/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180822.mbx C L A S S A C T I O N R E P O R T E R Wednesday, August 22, 2018, Vol. 20, No. 168 Headlines 3M CO: 70 Suits Related to Aqueous Film Forming Foam Underway 3M CO: Obtains Favorable Jury Verdict in Bair Hugger Suit A&R LOGISTICS: Tuff Sues over Background Checks A+ STUDENT: Faces McBride Suit in Eastern Dist. of Virginia ACTION FINANCIAL: Faces Joseph Suit in Eastern Dist. of New York AFNI INC: Faces Hallmon Suit in Eastern District of California ALPHA RECOVERY: Faces Gracius Suit in Eastern Dist. of New York AMERICAN CORADIUS: Catherina Faust Sues in E.D. New York AMERICAN CORADIUS: Faces Mezzo Suit in District of New Jersey AMERICAN CORADIUS: Slater Sues over Debt Collections Practices APPLIED MEDICAL: Burris Suit Alleges FLSA Violation ARC MANAGEMENT: Faces Gonzalez Suit in Eastern Dist. of New York ARCADIA RECOVERY: Faces Wade Suit in Eastern District of New York ARSTRAT LLC: Faces Baez Suit in Eastern District of New York BARKBOX INC: Faces Kiler Suit in Eastern District of New York BHC SERVICES: Jalissa Green Seeks Overtime Pay under FLSA BIG CITY: N.Y. App. Div. Affirms Dismissal of T. Maddicks' Suit BNR THE BRIDGE: Hernandez Suit Moved to Western Dist. of Michigan BRYANT HEATING: Vullings Says Evolution System Furnace Defective CARELINK INC: Court Conditionally Certifies Workers' Class CHARISSE & CHRISTINE: Rosario Seeks Unpaid Wages under FLSA CHESAPEAKE OPERATING: Nichols Appeals 10th Cir. Ruling CHICAGO ATHLETIC: Gramelspacher Sues over Gym Membership Program CHIPOTLE MEXICAN: Awaits Court OK on Bid to Drop Kelley Suit CHIPOTLE MEXICAN: Credit Unions' Consolidated Suit Ongoing CHIPOTLE MEXICAN: Gordon and Lawson/Conard Suits Underway CHIPOTLE MEXICAN: Ong's Bid to File 3rd Amended Complaint Pending CLEVELAND INTEGRITY: Kole Seeks Overtime Pay under FLSA COAST TO COAST: Faces Gandy Suit in Northern Dist. of Georgia COCA-COLA CO: Ct. Denies Class Certification in Gold Peak Tea Suit COLGATE PALMOLIVE: ERISA Class Action Underway in New York COMMUNITY HEALTH: Appeal in Gibson Class Action Pending COMMUNITY HEALTH: Awaiting Approval of Mounce Case Settlement COMMUNITY HEALTH: Bid to Dismiss Zwick Partners Suit Denied COMMUNITY HEALTH: Petition for Writ of Certiorari Still Pending CONSTELLATION ENERGY: Court Dismisses M. Coda's Overcharging Suit COVANCE INC: Daniel Bloomquist Wage-and-Hour Action Underway COVANCE MARKET: Sealock Suit Wins Conditional Class Certification CSC SERVICEWORKS: Faces MJM Visions' Suit in E.D. New York CUBESMART LP: Court Approves New Jersey Case Settlement DENKA PERFORMANCE: Court Dismisses Chloroprene Emissions Suit DEVONWOOD CORP: Fails to Pay Minimum Wage Rate, Zhanpiessova Says DOLGEN LLC: E. Fielding's ERISA Claim Must Go to Arbitration DOMINION ENERGY: Appeals Order in Metzler Asset Suit to 4th Cir. ECLINICAL WORKS: Fails to Secure Healthcare Records, Tot Claims EDISON BALLROOM: Faces Bishop Suit in S.D. New York EXPEDIA GROUP: Bid to Compel Arbitration Granted in Orbitz Suit EXPEDIA GROUP: Buckeye Tree et al. File Renewed Class Cert. Motion FIFTH THIRD: Seldomridge Sues for Service-to-Solutions Staff Wages FINANCE SYSTEM: Faces Sandri Suit in E.D. Wisconsin FIRST HAWAIIAN: Unit Still Defends Overdraft Fee-Related Suit FIRST SOLAR: Smilovits Class Action Still Ongoing FLARE ENERGY: Saunders Seeks Overtime Wages under FLSA FRANKLIN RESOURCES: Fernandez-Cryer Consolidated Suit Ongoing GENERAL ELECTRIC: Bid to Dismiss 401(k) Plan Suit Underway GENERAL ELECTRIC: Securities Suit Filed in New York State Court GENERAL ELECTRIC: Sjunde AP-Fonden Class Suit in New York Ongoing GENERAL MOTORS: Faces Davis Suit in Northern District of Alabama HALIBURTON ENERGY: Court Grants Arbitration in Wage & Hour Suit HALLIBURTON CO: Bid to Dismiss Amended Magruder Class Suit Pending INTEL CORP: At Least 49 Class Suits Filed over PC Security Flaws INTEL CORP: McAfee Shareholders Seek to Amend Complaint JB HUNT: Continues to Defend California-Based Drivers' Suits JM SMUCKER: Faces Robinson Suit for Deceptive Marketing KAPSTONE PAPER: Rosenblatt Balks at Merger Deal with Westrock KLEENMARK SERVICES: Class Deal in H. Marroquin's Suit Has Final OK KOHL'S CORPORATION: Urias Suit Asserts TCPA Violation LABORATORY CORP: Appeal in Patty Davis Suit Still Pending LABORATORY CORP: Bid to Dismiss Sequenom Shareholders Suit Pending LABORATORY CORP: Consolidation of Bouffard & Anderson Cases Sought LABORATORY CORP: Cunningham Class Action Underway LABORATORY CORP: Settlement in Principle Reached in Sandusky Suit LABORATORY CORP: Still Defends Maria Gonzalez Class Action LANSING TRADE: Budicak Files Antitrust Class Action in Illinois LIBERTY MUTUAL: Richelson Suit Moved to Northern District of Ohio LOS ANGELES, CA: Certification of Vehicle Owners Class Sought LOS ANGELES, CA: Vandenberg Seeks to Recover OT Pay Under FLSA LOS LUNAS: Must Produce Info on Non-Jackson Class Members MAGELLAN HEALTH: Court Denies Bid to Dismiss M. Deakin's FLSA Suit MALDEN TOWERS: Hsueh Sues over Tenants' Security Deposits MARK PROPCO: Cedric Bishop Sues Mark Hotel in S.D. New York MASTERCARD INC: Accrues $947M Liability in Interchange Fees Suit MASTERCARD INC: Class Cert. Bid Nixed in Shift Fraud Liability Case MASTERCARD INC: Complaints on ATM Surcharge Rule Still Ongoing MASTERCARD INC: Florida Court Shelves Junk Fax Suit MASTERCARD INC: Still Awaits Court OK on Canadian POS Case Accord MATHERNE HOLDINGS: Gerstenhaber Seeks to Certify Class MDL 2741: King et al. vs Monsanto Consolidated in N.D. Calif. MDL 2827: Donahoe Suit over iPhone Performance Moved to N.D. Calif. METROPOLITAN PAINTING: Galeano Suit to Recover OT Pay Under FLSA MICROSOFT CORP: Certification in Sex Discrimination Suit Denied MINNESOTA: 8th Cir. Affirms Ruling in Suit Over METO NORDSTROM INC: Miller Files Suit for Invasion of Privacy NORTH CAROLINA HEALTH: Hawkins Class Cert. Bid Granted in Part NRI USA: Seeks 9th Circuit Review of Decision in Garcia Suit OCWEN FINANCIAL: Still Defends McWhorter Class Action OCWEN FINANCIAL: TCPA Class Action in Illinois Underway ONONDAGA COUNTY, NY: Denial of Class Certification Reversed PAPA JOHN'S: Burnham Suit Seeks to Recover Unpaid Wages PHILIP MORRIS: 11 Smoking & Health Class Suits as of July 24 PHILIP MORRIS: Affiliate Continues to Defend Ringer Suit in Israel PHILIP MORRIS: Appeals in Smoker Health Defense Suit Still Pending PHILIP MORRIS: Continues to Defend "Bourassa" Class Suit in Canada PHILIP MORRIS: No Actions Taken in "Jacklin" Class Action PHILIP MORRIS: Preliminary Motions in Adams Suit Still Pending PHILIP MORRIS: Unit Continues to Defend Blais Suit in Canada PHILIP MORRIS: Unit Still Defends Brazil Public Prosecutor's Suit PHILIP MORRIS: Unit Still Defends Letourneau Suit in Canada PLAZA SERVICES: Faces Forbes Suit in Eastern District of Virginia POLAR TECH: Cameron Sues over Collection of Biometric Data PORTFOLIO RECOVERY: Summary Judgment OK'd in FDCPA Suit PORTLAND GENERAL: Appeal in Trojan Class Action Still Pending PROFESSIONAL MEDICAL: Sanders Settlement Class Okayed PROSPECT CHARTERCARE: Faces Suit Over Retirement Plan Mismanagement RAYMOURS FURNITURE: E. Manopla's Suit Moved to N.D.N.Y. RECHNITZ CORE: Faces Roan Suit for Underfunding Nursing Facility REGIONAL MEDICAL: Sued by Sandusky for Sending Unsolicited Faxes RESEARCH TRIANGLE: Faces Souders Suit Alleging TCPA Violation RESEARCH TRIANGLE: Souders Files Suit for Invasion of Privacy RICHANI RESTAURANT: Coleman Suit Seeks to Recover Unpaid Wages ROYALTON 44: Cedric Bishop Sues Royalton Hotel in New York RS&H INC: Jones Appeals M.D. Florida Ruling to 11th Circuit SAMSUNG ELECTRONICS: Tobin Sues over Design Defect of LED TVs SANTANDER CONSUMER: Court Denies Bids to Intervene in Speedpay Suit SANYO ENERGY: Sells Defective Photovoltaic Modules, Dickert Says SH GROUP: Faces Cedric Bishop Suit in New York Southern District SMITH TRANSPORT: Jerome Ratliff Sues over Background Checks SQUARETRADE INC: Swinton Seeks to Certify Settlement Class STAR CAREER: Final Judgment in NJCFA Suit Partly Reversed STATE UNIVERSITY: Court Narrows Claims in Sex Discrimination Suit STUDENT HELP: Bontrager Suit Alleges TCPA Violation SURVEY SAMPLING: Zozula Class Suit Asserts TCPA Breach SYNCHRONY FINANCIAL: Michael Kincaid's TCPA Suit Concluded THORLO INC: Website Not Accessible to Blind, Marett Says TOLL GLOBAL: 9th Circuit Appeal Filed in Marquez Class Suit TRANSNATIONAL FOODS: Young Files Suit Asserting Deceptive Marketing TURN-KEY SOLUTIONS: Martinez Sues to Recover OT Pay Under FLSA UBER TECHNOLOGIES: Ct. to Review Ruling on Lyft Drivers' UCL Claim UNITED STATES: Court Denies Final OK of Settlement in FAMs' Suit UNITED STATES: Federal Circuit Appeal Filed in Charleston Suit VAN RU CREDIT: Norton Files Placeholder Class Certification Bid VEECO INSTRUMENTS: Iron Workers Fund Files Securities Suit in Ca. WAL-MART STORES: Move to Deny Managers Class Certification Junked WECONNECT INC: 7th Cir. Affirms Arbitration Denial in Worker's Suit WELSPUN PIPES: Vines and Lewis Seek Overtime Pay under FLSA WOMEN'S NATIONAL: Faces Bishop Suit in Southern Dist. of New York ********* 3M CO: 70 Suits Related to Aqueous Film Forming Foam Underway ------------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company is facing 70 putative class action and other lawsuits in connection to its Aqueous Film Forming Foam products. 3M manufactured and marketed Aqueous Film Forming Foam (AFFF) for use in firefighting at airports and military bases from approximately 1963 to 2000. As of June 30, 2018, 70 putative class action and other lawsuits have been filed against 3M and other defendants in various state and federal courts in Colorado, Delaware, Florida, Massachusetts, New York, Pennsylvania, and Washington where current or former airports or military bases are or were located. In these cases, plaintiffs typically allege that certain PFAS used in AFFF contaminated the soil and groundwater where AFFF was used and seek damages for loss of use and enjoyment of properties, diminished property values, investigation costs, remediation costs, and in some cases, funds for medical monitoring. Several companies have been sued along with 3M, including Ansul Co. (acquired by Tyco, Inc.), Angus Fire, Buckeye Fire Protection Co., Chemguard, National Foam, Inc., and United Technologies Corp. 3M Company operates as a diversified technology company worldwide. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M CO: Obtains Favorable Jury Verdict in Bair Hugger Suit --------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that a jury has returned a unanimous verdict in 3M's favor finding that the Bair Hugger(TM) patient warming system was not defective and was not the cause of a plaintiff's injury. As of June 30, 2018, the Company is a named defendant in lawsuits involving approximately 4,626 plaintiffs (compared to approximately 4,270 plaintiffs at December 31, 2017), most of which are pending in federal court in Minnesota, in which the plaintiffs claim they underwent various joint arthroplasty, cardiovascular, and other surgeries and later developed surgical site infections due to the use of the Bair Hugger(TM) patient warming system (the Bair Hugger(TM) product line was acquired by 3M as part of the 2010 acquisition of Arizant, Inc., a leading manufacturer of patient warming solutions designed to prevent hypothermia and maintain normal body temperature in surgical settings). The complaints seek damages and other relief based on theories of strict liability, negligence, breach of express and implied warranties, failure to warn, design and manufacturing defect, fraudulent and/or negligent misrepresentation/concealment, unjust enrichment, and violations of various state consumer fraud, deceptive or unlawful trade practices and/or false advertising acts. One case, from the U.S. District Court for the Western District of Tennessee is a putative nationwide class action. The U.S. Judicial Panel on Multidistrict Litigation (MDL) granted the plaintiffs' motion to transfer and consolidate all cases pending in federal courts to the U.S. District Court for the District of Minnesota to be managed in a multi-district proceeding during the pre-trial phase of the litigation. In 2017, the U.S. District Court and the Minnesota state courts denied the plaintiffs' motions to amend their complaints to add claims for punitive damages. At a joint hearing before the U.S. District Court and the Minnesota State court, on the parties' motion to exclude each other's experts, and 3M's motion for summary judgment with respect to general causation, the federal court did not exclude the plaintiffs' experts and denied 3M's motion for summary judgment on general causation. In January 2018, the state court, in hearing the same arguments, excluded plaintiffs' experts and granted 3M's motion for summary judgment on general causation, dismissing all 61 cases pending before the state court in Minnesota. Plaintiffs have appealed that ruling and the state court's punitive damages ruling. In April 2018, the federal court partially granted 3M's motion for summary judgment in the first bellwether case, leaving for trial a claim for strict liability based upon design defect. The court dismissed the plaintiff's claims for negligence, failure to warn, and common law and statutory fraud. In the trial of the first bellwether case in May 2018, the jury returned a unanimous verdict in 3M's favor finding that the Bair Hugger(TM) patient warming system was not defective and was not the cause of the plaintiff's injury. 3M Company operates as a diversified technology company worldwide. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. A&R LOGISTICS: Tuff Sues over Background Checks ----------------------------------------------- JEROME RA TUFF JR., individually and on behalf of all others similarly situated, the Plaintiff, v. A&R LOGISTICS, INC., an Illinois corporation, the Defendant, Case No. 2018CH10034 (Ill. Cir. Ct., Cook Cty., Aug. 7, 2018), alleges that Defendant has continually failed to follow reasonable procedures to ensure that Plaintiff and the Class members are provided with their statutorily mandated right to the information contained in their consumer reports. According to the complaint, A&R is a self-proclaimed leader in the trucking and transportation industry. Seeking to expand its fleet, A&R encourages consumers to apply for driving positions by visiting its website and completing an online application. As part of its hiring process, A&R pulls applicants' background reports from HireRight, LLC -- a leading pre-employment screening provider -- to identify, among other things, their names, social security numbers, dates of birth, previous employers, work records, and trucking accident or incident histories. Using the information contained in these reports, A&R then decides whether to continue the hiring process or not. Given the impact that these reports have on an individual's access to employment, Congress enacted the Fair Credit Reporting Act, 15 U.S.C. sections 1681, et seq., specifically to protect consumers from the ill effects of erroneous credit reporting and provide them with a means of ensuring that the information being distributed about them is accurate, appropriate, and updated. As a result of Defendant's conduct described herein and its knowing and willful violations of 15 U.S.C. section 1681b(b)(3)(B), Plaintiff and the Class have suffered harm, including information injury, violation of privacy, and unfairly being denied access to employment. A&R Logistics, Inc., doing business as A&R Transport, Inc., provides dry bulk transportation, warehousing and packaging, distribution, and third-party logistics solutions.[BN] The Plaintiff is represented by: Adam C. York, Esq. Michael Aschenbrener, Esq. KAMBERLAW LLC 220 N Green St Chicago, IL 60607 Telephone: (212) 920 3072 Facsimile: (212) 202 6364 E-mail: ayork@kamberlaw.com asch@kamberlaw.com A+ STUDENT: Faces McBride Suit in Eastern Dist. of Virginia ----------------------------------------------------------- A class action lawsuit has been filed against A+ Student Staffing, Inc. The case is captioned as Robert A. McBride, Individually and on behalf of all others similarly situated, the Plaintiff, v. A+ Student Staffing, Inc. and ETC Institute, the Defendants, Case No. 2:18-cv-00424-RAJ-DEM (E.D. Va., Aug. 7, 2018). The case is assigned to the Hon. Judge Raymond A. Jackson. A+ Student Staffing is a staffing agency that places college students in part-time office jobs.[BN] The Plaintiff is represented by: Andrew Joseph Guzzo, Esq. Kristi Cahoon Kelly KELLY & CRANDALL PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Telephone: (703) 424 7576 Facsimile: (703) 591 0167 E-mail: aguzzo@kellyandcrandall.com kkelly@kellyandcrandall.com - and - Craig Carley Marchiando, Esq. Elizabeth W. Hanes, Esq. Leonard Anthony Bennett, Esq. CONSUMER LITIGATION ASSOCIATES 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Telephone: (757) 930 3660 Facsimile: (757) 930 3662 E-mail: craig@clalegal.com elizabeth@clalegal.com lenbennett@clalegal.com ACTION FINANCIAL: Faces Joseph Suit in Eastern Dist. of New York ---------------------------------------------------------------- A class action lawsuit has been filed against Action Financial Services, LLC. The case is captioned as Judeline S. Joseph, individually and on behalf of all others similarly situated, the Plaintiff, v. Action Financial Services, LLC, the Defendant, Case No. 1:18-cv-04457 (E.D.N.Y., Aug. 7, 2018). AFS has been providing professional debt collection services since 2009.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com AFNI INC: Faces Hallmon Suit in Eastern District of California -------------------------------------------------------------- A class action lawsuit has been filed against Afni, Inc. The case is captioned as Sonja Hallmon, individually and on behalf of all others similarly situated, the Plaintiff, v. Afni, Inc. and John Does 1-25, the Defendants, Case No. 1:18-at-00566 (E.D. Cal., Aug. 7, 2018). The Defendant offers channel strategies and customer lifecycle solutions to connect with their customers for many reasons.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. LAW OFFICE OF JONATHAN A. STIEGLITZ 11845 W. Olympic Blvd., Suite 800 Los Angeles, CA 90064 Telephone: (323) 979 2063 Facsimile: (323) 488 6748 E-mail: jonathan.a.stieglitz@gmail.com ALPHA RECOVERY: Faces Gracius Suit in Eastern Dist. of New York --------------------------------------------------------------- A class action lawsuit has been filed against Alpha Recovery Corp. The case is captioned as Cassandra Gracius, individually and on behalf of all others similarly situated, the Plaintiff, v. Alpha Recovery Corp. and Bureaus Investment Group Portfolio No. 15, LLC, the Defendants, Case No. 1:18-cv-04454 (E.D.N.Y., Aug. 7, 2018). Alpha Recovery Corp is a debt collection agency.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com AMERICAN CORADIUS: Catherina Faust Sues in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against American Coradius International, LLC. The case is captioned as Catherina Faust individually and on behalf of all others similarly situated, the Plaintiff, v. American Coradius International, LLC, the Defendant, Case No. 1:18-cv-04453 (E.D.N.Y., Aug. 7, 2018). American Coradius International LLC is a full service financial service agency representing banks and finance companies on a national level.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com AMERICAN CORADIUS: Faces Mezzo Suit in District of New Jersey ------------------------------------------------------------- A class action lawsuit has been filed against American Coradius International, LLC. The case is captioned as ANTHONY MEZZO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiff, v. AMERICAN CORADIUS INTERNATIONAL, LLC, the Defendant, Case No. 3:18-cv-12562 (D.N.J., Aug. 8, 2018). American Coradius is a full service financial service agency representing banks and finance companies on a national level.[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 AMERICAN CORADIUS: Slater Sues over Debt Collections Practices -------------------------------------------------------------- Anesha Slater, individually and on behalf of all others similarly situated, the Plaintiff, v. American Coradius International LLC, and John Does l-25, the Defendants, Case No. 1:18-cv-04432 (E.D.N.Y., Aug. 6, 2018), seeks to recover damages and declaratory and injunctive relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to March 29, 2018, an obligation was allegedly incurred to "Comenity Capital Bank". The obligation arose out of a transaction in which money, property, insurance or services, which are the subject of the transaction, are primarily for personal, family or household purposes. The alleged obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. On or about March 29, 2018, Defendant sent the Plaintiff a collection letter. The letter fails to indicate whether the "Creditor" refers to Plaintiff's creditor. The body of Defendant's letter open by stating, "We are writing to you regarding your PayPal Credit account. The servicer of PayPal Credit accounts is Bill Me Later." The letter continues, "This letter will serve as confirmation that American Coradius International LLC is will to accept $1,536.77 to resolve [this] account for less than the full balance on the above referenced account. This offer requires that American Coradius International LLC receives your fund in the amount of $1,536.77 on [or before] 04-13-18." Defendant's March 29, 2018 letter fails to clearly identify the Plaintiff's current creditor. Defendant's March 29, 2018 is confusing on its face as to the identity of the party to whom the debt is owed. American Coradius is a full service financial service agency representing banks and finance companies on a national level.[BN] The Plaintiff is represented by: Daniel Kohn, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282 6500 Facsimile: (201) 282 6501 E-mail: dkohn@steinsakslegal.com APPLIED MEDICAL: Burris Suit Alleges FLSA Violation --------------------------------------------------- Kalvin Burris, individually and other similarly-situated employees v. Applied Medical Technology, Inc., Case No. 1:18-cv-01689 (N.D. Ohio, July 20, 2018), is brought against the Defendant for violation of the Fair Labor Standards Act and the Ohio Minimum Faire Wage Standards Act. The Plaintiff worked as a manufacturing employee for the Defendant between July 2016 and October 2016. The Defendant designs and manufactures enteral feeding devices and surgical products. [BN] The Plaintiff is represented by: Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, OH 44113 Tel: (216) 696-5000 Fax: (216) 696-7005 E-mail: lori@lazzarolawfirm.com chastity@lazzarolawfirm.com anthony@lazzarolawfirm.com ARC MANAGEMENT: Faces Gonzalez Suit in Eastern Dist. of New York ---------------------------------------------------------------- A class action has been filed against ARC Management Group, LLC. The case is captioned as Brandon Gonzalez, individually and on behalf of all others similarly situated, the Plaintiff, v. ARC Management Group, LLC, the Defendant, Case No. 1:18-cv-04458 (E.D.N.Y., Aug. 7, 2018). ARC Management is a full service pre-legal and legal commercial and consumer collection agency.[BN] The Plaintiff appears pro se. ARCADIA RECOVERY: Faces Wade Suit in Eastern District of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Arcadia Recovery Bureau, LLC. The case is captioned as Gerron Wade individually and on behalf of all others similarly situated, the Plaintiff, v. Arcadia Recovery Bureau, LLC, the Defendant, Case No. 1:18-cv-04472 (E.D.N.Y., Aug. 8, 2018). Arcadia Recovery provides accounts receivable management solutions to organizations for bridging the gap between services rendered and payments received.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203 7600 Facsimile: (516) 281 7601 E-mail: csanders@sanderslawpllc.com ARSTRAT LLC: Faces Baez Suit in Eastern District of New York ------------------------------------------------------------ A class action lawsuit has been filed against ARStrat, LLC. The case is captioned as Karina Baez, individually and on behalf of all others similarly situated, the Plaintiff, v. ARStrat, LLC, the Defendant Case No. 1:18-cv-04435 (E.D.N.Y., Aug. 6, 2018). ARstrat provides pre-litigation and account litigation services for successful resolutions.[BN] The Plaintiff appears pro se. BARKBOX INC: Faces Kiler Suit in Eastern District of New York ------------------------------------------------------------- A class action lawsuit has been filed against Barkbox, Inc. The case is captioned as Marion Kiler, Individually and as the representative of a class of similarly situated persons, the Plaintiff, v. Barkbox, Inc., also known as: Bark & Co., the Defendant, Case No. 1:18-cv-04424 (E.D.N.Y., Aug. 6, 2018). BarkBox Inc. provides a monthly subscription service for dog owners.[BN] The Plaintiff appears pro se. BHC SERVICES: Jalissa Green Seeks Overtime Pay under FLSA --------------------------------------------------------- JALISSA GREEN, the Plaintiff, v. BHC SERVICES, INC., the Defendant, Case No. 1:18-cv-01805 (N.D. Ohio, Aug. 6, 2018), challenges the Defendant's policies and practices that violate the Fair Labor Standards Act and Ohio's overtime compensation statute. According to the complaint, the Defendant unlawfully failed to pay all overtime compensation due to its home healthcare workers including Plaintiff, the Potential Opt-Ins and the Ohio Class. Specifically, and among other things, Defendant failed to pay Plaintiff, the Potential Opt-Ins and the Ohio Class any compensation for the time spent traveling during the work day, in violation of federal law. The Defendant knew, or showed reckless disregard for whether, Plaintiff, the Potential Opt-Ins, and the Ohio Class was entitled to overtime pay under state and/or federal law.[BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage St. NW, Suite D Massillon, OH 44646 Telephone: (330) 470 4428 Facsimile: (330) 754 1430 E-mail: hans@ohlaborlaw.com sdraher@ohlaborlaw.com BIG CITY: N.Y. App. Div. Affirms Dismissal of T. Maddicks' Suit --------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, affirmed the Supreme Court, New York County's order granting Defendant's Motion to Dismiss the case captioned THERESA MADDICKS, ET AL., Plaintiffs-Appellants, v. BIG CITY PROPERTIES, LLC, ET AL., Defendants, BIG CITY REALTY MANAGEMENT, LLC, ET AL., Defendants-Respondents, 6315, 656345/16 (N.Y. App. Div.). The Defendants moved to dismiss the claims against 145 Pineapple LLC, 2363 ACP Pineapple LLC, 513 Yellow Apple LLC, 603-607 West 139th BCR LLC, 3660 Broadway BCR LLC, 559 West 156 BCR LLC, 605-607 West 141 BCR LLC, and 580 St. Nicholas BCR LLC on the ground that the plaintiffs had made no allegations of wrongdoing against those defendants. The court sua sponte dismissed the claims against Big City Realty Management and the other defendants based on an argument not raised by the defendants. The Court does not, in any way, prejudge arguments that have not been fully briefed on this appeal, e.g., that 545 Edgecombe BCR does not own 545 Edgecombe Avenue, or that the plaintiffs have not actually pleaded conspiracy or aiding and abetting. Moreover, it appears from the record that defendant 3660 Broadway BCR, LLC owns one of the buildings named in the plaintiffs' complaint. 3660 Broadway's reinstatement is without prejudice to any claims it may raise, later in this litigation, about this ownership issue. A full-text copy of the N.Y. App. Div.'s July 26, 2018 Opinion is available at https://tinyurl.com/y8xu34eg from Leagle.com. Newman Ferrara LLP , New York ( Roger A. Sachar, Jr. – rsachar@nfllp.com - of the bar of the State of Missouri, admitted pro hac vice, of counsel), for appellants. Koss & Schonfeld, LLP, New York ( Simcha D. Schonfeld – sds@kandsllp.com - of counsel), for respondents. BNR THE BRIDGE: Hernandez Suit Moved to Western Dist. of Michigan ----------------------------------------------------------------- The class action lawsuit titled JUAQUIN C. HERNANDEZ, and on behalf of all others similarly situated, the Plaintiffs, v. BNR THE BRIDGE, LLC, and BOBBY RISHER, individually, jointly and severally, the Defendants, Case No. 2:18-cv-12361, was transferred from the U.S. District Court for the Eastern District of Michigan, to the U.S. District Court for the Western District of Michigan (Southern Division 1), The Western District of Michigan Court Clerk assigned Case No. 1:18-cv-00875-PLM-RSK to the proceeding. The case is assigned to the Hon. Judge Paul L. Maloney. This lawsuit is brought on behalf of individuals who were employed by the Defendants BNR The Bridge, LLC and its owner Bobby Risher and arises under the Fair Labor Standards Act, the Michigan Workforce Opportunity Wage Act, and the common law of the State of Michigan. According to the complaint, during Plaintiffs' employment, Defendants failed to pay the Plaintiff and similarly situated workers their proper wages, overtime pay, and at times failed to pay any wages at all and failed make payments as promised, failed to ensure sufficient funds in payroll accounts, and unjustly enriched themselves at the expense of their workers.[BN] Attorneys for Plaintiffs: John Philo, Esq. SUGAR LAW CENTER FOR ECONOMIC & SOCIAL JUSTICE 4605 Cass Avenue, Second Floor Detroit, MI 48201 Telephone: (313) 993 4505 Facsimile: (313) 887 8470 E-mail: tparis@sugarlaw.org jphilo@sugarlaw.org - and - Jack W. Schulz, Esq. SCHULZ GOTHAM PLC P.O. Box 44855 Detroit, MI 48244 Telephone: (313) 652 1906 E-mail: jackwschulz@gmail.com BRYANT HEATING: Vullings Says Evolution System Furnace Defective ---------------------------------------------------------------- MICHELLE W. VULLINGS, individually and on behalf of all others similarly situated, the Plaintiffs, v. BRYANT HEATING AND COOLING SYSTEMS, CARRIER CORPORATION, and UNITED TECHNOLOGIES CORPORATION, the Defendants, Case No. 2:18-cv-03317 (E.D. Pa., Aug. 6, 2018), alleges that Defendants made false, misleading and deceptive representations, including advertising, marketing, promotions, sales materials, owner's manual materials, safety materials, express and implied warranties, and press statements and releases that the Defendants provided to its customers, consumers and users of the Bryant (TM) Evolution System Plus 90i. According to the complaint, Michelle W. Vullings purchased a Bryant (TM) Evolution System Plus 90i because she was led to believe it was one of the most reliable furnaces available in the United States. What Vullings, other purchasers of this furnace, and current homeowners with this furnace could not have known is that the Bryant (TM) Evolution System Plus 90i in fact contained defective control boards that led to the malfunction of the system and its failure to operate requiring costly replacements and repairs throughout the limited life of the System. The control boards had defects, including but not limited to, soldering points that failed prematurely and caused error codes and the shutdown of the system. The units were defectively designed, manufactured with faulty and malfunctioning control boards, and were not advertised accurately.[BN] The Plaintiff is represented by: Brent F. Vullings, Esq. VULLINGS LAW GROUP, LLC 3953 Ridge Pike Suite 102 Collegeville, PA 19426 Telephone: (610) 489 6060 Facsimile: (610) 489 1997 CARELINK INC: Court Conditionally Certifies Workers' Class ---------------------------------------------------------- The United States District Court for the Southern District of New York granted Plaintiffs' Motion for Conditional Certification in the case captioned YVONNE DOWNIE, Plaintiff, v. CARELINK, INC., et al., Defendants, No. 16-CV-5868 (JPO)(S.D.N.Y.). The Plaintiff moves for conditional certification of a collective action under Section 216(b) of the Fair Labor Standards Act (FLSA) for her overtime claims, and for certification of several New York-law classes under Federal Rule of Civil Procedure 23. Two employment policies lie at the crux of Downie's suit: (1) the Defendants' alleged failure to pay their employees overtime at time and one-half their regular rates, as required by the U.S. Department of Labor's regulations governing home health aides; and (2) the Defendants' policy of deducting eight hours for sleep and three hours for meal breaks from their employees' 24-hour shifts, amounting to a net compensation of thirteen hours of pay per 24-hour shift. The Plaintiff seeks to certify a FLSA collective of health aides employed by Carelink who were not paid adequate overtime compensation between January 1, 2015, and October 14, 2015. The Plaintiff also seeks to certify five Rule 23 classes of health aides under New York state law: (1) employees who were not paid proper overtime compensation under the NYLL; (2) employees who were paid for only 13 hours out of their 24-hour shifts; (3) employees who were not paid a spread-of-hours premium; (4) employees who did not receive accurate notices as required by New York's Wage Theft Prevention Act; and (5) employees who were not paid minimum wages under New York's Wage Parity Act. FLSA Overtime Collective Action On September 14, 2015, DOL publicly stated that it would not bring enforcement actions against employers for violations of the regulation until 30 days after the date the Court of Appeals issues a mandate making its opinion in Home Care Ass'n of Am. v. Weil, 76 F.Supp.3d 138, 147-48 (D.D.C. 2014) effective. On October 27, 2015, DOL released another statement, identifying November 12, 2015, as the last day of the non-enforcement policy. Therefore, the Plaintiff has satisfied her minimal evidentiary burden to establish that the Defendants had a common policy of not paying overtime to home health aides who worked more than 40 hours per week and that she is similarly situated to other aides who were not paid overtime. In addition to the Plaintiff's own declaration and the payroll evidence she submitted both of which show that Carelink employees were not paid one and one-half times their regular rate for hours over 40 per week, Defendant Bailey also admitted that Carelink did not start paying the proper overtime rate until after October 2015. New York Class of Employees Who Were Not Paid Overtime In addition to her collective action for overtime under FLSA, the Plaintiff moves to certify a class of employees who were not paid overtime, as required by the NYLL, after January 1, 2015. Rule 23(a) Factors The Plaintiff has adequately established numerosity. She alleges, and the Defendants do not contest, that the Defendants employed at least 40 similar home health aides during the relevant time period and subjected them to the same overtime compensation policy. These uncontroverted allegations are sufficient to satisfy the numerosity requirement. The second and third Rule 23(a) factors, commonality and typicality, are likewise satisfied. The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact. Courts have occasionally found plaintiffs to be inadequate in light of serious credibility issues and inconsistencies going to the heart of their claims, but courts will not find a representative inadequate unless such attacks on her credibility are so sharp as to jeopardize the interests of absent class members. The Defendants do not identify any case where a mere failure to recall certain relevant facts justified a finding of inadequacy, especially where, as here, those facts were not critical to the claims. In contrast, Downie's inability to recall certain facts at her deposition does not impugn her credibility in any meaningful way, is not so material that it renders her inadequate to represent the proposed class and does not "jeopardize the interests of the class in any way." The Court concludes that the adequacy requirement is met here. Rule 23(b)(3) Factors Because the Plaintiff seeks certification under Rule 23(b)(3), she must also establish (1) that questions of law or fact common to class members predominate and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Here, both Rule 23(b)(3) requirements are satisfied: the main legal issue whether the defendants violated New York state law by not paying time and one half the regular rate for overtime hours, is subject to generalized proof and a class action is the superior method for resolution because a one-time resolution as to defendants' liability for overtime in the challenged period will be efficient for all parties. New York Class of Employees Paid for Thirteen Hours out of Their 24-hour Live-in Shifts The Plaintiff seeks to certify a Rule 23 class action of aides who worked 24-hour shifts as Carelink employees since July 21, 2010. The Court concludes that Carelink was permitted under New York law to deduct eleven hours for sleep and meal breaks from its employees' 24-hour shifts, amounting to thirteen compensable hours per shift, assuming that the employees actually took such breaks to sleep and eat. There is no need to further belabor matters with a discussion of the requirements under Rule 23. Because an aide must be paid for the full 24 hours only if she does not receive appropriate meal and sleep breaks, individualized and not common questions predominate and class action is not the superior method of adjudication. The Plaintiff's motion to certify a class of aides who were paid only thirteen hours per each 24-hour shift is denied. New York Spread-of-Hours Class The Plaintiff seeks to certify a class of employees based on violations of New York's spread-of-hours law, which provides that employees shall receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage required by New York's minimum wage law for any day in which the spread of hours exceeds 10 hours. The Plaintiff does not offer any response to the Defendants' argument about her eligibility for a spread-of-hours premium based on her above-minimum wage. Perhaps this is because the Plaintiff's spread-of-hours theory is contingent on her argument that she was entitled to be paid for the full 24 hours of each shift, rather than the thirteen hours for which she was generally compensated. The Court denies class certification on this issue. New York Wage Theft Protection Act Class The Plaintiff next seeks certification of a class of employees who worked 24-hour shifts and were not given accurate wage notices under New York's Wage Theft Prevention Act (WTPA). To the extent the Defendants actually failed to provide accurate WTPA notices to their employees, the Plaintiff's claim would not be typical. She admits that she received a WTPA notice shortly after she started working. As the Defendants correctly argue, although the WTPA required them to provide their employees a notice (1) at the time of hiring, and (2) on or before February first of each subsequent year of the employee's employment, the statute provides a private right of action to enforce only the former requirement. Because the Defendants provided Downie with her initial WTPA notice, her claim would not be typical of those employees who have a private right of action to enforce their rights to receive such an initial notice. Again, the Plaintiff does not meaningfully respond to either of these points. The Court again assumes that this is because she believes the Defendants' failure to pay her automatically for all 24 hours per 24-hour shift rendered her WTPA notice inaccurate. Because the premise of that argument has already been rejected, certification is denied on this claim as well. New York Wage Parity Act Class The Plaintiff asserts that she did not get benefits equal to the $14.09 Wage Parity Act minimum wage and the Defendants have not shown proof of payment of the Wage Parity Act benefits. But the Plaintiff, not the Defendants, has the burden to adduce evidence in support of her motion for class certification and none of the evidence the Plaintiff has submitted supports her contention that the Defendants had a policy to violate the Wage Parity Act. To the contrary, Downie's paystubs and payroll evidence demonstrate that the Defendants were complying with the Wage Parity Act's requirement to pay aides at least $10 per hour. The Court concludes that the Plaintiff has not provided sufficient evidence that Defendants failed to comply with the Wage Parity Act, and denies certification on this claim. Accordingly, the Plaintiff's motion for conditional certification of a collective action under 29 U.S.C. Section 216(b) is granted. The Plaintiff's motion for class certification under Rule 23 is granted in part: The court certifies a New York state Rule 23(b)(3) class of employees who were not paid time and one-half overtime after January 1, 2015. The Court denies certification as to all other proposed classes. A full-text copy of the District Court's July 26, 2018 Opinion and Order is available at https://tinyurl.com/ycvcczbb from Leagle.com. Yvonne Downie, Plaintiff, represented by William Coudert Rand, Law Office of William Coudert, and Carelink, Inc., Defendant, represented by David Ellis Prager -- dprager@bsk.com -- Bond, Schoeneck & King, PLLC, Kimberly Brooke Mandel, Ruskin Moscou Faltischek, P.C., Michael Patrick Collins -- mcollins@bsk.com -- Bond, Schoeneck & King, PLLC & Tyler Thomas Hendry -- thendry@bsk.com -- Bond, Schoeneck & King, PLLC. John Does #1-10, Defendant, represented by David Ellis Prager, Bond, Schoeneck & King, PLLC. Ena Bailey, Defendant, represented by David Ellis Prager, Bond, Schoeneck & King, PLLC,Michael Patrick Collins, Bond, Schoeneck & King, PLLC & Tyler Thomas Hendry, Bond, Schoeneck & King, PLLC. CHARISSE & CHRISTINE: Rosario Seeks Unpaid Wages under FLSA ----------------------------------------------------------- ANGEL B. ROSARIO, the Plaintiff, v. CHARISSE & CHRISTINE ENTERPRISES, LTD. d/b/a C-TOWN SUPERMARKETS, and JUAN MARTE, PACO DOE and JOE DOE individually, the Defendants, Case No. 1:18-cv-07020 (S.D.N.Y., Aug. 6, 2018), seeks injunctive and declaratory relief against Defendants for their unlawful actions, compensation for their failure to pay overtime wages, and liquidated damages, compensatory damages, pre-judgment and post-judgment interest, and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and New York Labor Law. According to the complaint, the Plaintiff and the collective class work or have worked as delivery drivers, cashiers, cooks, unloaders and loaders, and butchers at C-Town Supermarkets, located in Bronx, New York owned by Juan Marte and managed by Paco Doe and Joe Doe. As part of its regular business practice, Defendants have intentionally, willfully and repeatedly harmed Plaintiff and the FLSA Collective by engaging in a pattern and/or policy of violating the FLSA. This policy includes, inter alia, the following: failing to pay employees the applicable minimum wage rate for all time worked up to 40 hours per week; failing to pay employees the applicable overtime rate for all time worked in excess of 40 hours per week; and failing to furnish employees with wage notices as required by the NYLL.[BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd floor New York, NY 10007 Telephone: (212) 323 6980 Facsimile: (212) 233 9238 E-mail: jaronauer@aronauerlaw.com CHESAPEAKE OPERATING: Nichols Appeals 10th Cir. Ruling ------------------------------------------------------ Bill G. Nichols has filed a petition for writ of certiorari with the U.S. Supreme Court in connection with his lawsuit against Chesapeake Operating, LLC, et al., asking the high court to review a decision by the U.S. Court of Appeals for the Tenth Circuit. The Supreme Court case is captioned as, Bill G. Nichols, Individually and on Behalf of All Others Similarly Situated, the Petitioner vs. Chesapeake Operating, LLC, et al., the Defendant, Case No. 18-168 (U.S.).[BN] In the Tenth Circuit case, BILL G. NICHOLS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CHESAPEAKE OPERATING, LLC; CHESAPEAKE EXPLORATION, LLC, Defendants-Appellees, Case No. 18-6006 (10th Cir.), Judge Carlos F. Lucero of the U.S. Court of Appeals, Tenth Circuit, affirmed the district court's order denying his motion to abstain, and remand the caseto state court. Nichols is a royalty owner in Oklahoma natural gas wells owned in part or operated by Chesapeake. In August 2016, he sued Chesapeake in Oklahoma state court for underpayment or non-payment of royalties. He sought class certification of certain "Oklahoma Residents," which he defined using a four-part test: Persons to whom, from Jan. 1, 2015 to the date suit was filed, (a) Chesapeake mailed or sent each monthly royalty check on an Oklahoma well to an Oklahoma address (including direct deposit); (b) Chesapeake mailed or sent a 1099 for both 2014 and 2015 to an Oklahoma address; (c) the Settlement Administrator in Fitzgerald Farms, LLC v. Chesapeake Operating, Inc., Case No. CJ-10-38, Beaver County, Oklahoma mailed or sent a distribution check and 1099 to an Oklahoma address; and (d) except for charitable institutions, were not subject to the Oklahoma Withholding Tax for Nonresidents on royalties paid in 2014 to the date suit was filed. Chesapeake removed the case to federal court based on the Class Action Fairness Act ("CAFA"). Nichols soon filed a motion arguing that CAFA's home-state exception required the district court to remand the case to state court. Nichols proffered evidence to show that at least two-thirds of the proposed class members shared Chesapeake's Oklahoma citizenship, including the declaration of statistician Joseph Kadane, Ph.D., who randomly selected 100 royalty owners from a spreadsheet containing 28,929 unique records of royalty owners paid from Oklahoma wells and who have an Oklahoma address. Of the 100 royalty owners comprising Kadane's sample, there were 13 trusts, 7 entities, and 80 individuals. The district court was not persuaded, finding three significant flaws in the evidence. First the district court noted that neither the survey data nor the skip-trace investigation provided information as to the citizenship of trust beneficiaries or trustees -- important components of a trust's citizenship. Second, the district court found that a number of individuals identified as Oklahoma citizens were actually deceased, with no information provided as to heirs' citizenship. Finally, the district court found that Nichols' counsel had an "insufficient basis" for determining that some members of the random sample were Oklahoma citizens. Accordingly, the district court denied Nichols' motion to abstain and remand, finding he had not shown the applicability of CAFA's home-state exception by a preponderance of the evidence. In his Tenth Circuit appeal, Nichols contends that a rebuttable presumption of citizenship arises from his allegation that the proposed class members are Oklahoma residents. And because Chesapeake did not offer evidence that more than one-third of the proposed class members are not Oklahoma residents, Nichols says, the district court was required to abstain. Judge Lucero finds that the Court's non-precedential decision in Reece, and the other circuits that reject the applicability of a rebuttable presumption of citizenship in the context of a CAFA exception invoked based on the mere allegation of residence. There is a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant. Further, an individual's residence is not equivalent to his domicile and it is domicile that is relevant for determining citizenship. Congress no doubt meant to incorporate the established meaning of these terms, into the CAFA exceptions premised on "citizenship." He therefore turns to the evidence Nichols submitted to show that two-thirds or more of the proposed Plaintiff class members were Oklahoma citizens. Judge Lucero acknowledges the significant effort Nichols employed to show that at least two-thirds of the class members shared Chesapeake's Oklahoma citizenship. But he notes that the need for this evidence was of Nichols' own making: he chose to define the class in terms of residence rather than citizenship. By defining the class in terms of residence, Nichols saddled himself with an evidentiary burden, one which he sought to meet through admittedly imperfect evidence. In particular, Kadane reached his conclusion that two-thirds or more of the class members are Oklahoma citizens by extrapolating from a flawed sample. Given the clear-error standard of review, the Judge says he must affirm the district court's conclusion that Nichols failed to prove at least two-thirds of the proposed Plaintiff class members were Oklahoma citizens by a preponderance of the evidence. The district court, therefore, properly determined that CAFA's home-state exception to exercising jurisdiction did not apply. Accordingly, Judge Lucero affirmed. A full-text copy of the Court's March 7, 2018 Order and Judgment is available at https://is.gd/PDxWWW from Leagle.com. The Petitioner is represented by: Kevin Johnson Miller, Esq. Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. 1615 M Street, NW Suite 400 Washington, DC 20036 E-mail: kmiller@kellogghansen.com CHICAGO ATHLETIC: Gramelspacher Sues over Gym Membership Program ---------------------------------------------------------------- MARY GRACE GRAMELSPACHER, individually and on behalf of a class of similarly situated individuals, the Plaintiff, v. CHICAGO ATHLETIC CLUBS, LLC, an Illinois limited liability company, the Defendant, Case No. 2018CH09997 (Ill. Cir. Ct., Aug. 7, 2018), seeks to recover damages and injunctive relief caused by Defendant's violation the Illinois Consumer Fraud and Deceptive Trade Practices Act, breach of contract, breach of the implied covenant of good faith and fair dealing. According to the complaint, the Defendant owns and operates several athletic clubs or gyms throughout the Chicago area and surrounding suburbs. Since at least 2015, Defendant has been offering individuals with a gym membership at the Chicago Athletic Club a loyalty rewards program entitled the "CAC Rewards Program" as an added incentive to said members' gym contracts. The CAC Rewards Program incentivized each member to accrue "points" by completing various "tasks": which members could then use to purchase goods and services at Defendant's facilities. In July 2018, Defendant abruptly and without prior warning to its gym membership terminated the CAC Rewards Program, rendering all points void and leaving Plaintiff and all other putative Class members no opportunity to redeem the points they had accrued by participating in the loyalty program through their completion of tasks. As a result of the sudden cancellation of the CAC Rewards Program, Defendant beached its contracts with its members, engaged in unfair business practices, and caused Plaintiff and the putative Class damages in the form of lost time, financial damages accrued through purchasing services, and other harms.[BN] The Plaintiff is represented by: William P.N. Kingston Esq. McGuire Law, P.C. 55 W. Wacker Drive, 9th Floor City Chicago, IL 60601 Telephone: (312) 893-7002 CHIPOTLE MEXICAN: Awaits Court OK on Bid to Drop Kelley Suit ------------------------------------------------------------ Chipotle Mexican Grill, 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 the company is awaiting a court ruling on its motion to dismiss the class action complaint filed by Elizabeth Kelley. On July 20, 2017, Elizabeth Kelley filed a complaint in the U.S. District Court for the District of Colorado on behalf of a purported class of purchasers of shares of the company's common stock between February 5, 2016 and July 19, 2017, with claims and factual allegations similar to the Ong complaint, based primarily on media reports regarding illnesses associated with a Chipotle restaurant in Sterling, Virginia. The company filed a motion to dismiss the amended complaint on February 12, 2018, and a ruling on the motion remains pending. * * * A status conference is set for Sept. 21 at 10:00 a.m. in Courtroom C203 before Magistrate Judge Scott T. Varholak. Parties may appear by phone by initiating a conference call among themselves first and then contacting the court at (303) 335-2365 at the scheduled date and time, according to a docket entry in the case. Chipotle Mexican Grill, Inc., together with its subsidiaries, operates Chipotle Mexican Grill restaurants. The company was founded in 1993 and is based in Denver, Colorado. CHIPOTLE MEXICAN: Credit Unions' Consolidated Suit Ongoing ---------------------------------------------------------- Chipotle Mexican Grill, 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 the Bellwether Community Credit Union and Alcoa Community Credit Union cases have been consolidated and will proceed as a single action. On May 4, 2017, Bellwether Community Credit Union filed a purported class action complaint in the United States District Court for the District of Colorado alleging that the company negligently failed to provide adequate security to protect the payment card information of customers of the plaintiffs and those of other similarly situated credit unions, banks and other financial institutions alleged to be part of the putative class, causing those institutions to suffer financial losses. Chipotle Mexican Grill said "The complaint also claims we were negligent per se based on alleged violations of Section 5 of the Federal Trade Commission Act and similar state laws." The plaintiff seeks monetary damages, injunctive relief and attorneys' fees. On May 26, 2017, Alcoa Community Credit Union filed a purported class action complaint in the U. S. District Court for the District of Colorado making substantially the same allegations as the Bellwether complaint and seeking substantially the same relief. The Bellwether and Alcoa cases have been consolidated and will proceed as a single action. No further updates were provided in the Company's SEC report. Chipotle Mexican Grill, Inc., together with its subsidiaries, operates Chipotle Mexican Grill restaurants. The company was founded in 1993 and is based in Denver, Colorado. CHIPOTLE MEXICAN: Gordon and Lawson/Conard Suits Underway --------------------------------------------------------- Chipotle Mexican Grill, 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 the Gordon and Lawson/Conard cases have been consolidated and will proceed as a single action. On June 9, 2017, Todd Gordon filed a purported class action complaint in the U. S. District Court for the District of Colorado alleging that the company negligently failed to provide adequate security to protect the payment card information of the plaintiff and other similarly situated customers alleged to be part of the putative class, causing some customers to suffer alleged injuries and others to be at risk of possible future injuries. Chipotle Mexican Grill said "The complaint also claims we were negligent per se based on alleged violations of Section 5 of the Federal Trade Commission Act and similar state laws, and also alleges breach of contract, unjust enrichment, and violations of the Arizona Consumer Fraud Act." Additionally, on August 21, 2017, Greg Lawson and Judy Conard filed a purported class action complaint in the U. S. District Court for the District of Colorado making allegations substantially similar to those in the Gordon complaint, and stating substantially similar claims as well as claims under the Colorado Consumer Protection Act. The Gordon and Lawson/Conard cases have been consolidated and will proceed as a single action. No further updates were provided in the Company's SEC report. Chipotle Mexican Grill, Inc., together with its subsidiaries, operates Chipotle Mexican Grill restaurants. The company was founded in 1993 and is based in Denver, Colorado. CHIPOTLE MEXICAN: Ong's Bid to File 3rd Amended Complaint Pending ----------------------------------------------------------------- Chipotle Mexican Grill, 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 a ruling on plaintiffs' motion for relief from judgment and for leave to file a third amended complaint in the class action suit filed by Susie Ong, remains pending. On January 8, 2016, Susie Ong filed a complaint in the U.S. District Court for the Southern District of New York on behalf of a purported class of purchasers of shares of the company's common stock between February 4, 2015 and January 5, 2016. The complaint purports to state claims against the company, each of the co-chief executive officers serving during the claimed class period and the chief financial officer under Sections 10(b) and 20(a) of the Exchange Act and related rules, based on our alleged failure during the claimed class period to disclose material information about our quality controls and safeguards in relation to consumer and employee health. The complaint asserts that those failures and related public statements were false and misleading and that, as a result, the market price of the company's stock was artificially inflated during the claimed class period. The complaint seeks damages on behalf of the purported class in an unspecified amount, interest, and an award of reasonable attorneys' fees, expert fees and other costs. On March 8, 2017, the court granted the company's motion to dismiss the complaint, with leave to amend. The plaintiff filed an amended complaint on April 7, 2017. On March 22, 2018, the court granted the company's motion to dismiss, with prejudice. On April 20, 2018, the plaintiffs filed a motion for relief from the judgment and seeking leave to file a third amended complaint, and a ruling on the motion remains pending. Chipotle Mexican Grill, Inc., together with its subsidiaries, operates Chipotle Mexican Grill restaurants. The company was founded in 1993 and is based in Denver, Colorado. CLEVELAND INTEGRITY: Kole Seeks Overtime Pay under FLSA ------------------------------------------------------- DAVID KOLE, on Behalf of Himself and on Behalf of All Others Similarly Situated, the Plaintiff, v. CLEVELAND INTEGRITY SERVICES, INC., the Defendant, Case No. 5:18-cv-01803 (N.D. Ohio, Aug. 6, 2018), seeks to recover overtime compensation under the Fair Labor Standards Act. According to the complaint, the Defendant required David Koleto work more than 40 hours in a workweek without overtime compensation. The Defendant misclassified Plaintiff and other similarly situated workers throughout the United States as exempt from overtime under the FLSA, 29 U.S.C. section 201, et seq. The Defendant is a staffing company. It staffs inspectors to various projects. [BN] Attorneys for Plaintiff and Class Members: Chris P. Wido, Esq. THE SPITZ LAW FIRM, LLC 25200 Chagrin Road, Suite 200 Beachwood, OH 44122 Telephone: (216) 291 4744 Facsimile: (216) 291 5744 E-mail: chris.wido@spitzlawfirm.com - and - Beatriz Sosa-Morris, Esq. John Neuman, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885 8844 Facsimile: (281) 885 8813 E-mail: BSosaMorris@smnlawfirm.com JNeuman@smnlawfirm.com COAST TO COAST: Faces Gandy Suit in Northern Dist. of Georgia ------------------------------------------------------------- A class action lawsuit has been filed against Coast to Coast Financial Solutions, Inc. The case is captioned as Nakia Gandy individually and on behalf of all others similarly situated, the Plaintiff, v. Coast to Coast Financial Solutions, Inc. and John Does 1 – 25, the Defendants, Case No. 3:18-cv-00085-TCB-RGV (N.D. Ga., Aug. 7, 2018). The case is assigned to the Hon. Judge Timothy C. Batten, Sr. Coast To Coast Financial Solutions is a full-service, first-and third-party receivables management company.[BN] The Plaintiff is represented by: Jonathan Braxton Mason, Esq. Mason Law Group, LLC – GA 1100 Peachtree Street, NE, Suite 200 Atlanta, GA 30309 Telephone: (404) 920 8040 Facsimile: (404) 920 8039 E-mail: jmason@atlshowbizlaw.com COCA-COLA CO: Ct. Denies Class Certification in Gold Peak Tea Suit ------------------------------------------------------------------ The United States District Court for the Eastern District of Louisiana denied Plaintiffs' Motion for Class Certification in the case captioned PAM FRADELLA, Plaintiff, v. THE COCA-COLA COMPANY, ET AL. SECTION: "E", Defendants, Civil Action No. 17-9622 (E.D. La.). The Plaintiff filed suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana against the Coca-Cola Defendants, alleging she became ill after consuming a Gold Peak Tea containing mold or some other deleterious substance. The Plaintiff brings this action on behalf of a class defined as: All Louisiana residents who, any time from September 1, 2016 to present, purchased a bottle of Gold Peak Teat of any flavor and any size, that contained visible mold or some other visible deleterious substance, and suffered economic loss. To certify a class, Rule 23(a)(1) requires a plaintiff to show the class is so numerous that joinder of all members is impracticable. To demonstrate numerosity, Plaintiffs must establish that joinder is impracticable through some evidence or reasonable estimate of the number of purported class members. The Plaintiff argues this case should proceed as a class action based on the known fact that millions of bottles of Gold Peak Tea have been sold in Louisiana in just the last two years and that, therefore, it can be inferred that thousands of people have identical complaints. She contends that further discovery will reveal that numerous Louisiana consumers have purchased bottles of Gold Peak tea containing mold, and have similar claims. Certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. As part of the Court's rigorous analysis, a party seeking class certification must be prepared to prove that there are in fact sufficiently numerous parties. Ultimately, the Plaintiff's inability to point to any person, other than herself, who fits within her proposed class definition demonstrates the numerosity requirement is not met in this case. The mere allegation that the class is too numerous to make joinder practicable, by itself, is not sufficient to meet this prerequisite. The Court finds the numerosity requirement is not met in this case. A full-text copy of the District Court's July 26, 2018 Order and Reasons is available at https://tinyurl.com/yaevtyf7 from Leagle.com. Pam Fradella, Plaintiff, represented by John D. Sileo , John D. Sileo, Attorney at Law, Casey William Moll, Law Office of John D. Sileo, LLC, Craig Stephen Sossaman --sossamanlaw@bellsouth.net -- Law Offices of Craig S. Sossaman, John Paul Massicot, Law Office of John Paul Massicot, LLC, & Michael Waite Collins , Collins Law Firm. Coca-Cola Company & Coca-Cola Refreshments USA, Inc., Defendants, represented by Quentin F. Urquhart, Jr. -- qurquhurt@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Elizabeth R.R. Showalter -- lshowalter@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Coca-Cola Bottling Company United, Inc. & Coca-Cola Bottling Company United-Gulf Coast, LLC, Defendants, represented by Matthew W. Bailey -- mbailey@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Gretchen F. Richards -- grichards@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Kelly Juneau Rookard -- kjuneau@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. COLGATE PALMOLIVE: ERISA Class Action Underway in New York ---------------------------------------------------------- Colgate-Palmolive Company 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 a putative class action suit related to residual annuity payments in the U.S. District Court for the Southern District of New York. In June 2016, a putative class action claiming that residual annuity payments made to certain participants in the Colgate-Palmolive Company Employees' Retirement Income Plan (the "Plan") did not comply with the Employee Retirement Income Security Act was filed against the Plan, the Company and certain individuals in the United States District Court for the Southern District of New York. This action has been certified as a class action. The relief sought includes recalculation of benefits, pre- and post-judgment interest and attorneys' fees. The Company is contesting this action vigorously. Colgate-Palmolive Company said "Since the amount of any potential loss from this case currently cannot be reasonably estimated, the range of reasonably possible losses in excess of accrued liabilities disclosed above does not include any amount relating to the case." No further updates were provided in the Company's SEC report. Colgate-Palmolive Company, together with its subsidiaries, manufactures and sells consumer products worldwide. It operates through two segments, Oral, Personal and Home Care; and Pet Nutrition. Colgate-Palmolive Company was founded in 1806 and is headquartered in New York, New York. COMMUNITY HEALTH: Appeal in Gibson Class Action Pending ------------------------------------------------------- Community Health Systems, 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 the company's appeal in the case entitled, Gibson v. Byrd Regional Medical Center, is pending. The case is a purported class action lawsuit filed in the 30th Judicial District Court for the State of Louisiana and served on August 3, 2016, claiming the company's affiliated Leesville, Louisiana hospital violated payor contracts by allegedly improperly asserting hospital liens against third-party tortfeasors and seeking class certifications for any similarly situated plaintiffs. The court has certified a class and denied the company's motion for summary judgment. Community Health Systems said "We have appealed both rulings to the Louisiana Third Circuit Court of Appeals. That appeal is pending. We believe these claims are without merit and will vigorously defend the case." Community Health Systems, Inc. operates assisted living facilities. It provides community based geriatric programs aimed at increasing the physical and psycho-social health of older adults. Community Health Systems, Inc. was founded in 1956 and is based in Orange Beach, Alabama. COMMUNITY HEALTH: Awaiting Approval of Mounce Case Settlement ------------------------------------------------------------- Community Health Systems, 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 the company is awaiting the trial court's approval of the settlement in the case, Mounce v. CHSPSC, LLC, et al. The case is a purported class action lawsuit filed in the United States District Court for the Western District of Arkansas and served on July 29, 2015, claiming the company's affiliated Arkansas hospitals violated payor contracts by allegedly improperly asserting hospital liens against third-party tortfeasors and seeking class certifications for any similarly situated plaintiffs at any affiliated Arkansas hospital. The court has certified a class. Community Health Systems said "We have reached a tentative settlement with plaintiffs in this case. We are awaiting the trial court's approval of the settlement." * * * A Class Settlement Approval Hearing has been reset for Sept. 7 at 9:30 a.m. in Fayetteville -- 5th flr (Rm 509) before Honorable Timothy L. Brooks. Community Health Systems, Inc. operates assisted living facilities. It provides community based geriatric programs aimed at increasing the physical and psycho-social health of older adults. Community Health Systems, Inc. was founded in 1956 and is based in Orange Beach, Alabama. COMMUNITY HEALTH: Bid to Dismiss Zwick Partners Suit Denied ----------------------------------------------------------- Community Health Systems, 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 a Tennessee district court overseeing the case entitled, Zwick Partners, LP and Aparna Rao, individually and on behalf of all others similarly situated v. Quorum Health Corporation, Community Health Systems, Inc., Wayne T. Smith, W. Larry Cash, Thomas D. Miller, and Michael J. Culotta, has denied all defendants' motions to dismiss. The purported class action lawsuit previously filed in the United States District Court, Middle District of Tennessee was amended on April 17, 2017 to include Community Health Systems, Inc., Wayne T. Smith and W. Larry Cash as additional defendants. The plaintiffs seek to represent a class of QHC shareholders and allege that the failure to record a goodwill and long-lived asset impairment charge against QHC at the time of the spin-off of QHC violated federal securities laws. The District Court denied all defendants' motions to dismiss on April 20, 2018. Community Health Systems said, "We believe the claims are without merit and will vigorously defend the case." Community Health Systems, Inc. operates assisted living facilities. It provides community based geriatric programs aimed at increasing the physical and psycho-social health of older adults. Community Health Systems, Inc. was founded in 1956 and is based in Orange Beach, Alabama. COMMUNITY HEALTH: Petition for Writ of Certiorari Still Pending --------------------------------------------------------------- Community Health Systems, 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 the petition for writ of certiorari with the United States Supreme Court and the renewed partial motion to dismiss a class action lawsuit before the the district court are still pending. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the Company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. In lieu of ruling on the company's motion to dismiss, the court permitted the plaintiffs to file a first amended consolidated class action complaint which was filed on October 5, 2015. The company's motion to dismiss was filed on November 4, 2015 and oral argument took place on April 11, 2016. The company's motion to dismiss was granted on June 16, 2016 and on June 27, 2016, the plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals. The matter was heard on May 3, 2017. On December 13, 2017, the Sixth Circuit reversed the trial court's dismissal of the case and remanded it to the District Court. The company filed a petition for writ of certiorari with the United States Supreme Court on April 18, 2018 seeking review of the Sixth Circuit's decision. The company also filed a renewed partial motion to dismiss on February 9, 2018 in the District Court. The petition and partial motion to dismiss are pending. Community Health Systems said, "We believe this consolidated matter is without merit and will vigorously defend this case." Community Health Systems, Inc. operates assisted living facilities. It provides community based geriatric programs aimed at increasing the physical and psycho-social health of older adults. Community Health Systems, Inc. was founded in 1956 and is based in Orange Beach, Alabama. CONSTELLATION ENERGY: Court Dismisses M. Coda's Overcharging Suit ----------------------------------------------------------------- Judge John Michael Vazquez of the U.S. District Court for the District of New Jersey granted the Defendant's motion to dismiss the case, MICHAEL CODA, individually and on behalf of all others similarly situated, Plainttff v. CONSTELLATION ENERGY POWER CHOICE, LLC, Defendant, Civil Action No. 17-3437 (JMV) (MF) (D. N.J.). In this putative class action, the Plaintiff alleges that Defendant overcharged him for electricity. Coda alleges that Defendant charged him too much for electricity in violation of the parties' contract. The contract promised a fixed rate for 12 months followed by a variable rate unless the Plaintiff opted for another fixed-rate agreement or canceled. In 1999, New Jersey restructured the electric utility industry, allowing consumers more options in their energy providers. Constellation is an energy service company ("ESCO") that supplies power to residents in New Jersey. It offered the Plaintiff a 12-month fixed rate for electricity, at a rate of $0.0999 per kilowatt hour (kWh), which he accepted in late 2011. The Plaintiff's contract stated that after the initial 12-month period, the Defendant would continue to charge the Plaintiff a "Variable Monthly Rate" based upon such factors as electricity market pricing, transmission costs, utility charges and other market related factors. He also had the option of cancelling the Agreement after the first year or seeking another fixed-rate agreement. The Agreement stated that the Defendant offers several different rate plans for buying electricity which may be higher or lower than Public Service Enterprise Group ("PSE&G")'s posted rate. The Plaintiff was a Constellation customer from Dec. 13, 2011 to Jan. 14, 2016. After the initial year of service, the Plaintiff alleges that the variable rate always exceeded his initial fixed rate, and was significantly higher than PSE&G rate every month from August 2013 through January 2016. The Plaintiff describes this as a "classic bait-and-switch" scheme. He states that Constellation instead charged "unconscionably high" prices after the first year based on factors a reasonable consumer would not predict. The putative class in the Complaint is defined as all Constellation customers who paid Constellation's variable rate for electricity at any time between May 15, 2011 and the present. The Complaint lists three counts: (1) violation of the New Jersey Consumer Fraud Act ("CFA"); (2) breach of contract; and (3) breach of the implied covenant of good faith and fair dealing. The Plaintiff filed the Complaint on May 17, 2017. The Defendant filed the instant motion on July 14, 2017, which the Plaintiff opposed. Judge Vazquez finds that the Complaint does not plausibly plead that Defendant breached the Agreement, much less sufficiently assert substantial aggravating circumstances, which is necessary to proceed on a claim under the CFA. The case is akin to Urbino, Faistl, and Windley -- where the express language of contract permitted consideration of non-exhaustive factors. Unlike Melville, there was no representation that the Plaintiff would pay less in comparison to their local energy suppliers. Moreover, unlike Vitale, there is no allegation here that the Defendant knew it would have to charge much higher prices during certain times of year. For the foregoing reasons, Count I is dismissed because it is not plausibly pled. The Judge also finds that the Plaintiff has not plausibly plead a breach of the Agreement. As with the CFA claim, the Judge does not agree that "market conditions" means wholesale costs and competing rates. As in Hamlen, the Plaintiffs attempt to use wholesale prices as the overriding factor to support its breach of contract claim is not viable because the Variable-Rate Factors are not so limited. Additionally, the Agreement does not guarantee savings or competitive pricing, although the Plaintiff now attempts to read competitive pricing into the contract. For the foregoing reasons, Count II is dismissed. Finally, the Judge finds that the Plaintiff has failed to plausibly allege bad faith, instead relying on vague and conclusory allegations. However, the claim is closer than Count One and Two because the Complaint does allege that the Defendant's rates were higher than PSE&G's for over two years (assuming that PSE&G is an appropriate comparison, which the Defendant contests). However, unlike Hamlen, the Plaintiff does not allege that the Defendant charged a higher rate than PSE&G every month or that its rates were sometimes double those of PSE&G. Thus, Count Three is also dismissed. For the reasons he stated, Judge Vazquez granted the Defendant's motion, and dismissed the Complaint without prejudice. The Plaintiff is granted leave to file an Amended Complaint. The Plaintiff has 30days to file an Amended Complaint, if he so chooses, consistent with the Opinion. If he fails to file an Amended Complaint, the dismissal will be with prejudice. An appropriate Order accompanies the Opinion. A full-text copy of the Court's June 29, 2018 Opinion is available at https://is.gd/ocfKJv from Leagle.com. MICHAEL CODA, Individually and on behalf all others similarly situated, Plaintiff, represented by MATTHEW ROSS MENDELSOHN -- mmendelsohn@mskf.net -- MAZIE SLATER KATZ & FREEMAN LLC. CONSTELLATION ENERGY POWER CHOICE, LLC., Defendant, represented by ELIZABETH J. SHER -- esher@daypitney.com -- DAY PITNEY LLP & NAJU RAJNI LATHIA -- nlathia@daypitney.com -- DAY PITNEY LLP. COVANCE INC: Daniel Bloomquist Wage-and-Hour Action Underway ------------------------------------------------------------ Laboratory Corporation of America Holdings 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 itself in a class action suit entitled, Daniel L. Bloomquist v. Covance Inc., et al. On August 3, 2016, the Company was served with a putative class action lawsuit, Daniel L. Bloomquist v. Covance Inc., et al., filed in the Superior Court of California, County of San Diego. The complaint alleges that Covance Inc. violated the California Labor Code and California Business & Professions Code by failing to provide overtime wages, failing to provide meal and rest periods, failing to pay for all hours worked, failing to pay for all wages owed upon termination, and failing to provide accurate itemized wage statements to Clinical Research Associates and Senior Clinical Research Associates employed by Covance in California. The lawsuit seeks monetary damages, civil penalties, injunctive relief, and recovery of attorney's fees and costs. On October 13, 2016, the case was removed to the U.S. District Court for the Southern District of California. On May 3, 2017, the U.S. District Court for the Southern District of California remanded the case back to the Superior Court. The Company will vigorously defend the lawsuit. No further updates were provided in the Company's SEC report. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. COVANCE MARKET: Sealock Suit Wins Conditional Class Certification ----------------------------------------------------------------- Laboratory Corporation of America Holdings 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 court has granted plaintiff's motion for conditional certification of a collective action in the case, John Sealock, et al. v. Covance Market Access Services, Inc. On September 7, 2017, the Company was served with a putative class action lawsuit, John Sealock, et al. v. Covance Market Access Services, Inc., filed in the U.S. District Court for the Southern District of New York. The complaint alleges that Covance Market Access Services, Inc. violated the Fair Labor Standards Act and New York labor laws by failing to provide overtime wages, failing to pay for all hours worked, and failing to provide accurate wage statements. The lawsuit seeks monetary damages, civil penalties, injunctive relief, and recovery of attorney's fees and costs. In November 2017, the Company filed a Motion to Strike Class Allegations, which was denied. In December 2017, the Plaintiff filed a Motion for Conditional Certification of a Collective Action, which was granted in May 2018. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. CSC SERVICEWORKS: Faces MJM Visions' Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against CSC Serviceworks, Inc. The case is captioned as MJM Visions, LLC individually and on behalf of all others similarly situated, the Plaintiff, v. CSC Serviceworks, Inc., a Delaware corporation, the Defendant, Case No. 1:18-cv-04452-ILG-JO (E.D.N.Y., Aug. 7, 2018). The case is assigned to Judge I. Leo Glasser. CSC ServiceWorks is the leading provider of home and commercial laundry solutions as well as tire inflation and vacuum vending services at stores and gas.[BN] The Plaintiff is represented by: Benjamin H. Richman, Esq. EDELSON PC 350 North Lasalle Street, 14th Floor Chicago, IL 60654 Telephone: (312) 589 6370 Facsimile: (312) 589 6378 E-mail: brichman@edelson.com CUBESMART LP: Court Approves New Jersey Case Settlement ------------------------------------------------------- CubeSmart, L.P. 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 court granted final approval of the settlement of a class action lawsuit filed in the Federal District Court of New Jersey. On July 13, 2015, a putative class action was filed against the Company in the Federal District Court of New Jersey seeking to obtain declaratory, injunctive and monetary relief for a class of New Jersey consumers based upon alleged violations by the Company of the New Jersey Truth in Customer Contract, Warranty and Notice Act and the New Jersey Consumer Fraud Act. On April 19, 2018, the court granted final approval of a settlement for the class action. The settlement and associated expenses, which were previously reserved for, did not have a material impact on the Company's consolidated financial position or results of operations. CubeSmart, L.P., a real estate company, is engaged in the acquisition, development, ownership, operation, and management of self-storage facilities in the United States. CubeSmart, L.P. operates as a subsidiary of CubeSmart. DENKA PERFORMANCE: Court Dismisses Chloroprene Emissions Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Louisiana granted Defendant Denka Performance Elastomer LLC's Motion to Dismiss the case captioned ROBERT TAYLOR, JR., ET AL., v. DENKA PERFORMANCE ELASTOMER LLC, ET AL. SECTION "F," Civil Action No. 17-7668, No. c/w 18-5739 (E.D. La.). It is alleged that as early as 1988 DuPont knew of the deleterious effects of exposure to chloroprene emissions and that DPE had the same knowledge of such harms when it bought the Pontchartrain Works facility. It is alleged that both DuPont and Denka Performance Elastomer LLC (DPE) concealed from the Environmental Protection Agency (EPA) and the Louisiana Department of Environmental Quality (LDEQ) their knowledge regarding chloroprene's harmful effects. In 2010, the EPA classified chloroprene as a likely human carcinogen. The plaintiffs allege that DuPont has emitted chloroprene for many years at levels resulting in concentrations many times the upper limit of acceptable risk, and DPE continues to do so. The plaintiffs advance Louisiana state law causes of action for nuisance, trespass, negligence, and strict liability. They seek injunctive relief in the form of abatement of chloroprene releases such that the concentration of chloroprene does not exceed the 0.2 ug/m3 threshold; damages for deprivation of enjoyment of occupancy of property; punitive damages; and additional damages including medical monitoring to the extent personal injury claims become mature. The defendants now move to dismiss the plaintiffs' claims for lack of subject matter jurisdiction or failure to state a claim. The plaintiffs' own allegations against DuPont are self-defeating. The plaintiffs concede that their claims arise from continuing active releases; in this lawsuit they do not seek to recover money damages for personal injuries contributed to by past chloroprene emissions. It is alleged that the source of the chloroprene emissions that the plaintiffs seek to enjoin is the neoprene production facility at the Pontchartrain Works; DuPont sold the facility and neoprene business to Denka on November 1, 2015; Denka has owned and operated the facility since then; it is Denka and its neoprene business that is subject to comprehensive regulations and permit requirements related to the neoprene production operations that the plaintiffs seek to enjoin; Denka is working with the LDEQ to reduce emissions; Denka has entered into an Administrative Order on Consent with state regulators. The plaintiffs offer no basis for this Court to plausibly infer that any injunctive relief that could be granted enjoining DuPont would have the effect of abating chloroprene emissions from a facility it no longer owns nor operates. Because the injunctive relief the plaintiffs seek from DuPont would not abate emissions, it would not redress their injury. Accordingly, the plaintiffs have failed to carry their burden to show that they have standing to pursue an injunction against DuPont. Denka moves to dismiss for failure to state a claim the plaintiffs' causes of action for nuisance, trespass, negligence, strict liability, as well as the plaintiffs' demand for punitive damages. The plaintiffs first allege that the chloroprene emissions violate the defendants' obligations of vicinage, found in Louisiana Civil Code articles 667-669. The Louisiana Supreme Court has observed: These obligations of vicinage are legal servitudes imposed on the owner of property. These provisions embody a balancing of rights and obligations associated with the ownership of immovables. As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property which occasion some inconvenience to his neighbor. However, his extensive rights do not allow him to do real damage to his neighbor. The plaintiffs allege that the chloroprene emissions are a nuisance within the meaning of Louisiana Civil Code articles 667-669. They allege that the emissions from Denka's plant have deprived them of enjoyment of their property, and at paragraph 56, state that chloroprene emissions are sufficient to cause physical discomfort and annoyance to Plaintiffs, who must confine themselves indoors to escape the excess concentrations of chloroprene emissions, and those emissions cause a nuisance. The plaintiffs do not suggest what about the emissions makes them remain indoors or how they are aware of the emissions.15 They merely recite and intone generic and formulaic conclusions. Another point of deficiency is the absence of any individualized allegations regarding each plaintiff's experience. Nevertheless, because the plaintiffs may indeed be able to cure these wholly defective allegations and because injunctive relief to abate an airborne nuisance could be plausible, the Court again provides the plaintiffs with fourteen days to amend their deficient allegations by adding some factual content specific to each plaintiff. The plaintiffs allege that the defendants' operation of the PWF caused excess levels of chloroprene to encroach upon the property where they live or are otherwise occupants and that the actual physical invasion is continuing. The Louisiana Civil Code recognizes the tort of trespass under article 2315. A trespass occurs when there is an unlawful physical invasion of the property or possession of another. The plaintiffs fail to offer any legal support or factual allegations indicating that they might plausibly recover on a trespass theory having only alleged transient airborne emissions, especially where, as here, they disclaim any property damage or impact whatsoever. There is no allegation by the plaintiffs that their properties have been impacted by the chloroprene emissions. The plaintiffs have failed to allege any facts that, if proved, would entitle them to relief under a trespass theory of recover. The plaintiffs allege that the defendants have a duty to protect the plaintiffs and their property from the effects of excessive chloroprene emissions, that defendants breached this duty knowing the hazardous nature of the excess emissions, that defendants failed to act reasonably to prevent excess emissions, failed to warn or disclose to plaintiffs, the EPA, that LDEQ, or government or community members. Here, the plaintiffs not only fail to allege that they have suffered harm or damages, they disclaim physical injury damages because they do not dispute that they cannot prove a causal link between chloroprene emissions exposure and personal injury. The plaintiffs' allegations that chloroprene emissions have caused mutagenic metabolites to reside in their bodies is entirely speculative and insufficient to support a negligence claim in which injunctive relief to the exclusion of damages is sought. The plaintiffs allege that the operation of the PWF including all units that emit chloroprene exceeding the 0.2 ug/m3 threshold is the cause-in-fact for Plaintiffs' damages; that the defects in operation of the PWF caused the plaintiffs to be exposed to an unreasonable risk of harm; and the defendants knew of the unreasonable risks; and the defendants should be enjoined from any emissions of chloroprene that will result in further exposure to excess chloroprene emissions. This focus on the operation of the PWF undermines any attempt to claim that a ruin, vice, or defect caused the plaintiffs harm. The plaintiffs counter that their allegations must be read in the context of the EPA materials including an inspection report that revealed ruin and vice in the equipment itself, in the form of leaking valves and open-ended lines and the lack of appropriate emission controls on various components of the chloroprene facility. Even if the plaintiffs sufficiently alleged facts indicating a flaw or condition of relative permanence inherent in the PWF equipment, the plaintiffs' strict or custodial liability claim fails the plausibility test for the same reason as their negligence claim: in this lawsuit, they disclaim that they can prove that chloroprene emissions have caused personal injury damages. The plaintiffs' attempt to proceed under a strict liability theory of recovery therefore appears to be another immature tort claim that is not yet ripe. Accordingly, Denka's Rule 12(b)(1) and 12(b)(6) motion is granted. A full-text copy of the District Court's July 29, 2018 Order and Reasons is available at https://tinyurl.com/yb3mfn2v from Leagle.com. Robert Taylor, Jr., individually and as representative of all those similarly situated, Kershell Bailey, individually and as representative of all those similarly situated, Shondrell P. Campbell, individually and as representative of all those similarly situated, Gloria Dumas, individually and as representative of all those similarly situated, Annette Houston, individually and as representative of all those similarly situated, Rogers Jackson, individually and as representative of all those similarly situated, Michael Perkins, individually and as representative of all those similarly situated, Allen Schnyder, Jr., individually and as representative of all those similarly situated, Larry Sorapuru, Sr., individually and as representative of all those similarly situated, Robert Taylor, III, individually and o/b/o his Minor Daughter, N.T. and as representative of all those similarly situated, Janell Emery, Originally named Janelle Emory & Kellie Tabb, Orginally named Kelli Tabb, Plaintiffs, represented by Hugh Palmer Lambert -- hlambert@thelambertfirm.com -- Lambert Firm, APLC, Cayce Christian Peterson -- cpeterson@thelambertfirm.com -- Lambert Firm, APLC, Darryl Jude Tschirn, Law Office of Darryl J. Tschirn, Eberhard D. Garrison -- egarrison@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Gladstone N. Jones, III -- gjones@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Harvey Sylvanous Bartlett, III, Jones, Swanson, Huddell & Garrison, LLC, John J. Cummings, III, Cummings & Cummings, PLC, Joseph M. Bruno, Bruno & Bruno, Kevin Earl Huddell -- khuddell@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Lindsay E. Reeves -- lreeves@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Lynn E. Swanson -- lswanson@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC, Morgan M. Embleton, The Lambert Firm & Randal Leroy Gaines, Randal L.Gaines Law Office. Denka Performance Elastomer LLC, Defendant, represented by James Conner Percy -- jpercy@joneswalker.com -- Jones Walker, Brett S. Venn -- bvenn@joneswalker.com -- Jones Walker, Justin J. Marocco -- jmarocco@joneswalker.com -- Jones Walker, Michael A. Chernekoff -- mchernekoff@joneswalker.com -- Jones Walker & Michael R. Rhea -- mrhea@joneswalker.com -- Jones Walker. DEVONWOOD CORP: Fails to Pay Minimum Wage Rate, Zhanpiessova Says ----------------------------------------------------------------- DINARA ZHANPIESSOVA, on behalf of herself and all others similarly situated, the Plaintiff, v. DEVONWOOD CORPORATION, LLC, the Defendant, Case No. 516028/2018 (N.Y. Sup. Ct., Aug. 7, 2018), seeks to recover minimum wages, overtime compensation, and other damages for Plaintiff and her similarly situated co-workers, consisting of servers, server assistants, bartenders, bussers, barbacks, food runners, and other similarly situated non-managerial employees, who work or have worked at Public Kitchen located at 215 Chrystie Street, New York, New York 10002. According to the complaint, the Defendant failed to provide Plaintiff and other Tipped Workers with proper notification of the tipped minimum wage rate or tip credit provisions of the New York Labor Law or the Fair Labor Standards Act, or of their intent to apply a tip credit to Plaintiffs and other Tipped Workers' wages. Devonwood Investors LLC is a real estate investment firm. The firm seeks to invest in undervalued real estate property in the office, hotel, and retail sectors. Devonwood Investors LLC was founded in 1997 and is based in the United States.[BN] Attorneys for Plaintiff and the Putative Class: Brian S. Schaffer, Esq. Dana M Cimera, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300 0375 The Defendant is represented by: Carolyn D. Richmond, Esq. Glenn S. Grindlinger, Esq. FOX ROTHSCHILD LLP 101 Park Avenue, 17th Floor New York, NY 10178 Telephone: (212) 905 2305 E-mail: crichmond@foxrothschild.com ggrindlinger@foxrothschild.com DOLGEN LLC: E. Fielding's ERISA Claim Must Go to Arbitration ------------------------------------------------------------ The United States District Court for the Eastern District of Virginia, Richmond Division, granted Dollar General's Motion to Compel Arbitration and Stay Proceedings in the case captioned ELLEANA FIELDING, on behalf of herself and all others similarly situated, Plaintiffs, v. DOLGEN, LLC t/a DOLGENCORP, LLC, and BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendants, Civil Action No. 3:17-CV-561 (E.D. Va.). The plaintiff, Elleana Fielding, claims that her former employer, Dolgen, LLC (Dollar General), violated the Fair Labor Standards Act (FLSA) by failing to pay managers overtime and retaliating against her for filing this suit. Fielding also claims that the defendants violated the Employee Retirement Income Security Act (ERISA) by failing to inform her of her right to continued health insurance. Courts must compel arbitration if the moving party demonstrates (1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure to arbitrate the dispute. The National Labor Relations Act (NLRA)affords employee the right to organize unions and bargain collectively, but the Supreme Court recently explained that it does not mention class or collective action procedures and does not provide a right to collective action. Epic Systems Corp. v. Lewis, Nos. 16-285, 16-300, 16-307, 2018 WL 2292444, at *9 (May 21, 2018). The Agreement is therefore legal and enforceable under the FAA. Although Fielding agreed to arbitrate certain disputes with Dollar General, the Agreement exempts claims for ERISA benefits from arbitration. Fielding makes a blanket assertion for ERISA benefits, but does not raise any facts or legal authority to support her claim. A claim for ERISA benefits implicates (1) a right to coverage, (2) an impermissible denial of benefits, or (3) a clarification of future rights. Based on the Court's interpretation of the complaint, Fielding does not state a claim for any benefits, but instead seeks statutory penalties. Under ERISA, a plan administrator who violates the notification requirement must pay the beneficiary a statutory penalty in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. Other relief includes medical expenses, minus deductibles and premiums, following a failure to notify. Fielding seeks medical expenses incurred based on the defendants' failure to notify her of her right to continued coverage, but does not highlight any other specific benefits to which she is entitled. Fielding therefore fails to show a claim for benefits, and the Court interprets the Agreement to cover her ERISA claim. Indeed, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Accordingly, the Court rules that the ERISA claim against Dollar General, therefore, must go to arbitration. A full-text copy of the District Court's June 21, 2018 Opinion is available at https://tinyurl.com/yamvtchq from Leagle.com. Elleana Fielding, on behalf of herself and all others similarly situated, Plaintiff, represented by James Richard Theuer, James R. Theuer, PLLC. Dolgen, LLC, trading as Dolgencorp, LLC, Defendant, represented by Joel Steven Allen -- sarah.allen@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Melissa M. Hensley-- mhensley@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Sara Beth Hall -- sbhall@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Summer Laine Speight -- sspeight@mcguirewoods.com -- McGuireWoods LLP. BlueCross BlueShield of Tennessee, Defendant, represented by Edwin Ford Stephens -- estephens@cblaw.com -- Christian & Barton LLP. DOMINION ENERGY: Appeals Order in Metzler Asset Suit to 4th Cir. ---------------------------------------------------------------- Defendants Dominion Energy, Inc., and Sedona Corp. filed an appeal from a court ruling in the lawsuit styled Dominion Energy, Inc., et al. v. Metzler Asset Management GmbH, et al., Case No. 3:18-cv-00505-MBS, in the U.S. District Court for the District of South Carolina at Columbia. As previously reported in the Class Action Reporter, the lawsuit was filed on February 21, 2018. Dominion Energy produces and transports energy in the United States. The appellate case is captioned as Dominion Energy, Inc., et al. v. Metzler Asset Management GmbH, et al., Case No. 18-310, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Respondents METZLER ASSET MANAGEMENT GMBH, on behalf of themselves and all others similarly situated, and JOSEPH HEINZ, on behalf of himself and all other similarly situated, are represented by: Lawrence P. Eagel, Esq. Melissa A. Fortunato, Esq. BRAGAR, WEXLER & EAGEL, PC 885 3rd Avenue New York, NY 10022-0000 Telephone: (212) 308-5858 E-mail: eagel@bespc.com fortunato@bespc.com - and - Graham Lee Newman, Esq. RICHARD A. HARPOOTLIAN, PA 1410 Laurel Street P. O. Box 1090 Columbia, SC 29201 Telephone: (803) 252-4848 E-mail: gln@harpootlianlaw.com Defendants-Petitioners DOMINION ENERGY, INC., and SEDONA CORP. are represented by: Andrew A. Mathias, Esq. William Walter Wilkins, Esq. Burl F. Williams, Esq. NEXSEN PRUET 55 East Camperdown Way P. O. Box 10648 Greenville, SC 29603 Telephone: (864) 282-1195 Facsimile: (864) 477-2698 E-mail: amathias@nexsenpruet.com bwilkins@nexsenpruet.com bwilliams@nexsenpruet.com - and - Brian Emory Pumphrey, Esq. Brian David Schmalzbach, Esq. MCGUIREWOODS, LLP 800 East Canal Street P. O. Box 3916 Richmond, VA 23219 Telephone: (804) 775-4745 Facsimile: (804) 698-2304 E-mail: bpumphrey@mcguirewoods.com bschmalzbach@mcguirewoods.com ECLINICAL WORKS: Fails to Secure Healthcare Records, Tot Claims --------------------------------------------------------------- KRISTINA TOT, as Administratrix of the Estate of STJEPAN TOT and RANDY STERN, as Executor of the Estate of ANNETTE MONACHELLI, on behalf of themselves and all others similarly situated, the Plaintiffs, v. eCLINICAL WORKS, LLC, a Delaware Limited Liability Company, the Defendant, Case No. 1:18-cv-11658 (D. Mass., Aug. 6, 2018), alleges ECW failed to provide, secure and safeguard the healthcare records of the patients of those healthcare providers, in violation of its duty to those patients. According to the complaint, the accuracy and reliability of those records are central to the health and well-being of every such patient. Every healthcare patient rightfully expects that the integrity of their healthcare records be maintained, i.e., that they are accurate, and further, that their audit logs ensure that any changes or modifications to those records are accurately captured. ECW has violated its duty to those patients by marketing and selling software used by those patients' healthcare providers that failed to maintain the accuracy and integrity of patients' EHRs. ECW misrepresented to the federal government that its software protected the accuracy and integrity of patients' records when it did not (the subject of a qui tam proceeding that the federal government concluded against ECW last year), falsely obtaining certification from the federal government for its software and allowing it to market and sell it to healthcare providers. As a result, the medical records of millions of patients have been compromised. Patients cannot rely on those records, to their harm. In marketing and selling its EHR software to healthcare providers throughout the United States, ECW falsely represented to healthcare providers, its certifying bodies and the federal government that its software complied with the requirements for certification. ECW's software was unable to satisfy certain certification criteria relating to the accuracy and reliability of patient records. The Defendant is a leading cloud-based Electronic Health Records vendor in the U.S. used by hospitals, doctors, health groups and other healthcare and medical providers.[BN] Attorneys for Plaintiff and the Class: Patrick M. Groulx, Esq. ISENBERG GROULX, LLC 368 West Broadway, Suite 2 Boston, MA 02127 Telephone: (857) 880 7889 Facsimile: (617) 249 1981 E-mail: patrick@i-gllc.com - and - Gordon Price Diefenbach, Esq. DIEFENBACH, PLLC 888 Seventh Avenue, 6th Floor New York, NY 10106 Telephone: (212) 981 2233 Facsimile: (646) 867 -1150 E-mail: gordon@diefenbachlaw.com - and - Steven E. Armstrong, Esq. LAW OFFICES OF STEVEN E. ARMSTRONG, PLLC 26 Broadway, 17th Floor New York, NY 10004 Telephone: (646) 708 3658 Facsimile: (212) 344 7285 E-mail: sarmstrong@armstrongpllc.com - and - David M. Given, Esq. PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 39 Mesa Street, Suite 201 San Francisco, CA 94129 Telephone: (415) 398 0900 Facsimile: (415) 398 0911 E-mail: dmg@phillaw.com EDISON BALLROOM: Faces Bishop Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Edison Ballroom LLC. The case is captioned as Cedric Bishop on behalf of himself and all others similarly situated, the Plaintiff, v. Edison Ballroom LLC, the Defendant, Case No. 1:18-cv-07065 (S.D.N.Y., Aug. 6, 2018). Edison Ballroom is elegant private event space in the heart of Times Square, New York City.[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 EXPEDIA GROUP: Bid to Compel Arbitration Granted in Orbitz Suit --------------------------------------------------------------- Expedia Group, 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 on June 6, 2018, a court has granted defendants' motion to compel arbitration and stayed the case pending completion of individual arbitration in the Orbitz Data Breach Putative Class Action. Expedia Group, Inc., together with its subsidiaries, operates as an online travel company in the United States and internationally. It operates through Core OTA, Trivago, HomeAway, and Egencia segments. Expedia Group, Inc. was founded in 1996 and is headquartered in Bellevue, Washington. EXPEDIA GROUP: Buckeye Tree et al. File Renewed Class Cert. Motion ------------------------------------------------------------------ A Renewed Motion for Class Certification was filed August 17 by Plaintiffs 2020 O Street Corporation, Inc., Buckeye Tree Lodge and Sequoia Village Inn, LLC, in their lawsuit against Expedia, Inc. et al. A hearing on the Motion is set for Oct. 25 at 10:00 a.m. in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Responses are due by Aug. 31. Replies are due by Sept. 7. Expedia Group, 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 on May 17, 2018, the court denied plaintiffs' motion for class certification and set a deadline of Aug. 17 for plaintiffs to file a renewed motion. The cases are: -- Buckeye Tree Lodge and Sequoia Village Inn, LLC v. Expedia, Inc. et al., Case No. 3:16-cv-04721 (N.D. Cal., Aug. 17, 2016); and -- 2020 O Street Mansion Corporation, Inc. v. Expedia, Inc. et al., Case No. 3:17-cv-01186 (N.D. Cal., March 7, 2017). Expedia Group, Inc., together with its subsidiaries, operates as an online travel company in the United States and internationally. It operates through Core OTA, Trivago, HomeAway, and Egencia segments. Expedia Group, Inc. was founded in 1996 and is headquartered in Bellevue, Washington. FIFTH THIRD: Seldomridge Sues for Service-to-Solutions Staff Wages ------------------------------------------------------------------ JENNIFER SELDOMRIDGE, the Plaintiff, v. FIFTH THIRD BANK, the Defendant, Case No. Case: 1:18-cv-00553-SJD (S.D. Ohio, Aug. 6, 2018), alleges that the Defendant's practices and policies of not paying its hourly, non-exempt employees, including Plaintiff and other similarly-situated employees, for all hours worked, is in violation of the Fair Labor Standards Act and Michigan Wage Act. The Defendant operates customer service call centers. At all times material to this Complaint, Plaintiff worked as a Service to Solutions employee in Defendant's Grand Rapids, Michigan call center. The Plaintiff and other similarly situated Service to Solutions employees were classified by Defendant as non-exempt employees. The Plaintiff and other similarly situated employees routinely worked 40 or more hours per workweek. The Plaintiff and other similarly situated employees were paid on an hourly basis. Fifth Third Bank is a national bank headquartered in Cincinnati, Ohio at Fifth Third Center.[BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. Nilges Draher LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470 4428 Facsimile: (330) 754 1430 E-mail: hans@ohlaborlaw.com sdraher@ohlaborlaw.com FINANCE SYSTEM: Faces Sandri Suit in E.D. Wisconsin --------------------------------------------------- A class action lawsuit has been filed against Finance System of Green Bay Inc. The case is captioned as Dorean A. Sandri, individually and on behalf of all others similarly situated, the Plaintiff v. Finance System of Green Bay Inc. and John Does, the Defendants, Case No. 1:18-cv-01208 (E.D. Wisc., Aug. 6, 2018). Finance System of Green Bay, Inc. offers collection solutions for multiple industries.[BN] The Plaintiff is represented by: Andrew T Thomasson, Esq. STERN THOMASSON LLP 150 Morris Ave-2nd Fl Springfield, NJ 07081 Telephone: (973) 379 7500 Facsimile: (973) 532 5868 E-mail: andrew@sternthomasson.com FIRST HAWAIIAN: Unit Still Defends Overdraft Fee-Related Suit ------------------------------------------------------------- First Hawaiian, 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 the company's subsidiary First Hawaiian Bank (FHB) continues to defend itself from a class action suit, filed by a bank customer. On January 27, 2017, a purported class action lawsuit was filed by a Bank customer alleging that FHB improperly charges an overdraft fee in circumstances where an account had sufficient funds to cover the transaction at the time the transaction is authorized but not at the time the transaction is presented for payment, and that this practice constitutes an unjust and deceptive trade practice and a breach of contract. The lawsuit further alleged that FHB's practice of assessing a one-time continuous negative balance overdraft fee on accounts remaining in a negative balance for a seven-day period constitutes a usurious interest charge and an unfair and deceptive trade practice. On July 23, 2018, the plaintiff amended the complaint to drop the usury claim related to FHB's practice of assessing a one-time continuous negative balance overdraft fee, but added additional claims alleging (1) that FHB "prematurely deducts" its own bank fees from accounts causing additional overdraft and insufficient funds fees; (2) that FHB assesses continuing overdraft notification fees on overdraft balances composed of only FHB's fees; and (3) that FHB improperly assesses paper statement fees when consumers elect to receive electronic statements. Plaintiff appears to assert claims for breach of contract, unfair and deceptive practices, conversion and unjust enrichment based on each of these theories. This lawsuit is similar to lawsuits filed against other financial institutions pertaining to available balance overdraft fee disclosures and continuing negative balance overdraft fees. Because of the many questions of fact and law that may arise in the future, the outcome of this legal proceeding is uncertain at this point. Based on information available to the Company at present, the Company cannot reasonably estimate a range of potential loss, if any, for this action because, among other things, its potential liability depends on whether a class is certified and, if so, the composition and size of any such class, the applicable time period at issue, as well as an assessment of the appropriate measure of damages if the Company were to be found liable. Accordingly, the Company has not recognized any liability associated with this action. Management disputes any wrongdoing and the case is being vigorously defended. First Hawaiian, Inc. operates as a bank holding company for First Hawaiian Bank that provides a range of banking services to consumer and commercial customers in the United States. It operates through Retail Banking and Commercial Banking segments. The company was founded in 1858 and is headquartered in Honolulu, Hawaii. First Hawaiian, Inc. is a subsidiary of BancWest Corporation. FIRST SOLAR: Smilovits Class Action Still Ongoing ------------------------------------------------- First Solar, 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 the company continues to defend itself in a class action suit entitled, Smilovits v. First Solar, Inc., et al. On March 15, 2012, a purported class action lawsuit titled Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555-DGC, was filed in the United States District Court for the District of Arizona (hereafter "Arizona District Court") against the Company and certain of its current and former directors and officers. The complaint was filed on behalf of persons who purchased or otherwise acquired the Company's publicly traded securities between April 30, 2008 and February 28, 2012 (the "Class Action"). The complaint generally alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements regarding the Company's financial performance and prospects. The action includes claims for damages, including interest, and an award of reasonable costs and attorneys' fees to the putative class. The Company believes it has meritorious defenses and will vigorously defend this action. On July 23, 2012, the Arizona District Court issued an order appointing as lead plaintiffs in the Class Action the Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme (collectively, the "Pension Schemes"). The Pension Schemes filed an amended complaint on August 17, 2012, which contains similar allegations and seeks similar relief as the original complaint. Defendants filed a motion to dismiss on September 14, 2012. On December 17, 2012, the court denied defendants' motion to dismiss. On October 8, 2013, the Arizona District Court granted the Pension Schemes' motion for class certification, and certified a class comprised of all persons who purchased or otherwise acquired publicly traded securities of the Company between April 30, 2008 and February 28, 2012 and were damaged thereby, excluding defendants and certain related parties. Merits discovery closed on February 27, 2015. Defendants filed a motion for summary judgment on March 27, 2015. On August 11, 2015, the Arizona District Court granted defendants' motion in part and denied it in part, and certified an issue for immediate appeal to the Ninth Circuit Court of Appeals (the "Ninth Circuit"). First Solar filed a petition for interlocutory appeal with the Ninth Circuit, and that petition was granted on November 18, 2015. On May 20, 2016, the Pension Schemes moved to vacate the order granting the petition, dismiss the appeal, and stay the merits briefing schedule. On December 13, 2016, the Ninth Circuit denied the Pension Schemes' motion. On January 31, 2018, the Ninth Circuit issued an opinion affirming the Arizona District Court's order denying in part defendants' motion for summary judgment. On March 16, 2018, First Solar filed a petition for panel rehearing or rehearing en banc with the Ninth Circuit. On May 7, 2018, the Ninth Circuit denied defendants' petition. The case is now pending in the Arizona District Court. First Solar, Inc. provides photovoltaic solar energy solutions in the United States and internationally. It operates through two segments, Components and Systems. First Solar, Inc. was founded in 1999 and is headquartered in Tempe, Arizona. FLARE ENERGY: Saunders Seeks Overtime Wages under FLSA ------------------------------------------------------ JEREMY SAUNDERS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. FLARE ENERGY SERVICES, LLC, the Defendant, Case No. 5:18-cv-00810 (W.D. Tex., Aug. 6, 2018), alleges that Defendant's conduct violates the Fair Labor Standards Act, which requires non-exempt employees to be compensated for all hours in excess of 40 in a workweek at one and one-half times their regular rate. According to the complaint, the Defendant required Plaintiff to work more than 40 hours in a work week as a flowback operator. The Plaintiff is a former employee of Defendant who performed work related to oil and gas wells serviced by Defendant. The Defendant misclassified Plaintiff as an exempt employee and paid him a salary plus a day rate without overtime. Defendant also misclassifies other flowback operators and similar employees as exempt employees across the country and likewise denied them their proper overtime compensation. Defendant provides oil and gas well monitoring services to energy companies nationwide.[BN] The Plaintiff is represented by: Beatriz-Sosa Morris, Esq. SOSA-MORRIS NEUMAN, PLLC 5612 Chaucer Drive Houston, TX 77005 Telephone: (281) 885 8844 Facsimile: (281) 885 8813 E-mail: BSosaMorris@smnlawfirm.com FRANKLIN RESOURCES: Fernandez-Cryer Consolidated Suit Ongoing ------------------------------------------------------------- Franklin Resources, 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 the company continues to defend the consolidated Fernandez and Cryer action. On July 28, 2016, a former employee filed a class action lawsuit captioned Cryer v. Franklin Resources, Inc., et al. in the United States District Court for the Northern District of California against Franklin, the Franklin Templeton 401(k) Retirement Plan ("Plan") Investment Committee ("Investment Committee"), and unnamed Investment Committee members. The plaintiff asserts a claim for breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), alleging that the defendants selected mutual funds sponsored and managed by the Company (the "Funds") as investment options for the Plan when allegedly lower-cost and better performing non-proprietary investment vehicles were available. The plaintiff also claims that the total Plan costs, inclusive of investment management and administrative fees, are excessive. The plaintiff alleges that Plan losses exceed $79.0 million and seeks, among other things, damages, disgorgement, rescission of the Plan's investments in the Funds, attorneys' fees and costs, and pre- and post-judgment interest. On November 2, 2017, a second former employee, represented by the same law firm, filed another class action lawsuit relating to the Plan in the same court, captioned Fernandez v. Franklin Resources, Inc., et al. The plaintiff filed an amended complaint on February 6, 2018, naming the same defendants as those named in the Cryer action, as well as the Franklin Board of Directors, the Plan Administrative Committee, individual current and former Franklin directors, and individual current and former Investment Committee members. The plaintiff in this second lawsuit asserts the same ERISA breach of fiduciary duty claim asserted in the Cryer action, as well as claims for alleged prohibited transactions by virtue of the Plan's investments in the Funds and for an alleged failure to monitor the performance of the Investment Committee. The plaintiff alleges that Plan losses exceed $60.0 million and seeks the same relief sought in the Cryer action. On April 6, 2018, the court consolidated the Fernandez action with the existing Cryer action. Management strongly believes that the claims asserted in the litigation are without merit. The fact discovery phase in the consolidated action is closed and the parties are currently in the expert discovery phase. Franklin is defending against the consolidated action vigorously. Franklin cannot at this time predict the eventual outcome of the litigation or whether it will have a material negative impact on the Company, or reasonably estimate the possible loss or range of loss that may arise from any negative outcome. No further updates were provided in the Company's SEC report. Franklin Resources, Inc. is a publicly owned asset management holding company. Through its subsidiaries, the firm provides its services to individuals, institutions, pension plans, trusts, and partnerships. Franklin Resources, Inc. was founded in 1947 and is based in San Mateo, California with an additional office in Hyderabad, India. GENERAL ELECTRIC: Bid to Dismiss 401(k) Plan Suit Underway ---------------------------------------------------------- General Electric Company 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 is seeking dismissal on behalf of all defendants of a California class action lawsuit. On September 27, 2017, three individual plaintiffs filed a putative class action lawsuit in the U.S. District Court for the Southern District of California with claims regarding the oversight of GE's 401(k) plan (the GE RSP). From October 30 to November 15, 2017, three similar class action suits were filed in the U.S. District Court for the District of Massachusetts. All four actions have been consolidated into a single action in the District of Massachusetts. The consolidated complaint names as defendants GE, GE Asset Management, current and former GE and GE Asset Management employees who served on fiduciary bodies responsible for overseeing the GE RSP during the class period and current and former members of GE's Board of Directors. Like similar lawsuits that have been brought against other companies in recent years, this action alleges that the defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA) in their oversight of the GE RSP, principally by retaining five proprietary funds that plaintiffs allege were underperforming as investment options for plan participants and charging higher management fees than some alternative funds. The plaintiffs seek unspecified damages on behalf of a class of GE RSP participants and beneficiaries from October 30, 2011 through the date of any judgment. In April, GE filed a motion to dismiss on behalf of all defendants. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENERAL ELECTRIC: Securities Suit Filed in New York State Court --------------------------------------------------------------- General Electric Company 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 is facing a putative class action suit filed in New York. In July 2018, a putative class action was filed in New York state court naming as defendants GE, Jeffrey R. Immelt, Jeffrey S. Bornstein, Jan R. Hauser, John L. Flannery, Douglas A. Warner III and KPMG. It alleges violations of Sections 11, 12 and 15 of the Securities Act of 1933 based on alleged misstatements related to insurance reserves and performance of GE's business segments in GE Stock Direct Plan registration statements and documents incorporated therein by reference and seeks damages on behalf of shareowners who acquired GE stock between July 20, 2015 and July 19, 2018 through the GE Stock Direct Plan. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENERAL ELECTRIC: Sjunde AP-Fonden Class Suit in New York Ongoing ----------------------------------------------------------------- General Electric Company 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 a consolidated class action suit entitled Hachem v. GE et al. Since November 2017, several putative class actions under the federal securities laws have been filed against GE and certain affiliated individuals. All of those actions filed to date have been consolidated into a single action currently pending in the U.S. District Court for the Southern District of New York (Hachem v. GE et al.). In May 2018, the court appointed Sjunde AP-Fonden (AP7) as Lead Plaintiff and Kessler Topaz Meltzer & Check, LLP as Lead Counsel for the consolidated shareholder actions. In July 2018, AP7 filed the Third Amended Consolidated Class Action Complaint naming as defendants GE, Jeffrey R. Immelt, Jeffrey S. Bornstein, Jamie S. Miller, Keith S. Sherin, Jan R. Hauser and Richard A. Laxer. It alleges violations of Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 related to insurance reserves and accounting for long-term service agreements and seeks damages on behalf of shareowners who acquired GE stock between February 27, 2013 and January 23, 2018. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENERAL MOTORS: Faces Davis Suit in Northern District of Alabama ---------------------------------------------------------------- A class action lawsuit has been filed against General Motors Company Inc. The case is captioned as Robert Davis, individually and on behalf of all others similarly situated, the Plaintiff, v. General Motors Company Inc., General Motors Holdings LLC, and General Motors LLC, the Defendants, Case No. 5:18-cv-01239-MHH (N.D. Ala., Aug. 6, 2018). The case is assigned to the Hon. Judge Madeline Hughes Haikala. General Motors Company, commonly referred to as General Motors, is an American multinational corporation headquartered in Detroit that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services.[BN] The Plaintiff is represented by: Eric J Artrip, Esq. MASTANDO & ARTRIP LLC 301 Washington Street, Suite 302 Huntsville, AL 35801 Telephone: (256) 532 2222 Facsimile: (256) 513 7489 E-mail: artrip@mastandoartrip.com HALIBURTON ENERGY: Court Grants Arbitration in Wage & Hour Suit --------------------------------------------------------------- The United States District Court for the Eastern District of California granted Defendant's Motion to Compel Arbitration in the case captioned LUIS GUERRERO, an individual on behalf of himself, all others similarly situated and on behalf of the general public, Plaintiff, ARBITRATION v. HALIBURTON ENERGY SERVICES, INC., a corporation; and DOES 1 through 100, inclusive, Defendants, No. 1:16-cv-01300-LJO-JLT (E.D. Cal.). The Defendant filed a motion to compel arbitration of the Plaintiff's claims, arguing that the Plaintiff's claims were covered by several valid and binding arbitration agreements that he signed in connection with his employment. The Plaintiff was employed by the Defendant in a position titled Entry Level Operator Assistant I. The Plaintiff alleges, on behalf of himself and others similarly situated, that HESI engaged in unlawful employment practices, including underpaying workers, failing to pay overtime, and failing to give employees meal periods. Waiver The Plaintiff argues that the Defendant waived its right to enforce the arbitration agreements here by failing to compel arbitration from the filing of the case in July of 2016 until filing this motion in May of 2017. Whether HESI Had Knowledge Of Its Right To Compel Arbitration As to the first factor, the Defendant does not dispute that it had knowledge of its right to compel arbitration from the inception of this litigation. Indeed, the Defendant stated its intent to reserve its right to compel arbitration in motions to dismiss filed in September and December of 2016, as well as in its answer to the Plaintiff's Second Amended Complaint filed in March of 2017, and the parties' joint scheduling report filed in April of 2017. The first factor is met. Whether HESI Took Actions Inconsistent With The Right To Arbitrate With respect to the second factor, the Plaintiff argues that the Defendant's decision to remove the case to federal court and to litigate the matter in federal court for months prior to moving to compel arbitration is inconsistent with the Defendant's right to arbitrate. The Defendant counters that filing pre-discovery dispositive motions prior to moving to compel arbitration is not inconsistent with its right to compel arbitration. The Defendant relies on several Ninth Circuit cases in support of its position that the mere filing of pre-trial motions is not a waiver of the right to compel arbitration under the FAA. However, these cases are inapposite. In Global Securities & Communications, Inc. v. AT & T, the court determined that AT & T's pre-trial motions were not inconsistent with its right to compel arbitration. However, the court's analysis rested heavily on the fact that AT & T was not aware of its right to arbitrate until after the pre-trial motions were filed, and it filed its motion to compel before answering the complaint and "promptly after learning of the arbitration clause in the agreements, approximately four months after [plaintiff] filed its complaint. Here, the Defendant was well aware of its right to seek arbitration when it opted to litigate this case. Whether The Delay Has Prejudiced Guerrero The Plaintiff asserts that he and the putative class were prejudiced by the Defendant's ten-month delay in filing its motion to compel arbitration. The Plaintiff argues that he has expended considerable resources opposing the Defendant's motions to dismiss and strike, preparing and propounding discovery, preparing and serving initial disclosures, and attending and participating in a scheduling conference before the Court. Here, the Plaintiff asserts in conclusory fashion that he has been prejudiced because he has been forced to expend time and resources litigating this action. However, the parties have not conducted extensive discovery in this case. Indeed, the Plaintiff has expounded discovery requests, which the Court does not hold against the Defendant's effort to arbitrate, but the Defendant apparently has not propounded any discovery. Likewise, the Court has not reached the merits of this case in its rulings to date. Class Action Waiver The Plaintiff argued that the class action waiver contained in the arbitration agreement, which required the Plaintiff to arbitrate his claims on an individual basis only, was invalid under the Ninth Circuit's decision in Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016). In Morris, the Ninth Circuit held that class action waivers in employment arbitration agreements violated sections 7 and 8 of the National Labor Relations Act (NLRA) which prohibit employer interference with the right of employees to engage in concerted activity. On May 21, 2018, the Supreme Court reversed the Ninth Circuit's decision in Morris in Epic, 138 S.Ct. 1612 (2018), which held that an arbitration agreement in which an employee agrees to arbitrate claims against an employer on an individual rather than on a class or collective basis, is enforceable and does not violate the NLRA. In light of the recent decision in Epic, the Plaintiff's argument that the class action waiver violates the NLRA is without merit. Unconscionability The Plaintiff argues that the arbitration agreements are unenforceable because they are both procedurally and substantively unconscionable. The Plaintiff asserts that the arbitration agreements at issue here are procedurally unconscionable because: (1) they are adhesion contracts that gave the Plaintiff no opportunity to negotiate the terms or to opt-out, and (2) they failed to attach the applicable arbitration rules. In terms of substantive unconscionability, the Plaintiff states only that the agreements are unlawful because they contain unlawful waivers of the Plaintiff's right to bring collective and representative actions and are therefore unlawful and unenforceable under the NLRA, FAA and California law. The Supreme Court explicitly rejected the argument that class action waivers render an arbitration agreement unlawful or unenforceable under the NLRA or FAA.As for California law, the California Supreme Court has recognized that under the United States Supreme Court's decision in AT & T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the FAA pre- empts prior California law holding that class action waivers in employment arbitration agreements contrary to public policy. Therefore, the class action waiver is not unenforceable on state law grounds either. The motion to compel arbitration is granted. A full-text copy of the District Court's July 26, 2018 Memorandum Decision and Order is available at https://tinyurl.com/yayrxmey from Leagle.com. Luis Guerrero, on behalf of himself, all others similarly situated and on behalf of the general public, Plaintiff, represented by David Thomas Mara -- dmara@turleylawfirm.com -- The Turley & Mara Law Firm, APLC, Jamie Kathryn Serb, Turley & Mara Law Firm, APLC, Jessica Renee Corrales, Turley Law Firm, APLC, Jill Marie Vecchi, Turley & Mara Law Firm, APLC, Katharine McCall, Turley Law Firm & William Turley, Turley & Mara Law Firm, APLC. Halliburton Energy Services, Inc., Defendant, represented by Amy Elaine Beverlin -- abeverlin@mcguirewoods.com -- McGuireWoods LLP, Sabrina Alexis Beldner -- sbeldner@mcguirewoods.com -- McGuire Woods LLP, Sylvia Jihae Kim -- skim@mcguirewoods.com -- McGuire Woods, LLP & Matthew C. Kane -- mkane@mcguirewoods.com -- McGuire Woods LLP. HALLIBURTON CO: Bid to Dismiss Amended Magruder Class Suit Pending ------------------------------------------------------------------ Halliburton Company 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's motion to dismiss the Magruder v. Halliburton Co., et. al., remains pending. Halliburton said, "Commencing in June 2002, a number of class action lawsuits were filed against us in federal court alleging violations of the federal securities laws arising out of our change in accounting for revenue on long-term construction projects, our 1998 acquisition of Dresser Industries, Inc. and our reserves for asbestos liability exposure. In December 2016, we reached an agreement to settle these lawsuits and in July 2017, the district court issued final approval of the settlement." The settlement resolves all pending cases other than Magruder v. Halliburton Co., et. al. (the Magruder case). The allegations arise out of the same general events described, but for a later class period, December 8, 2001 to May 28, 2002. There has been limited activity in the Magruder case. In March 2009, the company's motion to dismiss was granted, with leave to replead. In March 2012, plaintiffs filed an amended complaint and in May 2012, the company filed a motion to dismiss. That motion was granted in May 2018, with leave to replead some of the claims. An amended complaint was filed in June 2018 and the company filed another motion to dismiss which remains pending. Halliburton said, "We cannot predict the outcome or consequences of this case, which we intend to vigorously defend." Halliburton Company provides a range of services and products to oil and natural gas companies worldwide. The company's Completion and Production segment offers production enhancement services, including stimulation and sand control services; and cementing services, such as bonding the well, well casing, and casing equipment. Halliburton Company was founded in 1919 and is based in Houston, Texas. INTEL CORP: At Least 49 Class Suits Filed over PC Security Flaws ---------------------------------------------------------------- Intel 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 company is facing class action lawsuits related to security vulnerabilities. In June 2017, a Google research team notified the company and other companies that it had identified security vulnerabilities (now commonly referred to as "Spectre" and "Meltdown") that affect many types of microprocessors, including the company's products. As is standard when findings like these are presented, the company worked together with other companies in the industry to verify the research and develop and validate software and firmware updates for impacted technologies. On January 3, 2018, information on the security vulnerabilities was publicly reported, before software and firmware updates to address the vulnerabilities were made widely available. Numerous lawsuits have been filed against Intel and, in certain cases, the company'a executives and directors, in U.S. federal and state courts and in certain courts in other countries relating to the Spectre and Meltdown security vulnerabilities. As of July 25, 2018, 46 consumer class action lawsuits and three securities class action lawsuits have been filed. The consumer class action plaintiffs, who purport to represent various classes of end users of the company's products, generally claim to have been harmed by Intel's actions and/or omissions in connection with the security vulnerabilities and assert a variety of common law and statutory claims seeking monetary damages and equitable relief. Of the consumer class action lawsuits, 42 have been filed in the United States, two in Canada, and two in Israel. In April 2018, the United States Judicial Panel on Multidistrict Litigation ordered the U.S. consumer class action lawsuits consolidated for pretrial proceedings in the United States District Court for the District of Oregon. The lead securities class action plaintiffs, who purport to represent classes of acquirers of Intel stock between October 27, 2017 and January 9, 2018, generally allege that Intel and certain officers violated securities laws by making statements about Intel's products that were revealed to be false or misleading by the disclosure of the security vulnerabilities. The securities class actions are pending in the United States District Court for the Northern District of California. Additional lawsuits and claims may be asserted on behalf of customers and shareholders seeking monetary damages or other related relief. Intel said, "We dispute the claims and intends to defend the lawsuits vigorously. Given the procedural posture and the nature of these cases, including that the proceedings are in the early stages, that alleged damages have not been specified, that uncertainty exists as to the likelihood of a class or classes being certified or the ultimate size of any class or classes if certified, and that there are significant factual and legal issues to be resolved, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, that might arise from these matters." Intel Corporation designs, manufactures, and sells computer, networking, data storage, and communication platforms worldwide. The company operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INTEL CORP: McAfee Shareholders Seek to Amend Complaint ------------------------------------------------------- Intel 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 a hearing is set for September on plaintiffs' motion for leave to amend a class action complaint by McAfee, Inc. shareholders. On August 19, 2010, the company announced that it had agreed to acquire all of the common stock of McAfee, Inc. (McAfee) for $48.00 per share. Four McAfee shareholders filed putative class-action lawsuits in Santa Clara County, California Superior Court challenging the proposed transaction. The cases were ordered consolidated in September 2010. Plaintiffs filed an amended complaint that named former McAfee board members, McAfee, and Intel as defendants, and alleged that the McAfee board members breached their fiduciary duties and that McAfee and Intel aided and abetted those breaches of duty. The complaint requested rescission of the merger agreement, such other equitable relief as the court may deem proper, and an award of damages in an unspecified amount. In June 2012, the plaintiffs' damages expert asserted that the value of a McAfee share for the purposes of assessing damages should be $62.08. In January 2012, the court certified the action as a class action, appointed the Central Pension Laborers' Fund to act as the class representative, and scheduled trial to begin in January 2013. In March 2012, defendants filed a petition with the California Court of Appeal for a writ of mandate to reverse the class certification order; the petition was denied in June 2012. In March 2012, at defendants' request, the court held that plaintiffs were not entitled to a jury trial and ordered a bench trial. In April 2012, plaintiffs filed a petition with the California Court of Appeal for a writ of mandate to reverse that order, which the court of appeal denied in July 2012. In August 2012, defendants filed a motion for summary judgment. The trial court granted that motion in November 2012, and entered final judgment in the case in February 2013. In April 2013, plaintiffs appealed the final judgment. The California Court of Appeal heard oral argument in October 2017, and in November 2017, affirmed the judgment as to McAfee's nine outside directors, reversed the judgment as to former McAfee director and chief executive officer David DeWalt, Intel, and McAfee, and affirmed the trial court's ruling that the plaintiffs are not entitled to a jury trial. At a June 2018 case management conference following remand, the Superior Court set an October hearing date for any additional summary judgment motions that may be filed, and set trial to begin in December 2018. Plaintiffs subsequently filed a motion for leave to amend the complaint which is set for hearing in September 2018. Intel said, "Because the resolution of pretrial motions may materially impact the scope and nature of the proceeding, and because of uncertainties regarding theories that may be asserted at trial following the appellate court's remand of only certain claims in the proceeding and the extent of Intel's responsibility, if any, with respect to such claims, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, arising from this matter. We dispute the class-action claims and intend to continue to defend the lawsuit vigorously." Intel Corporation designs, manufactures, and sells computer, networking, data storage, and communication platforms worldwide. The company operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. JB HUNT: Continues to Defend California-Based Drivers' Suits ------------------------------------------------------------ J.B. Hunt Transport, 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 the company continues to defend the California-based drivers' class action lawsuits. The company is a defendant in certain class-action lawsuits in which the plaintiffs are current and former California-based drivers who allege claims for unpaid wages, failure to provide meal and rest periods, and other items. During the first half of 2014, the District Court in the lead class-action granted judgment in the company's favor with regard to all claims. The plaintiffs appealed the case to the United States Court of Appeals for the Ninth Circuit. In July 2017, the Ninth Circuit issued a Memorandum decision vacating the judgment in the company's favor and remanding the case to the District Court for further proceedings. The Ninth Circuit denied the company's Petition for Rehearing En Banc in November 2017. The company filed a Petition for a Writ of Certiorari in the Supreme Court of the United States seeking review of the Ninth Circuit's decision, but the Supreme Court denied the Petition in June 2018. The case is pending before the United States District Court for the Central District of California. Plaintiffs filed a motion for partial summary judgment on their claims on June 11, 2018. On July 23, 2018 the Court entered an Order granting in part and denying in part Plaintiffs' motion for partial summary judgment. The Court granted partial summary judgment on the issue of whether the company's activity-based compensation system violates California law concluding that it does to the extent the company's system fails to separately compensate drivers for rest breaks and other nonproductive time. However, the Court declined to enter summary judgment as to the company's liability on any of Plaintiffs' claims. The company also filed motions for partial summary judgment and to decertify the class on July 2, 2018. The Court has not yet entered an Order deciding the company's motions. The case is currently scheduled to begin trial in the third quarter of 2018. The overlapping claims in the other lawsuits remain stayed pending final resolution of the appellate process or a final decision in the lead class-action case. J.B. Hunt Transport said "We cannot reasonably estimate at this time the possible loss or range of loss, if any, that may arise from these lawsuits, however, in 2017, we recorded a $10 million reserve representing an amount we deem acceptable for the settlement of these claims." J.B. Hunt Transport, Inc. offers truckload freight and intermodal transportation services, logistics management, dry van, and e-business. The company was founded in 1969 and is based in Lowell, Arkansas. The company has operations in the United States, Canada, and Mexico. J.B. Hunt Transport, Inc. operates as a subsidiary of JB Hunt Transport Services Inc. JM SMUCKER: Faces Robinson Suit for Deceptive Marketing ------------------------------------------------------- SHELLY ROBINSON, individually and on behalf of all others similarly situated v. THE J.M. SMUCKER COMPANY, an Ohio corporation; and DOES 1 through 10, inclusive, Case No. 3:18-cv-04654-DMR (N.D. Cal., August 2, 2018), seeks to enjoin the Defendant's alleged ongoing deception of consumers by misrepresenting its "Crisco 100% Extra Virgin Olive Oil No-Stick Spray." The J.M. Smucker Company is an Ohio corporation with its principal place of business located in Orrville, Ohio. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Defendant manufactures, markets, and sells olive oil labeled as "Crisco 100% Extra Virgin Olive Oil No-Stick Spray." In reality, the Plaintiff alleges, extensive clinical testing conducted by a leading laboratory conclusively establishes that Crisco EVOO is not Extra Virgin Olive Oil.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS, A PROFESSIONAL CORPORATION 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com KAPSTONE PAPER: Rosenblatt Balks at Merger Deal with Westrock ------------------------------------------------------------- JORDAN ROSENBLATT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. KAPSTONE PAPER AND PACKAGING CORPORATION, ROGER W. STONE, MATTHEW KAPLAN, ROBERT J. BAHASH, JOHN M. CHAPMAN, PAULA H. J. CHOLMONDELEY, JONATHON R. FURER, DAVID G. GABRIEL, BRIAN GAMACHE, MATTHEW H. PAULL, MAURICE S. REZNIK, and DAVID P. STORCH, the Defendants, Case No. 1:18-cv-01190-UNA (D. Del., Aug. 6, 2018), seeks to enjoin Defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed merger transaction, and in the event Defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages. This action stems from a proposed transaction announced on January 29, 2018, pursuant to which KapStone Paper and Packaging Corporation will be acquired by Westrock Company and its wholly-owned subsidiary, Whiskey Holdco, Inc. On January 28, 2018, KapStone's Board of Directors caused the Company to enter into an agreement and plan of merger with Westrock. Pursuant to the terms of the Merger Agreement, if the Proposed Transaction is approved by KapStone's shareholders and completed, KapStone's stockholders will receive $35.00 in cash or 0.4981 shares of Holdco common stock for each share of the KapStone common stock they hold. On August 1, 2018, defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement, which scheduled a stockholder vote on the Proposed Transaction for September 6, 2018, omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Proxy Statement. KapStone Paper and Packaging is an American pulp and paper company based in Northbrook, Illinois. The company has kraft paper manufacturing facilities in Roanoke Rapids, NC, Cowpens, SC, North Charleston.[BN] The Plaintiff is represented by: Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com - and - Brian D. Long, Esq. Gina M. Serra, Esq. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295 5310 Facsimile: (302) 654 7530 E-mail: bdl@rl-legal.com gms@rl-legal.com KLEENMARK SERVICES: Class Deal in H. Marroquin's Suit Has Final OK ------------------------------------------------------------------ The United States District Court for the Western District of Wisconsin granted Plaintiffs' Unopposed Motion for Final Approval of the Collective and Class Settlement in the case captioned HELEN MARROQUIN, Individually and on behalf of all those similarly situated, Plaintiff, v. KLEENMARK SERVICES CORP., Defendant, No. 17-cv-426-jdp (W.D. Wis.). The court held a final fairness hearing in this collective and class action under the Fair Labor Standards Act and Wisconsin law. Plaintiff Helen Marroquin appeared by counsel, David Zoeller. Defendant KleenMark Services Corp. appeared by counsel, Robert Driscoll. For the reasons stated during the hearing and in the order preliminarily approving the settlement, the court finds that the settlement is fair, reasonable, and adequate. Accordingly, Plaintiff Helen Marroquin's unopposed motion for final approval of the collective and class action settlement is granted. A full-text copy of the District Court's June 21, 2018 Order is available at https://tinyurl.com/y8pbsv93 from Leagle.com. Helen Marroquin, Individually and on behalf of all those similarly situated, Plaintiff, represented by Caitlin Marie Madden -- cmadden@hq-law.com -- Hawks Quindel, S.C. & David C. Zoeller -- dzoeller@hq-law.com -- Hawks Quindel, S.C. KleenMark Services Corp., Defendant, represented by Robert S. Driscoll -- rdriscoll@reinhartlaw.com -- Reinhart Boerner Van Deuren s.c. KOHL'S CORPORATION: Urias Suit Asserts TCPA Violation ----------------------------------------------------- GABRIELA URIAS, individually and on behalf of all others similarly situated v. KOHL'S CORPORATION, Case No. 0:18-cv-61800-RNS (S.D. Fla., August 2, 2018), accuses the Defendant of violating the Telephone Consumer Protection Act. To harvest the cellular phone numbers of potential customers, the Defendant advertises single-use coupons to those who text message the Defendant with a keyword (e.g. "SAVE"), Ms. Urias tells the Court. Without their consent, upon receipt of a coupon request, the Defendant automatically opts consumers into its text messaging campaigns, she alleges. Kohl's is a Wisconsin Corporation with its principal office located in Menomonee Falls, Wisconsin. The Defendant is an American department store retail chain.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Ignacio J. Hiraldo, Esq. IJH LAW 14 NE First Ave., 10th Floor Miami, FL 33132 Telephone: (786) 351-8709 E-mail: ijhiraldo@ijhlaw.com LABORATORY CORP: Appeal in Patty Davis Suit Still Pending --------------------------------------------------------- Laboratory Corporation of America Holdings 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 appeal made by the plaintiff in the case entitled, Patty Davis v. Laboratory Corporation of America, et al., to the Florida Second District Court of Appeal is still pending. On August 31, 2015, the Company was served with a putative class action lawsuit, Patty Davis v. Laboratory Corporation of America, et al., filed in the Circuit Court of the Thirteenth Judicial Circuit for Hillsborough County, Florida. The complaint alleges that the Company violated the Florida Consumer Collection Practices Act by billing patients who were collecting benefits under the Workers' Compensation Statutes. The lawsuit seeks injunctive relief and actual and statutory damages, as well as recovery of attorney's fees and legal expenses. In April 2017, the Circuit Court granted the Company's Motion for Judgment on the Pleadings. The Plaintiff has appealed the Circuit Court's ruling to the Florida Second District Court of Appeal. The Company will vigorously defend the lawsuit. No further updates were provided in the Company's SEC report. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Bid to Dismiss Sequenom Shareholders Suit Pending ------------------------------------------------------------------ Laboratory Corporation of America Holdings 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 defendants motion to dismiss in the case, In re Sequenom, Inc. Shareholder Litig., remains pending. Prior to the Company's acquisition of Sequenom, Inc. (Sequenom) between August 15, 2016, and August 24, 2016, six putative class-action lawsuits were filed on behalf of purported Sequenom stockholders (captioned Malkoff v. Sequenom, Inc., et al., No. 16-cv-02054- JAH-BLM, Gupta v. Sequenom, Inc., et al., No. 16-cv-02084-JAH-KSC, Fruchter v. Sequenom, Inc., et al., No. 16-cv-02101- WQH-KSC, Asiatrade Development Ltd. v. Sequenom, Inc., et al., No. 16-cv-02113-AJB-JMA, Nunes v. Sequenom, Inc., et al., No. 16-cv-02128-AJB-MDD, and Cusumano v. Sequenom, Inc., et al., No. 16-cv-02134-LAB-JMA) in the U.S. District Court for the Southern District of California challenging the acquisition transaction. The complaints asserted claims against Sequenom and members of its Board of Directors (the Individual Defendants). The Nunes action also named the Company and Savoy Acquisition Corp. (Savoy), a wholly owned subsidiary of the Company, as defendants. The complaints alleged that the defendants violated Sections 14(e), 14(d)(4) and 20 of the Securities Exchange Act of 1934 by failing to disclose certain allegedly material information. In addition, the complaints in the Malkoff action, Asiatrade action, and the Cusumano action alleged that the Individual Defendants breached their fiduciary duties to Sequenom shareholders. The actions sought, among other things, injunctive relief enjoining the merger. On August 30, 2016, the parties entered into a Memorandum of Understanding (MOU) in each of the above-referenced actions. On September 6, 2016, the Court entered an order consolidating for all pre-trial purposes the six individual actions under the caption In re Sequenom, Inc. Shareholder Litig., Lead Case No. 16-cv-02054-JAH-BLM, and designating the complaint from the Malkoff action as the operative complaint for the consolidated action. On November 11, 2016, two competing motions were filed by two separate stockholders (James Reilly and Shikha Gupta) seeking appointment as lead plaintiff under the terms of the Private Securities Litigation Reform Act of 1995. On June 7, 2017, the Court entered an order declaring Mr. Reilly as the lead plaintiff and approving Mr. Reilly's selection of lead counsel. The parties agree that the MOU has been terminated. The Plaintiffs filed a Consolidated Amended Class Action Complaint on July 24, 2017, and the Defendants filed a Motion to Dismiss, which remains pending. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Consolidation of Bouffard & Anderson Cases Sought ------------------------------------------------------------------ Laboratory Corporation of America Holdings 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 plaintiffs filed a motion for leave to file an amended complaint, which would consolidate the Victoria Bouffard, et al. v. Laboratory Corporation of America Holdings and Sheryl Anderson, et al. v. Laboratory Corporation of America Holdings actions if granted. On March 10, 2017, the Company was served with a putative class action lawsuit, Victoria Bouffard, et al. v. Laboratory Corporation of America Holdings, filed in the U.S. District Court for the Middle District of North Carolina. The complaint alleges that the Company's patient list prices unlawfully exceed the rates negotiated for the same services with private and public health insurers in violation of various state consumer protection laws. The lawsuit also alleges breach of implied contract or quasi-contract, unjust enrichment, and fraud. The lawsuit seeks statutory, exemplary, and punitive damages, injunctive relief, and recovery of attorney's fees and costs. In May 2017, the Company filed a Motion to Dismiss Plaintiffs' Complaint and Strike Class Allegations; this motion was granted in March 2018 without prejudice. On October 10, 2017, a second putative class action lawsuit, Sheryl Anderson, et al. v. Laboratory Corporation of America Holdings, was filed in the U.S. District Court for the Middle District of North Carolina. The complaint contains similar allegations and seeks similar relief to the Bouffard complaint, and adds additional counts regarding state consumer protection laws. On May 11, 2018, the Plaintiffs filed a motion for leave to file an amended complaint, which would consolidate the Bouffard and Anderson actions if granted. The Company will vigorously defend the lawsuits. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Cunningham Class Action Underway ------------------------------------------------- Laboratory Corporation of America Holdings 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 itself in a class action suit entitled, Craig Cunningham, et al. v. Laboratory Corporation of America Holdings d/b/a LabCorp. On April 2, 2018, the Company was served with a putative class action lawsuit, Craig Cunningham, et al. v. Laboratory Corporation of America Holdings d/b/a LabCorp, filed in the U.S. District Court for the Middle District of North Carolina. The lawsuit alleges that the Company violated the TCPA by contacting Plaintiff at least twice on his cell phone without his prior consent using a prerecorded or artificial voice. The lawsuit seeks actual damages for each violation, subject to trebling under the TCPA, and injunctive relief. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Settlement in Principle Reached in Sandusky Suit ----------------------------------------------------------------- Laboratory Corporation of America Holdings 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 parties in Sandusky Wellness Center, LLC, et al. v. MEDTOX Scientific, Inc., et al., have reached a settlement in principle, which will require Court approval. On August 24, 2012, the Company was served with a putative class action lawsuit, Sandusky Wellness Center, LLC, et al. v. MEDTOX Scientific, Inc., et al., filed in the U.S. District Court for the District of Minnesota. The lawsuit alleges that on or about February 21, 2012, the defendants violated the U.S. Telephone Consumer Protection Act (TCPA) by sending unsolicited facsimiles to Plaintiff and more than 39 other recipients without the recipients' prior express invitation or permission. The lawsuit seeks the greater of actual damages or the sum of $0.0005 for each violation, subject to trebling under the TCPA, and injunctive relief. In September of 2014, Plaintiff's Motion for Class Certification was denied. In January of 2015, the Company's Motion for Summary Judgment on the remaining individual claim was granted. Plaintiff filed a notice of appeal. On May 3, 2016, the U.S. Court of Appeals for the Eighth Circuit issued its decision and order reversing the District Court's denial of class certification. The Eighth Circuit remanded the matter for further proceedings. On December 7, 2016, the District Court granted the Plaintiff's renewed Motion for Class Certification. The parties have reached a settlement in principle, which will require Court approval. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Still Defends Maria Gonzalez Class Action ---------------------------------------------------------- Laboratory Corporation of America Holdings 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 company continues to defend itself in a putative class action suit entitled, Maria T. Gonzalez, et al. v. Examination Management Services, Inc. and Laboratory Corporation of America Holdings. On August 1, 2017, the Company was served with a putative class action lawsuit, Maria T. Gonzalez, et al. v. Examination Management Services, Inc. and Laboratory Corporation of America Holdings, filed against the Company in the U.S. District Court for the Southern District of California. The complaint alleges that the Company misclassified phlebotomists as independent contractors through an arrangement with the co-Defendant temporary staffing agency. The complaint further alleges that the Company violated the California Labor Code and California Business and Professions Code by failing to pay minimum wage, failing to pay for all hours worked, failing to pay for all wages owed upon termination, and failing to provide accurate itemized wage statements. The lawsuit seeks monetary damages, civil penalties, injunctive relief, and recovery of attorney's fees and costs. The Company will vigorously defend the lawsuit. No further updates were provided in the Company's SEC report. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. Laboratory Corporation of America Holdings was founded in 1971 and is headquartered in Burlington, North Carolina. LANSING TRADE: Budicak Files Antitrust Class Action in Illinois --------------------------------------------------------------- Budicak, Inc., on behalf of itself and all others similarly situated v. Lansing Trade Group, LLC, and John Does Nos. 1-6, Case No. 1:18-cv-04966 (N.D. Ill., July 20, 2018), is brought against the Defendants for violation of the Commodity Exchange Act, the Sherman Antitrust Act and the common law. The action arises from Defendants' alleged unlawful and intentional manipulation of wheat futures and options contracts traded on the Chicago Board of Trade from at least February 1, 2015 through March 31, 2015. The Plaintiff Budicak, Inc. is an Illinois corporation with its principal place of business in Oak Brook, Illinois. The Defendant Lansing Trade Group, LLC is a Delaware limited liability company, with principal place of business in Overland Park, Kansas and offices and facilities all over the United States, that acts as a commodity merchandising firm, largely focused on buying, handling, storing, and selling physical grain, including wheat. [BN] The Plaintiff is represented by: Anthony F. Fata, Esq. Jennifer W. Sprengel, Esq. Brian P. O'Connell, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 150 S. Wacker Drive, Suite 3000 Chicago, IL 60606 Tel: (312) 782-4880 LIBERTY MUTUAL: Richelson Suit Moved to Northern District of Ohio ----------------------------------------------------------------- The class action lawsuit titled Murray Richelson, Individually and on behalf of all others similarly situated, the Plaintiff, v. Liberty Mutual Insurance Company, the Defendant, Case No. 18-cv-01042, was removed from the Lake County, Ohio Common Pleas, to the U.S. District Court for the Northern District of Ohio (Cleveland) on Aug. 6, 2018. The Northern District of Ohio Court Clerk assigned Case No. 1:18-cv-01801-PAG to the proceeding. The case is assigned to the Hon. Judge Patricia A. Gaughan. Liberty Mutual is an American diversified global insurer, and the fourth-largest property and casualty insurer in the United States.[BN] The Plaintiff is represented by: James A. DeRoche, Esq. Stuart I. Garson, Esq. GARSON JOHNSON 1600 Midland Bldg. 101 Prospect Avenue, W Cleveland, OH 44115 Telephone: (216) 696 9330 Facsimile: (216) 696 8558 E-mail: jderoche@garson.com garson@garson.com - and - Patrick J. Perotti, Esq. DWORKEN & BERNSTEIN-PAINESVILLE 60 South Park Place Painesville, OH 44077 Telephone: (440) 352 3391 Facsimile: (440) 352 3469 E-mail: pperotti@dworkenlaw.com The Defendant is represented by: Dustin M. Dow, Esq. Keesha N. Warmsby, Esq. Rodger L. Eckelberry, Esq. BAKER & HOSTETLER-CLEVELAND 127 Public Square, Ste. 2000 Cleveland, OH 44114 Telephone: (216) 861 7098 Facsimile: (216) 696 0740 E-mail: ddow@bakerlaw.com kwarmsby@bakerlaw.com reckelberry@bakerlaw.com LOS ANGELES, CA: Certification of Vehicle Owners Class Sought ------------------------------------------------------------- In the lawsuit captioned LEONARDO GONZALEZ-TZITA, an individual, ESTEBAN DIEGO ESTEBAN, an individual, SIDONIO LOMELI, and individual and all as class representatives, the Plaintiff, vs. CITY OF LOS ANGELES, et al., the Defendants, Case No. 2:16-cv-00194-FMO-E (C.D. Cal.), the Plaintiff will move the Court on September 20, 2018, for an order: 1. certifying a class defined as: "all registered vehicle owners whose vehicles were seized and impounded by the City of Los Angeles at any time from January 11, 2014, through February 15, 2017, under the authority of Cal. Veh. Code section 21100.4"; and 2. preliminarily approving Class Action Settlement Agreement and related forms. Attorneys for Plaintiff: Donald W. Cook, Esq. ATTORNEY AT LAW 3435 Wilshire Blvd., Suite 2910 Los Angeles, CA 90010 Telephone: (213) 252 9444 Facsimile: (213) 252 0091 E-mail: manncook@earthlink.net LOS ANGELES, CA: Vandenberg Seeks to Recover OT Pay Under FLSA -------------------------------------------------------------- PIETER VANDENBERG, on behalf of himself and all similarly situated individuals v. COUNTY OF LOS ANGELES, Case No. 5:18-cv-01625 (C.D. Cal., August 2, 2018), is brought pursuant to the provisions of the Fair Labor Standards Act to recover alleged unpaid overtime and other compensation. The action arises from the Defendant's failure to include all statutorily required forms of compensation in the "regular rate" used to calculate overtime compensation for Plaintiff and all similarly situated individuals, Mr. Vandenberg alleges. The County of Los Angeles is a political subdivision of the state of California, and employed the Plaintiff.[BN] The Plaintiff is represented by: Dieter C. Dammeier, Esq. DAMMEIER LAW FIRM 9431 Haven Avenue, Suite 232 Rancho Cucamonga, CA 91730 Telephone: (909) 240-9525 Facsimile: (909) 912-1901 E-mail: Dieter@DammeierLaw.com - and - David E. Mastagni, Esq. Isaac S. Stevens, Esq. Ace T. Tate, Esq. Ian B. Sangster, Esq. MASTAGNI HOLSTEDT A Professional Corporation 1912 "I" Street Sacramento, CA 95811 Telephone: (916) 446-4692 Facsimile: (916) 446-2857 E-mail: davidm@mastagni.com istevens@mastagni.com atate@mastagni.com isangster@mastagni.com LOS LUNAS: Must Produce Info on Non-Jackson Class Members --------------------------------------------------------- The United States District Court for the District of New Mexico granted Plaintiffs' Motion to Compel Production of documents in the case captioned WALTER STEPHEN JACKSON, et al., Plaintiffs, v. LOS LUNAS CENTER FOR PERSONS with DEVELOPMENTAL DISABILITIES, et al., Defendants, ARC of NEW MEXICO, Intervenors, MARY TERRAZAS, et al., Intervenors pro se, CIV No. 87-0839JP/KBM (D.N.M.). In 1990, the Honorable James A. Parker, in the case Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243, 1299 (D.N.M. 1990), rev'd in part, 964 F.2d 980(10th Cir. 1992), expressly found that the Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory. This finding came in his conclusions of law section regarding statutory discrimination claims brought pursuant to Section 504 of the Rehabilitation Act. Judge Parker further found that where reasonable accommodations in community programs can be made, defendants' failure to integrate severely handicapped residents into community programs which presently serve less severely handicapped residents violates Section 504. He additionally concluded that Defendants were violating class members' substantive due process rights. It is against this backdrop that this Court now addresses the discovery dispute at hand in preparation for the trial on the remanded issues that Judge Parker will hold next Spring. The Plaintiffs seek production of certain information and data about non-Jackson class members to which the Defendants have objected. The Plaintiffs contend that they require information about non-class members to demonstrate a continuing violation of Section 504 under the theory that the State's policies and practices discriminate against the more severely disabled while accommodating the needs of the less severely disabled. The Defendants counter that a showing of disparate impact is not the applicable standard for a Section 504 claim; rather, the Defendants argue that meaningful access to services forms the proper inquiry for such a claim by class members. Thus, the Defendants maintain, information regarding services provided to non-class members is simply irrelevant. As to each of the categories of information sought as to non-class members, the Court will balance the relevance asserted by the Plaintiffs (as to alleged disparate impacts in the delivery of services and/or the showing of a durable remedy after court oversight is terminated) against the asserted burdens of production cited by the Defendants. DHI Incident Management Database on Abuse, Neglect, and Exploitation (ANE) With the caveat as to the validity of assuming non-class members truly represent a lesser disabled population, the Court finds that the information is discoverable for analysis of disparate impact and the durability of the system as a whole to address ANE issues. The Court is unpersuaded by the Defendants' argument that it would be unduly burdensome to produce the database as it exists. Any confidentiality issues can be addressed by the entry of a protective order, and would not require the State to expend its resources redacting information. DHI Quality Management Database on Provider Quality Review The Court finds that this information may be relevant in analyzing alleged disparity in the provision of services among individuals with varying levels of severity of disability. For instance, a remedy in place for the Jackson class members that is unavailable for non-class members may inform as to the system-wide durability of the remedies provided by the Defendants. The Court will order production of the database pursuant to a confidentiality order. Databases relating to Employment Support The Plaintiffs reference a DVR Database, DDSD databases on day and employment service, and other databases regarding Strike Force, SELN or wage and hour reports, and characterize the information as essential in demonstrating disparity in service depending on the severity level of disability. Unlike the previous databases for which discovery is ordered, the Court has no firm understanding of what databases truly exist in this area and is less able to articulate their relevance or ascertain the burden in finding and producing the requested data. Therefore, the Court, if needed, will meet with counsel, who will bring their staff members with the technical expertise to better inform the discovery decision-making process to assure proportionality. DDSD Database on Aspiration The Plaintiffs say they need this information to ascertain the status of aspiration risk management for class members. Clearly, this goes to the substantive due process issues related to healthcare and meaningful access to services. The relevance of non-class member information, however, is not as obvious. It is certainly not obvious to the Court that the factors affecting the level of risk for aspiration pneumonia can easily correlate to generalized categories of severe or less severe developmental disability. Thus, the Court orders disclosure of this information as to Jackson class members only. DDSD Database on General Events Reporting (GER) The GER database in Therap tracks injuries and incidents, and DDSD mandates that Providers enter that information. With the same caveat, the Court finds the information including both class members and non-class members potentially relevant and discoverable. Moreover, it appears that the Defendants can produce this database pursuant to an agreed upon protective confidentiality order without undue burden. DOH Databases on Supports Intensity Scale (SIS) Despite their position that this information is irrelevant, the Defendants indicate that they will comply with my previous oral order to produce the SIS group data. As the Court explained when it conferred, the Court believe this information will be of assistance to both sides in helping Judge Parker to assess the validity of any comparison data derived from production of the non-class member information. DDSD Database on Therap The maintenance of consistent, complete and up-to-date medical records of Jackson class members has been a concern for the Court for decades in assuring their health and safety. The Plaintiffs want any Therap audit reports as to non-class members' medical records regarding the accuracy, timeliness and completeness of those records for comparison purposes. If such a Therap audit exists, Defendants are to produce it pursuant to a protective confidentiality order. Medicaid and DDSD Databases on Durable Medical Equipment The Plaintiffs relate that in the past, the Jackson Coordinating Committee received periodic reports from DOH's Clinical Services Bureau regarding gasps in therapy services and from Specialty Services regarding delays in providing equipment and services. If such spreadsheets or reports have been prepared regarding non-class members, the Defendants will provide that information to the Plaintiffs for their assessment of any differences relating to severity level of disability. A full-text copy of the District Court's July 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yb8jw3ao from Leagle.com. Walter Stephen Jackson, by his parents and next friends, Walter and Helen Jackson, Steve Nunez, by his guardian and next friend, Mary Kathryn Reed, Mildred Tsosie, by her next friend, Polly Arango, Mary Katherine Nowak, by her next friend, James W. Ellis, Esquire, Lillian Willmon, by her next friend, Arthur Grumblatt, Andra Martinez, by her next friend, Paula Duvall, Clinton Heath, by his next friend, Belva Heath, Shawn Heath, by next friend, Belva Heath, Richard Stanfield, by his father and next friend, The Reverend Clyde Stanfield, Joseph Gonzales, by his mother and next friend, Charlotte Gonzales, Sean McHenry, by his next friend, Robert Desiderio, Esquire, Alfred Shirley, by his next friend, Frederick Hart, Esquire, James Fritche, by his next friend, Sally Dehon, Roseann Crockett, by her next friend, Robert McNeill, Esquire, Andre Armenta, by his mother and next friend, Loretta Armenta, Kelli Van Curen, by her parents and next friends, Ted and Sallie Van Curen, Lacey Walker, by her mother and next friend, Sandra Walker, Kim Lautenschlager, by her mother and next friend, Dale Lautenschlager, William Thomas, by his parents and next friends, James and Elizabeth Thomas; on behalf of themselves and all others similarly situated & Developmentally Disabled New Mexicans, Inc, Supporters of, on behalf of its members, Plaintiffs, represented by Ann Tilford McCartney -- asims98891@aol.com -- Cathy Costanzo -- ccostanzo@cpr−ma.org -- Center for Public Representation, Nancy Koenigsberg -- nkoenigsberg@drnm.org -- Disability Rights New Mexico, Peter Cubra -- pcubra@qwestoffice.net -- Law Office of Peter Cubra, Philip B. Davis -- phil@davislawnm.com -- Philip B. Davis, Attorney at Law,Steven Schwartz -- sschwartz@cpr−ma.org -- Center for Public Representation & Tim Gardner -- tgardner@drnm.org -- Protection & Advocacy System. Fort Stanton Hospital and Training School, All State Defendants as listed on manual docket, Los Lunas Center for Persons with Developmental Disabilities & Jack Callaghan, New Mexico Department of Health, Secretary of, Defendants, represented by Jerry A. Walz , Walz and Associates. New Mexico Human Services Department, Defendant, represented by Paul R. Ritzma & Jerry A. Walz, Walz and Associates. ARC of New Mexico, Intervenor, represented by Maureen A. Sanders , Sanders & Westbrook, PC. MAGELLAN HEALTH: Court Denies Bid to Dismiss M. Deakin's FLSA Suit ------------------------------------------------------------------- The United States District Court for the District of New Mexico denied Defendant's Motion to Dismiss Plaintiffs' Class Action Allegations in Her First Amended Complaint in the case captioned MAUREEN DEAKIN, AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. MAGELLAN HEALTH, INC., MAGELLAN HEALTHCARE, INC., MAGELLAN HEALTH SERVICES OF NEW MEXICO INC., MERIT BEHAVIORAL CORPORATION, & MAGELLAN HSRC, INC., Defendants, No. 17-CV-0773-WJ-KK (D.N.M.). Plaintiff Maureen Deakin is suing the Defendants to recover unpaid overtime wages that she alleges the Defendants failed to pay her and other employees in accordance with the federal and state law. The relevant portion of the Fair Labor Standards Act (FLSA) requires that employees who work more than forty hours in a week are compensated at a rate of at least than one and one-half times the employee's regular hourly wage. The district court will deny a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss if the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. The Defendants rely on the district courts' dismissals of the plaintiff's collective action claims in Cooper and Flores, but those cases are distinguishable because the parameters of the classes were overly broad, such that they did not provide fair notice to the defendants of the class members. In Cooper v. Coil Chem, LLC, No. CIV-16-473-D, 2016 U.S. Dist. LEXIS 169884, at *11-12 (W.D.), the proposed class consisted of all individuals employed by Coil Chem, LLC in the past 3 years who were paid a salary and a job bonus. In Flores v. Act Event Servs., Inc., 55 F.Supp.3d 928, 940 (N.D. Tex. 2014), the complaint alleged that Named Plaintiffs seek to represent a nationwide class of all persons who worked or work for the Defendants and who were/are subject to Defendants' unlawful pay practices and policies at any point from three years prior to the filing of the instant matter to the present. Comparatively, the Plaintiff here provides job descriptions, including specific job titles and duties, for her proposed class. She asserts that the job duties of class members include Data Collection, Data Entry, Care Utilization, Plan Education, Care Coordination, or other similar duties related to care management or utilization review. Members of the proposed class must have been employed for at least one week by the Defendants over the past three years, been paid on a salary basis by the Defendants, and been engaged in nonsupervisory work. The Plaintiff excludes the job titles Military and Family Life Counselor and Military and Family Life Advocate. The Court finds that the Plaintiff has sufficiently defined the class with these specific criteria so as to provide the Defendants with fair notice of the putative class. A full-text copy of the District Court's June 21, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y7y5vtqg from Leagle.com. Maureen Deakin, and all others similarly situated, Plaintiff, represented by Jack L. Siegel -- jack@siegellawgroup.biz -- Siegel Law Group PLLC, Travis Andrew Gasper, Lee & Braziel, LLP & J. Derek Braziel, Lee & Braziel LLP. Magellan Health, Inc., Magellan Healthcare, Inc., Magellan Health Services of New Mexico, Inc., Merit Behavioral Care Corporation & Magellan HSRC, Inc., Defendants, represented by Mark D. Temple -- mtemple@reedsmith.com -- Reed Smith LLP, Randy S. Bartell -- abartell@montand.com -- Montgomery & Andrews, P.A. & Paige T. Bennett -- pbennett@reedsmith.com -- Reed Smith, LLP, pro hac vice. MALDEN TOWERS: Hsueh Sues over Tenants' Security Deposits --------------------------------------------------------- CHIH-PEI HSUEH, on behalf of himself and all others similarly situated, the Plaintiff, v. MALDEN TOWERS REALTY CORP., and CARABETTA MANAGEMENT CO., the Defendants, Case No. 18-22-64 (Mass. Super. Ct., Aug. 7, 2018), seeks to recover damages of three times the security deposit and the statutory interest to which Plaintiff is entitled for the security deposit, (both of which are non-discretionary statutory damages under the Security Deposit Law), as well as costs and reasonable attorneys' fees. The Plaintiff brings this action in order to stop Defendants' unlawful practices of failing to properly withhold and/or promptly return residential tenants' security deposits in violation of G.L. c. 186, section l5B. Defendants fail to return tenants' security deposits within the required 30-day deadline imposed by the Security Deposit Law or pay the interest required by that statute.[BN] The Plaintiff is represented by: Jo Gardner, Esq. Gardner & Rosenberg, P.C. One State St., Fourth Floor Boston, MA 02109 Telephone: (617) 390 7570 E-mail: josh@gardnerrosenberg.com - and - Edward Rice, Esq. 45 Pierce Street Malden, MA 02148 Telephone: (617) 475 0909 E-mail: ed@edricelaw.com - and – Christopher Saccardi, Esq. 58 Day St., 441538 Somerville, MA 02144 Telephone: (617) 500 3198 E-mail: chris@attorneysaccardi.com MARK PROPCO: Cedric Bishop Sues Mark Hotel in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Mark Propco LLC. The case is captioned as Cedric Bishop on behalf of himself and all others similarly situated, the Plaintiff, v. Mark Propco LLC doing business as: The Mark Hotel, the Defendant, Case No. 1:18-cv-07067 (S.D.N.Y., Aug. 6, 2018).[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 MASTERCARD INC: Accrues $947M Liability in Interchange Fees Suit ---------------------------------------------------------------- Mastercard Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company has an accrued a liability of $947 million as a reserve for both the merchant class litigation and the filed and anticipated opt-out merchant cases. In June 2005, the first of a series of complaints were filed on behalf of merchants (the majority of the complaints were styled as class actions, although a few complaints were filed on behalf of individual merchant plaintiffs) against Mastercard International, Visa U.S.A., Inc., Visa International Service Association and a number of financial institutions. Taken together, the claims in the complaints were generally brought under both Sections 1 and 2 of the Sherman Act, which prohibit monopolization and attempts or conspiracies to monopolize a particular industry, and some of these complaints contain unfair competition law claims under state law. The complaints allege, among other things, that Mastercard, Visa, and certain financial institutions conspired to set the price of interchange fees, enacted point of sale acceptance rules (including the no surcharge rule) in violation of antitrust laws and engaged in unlawful tying and bundling of certain products and services. The cases were consolidated for pre-trial proceedings in the U.S. District Court for the Eastern District of New York in MDL No. 1720. The plaintiffs filed a consolidated class action complaint that seeks treble damages. In July 2006, the group of purported merchant class plaintiffs filed a supplemental complaint alleging that Mastercard's initial public offering of its Class A Common Stock in May 2006 (the "IPO") and certain purported agreements entered into between Mastercard and financial institutions in connection with the IPO: (1) violate U.S. antitrust laws and (2) constituted a fraudulent conveyance because the financial institutions allegedly attempted to release, without adequate consideration, Mastercard's right to assess them for Mastercard's litigation liabilities. The class plaintiffs sought treble damages and injunctive relief including, but not limited to, an order reversing and unwinding the IPO. In February 2011, Mastercard and Mastercard International entered into each of: (1) an omnibus judgment sharing and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa International Service Association and a number of financial institutions; and (2) a Mastercard settlement and judgment sharing agreement with a number of financial institutions. The agreements provide for the apportionment of certain costs and liabilities which Mastercard, the Visa parties and the financial institutions may incur, jointly and/or severally, in the event of an adverse judgment or settlement of one or all of the cases in the merchant litigations. Among a number of scenarios addressed by the agreements, in the event of a global settlement involving the Visa parties, the financial institutions and Mastercard, Mastercard would pay 12% of the monetary portion of the settlement. In the event of a settlement involving only Mastercard and the financial institutions with respect to their issuance of Mastercard cards, Mastercard would pay 36% of the monetary portion of such settlement. In October 2012, the parties entered into a definitive settlement agreement with respect to the merchant class litigation (including with respect to the claims related to the IPO) and the defendants separately entered into a settlement agreement with the individual merchant plaintiffs. The settlements included cash payments that were apportioned among the defendants pursuant to the omnibus judgment sharing and settlement sharing agreement described above. Mastercard also agreed to provide class members with a short-term reduction in default credit interchange rates and to modify certain of its business practices, including its "no surcharge" rule. The court granted final approval of the settlement in December 2013, and objectors to the settlement appealed that decision to the U.S. Court of Appeals for the Second Circuit. In June 2016, the court of appeals vacated the class action certification, reversed the settlement approval and sent the case back to the district court for further proceedings. The court of appeals' ruling was based primarily on whether the merchants were adequately represented by counsel in the settlement. As a result of the appellate court ruling, the district court divided the merchants' claims into two separate classes -- monetary damages claims (the "Damages Class") and claims seeking changes to business practices (the "Rules Relief Class"). The court appointed separate counsel for each class. Prior to the reversal of the settlement approval, merchants representing slightly more than 25% of the Mastercard and Visa purchase volume over the relevant period chose to opt out of the class settlement. Mastercard had anticipated that most of the larger merchants who opted out of the settlement would initiate separate actions seeking to recover damages, and over 30 opt-out complaints have been filed on behalf of numerous merchants in various jurisdictions. Mastercard has executed settlement agreements with a number of opt-out merchants. Mastercard believes these settlement agreements are not impacted by the ruling of the court of appeals. The defendants have consolidated all of these matters (except for one state court action) in front of the same federal district court that approved the merchant class settlement. In July 2014, the district court denied the defendants' motion to dismiss the opt-out merchant complaints for failure to state a claim. In June 2018, the parties to the Damages Class litigation reached an agreement in principle to resolve the Damages Class claims. The parties are now negotiating the terms of a formal class settlement agreement, which Mastercard anticipates will be finalized and executed during the third quarter of 2018 and which would be subject to court approval. As a result of the agreement in principle with the Damages Class, Mastercard increased its reserve during the second quarter of 2018 by $210 million for both the merchant class litigation and the filed and anticipated opt-out merchant cases. Neither the agreement in principle nor any potential settlement agreement relates to, or will relate to, the Rules Relief Class claims. As of June 30, 2018, Mastercard had accrued a liability of $947 million as a reserve for both the merchant class litigation and the filed and anticipated opt-out merchant cases. As of June 30, 2018 and December 31, 2017, Mastercard had $549 million and $546 million, respectively, in a qualified cash settlement fund related to the merchant class litigation and classified as restricted cash on its consolidated balance sheet. Mastercard believes the reserve for both the merchant class litigation and the filed and anticipated opt-out merchants represents its best estimate of its probable liabilities in these matters at June 30, 2018. The portion of the accrued liability relating to both the opt-out merchants and the merchant class litigation settlement does not represent an estimate of a loss, if any, if the matters were litigated to a final outcome. Mastercard cannot estimate the potential liability if that were to occur. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Class Cert. Bid Nixed in Shift Fraud Liability Case ------------------------------------------------------------------- Mastercard Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the district court handling the shift fraud liability litigation has denied the plaintiffs' motion for class certification. In March 2016, a proposed U.S. merchant class action complaint was filed in federal court in California alleging that Mastercard, Visa, American Express and Discover (the "Network Defendants"), EMVCo, and a number of issuing banks (the "Bank Defendants") engaged in a conspiracy to shift fraud liability for card present transactions from issuing banks to merchants not yet in compliance with the standards for EMV chip cards in the United States (the "EMV Liability Shift"), in violation of the Sherman Act and California law. Plaintiffs allege damages equal to the value of all chargebacks for which class members became liable as a result of the EMV Liability Shift on October 1, 2015. The plaintiffs seek treble damages, attorney's fees and costs and an injunction against future violations of governing law, and the defendants have filed a motion to dismiss. In September 2016, the court denied the Network Defendants' motion to dismiss the complaint, but granted such a motion for EMVCo and the Bank Defendants. In May 2017, the court transferred the case to New York so that discovery could be coordinated with the U.S. merchant class interchange litigation described above. In March 2018, the district court denied the plaintiffs' motion for class certification, while permitting them to re-file. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Complaints on ATM Surcharge Rule Still Ongoing -------------------------------------------------------------- Mastercard Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend a class action lawsuit related to ATM Surcharge Fees. In October 2011, a trade association of independent Automated Teller Machine ("ATM") operators and 13 independent ATM operators filed a complaint styled as a class action lawsuit in the U.S. District Court for the District of Columbia against both Mastercard and Visa (the "ATM Operators Complaint"). Plaintiffs seek to represent a class of non-bank operators of ATM terminals that operate in the United States with the discretion to determine the price of the ATM access fee for the terminals they operate. Plaintiffs allege that Mastercard and Visa have violated Section 1 of the Sherman Act by imposing rules that require ATM operators to charge non-discriminatory ATM surcharges for transactions processed over Mastercard's and Visa's respective networks that are not greater than the surcharge for transactions over other networks accepted at the same ATM. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. Subsequently, multiple related complaints were filed in the U.S. District Court for the District of Columbia alleging both federal antitrust and multiple state unfair competition, consumer protection and common law claims against Mastercard and Visa on behalf of putative classes of users of ATM services (the "ATM Consumer Complaints"). The claims in these actions largely mirror the allegations made in the ATM Operators Complaint, although these complaints seek damages on behalf of consumers of ATM services who pay allegedly inflated ATM fees at both bank and non-bank ATM operators as a result of the defendants' ATM rules. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. In January 2012, the plaintiffs in the ATM Operators Complaint and the ATM Consumer Complaints filed amended class action complaints that largely mirror their prior complaints. In February 2013, the district court granted Mastercard's motion to dismiss the complaints for failure to state a claim. On appeal, the Court of Appeals reversed the district court's order in August 2015 and sent the case back for further proceedings. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Florida Court Shelves Junk Fax Suit --------------------------------------------------- Mastercard Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that a Florida court has granted Mastercard's motion to stay proceedings in a class action lawsuit until the Federal Communications Commission makes a decision on the application of the Telephone Consumer Protection Act ("TCPA") to online fax services. Mastercard is a defendant in a TCPA class action pending in Florida. The plaintiffs are individuals and businesses who allege that approximately 381,000 unsolicited faxes were sent to them advertising a Mastercard co-brand card issued by First Arkansas Bank ("FAB"). The TCPA provides for uncapped statutory damages of $500 per fax. Mastercard has asserted various defenses to the claims, and has notified FAB of an indemnity claim that it has (which FAB has disputed). In June 2018, the court granted Mastercard's motion to stay the proceedings until the FCC makes a decision on the application of the TCPA to online fax services. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MASTERCARD INC: Still Awaits Court OK on Canadian POS Case Accord ----------------------------------------------------------------- Mastercard Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company's class settlement agreement to resolve all of the Canadian class action litigation related to point-of-sale (POS) acceptance rules is still subject to court approval in each applicable province. In December 2010, a proposed class action complaint was commenced against Mastercard in Quebec on behalf of Canadian merchants. The suit essentially repeated the allegations and arguments of a previously filed application by the Canadian Competition Bureau to the Canadian Competition Tribunal (dismissed in Mastercard's favor) concerning certain Mastercard rules related to point-of-sale acceptance, including the "honor all cards" and "no surcharge" rules. The Quebec suit sought compensatory and punitive damages in unspecified amounts, as well as injunctive relief. In the first half of 2011, additional purported class action lawsuits were commenced in British Columbia and Ontario against Mastercard, Visa and a number of large Canadian financial institutions. The British Columbia suit sought compensatory damages in unspecified amounts, and the Ontario suit sought compensatory damages of $5 billion on the basis of alleged conspiracy and various alleged breaches of the Canadian Competition Act. Additional purported class action complaints were commenced in Saskatchewan and Alberta with claims that largely mirror those in the other suits. In June 2017, Mastercard entered into a class settlement agreement to resolve all of the Canadian class action litigation. The settlement, which is subject to court approval in each applicable province, requires Mastercard to make a cash payment and modify its "no surcharge" rule. During the first quarter of 2017, the Company recorded a provision for litigation of $15 million related to this matter. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. The company was founded in 1966 and is headquartered in Purchase, New York. MATHERNE HOLDINGS: Gerstenhaber Seeks to Certify Class ------------------------------------------------------ In the lawsuit entitled SHARON GERSTENHABER, individually and on behalf of all others similarly situated, the Plaintiff, vs. MATHERNE HOLDINGS, INC., a Delaware corporation, the Defendant, Case No. 0:18-cv-61213-WPD (S.D. Fla.), the Hon Judge William P. Dimtriouleas entered order: 1. certifying a class of: "all persons within the United States who, within the four years prior to the filing of the Complaint; were sent a text message; from Defendant or anyone on Defendant's behalf; to said person's cellular telephone number; using the same equipment, or type of equipment, used to text Plaintiff's cellular telephone; without the recipient's prior express consent" 2. certifying Sharone Gerstenhaber as representative of the Class; 3. certifying Hiraldo P.A. and IJH Law as Class Counsel; 4. directing class counsel to propose the method and form of class notice within 90 days; and 5. directing Clerk to send via U.S. mail a copy of this Order to Defendant Matherne Holdings, Inc. MDL 2741: King et al. vs Monsanto Consolidated in N.D. Calif. ------------------------------------------------------------- JAMES O. KING, III, and CARA M. KING, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 3:18-cv-00416, was transferred from the U.S. District Court for the Western District of Kentucky to the U.S. District Court for the Northern District of California (San Francisco) on Aug. 6, 2018. The District Court Clerk assigned Case No. 3:18-cv-04690-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The King case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] The Plaintiff is represented by: Jennifer A. Moore, Esq. Ashton Rose Smith, Esq. GROSSMAN & MOORE, PLLC One Riverfront Plaza 401 West Main Street, Suite 1810 Louisville, KY 40202 Telephone: (502) 657 7100 Facsimile: (502) 657 7111 E-mail: jmoore@gminjurylaw.com asmith@gminjurylaw.com MDL 2827: Donahoe Suit over iPhone Performance Moved to N.D. Calif. ------------------------------------------------------------------- Carter Donahoe, on behalf of himself and all others similarly situated, the Plaintiff, v. Apple, Inc., the Defendant, Case No. 1:18-cv-00763, was transferred from the U.S. District Court for the Northern District of Ohio to the U.S. District Court for the Northern District of California (San Jose) on Aug. 7, 2018. The District Court Clerk assigned Case No. 5:18-cv-04691-EJD to the proceeding. The case is assigned to the Hon. Judge Edward J. Davila. The Donahoe case is being consolidated with MDL 2827 in re: Apple Inc. Device Performance Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on April 4, 2018. According to the MDL Panel, these actions share factual questions arising from allegations that Apple included code in updates to its mobile operating system (iOS) that significantly reduced the performance of older-model iPhones. Plaintiffs also allege that Apple misrepresented the nature of the iOS updates and failed to adequately disclose to iPhone owners the impact the iOS updates would have on the performance of their iPhones. Discovery regarding the engineering of the iPhone and the iOS updates likely will be technical and complex. The Plaintiffs assert similar causes of action for false advertising, alleged unfair business practices, trespass to chattels, breach of contract, and unjust enrichment. Moreover, plaintiffs bring these actions on behalf of overlapping putative classes of iPhone owners. The MDL Panel says centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. The Northern District of California is an appropriate transferee district for this litigation. This district has a strong connection to these cases. Apple is headquartered within, and the critical events and decisions underlying plaintiffs' claims occurred in, the Northern District of California.[BN] The Plaintiff is represented by: James S. Wertheim, Esq. 24700 Chagrin Blvd., Ste. 309 Beachwood, OH 44122 Telephone: (216) 225 6663 E-mail: wertheimjim@gmail.com The Defendant is represented by: Laurie A. Witek, Esq. Patrick M. Hagan, Esq. DINSMORE & SHOHL-CINCINNATI 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 Telephone: (513) 977 8200 Facsimile: (513) 977 8141 E-mail: laurie.witek@dinsmore.com patrick.hagan@dinsmore.com METROPOLITAN PAINTING: Galeano Suit to Recover OT Pay Under FLSA ---------------------------------------------------------------- CARLOS GALEANO, individually and on behalf of others similarly situated v. METROPOLITAN PAINTING & CONTRACTING CO., INC. (D/B/A METROPOLITAN PAINTING & CONTRACTING), KENNETH KOHLER, ROBERT KOHLER, and TONY DOE, Case No. 2:18-cv-04391 (E.D.N.Y., August 2, 2018), seeks to recover alleged unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law. Metropolitan Painting & Contracting Co., Inc., is a domestic corporation organized and existing under the laws of the state of New York and maintains its principal place of business in Mineola, New York. The Individual Defendants serve or served as owners, managers, principals or agents of the Defendant Corporation and, through this corporate entity, operate or operated the construction corporation as a joint or unified enterprise. The Defendants own, operate, or control a contracting company, located at 121 East Jericho Turnpike, in Mineola, New York, under the name "Metropolitan Painting & Contracting."[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 MICROSOFT CORP: Certification in Sex Discrimination Suit Denied --------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, denied Plaintiffs Katherine Moussouris and Holly Muenchow's motion for class certification in the case captioned KATHERINE MOUSSOURIS, et al., Plaintiffs, v. MICROSOFT CORPORATION, Defendant, Case No. C15-1483JLR (W.D. Wash.). This second amended complaint asserted that Microsoft systematically undervalued female technical employees in this process because female employees received, on average, lower rankings despite equal or better performance. Commonality Rule 23(a)(2) requires a plaintiff to show that there are questions of law or fact common to the class. The requirements of commonality have been construed permissively not all questions of fact and law need to be common. However, because any competently crafted class complaint literally raises common questions not every common question suffices. The Plaintiffs' theory and arguments surrounding commonality have shifted. In their briefing, the Plaintiffs make no distinction between their pay and promotion claims, arguing that Microsoft's common but unvalidated criteria set of common procedures and the final approval by just four EVPs cabined the discretion that lower managers exercised in both pay and promotion determinations. During oral argument, however, the Plaintiffs presented a new theory that suggested different analyses for pay and promotion: They maintained that the use of Stock Levels removed discretion for pay determinations whereas the common criteria and procedures cabined discretion for promotion determinations. It is inappropriate to present a new argument at oral argument and deny the court and opposing counsel a chance to review the merits of such an argument. Nonetheless, the court considers all of the Plaintiffs' arguments and addresses the Plaintiffs' disparate impact and disparate treatment claims in turn. Disparate Impact Commonality To establish a prima facie case of disparate impact, plaintiffs must: (1) show a significant disparate impact on a protected class or group (2) identify the specific employment practices at issue and (3) show a causal relationship between the challenged practices and the disparate impact. Law Governing Disparate Impact Commonality Wal-Mart Stores, Inc. v. Dukes directly addressed the issue of commonality in a Title VII gender discrimination case that challenged the discretion exercised by individual supervisors over pay and promotion matters. 564 U.S. at 344-45. The Dukes plaintiffs alleged that local managers' discretion over pay and promotions was exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees. The Plaintiffs' theory of commonality was that Wal-Mart's "strong and uniform corporate culture' permits bias against women to infect the discretionary decision-making of each one of Wal-Mart's thousands of managers thereby making every woman at the company the victim of one common discriminatory practice." Because demonstrating the invalidity of one manager's discretion will do nothing to demonstrate the invalidity of another's, a party basing commonality on such a system of discretion will be unable to show that all the employees' Title VII claims will in fact depend on the answers to common questions. But Dukes did not entirely foreclose the ability to establish commonality when the employer operates under a policy allowing discretion. Plaintiffs challenging a system of discretion must identify a common mode of exercising discretion that pervades the entire company. In other words, when plaintiffs wish to challenge numerous employment decisions at once, they must point to some glue holding the alleged reasons for all those decisions together. Otherwise, it would be quite unbelievable that all managers would exercise their discretion in a common way without some common direction. The Court determined that both the plaintiffs' aggregated statistical evidence and anecdotal evidence fell well short of indicating a common direction from upper management, and thus, the plaintiffs failed to demonstrate the existence of common issues. Application to Plaintiffs' Disparate Impact Claims As evident from the survey, whether commonality exists in a system of discretion is a holistic inquiry that is highly dependent on the facts before the court. Applying the law on commonality to the case at hand, the court concludes that the Plaintiffs have not shown that their disparate impact claims depend upon a common contention. At oral argument, the Plaintiffs attempted to distance themselves from the system of discretion they describe in their briefing, arguing for the first time that the use of Stock Levels dictated an employee's pay, leaving no room for discretionary decision-making. Put differently, the Plaintiffs argued that after the managers submit their performance ratings which the Plaintiffs concede involve discretion the employee's Stock Level mandates a certain pay with no discretion involved. But this attempt to divorce pay determinations from discretion is unavailing. It is true that peers were grouped, and thus compared, to others in similar Stock Levels, but within those groups, managers still exercised discretion in comparing peers, resulting in various pay determinations. The Plaintiffs point to no evidence, and the court is not aware of any in the record, that an employee's Stock Level eliminates discretion because the Stock Level unequivocally determines one's pay. Of course, the fact that the Plaintiffs' challenge centers on discretion does not foreclose commonality. But the Plaintiffs must show that there is some common mode of exercising discretion that pervades the entire company and ties the alleged reasons for all those individual decisions together. The Plaintiffs broadly assert that Microsoft uses common criteria in a uniform Calibration Process but offer little analysis beyond labeling certain processes and criteria as common. Considering the size of the purported class, the Calibration Process's role as a mere framework, the subjective criteria set by Microsoft, and the lack of upper management involvement, the court concludes that Plaintiffs fail to identify a specific employment practice supplying a common question sufficient to certify a class. The Plaintiffs challenge Microsoft's policy of allowing discretion by lower-level managers but have not identified a common mode of exercising discretion that pervades the entire company. As in Dukes, without some common direction, it is quite unbelievable that all Microsoft managers supervising over 8,600 putative class members would exercise their discretion in a common way. Thus, the Plaintiffs are in the same position as the Dukes plaintiffs: challenging a practice of delegating discretion to local managers, which the Supreme Court specifically held was not a specific employment practice supplying a common question sufficient to certify a class. Because the Plaintiffs provide no convincing evidence of some glue holding together the reasons behind the numerous employment decisions they challenge, they have not established a common answer to the question why was the Court disfavored. Accordingly, the court concludes that commonality is lacking for the Plaintiffs' disparate impact claims. Typicality The Plaintiffs' proffered declarations illustrate the many differences among individual class members' challenges. For instance, Ms. Dove may challenge the forced comparison process in calibration meetings, because someone had to receive zero rewards, and that someone became her because of her gender. Ms. Dove's discrimination claim, then, would center on those calibration meetings, the managers present, and the specific peer group to which she was compared. Ms. Boeh, on the other hand, would challenge her manager's initial recommendation or lack thereof when the manager did not want to waste' a promotion" on her after her return from maternity leave. Thus, Ms. Boeh's discrimination claim would not concern the forced comparison in calibration meetings but instead, the initial recommendation process and the specific manager who refused to recommend her for a promotion. Both claims may well have merit, but the very nature of these claims that is, the conduct that injured these declarants differs from that of the Plaintiffs' claims and from each other. The conduct in the Plaintiffs' action necessarily differs from the conduct that caused other class members' injuries in this system of unrestrained discretion. Given the discretion-based system, the individualized inquiry will vary for each plaintiff, foreclosing any contention that the named plaintiffs' claims are typical. Thus, the court concludes that Plaintiffs have also failed to establish typicality. Adequacy Rule 23(a)(4) requires Plaintiffs to demonstrate that they will fairly and adequately protect the interests of their class. Fed. R. Civ. P. 23(a)(4). To determine adequacy, the court must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Microsoft does not dispute the second issue that the Plaintiffs and counsel will prosecute the action vigorously nor is the court aware of any reason to doubt the Plaintiffs and their counsel on this point. Microsoft instead argues that adequacy is lacking because the proposed class presents irreconcilable conflicts of interest. Specifically, Microsoft maintains that because the proposed class consists of females employees who participated as managers in the Calibration Process the very process being challenged Plaintiffs must impugn the input of thousands of class members who participated in calibration. The court agrees. Although there is no per se rule regarding adequacy where a class includes employees at different levels of an employment hierarchy the concern about classes that involve both supervisors and rank-and-file workers can be a valid one in some circumstances. Courts have not only held that supervisors may not be appropriate representatives of their subordinates but have also extended that logic to prevent a subordinate from representing a supervisor. In summary, after careful review, the court finds that the Plaintiffs have failed to carry their burden of satisfying the Rule 23(a) prerequisites. First, the Plaintiffs have not demonstrated a common question to be resolved on behalf of the putative class. Additionally, the Plaintiffs have failed to establish that the Plaintiffs' claims are typical of those of the class members or that the Plaintiffs are adequate representatives of absent class members. A full-text copy of the District Court's June 25, 2018 Order is available at https://tinyurl.com/y7peuf4k from Leagle.com. Michelle Peterson, Special Master, pro se. Katherine Moussouris, on behalf of herself and a class of those similarly situated, Plaintiff, represented by Adam T. Klein -- atk@outtengolden.com -- OUTTEN & GOLDEN, LLP, pro hac vice, Anne B. Shaver -- ashaver@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Daniel Stromberg -- dstromberg@outtengolden.com -- OUTTEN & GOLDEN LLP, pro hac vice, Kelly M. Dermody -- kdermody@lchb.com -- LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Michael C. Danna, OUTTEN & GOLDEN LLP, pro hac vice, Michael Levin-Gesundheit, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Michelle Lamy, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Ossai Miazad, OUTTEN & GOLDEN LLP, pro hac vice, Pamela Disney, OUTTEN & GOLDEN LLP, pro hac vice, Paul W. Mollica, OUTTEN & GOLDEN LLP, pro hac vice, Rachel Bien, OUTTEN & GOLDEN LLP, pro hac vice, Rachel J. Geman, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Tiseme Zegeye, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Michael C. Subit, FRANK FREED SUBIT & THOMAS & Sharon M. Lee, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP. Holly Muenchow & Dana Piermarini, Plaintiffs, represented by Adam T. Klein, OUTTEN & GOLDEN, LLP, pro hac vice, Anne B. Shaver, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Daniel Stromberg, OUTTEN & GOLDEN LLP, pro hac vice, Kelly M. Dermody, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Michael C. Danna, OUTTEN & GOLDEN LLP, pro hac vice, Michelle Lamy, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Ossai Miazad, OUTTEN & GOLDEN LLP, pro hac vice, Pamela Disney, OUTTEN & GOLDEN LLP, pro hac vice, Paul W. Mollica, OUTTEN & GOLDEN LLP, pro hac vice, Rachel Bien, OUTTEN & GOLDEN LLP, pro hac vice, Rachel J. Geman, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Tiseme Zegeye, LIEFF CABRASER HEIMANN & BERNSTEIN, pro hac vice, Michael C. Subit, FRANK FREED SUBIT & THOMAS & Sharon M. Lee, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP. Microsoft Corporation, Defendant, represented by Allison Riechert Giese -- agiese@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Jessica R. Perry -- jperry@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Jill L. Rosenberg -- jrosenberg@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Joseph Liburt -- jliburt@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Kathryn Grzenczyk Mantoan -- kmantoan@orrick.com -- ORRICK,HERRINGTON & SUTCLIFFE LLP, pro hac vice, Lynne C. Hermle -- lchermle@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Marc R. Shapiro -- mrshapiro@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Megan M. Lawson -- megan.lawson@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE, pro hac vice, Wendy Butler Curtis, ORRICK HERRINGTON & SUTCLIFFE, pro hac vice & Mark Steven Parris -- mparris@orrick.com -- ORRICK HERRINGTON & SUTCLIFFE LLP. MINNESOTA: 8th Cir. Affirms Ruling in Suit Over METO ---------------------------------------------------- The United States Court of Appeals, Eighth Circuit, affirmed the judgment of the District Court retaining jurisdiction to enforce the stipulated class action settlement agreement in the case captioned James Jensen; Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen and others similarly situated; James Brinker; Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink and others similarly situated; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs and others similarly situated, Plaintiffs-Appellees, v. Minnesota Department of Human Services, an agency of the State of Minnesota, Defendant-Appellant, Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually, and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota, Defendants, State of Minnesota, Defendant-Appellant, No. 17-2653 (8th Cir.). The Minnesota Department of Human Services (MDHS) appeals from a post-judgment order of the district court concluding that the court retained jurisdiction to enforce the stipulated class action settlement agreement. The Jensen class civilly committed individuals, their next friends, and others similarly situated filed suit in federal district court in Minnesota. Their claims were based on the abusive, inhumane, cruel and improper use of seclusion and mechanical restraints routinely imposed upon patients of the Minnesota Extended Treatment Options program (METO). MDHS for the first time raised an objection to the district court's continuing jurisdiction. According to MDHS, the court's jurisdiction had ceased as of December 4, 2014. The parties briefed the issue, and, on June 28, 2017, the district court entered an order concluding it retained jurisdiction. The district court found that the jurisdictional provision in the Agreement was ambiguous, but looked to extrinsic evidence to conclude that the parties intended to grant the court jurisdiction for as long as it deemed just and equitable. Contractual Ambiguity Under Minnesota law, a contract is ambiguous if the language used is reasonably susceptible of more than one meaning. The Jensen class bases its interpretation on the use of the words receiving and resolving to link the two purposes for which the district court had jurisdiction for the initial two-year period. The subsequent portion of the sentence or as the Court deems just and equitable in contrast, does not begin with a gerund and thus cannot be one of the purposes subject to the two-year limit. To assert otherwise is to say that the court had jurisdiction for the purpose of as the Court deems just and equitable, a nonsensical grammatical construction. Had the parties intended the interpretation that MDHS advocates, they would have used a third gerund, such as acting before the phrase as the Court deems just and equitable. The Jensen class also asserts that given the complex nature of the parties' obligations under the Agreement, inclusion of a specific procedure for extending jurisdiction for one additional year, as well as a fall-back clause for the court to retain jurisdiction as it deems "just and equitable, was a logical choice. Both parties' readings are reasonable but imperfect interpretations of the jurisdictional provision. And as the district court stated, neither party's interpretation makes complete grammatical sense. In short, we agree with the district court that the jurisdictional provision in the Agreement is reasonably susceptible to more than one reading; it is ambiguous. Extrinsic Evidence Once a court concludes that a contract is ambiguous, construction then becomes a question of fact unless extrinsic evidence is conclusive as to the intent of the parties. The attorney for the Jensen class who originally negotiated the Agreement submitted a sworn affidavit. He stated that, at the time of negotiation, he understood that the jurisdictional provision allowed the district court to retain jurisdiction in the event of non-compliance or delay on the part of MDHS. The recognize that this evidence only serves to show the understanding of one party at the time of contracting, but it supports the reasonable inference drawn from the repeated conduct of the parties that all sides understood the district court to have the authority to extend its jurisdiction as it deemed just and equitable. MDHS presents no alternative extrinsic evidence to support its reading of the agreement. MDHS points only to the district court's July 17, 2012, Order, arguing that there, the district court adopted its interpretation. But a fair reading of the district court's language in this order is that it was merely reciting the language of the Agreement language that is only now in dispute. To the extent this order is extrinsic evidence, it fails to support MDHS's interpretation. The Court concludes that, while the jurisdictional provision of the Agreement is ambiguous on its face, the extrinsic evidence shows that this provision permits the district court to extend its jurisdiction as it deems just and equitable. The Court affirms. A full-text copy of the Eighth Circuit's July 26, 2018 Opinion is available at https://tinyurl.com/y7nl3ve8 from Leagle.com. Mark R. Azman, for Plaintiff-Appellee. Shamus Patrick O'Meara, for Plaintiff-Appellee. Scott Hiromi Ikeda, for Defendant-Appellant. Scott Hiromi Ikeda, for Defendant. Samuel Orbovich -- sorbovich@fredlaw.com -- for Defendant. Christopher A. Stafford -- cstafford@fredlaw.com -- for Defendant. Anthony R. Noss, for Defendant-Appellant. Aaron Edward Winter, for Defendant-Appellant. NORDSTROM INC: Miller Files Suit for Invasion of Privacy -------------------------------------------------------- DANA MILLER, individually and on behalf of all others similarly situated v. NORDSTROM INC., Case No. 0:18-cv-61796-FAM (S.D. Fla., August 2, 2018), alleges that the Defendant violated the Telephone Consumer Protection Act by engaging in unsolicited telemarketing directed towards prospective customers with no regard for their privacy rights. Nordstrom Inc. is a Washington Corporation with its principal office located in Seattle, Washington. The Defendant directs, markets, and provides business activities throughout the state of Florida. The Defendant is an American-based chain of department stores.[BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com NORTH CAROLINA HEALTH: Hawkins Class Cert. Bid Granted in Part -------------------------------------------------------------- In the lawsuit styled MARCIA ELENA QUINTEROS HAWKINS, ALICIA FRANKLIN, VANESSA LACHOWSKI, AND KYANNA SHIPP, on behalf of themselves and all others similarly situated, the Plaintiffs, v. MANDY COHEN, in her official capacity as Secretary of the North Carolina Department of Health and Human Services, the Defendant, Case No. 5:17-CV-581-FL (E.D.N.C.), the Hon. Judge Louise W. Flanagan entered an order on August 9, 2018: 1. granting in part and denying in part Plaintiffs' motion to certify classes of: Class One: "all individuals whose Medicaid coverage was or is based upon a nondisability category, and whose Medicaid coverage was, is, or will be interrupted or terminated, effective January 1, 2014 or later, by Defendant Secretary of the North Carolina Department of Health and Human Services, or any of her employees, contractors, agents, or assigns, without first making an individualized determination of continued Medicaid eligibility under a disability-based category"; and Class Two: "all individuals whose Medicaid coverage was or is based upon a disability category, and whose Medicaid coverage was, is, or will be terminated or interrupted, effective January 1, 2016 or later, by Defendant Secretary of DHHS, or any of her employees, contractors, agents, or assigns, without first sending the beneficiary at least 10-day prior written notice of the termination of Medicaid that describes the specific reasons for the termination, the specific regulation supporting the termination, and the right to a pre-termination hearing"; and 2. granting in part and denying in part Defendant's motion to dismiss, and Plaintiffs' motion for preliminary injunction. The Court said, "Within 30 days of the date of this order, plaintiffs are directed to file a form of proposed notice and method of notice to class members for Class One and Class Two. The Defendant is directed to file a response thereto, within 15 days of the filing of any proposed notice by plaintiffs. Because the injunction determined by the court is not based upon specific language requested by either party, and it implicates a variety of administrative considerations, the details of which have not been briefed by the parties, the court stays implementation of the injunction for 60 days from the date of this order. During that time, within 30 days of the date of this order, both parties may, but are not required to, file an alternative proposal for accomplishing the purpose of the injunctive 45 relief. Within 15 days of such submission(s), if any, a party may file a response to the other party's proposal, if any. Thereupon the court will make such further ruling as is warranted to implement or modify its injunction order." NRI USA: Seeks 9th Circuit Review of Decision in Garcia Suit ------------------------------------------------------------ Defendant NRI USA, LLC, filed an appeal from a court ruling in the lawsuit titled Alejandra Garcia v. NRI USA, LLC, Case No. 2:17-cv-08355-ODW-GJS, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter on July 19, 2018, the District Court denied the Motion to Dismiss the State Law Claims in the case. The Plaintiff began working for the Defendants in a warehouse facility in Los Angeles, California. The Plaintiff filed a complaint in Los Angeles Superior Court against NRI alleging illegal payment policies and practices and seeking civil penalties under California's Private Attorney General Act. The Plaintiff asserts two bases for the District Court's subject-matter jurisdiction. First, the Plaintiff alleges that the jurisdictional requirements of the Class Action Fairness Act (CAFA) are met because the proposed class numbers at least 100 persons, the Plaintiff is a citizen of a state different than at least one of the Defendants, and the amount in controversy exceeds $5,000,000. The Plaintiff also alleges that the District Court has original federal-question jurisdiction over the Fair Labor Standards Act claim pursuant to 28 U.S.C. Section 1331 and supplemental jurisdiction over the state-law claims. The Defendants argue that the District Court does not have jurisdiction of the state-law claims under CAFA, so the only remaining basis for jurisdiction of the state-law claims is supplemental jurisdiction. The appellate case is captioned as Alejandra Garcia v. NRI USA, LLC, Case No. 18-56052, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant NRI USA, LLC's opening brief is due on October 1, 2018; -- Appellee Alejandra Garcia's answering brief is due on November 1, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellee ALEJANDRA GARCIA, individually and on behalf of others similarly situated, is represented by: Joshua D. Boxer, Esq. THE MILLS LAW FIRM 880 Las Gallinas Avenue, Suite Two San Rafael, CA 94903 Telephone: (415) 455-1326 E-mail: jboxer@maternlawgroup.com - and - Matthew J. Matern, Esq. MATERN LAW GROUP 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531-1900 E-mail: Mmatern@maternlawgroup.com Defendant-Appellant NRI USA, LLC, a California limited liability company, is represented by: David G. Hagopian, Esq. Garrett Voorhees Jensen, Esq. Jeffrey L. Sikkema, Esq. CAROTHERS DISANTE & FREUDENBERGER LLP 2600 Michelson Drive Irvine, CA 92612 Telephone: (949) 622-1661 E-mail: dhagopian@cdlitigation.com gjensen@cdflaborlaw.com jsikkema@cdflitigation.com OCWEN FINANCIAL: Still Defends McWhorter Class Action ----------------------------------------------------- Ocwen Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend itself in a putative class action lawsuit entitled, McWhorter et al. v. Ocwen Loan Servicing, LLC, 2:15-cv-01831 (N.D. Ala.). In 2014, plaintiffs filed a putative class action against Ocwen in the United States District Court for the Northern District of Alabama, alleging that Ocwen violated the FDCPA by charging borrowers a convenience fee for making certain loan payments. The plaintiffs are seeking statutory damages under the FDCPA, compensatory damages and injunctive relief. The presiding court previously ruled on Ocwen's motions to dismiss, and Ocwen answered the operative complaint. Ocwen subsequently entered into an agreement in principle to resolve this matter, and the presiding court is considering motions to approve the settlement. While Ocwen believes that it has sound legal and factual defenses, Ocwen has agreed to this settlement in principle in order to avoid the uncertain outcome of litigation and the additional expense and demands on the time of its senior management that such litigation would involve. Ocwen Financial said, "There can be no assurance that the court will finally approve the settlement. In the event the settlement is not finally approved, the litigation would continue, and we would vigorously defend the allegations made against Ocwen. Our accrual with respect to this matter is included in the $54.3 million legal and regulatory accrual referenced above. We cannot currently estimate the amount, if any, of reasonably possible loss above the amount accrued." Ocwen Financial Corporation, a financial services holding company, originates and services loans in the United States, the United States Virgin Islands, India, and Philippines. Ocwen Financial Corporation was founded in 1988 and is headquartered in West Palm Beach, Florida. OCWEN FINANCIAL: TCPA Class Action in Illinois Underway ------------------------------------------------------- Ocwen Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the consolidated TCPA class action in the Northern District of Illinois is still ongoing. Ocwen has been named in putative class actions and individual actions related to its compliance with the TCPA. Generally, plaintiffs in these actions allege that Ocwen knowingly and willfully violated the TCPA by using an automated telephone dialing system to call class members' cell phones without their consent. On July 28, 2017, Ocwen entered into an agreement in principle to resolve two such putative class actions, which have been consolidated in the United States District Court for the Northern District of Illinois. See Snyder v. Ocwen Loan Servicing, LLC, 1:14-cv-08461-MFK (N.D. Ill.); Beecroft v. Ocwen Loan Servicing, LLC, 1:16-cv-08677-MFK (N.D. Ill.). Subject to final approval by the court, the settlement will include the establishment of a settlement fund to be distributed to impacted borrowers that submit claims for settlement benefits pursuant to a claims administration process. While Ocwen believes that it has sound legal and factual defenses, Ocwen agreed to this settlement in principle in order to avoid the uncertain outcome of litigation and the additional expense and demands on the time of its senior management that such litigation would involve. Ocwen said "The court has preliminarily approved the settlement and we have paid the settlement amount into an escrow account held by the settlement administrator. However, there can be no assurance that the court will finally approve the settlement. In the event the settlement is not finally approved, the litigation would continue, and we would vigorously defend the allegations made against Ocwen. Additional lawsuits may be filed against us in relation to these matters. At this time, Ocwen is unable to predict the outcome of these existing lawsuits or any additional lawsuits that may be filed, the possible loss or range of loss, if any, associated with the resolution of such lawsuits or the potential impact such lawsuits may have on us or our operations. Ocwen intends to vigorously defend against these lawsuits. If our efforts to defend these lawsuits are not successful, our business, financial condition liquidity and results of operations could be materially and adversely affected." Ocwen Financial Corporation, a financial services holding company, originates and services loans in the United States, the United States Virgin Islands, India, and Philippines. Ocwen Financial Corporation was founded in 1988 and is headquartered in West Palm Beach, Florida. ONONDAGA COUNTY, NY: Denial of Class Certification Reversed ----------------------------------------------------------- The Appellate Division of the Supreme Court of New York, Third Department, reverses as denied the petitioner's motion for class certification in the case captioned In the Matter of TRICIA STEWART, Individually and as the Parent of ZAS et al., and on Behalf of Similarly Situated Individuals, Respondent-Appellant, v. SAMUEL D. ROBERTS, as Commissioner of the Office of Temporary and Disability Assistance, Appellant-Respondent, et al., Respondent, 525064 (N.Y. App. Div.). In May 2015, the Onondaga County Department of Social Services denied the petitioner's application for public assistance on the basis that she had resources in excess of the permitted limit of $2,000. At the time of her application, petitioner had bank accounts with a total balance of $248 and owned an automobile with a fair market value of $12,113. As relevant here, an automobile is exempt, by statute, from consideration as an available resource, up to a FMV of $9,300. DSS determined that $2,813 -- the amount by which the FMV of petitioner's automobile exceeded the $9,300 exemption amount -- was an available resource, and, therefore, that the petitioner had available resources totaling $3,061. The Petitioner appealed to the Office of Temporary and Disability Assistance for a fair hearing, which was held in July 2015. The Petitioner submitted proof showing that she had financed her purchase of the automobile, in part, with a loan that was secured by a lien on the automobile on which the outstanding principal balance was $13,301, and argued that her automobile should not be considered an available resource because the outstanding loan balance exceeded the FMV by $1,188. The Administrative Law Judge affirmed DSS's denial of benefits. In November 2015, petitioner commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking class certification and to annul OTDA's fair hearing determination and directing DSS to award her benefits. After answering, respondent Commissioner of OTDA moved for summary judgment dismissing the petition/complaint. The Petitioner cross-moved for summary judgment on all of her claims for relief and separately moved for class certification. Upon determining that OTDA's policy regarding automobile valuation for purposes of determining available resources violates applicable law, the Supreme Court partially granted the petitioner's cross motion by annulling OTDA's determination, and it remitted the matter to OTDA for calculation of the amount of retroactive benefits due the petitioner. In addition, the court denied the petitioner's motion for class certification and the respondent's motion for summary judgment. The respondent appeals, and the petitioner cross-appeals the denial of her motion for class certification. The Court holds that public assistance must be provided only to individuals who are in need a determination that the statute provides is based on the extent of their available income or resources which are not required to be disregarded by other provisions of this chapter. The first step in determining the extent to which an applicant's automobile is an available resource is to determine the extent of the available exemption based on the FMV of the automobile. If the automobile has a FMV of less than the amount specified by statute, the inquiry ends; in such cases, the automobile is exempt regardless of whether it is encumbered by a loan. However, where, as here, the FMV of the vehicle exceeds the specified maximum exemption, a second determination must be made regarding the extent to which the excess FMV constitutes an available resource. In that regard, it is instructive that the amount of real and personal property, including liquid assets, that can be reserved for each public assistance household must not be in excess of $2,000 equity value. Only the net amount that could be received upon the sale of an asset that is encumbered by an outstanding loan balance, i.e., the FMV less the outstanding loan balance, could be available to eliminate or reduce an applicant's need for public assistance. The arbitrary nature of OTDA's contrary position is aptly illustrated in this case, where the sale of the vehicle would not have generated any resources that petitioner could have used to meet her own support needs. Indeed, based on the automobile's FMV, she would not have received enough upon its sale to pay the entire outstanding loan balance. For these reasons, the Court concludes that Supreme Court properly held that the extent to which the FMV of an automobile that exceeds the exempt amount is an available resource must be determined based on the applicant's equity interest therein, and that OTDA's contrary interpretation was irrational and unreasonable. Accordingly, the Court orders that the judgment is modified, on the law, without costs, by reversing so much thereof as denied the petitioner's motion for class certification; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed. A full-text copy of the N.Y. App. Div.'s June 21, 2018 Opinion is available at https://tinyurl.com/ya6x4gfw from Leagle.com. Barbara D. Underwood , Attorney General, Albany ( Laura Etlinger of counsel), for appellant-respondent. Susan C. Antos - santos@empirejustice.org -- Empire Justice Center, Albany, and Julie B. Morse , Legal Services of Central New York, Syracuse, 472 South Salina Street. Suite, 300 Syracuse, NY 13202, for respondent-appellant. PAPA JOHN'S: Burnham Suit Seeks to Recover Unpaid Wages ------------------------------------------------------- Austin Burnham, individually and on behalf of similarly situated persons v. Papa John's Paducah, LLC, and Robert Workman, Case No. 5:18-cv-00112 (W.D. Ky., July 20, 2018), seeks to recover unpaid minimum and overtime wages under the Fair Labor Standards Act. The Plaintiff worked as a delivery driver for the Defendants. The Defendants operate numerous Papa John's Pizza franchise stores in Kentucky. [BN] The Plaintiff is represented by: David O'Brien Suetholz, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 515 Park Avenue Louisville, KY 40208 Tel: (502) 636-4333 E-mail: davids@bsjfirm.com PHILIP MORRIS: 11 Smoking & Health Class Suits as of July 24 ------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that as of July 24, 2018, there were a number of smoking and health cases pending against the company, its subsidiaries or indemnitees, as follows: * 65 cases brought by individual plaintiffs in Argentina (35), Brazil (10), Canada (4), Chile (7), Costa Rica (1), Italy (3), the Philippines (1), Poland (2), Turkey (1) and Scotland (1), compared with 68 such cases on July 25, 2017, and 65 cases on July 22, 2016; and * 11 cases brought on behalf of classes of individual plaintiffs in Brazil (2) and Canada (9), compared with 11 such cases on July 25, 2017 and 11 such cases on July 22, 2016. These cases primarily allege personal injury and are brought by individual plaintiffs or on behalf of a class or purported class of individual plaintiffs. Plaintiffs' allegations of liability in these cases are based on various theories of recovery, including negligence, gross negligence, strict liability, fraud, misrepresentation, design defect, failure to warn, breach of express and implied warranties, violations of deceptive trade practice laws and consumer protection statutes. Plaintiffs in these cases seek various forms of relief, including compensatory and other damages, and injunctive and equitable relief. Defenses raised in these cases include licit activity, failure to state a claim, lack of defect, lack of proximate cause, assumption of the risk, contributory negligence, and statute of limitations. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Affiliate Continues to Defend Ringer Suit in Israel ------------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company's affiliate in Israel continues to defend a purported class action suit entitled Aharon Ringer v. Philip Morris Ltd. and Globrands Ltd. An individual plaintiff filed the purported class action, Aharon Ringer v. Philip Morris Ltd. and Globrands Ltd., on July 18, 2017, in the Central District Court of Israel. Philip Morris said "Our Israeli affiliate and an Israeli importer and distributor for other multinational tobacco companies are defendants." Plaintiff seeks to represent a class of smokers in Israel who have purchased cigarettes imported by defendants since July 18, 2010. Plaintiff estimates the class size to be 7,000,000 smokers. Plaintiff alleges that defendants misled consumers by not disclosing sufficient information about carbon monoxide, tar, and nicotine yields of, and tobacco contained in, the imported cigarettes. Plaintiff seeks various forms of relief, including an order for defendants to label cigarette packs in accordance with plaintiff's demands, and damages for misleading consumers, breach of autonomy and unjust enrichment. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Appeals in Smoker Health Defense Suit Still Pending ------------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the en banc appeal by the plaintiff to Brazil's Supreme Court of Justice and the defendants' constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit are still pending. Philip Morris said, "The Smoker Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A., Nineteenth Lower Civil Court of the Central Courts of the Judiciary District of Sao Paulo, Brazil, filed July 25, 1995, our subsidiary and another member of the industry are defendants." The plaintiff, a consumer organization, is seeking damages for all addicted smokers and former smokers, and injunctive relief. In 2004, the trial court found defendants liable without hearing evidence and awarded "moral damages" of R$1,000 (approximately $265) per smoker per full year of smoking plus interest at the rate of 1% per month, as of the date of the ruling. The court did not award actual damages, which were to be assessed in the second phase of the case. The size of the class was not estimated. Defendants appealed to the Sao Paulo Court of Appeals, which annulled the ruling in November 2008, finding that the trial court had inappropriately ruled without hearing evidence and returned the case to the trial court for further proceedings. In May 2011, the trial court dismissed the claim. In February 2015, the appellate court unanimously dismissed plaintiff's appeal. In September 2015, plaintiff appealed to the Superior Court of Justice. In February 2017, the Chief Justice of the Supreme Court of Justice denied plaintiff's appeal. In March 2017, plaintiff filed an en banc appeal to the Supreme Court of Justice. In addition, the defendants filed a constitutional appeal to the Federal Supreme Tribunal on the basis that plaintiff did not have standing to bring the lawsuit. Both appeals are still pending. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Continues to Defend "Bourassa" Class Suit in Canada ------------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company, together with its subsidiaries and indemnities, continues to defend a class action suit in Canada entitled, Bourassa v. Imperial Tobacco Canada Limited, et al. In a class action pending in Canada, Bourassa v. Imperial Tobacco Canada Limited, et al., Supreme Court, British Columbia, Canada, filed June 25, 2010, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, the heir to a deceased smoker, alleges that the decedent was addicted to tobacco products and suffered from emphysema resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who were alive on June 12, 2007, and who suffered from chronic respiratory diseases allegedly caused by smoking, their estates, dependents and family members, plus disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. In December 2014, plaintiff filed an amended statement of claim. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: No Actions Taken in "Jacklin" Class Action --------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that Jacklin's counsel has indicated that he does not intend to take any action in this case in the near future. In a class action pending in Canada, Suzanne Jacklin v. Canadian Tobacco Manufacturers' Council, et al., Ontario Superior Court of Justice, filed June 20, 2012, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and COPD resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, heart disease, or cancer, as well as restitution of profits. Plaintiff's counsel has indicated that he does not intend to take any action in this case in the near future. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Preliminary Motions in Adams Suit Still Pending -------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that preliminary motions in Adams v. Canadian Tobacco Manufacturers' Council, et al., are pending. In a class action pending in Canada, Adams v. Canadian Tobacco Manufacturers' Council, et al., The Queen's Bench, Saskatchewan, Canada, filed July 10, 2009, the company, its subsidiaries, and its indemnitees (PM USA and Altria), and other members of the industry are defendants. The plaintiff, an individual smoker, alleges her own addiction to tobacco products and COPD resulting from the use of tobacco products. She is seeking compensatory and punitive damages on behalf of a proposed class comprised of all smokers who have smoked a minimum of 25,000 cigarettes and have allegedly suffered, or suffer, from COPD, emphysema, heart disease, or cancer, as well as restitution of profits. Preliminary motions are pending. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Unit Continues to Defend Blais Suit in Canada ------------------------------------------------------------ Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company's subsidiary continues to defend a class action suit in Canada entitled, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp. In a class action pending in Canada, Conseil Quebecois Sur Le Tabac Et La Sante and Jean-Yves Blais v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in November 1998, the company's subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiffs, an anti-smoking organization and an individual smoker, sought compensatory and punitive damages for each member of the class who allegedly suffers from certain smoking-related diseases. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found the company's subsidiary and two other Canadian manufacturers liable and found that the class members' compensatory damages totaled approximately CAD 15.5 billion, including pre-judgment interest (approximately $11.8 billion). The trial court awarded compensatory damages on a joint and several liability basis, allocating 20% to the company's subsidiary (approximately CAD 3.1 billion, including pre-judgment interest (approximately $2.36 billion)). In addition, the trial court awarded CAD 90,000 (approximately $68,400) in punitive damages, allocating CAD 30,000 (approximately $22,400) to the company's subsidiary and found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' diseases. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the disease class at 99,957 members. The trial court ordered defendants to pay CAD 1 billion (approximately $760 million) of the compensatory damage award into a trust within 60 days, CAD 200 million (approximately $152 million) of which is the company's subsidiary’s portion and ordered briefing on a proposed claims process for the distribution of damages to individual class members and for payment of attorneys' fees and legal costs. In June 2015, the company's subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. The company's subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that our subsidiary make an initial payment within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking an order that defendants place irrevocable letters of credit totaling CAD 5 billion (approximately $3.8 billion) into trust, to secure the judgments in both the Letourneau and Blais cases. Plaintiffs subsequently withdrew their motion for security against JTI-MacDonald Corp. and proceeded only against the company's subsidiary and Imperial Tobacco Canada Ltd. In October 2015, the Court of Appeal granted the motion and ordered the company's subsidiary to furnish security totaling CAD 226 million (approximately $172 million) to cover both the Letourneau and Blais cases. Such security may take the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $28.6 million) beginning in December 2015 through March 2017. The Court of Appeal ordered Imperial Tobacco Canada Ltd. to furnish security totaling CAD 758 million (approximately $576 million) in seven equal consecutive quarterly installments of approximately CAD 108 million (approximately $82.1 million) beginning in December 2015 through June 2017. In March 2017, the company's subsidiary made its sixth and final quarterly installment of security for approximately CAD 37.6 million (approximately $28.6 million) into a court trust. This payment is included in other assets on the condensed consolidated balance sheets and in cash used in operating activities in the condensed consolidated statements of cash flows. The Court of Appeal ordered that the security is payable upon a final judgment of the Court of Appeal affirming the trial court's judgment or upon further order of the Court of Appeal. The Court of Appeal heard oral arguments on the merits appeal in November 2016. The company's subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants' alleged misconduct caused all smoking by all class members, (iv) relying on epidemiological evidence that did not meet recognized scientific standards, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Unit Still Defends Brazil Public Prosecutor's Suit ----------------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company's subsidiary continues to defend itself in a class action suit initiated by the Public Prosecutor of Sao Paulo, Brazil. In a class action pending in Brazil, Public Prosecutor of Sao Paulo v. Philip Morris Brasil Industria e Comercio Ltda., Civil Court of the City of Sao Paulo, Brazil, filed August 6, 2007, the company's subsidiary is a defendant. The plaintiff, the Public Prosecutor of the State of Sao Paulo, is seeking (i) damages on behalf of all smokers nationwide, former smokers, and their relatives; (ii) damages on behalf of people exposed to environmental tobacco smoke nationwide, and their relatives; and (iii) reimbursement of the health care costs allegedly incurred for the treatment of tobacco-related diseases by all Brazilian States and Municipalities, and the Federal District. In an interim ruling issued in December 2007, the trial court limited the scope of this claim to the State of Sao Paulo only. In December 2008, the Seventh Civil Court of Sao Paulo issued a decision declaring that it lacked jurisdiction because the case involved issues similar to the ADESF case discussed above and should be transferred to the Nineteenth Lower Civil Court in Sao Paulo where the ADESF case is pending. The court further stated that these cases should be consolidated for the purposes of judgment. In April 2010, the Sao Paulo Court of Appeals reversed the Seventh Civil Court's decision that consolidated the cases, finding that they are based on different legal claims and are progressing at different stages of proceedings. This case was returned to the Seventh Civil Court of Sao Paulo, and our subsidiary filed its closing arguments in December 2010. In March 2012, the trial court dismissed the case on the merits. In January 2014, the Sao Paulo Court of Appeals rejected plaintiff's appeal and affirmed the trial court decision. In July 2014, plaintiff appealed to the Superior Court of Justice. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PHILIP MORRIS: Unit Still Defends Letourneau Suit in Canada ----------------------------------------------------------- Philip Morris International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2018, for the quarterly period ended June 30, 2018, that the company's subsidiary in Canada continues to defend a class action suit entitled, Cecilia Létourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp. In a class action pending in Canada, Cecilia Létourneau v. Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI Macdonald Corp., Quebec Superior Court, Canada, filed in September 1998, the company's subsidiary and other Canadian manufacturers (Imperial Tobacco Canada Ltd. and JTI-MacDonald Corp.) are defendants. The plaintiff, an individual smoker, sought compensatory and punitive damages for each member of the class who is deemed addicted to smoking. The class was certified in 2005. Trial began in March 2012 and concluded in December 2014. The trial court issued its judgment on May 27, 2015. The trial court found that the company's subsidiary and two other Canadian manufacturers liable and awarded a total of CAD 131 million (approximately $100 million) in punitive damages, allocating CAD 46 million (approximately $35 million) to the company's subsidiary. The trial court found that defendants violated the Civil Code of Quebec, the Quebec Charter of Human Rights and Freedoms, and the Quebec Consumer Protection Act by failing to warn adequately of the dangers of smoking. The trial court also found that defendants conspired to prevent consumers from learning the dangers of smoking. The trial court further held that these civil faults were a cause of the class members' addiction. The trial court rejected other grounds of fault advanced by the class, holding that: (i) the evidence was insufficient to show that defendants marketed to youth, (ii) defendants' advertising did not convey false information about the characteristics of cigarettes, and (iii) defendants did not commit a fault by using the descriptors light or mild for cigarettes with a lower tar delivery. The trial court estimated the size of the addiction class at 918,000 members but declined to award compensatory damages to the addiction class because the evidence did not establish the claims with sufficient accuracy. The trial court ordered defendants to pay the full punitive damage award into a trust within 60 days and found that a claims process to allocate the awarded damages to individual class members would be too expensive and difficult to administer. The trial court ordered a briefing on the proposed process for the distribution of sums remaining from the punitive damage award after payment of attorneys' fees and legal costs. In June 2015, the company's subsidiary commenced the appellate process by filing its inscription of appeal of the trial court's judgment with the Court of Appeal of Quebec. The company's subsidiary also filed a motion to cancel the trial court's order for payment into a trust within 60 days notwithstanding appeal. In July 2015, the Court of Appeal granted the motion to cancel and overturned the trial court's ruling that the company's subsidiary make the payment into a trust within 60 days. In August 2015, plaintiffs filed a motion with the Court of Appeal seeking security in both the Létourneau case and the Blais case. In October 2015, the Court of Appeal granted the motion and ordered the company's subsidiary to furnish security totaling CAD 226 million (approximately $172 million), in the form of cash into a court trust or letters of credit, in six equal consecutive quarterly installments of approximately CAD 37.6 million (approximately $28.6 million) beginning in December 2015 through March 2017. The Court of Appeal heard oral arguments on the merits appeal in November 2016. The company's subsidiary and PMI believe that the findings of liability and damages were incorrect and should ultimately be set aside on any one of many grounds, including the following: (i) holding that defendants violated Quebec law by failing to warn class members of the risks of smoking even after the court found that class members knew, or should have known, of the risks, (ii) finding that plaintiffs were not required to prove that defendants' alleged misconduct caused injury to each class member in direct contravention of binding precedent, (iii) creating a factual presumption, without any evidence from class members or otherwise, that defendants’ alleged misconduct caused all smoking by all class members, (iv) holding that the addiction class members' claims for punitive damages were not time-barred even though the case was filed more than three years after a prominent addiction warning appeared on all packages, and (v) awarding punitive damages to punish defendants without proper consideration as to whether punitive damages were necessary to deter future misconduct. No further updates were provided in the Company's SEC report. Philip Morris International Inc., through its subsidiaries, manufactures and sells cigarettes, other tobacco products, and other nicotine-containing products. Philip Morris International Inc. was incorporated in 1987 and is headquartered in New York, New York. PLAZA SERVICES: Faces Forbes Suit in Eastern District of Virginia ----------------------------------------------------------------- A class action lawsuit has been filed against Plaza Services, LLC. The case is captioned Tiffany Forbes individually and on behalf of all others similarly situated, the Plaintiff, v. Plaza Services, LLC and John Does 1-25, the Defendants, Case No. 3:18-cv-00531-REP (E.D. Va., Aug. 6, 2018). The case is assigned to the Hon. District Judge Robert E. Payne. Plaza Services is doing business in asset management industry.[BN] The Plaintiff is represented by: Aryeh Eliezer Stein, Esq. MERIDIAN LAW, LLC 600 Reisterstown Road, Suite 700 Baltimore, MD 21208 Telephone: (443) 326 6011 Facsimile: (410) 653 1061 E-mail: astein@meridianlawfirm.com - and - Yaakov Saks, Esq. RC Law Group, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282 6500 Facsimile: (201) 282 6501 E-mail: ysaks@rclawgroup.com POLAR TECH: Cameron Sues over Collection of Biometric Data ---------------------------------------------------------- BRENT CAMERON, individually and on behalf of all others similarly situated, the Plaintiff, v. POLAR TECH INDUSTRIES, INC., and ADP, LLC, the Defendants, Case No. 2018CH10001 (Ill. Cir. Ct., Cook Cty. Aug. 7, 2018), seeks to redress and curtail Defendants' unlawful collection, use, storage, and disclosure of Plaintiff's sensitive biometric data. According to the complaint, the Defendant Polar Tech is a manufacturer, supplier, and producer of insulated packaging options for protecting temperature sensitive items during the shipment process. Polar Tech is located in Genoa, Illinois. When Polar Tech hires an employee, he or she is enrolled in its ADP employee database. Defendants use the employee database to monitor the time worked by each of Polar Tech's hourly employees. While many employers use conventional methods for tracking time worked (such as ID badge swipes or punch clocks), Polar Tech's employees are required to have their fingerprints scanned by a biometric timekeeping device. Biometrics are not relegated to esoteric corners of commerce. Many businesses -- as Defendants' -- and financial institutions have incorporated biometric applications into their workplace in the form of biometric timeclocks, and into consumer products, including such ubiquitous consumer products as checking accounts and cell phones. Unlike ID badges or time cards -- which can be changed or replaced if stolen or compromised -- fingerprints are unique, permanent biometric identifiers associated with each employee. This exposes Polar Tech employees to serious and irreversible privacy risks. For example, if a database containing fingerprints or other sensitive, proprietary biometric data is hacked, breached, or otherwise exposed -- like in the recent Yahoo, eBay, Equifax, Uber, Home Depot, MyFitnessPal, Panera, Whole Foods, Chipotle, Omni Hotels & Resorts, Trump Hotels, and Facebook/Cambridge Analytica data breaches or misuses -- employees have no means by which to prevent identity theft, unauthorized tracking or other unlawful or improper use of this highly personal and private information. [BN] The Plaintiff is represented by: Ryan F. Stephan, Esq. Haley Jenkins, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue Suite 2560 Chicago, IL 60601 Telephone: (312) 233 1550 Facsimile: (312) 233 1560 E-mail: rstephan@stephanzouras.com hjenkins@stephanzouras.com PORTFOLIO RECOVERY: Summary Judgment OK'd in FDCPA Suit ------------------------------------------------------- In the case, RUFINO D. GARCIA, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, Case No. 1:15-cv-3685 (NLH/JS) (D. N.J.), Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey granted the Defendant's Motion for Summary Judgment. The case is a Fair Debt Collections Practices Act ("FDCPA") case brought under the theory that the Defendant filed a state court collection lawsuit against Garcia without any intent to prove its claims. The Defendant contends the Plaintiff defaulted on a Citibank, N.A./Sears credit card account, which had a balance of $6,139.75 at the time of default. The Plaintiff denies that he defaulted on the account and that there was any balance on the account. The Defendant purchased a portfolio of Citibank, N.A./Sears credit card accounts, which it contends included the Plaintiff's account. It contends the Plaintiff's account was assigned to one of its staff counsel, Thomas Murtha, for review. The Defendant contends Murtha determined the Plaintiff's account was suitable for collection action. A complaint was filed in the New Jersey Superior Court, Law Division on June 3, 2014. After the filing of the state court complaint, the Plaintiff retained an attorney and filed an answer. In connection with that action, the Defendant produced monthly statements from Citibank, load data, and the affidavit of assignment and sale. It contends this information was sufficient to obtain a judgment under New Jersey law. The state court trial was originally scheduled for Sept. 8, 2014. The Plaintiff's lawyer thereafter requested a continuance, causing the trial to be rescheduled for Oct. 6, 2014. The Defendant contends Murtha had another trial scheduled in a different courthouse on Oct. 6, 2014, which the Plaintiff denies. Accordingly, it contends Murtha hired a contract attorney from "Attorneys on Demand" to appear on the trial date and seek a further continuance. The Plaintiff denies this contention, arguing that the Defendant cannot name or identify the contract attorney hired. On Oct. 6, 2014, no lawyer or representative for the Defendant appeared. The state court action was thereafter dismissed without prejudice. According to the Plaintiff, the state court judge remarked to them that Portfolio hardly ever showed up for trial dates. The Defendant contends that, because of the contract attorney's error, Murtha exercised his discretion and chose not to re-file the case. On June 2, 2015, the Plaintiff filed a purported class action, alleging a violation of the FDCPA. His Complaint pleads the Defendant violated the following provisions of the FDCPA: (i) 15 U.S.C. Section 1692e by using false, deceptive, or misleading representation or means in connection with the collection of alleged debts; (iii) 15 U.S.C. Section 1692e(5) by threatening to take action that is not intended to be taken; (iii) 15 U.S.C. Section 1692e(10) by using false representations or deceptive means to collect or attempt to collect alleged debts; and (iv) 15 U.S.C. Section 1692f by using unfair or unconscionable means in connection with the collection of alleged debts. In an Aug. 9, 2017 Opinion and Order, the Court denied the Plaintiff's Motion for Class Certification. Accordingly, all that remains before the Court are the Plaintiff's individual claims under the FDCPA. The Defendant filed its Motion for Summary Judgment on Oct. 31, 2017. Preliminarily, Judge Hillman finds the statute on its face confined to a "threat" of action, not the action itself. Moreover, he does not find it reasonable to assume that the filing of a complaint to collect a debt is tantamount to showing an intention (or threat) to litigate that claim on the merits. He also finds similarly that the filing of a state court collection action, even without the intention of eventually proving the merits of the action at trial, does not constitute a "false representation or deceptive means" to collect the debt, largely for the same reasons he finds no violation of Section 1692e(5) or (10). The Judge further finds that the Plaintiff's claim under 15 U.S.C. Section 1692f must fail as well. The Plaintiff does not indicate a particular subsection that was allegedly violated. Although the Third Circuit has not yet explicitly addressed the issue, courts in the circuit have held that conduct that is a violation of another section of the FDCPA cannot be the basis for a separate claim under Section 1692f. Because the conduct that the Plaintiff alleges fits within another provision of the FDCPA, his Section 1692f claim, fails to state a claim upon which relief can be granted. Finally, because the list of subsections is non-exhaustive, a debt collection practice can be a false, deceptive, or misleading practice in violation of section 1692e even if it does not fall within any of the subsections. The Judge does not find the Defendant's conduct otherwise constitutes a false deceptive or misleading practice. Judge Hillman concludes that the Plaintiff has failed to show a violation of the FDCPA. He granted the Defendant's Motion for Summary Judgment. An appropriate Order will be entered. A full-text copy of the Court's June 29, 2018 Opinion is available at https://is.gd/e1bh9U from Leagle.com. RUFINO D. GARCIA, on behalf of himself and those similarly situated, Plaintiff, represented by CHRISTOPHER MARKOS -- cmarkos@wcblegal.com -- WILLIAMS CUKER BEREZOFSKY & PETER COLONNA-ROMANO, BEREZOFSKY LAW GROUP, LLC. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant, represented by AMANDA LYN GENOVESE -- amanda.genovese@troutmansanders.com -- TROUTMAN SANDERS LLP. PORTLAND GENERAL: Appeal in Trojan Class Action Still Pending ------------------------------------------------------------- Portland General Electric Company 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 Court of Appeals for the State of Oregon has yet to issue a decision on plaintiffs' appeal related to customer class action lawsuits. In 1993, PGE closed the Trojan nuclear power plant (Trojan) and sought full recovery of, and a rate of return on, its Trojan costs in a general rate case filing with the Public Utility Commission of Oregon. In 1995, the OPUC issued a general rate order that granted the Company recovery of, and a rate of return on, 87% of its remaining investment in Trojan. Numerous challenges and appeals were subsequently filed in various state courts on the issue of the OPUC's authority under Oregon law to grant recovery of, and a return on, the Trojan investment. In 2007, following several appeals by various parties, the Oregon Court of Appeals issued an opinion that remanded the matter to the OPUC for reconsideration. In 2003, in two separate legal proceedings, lawsuits were filed against PGE on behalf of two classes of electric service customers: i) Dreyer, Gearhart and Kafoury Bros., LLC v. Portland General Electric Company, Marion County Circuit Court; and ii) Morgan v. Portland General Electric Company, Marion County Circuit Court. The class action lawsuits seek damages totaling $260 million, plus interest, as a result of the Company's inclusion, in prices charged to customers, of a return on its investment in Trojan. In August 2006, the Oregon Supreme Court (OSC) issued a ruling ordering the abatement of the class action proceedings. The OSC concluded that the OPUC had primary jurisdiction to determine what, if any, remedy could be offered to PGE customers, through price reductions or refunds, for any amount of return on the Trojan investment that the Company collected in prices. In 2008, the OPUC issued an order (2008 Order) that required PGE to provide refunds of $33 million, including interest, which refunds were completed in 2010. Following appeals, the 2008 Order was upheld by the Oregon Court of Appeals in 2013 and by the OSC in 2014. In June 2015, based on a motion filed by PGE, the Marion County Circuit Court (Circuit Court) lifted the abatement and in July 2015, heard oral argument on the Company's motion for Summary Judgment. In March 2016, the Circuit Court entered a general judgment that granted the Company's motion for Summary Judgment and dismissed all claims by the plaintiffs. In April 2016, the plaintiffs appealed the Circuit Court dismissal to the Court of Appeals for the State of Oregon. A Court of Appeals decision remains pending. PGE believes that the 2014 OSC decision and the Circuit Court decisions that followed have reduced the risk of any loss to the Company beyond the amounts previously recorded and discussed above. However, because the class actions remain subject to a decision in the appeal, management believes that it is reasonably possible that such a loss to the Company could result. As these matters involve unsettled legal theories and have a broad range of potential outcomes, sufficient information is currently not available to determine the amount of any such loss. Portland General Electric Company, an integrated electric utility company, engages in the generation, wholesale purchase, transmission, distribution, and retail sale of electricity in the state of Oregon. The company was founded in 1930 and is headquartered in Portland, Oregon. PROFESSIONAL MEDICAL: Sanders Settlement Class Okayed ----------------------------------------------------- In the lawsuit captioned LINDA SANDERS, on behalf of herself and all others similarly situated, the Plaintiff, vs. PROFESSIONAL MEDICAL MANAGEMENT, INC. d/b/a FINANCIAL RECOVERIES; and JOHN DOES 1-25, the Defendants, Case No. 2:16-cv-05634-M (D.N.J.), the Hon. Judge Mark Falk entered an order on August 8, 2018, certifying a Class solely for settlement purposes: "(a) all natural persons in New Jersey (b) who were sent a document to the Complaint which Plaintiff purports violated the fair Debt Collection Practices Act on or after July 25, 2015 and through July 25, 2016. The Class described above includes approximately 1,093 persons." The Court approves the proposed form of notice to the class members, to be directed to the last known address of the class members as shown on Defendant's records. Defendants shall cause the administrator to mail notice to class members on or before, Dec. 5, 2018 (within 30 days after entry of the Preliminary Approval Order). The administrator will have the notice sent by any form of bulk mail that provides address forwarding mail to each address. It will re-mail any notice that is returned with a forwarding address within five business days. The Court finds that mailing of the class notice and the other measures specified above to locate and notify members of the class is the only notice required and that such notice satisfies the requirements of due process and FED. R. CIV. P. 23(c)(2)(B). Class members shall have 45 days from the mailing of class notices to request exclusion or object to the proposed settlement. If notice is mailed on Sept. 18, 2018, Class members shall have until October 25, 2018 to request exclusion, or object to the proposed settlement. Any class member who desires to exclude him or herself from the action must mail a request for exclusion to counsel for Defendant and Class Counsel by that date. Class Counsel shall forward all opt out requests to Counsel for Defendant. Any class members who wish to object to the settlement must submit an objection in writing to the Clerk of the United States District Court for the District of New Jersey, and serve copies of the objection on counsel for Plaintiff and Defendant by that date. Any objection must include the name and number of the case and a statement of the reasons why the objector believes that the Court should find that the proposed settlement is not in the best interests of the class. Objectors who have filed written objections to the settlement must also appear at the hearing and be heard on the fairness of the settlement. PROSPECT CHARTERCARE: Faces Suit Over Retirement Plan Mismanagement ------------------------------------------------------------------- Stephen Del Sesto, as receiver and administrator of the St. Joseph Health Services of Rhode Island Retirement Plan, Gail J. Major, Nancy Zompa, Ralph Bryden, Dorothy Willner, Caroll Short, Donna Boutelle, and Eugenia Levesque, in their individual capacity and on behalf of all other plan participants, Plaintiffs v. Prospect Chartercare, LLC, Chartercare Community Board, St. Joseph Health Services of Rhode Island, Prospect Chartercare SJHSRI, LLC, Prospect Chartercare RWMC, LLC, Prospect East Holdings, Inc., Prospect Medical Holdings, Inc., Roger Williams Hospital, Chartercare Foundation, The Rhode Island Community Foundation, Roman Catholic Bishop of Providence, Diocesan Administration Corporation, Diocesan Service Corporation, and The Angell Pension Group, Inc., Defendants, Case No. 18-cv-00328, (D. R.I., June 18, 2018), seeks to enforce benefits promises and damages resulting from breach of contract in violation of the Employee Retirement Income Security Act of 1974. The case concerns an insolvent defined benefit retirement plan with over 2,700 participants, consisting of hospital nurses and other hospital workers who, after many years of dedicated service to their patients and SJHSRI, learned in August of 2017 that the Plan had not been adequately funded. The disclosure occurred when the Plan was placed into receivership by SJHSRI, with the request that the Rhode Island Superior Court approve a virtually immediate 40% across-the-board reduction in benefits. St. Joseph Health Services of Rhode Island Retirement Plan is a defined benefit retirement plan based in Rhode Island with over 2,700 participants. Chartercare owns and operates health care facilities in Rhode Island, including but not limited to two hospitals, Roger Williams Hospital and Our Lady of Fatima Hospital. [BN] Plaintiff is represented by: Max Wistow, Esq. Stephen P. Sheehan, Esq. Benjamin Ledsham, Esq. WISTOW, SHEEHAN & LOVELEY, PC 61 Weybosset Street Providence, RI 02903 Tel: (401) 831-2700 Fax: (401) 272-9752 Email: mwistow@wistbar.com spsheehan@wistbar.com bledsham@wistbar.com RAYMOURS FURNITURE: E. Manopla's Suit Moved to N.D.N.Y. ------------------------------------------------------- In the case, EVELYN MANOPLA, individually and on behalf of all other similarly situated, Plaintiff, v. RAYMOURS FURNITURE COMPANY, INC. d/b/a RAYMOUR & FLANIGAN, a division of 1st Source Bank, Defendant, Civil Action No. 3:17-cv-7649-BRM-LHG (D. N.J.), Judge Brian R. Martinotti of the U.S. District Court for the District of New Jersey granted Raymour & Flanigan's Motion to Transfer Venue to the United States District Court for the Northern District of New York. Manopla alleges to have received a series of unwanted automated text messages from Raymour. The unsolicited messages were strictly commercial in nature and provided those who gave Raymour their cell phone number with updates about upcoming promotions and sweepstakes. According to each message, a recipient could stop the messages by texting "STOPRF" to the number sending the automated replies. Manopla contends she properly followed the instructions to halt the messages, but Raymour continued to send promotional text messages for the next seven months. To be considered for a sweepstakes, Raymour was hosting and in which Manopla participated, customers had to fill out and properly submit an online form to Raymour. When Manopla filled out the online form, she checked off two boxes. These checked boxes indicated to Raymour that Manopla agreed to receive automated, promotional text messages to her cell phone from Raymour, and to be bound by the Sweepstakes Official Rules. The Sweepstakes Agreement could be accessed by two hyperlinks within the online form itself. Both hyperlinks were featured on the same page. Each hyperlink, if clicked, would send the user to the Sweepstakes Agreement, which contained a forum-selection clause. The clause states any and all disputes, claims and causes of action arising out of, or connected with, the Sweepstakes or any prize awarded will be resolved individually, without resort to any form of class action, and exclusively by the appropriate court located in the state of New York. Manopla argues she would not have been able to submit her entry form and would not have been eligible to enter the Sweepstakes without checking the box indicating that she read and agreed to the Sweepstakes Agreement. On Sept. 29, 2017, Manopla filed her class action complaint, and on Nov. 11, 2017, Raymour filed a Motion to Transfer the case to the Northern District of New York, based on the forum-selection clause stated in the Sweepstakes Agreement. Manopla argues the terms of the Sweepstakes Agreement were unenforceable, and therefore, the forum-selection clause cannot be binding on her. Judge Martinotti finds that the action could have been brought in the Northern District of New York and may, therefore, be transferred to that court pursuant to the plain language of 28 U.S.C. Section 1404(a). It states that a district court may transfer any civil action to any other district or division where it might have been brought. Manopla has failed to show the forum-selection clause is invalid and that enforcement of the forum-selection clause would be unreasonable or violate public policy. She claims the forum-selection clause is unenforceable because Raymour's website did not make clear that she was agreeing to an extensive terms of service requiring, inter alia, Manopla to litigate any grievances she had against Raymour in a foreign jurisdiction far from home. The Judge finds this is insufficient to overcome Raymour's Motion to Transfer based on the forums-election clause. Finally, the Judge finds that Manopla has not met her burden to show that Raymour's Sweepstakes Agreement, and the forum-selection clause found within, demonstrates a strong showing of unreasonableness. Because Manopla has not demonstrated, for the purpose of overcoming the forum-selection clause, that Raymour's interface hid or concealed the Sweepstakes Agreement terms, Raymour's Motion to Transfer Venue to the United States District Court for the Northern District of New York is granted. A full-text copy of the Court's June 29, 2018 Opinion is available at https://is.gd/roWpEF from Leagle.com. EVELYN MANOPLA, individually and on behalf of all others similarly situated, Plaintiff, represented by YITZCHAK ZELMAN -- Yzelman@MarcusZelman.com -- Marcus Zelman, LLC & ARI HILLEL MARCUS -- Ari@MarcusZelman.com -- MARCUS ZELMAN LLC. RAYMOURS FURNITURE COMPANY, INC., doing business as, Defendant, represented by JASON HARRIS KISLIN -- kislinj@gtlaw.com -- GREENBERG TRAURIG, LLP & PHILIP R. SELLINGER -- sellingerp@gtlaw.com -- GREENBERG TRAURIG, LLP. RECHNITZ CORE: Faces Roan Suit for Underfunding Nursing Facility ---------------------------------------------------------------- ROBERT ROAN, on behalf of himself and similarly situated California residents v. SHLOMO RECHNITZ; RECHNITZ CORE GP; SOL HEALTHCARE, LLC; OAKLAND HEALTHCARE & WELLNESS CENTER, LLC; ROCKPORT ADMINISTRATIVE SERVICES, LLC; and DOES 1 through 250, inclusive, Case No. RG618915239 (Cal. Super. Ct., Alameda Cty., August 2, 2018), alleges violations of the Consumer Legal Remedies Act and the Resident Rights (Health & Safety Code). Mr. Roan alleges that the Defendants maximize profits from the operation of their skilled nursing facility by underfunding and understaffing the Facility, which led to the violation of the rights of the Plaintiff and the class. Shlomo Rechnitz is the managing agent and/or controlling owner of the Corporate Defendants or some other phantom vehicle created and maintained to hide his total and complete operational control of the Facility. He owns in excess of 50% of the Facility and is its true and actual operator and director. Oakland Healthcare & Wellness Center, LLC, and the Doe Defendants provide long-term custodial care as a 24-hour skilled nursing facility under the fictitious name Oakland Healthcare & Wellness Center located at 3030 Webster Street, in Oakland, California. Sol Healthcare, LLC is the Manager of Oakland Health. Sol's principal place of business is in Los Angeles, the same address as Oakland Healthcare. Rechnitz Core GP is the Manager of Sol, with all the legal rights and obligations attendant thereto. Rechnitz's principal place of business is in Los Angeles, the same address as Oakland Healthcare. Rockport Administrative Services, LLC is a limited liability company with its principal place of business located in Los Angeles.[BN] The Plaintiff is represented by: Stephen M. Garcia, Esq. GARCIA, ARTIGLIERE & MEDBY One World Trade Center, Suite 1950 Long Beach, CA 90831 Telephone: (562) 216-5270 Facsimile: (562) 216-5271 E-mail: sgarcia@lawgarcia.com - and - Robert S. Arns, Esq. Julie C. Erickson, Esq. THE ARNS LAW FIRM 515 Folsom Street San Francisco, CA 94105 Telephone: (415) 495-7800 Facsimile: (415) 495-7888 E-mail: rsa@arnslaw.com jce@arnslaw.com REGIONAL MEDICAL: Sued by Sandusky for Sending Unsolicited Faxes ---------------------------------------------------------------- SANDUSKY WELLNESS CENTER, LLC, an Ohio limited liability company, individually and as the representative of a class of similarly-situated persons v. REGIONAL MEDICAL IMAGING, P.C., a Michigan professional corporation, Case No. 2:18-cv-12391-BAF-MKM (E.D. Mich., August 2, 2018), challenges the Defendant's alleged practice of sending "unsolicited advertisements" by facsimile, in violation of the federal Telephone Consumer Protection Act of 1991. Regional Medical Imaging, P.C., is a Michigan professional corporation with its principal place of business in Flint, Michigan. The Company provides imaging services to physicians and patients throughout mid-Michigan.[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 E-mail: rkelly@andersonwanca.com RESEARCH TRIANGLE: Faces Souders Suit Alleging TCPA Violation ------------------------------------------------------------- KRISTYNA SOUDERS, individually and on behalf of all others similarly situated v. RESEARCH TRIANGLE INSTITUTE, d.b.a. RTI INTERNATIONAL; and DOES 1 through 10, inclusive, Case No. 1:18-at-00560 (E.D. Cal., August 2, 2018), alleges that the Defendants negligently contacted the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, thereby, causing her to incur unwanted and unnecessary charges and invading her privacy. Research Triangle Institute, doing business as RTI International, operates as a nonprofit institute that provides research, development, and technical services to governments, businesses, foundations, universities, and other clients worldwide. The Company offers services in the areas of surveys and data collection, statistics and data science, program design and implementation, research technologies, drug discovery and development, and analytical laboratory science; evaluation, assessment, and analysis; and engineering and technology R&D. The true names and capacities of the Doe Defendants sued are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com RESEARCH TRIANGLE: Souders Files Suit for Invasion of Privacy ------------------------------------------------------------- KRISTYNA SOUDERS, individually and on behalf of all others similarly situated v. RESEARCH TRIANGLE INSTITUTE, d.b.a. RTI INTERNATIONAL; and DOES 1 through 10, inclusive, Case No. 1:18-cv-01043-DAD-JLT (E.D. Cal., August 2, 2018), accuses the Defendants of negligently contacting the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, thereby, causing her to incur unwanted and unnecessary charges and invading her privacy. Research Triangle Institute, doing business as RTI International, operates as a nonprofit institute that provides research, development, and technical services to governments, businesses, foundations, universities, and other clients worldwide. The Company offers services in the areas of surveys and data collection, statistics and data science, program design and implementation, research technologies, drug discovery and development, and analytical laboratory science; evaluation, assessment, and analysis; and engineering and technology R&D. The true names and capacities of the Doe Defendants sued are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com RICHANI RESTAURANT: Coleman Suit Seeks to Recover Unpaid Wages -------------------------------------------------------------- Melonie Coleman, on behalf of herself and all others similarly situated v. Richani Restaurant Group, LLC dba Johnny Brusco's New York Style Pizza, Case No. 2:18-cv-00114 (E.D. Tenn., July 20, 2018), seeks to recover unpaid minimum and overtime wages under the Fair Labor Standards Act. The Plaintiff Melonie Coleman is a resident of Kingsport, Sullivan County, Tennessee and was employed by Richani as a server at its restaurant located in Kingsport, Tennessee from in or around 2008 until June 2017. The Defendant Richani operates at least three pizza restaurants of Johnny Brusco's New York Style Pizza in Tennessee. [BN] The Plaintiff is represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Tel: (615) 244-2202 Fax: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com ROYALTON 44: Cedric Bishop Sues Royalton Hotel in New York ---------------------------------------------------------- A class action lawsuit has been filed against Royalton 44 Hotel, LLC. The case is captioned as Cedric Bishop, on behalf of himself and all others similarly situated, the Plaintiff, v. Royalton 44 Hotel, LLC, doing business as: Royalton Hotel NYC, the Defendant, Case No. 1:18-cv-07066 (S.D.N.Y., Aug. 6, 2018), seeks to recover Royalton owns and operates a 168-room hotel and offers boarding, lodging and dining services.[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 RS&H INC: Jones Appeals M.D. Florida Ruling to 11th Circuit ----------------------------------------------------------- Plaintiff Bradley Jones filed an appeal from a court ruling in the lawsuit styled Bradley Jones v. RS&H, Inc., Case No. 8:17-cv-00054-SCB-JSS, in the U.S. District Court for the Middle District of Florida. The appellate case is captioned as Bradley Jones v. RS&H, Inc., Case No. 18-13068, in the United States Court of Appeals for the Eleventh Circuit. As previously reported in the Class Action Reporter, the District Court has denied a motion for reconsideration in the age discrimination lawsuit filed by Mr. Jones, a former employee of the Florida company. In her ruling, Judge Susan Bucklew turned away an attempt by at least 21 former workers of engineering firm RS&H Inc. seeking class-action status. On January 6, Mr. Jones, acting on his own behalf and others in a similar situation, filed suit alleging violation of the Age Discrimination in Employment Act of 1967 and The Florida Civil Rights Act. In his complaint, Mr. Jones stated that he was told his 2015 termination was part of a reduction in force and that he was one of 23 employees nationwide to be terminated, including seven employees at the Tampa location. He alleges that all seven of the employees terminated at the Tampa location were more than 50 years old. He was 53 years old at the time of his termination, the suit states. Mr. Jones further alleges that RS&H hired young employees and then terminated the older employees once the younger hires were trained.[BN] Plaintiff-Appellant BRADLEY JONES, on behalf of himself and others similarly situated, is represented by: Kendra Dawn Presswood, Esq. SHANKMAN LEONE, PA 707 N Franklin St., Suite 500 Tampa, FL 33602 Telephone: (813) 228-1099 E-mail: kpresswood@shankmanleone.com Defendant-Appellee RS&H, INC., is represented by: Kim Bouchard-Chaimowiz, Esq. ROGERS TOWERS, PA 818 A1A N, Suite 208 Ponte Vedra Beach, FL 32082 Telephone: (904) 346-5516 E-mail: KBouchardC@rtlaw.com - and - Samuel J. Horovitz, Esq. Lori Schon Patterson, Esq. ROGERS TOWERS PA 1301 Riverplace Blvd., Suite 1500 Jacksonville, FL 32207 Telephone: (904) 398-3911 E-mail: shorovitz@rtlaw.com lspatterson@rtlaw.com SAMSUNG ELECTRONICS: Tobin Sues over Design Defect of LED TVs ------------------------------------------------------------- EDWARD TOBIN, individually and on behalf of all others similarly situated, the Plaintiff, v. SAMSUNG ELECTRONICS AMERICA, INC., the Defendant, Case No. 2:18-cv-12473 (D.N.J., Aug. 6, 2018), seeks relief as a result of Defendant's violation of the Magnuson-Moss Warranty Act, breaches of express and implied warranty, unjust enrichment, violation of New York's General Business Law, and fraud. The case is a class action against Samsung Electronics America, Inc. for the manufacture and sale of certain Samsung LED Televisions, all of which suffer from an identical design defect. The defect manifests itself in the form of overheating, which results in burning, melting, and in some instances, causing permanent vertical and/or horizontal lines to appear on the television screen, as well as other video anomalies, which obscure the viewing screen and renders the Products unsuitable for their principal and intended purpose. According to the complaint, the Defendant has been aware of the defect since at least 2015. Nevertheless, Defendant continues to sell the Products to unsuspecting customers upon the affirmative misrepresentation that the Products are fit for their intended purpose, perpetrating massive consumer fraud on millions of consumers. Defendant's misrepresentations and omissions concerning the Products render the Products worthless. Class members thought they were purchasing safe, quality television sets from a top-tier manufacturer of electronics. Instead, class members spent hundreds, and even thousands of dollars on worthless televisions sets rendered unusable due to overheating. Samsung Electronics America, Inc. supplies consumer electronics and digital products in the United States.[BN] Attorney for Plaintiff: Andrew Obergfell, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989 9113 Facsimile: (212) 989 9163 E-mail: aobergfell@bursor.com SANTANDER CONSUMER: Court Denies Bids to Intervene in Speedpay Suit ------------------------------------------------------------------- In the case, APRIL LINDBLOM, individually and on behalf of all others similarly situated, Plaintiff, v. SANTANDER CONSUMER USA, INC., Defendant, Case No. 1:15-cv-00990-BAM (E.D. Cal.), Magistrate Judge Barbara A. McAuliffe of the U.S. District Court for the Eastern District of California denied the two motions to intervene filed by proposed intervenors Vicki Blakely, Steven Lawson, Christy Mitchell, Leslie Williams, James Rolland, Jaynellis Salinas ("Intervenors I") and Kathleen Jones, Kevin Grief, Samuel Carter, and Annie Bluitt ("Intervenors II") to intervene as the class representatives. In March 2007, the Plaintiff purchased a 2006 Jeep Liberty which she financed with a loan serviced by the Defendant. At times, she made payments on the loan by phone or online using Western Union's Speedpay service. To do so, the Plaintiff was required to pay a flat $10.95 fee per transaction to Western Union. She alleges Western Union then remitted most of the Speedpay fee it collected to Santander. The Plaintiff challenges the legality of the Speedpay fees retained by Santander under Section 1692f(1) of the Fair Debt Collections Practices Act ("RFDCPA"), and in turn, its California counterpart the Rosenthal Fair Debt Collections Act. On Oct. 30, 2014, the initial complaint giving rise to the putative class action was filed in the U.S. District Court for the Northern District of Alabama. That complaint styled Woods v. Santander Consumer USA Inc., No. 2:14-cv-02104-MHH (N.D. Ala.), accused the Defendant of illegally charging Speedpay Fees in violation of the FDCPA. On Dec. 5, 2014, the initial Plaintiffs amended the complaint to add Lindblom as a named Plaintiff. On June 22, 2015, the Alabama District Court severed the Plaintiff's suit and transferred the matter to the Court. Following transfer, the Court ruled on two motions to dismiss and denied Defendant Santander's motion for judgment on the pleadings. The Court subsequently entered a scheduling order and the Plaintiff's suit proceeded to class discovery on June 22, 2016. After being continued twice, the deadline for fact discovery closed on Feb. 27, 2017. On Oct. 13, 2017, the Plaintiff moved to certify a class composed of all individuals in the state of California, who, during the applicable limitations period, paid a convenience fee through Western Union's Speedpay service in connection with any consumer loan held and/or serviced by Santander. The Defendant opposed certification in part by challenging the Plaintiff's adequacy as a class representative. It argued that the Plaintiff could not be a member of the defined class because her claim fell outside of the one-year applicable statute of limitations period. At oral argument on Jan. 12, 2018, the Court expressed concern that the Plaintiff was not a member of the class because she had not paid the Speedpay fee within the applicable limitations period; requiring her to rely on equitable tolling to qualify as a member of the defined class. The Plaintiff's counsel acknowledged that he was "struggling to figure out a way" that the Plaintiff could represent the class given the applicable limitations period. The Plaintiff's counsel later responded that due to the Court's concerns regarding the Plaintiff's class membership, he intended to file a motion for intervention to name alternative class representatives. Accordingly, following the hearing and while the motion for class certification was under submission, proposed Intervenors I filed their Motion for Leave to Intervene as the alternative class representatives. On Jan. 26, 2018, the Court denied the Plaintiff's Motion for Class Certification, finding that Lindblom was not an adequate class representative and her claims were atypical of the class. Then, Intervenors II filed a second motion to intervene as the class representatives. In the two pending Motions to Intervene, the 10 Movants seek to intervene in the litigation to protect their ability to bring their RFDCPA claim as part of a class action. In their motion and attached complaint, they allege that they are individuals residing throughout California in various counties, including Sacramento, Los Angeles, Riverside and Alameda. The Movants further allege that they each purchased a vehicle through an auto loan that came to be serviced by the Defendant. They paid on the loan over the phone and were charged the Speedpay fee, which Santander collected. The Movants seek permissive intervention on grounds that: (1) their claims share common questions of law and fact with those of Lindblom; (2) as putative class members, they have a direct interest in the outcome of the case; and (3) the motion is timely and will neither delay nor prejudice the adjudication of the original parties' rights. The Defendant has filed a response in opposition, arguing that the Movants' motions are untimely and would prejudice the Defendant if granted. In sum, Magistrate Judge McAuliffe finds that the Movants have failed to meet the threshold requirement of timeliness for permissive intervention under Federal Rule of Civil Procedure 24(b). A finding of untimeliness is fatal to an application for intervention. Accordingly, she declines to exercise its discretion to grant permissive intervention. For the reasons she described, the Magistrate Judge denied the the Motions for permissive intervention the Movants to intervene. A full-text copy of the Court's June 29, 2018 Order is available at https://is.gd/pgR3ZU from Leagle.com. April Lindblom, Plaintiff, represented by D. Frank Davis -- fdavis@davisnorris.com -- Davis & Norris, LLP, pro hac vice, John E. Norris -- jnorris@davisnorris.com -- Davis & Norris, LLP, pro hac vice, Kristan B. Rivers -- krivers@davisnorris.com -- David & Norris LLP, pro hac vice, Wesley W. Barnett , Davis & Norris, LLP, pro hac vice & Benjamin P. Tryk -- ben@tryklaw.com -- Tryk Law, PC. Santander Consumer USA Inc., Defendant, represented by Chad R. Fuller -- chad.fuller@troutman.com -- Troutman Sanders LLP, David S. Reidy -- dreidy@mcguirewoods.com -- McguireWoods LLP, Marc A. Lackner, Mcguirewoods LLP, R. Frank Springfield -- fspringfield@burr.com -- Burr & Forman, LLP, pro hac vice, Virginia Bell Flynn -- virginia.flynn@troutman.com -- Troutman Sanders LLP, pro hac vice, Zachary D. Miller -- zmiller@burr.com -- Burr & Forman, LLP, pro hac vice & Justin M. Brandt -- justin.brandt@troutman.com -- Troutman Sanders LLP. SANYO ENERGY: Sells Defective Photovoltaic Modules, Dickert Says ---------------------------------------------------------------- MYRA DICKERT and HOWARD DICKERT, on behalf of themselves and all others similarly situated v. SANYO ENERGY (U.S.A.) CORPORATION; SANYO NORTH AMERICA CORPORATION; PANASONIC CORPORATION OF NORTH AMERICA; and DOES 1-20, inclusive, Case No. 3:18-cv-04664 (N.D. Cal., August 2, 2018), arises out of the manufacture and sale of alleged defective photovoltaic modules manufactured and marketed by the Defendant from approximately 2001 to 2010. A defect in a component of the SANYO Panels causes the SANYO Panels to progressively lose actual power output and to fail, resulting in power output degradation, the Plaintiffs contend. They assert that this defect and power output degradation causes serious safety risks, including the risk of fire. SANYO Energy was a Delaware corporation from 1987 until 2009. SANYO Energy's principal place of business was located in San Diego, California, from approximately 1997 until sometime during 2008, including the times at which the Plaintiffs' panels were manufactured and marketed. SANYO Energy ceased to exist on July 1, 2009, when it was merged into SANYO North America Corporation. SANYO North America Corporation was a Delaware corporation from 1977 until 2015. During the entirety of the Class period, SANYO NA's principal place of business was located in San Diego. SANYO NA ceased to exist on April 1, 2015, when it was merged into Panasonic Corporation of North America. Prior to April 1, 2015, SANYO NA was a subsidiary of SANYO Electric Company, Inc. SANYO Electric and its subsidiaries became consolidated subsidiaries of Panasonic Corporation in 2009 and became wholly owned subsidiaries of Panasonic in 2011. Panasonic Corporation of North America is a Delaware corporation with its principal place of business located in Newark, New Jersey, and is a wholly owned subsidiary of Panasonic Corporation. The Plaintiffs are unaware of the true names and capacities of the Doe Defendants.[BN] The Plaintiffs are represented by: David M. Birka-White, Esq. BIRKA-WHITE LAW OFFICES 178 E. Prospect Avenue Danville, CA 94526 Telephone: (925) 362-9999 Facsimile: (925) 362-9970 E-mail: dbw@birka-white.com - and - Steven T. Knuppel, Esq. LAW OFFICES OF STEVEN T. KNUPPEL 178 E. Prospect Avenue Danville, CA 94526 Telephone: (925) 362-9999 Facsimile: (925) 362-9970 - and - John D. Green, Esq. FARELLA BRAUN & MARTEL LLP 235 Montgomery Street, Suite 1700 San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 E-mail: jgreen@fbm.com - and - Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com SH GROUP: Faces Cedric Bishop Suit in New York Southern District ---------------------------------------------------------------- A class action lawsuit has been filed against SH Group Operations LLC. The case is captioned as Cedric Bishop, on behalf of himself and all others similarly situated, the Plaintiff, v. SH Group Operations LLC, the Defendant, Case No. 1:18-cv-07068 (S.D.N.Y., Aug. 6, 2018). SH Group, an affiliate of global private investment firm Starwood Capital Group, is a hotel brand management company that operates Hotels and Baccarat Hotels.[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 SMITH TRANSPORT: Jerome Ratliff Sues over Background Checks ----------------------------------------------------------- Jerome Ratliff, Jr., the Plaintiff, v. Smith Transport, Inc.; and Smith Transport U.S.A., Inc., the Defendant, Case No. 2018CH09979 (Ill. Cir. Ct., Cook Cty., Aug. 6, 2018), alleges that Defendants have continually failed to follow reasonable procedures to ensure that Plaintiff and the Class Members are provided with their statutorily mandated rights to the information contained in their consumer reports, pursuant to the Fair Credit Reporting Act. According to the complaint, Smith Transport is a self-proclaimed leader in the trucking and transportation industry. Seeking to expand its fleet, Smith encourages consumers to apply for driving positions by visiting its website and completing an online application. As a result of Defendants' conduct and their knowing and willful violations of 15 U.S. C. section 1681 b(b)(3)(B), the Plaintiff and the Class have suffered harm, including information injury, violation of privacy, and unfairly being denied access to employment.[BN] The Plaintiff is represented by: Adam C. York, Esq. Kamberlaw LLC 220 N. Green St. Chicago, IL 60607 Telephone: 212 920 3072 E-mail: ayork@kamberlaw.com masch@kamberlaw.com tdavis@kamberlaw.com SQUARETRADE INC: Swinton Seeks to Certify Settlement Class ---------------------------------------------------------- In the lawsuit entitled DAVID M. SWINTON, on behalf of himself and all others similarly situated, the Plaintiff, v. SQUARETRADE, INC., the Defendant, Case No. 4:18-cv-00144-SMR-SBJ (S.D. Iowa), the Plaintiff asks the Court for an order: a. preliminarily approving the parties' Settlement as fair, reasonable, and adequate; b. preliminarily certifying an opt-out Settlement Class of: "purchasers of certain types of protection plans that Defendant sells through Amazon.com." c. appointing Harley C. Erbe of Erbe Law Firm and Steven Wandro of Wandro & Associates, P.C., as Class Counsel; d. appointing David Swinton as the Representative Plaintiff for the Settlement Class; e. approving issuance of the Class Notice and Claim Form to the Class; and f. approving schedule of events and setting a final fairness hearing. Attorneys for Plaintiff: Harley C. Erbe, Esq. ERBE LAW FIRM 2501 Grand Avenue Des Moines, IO 50312 Telephone: (515) 281 1460 Facsimile: (515) 281 1474 E-mail: erbelawfirm@aol.com - and - Steven P. Wandro, Esq. WANDRO & ASSOCIATES 2501 Grand Avenue Des Moines, IO 50312 Telephone: (515) 281 1475 Facsimile: (515) 281 1474 E-Mail: swandro@2501grand.com STAR CAREER: Final Judgment in NJCFA Suit Partly Reversed --------------------------------------------------------- The Superior Court of New Jersey, Appellate Division, affirmed in part and reversed in part the District Court's Final Judgment in the case captioned SHIRLEY POLANCO, individually and on behalf of all others similarly situated, Plaintiff-Respondent/Cross-Appellant, v. STAR CAREER ACADEMY, SC ACADEMY HOLDINGS, INC. and SC ACADEMY, INC., Defendants-Appellants/Cross-Respondents, No. A-3756-15T2 (N.J. Super. App. Div.). After an adverse jury verdict, defendants Star Career Academy, SC Academy Holdings Inc. and SC Academy, Inc., appeal from the final judgment and several pre- and post-trial orders. This class action alleges violations of the New Jersey Consumer Fraud Act (Act). Star claims: Point I The Trial Court's Refusal To Interpret The Surgical Technology Law On Summary Judgment Was Reversible Error. Point II The Trial Court Committed Reversible Error By Precluding Star From Presenting Evidence To Show That Plaintiff Had Not Established The Elements Of The Njcfa Claim That She Was Asserting On Behalf Of The Class. A. It Was Reversible Error To Preclude Star From Presenting Jobs Evidence And Reasons For Unemployment Evidence To Show That Plaintiff Had Not Proven Her NJCFA Claim. B. It Was Reversible Error To Preclude Star From Presenting Value Evidence To Show That Plaintiff Had Not Proven Her NJCFA Claim. Point Iii The Trial Court Committed Reversible Error By Refusing To Decertify A Class Even Though Common Issues Did Not Predominate Over Individual Ones. Star argues in its first point that the court twice erred in refusing to grant its motions for summary judgment and, more specifically, to interpret the ST law in its favor. In ruling on a summary judgment motion, a trial court must consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The Court concludes that an individual seeking an education from a for-profit school like Star has the inherent right to know, prior to enrollment, that the school does not hold both programmatic and institutional credentials if for no other reason than to give students the choice to attend another institution that possesses both accreditations. Students who attend Star and similar vocational institutions are primarily interested in obtaining a degree to advance their professional careers and increase their earning potential. That Star was not programmatically credentialed, giving plaintiff all reasonable inferences from the summary judgment record, influenced certain potential employers of Star graduates. In light of these concerns, it is not unreasonable to conclude that a student deciding to enroll at Star, if informed that it did not have programmatic approval, would elect to enroll elsewhere and thus we cannot ignore that Star's potential and capacity to mislead plaintiff on this point is of material concern. Also, while the record contains allegations of multiple misrepresentations made by Star to certain class members unrelated to its programmatic accreditation which affects the propriety of class certification, as discussed in Section III based on just these genuine and material factual questions, summary judgment was appropriately denied. Star also argues that the court improperly certified the class because common issues did not predominate over individual ones. While the Court acknowledge the court divided the class into the aforementioned sub-groups to analyze the total paid by the class in relation to the differing circumstances of certain class members, in its view that segregation nevertheless demonstrates the significant individualized issues related to the nexus between Star's misrepresentations and the class members' damages. And, although the class members' damage calculations may differ, our concerns relate to the fact that the class, as evidenced by the sub-groups, cannot demonstrate economic loss on a common basis. While the Court finds that the class must be decertified, its decision should not be interpreted to conclude that a class is not an appropriate vehicle to address Star's purported misrepresentations and omissions surrounding the ST law for those who have paid tuition fees or other ascertainable losses. Such a class action may further the goals of judicial economy, cost-effectiveness, convenience, and consistent treatment of class members, However, any certified class must satisfy the relevant Rules governing class actions. That simply did not occur here. Star also argues that the court committed reversible error by precluding it from introducing evidence at trial related to: jobs that class members held jobs evidence; efforts of class members to get positions; and the value of the Star diploma to members of the class. The Plaintiff successfully thwarted the introduction of this evidence by maintaining that its damages theory was based on the class members' loss of tuition not lost wages or other job related damages and therefore the case was fundamentally different than the damages sought in Harnish or Markerdowne. But a party's stated theory of a case cannot serve as the basis to preclude an adverse party from introducing evidence to defend a claim, particularly when the evidence has the tendency in reason "to prove or disprove any fact of consequence to the determination of the action. Here, the excluded evidence related to materiality, causation and ascertainable loss. The Court acknowledges a trial court's authority under N.J.R.E. 403 to exclude otherwise relevant evidence. However, the Court's review of the trial record leads it to conclude that the preclusion of the value, jobs, and reasons for unemployment evidence resulted in a manifest denial of justice. Accordingly, the final judgment is affirmed in part, reversed and vacated in part and remanded for trial proceedings consistent with this opinion. A full-text copy of the N.J. App. Div.'s July 29, 2018 Opinion is available at https://tinyurl.com/yag9awo6 from Leagle.com. David Jay -- jayd@gtlaw.com -- argued the cause for appellants/cross-respondents (Greenberg Traurig, LLP, attorneys; David Jay, Jason H. Kislin -- kislinj@gtlaw.com -- and Paige S. Nestel -- nestelp@gtlaw.com -- on the brief). Patricia V. Pierce -- p.pierce@gpfflaw.com -- and Thomas More Marrone -- tom@moremarrone.com -- argued the cause for respondent/cross-appellant (Greenblatt Pierce Funt & Flores, LLC, and MoreMarrone, LLC, attorneys; Patricia V. Pierce and Thomas More Marrone, on the brief). Joseph B. Schmit -- jschmit@phillipslytle.com -- (Phillips Lytle, LLP) of the New York bar, admitted pro hac vice, argued the cause for intervenor Summer Street Capital Partners, LLC (John R. Altieri and Joseph B. Schmit, attorneys; Joseph B. Schmit, of counsel; John R. Altieri , on the brief). STATE UNIVERSITY: Court Narrows Claims in Sex Discrimination Suit ----------------------------------------------------------------- The United States District Court for the Northern District of New York granted in part and denied in part Defendant's Motion to Dismiss the case captioned ISIDORA PEJOVIC, CHAEE BEAN KANG, ALBA SALA HUERTA, and CHASSIDY KING, individually and on behalf of all those similarly situated, and GORDON GRAHAM, Plaintiffs, v. STATE UNIVERSITY OF NEW YORK AT ALBANY, and MARK BENSON, Defendants, No. 1:17-CV-1092 (TJM/DTS)(N.D.N.Y.). Plaintiffs Isidora Petrovic, Chaee Bean Kang, Alba Sala Huerta, and Chassidy King, who are former women's tennis players at the State University of New York (SUNY) at Albany, and their former coach, Gordon Graham, brought this action to redress alleged discrimination by Defendants SUNY Albany and SUNY Albany's Athletic Director, Mark Benson. Graham's Title IX Claims against Defendants Plaintiff Graham alleges the Defendant violated his rights under Title IX by terminating the women's tennis team. The Defendants argue that Graham has failed to state a claim under Title IX because the Complaint does not allege that Graham faced discrimination because of hissex, but only because of the sex of his players. The Court does not read this case to be one where Graham asserts a claim based on injuries faced only by others. The Court takes Graham's claim to be that he, too, suffered gender discrimination because of the cancellation of the women's tennis program. Graham's argument is that he was a victim of SUNY Albany's sex discrimination, which cost him his job coaching women. At least one court in this Circuit has addressed the issue of whether a male coach can bring a Title IX discrimination claim on his own behalf arising out of Title IX violations affecting a women's sports program. The Plaintiff was the head coach of the women's basketball team at Forham University. He alleged disparate treatment and impact because of allegedly inferior resources and opportunities" provided to the women's basketball team. The court concluded that gender-based employment discrimination by educational programs receiving federal financial support comes within the prohibition of Title IX. The Defendant sought dismissal, arguing in part that plaintiff's Title IX claim is premised not on plaintiff's gender, but on the gender of the students he coached. The court rejected that argument, noting that the prohibition of discrimination 'on the basis of sex' is broad enough to encompass a prohibition of discrimination against plaintiff on the basis of the sex of the players whom he coached. The Court is persuaded by the reasoning in the Morris case. Title IX is aimed at preventing sex discrimination at federally supported institutions. Title IX provides a private right of action for discrimination. The Plaintiff alleges sex discrimination and injury thereby. At least at this stage in the litigation, the Court must reject the Defendants' argument that the Plaintiff has not alleged sex discrimination that injured him. By the Defendants' logic, Graham could only have a claim if he were a woman coaching women. Ruling that way would constrict the definition of on the basis of sex unnecessarily. As such, the motion will be granted with respect to any retaliation claim that Graham may raise, but will be denied with respect to his Title IX discrimination claim. Section 1983 Age-Discrimination Claim Plaintiff Graham also asserts a claim of age discrimination against Defendant Benson under 42 USC Section 1983. As a preliminary matter, the Defendants argue that Graham cannot maintain a Section 1983 age-discrimination claim because such a claim could have been brought under the Age Discrimination in Employment Act. The Court finds that Plaintiff Graham has pled facts sufficient to make his claim to relief against Defendant Benson under Section 1983 plausible. The Plaintiff alleges that he was sixty-five at the time of the events in question. He also alleges superior performance as a tennis coach, having won numerous titles, including titles at SUNY Albany. The Defendant did not renew Graham's contract, and he alleges that the circumstances warranted such renewal. As to whether the circumstances permit at least a limited inference of discriminatory intent, the Court finds the allegations sufficient in this respect as well. The Plaintiff alleges that Benson asked Graham how old he was when he announced termination of the tennis team and told others at the meeting that Graham was close to retirement. Benson also told a former SUNY Albany tennis player who questioned the decision to terminate the team that Graham could 'retire if he wants to, since he was old enough. At this point in the litigation, such allegations are sufficient to create an inference that Benson's motivation in terminating the Plaintiff was his age. The motion will be denied in this respect. New York Human Rights Law/Declaratory Judgment The Defendants next contend that Plaintiff Graham's claim against SUNY Albany under the New York Human Rights Law is barred on sovereign immunity grounds. In any case, they insist, the Plaintiff has failed to state a claim in this respect. The Defendants also argue that Count V of the Complaint, which seeks a declaratory judgment that SUNY Albany breached the Stipulation, should be dismissed. The Plaintiffs have notified the Court that they intend to abandon these Counts. The Court will therefore grant the motion as unopposed with respect to Counts IV and V of the Complaint. The Court will grant the Defendants' motion to dismiss, in part and deny the motion in part, as follows: 1. The motion is granted with respect to: a. Any claim by Plaintiff Graham for Title IX retaliation; b. the Plaintiffs' Section 1983 claims against Defendant Benson in his official capacity; c. the Plaintiffs' claims brought pursuant to the New York Human Rights Law; d. the Plaintiffs' claims for declaratory judgment; e. the Plaintiffs' claims for punitive damages under Title IX; and f. the Plaintiffs' claims for punitive damages against Defendant Benson in his official capacity and against SUNY Albany under Section 1983. A full-text copy of the District Court's July 26, 2018 Decision and Order is available at https://tinyurl.com/y7krtssx from Leagle.com. Isidora Pejovic, individually and on behalf of all those similarly situated, Chae Bean Kang, individually and on behalf of all those similarly situated, Alba Sala Huerta, individually and on behalf of all those similarly situated, Chassidy King, individually and on behalf of all those similarly situated & Gordon Graham, Plaintiffs, represented by Bernays T. Barclay -- buz.barclay@rimonlaw.com -- Rimon, P.C. State University of New York at Albany & Mark Benson, Defendants, represented by Mark G. Mitchell, New York State Attorney General. STUDENT HELP: Bontrager Suit Alleges TCPA Violation --------------------------------------------------- Nicholas Bontrager, individually and on behalf of all others similarly situated v. Student Help Center, LLC, and Does 1 through 10, Case No. 2:18-cv-06295 (C.D. Calif., July 20, 2018), seeks damages and injunctive relief pursuant to the Telephone Consumer Protection Act. The Plaintiff is a natural person and citizen and resident of the State of California. The Defendant is a social media company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (877) 206-4741 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com SURVEY SAMPLING: Zozula Class Suit Asserts TCPA Breach ------------------------------------------------------ ERICA ZOZULA, individually and on behalf of all others similarly situated v. SURVEY SAMPLING INTERNATIONAL, LLC, and DOES 1 through 10, inclusive, and each of them, Case No. 3:18-cv-04667 (N.D. Cal., August 2, 2018), accuses the Defendants of negligently, knowingly and willfully contacting the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, specifically, the "automatic telephone dialing system" and "artificial or prerecorded voice" provisions. Survey Sampling International, LLC, is a data research company. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com SYNCHRONY FINANCIAL: Michael Kincaid's TCPA Suit Concluded ---------------------------------------------------------- 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 case Michael W. Kincaid, DDS et al. v. Synchrony Financial, has been dismissed. The Company was a defendant in a putative class action lawsuit alleging claims under the TCPA relating to facsimiles. In Michael W. Kincaid, DDS et al. v. Synchrony Financial, plaintiff alleged that the Company violated the TCPA by sending fax advertisements without consent and without required notices, and sought up to $1,500 for each violation. The amount of damages sought in the aggregate was unspecified. The original complaint was filed in U.S. District Court for the Northern District of Illinois on January 20, 2016. On August 11, 2016, the Court granted the Company's motion to dismiss based on the lack of personal jurisdiction. On August 15, 2016, the plaintiff re-filed the case in the Southern District of Ohio. On or about May 2, 2018, the case was dismissed with prejudice pursuant to an individual settlement between the Company and the representative plaintiff. 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. THORLO INC: Website Not Accessible to Blind, Marett Says -------------------------------------------------------- LUCIA MARETT, Individually and as the representative of a class of similarly situated persons, the Plaintiff, v. THORLO, INC. a/k/a Thorlo, the Defendants, Case No. 1:18-cv-07032 (S.D.N.Y., Aug. 6, 2018), alleges that Thorlo failed to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually impaired persons. According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his 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. Defendant is denying blind and visually-impaired persons throughout the United States with equal access to the goods and services Thorlo provides to their non-disabled customers through http//:www.Thorlo.com. Defendants' denial of full and equal access to its website, and therefore denial of its products and services offered, and in conjunction with its physical locations, is a violation of Plaintiff's rights under the Americans with Disabilities Act. Thorlo.com provides to the public a wide array of the goods, services, price specials, employment opportunities and other programs offered by Thorlo. Yet, Thorlo.com contains thousands of access barriers that make it difficult if not impossible for blind and visually-impaired customers to use the website.[BN] Attorneys for Plaintiff and the Class: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Telephone: (917) 373 9128 Facsimile: (718) 504 7555 TOLL GLOBAL: 9th Circuit Appeal Filed in Marquez Class Suit ----------------------------------------------------------- Plaintiff Carlos Marquez filed an appeal from a court ruling in the lawsuit entitled Carlos Marquez v. Toll Global Forwarding USA, Inc., et al., Case No. 2:18-cv-03054-ODW-AS, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter on August 13, 2018, Judge Otis D. Wright, II, denied the Plaintiff's Motion to Remand. Mr. Marquez brought the putative class action against the Defendants on February 13, 2018, in the Los Angeles Superior Court alleging seven causes of action: (1) Recovery of Unpaid Minimum Wage and Overtime; (2) Meal Period Violations; (3) Rest Period Violations; (4) Unpaid Wages During Employment; (5) Failure to Pay Wages Due at Separation of Employment; (6) Failure to Issue Accurate Itemized Wage Statements; and (7) Unfair Business Practices. The appellate case is captioned as Carlos Marquez v. Toll Global Forwarding USA, Inc., et al., Case No. 18-56060, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Carlos Marquez's opening brief is due on October 2, 2018; -- Appellees Does, Insperity PEO Services, L.P., TGF Management Group Holdco, Inc. and Toll Global Forwarding USA, Inc.'s answering brief is due on November 2, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant CARLOS MARQUEZ, an individual and on behalf of all others similarly situated, is represented by: Kevin Mahoney, Esq. MAHONEY LAW GROUP, APC 249 East Ocean Boulevard Long Beach, CA 90802 Telephone: (562) 590-5550 E-mail: kmahoney@mahoney-law.net Defendants-Appellees TOLL GLOBAL FORWARDING USA, INC., a corporation; TGF MANAGEMENT GROUP HOLDCO, INC., a corporation; and INSPERITY PEO SERVICES, L.P., Erroneously Sued As Insperity Expense Management, Inc., are represented by: William J. Dritsas, Esq. SEYFARTH SHAW LLP 560 Mission Street San Francisco, CA 94105 Telephone: (415) 397-2823 E-mail: wdritsas@seyfarth.com TRANSNATIONAL FOODS: Young Files Suit Asserting Deceptive Marketing ------------------------------------------------------------------- RENEE YOUNG, individually and on behalf of all others similarly situated v. TRANSNATIONAL FOODS, INC., a Florida corporation; and DOES 1 through 10, inclusive, Case No. 3:18-cv-04651-LB (N.D. Cal., August 2, 2018), seeks to enjoin the alleged ongoing deception of consumers by the Defendant, and to recover the money taken by this unlawful practice. The Defendant manufactures, markets, and sells olive oil labeled as "Pampa Extra Virgin Olive Oil" ("Pampa EVOO"). In reality, the Plaintiff alleges, extensive clinical testing conducted by a leading laboratory conclusively establishes that Pampa EVOO is not Extra Virgin Olive Oil. She contends that she and members of the proposed class relied on the Defendant's misrepresentations and would not have paid as much, if at all, for Pampa EVOO but for its misrepresentations. Transnational Foods, Inc., is a Florida corporation with its principal place of business located in Miami, Florida. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS, A PROFESSIONAL CORPORATION 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com TURN-KEY SOLUTIONS: Martinez Sues to Recover OT Pay Under FLSA -------------------------------------------------------------- Phil Martinez, individually and on behalf of all others similarly situated v. Turn-Key Solutions, Inc., An Arizona Corporation, Case No. 2:18-cv-02448-BSB (D. Ariz., August 2, 2018), seeks to recover overtime wages and liquidated damages pursuant to the Fair Labor Standards Act. Turn-Key Solutions, Inc., is a for-profit corporation whose corporate headquarters are located in Glendale, Arizona. Turn-Key is a privately-held company operating out of Phoenix and Glendale, Arizona. Turn-Key provides "customer interaction solutions" at its call centers.[BN] The Plaintiff is represented by: Nicholas J. Enoch, Esq. Kaitlyn Redfield-Ortiz, Esq. Stanley Lubin, Esq. LUBIN & ENOCH, P.C. 349 North Fourth Avenue Phoenix, AZ 85003-1505 Telephone: (602) 234-0008 Facsimile: (602) 626-3586 E-mail: nick@lubinandenoch.com kaitlyn@lubinandenoch.com stan@lubinandenoch.com - and - Austin W. Anderson, Esq. Clif Alexander, Esq. ANDERSON ALEXANDER, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: austin@a2xlaw.com clif@a2xlaw.com UBER TECHNOLOGIES: Ct. to Review Ruling on Lyft Drivers' UCL Claim ------------------------------------------------------------------ The United States District Court for the Northern District of California granted Defendant's Motion for Reconsideration of the Court's Order regarding the UCL claim in the case captioned MICHAEL GONZALES, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 17-cv-02264-JSC (N.D. Cal.). Plaintiff Michael Gonzales brings this action on his own behalf and as a putative class action for Lyft drivers whose electronic communications and whereabouts were allegedly intercepted, accessed, monitored, and/or transmitted by the Uber defendants. The Court granted Uber's motion to dismiss the First Amended Complaint on all causes of action except the California Unfair Competition Law (UCL) claim. The Court denied dismissal of the UCL claim on the grounds that the Plaintiff had sufficiently alleged UCL statutory standing. Uber argues the Plaintiff cannot seek restitution under the UCL because his claim is one for damages, not restitution. Uber contends that the Plaintiff has not pled that he had an interest in any money that Uber acquired and thus should be restored to the Plaintiff. The Court agrees. Uber's alleged use of the spyware was a lost profit opportunity for Lyft, and thus for the Plaintiff, but not a benefit that the Plaintiff had an ownership interest in. The Plaintiff only alleges that Uber's use of the spyware decreased the effectiveness of the Lyft app by decreasing the availability of Lyft drivers which in turn harmed the Plaintiff and the other class members. This allegation is one of classic money damages, not restitution. The Court finds that the Plaintiff has not alleged Uber falsely represented itself to and took money from the Plaintiff; instead, the Plaintiff alleges that Uber's unfair business practice decreased the effectiveness of the Lyft app which harmed the Plaintiff, presumably because the Plaintiff received fewer ride requests. Accordingly, Uber's motion for reconsideration is granted. A full-text copy of the District Court's June 21, 2018 Order is available at https://tinyurl.com/y733q6mg from Leagle.com. Michael Gonzales, individually and on behalf of all others similarly situated, Plaintiff, represented by Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, Ling Yue Kuang, Audet & Partners, LLP, Mark Etheredge Burton, Jr., Audet and Partners, LLP, Mark Etheredge Burton, Jr., Audet and Partners, LLP & Michael Andrew McShane, Audet & Partners LLP. Uber Technologies, Inc., a Delaware corporation, Defendant, represented by Patrick Leo Oot, Jr. -- oot@shb.com -- Shook, Hardy and Bacon, LLP, pro hac vice, Elizabeth Anne Lee -- elee@shb.com -- Shook, Hardy Bacon L.L.P., John K. Sherk, III - jsherk@shb.com -- Shook Hardy & Bacon LLP & Michael Kevin Underhill -- kunderhill@shb.com -- Shook Hardy & Bacon LLP. Uber USA, LLC, a Delaware limited liability company & Raiser-CA, a Delaware limited liability company, Defendants, represented by Patrick Leo Oot, Jr. , Shook, Hardy and Bacon, LLP, pro hac vice, John K. Sherk, III , Shook Hardy & Bacon LLP & Michael Kevin Underhill , Shook Hardy & Bacon LLP. UNITED STATES: Court Denies Final OK of Settlement in FAMs' Suit ---------------------------------------------------------------- The United States District Court for the Northern District of California denied the Joint Motion for Final Approval of a Collection Action Settlement in the case captioned K.H., et al., Plaintiffs, v. SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, Defendant, Case No. 15-cv-02740-JST (N.D.Cal.). The Plaintiffs are current and former Field Air Marshalls (FAMs) employed by the Defendant, the Secretary of the Department of Homeland Security. All are over forty years of age. The Plaintiffs allege that the TSA targeted the six Field Offices for closure in an attempt to drive out older FAMs so that it could in turn 'hire two young FAMs for every older FAM. The Plaintiffs claim that the actual process in which TSA designated the Field Offices for closure was based on age discrimination and designed to rid older FAMs from its workforce. The settlement agreement resolves a bona fide dispute concerning liability under the ADEA. Fair and Reasonable Settlement Agreement To determine whether a settlement is fair and reasonable, district courts implicitly or explicitly consider the factors that are used to evaluate Rule 23 class action settlements, which include: the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Scope of the Release Provision Here, the Plaintiffs agree to release Defendant from any and all obligations, damages, liabilities, actions, causes of actions, claims and demands of any kind and nature whatsoever, including claims arising under the Age Discrimination in Employment Act, 29 U.S.C. Section 633a, whether suspected or unsuspected, at law or in equity, known or unknown, or omitted prior to the date he executes this Agreement, which arise from or relate to each Plaintiff's employment with the Defendant and/or the Federal Air Marshal Service. Courts in this district have rejected similarly broad provisions in other FLSA actions. Similarly, the Court concludes that the scope of the release in this action which goes far beyond the ADEA claims at issue is improper. The broad scope of the release provision precludes settlement approval. Plaintiff's Range of Recovery Under the agreement, all class members who have separated from the Service will be paid a total sum of $1,500, and class members who remain employed with the Service will receive seven additional days of leave. The Court cannot determine whether the settlement amount is fair or reasonable, however, until the parties provide an estimate of the Plaintiffs' range of recovery if they were to prevail on their FLSA claims. In the analogous class action settlement context, the Court has more than once denied motions for approval where the plaintiffs provided no information about the maximum amount that the putative class members could have recovered if they ultimately prevailed on the merits of their claims. The Court has acknowledged that a cash settlement amounting to only a fraction of the potential recovery does not per se render the settlement inadequate or unfair. Nonetheless, the Court has also explained that any fraction has a denominator, and without knowing what it is the Court cannot balance plaintiffs' expected recovery against the proposed settlement amount. Here, the Plaintiffs have not even attempted to provide hypothetical scenarios, that could produce various expected recoverable damages to measure against the proposed settlement amount. Given the lack of information in the Plaintiffs' motion, the Court cannot determine whether the amount offered in settlement is adequate. Attorney's Fees An attorney is also entitled to recover as part of the award of attorneys' fees those out-of-pocket expenses that would normally be charged to a fee paying client. To support an expense award, plaintiffs should file an itemized list of their expenses by category and the total amount advanced for each category to permit a court to assess whether the expenses are reasonable. Here, the Plaintiffs do not seek direct reimbursement of their costs, but they do justify their attorneys' fees request in part on the ground that counsel for plaintiffs advanced in excess of $60,000.00 in litigation costs and expenses during the pendency of the matter. Accordingly, they must submit a list of their expenses, supported by receipts. The parties' motion for approval of their collective class action settlement agreement is denied without prejudice. A full-text copy of the District Court's July 26, 2018 Order is available at https://tinyurl.com/y7rfb4gr from Leagle.com. K.H., Gary McConaghy, Richard DeVivo, Donna Baxter, Brian Pierog, Jeffrey Boyer, J. M., W. L. & C. V., on behalf of themselves and those similarly situated, Plaintiffs, represented by Nicholas Michael Wieczorek, Clark Hill PLLC, Ernest B. Orsatti, Rothman Gordon, P.C., pro hac vice, Jeremy J. Thompson -- jthompson@clarkhill.com -- Clark Hill PLLC & William Francis Ward, Rothman Gordon, PC, pro hac vice. Secretary of the Department of Homeland Security, Defendant, represented by Wendy M. Garbers, United States Attorney's Office & David Alejandro Pereda, United States Attorney's Office Civil Division. UNITED STATES: Federal Circuit Appeal Filed in Charleston Suit -------------------------------------------------------------- Plaintiffs Charleston Area Medical Center, Inc., and CAMC Health Education And Research Institute, Inc., filed an appeal from a court ruling in their lawsuit entitled Charleston Area Medical Ctr., et al. v. US, Case No. 1:17-cv-01528-EDK, in the United States Court of Federal Claim. The nature of suit is stated as Tax - Allowance of Interest. As previously reported in the Class Action Reporter, the lawsuit was filed on October 16, 2017. The appellate case is captioned as Charleston Area Medical Ctr., et al. v. US, Case No. 18-2226, in the U.S. Court of Appeals for the Federal Circuit. The briefing schedule in the Appellate Case is set as follows: -- Entry of Appearance is due on August 23, 2018; -- Certificate of Interest is due on August 23, 2018; -- Docketing Statement is due on September 10, 2018; and -- Appellant/Petitioner's brief is due on October 9, 2018.[BN] Plaintiffs-Appellants CHARLESTON AREA MEDICAL CENTER, INC., and CAMC HEALTH EDUCATION AND RESEARCH INSTITUTE, INC., on behalf of themselves and all other taxpayers similarly situated, are represented by: Thomas D. Sykes, Esq. LAW OFFICES OF THOMAS D. SYKES, LLC 825 S Waukegan Road Lake Forest, IL 60045 Telephone: (847) 604-4928 Facsimile: (847) 604-4961 E-mail: tomsykes@sykestaxlaw.com Defendant-Appellee UNITED STATES is represented by: Miranda Bureau, Esq. DEPARTMENT OF JUSTICE PO Box 26 Ben Franklin Station Washington, DC 20044 Telephone: (202) 353-9171 E-mail: miranda.j.bureau@usdoj.gov VAN RU CREDIT: Norton Files Placeholder Class Certification Bid --------------------------------------------------------------- In the lawsuit styled TROY NORTON, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. VAN RU CREDIT CORPORATION, the Defendant, Case No. 2:18-cv-01224-PP (E.D. Wisc.), the Plaintiff asks the Court for an order certifying classes, appointing Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017). Attorneys for Plaintiff: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. Ademi & O'Reilly, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com VEECO INSTRUMENTS: Iron Workers Fund Files Securities Suit in Ca. ----------------------------------------------------------------- IRON WORKERS DISTRICT COUNCIL OF NEW ENGLAND PENSION FUND, Individually and on Behalf of All Others Similarly Situated v. VEECO INSTRUMENTS, INC., et al., Case No. 18CV332463 (Cal. Super. Ct., Santa Clara Cty., August 2, 2018), is a securities class action brought on behalf of all persons, who acquired Veeco common stock pursuant or traceable to the S-4 registration statement and prospectus issued in connection with the May 2017 merger of Veeco and Ultratech. The Plaintiff asserts that the Registration Statement contained untrue statements of material fact and omitted material facts both required by governing regulations and necessary to make the statements made not misleading. The Plaintiff alleges that the Defendants failed to disclose, among other things, that Veeco was already experiencing increased competition, loss of market share, price pressure, and reduced margins in its critical Chinese markets. Veeco is incorporated under the laws of Delaware and conducts substantial business through its wholly owned subsidiary, Ultratech, which is headquartered in San Jose, California. The Individual Defendants are directors and officers of Veeco. Veeco designs and manufactures thin film equipment for a wide variety of electronic devices, including smartphones, hard disk drives, and semiconductors.[BN] The Plaintiff is represented by: David W. Hall, Esq. HEDIN HALL LLP Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Telephone: (415) 766—3534 Facsimile: (415) 402—0058 E-mail: dhall@hedinhall.com - and - Guillaume Buell, Esq. THORNTON LAW FIRM LLP 300 Summer Street, 30th Floor Boston, MA 02110 Telephone: (617) 720-1333 Facsimile: (617) 720-2445 E-mail: gbuell@tenlaw.com WAL-MART STORES: Move to Deny Managers Class Certification Junked ----------------------------------------------------------------- The United States District Court for the Middle District of Tennessee, Nashville Division, dismissed Defendant's Motion to Deny Class Certification in the case captioned CHERYL PHIPPS, and SHAWN GIBBONS, Plaintiffs, v. WAL-MART STORES, INC., Defendant, Case No. 12-01009 (M.D. Tenn.). In their complaint, the plaintiffs made class allegations, proposing to certify a class that included past and future female Wal-Mart retail store employees other than store managers and pharmacists in Wal-Mart's Region 43. Here, not only did the plaintiffs seek to certify a class different from the class in Wal-Mart's motion, but also the plaintiffs indicated in their second supplemental brief that they have no objection to filing an amended complaint which excludes reference to the class claims. In its motion to deny class certification, Wal-Mart has not presented an issue that ought to be decided by this Court, especially now that the plaintiffs have withdrawn all their class claims. Accordingly, the motion to deny class certification is dismissed. A full-text copy of the District Court's June 21, 2018 Order is available at https://tinyurl.com/y8pbsv93 from Leagle.com. Cheryl Phipps & Shawn Gibbons, On Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by Brian C. Corman -- bcorman@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll PLLC, Christine Webber, Cohen, Milstein, Sellers & Toll PLLC, David W. Garrison -- dgarrison@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC, Jocelyn D. Larkin, Impact Fund, Joseph M. Sellers -- jsellers@cohenmilstein.com -- Cohen, Milstein, Sellers & Toll, PLLC, Joshua A. Frank -- jfrank@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC, Scott P. Tift -- stift@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC & Seth Marcus Hyatt -- shyatt@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC. Wal-Mart Stores, Inc., Defendant, represented by Amanda Machin -- amachin@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Catherine Conway -- cconway@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Dustin G. May -- dmay@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, J. Graham Matherne -- gmatherne@wyattfirm.com -- Wyatt, Tarrant & Combs, Mark A. Perry -- mperry@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Michele L. Maryott -- mmaryott@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Olivia Adendorff -- oadendorff@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Gibson Dunn & Crutcher LLP & Zoe A. Klein -- zklein@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP. WECONNECT INC: 7th Cir. Affirms Arbitration Denial in Worker's Suit ------------------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, affirmed the District Court's judgment denying Defendant's Motion to Compel Arbitration in the case captioned BROOKS GOPLIN, Plaintiff-Appellee, v. WECONNECT, INCORPORATED, Defendant-Appellant, No. 18-1193 (7th Cir.). WeConnect, Inc., asks this Court to reverse the district court for making a factual mistake. Brooks Goplin worked for WeConnect, Inc. When he began his employment, he signed an arbitration agreement called the AEI Alternative Entertainment Inc. Open Door Policy and Arbitration Program. The agreement referred to an entity named AEI throughout; it never mentioned We-Connect. The district court held that WeConnect failed to meet its burden of demonstrating that it was a party to the arbitration agreement or otherwise entitled to enforce it. It discounted the affidavit from the Director of Human Resources as conclusory and noted that WeConnect's own website indicates that AEI ceased to exist in September 2016, when it merged with WeConnect Enterprise Solutions to form We-Connect, Inc. Because the court found that AEI isn't just another name for WeConnect, it denied WeConnect's motion to compel arbitration. WeConnect filed a motion for reconsideration. The district court denied the motion. WeConnect's primary complaint is that the district court should not have taken its website into account in ruling on the Rule 12(b)(3) motion. According to WeConnect, the district court violated the rules of judicial notice by relying on information it found in the course of its own internet research. WeConnect is incorrect. The website was not the determinative factor in the district court's decision. WeConnect bore the burden of establishing its right to enforce the arbitration agreement. It contended that it could enforce a contract entered by AEI, but the only evidence it introduced of its relationship to AEI was one sentence in an affidavit from its Director of Human Resources. Contrary to WeConnect's assertion, the district court did not engage in its own internet research to find the website; Goplin cited WeConnect's website in his briefing. WeConnect protests that it did not have the opportunity to put its website language in context for the court. But it could have done so in its reply brief; it simply failed to use that opportunity. Had WeConnect introduced the strongest evidence of its relationship with AEI from the get-go, it may well have convinced the district court that the two names referred to the same entity. But WeConnect miscalculated and relied on a conclusory sentence in a human resources affidavit to establish the corporate relationship between WeConnect and AEI. Based on the evidence it had before it, the district court's finding was not clearly erroneous. Accordingly, the decision of the district court is affirmed and the case is remanded for further proceedings. A full-text copy of the Seventh Circuit's June 21, 2018 Opinion is available at https://tinyurl.com/y9xexj27 from Leagle.com. Ross William Townsend, for Defendant-Appellant. David C. Zoeller, for Plaintiff-Appellee. Caitlin M. Madden, for Plaintiff-Appellee. WELSPUN PIPES: Vines and Lewis Seek Overtime Pay under FLSA ----------------------------------------------------------- ANTHONY VINES and DOMINIQUE LEWIS, Each Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. WELSPUN PIPES, INC.; WELSPUN TUBULAR LLC; and WELSPUN USA, the Defendants, Case No. 4:18-cv-00509-SWW (E.D. Ark., Aug. 7, 2018), seeks declaratory judgment, monetary damages, liquidated damages prejudgment interest, and costs, including reasonable attorneys' fees, as a result of Defendants' failure to pay Plaintiffs and other hourly-paid employees lawful overtime compensation for hours worked in excess of 40 hours per week, under the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. Defendant operates multiple manufacturing facilities worldwide, including a facility in Arkansas, and has one corporate headquarters that centralizes all pay, time and human resource policies so that they are the same across its facilities.[BN] The Plaintiff is represented by: Daniel Ford, Esq. Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: daniel@sanfordlawfirm.com chris@sanfordlawfirm.com josh@sanfordlawfirm.com WOMEN'S NATIONAL: Faces Bishop Suit in Southern Dist. of New York ----------------------------------------------------------------- A class action lawsuit has been filed against Women's National Republican Club, Inc. The case is captioned as Cedric Bishop, on behalf of himself and all others similarly situated, the Plaintiff, v. Women's National Republican Club, Inc., doing business as: 3 West Club, the Defendant, Case No. 1:18-cv-07069 (S.D.N.Y., Aug. 6, 2018). The Women's National Republican Club is the oldest private club for Republican women in the United States, and was founded by Henrietta Wells Livermore in 1921.[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 ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***