/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180813.mbx C L A S S A C T I O N R E P O R T E R Monday, August 13, 2018, Vol. 20, No. 161 Headlines A AND I MEDICAL: Echelon Refuses to Cover Claims in Saleh Suit ACADIA PHARMA: Robbins Geller Files Class Action ACT II JEWELRY: Menz Appeals Ruling in West Suit to 7th Circuit AGENTRA LLC: Made Unsolicited Calls, Gallion Suit Alleges AIR EVAC: Bid to Move Class Action to County Court Tossed ALAMEDA COUNTY, CA: C. Turano's Suit Dismissed ALLIED INTERSTATE: Obtains Favorable Ruling in FDCPA Class Action ALLTRAN FINANCIAL: Klotsche Files Suit Alleging FDCPA Violation AMERICAN CAMPUS: Settlement in Student Housing Suit Has Final OK ARIZONA: Permanent Injunction Entered in Driver's Licenses Suit AUSTRALIA: Wilsons Creek Residents Sue Over Telstra Tower AVENTURA DANCE: Sued by Fenwick Over Unsolicited Telemarketing BASF SE: Emma Chemicals Alleges Price-Fixing of Diisocyanate BEHR DAYTON: Groundwater Contamination Case Ruling Affirmed BETTA BURGER: Seeks to Hire Bach Law Offices as Attorney CAESARS ENTERTAINMENT: Court Dismisses M. Cabral's ITFA Suit CALIFORNIA TEACHERS: 9th Cir. Denies Bid to Add AAE as Plaintiff CANADA: Faces Class Action Over Orkambi Coverage CANADA: Inmate Sues Over Attorney-Client Privilege Violation CAPITAL MANAGEMENT: Sued by Kupczyk for Illegal Debt Collection CAPITAL ONE AUTO: Scott Suit Alleges Violation of RISA CARRIBEAN CRUISE: Sears Awaits Ruling in Robocall Settlement CAVALRY PORTFOLIO: Obtains Stay in One of Two TCPA Class Actions CHINA AGRITECH: SCOTUS Upholds Dismissal of Successively Filed Suit COCA-COLA CO: 3rd Cir. Affirms Summary Judgment in "Enslin" Suit COLISEUM BAR: Court Conditionally Certifies Class of Employees COMCAST CABLE: Can Send C. Zacher's TCPA Suit to Arbitration COMCAST CABLE: Can't Compel Arbitration of R. Chacon's TCPA Suit CONRAD CREDIT: Debt Collection Violates FDCPA, Hochstasser Says CREDIT MANAGEMENT: Appeals Decision in Bassett Suit to 8th Cir. CREDIT ONE: Can Compel Arbitration of J. Croucier's TCPA Suit DANELL CUSTOM: Billing Records Can Be Filed Partly Under Seal DENKA PERFORMANCE: Removes Butler Suit to E.D. Louisiana DIET WORKS: Faces Fraud Class Action in New Jersey DOLGEN LLC: Partial Summary Judgment Bid in "Fielding" Granted DOWNTOWN TOWING: Petraglia Seeks to Recover OT Pay Under FLSA DR PEPPER: Appeals Cert. Order in Fitzhenry-Russell to 9th Cir. DR PEPPER: Fletcher Sues Over Ginger Ale's Deceptive Labeling EPIC SYSTEMS: Employees May File Individual Unpaid OT Claims ERICSSON INC: J. Nguyen's Wage & Hour Suit Remains in Dist. Court ESTRELLA PROVIDER: Underpays Home Care Providers, Barcena Alleges EVOLUTION WIRELESS: Grey Sues Over Unpaid Minimum, Overtime Wages EXPERIAN INFORMATION: Court Denies Bid to Dismiss FCRA Suit EXPRESS SCRIPTS: Wolfe Seeks to Halt Sale to Cigna FALCON SUBSIDIARY: $595K Settlement in THNs' Suit Has Prelim OK FILTREX SERVICE: Wilson Action Seeks Unpaid Overtime Premium FLUOR CORP: Isenberg Suit Seeks to Recover Wages Under FLSA FOSTER PREMIER: Court Dismisses Suit Over Document Fees FREEDOM FINANCIAL: Can't Arbitrate D. Beerman's TCPA Suit GC SERVICES: Collection Practices Violate FDCPA, Fleenor Claims GILBERT ROZON: To Appeal Sexual Assault Class Action Dismissal GIRARD, OH: Faces Class Action Over Traffic Camera Tickets GOLDEN STATE OVERNIGHT: Quijada Suit Seeks Unpaid Wages GOOGLE LLC: Court Narrows Claims in AdTrader's Suit HEARST COMMUNICATIONS: Settles Class Action for $50MM HODES PARKING: Underpays Valet Workers, Escobar Suit Alleges HOUSTON HOSPITALITY: Doesn't Pay OT to Door Hosts, Shapiro Claims HUAWEI DEVICE: Stay of Nexus 6P Products Liability Suit Lifted INTEREXCHANGE INC: Summary Judgment Bids in Antitrust Suit Junked KINCAID INC: Fails to Pay OT Wages Under FLSA, Portillo Says KNORR-BREMSE AG: Baldassano Sues over No-Poach Agreements KNORR-BREMSE AG: Marietta Files Suit Over No-Poach Conspiracy KOHL'S DEPARTMENT: S. Collins' Wage Suit Moved to E.D. Wis. KUSHNER COS: Judge Allows Tenants' Class Action to Proceed L'OREAL USA: Faces Hubbard Suit Over Use of Consumer Reports LANG PHARMA: Settles Class Action Over Co-Q10 Supplements LOST DOG: Classes in FLSA Suit Have Prelim Certification MARTIN-BROWER CO: Deal in J. Titus' Labor Suit Has Final Approval MASSACHUSETTS MUTUAL: Oct. 25 Settlement Approval Hearing Set MCLANE COMPANY: Magistrate Suggests Dismissal of FCRA Suit MDL 2493: Meloy Appeals Decision in TCPA MDL to 4th Cir. MDL 2665: Court Unseals Class Certification Pleadings MDL 2785: Court Compels Humana to Comply with Subpoena MID PENN: Board of Directors Faces Class Action Over Merger MIDLAND FUNDING: 8th Cir. Partly Reverses Dismissal of FDCPA Suit MIDLAND FUNDING: K. Smith's Suit Remanded to Ark. State Court MONTANA: Court Enters Final Judgment in Prison Conditions Suit MORGANS HOTEL: Faces Luis Seirra Suit in S.D. Florida NESTLE: Court Dismisses Class Action Over Bottled Spring Water NEW ZEALAND: Bella Vista Residents Sue Tauranga City Council NHL: Ex-Players Won't Appeal Class Action Dismissal NUVASIVE INC: Class Settlement in B. Mauss's Suit Has Prelim OK OAKHURST DAIRY: $5MM Settlement in Drivers' Suit Has Final Approval OHIO STATE UNIVERSITY: Sued over Sports Team Doctor's Conduct OHIO STATE: Conducts Investigation Amid Sex Abuse Class Action ORNUA FOODS: Myers-Taylor Files Class Suit Over False Advertising PA FIRE RECOVERY: LaMonaca Suit Asserts FDCPA Violation PAREXEL INT'L: Subpoena on Western in Wage Suit Partly Quashed PARK GROVE: Court Dismisses S. Hullinger's FCRA Suit PETCO ANIMAL: Job Applicants' Class Has Prelim Certification PHOENIX FINANCIAL: Haider Seeks to Recover Damages Under FDCPA PIER 1 IMPORTS: Deal in J. Pedraza's Suit Has Final Approval POLARITYTE INC: Faces Lawi Securities Suit Over Share Price Drop PORTLAND, OR: ACLU Files Class Action Over "Kettling" Tactic PRO CUSTOM: Loses Bid to Dismiss S. Sedhom's Wage Suit PURDUE PHARMA: Court Defers Ruling on Pa. Cities' Bid to Remand QUINN MEDICAL: Must Produce Fax Transmission Logs in TCPA Suit RELIN GOLDSTEIN: Violates FDCPA, Henriquez Suit Says RESPOND POWER: Court Dismisses B. Gillis' Class Claims RIPPLE LABS: Borden Ladner Attorney Discusses Class Action SAKS & CO: Court Grants Final Approval of Class Settlement SANTA FE NATURAL: Pontusson Files Suit Over Deceptive Marketing SCHUMACHER AUTOMOTIVE: Faces Eisenband Suit for TCPA Violation SEARS HOLDINGS: DeFranza Suit Seeks to Stop Unsolicited Calls SEARS ROEBUCK: Faces Bui Suit Over Defective Water Heaters SKYWEST AIRLINES: Underpays Ramp Agents, Barnes Suit Alleges SNOOZE HIC LLC: Doesn't Pay Wages to Servers, Amador-Stewart Says SNYDER LAW FIRM: Court Dismisses K. Toepper's FDCPA Suit SOUTHWEST AIRLINES: Underpays Ramp Supervisors, Battles et al. Say TOLL GLOBAL: C. Marquez's Wage Suit Remains in District Court TOTOTLAN INC: Refuses to Pay Overtime Wages, Hernandez Says TOYOTA MOTOR: 9th Circuit Appeal Filed in Heber Class Suit TRANS1 INC: Nov. 19 Settlement Fairness Hearing Set TRIANGLE CAPITAL: Kent Sues over Barings Merger Deal Disclosures TWENTY-FIRST CENTURY: Faces Gross Suit over Disney Merger UNITED STATES: D.C. Court Grants TRO Against Asylum Seeker Removal UNITED STATES: Sheridan County Vote to Join PILT Class Action UNITEDHEALTHCARE INSURANCE: Wrongfully Denied Healthcare Claims US BANK: Underpays Mortgage Brokers, Loud Suit Alleges WEBSTAURANT STORE: TRO Bid in FLSA Suit Partly Granted WELLS FARGO: Murphy Appeals Ruling in Jabbari Suit to 9th Cir. WHOLE FOODS: Order for Interlocutory Appeal in "Molock" Certified WISCONSIN: Settlement in Juvenile Inmates' Suit Has Prelim Approval ZICAM LLC: Oct. 3 Class Action Settlement Claims Filing Deadline ZIMMER BIOMET: Underpays Sales Associate, Karl Suit Alleges [*] Ballard Spahr Attorneys Discuss FDCPA Class Action [*] US-Style Class Action Procedure on the Cards for Scotland ********* A AND I MEDICAL: Echelon Refuses to Cover Claims in Saleh Suit -------------------------------------------------------------- ECHELON PROPERTY & CASUALTY INSURANCE COMPANY v. A AND I MEDICAL TRANSPORTATION, INC., and IZZLDIN SALEH, IBRAHIM TAWALBEH and ELIZABETH MCKITTRICK, Case No. 2018CH08661 (Ill. Cir. Ct., Cook Cty., July 11, 2018), alleges that an underlying class action lawsuit is not covered by a certain policy and that Echelon has no duty to defend Defendants A&I, Ibrahim Tawalbeh and Elizabeth McKittrick. Echelon is a duly authorized Illinois insurance company doing business in the state of Illinois, and was licensed to write policies of liability insurance in Illinois. Echelon issued policy No. EGL0007041 to named insured A&I for the policy period March 5, 2017, to March 5, 2018. The Policy has a $1 million per occurrence and general aggregate limit. A&I is an Illinois corporation with its headquarters in the City of Palos Hills, County of Cook, Illinois. A&I provides medical transportation for patients across Chicagoland. Ibrahim Tawalbeh is one of the owners of A&I. Elizabeth McKittrick is the President of A&I. Izzldin Saleh (the "Underlying Plaintiff") is a resident of the state of Illinois and the plaintiff in an underlying case and is a necessary but nominal party to this action. Mr. Saleh, on behalf of himself and all other similarly situated persons, filed suit against A&I, Tawalbeh and Mckittrick, in the United States District Court for the Northern District of Illinois (the "Lawsuit"). The Lawsuit is captioned "Complaint for Wage Theft and Retaliatory Discharge." Echelon denied that the Lawsuit was covered under the Policy and denied that Defendants were entitled to a defense or indemnification under the Policy with respect to the Lawsuit.[BN] The Plaintiff is represented by: David E. Schroeder, Esq. TRIBLER ORPETT & MEYER, P.C. 225 West Washington, Suite 2550 Chicago, IL 60606 Telephone: (312) 201-6400 E-mail: deschroeder@tribler.com ACADIA PHARMA: Robbins Geller Files Class Action ------------------------------------------------ Robbins Geller Rudman & Dowd LLP on July 24 disclosed that a class action has been commenced on behalf of purchasers of ACADIA Pharmaceuticals Inc. (NASDAQ:ACAD) securities during the period between April 29, 2016 and July 9, 2018 (the "Class Period"). This action was filed in the Southern District of California and is captioned Stone v. ACADIA Pharmaceuticals Inc., et al., No. 18-cv-01672. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased ACADIA securities during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from July 20, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/acadiapharm/. The complaint charges ACADIA and certain of its officers with violations of the Securities Exchange Act of 1934. ACADIA is a biopharmaceutical company focused on the development and commercialization of innovative medicines to address unmet medical needs in central nervous system disorders. ACADIA's product opportunities include its novel drug NUPLAZID (pimavanserin), which was approved by the U.S. Food and Drug Administration ("FDA") on April 29, 2016 for the treatment of hallucinations and delusions associated with Parkinson's disease psychosis. NUPLAZID became available in the United States in May 2016. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding ACADIA's business and prospects, including that medical professionals had expressed significant concern that NUPLAZID had been approved too quickly, based on inadequate evidence that the drug was safe or effective, and that a large number of adverse events had been reported to the FDA for patients who were using NUPLAZID. As a result of defendants' false statements and/or omissions, ACADIA securities traded at artificially inflated prices during the Class Period. On April 9, 2018, CNN issued a report claiming that medical professionals, including physicians, researchers and other experts, had expressed significant concern that NUPLAZID was approved too quickly, based on inadequate evidence that the drug was safe or effective. The CNN report also called attention to a large number of adverse events (often deaths) reported to the FDA for patients who were using NUPLAZID. On this news, the Company's share price declined $5.03 per share, or 23.4%, to close at $16.50 per share on April 9, 2018. On April 25, 2018, CNN reported that the FDA was re-examining the safety of NUPLAZID. On this news, the Company's share price fell $4.27 per share, or 21.9%, to close at $15.20 per share on April 25, 2018. Then, on July 9, 2018, the Southern Investigative Reporting Foundation issued a report, entitled "Acadia Pharmaceuticals: This Is Not a Pharmaceuticals Company," alleging that ACADIA "has accomplished its growth in ways that have attracted intense regulatory scrutiny for other drug companies," including "dispensing wads of cash to doctors to incentivize prescription writing and downplaying mounting reports of patient deaths." On this news, the Company's share price again dropped $1.21 per share, or 6.8%, to close at $16.63 per share on July 9, 2018. Plaintiff seeks to recover damages on behalf of all purchasers of ACADIA securities during the Class Period (the "Class"). Robbins Geller -- http://www.rgrdlaw.com-- is one of the world's leading law firms representing investors in securities litigation. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For five consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. [GN] ACT II JEWELRY: Menz Appeals Ruling in West Suit to 7th Circuit --------------------------------------------------------------- Cara Menz filed an appeal from a court ruling in the lawsuit titled CYNTHIA WEST, et al. v. ACT II JEWELRY, LLC d/b/a LIA SOPHIA, et al., Case No. 1:15-cv-05569, in the U.S. District Court for the Northern District of Illinois, Eastern Division. As previously reported in the Class Action Reporter, the Plaintiffs purchased pieces of jewelry from Lia Sophia for personal use. The Plaintiffs contend that although Lia Sophia continues to operate its business in an on-line e-commerce operation, Lia Sophia refuses to honor the Lifetime Guarantee. The Plaintiffs also contend that Lia Sophia induced its Sales Advisors to continue to sell and purchase additional products and to recruit other Sales Advisors during 2014, when Lia Sophia allegedly knew that it was not going to honor the Lifetime Guarantee. The Plaintiffs include in their complaint breach of contract claims brought by Hollander against Lia Sophia and KEC (Count I), claims brought under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) brought by Hollander (Count II), state law common law fraud claims brought by Hollander (Count III), unjust enrichment claims brought by Hollander (Count IV), ICFA claims brought by West (Count V), state law common law fraud claims brought by West (Count VI), and unjust enrichment claims brought by West (Count VII). The appellate case is captioned as Cynthia West, et al. v. Cara Menz, et al., Case No. 18-2502, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case states that the Appellant's brief is due on or before August 20, 2018, for Cara Menz. Appellant CARA MENZ, of Redwood Falls, Minnesota, appears pro se.[BN] Plaintiffs-Appellees CYNTHIA WEST, KRISTINE HOLLANDER, JENNIFER ZIMMERMAN, MARY ROMAN and MARIE ESPOSITO, individually and on behalf of all others similarly situated, are represented by: Joseph Siprut, Esq. SIPRUT PC 17 N. State Street Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 546-9963 E-mail: jsiprut@siprut.com Defendants-Appellees ACT II JEWELRY, LLC, a Delaware limited liability corporation d/b/a LIA SOPHIA, and VICTOR K. KIAM, III, are represented by: Eric Samore, Esq. SMITHAMUNDSEN, LLC 150 N. Michigan Avenue Chicago, IL 60601-7621 Telephone: (312) 894-3200 E-mail: esamore@salawus.com AGENTRA LLC: Made Unsolicited Calls, Gallion Suit Alleges --------------------------------------------------------- STEVE GALLION, individually and on behalf of all others similarly situated, Plaintiff v. AGENTRA, LLC, and Does 1 through 10, Defendants, Case No. 5:18-cv-01487-PSG-SHK (C.D. Cal., July 13, 2018) alleges that the Defendants made unsolicited calls in violation of the Telephone Consumer Protection Act. Agentra, LLC operates as an insurance agent. It offers life and health insurance products. The company was incorporated in 2010 and is based in Plano, Texas. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 877-206-4741 Facsimile: 866-633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com AIR EVAC: Bid to Move Class Action to County Court Tossed --------------------------------------------------------- Joyce Hanson, writing for Law360, reports that a West Virginia federal judge rejected on July 23 a proposed class's bid to move to county court a lawsuit alleging that Air Evac EMS Inc. overcharged for transporting medical patients, ruling that the air ambulance company met its burden to establish jurisdiction under the U.S. Class Action Fairness Act. Senior U.S. District Judge Frederick P. Stamp Jr. said the breach-of-implied-contract suit led by named plaintiff Troy Chanze Sr., a patient transported by Air Evac to a West Virginia hospital, can stay in federal court. [GN] ALAMEDA COUNTY, CA: C. Turano's Suit Dismissed ---------------------------------------------- In the case, CYNTHIA N. TURANO, Plaintiff, v. COUNTY OF ALAMEDA, et al., Defendants, Case No. 17-cv-06953-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California (i) granted Oakland Defendants' motion to dismiss, (ii) granted Alameda Defendants' motion to dismiss, and (iii) denied the Plaintiff's motion for leave to amend. On Dec. 5, 2017, Turano filed the instant class action, bringing constitutional and various state claims related to her experience while in the custody of Defendant Alameda County Sheriff's Office. The Plaintiff also brought an individual action based on wrongful arrest by Defendant Oakland Police Department. On Dec. 25, 2016, at 1:21 p.m., the Plaintiff's husband, Edward J. Turano, called the Oakland Police Department, claiming that the Plaintiff had violated a temporary restraining order by taking a camera that he stated belonged to him. Mr. Turano stated that the Plaintiff still resided in the house, and did not report any physical contact or violence. On Dec. 26, 2016, around 1:00 a.m., Defendants Duran, Adaya, and Tloyao responded to Mr. Turano's call. The officers interviewed Mr. Turano, who asserted that he was being harassed by the Plaintiff, that the Plaintiff had used his camera without permission that afternoon, and that the Plaintiff had violated a domestic violence restraining order by coming within three feet of him. The officers were informed that the camera had been returned by 2:30 p.m. At the time of the officers' arrival, the Plaintiff was asleep in her bedroom. The officers woke the Plaintiff up, handcuffed her, and arrested her for violating the restraining order. The Plaintiff was taken to Santa Rita Jail, where she was transferred into the custody of Defendant Alameda County Sheriff's Office. Around 9:30 a.m., the Plaintiff was discharged, and she was given a bus ticket and BART ticket. Prior to her discharge, the Plaintiff never saw the cells cleaned. She took public transportation back in her wet, visibly blood-stained clothing. On Dec. 5, 2017, the Plaintiff filed the instant suit. On Jan. 21, 2018, she filed her first amended complaint, asserting the following claims: (1) violation of the Eighth Amendment prohibition against cruel and unusual punishment; (2) violation of the Fourteenth Amendment's equal protection clause; (3) violation of the Fourth Amendment right to be free from unreasonable search and seizure; (4) false imprisonment; (5) the California Bane Act; and (6) negligence. The third, fourth, and fifth claims are brought against the Oakland Defendants only; although not clear, it appears the first and second claims are brought against the Alameda Defendants only, as they concern allegations related to when the Plaintiff was in Santa Rita jail. The negligence claim is brought against both the Oakland Defendants and Alameda Defendants. Additionally, again while it is unclear, it appears that the first, second, and possibly sixth claim (with respect to the Alameda Defendants) are brought as a class action, on behalf of all female arrestees placed in the custody of the Alameda County Sheriff's Office from Dec. 26, 2016 to the filing date of the lawsuit. Notably, the Plaintiff asserts in her lawsuit that approximately six months prior to the Dec. 25, 2016 event, Defendants County of Alameda and Alameda County Sheriff's Office settled a case with "similar allegations" regarding the conditions of confinement and failure to provide feminine hygiene products. The Defendants purportedly agreed to adopt policies and practices to remedy the complaints. The Plaintiff did not, however, explain what these agreed to policies and practices entailed. Pending before the Court are: (1) the motion to dismiss filed by Defendants City of Oakland, Oakland Police Department, J. Adaya, J. Durant, and Ryan Paul Tloyao ("Oakland Defendants"); (2) the motion to dismiss filed by Defendants County of Alameda and Alameda County Sheriff's office, Gregory J. Ahren, Brett Keteles, Tom Madigan, and D. Skoldqvist ("Alameda Defendants"); and (3) the Plaintiff's motion for leave to amend the complaint. With respect to Oakland Defendants' motion to dismiss, Magistrate Judge Westmore finds that the Fourth Amendment and false imprisonment claims must be dismissed because, as alleged, there was probable cause to arrest. She also finds that further amendment is futile. Even if the Plaintiff asserts that she did not, in fact, violate the restraining order and that the officers did not see her do so, such allegations are insufficient to show no probable cause in light of Mr. Turano's statement to the police that the Plaintiff did violate the restraining order, thus triggering the requirement to arrest per California Penal Code Section 836(c)(1). She therefore finds that leave to amend is not appropriate. For the same reasons the Section 1983 claims must be dismissed, so must the Bane Act claim. As she has discussed, the operative complaint fails to allege an unlawful arrest or false imprisonment claim because, as pled, the Oakland Defendants had probable cause to arrest Plaintiff for violating the restraining order. Thus, the Plaintiff has failed to establish that there was interference or attempted interference with a state or federal constitutional or legal right. Because the Plaintiff has failed to establish a Fourth Amendment violation or false imprisonment claim because she cannot demonstrate that her arrest was made without probable cause, and the City of Oakland is not responsible for the conditions of Plaintiff's jail cell, the Judge dismissed without leave to amend the negligence claim. The Judge finds that the Plaintiff cannot amend the complaint to establish that the Oakland Defendants lacked probable cause to arrest. As all of her claims against the Oakland Defendants are based on her arrest, the Magistrate Judge concludes that amendment is futile. Therefore, she denied the Plaintiff's motion to amend. As to Alameda Defendants' motion to dismiss, the Magistrate Judge finds that (i) the Plaintiff is not required to plead facts demonstrating subjective intent to punish; (ii) the Plaintiff has adequately alleged a Fourteenth Amendment cruel and unusual punishment claim based on conditions of confinement; (iii) the Plaintiff has failed to allege any facts demonstrating that the Alameda Defendants acted with discriminatory intent; (iv) the Plaintiff fails to give the Alameda Defendants sufficient notice of what specific facts her negligence claim is based on; and (v) the Plaintiff has failed to adequately plead Monell liability. Plaintiff, however, is given leave to amend but is given leave to amend. Finally, the Alameda Defendants argue that they have immunity against the Plaintiff's negligence claim under various provisions of the California Government Code. The Magistrate Judge says she needs not decide this issue because the Plaintiff's negligence claim is not adequately pled and must be dismissed for that reason. For the reasons she stated, Magistrate Judge Westmore (i) granted Oakland Defendants' motion to dismiss without leave to amend; (ii) denied the Plaintiff's motion to amend -- which was directed only at the claims against the Oakland Defendants -- because amendment is futile; and (iii) granted Alameda Defendants' motion to dismiss with leave to amend. While the Plaintiff has pled sufficient facts for a Fourteenth Amendment conditions of confinement claim, she has not sufficiently pled facts establishing liability as to any of the named Defendants. The Plaintiff may file an amended complaint within 30 days of the date of the Order, consistent with the Order. A full-text copy of the Court's June 20, 2018 Order is available at https://bit.ly/2LNrp90 from Leagle.com. Cynthia N Turano, Plaintiff, represented by Yolanda Huang -- yhuang.law@gmail.com -- Attorney at Law. County of Alameda, Alameda County Sheriff's Office, Gregory J. Ahern, Brett Keteles, Tom Madigan & D Skoldqvist, Defendants, represented by Gregory B. Thomas -- gthomas@bjg.com -- Boornazian, Jensen Garthe. City Of Oakland, J Durant, J Adaya & Ryan Paul Tloyao, Defendants, represented by Colin Troy Bowen -- cbowen@oaklandcityattorney.org -- Oakland City Attorney Litigation, Jamilah A. Jefferson -- jamilah.jefferson@stanfordalumni.org -- Oakland City Attorney's Office & Otis McGee, Jr. -- mcgeejr@oaklandcityattorney.org -- Oakland City Attorney. Oakland Police Department, Defendant, represented by Colin Troy Bowen, Oakland City Attorney Litigation & Otis McGee, Jr., Oakland City Attorney. ALLIED INTERSTATE: Obtains Favorable Ruling in FDCPA Class Action ----------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that you have to give creativity points to Reed Smith, defense counsel for a debt collection outfit called Allied Interstate. After the U.S. Supreme Court and 2nd U.S. Circuit Court of Appeals stymied Allied's strategy to end a 2013 Fair Debt Collection Practices Act class action by paying the lead plaintiff his full potential damages, Reed Smith came up with an alternative argument: The plaintiff's refusal to accept Allied's offer made him an unsuitable candidate to lead the class action because he's not a typical class member. His "unique circumstances as the only member of the putative class to have been compensated for his claim have irreparably compromised his role as lead plaintiff in this litigation," Reed Smith argued in a brief opposing class certification. Somehow, U.S. District Judge Katherine Forrest of Manhattan bought it. Earlier in July, Judge Forrest denied lead plaintiff Gilberto Franco's motion for class certification. The judge said Mr. Franco hadn't explained why he rejected Allied's offer, leaving her with doubts about his ability to represent the interests of the class. "Absent a factual record from plaintiff setting forth his rationale and expected conduct in light of past behavior, the court is left with the distinct possibilities that: (1) this litigation is entirely lawyer-driven; and/or (2) that while the claims plaintiff has asserted would be satisfied by monetary relief, this particular plaintiff does not plan on agreeing to a monetary settlement," Judge Forrest wrote. "If plaintiff is willing to forgo recovery on his own behalf, there is no telling how many potential class members he is willing to prejudice for the 'greater good.' Assuming for the moment that there are 1,000 potential class members, would plaintiff (and his counsel) accept an offer that makes 750 of those class members whole? How about 500? And what if the proposed offer made all class members whole, but did not provide for attorneys' fees and costs?" The judge rejected arguments by Mr. Franco's lawyers at Stern Thomasson that Allied's strategy was a gimmick that "would permit all defendants to unilaterally make class actions impossible by simply mailing a check for a paltry sum and avoid class liability and significantly higher amounts of class damages." Judge Forrest discounted that concern, calling it "speculative" and "not based in any facts tethered to this case." "I don't think it's so speculative -- and lawyers at Stern Thomasson don't either. On July 24, Andrew Thomasson told me his client will be filing a request for interlocutory appeal at the 2nd Circuit," Ms. Frankel said. "I hope the appeals court allows it. The facts of this particular case are idiosyncratic, and clearly Judge Forrest thought there was reason to question the motives of the named plaintiff and his lawyers. But her reasoning give class action defendants a way to kill class actions using a variation of the technique shot down in the Supreme Court's 2016 decision in Campbell-Ewald v. Gomez. Already, a TCPA class action defendant, ZocDoc, has cited Judge Forrest's decision in a 2nd Circuit appeal of class certification. If the judge's Allied decision stands, ZocDoc will be the first in a long line." The Allied class action actually predates the Supreme Court's Campbell-Ewald case. It was filed back in June 2013. A few months later, using a then-common defense tactic to end class actions by offering full judgments to lead plaintiffs, Allied said it would pay Gilberto Franco $1,501, plus reasonable fees. After he rejected the offer, Allied argued its offer had mooted the case. Judge Forrest dismissed the class action in 2014. The 2nd Circuit revived it in 2015, holding that Franco's claim was not mooted by Allied's offer because there was no entry of judgment against the debt collector. Allied went back to the drawing board and proposed that Judge Forrest enter a $1,501 judgment for Franco and then dismiss the case. (Allied's filing came on the same day the 2nd Circuit issued its mandate.) She obliged in November 2015. Mr. Franco's lawyers went back to the 2nd Circuit. While the appeals court had the case, the Supreme Court ruled in Campbell-Ewald that an unaccepted offer of judgment to a lead class action plaintiff does not moot the case, which remains alive as long as the plaintiff has "a concrete interest, however small, in the litigation's outcome." The Supreme Court left open the possibility that a case might be mooted if a class action defendant actually tendered payment to a recalcitrant lead plaintiff but the 2nd Circuit slammed that door shut in 2017's Geismann v. ZocDoc. Under Campbell-Ewald and Geismann precedent, the 2nd Circuit said in a summary order last April, Franco's claims are not moot. "Allied Interstate's attempts to circumvent this clear precedent are unavailing," the court said. "We see no meritorious grounds for distinguishing Geismann." With the class action revived for a second time, Allied's lawyers at Reed Smith came up with the new argument that the class couldn't be certified because Mr. Franco doesn't represent classwide interests. As if to drive that point home, the defendant actually sent a check for more than $2,750 to Mr. Franco's lawyers. "This amount is almost triple what plaintiff could have hoped to recover on his individual claim," Allied argued. "Regardless of whether this event moots plaintiff's claim as a matter of law, the fact remains that plaintiff claim has been fully compensated. This economic reality demonstrates that plaintiff -- who has been compensated in excess of the amount of his claim -- is neither a typical nor an adequate representative of the putative class, which may contain members who have not been so compensated. Mr. Franco's unique circumstances as the only member of the putative class to have been compensated for his claim have irreparably compromised his role as lead plaintiff in this litigation." Mr. Franco's lawyers, who pointed out that they refused to accept Allied's check, said nothing about the case required an individual inquiry. In an accompanying declaration, Franco lawyer Andrew Thomasson said, among other things, that Allied's offer didn't satisfy Mr. Franco's claim because it did not include any classwide relief or fees and costs for plaintiffs' counsel. (Class lawyers in the Campbell-Ewald case at the Supreme Court made the same argument.) In addition, Stern Thomasson asked Judge Forrest for permission to supplement the record if she had additional questions about Franco's suitability. "Instead, Judge Forrest denied class certification because, she ruled, Franco hadn't explained his motive for refusing Allied's offer. I haven't previously seen a judge call on a prospective lead plaintiff to explain the decision not to accept a settlement offer, and, frankly, I'm not sure that a plaintiff could offer an explanation, assuming he or she consulted with lawyers on the offer, without compromising attorney-client privilege," Ms. Frankel said. The judge ordered Allied and Franco to propose a schedule for the resolution of Franco's individual claims, which raises additional complication about Franco's standing to appeal Judge Forrest's class certification ruling if the 2nd Circuit declines to grant an interlocutory appeal. That's all the more reason for the appeals court to take this case now. Ms. Frankel emailed Allied counsel Casey Laffey of Reed Smith but didn't hear back. [GN] ALLTRAN FINANCIAL: Klotsche Files Suit Alleging FDCPA Violation --------------------------------------------------------------- LAUREN A. KLOTSCHE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED v. ALLTRAN FINANCIAL, LP, Case No. 2:18-cv-04008-SJF-ARL (E.D.N.Y., July 12, 2018), alleges that the Defendant's debt collection letters violate the Fair Debt Collection Practices Act. Alltran is a Texas Limited Partnership and a New York Foreign Limited Partnership. Alltran possesses a license from the New York City Department of Consumer Affairs to operate as a "Debt Collection Agency."[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Suite 255 Huntington, NY 11743 Telephone: (631) 335-1107 E-mail: mpash@verizon.net AMERICAN CAMPUS: Settlement in Student Housing Suit Has Final OK ---------------------------------------------------------------- In the case, BRIAN FELLOWS, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. AMERICAN CAMPUS COMMUNITIES SERVICES, INC., et al., Defendants, Case No. 4:16-cv-01611-JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiff's motion for final approval of the proposed class action settlement, and for an award of attorneys' fees and expenses for the Class Counsel. Fellows brings the case on behalf of a class of all those similarly situated with respect to the Defendants' alleged marketing practices with respect to their student-focused housing located in Columbia, Missouri. The Plaintiff's case stems from the Defendants' alleged conduct in the marketing of their lease rates for their apartment units. Specifically, the Plaintiff alleges that the Defendants advertised "monthly" lease rates for their apartment units that are lower than the actual monthly rate charged to their student tenants in their lease agreements. He alleged this marketing was deceptive, and asserted claims pursuant to the Missouri Merchandising Practices Act, and for unjust enrichment. In the wake of the filing of the case, the Defendants changed the manner in which their market their properties, replacing the "monthly" verbiage to instead refer to "installment" payments. The proposed Settlement's details are contained in the Notice of Settlement signed by the parties, which was submitted to the Court on Jan. 30, 2018, and incorporated into the Court's Preliminary Approval Orders. The Settlement Class is defined as any and all persons who entered into a residential lease with ACC (collectively and individually, the Defendants and all of their respective past, present, and future affiliates, parents, subsidiaries, sister companies, and all of their respective past, present and future officials, agents, employees, representatives, shareholders, partners, members, directors, officers, insurers, reinsurers, predecessors, successors, heirs, assigns, and attorneys) for housing located in the State of Missouri where: (1) the lease contract was not based on a standard calendar month occupancy, (2) the person paid ACC the full monthly advertised rate for the first month when occupancy began (and the eleven subsequent months), and (3) the person was not permitted to occupy some portion of the first month when occupancy began without paying an additional amount to do so but nonetheless paid rent at the advertised monthly rate. The Settlement Class will refer to persons who entered into this new lease who occupied the property after Nov. 1, 20121 through the date that ACC sold the properties on Nov. 15, 2016. The Court previously preliminarily approved the Settlement of the action on behalf of a Class on Feb. 2, 2018, which approval was later amended on March 6, 2018. The Notice issued per the Notice Plan approved by the Court, and the Class Members were afforded the opportunity to submit claims, opt out of the Settlement, or object to the Settlement. The matter now comes before the Court for final approval and for approval of attorneys' fees and a service award for the Class Representative. Judge Ross finds that the settlement is fair, reasonable, and in the best interests of the Class. He further finds that the Class, which was preliminarily certified for settlement purposes, should now be finally certified for Settlement. Finally, he concludes that the award of attorneys' fees and costs in the amount of $125,000 is appropriate, and that the Service Award of $5,000 is appropriate. Consistent with the foregoing, Judge Ross approved the Settlement. He granted the Plaintiff's motion for final approval of class action settlement and motion for attorneys' fees. The Defendant will pay $275,000 into a fund for the benefit of the Class. Signal Interactive Media, LLC will distribute the Settlement proceeds consistent with the Settlement Agreement. The Defendant will also pay $125,000 to the Class Counsel as attorneys' fees and costs, and $5,000 to the Class Representative Brian Fellows as a Service Award. All payments due to be made by the Defendant pursuant to the Settlement Agreement will be made within 30 days of the Order. The matter is dismissed with prejudice; and the Clerk is directed to enter judgment consistent with the foregoing. A full-text copy of the Court's June 20, 2018 Memorandum and Order is available at https://bit.ly/2vazpGL from Leagle.com. Brian Fellows, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by James J. Rosemergy, CAREY AND DANIS & Jeffrey J. Lowe -- jlowe@careydanis.com -- CAREY AND DANIS. American Campus Communities Services, Inc., Defendant, represented by Deborah J. Campbell -- deborah.campbell@dentons.com -- DENTONS US LLP, Leanna Marie Anderson -- leanna.anderson@dentons.com -- DENTONS US LLP & Alice Marie Aten -- alice.aten@dentons.com -- DENTONS US LLP. ARIZONA: Permanent Injunction Entered in Driver's Licenses Suit --------------------------------------------------------------- In the case, Lucrecia Rivas Valenzuela, et al., Plaintiffs, v. Doug Ducey, et al., Defendants, Case No. CV-16-03072-PHX-DGC (D. Ariz.), Judge David G. Campbell of the U.S. District Court for the Distirct of Arizona (i) denied the Defendants' motion to amend the class definition; (ii) granted the Defendants' motion for summary judgment on behalf of Gov. Ducey; (iii) granted the Plaintiffs' motion for summary judgment; (iv) granted the Plaintiffs' motion to seal; and (v) entered a permanent injunction. The class action challenges Arizona's policy of denying driver's licenses, or requiring additional documentation before issuing licenses, to noncitizens with federally issued Employment Authorization Documents ("EADs") containing the code "(c)(14)." On Dec. 6, 2017, the Court certified the class, under Rule 23(b)(2) of the Federal Rules of Civil Procedure, of all noncitizens holding (EADs) coded (c)(14) who are being denied or will be denied the ability to present their EADs alone as sufficient proof of federally authorized presence in order to obtain an Arizona driver's license, as a result of the Defendants' 2013 and 2017 policies and related practices pursuant to Executive Order 2012-06, Arizona Department of Transportation ("ADOT") Policy 16.1.4, and ADOT Policy 16.1.4's implementation. The Defendants have filed a motion to amend the class definition, and the parties have filed cross-motions for summary judgment. The Court heard oral argument on June 13, 2018. The Defendants seek to narrow the class definition to (c)(14) EAD holders who are Violence Against Women Act ("VAWA") derivative beneficiaries and Unonimmigrant visa ("U-visa") applicants. They argue that including all (c)(14) EAD holders in the class is improper because they are not all treated alike. The named Plaintiffs may obtain licenses by providing additional documents, but, the Defendants assert, other (c)(14) EAD holders cannot obtain licenses. The Defendants argue that the named Plaintiffs cannot represent these other (c)(14) holders because they suffer a distinct injury. They ask the Court to modify the class definition by adding the following italicized language: All noncitizens holding (EADs) coded (c)(14) by receiving relief under either the VAWA or U-visa programs who are being denied or will be denied the ability to present their EADs alone as sufficient proof of federally authorized presence in order to obtain an Arizona driver's license, as a result of the Defendants' 2013 and 2017 policies and related practices pursuant to Executive Order 2012-06, ADOT Policy 16.1.4, and ADOT Policy 16.1.4's implementation. Judge Campbell will deny the Defendants' motion to amend the class definition. He finds that as persons subject to the challenged policy, the named Plaintiffs have claims typical of the class despite the differing bases under which each class member obtained a (c)(14) EAD. There is no conflict among class members' interests, and no one disputes the qualifications of the Plaintiffs' counsel. A class under Rule 23(b)(2) is appropriate because the Plaintiffs seek uniform relief from a practice applicable to all of them, and a single injunction or declaratory judgment would provide relief to each member of the class. The Judge also cannot conclude that changes based on litigation tactics provide a legitimate ground for subdividing the class. Accepting such maneuvering would permit the Defendants to defeat the purposes of Rule 23. The Judge will grant summary judgment in favor of Gov. Ducey. He finds that the policy changes from 2013 forward do not appear to have resulted from the Executive Order, and the Plaintiffs provide no evidence of any other involvement in the policy changes by the Governor's office. Thus, even construing the evidence in the light most favorable to the Plaintiffs, it does not show that the Governor or the Executive Order required ADOT to declare that (c)(14) EAD holders are ineligible for licenses (or eligible if they present additional documents). Gov. Ducey's general duty to enforce Arizona law, and his general oversight of ADOT, are not sufficient to connect him to the enforcement of ADOT's policy with respect to (c)(14) EAD holders. The Defendants also characterize the Plaintiffs' preemption claim as attacking mere documentary burdens on (c)(14) holders, and argue that these documentary requirements are not classifications. But the policy the Plaintiffs attack, according to the Judge, is the three-part test and the Defendants' implementation of that test (through ADOT's Policy and MVD policies and practices) with respect to (c)(14) EAD holders. The Defendants' (c)(14) policies are based on the very test the Ninth Circuit found preempted in the Dream Act case. The Defendants present no evidence or argument that application of the test to deferred action recipients with (c)(14) EADs is any more appropriate than was its application to deferred action recipients holding (c)(33) EADs. The Court is bound by the Ninth Circuit's decision in the Dream Act case. Hence, the Judge holds that the Plaintiffs are entitled to summary judgment on their Supremacy Clause claim. The Judge declines to reach the merits of the Plaintiffs' Equal Protection claim. Given the formidable Equal Protection concerns raised by Arizona's policy, he instead based his decision on the Supremacy Clause. The Plaintiffs seek (1) a permanent injunction prohibiting the Defendants from implementing or enforcing Arizona's unconstitutional policy and practice of denying deferred action recipients with (c)(14)-coded (EADs) the ability to present their EADs alone to establish authorized presence to qualify for driver's licenses and state identification cards; and (2) a declaration making it clear that the Defendants' policies and practices, including Executive Order 2012-06, ADOT Policy 16.1.4, and Arizona's criteria for federally authorized presence, violate both the Supremacy Clause and the Equal Protection Clause. Judge Campbell holds that the government cannot suffer harm from an injunction that merely ends an unlawful practice. And the public has little interest in the Defendants continuing a policy that violates the Supremacy Clause. Because the Court certified a class of (c)(14) EAD holders under Rule 23, the injunction will grant relief to the entire class. Given that the Ninth Circuit already instructed Defendants in the Dream Act case that their three-part test for authorized presence violates the Supremacy Clause, but the Defendants nonetheless continued to rely on the test (and indeed seem to still believe in its validity), the Judge agrees with the Plaintiffs that declaratory relief will serve a useful purpose in finally putting this issue to rest and giving Plaintiffs relief from the uncertainty that gave rise to the Dream Act case and now this case. But he also agrees with the Defendants that the declaration the Plaintiffs request is broader than necessary. Particularly, the declaration should not address the Executive Order or the Governor's office because the Plaintiffs have not established a link between the unlawful (c)(14) policy and the Governor or Executive Order. And the declaration will not address the alleged Equal Protection violation because the Court does not reach the issue. Finally, the Plaintiffs move to seal portions of their statement of facts in support of summary judgment, exhibits in support of summary judgment, the Defendants' reply in support of summary judgment and response to the Plaintiffs' cross-motion, and the Defendants' response to the Plaintiffs' statement of facts. The Judge has reviewed the stipulations and redacted materials, and is satisfied with the parties' resolution. The submitted materials redact certain sensitive identifying or personal information about the Plaintiffs, but leave unredacted the Plaintiffs' names and other information that has previously been disclosed in public filings or hearings. He will order the sealing of the documents pursuant to the stipulations. For these reasons, Judge Campbell (i) denied the Defendants' motion to amend the class definition; (ii) granted the Defendants' motion for summary judgment with respect to Gov. Ducey and denied as to the remaining Defendants; (iii) granted the Plaintiffs' motion for summary judgment, declaratory relief, and a permanent injunction; and (iv) granted the Plaintiffs' motion to seal. Pursuant to the parties' stipulations, the Clerk is directed to file under seal Docs. 167, 168, 178, and 179. The redacted documents attached to the stipulations and filed separately (Docs. 176, 182, 186, 187, 188, 189) will remain in the public docket. The Judge declared that ADOT and MVD's policy and practice of treating noncitizens holding (c)(14)-coded EADs differently than other EAD holders is preempted under the Supremacy Clause of the U.S. Constitution. The Defendants, their officials, agents, employees, assigns, and all persons acting in concert or participating with them are permanently enjoined from implementing or enforcing a policy or practice of denying deferred action recipients with (c)(14)-coded EADs the ability to present their EADs alone to establish authorized presence for purposes of qualifying for Arizona driver's licenses. The Clerk will terminate the action. A full-text copy of the Court's June 20, 2018 Order is available at https://bit.ly/2MbNvhC from Leagle.com. Lucrecia Rivas Valenzuela & Marcos Gonzalez, Plaintiffs, represented by Alvaro M. Huerta, National Immigration Law Center, Daniel R. Ortega, Jr., Ortega Law Firm PC, Esther H. Sung -- sung@nilc.org -- National Immigration Law Center, Jessica R. Hanson, National Immigration Law Center, Julia Alejandra Gomez Hernandez, MALDEF, Karen Cassandra Tumlin -- tumlin@nilc.org -- National Immigration Law Center, Nicholas David Espiritu -- espiritu@nilc.org -- National Immigration Law Center, Nora A. Preciado -- preciado@nilc.org -- National Immigration Law Center & Tanya Broder -- broder@nilc.org -- National Immigration Law Center. Isabel Aceituno Lopez, Araceli Franco Gonzalez & Maria Del Carmen Palafox, Plaintiffs, represented by Alvaro M. Huerta, National Immigration Law Center, Daniel R. Ortega, Jr., Ortega Law Firm PC, Esther H. Sung, National Immigration Law Center, Jessica R. Hanson, National Immigration Law Center, Julia Alejandra Gomez Hernandez, MALDEF, Karen Cassandra Tumlin, National Immigration Law Center, Nicholas David Espiritu, National Immigration Law Center, Nora A. Preciado, National Immigration Law Center & Tanya Br Doug Ducey, Governor of the State of Arizona, in his official capacity, John S Halikowski, Director of the Arizona Department of Transportation, in his official capacity & Eric Jorgenson, Director of the Motor Vehicle Division of the Arizona Department of Transportation, in His official capacity, Defendants, represented by Doug C. Northup -- dnorthup@fclaw.com -- Fennemore Craig PC & Sean Thomas Hood -- shood@fclaw.com -- Fennemore Craig PC. AUSTRALIA: Wilsons Creek Residents Sue Over Telstra Tower --------------------------------------------------------- Asian Shand, writing for Echo Net Daily, reports that a nationwide class action is being filed against government and industry for harmful exposure to electromagnetic radiation (EMR) by Wilsons Creek locals over the development application for a Telstra microwave tower in their valley. The effects of electromagnetic radiation (EMR) is a contentious issue for many; those who have sought to avoid EMR towers for health reasons have been vilified. However, there is an increasing body of scientific literature that is now challenging the safety of EMR, and Oceania Radiofrequency Scientific Advisory Association (ORSAA) is a group of concerned scientists from a range of disciplines that have been bringing this material together. Locally, this is coming to a head around the proposed 35m Telstra microwave tower in Wilsons Creek with locals and other concerned community members forming the Environment and Community Safe from Radiation Association (ECSRA). ECSRA told The Echo they are now in the process of filing a nationwide class action against the government and industry, 'for failing to protect the citizens of Australia against exposure to harmful EMR from consumer products and industrial facilities such as mobile phone towers, and for forcing, without public consent, a potential carcinogen onto all Australians.' And they have some impressive backing, with barrister Raymond Broomhall from former Justice Michael Kirby's chambers coming on board to run the case. One local resident of 26 years, Barbara Cummings, told The Echo that she will have to consider selling her home if the Wilsons Creek tower goes ahead. 300m from home 'The apex of the tower will be directly in line with our house, only 300m away' said Barbara. 'My husband already has cancer and we don't need this as well.' According to Victor Leach from ORSAA, 'There is published evidence in the scientific literature reporting increased prevalence of adverse neurobehavioural symptoms and/or cancer in populations living at distances of less than 500 metres from base stations.' Sufficient evidence 'Experts such as oncologist Professor Lennart Hardell (at Örebro University Hospital in Örebro, Sweden) now consider there is sufficient evidence for radiofrequency (RF) radiation to be classified as a human Group 1 carcinogen according to the International Agency for Research on Cancer (IARC) definition. It is currently classified as a group 2B as a "possible" human carcinogen.' ECSRA have pointed out that there are already a number of towers throughout the Byron Shire and say that that 'the imminent 5G rollout, which is an integral part of the government/telco black spot program, requires one tower approximately every two to twelve houses.'[GN] AVENTURA DANCE: Sued by Fenwick Over Unsolicited Telemarketing -------------------------------------------------------------- JALINE FENWICK, individually and on behalf of all others similarly situated v. AVENTURA DANCE CRUISE, LLC, Case No. 0:18-cv-61587-BB (S.D. Fla., July 11, 2018), alleges that in violation of the Telephone Consumer Protection Act, the Defendant engages in unsolicited telemarketing directed towards prospective customers with no regard for consumers' privacy rights. Aventura Dance Cruise, LLC, is a Florida limited liability company with its principal address in Aventura, Florida. The Defendant promotes itself as the world's largest Latin dance cruise.[BN] The Plaintiff is represented by: 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 BASF SE: Emma Chemicals Alleges Price-Fixing of Diisocyanate ------------------------------------------------------------ EMMA CHEMICALS CO., INC., individually and on behalf of all those similarly situated, Plaintiff v. BASF SE; BASF CORP.; BAYER AG; BAYER CORP.; BAYER MATERIALSCIENCE LLC; COVESTRO LLC; DOW CHEMICAL CO.; HUNTSMAN INTERNATIONAL LLC; HUNTSMAN CORP.; MITSUI CHEMICALS AMERICA, INC.; MITSUI CHEMICALS, INC.; MITSUI CHEMICALS & SKC POLYURETHANES, INC.; MCNS POLYURETHANES USA INC. WANHUA CHEMICAL (AMERICA) CO. LTD.; WANHUA CHEMICAL GROUP CO., LTD., Defendants, Case No. 2:18-cv-02958-GJP (E.D. Pa., July 16, 2018) alleges violation of the Sherman Act, and the Clayton Act. The Plaintiff alleges in the complaint that the Defendants conspired to violate federal antitrust laws by fixing, raising and maintaining the prices of methylene diphenyl diisocyanate ("MDI") and toluene diisocyanate ("TDI") in the United States. The Defendants collectively carried out their plan to reverse the oversupply in the MDI and TDI markets by permanently closing and temporarily suspending operations of certain MDI and TDI manufacturing plants located around the world, as well as operating plants at reduced capacity. Prior to the conspiracy, plant-related issues were rare, with only eight incidents reported during the years 2012-15. Thereafter, however, the Defendants reported at least nine plant closures or production limitations that resulted in reduced supply of MDI and TDI in 2016, at least 15 plant closures or production limitations in 2017, and at least eight plant closures or production limitations thus far in 2018. This sudden incidence of plant closures and production limitations among all major manufacturers and sellers of MDI and TDI products is unprecedented and cannot be explained by mere coincidence. Rather, it is the result of an illegal agreement among the Defendants. As a result of the Defendants' conspiracy, TDI and MDI prices have reached unprecedented high levels. The Defendants' conspiracy has resulted in a minimum millions of dollars in overcharges for MDI and TDI purchasers. BASF SE operates as a chemical company worldwide. It operates through five segments: Chemicals, Performance Products, Functional Materials & Solutions, Agricultural Solutions, and Oil & Gas. BASF SE was founded in 1865 and is headquartered in Ludwigshafen am Rhein, Germany. [BN] The Plaintiff is represented by: Linda P. Nussbaum, Esq. Bart D. Cohen, Esq. Fred T. Isquith, Jr., Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036-8718 Telephone: (917) 438-9102 E-mail: lnussbaum@nussbaumpc.com bcohen@nussbaumpc.com fisquith@nussbaumpc.com BEHR DAYTON: Groundwater Contamination Case Ruling Affirmed ----------------------------------------------------------- Janet, Janet & Suggs on July 24 disclosed that in a unanimous opinion, the United States Court of Appeals for the Sixth Circuit has affirmed a lower court's decision to permit a lawsuit filed by Dayton, Ohio residents for toxic groundwater contamination to proceed as a class action. The ruling helps ensure that plaintiffs who consolidate in a single lawsuit a large number of claims that are economically infeasible to resolve in numerous separate lawsuits, will remain able to isolate and efficiently resolve key issues in complex cases. "The Sixth Circuit rightly concluded that the district court appropriately certified key issues in this case for class-wide resolution," said Howard A. Janet -- hjanet@JJSjustice.com -- managing partner of Janet, Janet & Suggs, LLC. "This preserves the right of our clients, who are primarily low-income, to present their claims to a jury. The ruling also ensures the parties will not have to litigate the same complex legal and scientific issues hundreds of times, which would be a tremendous waste of scarce judicial resources." Janet, Janet & Suggs, LLC is the class action law firm that serves as lead counsel for Plaintiffs. The underlying lawsuit concerns contamination of the McCook Field neighborhood over many years by two large underground toxic plumes containing known and probable human carcinogens. The neighborhood is now a Superfund site. Thirty named plaintiffs, representing owners of approximately 540 residential properties, filed suit in 2008 against Chrysler Motors LLC, Behr Dayton Thermal Products, LLC, Behr America, Inc. (which acquired Chrysler after its bankruptcy), and Aramark Uniform & Career Apparel, Inc. Plaintiffs allege that degreasing operations at a Chrysler automotive plant and dry cleaning operations at an Aramark facility created two overlapping toxic plumes, which Defendants knew about but failed to remediate for many years. As a result, hazardous vapors have risen (and continue to rise) from the plumes into Plaintiffs' homes, endangering their health and vastly diminishing their property values. Toxic vapors in the McCook Field neighborhood are so severe that Dayton authorities closed a local elementary school for safety concerns. The plumes also have the potential to contaminate Dayton's entire water supply. (The vapors that the plumes emit contain trichloroethylene ("TCE"), which, according to the EPA, "is carcinogenic to people through all routes of exposure"; and tetrachloroethylene ("PCE," a/k/a "PERC"), which the U.S. EPA classifies as "likely to be carcinogenic to humans.") After extensive, costly document discovery and depositions, Plaintiffs filed a motion for class certification in 2015. The motion asked the district court to permit a jury to decide, on a class-wide basis, whether Defendants were liable for the contamination (pursuant to Federal Rule of Civil Procedure 23(b)(3)). Plaintiffs requested in the alternative that a jury be allowed to resolve, on a class-wide basis, seven key issues in the case (pursuant to Rule 23(c)(4)). These issues, which are central to the claims of every class member, include the responsibility of each Defendant for the plumes, whether it was foreseeable that Defendants' activities would create the plumes and harm the Plaintiffs, and whether Defendants negligently failed to stop and remediate the contamination. Judge Walter H. Rice, of the United States District Court for the Southern District of Ohio, denied class certification under Rule 23(b)(3) as to the entire issue of liability, finding that common questions did not predominate over individual ones. But the court granted class certification under Rule 23(c)(4) on the seven important, common issues Plaintiffs identified. Defendants appealed the district court's Rule 23(c)(4) certification of issue classes. Defendants contended that appellate courts are divided on whether a court may certify a Rule 23(c)(4) issue class if it finds that common question do not predominate over individual ones as to the entire issue of liability. Defendants argued that the Sixth Circuit should adopt the "narrow view" in this alleged debate, and hold that the district court abused its discretion by certifying issue classes under Rule 23(c)(4) after it had denied certification of the issue of liability as a whole. A unanimous panel of the Sixth Circuit disagreed, and affirmed the district court's order. Writing for the panel, Judge Jane Stranch emphasized the wide discretion of a district court on whether to certify a class. The panel agreed with the "broad view" of issue certification—the majority position among federal appellate courts. The broad view "permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole." Under the broad view, courts analyze whether the predominance requirement has been met as to each common issue, rather than as to the entire issue of liability. "Because each issue may be resolved with common proof," the court held, "and because individualized inquiries do not outweigh common questions, the seven issue classes that the district court certified satisfy Rule 23(b)(3)'s predominance requirement." The Sixth Circuit also held that litigating the seven issues on a class-wide basis was a superior method of resolving the case when compared with the alternative—hundreds of separate lawsuits concerning the same fundamental issues. Judge Stranch observed that "the properties are in a low-income neighborhood, meaning that class members might not otherwise be able to pursue their claims. Even if the class members brought suit individually, the seven certified issues would need to be addressed in each of their cases." Thus, "[r]esolving the issues in one fell swoop would conserve the resources of both the court and the parties." The opinion casts doubt on the extent of the division among federal appellate courts on the question of whether the "broad view" or "narrow view" is correct. The court observed that "any potency the narrow view once held [in the Fifth Circuit, where the narrow view originated] has dwindled," and that the Eleventh Circuit has given only "tenuous" support to the narrow view. The court also rejected as premature Defendants' argument that litigating the case as an issues class action violated the Seventh Amendment right to a jury. "This ruling is a key victory on the path to obtaining full justice for our disadvantaged clients, who have suffered the severe negative effects of contamination of their neighborhood by carcinogens over many years," said Patrick A. Thronson of Janet, Janet & Suggs, LLC, who co-authored the brief submitted on behalf of Plaintiffs. "It is also a positive, meaningful development in class action law as a whole. The decision will help ensure that other plaintiffs and defendants remain able to efficiently resolve key discrete issues in complex cases, saving litigants and courts time and money." The lawsuit is captioned Terry Martin, et al. v. Behr Dayton Thermal Products, LLC, et al., case no. 3:08-cv-00326 in the district court, and case no. 17-3663 in the Sixth Circuit. About Janet, Janet & Suggs, LLC Janet, Janet, and Suggs, LLC (JJS) -- http://www.JJSjustice.com-- represents plaintiffs in complex, high stakes litigation in class action, environmental contamination, medical malpractice, sexual abuse, fraudulent business practices, product liability, qui tam, and Federal Tort Claims Act cases. The firm has successfully resolved claims against some of the nation's largest corporations, including Honeywell, BP America, The Johns Hopkins Hospital, Penn State University, DuPont, Dow Corning, Baxter Healthcare, Bayer, Wyeth, and the Mayo Clinic, among many others. JJS has won verdicts and negotiated settlements that collectively exceed $1 billion, working alone or in collaboration with other firms. The class action lawyers at JJS achieved a $190 million settlement in a class action lawsuit against Johns Hopkins Hospital for sexual misconduct by a physician, a $19.5 million settlement in a class action lawsuit against BP America and ARCO for mining contamination in Nevada, and a $10 million settlement in a New Jersey class action lawsuit against Honeywell International for toxic hexavalent chromium contamination. Headquartered in Baltimore, Maryland the firm has a national practice, with offices in nine states. [GN] BETTA BURGER: Seeks to Hire Bach Law Offices as Attorney -------------------------------------------------------- Betta Burger Group, LLC – Series B, seeks authority from the U.S. Bankruptcy Court for the Northern District of Illinois to employ Bach Law Offices, Inc., as attorney to the Debtor. Betta Burger requires Bach Law Offices to: a. assist and represent the Debtor in matters concerning negotiations with creditors; b. prepare a plan and disclosures statement; c. examine and resolve claims filed against the estate; d. prepare and prosecute adversary matters; and e. represent the Debtor in matters before the Bankruptcy Court. Bach Law Offices will be paid at the hourly rate of $425. As of the petition date no funds have been tendered to Bach Law Offices. However, the Law Offices of Schneider & Stone is holding funds in the amount of $7,215.01 as a retainer for three cases (Betta Burger Group, LLC – Case No. 18-18403; Betta Burger Group, LLC - Series A – Case No. 18-18394; and Betta Burger Group, LLC - Series B – Case No. 18-18397). Bach Law Offices will also be reimbursed for reasonable out-of-pocket expenses incurred. Paul M. Bach, partner of Bach Law Offices, Inc., assured the Court that the firm is a "disinterested person" as the term is defined in Section 101(14) of the Bankruptcy Code and does not represent any interest adverse to the Debtor and its estates. Bach Law Offices can be reached at: Paul M. Bach, Esq. BACH LAW OFFICES, INC. Paul M. Bach, Esq. Penelope N. Bach, Esq. P.O. Box 1285 Northbrook, IL 60065 Tel: (847) 564 0808 About Betta Burger Group, LLC – Series B Betta Burger Group, LLC – Series B, filed a Chapter 11 bankruptcy petition (Bankr. N.D. Ill. Case No. 18-18397) on June 28, 2018. The Debtor hired Bach Law Offices, Inc., as counsel. CAESARS ENTERTAINMENT: Court Dismisses M. Cabral's ITFA Suit ------------------------------------------------------------- The United States District Court for the District of Nevada granted Defendant's Motion to Dismiss the case captioned MARGARITA CABRAL, et al., Plaintiffs, v. CAESARS ENTERTAINMENT CORPORATION, et al., Defendants, Case No. 2:17-cv-02841-APG-VCF (D. Nev.). The Plaintiffs allege the hotels charge overnight guests a mandatory per-night resort fee that includes payment for Internet access. The plaintiffs allege that the defendants applied the Clark County Combined Transient Lodging Tax to the entire amount of the resort fee, including that portion that covers Internet access. The plaintiffs assert this violates the Internet Tax Freedom Act (ITFA), a federal statute that precludes States and their political subdivisions from taxing Internet access. The plaintiffs bring a class action complaint and assert claims for (1) violation of ITFA, (2) violation of Clark County Code Section 4.08.005 for failing to refund over-collection of the Lodging Tax, (3) violation of the Nevada Deceptive Trade Practices Act, (4) breach of the covenant of good faith and fair dealing, (5) money had and received, (6) conversion, (7) unjust enrichment, and (8) declaratory judgment. The plaintiffs seek injunctive relief, declaratory relief, and damages. The defendants move to dismiss for lack of jurisdiction, arguing the Tax Injunction Act (TIA) bars the plaintiffs' claims in federal court. The Lodging Tax Clark County Code Chapter 4.08 sets forth the Lodging Tax, which is a tax on revenue derived from short-term room rentals for dwelling, lodging, or sleeping purposes, such as hotel rooms. The tax applies to rent, which means the amount charged for a sleeping room/space in a transient lodging establishment, valued in money, whether received in money or otherwise, including charges that would normally be part of an all inclusive room rate, such as late check-out fees, cancellation fees, and the like. TIA The TIA provides that a federal district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. The Lodging Tax is a Tax under the TIA Federal law determines whether an assessment qualifies as a tax for purposes of the TIA Wright v. Riveland, 219 F.3d 905, 911 (9th Cir. 2000). To determine whether an assessment is a tax, the Court consider: (1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or used for the regulation or benefit of the parties upon whom the assessment is imposed. The Lodging Tax is a tax within the TIA's meaning. This Suit Seeks to Enjoin, Restrain, or Suspend the Assessment, Levy, or Collection of the Lodging Tax The plaintiffs contend their suit does not stop collection of the Lodging Tax because they do not challenge that tax or any state or local rule. Rather, they contend, they are challenging the defendants' unilateral decision to bundle the Internet access into the resort fee and to then apply the tax to the entire resort fee. The plaintiffs argue that their suit is consistent with Clark County's interpretation of the Lodging Tax, as Clark County identifies non-mandatory Internet access fees as non-taxable and has advised operators not to comingle taxable and non-taxable revenues in the same account. However, that involves disputes on the merits of whether the defendants are properly applying the Lodging Tax and whether their conduct violates the ITFA. Those are questions for the state court to resolve. Plaintiffs Have a Plain, Speed, and Efficient State Law Remedy The TIA bars federal jurisdiction only if there is a plain, speedy and efficient remedy in the state courts. The defendants identify two potential state law remedies. First, the defendants suggest the plaintiffs could request a refund under the Clark County Code's refund procedures. Alternatively, the defendants argue the plaintiffs could bring these same claims in state court. The plaintiffs assert they could not bring a refund claim because under the Code, only operators, who are the taxpayers, may assert a refund claim. They also appear to assert their claims would be rejected in state court because they are not the taxpayers, the operators are. That remedy is plain, particularly given that all but one of the plaintiffs' claims in the complaint arise under Nevada state law. Although the plaintiffs suggest Nevada may not allow them to pursue their claims because they are not the taxpayer, they cite no law in support of that argument except for an unpublished decision from another state. The plaintiffs have not cited a case in which the Nevada courts refused to hear a claim similar to the plaintiffs' claims. They thus have not given [me] any convincing reason to doubt that the Nevada courts will entertain their claims, including the federal issue of whether the defendants' conduct violates the ITFA. The plaintiffs therefore have not met their burden of showing there is no plain remedy in state court. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/yccaswg5 from Leagle.com. Margarita Cabral, Dustin Chapman, Edmond David, Buffy Haugh, Cathy Gravile, Gina Marinelli, Eric Marmion, Ashley McGowan, Todd Miller, Maritza Rivas, Diane Sommer, Susan Unger, Dan Unger, Andra Verstraete, Stephanie Cohen & Ryan Courtney, Plaintiffs, represented by Bradley Scott Schrager , Wolf, Rifkin, Shapiro, Schulman & Rabkin, Michael C. Dell'Angelo -- mdellangelo@bm.net -- Berger & Montague, P.C., pro hac vice, R. Bryant McCulley -- bmcculley@mcculleymccluer.com -- McCulley McCluer PLLC, pro hac vice & Don Springmeyer , Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP. Caesars Entertainment Corporation, Caesars Entertainment Operating Company, Inc., Caesars Entertainment Resort Properties, LLC, Caesars Entertainment Resort Properties Holdco LLC, Caesars Enterprise Services, LLC, Caesars Growth Bally's LV, LLC, Caesars Growth Properties Holdings, LLC, Caesars Growth Properties Parent, LLC, Caesars Growth Partners, LLC, Caesars Growth Quad LLC, Caesars Growth PH, LLC, Caesars World, LLC, Caesars Palace Corporation, Desert Palace, LLC, doing business as Caesars Palace, Flamingo Las Vegas Operating Company, LLC, doing business as Flamingo Las Vegas, Harrahs Las Vegas, LLC, doing business as Harrah's Casino Hotel Las Vegas, Parball Newco, LLC, doing business as Bally's Las Vegas, PHWLV, LLC, doing business as Planet Hollywood Resort & Casino, Rio Properties, LLC, doing business as Rio All-Suite Hotel & Casino, 3535 LV NEWCO, LLC, doing business as Linq Hotel and Casino & Paris Las Vegas Operating Company, LLC, doing business as Paris Las Vegas, Defendants, represented by John D. Tennert -- bmcculley@mcculleymccluer.com -- Fennemore Craig, P.C.. CALIFORNIA TEACHERS: 9th Cir. Denies Bid to Add AAE as Plaintiff ---------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, denied Plaintiffs' motion to add the Association of American Educators (AAE) to their suit as an organizational Plaintiff under Federal Rule of Civil Procedure 21 in the case captioned APRIL BAIN; BHAVINI BHAKTA; CLARE SOBETSKI, Plaintiffs-Appellants, v. CALIFORNIA TEACHERS ASSOCIATION; NATIONAL EDUCATION ASSOCIATION; CALIFORNIA FEDERATION OF TEACHERS; AMERICAN FEDERATION OF TEACHERS; UNITED TEACHERS LOS ANGELES; UNITED TEACHERS OF RICHMOND CTA/NEA; RAMON CORTINES, in his capacity as Superintendent of Los Angeles Unified School District; BRUCE HARTER, in his capacity as Superintendent of West Contra Costa Unified School District; DAVID VANNASDALL, in his capacity as Superintendent of Arcadia Unified School District, Defendants-Appellees, No. 16-55768 (9th Cir.). The Plaintiffs-Appellants are public school teachers in California who were, at the time they filed their lawsuit, members of the Defendants-Appellees public sector teachers' Unions. The Plaintiffs claim that their Unions' requirement that they pay a fee to support the Unions' political and ideological activities violates their constitutional right to free speech. The Plaintiffs seek declaratory relief in the form of (1) a declaration that California's agency shop laws, collective bargaining laws, and the CBAs entered into the by the Unions violate their constitutional rights; (2) a declaration that those laws and CBAs coerce teachers into funding the Unions' political activities in violation of their constitutional rights; and (3) a declaration that those laws and CBAs violate the Plaintiffs' constitutional rights by forcing school superintendents to deduct from teachers' paychecks dues that support the Unions' non-chargeable activities. The Plaintiffs also seek an injunction (1) barring the Unions from denying Union membership or any of its privileges based on a teacher's refusal to pay the non-chargeable fee; and (2) barring school superintendents from deducting the non-chargeable fee from Union members' pay-checks. Finally, the Plaintiffs seek such additional or different relief as the district court deems just and proper, including an award of reasonable attorneys' fees and the costs of this action. The Unions filed a motion to dismiss the Second Amended Complaint (SAC) under Federal Rule of Civil Procedure 12(b)(6), which the district court granted with prejudice. The court rejected the Plaintiffs' argument that the Unions' internal membership rules requiring their members to pay the non-chargeable fee constitute state action. The court found unpersuasive the Plaintiffs' theory that the choice teachers face between the benefits of union membership and the lack of benefits of non-member status is a product of state action because the coercion that California teachers experience could not exist without the State. To the contrary, the court found that because the Unions could decide, without any intervention by the State, not to require their members to pay non-chargeable fees, Plaintiffs challenged only a private decision by the Unions. The review a district court's grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim de novo. A motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,' construing the complaint in the light most favorable to the plaintiff. For the sake of completeness, the Ninth Circuit proceeds to consider whether AAE satisfies the criteria for Rule 21 joinder, notwithstanding our holding that the appeal is moot. A party may join a lawsuit on appeal under Rule 21 when the party seeking joinder [1] requests the same remedy as the original party and [2] offers the same reasons for that remedy and [3] earlier joinder would not have affected the course of the litigation. AAE satisfies the first factor because both it and the Plaintiffs seek the same declaratory and injunctive relief. While the Plaintiffs also seek restitution in their post-merits briefing, as explained in Part IV.A, the Court do not credit this eleventh-hour plea to convert a matter that was always about securing prospective equitable relief into a claim for money damages. However, AAE fails to carry its burden on the second and third factors. AAE has not shown that it seeks relief for the same reasons as the original Plaintiffs and, as a consequence, joining AAE presents a considerable risk of prejudice to the Unions in their chosen defense. AAE's interests and those of the Unions diverge in a crucial way: AAE seeks to out-compete the Unions, whereas the Plaintiffs continue to support their Unions. Indeed, AAE characterizes its mission as providing an alternative to the partisan politics of the teacher labor unions. AAE has also acknowledged that its affiliates and affiliates of public sector teachers' unions compete for membership dues dollars, because as a practical matter both organizations offer similar benefits and one would not expect teachers to pay two sets of dues for similar benefits. In other words, join AAE, not the Unions. Driving home the point, AAE recently stated that there is a direct conflict between AAE's mission and collective bargaining by the Unions, and that it objects on policy grounds to the positions taken by teachers' unions in the collective-bargaining process and outside of that process. The Plaintiffs, by contrast, value their unions, in particular the support their Unions provide in "negotiating with their employers" through collective bargaining. In sum, because AAE's interests in pursuing this appeal diverge from those of the original Plaintiffs, the risk of prejudice to the Unions of adding AAE as a party to the Plaintiffs' action is acute. AAE therefore cannot satisfy the three-part test for joining a party under Rule 21. In both the district court and in their merits briefing on appeal, the Plaintiffs were the only plaintiffs to this suit. But the Plaintiffs resigned their Union memberships during the pendency of their appeal, thereby mooting the appeal and depriving the Ninth Circuit of jurisdiction. Now, at the eleventh hour, the Plaintiffs seek to add a new party, AAE, to their action. Adding a new party on appeal is rarely done, however, and is particularly ill-advised, indeed, the Court hold it to be erroneous as a matter of law when used to resurrect a moot case. And even if mootness were not an insurmountable barrier to considering a Rule 21 motion, the Court would still deny the motion because AAE fails to satisfy the criteria for Rule 21 joinder. Accordingly, the Court dismisses the Plaintiffs' appeal and remands to the district court with instructions to dismiss the case without vacating its judgment. A full-text copy of the Ninth Circuit's June 11, 2018 Opinion is available https://tinyurl.com/yby6gt8c from Leagle.com. Joshua S. Lipshutz -- jlipshutz@gibsondunn.com -- (argued), Gibson Dunn & Crutcher LLP, San Francisco, California; Theodore J. Boutrous Jr. -- tboutrous@gibsondunn.com -- Marcellus McRae -- mmcrae@gibsondunn.com -- and Samuel Eckman -- seckman@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Los Angeles, California; Kyle Hawkins , Gibson Dunn & Crutcher LLP, Dallas, Texas; Michael R. Huston , Gibson Dunn & Crutcher LLP, Washington, D.C.; for Plaintiffs-Appellants. Eric A. Harrington (argued), Jason Walta , and Alice O'Brien , National Education Association, for Defendants-Appellees. CANADA: Faces Class Action Over Orkambi Coverage ------------------------------------------------ Katie DeRosa, writing for Times Colonist, reports that a University of Victoria student with a rare strain of cystic fibrosis is one of the lead plaintiffs in a class-action lawsuit against the B.C. government, the federal government and two drug- approval bodies for failing to provide coverage for Orkambi under public drug plans. Lilia Zaharieva, a 31-year-old Saanich woman, and Melissa Verleg, a 34-year-old mother of two in Vernon, are seeking $60 million damages as a result of what they allege are flawed drug-approval processes that have led the provincial government to refuse to cover the $250,000-a-year medication Orkambi. The lawsuit alleges the decision not to fund the drug infringes on patients' Charter of Rights to health, access to care and equal treatment. Ms. Zaharieva and Ms. Verleg both have a strain of cystic fibrosis called Double Delta F508 and they say Orkambi increases their lung capacity and lengthens their lifespan. "I see this step as an unfortunate last resort," Ms. Zaharieva told the Times Colonist after a news conference in Vancouver. "I've been trying to meet with [Health Minister] Adrian Dix, I've held rallies, I've had people send letters. I see this as necessary in terms of making the kind of change that would make this medication available to everyone who needs it." Their lawyer, Chris MacLeod, who is also the chair of the Canadian Cystic Fibrosis Treatment Council, said there are more than 200 people in B.C. with the specific genetic mutation. Some patients who take Orkambi, manufactured by Vertex Pharmaceuticals, are covered by their private insurance plans. Ms. Zaharieva was on her last week's supply of Orkambi in March when she found out that Vertex would provide the drug for free under compassionate coverage. The coverage is temporary, however, and Ms. Zaharieva has no idea how long it will last. Ms. Verleg has been without Orkambi since February and said her lung capacity has declined dramatically. The two drug approval bodies named in the lawsuit are the Canadian Agency for Drugs and Technologies in Health (CADTH), which assess whether a medication should be covered by provincial drug plans, and the Pan Canadian Pharmaceutical Alliance (pCPA), which negotiates prices for publicly covered drugs on behalf of the provinces and territories. Despite being approved by Health Canada, CADTH and B.C.'s Drug Benefit Council recommended against coverage of Orkambi because of insufficient clinical evidence and its high price tag. Mr. MacLeod said the CADTH drug-approval process is opaque and discriminates against patients with rare diseases. As well as damages, the lawsuit requests an injunction compelling the B.C. government to cover Orkambi under Pharmacare. The lawsuit was filed on July 24 and has not yet been served, Mr. MacLeod said. The Healthy Ministry said in a statement that since the matter will soon be before the courts, it cannot comment on the specific details of this case. The ministry did say: "British Columbia is fully committed to an evidence-based process which includes consideration of recommendations by the Canadian Agency for Drugs and Technologies in Health (CADTH) on a drug's clinical efficacy and cost effectiveness, followed by a review by the provincial Drug Benefit Council. "While Health Canada provides federal market authorization to sell a drug -- this approval does not mean that the drug has been analyzed by Health Canada as being effective or cost-efficient. It is simply an initial first step that means that the drug is able to move forward in the review process, because it is safe as a placebo. "Once Health Canada approves a drug to be sold, the manufacturer submits it to the Canadian Agency for Drugs and Technologies in Health (CADTH) for the drug to be considered for potential coverage by provincial drug plans. This process ensures that important drug listing decisions are based on evidence-based, clinical analysis involving patient groups and are not the result of political lobbying." The Health Ministry said the cost for funding Orkambi for about 120 patients in B.C. would be $85.5 million over three years. It also said the price of Orkambi in Canada is under investigation by the Patented Medicines Price Review Board, Canada's drug pricing watchdog. Orkambi is publicly covered in Ireland, the United States, Germany and France. CADTH is in the middle of a third review on Orkambi, initiated after pressure from the B.C. government to revise its submission process which allowed Vertex to submit additional clinical data to support the drug's effectiveness. When asked why the lawsuit is being launched before the third review is complete, Mr. MacLeod said: "Because time, in our view, has run out." [GN] CANADA: Inmate Sues Over Attorney-Client Privilege Violation ------------------------------------------------------------ Darryl Greer, writing for Courthouse News Service, reports that a prison inmate claims in a proposed class action that the Canadian government systematically records privileged communications between prisoners and their lawyers in federal institutions. Adrian Philip filed the action against the Attorney General of Canada in Federal Court, claiming the Canadian government breached inmates' privacy rights and rights under the country's constitution. He's imprisoned at Collins Bay Institution, a federal prison in Kingston, Ontario. Mr. Philip claims the Correctional Service of Canada intrudes upon inmates' privacy rights "by listening to, recording, and divulging to their parties the contents of private telephone conversations between inmates and their respective lawyers." "Nothing is more likely to have a 'chilling' effect upon the frank and free exchange and disclosure of confidences, which should characterize the relationship between inmate and counsel, than knowledge that what has been said will be listened to or recorded by some third person, divulged to other parties, or used against the inmate," the claim states. Mr. Philip claims he was charged with more crimes while already in jail, which limited his access to the institution's telephone system "exclusively for the purposes" of privileged conversations with his lawyers. He claims he learned that staff at the prison had listened to and recorded his calls in August 2017, and used the information to prosecute him for additional offences. In a phone interview with Courthouse News, Mr. Philip's lawyer Rajinder Sahota, with Acheson Sweeney Foley Sahota, was reluctant to elaborate on the lawsuit's specifics, such as how his client found out about the recordings. "At this stage we're in the early days. The pleadings themselves set out the crux of the factual argument that we're making. We didn't really hold back," he said. "What I can tell you is that the concerns that are raised are systemic, they're widespread, and they exist from coast-to-coast in all federal correctional institutions." Mr. Sahota said he didn't have numbers to estimate the potential size of the class, but said it's "going to be a substantial number" given the scope of the case and time frame because as far as his firm knows, "it's never been any other way." "It struck us as something that attacks the very core of our legal system and the integrity of our legal system is put into question when this type of conduct occurs," Mr. Sahota said. "But the fact that solicitor-client conversations are being recorded, particularly when the government is aware that those kind of conversations are occurring given the way the process has been set up by the government to record all conversations and have inmates indicate who they are calling and for what purpose, that's what strikes this as particularly egregious." Philip seeks class certification and a declaration that the Canadian government breached its duties of care and fiduciary duties to inmates as well as their privacy rights and rights under the Canadian Charter of Rights and Freedoms and damages exceeding $50,000. A Correctional Service of Canada spokeswoman pointed to the agency's policy that says "calls between inmates and privileged correspondents are normally confidential. They may however be subject to interception" if certain conditions under corrections regulations and directives are met. [GN] CAPITAL MANAGEMENT: Sued by Kupczyk for Illegal Debt Collection --------------------------------------------------------------- ESTER KUPCZYK on behalf of herself and all other similarly situated consumers v. CAPITAL MANAGEMENT SERVICES, L.P., Case No. 1:18-cv-03909-ARR-SMG (E.D.N.Y., July 6, 2018), alleges that the Defendant's collection practices violate the Fair Debt Collection Practices Act. Capital Management, with its principal place of business located within Buffalo, New York, is regularly engaged, for profit, in the collection of allegedly owed consumer debts.[BN] The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com CAPITAL ONE AUTO: Scott Suit Alleges Violation of RISA ------------------------------------------------------ Almond Scott, individually and on behalf of all others similarly situated, Plaintiff v. Capital One Auto Finance, Defendant, Case No. CV18900672 (Ohio Com. Pleas, Cuyahoga Cty., July 13, 2018) alleges violation of the Retail Installment Sales Act and the Ohio Uniform Commercial Code. The Plaintiff alleges in the complaint that the Defendant finances high rate auto loans for Ohio consumers by taking assignment of retail installment sales agreements from Ohio car dealers. Upon repossession, the Defendant sends its borrowers form notices which expressly misstates and violate their statutory rights. Capital One Auto Finance, Inc. provides vehicle financing. The company offers auto finance products and agent banking auto finance programs to buy the motorcycles. It also provides direct mail and online vehicle finance. Capital One Auto Finance, Inc. offers services through a network of dealers. The company was founded in 1995 and is based in Plano, Texas. As of July 16, 1998, Capital One Auto Finance, Inc. operates as a subsidiary of Capital One, N.A. [BN] The Plaintiff is represented by: Ronald I. Frederick, Esq. Michael L. Berler, Esq. Michael L. Fine, Esq. FREDERICK & BERLER LLC 767 E 185th Street Cleveland, OH 44119 Telephone: (216) 502-1055 Facsimile: (216) 566-9400 E-mail: ronf@clevelandconsumerlaw.com mike@clevelandconsumerlaw.com michaelf@clevelandconsumerlaw.com CARRIBEAN CRUISE: Sears Awaits Ruling in Robocall Settlement ------------------------------------------------------------ Robert Channick, writing for Chicago Tribune, reports that struggling retailer Sears has a lot on the line in a multimillion-dollar class-action settlement over unwanted robocalls offering free Caribbean cruises. A federal judge in Chicago was expected to decide whether Sears is entitled to as much as $6 million for thousands of sales calls received by its employees from Caribbean Cruise Line nearly seven years ago. The bulk of the Sears claim was initially denied for missing a filing deadline. Caribbean agreed in late 2016 to pay between $56 million and $76 million to settle the class-action lawsuit alleging the company and its co-defendants made millions of unwanted robocalls offering the free cruise trips in violation of the federal Telephone Consumer Protection Act. Individual class members are to be paid up to $500 per call received, according to the settlement. Learning of the settlement by "word of mouth" days before a Feb. 1, 2017, filing deadline, Sears put in an initial claim for 18 robocalls received by its employees and requested a 60-day extension to find more. After subpoenaing phone records from Verizon, Sprint and AT&T, Sears filed amended claims for 12,424 qualifying robocalls from Caribbean between Aug. 1, 2011, and Aug. 31, 2012, the period covered by the settlement. A settlement administrator said Sears was too late and denied the amended claims. The company appealed the decision to U.S. District Judge Matthew Kennelly, who said Monday he would issue a written ruling on the request for review within the next seven to 10 days. At $500 for each robocall, his ruling could mean the difference between a payout of thousands or millions of dollars for Sears. Howard Riefs, a spokesman for Hoffman Estates-based Sears Holdings Corp., declined to comment on July 24 beyond the court filings. The money might be something of a windfall for Sears, which has been closing stores and laying off employees amid slumping sales. Sears closed its last Chicago store earlier in July and is closing dozens more across the U.S. Most of the claimants in the Caribbean Cruise Line class-action suit do not fall under a corporate umbrella. Filed in 2012, the lawsuit was brought by Chicago-area residents Grant Birchmeier and Stephen Parkes, who alleged that Fort Lauderdale, Fla.-based Caribbean illegally contacted them multiple times on their cellphones. The settlement class includes consumers who received one or more of the automated phone calls offering a free cruise in exchange for taking a political survey. The lawsuit called the survey a "scam" and a "marketing tool with no legitimate political basis." The settlement was approved in April 2017, but the claims are still being finalized and, in some cases, challenged before Caribbean writes the checks. A larger number of approved claims could push the payout to the higher end of the agreed-upon settlement. The Federal Communications Commission revised its rules in 2012 to require telemarketers to obtain prior written consent from consumers before robocalling them, to no longer allow an "established business relationship" as an exemption, and to provide an "opt-out" mechanism during each robocall. While Sears is seeking payment in the Caribbean settlement, the retailer allegedly has been blitzing consumers this year with unwanted robocalls itself, according to a lawsuit filed in July in federal court in Chicago. The lawsuit, which is seeking class-action status, alleges that Sears made "unsolicited, autodialed calls to consumers without their consent" to pitch Sears Home Services, in violation of the same federal law. Mr. Riefs declined to comment on the lawsuit against Sears. [GN] CAVALRY PORTFOLIO: Obtains Stay in One of Two TCPA Class Actions ---------------------------------------------------------------- Artin Betpera, Esq. -- artin.betpera@wbd-us.com -- of Womble Bond Dickinson (US) LLP, in an article for National Law Review, wrote that Cavalry Portfolio Services is defending two nearly-identical putative TCPA class actions in California, and recently obtained a stay in one of those cases, pending a forthcoming ruling on ATDS functionality in the other. In Krejci v. Cavalry Portfolio Servs., No. 3:16-cv-0211-JAH-WVG, 2018 U.S. Dist. LEXIS 122904 (S.D. Cal. July 17, 2018), Cavalry moved for a stay of the action until the court in the related case of Horton v. Calvary Portfolio Services, LLC, 13-cv-0307-JAH (WVG) (S.D. Cal.) rules on the parties' cross-motions for summary judgment concerning whether the Aspect dialing system used by Cavalry "is an ATDS within the meaning of the TCPA." Krejci, supra at *5. Judge John A. Houston of the Southern District of California granted Cavalry's motion, finding a stay was appropriate for three reasons: (1) Plaintiff had failed to demonstrate any potential harm that would result from a limited stay; (2) Cavalry's burden in having to litigate the same issue over again; and (3) "a determination as to whether or not Cavalry's Aspect system qualifies as an ATDS," in Horton would have a "substantial impact" on the Krejci case. This was a prudent exercise of discretion by Judge Houston, and his ruling illustrates the importance of every unpublished District Court decision on key issues like ATDS functionality. As we've covered on the Ramble in past episodes, every one of these lower court decisions has the potential to cause significant ripples throughout TCPAland. And that's part of what makes this place special. Oral argument on the Horton cross-summary judgment motions is scheduled for August 13, 2018. We wait on the edge of our seats to provide you with our reporting and analysis on this next upcoming episode in the ATDS functionality saga. [GN] CHINA AGRITECH: SCOTUS Upholds Dismissal of Successively Filed Suit ------------------------------------------------------------------- The Supreme Court of the United States reversed the decision of the Court of Appeals reversing the District Court's dismissal of the securities fraud action against China Agritech, Inc. The question presented before the Supreme Court: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? The case is the third class action brought on behalf of purchasers of petitioner China Agritech's common stock, alleging violations of the Securities Exchange Act of 1934. In short, the successive complaints each make materially identical allegations that China Agritech engaged in fraud and misleading business practices, causing the company's stock price to plummet when several reports brought the misconduct to light. Respondent Michael Resh, who had not sought lead plaintiff status in either the Dean (Dean complaint) or Smyth (Smyth complaint) proceedings and was represented by counsel who had not appeared in the earlier actions, filed the present suit on June 30, 2014, styling it a class action a year and a half after the statute of limitations expired. The other respondents moved to intervene, seeking designation as lead plaintiffs; together with Resh, they filed an amended complaint. The District Court dismissed the class complaint as untimely, holding that the Dean and Smyth actions did not toll the time to initiate class claims. The Court of Appeals for the Ninth Circuit reversed, permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe, American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), tolling, the court reasoned, would advance the policy objectives that led the Supreme Court to permit tolling in the first place. Applying American Pipe tolling to successive class actions, the Ninth Circuit added, would cause no unfair surprise to defendants and would promote economy of litigation by reducing incentives for filing protective class suits during the pendency of an initial certification motion. American Pipe established that the commencement of the original class suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. Between dozens and hundreds of class plaintiffs filed protective individual claims while class-certification motions were pending in securities cases and the statute of repose was about to run out, placing a permanent bar against their claims. But none of the plaintiffs appears to have filed a protective class action even though, if the statute of repose expired and the pending class-certification motions were denied, there would be no further opportunity to assert class claims. Nor do the incentives of class-action practice suggest that many more plaintiffs will file protective class claims as a result of the Supreme Court's holding. Any plaintiff whose individual claim is worth litigating on its own rests secure in the knowledge that she can avail herself of American Pipe tolling if certification is denied to a first putative class. The plaintiff who seeks to preserve the ability to lead the class whether because her claim is too small to make an individual suit worthwhile or because of an attendant financial benefit has every reason to file a class action early, and little reason to wait in the wings, giving another plaintiff first shot at representation. A multiplicity of class-action filings is not necessarily needless. Indeed, multiple filings may aid a district court in determining, early on, whether class treatment is warranted, and if so, which of the contenders would be the best representative. And sooner rather than later filings are just what Rule 23 encourages. Multiple timely filings might not line up neatly; they could be filed in different districts, at different times perhaps when briefing on class certification has already begun or on behalf of only partially overlapping classes. But district courts have ample tools at their disposal to manage the suits, including the ability to stay, consolidate, or transfer proceedings. District courts are increasingly familiar with overseeing such complex cases, given the surge in multidistrict litigation. The Federal Rules provide a range of mechanisms to aid courts in this endeavor. What the Rules do not offer is a reason to permit plaintiffs to exhume failed class actions by filing new, untimely class claims. The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all these reasons, it is the rule the Supreme Court adopts: Time to file a class action falls outside the bounds of American Pipe. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. The case is CHINA AGRITECH, INC., Petitioner, v. MICHAEL H. RESH, ET AL., No. 17-432 (U.S.). A full-text copy of the Supreme Court's June 11, 2018 Opinion is available https://tinyurl.com/ybyfmk4a from Leagle.com Seth Alben Aronson , O'Melveny & Myers LLP, saronson@omm.com, Attorneys for Petitioner, China Agritech, Inc. Charles Eric Coleman , Lewis Brisbois Bisgaard & Smith, LLP, Charles.Coleman@lewisbrisbois.com, Attorneys for Respondent, Charles Law. David C. Frederick , Kellogg, Hansen, Todd, Figel & Frederick, dfrederick@kellogghansen.com., Attorneys for Respondent, William Schoenke, Heroca Holding, B.V. and Ninella Beheer, B.V. Matthew Moylan Guiney , Wolf Haldenstein Adler Freeman & Herz, LLP, guiney@whafh.com, Attorneys for Respondent, William Schoenke, Heroca Holding, B.V. and Ninella Beheer, B.V. George Edward Anhang , Cooley LLP, GAnhang@Cooley.com, for Washington Legal Foundation. Max W. Berger , Bernstein Litowitz Berger & Grossmann LLP, MWB@blbglaw.com, for National Conference on Public Employee Retirement Systems. Andrew Nathan Goldfarb , Zuckerman Spaeder LLP, agoldfarb@zuckerman.com, for Retired Federal Judges. Deepak Gupta , Gupta Wessler PLLC, deepak@guptawessler.com, for American Association for Justice, et al. Lewis Jeffrey Liman , Cleary Gottlieb Steen & Hamilton LLP, lliman@cgsh.com, for Securities Industry and Financial Markets Association. Lumen N. Mulligan , University of Kansas School of Law, lumen@ku.edu, for Law Professors. Scott Lawrence Nelson , Public Citizen Litigation Group, snelson@citizen.org, for Public Citizen, Inc. Julie Nepveu , AARP Foundation Litigation, jnepveu@aarp.org, for AARP and AARP Foundation. Mark Andrew Perry , Gibson, Dunn & Crutcher, LLP, mperry@gibsondunn.com, for Chamber of Commerce of the United States of America, et al. Joseph Marc Sellers , Cohen Milstein Sellers & Toll PLLC, jsellers@cohenmilstein.com, for Plaintiffs in Post-Dukes Successor Class Actions. Robert Latane Wise , Bowman and Brooke LLP, rob.wise@bowmanandbrooke.com, for DRI — The Voice of the Defense Bar. Susan E. Burnett , Bowman and Brooke LLP, susan.burnett@bowmanandbrooke.com, for DRI — The Voice of the Defense Bar. Lyle Roberts , Cooley LLP, lroberts@cooley.com, for Washington Legal Foundation COCA-COLA CO: 3rd Cir. Affirms Summary Judgment in "Enslin" Suit ---------------------------------------------------------------- In the cases, SHANE E. ENSLIN, on behalf of himself and all others similarly situated, v. THE COCA-COLA COMPANY; COCA COLA REFRESHMENTS USA, INC.; COCA-COLA ENTERPRISES, INC.; KEYSTONE COCA-COLA AND BOTTLING AND DISTRIBUTION CORPORATION; KEYSTONE COCA-COLA BOTTLING CO.; KEYSTONE COCA-COLA BOTTLING COMPANY, INC.; KEYSTONE COCA-COLA BOTTLING CORPORATION; THOMAS WILLIAM ROGERS, III; DOE DEFENDANTS 1-50; ABC CORPORATIONS 1-50; XYZ PARTNERSHIPS AND ASSOCIATIONS, Shane E. Enslin, Appellant in No. 17-3153 The Coca-Cola Company; Coca Cola Refreshments USA, Inc., Coca-Cola Enterprises, Inc., Keystone Coca-Cola and Bottling and Distribution Corporation; Keystone Coca-Cola Bottling Company, Keystone Coca-Cola Bottling Company, Inc., Keystone Coca-Cola Bottling Corporation, Appellants in No. 17-3256, Case Nos. 17-3153, 17-3256 (3d Cir.), Judge Thomas Michael Hardiman of the U.S. Court of Appeals for the Third Circuit (a) affirmed the U.S. District Court for the Eastern District of Pennsylvania's order (i) granting summary judgment for Coca-Cola; (ii) denial of Enslin's motion for class certification notwithstanding a default judgment in his favor against Rogers; and (b) dismissed Coca-Cola's cross-appeal as moot. Enslin began his career as a Coca-Cola service technician in 1996 when he went to work for Keystone Coca-Cola, which was then an independent bottler and distributor of Coca-Cola products. In 2001, Keystone was acquired by Coca-Cola Enterprises, so Enslin and others had to complete new employment paperwork. Those forms asked for each employee's address, telephone number, social security number, and driver's license number. Enslin worked for Coca-Cola Enterprises for several years after the Keystone acquisition, but left the company in 2007. Coca-Cola alerted Enslin and the other affected employees of the breach. The company attempted to recover the stolen computers, but Rogers had given some of the laptops away, and Coca-Cola cannot definitively say it found them all. Sometime after Enslin learned of the breach, his accounts with several internet retailers were compromised and used to make unauthorized purchases. Enslin does not know who accessed his accounts or how they did so. He did not have to pay any of the fraudulent charges. After the compromise of his retail accounts, Enslin filed the putative class action against Coca-Cola and Rogers in the District Court. He asserted claims under Pennsylvania law for breach of contract, negligence, negligent misrepresentation, fraud, unjust enrichment, bailment, and conspiracy, as well as a claim under the federal Drivers Privacy Protection Act. Rogers did not appear, but Coca-Cola did and moved to dismiss Enslin' complaint for failure to state a claim. The District Court held that Enslin had adequately pleaded claims for breach of contract and unjust enrichment, but otherwise granted Coca-Cola's motion and dismissed the rest of Enslin's complaint. Following discovery, Coca-Cola and Enslin filed cross-motions for summary judgment. Enslin also moved to certify a class and to amend his complaint. Coca-Cola sought judgment with respect to Enslin's contract claims on the theory that they were preempted by federal labor law. Although the Court rejected that preemption argument, it nevertheless granted summary judgment for Coca-Cola on other grounds, denied Enslin's motion to amend, and denied his motion for class certification as moot. Enslin moved for reconsideration with respect to the District Court's summary judgment, which the Court denied in a comprehensive opinion. Meanwhile, over the course of nearly three years of litigation, Rogers never appeared to defend against Enslin's claims. So shortly after entering summary judgment in favor of Coca-Cola, the District Court entered a default judgment against Rogers for $17 (the amount it cost Enslin to buy checks for the new checking account he opened after his retail accounts were compromised). That judgment ran in Enslin's favor only, since the District Court had previously rejected Enslin's request to enter judgment against Rogers on a classwide basis. Enslin and Coca-Cola filed timely notices of appeal. Enslin's appeal presents four issues. He challenges: (1) the summary judgment on his contract claims; (2) the dismissal of his negligence claim; (3) the denial of his motion to amend his complaint to replead a claim under the Drivers Privacy Protection Act; and (4) the dismissal of his motion for class certification as moot with respect to Rogers. Judge Hardiman finds that all of the damages that Enslin seeks flow from the compromise of his retail accounts rather than directly from Rogers' theft of his personal information. But he provides no evidence from which a reasonable jury could conclude that his accounts were compromised because information was gleaned from the stolen laptops. So breach or no breach, Enslin's contract claims fail because he cannot show he was damaged as a result of Coca-Cola's conduct. The Judge will affirm the District Court's summary judgment as well as its order denying Enslin's motion for reconsideration for that reason. Turning to Enslin's negligence claim, the Judge cannot say the Court abused its discretion in dismissing his negligence claim with prejudice. Enslin did not -- and still does not -- propose any amendment that would overcome his failure to plead a non-economic loss. Enslin's other attempt to revive his negligence claim fares no better. Enslin asks the Court to certify to the Pennsylvania Supreme Court two questions concerning the continued viability of the economic loss doctrine in the data breach context. The Judge declines to do so because certification would be futile. A claim for negligence, like a claim for breach of contract, requires proof of causation, and he Court has already explained that Enslin cannot meet that burden. Because certification would only "delay these proceedings" without affecting the outcome of the case, the Judge will deny Enslin's motion. Enslin's third argument involves the Drivers Privacy Protection Act ("DPPA"). The District Court dismissed Enslin's DPPA claim for failure to plead a "knowing disclosure." It later denied Enslin's motion for leave to replead his DPPA claim, holding that the request was untimely and futile. Judge Hardinman will affirm because Enslin's proposed DPPA claim would have been time-barred. Even assuming that it was an unlawful disclosure for purposes of the DPPA, it still occurred more than four years before Enslin filed the suit on Nov. 12, 2014. Finally, Enslin claims the District Court erred when it denied his belated request to certify a class based on an entirely new theory of liability. The Judge disagrees. Enslin had never in nearly three years of litigation pleaded that Coca-Cola could be held vicariously liable. The District Court did not abuse its discretion by refusing to entertain Enslin's request to, in effect, reboot the case after summary judgment had already been granted. Because he will affirm the District Court's summary judgment, the Judge says he needs not consider whether it could or should have reached the same result based on federal labor law. Accordingly, he will dismiss Coca-Cola's cross-appeal as moot. For the foregoing reasons, Judge Hardiman affirmed the orders of the District Court, denied Enslin's motion to certify a question of law to the Pennsylvania Supreme Court, and dismissed Coca-Cola's cross-appeal as moot. A full-text copy of the Third Circuit's June 20, 2018 Opinion is available at https://bit.ly/2O56Z8o from Leagle.com. COLISEUM BAR: Court Conditionally Certifies Class of Employees -------------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, granting Plaintiffs' Motion for Conditional Class Certification in the case captioned JANE DOES 1, 2 and 3, individually and on behalf of all other similarly situated, Plaintiffs, v. THE COLISEUM BAR & GRILL, INC., ABCDE OPERATING, LLC d/b/a The Penthouse Club, M & M ZIN ENTERPRISES, INC., JOHNI SEEMA, AND ALAN MARKOVITZ, Defendants, Civil Case No. 17-12212 (E.D. Mich.). This lawsuit arises from the Fair Labor Standards Act (FLSA) and the Michigan Minimum Wage Law (MWL). The Plaintiffs allege Defendants misclassified them and similarly situated workers as independent contractors to circumvent the protections of federal and state wage laws. The Plaintiffs request a collective action class defined as: All exotic dancers, shot girls, bouncers, DJs and any other individuals who worked for the Defendants and were misclassified by Defendants as independent contractors at any time in the past three years. The Plaintiffs allege that all of the the Plaintiffs and potential class members are exotic dancers, shot girls, bouncers, DJs, and any other individual who worked for the Clubs within the last three years. According to the Plaintiffs, they all suffered from the Defendants' uniform policy of not paying wages to their employees. The Defendants argue that any other employee is vague, and the work hours, locations, and duties of bouncers, waitresses, and shot girls are vastly different from exotic dancers. The Plaintiffs provide declarations from the Plaintiffs and a number of opt-in Plaintiffs attesting to the Defendants' policy of not paying wages. The declarations are from former and current exotic dancers, a shot girl/waitress, and a DJ. Each declarant worked at the Clubs at various times spanning from 2007 through 2017, working 7 to 8 hour shifts, three or more times a week. All of the dancers, including a former waitress and shot girl were required to check out with the DJ at the end of their shift or at closing to pay tip-outs. The DJ also stated that he was required to tip-out. The Defendants argue that the alleged tip-outs are specific to the dancers and undermine any showing that the Plaintiffs are similarly situated to other employees. Although the dancers were specific about how their tip-outs were allocated, the allocation of the tip-outs are irrelevant to determining if the Plaintiffs are similarly situated to the class members. Therefore, for purposes of conditional certification, the Court finds that the Plaintiffs are similarly situated to the putative class members. A full-text copy of the District Court's July 16, 2018 Opinion and Order is available at https://tinyurl.com/y992tbpu from Leagle.com. Jane Doe - 1, Jane Doe - 2 & Jane Doe - 3, Plaintiffs, represented by Beth M. Rivers -- brivers@pittlawpc.com -- Pitt, Dowty, Megan Bonanni -- mbonanni@pittlawpc.com -- Pitt, McGehee & Jennifer Lossia McManus , Fagan McManus, P.C. ABCDE Operating, LLC, d/b/a The Penthouse Club & Alan Markovitz, Defendants, represented by Andrew J. Bean , Jay A. Schwartz , Schwartz Law Firm & Mary A. Mahoney , Schwartz Law Firm. The Coliseum Bar & Grill, Inc. a Michigan corporation & Johni Seema, Defendants, represented by Joseph N. Ejbeh , O'Reilly Rancilio, P.C., Nina M. Paolini-Lotarski , O'Reilly Rancilio, P.C. & Paul B. Addis , APA LAW OFFICE, PLLC. M & M Zin Enterprises, Inc., Defendant, represented by Andrew J. Bean & Jay A. Schwartz , Schwartz Law Firm. COMCAST CABLE: Can Send C. Zacher's TCPA Suit to Arbitration ------------------------------------------------------------ In the case, CHASON ZACHER, Plaintiff, v. COMCAST CABLE COMMUNICATIONS LLC, Defendant, Case No. 17 CV 7256 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Defendant's motion to compel arbitration. Zacher, alleges in the putative class action that Comcast violated the Telephone Consumer Protection Act ("TCPA"), when it called his cellular telephone in August 2017, looking for the account holder for a specific address. Comcast moves to compel arbitration and stay the action on the basis that Zacher previously entered into a Subscriber Agreement with Comcast that requires arbitration of the parties' disputes. In support of its motion, Comcast submits the declaration of Nicole Patel, a Comcast Director of Regulatory Compliance, who states that Comcast's business records reflect that Zacher is listed as a contact for a Comcast account that was opened in August 2011 and registered to Alpha Epsilon Pi. In response to Comcast's motion, Zacher submits a declaration in which he states that he set up his Comcast service himself, so a Comcast service technician never provided him with a professional installation. He denies that he was "provided a copy" of the Subscriber Agreement and says that he never agreed to its terms and first became aware of the existence of the arbitration clause when Comcast filed its motion to compel arbitration. In reply, Comcast argues that because it routinely provides a copy of the Subscriber Agreement to all subscribers, regardless of whether they install their own service or have a Comcast technician install the service, Zacher's averments are insufficient to raise a genuine issue of fact as to whether the parties entered into a contract. Judge Guzman finds that Comcast has presented evidence through Patel's declarations that Comcast mailed Zacher a self-install kit for the Normal Road account and that Comcast's routine business practice at the relevant time was to provide customers with a hard copy of the Subscriber Agreement in the self-install kit. Zacher's general denial that he "was provided" with the Subscriber Agreement "as part of the set-up" of service is not enough to overcome this presumption. The FAA does not require agreements to be signed, only written. Accordingly, Comcast has shown that the parties entered into an enforceable written agreement to arbitrate. In addition, the Judge also finds that there is clear evidence that the parties agreed to arbitrate the issue of whether the dispute is within the scope of their arbitration agreement. Zacher's citation to Granite Rock is unavailing because it is taken out of context and fails to acknowledge the qualifier that immediately follows the quoted statement -- where there is no provision validly committing formation or applicability issues to an arbitrator. It is clear from the Court's discussion in Granite Rock that a court must resolve issues of an arbitration clause's scope unless the parties have clearly and unmistakably delegated those issues to an arbitrator. Zacher and Comcast clearly and unmistakably did so. Therefore, the Judge will compel arbitration, and the scope issue can be raised before the arbitrator. For these reasons, Judge Guzman granted the Defendant's motion to compel arbitration. The arbitration will proceed. Therefore, the lawsuit is administratively dismissed without prejudice subject to full reinstatement, if requested by either party, upon completion of the required arbitration. The civil case terminated. A full-text copy of the Court's June 20, 2018 Memorandum Opinion and Order is available at https://bit.ly/2LJQ3HV from Leagle.com. Chason Zacher, individually and on behalf of all others similarly situated, Plaintiff, represented by David Louis Gerbie -- info@mcgpc.com -- Mcguire Law, P.c. Comcast Cable Communications, LLC, Defendant, represented by Bradley Joseph Andreozzi -- bradley.andreozzi@dbr.com -- Drinker Biddle & Reath LLP & Matthew M. Morrissey -- matthew.morrissey@dbr.com -- Drinker Biddle & Reath LLP. COMCAST CABLE: Can't Compel Arbitration of R. Chacon's TCPA Suit ---------------------------------------------------------------- In the case, ROLANDO CHACON, Plaintiff, v. COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC AND DOES 1-10, Defendants, Case No. 17 CV 8434 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Defendant's motion to compel arbitration and stay litigation. Chacon alleges in the putative class action that Comcast violated the Telephone Consumer Protection Act ("TCPA"), when it repeatedly called him in February and March 2017, asking for someone named Luke Johns or Luke Johnson. Comcast moves to compel arbitration and stay this action on the basis that Chacon entered into a Subscriber Agreement with Comcast that requires arbitration of the parties' disputes. In support of its motion, Comcast submits the declaration of Nicole Patel, a Comcast Director of Regulatory Compliance, who states that Comcast's business records reflect that Chacon subscribed to Comcast's Xfinity cable service for an apartment on South Harding Avenue in Chicago in late January 2015, and Chacon then received and paid for service in connection with his Comcast account until his service was disconnected in November 2016. Patel states that Comcast's regular business practice since prior to 2015 is for its installation technicians to provide Comcast's Subscriber Agreement to customers in connection with the installation and for the technicians to direct customers to read and accept the Subscriber Agreement when activating service. In response to Comcast's motion, Chacon submits a declaration in which he states that he previously had Comcast's Xfinity service, but no longer has an active Comcast account; he has no recollection that the Comcast installation technician who installed his service provided him with a Subscriber Agreement; he never signed or agreed to anything similar to the Subscriber Agreement attached to Patel's declaration; the telephone calls he received from Comcast did not relate to his previous Comcast Xfinity service, but to someone named Luke Johns or Luke Johnson; and he does not know anyone by those names. In reply, Comcast argues that Chacon's statement that he does not recall being provided with the Subscriber Agreement is insufficient to raise a genuine issue of fact as to whether it was provided to him, but to avoid any doubt, Comcast submits a supplemental declaration from Patel. Comcast contends that Chacon's claims "fall squarely" within its scope because Chacon's allegations that Comcast called his phone are indisputably related to an 'aspect' of his 'relationship' with Comcast. Comcast does not further explain how this is so. In response, Chacon asserts that they are not because the calls had nothing to do with the service Comcast had provided to him; the calls were not even intended for Chacon, but for a different individual who is a stranger to Chacon, and thus pertained to that individual's relationship with Comcast, not Chacon's. Judge Guzman agrees with Chacon. The Plaintiff alleges in the case that Comcast violated the TCPA by repeatedly making phone calls to him that were intended for another person. That is not a dispute regarding an aspect of Chacon's relationship with Comcast (which was a contractual relationship), so it does not fall within the plain language of the arbitration provision in the Subscriber Agreement. Because arbitration agreements are contracts, a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The Judge holds that the circumstances in the case stand in contrast to situations in which the Plaintiff subscribed to the Defendant's service, terminated that service, and subsequently received calls from the Defendant that pertained to the parties' relationship, such as calls attempting to collect an outstanding debt for the previous service. Chacon did not agree to arbitrate disputes that do not concern an aspect of his relationship with Comcast, so the Judge will not compel arbitration. In its reply brief, Comcast asserts that the issue of whether the dispute lies within the scope of the arbitration provision raises an issue for the arbitrator, not the Court, to decide, because the parties agreed to arbitrate even "gateway" questions of arbitrability. But Comcast raises the issue for the first time in its reply brief, so the Judge will not consider the argument. For these reasons, Judge Guzman denied the Defendant's motion to compel arbitration and stay litigation. A full-text copy of the Court's June 20, 2018 Memorandum Opinion and Order is available at https://bit.ly/2MbbNsl from Leagle.com. Rolando Chacon, Plaintiff, represented by Alex Jacob Levin, The Law Offices Of Todd M. Friedman, P.c., Todd M. Friedman, Law Offices of Todd M. Friedman & David B. Levin, Law Offices of Todd M. Friedman, P.C. Comcast Cable Communications, LLC, Defendant, represented by Bradley Joseph Andreozzi -- bradley.andreozzi@dbr.com -- Drinker Biddle & Reath LLP & Matthew M. Morrissey -- matthew.morrissey@dbr.com -- Drinker Biddle & Reath LLP. CONRAD CREDIT: Debt Collection Violates FDCPA, Hochstasser Says --------------------------------------------------------------- Matthew Hochstasser, individually and on behalf of all others similarly situated v. Conrad Credit Corporation, and John Does 1-25, Case No. 2:18-cv-04024 (E.D.N.Y., July 12, 2018), alleges that the Defendants' debt collection efforts attempted and directed towards the Plaintiff violated various provisions of the Fair Debt Collection Practices Act. Conrad Credit Corporation is a "debt collector" as the phrase is defined and used in the FDCPA with an address in Escondido, California. The Defendant 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.[BN] The Plaintiff is represented by: Daniel Kohn, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: dkohn@steinsakslegal.com CREDIT MANAGEMENT: Appeals Decision in Bassett Suit to 8th Cir. --------------------------------------------------------------- Defendants Credit Management Services, Inc. and Jason Morledge filed an appeal from a court ruling in the lawsuit styled Kelly Bassett v. Credit Management Services Inc., et al., Case No. 8:17-cv-00069-JFB, in the U.S. District Court for the District of Nebraska - Omaha. As reported in the Class Action Reporter on July 5, 2018, the Hon. Joseph F. Bataillon entered an order on June 28, 2018: 1. certifying a class of: "(i) all persons with addresses in Nebraska; (ii) to whom defendant CMS sent or served, or caused to be sent or served, between March 1, 2016, and July 31, 2016, a county court collection complaint in the form of (iii) in an attempt to collect an alleged unpaid medical account; (iv) that requested an award of statutory attorneys' fees and/or prejudgment interest pursuant to Neb. Rev. Stat. section 25-1801"; 2. appointing the law firms of Horwitz, Horwitz, and Car and Reinbrecht as class counsel; 3. denying Plaintiff's motion to exclude expert testimony consistent with this order; and 4. denying Defendants' motion for a hearing. The appellate case is captioned as Credit Management Services Inc., et al. v. Kelly Bassett, Case No. 18-8007, in the United States Court of Appeals for the Eighth Circuit.[BN] Plaintiff-Respondent Kelly Bassett, individually and as heir and Personal Representative of the Estate of James M. Bassett, on behalf of themselves and all others similarly situated, is represented by: Owen Randolph Bragg, Esq. HORWITZ, HORWITZ & ASSOC. 25 E. Washington Street, Suite 900 Chicago, IL 60602-0000 Telephone: (312) 372-8822 Facsimile: (312) 372-1673 E-mail: rand@horwitzlaw.com - and - Pamela A. Car, Esq. William L. Reinbrecht, Esq. CAR & REINBRECHT, P.C., LLO 8720 Frederick Street, Suite 105 Omaha, NE 68124-0000 Telephone: (402) 391-8484 Facsimile: (402) 391-1103 E-mail: pacar@cox.net billr205@gmail.com Defendants-Petitioners Credit Management Services, Inc., and Jason Morledge are represented by: Jessica Lee Prom Klander, Esq. BASSFORD REMELE 100 S. Fifth Street, Suite 1500 Minneapolis, MN 55402 Telephone: (612) 376-1615 E-mail: jklander@bassford.com - and - Christopher R. Morris, Esq. BASSFORD REMELE 33 S. Sixth Street, Suite 3800 Minneapolis, MN 55402-3707 Telephone: (612) 333-3000 E-mail: cmorris@bassford.com CREDIT ONE: Can Compel Arbitration of J. Croucier's TCPA Suit ------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendant's Motion to Compel Arbitration in the case captioned JESSE CROUCIER, Plaintiff, v. CREDIT ONE BANK, N.A., et al., Defendant, Case No. 18cv20-MMA (JMA) (S.D. Cal.). Plaintiff Jesse Croucier brings this action against Defendant Credit One Bank, N.A. (Credit One) alleging causes of action for: (1) violations of California's Rosenthal Fair Debt Collection Practices Act, California Civil Code (2) violations of the Telephone Consumer Protection Act and (3) violations of California's Unfair Competition Law, California Business and Professional Code. The Federal Arbitration Act (FAA) permits a party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration to petition any United States District Court for an order directing that arbitration proceed in the manner provided for in the arbitration agreement. Upon a showing that a party has failed to comply with a valid arbitration agreement, the district court must issue an order compelling arbitration. While the Plaintiff alleges Credit One's regular business practice is to collect upon defaulted debts from multiple consumers through the use of phone calls to California Citizens' cellphones using ATDS and/or Recorded voice, this conduct does not violate the statutes the Plaintiff invokes when consumers have consented to such contact, as Credit One's customers do via the Cardholder Agreement. The Plaintiff does attach the modifying phrase, as part of Credit One's regular business practice, to at least one allegation of unlawful conduct direct toward the Plaintiff, but as the court observed in Wright, such vague, generalized allegations do not request public relief. Even if the Plaintiff had specifically alleged a regular practice of continuing ATDS collection calls after revocation of consent, the putative class affected by the alleged conduct would be limited to a small group of individuals similarly situated to the plaintiff. The class would consist of (1) Credit One customers, (2) who failed to make timely payments, (3) expressly revoked consent to receive ATDS calls, and (4) continued to receive such calls. Relief benefiting this particularized group stands in contrast to the public relief requested in McGill Cal. 5th at 955, which sought to enjoin Citibank from engaging in unlawfully deceptive marketing practices directed at the general public. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/yabpopum from Leagle.com. Jesse Croucier, Plaintiff, represented by Ahren A. Tiller -- ahren.tiller@blc-sd.com -- BLC Law Center, APC. Credit One Bank, N.A., Defendant, represented by Brett B. Goodman -- bgoodman@yumollp.com -- Yu Mohandesi LLP. DANELL CUSTOM: Billing Records Can Be Filed Partly Under Seal ------------------------------------------------------------- In the case, FRANCISCO RODRIGUEZ, et al., Plaintiffs, v. DANELL CUSTOM HARVESTING, LLC, et al., Defendants, Case No. 1:16-cv-01848-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California granted in part and denied in part the Plaintiffs' motion to file billing records under seal. On June 8, 2018, the Plaintiffs' filed an unopposed motion for final approval of a class action settlement in the matter. They also submitted billing records for in camera review. On June 11, 2018, an order issued requiring the Plaintiffs to file the billing records in the public record or submit a request to seal. The Plaintiffs were advised that they must show compelling reasons to file documents under seal in this instance. On June 13, 2018, the Plaintiffs filed a request to file the billing records under seal. They seek to seal the records on the ground that they are protected by attorney-client privilege and are attorney work product. Magistrate Judge Boone finds that the Plaintiffs' request to file the billing records under seal is overbroad as a cursory review of the records shows that they contain the general nature of the services performed which is not entitled to either attorney client privilege or protected by the work product doctrine. Even where the records contain the purpose of communication with class members or potential class members, such as for obtaining factual background or to obtain forms or documents, it is not clear how this would reveal litigation strategy. He says there are certain entries that include researching certain areas of law that would fall within the exception identified in Clarke v. Am. Commerce Nat. Bank, but these limited entries could be redacted to protect any privileged information. Accordingly, Magistrate Judge Boone granted in part and denied in part the Plaintiffs' request to file billing records under seal. The Plaintiffs' will (i) redact only those limited portions of the billing records that reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law; (ii) file the redacted copy of the billing records within 10 days from the date of entry of the Order; (iii) file the unredacted copies of the billing records under seal within 10 days from the date of entry of the Order; and (iv) file the request to seal documents upon receipt of the Order. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/kw2xUW from Leagle.com. Francisco Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan Manuel Bravo, Estela Patino, Jose F. Orozco & Antonio Ortiz, Plaintiffs, represented by Enrique Martinez, Law Offices of John E. Hill. Danell Custom Harvesting, LLC, a California Company, Rance Danell, Eric Danell, David Danell & Justin Danell, Def endants, represented by Howard A. Sagaser -- has@sw2law.com -- Sagaser, Watkins & Wieland, PC, Ian Blade Wieland -- ian@sw2law.com -- Sagaser, Watkins & Wieland, PC & William M. Woolman -- bill@sw2law.com -- Sagaser, Watkins & Wieland PC. DENKA PERFORMANCE: Removes Butler Suit to E.D. Louisiana -------------------------------------------------------- The Defendants in the case of JUANEA L BUTLER, individually and on behalf of all others similarly situated, Plaintiff v. DENKA PERFORMANCE ELASTOMER LLC; E.I. DUPONT DE NEMOURS AND COMPANY; LOUISIANA STATE, THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS; LOUISIANA STATE THROUGH THE DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendants, filed a notice to remove the lawsuit from the Judicial District Court of the State of Louisiana, Parish of St. John the Baptist, (Case No. 72327) to the U.S. District Court for the Eastern District of Louisiana and assigned Case No. 2:18-cv-06685-MLCF-KWR (E.D. La., July 13, 2018). The case is assigned to Judge Martin L.C. Feldman and referred to Magistrate Judge Karen Wells Roby. Denka Performance Elastomer LLC manufactures and sells chloroprene rubber. The company is based in the United States. Denka Performance Elastomer LLC operates as a subsidiary of Denki Kagaku Kogyo Kabushiki Kaisha.[BN] The Plaintiff is represented by: Danny Dustin Russell, Esq. RUSSELL LAW FIRM, LLC 733 E. Airport Ave, Suite 201 Baton Rouge, LA 70806 Telephone: (225) 307-0088 E-mail: danny@dannyrusselllaw.com The Defendants are represented by: James Conner Percy, Esq. JONES WALKER (BATON ROUGE) 8555 United Plaza Blvd., 5th Floor Baton Rouge, LA 70809 Telephone: (225) 248-2130 E-mail: jpercy@joneswalker.com - and - Brett S. Venn, Esq. JONES WALKER (NEW ORLEANS) 201 St. Charles Ave., 50th Floor New Orleans, LA 70170 Telephone: (504) 582-8116 E-mail: bvenn@joneswalker.com - and - Justin J. Marocco, Esq. JONES WALKER (BATON ROUGE) 8555 United Plaza Blvd., 5th Floor Baton Rouge, LA 70809 Telephone: (225) 248-2415 E-mail: jmarocco@joneswalker.com - and - Michael A. Chernekoff, Esq. JONES WALKER (HOUSTON) 811 Main Street, Suite 2900 Houston, TX 77002 Telephone: (713) 437-1827 E-mail: mchernekoff@joneswalker.com - and - Michael R. Rhea, Esq. JONES WALKER 8555 United Plaza Blvd., 5th Floor Baton Rouge, LA 70809 Telephone: (225) 248-2190 E-mail: mrhea@joneswalker.com - and - Deborah DeRoche Kuchler, Esq. Joshua Doguet, Esq. KUCHLER POLK WEINER, LLC (NEW ORLEANS) 1615 Poydras St., Suite 1300 New Orleans, LA 70112 Telephone: (504) 592-0691 E-mail: dkuchler@kuchlerpolk.com jdoguet@kuchlerpolk.com - and - Bradley H Weidenhammer, Esq. Kevin T Van Wart, Esq. Rebecca C Fitzpatrick, Esq. Stanley M Wash, Esq. KIRKLAND & ELLIS, LLP (CHICAGO) 300 North LaSalle Street Chicago, IL 60654 Telephone: (312) 862-2000 E-mail: bradley.weidenhammer@kirkland.com kevin.vanwart@kirkland.com rebecca.fitzpatrick@kirkland.com stan.wash@kirkland.com - and - Sarah E. Iiams, Esq. KUCHLER POLK SCHELL WEINER & RICHESON, L.L.C. 1615 Poydras Street, Suite 1300 New Orleans, LA 70112 Telephone: (504) 592-0691 Facsimile: (504) 592-0696 E-mail: siiams@kuchlerpolk.com DIET WORKS: Faces Fraud Class Action in New Jersey -------------------------------------------------- Karen Kidd, writing for Legal Newsline, reports that three diet supplement companies defending themselves against allegations of fraud and other charges told a federal judge in New Jersey July 19 that plaintiffs are barred from prevailing in the case because they can't prove injury or loss and that their claims are "de minimis," or trivial. In their 21-page answer filed July 19 in U.S. District Court for New Jersey, Diet Works, VitaQuest Intl. and Windmill Health Products listed 22 separate defenses denying that plaintiffs in the class action are entitled relief. "Plaintiffs' claims are barred, in whole or in part, because neither she nor any putative class member suffered any cognizable injury or loss," the answer said. "Further, plaintiffs and the putative class' alleged damages are de minimis, and/or are too speculative, and/or are too remote, and/or are impossible to prove and/or allocate." The defendant companies asked U.S. District Court Judge Madeline Cox Arleo to dismiss the case with prejudice and to award defendants "reasonable attorneys' fees, interest, cost of suit and other relief as the court deems just." The defendant companies in the case filed their answer and separate defenses in response to the consolidated amended class complaint by plaintiffs Jacqueline Greek, Joyce Puccio, Renee Shoaf and Pamela Parra. Greek filed the original complaint in the case last summer, following her purchase of Garcinia Cambogia in 2015, alleging false claims about how much hydroxycitric acid is present in its Diet Works Garcinia Cambogia supplement. Plaintiffs in the case allege the companies commit at least five false and misleading claims in marketing Garcinia Cambogia, including "healthy weight management," "promotes weight loss," "inhibits fat production," "suppresses carbohydrate cravings," and that it is "the all-natural way to help reduce your appetite, burn more calories and suppress carbohydrate cravings to make losing weight faster and easier than ever!" The plaintiffs claim marketing of Garcinia Cambogia violates the New Jersey Consumer Fraud Act and Pennsylvania's Unfair Trade Practices and Consumer Protection and breaches express and implied warranties under Pennsylvania and New Jersey law. Judge Arleo issued an opinion in April, following a defense motion to dismiss, in which she dismissed three of the plaintiffs' nine counts but granted leave for those counts to be repleaded. In their answer, the defendants describe Windmill as a New Jersey limited liability company based in West Caldwell that is a wholly owned subsidiary of Iron Horse, which is itself a wholly owned subsidiary of Generic LLC, owned by Keith Frankel. The answer also described VitaQuest as a wholly owned subsidiary of Vitaquest International Holdings, which is itself a wholly owned subsidiary of Vitaquest Investments Inc. and Bonjoint LLC, the latter being a wholly owned subsidiary of CK Life Sciences. Both Windmill and VitaQuest maintain their principal place of business on Henderson Drive in West Caldwell, according to the answer. The answer was filed on behalf of the defendant companies by attorneys Shawn L. Kelly and Jonathan D. Henry, partner and senior managing associate with Dentons US in Short Hills, New Jersey. [GN] DOLGEN LLC: Partial Summary Judgment Bid in "Fielding" Granted -------------------------------------------------------------- Judge John A. Gibney, Jr., of the U.S. District Court for the Eastern District of Virginia, Richmond Division, granted the Defendant's motion for partial summary judgement in the case, ELLEANA FIELDING, on behalf of herself and all others similarly situated Plaintiffs, v. DOLGEN, LLC t/a DOLGENCORP, LLC and BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendants, Civil Action No. 3:17-cv-561-JAG (E.D. Va.). Fielding brings a purported class action against her former employer, Dollar General for failure to pay retail managers overtime under the Fair Labor Standards Act ("FLSA") by improperly classifying the managers as exempt employees. She also claims that Dollar General and Blue Cross Blue Shield failed to provide her with notice of her right to continued health insurance following her termination. Dollar General moved to compel arbitration, and the Court determined that the Federal Arbitration Act entitled her to a jury trial on the issue of whether Fielding actually entered into the purported arbitration agreement. The parties conducted discovery on the issue, and the Court granted the Defendant leave to file for summary judgment. Fielding began work as a manager with Dollar General on Aug. 2, 2014. All Dollar General employees have access to an employee portal called DGme, by using a unique employee ID and password. Within the portal, employees may view certain information including Dollar General's Arbitration Agreement. Once an employee accessed the agreement, they had the option to review the Agreement, print the American Arbitration Agreement ("AAA") rules, and review and print the opt-out form to opt out of the Agreement. The Agreement stated that the employee had the ability to opt out of the agreement, but must do so by filing out the electronic opt-out form. It said that failure to opt out would result in the employee being bound to the terms of the Agreement. After an employee reviewed the agreement, the DGme portal provided the employee with the option to either (1) opt out at that time or (2) to take 30 days to review the agreement and decide. The employee had to choose the opt-out now option or the 30-day review option and then type in his or her name as a signature. Dollar General's electronic records indicate that Fielding viewed the Agreement through the DGme portal on Aug. 5, 2014. She chose the 30-day review option and typed in her name. She looked at the Agreement again on Aug. 22, 2014, and again chose the 30-day review option and typed in her name as her electronic signature. Fielding says that she was very busy in her first weeks and months of employment and that she does not recall seeing the Agreement in her DGme portal. In her opposition to the motion for summary judgment, Fielding makes the unsupported assertion that she never signed nor submitted an executed arbitration agreement through the DGme portal or otherwise, but also says that she was "swamped" during that time period and she cleared any and all alerts on DGme as quickly as possible with the minimum of attention so she could focus on her operational duties. Fielding points out that the screen shots of the DGme portal submitted by Dollar General differed from the screen shots she actually saw, but she does not contest the veracity of the electronic records showing that she chose and signed the 30-day review option and that the option said that failure to opt out would result in her being bound by the Agreement's terms. Judge Gibney finds that the undisputed facts show that Fielding signed the 30-day review provision on her DGme portal, and that her signature, along with her failure to opt-out of the arbitration agreement within 30 days, bound her to the terms of the Agreement. He therefore granted the motion for partial summary judgment. The Court will enter an appropriate Order. The Clerk is directed to send a copy of the Opinion to all the counsel of record. A full-text copy of the Court's June 19, 2018 Opinion is available at https://is.gd/AgWtas from Leagle.com. Elleana Fielding, on behalf of herself and all others similarly situated, Plaintiff, represented by James Richard Theuer -- jim@theuerlaw.com -- James R. Theuer, PLLC. Dolgen, LLC, trading as Dolgencorp, LLC, Defendant, represented by Joel Steven Allen, Morgan Lewis & Bockius LLP, pro hac vice, Melissa M. Hensley -- mhensley@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Sara Beth Hall -- sbhall@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Summer Laine Speight -- sspeight@mcguirewoods.com -- McGuireWoods LLP. BlueCross BlueShield of Tennessee, Defendant, represented by Edwin Ford Stephens -- estephens@cblaw.com -- Christian & Barton LLP. DOWNTOWN TOWING: Petraglia Seeks to Recover OT Pay Under FLSA ------------------------------------------------------------- GIOVANNA PETRAGLIA, and all others similarly situated v. DOWNTOWN TOWING COMPANY, a Florida Corporation, TIMOTHY RYAN DEL ROSAL, individually, BRANDON RAY DEL ROSAL, individually, and ZACHARY ROBERT DEL ROSAL, individually, Case No. 1:18-cv-22733-DPG (S.D. Fla., July 6, 2018), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for the Defendants' alleged willful violations of overtime wages under the Fair Labor Standards Act. Downtown Towing is a Florida corporation, which regularly conducted business within the Southern District of Florida as a tow truck company. The Individual Defendants are "employers" as defined in the FLSA, as they have operational control over the Defendant corporation.[BN] The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Telephone: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Telephone (305) 773-6661 E-mail: mamane@gmail.com DR PEPPER: Appeals Cert. Order in Fitzhenry-Russell to 9th Cir. --------------------------------------------------------------- Defendants Dr. Pepper Snapple Group, Inc. and Dr. Pepper/Seven Up, Inc., filed an appeal from the District Court's class certification order entered in the lawsuit styled Jackie Fitzhenry-Russell, et al. v. Dr. Pepper Snapple Group, Inc., et al., Case No. 5:17-cv-00564-NC, in the U.S. District Court for the Northern District of California, San Jose. As previously reported in the Class Action Reporter, the Hon. Nathanael M. Cousins entered an order: 1. granting Plaintiffs' class certification motion, and certifying a class of: "all persons who, between December 28, 2012 and the present, purchased any Canada Dry Ginger Ale products in the state of California"; 2. appointing Fitzhenry-Russell and Margaryan as class representatives; 3. appointing Gutride Safier LLP and the Margarian Law Firm as class counsel. The appellate case is captioned as DR PEPPER SNAPPLE GROUP, INC. AND DR PEPPER/SEVEN UP, INC., Defendants-Petitioners v. JACKIE FITZHENRY-RUSSELL AND GEGHAM MARGARYAN, INDIVIDUALS, ON BEHALF OF THEMSELVES, THE GENERAL PUBLIC AND THOSE SIMILARLY SITUATED, Plaintiffs-Respondents, Case No. 18-80081, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents JACKIE FITZHENRY-RUSSELL and GEGHAM MARGARYAN, Individuals, on behalf of themselves, the general public and those similarly situated, are represented by: Adam Joshua Gutride, Esq. Seth Adam Safier, Esq. Kristen G. Simplicio, Esq. GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, CA 94114 Telephone: (415) 271-6469 E-mail: adam@gutridesafier.com seth@gutridesafier.com Kristen@gutridesafier.com - and - Matthew Thomas McCrary, Esq. GUTRIDE SAFIER LLP 265 Franklin Street Boston, MA 02110 Telephone: (415) 639-9090 E-mail: matt@gutridesafier.com Defendants-Petitioners DR. PEPPER SNAPPLE GROUP, INC., and DR. PEPPER/SEVEN UP, INC., are represented by: Van Beckwith, Esq. BAKER BOTTS LLP 2001 Ross Avenue Dallas, TX 75201-2980 Telephone: (214) 953-6505 E-mail: van.beckwith@bakerbotts.com - and - Evan Young, Esq. BAKER BOTTS LLP 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 Telephone: (512) 322-2554 E-mail: evan.young@bakerbotts.com - and - Ariel D. House, Esq. Jonathan A. Shapiro, Esq. BAKER BOTTS LLP 101 California Street, Suite 3600 San Francisco, CA 94111 Telephone: (415) 291-6200 Facsimile: (415) 291-6225 E-mail: ariel.house@bakerbotts.com jonathan.shapiro@bakerbotts.com DR PEPPER: Fletcher Sues Over Ginger Ale's Deceptive Labeling ------------------------------------------------------------- JULIE FLETCHER, on behalf of herself and all others similarly situated v. DR. PEPPER SNAPPLE GROUP, INC., DR. PEPPER/SEVEN UP, INC., Case No. 1:18-cv-00766 (W.D.N.Y., July 11, 2018), concerns DPSG's alleged false and deceptive labeling, advertising, marketing, and sale of the soft drink, Canada Dry Ginger Ale, as "MADE FROM REAL GINGER." Dr. Pepper Snapple Group, Inc., is a corporation existing under the laws of the state of Delaware, having its principal place of business in Plano, Texas. Dr. Pepper/Seven Up, Inc., is a corporation existing under the laws of the state of Delaware, having its principal place of business in Plano. It is a wholly owned subsidiary of Dr. Pepper Snapple Group, Inc. DPSG manufactures, distributes, markets, advertises, and sells soft drinks in the United States under several brand names, including "Canada Dry."[BN] The Plaintiff is represented by: Michael J. DeBenedictis, Esq. DEBENEDICTIS & DEBENEDICTIS LLC 20 Brace Road, Suite 350 Cherry Hill, NJ 08034 Telephone: (856) 795-2101 E-mail: mjd@debenedictislaw.com - and - Seth Safier, Esq. Matthew T. McCrary, Esq. GUTRIDE SAFIER LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 336-6545 E-mail: seth@gutridesafier.com matt@gutridesafier.com EPIC SYSTEMS: Employees May File Individual Unpaid OT Claims ------------------------------------------------------------ Kate Monica, writing for EHR Intelligence, reports that up to 1,500 quality assurance and technical writers at Epic Systems may file wage and working hours claims through individual arbitration after the health IT company won a major Supreme Court labor law case that barred employees from filing a class action lawsuit over the disputes. The ongoing cases involve unpaid overtime claims for salaried employees dating back to 2012, according to a report from WKOW. Habush, Habush, & Rottier attorney Breanne Snapp -- bsnapp@habush.com -- represented the Epic employees in the October 2017 Supreme Court case. She told WKOW reporters the workers will continue to push for compensation as individuals rather than as a group. The case was brought to trial by technical writer Jacob Lewis. Lewis alleged Epic failed to compensate him and other technical writers appropriately for overtime pay and filed a complaint against Epic in federal court. However, Epic motioned to dismiss the lawsuit and compel individual arbitration since Lewis had signed an arbitration agreement when he was first hired at Epic. Employees sign arbitration agreements in order to work at Epic Systems. Workers consent to losing the ability to pursue work-related claims through class or collective action. In May 2018, the Supreme Court ruled in favor of Epic Systems in a 5-4 decision. In the majority opinion, Justice Neil Gorsuch stated the employees could not file a class action lawsuit against their employer over individual wage and working hours claims because they signed arbitration agreements upon gaining employment at Epic. In light of the Supreme Court ruling, Epic Systems employees may now pursue their wage and working hour complaints individually, Ms. Snapp told WKOW. "Instead of the cases being resolved efficiently in one class action trial, we may have a thousand arbitrations instead," she said. While many workers who filed overtime claims against the health IT company still work for Epic Systems, several hundred have likely left for other opportunities, according to Ms. Snapp. "Workers have begun filing unpaid overtime claims individually, some going back to 2015, but none have yet been paid," she said. Epic will pay for the individual arbitration and most of the filing fees, according to WKOW. In 2014, Epic settled a similar overtime case that ultimately cost the health IT company about $5.4 million. Epic has not responded to a request for comment from WKOW. Beyond requiring Epic employees to file over a thousand individual arbitrations, Epic v. Lewis may also have big implications for workers' rights to file class action lawsuits. The case centered on whether the National Labor Relations Act permits employers to wave employees' rights to pursue claims in a class action or collective action lawsuit in arbitration agreements. "Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?" stated Justice Gorsuch in the majority opinion. "Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?" Epic Systems and its co-petitioners argued the arbitration waiver did not violate the National Labor Relations Act and is protected under the Federal Arbitration Act. In agreement with Epic, Justice Gorsuch stated the National Labor Relations Act "secures to employees the rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum." "Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties' agreements unlawful," he continued. The court's decision could make it more difficult for employees to address workplace complaints in class action lawsuits in the future. [GN] ERICSSON INC: J. Nguyen's Wage & Hour Suit Remains in Dist. Court ----------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, denied Plaintiffs' Motion to Remand the case captioned JOHN NGUYEN, Plaintiff, v. ERICSSON, INC., et al., Defendants, Case No. 5:17-cv-06453-EJD (N.D. Cal.). The Plaintiff filed a class action complaint in Santa Clara Superior Court against the Defendants claiming violations of California wage and hour laws, including failure to pay all wages owed, failure to pay overtime, failure to provide rest and meal breaks, failure to provide accurate wage stubs, and failure to provide employee files upon request. The Defendant 4G removed the action to this Court under the provisions of 28 U.S.C. Section 1332(a) and pursuant to 28 U.S.C. Section 1441(a). The Plaintiff moves to remand the putative class action to Superior Court of Santa Clara pursuant to 28 U.S.C. Section 1447(c) on the basis that Defendant 4G has failed to show the requisite subject matter jurisdiction over the claims. Defendant 4G claims that the case was properly removed to federal court on the basis of diversity jurisdiction. First, Defendant 4G contends that Defendant Michael Wilcox is a sham defendant who cannot be held personally liable for the alleged wage and hour violations. Second, Defendant 4G contends that the amount in controversy is more likely than not over $75,000. A person can only be liable for violations of California Labor Code, and therefore can only have a viable California Labor Code claim brought against him or her, if the person is an owner, director, officer or managing agent of the employer. Here, Plaintiff seeks to hold Wilcox liable as a managing agent. As a preliminary matter, the allegations in the complaint fail to establish that Wilcox was a managing agent of the employer, as required by California Labor Code section 558.1(b). THe Plaintiff alleges that at the time he reported to Wilcox, the Plaintiff was employed by Networkers or 4G, and that these companies contracted to provide workers to Ericsson. Wilcox was employed by Ericsson, not Networkers or 4G. The Plaintiff does not allege that Wilcox was the managing agent of Networkers or 4G. On this basis alone, there is no possibility that Wilcox can be held liable under California Labor Code section 558.1(b). The Plaintiff claims that Wilcox oversaw the location where the Plaintiff worked and supervised the daily work of employees. These allegations fail to show that Wilcox had substantial discretionary authority over a significant aspect of Ericsson's business or that Wilcox had broad and unlimited authority. Nor are there allegations from which to infer that Wilcox's decisions created corporate policy. Therefore, Wilcox is a sham defendant and his citizenship will be disregarded for purposes of determining diversity jurisdiction. The Plaintiff is a citizen of California and Defendants 4G, Networks, and Ericsson are citizens of Texas. Diversity of citizenship has been satisfied. The Plaintiff contends that Defendant 4G has not shown that the amount in controversy exceeds $75,000. Defendant 4G estimates that the Plaintiff placed at least $58,690 in controversy, exclusive of attorney fees. Defendant 4G made calculations for the four-year-period the Plaintiff claims based on one missed meal per workday, one missed break per workday, one hour of overtime per week in the given period, and associated penalties. This calculation is comparable to the amount in controversy calculations that were accepted by the court in Giannini v. Northwestern Mutual Life Ins. Co., No. C 12-77 CW, 2012 WL1535196, at *3 (N.D. Cal. Apr. 30, 2012). Defendant 4G also included $30,000 in attorney fees in calculating the amount in controversy. This estimate is based on a rate of $300 per hour, which is more conservative than the rates applied in Zoom, multiplied by 100, which is a conservative estimate of anticipated attorney hours considering the scope and complexity of the Plaintiff's claims. Defendant 4G has established that the amount in controversy is more likely than not over $75,000, and the Plaintiff has not disputed 4G's calculations. Therefore, the Court finds that the amount in controversy necessary for subject matter jurisdiction has been satisfied. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/y9yeh8r7 from Leagle.com. John Nguyen, individually and on behalf of all others similarly situated, Plaintiff, represented by Daniel Velton -- dvelton@vzfirm.com -- Velton Zegelman, Huy Ngoc Tran -- Huy@JAWLawGroup.com -- Justice at Work Law Group, Kevin R. Allen -- kallen@vzfirm.com -- Velton Zegelman PC, Kevin Robert Allen , Allen Attorney Group & Tomas Eduardo Margain , Justice at Work Law Group, 84 W Santa Clara, Ericsson, Inc. & 4G Project People, Inc., Defendants, represented by Claire A. Hoffmann -- clairehoffmann@gbgllp.com -- Grube Brown and Geidt LLP, E. Jeffrey Grube, Esq. -- jeffgrube@gbgllp.com -- Grube Brown & Geidt LLP & Elizabeth Alexandra Brown -- lisabrown@gbgllp.com -- Grube Brown & Geidt LLP. ESTRELLA PROVIDER: Underpays Home Care Providers, Barcena Alleges ----------------------------------------------------------------- Maria Teresa Barcena, individually and on behalf of all others similarly situated, Plaintiff v. Estrella Provider Services, LLC; Jose C. Gonzalez; and Jose A. Martinez, Defendants, Case No. 5:18-cv-00103 (S.D. Tex., July 13, 2018) is an action against the Defendants to recover unpaid wages, overtime pay, liquidated damages, attorney's fees and costs. Ms. Barcena was employed by the Defendants as home care provider from January 2016 to June 2017. Estrella Provider Services, LLC is a Texas corporation whose principal place of business is in Laredo, Webb County, Texas and which may be served with process by serving its registered agent, Jose Gonzalez, 3820 Cedar Ave., Laredo, Texas 78041. [BN] The Plaintiff is represented by: Lakshmi Ramakrishnan, Esq. TEXAS RIOGRANDE LEGAL AID, INC. 301 S. Texas Ave. Mercedes, TX 78570 Telephone: (956) 447-4850 Facsimile: (956) 825-7035 E-mail: lramakrishnan@trla.org EVOLUTION WIRELESS: Grey Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- ANGELIA GREY, Individually, and on behalf of herself and others similarly situated v. EVOLUTION WIRELESS, INC., d/b/a metroPCS, a Rhode Island Corporation, Case No. 3:18-cv-00290 (E.D. Tenn., July 12, 2018), is brought under the Fair Labor Standards Act on behalf of all current and former hourly-paid Store Managers and Team Leaders of Evolution for "off-the-clock" unpaid straight time, minimum wage and overtime compensation. Headquartered in East Providence, Rhode Island, Evolution Wireless, Inc., is a Rhode Island Corporation that does business as a cellular telephone service business. Specifically, the Defendant is a distributor or authorized dealer of metroPCS prepaid cellular telephones. The Defendant operates storefronts in Tennessee, Georgia, Massachusetts, Rhode Island, Nebraska and others.[BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: gjackson@jsyc.com jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com EXPERIAN INFORMATION: Court Denies Bid to Dismiss FCRA Suit ----------------------------------------------------------- In the case, TERRACE ELLIS, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant, Case No. 17-CV-07092-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, denied the Defendant's motion to dismiss or to strike class allegations. Ellis brings the putative class action against the Defendant related to its allegedly inaccurate credit reports. In 2011, Michael Dreher brought a putative class action against the Defendant in the U.S. District Court for the Eastern District of Virginia. In his complaint, Mr. Dreher alleged that in 2010, while Mr. Dreher was undergoing a background check for a security clearance, the federal government discovered he was associated with a delinquent credit card account that had been taken out by Mr. Dreher's cousin in Mr. Dreher's name. To clear up the matter, Mr. Dreher requested a credit report from the Defendant. Subsequently, Mr. Dreher received a series of credit reports from the Defendant, each of which listed a delinquent account under the names Advanta Bank or Advanta Credit Cards. However, unbeknownst to Mr. Dreher, Advanta had been shut down by the Utah Department of Financial Institutions since earlier in 2010, and an entity called CardWorks, Inc. had been appointed as servicer of Advanta's portfolio. Even though Advanta had been defunct since early 2010, the Defendant continued to list the Advanta name, and not CardWorks, for all Advanta accounts on Defendant's credit reports, which explains why Mr. Dreher received credit reports from the Defendant that listed a delinquent account under the Advanta name. Mr. Dreher's complaint against the Defendant asserted that the Defendant's listing of Advanta instead of CardWorks on credit reports amounted to a violation of 15 U.S.C. Section 1681g(a)(2), which requires consumer reporting agencies to clearly and accurately disclose the sources of the information listed on credit reports. Mr. Dreher sought to pursue this Section 1681g(a)(2) claim on behalf of a class composed of all persons who (1) requested a credit report from the Defendant on or after Aug. 1, 2010; and (2) received a document in response that identified Advanta as the only source of information. The U.S. Court for the Eastern District of Virginia certified the class on May 30, 2013. Thereafter, the Defendant moved for summary judgment on the ground that Mr. Dreher lacked Article III standing to assert a Section 1681g(a)(2) claim against the Defendant, but the district court disagreed with the Defendant and found that Mr. Dreher had standing. Then, in lieu of holding a jury trial on the class claim, the parties stipulated to an award of $170 in statutory damages for each class member. On Aug. 26, 2015, the district court entered final judgment in favor of Mr. Dreher and the Dreher class in the amount of $170 per class member, totaling over $11.7 million. The Defendant then appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the district court erred in finding that Mr. Dreher had Article III standing to pursue the class claim for violation of 15 U.S.C. Section 1681g(a)(2). The Fourth Circuit agreed with the Defendant. As a result, it eld that Mr. Dreher had alleged a mere statutory violation divorced from any real world effect and therefore lacked standing to pursue a Section 1681g(a)(2) claim against the Defendant based on its listing of Advanta instead of CardWorks on credit reports. Accordingly, the Fourth Circuit vacated the district court's judgment and remanded with instructions to dismiss the case "on jurisdictional grounds." On Dec. 13, 2017, about seven months after the Fourth Circuit's Dreher decision was issued, the Plaintiff filed the instant action against the Defendant in the Court. Like Mr. Dreher in the Dreher case, the Plaintiff alleges that (1) she requested credit reports from the Defendant; (2) those credit reports listed an Advanta account that had an outstanding balance; and (3) at the time, Advanta had already been "shut down," and CardWorks had been hired to service those Advanta accounts going forward. However, unlike Mr. Dreher, the Plaintiff also alleges that over the course of years, in her efforts to resolve and end the continued reporting of an Advanta Bank credit card tradeline in her credit reports, the Plaintiff spent hours of her time researching the history of Advanta and drafting, filing, and defending numerous pleadings that incorrectly named Advanta as the Defendant, without knowing and being able to identify the actual source of the inaccurate 'Advanta Bank' tradeline in her credit reports. The Plaintiff asserts three causes of action against the Defendant. The Plaintiff's first cause of action is asserted on behalf of a putative class and is identical to the class claim that Mr. Dreher asserted against the Defendant in Dreher: violation of 15 U.S.C. Section 1681g(a)(2) based on the Defendant's identification of Advanta instead of CardWorks in the Defendant's credit reports. Also similarly to Dreher, the Plaintiff seeks to assert Count One on behalf of a class composed of all persons who (1) requested a credit report from the Defendant between Sept. 11, 2011, through the present; and (2) received a disclosure in response that included a tradeline with the name 'Advanta Bank' or 'Advanta Credit Cards,' but that did not identify Cardworks as a source of the information for the Advanta Bank or Advanta Credit Cards tradeline. However, the Plaintiff also states that she was a member of the class that was certified in Dreher, and that she did not opt out of the Dreher class. The Plaintiff's second and third causes of action are for violations of 15 U.S.C. Section 1681e(b) and California Civil Code Section 1785.14, respectively, and are both asserted as individual claims. On Feb. 12, 2018, the Defendant filed the instant motion to dismiss Count One of the Plaintiff's complaint or to strike the Plaintiff's class allegations. It moves to strike the class action allegations pertaining to Count One because it is clear that no such class action is possible. The Defendant argues that the Court should strike the Plaintiff's class allegations because the Plaintiff will not be able to satisfy the typicality requirement of Rule 23(a) or the predominance requirement of Rule 23(b). The Plaintiff opposed the Defendant's motion on April 11, 2018, and the Defendant filed a reply on April 25, 2018. Judge Koh finds that because Mr. Dreher was the sole named plaintiff and was found to lack standing to assert the class claim in Dreher, the district court never had jurisdiction over the matter, and therefore never had jurisdiction to certify the Dreher class. The Judge concludes that the Plaintiff is not bound by the Fourth Circuit's determination regarding Mr. Dreher's lack of standing even though a class was certified in Dreher and the Plaintiff did not opt out of that class. Accordingly, she denies the Defendant's motion to dismiss Count One. Turning to the Defendant's motion to strike class allegations, although the Defendant appears to raise some potentially serious issues with respect to the Plaintiff's proposed class, the Judge finds it more appropriate for the Defendant to raise these issues in the Defendant's opposition to the Plaintiff's motion for class certification. This provides both parties the opportunity to further develop their arguments and engage in discovery. The Court and other courts in the district have similarly declined to address challenges to a putative class's ability to satisfy Rule 23 at the pleading stage. Accordingly, she denies the Defendant's motion to strike the Plaintiff's class allegations. For these reasons, Judge Koh denied the Defendant's motion to dismiss or to strike the class allegations. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/0PhJLR from Leagle.com. Terrace Ellis, Plaintiff, represented by Leonard Anthony Bennett -- lenbennett@clalegal.com -- Consumer Litigation Associates, P.C., Annick Marie Persinger -- apersinger@tzlegal.com -- Tycko & Zavareei LLP & Craig Carley Marchiando -- craig@clalegal.com -- Consumer Litigation Associates. Experian Information Solutions, Inc., Defendant, represented by Daniel John McLoon -- djmcloon@jonesday.com -- Jones Day, Jeffrey Rabkin -- jrabkin@jonesday.com -- Jones Day & William Vincent O'Reilly -- woreilly@jonesday.com -- Jones Day. EXPRESS SCRIPTS: Wolfe Seeks to Halt Sale to Cigna -------------------------------------------------- Robert Wolfe, and all others similarly situated, Plaintiffs, v. Express Scripts Holding Company, George Paz, Timothy Wentworth, Maura C. Breen, William J. Delaney, Elder Granger, Nicholas J. Lahowchic, Kathleen M. Mazzarella, Thomas P. Mac Mahon, Frank Mergenthaler, Woodrow A. Myers Jr., Roderick A. Palmore, William L. Roper and Seymour Sternberg, Defendants, Case 18-cv-01111 (D. Del., July 27, 2018) seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Express Scripts by Cigna Corporation, rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger. The plaintiff also seeks costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Express Scripts stockholders will receive 0.2434 of a share of New Cigna common stock and $48.75 in cash for each Express Scripts common share held. The proposed transaction is valued at approximately $54 billion, excluding debt. The registration statement, which recommends that Express Scripts stockholders vote in favor of the Proposed Transaction, omits Express Scripts' and Cigna's financial projections, relied upon by the former's financial advisors, Centerview Partners LLC and Lazard Freres & Co. LLC in connection with the rendering of their fairness opinions, notes the complaint. Express Scripts is an independent pharmacy benefit management company located at One Express Way, St. Louis, Missouri 63121. Cigna is a global health service company that provides medical, pharmacy, behavioral, dental, disability, life and accident insurance and related products and services. [BN] Plaintiff is represented by: Blake A. Bennett, Esq. COOCH AND TAYLOR, P.A. The Brandywine Building 1000 West Street, 10th Floor Wilmington, DE 19801 Tel: (302) 984-3800 Email: bbennett@coochtaylor.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com FALCON SUBSIDIARY: $595K Settlement in THNs' Suit Has Prelim OK --------------------------------------------------------------- In the case, JANET SHAULIS, and JEWEL ARLENE KEY, individually and on behalf of all other similarly situated individuals Plaintiffs, v. FALCON SUBSIDIARY LLC, a Delaware limited liability company, d/b/a Axispoint Health, Defendant, Civil Action No. 18-cv-00293-CMA-NYW (D. Colo.), Judge Christine M. Arguello of the U.S. District Court for the District of Colorado granted the Parties' Joint Motion for Preliminary Approval of Collective/Class Action Settlement, Certifying Class for Purpose of Settlement, Directing Notice to the Class, and Scheduling Final Approval Hearing. The Judge preliminarily certified the class of all current and former hourly Telehealth Nurses ("THNs") (a home-based nurse who field patient calls) who work or have worked for Falcon, doing business as AxisPoint Health, at any time from Feb. 6, 2015 (for all THNs employed in states other than California) and from Feb. 6, 2014 (for all THNs employed in California), through the date on which she granted preliminary approval of the Settlement. She appointed the named Plaintiffs as the representatives for the Settlement Class, and appointed Sommers Schwartz, P.C. as the Class Counsel for the Plaintiffs and the Settlement Class. The Plaintiffs and the Class Counsel have presented to the Court a proposed Class Notice. The Judge finds that such forms satisfy the requirements of Rule 23 as it fairly and adequately: (a) describes the terms and effect of the Settlement Agreement, the Settlement and the Plan of Allocation; (b) notifies the Settlement Class: that the California Claims Payments (totaling $12,000) will be paid out of the Total Settlement Amount; that the Class Counsel will seek attorneys' fees from the Global Settlement Fund up to one-third of the $595,000 Total Settlement Amount; that reimbursement of litigation expenses from the Total Settlement Amount will be sought up to $15,000; that payment of Settlement Administration expenses from the Total Settlement Amount in an amount not to exceed $23,000; and that Named Plaintiff incentive awards will be sought from the Total Settlement Amount in an amount not to exceed a cumulative amount of $15,000 for the Named Plaintiffs for their service in such capacities; (c) gives notice to the Settlement Class of the time and place of the Fairness Hearing; and (d) describes how the recipients of the Class Notice may object to any of the relief requested or request to exclude themselves from the settlement. The Plaintiffs and the Class Counsel have proposed first class mail to communicate the notice to members of the Settlement Class, and the Judge finds that such proposed manner is the best notice practicable under the circumstances. By no later than the date set forth in the schedule, the Settlement Administrator will cause the proposed Class Notice, to be sent to the last known e-mail address of each member of the Settlement Class for whom the Settlement Administrator has a valid e-mail address. The Judge has reviewed the Class Counsel's Joint Motion and supporting affidavit, and preliminarily approved their request for an award of fees in the amount of $198,333.33, litigation expenses in an amount not to exceed $15,000, and settlement administration expenses not to exceed $23,000, as fair and reasonable. Further, upon consideration of the relevant authorities, she preliminarily approved the proposed Named Plaintiff incentive awards in an aggregate amount of $15,000 as fair and reasonable. Any member of the Settlement Class who wishes to object to the fairness, reasonableness or adequacy of the Settlement, or to any term of the Settlement Agreement may file an objection. The addresses for filing objections with the Court and service on counsel are as follows: SOMMERS SCHWARTZ, P.C. Kevin J. Stoops One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248)355-0300 kstoops@sommerspc.com Upon Defense Counsel at: MCDERMOTT WILL & EMERY LLP Chris C. Scheithauer 4 Park Plaza, Suite 1700 Irvine, California 92614 (949) 757-7163 cscheithaeur@mwe.com Upon Settlement Administrator at: SIMPLURIS INC. P.O. Box 26170 Santa Ana, California 92799 Fax: (714) 223-5067. The Counsel will file their Motion for Final Approval and Attorneys' Fees no later than the date set forth in the schedule. The Judge established these deadlines: a. Entry of Preliminary Approval Order - June 19, 2018 b. Defendant to provide the Settlement Administrator with Class Member addresses and Class Member data for Class Notice to be mailed - July 6, 2018 c. Deadline for the Settlement Administrator to mail Class Notice Packet - July 20, 2018 (Mailing Date) d. Deadline for Class Members to mail Elections Not to Participate in Settlement and Objections - Sept. 3, 2018 e. Deadline for filing Final Approval Motion and Motion for Fees and Costs - Sept. 14, 2018 f. Deadline for Settlement Administrator to rovide Parties with report identifying all Participating Class Members - Sept. 17, 2018 g. Deadline for Class Member Objections to Attorneys' Fee Motion - Sept. 21, 2018 h. Deadline for Parties to file response to objections - Sept. 24, 2018 i. Final Approval Hearing - Sept. 25, 2018 at 2:00 p.m. j. Deadline for Settlement Funding - Within 14 days of entry of Final Approval Order k. Deadline for Settlement Administrator to Issue payments to Participating Class Members, Named Plaintiff Incentive Awards, and Class Counsel's Fees and Litigation Expenses - Within 7 days of receiving Settlement Funding A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/1TEHox from Leagle.com. anet Shaulis & Jewel Arlene Key, individually and on behalf of all other similarly situated individuals, Plaintiffs, represented by Kevin Jay Stoops -- kstoops@sommerspc.com -- Sommers Schwartz, PC. Falcon Subsidiary LLC, a Delaware limited liability company, Defendant, represented by Christopher Charles Scheithauer -- cscheithauer@mwe.com -- McDermott Will & Emery, LLP, Erin McAlpin Eiselein -- eeiselein@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP & Martine Tariot Wells -- mwells@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP. FILTREX SERVICE: Wilson Action Seeks Unpaid Overtime Premium ------------------------------------------------------------ Scott Avery Wilson, individually and on behalf of all others similarly situated v. Filtrex Service Group, Inc. and Christopher Blount, Defendant, Case No. 18-cv-00491, (E.D. Ark., July 27, 2018), seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Filtrex Service Group provides commercial, retail and restaurant industries HVAC/R asset tracking, coil cleaning and maintenance, energy management and equipment evaluations. Wilson was employed by Defendants as a technician from March of 2018 until July of 2018. He regularly worked in excess of forty hours per week without being paid overtime premium, says the complaint. [BN] Plaintiff is represented by: Josh Sanford, Esq. Chris Burks, Esq. Daniel Ford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com chris@sanfordlawfirm.com daniel@sanfordlawfirm.com FLUOR CORP: Isenberg Suit Seeks to Recover Wages Under FLSA ----------------------------------------------------------- DAVID ISENBERG, ERNIE NOBLES, JIMMY REYNA and TIM JOHNSON, Individually, and on behalf of themselves and others similarly situated v. FLUOR CORPORATION, a Delaware Corporation, and FD SERVICES, INC., a Delaware Corporation, Case No. 4:18-cv-02407 (S.D. Tex., July 12, 2018), seeks to recover alleged unpaid straight time wages, unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory penalties, attorneys' fees and costs, and other damages owed pursuant to the Fair Labor Standards Act. Fluor Corporation is a Delaware Corporation with its corporate headquarters located in Irving, Texas. According to its Web site, "[F]lour Corporation is a global engineering, procurement, fabrication, construction and maintenance company that designs, builds, and maintains capital-efficient facilities for its clients on six continents." Fluor Daniel Services Corporation is a Delaware Corporation and is a wholly owned subsidiary of Fluor Corporation. Fluor Daniel Services Corporation is the construction management arm of Fluor Corporation.[BN] The Plaintiffs are represented by: J. Derek Braziel, Esq. Travis Gasper, Esq. LEE & BRAZIEL, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, TX 75202 Telephone: (214) 749-1400 Facsimile: (214) 749-1010 E-mail: jdbraziel@l-b-law.com gasper@l-b-law.com - and - Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: gjackson@jsyc.com jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com FOSTER PREMIER: Court Dismisses Suit Over Document Fees ------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granting Defendants' Motion to Dismiss the case captioned JOHN MURPHY, CECIL MATHEW, and NIRUPA MATHEW, Plaintiffs, v. FOSTER PREMIER, INC., HOMEWISE SERVICE CORP., INC., and NEXTLEVEL ASSOC. SOLUTIONS, INC., Defendants, No. 17 CV 8114 (N.D. Ill.). When plaintiffs John Murphy and Cecil and Nirupa Mathew decided to sell their units, they visited Foster Premier's website to obtain the necessary documents. Foster Premier's website immediately redirected them to HomeWise's website, where the plaintiffs paid for electronic copies of the documents. The Plaintiffs brought this lawsuit, alleging that the fees HomeWise charged were excessive and in violation of Illinois statutory and common law. The Plaintiffs allege that the defendants charged excessive fees for providing disclosure documents in violation of the Condominium Property Act, the Common Interest Community Association Act, and the Illinois Consumer Fraud Act. The Plaintiffs also bring claims for aiding and abetting breach of fiduciary duty, inducing breach of fiduciary duty, civil conspiracy, and unjust enrichment. The Condo Act and the Common Interest Community Act The Condo Act provides that an owner selling his unit shall obtain from the Board of Managers and shall make available for inspection to the prospective purchaser, upon demand, various disclosure documents. A reasonable fee covering the direct out-of-pocket cost of providing such information and copying may be charged by the association or its Board of Managers to the unit seller for providing such information. The Common Interest Community Act is slightly different in that it provides that for the resale of any unit, the board shall make available for inspection to the prospective purchaser, upon demand, certain disclosure documents. The Act seeks to streamline and regulate the different parties and processes related to condo operations. Plaintiffs, as condo owners and sellers, therefore fall within a class for whose benefit the statute was enacted. But the particular injury suffered here is not one that the statute was designed to prevent. The goal of Section 22.1 was to increase disclosure. And though the legislature clarified that an association could charge reasonable costs for providing those documents, excessive fees is not the injury the Act was designed to prevent. Limiting costs may be consistent with the purpose of the Act, but it is not what motivated the legislature. The Plaintiffs point to no additional features of the similar Common Interest Community Act that would justify a different outcome. And under the Common Interest Community Act, even assuming plaintiffs had a private right of action, they have not adequately alleged a violation. Unlike the Condo Act, the Common Interest Community Act requires that the board, not the seller, make disclosure documents available to prospective purchasers. Plaintiffs assert that they purchased the documents themselves, which is not contemplated by the Act. As a result, plaintiffs have failed to state a claim under either the Condo Act or the Common Interest Community Act. Illinois Consumer Fraud Act To state an ICFA claim a plaintiff must allege (1) a deceptive or unfair practice occurred; (2) the defendant intended for the plaintiff to rely on the deception or unfair practice; (3) the act occurred in the course of conduct involving trade or commerce; (4) the plaintiff sustained actual damages; and (5) those damages were proximately caused by the defendant's wrongful conduct. To be deemed unfair, the injury alleged must also be substantial, not be outweighed by any countervailing benefit, and be an injury that the consumers themselves could not have reasonably avoided. Small personal injuries can still be substantial if they cause a large loss to the public in the aggregate. Plaintiffs allege that they each suffered around $300 in damages and that the class as a whole lost over $1.5 million. And for the reasons discussed above, plaintiffs have also adequately alleged that they could not have reasonably avoided the injury. It is not clear from plaintiffs' allegations, however, that their injury was not outweighed by a countervailing benefit. Under the Condo and Common Interest Community Acts, property associations have thirty days to turn over requested documents. Defendants argue, and plaintiffs do not address, that sellers pay more to HomeWise in exchange for getting the documents more quickly which can be necessary if a seller is looking to sell her home immediately. The Plaintiffs have not adequately alleged that the defendants' practices were sufficiently unfair to support a consumer-fraud-act claim. Aiding and Abetting and Inducement of Breach of Fiduciary Duty To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must allege that the defendant aided a party who performed a wrongful, injury-causing act, that the defendant was aware of its role at the time it provided the assistance, and that the defendant knowingly and substantially assisted in the violation. Condo associations owe individual unit owners a fiduciary duty. But the plaintiffs have not alleged facts indicating that the plaintiffs' condo association breached that duty. The Plaintiffs allege that without the source of revenue generated from the document-disclosure charges, Foster Premier would likely have to charge the association more for its services. As a result, the plaintiffs have not alleged that the association was unfairly profiting at the expense of the unit owners. Rather, as the plaintiffs' claim is currently plead, the associations made a reasonable choice to delegate their responsibilities to a management agency. That the plaintiffs disagree with that choice is not enough to allege that it constituted a breach of fiduciary duty. Because they have not alleged an underlying breach by the association, the plaintiffs have not stated claims against defendants for aiding and abetting or inducement of that breach. Civil Conspiracy and Unjust Enrichment Both the civil conspiracy and unjust enrichment claims are dependent on the survival of plaintiffs' other claims. The elements of civil conspiracy are: (1) a combination of two or more persons, (2) for the purpose of accomplishing by some concerted action either an unlawful purpose, or a lawful purpose through unlawful means, (3) in furtherance of which one of the conspirators committed an overt tortious or unlawful act. Because the plaintiffs have not adequately alleged that defendants committed an overt tortious or unlawful act, their claim for civil conspiracy is dismissed. A full-text copy of the District Court's July 16, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yd3uty43 from Leagle.com. John Murphy, Cecil Matthew & Nirupa Matthew, Plaintiffs, represented by David J. Fish , The Fish Law Firm, P.C., Charles Robert Watkins , Guin Stokes & Evans, LLC, John C. Kunze , The Fish Law Firm, John R. Wylie , BarrettWylie, LLC, Kimberly A. Hilton , The Fish Law Firm, P.C., & Stephen Sotelo , The Law Office of Thomas J. Homer, P.C. Foster/Premier, Inc., Defendant, represented by Mark T. Schmidt -- jbarbrow@schmidtbarbrow.com -- Schmidt & Barbrow, P.C. HomeWise Service Corp., Inc., Defendant, represented by Philip M. Oliss , Squire Patton Boggs (US) LLP. NextLevel Association Solutions, Inc., Defendant, represented by Philip M. Oliss , Squire Patton Boggs (US) LLP, Clair Christine Pena , Squire Patton Boggs (US) LLP, pro hac vice & Eleanor Hagan , Squire Patton Boggs, pro hac vice. FREEDOM FINANCIAL: Can't Arbitrate D. Beerman's TCPA Suit --------------------------------------------------------- The United States District Court for the Northern District of California denied Defendant's Motion to Compel Arbitration in the case captioned DANIEL BERMAN, Plaintiff, v. FREEDOM FINANCIAL NETWORK, LLC, et al., Defendants, Case No. 18-cv-01060-DMR (N.D. Cal.). In this putative class action, named plaintiff Daniel Berman alleges that Freedom Financial Network, LLC, and its subsidiary, Freedom Debt Relief, LLC, violated the Telephone Consumer Protection Act (TCPA), by using automatic telephone dialing systems to place telemarketing phone calls and text messages to him and the putative class members without their consent. Specifically, Berman alleges that on February 14, 2018, he received a text message and phone call from (409) 359-9066, advertising Defendants' debt relief services. In this case, factual disputes exist as to whether Berman or an individual acting on his behalf consented to the terms and conditions at issue. Although the Defendants state that the individual who registered Berman's phone number on the APC website agreed to be bound by the terms and conditions, Berman denies having visited the website or having authorized anyone to do so on his behalf. He also denies using the name, email address, mailing address, or birthdate associated with the individual who registered his phone number, and denies authorizing anyone to use that information on his behalf. In light of Berman's numerous and unequivocal denials, and resolving all reasonable doubts in Berman's favor, the Defendants have failed to show the absence of a genuine issue of fact regarding whether Berman agreed to the terms and conditions, including the arbitration provision. As the Defendants have not met their burden to show the existence of an agreement to arbitrate by a preponderance of the evidence, the motion to compel arbitration must be denied. In their reply, the Defendants argue that Berman should be compelled to arbitrate his claims based on equitable estoppel. Without addressing the applicable standards for equitable estoppel, Defendants contend that someone registered Berman's phone number and consented in writing to receive phone calls and text messages at that number. Therefore, they argue, Berman cannot equitably be allowed to avoid the clear arbitration commitment binding his telephone number to the Terms and Conditions. The sole case they cite, Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 527-28 (5th Cir. 2000), does not support their position. Under Grigson, a non-signatory to an arbitration agreement may compel arbitration under a theory of equitable estoppel under certain circumstances. Such a theory does not apply here, where there are disputed facts about whether the parties actually formed an agreement to arbitrate. Accordinvly, the Defendants' motion to compel arbitration and to stay the case pending arbitration is denied. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/yba6f6cn from Leagle.com. Daniel Berman, Plaintiff, represented by Anthony I. Paronich -- anthony@broderick-law.com -- Broderick & Paronich, P.C., pro hac vice, Matthew Passi McCue , The Law Office of Matthew P. McCue, pro hac vice & Jon Bernhard Fougner. Freedom Financial Network, LLC, Defendant, represented by Jay Thomas Ramsey -- jramsey@sheppardmullin.com -- Sheppard Mullin Richter and Hampton LLP, Jonah Sampson Van Zandt -- jvz@severson.com -- Severson and Werson & Robert James Guite -- rguite@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. Freedom Debt Relief, LLC, Defendant, represented by Jay Thomas Ramsey , Sheppard Mullin Richter and Hampton LLP & Jonah Sampson Van Zandt , Severson and Werson. GC SERVICES: Collection Practices Violate FDCPA, Fleenor Claims --------------------------------------------------------------- ROBERT FLEENOR and MARIA WOLF, Individually and on Behalf of All Others Similarly Situated v. GC SERVICES LIMITED PARTNERSHIP, Case No. 2:18-cv-01055-PP (E.D. Wisc., July 10, 2018), seeks redress for the Defendant's collection practices that allegedly violate the Fair Debt Collection Practices Act and the Wisconsin Consumer Act. GC Services Limited Partnership is a foreign limited partnership with its principal offices located in Houston, Texas. GCS is a collection agency, using the mails and telephone to collect consumer debts originally owed to others.[BN] The Plaintiffs are represented by: 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 GILBERT ROZON: To Appeal Sexual Assault Class Action Dismissal -------------------------------------------------------------- Presse Canadienne reports that Gilbert Rozon wants to appeal a judgment that authorized a class-action lawsuit against him by a group of women who say they were sexually assaulted by the Just for Laughs founder. In the motion Mr. Rozon filed with the Quebec Court of Appeals in early July, he says Justice Donald Bisson, who authorized the suit, wanted to denounce acts of sexual violence. "A laudable objective, certainly, but unrelated to the authorization of this class-action lawsuit," the application says. Mr. Rozon's motion will be heard on Aug. 15. The women seeking action, who call themselves "Les Courageuses," are accusing the 63-year-old of sexual violence and are asking for damages of more than $10 million. According to the women, Mr. Rozon assaulted at least 20 victims over a 34-year period from 1982 to 2016, which he denies. Patricia Tulsane, the group's spokesperson, is the only woman who was come forward publicly. The class-action suit was authorized on May 22. The allegations brought forward by the group have not been proven in court, nor have any criminal charges been laid against Mr. Rozon. In his motion to appeal, Mr. Rozon says the decision to allow the lawsuit misinterpreted the facts of the case and did not abide by the criteria required to launch a class-action lawsuit, which is only allowed under certain conditions. If it were not for those faults, Mr. Rozon's motion says, the lawsuit would not have been authorized. The decision to allow the lawsuit to move forward is considered unprecedented because it targets one individual, not an institution as most sexual assault class-action suits have in the past. In those cases, the victims were often children, which meant there was a presumption of lack of consent as the people involved were legally unable to say yes. In this case, Mr. Rozon argues that the lack of consent cannot be assumed, and that each case needed to be looked at individually. He also argues there is no link between the women involved in the lawsuit. He also insists that Justice Bisson was influenced by "outside social considerations" while analyzing the facts of the case, simply because it has to do with sexual violence. In his May decision, Justice Bisson wrote that "class-action lawsuits have been demonstrably effective in sexual violence cases as it permits access to justice for hundreds of victims in Quebec." He also wrote that if the action were not authorized, a number of the victims would probably be deprived of their right to sue. Mr. Rozon resigned from his position at Just for Laughs after the allegations were made public in October. [GN] GIRARD, OH: Faces Class Action Over Traffic Camera Tickets ---------------------------------------------------------- Ed Runyan, writing for The Vindicator, reports that the attorneys who filed suit in Trumbull County Common Pleas Court seeking return of money paid for purportedly erroneous speeding tickets issued seven months ago in Girard told a judge why the suit should be certified a class action. Dann Law of Cleveland and Zimmerman Law of Chicago told Judge Andrew Logan the case meets the requirements under law to be a class action, meaning a suit that automatically represents all of the individuals affected unless they opt out. The suit alleges drivers were cited from traffic cameras when traveling westbound on Interstate 80 for speeds above 55 mph even though the speed limit was 65 mph at the time because construction in the westbound lane had ended. The suit seeks a declaration the citations issued to drivers during that period are invalid, that the six people filing the suit should be designated representatives of all the class members, and that the Dann and Zimmerman law firms be designated as legal counsel for the class. The suit should be a class action because the people who sued the city only paid about $150 each for their tickets, and "hundreds, if not thousands, of citations were issued" during the month of the allegedly erroneous citations, the suit says. "Class certification is crucial in this case because the citation can have a far-reaching consequence for an individual far beyond the amount of the fine, yet the amounts paid are not large enough to merit individual" lawsuits, the filing says. Recovery of $150 is not enough incentive for an individual or law firm to file suit, but a class action "solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's [usually an attorney's] labor," the filing says, quoting from a 1997 U.S. Supreme Court decision. The filing says Marc Dann is managing partner of Dann Law and also a partner in the Oregon Consumer Law Center in Portland, Ore., which both specialize in representing clients who have been harmed by banks, debt collectors and other financial predators. Zimmerman Law has a focus on class-action litigation, such as the $62 million recovery for a nationwide class of consumers who purchased products advertised to reduce cellulite, the firm's biography says. [GN] GOLDEN STATE OVERNIGHT: Quijada Suit Seeks Unpaid Wages ------------------------------------------------------- Noe Quijada, individually and on behalf of others similarly situated, Plaintiff, v. Golden State Overnight Delivery Service, Inc., a California Corporation and Does 1 through 1oo, inclusive, Defendants, Case No. 18-CV-332129 (Cal. Super., July 27, 2018), seeks unpaid minimum wages and interest thereon; statutory penalties for failure to provide accurate wage statements and failure to maintain time-keeping records; injunctive relief and other equitable relief; and reasonable attorney's fees, costs and interest under California Labor Code, Unfair Competition Law and applicable Industrial Wage Orders. Golden State Overnight Delivery Service offers parcel and freight delivery services where Quijada was paid piece rate wage based on the number of packages he delivered. Multiple packages were strapped together (typically around four packages) and only counted as one package. Quijada also claims that he was not given accurate itemized earnings statements showing their nonproductive time and wages for their nonproductive time. Defendant knowingly and intentionally failed to maintain accurate time records as required by California law, says the Court. Plaintiff is represented by: Michael H. Kim, Esq., Esq. Jamielee F. Martinez, Esq. Adam K. Tanouye, Esq. MICHAEL H. KIM, P.C. 475 El Camino Real, Suite 309 Millbrae, CA 94030 Telephone: (65o) 697-8899 Facsimile: (65o) 697-8896 GOOGLE LLC: Court Narrows Claims in AdTrader's Suit --------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, granted Defendant's Motion to Dismiss certain claims in Plaintiffs' first amended complaint in the case captioned ADTRADER, INC., ET AL., Plaintiffs, v. GOOGLE LLC, Defendant, Case No. 17-cv-07082-BLF (N.D. Cal.). This action involves purported unlawful conduct by Defendant Google LLC in relation to its online advertisement marketplace services. Plaintiff Specialized Collections Bureau, Inc. (SCB) used AdWords to advertise its business on the Internet and some of its advertisement impressions came from AdX publisher websites. The Plaintiffs allege that Google has refused to pay AdX website publishers their accrued revenues, claiming that it would return that money to advertisers because of some purported violation of Google's policy by those publishers. Second Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing Google argues that AdTrader's second cause of action relies on a hodgepodge of theories, including allegations that Google, inter ala: (1) arbitrarily withheld amounts in AdTrader's publisher account, but did not terminate AdTrader's client accounts; (2) failed to provide AdTrader a meaningful appeal after termination. AdTrader responds that the second cause of action is adequately alleged reasons, inter alia: Google (1) disabled AdTrader's AdX account and withheld earnings but never disabled AdTrader's client accounts; (2) refused to provide reasons for withholding the earnings and did not provide a meaningful appeal process. The Court finds that the FAC does not adequately plead the second cause of action. The implied covenant of good faith and fair dealing's application is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract. However, as pled, the FAC's allegations attempt to add obligations that do not expressly appear in the agreements referenced in the FAC. As such, the allegations which Plaintiffs rely on do not support a claim for breach of the implied covenant of good faith and fair dealing. The Court therefore grants Google's motion to dismiss the second cause of action with leave to amend. Third Cause of Action: Breach of the Implied Duty to Perform with Reasonable Care Google argues that the third cause of action is duplicative of AdTrader's claim for breach of contract because those two claims rely on the same allegations. Google also contends that the third cause of action improperly attempts to transmute the breach of contract claim into a tort claim. AdTrader responds that Google's arguments fail because California law recognizes that a breach of the implied duty to perform with reasonable care constitutes a tort claim. In AdTrader's view, its claim for breach of implied duty to perform with reasonable care is broader in scope than the breach of contract claim. During the hearing, counsel for AdTrader indicated that California Civil Jury Instructions (CACI) 328 titled Breach of Implied Duty to Perform with Reasonable Care" supports AdTrader's position. However, a review of CACI shows that a claim for breach of implied duty to perform with reasonable care permits contract remedies rather than tort remedies. In addition, AdTrader has not pointed to any case where the court awarded tort damages for a breach of implied duty to perform with reasonable care. The Court agrees with Google's argument that AdTrader cannot rely on a claim for breach of implied duty to perform with reasonable care to recover tort damages. The FAC alleges that this claim is asserted as a tort claim. Accordingly, Google's motion to dismiss the third cause of action is granted with leave to amend in part and without leave to amend in part. The dismissal is without leave to amend insofar as AdTrader intended to pursue that claim as a tort claim. Fourth Cause of Action: Intentional Interference with Contract (Apart from DingIt Google argues that AdTrader fails to sufficiently allege that Google caused an actual breach of contract or disruption between AdTrader and over two hundred AdTrader clients and fails to allege damages resulting from the breach or disruption. Here, the FAC alleges that AdTrader had contractual relationships with over two hundred web publishers. However, the FAC does not plead sufficient factual allegations that show that Google purportedly interfered with a specific contract for each web publisher. Thus, the FAC fails to plead the specific breach with respect to a particular publisher. The Court therefore grants Google's motion to dismiss the fourth cause of action apart from DingIt with leave to amend. Fifth Cause of Action: Intentional Interference with Prospective Economic Advantage (Apart from DingIt) The Court finds that the fifth cause of action fails for the same reasons discussed above for the fourth cause of action. Similar to an intentional interference with contract claim, a plaintiff must adequately allege actual disruption of an economic relationship between the plaintiff and a third party in order to state a claim for intentional interference with prospective economic advantage. Here, however, the FAC merely lumps allegations regarding more than two hundred web publishers without pleading factual allegations as to the specific relationship between AdTrader and each publisher. The Court GRANTS Google's motion to dismiss the fifth cause of action apart from DingIt with leave to amend. Sixth Cause of Action: Declaratory Relief The FAC's sixth cause of action seeks declaratory judgment that the Limitation of Liability provision of AdTrader's Google Services Agreement is unconscionable. Google first argues that the Limitation of Liability provision is not procedurally unconscionable on the grounds that the FAC alleges that other advertising platforms exist. AdTrader responds that courts have held that it is inappropriate to dismiss a claim of unconscionability at the pleading stage in light of Cal. Civ. Code Section 1670.5. The Court finds that AdTrader has sufficiently alleged at least a degree of procedural unconscionability. As AdTrader points out, the FAC alleges that the Limitation of Liability provision is presented as a take-it-or-leave-it provision. The FAC also pleads that Google has a virtual monopoly in the field of on-line advertising, and anyone who wishes to monetize their websites through advertising has to use AdX. Those allegations allow a reasonable inference to be drawn that the Limitation of Liability provision constitutes a term over which a party of lesser bargaining power had no opportunity to negotiate and thus reflects procedural unconscionability to at least some degree. The Court denies Google's motion to dismiss the sixth cause of action. Seventh Cause of Action: Fraud Google argues that Plaintiffs do not allege that Google made any false representations concerning AdWords or AdX and fail to satisfy the particularity requirement under Rule 9(b) to assert their fraud claim. Plaintiffs respond that they adequately alleged the falsity of Google's statements because the FAC pleads that AdTrader's AdWords invoices showed that Google had not issued the refunds and that SCB never received full refunds for invalid activity on SCB's advertisements placed on an AdX publisher website. The Court agrees with Google's arguments that the fraud claim is not sufficiently pled. A plaintiff asserting fraud "must state with particularity the circumstances constituting fraud. Here, the FAC references at least three distinct agreements: (1) AdX Buyer Agreement dated March 2014; (2) DBM Agreement dated March 2016 and (3) AdWords Agreement dated February 2013. While the FAC alleges that Google made various representations about offline analysis of invalid clicks and refunding advertisers for those clicks, the FAC generally does not adequately plead when a certain representation was made, how that representation related to which of the three agreements, and how Plaintiffs relied on a specific representation in relation to the three agreements. For these reasons, the particularity of the circumstances concerning the alleged fraud cannot be discerned. The Court finds that Plaintiffs fail to state a claim based on fraud. Google's motion to dismiss the seventh cause of action is granted with leave to amend. Eighth Cause of Action: Negligent Misrepresentation Google asserts that Plaintiffs' negligent misrepresentation claim is deficient for similar reasons discussed for their fraud claim. Likewise, Plaintiffs disagree based on their arguments presented in support of the fraud claim. While the elements of negligent misrepresentation is similar to those as fraud, a plaintiff asserting a negligent misrepresentation claim needs to show that the defendant had no reasonable grounds to believe the representation was true rather than that the defendant knew the representation was false. This distinction does not affect the Court's analysis discussed for the Plaintiffs' fraud claim, and thus the Court finds that the negligent misrepresentation claim is also deficient. The Court therefore grants Google's motion to dismiss the eighth cause of action with leave to amend. Tenth Cause of Action: Breach of Contract Google argues that Plaintiffs' breach of contract claim fails because there is no contract term which calls for advertiser refunds.. The Plaintiffs counter that they have stated a claim under "theories of implied terms or contract modification despite the lack of such express language." The Court finds that Plaintiffs' tenth cause of action is deficient. As Google argues, the FAC does not sufficiently allege which terms of the agreement(s) at issue have been breached. While Plaintiffs assert that the AdX Buyer Agreement, DBM Agreement, and AdWords Agreement contain ambiguous terms, the FAC does not contain those allegations The Court grants Google's motion to dismiss the tenth cause of action with leave to amend. Eleventh Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing Google asserts that Plaintiffs cannot rely on the implied covenant to subject Google to additional obligations that are absent in a contract. The Plaintiffs are correct that a breach of contract is not a prerequisite to a claim for breach of the implied covenant of good faith and fair dealing. Like the second cause of action, as pled, the FAC attempts to add new obligations that do not expressly appear in the parties' agreements. Plaintiffs may not rely on new obligations to assert a claim for breach of the implied covenant of good faith and fair dealing. The Court therefore grants Google's motion to dismiss the eleventh cause of action with leave to amend. Twelfth Cause of Action: Breach of Implied Duty to Perform with Reasonable Care Plaintiffs allege the twelfth cause of action as a tort claim. The parties raise similar arguments which were discussed for the third cause of action. For the same reasons, the Court concludes that Plaintiffs cannot rely on a breach of implied duty to perform with reasonable care to assert a tort claim. Accordingly, Google's motion to dismiss the twelfth cause of action is granted with leave to amend in part and without leave to amend in part. Thirteenth Cause of Action: Unjust Enrichment Google contends that Plaintiffs may not bring a claim for unjust enrichment where an enforceable, binding agreement exists to define the rights of the parties. The Plaintiffs respond that an unjust enrichment claim does not lie when there is contract governing the specific subject matter in dispute not whenever there is a contract between the parties. The Court rejects the Plaintiffs' argument that they may bring an alternative unjust enrichment claim so long as Google's agreements do not require it to provide refunds for invalid activity. The Plaintiffs' narrow view of subject matter would essentially permit Plaintiffs to rewrite a contract to add a nonexistent contract term. The subject matter of the parties' agreement is Google's advertisement services, and thus the Plaintiffs must allege in the alternative that the parties do not have an enforceable contract pertaining to Google's advertisement services in order to plead an unjust enrichment claim. Because the FAC does not do so, the thirteenth cause of action fails. The Court grants Google's motion to dismiss the thirteenth cause of action with leave to amend. Fourteenth Cause of Action: Violation of California's Unfair Competition Law Google argues that the Plaintiffs lack standing to assert a claim under California's Unfair Competition Law (UCL) on the grounds that they did not bring this case for the public in general or individual consumers. The Plaintiffs respond that Google's practice of refusing to provide credits for invalid activity was based on contrary representations distributed widely to individual and business consumers seeking to advertise online. The Court is unpersuaded by the Plaintiffs' arguments. Where a UCL action is based on contracts not involving either the public in general or individual consumers who are parties to the contract, a corporate plaintiff may not rely on the UCL for the relief it seeks. The FAC does not contain adequate factual allegations showing that the named the Plaintiffs are not sophisticated corporate plaintiffs. In fact, the FAC suggests the opposite. The Court GRANTS Google's motion to dismiss the fourteenth cause of action with leave to amend. Fifteenth Cause of Action: Violation of the New York General Business Law Section 349 Google contends that the Plaintiffs' claim under the New York General Business Law Section 349 fails because selling advertisements is not a consumer-oriented act. To state a claim under Section 349, a plaintiff must allege (1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act. Here, the FAC merely alleges that "Google's deceptive acts and practices were consumer-oriented in that they were based on representations that were distributed widely on the Internet and directed at thousands of individuals and small businesses looking to engage in online advertising." The Court finds that the FAC's allegations are insufficient to adequately plead that "the gravamen of the complaint is harm to a business as opposed to the public at large." The Court grants Google's motion to dismiss the fifteenth cause of action with leave to amend. A full-text copy of the District Court's July 13, 2018 Order is available at https://tinyurl.com/y9kqmxt9 from Leagle.com. AdTrader, Inc., Plaintiff, represented by Mark Weylin Poe -- mpoe@gawpoe.com -- Gaw & Poe LLP, Samuel S. Song -- ssong@gawpoe.com -- Gaw & Poe LLP, Victor Meng -- vmeng@gawpoe.com -- Gaw & Poe LLP & Randolph Gaw -- rgaw-@gawpoe.com -- Gaw & Poe LLP. Specialized Collections Bureau, Inc. & Fresh Break Ltd., Plaintiffs, represented by Samuel S. Song , Gaw & Poe LLP & Randolph Gaw , Gaw & Poe LLP. Classic and Food EOOD, LML CONSULT Ltd. & Ad Crunch Ltd., Plaintiffs, represented by Samuel S. Song , Gaw & Poe LLP & Randolph Gaw , Gaw & Poe LLP. Google LLC, Defendant, represented by Jeffrey Gutkin -- jgutkin@cooley.com -- Cooley LLP, Michael Graham Rhodes -- rhodesmg@cooley.com -- Cooley LLP, Audrey Jane Mott-Smith -- amottsmith@cooley.com -- Cooley LLP & Kyle Christopher Wong -- kwong@cooley.com -- Cooley LLP. HEARST COMMUNICATIONS: Settles Class Action for $50MM ----------------------------------------------------- The Global Legal Post reports that New York media giant Hearst Communications has agreed to pay $50 million to settle a subscription data lawsuit. Hearst was accused of selling its magazine subscribers' subscription histories, reading habits, age, race, religion, charitable donations, political affiliations, income bracket, shopping habits and other personal data to third parties, including data-mining companies without their consent. Violation The media giant, which owns titles including Harper's Bazaar, Elle, Cosmo, Marie Claire, Good Housekeeping, and Esquire, was sued in November 2015 in a New York federal court by Good Housekeeping Michigan subscriber Josephine James Edwards. Ms Edwards launched a class action suit alleging Hearst illegally granted third party "data mining" companies to access Hearst's database of subscriber information without the permission of subscribers in violation of the Michigan state Video Rental Privacy Act, which prohibits the sharing of personal information provided by consumers about their purchasing, renting or borrowing of materials that might provide details about their identity and interests without consent from the individual consumers. Bombarded In her complaint, she stated "Hearst's subscribers are completely unaware that Hearst is selling their personal information on the open market." Ms Edwards claimed Hearst does not obtain consent causing subscribers to be 'bombarded, by unwanted offers and scams. Her case is one of a number of similar state lawsuits, and is three times bigger than a previous $16.38 million settlement from Consumer Reports. [GN] HODES PARKING: Underpays Valet Workers, Escobar Suit Alleges ------------------------------------------------------------ MIGUEL ESCOBAR, individually and on behalf of all others similarly situated, Plaintiff v. HODES PARKING, INC., and Does 1-50, Defendants, Case No. BC713756 (Cal. Super., July 13, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Escobar was employed by the Defendants as valet worker from April 2016 to July 21, 2017. Hodes Parking, Inc. offers car parking and garage services. The company is based in Beverly Hills, California. [BN] The Plaintiff is represented by: Nazo Koulloukian, Esq. KOUL LAW FIRM 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Telephone: (213) 761-5484 E-mail: nazo@koullaw.com HOUSTON HOSPITALITY: Doesn't Pay OT to Door Hosts, Shapiro Claims ----------------------------------------------------------------- JOSHUA SHAPIRO, individually and on behalf of all others similarly situated, Plaintiff v. HOUSTON HOSPITALITY, LLC; STONE HOSPITALITY, LLC; 1159 WESTERN HOSPITALITY, LLC; MARK HOUSTON; JONNIE HOUSTON; PLOENPIDH HOUSTON; and Does 1-50, Defendants, Case No. BC713761 (Cal. Super., July 13, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Shapiro was employed by the Defendants as door host from February 2011 to 2017. Houston Hospitality, LLC is a California limited liability company d/b/a Bronson Bar, Black Rabbit Rose, Good Times at Davey Wayne's, Pour Vous, Dirty Laundry, Harvard & Stone, Piano Bar, No Vacancy, La Descarga, King King, Madame Siam, Break Room 86, The Cabin, and The Speek, with its principal place of business at Los Angeles, California. [BN] The Plaintiff is represented by: Caleb Marker, Esq. Hannah B. Fernandez, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Telephone: (877) 500-8780 Facsimile: (877) 500-8781 HUAWEI DEVICE: Stay of Nexus 6P Products Liability Suit Lifted -------------------------------------------------------------- Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, granted the Plaintiffs' request to lift the discovery stay in the case, In re NEXUS 6P PRODUCTS LIABILITY LITIGATION, Case No. 17-cv-02185-BLF (N.D. Cal.). The case is a putative consumer class action against Defendants Huawei Device USA, Inc. and Google, LLC, regarding severe defects in Nexus 6P smartphones. On Aug. 18, 2017, the Court granted the Defendants' motion to stay discovery until the hearing on their motions to dismiss the Consolidated Amended Complaint. In particular, the Court noted that Huawei raised a personal jurisdiction argument that was potentially dispositive of the entire case as to Huawei. It further noted that Google's motion to dismiss could be potentially dispositive of the express warranty claims, which in turn would limit the scope of discovery. At the hearing on the motions to dismiss, the Court continued the discovery stay until further notice. On March 5, 2018, the Court ruled on the Defendants' motions to dismiss the Consolidated Amended Complaint. On May 10, 2018, the Plaintiffs filed a Second Consolidated Amended Complaint ("SAC"). The SAC pleads a single nationwide class and alleges seven claims for relief. Although the Court granted with leave to amend Huawei's motion to dismiss for lack of personal jurisdiction, Huawei has now withdrawn its personal jurisdiction defense. On June 14, 2018, the Defendants moved to dismiss the SAC. No discovery has occurred to date. The Plaintiffs now move to lift the stay of discovery immediately, pointing out that Huawei no longer has a personal jurisdiction defense to dispose of the action, and the discovery stay will needlessly delay the resolution of the litigation on the merits. The Defendants oppose, arguing that the SAC remains overreaching and unwieldy, and continuing the discovery stay until the pleadings are settled will not prejudice the Plaintiffs. Judge Freeman finds that the Defendants' pending motions to dismiss do not appear to be potentially case dispositive or even dispositive on the issue at which discovery is directed. She says the Defendants focus on a choice of law issue regarding whether the Plaintiffs can bring their claims on behalf of a nationwide class, but they have a persuasive argument that such class issues are premature at the pleading stage. Otherwise, the Defendants' arguments challenge a wide variety of specific allegations in the complaint that do not amount to "good cause" or a "strong showing" as to why discovery should be denied. Without determining the merits of the Defendants' motions at this time, the Judge envisions that while some modifications to the pleadings may be necessary, it appears that the case may move forward. In addition, the Judge finds that the pending motions to dismiss address the sufficiency of the allegations and thus they can be decided without discovery. However, the Defendants must prevail on both prongs to justify a protective order, and if either prong of this test is not established, discovery proceeds. Because she is not satisfied that the Defendants' motions are potentially dispositive of the case as to either Google or Huawei, the Judge declines to exercise its discretion to continue the discovery stay. The circumstances that existed on Aug. 18, 2017 when the Court entered what it deemed a "limited" discovery stay no longer exist. The Court has provided significant guidance to the parties in an 88-page opinion on the state of the pleadings, which resulted in a narrowed set of claims against the Defendants on behalf of a single nationwide class. After a 10-month stay of discovery and trial set for 2020, there is no good cause to continue the discovery stay. For the foregoing reasons, Judge Freeman granted the Plaintiffs' motion to lift the discovery stay in its entirety. The Court will issue a revised Case Schedule in a separate order. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/csag3i from Leagle.com. Jonathan Makcharoenwoodhi & Edward Beheler, Plaintiffs, represented by Adam E. Polk -- aep@girardgibbs.com -- Girard Gibbs LLP, Andrew William Ferich -- AndrewFerich@chimicles.com -- Chimicles and Tikellis LLP, pro hac vice, Benjamin F. Johns -- benjohns@chimicles.com -- Chimicles & Tikellis LLP, pro hac vice, Jessica Linn Titler-Lingle, Chimicles and Tikellis LLP, Jordan S. Elias -- je@girardgibbs.com -- Girard Gibbs LLP & Cory Steven Fein -- cory@coryfeinlaw.com -- Attorney at Law. Brian Christensen, Plaintiff, represented by Simon Seiver Grille -- sg@girardgibbs.com -- Girard Gibbs LLP, Adam E. Polk, Girard Gibbs LLP, Andrew William Ferich, Chimicles and Tikellis LLP, Benjamin F. Johns, Chimicles & Tikellis LLP, Daniel C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP, Jessica Linn Titler-Lingle, Chimicles and Tikellis LLP & Jordan S. Elias, Girard Gibbs LLP. Paul Servodio, Yuriy Davydov, Kenneth Johnston, Anthony Martorello, Rebecca Harrison, James Poore, Jr., Justin Leone, Taylor Jones, Alex Gorbatchev & Zachary Himes, Plaintiffs, represented by Adam E. Polk, Girard Gibbs LLP, Jordan S. Elias, Girard Gibbs LLP & Benjamin F. Johns, Chimicles & Tikellis LLP. Huawei Device USA, Inc., Defendant, represented by Simon J. Frankel -- sfrankel@cov.com -- Covington & Burling LLP & Lindsey Catherine Barnhart, Covington Burling LLP. Google LLC, Defendant, represented by Joshua H. Lerner -- jlerner@durietangri.com -- Durie Tangri LLP, Catherine Y. Kim -- ckim@durietangri.com -- Durie Tangri LLP, Eugene Novikov -- enovikov@durietangri.com -- Durie Tangri LLP & Ragesh K. Tangri -- rtangri@durietangri.com -- Durie Tangri LLP. INTEREXCHANGE INC: Summary Judgment Bids in Antitrust Suit Junked ----------------------------------------------------------------- In the case, JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, SARAH CAROLINE AZUELA RASCON, CAMILA GABRIELA PEREZ REYES, CATHY CARAMELO, and LINDA ELIZABETH, Plaintiffs, v. INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a/Aupair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.E.X. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAuPair, and GOAUPAIR OPERATIONS, LLC, d/b/a GoAuPair, Defendants, Civil Action No. 14-cv-03074-CMA-KMT (D. Colo.), Judge Christine M. Arguello of the U.S. District Court for the District of Colorado denied the parties' competing Motions for Summary Judgment. Most of the Motions for Summary Judgment in this antitrust action were filed on Feb. 16, 2018. Various Defendants responded to the Plaintiffs' Motion for Summary Judgment on March 16, 2018. The Plaintiffs replied in support of their Motion for Summary Judgment on April 13, 2018. With the Court's permission, Defendants American Cultural and GoAuPair filed a Joint Sur-Reply in opposition to the Plaintiffs' Motion for Summary Judgment on May 3, 2018. The Plaintiffs responded to all the Defendants' Motions for Summary Judgment in a consolidated Response on March 17, 2018. Certain Defendants jointly replied in support of their Motions for Summary Judgment on April 13, 2018. Upon review of the parties' numerous, lengthy briefings and the evidence referenced therein, Judge Arguello determines that genuine issues of material fact preclude the Court from granting any of the Motions to Summary Judgment. Among the numerous genuine issues of material fact: (i) whether an anti-competitive conspiracy existed among and between the Defendants to fix au pairs' stipends at $195.75; (ii) whether increased competition in the au pair services market would change the market structure and increase au pairs' wages; (iii) whether RICO Defendants engaged in racketeering activity, such as wire fraud, by conveying false wage information to au pairs; (iv) whether the Defendants are joint employers of au pairs; and (v) whether the federal government intended for the statutes and regulations governing the au pair program to preempt state and local regulations. As such, no party is entitled to summary judgment. Accordingly, Judge Arguello denied all Motions for Summary Judgment. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/8omANQ from Leagle.com. Johana Paola Beltran, Lusapho Hlatshaneni, Beaudette Deetlefs & Alexandra Ivette Gonzalez, and those similarly situated, Plaintiffs, represented by Byron Pacheco -- bpacheco@bsfllp.com -- Boies Schiller & Flexner, LLP, Dawn Smalls -- dsmalls@bsfllp.com -- Boies Schiller & Flexner, LLP, Joshua James Libling -- jlibling@bsfllp.com -- Boies Schiller & Flexner, LLP, Juan Pablo Valdivieso -- jvaldivieso@bsfllp.com -- Boies Schiller & Flexner, LLP, Matthew Lane Schwartz -- mlschwartz@BSFLLP.com -- Boies Schiller & Flexner, LLP, Peter Murray Skinner -- pskinner@bsfllp.com -- Boies Schiller & Flexner, LLP, Randall Wade Jackson -- rjackson@bsfllp.com -- Boies Schiller & Flexner, LLP, Sabria Alexandria McElroy -- smcelroy@bsfllp.com -- Boies Schiller & Flexner, LLP, Sean Phillips Rodriguez -- srodriguez@bsfllp.com -- Boies Schiller & Flexner, LLP, Sigrid Stone McCawley -- smccawley@bsfllp.com -- Boies Schiller & Flexner, LLP & Alexander Neville Hood -- info@towardsjustice.org -- Towards Justice. Juliane Harning, Nicole Mapledoram, and those similarly situated, Laura Mejia Jimenez & Sarah Carolina Azuela Rascon, Plaintiffs, represented by Byron Pacheco, Boies Schiller & Flexner, LLP, Dawn Smalls, Boies Schiller & Flexner, LLP, Joshua James Libling, Boies Schiller & Flexner, LLP, Juan Pablo Valdivieso, Boies Schiller & Flexner, LLP, Matthew Lane Schwartz, Boies Schiller & Flexner, LLP, Peter Murray Skinner, Boies Schiller & Flexner, LLP, Sean Phillips Rodriguez, Boies Schiller & Flexner, LLP & Alexander Neville Hood, Towards Justice. Camila Gabriela Perez Reyes, Cathy Caramelo & Linda Elizabeth, Plaintiffs, represented by Byron Pacheco, Boies Schiller & Flexner, LLP, Joshua James Libling, Boies Schiller & Flexner, LLP, Sean Phillips Rodriguez, Boies Schiller & Flexner, LLP, Alexander Neville Hood, Towards Justice & Dawn Smalls, Boies Schiller & Flexner, LLP. InterExchange, Inc., Defendant, represented by Brooke A. Colaizzi -- bcolaizzi@shermanhoward.com -- Sherman & Howard, L.L.C., Raymond Myles Deeny -- rdeeny@shermanhoward.com -- Sherman & Howard, L.L.C., Alyssa Lauren Levy -- alevy@shermanhoward.com -- Sherman & Howard, L.L.C., Heather Fox Vickles -- hvickles@shermanhoward.com -- Sherman & Howard, L.L.C. & Joseph H. Hunt -- jhunt@shermanhoward.com -- Sherman & Howard, L.L.C. USAuPair, INC, Defendant, represented by Chanda Marie Feldkamp -- cfeldkamp@kellywalkerlaw.com -- Kelly & Walker, LLC & William James Kelly, III -- wkelly@kellywalkerlaw.com -- Kelly & Walker, LLC. GreatAuPair, LLC, Defendant, represented by Martin Jose Estevao -- mestevao@armstrongte -- Armstrong Teasdale, LLP, Meshach Yustine Rhoades -- mrhoades@armstrongteasdale.com -- Armstrong Teasdale, LLP & Vance Orlando Knapp -- vknapp@armstrongteasdale.com --- Armstrong Teasdale, LLP. Expert Group International, Inc, doing business as, Defendant, represented by Bogdan Enica, Bogdan Enica, Attorney at Law. EuRaupair InterCultural Child Care Programs, Defendant, represented by David Meschke -- dmeschke@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP & Martha Louise Fitzgerald -- mfitzgerald@bhfs.com -- Brownstein Hyatt Farber Schreck, LLP. Cultural Homestay International, Defendant, represented by Adam A. Hubbard -- aahubbard@hollandhart.com -- Holland & Hart, LLP, James Edward Hartley -- jhartley@hollandhart.com -- Holland & Hart, LLP & Jonathan S. Bender -- jsbender@hollandhart.com -- Holland & Hart, LLP. Cultural Care, Inc., doing business as, Defendant, represented by Diane Rebecca Hazel -- dhazel@lrrc.com -- Lewis Roca Rothgerber Christie LLP, James Michael Lyons -- jlyons@lrrc.com -- Lewis Roca Rothgerber Christie LLP, Jessica Lynn Fuller -- jfuller@lrrc.com -- Lewis Roca Rothgerber Christie LLP, Joan A. Lukey -- joan.lukey@choate.com -- Choate, Hall & Stewart, LLP, Justin J. Wolosz -- jwolosz@choate.com -- Choate, Hall & Stewart, LLP, Kevin Patrick O'Keefe -- kokeefe@choate.com -- Choate Hall & Stewart, LLP, Lyndsey Marie Kruzer -- lkruzer@choate.com -- Choate, Hall & Stewart, LLP, Michael T. Gass -- mgass@choate.com -- Choate, Hall & Stewart, LLP, Robert M. Buchanan, Jr. -- rbuchanan@choate.com -- Choate, Hall & Stewart, LLP & Samuel Newland Rudman -- srudman@choate.com -- Choate Hall & Stewart, LLP. AuPairCare, Inc., Defendant, represented by Jennifer Arnett Roehrich -- jarnett-roehrich@grsm.com -- Gordon & Rees LLP, Nathan Andrew Huey -- nhuey@grsm.com -- Gordon & Rees LLP, Peggy E. Kozal -- pkozal@grsm.com -- Gordon & Rees LLP & Thomas Baker Quinn -- tquinn@grsm.com -- Gordon & Rees, LLP. Au Pair International, Inc. & American Cultural Exchange, LLC, doing business as, Defendants, represented by Brett Michelle Mull -- mull@wtotrial.com -- Wheeler Trigg O'Donnell, LLP, Brian Alan Birenbach -- brian@rietzlawfirm.com -- Rietz Law Firm, LLC, Kathryn A. Reilly -- reilly@wtotrial.com -- Wheeler Trigg O'Donnell, LLP, Natalie Elizabeth West -- west@wtotrial.com -- Wheeler Trigg O'Donnell, LLP & Victor William Scarpato, III -- scarpato@wtotrial.com -- Wheeler Trigg O'Donnell, LLP. APF Global Exchange, NFP, doing business as, Defendant, represented by Susan M. Schaecher -- sschaecher@fisherphillips.com -- Fisher & Phillips, LLP. KINCAID INC: Fails to Pay OT Wages Under FLSA, Portillo Says ------------------------------------------------------------ ALONDRA PORTILLO, and all others similarly situated under 29 U.S.C. 216 (b) v. KINCAID, INC., CAMPUZANO MIDLOTHIAN, L.L.C., CAMPUZANO CEDAR HILL, L.L.C., and BRIAN HARDING, Case No. 3:18-cv-01759-C (N.D. Tex., July 6, 2018), alleges that the Defendants willfully and intentionally refused to pay the Plaintiff overtime wages as required by the Fair Labor Standards Act Kincaid, Inc., is a company that regularly transacts business within Dallas County. Campuzano Midlothian, L.L.C. is a company that regularly transacts business within Ellis County and Dallas County. Campuzano Cedar Hill, L.L.C. is a company that regularly transacts business within Dallas County. Brian Harding is a corporate officer, owner or manager of the Defendant Companies. The Defendant Companies are joint enterprises as the related activities between them, performed through unified operation and/or common control, are being done for a common business purpose. The Defendant Companies operate various "Campuzano" Mexican restaurants.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com KNORR-BREMSE AG: Baldassano Sues over No-Poach Agreements --------------------------------------------------------- STEPHEN BALDASSANO, individually and on behalf of all others similarly situated, Plaintiff v. KNORR-BREMSE AG; KNORR BRAKE COMPANY; NEW YORK AIR BRAKE COMPANY; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION; and FAIVELEY TRANSPORT NORTH AMERICA INC, Defendants, Case No. 2:18-cv-00916-CRE (W.D. Pa., July 13, 2018) alleges that the No-Poach Agreements of the Defendants violated the Sherman Act. According to the complaint, the Defendants entered into No-Poach Agreements wherein they conspired with each other to eliminate competition between themselves for employees. These agreements were executed and enforced by senior company executives and implemented throughout the companies' U.S. subsidiaries. The No-Poach Agreements were not reasonably necessary to any separate, legitimate business transaction or legitimate collaboration between the companies and disrupted the normal bargaining and price-setting mechanisms that apply in the labor market. Knorr-Bremse Aktiengesellschaft develops, produces, markets, and services braking systems for rail and commercial vehicles. The Company provides entrance, windscreen wiper, driver assistance, and power supply systems, as well as platform screen doors and torsional vibration dampers. Knorr-Bremse serves customers worldwide. [BN] The Plaintiff is represented by: Joel R. Hurt, Esq. Ruairi McDonnell, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Fourth Avenue, Suite 1300 Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 E-mail: jhurt@fdpklaw.com - and - Craig L. Briskin, Esq. MEHRI & SKALET, PLLC 1250 Connecticut Ave. N.W., Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 Facsimile: (202) 822-4997 E-mail: cbriskin@findjustic.com - and - Samuel J. Strauss, Esq. TURKE & STRAUSS, LLP 613 Williamson Street, Suite 201 Madison, WI 53703 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 E-mail: sam@turkestrauss.com KNORR-BREMSE AG: Marietta Files Suit Over No-Poach Conspiracy ------------------------------------------------------------- KORY MARIETTA individually and on behalf 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-00882 (W.D. Pa., July 6, 2018), challenges under the Sherman Act unlawful agreements between three of the world's largest rail equipment suppliers to restrain competition in the labor market in which they compete for employees. Specifically, the Plaintiff alleges, the Defendants and certain of their subsidiaries, collectively agreed not to solicit, recruit, or hire each other's employees without prior approval, or otherwise compete for employees (collectively, the "No-Poach Agreements" or the "No-Poach Conspiracy"). 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. KBC 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. New York Air Brake 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. 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. Wabtec is an industry leader in the freight and passenger rail segments of the rail equipment industry, manufacturing and servicing products such as brake systems, positive train control systems, and new locomotives. 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. On November 30, 2016, Wabtec acquired majority ownership of Faiveley Transport S.A., which had been a French societe anonyme based in Gennevilliers, France. Faiveley develops, manufactures, and sells passenger and freight rail equipment to customers in Europe, Asia, and North America, including the United States.[BN] The Plaintiff is represented by: Joel R. Hurt, 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 - and - John C. Evans, Esq. JCEVANS LAW, P.C. 436 7th Avenue Koppers Building, The 26th Floor Pittsburgh, PA 15219 Telephone: (412) 642-2300 Facsimile: (412) 642-2309 E-mail: jcevans@jcevanslaw.com - and - Hollis Salzman, Esq. Kellie Lerner, Esq. ROBINS KAPLAN LLP 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980-7400 Facsimile: (212) 980-7499 E-mail: hsalzman@robinskaplan.com klerner@robinskaplan.com - and - Thomas J. Undlin, Esq. ROBINS KAPLAN LLP 800 LaSalle Avenue, Suite 2800 Minneapolis, MN 55 Telephone: (612) 349-8500 Facsimile: (612) 339-4181 E-mail: tundlin@robinskaplan.com - and - Tai S. Milder, Esq. Aaron M. Sheanin, Esq. ROBINS KAPLAN LLP 2440 West El Camino Real, Suite 100 Mountain View, CA 94040 Telephone: (650) 784-4024 Facsimile: (650) 784-4041 E-mail: tmilder@robinskaplan.com asheanin@robinskaplan.com KOHL'S DEPARTMENT: S. Collins' Wage Suit Moved to E.D. Wis. ----------------------------------------------------------- The United States District Court for the District of Connecticut granted Defendant's Motion to Transfer Venue in the case captioned STACY COLLINS, individually and on behalf of other similarly situated individuals, Plaintiffs, v. KOHL'S DEPARTMENT STORES, INC., and KOHL'S CORPORATION, Defendants, No. 3:18-cv-00065 (VAB)(D. Conn.). The case is transferred to the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. Kohl's allegedly hired Ms. Collins to work in its store in Enfield, Connecticut. After going through management training, Ms. Collins allegedly was assigned to be the Children, Footwear and Home Assistant Store Manager. Kohl's allegedly transferred Ms. Collins to its store in Manchester, Connecticut, where she also worked as the Children, Footwear and Home Assistant Store Manager until approximately July 2015. Ms. Collins alleges that Kohl's classifies the Assistant Store Managers ("ASMs") as exempt from overtime, and that it pays them a weekly salary with no overtime compensation for working more than forty hours in a week. The Court first must consider whether the action sought to be transferred is one that 'might have been brought' in the transferee court. Kohl's argues that this case could have been brought in the Eastern District of Wisconsin because its principal place of business is there. Ms. Collins does not dispute that the case could have been filed there. The Court agrees and finds that the Eastern District of Wisconsin would have been a proper venue for this case. The Court must next determine whether the transfer promotes convenience and justice. The following factors inform that analysis: (1) the plaintiff's choice of forum; (2) the convenience of witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the convenience of parties; (5) the locus of operative facts; (6) the availability of process to compel the attendance of unwilling witnesses; and (7) the relative means of the parties. Ms. Collins's Choice of Forum Ms. Collins argues that courts generally give substantial consideration' to a plaintiff's choice of forum. In support of this argument, she cites Kalapos, which, however, involved an individual plaintiff, MAK Marketing, Inc., not a putative class or collective action. Although ordinarily, a plaintiff's choice of forum is given great weight' in the analysis required by Section 1404(a), when the plaintiff brings a class action rather than an individual action, her choice of forum is entitled to less weight Another case cited by Ms. Collins is a putative collective action, and the Court did give great weight to the plaintiff's choice of forum. In light of these cases and arguments, the Court gives some weight, but not substantial weight, to Ms. Collins's choice of venue. The Convenience of the Witnesses If this case were limited to the operations of Kohl's in the State of Connecticut, then this argument would strongly favor this case remaining in the District of Connecticut. This case, however, is not limited to Connecticut. In addition to seeking to represent all ASMs in the State of Connecticut, through her claim under the Connecticut Wage Act, Ms. Collins also seeks to represent ASMs all over the country through her claim under the Fair Labor Standards Act. And, the operative facts with respect to these class members are not likely to be in Connecticut or even the Northeast, because the overwhelming number of Kohl's stores are located elsewhere. The vast presence of Kohl's stores outside of the District of Connecticut and hence, the vast presence of class members outside of the District of Connecticut, thus significantly favors transfer to Wisconsin. The Locus of Operative Facts At this point in the case, the Assistant Store Managers are located in the Northeast and have hired counsel from the Northeast. The locus of operative facts attached to those individuals thus far is closer to Connecticut than Wisconsin. But, Ms. Collins has not chosen to bring a class and collective action to represent Kohl's Assistant Store Managers in just Connecticut, or even just the Northeast. Ms. Collins instead has brought a nation-wide lawsuit and therefore the locus of operative facts will be Kohl's stores all across the country. Indeed, as alleged by Ms. Collins, Kohl's has stores in forty-nine of this country's fifty states. As a result, this factor significantly favors transfer. The Availability of Process to Compel the Attendance of Unwilling Witnesses Under Federal Rule of Civil Procedure 45(c)(1)(A), a subpoena may command a person to attend a trial, hearing, or deposition only as follows: A within 100 miles of where the person resides, is employed, or regularly transacts business in person. Kohl's has asserted in Ms. Hart's Declaration that at least one third-party, the former Director of Human Resources Operations and Human Resources Compliance, has knowledge related to the case and may need to be served with a subpoena, and that her last known address was within 100 miles of Menomonee Falls, Wisconsin. The Court finds that this factor weighs slightly in favor of transfer because the only third-party witness that the parties have identified who may need to be commanded to testify by subpoena is likely living in Wisconsin. The Relative Means of the Parties The Court finds these factors the forum's familiarity and the interests of justice to be neutral. While Ms. Collins correctly notes that transfer may delay the case in the short run, given the span of the case, it may be more efficient to litigate in a district with a less congested docket. Still, this Court has the authority to appropriately pace cases on its docket. The Court therefore does not find that these factors necessarily weigh in favor of transfer. In addition, both courts are familiar with and have an interest in the administration of federal law. These factors therefore are neutral. Whether Transfer Promotes Convenience and Justice Ms. Collins's choice of forum slightly disfavors transfer. The location of documents weighs only slightly in favor of transfer. The convenience for the parties, however, weighs in favor of transfer. The availability of compulsory process weighs slightly in favor of transfer. The relative means of the parties weighs slightly against transfer. The forum's familiarity with the governing law and the interests of justice factors are neutral. Most critically, the convenience of the witnesses and the locus of operative facts, often cited as the two most important factors in the Court's analysis of whether to transfer a case, both weigh significantly in favor of transfer. Considering all of these factors together, the Court exercises its discretion and thus finds that the interests of convenience and justice favor transfer The motion to transfer venue to the Eastern District of Wisconsin therefore is granted. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/y8pddlu5 from Leagle.com. Stacy Collins, individually and on behalf of all other similarly situated individuals, Plaintiff, represented by Gary Edward Phelan -- gphelan@mitchellandsheahan.com -- Mitchell & Sheahan, P.C., Richard Eugene Hayber -- rhayber@hayberlawfirm.com -- The Hayber Law Firm LLC, Michael T. Petela, Jr. , The Hayber Law Firm, LLC, Peter Delano -- pdelano@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. Kohl's Dept Stores, Inc & Kohl's Corporation, Defendants, represented by Bonnie Keane DelGobbo -- bdelgobbo@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Joel Griswold -- jcgriswold@bakerlaw.com -- Baker & Hostetler, LLP & Saima Z. Sheikh -- ssheikh@bakerlaw.com -- Baker & Hostetler LLP. KUSHNER COS: Judge Allows Tenants' Class Action to Proceed ---------------------------------------------------------- Alec MacGillis, writing for ProPublica, reports that a Maryland judge is allowing a class action lawsuit against Jared Kushner's family real estate company to proceed, in a ruling that denies most of the company's arguments to dismiss the case over its treatment of tenants at large apartment complexes in the Baltimore area. The lawsuit, filed last September in the Circuit Court for Baltimore City, alleges that the Kushner Companies' real estate management arm, Westminster Management, has been improperly inflating payments owed by tenants by charging them late fees that are often baseless and in excess of state laws limiting them to 5 percent of rent. The suit also claims that Westminster was making some tenants pay so-called court fees that are not actually approved by any court. The suit alleges that the late fees and court fees set in motion a vicious churning cycle in which rent payments are partly put toward the fees instead of the actual rent owed, thus deeming the tenant once again "late" on his or her rent payment, leading to yet more late fees and court fees. Tenants are pressured to pay the snowballing bills with immediate threat of eviction, the suit alleges. The lawsuit followed a May 2017 article co-published by ProPublica and The New York Times Magazine that described the highly aggressive legal tactics used by Kushner Companies to pursue tenants and former tenants at 15 apartment complexes in the Baltimore area. The company's motion to dismiss the lawsuit was heard on July 18 by Barry Williams, the same judge who presided over the cases against the six police officers involved in the arrest and transport of Freddie Gray, the 25-year-old Baltimore man who suffered fatal injuries after being taken into custody in 2015. None of the six officers was convicted. In his ruling, Judge Williams denied the bulk of the company's motion to dismiss the case, including its argument that too much time had passed since the events the suit described. Judge Williams also rejected for now, deeming it premature, the company's argument that each tenant's situation is too unique for the group to constitute a single class. Judge Williams did grant a couple of points in the company's motion. Most notably, he granted the company's motion to dismiss the count of the lawsuit alleging that the company's treatment of tenants represented a breach of contract. Andrew Freeman, a lawyer representing the tenants, said dismissing the breach of contract count had little practical effect, given that this count provided no damages beyond what the tenants would recover under the separate claim that the company's late fees exceeded state limits. Mr. Freeman cheered the ruling overall. "We are very pleased that Judge Williams recognized that plaintiffs have a claim for a violation of Maryland's laws that protect tenants from excessive late fees and forbid landlords from threatening tenants with eviction for those not paying those fees, and that he refused to dismiss our class action allegations," he said. "We look forward to proceeding with the case on behalf of the many hundreds, if not thousands, of Westminster Management's tenants who have been victimized by those illegal fees." Michael Blumenfeld, a lawyer representing the Kushner Companies, said the company was pleased that Williams had limited the lawsuit on a few points, and indicated that the company still plans to challenge the assertion that the tenants make up a single class. "Kushner Companies looks forward to presenting these issues to the court soon," he said. The company declined to comment on the merits of the lawsuit at the time it was filed, but did respond to questions about its tactics for the May 2017 article, saying that its approach to pursuing tenants was in line with industry practices and that it had a fiduciary duty to its partners to collect all money owed by current and former tenants. The lawsuit now moves to the discovery stage. A hearing on the tenants' claim to class certification could happen as soon as September. In November, Kushner Companies and related corporate entities named in the suit sought to have the case transferred from state court to federal court, which would spare the company from having to face a jury drawn only from Baltimore. To prevail on such grounds, the company had to show that none of its ownership partners were Maryland residents. The company requested that its list of partners be sealed from view, citing the "politically-motivated innuendo" that could result from the high degree of media interest in Jared Kushner, President Donald Trump's son-in-law and senior White House adviser, who has recused himself from a role in the family companies. The request to shield the partners' identities was challenged by ProPublica, the Baltimore Sun, the Washington Post, the Associated Press, and Baltimore TV station WMAR-TV. In January, a federal judge ruled against the request to seal the partners' identities. As a result, the company opted to keep the case in state court after all. Kushner Companies is also facing a separate lawsuit filed by tenants in New York, alleging a whole other set of behaviors in that much different real estate market: that it used harassing tactics to drive them out of their apartments in order to charge higher rent. The company has called that suit "totally without merit." [GN] L'OREAL USA: Faces Hubbard Suit Over Use of Consumer Reports ------------------------------------------------------------ DEBORAH HUBBARD, Individually and on Behalf of All Others Similarly Situated v. L'OREAL USA, INC., and DOES 1 through 10, inclusive, Case No. CGC-18-567952 (Cal. Super. Ct., San Francisco Cty., July 10, 2018), arises from L'Oreal's alleged acquisition and use of consumer and/or investigative consumer reports as those terms are defined by the Fair Credit Reporting Act, as well as the Defendant's practice of conducting background checks on the Plaintiff and other prospective, current and former employees. L'Oreal USA, Inc., is a Delaware corporation headquartered in New York City. The Plaintiff is unaware of the true names or capacities of the Doe Defendants. L'Oreal is one of the world's largest cosmetics manufacturers. The Company's cosmetic line includes brand names, such as L'Oreal, L'Oreal Professionnel, Maybelline, Ralph Lauren Fragrances, and Giorgio Armani Parfums.[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 - and - Thomas D. Rutledge, Esq. THE LAW OFFICES OF THOMAS D. RUTLEDGE 500 West Harbor Drive, Suite 1113 San Diego, CA 92101 Telephone: (619) 886-7224 Facsimile: (619) 259-5455 E-mail: thomasrutledgelaw@gmail.com - and - Brian R. Short, Esq. SHORTLEGAL, APC 350 10th Avenue, Suite 1000 San Diego, CA 92101 Telephone: (619) 272-0720 Facsimile: (619) 839-3129 E-mail: brian@shortlegal.com LANG PHARMA: Settles Class Action Over Co-Q10 Supplements --------------------------------------------------------- A proposed settlement has been reached in a class action lawsuit involving Lang Pharma Nutrition, Inc., a manufacturer of CoQ-10 supplements, and Wal-Mart Stores, Inc., CVS Pharmacy, Inc., Walgreen Company, and Meijer Distribution, Inc, retailers. The settlement establishes a $1,306,000 fund of cash and product credits. On July 6th, 2018, California Superior Court Judge Joel R. Wohlfeil preliminarily approved a settlement of a lawsuit between the above defendants and purchasers of certain Co-Q10 supplements. The lawsuit alleged that Defendants violated certain laws by misleadingly labeling or falsely advertising their CoQ-10 supplements as being more effective than they are and has having greater absorption rates then they do. Defendants deny the allegations and any wrongdoing and maintain that the products are effective and achieve the stated absorption rates. The Court did not rule in favor of Plaintiffs or Defendants. Instead, because of the complexity and uncertainty of litigation, the parties compromised and negotiated and agreed to a proposed settlement in order to avoid the expense and risks of continuing with the lawsuit. The proposed class settlement provides $1,306,000 in relief. This relief will be comprised of three parts: (1) $656,000 cash fund; (2) $650,000 in products credits; and (3) mandatory disclosures on the product labels. Class members, who purchased certain Lang Pharma Nutrition CoQ-10 supplements at Wal-Mart, CVS, Walgreens, and Meijer stores between July 1, 2013 and July 24, 2018, may be eligible for a partial refund or product credits under the settlement terms and are advised to carefully read the Class Notice as their legal rights may be affected whether they act or not. The covered products are listed below: -- Wal-Mart's Equate Clinical Strength High Absorption CoQ-10 100 mg; -- CVS/Pharmacy Ultra CoQ-10 100 mg; -- CVS/Health Ultra CoQ-10 100 mg; -- CVS/Pharmacy Enhanced Absorption Formula CoQ-10 100 mg; -- CVS/Health Enhanced Absorption Formula CoQ-10 100 mg; -- Walgreens Well at Walgreens CoQ-10 Enhanced Absorption Formula 100 mg -- Walgreens Well at Walgreens CoQ-10 Enhanced Absorption Formula 200 mg; -- Meijer's Ultra CoQ-10 100 mg ("Meijer Ultra CoQ-10"). Class Members who file a valid claim form must choose between a partial cash refund of $3.50 or a product credit valued at $12.50 that may be used at a designated Lang Pharma website within 60 days. The amount of the cash refund and the product credit are estimates and may increase or decrease depending on the number of valid claims made by class members. Claims can be submitted online at the class website www.Q10Settlement.com. Claims must be submitted by September 4, 2018. Class members may request to be excluded from the class ("opt out" of the settlement), comment on the settlement, or object to the settlement, but must do so by September 4, 2018. Class members who do nothing will not receive any payment but will bound by the Court's decision. Your rights and options -- and the deadlines to exercise them -- are only summarized in this press release. It is only a summary of the full class action settlement. A Detailed Notice describes, in full, how to file a claim, object, or exclude yourself, and provides other important information. For more information and to obtain a Long Form Notice, claim form, or other documents, visit www.Q10Settlement.com, call toll-free 1-866-532-6710, or write to: Q10 Settlement Class Action Administrator, c/o Classaura Class Action Administration, 1718 Peachtree St #1080, Atlanta, GA 30309. [GN] LOST DOG: Classes in FLSA Suit Have Prelim Certification -------------------------------------------------------- In the case, VICTOR DIAZ, on his own behalf and on behalf of all others similarly situated, Plaintiff, v. LOST DOG PIZZA, LLC, DANIEL WARREN LYNCH, and JEFF SMOKEVITCH, Defendant, Civil Action No. 17-cv-2228-WJM-NYW (D. Colo.), Judge William J. Martinez of the U.S. District Court for the District of Colorado granted in part and denied in part the parties' Joint Motion to Adopt Parties' Stipulation of Preliminary Certification of a Fair Labor Standards Act Section 216(b) Class and Certification of a Federal Rule of Civil Procedure 23 Class and for Court-Authorized Notice to Class Members. The action is brought under the Fair Labor Standards Act ("FLSA"), and the Colorado Minimum Wage Act. As alleged in the Complaint, the Plaintiff and the other members of the proposed class were hourly employees at the Defendants' Brown Dog Pizza restaurant in Telluride, Colorado. The Plaintiff worked for the Defendants from approximately 2009 through April 2017. He alleges the Defendants refused to pay him and other members of the proposed class overtime for hours worked beyond forty each workweek and beyond twelve each workday, in violation of the FLSA and the Wage Act. The Plaintiff alleges that the Defendants subjected not only himself, but all their hourly employees to a common policy of refusing to pay overtime wages for hours worked beyond forty each workweek and beyond 12 each workday. Further, he alleges that upon separation, the Defendants did not pay him all of his earned, vested and determinable wages, and failed to pay other employees all of their earned and vested wages upon termination, as is required under the Wage Act. As set out in the present Joint Motion, and in the parties' related filings, since the case was filed in September 2017, the parties have been working to negotiate a settlement agreement. Thus they have jointly stipulated to the preliminary FLSA and Rule 23 class certification and notice procedure, as proposed in the Joint Motion, and represent that at the end of the proposed notice and opt-in/opt-out period, the parties will have the benefit of full information as to potential damage and intend to negotiate the monetary terms of settlement upon receipt of that information. The parties represent that upon agreement to terms of settlement, they will submit their settlement agreement to the Court for approval, to be followed by a final fairness hearing. The parties have stipulated to the following class definitions: (1) As to the Plaintiff's Wage Act class action claims, a class defined as all hourly employees who worked at Brown Dog Pizza on or after Sept. 14, 2015 and who were not paid overtime wages for overtime hours worked. (2) As to the Plaintiff's FLSA collective action claims, a group defined as all hourly employees who worked at Brown Dog Pizza on or after Sept. 14, 2014 and who were not paid overtime wages for overtime hours worked. The parties jointly propose a two-part notice procedure for the FLSA opt-in and Rule 23 opt-out classes. First, the parties propose (and have agreed to) a 45-day opt-in period during which potential FLSA class members may return their opt-in forms. The parties have also proposed (and agreed to) proposed Notice and Opt-In Forms. Second, the parties propose that after the close of the 45-day opt-in period, a designated Class Administrator will issue a Rule 23 class (i.e., the opt-out class) Notice, in the Form proposed and agreed by the parties. Having reviewed the record and being fully advised, Judge Martinez agrees with the parties' conclusion that the class certification is appropriate under Rule 23(b)(3). As to Rule 23, and given the parties' stipulation and joint motion, he also finds that preliminary certification of the proposed FLSA class is warranted under the comparatively lenient standard for preliminary certification and notice of an FLSA collective action. Accordingly, the parties' present Motion will be granted in part in that the Judge will approve the proposed FLSA Notice and opt-in Consent to Join form, subject to the Court's modifications. Per the parties' representations and requests, all Notices and written communications with potential class members will be made in both the English and Spanish languages. Given the lack of information regarding the anticipated settlement, the Judge cannot give its preliminary approval to a non-consummated settlement agreement at this time, and therefore also cannot approve the parties' proposed Rule 23 Notice. The parties' present Motion will be denied in part without prejudice to refiling as to the parties' proposed Rule 23 class notice on the Wage Act claim, and he will set out a procedure for the anticipated filing, preliminary approval, and final approval of a settlement agreement. For the reasons, Judge Martinez granted in part the parties' Joint Motion. He conditionally certified as a collective action under 29 U.S.C. Section 216(b), with the collective action members eligible to opt-in to the Plaintiff's Second Claim for Relief defined as all hourly employees who worked at Brown Dog Pizza on or after Sept. 14, 2014 and who were not paid overtime wages for overtime hours worked. He also certified the class, as to the Plaintiff's First and Third Claims for Relief, defined as all hourly employees who worked at Brown Dog Pizza on or after Sept. 14, 2015 and who were not paid overtime wages for overtime hours worked. Plaintiff Victor Diaz is approved as the class representative; and Brandt Milstein, Milstein Law Office, 1123 Spruce Street, Suite 200, Boulder, CO 80302, as the class counsel. Judge Martinez approved as modified the form of the FLSA opt-in Notice and Consent to Join, and subject to incorporation of the edits reflected in the first attachment to the Order. The parties will effect notice to potential conditional action members as follows: a. No later than June 25, 2018, the Plaintiff will file a notice docketing a Spanish language translation of the Court-approved Notice and Consent to Join Form. b. No later than July 2, 2018, the Plaintiff will mail the final FLSA Notice and Consent to Join Form, incorporating the Court's modifications, in both English and Spanish, to all potential collective action members via first-class U.S. Mail. Further, the Plaintiff will file a Notice of Completion of Mailing notifying the Court when this mailing has been completed, and this mailing will identify the parties' selected Class Administrator. c. Consistent with the parties' stipulations, the Defendants will include a copy of the FLSA Notice and Consent to Join forms in English and Spanish in the pay envelopes of all putative class members who currently work for the Defendants, and will post copies of the Notice and Consent to Join form, in English and Spanish, in areas readily and routinely available for review by potential class members. The Potential FLSA collective action participants will have until Aug. 17, 2018 to return the Consent to Join Form. No later than Aug. 31, 2018, assuming a settlement agreement on the Wage Act claim has been finalized, the parties will file a copy of that settlement agreement together with a motion for its preliminary approval and proposed class notice form. This filing must include the anticipated amount to be paid to each Rule 23 Wage Act class member. If no settlement agreement has been finalized, the parties will instead file a status report. Upon receipt of a Motion for Preliminary Approval of Settlement, the Court will determine whether to approve the anticipated settlement and, as needed, approve notice of the Rule 23 class certification and settlement, and set a final fairness hearing and related deadlines for filing objections and a request for final approval. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/6Mpysl from Leagle.com. Victor Diaz, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by Brandt Powers Milstein -- brandt@milsteinlawoffice.com -- Milstein Law Office. Lost Dog Pizza, LLC, Daniel Warren Lynch & Jeff Smokevitch, Defendants, represented by Juli Elizabeth Lapin -- juli@rwolaw.com -- Robinson Waters & O'Dorisio, P.C.. MARTIN-BROWER CO: Deal in J. Titus' Labor Suit Has Final Approval ----------------------------------------------------------------- In the case, JUSTIN TITUS, individually and on behalf of all others similarly situated, Plaintiff, v. THE MARTIN-BROWER COMPANY, LLC; and DOES 1-100 inclusive, Defendants, Case No. 2:17-cv-00558-JAM-GGH (E.D. Cal.), Judge John A. Mendez of the U.S. District Court for the Eastern District of California granted final approval of the parties' Class Action Settlement Agreement, and the Plaintiff's Motion for Fees and Costs. For the purpose of settlement, the Judge finally certified the class of all persons who have been employed by the Defendant as a non-exempt truck driver at its facility in Stockton, California at any time during the period from March 15, 2013 through Feb. 27, 2018. He finally appointed Plaintiff Justin Titus as the Class Representative; and Craig J. Ackermann and Avi Kreitenberg of Ackermann & Tilajef, P.C., and Robert J. Wasserman of Mayall Hurley P.C. as the counsel for the Class. He also confirmed the appointment of Atticus Administration, LLC as the Settlement Administrator. The Class Representative Service award of $7,500 is granted to the Plaintiff. The Class Representative Service Award will be paid to Plaintiff in accordance with the terms of the Settlement. Judge Mendez also granted the Plaintiff's motion for attorneys' fees and costs in the amount of $98,250 in fees and costs in the amount of $2,899.49. The attorneys' fees and costs will be paid by the Defendant to the Class Counsel in accordance with the terms of the Settlement. He also ordered the Defendant to separately pay the $7,000 in mediation fee to the Class Counsel. He granted final approval of the $5,761 designated for payment to Atticus, and ordered the Parties to make the payment to the Settlement Administrator in accordance with the Settlement. The Judge approved the allocation of $10,000 of the Settlement as payment for penalties under the California Labor Code Private Attorney Generals Act ("PAGA"), and further approved of payment of $7,500 to the Labor and Workforce Development Agency for its portion of the PAGA penalties pursuant to Cal. Labor Code sections 2698-2699. In the event that a Settlement check cannot be delivered to a Class Member, or a Class Member does not cash a Settlement checks after the events and deadlines set forth in Section 3.8(B) of the Settlement, then the Settlement Administrator will redistribute the amount associated with the checks to the State of California's Unclaimed Wages Fund, administered by the DLSE. Final Judgment is entered based on the Parties' settlement agreement. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/0dNwr6 from Leagle.com. Justin Titus, Plaintiff, represented by Craig Justin Ackermann, Ackermann & Tilajef, P.C., Nicholas John Scardigli -- nscardigli@mayallaw.com -- Mayall Hurley, PC, Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC, Vladimir Joseph Kozina -- vjkozinaj@mayallaw.com -- Mayall Hurley, P.C. & William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley, PC. Martin-Brower Company, LLC, Defendant, represented by Reiko Linda Furuta -- rfuruta@seyfarth.com -- Seyfarth Shaw LLP & David D. Jacobson -- djacobson@seyfarth.com -- Seyfarth Shaw LLP. MASSACHUSETTS MUTUAL: Oct. 25 Settlement Approval Hearing Set ------------------------------------------------------------- SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES- SPRING STREET COURT If you are or were a Massachusetts Mutual Life Insurance Company policyholder of certain participating individual term life policies, or the beneficiary, you are part of a class action settlement. IMPORTANT- PLEASE READ THIS NOTICE CAREFULLY THIS NOTICE RELATES TO A CLASS ACTION LAWSUIT AND, IF YOU ARE A SETTLEMENT CLASS MEMBER, CONTAINS IMPORTANT INFORMATION A California State Court authorized this notice. You are not being sued. This is not a solicitation from a lawyer. A settlement has been reached in a class action lawsuit against Massachusetts Mutual Life Insurance Company ("MassMutual"). The lawsuit alleges that MassMutual breached contractual obligations under certain term insurance contracts to annually determine if they contributed to divisible surplus and, if so, whether dividends were owed. MassMutual denies all of the allegations, contends it made the annual determinations, and contends the term policies never earned dividends. You are included in the settlement if you are a current or former MassMutual participating term policyholder, or if such policyholder is deceased, the beneficiary under such policy, of a participating term life insurance contract that was issued or remained in force on or after January 1, 1996. Please read this notice carefully. Your legal rights are affected whether you act or don't act. THIS TABLE SUMMARIZES YOUR LEGAL RIGHTS AND OPTIONS UNDER THE SETTLEMENT EXCLUDE YOURSELF BY SEPTEMBER 14, 2018 Write to the Settlement Administrator if you'd like to exclude yourself from the settlement. You will retain any rights you currently have, if any, to pursue claims against MassMutual about the allegations in this case. OBJECT BY SEPTEMBER 14, 2018 Write to the Settlement Administrator if you don't like the settlement to explain why you object. ATTEND A HEARING Ask to speak in Court about the fairness of the settlement. DO NOTHING You will give up your rights to sue MassMutual about the allegations in this case, but will still receive the settlement benefits. BASIC INFORMATION 1. What is this notice and why should I read it? A court authorized this notice to let you know about a proposed class settlement of a lawsuit called Chavez v. Massachusetts Mutual Life Insurance Company, No. BC435321 (the "Action") pending in the Superior Court of the State of California. This notice describes the settlement. Please read this notice carefully to determine whether you wish to participate in the settlement. Your rights and options—and the deadlines to exercise them -- are explained in this notice. Please understand that if you are a Settlement Class Member, your legal rights are affected regardless of whether you act. 2. What is a class action lawsuit? A class action is a lawsuit in which one or more plaintiffs -- in this case, Christina Chavez (the "Plaintiff") -- sue on behalf of a group of people who allegedly have similar claims. After the Parties agreed to settle, the Court granted preliminary approval of the settlement and preliminarily determined that the case should be treated as a class action for settlement purposes. Among other things, preliminary approval permits Settlement Class Members to exclude themselves from the Settlement Class and to voice their support of or objection to the settlement before the Court makes a final decision whether to approve the settlement. In a class action, the court resolves the issues for all class members, except those who exclude themselves from the class. THE CLAIMS IN THE LAWSUIT AND THE SETTLEMENT 3. What is this lawsuit about? Plaintiff filed a class action complaint against MassMutual on behalf of a class of participating term policyholders, alleging that MassMutual breached contractual obligations to annually determine if participating term policies contributed to divisible surplus and, if so, whether they earned dividends. A more complete description of what Plaintiff alleges is in the Second Amended Complaint, which is available on the Settlement Website at www.CHAVEZMMTERMSETTLEMENT.com. MassMutual denies Plaintiff's claims. MassMutual claims it annually determined that the policies did not contribute to divisible surplus and, thus, were not owed dividends. MassMutual's answer to the allegations in the complaint is available on the Settlement Website at www.CHAVEZMMTERMSETTLEMENT.com. MassMutual is settling the Action solely to avoid the expense, inconvenience, delay, risk, and disruption of litigation. 4. Why is there a settlement? After eight years of litigation, a jury trial was held on the claims of one subclass of MassMutual participating term policyholders in what is known as a bellwether trial. The jury found that, although MassMutual had not performed an annual determination, no dividends were owed to term policyholders. Both sides then agreed to settle to avoid the cost, delay, and risk of any additional trials or appeals, and to provide current and former policyholders substantial benefits. (See Question 6.) Plaintiff and Class Counsel think the settlement is in the best interests for everyone who owned a participating MassMutual term policy covered by the settlement. WHO'S INCLUDED IN THE SETTLEMENT? 5. How do I know if I am a Settlement Class Member? The Court decided that everyone who fits this description is a Settlement Class Member: All current and former MassMutual individual participating term policyholders, and if such policyholders are deceased, the beneficiaries under such policies, of participating term life insurance contracts that were issued or remained in force on or after January 1, 1996. The MassMutual participating term policies include: Adjustable Premium Term 70 (APT70) (aka 89 Series Adjustable Premium Term; policy form 404-1C-8900); Adjustable Premium Term 80 (APT80) (aka 89 Series Adjustable Premium Term; policy form 404-1A8900); Term 10 (T10) (aka 93 Series Term 10; policy form 406-9300); Enhanced Term 10 (ET10) (aka 93 Series Enhanced Term 10; policy form 406-9300); Adjustable Premium Term 70 (APT70) (aka 93 Series Adjustable Premium Term; policy form 404-NY-9300); Adjustable Premium Term 80 (APT80) (aka 93 Series Adjustable Premium Term; policy form 404-9300); Term 5 (T5) (aka 98 Series Term 5; policy form 404-9300); Term 10 (T10) (aka 98 Series Term 10; policy form 404-9300); Term 10 Guaranteed (T20G) (aka 98 Series Term 10 Guaranteed; policy form 404-9300); Term 15 (T15) (aka 98 Series Term 15; policy form 404-9300); Term 20 (T20) (aka 98 Series Term 20; policy form 404-9300); Term 5 (T5) (aka 99 Series Term 5; policy form 404-9300); Term 10 Guaranteed (T10G) (aka 99 Series Term 5; policy form 404-9300); Term 15 (T15) (aka 99 Series Term 15; policy form 404-9300); Term 20 (T20) (aka 99 Series Term 20; policy form 404-9300); Adjustable Premium Term 80 (APT80-99) (aka 99 Series Adjustable Premium Term; policy form 404-9300); Term 20 Guaranteed (T20G) (aka 99 Series Term 20 Guaranteed; policy form 404-9300); Term 5 Guaranteed (T5G) (aka 2004 Series Term 5 Guaranteed; policy form 404-9300 T5G); Term 10 Guaranteed (T10G) (aka 2004 Series Term 10 Guaranteed; policy form 404-9300 T10G); Term 20 Guaranteed (T20G) (aka 2004 Series Term 20 Guaranteed; policy form 404-9300 T20G); Term 30 Guaranteed (T30G) (aka 2004 Series Term 30 Guaranteed; policy form 404-9300 T30G); Term 5 Guaranteed (T5G) (aka 2005 Series Term 5 Guaranteed; policy form 408-2005 5G); Term 10 Guaranteed (T10G) (aka 2005 Series Term 10 Guaranteed; policy form 408-2005 10G); Term 20 Guaranteed (T20G) (aka 2005 Series Term 20 Guaranteed; policy form 408-2005 20G); Term 30 Guaranteed (T30G) (aka 2005 Series Term 30 Guaranteed; policy form 408-2005 30G); Convertible Annual Renewable Term (ART06) (aka 2006 Series ART; policy form 410-2006); Vantage Term-Annually Renewable Term (VTART) (aka 2010 Series Adjustable Premium Term; policy form TL-2009 VTART); Vantage Term 10 (VT10) (aka 2010 Series Term 10 Guaranteed; policy form TL-2009 VT10); Vantage Term 20 (VT20) (aka 2010 Series Term 20 Guaranteed; policy form TL-2009 VT20). Excluded from the Settlement Class are: (1) the Honorable Maren E. Nelson of the Superior Court of the State of California for the County of Los Angeles (or other judge presiding over the Action through which this matter is presented for settlement) and court personnel employed in Judge Nelson's or such other Judge's chambers or courtroom; (2) any officer or director of MassMutual identified in MassMutual's Annual Statement who properly execute and file a timely Request For Exclusion; (3) the legal representatives, successors, or assigns of any such excluded persons (but only in their capacity as legal representative, successor, or assign); and (4) those persons, as identified by the Court in a Final Settlement Approval Order, who fit within the definition of the Settlement Class, but who timely submit a Request for Exclusion and thereby opt out of this Settlement as provided for in Section 3.7 of the Settlement Agreement. If you meet the class definition, and are not excluded, you are a Settlement Class Member. THE SETTLEMENT BENEFITS 6. What does the settlement provide? The settlement requires MassMutual to make annual determinations for at least ten years for each participating term policy covered by the settlement. MassMutual will implement additional practices to perform annual calculations to determine whether term policies contributed to divisible surplus and, if so, whether dividends are owed. MassMutual also will be required to prepare actuarial memoranda that summarize its calculations and determinations. MassMutual also has agreed to pay the full administrative costs of the settlement, including for notice. The Settlement Class will not incur any fees or costs to receive these benefits. THE LAWYERS REPRESENTING YOU 7. Who represents the Settlement Class? The Court has appointed the law firm of Gianelli & Morris, A Law Corporation, as Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. In addition, the Court appointed Plaintiff Christina Chavez to serve as the Class Representative. She is also a Settlement Class Member. 8. How will the lawyers be paid? From the beginning of the case, which was filed in April 2010, to the present, Class Counsel have not received any payment for their services in prosecuting the case or obtaining the settlement on behalf of the Settlement Class, nor have they been reimbursed for any out-of-pocket expenses. The Settlement Class Members will not have to pay anything toward the fees or expenses of Class Counsel, which Class Counsel waived to secure the benefits of the settlement for the Settlement Class. YOUR RIGHTS AND OPTIONS 9. What is the effect of final approval of the settlement? If the Court grants final approval of the settlement, a final order and judgment will be entered in the Action. All members of the Settlement Class will release and forever discharge MassMutual and each of the Released Parties from any and all Released Class Claims (as defined in the Settlement Agreement), including Unknown Claims. Please refer to Sections 1.6, 1.13 to 1.15, 1.24, and 5.2 of the Settlement Agreement, reproduced in Appendix A, for a full description of the claims and persons that will be released. The Settlement Agreement is available at www.CHAVEZMMTERMSETTLEMENT.com. Any and all members of the Settlement Class who do not exclude themselves will not be permitted to assert Released Claims in any other litigation against MassMutual or the other persons and entities covered by the release. If you do not wish to be a Settlement Class Member, you must timely exclude yourself. If the settlement is not approved, the case will proceed as if no settlement had been attempted or reached. In that event, there is no assurance that a class would be certified for litigation purposes or that members of any certified class will recover the same or better benefits than provided for under the settlement, or anything at all. The settlement of this lawsuit and the releases do not change any of your contractual rights under the express terms of your existing term life insurance policy(ies) for death benefits, including any supplemental benefits such as waiver of premium or accidental death benefits. 10. What happens if I do nothing at all? If you do nothing, you will release any claims you may have against MassMutual or the Released Parties concerning the conduct Plaintiff alleges in her complaint, though you will receive the benefits of the settlement. (See Question No. 13.) 11. How do I get out of the settlement? To exclude yourself from the Settlement Class, you must send a letter saying that you "wish to be excluded from the Settlement Class in Chavez v. Massachusetts Mutual Life Insurance Company, No. BC435321"; include your name and address, and your signature. Your Request For Exclusion must be postmarked no later than September 14, 2018, and sent to the Settlement Administrator at the following address: Chavez v. MassMutual Settlement Administrator, P.O. Box 2005, Chanhassen, MN 55317-2005. 12. What happens if I exclude myself from this settlement? If you exclude yourself from the Settlement Class, you cannot object to the settlement. You will not be legally bound by anything that happens in the Action. 13. If I don't exclude myself, can I sue MassMutual for the same thing later? No. Unless you exclude yourself, you give up any right to sue MassMutual for the claims being resolved by this settlement. 14. How do I object to the settlement? If you do not exclude yourself from the Settlement Class, you can object to the settlement if you don't like any part of it. If you object, you must give the reasons why you think the Court should not approve the settlement. The Court will consider your views. Your objection to the settlement must be postmarked no later than September 14, 2018, and sent to the Settlement Administrator at the following address: Chavez v. MassMutual Settlement Administrator, P.O. Box 2005, Chanhassen, MN 55317-2005. The objection must be in writing and include the case name Chavez v. Massachusetts Mutual Life Insurance Company, No. BC435321; also include your (a) name, (b) address, (c) a statement that you are a Settlement Class Member, (d) the specific grounds for the objection (including all arguments, citations, and evidence supporting the objection), (e) all documents or writings that you desire the Court to consider (including all copies of any documents relied upon in the objection), (f) your signature, and (g) a notice of intention to appear at the Final Approval Hearing (if applicable). The Court will consider all properly filed comments from Settlement Class Members. If you do not provide notice of intention to appear at the Final Approval Hearing, you or your attorney may nonetheless appear at the Final Approval Hearing. 15. What's the difference between objecting and excluding myself from the settlement? Objecting means telling the Court what you don't like about the settlement. You can object only if you stay in the Settlement Class. Excluding yourself from the Settlement Class is telling the Court that you don't want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you. THE COURT'S FINAL APPROVAL HEARING 16. When and where will the Court hold a hearing on the fairness of the settlement? A Final Approval Hearing has been set for October 25, 2018 at 9:00 a.m., before The Honorable Maren E. Nelson at 312 North Spring Street, Los Angeles, CA 90012 in Courtroom 17. At the hearing, the Court will hear any comments, objections, and arguments concerning the fairness of the proposed settlement. You do not need to attend this hearing. You also do not need to attend to have an objection considered by the Court. (See Question No. 17.) Note: The date and time of the Final Approval Hearing are subject to change by Court Order, but any changes will be posted at www.CHAVEZMMTERMSETTLEMENT.com and the toll-free settlement number at 1-800-419-3248. 17. Do I have to come to the Final Approval Hearing? No. Class Counsel will answer any questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you don't have to come to Court to talk about it. As long as any written objection you choose to make was filed and mailed to the Settlement Administrator on time and meets the other criteria described in the settlement (see Question No. 14), the Court will consider it. You may also pay another lawyer to attend, but you don't have to. 18. May I speak at the Final Approval Hearing? If you do not exclude yourself from the Settlement Class, you may speak at the Final Approval Hearing concerning any part of the proposed settlement. (See Question No. 14.) GETTING MORE INFORMATION 19. Where can I get additional information? This notice provides only a summary of the matters relating to the settlement. For more detailed information, you may wish to review the Settlement Agreement. You can view the Settlement Agreement and get more information at www.CHAVEZMMTERMSETTLEMENT.com. You also can get more information by contacting the Settlement Administrator at Chavez v. MassMutual Settlement Administrator, P.O. Box 2005, Chanhassen, MN 55317-2005, toll-free at 1-800-419-3248, or by email at info@CHAVEZMMTERMSETTLEMENT.com. In addition, the Settlement Agreement and all other pleadings and papers filed in the case are available for inspection and copying during regular business hours at the Civil Clerk's office located at 111 N. Hill Street, Room 112, Los Angeles, CA 90012. PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR THE DEFENDANT MASSMUTUAL WITH QUESTIONS ABOUT THE SETTLEMENT. MCLANE COMPANY: Magistrate Suggests Dismissal of FCRA Suit ---------------------------------------------------------- Magistrate Judge Andrew W. Austin of the United States District Court for the Western District of Texas, Austin Division, issued a Report and Recommendation granting Defendant's Motion to Dismiss in the case captioned SAMMY SHELTON, et al., v. McLANE COMPANY, INC., et al., No. 1:17-CV-888-SS-AWA (W.D. Tex.). The Plaintiffs filed this putative class action suit against McLane Company, Inc. and McLane Foodservice, Inc., for violations of the Fair Credit Reporting Act. The Employees allege that, when completing applications for employment with McLane, they each signed an authorization for McLane to obtain a pre-employment background check on them, which also allegedly included a release of liability. The Court will address McLane's argument that the pending claims are barred by the statute of limitations. Statute of Limitations The First Amended Complaint, the Employees contend: the Defendants routinely conduct background checks on all of its job applicants as part of a standard screening process. the Defendants also conduct background checks on existing employees from time-to-time. McLane argues that all of the plaintiffs' potential claims under the FCRA are barred by the FCRA's statute of limitations. A plaintiff asserting a claim under Section 1681b must bring suit not later than the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs. The evidence is that McLane only obtained background checks on each of the Employees prior to their being hired by the company. McLane Foodservice obtained any pre-hire background checks on Plaintiffs before their respective dates of employment listed above. The most recently hired of the named plaintiffs was hired in 2008. This means that even applying the longer five-year limitations period the latest any of the Employees could have brought suit for violations under Section 1681b(b)(2)(A) on the basis of background checks procured by McLane would have been in 2013. The suit was filed in 2017, and thus all of the Employees' claims are barred by the statute of limitations. The Magistrate recommends that the District Court grant the Defendant's Motion to Dismiss. A full-text copy of the District Court's July 16, 2018 Report and Recommendation is available at https://tinyurl.com/ybelj5zr from Leagle.com. Carnett Brewer, Duane Harris, Sammy Shelton & Thomas Cathey, Plaintiffs, represented by Aashish Y. Desai -- aashish@desai-law.com -- Desai Law Firm, P.C. McLane Company, Inc. & McLane Foodservice, Inc., Defendants, represented by Rod Fliegel -- rfliegel@littler.com -- Littler Mendelson, P.C. & Sherry L. Travers -- stravers@littler.com MDL 2493: Meloy Appeals Decision in TCPA MDL to 4th Cir. -------------------------------------------------------- Party-in-Interest Geneva Meloy filed an appeal from a court ruling in the multidistrict litigation entitled In re: MONITRONICS INTERNATIONAL, INC., TELEPHONE CONSUMER PROTECTION ACT LITIGATION, MDL No. 1:13-md-02493-JPB-JES, in the U.S. District Court for the Northern District of West Virginia at Clarksburg. The appellate case is captioned as Geneva Meloy v. Monitronics International, Inc., Case No. 18-1770, in the United States Court of Appeals for the Fourth Circuit. As previously reported in the Class Action Reporter, Judge Allyson Kay Duncan of the U.S. Court of Appeals for the Fourth Circuit affirmed the District Court's order denying the Plaintiffs' Rule 56(d) motion and granting UTC and Honeywell summary judgment. The Plaintiffs-Appellants sued UTC and Honeywell under the Telephone Consumer Protection Act ("TCPA"). Although the Plaintiffs did not allege that UTC and Honeywell directly violated the TCPA, they claimed that both companies were vicariously liable for illegal calls made by telemarketers promoting UTC and Honeywell products. On Dec. 19, 2013, the Multidistrict Litigation ("MDL") Panel consolidated seven class-action lawsuits alleging that ISI, VMS and other home-security retailers violated the TCPA by making illegal telemarketing calls and transferred the consolidated case to the Northern District of West Virginia. On Feb. 28, 2014, the Plaintiffs filed a Master Consolidated Complaint, which they twice amended. The briefing schedule in the Appellate Case is set as follows: -- Fee or application to proceed as indigent is due on August 10, 2018; -- Informal Opening Brief is due on August 6, 2018; and -- Informal response brief, if any, is due 14 days after informal opening brief is filed. Party-in-Interest-Appellant GENEVA MELOY, of Kent, Ohio, appears pro se.[BN] Defendant-Appellee MONITRONICS INTERNATIONAL, INC., a Texas corporation, is represented by: Courtney Blair Amelung, Esq. Toyja E. Kelley, Esq. TYDINGS & ROSENBERG, LLP 1 East Pratt Street Baltimore, MD 21202 Telephone: (410) 752-9700 Facsimile: (410) 727-5460 E-mail: camelung@tydingslaw.com tkelley@tydingslaw.com - and - Scott W. Atherton, Esq. Terence Michael Mullen, Esq. ATHERTON LAW GROUP, P.A. 224 Datura Street West Palm Beach, FL 33401 Telephone: (561) 293-2530 E-mail: Scott@AthertonLG.com Terence@AthertonLG.com - and - Albert M. Bower, Esq. Yesha Hoeppner, Esq. Eric L. Samore, Esq. SMITH AMUNDSEN, LLC 150 North Michigan Avenue Chicago, IL 60601 Telephone: (312) 894 3210 E-mail: ABower@salawus.com Yhoeppner@salawus.com esamore@salawus.com - and - Margaret Carlson, Esq. CULP & DYER, LLP 1990 Wittington Place Farmers Branch, TX 75234 Telephone: (972) 277-3612 E-mail: pcarlson@cdhllp.com - and - Benjamin Dyer, Esq. CULP & DYER, LLP 222 East Mckinney Street Denton, TX 76201 Telephone: (940) 484-2236 E-mail: bdyer@cdhllp.com - and - John G. Farnan, Esq. Monica L. Frantz, Esq. WESTON HURD LLP 1301 East Ninth Street Cleveland, OH 44114-1862 Telephone: (216) 241-6602 E-mail: jfarnan@westonhurd.com mfrantz@westonhurd.com - and - John Goldmark, Esq. Kenneth E. Payson, Esq. Ashley Lauren Watkins, Esq. DAVIS WRIGHT TREMAINE LLP 1201 3rd Avenue Seattle, WA 98101 Telephone: (206) 757-8068 E-mail: johngoldmark@dwt.com kenpayson@dwt.com ashleywatkins@dwt.com - and - Jeffrey Anthony Grove, Esq. Jeffrey Alan Holmstrand, Esq. GROVE, HOLMSTRAND & DELK, PLLC 44 1/2 15th Street Wheeling, WV 26003 Telephone: (304) 905-1961 Facsimile: (304) 230-6610 E-mail: jholmstrand@fsblaw.com - and - Richard Benjamin Harper, Esq. BAKER BOTTS LLP 30 Rockefeller Plaza New York, NY 10112 Telephone: (212) 408-2675 E-mail: richard.harper@bakerbotts.com - and - Hubert Kim, Esq. Frederick W. Kosmo, Jr., Esq. Meryl Colle Maneker, Esq. WILSON TURNER KOSMO LLP 550 West C Street San Diego, CA 92101-3532 Telephone: (619) 236-9600 E-mail: hkim@wilsonturnerkosmo.com fkosmo@wilsonturnerkosmo.com mmaneker@wilsonturnerkosmo.com - and - James Allen Maines, Esq. HOLLAND & KNIGHT, LLC 1180 West Peachtree Street Atlanta, GA 30309-3400 Telephone: (404) 817-8500 E-mail: allen.maines@hklaw.com - and - Diane Babb Maughan, Esq. Crawford S. McGivaren, Jr., Esq. CABANISS, JOHNSTON, GARDNER, DUMAS & O'NEAL LLP 1900 1st National Southern Natural Bldg Birmingham, AL 35203-0000 Telephone: (205) 716-5241 E-mail: dbm@cabaniss.com csm@cabaniss.com Defendants-Appellees VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS, d/b/a Alliance Security, d/b/a Alliance Home Protection, a California corporation; ALLIANCE SECURITY, INC., d/b/a AH Security, Inc, f/k/a Versatile Marketing Solutions, Inc., d/b/a VMS Alarms; JASJIT GOTRA, a/k/a Jay Gotra, individually and as an Officer of Versatile Marketing Solutions, Inc.; and ALLIANCE SECURITY LLC, a Delaware limited liability company, are represented by: Niall Anthony Paul, Esq. John R. Teare, Jr., Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3874 E-mail: npaul@spilmanlaw.com jteare@spilmanlaw.com - and - Christina Suzanne Terek, Esq. SPILMAN, THOMAS & BATTLE, PLLC 1233 Main Street P. O. Box 831 Wheeling, WV 26003-0000 Telephone: (304) 230-6950 Facsimile: (304) 230-6951 E-mail: cterek@spilmanlaw.com - and - Sumner D. Widdoes, Esq. GIBBS, GIDEN, LOCHER, TURNER & SENET, LLP 1880 Century Park East Los Angeles, CA 90067-3039 Telephone: (310) 552-3400 E-mail: swiddoes@gibbsgiden.com Defendant-Appellee ALLIANCE SECURITY, INC., d/b/a AH Security, Inc., f/k/a Versatile Marketing Solutions, Inc., d/b/a VMS Alarms, is represented by: Debra Lee Allen, Esq. SPILMAN, THOMAS & BATTLE, PLLC P. O. Box 615 Morgantown, WV 26507-0615 Telephone: (304) 291-7920 E-mail: dhovatter@spilmanlaw.com - and - Chad Gottlieb, Esq. DARROWEVERETT LLP 450 NE 5th Street Fort Lauderdale, FL 33301 Telephone: (954) 278-8355 E-mail: cgottlieb@darroweverett.com - and - Kevin S. Peterson, Esq. PETERSON PALETTA BALICE PLC 5510 Cascade Road, SE Grand Rapids, MI 49546 Telephone: (616) 957-3540 E-mail: kevin@petersandpeterspa.com Defendants-Appellees ALLIANCE SECURITY, INC., d/b/a AH Security, Inc., f/k/a Versatile Marketing Solutions, Inc., d/b/a VMS Alarms; and JASJIT GOTRA, a/k/a Jay Gotra, individually and as an Officer of Versatile Marketing Solutions, Inc., are represented by: Shaun E. Swiger, Esq. FOLEY & MANSFIELD PLLP 300 South Grand Avenue Los Angeles, CA 90017 Telephone: (213) 283-2100 E-mail: sswiger@foleymansfield.com Defendants-Appellees KEVIN KLINK and JAYSON WALLER are represented by: Harry F. Bell, Jr., Esq. BELL LAW FIRM P. O. Box 1723 Charleston, WV 25326-1723 Telephone: (304) 345-1700 Facsimile: (304) 345-1715 E-mail: hfbell@belllaw.com Defendant-Appellee ALLIANCE SECURITY is represented by: James V. Coutts, Esq. HARRIS, MARTIN, JONES, P.A. 49 Music Square, West Nashville, TN 37203 Telephone: (615) 321-5400 E-mail: jcoutts6110@gmail.com - and - Louise Marcus, Esq. MARCUS LAW OFFICE 33 College Hill Road Warwick, RI 02886 Telephone: (401) 331-3300 E-mail: lmarcus@verizon.net - and - John R. Teare, Jr., Esq. SPILMAN, THOMAS & BATTLE, PLLC Spilman Center 300 Kanawha Boulevard, East P. O. Box 273 Charleston, WV 25321-0273 Telephone: (304) 340-3800 E-mail: jteare@spilmanlaw.com MDL 2665: Court Unseals Class Certification Pleadings ----------------------------------------------------- The United States District Court, District of Columbia, granted in part and denied in part Plaintiffs' Motion to Unseal Opening Class Certification Papers in the case captioned IN RE: McCORMICK & COMPANY, INC., PEPPER PRODUCTS MARKETING AND SALES PRACTICES LITIGATION. This Document Relates to: ALL CONSUMER CASES, MDL Docket No. 2665, Misc. No. 15-1825 (ESH)(D.D.C.). The Plaintiffs, who are purchasers of defendant McCormick's black pepper, allege in their complaint that the defendants had a statutory duty to refrain from unfair or deceptive acts or practices in the promotion and sale of McCormick black pepper or store-branded black pepper and that they violated this duty by selling black pepper in non-transparent containers containing non-functional slack-fill. The Plaintiffs moved to certify three multistate classes under the consumer protection and unjust enrichment laws of more than thirty states and the District of Columbia, claiming that McCormick and Wal-Mart violated these laws when they knowingly sold black pepper in non-transparent containers containing non-functional slack fill, intending to minimize or eliminate consumers' ability to notice the reduced quantity of pepper by maintaining the same price and container size. The Plaintiffs filed a Motion to Unseal Opening Class Certification Papers, arguing that the defendants' confidentiality designations as to materials produced during discovery are overly broad, and since defendants have failed to justify these designations, all documents should be unsealed and un-redacted in full. Under United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), courts consider six factors that may act to overcome the presumption in favor of public access to judicial proceedings: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. The plaintiffs moved to unseal the class certification pleadings either through their motion to unseal or by opposing defendants' motions to seal. The Plaintiffs also oppose Wal-Mart's motion to file under seal its opposition to the motion to unseal. The Hubbard factors weigh heavily in favor of unsealing each of these pleadings. The Defendants make only conclusory arguments about the proprietary nature of the redacted information in the class certification pleadings. To carry their burden under Hubbard, defendants must specifically identify the commercially sensitive information contained in the redactions and explain why its disclosure would harm their competitive standing. Here, the defendants fail to specifically identify commercially sensitive information, but instead, they make overbroad requests to maintain information in confidence that is relevant to the Court's decision-making, and which should therefore be presumptively accessible to the public. Based on the record before it, the Court concludes that the Hubbard factors favor disclosure of the class certification pleadings. The first factor is the need for public access to the documents at issue. Pleadings are the clearest expression of relevant evidence and argumentation on any given disputed issue and necessarily influence a Court's decision. The second factor considers prior public access. Some redacted information is already available through the Court's prior opinion. For example, the motion for class certification quotes extensively from previously disclosed language. The Defendants make no effort to distinguish what is publicly available from what is not. So, factors one and two weigh in favor of disclosure. By virtue of defendants' opposition to the motion to unseal and various motions to seal, the third factor, which considers the identity of a party objecting to disclosure, weighs in favor of closure. Hubbard's fourth factor considers the strength of the property and privacy interests asserted in the class certification papers, and points in favor of disclosure in large part because neither defendant gives any reason why particular redactions in the pleadings are necessary. The fifth considers whether disclosure of the documents will lead to prejudice in future litigation to the party seeking the seal. Wal-Mart does not address this factor and McCormick argues that it favors McCormick "because there is no prejudice to Plaintiffs." The correct question is whether the defendants will be prejudiced in future litigation if the class certification pleadings are unsealed. Nothing suggests the defendants will be prejudiced. The sixth factor looks to the purposes for which the documents were introduced during the judicial proceedings. Though documents obtained through discovery are afforded a stronger presumption of privacy, briefing relating to a potentially dispositive motion that is intended to play a crucial role in a court's analysis should be accessible to the public unless an overriding privacy interest controls. Accordingly, the fourth, fifth, and sixth factors weigh in favor of disclosing the parties' class certification briefing in full. Given the weight of the Hubbard factors and the defendants' failure to identify any specific information in the pleadings that might cause them competitive harm, the Court will unseal the class certification pleadings. A full-text copy of the District Court's June 11, 2018 Memorandum Opinion is available https://tinyurl.com/y7t3lwad from Leagle.com. RHONDA DUPLER, on behalf of herself and all others similarly situated, Plaintiff, represented by Andrew N. Friedman -- afriedman@cohenmilstein.com -- COHEN MILSTEIN SELLERS & TOLL PLLC, Elizabeth A. Fegan -- beth@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO, LLP & Jeffrey I. Carton -- jcarton@denleacarton.com -- DENLEA & CARTON LLP. HOLLY MARSH, Plaintiff, represented by Michael T. Fraser -- mfraser@saxongilmore.com -- FRASER LAW FIRM, P.C. & Elizabeth A. Fegan -- beth@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO, LLP. MCCORMICK & COMPANY, INC., Defendant, represented by David H. Bamberger -- david.bamberger@dlapiper.com -- DLA PIPER LLP & Edward S. Scheideman -- edward.scheideman@dlapiper.com -- DLA PIPER LLP. WAL-MART STORES, INC., Defendant, represented by Andrew G. Klevorn -- andrew.klevorn@kattenlaw.com -- KATTEN MUCHIN ROSENMAN LLP. PUBLIX SUPER MARKETS, INC., Defendant, represented by David H. Bamberger , DLA PIPER LLP. MDL 2785: Court Compels Humana to Comply with Subpoena ------------------------------------------------------ The United States District Court for the District of Kansas granting Class Plaintiffs' Amended Motion to Compel Compliance with Subpoena Directed to Non-Party Humana, Inc, in the case captioned IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation. This Document Applies to All Cases, MDL No. 2785, Case No. 17-md-2785-DDC-TJJ (D. Kan.). The Plaintiffs served a Rule 45 subpoena on Humana. Under Rule 45(d)(2)(b), Humana's deadline for objections was 14 days after service of the subpoena. Counsel for Humana contacted the Plaintiffs' counsel to request an extension of the response and production deadlines. Plaintiffs agreed to an extension as long as Humana committed to begin producing responsive materials. Humana served its objections and counsel conferred five days later. The Plaintiffs assert this Court has jurisdiction to decide this motion, while Humana contends the motion should be heard in the Western District of Kentucky, the district that includes the place for compliance. In issuing a subpoena, a party must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Non-parties responding to Rule 45 subpoenas generally receive heightened protection from discovery abuses. Federal Rule of Civil Procedure 45 governs both motions to compel compliance with and motions to quash a subpoena served on a non-party. Under Rule 45(d)(2)(B), if the entity commanded to produce documents serves written objections to the subpoena, the serving party may seek compliance by filing a motion to compel production of the documents. If the non-party wishes to challenge the subpoena, it does so by filing a motion to quash. The Plaintiffs assert that as the MDL transferee court, this Court has jurisdiction to rule on their motion to compel. Humana disagrees and although it does not say so directly, hints that the authorities Plaintiffs cite are no longer good law after the 2013 amendment to Rule 45. The basis for ruling that an MDL transferee court has authority to rule on a motion to compel in this situation (where a Rule 45 subpoena is issued by the MDL court but compliance is sought in another district) is not Rule 45 or Rule 37. Instead, courts find authority in 28 U.S.C. Section 1407, the statute authorizing the MDL Panel to transfer civil actions involving one or more common questions of fact for coordinated pre-trial proceedings. Section 1407(b) expressly empowers an MDL court to exercise the powers of a district judge in any district for the purpose of conducting pre-trial depositions. The statute's remedial purpose of eliminating the potential for conflicting contemporaneous pretrial rulings would be frustrated if the MDL court could not entertain motions to compel. In this case, the Class Plaintiffs have served subpoenas on numerous non-parties, each containing the same requests. To enable this Court to fully exercise its power under Section 1407, it is necessary to assume enforcement powers in relation to these subpoenas. Doing so is also consistent with the transfer order in this case wherein the MDL panel noted that centralization will eliminate duplicative discovery and prevent inconsistent pre-trial rulings. As the Court presiding over the MDL, this Court has authority to decide the motion to compel. The Complaint's allegations make relevant a number of topics for discovery, including the epinephrine auto-injector (EAI) market, EAI device coverage and formulary placement or exclusion, usage, claims, consumer costs, demand and competitive conditions, and EAI-related payments and costs along the distribution and pharmaceutical supply chain. As Plaintiffs describe it, relevant discovery subjects also include documents and information related to EAI manufacturer marketing, educational and presentation materials, concerning their and competitor EAI devices as it is alleged that Mylan engaged in a massive misinformation campaign concerning EpiPen and competitor EAIs directed at the healthcare industry and consumers. Given the Plaintiffs' allegations, the Court finds relevant the categories of requests included in the Plaintiffs' subpoena. As the Plaintiffs describe their requests, they include: (i) rebate and formulary information, including agreements, communications and other deliberative materials relating to those agreements; and (ii) documents concerning consideration paid or received related to the marketing, distribution, or sale of any EAI Drug Device. A full-text copy of the District Court's June 11, 2018 Memorandum and Order is available https://tinyurl.com/ybvjrrxx from Leagle.com. All Plaintiffs, In Re, represented by Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback, pro hac vice, Paul J. Geller -- Rgeller@rgrdlaw.com -- Robins Geller Rudman & Dowd LLP, pro hac vice, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns Charest LLP, pro hac vice. Mylan N.V., Defendant, represented by Adam K. Levin -- adam.levin@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com -- Lathrop Gage LLP, Brian R. Richichi -- brian.richichi@hoganlovells.com -- Hogan Lovells US LLP, Carolyn Anne DeLone -- carrie.delone@hoganlovells.com -- Hogan Lovells US LLP, Chad E. Blomberg -- cblomberg@lathropgage.com -- Lathrop Gage, LLP. MID PENN: Board of Directors Faces Class Action Over Merger ----------------------------------------------------------- Shelby White, writing for Central Penn Business Journal, reports that members of Mid Penn Bancorp, Inc. and First Priority Financial Corp.'s boards of directors are facing a class-action lawsuit over a proposed merger between the two banks. The banks announced in January that they planned to merge, with First Priority being folded into Mid Penn. The lawsuit was filed by First Priority shareholder Paul Parshall in the Court of Common Pleas of Chester County, according to a Securities and Exchange Commission filing made by Mid Penn. The suit states class claims on behalf of all First Priority shareholders. Mr. Parshall could not be reached for comment. In a lawsuit Mr. Parshall filed last year against Royal Bancshares of Pennsylvania Inc., he was represented by attorneys at Delaware firm Rigrodsky & Long P.A., which has pursued other merger-related lawsuits. The merging banks dismissed the suit. "Mid Penn and First Priority believe that the lawsuit is without merit as there are substantial legal and factual defenses to the claims asserted and intend to vigorously defend the lawsuit," Mid Penn said in its Securities and Exchange Commission filing. Representatives from Mid Penn declined to comment further. First Priority officials were not immediately available for comment. The suit comes as mergers, often a target for legal action, are attracting fewer lawsuits. The rate of mergers-and-acquisitions litigation has declined in recent years, according to a recent Cornerstone Research study. The average number of lawsuits per deal in both 2017 and 2016 was 2.8 -- the lowest average in 10 years, the study said. According to Mid Penn's SEC filing, Mr. Parshall's suit alleges that First Priority directors breached their fiduciary duty through misstatements and omissions in a joint proxy statement Mid Penn and First Priority filed June 19 with the Securities and Exchange Commission. It also claims that the merger consideration is "inadequate," meaning that the agreement is unfair. Additionally, the suit contends that Mid Penn aided and abetted the First Priority directors' alleged breaches of fiduciary duty. The lawsuit seeks to stop the merger, or if it is completed, rescission or revocation of the merger, rescissory damages, unspecified damages and costs of the lawsuit, including attorneys' and experts' fees. Rescissory damages are awarded when courts find that a merger is completed at an unfair price. They are also a possible remedy for a breach of the duty of loyalty -- including cases where directors of a corporation have put their personal interests above those of the stockholders'. The damages are determined by the fair value of the plaintiffs' stocks minus any amount already received in the merger, according to the Washington University Law Review. Headquartered in Millersburg, Mid Penn has assets of approximately $1.4 billion and 29 branches in Cumberland, Dauphin, Fayette, Lancaster, Luzerne, Northumberland, Schuylkill and Westmoreland counties. According to its most recent earnings report, Mid Penn had net income of $1 million in the first quarter of 2018, down from $2 million in its first quarter of 2017. Results included nearly $1.7 million in expenses stemming from the bank's acquisition of The Scottdale Bank & Trust Co., which closed in January, and the pending merger with First Priority. First Priority is headquartered in Malvern and has approximately $615 million in assets. The bank has seven locations in Chester, Berks, Montgomery and Bucks counties. According to its most recent earnings report, First Priority had net income of $762,000 in the first quarter of 2018, down from $782,000 in the first quarter of 2017. [GN] MIDLAND FUNDING: 8th Cir. Partly Reverses Dismissal of FDCPA Suit ----------------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, reversed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned David Coyne, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Midland Funding LLC; Midland Credit Management, Inc., Defendants, Messerli & Kramer P.A., Defendant-Appellee, No. 17-2826, (8th Cir.). Coyne filed a putative class action against Midland Funding and the two debt collectors under the Fair Debt Collection Practices Act, claiming they used a false, deceptive, or misleading representation or means, and an unfair or unconscionable means, in attempting to collect the credit-card debt when they told him, among other things, that he owed interest on the debt's principal balance. When Midland Funding and the debt collectors moved the district court to dismiss the amended complaint for failing to state a claim, the district court granted the motion and dismissed the action on the ground that Coyne failed to allege that any statement in the collection letters was not only false but materially so. The district court explained why some of the statements Coyne had contested did not violate the FDCPA, but it did not discuss whether he had pleaded a claim based on the charging and attempted collection of compound interest that state law did not allow. The Court reviews de novo a district court's dismissal of a complaint for failing to state a claim, accepting the factual allegations in the complaint as true and viewing them in the light most favorable to the plaintiff. Whether Coyne stated a FDCPA claim when he alleged that since the debt's principal balance included contractual interest and since compounded interest upon interest was not expressly authorized by the agreement creating the debt, the interest on the principal balance that Messerli's letter tried to collect, and said that he owed, was compound interest in violation of Minn. Stat. Section 334.01 It is undisputed that Minnesota law governs Coyne's alleged credit-card debt. Minn. Stat. Section 334.01(1) provides that in the computation of interest upon any instrument or agreement, interest shall not be compounded unless there is a contract to pay such interest. Messerli argues that it did not violate the FDCPA since the amount of interest stated in its letter to Coyne was contractually authorized. Since the amended complaint and the documents it necessarily embraces do not indicate the interest rates that apply to the debt, we have no occasion to consider Messerli's argument that a debt collector may try to collect compound interest which state law does not allow without materially violating the FDCPA so long as the total amount of interest sought does not exceed the maximum amount permitted under the debtor's contract. Messerli contends the district court held that requesting less interest than the amount owed does not materially violate the FDCPA, but that is simply not correct. Nothing in the district court's orders granting the motion to dismiss and denying Coyne leave to file a motion to reconsider supports Messerli's representation. At oral argument, Messerli further asserted that the district court had correctly noted that its letter to Coyne was not a collection letter, but Messerli errs again: The district court did not make that observation, and it was not even in a position at the pleading stage to do so since that observation would have conflicted not only with the allegations in the amended complaint, but also with the declaration printed on the letter's face that it is from a debt collector and is an attempt to collect a debt. The Court reverses the judgment of the district court only as to Coyne's claim against Messerli that it violated 15 U.S.C. Sections 1692e and 1692f when it attempted to collect, and represented he owed, compound interest on the debt in violation of Minnesota law. The Court remands the case for further proceedings on that claim. A full-text copy of the Eighth Circuit's July 16, 2018 Opinion is available at https://tinyurl.com/yanxcfym from Leagle.com. Russell S. Ponessa , for Defendant-Not Party. Derrick Neal Weber , for Defendant-Appellee. Margaret Ann Santos , for Defendant-Not Party. Anthony Patrick Chester , for Plaintiff-Appellant. Robert L. Hyde , for Plaintiff-Appellant. Joshua B. Swigart , for Plaintiff-Appellant. Seyed Abbas Kazerounian , for Plaintiff-Appellant. MIDLAND FUNDING: K. Smith's Suit Remanded to Ark. State Court ------------------------------------------------------------- Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Harrison Division, remanded the case, KANDIS K. SMITH, Plaintiff, v. MIDLAND FUNDING, LLC and MIDLAND CREDIT MANAGEMENT, INC., Defendants, Case No. 3:18-CV-03044 (W.D. Ark.), to the Circuit Court of Carroll County, Arkansas, for further disposition. The Defendants removed the instant matter to the Court from the Circuit Court of Carroll County, Arkansas, on April 19, 2018. The notice of removal stated that the basis for federal jurisdiction was complete diversity of citizenship, plus an amount in controversy exceeding $75,000. The Complaint filed in state court asserted a single cause of action for violations of the Arkansas Fair Debt Collection Practices Act, and requested statutory damages of up to $1,000 per Defendant (for a total of $2,000) and reasonable attorney's fees and costs. The Complaint did not disclose a claim for actual damages suffered by the Plaintiff as a result of the Defendants' allegedly deceptive acts in attempting to collect an old debt. Now pending before the Court are the Plaintiff's Motion to Remand and the Brief in Support. The Defendants have filed a collective Response in Opposition to remand. In the Motion, the Plaintiff asserts that amount in controversy is, at most, $2,000 in statutory damages, plus a reasonable amount of attorney's fees and costs. Although she brings her case in the form of a putative class action, the amount in controversy for purposes of establishing federal jurisdiction may only be measured as to her individual claims, and cannot be aggregated with the claims of any putative class members. Accordingly, the Plaintiff argues that it is implausible to assume, as the Defendants have, that the amount of attorney's fees attributable to her individual case will exceed $73,000 and meet the jurisdictional minimum. The Defendants respond, first, that the Motion to Remand is premature, and they ask for time to conduct jurisdictional discovery into the issue of the amount in controversy. The Court rejects this request because the amount of statutory damages demanded by the Plaintiff is a set, capped amount, and no amount of jurisdictional discovery will shed light on the issue of what a potential, reasonable attorney's fee will be as to Plaintiff's individual claim. Next, they contend that it is quite plausible that the Plaintiff will be awarded attorney's fees and costs in excess of $73,000 on her individual claim. In support of this argument, they cite the Court to an unreported case from the Middle District of Florida called Baez v. LTD Financial Services, L.P. In Baez, the district court certified a class consisting of 33,993 persons who alleged that the defendant collection company violated the federal Fair Debt Collection Practices Act. After a jury trial, class counsel on behalf of all class members petitioned the court for a collective attorney's fee of $186,450. As of yet, the court has deferred ruling on the petition for fees until after the appellate court has ruled on the merits. Not to be deterred, the Defendants in the case at bar argue that Baez and the instant case are so similar that this Court may find that the future award of fees in the case will, to a legal certainty, and notwithstanding Plaintiff's protestations to the contrary, exceed $73,000. Judge Brooks finds that the Defendants have failed to establish that the minimum amount in controversy has been met and that the Court should continue to exert subject matter jurisdiction in the case. Assuming without deciding that the minimum amount in controversy may be calculated by estimating the potential future attorney's fee that would be awarded at the end of the litigation, the Judge finds that a fee in excess of $73,000 is wildly disproportionate to the Plaintiff's claimed damages capped at $2,000, and is not supported by the outcome in Baez. The class attorneys in Baez made a request for fees for $186,450 on behalf of the entire class. The class in Baez exceeded 30,000 members. The Eighth Circuit has previously held that fees cannot be aggregated to meet the amount-in-controversy requirement and must be determined on a pro rata basis. Therefore, even if the Judge were to estimate a pro rata fee in the Baez case, based on the aggregate fee demand and the number of class members, there is no plausible way that the pro rata fee would approach $1,000, let alone $73,000. The Defendants have therefore failed to meet their burden of proof that the amount in controversy in this case exceeds $75,000. Accordingly, as it appears to a legal certainty that the claim at issue is for far less than the jurisdictional amount, Judge Brooks granted the Plaintiff's Motion to Remand, and directed the Clerk of Court to immediately remand the matter to the Circuit Court of Carroll County, Arkansas, for further disposition. The Judge declined the Defendants' alternative request to condition remand upon the Plaintiff and her counsel signing a binding stipulation as to the potential award of attorney's fees and costs. The Judge mooted the Motion to Certify Questions to the Arkansas Supreme Court in view of the Court's lack of jurisdiction over this case and decision to remand the matter to state court. He preserved the Defendants' Motion to Dismiss for the state court. A full-text copy of the Court's June 19, 2018 Opinion and Order is available at https://is.gd/7CNYoS from Leagle.com. Kandis K. Smith, on behalf of herself and others similarly situated, Plaintiff, represented by Corey D. McGaha -- cmcgaha@crowdermcgaha.com -- Crowder McGaha, LLP, Daniel Turner -- Dan@arnoldbatsonturner.com -- Arnold, Batson, Turner & Turner, P.A., Todd M. Turner -- todd@abtt.us -- Arnold, Batson, Turner & Turner, P.A. & William Thomas Crowder -- wcrowder@crowdermcgaha.com -- CROWDER MCGAHA LLP. Midland Funding, LLC & Midland Credit Management, Inc., Defendants, represented by Jason B. Tompkins -- jtompkins@balch.com -- Balch Bingham LLP & Michael N. Shannon -- mshannon@qgtlaw.com -- Quattlebaum, Grooms, Tull & Burrow PLLC. MONTANA: Court Enters Final Judgment in Prison Conditions Suit -------------------------------------------------------------- In the case, IN THE MATTER OF LITIGATION RELATING TO CONDITIONS OF CONFINEMENT AT MONTANA STATE PRISON. THIS DOCUMENT RELATES TO: Terry LANGFORD, et al., Plaintiffs, v. Gov. Steve BULLOCK, et al., Defendants, Case No. CV 93-46-H-JCL (D. Mont.), Magistrate Judge Jeremiah C. Lynch of the U.S. District Court for the Distirct of Montana, Helena Division, entered Judgment in accordance with the Class Action Settlement Agreement signed by the parties on Feb. 23, 2018, and gave final approval of the settlement reflected therein. On June 19, 2018, the parties filed their consent to the Magistrate Judge's authority over the lawsuit. Therefore, the Court's Findings and Recommendation entered June 18, 2018 is withdrawn. Further, based upon the parties' revised Class Action Settlement Agreement, the parties' Joint Motion for Final Approval of Revised Class Action Settlement, and the hearing conducted on June 8, 2018, the Magistrate Judge overruled the objections to the Class Action Settlement Agreement filed in the case. She entered Judgment in accordance with the Settlement Agreement signed by the parties on Feb. 23, 2018, and gave final approval of the settlement reflected therein. If necessary, the Magistrate Judge will appoint a Special Master pursuant to Fed. R. Civ. P. 53(a)(1)(B) to address unresolved fees and expense issues. A full-text copy of the Court's June 19, 2018 Order and Judgment is available at https://is.gd/9daS3Y from Leagle.com. Terry Langford, James E. Ball, James Peterschick, Jeff J. Delaphiano, Trueman LeRoy Conrad, Anthel LaVan Brown, Dan Mason & Rudy Meissner, on behalf of themselves and all others presently incarcerated or who will in the future be incarcerated at the Montana State Prison,, Plaintiffs, represented by Amy F. Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, pro hac vice, Eric G. Balaban, NATIONAL PRISON PROJECT & Alexander H. Rate -- alex@kugelmanlaw.com -- RATE LAW OFFICE. Marc Racicot, in his official capacity as Governor of the State of Montana,, Rick Day, in his official capacity as Director, Department of Corrections and Human Services, James "Mickey&qu Gamble, in his official capacity as the Administrator of the Corrections Division of the Montana Department of Corrections and Human Services,, Mike Mahoney, in his official capacity as Deputy Warden, Montana State Prison, & State of Montana, Department of Corrections, Defendants, represented by Colleen E. Ambrose, MONTANA DEPARTMENT OF CORRECTIONS. MORGANS HOTEL: Faces Luis Seirra Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against Morgans Hotel Group Co., LLC. The case is captioned as LUIS SIERRA, individually and on behalf of all others similarly situated, Plaintiff v. MORGANS HOTEL GROUP CO., LLC, Defendant, Case No. 1:18-cv-22800-FAM (S.D. Fla., July 12, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Federico A. Moreno. Morgans Hotel Group Co., LLC, an integrated lifestyle hospitality company, owns, develops, operates, and licenses boutique hotels. The company was founded in 1983 and is headquartered in New York, New York. As of November 30, 2016, Morgans Hotel Group Co. operates as a subsidiary of SBE Entertainment Group, LLC. [BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. JESSICA L KERR PA 200 SE 6th Street, Suite 504 Fort Lauderdale, FL 33301 Telephone: (954) 282-1858 Facsimile: (844) 786-3694 E-mail: service@advocacypa.com NESTLE: Court Dismisses Class Action Over Bottled Spring Water -------------------------------------------------------------- John Breslin, writing for Legal Newsline, reports that a lawsuit claiming Nestle bottled water produced and distributed as "100 percent spring water" is a fraud has been dismissed by a court because federal law preempts any action citing state statutes. The class action, filed in the U.S. District Court of Connecticut, claimed that the company named its product Poland Spring even though it contained "not one drop . . . from a water source that complies with the Food and Drug Administration definition of 'spring water,'" according to the complaint. But the action failed in the District of Connecticut because any state action is preempted by the federal Food, Drug and Cosmetics Act (FDCA), which gives the Federal Drug Administration sole power to take such a false advertising case, the court ruled May 17. The FDCA prohibits private actions for violations and under the Act, states have to use identical language if writing their own statutes. While the plaintiffs, initially 11 residents of the Northeast but joined by others, have been told they can amend and refile, it is a strategy that is unlikely to work, according to Lawrence Weinstein, an advertising law expert with the Proskauer Rose legal firm. Mr. Weinstein cautioned that this is a very narrow ruling that relates specifically to the regulations covering spring water. "Unless overturned it may spell the death knell for (private) lawsuits over spring water, but that is a minuscule number of cases," Mr. Weinstein told Legal Newsline. The attorney described preemption as not a favored defense in many cases, that it is "entirely fact-dependent, and by looking carefully at the facts and the statutory language of the applicable federal law." "But it is an Interesting reminder to practitioners that sometimes the doctrine of preemption is available," Weinstein said. District Judge Jeffrey Alker Meyer made it clear his ruling was not a judgment on the underlying claims. "Although I reject many of Nestle's arguments, I agree with Nestle that plaintiffs' claims are all preempted by federal law," he wrote in the order granting the motion to dismiss. Alexander Schmidt, a lawyer for the plaintiffs, revised the claims in a filing June 15. Under federal law, spring water must be sourced from underground with a "natural force causing the water to flow to the surface," the ruling states. [GN] NEW ZEALAND: Bella Vista Residents Sue Tauranga City Council ------------------------------------------------------------ Scott Yeoman, writing for nzherald.co.nz, reports that an Auckland lawyer who filed a class action on behalf of Bella Vista residents in Tauranga says the city council has been slower than expected to front up with an offer. Tauranga City Council was served with the legal proceedings late on June 1. Five days later, councillors unanimously voted in principle to buy the 21 Bella Vista Homes which were part of the failed subdivision at The Lakes. The council said on June 6 that it would look to begin negotiations with the homeowners to achieve full and final settlement. [GN] NHL: Ex-Players Won't Appeal Class Action Dismissal --------------------------------------------------- Rick Westhead, writing for TSN, reports that a lawyer for former players who have filed lawsuits against the National Hockey League said plaintiffs in the case would not appeal a judge's July 13 decision to deny the players' motion to proceed as a class action. It will now be up to players to pursue their own claims against the league, said Michael Cashman, a Minnesota lawyer for former NHL players including Joe Murphy. "There's no more hiding in the back room," Mr. Cashman said in an interview on July 24. "Players need to be aware that if they want to seek any relief they are going to have to file their own case." Mr. Cashman said the several dozen plaintiffs lawyers who have worked on the case support a request made by an attorney representing the family of deceased NHL player Steve Montador to proceed with their lawsuit against the league as soon as possible, using the case as a potential bellwether. "The Montadors have got a strong case, more so than someone who's saying I have symptoms and I don't know what I'm going to have," Mr. Cashman said. "Montador is a different situation and there's no reason why they should delay." Montador's family filed a lawsuit against the league in December 2015. Montador played for six NHL teams and died in February 2015 at the age of 35 of an undisclosed cause at his home in Mississauga, Ont. A post-mortem exam found that he was suffering from chronic traumatic encephalopathy, or CTE, a degenerative brain disease that's been linked to repeated brain trauma. Montador played 641 games with Calgary, Florida, Anaheim, Boston, Buffalo and Chicago and was involved in 69 NHL fights, according to his family's lawsuit. He suffered at least three concussions in six months in 2003, at least four in nine months in 2010 and at least four in a three-month period in 2012, the lawsuit alleges. The lawsuit also claims Montador suffered from significant memory issues, sleeping problems, chronic pain, a substance abuse problem, photosensitivity, mood and behavioural changes, anxiety and depression. A status hearing to decide what will happen next in the NHL lawsuit is expected to take place in the next few weeks. The NHL's legal issues related to concussions date back to at least November 2013, when a group of former players first filed a proposed class-action lawsuit against the NHL. The players argued that the league failed to keep them reasonably safe and did not provide them with important medical information about the long-term ramifications of brain injuries. If U.S. District Judge Susan Nelson had approved the case as a class action, all 5,000 retired NHL players, as well as some families of former players who have died, would have automatically become plaintiffs in the case. Now, with the class-action status denied, players will have to come forward individually to pursue their cases. It's possible that players will be required to file cases in the U.S. states where they now live, Mr. Cashman said. "Players also need to understand that there's a statute of limitations that may now be running," he said. "It works differently from state to state but generally plaintiffs have a limited period of time to file a lawsuit after they knew or ought to have known that they have a potential claim. When there's a class-action decision pending, that time tolling is put on hold. With this decision, it moves ahead." Mr. Cashman said that lawyers who begin individual lawsuits against NHL teams or the league itself would have access to information and material already obtained in connection with the proposed class-action lawsuit in Minnesota. "What's really important is that here's action by players who believe they have a case," Mr. Cashman said. While more than 4,000 former NFL players joined a class-action lawsuit against the NFL, fewer than 200 former NHL players joined the NHL concussion lawsuit. Mr. Cashman said he's still trying to understand why more former NHL players haven't been willing to join the lawsuit. Mr. Cashman said prospective clients have told him they're worried that they wouldn't be invited to alumni events if they joined the lawsuit against the NHL. "These guys are afraid," he said. "In football, players aren't in the NFL system until they are drafted by an NFL team after college. That's different in hockey where you have to develop skating and stickhandling skills and players are sent away at 14 to play junior hockey and they are totally indoctrinated, told [to] 'listen to your coach. Do whatever he says.' In the NFL, that doesn't happen." "Also it seems like in Canada, it's more like you take your lumps and do it yourself for better or worse. In the U.S., people exposed to more media, especially in the past 20 or 30 years and you've got rights for just about everything and people are trained to pursue them." An NHL spokesman did not respond to an email requesting comment. [GN] NUVASIVE INC: Class Settlement in B. Mauss's Suit Has Prelim OK --------------------------------------------------------------- The United States District Court for the Southern District of California granted Plaintiffs' Motion for Preliminarily Approval of Class Action Settlement in the case captioned BRAD MAUSS and DANIEL POPOV, on behalf of themselves and all others similarly situated, Plaintiffs, v. NUVASIVE, INC.; ALEXIS V. LUKIANOV; and MICHAEL J. LAMBERT, Defendants, Case No. 13cv2005 JM (JLB)(S.D. Cal.) The Court granted the Plaintiffs' motion for class certification, appointing Plaintiffs Brad Mauss and Daniel Popov as Class Representatives, appointing Lead Counsel Pomerantz as Class Counsel and Glancy Prongay & Murray LLP as Liaison Counsel, and certifying the following class: All persons other than the Defendants who purchased or otherwise acquired NuVasive securities between October 22, 2008 and July 30, 2013, inclusive, and who were damaged thereby. Excluded from the Class are any parties who are or have been the Defendants in this litigation, the present and former officers and directors of NuVasive and any subsidiary thereof, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any current or former Defendant has or had a controlling interest. The Court preliminarily approves the Settlement and the proposed Plan of Allocation as fair, reasonable and adequate, pending a final settlement and fairness hearing. The Court preliminarily finds that the proposed Settlement should be approved as: (i) the result of serious, extensive arm's-length and non-collusive negotiations; (ii) falling within a range of reasonableness warranting final approval; (iii) having no obvious deficiencies; (iv) not improperly granting preferential treatment to the Plaintiffs or segments of the Class; and (v) warranting notice of the proposed Settlement at the Settlement Hearing A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/y8375j27 from Leagle.com. Brad Mauss, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, represented by Adam G. Kurtz -- agkurtz@pomlaw.com -- Pomerantz LLP, pro hac vice, Emma Gilmore -- egilmore@pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Justin Solomon Nematzadeh -- jnematzadeh@pomlaw.com -- Pomerantz LLP, pro hac vice, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Louis Ludwig -- lcludwig@pomlaw.com -- Pomerantz LLP, pro hac vice, Michael M. Goldberg , Goldberg Law PC, Michele S. Carino -- mcarino@carinolaw.com -- Pomerantz LLP &Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice. Nuvasive, Inc. & Michael J. Lambert, Defendants, represented by Kellin Maurine Chatfield -- kellin.chatfield@dlapiper.com -- DLA Piper LLP, Robert W. Brownlie --robert.brownlie@dlapiper.com -- DLA Piper LLP & Noah A. Katsell -- noah.katsell@dlapiper.com -- DLA Piper LLP. Alexis V. Lukianov, Defendant, represented by Raymond Winters Stockstill -- beaustockstill@paulhastings.com -- Paul Hastings LLP. OAKHURST DAIRY: $5MM Settlement in Drivers' Suit Has Final Approval ------------------------------------------------------------------- In the case, CHRISTOPHER O'CONNOR, et al., Plaintiffs, v. OAKHURST DAIRY, et al., Defendants, Case No. 2:14-00192-NT (D. Me.), Judge Nancy Torresen of the U.S. District Court for the District of Maine granted (i) the final settlement of all claims in the matter, (i) the service award to the five Named Plaintiffs, and (iii) the requested attorneys' fees and costs. The case concerns claims by Oakhurst Route Sales Drivers who pursued their claims for unpaid wages, other damages, costs, and attorneys' fees, on their own behalf and on behalf of other Route Sales Drivers assigned to an Oakhurst location in Maine between May 5, 2008 and Aug. 29, 2012. In May 2014, the Plaintiffs filed suit against Oakhurst and Dairy Farmers of America, Inc. Summary judgment was granted for the Defendants on the Plaintiffs' state law claims based on the statutory interpretation of a Maine law exemption to overtime. That judgment was reversed on appeal, and the parties conducted substantial discovery including depositions of all the five Named Plaintiffs. The Plaintiffs filed a motion for class certification, and the Defendants filed a motion to decline supplemental jurisdiction. The parties mediated the Plaintiffs' claims and separately participated in a judicial settlement conference, and they agreed to settle their dispute in advance of trial. The total amount of the settlement in the case is $5 million (although the Defendants have agreed to pay the employer share of wage-related taxes for payments made to Settlement Class Members under the Settlement Agreement). According to the Plaintiffs' damages expert, the $5 million settlement represents more than 90% of the $5,452,686.93 in total alleged overtime damages for the 122 Settlement Class Members. If the settlement is approved, the Settlement Class Members will receive, on average, more than $26,000 each; more than 20 will receive greater than $50,000 each; and none will receive less than $100. The Class Counsel has proposed, and the Defendants do not object to, service payments to the five Named Plaintiffs in the following amounts: Chris O'Connor ($15,000); James Adam Cox ($12,000); Robert McNally ($10,000); Kevin O'Connor ($6,500); and Michael Fraser ($6,500). The Plaintiffs' counsel has requested one third of the $5 million settlement amount in attorneys' fees or $1,666,666.67, and $50,000 in expenses. In March 2018, Judge Torresen authorized the Plaintiffs to circulate notices of the proposed settlement to potential class members. On March 30, 2018, the Settlement Administrator sent notice of the proposed settlement to the 122 class members. No objections have been filed, and no class member has opted out of the settlement. No objections were voiced by any class member at the Final Fairness Hearing on June 13, 2018. Judge Torresen concludes that: (1) the settlement is fair, reasonable, and adequate; (2) that the attorney fees and expenses requested by the Class Counsel are reasonable; and (3) the service awards to the five Named Plaintiffs are warranted and reasonable. For these reasons, she approved the final settlement of all claims in the matter and the plan of distribution, including the service award to the five Named Plaintiffs. She also granted the motion for attorneys' fees and costs. She further granted the parties' motion to certify the Action as a class action for settlement purposes only. The Judge denied as moot any pending motions not resolved in the order. She further ordered that the parties will report to her on the distribution and any settlement funds remaining for cy pres distribution by Oct. 15, 2018. She dismissed with prejudice the case on the merits. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/gB7IH6 from Leagle.com. CHRISTOPHER OCONNOR, on behalf of himself and all others similarly situated, KEVIN OCONNOR, on behalf of himself and all others similarly situated, JAMES ADAM COX, on behalf of himself and all others similarly situated, MICHAEL FRASER, on behalf of himself and all others similarly situated & ROBERT MCNALLY, on behalf of himself and all others similarly situated, Plaintiffs, represented by CAROL GARVAN -- cgarvan@johnsonwebbert.com -- JOHNSON WEBBERT & YOUNG LLP, JEFFREY NEIL YOUNG -- jyoung@johnsonwebbert.com -- JOHNSON WEBBERT & YOUNG LLP & DAVID G. WEBBERT -- dwebbert@johnsonwebbert.com -- JOHNSON WEBBERT & YOUNG LLP. OAKHURST DAIRY, Defendant, represented by JENNIFER K. OLDVADER -- jennifer.oldvader@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, pro hac vice, PATRICK F. HULLA -- patrick.hulla@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, pro hac vice, DANIELLE Y. VANDERZANDEN -- dani.vanderzanden@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., DAVID L. SCHENBERG -- david.schenberg@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. & FREDERICK B. FINBERG -- rfinberg@thebennettlawfirm.com -- THE BENNETT LAW FIRM. DAIRY FARMERS OF AMERICA INC, Defendant, represented by PATRICK F. HULLA, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, pro hac vice, DANIELLE Y. VANDERZANDEN, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., DAVID L. SCHENBERG, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., FREDERICK B. FINBERG, THE BENNETT LAW FIRM & JENNIFER K. OLDVADER -- jennifer.oldvader@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC. OHIO STATE UNIVERSITY: Sued over Sports Team Doctor's Conduct ------------------------------------------------------------- John Doe 1, John Doe 2, John Doe 3, John Doe 4, individually and on behalf of all others similarly situated, Plaintiffs v. The Ohio State University, Defendant, Case No. 2:18-cv-00692-MHW-EPD (S.D. Ohio, July 16, 2018) alleges that the Defendant failed to take appropriate action against the misconduct of one of its professors despite being repeatedly informed. According to the complaint, the Plaintiffs were sexually assaulted, molested, and harassed by Dr. Richard Strauss, the sports team doctor and assistant professor of the Defendant. As the complaints against Dr. Strauss mounted, the Defendant held hearing on the spring of 1997. However, the Defendant took no legal or disciplinary action against Dr. Strauss after the hearing. Dr. Strauss quietly retired from his position after the hearing. The Ohio State University is an educational institution that offers undergraduate, graduate, and research programs in the fields of business, social sciences, law, medicine, and public affairs. The Ohio State University was formerly known as Ohio Agricultural And Mechanical College and changed its name to The Ohio State University in January, 1878. The Ohio State University was founded in 1870 and is based in Columbus, Ohio. [BN] The Plaintiff is represented by: Simina Vourlis, Esq. THE LAW OFFICE OF SIMINA VOURLIS 856 Pullman Way Columbus, OH 43212 Telephone: (614) 487-5900 Facsimile: (614) 487-5901 fax E-mail: svourlis@vourlislaw.com - and - Rex A. Sharp, Esq. Ryan C. Hudson, Esq. Scott B. Goodger, Esq. Larkin Walsh, Esq. REX A. SHARP, P.A. 5301 W. 75 th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 fax E-mail: rsharp@midwest-law.com rhudson@midwest-law.com sgoodger@midwest-law.com lwalsh@midwest-law.com - and - Robert Allard, Esq. CORSIGLIA, MCMAHON AND ALLARD, LLP 96 North Third Street, Suite 620 San Jose, CA 95112 Telephone: (408) 289-1417 Facsimile: (408) 289-8127 fax E-mail: rallard@cmalaw.net - and - Jonathan Little, Esq. SAEED AND LITTLE, LLP 1433 N. Meridian St. Indianapolis, IN 46202 Telephone: 317-721-9214 E-mail: jon@sllawfirm.com - and - Stephen Estey, Esq. ESTEY & BOMBERGER LLP 2869 India Street San Diego, CA 92103 Telephone: 619-295-0035 Facsimile: 619-295-0172 fax E-mail: steve@estey-bomberger.com OHIO STATE: Conducts Investigation Amid Sex Abuse Class Action -------------------------------------------------------------- Juliet Macur, writing for The New York Times, reports that investigators working on behalf of Ohio State University are digging through decades of records to piece together what might have happened decades ago, when Dr. Richard H. Strauss was a team doctor and, according to recent accounts, engaged in some form of sexual misconduct with more than 100 former students. That misconduct occurred from 1979 to 1997, those former students have said. But Ohio State's sex abuse crisis and its apparent failure to provide abused athletes with an adequate support system may have extended to more-recent years. Eszter Pryor, a former diver who trained with the Ohio State University Diving Club as a teenager, discussed in an interview on July 23 an abusive relationship that she had in 2014, when she was 16, with a 28-year-old diving coach at the university, where the diving club trained. She said she felt stuck in the relationship because there was no athlete advocate she could call and no way to report the abuse without repercussions. Ms. Pryor, 21, filed a federal class-action lawsuit in which she claims that the assistant coach, Will Bohonyi, forced her to have sex with him starting in 2014. She is suing Mr. Bohonyi, U.S.A. Diving and the Ohio State University Diving Club over the sexual abuse she said she endured. A criminal investigation is also continuing. "Everybody liked him and so I thought what he was doing was just normal," Ms. Pryor said on July 23 in her first public interview. "I didn't think he was being serious at first, but then I didn't know how to stop him." A spokesman for Ohio State University noted in an email that the university had put Mr. Bohonyi on administrative leave on the same day it learned of the accusations in August 2014 and then immediately opened an investigation. Later that month, the university notified county children services, the Ohio State University police and U.S.A. Diving. "The university does not tolerate sexual misconduct of any kind," the spokesman said. Mr. Bohonyi and U.S.A. Diving did not immediately respond to requests for comment. Ms. Pryor's case is yet another story to emerge amid a litany of recent sexual abuse scandals involving universities and the apparent mismanagement of abuse accusations. Those cases include Dr. Larry Nassar's molestation of more than 200 girls and women while practicing at Michigan State, and recent accusations at the University of Southern California that a longtime gynecologist at the university's student health center, Dr. George Tyndall, sexually abused hundreds of patients for decades despite many warnings of his inappropriate behavior. In the cases at Michigan State and at U.S.C., as well as in the case of Dr. Strauss at Ohio State, officials appeared to have received complaints about sexual abuse long before they decided to take action. Congress has been investigating just what went wrong in the Nassar case. On July 24 it will hold yet another hearing on how to prevent sexual abuse in amateur sports, with Michigan State's interim president, John Engler, as one witness. On the eve of that hearing, Ms. Pryor said that while lawmakers and officials with the public universities might be eager to talk about how they can protect future athletes from abuse, "if they continue to hide the problem and protect themselves from bad publicity, they are just as bad as the perpetrator." Lawyers representing plaintiffs in these cases say they believe there will be more victims speaking out in the coming months about their experiences at other universities. "If you look at this dynamic of these cases, it's like what happened in the Catholic Church," said John C. Manly, a lawyer who represents more than 150 plaintiffs in each of the Nassar and Tyndall cases. "The church abuse stories started with a trickle, but what really broke it open was the abuse in Boston. I think the Larry Nassar case is academia's and sports' Boston Archdiocese. So, I hope I'm wrong, but I think this is just the beginning." Audry Nafziger, a sex crimes prosecutor in the district attorney's office of Ventura County, Calif., has spent years of her career -- including more than 100 cases, she estimated --trying to persuade witnesses in sex crimes cases to testify in court. She never expected to be the victim herself, however. Ms. Nafziger was a law student at U.S.C. in the early 1990s when she saw Dr. Tyndall at the student health center. He gave her an incorrect diagnosis of genital warts, groped her, took photos of her vagina and spoke of his sexual conquests, Ms. Nafziger said in an interview on July 21. She was so disturbed by the experience that for all these years she kept her medical charts from her two visits with him. Yet she didn't come forward with accusations at the time, she said, both out of embarrassment and fear of losing her spot in law school for "rocking the boat." When she saw Dr. Tyndall on the news, she realized that she, too, had been abused by him. "Predators hide in these large institutions because it's a perfect place for them," she said, adding that these institutions should institute safeguards and carefully examine each allegation. The institutions should also have enough people involved, she said, so that one person can't hide the abuse. Ms. Pryor didn't know who to turn to for help when Mr. Bohonyi began paying special attention to her in 2014. He began sending her text messages, including one that said, "I'm interested in a girl whose name begins with the letter 'e.'" She said he subsequently sent her a text message with a photo of his genitals and asked her to reciprocate, which she did. She said she felt forced to do what he asked because he was in a position of authority and had power over her diving career. She competed in the trials for the United States Olympic team when she was 13. She worried that a criticism of a coach would derail her Olympic goals. Those messages from Mr. Bohonyi turned into one-on-one meetings, as well as oral and vaginal sex in his car on the Ohio State campus, Ms. Pryor said. The first time they had sex, she was 16, she said. He was 28. After weeks of abuse, a teammate of Ms. Pryor's found out about the relationship after seeing photos of the two of them on her phone. Eventually, Mr. Bohonyi's fellow coaches found out. Ms. Pryor told her parents about it, she said, which is how Ohio State eventually was notified. Mr. Bohonyi was fired on August 29, 2014, about two weeks after Ohio State began its investigation. U.S.A. Diving was notified but did not place Mr. Bohonyi on its public banned coaches list until early 2015. He was the first person on the list, Ms. Pryor said, because the list didn't exist beforehand. She said she decided to contact law enforcement herself this January because she learned that Mr. Bohonyi was still coaching. By then, she had dropped out of Penn State University, where she had been on the diving team. She said she developed an eating disorder and refused treatment, and left school because of it. Ms. Nafziger, the California prosecutor, said Congress could go as far as withdrawing funding from universities that fail to adequately investigate accusations of sexual abuse. For so many years, U.S.C. failed to stop Dr. Tyndall when it easily could have, she said, and it could have used more incentive to do the right thing. "Women complained in writing before he put his hands all over me," she said, referring to Dr. Tyndall's abuse. "You have to have an audience that's willing to believe and see what's happening." Whatever the universities do to address this abuse problem, Ms. Nafziger said, "they're going to have to change the way they do business." [GN] ORNUA FOODS: Myers-Taylor Files Class Suit Over False Advertising ----------------------------------------------------------------- Dyami Myers-Taylor, an individual on behalf of himself and all others similarly situated and the general public v. Ornua Foods North America, Inc.; Ornua Co-operative Limited; and DOES 1 through 25, inclusive, Case No. 3:18-cv-01538-H-MDD (S.D. Cal., July 6, 2018), is brought on behalf of consumers, who were allegedly misled into purchasing Kerrygold Products due to false and misleading advertising. The Kerrygold Products include: Salted Butter, Unsalted Butter, Naturally Softer Pure Irish Butter, Garlic & Herb Butter, Reduced Fat Irish Butter, Irish Butter With Canola Oil, which are manufactured, packaged, marketed, advertised, distributed and sold by the Defendants through supermarket chains and retail stores in California and throughout the United States. Mr. Myers-Taylor contends that he and the Proposed Class would not have purchased or paid a price premium for the Kerrygold Products had they known that the representations, "Milk From Grass-fed Cows", "Made with milk from grass-fed cows not treated with rBST or other growth hormones", "All Natural", and "100% Pure and Natural" were false, deceptive and/or misleading. Ornua Foods North America, Inc., is an New York corporation with its headquarters in Evanston, Illinois. Ornua Co-operative Limited is an Irish corporation with its headquarters in Dublin, Ireland. The true names and capacities of the Doe Defendants are unknown to the Plaintiff at this time.[BN] The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 600 W Broadway, Suite 700 San Diego, CA 92101-3370 Telephone: (619) 272-7014 Facsimile: (619) 330-1819 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq. LAW OFFICES OF ROSS CORNELL APC 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Telephone: (562) 612-1708 Facsimile: (562) 394-9556 E-mail: ross.law@me.com PA FIRE RECOVERY: LaMonaca Suit Asserts FDCPA Violation ------------------------------------------------------- VINCENT A. LAMONACA, on behalf of himself and all others similarly situated v. PA FIRE RECOVERY SERVICE, Case No. 1:18-cv-11419 (D.N.J., July 6, 2018), alleges that the Defendant's debt collection practices violate the Fair Debt Collection Practices Act. PA Fire Recovery Service is located in Macungie, Pennsylvania. Recovery regularly engages in the collection of consumer debt through the use of the mails.[BN] The Plaintiff is represented by: James A. Francis, Esq. David A. Searles, Esq. FRANCIS & MAILMAN, P.C. Land Title Building, Suite 1902 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735-8600 E-mail: jfrancis@consumerlawfirm.com dsearles@consumerlawfirm.com PAREXEL INT'L: Subpoena on Western in Wage Suit Partly Quashed -------------------------------------------------------------- In the case, SCHOULEE CONES, an individual on behalf of herself and all others similarly situated, and DEXTER PASIS, and individual on behalf of himself and all others similarly situated, Plaintiffs, v. PAREXEL INTERNATIONAL CORPORATION and PAREXEL INTERNATIONAL, LLC, Defendants, Case No. 16cv3084 L (BGS) (S.D. Cal.), Magistrate Judge Bernard G. Skomal of the U.S. District Court for the Southern District of California granted in part Cones' motion to quash the subpoena served on Western & Southern Life Insurance Co. by the Defendants. The Plaintiff is one of two named Plaintiffs in the case pursing wage and hour claims on behalf of a putative class. She alleges that she, and others employed by the Defendants, were misclassified as exempt from overtime compensation and denied meal and rest periods and properly itemized wage statements. The Defendants served Western with a subpoena seeking the deposition transcript of Cones, and changes made by Cones to the deposition transcript, along with all deposition exhibits, taken in Schoulee Cones v. Western and Southern Life Insurance Company, United States District Court, Southern District of California, Case No. 3:17-cv-00925-W-SKC. The Western case was brought by the Plaintiff against Western for failing to pay a medical claim that arose years after she left her employment with Parexel. Her Complaint in that action alleged that in denying coverage, Western had claimed the Plaintiff falsely denied having been diagnosed with a stroke. There is no dispute that the deposition transcript covers the Plaintiff's medical history because the claims in that case involved her medical history. The case has since settled. The Plaintiff moves to quash the subpoena arguing it seeks private medical information that is irrelevant to the claims in this wage and hour case. The Defendants oppose the Motion, arguing the Plaintiff has waived her privacy rights in her medical information and that her deposition testimony regarding her medical condition is relevant. More specifically, they assert her medical history is relevant to her adequacy to serve as a class representative. Additionally, the Defendants argue her credibility is potentially undermined both by Western's claim that the Plaintiff made false representations in procuring insurance and the Plaintiff seeking expedited proceedings in the Western case based on her medical condition, but not doing so in the case. Magistrate Judge Skomal agrees that a plaintiff can waive their privacy right in their medical history by putting that medical history at issue in a case or when it is directly relevant to the litigation. In the case, there is no waiver based on the Plaintiff's claims. The Plaintiff's wage and hours claims do not put her medical history at issue. She is not seeking damages for any emotional distress or any asserting any claims that result in any physical injury or disability that might out her medical history at issue. The Defendants primarily argue the Plaintiff has put her medical history at issue by seeking to represent a class. They do not cite any authority from the Ninth Circuit or any district courts finding waiver of a plaintiff's privacy rights in their medical history based on a plaintiff seeking to serve as a class representative. Nor have they cited any authority indicating that seeking to represent a class is alone a basis to inquire into a plaintiff's health at all, absent some history of delays or other issues in the case as a result of a plaintiff's health issues. As to the scope of the waiver, even assuming the Plaintiff has put her health at issue by seeking to represent a class, any waiver on that basis is not broad enough to encompass the entirety of the Plaintiff's deposition in another case that includes medical history well beyond the area put at issue by adequacy, i.e. prosecute the case. As to the Plaintiff's deposition testimony in the Western case, the Plaintiff concedes that if she had described her job duties at Parexel in the deposition, her statements might be relevant. She then denies she did. The Defendants dispute this and seek to file a sur-reply indicating that the counsel for Western has indicated that the transcript contains approximately 10 pages of transcript in which Parexel is referenced. Although it seems unlikely, these two things are not necessarily contradictory, the Magistrate Judge finds. He says the Plaintiff's deposition transcript could include information about her employment at Parexel without discussing her job duties. Regardless, the Defendants are not entitled to the entire transcript demanded in the subpoena on this basis. The sur-reply they seek to file would also not resolve this issue. The Defendants would just file a sur-reply that would only provide information about a conversation with another attorney about the substance of Plaintiff's testimony that concern her employment and job duties at Parexel. Given the Plaintiff's testimony about her employment at Parexel might be relevant to her claims in this case, the Plaintiff will provide the Defendants with a redacted copy of her deposition transcript in the Western case that discloses the portions of her testimony that address in any way her employment with Parexel. If there is no testimony regarding Parexel, the Plaintiff's counsel will provide the Defendants with a declaration to that effect. For these reasons, Magistrate Judge Skomal granted in part the Plaintiff's Motion to Quash as set forth above. He denid the Ex Parte Request to File a Sur-Reply. A full-text copy of the Court's June 20, 2018 Order is available at https://bit.ly/2M8rqAC from Leagle.com. Schoulee Cones, an individual, on behalf of herself and all others similarly situated & Dexter Pasis, an individual, on behalf of himself and all others similarly situated, Plaintiffs, represented by James M. Treglio, Keegan & Baker LLP & Patrick N. Keegan -- pkeegan@keeganbaker.com -- Keegan & Baker, LLP. Parexel International Corporation, a Massachusetts corporation licensed to do business in the State of California & Parexel International, LLC, a Massachusetts limited liability company licensed to do business in the State of California, Defendants, represented by Diana Tabacopoulos -- dtabacopoulos@seyfarth.com -- Seyfarth Shaw LLP & Michael Warner Kopp -- mkopp@seyfarth.com -- Seyfarth Shaw LLP. PARK GROVE: Court Dismisses S. Hullinger's FCRA Suit ---------------------------------------------------- Judge Pamela L. Reeves of the U.S. District Court for the Eastern District of Tennessee, Knoxville, granted the Defendants' motion to dismiss the case, SUSAN HULLINGER, on behalf of herself and all others similarly situated. Plaintiff, v. PARK GROVE INN, INC., et al., Defendants, Case No. 3:17-cv-00400 (E.D. Tenn.). The Plaintiff brings the class action against Park Grove, alleging the Defendant violated the Fair and Accurate Credit Transactions Act ("FACTA") by printing the first six and last four digits of her credit card number, as well as the expiration date, on her receipt. On Sept. 10, 2015, Hullinger made a purchase at Park Grove using her credit card. The receipt for the purchase displayed the first six and the last four digits of the credit card account number as well as the expiration date of the credit card. On Sept. 6, 2017, Hullinger filed suit alleging that Park Grove violated FACTA which prohibits printing more than the last five digits of a credit card number or the expiration date on a receipt. She alleges she was subjected to a heightened risk of identity theft and that her private information was exposed as a result of this FACTA violation. Hullinger demands statutory damages, punitive damages, costs, and attorney fees. The Defendant moves for dismissal for lack of subject matter jurisdiction, stating that the Plaintiff has not alleged an injury in fact and lacks standing to pursue her claim. Judge Reeves finds that the Plaintiff has not alleged a concrete injury sufficient to warrant Article III standing because she does not allege that another copy of the receipt exists; that her receipt was lost or stolen; that she was the victim of identity theft; or even that another person has viewed the receipt. Nor did the Plaintiff allege that any risk of harm is real, not conjectural or hypothetical, given that she could shred the receipt along with any remaining risk of disclosure. Allegations of "possible future injury" are not sufficient to satisfy Article III. Allegations of future harm at some indefinite time cannot be an actual or imminent injury. Instead, a threatened injury must be impending. Thus, the Plaintiff has failed to carry her burden of demonstrating an injury in fact for this FACTA violation. The case presents a perfect example of a procedural violation that may result in no harm, in contrast to the examples of statutory violations that constitute concrete injuries in and of themselves. FACTA arose from a desire to prevent identity theft that can occur when cardholders' private financial information, such as a cardholder's complete credit card number, is exposed on electronically printed payment receipts. That is not the case here. When a case is dismissed for lack of federal subject matter jurisdiction, Article III deprives federal courts of the power to dismiss the case with prejudice. As a result, when a case is dismissed for lack of Article III standing, that disposition cannot be entered with prejudice, and instead must be dismissed without prejudice. Based on the foregoing analysis, Judge Reeves must join the numerous courts outside of the circuit holding that a plaintiff does not have standing to pursue a FACTA claim absent an allegation of actual harm or a material risk of harm. The Plaintiff's alleged injury is precisely the type of abstract injury that Spokeo, Inc. v. Robins held was insufficient to satisfy the requirement of concreteness. Accordingly, she granted the Defendants' motion to dismiss and dismissed without prejudice the Complaint for lack of subject matter jurisdiction. A full-text copy of the Court's June 19, 2018 Memorandum Opinion is available at https://is.gd/8ktxpq from Leagle.com. Susan Hullinger, Plaintiff, represented by Patrick M. Barrett, III -- pbarrett@barrettlawofficetn.com -- Barrett Law Office, PLLC. Park Grove Inn, Inc., doing business as Park Grove Inn, Defendant, represented by Jamie Ballinger Holden -- jballinger@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. PETCO ANIMAL: Job Applicants' Class Has Prelim Certification ------------------------------------------------------------ The United States District Court for the Southern District of California granted Plaintiffs' Unopposed Motion Seeking Provisional Class Certification in the case captioned JACKLYN FEIST, individually and on behalf of all others similarly situated; and ANGELICA ZIMMER, individually and on behalf of all others similarly situated, Plaintiffs, v. PETCO ANIMAL SUPPLIES, INC., Defendant, Case No. 3:16-cv-1369-H-RNB (S.D. Cal.). The Plaintiffs allege that the Defendant obtained and reviewed consumer reports detailing their financial histories after the Plaintiffs applied for jobs at the Defendant's stores, without first providing the Plaintiffs the notice required by the Fair Credit Reporting Act (FCRA). Zimmer was hired by a Petco store and worked there for roughly five months. Feist was not hired, allegedly because of adverse information on her consumer report. The class includes all individuals who applied for jobs at Petco stores during the class period, and for whom Petco reviewed consumer reports. The subclass includes those members of the Disclosure Class who were subject to an adverse employment action as a result of the information contained in their consumer reports. The numerosity prerequisite is met if "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Plaintiffs estimate that the Disclosure Class exceeds 37,000 members, while the Adverse Action Subclass contains roughly 52 members. Accordingly, the proposed classes meet the numerosity prerequisite in this case. The commonality prerequisite is met if there are "questions of law or fact common to the class. Here, whether Defendant provided the proposed class members adequate FCRA notice implicates numerous common questions of law and fact. Accordingly, the commonality prerequisite is met. Typicality requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. Here, Zimmer suffered the same alleged injury as the Disclosure Class (Petco reviewed her consumer report without providing adequate FCRA notice), while Feist suffered the same alleged injury as the Adverse Action Subclass her offer of employment was rescinded because of the information contained in her consumer report, and she was not given an opportunity to correct any false information in the report. The Court accordingly finds the typicality requirement satisfied. Adequacy of representation under Rule 23(a)(4) requires that the class representative be able to fairly and adequately protect the interests of the class. Representation is adequate if the plaintiff and class counsel (1) do not have any conflicts of interest with other class members and (2) will prosecute the action vigorously on behalf of the class. Here, there do not appear to be any conflicts of interest between Plaintiffs and the absent class members. Plaintiffs and their counsel have vigorously prosecuted the interests of the class, and class counsel has extensive experience in complex class action litigation. Accordingly, Plaintiffs and their counsel are adequate representatives of the proposed class. For the foregoing reasons, Plaintiffs have met all of the requirements of Rule 23(a). Here, the significant common issue in this case is whether Defendant provided adequate FCRA notice to the class members before obtaining their consumer reports. Moreover, the legal remedies for the class members and subclass members are the same monetary damages, which differ only based on whether adverse action was taken as a result of the information in the class members' consumer reports. Accordingly, the Court concludes that the issues common to the proposed class are significant and predominate over individual issues. The superiority inquiry requires determination of whether objectives of the particular class action procedure will be achieved in the particular case. Here, there is no evidence that absent class members wish to pursue their claims individually. Moreover, any class member who wants to pursue an individual claim may elect not to participate in the settlement agreement. Accordingly, the superiority requirement is met here. The Plaintiff has satisfied the requirements of Rule 23(b)(3). Thus, the Court grants preliminary certification to the proposed class. A full-text copy of the District Court's June 11, 2018 Order is available https://tinyurl.com/yc4a4s9g from Leagle.com. Jacklyn Feist, Individually and on Behalf of All Others Similarly Situated & Angelica Zimmer, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP & Mark S. Greenstone -- mgreenstone@glancylaw.com -- Glancy Prongay & Murray LLP. Petco Animal Supplies, Inc., Defendant, represented by Frederick William Kosmo, Jr. -- fkosmo@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Marissa L. Lyftogt -- mlyftogt@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Hali M. Anderson -- handerson@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP & Loleena Ansari May -- lmay@wilsonturnerkosmo.com -- Wilson Turner Kosmo. PHOENIX FINANCIAL: Haider Seeks to Recover Damages Under FDCPA -------------------------------------------------------------- Abdul W. Haider, individually and on behalf of all those similarly situated v. Phoenix Financial Services LLC, Case No. 7:18-cv-06242 (S.D.N.Y., July 10, 2018), seeks to recover damages and attorneys' fees and costs arising from the Company's alleged violations of the Fair Debt Collection Practices Act. Phoenix Financial Services LLC is an Indiana Limited Liability Company with a principal place of business in Marion County, Indiana. Phoenix is regularly engaged, for profit, in the collection of debts allegedly owed by consumers.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: csanders@barshaysanders.com PIER 1 IMPORTS: Deal in J. Pedraza's Suit Has Final Approval ------------------------------------------------------------ In the case, JENNIFER PEDRAZA, individually and on behalf of all others similarly situated, Plaintiff, v. PIER 1 IMPORTS (U.S.), INC.; and DOES 1 through 20, inclusive, Defendants, Case No. 8:16-cv-01447-JLS (DFM) (C.D. Cal.), Judge Josephine L. Staton of the U.S. District Court for the Central District of California granted final approval of the Joint Stipulation of Class Action Settlement and Release of Claims. Pursuant to the Preliminary Approval Order, dated Nov. 30, 2017, the appointed Settlement Administrator, Simpluris, mailed a Notice of Settlement to all the known Class Members. In response to the Notice, no Class Members objected to the Settlement and 67 Class Members requested exclusion from the Settlement. After finding that the Settlement offers significant monetary recovery to all the Settlement Class Members and that such recovery is fair, adequate and reasonable when balanced against further litigation related to liability and damages issues, Judge Staton ordered the Settlement Administrator to distribute the Individual Settlement Payments to the Class Members in accordance with the provisions of the Settlement. For purposes of the Judgment and for the Settlement only, the Judge certified the Class as defined in the Settlement Agreement. For purposes of this Final Approval Order and the Settlement only, she confirmed the appointment of Plaintiff Jennifer Pedraza as the class representatives for the Class. Further, she finally approved the Class Representative Enhancement Award, as fair and reasonable, to the Plaintiff in the amount of $3,500. She ordered the Settlement Administrator to distribute the Class Representative Enhancement Award to the Plaintiff in accordance with the provisions of the Settlement. The Judge also confirmed the appointment of Kashif Haque, Samuel A. Wong, Jessica L. Campbell, Ali S. Carlsen and Shelly D. Song of Aegis Law Firm, PC, as the Class Counsel for the Class. Further, she finally approved a Class Counsel Fees Award, as fair and reasonable, not to exceed $225,000. The Judge approved approved a Class Counsel Costs Award, as fair and reasonable, in the amount of $19,655.42. For purposes of the Final Approval Order and the Settlement only, Judge Staton confirmed the appointment of Simpluris, Inc. as the Settlement Administrator to administer the Settlement of the matter as more specifically set forth in the Settlement Agreement and further finally approved Settlement Administration Costs, as fair and reasonable, of $65,000. After Settlement administration has been completed in accordance with the Settlement Agreement, and in no event later than 260 days after the Effective Date, the Plaintiff will file a report with the Court certifying compliance with the terms of the Settlement. A full-text copy of the Court's June 19, 2018 Judgment is available at https://is.gd/L64S9h from Leagle.com. Jennifer Pedraza, individually and on behalf of all others similarly situated, Plaintiff, represented by Ali Sarah Carlsen, Aegis Law Firm PC, Kashif Haque -- khaque@aegislawfirm.com -- Aegis Law Firm PC, Da Hye Song -- song@aegislawfirm.com -- Aegis Law Firm, Jessica L. Campbell, Aegis Law Firm PC & Samuel A. Wong -- swong@aegislawfirm.com -- Aegis Law Firm PC. Pier 1 Imports U.S. Inc, Defendant, represented by Emily E. Schroeder -- eschroeder@seyfarth.com -- Seyfarth Shaw LLP & Aaron Robert Lubeley -- alubeley@seyfarth.com -- Seyfarth Shaw LLP. POLARITYTE INC: Faces Lawi Securities Suit Over Share Price Drop ---------------------------------------------------------------- YEDID LAWI, Individually and on Behalf of All Others Similarly Situated v. POLARITYTE, INC., DENVER LOUGH, and JEFF DYER, Case No. 2:18-cv-00541-PMW (D. Utah, July 6, 2018), seeks to recover compensable damages caused by the Defendants' alleged violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. On April 7, 2017, PolarityTE announced the closing of a transaction through which the Company purchased Dr. Denver Lough's pending Patent #14/954,335 in exchange for over $104 million of PolarityTE stock. Just one week prior to the closing of the transaction, on March 31, 2017, Dr. Lough received a notice of non-final rejection of the Patent by the U.S. Patent and Trademark Office ("USPTO"). On June 4, 2018, the USPTO issued a final rejection for the Patent. In June 2018, Citron Research published a report exposing the Defendants' failure to disclose the USPTO's March 31, 2017 notice of non-final rejection of the Patent and highlighting the USPTO's June 4, 2018 final rejection of the Patent. On this news, PolarityTE's share price fell $10.59, or 27.3%, to close at $28.14 on June 26, 2018, according to the complaint. PolarityTE is incorporated in Delaware, and its principal executive offices are located in Salt Lake City, Utah. The Individual Defendants are directors and officers of the Company. PolarityTE purports to be a commercial-stage biotechnology and regenerative biomaterials company focused on discovering, designing and developing a range of regenerative tissue products and biomaterials for the fields of medicine, biomedical engineering and material sciences. The Company's key development is SkinTE, which is intended to be used by physicians or other appropriate healthcare providers for homologous uses of skin tissues/integument.[BN] The Plaintiff is represented by: Jon V. Harper, Esq. HARPER LAW, PLC P.O. Box 581468 Salt Lake City, UT 84158 Telephone: (801) 910-4357 E-mail: jharper@jonharperlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, 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 - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: 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 PORTLAND, OR: ACLU Files Class Action Over "Kettling" Tactic ------------------------------------------------------------ Gordon R. Friedman, writing for The Oregonian/OregonLive, reports that the city of Portland is seeking a reporter's declaration under oath for its defense in a civil rights lawsuit, a move generally viewed by the press as a strongarm tactic given laws that protect journalists from testifying about their work. If freelance reporter Mike Bivins refuses to sign the declaration, he may face a subpoena to testify in court, he said in an interview on July 23. Mr. Bivins said he was told of a possible subpoena during a phone call with the lead city attorney in the case, Naomi Sheffield. "She said, 'I don't want this to come off as threatening but we might seek a subpoena if you don't want to sign the declaration,'" Mr. Bivins said. The city is interested in five tweets Mr. Bivins posted during a June 4, 2017 protest in downtown Portland. The tweets include Mr. Bivins' account of what may be illegal or rowdy activity by protesters. Mr. Bivins published articles for Willamette Week and Al Jazeera about the protest, during which police allegedly corralled hundreds of protesters and demanded their IDs. The tactic, called "kettling," led the American Civil Liberities Union to file a class action suit in federal court against Mayor Ted Wheeler and more than 50 police officers. Mr. Bivins provided The Oregonian/OregonLive messages from Sheffield seeking his under-oath statement. "I have reviewed your Twitter feed, including the photographs, comments, and video that you have posted relating to that event," Sheffield wrote on July 20. "We would appreciate it if you would be willing to sign a declaration stating under oath, that certain video, photographs and comments are an accurate depiction or description of the events as you perceived them on June 4, 2017." Duane Bosworth, a Portland attorney who has defended journalists against government subpoena requests, said in his view Oregon's media "shield law" would likely protect Mr. Bivins from being forced to testify. Shield laws protect reporters' privilege to not testify about information they gather or their sources. The Oregon shield law is perhaps the strongest in the nation, said Bosworth, who occasionally represents The Oregonian/OregonLive. Mr. Bivins said he does not intend to sign a declaration in order to "not appear like I'm on one side or another." He said the ACLU approached him about joining their lawsuit against the city, but he declined. If a judge were to issue a subpoena, Mr. Bivins said he would consult with an attorney before deciding whether to testify or not. People under subpoena who refuse to testify can be jailed for contempt of court. "That'd be crazy if they did" issue a subpoena, Mr. Bivins said. Mr. Bosworth said governments can chill reporters' ability to gather news and make sources by issuing subpoena threats. "If a person is speaking to a reporter and knows that information could be provided to the cops that would dry up those conversations," Mr. Bosworth said. He said what "no reporter wants" is to appear to take sides, or worse, be compelled to do so by the government. [GN] PRO CUSTOM: Loses Bid to Dismiss S. Sedhom's Wage Suit ------------------------------------------------------ The United States District Court for the Eastern District New York denied Defendants' Motion to Dismiss the case captioned STEPHANIE SEDHOM, individually, and on behalf of all others similarly situated, Plaintiff, v. PRO CUSTOM SOLAR LLC, Defendant(s), No. 2:17-cv-07559 (ADS)(AYS)(E.D.N.Y.). Pro Custom is a New Jersey limited liability company that provides solar energy to building owners in New York State. The Plaintiff was employed by the Defendant as a manual worker. The Plaintiff worked seventy to eighty hours a week, over the course of six to seven days per week, and, allegedly, was not compensated at an overtime rate when she worked more than forty hours a week. She was paid on a biweekly basis. The Defendant contends that the Plaintiff's complaint must be dismissed because it seeks liquidated damages and CPLR 901 precludes class action claims for statutory violations that include penalties unless the statute expressly permits otherwise. The Plaintiff argues that since the case has been removed to federal court, the Federal Rules of Civil Procedure apply rather than the New York Civil Practice Law and Rules. The Supreme Court has explicitly held Section 901 does not apply to federal class actions in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L. Ed. 2d 311 (2010). In Shady Grove, the Court was presented with the question of whether C.P.L.R. 901 precludes plaintiffs from bringing class actions in federal court where the suit seeks to recover a penalty As here, the plaintiff had not yet sought an order certifying the class. Instead, the question was whether the case could proceed as a class action. Apparently, the Defendant misapprehends the ruling in Shady Grove. First, contrary to the Defendant's assertion, the plaintiff in Shady Grove brought its claims pursuant to a New York statute, not a federal statute. Second, the Court dealt with the question of whether the case could proceed as a putative class action, not whether the class should be certified. Finally, the Defendant is incorrect that Shady Grove does not address whether plaintiffs may pursue a class action and seek statutory penalties when the very statutes it relies upon to make the claim forbids such damages. Shady Grove in fact does exactly that. The Supreme Court held that Rule 23 governs as to whether a plaintiff may maintain a class action suit despite the limitation of CPLR 901. Therefore, because the Supreme Court has explicitly held that N.Y. C.P.L.R. Section 901 does not govern whether putative class actions may be maintained in federal court, the Plaintiff's complaint need not be dismissed because it seeks liquidated damages. Rule 23 controls, and it does not have any of the requirements of N.Y. C.P.L.R. 901. As N.Y. C.P.L.R. Section 901 does not control here because the Defendant removed this action to federal court, and that is the sole basis upon which the Defendant moves, the Defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) is denied. A full-text copy of the District Court's July 16, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7js86kr from Leagle.com. Stephanie Sedhom, Individually, and on behalf of all others similarly situated, Plaintiff, represented by Abdul Karim Hassan , Abdul Hassan Law Group. Pro Custom Solar LLC, Defendant, represented by Michael J. Marotte -- mjm@spsk.com -- Schenck, Price, Smith & King LLP & John Patrick Campbell -- jpc@spsk.com -- Schenck Price Smith & King. PURDUE PHARMA: Court Defers Ruling on Pa. Cities' Bid to Remand --------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania denied Plaintiffs' Motion to Remand the case captioned THE CITY OF NEW CASTLE; CITY OF ALIQUIPPA; and UNION TOWNSHIP, on behalf of themselves and all others similarly situated, Plaintiffs, v. PURDUE PHARMA L.P.; PURDUE PHARMA, INC.; THE PURDUE FREDERICK COMPANY, INC.; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.; ORTHO-McNEIL-JANSSEN PHARMACEUTICALS, INC. N/K/A JANSSEN PHARMACEUTICALS, INC.; JANSSEN PHARMACEUTICA, INC. N/K/A JANSSEN PHARMACEUTICALS, INC.; ENDO HEALTH SOLUTIONS INC.; and ALLERGAN PLC, Defendants, Civil Action No. 18-1472 (E.D. Pa.). In the Class Action Complaint, the Plaintiffs purport to assert claims on behalf of themselves and as a class action on behalf of all political subdivisions, municipalities, cities, townships and counties in the Commonwealth of Pennsylvania who incurred damages as a result of the Defendants' marketing of prescription opioids. The Complaint asserts the following three causes of action against all the Defendants: (1) consumer fraud-deceptive practices (2) public nuisance; and (3) unjust enrichment. Teva Defendants seek entry of a stay of this case in light of the conditional transfer order issued by the Opiate MDL Panel to help ensure uniform treatment of related issues, avoid piecemeal litigation, and conserve judicial resources. They argue that entering a stay will allow the MDL court to resolve Plaintiffs' remand motion along with several other remand motions in actions likewise removed under Class Action Fairness Act (CAFA) and the MDL court has stated that it will address remand motions in the coordinated proceeding. The Plaintiffs argue that a stay is entirely inappropriate as the Plaintiff's Motion to Remand involves the only class action brought by the municipalities of Pennsylvania against Pennsylvania Defendants in the Opiate Litigation which makes it uniquely different than any other potential remand motion before the MDL. First, the Court finds that entering the stay is likely to promote judicial efficiency and consistency in decision making, especially since the Plaintiffs' Motion to Remand raises issues likely to arise in other cases pending in the Opiate MDL transferee court. In fact, as pointed out by Teva Defendants, two remand motions in other actions now pending in the Opiate MDL argue the specific question of whether remand is required under CAFA's Local Controversy Exception. Second, regarding the balance of harm to the parties, the possibility of a slight delay in the action suffered by Plaintiffs is outweighed by the possible prejudice that Teva Defendants will suffer of potentially inconsistent rulings by individual federal courts and duplicative litigation. In light of the conditional transfer of this case to the Opiate MDL, it appears that a decision regarding the transfer will be made soon. Third, it appears that the duration of the requested stay is unknown, but it will most likely be short since the JPML is set to make a transfer determination in the near future. The Court will defer adjudicating the Plaintiffs' Motion to Remand on the merits by denying it without prejudice. A full-text copy of the District Court's July 16, 2018 Memorandum is available at https://tinyurl.com/y8yps2wj from Leagle.com. THE CITY OF NEW CASTLE, CITY OF ALIQUIPPA & UNION TOWNSHIP, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by DANIEL C. LEVIN -- dlevin@lfsblaw.com -- LEVIN SEDRAN & BERMAN. PURDUE PHARMA, L.P., PURDUE PHARMA, INC. & THE PURDUE FREDERICK COMPANY, INC., Defendants, represented by JUDY LEE LEONE -- judy.leone@dechert.com -- DECHERT LLP. TEVA PHARMACEUTCIALS USA, INC. & CEPHALON, INC., Defendants, represented by HARVEY BARTLE, IV -- harvey.bartle@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP & STEVEN A. REED -- steven.reed@morganlewis.com -- MORGAN LEWIS. JOHNSON & JOHNSON, JANSSEN PHARMACEUTICALS, INC., ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC., other & JANSSEN PHARMACEUTICA, INC., other, Defendants, represented by DAVID F. ABERNETHY -- david.abernethy dbr.com -- DRINKER BIDDLE & REATH LLP & REBECCA TRELA -- rebecca.trela dbr.com -- DRINKER BIDDLE & REATH LLP. ENDO HEALTH SOLUTIONS INC., Defendant, represented by MAHNU V. DAVAR -- Mahnu.Davar@apks.com -- ARNOLD & PORTER KAYE SCHOLER LLP. ALLERGAN PLC, Defendant, represented by DANIEL T. BRIER -- dbrier@mbklaw.com -- MYERS, BRIER & KELLY, JENNIFER G. LEVY -- jennifer.levy@kirkland.com -- KIRKLAND & ELLIS LLP & SUZANNE P. CONABOY -- sconaboy@mbklaw.com -- MYERS BIER & KELLY, LLP. QUINN MEDICAL: Must Produce Fax Transmission Logs in TCPA Suit -------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, granted Plaintiffs' Motion to Compel Production in the case captioned PROGRESSIVE HEALTH AND REHAB CORP., Plaintiff, v. QUINN MEDICAL, INC., Defendant, Civil Action No. 2:17-cv-58 (S.D. Ohio). The Plaintiff, Progressive Health and Rehab Corp., filed this putative class action against Defendant, Quinn Medical, Inc., under the junk fax provision of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005 (TCPA). The Defendant violated the TCPA when it mass-faxed unsolicited advertisements to the Plaintiff and others. The Plaintiff seeks an order compelling the Defendant to produce fax transmission logs that identify the fax numbers of each successful recipient for 26 at-issue fax broadcasts. The Plaintiff maintains that the Court should compel production of the transmission logs because they contain information that its expert needs to complete his report. The Defendant asserts that the information the Plaintiff seeks to obtain through production of the transmission logs lacks relevance at the pre-certification stage. The Plaintiff represents that its expert will use the information contained in the transmission logs, such as how many advertisements were sent, to whom the advertisements were sent, and how many transmissions were successful to answer questions the Court posed in its December 4, 2017 Order. The Court agrees that the information contained in the at-issue transmission logs could bear on the Rule 23(a) requirements of numerosity, commonality, and typicality, as well as predominance and implied ascertainability requirements in Rule 23(b)(3). The Defendant's objection to production of the transmission logs based upon privacy concerns and its speculation that the Plaintiff's counsel might use the information to solicit new clients fail to persuade the Court to reach a different conclusion. As the Plaintiff points out, the Defendant's concerns are addressed by the Court's entry of the parties' stipulated Confidentiality Agreement and Order. The Defendant's proposed alternatives redaction of all but four digits of the number and/or utilization of a statistical sampling fall short. The Court acknowledges that statistical sampling could be an efficient approach to investigate the validity of the Defendant's defenses. But this does not lead the Court to conclude that production of the transmission logs is unnecessary because both statistical sampling and redaction of all but four digits would prevent the Plaintiff's expert from ascertaining how many successful faxes were sent to unique numbers and whether the Defendant faxed substantially similar faxes to the same list of recipients, information that could bear the Rule 23(a) and (b)(3) requirements. A full-text copy of the District Court's June 11, 2018 Opinion and Order is available https://tinyurl.com/y8o9msae from Leagle.com. Progressive Health and Rehab Corp., Plaintiff, represented by Robert E. DeRose, II -- bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson + Wanca, pro hac vice, Ross M. Good -- rgood@andersonwanca.com -- Anderson + Wanca, pro hac vice & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson + Wanca, pro hac vice. Quinn Medical Inc., Defendant, represented by David B. Shaver , Surdyk, Dowd & Turner Co., L.P.A., David M. Schultz , Hinshaw & Culbertson, pro hac vice, Jeffrey Charles Turner , Surdk Dowd & Turner Co., L.P.A. & John Paul Ryan -- jryan@hinshawlaw.com -- Hinshaw & Culbertson LLP, pro hac vice. RELIN GOLDSTEIN: Violates FDCPA, Henriquez Suit Says ---------------------------------------------------- Juan R. Henriquez, Jr., individually and on behalf of all those similarly situated v. Relin, Goldstein & Crane, LLP, Case No. 2:18-cv-03965 (E.D.N.Y., July 10, 2018), accuses the Defendant of violating the Fair Debt Collection Practices Act, which prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. Relin, Goldstein & Crane, LLP, is a New York Limited Liability Partnership with a principal place of business in Monroe County, New York. The Company is regularly engaged, for profit, in the collection of debts allegedly owed by consumers.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: csanders@barshaysanders.com RESPOND POWER: Court Dismisses B. Gillis' Class Claims ------------------------------------------------------ The United States District Court for the Eastern District of Pennsylvania granted Defendant's Motion to Dismiss Class Claim in the case captioned BARBARA GILLIS; THOMAS GILLIS; SCOTT McCLELLAND; KIMBERLY McCLELLAND; INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. RESPOND POWER, LLC, Defendant, Civil Action No. 14-3856 (E.D. Pa.). Counts I and II of the Plaintiffs' First Amended Class Action Complaint are dismissed with prejudice. A full-text copy of the District Court's July 16, 2018 Order is available at https://tinyurl.com/y7fujgbh from Leagle.com. BARBARA GILLIS, THOMAS GILLIS, SCOTT R. & KIMBERLY A. MCCLELLAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by CHARLES J. KOCHER -- SALTZ MONGELUZZI BARRETT & BENDESKY PC, MICHAEL D. DONOVAN -- DONOVAN LITIGATION GROUP, LLC, PATRICK HOWARD -- SALTZ MONGELUZZI BARRETT & BENDESKY & SIMON BAHNE PARIS -- SALTZ MONGELUZZI BARRETT & BENDESKY, P.C. RESPOND POWER, LLC, Defendant, represented by DAVID R. KING -- dking@herrick.com -- HERRICK FEINSTEIN LLP, KATHLEEN H. ROBINSON -- hrobinson@herrick.com -- HERRICK FEINSTEIN LLP & RONALD J. LEVINE -- rlevine@herrick.com -- HERRICK FEINSTEIN LLP. RIPPLE LABS: Borden Ladner Attorney Discusses Class Action ---------------------------------------------------------- Melissa Smith, Esq., and Sinem Ersoy, Esq., of Borden Ladner Gervais LLP, in an article for Lexology, wrote that the proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners. The question as to whether crypto-assets should be classified as securities has been widely discussed both in Canada and the United States, with the Canadian Securities Administrators ("CSA") recently publishing guidance on this point in CSA Staff Notice 46-308 -- Securities Law Implications for Offerings and Tokens. Now, thanks to a class action lawsuit launched against Ripple Labs, the United States federal court also has a chance to weigh in on this issue. Coffey v Ripple Labs Inc., is a class action lawsuit filed by Ryan Coffey in May of this year in which it is alleged that Ripple Labs' XRP tokens constitute securities and, as such, their unregistered sale violates state and federal securities laws. The proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners. The Facts Ripple, a currency exchange network that is ranked in the top three by market capital, uses XRP tokens as its native currency. Unlike some other crypto-assets, XRP tokens are created by Ripple, not mined. Out of the 100 billion XRP tokens created at the protocol's establishment, a little over 8 billion are held by Ripple, slightly over 39 billion are distributed, and close to 53 billion are held in escrow. It is important to note that the "distributed" XRP token figure includes the 20 billion retained by the creators at the project's inception, as well as pending business development agreements. Ripple's protocol doesn't allow for any additional XRP tokens to be created. This centralization of tokens is one of the biggest criticisms against Ripple from the crypto-community. The statement of claim from Coffey asserts that "the XRP Ledger relies on trusted nodes operated by Ripple Labs to verify the legitimacy of transactions and maintain agreement on the network" and that "the trusted nodes are either selected or controlled by Ripple Labs itself". One of the most attractive features of Blockchain and crypto-assets for many users and investors is the fact that they are decentralized, which minimizes the risk of data manipulation and promotes openness in transactions. Risks associated with third party intermediaries are still present in Ripple and its payment protocol. Despite other allegations against Ripple by Coffey (including a never-ending ICO, corruption and attempted bribery of popular cryptocurrency exchanges), the question at the heart of the claim is whether the XRP token should be classified as a security. Due to the differing characteristics of crypto-assets, it is hard to classify the entire class of assets as a currency, a security or other traditional financial instruments. One end of the spectrum has cryptocurrencies like Bitcoin, which are used mainly to store and transfer value over a decentralized peer-to-peer network without a need for an intermediary, such as a bank. On the other end of the spectrum, Blockchain tokens sold through the DAO, a digital decentralized autonomous organization, functioned very differently. The DAO was essentially a crowdfunded and investor directed venture capital fund, where token holders made collective decisions on investments and would share in the upside of DAO funded enterprises. The DAO token sales were all classified as securities by the U.S. Securities and Exchange Commission ("SEC") as early as July 2017. In the Securities Enforcement Forum West 2018, the panel covering cryptocurrencies and ICOs agreed that as long as the SEC and other regulators continue to treat token issuances as securities offerings, the number of investor class actions inevitably will increase. Many crypto-assets (especially tokens) display characteristics of both classic currencies and securities, which is why some jurisdictions, including Canadian ones, use a case-by-case analysis to determine the classification of these digital assets. However, this can cause confusion and uncertainty in the marketplace amongst both ICO issuers and investors. The Howey Test While the technology behind crypto-assets is a new one, the question of whether an instrument constitutes a security is not. In the United States, section 2(a)(1) of the Securities Act of 1933 includes an "investment contract" as the definition of a security. The leading case from the U.S. Supreme Court is Securities and Exchange Commission v W J Howey Co(1946), which introduced the test to determine whether an instrument can be classified as an "investment contract". The test, known as the Howey Test, states that "a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise" will be deemed to be an investment contract and therefore a security. The complaint by Coffey is premised on the argument that the Howey Test is met because "the success of the XRP Ledger, and the profits the Class reasonably expected to derive from investing in XRP are dependent solely on the technical, entrepreneurial, and managerial efforts of Defendants and their agents and employees" and that the XRP scheme is built upon "structured agreements so that their partners' compensation is tied to appreciation of XRP — just as companies often do with shares to ensure that their interests are aligned". According to the Howey Test, whether XRP constitutes a security is based on whether the profits arise solely from the efforts of the promoter or a third party. However, the SEC report on the classification of DAO tokens as securities took a less stringent route and found it was the "undeniably significant" efforts of the DAO Curators that was essential to the success and profitability of these investments and, as such, these tokens should be classified as securities. The case against Ripple is not the only claim that examines this issue. Other cases filed against ICO issuers in the U.S. include: -- In re Tezos Securities Litigation, Nos. 17-cv-06779,17-cv-06829, 17-cv-07095 - claiming unregistered sale of Tezos tokens -- Rensel v. Centra Tech Inc., No. 17-cv-24500 - claiming Centra's ICO constituted an unregistered offering and sale of securities -- Hodges v. Monkey Capital, LLC, No. 17-cv-81370 - claiming fraudulently issuing securities ahead of the ICO -- Balestra v. ATBCOIN, LLC, No. 17-10001 - claiming ATBCoin issued unregistered securities -- Stormsmedia, LLC v. Giga Watt, Inc., No. 17-cv-00438 - claiming violation of the Securities Act by issuing unregistered securities -- Moss v. Giga Watt, Inc., No. 18-cv-00100 - claiming violation of the Securities Act by issuing unregistered securities Implications for Canada The decisions in these lawsuits will impact the Canadian crypto-market. While not binding, Canadian courts and regulators often look to their American counterparts in order to have a cohesive market. The term "investment contract" is also used in the definition of a security in Canada and, like the U.S., the term is undefined in most provinces (Manitoba and Québec have a definition for investment contracts in their respective securities acts). In Canada, the two main tests to determine a security's existence are adapted and modified from their U.S. counterparts. The first test in Canada is derived from the Howey Test and requires a common enterprise in which the expectation of profits flow from the "undeniably significant" efforts of persons other than the investor. The second test is an adaptation of the risk capital test from Hawaii v Hawaii Market Center (1971). This test looks at the risks of an enterprise over which the offeree exercises no control and whether the investment is induced by representations of profits by the offeror. However, while these tests can be used to find the existence of a security, the Supreme Court of Canada has taken a broader approach and found that an instrument can constitute a security even if the two tests are ineffective. Given the broad definition of a security in Canada, if XRP tokens are found to be a security in the U.S., it is likely that they will be classified as a security in Canada as well. Even if XRP tokens are classified as a security by the United States federal court or the SEC, this decision may not be conclusive on how to classify other crypto-assets. The differences between XRP tokens and other crypto-assets, including decentralization and the business practices of Ripple, are significant ones. Other assets would have to be evaluated on their own merits. As such, while a decision in the case against Ripple will be important for the crypto-community, each token needs to be considered in light of its own circumstances. Even with the recently provided guidance from the securities regulatory bodies, an influx of lawsuits against crypto-companies can be expected in order to provide a greater level of certainty. [GN] SAKS & CO: Court Grants Final Approval of Class Settlement ---------------------------------------------------------- The United States District Court for the Central District of California granted Final Approval of Class Settlement Agreement in the case captioned JAREL BROWN, an individual, on behalf of himself and others similarly situated, Plaintiff, v. SAKS & COMPANY, LLC a Delaware Limited Liability Corporation, and DOES 1 thru 50, inclusive, Defendants, Case No. 2:17-cv-04210 (SJO)(C.D. Cal.). Pursuant to the Preliminary Approval Order, the appointed Settlement Administrator, Simpluris, Inc., mailed a Notice of Settlement to all known Class Members by First Class U.S. Mail. The Notice of Settlement fairly and adequately informed Class Members of the terms of the proposed Settlement and the benefits available to Class Members there-under. The Notice of Settlement further informed Class Members of the pendency of the Action, of the proposed Settlement, of their right to receive their share of the Settlement, of the scope and effect of the Settlement's Released Claims, of the preliminary Court approval of the proposed Settlement, of the exclusion and objection timing and procedures, of the date of the Final Approval Hearing and of the right to appear in connection with the Final Approval Hearing. For purposes of this Order and this Settlement only, the Court confirms the appointment of Plaintiff Jarel Brown as the class representative for the Class. Further, the Court approves a Service Award to Plaintiff in the amount of Seven Thousand Dollars ($7,000). The Court orders the Settlement Administrator to distribute the Service Award to the Plaintiff in accordance with the provisions of the Settlement. For purposes of this Order and this Settlement only, the Court confirms the appointment of Craig J. Ackermann of Ackermann & Tilajef, P.C.; Jonathan Melmed of Melmed Law Group, P.C.; and David Winston of Winston Law Group, P.C., as Class Counsel. Further, the Court finally approves a Class Counsel Fees Award, as fair and reasonable, not to exceed 25% of the Total Settlement Amount or One Hundred Fifty-Nine Thousand, Seven Hundred Dollars ($159,700), which will be distributed as 1/3 Ackermann & Tilajef, P.C.; 1/3 to Melmed Law Group, P.C.; and 1/3 to Winston Law Group, P.C. As well, the Court finally approves a Class Counsel Costs Award, as fair and reasonable, not to exceed Eight Thousand, Seven Hundred and Seven Dollars and Fifty-Six Cents ($8,707.56), which will be distributed as Five Thousand, Four Hundred and Twenty-Two Dollars and Seventeen Cents ($5,422.17) to Ackermann & Tilajef, P.C.; One Thousand, Four Hundred and Nineteen Dollars and Fifty-Two Cents ($1,419.52) to Melmed Law Group, P.C.; and One Thousand, Eight Hundred and Sixty-Five Dollars and Eighty-Seven Cents ($1,865.87) to Winston Law Group, P.C. The Court finally approves Settlement Administration Costs of Ten-Thousand Five-Hundred Dollars ($10,500) as fair and reasonable. A full-text copy of the District Court’s July 16, 2018 Order is available at https://tinyurl.com/y9heudq6 from Leagle.com Jarel Brown, an individual, on behalf of himself and others similarly situated, Plaintiff, represented by Craig J. Ackermann - cja@ackermanntilajef.com - Ackermann and Tilajef PC, David S. Winston - david@employmentlitigators.com - Winston Law Group PC & Jonathan Melmed - jm@melmedlaw.com - Melmed Law Group PC. Saks and Company, LLC, a Delaware Limited Liablity Corporation, Defendant, represented by Dawn S. Fonseca - dfonseca@littler.com - Littler Mendelson PC, Julie A. Dunne - jdunne@littler.com - Littler Mendelson PC & Ruth N. Dapper - rdapper@littler.com - Littler Mendelson PC SANTA FE NATURAL: Pontusson Files Suit Over Deceptive Marketing --------------------------------------------------------------- CLIVE PONTUSSON, on behalf of himself and all others similarly situated v. SANTA FE NATURAL TOBACCO COMPANY, INC., REYNOLDS AMERICAN INC., and R.J. REYNOLDS TOBACCO COMPANY, Case No. 1:18-cv-00594-LCB-LPA (M.D.N.C., July 6, 2018), seeks redress for the Defendants' alleged deceptive marketing of their "Natural American Spirit" brand cigarettes as "Natural" and "Additive-Free." Santa Fe Natural Tobacco Company, Inc., is a New Mexico corporation whose principal place of business is in Santa Fe, New Mexico. Reynolds American Inc. is a North Carolina corporation whose principal place of business is in Winston-Salem, North Carolina. SFNT is an operating subsidiary of Reynolds. R.J. Reynolds Tobacco Company is a North Carolina corporation whose principal place of business is in Winston-Salem, North Carolina. Like SFNT, RJR is an operating subsidiary of Reynolds. The Defendants sell Natural American Spirit cigarettes in differently-colored packs, all of which the Defendants uniformly and prominently label and advertise with representations that the cigarettes are "Natural" and "100% Additive-Free."[BN] The Plaintiff is represented by: Joel R. Rhine, Esq. RHINE LAW FIRM, PC 1612 Military Cutoff Rd, Suite 300 Wilmington, NC 28403 Telephone: (910) 772-9960 Facsimile: (910) 772-9062 E-mail: jrr@rhinelawfirm.com - and - Scott P. Schlesinger, Esq. Jonathan R. Gdanski, Esq. Jeffrey L. Haberman, Esq. SCHLESINGER LAW OFFICES, P.A. 1212 SE 3rd Avenue Fort Lauderdale, FL 33316 Telephone: (954) 467-8800 Facsimile: (954) 320-9509 E-mail: scott@schlesingerlaw.com jgdanski@schlesingerlaw.com jhaberman@schlesingerlaw.com - and - Melissa Wolchansky, Esq. Amy E. Boyle, Esq. HALUNEN LAW 1650 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 605-4098 Facsimile: (612) 605-4099 E-mail: wolchansky@halunenlaw.com boyle@halunenlaw.com - and - Caleb Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90254 Telephone: (877) 500-8780 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. 14646 N. Kierland Blvd., Suite 145 Scottsdale, AZ 85254 Telephone: (800) 493-2827 E-mail: hart.robinovitch@zimmreed.com - and - Charles J. LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 8120 Woodmont Avenue - Suite 810 Bethesda, MD 20814 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: charles@cuneolaw.com - and - Samuel J. Strauss, Esq. TURK & STRAUSS LLP 613 Williamson Street, #201 Madison, WI 53703 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 E-mail: sam@turkestrauss.com - and - D. Greg Blankinship, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue - Suite 605 White Plains, NY 10605 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 E-mail: gblankinship@fbfglaw.com jfrei-pearson@fbfglaw.com tgarber@fbfglaw.com - and - Daniel L. Warshaw, Esq. Alexander R. Safyan, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: dwarshaw@pswlaw.com asafyan@pswlaw.com - and - James W. Gustafson, Esq. SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 517 N. Calhoun St. Tallahassee, FL 32301 Telephone: (850) 224-7600 Facsimile: (561) 383-9454 E-mail: jwg@searcylaw.com - and - Michael R. Reese, 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 - and - Matthew D. Schultz, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 S. Baylen St., Suite 600 Pensacola, FL 32502 Telephone: (850) 435-7140 Facsimile: (850) 436-7141 E-mail: mschultz@levinlaw.com - and - Ronald A. Marron, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com SCHUMACHER AUTOMOTIVE: Faces Eisenband Suit for TCPA Violation -------------------------------------------------------------- JERRY EISENBAND, individually and on behalf of all others similarly situated v. SCHUMACHER AUTOMOTIVE, INC., a Florida Corporation, Case No. 9:18-cv-80911-BB (S.D. Fla., July 11, 2018), accuses the Defendant of violating the Telephone Consumer Protection Act by engaging in unsolicited telemarketing directed towards prospective customers with no regard for their privacy rights. Schumacher is a Florida corporation whose principal office is located in Lake Park, Florida. Schumacher directs, markets, and provides its business activities, which is vehicle dealership, throughout the state of Florida.[BN] The Plaintiff is represented by: 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 SEARS HOLDINGS: DeFranza Suit Seeks to Stop Unsolicited Calls ------------------------------------------------------------- JOHN DEFRANZA, individually, and on behalf of all others similarly situated v. SEARS HOLDINGS CORPORATION, Case No. 1:18-cv-04739 (N.D. Ill., July 10, 2018), seeks to stop Sears from allegedly violating the Telephone Consumer Protection Act by making unsolicited, autodialed calls to consumers without their consent, including calls to consumers, who have registered their telephone numbers on the National Do Not Call registry, and to obtain injunctive and monetary relief for all persons harmed by Sears's conduct. Sears is located in Hoffman Estates, Illinois. Sears is one of the largest department store chains in the U.S. As of Feb. 3, 2018, Sears had more than 1,000 locations.[BN] The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 1072 Madison Ave. #1 Lakewood, NJ 08701 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com SEARS ROEBUCK: Faces Bui Suit Over Defective Water Heaters ---------------------------------------------------------- JON D. BUI, on behalf of himself and all others similarly situated v. SEARS, ROEBUCK, & CO., SEARS HOLDING CORP., and KCD IP, LLC, Case No. 5:18-cv-04121-SVK (N.D. Cal., July 11, 2018), arises from alleged defect in water heaters sold by the Defendants. Despite Sears' claim that its Kenmore products are among the most trusted in the United States, Sears designed, manufactured, marketed, and sold water heaters that have a material and serious defect, Mr. Bui alleges. Specifically, gas water heaters outfitted with Honeywell WV8840 gas valves manufactured from 2010 to 2012 ("Class Water Heaters") leak due to erosion of the gas valve's plastic sensors. The plastic temperature sensors erode or otherwise deteriorate such that a pin-sized hole (or holes) form in the sensors. As a result, water leaks from an affected water heater's sensor to the surrounding premises. The water flow will not stop until the water supply is shut off, the water is drained from the water heater, and the sensor is replaced (hereinafter, "The Defect"). Sears Holdings Corporation is a Delaware corporation with its principal place of business located in Hoffman Estates, Illinois. Sears Holdings Corporation is the parent company for Sears and Kmart, as well as other national retailers. Sears, Roebuck and Company is a wholly-owned subsidiary of Sears Holdings Corporation, with its principal place of business located in Hoffman Estates. Sears Roebuck offers its products and services through more than 1,320 Sears-branded and affiliated stores in the United States and Canada. KCD IP, LLC, is a Delaware limited liability company with its principal place of business located in Hoffman Estates. KCD is a special purpose entity created by Sears Holdings for securitization purposes that owns Sears' house brands, including Kenmore, Craftsman, and Diehard. Sears designs, manufactures, sells, and markets a wide range of home products. One of its key proprietary brands is Kenmore, which Sears refers to as "among the most trusted and preferred brands in the U.S."[BN] The Plaintiff is represented by: Crystal Foley, Esq. SIMMONS HANLY CONROY LLC 100 N. Pacific Coast Highway, Suite 1350 El Segundo, CA 90245 Telephone: (310) 322-3555 Facsimile: (310) 322-3655 E-mail: cfoley@simmonsfirm.com - and - Paul J. Hanly, Jr., Esq. Mitchell M. Breit, Esq. SIMMONS HANLY CONROY LLC 112 Madison Avenue New York, NY 10016-7416 Telephone: (212) 784-6400 Facsimile: (212) 213-5949 E-mail: phanly@simmonsfirm.com mbreit@simmonsfirm.com - and - Gregory F. Coleman, Esq. Mark E. Silvey, Esq. Adam A. Edwards, Esq. Lisa A. White, Esq. GREG COLEMAN LAW PC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com mark@gregcolemanlaw.com adam@gregcolemanlaw.com lisa@gregcolemanlaw.com SKYWEST AIRLINES: Underpays Ramp Agents, Barnes Suit Alleges ------------------------------------------------------------ JEREMY BARNES, and CORYELL ROSS, individually and on behalf of all others similarly situated, Plaintiffs v. SKYWEST AIRLINES, INC., and SKYWEST, INC., Defendants, Case No. 3:18-cv-04182-JCS (N.D. Cal., July 12, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Ross was employed by the Defendants as ramp agent from the year 2013 to 2017. Mr. Barnes was employed by the Defendants as ramp agent from the year 2014 to 2016. SkyWest Airlines, Inc. operates as an airline company that provides air services in North America. The company was founded in 1972 and is based in St. George, Utah. SkyWest Airlines, Inc. operates as a subsidiary of SkyWest Inc. [BN] The Plaintiffs are represented by: Laurence D. King, Esq. Matthew B. George, Esq. Mario M. Choi, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com mgeorge@kaplanfox.com mchoi@kaplanfox.com SNOOZE HIC LLC: Doesn't Pay Wages to Servers, Amador-Stewart Says ----------------------------------------------------------------- TRINITY AMADOR-STEWART, individually and on behalf of all others similarly situated, Plaintiff vs. SNOOZE HIC LLC, and DOES 1 through 100, Defendants, Case No. 18CV1604 LAB MDD (S.D. Cal., July 16, 2018) seeks to recover unpaid wages, unpaid compensation for missed meal and rest periods, unpaid overtime, interest, attorney's fees and costs. The Plaintiff was employed by the Defendants as server. Snooze Hic LLC is a Colorado corporation engaged in the restaurant business. The company is located at Denver, Colorado. [BN] The Plaintiff is represented by: Daniel D. Bodell Esq. BODELL LAW GROUP 11455 El Camino Real, Suite 480 San Diego, CA 92130 Telephone: (858) 461-4699 Facsimile: (858) 461-4703 SNYDER LAW FIRM: Court Dismisses K. Toepper's FDCPA Suit -------------------------------------------------------- In the case, Kathleen Toepper, on behalf of herself and all others similarly situated, Plaintiff, v. Law Office of Richard Snyder, Bruce Jackman, Richard W. Snyder, and Ben Bridge Jeweler, Inc., Defendants, Civil No. 17-4190 (JNE/KMM) (D. Minn.), Judge Joan N. Ericksen of the U.S. District Court for the District of Minnesota granted LORS Defendants' motion to dismiss all claims against them. Toepper filed the putative class action alleging that Law Office of Richard Snyder ("LORS"), Jackman, and Snyder ("LORS Defendants"), violated the Fair Debt Collection Practices Act ("FDCPA") and the automatic stay of a bankruptcy proceeding. Toepper also asserts claims for automatic stay violations against Defendant Ben Bridge. Around Sept. 14, 2016, Toepper incurred a debt with Ben Bridge when she purchased a gold chain and gold earrings. On Dec. 6, 2016, Toepper filed for Chapter 7 bankruptcy in the District of Minnesota. Ben Bridge retained LORS, who then sent three letters concerning the debt to Toepper's bankruptcy attorney. These three letters are the basis for all the claims against LORS Defendants. On March 7, 2017, Toepper's debts were discharged in bankruptcy. On Sept. 8, 2017, Toepper filed the putative class action against LORS Defendants and Ben Bridge. In her Amended Complaint, she alleges that the letters violated the FDCPA and the automatic stay provision of the United States Bankruptcy Code. Toepper asserts eight FDCPA claims, with each claim directed at more than one of the LORS Defendants. Toepper has not yet moved for class certification. LORS Defendants move to dismiss all claims against them under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Toepper opposes the motion. Judge Ericksen concludes that Toepper fails to state claims to relief under the FDCPA. He dismisses these claims under Rule 12(b)(6). He finds that (i) Toepper fails to state a claim to relief under Section 1692d because it is thus unclear how LORS Defendants violated Section 1692d; (ii) Toepper offers insufficient facts to establish that it was false and deceptive in violation of Section 1692e for LORS Defendants to assert in the letters that Toepper incurred her debt by fraud; (iii) there is no factual basis for finding that the letters misrepresented the debt as collectible outside of bankruptcy proceedings; (iv) it is speculative to conclude that threatened legal action is unintended if not pursued; (v) Toepper fails to provide factual allegations to support her Section 1692e(10) claims; (vi) Section 1692e(11) is inapplicable to the letters sent by LORS Defendants to Toepper's bankruptcy attorney, who is not a "consumer"; (vii) Toepper fails to plead facts plausibly demonstrating unfairness or unconscionability in violation of Section 1692f; and (viii) Section 1692g is inapplicable to the letters because they were communications with a non-consumer lawyer. Finally, as to Toepper's claim that LORS Defendants willfully violated the automatic stay provision when they sent the three letters, the Judge finds that Toepper provides insufficient facts to state a claim to relief for stay violations. He says it is not a violation of the stay for a creditor to advise a debtor's counsel that he will take any action that he legally may take under the Code. Bankruptcy law allows the creditor to file an adversary complaint and assert that fraud renders the debt nondischargeable. It was not therefore a violation of the automatic stay for LORS Defendants to advise Toepper's bankruptcy attorney of these possible actions. He dismisses these claims under Rule 12(b)(6). Based on this, Judge Ericksen granted LORS Defendants' motion to dismiss. He dismissed with prejudice the action against LORS, Jackman, and Snyder. A full-text copy of the Court's June 20, 2018 Order is available at https://bit.ly/2KgLO0M from Leagle.com. Kathleen Toepper, on behalf of herself and all others similarly situated, Plaintiff, represented by Mark L. Vavreck , Gonko & Vavreck, PLLC & Thomas J. Lyons, Jr. , Consumer Justice Center P.A. Law Office of Richard Snyder, Bruce Jackman, individually, Richard W. Snyder, individually & Ben Bridge Jeweler, Inc., Defendants, represented by Bradley R. Armstrong -- dley.Armstrong@lawmoss.com -- Moss & Barnett, PA & Sarah E. Doerr -- Sarah.Doerr@lawmoss.com -- Moss & Barnett, PA. SOUTHWEST AIRLINES: Underpays Ramp Supervisors, Battles et al. Say ------------------------------------------------------------------ JEFF BATTLES, LEROME THOMAS, STEVEN SPENCER, individually, and on behalf of all others similarly situated, Plaintiffs v. SOUTHWEST AIRLINES CO., Defendant, Case No. 1:18-cv-04822 (N.D. Ill.,July 13, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendants as ramp supervisors. Southwest Airlines Co. operates a passenger airline that provides scheduled air transportation services in the United States and near-international markets. Southwest Airlines Co. was founded in 1967 and is based in Dallas, Texas. [BN] The Plaintiff is represented by: Ryan F. Stephan, Esq. Haley R. Jenkins, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312)233-1550 Facsimile: (312) 233-1560 TOLL GLOBAL: C. Marquez's Wage Suit Remains in District Court ------------------------------------------------------------- In the case, CARLOS MARQUEZ, an individual and on behalf of all others similarly situated, Plaintiff, v. TOLL GLOBAL FORWARDING (USA) INC., a New York corporation; TGF MANAGEMENT GROUP HOLDCO, INC., a New Jersey corporation; INSPERITY EXPENSE MANAGEMENT, INC., a Texas corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 2:18-cv-03054-ODW (ASx) (C.D. Cal.), Judge Otis D. Wright, II, of the U.S. District Court for the Central District of California denied the Plaintiff's Motion to Remand. Marquez brought the putative class action against the Defendants. He filed his Complaint on Feb. 13, 2018 in Los Angeles Superior Court alleging seven causes of action: (1) Recovery of Unpaid Minimum Wage and Overtime; (2) Meal Period Violations; (3) Rest Period Violations; (4) Unpaid Wages During Employment; (5) Failure to Pay Wages Due at Separation of Employment; (6) Failure to Issue Accurate Itemized Wage Statements; and (7) Unfair Business Practices. The Plaintiff brought a class action against Defendants on behalf of himself and the class he seeks to represent. The Plaintiff Class consists of all non-exempt, hourly-paid employees currently and/or formally employed by the Defendants during a period beginning four years prior to the filing of the complaint and running through the date of final judgment in the case. The Plaintiff is a citizen of California. Toll is a New York corporation. TGF is a New Jersey corporation. Insperity is a Texas corporation. The Plaintiff alleges that the Defendants employed the Plaintiff Class during the relevant period, failed to pay those persons for all hours worked, including minimum wage and overtime premiums, failed to provide meal and rest periods or pay penalties in lieu thereof, and failed to pay wages upon ending of employment. The Plaintiff also alleges that each of the Defendant was the employer, owner, shareholder and/or alter ego of the remaining the Defendants, and was acting with the express and implied permission, consent, and knowledge of the other Defendants. Furthermore he alleges that the Defendants approved and authorized all unlawful acts described in the Complaint. The Plaintiff does not allege a specific number of violations, nor a specific amount of damages. He only alleges that the aggregate claims are below the $5 million threshold for federal jurisdiction. On April 11, 2018, TGF and Insperity removed the case, claiming federal jurisdiction under the Class Action Fairness Act ("CAFA"), or alternatively under the Labor Management Relations Act. The Plaintiff moved to remand on May 24, 2018. The parties do not dispute that the Plaintiff Class is made of more than 100 individuals and that the parties are minimally diverse as required by Section 1332(d)(2). Thus, the only issue is whether the Defendants have demonstrated by a preponderance of the evidence that the AIC is greater than $5 million. Judge Wright holds that the Defendants have met their burden, and the Court has jurisdiction under CAFA. The Defendants initially calculated the amount owed in penalties for missed meal and rest period violations at $6,327,883. This is based on a 100% violation rate, or one meal period violation and one rest period violation per shift. The Plaintiff, in arguing against the 100% rate relies heavily on Garibay v. Archstone Communities, LLC and Ibarra v. Manheim Investments, Inc. However, the Judge finds that the Plaintiff alleges no other rate that would be more accurate, and submits no evidence discrediting the 100% rate. As hte Plaintiff has submitted no evidence of any other rate, the Judge has only the Defendants' calculations to consider. Additionally, the Plaintiff as the "master of the claim" could have alleged fact-specific allegations to narrow the possible violation rate or penalties sought, keeping them below the threshold, but chose not to. Furthermore, he finds that the amount in controversy ("AIC") surpasses the jurisdictional threshold even when a substantially lower rate of violation is assumed. The Defendants similarly calculate the AIC for unpaid overtime wages assuming a violation rate of 100% and that class members were forced to work through a meal break every shift. However, this claim is largely dependent on the frequency of the meal and rest break violations alleged above. If the Judge applies the same logic and finds that allegations of "often" working through a break calls for a 50% violation rate, the amount initially calculated by the Defendants should be halved as well, yielding an AIC of $1,055,524.50. The Defendants estimate penalties for failure to provide accurate wage statements at $635,450. The Plaintiff does not contest this figure. Finally, the Defendant calculates $520,934 for the AIC in penalties for failure to pay wages of terminated or resigned employees from a calculation of 112 employees who resigned or were terminated during the relevant period. The Plaintiff takes issue with the assumption that all 112 employees were not paid their wages at the time of separation, but again the Plaintiff fails to suggest a different number of employees who were denied wages, and provides no evidence to counter the Defendants' assumptions. Furthermore, even if the Judge assumes arguendo that the 50% violation rate used above applies to the waiting time penalties, it will not make a difference on the jurisdictional question as the Defendants will still have crossed the $5 million threshold -- $3,163,941 (meal and rest break violations) + $1,055,524.50 (unpaid overtime) + $635,450 (inaccurate wage statements) + $260,467 (half of the Defendants' initially calculated waiting time penalties) = $5,115,382.50. Additionally, this calculation does not include attorney's fees, which the Plaintiff demands in the Complaint. The Defendants calculate attorney's fees as 25% of the total AIC. The Plaintiff does not contest this calculation. Twenty-five per cent of the sum of the claims ($5,115,382.50) yields fees of $1,278,845.62. This results in a total AIC of $6,394,228.12, which is well above the $5 million threshold. As the AIC exceeds the jurisdictional threshold under CAFA, and all other jurisdictional requirements are met, federal jurisdiction exists over this claim. Judge Wright therefore denied the Plaintiff's Motion to Remand. A full-text copy of the Court's June 19, 2018 Order is available at https://is.gd/hL4HrA from Leagle.com. Carlos Marquez, an individual and on behalf of all others similarly situated, Plaintiff, represented by Kevin Mahoney -- kmahoney@mahoney-law.net -- Mahoney Law Group APC & George Bernard Singer -- gsinger@mahoney-law.net -- Mahoney Law Group. Toll Global Forwarding USA Inc., a corporation, Defendant, represented by Eric E. Hill -- ehill@seyfarth.com -- Seyfarth Shaw LLP. TGF Management Group Holdco, Inc., a corporation & Insperity PEO Services, L.P., Erroneously Sued As Insperity Expense Management, Inc., Defendants, represented by Eric E. Hill, Seyfarth Shaw LLP & William J. Dritsas -- wdritsas@seyfarth.com -- Seyfarth Shaw LLP. TOTOTLAN INC: Refuses to Pay Overtime Wages, Hernandez Says ----------------------------------------------------------- CISMAI HERNANDEZ and JORGE HERNANDEZ on their own behalf and on behalf of all others similarly situated v. TOTOTLAN, INC., TOTOTLAN 2, INC., TOTOTLAN 3, INC., TOTOTLAN, LLC, and MIGUEL TORO, Case No. 1:18-cv-01776-MSK (D. Colo., July 12, 2018), alleges that the Defendants refused to pay their employees overtime wages for overtime hours worked and refused to provide their employees with rest periods as required by law. Tototlan, Inc., is a registered Colorado corporation, which has a principal street address in Aurora, Colorado. Tototlan 2, Inc., is a registered Colorado corporation, which has a principal street address in Castle Rock, Colorado. Tototlan 3, Inc., is a registered Colorado corporation, which has a principal street address in Elizabeth, Colorado. Tototlan, LLC, is a registered Colorado limited liability company with a principal street address in Elizabeth. The Corporate Defendants do business under the trade name "Guadalajara Family Mexican Restaurant." Miguel Toro is an owner and manager of the Guadalajara Family Mexican Restaurants.[BN] The Plaintiffs are represented by: Brandt Milstein, Esq. MILSTEIN LAW OFFICE 1123 Spruce Street Boulder, CO 80302 Telephone: (303) 440-8780 Facsimile: (303) 957-5754 E-mail: brandt@milsteinlawoffice.com TOYOTA MOTOR: 9th Circuit Appeal Filed in Heber Class Suit ---------------------------------------------------------- The Plaintiffs in the case captioned Albert Heber, et al. v. Toyota Motor Corporation, et al., Case No. 8:16-cv-01525-AG-JCG, pending in the U.S. District Court for the Central District of California, Santa Ana, took an appeal to the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, Plaintiff Al Heber says rodents -- in this case squirrels -- are gnawing away at the wiring inside his Toyota pickup truck. The soy-based coating used to protect wires from the elements is actually attracting the rodents, he says. The issue is causing displays on his truck to malfunction, including the fuel gauge, anti-lock brakes, four-wheel drive and check engine light. They're recurring problems he says Toyota will not cover under his warranty. The appellate case is captioned as Albert Heber, et al. v. Toyota Motor Corporation, et al., Case No. 18-55935. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 10, 2018; -- Transcript is due on September 10, 2018; -- Appellants Raymond Bennett, Stephen Bowling, Heidi Browder, Leslie Cochrane, James Donoghue, Sheila Faulkner, Jennifer Grammer, Albert Heber, David Johns, Heather Johns, Joseph Lesko, Kim Lesko, Cole Michaelis, Shannon Michealis, Melanie Munns, Jody Pla, Penny Porter, Douglas Powell, Matthew Siffermann, Janice Toler and Bobby York's opening brief is due on October 19, 2018; -- Appellees Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc.'s answering brief is due on November 19, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants Raymond Bennett, Stephen Bowling, Heidi Browder, Leslie Cochrane, James Donoghue, Sheila Faulkner, Jennifer Grammer, Albert Heber, David Johns, Heather Johns, Joseph Lesko, Kim Lesko, Cole Michaelis, Shannon Michealis, Melanie Munns, Jody Pla, Penny Porter, Douglas Powell, Matthew Siffermann, Janice Toler and Bobby York are represented by: Jerusalem F. Beligan, Esq. Brian D. Chase, Esq. BISNAR CHASE 1301 Dove Street Newport Beach, CA 92660 Telephone: (949) 752-2999 E-mail: jbeligan@bisnarchase.com bchase@bisnarchase.com - and - Brian S. Kabateck, Esq. KABATECK BROWN & KELLNER, LLP 644 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217-5000 E-mail: bsk@kbklawyers.com Defendants-Appellees TOYOTA MOTOR SALES, U.S.A., INC., and TOYOTA MOTOR CORPORATION are represented by: Frank C. Rothrock, Esq. Naoki Stephen Kaneko, Esq. SHOOK HARDY & BACON LLP 5 Park Plaza Irvine, CA 92614-2546 Telephone: (949) 475-1500 E-mail: frothrock@shb.com nkaneko@shb.com - and - Amir Nassihi, Esq. SHOOK, HARDY & BACON LLP One Montgomery Tower, Suite 2700 San Francisco, CA 94104 Telephone: (415) 544-1900 E-mail: anassihi@shb.com TRANS1 INC: Nov. 19 Settlement Fairness Hearing Set --------------------------------------------------- The following statement is being issued by Pomerantz LLP in regard to a proposed class action settlement. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:12-CV-00023-D PHILLIP J. SINGER, Individually and on Behalf of All Other : Persons Similarly Situated Plaintiff: v. TRANS1 INC., KENNETH REALI, JOSEPH P. SLATTERY, RICHARD : RANDALL, and MICHAEL LUETKEMEYER, Defendants. NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE SECURITIES OF BAXANO SURGICAL, INC. F/K/A TRANS1, INC.1 ("TRANS1") BETWEEN FEBRUARY 23, 2009 AND OCTOBER 17, 2011, BOTH DATES INCLUSIVE. 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 Eastern District of North Carolina, Southern Division, that a hearing will be held on November 19, 2018, at 2:00 p.m. before the Honorable James C. Dever III, Chief United States District Judge of Eastern District of North Carolina at the United States courthouse, 310 New Bern Avenue, Raleigh, North Carolina 27611 for the purpose of determining: (1) whether the proposed Settlement of the claims in the above-captioned Action for consideration including the sum of three million two hundred fifty thousand ($3,250,000.00) in U.S. dollars ("USD") (the "Settlement Amount") should be approved by the Court as fair, reasonable, and adequate; (2) whether the Plan of Allocation is fair and reasonable, and should be approved; (3) whether Lead Counsel's application for an award of attorneys' fees of up to 30% plus interest of the Settlement Amount, reimbursement of out-of-pocket expenses of not more than seventy-five thousand dollars ($75,000.00), and a compensatory award for Plaintiff of not more than three thousand dollars ($3,000.00), all to be paid from the Settlement Fund, should be approved; and (4) whether this Action should be dismissed with prejudice against the Defendants, as set forth in the Stipulation and Agreement of Settlement dated May 18, 2018 (the "Stipulation") filed with the Court. You are receiving this Notice because the Court has certified a class of investors for settlement purposes only ("Settlement Class") and you may be a member of the certified class ("Settlement Class Member"). The proposed Settlement Class will consist of all Persons who purchased or acquired TranS1 securities (including through the exercise of warrants or options) between February 23, 2009 and October 17, 2011, both dates inclusive (the "Class Period") who were allegedly damaged thereby. Excluded from the Settlement Class are (i) the Defendants; (ii) the officers and directors of TranS1 during the Class Period; (iii) members of the immediate families of the Individual Defendants and the officers and directors of TranS1 during the Class Period; (iv) any entity in which any Defendant had a controlling interest during the Class Period; and (v) the successors, heirs, and assigns of any such excluded Person. Also excluded from the Settlement Class are those Persons who timely and validly seek exclusion from the Settlement Class. If you purchased TranS1 securities during the Class Period, your rights may be affected by this Action and the Settlement thereof, including the release and extinguishment of claims you may possess relating to your ownership interest in TranS1 securities. If you have not received a detailed Notice of Proposed Settlement of Class Action, Motion for Attorneys' Fees and Expenses, and Settlement Fairness Hearing ("Notice") and a copy of the Proof of Claim and Release Form, you may obtain copies by contacting the Claims Administrator at: Singer v. TranS1, Inc., et al. c/o Epiq Class Action & Claims Solutions, Inc. PO Box 5270 Portland, OR 97208-5270 This case has been litigated since January 24, 2012. Plaintiff alleges, that in violation of the U.S. federal securities laws, TranS1's securities were inflated during the Class Period. Plaintiff alleges, among other things, that the Defendants made false and/or misleading statements and/or omissions during the Class Period regarding TranS1's reimbursement policies and compliance with federal healthcare fraud and abuse laws, including the Federal False Claims Act. Plaintiff further alleges that partial disclosures and events revealed Defendants' fraud, thereby injuring Plaintiff and the Settlement Class of investors. Defendants deny these allegations. The Settlement will resolve the lawsuit and claims as to the Defendants and the Released Parties. Plaintiff and the Settlement Class are represented by Lead Counsel who may be reached by contacting: Jeremy A. Lieberman, Pomerantz LLP, 600 Third Avenue, 20th Floor, New York, NY 10016 (212) 661-1100. If you are a Settlement Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release Form postmarked no later than January 2, 2019, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any Judgment rendered in the Action whether or not you make a claim. If you want to be excluded from the Settlement Class, you must submit to the Claims Administrator a request for exclusion, in accordance with the procedures set forth in the Notice, so that it is received no later than October 29, 2018. If you decide to exclude yourself from the Settlement Class, and wish to file your own individual lawsuit, Defendants may argue that you face a time bar under applicable statutes of limitation or repose, risks that you should discuss with an appropriate legal advisor. All members of the Settlement Class who have not requested exclusion from the Settlement Class will be bound by any Judgment entered in the Action pursuant to the Stipulation. If you are a Settlement Class Member and do not exclude yourself, you can object to the Settlement, Plan of Allocation, or Lead Counsel's request for an award of attorneys' fees and reimbursement of expenses and compensatory award to Plaintiff in the manner and form explained in the detailed Notice and received no later than October 29, 2018. Any questions regarding the Settlement should be directed to Lead Counsel for the Settlement Class. PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, THE DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. DATED: February 23, 2018 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA 1 On November 12, 2014, Baxano Surgical, Inc. petitioned for bankruptcy relief in the United States Bankruptcy Court for the District of Delaware. On July 24, 2015, the bankruptcy court confirmed Baxano's bankruptcy plan, which provided for the dissolution of Baxano upon the effective date of the plan. The plan went into effect on August 10, 2015. [GN] TRIANGLE CAPITAL: Kent Sues over Barings Merger Deal Disclosures ---------------------------------------------------------------- MICHAEL KENT, individually and on behalf of all others similarly situated, Plaintiff v. TRIANGLE CAPITAL CORPORATION; E. ASTON POOLE; STEVEN C. LILLY; W. MCCOMB DUNWOODY; MARK M. GAMBILL; BENJAMIN S. GOLDSTEIN; MARK F. MULHERN; SIMON B. RICH, JR.; and GARLAND S. TUCKER, Defendants, Case No. 1:18-cv-02137-ELH (D. Md., July 12, 2018) alleges violation of the Securities Exchange Act of 1934. According to the complaint, on April 3, 2018, the Defendant Triangle Capital's Board of Directors entered into an Asset Purchase Agreement with an affiliate, Benefit Street Partners L.L.C., and a Stock Purchase and Transaction Agreement with Barings LLC. On June 1, 2018, the Defendants filed a proxy statement with the U.S. Securities and Exchange Commission in connection with the proposed transactions. The Plaintiff alleges in the complaint that the proxy statement fails to disclose the Defendant's projected cash flows; fails to disclose the potential conflict of interest of their investment banker; and fails to disclose material information regarding the background of the proposed transactions, in violation of the Securities Exchange Act. Triangle Capital Corporation is a business development company specializing in private equity and mezzanine investments. Triangle Capital Corporation was incorporated on October 10, 2006 and is based in Raleigh, North Carolina. [BN] The Plaintiff is represented by: Thomas J. Minton, Esq. GOLDMAN & MINTON, P.C. 3600 Clipper Mill Rd., Suite 201 Baltimore, MD 21211 Telephone: (410) 783-7575 E-mail: tminton@charmcitylegal.com - and - RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 - and – RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 TWENTY-FIRST CENTURY: Faces Gross Suit over Disney Merger --------------------------------------------------------- MELVIN GROSS, individually and on behalf of all others similarly situated, 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, Defendants, Case No. 1:18-cv-01046-UNA (D. Del., July 16, 2018) is an action against the Defendants and the members of its Board of Directors for their violations of the Securities Exchange Act. The Plaintiff also seeks to enjoin the vote on a proposed transaction, pursuant to which, after spinning off certain of their businesses into a newly listed company ("New Fox"), the Defendants will be acquired by The Walt Disney Company ("Disney") through TWDC Holdco 613 Corp. ("New Disney"), WDC Merger Enterprises I, Inc. ("Delta Sub") and WDC Merger Enterprises II, Inc. ("Wax Sub"). According to the complaint, on June 20, 2018, the Defendants 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 the Defendants will receive $38 per share, with the election to receive their consideration, on a value equalized basis, in the form of cash or stock, 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, the Defendants' stockholders will own approximately 17-20% and Disney stockholders will own approximately 80% to 83% of the combined company. On June 28, 2018, the Defendants filed a Proxy Statement with the SEC. The Proxy Statement, which recommends that the Defendants stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) the Defendants' financial projections, including the financial projections relied upon by the Defendants' 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 the Defendants' stockholders need such information in order to make a fully-informed voting or appraisal decision in connection with the Proposed Transaction. Unless remedied, the Defendants' 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. Twenty-First Century Fox, Inc., together with its subsidiaries, operates as a diversified media and entertainment company primarily in the United States, the United Kingdom, Continental Europe, Asia, and Latin AmericaThe company was formerly known as News Corporation. Twenty-First Century Fox, Inc. was founded in 1922 and is headquartered in New York, New York. [BN] The Plaintiff is represented by: 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 Facsimile: (302) 295-2873 E-mail: rernst@oelegal.com dmurray@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 - and - Melissa A. Fortunato, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: (212) 308-5858 Facsimile: (212) 486-0462 E-mail: fortunato@bespc.com UNITED STATES: D.C. Court Grants TRO Against Asylum Seeker Removal ------------------------------------------------------------------ The United States District Court, District of Columbia, granted Plaintiffs' Motion for Temporary Restraining Order in the case captioned M.G.U., et al., Plaintiffs, v. KIRSTJEN NIELSEN, et al., Defendants, Civil Action No. 18-1458 (PLF)(D.D.C.). Plaintiff E.F. and her nine-year-old son fled threats of violence in Guatemala to pursue asylum in the United States. After crossing the U.S.-Mexico border on May 14, 2018, they were initially detained together, but then forcibly separated the next day and detained in facilities hundreds of miles apart. Ms. E.F. has not seen her son since then. At the hearing, counsel for Ms. E.F. orally moved for an order prohibiting the defendants from removing Ms. E.F. from the United States without her son prior to the Court's decision on her preliminary injunction motion. Counsel for the defendants explained that if the immigration judge were to affirm the negative credible fear determination and deny Ms. E.F.'s asylum application, she would be subject to a final order of removal. The order of removal would leave her at risk of being immediately removed from the United States without her son before this Court has an opportunity to resolve the pending motion for a preliminary injunction. What deeply troubles the Court at this stage is the risk that Ms. E.F. will be removed from the United States without her young son and without her valid consent to be removed without her son, before the Court has an opportunity to rule on her preliminary injunction motion seeking immediate reunification with him. The recent representations made by the United States in the class action pending before Judge Dana M. Sabraw in federal court in San Diego only heighten this concern. Immediate reunification will be impossible if Ms. E.F. is removed from the United States while her son remains detained here. And the defendants have declined to commit to keeping Ms. E.F. in the United States until after the Court rules on the preliminary injunction motion. In light of the urgent need to preserve the status quo until after the Court has made a determination on the merits of Ms. E.F.'s preliminary injunction motion, the Court will construe her lawyer's oral motion for an order that she not be removed from the country before she is reunited with her son, as a motion for a temporary restraining order. And upon consideration of the arguments made by counsel in their briefs and in open court, as well as the entire record in this case, the Court will grant Ms. E.F.'s motion for a temporary restraining order. The purpose of a temporary restraining order is to preserve the status quo for a limited period of time until the Court has an opportunity to pass on the merits of the demand for a preliminary injunction. While the Court must still consider the traditional four-part test for injunctive relief even at the temporary restraining order stage, the short duration of such an order and the imminence of the harm may justify the grant of a temporary restraining order to preserve the status quo. The Defendants and their officers, agents, servants, employees, attorneys, and all those who are in active concert or participation with them, are temporarily restrained from removing from the United States plaintiff E.F. until further order of this Court. A full-text copy of the District Court's July 16, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ybey8we3 from Leagle.com. M. G. U., E. F. & A. P. F., Plaintiffs, represented by David J. Ball -- dball@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Jerome William , TEXAS RIOGRANDE LEGAL AID, INC, Amanda Chisholm , TEXAS RIOGRANDE LEGAL AID, INC, pro hac vice, Anand Sithian -- asithian@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, pro hac vice, Katherine kelly Fell -- kfell@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, pro hac vice, Meredith Arfa -- marfa@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Peter E. McGraw , TEXAS RIOGRANDE LEGAL AID, INC, pro hac vice & Steven Herzog -- sherzog@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, pro hac vice. KIRSTJEN NIELSEN, THOMAS HOMAN, DANIEL A. BIBLE, RODNEY S. SCOTT, KEVIN K. MCALEENAN, MANUEL PADILLA, JR., SCOTT LLOYD, ALEX AZAR, ROBERT L. BOATRIGHT, WILLIAM JOYCE, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES & U.S. OFFICE OF REFUGEE RESETTLEMENT, Defendants, represented by Jeremy S. Simon , U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA,Nicole Newcomb Murley , U.S. DEPARTMENT OF JUSTICE Civil Division/Off. of Immig. Litigation & Sarah B. Fabian , U.S. DEPARTMENT OF JUSTICE. UNITED STATES: Sheridan County Vote to Join PILT Class Action ------------------------------------------------------------- Michael Illiano, writing for The Sheridan Press, reports that Sheridan county commissioners on July 17 voted to join a class-action lawsuit against the federal government to recover payments in lieu of taxes the county is owed. The federal government provides PILT to local governments that maintain federal lands. Governments cannot collect property taxes on federal lands within their boundaries and PILT are designed to help local governments provide services like firefighting, police presence, schools and road maintenance to those lands. The lawsuit began in 2017 in Kane County, Utah, after Congress did not appropriate enough money to fully fund its PILT obligations in fiscal years 2015, 2016 and 2017. Last December, a court ruled in favor of Kane County and certified the lawsuit as a class action. Since then, hundreds of counties from 48 states have joined the lawsuit. Deputy County Attorney Clint Beaver said Sheridan County can join the class action lawsuit at no cost or risk. "In my experience this is somewhat unique, but I would say there is a very, very high likelihood of success," Beaver said. "Basically, the case is already won." County administrative director Renee Obermueller said Sheridan County is owed about $37,000 in PILT payments from that three-year period. Commissioner Bob Rolston explained while Sheridan County receives a relatively small amount in PILT payments, other counties are reliant on the federal funding. "You take counties like that county down in Utah, [PILT payments] keep them going," Mr. Rolston said. "I think the fact that other counties are tying on to help them in this class-action suit is a very good thing." Commissioner Terry Cram added that Sheridan County could also use the $37,000 it is owed. PILT payments were fully funded in 2018 and, in total, Wyoming counties received about $32 million in federal funding. Natrona County received the largest PILT payment at $3.6 million. According to the county budget, Sheridan County received about $1.1 million in PILT payments during the last fiscal year. [GN] UNITEDHEALTHCARE INSURANCE: Wrongfully Denied Healthcare Claims --------------------------------------------------------------- K.H.B. by and through his father, K.D.B., individually and on behalf of all others similarly situated, Plaintiff v. UNITEDHEALTHCARE INSURANCE COMPANY, Defendant, Case No. 3:18-cv-04175-JSC (N.D. Cal., July 12, 2018) is an action against the Defendant for its alleged failure to comply with the terms of its insured plans, specifically the Defendant's denial of coverage for programs that treat documented mental illnesses and substance use disorders. According to the complaint, the Plaintiff suffers from a variety of mental illnesses, including major depressive disorder, suicide ideation, attention deficit hyperactivity disorder and drug use. After his second suicide attempt, he sought and received treatment for his illnesses at Elements Wilderness Program, a licensed outdoor and behavioral therapy program located in Huntington, Utah. Elements Wilderness is a fully licensed and statutorily authorized by the State of Utah to provide an organized program of mental health services to youths age 13-17 years in an outdoor setting. The Plaintiff is enrolled in the Defendant's plan which expressly covers mental health and substance abuse conditions. The plan independently provides coverage for "all Medically Necessary treatment" for a "Serious Emotional Disturbance" for an enrolled dependent child, such as the Plaintiff, who suffers from, inter alia, "risk of suicide. The plan further provides "all Medically Necessary treatment" for a participant or beneficiary with a "Severe Mental Illness" which includes a diagnosis of "major depressive disorders." Despite the fact that three separate coverage provisions in the plan promised coverage for the Plaintiff's treatment at Elements Wilderness, the Defendant excluded coverage based on the reason that such claims are not available under the Plaintiff's plan. UnitedHealthcare Insurance Company provides insurance services. The Company offers vision, critical illness, short term health, dental, medicaid, and term life insurance, as well as business plans and group retiree benefits. UnitedHealthcare Insurance serves customers in the United States. [BN] The Plaintiff is represented by: Eleanor Hamburger, Esq. Richard E. Spoonemore, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER 701 Fifth Avenue, Suite 2560 Seattle, WA 98104 Telephone: (206) 223-0303 Facsimile: (206) 223-0246 E-mail: ele@sylaw.com rspoonemore@sylaw.com - and - Jordan Lewis, Esq. JORDAN LEWIS, P.A. 4473 N.E. 11th Avenue Fort Lauderdale, FL 33334 Telephone: (954) 616-8995 Facsimile: (954) 206-0374 E-mail: jordan@jml-lawfirm.com - and - Nina Wasow, Esq. Catha Worthman, Esq. FEINBERG JACKSON WORTHMAN & WASOW, LLP 2030 Addison Street, Suite 500 Berkeley, CA 94704 Telephone: (510) 269-7998 Facsimile: (510) 269-7994 E-mail: nina@feinbergjackson.com catha@feinbergjackson.com US BANK: Underpays Mortgage Brokers, Loud Suit Alleges ------------------------------------------------------ James Loud, individually and on behalf of all others similarly situated, Plaintiff v. U.S. Bank National Association, and Does 1 through 10, Defendants, Case No. 8:18-cv-01235 (C.D. Cal., July 13, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Plaintiff was employed by the Defendants as mortgage broker and loan originator from May 2015 to March 2018. U.S. Bank National Association provides commercial banking services for individuals, businesses, and institutions. U.S. Bank National Association was formerly known as Firstar Bank, National Association and changed its name to U.S. Bank National Association in August, 2001. The company was founded in 1863 and is based in Cincinnati, Ohio. It has banking and ATMs locations in the United States and internationally. U.S. Bank National Association operates as a subsidiary of U.S. Bancorp. [BN] The Plaintiff is represented by: Joshua H. Haffner, Esq. Graham G. Lambert, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90017 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 E-mail:jhh@haffnerlawyers.com gl@haffnerlawyers.com - and - Paul Stevens, Esq. STEVENS, L.C. 700 S. Flower Street, Suite 660 Los Angeles, CA 90017 Telephone: (213) 270-1211 Facsimile: (213) 270-1223 E-mail: pstevens@stevenslc.com WEBSTAURANT STORE: TRO Bid in FLSA Suit Partly Granted ------------------------------------------------------ In the case, BRITTANY ROGERS, on behalf of Herself and All Others Similarly-situated, Plaintiff, v. THE WEBSTAURANT STORE, INC., Defendant, Civil Action No. 4:18-CV-00074-JHM (W.D. Ky.), Judge Joseph H. McKinley, Jr. of the U.S. District Court for the Western District of Kentucky, Owensboro Division, granted in part and denied in part the Plaintiff's Motion for Temporary Restraining Order and Injunction. On May 14, 2018, Rogers, filed a civil action against Webstaurant, alleging that Webstaurant failed to pay overtime compensation to Rogers and others similarly situated in violation of the Fair Labor Standards Act ("FLSA"). Rogers was employed by Webstaurant at the customer support facility in Madisonville, Kentucky, from April 13, 2015 to Dec. 19, 2017, as a customer support specialist. Rogers alleges Webstaurant engaged in three practices that deprived her and similarly situated employees overtime pay under the FLSA: (1) failing to pay employees for time worked in excess of forty hours per week and for which Webstaurant knew the employee was working because the employee was logged in to Webstaurant's customer support or similar computer system, which records log-in and log-out times; (2) failing to pay employees for time worked (and intentionally not recorded by Webstaurant) by employees preliminary to and after logging in to Webstaurant's customer support system, including time opening the facility, preparing the workstation, and logging in, time logging out, closing the workstation, preparing the facility for closing, and time attending training sessions and other meetings; and (3) requiring employees under "performance improvement plans" to perform additional work relating to those plans outside of such employees' regularly-scheduled five eight-hour shifts per week, but not paying employees for such work. Webstaurant filed an answer denying that it failed to pay the overtime compensation. On June 13, 2018, the Plaintiff filed a Motion for Conditional Certification, Expedited Discovery, and Court-Authorized Notice. On June 14, 2018, the Plaintiff filed an Emergency Motion for Temporary Restraining Order prohibiting the Defendant from communicating with putative class members about FLSA claims and attempting to purport to settle FLSA claims, and filed a supplemental memorandum for TRO. Specifically, the Plaintiff seeks an injunction ordering the Defendant: (A) to cease and desist from communicating with the putative class members about the action or the members' FLSA rights in any way other than to send an email; (B) to send an email to all of the recipients of both of the Defendant's emails referenced; (C) to file with the Court a certificate that it has sent such email, along with the email addresses to which such email was sent, to which the May 25 email from Groff was sent and to which the June 11 email was sent; and (D) to cease and desist from accepting or delivering purported proposed waivers of rights to pursue claims against The WEBstaurant Store, Inc. under the FLSA, including the purported proposed waivers delivered June 13, 2018. At the hearing, the Plaintiff further requested an expedited briefing schedule for the conditional class certification motion, a list of all employees that executed the Waiver and Release, and attorney's fees incurred in filing the current motion. On June 15, 2018, the Defendant filed a response, arguing that the Plaintiff lacks standing to move for a Temporary Restraining Order. Additionally, it contends that it has not engaged in any improper communications with its own employees and did not convey any false or misleading information regarding this litigation. Webstaurant maintains that Groff's communication was benign, alerting his employees that Rogers or her attorney may be contacting them to join in the suit against Webstaurant, and affirmatively conveyed that employees would not be retaliated against for making claims against the company in good faith. Webstaurant argues that it has engaged in no such action to coerce or retaliate against its employees. Judge McKinley rejected the Defendant's argument that the Plaintiff lacks standing to bring the current motion. He explains that courts have consistently recognized that the district court's Rule 23(d) authority and FLSA authority extends to communications between counsel and prospective class members. Further, the law reflects that a named plaintiff in a collective action certainly has an interest in what current and former employees are being told about the claims and what they are being required to sign to the extent it affects the FLSA claim. The Judge finds that the Defendant's communications with its employees after the filing of the FLSA claim are misleading. As discussed in the hearing, while the May 25, 2018 email was not terribly misleading, it did omit some important details about the Plaintiff's action. Plus, while the email promised the Company would never retaliate against anyone bringing claims against the company in good faith, one could reasonably infer from the email that the Company believes the Plaintiff's claim were not made in good faith. Thus, one is left to wonder about possible retaliation. However, it is the June 11, 2018 email, when viewed in light of the Waiver and Release that is misleading and improper and causes the most concern. Therefore, in an effort to alleviate the misleading and coercive communications, the Judge ordered the Defendant to send a corrective email to all employees who received the previous emails. This corrective email will be sent by June 21, 2018, by 3:00 p.m. (CDT). The Defendant will file a certification on June 22, 2018, confirming compliance with the Order. He did not enjoin the Defendant from paying the compensation offered to those employees that executed the Waiver and Release. However, as outlined in the corrective email, the acceptance of compensation, and the execution of the Waiver and Release, will not prevent any employee from joining the collective action if it is certified. Additionally, the Company is prohibited from issuing any further company-wide communications pertaining to the action without prior approval of the Court. Finally, in considering the Court's obligation to tailor its order in the least restrictive manner, the Judge denied the Plaintiff's motion to prevent any future contact by the Defendant with putative class members. The Defendant may continue to conduct fact-finding investigations with its current employees in an effort to address the current motion for conditional certification and its defense of the action. Additionally, the Order is in no way intended to interfere with the Defendant's ability to communicate with its employees about other business matters. The Judge denied the Plaintiff's request for expedited briefing with respect to the conditional certification motion currently pending. He likewise denied the Plaintiff's motion for attorney's fees for bringing the motion. Finally, he granted the Plaintiff's motion to compel the Defendant to provide a list of all employees who have executed the Waiver and Release. On July 20, 2018, the Defendant will provide this information to the Plaintiff's counsel. A full-text copy of the Court's June 20, 2018 Memorandum Opinion and Order is available at https://bit.ly/2OEneKq from Leagle.com. Brittany Rogers, on behalf of herself and all others similarly-situated, Plaintiff, represented by Mark N. Foster -- MFoster@MarkNFoster.com. The Webstaurant Store, Inc., Defendant, represented by Courtney L. Graham -- cgraham@strauselawgroup.com -- Strause Law Group, PLLC, Randall S. Strause -- rstrause@strauselawgroup.com -- Strause Law Group, PLLC & Parker M. Wornall -- pwornall@strauselawgroup.com -- Strause Law Group, PLLC. WELLS FARGO: Murphy Appeals Ruling in Jabbari Suit to 9th Cir. -------------------------------------------------------------- Objector Mike Murphy filed an appeal from a court ruling in the lawsuit titled Shahriar Jabbari, et al. v. Wells Fargo & Company, et al., Case No. 3:15-cv-02159-VC, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, Wells Fargo will pay $142 million to settle class action claims that it secretly opened credit cards and unauthorized accounts in customers' names going back to 2002. The bank was hit hard by the discovery that its staff opened millions of bank accounts and credit cards for customers without their consent in an effort to meet internal sales goals. Lead Plaintiff Shahriar Jabbari sued Wells Fargo in May 2015, claiming it encouraged employees to use fraudulent and deceptive tactics to persuade customers to open fee-generating accounts by misrepresenting them or not informing them at all. The appellate case is captioned as Shahriar Jabbari, et al. v. Wells Fargo & Company, et al., Case No. 18-16284, 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 8, 2018; -- Transcript is due on September 7, 2018; -- Appellant Mike Murphy's opening brief is due on October 17, 2018; -- Appellees Kaylee Heffelfinger, Shahriar Jabbari, Wells Fargo & Company and Wells Fargo Bank, N.A.'s answering brief is due on November 19, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant MIKE MURPHY is represented by: Steven Bradley Scow, Esq. KOCH & SCOW, LLC 11500 S. Eastern Ave., Suite 210 Henderson, NV 89052 Telephone: (702) 318-5040 E-mail: sscow@kochscow.com Plaintiffs-Appellees SHAHRIAR JABBARI and KAYLEE HEFFELFINGER, on behalf of themselves and all others similarly situated, are represented by: Gretchen Freeman Cappio, Esq. Benjamin Gould, Esq. Derek W. Loeser, Esq. Daniel Parke Mensher, Esq. Lynn Lincoln Sarko, Esq. KELLER ROHRBACK LLP 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 E-mail: gcappio@kellerrohrback.com bgould@kellerrohrback.com dloeser@kellerrohrback.com dmensher@kellerrohrback.com lsarko@kellerrohrback.com - and - Jeffrey Greg Lewis, Esq. KELLER ROHRBACK LLP 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 463-3900 E-mail: jlewis@kellerrohrback.com - and - Matthew J. Preusch, Esq. KELLER ROHRBACK LLP 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 E-mail: mpreusch@kellerrohrback.com Defendants-Appellees WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., are represented by: Manuel Francisco Cachan, Esq. Bart H. Williams, Esq. PROSKAUER ROSE LLP 2049 Century Park East Los Angeles, CA 90067-3206 Telephone: (310) 284-4568 E-mail: manuel.cachan@mto.com bart.williams@mto.com - and - Erin J. Cox, Esq. Eric P. Tuttle, Esq. MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071 Telephone: (213) 683-9575 E-mail: erin.cox@mto.com Eric.Tuttle@mto.com - and - Jeslyn A. Everitt, Esq. David H. Fry, Esq. MUNGER TOLLES & OLSON, LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4040 E-mail: jeslyn.everitt@mto.com david.fry@mto.com WHOLE FOODS: Order for Interlocutory Appeal in "Molock" Certified ----------------------------------------------------------------- The United States District Court for the District of Columbia granted Defendant's Motion to Certify Order for Interlocutory Appeal in the case captioned MICHAEL MOLOCK, et al., Plaintiffs, v. WHOLE FOODS MARKET GROUP, INC., Defendant, CaseNo.16-cv-02483(APM)(D.D.C.). The Plaintiffs, who are current and former employees of WFMG, allege that WFMG abused the Gainsharing program on a nationwide scale by shifting labor costs to store departments that were underperforming, thus reducing or negating the bonuses that would have been owed to employees in an over-performing department. The Plaintiffs' claims arise solely under District of Columbia or state law. WFMG now urges this court to certify its March 15, 2018 order for interlocutory appeal under 28 U.S.C. Section 1292(b) to allow the D.C. Circuit to weigh in on whether the jurisdictional limits proscribed in Bristol-Myers Squibb extend to unnamed, nonresident members of a putative nationwide class in federal court. Under 28 U.S.C. Section 1292(b), the certification of an order for interlocutory appeal is appropriate when (1) the order involves a controlling question of law; (2) a substantial ground for difference of opinion concerning the ruling exists; and (3) an immediate appeal would materially advance the litigation. Here, whether Bristol-Myers Squibb applies to claims of unnamed, nationwide putative class members in a federal court is a threshold jurisdictional question. If this court's decision is correct, the court may exercise specific jurisdiction over the claims of thousands of unnamed, nonresident putative class members. On the other hand, if the court is wrong and it lacks specific jurisdiction over such claims, this court could not entertain a nationwide class action and the most Plaintiffs could seek to certify is a District of Columbia class. The difference in scope of these two scenarios need not be belabored. Quite obviously, a nationwide class action would place far greater demands on this court and the Defendant than would a case that goes forward with only a geographically limited class. For that reason, the order from which the Defendant seeks interlocutory review involves a controlling question of law. The Plaintiffs' counsel conceded that, in order to establish a class consisting of current and former WFMG employees, and presumably to determine damages, he might demand more than a decade's worth of payroll records from well over two hundred Whole Foods grocery stores operated by WFMG. Furthermore, counsel stated that it is his belief that the Gainsharing program abuse goes beyond WFMG and infects other Whole Foods operating companies. WFMG is one of multiple companies that operate Whole Foods grocery stores throughout the country. WFMG's stores are located primarily on the eastern seaboard. The Plaintiffs' counsel intends to take discovery that will show that abuse of the Gainsharing program was sanctioned at the highest corporate levels and was commonplace throughout the country. If the Plaintiffs can make such a showing, counsel explained, they intend to amend the complaint to add the other operating companies, so that the Plaintiffs can certify a true nationwide class that covers the current and former employees of every Whole Foods store in the country. See id. at 22-23. There are nearly 500 such stores. Thus, if the Plaintiffs succeed in their plan, they will ask for discovery concerning nearly 500 Whole Foods grocery stores and the thousands of people employed in those stores. The potential time and expense of obtaining such discovery is staggering. On the other hand, if the court is wrong about Bristol-Myers Squibb, this case becomes simpler and discovery far more manageable. The Plaintiffs could not certify in this district court a class of all WFMG employees, let alone a true nationwide class. At most, the Plaintiffs would be able to certify a District of Columbia class, consisting of employees who worked in the District's five Whole Foods stores operated by WFMG. In addition, if a nationwide class action cannot be brought here, the court will not face the potential of grappling with the laws of the 43 states in which Whole Foods does business. The court would rather avoid such a morass if it is in fact wrong about Bristol-Myers Squibb's application in this matter. A full-text copy of the District Court's June 11, 2018 Memorandum Opinion is available https://tinyurl.com/y7uwsft6 from Leagle.com. MICHAEL MOLOCK & RANDAL KUCZOR, Plaintiffs, represented by Christopher J. Regan -- cregan@reganfirm.com -- REGAN ZAMBRI & LONG, PLLC & Salvatore J. Zambri -- szambri@reganfirm.com -- REGAN ZAMBRI & LONG, PLLC. CARL BOWENS, JON PACE, SARAH STRICKLAND, JOSE FUENTES & CHRISTOPHER MILNER, Plaintiffs, represented by Christopher J. Regan , REGAN ZAMBRI & LONG, PLLC. WHOLE FOODS MARKET, INC., Defendant, represented by Gregory J. Casas -- casasg@gtlaw.com -- GREENBERG TRAURIG, LLP & David E. Sellinger -- sellingerd@gtlaw.com -- GREENBERG TRAURIG, LLP. WHOLE FOODS MARKET GROUP, INC., Defendant, represented by Gregory J. Casas , GREENBERG TRAURIG, LLP, David E. Sellinger , GREENBERG TRAURIG, LLP & John H. Hempfling, II , WHOLE FOODS MARKET CENTRAL OFFICE, pro hac vice. WISCONSIN: Settlement in Juvenile Inmates' Suit Has Prelim Approval ------------------------------------------------------------------- In the case, J.J., et. al., Plaintiffs, v. Jon E. Litscher, et. al., Defendants, Case No. 17-CV-47 (W.D. Wis.), Judge James D. Petersen of the U.S. District Court for the Western District of Wisconsin granted the parties' Joint Motion for Preliminary Approval of Class Action Settlement. Judge Petersen granted preliminary approval to the Proposed Settlement Agreement, finding it to be sufficiently fair, reasonable, and adequate for the purpose of such preliminary approval. He also approved the Notice to the Class. Within 10 days of the entry of the Order, the Defendants will (a) post at least one copy of the Notice to the Class and the Proposed Settlement Agreement on every bulletin board in the common areas of all housing units at the Lincoln Hills School for Boys and Copper Lake School for Girls ("LHS/CLS"); (b) hand-deliver one copy of the Notice to the Class and the Proposed Settlement Agreement to each youth housed in room confinement; (c) send by first class mail one copy of the Notice to the Class and the Proposed Settlement Agreement to the parent or legal guardian of each youth incarcerated at LHS/CLS; and d) for youth no longer in custody but who were confined at Lincoln Hills School for Boys or Copper Lake School for Girls at anytime from Sept. 18, 2017 through the present, send by first class mail one copy of the Notice to the Class and the Proposed Settlement Agreement to the last known address of both the youth and the parent/guardian. Within 15 days of the entry of the Order, the Defendants and/or their agents will prepare and submit to the Class Counsel a declaration of compliance with the provision. Objections to the Proposed Settlement Agreement must be made in writing and must be received by the Plaintiffs' counsel no later than 30 days after the entry of the Order. The Judge directed the Plaintiffs and/or the Parties to jointly submit a Motion for Final Approval of the Settlement within 45 days of the entry of the Order. The Court will hold a Fairness Hearing on Sept. 13, 2018 at 9:00 a.m. A full-text copy of the Court's June 20, 2018 Order is available at https://bit.ly/2O59Zla from Leagle.com. J. J., By and through his next friend Sakeena Jackson, K. D., By and through her next friends John Levy and Meranda Davis, C. M., By and through his next friend Toinette Ducksworth, R. N., By and through his next friend Gloria Norwood, M.S., By and through his next friend Jolene Waupekanay, A.V., By and through his next friend Veronica Rocha-Montejano, M.R., By and through his next friend Autumn Rodgers, S.K., By and through her next friend Thomas Korn, A.P., By and through her next friend Louise Plaskey, C.B., By and through his next friend and grandmother, Flossie Johnson & D.P., By and through her mother and next friend, Earnestine Perry, Plaintiffs, represented by Emily Logan Stedman, Quarles & Brady, Jessica R. Feierman -- jfeierman@jlc.org -- Juvenile Law Center, Karen U. Lindell, Juvenile Law Center, Karyn L. Rotker , ACLU of Wisconsin Foundation, Inc., Laurence J. Dupuis -- ldupuis@aclu-wi.org -- Aclu Of Wisconsin Foundation, Inc., Marsha L. Levick, Juvenile Law Center, Matthew J. Splitek -- matthew.splitek@quarles.com -- Quarles & Brady LLP, Rachel Anne Graham -- rachel.graham@quarles.com -- Quarles & Brady LLP, Asma Imtiazali Kadri, American Civil Liberties Union of Wisconsin Foundation, Katherine E. Burdick, Juvenile Law Center, R. Timothy Muth, Aclu Of Wisconsin Foundation, Inc. & Zachary T. Eastburn -- zachary.eastburn@quarles.com -- Quarles and Brady LLP. Jon E. Litscher, Secretary, Wisconsin Department of Corrections, John D. Paquin, Administrator, Juvenile Division of Corrections, WI Dept. of Corrections, Wendy A. Peterson, Superintendent, Lincoln Hills School for Boys & Copper Lake School for Girls & Brian Gustke, Director of Security, Lincoln Hills School for Boys & Copper Lake School for Girls, Defendants, represented by Benjamin Andrew Sparks , Crivello Carlson, S.C. & Samuel C. Hall, Jr. -- shall@crivellocarlson.com -- Crivello Carlson, S.C. The Milwaukee Journal Sentinel, The Wisconsin State Journal, The Associated Press, The Wisconsin Newspaper Association & The Wisconsin Freedom of Information Council, Intervenors, represented by Dustin Brett Brown -- dbrown@gklaw.com -- Godfrey & Kahn, S.C.. ZICAM LLC: Oct. 3 Class Action Settlement Claims Filing Deadline ---------------------------------------------------------------- Brittany Anas, writing for Simplemost, reports that what's worse than going to the grocery store hungry? Going to the drugstore when you've got a cold. With sniffles, a sore throat and popping ears, you bring home a haul of pricey cold medicines -- and it adds insult to injury (err, cold) when those pills and syrups don't actually deliver on their promises of fast relief. Nodding your head in agreement? You could be eligible for up to $57.65 if you've purchased some of Zicam's popular cold relief products in the last seven years -- even if you don't have receipts to prove it. According to a class-action lawsuit, Zicam has made false and misleading claims about the effectiveness of some of its products. Zicam, though, denies the claims. To be eligible, you need to live in the United States and have purchased the following Zicam products between Feb. 15, 2011, to June 5, 2018: RapidMelts Ultra, Oral Mist, Ultra Crystals, Liqui-Lozenges, Lozenges Ultra, Soft Chews, Medicated Fruit Drops and Chewables. The form, which can be filed online or sent by mail, will ask you to note how many of the products you purchased and the location of your purchases. The payments will be made out of a $16 million settlement fund. The RapidMelts Original product is valued at $11.53, so if you purchased five of those, you could be eligible for $57.65. However, your payment will be adjusted based on the number of claims that are submitted, potentially increasing or decreasing the amount you receive. If you purchased six or more of the Zicam products covered in the settlement, and you do happen to have your receipts or proof or purchase (like packaging), you can submit that documentation for additional reimbursement. The deadline to file a claim is Oct. 3, 2018. Oh, and if you're looking for some tips for how to beat a cold here are the secrets of people who never get sick, how doctors and nurses fend off colds and flu viruses and the foods nutritionists eat when they get sick. [GN] ZIMMER BIOMET: Underpays Sales Associate, Karl Suit Alleges ----------------------------------------------------------- JAMES KARL, individually and on behalf of all others similarly situated, Plaintiff v. ZIMMER BIOMET HOLDINGS, INC.; ZIMMER US, INC.; BIOMET U.S. RECONSTRUCTION, LLC; BIOMET BIOLOGICS, LLC; and BIOMET, INC., Defendants, Case No. 3:18-cv-04176-JCS (N.D. Cal., July 12, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Karl was employed by the Defendants as sales associate. Zimmer Biomet Holdings, Inc., together with its subsidiaries, designs, manufactures, and markets musculoskeletal healthcare products and solutions in the Americas, Europe, the Middle East, Africa, and the Asia Pacific. The company was formerly known as Zimmer Holdings, Inc. and changed its name to Zimmer Biomet Holdings, Inc. in June 2015. Zimmer Biomet Holdings, Inc. was founded in 1927 and is headquartered in Warsaw, Indiana. [BN] The Plaintiff is represented by: Jason Lohr, Esq. Alec Segarich, Esq. LOHR RIPAMONTI & SEGARICH LLP 140 Geary Street, 4th Fl. San Francisco, CA 94108 Telephone: (415) 683-7266 Facsimile: (415) 683-7267 E-mail: jason.lohr@lrllp.com alec.segarich@lrllp.com - and – Denis Kenny, Esq. SCHERER SMITH & KENNY LLP 140 Geary Street, 7th Fl. San Francisco, CA 94108 Telephone: (415) 433-1099 Facsimile: (415) 433-9434 E-mail: denis@sfcounsel.com [*] Ballard Spahr Attorneys Discuss FDCPA Class Action ------------------------------------------------------ Daniel C. Fanaselle, Esq. -- fanaselled@ballardspahr.com -- and Joel A. Tasca, Esq. -- tasca@ballardspahr.com -- of Ballard Spahr LLP, in an article for National Review, wrote that in a recent decision, a federal court in the Southern District of New York (SDNY) dismissed a putative class action complaint alleging, among other things, that a mortgage servicer violated the Fair Debt Collection Practices Act (FDCPA) by charging improper property inspection fees after the mortgagors defaulted on their mortgage loans. The plaintiffs claimed that the charges were "excessive," "[un]reasonable," and "[in]appropriate," and alleged that they were frequently assessed when property inspections had not been conducted. Thus, the plaintiffs argued that the servicer "knowingly misrepresented" the charges as "lawful," "reasonable," "legitimate," and "proper," when it "knew that the inspections were not necessary to maintain or protect the properties." While the court found that the defendant was not a "debt collector," it held that the claim would fail even if the servicer were subject to the FDCPA because the terms of the mortgage agreements expressly permitted the lender to charge property inspection fees in the event of a default. Therefore, the servicer could only be found liable if the FDCPA imposed a duty to disclose "that the fees were not reasonable and Plaintiffs were therefore not obligated to pay." The court held that the FDCPA imposes no such duty, and found persuasive the reasoning in another recent decision from the SDNY, which addressed the same argument (that the defendant "fail[ed] to disclose that the assessed [property inspection] fees were unnecessary") in the context of a civil RICO claim. In that case, the court found that the plaintiff was unable to satisfy RICO's misrepresentation requirement because, as with the recent case, the underlying mortgage agreement "explicitly authorize[d] property inspections." Accordingly, the claim was governed by the terms of the mortgage and plaintiff's dispute of those terms – and if meritorious, the defendant's "failure to 'concede breach of contract liability'" -- did not "create additional causes of action." Applying this reasoning, the court concluded that the defendant did not make any false or misleading statements regarding the property inspection fees, because it "label[ed] them for what they were" -- and the plaintiffs' belief that the fees were excessive or unreasonable -- even if justified -- did not render them actionable under the FDCPA. The court's findings (while largely dicta) are notable because, despite numerous recent appellate court decisions involving post-default fees, few courts have specifically addressed "whether charging mortgagors for allegedly unreasonable . . . fees in the event of default . . . amounts to an FDCPA violation." By affirming that that the terms of the mortgage control, the court clarified that mortgage servicers (even if they qualify as "debt collectors") do not run afoul of the FDCPA by assessing default-related fees and costs that are permitted under the terms of the mortgage -- even if the consumer finds them to be "excessive" or "unreasonable." Notably, however, the court left open the possibility of a viable FDCPA claim based on "concealed or inflated" property inspection fees. And while the distinction between "excessive" and "inflated" fees may be debatable, the latter term seems (at least under this court's reasoning) to suggests an element of scienter or willfulness on the part of the servicer. This comports with the court's reference to the standard applied under RICO and suggests the fee assessed by the servicer must misrepresent -- rather than merely misapply -- the terms of the mortgage. [GN] [*] US-Style Class Action Procedure on the Cards for Scotland ------------------------------------------------------------- The Scotsman reports that a new American-style class action procedure is on the cards for Scotland following the passing of the Civil Litigation (Expenses and Group Proceedings)(Scotland) Act 2018 by MSPs in May. The Act means that financial institutions and businesses may be exposed to large collective legal claims in future rather than just claims by individual litigants. A class action is a legal procedure enabling a group or class of people with related legal claims to bring their claim to court together in one action. Class action litigation has been a feature of the American legal system for some time with damages, in some prominent cases, running to billions of dollars. In Scotland however, historically there's been no class action procedure. Instead, the normal approach is for related cases to be sisted (otherwise known as paused) whilst an individual "test case" proceeds. Alternatively, the court issues bespoke orders in cases with similar facts to control how they progress. These approaches however can be problematic. Firstly, a suitable case requires to be selected from the actions raised as the test case. Secondly, parties to related cases need to decide whether to negotiate a settlement on the basis of the judgment in the test case or proceed independently in light of that decision. The uncertain approach of the court and the potential for repeat legal costs has led to claims of this nature being relatively few in number in Scotland. In introducing a special class action procedure -- referred to as "group procedure" in the legislation -- the Act is likely to bring about an increase in future "mass" litigation. Such actions will become more feasible financially under the new rules as legal costs will be spread across the group of litigants rather than borne by an individual. In terms of the new procedure itself the detailed rules as to how it will operate will be developed by the Scottish Civil Justice Council over the coming months. However, the Act sets out the parameters within which these rules will work. The new group procedure will only be available in the Court of Session, and therefore for claims in excess of GBP100,000, and there must be a minimum of two claimants. The permission of the court will be required in order to bring the group action. Permission will only be granted if the claims made raise issues of fact or law which are "the same as, similar or related to each other". "All reasonable efforts" will also need to be made to notify potential claimants within the specified class. Guidance from the court will be required as to what these concepts are to mean in practice. Finally, the legislation does not limit the type of claim that can be made in group proceedings. Commonly such claims relate to product liability, shareholder and financial services disputes, large-scale accidents and employee rights, although it's possible that the final court rules may restrict these categories. One important preliminary question which is not addressed in the Act, and which will require to be considered by the Scottish Civil Justice Council, is whether the new procedure is to be "opt-in" or "opt-out" or a hybrid regime. An "opt-in" procedure would allow individual litigants to keep their claims separate from the class unless they opt-in to the group action. On the other hand an "opt-out" approach would require any claimant who doesn't wish to be bound by the decision of the group action to positively opt-out and take their own action. Nevertheless, whilst with the opt-in regime the claimant numbers will be clear, the size of the potential claimant group in an opt-out approach may not. For that reason large defenders are likely to prefer an opt-in approach as it should make negotiating settlement of such claims, if necessary, much easier. We'll need to wait until the new rules are published to assess the full impact of the new procedure on business in Scotland. However there's no doubt that in whatever their final form the group proceedings rules will have a significant bearing on how mass claims are litigated in future. Financial institutions and large companies in Scotland should monitor these developments very closely. [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 ***