/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180821.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 21, 2018, Vol. 20, No. 167 Headlines ABM AVIATION: Petitt Seeks Overtime Pay under Labor Code ACCOUNT CONTROL: Wants to Collect Time Barred Debt, Loveday Says ACOSTA INC: Court Grants Arbitration of Individual Labor Claims ADVENTIST HEALTH: Court Narrows Claims in D. Sheedy's ERISA Suit AIR EVAC: T. Chanze's Suit Remains in Federal Court AJ THAI INC: Fails to Properly Pay Workers, Srimaharaja Says ALERE HOME: Sandusky Wellness Center Sues over Unsolicited Fax ALIBABA GROUP: Discovery Ongoing in Federal Securities Suit ALLEGIANT AIR: Basiliali Asks Court to Certify Class & Subclasses ALTICE USA: Rosen Law Firm Probes Securities Claims AMERICOLLECT INC: Faces Mezzo Suit in District of New Jersey AMYRIS INC: Court Dismisses Amended Derivative Shareholders' Suit ANALOGIC CORPORATION: Faces Burcaw Suit over Altaris Merger ARCHDIOCESE OF LOS ANGELES: Fails to Pay OT, Perez Suit Alleges AUSTRALIA: Class Action Mulled Over White Spot Outbreak AUTOZONE STORES: Court Won't Amend Denial of Class Certification BANK OF AMERICA: Nov. 8 ISDAfix Instrument Settlement Hearing Set BANK OF AMERICA: Ricciardi Suit Seeks to Recover OT Pay BAR 20: Time to File Supplemental Brief in J. Maciel's Suit Tolled BAVARIA HAUS: Rodriguez Seeks Overtime Wages under FLSA BILLINGS, TN: Faces Class Action Over Illegal Sales Tax BMW OF NORTH AMERICA: Faces Ballou Suit in D. New Jersey BRIGHT HORIZONS: Faces Delacruz Suit in S.D. New York BRIGHT HOUSE: Stephan Sliwa Seeks to Certify Two Classes BRISTOL BAY: Underpays Role-Players, Abikar Suit Alleges CALIFORNIA FIELD: Court Approves $15.4MM Class Settlement CAPE CLOGS: Faces Crosson Suit in Eastern District of New York CARHARTT INC: Accused by Nevitt Suit of Not Paying Overtime Wages CARING PROFESSIONALS: Can't Compel Arbitration in HHCs' Suit CAVALRY PORTFOLIO: Court Stays K. Krejci's TCPA Action CENTURYLINK INC: Gainey McKenna Files Derivative Action CHC GROUP: $586K Attorney's Fees Awarded in Securities Fraud Suit CHICAGO ATHLETICS: Sued Over Members' Rewards Program Termination CIVEO CORP: Philip Suhr Class Action Dismissed CLACKAMAS COUNTY, OR: Court Narrows Claims in Strip Search Suit CLIENT SERVICES: Faces Kirilova Suit in Eastern Dist. of New York COLLECTION ANALYST: Class Settlement Has Prelim Approval COLUMBIA PIPELINE: Arbitrage Fund Suit Moved to S.D. New York CONNORS & FONG: Faces Crosson Suit in Eastern Dist. of New York CONSTAR FINANCIAL: Faces Stehly Suit in Eastern Dist. of New York COTIVITI HOLDINGS: Faces Shareholder Class Action in Delaware CP OPCO: Asks Court to Deny Class Certification in McDonald Suit CUPERTINO HEALTHCARE: Faces Class Action Over Understaffing CVS PHARMACY: Deadline to Respond to Calif. Suit Extended CWI INC: Landers Seeks to Recover Wages and Damages Under FLSA DANSKO LLC: Faces Bunting Suit in Eastern District of New York DAYLIGHT TRANSPORT: Misclassified Delivery Drivers, Ali Suit Says DEL TACO: Discovery Ongoing in Former Employee's Class Suit DESCHUTES COUNTY, OR: Sheriff's Office Faces Discrimination Case DEUTSCHE BANK: Oct. 25 Libor Settlement Fairness Hearing Set DGS CONSTRUCTION: Two Classes in Unpaid Wage Suit Certified DOCTOR DIRECTORY: Denial of Bid to Remand TCPA Suit Vacated EL PASO, TX: Tex. App. Affirms Dismissal of Jury Summons Suit EL POLLO: Workers' Lawsuit Can Proceed as Class Action ENHANCED RECOVERY: Knutson Sues over Debt Collection Practices ENTERPRISE BANK: Underpays Mortgage Loan Officers, Heard Alleges ERNST & YOUNG: Burns & Levinson Attorneys Discuss SCOTUS Ruling ESURANCE PROPERTY: Bettor Suit Moved to Southern Dist. of Florida EVERSOURCE ENERGY: Inflates Natural Gas Prices, PNE Claims FACEBOOK INC: UK Advocacy Group Prepares Cambridge Analytica Case FBCS INC: Goldson Seeks Relief for S.C. Consumers Under FDCPA FINANCIAL RECOVERIES: Faces Singer Suit in District of New Jersey FRIENDFINDER NETWORKS: Gutierrez Sues over Data Breach GC SERVICES: Faces Karp Suit in Eastern District of New York GC SERVICES: Faces Moskovits Suit in District of New Jersey GC SERVICES: Kacinski Suit in Eastern District of New York GDS HOLDINGS: Faces Ramzan Suit Over Misleading Statements GENERAL CABLE: Court Dismisses L. Eley's ERISA Suit GENKI SUSHI: Over 50,000 People Could Be Entitled to Money GRAND ISLE SHIPYARD: Sandlin Seeks Overtime Pay GRANDISON MANAGEMENT: Physical Therapist Files Wage-and-Hour Suit HAKIMIAN MANAGEMENT: Faces Fischler Suit in S.D. New York HENRY LIMOUSINE: Court Approves $260K Class Settlement HILTON GRAND: Court Grants Prelim Approval of Class Settlement HOME INSTEAD: Faces Delacruz Suit in Southern Dist. of New York HOUSTON, TX: Judge Dismisses Lawsuit Over Rape Kit Backlog IBILEY UNIFORM: Pineda Sues Over Marketing Text Messages IMPERIAL J & Y: Fails to Pay OT Wages, Herrera-Cautle Suit Says INNERWORKINGS INC: Faces "Brown" Securities Class Action Suit INTERNATIONAL HAIR: Faces Doucet Suit in S.D. California INVENTION SUBMISSION: Calhoun Suit Transferred to W.D. Pa. JC WASHINGTON: Fails to Pay Wages to Delivery Driver, Bavaro Says JFK MEDICAL: Mendez et al. Seek to Certify Two Classes JUDICIAL CORRECTION: Removes Eaton Suit to N.D. Alabama KAHALA HOTEL: Judgment in J. Kawakami's Suit Vacated KESEF LLC: Fails to Pay Minimum Wages, Bonhomme Suit Alleges KOCH FOODS: Court Denies Agri Stats' Bid for Protective Order KONICA MINOLTA: Faces Randolph Suit in Sacramento, California L3 TECHNOLOGIES: Underpays Mechanics, Thomas Suit Alleges LOUISIANA: Court Stays Discovery in Drug Court Program Suit LUNG INSTITUTE: Stem Cell Treatment Suit Remanded to State Court LUXOTTICA RETAIL: Calif. Court Dismisses Unfair Competition Suit MAGIC LAUNDRY: Fails to Pay Proper Wages, Juarez Suit Alleges MANUFACTURERS AND TRADERS: D. Franklin Suit Remains in Dist. Court MATSUYA QUALITY: Summary Judgment Bid in FLSA Suit Denied MATTHEWS DINER: Uribe Suit Moved to District of New Jersey MCDONALD'S: Gave Away $15MM to Customers Following Settlement MDL 2545: Court Denies Certification of Nation-wide Class of TPPs MENTOR CORP: Court Allows Amendment in Urbieta Couple's Suit MERCANTILE ADJUSTMENT: Faces Goodman Suit in E.D. New York MERCEDES-BENZ USA: Faces Dumond Suit over Defective Sunroofs MIDWEST SUPPLY: Smith Seeks Certification of Collective Action MOVIEPASS: Users Threaten Class Action After Series of Problems NEVCO CONTRACTING: Underpays Construction Laborers, Contreras Says NEW JERSEY: Court Dismisses Federal Claims in IDEA Suit NEW YORK UNIVERSITY: Averts Workers' ERISA Class Action NEW YORK: Homeowners to File Suit Over Build It Back Program NEW ZEALAND: Ex-Bella Vista Residents Sue Tauranga City Council NFL: Concussion Lawsuit Looms in Australia NY HEALTH DEPARTMENT: Court Narrows Claims in Samele et al. Case OHIO: Burger King Stunt Highlights "Pink Tax" Bill Issue PACIFIC ENERGY: Court Dismisses A. Nelson's FAC in EFTA Suit PICK-A-PART AUTO: Court Approves $195K Class Settlement PROGRESSIVE SELECT: Lopez Suit Moved to Southern Dist. of Florida PROVIDENCE HEALTH: Underpays Patient Sitter, Mamuyac Alleges PROVIDENT SAVINGS: Court OKs FLSA Portion of $1.7MM Settlement QUALITY SYSTEMS: Nov. 19 Settlement Fairness Hearing Set RF FISHER: Court Grants Prelim Approval of FLSA Settlement ROANOKE, VA: Court Conditionally Certifies Collective Action ROCKWELL MEDICAL: Faces Securities Fraud Class Action ROSICKI ROSICKI: Dismissal of A. Cohen's FDCPA Suit Affirmed RSKM LLC: Corr Sues over Debt Collection Practices RUSHMORE LOAN: Wortman Alleges Wrongful Debt Collections SAIC INC: Awaits Court Approval of Securities Case Settlement SCANIA: RHA Sees Progress in Cartel Class Action SECURUS TECHNOLOGIES: Classes in ICS Suit Decertified SHILOH TREATMENT: Judge Orders Removal of Migrant Children SKIPTHEDISHES: Drivers File Misclassification Class Action SOLSTICE BENEFIT: Sends Unsolicited Fax Messages, Zauderer Claims STEAK 'N SHAKE: 3rd. Cir. Flips Certification of Class in ADA Suit STRACENER BROTHERS: Underpays Construction Workers, Brown Claims STUCKY LAUER: Burton Sues over Debt Collection Practices SUNRUN INC: Underpays Sales Representatives, Dart Suit Alleges SWITCH INC: Mingbo Cai Suit Transferred to District of Nevada SYNCHRONY FINANCIAL: Still Defends Cambell, Neal & Mott TCPA Suits T&R MARKET: Judge Approves $1MM Class Action Settlement TARGET CORP: Stops Selling Popular Potty Trainers TATA CONSULTANCY: Court Grants Arbitration of Class Claims TLC CASINO: Court Dismisses V. Williams's FCRA Suit TRES AMIGOS: Flynn et al. Seek to Certify Hourly Servers Class TRIANGLE CAPITAL: Court Denies Prelim Injunction in Securities Suit UFC: Antitrust Class Action Moves Into Summary Judgment Stage UNITED AIRLINES: Judge Tosses Employees' Biometrics Class Action UNITED STATES: NY Ct. Transfers Separation Suit to Calif. UNITED STATES: UPS Retired Employees File Class Action UNITEDHEALTH GROUP: Trujillo et al. Seek to Certify Class US PHYSICAL: Court Dismisses S. Reilly's Securities Fraud Suit VALLEY GYM CORPORATION: Has Made Unsolicited Calls, Suit Claims VEECO INSTRUMENTS: Pension Fund Balks at Ultratech Merger Deal VISA INC: Deal Reached to Resolve Damages Class in Interchange MDL WAL-MART STORES: 9th Cir. Vacates Dismissal of M. Omidi's UCL Suit WARTBURG SENIOR: Website Not Accessible to Blind, Sypert Says WASTE INDUSTRIES: Fails to Pay OT to Drivers, Bruce Claims WELLS FARGO: Judge Refuses to Vacate Arbitrator's Findings WESTERN EXPRESS: Rivera Suit Moved to Central Dist. of California WILLIAM SONOMA: Faces Rushing Suit in N.D. California WINNIPEG BALLET: Faces Class Action Over Monk Abuse Allegations ZUFFA LLC: Seeks Dismissal of UFC Fighters' Antitrust Case [*] U.K. Truckers' Trade Association Files Cartel Class Action ********* ABM AVIATION: Petitt Seeks Overtime Pay under Labor Code -------------------------------------------------------- LAURA PETITT, an individual, on behalf of herself and others similarly situated, the Plaintiff, v. ABM AVIATION, INC.; and DOES 1 thru 50, inclusive, the Defendants, Case No. BC717464 (Cal. Super. Ct., Aug. 10, 2018), alleges that Defendant has had a consistent policy of failing to pay wages and/or overtime to all Aggrieved Employees when they work more than eight hours in a day or 40 hours in a week. According to the complaint, the Plaintiff and other Aggrieved Employees were not properly compensated for wages and overtime because Defendant required work to be performed off the clock; failed to pay for compensable activities, including waiting for and riding a mandatory shuttle to and from the time clock facility; altered timesheets to make it appear that employees worked less than they actually did, and issued paychecks that compensated for less than the total hours worked. The Defendant offers an array of services such as cargo, cleaning, ground transportation, passenger services, ramp handling, security, and outsource business solution.[BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. Liane Katzenstein Ly, Esq. Ari J. Stiller, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: eric@kingsleykingsley.com liane@kingsleykingsley.com ari@kingsleykingsley.com ACCOUNT CONTROL: Wants to Collect Time Barred Debt, Loveday Says ---------------------------------------------------------------- MELISSA LOVEDAY, individually and on behalf of a class of similarly situated persons v. ACCOUNT CONTROL TECHNOLOGY, INC., and DOE-1, Case No. 2:18-cv-12405-AJT-APP (E.D. Mich., August 2, 2018), accuses the Defendants of violating the Fair Debt Collection Practices Act, and mirror state law, in attempting to collect a time barred debt, using a form letter, without informing the debtor that s/he cannot be sued on the debt because of the age of the debt. ACT is a corporation incorporated under the laws of California, and is registered in the state of Michigan as a Collection Agency, License Number 2401001957. The name of the Doe Defendant is currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Curtis C. Warner, Esq. WARNER LAW FIRM, LLC 350 S. Northwest HWY., Suite 300 Park Ridge, IL 60068 Telephone: (847) 701-5290 (TEL) E-mail: cwarner@warner.legal - and - John A. Evancek, Esq. KELLEY & EVANCHECK PC 43695 Michigan Ave. Canton, MI 48188 Telephone: (734) 397-4540 E-mail: john@kelawpc.com ACOSTA INC: Court Grants Arbitration of Individual Labor Claims --------------------------------------------------------------- The United States District Court for the Northern District of California granted Defendant's Motion to Compel Arbitration in the case captioned RUDY TREVINO, Plaintiff, v. ACOSTA, INC., et al., Defendants, Case No. 17-cv-06529 NC (N.D. Cal.). Defendants Acosta, Inc., Mosaic Parent Holdings, Inc., and Mosaic Sales Solutions US Operating Co., LLC, move to compel plaintiff Rudy Trevino to arbitrate his California Labor Code claims, and do so as an individual. Trevino is a former employee of Mosaic. Trevino alleges that, during his employment, he and all similarly situated employees experienced violations of the California Labor Code, perpetrated by Mosaic. Under the Federal Arbitration Act (FAA), a contract which evidences intent to settle a controversy by arbitration is valid, irrevocable, and enforceable unless it can be revoked on such grounds as exist in law for the revocation of any contract. Trevino argues that the arbitration agreement fails because: (1) agreements to waive class status are illegal; (2) there was no mutual assent; and regardless, (3) it is invalid based on the doctrine of unconscionability. The Waiver of Class Status Is Not Illegal. First, Trevino argues that the arbitration agreement is illegal because it contains a waiver of class status which violates the National Labor Relations Act (NLRA). Trevino's first argument that the agreement violates the NLRA was decided by Epic Systems Corp. In Epic Systems Corp., as here, the central issue was an arbitration agreement that included a waiver of class status, and plaintiffs raised the same violation of the NLRA as a reason to invalidate the arbitration agreement. The Supreme Court concluded that the NLRA did not override the FAA's mandate to enforce arbitration agreements as written because Congress did not manifest a clear intention to displace the FAA, and thus, the Court should interpret the two statutes to work in harmony. With this in mind, the Court ruled that a class action lawsuit is not a concerted activity as envisioned by the NLRA and that waivers of class status should be enforced per the FAA. Thus, Trevino's first argument fails. Trevino's second argument, that the illusory opt-out clause renders the waiver of class status illegal is equally untenable under Epic Systems Corp. In Epic Systems Corp., the Court explained that defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue are invalid. Specifically, the Court said that an objection to proceedings because they require individualized arbitration proceedings instead of class or collective ones is invalid. Here, Trevino is arguing that by law, a waiver of class status requires a clear opt-out provision. His argument is invalid because it is applicable only to arbitration clauses that contain waivers of class status and is thus specifically prohibited by Epic Systems Corp. In any event, the Court finds that the language of the opt-out provision was clear. Thus, Trevino's second argument fails. The Arbitration Agreement Is Valid Next, Trevino argues that the arbitration agreement is unenforceable for lack of mutual assent because: (1) Mosaic's evidence is inadmissible; and (2) Mosaic fails to establish that a valid arbitration agreement exists. Admissible Evidence Trevino requests that the Court strike (i) the supplemental declaration of Ava Miner and (ii) the arbitration agreement. The Supplemental Declaration of Ava Miner is Admitted. First, the Court considers Trevino's objection to the supplemental declaration of Ava Miner. Trevino argues that the Court should strike the declaration because it is new evidence. In Tovar, plaintiff introduced new statistics to support her claim in a reply brief, on appeal. Tovar, 3 F.3d at 1273 n.3. The Ninth Circuit struck the evidence it considered new" because it was outside of the record compiled by the district court. Here, the case is not on appeal and thus, Tovar is not applicable. Therefore, the Court declines to strike the supplemental declaration of Ava Miner or Mosaic's reply brief. The Arbitration Agreement Is Not Inadmissible as Hearsay Next the Court considers Trevino's argument that the arbitration agreement, Exhibit C to Mosaic's motion to compel, should be excluded as hearsay because it fails to meet the requirements of the business records exception. The business record exception allows hearsay to be admitted as evidence if: (1) it was regular business practice to make that record; (2) it was kept in the regular course of business; (3) it was made by a person with knowledge; and (4) it was made at or near the time the event recorded. As to the first two requirements, Miner declared that the agreement was made by and kept on the onboarding system, Taleo, in the regular course of business. Trevino does not challenge this. On the third requirement, Trevino argues that Miner's declarations establish that she is not 'a person with knowledge. The Court can only guess Trevino is referring to alleged inconsistencies in Miner's declaration; in particular, Trevino mentions that Miner listed items that would appear on a letter offer to Trevino, but none of them appeared in the email offer. Therefore, the Court finds no reason to find that Miner is not a person with knowledge. On the fourth requirement, Trevino argues that there is no indication that the arbitration agreement was made at or near the time Trevino signed the document. Trevino cites no authority to support his argument. Furthermore, the Court notes that other courts have found electronically signed arbitration agreements admissible as evidence. Therefore, the Court concludes that Exhibit C is admissible. A Valid Arbitration Agreement Exists Next, Trevino argues: (i) that the evidence does not authenticate the signed arbitration agreement and (ii) that Trevino did not understand what the arbitration agreement meant. The Arbitration Agreement Is Authenticated Trevino points to the fact that the arbitration agreement does not have his physical signature on it and merely contains six asterisks on the signature line. In Tagliabue, the court explained that the plaintiff's argument that the arbitration agreement was unenforceable because it did not contain his physical signature lacked merit. Tagliabue,2015 WL 8780577, at *3. Here, similar to Tagliabue, the Court finds the declarations of Ava Miner, the onboarding manager, sufficient to prove that Trevino electronically signed the arbitration agreement because like in Tagliabue, the declarations prove that signing the arbitration agreement was required of all new employees like Trevino. By Trevino's own declaration, he was hired, he completed the onboarding process, and typed his last name more than once in order to acknowledge one thing or another. Like in Tagliabue, the argument that his physical signature does not appear on the document is without merit. Yet, the Court recognizes the fact that the arbitration agreement contains only asterisks and that Trevino's name is not written anywhere on the arbitration agreement. However, in Tagliabue,the court did not consider what the non-physical signature looked like in order to determine if the agreement was authenticated; there was no discussion of whether the computer generated signature appeared to be the plaintiff's name. Instead, as already noted, the court looked only to the declarations of the human resource managers to verify that completing the onboarding process required a signature on the arbitration agreement and that the plaintiff completed the onboarding process. The defendant's declarations established both points. Therefore, the court inferred that the arbitration agreement was signed by the plaintiff. Here, the asterisks look nothing like Trevino; however, the declarations of Miner are evidence that the agreement was electronically signed by Trevino because Miner declared that completing the onboarding process required a signature on the arbitration agreement and that Trevino completed the onboarding process. The Court also notes that Mosaic's burden is only to prove by a preponderance of the evidence that Trevino signed the agreement; the asterisks cast some doubt, but the evidence proves, more likely than not, that Trevino signed the agreement. As Trevino provides no evidence to contradict Mosaic's, other than Trevino's declaration that he did not remember everything he signed, the Court finds by a preponderance of evidence that Trevino signed the arbitration agreement. Trevino's Lack of Understanding Does Not Invalidate the Agreement The Court is unpersuaded by Trevino's argument that his lack of understanding is grounds to invalidate the agreement because the agreement is clearly labeled with ARBITRATION AGREEMENT at the top of the page and does not appear to be concealed in any way from Trevino before he had to sign it. Furthermore, the Court cannot invalidate the terms of the signed arbitration agreement merely because Trevino did not understand the agreement or chose not to read it; such a ruling would undermine the liberal policy favoring arbitration agreements" by allowing any party to claim a failure of mutual assent when forced to arbitrate against their will. Trevino's subjective intentions are simply not enough because the Court finds that the reasonable meaning of Trevino's electronic signature was a manifestation of assent to the terms of the arbitration agreement. Therefore, the Court concludes that a valid arbitration agreement exists. The Arbitration Agreement Is Not Unconscionable. Procedural Unconscionability Trevino argues that the agreement is procedurally unconscionable because: (i) Trevino was not provided with the American Arbitration Association (AAA) rules for arbitration procedures, (ii) the parties had unequal bargaining power, and (iii) the opt-out provision was not set apart in different sized text. American Arbitration Association (AAA) Rules The Court acknowledges cases cited by Trevino (in particular Carlson v. Home Team Pest Def., Inc., 239 Cal.App.4th 619, 632-633 (2015); Carmona, 226 Cal. App. 4th at 84-85) that have found the failure to provide arbitration rules is procedurally unconscionable. However, the court notes that in Carlson and Carmona, the arbitration agreements did not contain instructions on how to obtain the arbitration rules, much less a hyperlink to view them online. The Court finds Mosaic's efforts to provide Trevino with the AAA rules are sufficient such that if Trevino had wanted to look at the rules before signing the agreement, he could have. Therefore, the failure to explicitly provide the AAA rules does not establish procedural unconscionability. Opt-Out Provision Trevino argues that the waiver of class status opt-out provision was procedurally unconscionable because it was on the very last page and not set apart in different sized text. Trevino cites no authority for this proposition. Accordingly, the Court finds that Trevino's argument lacks merit. Unequal Bargaining Power Trevino also argues that because he was provided with the arbitration agreement on a take-it-or leave-it basis, he was not afforded the opportunity to negotiate, and that establishes procedural unconscionability. The Court finds that the failure to provide the AAA rules and the placement of the opt-out provision do not establish procedural unconscionability. However, the take-it-or-leave-it nature of the agreement establishes some degree of procedural unconscionability. With that in mind, the Court proceeds to consider if the agreement was substantively unconscionable. Substantive Unconscionability MoTrevino argues that the arbitration agreement is substantively unconscionable because it: (i) lacks a modicum of bilaterality and (ii) improperly limits his right to conduct discovery.dicum of Bilaterality First, the Court finds that the agreement is sufficiently bilateral because it requires both parties to arbitrate employment disputes and is thus distinguishable from Armendariz. In Armendariz,the California Supreme Court held that an arbitration agreement was unconscionable if it required the employee to arbitrate his claims but exempted the employer from arbitrating his claims, thus lacking a modicum of bilaterality. Armendariz, 24 Cal. 4th at 120. Here, however, the arbitration agreement explicitly states: the mutual obligations by the Company and Associate to arbitrate disputes provide consideration for this Agreement. Furthermore, the agreement does not go on to define claims which would not mutually require arbitration. Thus, the Court finds that the agreement is sufficiently bilateral. Discovery Limitations Finally, Trevino challenges the availability of discovery in the agreement because it incorporates the AAA rules for discovery and those rules do not provide adequate discovery. The Court finds the discovery provisions in the AAA rules are not unconscionable because other courts have found that the AAA rules for discovery provide parties with a sufficient opportunity for discovery. Thus, the arbitration agreement is not substantively unconscionable. Therefore, despite there being some degree of procedural unconscionability, the arbitration agreement is not unconscionable and must be enforced. Therefore, Mosaic's motion to compel arbitration is granted and Trevino is required to arbitrate his claims against Mosaic as an individual. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/y9oxshd4 from Leagle.com. Rudy Trevino, Plaintiff, represented by Bernard James Fitzpatrick , Fitzpatrick & Swanston, Charles Swanston, Fitzpatrick & Swanston, Larry W. Lee -- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Kristen Michelle Agnew -- kagnew@diversitylaw.com -- Diversity Law Group, APC, Kwanporn Tulyathan, Diversity Law Group & Nicholas Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group. Acosta, Inc., Mosaic Parent Holdings, Inc. & Mosaic Sales Solutions US Operating Co., LLC, Defendants, represented by John A. Van Hook -- jvanhook@mcguirewoods.com -- McGuire, Woods, LLP, John Arthur Van Hook -- jvanhook@mcguirewoods.com -- McGuire Woods LLP & Michael David Mandel -- mmandel@mcguirewoods.com -- McGuireWoods LLP. ADVENTIST HEALTH: Court Narrows Claims in D. Sheedy's ERISA Suit ---------------------------------------------------------------- The United States District Court for the Middle District of Florida, Orlando Division, granted in part and denied in part Defendant's Motion to Dismiss the case captioned DONNA SHEEDY, Plaintiff, v. ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATION, ADVENTIST RETIREMENT BOARD, ADVENTIST RETIREMENT PLAN ADMINISTRATIVE COMMITTEE and ADVENTIST HEALTH SYSTEM BENEFITS ADMINISTRATION COMMITTEE, Defendants, Case No. 6:16-cv-1893-Orl-31GJK (M.D. Fla.). The Plaintiff, Donna Sheedy, has filed suit against Adventist Health Systems1 (AHS) and various affiliated entities (Defendants). Her Amended Complaint asserts fifteen claims: eleven claims based on the Employee Retirement Income Security Act (ERISA), one constitutional claim, and three state law claims. These claims involve two distinct defined-benefit pension plans associated with AHS: the Hospital Plan and the Merged Plan. The Church Plan Exemption ERISA generally applies to any employee benefit plan, if it is established or maintained by an employer or employee organization engaged in commerce or in any industry or activity affecting commerce. However, ERISA contains an exemption for church plans. Church plans are plans established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of Title 26. 29 U.S.C. Section 1002(33)(A). The Plaintiff alleges both plans are maintained by AHS, and that the principal purpose of AHS is to provide healthcare services. The Defendants claim that the "Plaintiff is wrong as a matter of law that AHS maintains either of the Plans. However, whether an entity maintains a pension plan is a fact-intensive inquiry, and it cannot be said at this point that AHS does or does not maintain the Plans as a matter of law. All of the Plaintiff's factual allegations are taken as true at this stage, and the Plaintiff has plausibly alleged that AHS is the entity that maintains the Plans. Whether a different entity -- such as one of the administrating organizations named by the Defendants -- in fact maintains the Plans is a question that cannot be resolved at this early stage. Because the Plaintiff has plausibly alleged that the Plans do not meet the first element of the Church Plan definition, the Court need not address the remaining elements. The Plaintiff's Standing The Defendants first contend that the Plaintiff has failed to establish standing for her claims of insufficient funding. To have standing under Article III of the Constitution, a plaintiff must satisfy three elements: First, the plaintiff must have suffered an injury in fact an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical. Allegations of future injury can establish standing if the threat of injury is certainly impending or if there exists a substantial risk' that harm will occur. Second, there must be a causal connection between the injury and the conduct complained of; that is, the injury must be fairly traceable to the challenged action of the defendant rather than the result of independent action of a third party. The Defendants state that any risk of receiving pension payments lower than those proposed is speculative and does not constitute a concrete, particularized, actual, or imminent injury. Here, the Plaintiff alleges that she faces a future injury, stating that, as a result of the underfunding, she faces substantial risk of her pension being lost or severely reduced. Hospital Plan According to the December 31, 2016 Audited Consolidated Financial Statements, the Hospital Plan is funded at 100.1% of its benefit obligations. If the very document cited by the Plaintiff in the Amended Complaint shows that the Hospital Plan is overfunded, she cannot possibly establish a substantial risk of future injury based on underfunding. Accordingly, the Plaintiff does not have standing to bring Count III with respect to the Hospital Plan. Merged Plan The Plaintiff does not explain why, even if the Merged Plan is presently underfunded, she faces a substantial risk of her pension being lost or severely reduced. She does not explain what benefit she is entitled to under the Merged Plan, or when that benefit is due. She does not indicate whether the Merged Plan has ever failed to make a required payment, nor does she indicate when the Merged Plan will need additional funding in order to meet its payment obligations. The Plaintiff has not adequately pleaded that she faces a substantial, rather than merely speculative, risk of future injury. Thus, the Plaintiff lacks standing to bring Count III with respect to the Merged Plan. Counts II.A, II.C, VI, and VII: Whether AHS is a Proper Defendant Despite Not Being Administrator of the Plans The Defendants argue that, because AHS is not the administrator of the Plans, AHS is not the proper defendant in Counts II.A, II.C, VI, and VII of the Amended Complaint. Only plan administrators can be sued for violations of ERISA's notice and reporting requirements. The Amended Complaint asserts that the Plans do indeed have named administrators, so there is no basis for the plan sponsor to be deemed the administrator in this case. Accordingly, Counts II.A, II.C, and VII will be dismissed to the extent that they include AHS as a Defendant, and Count VI will be dismissed in full. Counts VIII, IX, X, and XI: Breach of Fiduciary Duty and Prohibited Transactions under ERISA The Defendants argue that Counts VIII, IX, and XI, against all Defendants, are insufficiently pled insofar as they fail to put the Defendants on notice of the claims against them. Counts VIII, IX, and XI combine all Defendants together and fail to distinguish between actions taken by individual Defendants. Those three Counts also do not differentiate between violations with respect to the different Plans. Accordingly, Counts VIII, IX, and XI are all inadequately pled and will be dismissed without prejudice. As for Count X, the Defendants aver that the Plaintiff has failed to adequately allege that (1) AHS is a fiduciary for the Hospital Plan and that (2) AHS had a duty to monitor. The Plaintiff's allegations relating to AHS as a fiduciary are conclusory assertions that do little more than restate the statutory elements. Count X does not adequately plead breach of fiduciary duty with respect to the Hospital Plan, and thus, it should be dismissed with respect to the Hospital Plan.9 Counts I, II.A, II.C, IV, VIII, IX, XI, and XIII: The Retirement Board, the Hospital Plan Committee, and the Merged Plan Committee as Defendants The Plaintiff asserts several claims against the Retirement Board and the Hospital Plan Committee with respect to the Merged Plan, and several claims against the Merged Plan Committee with respect to the Hospital Plan, even though the Retirement Board and Hospital Plan Committee had nothing to do with the Merged Plans and the Merged Plan Committee had nothing to do with the Hospital Plan. The Plaintiff concedes this, stating that claims against certain Defendants for certain Plans should not be included in the Amended Complaint. Accordingly, Counts I, II.A, II.C, III, IV, and XIII will be dismissed to the extent that they include claims against the Retirement Board and the Hospital Plan Committee with respect to the Merged Plans, and to the extent that they include claims against the Merged Plan Committee with respect to the Hospital Plan. Counts VIII, IX, and XI need not be addressed here, as they are already due to be dismissed in full because of the inadequate pleading discussed above in Subsection A(4). Count XII: The Church Plan Exemption Violates the Establishment Clause The Plaintiff alleges that extension of the Church Plan exemption to AHS would violate the Establishment Clause of the First Amendment to the United States Constitution. The Defendants move to dismiss this claim, and the United States filed a Memorandum in Support of the Constitutionality of the ERISA Church Plan Exemption. However, because the Court has not yet determined whether the Plans qualify as Church Plans, the Constitutional claim is premature. Count XIII: Breach of Contract The Defendants argue that the Plaintiff's state law claim for breach of contract fails to state a viable claim. First, the Defendants note that Count XIII is against all Defendants, but only makes allegations against In the Response, the Plaintiff concedes that the contract claim is only against AHS. But the flaws in Count XIII do not end with a failure to distinguish between the Defendants; Count XIII also fails to differentiate between the Plans and their respective contractual provisions. With only references to promises, obligations and good faith, the Amended Complaint is not specific enough to state a claim for breach of at least two different contracts. Count XIII will be dismissed for failure to state a claim. Unjust Enrichment: Count XIV The Plaintiff pleads unjust enrichment as an alternative to the breach of contract claim. The elements of a claim for unjust enrichment under Florida law are: (1) the plaintiff conferred a benefit on the defendant, who had knowledge of the benefit; (2) the defendant accepted and retained the benefit; and (3) under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it. The Plaintiff claims that the benefits conferred on AHS included (1) tens of millions of dollars saved by not contributing to the Plans; (2) contributions of the Plaintiff and other class members made during the course of their employment, such as time, labor, and experience; and (3) avoidance of costs associated with higher employee turnover. But, in reality, the only benefit conferred on the Defendant by the Plaintiff was her labor and services, for which she received compensation by means of a salary or wages. Any money saved by underfunding these plans would not be a benefit conferred on AHS by the Plaintiff. There is simply no equitable claim here, so Count XIV will be dismissed. Breach of Fiduciary Duty: Count XV The Defendants contend that Count XV fails to distinguish between individual Defendants in its allegation that the Defendants breached fiduciary duties owed Plaintiff and the other class members. The Court agrees. The Plaintiff's footnote, found in the Memorandum in Opposition, summarily stating that claims against the Retirement Board and the Hospital Plan Committee with respect to the Merged Plans, and claims against the Merged Plan Committee with respect to the Hospital Plan, should not be included in Count XV, is insufficient to cure the pleading deficiency. Accordingly, Count XV does not put each Defendant on fair notice of the claims against it, and it should be dismissed as inadequately pled. The Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Counts II.A, II.C, and VII are DISMISSED without prejudice to the extent that they include AHS as Defendant. Count III is DISMISSED without prejudice for lack of standing. Count X is DISMISSED without prejudice with respect to the Hospital Plan. Counts I, II.A, II.C, IV, and XIII are DISMISSED without prejudice to the extent that they include claims against the Retirement Board and the Hospital Plan Committee with respect to the Merged Plan, and to the extent that they include claims against the Merged Plan Committee with respect to the Hospital Plan. Counts VI, VIII, IX, XI, XIII, XIV, and XV are DISMISSED in full, without prejudice. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/yadadtfp from Leagle.com. Donna Sheedy, On Behalf of Herself and All Others Similarly Situated, Plaintiff, represented by Bryan E. DeMaggio, Sheppard, White, Kachergus, & DeMaggio PA, Gregory M. Egleston -- bgainey@gme-law.com -- Gainey, McKenna & Egleston, pro hac vice, Thomas J. McKenna -- tjmckenna@gme-law.com -- Gainey & McKenna, pro hac vice &William J. Sheppard -- sheplaw@sheppardwhite.com -- Sheppard, White, Kachergus, & DeMaggio PA. Adventist Health System Sunbelt Healthcare Corporation, doing business as Adventist Health System (Healthcare Corporation), Adventist Retirement Board & Adventist Retirement Plan Administrative Committee, Defendants, represented by Lars C. Golumbic -- lgolumbic@groom.com -- Groom Law Group, Chartered, pro hac vice, Sean Abouchedid -- sabouchedid@groom.com -- Groom Law Group, Chartered, pro hac vice & Walter A. Ketcham, Jr. -- waketcham@growerketcham.com -- Grower, Ketcham, Eide, Telan & Meltz, PA. Adventist Health System Benefits Administration Committee, Defendant, represented by Lars C. Golumbic , Groom Law Group, Chartered, Sean Abouchedid , Groom Law Group, Chartered, pro hac vice & Walter A. Ketcham, Jr. , Grower, Ketcham, Eide, Telan & Meltz, PA. United States of America, Movant, represented by Emily Newton , U.S. Department of Justice. AIR EVAC: T. Chanze's Suit Remains in Federal Court --------------------------------------------------- The United States District Court for the Northern District of West Virginia denied Plaintiffs' Motion to Remand the case captioned TROY CHANZE, SR., on his own behalf and on behalf of all others similarly situated, Plaintiff, v. AIR EVAC EMS, INC., a Missouri corporation, Defendant, Civil Action No. 5:18CV89 (N.D.W.V.). This case arises out of alleged breach of implied contract between the plaintiff, Troy Chanze, Sr. (Chanze) and defendant Air Evac EMS, Inc. (Air Evac). The Plaintiff's motion to remand, filed pursuant to 28 U.S.C. Section 1446 and 28 U.S.C. Section 1332, asserts the the defendant cannot meet the following requirements under the Class Action Fairness Act (CAFA): (1) that the class must consist of 100 or more members; and (2) that the amount in controversy must exceed $5,000,000.00. First, the plaintiff argues that the defendant has merely asserted that the class exceeds 100 members without offering any supporting evidence. The plaintiff contends that this is not enough to establish jurisdiction, and states unless and until the Defendant provides the Court with provable data demonstrating that the class size does, in fact, exceed the 100-member minimum, the Plaintiff is entitled to remand. Applicable Law A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. The Class Action Fairness Act (CAFA) confers original jurisdiction on district courts over class actions in which (1) the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs (2) any member of a class of plaintiffs is a citizen of a State different from any defendant and (3) there are 100 or more plaintiff class members. In this case, once plaintiff contested the amount in controversy by filing his motion to remand, the defendant appended to its response to plaintiff's motion a declaration of the Manager of Compliance and Audit for Revenue Cycle for Air Evac EMS, Inc., Joshua Redfield. In his declaration, Mr. Redfield states, in part, inter alia: "The Court have also reviewed internal transport records for Air Evac emergency transports in West Virginia during the relevant time period." From April 16, 2013 to April 16, 2018, Air Evac provided emergency transports for at least 6,000 patients from a location in West Virginia to a healthcare facility. The total charges associated with the air ambulance services provided to the more than 6,000 patients exceed $200 million. In regard to whether the proposed class of the plaintiffs would include at least 100 members, Air Evac has submitted proof to establish the number of emergency transports during the class period by attaching the declaration of Joshua Redfield, which states, that Air Evac provided emergency air transportation to at least 6,000 individuals from a location in West Virginia to a healthcare facility during the period of April 16, 2013 to April 16, 2018. This Court finds that the pleadings and declaration filed in this case are sufficient to demonstrate, under the CAFA and by a preponderance of the evidence, that the class of plaintiffs consists of 100 or more members and that the amount in controversy exceeds $5,000,000.00. A full-text copy of the District Court's July 23, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9ox694v from Leagle.com. Troy Chanze, Sr., on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by James G. Bordas, Jr., Bordas & Bordas, PLLC & Jason E. Causey, Bordas & Bordas, PLLC. Air Evac EMS, Inc., a Missouri corporation, Defendant, represented by Carte P. Goodwin, Frost Brown Todd, LLC, Joshua L. Fuchs -- jlfuchs@jonesday.com -- Jones Day, pro hac vice & Katelyn M. Matscherz -- kmatscherz@jonesday.com -- Jones Day, pro hac vice. AJ THAI INC: Fails to Properly Pay Workers, Srimaharaja Says ------------------------------------------------------------ CHAMAPUN SRIMAHARAJA, individually and on behalf of others similarly situated v. A.J. THAI INC. (D/B/A SARIN THAI), ACHARA CHANGTRORALEKE, and PATCHAREE RUANGKONG, Case No. 1:18-cv-04377 (E.D.N.Y., August 2, 2018), alleges that the Plaintiff worked for the Defendants without appropriate minimum wage and spread of hours compensation for the hours that she worked, in violation of the Fair Labor Standards Act and the New York Labor Law. A.J. Thai Inc. (d/b/a Sarin Thai) is a domestic corporation organized and existing under the laws of the state of New York. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporation. The Defendants own, operate, or control a Thai Restaurant, located at 43 Glen Cove Road, in Greenvale, New York, under the name "Sarin Thai." The Thai Restaurant is located in the Greenvale section of Nassau County in Long Island.[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com ALERE HOME: Sandusky Wellness Center Sues over Unsolicited Fax -------------------------------------------------------------- SANDUSKY WELLNES CENTER, LLC, an Ohio limited liability company, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. ALERE HOME MONITORING, INC., ALERE, INC., Delaware corporations, and ABBOTT LABORATORIES, an Illinois corporation, the Defendants, Case No. 4:18-cv-04869-KAW (N.D. Cal., Aug. 10, 2018), seeks to recover damages as a result of Defendants' practice of sending "unsolicited advertisements" by facsimile. According to the complaint, the federal Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, and the regulations promulgated under the Act, prohibits a person or entity from faxing or having an agent fax advertisements without the recipient's prior express invitation or permission. The JFPA provides a private right of action and provides statutory damages of $500 per violation. The Defendants have sent facsimile transmissions of unsolicited advertisements to Plaintiff and the Class in violation of the JFPA, including, but not limited to, the facsimile transmission of two unsolicited advertisements on August 9, 2016 and April 25, 2017. The Faxes promote the services and goods of Defendants. The Defendants allegedly have sent, and continue to send, unsolicited advertisements via facsimile transmission in violation of the JFPA. Unsolicited faxes damage their recipients. A junk fax recipient loses the use of its fax machine, paper, and ink toner. An unsolicited fax wastes the recipient's valuable time that would have been spent on something else. A junk fax interrupts the recipient's privacy. Unsolicited faxes prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients' fax machines, and require additional labor to attempt to discern the source and purpose of the unsolicited message. Alere Home provides home anticoagulation monitoring services and related products for patients and healthcare professionals in the United States.[BN] The Plaintiff is represented by: Robert C. Schubert, Esq. Willem F. Jonckheer, Esq. SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: (415) 788 4220 Facsimile: (415) 788 0161 E-mail: rschubert@sjk.law wjonckheer@sjk.law - and - Ryan M. Kelly, Esq. ANDERSON & WANCA 3701 Algonquin Road, Ste 500 Rolling Meadows, IL 60008 Telephone: (847)368 1500 Facsimile: (847)368 1501 E-mail: rkelly@andersonwanca.com ALIBABA GROUP: Discovery Ongoing in Federal Securities Suit ----------------------------------------------------------- Alibaba Group Holding Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on July 27, 2018, for the fiscal year ended March 31, 2018, that discovery is ongoing in the Federal Consolidated Exchange Act Actions. In January 2015, the company was named as a defendant in the first of seven putative shareholder class action lawsuits filed in the United States District Courts for the Southern District of New York, Central District of California and Northern District of California. The operative complaint is brought on behalf of a putative class of shareholders who acquired the company's American Depositary Shares from October 21, 2014 through January 29, 2015, inclusive. The complaints assert claims under the United States Securities Exchange Act of 1934. In June 2015, the U.S. Judicial Panel on Multidistrict Litigation ordered transfer of the actions in the Central District of California to the Southern District of New York for coordinated or consolidated pretrial proceedings with the four actions before that court. In June 2015, the Panel ordered transfer of the action pending in the Northern District of California to the Southern District of New York. The actions in the Southern District of New York were consolidated under the master caption, Christine Asia Co., Ltd. et al. v. Alibaba Group Holding Limited et al., No. 1:15-md-02631-CM (S.D.N.Y.), and related cases. The Southern District of New York appointed a Lead Plaintiff and Lead Counsel on behalf of the putative class pursuant to the Private Securities Litigation Reform Act. In June 2015, the Lead Plaintiff filed a consolidated amended complaint, which generally alleged that the registration statement and prospectus filed in connection with the company's initial public offering and various other public statements contained misrepresentations regarding the company's business operations and financial prospects, and failed to disclose, among other things, regulatory scrutiny by the SAIC prior to the company's initial public offering. Specifically, plaintiffs alleged that the company should have disclosed a 2014 SAIC anti-counterfeiting initiative in the e-commerce market, a July 16, 2014 administrative guidance meeting the company had with the SAIC that was later the subject of a self-described "white paper" issued and then withdrawn by the SAIC, and the alleged impact of the sale of counterfeit goods on our financial results. Plaintiffs asserted claims against the company and Executive Chairman Jack Yun Ma, Executive Vice Chairman Joseph C. Tsai, then Chief Executive Officer Jonathan Zhaoxi Lu and Chief Financial Officer Maggie Wei Wu for violation of sections 10(b) and 20(a) of the United States Exchange Act and Rule 10b-5. Plaintiffs sought unspecified damages, attorneys' fees and costs. In July 2015, the Defendants filed a motion to dismiss the complaint for failure to state a claim. In June 2016, the Southern District of New York issued an order granting Defendants' motion to dismiss without leave to amend. The order held that Plaintiffs failed to plead that Defendants made actionable misstatements or omissions or that Defendants acted with scienter. In July 2016, Plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit. On December 5, 2017, the Second Circuit issued a summary order vacating the Southern District of New York's dismissal order and remanding the case to the Southern District of New York for further proceedings. On March 12, 2018, Plaintiffs filed a motion for class certification and appointment of class representatives and class counsel. Among other things, Plaintiffs requested that the Southern District of New York certify a class of all persons and/or entities that purchased or otherwise acquired the company's American Depositary Shares or purchased call options or sold put options on our American Depositary Shares between September 19, 2014 and January 28, 2015, inclusive, with certain exclusions. The Southern District of New York granted the motion on May 1, 2018. Discovery in the action is ongoing. Alibaba Group Holding Limited, through its subsidiaries, operates as an online and mobile commerce company in the People's Republic of China and internationally. The company operates in four segments: Core Commerce, Cloud Computing, Digital Media and Entertainment, and Innovation Initiatives and Others. The company was founded in 1999 and is based in Hangzhou, the People's Republic of China. ALLEGIANT AIR: Basiliali Asks Court to Certify Class & Subclasses ----------------------------------------------------------------- In the lawsuit styled LAYLA BASILIALI, an individual, on behalf of herself and others similarly situated, the Plaintiff, v. ALLEGIANT AIR, LLC, a Nevada limited liability company; and DOES 1 through 50, inclusive, the Defendants, Case No. 2:18-cv-03888-RGK-MRW (C.D. Cal.), the Plaintiff will move the Court on October 15, 2018, for an order: 1. certifying class and subclasses: Class of California based Flight Attendants: "all individuals employed by Defendants at any time during the period of four years prior to the filing of this lawsuit [March 15, 2014] and ending on a date as determined by the Court who have worked as a flight attendant with an assigned home base airport in California"; Minimum Wages Subclass: "all Class members who were not compensated for all hours worked for Defendants at the applicable minimum wage"; Wages and Overtime Subclass: "all Class members who were not compensated for all hours worked for Defendants at the required rates of pay, including for all hours worked in excess of eight in a day and/or forty in a week"; Meal Period Subclass: "all Class members who were subject to Defendants' policy and/or practice of failing to provide unpaid 30-minute uninterrupted and duty-free meal periods or one hour of pay at the Employee's regular rate of pay in lieu thereof"; Rest Break Subclass: "all Class members who were subject to Defendants' policy and/or practice of failing to authorize and permit Employees to take uninterrupted, duty-free, 10-minute rest periods for every four hours worked, or major fraction thereof, and failing to pay one hour of pay at the Employee’s regular rate of pay in lieu thereof"; Expense Reimbursement Subclass: "all Class members who incurred necessary and reasonable expenses in connection with performing their job duties for Defendants and who were subject to a policy and/or practice under which such expenses were not reimbursed"; Wage Statement Subclass: "all Class members who, within the applicable limitations period, were not provided with accurate itemized wage statements"; Unauthorized Deductions from Wages Subclass: "all Class members who were subject to Defendants’ policy and/or practice of automatically deducting 30-minutes worth of wages from Employees for alleged meal periods they were denied and/or by understating the hours worked by Employees"; Failure to Timely Pay Wages Twice Monthly Subclass: "all Class members who were subject to Defendants’ policy and practice of not timely paying all wages earned when they were due and payable at least twice monthly"; UCL Subclass: "all Class members who are owed restitution as a result of Defendants’ business acts and practices, to the extent such acts and practices are found to be unlawful, deceptive, and/or unfair"; and 2. appointing class counsel. Attorneys for Plaintiff, on behalf of herself and others similarly situated: David Yeremian, Esq. Alvin B. Lindsay, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Telephone: (818) 230 8380 Facsimile: (818) 230 0308 E-mail: david@yeremianlaw.com alvin@yeremianlaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP, PC 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (310) 652 2242 E-mail: walterhaines@yahoo.com ALTICE USA: Rosen Law Firm Probes Securities Claims --------------------------------------------------- Rosen Law Firm, a global investor rights law firm, is investigating potential securities claims on behalf of shareholders of Altice USA, Inc. resulting from allegations that Altice may have issued materially misleading business information to the investing public. The investigation concerns whether Altice's filings with the U.S. Securities and Exchange Commission (the "SEC") in connection with its June 2017 initial public offering (the "IPO") contained untrue statements of material fact or omitted material information. As of August 3, 2018, Altice's share price had fallen more than 40% from its IPO price of $30, thereby injuring investors. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by Altice investors. If you purchased shares of Altice please visit the firm's website at http://www.rosenlegal.com/cases-1393.htmlto join the class action. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen—firm. Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34thFloor New York, NY 10016 Telephone: 212-686-1060 Toll Free: 866-767-3653 Fax: 212-202-3827 Email: lrosen@rosenlegal.com pkim@rosenlegal.com [GN] AMERICOLLECT INC: Faces Mezzo Suit in District of New Jersey ------------------------------------------------------------ A class action lawsuit has been filed against Americollect, Inc. The case is captioned as ANTHONY MEZZO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. AMERICOLLECT, INC., the Defendant, Case No. 3:18-cv-12559 (D.N.J., Aug. 8, 2018). Americollect, Inc. provides debt collection services to healthcare industry. The company offers hospital collection, radiology collection, and medical collection.[BN] The Plaintiff is represented by: Todd D. Muhlstock, Esq. BAKER SANDERS LLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 741 4799 E-mail: ECF@MuhlstockLaw.com AMYRIS INC: Court Dismisses Amended Derivative Shareholders' Suit ----------------------------------------------------------------- The United States District Court for the Northern District of California granted Defendants' Motion to Dismiss the Amended Complaint in the case captioned WAYNE BONNER, et al., Plaintiffs, v. JOHN MELO, et al., Defendants, Case No. 17-cv-04719-WHO (N.D. Cal.). In the Court's prior Order dismissing this shareholders derivative class action, the Court explained that the plaintiff's complaint suffered from significant omissions. First, the plaintiff did not support his misstatement or failure to correct breach of fiduciary duty claim with facts showing that the directors knowingly disseminated false information or dishonestly failed to correct a prior misrepresentation. Second, the plaintiff did not support his claim of demand futility with facts showing that any director acted in self-interest or was necessarily beholden to the control of an interested director to excuse demand. The Court gave the plaintiff leave to amend. In amending, the plaintiff changed his theories of liability and demand futility. According to the plaintiff, the wrong committed by the defendants alleged in the Amended Complaint (AC) is: "Defendants continuing to tell the shareholders and the public that the deal would result in $10 million in revenue to the Company despite the fact the value of the stock received was between $212,528.75 and $3.2 million and whether Defendants adequately informed itself when renegotiating the deal." These new theories of liability run up against the business judgment rule, which cannot avoided based on the plaintiff's own facts. The Plaintiff continues to fail to plead facts showing knowing falsity with respect to any of the alleged misrepresentations made by the defendants. And demand futility has not been shown: the AC contains no facts suggesting a significant risk of personal liability to the defendants, evidence of bad faith, or that the decision falls outside the protection of the business judgment rule. The heart of the plaintiff's new theory, it seems, is that the defendants' decision to allow the perception that Amyris would still receive $10 million in revenue from the deal to continue was a breach of their fiduciary duty because the defendants failed to inform themselves as to the actual value of the equity. As support for the failure to inform theory, the plaintiff looks to the actual number of shares received by Amyris, transferred to Amyris on April 17, 2018, as disclosed in the Company's 10-Q filed on May 16, 2017 and using SweeGen's share prices from March and April 2017, estimate the value as being under $300,000. The Plaintiff also points out that the actual revenue recognized from the equity through June 30, 2017 was only $2.7 million and that an independent valuation of the equity was only $3.2 million. But to state a breach of the duty of care, which is what this claim sounds in, the plaintiff must plead facts showing gross negligence, meaning conduct that constitutes reckless indifference or actions that are without the bounds of reason, the intentional dereliction of duty or the conscious disregard for one's responsibilities or subjective bad intent. No such facts have been alleged here. In light of these continuing deficiencies, the Amended Complaint is dismissed. Given the multiple opportunities plaintiff has had to plead his case, it is dismissed with prejudice. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/y9ghtaw2 from Leagle.com. Wayne Bonner, Derivatively on Behalf of Amyris, Inc., Plaintiff, represented by Felipe Javier Arroyo -- farroyo@robbinsarroyo.com -- Robbins Arroyo LLP, Steven Ray Wedeking, II -- swedeking@robbinsarroyo.com -- Robbins Arroyo LLP & Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP. Marc Goldstein, Plaintiff, represented by Steven Ray Wedeking, II , Robbins Arroyo LLP. John Melo, Kathleen Valiasek, Geoffrey Duyk, John Doerr, Carole Piwnica, Fernando de Castro Reinach, Abdullah bin Khalifa Al Thani, R. Neil Williams, Patrick Yang, Abraham Klaeijsen, Christophe Vuillez & Amyris, Inc., Nominal Defendant, Defendants, represented by Jesselyn K. Friley -- jfriley@keker.com -- Keker Van Nest and Peters, Laurie Carr Mims -- lmims@keker.com -- Keker Van Nes & Peters LLP, Matan Shacham -- mshacham@keker.com -- Keker & Van Nest LLP & Michael D. Celio -- mcelio@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. ANALOGIC CORPORATION: Faces Burcaw Suit over Altaris Merger ----------------------------------------------------------- RUSS BURCAW, individually and on behalf of all others similarly situated, Plaintiff v. ANALOGIC CORPORATION; BERNARD C. BAILEY; JEFFREY P. BLACK; JAMES J. JUDGE; MICHAEL T. MODIC; STEPHEN A. ODLAND; FRED PARKS and JOSEPH E. WHITTERS, Defendants, Case No. 1:18-CV-11557 (D. Mass., July 24, 2018) is an action against the Defendants for violations of the federal securities laws arising out of alleged false and misleading statements made by the Defendants in connection with the solicitation of shareholders votes in favor of the go-private sale of the Analogic to Altaris Capital Partners, LLC. According to the complaint, the Defendants' Proxy submitted on May 16, 2018, and supplemented on June 12, 2018, were false and misleading when it recommended that stockholders vote in favor of the merger, because the merger agreement and the merger are in the best interests of the Company and its shareholders, and the $84 merger offer was more favorable to the Company shareholders than all other alternatives, including remaining as a standalone Company. The Defendants failed to disclose in the Proxy that the Company's share could have been valued more than the $84 merger offer. Analogic Corporation designs, manufactures, and sells medical imaging systems, ultrasound and security systems, and subsystems to original equipment manufacturers (OEMs) and end users primarily for the medical and airport security markets worldwide. The company was founded in 1967 and is headquartered in Peabody, Massachusetts. As of June 22, 2018, Analogic Corporation was taken private. [BN] The Plaintiff is represented by: Robert Carmel-Montes, Esq. THE CARMEL LAW GROUP 15 Broad Street, Suite 800 Boston, MA 02109 Telephone: (617) 227-6355 Facsimile: (617) 227-6356 ARCHDIOCESE OF LOS ANGELES: Fails to Pay OT, Perez Suit Alleges --------------------------------------------------------------- CARLOS OLMOS PEREZ, individually and on behalf of all others similarly situated, Plaintiff v. THE ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES, and DOES 1 through 25, Defendants, Case No. BC714164 (Cal. Super., Los Angeles Cty., July 18, 2018) is an action against the Defendants for failure to pay overtime wages, authorize and permit rest periods, and provide accurate itemized wage statements. Mr. Perez was employed by the Defendants as a non-exempt, hourly employee from July 18, 2014 to present. The Roman Catholic Archbishop of Los Angeles is a California Corporation doing business in Los Angeles, California. [BN] The Plaintiff is represented by: Michael H. Boyamian, Esq. Armand R. Kizirian, Esq. BOYAMIAN LAW, INC. 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203-1922 Telephone: (818) 547.5300 Facsimile: (818)547.5678 E-mail: michael@boyamianlaw.com armand@boyamianlaw.com AUSTRALIA: Class Action Mulled Over White Spot Outbreak ------------------------------------------------------- David Simmons, writing for Business News Australia, reports that more than 100 commercial fishers in Queensland are preparing for a lawsuit against the federal government over the White Spot outbreak. The suit, which will be prepared by Chris Thompson from Law Essentials, a Harvey Bay based law firm, is in relation to the White Spot disease that has infected Queensland prawns and cost the industry millions. Trawlers, crabbers and worm diggers operating out of Moreton Bay say the federal government abandoned them after the deadly disease was found in wild prawn stocks last year and are now planning to sue for damages. Queensland Seafood Industry Association chief executive Eric Perez says the move is a last resort after lobbying efforts for compensation failed. Queensland fisherman say they have been forced to sit on their hands and wait in hope that prawns infected with White Spot will die off and stop the spread of the deadly disease. Michael Wood has trawled for prawns off the Queensland coast for decades but says his industry has been hit hard in the wake of an outbreak in 2016. "We're really hoping that the actual prawns that are infected die out," says Mr. Wood. "There's no other way we can manage it." White Spot was found in the Logan River south of Brisbane and at three of eight land-based prawn farms in 2016. It was later detected in wild prawn stocks in Moreton Bay. The disease is harmless to humans but causes high mortality rates in prawns. Mr. Wood says the federal government, responsible for stopping the import of infected prawns, has abandoned his industry and left fishermen to pick up the pieces. "We just want everyone to know how hard we're doing it," says Wood. The disease has cost the industry hundreds of millions of dollars and continues to impact fishermen, while state government imposed restocking restrictions placed on farmers hit by the outbreak were lifted in May. Meanwhile, a Gold Coast bait supplier has been fined $10,000 for moving infected raw prawns out of a control zone and selling them to a bait shop in the Warwick area where they were quickly removed by authorities. In November 2017, three shipments of raw prawns imported from overseas tested positive for white spot disease following the lifting of the import ban. The federal government banned raw prawn imports in January but lifted the ban in July in a move that devastated local prawn farmers who warned the imports could be dangerous. The three overseas shipments were detected the white spot by biosecurity tests despite an enhanced regime that requires exporting countries to certify their shipments are free of the disease. The positive tests are certain to alarm the prawn industry which lobbied to prevent the lifting of the import ban. The Queensland Seafood Industry Association told a Senate Committee farmers had "absolutely no confidence in the new testing programs". The Australian Prawn Farmers Association also railed against lifting the ban. White spot poses no risk to human health but is deadly to prawns. [GN] AUTOZONE STORES: Court Won't Amend Denial of Class Certification ---------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, declined to Amend its previous Order denying Plaintiffs' Motion for Class Certification in the case captioned MICHAEL BRADY, et al., Plaintiffs, v. AUTOZONE STORES, INC., and AUTOZONERS LLC, Defendants, Case No. C13-1862 RAJ (W.D. Wash.). This matter comes before the Court on the parties' submissions regarding the impact of a Washington Supreme Court Advisory Opinion on this Court's Class Certification Order, which denied Plaintiff Michael Brady's (Mr. Brady) Motion for Class Certification. Plaintiff Michael Brady filed an Amended Class Action Complaint in state court seeking unpaid wages for meal breaks that Defendants allegedly withheld from employees. Brady later moved this Court to certify a class. Mr. Brady moved to certify the following two classes: Class 1: All former and current hourly-paid AutoZone store employees who worked more than five hours in a day but did not receive a meal break within five hours of the start of their shifts, for the period of September 25, 2010, to the date of the Class Notice. Class 2: All former and current hourly-paid AutoZone store employees who worked more than five hours after the conclusion of a meal break but did not receive a second meal break within five hours after the conclusion of the first meal break, for the period of December 12, 2009, to the date of the Class Notice. Mr. Brady sought review of this denial in the Ninth Circuit Court of Appeals, but that court would not permit Mr. Brady to appeal the decision. Instead of moving forward with his individual claims, Mr. Brady moved to certify two questions to the Washington Supreme Court: (1) whether monetary damages are available for violations of WAC 296-126-092; and (2) whether a plaintiff must show the reason for why he did not receive a timely meal break in order to prove a violation of WAC 296-126-092. This Court granted Mr. Brady's motion to certify in part, but certified two different questions for the Washington Supreme Court: 1. Is an employer strictly liable under WAC 296-126-092? 2. If an employer is not strictly liable under WAC 296-126-092, does the employee carry the burden to prove that his employer did not permit the employee an opportunity to take a meaningful break as required by WAC 296-126-092? The Washington Supreme Court ruled that the answer to the first question was no, because employees may waive their meal breaks. As to the second question, the Washington Supreme Court stated that an employee asserting a meal break violation under WAC 296-126-092 can meet his or her prima facie case by providing evidence that he or she did not receive a timely meal break. Once this happens, the employer may then rebut this by showing that in fact no violation occurred or a valid waiver exists. Following the Opinion from the Washington Supreme Court, this Court ordered the parties to file a legal memorandum addressing the impact, if any, that the opinion issued by the Washington Supreme Court has on this Court's Order denying class certification. The court's decision to certify a class is discretionary. Federal Rule of Civil Procedure 23 guides the court's exercise of discretion. A plaintiff bears the burden of demonstrating that he has met each of the four requirements of Rule 23(a) and at least one of the three alternative requirements of Rule 23(b). Mr. Brady Has Still Failed to Prove Predominance To meet the predominance requirement, common questions of law and fact must be a significant aspect of the case that can be resolved for all members of the class in a single adjudication. Contrary to Mr. Brady's assertions, the Washington Supreme Court did not describe what it means to receive a timely meal break, or what evidence would show that an employee did not receive such a break. Mr. Brady suggests that the Washington Supreme Court specifically held that payroll records alone were sufficient evidence, when submitted by plaintiffs, to establish that an employee did not receive a timely meal break. This Court disagrees. The Washington Supreme Court raised the possibility that payroll records may be used by defendants in rebutting a prima facie claim by plaintiffs. The Washington Supreme Court said nothing about what sort of evidence was appropriate for plaintiffs to uphold their own burden of production. This Court has already held that the time-card data was not sufficient to establish predominance, and the Opinion does not address this issue. As this Court predicted in its previous Order, this answer by the Washington Supreme Court would not change the Court's denial of class certification because Mr. Brady has not met his burden either way with the submitted evidence. Individualized inquiries as to waiver would overwhelm common questions The Court also notes that proposed class members would be subject to affirmative defenses that turn on individualized factual allegations. As the Washington Supreme Court has made clear, employers are entitled to rebut claims of violations under WAC 296-126-092 with evidence for the affirmative defense that the individual waived their break. Here, the record indicates that dozens, if not hundreds, of AutoZone employees waived their meal breaks in various ways. AutoZone has submitted a multitude of evidence and dozens of declarations that these waivers, which could be written, verbal, or implied, were commonplace in AutoZone stores throughout the State of Washington. AutoZone also submitted evidence that the waiver practices varied between different AutoZone stores, and were sometimes tailored to individual AutoZone employees based on the employee's request. This defense does not simply go to damages; it goes to the underlying liability under WAC 296-126-092. In order to ascertain class-wide composition and liability, the Court would thus be forced to engage in an individualized inquiry for thousands of employees to determine if a WAC 296-126-092 violation occurred, whether the individual is properly included in the class, and the extent of their damages. The presence of these individualized inquiries to determine liability and then damages would make a class proceeding unmanageable. The Court finds that Mr. Brady still has not met his burden on predominance with the evidence he provided. Mr. Brady Has Still Failed to Prove Superiority The Court also finds that Mr. Brady has still failed on the superiority prong. If each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not superior. As discussed above, the determination of whether or not the putative class members either missed, waived, or did not receive their meal breaks would require individual inquiries for almost every individual claimed to be in the class. The Court is still not convinced, as was Plaintiff's burden, that the class action is a superior vehicle by which to litigate these numerous individual inquiries. The Court's earlier decision that Mr. Brady failed to carry his burden under the superiority prong of Rule 23(b)(3) stands. This Court declines to disturb its earlier ruling denying Mr. Brady's Motion for Class Certification. Based on the record before it, the Court finds that Mr. Brady still has not met his burden to show that common issues of law or fact predominate to make class action the superior vehicle. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/ybu63pau from Leagle.com. Michael Brady, Plaintiff, represented by Christie J. Fix -- cfix@frankfreed.com -- FRANK FREED SUBIT & THOMAS, Michael C. Subit -- msubit@frankfreed.com -- FRANK FREED SUBIT & THOMAS & Steven Bert Frank -- sfrank@frankfreed.com -- FRANK FREED SUBIT & THOMAS. AutoZone Stores, Inc. & AutoZoners LLC, Defendants, represented by Patrick M. Madden -- patrick.madden@klgates.com -- K&L GATES LLP, Todd L. Nunn -- todd.nunn@klgates.com -- K&L GATES LLP & Stephanie Wright Pickett -- stephanie.pickett@klgates.com -- K&L GATES LLP. BANK OF AMERICA: Nov. 8 ISDAfix Instrument Settlement Hearing Set ----------------------------------------------------------------- This is a new notice concerning an additional proposed settlement (the "Proposed Settlement") reached in the matter of Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al., currently pending in the United States District Court for the Southern District of New York (the "Court"). It is to alert Settlement Class Members to a new and additional settlement with five Defendants: BNP Paribas (named in the Action as "B.N.P. Paribas SA"); ICAP Capital Markets LLC (now known as Intercapital Capital Markets LLC); Morgan Stanley & Co. LLC; Nomura Securities International, Inc.; and Wells Fargo Bank, N.A. (collectively, the "Newly Settling Defendants"), in a class action against Newly Settling Defendants and other Defendants who previously settled. The lawsuit alleges that Defendants, including the Newly Settling Defendants, engaged in anticompetitive acts that affected the market for ISDAfix Instruments, as defined below, in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The lawsuit also alleges that certain Defendants were unjustly enriched under common law and breached ISDA Master Agreements. The lawsuit was brought by persons who transacted in ISDAfix Instruments. All Defendants deny they did anything wrong. A Proposed Settlement has been reached with the Newly Settling Defendants. This is separate from the settlements that have already been given final approval by the Court, which covered other Defendants in the same action (the "Approved Settlements"). The Newly Settling Defendants have agreed to pay $96 million (the "Settlement Fund"). This amount is in addition to the fund created from the $408.5 million paid in connection with the Approved Settlements. Before any money is paid, the Court will have a hearing to decide whether to approve the additional Proposed Settlement. Approval of the Proposed Settlement by the Court will resolve this lawsuit in its entirety. Subject to certain exceptions, the Settlement Class includes all persons or entities (together, "Persons") who, from January 1, 2006, through January 31, 2014, entered into, received or made payments on, settled, terminated, transacted in, or held an ISDAfix Instrument. "ISDAfix Instrument" means (i) any and all interest rate derivatives, including, but not limited to, any swaps, swap spreads, swap futures, variance swaps, volatility swaps, range accrual swaps, constant maturity swaps, constant maturity swap options, digital options, cash-settled swaptions, physically settled swaptions, swapnote futures, cash-settled swap futures, steepeners, flatteners, inverse floaters, snowballs, interest rate-linked structured notes, and digital and callable range accrual notes, where denominated in USD or related to USD interest rates; and (ii) any financial instruments, products, or transactions related in any way to any USD ISDAfix Benchmark Rates, including, but not limited to, any instruments, products, or transactions that reference ISDAfix Benchmark Rates and any instruments, products, or transactions relevant to the determination or calculation of ISDAfix Benchmark Rates. For anyone unsure whether they are a Settlement Class Member, they can find more information, including a detailed Notice of an Additional Proposed Settlement of Class Action (the "Notice"), at www.ISDAfixAntitrustSettlement.com, or by calling the Claims Administrator at 1-844-789-6862 (U.S.), or +1-503-597-5526 (Int.). Settlement Class Members who do not opt out of the Settlement Class will be eligible to file a Proof of Claim and Release Form (the "Claim Form"). Claim Forms can be found at www.ISDAfixAntitrustSettlement.com. The amount of the payment will be determined by a Plan of Distribution to be approved by the Court. The proposed plan is functionally the same as the plan that was given final approval by the Court in connection with the Approved Settlements. Details are available at www.ISDAfixAntitrustSettlement.com. A date for distribution of the Settlement Fund has not been set. Claim Forms must be submitted by December 23, 2018. Settlement Class Members do not need to do anything if they submitted a timely and valid claim form in connection with the Approved Settlements. Any such submission will be treated as a valid and timely Claim Form with respect to this additional Proposed Settlement. Anyone unsure whether they did so can contact the Claims Administrator by calling 1-844-789-6862 (U.S.), or +1-503-597-5526 (Int.). Settlement Class Members who do not opt out of the Settlement Class will release certain legal rights against the Newly Settling Defendants and the Released Defendant Parties, as explained in the detailed Notice and Settlement Agreement, available at www.ISDAfixAntitrustSettlement.com. Settlement Class Members who do not want to take part in the Proposed Settlement must opt out by October 13, 2018. Settlement Class Members may, but do not have to, comment on or object to the Proposed Settlement, or Lead Counsel's application to the Court for an award of attorneys' fees, expenses, and incentive awards to the Class Plaintiffs for representing the Settlement Class with respect to the Proposed Settlement. To do so, a Settlement Class Member must file any comment or objection with the Court by October 13, 2018. Further information on how to opt out of the Settlement Class, or file a comment or objection with the Court, is available at www.ISDAfixAntitrustSettlement.com. The Court will hold a hearing on November 8, 2018, at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, Courtroom 1105, New York, NY 10007, to consider whether to approve the Proposed Settlement, and Lead Counsel's application for an award of attorneys' fees, expenses, and incentive awards to the Class Plaintiffs. Settlement Class Members or their lawyers may ask to appear and speak at the hearing at their own expense, but do not have to. The Court has appointed the lawyers listed below as Lead Counsel to represent the Settlement Class in this Action: Daniel L. Brockett Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 David W. Mitchell Robbins Geller Rudman & Dowd, LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Christopher M. Burke Scott+Scott, Attorneys at Law, LLP 600 West Broadway, Suite 3300 San Diego, CA 92101 BANK OF AMERICA: Ricciardi Suit Seeks to Recover OT Pay ------------------------------------------------------- STEVEN RICCIARDI AND KATHY PHILLIPS, on behalf of themselves and all others similarly situated v. BANK OF AMERICA CORP. and BANK OF AMERICA, N.A., Case No. 1:18-cv-11629-FDS (D. Mass., August 2, 2018), seeks to recover overtime compensation for the Plaintiffs and similarly situated Mortgage Loan Officers, who have been employed by the Defendants in the United States. Bank of America Corp. is a Delaware corporation with its principal place of business in Charlotte, North Carolina, and doing business as a bank, mortgage lender, and financial institution nationwide and within the state of Massachusetts. Bank of America, N.A., is a nationally chartered banking association headquartered in Charlotte, North Carolina, doing business as a bank, mortgage lender, and financial institution nationwide and within the state of Massachusetts. Bank of America, N.A. is a wholly owned subsidiary of Bank of America Corp.[BN] The Plaintiffs are represented by: Hillary Schwab, Esq. Brant Casavant, Esq. FAIR WORK P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3261 Facsimile: (617) 488-2261 E-mail: hillary@fairworklaw.com brant@fairworklaw.com - and - Justin M. Swartz, Esq. Deirdre Aaron, Esq. Nina Martinez, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 E-mail: jms@outtengolden.com daaron@outtengolden.com nmartinez@outtengolden.com - and - Gregg I. Shavitz, Esq. Paolo C. Meireles, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Rd, Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 E-mail: gshavitz@shavitzlaw.com pmeireles@shavitzlaw.com BAR 20: Time to File Supplemental Brief in J. Maciel's Suit Tolled ------------------------------------------------------------------ The United States District Court for the Eastern District of California further extended the Time to File Supplemental Briefing in Support of Motion for Preliminary Approval of Class Action Settlement in the case captioned JOSE MACIEL and ELVIS BONILLA, on behalf of themselves and all others similarly situated, and as aggrieved employees on behalf of other aggrieved employees under the Labor Code Private Attorneys General Act of 2004, Plaintiffs, v. BAR 20 DAIRY, LLC, a California limited liability company, and DOES 1 through 50, inclusive, Defendants, No. 1:17-cv-00902-DAD-SKO (E.D. Cal.). A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/yayq38kf from Leagle.com. Jose Maciel, on behalf of himself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorney General Act of 2004, Plaintiff, represented by Caroline Tahmassian Zarneh , The Spivak Law Firm & David Glenn Spivak, The Spivak Law Firm. Elvis Bonilla, on behalf of himself, and all others similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorney General Act of 2004, Plaintiff, represented by Eric Bryce Kingsley -- eric@kingsleykingsley.com -- Kingsley & Kingsley APC & Kelsey M. Peterson-More -- kelsey@kingsleykingsley.com -- Kingsley & Kingsley. Bar 20 Dairy, LLC, a California limited liability company, Defendant, represented by Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation, PC, Joseph Vidal Macias -- joseph.macias@maximintegrated.com -- Sutton Hague Law Corporation, PC, S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson, Sutton Hague Law Corporation. BAVARIA HAUS: Rodriguez Seeks Overtime Wages under FLSA ------------------------------------------------------- MIGUEL ANGEL RIBIERO RODRIGUEZ, and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, vs. BAVARIA HAUS LLC, SASA PERISIC, the Defendants, Case No. 1:18-cv-23231-FAM (S.D. Fla., Aug. 8, 2018), seeks to recover double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act, to be proven at the time of trial for all overtime wages still owing from Plaintiffs' entire employment period with Defendants or as much as allowed by the FLSA along with court costs, interest, and any other relief that this Court finds reasonable under the circumstances. According to the complaint, the Defendants willfully and intentionally refused to pay Plaintiffs' overtime wages as required by the Fair Labor Standards Act as Defendants knew of the overtime requirements of the Fair Labor Standards Act and recklessly failed to investigate whether Defendants' payroll practices were in accordance with the Fair Labor Standards Act.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865 6766 Facsimile: (305) 865 7167 E-mail: ZABOGADO@AOL.COM BILLINGS, TN: Faces Class Action Over Illegal Sales Tax ------------------------------------------------------- Darrell Ehrlick, writing for Billings Gazette, reports that all six district judges in Yellowstone County have either disqualified themselves or have been substituted in a possible class action suit against the City of Billings for collecting franchise fees on utility bills from residents. Judge Greg Pinski from the Eighth Judicial District in Great Falls will now hear the case and decide if it can proceed as a class-action suit. The case, filed by six Billings residents, is being considered as a possible class-action suit because it claims the city has illegally collected franchise fees from all ratepayers on utility bills when the city was not allowed to do so. If the class-action suit were certified and successful, the city could be on the hook for as much as $20 million in fees owed to residents. Five of the six judges in the district had disqualified themselves from the case. In doing so, they do not have to list a reason for the disqualification. However, earlier in the case, Doug James, one of two attorneys representing the city, had filed a "report" to the court showing that all six judges lived within the city limits and had paid the franchise fees as part of their bill. The city argued that because they were all possible plaintiffs if the suit were certified as a class action, they "may have a potential conflict of interest in the case" because they stood to make money by the decision. Matthew G. Monforton said that while the potential for a conflict was there, Montana law and ethics canon also gives judges a way to avoid the conflict, for example, by renouncing any monetary settlement that is reached in the case. The only other judge in the district, Don Harris, was substituted from the case after initially hearing it. Montana allows any party to the lawsuit to substitute, or "bump," a judge off a case once. The City of Billings used its substitution to remove Judge Harris. Mr. Monforton, one of two attorneys representing the residents, called the situation where five sitting judges were disqualified "unprecedented." "This makes the case more expensive and it adds cost," Mr. Monforton said. Mr. James disagreed, pointing out that Montana has only one bankruptcy judge for the entire state and the cases are often handled by videoconference or phone. "The distances involved have not delayed cases or resulted in significant additional expense," Mr. James said in a written response to Gazette questions. If the case were to go to trial, it would likely be held in Billings, and Judge Pinski would travel. Mr. James told The Gazette the case was originally assigned to Department 7, one of the newly created judicial districts. Two candidates, Colette Davies and Thomas Pardy, are running for that seat. Mr. James said that if Mr. Pardy is elected, it's reasonable for him to recuse himself because he is an attorney on the city's legal staff. If Judge Davies is elected, the case could then be transferred back to her from Judge Pinski in January when she's sworn in. Mr. Monforton said that his clients viewed the move as another delay and stall tactic aimed at dragging the case out longer. "There will also be a further delay because Judge Pinski will have to get himself up to speed on the case he just inherited," Mr. Monforton said. Mr. James said it's not about slowing the case, instead it's about making sure the city's interests are well represented in the case. "We are not trying to slow the process down. However, we are working to insure that the case is tried fairly for all parties," Mr. James said. Instead, Mr. James pointed out that the city sent three separate discovery requests to the plaintiffs on May 31, and is still waiting for those. He said the city has agreed to three separate extensions of time for them. Montana law allows for judges to hear cases from other districts when there is a disqualification. Usually, those cases are heard by a judge from a neighboring county. But because of workloads or other issues, any sitting district judge can be called. The next step in the case is likely to determine whether the lawsuit qualifies as a class-action, meaning many ratepayers could stand to get money back if the citizens' case is successful. "We have a strong case, and we are certain we will prevail no matter who hears the case," Mr. Monforton said. [GN] BMW OF NORTH AMERICA: Faces Ballou Suit in D. New Jersey -------------------------------------------------------- A class action lawsuit has been filed against BMW of North America LLC. SUSAN BALLOU, individually and on behalf of all others similarly situated, Plaintiff v. BMW OF NORTH AMERICA LLC; and BAYERISCHE MOTOREN WERKE AKTIENESELLSCHAFT, Defendant, Case No. 2:18-cv-11765-CCC-MF (D.N.J., July 18, 2018). The case is assigned to Judge Claire C. Cecchi and referred to Magistrate Judge Mark Falk. BMW of North America, LLC engages in the import and distribution of BMW luxury/performance vehicles. BMW of North America operates as a subsidiary of Bayerische Motoren Werke Aktiengesellschaft.[BN] The Plaintiff is represented by: Gary S. Graifman, Esq. KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. 210 Summit Avenue Montvale, NJ 07645 Telephone: (201) 391-7000 E-mail: ggraifman@kgglaw.com BRIGHT HORIZONS: Faces Delacruz Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Bright Horizons Family Solutions LLC. The lawsuit is captioned as Emanuel Delacruz on behalf of himself and all others similarly situated, the Plaintiff, v. Bright Horizons Family Solutions LLC, the Defendant, Case No. 1:18-cv-07228 (S.D.N.Y., Aug. 10, 2018). The case involves Americans with Disabilities Act violation. Bright Horizons is a United States–based child-care provider and is the largest provider of employer-sponsored child care.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299 6612 Facsimile: (929) 575 4195 E-mail: joseph@cml.legal BRIGHT HOUSE: Stephan Sliwa Seeks to Certify Two Classes -------------------------------------------------------- In the lawsuit captioned STEPHAN H. SLIWA, the Plaintiff, v. BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., the Defendants, Case No. 2:16-cv-00235-JES-MRM (M.D. Fla.), the Plaintiff asks the Court for an order certifying these classes: -- Automatic Telephone Dialing Systems Class: "(1) all persons in the United States (2) who are not a customer of either defendant (3) to whose cellular telephone number (3) Defendants placed at least one non-emergency telephone call (4) using substantially the same dialing system(s) they used to telephone Plaintiff (5) within the 4-year period preceding the filing of the complaint (6) after Defendants had already documented the number as a wrong number in their records"; and -- Prerecorded Voice Class "(1) all persons in the United States (2) who are not a customer of either defendant (3) to whose cellular telephone number (3) Defendants placed at least one non-emergency telephone call (4) using a prerecorded voice (5) within the 4-year period preceding the filing of the complaint (6) after Defendants had already documented the number as a wrong number in their records". Attorneys for Plaintiff Stephan H. Sliwa: William Peerce Howard, Esq. THE CONSUMER PROTECTION FIRM, PLLC 4030 Henderson Blvd. Tampa, Florida 33629 Telephone: (813) 500-1500 E-mail: Billy@TheConsumerProtectionFirm.com - and - Keith J. Keogh KEOGH LAW LTD 55 W. Monroe, Ste. 3390 Chicago, II. 60603 Telephone: (312) 726 1092 E-mail: keith@keoghlaw.com BRISTOL BAY: Underpays Role-Players, Abikar Suit Alleges -------------------------------------------------------- ABUCAR NUNOW ABIKAR; BARKADLE SHEIKH MUHAMED AWMAGAN; ARAB MURSAL DEH; MAJUMA MADENDE; OSMAN MUSA MOHAMED; OSMAN MUSA MUGANGA; RUKIA MUSA; AND FATUMA SOMOW, individually and on behalf of all others similarly situated, Plaintiff v. BRISTOL BAY NATIVE CORPORATION; GLACIER TECHNICAL SOLUTIONS, LLC; WORKFORCE RESOURCES, LLC; and DOES 1-50, Defendants, Case No. 3:18-cv-01700-DMS-AGS (S.D. Cal., July 25, 2018) is an action against the Defendants for failure to pay overtime wages, provide accurate earning statements, pay all wages due upon termination of employment. According to the complaint, the Defendants contracted with the United States Department of Defense to help train U.S. Marines in East African, Iraqi, Afghani, Filipino and Mexican cultures of interest to the military. To this end, the Defendants employed the Plaintiffs as role-players to work in simulated villages as shopkeepers, village elders, insurgents, and other roles. The simulations teach Marines how to operate safely and effectively in counter-insurgency operations they may face in future combat or peace-keeping missions. Bristol Bay Native Corporation, through its subsidiaries, engages in oilfield and industrial service, construction, government contracting, and petroleum distribution businesses. It offers specialty services; nondestructive testing and inspection services; and construction, maintenance, industrial cleaning, power generation, and transportation services to support resource development companies. Bristol Bay Native Corporation was founded in 1971 and is based in Anchorage, Alaska. [BN] The Plaintiffs are represented by: A. Melissa Johnson, Esq. Marilynn Mika Spencer, Esq. SPENCER JOHNSON McCAMMON LLP 2727 Camino del Rio South, Suite 140 San Diego, CA 92108 Telephone: (619) 233-1313 - and - David J. Duchrow, Esq. Jill A. Piano, Esq. DUCHROW & PIANO LLP 2510 Main Street, Suite 205 Santa Monica, CA 90405 Telephone: (310) 452-4900 CALIFORNIA FIELD: Court Approves $15.4MM Class Settlement --------------------------------------------------------- The United States District Court for the District of Nevada granted Final Approval of Class Action Settlement in the case captioned DONALD ALLBAUGH, on behalf of himself and all others similarly situated, Plaintiffs, v. CALIFORNIA FIELD IRONWORKERS PENSION TRUST; BOARD OF TRUSTEES OF THE CALIFORNIA FIELD IRONWORKERS PENSION TRUST, PLAN ADMINISTRATOR OF THE CALIFORNIA FIELD IRONWORKERS PENSION TRUST, Defendants, Case No. 2:12-CV-00561-JAD-GWF(D. Nev.). Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court approves the Settlement as set forth in the Agreement, finds that said Settlement is, in all respects, fair, reasonable, adequate and in the best interests of the members of the Classes, directs that the Settlement be consummated in accordance with the terms and conditions set forth in the Agreement, and orders all Parties to take the necessary steps to effectuate the Settlement as set forth in the Agreement. The Settlement provides for a Settlement Fund including Settlement Benefits and Class Counsel's Fee Award and Case Contribution Award, in an aggregate value of $15,400,000 together with other valuable relief including revised suspension of benefit procedures. After adjustment for the Fee Award and Case Contribution Award, all of the Settlement Fund will be paid to Class members and their eligible beneficiaries as set forth in the Agreement and Plan of Allocation. The Fee Award, to be deducted from the Settlement Amount, represents attorney's fees and costs reasonably expended in prosecuting the Action. As set forth in Plaintiff's Motion for Attorneys' Fees and Costs and supporting documentation, Class Counsel's Fee Application, which consisted of a request for an amount for attorney's fees of $5,133,333.33, $320,000 in reimbursed costs, and the Case Contribution Award of $50,000 is fair, reasonable and appropriate in accordance with the standards set forth in this Circuit. The Plan of Allocation is approved as fair and reasonable. The distribution to Settlement Class members as set forth in the Plan of Allocation is final and non-appealable. As set forth in the Agreement, Defendants shall take all reasonable and diligent steps to pay all eligible Settlement Class members by the Initial Payment Date in accordance with the terms of the Agreement. The Plaintiff's Motion for Attorneys' Fees and Costs is granted. The Defendants are ordered to pay Class Counsel's attorneys' fees in the amount of $5,133,333.33, plus $320,000 in reimbursed costs, for a total payment of $5,453,333.33. A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/y7pb5n66 from Leagle.com. Donald Allbaugh, Plaintiff, represented by Jennifer Kroll , Martin & Bonnett, PLLC, pro hac vice, Kathleen J. England , Gilbert & England Law Firm, Michael D. Lore , Michael D. Lore, PC, pro hac vice & Susan Martin , Martin & Bonnett, PLLC, Phoenix, Arizona 85018, pro hac vice. California Field Ironworkers Pension Trust, Defendant, represented by George M. Kraw -- gkraw@kraw.com -- Kraw Law Group, APC, pro hac vice, Katherine McDonough -- kmcdonouhg@kraw.com -- pro hac vice, Kathleen Marie Paustian, Law Office of Kathleen M.Paustian, Michelle Lynn Steinhardt -- msteinhardt@grsm.com -- Gordon & Rees LLP, Ronald K. Alberts -- ralberts@grdm.com -- Gordon & Rees, pro hac vice, Susan L. Meyers -- smeyer@grsm.com -- Gordon Rees LLP, pro hac vice, Ashlie L. Surur -- asururl@lawhic.com -- Hall Jaffe & Clayton, LLP & Robert S. Larsen -- rlarsen@grsm.com -- Gordon & Rees LLP. Board of Trustees of the California Field Ironworkers Pension Trust, Plan Administrator of the California Field Ironworkers Pension Trust, Defendant, represented by Katherine McDonough , pro hac vice, Kathleen Marie Paustian , Law Office of Kathleen M.Paustian, Michelle Lynn Steinhardt , Gordon & Rees LLP, Ronald K. Alberts , Gordon & Rees, pro hac vice, Susan L. Meter , Gordon Rees LLP, pro hac vice, Ashlie L. Surur , Hall Jaffe & Clayton, LLP & Robert S. Larsen , Gordon & Rees LLP. CAPE CLOGS: Faces Crosson Suit in Eastern District of New York -------------------------------------------------------------- A class action lawsuit has been filed against Cape Clogs, Inc. The lawsuit is captioned as Aretha Crosson, Individually and as the representative of a class of similarly situated persons, the Plaintiff, v. Cape Clogs, Inc., the Defendant, Case No. 1:18-cv-04541 (E.D.N.Y., Aug. 10, 2018). The case alleges Americans with Disabilities Act violations. Cape Clogs, Inc. is a designer, importer, distributor and online retailer Swedish Orthopedic Clogs and Footwear from their Swedish manufacturing partner.[BN] The Plaintiff appears pro se. CARHARTT INC: Accused by Nevitt Suit of Not Paying Overtime Wages ----------------------------------------------------------------- APRIL NEVITT and JUSTIN NEVITT, on Behalf of Themselves and All Others Similarly-situated v. CARHARTT, INC., Case No. 4:18-cv-00126-JHM-HBB (W.D. Ky., August 2, 2018), accuses the Defendant of not paying employees overtime for all work performed in excess of 40 hours per week. Carhartt, Inc., is a Michigan For-Profit Corporation with its principal office in Dearborn, Michigan. Carhartt sells jackets and other clothing, and operates distribution facilities, including one in Hanson, Kentucky, for the purpose of distributing its clothing products.[BN] The Plaintiffs are represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER, PLLC P.O. Box 869 Madisonville, KY 42431 Telephone: (270) 213-1303 E-mail: MFoster@MarkNFoster.com CARING PROFESSIONALS: Can't Compel Arbitration in HHCs' Suit ------------------------------------------------------------ Judge Shlomo S. Hagler of the New York County Supreme Court denied the Defendant's motion to compel arbitration and stay the action in the case, LYUDMYLA KONSTANTYNOVSKA and NATASHA SEVERIN, individually and on behalf of all other persons similarly situated who were employed by CARING PROFESSIONALS, INC., Plaintiffs, v. CARING PROFESSIONALS, INC., Defendant, Docket No. 159883/2016 (N.Y. Sup.). In the class action complaint, Konstantynovska and Severin, on behalf of themselves and other similarly situated home health care attendants, allege that they were not paid the wages and benefits that they were entitled to while working for their former employer, Caring Professionals. Konstantynovska initiated the class action by filing a complaint on Nov. 23, 2016. The Plaintiffs are home health care attendants formerly employed by Caring Professionals, a business that provides nursing and home health aide services at the residences of its clients. The Complaint states that all of the Plaintiffs in the putative class ceased working for Defendant on or before Dec. 1, 2016. Specifically, it indicates that Konstantynovska worked as a home health care attendant from Oct. 24, 2012 through Nov. 7, 2016, and that Severin worked for Defendant from August 2011 through June 2016. The first four causes of action in the Complaint allege that the Defendant violated various provisions of the New York Labor Law ("NYLL") and the New York Codes, Rules, and Regulations ("NYCRR") when it failed to pay the Plaintiffs the statutory minimum wage, overtime compensation, "spread of hours" compensation, and full wages due and when it failed to reimburse the Plaintiffs for supplies purchased for the Defendant's benefit. The fifth cause of action, grounded in breach of contract, alleges that the Plaintiffs, as third party beneficiaries of the Defendant's contract(s) with government agencies to pay wages as required by the NY Health Care Worker Wage Parity Act, are entitled to relief for the breach of this contractual obligation, plus interest. In the sixth cause of action, the Plaintiffs allege that the Defendant breached the "City Service Contract(s)" by not paying them the living wages, health benefits or health benefit supplements, which were incorporated into this contract for their benefit. In response to the Complaint, the Defendant sent a letter to the president of the Plaintiffs' union, Local 713 I.B.O.T.U, U.M.D., I.L.A., AFL-CIO, and their counsel, requesting that the Plaintiffs withdraw their complaint and submit their disputes to the mandatory grievance and arbitration procedure set forth in the collective bargaining agreement ("CBA") as set forth in an MOA dated Dec. 13, 2016. When the Plaintiffs failed to withdraw the Complaint, the Defendant made the instant motion, seeking to compel arbitration. The Defendant states that all putative class action members are or were union members who are represented by Local 713, and that Caring Professionals and Local 713 entered into the CBA, which governs various aspects of the Plaintiffs' employment with the Defendant. On Dec. 13, 2016, the parties entered into a modification and amendment of the CBA, entitled memorandum of agreement ("MOA"), requiring employees to submit wage and hour claims, including claims alleging violations of the NYLL and the New York Home Care Worker Wage Parity Law, to an exclusive grievance and arbitration process. The Defendant argues that the MOA, coupled with the CBA, govern the employment relationship between the Plaintiffs and the Defendant, and that the MOA is applicable to all employees covered by the CBA, including the Plaintiffs. In the alternative, it argues that the proceedings should be stayed so that an arbitrator can rule on whether the Plaintiffs' claims are appropriate for arbitration. In opposition, the Plaintiffs argue that, as former employees, they cannot be bound to the MOA as it was entered into after they ceased working for the Defendant. They note that the MOA was executed on Dec. 13, 2016. Even if, as the Defendant states, Konstantynovska's last date of employment was Dec. 27, 2016 and not in November 2016, absent ratification, she cannot be bound to the MOA. The Plaintiffs note that the MOA contained new language pertaining to arbitration requirements that had never been included in any prior CBA agreements. Judge Hagler finds that the arbitration provision applicable to the Plaintiffs, found in the 2016 CBA, limited the grievance and arbitration process to disputes about the misinterpretation or misapplication of a specific written term in the CBA. The Plaintiffs' complaint does not concern allegations about the interpretation of the CBA, but alleges various statutory violations and breach of contract. Despite the presumption in favor of arbitration, it is well settled that Courts will not compel arbitration of statutory claims where the CBA in question did not effectuate a "clear and unmistakable" waiver of those claims. As the terms in the 2016 CBA do not specifically provide that the Plaintiffs' claims alleging violations of the NYLL and Wage Parity Law, among others, are subject to arbitration, the 2016 CBA does not effectuate a "clear and unmistakable" waiver as to these claims. Without a valid and compulsory arbitration provision, the Judge holds that the Plaintiffs cannot be compelled to arbitrate. Accordingly, he finds that the parties did not have a valid agreement to arbitrate the Plaintiffs' claims in the class action. Judge Hagler denied the Defendant's motion to compel arbitration and stay the action. He directed the Defendant to serve an answer to the complaint within 20 days after service of a copy of the Order with notice of entry. A full-text copy of the Court's June 29, 2018 Decision and Order is available at https://is.gd/6rRrCA from Leagle.com. CAVALRY PORTFOLIO: Court Stays K. Krejci's TCPA Action ------------------------------------------------------ The United States District Court for the Southern District of California granted Defendant's Motion to Stay the case captioned KEVIN KREJCI, Plaintiff, v. CAVALRY PORTFOLIO SERVICES, LLC, Defendant, Case No. 3:16-cv-0211-JAH-WVG (S.D. Cal.), pending the resolution of cross-motions for summary judgment in the related case of Horton v. Cavalry Portfolio Services, LLC, Case No. 3:13-CV-00307-JAH-WVG (S.D. Cal.). The Plaintiff filed the operative class action complaint asserting that Defendant violated the Telephone Consumer Protection Act (TCPA). Specifically, the complaint alleges that the Defendant placed calls to the Plaintiff, and similar consumers, utilizing impermissible automated technology, otherwise known as an automatic telephone dialing system (ATDS). A court's power to stay proceedings is incidental to its inherent power to control the disposition of its cases in the interests of efficiency and fairness to the court, counsel, and litigants. In determining whether a stay is appropriate, a district court must weigh competing interests and maintain an even balance. Landis, 299 U.S. at 254-55. Among the competing interests are: (1) the possible damage which may result from the granting of a stay, (2) the hardship or inequity which a party may suffer in being required to go forward, and (3) the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. The Defendant contends that the issue to be decided by this Court in the Horton is a crucial, disputed and potentially dispositive issue in this case. The Defendant further contends that a limited stay in this case will prevent hardship to both parties by avoiding the need for expensive, time-consuming, and duplicative fact and expert discovery which has already been conducted in Horton. The Plaintiff opposes the motion, arguing that a stay in this case will not simplify the issues or conserve the judicial resources because discovery in this case will be required regardless of how this Court rules on the Horton summary judgment motion. The Plaintiff contends that another stay will result in a significant hardship to the Plaintiff's interest in resolving his claims expeditiously. Having considered and weighed the Landis factors, the Court finds that a stay is appropriate in this case. First, the Plaintiff fails to demonstrate any potential damage which may result from a limited stay. Instead, the gravamen of the Plaintiff's opposition questions the benefits of any proposed stay, arguing that the Horton summary judgment findings may be inapplicable because the telephone system used to call the Plaintiff is still a mystery. The Plaintiff does maintain that he will suffer significant hardship if the stay is granted, however, such a claim is too conclusory in nature to be persuasive absent more detail or factual support. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/ycnro8lw from Leagle.com. Kevin Krejci, Plaintiff, represented by Sergei Lemberg, Lemberg Law, LLC, pro hac vice & Trinette G. Kent -- tkent@kentlawpc.com -- Kent Law Offices. Cavalry Portfolio Services, LLC, Defendant, represented by Tomio B. Narita -- tnarita@snllp.com -- Simmonds & Narita LLP, Jeffrey Alan Topor -- jtopor@snllp.com -- Simmonds and Narita LLP & Jennifer Lawdan Yazdi -- jyazdi@snllp.com -- Simmonds & Narita LLP. CENTURYLINK INC: Gainey McKenna Files Derivative Action ------------------------------------------------------- Gainey McKenna & Egleston has filed a derivative action on behalf of current stockholders of CenturyLink, Inc. ("CenturyLink" or the "Company") because of alleged breaches of fiduciary duty by its board of directors (the "Board"). The new action was filed in the Western District of Louisiana, Case No. 3-18-cv-870. A prior derivative action filed by Gainey McKenna & Egleston on behalf of CenturyLink and against its directors was voluntarily dismissed to allow for a demand upon the Board to take certain requested actions. That voluntarily dismissed action was also filed in the Western District of Louisiana, Case No. 3-17-cv-1177. The Complaint in the recently filed action alleges that the Board violated its fiduciary duties by allowing CenturyLink to make false and misleading statements and/or fail to disclose that: (1) CenturyLink's policies allowed its employees to add services or lines to accounts without customer permission, resulting in millions of dollars in unauthorized charges to CenturyLink customers; (2) CenturyLink's revenues were the product of illicit conduct and unsustainable; (3) the foregoing illicit conduct was likely to subject CenturyLink to heightened regulatory scrutiny; and (4) as a result, CenturyLink's public statements were materially false and misleading at all relevant times. The Complaint further alleges that the failure of the Board to respond to the plaintiff's demand to take action to rectify these breaches was itself a breach of its fiduciary duty. If you wish to discuss your rights or interests regarding this class action please; Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. Gainey McKenna & Egleston Telephone: (212) 983-1300 Website: http://www.gme-law.com Email: tjmckenna@gme-law.com gegleston@gme-law.com. [GN] CHC GROUP: $586K Attorney's Fees Awarded in Securities Fraud Suit ------------------------------------------------------------------ The United States District Court for the Southern District of New York granted Plaintiffs' Motion for Attorney's Fees in the case captioned ERROL RUDMAN, et al., Plaintiffs, v. CHC GROUP LTD., et al., Defendants, No. 15-cv-3773 (LAK)(S.D.N.Y.). The Plaintiffs brought these damages actions under the Securities Act of 1933 claiming that the registration statement issued in connection with the initial public offering of shares of CHC Group Ltd. (CHC) contained false and misleading statements. Less than a month after the filing of the notice of appeal, the parties notified the Court of Appeals that they had reached a settlement in principle and withdrew the appeal from active consideration pending finalization of settlement papers and an application to this Court to approve the settlement. The terms of the settlement are straightforward. CHC's insurance carrier is paying $3.85 million in cash. The Kirby firm, suddenly joined by the Kahn firm, now seek attorneys fees equal to one third of the settlement fund, or $1,283,333.33 approximately 33.33 percent of the settlement fund. Their combined lodestar allegedly is $725,913.25, which is said to reflect 1,259.16 hours of work multiplied by the current billing rates of the attorneys and other staff who worked on the case. The Kirby Firm's Lodestar Reflects an Unreasonably High Number of Hours The Kirby firm achieved a benefit for the class, it obtained a small settlement in an extremely weak case. Under the common benefit theory, it is entitled to reasonable compensation for having done so. The Court begins its analysis with the Kirby firm's claimed lodestar. The Kirby firm's claimed lodestar seeks compensation for 1138.76 hours, of which 769.01 are attributable to lawyers and paralegals. The hourly rates claimed for these individuals range from $210 to $985 per hour. The Court finds those hourly rates reasonable in all the circumstances. But it has substantial concerns with respect to the hours expended by those lawyers and paralegals. Lawyers and Paralegals The Court cannot justify compensating it for about 100 hours of work spent on an essentially boilerplate motion. Another category lumped together time spent on the motion to dismiss the amended complaint and time spent on case management without breaking those activities down and without providing contemporaneous time records. The firm says it spent almost 210 hours on these tasks. The perfunctory justification for those hours is that the firm spent considerable time researching the impact of CHC's bankruptcy on the Action in addition to responding to the motion to dismiss. But counsel have given no details on what that research involved and why it warranted so much time. Nor is there any explanation of how much time was spent on case management or what that entailed. This presents a difficulty. The Court acknowledges that responding to the motion to dismiss was a critically important task that deserved care and effort. But it has no basis for concluding how much time was spent on that motion or, for that matter, on bankruptcy research and case management, let alone why that time was justified. Plaintiffs' counsel therefore have failed to persuade the Court that an efficient attorney would have engaged in similar time expenditures especially considering the failure to justify time spent conducting bankruptcy research and the failure to offer any description of whatever else case management might entail. The motion to dismiss justifies a significant amount of time, to be sure. But not 210 hours. The 31 hours attributed to the appeal are even more difficult to justify. Plaintiffs filed the notice of appeal on December 7, 2016. They agreed to dismiss the appeal not much more than one month later. They filed no brief. And plaintiffs' counsel has offered no explanation as to why 31 hours were spent on a notice of appeal, a notice of appearance, and a stipulation to withdraw the case. Finally, the preliminary motion for settlement and class certification, final settlement approval, and post-settlement stages account for 137.51 hours of work. Each of these motions was unopposed. Each of these tasks was something plaintiffs' counsel, as experienced securities class action litigators, surely have performed many times over. And again, plaintiffs' counsel offered to the Court only a bare-bones description of the task and scant justification for this large request. It is hard to believe that all of these hours were spent usefully and reasonably. Analysts and Administrative Clerks In addition to the time invested by lawyers and paralegals, the Kirby firm includes in its proposed lodestar 369.75 hours attributed to senior analysts (360.75 hours) and administrative clerks (9 hours). It now is well established that attorneys' fee awards should reflect reasonable compensation for the work product of attorneys. In appropriate cases, such awards may include compensation for the work of paralegals and other non-lawyers. The more difficult question is how the work of non-lawyers is to be valued in determining the overall attorneys' fee. As the Supreme Court has said with respect to paralegals, albeit in a Section 1988 case, the prevailing practice in a given community is to govern whether paralegals' time is billed separately, and whether it is billed at cost or at market rates. At this point, it is well known that paralegals, at least in this market, customarily are billed by law firms for their time at hourly rates. That is reflected in the Court's ruling here with respect to the Kirby firm's paralegals. But the practices of the Bar concerning senior analysts and administrative clerks, assuming there are any general practices, is unknown to the Court and certainly not established by the Kirby firm's papers. Accordingly, the Court declines to include the hours and rates advanced by the Kirby firm. Plaintiffs Have Not Established Any Basis for a Fee Award to the Kahn Firm The Kahn firm, which was not chosen as lead counsel, seeks compensation for 120.4 hours of work, including 33.90 hours for its lead plaintiff motion. The Court sees no basis at all for compensating the Kahn firm for the time devoted to its unsuccessful motion to have its client appointed lead plaintiff and itself appointed as lead counsel. Although the motion was entirely appropriate under the PSLRA, it was filed for the benefit of the Kahn firm, it was unsuccessful and it accomplished nothing at all for the members of the alleged class. That time contributed nothing to the $3.85 million common fund that eventually was created in this case. The Court declines in these circumstances to make any fee award to the Kahn firm. The Requested Fee Award Would Be An Unreasonably High Percentage of the Fund The report indicating a median fee award of 30 percent is slightly more helpful. But, as this Court has observed before, the NERA report shows higher fee awards than other reports have found. For example, a different study found that from 1993-2003 the median fee was 25 percent in cases with settlements between $2.8 and $5 million. And fee awards reportedly have been trending downward since then. Therefore, the Court finds that a fee award of one third of the fund a percentage higher even than the median number given by the plaintiff would be an unreasonably high percentage of the fund, particularly given the almost trivial per share recovery. The Court's proposed award based on a its revision of the lodestar is approximately 15.2 percent of the fund. Although that percentage is lower than the median award regardless of which study is cited, it is not so much lower than the (likely less than) 25 percent median at least one study has found. The Court finds that a fee award of $586,047.76 would better balance the interests of the class and adequate compensation of counsel. The Request for Reimbursement of Expenses The Plaintiffs' counsel seeks $12,723.86 in reimbursement of expenses. The majority of the expenses are attributable to mediation and online legal research fees. Others include filing fees and travel expenses. The Court finds nothing objectionable. That is granted. The Plaintiffs' motion for attorneys' fees and reimbursement of expenses is granted to the extent that the Kirby firm is hereby awarded an aggregate amount of $598,771.62. It is denied in all other respects. A full-text copy of the District Court's July 23, 2018 Memorandum Opinion is available at https://tinyurl.com/y7hyu6d9 from Leagle.com. Peter McCrory, Individually and on behalf of all others similarly situtated, Plaintiff, represented by Thomas Livezey Laughlin, IV -- TLAUGHLIN@SCOTT-SCOTT.COM -- Scott + Scott, L.L.P. Errol Rudman & Rudman Partners LP, Movants, represented by Ira M. Press -- ipress@kmllp.com -- Kirby McInerney LLP. CHC Group Ltd., William J. Amelio, Joan S. Hooper, Rebecca Camden, William E. Macaulay, Jonathan Lewis & Kenneth W. Moore, Defendants, represented by Andrew J. Levander -- andrew.levander@dechert.com -- Dechert, LLP, Neil A. Steiner -- neil.steiner@dechert.com -- Dechert, LLP, Sarah Dean Lyons -- neil.steiner@dechert.com -- Dechert, LLP & Andrew Aaron Spievack -- andrew.buck@troutman.com -- Dechert, LLP. J.P. Morgan Securities, LLC, Barclays Capital Inc., UBS Securities LLC, HSBC Securities (USA) Inc., RBC Capital Markets, LLC, Wells Fargo Securities, LLC, BNP Paribas Securities Corp., Standard Bank Plc, Cormark Securities (USA) Ltd., Cowen and Company, LLC, Raymond James & Associates, Inc., Simmons & Company, International & Tudor, Pickering, Holt & Co. Securities, Inc., Defendants, represented by Charles S. Duggan -- charles.duggan@davispolk.com -- Davis Polk & Wardwell & Andrew Ditchfield -- andrew.ditchfield@davispolk.com -- Davis Polk & Wardwell. CHICAGO ATHLETICS: Sued Over Members' Rewards Program Termination ----------------------------------------------------------------- CBS reports that a class action lawsuit has been filed against Chicago Athletic Clubs. The lawsuit alleges that the eight clubs owned by the company terminated their members' rewards programs without notice on July 16. Members in the rewards program were denied when they tried to redeem points they had accrued, according to allegations made in the lawsuit. The complaint also alleges consumer fraud and breach of contract. The Chicago Athletic Clubs group includes Bucktown Athletic Club, Evanston Athletic Club, Lakeview Athletic Club, Lincoln Park Athletic Club, Lincoln Square Athletic Club, Webster Place Athletic Club, West Loop Athletic Club and Wicker Park Athletic Club. [GN] CIVEO CORP: Philip Suhr Class Action Dismissed ---------------------------------------------- Civeo Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 27, 2018, for the quarterly period ended June 30, 2018, that the putative class action suit entitled, Philip Suhr v. Civeo Corporation, et al., has been dismissed. On January 26, 2018, a putative class action captioned Philip Suhr v. Civeo Corporation, et al. was filed in the U.S. District Court for the Southern District of Texas against Civeo and members of its board of directors, in connection with the Noralta acquisition. The complaint alleged that Civeo filed a materially incomplete and misleading proxy statement in connection with the Noralta acquisition, in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and Rule 14a-9 of the Securities and Exchange Commission. The complaint originally sought injunctive relief, including to enjoin the shareholder vote on the Noralta acquisition as well as the acquisition itself, damages and an award of attorneys' fees, in addition to other relief. On February 5, 2018, the plaintiff filed a motion for a preliminary injunction (the "Preliminary Injunction Motion") to prevent the shareholder meeting on March 28, 2018 from taking place. On March 22, 2018, the plaintiff withdrew the Preliminary Injunction Motion on the grounds that additional disclosures contained in Civeo's March 22, 2018 Current Report on Form 8-K, which Civeo believes were immaterial, mooted the claims raised in the plaintiff's complaint and asserted as the basis for the Preliminary Injunction Motion. In April 2018, Civeo paid a mootness fee in a nominal amount, and the case was dismissed. On April 2, 2018, Civeo announced that it has closed its acquisition of 100% of the equity interests of Noralta Lodge Ltd. Civeo Corporation offers workforce accommodation, logistics, and facility management services to the natural resource industry in Canada, Australia, the United States, and internationally. The company is headquartered in Houston, Texas. CLACKAMAS COUNTY, OR: Court Narrows Claims in Strip Search Suit --------------------------------------------------------------- The United States District Court for the District of Oregon granted in part and denying in part Defendant’s Motion to Dismiss in the case captioned WILLIAM DILLON; SCOTT GRAUE; DAVID HODGES; ALBERT LOVE; and JAYSON SAYLOR, individually, and on behalf of a class of others similarly situated, Plaintiffs, v. CLACKAMAS COUNTY and CRAIG ROBERTS, both individually and in his official capacity as Sheriff, Defendants, Case No. 3:14-cv-820-YY. (D. Or.). United States Magistrate Judge Youlee You issued Findings and Recommendation in this case on May 2, 2018. The Plaintiffs, former inmates at Clackamas County Jail ("CCJ"), bring this class action against the Defendants for alleged violations of the Plaintiffs' state statutory and federal constitutional rights arising from group strip searches at CCJ. Judge You recommended that (1) the Defendants' motion to dismiss for lack of jurisdiction be denied; (2) the Defendants' motion for summary judgment be granted in part and denied in part; (3) the Plaintiffs' motion to certify the class be granted in part and denied in part; and (4) the Plaintiffs' motion for partial summary judgment be denied. October 12, 2010 Emergency Shakedown The Plaintiffs object to Judge You's finding that there was no genuine question of material fact that the October 12, 2010 emergency shakedown search was unreasonable. When there is a possibility that a prisoner has access to a weapon, strip searches have a legitimate penological purpose, and the Plaintiffs bear the burden of showing that prison officials intentionally used exaggerated or excessive means to enforce security. Judge You found that the Plaintiffs failed to counter the Defendants' evidence that the emergency search was conducted because a possible weapon, in the form of a piece of metal, was unaccounted for. Judge You also found that the Plaintiffs presented no evidence that the Defendants' response to the discovery of the missing metal was exaggerated or excessive. Routine Return-From-Court Strip Searches Both the Plaintiffs and the Defendants object to Judge You's finding that, based on the record, it was impossible to determine whether the daily return-from-court visual strip searches were unreasonable under the Fourth Amendment, and her recommendation that the Court deny both motions for summary judgment on this claim. The Plaintiffs' objections to this finding are difficult to parse. The Plaintiffs appear to argue that the record was sufficient to justify summary judgment for the Plaintiffs because (1) the Defendants' strip search practices were inconsistent with their own regulations; and (2) it is uncontested that the opportunity existed for staff members not involved in the searches to observe naked inmates. Local laws and regulations may create privacy requirements for strip searches that are more demanding than those imposed by the Constitution. That an agency fails to follow its own standards, therefore, does not render its actions unconstitutional as a matter of law. Similarly, that the privacy panels allowed for the opportunity for staff members not involved in searches to observe the inmates does not render the search practices unconstitutional as a matter of law. The reasonableness test articulated in Bell (Bell v. Wolfish, 441 U.S. 520, 559 1979)) and Michenfelder (Michenfelder v. Sumner, 860 F.2d 328, 332-333 (9th Cir. 1988)).is a highly fact-specific inquiry. Judge You correctly concluded that a further showing regarding to whom and how often the naked inmates were actually exposed to third parties is necessary to demonstrate that the scope, manner, justification and place of the search practices were so unreasonable as to violate the Fourth Amendment. ORS Section 30.865 The Defendants object to Judge You's finding that the Plaintiffs' claim for invasion of privacy in violation of ORS Section 30.865, which was alleged for the first time in the Plaintiffs' second amended complaint, relates back to the Plaintiffs' original complaint and is thus not barred by the statute of limitation. The Court agrees with Judge You that conduct giving rise to the Plaintiffs' statutory claim arises from the exact same conduct alleged in the Plaintiffs' original complaint. The Plaintiffs' statutory claim therefore relates back to the filing date of the Plaintiffs' original complaint and is not time-barred. Accordingly, the Defendants' Motion for Summary Judgment is granted as to the plaintiffs' claims for alleged constitutional violations based on the emergency shakedown search of October 10, 2012 and granted as to all claims under the Eighth amendment. Otherwise, Defendants' Motion for Summary Judgment is denied. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/ya6qfku8 from Leagle.com. William Dillon, Individually, on behalf of a class of others similarly situated, Scott Vincent Graue, Individually, on behalf of a class of others similarly situated, David Michael Hodges, Individually, on behalf of a class of others similarly situated, Jayson Saylor & Albert Love, Plaintiffs, represented by Leonard Randolph Berman, Law Office of Leonard R. Berman. Clackamas County & Craig Roberts, both individually and in his official capacity as Sheriff, Defendants, represented by Stephen Lewis Madkour, Clackamas County Counsel & Alexander Gordon, Clackamas County Counsel. CLIENT SERVICES: Faces Kirilova Suit in Eastern Dist. of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Client Services, Inc. The lawsuit is captioned as Kristina Kirilova on behalf of herself and all others similarly situated, the Plaintiff, v. Client Services, Inc., the Defendant, Case No. 2:18-cv-04538 (E.D.N.Y., Aug. 10, 2018). The case involves Fair Debt Collection Act violation. Client Services operates as a customer relationship management company that offers a suite of accounts receivable management and business processing.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Telephone: (631) 335 1107 E-mail: mpash@verizon.net COLLECTION ANALYST: Class Settlement Has Prelim Approval -------------------------------------------------------- The United States District Court for District of Nebraska granted Plaintiffs' Motion for Preliminary Approval of Class Action Settlement in the case captioned LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff, v. THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants, No. 8:17CV229 (D. Nev.). This matter came on before the United States District Court Judge, upon motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for preliminary approval of the proposed class action settlement (Proposed Settlement) of the above-described action in a Settlement Agreement. The agreements, terms, and conditions of the parties' Proposed Settlement, as embodied in the Agreement and the Exhibits attached hereto, are preliminarily approved pending a final hearing on the Proposed Settlement as provided herein. The following are the Settlement Classes, and their members are Class Members. In support of this Order, and for settlement purposes only, the Court finds as follows: A. That there are a sufficient number of Class Members to satisfy the numerosity requirement of Federal Rule of Civil Procedure 23(a)(1). B. There are questions of law and fact common to all Class Members. Such includes, but is not necessarily limited to: Whether Complaints in the form of Exhibits A to Plaintiff's Complaint (Filing No. 1-1) violated the Fair Debt Collection Practices Act and/or Nebraska Consumer Protection Act. The Plaintiff's claims are typical of the claims of the members of the Settlement Classes. The court finds and determines that the proposed notice by Mail given to Class Members in accordance with paragraph 5 herein, which provides all case information, constitutes the best notice practicable under the circumstances taking into account the nature of the claims and facts presented and size of the class; that it constitutes due and sufficient notice of the Proposed Settlement and the matters set forth in said notice to all persons entitled to receive notice; and that it fully satisfies the requirements of due process and of Fed.R.Civ.P. 23. The court approves Class Settlement.com www.class-settlement.com of 20 Max Avenue, Hicksville, NY (11801) (Class Settlement Administrator) as class administrator herein. Any Class Member who desires to request exclusion from the Settlement Class, must submit a written Statement of Exclusion in the manner required by the NOTICE OF SETTLEMENT and mailed NO LATER THAN 90 days after the date of this Order by submitting a Request for Exclusion to the Class Settlement Administrator at the following address: Powers v. TCA Settlement c/o Class-Settlement.com 20 Max Avenue Hicksville, NY 11801 A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/ycuqd4vv from Leagle.com. Laura Powers, on behalf of herself and all others similarly situated, Plaintiff, represented by O. Randolph Bragg , HORWITZ, HORWITZ LAW FIRM, Pamela A. Car , CAR, REINBRECHT LAW FIRM & William L. Reinbrecht , CAR, REINBRECHT LAW FIRM. The Collection Analyst, Inc., Defendant, represented by John C. Ochoa -- jochoa@salawus.com -- SMITH, AMUNDSEN LAW FIRM, pro hac vice, Michael T. Gibbons -- mgibbons@woglaw.com -- WOODKE, GIBBONS LAW FIRM & Patrick M. Heng , JEFFREY WELCH LAW FIRM. Judith D. Retelsdorf, Defendant, represented by Patrick M. Heng , JEFFREY WELCH LAW FIRM. COLUMBIA PIPELINE: Arbitrage Fund Suit Moved to S.D. New York ------------------------------------------------------------- The class action lawsuit titled THE ARBITRAGE FUND, on behalf of itself and all others similarly situated, the Plaintiff, vs. COLUMBIA PIPELINE GROUP, INC., ROBERT C. SKAGGS, JR., STEPHEN P. SMITH, GLEN L. KETTERING, SIGMUND L. CORNELIUS, MARTY R. KITTRELL, W. LEE NUTTER, DEBORAH S. PARKER, LESTER P. SILVERMAN, and TERESA A. TAYLOR, the Defendants, Case No. 1:18-cv-00861, was from the U.S. District Court for the District of Delaware, to the U.S. District Court for the Southern District of New York (Foley Square) on Aug. 8, 2018. The Southern District of New York Court Clerk assigned Case No. 1:18-cv-07127-GBD to the proceeding. The case is assigned to the Hon. Judge George B. Daniels. This class action is brought on behalf of all Columbia Pipeline shareholders, except Defendants and their affiliates, (i) who held common shares as of May 18, 2016, the record date for Columbia Pipeline shareholders to be eligible to vote on the merger between Columbia Pipeline and TransCanada Corporation and (ii) who held common shares through July 1, 2016, the day the merger closed. Columbia Pipeline, together with its subsidiaries, owns, operates, and develops a portfolio of pipelines, storage, and related midstream assets.[BN] Attorneys for Arbitrage Fund on behalf of itself and all others similarly situated: Andrew J Entwistle, Esq. Jessica A. Margulis, Esq. Jonathan H. Beemer, Esq. Vincent Roger Cappucci, Esq. ENTWISTLE & CAPPUCCI LLP (NYC) 299 Park Avenue, 20th Floor New York, NY 10171 Telephone: (212) 894 7200 Facsimile: (212) 894 7272 E-mail: aentwistle@entwistle-law.com jmargulis@entwistle-law.com jbeemer@entwistle-law.com cappucci@entwistle-law.com - and - Brian E. Farnan, Esq. Michael J. Farnan, Esq. FARNAN LLP 919 North Market Street, 12th Floor Wilmington, DE 19801 Telephone: (302) 777 0300 Facsimile: (302) 777 0301 E-mail: bfarnan@farnanlaw.com mfarnan@farnanlaw.com CONNORS & FONG: Faces Crosson Suit in Eastern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Connors, Fong and Mancuso, Inc. The lawsuit is captioned as Aretha Crosson, Individually and as the representative of a class of similarly situated persons, the Plaintiff, v. Connors, Fong and Mancuso, Inc. doing business as: Cliffs Shoes by White Mountain, the Defendant, Case No. 1:18-cv-04540 (E.D.N.Y., Aug. 10, 2018). The case alleges Americans with Disabilities Act violations. Connors, Fong And Mancuso, Inc. manufactures and sells women's shoes under the brand name of White Mountain by Connors.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Telephone: (917) 373 9128 Facsimile: (718) 504 7555 E-mail: shakedlawgroup@gmail.com CONSTAR FINANCIAL: Faces Stehly Suit in Eastern Dist. of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Constar Financial Services, LLC. The case is captioned as Mark Stehly, individually and on behalf of all others similarly situated, the Plaintiff, vs. Constar Financial Services, LLC, the Defendant, Case No. 2:18-cv-04471 (E.D.N.Y., Aug. 8, 2018). Constar, an affiliate company of Empereon Marketing, LLC, provides comprehensive consumer contact and account support solutions that span the entire lifecycle of a consumer account.[BN] The Plaintiff appears pro se. COTIVITI HOLDINGS: Faces Shareholder Class Action in Delaware ------------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation, notifies investors that a class action lawsuit has been commenced in the United States District Court for the District of Delaware on behalf of all common stockholders of Cotiviti Holdings, Inc. (NYSE: COTV) ("Cotiviti" or the "Company") opposing the proposed acquisition of Cotiviti by Veritas Capital. The complaint seeks relief on behalf of the named plaintiff and all other similarly situated shareholders of Cotiviti and asserts that the Company's Board of Directors breached their fiduciary duties by failing to disclose certain material information that is necessary for shareholders to properly assess the fairness of the proposed merger. If you currently own common stock of Cotiviti and would like to learn more about this lawsuit and your ability to participate as a plaintiff, without cost or obligation to you, please contact Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415-6616. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. [GN] CP OPCO: Asks Court to Deny Class Certification in McDonald Suit ---------------------------------------------------------------- In the lawsuit captioned DAVID MCDONALD, on behalf of himself and all others similarly situated, the Plaintiff, v. CP OPCO, LLC, dba CLASSIC PARTY RENTALS; INSPERITY PEO SERVICES, L.P; APOLLO GLOBAL MANAGEMENT, LLC; APOLLO CENTRE STREET PARTNERSHIP, L.P.; APOLLO FRANKLIN PARTNERSHIP, L.P.; APOLLO CREDIT OPPORTUNITY FUND III AIV I LP; APOLLO SK STRATEGIC INVESTMENTS, L.P; APOLLO SPECIAL OPPORTUNIITIES MANAGED ACCOUNT, L,P.; APOLLO ZEUS STRATEGIC INVESTMENTS, L.P.; and DOES 1-20, the Defendants, Case No. 4:17-cv-04915-HSG (N.D. Cal.), the Defendants will move the Court on September 20, 2018, for an order preemptively denying certification to a portion of a class alleged in Plaintiff's second amended complaint. Attorneys for Insperity Peo Services, L.P.: John M. Polson, Esq. Mark J. Jacobs, Esq. Christopher M. Ahearn, Esq. Lauren Stockunas, Esq. FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, CA 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 E-mail: jpolson@fisherphillips.com mjacobs@fisherphillips.com cahearn@fisherphillips.com lstockunas@fisherphillips.com CUPERTINO HEALTHCARE: Faces Class Action Over Understaffing ----------------------------------------------------------- Khalida Sarwari, writing for The Mercury News, reports that a class-action lawsuit has been filed against Cupertino Healthcare & Wellness Center and more than a dozen other skilled nursing homes accused of deliberately running an understaffed business to make a bigger profit. The 24-hour skilled nursing home and rehab facility on Voss Avenue is one of four Bay Area businesses named in the suit; the other three are in Hayward, Novato and San Rafael. All four, in addition to 11 others sued, are owned by Shlomo Rechnitz, who controls 60 skilled nursing facilities throughout the state, according to a recent press statement announcing the lawsuit. The suit was filed in June on behalf of Robert Barbendel, a resident of Cupertino Healthcare & Wellness Center, in Los Angeles County Superior Court by Garcia, Artigliere & Medby and the Arns Law Firm. The 98-page complaint accuses Mr. Rechnitz and the facilities' management of deliberately violating laws that protect nursing home residents and taking on new patients without disclosing they didn't have the requisite staff to provide adequate care. The alleged transgressions took place in the last three years, according to the suit, which includes a graph submitted to the Department of Public Health showing a discrepancy between the number of hours the facilities' nurses worked and number of hours expected of them. The reported hours do not take into account state-mandated rest breaks, the suit alleges, which means that a nurse who was put down for an eight-hour shift, for example, in reality worked for seven hours and 40 minutes. When reached for comment on July 27, a manager at Cupertino Healthcare & Wellness Center hung up the phone. [GN] CVS PHARMACY: Deadline to Respond to Calif. Suit Extended --------------------------------------------------------- The United States District Court for the Northern District of California, San Francisco Division, issued an Order continuing Deadline to Respond to Complaint in the case captioned JOHN DOE ONE, JOHN DOE TWO, JOHN DOE THREE, JOHN DOE FOUR and JOHN DOE FIVE on behalf of themselves and all others similarly situated, Plaintiffs, v. CVS PHARMACY, INC.; CAREMARK, L.L.C.; CAREMARK CALIFORNIA SPECIALTY PHARMACY, L.L.C.; NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK; LOWE'S COMPANIES, INC.; TIME WARNER, INC.; and DOES 1-10, Inclusive, Defendants, Case No. 3:18-cv-1031-EMC (N.D. Cal.). Plaintiffs John Doe One, John Doe Two, John Doe Three, John Doe Four, and John Doe Five (Plaintiffs) and Defendant Warner Media, LLC, as successor in interest to Time Warner Inc. (Warner Media) stipulate as follows, inter alia: Counsel for Warner Media has been only recently retained and were not previously involved in this litigation, and further given that Attorney Bernstein will be out of the country through August 2, 2018, Warner Media and its counsel require additional time to review the pleadings and the proceedings in the case thus far, and determine an appropriate response; Extending the deadline for Warner Media to respond to the operative complaint to August 10, 2018, and if Warner Media elects to file a motion directed at the pleading would set it for September 27, 2018, the same hearing date as the other pending motions, should not alter the date of any event or any deadline already fixed by Court order. Warner Media must respond to the Plaintiffs' complaint on or before August 10, 2018, (2) if Warner Media elects to file a motion directed at the pleading would set it for September 27, 2018, the same hearing date as the other pending motions; (3) this Stipulation shall not affect any other deadlines presently scheduled in the case, and (4) by entering into this Stipulation, Plaintiffs do not waive any claim or defense to any response that may be submitted by Warner Media. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/y76oxfl2 from Leagle.com. John Doe One, on behalf of themselves and all others similarly situated, John Doe Two, on behalf of themselves and all others similarly situated, John Doe Three, on behalf of themselves and all others similarly situated & John Doe Four, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Alan M. Mansfield -- alan@clgca.com -- The Consumer Law Group, Benjamin Reese Powell -- ben@consumerwatchdog.org -- Consumer Watchdog, Charles Nicholas Dorman -- ndorman@whatleykallas.com -- Whatley Kallas, LLP, Edith Marie Kallas -- ekallas@whatleykallas.com -- Whatley Kallas, LLP, Jerry Sinclair Flanagan -- jerry@consumerwatchdog.org -- Consumer Watchdog & Joe R. Whatley, Jr. -- whatley@whatleykallas.com -- Whatley Kallas LLP. John Doe Five, on behalf of themselves and all others similarly situated, Plaintiff, represented byAlan M. Mansfield, The Consumer Law Group. CVS Pharmacy, Inc., Caremark LLC & Caremark California Specialty Pharmacy LLC, Defendants, represented by Enu A. Mainigi -- emainigi@wc.com -- Williams and Connolly LLP, Grant A. Geyerman -- ggeyerman@wc.com -- Williams Connolly, LLP, pro hac vice, Tami Sue -- smasos@foley.com -- Foley & Lardner LLP, Benjamin Walker Graham -- bgraham@wc.com -- Williams and Connolly LLP, Nicholas John Fox -- nfox@foley.com -- Foley and Lardner LLP & Sarah Lochner O'Connor -- soconnor@wc.com -- Wiliams & Connolly LLP. CWI INC: Landers Seeks to Recover Wages and Damages Under FLSA -------------------------------------------------------------- ROBERT LANDERS, Individually and on behalf of all others similarly situated v. CWI, INC., Case No. 1:18-cv-00102-GNS (W.D. Ky., August 2, 2018), seeks to recover compensation, liquidated damages, attorneys' fees, and costs, pursuant to the provisions of the Fair Labor Standards Act of 1938. Specifically, CWI has intentionally deducted hours from the Plaintiff and the Putative Class Members' time records and has required them to perform work off the clock, according to the complaint. CWI, Inc., is a Kentucky for-profit corporation headquartered in Bowling Green, Kentucky. CWI sells Recreational Vehicles, Campers, and related accessories across the United States. CWI also provides maintenance and repair services for RVs and Campers.[BN] The Plaintiff is represented by: Trent R. Taylor, Esq. Robert E. DeRose, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 E-mail: ttaylor@barkanmeizlish.com bderose@barkanmeizlish.com - and - Clif Alexander, Esq. Lauren E. Braddy, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com DANSKO LLC: Faces Bunting Suit in Eastern District of New York -------------------------------------------------------------- A class action lawsuit has been filed against Dansko, LLC. The lawsuit is captioned as Rasheta Bunting, Individually and as the representative of a class of similarly situated persons, the Plaintiff, v. Dansko, LLC, the Defendant, Case No. 1:18-cv-04539 (E.D.N.Y., Aug. 10, 2018). The case alleges Americans with Disabilities Act violations. Dansko is a comfort footwear company based in West Grove, Pennsylvania. Dansko was founded in 1990 by husband and wife team, Peter Kjellerup and Mandy Cabot.[BN] The Plaintiff appears pro se. DAYLIGHT TRANSPORT: Misclassified Delivery Drivers, Ali Suit Says ----------------------------------------------------------------- SABIO ALI and ERIC BLAND, on behalf of themselves and all others similarly situated v. DAYLIGHT TRANSPORT, LLC, a California limited liability company; and DOES 1 to 10 inclusive, Case No. RG18915217 (Cal. Super. Ct., Alameda Cty., August 2, 2018), seeks relief from the Defendant's alleged unlawful misclassification of former and current Daylight delivery drivers as "Independent Contractors." By misclassifying the Delivery Drivers as "Independent Contractors," the Defendant has sought to avoid various duties and obligations owed to employees under the California Labor Code, the California Minimum Wage Order, and the California Industrial Welfare Commission's wage orders, including the duty to pay minimum wage and the duty to indemnify employees for expenses and losses incurred in connection with their employment, according the complaint. Daylight Transport, LLC, is a limited liability company, organized and operated under the laws of the state of California. The Company does business in and operates delivery facilities in California, including Hayward, California. The Doe Defendants are currently unknown to the Plaintiffs. The Company provides delivery services to homes and businesses, including delivery of furnishings and other merchandise. These shipping and delivery services form the core of the Defendant's business.[BN] The Plaintiffs are represented by: Aaron Kaufmann, Esq. David Pogrel, Esq. Sara B. Tosdal, Esq. LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 E-mail: akaufmann@leonardcarder.com dpogrel@leonardcarder.com stosdal@leonardcarder.com DEL TACO: Discovery Ongoing in Former Employee's Class Suit ----------------------------------------------------------- Del Taco Restaurants, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 27, 2018, for the quarterly period ended June 30, 2018, that discovery is ongoing in former employee's class suit. In March 2014, a former Del Taco employee filed a purported class action complaint alleging that Del Taco has not appropriately provided meal breaks and failed to pay wages to its California hourly employees. Discovery is in process and Del Taco intends to assert all of its defenses to this threatened class action and the individual claims. Del Taco has several defenses to the action that it believes could prevent the certification of the class, as well as the potential assessment of any damages on a class basis. Del Taco said, "Legal proceedings are inherently unpredictable, and the Company is not able to predict the ultimate outcome or cost of the unresolved matter. However, based on management's current understanding of the relevant facts and circumstances, the Company does not believe that these proceedings give rise to a probable or estimable loss and should not have a material adverse effect on the Company's financial position, operations or cash flows. Therefore, Del Taco has not recorded any amount for the claim as of June 19, 2018. Del Taco Restaurants, Inc. operates a chain of fast food restaurants. The company consists of two separate Mexican fast-food groups, 79 Del Taco units and 36 Taco Villa restaurants. The company offers Mexican food items, such as tacos, burritos, quesadillas, burgers, French fries, and soft drinks. The company was incorporated in 1983 and is based in Atlanta, Georgia. Del Taco Restaurants, Inc. operates as a subsidiary of W.R. Grace & Co. DESCHUTES COUNTY, OR: Sheriff's Office Faces Discrimination Case ---------------------------------------------------------------- Garrett Andrews, writing for The Bulletin, reports that the Deschutes County Sheriff's Office received notice on July 30 that a Portland lawyer intends to file a class action lawsuit alleging discrimination against military veterans. The tort claim notice names current sheriff's office employee David Crump and former deputy Ronny Dozier, who retired in May after more than two decades with the office, as alleged victims of discrimination. Both are veterans of the U.S. Army. "There exists sufficient evidence to assert that the Deschutes County Sheriff's Office and Deschutes County has a history of discriminating against veterans and disabled veterans," wrote Portland attorney Sean Riddell. In class action cases, a judge must first determine if a "class" of people has been harmed by someone or some entity. If the judge designates that a class exists, lawyers then work to add plaintiffs to the case. In this case, Mr. Riddell will attempt to find veterans who've applied for jobs or promotions with the sheriff's office or Deschutes County since 2015. He told The Bulletin he intends to file records requests with the county to help identify these people in the next few weeks. "We just don't know how many people are out there," he said on July 30. The most recent version of Oregon's veteran preference law was passed in 2012. The federal government's was passed in 1944. They require public employers to give preference to eligible veterans in certain hiring decisions. In Mr. Dozier's case, in May of 2016, the county human resources department requested applications for promotions to the rank of sergeant. According to a lawsuit he filed in Deschutes County Circuit Court, Mr. Dozier needed approval from his two immediate supervisors, who refused to give it to him and later refused to give him an explanation of how his veterans preference was applied to their decision. In Mr. Crump's case, Mr. Riddell says the county has an additional, unnecessary hoop veterans must jump through to apply their veterans preference points. Mr. Riddell says the county's extra requirement -- a form that must be filled out -- violates state law. Sheriff's spokesman Sgt. William Bailey said the agency was unable to comment on the possible class action suit, due to pending legal matters. "A large portion of our workforce are veterans," Sgt. Bailey said. "We value their experience and backgrounds and what they bring to our agency." Mr. Dozier has two active lawsuits against the sheriff's office and Deschutes County. The first he filed last year alleges the agency violated Oregon's veterans preference law. The second he filed this year alleges retaliation against a whistleblower, and other claims. Mr. Dozier has filed two complaints with the Oregon Bureau of Labor and Industries, one against the sheriff's office and one against the county. Both were closed due to insufficient evidence. Mr. Crump filed a BOLI complaint against Deschutes County and prevailed when the agency found cause that the county failed to apply Oregon's veterans preference policy in his case. [GN] DEUTSCHE BANK: Oct. 25 Libor Settlement Fairness Hearing Set ------------------------------------------------------------ The following is being released by Susman Godfrey L.L.P. and Hausfeld LLP. There are lawsuits impacting individuals and institutions that entered into over-the-counter financial derivative and non-derivative instruments directly with 17 banks on the U.S. Dollar LIBOR panel from 2007 to 2010 and that received payments tied to U.S. Dollar LIBOR. Settlements totaling $340 million have now been reached with Deutsche Bank Aktiengesellschaft and HSBC Bank plc. Earlier, settlements totaling $250 million were reached with Barclays and Citibank. A Litigation Class represented by the Plaintiffs in this litigation continues to assert claims against Bank of America, N.A. and JPMorgan Chase Bank, N.A. The lawyers for the Litigation Class will have to prove their claims in Court and a trial will be scheduled for a later date. The Litigation Class is seeking to recover money for its members. The litigation claims that the banks manipulated the U.S. Dollar LIBOR rate during the financial crisis, artificially lowering the rate for their own profit, which resulted in class members receiving lower interest payments for their U.S. Dollar LIBOR-based instruments from the banks than they should have. Plaintiffs assert antitrust, breach of contract, and unjust enrichment claims. Deutsche Bank, HSBC, Bank of America, and JPMorgan Chase deny all claims of wrongdoing. There are two groups of individuals and institutions that are impacted by these lawsuits. Litigation Class: Individuals and institutions are included if they reside in the U.S. and directly purchased certain U.S. Dollar LIBOR-based instruments (interest rate swaps or bond/floating rate notes) from Panel Banks (Bank of America, Bank of Tokyo-Mitsubishi, Barclays, Citibank, Credit Suisse, Deutsche Bank, HBOS, HSBC, JPMorgan Chase, Lloyds, Norinchukin, Rabobank, Royal Bank of Canada, Royal Bank of Scotland, Société Générale, UBS, and WestLB), or any of their subsidiaries or affiliates; and pursuant to the instruments, a Panel Bank paid them interest indexed to a 1-month or 3-month U.S. Dollar LIBOR rate set at any time between August 2007 and August 2009. (This means they must have owned the instrument(s) between August 2007 and August 2009.) Settlement Classes: Individuals and institutions are included if they directly purchased certain U.S. Dollar LIBOR-based instruments from Deutsche Bank, HSBC, Barclays, Citibank, Bank of America, Bank of Tokyo-Mitsubishi, Citizens Bank, Credit Suisse, HBOS, JPMorgan Chase, Lloyds, Norinchukin, Rabobank, Royal Bank of Canada, Royal Bank of Scotland, Société Générale, UBS, or WestLB (or their subsidiaries or affiliates) in the United States; and owned the instruments at any time between August 2007 and May 2010. The instruments in the Settlement Classes include certain interest rate swaps, forward rate agreements, asset swaps, collateralized debt obligations, credit default swaps, inflation swaps, total return swaps, options, and bonds/floating rate notes. The Deutsche Bank and HSBC Settlements will create Settlement Funds totaling $340 million that will be used to pay eligible Class Members who submit valid claims. Additionally, Deutsche Bank and HSBC will cooperate with the Plaintiffs in their ongoing litigation against the remaining defendants. Class Members must submit a Proof of Claim to get a payment. They can submit a Proof of Claim online or by mail. The deadline to submit a Proof of Claim is December 20, 2018. Class Members are entitled to receive a payment if they have a qualifying transaction with Deutsche Bank, HSBC, Barclays, Citibank, Bank of America, Bank of Tokyo-Mitsubishi, Citizens Bank, Credit Suisse, HBOS, JPMorgan Chase, Lloyds, Norinchukin, Rabobank, Royal Bank of Canada, Royal Bank of Scotland, Societe Generale, UBS, or WestLB (or their subsidiaries or affiliates). At this time, it is unknown how much each Class Member who submits a valid claim will receive. There is no money available now for the Litigation Class and no guarantee that there will be. If money or benefits are obtained in a future trial, Class Members will be notified about how to ask for a share. Settlement Class Members who do not file a timely claim or who opt out of the Settlements will lose their right to receive money or benefits from the $340 million in settlements with Deutsche Bank and HSBC. Litigation Class Members who elect to opt out of the Litigation Class will not be eligible for any money or benefits obtained in a future trial against, or class settlements with, JPMorgan Chase or Bank of America, unless they timely file their own lawsuit. If Class Members would like to retain their right to file their own lawsuit against Deutsche Bank, HSBC, JPMorgan Chase, or Bank of America, they must opt out of the appropriate Class by September 28, 2018. If they stay in the Settlement Classes, they may object to the Settlements by September 28, 2018. The Court will hold a hearing on October 25, 2018 to consider whether to approve the Settlements and approve Class Counsel's request of attorneys' fees of up to one-third of the Settlement Funds, plus reimbursement of costs and expenses. Class Members or their lawyers may appear and speak at the hearing at their own expense. More information is available about the Settlement Classes on the website, www.USDollarLiborSettlement.com, and in the Long Form Notice accessible on that website, or by calling 1-888-568-7640. Contacts: Susman Godfrey LLP Seth Ard 212-471-8354 sard@susmangodfrey.com DGS CONSTRUCTION: Two Classes in Unpaid Wage Suit Certified ----------------------------------------------------------- In the case, MARIO ERNESTO AMAYA, JOSE NORLAND GONZALEZ and JOSE AMADEO CASTILLO, Plaintiffs, v. DGS CONSTRUCTION, LLC and THE WHITING-TURNER CONTRACTING COMPANY, Defendants, Civil Action No. TDC-16-3350 (D. Md.), Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland granted both the Plaintiffs' Motion for Class Certification and Motion for Leave to Amend the Complaint. Plaintiffs Amaya, Gonzalez, and Castillo, former carpenters employed by the Defendant on the construction of the MGM Resort Casino at National Harbor in Prince George's County, Maryland, have brought suit against Schuster and Defendant Whiting-Turner for violations of the Maryland Wage and Hour Law ("MWHL), and the Maryland Wage Payment and Collection Law ("MWPCL"), as well as for state law claims of breach of contract and unjust enrichment. The Plaintiffs were each employed by Schuster during several months in 2015. The Plaintiffs also seek a declaratory judgment that they are third-party beneficiaries of a Project Labor Agreement ("PLA") signed by Whiting-Turner and various trade unions. They allege that Schuster failed to pay them at the rate for carpenters for every hour worked and failed to pay certain fringe benefits for overtime work as required by the PLA. The Plaintiffs have identified approximately 1,600 employees who allegedly were not paid overtime fringe benefits. They have further identified at least 388 employees who were classified as carpenters on the Project. The Plaintiffs retained a certified public accountant to analyze the potential damages in lost wages and benefits owed to all construction employees employed by Schuster on the Project. According to the expert's report, carpenters employed on the Project were underpaid by approximately $4.35 million, based on (1) hours paid at the laborer rate when they should have been paid at the carpenter rate and (2) hours for which carpenters were otherwise not paid at the carpenter rate. The report further concludes that Schuster failed to pay its Project employees approximately $1.11 million in overtime fringe benefits. Pending before the Court is Plaintiffs' Motion for Class Certification. In their Motion for Class Certification, the Plaintiffs seek certification of two classes. The "Overtime Fringe Benefit Class" is composed of 141 current and former employees who were employed in any craft worker classification by Defendant Schuster at the MGM Resort Casino at National Harbor and worked overtime hours. The "Carpenter Class" consists of all current and former employees who were employed by Defendant Schuster at the MGM Resort Casino at National Harbor and performed carpentry work. The Plaintiffs have also filed a Motion for Leave to Amend the Complaint. Through the Motion, they seek to add (1) factual support for the argument that all workers on the Project were intended third-party beneficiaries of the PLA; (2) allegations that Whiting-Turner was contractually obligated to enforce the PLA against non-signatories to the PLA; (3) allegations that Schuster assented to the terms of the PLA through its conduct; and (4) allegations that Schuster failed to comply with the wage and fringe benefits requirements of the Project Manual. These proposed amendments come after the Oct. 16, 2017 deadline for amending the pleadings established in the Court's Amended Scheduling Order. Judge Chuang finds that the Overtime Fringe Benefits Class is clearly ascertainable, satisfies the Rule 23(a) factors, and meets the predominance and superiority requirements of Rule 23(b)(3). There is no dispute that Schuster can identify those workers who were not paid overtime fringe benefits without a significant administrative burden. On numerosity, there are at least 100 members, and possibly up to 1,600 members, making joinder of all members impractical. On commonality, Schuster admits that it did not pay any of its workers fringe benefits for overtime hours worked, and the legality of this policy is a question that not only is common to the class, but also predominates over any other factor or defense that each individual class member might have on this claim, such that a class action is a superior, more efficient means to resolve this dispute. As for typicality, the named Plaintiffs' claims that they were not paid fringe benefits for overtime hours worked, and their legal arguments regarding the applicability of the PLA's provisions to Schuster and Whiting-Turner's responsibility to enforce the agreement, are identical to the claims and arguments that would be offered by other proposed class members. Adequacy is satisfied because there is no apparent conflict of interest, and the Plaintiffs' counsel is experienced in complex civil litigation. Accordingly, he will grant the Motion for Class Certification as to the Overtime Fringe Benefits Class. As was the case for the Overtime Fringe Benefits class, there is no significant dispute that the Carpenter Class satisfies the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, that common issues predominate over any questions affecting only individual members, and that a class action is superior to all other methods for fairly and efficiently adjudicating the controversy. The Motion for Class Certification will also be granted as to the Carpenter Class. Finally, as to the Plaintiffs' Motion for Leave to Amend the Complaint, the Judge finds that the Plaintiffs have shown good cause under Rule 16. Having found that the Plaintiffs have satisfied the requirements of Rule 16, he also finds that leave to amend the complaint should be granted under the more liberal standard of Rule 15, which permits amendment in the absence of bad faith, prejudice, or futility. The proposed amendments are not futile. They simply add more facts to support certain claims and reframe others in a manner consistent with the legal arguments advanced by the Plaintiffs throughout this litigation. For the foregoing reasons, Judge Chuang granted the Plaintiffs' Motion for Class Certification and their Motion for Leave to Amend the Complaint. A separate Order will issue. A full-text copy of the Court's July 10, 2018 Memorandum Opinion is available at https://is.gd/ByMy4u from Leagle.com. Mario Ernesto Amaya, Jose Norland Gonzalez & Jose Amadeo Castillo, Plaintiffs, represented by Brian Joseph Markovitz -- bmarkovitz@jgllaw.com -- Joseph Greenwald and Laake PA & Joseph M. Creed -- jcreed@jgllaw.com -- Joseph, Greenwald & Laake, P.A. DGS Construction, LLC, doing business as, Defendant, represented by Donald Eugene English, Jr. -- Donald.English@jacksonlewis.com -- Jackson Lewis P.C., Stephen M. Silvestri -- Stephen.Silvestri@jacksonlewis.com -- Jackson Lewis P.C. & Eileen Carr Riley -- Eileen.Riley@jacksonlewis.com -- Jackson Lewis P.C. The Whiting-Turner Contracting Company, Defendant, represented by Lillian Lane Reynolds -- llreynolds@Venable.com -- Venable LLP & Ronald W. Taylor -- rwtaylor@Venable.com -- Venable LLP. DOCTOR DIRECTORY: Denial of Bid to Remand TCPA Suit Vacated ----------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, reversed the judgment of the District Court denying the Plaintiffs' Motion to Remand in the case captioned Davis Neurology PA, on behalf of itself and all other entities and persons similarly situated, Plaintiff-Appellant, v. DoctorDirectory.com LLC; Everyday Health Inc., Defendants-Appellees, John Does, 1-10, intending to refer to those persons, corporations or other legal Entities that acted as agents, consultants, Independent contractors or representatives, Defendants, No. 17-1820 (8th Cir.). The district court entered judgment on the pleadings for the defendants in this case, and the plaintiff appeals. There is a preliminary issue, however, concerning whether the lawsuit was properly removed from Arkansas state court to federal court. Davis Neurology, PA, brought a putative class action in Arkansas state court, alleging that defendants DoctorDirectory.com, LLC and Everyday Health, Inc. (Doctor Directory), violated the Telephone Consumer Protection Act (TCPA). The alleged violation occurred when the defendants sent Davis Neurology an unsolicited facsimile that contained an invitation to participate in a research study. Doctor Directory filed a second notice of removal, claiming that the footnote in Davis Neurology's state-court filing was the first definitive notice that Davis Neurology was alleging an injury in fact that was separate and distinct from the alleged statutory violation. Doctor Directory argued that its ability to remove the action was first ascertainable from the pleading filed on September 2, and that the notice of removal filed twenty-four days later was timely under Section 1446(b)(3). Davis Neurology responded that the removal was untimely because the September 2 footnote added nothing to allegations of injury in the complaint or in earlier briefing, and urged the district court to remand the case to state court again. The district court denied the motion for remand, concluding that the Article III standing question was cured when Davis Neurology filed its state-court pleading on September 2, 2016. The court eventually granted judgment on the pleadings for Doctor Directory on the ground that the challenged facsimile was not an unsolicited advertisement governed by the TCPA. The time limit on removal in Section 1446(b)(3) depends on the date when it may first be ascertained that a case is removable. Assuming for the sake of analysis that Section 1446(b)(3) allows removal within thirty days of the date on which a party's Article III standing is first ascertainable, we conclude that Davis Neurology's September 2 footnote cannot serve as the basis for removal under Section 1446(b)(3). Davis Neurology made a nearly identical statement of injury in fact more than three months earlier. On May 23, 2016, Davis Neurology and Doctor Directory filed a revised joint report pursuant to Federal Rule of Civil Procedure 26(f). Then, on June 23, in its response to the motion for judgment on the pleadings, Davis Neurology referred to lost time and spent resources caused by the allegedly offending facsimile. That pleading argued that operational costs for the machine, paper, and the risk of losing legitimate business while the machine is tied up with unsolicited advertisements constituted injuries in fact. These two filings in May and June provided Doctor Directory with information about Davis Neurology's alleged injury that was at least equivalent to the statement set forth in the September 2 footnote. So even if Doctor Directory was entitled to additional time for removal based on uncertainty about Davis Neurology's standing to sue, the clock started to run no later than June 23. The second notice of removal filed September 26 was well outside the thirty-day time limit established by Section 1446(b)(3). Accordingly, the district court erred when it denied Davis Neurology's motion for remand. Because second notice of removal was untimely, the district court should have remanded the case to state court without reaching the merits of the action. The Court therefore vacates the judgment, and remand to the district court with instructions to return the case to state court. A full-text copy of the Eighth Circuit's July 23, 2018 Opinion is available at https://tinyurl.com/y7shaaay from Leagle.com. Alexander Graham Streett, for Plaintiff-Appellant. James Albert Streett, for Plaintiff-Appellant. Joey Paul Leniski, Jr., for Plaintiff-Appellant. Barbara A. Smith -- barbara.smith@bclplaw.com -- for Defendant-Appellee. David Alan Zetoony -- David.Zetoony@bclplaw.com -- for Defendant-Appellee. Maria Z. Vathis -- Maria.Vathis@bclplaw.com -- for Defendant-Appellee. Anthony A. Orlandi -- anthonyo@bsjfirm.com -- for Plaintiff-Appellant. EL PASO, TX: Tex. App. Affirms Dismissal of Jury Summons Suit ------------------------------------------------------------- The Court of Appeals of Texas, Eighth District, El Paso, affirming the trial court's judgment granting the County's Plea and dismissing Appellants' lawsuit in the case captioned JOSHUA LUTTRELL, ANDREW DAVIS, MOISES ROMAN, JOE RODRIGUEZ; AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, Appellants, v. EL PASO COUNTY, Appellee, No. 08-16-00090-CV (Tex. App.). The Tex. App. issued its original opinion on December 20, 2017, in which it agreed with the trial court that Appellants had failed to state a claim for relief against the County for which its immunity had been waived, but holding that the trial court erred by failing to give Appellants the opportunity to amend their petition to attempt to state a viable claim for relief. The County filed a motion for rehearing, arguing that Appellants had already been given an opportunity to amend their petition after the County filed its Plea to the Jurisdiction, and that Appellants did not request the opportunity to file a second amended petition after the trial court granted the County's Plea, thereby failing to preserve this issue for appeal. Appellants did not file a response to the motion. The Tex. App. grants the motion for rehearing, withdraw its prior opinion and judgment, and substitute the following opinion. The Tex. App. affirms the trial court's judgment granting the County's Plea to the Jurisdiction and dismissing Appellants' lawsuit. Appellants are four residents of El Paso who were found in contempt by Senior Judge Jerry Woodard for failing to obey a jury summons. Appellants filed a lawsuit on behalf of themselves and other similarly situated persons, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction, and that Judge Woodard imposed court costs and fees in an "illegal" manner in their cases. In addition, Appellants sought a permanent injunction restraining and enjoining the defendants from charging illegal costs and fees in the future, a refund of all court costs, fines and fees already paid by Appellants. Because the trial court ultimately dismissed Judge Woodard from the case, with Appellants' consent, based on the doctrine of judicial immunity, this left the County as the sole defendant in the case. The County filed a Plea to the Jurisdiction also seeking dismissal from Appellants' lawsuit, primarily arguing that it had governmental immunity from suit. In response, Appellants amended their Petition, adding an ultra vires claim against the County, as well as a claim for an illegal "taking" under the Texas Constitution. The trial court granted the County's Plea, and dismissed Appellants' lawsuit in its entirety. Appellants did not request an opportunity to file a second amended petition, and instead appealed the trial court's judgment to this Court. Appellants contend that the trial court erred in granting the County's Plea, arguing that they raised valid causes of action in their amended Petition for which the County's immunity was waived, or in the alternative, that the trial court erred by not giving them a second opportunity to amend their Petition to correct any jurisdictional defects in their pleadings before dismissing their lawsuit. The Tex. App. concludes that the trial court correctly determined that Appellants' amended petition did not state any valid causes of action for which the County's immunity was waived, and the Tex. App. further concludes that the trial court did not commit reversible error by failing to give Appellants a second opportunity to amend their petition before dismissing their lawsuit. The Tex. App. therefore affirms the trial court's judgment granting the County's Plea and dismissing Appellants' lawsuit. A full-text copy of the Tex. App.'s July 29, 2018 Opinion is available at https://tinyurl.com/ya4w2t6o from Leagle.com. James D. Lucas , Mark T. Davis, for Joshua Luttrell, Andrew Davis, Moises Roman, Joe Rodriguez; and on behalf of all other persons similarly situated, Appellant. Jo Anne Bernal, Kevin McCary , for El Paso County, et al., Appellee. EL POLLO: Workers' Lawsuit Can Proceed as Class Action ------------------------------------------------------ On July 30, 2018, the Honorable Judge William Claster ruled a lawsuit brought on behalf of hourly El Pollo Loco workers in California should be able to proceed as a class action. The El Pollo Loco class action lawsuit, Case No. JCCP 4957, is currently pending in the Orange County Superior Court for the State of California. The class action lawsuit originally filed by the Los Angeles Labor Law Lawyers at Blumenthal Nordrehaug Bhowmik De Blouw LLP in February of 2014 can be read here. The lawsuit alleges that El Pollo Loco required hourly employees to work off the clock after their closing shifts and also allegedly failed to provide their Golden State workers with off-duty rest periods. The Honorable Judge William claster stated in his order "[t]he underpinning of this claim is that Defendant, pursuant to an established written policy, did not allow its employees to leave restaurant premises during their paid 10 minute breaks. According to Plaintiff, this across-the-board limitation on all employees violates the IWC wage orders and Labor Code Section 226.7 which require duty-free rest breaks . . . The Court finds that Plaintiff has satisfied the commonality requirement." The court has certified the following Rest Break class in its Order: "[A]ll individuals employed by [El Pollo Loco, Inc.] as a non-exempt employees in one of the restaurants owned by Defendant El Pollo Loco, Inc. in California from february 24, 2010 to the present." The Judge's Order certifying the Rest Break class of can be read here. According to the Order, the rest break class includes approximately 14,650 employees. The Court also certified a class of hourly cooks who worked at least one closing shift, but asked the Parties to meet and confer regarding a revised class definition. According to the Order, the off-the-clock hourly cook class includes approximately 3,403 employees. In the coming months, all individuals who part of the classes will be notified of their rights. Nicholas J. De Blouw,Esq. Blumenthal Nordrehaug Bhowmik De Blouw LLP Telephone: (415) 935-3957 Email: nick@bamlawca.com [GN] ENHANCED RECOVERY: Knutson Sues over Debt Collection Practices -------------------------------------------------------------- JEAN KNUTSON, RACHEL HOLMES, and JANE RANFT, individually and on behalf of all others similarly situated, Plaintiffs v. ENHANCED RECOVERY COMPANY, LLC, Defendant, Case No. 2:18-cv-01113-DEJ (E.D. Wis., July 18, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Enhanced Recovery Company LLC provides business process outsourcing services that include recovery, outsourcing, and market research primarily for Fortune 500 companies in the United States and internationally. Enhanced Recovery Company LLC was formerly known as Enhanced Recovery Corporation. The company was founded in 1999 and is based in Jacksonville, Florida with locations in the United States, the Dominican Republic, Belize, and India. [BN] The Plaintiff is represented by: Mark A. Eldridge, Esq. 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) 482-800 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com ENTERPRISE BANK: Underpays Mortgage Loan Officers, Heard Alleges ---------------------------------------------------------------- MATTHEW HEARD, individually and on behalf of all others similarly situated, Plaintiff, v. ENTERPRISE BANK & TRUST INC., Defendant, Case No. 4:18-cv-00559-DGK (W.D. Mo., July 24, 2018) is an action against the Defendant for failure to pay minimum and overtime wages in violation of the Fair Labor Standards Act. Mr. Heard was employed by the Defendant as a mortgage loan officer. Enterprise Bank & Trust, Inc. provides banking products and services to privately-held businesses and their owner families, and other individuals in St. Louis, Kansas City, and Phoenix areas. Enterprise Bank & Trust, Inc. was formerly known as Enterprise Bank and changed its name to Enterprise Bank & Trust, Inc. in January 2004. The company was founded in 1988 and is based in Clayton, Missouri with additional locations in Creve Coeur, St. Louis, Saint Charles, and Saint Peters, Missouri. Enterprise Bank & Trust, Inc. operates as a subsidiary of Enterprise Financial Services Corp. [BN] The Plaintiff is represented by: James B. Zouras, Esq. Ryan F. Stephan, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 E-mail: jzouras@stephanzouras.com - and - Jeffrey J. Carey, Esq. BOYD, KENTER, THOMAS & PARRISH, LLC 229 SE Douglas Street, Suite 210 Lee’s Summit, MO 64063 Telephone: (816) 246-9445 Facsimile: (816) 246-8006 E-mail: jcarey@bktplaw.com ERNST & YOUNG: Burns & Levinson Attorneys Discuss SCOTUS Ruling --------------------------------------------------------------- Shepard Davidson, Esq. -- sdavidson@burnslev.com -- and Renee Inomata, Esq. -- rinomata@burnslev.com -- of Burns & Levinson LLP, in an article for Lexology, report that as noted in a prior post, the differences between arbitration and litigation go well beyond the fact that arbitration generally is a quicker and less expensive process. As such, there are a host of reasons why a company may want certain disputes -- including, but not limited to, those brought by its own employees -- resolved through arbitration. Similarly, companies almost always want to avoid the risk of being sued in a class action. Recently, the U.S. Supreme Court, in its consolidated decision in Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; and NLRB v. Murphy Oil USA, Inc., ruled that class action waivers are enforceable. As Justice Gorsuch noted at the outset, while the three consolidated cases had different facts, they each essentially revolved around the same related questions: Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? In the Ernst & Young case, Stephen Morris entered into an employment agreement with E&Y, stating that (i) all disputes between the two had to be arbitrated, and (ii) claims "pertaining to different employees [must] be heard in separate proceedings." Nevertheless, when Morris felt that he was misclassified as a professional employee and not provided with overtime pay in violation of the Fair Labor Standards Act, he filed a class-action lawsuit in federal court. Not surprisingly, E&Y responded by moving to compel arbitration, and the district court granted that motion. The Ninth Circuit reversed the district court decision, however, reasoning that (i) Section 2 of the Federal Arbitration Act states that agreements to arbitrate are enforceable, "save upon such grounds as exist at law or in equity for the revocation of any contract," and (ii) there were grounds to revoke the contract in this case, because the waiver contravened 29 U.S.C. §157, which grants employees the right to engage in "concerted activities" – to wit, pursuing a class action for alleged violations of the NLRA. Put another way, Morris and the other employee/parties to these lawsuits argued that it would be illegal for them to waive their right to pursue class actions. Ultimately, and for a multitude of reasons, the Supreme Court ruled that there was nothing illegal about waiving the right to pursue a class action, and there was no other basis on which the employees could disavow their agreements to refrain from pursuing class actions against their employers. So if you're concerned that employees in your business might want to file a class action, or even band together and sue jointly, consider obtaining their agreement not to bring such actions (either with or without also obtaining their agreement to arbitrate disputes). As the Supreme Court has now made clear, such a waiver will be accorded the same presumption of validity as any other business term. [GN] ESURANCE PROPERTY: Bettor Suit Moved to Southern Dist. of Florida ----------------------------------------------------------------- The class action lawsuit titled Richard Bettor, on behalf of himself and all others similarly situated, the Plaintiff, v. Esurance Property and Casualty Insurance Company, the Defendant, Case No. CACE-18-015628-13, was removed from the U.S. District Court for 17th Judicial Circuit in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft Lauderdale) on Aug. 10, 2018. The Florida Southern District Court Clerk assigned Case No. 0:18-cv-61860-FAM to the proceeding. The case is assigned to the Hon. Judge Federico A. Moreno. Esurance Property & Casualty Insurance Company operates as a subsidiary of The Allstate Corporation.[BN] The Plaintiff is represented by: Edward Herbert Zebersky, Esq. ZEBERSKY PAYNE, LLP 110 S.E. 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 989 6333 Facsimile: (954) 989 7781 E-mail: ezebersky@zpllp.com The Defendant is represented by: Scott Allan Cole, Esq. COLE SCOTT & KISSANE Dadeland Centre II Suite 1400 9150 S Dadeland Boulevard Miami, FL 33156 Telephone: (305) 350 5300 Facsimile: (305) 373 2294 E-mail: scott.cole@csklegal.com EVERSOURCE ENERGY: Inflates Natural Gas Prices, PNE Claims ---------------------------------------------------------- PNE ENERGY SUPPLY LLC, on behalf of itself and all others similarly situated, the Plaintiff, v. EVERSOURCE ENERGY, a Massachusetts voluntary association, and AVANGRID, INC., a New York Corporation, the Defendants, Case No. 1:18-cv-11690-DJC (D. Mass. Aug. 10, 2018), seeks treble damages, costs of suit, and other relief as may be determined as just and proper, on behalf of Plaintiff and those similarly situated against Defendants Eversource Energy and Avangrid Inc. for illegally manipulating the supply of pipeline capacity in the secondary capacity market in order to artificially inflate New England natural gas and electricity prices, under Section 2 of the Sherman Act, Section 4 and 16 of the Clayton Act. Eversource Energy and Avangrid Inc. are two of the largest energy companies in New England. Eversource is comprised of a family of interrelated companies, including six wholly owned subsidiaries.[BN] Counsel for PNE Energy Supply LLC: Anthony Tarricone, Esq. Joseph P. Musacchio, Esq. Elizabeth Tully, Esq. KREINDLER & KREINDLER LLP 855 Boylston Street, Suite 1101 Boston, MA 02116 Telephone: (617) 424 9100 Facsimile: (617) 424 9120 E-mail: atarricone@kreindler.com jmusacchio@kreindler.com etully@kreindler.com - and - Austin B. Cohen, Esq. Keith J. Verrier, Esq. LEVIN SEDRAN &BERMAN LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3997 Telephone: (215) 592 1500 Facsimile: (215) 592 4663 E-mail: acohen@lfsblaw.com kverrier@lfsblaw.com FACEBOOK INC: UK Advocacy Group Prepares Cambridge Analytica Case ----------------------------------------------------------------- Katie McQuater, writing for Populus, reports that advocacy group The Fair Vote Project is preparing a class-action lawsuit against Facebook following the Cambridge Analytica data scandal. The suit is being readied by Kyle Taylor, director of Fair Vote UK, and Bindmans LLP. It follows the publication of the Digital, Culture, Media and Sport's select committee interim report on fake news at the weekend. Bindmans LLP's Tamsin Allen -- t.allen@bindmans.com -- said: "We are taking the first formal steps in proceedings against Facebook for breaches on a vast scale of the agreement between the company and its users, and breaches of UK personal data rules." Facebook informed those whose data had been improperly obtained, but Allen said the company's failure to protect users' data was made "woefully apparent" during the investigation by the Commons select committee. Taylor, who is also one of the claimants, said: "It is now abundantly clear the status quo with regard to how we hold internet giants to account does not work. The solution is urgent reform to properly regulate and oversee companies like Facebook. Because the breaches took place before the GDPR came into effect, the fines are simply not great enough to deter this behaviour." Members of the public can check whether their personal data was harvested via the Fair Vote UK website. Separately, according to a report in Wired, a group of UK residents has sent Facebook a letter threatening to sue, accusing the company of violating data privacy regulations. [GN] FBCS INC: Goldson Seeks Relief for S.C. Consumers Under FDCPA ------------------------------------------------------------- Mikki Goldson, individually and on behalf of all others similarly situated v. FBCS, Inc., Cavalry SPV I, LLC and John Does 1-25, Case No. 8:18-cv-02128-AMQ (D.S.C., August 2, 2018), seeks damages and declaratory relief on behalf of a class of South Carolina consumers under the Fair Debt Collections Practices Act. FBCS and Cavalry are "debt collectors" as the phrase is defined and used in the FDCPA with an address in Hatboro, Pennsylvania. FBCS and Cavalry are companies, which use the mail, telephone, and facsimile and regularly engage in business the principal purpose of which is to attempt to collect debts alleged to be due another. The names of the Doe Defendants are currently unknown.[BN] The Plaintiff is represented by: Ken Norsworthy, Esq. NORSWORTHY LAW, LTD. CO. 505 Pettigru Street Greenville, SC 29601 Telephone: (864) 804-0581 E-mail: norsworthylaw@gmail.com FINANCIAL RECOVERIES: Faces Singer Suit in District of New Jersey ----------------------------------------------------------------- A class action lawsuit has been filed against Financial Recoveries Limited. The case is captioned as SARAH SINGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. FINANCIAL RECOVERIES LIMITED, the Defendant, Case No. 1:18-cv-12563-JBS-AMD (D.N.J., Aug. 8, 2018). Financial Recoveries is a full service accounts receivable solutions & management company.[BN] The Plaintiff is represented by: Todd D. Muhlstock, Esq. BAKER SANDERS LLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 741 4799 E-mail: ECF@MuhlstockLaw.com FRIENDFINDER NETWORKS: Gutierrez Sues over Data Breach ------------------------------------------------------ ALEJANDRO GUTIERREZ, individually and on behalf of all other similar situated individuals, the Plaintiff, vs. FRIENDFINDER NETWORKS, INC., a Delaware Corporation, the Defendant, Case No. 18CV332813 (Cal. Super. Ct., Aug. 10, 2018), seeks to recover restitution and injunctive relief caused by Defendant's alleged data breach. According to the complaint, the Defendant operates an adult online dating site under the AdultFriendFinder trademark with the Internet address, www.adultfriendfinder.com ("AFF"). The AFF website, in operation since 1996, is designed to facilitate discreet adult relationships between individuals and groups who seek to find similar minded adults for sexual encounters and is described on the company website as the "World's Largest Sex & Swinger Community." While promising to keep its users' confidential personal information secure, Defendant failed to safeguard this information. As a result, in or about October 2016, a hacker or a group of hackers breached Defendant's system and downloaded two decades worth of information from approximately 339 million accounts, making the AFF security breach the second largest in the 21st Century, trailing only behind the massive Yahoo! breach. Of the 339 million accounts affected, approximately 71.9% belonged to users in the United States and 15 million belonged to users who had "deleted" their accounts. An additional 70 million users whose information was stolen were customers of other x-rated websites, which Defendant sold to Penthouse Global Media prior to the breach. It is believed that the stolen information included: e-mail addresses, passwords, whether or not a user was a VIP member, browser information, the last IP address used to log in, and user purchases, as well as other sensitive personal information, such as users' photographs ("Personal Identifiable Information" or "PII"). AFF did not admit to the breach when it was contacted by a media source, but approximately a week later began to notify its customers of the breach by surfacing a message when a user logged into his/her account. But, this type of notice did not reach millions of users affected as, of the 700 million users AFF boasts, according to an analysis of the last login dates, over 200 million have not logged in since 2010, and 15 million of the compromised accounts were "deleted" accounts. The Defendant's failure to disclose information concerning the Data Breach directly and promptly to affected customers, constitutes a fraudulent act or practice in violation of California Business & Professions Code section 17200, et seq. The Plaintiff suffered injury in fact and lost property and money as a result of Defendant's conduct.[BN] Attorneys for Plaintiff and Putative Class: Julian Hammond, Esq. Polina Brandler, Esq. Ari Cherniak, Esq. HAMMONDLAW, P.C. 1829 Reisterstown Rd. Suite 410 Baltimore, MD 21208 Telephone: (310) 601 6766 Facsimile: (310) 295 2385 E-mail: jhammond@hammondlawpc.com pbrandler@hammondlawpc.com acherniak@hammondlaw.com - and - Laura L. Ho, Esq. GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763 9800 Facsimile: (510) 835 1417 E-mail: lho@gbdhlegal.com GC SERVICES: Faces Karp Suit in Eastern District of New York ------------------------------------------------------------ A class action lawsuit has been filed against GC Services Limited Partnership. The lawsuit is captioned as Schneur Karp, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. GC Services Limited Partnership, the Defendant, Case No. 1:18-cv-04531 (S.D.N.Y., Aug. 10, 2018). The case alleges Fair Debt Collection Act violations. GC Services is a privately held outsourcing provider of call center management.[BN] The Plaintiff appears pro se. GC SERVICES: Faces Moskovits Suit in District of New Jersey ----------------------------------------------------------- A class action lawsuit has been filed against GC Services Limited Partnership. The lawsuit is captioned as SHLOMO MOSKOVITS, on behalf of himself and all others similarly situated, the Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, the Defendant, Case No. 3:18-cv-12649-AET-LHG 3:18-cv-12649-AET-LHG (D.N.J., Aug. 10, 2018). The case is assigned to the Hon. Judge Anne E. Thompson. The case alleges Fair Debt Collection Act violations. GC Services is a privately held outsourcing provider of call center management.[BN] The Plaintiff is represented by: Ibrahim Abohamra, Esq. SIROTKIN VARACALLI & HAMRA LLP 110 East 59th Street, Suite 3200 New York, NY 10022 Telephone: (646) 590 0571 E-mail: ahamra@svhllp.com GC SERVICES: Kacinski Suit in Eastern District of New York ---------------------------------------------------------- A class action lawsuit has been filed against GC Services Limited Partnership. The case is captioned as Laurie Kacinski, on behalf of herself and all others similarly situated, the Plaintiff, v. GC Services Limited Partnership, the Defendant, Case No. 2:18-cv-04489 (E.D.N.Y., Aug. 8, 2018). GC Services provides accounts receivable and customer care solutions to public and private sector organizations. It offers first party receivable programs, including cure programs, early stage collections, and pre charge-off collections; third party receivables management programs, such as post charge-off collections and skip tracing services.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Telephone: (631) 335 1107 E-mail: mpash@verizon.net GDS HOLDINGS: Faces Ramzan Suit Over Misleading Statements ---------------------------------------------------------- HAMZA RAMZAN, Individually and On Behalf of All Others Similarly Situated v. GDS HOLDINGS LIMITED, WILLIAM WEI HUANG, and DANIEL NEWMAN, Case No. 4:18-cv-00539 (E.D. Tex., August 2, 2018), seeks to recover compensable damages caused by the Defendants' alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Defendants made false and/or misleading statements and/or failed to disclose that: (1) GDS Holdings overstated the value of certain data centers it had acquired; (2) GDS Holdings failed to maintain adequate internal controls; (3) as a result, Defendants' statements about its business, operations, and prospects were materially false and/or misleading and/or lacked a reasonable basis at all relevant times, the Plaintiff alleges. GDS Holdings is incorporated in the Cayman Islands and had principal executive offices in the People's Republic of China. The Individual Defendants are directors and officers of the Company. GDS Holdings is a US-listed developer and operator of data centers in China. GDS Holdings, together with its subsidiaries, purports to design, build, and operate data centers in China.[BN] The Plaintiff is represented by: L. Kirstine Rogers, Esq. Dean Gresham, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Rd., Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: krogers@stecklerlaw.com dean@stecklerlaw.com - and - Laurence M. Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com pkim@rosenlegal.com GENERAL CABLE: Court Dismisses L. Eley's ERISA Suit --------------------------------------------------- The United States District Court for the Eastern District of Kentucky, Northern Division, Covington, granted Defendant's Motion to Dismiss the case captioned LONNIE E. ELEY, on behalf Of the General Cable Savings And Investment Plan, himself, And a class consisting of Similarly situated participants Of the Plan, Plaintiffs, v. GENERAL CABLE CORP., ET AL., Defendants, Civil Action No. 17-45 (WOB-CJS)(E.D. Ky.). Plaintiff Lonnie M. Eley, on behalf of a putative class of participants in the General Cable Savings and Investment Plan (Plan), brings this action under Sections 404, 405, 409 and 502 of the Employee Retirement Income Security Act of 1974, as amended, for the defendants' alleged breaches of fiduciary duties. Count One of the Amended Class Action Complaint alleges breach of the duty of prudence; Count Two alleges breach of the duty of loyalty; and Count Three alleges breach of the duty to monitor. The Defendants have moved to dismiss the Amended Complaint, arguing that it fails to state a claim under applicable law. Breach of the Duty of Prudence The Plaintiff alleges that defendants breached their duty of prudence by failing to act in response to non-public, insider information. To state a claim for breach of the duty of prudence on the basis of inside information, a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. The Plaintiff first alleges that the defendants should have made early and candid disclosures of the FCPA violations because the longer the concealment continued, the more of the Plan's good money went into a bad investment. The Plaintiff argues that early disclosure in this case would not have caused significant harm compared to the losses that eventually resulted because of the length of the Class Period, twelve years and the fact that General Cable ultimately was a net purchaser due to large purchases made towards the end of the Class Period. The Sixth Circuit and other courts have rejected this argument because it effectively invokes hindsight to task fiduciaries with acting on information not available until years later. Graham, 2018 WL 315098, at *6, however, recognizing ERISA imposes the duty to act in a prudent manner under the circumstances then prevailing, courts have noted the duty requires prudence, not prescience. Therefore, the plaintiff fails to plead a plausible claim based on the disclosure theory. The Plaintiff's allegation that defendants should have held participants' contributions in cash or some other short-term investment or should have simply frozen further purchases meets with the same fate. In sum, the plaintiff has not plausibly alleged any alternative action the defendants could have taken that would have been consistent with the securities laws and that a similarly situated prudent fiduciary would not have viewed as more likely to harm than help the Plan. The Plaintiff thus has failed to plead a claim for breach of the duty of prudence. Breach of the Duty of Loyalty Count Two of the Amended Complaint alleges that the defendants breached their duty of loyalty to Plan participants by continuing to allow investment in General Cable stock; failing to engage independent fiduciaries to make judgments about investing Plan assets; placing their interests above the interest of participants; misrepresenting information; satisfying General Cable's matching obligations with company stock; and breaching their co-fiduciary obligations. These allegations largely mirror those underlying the plaintiff's breach of prudence claim, and to that extent they are derivative and fail for the same reasons. The wholly conclusory allegations that defendants placed their interest ahead of participants also do not pass muster under Rule 12(b)(6). Breach of the Duty to Monitor Finally, the plaintiff concedes that its duty to monitor claim is derivative of its first two claims. This claim thus also fails as the pleading stage. A full-text copy of the District Court's July 23, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ya3xj757 from Leagle.com. Lonnie E. Eley, on behalf of the General Cable Savings and Investment Plan, himself, and a class consisting of simimlarly situated participants of the Plan, Plaintiff, represented by Michael J. Klein -- ONVI@ssbny.com -- Stull, Stull & Brody, pro hac vice & Ronald R. Parry -- rrparry@strausstroy.com -- Strauss & Troy, LPA. General Cable Corporation, The Retirement Plans Finance Committee of General Cable Corporation, The Retirement Plans Administrative Committee of General Corporation, Elizabeth Mlekush, Robert J. Siverd, Don Katchman, John Doe(s), 1-20, The Board of Directors of General Cable Corporation, Gregory B. Kenny, Michael T. McDonnell, Gregory E. Lawton, Craig P. Omtvedt, Patrick M. Prevost, Robert L. Smialek, John E. Welsh, III, Sallie B. Bailey & Edward Childs Hall, III, Defendants, represented by Brian T. Ortelere -- brian.ortelere@morganlewis.com -- Morgan Lewis & Bockius LLP, Sean K. McMahan -- sean.mcmahan@morganlewis.com -- Alston & Bird, LLP, pro hac vice & David F. Fessler -- dfessler@fsgattorneys.com -- Fessler, Schneider & Grimme LLP. GENKI SUSHI: Over 50,000 People Could Be Entitled to Money ---------------------------------------------------------- Allyson Blair, writing for Hawaii News Now, reports that it's been two years since a deadly Hepatitis A outbreak struck Hawaii, creating one of the largest outbreaks to hit the United States in decades. Those who got sick, or in some cases simply got the vaccine -- could be entitled to money -- but time is running out to make a claim. In August 2016, health investigators determined raw scallops served at Genki Sushi on Oahu and Kauai as the source of the outbreak. A total of 292 people were infected with the virus. Of those infected, one woman died and more than 70 others had to be hospitalized. "These people were really sick," said Attorney Bill Marler, Esq. -- marler@marlerclark.com -- "Even the people who were modestly sick felt like they had the flu for a month." Marler represented 88 people whose cases have been settled. He says Hawaii has a statute of limitations which means that those who got sick as a result of the outbreak have two years to file a lawsuit. "Anyone who got sick before August 15, 2016 has to bring a claim by August 15, 2018," said Marler. "Anybody who got sick after the 15th can bring a claim to the date when they got sick." Marler says there are 182 people who were documented as having the virus, but have yet to sue. "The lawsuit is pretty simple. It just lays out what happened to the person." said Marler. "They can contact a lawyer to file that lawsuit for them or they can file the lawsuit by themselves. Seaport, Koha Foods and Genki Sushi are the three entities that were involved and those are the three entities you need to file a lawsuit against." There's also a class-action suit for people who received the Hepatitis A vaccination after the health department revealed the source of the outbreak. Records show more than 50,000 people were vaccinated in the two weeks following that announcement. "The class action is seeking reimbursement for the cost of the shot and time away from work," said Marler. Hawaii News Now asked Marler about the amounts his clients got in their settlements, but he said he couldn't comment due to a confidentiality agreement.[GN] GRAND ISLE SHIPYARD: Sandlin Seeks Overtime Pay ----------------------------------------------- WESLEY SANDLIN, Individually and on behalf of other employees similarly situated, the Plaintiff, v. GRAND ISLE SHIPYARD, INC., the Defendant, Case No. 2:18-cv-07607-LMA-KWR (E.D. La., Aug. 10, 2018), seeks to recover unpaid back wages, additional equal amount as liquidated damages, attorney's fees and costs, and pre- and post-judgment interest, pursuant to the Fair Labor Standards Act of 1938. According to the complaint, GIS failed to maintain accurate time records of Plaintiff's and the Putative Class's actual start times, actual stop times, hours worked each day and total hours worked each workweek, within the three year statute of limitations period. As a result of the alleged underpayment of wages, Defendant is indebted to Plaintiff and the Putative Class in the amount of the unpaid overtime compensation. GIS is an oilfield services company that provides construction, maintenance and turnaround, production, and engineering services.[BN] Attorneys for Wesley Sandlin and Opt-Ins: Trang Q. Tran, Esq. TRAN LAW FIRM 2537 S. Gessner Road, Suite 104 Houston, TX 77063 Telephone: (713) 223 8855 Facsimile: (713) 623 6399 E-mail: Ttran@tranlawllp.com - and - Scott Webre, Esq. WEBRE AND ASSOCIATES 2901 Johnston Street, Suite 307 Lafayette, LA 70503 Telephone: (337) 237 5051 Facsimile: (337) 237 5061 E-mail: scott@webreandassociates.com GRANDISON MANAGEMENT: Physical Therapist Files Wage-and-Hour Suit ----------------------------------------------------------------- DIANNAH ANNE ZENDON, Individually and on behalf of all other persons similarly situated, the Plaintiff, v. GRANDISON MANAGEMENT, INC., REHAB SYNERGY PT, P.C. and BASILIO E. LOPEZ, the Defendants, Case No. 2:18-cv-04545-JFB-ARL (E.D.N.Y., Aug. 10, 2018), seeks to recover damages and injunctive relief for violations of the Trafficking Victims Protection Act, for failure to pay regular and overtime wages in violation of the Fair Labor Standards Act, and the New York Labor Law, for breach of the parties' employment contract, and for a declaratory judgment that a $30,000.00 indenture and a nationwide, two-year non-compete clause in the employment contract are unenforceable under the TVPA, the l3th Amendment to the United States Constitution, and New York common law. According to the complaint, the Plaintiff is a physical therapist who was recruited in the Philippines to work for the Defendants under contracts of indentured servitude for a three-year term. The first contract she was made to sign, which was dated February 20, 2015, contained a so-called "liquidated damages" clause that required her to pay or work off a $30,000 indenture before she would be allowed to stop working for the Defendants. The contract also contained non-compete provisions that purport to prohibit her from practicing her profession anywhere in the United States for two years. The second contract dated July 13, 2017 also contained a so-called "liquidated damages" clause that required Plaintiff to pay "$200.00 for every 40 hours left in the Work Term". When Plaintiff complained about risks to patient health and safety, false billing practices, and the failure to pay her for all hours worked, Grandison Management replied that it was allegedly normal for a physical therapist to treat as many as 40 patients a day and that there allegedly was no law restricting the number of patients a physical therapist could treat in a day. Grandison also replied that Plaintiff was just merely adjusting to a new work environment when she complained about her working during week-ends and even evenings to finish her paperwork. Grandison Management provides healthcare services. The Company offers nurses, therapists, and other specialties services.[BN] The Plaintiff is represented by: Felix Q. Vinluan, Esq. LAW OFFICE OF FELIX VINLUAN Woodside, NY 11377 Telephone: (718) 478 4488 Facsimile: (718) 478 4488 E-mail: fqvinluan@yahoo.com - and - Manuel B. Quintal, Esq. LAW OFFICES OF MANUEL QUINTAL P.C. 291 Broadway Suite, 1501 New York, NY 10007 Telephone: (212) 732 0055 Facsimile: (212) 587 8933 E-mail: quintallaw@aol.com HAKIMIAN MANAGEMENT: Faces Fischler Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Hakimian Management Corporation. The lawsuit is captioned as Brian Fischler, Individually and on behalf of all other persons similarly situated, the Plaintiff, v. Hakimian Management Corporation, doing business as: The Addition LLC, Defendant, Case No. 1:18-cv-07230 (S.D.N.Y., Aug. 10, 2018). The case alleges Americans with Disabilities Act violations. Hakimian is a developer, owner, and manager of New York real estate since 1970.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue New York, NY 10017-6705 Telephone: (212) 392 4772 Facsimile: (212) 444 1030 E-mail: chris@lipskylowe.com HENRY LIMOUSINE: Court Approves $260K Class Settlement ------------------------------------------------------ The United States District Court for the Eastern District of New York granted Parties' Joint Letter for Settlement Approval in the case captioned SEDDIQ ELAMRANI, et al., Plaintiffs, v. HENRY LIMOUSINE, LTD., et al., Defendants, No. 15 CV 2050 (CLP)(E.D.N.Y.). The opt-in plaintiffs in this case are all former employees of defendant Henry Limousine Company who are alleged to have worked different overtime hours for the defendant employer. Courts have identified several factors to consider when determining whether a proposed settlement is fair and reasonable, including: (1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion. Settlement Amount Damages Calculations The parties propose a total settlement amount of $260,832.83. They calculated this amount based on damages, including liquidated damages, a base amount for each plaintiff, service awards for select plaintiffs, and attorney's fees and costs. Maximum Provable Damages The parties calculated the weeks worked during this time period for each plaintiff, and found that the plaintiffs worked, on average, approximately fifty (50) hours per week. The parties multiplied each plaintiff's number of hours worked by over forty (40) in a week by the statutorily-applicable overtime rate of $10.88. Liquidated Damages As for liquidated damages, the parties calculated this amount at 25% of the total overtime amount owed for hours worked prior to April 9, 2011. For hours worked after April 9, 2011, they calculated liquidated damages at 100% of maximum provable damages. The parties' submission includes a table with columns for each plaintiff outlining (1) the number of weeks worked prior to 2013; (2) the overtime rate of pay; (3) the maximum provable FLSA damages, including both actual and liquidated recovery amounts; (4) the settlement amount received after deductions for fees and costs; and (5) the percentage of the maximum FLSA damages plus liquidated damages received. After examining the parties' calculations, the Court concludes that the total settlement amount is fair and reasonable. The Court has also assessed the parties' methodology in calculating individual damages, and, in light of each plaintiff's hours worked and how long each plaintiff worked for, finds that each plaintiff's portion of the total settlement amount is also fair and reasonable. Attorney's Fees and Costs Finally, the settlement awards $84,941.16, or 32.5% of the settlement, in attorney's fees. Citing case law in this district routinely awarding 33% as attorney's fees in FLSA actions, the parties assert that the amount of attorney's fees and costs here are reasonable. Additionally, the parties include contemporary billing records and use the lodestar method as a cross check to ensure that counsel's fee award is not excessive in relation to the amount of work actually performed. The Court notes that the parties here include recent cases where courts in this district and in the Southern District of New York have awarded plaintiffs' firm's requested hourly rate to support the requested hourly rate for each of the firm's partners and junior attorneys. The Court finds these attorney's fees reasonable based on both the contingency fee percentage supported by case law in this district, and the lodestar crosscheck. In this case, after holding a fairness hearing and reviewing the parties' submission, the Court finds that the settlement reached is a fair and reasonable compromise of the plaintiff's claims, considering the amount received, the issues of potential liability that might have limited recovery, and the fact that the parties engaged in arms' length negotiations among experienced counsel sufficient to gain an understanding of the risks and benefits of proceeding with the litigation. A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/y9f7v7ex from Leagle.com. Michael A. Levy, Mediator, pro se. Seddiq Elamrani, on behalf of himself, individually and all others similarly situated, Plaintiff, represented by Jeffrey Robert Maguire -- jrm@employmentlawyernewyork.com -- Borrelli & Associates, Alexander T. Coleman -- atc@employmentlawyernewyork.com -- Borrelli & Associates PLLC, Janine Kapp , Borrelli & Associates, P.L.L.C., Joan Badere Lopez , Borrelli and Associates PLLC & Michael J. Borrelli , Borrelli & Associates, P.C. Henry Limousine, LTD. & Avraham Mazouz, in his individual and professional capacities, Defendants, represented by Arthur H. Forman , Attorney at Law & Roberta C. Pike , Pike & Pike, P.C.. HILTON GRAND: Court Grants Prelim Approval of Class Settlement -------------------------------------------------------------- The United States District Court for the District of South Carolina, Florence Division, granted Parties' Joint Motion for Preliminary Approval of Settlement in the case captioned THOMAS KASPRZYK, STEVEN HUGHES, SHERRY SINGLETON, ERIC WILSON, HENRY PERFILIO, WILLIAM NEVILLE, EDWARD BELAIR, KIM STRAWDERMAN, MICHAEL WARE, JOHN MAYNARD, J.W. NAVE, RONALD L. HOWE, and CHRISTOPHER R. DOBIS, Individually and on behalf of other employees similarly situated, Plaintiffs, v. HILTON GRAND VACATIONS COMPANY, LLC; HILTON GRAND VACATIONS MANAGEMENT, LLC; and HILTON RESORTS CORPORATION, Defendants, Civil Action No. 4:17-cv-01393-RBH(D.S.C.). This matter comes before the Court on the Parties' Joint Motion for Preliminary Approval of Settlement, Certification of FLSA Collective Action for Settlement Purposes Only, and Approval of Proposed Notice of Settlement. The Court preliminarily approves the settlement set forth in the Parties' Settlement Agreement as being a fair, reasonable, and adequate resolution of a bona fide dispute. The proposed FLSA collective action is conditionally certified under 29 U.S.C. Section 216(b) solely for settlement purposes to give class members the opportunity to become party plaintiffs and assert a claim. The Settlement Class is defined as the Named Plaintiffs and all sales executives who have worked at Hilton Grand Vacation's Myrtle Beach resort during the Class Period. The Settlement Class will include Action Line Sales Executives and In-House Sales Executives, but it will not include VIP representatives, sales managers, or sales leaders (T.O.). A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/ya74pzns from Leagle.com. Steven Hughes, Individually and on behalf of other employees similarly situated, Sherry Singleton, Individually and on behalf of other employees similarly situated, Eric Wilson, Individually and on behalf of other employees similarly situated, Ronald L Howe & Christopher R Dobis, Plaintiffs, represented by William James Luse, William J Luse Law Office, & Trang Quoc Tran -- Ttran@tranlawllp.com -- Tran Law Firm LLP, pro hac vice. JW Nave, Individually and on behalf of other employees similarly situated, Edward Belair, Individually and on behalf of other employees similarly situated, William Neville, Individually and on behalf of other employees similarly situated, John Maynard, Individually and on behalf of other employees similarly situated, Henry Perfilio, Individually and on behalf of other employees similarly situated & Michael Ware, Individually and on behalf of other employees similarly situated, Plaintiffs, represented by William James Luse , William J Luse Law Office. Hilton Grand Vacations Company LLC, Hilton Grand Vacations Management LLC & Hilton Resorts Corporation, Defendants, represented by Donald Christopher Lauderdale -- lauderdc@jacksonlewis.com -- Jackson Lewis PC, William Robert Gignilliat, IV -- William.Gignilliat@jacksonlewis.com -- Jackson Lewis PC & Thomas Chase Samples -- chase.samples@jacksonlewis.com -- Jackson Lewis PC. HOME INSTEAD: Faces Delacruz Suit in Southern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Home Instead, Inc. The lawsuit is captioned as Emanuel Delacruz, on behalf of himself and all others similarly situated, the Plaintiff, v. Home Instead, Inc., the Defendant, Case No. 1:18-cv-07225 (S.D.N.Y., Aug. 10, 2018). The case alleges Americans with Disabilities Act violations. Home Instead provides senior home care services. It offers services in the areas of occupational therapy, wound care, mobility training, and pain management.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299 6612 Facsimile: (929) 575 4195 E-mail: joseph@cml.legal HOUSTON, TX: Judge Dismisses Lawsuit Over Rape Kit Backlog ---------------------------------------------------------- 10 KWTX reports that a federal judge has dismissed a class action lawsuit filed by thousands of women and minors against current and former Houston officials over delays in testing of rape kits. The lawsuit alleged the officials allowed the delays, meaning suspects remained free and justice was denied to the victims. In a 22-page opinion filed Wednesday, however, U.S. District Judge Vanessa Gilmore ruled the lawsuit, filed last September, was filed too late. She ruled that a two-year statute of limitations had lapsed in 2013. An attorney for those who brought the suit, Randall Kallinen,Esq. of Houston, declined immediate comment on August 3. The class action suit had represented about 6,000 women and several hundred minors who said they were harmed when the Houston Police Department failed to submit their rape kits to a crime lab. Kits submitted in 2011 languished in storage for years.[GN] IBILEY UNIFORM: Pineda Sues Over Marketing Text Messages -------------------------------------------------------- CESAR PINEDA, individually and on behalf of all others similarly situated v. IBILEY UNIFORM, INC., a Florida Corporation, Case No. 1:18-cv-23162-JEM (S.D. Fla., August 2, 2018), alleges that the Defendant violated the Telephone Consumer Protection Act by sending marketing text messages, without first obtaining express written consent to send those messages. Ibiley is a Florida corporation with a principal office located in Miami, Florida. The Defendant owns and operates several brick and mortar retail stores, as well as an online business specializing in the marketing and distribution of uniform garments.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com IMPERIAL J & Y: Fails to Pay OT Wages, Herrera-Cautle Suit Says --------------------------------------------------------------- CLEMENTE HERRERA-CAUTLE, and all similarly situated present and former employees of the defendants herein, pursuant to N.J.S.A. 34:11-56a25 and 29 U.S.C Section 216(b) v. IMPERIAL J & Y, LLC (a.k.a IMPERIAL WOOD FLOORING, LLC), AHARON EHRENRICH, YEHUDA MERMELSTEIN, AKIVA MERMELSTEIN, SMAUEL (a.k.a. SAMUEL) SITKO, and JOHN/JANE DOES ##1-5, jointly, severally, and individually, Case No. MER-L-001639-18 (N.J. Super. Ct., Mercer Cty., August 2, 2018), alleges that the Defendants failed to pay the Plaintiff at the legally-required minimum wage and overtime rate, as required by the Fair Labor Standards Act and the New Jersey Wage and Hour Law. Imperial J & Y, LLC (a.k.a. Imperial Wood Flooring, LLC) is organized under the laws of the state of New Jersey. The Company's main business address is listed as 410 Monmouth Avenue, in Lakewood, New Jersey. The Individual Defendants are members, authorized agents or managers of the Company. The identities of the Doe Defendants are currently unknown. The Company is engaged in the business of home remodeling in the state of New Jersey.[BN] The Plaintiff is represented by: Roger Martindell, Esq. ROGER MARTINDELL, ATTORNEY AT LAW 245 Nassau Street Princeton, NJ 08540 Telephone: (609) 921-3355 Facsimile: (609) 921-9345 E-mail: martindell.law@gmail.com INNERWORKINGS INC: Faces "Brown" Securities Class Action Suit ------------------------------------------------------------- InnerWorkings, Inc. said in its Form 10-K/A report filed with the U.S. Securities and Exchange Commission on July 27, 2018, for the fiscal year ended December 31, 2017, that the company is facing a putative securities class action suit entitled, Errol Brown, et al., v. InnerWorkings, Inc., et al. In May 2018, shortly following the Company's announcement of its intention to restate certain historical financial statements, a putative securities class action complaint was filed against the Company and certain of its current and former officers and directors. The action, Errol Brown, et al., v. InnerWorkings, Inc., et al., is currently pending before the United States District Court for the Central District of California. The complaint alleges claims pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Allegations in the complaint include that the Company and its current and former officers and directors made untrue statements or omissions of material fact by issuing inaccurate financial statements for the fiscal years ending December 31, 2015, 2016, and 2017, as well as all interim periods. The putative class seeks an unspecified amount of monetary damages as well as reimbursement of fees and costs, including reasonable attorneys' fees, and other costs. The Company and individual defendants dispute the claims. A motion for appointment of lead plaintiff and lead counsel was filed on July 9, 2018, and is scheduled for hearing on August 6, 2018. InnerWorkings, Inc. provides marketing execution solutions in North America and internationally. The company's software applications and databases create an integrated solution that stores, analyzes, and tracks the production capabilities of its supplier network, as well as detailed pricing data. The company was founded in 2001 and is headquartered in Chicago, Illinois. INTERNATIONAL HAIR: Faces Doucet Suit in S.D. California -------------------------------------------------------- The class action lawsuit titled Izabelle J. Doucet and Charlotte Dukich, individually and on behalf of all others similarly situated, the Plaintiff, v. International Hair Institute, LLC, a Virginia limited liability company; Keranique, LLC, a Virginia limited liability company; Atlantic Coast Media Group, LLC, a Virginia limited liability company; and Does 2-50, inclusive, the Defendant, Case No. 37-2018-00009996-CU-MC-CTL, was removed from the California Superior Court, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego) on Aug. 10, 2018. The Southern District of California Court Clerk assigned Case No. 3:18-cv-01879-WQH-KSC to the proceeding. The case is assigned to the Hon. Judge William Q. Hayes.[BN] The Plaintiffs are represented by: Zachariah Paul Dostart, Esq. DOSTART HANNINK COVENEY LLP 4180 La Jolla Village Drive, Suite 530 La Jolla, CA 92037 Telephone: (858) 623 4200 Facsimile: (858) 623 4299 E-mail: zdostart@sdlaw.com The Defendants are represented by: Lee S Brenner, Esq. KELLEY DRYE AND WARREN LLP 10100 Santa Monica Boulevard, 23rd Floor Los Angeles, CA 90067 Telephone: (310) 712 6100 Facsimile: (310) 712 6199 E-mail: lbrenner@kelleydrye.com INVENTION SUBMISSION: Calhoun Suit Transferred to W.D. Pa. ---------------------------------------------------------- The class action lawsuit titled ETTA CALHOUN, ON BEHALF OF HERSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, the Plaintiff, INVENTION SUBMISSION CORPORATION doing business as: INVENTHELP; TECHNOSYSTEMS CONSOLIDATED CORP.; TECHNOSYSTES SERVICE CORP.; WESTERN INVENTION SUBMISSION CORP.; UNIVERSAL PAYMENT CORPORATION; INTROMARK INCORPORATED; INNOVATION CREDIT CORP.; ROBERT J. SUSA; THOMAS FROST P.A.; ABOVE BOARD DRAFTING, INC.; JOHN DOE COMPANIES 1-10; JOHN DOE INDIVIDUALS 1-10; THOMAS FROST; and ABOVE BOARD DRAFTING, INC., the Defendants, Case No. 2:18-cv-02307, was transferred from the U.S. District Court for Eastern District of Pennsylvania, to the U.S. District Court for the Western District of Pennsylvania (Pittsburgh) on Aug. 8, 2018. The Western District of Pennsylvania Court Clerk assigned Case No. 2:18-cv-01022-RCM to the proceeding. The case is assigned to the Hon. Judge Robert C. Mitchell. This class action arises out of a deceptive and fraudulent invention promotion scam that has bilked thousands of aspiring inventors and entrepreneurs into paying millions of dollars to Defendants for invention promotion services that Defendants do not, and never intend to, provide.[BN] Attorneys for Etta Calhoun on behalf of herself and all other persons similarly situated: Richard A. Levan, Esq. KLEHR, HARRISON, HARVEY, BRANZBERG & ELLERS 260 South Broad Street Philadelphia, PA 19102 Telephone: (215) 568 6060 - and - Jon-Jorge Aras, Esq. LEVAN LEGAL LLC Two Bala Plaza, Suite 300 Bala Cynwyd, PA Telephone: (215) 525 1165 E-mail: jjaras@levan.legal Attorneys for Invention Submission Corporation; Technosystems Consolidated Corp.; Technosystes Service Corp.; Western Invention Submission Corp.; Universal Payment Corporation; Intromark Incorporated; and Robert J. Susa: David Garraux, Esq. FOX ROTHSCHILD LLP 2000 Market St. 10th Fl Philadelphia, PA 19103 Telephone: (215) 299 2847 E-mail: dgarraux@foxrothschild.com JC WASHINGTON: Fails to Pay Wages to Delivery Driver, Bavaro Says ----------------------------------------------------------------- JULIA BAVARO, and NATHAN BLOSE, individually and on behalf of all others similarly situated, Plaintiff v. JC WASHINGTON INC.; JC NORTHERN PIKE, LLC; and JOHN DOE CORP. 1-10, Defendants, Case No. 2:18-cv-00982-RCM (W.D. Pa., July 26, 2018) seeks to recover minimum wages as required by the Fair Labor Standards Act and Pennsylvania Minimum Wage Law. The Plaintiff Bavaro was employed by the Defendants as delivery driver from January 2016 to March 2017. The Plaintiff Blose was employed as delivery driver from October 2017 to February 2018. JC Washington Inc. is a domestic corporation located in Washington, Pennsylvania. The Company operates a pizza restaurants [BN] The Plaintiffs are represented by: Gregory G. Paul, Esq. MORGAN & PAUL, PLLC 100 First Avenue, Suite 1010 Pittsburgh, PA 15222 Telephone: (412) 259-8375 Facsimile: (888) 822-9421 E-mail: gregpaul@morgan-paul.com - and - Andrew Biller, Esq. Andrew Kimble, Esq. Philip Krzeski, Esq. MARKOVITS, STOCK & DEMARCO, LLC 3825 Edwards Road, Suite 650 Telephone: (513) 651-3700 Facsimile: (513) 665-0219 Email: abiller@msdlegal.com akimble@msdlegal.com pkrzeski@msdlegal.com JFK MEDICAL: Mendez et al. Seek to Certify Two Classes ------------------------------------------------------ In the lawsuit entitled SANDRA LOIS MENDEZ, AMY R. BRAZEE, SETH GATES, and LORI R SINGER f/k/a Lori R. Kogan, on behalf of themselves and all others similarly situated, the Plaintiffs, v. JFK MEDICAL CENTER LIMITED PARTNERSHIP d/b/a JFK Medical Center, NPAS, INC., HCA HOLDINGS, INC., PALMS WEST SURGERY CENTER, LTD. d/b/a Palms West Surgicenter, UNIVERSITY HOSPITAL, LTD. d/b/a University Hospital & Medical Center, and MIAMI BEACH HEALTHCARE GROUP, LTD. d/b/a Aventura Hospital and Medical Center, the Defendants, Case No. 9:17-cv-80866-KAM (S.D. Fla.), the Plaintiffs ask the Court for an order certifying these classes: Class I: "For the period from four (4) years preceding the filing of this action through the date of the entry of judgment herein, all patients for whom JFK or NPAS billed or collected for amounts in excess of that authorized under the PIP Statute"; Class II: "For the period from four (4) years preceding the filing of the Second Amended Complaint through the date of the entry of judgment herein, all patients for whom HCA's Florida Providers (excluding JFK) billed or collected for amounts in excess of that authorized under the PIP Statute." Attorneys for Plaintiffs: Seth A. Kolton, Esq. William J. Cornwell, Esq. Seth A. Kolton, Esq. WEISS, HANDLER & CORNWELL, P.A. One Boca Place, Suite 218-A 2255 Glades Road Boca Raton, FL 33431 Telephone: (561) 997-9995 Facsimile: (561) 997-5280 E-mail: wjc@whcfla.com filings@whcfla.com sak@whcfla.com jh@whcfla.com - and - Bruce F. Silver, Esq. Silver & Silver, P.A. 6100 Glades Road, Suite 201 Boca Raton, FL 33434 Telephone: (561) 488 3344 Facsimile: (561) 488 5899 E-mail: brucesilver@silverlawoffices.com Attorneys for Defendants: Walter J. Tache, Esq. Magda C. Rodriguez, Esq. TACHE, BRONIS, CHRISTIANSON AND DESCALZO 150 SE Second Avenue, Suite 600 Miami, FL 33131 E-mail: wtache@tachebronis.com mrodriguez@tachebronis.com - and - John Emmanuel, Esq. Ashley Bruce Trehan, Esq. Buchanan Ingersoll & Rooney, PC 401 E Jackson Street, Suite 2400 Tampa, FL 33602 E-mail: john.emmanuel@bipc.com Ashley.trehan@bipc.com JUDICIAL CORRECTION: Removes Eaton Suit to N.D. Alabama ------------------------------------------------------- The Defendants in the case of ETHEL LEE EATON, and TIMOTHY BLAINE SMITH, individually and on behalf of all others similarly situated, Plaintiffs v. JUDICIAL CORRECTION SERVICES, LLC f/k/a Judicial Correction Services, Inc.; CHC COMPANIES, LLC f/k/a CHC Companies, Inc.; and CORRECT CARE SOLUTIONS, LLC, Defendants, filed a notice to remove the lawsuit from the Circuit Court of the State of Alabama, County of Jefferson, (Case No. 01-CV-2018-902118) to the U.S. District Court for the Northern District of Alabama on July 5, 2018, and assigned Case No. 2:18-cv-01034-LSC (N.D. Ala., July 5, 2018). Judicial Correction Services, Inc. provides supervised probation services to municipal and state courts for misdemeanor cases. It offers judicial correction services and in-court procedures; and provides accounting of financial, offender, and case notes. The company was founded in 2000 and is based in Cumming, Georgia. It also has offices in Hoover, Alabama; and Okaloosa, Florida. [BN] The Defendants are represented by: Larry S. Logsdon, Esq. Michael L. Jackson, Esq. Wesley K. Winborn, Esq. WALLACE JORDAN RATLIFF & BRANDT, LLC P.O. Box 530910 Birmingham, AL 35253 Telephone: (205) 870-0555 E-mail: llogsdon@wallacejordan.com mjackson@wallacejordan.com wwinborn@wallacejordan.com - and - Wilson F. Green, Esq. FLEENOR & GREEN LLP 1657 McFarland Blvd. N., Ste G2A Tuscaloosa, Al 35406 Telephone: (205) 722-1018 E-mail: wgreen@fleenorgreen.com - and - F. Lane Finch, Jr., Esq. Brian C. Richardson, Esq. SWIFT CURRIE MCGHEE & HIERS LLP Two North 20th Street, Ste. 1405 Birmingham, AL 35203 Telephone: (205) 314-2401 E-mail: lane.finch@swiftcurrie.com brian.richardson@swiftcurrie.com KAHALA HOTEL: Judgment in J. Kawakami's Suit Vacated ---------------------------------------------------- In the case, JASON KAWAKAMI, Individually and on behalf of all others similarly situated, Petitioner/Plaintiff-Appellant/Cross-Appellee v. KAHALA HOTEL INVESTORS, LLC, dba KAHALA HOTEL AND RESORT Respondent/Defendant-Appellee/Cross-Appellant, Case No. SCWC-11-0000594 (Haw.), Judge Michael D. Wilson of the Supreme Court of Hawai'i (a) vacated the Intermediate Court of Appeals ("ICA")' affirmance of the circuit court's grant of judgment as a matter of law ("JMOL"); (b) reinstated (i) the circuit court's earlier grant of partial summary judgment to Kawakami as to the Defendant's liability under HRS Section 481B-14; and (ii) the jury's special verdict in favor of Kawakami on legal causation and the amount of damages in the trial on damages that followed the grant of partial summary judgment; and (c) remanded to the circuit court for determination of additional damages and fees under Hawaii's statute governing unfair or deceptive acts or practices. The class action concerns Hawaii's hotel and restaurant service charge law. Kawakami held his wedding reception at the Kahala Hotel and Resort in July 2007. The hotel collected a 19% service charge on the purchase of food and beverages for his reception, but the hotel failed to distribute 100% of the funds from the service charge directly to its service employees as tip income. Instead, the hotel retained 15% of those funds as what it termed "the management share," then reclassified those funds and used them to pay for the banquet employees' "wages." The "event agreement," a contract used by the hotel for large group events, contained no disclosure that a portion of the service charge would be diverted to the hotel, rather than directly distributed to the banquet employees as tip income. A section of the event agreement, titled "Service Charge and Tax," stated only that all food and beverage prices are subject to a 19% service charge. No other disclosure was made to Kawakami that a portion of the service charge would not be directly distributed to the banquet employees as tips. Kawakami filed a lawsuit on behalf of himself and other customers who paid a service charge to the hotel in connection with the purchase of food or beverages. He claimed the hotel's conduct was an unfair or deceptive act or practice ("UDAP") under HRS Section 481B-14 and HRS Section 480-2. He moved for summary judgment "on liability" because the undisputed facts established that the hotel violated HRS Section 481B-14 and HRS Section 480-2. The circuit court granted summary judgment as to liability only, not remedies or damages, ruling that under HRS Section 481B-14 the hotel had "a duty to disclose" to Kawakami that a portion of the service charge would become the property of the hotel rather than paid to its employees as tip income. A jury trial to determine damages followed. The jury found that the hotel was the legal cause of injury to the Plaintiff class and awarded $269,114.73 to the class, corresponding to the amount of the combined service charges retained by the hotel as "the management share." A little more than a month after the verdict, the hotel renewed its prior motions for JMOL, which had been denied by the circuit court. This time the circuit court granted the motion for JMOL on the theory there had been insufficient evidence the Plaintiffs suffered injury as a result of the hotel's violation of HRS Section 481B-14. It observed, the jury awarded as damages to the Plaintiffs a sum that appears to be equal to the amount of the Management's Share of the service charge. On appeal the ICA vacated the circuit court's order granting Kawakami's motion for summary judgment and held instead that summary judgment should have been granted in favor of the hotel. The ICA reasoned that because the hotel ultimately distributed the management share of the service charge as wages, its actions were in compliance with the language of HRS Section 481B-14 and no disclosure to Kawakami was required. On certiorari in Kawakami I, the Court rejected the ICA's reasoning. Instead, it recognized the well-settled duty of hotels and restaurants under the statute to either distribute the entirety of the service charge directly to non-management banquet employees who served the consumers as 'tip income,' or to disclose its practice of withholding the service charge. Accordingly, the Court vacated the ICA's judgment on appeal and remanded to the ICA. It directed the ICA to address on remand Kawakami's argument that the circuit court erred when it granted JMOL to the hotel on the theory that Kawakami suffered no injury as a result of the hotel's actions. On remand from the Court's decision in Kawakami I, the ICA affirmed the circuit court's grant of JMOL to the hotel because, in the ICA's view, Kawakami failed to establish that he was injured, financially or otherwise, as a result of Kahala Hotel's deceptive trade practices. With respect to Kawakami's alternative claim of a contract-based injury, the ICA rejected that claim largely on the grounds that the required disclosure under HRS Section 481B-14 need not take the form of a written provision in an event contract, nor must it necessarily occur before parties enter into the contract, and therefore there was no breach of contract. As a result, the ICA affirmed the circuit court's grant of JMOL. On certiorari, Kawakami argues that the ICA erred by holding that no contract-based or UDAP-based injury occurred. He also argues that the ICA erred in affirming the circuit court's order denying the Plaintiffs' motion in limine no. 1, which sought to preclude the admission of certain evidence. Judge Wilson explains that it is undisputed that the hotel neither distributed the proceeds from the service charges directly and entirely to the service employees as tip income, nor clearly disclosed that it failed to do so. He finds that the hotel failed to perform its contractual obligation, mandated by the implied terms, to follow the baseline distribution pattern. Nor did the hotel opt out of the implied terms requiring the baseline distribution pattern by following the statutorily-required route of clearly disclosing to Kawakami or the members of the class the fact that the hotel follows a different distribution pattern. Instead, the hotel retained for itself a percentage of the service charge, an amount that, had the purchaser been given the benefit of his bargain, would have been distributed entirely to the service personnel who assisted at his wedding reception. The Judge also finds that the allegations in the Paintiffs' complaint gave the hotel fair notice that the hotel's pattern and practice of violating HRS Section 481B-14 was at issue "on any legal theory." The rules do not require a statement of a cause of action. His analysis of the relevant principles of contract law led him to hold that Kawakami's damages for breach of contract based on his expectation interest are properly measured by the 15% of the total 19% service charge which the hotel retained for itself rather than directly distributing as tip income to service employees. The jury in the damages trial considered the factual evidence regarding the total service charges collected over the relevant period. The jury awarded $269,114.73 to the class, corresponding to the amount of the combined service charges retained by the hotel as "the management share." That amount is 15% of the total 19% service charge and corresponds to the amount retained by the hotel. The jury's award is supported by substantial evidence. Having vacated the circuit court's grant of JMOL to the hotel subsequent to trial, the Judge reinstated the damages awarded at trial, in the amount awarded, albeit on the ground that the amount equals Kawakami's damages for the hotel's breach of contract. Turning to the question of whether Kawakami and the class also sustained damages under the Hawai'i statute forbidding UDAP, HRS Chapter 480, the Judge holds that a violation of Hawaii's hotel and restaurant service charge law, HRS Section 481B-14, is deemed to also be an unfair or deceptive act or practice in the conduct of any trade or commerce within the meaning of HRS section 480-2; the injury to Kawakami's legally-protected interest was caused by the hotel's breach of contract; and the amount of damages was proved at trial. Because Kawakami has met the elements for a UDAP claim, he remanded to the circuit court for an award of treble damages and attorney's fees. Finally, the Judge holds that the circuit court did not err in denying Kawakami's motion in limine no. 1. The hotel was entitled to present evidence relevant to its theory that Kawakami's economic injury was limited to the 15% of the total service charge not paid to those employees who were servers at his event. The fact that the hotel retained 15% of the total service charges tended to make the hotel's theory of damages more likely and was therefore relevant. Moreover, Kawakami's motion in limine no. 1 is akin to a motion for partial summary judgment regarding damages. A full-text copy of the Court's June 29, 2018 Opinion is available at https://is.gd/TTD0In from Leagle.com. James J. Bickerton -- bickerton@bsds.com -- perkin@perkinlaw.com -- JPierce@perkinscoie.com -- Brandee J.K. Faria -- bjkfaria@perkinlaw.com -- Bridget G. Morgan -- morgan@bsds.com -- Kristina M. Hanson -- kristinahanson@hansonlawgrp.com -- for petitioners. David J. Minkin -- dminkin@m4law.com -- Lisa W. Cataldo -- cataldo@m4law.com -- for respondent. KESEF LLC: Fails to Pay Minimum Wages, Bonhomme Suit Alleges ------------------------------------------------------------ MARC BONHOMME, and MAXI MATHURIN, individually and on behalf of all others similarly situated, Plaintiff v. KESEF, LLC d/b/a SOHO ASIAN BAR & GRILL, and SHLOMI EZRA, Defendants, Case No. 75166665 (Fla. Cir. Miami-Dade Cty., July 18, 2018) is an action against the Defendants to recover unpaid minimum wages and tip credits pursuant to the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as non-exempt, hourly employees. The Plaintiff Bonhomme was employed from December 15, 2014 to March 7, 2018, and the Plaintiff Mathurin from August 15, 2016 to March 29, 2018. Kesef, LLC d/b/a Soho Asian Bar & Grill is a Florida company engaged in the restaurant business. [BN] The Plaintiff is represented by: Peter J. Bober, Esq. Samara Robbins Bober, Esq. BOBER & BOBER, P.A. 1930 Tyler Street Hollywood, FL 33020 Telephone: (954) 922-2298 Facsimile: (954) 922-5455 E-mail: peter@boberlaw.com samara@boberlaw.com KOCH FOODS: Court Denies Agri Stats' Bid for Protective Order ------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, denied Defendant Agri Stats Inc.'s Motion for Protective Order in the case captioned IN RE BROILER CHICKEN ANTITRUST LITIGATION, This Document Relates To: All Actions, Case No. 16 C 8637(N.D. Ill.). This matter is before the Court on Defendant Agri Stats Inc.'s Motion for Protective Order as to requests for production of documents and electronically-stored information (ESI) served by the End User Consumer Plaintiffs (EUCPs). The United States' Department of Justice Antitrust Division (DOJ) embarked on an investigation of Agri Stats. During that investigation, Agri Stats says it searched for and produced to the DOJ documents and information like what the EUCPs are requesting. At issue in Agri Stats's Motion for Protective Order are the custodial searches it ran during the DOJ investigation. Agri Stats ran custodial searches for designated custodians and it produced to the DOJ responsive documents it collected with those searches. Agri Stats Has Not Made a Threshold Showing that the Information EUCPs Are Seeking Is Not Reasonably Accessible Because of Undue Burden or Cost As Federal Rule 26(b)(2)(B) directs, a court may impose limits on discovery of ESI if a party shows that it is not reasonably accessible because of undue burden or cost. EUCPs contend that Agri Stats's claims of burden and cost are vastly overstated. The Court tends to agree with EUCPs on this record. It is not clear what it would cost in either time or money to review and produce the custodial ESI now being sought by EUCPs for the entire discovery period set forth in the ESI Protocol or even for the pre-October 3, 2102 period. It seems that Agri Stats itself also does not know for sure what it would have to do and how much it would cost because the parties have not finished that discussion. Because EUCPs say they are continuing to work with Agri Stats to reduce what it must do to comply with their discovery requests, the incremental burden on what Agri Stats now is being asked to do is not clear. Agri Stats falls woefully short of satisfying its obligation to show that the information EUCPs are seeking is not reasonably accessible because of undue burden or cost. Even if Agri Stats Had Shown Undue Burden or Cost, EUCPs Have Shown Good Cause for the Production of the Requested ESI and Agri Stats Does Not Satisfy the Rule 26(b)(2)(C) Factors Even if a party makes a threshold showing that the information sought is not reasonably accessible because of undue burden or cost, a court still may allow the discovery to proceed if the requesting party shows good cause. EUCPs Have Shown Good Cause for the Production of the Requested ESI The Court recognizes that there likely will be overlap between the material Agri Stats produced to the DOJ and the information sought in EUCPs' requests, but that overlap does not justify the broad protective order sought by Agri Stats. Critical search terms that the EUCPS want Agri Stats to run were not part of the DOJ's search, including, according to EUCPs, the words broiler, supply, reduce, price, inflate, Georgia, Dock, index as well as multiple domain names for defendants in this case. Because these terms were not searched during the DOJ investigation, there is no burden associated with purported duplication at least to the extent that data is now queried with search terms proposed by the EUCPs. Moreover, omitting these search terms runs the risk that information that is very relevant to EUCPs' case but was not as relevant to the DOJ investigation will be missed. The Court finds that EUCPs have shown there is good cause for the discovery they seek. The other Defendants in this case appear to have accepted, at least for the purposes of discovery, that the time period set forth in the ESI Protocol is the relevant time period that governs the search for and production of potentially responsive documents. EUCPs also represent that other Defendants have run their proposed search terms. It is more than reasonable that Agri Stats be required to comply with the same scope and time frame for discovery. Agri Stats Does Not Satisfy the Rule 26(b)(2)(C) Factors Even with a showing of good cause, Rule 26(b)(2)(C) provides that the discovery still may be limited if: (a) it is unreasonably cumulative or duplicative; (b) it can be obtained from some other source that is more convenient, less burdensome or less expensive; (c) the party seeking the discovery has had ample opportunity to obtain it; or (d) it is not relevant or is otherwise disproportional to the needs of the case within the meaning of Rule 26(b)(1). Considering the importance of the issues at stake in this litigation, EUCPs allege in their Second Consolidated Amended Class Action Complaint that Agri Stats was a significant participant in a large antitrust conspiracy to fix the price of Broilers and that it facilitated the conspiracy by providing the information and tools that Broiler producers needed to monitor one another and ensure that they were sticking to their agreement to reduce Broiler supply and inflate broiler prices. In exchange for these monitoring services which, EUCPs argue, allowed the Broiler producers to reap billions of dollars, broiler producers paid Agri Stats at least $45.8 million. In addition, this litigation involves a massive amount of commerce in the United States during the class period. As alleged in EUCPs' Second Consolidated Amended Class Action Complaint, the value of wholesale broilers produced in 2014 was $32.7 billion, and the market value varied between $21.8 and $20.7 billion from 2008 to 2013. EUCPs' proposed discovery is calibrated to their claims, Agri Stats is alleged to be an important player in the scheme EUCPs assert, and it is reasonable to believe that Agri Stats has information that is relevant and important to EUCPs' claims. As for the parties' relative access to the information, Agri Stats has access to all the information from its custodians to prepare its defenses. Without the production of ESI from custodial searches performed prior to October 3, 2012, EUCPs potentially will be deprived of more than three and a half years of discovery from the early class period notwithstanding that fact that Agri Stats has agreed to perform targeted searches for documents prior to October 3, 2012. The Court finds that that such a gap in access to and production of custodial documents would be unduly prejudicial to EUCPs. The Court is not persuaded by Agri Stats's burden argument. Accordingly, the Court concludes that EUCPs have shown good cause for Agri Stats to comply with the ESI Protocol and to search for and produce pre-October 3, 2012 custodial documents, and that production of that information is proportional to the needs of the case. Therefore, a blanket protective order excusing Agri Stats from performing any custodial searches prior to October 3, 2102 would not be appropriate. It Is Not Clear the Parties Have Exhausted their Obligation to Meet and Confer to Limit the Burden on Agri Stats This Order addresses only the temporal scope of the custodial searches that Agri Stats must perform because that is the thrust of Agri Stats's argument in support of its Motion for Protective Order. As explained above, the Court concludes that Agri Stats, like all other Defendants in this case, must search for and produce relevant documents and ESI from January 1, 2007, through September 2, 2106. However, it is not clear the parties have exhausted their meet and confer obligations on the issue of EUCPs' revised search terms or other proposals to reduce the burden on Agri Stats, nor is it clear that the parties have engaged with the Special Master to help resolve any issues that may be related to her domain of electronic discovery. A full-text copy of the District Court's July 26, 2018 Opinion is available at https://tinyurl.com/ybkrgunc from Leagle.com. Maplevale Farms, Inc., individually and on behalf of all others similarly situated, Plaintiff, represented by Breanna LE Van Engelen -- breannav@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Brian D. Clark -- bdclark@locklaw.com -- Lockridge Grindal Nauen P.l.l.p., Daniel Warshaw -- dwarshaw@pswlaw.com -- Pearson, Simon & Warshaw, LLP, pro hac vice, Dennis Allen Lienhardt, Jr. -- dal@miller.law -- The Miller Law Firm, P.C., pro hac vice, Devon Paul Allard -- dpa@miller.law -- The Miller Law Firm, P.C., pro hac vice, Elizabeth R. Odette -- erodette@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., Joseph C. Kohn -- jkohn@kohnswift.com -- Kohn, Swift & Graf, P.C., pro hac vice, Robert John McLaughlin -- rmclaughlin@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, Stephen M. Owen -- smowen@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., pro hac vice, Steven Alan Hart -- shart@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, Veronica W. Glaze , Pearson, Simon & Warshaw LLP, pro hac vice. Koch Foods, Inc., JCG Foods of Alabama, LLC, JCG Foods of Georgia, LLC & Koch Meats Co., Inc., Defendants, represented by Stephen Novack -- snovack@novackmacey.com -- Novack and Macey LLP, Brian E. Cohen -- bcohen@novackmacey.com -- Novack and Macey LLP, Christopher S. Moore -- cmoore@novackmacey.com -- Novack and Macey, LLP, Marie Velinda Lim -- mlim@novackmacey.com -- Novack and Macey LLP & Stephen J. Siegel -- ssiegel@novackmacey.com -- Novack and Macey LLP. Tyson Foods, Inc., Tyson Chicken, Inc., Tyson Breeders, Inc. & Tyson Poultry, Inc., Defendants, represented by John M. Tanski -- jtanski@axinn.com -- Axinn, Veltrop & Harkrider LLP-HTFD, Nicholas Gaglio -- ngaglio@axinn.com -- Axinn, Veltrop & Harkrider LLP, pro hac vice, Rachel J. Adcox -- radcox@axinn.com -- Axinn, Veltrop & Harkrider LLP, pro hac vice, Amy Beth Manning -- amanning@mcguirewoods.com -- McGuireWoods LLP, Christina M. Egan -- cegan@mcguirewoods.com -- McGuire Woods LLP, Daniel K. Oakes -- doakes@axinn.com -- Axinn, Veltrop & Harkrider LLP, pro hac vice -- jtaylor@axinn.com -- Axinn, Veltrop & Harkrider LLP, pro hac vice & Kenina J. Lee -- klee@axinn.com -- Axinn, Veltrop & Harkrider LLP, pro hac vice. KONICA MINOLTA: Faces Randolph Suit in Sacramento, California ------------------------------------------------------------- An employment-related class action lawsuit has been filed against Konica Minolta Business Solutions Inc. The case is captioned as Robert Randolph, Plaintiff v. Konica Minolta Business Solutions Inc., and Does 1-100, Defendants, Case No. 34-2018-00237087-CU-OE-GDS (Cal. Super., July 18, 2018). Konica Minolta Business Solutions, U.S.A., Inc. provides document management technologies and information technology services. Konica Minolta Business Solutions, U.S.A., Inc. was formerly known as Minolta Corporation and changed its name to Konica Minolta Business Solutions, U.S.A., Inc. in October 2003. The company was founded in 1959 and is based in Ramsey, New Jersey. Konica Minolta Business Solutions, U.S.A., Inc. operates as a subsidiary of Konica Minolta, Inc. [BN] The Plaintiff is represented by Michael D Singer, Esq. L3 TECHNOLOGIES: Underpays Mechanics, Thomas Suit Alleges --------------------------------------------------------- DAVID THOMAS, individually and on behalf of all others similarly situated, Plaintiff v. L3 TECHNOLOGIES, INC.; L-3 COMMUNICATIONS CORPORATION; L3 UNIDYNE, INC.; and DOES 1-50, inclusive, Case No. 37-2018-00035915-CU-OE-CTL (Cal. Super., Fresno Cty., July 18, 2018) is an action against the Defendants for failure to pay minimum wages, overtime, reimburse business expenses, and furnish accurate wage statements. Mr. Thomas was employed by the Defendant as mechanic. L3 Technologies, Inc. provides aerospace systems, communication, electronic, and sensor systems used on military, homeland security, and commercial platforms in the United States and internationally. The company was formerly known as L-3 Communications Holdings, Inc. and changed its name to L3 Technologies, Inc. in December 2016. L3 Technologies, Inc. was founded in 1997 and is headquartered in New York, New York. [BN] The Plaintiff is represented by: Alex M. Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Tel: (619) 325-0492 Fax: (619) 325-0496 E-mail: atomasevic@nicholaslaw.org - and – Cameron J. Gharabiklou, Esq. LAW OFFICES OF CAMERON J. GHARABIKLOU 530 B Street, Suite 1530 San Diego, CA 92101 Tel: (858) 412-0019 Fax: (619) 568-3341 E-mail: Cameron@justice-lawgroup.com LOUISIANA: Court Stays Discovery in Drug Court Program Suit ----------------------------------------------------------- The United States District Court for the Eastern District Louisiana granted Defendants' Motion to Stay Discovery in the case captioned TAYLOR CARLISLE, ET AL., SECTION: "H"(1), v. NEWELL NORMAND, ET AL., Civil Action No. 16-3767 (E.D. La.). Before the Court are the Motions to Stay Discovery filed by Patricia Klees and Sheriff Joseph Lopinto, in his official capacity as Sheriff for the Parish of Jefferson (Sheriff). The Plaintiffs' proposed class includes those probationers participating in the Drug Court Program who were sentenced to "flat time," or who were sentenced to jail time without a hearing or opportunity to defend, or without a record from which to appeal. Additionally, the Plaintiffs have a state law claim for legal malpractice pending against Joseph Merino, and plaintiff Carlisle has a negligence claim against Joe McNair and McNair & McNair, LLC, arising out counseling services provided through the Drug Court Program. Rule 26(c) provides that the Court may, for good cause, protect a party from undue burden or expense by issuing an order forbidding the disclosure or discovery or specifying terms, including time for the disclosure or discovery. Officer Klees' Motion to Stay The Plaintiffs argue that Klees' prescription claim is without merit because the allegations against Klees in the Second Amending and Supplementing Complaint relate back to the date of filing of the original complaint. Plaintiffs do not address Klees' brief argument in her motion to dismiss that Plaintiffs have failed to state a claim that would support a class action against her. Regardless, Plaintiffs do not argue any discovery is necessary to oppose Klees' prescription defense. The only discovery proceeding at this time is class certification discovery, which was ordered by the District Judge. The Plaintiffs have not explained why the testimony of Klees is necessary to class certification discovery. At this time, it does not appear the Plaintiffs are even pressing to proceed with class certification discovery. The Court finds it would be inefficient to do so now in light of the pending Motions to Dismiss. Further, to the extent the District Court determines that limited discovery should be opened for the purposes of defeating Klees' qualified immunity defense, the District Court will address this issue in resolving the Motion to Dismiss. Accordingly the Court finds that a stay of discovery as to Klees pending resolution of the Motions to Dismiss is appropriate at this time. The Sheriff's Motion to Stay The Sheriff joins in and adopts the Motion to Stay filed by Klees. He argues that he is entitled to a stay pending resolution of his motion to dismiss because he insists that no amount of discovery can lead to relevant, admissible evidence that can aid Plaintiffs in prosecuting their claims against the Sheriff. The Sheriff points out he has been subject to voluminous document discovery. The Court finds it appropriate to stay class certification discovery pending resolution of the Sheriff's Motion to Dismiss. Plaintiffs have not presented any reason why discovery must proceed now. On the other hand, the discovery that has been requested is voluminous and if the Sheriff's Motion to Dismiss is successful, then it will not have been necessary to conduct the discovery. Further, the Plaintiffs have not established that discovery is necessary to oppose the Sheriff's alternative no duty argument in its motion to dismiss. It appears that is a claim that involves analysis of the applicable statutes. A full-text copy of the District Court's July 19, 2018 Order and Reasons is available at https://tinyurl.com/yaebv9og from Leagle.com. Taylor Carlisle, individually and as Representative Member of a Class & Emile Heron, Plaintiffs, represented by Marie Riccio Wisner, Law Offices of Marie Riccio Wisner. Joe McNair, Director of Counseling of the 24th JDC Drug Court Intensive Probration Program & McNair & McNair, L.L.C., Defendants, represented by Francis Horatio Brown, III -- fbrown@mcglinchey.com -- McGlinchey Stafford, PLLC & Marshall Thomas Cox -- mcox@mcglinchey.com -- McGlinchey Stafford, PLLC. Newell Normand, Sheriff and Administrator of the Jefferson Parish Correctional Center, Defendant, represented by Daniel Rault Martiny , Martiny & Associates & Jeffrey David Martiny , Martiny & Associate. Patricia Klees, Officer, Defendant, represented by Leonard Louis Levenson , Leonard L. Levenson & Associates, Christian Wayne Helmke , Leonard L. Levenson & Associates, Colleen Boyle Gannon , Richard A. Weigand, APLC & Donna R. Barrios , Leonard L. Levenson & Associates. LUNG INSTITUTE: Stem Cell Treatment Suit Remanded to State Court ---------------------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, granted Plaintiffs' Motion to Remand the case captioned TAMMY RIVERO, et al., Plaintiffs, v. LUNG INSTITUTE, LLC, Defendant, Case No. 8:17-cv-3113-T-23MAP (M.D. Fla.). Tammy Rivero and Howard Bennett each paid the Tampa Lung Institute for stem cell treatment but without, or so the plaintiffs allege, a satisfactory result. Rivero sued Lung Institute in state court under Florida statutory and common law and alleged the deceptive marketing of an ineffectual medical treatment. The Court holds that RMS, a non-party, cannot remove the action. Only the defendant or the defendants can remove an action under 28 U.S.C. Section 1446. A non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings. However, Lung Institute fails in the attempt to retroactively receive the benefit of RMS's putative but failed removal attempt. The plaintiffs state correctly that the defendant's support for removal: is based on removal by a non-party, non-intervenor, non-participant of this action. RMS's removal was initially improper. However, Lung Institute continues to rely on the motion of a non-party, non-intervenor, non-participant. By way of adopting and joining RMS's opposition to Plaintiff's motion to remand, Lung Institute is effectively seeking to insert itself as the removing party. However, since Lung Institute's 30-day window in which to remove has long since expired, it cannot now assert that it is substituting itself for RMS. Simply stated, Lung Institute is time-barred from removal. CAFA's discretionary exception Under 28 U.S.C. Section 1332(d)(3)(A)-(F), six factors are considered in deciding whether to decline jurisdiction. No single factor is dispositive. Whether the claims asserted involve matters of national or interstate interest RMS owns five Lung Institutes nationwide, but the plaintiffs sue only the Tampa facility. The plaintiffs argue that Florida has a strong interest in regulating business within its borders. RMS asserts that the defendant advertises nationwide and that patients travel long distances for treatment. Whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States The plaintiffs assert all their claims under Florida law. RMS argues that foreign law might govern the plaintiffs' common law claims for breach of fiduciary duty and for conspiracy and that these claims have not yet undergone a choice of law analysis. The civil RICO and civil conspiracy claims allege that out-of-state Lung Institutes and out-of-state individuals conspired with the Tampa Lung Institute, but RMS argues that the plaintiffs offer no analysis of why the out-of-state co-conspirators are subject to Florida law. Whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction RMS argues (1) that the plaintiffs admit to having crafted the third amended complaint to avoid federal jurisdiction and (2) that, because Plaintiffs have artificially restricted a natural proposed class, this weighs in favor of retaining federal jurisdiction. RMS suggests (1) that a natural proposed class would be the patients of all five Lung Institutes because the treatments and practices about which Plaintiffs complain are shared by all five Lung Institutes and (2) that by restricting the class to only patients of one of the Lung Institutes, and by omitting federal claims that are commonly filed in false advertising cases (such as a Lanham Act claim), Plaintiffs have done what Congress sought to avoid gerrymander a single state class. Whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants RMS asserts that other states have a significant interest in this litigation. 5.50% of Tampa Lung Institute's patients are citizens of Texas and 5.04% of Tampa Lung Institute's patients are citizens of Georgia. Citing a report from the United States Senate Committee on the Judiciary, RMS asserts that because a state other than Florida contains over 5% of putative class members, the putative class members are widely dispersed thus both Texas and Georgia have a strong interest in the action, which favors the district court's adjudicating this action. But a report of the Committee lacks binding authority on a federal court. Whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States As a representative sample, of the thirty-three Plaintiffs who have retained the [plaintiffs' lawyer], other than the nineteen Florida citizens: three are citizens of MI, two PA, two CA, and one of each from WI, NH, NJ, VA, GA, AZ, and NC. Whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed During the three-years before the plaintiffs sued, no class actions were filed against the Tampa Lung Institute or any of her sister entities. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/y82ccqk3 from Leagle.com. Tammy Rivero, Individidually and on behalf of all others similarly situated & Howard Bennett, Individidually and on behalf of all others similarly situated, Plaintiffs, represented by Ben Andrew Vinson, Jr. -- ben@vinsonlawoffice.com -- Vinson Law LLC. Lung Institute, LLC, Defendant, represented by Megan R. Stelljes -- ben@vinsonlawoffice.com -- Foley & Lardner, LLP, Naikang Tsao -- ntsao@foley.com -- Foley & Lardner LLP, Nicholas E. Williams -- nwilliams@foley.com -- Foley & Lardner, LLP & Louis Xavier Amato -- louisa@louamato.com -- Louis X. Amato, PA. LUXOTTICA RETAIL: Calif. Court Dismisses Unfair Competition Suit ---------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendants' Motion to Dismiss the case captioned SANDRA SEEGERT, Plaintiff, v. LUXOTTICA RETAIL NORTH AMERICA, INC.; and LUXOTTICA GROUP S.P.A., Defendants, Case No. 17cv1372 JM(BLM)(S.D. Cal.). Luxottica, an Italian corporation, is alleged to be the largest eyewear company in the world, operating retail brands such as LensCrafters and Pearle Vision. LensCrafters operates 130 stores in California and over 880 stores nationwide. Defendants market prescription lenses and eyewear, and provide vision care services such as eye exams and customized fittings. The SAC, filed on March 15, 2018, alleges three causes of action for violation of California's (1) Unfair Competition Law ("UCL"), Bus & Prof Section 17200 et seq., (2) False Advertising Law ("FAL"), Bus & Prof Section 17500 et seq., and (3) Consumer Legal Remedies Act ("CLRA"), Civ Code §1750 et seq. The Plaintiff asserts jurisdiction pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. §1332(d)(2), and brings this action on behalf of herself and others similarly situated and defined as: All persons who, within the State of California, from July 5, 2013 through the present (the Class Period), purchased lenses offered at the discount promotion __% Off Lenses with Frame Purchase at a Lens Crafters retail store and who have not received a refund or credit for their purchase(s). Defendants Luxottica Retail North America Inc., dba LensCrafters and Luxotica Group S.P.A., (LensCrafters), move to dismiss the Second Amended Complaint for failure to state a claim. Under Rule 9(b), claims sounding in fraud, such as the Plaintiff's claims for violation of the UCL, FAL, and CLRA, must state with particularity the circumstances constituting the fraud. Rule 9(b) is satisfied by allegations of the time, place, and nature of the alleged fraudulent statements. The Plaintiff's central allegation is that the promotion or advertisement, 40% Off Lenses With Frame Purchase, is deceptive. The Plaintiff identifies no other allegedly deceptive characteristic of the advertisement. In constructing its deception argument, the Plaintiff alleges that the lenses were never offered at full price and never sold at the original price either with or without the purchase of eyeglass frames and, therefore, the promotion is materially deceptive. In large part, the Plaintiff argues that these conclusory allegations are sufficient under Rule 9(b) to describe the nature of the consumer fraud with particularity because the Plaintiff's counsel conducted a pre-suit investigation. In the spring of 2015, the Plaintiff's counsel launched an investigation into the pricing practices of dozens of retail stores in San Diego County that were engaged in allegedly improper sale-discounting policies. The investigation focused on advertisers who utilized false regular prices and the investigators recorded the prices of the corresponding discounts on products offered for sale. The Plaintiff's counsel investigated five San Diego LensCrafters retail stores and concluded that the lenses were never sold at the regular undiscounted price either with ours without the purchase of a pair of eyeglass frames. Furthermore, the Plaintiff's Counsel's investigation confirmed that Lens Crafters' prescription lenses were priced with false discounts from illusory regular or reference prices. Given the investigation by the Plaintiff's counsel at five different San Diego LensCrafter's locations, it is virtually inconceivable that the investigators did not attempt to purchase, or otherwise cause to be purchased, prescription lenses, without also purchasing eyeglass frames, or to take other affirmative steps to investigate the central claim. While the parties have likely expended substantial resources to date, conspicuously absent from the allegations in the SAC is any reference to a purchase or an attempted purchase of comparable lenses, without frames. Such a straight-forward effort would not have required the commencement of formal discovery, as asserted by Plaintiff, and would provide particular facts to support or negate Plaintiff's central claim that LensCrafters never sells prescription lenses at the original price. As a predicate to filing a claim, one would logically assume that the Plaintiff's investigators conducted a thorough investigation and obtained specific information to support (or negate) the Plaintiff's conclusory claims. Whatever the nature and extent of the Plaintiff's undisclosed investigation, the SAC fairs no better than the First Amended Complaint in stating claims for violation of the UCL, FAL, and CLRA. A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/yd2luqqt from Leagle.com. Sandra Seegert, Plaintiff, represented by Todd D. Carpenter -- tcarpenter@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP. LensCrafters, Inc., an Ohio corporation, Luxottica Retail North America, Inc., an Ohio corporation & Luxottica Group, S.P.A., an Italian corporation, Defendants, represented by Stephanie A. Sheridan -- ssheridan@steptoe.com -- Steptoe & Johnson LLP. MAGIC LAUNDRY: Fails to Pay Proper Wages, Juarez Suit Alleges ------------------------------------------------------------- MARIA D. JUAREZ, individually and on behalf of all others similarly situated, Plaintiff v. MAGIC LAUNDRY SERVICES, INC.; PARTNERS RISK SPECIALISTS, INC.; PARTNERS RISK SOLUTIONS, LLC; BRIDGE GROUP; and DOES 1 through 100, inclusive, Case No. BC713767 (Cal. Super., Los Angeles Cty., June 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Ms. Juarez was employed by the Defendants as hourly, non-exempt employee. Magic Laundry Services, Inc. is a California corporation doing business in Los Angeles, California. [BN] The Plaintiff is represented by: Mehrdad Bokhour, Esq. BOKHOUR LAW GROUP, P.C. 1901 Avenue of the Stars, Suite 450 Los Angeles, CA 90067 Telephone: (310) 975-1493 Facsimile: (310) 300-1705 - and – Jonathan Melmed, Esq. MELMED LAW GROUP P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 MANUFACTURERS AND TRADERS: D. Franklin Suit Remains in Dist. Court ------------------------------------------------------------------ The United States District Court for the Southern District of West Virginia, Bluefield, denied Plaintiffs' Motion to Remand the case captioned DARLENNA FRANKLIN and CURTIS FRANKLIN, Plaintiffs, v. MANUFACTURERS AND TRADERS TRUST COMPANY, d/b/a/ M&T BANK, Defendant, Civil Action No. 1:18-00587(S.D.W.V.). Plaintiffs, Darlenna and Curtis Franklin, became delinquent on their mortgage sometime. The Plaintiffs retained an attorney who notified the defendant, Manufacturers & Traders Trust Company (M&T Bank), of his representation by letter. THe Defendant acknowledged receipt of this letter. Thereafter, M&T Bank allegedly continued contacting plaintiffs by telephone and mail. THe Plaintiffs filed their complaint in Mercer County Circuit Court alleging these communications violated the West Virginia Consumer Credit and Protection Act (WVCCPA), West Virginia Computer Crime and Abuse Act, and constituted an invasion of privacy. M&T Bank filed a notice of removal to this court, alleging that it became aware that removal was appropriate under the Class Action Fairness Act of 2005 (CAFA). The court must first determine what standard M&T Bank is held to in ascertaining that the case is removable under 28 U.S.C. Section 1446(b)(3). THe Plaintiffs claim that their June 2016 Amended Complaint provided M&T Bank with a clue that removal was appropriate, triggering the removal period and requiring M&T Bank to engage in due diligence as to the numerosity and amount in controversy thresholds. In analyzing Section 1446, the United States Court of Appeals for the Fourth Circuit in Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997), stated: "The Court concludes only where an initial pleading reveals a ground for removal will the defendant be bound to file a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the case stated by the initial pleading not removable, and the defendant will have 30 days from the revelation of grounds for removal in an amended pleading, motion, order, or other paper to file its notice of removal." The Court will not require courts to inquire into the subjective knowledge of the defendant, an inquiry that could degenerate into a mini-trial regarding who knew what and when. Rather, we will allow the court to rely on the face of the initial pleading and on the documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleading or subsequent paper. While Lovern was decided prior to CAFA's enactment, every circuit to have addressed this issue has likewise adopted some form of a bright-line rule that limits the court's inquiry to the clock-triggering pleading or other paper' in order to determine removability. Instead, these courts have required the plaintiff to provide a sufficiently detailed and unequivocal statement from which the defendant may unambiguously ascertain that the CAFA jurisdictional requirements have been satisfied. Therefore, under this bright-line rule, a defendant is not required to search its own business records or 'perform an independent investigation into a plaintiff's indeterminate allegations to determine removability. After reviewing the Amended Complaint, the court determines that it did not give M&T Bank adequate notice of grounds for removal under CAFA. The Amended Complaint generally requests actual, statutory, compensatory, and punitive damages along with costs and attorney's fees. The only specific damages apparent within the four corners" of the Amended Complaint are the $5,519.02 bill allegedly owed by Darlenna and Curtis Franklin. This does not overcome CAFA's $5,000,000 threshold, and M&T Bank is not required to deduce the damages in controversy for the proposed class from this bill alone. Moreover, with regard to CAFA's numerosity requirement, the Amended Complaint offers no concrete size of the class, but only a blanket assertion that joinder would be impractical. Because the Amended Complaint fails to affirmatively establish that the damages requested and the class size are sufficient for federal jurisdiction under CAFA, the plaintiffs would require M&T Bank to use its own efforts to ascertain if the Amended Complaint met the thresholds of CAFA, in stark contrast with Lovern. A full-text copy of the District Court's July 19, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ycpx6c7l from Leagle.com. Darlenna Franklin & Curtis Franklin, Plaintiffs, represented by Christopher B. Frost -- cfrost@hamiltonburgess.com -- HAMILTON BURGESS YOUNG & POLLARD, Jed Robert Nolan , MOUNTAIN STATE JUSTICE, INC., Jonathan R. Marshall -- jmarshall@baileyglasser.com -- BAILEY & GLASSER, Patricia M. Kipnis -- pkipnis@baileyglasser.com -- BAILEY & GLASSER, Ralph C. Young , HAMILTON BURGESS YOUNG & POLLARD & Steven R. Broadwater, Jr. , HAMILTON BURGESS YOUNG & POLLARD. Manufacturers and Traders Trust Company, doing business as M&T Bank, Defendant, represented by Justin J. Kontul -- jkontul@reedsmith.com -- REED SMITH, Richard David Owen -- rdo@goodwingoodwin.com -- GOODWIN & GOODWIN & Roy W. Arnold -- rarnold@reedsmith.com -- REED SMITH, pro hac vice. MATSUYA QUALITY: Summary Judgment Bid in FLSA Suit Denied --------------------------------------------------------- In the case, XIN WEI LIU, Plaintiff, v. MATSUYA QUALITY JAPANESE INC., d/b/a Matsuya Quality Japanese Eats, MATSUYA OF GREAT NECK, INC., d/b/a Matsuya, BERNARD BENLEVI Defendants, Case No. 16-cv-3624 (ERK)(VMS)(E.D. N.Y.), Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York denied the Defendants' motion for summary judgment. Liu formerly worked at a restaurant and caterer known as Matsuya. In June 2013, Benlevi hired Liu as a sushi chef. Liu worked at Matsuya from June 2013 until he quit in September 2015. Liu's job interview, they orally agreed to certain terms of employment, but each side characterizes the agreement differently. According to Benlevi, Liu was offered a minimum guarantee of $750 per week, with a base rate of $10 per hour and $15 for overtime. He also offered Liu an additional $50 bonus for each party he worked. But according to Liu, the agreement was slightly different: he testified that he was simply offered $750 for 40 hours of weekly work, with no explicit base hourly rate. The parties have produced two sets of evidence that bear directly on Liu's total hours and compensation: the "notebook" and the compensation schedules. The notebook reveals Liu's total weekly hours and compensation for most weeks from April 14, 2014, through Sept. 13, 2015. It shows that, during that period, Liu nearly always worked more than 40 hours a week, averaging roughly 59. Moreover, it apparently reveals the following compensation arrangement: Liu would nearly always receive at least $800 per week. If Liu worked more than 55 hours, he would be paid an additional $15 per hour for hours 55 through 60, and then another $20 per hour for every hour above 60. Additionally, Liu would receive a $50 bonus for each party he worked, as well as additional compensation for any hours worked before 8 a.m. Liu has also produced a sheet, seemingly from the notebook, that explicitly outlines this arrangement. According to the Defendants, Benlevi would give Liu a weekly compensation schedule shortly after making each payment. The compensation schedule, however, calculates the hours differently. The compensation schedule yields the same bottom line as in the notebook, but, as should be evident, the accounting method differs substantially and suggests a different compensation arrangement from the one apparent in the notebook. After quitting on Sept. 20, 2015, Liu filed a complaint against Benlevi with the New York State Department of Labor ("DOL"), alleging failure to pay overtime, along with other violations of state labor laws. After investigating Matsuya, the DOL found a minimum wage/overtime underpayment with respect to both Liu and another employee. Moreover, it concluded that Benlevi had failed to keep adequate records, in violation of New York Labor Law Section 661, and that he had failed to furnish pay statements to employees, in violation of Part 146-2.3 of the Hospitality Industry Wage Order. The DOL determined that Benlevi owed Liu $9,380.25 in unpaid wages, plus $2,345.06 in "liquidated damages." It also found that he owed the other employee a total of $53,047.50. In June 2016, Liu initiated the present action -- stylized as a collective and class action -- alleging: (1) that the Defendants violated the Fair Labor Standards Act ("FLSA")'s overtime pay requirements; (2) that the Defendants violated the New York Labor Law ("NYLL")'s overtime and spread of hours requirements; (3) that they failed to provide notices and statements as required by NYLL Section 195(1); and (4) that the Defendants failed to provide detailed pay stubs as required by NYLL Section 195(3). Liu later amended his complaint, dropping the class and collective action claims, but also adding as a Defendant Matsuya of Great -- another corporate entity that also allegedly owned and operated the restaurant. In response, the Defendants counterclaimed that Liu was liable under New York's "faithless employee doctrine," which obligates employees to exercise the utmost good faith and loyalty in the performance of their duties. They claimed that Liu violated this duty by (1) willfully misrepresenting his hours and then demanding and receiving compensation for hours he never worked; (2) seizing two of the restaurant's journals in which his working hours and other information were recorded; and (3) filing false and misleading claims with the DOL. After engaging in discovery, the Defendants have now moved for summary judgment on all four causes of action, and on their counterclaim as to liability only. Liu has not cross moved for summary judgment. Judge Korman denied the Defendants' motion for summary judgment. He finds that a reasonable jury could find that Liu did not intend and understand that his weekly salary would include overtime premiums. And if so, Liu's compensation arrangement violated the FLSA and NYLL. Summary judgment for the Defendants is therefore unwarranted. A reasonable jury could also find that Benlevi agreed to treat those breaks as hours worked for the purposes of calculating overtime. As demonstrated by the notebook, Benlevi paid Liu overtime rates for hours worked above 55 a week. That rate may not have been sufficient under the FLSA. But Benlevi still had an overtime payment scheme for Liu. And in applying that scheme, Benlevi counted all the reported hours, even though he clearly knew some were spent on a break. When these facts are construed in the light most favorable to Liu, a reasonable jury could find that Benlevi agreed to count Liu's breaks as hours worked for the purposes of determining overtime. Accordingly, the Judge finds that Liu's total hours included breaks does not entitle the Defendants to summary judgment. He also finds that the Defendants' last-ditch fluctuating workweek argument is unavailing. The Defendants' fluctuating workweek argument is confusing given that it contradicts their version of the facts. Summary judgment is inappropriate on the Plaintiff's FLSA and NYLL overtime claims. Liu alleges that the defendants failed to make such payments. The Defendants, in seeking summary judgment on this claim, point to their compensation schedules, which provide that "spread hrs" were added for each day Liu worked more than 10 hours. But the problem is that the notebook suggests that Liu did not receive any spread-of-hours pay. Given these contradictory documents, the Judge holds summary judgment is inappropriate. Finally, because conflicting evidence exists as to whether Liu received the required wage statements, summary judgment is inappropriate on Liu's NYLL wage-notice claims as well. As for the Defendants' counterclaims, the Judge finds that Liu has put forth enough evidence for a jury to conclude that his accusations have merit. Indeed, after conducting its own investigation, the DOL actually found that Liu's claims were legitimate. A full-text copy of the Court's June 29, 2018 Memorandum and Order is available at https://is.gd/VRoPL4 from Leagle.com. Xin Wei Liu, individually and on behalf of all other employees similarly situated, Plaintiff, represented by Keli Liu -- kliu@hanglaw.com -- Hang & Associates, PLLC, Paul Mendez -- pmendez@hanglaw.com -- Hang and Associates, PLLC, Phillip Hakyeon Kim -- pkim@hanglaw.com -- Hang & Associates, PLLC & Jian Hang -- jhang@hanglaw.com -- Hang & Associates, PLLC. Matsuya Quality Japanese Inc., doing business as, Bernard Benlevi & MATSUYA OF GREAT NECK, INC. d/b/a Matsuya, Defendants, represented by Kenneth B. Schwartz -- SchwartzEsq@aol.com -- Schwartz Law Group PC. Bernard Benlevi, Matsuya Quality Japanese Inc. & MATSUYA OF GREAT NECK, INC. d/b/a Matsuya, Counter Claimants, represented by Kenneth B. Schwartz, Schwartz Law Group PC. Xin Wei Liu, individually and on behalf of all other employees similarly situated, Counter Defendant, represented by Keli Liu, Hang & Associates, PLLC, Jian Hang, Hang & Associates, PLLC & Phillip Hakyeon Kim, Hang & Associates, PLLC. MATTHEWS DINER: Uribe Suit Moved to District of New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against Matthews Diner Inc. The case is captioned as ROSALIO URIBE ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. MATTHEWS DINER INC., D/B/A MATTHEWS DINER AND PANCAKE HOUSE; and SAM MATTHEWS, the Defendant, Case No. 2:18-cv-12545 (D.N.J., Aug. 8, 2018). Matthews Diner is in restaurant business.[BN] The Plaintiff appears pro se. MCDONALD'S: Gave Away $15MM to Customers Following Settlement ------------------------------------------------------------- Kate Taylor, writing for Business Insider, reports that fond memories of McDonald's Monopoly giveaway may have soured with the news that the game was rigged. However, many customers may not have realized they missed out on another chance to be a millionaire in the aftermath of the scam. The story of how former police officer Jerry Jacobson masterminded a scheme to defraud McDonald's out of more than $24 million through its Monopoly promotion has been making the rounds after The Daily Beast ran an in-depth report on the incident. Launched in 1987, McDonald's Monopoly game offered customers the chance to win up to $1 million if they collected the right pieces. Jacobson reportedly worked at the company that printed the game pieces and came up with a scheme in which he would provide people with the winning Monopoly pieces in exchange for a cut of the money. Mr. Jacobson's network won almost every prize in the Monopoly game for 12 years, until the scheme began to fall apart after the FBI received a tip in 2000. In 2001, more than 50 people were convicted of mail fraud and conspiracy in connection with the Monopoly scheme. McDonald's was not implicated in the scheme, but it pledged it would hold a new giveaway to return money claimed by Mr. Jacobson's network back to customers who had tried to win the Monopoly giveaway fair and square. Two weeks after the attorney general revealed the game had been rigged, the chain gave away $10 million to 55 random customers. However, the $10 million wasn't enough. As part of the settlement for a class-action lawsuit against the chain, related to the Monopoly scam, McDonald's agreed to give away another $15 million to random customers -- $1 million per winner. "We made a commitment to return this money to our customers that should have been part of the prize pools" Douglas Freeland, then the US marketing director for McDonald's, told the New York Times in 2004. "With the second giveaway, we will have done that." In March 2004, the chain quietly awarded 15 random customers $1 million each. There were no Monopoly pieces and minimal marketing, as two customers had previously sued the chain arguing that promoting the giveaway would drive sales and negate its purpose. Instead, the winner was determined by picking a random time of day at a random restaurant, and awarding whoever walked in the door at that moment $1 million. "I didn't know what was going on," one winner named Erika Mendez told The Oklahoman at the time. "I completely forgot I was in there for food. They finally had to ask me, 'So what do you want?' I didn't take it too seriously. I thought, 'There has to be a catch to this.'"[GN] MDL 2545: Court Denies Certification of Nation-wide Class of TPPs ----------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, denied Plaintiffs' Motion for Class Certification in the case captioned IN RE: TESTOSTERONE REPLACEMENT THERAPY PRODUCTS LIABILITY LITIGATION. This document relates to: MEDICAL MUTUAL OF OHIO, Plaintiff, v. ABBVIE INC., et al., Defendants, MDL No. 2545(N.D. Ill.). Medical Mutual of Ohio (MMO) has moved to certify a nationwide class of TPPs and an Ohio state sub-class of TPPs. In this MDL proceeding, thousands of individual plaintiffs have brought personal injury lawsuits against defendants, who are manufacturers, promoters, and sellers of testosterone replacement therapy (TRT) drugs. The individual plaintiffs allege that defendants' TRT drugs caused them to suffer serious cardiovascular and venous thromboembolic injuries. Class Certification To be certified, a proposed class must satisfy all four requirements of Rule 23(a):"(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. MMO requests certification of the proposed class under Rule 23(b)(3), which requires that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Proposed class definitions MMO defines its proposed nationwide and Ohio state sub-classes as follows and contends that putative class members number in the thousands: Nationwide Class All third-party payors (TPPs) in the United States and its territories from January 1, 2000 through January 31, 2014, that have (1) covered the cost of one or more of Defendants' TRT drug products through insurance or employee benefit programs, and (2) included one or more of Defendants' TRT drug products on a formulary. TPPs include insurance companies, healthcare benefit plans, health maintenance organizations, union health and welfare plans, self-funded employer health and welfare plans, and employee or retiree health plans. Excluded from the class are: a. The Defendants and their officers, directors, employees, predecessors-in-interest, successors-in-interest, assignees, affiliates and subsidiaries; b. All governmental entities, except for government-funded employee, retiree and Medicare Part D plans provided through private insurance companies; c. All pharmaceutical wholesalers or distributors that purchased one or more of the Defendants' TRT drug products for purposes of resale; and d. Pharmacy Benefit Managers. Ohio State Sub-ClassAll third-party payors (TPPs) in Ohio from January 1, 2000 through January 31, 2014, that have (1) covered the cost of one or more of Defendants' TRT drug products through insurance or employee benefit programs, and (2) included one or more of Defendants' TRT drug products on a formulary. TPPs include insurance companies, healthcare benefit plans, health maintenance organizations, union health and welfare plans, self-funded employer health and welfare plans, and employee or retiree health plans. Excluded from the class are: a. The Defendants and their officers, directors, employees, predecessors-in-interest, successors-in-interest, assignees, affiliates and subsidiaries; b. All governmental entities, except for government-funded employee, retiree and Medicare Part D plans provided through private insurance companies; c. All pharmaceutical wholesalers or distributors that purchased one or more of the Defendants' TRT drug products for purposes of resale; and d. Pharmacy Benefit Managers. Adequacy of representation Federal Rule of Civil Procedure 23(a)(4) requires a showing that the representative part will fairly and adequately protect the interests of the class. Adequacy of representation is composed of two parts: the adequacy of the named plaintiff's counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest of the class members. The Defendants, however, argue that MMO is an inadequate class representative because it is vulnerable to several individualized defenses. The Defendants contend that MMO is an atypical class representative for the same reasons. The Court agrees with the defendants that MMO is particularly vulnerable to defenses regarding its claims of reliance and injury. For these reasons, MMO cannot adequately represent the class. First, MMO did not implement a prior authorization requirement for topical TRTs until nearly four years after it alleges it first received notice of defendants' alleged fraud. More specifically, despite alleging that the FDA's January 2014 DSC triggered such notice; despite proffering an expert opinion stating the same; and despite filing this lawsuit in November 2014, MMO did not approve a prior authorization requirement for the TRT drugs at issue until July 2016 and did not implement the requirement until late 2017. Second, the Court doubts MMO's adequacy as a class representative in light of Dr. Giaquinta's opinions and the testimony of MMO's Vice President of Pharmacy, Dr. Canaday, that MMO's formulary and utilization management practices did not comport with industry standards. The Court concludes that the evidence of MMO's unconventional pharmacy management practices could hinder its ability to prove crucial elements of its case such as receipt of and reliance on defendants' alleged misrepresentations. The Court concludes that MMO is an inadequate class representative and on that basis denies MMO's motion for class certification. Predominance The Court denies MMO's motion for class certification for the independent reason that questions of law or fact common to class members will not predominate over any questions affecting only individual members. Rule 23(b)(3)'s predominance requirement calls upon courts to give careful scrutiny to the relation between common and individual questions in a case. It asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. The predominance requirement is met when `common questions represent a significant aspect of a case and can be resolved for all members of a class in a single adjudication. MMO contends that common evidence can be used to prove nearly every issue in this case. Defendants argue that there are no common' questions central to each TPP's claim as to any Defendant. After carefully reviewing the evidence, the Court concludes that individual issues will predominate over common ones. The Court denies MMO's motion for class certification. A full-text copy of the District Court's July 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ycbv7f8n from Leagle.com. In Re: Testosterone Replacement Therapy Products Liability Litigation, In Re, represented by Norman E. Siegel -- siegel@stuevesiegel.com -- Stueve Siegel Hanson LLP. Kenneth Aurecchia & Stephen Benn, Plaintiffs, represented by Benedict P. Morelli, Morelli Alters Ratner LLP, pro hac vice, David Stuart Ratner -- david@davidratnerlawfirm.com -- David Ratner Law Firm, pro hac vice, David T. Sirotkin , Morelli Alters Ratner LLP, pro hac vice & Trent B. Miracle -- tmiracle@simmonsfirm.com -- Simmons Hanly Conroy. Stephen Marino, Plaintiff, represented by Benedict P. Morelli, Morelli Alters Ratner LLP, pro hac vice, Brendan A. Smith, Simmons Hanly Conroy, David Stuart Ratner, David Ratner Law Firm, pro hac vice, David T. Sirotkin, Morelli Alters Ratner LLP, pro hac vice, Peter J. Flowers, Meyers & Flowers, LLC & Trent B. Miracle, Simmons Hanly Conroy. Steven Myers, Plaintiff, represented by Benedict P. Morelli, Morelli Alters Ratner LLP, pro hac vice, Brendan A. Smith, Simmons Hanly Conroy, David Stuart Ratner, David Ratner Law Firm, pro hac vice, David T. Sirotkin, Morelli Alters Ratner LLP, pro hac vice & Trent B. Miracle, Simmons Hanly Conroy. Eli Lilly and Company, Defendant, represented by Janet H. Kwuon -- jkwuon@reedsmith.com -- Reed Smith Llp, David Edward Stanley -- dstanley@reedsmith.com -- Reed Smith LLP, Jennifer Lynn Saulino -- jsaulino@cov.com -- Covington & Burling LLP, Margaret Grignon -- MGRIGNON@GRIGNONLAWFIRM.COM -- Reed Smith, Michael X. Imbroscio -- mimbroscio@cov.com -- Covington & Burling, LLP & Timothy Robert Carwinski -- tcarwinski@reedsmith.com -- Reed Smith LLP. Abbott Laboratories, Inc., Defendant, represented by David M. Bernick -- dbernick@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, Hope S. Freiwald -- hope.freiwald@dechert.com -- Dechert LLP, Christopher Boisvert -- chip.boisvert@dechert.com -- Dechert LLP, Christopher S. Burrichter -- christopher.burrichter@dechert.com -- Dechert LLP, Friedrich-wilhelm W. Sachse -- Dechert Llp, Katherine Unger Davis, Dechert LLP, pro hac vice, Michelle H. Yeary -- michelle.yeary@dechert.com -- Dechert Llp, pro hac vice, Nathan E. Hoffman -- nathan.hoffman@dechert.com -- Dechert LLP & Thomas Joseph Dammrich, II -- tdammrich@shb.com -- Shook, Hardy & Bacon LLP. Lilly USA, Inc. & Lily USA, LLC, Defendants, represented by David Edward Stanley , Reed Smith LLP. MENTOR CORP: Court Allows Amendment in Urbieta Couple's Suit ------------------------------------------------------------ The United States District Court for the District of Minnesota overruled Defendants' Objection of Order Granting Plaintiffs' Motion to Alter/Amend/Supplement Pleadings in the case captioned Graciela Urbieta and Mateo Urbieta, Plaintiffs, v. Mentor Corporation and Mentor Worldwide LLC, Defendants. Civil No. 13-1927 ADM/LIB. (D. Minn.) This matter is before the United States District Judge for a ruling on Defendants' Objection to Magistrate Judge's Order granting Plaintiffs Graciela Urbieta and Mateo Urbieta's (Urbietas) Motion to Alter/Amend/Supplement Pleadings. The Urbietas are members of a group of plaintiffs who have filed cases against Mentor based upon Mentor's design, manufacture, and sale of a transobturator vaginal sling device (ObTape) used for treating urinary incontinence. The Urbietas allege that the ObTape was defective and caused serious and permanent bodily injuries, including erosion of the ObTape medical device through Graciela Urbieta's internal bodily tissues, chronic infections, pain, exacerbation of urinary incontinence, and the need for multiple additional surgical procedures and medical treatment as well as the need for extensive future medical care. Mentor's Objection Mentor argues that the Punitive Damages Order is contrary to law because it fails to apply Minnesota law. According to Mentor, Judge Rau's misapplication of Shady Grove lead to the erroneous conclusion that Rule 15 governs the motion to amend. Shady Grove In Shady Grove, the Supreme Court addressed whether Federal Rule of Civil Procedure 23 governing class actions conflicted with a New York state law that precludes class action suits seeking penalties or statutory minimum damages. The plaintiff brought a putative class action in federal court on diversity grounds, seeking to collect unpaid statutory interest under a New York state law. Under New York law, statutory interest is a penalty. Therefore, the plaintiff's case would have been barred by Section 901 had it been brought in state court. The case was dismissed by the district court for lack of subject matter jurisdiction. The Second Circuit affirmed, holding that Rule 23 and § 901 did not conflict, and that Section 901 was substantive and must therefore be applied by federal courts sitting in diversity. In a fragmented 4-1-4 decision, the Supreme Court reversed. Justice Scalia delivered the opinion of the court with respect to Parts I and II-A. In Part II-A, the court reiterated the familiar two-step framework that applies when a federal rule and a state law both seemingly govern. The first step is determining whether the federal rule directly conflicts with the state law. A direct conflict exists if the federal rule answers the question in dispute. If it does, the federal rule applies unless it exceeds statutory authorization or Congress's rulemaking power. The Punitive Damages Order's Application of Shady Grove Under Shady Grove and predecessor cases, Judge Rau viewed the first step of the analysis as whether Rule 15 answers the question of whether Plaintiffs may amend their complaints to seek punitive damages. Judge Rau determined the answer to be yes because Rule 15 permits amending a complaint when justice so requires. In contrast, Minn. Stat. Section 549.191 requires affidavits showing the factual basis for the claim, which requires a court to exercise its gate0keeping function by examining submissions outside the pleading. If prima facie evidence supports the motion, it shall be granted. The when justice so requires standard of Rule 15 does not require evidentiary proof. As Judge Rau explained, under Rule 15 an amendment shall be permitted so long as the amended complaint is not futile, meaning it can survive a motion to dismiss under Rule 12(b)(6). In assessing the sufficiency of a pleading in the context of Rule 12(b)(6) motion, a court is generally prohibited from considering matters outside the pleadings. Accordingly, Judge Rau determined that Rule 15 affirmatively answers the question of whether the amended pleading should be permitted. The Merits of Mentor's Objection Mentor argues that Justice Stevens concurring opinion in Shady Grove established a middle, narrower holding and it therefore controls under Marks v. United States, 430 U.S. 188, 193-94 (1977). According to Mentor, Judge Rau's failure to adhere to Justice Stevens' framework resulted in a faulty analysis that supports an erroneous conclusion. First, Mentor contends that Judge Rau erred by not applying any of Justice Stevens' concurrence when assessing whether Rule 15 answers the question in dispute. Mentor argues that Judge Rau improperly truncated step one" by failing to consider whether Rule 15 can operate alongside Minn. Stat. Section 519.191, because a federal rule, like any federal law, must be interpreted in light of many different considerations, including sensitivity to important state interests and regulatory policies. Mentor asserts that Judge Rau failed to determine whether Rule 15 can operate in tandem with the Minnesota law. Mentor's argument is unpersuasive. The linchpin of Mentor's position is that Justice Stevens' concurring opinion controls pursuant to Marks. Under Marks, when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. In Shady Grove, however, Justice Stevens agreed with the portion of Justice Scalia's opinion that set forth the analysis for step one, which was derived from Supreme Court cases that remain good law. In this part of his opinion, Justice Scalia was writing for a five justice majority that included Justice Stevens. Therefore, some courts view Justice Scalia's opinion with respect to step one of the analysis as controlling. Although other courts have reached the opposite conclusion, Judge Rau's decision to rely upon Justice Scalia's opinion for this step is not clearly erroneous or contrary to law. The Punitive Damages Order is not clearly erroneous or contrary to law. A full-text copy of the District Court's July 19, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y89d8l3l from Leagle.com. Graciela Urbieta & Mateo Urbieta, Plaintiffs, represented by Daniel J. Thornburgh , Aylstock, Witkin, Kreis & Overholtz, PLLC, Douglass A. Kreis , Aylstock, Witkin, Kreis & Overholtz, PLLC, pro hac vice, Edward F. Blizzard , Blizzard & Nabers, LLP, pro hac vice, Katherine Lindsey Cornell , Blizzard Law, PLLC & Yvonne M. Flaherty -- ymflaherty@locklaw.com -- Lockridge Grindal Nauen PLLP. Mentor Worldwide LLC, Defendant, represented by Dustin Bradley Rawlin, I -- dustin.rawlin@tuckerellis.com -- Tucker Ellis LLP, pro hac vice, Jan R. McLean Bernier , Nilan Johnson Lewis PA, John Q. Lewis -- john.lewis@tuckerellis.com -- Tucker Ellis LLP, pro hac vice & Tracy J. Van Steenburgh , Nilan Johnson Lewis PA. MERCANTILE ADJUSTMENT: Faces Goodman Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Mercantile Adjustment Bureau, LLC. The case is captioned as Mindy Goodman on behalf of herself and all other similarly situated consumers, the Plaintiff, v. Mercantile Adjustment Bureau, LLC, the Defendant, Case No. 1:18-cv-04488 (E.D.N.Y., Aug. 8, 2018). Mercantile Adjustment provides collection and accounts receivable management services to lenders and debt purchasers.[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 MERCEDES-BENZ USA: Faces Dumond Suit over Defective Sunroofs ------------------------------------------------------------ LEIKA DUMOND, individually and on behalf of all others similarly situated, Plaintiff vs. MERCEDES-BENZ USA, LLC, and DAIMLER AG, Defendants, Case No. 2:18-cv-12017 (D.N.J., July 24, 2018) is an action against the Defendants for their failure to design and manufacture panoramic sunroofs that meet the new engineering challenges, in that the sunroofs are unable to withstand foreseeable stresses of ordinary use, which ultimately leads to a catastrophic failure usually described as an explosion of the sunroof in both moving and stationary environments. The Plaintiff alleges that had the Defendants disclosed the panoramic sunroof defect at the point of sale, the Plaintiff would not have purchased the 2014 Mercedez-Benz CLA-250 with panoramic sunfroof or she would have paid substantially less. In addition, she would not have suffered the economic damages she sustained. Mercedes-Benz USA, LLC is engaged in the marketing and distribution of Mercedes-Benz, smart, and Sprinter vehicles in the United States. Mercedes-Benz USA, LLC was formerly known as Mercedes-Benz of North America, Inc. The company was founded in 1965 and is headquartered in Montvale, New Jersey with an additional office in Long Beach, California. Mercedes-Benz USA, LLC operates as a subsidiary of Daimler AG. [BN] The Plaintiff is represented by: Mitchell M. Breit, Esq. Paul J. Hanly, Jr., Esq. SIMMONS HANLY CONROY LLC 112 Madison Avenue New York, NY 10016-7416 Telephone: (212) 784-6400 Facsimile: (212) 213-5949 E-mail: mbreit@simmonsfirm.com phanly@simmonsfirm.com - and - Gregory F. Coleman, Esq. Mark E. Silvey, Esq. Adam A. Edwards,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 MIDWEST SUPPLY: Smith Seeks Certification of Collective Action -------------------------------------------------------------- In the lawsuit styled WANDA SMITH, on behalf of herself and all other persons similarly situated, known and unknown, the Plaintiff, v. MIDWEST SUPPLY & MAINTENANCE COMPANY, a Michigan for-profit corporation, and CHARLOTTE CALLAGHAM, a natural person, the Defendant, Case No. 2:18-cv-12483-SFC-RSW (E.D. Mich.), the Plaintiff asks the Court for an order: 1. conditionally certifying a collective action for unpaid wages under section 216(b) of the FLSA; 2. issuing Plaintiff Smith's proposed order; 3. approving proposed court-supervised notice to the putative class members; 4. appointing The Law Offices of Bryan Yaldou, PLLC, as class counsel; 5. requiring Defendants to identify potential opt-in plaintiffs by promptly providing Plaintiff Smith with an updated computer-readable spreadsheet containing contac information for all potential opt-in plaintiffs within 10 days; 6. approving an opt-in period of 60 days; 7. allowing Plaintiff Smith to send notice to similarly situated individuals via e-mail in addition to regular mail; and 8. requiring the proposed notice to be posted in Defendants' workplaces (away from view of customers but in a common place for its employees to view). Attorneys for Plaintiff: Bryan Yaldou, Esq. Omar Badr, Esq. THE LAW OFFICES OF BRYAN YALDOU, PLLC 23000 Telegraph, Suite 5 Brownstown, MI 48134 Telephone: (734) 692 9200 Facsimile: (734) 692 9201 E-mail: bryan@yaldoulaw.com MOVIEPASS: Users Threaten Class Action After Series of Problems --------------------------------------------------------------- Sarah Berger, writing for CNBC, reports that the talk of Twitter on July 31, of course, was the potential collapse of the cult-favorite subscription service MoviePass. After experiencing multiple outages, reportedly due to the company burning through all its cash and being unable to pay for tickets, MoviePass announced on July 31 a new pricing model. Within the next 30 days, it will be increasing its standard monthly rate of $9.95 per month to $14.95 per month. The company also said that some movies will have limited availability during their first two weeks. While the company has long been plagued by criticism that its prices were too low to be sustainable and that its customer service is nearly non-existent, in recent days, the future of the company seems particularly questionable. So over the past 24 hours, frustrated MoviePass users have taken to Twitter to comment on the company's roller-coaster ride of pricing changes and outage issues; even billionaire Elon Musk weighed in. Others, not so much; MoviePass has also made some people angry. Meanwhile, some users have already begun eyeing different options for subscription-like movie services, and others have threatened a class-action lawsuit. [GN] NEVCO CONTRACTING: Underpays Construction Laborers, Contreras Says ------------------------------------------------------------------ YONI BEQUER CONTRERAS, individually and on behalf of all others similarly situated, Plaintiff v. NEVCO CONTRACTING, INC., Defendant, Case No. 7:18-cv-06686 (S.D.N.Y., July 25, 2018) seeks to recover unpaid wages, overtime compensation, liquidated damages and attorney's fees. The Plaintiff Contreras was employed by the Defendant as a construction laborer from June 2009 to July 2, 2018. Nevco Contracting, Inc. is a New York corporation located in Mount Vernon, New York. The Company is engaged in building construction and renovation business. [BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: 718-740-1000 Facsimile: 718-355-9668 E-mail: abdul@abdulhassan.com NEW JERSEY: Court Dismisses Federal Claims in IDEA Suit ------------------------------------------------------- The United States District Court for the District of New Jersey granted in part and denied in part Defendant's Motion to Dismiss the case captioned ASAH; SPECTRUM360, VERONA; SPECTRUM360, LIVINGSTON; MICHELE HOMA; HOLLYDELL SCHOOL, HURFFVILLE; and MAUREEN GROSSI, Plaintiffs, v. NEW JERSEY DEPARTMENT OF EDUCATION; KIMBERLY HARRINGTON; KEVIN DEHMER; and ELISE SADLER-WILLIAMS, Defendants, Civil Action No. 16-3935 (FLW) (DEA)(D.N.J.). Presently before the Court is the Defendants' Motion to Dismiss Plaintiffs' Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Plaintiffs bring this case against the Defendants asserting various state and federal constitutional claims challenging the Department's regulations governing tuition reimbursement for approved private schools for students with disabilities. Under the Individuals with Disabilities Education Act (IDEA), each state that receives federal education funding must ensure that disabled children receive a free appropriate public education' (FAPE). The IDEA protects the rights of disabled children by mandating that public educational institutions identify and effectively educate those children, or pay for their education elsewhere if they require specialized services that the public institution cannot provide. Plaintiffs' Claims According to the Amended Complaint, prior to June 2015, the Department had a decades-long practice of permitting (Approved Private School for Students with Disabilities (APSSDs) to obtain full reimbursement for related-services provided to students with disabilities, provided that the related-services were administered in fulfillment of students' IEPs and were provided by qualified employees or approved agencies. The Plaintiffs allege that the Department also permitted sending districts to send their own staff to assist APSSDs in providing related services to students with disabilities, without charge to these APSSDs. The Plaintiffs further allege that APSSDs, such as Spectrum360 and HollyDELL, relied on the Department's practice of permitting full reimbursement in annually acquiring related services at an amount sufficient to fulfill the requirements of students' IEPs. The Defendants argue that the Amended Complaint should be dismissed for three reasons. First, the Defendants maintain that the Plaintiffs' state and federal constitutional claims are barred under the Eleventh Amendment doctrine of sovereign immunity, and that no exceptions to immunity exist. Second, the Defendants contend that the Plaintiffs' challenges to the Department's July 2017 Regulations are not justiciable, because the Plaintiffs have failed to sufficiently allege the existence of an actual and imminent threat of future harm, as required under the doctrines of standing and ripeness. Third, the Defendants argue that even if this Court has subject matter jurisdiction, the Plaintiffs' claims fail on the merits. Eleventh Amendment Sovereign Immunity The Eleventh Amendment to the United States Constitution provides that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. Here, in arguing that the Department must be dismissed on sovereign immunity grounds, the Defendants note that the Court already found that the Department was entitled to sovereign immunity in its June 30, 2017 Opinion. Indeed, in its prior decision, the Court rejected the Plaintiffs' argument that the exception to sovereign immunity set forth in Ex parte Young, 209 U.S. 123 (1908) applied to the Department, and thus, found that the Department was entitled to sovereign immunity. And, in response to the instant Motion, the Plaintiffs fail to present any new arguments as to why the Department is not entitled to sovereign immunity. Accordingly, Court's finding that the Department is entitled to sovereign immunity stands, and thus, the Plaintiffs' federal claims are dismissed as to the Department. The Defendants raise two sovereign immunity arguments with respect to the State Officials. First, the Defendants argue that under Ex parte Young and its progeny, the Plaintiffs' request in Count Three, the Plaintiffs' substantive due process claim, seeking an Order granting APSSD related-service providers compensation for any sums to which they were previously entitled must be dismissed, because it is akin to a request for retroactive monetary damages. Second, the Defendants contend that each of the Plaintiffs' federal claims should be dismissed, because ex parte Young only provides an exception to sovereign immunity for claims seeking injunctive relief to remedy a continuing violation of federal law, and the Plaintiffs have failed to allege any facts showing that there is indeed an ongoing violation of federal law. With respect to the Defendants' first argument, the Court agrees that the Plaintiffs' request in Count Three -- seeking an Order granting APSSD related-service providers compensation for any sums to which they were previously entitled must be dismissed, because such an award would more closely approximate an award of retroactive monetary damages than prospective injunctive relief. Accordingly, that request is stricken from Count Three as barred under the doctrine of sovereign immunity. Nonetheless, the Court finds that the State Officials are not entitled to immunity with respect to the remainder of the Plaintiffs' federal claims. Specifically, contrary to the Defendants' assertion, the Plaintiffs do allege that Department's enforcement of its APSSD tuition reimbursement regulations amounts to a violation of federal law, and thus, that the Defendants should be enjoined from continued enforcement of the same. For the purposes of the Ex parte Young exception, the Plaintiffs need not establish that the Defendants' conduct is, in fact, unconstitutional. Accordingly, the Court proceeds to the Defendants' other arguments for dismissing the Plaintiffs' federal claims. Justiciability of Plaintiffs' Challenges to the Department's July 2017 Regulations In arguing that the Plaintiffs have failed to present a justiciable controversy with respect to the July 2017 Regulations, the Defendants contend that the Amended Complaint fails to address the added flexibility provided under those regulations. Specifically, the Defendants note that, although the amended regulations set the maximum salary rate for each position in reference to the 2016-2017 school year, they provide exceptions for the Relevant Positions at issue in this case. In that regard, the Defendants submit that, beginning July 1, 2017, the regulations provide that: (i) maximum published salaries for the Relevant Positions shall increase annually by the CPI from the 2016-17 published salary, the published maximum allowable salaries list containing the total maximum hourly rate for the Relevant Positions will include an allowance of 35 percent more than the maximum allowable salary rate calculated and published pursuant to N.J.A.C. Section 6A:23A-18.3(o)(1)(i) for those positions, that APSSDs may contract with approved clinics or agencies for contracted services above the maximum allowable published rates detailed in N.J.A.C. Section 6A:23A-18.3(o)(1)(i), so long as the APSSD complies with certain requirements. APSSDs can request that the Commissioner of Education approve a salary higher than the maximum allowable salary for "no more than two APSSD employees in any fiscal year in which the APSSD demonstrates, to the Commissioner's or his or her designee's satisfaction, the maximum allowable salary is inadequate and would cause a hardship to the Defendants argue that the Amended Complaint is devoid of any allegations explaining how these regulations will negatively impact the Plaintiffs, and thus, that the Plaintiffs' alleged injury is conjectural. Despite the lack of specific allegations concerning the impact of the flexibility provisions cited by the Defendants, the Plaintiffs have sufficiently alleged a real and immediate injury with respect to the July 2017 Regulations that they will suffer real costs as a condition of compliance with a regulation that they urge is unconstitutional. As the Third Circuit has observed, sufficient injury exists to confer standing where 'the regulation is directed at [the plaintiffs] in particular; it requires them to make significant changes in their everyday business practices; and if they fail to observe the rule they are quite clearly exposed to the imposition of strong sanctions. In Free Speech, 825 F.3d at 166, the plaintiffs, a collection of individuals, entities, and interest groups engaged in the production of sexually explicit images, challenged the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in various statutes and their accompanying regulations. The government argued that the plaintiffs lacked standing to pursue injunctive relief, and that the plaintiffs' claims were not ripe, because they have not demonstrated sufficient threat of injury and their claims of future harm are not redressable through injunctive relief given that no inspection program has been in place since 2008. The Court finds that the Plaintiffs have sufficiently alleged an immediate threat of future harm, such that the Plaintiffs' constitutional claims are justiciable. Plaintiffs' Federal Claims The Plaintiffs assert federal claims for: (1) violation of the Equal Protection Clause; (2) violation of the Due Process Clause; and (3) Violation of the Contracts Clause. The Court will examine each of these claims, in turn. Equal Protection Claim In Count One of the Amended Complaint, the Plaintiffs allege that the Department's regulations governing APSSD reimbursement tuition, including the disallowance of related service provider salaries that exceed the regulatory maximum, amount to discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The Plaintiffs allege that the Department's regulations discriminate against APSSDs, because they prohibit APSSDs from procuring related services for students with disabilities at the same cost as public entities. Here, the parties dispute the standard of review that governs the Plaintiffs' Equal Protection Claim. In that regard, the Defendants contend that rational basis review applies, because the Plaintiffs are not members of a suspect class and the regulations do not implicate a fundamental right. Conversely, the Plaintiffs argue that the Department's regulations both target a suspect class and burden a fundamental right. In that regard, the Plaintiffs contend that the Department's regulations impose salary limitations on APSSDs and their related service providers, without imposing similar limitations on public schools and their related service providers. Additionally, the Plaintiffs argue that students with disabilities are a suspect class and, due to their association with private school students with disabilities, APSSDs and APSSD related-service providers are also members of a protected class and entitled to equal protection. Finally, Plaintiffs maintain that the Department's regulations limit the ability of students with disabilities to receive the educational services mandated by their IEPs, and thus, that these regulations threaten the fundamental right to education. Plaintiffs' arguments in support of applying a strict scrutiny standard of review are without merit. At the outset, APSSDs and their related service providers are not suspect classes for the purposes of the Equal Protection Clause, because these groups are not discrete and insular minorities that have been subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. Due Process Claims In Counts Two and Three of the Amended Complaint, Plaintiffs assert claims under the Due Process Clause of the Fourteenth Amendment. Procedural Due Process In Count Two of the Amended Complaint, Plaintiffs assert a claim for violation of procedural due process. Specifically, Plaintiffs allege that the Department deprived Plaintiffs of their liberty when it reversed its position regarding its enforcement of maximum salaries for related-service providers and its requirement that related-service be provided directly by APSSDs, without affording Plaintiffs notice or an opportunity to be heard. To state a claim for violation of procedural due process, Plaintiffs must allege that: (1) they were deprived of an individual interest encompassed by the Fourteenth Amendment's protection of life, liberty, or property; and (2) that the procedures available did not provide due process of the law. Here, even accepting as true Plaintiffs' allegation that, prior to the Department's June Memorandum, the Department reimbursed APSSDs for the costs of providing all related services, the Court cannot find that Plaintiffs have a legitimate entitlement to the unregulated receipt of public funds covering the costs of any and all related services. Significantly, Plaintiffs have failed to identify any statutory or constitutional provision guaranteeing APSSDs a specific level of funding as compensation for providing related services to students with disabilities. Rather, the Plaintiff-APSSDs' entitlement to tuition reimbursement funds stems from the Tuition Contract, which requires APSSDs to comply with all requirements promulgated by the Department and states that tuition charges as well as the payment of the same shall be made in accordance with the applicable New Jersey Statutes and the rules and regulations of the State Board of Education. In turn, New Jersey confers upon the Commissioner of Education and the State Board of Education the authority to prescribe rules governing the calculation of APSSD tuition. Under this regulatory scheme, the Court cannot find that Plaintiffs had a legitimate entitlement to an unfettered amount of tuition reimbursement funds. To the contrary, Plaintiffs were on notice that their receipt of tuition reimbursement funds was conditioned on compliance with the Department's regulations. Accordingly, because Plaintiffs did not have a legitimate claim to unencumbered tuition reimbursement, or to particular regulations being in place, they have not sufficiently alleged a deprivation of a property right protected by procedural due process. Substantive Due Process In Count Three of the Amended Complaint, Plaintiffs assert a substantive due process claim, alleging that the state deprived Spectrum360, HollyDELL, Ms. Grossi, and Ms. Homa of economic liberty via unlawful contract and compensation limitations. Moreover, even if Plaintiffs' substantive due process claim could be construed as a challenge to a non-legislative act, Plaintiffs' claim still fails, because Plaintiffs have not sufficiently alleged that the Department's regulations deprived them of a fundamental right that is protected by substantive due process. To reiterate, Plaintiffs allege that the Department deprived them of their fundamental interests in contracting, working and earning a living, and maintaining specific private employment. While Plaintiffs are correct that the right to engage in any of the common occupations of life is a fundamental liberty protected under the Constitution. Here, Plaintiffs have not alleged that the Department's regulations deprived them of the opportunity to pursue a certain calling or occupation altogether, or even to work as a related service provider for an APSSD; rather, Plaintiffs merely contend that they are unable to obtain the salary that they desire. This is not the sort of fundamental employment interest protected under the Constitution. Accordingly, because Plaintiffs have failed to allege the deprivation of an interest protected under the Constitution, Plaintiffs' substantive due process claim must be dismissed. Accordingly, the Defendants' Motion to Dismiss Counts One, Two, Three, and Five of the Amended Complaint, insofar as Plaintiffs assert federal claims, is granted. The Court declines to exercise supplemental jurisdiction over the Plaintiffs' remaining state law claims, and thus, Defendants' Motion is denied without prejudice as to the remainder of the Amended Complaint. A full-text copy of the District Court's July 26, 2018 Opinion is available at https://tinyurl.com/y7lq3vjw from Leagle.com. ASAH, THE CHILDREN'S INSTITUTE, VERONA, THE CHILDREN'S INSTITUTE, LIVINGSTON, MICHELE HOMA, HOLLYDELL SCHOOL, HURFFVILLE, MAUREEN GROSSI, B.R., on behalf of M.R., S.D., on behalf of W.D. & SPECTRUM 360, LIVINGSTON, Plaintiffs, represented by VITO A. GAGLIARDI, Jr. -- vagagliardi@pbnlaw.com -- PORZIO, BROMBERG & NEWMAN, PC. NEW JERSEY DEPARTMENT OF EDUCATION, KIMBERLY HARRINGTON, Commissioner of Education, KEVIN DEHMER & ELISE SADLER-WILLIAMS, Defendants, represented by CAROLINE GENETT JONES , STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL. NEW YORK UNIVERSITY: Averts Workers' ERISA Class Action ------------------------------------------------------- Emily Brill, writing for Law360, reports that New York University defeated an Employee Retirement Income Security Act class action on July 31 when a federal judge rejected workers' claims that the school's two employee retirement plans were mismanaged to the tune of $358 million in losses. A class of current and former New York University workers didn't prove the university's retirement committee acted imprudently when monitoring investments, a federal judge said on July 31. The case is styled Sacerdote et al v. New York University, Case No. 1:16-cv-06284 (S.D.N.Y.). The case is assigned to Judge Katherine B. Forrest. The case was filed August 9, 2016. [GN] NEW YORK: Homeowners to File Suit Over Build It Back Program ------------------------------------------------------------ Amanda Farinacci, writing for NY1, reports that on a warm summer evening, a group of Gerritsen Beach homeowners sit around a dining room table, trading war stories about the city's storm recovery program, Build It Back. "They put two doorknobs on the door, two doorknobs, because they made a mistake. They bought the wrong door," said Laura McCann, a participant in the Build it Back program. Each of these six homeowners elevated their homes through Build It Back in the hopes of protecting them from the threat of future floodwaters. They've all moved back home, and they all continue to experience dangerous issues they say the program isn't adequately addressing. Work at Maria Gonzalez's home was finished last summer. But just days after she got her keys, she says that when she moved her entertainment into her living room, "there was a big loud thud, and it felt like the house was falling." It's the same story at James Relay's home. "I didn't think the house would cave in, but I just knew that it was going to get worse and worse and worse," he said. "They had to, they literally had to do 70 percent of my house, the support underneath, over again." Build It Back told Natalie Caruso she could move back home on December 11. A week later, she was forced to move out again because the house was starting to sink. Engineers blamed a supporting beam that was never installed for the problem. Contractors came back to fix the issue in January, but the house is still crooked. According to a city estimate, Build It Back has spent at least $838,000 on repairs to her house, a number that doesn't include the January work or work the Carusos are still fighting to have done. "My house is uneven here, my house is crooked there," she said. "All my doors upstairs do not work. You have to lift them because the whole house is tilting." Nearly six years after Sandy, their list of issues is so extensive, and so similar, that this group of homeowners are banding together to file a class action suit against Build It Back. They charge that the program left them with unsafe conditions and shoddy work, and they want to know how their homes passed inspections. The group is hoping their suit will force the city to a forensic accounting of every home in the Build It Back program, and they're seeking financial damages for what they call their pain and suffering. "We can't all be wrong," Ms. Gonzalez said. The group is inviting other Build It Back participants to join in their suit. Because it has yet to be filed, the city Law Department could not offer any comment. [GN] NEW ZEALAND: Ex-Bella Vista Residents Sue Tauranga City Council --------------------------------------------------------------- RNZ reports that all former residents of the botched Bella Vista housing development in Tauranga will join a class action against the Tauranga City Council. The council has offered to buy back the unlivable properties at the price buyers paid for them up to three years ago. But residents said this will lock them out of the current housing market. The former residents were evacuated from their newly built homes in March after they were deemed unsafe to live in. Two households are already pursuing legal action against the council, which signed off on shoddy construction work. The remaining 19 families will now join them. The residents said the council's offer to buy back the properties at the price paid would leave them broke and force them out of town. Lee Konowe said there is no reason the council cannot front up with more money, when most of it will be coming from insurers. [GN] NFL: Concussion Lawsuit Looms in Australia ------------------------------------------ Cam Reddin, writing for Macquarie Sports Radio, reports that Former American football player Colin Scotts warns failure to protect against concussions will "kill" Australian sport. In a week where estimated costs of the NFL's compensation payout following a class action from 5,000 former players have blown out to nearly double the original sum, there are now concerns a similar lawsuit could be on its way to Australia. Scotts says Australian sports administrations are exposing themselves to legal action from players if they don't act quickly to protect current and future players from debilitating brain injuries. "You would not believe how many teammates I have that are either dead or running around with major mental illness," Scotts told Macquarie Sports Radio's Cam Reddin. Almost every weekend, Scotts receives messages from worried parents in a panic because their child has taken a blow to the head while playing junior sport. Meanwhile, some of his closest football friends have fallen ill and passed away from concussion-related illnesses like Chronic Traumatic Encephalopathy (CTE). "[Heads of sport] are not sitting here like me getting all these phone calls from America saying all my mates are dying and going insane. It's not going away, it's getting worse," Scotts said. "You can chop my legs off, I can still smile and have a beer. But losing your mind is frightening. Life is already short as it is," he said. In a warning to the major Australian football codes, Scotts says it may take a lawsuit the scale of what we have seen in the NFL to make concussion treatment and prevention a priority. "Someone has to stand up. What do we need, some massive lawsuit like the NFL before we wake up? Well, that's what's coming," Scotts said. "We're going to look back in 20 years and say it was absolute abuse. The brain was not designed to rattle. There's no shock absorbers, there's no airbags. It's the most important organ in the human body and it was not designed to be hit," he said. An NFL-style legal case may not be far away. Already, more than 70 former AFL players are undergoing testing, while they consider a class action of their own. "It's terrifying. We need to wake up and do something about it, because it will kill sport. The lawsuits, the data's there now. There are no excuses," Scotts said. Under the terms of settlement reached in 2015, the NFL was ordered to pay out compensation to help manage claims by those who were affected by concussion-related illnesses long into the future. The estimated total payout figure over 20 years was around $1 billion. But on latest count, not even three years after the settlement, already more than $500 million has been paid out. More than a decade ahead of time, the pool of money set aside for compensation is already half up. "Somebody needs to stand up and get on the front foot because a tidal wave is coming," Scotts said.[GN] NY HEALTH DEPARTMENT: Court Narrows Claims in Samele et al. Case ----------------------------------------------------------------- In the lawsuit styled GEMMA SAMELE, SELMA ROHER by her next friend MELANIE ROHER, and SALVATORE GUADAGNA, individually and on behalf of all persons similarly situated, the Plaintiff(s), v. HOWARD ZUCKER, as Commissioner of the New York State Department of Health, the Defendant, Case No. 2:17-cv-03397 (E.D.N.Y.), the Hon. Judge Arthur D. Spatt entered an order: 1. denying without prejudice, with leave to renew, Plaintiffs' motion for class certification pursuant to Fed.R.Civ.P. Rule 23; and 2. granting in part, and denying in part Defendant's motion to dismiss pursuant to Fed.R.Civ.P. Rules 12(b)(1) and 12(b)(6). It is granted to the extent that Samele and Roher's claims are dismissed because they do not have standing. It is denied to the extent that the inherently transitory exception applies to claims such as Guadagna's, and his claims are preserved for the purposes of the putative class action." The Court said, "In light of the Court's decision, the Plaintiffs should address the size of any class encompassing persons who switched from GuildNet to a new MLTCP, and received less care without notice of a right to fair hearing with aid continuing. While the Plaintiffs need not provide an exact number of individuals to meet the numerosity requirement, they must at least present some evidence of, or reasonably estimate, the number of class members. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). As their motion dealt solely with a class of individuals who had been previously been served by GuildNet, they did not provide any evidence as to the number of individuals who received less care upon switching to a new MLTCP. Although the Second Circuit has held that a prospective class of forty or more raises the presumption of numerosity, Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995), the Plaintiffs have not submitted any evidence or estimated that the prospective class exceeds forty individuals." Attorneys for Plaintiffs: Benjamin Wait Taylor, Esq. Elizabeth A. Jois, Esq. Julia Grossman Russell, Esq. Jane Greengold Stevens, Esq. NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square 18th floor New York, NY 10004 Attorneys for the Defendant: Dorothy O. Nese, Esq. OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL 200 Old Country Road Suite 460 Mineola, NY 11501 OHIO: Burger King Stunt Highlights "Pink Tax" Bill Issue -------------------------------------------------------- Danielle Serino, writing for WKYC, reports that a major fast food chain is coming out against the so called "Pink Tax." That's when retailers or companies charge women more for products or services that are basically the same as what a man would get. Now, the Pink Tax has been under attack for a while. Ohio legislators recently introduced a bill aimed at ending taxes on feminine hygiene products. A Class Action lawsuit was also filed against Ohio's Department of Taxation. But to highlight the disparity, Burger King pulled a stunt where unsuspecting females were told they had to pay $1.40 more than the men for the same serving of Chicken Fries. In the video, which the company posted on YouTube, one woman exclaimed "I'm not going to pay extra," when the cashier told her the price of her Chicken Fries. Another pointed out, "I ordered the same thing he did!" They had no idea about the stunt the company dubbed the Burger King Chick Tax. Where women who ordered the fries, were charged nearly 83% more than men. The Cashier explained to them, "They're extra just because it comes in a cute box with eyelashes and a bow." That's when one customer asked, "Would you pay extra for a pink box?" When the Cashier told her not to get so excited, she sarcastically answered, "Do I look excited?!" Women have been unexcited for a long time over this kind of price disparity, which applies to dozens of products that are virtually the same as those for men. Things like razors, deodorants and shampoo. But as the Burger King spoof points out it's something women have accepted for a long time. One cashier asked a customer "When you go into the drugstore and you pay $2 dollars more for razor blades, do you say something then?" She admitted she didn't. But U.S. Congresswoman Jackie Speier of California is definitely speaking up. She recently introduced the Pink Tax Repeal Act to end gender-based discrimination for the prices of goods and services. The Act allows the FTC to enforce violations and gives State Attorneys General the authority to take civil action. "I think it's great to see. And great to bring the issue to the forefront. Women deal with this every day, and to shine a light on this is important, said Ohio State Representative Brigid Kelly. She recently introduced her own bill which would ban sales tax on all medically necessary feminine products, like Tampons. According to a 2014 annual report by Maria Shriver and co-sponsored by The Center for American Progress, eliminating that tax could save women up to $1,700 dollars a year. 'Women generally make less and are paying more for products, which doesn't make a lot of sense," said Representative Kelly. And Burger King seems to agree, asking people to support Congresswoman Speier's Pink Tax Repeal Act something at least women seem to back. The Federal Act still needs to be considered by the Commerce Committee. The Bill here in Ohio made it out of the Ways and Means Committee, and has the support of several of the Democratic Male Congressmen. Next stop is the House floor for a vote. [GN] PACIFIC ENERGY: Court Dismisses A. Nelson's FAC in EFTA Suit ------------------------------------------------------------ The United States District Court for the District of Arizona granted Defendant's Motion to Dismiss the First Amended Complaint in the case captioned Amanda Nelson, et al., Plaintiffs, v. Pacwest Energy LLC, Defendant, No. CV-17-03304-PHX-DJH (D. Ariz.). The Plaintiffs seek injunctive relief and actual and statutory damages resulting from Defendant Pacwest Energy, LLC, dba Jacksons Car Wash’s (Jacksons) violation of the Electronic Fund Transfer Act (EFTA). The Plaintiffs contend they were not provided a copy of their authorization as required by the statute. The EFTA allows for consumers to bring suit for money-damages when a violation of its provisions occur, and further authorizes consumers to obtain attorney's fees if they are successful. Jacksons argues that the Plaintiffs lack standing to bring a claim under the EFTA. Jacksons contends that the Plaintiffs did not suffer a concrete injury as a result of Jacksons' failure to provide the Plaintiffs a copy of their written authorization at the time Fisher purchased a monthly car wash plan. Jacksons further argues that any such injury in fact cannot be attributed to Jacksons. Jacksons argues that the Court lacks subject matter jurisdiction because the Plaintiffs have failed to establish they have standing to sue under the EFTA. Article III provides that federal courts may only exercise judicial power in the context of cases and controversies. To establish standing, a plaintiff seeking the jurisdiction of a federal court has the burden of clearly demonstrating that he has: (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Here, Jacksons argues that the Plaintiffs have failed to show that they have standing to sue under the EFTA because (1) Plaintiffs have not suffered any concrete injury; and (2) to the extent they have, any injury Plaintiffs have suffered cannot be attributed to Jacksons. Although Jacksons contends that the Plaintiffs' purported injury is not plausibly traceable to Jacksons, its primary challenge is to the existence of the Plaintiffs' injury in fact. An injury in fact is an invasion of a legally protected interest which is (a) concrete and particularized and (b) 'actual or imminent, not conjectural or hypothetical. In determining whether a violation of a statutory provision satisfies the injury-in-fact-concreteness requirement, the Ninth Circuit has instructed courts to assess: (1) whether the statutory provisions at issue were established to protect [plaintiffs'] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests. Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (Spokeo III). Whether the EFTA Procedural Requirements Were Established to Protect Consumers' Concrete Interests Given the stated purpose of the statute and the substance of the various procedural requirements identified therein, the Court finds that the statutory provisions of the EFTA were established to protect consumers from unauthorized transfers and transfers made in error. As such, the interests sought to be protected by these requirements are concrete and are not purely procedural rights" afforded to consumers engaging in electronic fund transfers. Whether Jacksons' Failure to Provide a Copy of the Signed, Written Authorization Actually Harmed Plaintiffs' Interests or Presented a Material Risk of Harm to Those Interests In their Amended Complaint, the Plaintiffs allege that they suffered actual harm when Jacksons failed to provide them with a copy of the written Authorization because they were (1) unaware that the Defendant would be taking money from their bank account on a monthly basis confused when they later found that the Defendant had taken money from their bank account had to incur the time, expense, and disutility associated with discovering why Defendant had done so and (4) forced to obtain counsel to investigate the matter further. The Court finds that the allegations related to the Plaintiffs' alleged actual harm in the FAC are insufficient to establish standing under the EFTA. The Plaintiffs do not allege that Fisher misunderstood the terms of the Authorization or that Jacksons exceeded those terms in any way. Moreover, the plain language of the signed Authorization contradicts the Plaintiffs' allegation that they were unaware Jacksons would be taking money from their bank account on a monthly basis. As Jacksons notes in its reply brief, Fisher was provided with and executed the Automatic Recharge Authorization ticket prior to purchasing the carwash plan. Thus, the Court finds that any allegations that the Plaintiffs were unaware or confused by the monthly charges are contradicted by the terms of the written Authorization signed by Fisher. Moreover, any injury the Plaintiffs suffered as a result of having to investigate the charges to their account, including obtaining counsel to investigate, does not amount to the harm Congress intended to protect against when it mandated the receipt requirement in the EFTA. Indeed, Congress addressed the risk of confusion in the EFTA's error resolution provision, which outlines how consumer can investigate erroneous transfers. The Plaintiffs' FAC also alleges that Jacksons' failure to provide them with a written copy of the Authorization at the time of the transaction exposed them to an increased risk of fraud. Beyond this conclusory statement, Plaintiffs do not explain in their FAC how this particular failure exposed them to an increased risk of fraud. Citing recent district and subsequent appellate court decisions out of the Second Circuit, Jacksons argue that none of the allegations in the FAC establish that Plaintiffs suffered concrete injury to interests sought to be protected under the EFTA. The issue of whether a plaintiff had alleged concrete injury for purposes of standing under the EFTA where a defendant had failed to obtain or provide the plaintiff a copy of her written authorization was squarely addressed by the New York district court in Aikens. Aikens v. Portfolio Recovery Ass. LLC, 716 Fed. Appx. 37 (2d Cir. 2017), aff'ming Aikens v. Portfolio Recovery Ass. LLC, 2017 WL 1091591 (E.D.N.Y Mar. 22, 2017). There, the plaintiff and a debt collector entered into an oral agreement over the telephone, whereby the plaintiff authorized the debt collector to automatically debit her checking account each month until her debt was satisfied. After debiting her account for nearly a year, plaintiff brought suit under the EFTA, seeking statutory damages for the debt collector's failure to obtain her written consent for the monthly automated debits as well as its failure to provide her with a copy of that consent at the time of the transaction. The district court found the plaintiff lacked standing and dismissed the action with prejudice. The court specifically found that the plaintiff had failed to allege any concrete injury and had only alleged a bare procedural violation, insufficient for standing purposes under Spokeo II. The Plaintiffs have thus failed to allege any plausible concrete injury suffered as a result of Jacksons' failure to provide Fisher a copy of his Authorization. The Traceability Requirement Even if the Court were to find that the Plaintiffs had sufficiently alleged a risk of fraud here, the Plaintiffs cannot and have not alleged that such injury is fairly traceable to Jacksons. Although the Plaintiffs do not have to prove that Jacksons proximately caused injuries at this phase of the case, they do have the burden of demonstrating that their injury-in-fact is fairly traceable to the challenged action. Here, the Plaintiffs' threadbare allegations fall short of demonstrating that link. The Plaintiffs' FAC conclusively states that because the Plaintiffs were not provided a copy of their signed, written authorization at the time it was made, they were unaware that the Defendant would be taking money from their bank account on a monthly basis were confused when they later found that the Defendant had taken money and had to incur the time, expense, and disutility associated with discovering why the Defendant had done so. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/yb78j6ck from Leagle.com. Amanda Nelson, on behalf of themselves and all others similarly situated & Louis Fisher, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jose F. Gill , Thompson Consumer Law Group PLLC, Joseph Michael Panvini , Thompson Consumer Law Group PLLC & Russell Snow Thompson, IV , Thompson Consumer Law Group PLLC. Pacwest Energy LLC, doing business as Jacksons Car Wash, Defendant, represented by Andrew Carl Stanley -- astanley@srclaw.com -- Sacks Ricketts & Case LLP, Cynthia Ann Ricketts -- cricketts@srclaw.com -- Sacks Ricketts & Case LLP & Luanne Sacks -- lsacks@srclaw.com -- DLA Piper LLP US. PICK-A-PART AUTO: Court Approves $195K Class Settlement ------------------------------------------------------- The United States District Court for the Eastern District of California granted Plaintiffs' Motion for Final Approval of a Class Action Settlement in the case captioned CIRENA TORRES, on behalf of herself and all others similarly situated, Plaintiff, v. PICK-A-PART AUTO WRECKING (d/b/a Pick-A-Part); and DOES 1 through 10, inclusive, Defendants, No. 1:16-cv-01915-DAD-BAM (E.D. Cal.). The Plaintiff filed a class action complaint alleging defendant violated the Fair and Accurate Credit Transactions Act (FACTA). The Defendant operated a motor vehicle wrecking and recycling facility, whose business included maintaining an inventory of used vehicles, from which retail customers could dismantle parts to purchase. The Plaintiff alleges that the defendant willfully violated FACTA by printing the expiration date on receipts provided to credit card and debit card cardholders transacting business with defendant. Notice Adequate notice is critical to court approval of a class settlement under Rule 23(e). At the final fairness hearing, class counsel represented to the court that despite the high number of claims submitted, class counsel and the settlement administrator had conclusively determined that many claims were invalid as apparent duplicates, and further, that at least some of the valid claims accounted for multiple transactions out of the 4,422 transactions during the class period. Given this, the court concludes adequate notice was provided to the class here. Final Fairness Hearing In assessing the fairness of a class action settlement, courts balance the following factors: (1) the strength of the plaintiffs' case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. Strength of Plaintiff's Case Class counsel thus represents that further litigation would likely have caused delay, and posed substantial risk to the plaintiff class if the case were to be later dismissed outright without any recovery. In addition, class counsel recognizes the difficulty in demonstrating that defendant's conduct was willful, as is required to recover statutory damages under 15 U.S.C. Therefore, while the plaintiff potentially had meritorious claims, it is far from certain that she would have prevailed on those claims, given recent unfavorable case law and the difficulty in proving the defendant's willful conduct. Risk, Expense, Complexity, and Likely Duration of Further Litigation, and Risk of Maintaining Class Action Status Through Trial Here, the plaintiff contends that absent a settlement, the issues of standing and willfulness would have resulted in prolonged litigation that had the likely potential to take years and be costly. Moreover, class certification remains highly contested between the parties, and absent a settlement, would likely result in continued litigation, delays, and potential appeals. By contrast, the proposed settlement in this action provides compensation that is available now, without the additional time and risk of a decision that would likely be subject to a lengthy appeal process. The Amount Offered in Settlement Here, the proposed settlement is for $195,000. The Plaintiff notes that the settlement's maximum award of $250 per class member amounts to 250 percent of the minimum statutory damages ($100), and 25 percent of the maximum statutory damages ($1000). If each of the 4,422 credit card and debit card transactions represents unique individuals, which to the court appears to be highly unlikely, the plaintiff and the class would be entitled to minimum statutory damages of $100 per class member, or $442,200 total. If each individual received the maximum statutory damages amount of $1000, defendant's maximum liability would be $4,422,000. The proposed settlement of $195,000 thus represents approximately 44 percent of the plaintiff's minimum possible recovery, and 4.4 percent of the plaintiff's maximum possible recovery. Because of the concrete risks attendant with litigation, and the limited recovery available given that the defendant ceased all operations in January 2016, the court finds that the amount offered in settlement weighs in favor of final approval of the settlement. Extent of Discovery Completed In this case, only informal, rather than formal, discovery was exchanged between the parties. The Plaintiff asserts that, nonetheless, a substantial amount of information was obtained and exchanged, including specific figures concerning transactions during the Settlement Class Period. Class counsel represents that this information took time and effort to obtain and was critical to informing the settlement discussions. Based on these representations by counsel, the court is satisfied that the parties' negotiation constituted genuine, informed, arm's length bargaining. Experience and Views of Counsel Attorney Yedalian declares that aside from litigation, he also advocates for consumer protection through legislative and grassroots advocacy. Based on his experience and qualifications, investigation of the disputed factual and legal issues involved in this case, and evaluation of the risks of continued litigation, attorney Yedalian concludes that the settlement is fair and reasonable. Class counsel's experience and opinions weigh in favor of final approval of the settlement. Presence of a Governmental Participant More than 90 days have elapsed since notice was given, and this court has received no objections to this settlement from state or federal officials, nor have any governmental entities sought to intervene as demonstrated by the court's docket in this case. Because there are no separate governmental participants involved in the action, consideration of this factor is neutral in the court's evaluation of the settlement. Reaction of the Class to Proposed Settlement According to the declaration of Christopher Q. Longley on behalf of Atticus Administration, LLC, no member of the class has filed an objection to the settlement before the court. Similarly, no class members appeared at the final fairness hearing to raise any objections to the settlement. Accordingly, consideration of this factor weighs significantly in favor of granting final approval. Although the very existence of a clear sailing provision increases the likelihood that class counsel will have bargained away something of value to the class, the existence of a clear sailing provision is not necessarily fatal to final approval. Rather, when confronted with a clear sailing provision, the district court has a heightened duty to peer into the provision and scrutinize closely the relationship between attorneys' fees and benefit to the class. In the analysis of attorneys' fees below, the court finds that the requested fees are justified and do not betray the class's interests. On balance, the court is satisfied that the settlement is not the product of collusion, and therefore concludes that the settlement is fair, reasonable, and adequate. Accordingly, the Plaintiff's motion for final approval of the class action settlement is granted, the settlement class is certified, and the court approves the settlement as fair, reasonable, and adequate. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/yaay8xd9 from Leagle.com. Cirena Torres, on behalf of herself and all others similarly situated, Plaintiff, represented by Chant Yedalian -- chant@chant.mobi -- Chant & Company. Pick-A-Part Auto Wrecking, Doing business as, Defendant, represented by Ted A. Galfin -- tgalfin@galfinlaw.com -- Law Offices Of Ted A. Galfin. PROGRESSIVE SELECT: Lopez Suit Moved to Southern Dist. of Florida ----------------------------------------------------------------- The class action lawsuit titled Michael A. Lopez, on behalf of himself and all others similarly situated, the Plaintiff, v. Progressive Select Insurance Company, the Defendant, Case No. 0:18-cv-61844-WPD, was removed to the U.S. District Court for the Southern District of Florida (Ft Lauderdale) on Aug. 8, 2018. The case is assigned to the Hon. Judge William P. Dimitrouleas. Progressive Select operates as a subsidiary of Progressive Direct Holdings Inc.[BN] The Plaintiff is represented by: Edward Herbert Zebersky, Esq. Mark S. Fistos, Esq. ZEBERSKY PAYNE, LLP 110 S.E. 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 989 6333 Facsimile: (954) 989 7781 E-mail: ezebersky@zpllp.com mfistos@zpllp.com The Defendant is represented by: Bryan Thomas West, Esq. AKERMAN LLP Three Brickell City Centre 98 Southeast Seventh Street, Suite 1100 Miami, FL 33131 Telephone: (305) 982 5504 Facsimile: (305) 374 5095 E-mail: bryan.west@akerman.com PROVIDENCE HEALTH: Underpays Patient Sitter, Mamuyac Alleges ------------------------------------------------------------ RAMONA MAMUYAC, individually and on behalf of all others similarly situated, Plaintiff v. PROVIDENCE HEALTH & SERVICES; and DOES 1-20, inclusive, Defendants, Case No. BC714163 (Cal. Super., July 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Ms. Mamuyac was employed by the Defendants as patient sitter from April 6, 2015, to November 5, 2016. Providence Health & Services offers health care services throughout California, and headquartered in Renton, Washington. [BN] The Plaintiff is represented by: Vache A. Thomassian, Esq. Caspar Jivalagian, Esq. KJT LAW GROUP LLP 230 N. Maryland Ave., Suite 306 Glendale, CA 91206 Telephone: (818) 507-8525 E-mail: vache@kjtlawgroup.com caspar@kjtlawgroup.com - and – Christopher A. Adams, Esq. ADAMS EMPLOYMENT COUNSEL 4740 Calle Carga Camarillo, CA 93012 Telephone: (818) 425-1437 E-mail: ca@AdamsEmploymentCounsel.com PROVIDENT SAVINGS: Court OKs FLSA Portion of $1.7MM Settlement -------------------------------------------------------------- The United States District Court for the Eastern District of California granted Plaintiffs’ Motion for Settlement Approval in the case captioned GINA McKEEN-CHAPLIN, individually, on behalf of all others similarly situated, and on behalf of the general public, Plaintiffs, v. PROVIDENT SAVINGS BANK, FSB, Defendant, Case No. 2:12-cv-03035-MCE-AC (E.D. Cal.). Plaintiff Gina McKeen-Chaplin filed a putative class and collective action against Provident Savings Bank in this Court on December 17, 2012, asserting that Provident misclassified its mortgage underwriters as exempt from overtime and therefore failed to pay legally-required overtime pay. Here, the Court finds the settlement is a reasonable compromise of a bona fide dispute under the Fair Labor Standards Act (FLSA). Under the terms of the settlement, the Defendant agrees to pay a total of $1,775,000.00, independent of any duty to pay employer-side payroll taxes associated with the settlement payments, to settle what the Court agrees is a bona fide dispute. The Plaintiffs identify several unresolved issues in this litigation, including disputes as to the amount of overtime hours worked, whether damages should be calculated under the half-time method, whether any FLSA violations were willful, and whether the Plaintiffs would be eligible for liquidated damages. Indeed, this action has been through many years of litigation, including an appeal to the Ninth Circuit and subsequent appeal to the United States Supreme Court. The settlement allocates $612,000 to the FLSA claims. According to the Plaintiffs, that amount is 78% of their best day in court, and is greater than they would receive if they failed to prevail on even one of the disputed issues. This settlement amount is sufficient to warrant settlement approval. The Court also approves the Plaintiffs' Counsel's request for attorney's fees in the amount of $591,666.67, or one-third of the total settlement amount, subject to approval by the Superior Court in Neal. While this is an upward departure from this Court's benchmark of 25%, the Court finds it appropriate under the circumstances. The Court also approves the Plaintiffs' Counsel's request for reimbursement of litigation expenses of up to $56,000.00 from the settlement amount, subject again to approval by the Superior Court in Neal. To date, the Plaintiffs have incurred $54,000 in litigation costs, and counsel anticipates additional costs in the administration of the settlement. The Plaintiffs represent that they will submit a final costs request in conjunction with its fee petition and final approval in Neal, and are ordered to report regarding the same when they request dismissal of this action following final approval of Neal. No other costs are assessed against Defendant. A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/yc2276rr from Leagle.com. Gina McKeen-Chaplin, Plaintiff, represented by Matthew C. Helland -- helland@nka.com -- Nichols Kaster, LLP & Daniel Solomon Brome -- dbrome@nka.com -- Nichols Kaster, LLP. Provident Savings Bank, F.S.B., Defendant, represented by Howard M. Knee -- knee@blankrome.com -- Blank Rome LLP & Michael Lester Ludwig -- ludwig@blankrome.com -- Blank Rome LLP. QUALITY SYSTEMS: Nov. 19 Settlement Fairness Hearing Set -------------------------------------------------------- UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION In re QUALITY SYSTEMS, INC. SECURITIES LITIGATION No. 8:13-cv-01818-CJC-JPR This Document Relates To: ALL ACTIONS. SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR ATTORNEYS' FEES AND EXPENSES IF YOU PURCHASED OR ACQUIRED QUALITY SYSTEMS, INC. ("QSI") COMMON STOCK FROM MAY 26, 2011, THROUGH AND INCLUDING JULY 25, 2012, AND WERE DAMAGED THEREBY (THE "CLASS"), YOU COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT. CERTAIN PERSONS ARE EXCLUDED FROM THE DEFINITION OF THE CLASS AS SET FORTH IN THE STIPULATION OF SETTLEMENT. PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and Order of the United States District Court for the Central District of California, Southern Division, that the above-captioned litigation (the "Litigation") has been certified as a class action for the purposes of settlement only and that a Settlement has been proposed for $19,000,000 in cash. A hearing will be held on November 19, 2018, at 1:30 p.m., before the Honorable Cormac J. Carney at the Ronald Reagan Federal Building and U.S. Courthouse, 411 West Fourth Street, Courtroom 9B, Santa Ana, CA 92701, for the purpose of determining whether: (1) the proposed Settlement should be approved by the Court as fair, reasonable and adequate; (2) the proposed Plan of Allocation for distribution of the Settlement proceeds is fair, reasonable and adequate and therefore should be approved; and (3) the application of Lead Plaintiffs' counsel for the payment of attorneys' fees of no more than 25% of the Settlement Amount (up to $4,750,000) and payment of expenses of no more than $300,000 from the Settlement Fund, including interest earned thereon, should be approved. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THE LITIGATION, AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not received a detailed Notice of (I) Pendency of Class Action and Proposed Settlement; (Ii) Settlement Hearing; and (Iii) Motion for Attorneys' Fees and Expenses (the "Notice") and a copy of the Proof of Claim and Release, you may obtain a copy of these documents by contacting the Claims Administrator: QSI Securities Settlement, c/o A.B. Data, Ltd., P.O. Box 173037, Milwaukee, WI 53217, 1-866-963-9980. You may also obtain copies of the Stipulation of Settlement, Notice and Proof of Claim and Release at www.QSISecuritiesSettlement.com. If you are a Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release by mail postmarked no later than December 12, 2018, or submit it online by that date. If you are a Class Member and do not submit a valid Proof of Claim and Release, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will still be bound by any judgment entered by the Court in this Litigation (including the releases provided for therein). To exclude yourself from the Class, you must submit a written request for exclusion so that is received by October 29, 2018, in accordance with the instructions set forth in the Notice. If you are a Class Member and do not exclude yourself from the Class, you will be bound by any judgment entered by the Court in this Litigation (including the releases provided for therein) whether or not you submit a Proof of Claim and Release. If you submit a written request for exclusion, you will have no right to recover money pursuant to the Settlement. Any objection to the proposed Settlement, the Plan of Allocation of Settlement proceeds, or the fee and expenses application must be filed with the Court and delivered such that it is received by each of the following no later than October 29, 2018: CLERK OF THE COURT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Ronald Reagan Federal Building & U.S. Courthouse 411 West Fourth Street Santa Ana, CA 92701 Co-Lead Counsel: ROBBINS GELLER RUDMAN & DOWD LLP ROBERT R. HENSSLER JR. 655 West Broadway, Suite 1900 San Diego, CA 92101 Co-Lead Counsel: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP BENJAMIN GALDSTON 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Defense Counsel: LATHAM & WATKINS LLP PETER A. WALD 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. If you have any questions about the Settlement, or your eligibility to participate in the Settlement, you may contact Lead Counsel at the addresses listed above or by calling 1-800-449-4900 or 1-800-380-8496. BY ORDER OF THE COURT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION RF FISHER: Court Grants Prelim Approval of FLSA Settlement ---------------------------------------------------------- The United States District Court for the District of Kansas granted Parties' Joint and Amended Motion for Preliminary Approval of Amended Collective Action Settlement in the case captioned MICHELLE C. SMITH, on behalf of herself and all others similarly situated, Plaintiff, v. R.F. FISHER ELECTRIC COMPANY, LLC, Defendant, Case No. 2:17-cv-02457-KGG (D. Kan.), after finding that the Proposed Settlement is Fair, Reasonable, and Adequate. In determining whether a proposed settlement under the Fair Labor Standards Act (FLSA) is fair and equitable, the factors which courts consider in approving a class action settlements under Fed. R. Civ. P. 23(e) are instructive, as well as factors relevant to the history and policy of the FLSA. The Requested Attorneys' Fees and Costs are Reasonable. Judge Crabtree approved counsel's request for no fee and cost award. Having reviewed the pleadings and the Amended Agreement, the Court concur and approve Plaintiff's counsel's request for no fee and cost award. A full-text copy of the District Court's July 19, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y8eo662n from Leagle.com. Michelle C. Smith, on behalf of herself and all others similarly situated., Plaintiff, represented by Michael A. Williams -- mwilliams@williamsdirks.com -- Williams Dirks Dameron LLC. R.F. Fisher Electric Company, LLC, Defendant, represented by Alan L. Rupe -- Alan.Rupe@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith, LLP & Jessica L. Skladzien -- Jessica.Skladzien@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. ROANOKE, VA: Court Conditionally Certifies Collective Action ------------------------------------------------------------ In the lawsuit captioned DAWN RENEE WRIGHT and MAURICE PENDELTON on behalf of themselves and all others similarly situated, the Plaintiff, v. CITY OF ROANOKE, VIRGINIA, the Defendant, Case No. 7:18-cv-00210-GEC (W.D. Va.), the Court entered an order on August 10, 2018: 1. conditionally certifying case as a collective action under 29 U.S.C. sectionn 216(b) of the Fair Labor Standards Act; 2. authorizing and approving judicial notice as agreed to by the parties to inform potential collective members of the action and to give them an opportunity to join this action as party plaintiffs by opting in; 3. directing Plaintiffs' counsel to administer the notice through first class mail using a Notice substantially similar to the Notice proposed by the parties. Within 15 calendar days of the entry of this Order, Defendant's counsel shall provide a list to Plaintiffs' counsel in an electronically manipulable format, e.g. Excel, of all persons employed by Defendant as police officers, whose eligibility for FLSA overtime was determined based on a 14 day cycle at a rank lower than Lieutenant, with the City of Roanoke Police Department during the previous three years preceding May 11, 2018, including their names, last known addresses, personal email addresses (if known), telephone numbers, and employment dates. Plaintiffs' counsel shall disburse the Notice within 7 calendar days of receipt of such list from Defendant"; 4. scheduling Notice period ty extend 45 days from the date that Plaintiffs' counsel disburses the Notice. As soon as reasonably practicable, Plaintiffs' counsel will file a submission indicating Notice has been sent; and 5. making entry of the Order is without prejudice to any subsequent effort of Defendant to decertify the collective action. Specifically, by agreeing to this conditional certification, Defendant is not agreeing that collective certification is appropriate and is not waiving any right to move to decertify the collective certification following discovery. Attorneys for Plaintiffs: Harris D. Butler, III, Esq. Zev H. Antell, Esq. ButlerRoyals, PLC 140 Virginia Street, Suite 302 Richmond, VA 23219 Telephone: (804) 648 4848 Facsimile: (804) 237 0413 E-mail: harris.butler@butlerroyals.com zev.antell@butlerroyals.com - and - Thomas E. Strelka, Esq. L. Leigh R. Strelka, Esq. STRELKA LAW OFFICE, PC Warehouse Row 119 Norfolk Avenue, S. W., Suite 330 Roanoke, VA 24011 E-mail: thomas@strelkalaw.com eigh@strelkalaw.com Attorneys for Defendants: Paul G. Klockenbrink, Esq. Catherine J. Huff, Esq. Gentry Locke, Esq. 10 Franklin Road S.E., Suite 900 P.O. Box 40013 Roanoke, VA 24022-0013 E-mail: klockenbrink@gentrylocke.com huff@gentrylocke.com - and - Timothy R. Spencer, Esq. ASSISTANT CITY ATTORNEY CITY OF ROANOKE 215 Church Avenue SW, Room 464 Roanoke, VA 24011 E-mail: timothy.spencer@roanokeva.gov ROCKWELL MEDICAL: Faces Securities Fraud Class Action ----------------------------------------------------- Block & Leviton LLP, a securities litigation firm representing investors nationwide, on July 31 disclosed that a securities fraud class action has been filed against Rockwell Medical, Inc. ("Rockwell" or the "Company") (NASDAQ: RMTI) and certain of its officers alleging violations of the federal securities laws. Block & Leviton encourages shareholders to contact the Firm ahead of the September 25, 2018 lead plaintiff deadline. On June 27, 2018, Rockwell announced that its auditor, Plante & Moran, PLLC, had resigned. Rockwell's auditor expressed concerns that the Company already knew that its drug "Triferic" would not receive "separate reimbursement" from the Centers for Medicare and Medicaid Services (CMS). The auditor alleged that the Company failed to communicate this information and/or made misleading representations. The auditor further stated that there were material weaknesses in Rockwell's internal controls over financial reporting. On this news, Rockwell's share price fell $0.85, or over 16%, over two consecutive trading days to close at $4.41 on June 28, 2018. The complaint, filed in the United States District Court Eastern District of New York, alleges that between March 16, 2018 and June 26, 2018, inclusive (the "Class Period"), Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose that: (1) Rockwell was aware that the CMS will not pursue Rockwell's proposal for separate reimbursement for Triferic; (2) the estimated reserves in Rockwell's Form 10-Q for the quarter ended March 31, 2018 were misstated; (3) there were material weaknesses in Rockwell's internal control over financial reporting; (4) consequently, Rockwell's internal controls over financial reporting were ineffective; (5) Robert L. Chioini, former Chief Executive Officer of Rockwell, withheld material information regarding Triferic from Rockwell's auditor, corporate counsel and five independent directors of Rockwell's Board; and (6) as a result, Defendants' statements about Rockwell's business, operations and prospects were materially false and misleading and/or lacked reasonable bases at all relevant times. If you purchased RMTI shares between March 16, 2018 and June 26, 2018 and wish to serve as a lead plaintiff, you must move the Court no later than September 25, 2018. As a member of the class, you may seek to file a motion to serve as a lead plaintiff or take no action and remain an absent class member. If you wish to become involved in the litigation or have questions about your legal rights, you are encouraged to contact Attorney John DeFelice at (888) 868-2385, by email at john@blockesq.com or by visiting http://shareholder.law/rockwell. Confidentiality to whistleblowers or others with information relevant to this investigation is assured. Block & Leviton LLP -- http://www.blockesq.com-- was recently ranked 4th among securities litigation firms by ISS for recoveries in 2017. The firm represents many of the nations' largest institutional investors and numerous individual investors in securities litigation throughout the country. Indeed, its lawyers have recovered billions of dollars for its clients. [GN] ROSICKI ROSICKI: Dismissal of A. Cohen's FDCPA Suit Affirmed ------------------------------------------------------------ The United States Court of Appeals, Second Circuit, affirmed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned AARON COHEN, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., DITECH FINANCIAL LLC, Defendants-Appellees, Docket No. 17-950-cv (2nd Cir.). The plaintiff, Aaron Cohen, brings this putative class action against Ditech Financial LLC (Ditech), Cohen's mortgage-loan servicer, and Rosicki, Rosicki & Associates, P.C. (Rosicki), the servicer's law firm, alleging violations of the Fair Debt Collection Practices Act (FDCPA), in connection with their attempt to initiate foreclosure proceedings on his home. Ditech argues that Cohen lacks standing under Article III of the Constitution to bring this action. To satisfy the irreducible constitutional minimum of Article III standing, a plaintiff must demonstrate (1) injury in fact (2) a causal connection between that injury and the complained-of conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. Here, Cohen alleges that the defendants violated 15 U.S.C. Sections 1692e and 1692g. The Court have held in the wake of Spokeo, albeit in non-binding summary orders, that Sections 1692e and 1692g protect an individual's concrete interests, so that an alleged violation of these provisions satisfies the injury-in-fact requirement of Article III. Both of Cohen's FDCPA claims are based on the defendants' allegedly incorrect identification of Green Tree as the creditor in the foreclosure complaint, Certificate, and RJI. Taken as true, this misrepresentation might have deprived Cohen of information relevant to the debt prompting the foreclosure proceeding, posing a risk of real harm insofar as it could hinder the exercise of his right to defend or otherwise litigate that action. The Court concludes that Cohen has alleged an injury-in-fact and therefore has standing. Here, the purpose of the defendants' foreclosure proceeding was to obtain payment of the underlying mortgage note. Indeed, every mortgage foreclosure, judicial or otherwise, is undertaken for the very purpose of obtaining payment on the underlying debt, either by persuasion, i.e., forcing a settlement or compulsion, i.e., obtaining a judgment of foreclosure, selling the house at auction, and applying the proceedings from the sale to pay down the outstanding debt. Moreover, mortgage foreclosure is contemplated in another portion of the statute. The Court therefore concludes that mortgage foreclosure meets the FDCPA's broad definition of debt collection. Failure to State a Claim Under 15 U.S.C. Section 1692e The Court nonetheless affirms the dismissal of Cohen's Section 1692e claim for failure to state a claim. Section 1692e prohibits debt collectors from making any false, deceptive, or misleading representation or means in connection with the collection of any debt. Cohen's principal allegation is that the defendants violated Section 1692e by falsely identifying Green Tree as the creditor with respect to Cohen's mortgage in the foreclosure complaint, the Certificate, and RJI. Here, there is no indication that the identification of Green Tree as the creditor misrepresented the nature or legal status of the debt or undermined Cohen's ability to respond to the debt collection. Although Ditech's response to the qualified written request stated that Fannie Mae owned Cohen's mortgage account, Green Tree was responsible for servicing the account. As the account servicer, Green Tree had the right to collect mortgage payments and to pursue foreclosure under New York law. Moreover, it is undisputed that the entity to whom Cohen's payments on his debt were owed in the first instance was Green Tree and that Green Tree was also the primary point of contact for any questions Cohen may have had about his mortgage. On the facts reflected in the complaint and attached documents, the false identification of Green Tree as the creditor would not have caused even a highly unsophisticated consumer to suffer a disadvantage in charting a course of action in response to the collection effort. Indeed, stating accurately that Fannie Mae was the creditor to whom the debt is owed likely would have caused confusion inasmuch as Cohen might then have been led to believe wrongly, of course that he should make his monthly mortgage payments to Fannie Mae. The entity to which a debtor owes money potentially affects the debtor in the most basic ways, such as what the debtor should write after pay to the order of' on the payment check to ensure that the debt is satisfied. A misrepresentation concerning the creditor's identity in debt collection notices can cause a debtor confusion and delay in trying to contact the proper party concerning payment on her loan and resolution of the problem. Here, however, the facts and circumstances of the foreclosure proceeding and the foreclosure filings at issue in this lawsuit admit no plausible claim that the challenged misrepresentation of Green Tree rather than Fannie Mae as the creditor undermined Cohen's or any other similarly situated mortgagor's ability to respond to the debt. Failure to State a Claim Under 15 U.S.C. Section 1692g The Court also affirms the district court's dismissal of Cohen's Section 1692g claim for failure to state a claim upon which relief can be granted. Cohen claims that the defendants violated Section 1692g(a)(2), which requires a debt collector, in its initial communication with the debtor, to identify the creditor to whom the debt is owed. Cohen contends that the Certificate and RJI9 were initial communications as defined by Section 1692g(a) and that because the defendants failed to identify the correct creditor in these documents, they are liable for damages under the FDCPA. The defendants counter that Cohen failed to state a Section 1692g claim because the Certificate and RJI are exempt from the FDCPA's definition of initial communications. The defendants rely on Section 1692g(d), which provides that a communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). This broad exclusion applies not only to the formal documents that make up a standard pleading, but also to any communication forming any part thereof, including exhibits attached to a complaint. The Court concludes that the Certificate falls within Section 1692g(d)'s pleading exclusion, and is therefore not an initial communication, because the defendants were legally obligated to file this document with the foreclosure complaint. A full-text copy of the Second Circuit's July 23, 2018 Opinion is available at https://tinyurl.com/yc4j6pa7 from Leagle.com. DANIEL A. EDELMAN, Edelman, Combs, Latturner & Goodwin, LLC (Tiffany N. Hardy, Edelman, Combs, Latturner & Goodwin, LLC; Shimshon Wexler, The Law Office of Shimshon Wexler, PC, on the brief), for Plaintiff-Appellant. HENRY MASCIA (Cheryl F. Korman, on the brief), Rivkin Radler LLP, for Defendant-Appellee Rosicki, Rosicki & Associates, P.C. MARTIN C. BRYCE, JR. (Adam P. Hartley -- HARTLEYA BALLARDSPAHR.COM -- Alexander Kommatas -- KOMMATASA BALLARDSPAHR.COM -- on the brief), Ballard Spahr LLP, New York, New York, for Defendant-Appellee Ditech Financial, LLC. Mary McLeod, General Counsel, John R. Coleman, Deputy General Counsel, Steven Bressler, Assistant General Counsel, Nandan M. Joshi , Joseph Frisone, Counsel, Consumer Financial Protection Bureau, Washington, D.C., for Amicus Curiae Consumer Financial Protection Bureau, in support of Plaintiff-Appellant. RSKM LLC: Corr Sues over Debt Collection Practices -------------------------------------------------- Vickie Corr, individually and on behalf of all others similarly situated, Plaintiff v. RSKM, LLC dba E&A Medical Billing & Insurance Services, Defendant, Case No. 2:18-cv-02323-DLR (D. Ariz., July 24, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect debt. RSKM, LLC dba E&A Medical Billing & Insurance Services is a company engaged as a debt collector. [BN] The Plaintiff is represented by: Russell S. Thompson, IV, Esq. Thompson Consumer Law Group, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: (602) 388-8898 Facsimile: (866) 317-2674 E-mail: rthompson@ThompsonConsumerLaw.com - and - Joseph Panvini, Esq. Thompson Consumer Law Group, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: (602) 388-8875 Facsimile: (866) 317-2674 E-mail: jpanvini@ThompsonConsumerLaw.com RUSHMORE LOAN: Wortman Alleges Wrongful Debt Collections -------------------------------------------------------- Nicole T. Wortman, and Shane W. Wortman, individually and on behalf of all others similarly situated, Plaintiff v. Rushmore Loan Management Services LLC, Defendant, Case No. 1:18-cv-04894 (N.D. Ill., July 18, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Rushmore Loan Management Services LLC provides residential mortgage loan servicing and customer support for performing, re-performing, and non-performing loans in the United States and Puerto Rico. The company also provides wholesale loan origination services. It serves borrowers, broker clients, homeowners, and investors. The company was incorporated in 2008 and is based in Irvine, California. [BN] The Plaintiff is represented by: Joseph Scott Davidson, Esq. James C. Vlahakis, Esq. Mohammed Omar Badwan, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8181 E-mail: jdavidson@sulaimanlaw.com jvlahakis@sulaimanlaw.com mbadwan@sulaimanlaw.com SAIC INC: Awaits Court Approval of Securities Case Settlement ------------------------------------------------------------- Leidos Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 27, 2018, for the quarterly period ended June 29, 2018, that the parties in the case entitled, In Re: SAIC, Inc. Securities Litigation awaits court approval on their proposed settlement. The terms of the proposed settlement remain subject to court approval, which is expected to occur in 2018. Between February and April 2012, alleged stockholders filed three putative securities class actions against the Company and several former executives relating to the Company's contract to develop and implement an automated time and attendance and workforce management system for certain agencies of the City of New York ("CityTime"). One case was withdrawn and two cases were consolidated in the U.S. District Court for the Southern District of New York in In Re: SAIC, Inc. Securities Litigation. The consolidated securities complaint asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 based on allegations that the Company and individual defendants made misleading statements or omissions about the Company's revenues, operating income and internal controls in connection with disclosures relating to the CityTime project. The plaintiffs sought to recover from the Company and the individual defendants an unspecified amount of damages class members allegedly incurred by buying Leidos' stock at an inflated price. The District Court dismissed the plaintiffs' claims with prejudice and without leave to replead. The plaintiffs then appealed to the United States Court of Appeals for the Second Circuit, which issued an opinion affirming in part, and vacating in part, the District Court's ruling. The Company filed a petition for a writ of certiorari in the U.S. Supreme Court, which was granted on March 27, 2017. The District Court granted the Company's request to stay all proceedings, including discovery, pending the outcome at the Supreme Court. In September 2017, the parties engaged in mediation resulting in an agreement to settle all remaining claims for an immaterial amount to be paid by the Company. The amounts payable by the Company are covered by an insurance policy. The terms of the proposed settlement remain subject to court approval, which is expected to occur in 2018. Leidos Holdings, Inc. provides services and solutions in the defense, intelligence, civil, and health markets primarily in the United States. The company operates through three segments: Defense Solutions, Civil, and Health. The company was founded in 1969 and is headquartered in Reston, Virginia. SCANIA: RHA Sees Progress in Cartel Class Action ------------------------------------------------ Handy Shipping Guide reports that regular readers with an eye on the road freight industry will be aware of the accusations of cartel activity aimed squarely at some of the continent's major truck manufacturers, accusations which resulted in EUR2.9 billion fines for four of the five companies involved two years ago. Subsequently fines for Scania, which had plead innocence, pushed this up to EUR3.8 billion. With the Road Haulage Association (RHA) subsequently coordinating a legal class action on behalf of its members, and indeed other operators, the latest developments see the long legal battle begin to take shape and substance. The RHA has now submitted its claim application to the Competition Appeal Tribunal and says that, if successful, UK transport operators could be in for a possible windfall of over GBP6,000 for every 6-tonne and above vehicle bought or leased between 1997 and 2011. Broadly speaking, operators are entitled to claim for the difference between what they paid for their trucks (new, second-hand or leased) and what they would have paid had the cartel not existed. RHA chief executive Richard Burnett said the truck makers had been operating ‘behind closed doors' and called for transparency. He commented: "If the RHA's competition claim is successful, there is a strong potential that the majority of the industry's operators will benefit. This won't happen overnight, it's a long process. But we will continue to push for a result that will help the thousands of operators who have been dealt a poor deal. We estimate that the truck cartel will have impacted upon the buyers of 600,000 trucks that were purchased in the UK between 1997 and 2011, amounting to a potential compensation claim of over GBP5 billion. "On the same basis, we estimate that operators in the rest of Europe bought 3.4 million trucks and could also be due compensation of over GBP25 billion. We are concerned that the profits made on the back of truck sales could be the tip of a cartel iceberg. Many of the truck manufacturers have a motor ‘arm', Volvo, Renault, Mercedes and Iveco (Fiat and Ferrari). And who can forget the VW emissions scandal in 2015?" VW are the automotive side of truck manufacturers Scania and MAN (which as the whistleblower escaped the EU penalty completely). More than 50,000 VW owners have signed up for that class action in a bid to get a pay-out because of defeat devices installed to fool emission tests, and there is some speculation that they may receive up to 100% of the original cost of their cars, on average around GBP17,500. The European Commission has also said it is investigating allegations of collusion among the German car manufacturers over emissions having seen the depths of collusion in the truck cartel case. To process the class action suit the RHA built a dedicated website which so far has seen over 3,600 operators sign up representing over 160,000 trucks sold or leased during the cartel period. A further almost 700 operators have registered their interest and are in the process of signing up. Other class action suits are also being pursued for example by lawyers CollyerBristow. [GN] SECURUS TECHNOLOGIES: Classes in ICS Suit Decertified ----------------------------------------------------- In the cases, SUSAN MOJICA and THOMAS MOJICA, Plaintiffs, v. SECURUS TECHNOLOGIES, INC. Defendant, and IN RE GLOBAL TEL*LINK CORPORATION ICS LITIGATION, Case Nos. 5:14-CV-5258, 5:14-CV-5275 (W.D. Ark.), Judge Timothy L. Brooks of the U.S. District Court for the Western District of Arkansas, Fayetteville Division, (i) granted Securus's Motion for Class Decertification; (ii) granted Securus's Motion for Summary Judgment; (iii) denied the Plaintiffs' Motion for Partial Summary Judgment; (iv) denied the Plaintiffs' Motion for Primary Jurisdiction Referral and Stay Pending Referral; (v) denied the Plaintiffs' Motion for Primary Jurisdiction Referral and Stay Pending Referral (vi) granted GTL's Motion to Decertify Class and to Vacate Order Granting Class Certification; and (vii) granted GTL's Motion for Summary Judgment. The two cases are nationwide class action lawsuits involving rates and fees charged for the provision of inmate calling services ("ICS") to prisoners and their loved ones. Defendants Securus and GTL are ICS providers; and the Plaintiffs and the class members are users of ICS. The lawsuit against Securus is brought by Susan and Thomas Mojica; and the lawsuit against GTL is brought by Kaylan Stuart, Dustin Murilla, Walter Chruby, and Rocky Hobbs. In both cases, the Plaintiffs seek to recover allegedly exorbitant rates and fees they paid to the defendants, bringing claims under the Federal Communications Act ("FCA") and the common law of unjust enrichment. In February 2000, a woman named Martha Wright, along with other similarly situated individuals, filed a class action complaint in the U.S. District Court for the District of Columbia against a variety of defendants (including those named in the instant cases). The plaintiffs in that lawsuit alleged that various telephone companies entered into exclusive agreements to provide ICS at correctional facilities throughout the United States and exploited those monopolies by charging unjust and unreasonable rates for inmate phone calls in violation of the FCA, thereby unjustly enriching themselves. In 2001, the Wright lawsuit was stayed, pending the resolution of related proceedings before the Federal Communications Commission ("FCC"). Twelve years later, in September 2013, the FCC instituted an interim regulatory scheme designed to prospectively curb the practices complained of in the Wright lawsuit. The two lawsuits against Securus and GTL were filed in August and September of 2014, respectively. But importantly, they're not the only lawsuits that were filed in the Court against these Defendants regarding ICS. The instant lawsuits are concerned solely with rates and fees associated with interstate calls. But after these two lawsuits were filed, two other lawsuits dealing only with intrastate calls were filed in the Court: one against GTL in June 2015, see Chruby et al. v. Global Tel*Link Corp., Case No. 5:15-cv-1536, and one against Securus in January 2017, see Antoon v. Securus Techs., Inc., Case No. 5:17-cv-5008. In 2015, the FCC entered a Second Report and Order and Third Further Notice of Proposed Rulemaking In the Matter of Rates for Interstate Inmate Calling Services ("Second Report and Order"), that imposed caps on the amounts that ICS providers could charge consumers in calling rates and ancillary fees. On Feb. 3, 2017, the Court entered orders in the two instant cases, certifying nationwide classes on the Plaintiffs' claims under the FCA for unjust and unreasonable calling rates and deposit fees on prepaid accounts, along with multi-state subclasses on the Plaintiffs' claims under state common law for unjust enrichment from calling rates. Their theory of liability for class certification depended on the proposition that "site commissions," which the Defendants would pay to states in order to obtain ICS contracts, were not legitimate costs of business, and that it was unjust and unreasonable for the defendants to recoup site commissions from the class members through inflated calling rates and deposit fees. However, four months later in the case of Global Tel*Link v. FCC, 866 F.3d 397 (D.C. Cir. 2017), the U.S. Court of Appeals for the D.C. Circuit reversed and remanded the Second Report and Order in part on the grounds that site commissions are legitimate costs of business when they are a condition precedent to obtaining ICS contracts. Then, five months after that, the Court entered an order denying certification of an Arkansas unjust enrichment class in the intrastate case of Chruby, Case No. 5:15-cv-1536, and suggested that its reasons for doing so might also warrant decertification of the unjust-enrichment classes in the instant two interstate cases of Mojica v. Securus Techs., Inc., Case No. 5:14-cv-5258, and In re Global Tel*Link Corp. ICS Litig., Case No. 5:14-cv-5275 ("In re GTL"). Now, nine months and several stays later, the Court finally takes up the issues in these two cases that were foreshadowed by the D.C. Circuit opinion and the Court's denial of class certification in Chruby. In the Opinion and Order, Judge Brooks rules on all such pending motions that request class decertification, summary judgment, or primary jurisdiction referral. He begins with the issue of decertification, in conjunction with the Plaintiffs' pending requests for primary jurisdiction referral to the FCC. He holds that the FCA classes will be decertified with respect to claims for unjust and unreasonable calling rates because, in light of the D.C. Circuit opinion, common issues no longer predominate over individual ones. The matter will not be referred to the FCC for additional guidance or clarification, because none is needed. The Judge presently believes that the same concerns informing its decision not to certify intrastate unjust enrichment classes warrant decertifying the interstate unjust enrichment classes in both Mojica and In re GTL. For any given phone call, it is impossible to know whether a class member's use of ICS on that occasion was voluntary or the product of, e.g., duress, without examining the particular circumstances surrounding that call, including the contents of the call itself. Surely a phone call between an inmate and his dying mother would defeat a voluntary-payment defense; but it seems unlikely the same could be said for a phone call between an inmate and a journalist made at the journalist's expense. He has little doubt that there are a great many calls that could defeat a voluntary-payment defense, but that is not the issue under Rule 23(b)(3); rather, the issue is whether this can be adjudicated without overwhelmingly individualized inquiry. He believes it cannot be, and that this means the unjust enrichment classes in these two interstate cases never should have been certified. Therefore, they will be decertified. The Judge turns the parties' pending requests for summary judgment. As with their claims for calling rates, he finds that the Plaintiffs have not presented any theory of liability or damages on their deposit fee claims in either of the instant cases that accounts for site commissions as recoverable costs. Since they've not advanced a methodology by which the FCC could properly hold, in the wake of the D.C. Circuit opinion, that their deposit fees were unjust or unreasonable, their deposit fee claims will likewise be dismissed. Turning now to the individual claims for unjust enrichment in these two cases: the Defendants argue that they are entitled to summary judgment on these claims because they are preempted by federal law. The Judge agrees. He holds that the Plaintiffs' claims for unjust enrichment in both Mojica and In re GTL will be dismissed with prejudice. He agrees with the Seventh and Tenth Circuits that 47 U.S.C. Sections 201 and 202, read together, demonstrate a congressional intent that individual long-distance customers throughout the United States receive uniform rates, terms and conditions of service, and that this uniformity principle of the FCA preempts state law challenges to the reasonableness of the rates, terms, and conditions of service provided by telecommunications carriers for interstate calls. To hold otherwise would result in the very discrimination Congress sought to prevent through 47 U.S.C. Section 202(a)'s mandate that it will be unlawful for any common carrier to subject any particular locality to any undue or unreasonable prejudice or disadvantage. For these reasons, in the case of Mojica v. Securus Techs., Inc., Judge Brooks decertified all classes previously certified in the case, and dismissed with prejudice the named Plaintiffs' individual claims. Judgment will enter separately and contemporaneously with the Order. In the case of In re Global Tel*Link Corp. ICS Litig., the Judge decertified all classes previously certified in the case, and dismissed with prejudice the named Plaintiffs' individual claims. Judgment will enter separately and contemporaneously with the Order. The notice to the classes of the order, in a form approved by the Court, will be disseminated in accordance with a notice program to be approved by the Court following consideration of the parties' proposal(s) for the form and manner of notice, which proposal(s) will be submitted to the Court within 14 days of the Order. A full-text copy of the Court's June 29, 2018 Memorandum Opinion and Order is available at https://is.gd/hV3a2s from Leagle.com. Susan Mojica, Individual claims dismissed with prejudice per order filed 6/29/2018, Plaintiff, represented by Amanda Trask -- atrask@ktmc.com -- Kessler Topaz Meltzer Check LLP, Amy C. Martin -- amy@everettfirm.com -- Attorney at Law, Barbara A. Podell -- bpodell@bm.net -- Berger Montague P.C., Benjamin D. Brown -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers Toll PLLC, Donna Siegel Moffa -- dmoffa@ktmc.com -- Kessler Topaz Meltzer Check LLP, James Maro -- jmaro@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice, Peter R. Kahana -- pkahana@bm.net -- Berger Montague P.C., Peter A. Muhic -- pmuhic@ktmc.com -- Kessler Topaz Meltzer Check LLP, Robert A. Braun -- RBraun@cohenmilstein.com -- Cohen Milstein Sellers Toll PLLC, Yechiel Michael Twersky -- mitwersky@bm.net -- BERGER MONTAGUE P.C., Patrick Howard -- phoward@smbb.com -- Saltz Mongeluzzi Barrett Bendesky P.C. & Samantha Holbrook -- sholbrook@ktmc.com -- Kessler Topaz Meltzer & Check, LLP. Securus Technologies, Inc., Defendant, represented by James M. Graves -- jgraves@bassettlawfirm.com -- Bassett Law Firm LLP, Robert L. Jones, III, Conner & Winters, Woody Bassett -- wbassett@bassettlawfirm.com -- Bassett Law Firm, Craig A. Stanfield, King & Spalding LLP, pro hac vice, David Bruce Salmons, Morgan Lewis Bockius LLP, pro hac vice, Elizabeth Brooke Herrington, Morgan Lewis Bockius LLP, Joshua Fowkes -- joshua.fowkes@arentfox.com -- Arent Fox LLP, Kerri E. Kobbeman, Conner & Winters, LLP, Megan R. Braden, Morgan Lewis Bockius LLP & Stephanie Joyce -- stephanie.joyce@arentfox.com -- Arent Fox LLP. Thomas Mojica, Intervenor, represented by Amy C. Martin, Attorney at Law, Peter A. Muhic, Kessler Topaz Meltzer Check LLP, pro hac vice, Donna Siegel Moffa, Kessler Topaz Meltzer Check LLP & Samantha Holbrook, Kessler Topaz Meltzer & Check, LLP. SHILOH TREATMENT: Judge Orders Removal of Migrant Children ---------------------------------------------------------- Alex Johnson, writing for NBC News, reports that a federal judge on July 30 ordered the government to transfer all but the most troubled migrant children who have been separated from their families out of an immigration facility in Texas that is alleged to use psychotropic drugs on its wards. U.S. District Judge Dolly Gee found conditions at the nonprofit Shiloh Treatment Center, in Manvel, near Houston, in violation of a 1997 settlement, called Flores vs. Reno, requiring immigration officials to place detained minors "in the least restrictive setting appropriate to (each Class Member's) age and special needs." A class-action lawsuit filed on behalf of children at Shiloh in April alleged that children being held in facilities like Shiloh are almost certain to be administered psychotropic drugs like Prozac regardless of their conditions and without their parents' consent, it says. The suit alleges that the drugs are a "chemical strait jacket" used to manage trauma preemptively. Judge Gee ordered on July 30 that all children involved in the suit be removed from the Shiloh facility "unless a licensed psychologist or psychiatrist" determines that a particular child "poses a risk of harm to self or others." And she ordered the government to seek consent before giving psychotropic drugs to any detained migrant child. Without consent, the facility may administer such a drug only in an emergency or under a court order, she said. Judge Gee separately ruled on July 27 that an independent monitor should be appointed to assess conditions at facilities like Shiloh. [GN] SKIPTHEDISHES: Drivers File Misclassification Class Action ---------------------------------------------------------- Diana Foxall, writing for Global News, report that SkipTheDishes is known for delivering users' favourite food to their doors, but now, the online service is being served a class-action lawsuit. Charleen Pokornik has been a driver for the company since November 2016. On July 25, she filed a suit on behalf of drivers working in the eight provinces Skip operates. According to the statement of claim, Ms. Pokornik said drivers should be classified as employees, and receive benefits like vacation, overtime and minimum wage. Instead, the company calls its drivers independent contractors and treats them as such, the claim reads. Ms. Pokornik's suit argues SkipTheDishes breaches legislation governing acceptable employment standards across Canada in doing so, and claims drivers have suffered damages and losses as a result of the improper classification. "This matter is before the courts and we look forward to responding through the appropriate channels," said a spokesperson with SkipTheDishes. Competitor Uber Eats announced it would begin operations in Winnipeg in August. [GN] SOLSTICE BENEFIT: Sends Unsolicited Fax Messages, Zauderer Claims ----------------------------------------------------------------- MARC J. ZAUDERER, DMD, a Massachusetts resident, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. SOLSTICE BENEFIT SERVICES, INC. and SOLSTICE BENEFITS, INC., Florida corporations, the Defendants, Case No. 0:18-cv-61820-BB (S.D. Fla., Aug. 7, 2018), challenges Defendants' practice of sending unsolicited facsimiles. According to the complaint, the Defendants knew or should have known that (a) the Plaintiff and the other class members had not given prior express invitation or permission for the Defendants or anybody else to fax advertisements about the Defendants' products, goods or services; (b) the Plaintiff and the other class members did not have an established business relationship; (c) Defendants transmitted advertisements; (d) the Faxes did not contain the required Opt-Out Notice; and (e) Defendants' transmission of advertisements that did not contain the required opt-out notice or were sent without prior express invitation or permission was unlawful. The Defendants' actions caused damages to the Plaintiff and the other class members. Receiving the Defendants' junk faxes caused Plaintiff and the other recipients to lose paper and toner consumed in the printing of the Defendants' faxes. Moreover, the Defendants' faxes used the Plaintiff's and the other class members' telephone lines and fax machine. The Defendants' faxes cost the Plaintiff and the other class members time, as the Plaintiff and the other class members and their employees wasted their time receiving, reviewing and routing the unauthorized faxes. That time otherwise would have been spent on the Plaintiff's and the other class members' business activities. The Defendants' faxes unlawfully interrupted the Plaintiff's and other class members' privacy interests in being left alone.[BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368 1500 Facsimile: (847) 368 1501 STEAK 'N SHAKE: 3rd. Cir. Flips Certification of Class in ADA Suit ------------------------------------------------------------------ The United States Court of Appeals, Third Circuit, reversed the District Court's judgment granting Plaintiffs' Motion for Class Certification in the case captioned CHRISTOPHER MIELO; SARAH HEINZL, individually and on behalf of all others similarly situated, v. STEAK 'N SHAKE OPERATIONS, INC., Appellant, No. 17-2678 (3rd Cir.). The District Court certified the Plaintiffs' proposed class, and Steak 'n Shake now appeals that certification decision. In this class action lawsuit, two disability rights advocates have sued Steak 'n Shake under the Americans with Disabilities Act (ADA). Alleging they have personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities, these Plaintiffs seek to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak 'n Shake restaurants throughout the country. PLAINTIFFS FAIL TO SATISFY RULE 23(A) A plaintiff wishing to bring a lawsuit in federal court must first satisfy the explicit requirements set forth in Rule 23(a). This calls for a rigorous analysis that usually requires courts to make factual findings and legal conclusions that overlap the underlying merits of the suit. Second, if the requirements of Rule 23(a) have been satisfied, the party seeking certification must also establish that her claim fits within one of the three types of class categories outlined in Rule 23(b). Here, the Plaintiffs have sought to establish a Rule 23(b)(2)16 class for which injunctive relief is appropriate to the class as a whole. But in defining the certified class, the District Court's Rule 23 analysis was flawed from the start. Citing Eisenberg v. Gagnon, 766 F.2d 770, the District Court wrote that when doubt exists concerning certification of the class, the court should err in favor of allowing the case to proceed as a class action. This was clear error. Numerosity Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. Like other factual determinations underlying Rule 23 determinations, it is a plaintiff's burden to demonstrate numerosity by a preponderance of the evidence. The Plaintiffs attempt to carry their numerosity burden by offering three strands of evidence but that evidence ultimately falls short. First, the Plaintiffs point to census data showing that there are between 14.9 million to 20.9 million persons with mobility disabilities who live in the United States. Second, the Plaintiffs point to a single off-hand comment made by a Steak 'n Shake executive speculating that it would be fair to say that thousands of people with disabilities utilize Steak 'n Shake parking lots each year. Third, the Plaintiffs ask this Court to use its common sense and conclude that numerosity has been satisfied. The Plaintiffs' first strand of evidence indicating that there are between 14.9 million to 20.9 million persons with mobility disabilities who live in the United States suggests that it is highly likely that at least 40 of those individuals would have experienced access violations at one of the Steak 'n Shake locations at issue in this litigation. But although those odds might be enough for a good wager, the Court must be mindful that mere speculation as to the number of class members even if such speculation is a bet worth making cannot support a finding of numerosity. The Plaintiffs' second strand of evidence advances their Rule 23(a)(1) burden no further. The single statement of a Steak 'n Shake executive characterizing the number of patrons who use company parking lots does not assuage our concerns about speculation. The fact that one of defendant's executives has himself speculated as to the number of disabled individuals who patronize a Steak 'n Shake restaurant and traverse their parking lots adds nothing. Speculation squared is still speculation. Because the Plaintiffs have failed to present evidence sufficient to permit the Court to go beyond speculation as to the impracticability of joinder, the Court concludes that the Plaintiffs have failed to satisfy their Rule 23(a)(1) burden. If the Plaintiffs wish to attempt to satisfy their Rule 23(a)(1) burden upon remand, they will need to provide evidence that will permit the District Court to conclude that a sufficiently numerous group of disabled individuals have experienced or will experience ADA violations at a relevant Steak 'n Shake restaurant, and that joinder is thereby impracticable. Commonality Rule 23(a)(2) requires the Plaintiffs to demonstrate that "there are questions of law or fact common to the class." The broad class definition certified by the District Court includes a commonality issue. As previously set forth, the District Court certified a class defined as: All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak 'n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers at any Steak 'n Shake restaurant where Defendant owns, controls and/or operates the parking facilities. Even assuming, arguendo, that a proper interpretation of the class definition would limit the class to members who suffered injuries within a Steak 'n Shake parking facility, the wide variety of regulations quoted above reveal that there are still various types of ADA violations that could occur specifically in a parking facility. The Plaintiffs' own complaint, for example, lists seven different categories of parking facility violations. The complaint refers to: (1) parking space slopes; (2) access aisle slopes; (3) slopes relating to the route leading to a facility entrance; (4) lack of proper parking signage; (5) lack of proper van accessible designations; (6) improper mounting of accessible parking signage; and (7) curb ramp slopes. Although all seven of these categories allegedly constitute ADA violations, they harm class members in materially different ways. A class member, for example, complaining that accessible parking signage was mounted less than 60 inches above the finished surface of the parking area, has experienced harm different from that of a class member complaining that the surfaces of one or more access aisles had slopes exceeding 2.1%. As Dukes makes clear, suffering a violation of the same provision of law is not enough. Instead, class members' claims must depend upon a common contention that is capable of class-wide resolution in one stroke. The wide variety of potential ADA violations captured in the broad class definition certified by the District Court does not lend itself to such a resolution. The Court therefore conclude that the Plaintiffs have failed to satisfy Rule 23(a)(2). Accordingly, the District Court's judgment will be reversed, and this matter will be remanded to the District Court for reconsideration of the class certification question. A full-text copy of the Third Circuit's July 26, 2018 Opinion is available at https://tinyurl.com/y7z2l4k3 from Leagle.com. Maria G. Danaher, Patrick J. Fazzini, Ogletree, Deakins, Nash, Smoak & Stewart. David H. Raizman [ARGUED], Ogletree Deakins, Counsel for Appellant. Teresa L. Jakubowski , Barnes & Thornburg, Counsel for Amicus Appellants. Cary Silverman , Shook Hardy & Bacon, Counsel for Amicus Appellants. R. Bruce Carlson , Stephanie K. Goldin , Edwin J. Kilpela, Jr. [ARGUED], Benjamin J. Sweet , Carlson Lynch Sweet & Kilpela, Counsel for Appellee. Sharon M. Krevor-Weisbaum , Brown Goldstein & Levy, Counsel for Amicus Appellee. Amy F. Robertston , Civil Rights & Enforcement Center, Counsel for Amicus Appellees. STRACENER BROTHERS: Underpays Construction Workers, Brown Claims ---------------------------------------------------------------- TRAVIS BROWN and TERRANCE WILSON, individually and on behalf of all others similarly situated, Plaintiff v. STRACENER BROTHERS CONSTRUCTION CORP.; N & M CONCRETE, LLC; NATO ISLAS ARAGON; MIGUEL ISLAS, Defendants, Case No. 3:18-cv-00134-DPM (E.D. Ark., July 25, 2018) seeks to recover from the Defendants unpaid minimum and overtime wages as required by the Fair Labor Standards Act and the Arkansas Minimum Wage Act. The Plaintiffs were employed by the Defendants as construction workers. Stracener Brothers Construction Corp. is a corporation organized and existing under the laws of the State of Arkansas. The Company provides on-site construction services. [BN] The Plaintiffs are represented by: Daniel Ford, Esq. Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: daniel@sanfordlawfirm.com chris@sanfordlawfirm.com josh@sanfordlawfirm.com STUCKY LAUER: Burton Sues over Debt Collection Practices -------------------------------------------------------- Frankie Burton, individually and on behalf of all others similarly situated, Plaintiff v. Stucky, Lauer & Young; and Credit Bureau Collection Services, Inc., Defendant, Case No. 1:18-CV-2269 (S.D. Ind., July 24, 2018) seeks to stop the Defendants' unfair and unconscionable means to collect debt. Stucky, Lauer & Young, LLP, is an Indiana limited liability partnership and law firm that acts as a debt collector. The Company operates a debt collection business and attempts to collect debts from consumers in the State of Indiana. [BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. Carissa K. Rasch, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angiekrobertson@aol.com carissa@philippslegal.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Telephone: (317) 780-8300 Facsimile: (317) 217-1320 E-mail: steinkamplaw@yahoo.com SUNRUN INC: Underpays Sales Representatives, Dart Suit Alleges -------------------------------------------------------------- SHARON DART, individually and on behalf of all others similarly situated, Plaintiff v. SUNRUN INC., and Does 1 through 500, Defendants, Case No. 18CECG02658 (Cal. Super., Fresno Cty., July 18, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, reimburse business expenses, provide meal periods, and furnish accurate wage statements. Ms. Dart was employed by the Defendant as sales representative from March 2018 to July 2018. Sunrun Inc. engages in the design, development, installation, sale, ownership, and maintenance of residential solar energy systems in the United States. It also sells solar leads. The company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Sunrun Inc. was founded in 2007 and is headquartered in San Francisco, California. [BN] The Plaintiff is represented by: Amy R. Lovegren-Tipton, Esq. TIPTON LEGAL 7503 N. West Avenue, Suite 103 Fresno, CA 93711 Telephone: (559) 421-9137 Facsimile: (559) 921-4333 E-mail: Atipton@TiptonLegal.com SWITCH INC: Mingbo Cai Suit Transferred to District of Nevada ------------------------------------------------------------- The class action lawsuit titled MINGBO CAI, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. SWITCH, INC., ROB ROY, GABE NACHT, ZAREH SARRAFIAN, DONALD SNYDER, TOM THOMAS, BRYAN WOLF, GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES LLC, BMO CAPITAL MARKETS CORP., WELLS FARGO SECURITIES, LLC, CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES, JEFFERIES LLC, BTIG, LLC, RAYMOND JAMES & ASSOCIATES, INC., STIFEL, NICOLAUS & COMPANY, INC. and WILLIAM BLAIR & COMPANY, L.L.C., the Defendants, Case No. 3:18-cv-10425, was transferred from the U.S. District Court for the District of New Jersey, to the U.S. District Court for the District of Nevada (Las Vegas) on Aug. 8, 2018. The District of Nevada Court Clerk assigned Case No. 2:18-cv-01471-JCM-VCF to the proceeding. The case is assigned to the Hon. Judge James C. Mahan. The case is a federal securities action on behalf of a class consisting of all persons who purchased or otherwise acquired Switch Class A common stock pursuant to and/or traceable to the Company's initial public offering commenced on or around October 6, 2017 seeking to recover damages caused by Defendants' violations of Sections 11, 12 and 15 of the Securities Act of 1933. Switch is a company based in Las Vegas, Nevada, that develops and operates the SUPERNAP data center facilities and provides co-location, telecommunications, cloud services, and content ecosystems.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 609 W. South Orange Avenue, Suite 2P South Orange, NJ 07079 Telephone: (973) 313 1887 Facsimile: (973) 833 0399 E-mail: lrosen@rosenlegal.com Attorneys for Defendants: Kevin M. Mcdonough, Esq. LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022 Telephone: (212) 906 1200 SYNCHRONY FINANCIAL: Still Defends Cambell, Neal & Mott TCPA Suits ------------------------------------------------------------------ Synchrony Financial said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 27, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend three putative class action lawsuits alleging violations of the federal Telephone Consumer Protection Act. The Bank or the Company is, or has been, defending a number of putative class actions alleging TCPA claims as a result of phone calls made by the Bank. The complaints generally have alleged that the Bank or the Company placed calls to consumers by an automated telephone dialing system or using a pre-recorded message or automated voice without their consent and seek up to $1,500 for each violation, without specifying an aggregate amount. Campbell et al. v. Synchrony Bank was filed on January 25, 2017 in the U.S. District Court for the Northern District of New York. The original complaint named only J.C. Penney Company, Inc. and J.C. Penney Corporation, Inc. as the defendants but was amended on April 7, 2017 to replace those defendants with the Bank. Neal et al. v. Wal-Mart Stores, Inc. and Synchrony Bank, for which the Bank is indemnifying Wal-Mart, was filed on January 17, 2017 in the U.S. District Court for the Western District of North Carolina. The original complaint named only Wal-Mart Stores, Inc. as a defendant but was amended on March 30, 2017 to add Synchrony Bank as an additional defendant. Mott et al. v. Synchrony Bank was filed on February 2, 2018 in the U.S. District Court for the Middle District of Florida. Synchrony Financial operates as a consumer financial services company in the United States. The company offers private label credit cards, dual cards, general purpose co-branded credit cards, and small and medium-sized business credit products; and promotional financing for consumer purchases, such as private label credit cards and installment loans. Synchrony Financial was incorporated in 2003 and is headquartered in Stamford, Connecticut. T&R MARKET: Judge Approves $1MM Class Action Settlement ------------------------------------------------------- Andrew Westney, writing for Law360, reports that a New Mexico couple who are members of the Navajo Nation asked a federal judge on July 30 to approve a deal that would provide about $1 million to resolve a proposed class action claiming companies near the Navajo reservation preyed on consumers by charging secret fees and hiding the true interest rate for loans tied to consumers' tax refunds. In their July 2017 complaint, William and Sammia DeJolie sought to represent the class of more than 1,000 who they said received tax refund anticipation loans since November 2014. The case is DeJolie et al v. T&R Market, Inc. et al, Case No. 1:17-cv-00733. The case is assigned to Judge James O. Browning. The case was filed July 13, 2017. [GN] TARGET CORP: Stops Selling Popular Potty Trainers ------------------------------------------------- Annamarya Scaccia, writing for Romper, reports that it goes without saying that potty training is hard. The process, overall, is frustrating for both parent and toddler, even if your kid gets the hang of it relatively quickly. But one thing that potty training shouldn't be is physically painful. That's why, as part of a class-action lawsuit settlement, Target has stopped selling two popular potty trainers that allegedly injured multiple boys' genitals. Target had disclosed that the company pulled the WeePOD Basix and the WeePOD Toilet Trainer Squish from its shelves, two potty training products manufactured by Prince Lionheart Inc., according to Kron 4. The big box retailer agreed to stop selling the WeePOD devices in order to settle its part in a class-action lawsuit that claims boys who've used Prince Lionheart's potty trainers had suffered serious injuries to their penises, Kron 4 reported. "No one realizes it," John Kristensen, Esq., one of the attorneys in the case, said at a news conference in June, when the complaint was filed, according to The Press-Enterprise. "They look nice, they're like $15 bucks. They're comfy, they're squishy, they sit on a toilet seat. You're not going to realize that." Romper reached out to both Target Corporation and Prince Lionheart for comment, but did not hear back in time for publication. A Target spokesperson, though, did tell The Mercury News back in June: Target is committed to providing high quality and safe products to our guests, and we require all of our vendors to follow product safety laws and CPSC guidelines for their products that they sell at Target. Prince Lionheart manufactures the product and sells it at a variety of retailers. Prince Lionheart has been in direct communication with the guest's attorneys on this lawsuit, and any additional questions should be directed to them. Target has stopped selling the WeePOD Basix and the WeePOD Toilet Trainer Squish with manufacturing dates before March 23, 2018, according to The Mercury News. The class-action lawsuit alleges that at least 15 young boys endured "gruesome ripping" and other damages to their genitals after their penises became stuck to the products, which have a built-in pee guard, The Mercury News reported. One boy from Riverside, California, reportedly now has "permanent erectile dysfunction," Kristensen to The Mercury News. Kristensen told The Press-Enterprise back in June: It's not the sharp edge, it's the inside that causes a friction. It sticks to the penis like an old leather car seat [if] you're wearing a tank top, it sticks. He continued, according to The Press-Enterprise: It's the same mechanisms, and then when you pull it off, the penis is still stuck, the rest of the body is moving. That skin's so sensitive that it rips. Last year, Prince Lionheart had made some adjustments to the design of the potty trainers so that genitals would not stick, according to Kron 4. But the lawsuit alleges that Target, as well as Prince Lionheart, failed to warn customers who bought the older defective devices about the possible dangers, Kron 4. At the time, Brad Snyder, Esq. -- brad@bradsnyderlaw.com -- the attorney for Prince Lionheart Incorporated, denied the allegations outlined in the lawsuit, telling ABC 7 in a statement: The Court has issued a protective order that bars the parties and their attorneys from disclosing any information that has been produced during the discovery process. ... For that reason, I am unable to comment about the details of the case. What I can say is that my client is a family-owned company that has been developing products that meet the highest standards in safety, quality, and performance for the past 45 years. Prince Lionheart has yet to settle its part of the lawsuit, according to Kron 4.[GN] TATA CONSULTANCY: Court Grants Arbitration of Class Claims ---------------------------------------------------------- The United States District Court for the Northern District of California granted Defendant's Motion to Compel Arbitration of Claims Class Members in the case captioned BRIAN BUCHANAN, ET AL., Plaintiffs, v. TATA CONSULTANCY SERVICES, LTD, Defendant, Case No. 15-cv-01696-YGR(N.D. Cal.). The Plaintiffs bring causes of action for disparate treatment under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866, 42 U.S.C. 1981. The Plaintiffs allege that Tata Consultancy Services (TCS) discriminated against them in their hiring, employment, and/or termination practices based on race and national origin. The parties do not dispute either the existence or applicability of the arbitration agreements. Rather, the plaintiffs contend that the agreements are unenforceable because TCS has waived its right to demand arbitration and the Nationwide Agreement contains impermissible waiver and unconscionable provisions. A party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts. While in some circumstances, the defendants' delay may constitute cause to deny the motion, granting the motion here would merely reduce the size of the class, not derail the litigation in its entirety. The Plaintiffs have not suggested that granting TCS's motion will affect their ability to prosecute the instant class action. Although parties dispute the precise size of the class, and as discussed at the hearing, the Court notes that even assuming numbers least favorable to the plaintiffs lowest class size and highest number of class members bound by arbitration well over 100 class members would remain. Such reduction in class size would have no impact on the plaintiffs' ability to maintain numerosity under Fed. R. Civ. Proc. 23(a)(1). Further, in this context, all the parties' litigation actions would have had to occur in any event plaintiffs knew of the arbitration agreements in drafting their motion for class certification and opposition to TCS's motion for summary judgment. Therefore, the granting of TCS's motion would not prejudice the plaintiffs. Accordingly, the Court finds that TCS has not waived its right to arbitrated claims brought by class members bound by the arbitration agreements. The Plaintiffs also argue that the Nationwide Agreement violates the effective vindication doctrine because it precludes introduction of any pattern-or-practice evidence whatsoever, in violation of the rights the Plaintiffs and class members enjoy in this forum. Here, by its terms, enforcement and interpretation of the Nationwide Agreement is controlled by the state in which an employee was terminated. The Plaintiffs apply California law. While the Court has certified a nationwide class, even if California law did govern the unconscionability determination for each of agreements at issue, the plaintiffs have not shown that the Nationwide Agreement is both procedurally and substantively unconscionable. The Plaintiffs rest their argument for substantive unconscionability on the agreement's selective overlay of a pro-Defendant subset of the Federal Rules of Civil Procedure, namely that it allows TCS to file a motion to dismiss, while denying the employee the opportunity to file a motion to strike or motion for judgment on the pleadings. However, the plaintiffs do not substantively elaborate on the unconscionability of that procedural limitation. First, the procedural and evidentiary rules apply equally to both sides equally. Second, the noted limitation does not appear to rise to the level of unconscionability. A defendant may use a motion to dismiss to test the adequacy of allegations but a plaintiff unilaterally files a complaint. Motions to strike are disfavored and at times address concerns of allegations in a public filing, and thus not relevant in private arbitrations. Motions for judgment on the pleadings are easily recast in terms of motions for summary judgment. Further, neither of those motions are particularly relevant (nor were they used) in this context. In short, the plaintiffs have failed to make a persuasive argument with respect to unconscionability. Accordingly, the Court grants TCS's motion to compel arbitration of the claims belonging to class members who signed the arbitration agreements. A full-text copy of the District Court's July 23, 2018 Order is available at https://tinyurl.com/y9nskxw3 from Leagle.com. Brian Buchanan & Christopher Slaight, Plaintiffs, represented by Daniel A. Kotchen , Kotchen & Low LLP, Daniel Lee Low , Kotchen and Low LLP, Michael J. von Klemperer , Kotchen and Low LLP, Lindsey Grunert , Kotchen and Low LLP, Michael F. Brown -- mbrown@dvglawpartner.com -- DVG Law Partner LLC & Steven Gregory Tidrick -- sgt@tidricklaw.com -- The Tidrick Law Firm. Seyed Amir Masoudi & Nobel Mandili, Plaintiffs, represented by Lindsey Grunert , Kotchen and Low LLP, Michael J. von Klemperer , Kotchen and Low LLP & Daniel A. Kotchen , Kotchen & Low LLP. Tata Consultancy Services, Ltd, Defendant, represented by Michelle M. LaMar -- mlamar@loeb.com -- Loeb & Loeb LLP, Bernard Robert Given, II -- bgiven@loeb.com -- Loeb & Loeb, Erin Michelle Smith -- esmith@loeb.com -- Loeb and Loeb LLP, Laura Ann Wytsma -- lwytsma@loeb.com -- Loeb & Loeb LLP, Patrick Norton Downes -- pdownes@loeb.com -- Loeb And Loeb LLP, Terry D. Garnett -- tgarnett@loeb.com -- Loeb & Loeb LLP & William Michael Brody -- wbrody@loeb.com -- Loeb & Loeb. Apple Inc., Movant, represented by Danielle Conley -- danielle.conley@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP, Kathryn Diane Zalewski -- KATHRYN.ZALEWSKI@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP, Kimberly A. Parker -- KIMBERLY.PARKER@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP & Lauren Moore -- Lauren.Moore@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP. TLC CASINO: Court Dismisses V. Williams's FCRA Suit --------------------------------------------------- The United States District Court for the District of Nevada granted Defendants' Motion to Dismiss the case captioned VALARIE WILLIAMS, Plaintiff(s), v. TLC CASINO ENTERPRISES, INC. et al., Defendant(s), Case No. 2:17-CV-2810 JCM (GWF)(D. Nev.). This is a class action brought by plaintiff and on behalf of all similarly situated individuals. The Plaintiff filed her class action complaint with jury demand. In her complaint, the plaintiff alleges that the defendant routinely, willfully and systematically violated 15 U.S.C. Section 1681b(b)(2)(A)(i) by procuring consumer reports for employment purposes of the plaintiff and other putative class members without first making proper disclosures in the format required by the Fair Credit Reporting Act (FCRA). The nexus of the defendant's motion to dismiss centers around two theories. As a threshold matter, the defendant asserts that the plaintiff lacks Article III standing because, even if the defendant failed to provide the plaintiff with a stand-alone document of a legal disclosure, at most, this amounted to a bare procedural violation of the FCRA, rather than a substantive issue. The Defendant also asserts that, even if the defendant's conditional offer of employment violated the FCRA (which the defendant does not admit), the plaintiff's claim still fails because the plaintiff does not plausibly plead any concrete harm to herself. The Plaintiff responds that the defendant's alleged violation of the FCRA regarding stand-alone documents for legal disclosures proffers standing to the plaintiff and the putative class members because deprivation of the right to information and the right to privacy guaranteed by section 1681b is sufficient to infer a concrete injury. To establish standing, the plaintiff must plead three elements: (1) an injury-in-fact; (2) a causal connection between the injury and the alleged misconduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Here, the plaintiff's complaint does not allege a concrete injury in fact. Although the plaintiff appears to rely on her conclusory statements that the defendant's alleged procedural violation caused her a concrete harm, the plaintiff fails to demonstrate how an actual or imminent concrete injury actually exists, let alone how the injury affects the plaintiff in a personal and individual way. In fact, the plaintiff's own reference to the defendant's alleged violation of the FCRA is that the defendant failed to provide the disclosure in the format required by the FCRA. A formatting error such as this is a procedural issue that does not satisfy the requirement that the plaintiff demonstrate a concrete, particularized injury. A full-text copy of the District Court's July 19, 2018 Order is available at https://tinyurl.com/yck8882p from Leagle.com. Valarie Williams, Plaintiff, represented by Christian James Gabroy, Gabroy Law Offices, Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP, Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Kaine M. Messer, Gabroy Law Offices & Mark R. Thierman, Thierman Buck, LLP. TLC Casino Enterprises, Inc., doing business as & Four Queens, LLC, doing business as, Defendants, represented by Joseph Anthony Kroeger -- jkroeger@swlaw.com -- Snell & Wilmer, pro hac vice & Paul Swenson Prior -- sprior@swlaw.com -- Snell & Wilmer. TRES AMIGOS: Flynn et al. Seek to Certify Hourly Servers Class -------------------------------------------------------------- In a lawsuit against Tres Amigos, Inc., and several entities, the Plaintiffs ask the Court to enter an order pursuant to Section 216(b) of the Fair Labor Standards Act: 1. granting conditional certification and approving a 60-day opt-in period for the following collective: "all similarly situated current and former hourly servers who work or have worked for Defendants at any time from August 6, 2015 through the date of judgment"; 2. requiring Defendants to identify all potential opt-ins within 14 days of the grant of conditional certification by providing a list in electronic and importable format, of the names, job titles, addresses, telephone numbers, e-mail addresses, dates of employment, location of employment, and date of birth, of each potential opt-in; and 3. approving the attached proposed form of notice and authorizing it to be sent by U.S. Mail and e-mail to all potential opt-in plaintiffs, along with a shortened text message notifying each individual that the notice form was mailed and emailed; and 4. sending reminder notice via email and text to be sent 40 days thereafter to anyone that did not respond. The case is captioned, KILEY FLYNN, and GLORIA TOROVECI, Individually, and on behalf of all similarly-situated individuals, the Plaintiff, v. TRES AMIGOS, INC., a domestic profit corporation, LOS TRES AMIGOS – CHELSEA, LLC, a domestic limited liability company, LOS TRES AMIGOS – HOWELL, INC, a domestic profit corporation, LOS TRES AMIGOS – JONESVILLE, LLC, a domestic limited liability company, LOS TRES AMIGOS – LIVONIA, LLC, a domestic limited liability company, LOS TRES AMIGOS – OWOSSO, LLC, a domestic limited liability company, LOS TRES AMIGOS DOWNTOWN LANSING, LLC, a domestic limited liability company, N.R.P.P., LLC, a domestic limited liability company, LOS TRES AMIGOS FARMINGTON DOWNTOWN, LLC, a domestic limited liability company, LOS TRES AMIGOS PLYMOUTH, LLC, a domestic limited liability company, REDLINE TRADING, LLC, a domestic limited liability company, LOS TRES AMIGOS SOUTH SIDE, INC., a domestic profit corporation, LOS TRES AMIGOS – CANTON, INC., a domestic profit corporation, LOS TRES AMIGOS - EAST LANSING, INC., a domestic profit corporation, HACIENDA LOS AMIGOS, INC., a domestic profit corporation, LOS TRES AMIGOS – MASON RESTAURANT, INC., a domestic profit corporation, LOS TRES AMIGOS – MASON, INC., a domestic profit corporation, LOS TRES AMIGOS – MICHIGAN CENTER, INC., a domestic profit corporation, LOS TRES AMIGOS – WEST JACKSON, INC., a domestic profit corporation, LOS TRES AMIGOS – WEST SAGINAW, INC., a domestic profit corporation, ARNULFO RAMIREZ, an individual, EDWARD HALL, an individual, and MARCOS LLAMAS, an individual, the Defendants, Case No. 2:18-cv-12426-MOB-DRG (E.D. Mich.). Attorneys for Plaintiffs: Kevin J. Stoops, Esq. Charles R. Ash IV, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, Michigan 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com crash@sommerspc.com - and - Heidi T. Sharp, Esq. Syeda F. Davidson, Esq. BURGESS SHARP & GOLDEN, PLLC 43260 Garfield Road, Suite 280 Clinton Township, MI 48038 Telephone: (586) 226 2627 E-mail: heidi@bsglawfirm.com syeda@bsglawfirm.com TRIANGLE CAPITAL: Court Denies Prelim Injunction in Securities Suit ------------------------------------------------------------------- The United States District Court of the Eastern District of North Carolina, Western Division, denied Plaintiff's Motion for Preliminary Injunction in the case captioned DAN CARLSON, Plaintiff, v. TRIANGLE CAPITAL CORPORATION, E. ASHTON POOLE, STEVEN C. LILLY, W. McCOMB DUNWOODY, MARK M. GAMBILL, BENJAMIN S. GOLDSTEIN, MARK F. MULHERN, SIMON B. RICH, JR., and GARLAND S. TUCKER, III, Defendants, No. 5:18-CV-332-FL (E.D. N.C.). The Plaintiff filed suit against Triangle Capital Corporation (Triangle) and its board members, alleging violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (Exchange Act), as amended by the Private Securities Litigation Reform Act of 1995 (PSLRA) (a) and 78t(a) respectively, and Rule 14a-9, 17 C.F.R. Section 240.14a-9, in connection with the sale of all or substantially all of defendant Triangle's assets to Benefit Street Partners L.L.C. (BSP) for approximately $981.2 million in cash. The Plaintiff filed motion for preliminary injunction, seeking to enjoin that vote until defendants disclose to shareholders material information allegedly omitted from the Proxy. Likelihood of Success on the Merits The statutory basis for the plaintiff's complaint is Section 14(a) of the Exchange Act, which makes unlawful the solicitation of a proxy regarding any security, by way of interstate commerce, in contravention of the rules and regulations prescribed by the SEC. To prevail on a Section 14(a) claim, a plaintiff must show that (1) the proxy statement contained a material misrepresentation or omission (2) that caused the plaintiff injury and that (3) the proxy solicitation was an essential link in the accomplishment of the transaction. The court addresses each of plaintiff's three allegations of material omissions in turn below. Houlihan Valuation - DCF Analysis Inputs Houlihan performed a discounted cash flow (DCF) analysis based on company projections, which indicated a value of the company of $946.4 million to $1,030.4 million. The Plaintiff's complaint alleges solely that the Proxy fails to identify which style of projections were utilized in the analysis, and whether those projections accounted for both Triangle's projected assets and expected revenues. The Plaintiff then asserts in his motion for preliminary injunction that the DCF analyses appears to have only discounted the Company's assets and not the Net investment income of approximately $41 million to $83 million in the next five years. Here, the Proxy discloses the chart of company projections, discusses the analysis conducted by Houlihan, including, among other things, summaries of its comparable companies analysis, comparable transaction analysis, and DCF. The information sought by the plaintiff is not required, and the Proxy provides a fair summary of Houlihan's valuation. In sum, the plaintiff has not established likelihood of success on the merits that the Proxy contained material omissions regarding the Houlihan valuation. Bidding Agreements - DADW Provisions The Plaintiff also challenges the alleged Proxy omissions concerning the sale process, focusing specifically on disclosures surrounding confidentiality agreements entered into with potential bidders during the strategic review process. The Plaintiff offers no factual support for the claim that the confidentiality agreements at issue may contain such clauses that could conceivably block post-signing superior proposals, other than what appears to be hypothetical speculation. The Defendants assert that plaintiff cannot offer any factual support, because the agreements at issue did not contain DADW provisions. Additionally, the numerous cases cited by plaintiff in no way assist the court in determining the instant motion, or determining whether a claim is stated, where as here there is no indication a DADW term was included in the confidential agreements and where evidence has been submitted stating otherwise, found in both the Proxy and via the defendants' declaration. In sum, the plaintiff has not established likelihood of success on the merits that the Proxy contained material omissions regarding the bidding agreements. NAV Allegations from Complaint In his complaint, the plaintiff also alleges additional omitted information regarding net asset value (NAV), but does not address these allegations in his motion for preliminary injunction. It appears that the plaintiff has abandoned this claim. To the extent the plaintiff has not, the court finds that the plaintiff has not established likelihood of success on the merits that the Proxy contained material omissions regarding NAV. Likelihood of Irreparable Harm The Plaintiff argues that no amount of money can ever compensate a stockholder who has been deprived of their ability to effectively exercise their corporate suffrage rights. The Plaintiff cites to numerous cases in support of this proposition, but those cases involved indications of false and misleading information to be submitted for vote, which is not present here. The Plaintiff offers no more, and as the defendants note, conspicuously absent from the record is an affidavit by the Plaintiff explaining how the alleged omitted disclosures would inform his vote, that he has personally read the Proxy, and that he has a fundamental understanding of the technical concepts about which he seeks further information. Accordingly, the court finds that the plaintiff has not established likelihood of irreparable harm. Balance of Equities The Plaintiff argues he only seeks an order to enjoining the Shareholder Vote until the Defendants provide Triangle Capital's shareholders with the material information identified above and that inconvenience to the defendants is minimal, thus the balance of equities weighs in the plaintiff's favor. The Defendants disagree, articulating seven reasons why a preliminary injunction on the eve of the July 24, 2018 stockholder vote would cause substantial harm to Triangle, its shareholders and employees, Barings, and BSP, including expense, lost opportunity, logistical problems, and the possibility the proposed transaction could be jeopardized. Whether or not the potential harm to the defendants is as significant as argued, plaintiff has not established the balance of equities tips in the plaintiff's favor. Public Interest The Plaintiff has not established issuance of preliminary injunction would be in the public interest. No public interest would be served by the issuance of a preliminary injunction or further disclosures containing information that is either already disclosed or not material on the eve of a long-scheduled stockholder vote. Accordingly, the court denied the plaintiff's motion. A full-text copy of the District Court's July 23, 2018 Memorandum Opinion is available at https://tinyurl.com/y8pmwtla from Leagle.com. Dan Carlson, Plaintiff, represented by Nancy Routh Meyers, Ward Black Law. Triangle Capital Corporation, E. Ashton Poole, Steven C. Lilly, W. McComb Dunwoody, Mark M. Gambill, Benjamin S. Goldstein, Mark F. Mulhern, Simon B. Rich, Jr. & Garland S. Tucker, III, Defendants, represented by Benjamin W. Pope -- wpope@kslaw.com -- King & Spalding LLP, Bradley Jason Lingo -- blingo@kslaw.com -- King & Spalding LLP & Bethany M. Rezek -- brezek@kslaw.com -- King & Spalding LLP. UFC: Antitrust Class Action Moves Into Summary Judgment Stage ------------------------------------------------------------- Paul Gift, writing for Forbes, reports that the ongoing antitrust lawsuit against the UFC moved into the summary judgment stage on July 30 with the MMA promotion filing paperwork in Las Vegas federal court claiming no reasonable jury could return a verdict for the former fighters leading the class-action case. Originally filed in December 2014, Plaintiffs claim the UFC used an anticompetitive scheme of long-term exclusive fighter contracts, coercion, and acquisitions of rival MMA promoters to establish and maintain dominance in the MMA industry and suppress fighter compensation. After three-and-a-half years of pleadings, interrogatories, affidavits, over 50 depositions, 900 pages of expert reports, 3.2 million pages of UFC documents, and 64,000 pages of Plaintiff documents produced, the UFC believes "there is no genuine dispute as to any material fact" and it should be entitled to judgment as a matter of law. The plaintiff fighters will surely have a different take on the matter and will express their opposing views in September. July 30 was the UFC's turn to make its case that the lawsuit doesn't even merit a trial. Early in the filing, the UFC noted that the Plaintiffs' initial theory of monopoly and monopsony power in MMA as "mutually reinforcing" appears to have changed, stating "After two years of discovery, in seeking class certification, Plaintiffs abandoned their monopolization theory, alleging a ‘Scheme' that makes no mention of [UFC's] alleged monopolization of the market for promotion of live Elite Professional MMA Fighter bouts." The idea that elite, professional MMA was a relevant output market to be monopolized when the UFC competes for consumers' entertainment dollars (usually) on a Saturday night was always the weakest part of the case, so while it wouldn't seem too surprising for Plaintiffs to abandon it, it could cause problems from a consumer welfare standard perspective. The UFC appeared to notice this as well by arguing that a monopsonization theory on its own "runs contrary to accepted antitrust principles." During class certification, Plaintiffs seemed to propose a new theory of consumer harm via reduced quality; i.e., that undercompensated fighters wouldn't be able to promote themselves as well or enhance their training. [GN] UNITED AIRLINES: Judge Tosses Employees' Biometrics Class Action ---------------------------------------------------------------- Diana Novak Jones, writing for Law360, reports that an Illinois federal judge on July 31 dismissed claims against United Airlines Inc. brought by a proposed class of employees under the Illinois Biometric Information Privacy Act, saying the claims are preempted by a collective bargaining agreement and don't go beyond a surface-level statutory violation. U.S. District Judge Virginia Kendall granted United's motion to dismiss the employees' suit claiming the airline's use of a fingerprint-based timekeeping system violates the Illinois privacy law. The case is Johnson v. United Airlines, Inc. et al, Case No. 1:17-cv-08858 (N.D. Ill.). The case is assigned to Judge Honorable Virginia M. Kendall. The case was filed December 8, 2017. [GN] UNITED STATES: NY Ct. Transfers Separation Suit to Calif. --------------------------------------------------------- The United States District Court for the Southern District of New York issued a Memorandum Opinion and Order transferring the case captioned N.T.C. et al., Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT et al., Defendants, No. 18-CV-6428 (JMF)(S.D.N.Y.), to the Southern District of California. This action is brought on behalf of children who were separated from their parents and are now being held in New York State. Plaintiffs in this case argue that the Government plans to detain them in facilities that do not meet applicable legal standards or to repatriate them as a family unit with their parents, thereby depriving each child of his or her ability to pursue his or her own individual asylum and other child immigrant claims. These are substantial claims, but the question right now is not whether they have merit. Instead, the question is whether they should considered in this forum or by Judge Sabraw in the Southern District of California. Having considered the parties' arguments made during a hearing held on the record on July 17, 2018, and in letters submitted the next day, and (with the parties' consent) having consulted with Judge Sabraw, the Court concludes for several reasons that Plaintiffs' claims should be transferred to the Southern District of California to be considered in conjunction with the claims in Ms. L. First, the classes in the two cases concern the same families: Plaintiffs in this case seek relief on behalf of children whose parents are class members in Ms. L. Second, the relief Plaintiffs seek in this case is, at bottom, directly related to the reunification process being supervised by Judge Sabraw. The Court is, of course, mindful of the deference that is owed to a plaintiff's choice of forum. The Court is also aware that transferring this case will cause some inconvenience to Plaintiffs and Plaintiffs' counsel, who are located in New York. Nevertheless, the Court is confident that Judge Sabraw can and will take steps to mitigate that inconvenience. And in any event, the inconvenience to Plaintiffs and Plaintiffs' counsel is vastly outweighed by the interests of justice, fairness, efficiency, and avoidance of conflict advanced by having a single judge presiding over both cases. Accordingly, pursuant to Title 28, United States Code, Section 1404(a), the Court transfers this case to the Southern District of California. A full-text copy of the District Court's July 19, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y9m6jbb5 from Leagle.com. N.T.C., by and through his net friend Rev. Marie A. Tatro, Plaintiff, represented by Scott Alan Rosenberg , The Legal Aid Society, Gregory Paul Copeland , The Legal Aid Society (Manhattan),Jennifer L. Levy , Office of The Public Advocate & Sarah Telo Gillman , The Legal Aid Society. H.M.C., by and through her next friend Mallory Winter, Plaintiff, represented by Scott Alan Rosenberg , The Legal Aid Society, Gregory Paul Copeland , The Legal Aid Society (Manhattan) &Jennifer L. Levy , Office of The Public Advocate. U.S. Immigration and Customs Enforcement, ("ICE"), U.S. Department of Homeland Security, ("DHS"), U.S. Customs and Border Protection, ("CBP"), U.S. Citizenship and Immigration Services, ("USCIS"), U.S. Department of Health and Human Services, ("HHS"), Office of Refugee Resettlement, ("ORR"), Ronald Vitiello, Acting Director of ICE, Kirstjen Nielsen, Secretary of DHS, Jefferson Beauregard Sessions III, Attorney General of the United States, L. Francis Cissna, Director of USCIS, Kevin K. McAleenan, Commissioner of CBP, Alex Azar, Secretary of the Department of Health and Human Services & Scott Lloyd, Director of the Office of Refugee Resettlement, Defendants, represented by Brandon Matthew Waterman , United States Attorney's Office & Michael James Byars , U.S. Attorney's Office. UNITED STATES: UPS Retired Employees File Class Action ------------------------------------------------------ Michael Phillis, writing for Law360, reports that three retired UPS employees filed a putative class action in Federal Claims court against the federal government on July 31, demanding fair compensation for the Treasury Department's approval of an allegedly improper reduction in their vested pension benefits affecting a proposed class of approximately 21,000. Retired UPS workers William King, Anthony Gugliuzza and Stephen Dardzinski said their multiemployer pension plan, the New York State Teamsters Conference Pension & Retirement Fund, received permission from the government to reduce vested pension benefits for thousands of its members. [GN] UNITEDHEALTH GROUP: Trujillo et al. Seek to Certify Class --------------------------------------------------------- In the lawsuit captioned DAVID TRUJILLO; DEANNA HARDEN; on behalf of themselves and all others similarly situated, the Plaintiffs, v. UNITEDHEALTH GROUP INC.; UNITED HEALTHCARE SERVICES, INC.; UNITEDHEALTHCARE INSURANCE COMPANY, the Defendants, Case No. 5:17-cv-02547-JFW-KK (C.D. Cal.), the Plaintiffs will move the Court September 17, 2018, for an order: 1. certifying a class of: "all persons covered under health plans insured or administered by United Health Group, Inc., through its wholly-owned and controlled subsidiaries, including United Healthcare Insurance Company and United Healthcare Services, Inc., issued to private employers, whose requests for prosthetic arm and leg devices have been denied during the applicable statute of limitations"; and 2. appointing them as class representative and appointing their counsel as Class Counsel. Attorneys for Plaintiffs: Robert S. Gianelli, Esq. Joshua S. Davis, Esq. Adrian J. Barrio, Esq. GIANELLI & MORRIS, A Law Corporation 550 South Hope Street, Suite 1645 Los Angeles, CA 90071 Telephone: (213) 489 1600 Facsimile: (213) 489 1611 E-mail: rob.gianelli@gmlawyers.com joshua.davis@gmlawyers.com adrian.barrio@gmlawyers.com - and - Conal Doyle, Esq. Stephen Beke, Esq. DOYLE LAW 9401 Wilshire Blvd., Suite 608 Beverly Hills, CA Telephone: (310) 385 0567 Facsimile: (310) 943 1780 E-mail: conal@conaldoylelaw.com sbeke@conaldoylelaw.com US PHYSICAL: Court Dismisses S. Reilly's Securities Fraud Suit -------------------------------------------------------------- The United States District Court for the Southern District of New York granted Defendant's Motion to Dismiss the case captioned SEAN REILLY, individually and on behalf of all others similarly situated, Plaintiff, v. U.S. PHYSICAL THERAPY, INC., CHRISTOPHER J. READING, LAWRANCE W. McAFEE, JON C. BATES, and GLENN W. McDOWELL, Defendants, No. 17 Civ. 2347 (NRB)(S.D.N.Y.). This federal securities class action was filed on behalf of all persons and entities who purchased or otherwise acquired the securities of defendant U.S. Physical Therapy, Inc. (USPH). The Plaintiffs alleged that USPH and four individual defendants, Christopher J. Reading, Lawrance W. McAfee, Glenn W. McDowell, and Jon C. Bates, violated Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 promulgated thereunder, and that the individual defendants violated Section 20(a) of the Exchange Act. The Defendants challenge only the second element of a claim under Section 10(b) and Rule 10b-5, arguing that the plaintiffs failed to allege scienter because they have neither adequately alleged that the defendants had the requisite motive and opportunity to commit securities fraud nor adequately alleged conscious recklessness. The Defendants argue that the plaintiffs failed to plead any showing of motive. The Plaintiffs respond that they have adequately pled motive based on their allegations in the SAC regarding the defendants' bonuses, stock sales, and debt covenants. Bonuses The Plaintiffs allege that under USPH's Objective Bonus Plan, defendants Reading, McAfee, and McDowell earned higher bonuses than they would have absent USPH's accounting errors. The Plaintiffs assert that these compensation packages established a direct link with the alleged fraud and therefore provide the requisite strong inference of scienter. The Plaintiffs argue that the Second Circuit precedent in Acito, Kalnit, and ECA is inapposite, and that the allegations in the complaint instead "align" with the decisions in In re Wellcare Management Group, Inc. Securities Litigation, 964 F.Supp. 632, 639 (N.D.N.Y. 1997), and Florida State Board of Administration v. Green Tree Financial Corp., 270 F.3d 645, 661 (8th Cir. 2001). The Court initially observe that neither Wellcare nor Green Tree binds this Court. To the contrary, the Court join several other courts in concluding that Wellcare's finding motive because defendants' incentive compensation increased because of their allegedly fraudulent conduct is inconsistent with the Second Circuit's decisions in Acito and its progeny. The Court's conclusion that the plaintiffs' allegations about the defendants' bonuses are deficient because they comprise motives generally possessed by most corporate directors and officers ends this analysis. Stock Sales The Plaintiffs may sufficiently plead motive where they allege that the defendants misrepresented corporate performance to inflate stock prices while they sold their own shares. The Plaintiffs allege that defendants Reading, McAfee, and McDowell sold significant portions of their stock on various occasions between the beginning of the Class Period and November 22, 2016, but do not allege that any defendant sold a single share of USPH stock after that date. The Plaintiffs assert that the timing of the defendants' stock sales was suspicious because some of these sales occurred shortly after the Company received a letter from the SEC on October 15, 2014 and throughout the period when USPH was exchanging correspondence with the SEC from October 2014 to January 2015. The Court is persuaded by the defendants' response that this correspondence never addressed the possibility of accounting for non-controlling interests as liabilities, which was only raised in the 2016-17 correspondence, and thus did not bear directly on the issues that led to USPH's restatement. The Plaintiffs next argue that the defendants' stock sales were suspicious on the basis of their amount alone. But without more, the amount of stock sold cannot be determinative. Otherwise, any corporate insider who divests his stock holdings would furnish opportunistic plaintiffs with the requisite scienter to survive a motion to dismiss. To the contrary, courts routinely find that raw sales numbers alone are insufficient to establish scienter. More fundamentally, there was nothing unusual or suspicious about the defendants' trades, even if they were relatively large, because they occurred before defendants were on notice of the SEC inquiry as to whether the Company's non-controlling interests should be accounted for as equities or liabilities. Debt Covenants The Plaintiffs' final scienter argument is based on the defendants' alleged motive to avoid violations of certain debt covenants in USPH's credit agreements. This argument clearly fails. It is well settled that a company's desire to maintain a high bond or credit rating does not qualify as a sufficient motive for fraud. The alleged motivation to maintain compliance with the covenants in the Company's credit agreements is plainly inadequate to support an allegation of intent to commit fraud. The Plaintiff's general allegations here would apply equally to any company with debt covenants in its credit agreements, and if scienter could be pleaded on that basis alone, virtually every company in the United States that experiences a downturn in stock price could be forced to defend securities fraud actions. Conscious Misbehavior and Recklessness Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater. The Plaintiffs also rely on the core operations doctrine, which provides that when a plaintiff has adequately alleged that the defendant made false or misleading statements, the fact that those statements concerned the core operations of the company supports the inference that the defendant knew or should have known the statements were false when made. The Plaintiffs concede that this doctrine may provide supplemental support but does not independently establish scienter and several courts in this Circuit have expressed doubts as to the doctrine's continuing import after the enactment of the PSLRA. The Plaintiffs next argue that the Sarbanes-Oxley (SOX) certifications signed by defendants Reading, McAfee, and Bates were probative of scienter. SOX certifications may be probative of scienter if the complaint alleges glaring accounting irregularities or other red flags, of which the certifying defendant had 'reason to know. However, these certifications typically add nothing substantial to the scienter calculus because allowing Sarbanes-Oxley certifications to create an inference of scienter in every case where there was an accounting error by a public traded company would eviscerate the pleading requirements for scienter set forth in the PSLRA. The Plaintiffs have not adequately alleged that the defendants had any knowledge of glaring accounting irregularities when they executed the SOX certifications in the Company's 10-Ks. Rather, the accounting guidance at issue here was complex, the accounting treatment of the non-controlling interests was difficult to apply, and the SEC did not raise the relevant ASC until March 2017. The Plaintiffs therefore do not adequately allege that the defendants' certifications were knowingly false when made. Accordingly, the Court grants the defendants' motion to dismiss in its entirety with prejudice. A full-text copy of the District Court's July 23, 2018 Memorandum and Order is available at https://tinyurl.com/yages5jn from Leagle.com. SEAN REILLY, Lead Plaintiff, represented by Jacob A. Goldberg -- jgoldberg@rosenlegal.com -- The Rosen Law Firm, P.A., Keith Robert Lorenze -- klorenze@rosenlegal.com -- The Rosen Law Firm, P.A. & Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A. Maura Culhane, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. U.S. Physical Therapy, Inc., Christopher J. Reading, Lawrance W. McAfee & Jon C. Bates, Defendants, represented by Jason Christopher Vigna -- jason.vigna@kattenlaw.com -- Katten Muchin Rosenman, LLP, Bruce G. Vanyo -- bruce@kattenlaw.com -- Katten Muchin Rosenman, LLP & Michael Joseph Diver -- michael.diver@kattenlaw.com -- Katten Muchin Rosenman LLP. Glenn McDowell, Defendant, represented by Jason Christopher Vigna -- jason.vigna@kattenlaw.com -- Katten Muchin Rosenman, LLP & Bruce G. Vanyo -- bruce@kattenlaw.com -- Katten Muchin Rosenman, LLP. VALLEY GYM CORPORATION: Has Made Unsolicited Calls, Suit Claims --------------------------------------------------------------- HARO BEZDIKIAN, individually and on behalf of all other similarly situated individuals, Plaintiff vs. VALLEY GYM CORPORATION; TEXTMUNICATION, INC., and DOES 1 through 25, Defendants, Case No. 3:18-cv-04372-SK (N.D. Cal. July 18, 2018), alleges that the Defendants have violated the Telephone Consumers Protection Act by sending unsolicited text messages without prior express written consent, invading the consumers' right to privacy. Valley Gym Corporation is a California corporation doing business as "USA Fitness Center" or "USA Fitness" with a principal place of business located at 13640 Foothill Boulevard, Sylmar, California 91342. [BN] The Plaintiff is represented by: Michael H. Boyamian, Esq. Armand R. Kizirian, Esq. BOYAMIAN LAW, INC. 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203-1922 Telephone: (818) 547-5300 Facsimile: (818) 547-5678 E-mail: michael@boyamianlaw.com armand@boyamianlaw.com VEECO INSTRUMENTS: Pension Fund Balks at Ultratech Merger Deal -------------------------------------------------------------- CONSTRUCTION WORKERS PENSION TRUST FUND - LAKE COUNTY AND VICINITY, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. VEECO INSTRUMENTS, INC., SHUBHAM MAHESHWARI, JOHN R. PEELER, JOHN P. KIERNAN, KATHLEEN A. BAYLESS, RICHARD A. D'AMORE, GORDON HUNTER, KEITH D. JACKSON, PETER J. SIMONE, THOMAS ST. DENNIS and DOES 1-25, inclusive, the Defendants, Case No. 18CV332644 (Cal. Super. Ct., Aug. 8, 2018), asserts claims under the Securities Act of 1933 against Veeco and certain members of the Company's executive officers, directors and authorized representatives. The case is a securities class action on behalf of all persons and entities who purchased or acquired shares of Veeco stock pursuant or traceable to the Company's Registration Statement and Prospectus issued in connection with the merger of Veeco with Ultratech, Inc. and their subsidiaries. Pursuant to the Merger Agreement, Ultratech shareholders received the right to receive, for each Ultratech share they owned, an amount equal to: (i) $21.75 in cash without interest; (ii) 0.2675 of a share of Veeco stock; and (iii) cash in lieu of fractional shares of Veeco common stock. Ultratech held a special meeting of its stockholders to vote on matters related to the proposed merger. The special meeting was held on May 25, 2017, at 2:00 p.m., local time, at the offices of O'Melveny & Myers LLP, located at 2765 Sand Hill Road, Menlo Park, California 94025. To solicit Ultratech shareholders to vote in favor of the Merger, Veeco and the Individual Defendants prepared, reviewed and signed a Registration Statement on Form S-4 with the SEC on March 13, 2017 and an Amendment to the S-4 Registration Statement on April 21, 2017. The lawsuit contends that the Offering Documents were false and misleading because they failed to disclose Veeco's intellectual property dispute with AMEC. In addition to omitting this material information, the "Risk Factors" portion of the Prospectus was false and misleading because it did not disclose the dispute and instead only listed two shareholder lawsuits against Ultratech as legal risks. Veeco is a corporation which designs and manufactures thin film equipment. Veeco's equipment is used to make electronic devices, including light emitting diodes, micro-electromechanical systems, wireless devices, power electronics, hard disk drives and semiconductor devices.[BN] Attorneys for Plaintiff: James I. Jaconette, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231 1058 Facsimile: (619) 231 7423 – and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11743 Telephone: (631) 367 7100 Facsimile: (631) 367 1173 VISA INC: Deal Reached to Resolve Damages Class in Interchange MDL ------------------------------------------------------------------ Visa Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on July 27, 2018, for the fiscal year ended February 28, 2018, that defendants Visa, MasterCard, and certain U.S. financial institutions have reached an agreement in principle with plaintiffs purporting to act on behalf of the putative Damages Class to resolve all Damages Class claims in Interchange Multidistrict Litigation (MDL). The agreement to resolve these claims is subject to negotiation of a full written settlement agreement, and such negotiations are ongoing. Discussions with plaintiffs purporting to act on behalf of the Injunctive Relief Class are ongoing. The Company believes at this stage that some loss resulting from the Damages Class claims is probable and a range of loss is reasonably estimable. On June 28, 2018, the Company deposited an additional $600 million into its covered litigation escrow account. During the nine months ended June 30, 2018, the Company increased the U.S. covered litigation accrual to $1.43 billion. The balance of $1.43 billion is consistent with the Company's estimate of its share of the lower end of a probable and reasonably estimable loss with respect to U.S. covered litigation. While this estimate is consistent with the Company's view of the current status of discussions, the probable and reasonably estimable loss or range of such loss could materially vary if settlements cannot be reached. The Company will continue to consider and reevaluate this estimate in light of the substantial uncertainties and mediation obstacles that persist. The Company is unable to estimate a potential loss or range of loss, if any, at trial if negotiated resolutions cannot be reached. Visa Inc. operates as a payments technology company worldwide. The company facilitates commerce through the transfer of value and information among consumers, merchants, financial institutions, businesses, strategic partners, and government entities. Visa Inc. was incorporated in 2007 and is headquartered in San Francisco, California. WAL-MART STORES: 9th Cir. Vacates Dismissal of M. Omidi's UCL Suit ------------------------------------------------------------------ The United States Court of Appeals, Ninth Circuit, reversed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned MOJDEH OMIDI, individually and as representatives of the class and AURORA TELLERIA, individually and as representatives of the class, Plaintiffs-Appellants, v. WAL-MART STORES, INC., a Delaware corporation and FIRSTSIGHT VISION SERVICES, INC., a California corporation, Defendants-Appellees, No. 17-55539 (9th Cir.). The District Court dismissed the complaint for lack of standing, concluding that Omidi failed to establish an economic injury in fact. Wal-Mart and FirstSight advertise the availability of Independent Doctors of Optometry at Wal-Mart, and Omidi claims that this representation induced her to purchase an eye exam at a San Diego-area location from Dr. Ho. Omidi's complaint alleges that Dr. Ho was not "independent" as advertised, and that she would not have purchased the eye exam if she had known this. To establish standing under Article III, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The key question in this case is whether Omidi has adequately alleged that her optometrist lacked independence. The complaint lacks specific allegations about Dr. Ho, and instead points to various lease provisions indicating that Wal-Mart and FirstSight were able to exercise undue influence over all of their resident optometrists. These provisions include: setting rent as a percentage of revenue, prescribing minimum operating hours, and permitting the lessor to terminate leases at will. In addition, the complaint contains several anecdotes concerning other optometrists at other Wal-Mart locations, all of which suggest that Dr. Ho was constrained in the rates he could charge and the therapies he could recommend. Injury in fact is not a substantial or insurmountable hurdle and the complaint's allegations are sufficient to raise Omidi's claimed injury paying for an eye exam that she would not have purchased had she known Dr. Ho was not findependent above the conjectural or hypothetical level. Because this injury is fairly traceable to the misleading advertisements and is likely to be redressed by a favorable judicial decision, Omidi has established standing under Article III and the relevant state statutes. The judgment of the District Court is vacated in part, reversed in part, and remanded for consideration under Federal Rules of Civil Procedure 12(b)(6) and 9(b). A full-text copy of the Ninth Circuit's July 23, 2018 Memorandum is available at https://tinyurl.com/y86764jy from Leagle.com. WARTBURG SENIOR: Website Not Accessible to Blind, Sypert Says ------------------------------------------------------------- KATHLEEN SYPERT, on behalf of herself and all others similarly situated, the Plaintiffs, v. WARTBURG SENIOR HOUSING, INC., the Defendant, the Case No. 1:18-cv-07159 (S.D.N.Y., Aug. 8, 2018), alleges that Defendant failed to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually impaired people. According to the complaint, Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of Plaintiff's rights under the Americans with Disabilities Act and the Fair Housing Act. The Plaintiff is a visually impaired and legally blind person who requires screen-reading software to read website content using her computer. Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. Because Defendant's website, www.wartburg.org, is not equally accessible to blind and visually-impaired consumers, it violates the ADA and the FHA. The Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, N.Y. 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, N.Y. 10003-2461 Telephone: (212) 228 9795 Facsimile: (212) 982 6284 E-mail: nyjg@aol.com danalgottlieb@aol.com WASTE INDUSTRIES: Fails to Pay OT to Drivers, Bruce Claims ---------------------------------------------------------- KEITH BRUCE, individually and on behalf of all others similarly situated, Plaintiff v. WASTE INDUSTRIES, LLC, Defendant, Case No. 3:18-cv-00688 (M.D. Tenn., July 25, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Bruce was employed by the Defendant as driver. Waste Industries, LLC is a North Carolina limited liability company doing business in the State of Tennessee. [BN] The Plaintiff is represented by: Brian C. Winfrey, Esq. MORGAN & MORGAN, P.A. 810 Broadway, Suite 105 Nashville, TN 37203 Telephone: (615) 928-9890 Facsimile: (615) 928-9917 E-mail: bwinfrey@forthepeople.com - and - Clif Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com - and - C. Ryan Morgan, Esq. MORGAN & MORGAN, P.A. P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 867-4791 E-mail: rmorgan@forthepeople.com - and - Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) 327-5352 Facsimile: (954) 327-3017 E-mail: pbotros@forthepeople.com WELLS FARGO: Judge Refuses to Vacate Arbitrator's Findings ---------------------------------------------------------- Braden Campbell, writing for Law360, reports that a New York federal judge on July 31 rejected Wells Fargo Advisors LLC's challenge to an arbitrator's decision letting workers pursue class arbitration of their unpaid overtime claims, calling the company out for trying to escape the same binding proceedings it imposes on its employees. U.S. District Judge Valerie Caproni refused to vacate an arbitrator's findings that language in two workers' contracts with Wells Fargo lets them bring their claims on behalf of a class. The case is Wells Fargo Advisors, LLC v. Sappington, et al, Case No. 1:16-cv-08956 (S.D.N.Y.). The case is assigned to Judge Valerie E. Caproni. The case was filed November 17, 2016. [GN] WESTERN EXPRESS: Rivera Suit Moved to Central Dist. of California ----------------------------------------------------------------- Marc Rivera, individually, and on behalf of others similarly situated, the Plaintiff, v. Western Express Inc., a Tennessee Corporation dba Western Express Transport of California Inc., and DOES 1 through 10, the Defendant, Case No. CIVDS1811980, as removed from the San Bernardino Superior Court, to the US District Court for the Central District of California (Eastern Division - Riverside) on Aug. 3, 2018. The Central District of California Court Clerk assigned Case No. 5:18-cv-01633 to the proceeding. Western Express, Inc. is an asset-based truckload carrier, founded in 1991 by Donna and Wayne Wise.[BN] The Plaintiff appears pro se. WILLIAM SONOMA: Faces Rushing Suit in N.D. California ----------------------------------------------------- A class action lawsuit has been filed against William-Sonoma, Inc. The case is captioned as, William Rushing, individually and on behalf of all others similarly situated, Plaintiff v. William-Sonoma, Inc.; William Sonoma DTC, Inc.; William Sonoma Advertising, Inc.; The Pond Lady, LLC, Defendants, Case No. 4:18-MC-80122-DMR (N.D. Cal., July 18, 2018). The case is assigned to Magistrate Judge Donna M. Ryu. Williams-Sonoma, Inc. operates as a multi-channel specialty retailer of various products for home. Williams-Sonoma, Inc. was founded in 1956 and is headquartered in San Francisco, California. [BN] The Plaintiff is represented by: Amber Eck, Esq. ZELDES HAEGGQUIST & ECK - SAN DIEGO 225 Broadway, Suite 2050 San Diego, CA 92101 Telephone: (619) 342-8000 - and - Audra Petrolle, Esq. ROSE LAW GROUP, PC – AZ 7144 E. Stetson Drive, Suite 300 Scottsdale, AZ 85251 Telephone: (480) 505-3936 - and - George Richard Baker, Esq. BAKER LAW PC 625 E. Main Street, Suite 102 B Aspen, CO 81611 Telephone: (970) 439-5905 E-mail: richard@bakerlawpc.com - and - Kathryn Honecker, Esq. ROSE LAW GROUP, PC 7144 East Stetson Drive, Suite 300 Scottsdale, AZ 85251 Telephone: (480) 505-3936 Facsimile: (480) 505-3925 E-mail: khonecker@roselawgroup.com The Defendants are represented by: Benjamin O. Aigboboh, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP 1901 Avenue of the Stars, Suite 1600 Los Angeles, CA 90067 Telephone: (310) 228-3700 - and - Eric J. DiIulio, Esq. Robert A. Guite, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111-4109 Telephone: (415) 434-9100 Facsimile: (415) 434-3947 - and - P. Craig Cardon, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Fl. San Francisco, CA 94111 Telephone: (415) 774-2967 E-mail: ccardon@sheppardmullin.com - and - Tanya Yarbrough Bowman, Esq. FROST BROWN TODD LLC 400 W. Market Street, Suite 3200 Louisville, KY 40202 Telephone: (502) 589-5400 Facsimile: (502) 581-1087 E-mail: tbowman@fbtlaw.com WINNIPEG BALLET: Faces Class Action Over Monk Abuse Allegations --------------------------------------------------------------- Dance News Desk, citing Macleans, reports that a certified class-action lawsuit has been filed against the Winnipeg Ballet. Dancers allege teacher and photographer Bruce Monk pressured dancers to post half-clothes or nude for photos between 1984 and 2015. Macleans reports the stories form a patter in which dancers were told they would be posing for headshots or portfolios but were then coerced into posing in states of undress. Dancers also claim the photos, meant to be kept private, were made for sale online. Macleans writes that in his statement of defence, Monk denies all the allegations, which have not proven in court. More than 60 women, all former dancers, have joined the class-action seeking 75 million in damages from Monk and the Winnipeg Ballet. Founded in 1939, Canada's Royal Winnipeg Ballet holds the double distinction of being Canada's premiere ballet company and one of the oldest ballet companies in North America. Versatility, technical excellence and a captivating style are the trademarks of Canada's Royal Winnipeg Ballet, qualities that have garnered both critical and audience acclaim. RWB's superlative standards keep the Company in demand around the globe as it presents more than 150 performances every season across Canada and in the United States, South America, Europe, the Middle East, Russia, Japan, Asia and Mexico. Under the artistic direction of André Lewis for 18 years, the Company is said to have never looked more resplendent, more assured, and more ravishing. [GN] ZUFFA LLC: Seeks Dismissal of UFC Fighters' Antitrust Case ---------------------------------------------------------- Christopher Crosby, writing for Law360, reports that UFC's parent company urged a Nevada federal court on July 30 to end an antitrust suit lodged by a proposed class of mixed martial arts fighters who accuse the organization of pushing out rival promoters and stifling wages, saying fighters' wages are increasing and there's no evidence that competitors are being shut out. The company, Zuffa LLC, asked the court to grant its bid for summary judgment against fighters who say the UFC unfairly controls the MMA market by systematically pushing out rival promoters. The case is styled Le et al v. Zuffa, LLC, Case No. 2:15-cv-01045. The case is assigned to Judge Richard F. Boulware, II. The case was filed June 3, 2015. [GN] [*] U.K. Truckers' Trade Association Files Cartel Class Action -------------------------------------------------------------- Christopher Crosby, writing for Law360, reports that a trade association of United Kingdom truckers on July 31 said it's the best candidate to represent hundreds of thousands of drivers bilked by producers in a price-fixing cartel and suggested consumers collectively could reap GBP30 billion ($39.37 billion). The Road Haulage Association said it's applied to represent some 600,000 truck drivers in collective proceedings before the U.K.'s Competition Appeal Tribunal. If successful, consumers could reap GBP6,000 for every 6-ton and above vehicle bought or leased from certain truck producers in the U.K. between 1997 and 2011. [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. 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