/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180827.mbx C L A S S A C T I O N R E P O R T E R Monday, August 27, 2018, Vol. 20, No. 171 Headlines 22ND DISTRICT: Cal. App. Affirms Demurrer Ruling in FLSA Suit A CANAAN SUSHI: Fails to Pay OT to Deliveryman, Gao Suit Says ARIZONA: 9th Cir. Affirms Summary Judgment in J. Torres's Suit BANKRUPTCY MANAGEMENT: Court Dismisses Antitrust Suit BEST BUY COMPANY: Removes Eldredge Suit to W.D. Washington BOB ROBISON COMMERCIAL: Fails to Pay OT to Helper, Martinez Says BODY SCULPT: Court Grants Arbitration in A. Thompson's FLSA Suit BRF SA: Birminghan Named Lead Plaintiff in Securities Suit CAL WEST: $185K Class Settlement Has Prelim Court Approval CBOE EXCHANGE: Cassandra Trading Sues over VIX Price Manipulation COMMERCIAL TRADE: Schnorrbusch Alleges Wrongful Debt Collections CONTINENTAL RESOURCES: To Complete "Strack" Settlement in 2019 COUNTY OF INYO, CA: More Info Needed in "Wagner" Settlement CSK AUTO: Court OKs $395K Class Settlement in "Melgar" CSX TRANSPORTATION: Darrel Andrews Sues over Mass Layoff DANELL CUSTOM: $1.5MM Settlement in FLSA Suit Has Final Approval DAVITA INC: Delaware Court Stays Securities Fraud Suit DEFENDERS INC: 3rd Cir. Affirms Remand of TCCWNA Suit DENTSPLY SIRONA: Futuredontics Still Defends Olivares Class Suit DIPLOMAT PHARMACY: Bid to Reconsider Michigan Court Order Pending DR PEPPER SNAPPLE: Underpays Sales Specialist, Aly et al. Claim DYNAVAX TECHNOLOGIES: Plaintiff Appeals from Nixed Securities Suit EATON CORP: SC Retirement Appeals Decision in Steamfitters Suit EHEALTH INC: Settlement of Calif. Suits Still Subject to Final OK ENVISION HEALTHCARE: Bid to Drop Securities Class Suit Pending ENVISION HEALTHCARE: Faces Shareholder Suits over Merger Agreement ETSY INC: Consolidated Cervantes & Weiss Actions Still Pending FALL RIVER: Settlement in A. Pintor FLSA Suit Has Prelim Approval FAMMA GROUP: Fails to Pay Proper Wages, Benavides Suit Claims FEDERAL SIGNAL: Firefighters' Hearing Loss Lawsuits Still Ongoing FINANCIAL CREDIT: Solis Sues over Debt Collection Practices FLOWERS FOODS: Court Won't Review Dismissal of M. Abugeith's Suit G.O.O.D. BUSINESS: Lambert Sues over Edipure Product Mislabeling GENERAL MOTORS: Doucet Sues over Defective 2011 Chevrolet Equinox GEO GROUP: Seeks 9th Circuit Review of Ruling in Chen Suit GLASS FAMILY: Fails to Pay OT to Delivery Drivers, Begley Claims GLOBAL TELLINK: Seeks 3rd Cir. Review of Ruling in James Suit GLV INC: Loses Bid to Dismiss L. Mullen's IPFSA Suit GURSTEL LAW: Borges Sues over Debt Collection Practices HUNTINGTON BANCSHARES: Protective Order in Majestic Partly OK'd INDEPENDENT PHARMACY: Nashville Pharmacy Sues over Faxed Ads J&L CABLE TV: Fails to Pay OT to Technicians, Jean-Pierre Claims JOHNSON & JOHNSON: Faces Bard Suit over Sale of Talcum Products JONATHAN NEIL: Court Extends Settlement Notice Filing Date LBT ACQUISITION: Court Narrows Claims in Securities Fraud Suit LL BEAN: Court OKs Dismissal of V. Bondi's MMWA Suit LUBRICATING SPECIALTIES: Fails to Pay Proper Wages, Landeros Says MACY'S RETAIL: Filing of 2nd Amended "Orellana" Suit Partly OK'd MARRIOTT INTERNATIONAL: Swartz Sues over Violation of ADA MASSACHUSETTS: Governor Faces McMann Suit in D. Massachusetts MDL 2047: Court Grants WWIC's Bid to Dismiss MDL 2262: Court Won't Reconsider GDB Fraud Claims Dismissal MENTOR GRAPHICS: WPEE Pension Fund Appeals Order to Ninth Circuit MICHIGAN: Court Dismisses D. Lamar's Inmates Civil Rights Suit MINNESSOTA: Certification Bid in G. Greene's Inmate Suit Denied MONDELEZ INT'L: Suit Over Ginger Snaps PHO Remain in Dist. Court MSG HOLDINGS: Conditional Certification of Intern Class Denied MUTUAL OF OMAHA: Can Compel Subpoena Compliance in "Johansen" Suit NCAA: 7th Cir. Affirms Dismissal of Residence Rule Suit NESTLE WATERS: Court Narrows Claims in A. Geis' Suit NEW PENN FINANCIAL: Chong Sues over Force-Placed Insurance PEPSI-COLA SALES: Ct. Needs Supplemental Brief in S. Helton's Suit PHILLIPS 66 COMPANY: Underpays Production Workers, Suit Claims ROSEMONT REALTY: South Point Wins Summary Ruling in ADEA Suit SCAN HEALTH PLAN: Fails to Pay Proper OT, Greenwood Suit Says SECURITY LIFE: Advance Trust Sues over Excessive Cost of Insurance SECURITY PROS: Underpays Security Guards, Morrison Suit Claims SIMM ASSOCIATES: Court Stays J. Brotz's Suit Pending Mediation SPRINT CORP: Underpays Operations Specialists, Oliphant Says SSF IMPORTED: Fails to Pay Proper Wages, Lopez Suit Alleges SUKAR AND SONS: Fails to Pay Proper Wages, Ramirez Suit Alleges SUNTEC CONCRETE: Fails to Pay Overtime Wages, Enriquez Suit Says T-MOBILE USA: Jan. 17 Hearing on Class Certification Motion TAMKO BUILDING: Loses Bid to Dismiss J. Snyder's Suit TEXAS GUARANTEED: Berumen Alleges Wrongful Debt Collections TOLL GLOBAL: Court Dismisses C. Marquez's Wage & Hour Suit TRAVELERS PROPERTY: Removes Anheuser Busch Suit to E.D. Missouri UBER TECHNOLOGIES: Has Made Unsolicited Calls, Bollinger Alleges UNITED AIRLINES: Fails to Provide Meal & Rest Period, Medina Says US ENVIRONMENTAL: Court Narrows Claims in B. Formica's FLSA Suit WELLS FARGO: Allen Appeals Order and Judgment to 8th Cir. WELLS FARGO: Court OKs Amendments to V. Fowler's Complaint ********* 22ND DISTRICT: Cal. App. Affirms Demurrer Ruling in FLSA Suit ------------------------------------------------------------- In the case, JOSE LUIS MORALES et al., Plaintiffs and Appellants, v. 22nd DISTRICT AGRICULTURAL ASSOCIATION, Defendant and Respondent, Case No. D072378 (Cal. App.), Judge Cynthia Aaron of the Court of Appeals of California for the Fourth District, Division One, affirmed the trial court's order sustaining the DAA's demurrer without leave to amend. Defendant DAA is a California agency that owns and manages the Del Mar Fairgrounds and the Del Mar Horsepark. Plaintiff Morales and a group of other seasonal employees of the DAA filed a putative class action alleging that the DAA failed to pay them overtime compensation required by state law under Labor Code section 5103 and federal law under the Fair Labor Standards Act of 1938 ("FLSA"). The trial court sustained, without leave to amend, the DAA's demurrer to the Plaintiffs' section 510 cause of action. After the trial court conditionally certified the case as a collective action, the DAA asserted an affirmative defense to the Plaintiffs' FLSA claim. Specifically, the DAA alleged that the employees were exempt from the FLSA overtime compensation requirements pursuant to a statutory exemption commonly referred to as the "amusement exemption. The trial court held a jury trial on the DAA's affirmative defense to the Plaintiffs' FLSA claim. The jury rendered a verdict in favor of the DAA and the trial court entered a judgment in favor of the DAA. The Plaintiffs timely appealed. The primary issues on appeal in Morales related to the Plaintiffs' claim under the FLSA. The Morales court concluded that the trial court properly granted judgment for the DAA on the FLSA claim. The present appeal presents no issues with respect to that claim. The Morales court also rejected the Plaintiffs' contention that the trial court erred in sustaining the DAA's demurrer to the Plaintiffs' section 510 claim. After reviewing relevant case law, statutory law, and administrative regulations, the Appellate Court concluded that when section 510 and Wage Order No. 10-2001 are viewed together, the inescapable conclusion is that public employees in the amusement and recreation industry are exempt from state overtime requirements. The Appellate Court concluded that the Plaintiffs should be granted leave to amend their complaint, concluding that the Plaintiffs should be permitted to amend their section 510 claim since they have shown how they can potentially amend their complaint to state a valid claim under the joint employee doctrine. Accordingly, it reversed that part of the order sustaining the demurrer without leave to amend and direct the trial court to grant the Plaintiffs leave to amend the complaint. In so doing, it expressed no view as to the ultimate merits of the Plaintiffs' section 510 claim. It remanded the matter to the trial court with directions to grant the Plaintiffs leave to amend their complaint. On remand, the Plaintiffs filed a second amended complaint as a putative class action for the recovery of unpaid overtime compensation. In their second amended complaint, they alleged that they had worked as joint employees of the DAA and certain Outside Promoters. They further alleged that the DAA had failed to pay them overtime compensation required by section 510, subdivision (a). Based on their allegations, the Plaintiffs brought a single cause of action for recovery of overtime compensation, attorney fees, and costs pursuant to section 510, subdivision (a) and section 1194, subdivision (a)6 on behalf of themselves and a putative class of 119 day employees. The DAA filed a demurrer to the second amended complaint. In its demurrer, the DAA argued that in Morales, the Appellate concluded that it was exempt from paying overtime compensation as specified in section 510, subdivision (a). It further argued that it was not liable to the Plaintiffs for overtime compensation under section 510, subdivision (a) by virtue of its alleged status as the Plaintiffs' joint employer. The DAA argued that Noe v. Superior Court (2015) 237 Cal.App.4th 316, 333-334 (Noe) confirms that the joint employer doctrine does not extend California's overtime laws to a joint employer who is otherwise exempt from that law. The Plaintiffs filed an opposition in which they argued that the second amended complaint stated a cause of action for overtime violations under section 1194, subdivision (a), which, as the Noe court recognized, imposes a duty on every employer (i.e., including all co-employers), to ensure that that employees receive overtime compensation mandated by section 510, subdivision (a). They further argued that the Morales decision precludes the DAA's current argument, because Morales held that the Plaintiffs' then-proposed amendment would state a claim if joint employment were to be properly pleaded. Finally, the Plaintiffs argued that if the trial court were to conclude that Noe cannot be harmonized with Morales, it would be required to follow Morales under the law-of-the case doctrine. After further briefing and a hearing, the trial court sustained the DAA's demurrer without leave to amend. It thereafter entered a judgment in favor of the DAA. The Plaintiffs timely appealed from the judgment. They contend that the trial court erred in concluding that the second amended complaint did not adequately state a claim against the DAA for overtime compensation pursuant to sections 510, subdivision (a) and 1194, subdivision (a). Judge Aaron concludes that the DAA may not be liable for overtime compensation mandated by section 510, subdivision (a) when the DAA acts as a joint employer with another entity. Accordingly, she rejects the Plaintiffs' claim that they properly stated a section 1194, subdivision (a) claim for section 510, subdivision (a) overtime compensation against the DAA pursuant to a joint employment theory of liability. The Judge also concludes that the law-of-the-case doctrine does not require that we reverse the trial court's order sustaining the demurrer. She finds that the Morales court did not hold that the Plaintiffs yet-to-be pleaded joint employment theory adequately stated a cause of action against the DAA. Even if she were to agree with them that the Morales court did hold that exempt public employees could sue their public employer for overtime compensation to the extent the public employer jointly employed such employees with a private employer, the law-of-the-case doctrine would not require that the Court adhere to this erroneous conclusion. Finally, the Judge concludes that the Plaintiffs have failed to demonstrate how they have sufficiently stated a claim under section 1194, subdivision (a) for overtime compensation due under section 510, subdivision (a) based on the theory that the DAA was not the plaintiffs' direct employer. The Plaintiffs have not provided any authority as to the meaning of the term "directly employed" in Wage Order No. 10. They have failed to explain how such factual allegations sufficiently state a claim based on the theory that the DAA is not their direct employer. Moreover, the Plaintiffs point to no other allegations in their second amended complaint demonstrating that they are not directly employed by the DAA. For these reasons, Judge Aaron affirmed the trail court's judgment. In the interests of justice, each party is to bear its own costs on appeal. A full-text copy of the Court's July 10, 2018 Order is available at https://is.gd/WiYJLq from Leagle.com. Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Appellants. Gordon & Rees, James J. McMullen, Jr. -- jmcmullen@grsm.com -- Matthew G. Kleiner -- mkleiner@grsm.com -- and Justin M. Michitsch -- jmichitsch@grsm.com -- for Defendant and Respondent. League of California Cities and California State Association of Counties, as Amicus Curiae on behalf of Defendant and Respondent. A CANAAN SUSHI: Fails to Pay OT to Deliveryman, Gao Suit Says ------------------------------------------------------------- SHIQIANG GAO, individually and on behalf of all others similarly situated, Plaintiff v. A CANAAN SUSHI INC. d/b/a CANAAN SUSHI; JIA ZHUANG WANG, and JANE WANG, Defendants, Case No. 1:18-cv-06442 (S.D.N.Y., July 17, 2018) seeks to recover from the Defendants unpaid minimum wages, unpaid overtime wages, liquidated damages, unreimbursed out-of-pocket vehicle costs, prejudgment interests, and attorneys' fees and cost. The Plaintiff Gao was employed by the Defendants as deliveryman from February 15, 2016 to August 15, 2016. A Canaan Sushi Inc. d/b/a Canaan Sushi is a corporation organized under the laws of the State of New York. The Company is engaged in the restaurant business. [BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 ARIZONA: 9th Cir. Affirms Summary Judgment in J. Torres's Suit -------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's judgment granting Defendant's Motion for Summary Judgment in the case captioned JAVIER TORRES; LIA RIVADENEYRA, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. TERRY GODDARD, in his individual capacity; CAMERON H. HOLMES, AKA Kip Holmes, in his individual capacity; THOMAS C. HORNE, Attorney General, Attorney General of the State of Arizona, Defendants-Appellees, No. 16-16315 (9th Cir.) On remand, the court again denied class certification, and granted the defendants' motion for summary judgment, holding that qualified immunity protected the defendants against these claims. Named plaintiffs Javier Torres and Lia Rivadeneyra brought this putative class action under 42 U.S.C. Section 1983 against the Attorney General and Assistant Attorney General of the State of Arizona. They allege that two warrants issued by the Maricopa County Superior Court against plaintiffs' money orders with Western Union Financial Services (Western Union) violated their Fourth and Fourteenth Amendment rights. Torres and Rivadeneyra first argue that defendants are not entitled to qualified immunity for the execution and service of the warrants, because the warrants were insufficiently particularized. They argue that the Attorney General's use and issuance of criteria-based warrants violates the requirement of particularized probable cause and the prohibition on using profile evidence as probable cause and that both propositions were clearly established. Even assuming plaintiffs' Fourth Amendment rights were violated, such a violation was not clearly established at the time. This second prong of the qualified immunity analysis requires the Court to examine the contours of the plaintiffs' Fourth Amendment rights to determine whether those particular rights were clearly established and ask whether a reasonable official would have known that what he was doing violated that right. The Plaintiffs carry the burden of showing that the law was clearly established at the time of the alleged violation and the Court defines clearly established law not at a high level of generality, but with a fair degree of granularity. The Court agree with the district court's analysis, and the Court finds that the cases cited by plaintiffs would not have provided defendants with notice in 2006 that their conduct constituted an unconstitutional seizure in violation of plaintiffs' Fourth Amendment rights. A full-text copy of the Ninth Circuit's June 25, 2018 Memorandum is available at https://tinyurl.com/ydcf68o5 from Leagle.com. BANKRUPTCY MANAGEMENT: Court Dismisses Antitrust Suit ----------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion to Dismiss the case captioned McGARRY & McGARRY LLP, Plaintiff, v. BANKRUPTCY MANAGEMENT SOLUTIONS, INC., Defendant, Case No. 17 CV 5779 (N.D Ill.). McGarry filed in Illinois state court a single count against BMS alleging the same horizontal conspiracy to fix the manner of charging fees for its bankruptcy software services in violation of the Illinois Antitrust Act, 740 ILCS 10/3 (count I), which BMS promptly removed to this court. In the first action, the court granted BMS's motion to dismiss because McGarry was not the appropriate party to bring a claim under federal antitrust law. BMS moves to dismiss McGarry's single count of violation of the Illinois Antitrust Act (IAA) on the same grounds. To bring an antitrust suit, a plaintiff must show two things: they must have standing to bring an antitrust suit, and they must allege that they have sustained antitrust injury. McGarry points out that a bankruptcy estate is different from a company in that the former does not exist to generate a profit. Therefore, the relationship between the Integrated Estate and McGarry more closely resembles a principal/agent relationship, where the principal has standing to sue despite the general derivative standing rule. The court struggles to understand McGarry's argument and does not see how the Integrated Estate would be McGarry's agent, as it would seemingly follow that a bankruptcy estate would be the agent of each of its individual creditors. If anyone is the agent of the bankruptcy estate, it is the trustee. As the court has pointed out, because a trustee in bankruptcy owes a fiduciary duty to an estate's creditors, the trustee could pursue the debtor's claim against the defendant on behalf of all the debtor's creditors equally, without preference for any particular creditor. That injury is much more efficiently measured on behalf of the debtor, moreover, rather than in fortuitous segments claimed by those creditors who happen to sue. A full-text copy of the District Court's July 2, 2018Order is available at https://tinyurl.com/yan7h6lv from Leagle.com. McGarry & McGarry, LLC, Plaintiff, represented by Marianne C. Holzhall -- mch@mcgarryllc.com -- McGarry & McGarry, LLC & William Dunnegan -- wd@dunnegan.com -- Dunnegan & Scileppi LLC, pro hac vice. Bankruptcy Management Solutions, Inc., Defendant, represented by Jonathan M. Herman -- herman.jonathan@dorsey.com -- Dorsey & Whitney, Kaleb McNeely -- mcneely.kaleb@dorsey.com -- Dorsey & Whitney LLP, pro hac vice, Michael Anthony Lindsay -- lindsay.michael@dorsey.com -- Dorsey & Whitney LLP, pro hac vice & Michael Irving Leonard -- mleonard@leonardmeyerllp.com -- LeonardMeyer LLP. BEST BUY COMPANY: Removes Eldredge Suit to W.D. Washington ---------------------------------------------------------- The Defendant in the case of Sharon Eldredge, individually and on behalf of all others similarly situated, Plaintiff v. Best Buy Company, Inc., Defendant, filed a notice to remove the lawsuit from the Superior Court of the State of Washington, County of King, (Case No. 18-00002-15074-4-KNT) to the U.S. District Court for the Western District of Washington on July 25, 2018, and assigned Case No. 2:18-cv-01093-RSM (W.D. Wash., July 25, 2018). The case is assigned to Judge Ricardo S. Martinez. Best Buy Co., Inc. operates as a retailer of technology products, services, and solutions in the United States, Canada, and Mexico. The company was formerly known as Sound of Music, Inc. Best Buy Co., Inc. was founded in 1966 and is headquartered in Richfield, Minnesota. [BN] The Plaintiff is represented by: Blythe H Chandler, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 E-mail: bchandler@terrellmarshall.com - and – Toby James Marshall, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: tmarshall@terrellmarshall.com The Defendant is represented by: Fred B Burnside, Esq. Nathan W. Rouse, Esq. DAVIS WRIGHT TREMAINE (SEA) 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: (206) 622-3150 Facsimile: (206) 757-7700 E-mail: fredburnside@dwt.com nathanrouse@dwt.com BOB ROBISON COMMERCIAL: Fails to Pay OT to Helper, Martinez Says ---------------------------------------------------------------- ALBERT MARTINEZ, individually and on behalf of all others similarly situated, Plaintiff v. BOB ROBISON COMMERCIAL FLOORING, INC., Defendant, Case No. 3:18-cv-00136-DPM (E.D. Ark., July 26, 2018) is an action against the Defendant for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, attorneys' fees and costs, as a result of the Defendant's failure to pay the Plaintiff lawful overtime compensation for hours worked in excess of 40 hours per week. Mr. Martinez was employed by the Defendant as helper for its commercial flooring company from February 2017 to June 2018. Bob Robison Commercial Flooring specializes in floor laying, refinishing, and resurfacing. The Company offers several options for its clients such as carpets, and rugs.[BN] The Plaintiff is represented by: Christopher 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: chris@sanfordlawfirm.com josh@sanfordlawfirm.com BODY SCULPT: Court Grants Arbitration in A. Thompson's FLSA Suit ---------------------------------------------------------------- The United States District Court for the Eastern District of New York granted Defendant's Motion for Arbitration in the case captioned ARIA CAROLINA THOMPSON; and KIMBERLY CAPUANO, individually and on behalf of others similarly situated, Plaintiffs, v. BODY SCULPT INTERNATIONAL, LLC (d/b/a SONO BELLO); TRINET HR CORP.; TRINET HR III, INC.; AESTHETIC PHYSICIANS, P.C. (d/b/a SONO BELLO); MICHAEL J. GARRISON; and JOHN/JANE DOES #1-18, Defendants, No. 18-cv-1001-ARR-GRB (E.D.N.Y). The Defendants request that the Court stays the proceedings in this court and compel plaintiffs to attend arbitration. Plaintiffs Maria Thompson and Kimberly Capuano bring this putative collective action against defendants. Plaintiffs allege that defendants violated the Fair Labor Standards Act (FLSA), by failing to pay them overtime. The Federal Arbitration Act (FAA) makes arbitration agreements valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Because the TriNet Agreement is valid and enforceable, Capuano must arbitrate any and all of her FLSA claims in bilateral arbitration with defendants. And because the Body Sculpt Agreement is valid and enforceable, Thompson must also arbitrate any and all of her FLSA claims in bilateral arbitration with defendants. Capuano entered into both the Hand-Signed Agreement and the TriNet Agreement, and Thompson entered into the Hand-Signed Agreement, the TriNet Agreement, and the Body Sculpt Agreement. The Plaintiffs argue that defendants have not shown that they entered into the TriNet Agreement or the Body Sculpt Agreement. But each in fact admits that she assented to both contracts. Specifically, they swear that they were forced to sign the agreements in order to keep their jobs. But whether they were pressured into assenting to the agreements goes to whether the contracts were procedurally unconscionable, not whether they entered into the contract in the first place. Even viewing the facts in the light most favorable to plaintiffs, therefore, they assented to the agreements at issue. THe Plaintiffs argue that the Hand-Signed Agreement is the only agreement at issue, because it contains a clause that provides that it can only be revoked or modified by a writing signed by the parties which specifically states an intent to revoke or modify this Agreement. The Court concludes, however, that the Hand-Signed Agreement was revoked by the TriNet Agreement, which in turn was revoked by the Body Sculpt Agreement. Plaintiffs argue that the Hand-Signed Agreement is unenforceable because it is unconscionable. None of the plaintiffs' arguments as to substantive unconscionability would apply to the Body Sculpt or TriNet Agreements, which substantially modified or removed the provisions with which the plaintiffs took issue in the Hand-Signed Agreement. The Plaintiffs argue that the Hand-Signed Agreement is procedurally unconscionable for a number of reasons. The parties' bargaining power was unequal, the plaintiffs contend, because plaintiffs were less sophisticated having only completed a high school education and worked in sales for most of their careers and because the plaintiffs' only choice was to accept the agreement or not work. In addition, the defendants presented the agreement along with other papers, and put the plaintiffs under constant pressure to sign it as soon as possible, before the close of the same business day. Moreover, the plaintiffs allege, the defendants did not tell them that they could negotiate the terms or consult an attorney. Nor did the defendants tell them that the Hand-Signed Agreement applied a shorter statute of limitations than the FLSA, or where they could access the AAA arbitration rules. These allegations, however, are not enough to establish procedural unconscionability. It is true that the bargaining power between the plaintiffs and the defendants was not equal. But equality is not required, provided the circumstances of the contract's creation are not grossly unreasonable. Taking the facts in the light most favorable to the plaintiffs, they spoke and read fluent English, had well over a decade of experience in the working world, and were given at least until the end of a business day to review the agreement. And the fact most likely to indicate a lack of meaningful choice that the contract was a condition of their continued employment has been ruled insufficient to render an agreement's formation grossly unreasonable. The Court cannot conclude, therefore, that the Hand-Signed Agreement is procedurally unconscionable. The Defendants have moved to dismiss the complaint but, in the alternative, request that the Court stays the case and compel the parties to arbitration. The Court concludes that the Court must stay the case. As the Second Circuit has observed, the FAA's text, structure, and underlying policy require me to stay the case rather than dismiss it. Although dismissing the matter might assist in efficient docket management, the FAA clearly removes such discretion. The Court therefore stay the case while the parties proceed to arbitration. A full-text copy of the District Court's July 2, 2018 Opinion and Order is available at https://tinyurl.com/ya87db3v from Leagle.com. Maria Carolina Thompson & Kimberly Capuano, Indvidually and on behalf of others similarly situated, Plaintiffs, represented by Jeffrey D. Johnson, Garson Johnson LLC, pro hac vice, James A. DeRoche, Garson Johnson LLC, pro hac vice, Robert E. DeRose -- bderose@barkanmeizlish.com -- Barkan Meizlish, pro hac vice & Robi J. Baishnab -- rbaishnab@barkanmeizlish.com -- Barkan Meizlish, LLP, pro hac vice. Body Sculpt International, LLC, doing business as, TriNet HR Corporation, doing business as, TriNet HR III, Inc., doing business as, Aesthetics Physicians, P.C., doing business as & Michael J. Garrison, Defendants, represented by Adam E. Collyer -- Adam.Collyer@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smthi LLP & Jason D. Stitt -- Jason.Stitt@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP, pro hac vice. BRF SA: Birminghan Named Lead Plaintiff in Securities Suit ---------------------------------------------------------- The United States District Court for the Southern District New York granted the City of Birmingham Retirement and Relief System’s Motion for a Appointment as Lead Plaintiff in the case captioned RYO NAKAMURA, individually and on behalf of all others similarly situated, Plaintiff, v. BRF S.A., PEDRO DE ANDRADE FARIA, JOSE ANTONIO DO PRADO FAY, CLAUDIO GALEAZZI, JOSE ALEXANDRE CARNEIRO BORGES, AUGUSTO RIBEIRO JUNIOR, LEOPOLDO VIRIATO SABOYA and HELIO RUBENS MENDES DOS SANTOS JUNIOR, Defendant, No. 18-cv-2213(PKC)(S.D.N.Y.). Two motions for appointment as lead plaintiff have been filed by purported class members. One motion is brought by Birmingham, a public pension fund that purchased and sold American Depository Receipts (ADRs) in defendant BRF S.A. This case is brought as a putative class action asserting claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934. BRF is alleged to be the world's largest poultry exporter, with its headquarters in Brazil. Its ADRs trade on the New York Stock Exchange. The Complaint alleges that the defendants materially misrepresented and omitted that BRF had bribed public officials in order to undermine food safety inspections and conceal unsanitary conditions at BRF's meatpacking facilities. The Complaint alleges that the defendants' misstatements and omissions artificially inflated BRF's stock price, which dropped when investors learned the truth about company practices and the increased risk of regulatory enforcement and prosecution in light of the defendants' alleged scheme. The Private Securities Litigation Reform Act (PSLRA) provides that the district court shall appoint a lead plaintiff that it determines to be most capable of adequately representing the interests of class members. Soares Group The Soares Group asserts that it has lost $879,276.97 as a result of the defendants' alleged fraud, and has submitted charts reflecting transactions in BRF shares. ARS purchased 90,000 shares during the class period and Platinum purchased 316,000 shares. It appears that each entity has retained those share. ARS asserts that it has lost $248,250 as a result of defendants' alleged fraud, and Platinum claims that it has lost $631,026.97. The Soares Group states that it satisfies the criteria of Rule 23 because its losses are typical of members of the proposed class and that its interests are aligned with the class in seeking maximum recovery for any losses incurred. The Soares Group's moving papers did not include any submission on the appropriateness of grouping the two Soares entities each separately owned and controlled by a different brother together as a lead plaintiff. In its response papers, it filed a joint declaration of Arlindo and Nelson Soares. Their assertions do not satisfy the threshold requirements that are weighed in the grouping of proposed lead plaintiffs. The joint declaration identifies Arlindo and Nelson Soares as brothers with a long history of cooperation in business matters. The Court affords some weight to the brothers' familial relationship and the likelihood that they will act in unison. Second, the declaration is similarly vague as to their involvement in the litigation to date. The declaration states only that they have reviewed the Complaint's allegations, and, after consulting with our counsel, thereafter approved the filing of this motion. Their involvement in the litigation thus far appears to be minimal. Third, the plans for cooperation described in the declaration are vague and conclusory. The joint declaration states that they will oversee their counsel, exercise joint decision-making, actively monitor the activities of their counsel and that they have established procedures for overseeing the progress of the litigation and communicating regularly between themselves and their counsel. The Court concludes that the Soares Group has not satisfied its burden of showing that is appropriate to aggregate the two separate holding companies as a single lead plaintiff. Its motion for appointment as lead plaintiff is therefore denied. Birmingham Birmingham asserts that it purchased 145,673 BRF ADRs and has lost $749,857 as a result of defendants' alleged fraud. It has submitted a chart reflecting that during the class period, Birmingham purchased BRF's ADRs at a price of $1,862,231.21, and sold them during the class period for proceeds of $1,112,373.60, reflecting total losses of $749,857.61. Birmingham states that it satisfies the criteria of Rule 23 because its losses are typical of members of the proposed class and that his interests are aligned with the class in seeking maximum recovery for any losses incurred. The Soares Group urges that Birmingham is not an appropriate lead plaintiff because it falls under the PSLRA's professional plaintiff restriction. Even if Birmingham fell within the professional plaintiff restriction, the Court would be inclined to grant its motion, given both its status as an institutional investor and the presumptively most adequate plaintiff. The provision of the PSLRA restricting the use of professional plaintiffs was largely directed at private individuals, and courts have routinely waived the restriction in the case of qualified institutional investors. A full-text copy of the District Court's July 2, 2018 Opinion and Order is available at https://tinyurl.com/yd47fuom from Leagle.com. City of Birmingham Retirement and Relief System, Lead Plaintiff, represented by David Avi Rosenfeld -- drosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Ryo Nakamura, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -jalieberman@pomlaw.com -- Pomerantz LLP. Steven Trabish, Movant, represented by Adam M. Apton -- aapton@zlk.com -- Levi & Korsinsky LLP. John Smolen, Movant, represented by Phillip C. Kim -- pkim@rosenlegal.com -- The Rosen Law Firm P.A. BPRINT Investments LLC & Julio Almeida, Movants, represented by Jeremy Alan Lieberman, Pomerantz LLP. Soares Group, Movant, represented by Michael Walter Stocker -- mikes@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. BRF S.A., Defendant, represented by Jay B. Kasner – jay.kasner@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Scott D. Musoff – scott.musoff@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. CAL WEST: $185K Class Settlement Has Prelim Court Approval ---------------------------------------------------------- The United States District Court for the Eastern District of California granted Plaintiffs' Motion for Preliminary Approval of Class Settlement and Conditional Certification of Settlement Class in the case captioned CARMELA MORA, on behalf of herself and all others similarly situated, Plaintiffs, v. CAL WEST AG SERVICES, INC., et al., Defendants, Case No. 1:15-cv-1490-LJO-EPG (E.D. Cal.) Plaintiff Carmela Mora, as an individual and on behalf of herself and all others similarly situated, filed suit against Defendants Cal West Ag Services, Inc., Jon Marthedal, and Eric Marthedal alleging the following wage and hour claims for the proposed class, inter alia: 1. Violations of the Agricultural Worker Protection Act (AWPA) 2. Failure to Pay Minimum Wages; California Industrial Welfare Commission (IWC) 3. Failure to Provide Timely Paid Rest Periods or Compensation in Lieu Thereof The Settlement amount is $185,000, and is proposed to be distributed as follows: (1) payments to the named Plaintiff in compensation for her role as class representative; (2) payments to class counsel for reasonable attorneys' fees and costs; (3) payment to the California Labor and Workforce Development Agency (LWDA) as the LWDA's share of the settlement of civil penalties under the agreement; (4) payment to the settlement administrator for its reasonable fees and expenses; and (5) distribution of the net settlement amount to all class members who submit a timely and valid claim form. Numerosity Here, the proposed class is defined as: All Cal West AG Service Inc.'s non-exempt workers who were employed by and/or performed work for Defendants Jon and Eric Marthedal as agricultural workers at Marthedal Farms in California. The settling parties represent that the core damages affect "approximately 225 non-exempt field workers who worked for Defendants for the relatively brief time picking and packing blueberries," but that the broader dates of working for Defendants were used for the settlement class to provide for any claims outside the briefer period that may be discovered when the class data is produced. The Court finds that the Plaintiff has demonstrated that the numerosity requirements of Rule 23(a)(1) are satisfied. Commonality Here, the Plaintiff contends that the class's claims involve common questions of both fact and law regarding Defendants' alleged failure to abide by federal and state wage and hour law. The Plaintiff alleges that the Defendants failed to pay class members the minimum wage; failed to provide class members with rest periods or compensation in lieu of rest periods; failed to provide class members with lawful full 30-minute meal periods; failed to provide class members with accurate, itemized wage statements; and failed to timely pay terminated class members their full pay at the time of termination. The Plaintiff has demonstrated that the commonality requirements of Rule 23(a)(2) are satisfied. Typicality Here, the Plaintiff contends that her claims are essentially identical to the claims for the expected claimants of non-exempt field workers who worked for Defendants for the relatively brief time from April 30, 2015 to June 5, 2015 picking and packing blueberries. According to the Complaint, the Plaintiff was employed as a non-exempt employee directly or jointly by the Defendants on land owned, leased, and/or operated by Defendant Cal West Ag and the Marthedal Defendants at various times during the class period of September 30, 2011, through September 30, 2015, and suffered from the same types of alleged violations of federal and state law by the Defendants as suffered by the absent proposed class members. The Plaintiff has demonstrated that the typicality requirement of Rule 23(a)(3) is satisfied because the claims of Plaintiff Mora, the class representative, is reasonably co-extensive with those of the absent proposed class members. Adequacy of Representation Here, the Plaintiff class representative, Mora, has submitted evidence that there is no conflict of interest between herself and the rest of the class. Mora possesses the same interests and injuries as the absent proposed class members, and has vigorously prosecuted this case on behalf of the class, as demonstrated by initiating this lawsuit, undertaking and affirmatively participating in the investigation of the issues in the case, discovery, and settlement negotiations. The Court finds that Plaintiff class representative Mora satisfies the adequacy of representation requirement. The Plaintiff class representative seeks appointment of her current counsel, Mallison & Martinez, as Class Counsel. The attorneys at this firm have prosecuted this action on behalf of the Plaintiff and the proposed class since the commencement of the litigation; have extensive experience litigating class actions; and have been certified by numerous state and federal courts as adequate class counsel. The Court finds that the Plaintiff class representative's current counsel of Mallison & Martinez satisfies the adequacy requirements with respect to the proposed class. Rule 23(b) Requirements Here, the Plaintiff asserts that common questions to class members raised in this action predominate over any individualized questions. The Court agrees. The Complaint alleges that the Defendants failed to pay class members the minimum wage; failed to provide class members with rest periods or compensation in lieu of rest periods; failed to provide class members with lawful full 30-minute meal periods; failed to provide class members with accurate, itemized wage statements; and failed to timely pay terminated class members their full pay at the time of termination. The Court finds that the predominance requirement is met here. Superiority Here, the Plaintiff contends that a class action is superior to other available means for the fair and efficient adjudication of the claims. The Defendants' alleged state wage and hour violations resulted in class-wide injuries and damages to an estimated 225 workers. The Plaintiff's counsel estimates that, if all of these workers participate in the Settlement, each would be entitled to approximately $393. Thus, this case involves multiple claims for relatively small individual sums. If plaintiffs cannot proceed as a class, some perhaps most will be unable to proceed as individuals because of the disparity between their litigation costs and what they hope to recover. The Court finds that the superiority requirement is met here. Preliminary Fairness Determination Although the factors in a court's fairness assessment will vary from case to case, courts generally must weigh: (1) the strength of the plaintiff's case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. Here, after balancing the relevant factors, the Court finds preliminary approval of the Settlement to be appropriate. Nature of Settlement Negotiations; Extent of Discovery; Stage of Proceedings; Experience and Views of Counsel Based on these representations, the Court finds that the settling parties agreed to the Settlement after conducting extensive investigation and discovery, which permitted counsel to properly evaluate the strengths and weaknesses of the case. The facts represented by the Plaintiff, as well as the representations of counsel during the May 3, 2018, hearing in this matter, convinces the Court that the Settlement was the product of serious, informed, arm's-length negotiations by the parties. Risks of Continued Litigation The Plaintiff explains in her brief that the proposed settlement represents a fair compromise, given the value of the class wage claims and the significant risk of continued litigation, which would provide no guarantee of increased benefits over the settlement amount. If the action were to continue without settlement, the Plaintiff anticipates vigorous and lengthy challenges to the merits of the class claims, and that while the Plaintiff is confident of a favorable outcome, there is a substantial risk that legal developments could seriously diminish the value of the class claims. The Court finds that the risks and uncertainties of continued litigation weigh in favor of the Settlement. The Amount Offered in Settlement In determining whether the amount offered in settlement is fair and reasonable, a court compares the proposed settlement amount to the best possible outcome for the class. Here, the Settlement provides for $185,000 in total payment. The settlement share for each claimant will be determined by the Settlement Administrator and will be based on (a) the claimant's total number of pay periods in which the claimant was employed by Cal West at Marthedal Farms during the class period, (b) divided by the aggregate number of pay periods for the Defendants of all participating class members between September 30, 2011, and the date of the preliminary approval, (c) multiplied by the value of the net settlement amount. Although the Plaintiff did not, in her moving papers, provide an estimate of the monetary relief expected for each class member, during the May 3, 2018, hearing, the Plaintiff's counsel represented that, assuming all of the estimated 225 potential class members participate in the settlement, each would receive, on average, approximately $393. The Plaintiff's counsel has provided an estimate of $1,200,000 as the likely recovery at trial if they were to prevail, with $1,000,000 of that based on derivative penalties. As noted, the amount of the Settlement is $185,000. Although the Settlement amount is only 15% of the $1,200,000 likely recovery estimate provided by the Plaintiff's counsel, when the $1,000,000 in estimated derivative penalties is removed, the estimated likely recovery drops to $200,000, making the Settlement amount 92% of the estimated likely recovery. The Court finds this degree of recovery to be fair and reasonable in light of the uncertainties the proposed class faces in this case, including the uncertainties surrounding the recovery of penalties. Accordingly, the following persons be preliminarily certified as Class Members solely for the purpose of entering a settlement in this matter: All Cal West Ag Service Inc.'s non-exempt workers who were employed by and/or performed work for Defendants Jon and Eric Marthedal as agricultural workers at Marthedal Farms in California between September 30, 2011 and [the date of preliminary approval]. The Settlement Agreement be granted preliminary approval as it falls within the range of possible approval as fair, adequate, and reasonable, and appears to be the product of arm's length and informed negotiations and to treat all Class Members fairly. A full-text copy of the District Court's June 28, 2018 Findings and Recommendations is available at https://tinyurl.com/yatbhflc from Leagle.com. Carmela Mora, on behalf of herself and all others similarly situated, Plaintiff, represented by Mario Martinez -- mmartinez@farmworker.com -- Martinez Aguilasocho & Lynch Aplc, Eric Sebastian Trabucco -- etrabucco@themmlawfirm.com -- Mallison & Martinez, Hector Rodriguez Martinez -- HectorM@TheMMLawFirm.com -- Mallison & Martinez, Joseph Donald Sutton -- JSutton@TheMMLawFirm.com -- Mallison & Martinez, Marco A. Palau -- MPalau@TheMMLawFirm.com -- Mallison & Martinez & Stanley S. Mallison -- stanm@mallisonlaw.com -- Mallison & Martinez. Cal West Ag Services, Inc., Defendant, represented by Anthony Peter Raimondo -- apr@raimondoassociates.com -- Raimondo & Associates, Gerardo Hernandez, Jr. -- gvh@raimondoassociates.com -- Raimondo & Associates & Thomas Elmer Campagne -- tcampagne@campagnelaw.com -- Campagne & Campagne, A Prof. Corp. Jon Marthedal & Eric Marthedal, Defendants, represented by Thomas Elmer Campagne, Campagne & Campagne, A Prof. Corp. & Justin Thomas Campagne, Campagne & Campagne, A Prof. Corp. Jon Marthedal, Counter Claimant, represented by Justin Thomas Campagne, Campagne & Campagne, A Prof. Corp. Cal West Ag Services, Inc., Counter Defendant, represented by Gerardo Hernandez, Jr., Raimondo & Associates. Cal West Ag Services, Inc., Counter Claimant, represented by Anthony Peter Raimondo, Raimondo & Associates & Gerardo Hernandez, Jr., Raimondo & Associates. Jon Marthedal, Counter Defendant, represented by Justin Thomas Campagne, Campagne & Campagne, A Prof. Corp. CBOE EXCHANGE: Cassandra Trading Sues over VIX Price Manipulation ----------------------------------------------------------------- CASSANDRA TRADING GROUP, LLC, individually and on behalf of all others similarly situated, Plaintiff v. CBOE EXCHANGE, INC.; CBOE GLOBAL MARKETS, INC.; CBOE FUTURES EXCHANGE, LLC; and JOHN DOES, Defendants, Case No. 1:18-cv-05093 (N.D. Ill., July 25, 2018) is an action pursuant to the Sherman Act, the Clayton Act, and the Commodity Exchange Act, for damages, costs of suit, injunctive relief and other relief against the Defendants for their illegal manipulation of the Chicago Board Options Exchange ("CBOE") Volatility Index ("VIX"). According to the complaint, the Defendant CBOE alone had access to the SPX Options data used to calculate VIX settlement prices, was solely responsible for calculating those prices, and was solely responsible for publishing the final settlement prices to the market. The Defendant CBOE had access to all of the relevant data necessary to reveal the fact that manipulators rigged the settlement prices. Having viewed these data on the relevant settlement dates in real-time as part of its Special Opening Quotation process, the Defendant CBOE knew or was reckless as to whether the Defendants manipulated the VIX settlement values. Rather than disclosing the fact of the manipulation, however, the Defendant CBOE affirmatively and knowingly, or recklessly, published the wrong, manipulated prices to the market. The Defendant CBOE not only ignored the flaws in the settlement process, but it allowed and encouraged the Defendants to exploit them. Although CBOE's proprietary settlement process for VIX Options and Futures was complex, it was subject to corruption by those who knew how to manipulate the process. The Defendant CBOE created the environment in which this collusive conduct can occur. Indicative of the Defendant CBOE's intent to facilitate the manipulation and collusion of VIX Instruments when it decided to: (a) incorporate out-of-the-money SPX Options in the VIX settlement calculation; (b) give greater weight to certain SPX Options; (c) not require a premium threshold for SPX Options to be included in the settlement calculation; (d) base the SOQ on a single opening price; (e) sometimes use a special opening price based not on actual trades but solely on bid-ask spreads; and (f) grant SPX Options market-making privileges to some or all of the same institutions engaging in collusive and manipulative conduct. Chicago Board Options Exchange, Inc. serves as a financial options trading platform. The Company offers a range of services including index options allowing cash-settled agreements awarding holdings based on the underlying dollar value of the index, as well as metrics and electronic reference services. Chicago Board Options Exchange serves clients worldwide. [BN] The Plaintiff is represented by: Douglas A. Millen, Esq. Michael J. Freed, Esq. Michael E. Moskovitz, Esq. Brian M. Hogan, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Facsimile: (224) 632-4521 E-mail: dmillen@fklmlaw.com mfreed@fklmlaw.com mmoskovitz@fklmlaw.com bhogan@fklmlaw.com - and - Guido Saveri, Esq. R. Alexander Saveri, Esq. SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111 Telephone: (415) 217-6810 Facsimile: (415) 217-6813 E-mail: guido@saveri.com rick@saveri.com - and - Vincent J. Esades, Esq. HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 Facsimile: (612) 338-4692 E-mail: vesades@heinsmills.com COMMERCIAL TRADE: Schnorrbusch Alleges Wrongful Debt Collections ---------------------------------------------------------------- AMANDA SCHNORRBUSCH, individually and on behalf of all others similarly situated, Plaintiff v. COMMERCIAL TRADE, INC., Defendant, Case No. 3:18-cv-01850-G (N.D. Tex, July 18, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Commercial Trade, Inc. offers debt collection services. he company caters to hospitals, ambulance companies, medical doctors, anesthesiologists, surgeons, occupational therapists, medical equipment suppliers, and pediatricians. Commercial Trade, Inc. was founded in 1967 and is based in Bakersfield, California. [BN] The Plaintiff is represented by: Joel S. Halvorsen, Esq. Gregory M. Klote, Esq. HALVORSEN KLOTE 680 Craig Road, Suite 104 St. Louis, MO 63141 Telephone: (314) 451-1314 Facsimile: (314) 787-4323 E-mail: joel@hklawstl.com greg@hklawstl.com CONTINENTAL RESOURCES: To Complete "Strack" Settlement in 2019 -------------------------------------------------------------- Continental Resources, Inc. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018, that it expects to satisfy the remainder of its settlement obligations in the class action suit by Billy J. Strack and Daniela A. Renner in 2019. The Court entered an order formally approving the settlement on June 12, 2018. The order approving the settlement is not subject to appeal. On June 20, 2018, the court entered an order approving Plaintiff Counsels' request for Attorney Fees and Expenses. The deadline for an appeal of the order approving Attorney Fees and Expenses was August 13, 2018. In accordance with the settlement terms, the Company expects to make payments totaling approximately US$50 million in the third quarter of 2018 and expects to satisfy the remainder of its settlement obligations in 2019. In November 2010, a putative class action was filed in the District Court of Blaine County, Oklahoma by Billy J. Strack and Daniela A. Renner as trustees of certain named trusts and on behalf of other similarly situated parties against the Company. The Petition, as amended, alleged the Company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners from crude oil and natural gas wells located in Oklahoma. The plaintiffs alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and sought recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the proposed class. The Company denied all allegations and denied that the case was properly brought as a class action. On June 11, 2015, the trial court certified a "hybrid" class requested by plaintiffs over the objections of the Company. The Company appealed the trial court's class certification order. On February 8, 2017, the Oklahoma Court of Civil Appeals reversed the trial court's ruling on certification and remanded the case for further proceedings. The plaintiffs filed a Petition for Rehearing which was denied by the Oklahoma Court of Civil Appeals. Plaintiffs then filed a Petition for Writ of Certiorari on May 23, 2017 to the Oklahoma Supreme Court, which was denied on October 2, 2017. On October 10, 2017, Plaintiffs filed with the trial court a "Second Amended and Renewed Motion for Class Action Certification and Request that the Court to Set a Briefing Schedule Related to Class Certification." During the litigation the Company was not able to estimate a reasonably possible loss or range of loss or what impact, if any, the ultimate resolution of the action would have on its financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the existence and the potential size of the class, the scope and types of the properties and agreements involved, the production years involved, and the ultimate potential outcome of the matter. The Company further disclosed that it was reasonably possible one or more events could occur in the near term that could impact the Company's ability to estimate the potential effect of this matter if any, on its financial condition, results of operations or cash flows. During the litigation the Company also disclosed plaintiffs alleged underpayments in excess of US$200 million as damages, which may increase with the passage of time, a majority of which would be comprised of interest. After certification of the case as a class action was reversed the parties continued settlement negotiations. Due to the uncertainty of and burdens of litigation, on February 16, 2018, the Company reached a settlement in connection with this matter. Under the settlement, the Company initially expected to make payments and incur costs associated with the settlement of approximately US$59.6 million. The Company accrued a loss for such amount at December 31, 2017, which was subsequently increased to US$61.7 million at June 30, 2018 to reflect additional settlement obligations resulting from the passage of time. Such accrual is included in "Accrued liabilities and other" on the condensed consolidated balance sheets. On April 3, 2018, the District Court of Garfield County, Oklahoma preliminarily approved the settlement and set certain dates applicable to the settlement including the timing and content of Notice, Opt-out, and Objections to Class Members. The Fairness Hearing was held on June 11, 2018. Continental Resources, Inc. is an independent crude oil and natural gas company engaged in the exploration, development and production of crude oil and natural gas. The company is based in Oklahoma City, Oklahoma. COUNTY OF INYO, CA: More Info Needed in "Wagner" Settlement ----------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order Requiring Supplemental Submission in Support of Stipulation and Proposed Order for Approval of Settlement Agreement and Dismissal in the case captioned AMANDA WAGNER and HEALTHER LIND, et al., on behalf of themselves and all similarly situated individuals, Plaintiffs, v. COUNTY OF INYO, Defendant, No. 1:17-cv-00969-DAD-JLT (E.D. Cal.). Nine plaintiffs join in this action brought against defendant County of Inyo with allegations that they were denied proper compensation in violation of the Fair Labor standards Act (FLSA). Here, the parties have submitted a stipulation and proposed order for court approval of a settlement along with the request to dismiss the action with prejudice. Therein, the parties make only a cursory mention of what they characterize as three bona fide disputes: (1) a dispute about the proper methodology for calculating the regular rate and defendant's entitlement to seek offsets and credits pursuant to 29 U.S.C. 207(h)(2); (2) whether the defendant can present a good faith defense; and 3) whether the defendant can present a defense to the extent of liability on the basis of willfulness. The parties' stipulation provides no factual representations or significant analysis as to why this settlement agreement is a fair and reasonable resolution of a bona fide dispute, as required under the FLSA. As a result, the court is not able to make the findings that are required in order to approve this proposed settlement agreement. Accordingly, the parties are directed to supplement their stipulation for approval and dismissal by way of declaration(s), briefing or both, addressing why the proposed settlement is a fair and reasonable resolution of a bona fide dispute, including with respect to the attorneys' fees to be awarded. A full-text copy of the District Court's June 28, 2018 Order is available at https://tinyurl.com/y839at5jfrom Leagle.com. Amanda Wagner & Heather Lind, Plaintiffs, represented by David Emilio Mastagni -- davidm@mastagni.com -- Mastagni Holstedt, APC, Isaac Sean Stevens -- istevens@mastagni.com -- Mastagni Holstedt, APC, Ace Thomas Tate -- atate@mastagni.com -- Mastagni Holstedt, APC & Ian Barclay Sangster -- isangster@mastagni.com -- Mastagni Holstedt, APC. County of Inyo, Defendant, represented by Barbara S. Van Ligten -- bvanligten@aalrr.com -- Atkinson Andelson & Nate J. Kowalski -- nkowalski@aalrr.com -- Atkinson, Andelson, Loya, Ruud & Romo. CSK AUTO: Court OKs $395K Class Settlement in "Melgar" ------------------------------------------------------ The United States District Court for the Northern District of California granted Plaintiffs' Motion for Preliminary Approval of a Class Action Settlement in the case captioned OSMIN MELGAR, et al., Plaintiffs, v. CSK AUTO, INC., Defendant, Case No. 13-cv-03769-EMC (N.D. Cal.). The Plaintiffs filed a class action against Defendant CSK Auto, Inc. ("CSK"), now known as O'Reilly Auto Enterprises, LLC ("OR"), claiming that the company failed to reimburse Store Managers, Assistant Store Managers, and/or Retail Service Specialists for costs incurred in using their personal vehicles to make bank deposits on behalf of OR. The operative complaint is the second amended complaint. Under the settlement agreement, the gross settlement amount that OR would pay the class is $395,000. Although the gross amount is relatively small, the Court finds that the settlement falls within a reasonable range of possible settlements, such that the motion for preliminary approval may be granted. Accordingly, the Court grants preliminary approval. At this juncture, however, the granting of the motion is conditioned on certain modifications to the settlement. A full-text copy of the District Court's June 25, 2018 Order is available at https://tinyurl.com/yaxwvaze from Leagle.com. Osmin Melgar, individually and on behalf of all others similarly situated & Karo Khatchadoorian, individually and on behalf of all others similarly situated, Plaintiffs, represented by Michael Malk -- mm@malklawfirm.com -- Michael Malk, ESQ, APC. CSK Auto, Inc., an Arizona Corporation, Defendant, represented by James Michael Peterson -- peterson@higgslaw.com -- Higgs Fletcher and Mack LLP, Edwin Mendelson Boniske -- boniske@higgslaw.com -- Higgs Fletcher and Mack LLP & Jason Conroy Ross -- jasross@gmail.com -- Higgs Fletcher Mack. CSX TRANSPORTATION: Darrel Andrews Sues over Mass Layoff -------------------------------------------------------- DARREL ANDREWS, individually and on behalf of all others similarly situated, Plaintiff v. CSX TRANSPORTATION, INC., Defendants, Case NO. 3:18-cv-00659 (M.D. Tenn., July 17, 2018) alleges violation of the Worker Adjustment and Retraining Notification Act. According to the complaint, on July 18, 2017 -- with an effective date of July 25, 2017 -- the Defendant made a mass layoff of its mechanical craft employees who were employed at the CSX Nashville, TN Mechanical shops. The Defendant failed to provide 60 days' advance written notice as required by the WARN Act, to the affected employees. Because of the July 18, 2017 terminations, the Defendant's reduction in forces constituted a mass layoff which became effective July 25, 2017 at the Nashville Mechanical Shop. As such the Plaintiff and other similarly situated employees, should have received the full protection afforded by the WARN act. CSX Transportation, Inc. operates rail networks in the United States. CSX Transportation, Inc. was formerly known as Seaboard System Railroad, Inc. and changed its name to CSX Transportation, Inc. in July 1986. The company was incorporated in 1944 and is based in Jacksonville, Florida. CSX Transportation, Inc. operates as a subsidiary of CSX Corp. [BN] The Plaintiff is represented by: J. Gerard Stranch, Esq. Benjamin A. Gastel, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa Parks Ave. Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com beng@bsjfirm.com - and - Daniel R. Francis, Esq. CRUMLEY ROBERTS, LLP 2400 Freeman Mill Road, Suite 200 Greensboro, N.C. 27406 Telephone.: (336) 333-9899 E-mail: DRFrancis@CrumleyRoberts.com DANELL CUSTOM: $1.5MM Settlement in FLSA Suit Has Final Approval ---------------------------------------------------------------- In the case, FRANCISCO RODRIGUEZ, et al., Plaintiffs, v. DANELL CUSTOM HARVESTING, LLC, et al., Defendants, Case No. 1:16-cv-01848-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California granted the Plaintiffs' unopposed motion for final approval of the class action settlement. The Plaintiffs, on behalf of themselves and other members of the public similar situated, filed the action on Dec. 7, 2016, against the Defendants alleging failure to pay overtime wages in violation of the Fair Labor Standards Act ("FLSA"); failure to pay overtime wages in violation of California Labor Code sections 510, 1194 and IWC wage orders; failure to provide meal and rest periods in violation of California Labor Code section 226.7 and IWC wage orders; failure to furnish accurate wage statements in violation of California Labor Code section 226; indemnification of work related expenses, California Labor Code section 2802; waiting time penalties, California Labor Code section 203; Unfair Business Practices in violation of California Business and Professions Code section 17200, et seq.; and civil penalties for violation of the California Labor Code section 2699. The Plaintiffs brought this action proposing six classes of non-exempt employees who worked for the Defendants during the limitations period: (a) Class of mechanics, maintenance workers, truck drivers, and weighers who worked more than 40 hours per work week, and were not compensated for all said overtime hours at the appropriate rates of pay ("FLSA Overtime Class"); (b) Class of mechanics and weighers who worked more than eight hours per work day and/or 40 hours per work week, and were not compensated for all said overtime hours at the appropriate rates of pay ("Labor Code Overtime Class"); (c) Class of employees (all five employee groups) who were not provided with adequate meal and rest breaks as required by law ("Meal and Rest Period Class)"; (d) Class of employees (all five employee groups) who were not furnished with accurate wage statements ("Wage Statement Class"); (e) Class of mechanics, maintenance workers and weighers who have not been reimbursed for out-of-pocket expenses ("Indemnification of Work-Related Expenses Class"); and (f) Class of employees (all five employee groups) whose employment ended and were not paid all of their wages ("Waiting Time Penalties Class"). The Plaintiffs' filed a motion for preliminary approval of the class action settlement on Nov. 22, 2017. A hearing on the motion for preliminary approval was held on Dec. 13, 2017. Following supplemental briefing and several telephonic conferences on Feb. 23, 2018, an order issued granting preliminary approval of the class action settlement. On June 8, 2018, the Plaintiffs filed an unopposed motion for final approval of the class action settlement. On June 22, 2018, the Plaintiffs filed a declaration in support of the motion for attorney fees and the unredacted time accounting records were filed under seal. The settlement agreement provides $1.5 million to resolve all claims of the settlement class for the alleged failure to provide meal and rest breaks and pay wages, penalties, reimbursement of work related expenses, and attorney fees and costs. The following class is certified for purposes of settlement only: all persons who are or were employed in California by Defendants as non-exempt (i) mechanics, (ii) maintenance workers, (iii) farm equipment operators, (iv) truck drivers, and (v) weighers at any point during the Class Period and who do not properly and timely opt out of the Settlement Class by having requested exclusion. This definition excludes all workers who previously settled and released their claims in the California Labor Commissioner. The class period is defined as any time between Dec. 7, 2012, and the preliminary approval order. Prior to any settlement funds being paid to eligible class members, deductions to the common fund will be made for service awards to the named Plaintiffs, an award of attorney fees and costs to the class counsel, all costs of settlement administration, and a Private Attorneys General Act ("PAGA") payment to the California Labor and Workforce Development Agency ("LWDA"). The Class counsel will receive 25% of the gross settlement fund for a total of $375,000. Additionally, the class counsel will be paid $31,000 for the costs incurred in prosecuting the action. The named Plaintiffs will each receive a payment of $7,500 as a service award for the efforts that they have taken on behalf of the class, in addition to the amount he or she will receive under the settlement. The remainder of the common fund constitutes the net settlement fund. The Defendants will separately pay their share of the payroll taxes to the Claims Administrator. The net settlement funds are allocated as follows: 25% for unpaid wage claims; 80% less $10,000 for statutory penalties and interest. Of the $10,000 withheld for penalties, $7,500 will be paid to the LWDA as the agency's share of the PAGA penalties. The Settlement shares will be distributed by using the dates worked by each class member from Dec. 10, 2012 through May 2017 and calculating the number of pay periods worked by each class member and the combined number of pay periods for the entire class. The actual hours worked and the hourly rate of each class member will be used to calculate damages and the percentage that each employee would be entitled to from the collective total amount owed. This will determine the percentage that each settlement class member will receive from the net settlement amount. Twenty-one percent of the net settlement fund constitutes overtime wages for the FLSA class. Any unclaimed funds will be sent to the State of California Unpaid Property Fund to be held in the name of and for the benefit of the class member under California's escheatment laws. Since the preliminary approval, the parties have agreed to the following modifications to the settlement agreement. The named class members have reduced the amount they are seeking an enhancement award for their services in the action from $7,500 to $5,000. Any unclaimed funds will be sent to the California Division of Labor Standards Enforcement's Unpaid Wages Fund to be held in the name of and for the benefit of the class members under California's escheatment laws. This is the more specific fund for unclaimed wages. Magistrate Judge Boone, having reviewed the record and considering that no class member has objected to the settlement, finally approved the settlement agreement and all provisions will be effectuated. Upon completion of administration of the settlement agreement, the claims administrator will provide written certification of such completion to the Court and the counsel for the parties. Class representatives Rodriguez, Jesus Hernandez Infante, Marcos Garcia, Juan Manuel Bravo, Estela Patino, Jose F. Orozco, and Antonio Ortiz are each awarded an incentive award of $4,000, to be paid from the gross settlement fund. The class counsel is awarded attorney fees in the amount of $375,000 and costs of $31,000, to be paid from the gross settlement fund. The Magistrate Judge finds that an allocation of $10,000 of the gross settlement fund to the PAGA claims is reasonable. The claims administrators will pay $7,500 (75% of the allocation) to the California Labor and Workforce Development Agency. The claims administrator will be paid $14,500 from the gross settlement fund for the cost of notice and claims administration. He finally approved and ordered the payment of the individual settlement payments to be paid to the class members and members of the collective action as set forth in the Settlement Agreement to be made from the net settlement proceeds in accordance with the terms of the Settlement Agreement. The claims administrator will send any unclaimed funds to California Division of Labor Standards Enforcement's Unpaid Wages Fund to be held in the name of and for the benefit of class members under California's escheatment laws. The Magistrate Judge entered judgment in favor of the Plaintiffs and against the Defendants, and approved the terms of the settlement agreement. He dismissed with prejudice the action. Each side will bear its own costs and attorney fees, except as provided by the settlement agreement and set forth. The hearing set for July 11, 2018, is vacated. A full-text copy of the Court's July 10, 2018 Order is available at https://is.gd/iuTa8X from Leagle.com. Francisco Rodriguez, Jesus Hernandez Infante, Marco Garcia, Juan Manuel Bravo, Estela Patino, Jose F. Orozco & Antonio Ortiz, Plaintiffs, represented by Enrique Martinez, Law Offices of John E. Hill. Danell Custom Harvesting, LLC, a California Company, Rance Danell, Eric Danell, David Danell & Justin Danell, Defendants, represented by Howard A. Sagaser -- has@sw2law.com -- Sagaser, Watkins & Wieland, PC, Ian Blade Wieland -- ian@sw2law.com -- Sagaser, Watkins & Wieland, PC & William M. Woolman -- bill@sw2law.com -- Sagaser, Watkins & Wieland PC. DAVITA INC: Delaware Court Stays Securities Fraud Suit ------------------------------------------------------ The United States District Court for the District of Delaware granted Defendant's Motion to Stay the case captioned In re DAVITA INC. STOCKHOLDER DERIVATIVE LITIGATION. This Document Relates To: ALL ACTIONS. C.A. No. 17-152-MPT (D. Del.) pending the outcome of a motion to dismiss in a related securities action filed in the District of Colorado. The initial complaint was filed, followed by two other actions, with the three matters eventually consolidated and present operative complaint. The amended complaint alleges breaches of fiduciary duties, unjust enrichment, corporate waste and violations of Section 14(a) of the Securities Exchange Act of 1934 from at least 2015 through the present. Courts typically consider three factors in deciding whether a stay is appropriate: 1) whether the granting of a stay would cause the non-moving party to suffer undue prejudice from any delay or allow the moving party to gain a clear tactical advantage over the non-moving party; 2) whether a stay will simplify the issues for trial; and 3) whether discovery is complete and a trial date set. The Defendants' position is that a stay is appropriate as prosecution of this Derivative Action is antithetical to DaVita's defensive position in the Securities Action; as such, DaVita is forced to accuse its directors of violations of federal securities laws, while, at the same time, defending itself against the same allegations in the present action. The Plaintiffs allege that current prosecution of this Derivative Action will not jeopardize DaVita's defenses in the Securities Action since the Defendants do not demonstrate actual conflict as their arguments are speculative. The Plaintiffs contend that both cases are in their early stages, and therefore, it will be a while before any real risk of conflict presents itself, if at all. The court finds that staying this action for a limited period will simplify the issues in the instant case: specifically, it will relieve the tension on DaVita caused by alleging wrongful conduct in this matter while defending against substantially similar allegations of wrongful conduct in the Securities Action in the District of Colorado. Further, discovery has not begun in this district and no trial date has been set, while the motion to dismiss briefing in the Securities Action is well underway in the District of Colorado and is scheduled to be completed by June 28, 2018. A review of the challenged statements (allegations of patient steering and alleged false and misleading statements contained in SEC filings, press releases and investor conference calls) reveal that the core allegations of these two actions are substantially similar and center on allegedly materially false or misleading statements in Da Vita's financial statements and its failure to disclose such purported steering. Both actions focus on alleged violations of securities laws based on similar and often identical omissions relying on the same or similar documents filed with the SEC. The overlap in these two matters is significant. The Court finds that the Defendants have sufficiently established that a stay of a limited time period is justified. Accordingly, the Defendants' motion to stay is granted for the limited time period. A full-text copy of the District Court's June 25, 2018 Memorandum and Order is available at https://tinyurl.com/yctwk7rk from Leagle.com. Charles Blackburn, derivatively on behalf of Davita Inc., Plaintiff, represented by Seth D. Rigrodsky -- sdr@rl-legal.com -- Rigrodsky & Long, P.A., Brian D. Long -- bdl@rl-legal.com -- Rigrodsky & Long, P.A., Gina M. Serra -- gms-rl-legal.com -- Rigrodsky & Long, P.A. & Peter B. Andrews -- pandrews@andrewsspringer.com -- Andrews & Springer LLC. City of Warren Police and Fire Retirement System, Plaintiff, represented by Benny C. Goodman, III -- bennyg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Erik Luedeke -- eluedeke@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Peter B. Andrews -- pandrews@andrewsspringer.com -- Andrews & Springer LLC, Travis E. Downs -- travisd@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Craig J. Springer -- cspringer@andrewsspringer.com -- Andrews & Springer LLC & David M. Sborz -- dsborz@andrewsspringer.com -- Andrews & Springer LLC. Davita Inc., Nominal Defendant, represented by Jody Barillare -- jody.barillare@morganlewis.com -- Morgan Lewis & Bockius LLP, Karen Pieslak Pohlmann -- karen.pohlmann@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice, Laura Hughes McNally -- laura.mcnally@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice & Marc J. Sonnenfeld -- marc.sonnenfeld@morganlewis.com -- Morgan Lewis & Bockius LLP, pro hac vice. DEFENDERS INC: 3rd Cir. Affirms Remand of TCCWNA Suit ----------------------------------------------------- The United States Court of Appeals, Third Circuit, affirmed the District Court's Memorandum and Order granting Plaintiffs' Motion to Remand the case captioned NORMAN WALSH, on behalf of himself and others similarly situated, v. DEFENDERS, INC., d/b/a Protect Your Home; ADT SECURITY SERVICES, INC.; B&R RECOVERY LLC, Defenders, Inc.; ADT Security Services, Inc., n/k/a Tyco Integrated Security LLC; and ADT LLC, Appellants, No. 18-2156 (3rd Cir.) to state court. Walsh alleged that starting in December 2009 he and the class members purchased home security equipment and monitoring service from defendants and signed contracts that defendants prepared which contained illegal provisions relating to fees due on cancellation of the contracts. Walsh advances two claims based on the allegedly illegal provisions relating to fees due on cancellation of the contracts, one under New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) and the other under the New Jersey Consumer Fraud Act (NJCFA). The local controversy exception to a district court's class action jurisdiction under the Class Action Fairness Act (CAFA) requires a court to decline to exercise jurisdiction over a class action where more than two-thirds of the proposed plaintiff class members and at least one defendant, here ADT SSI-Tyco, are citizens of the state in which the suit was filed, here New Jersey, provided that the local defendant is one "from whom significant relief is sought by members of the plaintiff class and whose alleged conduct forms a significant basis for the claims asserted. ADT SSI-Tyco is a local defendant. In SmithKline Beecham, a Pennsylvania corporation, was sued, along with several related entities over allegations that it manufactured an injurious defective pharmaceutical drug. But before the case was filed, it had dissolved as a Pennsylvania corporation, domesticated as a Delaware corporation, and converted to a limited liability company called GSK LLC. When the plaintiffs, one of whom was a Pennsylvania citizen, subsequently brought the action in state court and defendants removed it to the district court, the plaintiffs claimed that the case should be remanded because SmithKline Beecham and one of the plaintiffs were Pennsylvania citizens and thus diversity of citizenship was absent. Plaintiffs claimed that the former SmithKline Beecham should be considered in the jurisdiction analysis as it was still a real party in interest because Pennsylvania statutory law preserved a dissolved corporation's interest in litigation against it. The Defendants claim that the Court should treat ADT SSI-Tyco like SmithKline Beecham, and, by extension, treat ADT LLC, which is not a New Jersey citizen, like GSK LLC. But the entities are in different positions. Unlike SmithKline Beecham, which dissolved completely and passed all of its liability to GSK LLC, ADT SSI-Tyco is an active entity that has not dissolved. It did not pass all of its liabilities to ADT LLC, to the end that ADT LLC has stepped into [its] shoes; rather, ADT SSI-Tyco is subject to liability in this case, depending on its outcome,8 and can defend the claims against it. Accordingly, SmithKline Beecham does not preclude us from holding that ADT SSI-Tyco is a real party in interest in this case. In sum, the Court agrees with the District Court's ultimate conclusion that ADT SSI-Tyco is a local defendant under CAFA. ADT SSI-Tyco has an interest in the litigation and the Court correctly took into account its citizenship for the purposes of determining subject matter jurisdiction. Other elements of the local controversy exception are satisfied. The Court now considers the two remaining disputed prongs of the local controversy exception: First, whether the proposed class seeks significant relief from ADT SSI-Tyco and second, whether ADT SSI-Tyco's conduct forms a significant basis for the claims asserted by the proposed plaintiff class. The Court has no difficulty in concluding that Walsh's amended complaint seeks significant relief from ADT SSI-Tyco. In evaluating whether the amended complaint seeks significant relief from a given defendant, the Court looks to the complaint rather than extrinsic materials such as those on which defendants rely, as the complaint is the best evidence of the relief that the plaintiffs seek. While the Court has observed that the significant basis prong "does not establish an absolute quantitative requirement for the number of class members asserting claims based on a local defendant's conduct, the number of claims involving the local defendant can be a helpful consideration in the analysis.” The Court agrees with the District Court that Walsh's evidence satisfies the required showing for the significant basis prong of the local controversy exception. Though a greater number of class members entered into alarm-services contracts with ADT LLC than with ADT SSI-Tyco, the local controversy exception does not require that the local defendant's conduct be the most significant conduct or that it predominates over claims against other defendants. Because of ADT SSI-Tyco's role with respect to the use of allegedly illegal provisions, and because over a third of the class members entered into contracts directly with ADT SSI-Tyco, it is clear that ADT SSI-Tyco's conduct forms a significant basis for the claims of the class. The Court concludes that the District Court did not err in remanding this action to the state court based on CAFA's local controversy exception to the exercise of its jurisdiction. Because ADT SSI-Tyco is a local defendant and the elements of the exception are otherwise satisfied, the Court will affirm the remand order of January 25, 2018, under consideration. A full-text copy of the Third Circuit’s July 2, 2018 Opinion is available at https://tinyurl.com/ycs2mwd6 from Leagle.com. Yongmoon Kim, Kim Law Firm. Henry P. Wolfe, The Wolf Law Firm, Counsel for Appellee. Charles C. Eblen, Gregory Wu, Shook, Hardy & Bacon, Counsel for Appellants. DENTSPLY SIRONA: Futuredontics Still Defends Olivares Class Suit ---------------------------------------------------------------- Futuredontics, Inc. continues to defend itself against a purported class action lawsuit brought by Henry Olivares and other similarly situated individuals, according to Dentsply Sirona Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. The lawsuit was filed on January 25, 2018, in the Superior Court of the State of California for the County of Los Angeles. The plaintiff class alleges several violations of the California wage and hours laws, including, but not limited to, failure to provide rest and meal breaks and the failure pay overtime. The Company has filed its answer to the complaint and the parties have initiated written and other discovery. The Company continues to vigorously defend against this matter. Dentsply Sirona is the world's largest manufacturer of professional dental products and technologies, with a 130-year history of innovation and service to the dental industry and patients worldwide. Dentsply Sirona develops, manufactures, and markets a comprehensive solutions offering including dental and oral health products as well as other consumable medical devices under a strong portfolio of world class brands. DIPLOMAT PHARMACY: Bid to Reconsider Michigan Court Order Pending ----------------------------------------------------------------- Diplomat Pharmacy, Inc. is still awaiting decision on its motion to reconsider the Court's prior ruling against the Company's bid to dismiss a putative class action complaint filed in the U.S. District Court for the Eastern District of Michigan against the Company and certain of its officers, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On November 10, 2016, a putative class action complaint was filed in the U.S. District Court for the Eastern District of Michigan against Diplomat Pharmacy, Inc. and certain officers of the Company. Following the appointment of lead plaintiffs and lead counsel, an amended complaint was filed on April 11, 2017. The amended complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with public filings made between February 29, 2016 and November 2, 2016 (the "potential class period"). The plaintiff seeks to represent a class of shareholders who purchased stock in the potential class period. The complaint seeks unspecified monetary damages and other relief. The Company filed a motion to dismiss the amended complaint on May 24, 2017. The court issued an order denying the Company's motion to dismiss on January 19, 2018. The Company filed a motion for reconsideration of its motion to dismiss on February 2, 2018. The Company said it believes the complaint and allegations to be without merit and intends to vigorously defend itself against the action. The Company is unable at this time to determine whether the outcome of the litigation would have a material impact on its results of operations, financial condition or cash flows. Diplomat Pharmacy, Inc. is the largest independent provider of specialty pharmacy services in the United States of America. The company is based in Flint, Michigan. DR PEPPER SNAPPLE: Underpays Sales Specialist, Aly et al. Claim --------------------------------------------------------------- SAID ALY, JULIO ULLOA, and RICHARD DICRESCENTO, individually and on behalf of all others similarly situated, Plaintiffs v. DR PEPPER SNAPPLE GROUP, INC.; THE AMERICAN BOTTLING COMPANY; and LARRY YOUNG, Defendants, Case No. 1:18-cv-04230 (E.D.N.Y., July 26, 2018) is an action against the Defendants for failure to pay overtime compensation, and comply with notice and record-keeping requirements. The Plaintiffs were employed by the Defendants as sales specialist. The Plaintiff Aly was employed by the Defendants from February 2014 to May 2018. The Plaintiff Ulloa was employed by the Defendants from November 2014to July 2107. The Plaintiff Discrescento was employed by the Defendants from February 2014 to May 2017. As of July 9, 2018, Dr Pepper Snapple Group, Inc. was acquired by Maple Parent Holdings Corp., in a reverse merger transaction. Dr Pepper Snapple Group, Inc. manufactures and distributes non-alcoholic beverages in the United States, Mexico and the Caribbean, and Canada. Dr Pepper Snapple Group, Inc. was incorporated in 2007 and is headquartered in Plano, Texas. [BN] The Plaintiff is represented by: Ariadne Panagopoulou, Esq. PARDALIS & NOHAVICKA, LLP 950 Third Avenue, 25th Floor New York, NY 10022 Telephone: (718) 777-0400 Facsimile: (718) 777-0599 Email: ari@pnlawyers.com DYNAVAX TECHNOLOGIES: Plaintiff Appeals from Nixed Securities Suit ------------------------------------------------------------------ The lead plaintiff in the recently dismissed consolidated suit styled In re Dynavax Technologies Securities Litigation has until October 11, 2018 to file an opening appellate brief, according to Dynavax Technologies Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On November 18, 2016, two substantially similar securities class action complaints were filed in the U.S. District Court for the Northern District of California against the Company and two of its executive officers, in Soontjens v. Dynavax Technologies Corporation et al., ("Soontjens") and Shumake v. Dynavax Technologies Corporation et al., ("Shumake"). The Soontjens complaint alleges that between March 10, 2014 and November 11, 2016, the Company and certain of its executive officers violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, in connection with statements related to HEPLISAV-B. The Shumake complaint alleges violations of the same statutes related to the same subject, but between January 7, 2016 and November 11, 2016. The plaintiffs in both actions are seeking an unspecified amount of damages and attorneys' fees and costs. On January 17, 2017, these two actions and all related actions that subsequently may be filed in, or transferred to, the District Court were consolidated into a single case entitled In re Dynavax Technologies Securities Litigation. On January 31, 2017, the court appointed lead plaintiff and lead counsel. Lead plaintiff filed a consolidated amended complaint on March 17, 2017. Defendants' filed a motion to dismiss the consolidated amended complaint on May 1, 2017. On September 12, 2017, the District Court granted Defendants' motion to dismiss, but gave lead plaintiff an opportunity to amend his complaint. On October 3, 2017, plaintiff filed a Second Amended Complaint. Defendants filed a motion to dismiss the Second Amended Complaint on November 3, 2017. A hearing on Defendants' motion to dismiss was set for January 23, 2018, but the hearing was vacated by the Court on January 18, 2018. On April 24, 2018, the Court reset the hearing on Defendants' motion to dismiss for May 8, 2018. On June 4, 2018, Defendants' motion to dismiss was granted and the case was dismissed with prejudice. On July 3, 2018, lead plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. Lead plaintiff's opening appellate brief is currently due on October 11, 2018. Dynavax Technologies Corporation is a clinical-stage immunotherapy company focused on leveraging the power of the body's innate and adaptive immune response through toll-like receptor ("TLR") stimulation. EATON CORP: SC Retirement Appeals Decision in Steamfitters Suit --------------------------------------------------------------- Plaintiff South Carolina Retirement Systems Group Trust filed an appeal from the District Court's memorandum opinion and order dated July 25, 2018, and judgment dated July 26, 2018, entered in the lawsuit styled Steamfitters Local 449 Pension Plan v. Eaton Corporation plc, Case No. 16-cv-5894, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit asserts claims under the Securities Exchange Act of 1934 on behalf of all persons or entities, who purchased or otherwise acquired the publicly traded securities of Eaton between Nov. 13, 2013, and July 28, 2014, inclusive. The complaint alleges that during the Class Period, the Defendants violated provisions of the Exchange Act by issuing false and misleading statements regarding the Company's unencumbered ability to divest its automobile-part manufacturing business. Eaton is an Ireland-based manufacturer of engineered products marketed to customers in the industrial, agricultural, construction, aerospace, and vehicle markets. For most of its 100 year history, Eaton primarily was a vehicle component manufacturer. Since 2008, however, the Company has been making strategic shifts away from its vehicle business, while growing its electrical component businesses. The appellate case is captioned as In re: Eaton Corp Securities, Case No. 18-2450, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant South Carolina Retirement Systems Group Trust is represented by: Thomas A. Dubbs, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 E-mail: tdubbs@labaton.com Defendants-Appellees Eaton Corporation PLC, Alexander Cutler and Richard Fearon are represented by: James E. Brandt, Esq. LATHAM & WATKINS LLP 885 3rd Avenue New York, NY 10022 Telephone: (212) 906-1200 E-mail: james.brandt@lw.com EHEALTH INC: Settlement of Calif. Suits Still Subject to Final OK ----------------------------------------------------------------- eHealth, Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018, that the settlement in the class action suits in California remains subject to final approval of the court after the notice has been sent to the class and after a hearing before the court. The settlement previously received the court's preliminary approval on April 23, 2018. The Company said, "On January 26, 2017, a purported class action lawsuit was filed against us in the Superior Court of the State of California, County of Santa Clara. The complaint alleges that we negligently failed to take necessary precautions required to protect from unauthorized disclosure of personally identifiable information contained on 2016 Form W-2s for current and former employees. The complaint purports to allege causes of action against us for negligence, violation of Section 17200 et seq. of the California Business & Professions Code, declaratory relief and breach of implied contract. The complaint seeks actual damages, punitive damages, statutory damages, costs, including experts' fees and attorneys' fees, pre-judgment and post-judgment interest as prescribed by law and equitable, injunctive and declaratory relief as appropriate. "In April 2017, an additional purported class action lawsuit was filed against us in the Superior Court of State of California, County of Santa Clara, relating to the same circumstances. The second complaint purports to allege causes of action against us for negligence, violation of California Customer Records Act (California Civil Code Section 1798.80 et seq.), violation of the California Confidentiality of Medical Information Act (California Civil Code Section 56 et seq.), invasion of privacy by public disclosure of private facts, breach of confidentiality and violation of the California Unfair Competition Law (California Business & Professions Code Section 17200 et seq.). "The causes of action for violations of the California Customer Records Act and the California Confidentiality of Medical Information Act were dismissed without prejudice. The second complaint seeks actual damages, statutory damages, restitution, disgorgement, equitable, injunctive and declaratory relief, costs, including experts' fees and attorneys' fees and costs of prosecuting the action, and pre-judgment and post-judgment interest as prescribed by law. "In July 2017, we entered into a binding settlement term sheet where we and the plaintiffs in each of the above-described cases agreed to enter into a settlement, pursuant to which we would receive a release of all claims that were or could have been alleged related to the unauthorized disclosure at issue in each of the cases. In exchange for the release, we agreed to (i) pay, subject to an aggregate cap of US$250,000, up to US$2,500 to each impacted individual for reasonable, documented out-of-pocket losses or expenses related to the data security incident; (ii) offer to individuals who signed up for identity theft protection that we offered at the time of the incident a one-year extension of the identity theft protection; (iii) offer to individuals who did not sign up for identity theft protection that we offered at the time of the incident three-years of identity theft protection; and (iv) not oppose a request by class counsel for attorneys' fees, costs and class representative enhancements of up to US$245,000 in the aggregate. "In December 2017, we entered into a joint stipulation for settlement of class action consistent with the settlement term sheet. The court entered an order preliminarily approving the settlement on April 23, 2018. As a result, notice of the settlement was sent to members of the class informing them of the settlement and the possible relief available to them thereunder. The settlement is subject to final approval of the court after the notice has been sent to the class and after a hearing before the court. "As of June 30, 2018, we maintained an accrual in our consolidated financial statements for estimated potential damages and other amounts we expect to be required to pay in connection with the matter." eHealth, Inc. is a leading private health insurance exchange for individuals, families and small businesses. The company is based in Mountain View, California. ENVISION HEALTHCARE: Bid to Drop Securities Class Suit Pending -------------------------------------------------------------- A motion to dismiss a consolidated securities class action complaint remains pending in the United States District Court for the Middle District of Tennessee, according to Envision Healthcare Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On August 4, 2017, a shareholder filed a purported class action in the United States District Court for the Middle District of Tennessee (M.D. Tenn.) against the Company and several of its officers and former officers alleging that the Company and the individual defendants violated the federal securities laws by making allegedly false and misleading statements and failing to disclose certain information. On September 29, 2017, and October 23, 2017, respectively, two purported class actions were filed in the same court making similar allegations. The Court subsequently consolidated these cases into a single action. Plaintiff filed a consolidated class action complaint (CAC) on January 26, 2018. In addition to the Company and certain current and former officers of the Company, the CAC also named Clayton Dubilier & Rice, LLC (CD&R), a former Envision investor, and certain CD&R affiliates. On April 3, 2018, defendants filed a motion to dismiss the CAC. That motion remains pending. On November 20, 2017, a shareholder filed a derivative action in the M.D. Tenn. against the Company and its Board. The plaintiff generally alleges that the Company and/or certain of its officers breached its fiduciary duties and violated the federal securities laws. On December 12, 2017, and December 15, 2017, respectively, two additional derivative actions were filed in the same court raising essentially the same allegations. Those derivative actions were consolidated on May 21, 2018. On August 2, 2018, the plaintiffs filed an amended complaint and added class action claims in connection with the Merger. In addition to the derivative claims, the amended complaint now includes claims for violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder based on various alleged omissions of material information from the Proxy Statement filed on July 9, 2018, in connection with the Merger. The amended complaint also alleges a claim against the individual defendants for breaches of fiduciary duties. It seeks, among other relief, to enjoin the Merger (or, in the alternative, an award of rescissory damages in the event the Merger is completed), and an award of costs and attorneys' fees. The Company said it believes these claims are without merit and intends to vigorously defend these actions. Given the preliminary stage of these matters, the Company is unable to estimate the amount of potential damages, if any, in any of these actions. Envision Healthcare Corporation is a provider of emergency medical services in the U.S. Envision operates an extensive emergency department, hospital, anesthesiology, radiology, and neonatology physician outsourcing segment. ENVISION HEALTHCARE: Faces Shareholder Suits over Merger Agreement ------------------------------------------------------------------ Envision Healthcare Corporation is facing three shareholder lawsuits, one of which is filed on behalf of a putative class of the Company's public shareholders, related to the Company's merger agreement with Enterprise Parent Holdings Inc., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On June 10, 2018, the Company entered into an Agreement and Plan of Merger (the Merger Agreement) with Enterprise Parent Holdings Inc., a Delaware corporation (Parent), and Enterprise Merger Sub Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent (Merger Sub), pursuant to which Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation (the Merger). In July 2018, three shareholder lawsuits were filed in connection with the Merger: Modi v. Envision Healthcare Corporation, et al., Case No. 3:18-cv-00648 (the Modi Action), filed in the United States District Court for the Middle District of Tennessee on behalf of a putative class of the Company's public shareholders; White v. Envision Healthcare Corporation, et al., Case No. 1:18-cv-01068 (the White Action), filed in the United States District Court for the District of Delaware by an individual purported shareholder; and Rosenblatt v. Envision Healthcare Corporation, et al., Case No. 1:18-cv-01077 (the Rosenblatt Action), also filed in the United States District Court for the District of Delaware on behalf of a putative class of the Company's public shareholders. The White and Rosenblatt Actions name as defendants the Company and each of the Company's directors individually; the Modi Action names as defendants the Company, each of the Company's directors individually, Parent and Merger Sub. All three actions allege violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder based on various alleged omissions of material information from the Proxy Statement filed on July 9, 2018, in connection with the Merger. The Modi Action also alleges a claim against the individual defendants for breach of fiduciary duties under Delaware law. All three actions seek, among other relief, to enjoin the Merger (or, in the alternative, an award of rescissory damages in the event that the Merger is completed), and an award of costs and attorneys' and expert fees. The Company said it believes these claims are without merit. Given the preliminary stage of these matters, the Company is unable to estimate the amount of potential damages, if any, in any of these actions. Envision Healthcare Corporation is a provider of emergency medical services in the U.S. Envision operates an extensive emergency department, hospital, anesthesiology, radiology, and neonatology physician outsourcing segment. ETSY INC: Consolidated Cervantes & Weiss Actions Still Pending -------------------------------------------------------------- The consolidated Cervantes and Weiss action filed against Etsy, Inc., among other defendants, is still pending, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On July 21, 2015, a purported securities class action complaint (Cervantes v. Dickerson, et.al., Case No. CIV 534768) was filed in the Superior Court of State of California, County of San Mateo against the Company, certain officers, directors, and underwriters. The complaint asserts violations of Sections 11 and 15 of the Securities Act. The complaint alleges misrepresentations in the Company's Registration Statement on Form S-1 and Prospectus with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. On December 7, 2015, the Company and the underwriter defendants moved to stay the Cervantes action on the grounds of forum non conveniens. On November 5, 2015, another purported securities class action complaint (Weiss v. Etsy et al., No. CIV 536123) was filed in the Superior Court of State of California, County of San Mateo. The Weiss complaint names as defendants the Company and the same officers, directors, and underwriters named in the Cervantes complaint, and also asserts violations of Sections 11 and 15 of the Securities Act based on allegedly false or misleading statements or omissions with respect to, among other things, merchandise for sale on the Company's website that may be counterfeit or constitute trademark or copyright infringement. On December 24, 2015, the court consolidated the Cervantes and Weiss actions. On February 3, 2016, the court granted the Company's motion to stay the consolidated actions. The Company and the named officers and directors intend to defend themselves vigorously against these consolidated actions. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of this matter and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. Etsy builds markets, services and economic opportunity for creative entrepreneurs. FALL RIVER: Settlement in A. Pintor FLSA Suit Has Prelim Approval ----------------------------------------------------------------- In the case, ALVIN PINTOR, Individually and on behalf of all others similarly situated, Plaintiff, v. FALL RIVER GROUP, INC., d/b/a Fall River Manufacturing Company, Defendant, Case No. 17-cv-865-pp (E.D. Wis.), Judge Pamela Pepper of the U.S. District Court for the Eastern District of Wisconsin (i) granted the parties' joint motion for preliminary approval of class and collective action settlement; and (ii) approved the parties' joint stipulation to certify a collective action. On May 25, 2018, the parties filed a joint motion for preliminary approval of class and collective action settlement. They attached their settlement agreement, and submitted a brief explaining why they believe the settlement is fair, reasonable, and adequate. The parties also applied the Rule 23(a) and (b) standards to the proposed Rule 23 class of all hourly employees who worked for the defendant between July of 2015 and December of 2016. Judge Pepper granted their joint motion for preliminary approval of class and collective action settlement, and joint stipulation to certify a collective action under 29 U.S.C. Section 216(b) and to certify a class action under Fed. R. Civ. P. 23. The Judge appointed Alvin Pintor as the class representative; and Hawks Quindel, S.C. as the class counsel. Having found that the parties' Notice of Class Action Settlement is the best notice practicable under the circumstances for distribution to all putative members; and constitutes valid, due, and sufficient notice for distribution to the class, the Judge ordered the Defense counsel to produce a class list to Class Counsel as a Microsoft Excel spreadsheet including each putative Class Member's name, street address, city, state, zip code, and phone number (with each piece of data as a separate column) within seven days of the date of the Order. The class counsel will mail the notice within seven days of the defense counsel providing a class list as set forth. The Putative Collective Class members may file a consent form within 30 days of the notice's mailing. Any individual who wishes to exclude himself or herself from the Rule 23 Class must opt out, per the instruction in the Notice of the Class Action Settlement, within 30 days of the mailing of that notice. Any Rule 23 Class member who wishes to object in any way to the proposed settlement agreement must file and serve those objections -- following the instructions in the Notice of Class Action Settlement -- together with copies of all papers in support of his or her position, no later than 30 days after the mailing of the Notice of Class Action Settlement. The Court had originally scheduled a fairness hearing for Aug. 1, 2018. Due to a conflict in its calendar, Judge Peper scheduled that fairness hearing to Sept. 18, 2018 at 2:30 p.m. The class counsel will file a motion for approval of attorneys' fees on or before a date at least 21 days prior to the fairness hearing. Any supplemental brief in support of final approval of the settlement agreement or in response to any objections to the application for attorney's fees will be filed at least seven days prior to the fairness hearing. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/HMZrr4 from Leagle.com. Alvin Pintor, Plaintiff, represented by Summer H. Murshid -- smurshid@hq-law.com -- Hawks Quindel SC, Timothy P. Maynard -- tmaynard@hq-law.com -- Hawks Quindel SC & Larry A. Johnson -- ljohnson@hq-law.com -- Hawks Quindel SC. Fall River Group Inc, doing business as Fall River Manufacturing Company, Defendant, represented by Elizabeth N. Larson, Michael Best & Friedrich LLP, Mitchell W. Quick -- mwquick@michaelbest.com -- Michael Best & Friedrich LLP & Bethany C. McCurdy -- bcmccurdy@michaelbest.com -- Michael Best & Friedrich LLP. FAMMA GROUP: Fails to Pay Proper Wages, Benavides Suit Claims ------------------------------------------------------------- JOSE CARLOS BENAVIDES, and JOSE DAVID BENAVIDES, individually and on behalf of all others similarly situated, Plaintiff v. FAMMA GROUP, INC.; JOE KAMARI; and DOES 1 through 100 inclusive, Defendants, Case No. BC715063 (Cal. Super., Los Angeles Cty., July 25, 2018) is an action against the Defendants for failure to pay overtime wages, provide meal breaks, provide rest breaks, pay wages upon termination, and reimburse business expense. The Plaintiffs were employed by the Defendants as an hourly-paid, and non-exempt employees in California. Famma Group Inc. was founded in 2012. The company's line of business includes the wholesale distribution of men's and boys' apparel and furnishings. [BN] The Plaintiff is represented by: Sarkis Sirmabekian, Esq. SIRMABEKIAN LAW FIRM PC 3435 Wilshire Blvd. Suite 1710 Los Angeles, CA 90010 Telephone: (818) 473-5003 Facsimile: (818) 476-5619 - and – Haig B. Kazandjian, Esq. HAIG B. KAZANDJIAN LAWYERS APC 801 N. Brand Blvd. Suite 970 Glendale, CA 91203 Telephone: (818) 696-2306 Facsimile: (818) 696-2307 FEDERAL SIGNAL: Firefighters' Hearing Loss Lawsuits Still Ongoing ----------------------------------------------------------------- Federal Signal Corporation continues to defend itself in Hearing Loss Litigation, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company has been sued for monetary damages by firefighters who claim that exposure to the Company's sirens has impaired their hearing and that the sirens are therefore defective. There were 33 cases filed during the period of 1999 through 2004, involving a total of 2,443 plaintiffs, in the Circuit Court of Cook County, Illinois. These cases involved more than 1,800 firefighter plaintiffs from locations outside of Chicago. In 2009, six additional cases were filed in Cook County, involving 299 Pennsylvania firefighter plaintiffs. During 2013, another case was filed in Cook County involving 74 Pennsylvania firefighter plaintiffs. The trial of the first 27 of these plaintiffs' claims occurred in 2008, whereby a Cook County jury returned a unanimous verdict in favor of the Company. An additional 40 Chicago firefighter plaintiffs were selected for trial in 2009. Plaintiffs' counsel later moved to reduce the number of plaintiffs from 40 to nine. The trial for these nine plaintiffs concluded with a verdict against the Company and for the plaintiffs in varying amounts totaling US$0.4 million. The Company appealed this verdict. On September 13, 2012, the Illinois Appellate Court rejected this appeal. The Company thereafter filed a petition for rehearing with the Illinois Appellate Court, which was denied on February 7, 2013. The Company sought further review by filing a petition for leave to appeal with the Illinois Supreme Court on March 14, 2013. On May 29, 2013, the Illinois Supreme Court issued a summary order declining to accept review of this case. On July 1, 2013, the Company satisfied the judgments entered for these plaintiffs, which has resulted in final dismissal of these cases. A third consolidated trial involving eight Chicago firefighter plaintiffs occurred during November 2011. The jury returned a unanimous verdict in favor of the Company at the conclusion of this trial. Following this trial, on March 12, 2012 the trial court entered an order certifying a class of the remaining Chicago Fire Department firefighter plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. The Company petitioned the Illinois Appellate Court for interlocutory appeal of this ruling. On May 17, 2012, the Illinois Appellate Court accepted the Company's petition. On June 8, 2012, plaintiffs moved to dismiss the appeal, agreeing with the Company that the trial court had erred in certifying a class action trial in this matter. Pursuant to plaintiffs' motion, the Illinois Appellate Court reversed the trial court's certification order. Thereafter, the trial court scheduled a fourth consolidated trial involving three firefighter plaintiffs, which began in December 2012. Prior to the start of this trial, the claims of two of the three firefighter plaintiffs were dismissed. On December 17, 2012, the jury entered a complete defense verdict for the Company. Following this defense verdict, plaintiffs again moved to certify a class of Chicago Fire Department plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. Over the Company's objection, the trial court granted plaintiffs' motion for class certification on March 11, 2013 and scheduled a class action trial to begin on June 10, 2013. The Company filed a petition for review with the Illinois Appellate Court on March 29, 2013 seeking reversal of the class certification order. On June 25, 2014, a unanimous three-judge panel of the First District Illinois Appellate Court issued its opinion reversing the class certification order of the trial court. Specifically, the Appellate Court determined that the trial court's ruling failed to satisfy the class-action requirements that the common issues of the firefighters' claims predominate over the individual issues and that there is an adequate representative for the class. During a status hearing on October 8, 2014, plaintiffs represented to the Court that they would again seek to certify a class of firefighters on the issue of whether the Company's sirens were defective and unreasonably dangerous. On January 12, 2015, plaintiffs filed motions to amend their complaints to add class action allegations with respect to Chicago firefighter plaintiffs as well as the approximately 1,800 firefighter plaintiffs from locations outside of Chicago. On March 11, 2015, the trial court granted plaintiff's motions to amend their complaints. On April 24, 2015, the cases were transferred to Cook County chancery court, which will decide all class certification issues. On March 23, 2018, plaintiffs filed a motion to certify as a class all firefighters from the Chicago Fire Department who have filed lawsuits in this matter. The Company has served discovery upon plaintiffs related to this motion and intends to continue its objections to any attempt at certification. A further status hearing on class certification issues has been scheduled for September 18, 2018. Federal Signal Corporation is a global manufacturer and supplier of vehicles and equipment for maintenance and infrastructure end-markets, including sewer cleaners, vacuum trucks, street sweepers, dump truck bodies and trailers; and safety, security and communication equipment, such as lights, sirens and warning systems. The company is based in Oak Brook, Illinois. FINANCIAL CREDIT: Solis Sues over Debt Collection Practices ----------------------------------------------------------- Suzanne Acosta Solis, individually and on behalf of all others similarly situated, Plaintiff v. Financial Credit Service, Inc., and John Does 1-25, Defendants, Case No. 1:18-cv-625 (W.D. Tex., July 26, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Financial Credit Service, Inc. is a debt buyer and debt collector and purchases outstanding debt from major banks and credit card companies. They also handle local retail collections. FCS also does business as Asset Recovery Associates, Inc. [BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 E-mail: ysaks@steinsakslegal.com FLOWERS FOODS: Court Won't Review Dismissal of M. Abugeith's Suit ----------------------------------------------------------------- In the case, MAJDI ABUGEITH and JIMMY BREWER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF HOUSTON, LLC, Defendants, Civil Action No. H-17-2934 (S.D. Tex.), Judge Sim Lake of the U.S. District Court for the Southern District of Texas, Houston Division, denied both of the Plaintiffs' (i) Emergency Motion for Reconsideration and Motion for Sanctions ("Motion for Reconsideration"); and (ii) Motion for Sanctions, Temporary Restraining Order, Temporary and Permanent Injunction and and Motion for Court Issued Notice to Current and Putative Plaintiffs of Improper Actions by Defendants ("Motion for Sanctions"). Abugeith and Jimmy Brewer, on behalf of themselves and other similarly situated individuals, sued the Defendants under the Fair Labor Standards Act ("FLSA"). The Plaintiffs executed a distributor agreement and signed Flowers Baking Co. of Houston, LLC Amendment to Distributor Agreement -- which included a mandatory arbitration clause -- and they each signed an Arbitration Agreement contained in Exhibit 2 of the Amendment. The Plaintiffs filed the action on Sept. 29, 2017, seeking overtime wages, liquidated damages, attorney's fees, and costs under the FLSA on behalf of themselves and a putative class of distributors. The Defendants filed a motion pursuant to Federal Rules of Civil Procedure 12(b) (1), 12(b) (3), and 12(b) (6) seeking an order dismissing the lawsuit and requiring the Plaintiffs to arbitrate their claims withthe Defendants. On May 15, 2018, the Court granted the Defendants' Motion to Dismiss. Because it concluded that the Arbitration Agreement and the delegation clause and class-action waiver within the Arbitration Agreement were enforceable, the Court dismissed the action and compelled the Plaintiffs to arbitrate the dispute individually. On June 12, 2018, the Plaintiffs filed their Motion for Reconsideration and Motion for Sanctions urging the court to reconsider its Memorandum Opinion and Order granting the Defendant's Motion to Dismiss, to impose sanctions against the Defendants for improper conduct, and to issue a temporary restraining order and a preliminary injunction. They argue that recently discovered information and the need to prevent manifest injustice require that the Court reconsiders its order compelling arbitration and dismissing the action. The Defendants filed a response on June 26, 2018, opposing the Plaintiffs' motion. They respond that the Plaintiffs fail to satisfy the requirements of Rule 59 (e). Judge Lake finds that the Plaintiffs have not attached their own affidavits and have not presented any other evidence that they were personally harassed, coerced, or intimidated by these tactics causing them to unwillingly sign the Amendment and the Arbitration Agreement. Moreover, even if they were newly discovered evidence, none of the attached affidavits mention Plaintiffs Abugeith and Brewer. Because the Plaintiffs have provided no newly discovered evidence establishing that they did not voluntarily sign the Amendment or the Arbitration Agreement, the Judge concluded that the Plaintiffs are not entitled to Rule 59(e) relief. The Judge also finds that the Defendants have not impaired the Plaintiffs' ability to seek relief under the FLSA because the Plaintiffs brought the action and may now seek complete relief in arbitration. The Defendants have not deprived them of the constitutional right of access to the courts because they voluntarily agreed to arbitrate their claims. Moreover, he says, the Plaintiffs have provided no evidence that the Defendants took any retaliatory actions against them for bringing the action. Therefore, there is no substantial risk that irreparable harm will occur and any injunctive relief as to these Plaintiffs is not appropriate. Because Plaintiffs have failed to provide evidence that the Defendants directed any sanctionable conduct towards them or impaired the Plaintiffs' right to relief, Judge Lake denied the Plaintiffs' Motion for Sanctions. A full-text copy of the Court's July 11, 2018 Memorandum Opinion and Order is available at https://is.gd/z3bSqE from Leagle.com. Majdi Abugeith & Jimmy Brewer, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, represented by Alfonso Kennard, Jr. -- alfonso.kennard@kennardlaw.com -- KENNARD RICHARD PC. Flowers Foods, Inc & Flowers Baking Co. of Houston, LLC, Defendants, represented by Michael D. Mitchell -- michael.mitchell@ogletree.com -- Ogletree Deakins et al & Stephen Eric Hart -- stephen.hart@ogletree.com -- Ogletree Deakins et al. G.O.O.D. BUSINESS: Lambert Sues over Edipure Product Mislabeling ---------------------------------------------------------------- TINA LAMBERT, individually and on behalf of all others similarly situated, Plaintiff v. G.O.O.D. BUSINESS COOPERATIVE, INC.; SCOTT BERGIN d/b/a EDIPURE; EDIPURE; and DOES 1 through 100, inclusive, Defendants, Case No. 37-2018-00037131-CU-BT-CTL (Cal. Super., San Diego Cty., July 24, 2018) alleges violation of the Consumer Legal Remedies Act. According to the complaint, the EdiPure Edibles packaging was prominently marked with 25mg THC. The product packaging was also marked with 5mg per pc. Per laboratory results, the test yielded significantly less THC in the Edipure Edibles than advertised. Laboratory results found the Edipure Edible tested contained merely 0.29mg of THC per piece, contrary to the 5mg of THC per piece advertised on the packaging, confirming that EdiPure Edibles contain significantly lower levels of THC than falsely advertise. G.O.O.D. Business Cooperative, Inc. is a California corporation doing business in San Diego, California. [BN] The Plaintiff is represented by: John H. Donroli, Esq. Raquel S. Mor, Esq. DONBOLI LAW GROUP, APC 11682 El Camino Real, Suite 100 San Diego, CA 92130 Telephone: (858) 252-2015 Facsimile: (858) 724-1490 GENERAL MOTORS: Doucet Sues over Defective 2011 Chevrolet Equinox ----------------------------------------------------------------- LORENA DOUCET, individually and on behalf of all others similarly situated, Plaintiff v. GENERAL MOTORS, LLC; and DOES 1 through 10, inclusive, Defendants, Case No. BC714943 (Cal. Super., Los Angeles Cty., July 24, 2018) alleges that the Defendants wrongfully manufacture, distribute and sell a defective motor vehicle. According to the complaint, the 2011 Chevrolet Equinox manufactured by the Defendants suffered defects such as excessive oil consumption, premature failure of the engine balance chains, premature failure of the fuel pump plunger seal, fuel leaks into the crankcase, rough running of the engine, loss of power, rough idle, and stalling. The motor vehicle defects are dangerous to consumers as they can cause engine failure while the motor vehicle is in operation at any time and under any driving condition or speed, thereby exposing the drivers, passengers, and third persons to serious risk of accident and injury. General Motors LLC was incorporated in 2009 and is based in Wilmington, Delaware. General Motors LLC operates as a subsidiary of General Motors Company. [BN] The Plaintiff is represented by: Tionna Dolin, Esq. Daniel Tai, Esq. STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattorney.com dtai@slpattorney.com GEO GROUP: Seeks 9th Circuit Review of Ruling in Chen Suit ---------------------------------------------------------- Defendant The Geo Group, Inc., filed an appeal from a court ruling in the lawsuit entitled CHAO CHEN, individually and on behalf of those similarly situated v. THE GEO GROUP, INC., Case No. 3:17-cv-05769-RJB, in the U.S. District Court for the Western District of Washington, Tacoma. The appellate case is captioned as Ugochukwu Nwauzor, et al. v. The Geo Group, Inc., Case No. 18-80095, in the United States Court of Appeals for the Ninth Circuit. As reported in the Class Action Reporter on August 2, 2018, Judge Robert J. Bryan granted the Plaintiff's Motion for Leave to Amend Class Action Complaint. Mr. Chen seeks leave to amend his class action complaint to substitute three individuals as named Plaintiffs and to withdraw him as a named Plaintiff. The proposed First Amended Class Action Complaint for Damages introduces as the Plaintiffs three individuals: Ugochukwu Goodluck Nwauzor, Fernando Aguirre-Urbina, and Fabiola Alicia Camorlinga Cruz. The second version of the First Amended Class Action Complaint for Damages, filed in the Plaintiff's Reply, drops Ms. Cruz as a named Plaintiff. For purposes of considering Plaintiff's motion, the Court will construe the second version as the operative proposed complaint. The Defendant is prejudiced, it argues, because the proposed Plaintiffs cannot survive a motion for class certification and should not be permitted to be used as placeholders. Judge Bryan finds this as an argument on the merits of class certification, which the Court has not reached. Whether the proposed Plaintiffs can survive a motion for class certification remains unresolved. He finds only minimal prejudice to the Defendant. He says he may look askance at future efforts to amend the named Plaintiffs, but presently, the Plaintiff has made the threshold showing that the amendment is offered to reach the merits of the case.[BN] Plaintiffs-Respondents UGOCHUKWU GOODLUCK NWAUZOR and FERNANDO AGUIRRE-URBINA, individually and on behalf of all those similarly situated, are represented by: Adam Jared Berger, Esq. Lindsay L. Halm, Esq. SCHROETER GOLDMARK & BENDER 810 Third Avenue, Suite 500 Seattle, WA 98104 Telephone: (206) 622-8000 E-mail: berger@sgb-law.com halm@sgb-law.com - and - Robert Andrew Free, Esq. LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 Telephone: (844) 321-3221 E-mail: andrew@immigrantcivilrights.com - and - Meena Pallipamu Menter, Esq. MENTER IMMIGRATION LAW PLLC 8201 164th Avenue NE, Suite 200 Redmond, WA 98052 Telephone: (206) 419-7332 E-mail: meena@mmenterlaw.com - and - Devin T. Theriot-Orr, Esq. SUNBIRD LAW, PLLC 1001 Fourth Avenue, Suite 3200 Seattle, WA 98154 Telephone: (206) 962-5052 E-mail: devin@sunbird.law Defendant-Petitioner THE GEO-GROUP, INC., a Florida corporation, is represented by: Mark Emery, Esq. NORTON ROSE FULBRIGHT US LLP 799 9th Street, NW, Suite 1000 Washington, DC 20001-4501 Telephone: (202) 662-0210 E-mail: mark.emery@nortonrosefulbright.com GLASS FAMILY: Fails to Pay OT to Delivery Drivers, Begley Claims ---------------------------------------------------------------- PAUL BEGLEY, individually and on behalf of similarly situated persons, Plaintiff v. GLASS FAMILY PIZZA d/b/a CINCY DOMINOS, LLC; and JOHN GLASS, Defendants, Case No. 2:18-cv-00124-DLB-CJS (E.D. Ky., July 17, 2018) seeks to recover unpaid minimum wages and overtime hours under the Fair Labor Standards Act. Mr. Begley was employed by the Defendants as delivery driver. Glass Family Pizza, Inc. was founded in 1996. The company's line of business includes the retail sale of prepared foods and drinks for on-premise consumption. [BN] The Plaintiff is represented by: David O'Brien Suetholz, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 515 Park Avenue Louisville, KY 40208 Telephone: 502-636-4333 E-mail: davids@bsjfirm.com - and - J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Ste. 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com - and - J. Forester, Esq. Matthew Haynie, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 Facsimile: (214) 346-5909 E-mail: www.foresterhaynie.com GLOBAL TELLINK: Seeks 3rd Cir. Review of Ruling in James Suit ------------------------------------------------------------- Defendants Global TelLink Corp. and DSI ITI LLC filed an appeal from a court ruling in the lawsuit entitled Bobbie James, et al. v. Global TelLink Corp., et al., Case No. 2-13-cv-04989, in the U.S. District Court for the District of New Jersey. As reported in the Class Action Reporter on August 15, 2018, the Hon. William J. Martini entered an order on August 6, 2018, certifying a class of: "all persons of the United States who, between 2006 and 2016, were incarcerated in a New Jersey prison or correctional institution and who used the phone system provided by Defendants, or who established an advance pay account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey, excluding Essex County prior to June 2010, or persons receiving calls from persons incarcerated in Essex County prior to June 2011." The appellate case is captioned as Bobbie James, et al. v. Global TelLink Corp., et al., Case No. 18-8043, in the United States Court of Appeals for the Third Circuit. The briefing schedule in the Appellate Case states that response, if any, to the Petitioners' Motion to Seal Certain Portions of the Petition for Permission to Appeal is due on August 30, 2018.[BN] Plaintiffs-Respondents BOBBIE JAMES, CRYSTAL GIBSON, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY and DR. JOHN F. CROW, on behalf of themselves and all others similarly situated, are represented by: James E. Cecchi, Esq. Lindsey H. Taylor, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO PC 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 E-mail: JCecchi@CarellaByrne.com LTaylor@carellabyrne.com - and - Joseph H. Meltzer, Esq. Peter A. Muhic, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 E-mail: jmeltzer@ktmc.com pmuhic@ktmc.com - and - James A. Plaisted, Esq. Lin C. Solomon, Esq. Justin P. Walder, Esq. PASHMAN STEIN WALDER HAYDEN 21 Main Street, Suite 200 Hackensack, NJ 07601 Telephone: (973) 992-5300 E-mail: jplaisted@pashmanstein.com lsolomon@pashmanstein.com jpwalder@pashmanstein.com Defendants-Petitioners GLOBAL TELLINK CORP. and DSI ITI LLC are represented by: Robert J. Herrington, Esq. GREENBERG TRAURIG LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7816 E-mail: herringtonr@gtlaw.com - and - Aaron Van Nostrand, Esq. GREENBERG TRAURIG LLP 500 Campus Drive Florham Park, NJ 07932 Telephone: (973) 360-7900 E-mail: vannostranda@gtlaw.com - and - T. Dietrich Hill, Esq. Derek T. Ho, Esq. Matthew R. Huppert, Esq. Benjamin Softness, Esq. KELLOGG HANSEN TODD FIGEL & FREDERICK PLLC 1615 M Street NW, Suite 400 Washington, DC 20036 Telephone: (202) 326-7990 E-mail: dhill@kellogghansen.com dho@kellogghansen.com mhuppert@kellogghansen.com bsoftness@kellogghansen.com GLV INC: Loses Bid to Dismiss L. Mullen's IPFSA Suit ---------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, denied Defendant GLV, Inc., Ricky Butler, and Cheryl Butler’s Motion to Dismiss the case captioned LAURA MULLEN, individually and on behalf of others similarly situated, Plaintiff, v. GLV, INC., RICKY BUTLER, and CHERYL BUTLER, Defendants, Case No. 18 C 1465 (N.D. Ill.). Mullen asserts six claims in her complaint: 1. Count 1 is a claim under the Illinois Physical Fitness Services Act (IPFSA), 815 ILCS 645/11. 2. Count 2 is also a claim under the IPFSA. 3. Count 3 is a claim under the Illinois Consumer Fraud Act (ICFA), which permits suits by consumers for injuries caused by unfair or deceptive acts and practices, 815 ILCS 505/10a; it is essentially parallel to Count 1. 4. Count 4 is a common law fraud claim. 5. Count 5 is a common law fraudulent concealment claim; again, these claims are essentially parallel to Count 1. 6. Count 6 is a claim of unjust enrichment. Claims based on fraud, fraudulent concealment, and deceptive practices Illinois law requires a plaintiff to allege the following five elements to state a claim for fraud: (1) a false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and (5) plaintiff's damages resulting from reliance on the statement. The Court finds that Mullen's fraudulent concealment allegations are sufficient. The Court overrules the defendants' contention that Mullen has failed to adequately allege that defendants had a duty to disclose. Under Illinois law, a defendant may have a duty to speak if, among other things, it makes a statement while holding back facts that would show it is a half-truth, or when the defendant's silence is accompanied by deceptive conduct. Mullen's allegations regarding the defendants' statements about having the highest quality coaches and providing a safe environment suffice as allegations of misleading half-truths, and her allegations of active concealment, including an allegedly misleading manifesto posted by the defendants denies the allegations about Butler and the defendants' alleged attempts to silence accusers, qualify for present purposes as deceptive conduct giving rise to a duty to speak. In addition, these allegations clearly meet the requirements of Rule 9(b). For these reasons, Counts 4 (fraud) and 5 (fraudulent concealment) each state a claim upon which relief may be granted. And for the same reasons, Mullen's other deception-based claims, Counts 1 (IPFSA) and 3 (ICFA) each state a claim IPFSA contract claim. In Count 2, Mullen alleges that defendants violated provisions of the IPFSA requiring a written contract, a copy of which must be given to the customer, and requiring all contracts to have a term permitting the customer to cancel within three days after signing. The Defendants argue that Mullen has failed to attach a contract to her complaint, but that would be a bit odd, seeing as how she contends the defendants violated a provision of IPFSA requiring a copy of a contract with a physical fitness center to be given to the customer. Count 2 may not be the strongest of Mullen's claims on its face, but she has adequately alleged a violation of sections 4 and 6 of the IPFSA. The questions of what damages are properly recoverable or whether Mullen can actually prove harm from the violation(s) are premature at this stage of the litigation. Unjust enrichment claim In their opening memorandum, the defendants seek dismissal of Mullen's unjust enrichment claim on the ground that unjust enrichment is not a separate cause of action under Illinois law. The Court finds the contention incorrect. Mullen has also adequately alleged that defendants benefitted to her detriment, by obtaining fees from her when she enrolled her daughter in defendants' programs. Accordingly, the Court denies the defendants' motion to dismiss and directs the defendants to answer the complaint. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/y7zm7fgu from Leagle.com. Laura Mullen, Individually and on behalf of all others similarly situated, Plaintiff, represented by Alfred Kirkland Murray, II – amurray@edelson.com -- Edelson PC, Eve Lynn J. Rapp – erapp@edelson.com -- Edelson P.C., Jay Edelson – jedelson@edelson.com -- Edelson PC, Sydney M. Janzen – sjanzen@edelson.com -- Edelson Pc & Christopher Lillard Dore – cdore@edelson.com -- Edelson PC. GLV, Inc, an Illinois corporation, Ricky Butler, an Individual & Cheryl Butler, an Individual, Defendants, represented by Donald John Angelini, Jr., Angelini & Ori, LLC & Danielle C. D'ambrose, Angelini & Ori, Llc. GURSTEL LAW: Borges Sues over Debt Collection Practices ------------------------------------------------------- THOMAS BORGES, JR., individually and on behalf of all others similarly situated, Plaintiff v. GURSTEL LAW FIRM, P.C. f/k/a GURSTEL CHARGO, P.A.; and CAVALRY SPV I, LLC, Defendants, Case No. 8:18-cv-00344-LSC-MDN (D. Neb., July 18, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Gurstel Law Firm, P.C. f/k/a Gurstel Chargo, P.A. is a law firm engaged in the business of collecting debts due or alleged to be due to others across the state of Nebraska, doing business from locations in Omaha, Nebraska. [BN] The Plaintiff is represented by: Pamela A. Car, Esq. William L. Reinbrecht, Esq. CAR & REINBRECHT, P.C., LLO 2120 S. 72 nd Street, Suite 1125 Omaha, NE 68124 Telephone: (402) 391-8484 Facsimile: (402) 391-1103 E-mail: pacar@cox.net - and - O. Randolph Bragg, Esq. HORWITZ, HORWITZ & ASSOC. 25 East Washington St., Suite 900 Chicago, IL 60602 Telephone: (312) 372-8822 Facsimile: (312) 372-1673 E-mail: rand@horwitzlaw.com HUNTINGTON BANCSHARES: Protective Order in Majestic Partly OK'd --------------------------------------------------------------- In the case, MAJESTIC BUILDING MAINTENANCE, INC., Plaintiff, v. HUNTINGTON BANCSHARES INCORPORATED, Defendant, Civil Action No. 2:15-cv-3023 (S.D. Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, (i) denied Majestic's Motion for Leave to File a Second Amended Complaint; and (ii) granted in part and denied in part Huntington's Motion for Protective Order, which seeks to prevent or limit the Plaintiff's deposition topics for Huntington's corporate representative. Majestic initiated the matter as a putative class action against Huntington on Nov. 20, 2015. At that time, Majestic alleged that Huntington violated Ohio's version of the Uniform Commercial Code ("UCC") by failing to refund monies paid out of Majestic's business checking account on four unauthorized checks. In November 2010, Majestic opened a business checking account with Huntington. The complaint alleges that Majestic received a Master Services Agreement at the time the account was opened which contains a section of Standard Terms of Conditions and a section of Rules and Regulations for Business Accounts. Luther McNeil is Majestic's President and the only authorized signatory on the account. On Nov. 24, 2014, McNeil was reviewing the account online and noticed that unauthorized checks had been cleared from the account on that same day. Upon examination, McNeil found that four checks totaling $3,973.96 had been debited from the account. Each check contained a forgery of his signature and each one was made payable to an individual who was unknown to McNeil or Majestic. McNeil immediately contacted Huntington about the forged checks and filled out paperwork for a fraud complaint and a request for reimbursement. Huntington denied his request for reimbursement on the grounds that he had not enrolled in Huntington's Check Positive Pay/Reverse Positive Pay service. Following Huntington's denial of the request for reimbursement, Majestic filed the action. Majestic alleges that Huntington violated Section 4-401 of the U.C.C., which provides for the default rule that a customer is not liable for a check which is not properly payable. It further alleges that Huntington violated Section 4-103(a) of the U.C.C. because it breached its duty of good faith and ordinary care by attempting to contractually shift liability for forged checks to a customer. The complaint also contains class allegations. Majestic seeks to represent a six-state class of Huntington business accounts holders who suffered a financial loss from Huntington making payments out of their accounts for items which were not properly payable. The complaint alleges that Huntington has violated the U.C.C. by attempting to shift liability for unauthorized checks upon business account customers unless they enroll in Check Positive Pay, Reverse Positive Pay or a similar fraud detection service. The Court granted Huntington's Motion to Dismiss, explaining that several provisions of the Master Services Agreement plainly reaffirmed Huntington's duties to act in good faith and exercise ordinary care. Majestic appealed, and the Sixth Circuit reversed the Order of dismissal and remanded the case with instructions to allow the Plaintiff an opportunity to amend the complaint and conduct discovery. The Court gave Majestic until Dec. 15, 2017, to amend the Complaint in the matter. On that date, Majestic filed its First Amended Complaint. The First Amended Complaint contains nearly identical factual allegations as the initial complaint but changed the putative class definition to include all Huntington business account holders who experienced a financial loss due to Huntington paying instrument(s), where Huntington was notified that those instrument(s) were improperly paid. Roughly six months later, on June 7, 2018, Majestic moved for leave to file a Second Amended Complaint, asserting that it did not wish to substantively change any of the Plaintiff's claims, but rather seeks to clarify Majestic's class definition. It now seeks to define the class as all Huntington account holders, as opposed to just business account holders, that (1) have a bank account subject to a provision that disclaims liability for transactions on the account if the customer does not avail themselves of products purportedly designed to discover or prevent unauthorized transactions; (2) where the customer did not avail themselves of any of the product(s) available under the Provision; (3) where Huntington paid the instrument(s) from the customer's account; and (4) where it was later learned that the instrument(s) were not properly payable. Huntington opposes the amendment, arguing that by eliminating the word "business" from the proposed Second Amended Complaint, Majestic seeks to expand the class substantially with only ten weeks remaining in discovery. On June 28, 2018, Majestic filed a Reply. Majestic also seeks corporate testimony from Huntington on 52 topics. Despite efforts to narrow the scope of the deposition, the parties reached an impasse. Consequently, Huntington filed a Motion for Protective Order on April 26, 2018, seeking to eliminate or limit various categories of deposition topics. In moving for a protective order, Huntington also seeks its reasonable fees and costs. Moreover, Huntington asked the Court to prevent the deposition of its corporate representative from proceeding until a ruling was made on the protective order. The Court, noting that the deposition at issue was scheduled for May 4, 2018, expedited briefing and ordered the deposition not to proceed until after the Court ruled on the pending Motion for Protective Order. Consistent with the expedited schedule, Majestic filed a Response in Opposition, and Huntington filed a Reply. Magistrate Judge Jolson finds that Majestic has not established the good cause required for leave to amend under Rule 16(b), and she needs not undertake any analysis under Rule 15(a). For those reasons, she denied Majestic's Motion for Leave to File a Second Amended Complaint. The Magistrate Judge granted in part and denied in part Huntington's request for a protective order as to Topic 1. Specifically, Majestic may ask Huntington's 30(b)(6) deponent about its Answer and any affirmative defenses. She granted Huntington's request for a protective order as to Topic 3. Majestic may, however, question Huntington's 30(b)(6) deponent about witnesses it identifies as particularly relevant, as long as those witnesses are communicated to Huntington at least seven days prior to the deposition. She finds that because Topic 2 does not describe the intended topic with reasonable particularity, it will be limited to Huntington's proposal -- all communications related to the case. She granted Huntington's request for a protective order as to Topic 2. She also finds Topic 4 to be overbroad and lacking reasonable particularity. Accordingly, she granted Huntington's request for a protective order as to Topic 4. Majestic may, however, identify a reasonable number of documents it seeks to have authenticated in the deposition, if those specific documents are identified for Huntington at least seven days prior to the deposition. The Magistrate Judge directed the parties to meet and confer on deposition topics that concern the general number of accounts that fit into each category described in Topics 32, 36, and 37. The meet and conferral should occur at least seven days prior to the deposition. Based upon Majestic's change of position, she denied as moot Huntington's request for a protective order as to Topics 32, 36, and 37. To the extent Topics 19, 30, 31, 32, 33, 34, 35, and 36 seek specific names and account numbers, Huntington's request for a protective order is granted. Majestic may, however, inquire about the total number of accounts that exist for each category. The Magistrate Judge agrees with Majestic and finds that allowing inquiry into all types of fraud is still proportional to the needs of the case. Thus, in the topics at issue, the term "Fraud" will have the same meaning assigned by Huntington in its Rule and Regulations for Business Accounts. She denied Huntington's request for a protective order to limit the definition of the term "Fraud" in Topics 5, 6, 7, 10, 12, 14, 16, 18, 26, 29, 32, 33, 34, 35, 36, 37, and 38. She granted Huntington's request for a protective order limiting the timeframe in Topics 9, 14, 16, and 17 from Jan. 1, 2012 to Dec. 31, 2017. Majestic may, however, serve written discovery on any relevant policy changes. It is unclear what type of "legal issues" Majestic might ask Huntington's representative about relating to Topic 1, but for the reasons explained above, questions involving legal implications are improper. However, consistent with her reasoning, to the extent the questions on Topic 1 are related to the factual bases of Huntington's affirmative defenses, those questions are permissible. Finally, she denied Huntington's request as to Topic 46, and its representative must be prepared to answer questions on this topic. As to Huntington's Request for Fees and Costs, the Magistrate Judge does not, in her discretion, find that an award of attorney's fees is warranted. Among other reasons, she comes to this conclusion because Huntington's Motion is granted only in part. Thus, she denied Huntington's request for reasonable fees and costs in seeking a protective order. Huntington is ordered to produce a corporate representative or corporate representatives to appear and testify on various topics in accordance with the limitations described in the Order. The parties are further ordered to meet and confer over the next seven days to set an appropriate and convenient date and time for the deposition. A full-text copy of the Court's July 10, 2018 Opinion and Order is available at https://is.gd/oP1DxN from Leagle.com. Majestic Building Maintenance, Inc., Plaintiff, represented by Sean M. Kohl -- sean@doucet.law -- Andrew J. Gerling -- andrew@doucet.law -- Doucet & Associates, Inc., Timothy J. Cook -- timothy@doucet.law -- Doucet & Associates Co, LLC & Troy John Doucet -- troy@doucet.law.com. Huntington Bancshares Incorporated, doing business as The Huntington National Bank, Defendant, represented by Brett A. Wall -- bwall@bakerwall.com -- Baker & Hostetler & Lisa M. Ghannoum -- lghannoum@bakerlaw.com -- Baker & Hostetler LLP. INDEPENDENT PHARMACY: Nashville Pharmacy Sues over Faxed Ads ------------------------------------------------------------ NASHVILLE PHARMACY SERVICES, LLC, individually and on behalf of all others similarly situated, Plaintiff v. INDEPENDENT PHARMACY COOPERATIVE, and JOHN DOES 1-10, Defendants, Case No. 3:18-cv-00668 (M.D. Tenn., July 18, 2018) seeks to stop the Defendants' practice of making unsolicited sending of facsimiles without the Plaintiff's express consent. The Plaintiff alleges in the complaint that the Defendant has sent facsimile transmissions of unsolicited advertisements to the Plaintiff and the class, including but not limited to the unsolicited fax advertisements sent to the Plaintiff without its express consent. Independent Pharmacy Cooperative, Inc. operates a group purchasing organization for independent pharmacies in the United States. Independent Pharmacy Cooperative, Inc. was formerly known as Badger State Independent Pharmacy Cooperative. The company was founded in 1983 and is based in Sun Prairie, Wisconsin. [BN] The Plaintiff is represented by: Charles Barrett, Esq. Benjamin C. Aaron, Esq. NEAL & HARWELL, PLC 1201 Demonbreun Street, Suite 1000 Nashville, TN 37203 Telephone: (615) 244-1713 Facsimile: (615) 726-0573 E-mail: cbarrett@nealharwell.com baaron@nealharwell.com J&L CABLE TV: Fails to Pay OT to Technicians, Jean-Pierre Claims ---------------------------------------------------------------- ROBENSON JEAN-PIERRE, and JEAN METELUS, individually and on behalf of all others similarly situated, Plaintiffs v. J&L CABLE TV SERVIES, INC., Defendant, Case No. 1:18-cv-11499 (D. Mass., July 18, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Jean-Pierre was employed by the Defendant as technician from June 2016 to May 2017. J & L Cable TV Services, Inc. operates as a cable company. The Company provides installation of cable services such as news, entertainment and sports cable networks, television production operations, internet, and phone services. J & L Cable TV Services serves residential and commercial customers in the United States. [BN] The Plaintiff is represented by: Matthew W. Thomson, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: mthomson@llrlaw.com - and - Sarah R. Schalman-Bergen, Esq. Stacy Savett, Esq. Shoshana Savett, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: sschalman-bergen@bm.net stasavett@bm.net stsavett@bm.net - and - Carolyn Hunt Cottrell, Esq. David C. Leimbach, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com dleimbach@schneiderwallace.com JOHNSON & JOHNSON: Faces Bard Suit over Sale of Talcum Products --------------------------------------------------------------- NANCY BARD, and CHARLES BARD, individually and on behalf of all others similarly situated, Plaintiffs v. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC.; and DOES 1 through 100, inclusive, Defendants, Case No. 18CV331733 (Cal. Super., Santa Clara Cty., July 24, 2018) seeks to recover damages as a result of Plaintiff Nancy Bard's ovarian cancer, which was directly and proximately caused by the wrongful conduct of the Defendants, the false and fraudulent representations, omissions, and concealments of the defective nature of talcum powder, the main ingredient of the Defendants' product. According to the complaint, the Plaintiff Nancy Bard developed ovarian cancer, and suffered effects and sequelae therefrom, as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder, the main ingredient of the Defendants' products. The Defendants also committed wrongful and negligent conduct in the research, development, testing, manufacture, production, formulation, processing, packaging, promotion, distribution, marketing, and sale of the their products and the talcum powder that comprises the products. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. The company markets its products to general public, retail outlets and distributors, wholesalers, hospitals, and health care professionals for prescription use, as well as for use in the professional fields by physicians, nurses, hospitals, eye care professionals, and clinics. Johnson & Johnson was founded in 1885 and is based in New Brunswick, New Jersey. [BN] The Plaintiffs are represented by: Lee Cirsch, Esq. Michael Akselrud, Esq. THE LANIER LAW FIRM, PC 21550 Oxnard Street, 3rd Floor Woodland Hills, CA 91367 Telephone: (310) 277-5100 Facsimile: (310) 277-5103 E-mail: lee.cirsch@lanierlawfirm.com michael.akselrud@lanierlawfirm.com JONATHAN NEIL: Court Extends Settlement Notice Filing Date ---------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order continuing Deadline for Parties to File Notice Regarding Action Settlement in the case captioned TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant, Case No. 1:17-cv-00675-SAB.(E.D. Cal.). On July 2, 2018, the parties informed the Court that they wished to schedule an informal conference to discuss settlement and requested an extension of the deadline to file their notice. Accordingly, the deadline to file notice regarding whether the parties will be pursuing settlement or the matter should proceed to a scheduling conference is continued. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/y874wvu3 from Leagle.com. Teri Brown, Plaintiff, represented by Ari H. Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice,Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan -- cegan@porterscott.com -- Porter Scott, APC, Derek Joseph Haynes -- dhaynes@porterscott.com -- Porter Scott, PC & Lynette Mary Komar, Porter Scott. LBT ACQUISITION: Court Narrows Claims in Securities Fraud Suit -------------------------------------------------------------- The United States District Court for the District of Delaware granted in part and denied in part Defendant's Motion to Dismiss the second amended complaint in case captioned LABORERS' LOCAL #231 PENSION FUND, v. RORY J. COWAN, et al., Civil Action No. 17-478 (D. Del.). Pension Fund files a second amended complaint suing H.I.G. Capital L.L.C.; LBT Acquisition, Inc., LBT Merger Sub, Inc. & Lionbridge Technologies, Inc.'s board of directors and officers alleging the January definitive proxy statement violated the Securities and Exchange Act of 1934 and its implementing regulations. Pension Fund alleges Lionbridge omitted from the proxy statement the material fact the financial projections did not incorporate Lionbridge's potential growth through its acquisition growth strategy and rendered six statements in the proxy materially false or misleading under Section 14(a) of the '34 Act. Pension Fund pleads one limited Section 14(a) claim against Lionbridge and its board and officers To plead a Section 14(a) violation, Pension Fund must allege (1) a proxy statement contained a material misrepresentation or omission which (2) caused the plaintiff injury and (3) that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction. The Delaware court of appeals instructs the Court that claims sounding in fraud brought under Section 14(a) are subject to the heightened pleading standards found in the Private Securities Litigation Reform Act. Under the heightened standard, the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed. The Reform Act is designed to restrict abuses of class action securities litigation. The Reform Act mandates the Court dismiss a complaint failing to meet the heightened pleading requirements. Under the '34 Act and Reform Act, the Court limits its review to the statements alleged to be false or misleading in Pension Fund's second amended complaint. Pension Fund again fails to allege a false or misleading statement based on the projection numbers and assumptions. In OFI Asset Mgmt., 834 F.3d 481 (3d Cir. 2016), the court of appeals affirmed the dismissal of a complaint based on alleged misleading financial projections included in a proxy statement. The plaintiff in OFI Asset alleged the proxy statement contained materially false and misleading financial projections because the projections did not provide accurate estimates of the defendant's future revenue and operating profits. In its Second Amended Complaint, Pension Fund again claims the projections and assumptions underlying the projections are false and misleading because the projections did not include Lionbridge's potential growth through acquisitions. Pension Fund does not allege new facts or raise new legal arguments relating to the projections and assumptions. As in OFI Asset Mgmt., Lionbridge accompanied its financial projections with a lengthy and specific disclaimer. The disclaimer included in the proxy closely resembles the disclaimer analyzed in OFI Asset Mgmt. The disclaimer highlighted the fact Lionbridge included the projections cited by Pension Fund in the proxy statement for the purpose of providing the voting shareholders with information Lionbridge's board, special committee, and financial advisor used to assess the potential merger. Based on the disclaimer accompanying the projections, the only relevant statement of fact a shareholder may draw from the inclusion of the projections is Lionbridge provided the same projections to its special committee of independent directors and to Union Square in assessing the proposed merger with LBT Merger Sub. Pension Fund does not allege how the omission of potential growth through an acquisition strategy is materially misleading or false based on the information reported to Union Square. Pension Fund does not allege Lionbridge's board did not provide the projections to its special committee, or financial advisor. Whether the projection incorporated the acquisition strategy does not negate Lionbridge's representation it provided the same projection to others involved in assessing the merger. The representation in the proxy statement is true. Pension Fund's claim the Defendants should have told Union Square more information may have been or could have been part of the pre-merger Chancery Court litigations, but this "should have disclosed" is not part of the plead Section 14 claim here. Pension Fund's claim based on the projection assumptions fails for the same reasons. Pension Fund does not identify how the assumptions render the statement of fact the same projections were provided to Lionbridge's board and Union Square is materially false or misleading. Even assuming it is true the assumptions do not reflect Lionbridge's acquisition strategy, it would not negate the representation by Lionbridge it provided the same projections based on the same purported assumptions to its board, special committee and financial advisor. Allowing Pension Fund to backdoor a claim based on the projections by alleging false and misleading assumptions would allow Pension Fund to wholly bypass our court of appeals' decision in OFI Asset Mgmt.Based on our liberal reading of Pension Fund's second amended complaint, Lionbridge provided the same allegedly flawed projections to its board, special committee, and financial advisors as it did to its shareholders. Pension Fund fails to sufficiently allege the board's consideration of Lionbridge's business and financial prospects if it remained an independent, publicly traded company is false or misleading. Pension Fund claims the following statement in the proxy is materially false or misleading because the proxy statement did not disclose the projections did not include potential growth through an acquisition strategy: “During the course of its deliberations, the Special Committee held numerous meetings and consulted with our senior management, Union Square and Goodwin Proctor, and reviewed, evaluated and considered numerous factors and a significant amount of information and data, together with our full Board of Directors, including our business and financial prospects if we were to remain an independent, publicly-traded company and the growth and scale required to effectively compete in the localization and interpretation industries, including forecasts of future financial performance set forth in the disclosed projections.” Pension Fund's claim directly contradicts the lengthy and specific disclaimer attached to the projections in the proxy statement. The disclaimer stated Lionbridge did not consider the projections to be predictive of Lionbridge's actual business prospects. Specifically, the disclaimer stated, The inclusion of the selected elements of the forecasts in the table and accompanying narrative above should not be regarded as an indication that Lionbridge and/or any of our affiliates, officers, directors, advisors or other representatives consider the forecasts to be predictive of actual future events, and this information should not be relied upon as such. Pension Fund attempts to backdoor a claim based on the projection numbers and bypass OFI Asset Mgmt. Lionbridge included the projections to provide its shareholders the same projections the board, special committee, and Union Square used in assessing the merger. Pension Fund fails to allege this challenged statement is false or misleading under Section 14. Pension Fund alleges Lionbridge's expressed belief Union Square's fairness opinion is a positive reason supporting its decision to approve the merger is materially false or misleading. Based on a liberal reading of Pension Fund's second amended complaint, Lionbridge did not incorporate acquisition based growth into its projections it provided to Union Square. Lionbridge also did not disclose to its shareholders it omitted acquisition based growth in its financial projections. This omission conflicts with the information a reasonable investor could have taken from the representation in the proxy. The board allegedly knew its projections and Union Square's fairness opinion did not account for acquisition based growth but simultaneously expressed confidence in the same opinion to its shareholders. Pension Fund states a claim under Section 14 based on the board's expressed belief Union Square's fairness opinion is a positive reason supporting its decision to approve the merger. Pension Fund fails to allege the board's belief $5.75 provided shareholders with greater certainty of value over their share's potential trade price is materially false or misleading. The board, with knowledge of Lionbridge's acquisition growth strategy, expressed its subjective belief $5.75 provided shareholders greater certainty and Pension Fund does not allege the board did not hold this belief or the board did not account for Lionbridge's acquisition strategy when making its own valuation analysis. Pension Fund fails to allege a false or misleading statement under Section 14 based on the board's subjective belief $5.75 provides its shareholders greater certainty in value. Pension Fund fails to plead a Section 14(a) claim against HIG, LBT Acquisition, and LBT Merger Sub but pleads a claim against Mr. Litz. Section 14(a) applies to any person who solicits or permits the use of his name to solicit a proxy in violation of securities regulations. Pension Fund does not allege HIG, LBT Acquisition, and LBT Merger Sub solicited or permitted Lionbridge to use their name to solicit Lionbridge shareholders' proxy. Pension Fund fails to allege a Section 14(a) claim against HIG, LBT Acquisition, and LBT Merger Sub. Pension Fund pleads a Section 20(a) claim against Mr. Litz, HIG, LBT Acquisition, and LBT Merger Sub. Section 20(a) of the '34 Act imposes liability on every person who controls any person liable under any provision of the '34 Act. To plead control person liability, Pension Fund must allege (1) a primary violation of federal securities law by a controlled person and (2) control of the primary violator by the defendant. Lionbridge sufficiently alleges control of Lionbridge and its board and directors by HIG and its affiliate companies. Under the merger agreement, LBT Acquisition and LBT Merger Sub, entities created by HIG, were obligated to cooperate in preparing and filing the proxy statement and to provide Lionbridge certain information. LBT Acquisition also had the opportunity to review and comment on the proxy statement before Lionbridge issued it to its shareholders. Pleading opportunities to provide information, to review the proxy, and to comment on the substance of the proxy, Pension Fund alleges sufficient facts to support the inference HIG, LBT Acquisition, and LBT Merger Sub at least had the potential to influence Lionbridge's board in approving and recommending the merger to its shareholders. Accordingly, the Court grants in part and denies in part the Defendants' motion to dismiss. Pension Fund pleads a Section 14(a) claim against Lionbridge and its board and officers based on the statement the board viewed Union Square's fairness opinion as a positive reason supporting its decision to approve the proposed merger. A full-text copy of the District Court's July 2, 2018 Memorandum is available at https://tinyurl.com/ycql9w69 from Leagle.com. Laborers' Local #231 Pension Fund, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Peter B. Andrews -- pandrews@andrewsspringer.com -- Andrews & Springer LLC & Craig J. Springer -- cspringer@andrewsspringer.com -- Andrews & Springer LLC. Rory J. Cowan, Edward A. Blechschmidt, Michael G. Dallas, Guy L. de Chazal, Susan Jane Kantor, Jack Noonan, James A. Quella, Claude P. Sheer & Marc Litz, Defendants, represented by David John Teklits - dteklits@mnat.com -- Morris, Nichols, Arsht & Tunnell LLP & Deborah Birnbach -- dbirnbach@goodwinprocter.com -- Goodwin, pro hac vice. Paul A. Kavanaugh, Defendant, represented by David John Teklits, Morris, Nichols, Arsht & Tunnell LLP. H.I.G. Capital L.L.C., Defendant, represented by Anne Shea Gaza -- agaza@ycst.com -- Young, Conaway, Stargatt & Taylor LLP, Elena C. Norman -- enorman@ycst.com -- Young, Conaway, Stargatt & Taylor LLP & Joshua Z. Rabinovitz -- joshua.rabinovitz@kirkland.com -- Kirkland & Ellis LLP, pro hac vice. LBT Acquisition, Inc., LBT Merger Sub, Inc. & Lionbridge Technologies, Inc., Defendants, represented by Anne Shea Gaza -- agaza@ycst.com -- Young, Conaway, Stargatt & Taylor LLP & Elena C. Norman -- enorman@ycst.com -- Young, Conaway, Stargatt & Taylor LLP. LL BEAN: Court OKs Dismissal of V. Bondi's MMWA Suit ---------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted Defendant's Motion to Dismiss the case captioned VICTOR BONDI, on behalf of himself and all others similarly situated, Plaintiff v. L.L. BEAN, INC., Defendant, Case No. 18 C 1101 (N.D. Ill.) Plaintiff Victor Bondi, on behalf of himself and all others similarly situated, has brought a five count putative class action complaint against defendant L.L. Bean, Inc. alleging: (1) violation of the Magnuson-Moss Warranty Act (MMWA) (2) breach of express warranty (3) violations of the Illinois Consumer Fraud Act (ICFA) (4) unjust enrichment; and (5) declaratory relief. The Defendant has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1), arguing that the plaintiff lacks standing to bring his claims. The Defendant argues that the plaintiff has failed to establish that he has suffered a concrete and particularized injury because he has not alleged that he has tried to return any product that he purchased from defendant prior to February 9, 2018, let alone alleging that those efforts have been denied. Article III standing has three elements: (1) the plaintiff must have suffered an injury in fact, an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to the challenged action of the defendant; and (3) it must be redressable by a favorable decision. The court concludes that the plaintiff has failed to state a claim for breach of warranty. This failure also dooms plaintiff's MMWA claim. As a result, neither Count I or nor Count II state a claim. The Plaintiff also fails to state a claim under the ICFA, which proscribes both deceptive and unfair practices. To state a claim under the ICFA for deceptive practices, plaintiff must allege: (1) a deceptive act or practice by defendant; (2) defendant's intent that plaintiff rely on the deception; (3) the occurrence of the deception in the course of conduct involving trade or commerce; and (4) actual damage to plaintiff proximately caused by the deception. To determine whether a practice is unfair, courts consider whether the defendant's conduct: (1) violates public policy; (2) is immoral, unethical, or unscrupulous; and (3) causes substantial injury to consumers. Although unclear, it appears that the plaintiff is attempting to assert claims for both deceptive acts and unfair practices. Both claims, however, are premised entirely on the plaintiff's allegation that the February 9, 2018, statement is a repudiation of the old warranty. Because the court has already concluded that the claim fails to allege such a repudiation, both claims fail. The statement, as written, is neither unfair nor deceptive. Additionally, the plaintiff has not yet incurred any damage. Consequently, the court concludes that the plaintiff fails to state a claim under the ICFA and Count III is dismissed. Count IV purports to allege a claim for unjust enrichment. In Illinois, a claim for unjust enrichment is unavailable if an express contract governs the transaction. The Plaintiff's unjust enrichment claim is based on exactly the same conduct that forms the basis of his express warranty claims. And, because there is not dispute as to the existence of a contract, the unjust enrichment claim must be dismissed. Finally, Count V, for declaratory relief also fails because it is again based on the plaintiff's claim of repudiation, which the court has already rejected. A full-text copy of the District Court's June 28, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ycq6y6fh from Leagle.com. Victor D. Bondi, on behalf of himself and all others similarly situated, Plaintiff, represented by Ben Barnow, Barnow and Associates, P.C., Erich Paul Schork, Barnow and Assoc., PC & Anthony L. Parkhill, Barnow and Associates, P.C. L.L. Bean, Inc., a Maine corporation, Defendant, represented by Anthony J. Anscombe, Steptoe & Johnson LLP, Meegan Bay BROOKS -- mbrooks@steptoe.com -- Steptoe & Johnson LLP, pro hac vice, Stephanie A. SHERIDAN -- Sheridan@steptoe.com -- Steptoe & Johnson LLP, pro hac vice, Daniel E. Raymond -- draymond@steptoe.com -- Steptoe & Johnson LLP, Darlene Kay Alt, Steptoe & Johnson LLP & Mary E. Buckley, Steptoe & Johnson LLP. LUBRICATING SPECIALTIES: Fails to Pay Proper Wages, Landeros Says ----------------------------------------------------------------- BERTHA LANDEROS, individually and on behalf of all others similarly situated, Plaintiff v. LUBRICATING SPECIALTIES COMPANY, and DOES 1 through 50, inclusive, Defendants, Case No. BC715153 (Cal. Super., Los Angeles Cty., July 24, 2018) is an action against the Defendants for failure to pay overtime wages at the correct rate, minimum wage, provide proper wage statements, provide meal and rest periods, timely pay final wages at termination, and provide notice of sick leave. Ms. Landeros was employed by the Defendants as non-exempt, hourly employee from August 2007 to August 2017. Lubricating Specialties Company, Inc. operates as a blender and packager of lubricants and greases in the Western United States. Lubricating Specialties Company, Inc. has a strategic partnership with TOP 1 Oil Products Company. The company was founded in 1928 and is based in Pico Rivera, California. Lubricating Specialties Company, Inc. operates as a subsidiary of LSC Funding Corp. [BN] The Plaintiff is represented by: Farzad Rastegar, Esq. Amir Seyedfarshi, Esq. RASTEGAR LAW GROUP, APC 22760 Hawthorne Blvd., Suite 200 Torrance, CA 90505 Telephone: (310) 961-9600 Facsimile: (310) 961-9094 E-mail: farzad@rastegarlawgroup.com amir@rastegarlawgroup.com MACY'S RETAIL: Filing of 2nd Amended "Orellana" Suit Partly OK'd ---------------------------------------------------------------- In the case, CINTHIA CAROLINA REYES ORELLANA and SAMYA I. MOFTAH, individually and on behalf of all similarly situated individuals, Plaintiffs, v. MACY'S RETAIL HOLDINGS, INC. d/b/a MACY'S f/k/a MACY'S EAST a/k/a MACY'S, INC.; LAW OFFICES OF PALMER, REIFLER and ASSOCIATES, P.A., Defendants, Case No. 17 Civ. 5192 (NRB) (S.D. N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York granted in part and denied in part the Plaintiffs' motion for leave to amend their first amended class action complaint against Macy's. As a mercantile establishment, Macy's is authorized under two separate New York statutory schemes to (1) reasonably detain suspected shoplifters, and (2) collect civil penalties and damages therefrom. The Plaintiffs' proposed amended class action complaint alleges that Macy's has abused and exceeded these authorizations by implementing them in combination. According to the Plaintiffs, Macy's demands that suspected shoplifters (1) pay, or agree to pay, civil penalties; and (2) confess to shoplifting, while they are being detained. Further, the Plaintiffs allege that Macy's falsely promises suspected shoplifters that they will be released if they meet Macy's demands, only to be subsequently arrested at Macy's behest. The Plaintiffs' proposed amended class action complaint asserts a variety of causes of action with respect to this conduct, including false imprisonment, fraud, abuse of process, and consumer deception. The Plaintiffs seek to represent a putative class of individuals who Macy's detained as suspected shoplifters, pursuant to GBL Section 218 and GOL Section 11-105, in its New York stores. Their proposed amended class action complaint describes Macy's "loss prevention" scheme as follows. Upon suspicion of shoplifting, a Macy's employee approaches a suspect and directs him to an in-store jail complete with private search areas, handcuffs, and jail cells with adjoining desks. Upon detention, the employee performs a full-body search, inspects the contents of the accused shoplifter's wallet, and conducts an interrogation. Key to this litigation, the loss prevention employee also promises the detained shoplifter that he will be released so long as he (1) completes a promissory note, i.e., a civil demand notice, agreeing to pay, either immediately or in the future, a civil penalty, and (2) signs a confession. Yet, according to the proposed amended class action complaint, contrary to the employee's representation, Macy's instead calls the police, and the suspect is held until he is arrested and transferred to police custody, along with a supporting deposition prepared by a Macy's loss prevention employee. The proposed amended class action complaint asserts causes of action against Macy's for (1) false imprisonment, (2) abuse of process, (3) "fraud/unjust enrichment," (4) deceptive business practices in contravention of New York General Business Law Section 349, N.Y. Gen. Bus. Law Section 349, (5) assault/battery, and (6) deprivation of civil rights under 42 U.S.C. Section 1983. The Plaintiffs seek, inter alia, a permanent injunction of in-store demands for immediate payments, signed confessions, and promissory notes from suspected shoplifters in Macy's custody in New York, a refund of all moneys collected in custody, and money damages to each Plaintiff that was subjected to in-store demands. The Plaintiffs define the class they seek to represent as consisting of all persons who, while accused of shoplifting and detained by Macy's at their New York department stores, have been or will be subjected to in-store demands for confessions of shoplifting, and demands to pay civil penalties. There are 11n named Plaintiffs. Now pending is the Plaintiffs' motion, pursuant to Federal Rules of Civil Procedure 15(a), 20(a)(1), 21, and 81(c)(2), to amend their operative first amended class action complaint to (1) add nine new Lead Plaintiffs (Ramirez, Perullo, Melgar, Lema, Ratner, Nahar, Hoque, Acteopan, and Osongba), (2) withdraw all claims against Palmer, (3) assert new causes of action against Macy's for fraud and deceptive business practices under GBL Section 349, (4) modify the pre-existing causes of action, and (5) redefine the contours of the class. Judge Buchwald granted leave to amend with respect to (1) Orellana, Moftah, Ramirez, Perullo, Melgar, and Lema's fraud claims, to the extent they allege that Macy's misrepresented that they would be released if they paid or agreed to pay civil fines and/or sign confessions to shoplifting; (2) Orellana, Moftah, Ramirez, Perullo, Melgar, and Ratner's GBL Section 349 claims, to the extent they allege that Macy's engaged in a deceptive business practice by misrepresenting that they would be released if they paid or agreed to pay civil fines and/or sign confessions to shoplifting; and (3) Orellana, Moftah, Ramirez, Perullo, Ratner, Hoque, Nahar, Acteopan, and Osongba's "assault/battery" and false imprisonment claims. Leave to amend is also granted to the extent all claims against Palmer are withdrawn. The Judge denied with prejudice the Plaintiffs' motion for leave to amend in all other respects. She denied without prejudice the Plaintiffs' motion for leave to move to enforce the Supreme Court preliminary injunction, and for contempt sanctions in violation thereof. The Plaintiffs will file an amended class action complaint in accordance with, and within 14 days of, the Memorandum and Order. All the counsel for extant parties will thereafter appear for a status conference before the Court on Aug. 2, 2018 at 2:30 p.m. The Clerk of Court is directed to (1) terminate Law Offices of Palmer, Reifler and Associates, P.A. as a Defendant (and amend the case caption accordingly), and (2) terminate docket numbers 28 (granted in part and denied in part) and 38 (denied without prejudice). A full-text copy of the Court's July 10, 2018 Memorandum and Order is available at https://is.gd/UXCImt from Leagle.com. Cinthia Carolina Reyes Orellana, individually and on behalf of all similiarly situated retail customers, Plaintiff, represented by Faruk Usar -- fusar@usarlaw.com -- Usar Law Group, P.C. & Steven B. Wasserman, Legal Aid Society. Samya I Moftah, individually and on behalf of all similiarly situated retail customers, Plaintiff, represented by Faruk Usar, Usar Law Group, P.C. Macy's Retail Holdings, Inc., doing business as Macy's formerly known as Macy's East also known as Macy's Inc., Defendant, represented by Alison B. Marshall -- abmarshall@jonesday.com -- Jones Day, Meir Feder -- mfeder@jonesday.com -- Jones Day, Michael E. McDonagh -- mmcdonagh@lskdnylaw.com -- Lester, Schwab, Katz and Dwyer LLP & Robert Nicholas Dunn -- dunn@lskdnylaw.com -- Lester, Schwab, Katz and Dwyer LLP. MARRIOTT INTERNATIONAL: Swartz Sues over Violation of ADA --------------------------------------------------------- HELEN SWARTZ, individually and on behalf of all others similarly situated, Plaintiff v. MARRIOTT INTERNATIONAL, INC., Defendant, Case No. 2:18-cv-03135-GJP (E.D. Pa., July 25, 2018) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant failed to provide facilities accessible to and useable by individuals with disabilities as required by the ADA. The Defendant has discriminated against the Plaintiff, and those with disabilities, by denying access to, and full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of the Defendant's hotel. Marriott International, Inc. operates, franchises, and licenses hotel, residential, and timeshare properties worldwide. As of June 7, 2018, it operated, franchised, and licensed approximately 6,500 properties in 127 countries and territories. Marriott International was founded in 1927 and is headquartered in Bethesda, Maryland. [BN] The Plaintiff is represented by: David S. Dessen, Esq. DESSEN MOSES & ROSSITO 600 Easton Road Willow Grove, PA 19090 Telephone: (215) 496-2902 Facsimile: (215) 564-2879 E-mail: ddessen@dms-lawyer.com - and – Lawrence A. Fuller, Esq. FULLER FULLER & ASSOCIATES, P.A. 12000 Biscayne Boulevard, Suite 502 North Miami, FL 33181 Telephone: (305) 891-5199 Facsimile: (305) 893-9505 E-mail: lfuller@fullerfuller.com MASSACHUSETTS: Governor Faces McMann Suit in D. Massachusetts ------------------------------------------------------------- PAUL J. MCMANN, and EILEEN R. MCMANN, individually and on behalf of all others similarly situated, Plaintiffs v. CHARLES BAKER, JR., Governor of Massachusetts; STEPHANIE POLLACK, Secretary of Transportation; ERIN DEVENEY, Registrar at Massachusetts Department of Transportation; CHRISTOPHER C. HARDING, Commissioner of Massachusetts Department of Revenue; CHARLES BORSTEL, Director of the Divison of Professional Licensure; and MAURA HEALY, Attorney General, Commonwealth of Massachusetts, Defendants, Case No. 1:18-cv-11550-LTS (D. Mass., July 23, 2018) alleges violation of the due process and equal protection clause under the U.S. Constitution. According to the complaint, the Commonwealth of Massachusetts violated the Plaintiffs' rights under the U.S. Constitution when the Plaintiffs driver's licenses were revoked by the Massachusetts Registry of Motor Vehicles. The revocation was because of state taxes they owed; when the Plaintiff Paul McMann's real estate license was revoked by the Division of Professional Licensure because he owed state taxes; when the Commonwealth has placed the McMann's names on a national database regarding the suspension of their driver's licenses. Because the McMann's names are on a national database with their driver's license revocations, the McManns are unable to move to a new state and obtain new licenses.[BN] The Plaintiffs filed the case pro se. MDL 2047: Court Grants WWIC's Bid to Dismiss -------------------------------------------- The United States District Court for the Eastern District of Louisiana granted Defendant Western World Insurance Company's Unopposed Motion to Dismiss Due to InEx Settlement the case captioned IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT RELATES TO: Hakenjos, et al v. Tallow Creek LLC, et al, No. 10-2579, SECTION L (5). Civil Action MDL No. 2047.(E.D. La.). Drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. The Court granted preliminary approval of a class action settlement agreement reached by the Plaintiffs' Steering Committee, InEx, and InEx's primary insurers. This settlement also provided for settlement of claims against certain entites downstream in the chain of commerce from InEx. The Petitioners do not oppose this motion. Accordingly, the Court will grant the motion as uncontested, and for good reason because the Court finds that WWIC is in fact a downstream releasee under the InEx Settlement. A full-text copy of the District Court's July 2, 2018 Order and Reasons is available at https://tinyurl.com/y9lz7qfj from Leagle.com. Lynn C Greer, Special Master, pro se. Plaintiff, Plaintiff, represented by Russ M. Herman -- rherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A. Davis -- ldavis@hhklawfirm.com -- Herman, Herman & Katz, LLC. Homebuilders and Installers Steering Committee, Defendant, represented by Phillip A. Wittmann -- pwittmann@stonepigman.com -- Stone, Pigman, Walther, Wittmann, LLC. Insurer Steering Committee, Defendant, represented by Judy Y. Barrasso -- JBarrasso@BarrassoUsdin.com -- Barrasso,Usdin, Kupperman, Freeman & Sarver, LLC. Defendant, Defendant, represented by Kerry J. Miller -- kmiller@bakerdonelson.com -- Baker Donelson Bearman Caldwell & Berkowitz & Andrew J Brien -- brien@carverdarden.com -- Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux. Defendant, Liaison Counsel for Taishan, BNMB entities, and CNBM entities, Defendant, represented by Harry Rosenberg -- harry.rosenberg@phelps.com -- Phelps Dunbar, LLP. MDL 2262: Court Won't Reconsider GDB Fraud Claims Dismissal ----------------------------------------------------------- The United States District Court for the Southern District of New York denied Plaintiffs' Motion for Reconsideration in the case captioned In re: LIBOR-Based Financial Instruments Antitrust Litigation. This Document Applies to: Lender Action. Nos. 11 MD 2262 (NRB), 12 Civ. 5723 (S.D.N.Y.). The lender plaintiffs seek reconsideration of the Court's decision in LIBOR V, 2015 WL 6696407 (S.D.N.Y. Nov. 3, 2015), dismissing as time-barred the fraud claims asserted by Government Development Bank for Puerto Rico (GDB) slip op. The Lender plaintiffs base this motion on the analysis of the statute of limitations applicable under California law set forth in Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68, 97-98 (2d Cir. 2018). The motion is denied. The Court considered a comparable request from the Exchange plaintiffs two months ago, and this request fares no better. As a threshold matter, even assuming that Schwab's analysis of statutes of limitations and inquiry notice under California law applies directly to GDB's fraud claims under Puerto Rico law, Lender plaintiffs offer no justification for why their motion was not filed until sixteen weeks after the Second Circuit's issuance of Schwab. As sixteen is greater than seven, this unexplained delay alone warrants denial of GDB's pending application as well. Lender plaintiffs' motion falls far short, too, of the substantive standard for reconsideration. Reconsideration on the basis of an intervening change in controlling law is appropriate only when the court has a clear conviction of error with respect to a point of law on which its previous decision was predicated. Mere doubt is not enough to open the point for full reconsideration. At this point in the litigation, Lender plaintiffs should be well aware of the importance of variations in state law. And yet, Lender plaintiffs do not consider, address, or even cite any Puerto Rico law in contending that the Court should reconsider our prior analysis of Puerto Rico law even though issues regarding statutes of limitations generally and the recognition of a defendant reassurance exception specifically, have figured in this litigation from the outset, slip op. The lender plaintiffs' application for reconsideration untimely, underdeveloped, and ultimately unpersuasive is denied. The lender plaintiffs must revise the notice program proposed in relation to the pending settlements to acknowledge both LIBOR V's dismissal of GDB's fraud claims and LIBOR VII's denial of class certification, as directed by the Court during the conference held on June 18, 2018. A full-text copy of the District Court's July 2, 2018 Memorandum and Order is available at https://tinyurl.com/yatbhflc from Leagle.com. FTC Capital GMBH, on behalf of themselves and all others similarly situated, Plaintiff, represented by Christopher Lovell -- clovell@lshllp.com -- Lovell Stewart Halebian Jacobson LLP, Daniel Hume -- dhume@kmllp.com -- Kirby McInerney LLP, David E. Kovel -- dkovel@kmllp.com -- Kirby McInerney LLP, Roger W. Kirby, Kirby McInerney LLP, Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Surya Palaniappan, Kirby McInerney LLP. Bank of America Corporation, Defendant, represented by Paul Steel Mishkin -- paul.mishkin@davispolk.com -- Davis Polk & Wardwell L.L.P., Abram Jeremy Ellis -- aellis@stblaw.com -- Simpson Thacher & Bartlett LLP, Arthur J. Burke -- arthur.burke@davispolk.com -Davis Polk & Wardwell, Edward Fu -- edward.fu@davispolk.com -- Davis Polk & Wardwell LLP, Julie Saranow Epley, Davis Polk & Wardwell, Neal Alan Potischman -- neal.potischman@davispolk.com -, Davis Polk & Wardwell LLP, Patrick Wyatt Blakemore -- patrick.blakemore@davispolk.com -- Davis Polk & Wardwell LLP, Peter John Davis -- peter.davis@davispolk.com -- Davis Polk & Wardwell LLP & Robert Frank Wise, Jr. -- robert.wise@davispolk.com -- Davis Polk & Wardwell L.L.P. MENTOR GRAPHICS: WPEE Pension Fund Appeals Order to Ninth Circuit ----------------------------------------------------------------- Plaintiff Western Pennsylvania Electrical Employees Pension Fund filed an appeal from a court ruling in the lawsuit styled WPEE Pension Fund v. Mentor Graphics Corporation, et al., Case No. 3:16-cv-00470-PK, in the U.S. District Court for the District of Oregon, Portland. As previously reported in the Class Action Reporter, pursuant to the Private Securities Litigation Reform Act of 1995, WPEE Pension Fund is appointed as Lead Plaintiff, and the law firm of Robbins Geller Rudman & Dowd LLP is approved as Lead Counsel for the putative class. The appellate case is captioned as WPEE Pension Fund v. Mentor Graphics Corporation, et al., Case No. 18-35693, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Mediation Questionnaire is due on August 27, 2018; -- Transcript must be ordered by September 17, 2018; -- Transcript is due on October 16, 2018; -- Appellant Western Pennsylvania Electrical Employees Pension Fund's opening brief is due on November 26, 2018; -- Appellees Gregory K. Hinckley, Mentor Graphics Corporation, Joseph Reinhart and Walden C. Rhines' answering brief is due on December 26, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant WESTERN PENNSYLVANIA ELECTRICAL EMPLOYEES PENSION FUND, Individually and on Behalf of All Others Similarly Situated, is represented by: Susan Katina Alexander, Esq. Kenny Black, Esq. Andrew Love, Esq. Willow E. Radcliffe, Esq. Shawn Anthony Williams, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP One Montgomery Street San Francisco, CA 94104 Telephone: (415) 288-4545 E-mail: salexander@rgrdlaw.com kennyb@rgrdlaw.com alove@rgrdlaw.com willowr@rgrdlaw.com shawnw@rgrdlaw.com - and - Gary M. Berne, Esq. Jennifer S. Wagner, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER, P.C. 209 SW Oak Street Portland, OR 97204 Telephone: (503) 227-1600 E-mail: gberne@ssbls.com jwagner@stollberne.com Defendants-Appellees MENTOR GRAPHICS CORPORATION, WALDEN C. RHINES, GREGORY K. HINCKLEY and JOSEPH REINHART are represented by: Barry M. Kaplan, Esq. John C. Roberts, Jr., Esq. Gregory L. Watts, Esq. WILSON SONSINI GOODRICH & ROSATI, PC 701 Fifth Avenue Seattle, WA 98104-7036 Telephone: (206) 883-2500 E-mail: bkaplan@wsgr.com jroberts@wsgr.com GWatts@wsgr.com - and - Jeanne Kallage Sinnott, Esq. MILLER NASH GRAHAM & DUNN LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, OR 97204-3699 Telephone: (503) 205-2418 E-mail: jeanne.sinnott@millernash.com MICHIGAN: Court Dismisses D. Lamar's Inmates Civil Rights Suit -------------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, granted Plaintiffs' Motion to Dismiss the case captioned DEANDRE CURRIE-LAMAR, ET AL., Plaintiffs, v. SCOTT STEPHENSON, ET AL., Defendants, Case No. 18-cv-11663 (E.D. Mich.). The Plaintiffs allege unlawful jail conditions, highlighting inmates' inability to help other inmates with legal work and inmates' lack of timely access to medical care. The Plaintiffs also complain of the inclusion of pork in meals, the cost of hygiene packages, legal copies and mailings, and the prohibition on attending church services or visiting the law library when privileges were lost. To the extent Currie-Lamar seeks to represent other Plaintiffs in this action, his request is denied. He cannot adequately protect the interests of the other Plaintiffs. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/ybcuf6gp from Leagle.com. Deandre Currie-Lamar, Plaintiff, pro se. Tyrone Price, Plaintiff, pro se. Keithon Porter, Plaintiff, pro se. Earl D. Logan, Plaintiff, pro se. Jonathone J Johnson, Plaintiff, pro se. Lamar Moore, Plaintiff, pro se. Davaughn Gaines, Plaintiff, pro se. D'Angelo Davis, Plaintiff, pro se. Thadeous Hoof, Plaintiff, pro se. MINNESSOTA: Certification Bid in G. Greene's Inmate Suit Denied --------------------------------------------------------------- The United States District Court for the District of Minnesota denied Plaintiff's Motion for Class Certification in the case captioned Guy I. Greene, Plaintiff, v. Kelly Lake; Paul Coughlin; Brian Belich; Dave Kumanen; Jason Wilmes; Cammi Werner; Travis Warnygora; Tom Roy; John Does, an unknown number; and Jane Does, and unknown number; sued in their individual and official capacities, Defendants, Case No. 17-cv-3551 (SRN-KMM)(D. Minn.). This matter is before the Court on the Report and Recommendation (R&R) of Magistrate Judge Katherine M. Menendez, recommending denial of Plaintiff's Motion for Class Certification. The Plaintiff is housed with the Minnesota Sex Offender Program at Moose Lake, where he has limited access to legal resources and to the internet. He brought this civil rights action pro se under 42 U.S.C. Section 1983 for alleged harms arising out of an unrelated period of incarceration in the Carlton County Jail. In the R&R, the Magistrate recommends that the Plaintiff's Motion for Class Certification be denied. She concludes that the Plaintiff could not be an adequate class representative acting pro se. She additionally recommends that the Court not appoint class counsel because doing so is outside the scope of Rule 23(g). The Magistrate properly found that Plaintiff is unable to satisfy the adequacy requirement by virtue of his pro se status. It is well established that a non-attorney pro se plaintiff cannot adequately represent a class. The Magistrate also properly recommended that the Court not appoint counsel to represent the class. Rule 23(g)(1) states that a court that certifies a class must appoint class counsel and (g)(3) permits the court to designate interim counsel on behalf of a putative class before determining whether to certify the action as a class action. In the present case, the Plaintiff's requests for the appointment of counsel have already been denied once before. The posture of this case has not substantially changed since that time, despite the Plaintiff's request to have this case certified as a class action. In conclusion, after a de novo review of the record, the Court finds that the Magistrate properly analyzed the Plaintiff's motion for class certification. The Court therefore adopts her recommendations denying class certification and declining to appoint counsel for Plaintiff. Accordingly, the Plaintiff's Motion for Class Certification is denied. A full-text copy of the District Court's June 25, 2018 Order is available at https://tinyurl.com/y96328bc from Leagle.com. Guy I. Greene, et al., and all others similarly situated, Plaintiff, pro se. Kelly Lake, Carlton County Sheriff, sued in their individual and official capacity, Carlton County Jail, Paul Coughlin, Carlton County Jail Administrator, sued in their individual and official capacity, Brian Belich, Carlton County Deputy Sheriff, sued in their individual and official capacity, Jason Wilmes, Carlton County Jail Sergeant, sued in their individual and official capacity, Cammi Werner, Carlton County Jail Employee, sued in their individual and official capacity, Travis Warnygora, Carlton County Jail Employee, sued in their individual and official capacity & Dave Kumanen, Carlton County Jail Sergeant; sued in their individual and official capacity, Defendants, represented by Susan M. Tindal — susan@irc-law.com -- Iverson Reuvers Condon. Tom Roy, Commissioner, Minnesota Department of Corrections, sued in their individual and official capacity, Defendant, represented by Kelly S. Kemp, Minnesota Attorney General's Office. MONDELEZ INT'L: Suit Over Ginger Snaps PHO Remain in Dist. Court ---------------------------------------------------------------- The United States District Court for the Northern District of California denied Plaintiffs' Motion to Remand the case captioned VALORIE WINN, Plaintiff, v. MONDELEZ INTERNATIONAL, INC., et al., Defendants, Case No. 17-cv-02524-HSG (N.D. Cal.). Mondolez and Pak 'N Save market and sell Ginger Snaps, a cookie product that contained partially hydrogenated oil (PHO) until as recently as December 28, 2014. The Plaintiff alleges that PHO is a food additive banned in the United States and many parts of the world due to its artificial trans fat content and devotes a substantial portion of the Complaint to detailing her allegations that artificial trans fat is a toxic, unlawful food additive. Mondolez filed its Notice of Removal. The Court has original jurisdiction over the Plaintiff's action under the Class Action Fairness Act (CAFA). First, there is the requisite minimal diversity: the Plaintiff purports to be a citizen of California, and Mondolez is alleged to be a Virginia corporation with its principal place of business in Illinois. Second, there are more than 100 members in the putative class. And third, notwithstanding the Plaintiff's prayer for relief in the amount of less than $5 million and her express disclaimer of all relief that would subject her action to CAFA jurisdiction the Court is satisfied that Mondolez has shown that the potential damages could exceed the jurisdictional amount. The local controversy exception does not encompass the Plaintiff's claims because she did not incur her principal injuries in California. Irrespective of the Court's original jurisdiction, the Plaintiff contends that this case is a local controversy within the meaning of section 1332(d)(4), which would require this Court to decline to exercise CAFA jurisdiction. The Defendant counters that federal courts have repeatedly held the local controversy exception is to be applied narrowly and only to controversies that are truly local and that this action, which challenges conduct that occurred nationwide does not qualify. This amounts to an argument that the Plaintiff's action does not meet the requirements of section 1332(d)(4)(A)(i)(III) (section III), which requires that the principal injuries resulting from the alleged conduct or any related conduct of each defendant be incurred in the State in which the action was originally filed. The Court agrees that the Plaintiff's action fails to meet the requirements of section III, and that as a result, the local controversy exception does not apply. The Plaintiff contends that this case is a local controversy within the meaning of section 1332(d)(4), which would require this Court to decline to exercise CAFA jurisdiction. The Defendant counters that federal courts have repeatedly held the local controversy exception is to be applied narrowly and only to controversies that are truly local and that this action, which challenges conduct that occurred nationwide does not qualify. This amounts to an argument that the Plaintiff's action does not meet the requirements of section 1332(d)(4)(A)(i)(III) (section III), which requires that the "principal injuries” resulting from the alleged conduct or any related conduct of each defendant be incurred in the State in which the action was originally filed. The Court agrees that the Plaintiff's action fails to meet the requirements of section III, and that as a result, the local controversy exception does not apply. Because the Plaintiff alleges that the harm caused by the Defendants is national in scope, the local controversy exception does not apply. As relevant to this analysis, the Plaintiff alleges that Ginger Snaps were placed into interstate commerce by the Defendants and sold throughout the country and in this Alameda County. In other words, the Plaintiff's own allegations establish that the principal injuries alleged in this suit are not limited to California because Ginger Snaps are sold nationwide. While that was not determinative in Kearns which described its reasoning is compelling with respect to why the Court should decline to apply the local controversy exception. CAFA's legislative history, while not binding on this Court, is clear in stating that section III looks at where the principal injuries were suffered by everyone who was affected by the alleged conduct not just where the proposed class members were injured. Moreover, the Plaintiff encounters the same obstacle as did the plaintiff in Waller: her action is local only in the trivial and almost tautological sense that the definition of the putative class and the legal bases of the asserted claims make it so. THe Plaintiff has defined the putative class as consumers in California, while at the same time alleging that the harm, i.e., the selling of Ginger Snaps is national in scope. The Court looks beyond this framing, to the nature and scope of the alleged wrong, which the Complaint itself establishes is not California-specific or otherwise meaningfully local. Whether the Plaintiff intends to bring this action on a state-by-state basis is irrelevant. What matters is that the Plaintiff's claims are local only because of the manner in which she alleges them. The Court finds that the Plaintiff has failed to show that her alleged harm was incurred in California within the meaning of section III. Because she has failed to satisfy this requirement of the local controversy exception, her motion to remand is denied. Accordingly, the Court denies the Plaintiff's motion to remand. A full-text copy of the District Court's June 28, 2018 Order is available at https://tinyurl.com/y8pk62d9 from Leagle.com. Valorie Winn, on behalf of herself and all others similarly situated, Plaintiff, represented by Gregory Weston -- greg@westonfirm.com --& Andrew Christopher Hamilton -- andrew@westonfirm.com -- The Weston Firm. Mondelez International, Inc., Defendant, represented by Christina Avedissian Aryafar -- caryafar@jenner.com -- Jenner & Block LLP, Dean N. Panos -- dpanos@jenner.com -- Jenner And Block LLP & Kenneth Kiyul Lee -- klee@jenner.com -- Jenner & Block LLP. MSG HOLDINGS: Conditional Certification of Intern Class Denied -------------------------------------------------------------- The United States District Court for the Southern District New York denied Plaintiffs' Motion for Conditional Certification in the case captioned CHRISTOPHER FRATICELLI, individually and on behalf of other persons similarly situated who were employed by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Plaintiff, v. MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Defendants, No. 13 Civ. 6518 (HBP) (S.D.N.Y.). The Plaintiffs move for conditional certification of the collective pursuant to 29 U.S.C. Section 216(b). The Plaintiffs worked for the defendants as unpaid interns in various departments and allege that they were uniformly misclassified by the defendants as exempt from the federal and state minimum wage and overtime requirements. The Plaintiffs seek to recover, among other things, unpaid wages, attorney's fees and liquidated damages pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 201 et seq., the New York Labor Law ("NYLL") Sections 650 et seq., NYLL Sections 190 et seq., and Title 12 of the New York Codes, Rules and Regulations, Section 142-2.1. Legal Principles Applicable to Certification of a Rule 23 Class Class certification under Rule 23(a) requires that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the representative parties are typical of the claims of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. If each of these four threshold requirements are met, class certification is appropriate if the action also satisfies one of the three alternative criteria set forth in Rule 23(b). Plaintiffs here claim that class certification is proper under Rule 23(b) (3), which provides that a class action may be maintained where the questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Furman's Denial of 216(b) Conditional Certification On May 7, 2014, Judge Furman denied the plaintiffs' motion for conditional certification of a Section 216(b) collective, concluding that the plaintiffs had failed to make the modest factual showing' that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law. The Plaintiffs next argue that Section 216(b) and Rule 23 conditional certification is appropriate here because the standard is lower when conditional certification is sought in connection with a settlement than when it is sought in connection with an action that is being litigated. Some of the cases plaintiffs cite in this regard are not conditional certification decisions are actually orders that were drafted by the plaintiffs' counsel and issued with minimal, if any, edits. Such orders should be given little precedential value. In any event, the plaintiffs vastly overstate the impact of the settlement on the proposed collective and class certification issues. The Supreme Court and Circuit precedents establish that, other than manageability, the existence of a settlement does not attenuate the requirements for class certification. Moreover, in none of the cases cited by the plaintiff was there an earlier finding, as there was here, that the experiences of the members of the putative collective were so varied that the modest threshold for Section 216(b) had not been met. Given Judge Furman's prior decision, granting conditional 216(b) or class certification here, in the absence of additional evidence demonstrating that members of the collective or class were subject to a common policy or plan that violated the law, would effectively mean that the requirements for Section 216(b) and Rule 23 certification evaporate when there is a settlement. The precedents do not go that far. In support of their contention that conditional certification of the collective and the class is appropriate here because the parties have agreed to a settlement, the plaintiffs rely heavily on the decision of the Honorable Alison J. Nathan, United States District Judge, in Tart v. Lions Gate Entm't Corp., 14 Civ. 8004 (AJN), 2015 WL 5945846 (S.D.N.Y. Oct. 13, 2015), in which she concluded because Amchem teaches that a settlement eliminates the manageability requirement for class certification, the fact that each intern member of a collective or a class has a different intern experience is not sufficient to defeat certification of a settlement class. Tart is distinguishable. There was no prior decision in Tart that the interns' experience was so diverse that the not even the modest threshold for Section 216(b) conditional certification was met. Judge Furman not only found that the wide diversity among the duties performed by interns weighed against conditional certification, he also found that the conclusory declarations offered in support of plaintiffs' claim of commonality were not credible.13 Because plaintiffs have not supplemented the record with evidentiary material filling this lacuna, there is no credible evidence in the record that the experience of the four affiants proffered by plaintiffs was shared by anyone else. The Court appreciate that due to the running of the statute of limitations, the failure to grant conditional certification to the collective and the class will result in the majority of interns who worked for the defendants receiving nothing. However, this unfortunate consequence cannot serve to excuse the plaintiffs' failure to comply with the requirements of Section 216(b) and Rule 23. In the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of even handed administration of the law. Accordingly, for all these reasons, the plaintiffs' application for conditional certification of the 216(b) collective and the putative class is denied. Counsel are directed to report to Court to discuss the next steps to be taken in this matter. A full-text copy of the District Court's July 2, 2018 Opinion and Order is available at https://tinyurl.com/ybvrj5j3 from Leagle.com. Christopher Fraticelli, individually and on behalf of other persons similarly situated who were employed by MSG Holdings, L.P. and The Madison Square Garden Company and/or any other entities affiliated with or controlled by MSG Holdings, L.P. and The Madison Square Garden Compan, Plaintiff, represented by Lloyd Robert Ambinder -- lambinder@vandallp.com -- Virginia & Ambinder, LLP, Charles R. Virginia -- cvirginia@vandallp.com -- Virginia & Ambinder, LLP, Daniel Harris Markowitz, Leeds Brown Law PC, Jeffrey Kevin Brown, Leeds Morelli & Brown, LaDonna Marie Lusher -- llusher@vandallp.com -- Virginia & Ainbinder, LLP, Michael Alexander Tompkins, Leeds Brown Law PC & Suzanne Brooke Klein, Virginia & Ambinder, LLP. Oritt Blum, Fernando Herrera, Scott H. Winter & Kristin Slattery, Plaintiffs, represented by Lloyd Robert Ambinder, Virginia & Ambinder, LLP. MSG Holdings, L.P., The Madison Square Garden Company, and/or any other entities affiliated with or controlled by MSG Holdings, L.P. & The Madison Square Garden Company, Defendants, represented by Ira G. Rosenstein -- ira.rosenstein@morganlewis.com -- Morgan Lewis & Bockius, LLP & Sam Scott Shaulson -- sam.shaulson@morganlewis.com -- Morgan, Lewis & Bockius LLP. MUTUAL OF OMAHA: Can Compel Subpoena Compliance in "Johansen" Suit ------------------------------------------------------------------ In the case, KEN JOHANSEN, on behalf of himself and others similarly situated, Plaintiff, v. MUTUAL OF OMAHA INSURANCE COMPANY, AMERIQUOTE, INC., Defendants, Case No. 3:18-cv-00325-MMD-WGC (D. Nev.), Magistrate Judge William G. Cobb of the U.S. District Court for the District of Nevada granted AmeriQuote's motion to compel compliance with Rule 45 subpoenas. AmeriQuote is a party in a putative class action against it and Mutual of Omaha filed in the U.S. District Court for the Northern District of Georgia. The Plaintiff in the underlying litigation alleges the Defendants made unsolicited calls to the telephones of the Plaintiff and others on the National Do Not Call Registry in violation of the Telephone Consumer Protection Act ("TCPA"). On Oct. 13, 2017, the District Court for the Northern District of Georgia issued an order requiring AmeriQuote to obtain records from third party vendors. AmeriQuote initially served a subpoena on an entity called Insurance Marketing Innovations, Inc. ("IMI"). When AmeriQuote received no response to its subpoenas from IMI, AmeriQuote then served deposition subpoenas to Matthew S. Jones and Anna L. Jones who were officers of IMI. Matthew Jones and Anna Jones were directed by their subpoenas to appear for their depositions on March 8, 2018, at Bonanza Reporting Services, Reno, Nevada. The Joneses appear to be residents of Washoe County, Nevada. The subpoenas were personally served on Feb. 24, 2018. After service of the subpoenas, the counsel for AmeriQuote was initially contacted by Anna Jones and thereafter by John Collier, Esq., who indicated he was representing Matthew and Anna Jones. The counsel for AmeriQuote agreed, at Mr. Collier's request, to vacate the depositions to be reset at a mutually convenient date. AmeriQuote's counsel has heard nothing further from Mr. Collier subsequent to April 23, 2018, despite several follow-up attempts with Mr. Collier. The motion to compel compliance with Rule 45 subpoenas followed. It was initially filed in the unofficial Southern Division of the District of Nevada. Because the deponents and their putative attorney are located in Reno, the Judge Andrew P. Gordon, United States District Judge, ordered the case transferred to the unofficial Northern Division of the District of Nevada. Magistrate Judge Cobb finds that AmeriQuote properly served deposition subpoenas on Matthew and Anna Jones. The time and place of the depositions as set forth in the subpoenas was vacated at the request of the counsel for the Jones. The counsel for AmeriQuote attempted to resolve the matter of rescheduling the depositions, as is required by Fed. R. Civ. P. 37(a)(ii) and LR 26-7(c), to no avail. AmeriQuote's motion to compel is properly filed in the district where compliance is required. Matthew and Anna Jones have waived any objections to the subpoenas by failed to make timely objections. Despite service on attorney Collier, no response to the AmeriQuote motion to compel was received by the U.S. District Court for the District of Nevada. The Magistrate Judge granted AmeriQuote's motion. Matthew S. Jones and Anna L. Jones are ordered to attend the revised time and place for their depositions as may be noticed by the counsel for AmeriQuote. Matthew S. Jones and Anna L. Jones are advised that their failure to attend their depositions, and/or to produce the identified documents, may result in a contempt of court order of the Court. The Clerk will send a copy of the Order to the names and addresses listed on AmeriQuote's Certificate of Service. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/AROysZ from Leagle.com. Ken Johansen, Plaintiff, pro se. Ameriquote, Inc., Defendant, represented by Beth A. Cook -- bcook@skanewilcox.com -- Skane & Wilcox, Elizabeth A. Skane -- eskane@skanewilcox.com -- Skane Wilcox LLP, Matthew N. Foree -- mforee@fmglaw.com -- Freeman Mathis & Gary LLP & Josh H. Goselin -- jgoselin@fmglaw.com -- Freeman Mathis & Gary LLP, pro hac vice. NCAA: 7th Cir. Affirms Dismissal of Residence Rule Suit ------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, affirmed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned PETER DEPPE, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant-Appellee, No. 17-1711 (7th Cir.). This case raises an antitrust challenge to the NCAA's year in residence rule, which requires student-athletes who transfer to a Division I college to wait one full academic year before they can play for their new school. A Division I football player filed a class-action lawsuit alleging that the rule is an unlawful restraint of trade in violation of Section 1 of the Sherman Act. The NCAA moved to dismiss the complaint under Rule 12(b)(6), arguing that the year-in-residence bylaw is an eligibility rule and thus is presumptively pro-competitive under Board of Regents and Agnew and need not be tested for anticompetitive effect under a full rule-of-reason analysis. The district judge agreed and dismissed the case. Section 1 of the Sherman Act declares illegal every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.To prevail in a suit alleging a violation of Section 1, the plaintiff must prove three elements: (1) a contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in [a] relevant market; and (3) an accompanying injury. Agnew, 683 F.3d at 335 (quoting Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217, 1220 (7th Cir. 1993)). Deppe insists that the year-in-residence rule does not fit within the contours of a traditional eligibility bylaw. On the contrary, the rule falls neatly in line with other rules courts have characterized as eligibility rules. In Agnew, the Court gave the example of a class-attendance requirement to explain why eligibility rules are entitled to a pro-competitive presumption. The Agnew court said: "There may not be such a thing as a student athlete, for instance, if it was not for the NCAA rules requiring class attendance, and thus no detailed analysis would be necessary to deem such rules pro-competitive. Bylaws that have been classified as eligibility rules include: a bylaw revoking a student-athlete's eligibility to compete if he enters the professional draft or hires a professional agent, a rule allowing the suspension of a college football program for illicitly compensating players beyond scholarships and a bylaw making student-athletes ineligible to compete at a graduate school different from their undergraduate institution." The Court had no difficulty concluding that the year-in-residence bylaw is an eligibility rule. Next, Deppe argues that the NCAA enforces the year-in-residence requirement for economic reasons and not to preserve the product of college football. He asks the Court to infer an economic motive from the fact that the one-time transfer exception is unavailable to most Division I football, basketball, and ice-hockey players, the highest-revenue sports programs in the NCAA. This argument ignores the innocent explanation that these are precisely the athletes who are most vulnerable to poaching. Without transfer restrictions, the players in these high-revenue sports could be traded like professional athletes. In sum, the year-in-residence rule is, on its face, a presumptively pro-competitive eligibility rule under Agnew and Board of Regents. Accordingly, a full rule-of-reason analysis is unnecessary. Deppe's Sherman Act challenge to the NCAA's year-in-residence bylaw fails on the pleadings. A full-text copy of the Seventh Circuit's June 25, 2018 Opinion is available at https://tinyurl.com/ydcf68o5 from Leagle.com. Gregory L. Curtner -- gcurtner@rshc-law.com -- for Defendant-Appellee. Steve W. Berman -- steve@hbsslaw.com -- for Plaintiff-Appellant. Kathy L. Osborn -- kathy.osborn@FaegreBD.com -- for Defendant-Appellee. Elizabeth Anne Fegan -- BETH@HBSSLAW.COM -- for Plaintiff-Appellant. Daniel Pulliam -- daniel.pulliam@FaegreBD.com -- for Defendant-Appellee. NESTLE WATERS: Court Narrows Claims in A. Geis' Suit ---------------------------------------------------- The United States District Court for the District of Massachusetts granted in part and denied in part Defendant's Motion to Dismiss the case captioned ALEXIS GEIS, individually and on behalf of all others similarly situated, KARA LYNDON, and TIFFANY MORRIS, Plaintiffs, v. NESTLE WATERS NoRTH AMERICA, INC. and SCOTT KELLY, Defendants, Civil Action No. 17-12165-PBS (D Nev.). Nestle Waters North America, Inc. (NWNA) filed a motion to dismiss Counts I-IV, based on lack of personal jurisdiction, lack of subject-matter jurisdiction, and a failure to state claims upon which relief can be granted. Alexis Geis brings this class action against Nestle Waters North America, Inc., alleging that NWNA failed to honor one-year agreements for lower prices on its products. In the First Amended Complaint, Geis asserts four counts on behalf of a putative class: Count I (breach of contract); Count II (violation of Mass. Gen. Laws ch. 93A, Section 11); Count III (fraud); and Count IV (violation of Mass. Gen. Laws ch. 93A, Section 9). NWNA moved to dismiss Geis's FAC on three grounds: (1) lack of personal jurisdiction; (2) lack of subject-matter jurisdiction; and (3) failure to state a claim upon which relief can be granted. Massachusetts Long-Arm Statute The Massachusetts long-arm statute permits a court to exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's transacting any business in this commonwealth. To determine the reasonableness of exercising personal jurisdiction, the Court looks to the gestalt factors: (1) the burden on the defendant (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies. NWNA disputes this Court's specific personal jurisdiction under all three elements of the Due Process Clause test. The Court holds that it has specific jurisdiction over NWNA. Subject-Matter Jurisdiction Legal Standards Rule 12(b)(1) motions ask a court to dismiss a case for lack of subject-matter jurisdiction. The irreducible constitutional minimum of standing has three elements: (1) injury in fact; (2) causation; and (3) redressability. An injury in fact must be both concrete and particularized and actual or imminent. NWNA maintains that Geis lacks Article III standing to pursue Count II and Count IV under chapter 93A because she has never lived in Massachusetts, has not suffered an injury in the state, and is not protected by its laws. NWNA relies on caselaw holding that named plaintiffs do not have standing to bring actions under the consumer protection statutes of different states. An injury under chapter 93A may be either economic or noneconomic. To demonstrate a cognizable economic injury, a plaintiff only must show real economic damages, as opposed to some speculative harm. A plaintiff's complaint must plead objective, identifiable harm that goes beyond the defendant's alleged deception itself. Here, Geis has claimed that she lost money as a result of the allegedly deceptive practices that arose from the Massachusetts call center. This is enough to allege an injury in fact for Article III standing purposes. Failure to State a Claim Legal Standard In evaluating a Rule 12(b)(6) motion, the Court must accept the factual allegations in the plaintiff's complaint as true, construe reasonable inferences in its favor, and determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted. Breach of Contract (Count I) NWNA asserts that Geis fails to state a claim for breach of contract because she does not append a contract to her FAC, does not plausibly establish the existence of a valid oral agreement and does not "properly allege the damages element.” These arguments do not hold water. First, Geis was not obligated to attach a written contract to her complaint, as the alleged oral agreement negotiated by the NWNA call center representative for lower water prices is the relevant contract. To adequately plead a breach of contract claim under Massachusetts law, a plaintiff need only allege "that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.” Geis has alleged that, in return for her agreeing to continue using NWNA as her water supplier, an NWNA call center representative orally promised to reduce the price of her water for one year. This agreement is memorialized in call notes, according to Geis. She also alleges that NWNA breached that agreement when it increased the prices just a few months later. The FAC states that Geis paid the increased prices without knowing and thus lost money as a result of the alleged breach. Accordingly, Geis has pleaded all elements of a breach of contract claim, including damages. Mass. Gen. Laws ch. 93A, Section 11 (Count II) NWNA also argues that Geis's claim under Mass. Gen. Laws ch. 93A, Section 11 fails because she does not engage in trade or commerce and therefore does not have statutory standing. On this point, NWNA is correct. Section 11 allows private causes of action under chapter 93A by any person who engages in the conduct of any trade or commerce. There is no indication in the FAC that Geis was acting in a business context when she purchased her water from NWNA. The FAC states only that "Geis is an individual who resides at 8 Boston Lane, Palm Coast, Florida. Because section 11 affords no relief to consumers, Geis cannot bring a claim under this section. Fraud (Count III) NWNA next argues that Geis does not meet Rule 9(b)'s particularity requirement for her fraud count and that the economic loss theory precludes a fraud claim. Neither argument justifies dismissal of Count III. Geis has also claimed that the alleged false statement was made over the phone by an NWNA agent who worked at the Raynham call center. In some cases, the First Circuit has required a plaintiff to specify the name of the person who made the allegedly fraudulent misrepresentation. Instead of giving an individual's name, Geis has alleged that promising one-year pricing terms was a company-wide policy followed by all call center representatives, and that a representative did in fact promise her a one-year term on the day she called. The Court will not dismiss the fraud claim for Geis's failure to include a specific name, as the allegations in the FAC satisfy the purposes of Rule 9(b). Mass. Gen. Laws ch. 93A, Section 9 (Count IV) A claim under Section 9 requires, at a minimum, a showing of (1) a deceptive act or practice on the part of the seller; (2) an injury or loss suffered by the consumer; and (3) a causal connection between the seller's deceptive act or practice and the consumer's injury. NWNA's final argument is that the chapter 93A claim is another recast of a simple billing dispute and must be dismissed. NWNA is correct that a mere breach of contract is not an unfair or deceptive act or practice. But here, Geis has alleged more: that there was a false representation about the one-year agreements, and also that upper management knew that it was breaching one-year agreements with customers and was trying to sneak the breach past them. These are the types of unfair and deceptive acts at which chapter 93A is targeted. Accordingly, the motion to dismiss is allowed with respect to the claim for violation of Mass. Gen. Laws ch. 93A, Section 11 (Count II), and is denied in all other respects. NWNA's motion to dismiss Counts I-III of Plaintiffs' original complaint is denied as moot. A full-text copy of the District Court's July 2, 2018 Memorandum and Order is available at https://tinyurl.com/yb34vohp from Leagle.com. Alexis Geis, individually and on behalf of all others similary situated, Kara Lyndon & Tiffany Morris, Plaintiffs, represented by Christopher J. Trombetta, Law Office of Christopher J. Trombetta. Nestle Waters North America, Inc., Defendant, represented by Lauren M. Papenhausen -- lauren.papenhausen@whitecase.com -- White & Case, LLP, Lisa Stephanian Burton -- lisa.burton@ ogletree.com -- Ogletree, Deakins, Nash, Soak & Stewart, P.C., Bryan A. Merryman -- bmerryman@whitecase.com -- White & Case LLP, pro hac vice, Julian A. Lamm -- jlamm@whitecase.com -- White & Case LLP, pro hac vice, Michael Kendall- michael.kendall@whitecase.com -- White & Case, LLP, Nailah Freeman -- nailah.freeman@ ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C. & Samuel R. Feldman -- samuel.feldman@whitecase.com -- White & Case, LLP. Scott Kelly, Defendant, represented by Lisa Stephanian Burton -- lisa.burton@ ogletree.com -- Ogletree, Deakins, Nash, Soak & Stewart, P.C. & Nailah Freeman -nailah.freeman@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C.. NEW PENN FINANCIAL: Chong Sues over Force-Placed Insurance ---------------------------------------------------------- DOROTHY KERR CHECA CHONG, individually and on behalf of all others similarly situated, Plaintiff v. NEW PENN FINANCIAL, LLC d/b/a SHELLPOINT MORTGAGE SERVICING, Defendant, Case No. 9:18-cv-80948-RLR (S.D. Fla., July 18, 2018) seeks to recover damages that the class has suffered as a result of Defendant's wrongful conduct in manipulating the consumer market through collusive agreements involving kickback arrangements and other forms of improper compensation and their standard practice of charging borrowers undisclosed and illegitimate costs in connection with force-placed insurance. The Plaintiff alleges in the complaint that the Defendant engaged in a pattern of unlawful and unconscionable profiteering and self-dealing in the purchase and placement of force-placed, or lender-placed, insurance ("FPI") coverage on behalf of its borrowers in Florida and throughout the country. The Defendant enters into exclusive agreements with insurance agents such as Overby-Seawell Company ("OSC") and Proctor Financial Inc. ("Proctor") to monitor the entire Defendants' loan portfolio and issue certificates of insurance through exclusive, single-interest master policies procured through surplus lines insurers National Fire & Marine Insurance Company, IronShore Europe Limited, and Certain Underwriters at Lloyd's, London. These exclusive master policies cover the entire the Defendant's portfolio. Because these insurers are surplus lines insurers, they do not file their rates with the state of Florida and therefore the filed rate doctrine does not apply. The FPI Insurers and Agents provide the Defendant with various kickbacks that the Defendant attempts to disguise as legitimate compensation. These kickbacks include, but are not limited to, one or more of the following: (1) unearned "commissions" paid to the Defendant or an affiliate for work purportedly performed to procure individual policies; (2) "expense reimbursements" allegedly paid to reimburse the Defendant for expenses it incurred in the placement of force-placed insurance coverage on homeowners; (3) free or below-cost mortgage-servicing functions that FPI Insurers and Agents perform for the Defendant that often have nothing to do with the placement of insurance coverage; and (4) payments of illusory reinsurance premiums that carry no commensurate transfer of risk. Because of these kickbacks, the Defendant essentially receives a rebate on the cost of the force-placed insurance; however, the Defendant's homeowners ultimately bear the cost of these kickbacks because the Defendant does not pass on these rebates to the borrowers. The charges for FPI are deducted from borrowers' escrow accounts and the Defendant attempts to disguise the kickbacks as legitimate when, in fact, they are unearned, unlawful profits. New Penn Financial, LLC offers mortgage lending products and services in the United States. The company was incorporated in 2007 and is based in Plymouth Meeting, Pennsylvania with locations across the United States. As of June 2, 2011, New Penn Financial, LLC operates as a subsidiary of Shellpoint Partners LLC. [BN] The Plaintiff is represented by: Adam Moskowitz, Esq. Howard M. Bushman, Esq. Joseph M. Kaye, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com howard@moskowitz-law.com joseph@moskowitz-law.com PEPSI-COLA SALES: Ct. Needs Supplemental Brief in S. Helton's Suit ------------------------------------------------------------------ The United States District Court for the Northern District of California directed the parties in the case captioned NATHANIEL HELTON, Plaintiff, v. PEPSI-COLA SALES AND DISTRIBUTION, INC., et al., Defendants, Case No. 17-cv-01135-EMC (N.D. Cal.) to submit a joint supplemental brief in relation to the motion for preliminary approval. The settlement class is defined somewhat differently, namely, all Drivers which is inclusive of Bulk Drivers, Delivery Bay Drivers, Drivers, Delivery Drivers, Delivery Driver Trainees, Relief Drivers, GEOBox Drivers, FSV Drivers, and Transport Drivers employed by New Bern in California at any point between January 25, 2013, and the date the Court issues an order preliminarily approving the settlement. Mr. Helton acknowledges at least one difference in the class definitions, stating that the settlement class definition is more specific than the language used to refer to drivers in the SAC, lending more clarity to the particular individuals included within the Class. However, Mr. Helton does not address another difference, i.e., the SAC class definition refers to employees to all three defendants while the settlement class definition refers to employees of New Bern only. The Court directs the parties to address this difference in their joint supplemental brief. For example, are any drivers actually employed by the two Pepsi defendants, or is New Bern the only employer of drivers and the two Pepsi defendants are simply affiliated companies? What is the exact relationship among the three defendant companies? The Court notes that the releases in the settlement agreement apply to all three defendants. The motion discusses litigation risks associated with each of the asserted claims. The Court orders the parties to address the following issues related to the litigation risks. 1. According to New Bern, there are penalties if employees do not comply with the written policies on rest and meal breaks. The parties shall explain what those penalties are. 2. New Bern indicates that, if the case were litigated, it would argue that it is exempt from the rest and meal period requirements based on California Labor Code Sections 514 and 512. The parties shall explain what evidence there is to suggest that those exemptions apply. In IX(12)(f)(2) of the settlement agreement, the parties require an individual who wishes to exclude herself to state in substance that she (1) has read the class notice, (2) wishes to opt out of the settlement, and (3) understands that, by opting out, she is not bound by the judgment and is not entitled to any payment from the settlement. The parties shall address why (3) is necessary (i.e., why (1) and (2) are not sufficient). The settlement agreement allows Defendants to opt out if the requests for exclusion total in number more than the number specified in a separate Supplemental Agreement between the Parties. The parties shall lodge (not file) under seal a copy of the Supplemental Agreement with the Court. Under the settlement agreement, the State Law Awards and Federal Law Awards will be reduced by any legally-required employee and/or employer-owed state and federal withholding taxes or other applicable payroll deductions. The parties shall address what is the amount of the average deduction that will be taken. The settlement agreement provides that checks are valid and negotiable for 120 days. The parties shall address whether that time period should be extended to 180 days. Under the settlement agreement, Mr. Helton may be awarded an incentive fee not to exceed $7,500. Mr. Helton shall address how much time he personally has spent on the litigation of this case. He shall also clarify whether he is a current or former employee of any defendant. The settlement agreement provides that class counsel may be awarded up to 25% of the gross settlement fund. Although the Court is not requiring Mr. Helton to file a fee motion at this juncture, it does need more information from Mr. Helton regarding the fee request. In particular, Mr. Helton must provide information about the lodestar in this case. A full-text copy of the District Court's June 28, 2018 Order is available at https://tinyurl.com/yatg8zmc from Leagle.com. Nathaniel Helton, 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 Law Firm, APLC, Jamie Kathryn Serb -- jserb@turleylawfirm.com -- The Turley Law Firm, William David Turley -- bturley@turleylawfirm.com -- The Turley Law Firm, APLC & Tony Roberts -- troberts@turleylawfirm.com -- The Turley and Mara Law Firm, APLC. Pepsi-Cola Sales and Distribution, Inc., New Bern Transport Corporation & PepsiCo, Inc., Defendants, represented by Daniel Francisco De La Cruz -- ddelacruz@shepparmullin.com -- Sheppard, Mullin, Richter, Hampton, LLP, Samantha D. Hardy -- shardy@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton & Ashley Teiko Hirano -- ahirano@sheppardmullin.comj -- Sheppard Mullin Richter and Hampton LLP. PHILLIPS 66 COMPANY: Underpays Production Workers, Suit Claims -------------------------------------------------------------- TIMOTHY GREEN, individually and on behalf of all others similarly situated, Plaintiff v. PHILLIPS 66 COMPANY, and DOES 1-50, inclusive, Defendants, Case No. BC713777 (Cal. Super., Los Angeles Cty., July 23, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Green was employed by the Defendants as production employee in their Santa Maria, California refinery, from April 2014 to November 2017. Phillips 66 Company is a Delaware corporation engaged in owning and operating as an energy manufacturer and logistics company. The Company owns and operates refineries in San Francisco, Santa Maria, and Los Angeles, California. [BN] The Plaintiff is represented by: James Hawkins, Esq. Gregory Mauro, Esq. Michael Calvo, Esq. JAMES R. HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com Michael@jameshawkinsaplc.com ROSEMONT REALTY: South Point Wins Summary Ruling in ADEA Suit ------------------------------------------------------------- The United States District Court for the Western District of Louisiana, Lafayette Division, granted the Motion for Summary Judgment filed by Rosemont Realty ("Rosemont"), Jack Stahl Company, LLC ("Jack Stahl"), South Point Operating Associates, LP ("South Point"), and Cheryl Willoughby ("Willoughby"), in the case captioned ORAY BREAUX, JR., MICHAEL CAMERON, v. ROSEMONT REALTY ET AL. Civil Action No. 14-2265 (LEAD), No. 14-2268 (MEMBER) (W.D. La.). The Plaintiffs' are former maintenance technicians at South Point Apartments in Lafayette, Louisiana. The remaining claims are: (1) age discrimination under the Age Discrimination in Employment Act (ADEA) (2) retaliation under the Louisiana Environmental Whistleblower Act (LEWA) (3) breach of duty to provide a safe work place pursuant to La. Rev. Stat. 23:13; and (4) damages caused by ruin of building per La. Civ. Code art. 2322. Age Discrimination Claim The ADEA makes it unlawful for an employer to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of age. To establish a prima facie case of an ADEA claim, a plaintiff must show that (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age. Cameron argues that he has established a prima facie case of age discrimination. The record demonstrates that Cameron was qualified for the position of maintenance technician. Cameron was within the protected class, age 56, and he was discharged. However, Cameron cannot establish the fourth prong of his prima facie case because the employee he identified as his replacement, Anthony Trahan, was hired before Cameron's termination. It is Cameron's belief that Trahan was hired to replace him because things were going on that they were considering terminating me for. Cameron's subjective speculation is insufficient to establish that he was replaced by a significantly younger individual. Cameron has also failed to provide competent summary judgment evidence to demonstrate that he was otherwise discharged because of age" by establishing that a comparable employee benefited from disparate treatment under nearly identical circumstances. Cameron was asked during his deposition whether he believed other employees were treated better than him or were given preferential treatment, to which be responded: “Generally, I would say no. I would say that, you know, I didn't think I—I—they were given preferential treatment. There were certain instances of people who would work that, you know, noticeably had it easier than other people. You know, they weren't assigned, like, dirty jobs and stuff like that.” This testimony is insufficient to establish disparate treatment because a comparator has not been identified. Cameron did provide evidence of alleged comments by an unidentified maintenance technician who referred to him as grandpa and old man. However, remarks made by co-workers without authority or influence over the employment decision are insufficient to defeat summary judgment of his claim for wrongful termination under the ADEA. Accordingly, this Court finds that Cameron has failed to establish a prima facie case. Cameron has offered no additional evidence to suggest that Defendants' proffered reason is false or unworthy of credence. There is simply insufficient evidence to establish or even suggest that Cameron's age was the but-for cause of his termination. Therefore, Cameron's ADEA claim is hereby dismissed. Breaux also argues that he has established a prima facie case of discrimination. The record demonstrates that Breaux was qualified for the position of maintenance technician. Breaux was within the protected class, age 56, and he was discharged. However, Breaux has not established that he was replaced by someone younger, or outside the protected class, with competent summary judgment evidence. Breaux alleges that Koateska was hired to replace him, even though Koateska was hired before his termination. Breaux stated in his deposition that Koateska told him that he was hired to replace him, and that Koateska learned of this information directly from Willoughby. The Defendants argue that Breaux's account of what Koateska allegedly stated regarding his employment is rank hearsay and should not be considered competent summary judgment evidence. Breaux did not respond to this objection in his opposition brief. The alleged statement by Koateska is hearsay evidence because Breaux offers the statement for the truth for which it is asserted. Accordingly, this statement cannot be considered for purposes of this motion. Breaux has also failed to provide competent summary judgment evidence to demonstrate that he was otherwise discharged because of his age by establishing that a comparable employee benefited from disparate treatment under nearly identical circumstances. Breaux testified that Betsy Primeaux treated him differently than the other maintenance technicians by placing unnecessary restrictions upon him, such as telling him not to talk to the other technicians while the other technicians could talk to each other. Breaux also testified that Kerri Primeaux treated him differently by assigning him tasks suitable for an old man by giving him assignments that were slow while giving harder assignments to the other technicians. Breaux also testified that Kerri Primeaux treated him as if he had Alzheimer's or something by repeating herself to him. Breaux believed Betsy Primeaux and Kerri Primeaux were trying to make me quit I think, because the treatment didn't match the behavior. These allegations do not identify a comparator, nor do they offer a comparison under nearly identical circumstances. Accordingly, Breaux's ADEA claim is dismissed. IBreach of Duty to Provide Safe Workplace The Louisiana Workers' Compensation statute provides that an employer is responsible for compensation benefits to an employee who receives a personal injury by accident arising out of and in the scope and course of his employment. An employer is also responsible for every employee who is disabled because of the contraction of an occupational disease arising out of and in the course of his employment. An occupational disease is defined as a disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. The Plaintiffs in this case allege injuries consistent with an occupational disease as defined by La. Rev. Stat. 23:1031.1(B). Plaintiffs were hired as maintenance technicians, whose primary job duties included servicing and repairing HVAC systems. Plaintiffs were also required to perform necessary repairs inside the apartment units. As part of their duties, the Plaintiffs cleaned the AC units when requested to do so, and during the cleaning process the Plaintiffs came into direct contact with mold. Cameron testified that when he cleaned the AC units he would see mold in the AC units, including the condenser, evaporator, and drain pans. Breaux testified that he was required to clean the AC coils to stop mold from growing. Breaux also testified that he came into contact with mold when he was required to do sheetrock work. Cameron testified that mold was also present in the apartment units around windows, bathtubs, toilets, and under the linoleum floors. Breaux testified to the presence of mold in the subfloors and ceilings of the apartments. Breaux testified that the maintenance crew received work orders about water leaks on a daily basis, and orders related to mold once or twice a week. Cameron also testified that the maintenance crew received work orders regarding mold in apartment units. This Court does not view the degree of the mold encountered to be dispositive on this issue. Even if the Court were to assume that all of the Plaintiffs' allegations are indeed true and South Point's facilities contained excessive mold, there is no right to relief under La. Rev. Stat. 23:13. The Plaintiffs allege that they encountered mold during the course of performing their work duties. Any injury or illness resulting therefrom is squarely within the realm of Workers' Compensation. The Plaintiffs' sole remedy is to file a claim for Workers' Compensation. Accordingly, Plaintiffs' La. Rev. Stat. 23:13 claims against South Point are dismissed. Ruin of Building Claim A plaintiff must prove the following elements to hold the owner of a building liable for damages: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; (5) causation, and (6) the ruinous building created and unreasonable risk of harm. The evidence in the record demonstrates that South Point owned the apartment complex in question. Willoughby testified that South Point purchased the apartment complex in 1999 or 2000. Because La. Civ. Code art. 2322 is only applicable to building owners, Plaintiffs' claims against Jack Stahl and Cheryl Willoughby must be dismissed. Louisiana Environmental Whistleblower Claim The Plaintiffs have also asserted claims pursuant to the Louisiana Environmental Whistleblower Act (LEWA). The LEWA provides in pertinent part as follows: A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency shall act in a retaliatory manner against an employee, acting in good faith, who does any of the following: (1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation.(2) Provides information to, or testifies before any public body conducting an investigation, hearing, or inquiry into any environmental violation by the employer, or another employer with whom there is a business relationship, of an environmental law, rule, or regulation. The five elements required for a cause of action under LEWA are as follows: (1) employee acts in good faith; (2) employee reports, or threatens to report a violation; (3) employee reasonably believes the activity, policy, or practice undertaken by his employer, or another employer with whom there is a business relationship with his employer, is a violation of an environmental law; (4) employee reports or threatens to report the violation to a supervisor or to a public body of the employer; and (5) employer acts in retaliatory manner because the employee reported or threatened to report a violation. There is no evidence of temporal connection between Cameron's complaints and his termination. Like Breaux, Cameron also reported violations to management throughout his tenure with South Point. He stated that he requested OSHA compliant respirators and reported Freon issues immediately after he was hired. There is simply insufficient evidence to establish a causal connection between the Plaintiffs' protected activity and their termination. As such, this Court finds that Plaintiffs have failed to establish a prima facie case for violations of LEWA. Even if a prima facie case were established, the Defendants offered legitimate non-discriminatory reasons for the Plaintiffs' termination. The Defendants assert that Cameron was terminated for frequent absences and serious performance issues. The Defendants assert that Breaux was terminated for insubordination in direct response to his letter regarding the DAR in which he suggested that Betsy Primeaux was stupid. The uncontested facts surrounding Breaux's termination stand as uncontroverted. The burden is shifted back to the Plaintiffs to provide sufficient evidence to suggest that their protected activity was the but-for cause of their termination. To avoid summary judgment, the Plaintiffs must show a conflict in substantial evidence' on the question of whether the employer would not have taken the action but-for' the protected activity. The Plaintiffs have not met this burden. There is no evidence in the record to suggest that the Plaintiffs' protected activity was even considered by South Point when their employment was terminated. Accordingly, the Plaintiffs' LEWA claims are dismissed. A full-text copy of the District Court's July 2, 2018 Memorandum is available at https://tinyurl.com/y7wugmcs from Leagle.com. Oray Breaux, Jr, Plaintiff, represented by DeVonn Harry-Joseph Jarrett, Jarrett Law Group. Mike Cameron, Consol Plaintiff, represented by Wendell C. Woods, Law Office of Wendell C Woods & DeVonn Harry-Joseph Jarrett, Jarrett Law Group. South Point Operating Associates L P, Rosemont Realty, doing business as, Jack Stahl Co L L C & Cheryl Willoughby, Defendants, represented by David K. Theard -- dtheard@joneswalker.com -- Jones Walker & Thomas P. Hubert -- thubert@joneswalker.com -- Jones Walker. South Point Apartments, doing business as, Defendant, represented by David K. Theard, Jones Walker. SCAN HEALTH PLAN: Fails to Pay Proper OT, Greenwood Suit Says ------------------------------------------------------------- LARRY GREENWOOD, individually and on behalf of all others similarly situated, Plaintiff v. SCAN HEALTH PLAN; and DOES 1 through 100, inclusive, Defendants, Case No. BC715157 (Cal. Super., Los Angeles Cty., July 25, 2018) seeks to recover from the Defendants unpaid overtime compensation, meal and rest period premiums, and minimum wages. Greenwood was employed by the Defendants as an hourly-paid, and non-exempt employee from June 2014 to January 2016, in Los Angeles, California. SCAN Health Plan, Inc. provides health plans to members in California. It offers Medicare Advantage Plans, as well as plans for individuals who are dually eligible for Medicare and Medi-Cal (D-SNP). The company also offers Healthy At Home (HMO SNP) and VillageHealth (HMO SNP/HMO POS-SNP) plans. It sells its plans through brokers and agents. SCAN Health Plan, Inc. was founded in 1977 and is headquartered in Long Beach, California. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 SECURITY LIFE: Advance Trust Sues over Excessive Cost of Insurance ------------------------------------------------------------------ ADVANCE TRUST & LIFE ESCROW SERVICES, LTA, as securities intermediary for LIFE PARTNERS POSITION HOLDER TRUST, on behalf of itself and all others similarly situated, Plaintiff v. SECURITY LIFE OF DENVER INSURANCE COMPANY, Defendant, Case No. 1:18-cv-01897 (D. Colo., July 26, 2018) alleges that the Defendants unlawfully and excessively charged the Plaintiff for cost of insurance. According to the complaint, in September 2015, the Defendant sent letters to policyholders notifying them of significant cost of insurance increases for the policies. The increase imposed on the policies was a massive 42%, which is costing the Plaintiff hundreds of thousands of dollars each year. The Defendant's letters to policyholders were deliberately cryptic as to the reasons for the increases, making no mention of mortality experience and stating only that "[t]he increase in the cost of insurance rates was made in response to the increase in the anticipated cost of providing future coverage." In sum, the Defendant has violated the terms of the policies by failing to base cost of insurance rates on the projected cost of insurance. In the face of the substantially improved mortality experience that has benefited the Defendant enormously, it has not only failed to reduce cost of insurance rates -- it has increased them. The Defendant apparently believes that it has the right to load cost of insurance rates with profit margins and other impermissible considerations unrelated to the actual costs of insurance, despite imposing separate charges for profits and expenses. As a result of the Defendant's misconduct, the Plaintiff was being forced to pay unlawful and excessive cost of insurance charges. Security Life of Denver Insurance Company provides life and health insurance products and services for individuals, professionals, and business owners. The company was formerly known as Security Life and Accident Company and changed its name to Security Life of Denver Insurance Company in May 1981. The company was incorporated in 1928 and is based in Atlanta, Georgia. Security Life of Denver Insurance Company operates as a subsidiary of Voya Financial, Inc. [BN] The Plaintiff is represented by: Paul H. Schwartz, Esq. Jonathan A. Helfgott, Esq. SHOEMAKER GHISELLI + SCHWARTZ LLC 1811 Pearl Street Boulder, CO 80302 Telephone: (303) 530-3452 E-mail: pschwartz@sgslitigation.com - and - Steven G. Sklaver, Esq. SUSMAN GODFREY LLP 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: ssklaver@susmangodfrey.com - and - Ryan Kirkpatrick, Esq. Seth Ard, Esq. SUSMAN GODFREY LLP 1301 Avenue of the Americas, 32nd Floor New York, NY 10019-6023 Telephone: (212) 336-8330 Facsimile: (212) 336-8340 E-mail: rkirkpatrick@susmangodfrey.com sard@susmangodfrey.com - and - Stephen E. Morrissey, Esq. SUSMAN GODFREY LLP 1201 Third Avenue, Suite 3800 Seattle, WA 98101 Telephone: (206) 516-3880 Facsimile: (206) 516-3883 E-mail: smorrissey@susmangodfrey.com SECURITY PROS: Underpays Security Guards, Morrison Suit Claims -------------------------------------------------------------- CODY MORRISON, individually and on behalf of all others similarly situated, Plaintiff v. SECURITY PROS PRIVATE SECURITY; WENDAN PS; and DOES 1 through 50, inclusive, Defendants, Case No. 18CECG02751 (Cal. Super., Fresno Cty., July 25, 2018) is an action against the Defendants for failure to provide accurate itemized wage statements, provide off-duty meal and rest periods, premium pay for missed breaks, and timely pay wages. The Plaintiff Morrison was employed by the Defendants as security guards from March 16, 2018 to May 5, 2018. Security Pros Private Security is a California corporation engaged in providing security services in the State of California. [BN] The Plaintiff is represented by: William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 - and – Dennis S. Hyun, Esq. HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 SIMM ASSOCIATES: Court Stays J. Brotz's Suit Pending Mediation -------------------------------------------------------------- The United States District Court for the Middle District of Florida, Orlando Division, stays the case captioned JOYCE LORRAINE BROTZ, Plaintiff, v. SIMM ASSOCIATES, INC., Defendant, Case No. 6:17-cv-1603-Orl-40TBS (M.D. Fla.), pending mediation between the parties. A full-text copy of the District Court's June 25, 2018 Order is available at https://tinyurl.com/yb7jmxdb from Leagle.com. Joyce Lorraine Brotz, Individually and on behalf of a class of persons similarly situated, Plaintiff, represented by Brian W. Warwick -- bwarwick@varnellandwarwick.com -- Varnell & Warwick, PA, Donald Edward Petersen, Law Office of Donald E. Petersen & Janet R. Varnell, Varnell & Warwick, PA. Simm Associates, Inc., a Delaware corporation, Defendant, represented by Dale Thomas Golden -- dgolden@gsgfirm.com -- Golden Scaz Gagain, PLLC, Graeme E. Hogan -- manlawfirm.com -, Fineman, Krekstein & Harris, PC, pro hac vice, Joseph C. Proulx -jproulx@gsgfirm.com -- Golden Scaz Gagain, PLLC & Richard J. Perr -- rperr@finemanlawfirm.com -- Fineman, Krekstein & Harris, PC, pro hac vice. SPRINT CORP: Underpays Operations Specialists, Oliphant Says ------------------------------------------------------------ DAKOTA OLIPHANT, individually and on behalf of all others similarly situated, Plaintiff v. SPRINT CORPORATION; and SPRINT/UNITED MANAGEMENT COMPANY, Defendants, Case No. 8:18-cv-00353-JMG-MDN (D. Neb., July 24, 2018) alleges that the Defendants failed to pay overtime compensation and the regular pay for actual hours worked under the Fair Labor Standards Act. The Plaintiff Oliphant was employed by the Defendants as operations specialist from August 2017 to April 1, 2018. Sprint Corporation, together with its subsidiaries, provides various wireless and wireline communications products and services to consumers, businesses, government subscribers, and resellers in the United States, Puerto Rico, and the United States Virgin Islands. Sprint Corporation offers its services under the Sprint, Boost Mobile, Virgin Mobile, and Assurance Wireless brands. The company was founded in 1899 and is headquartered in Overland Park, Kansas. Sprint Corporation is a subsidiary of SoftBank Group Corp. [BN] The Plaintiff is represented by: William B. Zastera, Esq. Aimee L. Lowe, Esq. VANDENACK WEAVER LLC 17007 Marcy Street, Suite 3 Omaha, NE 68118 Telephone: (402) 504-1935 E-mail: wzastera@vwattys.com alowe@vwattys.com SSF IMPORTED: Fails to Pay Proper Wages, Lopez Suit Alleges ----------------------------------------------------------- JOSE M. LOPEZ, individually and on behalf of all others similarly situated, Plaintiff v. SSF IMPORTED AUTO PARTS, LLC; and DOES 1 through 10, inclusive, Case No. BC715154 (Cal. Super., Los Angeles Cty., July 24, 2018) is an action against the Defendants for failure to pay overtime wages at the correct rate, minimum wage, provide proper wage statements, provide meal and rest periods, and timely pay final wages at termination. Mr. Lopez was employed by the Defendants as warehouse employee from November 16, 2017 to June 13, 2018. SSF Imported Auto Parts LLC distributes auto replacement parts to the European automotive repair industry. It also serves customers via online. The company was founded in 1976 and is based in South San Francisco, California with warehouses in San Francisco, Carson, Irvine, Los Angeles, and San Diego, California; and Phoenix, Arizona. [BN] The Plaintiff is represented by: Kane Moon, Esq. Justin F. Marquez, Esq. Allen Feghali, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com justin.marquez@moonyanglaw.com allen.feghali@moonyanglaw.com SUKAR AND SONS: Fails to Pay Proper Wages, Ramirez Suit Alleges --------------------------------------------------------------- ABBY RAMIREZ, individually and on behalf of all others similarly situated, Plaintiff v. SUKAR AND SONS OF CALIFORNIA; SUGAR AND SONS OF CALIFORNIA, INC.; and DOES 1 through 100, inclusive, Case No. BC715061 (Cal. Super., Los Angeles Cty., July 25, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Ramirez was employed by the Defendants as non-exempt employee in California. Sukar & Sons Inc was founded in 1986. The company's line of business includes the wholesale distribution of groceries and related products. [BN] The Plaintiff is represented by: Andranik Tsarukyan, Esq. Armen Zenjiryan, Esq. REMEDY LAW GROUP LLP 610 E. Providencia Ave., Unit B Burbank, CA 91501 Telephone: (818) 422-5941 E-mail: Andy.Tsarukyan@remedylawgroup.com Armen.Zenjiryan@remedylawgroup.com SUNTEC CONCRETE: Fails to Pay Overtime Wages, Enriquez Suit Says ---------------------------------------------------------------- CESAR ENRIQUEZ, individually and on behalf of all others similarly situated, Plaintiff v. SUNTEC CONCRETE, INC., and DOES 1 through 100, Defendants, Case No. 37-2018-00037091-CU-OE-CTL (Cal. Super., San Diego Cty., July 24, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Enriquez was employed by the Defendants as a non-exempt employee from August 21, 2017 to September 17, 2017. Suntec Concrete, Inc., a concrete construction company, produces concrete surfaces in Arizona. The company specializes in structural, tilt panel, flatwork, and foundation construction. Suntec Concrete, Inc. was founded in 1984 and is based in Phoenix, Arizona. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. Tuvia Korobkin, Esq. Stacey M. Shim, Esq. Jamin Xu, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com sshim@haineslawgroup.com jxu@haineslawgroup.com T-MOBILE USA: Jan. 17 Hearing on Class Certification Motion ----------------------------------------------------------- Judge Haywood S. Gilliam, Jr., of the U.S. Court for the Northern District of California granted the parties' Joint Stipulation to Continue Case Deadlines in the case, JESSE BLACK, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. T-MOBILE USA, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants, Case No. 4:17-cv-04151 (N.D. Cal.). He ordered as follows: i. Deadline to participate in private mediation - Aug. 30, 2018 ii. Completion of precertification fact discovery - Oct. 1, 2018 iii. Precertification expert disclosure deadline - Oct. 1, 2018 iv. Deadline to file Class Certification Motion - Oct. 10, 2018 v. Deadline to file Opposition to Class Certification - Nov. 26, 2018 vi. Motion Completion of precertification expert discovery - Dec. 12, 2018 vii. Deadline to file Reply to Class Certification Motion - Dec. 19, 2018 viii. Hearing on Class Certification Motion - Jan. 17, 2019 No dates for trial and dipositive motions will currently be set. The Parties will meet and confer and submit a further proposed scheduling order within 30 days of a ruling on the Plaintiff's Motion for Class Certification. A full-text copy of the Court's July 11, 2018 Scheduling Order is available at https://is.gd/LEmKlN from Leagle.com. Jesse Black, Plaintiff, represented by Arnab Banerjee -- Arnab.Banerjee@capstonelawyers.com -- Capstone Law APC. T-Mobile USA, Inc, Defendant, represented by Gregory G. Iskander -- giskander@littler.com -- Littler Mendelson, P.C., Keith Adam Jacoby -- kjacoby@littler.com -- Littler Mendelson, Sophia Behnia -- sbehnia@littler.com -- Littler Mendelson, P.C. & Perry Kim Miska -- pmiska@littler.com -- Jr., Littler Mendelson, P.C. TAMKO BUILDING: Loses Bid to Dismiss J. Snyder's Suit ----------------------------------------------------- The United States District Court for the Eastern District of California denied Defendant's Motion to Dismiss the case captioned JEFFREY SNYDER, MARTIN and BETH MELNICK, LIA LOUTHAN, and SUMMERFIELD GARDENS CONDOMINIUM on behalf of themselves and all others similarly situated, Plaintiffs, v. TAMKO BUILDING PRODUCTS, INC., a Missouri Corporation, Defendant, No. 1:15-cv-01892-TLN-KJN (E.D. Cal.). The Plaintiffs allege the shingles are plagued by design and/or manufacturing flaws that result in the shingles generally deteriorating and leaking. The Plaintiffs allege the Defendant represented its shingles as durable, reliable and free from defects on its website, and advertised that its shingles meet certain industry standards. Federal Rule of Civil Procedure 12(b)(2) permits a party to move for dismissal for lack of personal jurisdiction before pleading if a responsive pleading is allowed. The Defendant argues its contacts with California are not sufficient to render it at home in the state, as required for general jurisdiction, nor do those contacts give rise to the Challenged Plaintiffs' claims, as required for specific jurisdiction. The Plaintiffs argue the Defendant waived this defense because the Defendant earlier filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), and did not assert a 12(b)(2) defense in the earlier motions as required. The Defendant could have asserted the defense in this Court at the time the Defendant filed its 12(b)(6) motions. The Defendant could have preserved the defense in its responsive pleading or initial motions and alerted the Court to the pending decision in Bristol-Myers. Sloan, 287 F. Supp. 3d at 855; Alvarez v. NBTY, Inc., 2017 WL 6059159, at 5 (S.D. Cal. Dec. 06, 2017). The Defendant did neither and waived the defense. The Defendant's citation to Gucci America does not support its argument. In Gucci America,controlling precedent from the Second Circuit barred nonparty Bank of China from challenging personal jurisdiction. Gucci America, 768 F.3d at 136. The Supreme Court decided Daimler AG v. Bauman, 571 U.S. 117 (2014) during the pendency of Gucci America, and the holding in Daimler was directly contrary to the prior Second Circuit precedent. Bank of China was only able to challenge personal jurisdiction after the Supreme Court's decision in Daimler. The Supreme Court's decision in Bristol-Myers does not represent a change in law or creation of new law that made the 12(b)(2) defense available to Defendant as the Daimler decision did for Bank of China in the Second Circuit. The absence of Ninth Circuit precedent did not prevent Defendant from timely challenging personal jurisdiction in its initial motion to dismiss or responsive pleadings. Accordingly, the Court denies the Defendant's motion. A full-text copy of the District Court's July 2, 2018 Order is available at https://tinyurl.com/yadrfsh5 from Leagle.com. Jeffrey Snyder, Martin Melnick & Beth Melnick, Plaintiffs, represented by Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin Sedran & Berman, pro hac vice, Jacob M. Polakoff -- jpolakoff@bm.net -- Berger and Montague, pro hac vice,Lawrence Deutsch -- ldeutsch@bm.net -- Berger and Montague, pro hac vice, Richard Norman Sieving -- rsieving@sievinglawfirm.com -- The Sieving Law Firm A.P.C., Shanon J. Carson -- scarson@bm.net -- Berger and Montague, pro hac vice & Luke Gabriel Pears-Dickson, Sieving Law Firm, APC. Lia Louthan & Summerfield Gardens Condominium, Plaintiffs, represented by Charles E. Schaffer, Levin Sedran & Berman, pro hac vice, Jacob M. Polakoff -lpearsdickson@sievinglawfirm.com -- Berger and Montague, pro hac vice & Richard Norman Sieving, The Sieving Law Firm A.P.C. Tamko Building Products, Inc., Defendant, represented by Charles Stephen Painter, Ericksen Arbuthnot, Jessica D. Miller – jessica.miller@skadden.com -- Skadden, Arps, Slate, Meagher & Flom, LLP, pro hac vice, John H. Beisner – john.beisner@skadden.com -- Skadden Arps Slate Meagher & Flom,LLP & Richard T. Bernardo – richard.bernardo@skadden.com -- Skadden Arps Slate Meagher & Flom, LLP, pro hac vice. TEXAS GUARANTEED: Berumen Alleges Wrongful Debt Collections ----------------------------------------------------------- MARIA BERUMEN, individually and on behalf of all others similarly situated, Plaintiff v. TEXAS GUARANTEED STUDENT LOAN CORPORATION d/b/a TRELLIS COMPANY, Defendant, Case No. 5:18-cv-00738 (W.D. Tex., July 17, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Texas Guaranteed Student Loan Corporation operates as a non-profit corporation. The Company promotes educational access and offers low interest loans to serve students and their parents pay for education beyond high school. [BN] The Plaintiff is represented by: William M. Clanton, Esq. LAW OFFICE OF BILL CLANTON, P.C. 926 Chulie Dr. San Antonio, TX 78216 Telephone: (210) 226-0800 Facsimile: (210) 338 8660 E-mail: bill@clantonlawoffice.com - and - Benjamin R. Bingham, Esq. BINGHAM & LEA, P.C. 319 Maverick Street San Antonio, Texas 78212 Telephone: (210) 224-1819 Facsimile: (210) 224-0141 E-mail: ben@binghamandlea.com TOLL GLOBAL: Court Dismisses C. Marquez's Wage & Hour Suit ---------------------------------------------------------- The United States District Court for the Central District of California granted Defendant's Motion to Dismiss the case captioned CARLOS MARQUEZ, an individual, and on behalf of all others similarly situated, Plaintiff, v. TOLL GLOBAL FORWARDING (USA) INC., a New York corporation; TGF MANAGEMENT GROUP HOLDCO, INC., a New Jersey corporation; INSPERITY EXPENSE MANAGEMENT, INC., a Texas corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 2:18-cv-03054-ODW (ASx)(C.D. Cal.). The Plaintiff filed his Complaint 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. Plaintiff's First Cause of Action: Failure to Pay All Wages (Overtime) The Plaintiff alleges that the Plaintiff Class worked hours in excess of eight hours per day and forty hours per week, for which they were not paid the overtime guaranteed under the Cal. Labor Code. Overtime provisions are covered in Section 510 of the Cal. Labor Code. The CBAs expressly provide for each of these in the following articles: wages hours working conditions, premium wages and regular wage great than minimum. The Court finds that all requirements of Section 514 are met, and the Plaintiff's overtime claim is statutorily barred. Therefore, Plaintiff's first cause of action must be dismissed with prejudice. Plaintiff's Second and Third Causes of Action: Meal and Rest Break Violations The Plaintiff alleges the Defendants scheduled employees in a way that failed to reasonably ensure they could take meal breaks, and failed to implement a relief system so that they could take rest breaks. Therefore, adjudication of these claims will require analysis of the Defendants' scheduling policies, combined with analysis of what it means under the CBA to permit an employee to take a break. Namely the question will hinge on how exactly the defendants' policies prevented employees from taking the breaks they were permitted. Additionally, the same provision of the CBA provides: Employees may not leave a load unattended to take a meal or rest break. The Defendants argue that deciding the Plaintiff's claims will require interpretation of what a load is, what it means to leave a load and what unattended means. In both instances, addressing the issue will require more than merely applying the terms of the CBA. It will require interpretation, and the parties will likely dispute the meaning of these terms. Because the Plaintiff's meal and rest break claims require analysis of the CBA, they are preempted under Section 301 of the LMRA. Additionally, the Plaintiff has not pleaded that he has exhausted the grievance procedures stipulated by the CBA. The Plaintiff does not assert that he made any attempt to exhaust the grievance or arbitration procedures in the CBA. Instead, he argues that he was not required to exhaust such claims, because his claims do not require interpretation of the CBA. The Court disagrees with the Plaintiff on this point and finds that he was required to exhaust the grievance procedures under the CBA. Therefore, the Court finds that granting the Plaintiff leave to amend to plead exhaustion would be futile and dismisses with prejudice the Plaintiff's second and third causes of action. Plaintiff's Fourth Cause of Action: Failure to Pay Timely Wages During Employment The remedy for violations of Section 204 is stated in Section 210(b), which grants the state labor commissioner, not individual plaintiffs, the ability to seek remedies. Therefore the Plaintiff's fourth cause of action is not based on a cognizable legal theory, and the Court dismisses it with prejudice. Plaintiff's Fifth, Sixth, and Seventh Causes of Action: Failure to Pay Wages of Terminated or Resigned Employees, Failure to Keep Accurate Payroll Records, Unfair Competition This claim is clearly derivative of the Plaintiff's second and third causes of action. Finally in his seventh cause of action, the Plaintiff alleges that "Among other things, the acts and practices (of the Defendants') have forced [Plaintiff Class] to labor for many hours in a row without receiving the meal and rest periods and overtime compensation to which they are entitled by law.” The Plaintiff provides no factual allegations related to the "other things" that could form the basis for his claim, therefore he has not stated a claim for this cause of action that is not derivative of his overtime and meal and rest break claims. As the Plaintiff's first three causes of action are pre-empted or statutorily barred, the Court dismisses with prejudice the Plaintiff's Fifth, Sixth, and Seventh causes of Action. Accordingly, the Defendants' Motion is granted and the Plaintiff's claims are dismissed with prejudice. A full-text copy of the District Court's June 28, 2018 Order is available at https://tinyurl.com/y7sx7ayu from Leagle.com. Carlos Marquez, an individual and on behalf of all others similarly situated, Plaintiff, represented by Kevin Mahoney -- kmahoney@mahoney-law.net -- Mahoney Law Group APC & George Bernard Singer -- gsinger@mahoney-law,net -- Mahoney Law Group. Toll Global Forwarding USA Inc., a corporation, Defendant, represented by Eric E. Hill, Seyfarth Shaw LLP. TGF Management Group Holdco, Inc., a corporation & Insperity PEO Services, L.P., Erroneously Sued As, Defendants, represented by Eric E. Hill, Seyfarth Shaw LLP & William J. Dritsas, Seyfarth Shaw LLP. TRAVELERS PROPERTY: Removes Anheuser Busch Suit to E.D. Missouri ---------------------------------------------------------------- The Defendants in the case of Anheuser Busch Employee Credit Union, Plaintiff v. Travelers Property Casualty Company of America, and The Charter Oak Fire Insurance Company, Defendants, filed a notice to remove the lawsuit from the Circuit Court of the State of Missouri, City of St. Louis (Case No. 1822-CC10769) to the U.S. District Court for the Eastern District of Missouri on July 23, 2018, and assigned Case No. Case No. 4:18-cv-01208-CDP (E.D. Mo., July 23, 2018). The case is assigned to District Judge Catherine D. Perry. The Travelers Property Casualty Company of America offers property and casualty insurance products and services. It was formerly known as The Travelers Indemnity Company of Illinois, Inc. and changed its name to The Travelers Property Casualty Company of America in December 2003. The company was incorporated in 1971 and is based in Hartford, Connecticut. The Travelers Property Casualty Company of America operates as a subsidiary of The Phoenix Insurance Company. [BN] The Plaintiff is represented by: David Eric Larson, Esq. MARTIN PRINGLE 9401 Indian Creek Pkwy., Suite 1150 Overland Park, KS 66210 Telephone: (913) 491-5500 Facsimile: (913) 491-3341 E-mail: delarson@martinpringle.com The Defendants are represented by: Jonathan Ryan Shulan, Esq. ARMSTRONG TEASDALE LLP 7700 Forsyth Blvd., Suite 1800 St. Louis, MO 63105 Telephone:(314) 621-5070 Facsimile: (314) 621-5065 E-mail: jshulan@armstrongteasdale.com - and - Patrick J. Kenny, Esq. ARMSTRONG TEASDALE LLP 7700 Forsyth Blvd., Suite 1800 St. Louis, MO 63105 Telephone: (314) 621-5070 Facsimile: (314) 612-2262 E-mail: pkenny@armstrongteasdale.com UBER TECHNOLOGIES: Has Made Unsolicited Calls, Bollinger Alleges ---------------------------------------------------------------- SHELTON BOLLINGER, individually and on behalf of all others similarly situated, Plaintiff v. UBER TECHNOLOGIES, INC., Defendant, Case No. 3:18-cv-04538 (N.D. Cal., July 26, 2018) seeks to stop the Defendants' practice of making unsolicited calls. The Plaintiff alleges in the complaint that the Defendant intentionally or willfully caused autodialed text messages to be sent to the cellular phones of the Plaintiff and other consumers without their prior express consent. Uber Technologies, Inc. develops, markets, and operates a ridesharing mobile application which allows consumers to submit a trip request, which is routed to crowd-sourced partner drivers. The company was formerly known as UberCab Inc. and changed its name to Uber Technologies, Inc. in October 2010. Uber Technologies, Inc. was founded in 2008 and is based in San Francisco, California, with an engineering center in Bengaluru, India and a regional office in Singapore. [BN] The Plaintiff is represented by: Daniel C. Girard, Esq. Angelica M. Ornelas, Esq. Simon S. Grille, Esq. GIRARD GIBBS LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4800 E-mail: dcg@girardgibbs.com amo@girardgibbs.com sg@girardgibbs.com UNITED AIRLINES: Fails to Provide Meal & Rest Period, Medina Says ----------------------------------------------------------------- JOSE MEDINA, individually and on behalf of all others similarly situated, Plaintiff v. UNITED AIRLINES, INC.; and DOES 1 through 100, inclusive, Defendants, Case No. BC715062 (Cal. Super., Los Angeles Cty., July 25, 2018) is an action against the Defendants for failure to provide proper meal and rest periods, and keep accurate records. Mr. Medina was employed by the Defendants as mechanic. United Airlines, Inc. provides air transportation services in North America, the Asia-Pacific, Europe, the Middle East, and Latin America. The company was founded in 1934 and is headquartered in Chicago, Illinois. United Airlines is a subsidiary of United Continental Holdings, Inc. [BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com - and – Edward W. Choi, Esq. LAW OFFICES OF CHOI & ASSOCIATES 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 E-mail: Edward.choi@choiandassociates.com - and – William L. Marder, Esq. POLARIS LAW GROUP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 US ENVIRONMENTAL: Court Narrows Claims in B. Formica's FLSA Suit ---------------------------------------------------------------- Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania dismissed the claims for breach of contract and unjust enrichment in the case, BRENT FORMICA, Individually and on Behalf of All Others Similarly-Situated, v. US ENVIRONMENTAL INC., Civil Action No. 18-459. (E.D. Pa.). Formica brings the collective and class action against his employer, US Environmental, seeking relief under the Fair Labor Standards Act ("FLSA") and Pennsylvania law. From January 2017 to September 2017, Formica worked for US Environmental as a field service technician, cleaning oilfield tanks at various job sites. He claims he was not paid for all time worked and for overtime at time-and-a-half. Specifically, he alleges he was not compensated for the time spent while travelling on the job and for meal periods when he remained on duty. He contends that these times should have been included in the hours worked for the purpose of calculating overtime. In addition to bringing these claims under the FLSA, the Pennsylvania Minimum Wage Act of 1968, and the Pennsylvania Wage Payment and Collection Law, he asserts state common law claims for breach of contract and unjust enrichment. US Environmental moves to dismiss the latter two claims, arguing they are preempted by the FLSA because they are duplicative of the FLSA claim. Judge Savage finds that Formica's breach of contract and unjust enrichment claims are based on the same facts as his FLSA claim, which requires US Environmental to pay him for all hours worked. Because the FLSA provides a remedy for all of Formica's claims, his common law claims are preempted. Therefore, he granted the motion, and dismissed the claims for breach of contract and unjust enrichment. A full-text copy of the Court's July 11, 2018 Memorandum Opinion is available at https://is.gd/VF66J4 from Leagle.com. BRENT FORMICA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY-SITUATED, Plaintiff, represented by KEVIN I. LOVITZ -- kevin@lovitzlaw.com -- LOVITZ LAW FIRM, P.C., PHILIP BOHRER -- phil@bohrerbrady.com -- BOHRER BRADY, LLC & SCOTT E. BRADY -- scott@bohrerbrady.com -- BOHRER BRADY, LLC. US ENVIRONMENTAL, INC., Defendant, represented by BRIAN P. SHIRE -- shire@swbcounsellors.com -- SUSANIN WIDMAN BRENNAN PC & BRIAN W. WAERIG -- bwaerig@swbcounsellors.com -- SUSANIN WIDMAN & BRENNAN PC. WELLS FARGO: Allen Appeals Order and Judgment to 8th Cir. --------------------------------------------------------- Plaintiffs Francesca Allen, John Sterling Ross and Mary Lou Shank filed an appeal from the District Court's order filed on July 19, 2018, and judgment filed July 20, 2018, in their lawsuit titled Francesca Allen, et al. v. Wells Fargo & Company, et al., Case No. 0:16-cv-03405-PJS, in the U.S. District Court for the District of Minnesota. As reported in the Class Action Reporter on August 20, 2018, the District Court granted the Defendants' Motion to Dismiss the Plaintiffs' second amended complaint. The Plaintiffs brought this lawsuit under the Employee Retirement Income Security Act (ERISA), against Wells Fargo and corporate insiders, who served as fiduciaries of their 401(k) plan. The Plaintiffs alleged that the Defendants violated two distinct duties under ERISA, the duty of prudence and the duty of loyalty, by failing to disclose Wells Fargo's unethical sales practices. The appellate case is captioned as Francesca Allen, et al. v. Wells Fargo & Company, et al., Case No. 18-2781, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before October 1, 2018; -- Appendix is due on October 9, 2018; -- Brief of Appellants Francesca Allen, John Sterling Ross and Mary Lou Shank is due on October 9, 2018; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the court issues the Notice of Docket Activity filing the appellee brief.[BN] Plaintiffs-Appellants Francesca Allen, individually and on behalf of all others similarly situated and on behalf of the Wells Fargo & Company 401(k) Plan; John Sterling Ross, and all other individuals similarly situated; and Mary Lou Shank are represented by: Carolyn G. Anderson, Esq. June Pineda Hoidal, Esq. ZIMMERMAN REED, PLLP 1100 IDS Center 80 S. Eighth Street Minneapolis, MN 55402-4123 Telephone: (612) 341-0400 E-mail: carolyn.anderson@zimmreed.com june.hoidal@zimmreed.com - and - Richard M. Elias, Esq. Greg G. Gutzler, Esq. Tamara M. Spicer, Esq. ELIAS GUTZLER SPICER LLC 130 S. Bemiston Avenue, Suite 302 Saint Louis, MO 63105 Telephone: (314) 637-6350 E-mail: relias@egslitigation.com ggutzler@egslitigation.com tspicer@egslitigation.com - and - Michael Brian Ershowsky, Esq. LEVI & KORSINSKY LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 E-mail: mershowsky@zlk.com - and - Daniel R. Ferri, Esq. Amy Elisabeth Keller, Esq. Adam Levitt, Esq. DICELLO LEVITT & CASEY LLC 10 N. Dearborn Street, Eleventh Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: dferri@dlcfirm.com akller@dlcfirm.com alevitt@gelaw.com - and - Wilson Daniel Miles, III, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 218 Commerce Street P.O. Box 4160 Montgomery, AL 36103-4160 Telephone: (334) 269-2343 E-mail: Dee.Miles@beasleyallen.com - and - Douglas J. Nill, Esq. NILL, PLLC 120 S. Sixth Street, Suite 2050 Minneapolis, MN 55402-1801 Telephone: (612) 573-3669 E-mail: dnill@farmlaw.com - and - Rebecca A. Peterson, Esq. Robert K. Shelquist, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue, S., Suite 2200 Minneapolis, MN 55401-0000 Telephone: (612) 339-6900 E-mail: rapeterson@locklaw.com rkshelquist@locklaw.com Defendants-Appellees Wells Fargo & Company, Wells Fargo Bank NA, Wells Fargo Director of Human Resources, Wells Fargo Director of Compensation and Benefits, Wells Fargo Employee Benefits Review Committee, Lloyd H. Dean, Susan E. Engel, Donald M. James, Stephen W. Sanger, John Does 1-30, John G. Stumpf, Hope A. Hardison, Justin C. Thornton, Greatbane Trust Company, John Does, Richard Roes, Hope Hardison, Timothy J. Sloan, David A. Hoyt, Michael J. Heid, Frank Codel, Justin C. Thornton, John Shrewsberry, Kevin Oden, Patricia Callahan, Stanhope Kelly, Dawn Martin Harp, Suzanne Ramos, James Steiner, George Wick and Martin Davis are represented by: Nicholas J. Bullard, Esq. Stephen P. Lucke, Esq. Kirsten Schubert, Esq. DORSEY & WHITNEY LLP 50 S. Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Telephone: (612) 340-2600 E-mail: bullard.nick@dorsey.com lucke.steve@dorsey.com schubert.kirsten@dorsey.com - and - Madeline Chimento Rea, Esq. Lindsey H. Chopin, Esq. Joseph Emanuel Clark, Esq. Howard Shapiro, Esq. PROSKAUER ROSE LLP 650 Poydras Street, Suite 1800 New Orleans, LA 70130 Telephone: (504) 310-4085 E-mail: mrea@proskauer.com lchopin@proskauer.com jclark@proskauer.com howshapiro@proskauer.com - and - Russell Laurence Hirschhorn, Esq. PROSKAUER ROSE LLP 11 Times Square New York, NY 10036-2899 Telephone: (212) 969-3000 E-mail: bullard.nick@dorsey.com WELLS FARGO: Court OKs Amendments to V. Fowler's Complaint ---------------------------------------------------------- The United States District Court for the Northern District of California, Oakland Division, granted the Stipulated Amendments to the Complaint in the case captioned VANA FOWLER, individually and on behalf of all others similarly situated Plaintiff, v. WELLS FARGO BANK, N.A., Defendant, Case No. 4:17-cv-02092-HSG (N.D. Cal.). The Complaint originally alleged causes of action for violation of California Business and Professions Code Section 17200 et seq. and a California class. Wells Fargo moved to dismiss the Complaint and the Court granted in part and denied in part Wells Fargo's motion. The Parties reached a nationwide settlement which they are presenting concurrently with the submission of this Joint Stipulation to Conditionally Amend the Complaint for Settlement Purposes. The Parties have agreed to stipulate to the filing of an amended complaint pursuant to Federal Rule 15(a)(2), subject to the Court's approval, as follows: 1. Upon entry of the Order granting this Joint Stipulation, the Plaintiff will be permitted to amend her Complaint to conform to the terms of the proposed settlement as follows: (1) add Michael Peters as a plaintiff pursuant to Federal Rules 15 and 24; (2) allege a cause of action for breach of contract; and (3) amend the class definition to allege a nationwide class. 2. Upon the entry of the Order granting this Joint Stipulation, the First Amended Complaint will be deemed filed and served. The Defendant's previously filed Answer to the Plaintiff's Complaint will be deemed as Defendant's Answer to Plaintiff's First Amended Complaint. 3. This agreement will remain in effect only if the settlement becomes final, which means that neither party has voided the settlement, the settlement is approved by the Court, and the judgment becomes final, in that all dates for appeal have passed and no successful appeal challenging the judgment has occurred. If, for some reason, the settlement does not become final, then this agreement and this amendment to the complaint shall be deemed null and void, the operative complaint in this action will be the Complaint, and the Parties will be returned to their status as of the date of this filing without prejudice to any claim, right, or defense. A full-text copy of the District Court's June 28, 2018 Order is available at https://tinyurl.com/y8dd2zhc from Leagle.com. Vana Fowler, individually and on behalf of all others similarly situated, Plaintiff, represented by Adam Lewis Hoipkemier, Epps, Holloway, DeLoach and Hoipkemier, LLC, pro hac vice, Kevin Epps, EHDH, LLC, pro hac vice, Michael Francis Ram -- MRam@RobinsKaplan.com -- Robins Kaplan LLP, Jeffrey William DeLoach, Epps, Holloway, DeLoach and Hoipkemier, LLC, Samuel Joseph Strauss -- sam@turkestrauss.com -- Turke and Strauss LLP & Susan S. Brown -- sbrown@robinskaplan.com -- Robins Kaplan LLP. Wells Fargo Bank, N.A., Defendant, represented by David S. Reidy -- dreidy@mcguirewoods.com -- McGuireWoods LLP, K. Issac deVyver -- kdevyver@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Karla Lynn Johnson -- kjohnson@mcguirewoods.com -- McGuireWoods LLP & Sara F. Holladay-Tobias -- stobias@mcguirewoods.com -- McGuireWoods LLP, pro hac vice. ********* 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. 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