over Refugee Program Termination UNITED STATES: Ordered to Streamline Family Reunion Process VAN RU: Placeholder Bid for Class Certification Filed in Wood Suit VERIZON COMMS: Underpays Wireline Workers, Graczyk et al. Say VOLKSWAGEN AG: 9th Cir. Affirms $10B "Clean Diesel" Settlement VOLKSWAGEN: $10-Bil. Diesel Class Action Settlement Upheld VOLKSWAGEN: Judge Partially Dismissed Exploding Sun Roof Case WALKERHEALTHCAREIT: Bey Seeks to Certify Class WILLIS & BROCK: Estes Seeks to Recover Minimum and Overtime Wages WILSON PIZZA: Fisher Sues to Recover Minimum and Overtime Wages [*] AICD Calls on Gov't to Address Class Action Insurance Issues [*] Corporations Call for Loosening of Robocall Restrictions [*] Increase in Securities Class Actions Hits Businesses, Society [*] Jackson Lewis PC Attorneys Discuss Data Breach Class Actions [*] Most of Supreme Court Brett Kavanaugh's Rulings Pro-Business ********* AARP INC: Court Grants Bid to Dismiss "Levay" Insurance Fraud Suit ------------------------------------------------------------------ The United States District Court for the Central District of California granted Defendants' Motion to Dismiss the case captioned SIMON LEVAY, JUDITH WILLIS, and LIONEL BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. AARP, INC., AARP SERVICES, INC., UNITEDHEALTH GROUP, INC., UNITED HEALTHCARE INSURANCE COMPANY, NEW YORK LIFE INSURANCE COMPANY and DOES 1 through 60, Defendants, Case No. 17-09041 DDP (PLAx)(C.D. Cal.). The First Amended Complaint alleges that the Plaintiffs are prospective insureds who are at least 65 years of age and have seen and/or heard offers of insurance services, joined AARP and pay membership fees to obtain the advertised insurance, and/or have purchased insurance from United Healthcare and New York Life. However, UnitedHealth records show that Simon Levay was the only plaintiff who ever purchased UnitedHealth Medigap insurance coverage. Similarly, New York Life's policyholder records show that none of the plaintiffs ever purchased New York Life insurance policies. On the basis of these allegations, the Plaintiffs brought suit against the Defendants for (1) negligence, (2) violations of California Insurance Code Sections 785 and 787, (3) violations of California's Unfair Competition Law (UCL), Cal. Business & Professions Code Sections 17200 et seq., (4) violations of California's False Advertising Law (FAL), Cal. Business and Professions Code Section 17500 et seq., and (5) financial elder abuse. The Defendants argue that this court lacks subject-matter jurisdiction over the action because no plaintiff has standing to sue. Federal courts are courts of limited jurisdiction, whose authority under Article III of the Constitution is restricted to actual cases or controversies. To establish Article III standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. In this case, the Plaintiffs allege that they have been injured by the Defendants' marketing of AARP-branded insurance policies. Specifically, the Plaintiffs claim that the Defendants sold insurance policies that were artificially inflated in light of AARP's 4.95 percent commission, which AARP received on each policy sold or renewed. The only plaintiff to have purchased an AARP-branded Medigap policy is Simon Levay. Even assuming that Levay relied upon AARP's representations to his detriment in purchasing a Medigap policy, he does not allege how he will continue to be harmed by the Defendants' representations, thereby meriting the remedy of prospective injunctive relief. In Davidson v. Kimberly-Clark, the Ninth Circuit outlined the limited circumstances under which a previously deceived consumer who brings a false advertising claim can allege that her inability to rely on the advertising in the future is an injury sufficient to grant her Article III standing to seek injunctive relief. Although a close question, the Davidson Court concluded that a previously harmed consumer who had a reasonable desire to purchase a product if it were to perform as advertised, but who could no longer rely upon the validity of the information advertised, had Article III standing to pursue injunctive relief. None of those facts, however, are present here. Therefore, the court grants the Defendants' motion to dismiss for lack of subject-matter jurisdiction with respect to Plaintiffs Judith Willis and Lionel Brown. It also dismisses the Plaintiffs' request for injunctive relief, and Plaintiffs' claims against Defendant New York Life. Motions to Dismiss Under Rule 12(b)(6) California Insurance Code Sections 785 and 787 The Plaintiffs contend that the Defendants' actions are in violation of California Insurance Code Sections 785 and 787. Even assuming that the Plaintiffs have a private right of action to enforce these code provisions, however, they do not apply to the Medigap insurance policy that Levay purchased from UnitedHealth. Section 785 states: "Except where explicitly provided to the contrary, this article shall not apply to. Medicare supplement insurance as defined in subdivision (m) of Section 10192.4. Subdivision (m), in turn, defines Medicare supplement insurance, to include, subject to certain exceptions, a policy advertised, marketed, or designed primarily as a supplement to reimbursements under Medicare." The parties do not dispute that Levay's Medigap insurance policy falls within the definition of Medicare supplement insurance and is therefore excluded from the scope of Sections 785 and 787. UCL and FAL Claims For the purposes of statutory standing, both the UCL and the FAL require that Levay plead an economic injury related to the purchase of his AARP-branded Medigap policy. To properly plead an economic injury, a consumer must allege that she was exposed to false information about the project purchased, which caused the product to be sold at a higher price, and that she `would not have purchased the goods in question absent this misrepresentation. The Defendants contend that Levay must have actually seen the allegedly misleading representations before purchasing his AARP-branded Medigap policy in order to plead reliance. However, Levay has not alleged that he saw any of the advertisements or representations of AARP-branded insurance that he now challenges. Therefore, the court dismisses Levay's UCL and FAL claims against UnitedHealth on this basis with leave to amend. Fraud Allegations The Defendants contend that the claims in the FAC do not plead fraud with specificity, as required under Rule 9(b). In California, the elements of a fraud claim are a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages. Here, the FAC alleges that the Defendants falsely represented information about AARP-branded insurance policies; that the Defendants did so knowingly; that the Defendants intended to defraud consumers; and that consumers relied upon Defendants' representations. The question here is whether the fraud-based allegations in the FAC are part of a unified course of fraudulent conduct central to the Defendants' theory of liability, rather than non-essential elements of the claims. Stripped of the fraudulent allegations, however, the court finds that the FAC fails to state a claim for relief under the UCL or FAL, or for financial elder abuse. If Levay is to retain these allegations in the complaint, he must plead fraud with specificity, and allege the who, what, when, where, and how of Defendants' misconduct. Put differently, he must do more than adequately plead that reasonable consumers are likely to be deceived. Rather, he must set forth what is false or misleading about a statement, and why it is false. Accordingly, the court dismisses the remaining claims for failure to allege fraud with specificity pursuant to Rule 9(b). A full-text copy of the District Court's July 12, 2018 Memorandum is available at https://tinyurl.com/ydxavekr from Leagle.com. Simon Levay, Judith Miller & Lionel Brown, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, represented by Alan I. Schimmel -- aischimmel@spattorneys.com -- Schimmel and Parks APLC, Arash Homampour -- arash@homampour.com -- Homampour Law Firm PLC, Danielle Nicole Lincors -- Danielle@homanpour.com -- Homampour Law Firm &Michael W. Parks -- mwparks@spattorneys.com - Schimmel and Parks APLC. AARP, Inc. & AARP Services, Inc., Defendants, represented by Sarah Beth Burwick -- sarah.burwick@bclplaw.com -- Bryan Cave Leighton Paisner LLP, Jeffrey S. Russell -- jsrussell@bclplaw.com -- Bryan Cave LLP, pro hac vice & John W. Amberg -- jwamberg@bclplaw.com -- Bryan Cave Leighton Paisner LLP. UnitedHealth Group, Inc. & Unitedhealthcare Insurance Company, and Does 1 through 60, inclusive, Defendants, represented by Brian David Boyle -- bboyle@omm.com -- OMelveny and Myers LLP, Aaron Dane Henson -- ahenson@omm.com -- O'Melveny and Myers LLP & Meaghan VerGow - mvergow@omm.com -- O'Melveny and Myers LLP, pro hac vice. New York Life Insurance Company, Defendant, represented by Carol Lynn Thompson -- CTHOMPSON@SIDLEY.COM -- Sidley Austin LLP, Lauren Marie De Lilly -- LDELILLY@SIDLEY.COM -- Sidley Austin LLP & Joshua E. Anderson -- JANDERSON@SIDLEY.COM -- Sidley Austin LLP. ACCIDENT FUND: Court Denies Joint Bid to Dismiss "Beatty" --------------------------------------------------------- The United States District Court for the Southern District of Illinois denied Defendants' Joint Motion to Dismiss the Complaint for Failure to State a Claim in the case captioned MICHAEL E. BEATTY, M.D., d/b/a THE SOUTHWESTERN ILLINOIS PLASTIC & HAND SURGERY ASSOCIATES, individually and as the Representative of a class of similarly situated persons, Plaintiff, v. ACCIDENT FUND GENERAL INSURANCE COMPANY, et al., Defendants, Case No. 3:17-CV-01001-NJR-DGW (S.D. Ill.). Plaintiff Michael Beatty, M.D., is an Illinois plastic surgeon who provides medical services to patients for work-related injuries. The Defendants in this matter are insurance companies that have issued workers' compensation insurance policies covering Illinois workers, third party administrators (TPAs) employed by Illinois employers to administer workers' compensation claims, or claims adjusting companies (CACs) employed by insurance carriers or TPAs to administer workers' compensation claims. Dr. Beatty filed this putative class action, pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Dr. Beatty alleges Defendants violated the ICFA by engaging in unfair practices related to the payment of interest due under the Illinois Workers' Compensation Act (IWCA). The Defendants argue Dr. Beatty has failed to state a claim for four reasons: -- First, insurers and TPAs have no duty to pay interest under the IWCA. -- Second, medical providers lack standing under the IWCA to sue insurers or TPAs. -- Third, Dr. Beatty cannot use the ICFA to circumvent the IWCA. -- And fourth, Dr. Beatty has not adequately pleaded the elements of an ICFA claim. Defendants' Duty to Pay Interest Under the IWCA Dr. Beatty's ICFA claim presumes the Defendants have a duty to pay interest under Section 8.2(d) of the IWCA, an obligation he claims they unfairly skirt. Here, the plain language Section 8.2(d) of the IWCA, which requires an employer to make payment, must be read in conjunction both with those sections referencing employer or insurer and with Section 4(a), which allows an employer to insure its entire liability in an insurance carrier. When reading these provisions together, the language of Section 8.2(d) requiring an employer to make payment becomes ambiguous. If the legislature intended for insurers to pay interest, why did it only reference employer? On the other hand, why would it allow an employer to insure its entire liability but then require an employer to pay interest when an insurer fails to pay on time? Because the statute is ambiguous, the Court turns to the purpose and necessity for the law and the goals sought to be achieved. In this case, the purpose of the IWCA in general and Section 8.2(d) specifically is to promptly compensate employees for their injuries. This includes the interest provision of Section 8.2(d)(3). To effectuate that goal, if an employer has insured its workers' compensation liability in an insurer, then the insurer must be responsible for any interest accrued on late payments. An insurance company that believes only the employer is responsible for paying interest has no motivation to pay on time, thereby defeating the purpose of the IWCA and rendering the interest provision inconsequential. Furthermore, to conclude that only employers are responsible for paying interest would absurdly result in employers being penalized for insurers (to whom they already pay premiums) choosing not to timely pay providers for their work. The Defendants' argument that medical providers like Dr. Beatty must rely on employees to apply for an adjustment of claim to the Illinois Workers' Compensation Commission is similarly absurd and inconvenient. Although the Defendants claim employees routinely seek to recover interest in such proceedings, the cases the Defendants cite to are examples of employees seeking statutory penalties under Sections 19(k) and (l) for unreasonable or vexatious delay of payment or intentional underpayment of compensation. Those penalties are paid directly to the employee. An employee with a compensable injury has no incentive to attempt to obtain interest due to a provider under Section 8.2(d) from his or her employer, as employees are never on the hook for paying interest. This conclusion is also supported by the Illinois Department of Insurance's December 2012 Bulletin to all insurance companies and self-insured entities licensed and approved to provide workers' compensation coverage in Illinois. The bulletin, cited by Dr. Beatty, is from Director of Insurance Andrew Boron and advises all insurance companies and claims administrators who adjust workers' compensation claims in Illinois of their duty to comply with the statutory interest provisions of Section 8.2(d). While the Court is not bound by the Illinois Department of Insurance's interpretation of the statute, it may be given substantial weight and deference, as it expresses an informed source for ascertaining the legislative intent. Here, the Court has determined that Section 8.2(d) is ambiguous; therefore, the Court believes the amendment (if the bill passes) will serve to clarify what the legislature intended. In this case, that would mean the legislature indeed intended for insurers to be on the hook for paying interest all along. Medical Providers' Standing to Sue Under the IWCA The Defendants assert this rule stems from Section 4(g) of the IWCA, which names three classes of persons who can sue an employer's insurer: (1) the employee (2) the employee's representative and (3) the employee's beneficiary. Dr. Beatty asserts this argument is irrelevant, as he is not bringing an IWCA claim. The Court agrees. Dr. Beatty is not suing under the IWCA, so whether providers have standing to pursue direct claims against insurers under the IWCA has no bearing on this case. Dr. Beatty is not trying to recover under the IWCA; therefore, whether he has standing to sue under the IWCA is irrelevant. Dr. Beatty's Use of the ICFA to Circumvent the IWCA First, the Defendants claim, the ICFA does not alter the rights available to a plaintiff under other statutes. Accordingly, if a plaintiff cannot state a claim under the IWCA, he also cannot state a claim under the ICFA. Second, the Defendants assert the ICFA is not a vehicle for artful pleading of claims. In response, Dr. Beatty argues that the ICFA does not require an underlying private right of action. Here, however, failing to pay interest is not allowed by the IWCA and goes against the IWCA's public policy of prompt compensation for workers' compensation claims. Because the ICFA does not require an underlying private right of action, and because Section 8.2(d) does require insurers to pay interest, the Defendants' argument fails. The Defendants' second and third arguments are similarly unpersuasive. While the Defendants again assert that Dr. Beatty is merely trying to bring a direct IWCA claim under the guise of a consumer fraud action, Dr. Beatty counters that he is alleging Defendants are intentionally engaging in an illegal scheme to undermine public policy and avoid the requirements of the IWCA. Based on the allegations in the complaint, the Court agrees Dr. Beatty is attempting to bring an ICFA claim. Finally, the Defendants assert that this Court should not expand Illinois state law to permit an ICFA claim to get around the IWCA's restriction on direct actions by medical providers. As noted by Dr. Beatty, however, there is nothing novel about asserting an ICFA claim in federal court. While the subject of the ICFA claim may be novel, that in itself does not preclude this Court from reviewing the claim. Failure to State an ICFA Claim To state a claim under the ICFA, a plaintiff must allege: (1) a deceptive or unfair act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice; (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce; and (4) the deceptive or unfair practice was the proximate cause of the plaintiff's actual damage. Consumer Nexus Before analyzing whether Dr. Beatty has alleged the elements of an ICFA claim, the Court must consider the threshold question of whether Dr. Beatty is a consumer. The ICFA defines a consumer as any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household. Dr. Beatty concedes he is not a consumer under this definition. Instead, he asserts he satisfies the consumer nexus test. Here, the Defendants focus on whether Dr. Beatty has alleged their conduct implicates consumer protection concerns. Dr. Beatty argues the Court need not reach that analysis, as he has alleged the Defendants' scheme involves trade practices directed to the market generally. Specifically, Dr. Beatty cites his allegations that the Defendants systematically and routinely fail and refuse to pay interest on any late-paid or unpaid bill, thereby impacting every patient and provider in the entire Illinois healthcare market that is, the Defendants' scheme is directed to all of Illinois. At oral argument, Dr. Beatty further emphasized that the fundamental purpose of the IWCA is to protect and compensate employees, Illinois consumers, completely and promptly. The Court disagrees that the Defendants' scheme as alleged by Dr. Beatty is directed to the market generally. While the conduct may have repercussions for Illinois consumers, Defendants are not targeting the market generally. Rather, they are allegedly failing to pay medical providers and concealing their failure to do so by various means. Unfair Practice The Defendants next argue Dr. Beatty's claim should be dismissed because the Defendants did not engage in an unfair practice that is actionable under the ICFA. Considering the Court has already found that insurers are obligated to pay interest under the IWCA, the Court also finds that Dr. Beatty pleaded facts sufficient to allege a violation of public policy when he alleged that the Defendants failed to pay that interest. The Court further agrees that the Defendants' argument that the IWCA was enacted to benefit employees and not medical providers cuts against them. The Defendants' alleged refusal to pay interest as required by the IWCA, must them ultimately hurt employees if the statute is designed to fully and timely compensate them for their workplace injuries. A full-text copy of the District Court's July 2, 2018 Memorandum and Order is available at https://tinyurl.com/yb2tz7rl from Leagle.com. Michael Beatty, Plaintiff, represented by John G. Simon -- jsimon@simonlawpc.com -- Simon Law Firm PC, Benjamin R. Askew -- baskew@simonlawpc.com -- Simon Law Firm PC, Robert H. Wendt, Wendt Law Firm, & Kevin M. Carnie, Jr. -- kcarnie@simonlawpc.com -- Simon Law Firm PC. Accident Fund General Insurance Company, Accident Fund Insurance Company of America & Accident Fund National Insurance Company, Defendants, represented by John Sandberg -- jsandberg@sandbergphoenix.com -- Sandberg, Phoenix et al., Anthony L. Martin -- anthony.martin@ogletree.com -- Sandberg, Phoenix et al. & Natalie J. Kussart -- nkussart@sandbergphoenix.com -- Sandberg, Phoenix et al. Acuity, A Mutual Insurance American Compensation Insurance Company, Defendant, represented by Glenn F. Fencl -- fenclg@jbltd.com -- Johnson & Bell LTD., Amber N. Lukowicz -- lukowicza@jbltd.com -- Johnson & Bell, Ltd. &Genevieve M. LeFevour -- lefevourg@jbltd.com -- Johnson & Bell, Ltd. ALARM.COM INC: Court Refuses to Stay "Abante" TCPA Suit ------------------------------------------------------- The United States District Court for the Northern District of California denied Defendant's Motion to Stay the case captioned ABANTE ROOTER AND PLUMBING, INC., ET AL., Plaintiffs, v. ALARM.COM INCORPORATED, ET AL., Defendants, Case No. 15-cv-06314-YGR(N.D. Cal.) pending the outcome of Marks v. Crunch San Diego, LLC, Case No. 14-56834 (9th Cir. December 14, 2016). The Plaintiffs bring this class action against the defendants alleging four counts: (i) violations of the Telephone Consumer Protection Act (TCPA) for calls made to cellular telephones; (ii) violations of the TCPA for calls made to residential telephone lines; and (iii) violations of 47 C.F.R. Section 64.1200(c) and 47 U.S.C. Section 227(c)(5) for calls made to members of the National Do-Not-Call Registry (DNC Registry). In contemplating a stay, a court may consider whether (i) a final result is imminently forthcoming; (ii) the impending decision would have an impact on the issues raised in the instant matter (iii) the moving party demonstrates hardship in moving forwarding; and (iv)a stay will prejudice the non-moving party. Although a decision may be forthcoming in Marks that would likely have some impact on the issues raised in the instant matter, it is unclear whether a resolution of Marks will have a direct impact on the issues before the court, or substantially simplify the issues presented. Even if the outcome in Marks was relevant to these proceedings and favorable to the defendant, other issues would remain ripe for consideration and resolution. Alarm.com points to the potential for re-arguing motions for summary judgment as evidence of hardship in moving forward without a stay. However, that hardship would apply only to those claims the adjudication of which depend solely on whether the calls were made using an ATDS claims brought by the Cell Phone Class that do not involve allegations of an artificial or pre-recorded voice system. Therefore, the Court is open to considering bifurcation of the case as between those alleged calls involving ATDSs and those involving artificial or pre-recorded voice systems or calls to individuals on the DNC Registry. However, the Court finds that a stay pending the resolution of Marks is not appropriate in the instant case. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/y7tuy268 from Leagle.com. Abante Rooter and Plumbing, Inc., individually and on behalf of all others similarly situated, Mark Hankins, individually and on behalf of all others similarly situated & Philip J. Charvat, individually and on behalf of all others similarly situated, Plaintiffs, represented by Beth E. Terrell -- bterrel@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Anthony I. Paronich -- anthony@broderick-law.com -- Broderick & Paronich, P.C., Brian A. Glasser -- bglasser@baileyglasser.com - Bailey and Glasser, LLP, pro hac vice, Chiharu Gina Sekino -- csekino@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Edward A. Broderick -- ted@broderick-law.com -- Broderick and Paronich, P.C., Elizabeth Anne Adams -- eadams@terrellmarshall.com -- Terrell Marshall Law Group PLLC, James C. Shah -- jshah@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Jennifer Rust Murray -- jmurray@terrellmarshall.com -- Terrell Marshall Law Group PLLC, pro hac vice, John W. Barrett -- jbarrett@baileyglasser.com -- Bailey Glasser, LLP, pro hac vice, Jonathan Rehe Marshall -- jmarshall@baileyglasser.com -- Bailey Glasser LLP, pro hac vice, Kerem M. Levitas -- klevitas@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Matthew Passi McCue -- mmcue@massattorneys.net -- The Law Office of Matthew P. McCue & Ryan McCune Donovan -- rdonovan@baileyglasser.com -- Bailey Glasser, LLP. Alarm.com Incorporated & Alarm.com Holdings, Inc., Defendants, represented by Kasey C. Townsend -- ktownsend@murchisonlaw.com -- Murchison & Cumming, Susan Jane Welde -- swelde@murchisonlaw.com -- Murchison & Cumming, LLP, Craig S Primis -- craig.primis@kirkland.com -- Kirkland and Ellis LLP, Daniel I. Schlessinger, Jaszczuk P.C., Keith Lowell Gibson, Jaszczuk P.C., 311 South Wacker Drive. Suite 1775. Chicago, Illinois 60606, Margaret M Schuchardt, Locke Lord LLP, Martin Wojslaw Jaszczuk, Jaszczuk P.C. & Seth Haines Corthell, Jaszczuk P.C. ALTA-DENA CERTIFIED: 9th Cir. Flips Denial of "Perez" Class Cert ---------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, reversed in part and affirmed in part the judgment denying Plaintiffs' motion to certify a class and later granted summary judgment in the cases captioned JUAN PEREZ, on behalf of himself and those similarly situated, Plaintiff-Appellant, v. ALTA-DENA CERTIFIED DAIRY, LLC, a Delaware Limited Liability Company, Defendant-Appellee, Nos. 17-55082, 17-55318 (9th Cir.). Appellant Juan Perez was a delivery driver for Appellee Alta-Dena Certified Dairy, L.L.C. Perez alleges that Alta-Dena violated state wage-and-hour laws by subjecting him and the members of a putative class to a route-restriction policy/practice, a non-compliant meal and rest break policy/practice, and a policy/practice of auto-deducting for meal breaks whether or not drivers took those breaks. The Court concludes that the district court abused its discretion in denying class certification under Rule 23(b)(3) for lack of predominance of common class issues over individual ones. The district court erred with respect to Perez's meal break timing theory and his route restriction theory because the district court focused on largely irrelevant factors to the exclusion of the critical ones. The district court also erred with respect to Perez's derivative auto-deduction theory. The Court express no view on whether any of Perez's proposed subclasses ultimately should be certified; The Court hold only that the district erred in its assessment of predominance. Summary judgment was appropriate on Perez's individual claims. Contrary to Perez's contention, calculation of his damages from raw time and pay records required more than simple math. The Court cannot assume that time records showing no breaks meant that Perez took no breaks, where the undisputed evidence was that the XATA system did not always permit drivers to record breaks and drivers sometimes forgot to record them. Summary judgment was appropriate on Perez's individual claims. A full-text copy of the Ninth Circuit's July 9, 2018 Memorandum is available at https://tinyurl.com/y9sul7rp from Leagle.com. AMERICAN SOLAR: Loses 2nd Summary Judgment Bid ---------------------------------------------- The United States District Court for the Southern District California denied Defendant's Motion to Leave to File Second Amended Motion for Summary Judgment in the case captioned KERRY O'SHEA, Plaintiff, v. AMERICAN SOLAR SOLUTION, INC., Defendant, Case No. 3:14-cv-00894-L-RBB (S.D. Cal.). This case is a class action alleging Defendant American Solar Solution, Inc. (Defendant) violated the Telephone Consumer Protection Act (TCPA), by using an automatic telephone dialing system (ATDS) to place telemarketing calls to cell phones. The Defendant placed fifteen calls to named Plaintiff Kerry O'Shea's (Plaintiff) cell phone. The Defendant contends that ACA Int'l v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018) changed the definition of an ATDS such that the Defendant's ViciDial predictive dialer no longer triggers it. The TCPA broadly defines an ATDS as equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. Germane to the present motion are two positions taken by the Federal Communications Commission (FCC). The first position is that a predictive dialer is an ATDS. A predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers' telephone numbers in a manner that predicts the time when a consumer will answer the phone and a telemarketer will be available to take the call. The ACA decision is unhelpful to the Defendant because the Plaintiff is not arguing that the ViciDial predictive dialer is an ATDS because it could be configured with autodialing functions. Rather, the Plaintiff has submitted undisputed evidence establishing that the ViciDial predictive dialer wasin fact presently configured as a predictive dialer. The ACA decision left intact the holding of both the FCC's 2003 and 2008 Order that an autodialer is an ATDS. It follows that the ViciDial predictive dialer is an ATDS. Accordingly, the Court denies the Defendant's ex parte motion for leave to file a second motion for summary judgment. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/y7agw8jn from Leagle.com. Kerry O'Shea, on behalf of himself and all others similarly situated, Plaintiff, represented by Ronald Marron -- ron@consumeradvocates.com -- Law Office of Ronald Marron, Alexis M. Wood -- alexis@consumersadvocates.com -- Law Offices of Ronald A. Marron & Kas L. Gallucci -- kas@consumersadvocates.com -- Law Offices of Ronald A. Marron. American Solar Solution, Inc., a California Corporation, Defendant, represented by Ken Ichi Ito &Margaret Juhyee Lee -- legal@greensoltech.com -- Green Solar Technologies, Inc. AMN HEALTHCARE: Court Certifies Class of Travelling Nurses ---------------------------------------------------------- The United States District Court for the Northern District of California granted Plaintiffs' Motion for Class Certification in the case captioned ROBERT SHAW, et al., Plaintiffs, v. AMN HEALTHCARE, INC., et al., Defendants, Case No. 16-cv-02816-JCS (N.D. Cal.). In their Motion for Class Certification in which the Plaintiffs ask the Court to certify a class under Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure of traveling nurses employed by AMN who have worked at Kaiser Foundation Hospitals in California during the proposed class period. The Plaintiffs in this putative class action are employed by Defendant AMN Healthcare, Inc. (AMN), a labor contractor that recruits and places traveling nurses at various healthcare facilities across the United States. They assert wage and hour claims under California laws governing the payment of overtime and provision of meal and rest periods. The Plaintiffs ask the Court to certify the following class under Rule 23(b)(2) and (3) of the Federal Rues of Civil Procedure: All traveling nurses who worked in the job position(s) of Registered Nurse, Licensed Practical Nurse, or another nursing position(s), for Defendant AMN and/or Defendant Kaiser, in one or more Kaiser facilities in California during the applicable time period. Numerosity Rule 23(a)(1) requires that the size of the proposed class be so numerous that joinder of all the class members is impracticable. The Defendants state 5,355 healthcare professionals employed by AMN had assignments at Kaiser facilities in California during that period. The Plaintiffs also have offered declarations by 33 traveling nurses who were employed by AMN and worked at Kaiser facilities during the proposed class period. The Defendants do not dispute that the numerosity requirement is satisfied. The Court therefore concludes that the proposed class is sufficiently numerous that joinder of all class members is impracticable. Defendants' Challenges to Commonality and Predominance Whether Commonality and Predominance Requirements are Met as to Overtime Claims Under California law, employers must compensate their employees for all the time the employees are suffered or permitted to work, whether or not required to do so. The Plaintiffs' overtime claims are based on the theory that Kaiser instructs class members that it has a strict policy against overtime by AMN traveling nurses and has a burdensome approval policy even though the core duties required of all nurses at Kaiser facilities make it all but impossible to avoid working overtime, resulting in underreporting of overtime. First, the Plaintiffs have offered evidence of a common policy, reflected in assignment communications that were sent to AMN traveling nurses assigned to at least ten different Kaiser facilities in California conveying to them that Kaiser does not permit overtime, or has a strict policy on overtime. Second, evidence that Kaiser applies a different overtime policy to its own nurses even while expecting all nurses at Kaiser facilities, including traveling nurse, to perform the same core duties with respect to hand-offs and charting and adhere to the same ethical and professional obligations with respect to patient care constitutes common proof that may reflect Kaiser's awareness of the structural problems that result in failure to compensate unscheduled overtime. Third, the financial incentives and contractual arrangements between Kaiser and AMN are common factors that result (under the Plaintiffs' theory) in the Defendants' failure to take reasonable measures to prevent underreporting of overtime. The Defendants devote a significant portion of their brief to arguing about what the statements in the assignment emails mean, asserting Kaiser's policy does not prohibit overtime outright. The Court concludes these common issues predominate over any individualized inquiries with respect to the Plaintiffs' overtime claims. First, the Defendants' reliance on nine declarations by current AMN employees to demonstrate that individualized issues predominate as to payment of overtime is unpersuasive. Second, even if the Court gives some weight to the class member declarations submitted by the Defendants, these declarations do not defeat predominance. A well-defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant's unlawful conduct. Therefore, the Court finds that common issues predominate over individualized inquiries as to the Plaintiffs' overtime claims. Whether Commonality and Predominance Requirements are Met as to Meal and Rest Break Claims California employers must provide meal periods and authorize and permit rest periods to all employees during their shifts. The California Supreme Court has held that the required meal and rest periods must be off-duty, which means that employees must be relieved of all work-related duties, including the duty to remain on call, and they must be free from employer control over how they spend their time. This evidence is sufficient to demonstrate a common question as to whether traveling nurses do not take breaks to which they are entitled because of the pressures imposed by Kaiser's policies and the Defendants' failure to adopt policies and procedures to ensure that they receive compliant breaks, which other courts have found to be sufficient to warrant certification under Brinker. In Alberts v. Aurora Behavioral Health Care, 241 Cal.App.4th 388, 406 (2015), the mere existence of a lawful break policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks, citing Brinker, 53 Cal.4th at 1040, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. Nurses were not permitted to leave their unit for any break unless they were relieved and a nurse who abandons patients without being properly relieved of duty, places his or her professional license in jeopardy. Although a nurse was employed to float among units to provide meal break relief for members of the nursing staff no such staff was available for rest breaks, and employees were expected to arrange for any rest breaks on their own. The Court reaches the same conclusion here. Typicality Rule 23(a)(3) requires that the legal claims or defenses of the representative parties be typical of the claims or defenses of the class. The Court rejects the Defendants' assertion that the typicality requirement is not met because of variations in the experiences of the proposed class representatives. The Defendants rely heavily on testimony of Shaw, for example, that at Kaiser San Diego breakers were used for meal and rest breaks. In contrast, Plaintiffs Kucharski and Corona Teitelbaum testified that at the Kaiser facilities where they worked, break nurses were not used. The Defendants also point to declarations by other class members that break nurses were used at Kaiser facilities where they worked. However, neither Shaw nor the other class members state that these break nurses were dedicated only to providing breaks and had no other duties, or that their breaks were provided exclusively by break nurses. In any event, variations among facilities are not inconsistent with the Plaintiffs' theory, which is based on the Defendants' failure to adopt policies and procedures to ensure that the Plaintiffs were consistently provided timely and uninterrupted breaks. Therefore, the Court concludes that these variations do not defeat typicality as to the rest and meal break claims. Likewise, the Court finds unpersuasive the Defendants' reliance on divergent situations as to the Plaintiffs' overtime claims. The divergences the Defendants point out are inconsequential. As to Shaw, his testimony about "nursing culture" was not offered to explain why he did not claim overtime but instead, why he worked overtime, and supports the Plaintiffs' theory that nurses' professional obligations contribute to the pressure to work overtime. Further, his testimony as to why he didn't claim overtime was that he understood that he was required to obtain an approval signature in order to claim the time and the process of obtaining that approval was extremely burdensome. The Plaintiffs' theory is that a variety of policies and practices at Kaiser facilities, in combination, led to underreporting of overtime. There is nothing in the testimony of the named Plaintiffs that the Defendants have cited that suggests that their claims are not typical of the class claims. Adequacy Rule 23(a)(4) requires that the class representatives fairly and adequately protect the interests of the class. The Court also finds that class counsel have no conflicts of interest and that they are well-qualified to represent the Plaintiffs. The Court rejects the Defendants' argument that class counsel have a conflict of interest because they entered into a class carve-out agreement with plaintiffs' counsel in a separate class action involving a class of AMN employees who asserted different claims. This agreement recognizes that the two actions involve distinct alleged underlying wrongs and different claims and factual predicates. It merely promises that class counsel will not enter into any settlement agreement that purports to settle claims asserted in the other case without the consent of class counsel in that case. In other words, counsel in this case have promised not to settle claims that they are not asserting in this case but that the class in Clark is asserting without the consent of Clark's counsel and class counsel in Clark have made a reciprocal promise of the same nature. The Defendants' novel assertion that this agreement creates a conflict of interest is unsupported by any authority and makes no sense as a practical matter as it is clear on the face of the agreement that it is intended to protect the interests of the putative class in this case. Therefore, the Court concludes that the adequacy requirement is met as to both the proposed class representatives and class counsel. Superiority of Class Mechanism The Court also finds that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Here, the Court finds that individual class members are unlikely to have an interest controlling the litigation and that it is desirable and in the interests of judicial efficiency to concentrate the litigation in a single judicial forum. The Court further notes that the likely cost of litigating any particular class member's claims vastly exceeds the class member's potential recovery, a factor that further supports the conclusion that the class mechanism is superior to requiring that each class member bring a separate action to pursue the claims raised in this case. The Court rejects the Defendants' assertion that the superiority requirement is not met because class treatment of the Plaintiffs' claims will not be manageable. The Defendants argue that the Plaintiffs have failed to offer any trial plan showing how they will prove their claims on a classwide basis and raise the specter of a "trial by formula," which the Supreme Court has disapproved. In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011), holding that trial court erred in certifying a class where plaintiffs relied on statistical evidence to prove that pay and promotion disparities were the result of gender discrimination and not other neutral factors. A full-text copy of the District Court’s July 5, 2018 Order is available at https://tinyurl.com/yatbhflc from Leagle.com. Robert Shaw, Plaintiff, represented by Leslie H. Joyner -- ljoyner@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, Michaela Wallin -- mwallin@bm.net -- Berger Montague, P.C., pro hac vice, Nathan Bunnell Piller -- npiller@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP, Sarah Rebecca Schalman-Bergen -- sschalman-bergen@bm.net -- Berger and Montague, P.C., pro hac vice, Shanon Jude Carson -- scarson@bm.net -- Berger & Montague, P.C., pro hac vice & Joshua Geoffrey Konecky -- jkonecky@schneiderwallace.com -- Schneider Wallace Cottrell Konecky Wotkyns LLP. Sharon Davis, Plaintiff, represented by Leslie H. Joyner , Schneider Wallace Cottrell Konecky Wotkyns LLP, Nathan Bunnell Piller , Schneider Wallace Cottrell Konecky Wotkyns LLP & Joshua Geoffrey Konecky, Schneider Wallace Cottrell Konecky Wotkyns LLP. Jennifer Corona Teitelbaum, Lorenzo Holmes & Candy Kucharski, Plaintiffs, represented by Joshua Geoffrey Konecky, Schneider Wallace Cottrell Konecky Wotkyns LLP. AMN Healthcare, Inc., Defendant, represented by Sarah Kroll-Rosenbaum -- skrollrosenbaum@constangy.com -- Constangy Brooks Smith and Prophete LLP, Steven Bernard Katz -- skatz@constangy.com -- Constangy, Brooks, Smith & Prophete, LLP, Andrew More McNaught -- amcnaught@seyfarth.com -- Seyfarth Shaw LLP, Kenneth Dawson Sulzer -- ksulzer@constangy.com -- Constangy, Brooks, Smith & Prophete, LLP, Matthew Scholl -- mscholl@constangy.com -- Constangy, Brooks, Smith & Prophete, LLP, Sarah Kepner Hamilton -- shamilton@constangy.com -- Constangy, Brooks, Smith & Prophete, LLP & Tazamisha H. Imara -- timara@constangy.com -- Constangy, Brooks, Smith & Prophete, LLP. Kaiser Permanente International, Defendant, represented by Christian Joseph Rowley -- crowley@seyfarth.com -- Seyfarth Shaw LLP, Andrew More McNaught, Seyfarth Shaw LLP & Eric Ghiya Ruehe -- eruehe@seyfarth.com -- Seyfarth Shaw LLP. AMP: Cases Put Australia's Class Action Industry in Limelight ------------------------------------------------------------- Adele Ferguson, writing for Australian Financial Review, reports that it is shaping up as a watershed moment for Australia's class action industry. With two separate inquiries into class actions and litigation funders and a battle brewing in the Federal Court and Supreme Court of NSW over which jurisdiction five competing AMP shareholder class actions should be heard, the industry has never been more in the limelight. It is a high stakes game, particularly if one of the inquiries triggers changes to the country's continuous disclosure regime or makes recommendations that rein in class actions. In the case of the scandal-ridden AMP, four class actions were instituted in the Federal Court and one class action was filed in the NSW Supreme Court. The class actions relate to the financial services giant admitting it deliberately charged consumers fees for no services on a systematic basis. It then misled the corporate regulator, in the process letting down shareholders. While all parties agreed one judge should hear all five cases, a disagreement emerged over which court should hear them all. That disagreement took a surprise twist when both courts looked set to spray around injunctions. It prompted Chief Justice Julie Ward of the Supreme Court of NSW at the eleventh hour to step in and describe the situation as a "debacle" and it ran the risk of bringing the administration of justice into disrepute. They were tough words that managed to get both sides to hold fire for at least a month until the Federal Court makes its determination on an application to transfer the Federal Court proceedings to the NSW Supreme Court. After that, it is game on. The court versus court stoush attracted little publicity outside of the legal fraternity but it sent a warning signal to all about the rise of class actions and how competing class actions need to be managed to prevent what almost happened with AMP happening again. Hugh McLernon, executive director of litigation funder IMF Bentham, which is funding one of the AMP class actions in the Federal Court, believes state-based class action systems are recent but necessary developments in Australia's jurisprudence. "They are required to enable class actions based upon state rather than federal laws," he said. "It means problems will inevitably arise when class actions involve claims under both federal and state laws . . . The current imbroglio is the first example of what will be involved in that sorting process." Not surprisingly, companies and boards don't like class actions. But at the end of the day, if a company isn't doing anything wrong, it doesn't need to worry. It is why former Australian Securities and Investments Commission chairman Greg Medcraft described them as "very good at equalling up the tables . . . they democratise access to the law" and can be "a good market-driven solution". Medcraft's contention was that if the market decided it wanted to take on corporate malfeasance and somebody is willing to bankroll it, rather than calling on the public purse, that was part of market efficiency. Over the years as more Australians have come to own shares -- either directly or indirectly through investments in managed funds and super -- class actions have become a common weapon for shareholders to draw on to enforce their rights. But two inquiries could revise the class action landscape. They include the Victorian Law Reform Commission, which recently completed its inquiry into litigation funding, and the Australian Law Reform Commission (ALRC), which was asked by the federal government in December 2017 to "consider whether and to what extent class action proceedings and third party litigation funders should be subject to Commonwealth regulation". The Terms of Reference require the ALRC to consider whether there is adequate regulation of conflicts of interest between litigation funder and lawyer, whether there are enough checks and balances when it comes to the distribution of settlements and damages awards, the "desirability" of imposing prudential requirements, including relating to capital adequacy and requirements relating to the character and suitability of litigation funders. Submissions to the ALRC inquiry close at the end of July, and a final report is expected on December 21. In a paper released last month, the ALRC gave an insight into its thinking when it suggested the federal government should commission a review of the continuous disclosure obligations of listed companies and those relating to misleading and deceptive conduct contained in the Corporation's Act with regards to "the propensity for corporate entities to be the target of funded shareholder class actions in Australia". It also proposed looking at the availability and cost of directors and officers liability cover within the Australian market. It was music to the ears of many boardrooms who would like nothing more than to see the continuous disclosure regime watered down. They would also like to put a lid on class actions. But it is worth remembering that the continuous disclosure regime was introduced for a reason: to protect shareholders. Companies that breach this need to be held to account and sometimes the regulator isn't in a position to follow through. Having a regime in place that holds companies to account improves culture and governance. Class actions have been around in Australia for more than 25 years and so it is right that they should be reviewed -- along with litigation funders -- to ensure they meet best practice. Over the years there have been a few shocking class actions, most notably failed management schemes Timbercorp and Great Southern. Burnt victims of the schemes received little back after years of fighting and were left with massive loans after being advised by the law firm not to make interest payments on their loans while the class action was in process -- advice that turned out to be disastrous for many, as the banks imposed penalties. But on the whole, class actions have given hundreds of thousands of Australians access to justice that they might not otherwise have been able to afford. Many have been successful. Critics argue there is an explosion in class actions, but the numbers say otherwise. According to a recent paper published by Professor Vince Morabito from the department of law and tax at Monash Business School, since Australia's first class action was lobbed in 1992, a total of 563 class actions have been filed on or before May 31, 2018. This constitutes an average of 21.4 class actions every year. In a country with a population of more than 24 million people, this cannot rationally be viewed as excessive, he says. To put it into perspective, Professor Morabito looks at the number of class actions in places including Israel. He says in the nine years from 2007 to 2015, 5867 class actions were filed in Israel, which has a population of just over 8 million people. In Quebec, which has a population of just over 8 million people, 1306 class action cases were filed since 1993 and in Ontario, which has a population of just over 14 million, 1459 class action cases were filed. The debate will only get louder ahead of the ALCR report and submissions are released. It is why a number of class action law firms have been writing editorials in recent weeks outlining the benefits of class actions and trying to dispel some myths. And while a number of high-profile directors have been criticising class actions, including that they are costly, a burden on business and pushing up the cost of insurance, "very few end up benefiting the class they are supposed to benefit and very few get to court," Westpac chairman Lindsay Maxsted was quoted as saying. [GN] APEX SYSTEMS: Webb Seeks Pay for Off-the-Clock Work --------------------------------------------------- Jennifer Webb, on behalf of herself and all others similarly situated, Plaintiff, v. Apex Systems, LLC and Dell Marketing Corp., Defendants, Case No. 18-cv-00686, (M.D. Tenn., July 24, 2018), seeks relief for unpaid wages, unpaid overtime wages, liquidated damages, prejudgment interest, costs, attorney's fees and declaratory relief pursuant to the Fair Labor Standards Act of 1938. Plaintiff worked at a call center operated by Dell in Dell Parkway in Nashville, Tennessee. Defendants pay only for work activities performed while they are logged into a phone dialing software platform. Webb claims compensation for preparatory work activities before their paid shifts begin, including activities related to the operation of their computers, logging into their computers and into a dozen programs needed to field calls. [BN] Plaintiff is represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. Scott P. Tift, Esq. BARRET, JOHNSTON, MARTIN & GARRISON LLC 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 Email: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com stift@barrettjohnston.com - and - John L. Mays, Esq. MAYS & KERR LLC 235 Peachtree Street NE North Tower, Suite 202 Atlanta, GA 30303 Telephone: (404) 410-7998 Facsimile: (404) 855-4066 Email: john@maysandkerr.com - and - Charles P. Yezbak, III, Esq. YEZBAK LAW OFFICES 2002 Richard Jones Road, Suite B-200 Nashville, TN 37215 Tel: (615) 250-2000 Fax: (615) 250-2020 Email: yezbak@yezbaklaw.com ARIZONA: Seeks 9th Cir. Review of Ruling in "Parsons" Suit ---------------------------------------------------------- Defendants Richard Pratt and Charles L. Ryan filed an appeal from a court ruling in the lawsuit styled Victor Parsons, et al. v. Charles Ryan, et al., Case No. 2:12-cv-00601-ROS, in the U.S. District Court for the District of Arizona, Phoenix. As previously reported in the Class Action Reporter, the District Court approved in 2015 a settlement agreement between the Arizona Department of Corrections and inmates in its 10 state-run prisons, which should improve medical care for prisoners. Under the settlement, the Arizona Department of Corrections ask the Legislature for increased funding for health care staffing and institute plans to treat prisoners with chronic diseases. The agency, which admitted no wrongdoing, will also give annual flu shots and provide colon cancer screenings and mammograms to inmates of a certain age. Corrections officers are to refrain from using pepper spray on prisoners unless there is an "imminent threat" present. The settlement comes after a 2012 class action in which inmates claimed they were subjected to "unnecessary pain and suffering, preventable injury, amputation, disfigurement and death" in Arizona prisons. They also claimed prison staffs were ill-prepared and -trained to handle medical emergencies. The appellate case is captioned as Victor Parsons, et al. v. Charles Ryan, et al., Case No. 18-16358, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 20, 2018; -- Transcript is due on September 19, 2018; -- Appellants Richard Pratt and Charles L. Ryan's opening brief is due on October 29, 2018; -- Appellees Arizona Center For Disability Law, Maryanne Chisholm, Robert Carrasco Gamez Jr., Joseph Hefner, Shawn Jensen, Desiree Licci, Victor Antonio Parsons, Joshua Polson, Sonia Rodriguez, Jeremy Smith, Stephen Swartz, Jackie Thomas, Christina Verduzco and Charlotte Wells' answering brief is due on November 28, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees VICTOR ANTONIO PARSONS, et al., are represented by: Daniel Clayton Barr, Esq. Amelia M. Gerlicher, Esq. John H. Gray, Attorney, Esq. PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: (602) 351-8085 E-mail: dbarr@perkinscoie.com agerlicher@perkinscoie.com jhgray@perkinscoie.com - and - Kathleen Erin Brody, Esq. ACLU OF ARIZONA 3707 N. 7th Street Phoenix, AZ 85014 Telephone: (602) 773-6011 E-mail: kbrody@acluaz.org - and - Kirstin Eidenbach, Esq. EIDENBACH LAW PLLC P.O. Box 91398 Tucson, AZ 85752 Telephone: (520) 477-1475 - and - David Cyrus Fathi, Esq. ACLU-AMERICAN CIVIL LIBERTIES UNION 915 15th St., NW Washington, DC 20005 Telephone: (202) 393-4930 E-mail: dfathi@aclu.org - and - Amy Fettig, Esq. NATIONAL PRISON PROJECT-ACLU 915 15th Street, NW Washington, DC 20005 Telephone: (202) 548-6608 E-mail: afettig@npp-aclu.org - and - Alison Hardy, Esq. Corene Thaedra Kendrick, Esq. Rita Katherine Lomio, Esq. Sara Norman, Esq. Donald Specter, Esq. PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 Telephone: (510) 280-2621 E-mail: ahardy@prisonlaw.com ckendrick@prisonlaw.com rlomio@prisonlaw.com snorman@prisonlaw.com dspecter@prisonlaw.com - and - Victoria A. Lopez, Esq. 3707 N. 7th Street Phoenix, AZ 85014 Telephone: (602) 773-6011 - and - Caroline Nason Mitchell, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 875-5712 E-mail: cnmitchell@jonesday.com - and - John Laurens Wilkes, Esq. JONES DAY 717 Texas Street Houston, TX 77002 Telephone: (832) 239-3796 E-mail: jlwilkes@jonesday.com Defendants-Appellants CHARLES L. RYAN, Warden, Director, Arizona Department of Corrections, and RICHARD PRATT, Interim Division Director, Division of Health Services, Arizona Department of Corrections, are represented by: Nicholas D. Acedo, Esq. STRUCK LOVE BOJANOWSKI & ACEDO PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 Telephone: (480) 420-1600 E-mail: nacedo@swlfirm.com - and - Michael E. Gottfried, Esq. ARIZONA ATTORNEY GENERAL'S OFFICE 2005 N. Central Avenue Phoenix, AZ 85004 Telephone: (602) 542-7693 E-mail: Michael.Gottfried@azag.gov - and - Rachel Love, Esq. Daniel Patrick Struck, Esq. STRUCK, WIENEKE & LOVE, PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 Telephone: (480) 420-1600 E-mail: rlove@swlfirm.com dstruck@swlfirm.com ARKANSAS: Lay, Webb Appeal Order and Judgment to Eighth Circuit --------------------------------------------------------------- Plaintiffs Jerimey Lay, Tabitha Lay and Katelyn Webb filed an appeal from the District Court's Opinion & Order and Judgment, both entered on June 20, 2018, in their lawsuit styled Katelyn Webb, et al. v. Chelsea Smith, et al., Case No. 4:17-cv-00660-JLH, in the U.S. District Court for the Eastern District of Arkansas - Little Rock. Chelsea Smith is a Family Services Worker in Arkansas. As previously reported in the Class Action Reporter, Judge J. Leon Holmes granted in part and denied in part the state officials' motion to dismiss the case. The parents of children taken into temporary protective custody by the State of Arkansas bring the class action against state officials of the Division of Children and Family Services of the Department of Human Services ("DHS") in their individual and official capacities alleging violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution under 42 U.S.C. Section 1983. The Plaintiffs allege three categories of federal claims: (1) Webb and the Lays claim separately from the class that the seizures of their children were unconstitutional; (2) Webb and the Lays claim separately from the class that they were deprived of an opportunity to be heard in a timely manner after the seizures; and (3) Webb and the Lays claim on behalf of themselves and the proposed class that the Arkansas statutes governing the provision of post-deprivation hearings to parents of seized children are constitutionally deficient. The appellate case is captioned as Katelyn Webb, et al. v. Chelsea Smith, et al., Case No. 18-2541, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before August 28, 2018; -- Appendix is due on September 7, 2018; -- Brief of Appellants Jerimey Lay, Tabitha Lay and Katelyn Webb is due on September 7, 2018; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief.[BN] Plaintiffs-Appellants Katelyn Webb, as guardian and next friend of K.S. and D.S. and on behalf of Herself and all Others Similarly Situated; Jerimey Lay, as guardian and next friend of R.L. and C.L.; and Tabitha Lay, as guardian and next friend of R.L. and C.L., are represented by: Joseph E. Churchwell, Esq. CHURCHWELL LAW OFFICES 214 Hobson Avenue Hot Springs, AR 71913 Telephone: (501) 318-9921 - and - Lucien Ramseur Gillham, Esq. Luther Oneal Sutter, Esq. SUTTER & GILLHAM 310 W. Conway Street P.O. Box 2012 Benton, AR 72018-2012 Telephone: (501) 315-1910 Facsimile: (501) 315-1916 E-mail: lucien.gillham@gmail.com luthersutter.law@gmail.com Defendants-Appellees Chelsea Smith, Individually and in her Official Capacity; Stacy Houck, Individually and in her Official Capacity; Mischa Martin, Individually and in her Official Capacity; and Cindy Gillespie, Individually and in her Official Capacity, are represented by: Monty Vaughan Baugh, Esq. ATTORNEY GENERAL'S OFFICE 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000 Telephone: (501) 682-2007 E-mail: monty.baugh@arkansasag.gov - and - Maryna O. Jackson, Esq. ATTORNEY GENERAL'S OFFICE 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000 Telephone: (501) 682-2007 E-mail: maryna.jackson@arkansasag.gov ARNS LAW: Combs Alleges Improper Operation of Nursing Facility -------------------------------------------------------------- BILLIE COMBS, on behalf of herself and similarly situated California residents, the Plaintiff, v. SHLOMO RECHNITZ; RECHNITZ CITRUS GP; CITRUS WELLNESS CENTER, LLC; DRIFTWOOD HEALTHCARE & WELLNESS CENTER, ADMINISTRATIVE SERVICES, LLC; and DOES 1 through 250, inclusive, the Defendants, Case No. BC71365 (Cal. Super. Ct., July 17, 2018), alleges that Defendants actively and intentionally concealed from Plaintiff and class members that Defendants did not devote sufficient financial resources to the proper operation of their California skilled nursing facility, did not devote sufficient financial resources to protect the health and safety of residents and ensure resident rights were not violated, and instead diverted those resources to create ill-begotten profits for Defendants.[BN] Attorneys for Plaintiff and the putative class: Stephen M. Garcia, Esq. GARCIA, ARTIGLIERE & MEDBY One World Trade Center, Suite 1950 Long Beach, CA 90831 Telephone: (562) 216 5270 Facsimile: (562) 216 5271 E-mail: edocs@Iawgarcia.com - and - Robert S. Arns, Esq. Julie C. Erickson, Esq. THE ARNS LAW FIRM 515 Folsom Street San Francisco, CA 94105 Telephone (415) 495 7800 Facsimile (415) 495 7888 ARS NATIONAL: Debt Collection Violates FDCPA, Says Hosier ---------------------------------------------------------- Shana Hosier, individually and on behalf of all others similarly situated v. ARS National Services, Inc., John Does 1-25, Case No. 1:18-cv-06503 (S.D.N.Y., July 19, 2018), alleges that the Defendants' debt collection efforts attempted and/or directed towards the Plaintiff violated various provisions of the Fair Debt Collection Practices Act. ARS National Services, Inc., is a company that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. The identities of the Doe Defendants are unknown.[BN] The Plaintiff is represented by: Daniel Kohn, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 E-mail: dkohn@steinsakslegal.com AT&T PENSION: Grosso & Wing Sue over Pension Benefit Plan --------------------------------------------------------- VINCENT C. GROSSO and PATRICIA M. WING, On Behalf Of Themselves and All Others Similarly Situated, the Plaintiffs, v. AT&T PENSION BENEFIT PLAN and AT&T SERVICES, INC, AS PLAN ADMINISTRATOR, the Defendants, Case No. 1:18-cv-06448 (S.D.N.Y., July 17, 2018), seeks to recover full pension benefits accrued during Plaintiffs' employment with AT&T Inc., pursuant to the Employee Retirement Income Security Act of 1974. According to the complaint, AT&T's denial of retroactive benefits to Plaintiffs violates the so-called Special Update which, as in effect when Plaintiffs left AT&T's employment, did not require a written application as a condition of entitlement to unreduced early retirement benefits, and did not prohibit retroactive payments. Moreover, AT&T's application of the 2016 Amendment to Plaintiffs' claims reduced their accrued benefits retroactively, in violation of ERISA's anti-cutback rule. In April 1997, AT&T adopted an amendment to the AT&T Pension Benefit Plan which, effective August 1, 1997, entitled eligible current and former management employees to receive unreduced early retirement benefits at age 55, instead of having to wait to age 65 to receive the same monthly benefit. The Amendment is referred to as the "Special Update." The only two requirements for eligibility for the Special Update were that individuals must have been AT&T employees and participants in the Plan on January 1, 1997. It is uncontested that Plaintiffs met both requirements. The Plaintiffs did not learn of the adoption of the Special Update until, in the case of Mr. Grosso, January 2017, when he was 63 years old and, in the case of Ms. Wing, December 2016, when she was 59 years old. Upon learning of its adoption, Plaintiffs applied immediately for the unreduced early retirement benefits to which they had become entitled at age 55. AT&T, however, awarded them benefits only prospectively from the dates of their respective applications, causing them to forfeit all retroactive benefits payable between the date of application and age 55. As calculated by AT&T, Mr. Grosso's retroactive claim is valued at $229,108.29, plus interest, while Ms. Wing's is valued at $87,381.84, plus interest. AT&T predicated the denial of retroactive benefits not on the Special Update, as adopted in 1997, but on an amendment to the Special Update which it adopted in December 2016, 19 years after Plaintiffs left AT&T's employment and just days before they applied for benefits. As applied, but not explained by AT&T, the 2016 Amendment requires a written application as a condition of entitlement to unreduced early retirement benefits and, therefore, does not permit retroactive payments.[BN] Counsel for Plaintiffs: Edgar Pauk, Esq. 1066 Union Street Brooklyn, NY 11225 Telephone: (718) 399 2023 E-mail: lawoffice@edgarpauk.com - and - Robert L. Liebross, Esq. 39 Broadway, Suite 1620 New York, NY 10006 Telephone: (212) 566 2151 E-mail: rliebross@liebrosslaw.com BANK OF AMERICA: Must Produce Mortgage Assistance Policies Docs --------------------------------------------------------------- The United States District Court for the Western District of New York granted in part Plaintiffs' Motion to Compel Production in the case captioned Bobbi Jackson and Matthew Jackson, Plaintiffs, v. Bank of America, N.A., Defendant, No. 16-CV-787G (W.D.N.Y.). This potential class-action case concerns allegations that the Bank mishandled the Jacksons' attempts at loan modification when they fell behind in their mortgage; the Bank's conduct allegedly sent the Jacksons' home into foreclosure, increased fees that they owed, and violated federal housing regulations in the process. The Court rules that to the extent that it has not done so already, the Bank must furnish the Jacksons with policies, procedures, and training materials concerning how to process mortgage assistance applications. The Bank additionally must furnish policies, procedures, and training materials concerning how it tests compliance with Section 1024.41. Unless Section 1024.41(b) had its own distinct procedures and compliance testing, the processing and testing materials must cover all of Section 1024.41. The Bank also must furnish any reports, presentations, or memoranda that it generated from 2014 through 2017 that summarize or discuss the results of compliance testing for Section 1024.41. The Court can consider at a later time whether and how the results of this document production might affect the Jacksons' ability to establish typicality. Consequently, and after considering the other requests in the pending motion, the Court will direct three other forms of discovery that will unfold incrementally as needed. For the calendar years 2014 through 2017, the Bank will furnish the Jacksons with copies of the complete files for the first 100 mortgage assistance applications submitted each year. Subject to later requests for modification, the entire contents of the 400 sample files will be marked as confidential information and will be handled in accordance with the protective order. Production of the sample files should give the Jacksons some guidance as to how routinely any regulatory violations occurred; the routine or sporadic nature of any violations, in turn, will help the Jacksons decide whether any potential class should cover any applicants for mortgage assistance or should be defined more carefully. For any current or former employee whose name appears anywhere in the sample files, the Bank will search the email accounts for those employees for any mention of (1) the names of the applicants; or (2) the principal word or words in the addresses of the properties subject to the mortgage obligations. That email search should suffice to give the parties some idea as to whether Bank employees in fact were processing mortgage assistance applications by email, outside of official procedure and contrary to the Bank's assertions. A full-text copy of the District Court's July 12, 2018 Decision and Order is available at https://tinyurl.com/y97336bc from Leagle.com. Bobbi Jackson & Matthew Jackson, Plaintiffs, represented by Catherine Creighton -- ccreighton@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Daniel Townsend -- daniel@guptawessler.com -- Gupta Wessler PLLC, pro hac vice, Ian H. Hayes -- ihayes@cpjglaborlaw.com -- Creighton Johnsen & Giroux, Katherine Aizpuru -- kaizpuru@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Matthew W.H. Wessler -- matt@guptawessler.com -- Gupta Wessler PLLC, pro hac vice, Annick Persinger -- apersinger@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Geoffrey G. Bestor, The Bestor Law Firm & Jonathan K. Tycko -- jtycko@tzlegal.com -- Tycko & Zavareei LLP. Bank of America, N.A., Defendant, represented by Keith E. Levenberg -- klevenberg@goodwinlaw.com -- Goodwin Procter LLP, Courtney L. Hayden -- chayden@goodwinlaw.com -- Goodwin Procter LLP & James W. McGarry -- jmcgarry@goodwinlaw.com -- Goodwin Procter LLP. BEST BUY: Ninth Circuit Appeal Filed in "Herron" Consumer Suit -------------------------------------------------------------- Plaintiff Chad Herron filed an appeal from a court ruling in his lawsuit entitled Chad Herron v. Best Buy Stores, LP, Case No. 2:12-cv-02103-TLN-CKD, in the U.S. District Court for the Eastern District of California, Sacramento. The appellate case is captioned as Chad Herron v. Best Buy Stores, LP, Case No. 18-16343, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, Mr. Herron filed an appeal from a court ruling in the lawsuit. That appellate case is styled as Chad Herron v. Best Buy Stores, LP, Case No. 18-80056. In or about January 2010, Plaintiff Chad Herron bought a new Toshiba Satellite L505 from Best Buy after he was induced on the representation that the battery life of such model was up to 3.32 hours. However, the Plaintiff never once achieved even close to the represented 3.32 hours of battery life. The Plaintiff alleged that the Defendant violated the California Consumers Legal Remedies Act or CLRA and under the "unlawfulness" portion of California's Unfair Competition Law or UCL that is premised upon the CLRA claim. The briefing schedule in the Appellate Case is set as follows: -- Appellant Chad Herron's opening brief is due on September 20, 2018; -- Appellee Best Buy Stores, LP's answering brief is due on October 22, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant CHAD HERRON, individually, on behalf of himself and all others similarly situated, is represented by: Richard D. Lambert, Esq. Gene Joseph Stonebarger, Esq. STONEBARGER LAW 75 Iron Point Circle, Suite 145 Folsom, CA 95630 Telephone: (916) 235-7140 Facsimile: (916) 235-7141 E-mail: rlambert@stonebargerlaw.com gstonebarger@stonebargerlaw.com - and - Niall McCarthy, Esq. Anne Marie Murphy, Esq. COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road Burlingame, CA 94010 Telephone: (650) 697-6000 E-mail: nmccarthy@cpmlegal.com amurphy@cpmlegal.com Defendant-Appellee BEST BUY STORES, LP, is represented by: Jill Sharon Casselman, Esq. Michael A. Geibelson, Esq. ROBINS KAPLAN LLP 800 Lasalle Avenue, Suite 2800 Minneapolis, MN 55402 Telephone: (612) 349-0824 E-mail: jscasselman@rkmc.com mageibelson@rkmc.com BIG PICTURE: Appeals Ruling in "Williams" Suit to Fourth Circuit ---------------------------------------------------------------- Defendants Big Picture Loans, LLC, and Ascension Technologies, Inc., filed an appeal from a court ruling in the lawsuit entitled Lula Williams, Gloria Turnage, George Hengle, Dowin Coffy, and Felix Gillison, Jr., on behalf of themselves and all individuals similarly situated v. Big Picture Loans, LLC, Matt Martorello, Ascension Technologies, Inc., Daniel Gravel, James Williams, Jr., Gertrude McGeshick, Susan McGeshick, and Giiwegiizhigookway Martin, Case No. 3:17-cv-00461-REP-RCY, in the U.S. District Court for the Eastern District of Virginia at Richmond. The lawsuit alleges violations of the Racketeer Influenced and Corrupt Organizations Act. As previously reported in the Class Action Reporter, the lawsuit was filed on June 22, 2017, and assigned to the Hon. District Judge Robert E. Payne. Big Picture is a short-term loan company offering installment, or personal, loans. The appellate case is captioned as Lula Williams v. Big Picture Loans, LLC, Case No. 18-1827, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case states that case initial forms are due within 14 days.[BN] Plaintiffs-Appellees LULA WILLIAMS, on behalf of themselves and all individuals similarly situated, GLORIA TURNAGE, GEORGE HENGLE, DOWIN COFFY and FELIX GILLISON, JR., are represented by: Andrew Joseph Guzzo, Esq. Kristi Cahoon Kelly, Esq. Casey Shannon Nash, Esq. KELLY & CRANDALL PLC 3925 Chain Bridge Road Fairfax, VA 22030 Telephone: (703) 424-7570 Facsimile: (703) 591-0167 E-mail: aguzzo@kellyandcrandall.com kkelly@kellyandcrandall.com casey@kellyandcrandall.com - and - James Wilson Speer, Esq. VIRGINIA POVERTY LAW CENTER 919 East Main Street Richmond, VA 23219 Telephone: (804) 782-9430 Facsimile: (804) 649-0974 E-mail: jay@vplc.org Defendants-Appellants BIG PICTURE LOANS, LLC, and ASCENSION TECHNOLOGIES, INC., and Defendant MATT MARTORELLO are represented by: David Neal Anthony, Esq. Timothy James St. George, Esq. TROUTMAN SANDERS, LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-5410 E-mail: david.anthony@troutmansanders.com tim.stgeorge@troutmansanders.com Defendants-Appellants BIG PICTURE LOANS, LLC, and ASCENSION TECHNOLOGIES, INC., are represented by: Justin Alexander Gray, Esq. Karrie Sue Wichtman, Esq. ROSETTE, LLP 24355 Red Arrow Highway Mattawan, MI 48071 Telephone: (269) 283-5005 E-mail: kwichtman@rosettelaw.com jgray@rosettelaw.com Defendant MATT MARTORELLO is represented by: Jonathan Peter Boughrum, Esq. David Foster Herman, Esq. Richard L. Scheff, Esq. MONTGOMERY, MCCRACKEN, WALKER & RHOADS Avenue of the Arts 123 South Broad Street Philadelphia, PA 19109-0000 Telephone: (215) 772-7228 E-mail: jboughrum@mmwr.com dherman@mmwr.com rscheff@mmwr.com BMW FINANCIAL: Plaintiffs Directed to File Non-Opposition Notice ---------------------------------------------------------------- On June 22, 2018, in the case captioned MOHAMMAD SALIMI, et al., Plaintiffs, v. BMW FINANCIAL SERVICES NA, LLC, et al., Defendants, Case No. 12-cv-01754-JSW (N.D. Cal.), Defendant BMW Financial Services NA, LLC ("BMW") filed a motion (i) to vacate the Court's order granting in part and denying in part the Plaintiffs' motion for contempt and (ii) requesting an order of preliminary approval of a class action settlement. Counsel for BMW indicated that the request to vacate the Court's order on the motion for contempt was unopposed, but did not attach a declaration (or an attestation of any kind) from the Plaintiffs to this effect. It is therefore not clear to the Court whether the Plaintiffs, in fact, do not oppose BMW's request. Further, it is unclear from BMW's motion whether the Plaintiffs oppose or do not oppose BMW's request for an order of preliminary approval of a class action settlement. The deadline (July 6, 2018) for the Plaintiffs to file an opposition has passed, and the Plaintiffs have filed no opposition. Accordingly, the United States District Court for the Northern District of California directed the Plaintiffs to file either (i) a notice of non-opposition or (ii) a belated opposition to BMW's request to vacate the contempt order and request for preliminary settlement approval. A full-text copy of the District Court's July 12, 2018 Order is available at https://tinyurl.com/y7d2ke9z from Leagle.com. Mohammad Salimi & August Galarga, Plaintiffs, represented by Bryan Kemnitzer , Kemnitzer, Barron & Krieg, LLP, Dan Leo Gildor , Chavez & Gertler LLP, Elliot Jason Conn , Kemnitzer Barron and Krieg, LLP, Mark Andrew Chavez , Chavez & Gertler LLP, Nance Felice Becker , Chavez & Gertler LLP & Nancy Barron , Kemnitzer Barron & Krieg, LLP. BMW Financial Services NA, LLC, Defendant, represented by Michael John Hassen -- mjhassen@reallaw.us -- Reallaw, APC. Asset Acquisition Group, LLC, Defendant, represented by Michael John Hassen -- mjhassen@reallaw.us -- Reallaw, APC & Christopher H. Doyle -- chd@jmbm.com -- Jeffer Mangels Butler & Mitchell LLP. BRISTOL-MYERS: Kozyak Tropin Attorneys Discuss SCOTUS Ruling ------------------------------------------------------------ Tal J. Lifshitz, Esq., and Rachel Sullivan, Esq., of Kozyak Tropin and Throckmorton, in an article for Daily Business Review, report that class action defendants are attempting to rewrite longstanding principles of personal jurisdiction, trying to defeat certification of nationwide classes by arguing that a court lacks personal jurisdiction over out-of-state class members' claims where the defendant does not reside in the court's forum state. The court cannot certify a class, the argument goes, unless it can establish personal jurisdiction over the claims of every out-of-state class member. Defendants base this argument on a flawed interpretation of the Supreme Court's recent opinion in Bristol-Myers-Squibb v. Superior Court of California, 137 S. Ct. 1773 (2017). Bristol-Myers was a mass products liability action brought by more than 600 individual plaintiffs in California state court against a pharmaceutical manufacturer, involving only California claims. The defendant challenged the state court's jurisdiction over nonresidents' claims on the ground that neither the conduct challenged, nor those plaintiffs' injuries, had occurred in California. The court held that it lacked jurisdiction over the nonresidents' claims because they lacked any connection to California, and "the conduct giving rise to [their] claims [had] occurred elsewhere." Justice Sonia Sotomayor noted in her dissent that the court "had not confronted the question whether its opinion . . . would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there." The court was clear, however, that its decision would not upset its longstanding personal jurisdiction jurisprudence, noting that "settled principles regarding specific jurisdiction controlled the case." And the court did address the opinion's effect on class actions, if only by implication. The respondents had argued that if personal jurisdiction did not attach to nonresidents' claims, future federal litigants would be prohibited from aggregating claims resulting in, among other things, a multiplication of lawsuits. Respondents reasoned: District courts rely in such cases on their home states' long-arm statutes—which typically extend to the same due process limit—for their personal jurisdiction . . . The same multiplication of litigation thus inevitably results; the federal courts will have no more power to hold these cases together than their state court counterparts. That seemingly includes even the most obviously appropriate class actions . . . under Rule 23." Seemingly addressing the respondents' conclusions, the Supreme Court assured that its "straightforward application" of settled personal jurisdiction principles "would not result in the parade of horribles that respondents conjure up." Thus, by insisting that its opinion only affirmed well-settled personal jurisdiction jurisprudence, and that the "parade of horribles" imagined by respondents would be avoided, the court at least implicitly held that its opinion would not disturb the longstanding rule that personal jurisdiction lies with the named parties of a suit, not absent class members. District courts have already recognized Bristol-Myers' limitations. In Chinese-Manufactured Drywall Products Liability Litigation, for example, the court explained that Bristol-Myers "did not change existing law," noting "a significant difference" between mass tort actions, where due process protections might be lacking for defendants haled into court by nonresident plaintiffs, and class actions. Similarly, in Fitzhenry-Russell v. Dr. Pepper Snapple Group, the court held that Bristol-Myers does not extend to class actions because, unlike in a mass tort action where "each plaintiff was a real party in interest to the complaints, . . . in a putative class action . . . one or more plaintiffs seek to represent the rest of the similarly situated plaintiffs," 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017). Other courts have recognized Bristol Myers' limitations, though not ultimately reaching the issue of its application to class actions. And a few have even gone the other way and refused to exercise jurisdiction over the claims of out-of-state named plaintiffs and out-of-state absent class members. But these decisions are devoid of analysis and ultimately fail to persuade. At bottom, though, the Bristol-Myers opinion makes good sense as far as it goes. But it goes nowhere near federal class actions. By conducting a rigorous Rule 23 analysis and confirming that named plaintiffs, their counsel, and their claims fairly represent the class, a federal court sufficiently resolves the due process concerns that compelled dismissal in Bristol-Myers. The majority of courts to address the application of Bristol-Myers in the class action context have appropriately concluded as much. Courts across the country should continue to follow suit. Tal J. Lifshitz is an attorney in Kozyak Tropin and Throckmorton's complex litigation department. He can be reached at tjl@kttlaw.com Rachel Sullivan is an attorney and of counsel to Kozyak Tropin & Throckmorton's complex litigation department. She can be reached at rs@kttlaw.com [GN] BRIUS MANAGEMENT: Anderson Sues over Nursing Facility Services -------------------------------------------------------------- PAULA ANDERSON, on behalf of herself and similarly situated California residents, the Plaintiff, v. SHLOMO RECHNITZ; BRIUS MANAGEMENT CO., INC; POINT LOMA REHABILITATION CENTER, LLC; ROCKPORT ADMINISTRATIVE SERVICES, LLC; and DOES 1 through 250, inclusive, the Defendants, Case No. BC713766 (Cal. Super. Ct., July 17, 2018), alleges that Plaintiffs and members of the Class relied on the representations of the Defendants that they would be provided with minimum standards of care consistent with the requirements of Health & Safety Code section 1599.1(a) as incorporated into Title 22 C.C.R. section 72527(a)(25), yet did not receive this promised standard of care and suffered pecuniary harm by being deprived of the value of payments made for skilled nursing services when these services were not actually rendered consistent with the Defendants' representations. According to the complaint, the Defendants make representations to prospective residents and their families and others similarly situated via their uniform admission agreements. Pursuant to this uniform representation that the services provided by the Defendants would meet the particularized standards as set forth in the Resident Bill of Rights attached to the uniform Admission Agreement, the Defendants were to provide all residents of the nursing facility services consistent with the mandatory requirements of California Health & Safety Code. Specifically, the services represented by the Defendants that they would provide to each resident, via the contractual Admission Agreement arrangement with each resident, was explicitly stated by the Defendants to include the obligation, and representation as to the standard of care to be provided, that the Facility would ensure the rights afforded to all residents of skilled nursing facilities under Health & Safety Code section 1599.1 (a) and 22 C.C.R. section 72527(a)(25), most specifically the right to live in a facility that employs "an adequate number of qualified personnel to carry out all of the functions of the facility."[BN] The Plaintiff is represented by: Stephen M. Garcia, Esq. GARCIA, ARTIGLIERE & MEDBY One World Trade Center, Suite 1950 Long Beach, CA 90831 Telephone: (562) 216 5270 Facsimile: (562) 216 5271 E-mail: edocs@lawgarcia.com - and - Robert S. Arns, Esq. Julie C. Erickson, Esq. THE ARNS LAW FIRM 515 Folsom Street San Francisco, CA 94105 Telephone (415) 495 7800 Facsimile (415) 495 7888 BUFFALO WILD WINGS: Tests Future of Class Action Waivers -------------------------------------------------------- Bloomberg reported that a lawsuit accusing Buffalo Wild Wings Inc. of owing wages to thousands of workers could soften the blow for worker advocates reeling from a recent U.S. Supreme Court decision to legalize class action waivers. The high court May 21 ruled in Epic Systems Corp. v. Lewis that companies can require workers to sign arbitration agreements waiving their rights to file a class or collective action. The decision was a major victory for employers who want to include these clauses in employment contracts as a means of limiting their exposure to costly and embarrassing litigation. The ruling was seen as a devastating setback to workers' rights to band together in court. Businesses now can resolve employee disputes individually in an arbitration process that can leave workers without legal representation because plaintiff attorneys often can't afford to defend one worker at a time. But the nearly 400 individual arbitrations that Buffalo Wild Wings is facing over wage-and-hour disputes may represent a cautionary tale for employers and a glimmer of hope for workers and their attorneys. Lawyers for workers at the restaurant chain are pursuing those cases individually because the employees signed arbitration agreements waiving their right to bring a class action against the company. Rather than accept arbitration as an automatic loss, a select number of firms want to flood a business with mass individual arbitration filings to gain leverage for a settlement. Employers, generally responsible for footing the bill of the arbitration proceeding, can easily run up a tab of six figures or more if they encounter a plaintiff's counsel determined to deliver arbitrations en masse. "The requirement to go one by one by one for workers in arbitration doesn't help employers either," Cathy Ruckelshaus, general counsel of the National Employment Law Project, told Bloomberg Law. "It's incredibly expensive and if they're paying for it, at some point the employers are going to say, ‘OK, 10 workers is enough. We don't need to talk to all 5,000 workers.'" Executing the Threat By siding with industry on the waivers' legality, the justices injected fresh relevance into a 2015 class action alleging Buffalo Wild Wings failed to pay the minimum wage to tipped workers across the country. The two sides later determined that 822 of those seeking to join the action couldn't proceed in court because they had signed arbitration agreements that include a class action waiver. Last fall, several weeks after oral arguments in Epic Systems, a pair of plaintiffs' firms delivered a preemptive message: If an employer wants to insist on resolving workplace claims out of court, that means arbitration 391 times. Buffalo Wild Wings lawyers are in the early stages of negotiating a settlement with the workers. The outcome could mean millions of dollars split among the 5,500 employees who had signed on to the original complaint, including the 391 who are now split off into arbitration. More broadly, employment lawyers think a big settlement could lead other businesses to take the threat of mass arbitration more seriously. "The defendant never believes that you're going to actually do it, so once you do and you've made good strategic decisions about who you're moving forward with, that's a powerful thing to do," Racchana Srey, who chairs the wage-and-hour practice group at the National Employment Lawyers Association, told Bloomberg Law. "I think it would serve as a deterrent to other employers out there who want to take the same strategy of enforcing these agreements." Srey is a partner at Nichols Kaster in Minneapolis, one of a handful of national plaintiff firms with the manpower to pursue multiple arbitrations on behalf of workers who waived their right to bring collective claims in court. Lee Schreter, who co-chairs wage-hour practice at the nation's largest management-side workplace law firm, isn't persuaded that plaintiffs' lawyers typically have the will to execute on this threat. "It can be an expensive proposition" for employers, "but it can be as well for plaintiffs' counsel, because they have to be able to staff and defend individual arbitrations," Schreter, a shareholder at Littler Mendelson in Atlanta, told Bloomberg Law. "My experience is that they get into four or five cases and the appeal of that approach quickly loses steam." Can Mass Filings be Replicated? The procedural history of the Buffalo Wild Wings case offers a blueprint for specialized scenarios, but not one that can be replicated as frequently as worker advocates would desire. Attorneys from Outten & Golden in New York and Werman Salas in Chicago identified 391 employees to bring individual arbitrations because they earlier had represented those workers in the class action. For now, progress on that front is shielded because arbitration proceedings are kept confidential. But the judge handling the 2015 litigation over the same initial wage violation claims agreed in June to delay a hearing to allow the parties time to negotiate a settlement. This suggests that the operational and financial headaches of 391 arbitrations may have pressured the company to settle. Another factor possibly influencing the company's willingness to settle is that Buffalo Wild Wings was purchased by a Roark Capital Group, the owner of Arby's, late last year. The deal was finalized in February. A Buffalo Wild Wings spokeswoman did not respond to a request for comment on why the company is trying to settle and what role, if any, the new ownership played in the decision. Attorneys for both the company and the workers declined to comment. Joe Sellers, a partner at Cohen Milstein in Washington, has been strategizing how plaintiffs' lawyers can rebound from Epic Systems. He cautioned that it's much harder to find the volume of workers needed to engage in mass arbitration when lawyers don't have a list of clients from a class action. Attorneys could pick up clients by scanning informal networks that employees have among themselves or through referrals from unions or worker centers. "It's not to say that this could never be replicated, but I think the likelihood of this kind of scenario arising several years from now, where in the event there's a significant increase in the number of class waivers in enforceable arbitration clauses, is going to make this kind of strategy more challenging or less likely to be available," Sellers told Bloomberg Law. [GN] CALIFORNIA CEMETERY: Worker Files Suit to Recover Unpaid Wages -------------------------------------------------------------- John Ortiz, on behalf of himself and all other aggrieved employees, Plaintiffs, v. California Cemetery and Funeral Services LLC, and Does 1-10, inclusive, Defendants, Case No. 18CV331774, (Cal. Super., July 24, 2018), seeks recovery of all wages for overtime hours worked, minimum wages for all hours worked, redress for Defendant's failure to provide meal and rest periods, failure to pay all earned wages at the conclusion of employment, failure to adequately reimburse business expenditures incurred and required by their jobs and failure to furnish timely statements accurately showing, among other things, the total hours worked during each pay period all in accordance with California Labor Laws. California Cemetery and Funeral Services is a provider of funeral services throughout the state of California where John Ortiz was employed by Defendant from April 19, 2003 to January 31, 2018 as a driver, transporting and cosmetizing bodies. [BN] Plaintiff is represented by: Robert Ottinger, Esq. Ashley Pellouchoud, Esq. THE OTTINGER FIRM, P.C. 535 Mission Street San Francisco, CA 94133 Tel: (415) 262-0096 Fax: (212) 571-0505 Email: robert@ottingerlaw.com CAMPBELL SOUP: "Cabrega" Suit Alleges Deceptive Practices --------------------------------------------------------- Chelse Cabrega and Jamie Joslin, on behalf of themselves and others similarly situated v. Campbell Soup Company, Case No. 2:18-cv-03827 (E.D. N.Y., July 2, 2018), is brought against the Defendant for violations of the N.Y. Deceptive and Unfair Trade Practices Act and California's Consumer Legal Remedies Act. The Plaintiffs bring this class action against the Defendant for the deceptive practice of marketing its soups as having "No Preservatives Added" and or claiming to be "Made with Patience, Not Preservatives," when they actually contains the preservatives citric acid and ascorbic acid, says the complaint. The Plaintiff Jamie Joslin is a resident of Riverside County, California and purchased Campbell's Slow Kettle Style Sweet Tomato and Bisque soup for personal consumption. The Plaintiff Chelse Cabrega is a resident of the State of New York and purchased Campbell's Homestyle Harvest Tomato and Basil soup for personal consumption. The Defendant Campbell is a company organized under the laws of New Jersey with its address at 1 Campbell Place, Camden, NJ 08103, and address for service of process at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The Defendant develops, markets, and sells food products under the "CAMPBELL" brand name throughout the United States. [BN] The Plaintiffs are represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 CANADA: Long-Term Care Patients' Rights Group Files Class Action ---------------------------------------------------------------- Charlie Fidelman, writing for Montreal Gazette, reports that Daniel Pilote, 56, who has lived in a St-Jean-sur-Richelieu long-term care nursing facility for the past four years, says medical staff there are so overworked that he's afraid no one will get to him in time should his breathing machine fail. Paralyzed from the neck down with muscular dystrophy, Mr. Pilote says he's being rough-handled by staff that has about 10 minutes to wash and dress him each day. Mr. Pilote has become the plaintiff in a class-action suit that a patients' rights group is seeking to launch against Quebec's network of long-term care centres for providing its residents with "bad service" the lawsuit describes as abusive. The Conseil pour la protection des malades (CPM) has spent months preparing the suit, which cites "deplorable and shameful" conditions inflicted on patients "too vulnerable to complain." "Fundamentally, it's about dignity, how we treat our elderly people in the system," said lawyer Philippe Larochelle, an expert in class-action procedures who filed the suit. "It boils down to a question of dignity as protected by the Quebec Charter of Human Rights and Freedoms." The class action cites 22 examples of living conditions it contends are unacceptable, ranging from quality of care and food, to poor hygiene and the maintenance of the centres. "For example, in all the centres, the unwritten norm is that patients who have difficulty walking are forced to wear diapers," said patients-rights advocate Paul Brunet, head of the Conseil pour la protection des malades. "Why do they have to wear diapers if they are not incontinent? Shame on them. It's disrespect to human dignity." The suit seeks compensatory damages of $250 to $750, as well as exemplary damages of $100, for each month spent within the network by its 37,000 users during the past three years, an award that could add up to a minimum of $500 million. The class action targets all public long-term centres in the province as well as some private institutions where the CPM was able to gather complaints from residents. It's also based on a collection of media stories that paint a gloomy picture, for example, of residents getting one bath a week, being left for hours in soiled diapers and suffocating in rooms without air conditioning. Mr. Brunet blamed the decline of nursing home care on the health reforms of 2015 that sought to save the health system about $200 million a year by cutting middle-management positions. "Mr. Pilote called me because his neighbour almost died when his breathing apparatus failed. The man died the next day and Mr. Pilote was afraid he would be next," Mr. Brunet said. "Someone wasn't there at the right time." The decline in services has come to a point where it is now infringing on patients' constitutional rights, he said. Government officials declined to comment because the class-action suit is likely to go before the courts, said Catherine Audet, press attache to Quebec Health Minister Gaetan Barrette. In a statement sent by email, Ms. Audet said her government has made major investments to improve infrastructure at long-term facilities and added 14 new nursing homes for a total of $470 million since 2014. "Never has a government invested so much to improve the quality of life of the people who live there," she said, from reviewing the food and hiring more staff, to adding a second bath a week for those residents who want it. Every day, hundreds of orderlies, nurses and other health professionals work relentlessly in nursing homes to care for the elderly, she said. Well, that's not good enough, Mr. Brunet said. The official government response that "we're doing the best with what we have" whenever his organization complained of poor services in nursing homes just doesn't cut it, he said. "I'm sorry, that's insufficient -- according to the constitutional rights of patients to get safe, adequate and respectful service that respects their personal integrity," Brunet said. "These are charter rights. You can't limit them because of lack of resources." Mr. Larochelle, the lawyer handling the suit, said he would not rule out extending the mandate of the legal action to other health facilities that are failing to meet their duties of care. "The suit is a cry of alarm that may act as a driving force for change so people can get the resources they need with dignity," he said. "I have heard horror stories of people who have died in nursing homes because of an overdose." Long-term residences are supposed to be a "milieu de vie" or a living environment, Mr. Larochelle said, "and I haven't heard of one that's exemplary." Anyone interested in participating in the class-action suit, whether nursing home residents or families of patients, can register online at either Mr. Larochelle's website or through the CPM, the patients' rights group. [GN] CAPITAL ONE: Fourth Circuit Appeal Filed in "Brown" Class Suit -------------------------------------------------------------- Plaintiff Ella S. Brown filed an appeal from a court ruling in the lawsuit entitled Ella Brown v. Capital One, N.A., Case No. 8:17-cv-03076-GJH, in the U.S. District Court for the District of Maryland at Greenbelt. The appellate case is captioned as Ella Brown v. Capital One, N.A., Case No. 18-1816, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case states that case initial forms are due within 14 days.[BN] Plaintiff-Appellant ELLA S. BROWN, on behalf of herself and all others similarly situated, is represented by: Cory Lev Zajdel, Esq. Z LAW, LLC 2345 York Road Timonium, MD 21093 Telephone: (443) 213-1977 E-mail: clz@zlawmaryland.com Defendant-Appellee CAPITAL ONE N.A. is represented by: Jonathan S. Hubbard, Esq. TROUTMAN SANDERS, LLP 1001 Haxall Point Richmond, VA 23219 Telephone: (804) 697-1407 E-mail: jon.hubbard@troutman.com - and - Syed Mohsin Reza, Esq. TROUTMAN SANDERS, LLP 1850 Towers Crescent Plaza Tysons Corner, VA 22182 Telephone: (703) 734-4351 E-mail: mohsin.reza@troutman.com CASTRO CONSTRUCTIVE: Romero Seeks Unpaid Wages under FLSA --------------------------------------------------------- VICTOR ROMERO on his own behalf and other similarly situated, the Plaintiff, v. CASTRO CONSTRUCTIVE SOLUTIONS, INC. and KD CONSTRUCTION OF FLORIDA, INC., the Defendants, Case No. 8:18-cv-01723-SDM-JSS (M.D. Fla., July 17, 2018), seeks to recover unpaid wages under the Fair Labor Standards Act. According to the complaint, the Plaintiff worked as an hourly worker for Defendants and performed related activities for Defendants in Hillsborough County, Florida. The Plaintiff routinely worked overtime, but was not paid overtime for all of the hours that he worked, at the correct rate of pay. Castro Constructive Solutions specializes in reinforcing steel placement. The Company offers an apprenticeship program for those serious about becoming skilled craftsmen of the trade.[BN] The Plaintiff is represented by: W. John Gadd, Esq. Bank of America Building 2727 Ulmetron Rd., Ste. 250 Clearwater, FL 33762 Telephone: (727) 524 6300 E-mail: wjg@mazgadd.com CATHERINE ROSELLI: Faces Class Action Over FDCPA Violations ----------------------------------------------------------- Nathan Hale, writing for Law360, reports that a South Florida law practice was hit with a putative class action in federal court on July 9 alleging violations of the Fair Debt Collection Practices Act for stating incorrect and confusing information in the disclosures within a debt collection notice. Plaintiff Victor Gabbai filed suit against the Fort Lauderdale-based Law Office of Catherine Roselli and as yet unknown individuals and companies for which Roselli attempted to collect debts. The case is captioned Gabbai v. The Law Office of Catherine Roselli et al, Case No. 0:18-cv-61554 (S.D. Fla.). The case is assigned to Judge Judge William P. Dimitrouleas. The case was filed July 9, 2018. [GN] CEDAR RAPIDS, IA: Ruling in 2008 Flood Class Action Upheld ---------------------------------------------------------- Erianne Leatherman, writing for Legal Newsline, reports that the Iowa Supreme Court has upheld a district court ruling that prohibits a group of property owners from suing railways for damages related to a 2008 Iowa flood. In the June 22 ruling, Justice Edward Mansfield said, "After careful review of the (Federal Interstate Commerce Commission Termination Act) and authorities interpreting it, we conclude this federal law does indeed preempt the property owners' action alleging that the railroads' design and operation of their railroad bridges resulted in flood damage to other properties." In 2013, a group of property owners filed the class action lawsuit against the Cedar Rapids and Iowa City Railway Co., Union Pacific Railroad Co., Union Pacific Corp. and Alliant Energy Corp., alleging the companies were responsible for damage to their property caused by the 2008 flood. The lawsuit sought $6 billion in damages. The companies own bridges that traverse the Cedar River that were washed out and "worsened the effects of the flooding for the other property owners," the opinion said. The defendants parked railcars loaded with rocks on the bridges in an effort to weigh them down and prevent them from washing away during the flood, but two of the four bridges collapsed two days later and the railcars fell and clogged the Cedar River, allegedly causing or worsening the plaintiffs' property damage, the opinion said. The lawsuit had been moved to U.S. District Court for the Northern District of Iowa on the basis that state law claims were preempted by federal law. That court agreed and the case was dismissed. However, the U.S. Court of Appeals for the 8th Circuit reversed and remanded it. The court had to decide whether the plaintiffs' state-law damage claims against the railways are preempted by the ICCTA. Mansfield said that "not all state-law tort claims involving railroads are preempted by the ICCTA. But state tort claims like the ones alleged here that involve second-guessing of decisions made by railroads to keep their rail lines open are expressly preempted by Title 49 § 10501(b) of the ICCTA." Justices Brent Appel, David Wiggins and Daryl Hecht filed a dissenting opinion. "Whether the United States Supreme Court wishes to more closely align the caselaw with congressional intent and the court's traditional approach to preemption remains to be seen," Appel wrote. "In the absence of Supreme Court action, this case now sends a clear message to Congress, namely, that if Congress wishes to prevent preemption of nonregulatory state tort law and statutory law claims when it enacts economic deregulation, it had better state so expressly. "The limitations of ordinary language in economic deregulation legislation are no longer a reliable barrier to expansive approaches to implied preemption. For the above reasons, I would not run for the exit, but would reverse the holding of the district court." [GN] CENTERPLATE OF DELAWARE: Must Face Labor Class Action ----------------------------------------------------- Sophia Morris, writing for Law360, reports that a California federal judge on July 10 declined to dismiss a proposed class action accusing a catering company of labor law violations, including failing to provide adequate meal and rest breaks to employees, saying that the claims are not the same as the ones addressed by an earlier wage-and-hour settlement involving the company. U.S. District Court Judge Lucy H. Koh said that Centerplate of Delaware Inc. had not shown that plaintiffs Monique Raquedan and Ronald Martinez should be barred from bringing their claims The case is captioned Raquedan v. Centerplate of Delaware Inc., Case No. 5:17-cv-03828 (N.D. Calif.). The case is assigned to Judge Lucy H. Koh. The case was filed July 5, 2017. [GN] CHICAGO, IL: Blaha Calls Fines & Penalties 'Excessive' ------------------------------------------------------ MIKE BLAHA, individually and of behalf of all others similarly situated, Plaintiff, v. CITY OF CHICAGO, a Municipal Corporation, the Defendant, Case No. 2018CH08945 (Ill. Cir. Ct., Cook Cty., July 17, 2018), complains that in the City of Chicago something as simple as failing to affix a city sticker to one's car windshield or an expired parking meter can cost residents hundreds of dollars in fines and penalties, and that there are a number of minor standing, parking and compliance violations for which the City imposes hefty fines and penalties, all of which are funneled into the City's own system of administrative adjudication where the typical rules of evidence and civil procedure are disregarded. Because administrative courts do not afford the same rights and due process as state courts, Illinois law limits their authority to adjudicate only minor violations that carry relatively minor fines and penalties. According to Blaha, the City of Chicago has demanded and received fines, penalties and other amounts from Plaintiff and other members of the Class under an unconstitutional ordinance and for violations for which the City is preempted from administratively adjudicating. The complaint says all such liabilities, fines, penalties and other amounts stemming from city ordinance violations are void ab initio, and the City has collected fines, penalties and other amounts from Plaintiff and members of the Class to which it was not entitled. The City knowingly appreciated and accepted this benefit, which has resulted and continues to result in an inequity to Plaintiff and members of the Class. The City has thus unjustly received and retained a benefit belonging to Plaintiff and members of the Class, who have therefore suffered a commensurate detriment. The City's retention of this benefit violates the fundamental principles of justice, equity and good conscience. Chicago, on Lake Michigan in Illinois, is among the largest cities in the U.S. Famed for its bold architecture, it has a skyline punctuated by skyscrapers such as the iconic John Hancock Center, 1,451-ft.[BN] The Plaintiff is represented by: Myron M. Cherry, Esq. Jacie C. Zolna, Esq. Benjamin R. Swetland, Esq. Jessica C. Chavin, Esq. MYRON M. CHERRY & ASSOCIATES LLC 30 North LaSalle Street, Suite 2300 Chicago, IL 60602 Telephone: (312) 372 2100 E-mail: mcherry@cherry-law.com jzolna@cherry-law.com bswetland@cherry-law.com jchavin@cherry-law.com CHICAGO, IL: ECHA Held in Contempt Over Warrantless Searches ------------------------------------------------------------ Lauren Cross, writing for nwi.com, reports that a federal magistrate judge has sided with the American Civil Liberties Union by holding the East Chicago Housing Authority in contempt of court for violating a previous order that barred the local housing agency from warrantless searches. U.S. District Court Magistrate Judge Paul R. Cherry in his ruling stated ECHA has violated a preliminary injunction entered in October 2016. The injunction was born from a March 2016 lawsuit that challenged ECHA's practice of conducting inspections and apartment searches without tenants' voluntary consent, without a warrant, and through use of drug-sniffing dogs in the hallways. The suit alleged such searches violated the Fourth Amendment. At the center of the latest American Civil Liberties Union challenge is strongly worded language ECHA chose for a blanket consent form that -- once signed by tenants -- gave ECHA permission to gain access to apartment units for inspections. If the tenant refused to sign, ECHA warned them with a disclaimer at the bottom of the form -- presented in all-capital letters — that they could be threatened with possible eviction in a court of law, court records show. Shawn Polk, a former ECHA resident with interest in the matter, argued in court filings the form does not advise tenants of their right to revoke consent at any time, and that ECHA's form implies the opposite. He further argued residents "are being coerced" into providing consent for searches. Judge Cherry agreed with Mr. Polk's interpretation. "The Court finds that the plain language of the Blanket Consent Form, for those who sign it, is coercive and conditions the signatory's continued residency in the building on continuing to give consent once the form is signed for the remainder of the tenant's residency with ECHA," Cherry writes in his findings. Consent must be "voluntary — that is freely and intelligently given" and "cannot be coerced by 'explicit or implicit means, by implied threat or covert force,' " Judge Cherry continues, citing a previous court case. Judge Cherry has ordered ECHA staff to "cease and desist" from using the blanket consent form in any of its buildings. Polk filed a petition in February 2017 seeking to hold ECHA in contempt of court and, on that same day, Edith Bradshaw, a longtime John B. Nicosia Building resident, filed a motion to intervene as a representative in the class action lawsuit. Ms. Bradshaw, 67, alleged ECHA conducted a warrantless "housekeeping" inspection of her apartment on Nov. 7, 2017, despite her explicit objections. Ms. Bradshaw alleges she was hospitalized for 10 days starting Nov. 1, and told a building manager the following day she did not want anyone to enter her apartment before her release from the hospital, according to court records. She returned Nov. 10 to find a notice from ECHA management stating that staff inspected her unit, anyway. When she asked staff to tell her if they had a warrant, they refused to say either way, court records state. Ms. Bradshaw and the ACLU have argued ECHA did not have a warrant for any of their November 2017 entries for inspections. The court determined no sanctions against ECHA are necessary at this juncture, noting the building manager, Clara Salinas, has ceased making entries at the John B. Nicosia Building without consent or a warrant after receiving notice of Bradshaw's complaint filed in federal court. Nick Snow, attorney for ECHA, said he filed an objection to Cherry's ruling on behalf of ECHA, which argues the manner in which the form was presented to tenants "is critical to the determination of whether or not the form is so unreasonable as to rise to the level of a finding of contempt." "At this time, although we object to the finding of contempt, ECHA has stopped using the forms in question until a definitive ruling is made. At that time, we will review the ruling of the court and take the necessary steps to comply with it," ECHA attorney Snow said in a statement to The Times. ECHA also has proposed lease revisions to HUD that further advise tenants of their right to refuse consent and more clearly define procedures for gaining entry, court records show. Judge Cherry has ordered Mr. Polk be awarded reasonable costs and attorney fees and that Bradshaw be awarded $100 in damages and reasonable costs and attorney fees. [GN] CHILDREN'S MERCY: Faces Data Breach Class Action ------------------------------------------------ Kelsey Ryan, writing for The Kansas City Star, reports that a Kansas City law firm filed a class action lawsuit against Children's Mercy Hospital after personal data from more than 60,000 individuals may have been compromised as part of an email phishing scam that targeted hospital employees. The suit, which was filed on July 10 in Jackson County Circuit Court, is the fourth lawsuit filed by the firm McShane and Brady over the disclosure of patient medical records by the hospital. "I thought I was making the best decision for my child by taking him to Children's Mercy for care," said one of the suit's plaintiffs in a statement through an attorney. "This is the second letter I have received stating his private medical information has been released. These two violations have really shaken my trust in Children's Mercy Hospital." Specifically, the lawsuit accuses the hospital of breaching its fiduciary duty to protect patient privacy under Missouri law. "Patients trust health care providers with our medical information and when that is released without our authorization, they're breaking our trust and breaching what we've asked them to do," said Maureen Brady, a partner at McShane and Brady. "When we pay them for our treatment, part of that price point goes to training and computer software and records maintenance and making sure our privacy is kept." A Children's Mercy spokeswoman said the hospital does not comment on pending litigation. Children's Mercy previously said that emails sent to employees gave the appearance they were from a trusted source and often contained links to a phony login page on a fake website. That gave hackers access to the employee accounts if they entered their user names and passwords. The compromised data may have included patient names and information, medical record numbers, dates of hospital stays and procedures, diagnoses and conditions and other clinical information, according to a letter sent from Children's Mercy to those affected. Children's Mercy said its IT team discovered unauthorized access to multiple employee email accounts in December 2017 and January 2018. The letter said the hospital is investigating the incidents, notifying patients, and that it was not aware of specific misuse of the patient information. As a precaution, Children's Mercy automatically enrolled the affected patients in the AllClear ID program for a year at no cost, the letter said. A spokesperson said Children's Mercy has established a call center (1-855-354-4116) and an informational webpage to provide answers to families that may have been affected. While the hospital posted a notification about the incident on its website in January, families in the area still were getting notices that their information may have been compromised. Brittany McWilliams of Tonganoxie, Kan., told The Star that her family received a letter. She said she contacted the monitoring company, but didn't get more answers, such as specifics on how the breach occurred or how this information could affect her child. "Now I have this letter and no more real answers, other than 'Hey, here, you can be monitored,' " Ms. McWilliams said, calling it a "Band-Aid for the problem." She said it was frustrating that her family was just now being notified of the potential breach when it occurred in January. "It's frustrating because they've had months to use my kiddo's information if they got a hold of it," she said. "I can't fix it. I can't change it. We just have to deal with it." A spokesperson with the hospital said that they have notified those affected in batches as they have progressed through the large amount of data that had to be evaluated. Because the lawsuit does not specify an amount to be awarded to the more than 63,000 individuals affected, it is unclear how much money individuals could potentially get from the suit. If the case proceeds and there is an award or settlement, all of those affected would be notified automatically and don't have to contact the law firm to join the case first. This isn't the only data breach of Children's Mercy in recent years, and it isn't the first lawsuit over Children's Mercy privacy breaches. The firm also filed another class action suit against the hospital earlier this year for a 2017 incident where the personal information from more than 5,500 people was put on a personal website by a physician. The breach included names, dates of birth, diagnoses and conditions. In order to prevent a similar breach from happening in the future, "CMH reviewed and updated policies, created a new online course, retrained employees, (the) physician received monetary sanctions, and conducted additional counseling," according to a federal health care breach website. The hospital was also recently sued for a 2016 incident where paper records for more than 200 patients were stolen from the trunk of a hospital employee's vehicle. And it settled a suit with a single plaintiff when, in 2015, a physician from Children's Mercy took the child's medical records home and they were stolen from her car while it was parked at Loose Park. [GN] CHRISTY INC: U.S. Gov't Seeks Dismissal of Patent Class Action -------------------------------------------------------------- Suzanne Monyak, writing for Law360, reports that the government has asked the Court of Federal Claims to scrap a $100 million class action challenging the cancellation of an Oklahoma company's patent in an America Invents Act review, arguing the company cannot skirt jurisdictional rules by masking an appeal of a Patent Trial and Appeal Board ruling as a constitutional claim. The U.S. Department of Justice argued in its motion to dismiss on July 9 that Oklahoma-based Christy Inc. cannot claim that the PTAB's decision to cancel Christy's vacuum cleaner patent violates the takings clause. [GN] CIGNA CORP: Zhu Files ERISA Class Action in S.D. Calif. ------------------------------------------------------- Jianliang Zhu and Joyce Allen, on behalf of themselves and all others similarly situated, Plaintiffs, v. Cigna Corporation, Cigna Health and Life Insurance Company, American Specialty Health Incorporated and American Specialty Health Group, Inc., Defendants, Case No. 18-cv-01029 (S.D. Cal., May 23, 2018), seeks equitable and injunctive relief, costs of suit, including reasonable attorneys' fees and such other and further relief under the Employee Retirement Income Security Act of 1974. Cigna Corporation and its subsidiaries allegedly misappropriated millions of dollars from Cigna members and employers who sponsor Cigna-administered health insurance plans. Cigna secretly inflates member and plan responsibility to pay for claims and its vendors, American Specialty Health Incorporated and American Specialty Health Group, Inc. under the false pretense that their charges are medical expenses and secretly assess these charges to members and plans as part of members' and plans' financial responsibility for health care claims. American Specialty Health Incorporated and American Specialty Health Group, Inc. administers physical therapy and other benefits and provides claims administration for physical therapy services for Cigna. [BN] Plaintiff is represented by: Anthony F. Maul, Esq. THE MAUL FIRM, P.C. 101 Broadway, Suite 3A Oakland, CA, 94607 Tel: (510) 496-4477 - and - Steven A. Schwartz, Esq. Jessica L. Titler, Esq. CHIMICLES & TIKELLIS LLP 361 West Lancaster Avenue Haverford, PA 19041 Tel: (610) 642-8500 Fax: (610) 649-3633 - and - Jason M. Knott, Esq. ZUCKERMAN SPAEDER LLP 1800 M Street NW, Suite 1000 Washington, DC 20036 Tel: (202) 778-1813 Fax: (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 Tel: (212) 704-9600 Fax: (212) 704-4256 CIM GROUP: Blumenthal Nordrehaug Files Labor Class Action --------------------------------------------------------- The Los Angeles employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit that alleges CIM Group, L.P., failed to provide their commissioned employees with meal and rest periods in accordance with the California Wage Order and Labor Code. The class action lawsuit, Case No. BC709666 is currently pending in the Los Angeles County Superior Court for the State of California. A copy of the Complaint can be read here. According to the class action Complaint, CIM Group, L.P., allegedly violated the applicable sections of the California Labor Code and the requirements of the Industrial Welfare Commission ("IWC") Wage Order, CIM Group, L.P., as a matter of company policy, practice and procedure, intentionally and knowingly failed to compensate their California non-exempt employees at the correct rate of pay for all overtime worked. This uniform policy and practice of CIM Group, L.P., is intended to purposefully avoid the payment of the correct overtime compensation as required by California law which allowed CIM Group, L.P., to illegally profit and gain an unfair advantage over competitors who complied with the law. The complaint also alleges PLAINTIFF was also from time to time unable to take off duty meal and rest breaks and was not fully relieved of duty for meal periods. PLAINTIFF was required to perform work as ordered by DEFENDANT for more than five (5) hours during a shift without receiving an off-duty meal break. DEFENDANT allegedly provided PLAINTIFF with a pay stub that failed to accurately display PLAINTIFF's correct rates of overtime pay and payments for missed meal and rest periods for certain pay periods in violation of Cal. Lab. Code§ 226(a) Blumenthal Nordrehaug Bhowmik De Blouw LLP, is a California employment law firm that dedicates its practice to helping employees, fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. The firm has offices located in San Diego, Los Angeles, Riverside, San Francisco, Sacramento and Chicago. [GN] CLAY COUNTY, AR: Olsen Seeks Overtime Compensation under FLSA ------------------------------------------------------------- JEFFERY OLSEN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CLAY COUNTY, ARKANSAS, the Defendant, Case No. 3:18-cv-00129-BSM (E.D. Ark., July 17, 2018), seeks declaratory judgment; monetary damages; liquidated damages; prejudgment interest; costs; and a reasonable attorney's fee, as a result of Defendant's policy and practice of failing to pay Plaintiff and other similarly situated individuals proper overtime compensation under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Clay County is a county located in the U.S. state of Arkansas. As of the 2010 census, the population was 16,083. The county has two county seats, Corning and Piggott.[BN] The Plaintiff is represented by: Stacy Gibson, Esq. Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221 0088 Facsimile: (888) 787 2040 E-mail: stacy@sanfordlawfirm.com chris@sanfordlawfirm.com josh@sanfordlawfirm.com CLEMENS FOOD: Pork Consumers File Antitrust Class Action --------------------------------------------------------- Consumer rights law firm Robbins Arroyo LLP on July 10 disclosed that purchasers of pork products have sued major food companies for participating in an alleged nationwide antitrust overpricing scheme. The companies involved include: Clemens Food Group, Hormel Foods, Indiana Packers Corporation, JBS USA, SeaBoard Foods, Smithfield Foods, Triumph Foods, Tyson Foods, and Agri Stats, Inc. Affected brands include, but are not limited to: Ball Park Franks, Bosco's, Craft Meats San Francisco, Hillshire Farm, Hormel, Jennie-O, Jimmy Dean, Lloyd's Barbeque, Nathan's Famous, SaraLee, Smithfield, SPAM, Steak-eze, Tastemakers, and Tyson. Pork Manufacturers Accused of Severely Overcharging Consumers for Nearly a Decade According to the complaint, major meat companies, which control 80% of the $20 billion pork market, engaged in a scheme to fix, raise, maintain, and stabilize the price of pork since at least 2009. In furtherance of their scheme, the companies coordinated their output and limited production, while exchanging detailed, competitively sensitive, and closely guarded non-public information about prices, capacity, sales volume, and demand. With this information, the pork industry's top players dominated the market, effectively forcing out new competitors. According to prices published by the U.S. Department of Agriculture, the hog market year average price was at or below $50 every year between 1998 and 2009, before increasing to $76.30 per pound in 2015—an increase of more than 50 percent. As a result, consumers were forced to pay high prices for bacon, ham, hot dogs, and other pork products. Pork Distributors Have Legal Options If you would like more information about your rights and potential remedies, contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a consumer and shareholder rights law firm that has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] CLEVELAND, OH: Faces Class Action Over Slamming, Cramming --------------------------------------------------------- Danielle Serino, writing for WKYC3, reports that no doubt your energy bill has increased with all these hot days. But have you paid attention to the charges . . . or the companies listed on your bill? You might be paying for services you didn't authorize because of two popular scams. They're called Slamming and Cramming. Slamming is when your energy supplier is switched without your authorization. Cramming is when a company charges you for a service you didn't request. It starts with someone at your door, or a flyer in your mailbox, with an offer to sell you electricity -- for a song. They'll go over the details and some will assure you that you can cancel at any time, says the Office of the Ohio Consumer's Counsel, a utility advocacy group. What they don't say is that canceling may come with penalties. And some companies have variable rates, meaning they can change the cost whenever they want, so you can kiss any savings good bye. Then there are sales people who aren't who they say they are. "They look very official. They've got the orange vest. They've got the clipboard," described Shawn Goodwin, who almost fell victim to a scam. The City of Cleveland provided the following statement regarding the class action lawsuit: "The city of Cleveland is confident all customer charges were applied appropriately. The Class Action Notice is a standard part of the class action process and was coordinated between both parties involved in this case. Since the litigation is still pending, we cannot comment further at this time. "But even if you're not crammed or slammed . . . review your bill and compare plans on sites like the Ohio Consumers Council, which can help keep you from getting shocked. "I've stopped getting surprised by what people do," said Mr. Goodwin. "If people will eat a Tide Pod, I'm sure people will sign up for some bad electricity supply." Now there are government aggregation programs, when your municipality buys its electricity or natural gas for residents in bulk. Usually, you have to opt-out of the program or else you're automatically enrolled. To file a complaint over your Utility Company: Public Utilities Commission of Ohio. https://www.puco.ohio.gov/be-informed/consumer-topics/get-help-with-a-complaint/ For more information on your energy bill: Office of the Ohio Consumers' Counsel. http://www.occ.ohio.gov/[GN] COGNIZANT TECHNOLOGY: "Mishra" Stay Extended Pending Settlement --------------------------------------------------------------- The United States District Court for the Eastern District of California, Sacramento Division, issued an Order Extending Stay of Proceedings Pending Settlement in the case captioned DEBI MISHRA, individually and on behalf of all those similarly situated, Real Party in Interest, v. COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION, COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION, and DOES 1 through 10, inclusive, Defendants Case No. 2:17-cv-01785-TLN-EFB (E.D. Cal.). Pursuant to the parties' stipulation, the Court entered an Order that, among other things, stayed all proceedings until the earlier of July 22, 2018 or a joint notice from the parties of an unsuccessful mediation, and which provided deadlines for Cognizant to file a responsive pleading in the event of an unsuccessful mediation. The parties are in the process of negotiating and preparing a class action settlement agreement in this matter and accordingly wish to extend the stay. A full-text copy of the District Court's July 9, 2018 Order is available at https://tinyurl.com/ydbdt764 from Leagle.com. Debi Mishra, Plaintiff, represented by John T. Stralen , Clayeo C. Arnold A Professional Law Corporation & Joshua H. Watson , Clayeo C. Arnold. Cognizant Technology Solutions U.S. Corporation & Cognizant Technology Solutions Corporation, Defendants, represented by Julie A. Totten -jatotten@orrick.com -- Orrick, Herrington & Sutcliffe LLP & Katie Elizabeth Briscoe -- jatotten@orrick.com -- Orrick, Herrington & Sutcliffe. COLGATE-PALMOLIVE CO: Dean Appeals C.D. Calif. Order to 9th Cir. ---------------------------------------------------------------- Plaintiffs Jacqueline Dean and Melanie Barber filed an appeal from a court ruling in the lawsuit entitled Jacqueline Dean, et al. v. Colgate-Palmolive Company, Case No. 5:15-cv-00107-JGB-RAO, in the U.S. District Court for the Central District of California, Riverside. The appellate case is captioned as Jacqueline Dean, et al. v. Colgate-Palmolive Company, Case No. 18-55982, in the United States Court of Appeals for the Ninth Circuit. As reported in the Class Action Reporter on July 5, 2018, the Plaintiffs also filed an appeal from a court ruling in their lawsuit. That appellate lawsuit is styled Jacqueline Dean, et al. v. Colgate-Palmolive Company, Case No. 18-80057. The Plaintiffs have sought certification of a class defined as: All persons in California, Delaware, the District of Columbia, Kansas, Missouri, New Jersey, Ohio, Utah, Virginia and West Virginia who purchased Optic White on or after October 1, 2013, or who purchased Optic White Platinum on or after February 1, 2014. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 20, 2018; -- Transcript is due on September 18, 2018; -- Appellants Melanie Barber and Jacqueline Dean's opening brief is due on October 29, 2018; -- Appellee Colgate-Palmolive Company's answering brief is due on November 29, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants JACQUELINE DEAN and MELANIE BARBER, on behalf of themselves and all others similarly situated, are represented by: Lawrence Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com - and - Todd S. Garber, Esq. FINKELSTEIN BLANKINSHIP FREI-PEARSON AND GARBER LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298-3281 E-mail: tgarber@fbfglaw.com - and - Rosemary M. Rivas, Esq. FINKELSTEIN THOMPSON LLP 1 California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 398-8700 Facsimile: (415) 398-8704 E-mail: rrivas@finkelsteinthompson.com Defendant-Appellee COLGATE-PALMOLIVE COMPANY is represented by: Robyn Eileen Bladow, Esq. Jeffrey Scott Sinek, Esq. KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 680-8400 Facsimile: (213) 808-8073 E-mail: rbladow@kirkland.com jeff.sinek@kirkland.com COMMERCIAL INTERIORS: $307K Atty's Fees Award Endorsed in "Salinas" ------------------------------------------------------------------- In the case, Mario Salinas, et al., Plaintiffs, v. Commercial Interiors, Inc., et al., Defendants, Civil Case No. 8:12-cv-1973-PWG (D. Md.), Magistrate Judge Gina L. Simms of the U.S. District Court for the District of Maryland, Southern Division, recommended that the Court grants the Motion for Attorneys' Fees and award costs. The protracted litigation began almost six years ago on July 2, 2012, when the Plaintiffs filed a Complaint against Defendant Commercial and J.I. General Contractors, Inc. ("J.I."), alleging violations of the Fair Labor Standards Act, the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law. The Plaintiffs initially intended to bring the action individually, as a collective action under the FLSA, and as a Class Action under Fed. R. Civ. P. 23(b)(3). The class and collective action certifications were ultimately denied, and the Plaintiffs filed a Second Amended Complaint on March 31, 2014 with five remaining individuals. On June 13, 2014, Commercial filed a motion for summary judgment, asserting, in relevant part, that Commercial is not liable as a "joint employer." On July 11, 2014, the Plaintiffs filed a cross-motion for partial summary judgment seeking a determination that Commercial is jointly liable. The Honorable Frederick J. Motz entered an order and memorandum opinion granting Commercial's motion and denying the Plaintiffs' motion. A three-day bench trial with J.I., the remaining Defendant, resulted in judgment in favor of the Plaintiffs. The parties subsequently briefed the first of the Plaintiffs' motion for attorneys' fees and bill of costs, and the Court granted a partial award of fees and costs on May 6, 2015. The Plaintiffs filed a motion for reconsideration as to Commercial's joint employer status with Judge Motz. They filed an appeal in the U.S. Court of Appeals for the Fourth Circuit of the order granting Commercial's motion for summary judgment. The Fourth Circuit reversed and remanded on Jan. 26, 2017, finding for the Plaintiffs, and established a new six-factor test to determine whether an employer is a joint employer under the FLSA. On remand, the Plaintiffs filed a motion for summary judgment against Commercial on the joint employer issue, which was granted by Judge Motz on June 19, 2017. The Plaintiffs promptly moved for an award of attorneys' fees and costs as the prevailing party. Commercial subsequently moved for reconsideration based on a discovery irregularity, which was granted. The Plaintiffs then withdrew their motion for attorneys' fees for their motion for summary judgment against Commercial. The Plaintiffs filed a motion for reconsideration of the order granting Commercial's motion for reconsideration on Aug. 15, 2017, which the parties fully briefed. The case was then reassigned to the Honorable Paul W. Grimm, who granted the Plaintiffs' motion for reconsideration on Nov. 13, 2017 following a status conference. The Plaintiffs filed the instant motion for attorneys' fees and bill of costs. The matter was referred to Magistrate Judge Simms to author a Report and make recommendations. The Magistrate Judge finds that the requested fees are reasonable and that no further downward adjustments are necessary. She has multiplied the number of reasonable hours expended by the reasonable rates for each attorney as instructed by Randolph, and followed the other Randolph requirements. She ultimately recommends a total attorney's fees award of $306,777.53. She also finds and recommends that the Plaintiffs be awarded $9,485.95 in costs. She holds that the Plaintiffs not only relied on the deposition transcripts for their unsuccessful motions, but also for their successful motions against Commercial related to the joint employer issue. She finds that the Plaintiffs' use of the same transcripts as exhibits to a losing motion is irrelevant, as they relied on them for the joint employer issue. She therefore finds the $8,423.95 in deposition transcript costs appropriate. Finally, she says the amount on the bill of costs related to the mandate was timely filed ($1,062). Magistrate Judge Simms respectfully recommended that the Court (1) awards the Plaintiffs $306,777.53 in attorney's fees; and (ii) awards the Plaintiffs $9,485.95 in costs. A full-text copy of the Court's June 8, 2018 Report & Recommendations is available at https://is.gd/xltU2f from Leagle.com. Mario Salinas, William Ascencio, Plaintiffs, on behalf of themselves and others similarly situated, Bernaldino Salinas & Franklin Henriquez, Plaintiffs, represented by Andrea Joie Vaughn, Public Justice Center, Sally Jean Dworak Fisher, Public Justice Center Inc, Barbra A. Kavanaugh, Employment Justice Center, pro hac vice & Ryan E. Griffin -- regriffin@jamhoff.com -- James & Hoffman, P.C., pro hac vice. Henry Garcia, Plaintiff, represented by Andrea Joie Vaughn, Public Justice Center, Sally Jean Dworak Fisher, Public Justice Center Inc & Ryan E. Griffin, James & Hoffman, P.C., pro hac vice. Commercial Interiors, Inc., Defendant, represented by Michael J. Jack, Law Office of Michael J Jack. J.I. General Contractors, Inc., Defendant, pro se. Juan Flores Ramirez, personally, Defendant, pro se. Isaias Flores Ramirez, personally, Defendant, pro se. COOK COUNTY COURT: Fails to Protect Motor Vehicle Data, Nisi Says ----------------------------------------------------------------- MARY NISI, On behalf of herself and the class, the Plaintiff, v. DOROTHY BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois, the Defendant, Case No. 1:18-cv-04861 (N.D. Ill., July 17, 2018), alleges that Defendant improperly disclosing personal information contained in motor vehicle records pursuant under the Driver's Privacy Protection Act. According to the complaint, the Defendant systematically violates the DPPA by making unredacted motor vehicle records available to the public at all Cook County courthouse electronic terminals. At the terminals, anyone can obtain an individual's personal information by searching traffic citations with an individual's name or even just their license plate number.[BN] The Plaintiff is represented by: Roger Zamparo Jr., Esq. Steven J. Uhrich, Esq. ZAMPARO LAW GROUP, P.C. 2300 Barrington Road, Suite 325 Hoffman Estates, IL 60169 Telephone: (224) 875 3202 Facsimile: (312) 276 4950 E-mail: roger@zamparolaw.com steven@zamparolaw.com COUNTRYWIDE BANK: "Markowicz" Suit Alleges FDCPA Violations ----------------------------------------------------------- Jill S. Markowicz, individually and on behalf of all others similarly situated v. Countrywide Bank, N.A., Bank of America, N.A., Real Time Resolutions, Inc., RTR CP Opportunity Trust 1, Yakte Properties, LLC, and Does I-XX, Case No. 8:18-cv-01164 (C.D. Calif., July 2, 2018), is brought against the Defendants for violations of the Fair Debt Collection Practices Act. This case concerns yet another unfair business and unlawful debt collection practice carried out by and for the predatory lender most deeply implicated in the recent mortgage meltdown and recession -- namely BofA/Countrywide, says the complaint. This practice is being carried out in collusion with a debt collection company -- namely RTR and its affiliates. The Plaintiff Jill S. Markowicz is a resident of California, living and working as a beautician in Orange County. Her home there is also her workplace, having a salon on the ground floor and living quarters on the second floor. It is located among many similar mixed use homes at 413 29th Street, Newport Beach, California, 92663 The Defendant Countrywide Bank, N.A. is a national banking association headquartered in Calabasas, Los Angeles County, California. Throughout the material time, it conducted banking operations including issuing, servicing, and selling home mortgages throughout California and nationwide. The Defendant Bank of America, N.A. is a national banking association headquartered in Charlotte, North Carolina. Throughout the material time, it conducted banking operations including issuing, servicing, and selling home mortgages throughout California and nationwide. The Defendant Real Time Resolutions, Inc. is a Texas corporation headquartered in Dallas, Texas. It conducts mortgage servicing and consumer debt collection operations throughout California and nationwide. The Defendant RRA CP Opportunity Trust 1 is a Delaware statutory trust headquartered with RTR in Dallas, Texas. It owns or has owned second mortgages purchased from BofA/Countrywide on homes throughout California and nationwide. The Defendant Yakte Properties, LLC is a Delaware limited liability company headquartered with RTR and RRA in Dallas, Texas. It owns or has owned second mortgages purchased from BofA/Countrywide on homes throughout California and nationwide. [BN] The Plaintiff is represented by: Stephen F. Yunker, Esq. 655 West Broadway, Suite 1400 San Diego, CA 92101 Tel: (619) 233-5560 Fax: (619) 233-5535 E-mail: sfy@yslaw.com CRITTENDEN, AR: Mayo et al. Seek Overtime Compensation under FLSA ----------------------------------------------------------------- ROY MAYO, DUANE ROBERTS and PATRICK ROBILIO, Each Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CRITTENDEN COUNTY, ARKANSAS, the Defendant, Case No. 3:18-cv-00128-DPM (E.D. Ark., July 17, 2018), seeks to declaratory judgment; monetary damages; liquidated damages; prejudgment interest; costs; and a reasonable attorney's fee, as a result of Defendant's policy and practice of failing to pay Plaintiff and other similarly situated individuals proper overtime compensation under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Crittenden County is a county located in the U.S. state of Arkansas. As of the 2010 census, the population was 50,902.[BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221 0088 Facsimile: (888) 787 2040 E-mail: josh@sanfordlawfirm.com CYTRX CORP: Sept. 17 Securities Settlement Fairness Hearing Set --------------------------------------------------------------- Glancy Prongay & Murray LLP on July 9 announced proposed settlement in In re CytRx Corporation Securities Litigation. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA In Re CytRx Corporation Securities Litigation Case No.: 2:16-CV-05519-SJO-SK Honorable S. James Otero NICHOLAS CRIHFIELD, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CYTRX CORPORATION, STEVEN A. KRIEGSMAN, and JOHN Y. CALOZ, Defendants. SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES; AND (IV) PLAN OF ALLOCATION TO: All persons and entities who, during the period between September 12, 2014 to July 11, 2016, inclusive (the "Settlement Class Period"), purchased or otherwise acquired the common stock of CytRx Corporation ("CytRx Common Stock") or exchange-traded call options on CytRx Common Stock ("CytRx Call Options"), or sold exchange-traded put options on CytRx Common Stock ("CytRx Put Options"), and were damaged thereby (the "Settlement Class"): PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY AS YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an order of the United States District Court for the Central District of California, that the above-captioned litigation (the "Action") has been preliminarily certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full Notice of (I) Pendency of Class Action, Certification of Settlement Class, and Proposed Settlement; (II) Settlement Fairness Hearing; (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses; and (IV) Plan of Allocation (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Action has reached a proposed settlement of the Action for $5,750,000 in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on September 17, 2018 at 10:00 a.m., before the Honorable S. James Otero at the United States District Court for the Central District of California, United States Courthouse, 350 W. 1st Street, 6th Floor, Courtroom 6D, Los Angeles, California 90012, to determine whether: (i) the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) the Action should be dismissed with prejudice against Defendants, and the Releases specified and defined in the Stipulation and Agreement of Settlement dated May 4, 2018 (the "Stipulation") (and in the Notice) should be granted; (iii) the proposed Plan of Allocation should be approved as fair and reasonable; (iv) Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved; and (v) Lead Plaintiff's application for reimbursement of reasonable costs and expenses in connection with representing the Settlement Class should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. The Notice and Proof of Claim and Release Form ("Claim Form") can be downloaded from the website maintained by the Claims Administrator, www.CytRxSecuritiesSettlement.com. You may also obtain copies of the Notice and Claim Form by contacting the Claims Administrator at In re CytRx Corporation Securities Litigation, c/o A.B. Data, Ltd., P.O. Box 173011, Milwaukee, WI 53217, 1-800-547-4406. If you are a member of the Settlement 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 16, 2018. If you are a member of the Settlement Class 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. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than August 27, 2018, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. If you are a member of the Settlement Class and do not exclude yourself from the Settlement Class, you have the right to object to the proposed Settlement, the proposed Plan of Allocation, the request by Lead Counsel for an award of attorneys' fees and reimbursement of expenses and/or Lead Plaintiff's request for reimbursement of costs and expenses. Any objections to the proposed Settlement, the proposed Plan of Allocation, Lead Counsel's motion for attorneys' fees and reimbursement of expenses, and/or Lead Plaintiff's request for reimbursement of costs and expenses, must be filed with the Court and delivered to Lead Counsel and Defendants' Counsel such that they are received no later than August 27, 2018, in accordance with the instructions set forth in the Notice. If you are a member of the Settlement Class and do not exclude yourself from the Settlement Class, you will be bound by any judgments or orders entered by the Court in this Action. All capitalized words and terms not defined in this notice shall have the meanings stated in the Stipulation, which can be downloaded from www.CytRxSecuritiesSettlement.com. Please do not contact the Court, the Clerk's office, CytRx Corporation, or its counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: GLANCY PRONGAY & MURRAY LLP Kara Wolke, Esq. 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 (310) 201-9150 info@glancylaw.com Requests for the Notice and Claim Form should be made to: In re CytRx Corporation Securities Litigation c/o A.B. Data, Ltd. P.O. Box 173011 Milwaukee, WI 53217 800-547-4406 www.CytRxSecuritiesSettlement.com Dated: July 9, 2018 By Order of the Court [GN] DETROIT, MI: Faces Class Action Over Civil Forfeitures ------------------------------------------------------ George Hunter, writing for The Detroit News, reports that Stephen Nichols didn't have valid insurance when he was pulled over by Lincoln Park police on July 2, 2015, so his car was seized and towed away. More than three years later, the 1998 Toyota Avalon is still sitting in a Brownstown Township impound lot as Mr. Nichols awaits a hearing to get it back. Mr. Nichols, 42, is part of a class-action federal lawsuit filed last month by him and two other people whose vehicles were seized by police. The suit alleges their 14th Amendment due process rights were violated. "Mr. Nichols still hasn't had a hearing, which is ridiculous," said Shaun Godwin, attorney for the plaintiffs. "The law says prosecutors have to bring a case promptly, but it's not defined under the law what 'promptly' is." Wayne County prosecutors and sheriffs are defendants in the lawsuit. The county's corporation counsel, which is handling the suit, did not respond to requests for comment. Ed Zelenak, attorney for Lincoln Park, which also is named in the lawsuit, said Nichols pleaded guilty to having fraudulent insurance, and that the holdup in his case is likely due to a backlog at the understaffed prosecutor's office. The lawsuit, which seeks unspecified damages, comes as the practice of civil forfeitures is being scrutinized in Michigan and nationwide. In May, the state House approved a bill that would require police in Michigan to secure a criminal conviction before seizing property. The bill is being debated in the Judiciary Committee. The U.S. Supreme Court agreed last month to hear the case of an Indiana man whose $40,000 Land Rover was seized after he pleaded guilty to selling less than $200 worth of drugs. The High Court will decide if the seizure violated the Eighth Amendment's ban on "excessive fines." Critics of civil forfeitures say they violate the presumption of innocence by punishing people before they've been found guilty of a crime. Supporters of the practice insist forfeitures help police fight drug dealers and other criminals. U.S. Attorney General Jeff Sessions last year announced he would revive civil forfeitures at the federal level. He said seizures provide a "key tool that helps law enforcement defund organized crime, take back ill-gotten gains and prevent new crimes from being committed." Sessions issued a directive reinstituting the Department of Justice's Equitable Sharing Program, which allowed state and local law enforcement agencies to seize money and property, and then transfer those assets to federal control. The program allowed local agencies to bypass state regulations that limit how forfeiture funds are used. Sessions' announcement drew criticism from across the political spectrum. Supreme Court Justice Clarence Thomas said he doubted civil forfeitures were constitutional. "This system -- where police can seize property with limited judicial oversight and retain it for their own use -- has led to egregious and well-chronicled abuses," Thomas wrote. "Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail." The Supreme Court has rejected previous challenges to civil forfeitures, including the landmark 1996 case of a Royal Oak woman, Tina Bennis, who argued her car was improperly seized because she didn't know her her husband had used it to pick up a prostitute. "Normally, the Supreme Court has looked at these cases as violations of the Fourth Amendment (which covers probable cause and unreasonable search and seizure), and they've been upheld, but now they'll look at it from a different perspective," said Jarrett Skorup, a policy analyst at the Mackinac Center for Public Policy, a Midland-based free market think tank. "The argument the court will now hear is that forfeitures constitute an unreasonable fine on people's assets," Mr. Skorup said. "It'll be interesting to see how they rule." Previous High Court rulings have found that while people have rights, their property doesn't. In civil forfeiture cases, the defendants are the property, not the owners. Michigan lawmakers in recent years have taken steps toward curbing civil forfeitures, Mr. Skorup said. "I think the state has made some progress," said Mr. Skorup, who in 2015 co-authored a report for the Mackinac Center that identified problems with the state's forfeiture practices and offered recommendations — some of which have been adopted. One of the recommendations was to require more transparency by law enforcement agencies that confiscate property. "When I first started on this five years ago, we tried to require a yearly report, but we couldn't get a hearing in committee," Mr. Skorup said. "Since then, they've mandated an annual report." Mr. Skorup said police in Michigan during most of the 2000s seized an estimated $20 million-$25 million in assets annually. "But the first time they had to put a report out (in 2017, which covered 2016), that went down to $15 million," he said. Last year, police in Michigan seized about $13 million in assets, according to the state police 2018 Asset Forfeiture Report, which was released June 30 to the Mackinac Center and is set to be released to the public soon. Among the findings in the 2018 report, which was provided to The News: Law enforcement forfeited $11.8 million in cash and $1.3 million in property, including eight homes, 711 weapons and 7,999 vehicles. Of the 2017 forfeitures, 736 people were not charged with a crime, with another 220 were charged but not convicted. Another 228 weren't charged because they cooperated with prosecutors. Only 43 percent of those whose property was forfeited were charged and convicted. "The rest were either not charged, found innocent, cooperated or are still pending," Mr. Skorup said. "This is problematic because it means that the state took ownership of their property before proving these citizens were guilty of anything." The majority of Michigan's law enforcement agencies did not initiate civil forfeitures. Of the 673 local police departments, sheriffs offices and prosecutors in Michigan, only 265 agencies seized property. Only five prosecuting attorneys prosecutors out of 83 counties in the state handled seizures. Only 25 percent of the forfeiture cases last year went to court. "That's because the vast majority of people didn't contest the claim of the property," Mr. Skorup said. "In many cases, that may be because they knew they were guilty. But in others, as is common, they may simply have decided it wasn't worth it to hire an attorney to get back a few hundred dollars or an inexpensive vehicle." Nearly all of the proceeds from forfeited assets went back to the local law enforcement agencies that initiated the seizures. They spent 36 percent on equipment, 9 percent on vehicles, 8.5 percent on personnel, 5 percent on training and the rest on other areas, including K-9 units and supplies. Among other recent tweaks to Michigan forfeiture law: In 2015, the standard needed to seize property went from the preponderance of evidence, which requires that more than 50 percent of the evidence points to wrongdoing, to clear and convincing evidence, which has a 75 percent requirement. Prior to last year, Michigan was one of only five states that required people to post a bond if they wanted to try to get their property back. Anyone seeking the return of seized property was required to post 10 percent of its value. That requirement was eliminated by the state Legislature. Robert Stevenson, director of the Michigan Association of Chiefs of Police, said his organization had no problem with lifting the bond requirement and the higher proof of evidence needed to seize property -- but he said he opposes the pending legislation that would require conviction before seizure. "I'd like to see if the recent changes have an effect before throwing the baby out with the bath water," said Mr. Stevenson, a former Livonia police chief. "We supported the other recent changes, but not this proposal. "I don't think it's a good idea to require a conviction before you can seize property," Mr. Stevenson said. "Let's say you raid a dope house and find drugs and a lot of money. In order to get a criminal conviction, you'd need to give that money back to them, even though it's clearly proceeds from drug trafficking. "So if you do get a conviction, where do you think that money will be? By the time the case gets through the court process, that money would be long gone." Mr. Stevenson said forfeiture laws also help the quality of life in poor neighborhoods. "Let's say you have a slumlord where renters are dealing drugs out of the house," he said. "If police raid it, you can have an innocent owner defense: 'I didn't know this was happening.' That's true the first time, but if you repeatedly have violations and don't do anything about it, your house is forfeited. "If we had to have a conviction first, we'd never be able to convict the homeowner, so there's no incentive for him to stop allowing this activity," Mr. Stevenson said. "That impacts the poorest communities. It's not good for people who live in these neighborhoods to allow property owners a pass on what happens on their property." But some critics, including 36-year-old fence installer Ryan Chappell, insist police abuse their power to seize property. Mr. Chappell said Wayne County sheriff deputies took his father's 1996 Jeep Grand Cherokee "for no reason" on July 27, 2016. Chappell and his father, Adam Chappell, 61, are part of the class-action lawsuit against the county. Ryan Chappell said he was driving his father's truck when he briefly ducked into a medical marijuana facility. "I had just got off work and stopped at the store sharing the parking lot with the dispensary," he said. "Then I stopped in the dispensary, went in and walked right back out. I asked them a quick question." He said he was stopped by police as he neared his house on Detroit's west side. "They didn't even search me," he said. "They didn't give me a reason why they were towing my car. I was furious. I asked 'how am I supposed to get to work tomorrow? You got my vehicle.' (The police said) 'figure it out.' I ended up bumming a ride." Ryan Chappell was never charged with a crime. "But they had my truck for so long, I had to buy another vehicle," he said. "Then, I had to take off work to go down there three times, but they kept rescheduling (the hearing with prosecutors), giving me the runaround." Ryan Chappell retained Mr. Godwin, who challenged the forfeiture. "We asked for discovery; let's see your evidence, let's see the police reports, turn over all those things," Godwin said. "And the Wayne County Prosecutor's Office wasn't able to do that. "We were about to have a hearing to compel them to produce that information, and then they agreed to dismiss the case and give back the vehicle without any of the towing and storage fees," Godwin said. But when he got his vehicle back, Ryan Chappell said the transmission was damaged. "I can't even drive it," he said. Mr. Godwin said an officer wrote in his police report that Ryan Chappell had told him he'd bought $15 worth of marijuana from the dispensary. "That's very interesting, because there's nothing listed that he recovered any marijuana," Godwin said. Ryan Chappell added: "That's a lie. I never told the officer I'd bought any marijuana." Mr. Godwin said he hopes Michigan becomes the 15th state to require a conviction before property could be forfeited -- but barring that, he said there should at least be prompt hearings. "Due process requires a hearing," he said. "If they do not give you a hearing prior to taking your property, then they need to give you a prompt hearing after they take it . . . within a week. "These cases need to be heard by a judge immediately, and the judge needs to be able to decide if they should give the vehicle back pending the outcome of the case." Adam Chappell said police who seize property without seeking charges are abusing their power. "These people got badges; they do what they want to do," he said. "Ain't nothing you can do. They should've given him a ticket at least. How can you take someone's vehicle and not even write him a ticket for anything? The police are like gangsters; they just take what they want." Ryan Chappell added: "I want be compensated for all the headaches. I lost my transportation to get to work; I had to get another vehicle. It was a pain to get the new insurance, plates, work on the new vehicle. All for nothing." Mr. Stevenson said there have been individual cases where it appears police may have overstepped their authority -- "although a lot of times, when you dig deeper, you find out there's more information you weren't told initially. "One of the people who testified (during previous Legislature hearings) talked about how the police took his car for no reason," Mr. Stevenson said. "We got in touch with the police department and found out the story behind the story: It turns out the car was seized because it had stolen parts on it." Mr. Stevenson added: "Even in those cases where there may have been something improper, the person gets their day in court. It would be ludicrous for police to just take stuff from people. Police have to present a case, and now they have to show clear and convincing evidence. "You don't want to make law based on a few bad cases," Mr. Stevenson said. "Are there a few cases where an innocent person gets their property taken? Yes -- but you don't base the law on those few cases. Maybe tweak the law a bit." Mr. Skorup, of the Mackinac Center, said conviction should come before forfeiture. "Nobody should lose their property until they've been convicted beyond a reasonable doubt," he said. "Then, after the conviction, the court should decide if their assets were part of that criminal activity. "If someone has a small amount of marijuana on them, that doesn't mean their car should be seized," Mr. Skorup said. "That's ridiculous." [GN] EMERGENT BIOSOLUTION: Court Certifies Class in Securities Suit -------------------------------------------------------------- In the case, CITY OF CAPE CORAL MUNICIPAL FIREFIGHTERS' RETIREMENT PLAN, ET AL., Plaintiffs, v. EMERGENT BIOSOLUTIONS, INC., HQ, ET AL., Defendants, Case No. RWT 16-cv-2625 (D. Md.), Judge Roger W. Titus of the U.S. District Court for the District of Maryland granted the Lead Plaintiff's Amended Motion for Class Certification. The case involves alleged violations of federal securities laws by the Defendants. Emergent is a specialty biopharmaceutical company and sole provider of the only U.S. Food and Drug Administrationlicensed anthrax vaccine, BioThrax. The primary purchaser of BioThrax has been the United States Government via the Center for Disease Control and Prevention ("CDC"). In July 2010, the U.S. Biomedical Advanced Research and Development Authority awarded a six-year contract to Emergent to expand its BioThrax manufacturing capabilities at a new facility, Building 55. In 2011, Emergent obtained a five-year BioThrax procurement contract from the CDC for Emergent to supply up to 44.75 million doses of BioThrax for the Strategic National Stockpile ("SNS"). This contract was set to expire on Sept. 30, 2016. In August 2015, the Defendants began discussions with the CDC about the renewal of the BioThrax contract. The Plaintiffs allege that beginning on Jan. 11, 2016, the Defendants made material misrepresentations and omissions that made investors believe that the Government intended to purchase Emergent's newly increased production capacity. On May 5, 2016, in a press release filed with the U.S. Securities and Exchange Commission, Emergent confirmed that the Government would award it a renewed BioThrax contract. From May 5, 2016 to June 1, 2016, the price of Emergent's Common Stock, which is traded on the New York Stock Exchange ("NYSE"), increased nearly 15%, from $37.85 per share on May 5, 2016 to $43.49 per share on June 1, 2016. On June 22, 2016, Emergent disclosed that the Government sought the continued procurement of 29.4 million doses of BioThrax over a five-year period, which was less than the expiring contract that called for 44.75 million. The same day, the price of Emergent Common Stock declined by approximately $8 per share, falling from its close of $39.32 per share on June 21, 2016 to a close of $31.33 per share on June 22, 2016. On unusually high trading volume of more than 9.5 million shares traded, or 21 times the average daily trading volume over the preceding 10 trading days. On July 19, 2016, Plaintiff William Sponn, individually and on behalf of all others similarly situated, initiated the lawsuit against the Defendants, alleging violations of federal securities laws. On Oct. 26, 2016, the Court granted the Plaintiffs' Motion for Appointment as Lead Plaintiff and Approval of Selection of Lead Counsel, appointing Plaintiffs Cape Coral Fire and City of Sunrise Police Officers' Retirement Plan as the Lead Plaintiffs and Robbins Geller Rudman & Dowd LLP as the Lead Counsel pursuant to the Private Securities Litigation Reform Act of 1995. On Dec. 27, 2016, the Lead Plaintiffs filed an Amended Complaint, asserting claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against all the Defendants and claims under Section 20(a) of the Exchange Act against the Individual Defendants. On Feb. 27, 2017, the Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint. After a hearing, the Court denied the Motion to Dismiss by order on July 7, 2017. Having prevailed on the Motion to Dismiss, the Lead Plaintiffs returned with a Motion for Class Certification and Appointment of Class Representatives and Class Counsel, filed on Nov. 29, 2017. On Dec. 20, 2017, the Lead Plaintiffs filed an Amended Motion for Class Certification and Appointment of Class Representatives and Class Counsel, seeking to appoint Geoffrey L. Flagstad instead of Sponn, in addition to the Lead Plaintiffs, as the Class Representative. In their Amended Motion, the Lead Plaintiffs seek certification of a plaintiff class, pursuant to Federal Rule of Civil Procedure 23, consisting of all persons or entities who, between Jan. 11, 2016 and June 21, 2016, purchased or otherwise acquired Emergent publicly traded common stock listed on the New York Stock Exchange (NYSE), Inc. and who were damaged thereby. The Defendants oppose the class certification and ask the Court to strike the opinions in the Report on Market Efficiency of the Lead Plaintiffs' expert. Judge Titus finds that the proposed class satisfies Rule 23(a) and Rule 23(b)(3). The parties do not dispute that Robins Geller meets all of the requirements under Federal Rule of Civil Procedure 23(g)(1)(A) to serve as the Class Counsel. Robbins Geller has been appointed class counsel in hundreds of securities class actions and has competently met its obligations under Rule 23 in those cases. The Judge has no doubt that Robbins Geller will meet its obligation here to vigorously pursue the litigation. Accordingly, he will appoint Robbins Geller as the Class Counsel. Based on the foregoing, Judge Titus granted the Lead Plaintiff's Amended Motion for Class Certification, and certified the proposed Class based on the shortened Class Period, appointed Flagstad as the Class Representative, and appointed Robbins Geller as the Class Counsel. A separate order will follow. A full-text copy of the Court's June 8, 2018 Memorandum Opinion is available at https://is.gd/aTUkHX from Leagle.com. City of Cape Coral Municipal Firefighters' Retirement Plan & City of Sunrise Police Officers' Retirement Plan, Plaintiffs, represented by Dana Whitehead McKee , Brown Goldstein and Levy LLP, Francis P. Karam -- fkaram@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Jonah H. Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Mark T. Millkey -- mmillkey@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice, Robert D. Gerson -- rgerson@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice & Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP. William Sponn, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Dana Whitehead McKee, Brown Goldstein and Levy LLP & Samuel Howard Rudman, Robbins Geller Rudman and Dowd LLP, pro hac vice. Emergent Biosolutions, Inc., HQ, Fuad El-Hibri, Daniel J. Abdun-Nabi, Robert G Kramer & Adam R. Havey, Defendants, represented by Matthew Solum -- matthew.solum@kirkland.com -- Kirkland and Ellis LLP, pro hac vice & Yosef J. Riemer -- yosef.riemer@kirkland.com -- Kirkland and Ellis. EUROMARKET DESIGNS: Chatman Sues Over Retained Biometrics Data -------------------------------------------------------------- Jennifer Chatman, individually, and on behalf of all others similarly situated, Plaintiff, v. Euromarket Designs, Inc., Defendant, Case No. 2018CH09277 (Ill. Cir., July 24, 2018), seeks an injunction requiring Defendant to destroy her biometrics in its possession, and to cease all unlawful activity related to the capture, collection, storage and use of biometrics. Chatman further seeks statutory damages together with costs and reasonable attorneys' fees for violation of the Illinois Biometric Information Privacy Act. Euromarket operates as "Crate and Barrel," a retail store specializing in housewares, furniture and home accessories. Chatman alleges that the Defendants implemented a timekeeping system that relied on the collection, storage, and usage of employees' fingerprints and biometric information without informed consent in violation of the Illinois Biometric Information Privacy Act. [BN] Plaintiff is represented by: Ryan F. Stephan, Esq. James B. Zouras, Esq. Haley R. Jenkins, Esq. STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Tel: (312) 233 1550 Email: rstephan@stephanzouras.com jzouras@stephanzouras.com hjenkins@stephanzouras.com FACEBOOK INC: Faces Class Action Over Bogus Ad Clicks ----------------------------------------------------- Erik de la Garza, writing for Courthouse News Service, reported that a small business owner in Arkansas claims in a class action that advertisers on Facebook are routinely overcharged for fraudulent or bogus clicks generated through fake accounts. Lead plaintiff William F. Doshier and his company dotStrategy Co. sued the social media giant in Faulkner County Circuit Court on July 10, seeking punitive damages and restitution for its alleged failure to detect and filter invalid clicks. Facebook, the world's largest social media platform, said in May that it had deleted 583 million fake accounts during the first three months of 2018. That announcement tipped Mr. Doshier off to "the widespread extent that fake accounts populate the Facebook platform," according to his 87-page complaint filed by Little Rock attorney David Hodges. Mr. Doshier, who teaches marketing classes at the University of Central Arkansas, says Facebook should have instituted policies that detected those fake accounts -- and potentially millions of others -- sooner. A doubling of Facebook's review staff to 20,000 and artificial intelligence systems capable of filtering fake accounts could have been deployed "a long time ago . . . but, Facebook chose not to," the complaint states. According to the lawsuit, Facebook estimates that fake accounts on their social network make up about 3 to 4 percent of users, or about 66 million accounts. "Facebook's self-serve advertisers are not interested in increasing fake traffic from fake Facebook accounts," the complaint states. "Facebook knew or should have known that it has overbilled and continues to overbill Doshier and class members for fake traffic that is generated from fake accounts on Facebook." Facebook's press team did not immediately respond to an email seeking comment on July 10. The proposed class seeks compensatory and punitive damages for claims of breach of contract, fraud and deceptive trade practices for Facebook's alleged misrepresentation of "the actual number of genuine accounts on their social network." Mr. Doshier wants to be reimbursed for clicks determined to be invalid, along with a court order requiring Facebook to perform an automated and manual review on all ads placed by Doshier and the class members. The complaint estimates that 20 percent of the clicks class members were charged will be determined to be bogus clicks generated through fake accounts. Mr. Doshier says of the 55 ads he has placed since December 2013, Facebook has provided data on only 39, limiting his ability to review his account. He asserts in his complaint that Facebook has a duty to perform manual reviews if the company is alerted to invalid click activity. Facebook, which estimated 2.2 billion monthly active users as of March, has 30 days to respond to the lawsuit. A federal judge in California ruled in 2012 that advertisers making similar claims cannot sue Facebook as a class. The plaintiffs in that case could not clearly show what constituted their contract with Facebook or prove they were injured. FAIRMOUNT SANTROL: "Klein" Suit Transferred to N. D. Ohio --------------------------------------------------------- The case captioned Melvyn Klein, individually and on behalf of all others similarly situated, Plaintiff, vs. Fairmount Santrol Holdings Inc., Jenniffer D. Deckard, Matthew F. Lebaron, William E. Conway, Michael G. Fisch, Charles D. Fowler, Stephen J. Hadden, Michael C. Kearney, William P. Kelly, Michael E. Sand and Lawrence N. Schultz, Defendants, Case No. 18-cv-00646, (D. Del., April 27, 2018), was transferred to the U.S. District Court for the Northern District of Ohio on May 23, 2018, under Case No. 18-cv-01186. Klein seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the proposed merger between Fairmount and Unimin Corporation, a subsidiary of SCR-Sibelco NV, or rescinding it in the event defendants consummate the merger. The Plaintiff seeks rescissory damages, costs of this action, including reasonable allowance of attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Each share of Fairmount's common stock will be converted into the right to receive the number of shares of Unimin common stock that will result in the holders of Fairmount Common Stock, together with the holders of certain Fairmount equity awards, owning 35% of the Unimin Common Stock and an amount in cash equal to the result of $170,000,000, divided by the Fully Diluted Fairmount Share Number, without interest. Fairmount provides high performance sand and sand-based product solutions used by oil and gas exploration and production companies to enhance the productivity of their wells. Fairmount's financial advisor, Wells Fargo Securities, LLC failed to disclose the inputs and assumptions underlying the calculation of the discount rate range of 12.1% to 13.1% used for Unimin, the inputs and assumptions underlying the calculation of the discount rate range of 13.3% to 14.2% used for Fairmount, the inputs and assumptions underlying the selection of the perpetuity growth rate range of 2.5% to 3.5% used to calculate Unimin's terminal value, the inputs and assumptions underlying the selection of the perpetuity growth rate range of 2.5% to 3.5% used to calculate Fairmount's terminal value and the actual terminal values calculated, says the complaint. [BN] Plaintiff is represented by: Daniel Patrick Murray, Esq. Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE Ste. 1000, 901 North Market Street Wilmington, DE 19801 Tel: (302) 778-4000 (302) 778-4002 Fax: (302) 778-4002 Defendants are represented by: Blake Rohrbacher, Esq. Sara M. Metzler, Esq. RICHARDS, LAYTON & FINGER Ste. 600, One Rodney Square 920 N. King Street Wilmington, DE 19801 Tel: (302) 651-7847 - and - Brandon G. Mordue, Esq. Geoffrey J. Ritts, Esq. JONES DAY - CLEVELAND 901 Lakeside Avenue Cleveland, OH 44114 Tel: (216) 586-1048 Email: bmordue@jonesday.com gjritts@jonesday.com - and - Marjorie P. Duffy, Esq. JONES DAY - COLUMBUS Ste. 600, 325 John H. McConnell Blvd. Columbus, OH 43215-5017 Tel: (614) 469-3939 Fax: (614) 461-4198 Email: mpduffy@jonesday.com FIFTH THIRD: Waweru Seeks Damages for FCRA Breach ------------------------------------------------- Viona Waweru, individually and on behalf of all others similarly situated, Plaintiff, v. Fifth Third Bank and Fifth Third Bancorp, Defendant, Case No. 18-cv-02260, (S.D. Ind., July 24, 2018), seeks punitive, actual, consequential, statutory and/or nominal damages, injunctive relief, prejudgment and post-judgment interest, attorneys' fees and expenses and such other and further relief for violation of the Fair Credit Reporting Act. Fifth Third Bank is a bank located across ten different states with over 1,200 full-service locations. Fifth Third Bancorp is the principal subsidiary of Fifth Third Bancorp. Plaintiff is the bank's banking, credit card and investment customer. Defendants mailed an overdraft notification to Waweru via United States mail and printed her Social Security Number together with her address, thus exposing her to identity theft, says the complaint. [BN] The Plaintiff is represented by: Christopher P. Jeter, Esq. Marietto V. Massillamany, Esq. MASSILLAMANY JETER & CARSON LLP 11650 Lantern Road, Suite 204 Fishers, Indiana 46038 Telephone: (317) 576-8580 Facsimile: (317) 203-1012 - and - Joseph N. Williams, Esq. James A. Piatt, Esq. RILEY WILLIAMS & PIATT LLC 301 Massachusetts Avenue, Suite 300 Indianapolis, IN 46204 Telephone: (317) 633-5270 Facsimile: (317) 426-3348 FMFS OF VS LLC: Willis Files Request for Judicial Intervention -------------------------------------------------------------- Plaintiffs in the case captioned Shanice Willis and Daana Queen, on behalf of themselves and all others similarly situated, Plaintiffs, v. FMFS of VS LLC, Defendant, Case No. 703029/2018, (N.Y. Sup., February 22, 2018), filed a Request for Judicial Intervention on May 23, 2018. FMFS of VS LLC operates as Buffalo Wild Wings, a restaurant located at 6 Green Acres Rd. W, Valley Stream, New York 11582, where Plaintiffs worked as servers. Plaintiffs claim full minimum wage rate of pay because they spend more than twenty percent of their shift or more than two hours performing non-tipped work. [BN] Plaintiff is represented by: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, NY 11576 Tel: (516) 625-0105 Ext. 18 FMFS of VS LLC is represented by: LITTLER MENDELSON, P.C. 900 3rd Avenue New York, NY 01002 Tel: (212) 583-9600 FOUNDERS PLAZA: Underpays Activity Directors, Abercrombie Alleges ----------------------------------------------------------------- MICHELLE DENA ABERCROMBIE, individually and on behalf of all others similarly situated, Plaintiff v. FOUNDERS PLAZA NURSING & REHABILITATION PARTNERS; and FOUNDERS PLAZA NURSING & REHABILITATION, LP, Defendants, Case No. DC-18-08627 (Tex. Judicial Dist. Ct., Dallas County, July 2, 2018) is an action against the Defendants for unpaid wages, overtime pay, liquidated damages, attorney's fees and costs. Ms. Abercrombie was employed by the Defendants as activity director from August 2012 to May 2, 2017. Founders Plaza Nursing & Rehabilitation Partners is a Texas corporation that is authorized to do business in Dallas County, Texas and may be served at their business located at 721 S. Highway 78, Wylie, TX 75098. [BN] The Plaintiff is represented by: Vincent J. Bhatti, Esq. Ditty S. Bhatti, Esq. The Bhatti Law Firm, PLLC 14785 Preston Road, Suite 550 Dallas, TX 75254 Telephone: (214) 253-2533 Facsimile: (214) 279-0033 E-mail: Vincent.bhatti@bhattilawfirm.com Ditty.bhatti@bhattilawfirm.com GLOBAL FINANCIAL: Constantinou Files Consumer Fraud Class Suit -------------------------------------------------------------- Polyxeni Constantinou, on behalf of herself and all others similarly situated, Plaintiff, v. Global Financial Credit, LLC (d/b/a Medchex) and Athletico, Ltd., an Illinois corporation, Defendants, Case No. 18-cv-61540 (S.D. Fla., July 8, 2018), seeks actual, compensatory and punitive damages, attorneys' fees and costs and such other relief for violation of the Illinois Consumer Fraud Act. Constantinou was involved in a vehicular accident on or about December 2, 2016 and received medical treatment from Athletico at a cost of $11,943.00, who partnered with Global Financial Credit, operating as MedChex, to manage the medical receivables. Plaintiff alleges that Athletico has no authority or basis in fact or law to assign its liens to MedChex, nor did MedChex have any authority or basis to file, notify or serve Notices of Medical Lien upon the Plaintiff. Plaintiff is represented by: Larry D. Drury, Esq. Thomas Rebholz, Esq. LARRY D. DRURY, LTD. 100 North LaSalle Street, Suite 2200 Chicago, IL 60602 Tel: (312) 346-7950 Fax: (312) 346-5777 Email: ldd@larrydrury.com - and - John H. Alexander, Esq. John H. Alexander & Associates LLC 55 West Monroe, Suite 2455 Chicago, IL 60603 Tel: (312) 263-7731 GOLDEN STATE FC: Hernandez Files Suit to Recover Final Pay ---------------------------------------------------------- Alejandro Hernandez, individually, on behalf of all others similarly situated, and as representative of the State of California on behalf of all aggrieved employees, Plaintiff, v. Golden State FC LLC, a Delaware limited liability company, and Does 1 through 50, inclusive. Defendants, Case No. 37-2018-00025550, (Cal. Super., May 23, 2018), seeks redress for meal and rest break violations, failure to compensate for all hours worked, failure to provide proper wage statements and failure to pay earned wages upon discharge including waiting time penalties under the Unfair Business Practices statutes of the California Business and Professions Code, the California Labor Code and Welfare Commission Orders. Golden State is an Amazon fulfillment center and/or delivery station located at 2777 Loker Ave., Carlsbad, California 92010 where Hernandez was employed as a Tier 1 associate from October 2016 to March 14, 2018. [BN] Plaintiff is represented by: Daniel V. Santiago, Esq. LAW OFFICES OF DANIEL V. SANTIAGO, P.C. Torrey Reserve North Court 11622 El Camino Real, 1st Floor Del Mar, CA 92130 Phone: (760) 652-9801 Facsimile: (760) 652-9802 E-mail: dvs@dvslawoffices.com GOOD GUYS NYC: Chagray Files Bid for Judicial Intervention ---------------------------------------------------------- Plaintiffs in the case captioned Jorge Carrasco Chagray and Manuel Carrasco Chagray, Plaintiffs, v. Good Guys NYC Construction Corp. and John Mihalios Contracting Corp., George Mihalios and John Mihalios, as individuals, Defendants, Case No. 706823/2018, (N.Y. Sup., May 2, 2018), filed a request for judicial intervention on July 24, 2018. The lawsuit seeks to recover damages for egregious violations of New York State labor laws and the Fair Labor Standards Act, compensatory and liquidated damages, interest, attorneys' fees, costs and all other legal and equitable remedies. Plaintiffs worked as a laborer, construction worker and painter for Defendant's construction firms from in or around 2006 until in or around October 2017. Chagray worked approximately fifty-four hours or more per week for Defendants without being paid time and a half for hours worked over forty, says 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 Defendants are represented by: MICHAEL P. GIAMPILIS, P.C. 94 Willis Avenue Mineola, NY 11501 Tel: (516) 739-5838 GORDON FLESCH: Charles Cook Files Suit for Racial Discrimination ---------------------------------------------------------------- CHARLES P. COOK, on behalf of himself and all others similarly situated and ROBERT J. ROSEN, on behalf of himself and all others similarly situated v. GORDON FLESCH CO., INC., Case No. 2:18-cv-00711-ALM-CMV (S.D. Ohio, July 20, 2018), alleges age discrimination under the Age Discrimination in Employment Act; race and religious discrimination under Title VII of the Civil Rights Act; retaliation for reporting sex harassment under Title VII; and disability discrimination under the Americans with Disabilities Act. Gordon Flesch Co., Inc., is a corporation organized under the laws of Wisconsin with its principal place of business in Ohio in Columbus. Gordon Flesch distributes office equipment, supplies, and software in the United States. The Company offers copier machines; multifunction devices that combine the capabilities of various input and output devices, such as printer, scanner, copier, and fax; production systems for commercial printers, reprographics departments, direct marketing firms, and other fast-paced environments; printers; scanners; fax machines; and document management and imaging solutions.[BN] The Plaintiffs are represented by: David M. Benson, Esq. DAVID M. BENSON LLC 970 Hanna Building 1422 Euclid Avenue Cleveland, OH 44115 Telephone: (216) 241-2510 Facsimile: (216) 241-2510 E-mail: david@davidbensonlaw.com GROSSMAN & KARASZEWSKI: Jackson Files Suit Over FDCPA Violation --------------------------------------------------------------- ERIC JACKSON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. GROSSMAN & KARASZEWSKI, PLLC, LVNV FUNDING LLC, SHERMAN FINANCIAL GROUP, LLC, RESURGENT CAPITAL SERVICES LP, WILLIAM C. GROSSMAN, AND DARLEEN V. KARASZEWSKI, Case No. 2:18-cv-04116 (E.D.N.Y., July 19, 2018), alleges violations of the Fair Debt Collection Practices Act. On July 19, 2017, G&K, on behalf of LVNV, filed a lawsuit against Mr. Jackson in the District Court of the County of Suffolk under Index No. CV-004646-17/CE to recover a past due debt owed to the "debt collector" LVNV. G&K is formerly known as or is the successor-in-interest to William C. Grossman Law, PLLC. G&K is a New York Professional Services Limited Liability Company with a principal place of business located in East Amherst, New York. LVNV is a Delaware Limited Liability Company and a New York Foreign Limited Liability Company. LVNV's primary business consists of the purchases of defaulted debts due from consumers from entities which currently own the defaulted debts and then, via agents, attorneys, and/or third-party debt collectors, attempting to collect these defaulted debts from consumers. Resurgent is a Delaware Limited Partnership and a New York Foreign Limited Partnership. Resurgent possesses a license to operate as a "Debt Collection Agency." Sherman is a Delaware Limited Liability Company and a New York Foreign Limited Liability Company. Sherman wholly owns numerous subsidiaries, such as LVNV and Resurgent, which are a "debt collector" as defined by the FDCPA. The Individual Defendants are employees, officers or partners of the Corporate Defendants.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. MITCHELL PASHKIN ATTORNEY AT LAW 775 Park Avenue, Suite 255 Huntington, NY 11743 Telephone: (631) 335-1107 E-mail: mpash@verizon.net HYUNDAI MOTOR: Damico Sues Over Vehicles' Powertrain Defect ----------------------------------------------------------- ANDRE DAMICO, Individually and On Behalf of All Others Similarly Situated v. HYUNDAI MOTOR AMERICA, a California corporation, Case No. 2:18-cv-06282 (C.D. Cal., July 20, 2018), is brought on behalf of those who purchased or leased 2017 Hyundai Santa Fe vehicles with Powertrain Defect. Beginning in 2016, if not before, the Defendant knew that the Class Vehicles contain one or more defects that cause, among other problems, significantly delayed acceleration, loss of power, or rough shifting ("Powertrain Defect"), Mr. Damico alleges. He contends that the Powertrain Defect has been documented to occur without warning during vehicle operation and poses an extreme and unreasonable safety hazard to drivers, passengers and pedestrians. Hyundai Motor America is a California corporation with its principal place of business located in Fountain Valley, California, and doing business in California and throughout the United States. The Defendant is responsible for the design, manufacture, distribution, marketing, sale and lease of the Class Vehicles.[BN] The Plaintiff is represented by: Lionel Z. Glancy, Esq. Marc L. Godino, Esq. Danielle L. Manning, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mgodino@glancylaw.com dmanning@glancylaw.com - and - Mark S. Greenstone, Esq. GREENSTONE LAW APC 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9156 Facsimile: (310) 201-9160 E-mail: mgreenstone@greenstonelaw.com IDEMIA IDENTITY: Rueda Files Suit to Recover Unpaid Wages --------------------------------------------------------- Connie Rueda, Jessica Cotton, and Shelia Spencer, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiffs, v. Idemia Identity & Security USA, LLC, MorphoTrust USA, LLC, and Does 1-50, Defendant, Case No. RG18906191, (Cal. Super., May 23, 2018), seeks redress for meal and rest break violations, failure to compensate for all hours worked, failure to provide proper wage statements and failure to pay earned wages upon discharge including waiting time penalties under Unfair Business Practices statutes of the California Business and Professions Code, the California Labor Code and Welfare Commission Orders. Plaintiffs were employed by the Defendants as enrollment agents throughout California, enrolling individuals into the federal Transportation Security Administration's Universal Enrollment Services programs including TSA Pre-Check and Transportation Worker Identification Credential and providing customers with other identity-related products and services offered by the Defendants. [BN] Plaintiff is represented by: Rachel M. Terp, Esq. Bryan J. Schwartz, Esq. 1330 Broadway, Suite 1630 Oakland, CA 94612 Telephone: (510) 444-9300 Facsimile: (510) 444-9301 Email: bryan@bryanschwartzlaw.com rachel@bryanschwartzlaw.com IMPERVA INC: Poinsignon Seeks to Certify Settlement Class --------------------------------------------------------- In the lawsuit captioned JULIEN POINSIGNON, on behalf of himself, all others similarly situated, the Plaintiff, v. IMPERVA, INC., a Delaware corporation; and DOES 1 through 100, inclusive, the Defendants, Case No. 3:17-cv-05653-EMC (N.D. Cal.), the Plaintiff will move the Court for an order on August 16, 2018: 1. granting preliminary approval of the terms of a Settlement as fair, reasonable and adequate under Rule 23(e) of the Federal Rules of Civil Procedure, including the amount of the Settlement; the amount of distributions to class members; the procedure for giving notice to class members; the procedure for opting out of the settlement; and the amounts allocated to the enhancement payments and attorney's fees and costs; 2. preliminarily certifying for settlement purposes a Settlement Class consisting of: "all applicants for employment, employees or other agents of Defendant in the United States who were subject to any background, credit, consumer, or investigatory check or report during the Class Period (the period from August 25, 2012 to November 3, 2017)" 3. appointing Plaintiff as representative for the Settlement Class; 4. appointing Setareh Law Group as counsel for the Settlement Class; 5. approving Simpluris Inc. as settlement administrator; 6. directing that notice be issued to members of the Settlement Class as provided in the Agreement; and 7. scheduling a final approval and fairness hearing on a date approximately 175 days after preliminary approval (February 7, 2019 is proposed) to consider whether the Agreement should be finally approved as fair, reasonable and adequate under Rule 23(e) of the Federal Rules of Civil Procedure, and to rule on the motion for attorney's fees, costs and enhancement award submitted by Plaintiff. A copy of the Notice of Motion is available from PacerMonitor.com at https://is.gd/nfu7pk at no charge. Attorneys for Plaintiff: Shaun Setareh, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888 7771 Facsimile: (310) 888 0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com JAL CHEMICAL: Technicians Seek Unpaid Overtime Wages ---------------------------------------------------- Josh Williams, Quayterez Brawley, Zachary Coleman, Jasper Fryer, Kevin Gollman, Avery Lenton, Tavarus Norman, Dorian Ray, Cristhian Rosario, Anthony Spratt, Marjester Thorton, Ashton Threatt, Derrick Ward, Lonzo Williamson and D'Anthony Copeland, each individually and on behalf of all others similarly situated, Plaintiffs, v. JAL Chemical Co., Inc., Case No. 18-cv-02429 (N.D. Ga., May 23, 2018), seeks declaratory judgment, monetary and liquidated damages, prejudgment interest, fees and costs, as a result of Defendant's failure to pay lawful minimum and overtime compensation for hours worked in excess of forty hours per week in violation of the Fair Debt Collection Practices Act. Defendant's business serves car dealerships in several states, where Plaintiffs are current and former automotive detailer technicians. [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 - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY, McKENNA, & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 Email: tjmckenna@gme-law.com gegleston@gme-law.com KNORR-BREMSE AG: Craver Files Suit Over Sherman Act Violation ------------------------------------------------------------- DANIEL CRAVER, individually and on be-half of all others similarly situated v. KNORR-BREMSE AG; KNORR BRAKE COMPANY; NEW YORK AIR BRAKE CORPORATION; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION; and FAIVELEY TRANSPORT NORTH AMERICA INC., Case No. 2:18-cv-00957-CB-CRE (W.D. Pa., July 20, 2018), challenges the Defendants' alleged conspiracy to restrain competition in the labor market in which they compete for employees (the "No Poach Conspiracy"), in violation of the Sherman Act. Knorr-Bremse AG is a privately-owned German company with its headquarters in Munich, Germany. Knorr is a global leader in the development, manufacture, and sale of equipment for rail and commercial vehicle systems. Knorr Brake Company is a wholly-owned subsidiary of Knorr incorporated in Delaware with its headquarters in Westminster, Maryland. Knorr Brake manufactures train control, HVAC, braking, and door systems used on passenger rail vehicles. New York Air Brake Corporation is a wholly-owned subsidiary of Knorr incorporated in Delaware with its headquarters in Watertown, New York. NYAB manufactures railway air brakes and other rail equipment used on freight trains. Westinghouse Air Brake Technologies Corporation is a Delaware corporation with its headquarters in Wilmerding, Pennsylvania. Wabtec is a publicly-held company, listed on the New York Stock Exchange. With over 100 subsidiaries globally, Wabtec is the world's largest provider of rail equipment and services with global sales of $3.9 billion in 2017. Faiveley Transport North America, formerly a subsidiary of Faiveley Transport S.A., is now a wholly owned subsidiary of Wabtec, and is a New York corporation headquartered in Greenville, South Carolina. Prior to the acquisition, Faiveley Transport S.A. was the world's third-largest rail equipment supplier behind Wabtec and Knorr.[BN] The Plaintiff is represented by: Joel R. Hurt, Esq. Ruairi McDonnell, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Fourth Avenue Law & Finance Building, Suite 1300 Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 E-mail: jhurt@fdpklaw.com rmcdonnell@fdpklaw.com - and - Robert S. Kitchenoff, Esq. WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 Philadelphia, PA 19110-1061 Telephone: (215) 545-7200 Facsimile: (215) 545-6535 E-mail: kitchenoff@wka-law.com KNORR-BREMSE AG: Shepherd Files Antritrust Suit in Maryland ----------------------------------------------------------- Shawn Shepherd, on behalf of himself and all others similarly situated, Plaintiff, v. Knorr-Bremse AG, Knorr Brake Company LLC, New York Air Brake LLC, Westinghouse Air Brake Technologies Corporation, Faiveley Transport, S.A., Faiveley Transport North America Inc. and Does 1-20, Defendants, Case No. 18-cv-02253 (D. Md., July 24, 2018), seeks to recover damages and obtain injunctive relief for injuries caused under Section 1 of the Sherman Antitrust 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. Shepherd was employed by Wabtec as a Lead PTC Installer for Wabtec Global Services, from approximately February 2013 to February 2014. [BN] Plaintiff is represented by: Benjamin H. Carney, Esq. GORDON, WOLF & CARNEY, CHTD 100 W. Pennsylvania Avenue, Suite 100 Towson, MD 21204 Telephone: (410) 825-2300 Facsimile: (410) 825-0066 Email: bcarney@gwcfirm.com - and - Richard M. Heimann, Esq. Kelly M. Dermody, Esq. Brendan P. Glackin, Esq. Dean M. Harvey, Esq. Anne B. Shaver, Esq. Lin Y. Chan, Esq. Michael K. Sheen, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: rheimann@lchb.com kdermody@lchb.com bglackin@lchb.com dharvey@lchb.com ashaver@lchb.com lchan@lchb.com msheen@lchb.com - and - Roberta D. Liebenberg, Esq. Gerard A. Dever, Esq. FINE, KAPLAN AND BLACK, R.P.C. One South Broad Street, Suite 2300 Philadelphia, PA 19107 Telephone: (215) 567-6565 Facsimile: (215) 568-5872 Email: rliebenberg@finekaplan.com gdever@finekaplan.com - and - Thomas G. Foley, Jr., Esq. Robert A. Curtis, Esq. FOLEY BEZEK BEHLE & CURTIS, LLP 15 W. Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 962-9495 Facsimile: (805) 962-0722 Email: tfoley@foleybezek.com rcurtis@foleybezek.com - and - Richard E. Donahoo, Esq. Sarah L. Kokonas, Esq. Judith L. Camilleri, Esq. DONAHOO & ASSOCIATES, PC 440 W. First Street, Suite 101 Tustin, CA 92780 Telephone: (714) 953-1010 Facsimile: (714) 953-1777 Email: rdonahoo@donahoo.com skokonas@donahoo.com jcamilleri@donahoo.com KNS BUILDING: "Castilla" Suit Seeks Damages under FLSA ------------------------------------------------------ Marcos Castilla, on behalf of himself and all others similarly situated v. KNS Building Restoration, Inc., and Dennis Doceti, Case No. 1:18-cv-03838 (E.D. N.Y., July 2, 2018), seeks damages and equitable relief under the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was employed by the Defendants as a construction worker from January 2013 until September 2016. The Defendant KNS Building is a roofing and construction company located in Maspeth, New York. The Defendant Dennis Doceti was a manager of Defendant KNS Building. [BN] The Plaintiff is represented by: Jeffrey R. Maguire, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, PLLC 655 Third Avenue, Suite 1821 New York, NY 10017 Tel: (212) 679-5000 Fax: (212) 679-5005 KOHL'S DEPARTMENT: Collins et al. Seek to Certify Managers Class ---------------------------------------------------------------- In the lawsuit styled STACY COLLINS, TIANGE LUSENI and LISA PETERSON, individually and on behalf of other similarly situated individuals, the Plaintiffs, v. KOHL'S DEPARTMENT STORES, INC. and KOHL'S CORPORATION, the Defendant, Case No. 2:18-cv-00962-DEJ (E.D. Wisc.), the Plaintiff asks the Court for an order granting conditional certification of an "opt-in" collective action, and authorizing the issuance of notice to: "all Assistant Store Managers employed by Defendant Kohl's Department Stores, Inc. and Defendant Kohl's Corporation at any time from May 21, 2015 forward, and an Order that Defendants produce the names, last known addresses, telephone numbers, and e-mail addresses." The Plaintiff further moves, pursuant to Local Rule 7(a)(3), for expedited consideration of this motion, as the statutes of limitations for the members of the putative collective action are running. A copy of the Motion is available from PacerMonitor.com at https://is.gd/DXEltb at no charge. Attorneys for Plaintiff: Larry A. Johnson, Esq. Summer H. Murshid, Esq. HAWKS QUINDEL S.C. 222 East Erie Street, Suite 210 PO Box 442 Milwaukee, WI 53201-0442 Telephone: (414) 271 8650 Facsimile: (414) 271 8442 E-mail: ljohnson@hq-law.com smurshid@hq-law.com - and - Richard E. Hayber, Esq. The Hayber Law Firm, LLC 221 Main Street, Suite 502 Hartford, CT 06106 Telephone: (860) 522 8888 Facsimile: (860) 218 9555 E-mail: rhayber@hayberlawfirm.com - and - Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994 5800 Facsimile: (617) 994 5801 E-mail: sliss@llrlaw.com - and - Gary Edward Phelan, Esq. MITCHELL & SHEAHAN PC 80 Ferry Blvd - Ste 102 Statford , CT 06615 Telephone: (203) 873 0240 Facsimile: (203) 873 0235 E-mail: gphelan@mitchellandsheahan.com MALACHITE VENTURE: Majano Seeks Overtime Pay under FLSA ------------------------------------------------------- MIGUEL MAJANO, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. MALACHITE VENTURE CORP.; THE MALACHITE GROUP OF TEXAS, INC.; CHELSEA COMMONS, LLC; MESA COMMONS, LLC; HOUSTON TRIANGLE III, LLC; WESTHEIMER COMMONS, LLC; POPOLO COMMONS, LLC; HOUSTON OFFICE/WAREHOUSE CORP.; HIGHWAY SIX TWINS, INC.; SOUTHVIEW REALTY CORP.; CROSSROADS PARTNERS INC.; MAXI REALTY CORP.; 9030 NORTH FREEWAY CORP.; GREENRIDGE COMMONS, INC.; TOWNSHIP ONE REALTY CORP.; T.C. JESTER REALTY CORP.; WILLOWRIDGE COMMONS, LLC; HOUSTON TRIANGLE II, LLC; MADISONVILLE COMMONS, LLC; CHAMPION COMMONS LLC; POPOLO VILLAGE, LLC; GATEWAY COMMONS LLC; HIGHWAY 6 COMMONS, LLC; and MANOUCHEHR MALEKAN, the Defendants, Case No. 4:18-cv-02469 (S.D. Tex., July 17, 2018), alleges that Malachite Group violated the Fair Labor Standards Act by employing Majano and other similarly situated nonexempt employees for a workweek longer than 40 hours but refusing to compensate them for their employment in excess of 40 hours at a rate not less than one and one-half times the regular rate at which they are or were employed. Malachite Venture Corp. is in the tax return preparation services business.[BN] The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. MOORE & ASSOCIATES Lyric Center 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222 6775 Facsimile: (713) 222 6739 MDL 1203: Denial of Larrieu's Matrix A-1 Benefits Affirmed ---------------------------------------------------------- In the case, IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT RELATES TO: SHEILA BROWN, et al., v. AMERICAN HOME PRODUCTS CORPORATION, Civil Action No. 99-20593, MDL No. 1203, No. 2:16 MD 1203 (E.D. Pa.), Judge Harvey Bartle, III of the U.S. District Court for the Eastern District of Pennsylvania affirmed the AHP Settlement Trust's denial of Miguel A. Larrieu's claim for Matrix A-1 Benefits. Mr. Larrieu, a class member under the Diet Drug Nationwide Class Action Settlement Agreement ("Settlement Agreement") with Wyeth, seeks benefits from the Trust. Based on the record developed in the show cause process, the Court must determine whether claimant has demonstrated a reasonable medical basis to support his claim for Matrix Compensation Benefits. To seek Matrix Benefits, a claimant must first submit a completed Green Form to the Trust which consists of three parts. The claimant or the claimant's representative completes Part I of the Green Form. Part II is completed by the claimant's attesting physician, who must answer a series of questions concerning the claimant's medical condition that correlate to the Matrix criteria set forth in the Settlement Agreement. Finally, the claimant's attorney must complete Part III if the claimant is represented. In June 2015, Mr. Larrieu submitted a completed Green Form to the Trust signed by his attesting physician, Marta C. Sayers, M.D., F.A.C.C. Based on an echocardiogram dated March 5, 2015,3 Dr. Sayers attested in Part II of Mr. Larrieu's Green Form that claimant suffered from severe mitral regurgitation and had surgery to repair or replace the aortic and/or mitral valve(s) following the use of Pondimin® and/or Redux™. Based on such findings, claimant would be entitled to Matrix A-1, Level III benefits in the amount of $823,285. Dr. Sayers also attested that Mr. Larrieu did not suffer from mitral annular calcification. Significantly, the Settlement Agreement requires the reduced payment of Matrix Benefits for a claim based on damage to the mitral valve when mitral annular calcification is present. The Trust does not contest claimant's entitlement to Level III benefits. Thus the only issue before us is whether claimant is entitled to payment on Matrix A-1 or Matrix B-1. In October 2015, the Trust forwarded the claim to M. Michele Penkala, M.D., one of its auditing cardiologists, for review. In audit, Dr. Penkala concluded that there was no reasonable medical basis for finding that claimant did not have mitral annular calcification. Based on Dr. Penkala's findings, the Trust issued a post-audit determination that Mr. Larrieu was entitled only to Matrix B-1, Level III benefits. Although not required to do so, the Trust forwarded the claim to the auditing cardiologist for a second review. Thereafter the Trust issued a final post-audit determination again in which it concluded that Mr. Larrieu was entitled only to Matrix B-1, Level III benefits. He disputed this final determination and requested that the claim proceed to the show cause process established in the Settlement Agreement. The Trust then applied to the court for issuance of an Order to show cause why Mr. Larrieu's claim should be paid. On Sept. 20, 2016, an Order was issued to show cause and the matter was referred to the Special Master for further proceedings. Once the matter was referred to the Special Master, the Trust submitted its statement of the case and supporting documentation. The Special Master assigned a Technical Advisor, Gary J. Vigilante, M.D., F.A.C.C., to review the documents submitted by the Trust and claimant and to prepare a report for the court. The Show Cause Record and Technical Advisor Report are now before the Court for final determination. The issue presented for resolution of this claim is whether Mr. Larrieu has met his burden of proving that there is a reasonable medical basis for finding that he did not have mitral annular calcification. Judge Bartle rejects Mr. Larrieu's argument that his claim should not be reduced because the level of his mitral annular calcification, if any, is "relatively minute or insignificant." The Judge finds that the Settlement Agreement specifically provides that a claimant will receive reduced Matrix Benefits for a mitral valve claim if he or she is diagnosed by echocardiogram with mitral annular calcification. Unlike some of the other factors that reduce a claim to Matrix B-1, any presence of mitral annular calcification, regardless of the amount, places the claim on Matrix B-1. Finally, Mr. Larrieu's suggestion that any mitral annular calcification is the result of his age is misplaced. The Judge finds that causation is not at issue in resolving Mr. Larrieu's claim for Matrix Benefits. Rather, claimant is required to show that he meets the objective criteria set forth in the Settlement Agreement. For these reasons, Judge Bartle concludes that Mr. Larrieu has not met his burden of proving that there is a reasonable medical basis for finding that he did not have mitral annular calcification. Therefore, he affirmed the Trust's denial of Mr. Larrieu's claim for Matrix A-1 Benefits. A full-text copy of the Court's June 8, 2018 Memorandum is available at https://is.gd/tZXD1t from Leagle.com. WILLIAMS DAILEY, Special Master, represented by MICHAEL L. WILLIAMS -- lawgive@lclark.edu -- WILLIAMS O'LEARY LLC. VIVIAN NAUGLE & QUINTIN LAYER, Plaintiffs, epresented by ARNOLD LEVIN -- alevin@lfsblaw.com -- LEVIN SEDRAN & BERMAN, CHRISTOPHER MICHAEL PLACITELLA -- cplacitella@cprlaw.com -- COHEN PLACITELLA & ROTH PC, DIANNE M. NAST -- dnast@nastlaw.com -- NASTLAW LLC, GENE LOCKS -- glocks@lockslaw.com -- LOCKS LAW FIRM PLLC, JOHN J. CUMMINGS, III, CUMMINGS CUMMINGS & DUDENHEFER, MARK W. TANNER -- mtanner@feldmanshepherd.com -- FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK, MICHAEL D. FISHBEIN, LEVIN, FISHBEIN, SEDRAN & BERMAN, RICHARD S. LEWIS -- rlewis@hausfeld.com -- HAUSFELD LLP, RICHARD S. WAYNE -- rswayne@strausstroy.com -- STRAUSS & TROY, ROBERT ERIC KENNEDY, WEISMAN, KENNEDY & BERRIS, SOL H. WEISS -- sweiss@anapolweiss.com -- ANAPOL WEISS & STANLEY M. CHESLEY, WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A.. JOAN S. LAYER, Plaintiff, represented by SOL H. WEISS -- sweiss@anapolweiss.com --ANAPOL WEISS. BRENDA CHAMBERS, DONNA JARRELL & ISABEL CONNOR, Appellants, represented by ARNOLD LEVIN, LEVIN SEDRAN & BERMAN. CHARLENE ALLSPAUGH, Appellant, pro se. DORIS ATANMO, Appellant, pro se. EVELYN AMEND, Appellant, pro se. JOAN BAKANOWSKY, Appellant, pro se. STEVEN BERKOWITZ, Appellant, pro se. KATHY BURROW, Appellant, pro se. LINDA BUSBY, Appellant, pro se. JO BUTTERFIELD, Appellant, pro se. LINDA CASTON, Appellant, pro se. AMERICAN HOME PRODUCTS CORPORATION, Defendant, represented by Andrew A. Chirls, Esq. -- achirls@finemanlawfirm.com -- FINEMAN KREKSTEIN & HARRIS PC; Kevin A. Cline, Esq. -- kevin.cline@aporter.com -- ARNOLD & PORTER LLP; Leslie Anne Benitez, Esq. -- lbenitez@gordonrees.com -- GORDON & REES LLP; Edward F. Hanover, III, Esq. -- ehanover@reedsmith.com -- Louis W. Schack, Esq. -- lschack@reedsmith.com -- and Milind M. Shah, Esq. -- mshah@reedsmith.com -- REED SMITH LLP. MDL 2495: Makowski Appeals Order to 11th Cir. --------------------------------------------- Plaintiff Bryan Makowski filed an appeal from a court ruling in the multidistrict litigation titled IN RE ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION, MDL No. 1:13-md-02495-TWT, in the U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter, the litigation is a products liability action involving allegedly defective roofing shingles. The appellate case is captioned as Bryan Makowski v. Atlas Roofing Corporation, Case No. 18-12904, in the United States Court of Appeals for the Eleventh Circuit.[BN] Plaintiff-Appellant BRYAN MAKOWSKI, on behalf of himself and all others similarly situated, is represented by: Daniel K. Bryson, Esq. WHITFIELD BRYSON & MASON, LLP 900 W Morgan St. Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: Dan@wbmllp.com MDL 2495: Seltzer Appeals Ruling to 11th Cir. --------------------------------------------- Plaintiffs Brian David Seltzer, Bryan Makowski and Stratford Club Condominium Association filed an appeal from a court ruling in the multidistrict litigation titled IN RE ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION, MDL No. 1:13-md-02495-TWT, in the U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter, the litigation is a products liability action involving allegedly defective roofing shingles. The appellate case is captioned as Brian Seltzer v. Atlas Roofing Corporation, Case No. 18-12899, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case states that the Appellee's Certificate of Interested Persons is due on or before August 7, 2018, as to Appellee Atlas Roofing Corporation.[BN] Plaintiffs-Appellants BRIAN DAVID SELTZER, on behalf of himself and all others similarly situated, and BRYAN MAKOWSKI are represented by: Daniel K. Bryson, Esq. WHITFIELD BRYSON & MASON, LLP 900 W Morgan St. Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: Dan@wbmllp.com - and - Kenneth S. Canfield, Esq. DOFFERMYRE SHIELDS CANFIELD & KNOWLES, LLC 1355 Peachtree Street, Suite 1900 Atlanta, GA 30309 Telephone: (404) 881-8900 E-mail: kcanfield@dsckd.com - and - Christopher L. Coffin, Esq. PENDLEY BAUDIN & COFFIN, LLP 24110 Eden Street Plaquemine, LA 70764 Telephone: (225) 687-6396 E-mail: ccoffin@pbclawfirm.com Plaintiff-Appellant BRIAN DAVID SELTZER, on behalf of himself and all others similarly situated, is represented by: John R. Climaco, Esq. CLIMACO WILCOX PECA TARANTINO & GAROFOLIC CO., LPA 55 Public Square, Suite 1950 Cleveland, OH 44113 Telephone: (216) 621-8484 E-mail: jrclim@climacolaw.com - and - Patrick G. Warner, Esq. CLIMACO, WILCOX, PECA, TARANTINO & GAROFOLI, CO., LPA 383 N Front St. L1 Columbus, OH 43215 Telephone: (614) 437-2522 E-mail: pgwarn@climacolaw.com Plaintiff-Appellant BRYAN MAKOWSKI is represented by: John C. Whitfield, Esq. WHITFIELD BRYSON & MASON, LLP 19 N Main Street Madisonville, KY 42431 Telephone: (270) 821-0656 E-mail: john@wbmllp.com Plaintiff - Appellant STRATFORD CLUB CONDOMINIUM ASSOCIATION, on behalf of itself and all others similarly situated Daniel K. Bryson, Esq. WHITFIELD BRYSON & MASON, LLP 900 W Morgan St. Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: Dan@wbmllp.com - and - Jordan L. Chaikin, Esq. CHAIKIN LAW FIRM, PLLC 12800 University Dr., Suite 600 Ft. Meyers, FL 33907 Telephone: (239) 390-1000 E-mail: jchaikin@yourlawyer.com - and - James Plummer Lukes, Esq. WISE & DONAHUE, PLC 11325 Random Hills Rd., Suite 302 Fairfax, VA 22030 Telephone: (703) 934-6377 E-mail: jlukes@wisedonahue.com Defendant-Appellee ATLAS ROOFING CORPORATION is represented by: Kip T. Bollin, Esq. THOMPSON HINE, LLP 127 Public Square, Suite 3900 Cleveland, OH 44114-1291 Telephone: (216) 566-5500 E-mail: kip.bollin@thompsonhine.com - and - Jennifer Saffold Collins, Esq. Joel G. Pieper, Esq. William McKenzie Ragland, Jr., Esq. WOMBLE BOND DICKINSON (US) LLP 271 17th Street NW, Suite 2400 Atlanta, GA 30363 Telephone: (404) 872-7000 E-mail: jennifer.collins@wcsr.com jpieper@wcsr.com wragland@wcsr.com - and - Henry B. Smythe, Jr., Esq. James E. Weatherholtz, Esq. WOMBLE CARLYLE SANDRIDGE & RICE, LLC 5 Exchange St. Charleston, SC 29401 Telephone: (843) 722-3400 E-mail: HSmythe@wcsr.com jweatherholtz@wcsr.com MDL 2495: Summ. Judgment Bid in Defective Roofing Suit Granted -------------------------------------------------------------- In the case, IN RE ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION. BRYAN MAKOWSKI on behalf of himself and all others similarly situated, Plaintiff, v. ATLAS ROOFING CORPORATION doing business as Meridian Roofing Company, Defendant, Civil Action No. 1:14-CV-3034-TWT, MDL Docket No. 2495, No. 1:13-md-2495-TWT (N.D. Ga.), Judge Thomas W. Thrash, Jr. of the U.S. District Court for the Northern District of Georgia, Atlanta Division, granted the Defendant's Motion for Summary Judgment. The action arises out of the marketing and sale of allegedly defective roofing shingles. Makowski is the owner of a home containing Atlas Shingles. In 2010, the Defendant discontinued sales of the Shingles. The Plaintiff alleges that the Shingles are defective in design, and filed the action seeking to represent a class of homeowners who own homes with the Shingles. On Aug. 28, 2014, the Plaintiff filed the Class Action Complaint in the U.S. District Court for the Eastern District of Kentucky. Prior to filing his Complaint, he received a letter from a law firm that ultimately became the Plaintiff's counsel in the case. On Sept. 22, 2014, the Judicial Panel on Multidistrict Litigation transferred the action to be consolidated with the multidistrict litigation pending before the Court. After the Court granted part of the Defendant's Motion to Dismiss, the Plaintiff's remaining claims are for negligence (Count I), negligent misrepresentation (Count II), strict products liability (Count III), breach of express warranty (Count IV), breach of implied warranty (Count V), violation of the Kentucky Consumer Protection Act (Count VI), fraudulent misrepresentation (Count VII), and fraudulent concealment (Count VIII). The Defendant now moves for summary judgment as to each of these claims. Judge Thrash finds that the Plaintiff has not shown that the blisters, cracks, and surface losses have caused any other type of injury to his property, which would be recoverable under Kentucky tort law. Therefore, the Defendant is entitled to summary judgment. The Judge concludes that the transfer limitation is not unconscionable. Since the Limited Warranty did not transfer to the Plaintiff, and since the Plaintiff did not rely on any other express warranties made by the Defendant, his claim for breach of express warranty fails. He explains that the economic loss rule bars recovery in such a situation where only economic damages are sought because the "essence" of such a claim is that losses occurred as a result of the defects and failure to perform as expected" and the "injury suffered -- the failure of the product to function properly -- is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain. Thus, the negligent misrepresentation claim also fails for this reason. Since the Plaintiff cannot show that he relied upon these communications, or was induced to act in some way by them, the Judge finds that the Plaintiff's claim for fraudulent misrepresentation fails as a matter of law. In addition, since the Plaintiff believed that the Defendant was untruthful concerning its representations that the Shingles met manufacturing specifications, he cannot also assert that he was induced to act by the Defendant's alleged partially disclosure of the truth. For this reason, his fraudulent concealment claim also fails as a matter of law. Finally, because there is no statutory or contractual basis for an award of attorneys' fees, and because all of the Plaintiff's claims fail as a matter of law, the Plaintiff's request for attorneys' fees also fails. For these reasons, Judge Thrash granted the Defendant's Motion for Summary Judgment. A full-text copy of the Court's June 8, 2018 Opinion and Order is available at https://is.gd/6MlttO from Leagle.com. Bryan Makowski, on behalf of himself and all others similarly situated, Plaintiff, represented by John C. Whitfield -- john@wbmllp.com -- Whitfield Bryson & Mason, LLP & Daniel K. Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason, LLP. Atlas Roofing Corporation, doing business as Meridian Roofing Company, Defendant, represented by Joel G. Pieper -- joel.pieper@wbd-us.com -- Womble Bond Dickinson (US) LLP, Jennifer Saffold Collins -- jennifer.collins@wbd-us.com -- Womble Bond Dickinson (US) LLP & William M. Ragland, Jr. -- bill.ragland@wbd-us.com -- Womble Bond Dickinson (US), LLP. MONRO INC: Mittelmark Sues over Warranties of Catalytic Converters ------------------------------------------------------------------ MARTIN MITTELMARK, on behalf of himself and all others similarly situated, the Plaintiff, v. MONRO, INC., the Defendant, Case No. 1:18-cv-00841-TJM-CFH (N.D.N.Y., July 17, 2018), alleges that the Defendant has a uniform policy of selling and installing new aftermarket replacement catalytic converters in New York and throughout the United States without adequately informing its customers of the applicable, legally-mandated warranties, and without completing or providing warranty cards to its customers as required by law. The Defendant falsely represents to its customers that the warranty on their new aftermarket replacement catalytic converters is only good for "the earlier of 90 days or 4,000 miles," and routinely refuses to replace converters that fail after this brief time frame even when such failures occur within the longer, legally-mandated warranty period. Because of Defendant's unlawful policies, the Plaintiff and the classes have been compelled to pay money to repair or replace the aftermarket replacement catalytic converters purchased from and installed by Defendant, which were covered by warranty and should have been repaired or replaced for free. Federal law mandates that all new aftermarket replacement catalytic converters must be warranted to comply with federal emission performance standards for 25,000 miles after purchase and installation, and also must be accompanied by a 5-year, 50,000-mile warranty on the converter shell and end pipes. Monro, Inc. provides automotive undercar repair, and tire sales and services in the United States.[BN] Attorneys for Plaintiff: Ross H. Schmierer, Esq. DeNITTIS OSEFCHEN PRINCE, P.C. 315 Madison Avenue, 3rd Floor New York, NY 10017 Telephone: (646) 979 3642 E-mail: rschmierer@denittislaw.com MOON RIDGE FOODS: Fails to Pay Wages, Morris Says ------------------------------------------------- DAWN MORRIS, on behalf of herself and all others similarly situated, Plaintiff, v. MOON RIDGE FOODS, LLC, and HERITAGE FOODS, LLC, Defendants, Defendant, Case No. 6:18-cv-03219-SRB (W.D. Mo., July 17, 2018), seeks to recover unpaid wages and ERISA benefits for 60 days, none of which has been paid. According to the complaint, the Defendants violated the Worker Adjustment and Retraining Notification Act by failing to give the Plaintiff and the Other Similarly Situated Employees of the Defendants at least 60 days' advance written notice of termination, as required by the WARN Act.[BN] The Plaintiff is represented by: Randall L. Rhodes, Esq. Christopher L. Kurtz, Esq. ROUSE FRETS GENTILE RHODES, LLC 5250 W. 116th Place, Suite 400 Leawood, KS 66211 Telephone: (913) 387 1600 Facsimile: (913) 928 6739 E-mail: rrhodes@rousefrets.com ckurtz@rousefrets.com - and - Stuart J. Miller, Esq. LANKENAU & MILLER, LLP 132 Nassau Street, Suite 1100 New York, NY 10038 Telephone: (212) 581 5005 Facsimile: (212) 581 2122 - and - Mary E. Olsen, Esq. M. Vance McCrary, Esq. THE GARDNER FIRM 182 St. Francis Street, Suite 103 Mobile, AL 36602 Telephone: (251) 433 8100 Facsimile: (251) 433 8181 - and - THE NLG MAURICE AND JANE SUGAR LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE, a non-profit law firm 4605 Cass Ave. Detroit, MH 48201 Telephone: (313) 993 4505 NATIONAL BEVERAGE: Violates Securities Exchange Act, Luczak Says ---------------------------------------------------------------- THOMAS W. LUCZAK, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. NATIONAL BEVERAGE CORP., NICK A. CAPORELLA, and GEORGE R. BRACKEN, the Defendants, Case No. 0:18-cv-61631-KMM (S.D. Fla., July 17, 2018), seeks 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 case is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired National Beverage securities between July 17, 2014 through July 3, 2018, both dates inclusive. National Beverage, through its subsidiaries, develops, produces, markets, and sells a portfolio of flavored beverage products in North America and internationally. The Company offers beverages to the active and health-conscious consumers, including sparkling waters under the LaCroix, LaCroix Curate, LaCroix NiCola, and Shasta Sparkling Water brand names. It serves retailers, as well as various up-and-down-the-street accounts through the take-home, convenience, and food-service distribution channels. The Company sells and markets its products through an internal sales force, as well as specialized broker networks. According to the complaint, on May 4, 2017, National Beverage issued a press release stating that it "employs methods that no other company does in this area -- VPO (velocity per outlet) and VPC (velocity per capita)". National Beverage asserted that it "utilize[s] two proprietary techniques to magnify this measure and this creates growth never before thought possible." 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) National Beverage's sales claims and the supposed underlying "proprietary techniques" lacked a verifiable basis; (ii) National Beverage's Chairman and Chief Executive Officer, Defendant Nick A. Caporella engaged in a pattern of sexual misconduct between 2014 and 2016; and (iii) as a result, National Beverage's public statements were materially false and misleading at all relevant times. On December 8, 2017, National Beverage issued a press release announcing its financial and operating results for the period ended October 28, 2017. Notwithstanding the Company's representations in its May 2017 press releases with respect to "creating growth never before thought possible," analyst Laurent Grandet of Credit Suisse assigned an "underperform" rating to the Company's stock. Grandet noted that National Beverage's business was driven "almost entirely" by the success of its LaCroix sparkling water brand, the growth trajectory of which was in fact slowing. That same day, Maxim analyst Anthony Vendetti reiterated a "sell" recommendation for National Beverage stock, noting that its "numerous weak brands and opaque financial reporting" made its sale "highly unlikely."[BN] The Plaintiff is represented by: Frank S. Hedin, Esq. DAVID W. HALL, Esq. HEDIN HALL LLP 1395 Brickell Ave, Suite 900 Miami, FL 33131 Telephone: (305) 357 2107 Facsimile: (305) 200 8801 E-mail: fhedin@hedinhall.com dhall@hedinhall.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com - and - Corey D. Holzer, Esq. HOLZER & HOLZER, LLC 1200 Ashwood Parkway, Suite 410 Atlanta, GA 30338 Telephone: (770) 392 0090 Facsimile: (770) 392 0029 E-mail: cholzer@holzerlaw.com NISSAN NORTH: Faces "Costa" Suit Over Defective Transmissions ------------------------------------------------------------- KRISTA COSTA, individually and on behalf of all others similarly situated v. NISSAN NORTH AMERICA, INC., a California corporation, Case No. 1:18-cv-11523 (D. Mass., July 20, 2018), alleges that Model Year 2013–2014 Nissan Altima vehicles contain defective continuously variable automatic transmissions ("CVT") that cause shuddering, hesitation, stalling, unusual noises, and ultimately, premature transmission failure. Ms. Costa contends that the CVTs pose a significant safety risk. She asserts that when the shuddering occurs, momentum of the Subject Vehicle is suddenly lost, the rate of speed drops or the vehicle stalls, and the brake lights do not illuminate. She adds that the defect is especially dangerous because it manifests when the driver presses the accelerator. Nissan North America, Inc., is a California corporation with its principal place of business in Franklin, Tennessee. The Company is the North American subsidiary of Nissan Motor Co. The Company designed, manufactured, marketed, distributed, leased, and sold, through its authorized dealers and distributors, the Subject Vehicles in the United States to the Plaintiff and the other Class members.[BN] The Plaintiff is represented by: David Pastor, Esq. PASTOR LAW OFFICE 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701 E-mail: dpastor@pastorlawoffice.com - and - Ben Barnow, Esq. Erich P. Schork, Esq. Anthony L. Parkhill, Esq. Jeffrey D. Blake, Esq. BARNOW AND ASSOCIATES, P.C. One North LaSalle Street, Suite 4600 Chicago, IL 60602 Telephone: (312) 621-2000 Facsimile: (312) 641-5504 E-mail: b.barnow@barnowlaw.com e.schork@barnowlaw.com aparkhill@barnowlaw.com j.blake@barnowlaw.com - and - Timothy G. Blood, Esq. Thomas J. O'Reardon, Esq. BLOOD HURST & O'REARDON, LLP 701 B Street, Suite 1700 San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com toreardon@bholaw.com NISSAN NORTH: Nguyen Appeals N.D. Calif. Ruling to Ninth Circuit ---------------------------------------------------------------- Plaintiff Huu Nguyen filed an appeal from a court ruling in the lawsuit titled Huu Nguyen v. Nissan North America, Inc., Case No. 5:16-cv-05591-LHK, in the U.S. District Court for the Northern District of California, San Jose. The appellate case is captioned as Huu Nguyen v. Nissan North America, Inc., Case No. 18-16344, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Plaintiff filed an appeal from a District Court ruling. That appellate case is captioned as Huu Nguyen v. Nissan North America, Inc., Case No. 18-80050. The Hon. Judge Lucy H. Koh previously denied the Plaintiff's motion for class certification of: Class: "all individuals in California who purchased or leased, from an authorized Nissan dealer, a new Nissan vehicle equipped with a FS6R31A manual transmission"; and CLRA Sub-Class: "all members of the Class who are "consumers" within the meaning of California Civil Code section 1761(d)." The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 20, 2018; -- Transcript is due on September 18, 2018; -- Appellant Huu Nguyen's opening brief is due on October 29, 2018; -- Appellee Nissan North America, Inc.'s answering brief is due on November 29, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant HUU NGUYEN, individually, and on behalf of a class of similarly situated individuals, is represented by: Glenn A. Danas, Esq. Jordan L. Lurie, Esq. John Ely Stobart, I, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 E-mail: Glenn.Danas@CapstoneLawyers.com Jordan.Lurie@CapstoneLawyers.com John.Stobart@CapstoneLawyers.com Defendant-Appellee NISSAN NORTH AMERICA, INC., a California Corporation, is represented by: Marshall Baker, Esq. Michael J. Stortz, Esq. DRINKER BIDDLE & REATH, LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105-2235 Telephone: (415) 591-7531 E-mail: marshall.baker@dbr.com mjstortz@dbr.com - and - Sherman Vance Wittie, Esq. DRINKER BIDDLE REATH LLP 1717 Main Street, Suite 5400 Dallas, TX 75201-7367 Telephone: (469) 357-2500 E-mail: vance.wittie@dbr.com ORLANDO, FL: Class Cert Denial in Red Light Camera Suit Affirmed ---------------------------------------------------------------- In the case, RICHARD EASTER, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, Appellant, v. CITY OF ORLANDO, Appellee, Case No. 5D17-276 (Fla. App.), Judge Judge Kerry I. Evander of the District Court of Appeal of Florida, Fifth District, affirmed the trial court's non-final order denying Easter's motion to certify the class. The case concerns an ordinance adopted by the City of Orlando that authorized the use of cameras to record vehicles that failed to properly stop at red lights. In addition to authorizing civil fines, the Ordinance authorized city-appointed hearing officers to assess administrative charges against a vehicle owner in the amount of the City's costs if the owner's appeal was denied. In August 2009, Naveel Nasari filed a class action suit against the City and the company administering the program, seeking: (1) a declaration that the Ordinance was preempted by state law, (2) an injunction from further enforcement, and (3) class damages for various claims including unjust enrichment. Michael Udowychenko subsequently replaced Nasari as the class representative. The trial court later entered a final order determining that the Ordinance was invalid because it was preempted by state law and otherwise conflicted with state statutes. The Court affirmed the trial court's decision in City of Orlando v. Udowychenko. In doing so, it certified conflict with City of Aventura v. Masone, where the sister court upheld the validity of a similar red-light camera ordinance. In a footnote, the Court noted that Udowychenko's motion to certify the class had been denied. This was initially a class action suit. Udowychenko's motion to certify the class was denied. The court noted that only Udowychenko had filed an action to challenge the ordinance and that others who paid the fine most likely would be barred by the doctrine of voluntary payment. However, the City did not list the denial of city licenses or permits as a nonpayment penalty in the notices of infraction, and it never imposed such penalties. Because that denial was not challenged on appeal, we did not address it further. In April 2010, the City sent Easter a notice of infraction of the Ordinance. He filed a notice of appeal, arguing, in part, that the Ordinance was unlawful. After a hearing officer upheld the infraction, Easter paid the fine. Thereafter, Easter filed the instant class action suit against the City. In November 2012, the parties filed a joint motion to stay proceedings pending resolution of the Udowychenko and Masone cases in the Florida Supreme Court. The conflict between Udowychenko and Masone was resolved by the Florida Supreme Court in Masone v. City of Aventura. There, in a 5-2 decision, the court held that both cities' ordinances were expressly preempted by state law. After the resolution of Udowychenko and Masone, and after engaging in discovery, Easter filed his motion to certify class. The trial court relied on the Florida Supreme Court's decision in Keton to conclude that the voluntary payment defense would be applicable in the instant case, stating, the Florida Supreme Court has long held that the doctrine applies when a local government imposes a fine later found preempted. On appeal, Easter argues that it was error for the trial court to rely on the application of the voluntary payment defense in denying his motion for class certification. Judge Evander agrees with the trial court that City of Miami v. Keton is controlling in the instant case and, thus, it was proper for the trial court to consider the application of the voluntary payment defense in determining whether to grant Easter's motion to certify the class. The voluntary payment defense provides that where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered. Reviewing the trial court's decision to deny class certification for an abuse of discretion, the Judge finds that the application of the voluntary payment defense doctrine supports the trial court's conclusion that Easter failed to prove the predominance element. The trial court properly concluded that in determining whether the City was required to pay refunds to potential claimants, individual issues would predominate over common issues. The Judge will also affirm the trial court's conclusion that Easter failed to establish the superiority element. In some ways, there is a certain cruelty to the Plaintiff's argument when he asserts that the Court should ignore the voluntary payment doctrine, certify the class with the attendant effect of raising hopes that notified class members only to later announce to them that they voluntarily paid their fines and are not equally entitled to relief. For these reasons, Judge Evander affirmed. A full-text copy of the Court's June 8, 2018 Opinion is available at https://is.gd/iP51mR from Leagle.com. David M. Kerner -- dkerner@shw-law.com -- and Jason E. Weisser -- jweisser@shw-law.com -- of Schuler, Halvorson, Weisser, Zoeller & Overbeck, P.A., and Andrew A. Harris -- geh@FLAppellateLaw.com -- of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant. Vincent Falcone III -- vfalcone@kbzwlaw.com -- David B. King -- DKing@kbzwlaw.com -- and Thomas A. Zehnder -- tzehnder@kbzwlaw.com -- of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, for Appellee. Stephen F. Rosenthal -- srosenthal@podhurst.com -- of Podhurst Orseck, P.A., Miami, for Amicus Curiae Florida Justice Association. POWER SWEEP: "Cooper" Suit Alleges FLSA Violations -------------------------------------------------- Nicholas Cooper, individually and on behalf of all others similarly situated v. Power Sweep, LLC and Keith Miller, Case No. 2:18-cv-00268 (E.D. Tex., July 2, 2018), is brought against the Defendants for overtime violations under the Fair Labor Standards Act. The Plaintiff was employed by Defendants during the FLSA's statutory period, during the past three years, and until he was terminated on approximately September 21, 2017. In this capacity, the Plaintiff's primary duty was to perform the work as a "Helper" and to conduct parking lot sweeps outside at Defendants' job sites. The Defendant Power Sweep, LLC is a parking lot sweeping business and does business throughout Texas. Defendant earns over $500,000.00 per year in gross sales. The Defendant Keith Miller holds himself out as the "Manager" of Defendant Power Sweep, LLC in which capacity he has controlled the day-to-day operations of Defendant. [BN] The Plaintiff is represented by: Jay Forester, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Tel: (214) 210-2100 Fax: (214) 346-5909 PRETE CONSTRUCTION: Inguil Seeks Overtime Pay under FLSA -------------------------------------------------------- Jorge Inguil, individually and on behalf all other employees similarly situated, the Plaintiff, v. Prete Construction Co. Inc., and Michael Prete, the Defendants, Case No. 1:18-cv-04097 (E.D.N.Y., July 17, 2018), seeks to recover overtime compensation for all hours worked over 40 each workweek under the Fair Labor Standards Act and the York Labor Law. According to the complaint, the Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in a pattern and practice of failing to pay their employees, including Plaintiff.[BN] The Plaintiff is represented by: Lorena P. Duarte, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Ave., Suite No. 10G Flushing, NY 11354 Telephone: (718) 353 8588 Facsimile: (718) 353 6288 E-mail: lduarte@hanglaw.com PROFESSIONAL DEBT: Marquez Sues over Debt Collection Practices -------------------------------------------------------------- MONICA MARQUEZ, individually and on behalf of all others similarly situated, the Plaintiff, v. PROFESSIONAL DEBT MEDIATION, INC., a Florida Profit Corporation, the Defendant, Case No. 1:18-cv-22874-UU (S.D. Fla., July 17, 2018), seeks to recover alleges that Defendant is engaged in unlawful scheme to collect debts in violation of the Fair Debt Collection Practices Act. According to the complaint, the Plaintiff received a communication from Professional Debt Mediation, Inc. dated June 15, 2018, seeking to collect a debt purportedly owed by Plaintiff. The communication says the debt purportedly owed by Plaintiff was $4,415.50. At the bottom of the Notice, Professional Debt Mediation states that the communication "is an attempt to collect a debt, and any information obtained will be used for that purpose." As a debt collector attempting to collect a debt, Professional Debt Mediation is required to comply with the requirements of the FDCPA, which protects consumers by preventing false, deceptive or misleading representations by debt collectors. However, Professional Debt Mediation violated the requirements of the FDCPA by failing to comply with the initial notice requirements in 15 U.S.C. 1692(g). Professional Debt is a collection agency located in Jacksonville, Florida.[BN] The Plaintiff is represented by: ZEBERSKY PAYNE, LLP 110 S.E. 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 595 6060 Facsimile: (954) 989 7781 RACK ROOM: Peralta Seeks to Certify Class ----------------------------------------- In the lawsuit captioned CESAR PERALTA, on behalf of himself and other persons similarly situated, the Plaintiff, v. RACK ROOM SHOES, INC., Defendant, Case No. 2:18-cv-03738-JTM-JCW (E.D. La.), the Plaintiff asks the Court for an order certifying the case as a class action. A copy of the Motion is available from PacerMonitor.com at https://is.gd/TBQBlG at no charge. Attorneys for Plaintiff: Jonathan Mille Kirkland, Esq. Roberto Luis Costales, Esq. William H. Beaumont, Esq. Jonathan Mille Kirkland, Esq. BEAUMONT COSTALES LLC 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 534 5005 Facsimile: (504) 272 2956 E-mail: jmk@beaumontcostales.com RATHA REST: Court Certifies FLSA Class in "Sooknanan" Lawsuit -------------------------------------------------------------- In the lawsuit captioned AMANDA SOOKNANAN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. RATHA REST INC., d/b/a PERISTA RESTAURANT, ARIS PATILIS, GEORGE SIKOLAS and TOM PATILIS, jointly and severally, the Defendants, Case No. 1:18-cv-03218-KPF (S.D.N.Y.), the Court entered an order conditionally certifying a Fair Labor Standards Act collective action and authorizing notice to be issued to all persons similarly situated. A copy of the Court Order is available from PacerMonitor.com at https://is.gd/im0Jdq at no charge. Attorneys for Plaintiff: Brent E. Pelton, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385 9700 Facsimile: (212) 385 0800 Attorneys for Defendant: Demetrios Adamis, Esq. DEMETRIOS ADAMIS 61-43 176th Street Fresh Meadows, NY 11365 Telephone: (718) 687 7410 RAYMOND JAMES: Passport Account Customers' Suit Dismissal Flipped ----------------------------------------------------------------- In the case, JYLL BRINK, on her own behalf, and on behalf of those similarly situated, Plaintiff-Appellant, v. RAYMOND JAMES & ASSOCIATES, INC., Defendant-Appellee, Case No. 16-14144 (11th Cir.), Judge Jill Pryor of the U.S. Court of Appeals for the Eleventh Circuit reversed the district court's order dismissing Brink's putative class action complaint, and remanded for further proceedings. As an alternative to a traditional commission-based investment account, RJA offered a "Passport Account" program that charged customers an annual advisory fee based on the total value of qualifying assets in the account instead of a commission based on each individual trade. In addition, Passport Account customers were charged a flat fee per transaction. In its written agreement with each Passport Account customer, RJA described this flat fee as a "Processing Fee" for "transaction execution and clearing services" and stated that the Processing Fees were "not commissions." RJA published a schedule of the Processing Fees in the Passport Agreement. Before Oct. 1, 2013, RJA's Processing Fees ranged from $30 to $50 per transaction, depending on the type of security. Beginning Oct. 1, 2013, RJA reduced the Processing Fees to range from $9.95 to $30.00. But the actual costs incurred in the execution and clearing of the transactions were much lower than the Processing Fees charged, allegedly no more than $5.00 per transaction. RJA kept as profit any amount above the actual costs associated with transaction execution and clearing. Brink filed the putative class action complaint alleging state law claims for breach of contract and negligence. She alleged that because Passport Account customers had agreed only to pay for "expenses incurred in facilitating the execution and clearing" of their trades, RJA's undisclosed profit built into the Processing Fees breached the Passport Agreement. She also claimed that RJA breached its duty of care owed to its customers, which she alleged included a duty to charge customers a reasonable fee for its services. After class certification discovery, Brink moved for class certification, and RJA moved for summary judgment. While both of those motions were still pending, RJA filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Brink's state law claims were disguised claims for federal securities fraud. Thus, RJA claimed, Brink's putative class action was precluded under SLUSA. The district court concluded that Brink's claims were precluded because RJA's alleged conduct constituted a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security, and granted RJA's motion to dismiss. Brink appeals. She argues that the district court erred in determining that her state law claims for negligence and breach of contract against RJA were precluded under Title I of the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), which prohibits class actions alleging state law causes of action based on conduct that constitutes federal securities fraud. Specifically, she disputes that her complaint alleged that RJA made a misrepresentation of a material fact in connection with the purchase or sale of a covered security. After careful review, Judge Pryor reverses the district court's order, and remanded for further proceedings consistent with her opinion. She finds that RJA's alleged undisclosed profit on the Processing Fee for each transaction -- a fee for transaction execution and clearing, known and agreed to in advance by Passport Account customers -- objectively could not make a significant difference to a reasonable investor's decision to purchase or sell a covered security. As the court in Feinman v. Dean Witter Reynolds, Inc. noted, if brokerage firms are slightly inflating the cost of their transaction fees, the remedy is competition among the firms in the labeling and pricing of their services, not resort to the securities fraud provisions. The conduct alleged in Brink's complaint is therefore not a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security. Because she concludes that the alleged misrepresentation was not material, she does not consider whether it was made "in connection with" the purchase or sale of covered securities. SLUSA does not preclude Brink's putative class action. A full-text copy of the Court's June 8, 2018 Opinion is available at https://is.gd/dQzeGA from Leagle.com. Samuel Wayne Braver -- samuel.braver@bipc.com -- for Defendant-Appellee. Mark A. Romance -- MRomance@richmangreer.com -- for Plaintiff-Appellant. G. Calvin Hayes -- calvin.hayes@bipc.com -- for Defendant-Appellee. Manuel A. Garcia-Linares -- mlinares@richmangreer.com -- for Plaintiff-Appellant. Hala A. Sandridge -- hala.sandridge@bipc.com -- for Defendant-Appellee. Lyle E. Shapiro -- lyle@hslawfl.com -- for Plaintiff-Appellant. Joshua Lee Spoont -- jspoont@richmangreer.com -- for Plaintiff-Appellant. Eric Mathew Sodhi -- esodhi@richmangreer.com -- for Plaintiff-Appellant. Darren Craig Blum -- blum@stockattorneys.com -- for Plaintiff-Appellant. Randall Charles Place -- randall_place@placeandhanley.com -- for Plaintiff-Appellant. Sara Elizabeth Hanley -- sara_hanley@placeandhanley.com -- for Plaintiff-Appellant. RIABLE LAW: Higgins Seeks to Certify 2 Arkansas Residents Classes ----------------------------------------------------------------- In the lawsuit entitled Rickey Don Higgins, on behalf of himself and others similarly situated Plaintiff, v. Riable Law Firm, Inc. d/b/a Riable Law Firm Mark Justin Riable, the Defendant, Case No. 4:17-cv-00794-BSM (E.D. Ark.), the Plaintiff asks the Court for an order certifying two classes: Class 1: "all Arkansas residents, (ii) who were sent a letter in the form of Exhibit 1, attached to the Second Amended Class Action Complaint, from Defendants, (iii) which was not returned undeliverable by the U.S. Post Office, (iv) in an attempt to collect a delinquent balance on a lease agreement, (v) between December 5, 2016 and December 4, 2017"; and Class 2: "all Arkansas residents, (ii) who were sent a letter in the form of Exhibit 2, attached to the Second Amended Class Action Complaint, from Defendants, (iii) which was not returned undeliverable by the U.S. Post Office, (iv) in an attempt to collect a delinquent balance on a lease agreement, (v) between December 5, 2016 and December 4, 2017." The Plaintiff also moves that he be named as the class representative of Class 1 and Class 2, and that his attorney, Corey D. McGaha of Crowder McGaha, LLP, be appointed as class counsel. A copy of the Motion is available from PacerMonitor.com at https://is.gd/anpLM7 at no charge. Attorneys for Plaintiff: Corey D. McGaha, Esq. William T. Crowder, Esq. CROWDER MCGAHA, LLP 5507 Ranch Drive, Suite 202 Little Rock, AR 72223 Telephone: (501) 205 4026 Facsimile: (501) 367 8208 E-mail: cmcgaha@crowdermcgaha.com wcrowder@crowdermcgaha.com RUBICON OILFIELD: "Medved" Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------- Peter Medved, individually and on behalf of all others similarly situated, Plaintiff, v. Rubicon Oilfield International Holdings, LLC and Tercel Oilfield Products USA, LLC, Defendant, Case No. 18-cv-00973 (W.D. Pa., July 24, 2018), seeks to recover unpaid overtime and other damages for violation of the Fair Labor Standards Act. Rubicon is an oil and gas service provider operating throughout the United States. It acquired Tercel, an oilfield products company in May 2016. Tercel specializes in drilling and completions technologies. Plaintiff worked for Defendants as a Frac Plug Technician/Field Service Technician from approximately February 2018 until May 2018 in their Pennsylvania and Ohio facilities. Medved was paid a salary regardless of the number of hours they worked that day without any overtime pay for hours that they worked in excess of forty hours in a workweek, says the complaint. [BN] Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, 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 adunlap@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 - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Tel: 412-766-1455 Fax: 412-766-0300 Email: josh@goodrichandgeist.com SAADEH CORP: Pongnorsing Sues over Payment Packing -------------------------------------------------- SUIWONNEE PONGNORSING individually; and on behalf of all others similarly situated, the Plaintiff, v. SAADEH CORP., an active California oration, dba ALAMEDA COUNTY AUCTION/AUTO WORLD; ADEL SAADEH, an individual, and DMV LICENSEE, DOE INSURANCE COMPANY, BANKOF STOCKTON, an active California Corporation; an DOES 1 through 500, inclusive, the Defendants, Case No. RG18913127 (Cal. Super. Ct., July 17, 2018), alleges that Defendants violated the Consumers Legal Remedies Act and Rees-Levering Motor Vehicle Sales and Finance Act. According to the complaint, the Plaintiff purchased a $30,000 used vehicle and walked away paying almost $45,000. The Seller engaged in payment packing and two of the "products" were not installed on the vehicle. The car dealer sold the vehicle with known, undisclosed damage only a franchised Mercedes dealer could repair. The Dealer was allegedly able to defraud Plaintiff by failing to include "Plus Disclosures" in the advertisement and Payment Packing by adding charges for Lojack Theft Deterrent System ($1,995.00 - and failed to install nor register with Lojack); Etch Theft Deterrent System (Charged $1,900.00 for a valueless product even at $99.00, what most unscrupulous car dealers charge); Cilajet Paint & Fabric Protection (for a charge of $1,995.00. Dealers refer to this as "mop & glo" - another worthless product and failed to install it and register it for coverage); Service Contract ($3,999.00); and, GAP ($855) after representing these items to be free of charge. Saadeh operates as an automobile dealer.[BN] The Plaintiff is represented by: Luis A. Liberty, Esq. LUIS LIBERTY & ASSOCIATES, PLC 553 Pilgrim Drive, Suite Al Foster City, CA 94404 Telephone: (650) 341 0300 E-mail: lou@carlawyer.com SAN DIEGO BLOOD BANK: Moran Seeks Unpaid Overtime Wages ------------------------------------------------------- Carlos Moran, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiffs, v. San Diego Blood Bank and Does 1-50, Defendant, Case No. 37-2018-00025721, (Cal. Super., May 23, 2018), seeks redress for meal and rest break violations, failure to compensate for all hours worked, failure to provide proper wage statements, reimbursement of business-related expenses and failure to pay earned wages upon discharge including waiting time penalties under the Unfair Business Practices statutes of the California Business and Professions Code, the California Labor Code and Welfare Commission Orders. Defendants offer a wide range of blood banking services from blood collection to autologous storage. San Diego Blood Bank employed Moran as a Blood Collection Specialist from approximately July 2007 to the end of his employment in October 2017. He worked approximately eight to twelve hours or more per day, five to six days per week and forty hours or more per week, all without overtime pay. [BN] Plaintiff is represented by: Bevin Allen Pike, Esq. Jennifer R. Bagosy, Esq. Suzy E. Lee, Esq. Ari Y. Basser, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Email: Bevin.Pike@capstonelawyers.com Jennifer.Bagosy@capstonelawyers.com Suzy.Lee@capstonelawyers.com Ari.Basser@capstonelawyers.com SILVER DOLLAR: Hill-Smith Seeks Minimum, Overtime Wages ------------------------------------------------------- MYA HILL-SMITH, Individually and on Behalf of All Others Similarly Situated v. SILVER DOLLAR CABARET, INC.; PLATINUM CABARET, LLC; ANTHONY F. CATROPPA; and ANTHONY K. CATROPPA, Case No. 5:18-cv-05145-PKH (W.D. Ark., July 19, 2018), accuses the Defendants of violating the minimum wage and overtime requirements of the Fair Labor Standards Act and the Arkansas Minimum Wage Act. SDC is an Arkansas corporation. SDC operates an adult entertainment club located at 2125 North College Avenue, in Fayetteville, Arkansas. Platinum is an Arkansas corporation. Platinum operates an adult entertainment club located at 2366 North College Avenue, in Fayetteville, Arkansas. Anthony K. Catroppa is a principal, director or officer of the Corporate Defendants.[BN] The Plaintiff is represented by: Steve Rauls, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: steve@sanfordlawfirm.com josh@sanfordlawfirm.com SNYDER'S-LANCE: Vanderstelts Seeks Payment of Lost Wages -------------------------------------------------------- Scott Vanderstelt and Vandy Vanderstelt, on behalf of themselves and all similarly situated natural person(s), the Plaintiffs, v. Snyder's-Lance, Inc., and S-L Distribution, LLC, the Defendants, Case No. 4:18-cv-01963-AMQ (D. S.C., July 17, 2018), seeks to recover lost wages, declaratory relief and all available relief under the South Carolina Payment of Wages Act and the Fair Labor Standards Act of 1938. Snyder's is a snack product development and sales company.[BN] The Plaintiff is represented by: Shaun C. Blake, Esq. Jenkins M. Mann, Esq. P. Wesley Jackson, Esq. ROGERS LEWIS JACKSON MANN &QUINN, LLC 1901 Main Street, Suite 1200 P.O. Box 11803 Columbia, SC 29201 Telephone: (803) 256 1268 E-mail: sblake@rogerslewis.com jmann@rogerslewis.com wjackson@rogerslewis.com SONY COMPUTER: Final Judgment Entered in PS3 "Other OS" Class Suit ------------------------------------------------------------------ Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California has entered final judgment in the case, In re SONY PS3 "OTHER OS" LITIGATION, Case No. 10-CV-01811-YGR (N.D. Cal.), in accordance with her Final Approval Order dated June 8, 2018, and the Settlement it incorporates. The Final Judgment constitutes a judgment and a separate document for purposes of Federal Rule of Civil Procedure 58(a). Only those persons listed in Exhibit B to the Final Judgment have submitted timely and valid requests for exclusion from the Settlement Class and are therefore not bound by the Final Judgment and the accompanying Final Approval Order. A full-text copy of the Court's June 8, 2018 Final Judgment is available at https://is.gd/tWlo3q from Leagle.com. Anthony Ventura, on behalf of himself and all others similarly situated, Plaintiff, represented by Alexander Matthew Freeman -- afreeman@calvofisher.com -- Calvo & Clark, LLP, Gordon M. Fauth, Jr. -- gfauth@finkelsteinthompson.com -- Litigation Law Group, James J. Pizzirusso -- jpizzirusso@hausfeldllp.com -- Hausfeld LLP, Rebecca Coll -- rcoll@quadracoll.com -- Quadra & Coll, LLP, Arthur Nash Bailey, Jr. -- abailey@hausfeld.com -- Hausfeld LLP, Douglas Greg Blankinship -- gblankinship@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, James Andrew Quadra -- jquadra@quadracoll.com -- Quadra & Coll, LLP, Kathleen Victoria Fisher -- kfisher@calvofisher.com -- Calvo & Clark, LLP, Rosanne L. Mah -- rmah@finkelsteinthompson.com -- Finkelstein Thompson & William N. Hebert -- whebert@calvofisher.com -- Calvo Fisher & Jacob LLP. Jonathan Huber, Plaintiff, represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw -- dwarshaw@pswplaw.com -- Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. James Girardi, Plaintiff, represented by represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. Derrick Alba & Jason Baker, Plaintiffs, represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. Sony Computer Entertainment America LLC, Defendant, represented by Luanne Sacks -- lsacks@srclaw.com -- Sacks, Ricketts & Case, LLP, Carter Winford Ott -- carter.ott@doj.ca.gov -- DLA Piper LLP US, Cynthia A. Ricketts -- cricketts@srclaw.com -- Sacks, Ricketts & Case LLP, pro hac vice, Joseph Edward Collins -- jcollins@foxrothschild.com -- Fox Rothschild LP, Michael Tedder Scott, DLA PIPER LLP & Michele D. Floyd -- mfloyd@srclaw.com -- Sacks, Ricketts & Case LLP. Jason Baker, Plaintiff in the Related Case, Interested Party, represented by John R. Fabry, Fabry Law Firm, Rebecca Coll, Quadra & Coll, LLP, Charles Stewart Bishop -- cbishop@cbslawllp.com -- Sinunu Bruni LLP, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP & William N. Hebert, Calvo Fisher & Jacob LLP. John Navarrete, Objector, represented by Joshua Reuben Furman -- jrf@furmanlawyers.com -- Joshua R. Furman Law Corporation. Mr. Eric Michael Lindberg, Objector, represented by Sam Andrew Miorelli -- sam.miorelli@gmail.com -- Law Office of Sam Miorelli, P.A. SONY COMPUTER: Settlement in PS3 "Other OS" Suit Has Final Approval ------------------------------------------------------------------- In the case, In re SONY PS3 "OTHER OS" LITIGATION, Case No. 10-CV-01811-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the Plaintiffs' Renewed Motion for Attorneys' Fees and Costs and for Service Awards for the Plaintiffs; and the Plaintiffs' Renewed Motion for Final Approval of Class Action Settlement. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge certified, for settlement purposes, which he previously provisionally certified, the class of any and all persons in the United States who purchased a Fat PS3 in the United States between Nov. 1, 2006 and April 1, 2010 from an authorized retailer for family, personal, and/or household use and who: (1) used the Other OS functionality; (2) knew about the Other OS functionality; or (3) contends or believes that he or she lost value or desired functionality or was otherwise injured as a consequence of Firmware Update 3.21 and/or the disablement of Other OS functionality in the Fat PS3. She awarded the Class Counsel attorneys' fees and litigation costs in the total amount of $1,250,000 to be paid out of the Settlement Fund, as set forth in the Court's Order Granting In Part plaintiffs' Renewed Motion for Attorneys' Fees, Costs, and Incentive Awards, entered. From this amount, as set forth in the Court's separate Order of this date, the Class Counsel are ordered to pay to Objector Susan Lindberg attorneys' fees, costs, and incentive award in the total amount of $22,836. She also awarded service awards in the amount of $3,500 each, to each of the Plaintiffs as the Class Representatives, to compensate them for their commitments and efforts on behalf of the Class in the Action. These service awards will be paid out of the Settlement Fund. The Parties are to bear their own costs, except as awarded by the Court in the Final Approval Order. In her Order Granting Plaintiff's Renewed Motion for Preliminary Approval, Judge Rogers directed the parties to appoint a Settlement Administrator. The Settlement Administrator will continue to perform those duties and responsibilities that remain under the Settlement and this Final Approval Order. The Parties and Settlement Administrator are directed to implement the Final Approval Order and the Settlement in accordance with the terms and provisions thereof, including the processing and payment of Claims. Te Clerk will enter Final Judgment, consistent with the Order, forthwith. The Class Counsel will serve a copy of the Final Approval Order on all named parties or their counsel and the Settlement Administrator immediately upon receipt and the Settlement Administrator will post a copy of the Final Approval Order on the Settlement Website immediately upon receipt. The parties will submit a final report and accounting within 45 days of the entry of the Final Approval Order. The Judge set a Compliance hearing regarding the filing of the final report and accounting on the Court's 2:01 p.m. calendar on Aug. 3, 2018. If the parties timely file their report, he will vacate the compliance hearing and no appearance will be required. A full-text copy of the Court's June 8, 2018 Order is available at https://is.gd/pmQuFa from Leagle.com. Anthony Ventura, on behalf of himself and all others similarly situated, Plaintiff, represented by Alexander Matthew Freeman -- afreeman@calvofisher.com -- Calvo & Clark, LLP, Gordon M. Fauth, Jr. -- gfauth@finkelsteinthompson.com -- Litigation Law Group, James J. Pizzirusso -- jpizzirusso@hausfeldllp.com -- Hausfeld LLP, Rebecca Coll -- rcoll@quadracoll.com -- Quadra & Coll, LLP, Arthur Nash Bailey, Jr. -- abailey@hausfeld.com -- Hausfeld LLP, Douglas Greg Blankinship -- gblankinship@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, James Andrew Quadra -- jquadra@quadracoll.com -- Quadra & Coll, LLP, Kathleen Victoria Fisher -- kfisher@calvofisher.com -- Calvo & Clark, LLP, Rosanne L. Mah -- rmah@finkelsteinthompson.com -- Finkelstein Thompson & William N. Hebert -- whebert@calvofisher.com -- Calvo Fisher & Jacob LLP. Jonathan Huber, Plaintiff, represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw -- dwarshaw@pswplaw.com -- Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. James Girardi, Plaintiff, represented by represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. Derrick Alba & Jason Baker, Plaintiffs, represented by Alexander Matthew Freeman, Calvo & Clark, LLP, Gordon M. Fauth, Jr., Litigation Law Group, Arthur Nash Bailey, Jr., Hausfeld LLP, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, James J. Pizzirusso, Hausfeld LLP, pro hac vice, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP, Rebecca Coll, Quadra & Coll, LLP, Rosanne L. Mah, Finkelstein Thompson & William N. Hebert, Calvo Fisher & Jacob LLP. Sony Computer Entertainment America LLC, Defendant, represented by Luanne Sacks -- lsacks@srclaw.com -- Sacks, Ricketts & Case, LLP, Carter Winford Ott -- carter.ott@doj.ca.gov -- DLA Piper LLP US, Cynthia A. Ricketts -- cricketts@srclaw.com -- Sacks, Ricketts & Case LLP, pro hac vice, Joseph Edward Collins -- jcollins@foxrothschild.com -- Fox Rothschild LP, Michael Tedder Scott, DLA PIPER LLP & Michele D. Floyd -- mfloyd@srclaw.com -- Sacks, Ricketts & Case LLP. Jason Baker, Plaintiff in the Related Case, Interested Party, represented by John R. Fabry, Fabry Law Firm, Rebecca Coll, Quadra & Coll, LLP, Charles Stewart Bishop -- cbishop@cbslawllp.com -- Sinunu Bruni LLP, James Andrew Quadra, Quadra & Coll, LLP, Kathleen Victoria Fisher, Calvo & Clark, LLP & William N. Hebert, Calvo Fisher & Jacob LLP. John Navarrete, Objector, represented by Joshua Reuben Furman -- jrf@furmanlawyers.com -- Joshua R. Furman Law Corporation. Mr. Eric Michael Lindberg, Objector, represented by Sam Andrew Miorelli -- sam.miorelli@gmail.com -- Law Office of Sam Miorelli, P.A. SOUTHEAST TITLE: Eleventh Circuit Appeal Filed in "Drinosky" Suit ----------------------------------------------------------------- Plaintiff Kristie Drinosky filed an appeal from a court ruling in the lawsuit titled Kristie Drinosky v. Southeast Title of the Suncoast, Inc., et al., Case No. 8:17-cv-00735-JSM-CPT, in the U.S. District Court for the Middle District of Florida. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendant for alleged failure to pay overtime compensation in violation of the Fair Labor Standards Act. The appellate case is captioned as Kristie Drinosky v. Southeast Title of the Suncoast, Inc., et al., Case No. 18-13026, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant's Certificate of Interested Persons is due on or before August 2, 2018, as to Appellant Kristie Drinosky; and -- Appellee's Certificate of Interested Persons is due on or before August 16, 2018, as to Appellee James G. Smith.[BN] Plaintiff-Appellant KRISTIE DRINOSKY, o/b/o herself and others similarly situated, is represented by: Jay Paul Lechner, Esq. Jason Michael Melton, Esq. William J. Sheslow, Esq. WHITTEL & MELTON, LLC 200 Central Avenue, Suite 400 St Petersburg, FL 33701 Telephone: (727) 823-0000 Facsimile: (727) 898-2001 Email: leachnerj@theFLlawfirm.com jason@thefllawfirm.com will@theFLlawfirm.com Defendants-Appellees SOUTHEAST TITLE OF THE SUNCOAST, INC., a Florida profit company, and JAMES G. SMITH are represented by: Daniel R. Levine, Esq. BENNARDO LEVINE, LLP 1860 NW Boca Raton Blvd. Boca Raton, FL 33432 Telephone: (561) 544-8900 E-mail: drlevine@bennardolevine.com ST. JUDE MEDICAL: ASEA/AFSCME Hits Defibrillator Battery Defect --------------------------------------------------------------- ASEA/AFSCME Local 52 Health Benefits Trust, individually and on behalf of a class of similarly situated third party payors, Plaintiff, v. St. Jude Medical, LLC and Abbott Laboratories, Defendants, Case No. 18-cv- 02124, (D. Minn., July 24, 2018), seeks actual, statutory and punitive damages, restitution, prejudgment and post-judgment interest on any amounts awarded, attorneys' fees and costs of suit and such other and further relief resulting from unjust enrichment, breach of express and implied warranty, negligence and violation of the Minnesota Prevention of Consumer Fraud Act and the Alaska Consumer Protection Act. St. Jude Medical, LLC and Abbott Laboratories are accused of the manufacture, sale and distribution of defective Implantable Cardiac Defibrillator (ICD) and Cardiac Resynchronization Therapy Defibrillator (CRT-D) devices. Deposits of lithium within the battery and create abnormal electrical connections that cause the battery to short circuit, leading to rapid battery failure, says the complaint. ASEA/AFSCME Local 52 Health Benefits Trust is a voluntary employee benefit association providing healthcare benefits to participants and their eligible family members. It purchased defective ICD devices and CRT-D devices manufactured and sold by St. Jude Medical, Inc., and recalled on or about October 10, 2016. ICD and CRT-D devices provide pacing therapy to support slow heart rhythms, and electrical shock or pacing therapy to treat fast heart rhythms. [BN] Plaintiff is represented by: Karl L. Cambronne, Esq. Bryan L. Bleichner, Esq. Jeffrey D. Bores, Esq. CHESTNUT CAMBRONNE PA 17 Washington Avenue North, Suite 300 Minneapolis, MN 55401 Telephone: (612) 339-7300 Email: kcambronne@chestnutcambronne.com bbleichner@chestnutcambronne.com jbores@chestnutcambronne.com - and - Adam J. Levitt, Esq. Amy E. Keller, Esq. Adam Prom, Esq. DICELLO LEVITT & CASEY LLC Ten North Dearborn Street, Eleventh Floor Chicago, IL 60602 Tel: (312) 214-7900 Fax: (440) 953-9138 Email: alevitt@dlcfirm.com akeller@dlcfirm.com aprom@dlcfirm.com - and - Kim D. Stephens, Esq. Jason T. Dennett, Esq. Cecily C. Shiel, Esq. TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, WA 98101 Tel: (206) 682-5600 Fax: (206) 682-2992 Email: kstephens@tousley.com jdennett@tousley.com cshiel@tousley.com - and - Rebecca A. Peterson, Esq. Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Ave. S Ste. 2200 MPLS, MN 55401−2179 Tel: (612) 339−6900 Fax: (612) 339−0981 Email: rkshelquist@locklaw.com rapeterson@locklaw.com STUMPS MARKET: Fails to Pay OT & Minimum Wages, Martinez Says ------------------------------------------------------------- CESAR MARTINEZ, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. STUMPS MARKET, INC., a California corporation; and DOES 1 through 10,inclusive, the Defendant, Case No. 37-2D13-00035669-CU-OE-CTL (Cal. Super Ct., July 17, 2018), seeks to recover unpaid overtime and minimum wages under the California Labor Code. The Plaintiff alleges that Defendants knew or should have known that Plaintiff and class members were entitled to receive at least minimum wages for compensation and that they were not receiving at least minimum wages for work that was required to be done off-the-clock in violation of the California Labor Code. The Plaintiff and class members were not paid at least minimum wages for work done off-the-clock. Stumps Market operates grocery stores.[BN] The Plaintiff is represented by: Robert Drexler, Esq. Jonathan Lee, Esq. Ariel Harman-Holmes, Esq. Capstone Law APC 1875 Century Park East. Suite 1000 Los Angeles, CA 90067 Telephone: (320) 556 4811 Facsimile: (310) 943 0396 E-mail: Robert.Drexler@capstonelawyers.com Jonathan.Lee@capstonelawyers.com Ariel.Harman-Holmes@capstonelawyers.com SUSAN B. ANTHONY: Wijesinha Sues over Unsolicited Text Message -------------------------------------------------------------- SHEHAN WIJESINHA individually and on behalf of all others similarly situated, the Plaintiff, v. SUSAN B. ANTHONY LIST, INC., the Defendant, Case No. 1:18-cv-22880-JEM (S.D. Fla., July 17, 2018), seeks statutory damages on behalf of herself and Class Members, and any other available legal or equitable remedies resulting from the illegal actions of Defendant under the Telephone Consumer Protection Act. According to the complaint, the Plaintiff and Class Members have no relationship with Defendant, and never provided their telephone numbers to Defendant. Nevertheless, Defendant embarked on an unsolicited text message campaign, causing Plaintiff and class members injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.[BN] The Plaintiff is represented by: Ignacio J. Hiraldo, Esq. IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Telephone: 786.496.4469 E-mail: ijhiraldo@ijhlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400 4713 E-mail: mhiraldo@hiraldolaw.com T&R PAINTING: Fails to Pay Minimum & Overtime Wages, Macias Says ---------------------------------------------------------------- MIGUEL MACIAS, as an individual and on behalf of all others similarly situated, the Plaintiff, v. T&R PAINTING & DRY WALL, a California 19 Corporation; and DOES 1 through 100, the Defendant, Case No. BC714160 (Cal. Super. Ct., July 17, 2018), seeks to recover minimum wage and overtime wage under the California Labor Code. According to the complaint, the Plaintiff has worked for Defendants from 1995-1999, then again from 2012 to February 2018. The Plaintiff's primary job duties included foreman responsibility, painting, and spraying. During his employment with Defendants, Plaintiff typically worked six or seven days per week and worked approximately 66-77 hours per week. Throughout his employment with Defendants, Plaintiff was paid on a piece-rate basis, whereby he was paid a pre-determined amount per job based on the construction projects he completed, denoted on wage statements as "piecework." Plaintiff and other non-exempt employees were compensated exclusively on a piece-rate basis, and Defendants did not maintain any record of the hours worked by Plaintiff or other non-exempt employees who were compensated on a piece-rate basis. During his employment with Defendants, Defendants failed to pay Plaintiff and other non-exempt employees who were compensated on a piece-rate basis for so-called "nonproductive" time (i.e., hours that they were working but were not actually performing piece-rate work). T & R Painting operates as a drywall, plaster, and painting contractor.[BN] The Plaintiff is represented by: Paul K. Haines, Esq. Fletcher W. Schmidt, Esq. Andrew J. Rowbotham, Esq. Brittaney D. de la Torre, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com bdelatorre@haineslawgroup.com TAH PIZZA: Underpays Delivery Drivers, Otis Claims -------------------------------------------------- JERRY OTIS, individually and on behalf of similarly situated persons, the Plaintiff, v. TAH PIZZA, INC., BE HURD, INC., and TIMOTHY HURD, the Defendants, Case No. 2:18-cv-00111 (E.D. Tenn., July 17, 2018), seeks to recover unpaid wages owed to Plaintiff and similarly situated delivery drivers employed by Defendants at its Domino's stores. The Plaintiff brings this lawsuit as a collective action under the Fair Labor Standards Act. The Defendants operate numerous Domino's Pizza franchise stores. Defendants employ delivery drivers who use their own automobiles to deliver pizza and other food items to their customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the drivers' unreimbursed expenses cause their wages to fall below the federal minimum wage during some or all workweeks.[BN] The Plaintiff is represented by: J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa Parks Ave. Suite 200 Nashville, TN 37203 Telephone: 615 254 8801 Facsimile: 615 255 5419 E-mail: gerards@bsjfirm.com - and - Matthew Haynie, Esq. Jay Forester, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210 2100 Facsimile: (214) 346 5909 E-mail: matthew@foresterhaynie.com jay@foresterhaynie.com TAL EDUCATION: Extract Sues over False Reports, Share Price Drop ---------------------------------------------------------------- JACK EXTRACT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. TAL EDUCATION GROUP, ZHANG BANGXIN, YUNFENG BAI, and LUO RONG, the Defendants, Case No. 1:18-cv-06440 (S.D.N.Y., July 17, 2018), seeks 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 and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. The case is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired TAL securities between April 26, 2018 and June 13, 2018, both dates inclusive. According to the complaint, TAL provides educational services, and offers comprehensive tutoring services to students covering core academic subjects such as mathematics, English, Chinese, physics, chemistry. Throughout the Class Period, the 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) TAL overstated its net income; (ii) TAL's net income was in fact deteriorating; and (iii) as a result of the foregoing, TAL's public statements were materially false and misleading at all relevant times. On June 13, 2018, Carson Block issued a report accusing TAL of issuing fraudulent profit figures by overstating net income, net income margin and other essential accounting metrics. On this news, TAL's ADR price fell $4.54, or over 9.95%, to close at $41.11 on June 13, 2018, on unusually heavy trading volume. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com TARGET CORPORATION: Dormani Appeals D. Minn. Decision to 8th Cir. ----------------------------------------------------------------- Plaintiffs Ann Dormani, Mitchell W. Knoll, David Rigol and Dorothea Simmons filed an appeal from the District Court's order dated June 15, 2018, and judgment dated June 18, 2018, in their lawsuit titled Ann Dormani, et al. v. Target Corporation, et al., Case No. 0:17-cv-04049-JNE, in the U.S. District Court for the District of Minnesota. As previously reported in the Class Action Reporter, the lawsuit seeks to recover actual damages in the amount of losses the Target Corporation 401(k) Plan suffered, to be allocated to the Plan Participants' individual accounts in proportion to the accounts' losses. The Plan is a defined contribution plan sponsored by Target. The Plaintiffs allege that in February 2013, at the beginning of the Class Period, the Fund comprised more than $2 billion of the approximate $4.19 billion in total assets held by the Plan, or almost half of the Plan's net assets, and to compound the problems alleged, the Plan acquired hundreds of millions of dollars of Target Stock while those shares were artificially inflated. The Plaintiffs allege violations of the Employee Retirement Income Security Act. The appellate case is captioned as Ann Dormani, et al. v. Target Corporation, et al., Case No. 18-2543, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before August 28, 2018; -- Appendix is due on September 7, 2018; -- Brief of Appellants Ann Dormani, Mitchell W. Knoll, David Rigol and Dorothea Simmons is due on September 7, 2018; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief.[BN] Plaintiffs-Appellants Ann Dormani, Mitchell W. Knoll, David Rigol and Dorothea Simmons, on behalf of the Target Corporation 401(k) Plan, themselves, and a class consisting of similarly situated participants of the Plan, are represented by: Michael J. Klein, Esq. STULL, STULL & BRODY Six E. 45th Street, Fifth Floor New York, NY 10017-0000 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: mklein@ssbny.com - and - David Ernest Krause, Esq. DAVID E. KRAUSE LAW OFFICE 2716 Colfax Avenue, S. Minneapolis, MN 55408 Telephone: (612) 872-8446 E-mail: dkrause@davidkrauselaw.com - and - Nancy Kulesa, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: nkulesa@zlk.com Defendants-Appellees Target Corporation, Scott Kennedy, Michael Fiddelke, Plan Investment Committee, John Mulligan, Corey Haaland, Jodee Kozlak, Beth Jacob and Gregg W. Steinhafel are represented by: Jeffrey Justman, Esq. Steven L. Severson, Esq. Wendy J. Wildung, Esq. FAEGRE BAKER DANIELS LLP 2200 Wells Fargo Center 90 S. Seventh Street Minneapolis, MN 55402-3901 Telephone: (612) 766-7000 E-mail: jeff.justman@faegrebd.com sseverson@faegre.com TESLA INC: Settlement in "Sheikh" Suit Has Prelim Approval ---------------------------------------------------------- In the case, DEAN SHEIKH, et al., Plaintiffs. v. TESLA, INC. d/b/a TESLA MOTORS, INC., Defendant, Case No. 5:17-cv-02193-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiffs' unopposed Motion for Preliminary Approval of Class Action Settlement. The Motion attaches and incorporates a Settlement Agreement and Release that, together with the exhibits thereto, set forth the terms and conditions for the settlement of claims, on a classwide basis, against Tesla. Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, and for purposes of settlement only, the Judge preliminarily approved the the Settlement Class of all U.S. residents who purchased Enhanced Autopilot in connection with their purchase or lease of a Tesla Hardware 2 Model S or Model X vehicle delivered to them on or before Sept. 30, 2017. Under Federal Rule of Civil Procedure 23, and for settlement purposes only, Plaintiffs Sheikh, John Kelner, Tom Milone, Daury Lamarche and Michael Verdolin are appointed the Class Representatives and Steve W. Berman, Thomas E. Loeser, and Robert F. Lopez, Hagens Berman Sobol Shapiro LLP, 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 as the Class Counsel. Jugde Freeman approved of KCC, LLC to perform the functions and duties of the Settlement Administrator set forth in the Settlement Agreement. She approved the Notice Plan and the form, content, and requirements of the Class Notice, and the Summary Notice. The Settlement Administrator will cause the Notice Plan to be executed on or before July 23, 2018. The Class Counsel, prior to the Final Approval Hearing, will file with the Court a declaration executed by the Settlement Administrator attesting to the timely completion of the Notice Plan. All costs of providing notice to the Settlement Class, notice to appropriate federal and state officials as required by the Class Action Fairness Act of 2005, and administering distributions from the Settlement Fund will be separately paid by Tesla, as provided by the Settlement Agreement. A Settlement Class Member wishing to request exclusion from the Settlement will mail the request in written form and postmarked no later than Sept. 6, 2018, to the Settlement Administrator at the address specified in the Class Notice. The Settlement Administrator will provide promptly, and no later than five business days following the deadline for the Settlement Class Members to opt-out, all Parties with copies of any exclusion requests, and the Plaintiffs will file a list of all persons who have validly opted out of the Settlement with the Court prior to the Final Approval Hearing. The Court will consider objections to the Settlement, to the award of attorneys' fees and costs, or to the service awards to the Class Representatives only if such objections and any supporting papers are postmarked or filed on or before Sept. 6, 2018. The Federal Rule of Civil Procedure 23(e) Final Approval Hearing is scheduled to be held before the Court at 9:00 a.m. on Oct. 17, 2018. On or before 14 days in advance of Sept. 6, 2018, the Class Counsel will file any application for attorneys' fees and expenses and service awards to the Class Representatives. The Papers in support of final approval of the settlement will be filed no later than Oct. 5, 2018. Either Party may, but need not, file a response to any objection no later than 10 days prior to the Final Approval Hearing. A full-text copy of the Court's June 8, 2018 Preliminary Approval Order is available at https://is.gd/2p2R36 from Leagle.com. Dean Sheikh, John Kelner & Tom Milone, Plaintiffs, represented by Robert F. Lopez -- robf@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Daury Lamarche & Michael Verdolen, Plaintiffs, represented by Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Michael Verdolin, Plaintiff, represented by Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Tesla, Inc., a Delaware corporation, Defendant, represented by Claudia Maria Vetesi -- cvetesi@mofo.com -- Morrison & Foerster LLP, Lauren Lynn Wroblewski -- lwroblewski@mofo.com -- Morrison & Foerster LLP, Penelope Athene Preovolos -- ppreovolos@mofo.com -- Morrison & Foerster LLP & Sean Paul Gates -- spg@charislex.com -- Charis Lex P.C.. TEXAS: Settlement in "Cole" Suit Has Final Approval --------------------------------------------------- In the case, KEITH COLE, individually, and JACKIE BRANNUM, RICHARD KING, MICHAEL DENTON, FRED WALLACE, and MARVIN RAY YATES, individually and on behalf of those similarly situated, Plaintiffs, v. BRYAN COLLIER, in his official capacity, ROBERTO HERRERA, in his official capacity, and TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants, Civil Action No. 4:14-cv-1698 (S.D. Tex.), Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas, Houston Division, finally approved the parties Settlement. The Plaintiffs in the class action are incarcerated in the Wallace Pack Unit of the Texas Department of Criminal Justice ("TDCJ") prison system. They brought the action pursuant to 42 U.S.C. Section 1983, the Americans with Disabilities Act, and the rehabilitation Act to end TDCJ's policy and practice of exposing them to extreme, unsafe heat. They allege that the extreme heat that they face each summer subjects them to a substantial risk of serious harm in violation of the Eighth Amendment, and infringes on the rights of disabled prisoners to reasonable accommodations. After nearly four years of contentious litigation, the parties reached agreement on a class settlement on Jan. 31, 2018, which requires TDCJ to air-condition the housing units in which class members reside. The Class Counsel are responsible for monitoring compliance with the agreement. The settlement provides for the Class Counsel to recover attorneys' fees for their compliance monitoring. The Court granted preliminary approval of the settlement, directed notice to the class, and held a final fairness hearing. Based on the memorandum and documents in support of the proposed settlement, the parties' arguments at the preliminary approval hearing, the filed objections, the parties' and objectors' arguments at the final fairness hearing, the remainder of the record, and the relevant law, Judge Ellison finally approved the proposed settlement. He awarded the Class Counsel attorneys' fees and expenses of $4.5 million, as negotiated and agreed by the parties. In the event that the Plaintiffs' attorneys' fees and expenses in the amount of $4.5 million have not been paid in full by Sept. 30, 2019, TDCJ agrees the judgment will be entered against TDCJ in the amount of $4.5 million plus interest at the rate of 5% from Jan. 30, 2018. A full-text copy of the Court's June 8, 2018 Final Order and Judgment is available at https://is.gd/pc5wgO from Leagle.com. Marvin Ray Yates, Jackie Brannum, Richard Elvin King & Fred Wallace, Plaintiffs, represented by Wallis Anne Nader, Texas Civil Rights Project, David Anthony James, Edwards Law, Jeremy L. Doyle -- doyle@reynoldsfrizzell.com -- Reynolds Frizzell LLP, Michael C. Singley, Edwards Law, Natalia Marissa Cornelio, Texas Civil Rights Project, Nathan M. Smith -- nsmith@reynoldsfrizzell.com -- Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law & Jeffrey S. Edwards -- jeff@edwards-law.com -- The Edwards Law Firm. Keith Cole, Plaintiff, represented by David Anthony James, Edwards Law. Lavar John Santee, Plaintiff, represented by David Anthony James, Edwards Law, Jeffrey S. Edwards, The Edwards Law Firm, Jeremy L. Doyle, Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law & Wallis Anne Nader, Texas Civil Rights Project. Michael Denton, Plaintiff, represented by Jeffrey S. Edwards, The Edwards Law Firm, Natalia Marissa Cornelio, Texas Civil Rights Project & Wallis Anne Nader, Texas Civil Rights Project. Israel Garcia, Plaintiff, represented by Jeffrey S. Edwards, The Edwards Law Firm. Anthony Ray Banks, Plaintiff, pro se. Charles L Williams, Plaintiff, pro se. William Harrison Blackwell, Plaintiff, pro se. David C Garrett, Plaintiff, pro se. Albert Hunter, Plaintiff, pro se. Bryan Collier, Roberto M Herrera & Texas Department of Criminal Justice, Defendants, represented by Briana Marie Webb, Office of the Attorney General, Darren Lee McCarty, Office of the Attorney General of Texas, Derek Josef Kammerloche , Office of the Attorney General Law Enforcement Defense Div, John S. Langley, Attorney General of Texas, Leah Jean O'Leary, Office of the Attorney General Law Enforcement Defense Division & Matthew J. Greer, Texas Attorney General. Jeffrey R Adams, Defendant, pro se. Richard Jaxson, Movant, pro se. TITAN FIRE: Riveras File FLSA Suit in E.D. New York --------------------------------------------------- HECTOR RIVERA and MARCO RIVERA, on behalf of themselves and all others similarly situated, the Plaintiffs, v. TITAN FIRE SPRINKLERS INC. d/b/a TITAN FIRE SPRINKLERS, TITAN FIRE PROTECTION, INC., and STEPHEN RACCOMANDATO, an individual, the Defendants, Case No. 2:18-cv-04084-JMA-AYS (E.D.N.Y., July 17, 2018), seeks to recover overtime wage under the Fair Labor Standards Act of 1938 and the New York Labor Law. According to the complaint, the Plaintiffs and other similarly situated laborers regularly worked over 40 hours a week for Defendants. The Defendants, however, failed to pay them time and one-half their regular rate for all hours worked because Defendants either (1) only paid their employees at their regular, non-prevailing wage rate or (2) did not pay their employees for all of the hours they worked.[BN] Attorneys for Plaintiffs and the Putative FLSA Collective: Troy L. Kessler, Esq. Garrett Kaske, Esq. SHULMAN KESSLER LLP 534 Broadhollow Road, Suite 275 Melville, NY 11747 Telephone: (631) 499 9100 TOTAL MERCHANT: "Collins" Suit Seeks to Certify Class ----------------------------------------------------- In the lawsuit styled DR. TIMOTHY COLLINS and SIDNEY NAIMAN, individually and on behalf of all others similarly situated, the Plaintiffs, v. TOTAL MERCHANT SERVICES, INC., QUALITY MERCHANT SERVICES, INC., MICHAEL ALIMENTO and BOBBY POWERS, the Defendants, Case No. 4:17-cv-03806-CW (N.D. Cal.), the Plaintiff will move the Court for an order on August 14, 2018: 1. certifying a class of; "all persons in the United States to whom: (a) Quality instituted one or more telephone calls; (b) for the purpose of promoting Total Merchant's goods or services; (c) to a recipient's cellular telephone number; (d) through the use of the SpitFire dialing system or an artificial or prerecorded voice; (e) between December 1, 2016 and February 12, 2018 (inclusive)"; 2. appointing him to serve as the Class representative; 3. appointing his counsel to serve as counsel for the proposed class; and 4. directing Plaintiff to submit a proposed notice plan and form of notice within a reasonable A copy of the Notice of Motion is available from PacerMonitor.com at https://is.gd/9tcvs1 at no charge. Attorneys for Plaintiffs and the Proposed Class: Jon B. Fougner, Esq. FOUGNER LAW 600 California Street, 11th Fl. San Francisco, CA 94108 Telephone: (434) 623 2843 Facsimile: (206) 338 0783 E-mail: Jon@FougnerLaw.com - and - Anthony I. Paronich, Esq. BRODERICK & PARONICH, P.C. 99 High Street, Suite 304 Boston, Massachusetts 02110 Telephone: (508) 221 1510 Facsimile: (617) 830 0327 E-mail: anthony@broderick-law.com - and - Matthew P. McCue, Esq. THE LAW OFFICE OF MATTHEW P. McCUE 1 South Avenue, Suite 3 Natick, Massachusetts 01760 Telephone: (508) 655 1415 Facsimile: (508) 319 3077 E-mail: mmccue@massattorneys.net - and - Andrew W. Heidarpour, Esq. HEIDARPOUR LAW FIRM, PPC 1300 Pennsylvania Ave. NW, 190-318 Washington, DC 20004 Telephone: (202) 234 2727 E-mail: AHeidarpour@HLFirm.com TRANSUNION INTERACTIVE: Sporn Sues over Misleading Credit Scores ---------------------------------------------------------------- MICHAEL SPORN, on behalf of himself and all others similarly situated, the Plaintiff, v. TRANSUNION INTERACTIVE, INC., the Defendant, Case No. CGC-18-568168 (Cal. Super. Ct., July 17, 2018), alleges that TUI is engaged in an advertising and marketing campaign with the intent to directly induce consumers, including Plaintiff and the Class members, to purchase the TUI Consumer Credit Scores based on false and misleading claims. The complaint contends that the Plaintiff and the Class members were injured in fact and lost money as a result of the false and/or misleading representations by TUI and/or the agents or representatives acting on TUI's behalf. Plaintiff and the Class members received TUI Consumer Credit Scores that were generated using a significantly different credit scoring system than the credit scoring system used to generate the scores that lenders use in making the vast majority of consumer lending and credit decisions.[BN] Counsel for Michael Sporn and the Proposed Class: Michael R. Reese, Esq. George V. Granade, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643 0500 Facsimile: (212) 253 4272 E-mail: mreese@reesellp.com ggranade@reesellp.com TRUST CAPITAL: Robert Bohlke Seeks Damages under TCPA ----------------------------------------------------- Robert Bohlke, individually and on behalf of all others similarly situated v. Trust Capital Funding, LLC, and Does 1 through 10, Case No. 2:18-cv-05786 (C.D. Calif., July 2, 2018), seeks damages and other available or equitable remedies for the Defendants' violations of the Telephone Consumer Protection Act. The Plaintiff Robert Bohlke is a resident of Canyon Country, California. The Defendant Trust Capital Funding, LLC is a loan company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (877) 206-4741 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com TWENTY-FIRST CENTURY: Federman Balks at Disney Merger Accord ------------------------------------------------------------ MAX FEDERMAN, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. TWENTY-FIRST CENTURY FOX, INC., RUPERT MURDOCH, LACHLAN K. MURDOCH, CHASE CAREY, SIR RODERICK I. EDDINGTON, DELPHINE ARNAULT, JAMES W. BREYER, DAVID DEVOE, VIET DINH, JAMES MURDOCH, JACQUES NASSER, ROBERT SILBERMAN and TIDJANE THIAM, the Defendants, Case No. 1:18-cv-01061 (D. Del., July 17, 2018), seeks to enjoin a stockholder vote on a proposed merger transaction pursuant to which, after spinning off certain of its businesses into a newly listed company, 21CF will be acquired by the Walt Disney Company through TWDC Holdco 613 Corp., WDC Merger Enterprises I, Inc. and WDC Merger Enterprises II, Inc. The Plaintiff contends that 21CF and the members of its Board of Directors are in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. On June 20, 2018, 21CF and Disney issued a joint press release announcing they had entered into an Amended and Restated Agreement and Plan of Merger. Under the terms of the Merger Agreement, stockholders of 21CF will receive $38 per share, with the election to receive their consideration, on a value equalized basis, in the form of cash or stock,3 subject to 50/50 proration and further subject to adjustment for certain tax liabilities. The Proposed Transaction is valued at $71.3 billion in cash and stock. Following the completion of the Proposed Transaction, assuming the tax adjustment amount is zero, 21CF stockholders will own 17-20% and Disney stockholders will own 80-83% of the combined company. On June 28, 2018, 21CF filed a Schedule 14A Definitive Proxy Statement with the SEC. The Proxy Statement, which recommends that 21CF stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) 21CF's financial projections, including the financial projections relied upon by 21CF's financial advisors, Goldman Sachs & Co. LLC and Centerview Partners LLC, in their financial analyses; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinions provided by Goldman and Centerview; and (iii) Goldman's potential conflicts of interest. The failure to adequately disclose such material information constitutes a violation of Sections 14(a) and 20(a) of the Exchange Act as 21CF stockholders need such information in order to make a fully-informed voting or appraisal decision in connection with the Proposed Transaction. In short, unless remedied, 21CF's public stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them.[BN] Attorneys for Plaintiff: Ryan M. Ernst, Esq. Daniel P. Murray, Esq. O'KELLY ERNST & JOYCE, LLC 901 N. Market St., Suite 1000 Wilmington, DE 19801 Telephone.: (302) 778 4000 E-mail: rernst@oelegal.com dmurray@oelegal.com UMI SUSHI: Gao Seeks Minimum & Overtime Wages under FLSA -------------------------------------------------------- SHIQIANG GAO, on his own behalf and on behalf of others similarly Situated Plaintiff, v. UMI SUSHI, INC. d/b/a Umi Sushi; LING XIE CORP. d/b/a Dai Hachi Sushi; DAI HACHI SUSHI CORPORATION d/b/a Dai Hachi Sushi; LUO KUN ZHENG, SUMIATI ONG a/k/a Amy Ong, AI ZHEN ZHENG, and LING XIE, the Defendants, Case No. 1:18-cv-06439 (S.D.N.Y., July 17, 2018), seeks to recover unpaid minimum wage, unpaid overtime wages, liquidated damages, unreimbursed out-of-pocket vehicle costs, prejudgment and post-judgement interest, and attorney's fees and cost under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in pattern and practice of failing to pay its employees, including Plaintiff, minimum wage for each hour worked and overtime compensation for all hours worked over 40 each workweek. Umi Sushi serves traditional Japanese dishes, plus more exciting and inventive ones.[BN] Attorney for the Plaintiff, proposed FLSA Collective and potential Rule 23 Class: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Telephone: (718) 762 1324 UNION OF CALIFORNIA: State Workers Sue to Recover Union Fees ------------------------------------------------------------ Matthew Renda, writing for Courthouse News Service, reported that in the aftermath of a landmark Supreme Court decision barring employee unions from extracting mandatory fees from workers who do not want to contribute, two government employees sued their union to get back the money they were forced to pay. It is one of the first cases of its kind to emerge in the wake of Janus v. AFSCME, handed down by the nation's highest court June 27. Lead plaintiffs Jeff Lyon and Karen Sandberg filed the class action in Sacramento County Superior Court on July 10, saying they were due restitution for the agency fees paid to the Union of California State Workers over the course of their careers. "Millions if not billions of dollars have been exacted from nonmembers in California alone," the plaintiffs say in the complaint. "Through this action, plaintiffs and those similarly situated seek to recover those fees that should never have been taken from them in the first place." Mr. Lyon worked for the California Department of General Services from 2001 until 2014, paying as much as $40 a month in agency fees to the union despite not being a member. Ms. Sandberg worked for the state in various positions and for various departments over the course of a long career in public service from 1989 through 2015. Ms. Sandberg did not belong to any union but paid as much as $90 a month in agency fees to the state workers union. "By this action, plaintiffs seek restitution of all involuntarily paid agency fees from the defendant unions, with interest, for themselves and for all others similarly situated," the pair says in their complaint. They are represented by Eric George of Browne George Ross in Los Angeles. The Janus decision was celebrated as a triumph of free speech by the victors, who argued forcing nonmembers to pay dues is an unconstitutional violation of their rights. The court ultimately agreed 5-4, along ideological lines. Leading up to and after the decision, labor advocates have expressed worry that working Americans will be hurt and the clout of unions will be diminished. "In this case, a bare majority of the court, over the vigorous dissent of four justices, has conceded to the dark web of corporations and wealthy donors who wish to take away the freedoms of working people," AFL-CIO President Richard Trumka said after the decision was handed down. The Union of California State Works, also known as SEIU 1000, did not respond to requests for comment as of press time. UNITED COLLECTION: Court Approves Class Action Settlement --------------------------------------------------------- In the lawsuit RE UNITED COLLECTION BUREAU, INC., Case No. 2:15-cv-01306-CLW (D.N.J.), the Hon. Judge Cathy Waldor entered an order: 1. granting final approval of class action settlement; and 2. certifying Settlement Classes for purposes of the effectuating the settlement and directing parties to consummate the settlement according to the terms of the Settlement Agreement: Class One: "all natural persons with addresses in Hackensack, New Jersey to whom, from February 19, 2014 to February 19, 2015, Defendant or its letter vendor(s) sent one or more collection letter(s) on behalf of Citibank, N.A., which was not returned by the United States Postal Service as undeliverable, and was sent in a windowed envelope such that Defendant's reference number associated with the debt and/or the barcode containing Defendant's reference number associated with the debt was visible from outside the envelope. Excluded from this Class is Hyun Soon Chung." Class Two: "all natural persons with addresses in the State of New Jersey to whom, from February 4, 2015 to February 20, 2016, Defendant or its letter vendor(s) sent one or more collection letter(s) on behalf of Citibank, N.A., which was not returned by the United States Postal Service as undeliverable, and was sent in a windowed envelope such that the barcode containing Defendant's reference number associated with the debt was visible from outside the envelope." Class Three: "all natural persons with addresses in the State of New Jersey to whom, from March 22, 2015 to March 22, 2016, Defendant or its letter vendor(s) sent one or more collection letter(s) on behalf of LVNV Funding LLC, which was not returned by the United States Postal Service as undeliverable, and was sent in a windowed envelope such that the barcode containing the Defendant's reference number associated with the debt was visible from outside the envelope." The Court said, "For their efforts on behalf of the Settlement Classes and to settle their individual claims, Defendant shall pay $4,000 to Plaintiff Sungsoo Park, $2,500 to Plaintiff Tremaine K. Watkins, $2,500 to Plaintiff Georgina Sandoval, and $2,500 to Plaintiff Elizabeth E. Jun in the manner set forth in the Settlement Agreement within 7 days of the date of this Order. A copy of the Order is available from PacerMonitor.com at https://is.gd/OHvepJ at no charge. UNITED STATES: Cass County Joins Class Action Over PILT Funds ------------------------------------------------------------- Gail DeBoer, writing for The Pilot-Independent, reports that Cass County will join a class action lawsuit to recover additional Payment In Lieu of Taxes (PILT) funds from the federal government. PILT is paid on federal lands on which property taxes are not collected, like the Chippewa National Forest. [GN] UNITED STATES: Court Orders Father-Son Reunification ---------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Plaintiffs' Motion for Preliminary Injunction in the cases captioned W.S.R. and C.D.A., Plaintiffs, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, et al., Defendants, Nos. 18 C 04265, 18 C 04291 (N.D. Ill.). In two separate cases, minors W.S.R. and C.D.A. challenge the placement decisions of the United States government after the boys (who are not related to one another) were forcibly separated from their fathers shortly after the father-son pairs crossed the United States-Mexico border. Both W.S.R. and C.D.A. filed motions for a temporary restraining order, and after holding a hearing, the Court granted the motions as to one type of relief, but converted the motions into a preliminary-injunction motion with an expedited briefing schedule as to the other types of relief sought by W.S.R. and C.D.A. The first claim at issue is the Plaintiffs' request to be immediately reunited with their fathers. This is a narrower claim than the request that the reunification be effectuated by simultaneously releasing their fathers. The Court notes that the class-action order in Ms. L. II already requires that the government reunite Plaintiffs with their fathers by July 26, which is the thirty-day deadline for children age five and over. Practically speaking, the government has stated that it intends to comply with the class-action order and does not directly oppose Plaintiffs' request for reunification it only contests the timeline and the broader request for simultaneous release of the fathers. The Plaintiffs allege that their continued separation from their fathers violates their substantive due process right to familial association. In this case, the initial separation was triggered by the decision to prosecute W.S.R.'s and C.D.A.'s fathers for re-entry misdemeanors and to put the fathers in criminal detention; there was no basis for the separation premised on parental unfitness or danger to the children. The fathers' criminal detentions necessitated the separation of W.S.R. and C.D.A. But the fathers are now back in immigration custody, so the specific interest is a child's right to reunify with his parent in immigration custody, after the parent's criminal detention ends and absent parental unfitness or danger to the child. That specifically and concretely described right is supported by the long line of cases, cited above, that established and continually reaffirm the fundamental right of a child to remain in the custody of a fit parent. Although Congress has broad authority to regulate immigration, even in that context the Supreme Court approved of a regulation that presumptively placed detained minors with their parents. Against all this, the government does not actually come right out and say that there is no right to reunification on these facts. The government says only that the protection of the parent-child relationship is dependent on the "circumstances of a particular case and the asserted right must be considered "in light of the fact" that the fathers are in immigration custody but then offers no explanation, just a bare conclusion, that the fathers' immigration custody results in no valid substantive due process claim. That lack of argument, and the long-established recognition of a child's right to remain in a fit parent's custody, leads the Court to hold, at this preliminary stage, that the fundamental right to reunify with a fit parent in immigration custody does exist and does apply to W.S.R. and C.D.A. Common sense would tell anyone that keeping these boys separated from the only family they have in the United States in a facility where they have limited access to talk to their fathers and where very few people speak their language is causing irreparable harm, for which no other form of relief, monetary or otherwise, would be adequate. But there is more than common sense. In the record is this plea of hopelessness from W.S.R., when he finally spoke to his father on the phone: "Dad, I'm never going to see you again. W.S.R. is crying a lot and desperate to get out of the center where he is being held." As intense as that harm is, nine-year-old C.D.A. is suffering worse. A clinical psychologist, Dr. Michelle Cutler, interviewed and evaluated C.D.A. Clinical Assessment. Dr. Cutler also reviewed the records of Heartland Alliance, including daily monitoring logs, counseling notes, incident reports, and psychiatric records. Based on this thorough and detailed assessment, Dr. Cutler opines that C.D.A. is suffering severe anxiety and depression due to this separation. This deterioration of mental health is showing up in both reported thoughts of self-harm and actual acts of self-harm, as well as harming others. Those are just examples of C.D.A.'s mental suffering; the Clinical Assessment is riddled with other cries for help that demonstrate the trauma of the separation. The government contends that reunifying the Plaintiffs with their fathers on a faster track than the Ms. L. II order will impede its efforts to timely comply with that class-action order. The Plaintiffs argue that this hardship is self-inflicted. That is true: the government embarked on a zero-tolerance policy, bringing misdemeanor charges and separating thousands of children from their parents, without a plan for reunification after the short time-served sentences. On these facts, there is no doubt that the scales of justice weigh entirely in the Plaintiffs' favor. What makes this a close call, however, is that the Court also must consider the public interest, which includes the ramifications of granting or denying the preliminary injunction on non-parties to the litigation. It is true that the public interest is served by requiring reunification. But there are around 3,000 other children who have been separated from their parents, and picking out W.S.R. and C.D.A. to leapfrog over others poses the risk that diverting resources in order to effectuate the accelerated reunification for W.S.R. and C.D.A. would delay the reunification of other children. The outcome of the balancing of equities, and consideration of the public interest, is this: absent any government filing alleging parental unfitness or danger posed by the fathers, the government must reunite C.D.A. with his father and must reunite W.S.R. with his father, both within 72 hours of the posting of this order on the docket. The governmental interest is expressed in the statutes governing mandatory detention for those seeking asylum at the stages of the process that the Plaintiffs' fathers find themselves in. (C.D.A.'s father has received a negative finding after his credible-fear interview and therefore is subject to mandatory detention has not yet had his credible-fear interview, but he is also subject to detention while awaiting his credible fear interview. So the fathers may be released only if they are granted parole, which is a decision in the sole discretion of the Attorney General and can only be granted under narrowly prescribed circumstances, such as urgent humanitarian reasons or significant public benefit or a medical emergency or a legitimate law enforcement objective. What's more, an alien who is subject to expedited removal and who is seeking to establish a credible fear of persecution is not eligible for release on bond. To accept the Plaintiffs' argument that substantive due process requires release of the fathers would amount to deeming the mandatory detention statutes unconstitutional as applied. There is simply no case law support for recognizing that right. Accordingly, the Court grants the following relief: The government must reunite C.D.A. with his father within 72 hours of the posting of this order on the docket.172. The government must reunite W.S.R. with his father within 72 hours of the posting of this order on the docket. The government must continue to comply with the order of June 29, 2018. Specifically, the Defendants and their officers, agents, servants, employees, attorneys and all those who are in active concert or participation with them are preliminarily enjoined from removing from the United States either without W.S.R. or without C.D.A. The other preliminary relief requested by the Plaintiffs is denied. A full-text copy of the District Court's July 9, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yddpvcwl from Leagle.com. C.D.A., a minor, Plaintiff, represented by Amy Michelle Rubenstein -- amy.rubenstein@dlapiper.com -- DLA Piper LLP, John R. Wellschlager -- john.wellschlager@dlapiper.com -- DLA Piper LLP, pro hac vice, Katrina A. Hausfeld -- katrina.hausfeld@dlapiper.com -- DLA Piper LLP, Leeanne Sara Mancari -- leeanne.mancari@dlapiper.com -- DLA Piper LLP, pro hac vice, Peter J. Farrell -- peter.farrell@dlapiper.com -- DLA Piper LLP, pro hac vice, Thomas P. Yardley -- TYardley@rsplaw.com -- Robbins, Salomon & Patt, Ltd. & Amy Maldonado , Attorney at law. Jefferson B. Sessions, III, Attorney General of the United States, Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security, Thomas Homan, Acting Director, U.S. Immigration and Customs Enforcement, Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection, Alex M. Azar, III, Secretary, U.S. Department of Health and Human Services, Scott Lloyd, Director, Office of Refugee Resettlement, Ricardo Wong, Director, ICE Field Office for Enforcement and Removal Operations in Chicago, IL & Margaret Hartnett, Director, ICE Field Office for Enforcement and Removal Operations in El Paso, TX, Defendants, represented by Craig Arthur Oswald , United States Attorney's Office, Sarah Bernadette Fabian , U.S. Department Of Justice Office of Immigration Litigationm, District Court Section & Joshua Samuel Press , U.S. Department of Justice, Civil Division Office of Immigration Litigation -- District Court Section. Heartland Human Care Services, Inc., Defendant, represented by David Justin Dale -- ddale@staubanderson.com -- Staub Anderson LLC & Eric Daniel Anderson -- eanderson@staubanderson.com -- Staub Anderson Green LLC. UNITED STATES: Faces Class Suit Over Refugee Program Termination ---------------------------------------------------------------- Andrea Castillo, writing for Los Angeles Times, reports that she dreamed for 16 years of bringing her children from El Salvador to live with her near San Francisco. Her youngest daughter and her grandson were set to arrive in February 2017, thanks to a federal program that reunited Central American children with their parents in the United States. But the month came and went without their anticipated flight confirmation from immigration authorities. It wasn't until August that the mother, identified by her lawyers as S.A., found out that the Trump administration had quietly ended the program. "When I realized that everything had come crashing down, I suffered a lot," the 52-year-old said in a recent phone interview while on a break from her job at a lice-removal company. "It still hurts not having them here." The demise of the program was just the latest rollback under President Trump of an Obama-era humanitarian relief initiative. The current administration has abruptly ended programs including the Deferred Action for Childhood Arrivals and a case management program meant to keep asylum-seeking families out of detention. The so-called Central American Minors program was created in late 2014 in response to a surge of tens of thousands of unaccompanied children fleeing violence in the region. The program was billed as a safe alternative to a dangerous journey north through Mexico. It allowed immigrants who were lawfully present in the U.S. to apply for refugee status or humanitarian parole on behalf of their children under age 21, as well as their own spouses and grandchildren living in El Salvador, Guatemala or Honduras. The program failed to stem the flow of unaccompanied children. But it worked as a way to reunite some families. Doris Meissner -- who led the Immigration and Naturalization Service from 1993 to 2000 and now serves as director of the U.S. immigration policy program at the Migration Policy Institute — said that "the CAM program, as modest as it was, was always an effort to create a safer way of coming to the United States for people who actually had an eligibility to come." "Cutting that off simply worsens what it is [the Trump administration] say that they're trying to deter." S.A. is one of six plaintiff families in a class-action lawsuit filed earlier this month in California against the administration over the termination of the refugee program. The lawsuit alleges that the government secretly ended the program days after Trump took office in January 2017 but didn't publicly announce the decision until that August, violating their constitutional rights to due process and equal protection. Lawyers say U.S. Citizenship and Immigration Services did this despite continuing to accept funds from applicants, including $400 for DNA tests, $100 or more for medical exams and $1,400 for each child's plane ticket. In response to a Freedom of Information Act request by the International Refugee Assistance Project, the citizenship agency released emails showing that it had canceled more than 2,000 CAM interviews scheduled beginning in January. A spokeswoman said the agency could not comment on pending litigation. When the program ended, more than 2,700 young people had their conditional approvals to relocate to the U.S. rescinded, according to the complaint. All had left the Northern Triangle, the area in Central America made up of El Salvador, Guatemala and Honduras. The three countries have some of the highest murder rates in the world due to rampant corruption, drug trafficking and gang activity. The complaint asks that the court reinstate those conditional approvals and allow the beneficiaries the opportunity to travel to the U.S. Among the applicants to the program was S.A.'s daughter --identified as J.A. in the complaint -- who had completed every step of the process and was awaiting flight information from the U.S. government when the administration blocked her travel. S.A. has had temporary legal protection in the U.S. since 2001 under a program designed to help citizens of countries experiencing armed conflict or other conditions that prevent them from returning safely. Her abusive husband left while she was pregnant with J.A., their third child, during the country's civil war. She peddled household goods door-to-door in a violence-wracked San Salvador neighborhood to make ends meet. Leaving her children in the care of her father and sister, S.A. immigrated to the U.S. in search of work. Now she sends money twice a month and talks to them almost every day. J.A. was 20 and her son was a year old when S.A. applied to the CAM program on their behalf in August 2015. Her other children, now ages 25 and 27, were too old to qualify. In February 2017 she sent money for their flight reservations — bringing the total she paid to nearly $5,000 — and was told that they'd be able to travel about two weeks after the payment was received. Six months later, S.A. called migration authorities in El Salvador and learned her daughter and grandson would not be allowed to go to the U.S. Other plaintiffs include a teenage girl who was forced to drop out of high school a few months short of her graduation because an MS-13 gang member was trying to forcibly "date" her and she feared she could be raped or killed; a teen boy beaten so badly after refusing to join MS-13 that he required surgery and now uses a cane to walk; and another teen boy whose uncle was shot and killed by MS-13 outside the boy's home. Under the program, applicants were screened in their home countries for refugee resettlement. Even if the applicant didn't meet the specific refugee eligibility criteria, they were automatically considered for renewable parole if the U.S. government determined that they were "at risk of harm." During the time that the program existed, more than 15,000 people applied, according to the State Department. More than 2,100 were resettled as refugees, the government said, meaning they could apply for legal residency after one year. Another 1,500 were allowed in the U.S. as parolees, permitted to remain only as long as their work permits remain active. One such case involves Andrea, a 22-year-old Salvadoran woman who arrived two years ago as a parolee to reunite with her mother after nearly two decades apart. Andrea's work permit expired last month, leaving her and her 4-year-old son Mateo without legal protection. Her mother, Maria, had been caught illegally crossing the border in the Arizona desert in 1998. She spent a month in immigrant detention but later became a beneficiary of Temporary Protected Status. Maria, who now lives in Orange County, said she didn't want her daughter to risk making the same journey through Mexico and entering the country illegally. "I didn't want her to suffer how I suffered," she said. Instead, Andrea was raised by her grandparents in San Salvador. She had all but stopped leaving the house except to go to work as a hair stylist after seeing two dead bodies at a nearby open-air market. "I'll never forget the faces of those people," she said. "I didn't want my son to see that." Andrea, who asked that The Times not reveal her last name out of concern that she could be deported, now works full time cleaning a hotel. In March, she got married and is preparing to file for legal residency through her husband. According to the complaint over the CAM program's ending, some parents took out loans to pay for plane tickets, sometimes with only days notice from migration authorities. Some paid hundreds of dollars to safely transport their children from their hometowns to attend numerous interviews in the capital cities of each country. Parents waited nearly a year for flight reimbursements. The only other costs reimbursed were DNA tests. Many spent extra money on accommodations and new clothes for their children's arrival. After the CAM program was terminated, the International Organization for Migration told applicants who had been conditionally approved for parole -- and all of whom had been deemed ineligible for refugee resettlement -- that they could file a request for review of the denial of refugee status within 90 days. Linda Evarts, an attorney with the International Refugee Assistance Project who represents the plaintiffs, said most haven't heard back. A few months after finding out the CAM program had been terminated, S.A. was diagnosed with breast cancer. Her only relatives in the U.S. are nephews, most of them in other states, and she lamented not having the support of her daughter during surgery and chemotherapy. Meanwhile, J.A. remains in her small hometown three hours from San Salvador. She relies on the money her mother sends to survive. "Her dream was to come here and give her son a better life," her mother said. "All I can hope for is a miracle." [GN] UNITED STATES: Ordered to Streamline Family Reunion Process ----------------------------------------------------------- Nathan Solis, writing for Courthouse News Service, reported that a federal judge on July 10 ordered the Trump administration to streamline its process of reuniting parents and children separated at the U.S.-Mexico border, the same day federal officials said they would comply with a court order to release families -- albeit with GPS ankle monitors. Just four children have been reunited with their parents and 34 more are expected to be reunited by the end of the day, according to court documents filed on July 10 and a status conference in a federal courtroom in San Diego. U.S. District Judge Dana Sabraw focused on a group of 63 parents from a list of 102 children under the age of five in federal custody. Last month, Judge Sabraw ordered all detained children under five to be reunited with their families by July 9, but the government said on July 9 it will miss the deadline. According to the Trump administration, 51 children are eligible to be reunited with parents currently in ICE custody. However, only 34 adults cleared a criminal background and were verified to be parents of the children via DNA testing. Another 16 parents cleared backgrounds checks but DNA tests haven't come back yet, and one parent's criminal background check is pending. Another 12 parents have been deported from the United States and would likely not be reunited by the July 10 deadline, the Trump administration said. Judge Sabraw said 63 could be reunited later in the day if the government made efforts to streamline their process. He included parents who have been released into the United States and but face additional screening under a policy adopted by the Department of Health and Human Services. "These are firm deadlines, not aspirational goals," Judge Sabraw said in court as he made rulings from the bench on how to streamline the process for those reunions. Judge Sabraw ordered requiring DNA cheek swabs to determine parentage only if documents are not available. The federal government said its process to reunify parents and children was taking time due to the Trafficking Victims Protection Reauthorization Act, a federal law passed in 2008 that requires screening children to check if they are victims of human trafficking. But Judge Sabraw called the adherence to that policy in this unique situation "backwards" and unnecessary because the children arrived at the border with their parents, not as unaccompanied minors. He said the government must offer good faith, reasonable explanations when families cannot be reunited due to pending backgrounds checks or criminal history. Judge Sabraw ordered the government to produce a list of children under the age of five who were separated from their families. While the list contained the names of 102 children, Justice Department attorney Sarah Fabian said on July 10 one of the children may be a U.S. citizen and therefore not covered by Judge Sabraw's order. It was unclear how the child became detained by ICE agents. Judge Sabraw said the government's next order of business is to turn over the list of children over five being detained. The government now has two weeks to reunite them with their parents. "That's going to be a significant undertaking," said Judge Sabraw. He also told American Civil Liberties Union attorney Lee Gelernt to notify the court if the government doesn't comply with his orders. Another status conference was set to be held on July 13 to discuss the group of children over the age of 5, which numbers about 2,900. A Justice Department attorney also informed Judge Sabraw that a federal judge's order on July 9 denying the Trump administration's efforts to roll back limits on how long immigrant children can be detained -- limits laid down in a 1997 deal known as the Flores settlement -- means parents will now have to choose whether they want to be in the class of detainees being overseen by Judge Sabraw or if they want Flores settlement rules to apply to them. When asked by Judge Sabraw if the ACLU had any objections, Mr. Gelernt said, "This was our understanding." Meanwhile, multiple news outlets reported on July 10 that parents are being released from detention facilities with GPS ankle monitors pending hearings in immigration court. VAN RU: Placeholder Bid for Class Certification Filed in Wood Suit ------------------------------------------------------------------ In the lawsuit styled ELIZABETH WOOD, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. VAN RU CREDIT CORPORATION, COLONY BRANDS INC., and SILVER STAR BRANDS INC., the Defendants, Case No. 2:18-cv-01056-DEJ (E.D. Wisc.), the Plaintiffs ask the Court for an order certifying classes, appointing the Plaintiffs as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. A copy of the Motion is available from PacerMonitor.com at https://is.gd/M3Z7Jw at no charge. Attorneys for Plaintiff: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. Ademi & O'Reilly, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com VERIZON COMMS: Underpays Wireline Workers, Graczyk et al. Say ------------------------------------------------------------- RODNEY GRACZYK, DON DAVIS and JERRY RIDDLE, for themselves and all others similarly situated, the Plaintiffs, v. VERIZON COMMUNICATIONS, INC. and PS SPLICING, LLC, the Defendants, Case No. 1:18-cv-06465 (S.D.N.Y., July 17, 2018), asserts that Defendants, acting in a joint venture or as joint employers, violated the Fair Labor Standards Act of 1938, the District of Columbia Minimum Wage Act and the District of Columbia Wage Payment and Collection Act by misclassifying replacement wireline workers as independent contractors and failing to pay them required overtime wages. Specifically, rather than pay the required 1.5 overtime premium rate for all time worked over 40 hours per week, Defendants implemented a common scheme to pay Plaintiffs and the Class members at their straight-time rate of pay for all their overtime work in violation of the FLSA and state wage laws. The Defendant entities are inter-related and commonly-controlled businesses that among other things, construct, install and service cable television, telephone, and internet services across the country, including in the District of Columbia. According to the complaint, Verizon Communications, Inc. is responsible for a far reaching "fissured employment" scheme. In order to ensure services to its customers during a union strike, Verizon engaged hundreds of replacement wireline workers -- including the Plaintiffs in this case -- to service copper and fiber cabling used for cable television, telephone and internet. Although Verizon required these workers to perform their work according to Verizon's exacting policies and procedures, Verizon disclaimed any legal relationship with these workers, tagging them instead as "independent contractors" of subordinate entities, including PS Splicing, LLC. But it is the economic reality of the relationship -- not Verizon's self-serving labels -- that controls whether Plaintiffs meet the definition of an "employee" under the FLSA and comparable state wage and hour laws.[BN] Counsel for Plaintiffs and the Putative Collective/Class Members: Jeremiah Frei-Pearson, Esq. Andrew C. White, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: (914) 298 3281 E-mail: jfrei-pearson@fbfglaw.com awhite@fbfglaw.com - and - David J. Cohen, Esq. James B. Zouras, Esq. Ryan F. Stephan, Esq. Andrew Ficzko, Esq. STEPHAN ZOURAS, LLP 604 Spruce Street Philadelphia, PA 19106 Telephone: (215) 873 4836 Facsimile: (312) 233 1560 VOLKSWAGEN AG: 9th Cir. Affirms $10B "Clean Diesel" Settlement -------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's judgment granting Plaintiffs' Motion for Final Approval of the Settlement in the appeals cases captioned IN RE VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, JASON HILL et al., Plaintiffs-Appellees, TORI PARTL; MARCIA WEESE; RUDOLF SODAMIN; GREG R. SIEWERT and SCOTT SIEWERT; RONALD CLARK FLESHMAN, JR.; DEREK R. JOHNSON, Objectors-Appellants, v. VOLKSWAGEN, AG; VOLKSWAGEN GROUP OF AMERICA, INC.; AUDI, AG; AUDI OF AMERICA, LLC; PORSCHE CARS NORTH AMERICA, INC.; ROBERT BOSCH GMBH; ROBERT BOSCH, LLC, Defendants-Appellees, Nos. 16-17157, 16-17158, 16-17166, 16-17168, 16-17183, 16-17185 (9th Cir.). Volkswagen duped half a million Americans into buying cars advertised as clean diesel. They were anything but. As the lawsuits piled up, the car manufacturer hammered out a ten-billion-dollar settlement with a class of consumers, agreeing to fix or buy back the affected vehicles and providing some additional money as well. The proposed class settlement set aside ten billion dollars to fund a suite of remedies for class members. A particular class member's choices depended on whether she owned, leased, or had previously owned, but sold, a vehicle with a defeat device: 1. Owners. Owners had the option to (1) sell the car back to VW at its pre-defeat device value (the buyback option) or (2) have the car fixed, provided Volkswagen could develop an EPA-approved emissions modification. In addition, owners would receive owner restitution. For owners who bought their cars before September 18, 2015 (eligible owners), that was a cash payment of at least $5,100, but possibly more, depending on the value of the vehicle. Owners who acquired their vehicles after that date (eligible new owners) would receive half the eligible owner restitution described above a cash payment of at least $2,550. 2. Lessees. Lessees had the option to (1) terminate their leases without penalty or (2) have the car fixed subject to development of an approved modification. In addition, lessees would receive lessee restitution, a cash payment of $1,529 plus 10% of the vehicle's value. 3. Sellers. Eligible sellers, those who sold their cars after the defeat device scheme became public but before the filing of the settlement with the court in June 2016 would receive seller restitution equal to one-half of full owner restitution (a cash payment of at least $2,550, but possibly more, depending on the value of the vehicle). One month after the proposed settlement was filed with it, the district court granted preliminary approval and ordered extensive notice to the class. Fourteen appeals from the order approving settlement were consolidated with one related appeal. This settlement is highly unusual. Most class members' compensation buybacks, fixes, or lease terminations plus some cash, is as much as, perhaps more than, they could expect to receive in a successful suit litigated to judgment. And not just some of them: the $10.033 billion set aside would fund the most expensive remedy option for every single class member. Class members did not loiter in claiming these benefits. By the time these appeals were briefed, Volkswagen had paid out or committed to pay over $7 billion. And according to the last report from the court-appointed independent claims supervisor, by May 2018 Volkswagen had fixed or removed from the road 85.8% of all affected vehicles; paid out $7.4 billion to over 350,000 class members; and paid out or committed $8.1 billion to almost 450,000 class members. Terming the settlement a "compromise" of claims, although true of most class action settlements, is largely inapt here. The district court so noted, stating that the class members generally "are made whole" by the settlement. The Ninth Circuit holds that the district court adequately explained why the reversion here raises no specter of collusion. First, as the district court noted, Volkswagen has every incentive to "to buy back or fix as many Eligible Vehicles as possible." Under the terms of the DOJ consent decree, if Volkswagen fails to fix or remove from the road 85% of the affected vehicles, it will be fined $85 million for each percentage point it comes up short. Second, from a class member's perspective, the benefits available are quite substantial, worth at least thousands of dollars, and in some cases more, to each class member. Given the amounts at stake, there is little chance class members will forego the benefits because of the effort of lodging a claim. Indeed, the Court needn't speculate as to participation. As of the date of the fairness hearing, 336,000 class members (of 490,000 total) had already registered to claim settlement benefits, and the numbers have only grown. The district court did not abuse its discretion in determining that the reversion clause was a reasonable provision in this settlement, given the incentives to the class to claim quite substantial benefits, and was in no way a sign of collusion or unfairness. To survive appellate review, the district court must show it has explored comprehensively all factors, and must give a reasoned response to all non-frivolous objections. Class member Marcia Weese objected to the settlement on two grounds relevant here. First, she maintained that different claims-processing procedures for class members with liens on their vehicles meant that Rule 23's predominance requirement was not met. Second, and relatedly, she contended that the long-form notice to the class did not adequately explain the effects of a class member's vehicle lien on her eligibility for settlement benefits. In any event, Weese's objections were frivolous, and so did not demand a response from the district court. In three sentences, she argues that additional claims-processing steps for class members with liens create individualized questions of law or fact that defeat predominance under Rule 23. But that objection is faulty on its face. The settlement does not deny recovery to, or exclude from class membership, vehicle owners with liens or loans. It just provides that, because of technical issues raised by the loan or lien as to the vehicle's title, those individuals who still have the same legal claims, based on the same questions of law and fact, as other class members must take additional steps to claim their benefits under the settlement. The district court properly concluded that class members including those with liens asserted the same injury and invoked the same basic legal theories against Volkswagen, thereby satisfying Rule 23(b)(3). Challenges to the notice and timing of fees under Rule 23(h) are typically framed and analyzed as challenges to the fee award, not the settlement. Several objectors contend that the district court misapplied Rule 23 by setting the deadline for class members to object to the settlement before the date by which class counsel had to file a motion for fees. The Court disagrees. A court may award reasonable attorneys' fees in a certified class action Class counsel seeking a fee award must make a motion for fees under Rule 54, and notice of the motion must be directed to class members in a reasonable manner. In sum, approving a settlement before class counsel has filed a fee motion does not violate Rule 23(h). What matters is that class members have a chance to object to the fee motion when it is filed. Here, the district court gave class members six weeks to object to class counsel's completed fee motion, and several of them did so. That period of time was more than enough for class members to object to the motion. Because the scheduling orders did not violate Rule 23(h), they provide no basis for upsetting the settlement. Relatedly, two objectors argue that the district court erred by not ensuring that notice of class counsel's fee motion was directed to class members in a reasonable manner. They do not reach this objection. No matter how construed, it is a challenge to the fee award, not to the district court's order approving the settlement. Unlike the Rule 23(h) argument regarding the scheduling of class counsel's fee motion, the objectors draw no link between the notice of class counsel's fee motion which occurred after the settlement was approved and whether the settlement is fair, reasonable, and adequate. The Court therefore does not pass upon the objection. The Ninth Circuit holds that the district court did not abuse its discretion in certifying the class, approving the settlement, or denying Tori Partl's motion to opt out of the settlement. A full-text copy of the Ninth Circuit's July 9, 2018 Opinion is available at https://tinyurl.com/ycxtkxca from Leagle.com. James Ben Feinman (argued), James B. Feinman & Associates, Lynchburg, Virginia, for Movant-Appellant, Ronald Clark Fleshman, Jr. Sharon Nelles -- nelless@sullcrom.com -- (argued), William B. Monahan -- monahanw@sullcrom.com -- and Robert J. Giuffra Jr. -- giuffrar@sullcrom.com -- Sullivan & Cromwell LLP, New York, New York, for Defendants-Appellants. N. Albert Bacharach Jr. , N. Albert Bacharach Jr. P.A., for Objectors-Appellants Greg R. Siewert and Scott Siewert. Bryan E. Brody , Brody & Cornwell, for Objector-Appellant Tori Partl. Brian Thomas Giles , Giles Lenox, for Objector-Appellant Derek R. Johnson. Stephen D. Field -- steve@field-law.com -- Stephen D. Field P.A., for Objector-Appellant Rudolf Sodamin. Caroline V. Tucker - ctucker@tuckerpollard.com -- Tucker Pollard, for Objector-Appellant Marcia Weese. VOLKSWAGEN: $10-Bil. Diesel Class Action Settlement Upheld ---------------------------------------------------------- Jacqueline Buffa, writing for Jurist, reports that the US Court of Appeals for the Ninth Circuit upheld on July 9 a $10 billion class action settlement against Volkswagen for a 2015 emissions cheating scandal. Volkswagen has admitted [press release] to installing devices in certain models of their diesel vehicles to have them defeat US emissions tests. Anywhere from 10-40 times the legal amount of diesel fumes were being released into the air under normal operating conditions. The action resulted in multiple class action lawsuits with nearly 500,000 people owning the affected vehicles. The lawsuit questioned the certification of the class, the approval of the settlement, and the denial of a class member's motion to opt out. All three points were approved and the settlement stands. [GN] VOLKSWAGEN: Judge Partially Dismissed Exploding Sun Roof Case ------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Volkswagen exploding sunroof class-action lawsuit is hanging on after the automaker filed a motion to dismiss the complaint. Plaintiff Rosaura Deras filed the lawsuit on behalf of consumers who purchased or leased in California any of the following vehicles equipped with factory-installed sunroofs: * 2005-2017 Volkswagen Jetta * 2015-2017 Volkswagen Golf * 2006-2015 Volkswagen GTI * 2009-2010 Volkswagen CC * 2007-2016 Volkswagen Eos * 2006-2009 Volkswagen Rabbit * 2012-2017 Volkswagen Passat * 2004-2006 Volkswagen Touareg * 2011-2017 Volkswagen Touareg * 2008 Volkswagen R32 * 2009-2017 Volkswagen Tiguan According to Ms. Deras, she leased a 2013 Volkswagen Jetta in June 2013 and purchased the vehicle on June 3, 2016, at the end of her lease term. She claims that in 2017 while driving on the freeway, a loud "BOOM" like a gunshot went off in the car, followed by a hail of glass falling on her head and the interior of the Volkswagen. She said she saw a large hole in the center of her sunroof with the edges of the glass pointing upward, indicating the glass wasn't broken from outside the vehicle. The plaintiff said VW has concealed defects in the sunroofs because since Dec. 14, 2009, 57 "owners and lessees of Class Vehicles have reported an incident of their sunroof shattering" to the National Highway Traffic Safety Administration (NHTSA). According to the plaintiff, VW further knew of the defect through its internal tracking systems and because the automaker issued a recall for its 2013--2015 Beetle. The recall was issued "relating to the shattering of sunroofs," but "it has done nothing regarding the far more predominant problem relating to all regular and panoramic sunroof shattering that affects potentially hundreds of thousands or more VW vehicles." Volkswagen moved to dismiss the exploding sunroof class-action lawsuit, starting with implied warranty claims on the grounds they are barred by the four-year statute of limitations. The plaintiff does not dispute that she did not file the lawsuit within four years of the date on which she leased the vehicle. However, she argues that her claim was timely because her June 2016 purchase re-started the statute of limitations clock. The judge agreed. Ms. Deras also claims she can bring an implied warranty claim because Volkswagen sold her the vehicle, but VW argues the lawsuit never mentions where she actually purchased the vehicle. However, the judge ruled the assumption is the vehicle was purchased from the same dealership that leased it. However, according to the judge, VW won the argument about a claim of unjust enrichment by arguing the new vehicle warranty precludes the claim. Concerning the claim that Volkswagen knew about the sunroof problems because of internal monitoring and complaints made to NHTSA, VW says the allegations are not enough to state a claim in court, and the judge agreed. Ms. Deras alleges NHTSA received 57 complaints of shattering sunroofs between Dec. 14, 2009, and April 11, 2017, and that safety regulators monitored the complaints. Of those complaints, 45 were made before Ms. Deras purchased her vehicle on June 3, 2016. But according to the judge, "the Ninth Circuit has held that consumer complaints suffice to establish knowledge only where there were an unusual number of complaints, such that the manufacturer would be on notice of a specific problem." The judge also found the plaintiff contends there are "potentially hundreds of thousands or more of VW vehicles with defective sunroofs, so 57 complaints out of hundreds of thousands of vehicles aren't an unusual number of complaints." "These complaints therefore do not show VW's knowledge of the alleged defect," said Judge Jon S. Tigar. As for the allegation that Volkswagen knew about the alleged shattering sunroofs because of a previous recall related to sunroofs, the judge ruled Ms. Deras has cited no authority, and the judge is aware of none, holding that prior recalls of similar products is enough to establish knowledge of a defect. Therefore, the judge dismissed claims of violations of California's unfair competition law, California Consumer Legal Remedies Act and fraud by omission, but with leave to amend the claims. Overall, the judge dismissed all the claims against Volkswagen except claims related to implied warranties. [GN] WALKERHEALTHCAREIT: Bey Seeks to Certify Class ---------------------------------------------- In the lawsuit entitled DEBRA BEY, individually and on behalf of all others similarly situated, the Plaintiff, v. WALKERHEALTHCAREIT, LLC, WALKERSEARCHGROUP, LLC, ENCORE HEALTH RESOURCES, LLC, TIFFANY WALKER and GREGORY WALKER, the Defendants, Case No. 2:16-cv-01167-GCS-KAJ (S.D. Ohio), the Plaintiff asks the Court for an order to certify class Fair Labor Standards Act Collective Class defined as: "all individuals who currently work, or have worked, for the Defendants as an ATE or any other similarly- titled, hourly-paid position within the State of Ohio at any time from December 13, 2013 through and including the present and until the final resolution of the case." In addition, the Plaintiff asks that the Court order judicial notice to the FLSA Collective Class. As part of this Motion, the Plaintiff moves the Court to order Defendants to produce in electronic format a list of putative class members including information necessary to send the Notice; to order a 90-day period for responding to the Notice; to authorize Plaintiff to distribute the Notice via First Class U.S. Mail and electronic mail; and to send a reminder postcard on or about 30 days before the end of the notice period. A copy of the Motion is available from PacerMonitor.com at https://is.gd/1HlDjW at no charge. Attorneys for Plaintiff: Andrew C. Ficzko, Esq. Ryan F. Stephan, Esq. James B. Zouras, Esq. Andrew C. Ficzko, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233 1550 E-mail: rstephan@stephanzouras.com jzouras@stephanzouras.com aficzko@stephanzouras.com - and - James Papakirk, Esq. FLAGEL & PAPAKIRK, LLC Summit Woods III 50 E Business Way Cincinnati, OH 45241 Telephone: (513) 984 8111 E-mail: jpapakirk@fp-legal.com WILLIS & BROCK: Estes Seeks to Recover Minimum and Overtime Wages ----------------------------------------------------------------- KRISTY ESTES, individually and on behalf of similarly situated persons v. WILLIS & BROCK FOODS, INC. and JESSIE WILLIS, individually, Case No. 6:18-cv-00197-GFVT (E.D. Ky., July 20, 2018), seeks to recover alleged unpaid minimum wages and overtime hours owed to the Plaintiff and similarly situated delivery drivers pursuant to the Fair Labor Standards Act. Willis & Brock Foods, Inc., is a Kentucky corporation. Jessie Willis is an owner, officer and director of the Corporate Defendant. The Defendants operate numerous Papa John's Pizza franchise stores. The Defendants employ delivery drivers, who use their own automobiles to deliver pizza and other food items to their customers.[BN] The Plaintiff is represented by: David O'Brien Suetholz, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 515 Park Avenue Louisville, KY 40208 Telephone: (502) 636-4333 E-mail: davids@bsjfirm.com - and - J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com - and - J. Forester, Esq. Matthew Haynie, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 E-mail: jay@foresterhaynie.com matthew@foresterhaynie.com WILSON PIZZA: Fisher Sues to Recover Minimum and Overtime Wages --------------------------------------------------------------- BENJAMIN FISHER, individually and on behalf of similarly situated persons v. WILSON PIZZA CK INC. and SCOTT WILSON, Case No. 3:18-cv-00479-CRS (W.D. Ky., July 19, 2018), is brought under the Fair Labor Standards Act and the Kentucky Revised Statutes to recover alleged unpaid minimum wages and overtime hours owed to the Plaintiff and similarly situated delivery drivers. Wilson Pizza CK Incorporated is a Kentucky Corporation. Scott Wilson is an owner, officer and director of the Corporate Defendant. The Defendants operate numerous Domino's Pizza franchise stores. The Defendants employ delivery drivers, who use their own automobiles to deliver pizza and other food items to their customers.[BN] The Plaintiff is represented by: David O'Brien Suetholz, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 515 Park Avenue Louisville, KY 40208 Telephone: (502) 636-4333 E-mail: davids@bsjfirm.com - and - J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com - and - J. Forester, Esq. Matthew Haynie, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 E-mail: jay@foresterhaynie.com matthew@foresterhaynie.com [*] AICD Calls on Gov't to Address Class Action Insurance Issues ---------------------------------------------------------------- Patrick Durkin, writing for Australian Financial Review, reports that directors are urging the federal government to rein in insurance cover for companies following an Australian Law Reform Commission report which warns about "peculiar" disclosure laws and an explosion in class actions. The Australian Financial Review revealed on July 9 that insurers are refusing to cover big banks and other financial services companies hit by legal action related to the Hayne royal commission. The directors' and officers' (D&O) insurance sector, which covers directors, executives and employees, has lifted premiums by an average of 70 per cent and up to 400 per cent over the past six months as class actions have increased more than 10-fold over the past decade. The corporate insurance sector has begun to insert "royal commission exclusions" into the class-action defence policies with around 20 open class actions in play including AMP, which is staring down the barrel of five actions over its fee scandal. The CBA is fighting off two class actions relating to its potential lack of disclosure about the AUSTRAC investigation. The Australian Institute of Company Directors said on July 9 it is urging the federal government to take action following the ALRC report. "The AICD backs the ALRC's recommendation for the federal government to review continuous disclosure obligations and misleading and deceptive conduct laws, including how they are impacting the insurance market for class actions," AICD general manager of advocacy Louise Petschler said. "The continued availability of appropriate D&O insurance is essential to a well-functioning corporate governance framework." ASX top-50 chairmen including Lindsay Maxsted, Graham Bradley and Kevin McCann have raised concerns about rising insurance premiums but believe greater regulation of class actions and litigation funders would help tackle the issue. "Very few end up benefiting the class they are supposed to benefit and very few get to court," Westpac chairman Mr Maxsted said. "There is a real risk Australia will follow the path of the US in becoming overly litigious," chairman of EnergyAustralia, GrainCorp and HSBC Bank, Mr Bradley said. "I think a review would be a good idea, but it should look at some constraint on the fees which class action lawyers and advisers can siphon off." Former Macquarie Bank, Origin Energy and Healthscope chairman Kevin McCann said there "needs to be licensing, consumer protections for members of class actions and regulation of fees and rules to deal with the multiplicity of proceedings". Disclosure 'peculiar' The ASX has said it is open to a review of continuous disclosure laws and Andrew Porter, president of the G100 -- which represents major company CFOs -- also warns that insurance premiums are "skyrocketing" for boards in response to more class actions. "Insurance fees will continue to skyrocket as class actions grow and settle out of court," Mr Porter said. "We welcome the idea of a review as a first step. "Every listed company in Australia is now seeing a dramatic increase in D&O liability cover. We have been told by our insurers that it is a direct result of class actions, so there is a cost to shareholders as well as on the company's and directors' time." [GN] [*] Corporations Call for Loosening of Robocall Restrictions ------------------------------------------------------------ AJ Dellinger, writing for Gizmodo, reports that the robocall problem is as bad as it has ever been, but if big corporations have their way, it just might get worse. The Washington Post reported that top businesses from the financial services and retail industry, among others, are lobbying the Trump administration to make it easier to send calls and texts en masse. Per the Post, companies like Capital One, student loan servicer Navient, Sirius XM, and a number of business interest groups have all been on the front-line of the fight, pushing to make sure any crackdown designed to cut back on spam calls won't hurt their own automated systems. Not that you need to be told -- your phone is probably ringing with a bot on the other line right now -- but robocalls have become the scourge of every cellphone owner. YouMail's RoboCall Index estimates that 4.1 billion robocalls were placed to people in the US in June—an average of 12.7 calls received per person. That's the worst month on record, and the fourth month in a row when a new record high has been set. While some of those come from scammers who abuse automated systems -- people like Adrian Abramovich, who the FCC fined $120 million for placing 96 million unsolicited calls in just three months offering fake travel deals -- most robocalls come from legitimate businesses. According to the Post, about three-quarters of the more than four billion robocalls placed in June were telemarketing calls and alerts from companies that consumers have a relationship with. The fact is, companies do use robocalls as a way to contact consumers and sometimes they're actually useful. Automated calls alerting a person that their prescription is available to pick up, for example, seems like a valid use of the technology -- as long as the customer actually consented to the call and the services aren't abused. That has businesses pushing to make sure whatever action is taken to address robocalls won't hurt them. Per the Post, the US Chamber of Commerce has pushed back against the idea of adding any federal rules that would heavily restrict how businesses can communicate with customers. Problem is, businesses are just as guilty of abusing automated systems as anyone. Navient, one of the leaders in lobbying for loosening restrictions on robocalls, has regularly been accused of harassing consumers with automated calls. Navient has been hit with multiple lawsuits over robocalls, and last year consumer groups asked the Federal Communications Commission to look into the company's practices. The student loan servicer isn't alone in getting hit with legal complaints for harassing behavior. Hyundai was subject to a class action lawsuit over robocalls. Companies including Cash Fund, Time Warner, Charter, Dish Network, and loads of other companies. It's unlikely that those abusive practices will suddenly decrease if agencies like the FCC and the Federal Trade Commission decided not to take any additional action to fight back against robocalls. Margot Saunders, a senior attorney at the National Consumer Law Center, told WaPo: "We are at serious risk of seeing the existing robo-call problem, which is already serious, get far, far worse," said Margot Saunders, a senior attorney at the National Consumer Law Center. "If the industry is permitted to send unlimited texts and make unlimited [robo-calls], without the ability of the consumer to say stop, who knows what horrible things will happen?" The last time the FCC tried to implement rules aimed at cutting back on robocalls, they got challenged in court by a trade association of debt collectors and shot down. It's back to the drawing board, but with businesses whispering in the ear of an agency already happy to do the bidding of big corporations, expect that your phone won't stop ringing any time soon. [GN] [*] Increase in Securities Class Actions Hits Businesses, Society ----------------------------------------------------------------- New proprietary data disclosed by Chubb shows a dramatic increase in the cost of insurance claims for merger-objection litigation in recent years. Between 2012 and 2016, the average cost of settled merger-objection claims grew 63% to $4.5 million in 2016 from $2.8 million in 2012. The average for the four-year period was $3.6 million. The portion of total claims payments going to shareholders -- 39% -- was far less than the 61% that flowed to plaintiffs and defense attorneys for fees and expenses. For dismissed merger-objection claims, the average total cost increased 162% to $2.3 million in 2016 from $880,000 in 2012. The average total direct cost was approximately $912,000 for the period. The data from Chubb, which is the global leader in financial lines including directors and officers (D&O) insurance, was revealed in a recent panel discussion featuring four distinguished litigators during the company's annual Preferred Securities Panel Counsel Conference, which was held June 11-12. The panel, entitled From Nuisance to Menace: The Rising Tide of Securities Class Action Litigation, was moderated by Chubb's Scott Meyer, Division President, North America Financial Lines. A replay of the event is available here. "In the world of securities litigation, it seems like common sense and practicality are no longer prevalent when you take into consideration the combined proliferation of class action and merger-objection lawsuits and their associated costs," said Mr. Meyer. "This proliferation is not only impacting businesses but is also manifesting as a total tax on society. In the current environment, businesses are not necessarily better managed, shareholders are not necessarily safer, and the economy as a whole is not necessarily less exposed." "Eighty-five percent of public company merger transactions were challenged" with a merger-objection lawsuit, noted panelist Bruce Vanyo -- bruce@kattenlaw.com -- the head of the Securities Litigation and Enforcement Practice at Katten Muchin Rosenman LLP. "We are being too polite about this. These lawsuits are an abomination. They really are. It's like highway robbery. The only thing missing is the mask and the gun. It is embarrassing that our legal system tolerates it." "Part of the problem here is there are no consequences to the plaintiffs or the plaintiffs' attorneys for filing these frivolous lawsuits," said Gerard G. Pecht -- gerard.pecht@nortonrosefulbright.com -- Global Head of Dispute Resolution and Litigation at Norton Rose Fulbright US LLP. "There is rarely an instance where there is any sort of a sanction or penalty imposed. So you can just generate the lawsuits with a computer, whether they are meritorious or not, and see what happens." Panelist Barry Kaplan -- bkaplan@wsgr.com -- partner and head of the Northwest Litigation Group in the Seattle office of Wilson Sonsini Goodrich & Rosati, talked about the generational shift in the plaintiffs' bar. "We have new entrants now who are bidding for some role in the plaintiffs' securities bar," he said. "Some are focused on mergers and some are focused on less well-grounded stock drop suits. There are some smaller players who are into filing second-tier cases and making a push to become the most prolific filers." Daniel J. Tyukody -- tyukodyd@gtlaw.com -- Co-Chair of the Securities Class Action Practice at Greenberg Traurig LLP, commented on one potential solution. "The biggest effect would be if you had a loser-pay provision, which would certainly eliminate a huge number of these cases," he said. "The real problem we have right now is the number of marginal cases, and we don't have a good filtering mechanism to get rid of them. We all know there are situations where bad stuff happened, and we've got to deal with it. But the biggest cost and tax on the economy is the plethora of very weak cases that still cost hundreds of thousands of dollars or more to get rid of." Among the topics covered in the wide-ranging discussion included the recent Cyan v. Beaver County Employees Retirement Fund Supreme Court decision; whether the U.S. should adopt a loser-pay model; how data breaches impact the D&O litigation landscape; and reforms that could stem the rising tide of litigation. About Chubb Chubb -- http://www.chubb.com-- is the world's largest publicly traded property and casualty insurance company. With operations in 54 countries and territories, Chubb provides commercial and personal property and casualty insurance, personal accident and supplemental health insurance, reinsurance and life insurance to a diverse group of clients. Parent company Chubb Limited is listed on the New York Stock Exchange (NYSE: CB) and is a component of the S&P 500 index. Chubb maintains executive offices in Zurich, New York, London and other locations, and employs approximately 31,000 people worldwide. [GN] [*] Jackson Lewis PC Attorneys Discuss Data Breach Class Actions ---------------------------------------------------------------- Joseph J. Lazzarotti, Esq. -- Joseph.Lazzarotti@jacksonlewis.com -- Jason C. Gavejian, Esq. -- Jason.Gavejian@jacksonlewis.com -- and Maya Atrakchi, Esq. -- Maya.Atrakchi@jacksonlewis.com -- of Jackson Lewis PC, in an article for Lexology, report that a key issue for any business facing class action litigation in response to a data breach is whether the plaintiffs, particularly consumers, will have standing to sue. Standing to sue in a data breach class action suit, largely turns on whether plaintiffs establish that they have suffered an "injury-in-fact" resulting from the data breach. Plaintiffs in data breach class actions are often not able to demonstrate that they have suffered financial or other actual damages resulting from a breach of their personal information. Instead, plaintiffs will allege that a heightened "risk of future harm" such as identity theft or fraudulent charges is enough to establish an "injury-in-fact". Federal circuits court over the past few years have struggled with the question whether plaintiffs in a data breach class action can establish standing if they only allege a heightened "risk of future harm". For example, the 3rd, 6th, 7th, 10th and 11th circuits have generally found standing, while the 1st, 2nd, 4th, 5th, 8th and 9th circuits have generally found no standing where a plaintiff only alleges a heightened "risk of future harm". This circuit court split is in large part to due to lack of clarity following the U.S. Supreme Court's decision in Spokeo, Inc. v. Robins which held that even if a statute has been violated, plaintiffs must demonstrate that an "injury-in-fact" has occurred that is both concrete and particularized, but which failed to clarify whether a "risk of future harm" qualifies as such an injury. California Senate Tackles Issue of Standing in Data Breach Class Action Suits While businesses await the U.S. Supreme Court to address this issue, it looks like the California legislature may take matters into its own hands. Senator Bill Dodd (D.) recently introduced a bill, S.B. 1121 Personal Information (an amendment to the California Customer Records Act) that would allow consumers to sue a business in response to a data breach without any showing of harm at all. The California Senate recently passed the bill in a vote of 22-13, after accepting an amendment from the Assembly to create a safe harbor for businesses that protect consumer's personal data. The bill now moves to the California Assembly that must vote on the bill by August 31st. If the bill passes the Assembly, Governor Jerry Brown will have 30 days to sign or veto the bill. Key Aspects of the S.B. 1121 Personal Information Include: -- Each consumer could recover damages in an amount of not less than $200 and not greater than $1,000 per incident or for actual damages, whichever sum is greater. -- Defines "breach" as "unauthorized access, use, modification, or disclosure of personal information." -- Consumers would have up to 4 years to sue for violation of the California Customer Records Act if their personal information was breached. -- The current California Customer Records narrowly defines "customer" as an individual who provides personal information to a business for the purpose of purchasing or leasing a product or obtaining a service from the business. This bill would instead make those provisions applicable to consumers and consumer records, and define "consumer" for purposes of those provisions broadly to include any natural person. -- A safe harbor for businesses that have implemented and maintained reasonable security procedures and practices appropriate to the nature of the information. Response to Senator Dodd's Bill S.B. 1121 Personal Information if passed would substantially lower (if not eliminate) the standing threshold in data breach consumer class action lawsuits. While consumer groups including the Consumer Attorneys of California, the California Public Interest Research Group, and others have come out in support, business organizations are, strongly opposed to the bill. Opposition includes a coalition of over 70 groups (and growing) including the Senator Dodd in his introduction of S.B. 1121 stressed the importance of providing consumers a measure to sue following a data breach of their personal information, however Senator Dodd has said he is open to amendments of the bill to prevent "a mecca for lawsuits when no harm has been done". Takeaway S.B. 1121 Personal Information is only one example of a wider trend in both the state and federal legislatures attempting to provide greater protection to consumer's personal information, in response to both large-scale breaches, and the E.U.'s General Data Protection Regulation. Recent amendments strengthening state data breach notification laws (e.g. Louisiana, Colorado, Arizona, South Dakota and Alabama) and federal legislative proposals such as the Consumer Privacy Protection Act of 2017 or the Data Security and Breach Notification Act (see our blog post Senate Bill Introduced to Protect Personally Identifiable Information) are further indications of this growing trend. [GN] [*] Most of Supreme Court Brett Kavanaugh's Rulings Pro-Business ---------------------------------------------------------------- Daren Fonda, writing for Barron's, reports that in picking Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, President Donald Trump chose a well-respected conservative jurist who's likely to be quite friendly to business interests and financial firms. Kavanaugh's record suggests he isn't a fan of major bureaucratic rule-making. And he's unlikely to make it easier for class-action lawyers to file suits against big companies. As a judge on the U.S. Court of Appeals for the District of Columbia, Kavanaugh dissented in a major securities fraud case now before the Supreme Court. In Lorenzo v. Securities and Exchange Commission, the D.C. appeals court ruled in favor of allowing a broader interpretation, in some instances, of a rule that prohibits misleading or false statements made by a financial representative (in this case, a broker who sent an email with false information about a clean energy company). Kavanaugh argued for a tighter standard, saying he would "vacate the SEC's conclusions as to both sanctions and liability." Conservatives on the Supreme Court likely share Kavanaugh's views, says Thomas Gorman, a partner at law firm Dorsey and Whitney (which wasn't involved in the Lorenzo case). The case involves two prior decisions by the court, making it likely the justices will reject the SEC's position and potentially scale back its ability to enforce its primary antifraud rule. "With Kavanaugh on the court, it seems almost a lock that Lorenzo will get reversed," Gorman says. The SEC has long sought to expand the scope of liability in fraud enforcement actions because it could ease the burden of proof. The Supreme Court has pushed back, however. Moreover, upholding the D.C. court's ruling would expand the scope of liability in securities class-action suits and broaden the range of targets to encompass more companie -- something the SEC also supports. But that's also unlikely to fly with conservative judges. "If you expand the definition of liability, you can add more people or companies as defendants," Gorman says. "It's a marquee case for the SEC and class-action attorneys. If Kavanaugh is confirmed, it could make a huge difference for class-action suits and for the SEC." The financial-services industry should be pleased with Kavanaugh, too. The industry recently won a big victory when a federal appeals court threw out the so-called fiduciary rule -- a set of regulations on financial advice issued by the Department of Labor under President Barack Obama. The rules would have required financial firms or advisors giving advice on retirement accounts to put clients' interests ahead of their own. The Trump administration never supported the rule, killing a potential appeal to the Supreme Court. The SEC is now working on a rule that would cover advice to investors more broadly, not just for retirement accounts. Kavanaugh wasn't involved in that case, but he has indicated opposition to agency rule-making that would have sweeping industry influence, without clear orders from Congress. "For an agency to issue a major rule, Congress must clearly authorize the agency to do so," he wrote in an unrelated case, according to an editorial in The Wall Street Journal. "If a statute only ambiguously supplies authority for the major rule, the rule is unlawful." Lack of deference to regulatory agencies is a key selling point for conservatives, says Gorman. Trump's last Supreme Court pick, Neil Gorsuch, opposed deference to regulatory agencies, and Kavanaugh appears cut from the same mold. Several other cases already on the docket for the 2018-19 term could impact business interests, including cases involving arbitration agreements, employment discrimination, and intellectual property. Perhaps the biggest case, though, is Apple v. Pepper -- an antitrust case that could have broad impact in Silicon Valley and beyond. Apple (AAPL) was sued in 2011 by iPhone users claiming the company abused its monopoly power to inflate prices on its App Store. Apple charges developers a 30% commission for apps sold through its store, and its iOS operating system prevents consumers from downloading apps outside Apple's store—two practices at issue in the suit. Apple says the plaintiffs don't have a right to sue under U.S. antitrust law, partly because third-party developers set app prices, simply giving Apple a cut as the distributor. The Trump administration, which hasn't always been friendly to Silicon Valley, supported a petition for the Supreme Court to hear the case and likely supports Apple's views, says Adam Feldman, a legal scholar and author of the blog site empiricalscotus.com. As it stands, the Ninth Circuit Court of Appeals sided with consumers. If the Supreme Court upholds the ruling, Apple could owe hundreds of millions of dollars in damages and may have to open its App Store or make other changes to its iOS operating system and relationships with software developers. A ruling against Apple could expose other tech companies that sell third-party products to more class-action suits, including Amazon.com (AMZN), Facebook (FB), and Alphabet (GOOGL). But don't hold your breath for a major anti-Apple ruling. The court is more likely to rule narrowly, says Feldman, continuing its "incrementalist" approach and kicking the broader antitrust issues back to the lower courts. That said, Apple's likelihood of prevailing would get a boost with Kavanaugh on the court, given that he has taken a "pro-business stance" in many cases on the D.C. Circuit, says Feldman. Of course, the ideological lines aren't as clear-cut on business issues as they are on social matters (though they do tend to overlap). Justice Kennedy was unpredictable. He wrote the recent 5-4 opinion that paved the way for states to collect sales taxes from online retailers even if they don't have a physical presence in the state, joining a liberal (Justice Ruth Bader Ginsburg) in the majority. He also joined liberals in upholding a key provision of the Affordable Care Act in 2015, in a 6-3 ruling. But he sided with conservatives in an earlier dissent on the individual health-insurance mandate (an Obamacare provision requiring all individuals to buy insurance). Kavanaugh, who clerked for Kennedy, is a "predictable conservative," says Eric Citron, a Supreme Court attorney in Bethesda, Md., who clerked for Justices Sandra Day O'Connor and Elena Kagan. "In a lot of Kavanaugh's decisions regarding big businesses, he ruled in favor of employers." Citron adds that the court, under Chief Justice John Roberts, has shown an interest in taking more swings at major regulatory and business issues, "dealing with broad strokes of business interests." Taking a higher proportion of such cases indicates the court wants to make an impact on business and financial regulation. Feldman expects Kavanaugh to enhance the pro-business momentum that has been building on the court for years. "We've seen lots of movement by the conservative majority in that direction," he says. "It would be shocking if we see anything else from Kavanaugh." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***