/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180906.mbx C L A S S A C T I O N R E P O R T E R Thursday, September 6, 2018, Vol. 20, No. 179 Headlines 127 EAST 23RD STREET: Faces Castillo Suit in New York 536 SPRUCE CORP: Perry Suit Seeks Unpaid OT Wages, Hits Tip Pool 7-ELEVEN INC: Mass. Court Denies Bid to Dismiss Labor Suit ACADIA PHARMACEUTICALS: Barglow Sues over Drop in Share Prices ALDER HOLDINGS: Faces Personal Injury Suit in Utah Dist. Ct. ALTICE USA: Faces Securities Class Action Over 2017 IPO AMERICAN EQUITY: Slivak Files Suit in E.D. Pa. Over ADA Violation AMERICAN RACING: Violates Disabilities Act, Mendez Suit Says AMERICOLLECT INC: Faces Beyer Suit in E.D. Wisconsin AMERISOURCEBERGEN: Masiowski RICO Suit Transferred to N.D. Ohio AMPIO PHARMA: Rosen Law Firm Probes Securities Claims AT&T MOBILITY: Faces Allen Suit over Pregnancy Discrimination BABCOCK & WILCOX: Court Stays Shareholder Derivative Litigation BASF SE: Era Polymers Suit Alleges Antitrust Violation BEST BUY: Harris Appeals N.D. California Decision to 9th Circuit BLACKROCK INST'L: Joint Discovery Letters Order in "Baird" Issued BMW: FTC Pursuing Adoption of Class Action System for Consumers BROADHURST THEATRE: Faces Reyes Suit in S.D. New York BROWN OLCOTT: Sandoval Hits Retaliation, Seeks Unpaid OT Wages CA INC: Faces Shareholder Class Action Over Broadcom Merger CAMBREX CORP: Reaches Settlement with Remaining Plaintiffs CARNIVAL CORP: Faces Wolfe Suit Over Insurance-Related Issues CBS CORP: 9th Cir. Reverses Summary Ruling in Copyrights Suit CBS CORP: Defending Against Westmoreland Employees' Suit CBS CORP: Faces Shareholder Class Action Over 6% Stock Drop CHESAPEAKE EXPLORATION: Court Certifies Ohio Landowners Class CHICAGO ATHLETIC: Faces Class Action Over Breach of Contract CHRYSLER: Judge Stays uConnect Technology Class Action CMRE FINANCIAL: Santomauro Suit Asserts FDCPA Violation COMENITY BANK: Riley Sues Over Illegal Telemarketing Calls COMFORT TECHNOLOGY: Faces Kiler Suit in NewYork for ADA Breach COOK COUNTY, IL: Zimmerman Law Offices Files Class Action CRA SOLUTIONS: Denied Payment of OT Wages, MacAlpine Suit Says DAIRYAMERICA INC: Court Grants Request to Seal Document DALLAS MORNING: Faces Class Action Over Illegal Call Campaign DELICIOUS HOSPITALITY: Martinez Suit Alleges ADA Violations DIRECTV LLC: Flynn's Bid to Certify Landlords Class Denied DIVERSICARE HEALTHCARE: Continues to Defend Garland, TX Class Suit DUCK WALK: Violates Disabilities Act, Martinez Suit Alleges DUKE UNIVERSITY: Lucas Files ERISA Class Suit in N.C. ELDERS VENTURES: Lore Labor Suit Seeks Unpaid OT Wages ENTERTAINMENT CRUISES: Violates Disabilities Act, Diaz Suit Says EQUIFAX INFORMATION: Faces Parker FCRA Suit in Florida EVENKO: Disappointed Music Fan Pursues Class Action F5 PRODUCTIONS: Biennescar Action to Recover Unpaid OT Wages FACEBOOK INC: Data Privacy Class Action Lawsuits Consolidated FACEBOOK INC: Faces Class Action Over Users' Private Data-Sharing FARMLAND MUTUAL: Court Dismisses S. Mejia's Class Action Claims FLEX LTD: Court Extends Time to Respond in California Class Suit FLINT, MI: Wurfel Appeals Ruling in Waid Suit to 6th Cir. FREEDOM CRUISES: Diaz Sues Over Disabilities Act Breach GATES CORP: Lundine Sues Over Unpaid Overtime GENERAL CABLE: 6th Circuit Appeal Filed in Eley's ERISA Suit GEO GROUP: Judge Certifies Wage Theft Class-Action GLENCORE PLC: Levi & Korsinsky Files Securities Class Action GRANT & WEBER: Court Denies Dismissal of FDCPA Suit GRAY TELEVISION: Clay Massey Suit Alleges Sherman Act Violation GUARANTY BANCORP: Parshall Hits Merger Deal, Seeks More Info HARVARD UNIV: Judge Urged to Back Asian-American Students' Case HCP INC: Bid to Dismiss Firefighters' Pension Fund Suit Pending HERBALIFE INT'L: Awaits Decision in "Circle of Success" Class Suit HGC CONSTRUCTION: Sullivan Sues Over ADA Violations HORNBLOWER YACHTS: Faces Diaz Sues Alleging ADA Violation HOUSTON, TX: 2 Women to Appeal Dismissal of Rape Kit Lawsuit HUSKY ENERGY: Faces Class Action Over Asphalt Refinery Blast IDERA PHARMA: Merger-Related Suits Voluntarily Dismissed IMPAC MORTGAGE: Judgment Order in "Timm" Suit Under Appeal IMPERVA INC: Court Certifies Settlement Class in "Poinsignon" Case JC WASHINGTON: Bavaro et al. Seek to Certify Class of Drivers JERSEY STRONG: Sullivan Files ADA Suit in S.D.N.Y. KANYE WEST: Class Action Lawsuit From Disgruntled Fan Over Tweet KAPSTONE PAPER: Faces Class Action Over WestRock Merger Deal KAPSTONE PAPER: Pill Files Suit Over WestRock Merger Deal KNORR-BREMSE AG: Employee's Anti-trust Row Transferred to W.D. Pa. KNORR-BREMSE: Fricia Suit over No-Poach Deal Moved to Pennsylvania KPMG LLP: Must Face Class Action Over Shoddy Miller Energy Audit LA LOCHE: Shooting Victim Considers Class-Action Lawsuit LABORATORY CORP: Mendez ADA Suit Filed in S.D. New York LAFAYETTE STEEL: Court Conditionally Certifies Collective Action LAVECCHIA SURFACE: Rivera Action Seeks Unpaid Overtime LIFECARE MISSOURI: McCulley Seeks to Recover Unpaid OT Wages LLR INC: Court Denies Bid to Certify Class in Webster et al. Suit LOGMEIN INC: Gainey McKenna Files Class Action Lawsuit MAVENIR INC: Wayne Retirement System Balks at Merger Deal MBG TAVERNS: Underpays Cooks & Sous-Chefs, Morales & Cortes Claim MCCORMICK & SCHMICK: Morris Sues Over Illegal Tip Pool MDL 2709: Class Certification Sought in Dollar General Litigation MDL 2785: Court Narrows Claims in EpiPen Antitrust Suit MEDNAX INC: Faces Securities Suit over Anesthesiology Business MERCEDES BENZ: Faces Class Action Over 590 Mars Red Paint Defect MID-AMERICA TAPING: Vega's Bid to Certify Class Denied as Moot MINNESOTA: Class-Action Suit Over Civil Commitment Program MONTGOMERY, NY: Class & Subclasses Certified in Hill & Rogers Suit MORRIS FARMERS: Castellon Suit Alleges FLSA Violation NANTKWEST INC: Seeks 9th Cir. Review of Ruling in "Sudunagunta" NATURA MIRACLES: Miller Sues Over Illegal SMS Ad Blasts NEVRO CORP: Saxena White Files Securities Fraud Class Action NEW ORLEANS REGIONAL: Jones et al. Seek to Certify Employees Class NIELSEN HOLDINGS: Pomerantz Law Files Class Action NIGHTGALLERIE LLC: Hanna Hits Missed Breaks, Unpaid OT, Paystubs P.F. CHANG'S: Motion for Conditional Certification Granted in Part PARISH OF PLAQUEMINES: Underpays Paramedics, Babin et al. Allege PERKINS & MARIE: Violates Disabilities Act, Slivak Suit Claims PHILLY TRAMPOLINE: Faces Slivak Suit Alleging ADA Violation PILGRIM'S PRIDE: Bid for Reconsideration in Hogan Suit Pending PILGRIM'S PRIDE: Bid to Transfer Associated Wholesale Suit Pending PILGRIM'S PRIDE: Still Defends Broiler Chicken Grower Suit PINNACLE FOODS: Wolf Popper Files Class Action Lawsuit POST UNIVERSITY: Davis Suit Alleges TCPA Violation PURDUE PHARMA: 2 Law Firms Ally in Class Action Against Pharma Cos. PURDUE PHARMA: Faces Personal Injury Suit in in Penn. PURDUE PHARMA: MSI Corp. Seeks Damages in RICO Class Action PURE BEAUTY: Mendoza Labor Suit Seeks Unpaid Overtime Wages QUEST DIAGNOSTICS: Mendez Sues Over Disabilities Act Violations RAMOS FURNITURE: Court Grants Default Judgment on Individual Claims REDSTONE FEDERAL: Court Narrows Claims in Caldwell FDCPA Suit RENT-A-CENTER INC: "Hall" Class Certification Hearing on Sept. 19 RENT-A-CENTER INC: Blair Class Action Still Ongoing RIDGE NATURAL: Bridges et al. Allege RICO Violation RINGCENTRAL INC: Motion to Dismiss "Hurley" Lawsuit Still Pending RIPPLE LABS: Plaintiff Withdraws Class Action Lawsuit ROADRUNNER TRANSPORT: Bids to Nix Securities Class Lawsuit Pending ROSENTHAL MORGAN: Violates Fair Debt Collection Act, Bunch Claims RUSH STREET: Mendez Suit Assert ADA Breach S&F COMMUNICATIONS: Snell Action Seeks Unpaid Overtime Under FLSA SAFELITE FULFILLMENT: 9th Cir. Dismisses Appeal in Wage Suit SCANA CORP: Bid to Dismiss Consolidated Securities Suit Pending SCANA CORP: Bid to Dismiss Pennington Suit Denied SCANA CORP: Continues to Defend Turner Class Action SCHMIDT BAKING: "Schilling" Class of DSMs Conditionally Certified SCI DIRECT: Romano Bid to Certify Class Taken under Submission SEARS HOLDINGS: Faces Siu Suit in Calif. Dist. Ct. SEAWORLD ENTERTAINMENT: 9th Cir. Affirms Dismissal of Class Action SETERUS INC: Baxa's Bid to Certify Class Denied without Prejudice SHELL OIL: Saltzman Labor Suit to Recover Unpaid OT Wages SHELLY ENTERPRISE: Desta Suit Seeks to Recover Unpaid Wages STERICYCLE INC: Awaits Court OK on Bid to Dismiss Illinois Suit STERICYCLE INC: Continues to Defend Ibrahim TCPA Class Suit STERICYCLE INC: Pays Final Settlement Sum in Contract Class Suit STEVENS BUSINESS: Violates Fair Debt Collection Act, Koenig Says SUPERFEET WORLDWIDE: Violates Disabilities Act, Kiler Suit Says SUPERVALU INC: Faces Shareholder Class Action Over United Deal TERMINIX INT'L: Can Compel Arbitration in Salesperson's Suit TEVA PHARMA: Baker Consolidated with Grodko & Moved to Connecticut TEVA PHARMA: Bid to Dismiss Ontario Teachers Suit Due Sept. 14 TEVA PHARMA: Court Puts Off OZ ELS Master Fund Suit TEVA PHARMA: Grodko Suit Transferred to District of Connecticut TEVA PHARMA: PROVIGIL(R) Suit Against Unit Still Ongoing TEVA PHARMA: Suit over Employee Stock Purchase Plan Remains Stayed TOP SHIPS: Court Consolidates 2 Securities Suits TRIPLE T TRADING: Violates Disabilities Act, Bunting Suit Says TROON GOLF: Merlin Suit Seeks Unpaid Overtime Premium TWIN DRAGONS: Underpays Kitchen Staff, Rood Bobo Suit Alleges UBER TECHNOLOGIES: Set To Pay $34K+ Per Person in Settlement ULTIMATE HOME SERVICES: Installers Suit to Recover Unpaid OT Wages UNITED STATES: Calif. Court Narrows Claims in Asylum Seekers' Suit VCG HOLDING: Court Certifies Question on Arbitration Nonsignatory VS NESHAMINY: Slivak Suit Asserts ADA Breach [*] NLRB Might Strengthen Class Action Waivers ********* 127 EAST 23RD STREET: Faces Castillo Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against 127 East 23rd Street LLC. The lawsuit is captioned as Evelyn Castillo, on behalf of herself and all others similarly situated, the Plaintiff, v. 127 East 23rd Street LLC doing business as: Gramercy Theatre, the Defendant, Case No. 1:18-cv-07474 (S.D.N.Y., Aug. 16, 2018). The suit alleges Americans with Disabilities violation.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465 1188 Facsimile: (212) 465 1181 E-mail: cklee@leelitigation.com 536 SPRUCE CORP: Perry Suit Seeks Unpaid OT Wages, Hits Tip Pool ---------------------------------------------------------------- Michael Perry, on behalf of himself and all others similarly situated, Plaintiff, v. 536 Spruce Corp., Cindy Chu and Jack Chu, Defendants, Case No. 18-cv-01650, (M.D. Pa., August 20, 2018), seeks to recover unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory penalties and damages under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Defendants operate as Osaka Japanese Restaurant where Perry worked as a server. During the course of their employment, Plaintiffs regularly worked more than forty hours per work week without overtime compensation and was forced to participate in an illegal tip pool, says the complaint. [BN] Plaintiff is represented by: Michael Murphy, Esq. Eight Penn Center, Suite 1803 1628 John F. Kennedy Blvd. Philadelphia, PA 19103 Tel: (267) 273-1054 Fax: (215) 525-021 murphy@phillyemploymentlawyer.com 7-ELEVEN INC: Mass. Court Denies Bid to Dismiss Labor Suit ---------------------------------------------------------- In the case, Dhananjay Patel, Safdar Hussain, vatsal Chokshi, Dhaval Patel and Niral Patel, and all others similarly situated, Plaintiffs, v. 7-Eleven, Inc., Mary Cadigan and Andrew Brothers, Defendants, Civil Action No. 17-11414-NMG (D. Mass.), Judge Nathaniel M. Gorton of the U.S. District Court for the District of Massachusetts (i) denied the Plaintiffs' motion to remand; (ii)denied 7-Eleven's motion to dismiss; (iii) granted the individual Defendants' motion to dismiss; and (iv) denied without prejudice the Plaintiffs' emergency motion to enjoin the Defendant from obtaining releases from putative class members. The case is a putative class action brought by the Named Plaintiffs on behalf of individuals who have acquired franchises from 7-Eleven and performed services as store managers and convenience store clerks in Massachusetts. The Plaintiffs allege that 7-Eleven and two 7-Eleven market managers, Mary Cadigan and Andrew Brothers, the individual Defendants, (1) misclassified its franchisee convenience store workers in Massachusetts as independent contractors instead of employees in violation of the Massachusetts Independent Contractor Law; (2) violated the Massachusetts Wage Act; and (3) violated the Massachusetts Minimum Wage Law. The named Plaintiffs are residents of Massachusetts who acquired 7-Eleven franchises and work as store managers and convenience store clerks in Massachusetts. The Plaintiffs allege that 7-Eleven dictates how franchisees do their jobs. 7-Eleven also determines store hours, controls the payroll system and requires that franchisees make daily monetary deposits into an account that it controls. According to the Plaintiffs, they perform services exclusively for 7-Eleven, are misclassified as independent contractors instead of employees and therefore have been deprived of benefits to which employees are entitled under Massachusetts law, including a minimum wage and protection from improper wage deductions. They allege that Cadigan and Brothers, two 7-Eleven market managers who reside in Massachusetts, exercised extensive control over the Plaintiffs' work. The Plaintiffs filed their statutory claims with the Office of the Attorney General and received a right to sue letter, as required by M.G.L. c. 149 Section 50. Thereafter they filed the action in Massachusetts Superior Court for Middlesex County and the Defendants promptly removed the case to the Court. On June 15, 2018, 7-Eleven distributed 2019 franchise renewal contracts to all Massachusetts franchisees, including franchisees who do not have agreements expiring in 2019. On page 208 of that 641-page document, the contract contains a "Release of claims and termination" section that requires renewing franchisees to release their claims in the case. On June 29, 2018, the Plaintiffs filed an emergency motion seeking to enjoin 7-Eleven from soliciting those releases. Also pending before the Court are the Plaintiffs' motion to remand, 7-Eleven's motion to dismiss and the individual Defendants' motion to dismiss. Judge Gorton finds that the complaint alleges only that the individual Defendants exercised extensive control over the Plaintiffs' work. That allegation is insufficient to state a claim under any statute and does not satisfy the pleading requirements of Massachusetts Courts. Because there is no reasonable probability that the SJC would find that the Plaintiffs' barebones complaint states a cause of action against the individual Defendants, the Judge finds that they were fraudulently joined. Diversity jurisdiction exists and the Plaintiff's motion to remand is denied. Because he has found that it possesses jurisdiction under the diversity statute, the Judge declined to address the Defendant's argument that the Court has federal question jurisdiction under the local controversy exception to the CAFA. The Defendant submits that the complaint does not adequately allege that any Plaintiff ever received less than the minimum wage. The Judge disagrees. He finds that the Plaintiffs provide a multitude of allegations that plausibly support their contention that they are employees, not independent contractors. The complaint alleges that franchisees generally work more than 50 hours per week while receiving take-home pay of less than the minimum wage. The complaint further alleges that 7-Eleven deducts certain fees and payments from plaintiffs' wages. Hence, the motion to dismiss of 7-Eleven is denied. Because the complaint alleges no facts about the individual Defendants besides their title of market manager and that they "exercised extensive control over the Plaintiffs' work, the Judge allowed the individual Defendants' motion to dismiss. He finds that it would be futile for the Plaintiffs to amend their complaint with respect to the individual Defendants and dismissed those Defendants with prejudice. Finally, after a careful comparison of the potential abuse by 7-Eleven with the rights of both parties, the Judge concludes that the Plaintiff's emergency request for injunctive relief is premature and unwarranted under the Federal Rules of Civil Procedure. Therefore, the Plaintiffs' emergency motion is denied. A full-text copy of the Court's July 20, 2018 Memorandum and Order is available at https://is.gd/N7VNbt from Leagle.com. Dhananjay Patel, Safdar Hussain, Vatsal Chokshi, Dhaval Patel & Niral Patel, Plaintiffs, represented by Adelaide H. Pagano -- apagano@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Shannon E. Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. 7-ELEVEN, INC., Mary Carrigan & Andrew Brothers, Defendants, represented by Matthew J. Iverson -- matthew.iverson@dlapiper.com -- DLA Piper US LLP, Jennifer Brown -- jennifer.brown@dlapiper.com -- DLA Piper US LLP & Norman M. Leon -- norman.leon@dlapiper.com -- DLA Piper LLP, pro hac vice. ACADIA PHARMACEUTICALS: Barglow Sues over Drop in Share Prices -------------------------------------------------------------- BENJAMIN BARGLOW, individually and on behalf of all others similarly situated, Plaintiff vs. ACADIA PHARMACEUTICALS INC., STEPHEN R. DAVIS, and TODD S. YOUNG, Defendants, Case No. 3:18-cv-01812-DMS-WVG (S.D. Cal., Aug. 3, 2018) alleges violation of the Securities Exchange Act. According to the complaint, on April 29, 2016, Acadia issued a press release announcing that that the FDA approved NUPLAZID for the treatment of hallucinations and delusions associated with Parkinson's disease psychosis. Acadia further stated that the FDA approval of NUPLAZID was based on data from the pivotal Phase III Study-020 and other supportive studies, representing the largest research and development program in Parkinson's disease psychosis to date. On February 27, 2018, Acadia announced fourth quarter 2017 NUPLAZID sales of $43.6 million, which was approximately $720,000 below consensus estimates. On this news, Acadia's stock price fell $6.24 per share, or 20%, to close at $24.92 per share on February 28, 2018, on unusually heavy trading volume. On April 9, 2018, CNN reported that physicians, medical researchers and other experts told CNN that they worried that NUPLAZID had been approved too quickly, based on too little evidence that it was safe or effective. And given these mounting reports of deaths, they say that more needs to be done to assess Nuplazid's true risks. On this news, Acadia's stock price fell $5.03 per share, or 23.4%, to close at $16.50 per share on April 9, 2018, on unusually heavy trading volume. On April 25, 2018, CNN reported that the FDA was re-examining the safety of NUPLAZID. On this news, Acadia's stock price fell $4.27 per share, or 21.9%, to close at $15.20 per share on April 25, 2018, on unusually heavy trading volume. On July 9, 2018, the Southern Investigative Reporting Foundation published a report entitled "Acadia Pharmaceuticals: This Is Not a Pharmaceuticals Company. Therein, SIRF stated that "evidence is mounting that something is horribly wrong with Acadia's sole drug, Nuplazid, an antipsychotic for Parkinson's disease patients who experience episodic hallucinations and delusions" and that "Acadia has accomplished its growth in ways that have attracted intense regulatory scrutiny for other drug companies" including "dispensing wads of cash to doctors to incentivize prescription writing and downplaying mounting reports of patient deaths." On this news, Acadia's stock price fell $1.21 per share, or 6.8%, to close at $16.63 per share on July 9, 2018, on unusually heavy trading volume. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. ACADIA Pharmaceuticals Inc., a biopharmaceutical company, focuses on the development and commercialization of small molecule drugs that address unmet medical needs in central nervous system disorders. ACADIA Pharmaceuticals Inc. was founded in 1993 and is headquartered in San Diego, California. [BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ, LLP 468 North Camden Drive Beverly Hills, CA 90210 Telephone: (818) 532-6499 E-mail: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ, LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com ALDER HOLDINGS: Faces Personal Injury Suit in Utah Dist. Ct. ------------------------------------------------------------ A class action lawsuit has been filed against Alder Holdings and Alarm Protection Technology. The case is entitled Security Systems, individually and on behalf of all others similarly situated v. Alder Holdings and Alarm Protection Technology, Case No. 2:18-cv-00664-CW (D. Utah, August 24, 2018). The cause of suit is stated as personal injury. Alarm Protection Technology provides electronic security and other related alarm monitoring services.[BN] The Plaintiff is represented by: Jon V. Harper, Esq. M. Denise Dalton, Esq. HARPER LAW PLC PO Box 581468 Salt Lake City, UT 84158 Telephone: (801) 910-4357 E-mail: jharper@jonharperlaw.com ALTICE USA: Faces Securities Class Action Over 2017 IPO ------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP on Aug. 7 disclosed that a securities class action lawsuit has been filed on behalf of all persons or entities that purchased Altice USA, Inc. (NYSE:ATUS) ("Company") publicly traded securities pursuant to the Company's initial public offering ("IPO") on June 21, 2017 at $30.00 per share. All investors who have incurred losses in shares of Altice USA, Inc. are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information about the firm on our website, www.whafh.com. The filed litigation concerns whether Altice USA's filings with the U.S. Securities and Exchange Commission (SEC) in connection with the IPO contained untrue statements of material fact or omitted material information, specifically regarding the Company's relationship with its parent company, Altice N.V. Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience in the prosecution of securities class actions and derivative litigation in state and federal trial and appellate courts across the country. The firm has attorneys in various practice areas; and offices in New York, Chicago and San Diego. The reputation and expertise of this firm in shareholder and other class litigation has been repeatedly recognized by the courts, which have appointed it to major positions in complex securities multi-district and consolidated litigation. If you wish to discuss this action or have any questions regarding your rights and interests in this potential case, please immediately contact Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at classmember@whafh.com, or visit our website at www.whafh.com. [GN] AMERICAN EQUITY: Slivak Files Suit in E.D. Pa. Over ADA Violation ----------------------------------------------------------------- A class action lawsuit has been filed against American Equity Properties, Inc. The case is styled as JESSICA SLIVAK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. AMERICAN EQUITY PROPERTIES, INC., Case No. 2:18-cv-03626-GAM (E.D. Pa., August 24, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. American Equity Properties, Inc., is a privately held company in Plano, Texas. The Company is categorized under business management consultants.[BN] The Plaintiff is represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 Facsimile: (215) 364-5029 E-mail: erayz@kalraylaw.com AMERICAN RACING: Violates Disabilities Act, Mendez Suit Says ------------------------------------------------------------ A class action lawsuit has been filed against American Racing and Entertainment, LLC. The case is titled as Himelda Mendez, on behalf of herself and all others similarly situated v. American Racing and Entertainment, LLC, doing business as: Vernon Downs Casino, Case No. 1:18-cv-07730 (S.D.N.Y., August 24, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. American Racing and Entertainment, LLC, owns and operates horse racing, casinos, resort, and gaming facilities in New York. The Company owns Tioga Downs and Vernon Downs which operate as gaming and horse racing casinos. The Company was founded in 2005 and is based in Nichols, New York.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal AMERICOLLECT INC: Faces Beyer Suit in E.D. Wisconsin ---------------------------------------------------- A class action lawsuit has been filed against Americollect, Inc. The lawsuit is styled as Victoria L. Beyer, Teresa M. Bishop, Maggie J. Bohn, Tom E. Bremer, Michelle R Bremer, Scott M. Broekman, Jason J. Coggon, Colleen Heitpas, Timothy J. Mossberger, Emily J. Switz, and Paula Verrett, individually and on behalf of all others similarly situated, the Plaintiff, v. Americollect, Inc., a Wisconsin Corporation and John Does, the Defendants, Case No. 1:18-cv-01271-WCG (E.D. Wis., Aug. 16, 2018). The suit alleges Fair Debt Collection Act violation. The case is assigned to the Hon. Judge William C Griesbach. Americollect provides debt collection services to healthcare industry. The company offers hospital collection, radiology collection, and medical collection.[BN] The Plaintiff is represented by: Andrew T Thomasson, Esq. STERN THOMASSON LLP 150 Morris Ave-2nd Fl. Springfield, NJ 07081 Telephone: (973) 379 7500 Facsimile: (973) 532 5868 E-mail: andrew@sternthomasson.com AMERISOURCEBERGEN: Masiowski RICO Suit Transferred to N.D. Ohio --------------------------------------------------------------- The case captioned Michael Masiowski, M.D. on behalf of himself and all others similarly situated, v. Amerisourcebergen Drug Corporation, Cardinal Health, Inc., Mckesson Corporation, Purdue Pharma L.P., Purdue Pharma, Inc., The Purdue Frederick Company, Inc., Teva Pharmaceutical Industries, Ltd., Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Orthomcneil- Janssen Pharmaceuticals, Inc. (now Janssen Pharmaceuticals, Inc.), Janssen Pharmaceutica Inc. (now Janssen Pharmaceuticals, Inc.), Noramco, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Allergan PLC (formerly Actavis PLS), Watson Pharmaceuticals, Inc. (now Actavis, Inc.), Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc. (formerly Watson Pharma, Inc.), Insys Therapeutics, Inc. Mallinckrodt PLC and Mallinckrodt LLC, Defendants, Case No. 18-cv-02080 (D. S.C., March 27, 2018), was transferred to the U.S. District Court for the Northern District of Ohio on August 20, 2018, under Case No. 18-op-45985. Masiowski, an emergency room physician, seeks redress over violations of the Racketeer Influenced and Corrupt Organizations Act. Defendants are pharmaceutical companies that are into developing, marketing, advertising promoting and selling prescription pharmaceuticals that allegedly contain opioids which have narcotic effects and may cause addiction. [BN] Michael Masiowski is represented by: Dean Anthony Hayes, Esq. MCCABE TROTTER AND BEVERLY PO Box 212069 4500 Fort Jackson Boulevard, Suite 250 Columbia, SC 29221 Tel: (803) 724-5000 Fax: (803) 724-5001 Email: dean.hayes@mccabetrotter.com AMPIO PHARMA: Rosen Law Firm Probes Securities Claims ----------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Aug. 8 disclosed that it is investigating potential securities claims on behalf of shareholders of Ampio Pharmaceuticals, Inc. (NYSE: AMPE) resulting from allegations that Ampio may have issued materially misleading business information to the investing public. On August 7, 2018, during aftermarket hours, Ampio filed a Form 8-K with the SEC providing a regulatory update on the FDA's review of Ampion, including the AP-003-A and AP-003-C trials. Ampio disclosed that it met with the FDA in July 2018 and received a response letter thereto, which stated that "as a single trial[,] the AP-003-A study alone does not appear to provide sufficient evidence of effectiveness to support [the Biologics License Application]." The FDA further provided that "the FDA does not consider the AP-003-C trial to be an adequate and well-controlled clinical trial." On this news, shares of Ampio's stock fell sharply during intraday trading on August 8, 2018. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by Ampio investors. If you purchased shares of Ampio please visit the firm's website at http://www.rosenlegal.com/cases-1397.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen—firm. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] AT&T MOBILITY: Faces Allen Suit over Pregnancy Discrimination ------------------------------------------------------------- CYNTHIA ALLEN, individually and on behalf of all others similarly situated, Plaintiff v. AT&T MOBILITY SERVICES LLC a/k/a AT&T MOBILITY LLC, and AT&T SERVICES, INC., Defendants, Case No. 1:18-cv-03730-MHC-JKL (N.D. Ga., Aug. 3, 2018) alleges violation of the Pregnancy Discrimination Act and the Americans with Disabilities Act. Ms. Allen alleges in the complaint that she faced discrimination and suffered adverse employment consequences—including, ultimately, termination, when the Defendants refused to excuse absences for pregnancy, childbirth, and related medical conditions under their Sales Attendance Guidance policy. AT&T Mobility LLC provides wireless voice and data communications services and products to individual and business users in the United States. AT&T Mobility LLC was formerly known as Cingular Wireless LLC and changed its name to AT&T Mobility LLC in January 2007. The company was founded in 2000 and is based in Atlanta, Georgia. AT&T Mobility LLC operates as a subsidiary of AT&T, Inc. The Plaintiff is represented by: Sean J. Young, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 E-mail: syoung@acluga.org - and - Kalpana Kotagal, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: kkotagal@cohenmilstein.com - and - Lenora M. Lapidus, Esq. Gillian L. Thomas, Esq. AMERICAN CIVIL LIBERTIES UNION WOMEN'S RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 E-mail: llapidus@aclu.org gthomas@aclu.org BABCOCK & WILCOX: Court Stays Shareholder Derivative Litigation --------------------------------------------------------------- The United States District Court for the Western District of North Carolina, Charlotte Division, granted Parties' Joint Motion for Stay of Litigation in the case captioned IN RE BABCOCK & WILCOX ENTERPRISES, INC. SHAREHOLDER DERIVATIVE LITIGATION, This Document Relates To: ALL ACTIONS. Lead No. 3-18-CV-347-MOC-DCK,, Consolidated with Nos. 3:18-CV-349-MOC-DCK and 3:18-CV-350-MOC-DCK. (W.D.N.C;) This matter before the Court on the Joint Motion For Stay Of Litigation And Related Matters, filed by Plaintiffs Mike DeAngelis, Dan Hegeman, and Bud and Sue Frashier Family Trust (Plaintiffs), Jenny L. Apker, Daniel W. Hoehn, Leslie Kass, E. James Ferland, Stephen G. Hanks, Larry L. Weyers, Thomas A. Christopher, Brian K. Ferraioli, Anne R. Pramaggiore, and Cynthia S. Dubin (Individual Defendants), and nominal defendant Babcock & Wilcox Enterprises, Inc. (B&W or the Company, and together with the Individual Defendants, the Defendants). Having carefully considered the motion and the record, and noting the parties' agreement, the undersigned will grant the motion. All proceedings and deadlines in this consolidated derivative action (Action) are hereby stayed until the earlier of (i) the close of discovery in Ollila v. Babcock & Wilcox Enterprises, Inc. et al., Case No. 3:17-cv-109-MOC-DCK (W.D.N.C.) (Securities Class Action), or (ii) the deadline for appealing a judgment entered in the Securities Class Action. This Order shall apply to each purported derivative action arising out of the same or substantially the same transactions or events as this Action that is subsequently filed in, removed to, or transferred to this Court. Notwithstanding the stay of this Action, if a case that properly belongs as part of this consolidated Action is hereafter filed in this Court or transferred here from another court, Plaintiffs' Co-Lead counsel shall promptly call to the attention of the Court the filing or transfer of any case that might properly be consolidated as part of this Action. A full-text copy of the District Court's August 13, 2018 Order is available at https://tinyurl.com/ycn2on7g from Leagle.com. Mike Deangelis, Derivatively on Behalf of Babcock & Wilcox Enterprises, Inc., Plaintiff, represented by Craig W. Smith -- csmith@robbinsarroyo.com -- Robbins Arroyo LLP, pro hac vice, Kurt F. Hausler , Hausler Law Firm, PLLC, Steven R. Wedeking -- swedeking@robbinsarroyo.com -- Robbins Arroyo LLP, pro hac vice, Shane P. Sanders -- ssanders@robbinsarroyo.com -- Robbins Arroyo LLP, pro hac vice & Timothy W. Brown , The Brown Law Firm, P.C., pro hac vice. Dan Hegeman, Derivatively on Behalf of Babcock & Wilcox Enterprises, Inc. & Bud and Sue Frashier Family Trust, Derivatively on Behalf of Babcock & Wilcox Enterprises, Inc., Plaintiffs, represented by Craig W. Smith , Robbins Arroyo LLP, pro hac vice, Kurt F. Hausler , Hausler Law Firm, PLLC, Steven R. Wedeking , Robbins Arroyo LLP, pro hac vice & Shane P. Sanders , Robbins Arroyo LLP, pro hac vice. E. James Ferland, Jenny L. Apker, Daniel W. Hoehn, Leslie Kass, Thomas A. Christopher, Cynthia S. Dubin, Brian K. Ferraioli, Stephen G. Hanks, Anne R. Pramaggiore & Larry L. Weyers, Defendants, represented by Jason R. Outlaw -- jason.outlaw@alston.com -- Alston & Bird, LLP, pro hac vice, John Ludlow Latham -- jlatham@alston.com -- Alston & Bird, LLP, pro hac vice, Susan E. Hurd -- susan.hurd@alston.com -- Alston & Bird, pro hac vice & Thomas G. Walker -- thomas.walker@alston.com -- Alston & Bird, LLP. BASF SE: Era Polymers Suit Alleges Antitrust Violation ------------------------------------------------------ Era Polymers Propriety Ltd., on behalf of itself and all others similarly situated v. BASF SE, BASF Corporation, Bayer A.G., Bayer Corporation, Covestro AG, Covestro LLC, DowDuPont Inc., The Dow Chemical Company, Huntsman International LLC, Wanhua Chemical Group Co., Ltd., and Wanhua Chemical (America) Co., Ltd., Case No. 2:18-cv-12357 (E.D. Mich., July 30, 2018), is brought against the Defendants for violation of the Sherman Antitrust Act. The Plaintiff alleges a conspiracy among Defendants and certain unnamed co-conspirators, starting no later than July 1, 2016 and continuing through the present, to fix, raise, maintain or stabilize prices for Isocyanates sold in the United States, its territories and the District of Columbia. The Plaintiff Era Polymers Proprietary Limited is an Australian company with its principal place of business in New South Wales, Australia. Plaintiff also has offices in the United States in Texas, North Carolina, and Connecticut. Plaintiff purchased Isocyanates in the United States directly from one or more of the Defendants during the Class Period. The Defendants manufactured and sold Isocyanates to purchasers in the United States and elsewhere, directly or through predecessors, affiliates and subsidiaries. [BN] The Plaintiff is represented by: Patrick E. Cafferty, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 220 Collingwood Drive, Ste 130 Ann Arbor, MI 48103 Tel: (734) 769-2144 E-mail: pcafferty@caffertyclobes.com - and - Jeffrey B. Gittleman, Esq. Chad Carder, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Tel: (215) 963-0600 E-mail: jgittleman@barrack.com ccarder@barrack.com BEST BUY: Harris Appeals N.D. California Decision to 9th Circuit ---------------------------------------------------------------- Plaintiff Starvona Harris filed an appeal from a court ruling in her lawsuit styled Starvona Harris v. Best Buy Stores, L.P., Case No. 4:17-cv-00446-HSG, in the U.S. District Court for the Northern District of California, Oakland. The appellate case is captioned as Starvona Harris v. Best Buy Stores, L.P., Case No. 18-80100, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, on Feb. 11, 2015, Plaintiff Harris filed a Fair Labor Standards Act collective action and California class action lawsuit against her former employer, Best Buy, for violations of wage and hour laws. The district court granted summary judgment as to Ms. Harris's unpaid overtime claim under FLSA and California law, because, during the fiscal months she earned Monthly STI Bonuses, she did not work overtime hours in the same workweek she earned a Path to Excellence bonus. As a result, Ms. Harris' federal and state overtime claims were dismissed, and, ultimately, the district court declined to exercise supplemental jurisdiction over the remaining state law claims, and dismissed the case without prejudice. On Dec. 29, 2016, Plaintiffs Harris and Jonathan Strickland filed the instant lawsuit in state court alleging violations of California unpaid wage and overtime law. The case was removed to federal court under the Class Action Fairness Act.[BN] Plaintiff-Petitioner STARVONA HARRIS, individually and on behalf of all others similarly situated, is represented by: Kevin Francis Woodall, Esq. WOODALL LAW OFFICES 580 California Street San Francisco, CA 94104 Telephone: (415) 439-4803 E-mail: kevin@kwoodalllaw.com - and - Page R. Barnes, Esq. FOLEY & LARDNER LLP 555 California Street San Francisco, CA 94104 Telephone: (415) 434-4484 E-mail: page@pbarneslaw.com Defendant-Respondent BEST BUY STORES, L.P., is represented by: Barbara Jean Miller, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 E-mail: barbara.miller@morganlewis.com BLACKROCK INST'L: Joint Discovery Letters Order in "Baird" Issued ----------------------------------------------------------------- Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California has issued an order regarding the parties' four joint discovery letters on June 7, 2018, and a fifth joint discovery letter on June 8, 2018, in the case, CHARLES BAIRD, et al., Plaintiffs, v. BLACKROCK INSTITUTIONAL TRUST COMPANY, N.A., et al., Defendants, Case No. 17-cv-01892-HSG (KAW) (N.D. Cal.). On April 5, 2017, the Plaintiffs filed the instant putative class action against the Defendants, alleging violations of the Employee Retirement Income Security Act's ("ERISA") fiduciary duty and prohibited transactions provisions. The Plaintiffs bring the case on behalf of two classes: the BlackRock Plan Class, which consists of participants and beneficiaries in the BlackRock Retirement Savings Plan; and the CTI Class, which includes participants whose individual accounts were invested in BlackRock proprietary collective trust investment funds ("CTIs"). The Plaintiffs allege that the Defendants violated their fiduciary duties under ERISA in two ways. First, they allege that Defendant BlackRock sponsored a 401(k) plan for its employees, in which it offers an investment menu consisting almost entirely of BlackRock proprietary funds, and charges participants excessive, hidden fees, expenses and other compensation paid to BlackRock and its affiliates, through a layered fund structure. Second, the Plaintiffs allege that Defendant BlackRock Institutional Trust Co. ("BTC"), which provides management services, gave itself and its affiliates preferential treatment as to compensation paid by the BlackRock CTIs. This alleged preferential treatment included paying itself excessive fees for securities lending services. Joint Discovery Letter No. 1 concerns the Plaintiff's Request for Production No. 33, which seeks documentation and communications concerning changes to revenue sharing splits between Defendant BlackRock and investors in iShares1 ETFs and mutual funds for securities lending revenue. These ETFs and mutual funds are not at issue in the case. The Magistrate Judge orders the parties to engage in further meet and confer, so that the Plaintiffs can more clearly define what documents they really want from the request, taking into account proportionality and burden. Joint Discovery Letter No. 2 concerns the Plaintiff's Request for Production No. 34, which seeks documents concerning the gross and net profits that Defendant BlackRock and its affiliates earn from providing securities lending services to the BlackRock CTIs. The Plaintiffs assert that this goes to whether the fees charged for the securities lending fees are reasonable. Whether the fees are reasonable, in turn, goes to the Defendants' argument in their motion to dismiss that the securities lending fee is permitted because it is reasonable compensation under Section 408(b)(8). The Magistrate Judge finds that information regarding the cost of the securities lending services provided by BTC is relevant to whether the fees are reasonable. To the extent the Defendants assert that they do not perform a profitability analysis and that calculations of gross and net profits do not exist, the Defendants are not required to create or produce documents that do not already exist. They are, however, required to produce the information that does exist. Joint Discovery Letter No. 3 concerns the Defendants' privilege log. The parties dispute whether certain entries should have been produced per the fiduciary exception to attorney-client privilege. The Magistrate Judge finds that these documents do not concern legal advice; instead, they are brief descriptions of the general topic that in-house counsel will be providing at an upcoming meeting. The redacted information does not describe what the legal advice is. Therefore, Entry Nos. 61-70 must be produced. Joint Discovery Letter No. 4 concerns the Defendants' Request for Production Nos. 12-14, which seek discovery related to the Plaintiff's typicality and adequacy as class representatives. The Plaintiffs have identified three non-privileged documents that are "arguably responsive" to Defendants' Requests, but refuse to produce them because they are "not relevant." The Magistrate Judge holds that the documents must be produced. It is not clear why the responsive documents would not have some relevance as well. Further, the production of three documents is significantly lower than the forensic imaging of a party's electronic device, the latter of which would involve a multitude of documents that would be completely immaterial to the instant case. Finally, Joint Discovery Letter No. 5 concerns the Plaintiffs' Request for Production No. 20, which seeks documents concerning the investment of securities lending cash collateral for the BlackRock CTIs. The Magistrate Judge concludes that the requested discovery is permissible. She will, however, limit the discovery of how the STIFs' investments were selected and monitored to the synthetic STIFs only, as Plaintiffs have only alleged that there was undue risk as to those particular STIFs. Otherwise, the Plaintiffs' allegations regarding the investment in BTC-proprietary STIFs are concerned with the expenses charged, not the specific investments chosen by the non-synthetic STIFs. Magistrate Judge Westmore required production of the following discovery: (i) all responsive documents to the Plaintiffs' Request for Production No. 34, to the extent such documents already exist; (ii) privilege log Entry Nos. 39 and 61-70; (iii) the three non-privileged documents in response to the Defendants' Request for Production Nos. 12-14; and (iv) all responsive documents to the Plaintiffs' Request for Production No. 20, excluding documents concerning the selection and monitoring of investments in non-synthetic STIFs. As to the Plaintiffs' Request for Production No. 33, the parties are ordered to meet and confer (preferably in person) to narrow the request, taking into consideration both proportionality and the Court's finding that the documents requested are relevant to the Plaintiffs' case. If the parties are unable to reach an agreement regarding the scope of the document production, the parties will file another joint letter (not to exceed five pages) explaining each issue remaining in dispute, each party's final substantive position, and final proposed compromise on each issue, including relevant legal authority. A full-text copy of the Court's July 20, 2018 Order is available at https://is.gd/fPzATT from Leagle.com. Charles Baird, individually, and on behalf of all others similarly situated, and on behalf of the BlackRock Retirement Savings Plan, Plaintiff, represented by Nina Rachel Wasow -- nina@feinbergjackson.com -- Feinberg, Jackson, Worthman & Wasow LLP, Daniel Ryan Sutter, Cohen Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz -- jhorwitz@cohenmilstein.com -- Cohen Milstein Sellers Toll, Julie S. Selesnick, Cohen Milstein Sellers & Toll, PLLC, Karen L. Handorf -- khandorf@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, pro hac vice, Mary Joanne Bortscheller , Cohen Milstein Sellers Toll PLLC, Michelle C. Yau -- myau@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, pro hac vice & Todd F. Jackson -- todd@feinbergjackson.com -- Feinberg, Jackson, Worthman and Wasow LLP. Lauren Slayton, Plaintiff, represented by Nina Rachel Wasow, Feinberg, Jackson, Worthman & Wasow LLP, Daniel Ryan Sutter, Cohen Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz, Cohen Milstein Sellers Toll & Mary Joanne Bortscheller, Cohen Milstein Sellers Toll PLLC. BlackRock Institutional Trust Company, N.A., Blackrock, Inc., The BlackRock, Inc. Retirement Committee & The Investment Committee of the Retirement Committee, Defendants, represented by Brian David Boyle -- bboyle@omm.com -- O'Melveny Myers LLP, Adam Manes Kaplan -- akaplan@omm.com -- O'Melveny & Myers LLP, Meaghan McLaine VerGow -- mvergow@omm.com -- OMelveny and Myers LLP & Randall W. Edwards -- edwards@omm.com -- O'Melveny & Myers LLP. Catherine Bolz, Chip Castille, Paige Dickow, Daniel A. Dunay, Jeffrey A. Smith, Anne Ackerley, Any Engel, Nancy Everett, Joseph Feliciani, Jr., Ann Marie Petach, Michael Fredericks, Corin Frost, Daniel Gamba, Kevin Holt, Chris Jones, Philippe Matsumoto, John Perlowski, Andy Phillips, Kurt Schansinger & Tom Skrobe, Defendants, represented by Brian David Boyle, O'Melveny Myers LLP, Randall W. Edwards, O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny and Myers LLP & Michael John McCarthy, Boies Schiller and Flexner LLP. Amy Engel, Defendant, represented by Brian David Boyle, O'Melveny Myers LLP & Meaghan McLaine VerGow, OMelveny and Myers LLP. BMW: FTC Pursuing Adoption of Class Action System for Consumers --------------------------------------------------------------- Kwack Jung-soo and Heo Seung, writing for Hankyoreh, report that the Fair Trade Commission (FTC) is actively pursuing the adoption of a class action system to improve the efficacy of restitution for consumers after a recent string of fires involving BMW vehicles. The Ministry of Land, Infrastructure and Transport (MOLIT) is also considering adoption of a punitive damage system as a measure to improve current automobile recall practices. Speaking on Aug. 7 about plans for improving customer restitution measures after the BMW fires, an FTC senior official explained, "Restitution for damages is not easy under the current law, as the consumer [plaintiff] is responsible for proving everything including defects in the products, loss of life, injury, property damage, and the causal relationship between the product defect and damages to the consumer." "A class action system will need to be introduced to improve the efficacy of restitution for consumer damages," the official said. Under a class action system, a legal victory for one victim in a case involving damages to multiple people due to a company's error entitles the other victims to restitution from the perpetrator without separate legal action. It is an efficient approach in cases that involve large numbers of victims but relatively small individual damages. It has been introduced in countries such as the US, the UK, and Canada; in South Korea, it was introduced in the area of securities in 2005 to protect the interests of small shareholders. Regarding areas where the class action system could be adopted first for consumer compensation, the FTC suggested the Product Liability Act and the Act on Fair Indication and Advertisement. Kim Gyeong-wook, director of the MOLIT transportation and distribution office, said the ministry planned to "consult with the FTC and other authorities on whether to introduce a punitive damage system for automobiles." "If it is not possible to introduce it through the Product Liability Act regulating the general punitive damage system, we are also considering doing it through the Automobile Management Act or new legislation," Kim added. A punitive damage system was previously introduced in April through the Product Liability Act. But with its targets restricted to "companies that ignored product defects despite being aware of them," observers have suggested it is inadequate to apply to incidents involving automobile recalls. Under a punitive damage system, offenders are subject to far larger penalties than actual damages – up to three times in South Korea -- in cases of actions deemed malicious or antisocial. MOLIT is also considering steps to establish a legal basis for penalties in cases where a manufacturer deliberately conceals or minimizes a vehicle defect that it is aware of. Under the current system, penalties of up to 1 percent of sales for the automobile in question are possible only in cases of "belated recalls," with provisions for criminal punishment only in cases of deliberate concealment or minimization. South Korea has experienced a number of cases where manufacturers have responded halfheartedly to automobile defect issues due to the lack of an adequate system for damages in connection with them. BMW has explained that it was investigating the occurrence of fires in its diesel models in Europe in 2016 and happened to rectify the issue with improvements to its EGR model that December. In South Korea, however, it ignored the issue until nearly 30 fires had occurred this year, belatedly announcing a recall only after a recommendation from MOLIT. [GN] BROADHURST THEATRE: Faces Reyes Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Broadhurst Theatre. The lawsuit is styled as Jose Reyes, on behalf of himself and all others similarly situated, the Plaintiff, v. Broadhurst Theatre, LLC, doing business as: Broadhurst Theatre, the Defendant, Case No. 1:18-cv-07481 (S.D.N.Y., Aug. 16, 2018). The suit alleges Americans with Disabilities Act violation. Broadhurst Theatre is a Broadway theatre located at 235 West 44th Street in Midtown Manhattan. It was designed by architect Herbert J. Krapp.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465 1188 Facsimile: (212) 465 1181 E-mail: cklee@leelitigation.com BROWN OLCOTT: Sandoval Hits Retaliation, Seeks Unpaid OT Wages -------------------------------------------------------------- Heather Sandoval and Debbie Miller, on behalf of themselves and all others similarly situated, Plaintiff, v. Brown Olcott PLLC, and Philip Brown, Defendants, Case No. 18-cv-00423, (D. Ariz., August 21, 2018), seeks to recover unpaid overtime compensation, liquidated damages, costs and attorneys' fees under the provisions of the Fair Labor Standards Act. Sandoval and Brown worked for the Defendants as legal assistant, collector and paralegal. They claim to have regularly worked more than 40 hours per work week without overtime compensation. Sandoval, through counsel, pursued these claims and in direct response and retaliation, Defendants threatened to file and prosecute claims against her so that she would face substantial liability. On August 20, 2018, the Defendants filed a lawsuit in United States District Court for the District of Arizona against Sandoval alleging violations of the Defend Trade Secrets Act and the Stored Communications Act and state law claims for breach of contract in retaliation. [BN] Plaintiff is represented by: Jonathan A. Dessaules, Esq. DESSAULES LAW GROUP 5353 North 16th Street, Suite 110 Phoenix, AZ 85016 Tel. (602) 274-5400 Fax (602) 274-5401 Email: jdessaules@dessauleslaw.com CA INC: Faces Shareholder Class Action Over Broadcom Merger ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that directors are selling CA Inc. too cheaply through an unfair process to Broadcom, for $44.50 a share or $18.9 billion, shareholders of the software company say in a federal class action. CAMBREX CORP: Reaches Settlement with Remaining Plaintiffs ---------------------------------------------------------- Cambrex Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that Mylan Laboratories, Inc., Gyma Laboratories, Inc., and Cambrex have reached a settlement with the remaining plaintiffs in the class action lawsuit related to Lorazepam and Clorazepate. In 1998, the Company and a subsidiary were named as defendants along with Mylan Laboratories, Inc. ("Mylan") and Gyma Laboratories, Inc. ("Gyma") in a proceeding instituted by the Federal Trade Commission in the United States District Court for the District of Columbia (the "District Court"). Suits were also commenced by several State Attorneys General and class action complaints by private plaintiffs in various state courts. The suits alleged violations of the Federal Trade Commission Act arising from exclusive license agreements between the Company and Mylan covering two APIs (Lorazepam and Clorazepate). In 2003, Cambrex paid $12,415 to Mylan in exchange for a release and full indemnity against future costs or liabilities in related litigation brought by the purchasers of Lorazepam and Clorazepate, as well as potential future claims related to the ongoing matter. Following trial in 2008 in the sole remaining case brought by four health care insurers, the District Court entered judgment against Mylan, Gyma and Cambrex. The judgment was appealed to the United States Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") in 2011, resulting in a remand to the District Court. On remand, the District Court dismissed certain self-funded customer plaintiffs due to their failure to satisfy the requirements of federal jurisdiction. Subsequently, the District Court entered an order remitting certain damages. Without fees, costs, or post-judgment interest, the current judgment against Mylan, Gyma, and Cambrex was $67,260. Mylan, Gyma, and Cambrex again appealed to the D.C. Circuit. In July 2018, Mylan, Gyma, and Cambrex reached a settlement with the remaining plaintiffs. After the settlement is finalized, Mylan, Gyma, and Cambrex will file a motion to vacate the judgment. Cambrex has been fully indemnified by Mylan for the settlement payments. Cambrex Corporation, a life sciences company, provides various products and services for the development and commercialization of new and generic therapeutics worldwide. Its products comprise active pharmaceutical ingredients and pharmaceutical intermediates that are used in the production of prescription and over-the-counter drug products, as well as other fine chemicals. Cambrex Corporation was founded in 1981 and is headquartered in East Rutherford, New Jersey. CARNIVAL CORP: Faces Wolfe Suit Over Insurance-Related Issues ------------------------------------------------------------- A class action lawsuit has been filed against Carnival Corporation, doing business as Carnival Cruise Lines. The case is titled James Wolfe, Sonia Hernandez, Miguel Hernandez, Erika Bruce, Shivon Harris and Samad Rainey, on behalf of themselves and all others similarly situated v. Carnival Corporation, doing business as: Carnival Cruise Lines, a foreign corporation, Case No. 1:18-cv-23463-KMW (S.D. Fla., August 24, 2018). The lawsuit is brought over insurance-related issues. Carnival Corporation operates as a leisure travel and cruise company. The Company offers cruises under the Carnival Cruise Line, Holland America Line, Princess Cruises, and Seabourn brands in North America; and AIDA, Costa, P&O Cruises (Australia), Cunard, and P&O Cruises (UK) brands in Europe, Australia, and Asia. The Company operates approximately 100 cruise ships and owns Holland America Princess Alaska Tours, a tour company in Alaska; and the Canadian Yukon, which owns and operates hotels, lodges, glass-domed railcars, and motor coaches.[BN] The Plaintiffs are represented by: Howard Mitchell 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: howard@moskowitz-law.com joseph@moskowitz-law.com - and - Kimberly Lambert Adams, Esq. LEVIN PAPANTONIO THOMAS MITCHELL ECHSNER & PROCTER 316 S Baylen Street, Suite 600 Pensacola, FL 32502 Telephone: (850) 435-7056 Facsimile: (850) 435-7019 E-mail: Klambert@levinlaw.com - and - William F. Merlin, Jr., Esq. MERLIN LAW GROUP PA 777 S Harbour Island Boulevard, Suite 950 Tampa, FL 33602 Telephone: (813) 229-1000 Facsimile: (813) 229-3692 E-mail: cmerlin@merlinlawgroup.com - and - Adam M. Moskowitz, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134-6036 Telephone: (305) 740-1423 E-mail: adam@moskowitz-law.com CBS CORP: 9th Cir. Reverses Summary Ruling in Copyrights Suit ------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, reversed the District Court's judgment granting Defendants' Motion for Summary Judgment in the case captioned ABS ENTERTAINMENT, INC., an Arkansas corporation; BARNABY RECORDS, INC., a New York corporation; BRUNSWICK RECORD CORPORATION, a New York PA-AGR corporation; MALACO INC., a Mississippi corporation, each individually and on behalf of all others similarly situated., Plaintiffs-Appellants, v. CBS CORPORATION, a Delaware corporation; CBS RADIO, INC., a Delaware corporation; DOES, 1 through 10, Defendants-Appellees, No. 16-55917 (9th Cir.). Appellants ABS Entertainment, Inc., Barnaby Records, Inc., Brunswick Record Corp. and Malaco, Inc. (ABS) appeal from the grant of summary judgment by the Central District of California in favor of CBS Corporation and CBS Radio, Inc. (CBS), holding that CBS did not violate any state law copyrights possessed by ABS in sound recordings originally fixed before 1972. ABS filed a putative class action against CBS in the Central District of California, alleging that CBS's transmission and distribution of the remastered sound recordings violated California state law specifically, California Civil Code Section 980(a)(2) ,protecting the property rights of an author of a sound recording fixed prior to February 15, 1972); misappropriation and conversion; and unfair competition, under California Business and Professions Code Section 17200. The district court decided two important evidentiary issues and granted summary judgment to CBS. The district court excluded Geluso's testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90 (1993) as unscientific and unnecessary to aid a fact finder capable of listening to the sound recordings on his or her own and alternatively because Geluso's testimony was irrelevant. The court reasoned that Geluso limited his forensic analysis to only the first five seconds of each sound recording, which was clearly inadequate to rule out the possibility that non-trivial differences exist between the pre-1972 and remastered sound recordings. The court also rejected Geluso's reliance on critical listening as undefined and unscientific, and objected to Geluso's failure to include in his report the results of his phase inversion testing, which the court categorized as adverse to Plaintiffs' position. The district court concluded that the Triton Reports were hearsay and did not fall within the business records exception because Plaintiffs have failed to establish any one of the requirements necessary for them to be admitted under the business records exceptions. The district court thus concluded that ABS had failed to raise a genuine issue of material fact as to CBS's transmission or broadcast in California of all but the 48 samples both parties agree CBS transmitted. The constitutional purpose of copyright law is to promote the Progress of Science and the useful Arts by securing to authors the right to their original expression, but encouraging others to build freely upon the ideas and information conveyed by a work. A product of independent creation is distinguished from a copy in that it contains something which owes its origin to the independent creator. A copy, on the other hand, is not a separate work, but a mere representation or duplication of a prior creative expression. A derivative work is defined in the Copyright Act as a work based upon one or more preexisting works that recasts, transforms, or adapts a preexisting work and consists of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship. A derivative work is copyrightable when it meets two criteria: (1) the original aspects of a derivative work must be more than trivial and (2) the original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material. In this case, the district court determined that at least some perceptible changes were made to Plaintiff's Pre-1972 Sound Recordings and that these changes were not merely mechanical or trivial. Therefore, the district court held, there was no genuine dispute of material fact that the remastered works performed by CBS were sufficiently original. This conclusion was legal error. Here, there is no dispute that all of the sounds contained in the remastered sound recordings the vocals, instruments, inflection, dynamics, rhythms, and sequences were initially fixed in a studio before 1972. There is also no dispute that the remastering engineers did not add or remove any sounds and did not edit or resequence the fixed performances. For these reasons, the remasters presumptively lacked the originality necessary to support copyright protection as derivative works. The district court, in ruling otherwise and concluding that no genuine issues of material fact exist on the originality of the digital remasters, applied an incorrect test. In doing so, the district court placed critical reliance on the testimony of CBS's expert, Begault. Begault explained that the digitally perceptible changes to timbre, spatial imagery, sound balance, and loudness range" that he identified in the remastered sound recordings were measures of sound quality.7Such technical improvements associated with the translation of the analog pre-1972 sound recordings into a digital medium, however, do not support a finding of originality. The district court excluded several paragraphs of Geluso's declaration as unscientific, based on unreliable methodology, lacking adequate foundation as expert testimony, unnecessary and irrelevant. The district court found Geluso's critical listening methods to be unscientific, and unexplained in Mr. Geluso's declaration. But in his declaration, Geluso cited an FBI report on forensic sound recording analysis that held out critical listening as an essential component of forensic audio analysis. Also, despite Geluso's testimony that he critically listened to all of the recordings he examined, the district court found fatally deficient the fact that Geluso limited his waveform and spectral analysis to the first five seconds of each recording. While the shortness of the technical analysis impacts the weight of that testimony, there is no reason to question the science behind or the methodology of such testing for whatever it may show. And the district court failed to explain why five seconds of waveform analysis was insufficient to determine whether the pre-1972 and remastered sound recordings embodied the same performances. Moreover, Geluso's testimony, offered in rebuttal to the testimony of CBS's expert, Begualt, addressed the nature and extent of the differences between the original analog recordings and the digitally remastered sound recordings and was thus directly relevant to the issue of originality before the court. The district court also found deficient the fact that Geluso excluded from his report a phase inversion test from the first test he attempted. But that is not an adequate basis to exclude Geluso's testimony. That test merely identifies the fact of difference something that ABS and Geluso do not contest exists between the pre-1972 and remastered sound recordings. The district court's exclusion of Geluso's testimony was an abuse of discretion, and his testimony should be considered in full by the district court on remand. The second prong of the U.S. Auto Parts/Durham test requires that a copyright-eligible derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material. U.S. Auto Parts, 692 F.3d at 1016. The district court's failure to fully consider this second prong here was legal error. Moreover, applying that prong, there is at least a genuine issue of material fact whether granting copyright protection for the remastered sound recordings here would undermine ABS's rights in the pre-1972 sound recordings to authorize additional derivative works. Were ABS intent on granting an authorization to create an intentionally derivative work, for example by authorizing use of the underlying works as samples or remixes, those authorized works would be at high risk of infringement suits from the remastered sound recording copyright holders. This risk would, in effect, grant the remastered sound recording copyright holder a de facto monopoly on derivative works. Indeed, in this case, where the underlying and derivative works are both sound recordings with few, if any, readily discernable differences, and the derivative work is the only one available in the vastly more accessible and marketable digital medium, the danger that the copyright holder of the derivative work could bring suit against a potential licensee of the underlying work is particularly acute. If, on remand, the factfinder concludes that any or all of the remastered sound recordings here do manifest a change sufficient to create a derivative, copyrightable work, the factfinder should also consider the effect of recognizing a copyright in the remastered sound recording on ABS's ability to exercise whatever copyrights it may possess in the pre-1972 sound recording. The Court concludes that the district court erred in holding that there were no genuine issues of material fact that the remastered sound recordings used by CBS were independently copyright eligible. The Courts therefore reverses the grant of summary judgment to CBS as to that issue. CBS argues that Mr. Neiman, a CBS employee relied upon by ABS to provide the foundation for the business records exception, did not know how the Triton Reports were made or maintained and was not a Triton employee. The Court agrees with ABS that First Termite Control is inapposite here. First Termite Control held that business records, to be admissible under the business records exception, must be supported by testimony of a witness knowledgeable about the creation and maintenance of those records. But in that case, the accuracy of the records was contested. NLRB v. First Termite Control Co., 646 F.2d 424, 427 (9th Cir. 1981) Here, CBS itself relied on the reports to establish its royalty payments to Sound Exchange in the ordinary course of business. The accuracy of the records is not in question. In a similar situation, we have held that third party reports of this kind fall within the business records exception. CBS has presented no evidence or argument showing that the Triton Reports were unreliable or inaccurate. The Court concludes that the district court here erroneously decided a genuine issue of material fact at summary judgment. The Court agrees with ABS that the Triton Reports contain an album title, and sometimes the company label, and so would be sufficient for a jury to infer that the records CBS performed were the versions captured in Plaintiffs' pre-1972 sound recordings. The Triton Reports were used by CBS to govern the royalties paid to recording artists via Sound Exchange; CBS has failed to present evidence that these same reports were not sufficient to identify the recording artists or the versions performed. The district court erred in finding the absence of a genuine issue of material fact with respect to the samples listed in the Triton Reports. Accordingly, the Court reverses the district court's grant of summary judgment. The Court also reverses the district court's striking of ABS's class action motion as untimely, and the exclusion of Geluso's testimony. A full-text copy of the Ninth Circuit's August 20, 2018 Order is available at https://tinyurl.com/yd74pcyd from Leagle.com. Robert Edward Allen -- rallen@mckoolsmith.com -- (argued), Alan P. Block -- ablock@mckoolsmith.com -- Roderick G. Dorman -- rdorman@mckoolsmith.com -- and Lawrence M. Hadley -- lhadley@mckoolsmith.com -- McKool Smith Hennigan P.C., Los Angeles, California; Kathleen E. Boychuck , Andrew Szot , andMarvin A. Miller , Miller Law LLC, for Plaintiffs-Appellants. Robert M. Schwartz -- rschwartz@irell.com -- (argued), Amit Q. Gressel , Andrew J. Strabone -- astrabone@irell.com -- and Victor Jih -- Vjih@irell.com -- Irell & Manella LLP, Los Angeles, California, for Defendants-Appellees. Richard S. Mandel -- rsm@cll.com -- Cown Liebowitz & Latman P.C., New York, New York; George M. Borowsky , Recording Industry Association of America Inc., Washington, D.C.; for Amicus Curiae Recording Industry Association of America Inc. Morgan E. Pietz , Gerard Fox Law P.C., Katrina Novak -- Katrina@lowelaw.com -- Lowe & Associates P.C., Los Angeles, California; for Amicus Curiae California Society of Entertainment Lawyers. CBS CORP: Defending Against Westmoreland Employees' Suit --------------------------------------------------------- CBS Corporation continues to defend against a class action lawsuit by Westmoreland County Employees' Retirement System, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018. On May 31, 2018, Westmoreland County Employees' Retirement System, a purported beneficial owner of the Company's Class B Common Stock, filed a class action complaint in the Delaware Court of Chancery against NAI, NAIEH, Mr. David R. Andelman, Mr. Robert N. Klieger and Ms. Shari Redstone, alleging breaches of contractual obligations, implied obligations and fiduciary duties to the Company's Class B Common Stock holders in connection with the Purported Bylaw Amendments and interference with the issuance by the Company's Board of Directors of the May 2018 Stock Dividend. Westmoreland's complaint seeks a declaratory judgment that the Company's certificate of incorporation authorizes the May 2018 Stock Dividend, that Westmoreland and the class are entitled to the May 2018 Stock Dividend, that the Purported Bylaw Amendments are invalid and other relief. On June 6, 2018, Westmoreland filed a motion to consolidate its lawsuit with the aforementioned actions filed by the Company and certain of its independent directors and by National Amusements, Inc. (NAI), NAI Entertainment Holdings LLC (NAIEH) and Ms. Shari Redstone. On June 11, 2018, NAI, NAIEH and Ms. Shari Redstone opposed that motion and simultaneously filed a motion to stay the lawsuit filed by Westmoreland in favor of the pending consolidated action captioned In re CBS Corporation Litigation. On June 20, 2018, the Delaware Court of Chancery denied both motions, but directed the Westmoreland lawsuit to proceed on the same timetable as, and to be coordinated with respect to discovery and trial with, the aforementioned consolidated action. CBS Corporation operates as a mass media company worldwide. The company operates through four segments: Entertainment, Cable Networks, Publishing, and Local Media. The company was founded in 1986 and is headquartered in New York, New York. CBS CORP: Faces Shareholder Class Action Over 6% Stock Drop ----------------------------------------------------------- Courthouse News Service reported that blaming CBS for a 6 percent stock drop, a shareholder claims in a federal class action that the company concealed details about the widespread workplace sexual harassment committed by CEO Les Moonves. CHESAPEAKE EXPLORATION: Court Certifies Ohio Landowners Class ------------------------------------------------------------- In the case, ZEHENTBAUER FAMILY LAND LP, et al., Plaintiffs, v. CHESAPEAKE EXPLORATION, L.L.C., et al., Defendants, Case No. 4:15CV2449 (N.D. Ohio), Judge Benita Y. Pearson of the U.S. District Court for the Northern District of Ohio, Eastern Division, granted in part the Plaintiffs' Motion for Class Certification. Zehentbauer; Hanover Farms, LP; and Evelyn Frances Young, Successor Trustee of The Robert Milton Young Trust, filed suit against Defendants Chesapeake Exploration L.L.C. ("CELLC"), Chesapeake Operating L.L.C., CHK Utica, L.L.C., Total E&P USA, Inc. ("TEPUSA"), Pelican Energy L.L.C., and Jamestown Resources L.L.C. The Defendants are in the business of oil and gas exploration and production. The Plaintiffs are landowners located throughout eastern and southeastern Ohio who entered into oil and gas lease agreements with Ohio Buckeye Energy, LLC and CELLC. CELLC later merged with Buckeye and acquired Buckeye's lease rights. CELLC then leased those rights to the various Defendants. Though the leases changed hands, the obligations remained unchanged. Under these agreements, the Defendants obtained the Plaintiffs' oil and gas rights in exchange for a combination of fees and royalty payments of varying percentages. The Plaintiffs allege that the Defendants have improperly reduced royalty payments by selling hydrocarbons with greater sale price deductions than is allowable under the agreements. The Plaintiffs split the leases into three subclasses or Groups: Group A, Group B, and Group C. Royalty provisions dictating payments for oil and gas products are common to each lease in the proposed class, although the royalty language varies among the subclasses. Group A's royalty provisions both contain language governing the sale price and royalty percentage, but the gas royalty provisions of the subclass contain a definitional clause and a comparable sales requirement ("CSR") that the oil royalty provision does not. The definitional clause outlines the substances governed by the provision and the CSR governs hydrocarbon sales to corporate affiliates. Both of Group B's royalty provisions contain a CSR and the definitional clause. And finally, Group C's provisions both have the definitional clause, but no CSR. Zehentbauer and Hanover have lease agreements that are a part of Group A and Young has an agreement in Group B. None of the named Plaintiffs, however, have leases in Group C. The Plaintiffs have moved to merge their claims and the claims of the other lessors into one action based upon the common claim that the Defendants improperly reduced the royalties due. Pending is the Plaintiffs' Motion for Class Certification. The class moving to be certified has been defined as all persons entitled to royalty payments from Chesapeake Exploration, LLC, Chesapeake Operating, Inc., CHK Utica, LLC, Total E&P USA, Inc., Pelican Energy, L.L.C., and/or Jamestown Resources, L.L.C. at any time during the years of 2011 to the present under uniform oil and gas leases, known generally as Gross Royalty Leases, (some originally entered by Buckeye Exploration Corp.) which state that the lessors royalty will be the stated percentage of the gross proceeds received by the lessee without any deductions except for a pro-rata share of governmentally imposed taxes and fees, in return for granting rights to produce oil, natural gas, and the constituents thereof from real property located in Ohio. The Defendants do not challenge either the proposed class definition or that each of the named Plaintiffs own "Gross Royalty Leases" that fall within the stated definition. Judge Pearson finds that given the size of the proposed class and the nature of the claims the numerosity requirement is satisfied. The common questions of fact and law presented have satisfied the commonality requirement. The Plaintiffs have also satisfied the typicality requirement of Rule 23(a)(3) with regard to Group A and Group B, but Group C cannot be certified. The adequacy of representation requirement is satisfied given that there are no conflicts of interest present, the Plaintiffs have demonstrated sufficient knowledge of the litigation and their obligations, and their counsel is competent. The Plaintiffs have satisfied the ascertainability requirement implied by Rule 23(a). For the foregoing reasons, she finds that the Plaintiffs have satisfied the numerosity, commonality, typicality, adequacy, and ascertainability requirements of Rule 23(a). The Judge also finds that the Plaintiffs have satisfied the 23(b)(3) requirements. For the foregoing reasons, Judge Pearson granted in part the Plaintiffs' Motion for Class Certification. She certified the class of all persons entitled to royalty payments from Chesapeake Exploration, L.L.C., Chesapeake Operating, L.L.C., CHK Utica, L.L.C., Total E&P USA, Inc., Pelican Energy, L.L.C., and/or Jamestown Resources, L.L.C. at any time during the years of 2011 to the present under uniform oil and gas leases, known generally as Gross Royalty Leases, (some originally entered by Buckeye Exploration Corp.) which state that the lessors royalty will be the stated percentage of the gross proceeds received by the lessee without any deductions except for a pro-rata share of governmentally imposed taxes and fees, in return for granting rights to produce oil, natural gas, and the constituents thereof from real property located in Ohio. A full-text copy of the Court's July 20, 2018 Memorandum of Opinion and Order is available at https://is.gd/Sy5IMV from Leagle.com. Zehentbauer Family Land LP & Hanover Farms LP, Plaintiffs, represented by Dennis E. Murray, Jr., Murray & Murray, Gregory W. Watts -- gwatts@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty, Scott M. Zurakowski -- szurakowski@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty, Terry A. Moore -- tmoore@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty & William H. Bartle, Murray & Murray. Evelyn Frances Young, Successor Trustee of, other Robert Milton Young Trust, Plaintiff, represented by Dennis E. Murray, Jr., Murray & Murray. Evelyn Frances Young, Successor Trustee of, other Robert Milton Young Trust Plaintiff, represented by Gregory W. Watts, Krugliak, Wilkins, Griffiths & Dougherty, Scott M. Zurakowski, Krugliak, Wilkins, Griffiths & Dougherty, Terry A. Moore, Krugliak, Wilkins, Griffiths & Dougherty & William H. Bartle, Murray & Murray. Chesapeake Exploration, L.L.C., Chesapeake Operating, Inc. & CHK Utica, L.L.C., Defendants, represented by Daniel T. Donovan -- daniel.donovan@kirkland.com -- Kirkland & Ellis, Jessica Knopp Cunning -- jkcunning@vorys.com -- Vorys, Sater, Seymour & Pease, Peter A. Lusenhop -- palusenhop@vorys.com -- Vorys, Sater, Seymour & Pease, Seamus C. Duffy, Drinker Biddle & Reath, pro hac vice, Timothy B. McGranor -- tbmcgranor@vorys.com -- Vorys, Sater, Seymour & Pease & William M. Connolly -- william.connolly@dbr.com -- Drinker Biddle & Reath. Total E&P USA, Inc., Defendant, represented by Christopher A. Brown -- Chris.Brown@klgates.com -- Winstead, David H. Ammons, Winstead, J. Nicholas Ranjan -- nicholas.ranjan@klgates.com -- K&L Gates, Jeffrey C. King -- Jeffrey.C.King@klgates.com -- K&L Gates, Jessica Knopp Cunning, Vorys, Sater, Seymour & Pease, Timothy B. McGranor, Vorys, Sater, Seymour & Pease & Travis L. Brannon -- travis.brannon@klgates.com -- K&L Gates. Pelican Energy, L.L.C. & Jamestown Resources, L.L.C., Defendants, represented by Jessica Knopp Cunning, Vorys, Sater, Seymour & Pease, Peter A. Lusenhop, Vorys, Sater, Seymour & Pease & Timothy B. McGranor, Vory, Sater, Seymour & Pease. CHICAGO ATHLETIC: Faces Class Action Over Breach of Contract ------------------------------------------------------------ Jenie Mallari-Torres, writing for Cook County Record, reports that a club member has filed a class action lawsuit against Chicago Athletic Clubs LLC and several other athletic clubs, citing alleged breach of contract and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Lead plaintiff Andy Ambrosius filed a complaint July 30 in Cook County Circuit Court against Chicago Athletic Clubs, Evanston Athletic Club Inc., Lincoln Park Athletic Club Inc., LPAC Holdings LLC, Westloop Athletic Club LLC, Lakeview Athletic Club Inc., Lincoln Square Athletic Club LLC, Wicker Park Athletic Club LLC, Bucktown Athletic Club LLC and Webster Club Athletic Club LLC. According to the complaint, the club abruptly terminated their reward points in connection with the termination of the rewards program, but did not provide the necessary warning. The plaintiff requests a trial by jury and seeks a certification of their class action and an award of actual damages, attorney's fees, costs, interest, and other relief the court deems just. The class is represented by attorneys Thomas Zimmerman Jr., Sharon Harris, Matthew De Re and Nicholas Hagman of Zimmerman Law Offices PC in Chicago. Cook County Circuit Court case number 18-CH-09598 [GN] CHRYSLER: Judge Stays uConnect Technology Class Action ------------------------------------------------------ William Sassani, writing for Madison - St. Clair Record, reports that a federal judge put a class action lawsuit against Chrysler on hold pending an appeal. Chief Judge Michael J. Reagan of the U.S. District Court for the Southern District of Illinois made the decision on July 23 after the car company filed an appeal with the Seventh Circuit Court of Appeals over class certification. Former U.S. Attorney Stephen Wigginton, on behalf of Belleville city attorney Brian Flynn, filed the lawsuit in 2015 against Chrysler over the company's uConnect technology. The suit claims hackers can override the controls of a vehicle and remotely drive it. A Wired magazine article shows a demonstration of a computer operator taking over a Jeep remotely. Chrysler recalled over 1 million vehicles due to the issue. However, the plaintiffs argue this did not solve the problem. Mr. Flynn, along with other plaintiffs, allege Chrysler violated the Magnuson-Moss Warranty Act and state laws protecting consumers. Earlier in August, Judge Reagan ruled the plaintiffs provided evidence of faulty design and installation of the uConnect devices, but threw out fraud and false advertising claims. He also did not find the car company unjustly enriched itself. Judge Reagan also removed Mr. Flynn as the class leader and appointed other car owners in his place. The company that manufactured uConnect for Chrysler, Harman International Industries, faced potential legal action. However, Judge Reagan ruled that the company did not know their systems presented a potential security risk. [GN] CMRE FINANCIAL: Santomauro Suit Asserts FDCPA Violation ------------------------------------------------------- A class action lawsuit has been filed against CMRE Financial Services, Inc. The case is captioned Mark Santomauro, individually and on behalf of all others similarly situated v. CMRE Financial Services, Inc., Case No. 2:18-cv-04819 (E.D.N.Y., August 24, 2018). The Plaintiff alleges violations of the Fair Debt Collection Practices Act. Headquartered in Brea, California, CMRE Financial Services, Inc., provides accounts receivables management services to healthcare organizations. The Company offers collection; self-pay accounts receivables management; insurance and worker's compensation follow-up and rebilling; electronic funds transfer; and managed care services. The Plaintiff appears pro se.[BN] COMENITY BANK: Riley Sues Over Illegal Telemarketing Calls ---------------------------------------------------------- The Plaintiff in the case captioned Susie Riley, on behalf of herself and others similarly situated, Plaintiff, v. Comenity Bank, Defendant, Case No. 18-cv-01159 (W.D. Tenn., August 21, 2018), seeks to recover damages and obtain injunctive relief for injuries caused under the Telephone Consumer Protection Act. The Defendant is a Delaware State FDIC-insured bank and a limited-purpose credit card bank located in Delaware, offering credit programs with affiliated retail stores. Beginning in late 2017 or early 2018, Defendant placed more than 10 telephone calls to Riley's cellular telephone number using an automatic telephone dialing system or an artificial or prerecorded voice in an attempt to solicit credit card applications, notes the complaint. [BN] Plaintiff is represented by: Aaron D. Radbil, Esq. GREENWALD DAVIDSON RADBIL PLLC 106 East Sixth Street, Suite 913 Austin, TX 78701 Telephone: (512) 322-3912 Fax: (561) 961-5684 Email: aradbil@gdrlawfirm.com COMFORT TECHNOLOGY: Faces Kiler Suit in NewYork for ADA Breach -------------------------------------------------------------- A class action lawsuit has been filed against Comfort Technology Systems, LLC. The case is entitled Marion Kiler, Individually and as the representative of a class of similarly situated persons v. Comfort Technology Systems, LLC doing business as: Therafit Shoe, Case No. 1:18-cv-04826 (E.D.N.Y., August 24, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Comfort Technology Systems, LLC, doing business as Therafit Shoe, sells footwear, including shoes, sandals and boots. The Company operates the Web site https://therafitshoe.com/.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Telephone: (917) 373-9128 Facsimile: (718) 504-7555 E-mail: shakedlawgroup@gmail.com COOK COUNTY, IL: Zimmerman Law Offices Files Class Action --------------------------------------------------------- Attorney Thomas Zimmerman of the Chicago-based Zimmerman Law Offices on Aug. 8 filed a class action lawsuit against Cook County Sheriff Tom Dart, and the County of Cook, Illinois. The suit alleges the Cook County Sheriff's Office has a policy of mandating that its Sheriff's deputies secretly monitor in real time and video record all pretrial detainees while they use the toilets in holding cells. The video recordings can be viewed by Sheriff's deputies for 30 days. The case, Elizabeth Alicea, et al. v. County of Cook, et al., was filed in the federal U.S. District Court for the Northern District of Illinois. Pretrial detainees are temporarily held in Cook County holding cells while they wait to see a judge to post bail after an arrest. Every holding cell has a toilet, and there are solid partitions or dividing walls that separate the toilet area from the rest of the holding cell so that the person cannot be seen by anyone else in the cell. However, according to the suit, hidden cameras installed in the holding cells have an unobstructed view of the toilet and a person's genitals when he/she is using the toilet. The video feeds from the holding cell cameras are continually monitored by Cook County Sheriff's deputies from a monitoring room that is staffed by both male and female Sheriff's deputies who monitor all pretrial detainees -- regardless of whether they are male or female -- in the holding cells. The complaint alleges that all pretrial detainees are searched prior to being placed in a holding cell, and there are no oral or written notifications that the people are being monitored while they are using the toilet. According to the complaint, the Sheriff's conduct of monitoring pretrial detainees when using the toilet constitutes an unconstitutional search in violation of the Fourth and Fourteenth Amendments, and also constitutes an invasion of privacy. The lawsuit seeks to halt this secret monitoring and compensate the pretrial detainees for their humiliation and embarrassment. According to Thomas A. Zimmerman, Jr., counsel for the plaintiffs, "Even when they are in the Sheriff's custody, people retain an expectation of privacy in their naked bodies, genitals, and bodily functions, and they have a right to prevent their naked bodies from be viewed by members of the opposite sex." At the press conference, two of the plaintiffs will be present for comment, and copies of the class action lawsuit and a photograph of a toilet from a holding cell camera feed will be distributed. Contacts: Thomas A. Zimmerman, Jr. Zimmerman Law Offices, P.C. 77 West Washington Street, Suite 1220 Chicago, Illinois 60602 Telephone: (312) 440-0020 E-mail: tom@attorneyzim.com Website: http://www.attorneyzim.com[GN] CRA SOLUTIONS: Denied Payment of OT Wages, MacAlpine Suit Says --------------------------------------------------------------- Jaime MacAlpine, on behalf of herself and all others similarly situated, Plaintiff, v. CRA Solutions, Inc., Defendant, Case No. 18-cv-61986, (S.D. Fla., August 22, 2018), seeks damages and other relief relating to violations of the Fair Labor Standards Act for failing to pay overtime at one and one-half the regular rate of pay for all overtime hours worked within a workweek. CRA provides monitoring and study management services to medical device, pharmaceutical and biotechnology companies. MacAlpine worked for Defendant as a clinical research associate and claims to have been misclassified as independent contractor and denied overtime compensation for hours worked over forty per week. [BN] Plaintiff is represented by: Richard Celler, Esq. Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 Email: richard@floridaovertimelawyer.com noah@floridaovertimelawyer.com DAIRYAMERICA INC: Court Grants Request to Seal Document ------------------------------------------------------- The United States District Court for the Eastern District of California granted Plaintiffs' Request to Seal Document and File Redacted Version in the case captioned GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all other similarly situated, Plaintiffs, v. DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09-CV-0430 AWI-EPG (E.D. Cal.). The Plaintiffs are permitted to file a redacted version of the Confidential Side Letter, attached as Exhibit B to Plaintiffs' Memorandum in Support of the Unopposed Motion for Preliminary Approval of Class Action Settlement on the public docket. The Plaintiffs will email the unredacted version of the document to ApprovedSealed@caed.uscourts.gov for filing under seal. Only the parties' counsel of record, the Court and its staff shall have access to the unredacted document. A full-text copy of the District Court's August 13, 2018 Order is available at https://tinyurl.com/y8yukkfd from Leagle.com. Gerald Carlin, individually and on behalf of themselves and all others similarly situated, John Rahm, individually and on behalf of themselves and all others similarly situated & Paul Rozwadowski, individually and on behalf of themselves and all others similarly situated, Plaintiffs, represented by A. Chowning Poppler -- cpoppler@bermantabacco.com -- Berman Tabacco, Anthony David Phillips -- aphillips@bermandevalerio.com -- Berman DeValerio, Benjamin Doyle Brown -- bbrown@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg -- claufenberg@kellerrohrback.com -- Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger -- cheffelfinger@bermantabacco.com -- Berman Tabacco, George F. Farah -- gfarah@cohenmilstein.com -- Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris -- jfarris@kellerrohrback.com -- Keller Rohrback LLP, Justin N. Saif -- jsaif@berman tobacco.com -- Berman DeValerio, pro hac vice, Leslie M. Kroeger -- lkroeger@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt -- rmcdevitt@kellerohrback.com -- Keller Rohrback L.L.P., pro hac vice. Diana Wolfe, Plaintiff, represented by A. Chowning Poppler , Berman Tabacco, Anthony David Phillips , Berman DeValerio, Benjamin Doyle Brown , Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson , Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg , Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger , Berman Tabacco, George F. Farah , Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris , Keller Rohrback LLP, Justin N. Saif , Berman DeValerio, pro hac vice & Ryan McDevitt , Keller Rohrback L.L.P., pro hac vice. DairyAmerica, Inc., Defendant, represented by Charles Morton English -- joannemorton@dwt.com -- Davis Wright Tremaine LLP, pro hac vice, E. John Steren -- esteren@ebglaw.com -- Ober Kaler, pro hac vice, John D. Seiver -- johnseiver@dwt.com -- Davis Wright Tremaine LLP, pro hac vice, Joseph Michael Marchini -- jmarchini@bakermanock.com -- Baker, Manock & Jensen, Wendy M. Yoviene -- wyoviene@ober.com -- Ober Kaler, pro hac vice, Allison Ann Davis -- allisondavis@dwt.com -- Davis Wright Tremaine LLP, Joy G. Kim , Davis Wright Tremaine LLP & Sanjay Mohan Nangia , Davis Wright Tremaine LLP. DALLAS MORNING: Faces Class Action Over Illegal Call Campaign ------------------------------------------------------------- Eric J. Troutman, writing for TCPAland, reports that its not easy running a newspaper these days. Half the country will think you're fake news and the other half will wonder why you're even printing stuff on paper anymore (even the picture of the newspapers above makes me think of something old and dusty). And then there's those pesky class action lawsuits. In a new suit titled Fred Dembski v. The Dallas Morning News, Inc. Case No. 3:18-cv-02042-G (Filed Aug. 7, 2018) the Plaintiff sues in federal district court for the Northern District of Texas contending that the Dallas Morning News is making illegal telemarketing calls to landlines (what are those?) registered on the DNC. The suit can be found here: Dallas Morning News Complaint. The Plaintiff makes no secret of the paper's purported motive: Mr. Dembski alleges that the paper's circulation has crumbled recently resulting in the need for an aggressive telemarketing campaign to prop up its numbers: Dallas Morning News has seen a considerable drop in their newspaper subscription base as consumers are turning away from print media in favor of digital news media. Dembski Complaint at par. 2. The Complaint even provides this handy graph to prove the point: Colorful. The Complaint goes on to allege that the dropping circulation has lead to the telemarketing efforts that "regularly result in repeated calls to consumers whose phone numebrs are registered on the National Do Not Call Registry." The Plaintiff himself alleges that he received 7 unsolicited calls to his landline phone without his consent even though his number was on the DNC. Compl. par. 4. Plaintiff seeks to represent a class of: All persons in the United States who from four years prior to the filing of is action (1) Defendant (or an agent acting on behalf of Defendant) called more than one time on his/her cellular telephone; (2) within any 12-month period (3) where the cellular telephone number had been listed on the National Do Not Call Registry for at least thirty days; (4) for the purpose of selling Defendant's products and services; and (5) for whom Defendant claims (a) it obtained prior express written consent in the same manner as Defendant claims it supposedly obtained prior express written consent to call the Plaintiff, or (b) Defendant did not obtain prior express written consent. Compl. par. 21. It remains to be seen whether any of these allegations have merit. As the suit was just filed yesterday the Daily Morning News has no yet appeared through counsel. Notably, these DNC suits might be the new wave of TCPA litigation following recent court decisions suggesting that predictive dialers are no longer subject to the TCPA. (Purported DNC violations often do not require the use of an ATDS to trigger TCPA and/or Telemarketing Sales Rule s (TSR) coverage.) Plaintiff is represented by Stefan Coleman of the Law Offices of Stefan Coleman, P.A., Dana Opitz, and Avi R. Kaufman of Kaufman P.A. [GN] DELICIOUS HOSPITALITY: Martinez Suit Alleges ADA Violations ----------------------------------------------------------- A class action lawsuit has been filed against Delicious Hospitality, LLC, and Legacy Records NYC, LLC. The case is styled as Pedro Martinez, Individually and as the representative of a class of similarly situated persons v. Delicious Hospitality, LLC, and Legacy Records NYC, LLC, Case No. 1:18-cv-04848 (E.D.N.Y., August 27, 2018). The Plaintiff accuses the Defendants of violating the Americans with Disabilities Act. Delicious Hospitality, LLC, is a New York domestic limited liability company with businesses in New York City. The Defendants provide restaurant and bar services.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Telephone: (917) 373-9128 Facsimile: (718) 504-7555 E-mail: shakedlawgroup@gmail.com DIRECTV LLC: Flynn's Bid to Certify Landlords Class Denied ---------------------------------------------------------- In the lawsuit captioned JEAN M. FLYNN, et al., the Plaintiffs, v. DIRECTV, LLC, et al., the Defendants, Case No. 3:15-cv-01053-JAM (D. Conn.), the Hon. Judge Jeffrey Alker Meyer entered an order denying Plaintiffs' motion for class certification of: "all persons and/or entities ("Landlords") that own and lease residential multiple dwelling units ("MDU’s") in the State of Connecticut, upon which Defendants, by their agents, servants and/or employees have, on at least one occasion during the applicable statutory period, without first receiving prior written Landlord authorization and/or permission, installed DIRECTV satellite dish model Ka/Ku, on the roof of said MDU." The Court said, "Accordingly, because of individualized issues of landlord consent, plaintiffs have not carried their burden to establish the predominance requirement. See e.g., Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 468–69 (6th Cir. 2017) (affirming district court's determination that predominance requirement not established for class certification of action under Telephone Consumer Protection Act involving alleged unsolicited faxes in light of individualized issue of consent to such faxes); Ung v. Universal Acceptance Corp., 319 F.R.D. 537, 539 (D. Minn. 2017) (predominance requirement not established for class certification of action under Telephone Consumer Protection Act involving alleged marketing calls in light of individualized issue of consent to such calls). My conclusion is reinforced by defendants' arguments that individualized proof will also be required as to the terms of specific lease agreements and the amount of damages incurred from property to property. See Doc. No. 97 at 29–35." DIVERSICARE HEALTHCARE: Continues to Defend Garland, TX Class Suit ------------------------------------------------------------------ Diversicare Healthcare Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the company and its subsidiary, Garland Nursing & Rehabilitation Center, continue to defend a purported class action suit filed in the Circuit Court of Garland County, Arkansas. In January 2009, a purported class action complaint was filed in the Circuit Court of Garland County, Arkansas against the Company and certain of its subsidiaries and Garland Nursing & Rehabilitation Center (the "Center"). The Company answered the original complaint in 2009, and there was no other activity in the case until May 2017. At that time, plaintiff filed an amended complaint asserting new causes of action. The amended complaint alleges that the defendants breached their statutory and contractual obligations to the patients of the Center over a multi-year period by failing to meet minimum staffing requirements, failing to otherwise adequately staff the Center and failing to provide a clean and safe living environment in the Center. The Company has filed an answer to the amended complaint denying plaintiffs' allegations and has asked the Court to dismiss the new causes of action asserted in the amended complaint because the Company was prejudiced by plaintiff's long delay in filing the amended complaint. The Court has not yet ruled on the motion to dismiss, so the lawsuit remains in its early stages and has not yet be certified by the court as a class action. The Company intends to defend the lawsuit vigorously. No further updates were provided in the Company's SEC report. Diversicare Healthcare Services, Inc. provides post-acute care services to skilled nursing center, patients, and residents primarily in the Southeast, Midwest, and Southwest United States. Diversicare Healthcare Services, Inc. was founded in 1994 and is based in Brentwood, Tennessee. DUCK WALK: Violates Disabilities Act, Martinez Suit Alleges ----------------------------------------------------------- A class action lawsuit has been filed against Duck Walk Vineyards, Inc. The case is styled as Pedro Martinez, Individually and as the representative of a class of similarly situated persons v. Duck Walk Vineyards, Inc., Case No. 1:18-cv-04847 (E.D.N.Y., August 27, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Duck Walk Vineyards is a family owned winery & vineyard in Long Island, New York. The Plaintiff appears pro se.[BN] DUKE UNIVERSITY: Lucas Files ERISA Class Suit in N.C. ----------------------------------------------------- Kathi Lucas, Jorge Lopez and Keith A. Feather, individually and as representatives of a class of participants and beneficiaries on behalf of the Duke Faculty and Staff Retirement Plan, Plaintiffs, v. Duke University, Defendant, Case No. 18-cv-00094 (M.D. N.C., August 20, 2018), seeks damages resulting from breach of fiduciary duties under the Employee Retirement Income Security Act. Duke Faculty and Staff Retirement Plan is a defined contribution, individual account, employee pension benefit plan for faculty and staff members of Duke University eligible to participate. Duke engaged four bookkeepers for the Plan and allowed each of those providers to put their own proprietary investment funds in mutual funds and insurance company variable annuity. Said Plan's investment options were providing revenue sharing that overpaid for the Plan's recordkeeping services. Instead of recovering excess revenue sharing for the Plan, Duke arranged to pay Plan expenses and to reimburse Duke for its own expenses putatively in administering the Plan, including paying salaries and fringe benefits of employees in Duke's Human Resources department and other expenses Duke previously had been paying itself, notes the complaint. [BN] Plaintiff is represented by: David B. Puryear, Jr., Esq. PURYEAR AND LINGLE, PLLC 5501-E Adams Farm Lane Greensboro, NC 27407 Tel: (336) 218-0227 Email: puryear@puryearandlingle.com - and - Jerome J. Schlichter, Esq. Michael A. Wolff, Esq. Kurt C. Struckhoff, Esq. SCHLICHTER BOGARD & DENTON LLP 100 South Fourth Street, Ste. 1200 St. Louis, MO 63102 Phone: (314) 621-6115 Fax: (314) 621-5934 Email: jschlichter@uselaws.com mwolff@uselaws.com kstruckhoff@uselaws.com ELDERS VENTURES: Lore Labor Suit Seeks Unpaid OT Wages ------------------------------------------------------ Steven Lore, individually and on behalf of all others similarly situated, Plaintiff, v. Elders Ventures LLC, Massage Envy Franchising LLC, Christopher Elders and Jaqueline Elders, Defendants, Case No. 18-CV-004692, (E.D. N.Y., August 20, 2018), seeks to recover damages for egregious violations of New York State labor laws and the Fair Labor Standards Act. The Plaintiff further seeks compensatory and liquidated damages, interest, attorneys' fees, costs and all other legal and equitable remedies. Defendants operate as "Massage Envy," a massage parlor located at 680 Stewart Avenue, Garden City, New York 11350 where Lore worked as a massage therapist. According to the complaint, the Defendants owe the Plaintiff unpaid wages for the additional half hour of massage therapy services for each 1.5 hour massage, for which he was not compensated. Moreover, the Defendants willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment and failed to keep payroll records. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@Gmail.com ENTERTAINMENT CRUISES: Violates Disabilities Act, Diaz Suit Says ---------------------------------------------------------------- A class action lawsuit has been filed against Entertainment Cruises Inc. The case is titled as Edwin Diaz, on behalf of himself and all others similarly situated v. Entertainment Cruises Inc., Case No. 1:18-cv-07817 (S.D.N.Y., August 27, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Entertainment Cruises, Inc., operates dining and sightseeing cruises in Baltimore, Boston, Chicago, New Jersey, New York, Norfolk, Philadelphia, South Florida, and Washington D.C. The Company operates day and evening cruises, excursions and private charters, all-glass ships, skyline tours, private yachts, yacht charters, and speedboat excursions; offers wedding and group packages; and provides cruise packages for events ranging from business meetings to holiday parties. The Company was founded in 2006 and is based in Chicago, Illinois.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal EQUIFAX INFORMATION: Faces Parker FCRA Suit in Florida ------------------------------------------------------ A class action lawsuit has been filed against Equifax Information Services, LLC, and John Does 1-25. The case is titled as Lisa Parker, individually and on behalf of all others similarly situated v. Equifax Information Services, LLC, and John Does 1-25, Case No. 0:18-cv-62022-FAM (S.D. Fla., August 27, 2018). The Plaintiff filed the case under the Fair Credit Reporting Act. Equifax Information Services LLC collects and reports consumer information to financial institutions. The Company was formerly known as Equifax Credit Information Services Inc. and changed its name to Equifax Information Services LLC in June 2004. The Company was incorporated in 1937 and is based in Atlanta, Georgia. Equifax operates as a subsidiary of Equifax Inc.[BN] The Plaintiff is represented by: Justin E. Zeig, Esq. ZEIG LAW FIRM, LLC 3595 Sheridan Street, Suite 103 Hollywood, FL 33021 Telephone: (754) 217-3084 E-mail: justin@zeiglawfirm.com EVENKO: Disappointed Music Fan Pursues Class Action --------------------------------------------------- Matthew Lapierre, writing for Montreal Gazette, reports that a disappointed music fan is pursuing a class action lawsuit against the organizer of Montreal's Osheaga music festival because the performer she came to see was almost an hour and a half late. Megan Le Stum is a university student and avid fan of rapper Travis Scott. She bought a three-day pass to Osheaga expecting to see the mega-star perform, but Scott was late. Many people, including Le Stum, left the festival before he finally performed. The class action request, filed at the Montreal courthouse on Aug. 6, argues that Le Stum and anyone else who bought a ticket to Osheaga for Aug. 3, the day Scott performed, should be reimbursed by event organizer Evenko. Scott is a world-famous rapper. His songs frequently top the charts on music-streaming apps like Spotify. He was scheduled to headline the Montreal festival on Friday, Aug. 3. Scott was scheduled to play from 9:45 p.m. to 10:55 p.m., but the festival announced on social media that he was delayed at the border. The announcement drew anger from fans online, some of whom stood for hours waiting for the rapper to arrive. Many demanded refunds. "My feet hurt," one festival-goer tweeted. "I want my money back, he's going to play like two songs," tweeted another. Several people said that after waiting for hours they gave up and left. According to the class action request, the crowd grew impatient and aggressive. Le Stum grew tired of waiting and left at 10:30 p.m. Scott arrived just after 11 p.m and performed a short, 40-minute set. The class action request says Le Stum works part-time, had to save up money to buy her three-day pass to Osheaga and wouldn't have bought tickets to the music festival if Scott was not performing. She and her friends were extremely disappointed that they didn't get to see him take the stage. "The crowd was euphoric to see the rapper for the last show of the day, however the spectacle didn't start on time" the class action request reads. It argues that Evenko had a responsibility to respect the schedule of the event. The 2018 edition of Osheaga drew sellout crowds of 45,000 people for each of its three days. Day passes to the event ranged in price from $115 to $235. Three-day passes ranged from $320 to $1,150. If the class action lawsuit is approved by a Quebec Superior Court judge, it will likely take years to wind its way through the courts. Evenko did not respond to a request for comment. [GN] F5 PRODUCTIONS: Biennescar Action to Recover Unpaid OT Wages ------------------------------------------------------------ Dimitri Biennescar, Randy Saget and all others similarly situated, Plaintiffs, v. F5 Productions Inc., Defendant, Case No. 18-cv-81126, (S.D. Fla., August 22, 2018), seeks to recover unpaid overtime compensation, liquidated damages, costs and attorneys' fees under the provisions of the Fair Labor Standards Act. F5 Productions does business as McKenna's Place, a restaurant located at 4068 Forest Hills Boulevard, Palm Springs, Florida where Biennescar and Saget were employed as dishwasher and cook, respectively, working customarily in excess of forty hours per week without overtime. [BN] Plaintiff is represented by: Neil D. Kodsi, Esq. THE LAW OFFICES OF NEIL D. KODSI 1666 J.F. Kennedy Causeway, Suite 420 North Bay Village, FL 33141 Telephone: (786) 464-0841 Facsimile: (954) 790-6722 Email: nkodsi@ndkodsilaw.com - and - Michael S. Elstein, Esq. ELSTEIN LAW FIRM 8401 Lake Worth Road, Suite 107 Wellington, FL 33467 Telephone: (954) 928-0990 Facsimile: (954) 491-4555 Email: michael@elsteinlaw.com FACEBOOK INC: Data Privacy Class Action Lawsuits Consolidated ------------------------------------------------------------- Many consumers are concerned by the handling of their data by Facebook, Inc. (FB). Now there's a way for their voices to be heard. On July 27, 2018, Judge Vince Chhabria appointed Lesley E. Weaver of Bleichmar Fonti & Auld LLP and Derek W. Loeser of Keller Rohrback L.L.P. as Co-Lead Counsel to prosecute claims against Facebook, Inc. in one of the largest and most publicized data privacy lawsuits to date. The litigation concerns a new, digital version of an invasion of privacy made worse by the ability of companies to obtain individuals' personally identifiable information and use it to manipulate them. The lawsuit alleges that Facebook disregarded its users' privacy by exploiting their personally identifiable information. The alleged misuse includes, among other things, the misuse of Facebook users' photographs, names, locations, and biographical information as well as intimate details about users' religious and political beliefs, moods, race, gender, familial status, locations, and shopping habits. Facebook's alleged exploitation of its users' information came to the public's attention in the wake of the Cambridge Analytica scandal. Cambridge Analytica worked with a third-party app called "This Is Your Digital Life" to obtain over 87 million Facebook users' personally identifiable information and went on to use that data to create detailed profiles or dossiers of Facebook users. Evidence suggests that Facebook gave many other third-party app developers access to users' personal information without obtaining users' consent and in violation of state and federal laws. Ardua Harris, Esq. Keller Rohrback L.L.P. Telephone: 888-684-6575 Email: aharris@kellerrohrback.com or Kasey Sullivan, Esq. Bleichmar Fonti & Auld LLP Telephone: 415-445-4014 Email: ksullivan@bfalaw.com [GN] FACEBOOK INC: Faces Class Action Over Users' Private Data-Sharing ----------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that two class action lawsuits filed on Aug. 30 seek billions of dollars in damages from Facebook for sharing users' private data with device makers, adding to the woes of the social media behemoth already rocked by scandal and a recently plunging stock price. One of the lawsuits, filed by lead plaintiff Velma Rankins of Oakland, California, claims that Facebook created a "secret back door" to share millions of users' private data with more than 60 device makers, including Apple, Samsung, and Amazon, starting in 2007. "These data-sharing partnerships have enabled device makers to obtain substantial sensitive and personal information, directly from a user as well as from his or her friends," the 25-page complaint states. According to the lawsuit, Facebook concealed its sharing of personal data with device makers until April 2018 when it updated its data policy, a few weeks before the New York Times published an investigative piece revealing the practice. Ms. Rankins claims the data-sharing arrangements violate the terms of a 2011 consent decree Facebook signed with the Federal Trade Commission -- effective for 20 years -- that requires Facebook to disclose all categories of user data shared with third parties and the types of third parties receiving that data. Facebook did not immediately return a request for comment on Aug. 30, but in a June 3 response to the New York Times piece, the company said data was shared solely to enable device makers to "recreate the Facebook experience" for users. Each device maker, or "partner," signed contracts forbidding the use of Facebook data for any other purpose, according to the company's statement on its website. Facebook announced in April that it was "winding down" its data-sharing partnerships with device makers. As of June 3, 2018, the company said it had ended 22 such partnerships. But according to Ms. Rankins, that doesn't let Facebook off the hook for concealing the data-sharing agreements for more than a decade. The lawsuit cites violations of the Stored Communications Act, California privacy rights and business laws, intrusion upon seclusion, trespass to personal property, and nuisance. Ms. Rankins seeks a permanent injunction barring Facebook from sharing such data, class certification, disgorgement, punitive damages, and statutory damages of $1,000 for each violation of the Stored Communications Act. With a proposed class of millions of Facebook users, the social media network could be liable for billions of dollars in damages. Ms. Rankins is represented by Sabita Soneji of Tycko & Zavareei in Oakland. A second, similar class action was also filed against Facebook on Aug. 30 by lead plaintiff Susan Hwang, a California resident represented by attorney Clayeo Arnold of Sacramento. The lawsuits comes after a major scandal rocked Facebook earlier this year for sharing 87 million users' private data with a data-mining firm affiliated with Donald Trump's presidential campaign. Facebook CEO Mark Zuckerberg testified before Congress amidst a series of privacy class actions related to the scandal. A separate flood of litigation accused the company of collecting Android phone users' contacts, call histories and text message data without consent. In July, Facebook's market value dropped $119 billion in one day -- one of the biggest one-day losses by any company in U.S. stock market history -- after Facebook announced that its user base and revenue grew more slowly than expected in its second quarter. Facebook remains the world's largest online social network with 1.47 billion daily active users and more than 2 billion monthly active users as of June 30, 2018. The company has a total market value close to $511 billion, which exceeds the annual gross domestic product of countries like Poland, Belgium and Iran, according to the Associated Press. FARMLAND MUTUAL: Court Dismisses S. Mejia's Class Action Claims --------------------------------------------------------------- The United States District Court for the Eastern District of California dismissed the Class Action Claims With Prejudice in the case captioned SCARLETTE MEJIA, as an individual and on behalf of all others similarly situated, Plaintiffs, v. FARMLAND MUTUAL INSURANCE COMPANY, an Iowa corporation; FARMLAND MUTUAL INSURANCE CO, an unincorporated association; NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio corporation; and DOES 1 to 100, inclusive, Defendants, Case No. 2:17-CV-00570-TLN-KJN (E.D. Cal.). This Stipulation and Proposed Order is entered into between Plaintiff SCARLETTE MEJIA (Plaintiff) and Defendants FARMLAND MUTUAL INSURANCE COMPANY, FARMLAND MUTUAL INSURANCE CO, and NATIONWIDE MUTUAL INSURANCE COMPANY (Defendants). The parties agreed that the PAGA claims alleged in the Plaintiff's First Amended Complaint be dismissed without prejudice; that the claims of any putative class member, class claims, and/or class allegations will be dismissed without prejudice; that the Plaintiff's individual claims will be dismissed with prejudice; and all parties shall bear their own attorney's fees and costs. A full-text copy of the District Court's August 13, 2018 Order is available at https://tinyurl.com/ybg767j9 from Leagle.com. Scarlette Mejia, Plaintiff, represented by Galen T. Shimoda -- attorney@shimodalaw.com -- Shimoda Law Corp. & Justin Paul Rodriguez -- jrodriguez@shimodalaw.com -- Shimoda Law Corp. Farmland Mutual Insurance Company & Nationwide Mutual Insurance Company, Defendants, represented by Barbara Allyn Blackburn -- bblackburn@littler.com -- Littler Mendelson & Britney Noelle Torres -- btorres@littler.com -- Littler Mendelson, P.C.. FLEX LTD: Court Extends Time to Respond in California Class Suit ---------------------------------------------------------------- Flex Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the court has extended the time for defendants to respond to the putative class action complaint pending in the Northern District of California, until after a lead plaintiff is appointed and an amended complaint is filed by the lead plaintiff. On May 8, 2018, a putative class action was filed in the Northern District of California against the Company and certain officers alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, promulgated thereunder, alleging misstatements and/or omissions in certain of the Company's financial results, press releases and SEC filings made during the putative class period of January 26, 2017 through April 26, 2018. The deadline for applications for appointment as lead plaintiff was July 9, 2018. There are two pending motions for appointment as lead plaintiff, which are scheduled to be heard by the Court on October 11, 2018. The Court has extended the time for Defendants to respond to the complaint until after a lead plaintiff is appointed and an amended complaint is filed by the lead plaintiff. Flex Ltd. provides design, engineering, manufacturing, and supply chain services and solutions to original equipment manufacturers worldwide. It operates through Communications & Enterprise Compute, Consumer Technologies Group, Industrial and Emerging Industries, and High Reliability Solutions segments. Flex Ltd. was founded in 1990 and is based in Singapore. FLINT, MI: Wurfel Appeals Ruling in Waid Suit to 6th Cir. --------------------------------------------------------- Defendant Bradley Wurfel filed an appeal from a court ruling in the lawsuit entitled Luke Waid, et al. v. Rick Snyder, et al., Case No. 5:16-cv-10444, in the U.S. District Court for the Eastern District of Michigan at Ann Arbor. The appellate case is captioned as Luke Waid, et al. v. Rick Snyder, et al., Case No. 18-1960, in the United States Court of Appeals for the Sixth Circuit. Bradley Wurfel is sued in his official capacity as Director of Communications for the Michigan Department of Environmental Quality. Richard Dale Snyder is sued in his official capacity as Governor of the state of Michigan. As previously reported in the Class Action Reporter, the lawsuit is one of the eight cases consolidated for all purposes, including trial, in the case captioned In re Flint Water Cases, Case No. 5:16-cv-10444-JEL-MKM (E.D. Mich.). The Plaintiffs seek recovery from the Defendants for alleged injuries, damages and losses suffered by the Plaintiffs as a result of exposure to the introduction of lead and other toxic substances from the Defendants' ownership, use, management, supervision, storage, maintenance, disposal and release of highly corrosive water from the Flint River into the drinking water of Flint, Michigan.[BN] The Plaintiffs-Appellees are represented by: Conrad J. Benedetto, Esq. THE LAW OFFICES OF CONRAD J. BENEDETTO 1615 South Broad Street Philadelphia, PA 19148 Telephone: (215) 389-1900 E-mail: cjbenedetto@benedettolaw.com - and - Esther Berezofsky, Esq. BEREZOFSKY LAW GROUP, LLC 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002 Telephone: (856) 667-0500 E-mail: eberezofsky@wcblegal.com - and - Jayson Edward Blake, Esq. Mark McAlpine, Esq. MCALPINE LAW OFFICE 3201 University Drive, Suite 100 Auburn Hills, MI 48326 Telephone: (248) 373-3700 E-mail: jeblake@mcalpinepc.com mlmcalpine@mcalpinepc.com - and - John McNeill Broaddus, Esq. WEITZ & LUXENBERG PC 220 Lake Drive E. Cherry Hill, NJ 08002 Telephone: (856) 755-1115 E-mail: jbroaddus@weitzlux.com - and - Paul Francis Novak, Esq. Gregory Stamatopoulos, Esq. WEITZ & LUXENBERG PC 719 Griswold, Suite 620 Detroit, MI 48226 Telephone: (313) 800-4166 E-mail: pnovak@weitzlux.com gstamatopoulos@weitzlux.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com - and - Jordan W. Connors, Esq. SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101 Telephone: (206) 516-3814 E-mail: jconnors@susmangodfrey.com - and - Deborah A. LaBelle, Esq. LAW OFFICES OF DEBORAH A. LABELLE 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000 Telephone: (734) 996-5620 - and - Emmy L. Levens, Esq. COHEN MILSTEIN SELLERS AND TOLL PLLC 1100 New York Avenue, N.W., Suite 500-W Washington, DC 20005 Telephone: (202) 408-4600 E-mail: elevens@cohenmilstein.com - and - David J. Shea, Esq. SHEA, AIELLO & DOXSIE 26200 American Drive, Third Floor Southfield, MI 48034 Telephone: (248) 354-0224 E-mail: david.shea@sadplaw.com - and - Hunter J. Shkolnik, Esq. NAPOLI SHKOLNIK PLLC 400 Broadhollow Road, Suite 305 Melville, NY 11747 Telephone: (212) 397-1000 E-mail: hunter@napolilaw.com - and - Jessica B. Weiner, Esq. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 231 W. Lafayette Boulevard Theodore Levin U.S. Courthouse, Room 611 Detroit, MI 48226 Telephone: (313) 226-0003 Defendant-Appellant BRADLEY WURFEL is represented by: Charles Edward Barbieri, Esq. FOSTER, SWIFT, COLLINS & SMITH PC 313 S. Washington Square Lansing, MI 48933 Telephone: (517) 371-8100 E-mail: cbarbieri@fosterswift.com - and - Jay M. Berger, Esq. CLARK HILL PLC 500 Woodward Avenue, Suite 3500 Detroit, MI 48226 Telephone: (313) 965-8300 E-mail: jberger@clarkhill.com - and - Jordan Seth Bolton, Esq. CLARK HILL PLC 151 S. Old Woodward Avenue, Suite 200 Birmingham, MI 48009 Telephone: (248) 642-9692 E-mail: jbolton@clarkhill.com - and - Christopher Bradley Clare, Esq. CLARK HILL PLC 1001 Pennsylvania Avenue, N.W., Suite 1300, S. Washington, DC 27713 Telephone: (202) 572-8671 E-mail: cclare@clarkhill.com FREEDOM CRUISES: Diaz Sues Over Disabilities Act Breach ------------------------------------------------------- A class action lawsuit has been filed against Freedom Cruises, LLC. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated v. Freedom Cruises, LLC, Case No. 1:18-cv-07821 (S.D.N.Y., August 27, 2018). The Plaintiff alleges violations of the Americans with Disabilities Act. Freedom Cruises, LLC, is a business entity registered in the state of New York under the legal form of domestic limited liability company.[BN] GATES CORP: Lundine Sues Over Unpaid Overtime --------------------------------------------- Peggy Lynn Lundine, on behalf of herself and others similarly situated, Plaintiff, v. Gates Corporation, Defendant, Case No. 18-cv-01235, (D. Kan., August 21, 2018), seeks damages and other relief relating to violations of the Fair Labor Standards Act and the Kansas Wage Payment Act for failing to pay overtime at one and one-half the regular rate of pay for all overtime hours worked within a workweek. The Defendant is a manufacturer of fluid power and power transmission solutions such as hydraulic hoses and belts and operates a manufacturing facility at 1450 Montana Road, Iola, Allen County, Kansas 66749, where Plaintiff worked the mandrel lube, warehouse, and assembly. He routinely worked in excess of forty hours per workweek without receiving proper overtime compensation for all overtime hours worked, says the complaint. [BN] Plaintiff is represented by: Brendan J. Donelon, Esq. 420 Nichols Road, Suite 200 Kansas City, MO 64112 Tel: (816) 221-7100 Fax: (816) 709-1044 Email: brendan@donelonpc.com - and - Daniel W. Craig, Esq. 6614 Clayton Rd., #320 St. Louis, MO 63117 Tel: (314) 297-8385 Fax: (816) 709-1044 Email: dan@donelonpc.com GENERAL CABLE: 6th Circuit Appeal Filed in Eley's ERISA Suit ------------------------------------------------------------ Plaintiff Lonnie E. Eley filed an appeal from a court ruling entered in his lawsuit titled Lonnie Eley v. General Cable Corporation, et al., Case No. 2:17-cv-00045, in the U.S. District Court for the Eastern District of Kentucky at Covington. As reported in the Class Action Reporter on August 21, 2018, the District Court granted the Defendant's Motion to Dismiss the case. Plaintiff Lonnie M. Eley, on behalf of a putative class of participants in the General Cable Savings and Investment Plan (Plan), brings this action under Sections 404, 405, 409 and 502 of the Employee Retirement Income Security Act of 1974, as amended, for the Defendants' alleged breaches of fiduciary duties. Count One of the Amended Class Action Complaint alleges breach of the duty of prudence; Count Two alleges breach of the duty of loyalty; and Count Three alleges breach of the duty to monitor. The Defendants have moved to dismiss the Amended Complaint, arguing that it fails to state a claim under applicable law. The appellate case is captioned as Lonnie Eley v. General Cable Corporation, et al., Case No. 18-5892, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiff-Appellant LONNIE E. ELEY, on behalf of the General Cable Savings and Investment Plan, himself, and a class consisting of similarly situated participants of the Plan, is represented by: Michael Klein, Esq. STULL, STULL & BRODY 6 E. 45th Street, Suite 500 New York, NY 10017-0000 Telephone: (212) 687-7230 E-mail: mklein@ssbny.com Defendants-Appellees GENERAL CABLE CORPORATION, THE RETIREMENT PLANS FINANCE COMMITTEE OF GENERAL CABLE CORPORATION, THE RETIREMENT PLANS ADMINISTRATIVE COMMITTEE OF GENERAL CORPORATION, ELIZABETH MLEKUSH, ROBERT J. SIVERD, DON KATCHMAN, THE BOARD OF DIRECTORS OF GENERAL CABLE CORPORATION, GREGORY B. KENNY, MICHAEL T. MCDONNELL, GREGORY E. LAWTON, CRAIG P. OMTVEDT, PATRICK M. PREVOST, ROBERT L. SMIALEK, JOHN E. WELSH, III, SALLIE B. BAILEY and EDWARD CHILDS HALL, III, are represented by: Brian T. Ortelere, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 E-mail: brian.ortelere@morganlewis.com GEO GROUP: Judge Certifies Wage Theft Class-Action -------------------------------------------------- Democracy Now reports that in a victory for immigrant rights organizers, a federal judge in Washington state has certified a class-action lawsuit alleging systematic wage theft at GEO Group's for-profit Northwest Detention Center. Detained immigrants are paid only $1 a day to work inside the facility. Judge Robert Bryan's ruling comes as GEO Group is facing increasing scrutiny over its role of profiting off detention and family separation. On Aug. 7, the human rights group Dream Defenders held a national day of action to protest the for-profit prison company, which is the Immigration and Customs Enforcement agency's largest contractor. At least 16 actions took place in more than a dozen cities, including in Boca Raton, Florida, where more than 100 people protested outside of the GEO Group's headquarters. [GN] GLENCORE PLC: Levi & Korsinsky Files Securities Class Action ------------------------------------------------------------ Levi & Korsinsky, LLP, disclosed that class action lawsuit has commenced on behalf of shareholders of Glencore plc. Shareholders interested in serving as lead plaintiff have until the deadlines listed to petition the court and further details about the cases can be found at the links provided. There is no cost or obligation to you. Glencore plc (OTCMKTS: GLNCY, GLCNF) Class Period: September 30, 2016 - July 2, 2018 Lead Plaintiff Deadline: September 7, 2018 Join the action: http://www.zlk.com/pslra-d/glencore?wire=3 Allegations: Glencore plc made materially false and/or misleading statements throughout the class period and/or failed to disclose that: (i) Glencore's conduct would subject it to heightened scrutiny by U.S. and foreign government bodies resulting in investigations into the company's compliance with money laundering and bribery laws, as well as the Foreign Corrupt Practices Act; and (ii) as a result, defendants' statements about Glencore's business, operations, and prospects were materially false and/or misleading and/or lacked a reasonable basis at all relevant times. On May 18, 2018, Bloomberg reported that the U.K.'s Serious Fraud Office was preparing to open a formal bribery investigation into Glencore. Then on July 3, 2018, Glencore disclosed that the U.S. Department of Justice issued its subsidiary a subpoena to produce documents and other records in connection with its compliance with U.S. money laundering statutes and the Foreign Corrupt Practices Act. To learn more about the GLNCY, GLCNF class action contact jlevi@levikorsinsky.com. You have until the lead plaintiff deadlines to request the court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 30 Broad Street - 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Website: www.zlk.com Email: jlevi@levikorsinsky.com [GN] GRANT & WEBER: Court Denies Dismissal of FDCPA Suit --------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, denied Defendant's Motion to Dismiss the case captioned CHRISTY McCURDY, Plaintiff, v. GRANT & WEBER, INC., Defendant, Case No. 17 C 7073 (N.D. Ill.). The Plaintiff filed this suit, alleging that Grant & Weber, Inc. (G&W) violated Section 1692e(16) of the Fair Debt Collection Practices Act (FDCPA) when it sent the letter to the plaintiff and stated that it is a Member of Experian. The Plaintiff contends that, by stating that it is a member of Experian, G&W made a materially false representation or implication that it operates or is employed by a consumer reporting agency. The Plaintiff argues that G&W's use of the phrase Member of Experian is a violation of Section 1692e(16) of the FDCPA, which prohibits the use of a debt collector from falsely representing or implying that a debt collector operates or is employed by a consumer reporting agency. The FDCPA broadly prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt. G&W moves to dismiss, arguing that the letter, when viewed in its entirety, does not violate the FDCPA because the word member does not falsely state or give the unsophisticated consumer the impression that G&W is owned or operated by Experian. G&W urges the Court to look at the letter as a whole, arguing that it is clear that the letter was sent from a debt collector, not Experian or part of Experian. While G&W does identify itself as a debt collector or collection agency several times in the letter, G&W also states that it is a Member of Experian. Nowhere in the letter does G&W clarify or explain what it means to be a Member of Experian. An unsophisticated consumer could reasonably believe that, by including the phrase Member of Experian in the letter, G&W falsely implied that G&W operates or is employed by a consumer reporting agency, namely Experian. At this stage of the proceedings, G&W has not shown that not even a significant fraction of the population would be misled by by the letter and the phrase Member of Experian. The Court finds that the plaintiff has plausibly alleged a violation of the FDCPA. A full-text copy of the District Court's August 13, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/y938jqes from Leagle.com. Christy McCurdy, on behalf of herself and other similarly situated, Plaintiff, represented by Andrew Finko , Andrew Finko P.C., Celetha Chatman -- cchatman@communitylawyersgroup.com -- Community Lawyers Group, Ltd. &Michael Jacob Wood -- mwood@communitylawyersgroup.com -- Community Lawyers Group, Ltd. Grant & Weber, Inc., Defendant, represented by David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP & Brandon S. Stein -- bstein@hinshawlaw.com -- Hinshaw & Culbertson LLP. GRAY TELEVISION: Clay Massey Suit Alleges Sherman Act Violation --------------------------------------------------------------- Clay, Massey & Associates, P.C., on behalf of itself and all others similarly situated v. Gray Television, Inc., Hearst Communications, Nextstar Media Group, Inc., Tegna Inc., Tribune Media Company, and Sinclair Broadcast Group, Inc., Case No. 1:18-cv-05197 (N.D. Ill., July 30, 2018), is brought against the Defendants for violation of Section 1 of the Sherman Act. The lawsuit arises from unlawful coordination between advertisement sales teams of independent local television station owners to artificially inflate prices of local TV advertisements. Plaintiff is a law firm located in Mobile, Alabama. During the Class Period, the Plaintiff purchased advertisement time directly from one or more of the Defendants or their co- conspirators and has suffered monetary loss as a result of the antitrust violations alleged herein. The Defendants operate broadcasting companies in the United States. The Plaintiff is represented by: Steven A. Kanner, Esq. Michael J. Freed, Esq. Robert J. Wozniak, Esq. FREED KANNER LONDON & MILLEN LLC 2201 Waukegan Road, Ste 130 Bannockburn, IL 60015 Tel: (224) 632-4500 E-mail: skanner@fklmlaw.com mfreed@fklmlaw.com rwozniak@fklmlaw.com - and - Hollis Salzman, Esq. Kellie C. Lerner, Esq. Nahid A. Shaikh, Esq. ROBINS KAPLAN LLP 399 Park Avenue, Suite 3600 New York, NY 10022 Tel: (212) 980-7400 E-mail: hsalzman@robinskaplan.com klerner@robinskaplan.com nshaikh@robinskaplan.com GUARANTY BANCORP: Parshall Hits Merger Deal, Seeks More Info ------------------------------------------------------------ Paul Parshall, individually and on behalf of all others similarly situated, Plaintiff, v. Guaranty Bancorp, Edward B. Cordes, John M. Eggemeyer, Keith R. Finger, Stephen D. Joyce, Gail H. Klapper, Stephen G. Mcconahey, Paul W. Taylor, W. Kirk Wycoff, Suzanne R. Brennan and Independent Bank Group, Inc., Defendants, Case No. 18-cv-02150 (D. Colo., August 22, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Guaranty Bancorp by Independent Bank Group, Inc., rescinding it in the event defendants consummate the merger, rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Under the merger, Guaranty stockholders will receive 0.45 shares of Independent common stock for each share of Guaranty common stock they own. The complaint asserts that merger documents omitted material information regarding CVB Financial and Community Bank's financial projections, as well as the valuation analyses performed by Keefe, Bruyette & Woods, Inc. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion, says the complaint. Guaranty is a financial services company that operates as the bank holding company for Guaranty Bank and Trust Company. It provides comprehensive financial solutions to consumers and small to medium-sized businesses, loans and depository services, wealth management solutions, including trust and investment management services through its subsidiary registered investment advisory firm. [BN] The Plaintiff is represented by: Karen Cody-Hopkins, Esq. CODY-HOPKINS LAW FIRM 4610 S. Ulster Street Denver, CO 80237 Tel: (303) 221-4666 Fax: (303) 221-4374 Email: karen@codyhopkinslaw.com - and - RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Tel: (302) 295-5310 - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Tel: (484) 324-6800 HARVARD UNIV: Judge Urged to Back Asian-American Students' Case --------------------------------------------------------------- Zack Huffman, writing for Courthouse News Service, reported that in a case set to be the nation's next big test on affirmative action, the Department of Justice urged a federal judge on Aug. 30 to side with Asian-American students accusing Harvard of discrimination. "Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans," the United States wrote in a 40-page statement of interest. "To the contrary, the record evidence demonstrates that Harvard's race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups -- including both white applicants and applicants from other racial minority groups." Harvard is seeking summary judgment in the suit by the group Students for Fair Admissions Inc., and the American Civil Liberties Union was quick this morning to criticize the Trump administration's input. "In its latest move to dismantle progress in racial equity, the Department of Justice has inserted itself into the Harvard University admissions lawsuit, challenging Harvard's consideration of race as part of a whole-person admissions process," the ALCU said in a statement. "This argument comes on the heels of the administration's decision to reverse the Obama-era guidance on affirmative action." Several other groups have filed their own briefs in support of Harvard since the release by the Department of Justice. The Asian American Legal Defense and Education Fund argued that the university's admissions policies actually benefit Asian-American applicants. Predicting that removing Harvard's policy would primarily benefit white students, the fund said that comparing admissions among all Asians as a monolithic group fails to consider diversity among Asians. While Harvard's challengers have cited an expert whose research purportedly shows a racial bias against Asian Americans in Harvard's admissions, this study has been labeled illegitimate in one brief by a group of 15 economics professors and statisticians, and another coalition of 531 social scientists and scholars on college. Students for Fair Admissions brought the underlying suit in 2014, saying that Harvard discriminates against prospective white and Asian students by allowing race to be one of several different factors in admission acceptance. The DOJ previous filed a notice of interest in the case on April 6, supporting a motion from SFFA to keep Harvard's admissions practices and records unsealed when they were submitted evidence. At the time, the department said that the information would be useful as part of the department's own investigation into Harvard's use of race in admissions practice, which began when Attorney General Jeff Sessions took over in 2017. "No American should be denied admission to school because of their race. As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements," Attorney General Sessions in a statement on Aug. 30. "The Department of Justice has the responsibility to protect the civil rights of the American people. This case is significant because the admissions policies at our colleges and universities are important and must be conducted lawfully." HCP INC: Bid to Dismiss Firefighters' Pension Fund Suit Pending --------------------------------------------------------------- HCP, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the parties in the case, Boynton Beach Firefighters' Pension Fund v. HCP, Inc., et al., are awaiting a court ruling on the motion to dismiss the complaint. On May 9, 2016, a purported stockholder of the Company filed a putative class action complaint, Boynton Beach Firefighters' Pension Fund v. HCP, Inc., et al., Case No. 3:16-cv-01106-JJH, in the U.S. District Court for the Northern District of Ohio against the Company, certain of its officers, HCR ManorCare, Inc. ("HCRMC"), and certain of its officers, asserting violations of the federal securities laws. The suit asserts claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and alleges that the Company made certain false or misleading statements relating to the value of and risks concerning its investment in HCRMC by allegedly failing to disclose that HCRMC had engaged in billing fraud, as alleged by the U.S. Department of Justice ("DoJ") in a suit against HCRMC arising from the False Claims Act that the DoJ voluntarily dismissed with prejudice. The plaintiff in the class action suit demands compensatory damages (in an unspecified amount), costs and expenses (including attorneys' fees and expert fees), and equitable, injunctive, or other relief as the Court deems just and proper. On November 28, 2017, the Court appointed Societe Generale Securities GmbH (SGSS Germany) and the City of Birmingham Retirement and Relief Systems (Birmingham) as Co-Lead Plaintiffs in the class action. The motion to dismiss was fully briefed on May 21, 2018. The Company believes the suit to be without merit and intends to vigorously defend against it. HCP, Inc. is a fully integrated real estate investment trust (REIT) that invests in real estate serving the healthcare industry in the United States. HCP owns a large-scale portfolio primarily diversified across life science, medical office and senior housing. HERBALIFE INT'L: Awaits Decision in "Circle of Success" Class Suit ------------------------------------------------------------------ Alex Pickett, writing for Courthouse News Service, reported that a federal judge in Miami may soon decide if a class action lawsuit against nutritional supplement giant Herbalife will continue to trial. U.S. District Judge Marcia Cooke in the Southern District of Florida was scheduled to preside over a hearing on Wednesday, Aug. 22, on two motions filed by the publicly traded company to change venue from Florida to California and force the plaintiffs into arbitration. Eight former distributors filed the complaint against Herbalife in September 2017, alleging the company duped them into attending "Circle of Success" events that cost thousands to attend. "Herbalife business opportunity participants are told that they must 'attend every event' if they want to be successful," the complaint states," and that they must 'qualify for special treatment at these events by making large monthly purchases of Herbalife's products." The complaint details former distributors' unsuccessful efforts to achieve financial success through the company. Jeff and Patricia Rodgers say they attended almost every event from 2011-2015 to no avail. "Yet religious adherence to the Circle of Success did not lead to financial success for Jeff and Patti Rodgers," the complaint states. "They didn't quit Herbalife; after years of fruitless toil, they simply ran out of money to lose." The couple claims to have lost more than $100,000. The plaintiffs also named dozens of the top distributors in the company as defendants. The plaintiffs claim hundreds of thousands of former distributors could join the class action and damages could top $1 billion. Herbalife has been beset by lawsuits for years by some who consider the multi-level marketing business model a pyramid scheme. In 2015, the company settled with some distributors for $15 million over allegations they could not sell their products for a profit and a restrictive return policy. A year later, Herbalife settled with the Federal Trade Commission for $200 million after an investigation into claims the company was essentially a pyramid scheme (though the FTC never actually used such language). The company agreed to several measures as part of the settlement including a promise to not misrepresent how much income distributors can make and extending the return policy for the initial membership shipment. But the Miami lawsuit contends the FTC's actions left in place the events, which it called the "most effective fraud in the arsenal of Herbalife." In pretrial motions filed with the court, Herbalife attorneys argued the former distributors signed contracts mandating arbitration of any disputes. One motion states the agreements "could hardly be broader." "They apply to all disputes or claims between Herbalife and the plaintiffs as well as disputes arising from or relating to plaintiffs' relationships with other distributors, such as the individual defendants," according to the motion. Herbalife, headquartered in Los Angeles, also maintains the lawsuit should be transferred to California. Herbalife has 4 million members, according to its website, with net sales of $4.4 billion in 2017. The company's communications department did not immediately respond to a request for comment. HGC CONSTRUCTION: Sullivan Sues Over ADA Violations --------------------------------------------------- A class action lawsuit has been filed against HGC Construction Co. The case is entitled Phillip Sullivan, Jr., on behalf of himself and all others similarly situated v. HGC Construction Co., Case No. 1:18-cv-07752 (S.D.N.Y., August 24, 2018). The Plaintiff alleges violations of the Americans with Disabilities Act. HGC Construction Co. operates as a construction company. The Company offers pre construction, construction management, designing, building, and historic preservation services. Hgc Construction serves commercial, health care, recreational, retail, and religious industries.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com HORNBLOWER YACHTS: Faces Diaz Sues Alleging ADA Violation --------------------------------------------------------- A class action lawsuit has been filed against Hornblower Yachts, Inc. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. Hornblower Yachts, Inc., Case No. 1:18-cv-07816 (S.D.N.Y., August 27, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Hornblower Yachts, Inc., doing business as Hornblower Cruises & Events, operates a dining cruise and yacht charter. The Company offers services for weddings, corporate outings, gala events, and family vacations in San Francisco, San Diego, Sacramento, Berkeley, New York, Marina del Rey, Newport Beach, Long Beach, and Corpus Christi. The Company also operates ferry concessioners business to Alcatraz Island, the Statue of Liberty, and Ellis Island. The Company was founded in 1980 and is based in San Francisco, California.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal HOUSTON, TX: 2 Women to Appeal Dismissal of Rape Kit Lawsuit ------------------------------------------------------------ The Associated Press reports that two women will appeal a federal judge's recent dismissal of their class-action lawsuit against Houston and the city's officials over delays in testing rape kits. The pair are among about 6,000 women and several hundred minors represented in the 2017 lawsuit who said they were harmed when the Houston Police Department failed to submit rape kits to a crime lab for years. A judge ruled the lawsuit was filed too late and didn't cite any civil rights violations to hold officials responsible. An attorney for the women, Randall Kallinen, tells the Houston Chronicle the women's legal claims aren't too late because they didn't know about issues with their rape kits until police told them. The city says private labs eliminated a rape kit backlog in 2013 and 2014. [GN] HUSKY ENERGY: Faces Class Action Over Asphalt Refinery Blast ------------------------------------------------------------ Joe Kelly, writing for Courthouse News Service, reported that a class claims in a federal lawsuit that the owners of a northern Wisconsin asphalt refinery did not take steps to prevent an explosion in April that forced locals to flee their homes and fear for their lives. The complaint -- filed on Aug. 20 in Madison, Wisconsin, federal court by lead attorney Patricia Bloodgood on behalf of three named residents -- claims Husky Energy and Superior Refining failed to exercise routine prudence and take proper maintenance measures leading up to the explosion in Superior, forcing the plaintiffs and their families to evacuate the area. They allege claims of negligence, nuisance, trespass and strict liability, and seek damages not limited to evacuation-related expenses, lost wages and interference with property rights. The April 26 incident involved a series of explosions and a massive asphalt fire that began around 10 a.m., according to the complaint. Debris that flew from the largest explosion, which went up to about 200 feet in the air, punctured an asphalt storage tank, spilling roughly 15,000 barrels of asphalt into the refinery and starting a massive fire. Six injured workers were taken to the hospital, while seven others were treated at the scene. Local hospitals claimed there were 16 patients in all treated for evacuation-related injuries. The evacuation zone spanned more than 70 square miles, affecting over 27,000 Superior-area residents, including the plaintiffs, the lawsuit states. They say they were forced to flee their homes and places of work with their families, having to buy food and other supplies on their way to safer accommodations. Superior Mayor Jim Paine lifted the evacuation order the following day. One Superior resident said the explosion "felt like a bomb," while a contractor at the Husky Superior Refinery quoted in the complaint said he was "emotional. I thought I was going to die." The U.S. Chemical Safety Board arrived on the scene the day of the explosion. On Aug. 2, after months of interviews with workers and residents, pouring over documents and analyzing evidence, the CSB issued a report finding that the cause of the explosion was equipment failure. The particular pieces of equipment that reportedly failed were slide valves in a fluid catalytic cracking unit that are designed to keep hydrocarbons from mixing with oxygen during the asphalt and gasoline refining process. Internal wear in at least one of these slide valves caused a pressure drop. For roughly 25 minutes, the complaint states, this created conditions that would allow the oxygen and the hydrocarbons to blend, resulting in a flammable mixture. The Husky Superior Refinery, built in 1950, is Wisconsin's only refinery of gasoline, asphalt and other petroleum products. It has allegedly been fined in the past for safety violations, including in 2008 when it paid a $179,000 fine to settle more than 30 federal safety violations. The refinery was owned by Murphy Oil at that time. The Alberta, Canada-based Husky Energy bought the refinery last November. In January 2015, another Husky Energy refinery exploded in Lima, Ohio, although no one had to be evacuated, according to the complaint. "Despite the January explosion at the Lima refinery, Husky Energy Inc. continued operations and another fire broke out at the Lima refinery just eight months later on September 20, 2015. Then, in January 2018, a large fireball erupted from the Lima refinery, terrifying residents who were still wary after the past two fires," the lawsuit states. According to Center for Public Integrity numbers cited in the complaint, up to 180,000 people living in the Superior region could have been injured or killed if a tank of hydrogen fluoride located at the refinery had been compromised during the explosion and subsequent blaze. The complaint says there continues to be environmental and safety concerns from the incident: The Environmental Protection Agency is still trying to recover any residual chemicals, including firefighting foam, from the local water supply; The U.S. Coast Guard had to use booms to try and prevent any petroleum or related contaminants from polluting the waters of nearby Lake Superior; Toxic chemical compounds from the plume contaminated soil for miles southeast of the refinery; And a University of Minnesota professor advised residents not to plant vegetable gardens in backyards near the refinery. The complaint says Husky Energy and Superior Refining have reimbursed some Superior residents for accommodations, food and transportation costs related to the incident, but many others have not been paid. The plaintiffs' attorney and representatives of Husky Energy could not be reached for comment on Aug. 21. IDERA PHARMA: Merger-Related Suits Voluntarily Dismissed -------------------------------------------------------- Idera Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that these cases have been voluntarily dismissed without prejudice: -- Cohen v. Idera Pharmaceuticals, Inc., et al., -- Klein v. BioCryst Pharmaceuticals, Inc., et al., and -- Lisa Raatz v. Idera Pharmaceuticals, Inc., et al. In January 2018, BioCryst Pharmaceuticals, Inc. (NASDAQ:BCRX), and Idera Pharmaceuticals, Inc. (NASDAQ:IDRA), announced that they have signed a definitive merger agreement to form a new enterprise focused on the development and commercialization of medicines to serve more patients suffering from rare diseases. In connection with a Merger Agreement, three putative class action complaints were filed challenging the proposed merger transaction. On March 6, 2018 plaintiff Melvin Klein filed a lawsuit captioned Klein v. BioCryst Pharmaceuticals, Inc., et al., No. 1:18-cv-00358, against BioCryst, along with the BioCryst board, Idera, Holdco, Island Merger Sub, Inc. and Boat Merger Sub, Inc. in United States District Court for the District of Delaware. On March 14, 2018, plaintiff Lisa Raatz filed a lawsuit captioned Raatz v. Idera Pharmaceuticals, Inc., et al., No. 1:18-cv-10485, against Idera, along with the members of the Idera board, BioCryst, Holdco, Island Merger Sub, Inc. and Boat Merger Sub, Inc. in United States District Court for the District of Massachusetts. On March 22, 2018 plaintiff Ricky Cohen filed a lawsuit captioned Cohen v. Idera Pharmaceuticals, Inc., et al., No. 1:18-cv-00428, against Idera, along with the members of the Idera board in United States District Court for the District of Delaware. All three lawsuits allege violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, and SEC Rule 14a-9, for alleged material misstatements or omissions in connection with the proposed merger transaction. The complaints included demands for, among other things, an injunction preventing defendants from closing the proposed merger transaction absent certain disclosures of information identified in the complaints. Following the termination of the Merger Agreement, on July 11, July 20, and July 26, 2018, respectively, the Cohen, Klein and Raatz complaints were voluntarily dismissed without prejudice. Idera Pharmaceuticals, Inc., a clinical-stage biopharmaceutical company, focuses on the discovery, development, and commercialization of oligonucleotide therapeutics for oncology and rare diseases in the United States. The company was founded in 1989 and is based in Cambridge, Massachusetts. IMPAC MORTGAGE: Judgment Order in "Timm" Suit Under Appeal ---------------------------------------------------------- Impac Mortgage Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company has taken an appeal from the Judgment Order in the case entitled, Timm, v. Impac Mortgage Holdings, Inc., and intends to seek a stay of the order requiring the Company to hold a special meeting for the election of two directors pending the outcome of appeals. On December 7, 2011, a purported class action was filed in the Circuit Court of Baltimore City, entitled Timm, v. Impac Mortgage Holdings, Inc., purportedly on behalf of holders of the Company's 9.375% Series B Cumulative Redeemable Preferred Stock (Preferred B) and 9.125% Series C Cumulative Redeemable Preferred Stock (Preferred C) who did not tender their stock in connection with the Company's 2009 completion of its Offer to Purchase and Consent Solicitation. The action sought the payment of certain quarterly dividends for the Preferred B and C holders, the unwinding of the consents, and reinstatement of all rights under the 2004 Preferred Stock Articles Supplementary, including the cumulative dividend on the Preferred B and C stock, and the election of two directors by the Preferred B and C holders. The action also sought punitive damages and legal expenses. On July 16, 2018, the Court entered a Judgement Order whereby it (1) declared and entered judgment in favor of all defendants on all claims related to the Preferred C holders and all claims against all individual defendants thereby affirming the validity of the 2009 amendments to the Series B Articles Supplementary; (2) declared its interpretation of the voting provision language in the Preferred B Articles Supplementary to mean that consent of two-thirds of the Preferred B stockholders was required to approve the 2009 amendments to the Preferred B Articles Supplementary, which consent was not obtained, thus rendering the amendments invalid and leaving the 2004 Preferred B Articles Supplementary in effect; (3) ordered the Company to hold a special election within sixty days for the Preferred B stockholders to elect two directors to the Board of Directors pursuant to the 2004 Preferred B Articles Supplementary (which Directors will remain on the Company's Board of Directors until such time as all accumulated dividends on the Preferred B have been paid or set aside for payment) and, (4) declared that the Company is required to pay three quarters of dividends on the Preferred B stock under the 2004 Articles Supplementary (approximately, $1.2 million, but did not order the Company to make any payment at this time). The Court declined to certify any class pending the outcome of appeals and certified its Judgment Order for immediate appeal. The Company has appealed the Judgment Order and intends to seek a stay of the order requiring the Company to hold a special meeting for the election of two directors pending the outcome of appeals. As a result of the Judgement Order, the following terms of Preferred B are also deemed to be reinstated: 1) unpaid cash dividends on the Series B at a rate of 9.375% per year will accrue and be cumulative on a quarterly basis, 2) dividends and distributions on, and the repurchase of stock ranking junior (such as the company's common stock) or on parity to the Preferred B are prohibited (except the dividends in the form of shares of stock) unless full cumulative dividends on the Preferred B stock have been paid or set aside for payment, 3) the Company may not redeem less than all of the outstanding Preferred B stock unless full cumulative dividends on the Preferred B stock are paid or set aside for payment, 4) the Company may not, without approval of at least two thirds of the Preferred B create or authorize any class or series of capital stock ranking senior to the Preferred B or amend provisions of the Company's charter so as to materially and adversely affect the terms of the Preferred B, subject to certain exceptions, and 5) upon any liquidation, dissolution or winding up of the Company, the Preferred B are entitled to be paid before any distribution of assets to the common stock or junior preferred stock. Impac Mortgage Holdings, Inc. operates as an independent residential mortgage lender in the United States. It operates through three segments: Mortgage Lending, Real Estate Services, and Long-Term Mortgage Portfolio. Impac Mortgage Holdings, Inc. was founded in 1995 and is headquartered in Irvine, California. IMPERVA INC: Court Certifies Settlement Class in "Poinsignon" Case ------------------------------------------------------------------ In the lawsuit styled JULIEN POINSIGNON, on behalf of himself, all others similarly situated, the Plaintiff, vs. IMPERVA, INC., a Delaware corporation; and DOES 1 through 100, inclusive, the Defendants, Case No. 3:17-cv-05653-EMC (N.D. Cal.), the Hon. Judge Edward M. Chen entered an order: 1. granting preliminary approval to parties settlement as it meets the criteria for preliminary settlement approval; 2. certifying a settlement class of: "all applicants for employment, employees or other agents of Defendant Imperva, Inc. in the United States who were subject to any background, credit, consumer, or investigatory check or report between August 25, 2012 and November 3, 2017"; 3. preliminarily approving a revised release language for dissemination to Class Members, for purposes of this Agreement, the "Released Claims" in the Lawsuit are defined as: "All claims, demands, rights, liabilities, and causes of action of every nature and description whatsoever, whether known or unknown, based on the facts or allegations asserted in the Complaint or First Amended Complaint or that relate to or arise out of the procurement by Defendant Imperva, Inc. or its agents of any credit, consumer, investigatory, or background report that were or could have been asserted in the Lawsuit, including but not limited to any and all claims under 15 U.S.C. sections 1681b(b)(2)(A), 1681d(a)(1), and 1681g(c) of the Fair Credit Reporting Act, any analogous state law claims, including but not limited to any and all claims under Cal. Civ. Code sections 1785 et seq. and 1786 et seq., and any and all claims under Cal. Bus. & Prof. Code sections 17200, et seq., or that relate to or arise out of the procurement by Defendant Imperva, Inc. or its agents of any credit, consumer, investigatory, or background report. The newly proposed language is highlighted and removed text is shown in strikethrough font."; 4. directing Plaintiff to file a motion for final approval of the settlement, and directing Class Counsel to file a motion for an award of attorneys' fees, costs, and the enhancement award; 5. appointing Simpluris, Inc. to act as the Settlement Administrator; 6. appointing Julien Poinsignon as Class Representativem appointing Setareh Law Group, Shaun Setareh and H. Scott Leviant as Class Counsel; 7. directing Defendant to provide Settlement Administrator not later than 30 days after the date of this order the name, most recent known mailing address, and any other information required in accordance with the Agreement; 8. directing Settlement Administrator to mail the approved Class Notice by first class mail to the Class Members in accordance with the Agreement; and 9. scheduling final approval hearing on February 7, 2019, at 1:30 p.m., to determine whether the settlement should be granted final approval as fair, reasonable, and adequate as to the Class Members. JC WASHINGTON: Bavaro et al. Seek to Certify Class of Drivers ------------------------------------------------------------- In the lawsuit entitled Julia Bavaro, et al., the Plaintiffs, v. JC Washington Inc.; et al., the Defendants, Case No. 2:18-cv-00982-RCM (W.D. Pa.), the Plaintiffs ask the Court for an order authorizing notice of this action to be sent to these individuals: "all similarly situated current and former delivery drivers employed at the Domino's stores owned, operated, and controlled by Defendants, during the three years prior to the filing of this Class Action and the date of final judgment in this matter who elect to opt-in to the action." Counsel for Plaintiffs and the putative class: Gregory G. Paul, Esq. MORGAN PAUL 100 First Avenue, Suite 1010 Pittsburgh, PA 15222 Telephone: (412) 259-8375 Facsimile: (888) 822 9421 E-mail: gregpaul@morgan-paul.com - and - Andrew Biller, Esq. MARKOVITS, STOCK & DEMARCO, LLC www.msdlegal.com 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Telephone: (513) 651 3700 Facsimile: (513) 665 0219 E-mail: abiller@msdlegal.com akimble@msdlegal.com JERSEY STRONG: Sullivan Files ADA Suit in S.D.N.Y. -------------------------------------------------- A class action lawsuit has been filed against Jersey Strong Licensing LLC. The case is captioned as Phillip Sullivan, Jr., on behalf of himself and all others similarly situated v. Jersey Strong Licensing LLC, Case No. 1:18-cv-07753 (S.D.N.Y., August 24, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. Jersey Strong Licensing LLC is a domestic limited liability company in New Jersey.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com KANYE WEST: Class Action Lawsuit From Disgruntled Fan Over Tweet ---------------------------------------------------------------- Peter A. Berry, writing for XXL Mag, reports that two years ago Kanye West tweeted that his The Life of Pablo album would only be available on Tidal, a streaming platform he helped launch with Jay-Z the year prior. Now, he could be facing some bizarre legal consequences as a disgruntled fan who purchased Tidal to access the album is pursuing a class action lawsuit. "My album [The Life of Pablo] will never never, never be on Apple," Yeezy wrote at the time. "And it will never be for sale....You can only get it on Tidal." Whether it was directly caused by 'Ye's tweet or not, Tidal's membership proceeded to grow from 1,000,000 to 3,000,000 in the months that followed. One of those new Tidal subscribers was a fan by the name of Justin Baker-Rhett, who was apparently displeased when he found that Yeezy's seventh LP ended up on all major streaming platforms. Rhett was so displeased, in fact, that he ended up filing a lawsuit against Kanye and Aspiro, which is the brand that owns Tidal. For his part, 'Ye and his legal team mounted their defense against Rhett's lawsuit last summer, claiming that because Yeezy had altered his album after its release, the original version of the album had only existed on the streaming platform. According to The Hollywood Reporter, a judge allowed Rhett to move forward with his fraudulent inducement case, and now the disgruntled fan is also pursuing a class action lawsuit against Kanye and Aspiro. Rhett's attorneys say that his case falls directly in line with grounds for class action, which are defined as creating situations in which a group of people afflicted by the same "injury" brought on by a "product" or "action" can collectively sue a defendant. In this case, Kanye and Aspiro are the defendants and the people who purchased a Tidal membership because they believed that to be the only way to listen to the The Life of Pablo are the group experiencing the "injury." "All persons in the United States who both (1) subscribed to the Tidal streaming service between February 15, 2016 and April 1, 2016, and (2) streamed any track from The Life of Pablo within the first 24 hours after initiating his or her subscription," reads part of Rhett's claim, which attempts to set some measurable parameters for determining who subscribed to Tidal as a result of Yeezy's tweet. Though this could be a viable a case, docs obtained by THR spotlight the key questions that will determine whether or not a this Rhett's lawsuit gets a class action certification. Kanye has yet to comment on the matter. [GN] KAPSTONE PAPER: Faces Class Action Over WestRock Merger Deal ------------------------------------------------------------ Robert Kahn, writing for Courthouse News Service, reported that shareholders say in a federal class action that directors are selling KapStone Paper and Packaging too cheaply through an unfair process to WestRock Co./Whiskey Holdco, for $35 a share, or 0.4981 shares of Holdco, in a $4.9 billion deal. KAPSTONE PAPER: Pill Files Suit Over WestRock Merger Deal --------------------------------------------------------- David Pill, individually and on behalf of all others similarly situated, Plaintiff, v. Kapstone Paper And Packaging Corporation, Roger W. Stone, Matthew Kaplan, Robert J. Bahash, John M. Chapman, Paula H. J. Cholmondeley, Jonathan R. Furer, David G. Gabriel, Brian R. Gamache, Matthew H. Paull, Maurice S. Reznik and David P. Storch, Defendants, Case No. 18-cv-01290, (D. Del., August 22, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of KapStone Paper and Packaging Corporation by WestRock Company through its wholly owned subsidiary, Whiskey Holdco, Inc., rescinding it in the event defendants consummate the merger, rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. WestRock will acquire all of the outstanding shares of KapStone for $35.00 per share and will assume approximately $1.36 billion in net debt, for a total enterprise value of approximately $4.9 billion. The complaint says merger documents omitted material information regarding CVB Financial and Community Bank's financial projections, as well as the valuation analyses performed by Rothschild & Co. and Moelis and Company LLC. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion, it adds. KapStone produces containerboard, corrugated products and specialty paper. [BN] The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel: (302) 295-531 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com gms@rl-legal.com - and - Carl L. Stine, Esq. Fei-Lu Qian, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Tel: (212) 759-4600 Fax: (212) 486-2093 Email: cstine@wolfpopper.com fqian@wolfpopper.com KNORR-BREMSE AG: Employee's Anti-trust Row Transferred to W.D. Pa. ------------------------------------------------------------------ The case captioned Janis McNeal, individually and on behalf of all others similarly situated, Plaintiffs, vs. Knorr-Bremse AG, Knorr Brake Company LLC, New York Air Brake LLC, Bendix Commercial Vehicle Systems LLC, Westinghouse Air Brake Technologies Corporation, Faiveley Transport North America Inc., Railroad Controls L.P., Richard Bowie and Does 1-20, Defendant, Case No. 18-cv-01667 (D. Md., June 6, 2018), was transferred to the U.S. District Court for the Western District of Pennsylvania on August 20, 2018, under Case No. 18-cv-01087. Plaintiffs seeks to recover damages and obtain injunctive relief for injuries caused under Section 1 of the Sherman Act. Defendants and their related subsidiaries are rail equipment used in freight and passenger rail applications suppliers who are alleged of restraining competition in the labor markets in which they compete for employees. Defendants are each other's top competitors for rail equipment, including for skilled employees. However, rather than compete to attract the best employees by offering more attractive salary and benefits packages to prospective job seekers, they instead conspired to enter into a series of agreements intended to circumvent competition for employees and suppress wages and job opportunities, thus suppressing compensation and potential new job opportunities and restraining competition in the market for their employees' services, notes the complaint. Janis McNeal worked for Defendant Knorr Brake from April 2014 to October 2016 and held the position of Document Control Coordinator.[BN] Plaintiff is represented by: Alicia Leigh Shelton, Esq. Cyril Vincent Smith, III, Esq. ZUCKERMAN SPAEDER LLP 100 E Pratt St Ste 2400 Baltimore, MD 21202 Tel: (410) 332-0444 Fax: (410) 659-0436 Email: ashelton@zuckerman.com csmith@zuckerman.com - and - Joseph H. Meltzer, Esq. Kimberly Justice, Esq. Zachary Arbitman, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Tel: (610) 667-7706 Fax: (610) 667-7056 Email: jmeltzer@ktmc.com kjustice@ktmc.com zarbitman@ktmc.com Defendants are represented by: Steven Michael Chasin, Esq. BAKER AND MCKENZIE LLP 815 Connecticut Ave NW Washington, DC 20006 Tel: (202) 452-7000 Fax: (202) 452-7074 Email: steven.chasin@bakermckenzie.com KNORR-BREMSE: Fricia Suit over No-Poach Deal Moved to Pennsylvania ------------------------------------------------------------------ The class action lawsuit titled KNORR-BREMSE AG; KNORR BRAKE COMPANY LLC; NEW YORK AIR BRAKE LLC; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION; FAIVELEY TRANSPORT S.A.; FAIVELEY TRANSPORT NORTH AMERICA INC.; and DOES 1-20, Defendants, Case No. 1:18-cv-01674, was transferred from the U.S. District Court for the District of Maryland to the U.S. District Court for the Western District of Pennsylvania (Pittsburgh) on Aug. 16, 2018. The Western District of Pennsylvania Court Clerk assigned Case No. 2:18-cv-01093-JFC to the proceeding. The Case is assigned to the Hon. Judge Joy Flowers Conti. According to the complaint, without the knowledge or consent of their employees, Defendants and senior executives at these companies entered into express agreements to eliminate or reduce competition among them for skilled labor. This conspiracy consists of at least three agreements -- between Wabtec and Knorr Brake, between Knorr Brake and Faiveley North America, and between Wabtec and Faiveley North America -- that each company would not hire or attempt to hire employees from the other company without prior consent from that company. The intended and actual effect of this Conspiracy is to suppress employee compensation, and to impose unlawful restrictions on employee mobility. During the relevant period, Knorr, Wabtec, and Faiveley were the three largest rail equipment suppliers in the world and often each other's direct competitors. Their employees possessed skills that were particularly valuable to each other, and so their no-poach agreements were an effective means of reducing competition for employees and suppressing employee pay below competitive levels. The Defendants' Conspiracy restrained trade and is per se unlawful under federal law. The Plaintiff seeks injunctive relief and damages for violations of Section 1 of the Sherman Act. Attorneys for SONNY FRICIA, individually and on behalf of all others similarly situated: Benjamin Howard Carney, Esq. GORDON, WOLF & CARNEY, CHTD 100 W Pennsylvania Ave Ste 100 Towson, MD 21204 Telephone: (410) 825 2300 Facsimile: (410) 825 0066 E-mail: bcarney@GWCfirm.com - and - Richard M. Heimann, Esq. Kelly M. Dermody, Esq. Brendan P. Glackin, Esq. Dean M. Harvey, Esq. Anne B. Shaver, Esq. Lin Y. Chan, Esq. Michael K. Sheen, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956 1000 Facsimile: (415) 956 1008 E-mail: rheimann@lchb.com kdermody@lchb.com bglackin@lchb.com dharvey@lchb.com ashaver@lchb.com lchan@lchb.com msheen@lchb.com - and - Thomas G. Foley, Jr., Esq. Robert A. Curtis, Esq. FOLEY BEZEK BEHLE & CURTIS, LLP 15 W. Carrillo Street Santa Barbara, CA 93101 Telephone: (805) 962 9495 Facsimile: (805) 962 0722 E-mail: tfoley@foleybezek.com rcurtis@foleybezek.com - and - Richard E. Donahoo, Esq. Sarah L. Kokonas, Esq. Judith L. Camilleri, Esq. DONAHOO & ASSOCIATES, PC 440 W. First Street, Suite 101 Tustin, CA 92780 Telephone: (714) 953 1010 Facsimile: (714) 953 1777 E-mail: rdonahoo@donahoo.com skokonas@donahoo.com jcamilleri@donahoo.com Attorneys for KNORR-BREMSE AG; KNORR BRAKE COMPANY LLC; and NEW YORK AIR BRAKE LLC: Steven Michael Chasin, Esq. BAKER AND MCKENZIE LLP 815 Connecticut Ave NW Washington, DC 20006 Telephone: (202) 452 7000 Facsimile: (202) 452 7074 E-mail: steven.chasin@bakermckenzie.com KPMG LLP: Must Face Class Action Over Shoddy Miller Energy Audit ---------------------------------------------------------------- Jason Bramwell, writing for goingconcern, reports that a federal judge in Tennessee on Aug. 2 declined to throw out a securities class-action lawsuit against KPMG, in which investors are accusing the Big 4 firm of screwing up the audit of now-defunct oil and gas company Miller Energy Resources Inc. In Lewis Cosby et al. v. KPMG L.L.P., the investors say they got duped when Miller Energy overstated the value of its oil and gas interests in Alaska. The lawsuit also condemns Miller Energy and its auditors of using "a plethora of false statements, fraudulent accounting, and other fraudulent reporting devices to falsify the financial results of Miller Energy, conspiring to perpetrate a massive fraud on plaintiff and others in member of the investing public." The investors claim that KPMG violated Section 10(b) of the Securities Exchange Act and Rule 10b-5 by making material misrepresentations in relation to the sale or purchase of securities. And they argue that KPMG's review of Miller Energy's quarterly financial statements were not in compliance with GAAP, GAAS, and Public Company Accounting Oversight Board standards. As Caleb mentioned last August, Miller Energy bought a bunch of land in Alaska in late 2009 for next to nothing (well, roughly $4.25 million) and then told investors that it was worth $480 million. KPMG was hired by Miller Energy in 2011 and issued an unqualified audit report despite the value of the Alaskan assets being grossly overstated, according to the Securities and Exchange Commission: KPMG and the engagement partner John Riordan failed to properly assess the risks associated with accepting Miller Energy as a client and did not properly staff the audit, which overlooked the overvaluation of certain oil and gas interests that the company had purchased in Alaska the previous year. Among other audit failures, KPMG and Riordan did not adequately consider and address facts known to them that should have raised serious doubts about the company's valuation, and they failed to detect that certain fixed assets were double-counted in the company's valuation. KPMG settled SEC charges for $6.2 million on Aug. 15, 2017, due to its shoddy Miller Energy audit. Riordan also settled charges against him, agreeing to a $25,000 fine and a suspension to practice before the SEC. KPMG did not admit or deny any wrongdoing. In his Aug. 2 ruling, Judge Thomas Varlan of the U.S. District Court Eastern District of Tennessee said after KPMG was hired by Miller Energy in 2011, it failed to complete an independent audit but instead relied on previous reports and defended the valuation of the assets: Even after a report from TheStreetSweepers questioned the valuation of Miller Energy's assets, defendant represented to shareholders that the valuation was accurate and that the article was inaccurate. The 2011 blog from The Street Sweeper, which was published on the financial markets news website Seeking Alpha, was skeptical of the value of assets that Miller Energy purchased in late 2009. At the time, Miller Energy said the assets were valued at more than $327 million, but The Street Sweeper quoted an energy executive who estimated the assets were worth "only $25 million to $30 million and were offset by $40 million worth of liabilities," according to an article by the Knoxville News Sentinel. The judge also said that the investors "adequately alleged that defendant's conduct was an 'egregious refusal to see the obvious, or to investigate the doubtful.'" In a statement emailed to Going Concern, Steven Toll, a managing partner at law firm Cohen Milstein, who represents the investors in the case, said: "We are very pleased by Chief Judge Varlan's opinion as he ruled upon some very important issues affecting auditor liability. Specifically, he ruled that we had alleged sufficient facts to give rise of a strong inference of 'scienter,' which involves showing knowledge or recklessness by the defendant. The court also found that we had adequately pled loss causation, that is a causal link between the investors' loss and the alleged misrepresentation. Finally, the court rejected their effort to dismiss the case on statute of limitations ground, upheld our argument that the claims related back to the original complaint, and denied KPMG's argument that the Section 11 claim was barred by the statute of repose. Thus, it was a very good ruling for the investors in this case." KPMG has yet to respond to a request for comment. [GN] LA LOCHE: Shooting Victim Considers Class-Action Lawsuit -------------------------------------------------------- Taylor MacPherson, writing for 650 CKOM, reports that a teacher who was blinded in a school shooting in La Loche says she's considering a lawsuit after receiving what she called inadequate compensation for her pain and suffering. Charlene Klyne was shot with a shotgun during the shooting at the Dene High School in La Loche on Jan. 22, 2016. The then-17-year-old shooter killed brothers Dayne and Drayden Fontaine at their home before killing a teacher and teaching assistant at the school and injuring seven other people. The shooter has since pleaded guilty to four counts of first-degree murder and seven counts of attempted murder, and was handed a life sentence. On August 22, Saskatchewan Ombudsman Mary McFadyen announced she had completed her investigation into the supports Klyne was provided after the shooting and declined to make any recommendations to the Workers' Compensation Board or Ministry of Justice. "Through no fault of her own, Ms. Klyne was badly injured at work in a horrific event," McFadyen said in a statement. "We looked at the government agencies within our jurisdiction and found they provided her the supports that were within their authority to provide." The benefits provided to Klyne did not include compensation for pain and suffering, the obmudsman's statement noted. Klyne said she has spoken with a lawyer about a potential lawsuit together with other victims of the shooting. Although no statement of claim has been filed with the courts at this stage, Klyne said she has every intention of proceeding. "I'm going forward with this class-action," she said. "Ninety per cent of the victims are on board as far as I know." Klyne, who now lives in Saskatoon, said she feels she was not properly supported after the shooting. Although she received funds through the Workers' Compensation Board, she said money is still very tight and her expenses have increased substantially. "They help, but I don't think they help enough," she said. Klyne said her husband has also been unable to work since the shooting, and the couple supports a 34-year-old son with special needs and a 21-year-old son who is attending university. She is still awaiting a cornea transplant, she said, and has numerous shotgun pellets still lodged inside her body which cause her to suffer from speech difficulties and other issues. Klyne would not say who she intends to name as defendants in the lawsuit, but said it would likely be multiple groups.[GN] LABORATORY CORP: Mendez ADA Suit Filed in S.D. New York ------------------------------------------------------- Laboratory Corporation of America Holdings is facing a class action lawsuit in New York. The case is titled Himelda Mendez, on behalf of herself and all others similarly situated v. Laboratory Corporation of America Holdings doing business as: Labcorp, Case No. 1:18-cv-07733 (S.D.N.Y., August 24, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. The Company operates through two segments, LabCorp Diagnostics and Covance Drug Development. The Company offers a range of clinical laboratory tests, such as blood chemistry analyses, urinalyses, blood cell counts, thyroid tests, Pap tests, hemoglobin A1C, prostate-specific antigen, tests for sexually-transmitted diseases, hepatitis C tests, vitamin D, microbiology cultures and procedures, and alcohol and other substance-abuse tests that are used by hospitals, physicians and other healthcare providers and commercial clients to assist in the diagnosis, monitoring and treatment of diseases.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal LAFAYETTE STEEL: Court Conditionally Certifies Collective Action ---------------------------------------------------------------- In the lawsuit styled JUAN GALINDO, individually and on behalf of himself and all others similarly situated, the Plaintiff, v. LAFAYETTE STEEL ERECTOR, INC. d/b/a LSE CRANE AND TRANSPORTATION, the Defendant, Case No. 7:18-cv-00069-DC (W.D. Tex.), the Hon. Judge David Counts entered an order on August 20, 2018: 1. conditionally certifying case as a collective action; 2. No later than 10 days from the date of this Order, directing Defendant to provide to Class Counsel in Excel (.xlsx) format the following information regarding all Putative Class Members: full name; last known mailing address(es) with city, state, and Zip Code; all known personal email address(es); all known cell phone number(s); beginning date(s) of employment; and ending date(s) of employment (if applicable); 3. approving the form and content of the Notice of Collective Action and Consent Form as well as the expedited issuance of the Text Message Notice, and disseminating Notice in accordance with the parties' stipulation; 4. within 30 days of receiving the contact information for all Putative Class Members, directing Class Counsel to send a copy of the Court-approved Notice and Consent Form to the Putative Class Members by First Class U.S. Mail and electronic mail; 5. within three days of the initial mailing and emailing of the Notice of Collective Action, directing Class Counsel to file an Advisory with the Court indicating the date of delivery of the Notice of Collective Action and Consent Form. 6. directing the Putative Class Members to have 60 days from the initial mailing and emailing of Notice and Consent Forms to Potential Class Members to return their signed Consent forms to Class Counsel for filing with the Court. 7. directing Class Counsel to deactivate the dedicated website for notice by the end of the same 60 day Notice Period date and directing counsel to file an Advisory with the Court. 8. approving terms and conditions agreed to by the parties in their Stipulation, to the extent not otherwise inconsistent with this Order,; 9. approving and adopting the parties' Stipulation, and rendering Plaintiff's Motion for Expedited Conditional Certification of Collective Action and Judicially- Supervised Notice Under Section 216(b) and Brief in Support as moot. LAVECCHIA SURFACE: Rivera Action Seeks Unpaid Overtime ------------------------------------------------------ Richard Rivera and Richard Rivera, Jr. on behalf of themselves and others similarly situated, Plaintiff, v. Lavecchia Surface Preparation Corp., Robert Lavecchia, Frank Lavecchia and Debra Lavecchia, Defendants, Case No. 18-cv-04703 (E.D. N.Y., August 20, 2018), seeks to recover unpaid minimum wage, unpaid overtime compensation, liquidated damages, prejudgment interest and attorneys' fees under the Fair Labor Standards Act and unpaid spread of hours premium and statutory damages for failure to provide required wage and hour law notices pursuant to New York Labor Laws and the New York State Wage Theft Prevention Act. Lavecchia Surface Preparation is in the business of surface preparation, providing flooring to commercial clients and repairing concrete floors in large commercial buildings. Plaintiffs' work involved picking up and dropping off materials, operating floor scrapers to prepare floors for concrete installation, installing concrete floors and polishing, maintaining and repairing concrete floors. [BN] Plaintiffs are represented by: Mohammed Gangat, Esq. 675 3rd Avenue, Suite 1810 New York, NY Tel: (718) 669-0714 Email: mgangat@gangatllc.com LIFECARE MISSOURI: McCulley Seeks to Recover Unpaid OT Wages ------------------------------------------------------------ Marsha McCulley on behalf of herself and all others similarly situated, Plaintiff, v. Lifecare Missouri, Inc., Defendant, Case No. 18-CV-01387 (E.D. Mo., August 21, 2018), seeks to recover overtime compensation at the rate of one and one-half times their regular rates of pay for the hours they worked over 40 each workweek in violation of the Fair Labor Standards Act and the Missouri Minimum Wage Laws. Defendant is a home health care business where McCulley was employed as a home health aide. [BN] Plaintiff is represented by: Ryan M. Furniss, Esq. 222 S. Central Avenue, Suite 1004 Saint Louis, MO 63105 Tel: (314) 899-9101 Fax: (314) 627-5891 Email: rfurniss@furnisslaw.com - and - Anthony J. Lazzaro, Esq. Chastity L. Christy, Esq. THE LAZZARO LAW FIRM, LLC 920 Rockefeller Building 614 W. Superior Avenue Cleveland, Ohio 44113 Tel: (216) 696-5000 Fax: (216) 696-7005 Email: anthony@lazzarolawfirm.com chastity@lazzarolawfirm.com lori@lazzarolawfirm.com LLR INC: Court Denies Bid to Certify Class in Webster et al. Suit ----------------------------------------------------------------- In the lawsuit captioned RACHAEL WEBSTER, LAUREN PORSCH, HOLLY LEDERER, SARA GATES, DONNA NEWMAN, CHRISTINE PROKOP, LORRAINE SNODGRASS, ALISON WHITEHEAD, MELISSA HILL, MAUREEN MCGUINNESS and AMANDA CLOSE, individually and on behalf of all others similarly situated, the Plaintiffs, v. LLR, INC., d/b/a LuLaRoe, the Defendant, Case No. 2:17-cv-00225-DSC (W.D. Pa.), the Hon. Judge David Stewart Cercone entered an order: 1. denying a motion to strike; 2. directing Defendant to amend its answer and affirmative defenses within 14 days of the date of this Order; 3. denying Plaintiffs' motion to certify class; and 4. directing Plaintiffs to show cause why the action should not be dismissed after 21 days of the date of this Order, and directing Defendant to respond 14 days thereafter. The Court explained that the Plaintiffs have failed to meet their burden of demonstrating predominance of common questions or law or and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy as required by Fed.R.Civ.Proc. Rule 23(b)(3). The Court, therefore, will deny Plaintiffs' motion for class certification. With such denial, no federal issues remain in this case. The Court may, sua sponte, consider whether it has jurisdiction, personal and/or subject matter, over the named plaintiffs and the remaining state claims. See 28 U.S.C. section 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). In this instance, the Court will give the remaining Plaintiffs 21 days to show cause why this case should not be dismissed for lack of jurisdiction. LOGMEIN INC: Gainey McKenna Files Class Action Lawsuit ------------------------------------------------------ Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against LogMeIn, Inc. ("LogMeIn" or the "Company") (NASDAQ: LOGM) in the United States District Court for the Central District of California on behalf of a class consisting of investors who purchased or otherwise acquired LogMeIn securities on the open market from March 1, 2017 and July 26, 2018, inclusive (the "Class Period"), seeking to recover compensable damages caused by Defendants' violations of the Securities Exchange Act of 1934. On February 1, 2017, LogMeIn announced that it had completed its merger with the GoTo business of Citrix Systems, Inc. On July 26, 2018, LogMeIn reported quarterly financial and operational results for the second quarter of fiscal 2018 and reduced its financial guidance for fiscal 2018. During a follow up conference call, management disclosed that LogMeIn's performance during the quarter failed to meet expectations in part due to the "combination of imperfect execution and some hangover effects of last year's merger with the GoTo business led to disappointing renewal rates." Following this disclosure, shares of the Company's stock declined $26.60 per share, or over 25% in value, to close on July 27, 2018 at $77.85. The Complaint alleges that Defendants made materially false and misleading statements during the Class Period and failed to disclose to investors that LogMeIn's business practices had negatively impacted renewal rates for certain services it provides. The Complaint further alleges that investors purchased LogMeIn's securities at artificially inflated prices during the Class Period and sustained significant investment losses. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm prior to the October 19, 2018 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please; Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. Gainey McKenna & Egleston Telephone: (212) 983-1300 Website: www.gme-law.com Email: tjmckenna@gme-law.com gegleston@gme-law.com. [GN] MAVENIR INC: Wayne Retirement System Balks at Merger Deal --------------------------------------------------------- WAYNE COUNTY EMPLOYEES' RETIREMENT SYSTEM, on behalf of itself and all others similarly situated, the Plaintiff, v. MAVENIR, INC. F/K/A XURA, INC., PHILIPPE TARTAVULL, HENRY R. NOTHHAFT, SUSAN D. BOWICK, JAMES BUDGE, NICCOLO DE MASI, MATTHEW A. DRAPKIN, DORON INBAR, and MARK C. TERRELL, the Defendants, Case No. 1:18-cv-01229-UNA (D. Del., Aug. 10, 2018), alleges that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act by providing false and misleading proxy materials in relation to a merger transaction. According to the complaint, the class action arises from a transaction announced on May 23, 2016, pursuant to which Xura, Inc. was acquired by Sierra Private Holdings II Ltd. through its wholly owned subsidiary, Sierra Private Merger Sub Inc., both of which are affiliates of Siris Capital Group, LLC. The action is brought on behalf of all Xura shareholders of record as of July 11, 2016, the record date for Xura shareholders to be eligible to vote on the Merger. The claims asserted are alleged against Xura, Xura's former President and Chief Executive Officer, as well as a director, Philippe Tartavull and the remaining members of Xura's Board of Directors for their violations of Sections 14(a) and/or 20(a) of the Securities Exchange Act of 1934. On May 23, 2016, Xura's Board of Directors caused Xura to enter into an agreement and plan of merger. Pursuant to the terms of the Merger Agreement, stockholders of Xura received $25.00 per share in cash. The Merger was approved by a shareholder vote on August 16, 2016 and closed on August 19, 2016. Prior the shareholder vote, Defendants issued a Preliminary Proxy Statement on June 28, 2016, a Final Proxy Statement on July 12, 2016, and on July 26, 2016, a supplemental Proxy Statement, all filed with the United States Securities and Exchange Commission in connection with the Merger. The Proxy and Supplemental Proxy contained materially incomplete and misleading disclosures. The Proxy and Supplemental Proxy are deficient and misleading in that they fail to provide adequate disclosure of all material information related to the Merger. In particular, the Proxy failed to disclose: (a) material communications between Tartavull and Siris, including ones in which Tartavull discussed certain merger terms without authorization by the Board or the Board subcommittee that had been formally provided with extensive authority with respect to consideration of the Merger, the Strategic Committee, and undermined Xura's negotiating leverage, (b) the fact that the Strategic Committee played no meaningful role in the process that led to the Merger, contrary to the representations in the Proxy, (c) the fact that Siris and Tartavull repeatedly cut the Board's financial advisor, Goldman Sachs, out of the loop of the Merger negotiations, notwithstanding the role the Proxy claimed Goldman played in that process, (d) the fact that Xura imposed conditions on an interested bidder that all relevant participants in the process acting on behalf of the Company knew were unreasonable and unnecessary, leading it to further participation in the bidding, and (e) the fact that, while the Proxy emphasized purported contacts to prospective buyers and claimed that none expressed an interest in buying Xura, another potential bidder had in fact expressed such interest to Tartavull but somehow learned that Siris was Xura’s counterparty, notwithstanding provisions of the non-disclosure agreement signed by Siris and Xura barring such disclosure, and instead of making a bid reached out to Siris seeking a role as a co-investor. The Supplemental Proxy emphasized that Xura and Siris had "not reached any agreements about the continuing employment of the executive officers of the Company". This was a misleading representation as regardless of whether there had been any formal negotiations as to Tartavull's employment after the Merger, it was always clear that Siris' intent had been for Tartavull to continue in his role as CEO of the post-merger company. As a result of these material misrepresentations and omissions, Xura shareholders were misled into accepting consideration from the Merger that was well below fair value for their Xura shares. Mavenir is a technology company headquartered in Richardson, Texas, in the United States.[BN] Attorneys for Plaintiffs: Ned Weinberger, Esq. Thomas Curry, Esq. Christopher J. Keller, Esq. Eric J. Belfi, Esq. Ira A. Schochet, Esq. Francis P. McConville LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907 0700 Facsimile: (212) 818 0477 MBG TAVERNS: Underpays Cooks & Sous-Chefs, Morales & Cortes Claim ----------------------------------------------------------------- OMAR BAUTISTA MORALES, and JOSE LUIS YANEZ CORTES, individually and on behalf of others similarly situated, Plaintiffs v. MBG TAVERNS INC D/B/A THE STOREHOUSE; MICHAEL GRALTON; and BERNARD GRALTON, Defendants, Case No. 1:18-cv-06431 (S.D.N.Y., July 17, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Bautista Morales was employed by the Defendants as a cook from February 2014 to June 10, 2018. The Plaintiff Yanez Cortes was employed by the Defendants as a sous-chef from January 2014 to February 28, 2018. MBG Taverns Inc d/b/a The Storehouse is a corporation organized under the laws of the State of New York. The Company own and operates a sports bar. [BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MCCORMICK & SCHMICK: Morris Sues Over Illegal Tip Pool ------------------------------------------------------ Candace Morris on her own behalf and on behalf of other similarly situated persons, Plaintiff, v. McCormick & Schmick Restaurant Corp. and Landry's, Inc., Case No. 18-cv-00094 (M.D. N.C., August 20, 2018), seeks to recover unpaid minimum wages, and related penalties and damages under the Fair Labor Standards Act. Plaintiff currently works as a server for Defendants' restaurant business located at 448 West 47th Street, Kansas City, MO 64112. Morris claims to have participated in an illegal tip pool thus rendering her pay below minimum wage rates. [BN] Plaintiff is represented by: John J. Ziegelmeyer III, Esq. HKM EMPLOYMENT ATTORNEYS LLP 1501 Westport Road Kansas City, MO 64111 Tel: (816) 875-3332 Email: jziegelmeyer@hkm.com Website: www.hkm.com - and - Eric L. Dirks, Esq. John F. Doyle, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Tel: (816) 945-7165 Email: dirks@williamsdirks.com jdoyle@williamsdirks.com - and - Michael Hodgson, Esq. THE HODGSON LAW FIRM, LLC 3699 SW Pryor Rd. Lee's Summit, MO 64082 Tel: (816) 600-0117 Email: mike@thehodgsonlawfirm.com MDL 2709: Class Certification Sought in Dollar General Litigation ----------------------------------------------------------------- In the case, In re: DOLLAR GENERAL CORP. MOTOR OIL MARKETING AND SALES PRACTICES LITIGATION with Master Case No. 16-02709-MD-W-GAF, the Plaintiffs ask the Court for an order certifying these 26 lawsuits as class actions: Case No. 4:16-cv-00105-GAF; Case No. 4:16-cv-00517-GAF; Case No. 4:16-cv-00518-GAF; Case No. 4:16-cv-00519-GAF; Case No. 4:16-cv-00520-GAF; Case No. 4:16-cv-00521-GAF; Case No. 4:16-cv-00522-GAF; Case No. 4:16-cv-00523-GAF; Case No. 4:16-cv-00524-GAF; Case No. 4:16-cv-00525-GAF; Case No. 4:16-cv-00526-GAF; Case No. 4:16-cv-00528-GAF; Case No. 4:16-cv-00529-GAF; Case No. 4:16-cv-00530-GAF; Case No. 4:16-cv-00531-GAF; Case No. 4:16-cv-00532-GAF; Case No. 4:16-cv-00533-GAF; Case No. 4:16-cv-00534-GAF; Case No. 4:16-cv-00606-GAF; Case No. 4:16-cv-00607-GAF; Case No. 4:16-cv-00868-GAF; Case No. 4:16-md-02709-GAF; Case No. 4:17-cv-00413-GAF; Case No. 4:17-cv-00584-GAF; Case No. 4:17-cv-00831-GAF; and Case No. 4:17-cv-00832-GAF. Attorneys for Plaintiffs: Kenneth B. McClain, Esq. Kenneth B. McClain, Esq. Kevin D. Stanley, Esq. Colin W. McClain, Esq. J'Nan C. Kimak, Esq. Andrew K. Smith, Esq. HUMPHREY FARRINGTON & MCCLAIN, P.C. 221 West Lexington, Suite 400 Independence, MO 64050 Telephone: (816) 836 5050 Facsimile: (816) 836 8966 E-mail: kbm@hfmlegal.com kds@hfmlegal.com cwm@hfmlegal.com jck@hfmlegal.com aks@hfmlegal.com - and - Allan Kanner, Esq. Cynthia St. Amant, Esq. KANNER & WHITELEY, LLC 701 Camp Street New Orleans, LA 70130 Telephone: (504) 524 5777 Facsimile: (504) 524 5763 E-mail: a.kanner@kanner-law.com c.stamant@kanner-law.com MDL 2785: Court Narrows Claims in EpiPen Antitrust Suit ------------------------------------------------------- The United States District Court for the District of Kansas granted in part and denied in part Myland Defendants' Motion to Dismiss the case captioned IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation. This Document Applies to Consumer Class Cases. MDL No. 2785, Case No. 17-md-2785-DDC-TJJ (D. Kan.). The EpiPen is a disposable, prefilled automatic injection device that delivers epinephrine also known as adrenaline to treat severe allergic reactions known as anaphylaxis. Anaphylaxis is a life-threatening allergic reaction that can occur rapidly after exposure to an allergen. Anaphylaxis manifests in a variety of symptoms, including swelling of the tongue and throat, vomiting, reduced blood pressure, difficulty breathing, and, if untreated, death. The Class Complaint alleges that the Mylan and Pfizer Defendants have maintained a monopoly over the EpiPen market and its profitable revenues by devising an illegal scheme to monopolize the market for EAI devices. The Class Complaint asserts that defendants carried out their illegal scheme through several different avenues. The Class Complaint asserts nine claims against the Mylan Defendants: (1) Sherman Act Sections 1 and 2 violations (Count I); (2) Clayton Act Section 3 violations (Count II); (3) conspiracy violating state antitrust statutes (Count III); (4) monopolization violating state antitrust statutes (Count IV); (5) attempted monopolization violating state antitrust statutes (Count V); (6) tying violating state antitrust statutes (Count VI); (7) RICO Act violations (Count VII); (8) violation of state consumer protection laws (Count VIII); and (9) unjust enrichment (Count IX). The Class Complaint asserts just Counts I-V and VII jointly against the Mylan and Pfizer Defendants. Antitrust Claims The Defendants assert eight different arguments why the class plaintiffs' factual allegations never state a plausible antitrust claim under either federal or state law. Have the class plaintiffs alleged a plausible tying claim based on the EpiPen 2-Pak? The court recognizes that the class plaintiffs have alleged a tying relationship based on two products that are functionally identical. The Mylan Defendants assert that the two products thus are interchangeable. For example, a patient could use either one of the two EpiPens in a 2-Pak as the primary device and the other one as the back-up device. The Mylan Defendants thus argue that it is not plausible that the primary EAI device and backup EAI device belong to separate markets. Indeed, the Tenth Circuit has defined the "relevant product market in any given case as one composed of products that have reasonable interchangeability for the purposes for which they are produced price, use and qualities considered." Although the two products here have the same qualities, the Class Complaint defines how patients use them in a functional sense as two separate products. A patient uses one EpiPen as the primary EAI device and the other as the back-up device. The parties do not cite, and the court's research has not revealed, any tying cases involving identical products with different and distinct uses what the class plaintiffs allege here. The Mylan Defendants cite two cases where courts refused to find two separate products to support a tying claim, but those cases involved preliminary injunction motions where the factual record failed to demonstrate the existence of two separate product markets. In contrast here, the Class Complaint asserts facts that plausibly allege two separate product markets one for EAI primary devices and the other for back-up devices. These allegations are sufficient to state a claim at this stage of the litigation. Ultimately, to prevail on their tying claim, the class plaintiffs must adduce admissible evidence to support a reasonable finding that two separate product markets exist. But, to survive the Motions to Dismiss, plaintiffs need only make plausible factual allegations of two different product markets. They have satisfied that requirement. Have the class plaintiffs alleged plausible exclusive dealing claims based on Mylan's exclusive dealing contracts with PBMs and schools? The class plaintiffs assert that the Class Complaint plausibly alleges facts capable of supporting a finding or inference of substantial market foreclosure. The Class Complaint alleges that Mylan's exclusionary contracts with PBMs prevented competitors from accessing formularies covering more than 50% of the PBM market in the U.S. Also, the Class Complaint alleges that Mylan created a substantial, additional need for EpiPens by adding school districts to the market for EAI devices. More than 67,000 school districts now purchase EpiPens, and the districts usually are bulk purchasers. For example, the public schools in Fairfax County, Virginia, order about 1,100 EpiPen 2-Paks annually to have them on hand for their 180,000 students. The Class Complaint also alleges that Mylan gained another advantage by opening up the school market -- gaining access to nursing staff and creating familiarity with the EpiPen among parents. Although these allegations never assert definitively that the EpiPen4Schools program's exclusionary contracts foreclosed a substantial share of the market, the court declines to conclude at the motion to dismiss stage that these facts fail to plead adequate foreclosure. Indeed, our court has recognized that Tampa Electric provides a number of other factors which may be relevant to a rule of reason analysis in an exclusive dealing claim and thus it has refused to decide at the pleading stage that plaintiff had failed to plead adequate foreclosure levels to state an exclusive dealing claim. The court comes to the same conclusion here. To determine whether the EpiPen4Schools program's exclusionary contracts foreclosed a substantial share of the market, the court must weigh the various factors outlined in Tampa Electric. The court cannot engage in such an analysis at the pleading stage. Instead, the court considers the Class Complaint's allegations in the light most favorable to the class plaintiffs. And it concludes that the class plaintiffs plausibly have alleged facts supporting a finding or inference that the probable effect of Mylan's exclusionary contracts in the EpiPen4Schools program substantially foreclosed competition. The court thus concludes that the class plaintiffs have stated a plausible exclusive dealing claim based on Mylan's EpiPen4Schools program. Have the class plaintiffs alleged causation to support their antitrust claims based on the patent litigation settlements? The Class Complaint alleges that Mylan created a substantial, additional need for EpiPens by adding school districts to the market for EAI devices. More than 67,000 school districts now purchase EpiPens, and the districts usually are bulk purchasers. The Class Complaint also alleges that Mylan gained another advantage by opening up the school market gaining access to nursing staff and creating familiarity with the EpiPen among parents. Although these allegations never assert definitively that the EpiPen4Schools program's exclusionary contracts foreclosed a substantial share of the market, the court declines to conclude at the motion to dismiss stage that these facts fail to plead adequate foreclosure. Indeed, our court has recognized that Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961), provides a number of other factors which may be relevant to a rule of reason analysis in an exclusive dealing claim, and thus it has refused to decide at the pleading stage that plaintiff had failed to plead adequate foreclosure levels" to state an exclusive dealing claim. The court comes to the same conclusion here. To determine whether the EpiPen4Schools program's exclusionary contracts foreclosed a substantial share of the market, the court must weigh the various factors outlined in Tampa Electric. The court cannot engage in such an analysis at the pleading stage. Instead, the court considers the Class Complaint's allegations in the light most favorable to the class plaintiffs. And it concludes that the class plaintiffs plausibly have alleged facts supporting a finding or inference that the probable effect of Mylan's exclusionary contracts in the EpiPen4Schools program substantially foreclosed competition. The court thus concludes that the class plaintiffs have stated a plausible exclusive dealing claim based on Mylan's EpiPen4Schools program. Have the class plaintiffs alleged causation to support their antitrust claims based on the patent litigation settlements? Recently, the Massachusetts federal district court denied summary judgment against an antitrust claim based on a reverse payment settlement. Analyzing the causation issue, that court noted, the Supreme Court has explained that it is normally not necessary to litigate patent validity to answer the antitrust question unless, perhaps, to determine whether the patent litigation is a sham because an unexplained large reverse payment itself would normally suggest that the patentee has some serious doubts about the patent's survival. The Massachusetts court thus concluded that, on summary judgment, the standard requiring Plaintiffs to produce `some evidence' of invalidity or non-infringement does not require Plaintiffs `to prove that the generic defendant would have won, only that it could have. Applying that reasoning here,7 the class plaintiffs need not allege that Teva would have prevailed in the patent litigation it merely needs to allege that it could have. The Class Complaint's allegations assert plausibly that Teva could have prevailed in the patent litigation if the parties has not resolved the case through an alleged reverse payment settlement. These allegations thus sufficiently assert that Pfizer's patents did not bar a generic competitor from entering the market. And the class plaintiffs have stated a plausible antitrust claim based on the alleged unlawful reverse payment settlements. Have the class plaintiffs alleged a plausible conspiracy between Mylan and Pfizer? Here, the Class Complaint alleges parallel conduct by asserting, plausibly, that both the Mylan and Pfizer Defendants participated in a scheme to secure invalid EpiPen patents, initiate patent infringement litigation, and then settle those lawsuits with reverse payment settlements. The court also concludes that the Class Complaint, construed in the class plaintiffs' favor, alleges sufficient "plus factors" and thus allows one to infer plausibly that an actionable agreement existed. The class plaintiffs allege facts supporting a plausible inference that defendants were motivated to enter an agreement to exclude competitors from entering the EAI market. The class plaintiffs also allege that defendants worked together to effectuate this scheme by securing patents, litigating patent infringement lawsuits, and entering into reverse payment settlements. The court recognizes that each of these allegations of circumstantial agreement standing alone may not be sufficient to imply agreement but taken together, they provide a sufficient basis to plausibly contextualize the agreement necessary for pleading a Section 1 claim. The Defendants argue that the Class Complaint asserts no allegations supporting at least one of the plus factors, that defendants acted against their own economic interest. The Defendants assert that the Class Complaint alleges that the Mylan and Pfizer Defendants had a unified interest in protecting the EpiPen monopoly and worked collaboratively to enhance the product's sales volume and profitability. According to defendants, these allegations allow only an inference of lawful parallel conduct—not an unlawful agreement. But the class plaintiffs respond that the Class Complaint alleges that Pfizer also participates in the EAI market through its generic division Greenstone's distribution of the Adrenaclick generic EAI. So, the class plaintiffs contend, Pfizer was able to control a portion of the small amount of the EpiPen's competition. From these allegations, one could reasonably infer that Pfizer acted against its own interests by conspiring with Mylan to exclude EpiPen competition competition that includes the generic Adrenaclick that Pfizer also distributes through its Greenstone division. The court thus concludes that the Class Complaint sufficiently alleges facts capable of supporting a finding or inference of requisite plus factors. Combined with defendants' alleged parallel business behavior, they state a plausible antitrust claim. The court thus denies defendants' Motions to Dismiss on this basis. Have the class plaintiffs alleged a viable antitrust claim based on the reverse patent litigation settlements? Although the class plaintiffs cannot provide the precise terms of the Sandoz agreement without the benefit of discovery, one plausibly can infer from Sandoz's actions that it received significant consideration in exchange for its actions, i.e., agreeing to stay its ANDA application for its generic product. Indeed, one also could infer the opposite conclusion that Sandoz agreed to stay its ANDA application because it considered the patent infringement claims valid and appreciated the risk that it would lose the patent infringement litigation. But, at the pleading stage, the court cannot make that determination. Instead, the court must consider the facts alleged in the class plaintiffs' favor and draw reasonable inferences from them. Applying that standard here, the court concludes that the class plaintiffs have asserted a plausible antitrust claim based on their allegations that the Sandoz settlement involved an unlawful reverse payment settlement. Have the class plaintiffs stated a plausible antitrust claim based on the FDA Citizen Petition? The Class Complaint also alleges that Mylan waited just weeks before the FDA was required to respond to the ANDA to supplement its Citizen Petition by submitting a study. The Class Complaint asserts that this study had numerous flaws that demonstrate that Mylan was not acting in good faith by submitting it to the FDA. The Class Complaint identifies specific flaws: the study lacked a control group; it did not use the actual generic device, but a prototype; it used a small number of participants; the researchers failed to provide proper instructions to the study's participants for using the prototype; and the researchers told the participants to watch a video instead of actually use the prototype. The Mylan Defendants respond with various arguments attacking these allegations. They explain the legitimacy of the filings' timing, the doctor's medical statement, the payments the doctor received noting that the doctor received payments from other pharmaceutical companies, including Teva, and the supplemental study. But these arguments present disputed fact issues that the court cannot decide at the pleading stage. On a motion to dismiss, the court considers the allegations in the class plaintiffs' favor and concludes they sufficiently allege that Mylan's FDA Citizen Petition was objectively baseless. The court also finds that the Class Complaint plausibly alleges that Mylan used the process of filing the FDA Citizen Petition not the outcome of that proceeding to restrain competition. The Class Complaint repeatedly alleges that Mylan used the FDA Citizen Petition process as a means to delay Teva's market entry. These allegations suffice to state an antirust claim based on Mylan's Citizen Petition that falls within the sham exception to the Noerr-Pennington doctrine. Have the class plaintiffs alleged a plausible antitrust claim based on allegedly misleading statements? The Mylan Defendants contend that the class plaintiffs' allegations fail to assert that Mylan's allegedly deceptive statements were clearly false, as the first factor of the six-factor test requires. The court disagrees. One plausibly can infer from the Class Complaint's allegations that Mylan's statements about Auvi-Q were clearly false. Although the Class Complaint does not use those precise words, it calls the statements misinformation and so misleading that they ensured that physicians would think that the EpiPen was the only realistic choice for their patients. Of course, to prevail on their speech-based claims, the class plaintiffs must come forward with evidence showing that these alleged statements produced anticompetitive effects in violation of the antitrust laws. But, at the pleading stage, the court applies Ayerst's rationale and concludes that the class plaintiffs should be allowed to go forward with the discovery process to substantiate their claim" that Mylan's allegedly deceptive speech violated the antitrust laws. Ayerst Labs., 850 F.2d at 917. Also, following Ayerst, the court need not decide whether the Class Complaint alleges facts capable of supporting each factor before it could overtake the de minimis presumption. The Ayerst plaintiff did not satisfy such an obligation at the pleading stage. The court finds persuasive Ayerst's conclusion that these factors require factual development through the discovery process. Here, the court cannot evaluate several of the factors adequately without the facts that discovery may or may not produce. So, the court denies the motion to dismiss the class plaintiffs' deceptive speech claim at the pleading stage. Have the class plaintiffs stated plausible claims for relief under state antitrust laws? The class plaintiffs cite only one case where a federal court has permitted antitrust claims asserted under the Tennessee Trade Practices Act to survive a motion to dismiss. Asacol Antitrust Litig., No. 15-12730-DJC, 2016 WL 4083333, at *15 (D. Mass. July 20, 2016). The Asacolcourt relied on two Tennessee cases allowing antitrust claims to proceed under the Act. But, as Asacol recognized, the two Tennessee cases never addressed whether the statute permits claims based on unilateral conduct. The court is not persuaded by Asacol's reasoning, at least not as applied to the unilateral conduct claimed here. Instead, it finds persuasive the federal district court cases cited above. These cases considered the plain language of the Tennessee statute, specifically addressed whether it applies to unilateral conduct, and determined that it does not reach such claims. For this reason, the court dismisses the class plaintiffs' Tennessee antitrust claims based on unilateral conduct, as asserted in Counts IV, V, and VI. RICO Claim The court now considers whether the class plaintiffs have asserted a plausible RICO claim against defendants. Subsection 1962(c) of RICO makes it: unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. RICO Enterprise The Class Complaint describes how the RICO Defendants and PBM Conspirators advanced the goals of the EpiPen Pricing Enterprise allegedly by affirmatively misrepresent[ing] or conceal[ing] the existence of the inflated and fraudulent nature of these list price increases as well as the existence, amount, and purpose of the discounts given to the PBM Conspirators to Plaintiffs, the Classes, consumers, health care payers, and the general public. The Defendants characterize these allegations as a commercial negotiation, where the parties have their own independent business interests and one party demands higher rebates and lower prices from the other. And, they contend, to recognize a RICO enterprise here would be tantamount to holding that negotiating strategies by PBMs, insurers, state Medicaid agencies, and other healthcare payors throughout the U.S. amount to organized criminal conduct which obviously cannot be, and is not, the law. Perhaps a factfinder would accredit defendants' characterization of these interactions. But it might not, and the court cannot accept defendants' characterization of the allegations at the pleading stage. Instead, when one accepts the allegations as true and views them in the class plaintiffs' favor, one reasonably can infer that the PBMs' alleged conduct amounted to far more than a commercial negotiation. Instead, the Class Complaint alleges that the PBMs formed relationships with defendants sufficient to plead a plausible RICO enterprise. And finally, the Class Complaint alleges an enterprise with longevity sufficient to permit the associates to pursue the enterprise's purpose. The class plaintiffs assert that, beginning at least on January 1, 2009, to the present, the associates have engaged in various activities to pursue the enterprise's purpose. The Class Complaint plausibly pleads a RICO enterprise. Conducted the Affairs of a RICO Enterprise The Class Complaint alleges that the Mylan Defendants committed various acts as part of a scheme to defraud the public about the EpiPen's pricing, the medical necessity, quality, and characteristics of the EpiPen, and the EpiPen 2-Pak. And the Class Complaint alleges that the Mylan and Pfizer Defendants, working together, participated in various conduct designed to stifle generic competition, e.g., filing patent infringement lawsuits and then resolving those lawsuits through unlawful reverse payment settlements. These alleged facts permit a reasonable inference that both the Mylan and Pfizer Defendants played some part even a bit part in conducting the enterprise's affairs. And these allegations suffice to support a plausible RICO claim. RICO Causation The class plaintiffs are suing to recover for their own injuries as EpiPen consumers or third-party payors from having to pay the inflated prices for the EpiPen. And one plausibly can infer from the Class Complaint that the class plaintiffs' alleged injuries were a foreseeable and natural consequence of defendants' scheme to defraud the public about the EpiPen's price. The court finds the class plaintiffs' allegations sufficient to allege RICO causation. RICO Conspiracy Subsection 1962(d) makes it unlawful for any person to conspire to violate subsection 1962(c). . Defendants assert that the Class Complaint fails to state a plausible RICO claim under Section 1962(c), and so, it also fails to state a plausible RICO conspiracy claim under Section 1962(d). For reasons already explained, the court rejects defendants' arguments that the Class Complaint fails to state a RICO conspiracy claim under Section 1962(c). Instead, the court concludes that the class plaintiffs have alleged a plausible RICO claim under Section 1962(c) sufficient to survive Rule 12(b)(6) dismissal. The class plaintiffs also allege that defendants violated Section 1962(d) by conspiring to violate Section 1962(c). The class plaintiffs thus have stated a plausible claim for RICO conspiracy. Mylan Defendants' Motion to Dismiss Plaintiffs' Consolidated Class Action Complaint is granted in part and denied in part as set forth in this Order. A full-text copy of the District Court's August 20, 2018 Memorandum and Order is available at https://tinyurl.com/y86ync2n from Leagle.com. All Plaintiffs, Plaintiffs, represented by Lynn Lincoln Sarko , Keller Rohrback, LLC, Paul J. Geller -- Pgeller@kellerrohrback.com -- Robbins Geller Rudman & Dowd, LLP, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns Charest, LLP. Consumer Class Cases Plaintiffs, (For Filings as to All Consumer Class Cases Plaintiffs), Plaintiffs, represented by Alison Elizabeth Chase -- achase@kellerrohrback.com -- Keller Rohrback, LLP, Arthur L. Shingler, III -- ashingler@rgrd.com -- Robbins Geller Rudman & Dowd, LLP, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Gustafson Gluek PLLC, Eric Fierro -- efierro@kellerrohrback.com -- Keller Rohrback LLP, Joseph C. Bourne -- jbourne@gustafsongluek.com -- Gustafson Gluek PLLC, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback, LLC, Mahde Youssef Abdallah -- mya@miller.law.com -- The Miller Law Firm, PC, Rex A. Sharp , Rex A. Sharp, PA, Ryan C. Hudson , Rex A. Sharp, PA, Ryan McDevitt -- rmcdevitt@kellerohrback.com -- Keller Rohrback, LLC, Sharon S. Almonrode -- ssa@miller.law.com -- The Miller Law Firm, PC, pro hac vice, Stuart A. Davidson -- sdavidson@kellerrohrback.com -- Robbins Geller Rudman & Dowd, LLP, Tanya Korkhov -- tkorkhov@kellerrohrback.com -- Keller Rohrback, LLP & William L. Kalas -- WK@miller.law.com -- The Miller Law Firm, PC. Mylan N.V., Defendant, represented by Adam K. Levin -- adam.levin@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com -- Lathrop Gage LLP, Brian R. Richichi -- brian.richichi@hoganlovells.com -- Hogan Lovells US LLP, Carolyn Anne DeLone -- carrie.delone@hoganlovells.com -- Hogan Lovells US LLP, Chad E. Blomberg -- cblombe@lathropgage.com -- Lathrop Gage, LLP, Christopher D. Edelman , Hogan Lovells US LLP, Daniel Thomas Graham -- dgraham@clarkhill.com -- Clark Hill, PLC, pro hac vice, David M. Foster -- david.foster@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, James Moloney -- jmaloney@lathropgage.com -- Lathrop Gage LLP, Jon Myer Talotta -- jon.talotta@hoganlovells.com -- Hogan Lovells US LLP, Justin Bernick ,Kathryn M. Ali , Hogan Lovells US LLP, pro hac vice, Sue Lin -- tony.lin@hoganlovells.com -- Hogan Lovells US LLP, Timothy Robert Herman -- therman@clarkhill.com -- Clark Hill, PLC, pro hac vice & Yuri Fuchs -- yuri.fuchs@hoganlovells.com -- Hogan Lovells US, LLP. MEDNAX INC: Faces Securities Suit over Anesthesiology Business -------------------------------------------------------------- Mednax, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the company is defending against a securities class action suit related to the company's anesthesiology business. On July 10, 2018, a securities class action lawsuit was filed against the company and certain of its officers and a director in the U.S. District Court for the Southern District of Florida (Case No. 0:18-cv-61572-WPD) that purports to state a claim for alleged violations of Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 thereunder, based on statements made by the defendants primarily concerning the company's anesthesiology business. The complaint seeks unspecified damages, interest, attorneys' fees and other costs. Mednax, Inc. said, "We believe this lawsuit to be without merit and intend to vigorously defend against it. The lawsuit is in the very early stages and, at this time, no assessment can be made as to its likely outcome or whether the outcome will be material to us." Mednax, Inc. together with its subsidiaries, provides newborn, anesthesia, maternal-fetal, radiology, pediatric cardiology, and other pediatric subspecialties physician services in the United States and Puerto Rico. The company was founded in 1979 and is based in Sunrise, Florida. MERCEDES BENZ: Faces Class Action Over 590 Mars Red Paint Defect ---------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a Mercedes Benz owner claims in a federal class action that vehicles painted with 590 Mars red have "a serious defect that causes the exterior surface of the vehicles to microblister, peel, and bubble." MID-AMERICA TAPING: Vega's Bid to Certify Class Denied as Moot -------------------------------------------------------------- In the lawsuit captioned Javier Vega, et al., the Plaintiffs, v. Mid−America Taping & Reeling, Inc., et al., the Defendant, Case No. 1:16-cv-08158 (N.D. Ill.), the Hon. Judge Thomas M. Durkin entered an order denying Plaintiffs' motions to certify class as moot. According to the docket entry made by the Clerk on August 20, 2018, the Court entered an order on June 12 explaining that Plaintiffs had failed to show they had Article III standing to bring their case. The Court granted Plaintiffs an opportunity to amend their complaint by July 3, 2018. Plaintiffs then sought an extension until July 17, 2018 to file their amended complaint, which the Court granted. The Plaintiffs have now failed to file their amended complaint or seek another extension. Plaintiffs' case is dismissed for failure to allege Article III standing. Plaintiffs' motions to certify class are denied as moot. MINNESOTA: Class-Action Suit Over Civil Commitment Program ---------------------------------------------------------- ABC 5 Eyewitness News reports that a long-running class action over the constitutionally of Minnesota's civil commitment program for sex offenders has come to an end. U.S. District Judge Donovan Frank ugust 23 the final remaining claims. He cited a decision by the 8th U.S. Circuit Court of Appeals, which overturned his earlier declaration that the program was unconstitutional because few people had ever been released from it. The U.S. Supreme Court then declined to hear the case. The dismissed claims dealt mostly with allegations of other rights violations, which had been put on hold. The judge said he stands by his conclusions that some of the facts revealed during the trial are shocking to the conscience. And he urges the public and all stakeholders to carefully consider the complex issued raised by the case.[GN] MONTGOMERY, NY: Class & Subclasses Certified in Hill & Rogers Suit ------------------------------------------------------------------ In the lawsuit captioned PERRY HILL and JAMES ROGERS, both individually and on behalf of a class of others similarly situated, the Plaintiffs, v. COUNTY OF MONTGOMERY, MICHAEL AMATO, and MICHAEL FRANKO, the Defendants, Case No. 9:14-cv-00933-BKS-DJS (N.D.N.Y.), the Hon. Judge Brenda K. Sannes entered an order on August 20, 2018: 1. granting Plaintiffs' motion for class certification as to a liability class under Fed.R.Civ.Proc. Rules 23(b)(3) and (c)(4) and certifying following Primary Class and Sub-Classes: Primary Class: "all detainees who have been or will be placed into the custody of the Montgomery County Jail and were detained for at least two consecutive weeks. The class period commences on July 24, 2011, and extends to the date on which Montgomery County is enjoined from, or otherwise ceases, enforcing its policy, practice and custom of refusing to provide an appropriate amount of nutritional sustenance to all detainees admitted to the Montgomery County Jail. Specifically excluded from the class are Defendant and any and all of its respective affiliates, legal representatives, heirs, successors, employees or assignees. Pre-Trial Detainee Sub-Class: "all members of the Primary Class but who were housed as a Pre-Trial Detainee, in that they had not yet been convicted of their charges"; and Post-Trial Detainee Sub-Class: "all members of the Primary Class, but who were housed as a Post-Trial Detainee, in that they had been convicted of their charges, either by a plea or jury trial"; 2. appointing Perry Hill and James Rogers as class representatives; and 3. appointing Plaintiffs' attorneys of record as class counsel. Attorneys for Plaintiff: Elmer Robert Keach, III, Esq. Maria K. Dyson, Esq. LAW OFFICES OF ELMER ROBERT KEACH, III, P.C. One Pine West Plaza, Suite 109 Albany, NY 12205 - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street N.E., Suite 302 Washington, DC 20002 Attorneys for Defendants: Jonathan M. Bernstein, Esq. GOLDBERG SEGALLA LLP 8 Southwoods Boulevard, Suite 300 Albany, NY 12211 MORRIS FARMERS: Castellon Suit Alleges FLSA Violation ----------------------------------------------------- Maria Castellon, individually and on behalf of those similarly situated v. Morris Farmers Market, LLC, Case No. 2:18-cv-12186 (D. N.J., July 30, 2018), is brought against the Defendant for violations of the Fair Labor Standards Act and the New Jersey Wage Payment Law. The Plaintiff Maria Castellon is a resident of Morris County, New Jersey. In or about April 2017, the Defendant hired the Plaintiff as a floor associate. The Plaintiff's job duties included organizing produce and conducting inventory. The Defendant, Morris Farmers Market, LLC, is a New Jersey limited liability company which has a principal place of business at 30 Lafayette Avenue, Morristown, Morris County, New Jersey. [BN] The Plaintiff is represented by: Graham F. Baird, Esq. LAW OFFICES OF ERIC A. SHORE, P.C. Two Penn Center 1500 JFK Blvd., Ste 1240 Philadelphia, PA 19110 Tel: (267) 546-0131 Fax: (215) 944-6124 E-mail: grahamb@ericshore.com NANTKWEST INC: Seeks 9th Cir. Review of Ruling in "Sudunagunta" --------------------------------------------------------------- Defendants NantKwest, Inc., et al., filed an appeal from a court ruling in the lawsuit titled Sunil Sudunagunta, et al. v. NantKwest, Inc., et al., Case No. 2:16-cv-01947-MWF-JEM, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit seeks to recover damages caused by the Defendants' alleged violations of the federal securities laws, and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, the Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that: NantKwest's financial statements contained errors related to stock-based awards to the Company's Chief Executive Officer and Executive Chairman defendant Patrick Soon-Shiong; NantKwest's financial statements contained errors related to build-to-suit lease accounting related to one of the Company's research and development and good manufacturing practices facilities; the Company lacked effective internal financial controls; and as a result of the foregoing, NantKwest's public statements were materially false and misleading. The appellate case is captioned as Sunil Sudunagunta, et al. v. NantKwest, Inc., et al., Case No. 18-80101, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent SUNIL SUDUNAGUNTA, Individually and on Behalf of All Others Similarly Situated, is represented by: Patrick M. Dahlstrom, Esq. Omar Jafri, Esq. Joshua B. Silverman, Esq. POMERANTZ LLP 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 E-mail: pdahlstrom@pomlaw.com ojafri@pomlaw.com jbsilverman@pomlaw.com Plaintiff-Respondents DONALD HU, Lead Plaintiff; and BRAYTON LI, Lead Plaintiff, are represented by: Robert Vincent Prongay, Esq. Kevin F. Ruf, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 E-mail: rprongay@glancylaw.com kruf@glancylaw.com Defendants-Petitioners NANTKWEST, INC., PATRICK SOON-SHIONG, RICHARD GOMBERG, BARRY J. SIMON, STEVE GORLIN, MICHAEL D. BLASZYK, HENRY JI, RICHARD KUSSEROW, JOHN T. POTTS, Jr., ROBERT ROSEN and JOHN C. THOMAS, Jr., are represented by: Boris Feldman, Esq. WILSON SONSINI GOODRICH & ROSATI, PC 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 E-mail: boris.feldman@wsgr.com - and - Gideon A. Schor, Esq. WILSON SONSINI GOODRICH & ROSATI, PC 1301 Avenue of the Americas, 40th Floor New York, NY 10019 Telephone: (212) 999-5800 E-mail: gschor@wsgr.com NATURA MIRACLES: Miller Sues Over Illegal SMS Ad Blasts ------------------------------------------------------- Dana Miller, individually and on behalf of all others similarly situated, Plaintiff, v. Natura Miracles Inc., Defendant, Case No. 18-CV-61987, (S.D. Fla., August 22, 2018), seeks injunctive relief to halt illegally sent SMS blasts, statutory damages and any other available legal or equitable remedies resulting from violations of the Telephone Consumer Protection Act. Natura is a research, development, production and marketing company for natural health and wellness products and it uses text messages as a means of marketing its business and promoting sales events to potential customers. These unsolicited text messages cause invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass and conversion, the complaint asserts. [BN] Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 Email: mhiraldo@hiraldolaw.com NEVRO CORP: Saxena White Files Securities Fraud Class Action ------------------------------------------------------------ Saxena White P.A. has filed a securities fraud class action lawsuit in the United States District Court for the Northern District of California against Nevro Corp. ("Nevro" or the "Company") (NYSE:NVRO) on behalf of investors who purchased or otherwise acquired the common stock of the Company between January 8, 2018 and July 12, 2018, inclusive (the "Class Period"). Nevro is a global medical device company focused on providing treatment for patients suffering from debilitating chronic pain. Nevro's primary products are its Senza spinal cord stimulation systems, neuromodulation devices that deliver the Company's HF10 therapy. The Complaint asserts claims for violations of the Securities Exchange Act of 1934. The Complaint alleges that, throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and the proprietary nature of the Company's principal products. Specifically, Defendants allegedly made false and/or misleading statements and/or failed to disclose that: (1) that Nevro had engaged in a fraudulent scheme by using protected confidential and proprietary trade secrets and stolen documents from its competitors to develop and enhance the Company's Senza systems; (2) that as a result, the Company's Senza systems were not "novel" or "proprietary;" (3) that these practices caused the Company to be vulnerable to increased litigation expenses and adverse legal and regulatory action; (4) that, as a result, Nevro's U.S. sales growth was not sustainable; and (5) that, as a result of the foregoing, Defendants' statements about Nevro's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. You may obtain a copy of the Complaint and join the class action at www.saxenawhite.com. If you purchased Nevro shares between January 8, 2018 and July 12, 2018, you may contact Lester Hooker (lhooker@saxenawhite.com) at Saxena White P.A. to discuss your rights and interests. If you purchased Nevro stock during the Class Period of January 8, 2018 through July 12, 2018 and wish to apply to be the lead plaintiff in this action, a motion on your behalf must be filed with the Court by no later than October 22, 2018. You may contact Saxena White P.A. to discuss your rights regarding the appointment of lead plaintiff and your interest in the class action. Please note that you may also retain counsel of your choice and need not take any action at this time to be a class member. Lester R. Hooker, Esq. Saxena White P.A. 150 East Palmetto Park Road, Suite 600 Boca Raton, FL 33432 Telephone: (561) 206-6708 Fax: (866) 290-1291 Email: lhooker@saxenawhite.com [GN] NEW ORLEANS REGIONAL: Jones et al. Seek to Certify Employees Class ------------------------------------------------------------------ In the lawsuit styled BILL JONES, ET AL., the PLAINTIFF, v. NEW ORLEANS REGIONAL PHYSICIAN HOSPITAL ORGANIZATION, INC., the DEFENDANTS, Case No. 2:17-cv-08817-JCZ-DEK (E.D. La.), Bill Jones, Jennifer Branch and Laura Romero ask the Court for an order: 1. conditionally certifying this action as a collective action on behalf of: "all individuals employed by New Orleans Regional Physician Hospital Organization, Inc. at any point from September 8, 2014, to the present in the Network Development or Pharmacy Operations Departments and held the positions of Ancillary Contracting Specialist, Contracting Specialist, Contracting Specialist – Hospitals, Operations Specialist, Pharmacy Part D Specialist, Physician Contracting Specialist, Project Coordinator, Provider Relations Representatives, Regulatory Specialist, Senior Contracting Specialist, and Senior Provider Relations Representative, and worked overtime for which he/she was not compensated"; 3. ordering Defendant to produce, within 15 days of the Court's granting of conditional certification, in electronic form, the full names, last known address, telephone numbers, including cell phone numbers, and e-mail addresses of all current or former employees who were employed by New Orleans Regional Physician Hospital Organization, Inc. at any point from June 3, 2015 to the present in the Network Development or Pharmacy Operations Divisions and held the positions of Ancillary Contracting Representative, Ancillary Contracting Specialist, Contracting Specialist, Contracting Specialist - Hospitals, Hospital Contracting Representative, Lead Contract Auditor, Operations Specialist, Pharmacy Part D Specialist, Physician Contracting Specialist, Project Coordinator, Provider Affiliate Specialist, Provider Relations Representatives, Regulatory Specialist, Senior Contracting Specialist, Senior Hospital Contracting Representative, and Senior Provider Relations Representative; 4. authorizing Plaintiffs to send notice along with a consent to opt-in form to the members of the putative collective via regular mail, and email; 5. authorizing Plaintiffs to send notice to the members of the putative collective via text message as follows: "If you worked for PHN in its Network Development or Pharmacy Departments at any time since June 3, 2015, as an exempt employee, you may be entitled to join a lawsuit claiming unpaid overtime pay. For additional information about the case, including how to join, please call the employees' attorney at 985-590-5026 or 985-898-6368"; 6. directing Defendant to post notice in Defendant's Metairie Office in a location easily visible to current employees; 7. directing that all collection members shall return to the third party administrator or Plaintiff's counsel a fully executed consent to opt-in form within 60 days of the date in which notice is mailed to members of the collective, and that any opt-ins who seek to join the action after that deadline must establish good cause for their delay; and 8. directing the parties to file a joint motion to approve a third party administrator with the Court within 14 days of the order conditionally certifying the collective action. Attorneys for Plaintiffs: Chad A. Danenhower, Esq. DANENHOWER LAW FIRM, LLC 212 Park Place Covington, La 70433 Telephone: (985) 590 5026 E-mail: chad.danenhower@danenhowerlaw.com - and - Dale E. Williams, Esq. LAW OFFICE OF DALE E. WILLIAMS 212 Park Place Covington, LA 70433 Telephone: (985) 898 6368 E-mail: dale@daleslaw.com NIELSEN HOLDINGS: Pomerantz Law Files Class Action -------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against Nielsen Holdings plc ("Nielsen" or the "Company") (NYSE: NLSN) and certain of its officers and directors. The class action, filed in United States District Court, Southern District of New York, and docketed under index 18-cv-07677, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired the common stock of Nielsen Holdings plc ("Nielsen" or the "Company") between February 8, 2018 and July 25, 2018, both dates inclusive (the "Class Period"), against Nielsen and certain of its officers and/or directors for violations of the Securities Exchange Act of 1934 (the "Exchange Act"), including the Company's Chief Executive Officer ("CEO") and Executive Chairman of the Board of Directors, Dwight Mitchell Barns ("Barns"), and Chief Financial Officer ("CFO"), Jamere Jackson ("Jackson"). If you are a shareholder who purchased or acquired common shares of Nielsen between February 8, 2018, and July 25, 2018, both dates inclusive, you have until October 9, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Nielsen describes itself as a leading global performance management company providing its clients a comprehensive understanding of what consumers watch and what they buy and how those choices intersect. The Company divides its business client offerings into two major offering groups, including its "Buy" offering group of products and services and its "Watch" offering segments of products and services. The Company provides critical media and marketing information, analytics, and manufacturer and retailer expertise about what and where consumers buy ("Buy") and what consumers read, "Watch" and listen to (consumer interaction across the television, radio, print, online, digital, mobile viewing and listening platforms). The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Nielsen recklessly disregarded its readiness for and the true risks of privacy-related regulations and policies, including the European General Data Protection Regulation ("GDPR"), on its current and future financial and growth prospects; (ii) Nielsen's financial performance was far more dependent on Facebook and other third-party large data set providers than previously disclosed and privacy policy changes affected the scope and terms of access Nielsen would have to third-party data; (iii) access to Facebook and other third-party provider data was becoming increasingly restricted for Nielsen and Nielsen clients; and (iv) as a result, Nielsen's public statements were materially false and misleading at all relevant times. On July 26, 2018, Nielsen shocked investors as it published its financial results for second quarter 2018 announcing that it had missed revenue and earnings targets and was relieving its forecast of $800 million free cash flow for 2018, that the GDPR was affecting partners and clients, and that CEO Barns would retire at the end of 2018. July 26, 2018, second quarter 2018 press release also issued sharp revisions to EBITDA margin growth, a $0.56 reduction of projected net income and a $250 million reduction free cash flow guidance, which was sharply below guidance issued in April 2018 after the first quarter 2018 financial results. As a result of these alarming disclosures and significant reduction in the Company's outlook for free cash flow, Nielsen's stock price declined more than 25% from a close of $29.57 per share on July 25, 2018 to a close of $22.11 per share on July 26, 2018, on a massive volume of 38 million shares traded. Robert S. Willoughby, Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Email: rswilloughby@pomlaw.com [GN] NIGHTGALLERIE LLC: Hanna Hits Missed Breaks, Unpaid OT, Paystubs ---------------------------------------------------------------- Rosalie Hanna, on behalf of herself and all others similarly situated, Plaintiff, v. Nightgallerie, LLC, Deborah Jackman (a/k/a Deborah Lynn Jackson) and Does 1 through 50, inclusive, Defendants, Case No. CG-8-569095 (Cal. Super., August 22, 2018), seeks redress for failure to provide meal and rest breaks, or provide compensation for such, as required by California Labor Code and applicable Wage Orders; for illegal deductions from gratuities owed; for failure to timely pay employees for all hours worked all wages owed at termination of employment; for failure to pay overtime wages; for failure to maintain and provide accurate wage statements; and and for illegally sharing employees' fingerprints with a third party. Defendants operate as Mezzanine SF Nightclub in San Francisco, California where Hanna worked as an hourly-paid bartender. She tendered her resignation on October 24, 2017. [BN] Plaintiff is represented by: Robin G. Workman, Esq. Rachel Davey, Esq. WORKMAN LAW FIRM, PC 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Email: robin@workmanlawpc.com rachel@workmanlawpc.com P.F. CHANG'S: Motion for Conditional Certification Granted in Part ------------------------------------------------------------------ In the lawsuit styled JACQUELINE ESRY, individually and on behalf of all others similarly situated, PLAINTIFF, v. P.F. CHANG'S CHINA BISTRO, INC., d/b/a P.F. CHANG'S CHINA BISTRO, the DEFENDANT, Case No. 4:18-cv-00156-JLH (E.D. Ark.), the Hon. Judge J. Leon Holmes entered an order on August 13, 2018, granting in part and denying in part Plaintiff's motion for conditional certification. The Court explained that on the issue of whether Esry is similarly situated to other employees, the only evidence that Esry submits is her own declaration. Esry describes her work and the work of other servers, but she says nothing about tipped employees other than servers, such as bartenders. Furthermore, she claims no specific knowledge about servers in locations other than in Little Rock, except to say that she was informed by the defendant that the hourly rate of $2.63 was paid to all servers employed by the defendant. P.F. Chang's has submitted evidence that there is no company-wide policy or practice that servers will spend any particular amount of time or percentage of time on non-tipped work. According to evidence submitted by P.F. Chang's, the amount of time that tipped employees spend on non-tipped work varies from location to location because busier restaurants tend to use more bussers to clear and set tables and to bring dirty dishes to the kitchen than do the slower restaurants. The Court held that Esry has met the minimal requirements of representing a collective action for servers at the Little Rock location. She has not, however, shown that she is similarly situated to non-servers or servers in other locations. Esry seeks to represent a class of employees dating back to February 23, 2015, three years before the commencement of this action. While the Court will permit her to seek to represent such a class, the notice should include "a statement explaining that claims of employees who have not worked for P.F. Chang's within the past two years may be time-barred." Resendiz-Ramirez v. P&H Forestry, LLC, 515 F. Supp. 937, 944 n.9 (W.D. Ark. 2007). Esry proposes a 90-day opt-in period, which P.F. Chang's argues is excessive. Sixty days is sufficient time to notify potential class members and allow them to decide whether to opt-in. See Tegtmeier v. P.J. Iowa, L.C., 208 F. Supp. 3d 1012, 1025 (S.D. Iowa 2016). Notice may be sent by U.S. mail. Esry also requests authorization to follow-up with cards and text messages or e-mail messages beginning thirty days after the opt-in period begins to potential plaintiffs who have not responded. One reminder notice may be sent by postcard 30 days after the initial notice has been mailed to potential class members who have not responded. Notice may be sent electronically to any potential class member whose notice is returned for insufficient address. The Court will not require P.F. Chang's to post a notice in the workplace. P.F. Chang's objects to including the caption and styling of the case on the notice. That objection is overruled. P.F. Chang's must provide plaintiff's counsel in electronically readable or importable form the names and addresses of all persons who were employed at the P.F. Chang's location in Little Rock as servers from February 23, 2015, to date, as well as the e-mail address or cell phone number for any potential class member whose notice is returned for insufficient address. Names and addresses must be provided within 14 days from the entry of this Opinion and Order. Before sending any notice, plaintiff's counsel must submit the form of notice to defense counsel who should review it to verify that the form complies with this Order. PARISH OF PLAQUEMINES: Underpays Paramedics, Babin et al. Allege ---------------------------------------------------------------- KEITH BABIN; KEVIN BURGE; JOSHUA DISMUKES, and BARBARA TATE, Plaintiffs v. THE PARISH OF PLAQUEMINES, Defendant, Case No. 2:18-cv-07378 (E.D. La., Aug. 3, 2018) is an action against the Defendant to recover unpaid wages, overtime compensation, attorneys' fees and costs. The Plaintiffs were employed by the Defendant as paramedics. Plaquemines Parish is a parish located in the U.S. state of Louisiana. The parish seat is Pointe a la Hache. The parish was formed in 1807. [BN] The Plaintiff is represented by: Charles J. Stiegler, Esq. STIEGLER LAW FIRM LLC 318 Harrison Ave., Suite #104 New Orleans, La. 70124 Telephone: (504) 267-0777 Facsimile: (504) 513-3084 E-mail: Charles@StieglerLawFirm.com - and - Joseph G. Kopfler (TA), Esq. KOPFLER & HERMANN, ATTORNEYS AT LAW 7910 Main Street, Suite #400 Houma, LA 70360 Telephone: (985) 805-8089 Facsimile: (985) 851-4521 E-mail: Joe@KopflerHermann.com PERKINS & MARIE: Violates Disabilities Act, Slivak Suit Claims -------------------------------------------------------------- Perkins & Marie Callender's, LLC, and RJ Waters & Associates, Inc. are facing a class action lawsuit under the Americans with Disabilities Act of 1990. The case is captioned as JESSICA SLIVAK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. PERKINS & MARIE CALLENDER'S, LLC, and RJ WATERS & ASSOCIATES, INC. doing business as: WATERS RETAIL GROUP, Case No. 2:18-cv-03628-GJP (E.D. Pa., August 24, 2018). Perkins & Marie Callender's, LLC, owns and operates a chain of restaurants and bakeries in the United States and Canada. The Company offers various dishes, breakfast, lunch, and dinner and snacks; and sweet starts, egg omelets, platters, salads and soups, starters, bakery desserts, and more. The Company also manufactures pies, pancake mixes, cookie dough, and muffin batter for in-store bakeries and third-party customers. R.J. Waters & Associates, Inc., provides commercial real estate development, management, leasing/landlord representation, and brokerage services. R.J. manages and leases retail shopping centers (for tenants) in Pennsylvania, Virginia, Maryland, Delaware, and New Jersey. The Company was founded in 1985 and is based in Kennett Square, Pennsylvania.[BN] The Plaintiff is represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 Facsimile: (215) 364-5029 E-mail: erayz@kalraylaw.com PHILLY TRAMPOLINE: Faces Slivak Suit Alleging ADA Violation ----------------------------------------------------------- A class action lawsuit has been filed against Philly Trampoline Parks, LLC, 10551 Decatur Road Investments, L.P., and Decatur Road Corporation. The case is entitled JESSICA SLIVAK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. PHILLY TRAMPOLINE PARKS, LLC doing business as: SKY ZONE and 10551 DECATUR ROAD INVESTMENTS, L.P., Case No. 2:18-cv-03625-TJS (E.D. Pa., August 24, 2018). The Plaintiff alleges violations of The Americans with Disabilities Act of 1990. Philly Trampoline Parks, LLC, doing business as Sky Zone, is domestic limited liability company with a registered address in Chalfont, Pennsylvania. Sky Zone is a chain of indoor family entertainment centers that features numerous connected trampolines. 10551 Decatur Road Investments L.P. is a Pennsylvania limited partnership with a business address in Huntingdon Valley, Pennsylvania.[BN] The Plaintiff is represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 Facsimile: (215) 364-5029 E-mail: erayz@kalraylaw.com PILGRIM'S PRIDE: Bid for Reconsideration in Hogan Suit Pending -------------------------------------------------------------- Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended July 1, 2018, that the plaintiff's motion for reconsideration on the court's dismissal of the putative class action lawsuit by Patrick Hogan is currently pending. On October 10, 2016, Patrick Hogan, acting on behalf of himself and a putative class of persons who purchased shares of Pilgrim's Pride Corporation's (PPC's) stock between February 21, 2014 and October 6, 2016, filed a class action complaint in the U.S. District Court for the District of Colorado against PPC and its named executive officers. The complaint alleges, among other things, that PPC's SEC filings contained statements that were rendered materially false and misleading by PPC's failure to disclose that (i) the Company colluded with several of its industry peers to fix prices in the broiler-chicken market as alleged in the In re Broiler Chicken Antitrust Litigation, (ii) its conduct constituted a violation of federal antitrust laws, (iii) PPC's revenues during the class period were the result of illegal conduct and (iv) that PPC lacked effective internal control over financial reporting. The complaint also states that PPC's industry was anticompetitive. On April 4, 2017, the Court appointed another stockholder, George James Fuller, as lead plaintiff. On May 11, 2017, the plaintiff filed an amended complaint, which extended the end date of the putative class period to November 17, 2017. PPC and the other defendants moved to dismiss on June 12, 2017, and the plaintiff filed its opposition on July 12, 2017. PPC and the other defendants filed their reply on August 1, 2017. On March 14, 2018, the Court dismissed the plaintiff's complaint without prejudice and issued final judgment in favor of PPC and the other defendants. On April 11, 2018, the plaintiff moved for reconsideration of the Court's decision and for permission to file a Second Amended Complaint. PPC and the other defendants filed a response to the plaintiff's motion on April 25, 2018. The plaintiff's motion for reconsideration is currently pending. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Bid to Transfer Associated Wholesale Suit Pending ------------------------------------------------------------------ Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended July 1, 2018, that the motion to transfer the case entitled, Associated Wholesale Grocers, Inc. v. Koch Foods, Inc., et al., is pending. Between September 2, 2016 and October 13, 2016, a series of purported federal class action lawsuits styled as In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637 were brought against Pilgrim's Pride Corporation (PPC) and 13 other producers by and on behalf of direct and indirect purchasers of broiler chickens alleging violations of federal and state antitrust and unfair competition laws. The complaints, which were filed with the U.S. District Court for the Northern District of Illinois, seek, among other relief, treble damages for an alleged conspiracy among defendants to reduce output and increase prices of broiler chickens from the period of January 2008 to the present. The class plaintiffs have filed three consolidated amended complaints: one on behalf of direct purchasers and two on behalf of distinct groups of indirect purchasers. The defendants, including PPC, filed motions to dismiss these actions. On November 20, 2017, the court denied all pending motions to dismiss with the exception of certain state-law claims by indirect purchasers that were dismissed or narrowed in scope. Discovery is proceeding and is currently scheduled to be complete by June 13, 2019. Between December 2017 and July 2018 eight individual direct action complaints (Affiliated Foods, Inc., et al., v. Claxton Poultry Farms, Inc., et al., No. 1:17-cv-08850; Winn Dixie Stores, Inc. v. Koch Foods, Inc., No. 1:18-cv-00245; Sysco Corp. v. Tyson Foods Inc., et al; No. 1:18-cv-00700; US Foods Inc. v. Tyson Foods Inc., et al; No. 1:18-cv-00702; Action Meat Distributors, Inc., et al., v. Claxton Poultry Farms, Inc., et al., No. 1:18-cv-03471; Jetro Holdings, LLC, v. Tyson Foods, Inc., et al., No. 1:18-cv-04000; Associated Grocers of the South, Inc., et al., v. Tyson Foods, Inc., et al., No. 1:18-cv-4616; and The Kroger Co., et al., v. Tyson Foods, Inc., et al., No. 1:18-cv-04534) were filed with the U.S. District Court for the Northern District of Illinois by individual direct purchaser entities, the allegations of which largely mirror those in the class action complaints. The Court's scheduling order currently requires the substantial completion of document discovery for the class cases by July 18, 2018, with fact discovery ending on June 13, 2019, class certification briefing and expert reports proceeding from July 15, 2019 to March 16, 2020 and summary judgment to proceed 60 days after the Court rules on motions for class certification. The Court has ordered the parties to coordinate scheduling of the direct action complaints with the class complaints with any necessary modifications to reflect time of filing. Discovery will be consolidated. In May 2018, an individual direct action complaint was filed with the U.S. District Court for the District of Kansas (Associated Wholesale Grocers, Inc. v. Koch Foods, Inc., et al., No. 2:18-cv-02258), the allegations of which largely mirror those in the class action complaints. The defendants, including PPC, filed a motion to transfer this action to the U.S. District Court for the Northern District of Illinois. This motion was fully briefed on July 27, 2018. Plaintiff Associated Wholesale Grocers has filed a Memorandum in Opposition to the Joint Motion to Transfer Case. Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PILGRIM'S PRIDE: Still Defends Broiler Chicken Grower Suit ---------------------------------------------------------- Pilgrim's Pride Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended July 1, 2018, that the company continues to defend itself in the case entitled, In re Broiler Chicken Grower Litigation. On January 27, 2017, a purported class action on behalf of broiler chicken farmers was brought against Pilgrim's Pride Corporation (PPC) and four other producers in the Eastern District of Oklahoma, alleging, among other things, a conspiracy to reduce competition for grower services and depress the price paid to growers. The plaintiffs allege violations of the Sherman Act and the Packers and Stockyards Act and seek, among other relief, treble damages. The complaint was consolidated with a subsequently filed consolidated amended class action complaint styled as In re Broiler Chicken Grower Litigation, Case No. CIV-17-033-RJS (the "Grower Litigation"). The defendants (including PPC) jointly moved to dismiss the consolidated amended complaint on September 9, 2017. The Court initially held oral argument on January 19, 2018, during which it considered and granted only motions from certain other defendants, challenging jurisdiction. Oral argument on the remaining pending motions in the Oklahoma court occurred on April 20, 2018. Rulings on the motion are pending. Following the Oklahoma court's dismissal of certain defendants in January 2018, the plaintiffs filed a separate complaint in the U.S. District Court for the District of North Carolina, consisting of the same allegations but strictly against those defendants previously dismissed by the Oklahoma court (the "North Carolina Action"). The plaintiffs sought transfer and consolidation of the North Carolina Action with the Grower Litigation in Oklahoma from the Judicial Panel on Multi-District Litigation ("JPML"). The JPML has scheduled oral argument on the motion for May 31, 2018. In addition, on March 12, 2018, the Northern District of Texas, Fort Worth Division ("Bankruptcy Court") enjoined the plaintiffs from litigating the Grower Litigation complaint as pled against the Company because allegations in the consolidated complaint violate the confirmation order relating to the Company’'s bankruptcy proceedings in 2008 and 2009. Specifically, the 2009 bankruptcy confirmation order bars any claims against the Company based on conduct occurring before December 28, 2009. On March 13, 2018, Pilgrim's notified the trial court of the Bankruptcy Court's injunction. Pilgrim's Pride said "To date, the plaintiffs have not amended the consolidated complaint to comply with the Bankruptcy Court's injunction order or the confirmation order." Pilgrim's Pride Corporation engages in the production, processing, marketing, and distribution of fresh, frozen, and value-added chicken products in the United States, the United Kingdom, Europe, and Mexico. The company was founded in 1946 and is headquartered in Greeley, Colorado. Pilgrim's Pride Corporation is a subsidiary of JBS S.A. PINNACLE FOODS: Wolf Popper Files Class Action Lawsuit ------------------------------------------------------ Wolf Popper LLP has filed a class action lawsuit against Pinnacle Foods Inc. (NASDAQ: PF) and members of its Board, in the U.S. District Court for the District of Jersey (2:18-cv-12501), on behalf of current public stockholders of Pinnacle, seeking to enjoin the consummation of a proposed transaction, or, in the event it is consummated, to recover damages resulting from defendants' wrongdoing. This action alleges claims for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. If you are a member of the Class, you may file a motion no later than October 22, 2018 to be appointed lead plaintiff. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Class members are urged to contact Wolf Popper to discuss their rights. The action stems from a proposed transaction announced on June 27, 2018, pursuant to which Pinnacle will be acquired by Conagra Brands, Inc. Under the terms of the deal, Pinnacle shareholders will receive $43.11 per share in cash and 0.6494 shares of Conagra common stock for each share of Pinnacle held. On July 25, 2018, with respect to the proposed transaction, defendants filed a preliminary proxy statement on a Form S-4 which contained materially false and/or misleading information concerning, among other things, the analyses performed by the respective financial advisors of Pinnacle, in support of their fairness opinions, including certain of the projections relied upon in performing these analyses. Carl L. Stine, Esq. Telephone.: 877.370.7703 Fax: 877.370.7704 Website: www.wolfpopper.com Email: cstine@wolfpopper.com [GN] POST UNIVERSITY: Davis Suit Alleges TCPA Violation -------------------------------------------------- Melanie Davis, on behalf of herself and all others similarly situated v. Post University, Inc., Case No. 9:18-cv-81004 (S.D. Fla., July 30, 2018), is brought against the Defendant for violation of the Telephone Consumer Protection Act. This action arises out of the Defendant's practice of placing telemarketing calls to individuals in the absence of prior express written consent, and in the absence of any "do not call" policy or training, and without honoring the national "do not call" list. The Plaintiff is a citizen and resident of Boynton Beach, Florida. The Defendant is a Delaware corporation headquartered at 800 Country Club Rd., Waterbury, CT 06708. [BN] The Plaintiff is represented by: Bradford R. Sohn, Esq. THE BRAD SOHN LAW FIRM PLLC 2600 South Douglas Rd, Suite 1007 Coral Gables, FL 33134 Tel: (786) 708-9750 Fax: (305) 397-0650 E-mail: brad@sohn.com PURDUE PHARMA: 2 Law Firms Ally in Class Action Against Pharma Cos. ------------------------------------------------------------------- Zach Schlein, writing for Daily Business Review, reports that two law firms have combined resources to file a putative class action lawsuit accusing several big pharmaceutical companies of misconduct in Florida. In a suit filed on Augst 21 in the U.S. District Court of Florida, named plaintiff and Florida resident Michael Konig lists several large corporations, including Connecticut-based Purdue Pharma Inc., Johnson & Johnson and Janssen Pharmaceuticals Inc. as defendants. He accuses them of misleading patients, doctors, insurers and others regarding the addictive nature of opioid medications in order to turn a profit. The suit argues that the opioid epidemic has caused severe health consequences on a mass scale, in turn prompting the rates of insurance premiums, deductibles and co-pays to rise across the health insurance market. According to Ashley Keller, Esq. -- ack@kellerlenkner.com -- founding partner at Chicago litigation firm Keller Lenkner, the opioid epidemic wreaking havoc in Florida and other states across the U.S. was caused by nothing less than total corporate greed on the part of the pharmaceutical entities. "To be crystal clear, we believe that [Big Pharma] deliberately misrepresented the properties of opioids so they could put dollars in their shareholders' pockets," Keller told the Daily Business Review. "This is a systematic, across-the-board misrepresentation to the entire marketplace. On a wholesale basis they misrepresented the addictive properties associated with opioids . . . . because they knew they could pop a lot more pills into the market place. Those allegations are well-documented, and in public record." Fort Lauderdale-based attorney Jordan A. Shaw, Esq. -- jshaw@zpllp.com -- one of the lawyers who filed the suit, pointed to a June 14 NBC News article detailing much of the public information available on the defendant's dealings concerning the legal sale and propagation of opioids in Florida through the late 1990s and early 2000s. The article highlights an incident that saw Purdue admit in a federal courtroom in Virginia that it had previously misled doctors and consumers over OxyContin's potential to become habit-forming. "Five years after its legal battle with Florida officials, Purdue made a startling admission in federal court in Virginia. The company pleaded guilty in 2007 to felony charges of 'misbranding' OxyContin 'with the intent to defraud or mislead,'" the story reads. "The company paid $600 million in fines and other penalties. Among the deceptions it confessed to was directing its salespeople to tell doctors the drug was less addictive than other opioids." Shaw, who is a partner at Zebersky Payne, noted that Florida has been hit particularly hard by the opioid epidemic, both with regards to its human cost and the effect its had on the medical insurance market. "The Florida health care market is obviously one of the largest in the U.S.," Shaw said. "Opioids have become a business, which is terrible. You cant talk to a policeman or firefighter without them mentioning narcan [a medication designed at treating narcotics overdoses.] I think the Florida market has been hit as hard as -- if not harder than -- any other market in the country." Keller tells the Daily Business Review that Keller Lenkner is taking a "unique approach" to litigation concerning opioids and the companies that manufacture them. "We are the only ones who are trying to recover on the consumer side -- consumers are paying a lot more as a result of the defendant's misconduct," Keller said. "Health consequences get passed on through insurance premiums, deductibles and co-pay. This is our way to hold the defendants accountable to those undesirable trends." Keller adds that he and the attorneys at Keller Lenkner began to look at the opioid crisis through a different lens than what's generally expected, leading to the firm's suit in Florida as well as similar class actions in New York, Pennsylvania and other states. "The first thing that probably pops up is someone who has overdosed or lost their job, . . . . but they're not amenable to class-wide treatment because their harms are very individualized," Keller explained. "So every person who has been directly touched by the opioid epidemic has a unique set of damages, and that's the death knell of a proposed class action." To avoid this, the complaint filed by Keller and Shaw casts a wide net for a class aggrieved by the defendants, defining the plaintiffs as "all persons (including natural persons and entities) who purchased health insurance policies in Florida from 1996 through the present; and all persons who paid for any portion of employer-provided health insurance from 1996 through the present." Unlike wrongful death suits -- which inevitably involve unique circumstances between cases, and in turn make it difficult to show a commonality among proposed class members -- this complaint takes the insurance-cost route. "Damages are more ascertainable. . . . under our theory of the case that insurance companies are increasing costs on a wholesale basis," Keller said, noting that the plaintiff and unnamed potential class members are all paying higher insurance premiums. Because the opioid crisis hit South Florida so acutely, Shaw and Zebersky Payne were brought in by Keller Lenker to assist with filing and handling the case. Shaw was vocal about his hopes that this lawsuit would affect change in a way that previous, more individualized lawsuits have not thus far, describing class action suits as "quasi-legislative." "The thing about bringing something on a class-wide basis is that you can bring about change," Shaw said. "It's it's very clear that Big Pharma is not reacting to the deaths in these one-off cases. Wrongful death actions are not going to hurt them in their pocket, whereas the theory that Ashley's group has come up with allows people to come together and put pressure on Big Pharma." In a statement to the Daily Business Review, Janssen Pharmaceuticals Inc. said "opioid abuse and addiction are serious public health issues," and that the company is "committed to being part of the ongoing dialogue and to doing our part to find ways to address this crisis." "Our actions in the marketing and promotion of these medicines were appropriate and responsible," Janssen's statement reads. "The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated. In fact, our medications have some of the lowest rates of abuse among this class of medications." None of the other defendants named in the suit responded to requests for comment by deadline.[GN] PURDUE PHARMA: Faces Personal Injury Suit in in Penn. ----------------------------------------------------- A class action lawsuit has been filed against Purdue Pharma L.P., et al. The case is styled as JOHN DOE, BY AND THROUGH JANE DOE, HIS PARENT AND NATURAL GUARDIAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, v. PURDUE PHARMA L.P.; PURDUE PHARMA, INC.; THE PURDUE FREDERICK COMPANY, INC.; ALLERGAN PLC formerly known as: ACTAVIS PLC; WATSON PHARMACEUTICALS, INC.; WATSON LABORATORIES, INC.; ACTAVIS LLC; ACTAVIS PHARMA, INC. formerly known as: WATSON PHARMA, INC.; CEPHALON, INC.; TEVA PHARMACEUTICAL INDUSTRIES, LTD.; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; JANSSEN PHARMACEUTICALS, INC.; ORTHO- MCNEIL-JANSSEN PHARMACEUTICALS, INC.; JOHNSON & JOHNSON; NORAMCO, INC.; MALLINCKRODT, PLC; MALLINCKRODT, LLC; AMERISOURCEBERGEN DRUG CORPORATION; CARDINAL HEALTH, INC.; and MCKESSON CORPORATION, Case No. 2:18-cv-03637-MMB (E.D. Pa., August 24, 2018). The lawsuit arises from alleged personal injury. The nature of suit is stated as pharmaceutical personal injury product liability. Purdue Pharma L.P. is engaged in the research, development, production, and distribution of prescription and over-the-counter (prescription and non-prescription) medicines and healthcare products. The Company offers a portfolio of medical products in various categories, including prescription opioids, sleep, laxatives, antiseptics, and dietary supplement. The Company serves healthcare professionals, patients, and caregivers in the United States and internationally. The Defendants are pharmaceutical companies.[BN] The Plaintiff is represented by: John K. Weston, Esq. SACKS WESTON DIAMOND LLC 1845 Walnut Street, Suite 1600 Philadelphia, PA 19103 Telephone: (215) 925-8200 Facsimile: (267) 639-5422 E-mail: jweston@sackslaw.com PURDUE PHARMA: MSI Corp. Seeks Damages in RICO Class Action ----------------------------------------------------------- MSI Corporation individually and on behalf of all others similarly situated, Plaintiffs, v. Purdue Pharma L.P., Purdue Pharma Inc., the Purdue Frederick Company, Inc., Insys Therapeutics, Inc., Teva Pharmaceutical Industries, Ltd., Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Actavis PLC, Actavis, Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., McKesson Corporation, Cardinal Health, Inc., and AmerisourceBergen Corporation, Defendants, Case No. 18-cv-02194, (W.D. Pa., August 21, 2018), seeks compensatory and treble damages, prejudgment and post-judgment interest, costs of suit, including reasonable attorneys' fees as and such further and additional relief resulting from nuisance, negligence and in violation of the Racketeering Influenced and Corrupt Organizations Act. Defendants are pharmaceutical companies that are into developing, marketing, advertising promoting and selling prescription pharmaceuticals that allegedly contain opioids which have narcotic effects and may cause addiction. Plaintiff is represented by: Scott M. Hare, Esq. 1806 Frick Building 437 Grant Street Pittsburgh, PA 15219 Tel: (412) 338-8632 Email: scott@scottlawpgh.com - and - William S. Consovoy, Esq. Thomas R. McCarthy, Esq. CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Boulevard, Suite 700 Arlington, VA 22201 Tel: (703) 243-9423 Email: will@consovoymccarthy.com tom@consovoymccarthy.com - and - Michael H. Park, Esq. CONSOVOY MCCARTHY PARK PLLC 745 Fifth Avenue, Suite 500 New York, NY 10151 Tel: (212) 247-8006 Email: park@consovoymccarthy.com - and - Ashley Keller, Esq. Travis Lenkner, Esq. Seth Meyer, Esq. KELLER LENKNER LLC 150 N. Riverside Plaza, Suite 5100 Chicago, IL 60606 Tel: (312) 506-5641 Email: ack@kellerlenkner.com tdl@kellerlenkner.com sam@kellerlenkner.com PURE BEAUTY: Mendoza Labor Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------- Josue Arauz Mendoza, and all others similarly situated, Plaintiff, v. Pure Beauty Farms, Inc. and Enrique A. Yanes, Defendants, Case No. 18-CV- 23390, (S.D. Fla., August 21, 2018), requests double damages and reasonable attorney fees pursuant to the Fair Labor Standards Act for all overtime wages still owing along with court costs, interest and any other relief. Plaintiff worked for Defendants as a security guard from on or about February 26, 2018 through on or about August 12, 2018. [BN] Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: zabogado@aol.com QUEST DIAGNOSTICS: Mendez Sues Over Disabilities Act Violations --------------------------------------------------------------- A class action lawsuit has been filed against Quest Diagnostics Incorporated. The case is styled as Himelda Mendez, on behalf of herself and all others similarly situated v. Quest Diagnostics Incorporated, Case No. 1:18-cv-07731 (S.D.N.Y., August 24, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. Quest Diagnostics Incorporated provides diagnostic testing information and services in the United States and internationally. The Company's Diagnostic Information Services business segment develops and delivers diagnostic testing information and services, such as routine testing, non-routine and advanced clinical testing, gene-based and esoteric testing, anatomic pathology, and other diagnostic information services.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal RAMOS FURNITURE: Court Grants Default Judgment on Individual Claims ------------------------------------------------------------------- The United States District Court for the Eastern District of California grants default judgment on individual claims in the case captioned MARISOL TOPETE and ROSALBA MALDONADO, Plaintiffs, v. RAMOS FURNITURE; FURNITURE DEALS, INC.; DIMAS MANUEL, INC.; and DOES 1-100, inclusive, Defendants, Case No. 1:16-cv-00271-DAD-EPG (E.D. Cal.). The Plaintiffs move for dismissal of their class claims and entry of default judgment on their individual claims against Furniture Deals, Inc. dba Ramos Furniture (FDI) and Dimas Manuel, Inc. (Dimas) (Defendants). Default Judgment on Individual Claims Legal Standard Federal Rule of Civil Procedure 55(a) provides that default shall be entered when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise. Upon entry of default, the factual allegations of the complaint, except those relating to the amount of damages, are taken as true. Federal Rule of Civil Procedure 55(b) permits a court-ordered default judgment following the entry of default under Rule 55(a). A defendant's default does not automatically entitle the plaintiff to a court-ordered judgment. In making this determination, courts consider the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986). The Possibility of Prejudice to Plaintiff Here, the Plaintiffs would suffer prejudice if the Court declines to enter a default judgment. Defendant Dimas has not appeared in this action. And, while Defendant FDI has appeared, it has failed to meaningfully participate in this action. Counsel for FDI withdrew from representation because of the Defendant's failure to participate in this legal proceeding. Specifically, Isidro Ramos, a representative of FDI, stated that he was no longer willing and/or able to participate in litigation because he has experienced a relapse of a prior medical condition and is battling personal challenges that prevent him from being able to effectively attend mediation and respond to Plaintiff's discovery requests at this time. The Merits of the Claims and the Sufficiency of the Complaint The Plaintiff moves for a default judgment on five causes of action: (1) failure to provide meal periods, (2) failure to provide rest periods, (3) failure to pay overtime wages, (4) failure to provide wage statements, and (5) failure to pay waiting time penalties. The second and third Eitel factors address the merits and sufficiency of the claims pled in the complaint. Meal Periods Here, the Plaintiffs allege that it was the Defendants' systematic business policy and practice to work Plaintiffs more than five hours per day without the provision of an off-duty 30-minute meal period. The Plaintiffs did not waive their right to a 30-minute meal period by mutual consent, and did not receive premium wages. These allegations are sufficient to state a claim for violation of the meal period requirement under California law. Rest Period Here, the Plaintiffs allege that they were not provided ten-minute rest periods after working more than three and a half hours per day, and were not paid premium wages. These allegations are sufficient to state a claim for the violation of the Wage Order. Overtime Wages The Plaintiffs allege that during all relevant periods, they worked more than eight hours per day and forty hours per week, as well as more than twelve hours per day without payment of overtime wages. These allegations are sufficient to state a claim for the violation of Section 510 of the Labor Code and Section 3 of the Wage Order. Wage Statements Here, the Plaintiffs allege that Defendants failed to maintain and provide them the required pay records, and instead paid them in cash. Because of the Defendants' failure to provide the required records, the Plaintiffs cannot easily and readily ascertain the information required by Labor Code Section 226(a)(1) through (9) without reference to other documents and information. These allegations are sufficient to state a claim for the violation of Section 226. Waiting Time Penalties The Plaintiffs allege that they were involuntarily discharged, were constructively terminated, or voluntarily terminated their employment, and did not receive all pay due and owing at the time their employment ended. The Plaintiffs further allege that the Defendants' violations of law were committed knowingly and willfully with full knowledge of the required laws. These allegations are sufficient to state a claim for violation of Section 201 and Section 202, and for entitlement to waiting time penalties pursuant to Section 203. The second and third Eitel factors favor entry of default judgment. The Sum of Money at Stake Here, the Plaintiffs seeks an award of $51,640.94, which represents the statutory damages for unpaid wages, including interest thereon, and costs. Though the amount is not insignificant, it is reasonable in light of the Defendants' extended failure to provide the wages and statements to which Plaintiffs were entitled. Thus, the fourth Eitel factor slightly favors entry of default judgment. The Possibility of a Dispute Concerning the Material Facts The fifth Eitel factor examines the likelihood of dispute between the parties regarding the material facts surrounding the case. Here, there is little possibility of dispute in this case. Defendant Dimas has not appeared in this action, and does not contradict the well-pled allegations. Furthermore, while Defendant FDI did file an answer denying the allegations in the complaint, it withdrew from defending and taking part in this legal proceeding and has declined to oppose the instant motion for default judgment. Thus, the fifth Eitel factor too weighs in favor of granting default judgment. Whether Defendant's Default Was Due to Excusable Neglect The sixth Eitel factor considers whether a defendant's default may have resulted from excusable neglect. In the present action, there is no evidence that Defendants' failure to participate in the litigation is due to excusable neglect. Defendant Dimas was properly served with the summons and complaint, but has not appeared in this action. Defendant FDI has appeared in this action, but has now willfully chosen not to further defend this action. Thus, this factor weighs in favor of the entry of default judgment. Policy Favoring Decisions on the Merits The seventh Eitel factor requires consideration of the strong policy favoring decisions on the merits. Of course, the general rule is that default judgments are ordinarily disfavored and cases should be decided upon their merits whenever reasonably possible. The instant action is no different. Nevertheless, this factor alone cannot preclude the entry of default judgment. In summary, six of the seven factors weigh in favor of default judgment. In the aggregate, however, the factor favoring decisions on the merits is outweighed when compared with the other factors, which weigh in favor of granting default judgment. Accordingly, the Eitel factors weigh in favor of entering default judgment. Determination of the Terms of Judgment On a motion for a default judgment, the relief sought may not be different in kind from, or exceed in amount, what is demanded in the complaint. Furthermore, a plaintiff is required to prove all damages sought in the complaint. The court looks to plaintiff's declarations, calculations, and other documentation of damages in determining if the amount at stake is reasonable. Nevertheless, if the facts necessary to determine the damages are not contained in the complaint, or are legally insufficient, they will not be established by default. Accordingly, the Plaintiffs' motion for default judgment against Furniture Deals, Inc., dba Ramos Furniture and Dimas Manual, Inc. on the individual claims be granted. A full-text copy of the District Court's August 20, 2018 Findings and Recommendation is available at https://tinyurl.com/ycablt5j from Leagle.com. Marisol Topete, Plaintiff, represented by Andrew Butler Jones -- ajones@wagnerjones.com -- Wagner and Jones, Angela Elizabeth Martinez , Wagner, Jones, Kopfman & Artenian LLP, Daniel Myers Kopfman , Law Offices of Wagner Jones & Nicholas John Paul Wagner , Law Offices of Wagner & Jones. Rosalba Maldonado, Plaintiff, represented by Angela Elizabeth Martinez , Wagner, Jones, Kopfman & Artenian LLP, Daniel Myers Kopfman , Law Offices of Wagner Jones, Nicholas John Paul Wagner , Law Offices of Wagner & Jones & Andrew Butler Jones , Wagner and Jones. Ramos Furniture, Defendant, pro se. Furniture Deals, Inc., Defendant, pro se. REDSTONE FEDERAL: Court Narrows Claims in Caldwell FDCPA Suit ------------------------------------------------------------- In the case, DEMETRIUS D. CALDWELL, et al., Plaintiffs, v. REDSTONE FEDERAL CREDIT UNION, et al., Defendants, Case No. 2:15-cv-01923-JHE (N.D. Ala.), Magistrate Judge John H. England of the U.S. District Court for the Northern District of Alabama, Southern Division, granted in part and denied in part the motions for partial dismissal of Plaintiffs' Second Amended Class Action Complaint filed by Redstone and the Law Office of C. Howard Grisham. On Oct. 29, 2015, Plaintiffs Demetrius and Sabrina Caldwell initiated the action on behalf of themselves and a purported class against Redstone and Grisham, alleging five counts including a bankruptcy count of contempt for violating discharge injunctions (Count I) and a count for violations of the Fair Debt Collection Practices Act ("FDCPA")(Count II). The Defendants moved to dismiss the Caldwells' claims, and the Magistrate Judge granted those motions in part and denied them in part on Oct. 17, 2016, dismissing all but the two claims identified. On June 14, 2017, the Plaintiffs amended their complaint, adding six additional named Plaintiffs: Jane B. Locklin, Bart Reeves, Davis A. Mitchell, Jeremy D. Holland, Jessalyn Hooper, and Lorondo Brazelton. While the Amended Complaint alleged generally that the New Plaintiffs had been subjected to the Defendants' attempts to collect debts discharged in bankruptcy, it did not identify how the Defendants had done so. Both the Defendants moved to dismiss. Granting the Defendants' alternative motions for a more definite statement, the Magistarte Judge ordered the Plaintiffs to file an amended complaint which should include the factual basis for the New Plaintiffs' claims that the Defendants wrongfully attempted to collect the debts they discharged in bankruptcy. On Jan. 30, 2018, the Plaintiffs filed their Second Amended Complaint. Each of the New Plaintiffs filed a Chapter 7 bankruptcy petition in the Northern District of Alabama. Each owed money to Redstone and/or Grisham. Each Plaintiff received a discharge from the Bankruptcy Court. Nevertheless, Redstone -- which had been mailed a copy of the discharge orders in each case —used Grisham to attempt to collect the discharged debt. The Defendants contend the New Plaintiffs have failed, for various reasons, to articulate actionable violations of the discharge injunctions and the FDCPA. Magistrate Judge England, as preliminary matter, addressed the Plaintiffs' motions for leave to file sur-replies. In their first motion for leave to file a sur-reply, the Plaintiffs contend they should be allowed to file the proposed sur-reply attached to their motion, because Defendants have raised additional issues in their reply briefs, mischaracterized the holding of a case, and misinterpreted the law on lien enforcement. The Plaintiffs second motion for leave to file a sur-reply is based on their contention they feel compelled to respond to certain statements made in the Defendants' Responses to their supplemental response brief. He has considered the arguments the Plaintiffs offer for the necessity of sur-replies, and none are compelling. Therefore, he denied both motions. Turning to the motions to dismiss, the Magistrate Judge granted them to the extent that the claims of Plaintiffs Bart Reeves, Davis A. Mitchell, Jeremy D. Holland, Jessalyn Hooper, and Lorondo Brazelton are dismissed. Among other things, he finds that (i) the Plaintiffs cannot rely on the Defendants' lack of policies and procedures to establish a violation of the discharge injunction; (ii) the second amended complaint contains nothing to support that the Defendants violated Section 524 by failing to update Holland's credit report; (iii) Mitchell and Hooper have not alleged a violation of the discharge injunction; and (iv) the Plaintiffs have failed to demonstrate a violation of the discharge injunctions. The motions are also granted to the extent Plaintiff Jane B. Locklin's FDCPA claims based on the Defendants' 2015 revival of the judgment against her are dismissed. With no basis to conclude the revival of the judgment was wrongful, and thus that it was an attempt by Grisham to collect a debt it was not permitted to collect, Locklin cannot rely on the judgment's revival as a violation of Section 1692f(1). The motions are denied in all other respects. The Magistrate Judge directed the Defendants to answer the second amended complaint by Aug. 3, 2018. A full-text copy of the Court's July 20, 2018 Mmeorandum Opinion and Order is available at https://is.gd/ZrXYzD from Leagle.com. Demetrius D Caldwell, Sabrina B Caldwell & Jane B Locklin, Plaintiffs, represented by Lange Clark -- langeclark@langeclark.com -- LAW OFFICE OF LANGE CLARK PC, Robert Clois Keller , RUSSO WHITE & KELLER PC, Jeffrey P. Mauro -- jpmauro@baddleymauro.com -- BADDLEY & MAURO, LLC, John Parker Yates -- parker@baddleymauro.com -- BADDLEY & MAURO LLC & Thomas E. Baddley, Jr. -- tbaddley@baddleymauro.com -- BADDLEY & MAURO, LLC. Redstone Federal Credit Union, Defendant, represented by H. Harold Stephens -- hstephens@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP, John E. Goodman -- jgoodman@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP & Timothy P. Cummins -- tcummins@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP. Law Office of C Howard Grisham, Defendant, represented by Larry W. Harper -- lwh@phm-law.com -- PORTERFIELD HARPER MILLS & MOTLOW PA, Christie J. Estes, QCHC, Inc. & James Michael Cooper -- jmc@phm-law.com -- PORTERFIELD HARPER MILLS & MOTLOW PA. RENT-A-CENTER INC: "Hall" Class Certification Hearing on Sept. 19 ----------------------------------------------------------------- Rent-A-Center, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the hearing to consider a request for class certification in the consolidated Hall and DePalma suit has been scheduled for September 19, 2018. On December 23, 2016, a putative class action was filed against the company and certain of its former officers by Alan Hall in federal court in Sherman, Texas. The complaint alleges that the defendants violated Section 10(b) and/or Section 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by issuing false and misleading statements and omitting material facts regarding our business, including implementation of our point-of-sale system, operations and prospects during the period covered by the complaint. The complaint purports to be brought on behalf of all purchasers of the company's common stock from July 27, 2015 through October 10, 2016, and seeks damages in unspecified amounts and costs, fees, and expenses. A complaint filed by James DePalma also in Sherman, Texas alleging similar claims was consolidated by the court into the Hall matter. On October 19, 2017, the magistrate judge entered a recommendation to deny the company's motion to dismiss the complaint to the district judge who will decide the issue. The company filed its objections to the magistrate's recommendation on November 2, 2017. On December 14, 2017, the district judge issued an order adopting the magistrate's report and denying the company's motion to dismiss the complaint. Discovery in this matter has now commenced. A hearing on class certification is scheduled for September 19, 2018. Rent-A-Center said, "We continue to believe that these claims are without merit and intend to vigorously defend ourselves. However, we cannot assure you that we will be found to have no liability in this matter." Rent-A-Center, Inc., together with its subsidiaries, leases household durable goods to customers on a rent-to-own basis. The company operates through four segments: Core U.S., Acceptance Now, Mexico, and Franchising. Rent-A-Center, Inc. was founded in 1986 and is headquartered in Plano, Texas. RENT-A-CENTER INC: Blair Class Action Still Ongoing --------------------------------------------------- Rent-A-Center, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the Company continues to defend against the Blair v. Rent-A-Center, Inc. suit. This matter is a state-wide class action complaint originally filed on March 13, 2017 in the Federal District Court for the Northern District of California. The complaint alleges various claims, including that the company's cash sales and total rent to own prices exceed the pricing permitted under the Karnette Rental-Purchase Act. In addition, the plaintiffs allege that the company fail to give customers a fully executed rental agreement and that all such rental agreements that were issued to customers unsigned are void under the law. The plaintiffs are seeking statutory damages under the Karnette Rental-Purchase Act which range from $100 - $1,000 per violation, injunctive relief, and attorney's fees. Rent-A-Center said "We believe that these claims are without merit and intend to vigorously defend ourselves. However, we cannot assure you that we will be found to have no liability in this matter." Rent-A-Center, Inc., together with its subsidiaries, leases household durable goods to customers on a rent-to-own basis. The company operates through four segments: Core U.S., Acceptance Now, Mexico, and Franchising. Rent-A-Center, Inc. was founded in 1986 and is headquartered in Plano, Texas. RIDGE NATURAL: Bridges et al. Allege RICO Violation --------------------------------------------------- DANNA SUE BRIDGES; JOHN ROSS DOUGLASS, AS TRUSTEE OF THE DOUGLASS FAMILY TRUST; JOHN ROSS DOUGLASS; LEIGH ANN HOPPER A/K/A LEIGH ANN OBERHOLZER; LINDA D. JOHNSTON, AS TRUSTEE OF THE LINDA D. JOHNSTON REVOCABLE TRUST; DARRELL CURTIS PERKINS; and ROBIN SOHL RITCHIE, individually and on behalf of all others similarly situated, Plaintiffs v. RIDGE NATURAL RESOURCES, LLC; ESPUELA LAND AND MINERALS, LLC; PLAINS NATURAL RESOURCES, LLC; PUEBLO RESOURCES, L.L.C. F/K/A APACHE RESOURCES, L.L.C.; AGAVE NATURAL RESOURCES, L.L.C.; RANGE ROYALTY, LLC; CALVIN SMAJSTRLA; MATT MORGAN; CHRISTOPHER HAWA; AND WILSON HAWA, Defendants, Case No. 7:18-cv-00134-DC (W.D. Tex., August 3, 2018) is an action against the Defendants for alleged violation of the Racketeer Influenced and Corrupt Organization Act, among others. According to the complaint, the Defendants are engaged in a "Royalty-Lease" scam -- in which the Defendants set up shell companies disguised as legitimate drilling companies and fraudulently convinced a large group of royalty interest owners to purportedly convey a significant percentage of their royalty interests to these shell companies, under the guise of leasing their mineral interests. They did so through the use of deceptive trade names, by using form contracts that did not contain language required by Texas law for royalty deeds, by making false promises to drill for oil when they had no intention or ability to do so, and even by changing their names to conceal their true identities. Ridge Natural Resources, LLC is a Texas limited liability company doing business in Austin, Texas. The company is engaged in the business of leasing mineral rights. [BN] The Plaintiff is represented by: Josh Borsellino, Esq. BORSELLINO, P.C. 1020 Macon St., Suite 15 Fort Worth, TX 76102 Telephone: (817) 908-9861 Facsimile: (817) 394-2412 Email: josh@dfwcounsel.com RINGCENTRAL INC: Motion to Dismiss "Hurley" Lawsuit Still Pending ----------------------------------------------------------------- RingCentral, Inc.'s request to drop the second amended complaint of Joann Hurley over alleged violations of the federal Telephone Consumer Protection Act 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 November 17, 2017, Joann Hurley filed a second amended complaint in an ongoing putative class action lawsuit pending in the United States District Court for the Southern District of West Virginia, adding the Company as a named defendant and alleging that the Company and other defendants violated the TCPA and regulations promulgated thereunder by allegedly using an automated telephone dialing system to deliver prerecorded political messages to Hurley, an incumbent running for reelection, and others. Hurley alternatively alleges that the Company is vicariously liable for the actions of its co-defendants. Hurley seeks statutory, compensatory, consequential, incidental and punitive damages, costs, and attorneys' fees in connection with her claims. The Company was served with the second amended complaint on January 4, 2018. On March 23, 2018, the Company filed a motion to dismiss the complaint for lack of standing and failure to sufficiently state a claim on which relief may be granted. Hurley filed her opposition brief on April 6, 2018, and the Company filed its reply brief on April 13, 2018. The motion is currently pending before the court. The Company said, "It is too early to predict the outcome of this lawsuit. Based on the information known by the Company as of the date of this filing and the rules and regulations applicable to the preparation of the Company's condensed consolidated financial statements, it is not possible to provide an estimated amount of any such loss or range of loss that may occur." RingCentral, Inc., is a provider of software-as-a-service ("SaaS") solutions for the way employees communicate and collaborate in business. The Company enables convenient and effective communications for its customers, across all their locations, all their employees, all the time, thus, enabling them to be more productive and more responsive to their customers. RIPPLE LABS: Plaintiff Withdraws Class Action Lawsuit ----------------------------------------------------- Anvita M V, writing for AMB Crypto, reports that on August 22, United States District Court of California issued a statement stating that Plaintiff Ryan Coffey has voluntarily taken back the class-action lawsuit he filed against Ripple Labs, Inc., XRP II, LLC, an ancillary of Ripple, and Brad Garlinghouse, CEO of Ripple earlier this year. The Ryan Coffey case has been the 'talk of the town' for quite some time now. He initially filed the case on 3rd May 2018, alleging that the XRP tokens were fully generated even before the distribution began. The plaintiff further went on to accuse it as a "never-ending ICO." The lawsuit demanded remuneration for the plaintiff, awarding him for damages caused due to investing in XRP. It also demanded that XRP must be subject to the California Corporations Code. According to the Class Action Fairness Act, the defendants were able to remove class-action filed against them. However, on 1st August, the plaintiff filed a motion to remand. On 10th August, the motion filed by him was ruled over by the court. The court order read: Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DENIES plaintiff's motion." Recent developments in the case reveal that the plaintiff Ryan Coffey has voluntarily taken back the case, reasons for which are unknown. The court has officially dismissed the case as understood by the statement, which stated: "NOTICE IS HEREBY GIVEN that pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), named-plaintiff Ryan Coffey ("plaintiff"), by and through his counsel, voluntarily dismisses without prejudice the above-captioned action (the "Action"). This notice of dismissal is being filed with the Court before service by Defendant of either an answer or a motion for summary judgment. Plaintiff has not been offered and is not receiving any consideration for dismissing the Action." Twitter user Jeff tweeted: "Aw. I think a ruling would have been better." Dr. RedsoXRP a Twitterati commented: "In due time. However, Coffey being the "headliner" case and now choosing to end their trial says quite a bit. A win is a win is a win. No matter how big or small." Ripple has been in the news lately for several other reasons. In a recent Ask Me Anything [AMA] session, David Schwartz [CTO of Ripple], spoke about XRP's status as a security, Bitcoin [BTC], and the future of Ripple and XRP. During his session, he also spoke about Ripple's products, especially xRapid. He also clarified questions on the transfer of value through XRP.[GN] ROADRUNNER TRANSPORT: Bids to Nix Securities Class Lawsuit Pending ------------------------------------------------------------------ Motions to dismiss the complaint in the consolidated class action captioned In re Roadrunner Transportation Systems, Inc. Securities Litigation (Case No. 17-cv-00144) remains pending, according to Roadrunner Transportation Systems, 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. Following the Company's press release on January 30, 2017, three putative class actions were filed in the United States District Court for the Eastern District of Wisconsin against the Company and its former officers, Mark A. DiBlasi and Peter R. Armbruster. On May 19, 2017, the Court consolidated the actions under the caption In re Roadrunner Transportation Systems, Inc. Securities Litigation (Case No. 17-cv-00144), and appointed Public Employees' Retirement System as lead plaintiff. On March 12, 2018, the lead plaintiff filed a Consolidated Amended Complaint ("CAC") on behalf of a class of persons who purchased the Company's common stock between March 14, 2013 and January 30, 2017, inclusive. The CAC alleges (i) the Company and Messrs. DiBlasi and Armbruster violated Section 10(b) of the Exchange Act and Rule 10b-5, and (ii) Messrs. DiBlasi and Armbruster, the Company's former Chairman Scott Rued, HCI Equity Partners, L.L.C., and HCI Equity Management, L.P. violated Section 20(a) of the Exchange Act, by making or causing to be made materially false or misleading statements, or failing to disclose material facts, regarding (a) the accuracy of the Company's financial statements; (b) the Company's true earnings and expenses; (c) the effectiveness of the Company's disclosure controls and controls over financial reporting; (d) the true nature and depth of financial risk associated with the Company's tractor lease guaranty program; (e) the Company's leverage ratios and compliance with its credit facilities; and (f) the value of the goodwill the Company carried on its balance sheet. The CAC seeks certification as a class action, compensatory damages, and attorney's fees and costs. On July 23, 2018, the Company and the individual defendants filed motions to dismiss. The parties are currently engaged in mediation. Roadrunner Transportation Systems, Inc. is a leading asset-right transportation and asset-light logistics service provider offering a full suite of solutions. The company's Truckload Logistics ("TL") and Less-than-Truckload ("LTL") segments offer solutions including less-than-truckload, air and ground domestic and cross-border expedite, dry van and temperature controlled truckload logistics, and intermodal services. The company is based in Downers Grove, Illinois. ROSENTHAL MORGAN: Violates Fair Debt Collection Act, Bunch Claims ----------------------------------------------------------------- A class action lawsuit has been filed against Rosenthal Morgan and Thomas Inc. and John Does. The case is captioned as Krystal Bunch, individually and on behalf of all others similarly situated v. Rosenthal Morgan and Thomas Inc. and John Does, Case No. 1:18-cv-01306-WCG (E.D. Wisc., August 24, 2018). The lawsuit is brought over alleged violations of the Fair Debt Collection Practices Act. Headquartered in St. Louis, Missouri, Thomas Rosenthal, Morgan and Thomas, Inc., is a third-party debt collector.[BN] The Plaintiff is represented by: Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com RUSH STREET: Mendez Suit Assert ADA Breach ------------------------------------------ A class action lawsuit has been filed against Rush Street Gaming, LLC, doing business as Rivers Casino & Resort. The case is titled Himelda Mendez, on behalf of herself and all others similarly situated v. Rush Street Gaming, LLC doing business as: Rivers Casino & Resort, Case No. 1:18-cv-07727 (S.D.N.Y., August 24, 2018). The Plaintiff is brought over alleged violations of the Americans with Disabilities Act. Rush Street Gaming, LLC operates casinos in the United States. The company's facilities include slot and table games, and restaurants. It operates properties in Des Plaines, Philadelphia, Pittsburgh, and Schenectady. The company was founded in 2009 and is based in Chicago, Illinois.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal S&F COMMUNICATIONS: Snell Action Seeks Unpaid Overtime Under FLSA ----------------------------------------------------------------- Nathan Snell, on behalf of himself and other similarly situated individuals, Plaintiff, v. S&F Communications, Inc., Sophie Gabler and Fernando Huerta, Defendants, Case No. 18-cv-02438 (D. Minn., August 21, 2018), seeks to recover unpaid minimum wage, unpaid overtime compensation, liquidated damages, prejudgment interest and attorneys' fees under the Fair Labor Standards Act. S&F Communications provides cable installation services, installing video, phone and internet services for residential Comcast customers throughout Minnesota and parts of Wisconsin. Snell worked as a cable installation technician. He claims to have been misclassified as an independent contractor and denied overtime premium for hours worked over 40 in a workweek. [BN] Plaintiffs are represented by: M. William O'Brien, Esq. Emily L. Marshall, Esq. Mary M. Musilek, Esq. MILLER O'BRIEN JENSEN, P.A. Canadian Pacific Plaza, Suite 2400 120 South Sixth Street Minneapolis, MN 55402 Phone: (612) 333-5831 Fax: (612) 334-2613 Email: bobrien@mojlaw.com tlouris@mojlaw.com emarshall@mojlaw.com mmusilek@mojlaw.com SAFELITE FULFILLMENT: 9th Cir. Dismisses Appeal in Wage Suit ------------------------------------------------------------ The United States Court of Appeals, Ninth Circuit, dismissed for Lack of Jurisdiction the appeals case captioned YADIR A. ONTIVEROS, as an individual, and on behalf of all others similarly situated, Plaintiff-Appellee, v. SAFELITE FULFILLMENT, INC., a Delaware corporation, Defendant-Appellant, and SAFELITE GROUP, INC., et al., Defendants, No. 17-56644 (9th Cir.). In this class action, Plaintiff Yadir A. Ontiveros alleges that Defendant Safelite Fulfillment, Inc. violated California's wage and hour laws. The parties agreed to have the district court decide the merits of Plaintiff's claims first, on summary judgment, and then to litigate class certification. After the district court resolved several key issues in Plaintiff's favor, Defendant mailed to putative class members packets containing settlement agreements and encouraging putative class members to settle. The district court ruled that the communications were misleading, invalidated the releases contained in the settlement agreements, and ordered Defendant to send a curative notice to the individuals who had received the packets. The Defendant appeals. On de novo review, the Court dismisses the appeal for lack of jurisdiction. In the absence of a final judgment, the Court lacks jurisdiction to review the orders in question. No exception to the final judgment rule applies here because Defendant has not identified a right at stake that will be destroyed if not vindicated before trial. A full-text copy of the Ninth Circuit's August 13, 2018 Memorandum is available at https://tinyurl.com/ybg767j9 from Leagle.com. SCANA CORP: Bid to Dismiss Consolidated Securities Suit Pending --------------------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the motion to dismiss the case entitled, In re SCANA Corporation Securities Litigation, is pending. On September 27, 2017, a purported class action was filed against SCANA, Kevin B. Marsh, Jimmy E. Addison, and Stephen A. Byrne by plaintiff Robert L. Norman, on behalf of himself and all others similarly situated, in the District Court (the "Norman Lawsuit"). The plaintiff alleges, among other things, that the defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and that the individual named defendants are liable under Section 20(a) of the Exchange Act. The plaintiff seeks compensatory and consequential damages, attorneys' fees, and any other relief the court deems proper. On January 23, 2018, the District Court granted consolidation of the Norman Lawsuit, the Evans Lawsuit, the Fox Lawsuit, and the West Palm Beach Lawsuit, (as such terms are hereinafter defined), and granted plaintiffs' requests for appointment of lead counsel. The consolidated case is captioned In re SCANA Corporation Securities Litigation.The plaintiffs filed a consolidated amended complaint on March 30, 2018. At June 30, 2018, the defendants' motions to dismiss were pending. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Bid to Dismiss Pennington Suit Denied ------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that SCANA's and SCE&G's motion to dismiss the purported class action suit by Harry Pennington III and Timothy Lorenz has been denied. On August 8, 2017, a purported class action was filed against SCANA, SCE&G, and its co-defendants Fluor and Fluor Enterprises, Inc., by plaintiffs Harry Pennington III and Timothy Lorenz, on behalf of themselves and all others similarly situated, in the District Court. The plaintiffs allege, among other things, that the defendants violated the Worker Adjustment and Retraining Notification Act (WARN) Act in connection with the decision to stop construction on the Nuclear Project. The plaintiffs allege that the defendants failed to provide adequate advance written notice of their terminations of employment. SCANA's and SCE&G's Motion to Dismiss has been denied. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Continues to Defend Turner Class Action --------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend a purported class action suit by Mary Turner. On March 15, 2018, a purported class action was filed against SCANA, Dominion Energy, Sedona, Jimmy E. Addison, Gregory E. Aliff, James A. Bennett, John F.A.V. Cecil, Sharon A. Decker, D. Maybank Hagood, Lynne M. Miller, James W. Roquemore, Maceo K. Sloan, and Alfredo Trujillo by plaintiff Mary Turner, on behalf of herself and all others similarly situated in the District Court. The plaintiff alleges, among other things, that the defendants violated provisions of Section 14(a) of the Exchange Act and SEC Rule 14a-9 by allowing or causing misleading proxy statements to be issued. The plaintiffs alternatively seek to enjoin the merger, monetary damages, attorneys' fees, and any other relief the court deems proper. The defendants' motions for extension of time to respond to the plaintiff's Complaint have been granted. Defendants' responses are due July 31, 2018. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company was founded in 1924 and is based in Cayce, South Carolina. SCHMIDT BAKING: "Schilling" Class of DSMs Conditionally Certified ----------------------------------------------------------------- In the case, RONALD J. SCHILLING, JR., RUSSELL E. DOLAN, JONATHAN A. HECKER, MICHAEL McEWEN, MICHAEL HALAGER, DONALD L. BOLLINGER and MARCEL HAMIL TON, Individually and on Behalf of Other Similarly Situated Employees, Plaintiffs, v. SCHMIDT BAKING COMPANY, INC., Defendant, Civil Action No. TDC-16-2498 (D. Md.), Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland granted the Plaintiffs' (i) pre-discovery Motion for Conditional Certification and (ii) Motion for Equitable Tolling of the Statute of Limitations. The named Plaintiffs, acting as individuals and on behalf of all similarly situated individuals, have filed the action against their employer Schmidt, alleging violations of the Fair Labor Standards Act ("FLSA"). Schmidt, a bread production and distribution company based in Baltimore, Maryland, provides baked goods to various establishments. It employs the Plaintiffs and other individuals as District Sales Managers ("DSMs"), whose formal job description states that their function is to "manage" a particular geographic region in which Schmidt's products are sold. The Plaintiffs allege that despite this job description, DSMs' primary duty is to assist a group of independent operators -- independent contractors who lease delivery routes and vehicles from Schmidt in order to deliver Schmidt's products. Because independent operators are not Schmidt employees, DSMs have no authority over them. The primary way that DSMs assist independent operators is by filling in for them in driving their delivery routes, which generally take from 12 to 16 hours to complete. Due to understaffing, in addition to assisting those independent operators operating within their own districts, DSMs are called upon to make deliveries originating in other districts and to correct errors occurring in those districts. The Plaintiffs allege that, all told, they spend between 65% and 85% of their time each week making deliveries. Due to the limited number of delivery vehicles at each distribution center, DSMs use their personal vehicles to complete these deliveries approximately 90% of the time. DSMs spend the remainder of their time performing clerical duties, manual labor around Schmidt's warehouses, and work at customers' stores. According to the Plaintiffs, DSMs have no discretion in completing these tasks. They operate at the direction of Schmidt's Branch Managers, who are their direct supervisors, and Area Sales Managers. Because DSMs are salaried employees paid weekly, they receive the same salary regardless of how many hours they actually work. Although DSMs such as the Plaintiffs are scheduled to work between approximately 45 and 54 hours per week, because they are expected to perform job functions even during their scheduled time off, they consistently worked between 70 and 85 hours per week, sometimes working more than 100 hours over a seven-day work week. On July 6, 2016, Plaintiffs Schilling, Dolan, and Hecker filed the action on behalf of all DSMs, alleging that Schmidt has unlawfully failed to pay them overtime wages. They brought the case as both a collective action pursuant to the FLSA, and a class action pursuant to Maryland state wage laws. On July 27, 2016, Schmidt filed a Motion to Dismiss and for Summary Judgment. On Sept. 23, 2016, the Court, construing the motion as a Motion to Dismiss, granted it. The Plaintiffs appealed that ruling. On Nov. 17, 2017, the U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of the Plaintiffs' state law claims but reversed the dismissal of the FLSA claim. Upon remand, Plaintiffs McEwen, Halager, Bollinger, and Hamilton joined the case as the named Plaintiffs. On Feb. 26, 2018, the Plaintiffs filed a Motion for Conditional Certification, asking the Court to conditionally certify an FLSA collective action on behalf of all Schmidt DSMs and to assist them in identifying and notifying DSMs who are not currently parties to the Complaint. That same day, they filed a Motion for Equitable Tolling of the Statute of Limitations, asking the Court to toll the deadline for a putative class member to file an FLSA claim during the period from July 27, 2016, the date on which Schmidt filed its Motion to Dismiss and for Summary Judgment, to the date the Court rules on the Motion for Conditional Certification. Judge Chuang finds that the members of the putative class are sufficiently similarly situated to warrant conditional certification and notice. The Complaint alleges that DSMs are all salaried employees who perform the same job functions. He also finds unpersuasive Schmidt's argument that certification is inappropriate because a determination whether DSMs are subject to the TCA exception requires an individualized assessment whether each DSM actually drove vehicles in interstate commerce in each workweek. The MCA exemption, by its own terms, would only exempt an employee from FLSA overtime-wage requirements if that employee worked on vehicles engaged in interstate commerce. Thus, a finding that a DSM did not work on vehicles engaged in interstate commerce would not exempt that employee from the FLSA. Therefore, the Judge will conditionally certify the collective action and will facilitate notice to those DSMs who are not currently parties to the Complaint. Having conditionally certified the collective action, the Judge will authorize the provision of notice to members of the putative class. Although the Plaintiffs request certain specific rulings relating to notice, such as authorization to post a notice at Schmidt and to use a webpage, Schmidt requests an opportunity to discuss the form of notice with the Plaintiffs. Because the arguments for and against specific notice provisions have yet to be fully articulated, and the parties may reach a resolution of some or all of the disputes relating to notice, the Judge will decline to issue an order on the specific form or forms of notice and will instead require the parties to meet and confer and submit a comprehensive, joint proposal regarding notice within 15 days. Finally, where individuals have a potentially meritorious FLSA claim, but are prevented from asserting that claim by extraordinary circumstances not of their own making, the proper course is to toll the statute of limitations to allow adjudication of their claim on the merits. Accordingly, the Judge will grant the Plaintiffs' Motion for Equitable Tolling. The statute of limitations will be tolled from July 27, 2016 until the date notice is disseminated. For the foregoing reasons, Judge Chuang granted both the Plaintiffs' Motion for Conditional Certification and Motion for Equitable Tolling of the Statute of Limitations. The parties will be directed to submit a joint proposal relating to notice of the collective action within 15 days. A separate order will issue. A full-text copy of the Court's July 20, 2018 Memorandum Opinion is available at https://is.gd/2JU1xr from Leagle.com. Ronald J. Schilling, Jr., Russell E. Dolan, Jonathan A. Hecker, Individually and On Behalf of Other Similarly Situated Employees, Michael McEwen, Michael Halager, Donald L. Bollinger & Marcel Hamilton, Plaintiffs, represented by Benjamin L. Davis, III -- bdavis@nicholllaw.co -- Law Offices of Peter T. Nicholl. Schmidt Baking Company, Inc., Defendant, represented by Kathleen Pontone , Miles and Stockbridge PC, Amber N. Jackson -- ajackson@milesstockbridge.com -- Miles & Stockbridge, PC & Anthony W. Kraus -- akraus@milesstockbridge.com -- Miles and Stockbridge PC. SCI DIRECT: Romano Bid to Certify Class Taken under Submission -------------------------------------------------------------- In the lawsuit styled Nicole Romano, the Plaintiff v. SCI Direct, Inc., et al., the Defendant, Case No. 2:17-cv-03537-ODW-JEM (C.D. Cal.), the Hon. Judge Otis D. Wright II entered an order accepting the Plaintiff's motion to certify class under submission. As reported by Class Action Reporter, the Plaintiffs asked the Court to certify a class consisting of: All persons who worked for Defendants in California, as an Independent Sales Representative, who were, at any time within four years of the filing of the Complaint, classified as an independent contractor and earned any commissions and/or other wages. The Plaintiffs also asked the Court to appoint them as Class Representatives, and to appoint their attorneys as Class Counsel. Attorneys for Plaintiffs: Adrian Robert Bacon, Esq. Thomas Edward Wheeler, Esq. Law Offices of Todd M. Friedman, P.C. 324 S Beverly Blvd, Suite 725 Beverly Hills, CA 90212 Attorneys for Defendants: Christopher P Leyel, Esq. Lonnie J Williams, Jr, Esq. Yoka & Smith, LLP 445 South Figueroa Street, 38th Floor Los Angeles, CA 90071 Telephone: (213) 427 2300 Facsimile: (213) 427 2330 SEARS HOLDINGS: Faces Siu Suit in Calif. Dist. Ct. -------------------------------------------------- A class action lawsuit has been filed against Sears Holdings Management Corporation and Does 1 through 10. The case is entitled Gordon Siu, on behalf of himself and all others similarly situated v. Sears Holdings Management Corporation and Does 1 Through 10, inclusive, and each of them, Case No. 3:18-cv-01980-BEN-KSC (S.D. Cal., August 24, 2018). Sears Holdings Management Corporation operates as a holding company. The Company, through its subsidiaries, retails cloth, shoes, makeup, and accessories for children, women, and men. Sears Holdings serves customers throughout the United States.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com SEAWORLD ENTERTAINMENT: 9th Cir. Affirms Dismissal of Class Action ------------------------------------------------------------------ Robert Kahn, writing for Courthouse News Service, reported that the Ninth Circuit affirmed dismissal on Aug. 29 of a class action accusing SeaWorld of failing to disclose how it treats orcas. The unpublished opinion says SeaWorld had no duty to reveal information that did not "relate to the central functionality of the product." SETERUS INC: Baxa's Bid to Certify Class Denied without Prejudice ----------------------------------------------------------------- In the lawsuit entitled JOHN BAXA ET AL., the Plaintiff, v. SETERUS, INC., the Defendant, Case No. 2:17-cv-05434-JTM-MBN (E.D. La.), the Hon. Judge Jane Triche Milazzo entered an order on August 17, 2018: 1. denying Plaintiffs' motion to certify class without prejudice, to be re-urged after the filing of any amended complaint; and 2. denying Defendant's motion to continue as moot. The Court said, "Defendant filed a motion to dismiss Plaintiffs' complaint on January 4, 2018. Plaintiffs moved to certify a class on February 27, 2018. This Court stayed the briefing on the Motion to Certify Class pending a decision on the Motion to Dismiss. On July 31, 2018, the Court granted the Motion to Dismiss in part, giving Plaintiffs leave to amend to correct the deficiencies. The Court also reset the briefing schedule for the Motion to Certify. Defendant now asks the Court to continue the briefing schedule of Plaintiffs' Motion to Certify Class so that Defendant may take any amended complaint into account." SHELL OIL: Saltzman Labor Suit to Recover Unpaid OT Wages --------------------------------------------------------- Tyler Saltzman, individually and on behalf of all others similarly situated Plaintiff, v. Shell Oil Company, Defendant, Case No. 18-cv-02878, (S.D. Tex., May 8, 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. Saltzman worked for Shell as a wellsite operator and Logistics Coordinator. He regularly worked more than 40 hours a week but was not paid overtime, says the complaint. Shell is an oil and gas company operating throughout the United States, including Texas. Defendants classified Garcia as an independent contractor and paid him on a day-rate basis. [BN] Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: mjosephson@mybackwages.com litkin@ mybackwages.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com Email: mbellair@ltke.com SHELLY ENTERPRISE: Desta Suit Seeks to Recover Unpaid Wages ----------------------------------------------------------- Kumelachew W. Desta, on behalf of himself and others similarly situated v. Shelly Enterprise, Inc., Shelly SK Enterprise LLC, Shelly PSG Enterprise LLC, and Sanjiv Shelly, Case No. 3:18-cv-01967 (N.D. Tex., July 30, 2018), seeks to recover unpaid wages and unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiff worked as a cashier for the Defendants from January 26, 2017 to July 2, 2018. The Defendants own and operate 7-Eleven convenience stores as franchisees of 7-Eleven, Inc. in Irving, Texas. [BN] The Plaintiff is represented by: Francisco J. Caycedo, Esq. MINCES PLLC 4545 Bissonnet, Suite 286 Bellaire, TX 77401 Tel: (346) 701-8563 Fax: (713) 583-9795 E-mail: frank.caycedo@mincespllc.com STERICYCLE INC: Awaits Court OK on Bid to Dismiss Illinois Suit --------------------------------------------------------------- Stericycle, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the defendants' motion to dismiss a class action lawsuit in Illinois has been fully brief and the company is awaiting the court's ruling. On July 11, 2016, two purported stockholders filed a putative class action complaint in the U.S. District Court for the Northern District of Illinois. The plaintiffs purported to sue for themselves and on behalf of all purchasers of our publicly traded securities between February 7, 2013 and April 28, 2016, inclusive, and all those who purchased securities in our public offering of depositary shares, each representing a 1/10th interest in a share of the company's mandatory convertible preferred stock, on or around September 15, 2015. The complaint named as defendants the Company, its directors and certain of its current and former officers, and certain of the underwriters in the public offering. The complaint purports to assert claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as SEC Rule 10b-5, promulgated thereunder. The complaint alleges, among other things, that the Company imposed unauthorized or excessive price increases and other charges on its customers in breach of its contracts, and that defendants failed to disclose those alleged practices in public filings and other statements issued during the proposed class period beginning February 7, 2013 and ending April 28, 2016. On August 4, 2016, plaintiffs filed an Amended Complaint that purports to assert additional misrepresentations in public statements through July 28, 2016, and therefore to change the putative class period to the period from February 7, 2013 to July 28, 2016, inclusive. On October 21, 2016, plaintiffs filed a Corrected Amended Complaint adding the Company as a named defendant in plaintiff's claim under Section 11 of the Securities Act, which had previously been asserted only against the Underwriters and certain officers and directors. On November 1, 2016, the Court appointed the Public Employees' Retirement System of Mississippi and the Arkansas Teacher Retirement System as Lead Plaintiffs and their counsel as Lead Counsel. On February 1, 2017, Lead Plaintiff filed a Consolidated Amended Complaint with additional purported factual material supporting the same legal claims from the prior complaints for a class period from February 7, 2013 through September 18, 2016. Defendants filed a motion to dismiss the Consolidated Amended Complaint on April 1, 2017. On May 19, 2017, plaintiffs filed a response in opposition to the motion to dismiss and on June 19, 2017, Defendants filed a reply brief in support of their motion. On March 31, 2018, plaintiffs filed a further Amended Complaint, alleging additional corrective disclosures and extending the purported class period through February 21, 2018. Defendants filed a motion to dismiss the Consolidated Amended Complaint on May 25, 2018. Stericycle said "The Motion was fully briefed on July 13, 2018, and we await a ruling by the Court. We intend to vigorously defend ourselves against this lawsuit." Stericycle, Inc., together with its subsidiaries, provides regulated and compliance solutions to the healthcare, retail, and commercial businesses in the United States and internationally. Stericycle, Inc. was founded in 1989 and is based in Lake Forest, Illinois. STERICYCLE INC: Continues to Defend Ibrahim TCPA Class Suit ----------------------------------------------------------- Stericycle, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend itself in a putative class action suit entitled, Ibrahim v. Stericycle, Inc. On June 3, 2016, a plaintiff filed a putative class action, captioned Ibrahim v. Stericycle, Inc., No. 16-cv-4294 (N.D. Ill.), against the company and its wholly-owned subsidiary, Stericycle Communication Solutions, Inc., under the Telephone Consumer Protection Act ("TCPA"), asserting that the defendants called plaintiff and others in violation of that statute. Plaintiff challenges the company's use of pre-recorded messages that urge the owners of recalled products to return or obtain repairs for those products. Plaintiff seeks certification of two nationwide classes. One class includes people who received one or more cellular telephone calls from Stericycle featuring a prerecorded or artificial voice message relating to a product recall, where the called party was not the same individual who, according to Stericycle's records, was the intended recipient of the call. The second class includes people who received one or more cellular telephone calls from Stericycle featuring a prerecorded or artificial voice message relating to a product recall after such person had communicated to Stericycle that Stericycle did not have consent to make any such calls to their cellular telephone number. On July 28, 2016, the company answered the complaint, denying the material allegations and raising certain affirmative defenses. Among the asserted defenses is the "emergency" exception to the TCPA, which exempts calls made to promote public health and safety. On December 19, 2016, before any substantial discovery in the case, the company filed a motion for summary judgment primarily on the basis of the "emergency" exception. On February 1, 2017, plaintiff responded to the company's motion by requesting additional discovery. The court permitted plaintiff to obtain some but not all of the requested discovery, and the company has provided additional documents in response to that order. On April 5, 2017, plaintiff sought leave to file an amended complaint which would add a claim under the Illinois Automatic Telephone Dialers Act (which does not include an "emergency" exception) and certain additional allegations. The company filed an opposition to this motion on April 28, 2017, contending that the proposed amendments are futile and that the company is entitled to summary judgment. On June 27, 2017, the court permitted plaintiff to file the amended complaint. The company answered plaintiffss amended complaint, denying liability, and in light of the amended complaint, withdrew our motion for summary judgment without prejudice. The parties conducted discovery, which closed on May 15, 2018. Motions for Summary Judgment and Plaintiff's Motion for Class Certification are scheduled to be briefed by the end of 2018. Stericycle said, "We intend to vigorously defend ourselves against this lawsuit." Stericycle, Inc., together with its subsidiaries, provides regulated and compliance solutions to the healthcare, retail, and commercial businesses in the United States and internationally. Stericycle, Inc. was founded in 1989 and is based in Lake Forest, Illinois. STERICYCLE INC: Pays Final Settlement Sum in Contract Class Suit ---------------------------------------------------------------- Stericycle, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the Company has funded the Final Settlement in the Contract Class Action Lawsuits. The company was served on March 12, 2013 with a class action complaint filed in the U.S. District Court for the Western District of Pennsylvania by an individual plaintiff for itself and on behalf of all other "similarly situated" customers of the company. The complaint alleged, among other things, that the company had imposed unauthorized or excessive price increases and other charges on its customers in breach of its contracts and in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. The complaint sought certification of the lawsuit as a class action and the award to class members of appropriate damages and injunctive relief. The Pennsylvania class action complaint was filed in the wake of a settlement with the State of New York of an investigation under the New York False Claims Act which arose out of the qui tam (or "whistle blower") action captioned United States of America ex rel. Jennifer D. Perez v. Stericycle, Inc., Case No. 1:08-cv-2390, which was settled in the fourth quarter of 2015 as previously disclosed. Following the filing of the Pennsylvania class action complaint, the company was served with class action complaints filed in federal and state courts in several jurisdictions. These complaints asserted claims and allegations substantially similar to those made in the Pennsylvania class action complaint. All of these cases appear to be follow-on litigation to our settlement with the State of New York. On August 9, 2013, the Judicial Panel on Multidistrict Litigation granted the company's Motion to Transfer these related actions to the United States District Court for the Northern District of Illinois for centralized pretrial proceedings (the "MDL Action"). On December 10, 2013, the company filed its answer to the Amended Consolidated Class Action Complaint in the MDL Action, generally denying the allegations therein. Plaintiffs subsequently filed a Second Amended Consolidated Complaint on March 8, 2016, and the company filed an answer to that pleading on March 25, 2016, generally denying the allegations therein and asserting a variety of affirmative defenses. Plaintiffs filed a motion for class certification on January 29, 2016. On February 16, 2017, the Court entered an order granting plaintiffs' motion for class certification. The Court certified a class of "all persons and entities that, between March 8, 2003 through the date of trial resided in the United States (except Washington and Alaska), were identified by Stericycle as 'Small Quantity' or 'SQ' customer, and were charged and paid more than their contractually-agreed price for Stericycle's medical waste disposal goods and services pursuant to Stericycle's automated price increase policy. Governmental entities whose claims were asserted in United States ex rel. Perez v. Stericycle Inc. shall be excluded from the class." On March 2, 2017, Stericycle filed a motion for reconsideration and clarification relating to the Court's class certification decision. The parties engaged in discussions through and overseen by a mediator regarding a potential resolution of the matter and reached an agreement in principle for settlement in July 2017 (the "Proposed MDL Settlement"). Stericycle said "As we disclosed in a current report on Form 8-K filed on August 2, 2017, the terms of the Proposed MDL Settlement provided that the Company would establish a common fund of $295.0 million from which will be paid all compensation to members of the settlement class, attorneys' fees to class counsel, incentive awards to the named class representatives and all costs of notice and administration. It also provided that our existing contracts with customers would remain in force, while we would also establish as part of the Proposed MDL Settlement guidelines for future price increases and provide customers additional transparency regarding such increases. The Proposed MDL Settlement also addressed additional matters, including the availability of alternative dispute resolution for members of the settlement class. In the Proposed MDL Settlement, we admitted no fault or wrongdoing whatsoever. We entered into the Proposed MDL Settlement in order to avoid the cost and uncertainty of litigation." In view of the Proposed MDL Settlement, the company recorded a pre-tax charge of $295.0 million during the second quarter of 2017. On October 17, 2017, the Company executed a definitive written settlement agreement (the "Settlement"), which incorporated the terms of the agreement in principle announced in August 2017. The Settlement incorporated the terms of the Proposed MDL Settlement, and proposes a global resolution of all cases and claims against the Company in the MDL Action, including the allegation that price increases implemented by the Company allegedly violated the contracts between the Company and its customers as well as various state consumer protection statutes. Under the terms of the Settlement, the Company admitted no fault or wrongdoing whatsoever, and it entered into the Settlement to avoid the cost and uncertainty of litigation. The Settlement provided that, upon final approval by the Court following a fairness hearing, it would fully and finally resolve all claims against the Company alleged in the MDL Action. On October 17, 2017, plaintiffs in the MDL Action filed Plaintiffs' Unopposed Motion for Preliminary Approval of Class Settlement and Approval of Notice Plan. Following a hearing on October 26, 2017, the Court granted preliminary approval of the Settlement and set certain deadlines, including for notification of the class of the terms of the Settlement, the submission of opt-outs or objections to the Settlement, and a fairness hearing. The fairness hearing was held on March 8, 2018. The Court granted approval of the Proposed MDL Settlement that same day. The Court entered final judgment on May 8, 2018. No appeal was filed, and the Proposed MDL Settlement became finally effective on June 7, 2018 (the "Final Settlement"). The Company funded the Final Settlement on July 6, 2018. Stericycle said, "Certain class members who have opted out of the Final Settlement have filed lawsuits against the Company, and the Company will defend and resolve those actions. The Company has accrued its estimate of the probable loss for these collective matters, which is not material." Stericycle, Inc., together with its subsidiaries, provides regulated and compliance solutions to the healthcare, retail, and commercial businesses in the United States and internationally. Stericycle, Inc. was founded in 1989 and is based in Lake Forest, Illinois. STEVENS BUSINESS: Violates Fair Debt Collection Act, Koenig Says ---------------------------------------------------------------- A class action lawsuit has been filed against Stevens Business Services, Inc. The case is styled as Leopold Koenig, individually and on behalf of all others similarly situated v. Stevens Business Services, Inc., Case No. 1:18-cv-04820 (E.D.N.Y., August 24, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Stevens Business Service, Inc., provides debt collection services. The company offers skip tracing, asset and liability search, attorney referral, credit bureau reporting, liquidation, online bill payment, and pre-collect services. The Company caters to utility, commercial, and healthcare sectors. The Company was founded in 1953 and is based in Lowell, Massachusetts.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. SANDERS LAW, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 281-7601 E-mail: csanders@sanderslawpllc.com SUPERFEET WORLDWIDE: Violates Disabilities Act, Kiler Suit Says --------------------------------------------------------------- A class action lawsuit has been filed against Superfeet Worldwide, Inc. The case is styled as Marion Kiler, Individually and as the representative of a class of similarly situated persons v. Superfeet Worldwide, Inc., Case No. 1:18-cv-04828 (E.D.N.Y., August 24, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Superfeet Worldwide, Inc., designs and manufactures insoles for various sports and footwear. The Company provides sandals for men and women; and insoles for skiing, snowboarding, hiking, running and walking, soccer, golfing, cycling, hockey, office, industrial, health and wellness, and military activities. It markets and sells its products through dealers/distributors in Europe, Australia, Canada, Israel, Japan, New Zealand, Puerto Rico, and internationally; and online. The Company was founded in 1977 and is based in Ferndale, Washington.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Telephone: (917) 373-9128 Facsimile: (718) 504-7555 E-mail: shakedlawgroup@gmail.com SUPERVALU INC: Faces Shareholder Class Action Over United Deal -------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that The Vladimir Gusinsky Rev. Trust is lead plaintiff in a federal shareholder class action against directors who are selling Supervalu supermarkets to United Natural Foods for $32.50 a share or $2.9 billion. TERMINIX INT'L: Can Compel Arbitration in Salesperson's Suit ------------------------------------------------------------ Judge Samuel H. Mayes, Jr. of the U.S. District Court for the Western District of Tennessee, Western Division, granted the Defendants' Motion to Compel Arbitration in the case, JOHN LOGAN SHARP, on behalf of himself and all others similarly situated, Plaintiff, v. TERMINIX INTERNATIONAL, INC., et al., Defendants, Case No. 2:18-cv-02072-SHM-dkv (W.D. Tenn.). The action arises from an alleged agreement between the Plaintiff and the Defendants in which the Defendants promised to pay their outside salespersons commission on products and services sold. The Plaintiff alleges that the Defendants have engaged in a pattern and practice of failing to pay him and other outside salespersons agreed-upon commissions in a timely manner. He alleges breach of contract, unjust enrichment, and violation of Sections 3-502 and 3-505 of the Maryland Wage Payment and Collection Law. He seeks compensatory damages, punitive damages, prejudgment interest, and attorney's fees. The heart of the present dispute is whether the parties agreed to arbitrate their claims. The Defendants contend that they maintain a policy of requiring, as a condition of employment, all employees and new hires to agree to utilize [an] alternative dispute resolution program known as The ServiceMaster We Listen Dispute Resolution Plan. They assert that on May 11, 2016, Plaintiff signed an employment contract that referred to The We Listen Plan. The Plaintiff argues that The We Listen Plan is invalid because it lacks consideration and unenforceable because it is unconscionable. He argues that he did not sign The We Listen Plan because he was not provided a copy of it. He contends that, when he signed the Compensation Plan, the Defendants did not mention We Listen, did not explain the terms of We Listen, and did not provide me with a copy of We Listen to read or review. On Feb. 23, 2018, the Defendants filed the Motion. The Motion contends that the Plaintiff's claims are subject to a valid and enforceable arbitration agreement. The Defendants move the Court to dismiss the case or, alternatively, stay the case pending arbitration. On March 9, 2018, the Plaintiff responded. The Defendants replied on March 21, 2018. On May 21, 2018, the Defendants filed a Supplemental Memorandum. Judge Mayes finds that the arbitration agreement is not invalid for lack of consideration. However, he finds that the Plaintiff has failed to establish that The We Listen Plan is substantively conscionable. The We Listen Plan memorializes the parties' agreement to arbitrate their disputes. It is not unenforceable on the ground of unconscionability. It contains a valid arbitration agreement. The Judge further finds that the Plaintiff's causes of action for breach of contract, unjust enrichment, and violation of Sections 3-502 and 3-505 of the Maryland Wage Payment and Collection Law are subject to arbitration under The We Listen Plan. Hence, the class action waiver is enforceable. And because all of the Plaintiff's claims are subject to arbitration, the Judge needs not consider whether to stay them. For the foregoing reasons, Judge Mayes granted the Defendants' Motion. He dismissed without prejudice the case to the parties' right to re-open it for entry of an arbitration award or for any other relief to which the parties may be entitled. The parties are directed to proceed to arbitration in accordance with the terms of their agreement. A full-text copy of the Court's July 20, 2018 Order is available at https://is.gd/HmOk73 from Leagle.com. John Logan Sharp, Plaintiff, represented by Danielle Lynn Perry -- dperry@wbmllp.com -- WHITFIELD BRYSON & MASON, LLP, pro hac vice, Gary E. Mason -- gmason@wbmllp.com -- WHITFIELD BRYSON & MASON, LLP, pro hac vice & Caroline Ramsey Taylor -- caroline@wbmllp.com -- WHITFIELD BRYSON & MASON LLP. Terminix International, Inc., The Terminix International Company Limited Partnership & ServiceMaster Global Holdings, Inc., Defendants, represented by Paul E. Prather -- pprather@littler.com -- LITTLER MENDELSON, PLC & Steven W. Likens -- slikens@littler.com -- LITTLER MENDELSON, PLC. TEVA PHARMA: Baker Consolidated with Grodko & Moved to Connecticut ------------------------------------------------------------------ Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the securities class action suit by Barry Baker in the U.S. District Court for the Eastern District of Pennsylvania has been consolidated with the securities class action suit filed by Elliot Grodko in the U.S. District Court for the Eastern District of Pennsylvania, and the consolidated suit was transferred to the District of Connecticut where the Ontario Teachers Securities Litigation is currently pending. On August 30, 2017, a putative securities class action was filed by Barry Baker in the U.S. District Court for the Eastern District of Pennsylvania on behalf of purchasers of Teva's securities between November 15, 2016 and August 2, 2017 seeking unspecified damages, legal fees, interest, and costs. The complaint alleges that Teva and certain officers violated the federal securities laws by making false and misleading statements in connection with Teva's acquisition and integration of Actavis Generics. On November 1, 2017, the Court consolidated the Baker case with the Grodko case. On April 10, 2018, the Court granted Teva's motion to transfer the action to the District of Connecticut where the Ontario Teachers Securities Litigation is currently pending. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Bid to Dismiss Ontario Teachers Suit Due Sept. 14 -------------------------------------------------------------- In the case, Ontario Teachers' Pension Plan Board, et al v. Teva Pharmaceutical Industries Ltd. et al., Case No. 3:17-cv-00558 (D. Conn., April 4, 2017), the Hon. Stefan R Underhill entered a Scheduling Order providing that: 1. Defendants must file any motion(s) to dismiss the Amended Consolidated Class Action Complaint on or before Sept. 14, 2018; 2. Lead Plaintiffs must file any opposition to the motion(s) to dismiss the Consolidated Class Action Complaint on or before Nov. 9, 2018; and 3. Defendants must file any reply in support of their motion(s) to dismiss the Amended Consolidated Class Action Complaint on or before Dec. 21, 2018. Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that on November 6, 2016 and December 27, 2016, two putative securities class actions were filed in the U.S. District Court for the Central District of California against Teva and certain of its current and former officers and directors. After those two lawsuits were consolidated and transferred to the U.S. District Court for the District of Connecticut, the court appointed the Ontario Teachers' Pension Plan Board as lead plaintiff (the "Ontario Teachers Securities Litigation"). The lead plaintiff then filed a consolidated amended complaint. On December 1, 2017, Teva and the current and former officer and director defendants subsequently filed motions to dismiss the consolidated amended complaint, with prejudice. On April 3, 2017, the court granted the motions to dismiss without prejudice. Lead plaintiff filed a second amended complaint on June 22, 2018, purportedly on behalf of purchasers of Teva's securities between February 6, 2014 and August 3, 2017. The second complaint asserts that Teva and certain of its current and former officers and directors violated federal securities laws in connection with Teva's alleged failure to disclose pricing strategies for various drugs in its generic drug portfolio, and by making allegedly false or misleading statements in certain offering materials issued during the class period. The second complaint seeks unspecified damages, legal fees, interest, and costs. The current deadline for defendants to file motions to dismiss is August 30, 2018. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Court Puts Off OZ ELS Master Fund Suit --------------------------------------------------- Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that all deadlines in the lawsuit by OZ ELS Master Fund, Ltd., et al. have been shelved pending resolution of the motions to dismiss filed in the Ontario Teachers Securities Litigation. On August 3, 2017, a securities lawsuit was filed in the U.S. District Court for the District of Connecticut by OZ ELS Master Fund, Ltd., OZ Special Funding, L.P, OZ Enhanced Master Fund, Ltd., Gordel Capital Limited, OZ Global Equity Opportunities Master Fund, Ltd., OZ Master Fund, Ltd., and OZ Global Special Investments Master Fund L.P. The complaint asserts that Teva and certain of its current and former officers violated the federal securities laws in connection with Teva's alleged failure to disclose Teva's participation in an alleged anticompetitive scheme to fix prices and allocate markets for generic drugs in the United States. On August 30, 2017, the court entered an order deferring all deadlines pending the resolution of the motions to dismiss filed in the consolidated putative securities class action entitled, Ontario Teachers Securities Litigation. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Grodko Suit Transferred to District of Connecticut --------------------------------------------------------------- Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the Court has granted Teva's motion to transfer the class action suit filed by Elliot Grodko to the District of Connecticut where the Ontario Teachers Securities Litigation is currently pending. On August 21, 2017, a putative securities class action was filed by Elliot Grodko in the U.S. District Court for the Eastern District of Pennsylvania purportedly on behalf of purchasers of Teva's securities between November 15, 2016 and August 2, 2017 seeking unspecified damages, legal fees, interest, and costs. The complaint alleges that Teva and certain of its current and former officers violated the federal securities laws and Israeli securities laws by making false and misleading statements in connection with Teva's acquisition and integration of Actavis Generics. On April 10, 2018, the Court granted Teva's motion to transfer the action to the District of Connecticut where the Ontario Teachers Securities Litigation is currently pending. No further updates were provided in the Company's SEC report. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: PROVIGIL(R) Suit Against Unit Still Ongoing -------------------------------------------------------- Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that Cephalon, Inc. continues to defend itself in a class action suit related to PROVIGIL(R). In April 2006, certain subsidiaries of Teva were named in a class action lawsuit filed in the U.S. District Court for the Eastern District of Pennsylvania. The case alleges that the settlement agreements entered into between Cephalon, Inc., now a Teva subsidiary ("Cephalon"), and various generic pharmaceutical companies in late 2005 and early 2006 to resolve patent litigation involving certain finished modafinil products (marketed as PROVIGIL(R)) were unlawful because they had the effect of excluding generic competition. The case also alleges that Cephalon improperly asserted its PROVIGIL patent against the generic pharmaceutical companies. The first lawsuit was brought by King Drug Company of Florence, Inc. on behalf of itself and as a proposed class action on behalf of any other person or entity that purchased PROVIGIL directly from Cephalon. Similar allegations were made in other complaints, including those filed on behalf of a proposed class of end payers of PROVIGIL, by certain individual end payers, by certain retail chain pharmacies and by Apotex, Inc. (collectively, these cases are referred to as the "Philadelphia Modafinil Action"). Separately, Apotex challenged Cephalon's PROVIGIL patent, and in October 2011, the Court found the patent to be invalid and unenforceable based on inequitable conduct. This decision was affirmed on appeal in April 2013. Teva has either settled or reached agreements in principle to settle with all of the plaintiffs in the Philadelphia Modafinil Action. However, one of the end payers, United Healthcare Services, took the position that it is not bound by the settlement that was agreed to on its behalf and brought a separate action in Minnesota federal court, which has been transferred to the U.S. District Court for the Eastern District of Pennsylvania, where Teva has also filed suit to enforce the settlement. A bench trial in the suit to enforce the settlement commenced on April 23, 2018 and concluded on April 27, 2018. The parties submitted post-trial briefing in June 2018, and the court has not yet issued any decision. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TEVA PHARMA: Suit over Employee Stock Purchase Plan Remains Stayed ------------------------------------------------------------------ Teva Pharmaceutical Industries Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2018, for the quarterly period ended June 30, 2018, that the lawsuit over an Employee Stock Purchase Plan remains stayed. On July 17, 2017, a lawsuit was filed in the U.S. District Court for the Southern District of Ohio derivatively on behalf of the Teva Employee Stock Purchase Plan, and alternatively as a putative class action lawsuit on behalf of individuals who purchased Teva stock through that plan. That lawsuit seeks unspecified damages, legal fees, interest and costs. The complaint alleges that Teva failed to maintain adequate financial controls based on the facts underpinning Teva's Foreign Corrupt Practices Act (FCPA) deferred prosecution agreement, and also based on allegations substantially similar to those in the Ontario Teachers Securities Litigation. On November 29, 2017, the court granted Teva's motion to transfer the litigation to the U.S. District Court for the District of Connecticut where the Ontario Teachers Securities Litigation is pending. On December 29, 2017, the parties jointly moved to stay the case pending resolution of the motions to dismiss filed in the consolidated putative securities class action, which the court granted on February 12, 2018. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. Teva Pharmaceutical Industries Limited was founded in 1901 and is headquartered in Petach Tikva, Israel. TOP SHIPS: Court Consolidates 2 Securities Suits ------------------------------------------------ In the case, CHRISTOPHER BRADY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. TOP SHIPS INC., ET AL., Defendants, Case No. 17-CV-4987 (JFB) (SIL) (E.D. N.Y.), Judge Joseph F. Bianco of the U.S. District Court for the Eastern District of New York granted the motions to consolidate Brady and Narine v. Top Ships Inc., appointed the Top Ships Investor Group as the lead Plaintiff, and approved the Top Ships' selection of Pomerantz as the lead counsel. Presently before the Court are two competing motions, pursuant to Section 21D of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"), requesting that the Court (1) consolidates two related securities class actions; (2) appoint the movant as the lead Plaintiff; and (3) approves the movant's selection of the lead counsel. The pending motions were filed in the instant action, which was the first of the related actions filed -- one by Moshe Onel, Amardeep Sidhu, and Joel Sofer ("Top Ships Investor Group"), and the other by Mickey Nardiello and Zhenzhe Wang. The Top Ships Investor Group and Nardiello and Wang filed their motions on behalf of a putative class of purchasers of TOP Ships securities during the period of the Defendants' alleged Exchange Act violations, spanning from Jan. 17, 2017 to Aug. 22, 2017. The Defendants include Top Ships, as well as Top Ships' CEO, President, and director, Evangelos J. Pistiolis, and Top Ships' CFO and director, Alexandros Tsirikos, and Top Ships' underwriter, Kalani Investments Ltd., a hedge fund behind Kalani, Murchinson Ltd., and the head of Murchinson, Marc Bistricer ("Kalani Defendants"). Brady filed his complaint in the action on Aug. 23, 2017, and Plaintiff Karon Narine filed his complaint in Narine v. Top Ships Inc., E.D.N.Y, Case No. 17cv-5016 (JFB)(SIL) on Aug. 24, 2017. The complaints name the same Defendants, which include Top Ships, the Top Ships Officer Defendants, and the Kalani Defendants. According to the complaints, Top Ships is an international provider of oil, petroleum products and chemicals transportation services. The Plaintiffs allege in both cases that, through acts taken in furtherance of the alleged schemes, the Defendants intended to, and succeeded in, deceiving the investing public and artificially manipulating the price of Top Ships common stock. They claim that the Defendants violated the Exchange Act and Rule 10b-5 promulgated thereunder. The complaints are nearly identical, describing the same alleged fraudulent schemes, acts, and events that occurred during the same class periods and allegedly resulted in the same stock price declines and damages to investors. Both complaints include the following claims: (1) violation of Section 10(b) of the Exchange Act and Rule 10b-5 against all the Defendants, and (2) violation of Section 20(a) of the Exchange Act against the Top Ships Officer Defendants. Additionally, the Brady complaint includes Defendants Bistricer and Murchinson in the Section 20(a) claim, and brings a claim for violation of Section 9 of the Exchange Act against all the Defendants. With regard to the Defendants' specific acts, both complaints allege that Top Ships' CEO, Pistiolis, caused Top Ships to engage in a series of manipulative share issuance/sales transactions with Kalani and related entities. Both complaints allege that the Defendants made false and misleading statements in SEC filings, including by failing to disclose their alleged fraudulent scheme to manipulate the Top Ships common stock price. The complaints discuss disclosures of acquisitions and sales of shares during this period, as well as declines in the price of common stock, shareholder meetings, and approvals of reverse stock splits. In addition to the overlapping allegations as to the Defendants' fraudulent actions, both complaints allege the same resulting harm: the scheme would ultimately result in shareholders losing more than 99% of the value of Top Ships' shares in a matter of months. On Oct. 23, 2017, six separate movants filed motions (1) to consolidate the related actions, (2) for appointment as the lead Plaintiff, and (3) for approval of their selection of the lead counsel. The following four movants subsequently submitted letters withdrawing (or effectively withdrawing) their motions: (1) Anthony Nguyen, on Oct. 30, 2017 (ECF No. 51), (2) Tomy Lukose, on Nov. 6, 2017, (3) Carla Byrd and Todd Loccisano, on Nov. 6, 2017, and (4) Joseph M. Petite and Martine-Vivianne Petite, on Nov. 6, 2017. In withdrawing, none of the Plaintiffs expressed support for a specific remaining movant group. The two remaining movant groups, Top Ships Investor Group and Nardiello and Wang, each twice reiterated their positions established in their initial motion papers: on Nov. 6, 2017, both groups filed memoranda in further support of their motions, and opposing the competing motions; and on Nov. 13, 2017, both filed their replies. First, because Judge Bianco finds that the two putative class actions present common questions of law and fact, and that consolidation would serve the interests of judicial economy, he granted the motions to consolidate. Second, based on its determination that (1) the Top Ships Investor Group has the largest financial interest, (2) this group has made the requisite preliminary, prima facie showing that it otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure, and (3) the presumption under the PSLRA that the Top Ships Investor Group is the most adequate Plaintiff to represent the class has not been rebutted, he appointed the Top Ships Investor Group as the lead Plaintiff. Finally, the Judge approved the Top Ships' selection of Pomerantz LLP as the lead counsel. A full-text copy of the Court's July 20, 2018 Memorandum and Order is available at https://is.gd/ZlLugO from Leagle.com. Tomy Lukose, Movant, represented by Frederic S. Fox -- ffox@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP. Anthony Nguyen, Movant, represented by Phillip Kim -- pkim@rosenlegal.com -- Rosen Law Firm, P.A. P.C. Carla Byrd & Todd Loccisano, Movants, represented by Lesley Frank Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP. Joseph M. Petite & Martine-Vivianne Petite, Movants, represented by Kim Elaine Miller -- kim.miller@ksfcounsel.com -- Kahn Gauthier Swick, LLC. Moshe Onel, Amardeep Sidhu & Joel Sofer, Movants, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP & J. Alexander Hood -- ahood@pomlaw.com -- Pomerantz LLP. Mickey Nardiello & Zhenzhe Wang, Movants, represented by David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP. Christopher Brady, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by David Avi Rosenfeld, Robbins Geller Rudman & Dowd, LLP & Samuel H. Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd, LLP. Top Ships Inc., Evangelos J. Pistiolis & Alexandros Tsirikos, Defendants, represented by Jenny R.A. Pelaez, Wilmer Cutler Pickering Hale and Dorr LLP, Jeremy Adler -- JEREMY.ADLER@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Michael G. Bongiorno -- MICHAEL.BONGIORNO@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP & Peter Kolovos -- PETER.KOLOVOS@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice. Murchinson Ltd. & Marc Bistricer, Defendants, represented by Noah Nehemiah Gillespie -- noah.gillespie@srz.com -- Schulte Roth & Zabel LLP & Peter H. White -- pete.white@srz.com -- Schulte Roth & Zabel LLP, pro hac vice. TRIPLE T TRADING: Violates Disabilities Act, Bunting Suit Says -------------------------------------------------------------- A class action lawsuit has been filed against Triple T Trading Ltd. The case is entitled Rasheta Bunting, Individually and as the representative of a class of similarly situated persons v. Triple T Trading Ltd doing business as: Northside USA, Case No. 1:18-cv-04829 (E.D.N.Y., August 24, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Triple T. Trading Ltd. does business as Northside USA. The Company's line of business includes the wholesale distribution of footwear. The Plaintiff appears pro se.[BN] TROON GOLF: Merlin Suit Seeks Unpaid Overtime Premium ----------------------------------------------------- Craig Merlin, and other similarly situated individuals, Plaintiff, v. Troon Golf, LLC, Deering Bay Yacht and Country Club, Inc. and David Regan, Defendant, Case No. 18-CV-23411 (S.D. Fla., August 22, 2018), seeks to recover money damages for unpaid overtime liquidated damages, costs, and reasonable attorneys' fees under the Fair Labor Standards Act. Deering Bay operates a golf facility in Miami-Dade County, where Troon manages the golf courses. Merlin worked for Defendants as a golf professional. [BN] Plaintiff is represented by: Elizabeth Olivia Hueber, Esq. Michael L. Feinstein, Esq. 200 SE 18th Court Fort Lauderdale, FL 33316 Tel. (954) 767-9662 E-mail: Elizabeth@Feinsteinlaw.net TWIN DRAGONS: Underpays Kitchen Staff, Rood Bobo Suit Alleges ------------------------------------------------------------- ROOD C. BOBO, individually and on behalf of all others similarly situated, Plaintiff v. TWIN DRAGONS, INC. D/B/A THE GOURMET DELI HOUSE; BORIS BRODSKY; and ROODY RAYMOND, Defendants, Case No. 9:18-cv-81040-DMM (S.D. Fla., August 3, 2018) is an action against the Defendants to recover unpaid overtime compensation under the Fair Labor Standards Act. Mr. Bobo was employed by the Defendants as kitchen staff from June 2017 to June 2018. Twin Dragons, Inc. d/b/a The Gourmet Deli House is a Florida corporation engaged in the restaurant business. [BN] The Plaintiff is represented by: Maguene D. Cadet, Esq. LAW OFFICE OF DIEUDONNE CADET, P.A. 2500 Quantum Lakes Drive, Suite 203 Boynton Beach, FL 33426 Telephone: (561) 853-2212 Facsimile: (561) 853-2213 E-mail: Maguene@DieudonneLaw.com UBER TECHNOLOGIES: Set To Pay $34K+ Per Person in Settlement ------------------------------------------------------------ Mike Snider, writing for USA Today, reports that Uber may have a new CEO and potential plans for a 2019 public stock offering, but it remains in the shadows of cultural scandals that wracked the ride-hailing company in 2017. The San Francisco-based company announced on August 22 that it will pay $1.9 million, or about $34,000 per person, to 56 former and current employees who say they were harassed or discriminated against while working at the ride-hailing company. That settlement is part of a $10 million overall settlement announced in March as part of a class-action discrimination suit against Uber. That suit, filed in October 2017, involves claims from 487 female and minority engineers going back to 2013. Long a high-flying tech startup fueled by the bravado of its onetime co-founder and CEO Travis Kalanick, Uber hit rough waters in February 2017 with a blog post by former engineer Susan Fowler. Her bombshell account detailed a toxic, sexist work environment where discrimination complaints were often brushed aside. Fowler's piece quickly led to internal investigations that ultimately forced the resignation of Kalanick and, more recently, the firing of human resources boss Liane Hornsey after an investigation into her conduct including reportedly her handling of employee complaints about racism. The original discrimination suit against Uber was filed by three Latina software engineers -- Ingrid Avendano, Roxana del Toro Lopez and Ana Medina -- who alleged that female engineers and engineers of color were paid less, hired for lower-level jobs, promoted more slowly and subject to bias in their performance evaluations. Details about the 56 current and former employees who also alleged harassment, a hostile work environment and emotional distress were in a court filing made on August 20 in the U.S. District Court for the Northern District of California by the plaintiffs' attorneys. Uber said in a statement that it agrees "with the plaintiff's motion which states that 'the class has responded extremely favorably to the settlement' with amounts that are 'fair, reasonable, and adequate.'" Since hiring its new CEO, former Expedia boss Dara Khosrowshahi, a year ago, Uber has implemented a new employee salary and equity structure, overhauled its performance review process and addressed diversity concerns with its second diversity and inclusion report and an extensive diversity and leadership training process. Khosrowshahi also has appeared in prime-time commercials in which he tells viewers that the company is now dedicated to doing "the right thing."[GN] ULTIMATE HOME SERVICES: Installers Suit to Recover Unpaid OT Wages ------------------------------------------------------------------ Kelly Thacker, Kris Hall and Kelly Cooper, on behalf of themselves and others similarly situated, Plaintiffs, v. Ultimate Home Services, LLC, Defendant, Case No. 18-cv-02573, (S.D. Ind., August 21, 2018), seeks to recover unpaid overtime compensation, as well as an additional amount as liquidated damages, and costs and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. Ultimate Home is engaged in the business of installing flooring in Indiana, Ohio and Michigan where Plaintiffs worked as estimators/schedulers. [BN] Plaintiff is represented by: Jason P. Cleveland, Esq. Spenser G. Benge, Esq. CLEVELAND LEHNER CASSIDY 8250 Haverstick Road, Suite 235 Indianapolis, IN 46240 Tel: (317) 388-5424 Fax: (317) 947-1863 Email: jason@clcattorneys.com spenser@clcattorneys.com UNITED STATES: Calif. Court Narrows Claims in Asylum Seekers' Suit ------------------------------------------------------------------ The United States District Court for the Southern District of California granted in part and denied in part Defendants' Motion to Dismiss the case captioned AL OTRO LADO, INC., a California Corporation; ABIGAIL DOE, BEATRICE DOE, CAROLINA DOE, DINORA DOE, INGRID DOE, and JOSE DOE, individually and on behalf of all others similarly situated, Plaintiffs, v. KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, in her official capacity; KEVIN K. MCALEENAN, Acting Commissioner, U.S. Customs and Border Protection, in his official capacity; TODD C. OWEN, Executive Assistant Commissioner, Officer of Field Operations, U.S. Customs and Border Protection, in his official capacity, Defendants, Case No. 17-cv-02366-BAS-KSC (S.D. Cal.). At the heart of this case are several provisions of the Immigration and Nationality Act (INA) and its implementing regulations which elaborate a procedure by which asylum seekers who arrive at POEs may seek asylum in the United States a procedure the Plaintiffs refer to as access to the U.S. asylum process. The Plaintiffs allege that CBP officials have systematically violated U.S. law and binding international human rights law by refusing to allow individuals who present themselves at POEs along the U.S.-Mexico border and assert their intention to apply for asylum or a fear of returning to their home countries to seek protection in the United States. Rule 12(b)(1) and Federal Court Jurisdiction Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court's lack of subject-matter jurisdiction. A defendant may challenge the court's subject-matter jurisdiction in several ways, two of which are raised by Defendants' motion to dismiss: mootness and sovereign immunity. Rule 12(b)(6) and the Sufficiency of the Complaint Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. A defendant may move to dismiss a complaint on the ground that its allegations fail to state a claim upon which relief may be granted. A Rule 12(b)(6) motion tests the sufficiency of a complaint's allegations. Mootness The Defendants assert that the Individual Plaintiffs have received all the relief the Court could have granted on their Section 706(1) claims: the verifiable opportunity to be processed as applicants for admission at a POE along the U.S.-Mexico border consistent with the INA's provisions. The Plaintiffs argue that the Section 706(1) claims are not moot because (1) Plaintiff Beatrice Doe has not been processed for admission and therefore has not actually received the relief and (2) the Individual Plaintiffs who have been processed for admission only received partial relief. This Case is Not Moot The Defendants' argument that this case is moot ignores organizational Plaintiff Al Otro Lado's presence in this case and the Individual Plaintiffs' other requests for relief. A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. Setting aside whether the Individual Plaintiffs' Section 706(1) claims are moot, this case is not moot given that it remains possible for the Court to grant effectual relief to Al Otro Lado and the Individual Plaintiffs. Al Otro Lado Al Otro Lado is a non-profit that provides services to indigent deportees, migrants, refugees, and their families in Los Angeles, California and Tijuana, Mexico. Its core mission is, inter alia,to coordinate and provide screening, advocacy, and legal representation for individuals in asylum and other immigration proceedings. As a result of CBP officers' conduct at POEs along the U.S.-Mexico border since 2016, Al Otro Lado alleges that it has diverted significant time and resources from its L.A. operations and its non-refugee programs to send representatives to Tijuana to provide individualized assistance and coordination of legal and social services, including individual screenings and in-depth trainings to educate asylum seekers about CBP's alleged conduct of denying the most basic form of access to the asylum process. These alleged harms are sufficient for Article III standing. Accordingly, Al Otro Lado has an interest in this case that is not mooted by the Defendants' post-Complaint conduct. The Individual Plaintiffs' Other Claims for Relief The Defendants' argument cannot show that this entire case is moot because it conflates whether the Complaint plausibly shows the existence of a policy with whether the Complaint plausibly shows the existence of a practice. As the Court later explains, although the Complaint fails to show the existence of a policy, it plausibly shows the existence of a pattern or practice of denials faced by some asylum seekers. Accordingly, the Court cannot find that this entire case is moot by virtue of Defendants' agreement to process the Individual Plaintiffs. The Section 706(1) Claims Are Not Moot Al Otro Lado's APA Claims The specific INA provisions in this case evince a congressional intent that aliens including those arriving at POEs and those facing expedited removal have an opportunity to have the merits of his or her claim promptly assessed by officers. Al Otro Lado alleges that part of its mission is to serve and represent asylum and refugee seekers. In furtherance of this mission, Al Otro Lado established and operates its Refugee Program in Tijuana, Mexico, which services individuals who wish to seek asylum in the United States. The alleged conduct of CBP officers has caused Al Otro Lado to expend significant time and resources to assist asylum seekers in responding to CBP officials' alleged conduct of foreclosing even the most basic aspect of the INA's asylum procedures the opportunity to be processed in the first place. This Court finds Al Otro Lado's interests in this case are related to the basic purposes of the INA`s goal of permitting aliens to apply for asylum in the United States at POEs and not so marginally related that its interests fall outside the INA's zone of interests. Accordingly, the Court rejects the Defendants' challenge to Al Otro Lado's INA-based claims. The Individual Plaintiffs' Other Claims for Relief Even on the merits, Defendants' argument cannot show that this entire case is moot because it conflates whether the Complaint plausibly shows the existence of a policy with whether the Complaint plausibly shows the existence of a practice. As the Court later explains, although the Complaint fails to show the existence of a policy, it plausibly shows the existence of a pattern or practice of denials faced by some asylum seekers. Accordingly, the Court cannot find that this entire case is moot by virtue of Defendants' agreement to process the Individual Plaintiffs. The Individual Plaintiffs' Section 706(1) Claims Five of the six Individual Plaintiffs have received the requested relief from Defendants' agreement to process these "class representatives and their children" at POEs. Thus, their Section 706(1) claims are moot unless an exception applies. Plaintiffs contend, however, that the Section 706(1) claim of Beatrice Doe is not moot because she has not "actually received" the relief provided in the agreement. (ECF No. 143 at 11.) The Court does not share Plaintiffs' view. The Defendants possess the authority to direct CBP officials to process aliens who present themselves at POEs along the U.S.-Mexico border in accordance with the requirements of the INA and implementing regulations. The Defendants' agreement to exercise that authority occurred a mere two days after the filing of the Complaint and only when confronted with the possibility that Plaintiffs would file an ex parte request for a temporary restraining order that all Individual Plaintiffs be processed at a POE. Under these circumstances, the Court is convinced that the Section 706(1) claims the Individual Plaintiffs assert on behalf of themselves and the putative class fall within an exception from mootness. Sovereign Immunity The Defendants' motion to dismiss also raises the issue of sovereign immunity. The United States, as a sovereign, is immune from suit unless it has waived its immunity. Thus, consistent with sovereign immunity and any waiver of it, a court may only exercise jurisdiction over claims against the United States within the parameters set by Congress. The APA Supplies the Relevant Waiver Claims asserted pursuant to the APA must satisfy Section 702's agency action requirement and the further requirement under Section 704 of the APA that a plaintiff must identify a final agency action to obtain judicial review. Apart from Section 702's judicial review provision for APA claims is the APA's waiver of sovereign immunity, also located in Section 702. The waiver provides that: an action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity shall not be dismissed nor relief therein be denied on the ground that it is against the United States. This waiver of sovereign immunity was enacted as a 1976 amendment to the APA, which aimed to clear up a morass of federal sovereign immunity jurisprudence and aimed to broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment. Unlike Section 702's judicial review provision, which is textually limited to agency action, Section 702's waiver of sovereign immunity contains no such textual limitation. Accordingly, as amended, the APA waives sovereign immunity broadly for all causes of action that meet its terms irrespective of whether the claims satisfy the APA's requirements for judicial review of an agency action. Thus, a plaintiff need only seek nonmonetary relief against the government in order to avail himself of the APA's waiver of sovereign immunity. In this case, Plaintiffs invoke the APA's waiver and seek only non-monetary relief against Defendants, based on claims regarding the purported actions and failures to act of CBP officials and the named Defendants. Accordingly, the Plaintiffs' claims for relief fall squarely within the broad waiver of sovereign immunity reflected in Section 702. The APA's Waiver Extends to Plaintiffs' ATS Claims The APA's waiver of sovereign immunity also resolves one of the Defendants' challenges to the Plaintiffs' ATS claims. The Complaint alleges ATS claims against the Defendants for violation of the non-refoulement doctrine under international law. The Defendants argue that the ATS does not constitute a waiver of sovereign immunity and therefore does not create a cause of action against the government. Defendants thus appear to suggest that this Court lacks jurisdiction over the ATS claims asserted against the Defendants as a matter of sovereign immunity. The Defendants are correct that the ATS does not waive the sovereign immunity of the United States. The ATS provides only that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The text of the ATS says nothing about sovereign immunity and, thus, it cannot be construed as a waiver. The Complaint States Section 706(1) Claims for Unlawfully Withheld Access to the U.S. Asylum Process Section 706(1) grants a court authority to compel agency action unlawfully withheld. Under this provision, a court's ability to compel agency action is carefully circumscribed to situations where an agency has ignored a specific legislative command. The gravamen of the Plaintiffs' Section 706(1) claims is that CBP officials failed to take actions that the INA requires when a noncitizen asserts an intent to seek asylum. The Complaint grounds these claims in various statutory and regulatory provisions, including 8 U.S.C. There is no dispute between the parties regarding the sufficiency of the Individual Plaintiffs' Section 706(1) claims under these provisions. The Defendants agree that APA relief under section 706(1) is an appropriate remedy for the failures to act the Individual Plaintiffs allege. These concessions buttress the Court's conclusion that Plaintiffs have stated Section 706(1) claims for discrete and legally required agency actions. The Putative Class and Practice Allegations The Defendants readily concede that the Complaint identifies incidents in which asylum seekers who presented themselves at POEs along the U.S.-Mexico border have been denied access to the asylum process. Even in the absence of Defendants' concession, the Complaint incorporates numerous reports from non-governmental organizations operating in the U.S.-Mexico border region, which document hundreds of examples of asylum seekers who CBP officials denied access to the U.S. asylum process. While Defendants may seek to minimize those allegations by selectively casting doubt on the reliability of those portions of the reports that reflect negatively on CBP and by characterizing the reports as showing only an alleged 1.6% denial rate, the volume of denials is irrelevant to whether the Complaint concretely alleges that other individuals have been subjected to the same alleged failures to act by CBP officials. The Complaint plainly alleges such failures, which the Court is required to take as true at this stage. Because the Individual Plaintiffs have standing in their own right to seek Section 706(1) relief to compel the Defendants to inspect and process them for admission, they may request that relief for a putative class of others asylum seekers who have allegedly experienced the same failures to act. Accordingly, the Court rejects the Defendants' challenge to the Complaint's practice allegations, which are merely a feature of the class action nature of this case. The Complaint Fails to State a Section 706(1) Claim for Relief Pursuant to 8 C.F.R. Section 235.4 The Plaintiffs A.D., B.D., and C.D. each allege that on of one of the occasions they sought asylum, CBP officials coerced them to into signing documents which stated that they lacked a fear of persecution. A.D. and C.D. further allege that CBP officials forced them to recant their fears in video recorded statements. They further refer to their allegations regarding CBP's alleged coercion of certain Individual Plaintiffs in discussing their Section 706(1) claims. Both sides further agree that the law requires an alien's decision to withdraw his or her application for admission be voluntary under 8 C.F.R. Section 235.4. That the parties agree on the text of the INA's provisions and certain implementing regulations, however, does not mean that the Court in fact has authority to provide Section 706(1) relief based on 8 C.F.R. Section 235.4. The Court concludes that it does not. The Complaint Fails to State a Section 706(2) Claim Regarding Defendants' Alleged Policy The Complaint alleges that CBP officials have systematically prevented asylum seekers arriving at POEs along the U.S.-Mexico border from accessing the U.S. asylum process since summer 2016. Plaintiffs allege that this conduct has been documented in hundreds of cases at POEs along the border. The bulk of Defendants' motion to dismiss concerns whether Plaintiffs have stated a Section 706(2) claim regarding an alleged policy of the Defendants to deny asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the asylum process. Defendants argue that while the Complaint does not expressly seek judicial review of a final agency action, it alleges that CBP has adopted an officially sanctioned policy'. Defendants contend that to the extent the Court construes those references as a request for judicial review of an alleged unlawful policy under the APA pursuant to Section 706(2), the Court should dismiss that request because: (1) Plaintiffs fail to identify an agency action and, even if Plaintiffs have done so, (2) the Complaints fails to show a final agency action. The Complaint Does Not Identify a Final Agency Policy The Complaint contains a single allegation that Defendants have an officially sanctioned policy of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum process. The only formulation of the alleged policy suggested by Plaintiffs is that CBP officials have a categorical policy of denying asylum seekers who present themselves at POEs along the U.S.-Mexico border access to the U.S. asylum system. A further variant of this policy is one in which CBP officials deny access through tactics of misrepresentations, harassment, coercion, threats, and physical violence. But the Court cannot locate a single agency action reflecting Defendants' alleged policy, let alone one that is final. The Court grants in part the Defendants' motion to dismiss and dismisses without prejudice: (a) Plaintiffs A.D, B.D., and C.D.'s claims under Section 706(1) only insofar as they have sought to compel agency action under 8 C.F.R § 235.4, and (b) all the Plaintiffs' claims under Section 706(2) regarding Defendants' alleged policy. The Court denies on all other grounds the Defendants' motion. A full-text copy of the District Court's August 20, 2018 Order is available at https://tinyurl.com/yd74pcyd from Leagle.com. Al Otro Lado, Inc., a California corporation, Abigail Doe, individually and on behalf of all others similarly situated, Beatrice Doe, individually and on behalf of all others similarly situated, Carolina Doe, individually and on behalf of all others similarly situated, Dinora Doe, individually and on behalf of all others similarly situated, Ingrid Doe, individually and on behalf of all others similarly situated & Jose Doe, individually and on behalf of all others similarly situated, Plaintiffs, represented by Michaela R. Laird -- michaela.laird@lw.com -- Latham & Wakins, LLP, Robin Kelley -- robin.kelley@lw.com -- Latham & Watkins LLP, Angelo R. Guisado -- aguisado@ccrjustice.org -- Center for Constitution Rights, pro hac vice, Baher Azmy -- bazmy@ccrjustice.org -- The Center for Constitution Rights, pro hac vice, Faraz R. Mohammadi -- faraz.mohammadi@lw.com -- Latham & Watkins LLP,Ghita R. Schwarz -- gschwarz@ccrjustice.org -- Center for Constitution Rights, pro hac vice, Karolina J. Walters -- kwalters@immcouncil.org -- American Immigration Council, pro hac vice, Kathryn E. Shepherd -- kshepherd@immcouncil.org -- American Immigration Council, pro hac vice, Melissa E. Crow -- mcrow@immcouncil.org -- American Immigration Council, pro hac vice, Wayne S. Flick -- wayne.s.flick@lw.com -- Latham and Watkins LLP & Manuel A. Abascal -- manny.abascal@lw.com -- Latham & Watkins LLP. Kevin K. McAleenan, Acting Commissioner, United States Customs and Border Protection, in his official capacity & Todd C. Owen, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity, Defendants, represented by Alexander James Halaska , U.S. Department of Justice Office of Immigration Litigation, Gisela Ann Westwater , US Department of Justice, Brian Ward , U.S. Department of Justice Office of Immigration Litigation, Danielle K. Schuessler , Civil Division - Office of Immigration Litigation,Genevieve Kelly , Genevieve M. Kelly , US Department of Justice Office of Immigration Litigation, Civil Division, Sairah G. Saeed , USDOJ Civil Division - Office of Immigration Litigation, Civil, OIL, DCS & Yamileth G. Davila , United States Department of Justice. Todd C. Owen, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity, Defendant, represented by OIL-DCS Trial Attorney, Office of Immigration Litigation. Kirstjen Nielsen, Acting Secretary, U.S. Departmernt of Homeland Security, Defendant, represented by Alexander James Halaska , U.S. Department of Justice Office of Immigration Litigation, Gisela Ann Westwater , US Department of Justice, Brian Ward , U.S. Department of Justice Office of Immigration Litigation, Danielle K. Schuessler , Civil Division - Office of Immigration Litigation, Genevieve M. Kelly , US Department of Justice Office of Immigration Litigation - Civil Division, Sairah G. Saeed , USDOJ Civil Division - Office of Immigration Litigation, Civil, OIL, DCS & Yamileth G. Davila , United States Department of Justice. Kirstjen Nielsen, Acting Secretary, U.S. Departmernt of Homeland Security, Defendant, represented by OIL-DCS Trial Attorney, Office of Immigration Litigation. VCG HOLDING: Court Certifies Question on Arbitration Nonsignatory ----------------------------------------------------------------- The United States District Court for the District of Colorado granted in part and denied in part Plaintiffs' Motion to Certify Questions to Colorado Supreme Court in the case captioned GEORGINA SANTICH, JANEL ANDERSON, JESSICA SAULTERS ARCHULETTA, ADRIANNE AXELSON, EMILY BACHELDER, ALENA BAILEY, RACHEL BERRY, NICOLE BUJOK, BRANDI CAMPBELL, TALITA CATTO, MELISSA CHAVEZ, ARIEL CLINE, MEGAN FITZGERALD, AMANDA GABRIEL, AMY GLINES, JOHANNA GRISSOM, AMANDA LIVINGSTON, ARIELLE MANSFIELD, CHADA MANTOOTH, KARLA MARTINEZ, CHRISTINA MASSARO, ALEXIS NAGLE, LAPORTIA OAKLEY, GALE RAFFAELE, AMRICA TERRELL, PENNY WATKINS, CASANDRA WINDECKER, MELANIE TRACY, PORSCHA GREEN, AMANDA SHAFER, ASHLEY WOZNEAK, REBECCA RAIL, ANDREA ABBOTT, and KIMBERY HALE, all individually and on behalf of all others similarly situated, Plaintiffs, v. VCG HOLDING CORP., LOWRIE MANAGEMENT, LLLP, TROY LOWRIE, MICHAEL OCELLO, DENVER RESTAURANT CONCEPTS LP d/b/a PTs Showclub, KENKEV II, INC. d/b/a PTs Showclub Portland, INDY RESTAURANT CONCEPTS, INC. d/b/a PTs Showclub Indy, GLENARM RESTAURANT, LLC d/b/a Diamond Cabaret, GLENDALE RESTAURANT CONCEPTS, LP d/b/a The Penthouse Club, STOUT RESTAURANT CONCEPTS, INC. d/b/a La Boheme, and VCG RESTAURANTS DENVER, INC. d/b/a PT's All Nude, Defendants, Civil Action No. 17-cv-00631-RM-MEH (D. Colo.). This matter is before the Court on the Recommendation of United States Magistrate Judge Michael E. Hegarty on "Defendants' Motion to Stay or Dismiss Proceedings Pursuant to Sections 3 and 4 of the Federal Arbitration Act, to Compel Plaintiffs[] to Arbitration, and to Strike Class and Collective Action Allegations." In the Recommendation, the Magistrate Judge recommended granting Defendants VCG Holding Corp., Lowrie Management, LLLP, and Denver Restaurant Concepts LP d/b/a PTs Showclub's Motion to Compel; ordering the Plaintiffs to arbitrate; severing the fee-shifting provisions in certain agreements between some of the parties; and allowing two nonsignatory Defendants (VCG and Lowrie) to enforce these agreements. The Plaintiffs, women working as dancers in adult entertainment establishments, are independent contractors or employees, notwithstanding the Plaintiffs having signed documents allegedly electing to be independent contractors and titled as an Entertainment Lease (Leases). The Plaintiffs allege the Defendants engaged in various wrongful actions, such as denying them earned minimum wages, overtime pay, and the full retention of their tips; charging them fees to work; and subjecting them to fines. Plaintiffs' Objection - General The Plaintiffs assert the Magistrate Judge made three errors of law. Specifically, the Plaintiffs argue that, contrary to the recommendation: (1) this court, not an arbitrator, must decide whether the arbitration clause11 is enforceable; (2) the unconscionable cost-sharing and fee-shifting provisions invalidate the Leases in their entirety, including the arbitration clauses at issue; and (3) Defendants VCG and Lowrie, as nonsignatories to the Leases, may not enforce the arbitration clause. As such, the Plaintiffs argue, this Court should reject the Recommendation. Matters to which an objection has been filed. Who decides arbitrability? The Arbitrator. The Plaintiffs assert that this Court should decide whether the arbitration clause is enforceable. Here, the Plaintiffs argue, their procedural and substantive unconscionability arguments specifically challenged the delegation clause; that those arguments also applied to the Lease or arbitration clause as a whole is irrelevant. Procedural Unconscionability. The Plaintiffs contend they did challenge the delegation clause, which challenge they assert included also applied to the Lease and arbitration clause also. The Court's review, however, shows the opposite: Plaintiffs challenged the arbitration clause and Lease as a whole, which challenge they asserted included the delegation clause. The fact that such challenge includes the delegation clause and all other clauses, however, is insufficient, as the Magistrate Judge correctly recognized in reliance on Rent-A-Ctr.561 U.S. at 73. Substantive Unconscionability The Plaintiffs assert they challenged the delegation clause as substantively unconscionable as they argued that if the delegation provision were enforced, they would not be able to effectively vindicate their rights due to the fee-shifting and cost-sharing provisions. The Magistrate Judge construed this argument as specifically challenging the delegation clause under the effective vindication doctrine and analyzed it under such doctrine. The Court's review shows the Plaintiffs did make the argument asserted, but as an effective vindication challenge rather than a substantive unconscionability argument. Here, the Plaintiffs' Response to the Motion to Compel shows they argued the fee-shifting and cost-sharing provisions rendered the arbitration clause (rather than the delegation clause) unconscionable, and they considered a challenge to the arbitration clause to be a specific challenge to the delegation clause. This finding is also supported by Plaintiffs' reliance on the alleged costs of vindicating their entire dispute, not the cost of arbitrating arbitrability, to support unconscionability. Accordingly, having failed to challenge the delegation provision as substantively unconscionable, arbitrability is for an arbitrator to decide. Severability of Cost-Sharing and Fee-Shifting Provisions? They are severable. The Magistrate Judge recommended finding that the cost-sharing and fee-shifting provisions thwart effective vindication of Plaintiffs' ability to pursue their claims; therefore, such provisions are unenforceable. The Defendants, on the other hand, argue that the Plaintiffs cannot show the Magistrate Judge's reasoning was clearly erroneous or contrary to law, but does not dispute that Colorado law applies. In addition, the Defendants assert that, although not required by binding precedent, the Magistrate Judge found the cost-sharing and fee-shifting provisions were not part of an integrated scheme to prevent the Plaintiffs from exercising their rights. Finally, the Defendants contend the issue of severability is neither novel nor unsettled in Colorado; therefore, certification should not be had. The unenforceable provisions are severable The Plaintiffs argue that Colorado law applies, but their Response to the Motion to Compel never so argued. Instead, while the Response cites to some general Colorado law, it is replete with citations to decisions rendered in other jurisdictions. The severability of the cost-sharing and fee-shifting provisions is further reinforced by the fact that the Leases have severability or savings clauses, a matter not at issue in Reilly or Jones and not addressed in Section 184 of the Restatement. And, under Colorado law, in order to determine whether a contract is severable the primary objective is to ascertain the intent of the contracting parties. Although these Colorado cases go on further to discuss gleaning the parties' intent from the terms and provisions of the contract in light of the surrounding circumstances, they did so where there was no severability or savings clause. Here, however, the Court needs to look no further than the Leases to determine the parties' intent as the Leases contain express provisions unambiguously requiring severability. Mreover, even assuming, arguendo, further examination is required even where the agreement contains a severability or savings clause, the Court also finds that the provisions are not inextricably intertwined with the other terms and conditions of the Leases, and that their severance would not effectively eviscerate the bargain entirely between the parties. As such, the Court agrees with the Magistrate Judge's determination and recommendation that the provisions are severable. No Certification The Court agrees with the Defendants and finds that the issue of severability need not be certified to the Colorado Supreme Court. Whether to certify a question of state law to the state supreme court is within the discretion of the federal court. Certification may be appropriate where the legal question at issue is novel and the applicable state law is unsettled. Certification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law. In this case, the Court finds the issue of severability is not novel or unsettled such that certification is warranted. Accordingly, Plaintiffs' alternative request for certification is denied. Enforcement of Arbitration Agreement by Nonsignatory Defendants The Magistrate Judge determined that whether nonsignatory Defendants VCG and Lowrie may enforce the arbitration clause was a question for the court and that Colorado law applies to this issue. As no party objects, the Court assumes it is so. With this premise, in reliance on Meister v. Stout, 353 P.3d 916 (Colo. App. 2015) and Pollard v. ETS PC., Inc. 186 F.Supp.3d 1166 (D. Colo. 2016), the Magistrate Judge recommended finding the nonsignatory Defendants may compel arbitration because Plaintiffs' claims against the signatory Defendants are interdependent with those against the nonsignatory Defendants, and the claims are intertwined with duties and obligations in the Leases. The Plaintiffs' challenge here is as follows. First, Plaintiffs contend this Court should certify to the Colorado Supreme Court the issue of whether nonsignatories to an agreement must show reliance to compel signatories to arbitration under the equitable estoppel doctrine. Second, alternatively, according to Plaintiffs, reliance on the terms or obligations of the Lease is key to the application of equitable estoppel but, here, Plaintiffs assert, they do not rely on such terms or obligations; instead, their claims allegedly seek to defeat or are in conflict with them. The Defendants, in response, assert Plaintiffs' argument that a showing of reasonable reliance is required was not raised in their Response to the Motion to Compel, or any other time; therefore, Defendants assert, such argument is waived. The Defendants contend that, even if not waived, Plaintiffs fail to show the Magistrate Judge's reliance on Meister and Pollard was clearly erroneous or contrary to law. Further, Defendants argue the issue has already been decided in Pollard, even if it is a federal court decision, so certification should not be had. As to Plaintiffs' second argument, Defendants contend that the provisions of the Leases will be informative and necessary for any fact finder to determine the validity of the Leases and the parties' intended relationship, as well as to the reformation of the relationship should that be required. Defendants also assert that the arbitration clauses require arbitration against the club and any other persons or entities associated with the club. The Defendants argue, the nonsignatory affiliated Defendants can compel arbitration with the signatory Defendants. The Defendants' primary argument directed against certification is that the issue of what principles should apply has already been decided by a federal court via Pollard. While it is true that the issue has been decided by courts in this District in reliance on Meister, it is nonetheless the pronouncement of state law by the Colorado Supreme Court, not Colorado's intermediate appellate court or another federal district court, which this Court must follow. In the absence of a state supreme court ruling, a federal court must follow an intermediate state court decision unless other authority convinces the federal court that the state supreme court would decide otherwise. In this District, the courts which have decided the issue have found Meister persuasive and predicted that the Colorado Supreme Court would follow the rationale in that decision. Plaintiffs' briefings raise issues which, upon the Court's review of controlling U.S. Supreme Court and Colorado Supreme Court decisions, persuade this Court that the question of whether reliance is required in order for a nonsignatory to invoke equitable estoppel against signatories should be resolved by the Colorado Supreme Court. As it currently stands, Meister fails to address this issue and the Court is unclear whether this element is required under Colorado law. This issue of law may be determinative of whether the nonsignatory Defendants may equitably estop Plaintiffs from pursuing their case before this court and there is no controlling precedent in the decisions of the Colorado Supreme Court. Accordingly, the Court will certify the following question to the Colorado Supreme Court: What elements must be established by a nonsignatory to an arbitration agreement in order for the doctrine of equitable estoppel to apply and thereby require a signatory to an arbitration agreement to arbitrate claims brought against a nonsignatory? A full-text copy of the District Court's August 20, 2018 Order is available at https://tinyurl.com/y76qbl9r from Leagle.com. Georgina Santich, individually and on behalf of all others similarly situated, Plaintiff, represented by Andrew Joseph McNulty -- AMcNulty@KLN-law.com -- Killmer, Lane & Newman, LLP, Darold W. Killmer -- dkillmer@kln-law.com -- Killmer, Lane & Newman, LLP, Liana Gerstle Orshan -- LOrshan@KLN-law.com -- Killmer Lane & Newman, LLP & Mari Anne Newman -- mnewman@kln-law.com -- Killmer, Lane & Newman, LLP Amanda Livingston, Rebecca Rail, Amanda Gabriel, Casandra Windecker, Gale Raffaele, Adrianne Axelson, Amanda Shafer, Brandi Campbell, Penny Watkins, Amanda Mansfield, Emily Bachelder, Amrica Terrell, Melanie Tracy, Ashley Wozneak, Laportia Oakley, Alexis Nagle, Janel Anderson, Porscha Green, Johanna Grissom, Karla Martinez, Amy Glines, Chada Mantooth, Ariel Cline, Alena Bailey, Jessica Saulters-Archuleta, Melissa Chavez, Talita Catto, Megan Fitzgerald, Christina Massaro, Andrea Abbott, Nicole Bujok, Rachel Berry & Kimberly Hale, Plaintiffs, represented by Liana Gerstle Orshan , Killmer Lane & Newman, LLP & Mari Anne Newman , Killmer, Lane & Newman, LLP. VCG Holding Corp., Lowrie Management, LLLP & Denver Restaurant Concepts LP, doing business as, Defendants, represented by Allan Stephen Rubin -- Allan.Rubin@jacksonlewis.com -- Jackson Lewis, P.C., Melisa Hallie Panagakos -- Melisa.Panagakos@jacksonlewis.com -- Jackson Lewis, P.C. & Ryan Paul Lessmann -- Ryan.Lessmann@jacksonlewis.com -- Jackson Lewis, P.C. Troy Lowrie, Michael Ocello, Kenkev II, Inc., doing business as, Indy Restaurant Concepts, Inc., doing business as, Glenarm Restaurant LLC, doing business as, Glendale Restaurant Concepts LP, doing business as, Stout Restaurant Concepts, Inc., doing business as & VCG Restaurants Denver, Inc., doing business as, Defendants, represented by Melisa Hallie Panagakos , Jackson Lewis, P.C. & Ryan Paul Lessmann , Jackson Lewis, P.C. VS NESHAMINY: Slivak Suit Asserts ADA Breach -------------------------------------------- A class action lawsuit has been filed against VS Neshaminy LLC and Palladino Development Group, Inc. The case is titled JESSICA SLIVAK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. VS NESHAMINY LLC and PALLADINO DEVELOPMENT GROUP, INC., Case No. 2:18-cv-03624-PBT (E.D. Pa., August 24, 2018). The Plaintiff filed the case under The Americans with Disabilities Act of 1990. VS Neshaminy LLC is a domestic limited liability company with a registered address in Holland, Pennsylvania. Palladino Development Group, Inc., is a real estate firm.[BN] The Plaintiff is represented by: Arkady Eric Rayz, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 Facsimile: (215) 364-5029 E-mail: erayz@kalraylaw.com [*] NLRB Might Strengthen Class Action Waivers ---------------------------------------------- Hassan A. Kanu at bna.com reports that a recent National Labor Relations Board decision could be the starting point for expanding the U.S. Supreme Court's ruling that employers can ban workers from filing class actions. The board reopened a case in which it found a Texas restaurant violated labor law by firing a worker for filing a collective wage and hour lawsuit against the company. The NLRB's Republican majority cited the high court's ruling in Epic Systems v. Lewis as the basis for giving the Texas case another look. The justices in Epic Systems said businesses can include mandatory arbitration provisions and class action waivers in their employment contracts. The board issued the 3-2 decision without being asked by the restaurant to revisit the case. The move indicates that some members may want to reconsider whether an employer can fire or otherwise discipline a worker for the very act of filing a class action. Allowing discipline for filing a class action would give employers more power in enforcing class action waivers. Critics are concerned it would also further limit workers' ability to individually enforce their own workplace rights following the Epic Systems decision. It's possible the board will maintain the current rule but add exceptions, Trang Tran, the lawyer representing the workers who filed the case against Cordua Restaurants Inc., told Bloomberg Law Aug. 21. The board may continue to ban employers from disciplining workers for filing class wage and hour actions, but allow them to take disciplinary action against a worker who simply threatens supervisors with a lawsuit beforehand, Tran said. The board hasn't formally begun reconsidering the case and arguments from both parties. An NLRB spokeswoman didn't immediately respond to Bloomberg Law's request for comment. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***