/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180911.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 11, 2018, Vol. 20, No. 182 Headlines 149 STREET FOOD: Fails to Pay Overtime Under FLSA, Rodriguez Says ACCOUNTS SERVICES: Violates Fair Debt Collection Act, Lopez Says AGRO CHEMICAL: Faces Garcia Class Suit in Calif. Superior Court AIR EVAC: 8th Cir. Affirms Dismissal of Ferrell's ATDPA Suit ALINES AMERICAN: Moderno Labor Suit Seeks to Recover Overtime Pay AMBIT ENERGY: Court Grants Final Approval of $9.3MM Settlement AMBIT NORTHEAST: $1.45MM Class Settlement Has Final Approval AMERICA HONDA: Bovgirya's TCCWNA Suit Remanded to State Court AMICI 519: Court Denies Bid to Partially Dismiss Uraga's FLSA Suit AP PREFERRED: Marmier-Romeo Action Seeks to Recover Overtime Pay APPLE INC: Seeks Dismissal of Class Action Over Cracked Watches AT&T MOBILITY: Judge Certifies Customers Class in Roaming Fees Suit BANK OF AMERICA: Nov. 8 ISDAfix Settlement Approval Hearing Set BANK OF AMERICA: Pastor Class Settlement Has Prelim Approval BAYER: Women in Australia to Join Class Action Over Essure BEST BUY: Court Denies Class Certification on Harris's Wage Suit BRAMBLES: Faces 2nd Class Action Over Share Price Plunge BRIGHTSTAR GROUP: Diaz Suit Asserts ADA Violation BROOKLYN GASTROENTEROLOGY: Picon Suit Asserts ADA Violation CARDINAL INNOVATIONS: Settles Class Action Over Unpaid OT Wages CENTERPOINTE LENDING: Milosch Suit Alleges TCPA Violation CENTRAL MAINE: Faces Class Action Over Alleged Fraud CHECK-6 INC: Faces Goodly Suit in East. Dist. Louisiana CHICAGO: Police Keeps Discriminatory Database, Says Suit CHICKPEA AT 14TH: Pacheco Suit Seeks Civil Damages CINEMARK USA: Court Certifies Class in Overtime Rates Suit COGNIZANT TECHNOLOGY: Robbins Arroyo Probes Securities Claims COMMONWEALTH FINANCIAL: Sellers Sue Over FDCPA Violations CREDIT PROTECTION: Accused by Friedman Suit of Violating FDCPA CVS PHARMACY: Averts Class Action over Flu Shot Text Messages CVS PHARMACY: Court Won't Certify Pharmacy Technicians' Class DESERT DE ORO: Gauntt Suit Seeks to Recover Unpaid Wages Under FLSA DIVERSIFIED CONSULTANTS: Weiss Files FDCPA Breach Suit in N.Y. DIVINE AND SERVICE: Nicolaides Sues Over FDCPA Violations EATON CORP: Court Dismisses 2nd Amended Securities Suit ESTES FORWARDING: Faces Kirkland Suit in Calif. Superior Court EXXON MOBIL: Bid to Dismiss Climate-Change Accounting Case Tossed EZCORP INC: J. Rooney Can File TAC in Securities Suit FBCS INC: Violates Fair Debt Collection Act, Sellers Suit Says FIRSTMARK SERVICES: Can't Compel Arbitration in Goden's Suit FORD MOTOR: Kessler Topaz Files Class Action Over Water Pumps FOUNDATION MEDICINE: Bid to Drop Mahoney Class Suit Still Ongoing GENERAL MOTORS: Faces Class Action Over Air Conditioning Problems GOLDEN GATE: Blumenthal Nordrehaug Files Class Action GOLDMAN SACHS: Shareholders Can Pursue Class Action Over CDOs GUARDIAN PROTECTION: 3rd Cir. Remands UTPCPL Class Suit HAWAII: Fullum Files Suit vs. Department of Education HUDSON FURNITURE: Picon Files Suit Asserting ADA Violation HUDSON THEATRE: Violates Disabilities Act, Castillo Suit Claims IMC CREDIT SERVICES: Sheets Suit Disputes Collection Letter INGLOT USA: Diaz Files Suit in N.Y. Over ADA Breach INTERIM HEALTHCARE: Faces Diaz Suit Asserting ADA Violation IRVING LANGER: Court Denies Partial Dismissal of Contrera's Suit KING COUNTY, WA: Court Flips Dismissal of Tenants' Suit KNORR-BREMSE AG: Lonergan Files Antitrust Class Suit in Maryland KROGER CO: Violates Disabilities Act, Diaz Class Suit Alleges LIBERTY TRANSPORTATION: Dismissal of Truck Drivers' Suit Suggested LM FUNDING: Court OKs Revised Solaris Class Action Settlement LONDON GOLD: UBS Dropped as Defendant in Gold Fixing Suit LONDON SILVER: Non-Fixing Banks Dismissed From Antitrust Suit LYRIC THEATRE: Faces Castillo ADA Suit in S.D.N.Y. MAIDS INTERNATIONAL: Faces Diaz ADA Suit in S.D. New York MANHATTAN MUSIC: Violates Disabilities Act, Reyes Suit Alleges MERCURY EAST: Castillo Suit Asserts ADA Violation MICHAEL KORS: Wage Class Action Heading to Individual Arbitration MIDCAP FINANCIAL: Garcia Class of Drivers Conditionally Certified MINNESOTA: Minnesota Supreme Ct. Flips Cruz-Guzman Suit Dismissal MONTEREY FINANCIAL: Can Compel Arbitration in Garrett's FDCPA Suit NATIONAL GAS: Court Dismisses Johansen's TCPA Suit NAVIENT SOLUTIONS: Can't Compel Arbitration in Homaidan's Suit NEW HORIZON'S: Kurdinat Files FLSA Suit Over Unpaid Wages NIKE INC: Faces Class Action Over Toxic Workplace Behavior ONE ON ONE: Violates Disabilities Act, Diaz Class Suit Claims OPEN DOOR: Court Orders Supplemental Brief in Conde's FLSA Suit OPUS BANK: Cal. App. Affirms Judgment in Flores's Suit PERRIGO CO: Bid to Dismiss Consolidated Suit Granted in Part PIPEFITTERS ASSOC: Summ. Judgment Bid in Porter Suit Partly OK'd PLS CHECK: 9th Cir. Affirms Dismissal of P. Rangel's FLSA Suit PORTFOLIO RECOVERY: Benchemhoun Files Suit Over FDCPA Violation PORTFOLIO RECOVERY: Tucker Suit Alleges FDCPA Breach REMINGTON ARMS: 8th Cir. Affirms Final OK of Deal in Pollard's Suit RIPPLE LABS: Plaintiff's Bid to Keep Class Action in Calif. Nixed SOLOW BUILDINGS: Faces Fischler ADA Suit in New York SOUTH PARK: Davis Suit Seeks to Recover Lost Wages SOUTHWEST CREDIT: Faces Cirruzzo Suit Alleging FDCPA Violations SPEAR CENTER: Sued by Diaz in N.Y. for Violating Disabilities Act ST. JUDE MEDICAL: Stikeman Elliott Attorneys Discuss Court Ruling SUNRUN INC: Agreement in Principle Reached in Fink Suit SUNRUN INC: Agreement in Principle Reached in State Court Suit SUNRUN INC: Bid for Initial Approval of Slovin Accord Underway TDS TELECOM: Faces Tucker Suit in N. Dist. Georgia TESLA INC: Faces 3rd Class Action Over Elon Musk's Stock Tweets TESLA INC: Oct. 9 Lead Plaintiff Motion Deadline Set TIGER BRANDS: Two Listeriosis Class Actions Combined Into One TLC RESORTS: Court Compels Arbitration in Augustine's TCPA Suit TRAK-1 TECHNOLOGY: Wright Files Suit in S.C. Over FCRA Violation TROPICAL CHINESE: Jianbo Sues Over Unpaid Min., Overtime Wages ULTHERA INC: Court Denies Bid to Dismiss Tryan's CLRA Suit UNITED PARCEL: Court Approves Hoffman-Na Roche Notice in FLSA Suit UNITED STATES: Judge Certifies Class of Cambodian Refugees UNITED STATES: Lewis and Clark County Joins PILT Class Action UNITYPOINT HEALTH: Class Action Amended to Cover Second Breach US BANCORP: Faces Moret Suit FLSA Suit in Calif. US XPRESS: Court Partly Grants Bid to Dismiss Morgan's TCPA Suit VITALE'S III: Nyitray Files Suit Over Unpaid Wages VUZIX CORP: Faces Two Purported Class Suits in New York WAL-MART STORES: Court Narrows Claims in Pita Chips Suit WASHINGTON: Denial of Class Certification in Suit vs. DRS Flipped WEXLER DERMATOLOGY: Violates Disabilities Act, Picon Suit Says WILLIAMS & FUDGE: Violates Fair Debt Collection Act, Joseph Says YELP INC: Continues to Defend California Class Action [*] JND Legal Administration Acquires Lien Resolution Group ********* 149 STREET FOOD: Fails to Pay Overtime Under FLSA, Rodriguez Says ----------------------------------------------------------------- A class action lawsuit has been filed against 149 Street Food Corp., et al. The case is captioned as Anthony Rodriguez, on behalf of himself, individually, and on behalf of all others similarly-situated v. 149 Street Food Corp. d/b/a Fine Fare Supermarket; 675 Morris Ave Food Corp. d/b/a Fine Fare Supermarket; Franklin Pimentel, individually; Daisy Pimentel, individually; and Rigo Delgado, individually, Case No. 1:18-cv-07933 (S.D.N.Y., August 30, 2018). The Plaintiff alleges violations of the Fair Labor Standards Act resulting from denial of overtime compensation. 149 Street Food Corp. is a business based at 459 East 149th Street, in Bronx, New York. The Company does business as Fine Fare Supermarket, a retail food store.[BN] The Plaintiff is represented by: Michael John Borrelli, Esq. Law Offices Of Borrelli & Associates 655 Third Avenue, Suite 1821 New York, NY 10017 Tel: 212-679-5000 Fax: 212-679-5005 E-mail: mjb@employmentlawyernewyork.com ACCOUNTS SERVICES: Violates Fair Debt Collection Act, Lopez Says ---------------------------------------------------------------- A class action lawsuit has been filed against Accounts Services Collections, Inc. The case is captioned as Welquis R. Lopez, individually and on behalf of all others similarly situated v. Accounts Services Collections, Inc., Case No. 1:18-cv-00744 (W.D. Tex., August 30, 2018). The Plaintiff alleges violations of the Fair Debt Collection Practices Act. Accounts Services Collections, Inc., is a debt collection agency in San Antonio, Texas.[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 AGRO CHEMICAL: Faces Garcia Class Suit in Calif. Superior Court --------------------------------------------------------------- A class action lawsuit has been filed against Agro Chemical, Inc. The case is captioned as JAIME GARCIA, ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED v. AGRO CHEMICAL, INC., A CALIFORNIA CORPORATION, Case No. BCV-18-102162 (Cal. Super. Ct., Kern Cty., August 30, 2018). The lawsuit arises from employment-related issues.[BN] The Plaintiff is represented by: Douglas Han, Esq. JUSTICE LAW CORPORATION 411 N Central Ave., Suite 500 Glendale, CA 91203-2095 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com AIR EVAC: 8th Cir. Affirms Dismissal of Ferrell's ATDPA Suit ------------------------------------------------------------ The United States Court of Appeals, Eighth Circuit, affirmed the District Court judgment granting Defendant's Motion to Dismiss the case captioned James W. Ferrell, Individually and as Class Representative Plaintiff-Appellant, v. Air EVAC EMS, Inc. Defendant-Appellee. No. 17-2554. (8th Cir.). The district court dismissed all claims as pre-empted by the express pre-emption provision in the Airline Deregulation Act (ADA). James Ferrell checked into the emergency room at a hospital in Warren, Arkansas, experiencing chest pain. Staff arranged for Air EVAC EMS, Inc. (Air EVAC), an air-ambulance operator, to transport him by helicopter to another hospital forty-one miles away. A few months after the transport, Air EVAC sent Ferrell a bill for $30,083.26. His insurer, Arkansas Blue Cross, paid $1000.00, leaving him owing a balance of $29,083.26. Ferrell brought this putative class action against Air EVAC asserting three claims for relief under Arkansas law: (i) a declaratory judgment that any contract between Air EVAC and class members is unenforceable because it lacks an essential price term; (ii) damages under the Arkansas Deceptive Trade Practices Act for concealing or omitting disclosure of its price until it completes air-ambulance transport. Before Congress enacted the ADA in 1978, the Federal Aviation Act (FAA) authorized the Civil Aeronautics Board to regulate air carriers' fares and trade practices; a savings provision preserved preexisting statutory and common law remedies. The Supreme Court has interpreted and applied the ADA's pre-emption provision in three cases. In Morales, commercial airlines sued to enjoin state attorneys general from enforcing guidelines regulating airlines' fare advertising. The guidelines required clear and conspicuous disclosure of the terms on which particular fares were offered. Analogizing the ADA pre-emption provision to the similarly worded and deliberately expansive provision in the Employee Retirement Income Security Act, the Court held that state enforcement actions having a connection with or reference to airline rates, routes, or services' are pre-empted. The Court observed: One cannot avoid the conclusion that the advertising restrictions in] the guidelines relate to airline rates. Beyond the guidelines' express reference to fares, it is clear as an economic matter that state restrictions on fare advertising have the forbidden significant effect upon fares. In American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), participants in American Airlines' frequent flyer program brought a class action alleging that the airline violated the Illinois Consumer Fraud and Deceptive Business Practices Act and breached its contract with participants by modifying the program to devalue mileage credits participants had accumulated. Applying Morales, the Court held that the ADA pre-empted plaintiffs' claim under the Illinois consumer fraud statute. Most recently, in Ginsberg, class action plaintiffs alleged that Northwest Airlines violated its duty of good faith and fair dealing when it revoked their membership in its frequent flyer program. 134 S. Ct. at 1426-27. The Court held that the pre-emption of provisions having the force and effect of law includes common law rules when they embody, like statutes and regulations, binding standards of conduct that operate irrespective of any private agreement. The Claims at Issue The district court dismissed Ferrell's three claims, explaining that they not only relate to an air carrier's prices but are in the heartland of price. The court concluded that the fairness of Ferrell's transaction with Air EVAC and the reasonableness of Air EVAC's price are governed by federal law. Ferrell seeks a declaration that no express or implied contract came into effect because there was no mutual assent on the amount of the price. He rejects the price term set forth in the Authorization Form that he will pay what Air EVAC charges, because it does not state the price or provide an objective pricing mechanism. He argues the First Cause of Action falls within the pre-emption exception recognized in Wolens because it relies on a basic principle of contract law there must be a meeting of the minds on all essential terms for a contract to be enforceable. Air EVAC responds that the Wolens exception saves only contract-law rules aimed at discerning and enforcing the parties' bargain. But Air EVAC acknowledges that courts have recognized that it is proper to apply ordinary principles of contract law to ascertain whether there was a binding agreement between the parties. It is well settled in Arkansas that an indefinite price term or even no price term does not necessarily render a contract unenforceable. Although dressed in the language of contracts, Ferrell's First Cause of Action, as pleaded, asserts that, under Arkansas law, air-ambulance operators have no enforceable contract unless they disclose the actual price they will charge before transporting a patient, or the precise formula that will be used to determine that price. This is asserted on a class-wide basis, independent of the relationship between an air-ambulance operator and a particular patient. This is not a contract-based claim. Like the pre-empted fraud claims in the Second Cause of Action, this claim asserts a price-disclosure rule under Arkansas law that would apply uniquely and across-the-board to the providers of air-ambulance services operating as federally regulated air carriers. The rule would impose a common-law standard of conduct from which Air EVAC may not free itself. It is therefore a pre-empted state-imposed obligation. For these reasons, we conclude that Ferrell's declaratory judgment claims, like his fraud claims, are ADA-preempted. A judgment declaring that Air EVAC has no claim for breach of contract, and no right to recover for services it actually provided under any equitable theory, because it did not disclose its pricing term before providing the services, is clearly preempted under the ADA's express preemption provision as construed in Morales, Wolens, and Ginsberg. The judgment of the district court is affirmed. A full-text copy of the Eighth Circuit's August 16, 2018 Opinion is available at https://tinyurl.com/ydgqtl8q from Leagle.com. Charles Clifford Gibson, III, for Plaintiff-Appellant. Scott E. Poynter, for Defendant-Appellee. Alex T. Gray, for Defendant-Appellee. Jeremy Y. Hutchinson, for Defendant-Appellee. Lee Douglas Curry, for Plaintiff-Appellant. Charlotte Taylor -- ctaylor@jonesday.com -- for Defendant-Appellee. George Nathan Steel, for Defendant-Appellee. Joshua L. Fuchs -- jlfuchs@jonesday.com -- for Defendant-Appellee. ALINES AMERICAN: Moderno Labor Suit Seeks to Recover Overtime Pay ----------------------------------------------------------------- Kyle Moderno, on behalf himself, and a class consisting of similarly situated persons, Plaintiff, v. Alines American, Inc. and Andy Aline, Defendants, Case No. 18-cv-03566 (E.D. N.Y., June 19, 2018), seeks to recover overtime compensation for all hours worked in excess of forty hours per week, unpaid compensation, liquidated damages and attorneys' fees and costs for violation of the Fair Labor Standards Act and New York Labor Laws. Alines is a used car dealership in Suffolk NY where Moderno worked as a parking attendant. Moderno claims to have worked, on an average, 55 hours per work week without being paid overtime for hours in excess of 40 hours. Plaintiff are represented by: Saul D. Zabell, Esq. ZABELL & ASSOCIATES, P.C. 1 Corporate Drive, Suite 103 Bohemia, NY 11716 Tel: (631) 589-7242 Fax: (631) 563-7475 Email: SZabell@laborlawsny.com AMBIT ENERGY: Court Grants Final Approval of $9.3MM Settlement -------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania granted Plaintiffs' Unopposed Motion for Final Approval of Class Action Settlement in the case captioned AMY SILVIS, on behalf of herself and all others similarly situated, v. AMBIT ENERGY L.P, et al. Civil Action No. 14-5005. (E.D. Pa.). Silvis switched from her local energy provider to Ambit Energy after being enticed with attractive rates. Silvis contends that Ambit Energy solicited customers throughout Pennsylvania and in other states with teaser rates. After a short while, Ambit Energy would replace the teaser rate with a variable rate that it asserted would be based on energy and capacity markets, plus all applicable taxes. Silvis initiated this action on behalf of herself and others similarly situated, against Ambit Energy and its associated entities alleging breach of contract and unjust enrichment. The Proposed Settlement Terms The parties estimate that the potential aggregated pay out for 100% claims participation would be $9,300,000. Notice and claims administration costs were paid by Ambit Energy. Ambit also agreed to separately pay Silvis' service award of up to $5,000 and attorney's fees and costs of up to $1,450,000. In exchange for the benefits provided by the settlement, the class members agreed to release all claims that they alleged or could have alleged in the action. Under Federal Rule of Civil Procedure 23(e), the settlement of a class action requires court approval. A district court may approve a settlement agreement only after a hearing and on finding that it is fair, reasonable, and adequate. Whether the Proposed Settlement Is Fair and Reasonable In Girsh, 521 F.2d at 156, the Third Circuit identified nine factors to be considered when determining the fairness of a proposed settlement: (1) the complexity, expense, and likely duration of the litigation;(2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. The Complexity, Expense, and Likely Duration of the Litigation This case has been pending since August 27, 2014. Its continuation would necessitate complex, expensive, and lengthy litigation. As shown by its previous responsive briefs, Ambit Energy would have defended itself vigorously. The parties would have been required to file comprehensive class certification briefs and the Court would have held a hearing with witnesses on the issue. The parties also would have faced the possibility of a Rule 23(f) interlocutory appeal of the certification decision. After resolution of this issue, the parties would still be required to perform merits and expert discovery, file additional dispositive motions, and face a trial. The likely prospect of continued protracted litigation weighs strongly in favor of approving the settlement. The Reaction of the Class to Settlement Of the 12,542 claims received, only ten class members requested exclusion from the class and no members objected to the settlement or attorney's fee petition. Thus, this factor also weighs heavily in favor of the settlement. The Stage of the Proceedings Here, the settlement was finalized only after a rigorous mediation during which the parties engaged in analysis of the substantive claims and defenses in the case. Moreover, the case has been pending since August 2014 and the parties have briefed multiple dispositive motions which afforded counsel an opportunity to assess the strengths and weaknesses of the case. Finally, class counsel has litigated similar cases and has a thorough understanding of the factual and legal issues involved. The Court concludes that this factor weighs in favor of settlement and that the parties sufficiently appreciate the merits and dangers of the case. The Risks of Continued Litigation The parties have had sufficient opportunity to evaluate the strengths and weaknesses of the case, including the risks of continuing the litigation. Such risks include the possibility of class decertification or that conflicting state laws would hamper certification. Silvis would also risk a finding that she failed to establish that Ambit Energy breached its contract or overcharged the class members for electricity. The class members would also run the risk of being unable to adequately prove their individual damages. The Settlement Agreement provides a remedy now to all class members, rather than risking an uncertain result after years of expensive litigation. Thus, these factors weigh in favor of the settlement. The Ability of the Defendant to Withstand Greater Judgment Ambit Energy is capable of withstanding a larger judgment. However, it would still not be required to pay more than the class members are entitled. The Court finds that this factor does not weigh heavily for or against the settlement. The Range of Reasonableness of the Settlement in Light of the Best Possible Recovery and the Attendant Risks of Litigation In light of the risks of establishing liability and damages at trial, Silvis believes that the settlement falls within the range of reasonableness and is better than the other possible alternatives, which include little or no recovery. Although a verdict in this case might possibly have been greater than the value of the settlement, such a verdict would still face the risk of being overturned on appeal. The proposed settlement gives the class members significant relief at the earliest possible time, and, thus, these factors weigh in favor of settlement. It is clear that upon balancing of the Girsh factors, they tip strongly in favor of the settlement. Thus, the Court finds the settlement fair and will approve the Settlement Agreement. A full-text copy of the District Court's August 16, 2018 Memorandum is available at https://tinyurl.com/y89qqpb2 from Leagle.com. AMY SILVIS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by JONATHAN SHUB -- jshub@kohnswift.com -- KOHN SWIFT & GRAF PC, HARPER SEGUI -- hsegui@seguilaw.com -- KOHN SWIFT & GRAF, P.C., KEVIN LAUKAITIS -- klaukaitis@kohnswift.com -- KOHN SWIFT & GRAF PC, SCOTT A. GEORGE -- sgeorge@seegerweiss.com -- SEEGER WEISS & TROY M. FREDERICK, MARCUS & MACK PC. AMBIT NORTHEAST, LLC & AMBIT NORTHEAST, LLC, doing business as AMBIT ENERGY, Defendants, represented by JOANNA J. CLINE -- clinej@pepperlaw.com -- PEPPER HAMILTON LLP, STEPHEN C. RASCH -- Stephen.Rasch@tklaw.com -- THOMPSON & KNIGHT LLC, JENNIFER MEGHAN NYLIN -- Meghan.Nylin@tklaw.com -- THOMPSON & KNIGHT LLP &MICHAEL W. STOCKHAM -- Michael.Stockham@tklaw.com -- THOMPSON & KNIGHT LLP. AMBIT NORTHEAST: $1.45MM Class Settlement Has Final Approval ------------------------------------------------------------ The United States District Court for the Eastern District of Pennsylvania granted Plaintiff's Application for a Judgment Finally Approving the Settlement in the case captioned AMY SILVIS, on behalf of herself and all others similarly situated, Plaintiff, v. AMBIT NORTHEAST, LLC, Defendant. No. 2:14-CV-05005-ER. (E.D. Pa.). The Plaintiff for a judgment finally approving the Settlement that is set forth in the Plaintiff's Amended Unopposed Motion for Preliminary Approval Of Class Action Settlement. This Final Judgment and Order of Dismissal further incorporates by reference the definitions in the Settlement Agreement and unless otherwise specified herein all capitalized terms contained in this Final Judgment and Order of Dismissal shall have the meanings attributed to them in the Settlement Agreement. For purposes of effectuating this Settlement only, the Court Orders final certification of the proposed Settlement Class, having found that the requirements of Rule 23 of the Federal Rules of Civil Procedure are met. The Settlement Class is defined as: All persons in the Commonwealth of Pennsylvania who were enrolled as a customer of Defendant and were on Defendant's Select Variable Plan at any time from January 1, 2011 through February 22, 2018. Excluded from the Settlement Class are: Defendant, any entities in which it has a controlling interest, and any of their parents, subsidiaries, affiliates, officers, directors, employees, and members of such person's immediate family; the presiding judge(s) in this case and their immediate family; and any person who has previously released claims against Defendant. The Court finds that a Fee and Expense Award to Class Counsel in the amount of $1,450,000.00 is fair and reasonable. Therefore, pursuant to the Settlement Agreement, Defendant shall pay, within ten (10) business days of the latest date of the following: (1) the Effective Date; (2) the date that the time for taking an appeal from the order awarding the fees has expired, with no appeal being filed; or (3) if an appeal is taken from the order awarding the fees, the highest court to which such appeal may be taken affirms the order awarding the fees. A full-text copy of the District Court's August 16, 2018 Judgment and Order is available at https://tinyurl.com/y7a5hj89 from Leagle.com. AMY SILVIS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by JONATHAN SHUB -- jshub@kohnswift.com -- KOHN SWIFT & GRAF PC, HARPER SEGUI -- hsegui@seguilaw.com -- KOHN SWIFT & GRAF, P.C., KEVIN LAUKAITIS -- klaukaitis@kohnswift.com -- KOHN SWIFT & GRAF PC, SCOTT A. GEORGE -- sgeorge@seegerweiss.com -- SEEGER WEISS & TROY M. FREDERICK , MARCUS & MACK PC. AMBIT NORTHEAST, LLC & AMBIT NORTHEAST, LLC, doing business as AMBIT ENERGY, Defendants, represented by JOANNA J. CLINE -- clinej@pepperlaw.com -- PEPPER HAMILTON LLP, STEPHEN C. RASCH -- Stephen.Rasch@tklaw.com -- THOMPSON & KNIGHT LLC, JENNIFER MEGHAN NYLIN -- Meghan.Nylin@tklaw.com -- THOMPSON & KNIGHT LLP & MICHAEL W. STOCKHAM -- Michael.Stockham@tklaw.com -- THOMPSON & KNIGHT LLP. AMERICA HONDA: Bovgirya's TCCWNA Suit Remanded to State Court ------------------------------------------------------------- The United States District Court for the District of New Jersey granted Plaintiffs' Motion to Remand the case captioned TATIANA BOVGIRYA, on behalf of herself and the putative class, Plaintiffs, v. AMERICA HONDA MOTOR COMPANY, INC., Defendant. Civ. No. 2:17-cv-06248 (WHW) (CLW). (D.N.J.) The Plaintiff brought suit in the Superior Court of New Jersey, Union County, alleging violations of New Jersey consumer protection laws on behalf of herself and other similarly situated. The propose class consists of every natural person to whom American Honda Motor Company, Inc. sent or caused to be sent an e-mail advertisement that was substantially the same as the advertisement sent to Plaintiff, with the identified participating dealership located within New Jersey. The Class Action Fairness Act (CAFA) provides original jurisdiction in the federal courts over class actions if the matter in controversy exceeds $5,000,000. In addition to the amount-in-controversy requirement, the class must have at least 100 members and the parties must be minimally diverse. To determine whether the amount in controversy exceeds $5 million, the claims of individual members must be aggregated. The Defendant asserts that the amount in controversy is easily satisfied, as it could be as high as $11,280,501. According to the Defendant, the amount in controversy as to the TCCWNA claims should be calculated at $1,200 per class member, because the Plaintiff alleges that the email contained 12 unlawful provisions. The Defendant argues that the Plaintiff would be entitled to recover $100 per violative provision under TCWWNA. The Defendant argues that in the alternative, the TCCWNA claims should be calculated at $300 per class member, with $100 for each regulation or statute allegedly violated. At the new class size of 8,697, this would produce an amount in controversy of $10,436,400. The Plaintiff does not dispute that attorneys' fees should be calculated at 30%. Consequently, to exceed $5 million, the total amount in controversy must be $3,846,153.85 before attorneys' fees are added. Accepting the Defendant's proposed valuation of $844,101 for Count Two, the value of Count One must exceed $3,002,052.85. Because the current estimate of individuals for whom statutory penalties are available is 8,697, jurisdiction is appropriate only if each individual is entitled to statutory damages exceeding $345.18 under the TCCWNA. For the reasons that follow, the Court finds that the Defendants have not shown that each individual is entitled to statutory damages exceeding $345.18, and consequently need not consider Defendant's calculation of the valuation of Count Two. Statutory Damages Under TCWWNA To carry out this purpose, the TCCWNA reads: No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. The Plaintiff asserts that the Defendant is liable to the Plaintiff and the members of the TCCWNA class for statutory damages of $100 each, plus attorneys' fees and costs. Accordingly, the Plaintiff argues that the amount in controversy in the TCCWNA claims before attorneys' fees is $100 per class member, or $869,700. In response, the Defendant contends that the TCCWNA entitles each consume $100 for each unlawful provision contained in the contract, and therefore values the TCCWNA claims at $11,280,501. This Court rejects the Defendant's argument. Courts regularly apply a penalty of $100 per contract when determining TCCWNA liability. Accordingly, courts assessing the value of TCCWNA claims for purposes of CAFA jurisdiction have similarly calculated penalties at $100 per contract. Valuing the claim at $100 per email rather than $100 per provision is consistent with the text of the statute. If the Legislature's intent is clear from the statutory language and its context with related provisions, we apply the law as written. The TCCWNA provides a civil penalty of not less than $100" against any person who violates the provisions of this act. A violation occurs when a seller offers to any consumer or prospective consumer or enters into any written consumer contract, or gives or displays any written consumer notice which includes any unlawful provision. The statute is written in terms of the interaction between seller and consumer, not in terms of individual provisions. The alleged violation here occurred when Defendant displayed the email to Plaintiff, not when Defendant inserted each of the twelve allegedly unlawful provisions into the email. Here, there are no allegations in the complaint to support a statutory penalty in excess of the $100, and Plaintiff has not sought actual damages. The Court will therefore calculate the value of the TCCWNA claims at $100 per class member, or $869,700. Defendant has consequently not met its burden of establishing the amount in controversy. The Court finds that the Defendant has failed to meet its burden to establish the amount in controversy exceeds $5 million. The Plaintiff's motion to remand is granted. An appropriate order follows. A full-text copy of the District Court's August 16, 2018 Opinion is available at https://tinyurl.com/yaeuu4jw from Leagle.com. TATIANA BOVGIRYA, on behalf of herself and the putative class, Plaintiff, represented by HENRY PAUL WOLFE -- hwolfe@wolflawfirm.net -- THE WOLF LAW FIRM, LLC. AMERICAN HONDA MOTOR CO., INC., Defendant, represented by CLIFFORD BRIAN KORNBREK -- bkornbrek@greenbaumlaw.com -- GREENBAUM, ROWE, SMITH & DAVIS, LLP & THOMAS KILEY MURPHY, III -- tmurphy@greenbaumlaw.com -- GREENBAUM ROWE SMITH & DAVIS LLP. AMICI 519: Court Denies Bid to Partially Dismiss Uraga's FLSA Suit ------------------------------------------------------------------ In the case, PEDRO URAGA, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff, v. AMICI 519 LLC D/B/A ESSEN, ET AL., Defendants, Case No. 1:17-cv-03547 (ALC) (S.D. N.Y.), Judge Andrew L. Carter, Jr. of the U.S. District Court for the Southern District of New York (i) denied the Defendants' motion to partially dismiss; and (ii) granted in part and denied in part the Plaintiff's motion for conditional certification. Uraga brings the action against the Defendants Amici 519, LLC, doing business as Essen, BNP NY Foods, Inc., doing business as Essen, Ten Westside Corp., doing business as Essen, 100 Broad Street, LLC, doing business as Essen, Essen22, LLC doing business as Essen, John Doe Corp. doing business as ESSEN ("Corporate Defendants"), John Byun and Chong Won Byun ("Individual Defendants") under the Fair Labor Standards Act, New York Labor Law, New York State Human Rights Law, and New York City Human Rights Law to recover (1) unpaid overtime compensation; (2) unpaid wages due to time shaving; (3) liquidated damages; (4) economic damages; (5) compensatory damages; (6) punitive damages, and (7) attorneys' fees and costs. Between January 2017 and March 2017, the Plaintiff was employed by the Defendants to work as a porter for their Essen Midtown West Location. The Plaintiff claims that he regularly worked over 40 hours a week; specifically, he was scheduled to work six days a week for a total of 52 and half hours, for which he was paid at a straight-time hourly rate. The Plaintiff also alleges that the Defendants' maintained a policy of time-shaving with respect to meal breaks and indiscriminately and automatically deducted 30 minutes each workday from his payroll as meal breaks rather than tracking actual meal breaks. Moreover, he alleges that the Defendants did not provide him with proper wage and hour notices or wage statements. The Plaintiff asserts that other non-managerial employees at Essen Restaurants experienced similar issues based on his personal observations and conversations with these employees. The Defendants seek to partially dismiss the Complaint for failure to state a claim as to all the Defendants except Amici 519, LLC for three reasons. First, the Plaintiff's Complaint does not sufficiently allege that the Defendants are a single integrated enterprise, and the allegations against the Individual Defendants lack factual specificity. Second, the Plaintiff only worked for one corporate entity, and thus, lacks standing to represent class members against Defendants. Third, the Plaintiff has received his wage statements, thereby warranting dismissal of his claims based on violations of Wage Notice and Wage Statement laws. The Defendants forward the same arguments, with the exception of the argument regarding Individual Defendants, in their opposition to the Plaintiff's Motion for Conditional Certification. The Plaintiff, on the other hand, moves for (1) conditional certification of the FLSA claim as a representative collective action on behalf of Covered Employees; (2) court-facilitated notice of the FLSA action to Covered Employees, including a consent form (or opt-in form) as authorized by the FLSA; (3) approval of a proposed FLSA notice (including Spanish translation) of the action and the consent form; (4) production in Excel format of names, social security numbers, titles, compensation rates, dates of employment, last known mailing addresses, email addresses and all known telephone numbers of all Covered Employees within 10 days of Court approval of conditional certification; (5) posting of the notice, along with the consent forms, at any time during regular business hours in the Defendants' restaurants where Covered Employees are employed; and (6) equitable tolling of the FLSA statute of limitations until such time that the Plaintiff is able to send notice to potential opt-in Plaintiffs. Judge Carter holds that, at this stage, the Plaintiff has provided sufficient factual information to support their allegation that the Defendants are a single integrated enterprise. Accordingly, the Defendants' Motion to Dismiss as to all Corporate Defendants except Amici 519 will be denied, and the Defendants' first argument in opposition to conditional certification is unavailing. The Judge further holds that the Defendants' argument for dismissing claims against the Individual Defendants is equally unavailing. The Plaintiff has alleged that the Individual Defendants are senior executive officers of Corporate Defendants who (1) have the authority to affect changes to the terms of employees' employment, (2) who regularly visit restaurants and reprimand employees, and (3) who ensure that the business is operating efficiently and profitably. Drawing all reasonable inferences in favor of the Plaintiff, the Complaint sufficiently pleads that the Individual Defendants exercised operational control and are therefore employers under the FLSA. The Judge finds that the Plaintiff has sufficiently pled the existence of a single integrated enterprise, and that Individual Defendants are employers for the purposes of the FLSA. Therefore, Plaintiff has standing to bring claims against all the Defendants. The Plaintiff has also made a modest factual showing that he and others similarly situated were victims of a common policy that potentially violates the law. The Judge agrees with the Plaintiff's contention and will deny the Defendants' motion to dismiss the Plaintiff's claims brought under N.Y. Lab. Law Sections 195(1) and 195(3). As the Plaintiff has met the minimal burden required for conditional certification, and the Defendant has not provided compelling reasons to deny the Plaintiff's motion, the Plaintiff's motion for conditional certification of the FLSA collective action will be granted. He granted the Plaintiff's request to compel the Defendants to produce the names, social security numbers, titles, compensation rates, last known mailing addresses, e-mail addresses, all known telephone numbers, and dates of employment of all non-exempt employees employed by the Defendants at each of their restaurants within the last six years, as to all information sought except social security numbers as such information is private and not necessary for Plaintiff to notify potential opt-in Plaintiff's. He approved the proposed notice form with the exception of the six year limitations period. At this stage, the notice form's limitation period should be three years. Additionally, he holds that the form may also be translated into Spanish to increase the likelihood of adequate notice to the putative class members. Finally, the Judge finds that the Plaintiff has not demonstrated that there are any extraordinary circumstances warranting tolling in the matter. Though it appears that the Plaintiff has been diligently pursuing his rights, absent extraordinary circumstances, this is not sufficient. Should equitable tolling issues arise as to an opt-in plaintiff after conditional certification, e.g., if the Defendants argue that an individual Plaintiff's action is untimely, the Judge will then consider tolling. For the foregoing reasons, Judge Carter denied the Defendants' Motion to Dismiss Plaintiff's Complaint; and granted in part and denied in part the Plaintiff's Motion for Conditional Certification as outlined. A full-text copy of the Court's July 25, 2018 Opinion and Order is available at https://is.gd/WPqzfS from Leagle.com. Pedro Uraga, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff, represented by Angela Saeyun Kwon , Lee Litigation Group, PLLC, Anne Melissa Seelig, Lee Litigation Group, PLLC & C.K. Lee, Lee Litigation Group, PLLC. Amici 519 LLC, doing business as Essen, Defendant, represented by Jonathan J. Lerner -- jlerner@starrgern.com -- Starr, Gern, Davison & Rubin, P.C., Nicholas Stevens -- nstevens@starrgern.com -- Starr, Gern, Davison & Rubin, P.C., pro hac vice & Jonathan Yoon Sue, Law Offices of Jonathan Y. Sue, PLLC. BNP NY Foods, Inc., doing business as Essen, Ten Westside Corp., doing business as Essen, 100 Broad Street LLC, doing business as Essen, Essen22 LLC, doing business as Essen & John Doe Corp., doing business as Essen, Defendants, represented by Jonathan J. Lerner, Starr, Gern, Davison & Rubin, P.C. & Nicholas Stevens, Starr, Gern, Davison & Rubin, P.C., pro hac vice. John Byun & Chong Won Byun, Defendants, represented by Jonathan Yoon Sue , Law Offices of Jonathan Y. Sue, PLLC & Nicholas Stevens, Starr, Gern, Davison & Rubin, P.C., pro hac vice. AP PREFERRED: Marmier-Romeo Action Seeks to Recover Overtime Pay ---------------------------------------------------------------- Samantha Marmier-Romeo, on behalf of himself and all others similarly situated, Plaintiff, v. AP Preferred Solutions, LLC, Defendants, Case No. 18-cv-11943 (E.D. Mich., June 19, 2018), seeks unpaid overtime compensation and prejudgment interest, liquidated and exemplary damages, litigation costs, expenses, attorneys' fees and such other and further relief under the Fair Labor Standards Act of 1938. AP Preferred Solutions, LLC a/k/a AccessPoint Health Care IT provides information technology educational services for the healthcare industry across the country. Romeo worked for Defendant as a consultant providing support and training to AccessPoint's clients in using a new recordkeeping system at Inspire Health Network in New Jersey between March and May 2018. She routinely worked more than forty hours a week but did not receive overtime for hours worked in excess of forty a week. [BN] Plaintiff is represented by: Harold Lichten, Esq. Olena Savytska, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St., Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 Email: hlichten@llrlaw.com osavytska@llrlaw.com - and - Shanon J. Carson, Esq. Sarah R. Schalman-Bergen, Esq. Alexandra K. Piazza, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Email: scarson@bm.net sschalman-bergen@bm.net apiazza@bm.net - and - David M. Blanchard, Esq. BLANCHARD & WALKER, PLLC 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 Telephone: (734) 929-4313 Email: blanchard@bwlawonline.com APPLE INC: Seeks Dismissal of Class Action Over Cracked Watches --------------------------------------------------------------- Emily Field, writing for Law360, reports that Apple urged a California federal judge on Aug. 10 to toss a proposed class action accusing the company of selling millions of watches with defective screens that can crack or shatter, saying the watch that prompted the suit broke after the warranty expired. The tech giant said in a motion to dismiss that lead plaintiff Kenneth Sciacca claims he bought a Series 2 Apple Watch in December 2016 and used it for over 15 months with no problem. The case is Sciacca v. Apple, Inc., Case No. 5:18-cv-03312 (N.D. Calif.). The case is assigned to Judge Nathanael M. Cousins. The case was June 4, 2018. [GN] AT&T MOBILITY: Judge Certifies Customers Class in Roaming Fees Suit ------------------------------------------------------------------- Matt Bernardini, writing for Law360, reports that a California federal judge certified a class of AT&T customers on Aug. 13 who accused the company of misleading them about overseas roaming fees, finding in the long-running suit that, though the customers had gotten information from different sources, their claims could be heard as a group. U.S. District Judge Claudia Wilken found that the customers, who claimed they were charged for phone calls they hadn't even answered while traveling abroad, could have their claims heard together. The case is McArdle v. AT&T Mobility LLC et al, Case No. 4:09-cv-01117 (N.D. Calif.). The case is assigned to Judge Claudia Wilken. The case was filed March 13, 2009. [GN] BANK OF AMERICA: Nov. 8 ISDAfix Settlement Approval Hearing Set --------------------------------------------------------------- This is a new notice concerning an additional proposed settlement (the "Proposed Settlement") reached in the matter of Alaska Electrical Pension Fund, et al. v. Bank of America, N.A., et al., currently pending in the United States District Court for the Southern District of New York (the "Court"). It is to alert Settlement Class Members to a new and additional settlement with five Defendants: BNP Paribas (named in the Action as "B.N.P. Paribas SA"); ICAP Capital Markets LLC (now known as Intercapital Capital Markets LLC); Morgan Stanley & Co. LLC; Nomura Securities International, Inc.; and Wells Fargo Bank, N.A. (collectively, the "Newly Settling Defendants"), in a class action against Newly Settling Defendants and other Defendants who previously settled. The lawsuit alleges that Defendants, including the Newly Settling Defendants, engaged in anticompetitive acts that affected the market for ISDAfix Instruments, as defined below, in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The lawsuit also alleges that certain Defendants were unjustly enriched under common law and breached ISDA Master Agreements. The lawsuit was brought by persons who transacted in ISDAfix Instruments. All Defendants deny they did anything wrong. A Proposed Settlement has been reached with the Newly Settling Defendants. This is separate from the settlements that have already been given final approval by the Court, which covered other Defendants in the same action (the "Approved Settlements"). The Newly Settling Defendants have agreed to pay $96 million (the "Settlement Fund"). This amount is in addition to the fund created from the $408.5 million paid in connection with the Approved Settlements. Before any money is paid, the Court will have a hearing to decide whether to approve the additional Proposed Settlement. Approval of the Proposed Settlement by the Court will resolve this lawsuit in its entirety. Subject to certain exceptions, the Settlement Class includes all persons or entities (together, "Persons") who, from January 1, 2006, through January 31, 2014, entered into, received or made payments on, settled, terminated, transacted in, or held an ISDAfix Instrument. "ISDAfix Instrument" means (i) any and all interest rate derivatives, including, but not limited to, any swaps, swap spreads, swap futures, variance swaps, volatility swaps, range accrual swaps, constant maturity swaps, constant maturity swap options, digital options, cash-settled swaptions, physically settled swaptions, swapnote futures, cash-settled swap futures, steepeners, flatteners, inverse floaters, snowballs, interest rate-linked structured notes, and digital and callable range accrual notes, where denominated in USD or related to USD interest rates; and (ii) any financial instruments, products, or transactions related in any way to any USD ISDAfix Benchmark Rates, including, but not limited to, any instruments, products, or transactions that reference ISDAfix Benchmark Rates and any instruments, products, or transactions relevant to the determination or calculation of ISDAfix Benchmark Rates. For anyone unsure whether they are a Settlement Class Member, they can find more information, including a detailed Notice of an Additional Proposed Settlement of Class Action (the "Notice"), at www.ISDAfixAntitrustSettlement.com, or by calling the Claims Administrator at 1-844-789-6862 (U.S.), or +1-503-597-5526 (Int.). Settlement Class Members who do not opt out of the Settlement Class will be eligible to file a Proof of Claim and Release Form (the "Claim Form"). Claim Forms can be found at www.ISDAfixAntitrustSettlement.com. The amount of the payment will be determined by a Plan of Distribution to be approved by the Court. The proposed plan is functionally the same as the plan that was given final approval by the Court in connection with the Approved Settlements. Details are available at www.ISDAfixAntitrustSettlement.com. A date for distribution of the Settlement Fund has not been set. Claim Forms must be submitted by December 23, 2018. Settlement Class Members do not need to do anything if they submitted a timely and valid claim form in connection with the Approved Settlements. Any such submission will be treated as a valid and timely Claim Form with respect to this additional Proposed Settlement. Anyone unsure whether they did so can contact the Claims Administrator by calling 1-844-789-6862 (U.S.), or +1-503-597-5526 (Int.). Settlement Class Members who do not opt out of the Settlement Class will release certain legal rights against the Newly Settling Defendants and the Released Defendant Parties, as explained in the detailed Notice and Settlement Agreement, available at www.ISDAfixAntitrustSettlement.com. Settlement Class Members who do not want to take part in the Proposed Settlement must opt out by October 13, 2018. Settlement Class Members may, but do not have to, comment on or object to the Proposed Settlement, or Lead Counsel's application to the Court for an award of attorneys' fees, expenses, and incentive awards to the Class Plaintiffs for representing the Settlement Class with respect to the Proposed Settlement. To do so, a Settlement Class Member must file any comment or objection with the Court by October 13, 2018. Further information on how to opt out of the Settlement Class, or file a comment or objection with the Court, is available at www.ISDAfixAntitrustSettlement.com. The Court will hold a hearing on November 8, 2018, at the United States District Court for the Southern District of New York, Thurgood Marshall United States Courthouse, 40 Foley Square, Courtroom 1105, New York, NY 10007, to consider whether to approve the Proposed Settlement, and Lead Counsel's application for an award of attorneys' fees, expenses, and incentive awards to the Class Plaintiffs. Settlement Class Members or their lawyers may ask to appear and speak at the hearing at their own expense, but do not have to. The Court has appointed the lawyers listed below as Lead Counsel to represent the Settlement Class in this Action: Daniel L. Brockett Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 David W. Mitchell Robbins Geller Rudman & Dowd, LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Christopher M. Burke Scott+Scott, Attorneys at Law, LLP 600 West Broadway, Suite 3300 San Diego, CA 92101 [GN] BANK OF AMERICA: Pastor Class Settlement Has Prelim Approval ------------------------------------------------------------ The United States District Court for the Northern District of California granted Parties Joint Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class in the case captioned ROBERT A. PASTOR, ET AL., Plaintiffs, v. BANK OF AMERICA, Defendant. Case No. 15-cv-03831-VC. (N.D. Cal.). The parties jointly filed a Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class (Preliminary Approval Motion). The Parties filed their Motion for Final Approval of Class Action Settlement Agreement hereinafter referred to as the Final Approval Motion. Pursuant to their Final Approval Motion, the Parties requested final approval of the proposed Class Action Settlement. The Court has read and considered the Agreement, Final Approval Motion, and the record. All capitalized terms used herein have the meanings defined herein and/or in the Agreement. The Agreement, which has been filed with the Court and shall be deemed incorporated herein, and the proposed settlement are finally approved and shall be consummated in accordance with the terms and provisions thereof, except as amended by any order issued by this Court. The material terms of the Agreement include, but are not limited to, the following: A. Defendant will pay each of the 114,512 claimants that made a timely and valid claim $4.06; B. Defendant will pay to Class Counsel the sum of $431,250 in attorneys' fees and $19,023.42 for costs incurred in litigating this action. The motion for attorneys' fees and costs is also granted. The plaintiffs are awarded $431,250 in fees and $19,023.42 in costs. Ten percent of the fee award must be withheld by the settlement administrator until the Court approves its release, which will be after plaintiffs' counsel files a notice of completion of duties (discussed further below). The requested $5,000 incentive fee for each named plaintiff is approved. A full-text copy of the District Court's August 16, 2018 Order is available at https://tinyurl.com/yar8r8cf from Leagle.com. Robert A. Pastor, Scott M. Van Horn, Regina M. Florence & William E. Florence, III, on behalf of themselves and all others similarly situated, Plaintiffs, represented by David James McGlothlin -- david@westcoastlitigation.com -- Hyde & Swigart, Ryan Lee McBride -- ryan@kazlg.com -- Kazerouni Law Group, Seyed Abbas Kazerounian -- ak@kazlg.com -- Kazerouni Law Group & Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart. Bank of America, Defendant, represented by Christina Marie Vitale -- christina.vitale@morganlewis.com -- Morgan, Lewis, Bockius LLP, pro hac vice & Joseph Duffy -- joseph.duffy@morganlewis.com -- Morgan, Lewis & Bockius LLP. BAYER: Women in Australia to Join Class Action Over Essure ---------------------------------------------------------- According to MassDevice's Fink Densford, citing a report from The Guardian, a group of women in Australia will be joining other women worldwide in pursuing a class action lawsuit against Bayer for medical problems allegedly associated with its Essure permanent birth control device, according to a report from The Guardian. The suit, which will be led by law firm Slater and Gordon, joins similar suits against Bayer in the US, Canada and the UK, according to the report. Slater & Gordon associate Ebony Birchall said the suit will examine whether the product is inherently defective, according to The Guardian. "Essure was hailed as the new wave of contraceptive devices. Unlike traditional permanent contraceptive surgery, Essure was marketed as being fast, effective and minimally invasive, it could be inserted in your doctor's office. However, for the women who have experienced complications, it has been incredibly damaging," Mr. Birchall said, according to the report. Australia's Therapeutic Goods Administration announced last May that Bayer decided to drop distribution of the Essure device in the country "for business reasons," according to The Guardian. Bayer has not released any details of how many devices were sold in the country, and has not officially responded to news of the suit, though a spokesperson told The Guardian that it was aware of the suit and is "committed to the proper and objective consideration of any legal claim made should such a claim be lodged." Late in July, Bayer fired back against claims that its Essure permanent birth control device is less than safe and effective after having announced plans to pull the device from the shelves in the US only a week earlier. [GN] BEST BUY: Court Denies Class Certification on Harris's Wage Suit ---------------------------------------------------------------- The United States District Court for the Northern District of California denied Plaintiffs' Motion for Class Certification in the case captioned STARVONNA HARRIS, et al., Plaintiffs, v. BEST BUY STORES, L.P., Defendant. Case No. 17-cv-00446-HSG. (N.D. Cal.). Class certification is a two-step process. First, Plaintiff must establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality, typicality, and adequacy of representation. Second, Plaintiff must establish that at least one of the bases for certification under Rule 23(b) is met. The Plaintiff must show that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The parties agreed that only two putative subclasses remained following the Strickland Summary Judgment Order: a Wage Statement Subclass and a Waiting Time Subclass. The Wage Statement Subclass comprises: All nonexempt individuals employed by DEFENDANT in California who received wage statements containing one or more Previous Period Hrs entries, (2) all members of the Overtime Wage Subclass, and (3) all non-exempt individuals employed by DEFENDANT in California who received wage statements listing hours worked that do not match the hours worked in their time records for the same pay periods during the applicable limitations period. The Plaintiff's Waiting Time Subclass includes, in relevant part: all non-exempt individuals formerly employed by DEFENDANT in California who either did not receive their final hourly wages on the date their employment was terminated or within 72 hours of their resignation during the applicable limitations period. Wage Statement Subclass Best Buy maintains a time entry system called the Time and Labor Center (TLC). The TLC requires managers to approve certain time entries input by employees, referred to as timesheet exceptions. Timesheet exceptions can include manually input time entries and corrections to prior time entries. TLC time entries determine how much an employee is paid and when. Best Buy's pay periods are two weeks, and Best Buy's work week is Sunday (12:00 am) to Saturday (11:59 pm). It is an employee's responsibility to ensure that their time records are complete, accurate and authorized by 5:00 pm (local time) on Sunday. Plaintiff contends that the Previous Period Hrs. wage statement entry is misleading. According to Plaintiff, this entry prevents Best Buy employees from determining whether the hours were worked and the wages were earned in the prior pay period or an earlier pay period. In response, Defendant contends that Plaintiff's Wage Statement Subclass cannot satisfy Rule 23's commonality and predominance requirements. To begin, Defendant claims that the Previous Period Hrs. entry does not itself violate California Labor Code Section 226. Defendant stresses that Plaintiff cannot show, as she must, that Defendant's violation was knowing and intentional. The Court agrees with Defendant. Here, the Plaintiff fails to set forth how she could show, on a classwide basis, that Best Buy managers knowingly and intentionally delayed their approval of timesheet exceptions. To meet Rule 23(a)'s commonality requirement, Plaintiff's wage statement claim must depend upon a common contention. . . capable of class-wide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. As the Dukes, 564 U.S. at 349, Court stated, the commonality analysis is rigorous. The Plaintiff accordingly cannot assert any common question rather, she must define a question that will produce a common answer" to the question driving the resolution of the litigation. That question in this case is whether Defendant's managers knowingly and intentionally failed to timely approve timesheet exceptions. Notably, Plaintiff fails to show that Best Buy, as a corporate actor, knew or intended for timesheet exceptions to be approved late. Plaintiff also fails to present evidence demonstrating that Best Buy otherwise sought to mislead employees as to their hours worked and wages earned through the Previous Period Hrs. entry. The Plaintiff does not present evidence suggesting that Best Buy knowingly or intentionally instructed or encouraged managers to unlawfully delay their approval of timesheet exceptions. Contrary to Plaintiff's suggestion, nothing about the TLC system on its own is unlawful or inadequate under Section 226. Rather, the questions susceptible of class-wide proof', for instance, whether an employee's pay statement inludes the Previous Period Hrs. entry) offer limited answers as to Defendant's liability. Plaintiff provides no aggregate method for determining the issue of intent, which Defendant's records cannot show on their own. Thus, the fact-finder will need to determine in each case the conduct and circumstances giving rise to a delayed approval. Given that individual liability issues will predominate over common concerns, the Court concludes that certification of the Wage Statement Subclass is inappropriate. Waiting Time Subclass California Labor Code Section 203 provides: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. According to the Plaintiff, the procedures are deficient in that they do not inform managers and other employees when final wages must be paid to employees. Plaintiff asserts that understaffing contributes to Defendant's poor record keeping practices, and has resulted in hundreds of employees not receiving timely final wages. In response, Defendant claims that its training to managers is adequate and complies with California law. Defendant submits evidence, including employee declarations and training materials, to show that it instructs managers on the following three pay requirements: (1) involuntary terminations must be paid immediately; (2) voluntary terminations with 72 hours' notice must be paid immediately; and (3) any other voluntary termination must be paid within 72 hours of receiving notice. Defendant contends that its actual pay practices reflect those instructions. This putative subclass also fails under Rule 23(a). Plaintiff does not identify a general policy maintained by Best Buy that resulted in late payments, or some method for sampling records to provide common proof that individual Best Buy managers acted unlawfully on a systemic basis. While commonality may be established based on a pattern of officially sanctioned illegal behavior, merely pointing to a pattern of harm, untethered to the defendant's conduct, is insufficient. Not only does Defendant present sufficient proof that its training program is adequate, but also shows that individual and unintentional payroll discrepancies preclude the type of common proof required for class certification. For instance, Oracle termination dates and payroll records can differ, obscuring when a terminated employee received his or her final pay. Discrepancies can also arise where a manager forgets to remove an employee from the TLC system after ER inputs their ISN. In those instances, employees receive a duplicate payment for hours already paid. Defendant claims, and Plaintiff does not dispute, that Best Buy would not be liable for late payment in those cases. Furthermore, Defendant provides numerous examples of duplicative payments, or allegedly late payments that were actually paid on time. A full-text copy of the District Court's August 16, 2018 Order is available at https://tinyurl.com/yaebhye8 from Leagle.com. Starvonna Harris, individually and on behalf of those similarly situated & Jonathan Strickland, individually and on behalf of those similarly situated, Plaintiffs, represented by Kevin Francis Woodall -- kevin@kwoodalllaw.com -- Woodall Law Offices & Page R. Barnes , Barnes Law Offices. Best Buy Stores, L.P., a limited partnership, Defendant, represented by Barbara Jean Miller -- barbara.miller@morganlewis.com -- Morgan Lewis & Bockius, LLP, Alejandro David Szwarcsztejn -- david.szwarcsztejn@morganlewis.com -- Morgan Lewis & Bockius LLP & Bryan Jarrett , Morgan Lewis & Bockius LLP. BRAMBLES: Faces 2nd Class Action Over Share Price Plunge -------------------------------------------------------- Nick Toscano, writing for The Sydney Morning Herald, reports that hundreds of aggrieved investors have signed up to a second class-action suit against Australian logistics giant Brambles, alleging the $15 billion company repeatedly withheld information about its true financial position. Brambles, which is listed on the ASX and operates in more than 60 countries, is facing serious claims of failing to comply with its legal obligations as a public company to keep its shareholders informed about the poor performance of its US-based pallets business in 2015. The disclosure violations, it is alleged, prompted Brambles to suddenly slash its sales and profit forecasts, triggering two major share price plunges at the beginning of 2017 and sigificantly harming its shareholders. The company is named in a new Maurice Blackburn-led lawsuit filed in Australia's Federal Court on Aug. 14, which is being backed by British litigation funder Harbour. It comes less than a week after another prominent Australian law firm, Slater & Gordon, filed separate class-action proceedings on behalf of investors over Brambles' alleged disclosure failures. Brambles said it had not yet been notified by Maurice Blackburn of its class-action proceedings, filed on Aug. 14, but would "vigorously defend" any potential proceedings brought against it. A spokesman said the company strongly believed it had, at all times, complied with its disclosure obligations and other legal obligations to act in the best interests of its shareholders. According to Maurice Blackburn, the law firm's investigations allegedly show Brambles had systems in place to ensure senior executives were aware as early as October 2016 that its pallets business in America was facing major challenges due to customers de-stocking and competitive pressures, indicating the company "knew or ought to have known" that it would fall short of its projected 9 per cent sales growth and 11 per cent profit growth. "Yet, despite this, senior executives repeatedly assured investors its 2017 financial year guidance would be met, before dropping a bombshell just 11 weeks after its annual general meeting that this guidance could no longer be affirmed," Maurice Blackburn class actions principal Andrew Watson said. The lawsuit alleges there was ample opportunity for Brambles to revise its forecasts much earlier than January or February 2017 to indicate that forecast sales growth would be downgraded to 5 per cent and profit would remain flat. "The company repeatedly failed to do so, resulting in a significant breach of its continuous-disclosure obligations that led to substantial losses for investors," Mr Watson said. Shareholders were significantly disadvantaged when Brambles earnings downgrades led to share-price falls of almost 16 per cent for the first revision, and almost 10 per cent for the second. The emergence of two class-action lawsuits over Brambles' disclosure obligations during a similar period raises the prospect of the court ordering that they be combined. The cases may be permitted to run beside each other, Mr Watson said, or the court may order that one be discontinued. Mr Watson said hundreds of shareholders, including retail investors and some of Australia's largest financial institutions, had so far signed up to the Maurice Blackburn-led class action, which is open to any investors who purchased Brambles shares between October 20, 2016, and February 19, 2017. [GN] BRIGHTSTAR GROUP: Diaz Suit Asserts ADA Violation ------------------------------------------------- A class action lawsuit has been filed against Brightstar Group Holdings, Inc. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. Brightstar Group Holdings, Inc., doing business as: Brightstar Care, Case No. 1:18-cv-07960 (S.D.N.Y., August 30, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. Brightstar Group Holdings Inc. operates as a holding company. The Company, through its subsidiaries, provides health care services such as senior home care, child care, elder care, newborn care, and nanny 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 BROOKLYN GASTROENTEROLOGY: Picon Suit Asserts ADA Violation ----------------------------------------------------------- A class action lawsuit has been filed against Brooklyn Gastroenterology and Endoscopy, PLLC. The case is titled Yelitza Picon and on behalf of all other persons similarly situated v. Brooklyn Gastroenterology and Endoscopy, PLLC, Case No. 1:18-cv-07936 (S.D.N.Y., August 30, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Brooklyn Gastroenterology and Endoscopy, PLLC, is located off the Belt Parkway in Brooklyn, New York. The Company's state-of-the-art facility provides a multidisciplinary approach to the treatments of gastrointestinal disease. The Company's physicians provide medical care, ranging from the most advanced endoscopic procedures to the treatment of intestinal, hepatic, biliar, and pancreatic diseases.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com CARDINAL INNOVATIONS: Settles Class Action Over Unpaid OT Wages --------------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that a settlement appears to have been reached in a federal class-action lawsuit involving claims of violation of federal wage standards by Cardinal Innovations affecting about 100 employees. The lawsuit by primary plaintiff Molly Kirkpatrick of York, S.C., and seven others was filed in August 2016. She is employed by Cardinal as an intellectual/development disability (I/DD) care coordinator. The settlement notice was filed on Aug. 13 in U.S. District Court for the Middle District of North Carolina. In a joint motion, the parties said they completed mediation Aug. 3 and reached a settlement "that provides a framework for the resolution of this class action." They were expected to complete a final version of a written agreement by Aug. 17. Cardinal is the largest of the state's seven behavioral-health managed-care organizations, with more than 875,000 enrollees. It covers 20 counties, including Alamance, Davidson, Davie, Forsyth, Rockingham and Stokes in the Triad, in overseeing providers of mental-health, developmental-disability and substance-abuse services. Cardinal handles more than $675 million in annual federal and state Medicaid money. Ms. Kirkpatrick claims that Cardinal, under the management of now-fired chief executive Richard Topping Jr. and oversight of a since-disbanded board of directors, violated the federal Fair Labor Standards Act by not providing overtime pay for work outside 40 hours a week "that takes them outside the learned-professional exemption." The act establishes minimum-wage, overtime-pay, record-keeping and child-labor standards affecting full- and part-time workers in the private sector and in federal, state and local governments. Ms. Kirkpatrick claims that she and more than 100 other potential plaintiffs' employment status have been misclassified by Cardinal. Ms. Kirkpatrick estimated that on a near-weekly basis, she worked between 41 to 66½ hours without receiving overtime pay. She said she was paid instead a straight 40-hour weekly salary. She is pursuing compensation to cover the missing overtime pay. U.S. District Judge Thomas Schroeder has approved making any Cardinal I/DD care counselor from the past four years eligible to be included in the lawsuit. Cardinal's official comment under previous management and board oversight has been to deny the allegations and oppose the lawsuit. On Aug. 14, Cardinal said that "while specific details of that settlement are still pending, our I/DD care coordinators will remain salaried, exempt employees." They are "an integral part of Cardinal Innovations' community-based approach to care," the managed-care organization said. "We value their skill, experience and qualifications, and compensate them accordingly." N.C. Secretary of Health Mandy Cohen formally removed Mr. Topping from the company Nov. 27 as part of the state's takeover of Cardinal. Cohen also disbanded the Cardinal board at that time. The new board named Trey Sutten as Cardinal's chief executive in January. The new board sued Mr. Topping on March 26 as part of an attempt to recover about $3.8 million in severance pay from four former Cardinal officials. Cardinal reimbursed the state the $3.8 million from the organization's administrative funds. In May, Mr. Topping filed a countersuit to thwart the attempt at recovering $1.68 million he received in his severance package. In June, Mr. Topping sued a former federal prosecutor for libel and slander for his role in investigating Topping's management actions. Cardinal spokeswoman Ashley Conger said on Aug. 14 the agency has no update on the Topping lawsuits. [GN] CENTERPOINTE LENDING: Milosch Suit Alleges TCPA Violation --------------------------------------------------------- Chris Milosch, individually and on behalf of all others similarly situated v. Centerpointe Lending Studen Loan Services and Does 1 through 10, Case No. 8:18-cv-01335 (C.D. Calif., August 1, 2018), seeks damages and other available legal or equitable remedies pursuant to the Telephone Consumer Protection Act. The Plaintiff is a resident of Laguna Niguel, California. The Defendant Centerpointe Lending Studen Loan Services is a student loan forgiveness document preparation company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: (877) 206-4741 Fax: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com CENTRAL MAINE: Faces Class Action Over Alleged Fraud ---------------------------------------------------- Liam Nee, writing for NEWS CENTER Maine, reports that a new class action lawsuit against Central Maine Power (CMP) was scheduled to be filed Aug. 15, accusing the electric utility company of fraud. The impending suit alleges CMP trained its service personnel to tell customers that the customer is at fault and that the power company did nothing wrong, an attorney associated with the legal filings said. "Rather than acknowledging the errors," the complaint reads, "the power company told their customers the following: 1) the cold snap caused your furnace to be running more; 2) bad wiring in your house; 3) electrical appliances are causing over usage; 4) your appliances are old; 5) your kids must be playing too many video games; 6) it's a heat pump; 7) it must be your well pump." "All of this was done to hide the real story," the lawsuit claims, "that CMP's software program and meters were defective. The CMP personnel knew when the statements were made to the customers 'that it was the customers' fault.'" The impending suit accuses CMP of serving a "disconnect notice" through its software program when customers did not pay, knowing bills were excessive and that customers were entering the winter season. "People were caused to readjust their priorities so as to not lose their heat during the winter," the litigation claims, "so some went without food and medications." Four lead plaintiffs will represent the class: Mark Levesque, involved in a previous class action filing; Christie Decker of Wilton; Lisa McLeod of Greenwood; and Michael Platt of Corinna. The plaintiffs intend to seek "excessively charged" amounts from CMP as well as "punitive damages for fraud perpetrated on Maine citizens" from both CMP and its parent company, Avangrid, Augusta attorney Sumner Lipman said. An initial lawsuit against CMP was filed July 19 by Augusta law firm Lipman & Katz; Auburn law firm Trafton, Matzen, Belleau & Frenette; and New York law firm Napoli & Shkolnik, on behalf of class representative Mark Levesque. Its basis was one count of "unjust enrichment," Mr. Lipman said. [GN] CHECK-6 INC: Faces Goodly Suit in East. Dist. Louisiana ------------------------------------------------------- A class action lawsuit has been filed against Check-6 Inc., et al. The case is titled as Joseph Goodly, on behalf of himself and other persons similarly situated v. Check-6 Inc., Yarema Sos, Brian Brurud, Dennis Romano, S. Eric Benson, Laura Owen and John Dillon, Case No. 2:18-mc-08269-LMA-DEK (E.D. La., August 30, 2018). Check-6 Inc. provides training services to the oil, gas, energy, and mining industries in the United States and internationally. The Company offers rig training program, and provides customized training, mentoring, and coaching on the fundamentals of operating in a high-risk/high-reliability environment; strategic communications program, an interactive discussion that helps further define the expectations of leaders within a company in a practical way; high reliability leadership curriculum; company-planned events, meetings, and workshops; checklists and hazard identification programs; SEMS audits; and keynote services.[BN] The Defendants are represented by: Rodney J. Lacoste, Jr., Esq. Jordan M. Jeansonne, Esq. PERRIER & LACOSTE, LLC 365 Canal Street, Suite 2550 New Orleans, LA 70130 Telephone: (504) 212-8820 E-mail: rlacoste@perrierlacoste.com jjeansonne@perrierlacoste.com CHICAGO: Police Keeps Discriminatory Database, Says Suit -------------------------------------------------------- Chicagoans for an End to the Gang Database: Black Youth Project 100 Chicago, Blocks Together, Brighton Park Neighborhood Council, Latino Union, Mijente and Organized Communities Against Deportation, as well as Donta Lucas, Jonathan Warner, Lester Cooper, and Luis Pedrote-Salinas, on behalf of themselves and a class of similarly situated persons, Plaintiffs, v. City of Chicago, Superintendent Eddie Johnson, and Chicago Police Officers Michael Tomaso, Michael Golden, Peter Toledo, John Does 1-4 and Jane Does 1-2, Defendants, Case No. 18-cv-04242 (N.D. Ill., June 19, 2018), seeks to enjoin the Chicago Police District from maintaining a discriminatory Gang Database in violation of the Equal Protection and Due Process Clauses, and providing gang designations to any third party entity; compensatory and punitive damages; reasonable attorneys' fees and costs; and such other and further relief pursuant to the Illinois Civil Rights Act of 2003 and in violation of the Fourth and Fourteenth Amendment. The complaint says the Chicago Police Department uses, maintains, publishes, and shares a Gang Database of all suspected gang members in the City of Chicago that is arbitrary, discriminatory, over-inclusive and error-ridden, and disproportionately targets Black and Latino people for inclusion in the Gang Database. Police officers wield this discretion in a discriminatory manner, often falsely labeling people gang members based solely on their race and neighborhood, it adds. [BN] Plaintiff is represented by: Sheila A. Bedi, Esq. Vanessa del Valle, Esq. MACARTHUR JUSTICE CENTER Northwestern Pritzker School of Law 375 E. Chicago Avenue Chicago, IL 60611 Tel: (312) 503-2492 Email: sheila.bedi@law.northwestern.edu vanessa.delvalle@law.northwestern.edu - and - Elizabeth A. Homsy, Esq. The Law Officers of Elizabeth A. Homsy 2506 N. Clark Street, Suite 286 Chicago, IL 60614 Tel: (773) 988-3486 - and - Brendan Shiller, Esq. Chris Bergin, Esq. Tia Haywood, Esq. SHILLER PREYAR LLC 601 S. California Avenue Chicago, IL 60612 Tel: (312) 226-4590 Email: brendan@shillerpreyar.com chris@shillerpreyar.com Thaywood4u@gmail.com - and - Joey L. Mogul, Esq. People's Law Office 1180 N. Milwaukee Ave. Chicago, IL 60622 Tel: (773) 235-0070 CHICKPEA AT 14TH: Pacheco Suit Seeks Civil Damages -------------------------------------------------- Jorge Pacheco, on behalf of himself and class of similarly situated individuals v. Chickpea at 14th Street Inc., et al., Case No. 1:18-cv-06907 (S.D. N.Y., August 1, 2018), seeks civil damages against the Defendants for fraudulent filing of information returns. Throughout his entire employment, the Plaintiff was paid in cash, and was not given any form of wage statement when he received his pay, says the complaint. The Defendants failed to withhold any of Plaintiff's wages for tax purposes. The Defendants further failed to provide Plaintiff with an accurate W-2 tax statement for each tax year during which Plaintiff worked, the complaint asserts. The Plaintiff, Jorge Pacheco was employed by the Defendants as a dishwasher from in or around July 2015 until in or around September 2017. The Defendants operate a restaurant and catering enterprise under the common trade name "Chickpea." Chickpea operates seven restaurant locations in New York State and facilitates corporate catering throughout the New York City area via the internet.[BN] The Plaintiff is represented by: C.K. Lee, Esq. William Brown, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 CINEMARK USA: Court Certifies Class in Overtime Rates Suit ---------------------------------------------------------- The United States District Court for the Northern District of California granted Plaintiffs' Motion for Class Certification in the case captioned JOSEPH AMEY, et al., Plaintiffs, v. CINEMARK USA INC, et al., Defendants. Case No. 13-cv-05669-WHO. (N.D. Cal.). Plaintiff Silken Brown, a former employee of Cinemark USA Inc., (Cinemark) who worked for seven months at the theater in the San Francisco-Westfield Mall, claims that Cinemark is liable for failing to properly list overtime rates on wage statements. The Plaintiffs seek certification under Rule (b)(3), requiring them to establish that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. CLASS CERTIFICATION OF THE DIRECT WAGE STATEMENT CLAIM The present motion seeks to certify a putative class consisting of all current and former non-exempt employees who worked for Defendants in California at any time from December 3, 2011 through the present, and were paid overtime compensation during at least one pay period, for the direct wage statement claim pursuant to Rule 23. Cinemark only disputes the typicality and adequacy requirements of Rule 23(a), and the predominance requirement of Rule 23(b). Typicality For class certification, Brown's claims must be typical of claims advanced by the class. The typicality test is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Under the rule's permissive standards, representative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical. Unique defenses against a class representative counsel against class certification only where they threaten to become the focus of the litigation. Cinemark challenges typicality, claiming that Brown is subject to unique defenses such as a lack of standing and mootness because she settled her individual claim. Despite this attempted carve out, Cinemark points to language in the settlement agreement that Plaintiff agrees to settle, release, and waive any and all individual claims against Defendants for any and all individual claims raised or that could have been raised in the Action through the date of the Agreement. It contends, therefore, that Brown is no longer a member of the class she attempts to represent since she voluntarily settled her claims. It further argues that Brown's interest in attorneys' fees is insufficient to confer standing. The correct inquiry for typicality is whether Brown suffered the same type of injury from Cinemark's conduct as other class members. Brown was a California employee for Cinemark for seven months during the putative class period, and she was given the same allegedly incorrect wage statements as other class members. Her asserted injury at the time of the alleged inaccurate wage statements was identical to those of absent class members and stems from the same conduct by Cinemark. Typicality is satisfied. Adequacy of Representation Rule 23(a)(4) requires Brown to be deemed capable of adequately representing the interests of the entire class, including absent class members. Cinemark argues that since Brown has settled her individual claim, she does not have an incentive to represent the class and her interests no longer align with the class. Brown indicates that she has no conflicts of interest with the class and that there is no evidence of antagonism. Cinemark questions whether Brown will vigorously pursue her claims on behalf of the putative class without a personal financial interest in the settlement. Brown has demonstrated and is demonstrating vigorous pursuit of the claims. Brown and her counsel have been litigating this case for years, completing an individual settlement with the intent to appeal, prevailing on that appeal, and now pursuing a second class certification motion for the direct wage claim. Brown's counsel has ample experience in prosecuting wage and hour class actions such as this case. The adequacy requirement is satisfied. Predominance Rule 23(b)(3) requires that questions of law or fact common to class members predominate over any questions affecting only individual members. To recover damages for Cinemark's failure to accurately reflect overtime pay in their wage statements, an employee must demonstrate an injury that resulted from a knowing and intentional failure to comply with California Labor Code section 226(a), which states, every employer shall furnish each of his or her employees, an accurate itemized statement in writing showing all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The central issue is whether the injury required for damages is proven with actual individual injury or is presumed by the error that appeared on the 66,527 wage statements. If an injury under Section 226(e) is presumed from the erroneous wage statements, there is little individualized inquiry required to establish liability and common questions would predominate. Cinemark relies on several cases, including to claim that the requisite injury in this case must be individually demonstrated from the missing information and may not be presumed. Brown responds that the cases cited by Cinemark predate or do not account for the 2013 amendment to the Labor Code, which contains plain language that employees are deemed to suffer injury for purposes of this subdivision when their wage statements contain errors. In this case, damages are determined by the objective standard of an injury under the 2013 amendment. Whether a putative class member can promptly determine information as required by 226(a) is a common question with a common form of proof. Cinemark's liability for the direct wage statement claim is answerable by common forms of proof like Cinemark's uniform wage statements, and testimony of leadership at Cinemark regarding knowledge and intent of any errors in the wage statements. A full-text copy of the District Court's August 16, 2018 Order is available at https://tinyurl.com/ya33g5y5 from Leagle.com. Joseph Amey, Individually and on behalf of all others similarly siturated, Plaintiff, represented by Hannah Ruth Salassi , Lvovich & Szucsko, P.C., Scott Edward Cole -- scole@scalaw.com -- Scott Cole & Associates, APC, Christopher Brian Johnson , Scott Cole & Associates APC, Courtland Wayne Creekmore -- ccreekmore@scalaw.com -- Scott Cole & Associates, APC, Jonathan Sing Lee -- Jonathan.Lee@capstonelawyers.com -- Capstone Law APC, Matthew Roland Bainer -- mbainer@bainerlawfirm.com -- The Bainer Law Firm, Stan Karas -- SKaras@glancylaw.com -- Capstone Law APC & Stephen Noel Ilg , Ilg Legal Office, P.C. Silken Brown, individually and on behalf of other members of the general public similarly situated and as aggrieved employees pursuant to the Private Attorneys General Act ("PAGA"), Plaintiff, represented by Jonathan Sing Lee , Capstone Law APC, Katherine Ward Kehr , Capstone Law APC, Scott Edward Cole , Scott Cole & Associates, APC, Christopher Brian Johnson , Scott Cole & Associates APC, Liana Carol Carter , Capstone Law APC, Matthew Roland Bainer , The Bainer Law Firm, Melissa Grant , Capstone Law APC, Robert Joseph Drexler, Jr. , Capstone Law APC, Stan Karas , Capstone Law APC & Stephen Noel Ilg , Ilg Legal Office, P.C. Mario De La Rosa, individually and on behalf of other members of the general public similarly situated and as aggrieved employers pursuant to the Private Attorneys General Act ("PAGA"), Plaintiff, represented by Jonathan Sing Lee , Capstone Law APC, Katherine Ward Kehr , Capstone Law APC, Matthew Thomas Theriault , Capstone Law APC, Scott Edward Cole , Scott Cole & Associates, APC, Christopher Brian Johnson , Scott Cole & Associates APC, Liana Carol Carter , Capstone Law APC, Matthew Roland Bainer , The Bainer Law Firm, Melissa Grant , Capstone Law APC, Robert Joseph Drexler, Jr. , Capstone Law APC, Stan Karas , Capstone Law APC & Stephen Noel Ilg , Ilg Legal Office, P.C. Cinemark USA Inc, Defendant, represented by Emily Burkhardt Vicente -- ebvicente@HuntonAK.com -- Hunton Andrews Kurth LLP, Matthew I. Bobb -- mbobb@HuntonAK.com -- Hunton Andrew Kurth LLP & Michael Brett Burns -- mbrettburns@HuntonAK.com -- Hunton Andrews Kurth LLP. COGNIZANT TECHNOLOGY: Robbins Arroyo Probes Securities Claims ------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Cognizant Technology Solutions Corporation (NasdaqGS: CTSH) breached their fiduciary duties to shareholders. Cognizant, a professional services company, provides consulting, technology, and outsourcing services worldwide. Investors filed a class action complaint against Cognizant for alleged violations of the Securities Exchange Act of 1934. According to the complaint, Cognizant officials engaged in an illegal bribery scheme by making improper payments to obtain permits and building licenses for some of the company's facilities in India. In so doing, Cognizant failed to enforce the company's controls related to real estate and procurement in connection with those facilities, all while falsely assuring investors that the company operated under strict compliance with its anticorruption policy. On August 8, 2018, Senior U.S. District Court Judge William H. Walls denied in part defendants' motion to dismiss plaintiff's complaint, paving the way for litigation to proceed. Cognizant Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] COMMONWEALTH FINANCIAL: Sellers Sue Over FDCPA Violations ---------------------------------------------------------- A class action lawsuit has been filed against Commonwealth Financial Systems, Inc., et al. The case is titled as Brittany Sellers, individually and on behalf of all others similarly situated v. Commonwealth Financial Systems, Inc. and John Does 1-25 and Pendrick Capital Partners LLC, Case No. 2:18-cv-07576 (C.D. Cal., August 30, 2018). The lawsuit arises from alleged violations of the Fair Debt Collection Practices Act. Commonwealth Financial Systems, Inc., provides financial services. The Company offers first party outsourcing, check collection, skip tracing, billing services, and debt purchasing services. Pendrick Capital Partners provides consumer debt underwriting and servicing services. The Company is based in Key West, Florida.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. LAW OFFICES OF JONATHAN A STIEGLITZ 11845 West Olympic Boulevard, Suite 800 Los Angeles, CA 90064 Telephone: (323) 979-2063 Facsimile: (323) 488-6748 E-mail: jonathan.a.stieglitz@gmail.com CREDIT PROTECTION: Accused by Friedman Suit of Violating FDCPA -------------------------------------------------------------- A class action lawsuit has been filed against Credit Protection Association L.P. The case is styled as Aharon Friedman, individually and on behalf of all others similarly situated v. Credit Protection Association L.P., Case No. 7:18-cv-07924 (S.D.N.Y., August 30, 2018). The Plaintiff accuses the Defendant of violating the Fair Debt Collection Practices Act. Headquartered in Dallas, Texas, Credit Protection Association L.P. is a debt collector, and is licensed to collect debts nationwide.[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 CVS PHARMACY: Averts Class Action over Flu Shot Text Messages ------------------------------------------------------------- Bill Wichert, writing for Law360, reports that a New Jersey federal judge on Aug. 14 nixed a putative class action against CVS Pharmacy Inc. for allegedly violating the Telephone Consumer Protection Act by notifying customers about the availability of flu shots via text messages, finding that the messages fell under the so-called "health care exemption." U.S. District Judge Peter G. Sheridan said that exemption from the TCPA liability applied to the matter because the company is a health care provider and the text messages conveyed a health care message. [GN] CVS PHARMACY: Court Won't Certify Pharmacy Technicians' Class ------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania denied Plaintiffs' Renewed Motion for Class Certification in the case captioned KEITH ROBERT DEAN, JR., and ERIKA PRESSLEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. CVS PHARMACY, INC., and CVS CAREMARK CORPORATION, Defendants. Civil Action No. 14-2136. (E.D. Pa.). This is a putative class action on behalf of pharmacy technicians against Defendant CVS Pharmacy, Inc., and CVS Caremark Corporation (CVS). Plaintiff Keith Dean alleges that CVS forced technicians to complete necessary educational certifications without pay in violation of state wage protection statutes and basic contract law, and, to that effect. Rule 23(a) requires that (1) the class is so numerous that joinder of all members is impracticable (numerosity) (2) there are questions of law or fact common to the class (commonality) (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality) and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). The Plaintiff seeks certification here under subsection (b)(3), which further requires that the questions of law or fact common to class members predominate over any questions affecting only individual members (predominance), and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy (superiority). The Plaintiff has failed to meet the requirements of Rule 23(a) because he has not demonstrated commonality and typicality. Plaintiff contends that he completed training modules on his own time after hours, and in response to his repeated inquiries as to how he would be compensated for that time, he was advised by his supervisors that he was not entitled to any compensation. But after extensive discovery, the record supports the conclusion that Plaintiff's situation was an anomaly, the result of his supervisors being ill-informed, and not representative of pharmacy technicians in general. The Plaintiff has also failed to show that his claims or defenses are typical of the class. Unlike the commonality requirement, typicality requires more than just one unifying factual or legal question. Rather, it entails an inquiry as to whether the named plaintiff's individual circumstances are markedly different or the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based. The proposed class also fails to meet the additional requirement of predominance under Rule 23(b)(3). The predominance inquiry requires the court to "formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case." Here, the legal issues that Plaintiff cites as predominant are not, because, as noted above, CVS does not contest the right of technicians to be paid for training time, and whether it has denied payment to any technician besides Dean will require individualized determination. Superiority is also lacking here. Subsection (b)(3)(C) of Rule 23 focuses the Court's attention on the desirability of concentrating the claims in one judicial forum and on the record as it stands, Dean's claim might be unique. Subsection (b)(3)(D) requires consideration of the likely difficulties in managing a class action. Given the fact-specific analysis that was required simply to address the motions for summary judgement, it is apparent that no simple rule can be applied to determine the merits of each individual claim. A full-text copy of the District Court's August 16, 2018 Memorandum is available at https://tinyurl.com/yd3e9wy3 from Leagle.com. KEITH ROBERT DEAN, JR., ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by MICHAEL D. DONOVAN , DONOVAN LITIGATION GROUP, LLC, & PHILIP J. GORDON -- pgordon@gordonllp.com -- GORDON LAW GROUP LLP. MARILYN MONROE & ERIKA PRESSLEY, Plaintiffs, represented by MICHAEL D. DONOVAN , DONOVAN LITIGATION GROUP, LLC. CVS PHARMACY, INC. & CVS CAREMARK CORPORATION, Defendants, represented by STEPHANIE JILL PEET -- stephanie.peet@jacksonlewis.com -- JACKSON LEWIS P.C. & FELICE B. EKELMAN -- Felice.Ekelman@jacksonlewis.com -- JACKSON LEWIS. DESERT DE ORO: Gauntt Suit Seeks to Recover Unpaid Wages Under FLSA ------------------------------------------------------------------- Brandon Gauntt, individually and on behalf of similarly situated persons, Plaintiff, v. Desert De Oro Foods, Inc., Mark Peterson, and Krystal Burge, Defendants, Case No. 18-cv-01919 (D. Ariz., June 19, 2018), seeks to recover unpaid minimum wages and overtime hours owed under the Fair Labor Standards Act. Desert De Oro Foods operates numerous Pizza Hut franchise stores where Gauntt worked as a delivery driver. He uses his own automobile to deliver pizza. The complaint says the Defendant use a flawed method to determine reimbursement rates that provides such an unreasonably low rate beneath any reasonable approximation of the expenses they incur that the unreimbursed expenses cause wages to fall below the federal minimum wage.[BN] The Plaintiff is represented by: Matthew Haynie, Esq. Jay Forester, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street #201 Dallas, TX 75202 Phone: (214) 210-2100 Email: matthew@foresterhaynie.com jay@foresterhaynie.com DIVERSIFIED CONSULTANTS: Weiss Files FDCPA Breach Suit in N.Y. -------------------------------------------------------------- A class action lawsuit has been filed against Diversified Consultants Inc. The case is titled as Joel Weiss, individually and on behalf of all others similarly situated v. Diversified Consultants Inc., Case No. 1:18-cv-04942 (E.D.N.Y., August 30, 2018). The lawsuit arises from alleged violations of the Fair Debt Collection Practices Act. Diversified Consultants, Inc., provides claims collection services. The Company offers pre-collection, claims adjustment, bad debt management, third party transfer, and client access services.[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 DIVINE AND SERVICE: Nicolaides Sues Over FDCPA Violations --------------------------------------------------------- A class action lawsuit has been filed against Divine and Service LTD. The case is styled as Nestor Nicolaides, individually and on behalf of all others similarly situated v. Divine and Service LTD., Case No. 2:18-cv-04945-JFB-AYS (E.D.N.Y., August 30, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Divine & Service Ltd. was founded in 1997. The Company's line of business includes collection and adjustment services on claims and other insurance related issues.[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 EATON CORP: Court Dismisses 2nd Amended Securities Suit ------------------------------------------------------- In the case, IN RE: EATON CORPORATION SECURITIES LITIGATION, Case No. 16-cv-5894 (JGK) (S.D. N.y.), Judge John G. Koeltel of the U.S. District Court for the Southern District of New York granted the Defendants' Motion to Dismiss the Second Amended Consolidated Class Action Complaint. The lawsuit is a securities action purportedly brought on behalf of a class of all purchasers of publicly traded common stock and/or exchange-traded options on such common stock of Eaton between May 21, 2012 and July 28, 2014, so long as they purchased at least one share or option from Nov. 13, 2013 through July 28, 2014, inclusive. The lead Plaintiff, South Carolina Retirement Systems Group Trust, asserts violations of Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, against Eaton and two senior executives of the Company, namely, Alexander M. Cutler and Richard H. Fearon. The Plaintiff also asserted control person liability under Section 20(a) of the Exchange Act against the individual Defendants. On Jan. 13, 2017, the lead Plaintiff filed a Consolidated Class Action Complaint ("CCAC"). Generally, the CCAC alleged that Cutler and Fearon made misleading statements following the merger regarding whether Eaton was able to spin-off the vehicle business on a tax-free basis. The CCAC alleged that Cutler and Fearon misled the market into believing that there were no restrictions on Eaton's ability to spin-off the automotive business when in reality Eaton could not complete a tax-free spin-off for five years following the merger. In an Opinion and Order dated Sept. 20, 2017, the Court dismissed the CCAC without prejudice for failure to plead any material misrepresentations or scienter. On June 8, 2018, the Plaintiff filed a Second Amended Consolidated Class Action Complaint ("SAC"). In the SAC, the Plaintiff asserts the same theory of fraud, namely that the Defendants misled the plaintiff and the market when they failed to disclose that the automotive business could not be spun-off on a tax-free basis for five years following Eaton's merger with Cooper. However, the SAC includes several new allegations, including additional alleged misstatements, additional references to analyst reports, and two expert opinions. The SAC also adds references to, and quotes from, additional analyst reports discussing a potential spin-off of the automotive business. It also includes opinions from two experts regarding the economic viability of a taxable sale of the automotive business. The Defendants now move to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). They argue that (i) the Plaintiff cannot expand the class period to encompass misrepresentations that were made between May 21, 2012 and Nov. 12, 2013 because claims from the expanded class period are allegedly barred by the statute of limitations; (ii) the amendments in the CCAC do not undermine the Court's finding that the Defendants were under no duty to disclose the potential tax consequences of a spin-off of the automotive division because they had repeatedly stated that they did not intend to complete the spin-off and they never did spin-off that division; and (iii) the SAC does not allege facts supporting a strong inference of scienter. Judge Koeltel the fact that the Plaintiff has successfully expanded the class period does not affect the rationale for the dismissal of the action. In its original decision dismissing the CCAC, the Court found that all of the misstatements alleged, except for the Nov. 13, 2013 alleged misstatement, were not actionable because they were not made during the class period. Nevertheless it went on to consider the merits of all of the eight alleged misstatements and found that none of them was actionable. Similarly, none of the statements alleged in the SAC is actionable. The Judge finds that the SAC fails to overcome the flaws of the CCAC with respect to the pleading of material misstatements or omissions. Like the CCAC, the SAC does not allege plausibly that the Defendants made any material misstatements or that Eaton was subject to a duty to disclose the hypothetical tax consequences of a theoretical spin-off of Eaton's automotive business that Eaton repeatedly disclaimed it had any intention to complete, and never did. The allegations in the SAC do not change the Court's finding that the compelling opposing inference is that neither Cutler nor Fearon thought that they had any obligation to discuss the possible tax consequences of a theoretical spin-off that Eaton had no plans to make, and that neither executive intended to deceive anyone about such tax consequences. Therefore, the Judge holds the SAC does not adequately plead a strong inference of scienter. Finally, because the Plaintiff has not alleged a plausible primary violation of Section 10(b) and Rule 10b-5, the Plaintiff has not satisfied the elements of a Section 20(a) claim, and that claim must also be dismissed. Judge Koeltel has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For all of the reasons explained in the Court's original opinion dismissing the CCAC, and the reasons he explained, the Judge granted the Defendants' motion to dismiss. The Clerk of Court is directed to enter judgment dismissing the action and closing the case. A full-text copy of the Court's July 25, 2018 Memorandum Opinion and Order is available at https://is.gd/zw9OCQ from Leagle.com. South Carolina Retirement Systems Group Trust, Lead Plaintiff, represented by Christopher J. Keller -- keller@labaton.com -- Labaton Sucharow, LLP, Francis Paul McConville -- fmcconville@labaton.com -- Labaton & Sucharow LLP, Louis Gottlieb -- lgottlieb@labaton.com -- Labaton Sucharow, LLP, Thomas A. Dubbs -- tdubbs@labaton.com -- Labaton Sucharow, LLP, Irina Vasilchenko -- ivasilchenko@labaton.com -- Labaton & Sucharow LLP & Jeffrey Aaron Dubbin -- jdubbin@labaton.com -- Labaton & Sucharow LLP. Steamfitters Local 449 Pension Plan, individually and on behalf of all others similarly situated, Plaintiff, represented by Francis Paul McConville, Labaton & Sucharow LLP, Louis Gottlieb, Labaton Sucharow, LLP, Irina Vasilchenko, Labaton & Sucharow LLP, Jeffrey Aaron Dubbin, Labaton & Sucharow LLP, Christopher J. Keller, Labaton Sucharow, LLP & Thomas A. Dubbs, Labaton Sucharow, LLP. Helene Karafin Gabriele, Individually and on behalf of all others similiary situated, Consolidated Plaintiff, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP & Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP. Louisiana Sheriffs Pension & Relief Fund, Movant, represented by Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP. The Council of the Borough of South Tyneside Acting in Its Capacity as the Administering Authority of the Tyne and Wear Pension Fund, Movant, represented by David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Eaton Corporation PLC, Alexander Cutler & Richard Fearon, Defendants, represented by James Ellis Brandt -- james.brandt@lw.com -- Latham & Watkins LLP & Jeff G. Hammel -- jeff.hammel@lw.com -- Latham and Watkins. International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware, Interested Party, represented by Mary Sikra Thomas, Grant & Eisenhofer, PA. ESTES FORWARDING: Faces Kirkland Suit in Calif. Superior Court -------------------------------------------------------------- A class action lawsuit has been filed against Estes Forwarding Worldwide LLC, et al. The case is styled as GISELLE KIRKLAND, ON BEHALF OF HERSELF, ALL OTHERS SIMILARLY SITUATED v. ESTES FORWARDING WORLDWIDE LLC, A VIRGINIA LIMITED LIABILITY COMPANY and DOES 1 TO 50, Case No. CGC18569316 (Cal. Super. Ct., San Francisco Cty., August 30, 2018). Estes Forwarding Worldwide LLC provides logistics services. The Company offers truckload, consolidation, documentation, supply chain, warehousing, distribution management, and other services.[BN] The Plaintiff is represented by: Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 9454 Wilshire Blvd., Suite 907 Beverly Hills, CA 90212-2911 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com EXXON MOBIL: Bid to Dismiss Climate-Change Accounting Case Tossed ----------------------------------------------------------------- Tom Korosec, writing for Bloomberg News, reports that Exxon Mobil Corp. must face a lawsuit by investors who blamed a drop in the company's shares on the disclosure that regulators were scrutinizing its reserve accounting related to climate change. U.S. District Judge Ed Kinkeade on Aug. 14 denied Exxon's bid to dismiss the suit. Judge Kinkeade wrote that the Greater Pennsylvania Carpenters Pension Fund sufficiently pleaded securities fraud claims against the oil giant and several executives, including former Chief Executive Officer Rex Tillerson. In the case in Dallas federal court, investors said the Irving, Texas-based company refused to write down any of its oil and gas reserves in the face of declining oil prices. On Aug. 13, Exxon said in a court filing that the Securities and Exchange Commission concluded its investigation into the company and didn't recommend any enforcement action. The case is Ramirez v. Exxon Mobil Corp., 3:16-cv-3111, U.S. District Court, Northern District of Texas (Dallas). [GN] EZCORP INC: J. Rooney Can File TAC in Securities Suit ----------------------------------------------------- In the case, JOHN ROONEY, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. EZCORP, INC. and MARK E. KUCHENRITHER, Defendants, Cause No. A-15-CA-00608-SS (W.D. Tex.), Judge Sam Sparks of the U.S. District Court for the Western District of Texas, Austin Division, granted the Plaintiff's Motion for Leave to File Third Amended Class Action Complaint. The case is a securities fraud class action brought on behalf of all persons who purchased Class A common stock of Defendant EZCORP -- a company which provides instant cash services like payday loans and pawn loans -- between Nov. 7, 2013 and Oct. 20, 2015. Lead Plaintiff Rooney, on behalf of the Plaintiff class, alleges that during the Class Period, Defendant Mark Kuchenrither, EZCORP's CFO, CEO, and the only individual Defendant, made material misrepresentations to shareholders in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. The Plaintiff filed the lawsuit on July 20, 2015, alleging the Defendants false and misleading statements caused EZCORP's stock to trade at artificially inflated prices and the Plaintiff suffered financial losses as a result of EZCORP's restated financial reports. The Court granted the Defendants' first motion to dismiss, concluding the Plaintiff failed to plead facts demonstrating a strong inference that Kuchenrither possessed the requisite scienter when the statements were made. The Court's dismissal was without prejudice, and the Plaintiff filed his second amended complaint on Nov. 4, 2016. In the second amended complaint, the Plaintiff again alleged the Defendants violated federal securities law by making false and misleading statements designed to artificially inflate the price of EZCORP's stock. And again, the Defendants moved to dismiss. This time, the Court found the Plaintiff had adequately pled facts giving rise to a strong inference of scienter as to the Loan Sale statements, but not as to the Non-Performing Loan statements. Discovery proceeded on the Plaintiffs surviving claims. During the course of discovery, the Plaintiff uncovered documents allegedly bolstering their allegations of scienter as to misstatements made about the Non-Performing Loans. The Plaintiff now seeks to file a third amended complaint containing new allegations based on these documents. First, the Plaintiff alleges Kuchenrither received an email from Jeff Byal in April 2014 which discussed Grupo Finmart's accounting deficiencies. Second, he alleges Kuchenrither likely received a report on accounting shortcomings at Grupo Finmart before making at least some of the misstatements identified by the Plaintiff. Because the deadline for the filing of amended pleadings has passed, the Plaintiff also seeks leave to amend the scheduling order. The Defendants argue the Court should deny the Plaintiffs motion because the Private Securities Litigation Reform Act ("PSLRA") bars the use of discovery materials to revive previously dismissed claims. They also argue the Court should deny the Plaintiff's motion because he cannot demonstrate good cause to amend the scheduling order under Rule 16(b) and because there is substantial reason to deny leave to amend under Rule 15(a)(2). Judge Sparks finds thatthe Plaintiff's new allegations have remedied the pleading shortcomings previously identified by the Court. The new allegations support a strong inference that Kuchenrither knew or had reason to believe that deficiencies in Grupo Finmart's accounting practices were obscuring weaknesses in the company's loan portfolio. The allegations also suggest Kuchenrither knew of these deficiencies prior to making at least some of the misstatements identified by Plaintiff in late 2014 and early 2015. Thus, because the Plaintiff's new allegations succeed in establishing a strong inference of scienter, the Judge concludes amendment would not be futile. Further, because he finds there is no substantial reason to deny leave to amend, he granted the Plaintiff's Motion for Leave to File Third Amended Class Action Complaint. Though he granted the Plaintiff's motion for leave to amend, he's mindful of the Defendants' desire to avoid unduly delaying the litigation. Therefore,he establishes a number of briefing deadlines aimed at keeping the litigation on schedule. The Defendants will have until Aug. 3, 2018 to file an amended answer, if necessary. The Plaintiff's pending motion for class certification is dismissed without prejudice. The Plaintiff will have until Aug. 31, 2018 to file an amended motion for class certification. A full-text copy of the Court's July 25, 2018 Order is available at https://is.gd/2RCdPD from Leagle.com. John Rooney, Consol Plaintiff, represented by Charles H. Linehan , Glancy Prongay & Murray LLP, Jacob Allen Walker -- Jake@blockesq.com -- Block & Leviton LLP, Jamie Jean McKey -- jmckey@kendalllawgroup.com -- Kendall Law Group PLLC, Jeffrey C. Block -- Jeff@blockesq.com -- Block & Leviton LLP, Joseph D. Cohen -- jcohen@glancylaw.com -- Glancy Prongay & Murray LLP & Joe Kendall -- jkendall@kendalllawgroup.com -- Kendall Law Group, PLLC. EZCORP, Inc., Defendant, represented by Jennifer Barrett Poppe -- jpoppe@velaw.com -- Vinson & Elkins, Michael C. Holmes -- mholmes@velaw.com -- Vinson & Elkins, L.L.P. & Stephen S. Gilstrap -- sgilstrap@velaw.com -- Vinson & Elkins LLP. Mark E. Kuchenrither, Defendant, represented by Alithea Z. Sullivan -- asullivan@ebbklaw.com -- Ewell, Brown & Blanke, LLP, Gary Ewell, Ewell, Brown, Blanke & Knight LLP & Jennifer Barrett Poppe, Vinson & Elkins. FBCS INC: Violates Fair Debt Collection Act, Sellers Suit Says -------------------------------------------------------------- A class action lawsuit has been filed against FBCS, Inc., et al. The case is styled as Brittany Sellers, individually and on behalf of all others similarly situated v. FBCS, Inc., CP Medical, LLC and John Does 1-25, Case No. 2:18-cv-07577-PSG-SS (C.D. Cal., August 30, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. FBCS, Inc., collects consumer debt for healthcare, auto finance, education, utility, and consumer credit industries. CP Medical, LLC, provide healthcare services.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. LAW OFFICES OF JONATHAN A. STIEGLITZ 11845 West Olympic Boulevard, Suite 800 Los Angeles, CA 90064 Telephone: (323) 979-2063 Facsimile: (323) 488-6748 E-mail: jonathan.a.stieglitz@gmail.com FIRSTMARK SERVICES: Can't Compel Arbitration in Goden's Suit ------------------------------------------------------------ In the case, In re: TASHANNA B. GOLDEN, fka TASHANNA B PEARSON, Chapter 7, Debtor. TASHANNA B. GOLDEN, Plaintiff, v. JP MORGAN CHASE BANK, NATIONAL COLLEGIATE TRUST, FIRSTMARK SERVICES, GOLDEN TREE ASSET MANAGEMENT LP, GS2 2016-A (GS2), NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-4, PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY D/B/A AMERICAN EDUCATION SERVICES, Defendants, Case No. 16-40809-ess, Adv. Pro. No. 17-01005-ess (E.D. N.Y.), Judge Elizabeth S. Stong of the U.S. Bankruptcy Court, for the Eastern District of New York denied Firstmark Services' motion to compel arbitration. On Feb. 29, 2016, Golden, formerly known as Tashanna B. Pearson, filed a petition for relief under Chapter 7 of the Bankruptcy Code. On July 28, 2016, the Chapter 7 Trustee filed a no-asset report stating that there is no property available for distribution from the estate over and above that exempted by law. On Aug. 3, 2016, the Court entered an order discharging Ms. Golden, and on that same day, her bankruptcy case was closed. On Dec. 6, 2016, Ms. Golden filed a motion to reopen her bankruptcy case to obtain a determination of the dischargeability of certain of her student loans, and on Jan. 10, 2017, the Court entered an order reopening the case. On Jan. 18, 2017, Ms. Golden commenced the adversary proceeding as a putative class action, on behalf of herself and others similarly situated, by filing a complaint against JP Morgan Chase Bank, Firstmark Services, GoldenTree Asset, and National Collegiate Trust seeking a determination that certain debts that she incurred as a student are not nondischargeable student loan debts under Bankruptcy Code Section 523(a)(8)(B), and a finding of contempt against the Defendants for civil contempt for willful violations of the bankruptcy discharge injunction. On May 31, 2017, the Court approved a stipulation between Ms. Golden and National Collegiate Student Loan Trust 2005-3 and 2006-4, permitting the Trusts to intervene in the action. And on July 25, 2017, the Court approved a stipulation of dismissal as to Defendant JP Morgan Chase Bank. On Oct. 17, 2017, Ms. Golden filed a First Amended Complaint to add class action allegations and additional Defendants. And on Nov. 2, 2017, Ms. Golden voluntarily dismissed Defendant GoldenTree Asset Management from the action. Ms. Golden alleges that the Defendants have knowingly appropriated a legal presumption for a class of debt -- including certain loans that she took out while she was a student at the University of Pennsylvania Law School -- that they know is not entitled to a presumption of nondischargeability. She claims that the Defendants knowingly misled her and other student debtors about the nature of these obligations. Ms. Golden advances these allegations on behalf of an alleged class of similarly situated individuals who have declared bankruptcy since 2005 across the United States, with loans originated or serviced by the Defendants. And Ms. Golden alleges that certain of the debts that she incurred in connection with her law school education are not nondischargeable student loans under Bankruptcy Code Section 523, and that the Defendants, including Firstmark, violated the discharge injunction entered in her bankruptcy case by seeking to collect on these debts after she received her bankruptcy discharge. Ms. Golden requests a declaratory judgment, pursuant to Judiciary Code Section 2201 and Bankruptcy Rule 7001(9), that her debts were discharged by operation of law on Aug. 3, 2016, the date of her bankruptcy discharge, because they are not student loans excluded from discharge under Section 523(a)(8). She claims that since the Defendants were notified of the Discharge Order pursuant to Bankruptcy Rule 4004(g) and still sought to collect on her debts by use of dunning letters, e-mails, text messages, and telephone calls, the Court should cite the Defendants for civil contempt and order them to pay damages in an amount to be determined at trial for willful violations of the Discharge Order and Bankruptcy Code Section 524, and also to pay her attorneys' fees and costs. On Dec. 8, 2017, Firstmark moved to compel arbitration of Ms. Golden's claims, or in the alternative, to dismiss the case, and filed a memorandum of law in support. Firstmark argues that Ms. Golden contractually agreed to arbitrate each of the claims that she asserts here, and that her agreement to arbitrate is valid, irrevocable, and enforceable. It argues that the promissory note that established the terms of the loan at issue, referred to as the Citibank Loan, contains a sweeping arbitration provision. Judge Stong finds that Ms. Golden's claims for a determination that certain of her debts were discharged by operation of law because they are not student loans excluded from discharge under Bankruptcy Code Section 523(a)(8), and that the Defendants violated the Discharge Order, are core matters. The Judge finds that Ms. Golden's allegations and claims for relief seek the enforcement of a court order -- the discharge injunction -- that is central to the statutory scheme and purpose of the Bankruptcy Code. Courts -- not arbitration proceedings -- are the appropriate forums to address alleged violations of court orders. And the resolution of Ms. Golden's claims directly implicates goals and objectives that are central to the purposes of the Bankruptcy Code, including the goal of providing a debtor with a fresh start. For these reasons, the Judge finds that arbitration of Ms. Golden's claims would inherently conflict with the Bankruptcy Code's objectives, and that therefore, the consideration too weighs against compelling arbitration of these claims. For these reasons, she finds that arbitration of Ms. Golden's claims would present a severe and inherent conflict with the Bankruptcy Code, and additionally, that it would necessarily jeopardize the objectives of the Bankruptcy Code. As a result, she declines to compel arbitration of Ms. Golden's claims. Based on the entire record, and for the reasons set forth, Judge Stong concluded that Firstmark Services has not established that the Court should compel arbitration of the claims in the adversary proceeding, and Firstmark Services' Motion to Compel Arbitration is denied. An order in accordance with the Memorandum Decision will be entered simultaneously with Memorandum Decision. A full-text copy of the Court's July 25, 2018 Memorandum is available at https://is.gd/0qGSIh from Leagle.com. Tashanna B Golden, Plaintiff, rrepresented by George F. Carpinello -- gcarpinello@bsfllp.com -- Boies Schiller Flexner, LLP, Adam Shaw -- ashaw@bsfllp.com -- Boies Schiller Flexner LLP, Austin C. Smith -- smitha83@miamioh.edu -- Smith Law Group, Lynn E. Swanson -- swanson@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC & Robert C. Tietjen -- rtietjen@bsfllp.com -- Boies Schiller Flexner LLP. National Collegiate Trust, Defendant, represented by Geoffrey J. Peters --gpeters@weltman.com -- Weltman Weinberg & Reis Co LPA. Firstmark Services, Defendant, represented by Charles F. Kaplan -- ckaplan@perrylawfirm.com -- Perry Guthery Haase & Gessford PC & Barbara L. Seniawski, The Seniawski Law Firm PLLC. GS2 2016-A, National Collegiate Student Loan Trust 2005-3 & National Collegiate Student Loan Trust 2006-4, Defendants, represented by Gregory T. Casamento -- gcasamento@lockelord.com -- Locke Lord LLP, James Matthew Goodin -- jmgoodin@lockelord.com -- Locke Lord LLP & Geoffrey J. Peters, Weltman Weinberg & Reis Co LPA. Pennsylvania Higher Education Assistance Agency, d/b/a American Education Services, Defendant, represented by H. Peter Haveles, Jr. -- havelesp@pepperlaw.com -- Pepper Hamilton LLP & Francis J. Lawall -- lawallf@pepperlaw.com -- Pepper Hamilton, LLP. FORD MOTOR: Kessler Topaz Files Class Action Over Water Pumps ------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on Aug. 14 disclosed that it has filed a class action lawsuit against Ford Motor Company ("Ford") in the Eastern District of Michigan on behalf of all persons in the United States who purchased, own, owned, lease or leased the following vehicles: Ford Edge (2007-2018); Ford Explorer (2011-2018); Ford F150 (2015-2017); Ford Flex (2009-2018); Ford Fusion (2010-2012); Ford Taurus (2008-2018); Lincoln MKX (2007-2010); Lincoln MKZ (2007-2012); and Mercury Sable (2008-2009). The case is Roe, et al. v. Ford Motor Company, Case No. 2:18-cv-12528. Owners or Lessees of Ford vehicles with a defective water pump who wish to discuss their legal rights or interests are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Esq. or Adrienne Bell, Esq.) at (888) 299-7706 or (610) 667-7706, or via e-mail at info@ktmc.com.For additional information please visit: www.ktmc.com/ford-lincoln-water-pump-engine-failure. The complaint alleges that, beginning in 2007 and continuing through the present, Ford has equipped millions of vehicles sold under the Ford, Lincoln and Mercury brand names with the Ford Cyclone Engine, also known as the Duratec engine. Unbeknownst to purchasers and lessees of these vehicles, the Ford Cyclone Engine contains a defect in design, manufacturing, materials and/or workmanship that causes the water pump to suddenly and prematurely fail—before the end of the useful life of the engine—and can lead to catastrophic engine failure. The chain-driven water pump in the Ford Cyclone Engine is located internal to the engine. When the water pump prematurely fails, coolant leaks from the water pump directly into engine parts or the oil pan, destroying essential engine components or mixing with the engine's oil. In many cases, this mixture of engine oil and coolant is carried throughout the engine, leading to destruction of the engine. This often occurs with little to no warning. Despite having knowledge of this defect, Ford has continued selling defective vehicles, has failed to disclose the defect to owners and lessees, has not issued a recall, and has not remedied the issue and/or compensated owners and lessees of the defective vehicles. Kessler Topaz Meltzer & Check, LLP -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check, LLP is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). [GN] FOUNDATION MEDICINE: Bid to Drop Mahoney Class Suit Still Ongoing ----------------------------------------------------------------- Foundation Medicine, 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 court in the case, Mahoney v. Foundation Medicine, Inc., et al. has not yet scheduled oral argument on defendants' motion to dismiss. On July 28, 2017, a purported stockholder of the Company filed a putative class action in the U.S. District Court for the District of Massachusetts, against the Company and certain of its current and former executives, captioned Mahoney v. Foundation Medicine, Inc., et al., No. 1:17-cv-11394. The complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 thereunder based on allegedly false and misleading statements and omissions when providing 2015 financial guidance. The lawsuit seeks among other things, unspecified compensatory damages in connection with the Company's allegedly inflated stock price between February 26, 2014 and November 3, 2015, interest, attorneys' fees and costs, and unspecified equitable/injunctive relief. On December 22, 2017, the plaintiffs filed an amended class action complaint alleging violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder based on allegedly false and misleading statements and omissions concerning providing 2015 financial guidance and other statements during the class period concerning demand and reimbursement for certain of the Company's tests. On February 20, 2018, the Company moved to dismiss the complaint for failure to state a claim, which plaintiffs opposed on April 23, 2018. On June 7, 2018, defendants filed a reply in further support of their motion to dismiss. Foundation Medicine said "The court has not yet scheduled oral argument on defendants' motion to dismiss. We believe this case is without merit and, therefore, continue to vigorously defend ourselves against the allegations." Foundation Medicine, Inc. provides various molecular information products in the United States. The company was founded in 2009 and is headquartered in Cambridge, Massachusetts. Foundation Medicine, Inc. is a subsidiary of Roche Holdings, Inc. GENERAL MOTORS: Faces Class Action Over Air Conditioning Problems ----------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a GM air conditioning class-action lawsuit accuses the automaker of manufacturing and selling a line of trucks and SUVs with air conditioners that stop working. According to the lawsuit, more than 2 million trucks and SUVs in the U.S. share the same air conditioning designs and were built on a vehicle platform known as GMT K2XX. -- 2015-2017 Cadillac Escalade and Escalade ESV -- 2015-2017 Chevrolet Suburban -- 2015-2017 Chevrolet Tahoe -- 2014-2017 GMC Sierra 1500 -- 2015-2016 GMC Sierra Heavy Duty -- 2014-2017 Chevrolet Silverado 1500 -- 2015-2016 Chevrolet Silverado Heavy Duty One of the plaintiffs says he purchased a new 2014 Chevrolet Silverado 1500 LTZ from a Chevy dealer in Florida, and living in Florida means Manning needed a truck with a good working air conditioner. The plaintiff, Steve Manning, claims the air conditioner stopped blowing cold air in March 2017 when the truck had about 50,000 miles on the odometer. He took the Silverado to a GM dealer and technicians said the problem was caused by leaks from the low-pressure condenser hose and the condenser. Mr. Manning says the dealer charged $154.00 for the diagnosis and quoted the repair cost at $1367.17 to use GM parts. However, the dealer allegedly said it couldn't get the parts anytime soon, but repairs could be made with non-GM certified parts for $1663.75. Choosing this route would mean a wait of three months, something the plaintiff didn't want to do in the Florida heat. Mr. Manning says he did research online and discovered GM had allegedly been having a lot of problems with the air conditioning in its vehicles. He also learned GM had created a special bracket (part# 23264893) to prevent failures of the low-pressure condenser hose. According to the plaintiff, he was never told about the part that cost less than $7.00, the same part that would have prevented his air conditioning problems in the first place. The plaintiff also claims the GM parts were unavailable because his air conditioner was out of warranty. Mr. Manning says he found a non-GM part and made the repair himself but paid about $500 to $600 for parts and tools, plus another $150 to recharge the air conditioning system. The lawsuit alleges the plaintiff checked out pickup trucks from Ford and Toyota before he purchased the Chevy Silverado and knowing what he knows now he would not have bought the Silverado if GM would have warned him about the air conditioner failures. Air conditioners work only when the systems are properly sealed to prevent refrigerant from escaping because even a tiny leak will prevent the evaporators from cooling down and sending cold air into the cabins where the occupants are riding. In addition, other system components are at risk of failing or seizing if the refrigerant leaks out. Vehicle condensers are used as heat exchangers where refrigerant enters the condenser hot and is cooled there, but GM further says the condenser functions as a "combination transmission fluid/oil and AC condenser cooler." This means the condenser has multiple lines running into and out of it that carry different fluids at different temperatures. The class-action alleges there are at least two defective components that cause the air conditioners to fail. First is the line leading from the compressor to the condenser, which is really just an aluminum tube connected to a rubber hose. The plaintiffs claim the aluminum tube can disconnect from the rubber hose and allow refrigerant to leak out. GM allegedly no longer manufactures the compressor to condenser line originally used in the vehicles because technical service bulletin (TSB) PIT5331 tells GM technicians to replace the line with a newly designed tube. Additionally, dealers were told in the 2014 TSB to install a bracket to minimize the flexing and movement of the line. However, owners need to pay for this work if technicians perform repairs after the warranties expire. Along with the alleged problems with the compressor to condenser lines, the lawsuit says the air conditioner condensers are defective because the materials used to manufacture the condensers are defective. The plaintiffs claim documents from General Motors prove the automaker knew about the air conditioner defects beginning from the time GM sold the vehicles. The 2014 TSB references "the compressor to condenser line" and notes "[s]ome owners may comment that the a/c is blowing warm." General Motors goes on to write: "If, after performing normal diagnostics and the source of the leak is either not found, or it is found at/near the rear of the compressor, it may be caused by a small crack in the compressor to condenser line. The compressor to condenser line may have a small crack or pinhole located at the inside radius of the first bend near the compressor, as shown below." GM Compressor to Condenser Line Leak "If the a/c line cracks, it may spray oil and refrigerant onto the a/c compressor, making the leak very hard to identify. To repair this condition and prevent it from reoccurring, replace the compressor to condenser line and install the line bracket shown below. After completing the repairs, recharge the refrigerant system and perform a leak test to verify proper operation." The plaintiffs claim the TSB was issued to dealers because of a large number of complaints, then in May 2015 General Motors issued bulletin PIE0340, "A/C Inoperative or Poor Performance on Recent Built Vehicles." The bulletin concerns 2015 models and how "Some customers may comment on the A/C not performing as intended or the A/C not performing at all." According to the plaintiffs, this is further proof GM knew about the defective air conditioners before the vehicles were even on dealer lots. The plaintiffs claim the condensers can't handle normal operations, something GM took note of in November 2017 when the automaker mailed notices to owners. However, the lawsuit alleges only certain customers were mailed the notices that said the vehicles: ". . . may have a condition where thermal cycling on the combination transmission fluid/oil and AC condenser cooler creates a crack that may allow refrigerant to escape. This condition consequently may deactivate the AC system . . . " The letter said GM would provide additional protection for the condition for 5 years or 60,000 miles, whichever occurs first, in Suburbans, Tahoes and Yukons. For owners of Cadillac Escalades the extension was increased to 6 years or 72,000 miles, whichever occurs first. But Silverados and Sierras were not included in this warranty extension. The GM air conditioning class-action lawsuit was filed in the U.S. District Court for the Southern District of Florida, Miami Division - Manning, et al., v. General Motors Company, et al. The plaintiffs are represented by the Hickey Law Firm, P.A., the Law Office of Richard Schechter PC, Reich & Binstock LLP, and the Law Offices of Ernest Bo Hopmann III. [GN] GOLDEN GATE: Blumenthal Nordrehaug Files Class Action ----------------------------------------------------- The Los Angeles Employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Golden Gate America West LLC, alleging that the company failed to lawfully provide meal and rest periods and pay their California employees for all overtime worked. The class action lawsuit against Golden Gate America West LLC, is currently pending in the Los Angeles County Superior Court, Case No. BC714176. The lawsuit alleges the company does not have a policy or practice which provides legally compliant thirty minute uninterrupted meal breaks and paid rest breaks to their California Drivers. The lawsuit further alleges that the failure of Golden Gate America West LLC, to provide the legally required meal and rest period is evidenced by the company's records. The complaint further alleges, DEFENDANT did not have in place an immutable timekeeping system to accurately record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the actual time these employees worked each day, including overtime hours. As a result DEFENDANT was able to and did in fact systematically, unlawfully, and unilaterally alter the time recorded in DEFENDANT's timekeeping system for PLAINTIFF and the members of the CALIFORNIA CLASS in order to avoid paying these employees the applicable overtime compensation for overtime worked and to avoid paying these employees for missed meal breaks. Additionally, the lawsuit alleges that the employees were not reimbursed for all their necessary business expenses incurred on Defendant's behalf. Under California Labor Code Section 2802, employers are required to indemnify employees for all expenses incurred in the course and scope of their employment. Cal. Lab. Code § 2802 expressly states that "an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful." For more information about the class action lawsuit against Golden Gate America West LLC, call (858) 952-0354 to speak to Attorney Nicholas De Blouw. Blumenthal, Nordrehaug Bhowmik De Blouw LLP, is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] GOLDMAN SACHS: Shareholders Can Pursue Class Action Over CDOs ------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that a federal judge on Aug. 14 said Goldman Sachs Group Inc. shareholders may again pursue class-action claims that the bank concealed conflicts of interest when creating risky subprime securities before the 2008 financial crisis. U.S. District Judge Paul Crotty in Manhattan said shareholders could sue as a group because Goldman had not shown it more likely than not that its alleged misstatements had no impact on its stock price. Goldman spokesman Michael DuVally declined to comment. Class actions can allow plaintiffs to seek larger recoveries at lower cost than if they sued individually. The Arkansas Teacher Retirement System and other investors from February 2007 to June 2010 claimed to have lost more than $13 billion because Goldman had in regulatory filings and public comments overstated its ability to manage conflicts. They said Goldman did this while concealing short positions that the Wall Street bank or hedge fund manager John Paulson had made in four subprime mortgage collateralized debt obligations (CDOs). These CDOs included Abacus 2007 AC-1, the centerpiece of a probe that led to Goldman's $550 million settlement of civil claims by the U.S. Securities and Exchange Commission. Goldman did not admit wrongdoing in agreeing to settle. Judge Crotty had certified a class action in September 2015, but the federal appeals court in Manhattan overturned him in January, saying he imposed too high a burden on Goldman. The Aug. 14 decision came after Goldman offered new testimony from two expert witnesses, Harvard Business School professor Paul Gompers and New York University law professor Stephen Choi. But Judge Crotty said a damages model offered by the plaintiffs' expert John Finnerty, a managing director at AlixPartners, "at the very least, establishes a link between the news of Goldman's conflicts and the subsequent stock declines." That, he said, "is sufficient." The plaintiffs "look forward to heading toward trial," Spencer Burkholz, one of their lawyers, said in a statement. The case is In re Goldman Sachs Group Inc Securities Litigation, U.S. District Court, Southern District of New York, No. 10-03461. [GN] GUARDIAN PROTECTION: 3rd Cir. Remands UTPCPL Class Suit ------------------------------------------------------- Nicholas Malfitano, writing for PennRecord, reports that a class action lawsuit initiated against a Warrendale home security company and which invoked the Unfair Trade Practices and Consumer Protection Law, has been remanded to its court of origin by the U.S. Court of Appeals for the Third Circuit. On Aug. 6, Third Circuit judges Joseph A. Greenaway Jr., Patty Shwartz and U.S. District Court for the District of New Jersey Judge Jerome B. Simandle (appointed by designation) remanded the case filed by Jose Danganan of Washington, D.C. versus Guardian Protection Services, of Warrendale. In April 2013, Mr. Danganan signed a standard form contract with Guardian to provide home security at his Washington, D.C. residence. The contract set a monthly payment schedule, explained the initial term of the agreement would be three years and included a choice-of-law clause stating the agreement would be governed by the laws of Pennsylvania. The following year, Mr. Danganan sold his Washington, D.C. home, moved to San Francisco, and notified Guardian that he wished to cancel his service. Despite this notice of cancellation, Guardian continued to bill Mr. Danganan each month. Mr. Danganan made several of these monthly payments to Guardian under self-proclaimed "protest," as he was concerned that doing otherwise would adversely impact his credit rating. Subsequent to Mr. Danganan challenging the charges, Guardian offered him an opportunity to buy out the duration of his contract for $525, which he refused. Instead, Mr. Danganan brought the instant class action litigation on behalf of himself and more than 17,000 similarly situated consumers, alleging that Guardian's standard contract was "misleading, deceptive, and substantively unfair, in violation of both the Pennsylvania Unfair Trade Practices and Consumer Protection Law and Fair Credit Extension Uniformity Act." Guardian subsequently filed a motion to dismiss, which the District Court granted, concluding that non-residents of Pennsylvania cannot recover under the two statutes unless they plead allegations that have a "sufficient nexus" with the Commonwealth. That result led Mr. Danganan to file the instant appeal. Mr. Danganan alleges that Guardian violated the Pennsylvania UTPCPL, along with the related FCEUA, by continuing to charge monthly service fees to customers for whom the company was no longer providing home protection services. Judge Greenaway stated the lack of a precedential opinion on the subject from a Pennsylvania court left the Third Circuit to consider two questions: (1) Whether a non-Pennsylvania resident may bring suit under the UTPCPL against a business headquartered in and operating from Pennsylvania, based on transactions which occurred outside Pennsylvania -- and secondly, (2) If the UTPCPL does not allow a non-Pennsylvania resident to invoke its protections, whether the parties ca, through a choice-of-law provision, expand its protections to parties to the contract who are non-Pennsylvania resident consumers. "The Pennsylvania Supreme Court accepted the certification and, in a thorough opinion, held that the UTPCPL's 'prescription against deceptive practices employed by Pennsylvania-based businesses may encompass misconduct that has occurred in other jurisdictions.' In so concluding, the court reasoned that the statute's plain language 'evidences no geographic limitation or residency requirement relative to the Law's application.' As such, the court "rejected the sufficient nexus test as employed by the District Court and advanced by Guardian.' This holding rendered the second certified question moot," Judge Greenaway said. "Adhering to the principle first articulated in Erie Railroad Co. v. Tompkins, that federal courts are required to apply state substantive law to diversity actions, we must apply the conclusions of the Pennsylvania Supreme Court in this case. Because that court concluded, contrary to the District Court, that the UTPCPL may provide a cause of action to non-residents in circumstances like those alleged by Mr. Danganan, we will reverse the decision of the District Court dismissing his complaint and remand for further proceedings consistent with this opinion and the decision of the Supreme Court of Pennsylvania." The plaintiff is represented by James M. Pietz of Feinstein Doyle Payne & Kravec in Pittsburgh, Michael D. Donovan of Donovan Litigation Group in Berwyn and Christian X. Schreiber of Chavez & Gertler in Mill Valley, Calif. The defendant is represented by Laura E. Vendzules -- lvendzules@blankrome.com -- Michael A. Iannucci -- iannucci@blankrome.com -- Will Rosenzweig -- will.rosenzweig@kobrekim.com -- and Amy Joseph Coles -- acoles@blankrome.com -- of Blank Rome, in both Philadelphia and Pittsburgh. U.S. Court of Appeals for the Third Circuit case 16-3379 U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-01495 [GN] HAWAII: Fullum Files Suit vs. Department of Education ----------------------------------------------------- A class action lawsuit has been filed against Dr. Christina Kishimoto, et al. The case is titled as Marchet Denise Fullum, on behalf of minor child J.F.; Anna Grove, on behalf of minor child T.G.; Gerald M Niblock, on behalf of minor child K.N. individually and on behalf of all others similarly situated; and Sandee Niblock, on behalf of minor child K.N., individually and on behalf of all others similarly situated v. Dr. Christina Kishimoto, Superintendent of the State of Hawaii Department of Education; Elynne E. Chung, Principal of Mililani Middle School; Dr. Bernadette Tyrell, Principal of Castle High School; Beverly Stanich, Principal of Wailuku Elementary School; Robert Davis, Central Oahu Complex Area Superintendent; and Doe Defendants 1-20, Case No. 1:18-cv-00332-KJM (D. Haw., August 30, 2018). The nature of suit is stated as "Civil Rights: Education." Dr. Christina Kishimoto is the Superintendent of the State of Hawaii Department of Education.[BN] The Plaintiffs are represented by: Gina May Szeto-Wong, Esq. Jonathan M.F. Loo, Esq. Eric A. Seitz, Esq. LAW OFFICES OF ERIC SEITZ 820 Mililani Street, Suite 714 Honolulu, HI 96813 Telephone: (415) 532-6946 Facsimile: (808) 545-3608 E-mail: szetogina@gmail.com jloo33138@yahoo.com eseitzatty@yahoo.com HUDSON FURNITURE: Picon Files Suit Asserting ADA Violation ---------------------------------------------------------- A class action lawsuit has been filed against Hudson Furniture Inc. The case is titled as YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED v. Hudson Furniture Inc., Case No. 1:18-cv-07929 (S.D.N.Y., August 30, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Hudson Furniture Inc., located in New York City, designs, makes and sells furniture pieces.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY, 10014-5856 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com HUDSON THEATRE: Violates Disabilities Act, Castillo Suit Claims --------------------------------------------------------------- A class action lawsuit has been filed against Hudson Theatre, LLC. The case is captioned as Evelyn Castillo, on behalf of herself and all others similarly situated v. Hudson Theatre, LLC, doing business as: Hudson Theatre, Case No. 1:18-cv-07931 (S.D.N.Y., August 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Hudson Theatre comprises a theatre located at 44th Street in New York City. As of December 16, 2017, Hudson Theatre was acquired by The Ambassador Theatre Group Limited.[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 IMC CREDIT SERVICES: Sheets Suit Disputes Collection Letter ----------------------------------------------------------- Chadwick Sheets, individually and on behalf of all others similarly situated, Plaintiff, v. IMC Credit Services, LLC, a Delaware limited liability company, Defendant, Case No. 18-cv-01881, (S.D. Ind., June 19, 2018), seeks actual and statutory damages, costs and reasonable attorneys' fees under the Fair Debt Collection Practices Act. IMC attempted to collect defaulted consumer debts that she allegedly owed for medical bills. Defendants sent a collection letter that failed to that the debt was time-barred even threatening to credit report these time-barred debts, says the complaint. [BN] Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Carissa K. Rasch, Esq. Angie K. Robertson, Esq PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Tel: (708) 974-2900 Fax: (708) 974-2907 Email: davephilipps@aol.com mephilipps@aol.com carissa@philippslegal.com angie@philippslegal.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Tel: (317) 780-8300 Fax: (317) 217-1320 Email: steinkamplaw@yahoo.com INGLOT USA: Diaz Files Suit in N.Y. Over ADA Breach --------------------------------------------------- A class action lawsuit has been filed against Inglot USA, LLC. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. Inglot USA, LLC, Case No. 1:18-cv-07956 (S.D.N.Y., August 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Inglot USA, LLC, manufactures color cosmetics. The Company offers face and body products, lip products, nail treatments, and eye products.[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 INTERIM HEALTHCARE: Faces Diaz Suit Asserting ADA Violation ------------------------------------------------------------- Interim Healthcare Inc. is facing a a class action lawsuit asserting violations of the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated v. Interim Healthcare Inc., Case No. 1:18-cv-07959 (S.D.N.Y., August 30, 2018). Interim HealthCare Inc. provides healthcare services. The Company offers nursing, therapy, non-medical home care, hospice, and healthcare staffing 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 IRVING LANGER: Court Denies Partial Dismissal of Contrera's Suit ---------------------------------------------------------------- The United States District Court for Southern District of New York issued a Memorandum and Order denying Defendants' Partial Motion to Dismiss the Amended Complaint in the case captioned USVALDO CONTRERA, et al., Plaintiffs, v. IRVING LANGER, et al., Defendants. No. 16 CV 3851-LTS-GWG. (S.D.N.Y.). Plaintiffs bring this collective action against Defendants alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law NYLL) minimum wage and overtime provisions. Janitorial Exemption Under New York regulations for the building service industry, a janitor is exempted from overtime compensation. A janitor is defined as a person employed to render any physical service in connection with the maintenance, care or operation of a residential building. Where there is only one employee, such employee shall be deemed the janitor. The Defendants argue that the allegations in the AC and certain exhibits incorporated by reference therein definitively establish that both Contrera and Lopez are subject to the janitorial exemption because they (1) performed physical service in connection with the maintenance, care, or operation of a residential building, (2) were the only employees in their respective residential buildings, (3) lived in the residential building where they performed janitorial services, and (4) were designated as superintendents, a common term for janitors. The Defendants' arguments are unavailing because, as the Report correctly notes, the AC contains no allegations that indicate that Contrera and Lopez were the only persons employed to render janitorial services in their respective residential buildings, or that they were designated by Defendants as janitors for purposes of the exemption. Indeed, the AC suggests that other individuals, such as Plaintiff Herrera, were employed at both of the buildings where Contrera and Lopez worked. The AC also does not conclusively establish that Defendants designated Contrera or Lopez as employees who lives in the building as the janitor. Because the allegations in the AC construed in the light most favorable to Plaintiffs do not establish as a matter of law that Contrera and Lopez are janitors within the scope of the NYLL janitorial exemption, Defendants' objection with respect to this aspect of the Report is overruled and Defendants' motion to dismiss Contrera and Lopez's claims is denied without prejudice to further litigation at a later stage. FLSA Statute of Limitations A FLSA action arising out of a willful violation must be commenced within three years after the cause of action accrues. Here, Lopez allegedly left his employment with Defendants on April 30, 2014, but failed to file a written consent form until July 25, 2017. However, on March 7, 2017, Lopez filed a sworn declaration in connection with Plaintiffs' motion to conditionally approve this case as a FLSA collective action, in which he stated that he was a Plaintiff in this action and that he submitted his declaration in support of Plaintiffs' Motion to Circulate a Notice of Pendency under the FLSA. Judge Gorenstein concluded that the Lopez Declaration qualified as written consent within the meaning of section 256's written consent requirement. The Court agrees. The Defendants argue that any form other than a customary opt-in form would greatly alter the purpose of section 256(b) and convert a beneficial notice provision for the defendant, into an unnecessarily costly, time consuming and risky mandatory exercise for defendants. Defendants offer no authority for their formalistic interpretation of the written consent requirement, nor can the Court conclude that a review of the public docket imposes on Defendants additional burdens inconsistent with the purpose of the written consent requirement. Because the Lopez Declaration was sufficient to put Defendants on notice, and ensure that Lopez intended to participate in the case rather than serve as a procedural figurehead for an enterprising class action lawyer, the Court finds that the Declaration meets the written consent requirement. The Court overrules the Defendants' Objection in its entirety and adopts Judge Gorenstein's Report except to the extent specified in note one above) and its recommended conclusion that Defendants' partial motion to dismiss the Amended Complaint be denied. A full-text copy of the District Court's August 16, 2018 Memorandum and Order is available at https://tinyurl.com/y8medumu from Leagle.com. Usvaldo Contrera, Francisco Lopez, Pedro Batista, Fabian Herrera, Antonio Reyes, Ramon Medina, Anibal Ruiz, Carlos Zambrano, Jose Castillo & Doyle Gross, Plaintiffs, represented by Peter David Winebrake , The Winebrake Law Firm, LLC, Meredith Reade Miller , Miller Law, PLLC & Marc Andrew Rapaport , Rapaport Law Firm, PLLC. Carlos Dominguez, Danny Cruz-Guerrero, Hector Gracia, Ygnacio Mercado, Amanuel Avila, Maurice Merritt, Rafael Parra Hiclalgo, Wilfredo Perez, Hector R Rodriguez, James Mills, Sixto Rosario Cruz, Franklyn Brito, Jesus Robles, Bryan Garriques, Douil Jackson, Michael Smith, Generoso Saint Hilarie, Billy Rojas, Jose Arrieta, Teddie Emmanuel, Lambert Samuel, Leonardo R Mejia, Michael Simon, Curtis Brown, Keith Richards, Robert Joseph, Nelson V Castillos, Charles Martin, James Carter, Jose A Nieves, Aisy Alfredo Montero Marte, Maxwell Redhead, Vassel A Burke, Euclides Hilario, Anthony Watson, Orlando Velez, Frank Johnson, Sherman Martin, Jose A Filpo, Jose H. Rodriguez, Maximo Reyes, Ramon Abel Mora, Juan Tapia, Yowel Castillo, Luis N Garcia, Juan A Garcia, Cruz De La Rosa Genao, Jose Chavarria, Lucien Wellington, Sandy Taveras, Omar Nunez, Jose A. Saa-Tolozano, Erol McLean, Gustavo Del Rosario Gomez, Alfonso Trujillo, Francisco Gonzalez, Newton Marks, Bolivar Albarracin, Jose D Taveras, Francisco Teijido, Neson Jeffers, Calville Joseph, Manuel Soto & Manuel De La Rosa, Plaintiffs, represented by Marc Andrew Rapaport , Rapaport Law Firm, PLLC. Irving Langer, Leibel Lederman, Aryeh Z. Ginzberg, Meyer Brecher, E&M Bronx Associates LLC, also known as E&M Holdings, also known as E&M Associates, E&M Associates LLC, E&M Harlem Holdings LLC, E&M Harlem Equities LLC, E&M Lafayette Portfolio LLC, E&M Lafayette Owner LLC, Rainbow Estates LLC, Manhattanville Holdings LLC, Galil Realty LLC, Galil Management LLC, 105-109 West 113 LLC, 107 West 113 LLC, 1070 Ogden LLC, 109 West 113 LLC, 11 West 172 Street Owner LLC, 110 West 116th LLC, 113-115 West 113 LLC, 115 West 113 LLC, 117-129 West 116 LLC, 120-129 West 112 LLC, 124 West 112 Street LLC, 126 West 112 LLC, 131-133 West 112 LLC, 133 West 112 Street LLC, 133-135 West 116 LLC, 141 West 116 LLC, 141-143 West 113 LLC, 143 West 111 Street LLC, 145-153 Edgecombe Holdings LLC, 146 West 111 Street LLC, 151 West 228 St Owner LLC, 159 W 228 St Owner LLC, 161-171 Morningside LLC, 1631 Grand Ave Owner LLC, 164-172 West 141 Holdings LLC, 17-25 St Nicholas LLC, 1728-1730 Amsterdamn Avenue LLC, 1786 Topping Ave Owner LLC, 1829-1835 7 LLC, 2006 ACP Blvd Portfolio LLC, 2059 8 LLC, 2076-78 Creston Ave Owner LLC, 2238 Morris Ave Owner LLC, 226 W Tremont Ave Owner LLC, 2291 University Ave Owner LLC, 230 West 116 LLC, 2322 Grand Ave Owner LLC, 239 West 116 LLC, 241 West 113 LLC, 243 West 116 LLC, 247-253 West 116 LLC, 255 West 116 LLC, 2755-61 Sedgwick Ave Owner LLC, 2925 Grand Concourse Owner LLC, 2933 Grand Concourse Owner LLC, 2968 Perry Ave Owner LLC, 301 West 111-2051 8 LLC, 302 West 112 Street LLC, 303 West 111 LLC, 303-309 West 113 LLC, 305 West 111 LLC, 305-309 West 113 LLC, 306-310 West 112 LLC, 307 West 113 LLC, 310 West 112th Street LLC, 311 West 111 Street LLC, 337 West 138 Holdings LLC, 345 Manhattan Holdings LLC, 35 Morningside Holdings LLC, 350 West 115 LLC, 370-372 West 127 LLC, 373 West 126 LLC, 376 West 127 LLC, 41 W 184 St Owner LLC, 510 West 146 LLC, 521-523 W 156 St Owners LLC, 557-561 West 149 Holdings LLC, 6 Morningside LLC, 609-619 West 135 Street Owner LLC, 610-620 West 141 Holdings LLC, 617 West 143 Holdings LLC, 638 West 160 Holdings LLC, 655 West 160 Holdings LLC, 65-67 Lenox LLC, 67 Lenox LLC, 707 St Nicholas LLC, ACP Blvd Portfolio LLC, Audobon 550 W 171 Portfolio LLC, Avenue W Equities LLC, DDEH 319 E 115 LLC, E&M Associates I, LLC, Neighborhood Stabilization Associates I, L.P., Neighborhood Stabilization Associates II. L.P., NSA Associates I, NSA Associates II, Sarasota Gold LLC, Sixth Avenue I Associates, Sixth Avenue Rehab I Associates, Sunset Park Housing Associates, Sunset Park NSA I, Sunset Park N S A II, Sunset Park NSA 11, Sunset Park NSA 2, Sunset Park NSA II, 11-15 Broadway Owner LLC, 30-50 21 St Street Owner LLC, 271 E 197 St Owner LLC, 750-760 Pelham Pkwy Owner LLC, 124 E 177 ST Owner LLC, 3472 Knox Place Owner LLC, 2320 Aqueduct Ave Owner LLC, 1160 Cromwell Ave Owner LLC, 3940 Bronx Blvd Owner LLC, 1881 Grand Concourse Realty LLC, 3136 Perry Ave Owner LLC, 155 W 162 Street LLC, 1014 Gerard Ave Owner LLC, 1475 Sheridan Ave Owner LLC, 320 E 197 St Owner LLC, 131 W Kingsbridge Owner LLC, 2701 Webb Ave Owner LLC, 751 Gerard Ave Owner LLC, 2055 Anthony Ave Owner LLC, 975 Walton Ave Owner LLC, 1212 Grand Concourse Owner LLC, 1530 Sheridan Ave Owner LLC, 323 E Mosholu Pkwy Owner LLC, 161-165 E 179 St Owner LLC, 2215 Properties LLC, DDEH 103 E 102 LLC, DDEH 112 E 103 LLC, DDEH 102 E 103 LLC, DDEH 122 E 103ST LLC, DDEH 124 E117 LLC, DDEH 126 E 103ST LLC, 124 E. 117 LLC, DDEH 137 E. 110 LLC, DDEH 154 E. 106 LLC, DDEH 1567 Lexington LLC, DDEH 238 E 111 LLC, DDEH 215 E 117 LLC, DDEH 2156 Second LLC, DDEH 216 E 118 LLC, DDEH 2171 Third LLC, DDEH 291 Pleasant LLC, DDEH 231 E 117 LLC, DDEH 233 E 111 Street LLC, DDEH 234 E 116ST LLC, DDEH 235 E 111ST LLC, DDEH 234 E116 LLC, DDEH 2371 Second LLC, DDEH 244 E 117 LLC, DDEH 311 E. 109 LLC, DDEH 312 E 106 LLC, DDEH 411 E 114 LLC, DDEH 411 E118LLC, DDEH 417E 114ST LLC, DDEH 421 East 114th ST LLC, 131-133 West 112 Street LLC, 3030 Valentine Ave Owner LLC, 138-140 West 112 LLC, 3600 Broadway Owner LLC, Dunbar Owner LLC, E&M Harlem Portfolio Owner LLC, SG2-E&M Harlem Portfolio Owner LLC, 3621 Broadway Owner LLC, 414-102 Convent Owner LLC, 153-157 Lenox Holdings LLC & Manhattanville Mezz LLC, Defendants, represented by Larry Rafael Martinez -- lmartinez@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Christopher Paul Hampton -- champton@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Gerald Charles Waters -- gwaters@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP, Jonathan D. Farrell -- jfarrell@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP & Loretta Mae Gastwirth -- lgastwirth@meltzerlippe.com -- Meltzer, Lippe, Goldstein & Breitstone, LLP. KING COUNTY, WA: Court Flips Dismissal of Tenants' Suit ------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, reversed the judgment of the District Court granting Defendant's Motion to Dismiss the case captioned EVA MOORE; BROOKE SHAW; CHERRELLE DAVIS; NINA DAVIS, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. JOHN URQUHART, in his official capacity as King County Sheriff, Defendant-Appellee. No. 16-36086. (9th Cir.). The district court dismissed the action with prejudice on grounds that the Sheriff rightly does not attempt to defend on appeal. This is a class action challenging the constitutionality of a Washington statute that allows tenants to be evicted from their homes without a court hearing. The Plaintiffs seek declaratory and injunctive relief against the Sheriff of King County, whose office enforces the challenged statute by executing the eviction orders. Because plaintiffs' action challenges the constitutionality of a state statute, the district court invited the State of Washington to intervene to defend the statute. Before the State entered an appearance, though, the district court granted the Sheriff's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The court held that Section 375 does not violate the Due Process Clause because, contrary to plaintiffs' contention, the statute actually does require a hearing in all cases before a writ of restitution may be issued. Under that reading of the statute, the court concluded, plaintiffs had not stated a claim that Section 375 was unconstitutional and any further attempt to amend the complaint would be futile. The court accordingly dismissed the action with prejudice and denied plaintiffs' motion for class certification as moot. The Sheriff raises two principal arguments in defense of the district court's judgment. First, he contends that plaintiffs' action must be brought, if at all, under 42 U.S.C. Section 1983 and that the amended complaint fails to state a viable claim under that statute. Second, the Sheriff argues that plaintiffs' action is barred in any event by the doctrine of judicial immunity. The Sheriff's first argument is plainly without merit. Plaintiffs would be required to proceed under 42 U.S.C. Section 1983 if they sought to recover money damages. But they are seeking only declaratory and injunctive relief against the Sheriff in his official capacity, a declaration that Section 375 is facially unconstitutional and an injunction barring him from enforcing writs of restitution issued under the statute. To obtain that relief, plaintiffs do not need a statutory cause of action. They can rely on the judge-made cause of action recognized in Ex parte Young, 209 U.S. 123(1908), which permits courts of equity to enjoin enforcement of state statutes that violate the Constitution or conflict with other federal laws. The Sheriff's second argument is that, even if plaintiffs have a viable cause of action under Ex parte Young, he is nonetheless entitled to judicial immunity for his conduct. Judicial immunity is a common law doctrine developed to protect judicial independence. It bars suits against judges, and other officials who exercise discretionary judgment similar to that of judges, when the plaintiff's suit is predicated on actions taken in the judge's judicial capacity. The Sheriff is correct that a similar immunity has also been extended to protect non-judicial officers, like sheriffs, who are sued merely for carrying out a non-discretionary duty to execute lawfully issued court orders. In such cases, if the judicial officer who issued the order is entitled to immunity, so too is the executive officer who did nothing more than execute the order. The executive officer's immunity, sometimes called quasi-judicial immunity, is derivative of the judge's own immunity. Common law judicial immunity is of no help to the Sheriff in this action, for it only bars suits seeking damages. It does not preclude a court from granting declaratory or injunctive relief. Because the King County Superior Court judges who issue writs of restitution would not be entitled to common law judicial immunity in a suit seeking declaratory and injunctive relief, neither is the Sheriff. A full-text copy of the Ninth Circuit's August 16, 2018 Opinion is available at https://tinyurl.com/y8wqj6zu from Leagle.com. Toby J. Marshall -- tmarshall@terrellmarshall.com -- (argued) and Elizabeth A. Adams -- eadams@terrellmarshall.com -- Terrell Marshall Law Group PLLC, Seattle, Washington; Rory O'Sullivan , King County Bar Association Housing Justice Project, for Plaintiffs-Appellants. David J. Hackett (argued) Senior Deputy Prosecuting Attorney, King County Prosecuting Attorney, Seattle, Washington, for Defendant-Appellee. Jeffrey T. Even , Deputy Solicitor General; Robert W. Ferguson , Attorney General; Office of the Attorney General, Olympia, Washington; for Amicus Curiae State of Washington. KNORR-BREMSE AG: Lonergan Files Antitrust Class Suit in Maryland ---------------------------------------------------------------- Patricia Lonergan, individually and on behalf of all others similarly situated, Plaintiff, Plaintiffs, v. Knorr-Bremse AG, Knorr Brake Company LLC, New York Air Brake LLC, Westinghouse Air Brake Technologies Corporation, WABTEC Passenger Transit, Faiveley Transport, S.A. and Faiveley Transport North America, Inc. Defendants, Case No. 18-cv-01828 (D. Md., June 19, 2018), seeks to recover damages, including treble damages and other appropriate relief. The Defendants are the largest rail equipment suppliers in the world. Plaintiffs are workers who claim antitrust violations with regards to competition in the labor market for personnel. The Defendants allegedly conspired not to recruit, solicit or hire each other's personnel without prior approval. [BN] Plaintiff is represented by: Paul Mark Sandler, Esq. Eric R. Harlan, Esq. SHAPIRO SHER GUINOT & SANDLER 250 West Pratt Street, Suite 2000 Baltimore, MD 21201 Tel: (410) 385-0202 Fax: (410) 539-7611 Email: pms@shapirosher.com erh@shapirosher.com - and - Joseph R. Saveri, Esq. Jiamin Chen, Esq. Steve N. Williams, Esq. Jiamin Chen, Esq. V. Chai Oliver, Esq. JOSEPH SAVERI LAW FIRM, INC. 601 California Street, Suite 1000 San Francisco, CA 94108 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 Emails: jsaveri@saverilawfirm.com jchen@saverilawfirm.com nherrera@saverilawfirm.com vprentice@saverilawfirm.com KROGER CO: Violates Disabilities Act, Diaz Class Suit Alleges ------------------------------------------------------------- A lawsuit was brought against The Kroger Co. alleging violations of the Americans with Disabilities Act. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. The Kroger Co., Case No. 1:18-cv-07953 (S.D.N.Y., August 30, 2018). The Kroger Co., together with its subsidiaries, operates as a retailer in the United States. The Company also manufactures and processes food products for sale in its supermarkets. The Company operates supermarkets, multi-department stores, jewelry stores, and convenience stores. The Company's combination food and drug stores offer natural food and organic sections, pharmacies, general merchandise, pet centers, fresh seafood, and organic produce; multi-department stores provide general merchandise items, such as apparel, home fashion and furnishings, outdoor living, electronics, automotive products, toys, and fine jewelry; and price impact warehouse stores offer grocery, and health and beauty care items.[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 LIBERTY TRANSPORTATION: Dismissal of Truck Drivers' Suit Suggested ------------------------------------------------------------------ Magistrate Hugh B. Scott of the United States District Court for the Western District of New York issued a Report and Recommendation granting Defendant's Motion to Dismiss the case captioned William Indelicato, Plaintiff, v. Liberty Transportation, Inc., Defendant. No. 18-CV-253V. (W.D.N.Y.). The Defendant now has filed a motion to dismiss the complaint for lack of personal jurisdiction, under Rule 12(b)(2) of the Federal Rules of Civil Procedure (FRCP). Plaintiff William Indelicato responded to an online advertisement from defendant Liberty Transportation, Inc. seeking New York truck drivers to help with manifests for various shipping loads. The Plaintiff eventually leased a truck from defendant and entered an independent contractor agreement to accept manifests at his discretion. Over time, plaintiff grew unhappy with how much defendant was deducting from his paychecks for expenses set forth in his independent contractor agreement. Plaintiff brought suit here alleging violations of the Fair Labor Standards Act (FLSA) and Article 6 of the New York Labor Law (Labor Law). Rule 12(b)(2) motions to dismiss generally When responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. In deciding a pre-trial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. Personal jurisdiction generally Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons. This is because a federal district court's authority to assert personal jurisdiction in most cases is linked to service of process on a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. State law will determine the outermost boundaries here as well; the parties have not pointed out any provision of the FLSA that would address those limits. With respect to state law, for a court to exercise general jurisdiction over a defendant, 1) state law must authorize general jurisdiction; and 2) jurisdiction must comport with constitutional due process principles. In order for a court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State. When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. Personal jurisdiction as applied here With the general principles of personal jurisdiction in mind, the Court now turns to the specific circumstances present here. Defendant is not incorporated in New York, and it does not have a principal place of business here. Defendant has no assets in New York. That plaintiff might have signed his agreements in New York is not a significant factor and would have been offset by the completion of arrangements in Pennsylvania to pick up the leased truck. Plaintiff had discretion to accept or to reject manifests as he wished. When he did accept manifests, plaintiff's duties did not include soliciting further business or making other logistical arrangements for defendant. The record is not clear as to exactly how defendant would go about seeking new business opportunities, but anything that it did in that regard did not involve plaintiff or New York very much if at all. The nature of plaintiff's manifests, alone or in conjunction with other factors that plaintiff has cited, does not change the circumstances that the Court. The defendant in its reply papers attached a complete list of all 167 manifests that the plaintiff accepted during the time when he worked for plaintiff. Defendant assessed the list of manifests to conclude that the plaintiff incurred less than 10% of his miles in New York. To give the plaintiff the benefit of the doubt for Rule 12 purposes, the Court has examined the list of manifests a little differently. The Court agrees with the defendant that 49 manifests started or ended in New York. For an additional 34 manifests, however, the route began on one side of New York states such as Pennsylvania, Nebraska, or Oklahoma and ended in a New England state such as Connecticut or Massachusetts. Taking judicial notice of the geographical necessity of passing through New York to reach New England states from Pennsylvania or points farther west, the Court added these 34 manifests to the other 49 for a total of 83 manifests out of 167 that required at least some contact with New York. Additionally, if the Court generously gave plaintiff the benefit of the doubt and counted all of the mileage for those 83 manifests as mileage that had something to do with New York at some point then the total would amount to 33,659.1 miles out of 85,658, a rate of about 39 percent. The Court's calculations come closer to plaintiff's informal estimates. Yet even with these more generous numbers, plaintiff has not shown that his New York business amounted to more than a small percentage of the millions of miles that defendant claims as its annual business. Consequently, all of the above factors push the Court to conclude that plaintiff has not made a prima facie showing of either general or specific jurisdiction. To hold otherwise would mean that a freight forwarder is subject to suit on any cause of action in any jurisdiction to which it makes substantial shipments if, even without maintaining an office, it solicits such business there. Transfer of the case to a more appropriate district might have been an option as an alternative to outright dismissal. The parties have not mentioned transfer in their papers, however, and did not raise the issue at oral argument. The Court accordingly will not address the issue further. A full-text copy of the District Court's August 16, 2018 Report and Recommendation is available at https://tinyurl.com/yayognhg from Leagle.com. William Indelicato, Plaintiff, represented by Harold L. Lichten -- hlichten@llrlaw.com -- Lichten & Liss-Riordan, P.C.,Samuel A. Alba , Friedman & Ranzenhofer, P.C. & Peter D. Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake & Santillo, LLC. Liberty Transportation, Inc., Defendant, represented by Charles Andrewscavage -- candrewscavage@scopelitis.com -- Scopelitis Garvin Light Hanson & Feary, P.C., Rodney O. Personius -- rop@personiusmelber.com -- Personius Melber LLP & James T. Spolyar -- JSPOLYAR@SCOPELITIS.COM -- Scopelitis, Garvin, Light, Hanson & Feary, P.C., pro hac vice. LM FUNDING: Court OKs Revised Solaris Class Action Settlement ------------------------------------------------------------- LM Funding America, Inc. (NASDAQ:LMFA) ("LM Funding" or the "Company"), a technology-based specialty finance company offering unique funding solutions to community associations, on Aug. 14 announced its financial results for the second quarter ended June 30, 2018. "During the second quarter, we continued to see positive results from the steps we have taken to maximize our rental revenue and improve our cost structure," said Bruce Rodgers, LM Funding's Chief Executive Officer. "We reduced operating expenses by approximately 55% and entered into a revised settlement for the Solaris class action litigation resulting in a reversal of over $400,000 in accrued expenses which led to positive net income during the quarter and first six months as compared to a net loss for the same periods the prior year. Going forward, we will continue to leverage our proprietary technology to unlock the significant value of our receivables portfolio as we focus our marketing efforts to grow our portfolio and explore new avenues to diversify our revenue streams." Second Quarter 2018 Financial and Operational Highlights: -- Operating revenues totaled $877,986 for the second quarter of 2018 as compared to $977,600 for the same period the year prior; -- Rental revenue, which accounted for 24.8% of total operating revenue during the quarter, increased 28% to $217,904 as compared to $170,283 for the same period the year prior; -- Operating expenses decreased by 54.5% to $733,170 as compared to $1.6 million in the prior year period driven by a significant reduction in staff costs and payroll, professional fees, and SG&A expenses; -- Generated net income of $455,240 as compared to a net loss of $794,511 for the second quarter 2017; -- During the second quarter 2018, decreased the $505,000Solaris class action accrual incurred in the comparable 2017 period, to $100,000 due to a revised settlement with the $405,000 change reflected as income; -- As of June 30, 2018, the Company had $1.2 million in cash; and -- Shareholder equity increased to $1.5 million or $0.24 per share as of June 30, 2018, compared to shareholder equity of $896,983 or $0.14 per share as of December 31, 2017. On August 14, 2018, the Solaris court approved a revised settlement of the Solaris class action litigation. The settlement approves the Plaintiff's Fourth Amended Complaint seeking no damages and providing only a claim for declarative and injunctive relief. Plaintiffs with existing active units being serviced by LM Funding may opt to change from the standard distribution agreement to LMF's 50/50 distribution agreement on a prospective basis. In the settlement Agreement LM Funding will pay Plaintiff's counsel $99,000 plus an administrative fee. Second Quarter and Six-Month Financial Results: For the quarter ended June 30, 2018, total operating revenues were $877,986, compared to $977,600 in the second quarter of 2017. This includes an approximate $48,000 increase in rental revenue to $217,904, compared to $170,283 for the quarter ended June 30, 2017, due to continued improvement in the utilization of the Company's rental properties. For the six months ended June 30, 2018, total revenues were $1.8 million as compared to $2.0 million for the same period the year prior. Operating expenses for the second quarter of 2018 decreased 54.5% to $733,170, compared to $1.6 million in the prior year period. This is primarily attributable to approximately $197,000 in reduced staffing costs, $471,000 in lower professional fees (including a $200,00 insurance reimbursement for legal fees in 2018) and a $128,000 decline in selling, general and administrative costs as compared to the comparable period in 2017. For the six months ended June 30, 2018, total operating expenses decreased to $1.7 million as compared to $3.1 million for the same period the year prior. Net income for the quarter ended June 30, 2018 was $455,240, compared to a net loss of $794,511 for the second quarter of 2017. For the six months ended June 30, 2018, net income was approximately $446,000 as compared to a net loss of $1.2 million. At June 30, 2018, the Company had cash and cash equivalents of $1.2 million, compared with $590,394 at December 31, 2017. Total stockholder's equity increased to $1.5 million for the period ended June 30, 2018 as compared to $896,983 for the period ended December 31, 2017. About LM Funding America LM Funding America, Inc., together with its subsidiaries, is a technology-based specialty finance company that provides funding to nonprofit community associations (Associations) primarily located in the state of Florida, as well as in the states of Washington, Colorado and Illinois. The company offers funding to Associations by purchasing a certain portion of the associations' rights to delinquent accounts that are selected by the Associations arising from unpaid Association assessments. It is also involved in the business of purchasing delinquent accounts on various terms tailored to suit each Association's financial needs, including under its New Neighbor Guaranty(TM) program. [GN] LONDON GOLD: UBS Dropped as Defendant in Gold Fixing Suit --------------------------------------------------------- In the cases, IN RE: COMMODITY EXCHANGE, INC., GOLD FUTURES AND OPTIONS TRADING LITIGATION. This Document Relates to All Actions, Case Nos. 14-MD-2548 (VEC), 14-MC-2548 (VEC) (S.D. N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York granted UBS AG and its affiliates' motion to dismiss the Third Amended Complaint. The Plaintiffs in these consolidated cases allege a conspiracy to fix the price of physical gold and gold-denominated financial instruments from 2004 to 2012. Until November 2014, the price of physical gold was set twice daily through a private auction involving some of the largest bullion banks in London. The Plaintiffs allege that the afternoon "Gold Fixing" -- also known as the "PM Fixing" -- was a cover for a price-fixing conspiracy among the entity charged with operating the Gold Fixing, Defendant London Gold Market Fixing Ltd., and the participant banks: The Bank of Nova Scotia, Barclays Bank plc, Deutsche Bank AG, HSBC Bank plc, and Société Générale SA ("Fixing Banks"). The Plaintiffs have also named as a Defendant UBS AG and its affiliates. Although UBS was not a member of the Gold Fixing at any point during the alleged class period, the Plaintiffs contend UBS conspired with the Fixing Banks to suppress the price of gold as determined by the PM Fixing. The Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. market, shares in gold exchange-traded funds ("ETFs"), or options on gold ETFs during the Class Period. Seeking to recover alleged losses suffered as a result of the Defendants' alleged manipulation and suppression of the price of gold through the gold "fixing" process, the Plaintiffs bring putative class action claims for (1) unlawful restraint of trade in violation of Section 1 of the Sherman Act; (2) market manipulation in violation of the Commodity Exchange Act ("CEA"); (3) employment of a manipulative or deceptive device and false reporting in violation of the CEA; (4) principal-agent liability under the CEA; (5) aiding and abetting manipulation in violation of the CEA; and (6) unjust enrichment. Before the Court is UBS' motion to dismiss the TAC. In brief, UBS contends that its participation in a scheme to suppress the PM Fixing is implausible. According to UBS, the Fixing Banks, with their ready-made forum for collusion and substantial market power, had no reason to involve UBS in their alleged conspiracy. It also moves to dismiss for lack of personal jurisdiction over a Swiss entity, UBS AG. Judge Caproni has evaluated the Plaintiffs' allegations as to UBS as a whole and considered their combined character and effect, and has done so in the light most favorable to the Plaintiffs. Nevertheless, the TAC fails to allege a plausible link between UBS and the price fixing scheme alleged against the Fixing Banks. The Plaintiffs' Sherman Act claims against UBS are dismissed. The parties agree that the Plaintiffs' CEA claims depend on the same theory of a conspiracy as the Plaintiffs' Sherman Act claims. Accordingly, the Judge's conclusion that the Plaintiffs' Sherman Act claims against UBS are implausible applies equally to their CEA claims. Hence, the Plaintiffs' CEA claims are dismissed as to UBS. For the reasons stated in In re Commodity Exch., Inc., Gold Futures and Options Trading Litig., 213 F.Supp.3d 631 (S.D.N.Y. 2016) ("Gold I"), the Judge also dismissed the Plaintiffs' unjust enrichment claim. In Gold I, the Court holds that the plaintiffs' allegations that UBS quoted prices that were lower than market averages were simply inadequate to create a plausible inference of conspiracy. Given that the Plaintiffs have already amended three times, including based on discovery from Deutsche Bank, and that the Plaintiffs have not requested leave to amend, the Judge denies leave to amend. The Plaintiffs are represented by competent, experienced counsel. If they had the facts necessary to plug the obvious holes that exist in the TAC, the Judge is confident those facts would have been included in the pleadings filed to date. For these reasons, Judge Caproni granted UBS' motion to dismiss and dismissed with prejudice the Plaintiffs' claims against UBS. The Clerk of the Court is directed to close the open motion at docket entry 297 and terminate defendants UBS Securities, LLC and UBS AG. The remaining parties are directed to appear for a status conference with the Court at 11:00 a.m. on Aug. 24, 2018. By Aug. 17, 2018, the parties must submit a joint letter of not more than 5 pages setting forth a proposed schedule for discovery in the action. The parties are forewarned that the Court will not accept dueling letters; the parties are required to work together to produce a joint letter. A full-text copy of the Court's July 25, 2018 Order is available at https://is.gd/xQ5SO3 from Leagle.com. London Gold Fixing Plaintiffs, Plaintiff, represented by Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Quinn Emanuel. London Gold Fixing Defendants, Defendant, represented by James Vincent Masella, III -- jmasella@pbwt.com -- Patterson, Belknap, Webb & Tyler LLP & R. James Madigan, III -- jmadigan@pbwt.com -- Patterson, Belknap, Webb & Tyler LLP. LONDON SILVER: Non-Fixing Banks Dismissed From Antitrust Suit ------------------------------------------------------------- In the cases, N RE: LONDON SILVER FIXING, LTD., ANTITRUST LITIGATION. This Document Relates to All Actions, Case Nos. 14-MD-2573 (VEC), 14-MC-2573 (VEC) (S.D. N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York granted the Non-Fixing Banks' motion to dismiss the Third Amended Complaint. The case began as a benchmark-fixing case. Until 2013, the price of silver bullion was set in part through a daily private auction among a small group of silver dealers ("Silver Fixing"). Based on a sophisticated econometric analysis of thousands of price quotes from the silver markets, Plaintiffs alleged that this daily private auction was a cover for a conspiracy among the participating banks, Deutsche Bank, HSBC, and Bank of Nova Scotia ("Fixing Banks"), to suppress the price for physical silver and silver-denominated financial products. In September 2016, the Court held that the Plaintiffs had stated claims against HSBC and Bank of Nova Scotia. The Plaintiffs settled with Deutsche Bank for $38 million dollars and what the Plaintiffs hoped would be a treasure trove of preserved electronic chat messages among precious metals traders employed by Deutsche Bank and traders at Bank of America, Barclays, Standard Chartered, BNP Paribas, and UBS ("Non-Fixing Banks"). The chat messages, many of which are quoted in the TAC, appear to document sharing of proprietary information and episodic attempts to coordinate trading, apparently in the hopes of profiting from resulting movement in the prices of silver and silver-denominated financial instruments. After acquiring these chat messages, the Plaintiffs amended their complaint to allege that the Non-Fixing Banks conspired with the Fixing Banks and among themselves to manipulate the Silver Fixing and the silver markets more generally. The TAC alleges a much broader conspiracy to manipulate the markets for physical silver and silver-denominated assets. According to the Plaintiffs, the Defendants' comprehensive strategy has three elements. The first element is the Silver Fixing scheme described above and addressed at length in Silver I. Relying on chat messages between traders at Deutsche Bank and the other Defendants ("Deutsche Bank Cooperation Materials"), the TAC also alleges a scheme to manipulate the "bid-ask" spread in the market for physical silver and a scheme to manipulate the silver markets through coordinated trading and information sharing. The TAC also added as defendants a handful of banks that were not involved in the Silver Fixing: Barclays Bank PLC, BNP Paribas Fortis S.A./N.V., Standard Chartered Bank, and Bank of America Corp. and its subsidiary unit Merrill Lynch, Pierce, Fenner & Smith Inc. ("BAML") ("New Defendants"). The Non-Fixing Banks have moved to dismiss the TAC. They argue that the TAC's allegations of a comprehensive conspiracy among the Fixing Banks and Non-Fixing Banks are not plausible. The Non-Fixing Banks also argue that the Plaintiffs lack antitrust standing as to the Non-Fixing Banks. With respect to the Plaintiffs' claims pursuant to the CEA, the Non-Fixing Banks argue that the Plaintiffs' claims are untimely because Plaintiffs were on notice of possible manipulation of the silver markets more than two years before they sought leave to amend in November 2017. They also contend that the Plaintiffs' CEA claims are impermissibly extraterritorial because there is no alleged impact on a domestic market from the Non-Fixing Banks' manipulation. Failing these defenses, certain of the Non-Fixing Banks contend the Court lacks personal jurisdiction over them. UBS, Standard Chartered, BNP Paribas, and Barclays argue that Plaintiffs do not allege their involvement in any in-forum, suit-related misconduct. Judge Caproni finds that the TAC provides no support for the Plaintiffs' argument that they have suffered a direct injury from the Non-Fixing Banks' manipulation of the silver markets. Although this is an independently adequate basis to find that they are not efficient enforcers, the other efficient enforcer factors also weigh against the Plaintiffs' claims. The Plaintiffs are not efficient enforcers. Their claims are based on an injury that is remote from the Non-Fixing Banks' alleged coordinated trading and market-manipulation and speculative at best. And, because they do not allege that they dealt with the Non-Fixing Banks and seek to recover on behalf of a class of all participants in the silver markets, there is a significant possibility of disproportionate liability. Accordingly, the Plaintiffs' Sherman Act claims against the Non-Fixing Banks are dismissed. The TAC further fails to allege that episodic manipulation by the Non-Fixing Banks caused the Plaintiffs any actual damages. Because the Plaintiffs' vicarious liability, aiding-and-abetting, and Rule 180.1 claims rise and fall with their primary liability theory, those claims fail as well. The Plaintiffs' CEA claims against the Non-Fixing Banks are dismissed. The Plaintiffs' unjust enrichment claim is also dismissed. The Plaintiffs have not requested leave to amend, and they have not attached a proposed, fourth amended complaint for the Court's review. Given that the Plaintiffs have already amended three times, including based on discovery from Deutsche Bank, and that the Plaintiffs have not requested leave to amend, the Judge denies leave to amend. The Plaintiffs are represented by competent, experienced counsel. If they had the facts necessary to plug the holes that exist in the TAC, the Judge is confident those facts would have been included in the pleadings filed to date. For these reasons, Judge Caproni granted the Non-Fixing Banks' motion to dismiss. She dismissed with prejudice the Plaintiffs' claims against the Non-Fixing Banks. The Clerk of the Court is directed to close the open motion at docket entry 302 and terminate defendants Barclays, Standard Chartered, BNP Paribas, BAML, and UBS from the case. The remaining parties are directed to appear for a status conference with the Court at 11:00 a.m. on Aug. 24, 2018. By Aug. 17, 2018, the parties must submit a joint letter of not more than 5 pages setting forth a proposed schedule for discovery in the action. The parties are forewarned that the Court will not accept dueling letters; the parties are required to work together to produce a joint letter. A full-text copy of the Court's July 25, 2018 Opinion and Order is available at https://is.gd/RG9zRG from Leagle.com. London Silver Fixing Plaintiffs, Plaintiff, represented by Michael C. Dell'Angelo -- mdellangelo@bm.net -- Berger & Montague, P.C., Thomas Michael Skelton -- tskelton@lowey.com -- Lowey Dannenberg, P.C. & Vincent Briganti -- vbriganti@lowey.com -- Lowey Dannenberg P.C. London Silver Fixing Defendants, Defendant, represented by Michael Lacovara -- michael.lacovara@lw.com -- Freshfields Bruckhaus Deringer LLP. LYRIC THEATRE: Faces Castillo ADA Suit in S.D.N.Y. -------------------------------------------------- A class action lawsuit has been filed against Lyric Theatre of New York, Inc. The case is captioned as Evelyn Castillo, on behalf of herself and all others similarly situated v. Lyric Theatre of New York, Inc., doing business as: Lyric Theatre, Case No. 1:18-cv-07943 (S.D.N.Y., August 30, 2018). The lawsuit arises from alleged violations of the Americans with Disabilities Act. Lyric Theatre of New York, Inc., operates the Lyric Theatre located at 214 West 43rd Street, in New York City.[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 MAIDS INTERNATIONAL: Faces Diaz ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against The Maids International, Inc. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated v. The Maids International, Inc., Case No. 1:18-cv-07958 (S.D.N.Y., August 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Maids International, Inc., provides cleaning services. The Company offers residential, recurring, occasional, spring, carpet, window cleaning 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 MANHATTAN MUSIC: Violates Disabilities Act, Reyes Suit Alleges -------------------------------------------------------------- A class action lawsuit has been filed against The Manhattan Music Group LLC. The case is styled as Jose Reyes, on behalf of himself and all others similarly situated v. The Manhattan Music Group LLC, doing business as: Terminal 5, Case No. 1:18-cv-07941 (S.D.N.Y., August 30, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. Manhattan Music Group LLC, doing business as Terminal 5, provides sound recordings featuring music, musical performances, performances for live stage shows and other audio-visual recordings.[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 MERCURY EAST: Castillo Suit Asserts ADA Violation ------------------------------------------------- The Mercury East, LLC is facing a class action lawsuit in New York. The case is titled as Evelyn Castillo, on behalf of herself and all others similarly situated v. The Mercury East, LLC, doing business as: The Mercury Lounge, Case No. 1:18-cv-07942 (S.D.N.Y., August 30, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. The Mercury East, LLC, is a domestic limited liability company in New York. The Company does business as The Mercury Lounge.[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 MICHAEL KORS: Wage Class Action Heading to Individual Arbitration ----------------------------------------------------------------- Daniel Siegal, writing for Law360, reports that a California federal judge on Aug. 13 tentatively ruled that Michael Kors USA Inc. and a staffing company can send to individual arbitration a woman's putative class action alleging the companies stiff workers on overtime and withhold rest and meal breaks. At a hearing in downtown Los Angeles, U.S. District Judge Michael Fitzgerald issued a written tentative ruling indicating he would grant Michael Kors and Decton Inc.'s motion to compel plaintiff Victoria Lucas to arbitrate her claims against them. [GN] MIDCAP FINANCIAL: Garcia Class of Drivers Conditionally Certified ----------------------------------------------------------------- In the case, JOSE GARCIA, et al., Plaintiffs, v. VASILIA a/k/a "VAUNA" PETERSON, et al., Defendants, Civil Action No. H-17-1601 (S.D. Tex.), Judge Gray H. Miller of the U.S. District Court for the Southern District of Texas, Houston Division, granted the Plaintiffs' motion to conditionally certify a collective action and authorize notice. The case is brought by individuals who drove moving trucks for a company originally known as Graebel Cos., Inc. According to the Plaintiffs, Graebel Cos., Inc. became Graebel Van Lines, LLC, in 2015 and was eventually dissolved in March 2017. There were 33 local terminal offices in the United States. The drivers each worked under an independent contractor agreement, but they contend that they were all governed by the same policies and procedures, and the main company controlled the method and manner in which the drivers performed their duties. The Plaintiffs allege that they were not paid a wage or overtime even though they regularly worked in excess of forty hours a week. They were, instead, compensated, initially, via a complex contractor's rate schedule. However, in the fall of 2016, the company started providing small partial advances to the Plaintiffs instead of paying their wages under the schedule. They believe the decision to change the pay was made by the MidCap Funding X Trust, the assignee of the initial loan for the earlier ownership transition. The Plaintiffs were all drivers based at one of Graebel's 33 terminal branch locations, which operated as subsidiaries. Many of the named plaintiffs reside in Texas, but there are named Plaintiffs from nine other states. They filed suit against Vasilia, also known as Vauna Peterson, Robert Peterson, Ormando Gomez, All My Sons of Denton County, Inc., Graebel Van Lines Holdings, LLC, doing business as Graebel Moving Services, Graebel Van Lines, LLC, Graebel/Houston Movers, LLC, Graebel/Illinois Movers, LLC, Graebel/Los Angeles Movers, LLC, Graebel Moving and Warehouse Corp., Graebel Moving and Warehouse, LLC, Graebel/North Carolina Movers, LLC, Graebel/St. Louis Movers, LLC, MidCap, MidCap Financial Trust, formerly known as MidCap Financial, LLC, and John Does 1-10. The claims are as follows: (1) violation of the Fair Labor Standards Act ("FLSA") for failure to pay wages against all named defendants; (2) violation of the FLSA for failure to keep records against all named defendants; (3) breach of contract against all named defendants; (4) quantum meruit against all named Defendants; (5) fraud against all named Defendants; (6) conspiracy and aider and abetting liability for fraud against the Petersons, Gomez, and MidCap; (7) successor liability of asset purchasers against John Does 1-10; and (8) veil piercing and alter ego against MidCap, Gomez, the Petersons, All My Sons, and Graebel Van Lines, LLC; and (9) agency liability against MidCap. The Plaintiffs filed these claims on behalf of themselves and others similarly situated, and they now seek authority to mail and email a notice of rights and a consent form to all potential collective action members. The proposed class is defined as all the Graebel Drivers performing driving services from July 1, 2016 to present, for the entities identified as GMI Subsidiaries in the Graebel Acquisition Agreement, their successors, and including but not limited to, the subsidiaries making up the 33 Graebel branch terminal locations. The Plaintiffs also seek an order compelling the Defendants to provide them with the names, birth dates, driver's license numbers, telephone numbers, email addresses, all known addresses, and dates of employment of all individuals who performed driving services for entities identified as "GMI Subsidiaries" in the Graebel Acquisition Agreement and their successors. Judge Miller has ruled on MidCap's motions, and it finds that it is not premature to now turn to the motion for conditional ertification. He agrees that the Plaintiffs have met their burden of showing there was a nationwide pay issue that impacted all members of the putative class. And he finds that there is ample evidence that similarly situated individuals exist who want to opt in to the lawsuit. Judge Miller therefore granted the Plaintiffs' motion for conditional certification. He conditionally certified the class of all Graebel Drivers performing driving services from July 1, 2016 to present, for the entities identified as GMI Subsidiaries in the Graebel Acquisition Agreement, their successors, and including but not limited to, the subsidiaries making up the 33 Graebel branch terminal locations. The parties will meet and confer regarding the proposed notice and timeline and submit documentation to the Court within 20 days of the date of the Order. Additionally, the Graebel Defendants will provide the Plaintiffs with a list of individuals meeting the class definition within 20 days of the date of the Order. A full-text copy of the Court's July 25, 2018 Memorandum Opinion and Order is available at https://is.gd/eVWNCH from Leagle.com. Jose Garcia, Plaintiff, represented by Murray J. Fogler -- mfogler@fbfog.com -- Fogler, Brar, Ford, O'Neil & Gray LLP, Robert Henry Ford -- rford@fbfog.com -- Fogler Brar Ford O'Neil Gray LLP & Benjamin Witten Allen -- ben.allen@feldman.law -- Feldman & Feldman, PC. Mark Wilburn, Jose Luis Vazquez, Jose Caballero, Americo Fuentez, Franciso Martinez-Villarreal, Jose Mejia, Kenneth Powell, Rosa Ramirez, Alex Santos, Dulce Santos, James Stephens, Aaron Dunning, Albert Foks, Gabriel Strasser, Ivan Diaz, Ramon Diaz, Melissa Earley, Randall Morton Hooper, General Lee McKinney, Michael Kee, Ed Krapf, Jordan O'Donnell, Marselo Rodriguez, Chet Painter, William Shelton, Michael Willin, Larry Burt, Jeffrey Casady, Wlodzimierz Debski & Albert Dennis, Plaintiffs, represented by Robert Henry Ford, Fogler Brar Ford O'Neil Gray LLP & Benjamin Witten Allen, Feldman & Feldman, PC. Vasilia Peterson, also known as Vauna & Robert Peterson, Defendants, represented by Alice Kwak -- Alice.Kwak@lewisbrisbois.com -- Lewis Brisbois et al, Jeffrey S. Ranen -- Jeffrey.Ranen@lewisbrisbois.com -- Lewis Brisbois et al, Katherine C. Den Bleyker -- Katherine.DenBleyker@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP & William Scott Helfand , Lewis Brisbois Bisgaard & Smith, LLP. Ormando Gomez, Graebel Van Lines Holdings, LLC, doing business as Graebel Moving Services, Graebel Van Lines, LLC, Graebel/Houston Movers, LLC, Graebel Moving and Warehouse Corp. & Graebel/North Carolina Movers, LLC, Defendants, represented by Alice Kwak, Lewis Brisbois et al, Jeffrey S. Ranen, Lewis Brisbois et al, Katherine C. Den Bleyker, Lewis Brisbois Bisgaard & Smith LLP, Katherine C. Den Bleyker, Lewis Brisbois Bisgaard & Smith LLP, pro hac vice & William Scott Helfand, Lewis Brisbois Bisgaard & Smith, LLP. All My Sons of Denton County, Inc., Defendant, pro se. MidCap Financial, LLC & Mid Cap Funding X Trust, Defendants, represented by Jamil N. Alibhai -- jalibhai@munckwilson.com -- Munck Wilson Mandala LLP, John Maston O'Neal -- john.oneal@quarles.com -- Quarles & Brady LLP, pro hac vice & Sarah J. Lopano -- slopano@munckwilson.com -- Munck Wilson Mandala, LLP, pro hac vice. John Does 1-10, Defendant, represented by Jeffrey S. Ranen, Lewis Brisbois et al. Graebel/St. Louis Movers, LLC & Graebel/Los Angeles, LLC, Defendants, represented by Jeffrey S. Ranen, Lewis Brisbois et al, Alice Kwak, Lewis Brisbois et al & Katherine C. Den Bleyker, Lewis Brisbois Bisgaard & Smith LLP. Graebel/Illinois Movers, LLC, Defendant, represented by Alice Kwak, Lewis Brisbois et al & Katherine C. Den Bleyker, Lewis Brisbois Bisgaard & Smith LLP. MINNESOTA: Minnesota Supreme Ct. Flips Cruz-Guzman Suit Dismissal ----------------------------------------------------------------- In the case, Alejandro Cruz-Guzman, as guardian and next friend of his minor children, et al., Appellants/Cross-Respondents, v. State of Minnesota, et al., Respondents/Cross-Appellants, and Higher Ground Academy, et al., Defendants-Intervenors, Case No. A16-1265 (Minn.), Judge Natalie Hudson of the Supreme Court of Minnesota reversed the decision of the court of appeals reversing the district court's order refusing to dismiss the Appellants' case for lack of justiciability. In November 2015, Appellants Cruz-Guzman, et al., commenced an action against Respondents State of Minnesota, the Minnesota Senate, the Minnesota House of Representatives, the Minnesota Department of Education, and Dr. Brenda Cassellius, the Commissioner of Education. The Appellants are primarily parents of children enrolled in Minneapolis and Saint Paul public schools. They seek to represent a class of children enrolled, or expected to be enrolled during the pendency of the action, in the Minneapolis Public Schools, Special School District No. 1, and the Saint Paul Public Schools, Independent School District 625. The complaint contains copious data demonstrating a high degree of segregation based on race and socioeconomic status in Minneapolis and Saint Paul public schools. The Appellants highlight several practices by the Minneapolis and Saint Paul public schools, other school districts, charter schools, and the State as contributing to school segregation and inadequate educational outcomes. The Appellants assert that the State has violated its constitutional duty under the Education Clause of the Minnesota Constitution. They contend that in addition to failing to fulfill its constitutional duty under the Education Clause, the State has violated the Equal Protection and Due Process Clauses of the Minnesota Constitution by enabling school segregation and depriving students of their fundamental right to an adequate education. The complaint requests declaratory and injunctive relief. Specifically, the Appellants have asked the district court to permanently enjoin the State from continuing to engage in the violations of law, to order the State to remedy the violations of law, and to order the State "to provide the [students] forthwith with an adequate and desegregated education. They did not bring any direct claims against either the Minneapolis Public Schools or the Saint Paul Public Schools, and do not directly seek any remedies from any school district or charter school. The State moved to dismiss the complaint on multiple grounds, including lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join all interested persons. The district court dismissed certain Defendants from the action and dismissed the claims brought under the Minnesota Human Rights Act, but otherwise denied the motion to dismiss. The State filed an interlocutory appeal, raising the following issues: (1) whether the district court erred by refusing to dismiss the complaint for lack of justiciability; (2) whether the district court erred by refusing to dismiss the claims against the Minnesota Senate and House of Representatives based on legislative immunity; and (3) whether the district court erred by refusing to dismiss the complaint for failure to join individual school districts and charter schools as parties. The court of appeals reversed, holding that the Appellants' claims present a nonjusticiable political question. Accordingly, it reversed the district court's order refusing to dismiss the Appellants' case for lack of justiciability. Because the court's ruling on justiciability was dispositive, the court did not address the State's other arguments concerning legislative immunity or the failure to join necessary parties. Judge Hudson granted the Appellants' petition for further review, which raised the justiciability issue. She also granted the State's request for conditional cross-review, which asked the Court to review the legislative immunity and joinder issues. The Judge holds that the Appellants' constitutional claims under the Education Clause do not present a political question and are therefore justiciable. She also concludes that the Appellants' claims alleging violations of the Equal Protection and Due Process Clauses of the Minnesota Constitution are justiciable. Although the Legislature plays a crucial role in education, it is ultimately the judiciary's responsibility to determine what the constitution requires and whether the Legislature has fulfilled its constitutional duty. The Judge declines to interpret one provision in the constitution -- the Speech or Debate Clause -- to immunize the Legislature from meeting its obligation under more specific constitutional provisions -- the Education, Equal Protection, and Due Process Clauses. Moreover, none of the cases that the House and Senate cite in support of their claims of legislative immunity involves a legislature's failure to comply with an express constitutional mandate. She therefore holds that the protections of the Speech or Debate Clause do not extend to claims that the Legislature has violated its duty under the Education Clause or has violated the Equal Protection or Due Process Clauses. Addressing the State's argument that the district court lacks jurisdiction over the Appellants' claims because the Appellants failed to join all necessary parties, the Judge concludes that the district court did not err when it denied the State's motion to dismiss the complaint for lack of jurisdiction under the Declaratory Judgments Act. Even if the school districts and charter schools might eventually be affected by actions potentially taken by the State in response to the litigation, those possible effects are not enough to require that the school districts and charter schools be joined as necessary parties. Finally, the Judge holds that school districts and charter schools are not indispensable parties when relief is sought solely from the State. The district court therefore did not err when the court denied the State's motion to dismiss the complaint under Rule 19. Judge Hudson concludes that separation-of-powers principles do not prevent the judiciary from ruling on whether the Legislature has violated its duty under the Education Clause or violated the Equal Protection or Due Process Clauses of the Minnesota Constitution. She also holds that the district court did not err when it denied the State's motion seeking to dismiss the complaint based on legislative immunity and the failure to join necessary parties. She therefore reversed the decision of the court of appeals. A full-text copy of the Court's July 25, 2018 Order is available at https://is.gd/sYNz2V from Leagle.com. Daniel R. Shulman -- daniel.shulman@gpmlaw.com -- Joy Reopelle Anderson -- joy.anderson@gpmlaw.com -- Richard C. Landon -- richard.landon@gpmlaw.com -- Kathryn E. Hauff, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, Minnesota; John G. Shulman, Jeanne-Marie Almonor, Minneapolis, Minnesota; Mel C. Orchard, III, The Spence Law Firm, LLC, Jackson, Wyoming; and James Cook, Law Office of John Burris, Oakland, California, for appellants/cross-respondents. Lori Swanson, Attorney General, Karen D. Olson, Deputy Attorney General, Kathryn M. Woodruff, Kevin A. Finnerty, Assistant Attorneys General, Saint Paul, Minnesota, for respondents/cross-appellants. Jack Y. Perry -- jperry@briggs.com -- Michael W. Kaphing -- mkaphing@briggs.com -- Briggs and Morgan, P.A., Minneapolis, Minnesota; and John Cairns, John Cairns Law, P.A., Minneapolis, Minnesota, for amici curiae Higher Ground Academy, et al. Teresa J. Nelson, John B. Gordon, American Civil Liberties Union of Minnesota, Saint Paul, Minnesota; and William Z. Pentelovich -- bill.pentelovitch@maslon.com -- Jesse D. Mondry -- jesse.mondry@maslon.com -- Maslon LLP, Minneapolis, Minnesota, for amicus curiae American Civil Liberties Union of Minnesota. Will Stancil, Minneapolis, Minnesota, for amici curiae Concerned Law Professors. Eli M. Temkin -- etemkin@jonesday.com -- Jones Day, Minneapolis, Minnesota, Todd R. Geremia -- trgeremia@jonesday.com -- James M. Gross, Jones Day, New York, New York; David G. Sciarra -- dsciarra@edlawcenter.org -- Education Law Center, Newark, New Jersey; and Derek W. Black, Columbia, South Carolina, for amici curiae Education Law Center and the Constitutional and Education Law Scholars. Lewis A. Remele, Jr. -- lremele@bassford.com -- Kate L. Homolka, Bassford Remele, Minneapolis, Minnesota, for amici curiae Tiffini Flynn Forslund, et al. Myron Orfield -- orfield@umn.edu -- Minneapolis, Minnesota, for amicus curiae Myron Orfield. MONTEREY FINANCIAL: Can Compel Arbitration in Garrett's FDCPA Suit ------------------------------------------------------------------ In the case, CARLA GARRETT, individually, and on behalf of all others similarly situated Plaintiff, v. MONTEREY FINANCIAL SERVICES, LLC Defendant, Civil Action No. JKB-18-325 (D. Md.), Judge James K. Bredar of the U.S. District Court for the District of Maryland granted the Defendant's Motion to Dismiss and to Compel Arbitration. In the putative class action, Garrett sues Monterey for violations of the Fair Debt Collection Practices Act. Monterey moves the Court to compel arbitration and dismiss all causes of action. Garrett entered into an electronic Installment Loan Agreement with General Financial Inc. on June 4, 2013, through the website www.justmilitaryloans.com. The Agreement contains a Waiver of Jury Trial and Arbitration provision. Subsequently, the Agreement was assigned to Monterey for collecting the debt. On Feb. 26, 2018, after Garrett filed her Complaint, Monterey produced the underlying contract and requested Garrett voluntarily dismiss the instant litigation in light of the arbitration provision from which Garrett did not opt-out. Garrett did not respond to the request. Garrett does not dispute the existence or scope of the arbitration provision but contends that it is unconscionable. Judge Bredar finds that Garrett has failed to carry her burden of demonstrating that the arbitration provision is unconscionable. The terms of the arbitration clause are not so one-sided as to be oppressive. Garrett also failed to demonstrate that the arbitration provision violates the MLA. Garrett's assertions related to the interest rate cap imposed by the MLA do not relate to the arbitration provision but to the Agreement as a whole. Further, as Garrett states, the Agreement containing the arbitration provision was signed in 2013, at which time the MLA did not cover installment loans. Finally, the Agreement does not require the borrower to submit to arbitration because the arbitration provision contains an opt-out clause. Accordingly, the Judge holds that the arbitration provision is enforceable. Garrett does not maintain that her claims fall outside the scope of the agreement to arbitrate, nor does she contend that the Court, rather than the arbitrator, should determine arbitrability of the claims. The FAA requires a district court to stay judicial proceedings involving issues covered by arbitration agreements. Dismissal is also a proper remedy under the circumstances. Therefore, as requested by Monterey, the Judge will compel arbitration of all matters raised in the Complaint and dismiss all causes of action. For the foregoing reasons, Judge Bredar granted the Defendant's Motion to Dismiss and to Compel Arbitration. The Judgment will be entered by separate Order. A full-text copy of the Court's July 25, 2018 Memorandum is available at https://is.gd/FXjMY4 from Leagle.com. Carla Garrett, individually and on behalf of all others similarly situated, Plaintiff, represented by Aryeh E. Stein -- astein@meridianlawfirm.com -- Meridian Law LLC. Monterey Financial Services, Defendant, represented by Brendan H. Little -- blittle@lippes.com -- Lippes Mathias Wexler Friedman LLP, pro hac vice & James M. Brault -- jmb@braultgraham.com -- Brault Graham LLC. NATIONAL GAS: Court Dismisses Johansen's TCPA Suit -------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, dismissed for failure to show cause the case captioned KEN JOHANSEN, on behalf of himself and others similarly situated, Plaintiff, v. NATIONAL GAS & ELECTRIC LLC, Defendant. Case No. 2:17-cv-587. (S.D. Ohio). This matter is before the court on plaintiff's response to the court's order to show cause why this action should not be dismissed as meritless. Plaintiff Ken Johansen brings this putative class action under the Telephone Consumer Protection Act (TCPA). Johansen alleges that his residential telephone number is on the national Do Not Call Registry and that defendant National Gas & Electric LLC (NG&E) violated the Act by calling him multiple times. The Show Cause Order The court's show cause order was precipitated by the filing that plaintiff made in response to NG&E's motion to compel arbitration, which the court denied. Plaintiff submitted an affidavit stating that after NG&E first contacted him by telephone on June 13, 2017, he called NG&E back to express interest in its services and ultimately completed the enrollment process to seemingly become one of its electric customers. The Plaintiff, in seeking to avoid the arbitration provision of the NG&E contract, argued that there never was a contract because he knowingly provided incorrect information to NG&E. Plaintiff admitted in his affidavit that he supplied a false address and false account number. Thus, even though the NG&E representative on the telephone would have believed that plaintiff was enrolling, plaintiff knew that no matter what happened, he would not receive NG&E's services. Plaintiff's Response The Plaintiff instead argues that NG&E committed a separate TCPA violation during the same timeframe based on a different series of calls. Plaintiff contends that the June 13 to 15 calls discussed in the show cause order were made on NG&E's behalf by a telemarketing vendor named St. Vincent. He claims that another third-party vendor named Energy Telemarketers (ETM) called him on June 14, 2017 to solicit him to enroll with NG&E. He received additional calls from ETM and NG&E on June 15 and 16, and he argues that these calls violated the TCPA. Standard of Review The court reviews plaintiff's response to the show cause order as it would review a matter under Rule 56(f) of the Federal Rules of Civil Procedure (summary judgment independent of a motion). Under Rule 56, summary judgment is proper if the evidentiary materials in the record show that there is no genuine dispute as to any material fact and that one party is entitled to judgment as a matter of law. The ETM-Related Calls Inter alia, at about 8:30 p.m. on June 14, 2017, plaintiff received a call from ETM offering to help lower his electric bill. During this call, the ETM representative verified plaintiff's address and existing account number and offered to have an enrollment specialist call him. Plaintiff agreed to be called back by an enrollment specialist. Within ten minutes, NG&E twice attempted to call plaintiff, but those calls went to voicemail and no messages were left. ETM called again on June 15 around 11:45 a.m., following the same script as the call placed the day before. Again, plaintiff verified his address and account number and he responded, Okay, sounds good, to the proposition that an enrollment specialist for the electric supplier would be calling him. NG&E attempted to call plaintiff twice within the next hour, but those calls went to voicemail and no messages were left. The Theory of a Different Telemarketing Vendor The TCPA provides a private cause of action to a person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection. The Plaintiff argues that the ETM-related calls are not covered by the EBR which was created with NG&E as a result of the June 13, 2017 call from a different telemarketing vendor. Citing 47 C.F.R. Section 64.1200(f)(5)(ii), plaintiff contends that an EBR with a company does not extend to a call from the company's affiliates, vendors or contractors unless the call is of the type the recipient would reasonably expect to receive pursuant to the EBR. According to plaintiff, the ETM-related calls were not reasonably connected to the EBR because they were not follow-up calls or offers of related services, but were new cold calls attempting to enroll him in NG&E's services. In response, NG&E argues that the ETM-related calls are covered by the EBR because what matters under the statute is the entity accountable for having the calls placed. NG&E contends that both St. Vincent and ETM were calling on NG&E's behalf. Under traditional agency principles, NG&E was the entity making the calls and it had a right, by virtue of the EBR created on June 13, to make telephone solicitations to plaintiff through its telemarketing vendors. The court finds that NG&E has correctly stated the law on this issue. The text of the TCPA focuses on the entity who calls or on whose behalf the call is made. If an individual has an EBR with an entity, as plaintiff had with NG&E as of June 13, 2017), then a call from the entity is excluded from the meaning of a telephone solicitation under the Act regardless of whether the call is in the nature of a solicitation. Here, an EBR between plaintiff and NG&E was created on June 13, 2017. The court finds that the calls placed on NG&E's behalf by agent ETM on June 14 and 15 are excluded from the definition of a telephone solicitation. Thus, plaintiff's claim under the TCPA fails as a matter of law. Prior Express Permission NG&E argues that even if the ETM-related calls are not exempt under the EBR created on June 13, 2017, plaintiff expressly gave his permission to ETM to be called. The court agrees. A call is excluded from the definition of a telephone solicitation if it is placed to any person with that person's prior express invitation or permission. When an ETM representative proposed during the June 14 call that an enrollment specialist would call plaintiff, he responded, Okay, great. Sounds good. In the calls which followed over the next several days, plaintiff never stated that he did not wish to receive any more calls. He kept agreeing to be called by an enrollment specialist and even attempted to call NG&E to complete the enrollment process when one of the calls got cut off. The court thus finds as a matter of law that the ETM-related calls are excluded from the definition of a telephone solicitation because plaintiff gave prior express permission to be called. The court grants summary judgment to defendant NG&E and dismisses the complaint in its entirety. A full-text copy of the District Court's August 16, 2018 Opinion and Order is available at https://tinyurl.com/y8dq8vwl from Leagle.com. Ken Johansen, Plaintiff, represented by Brian K. Murphy -- murphy@mmmb.com -- Murray Murphy Moul Basil LLP, Anthony Paronich -- anthony@broderick-law.com -- Broderick & Paronich, P.C., pro hac vice, Edward A. Broderick , Broderick Law, P.C., pro hac vice & Jonathan P. Misny -- misny@mmmb.com -- Murray Murphy Moul + Basil. National Gas & Electric, LLC, Defendant, represented by John L. Landolfi -- jllandolfi@vorys.com -- Vorys Sater Seymour & Pease, Christopher Charles Wager -- ccwager@vorys.com -- Vorys, Sater, Seymour & Pease LLP, Ezra Dodd Church , Morgan, Lewis & Bockius LLP, pro hac vice & Michelle Pector -- michelle.pector@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice. NAVIENT SOLUTIONS: Can't Compel Arbitration in Homaidan's Suit -------------------------------------------------------------- In the case, In re: HILAL KHALIL HOMAIDAN, aka HELAL K HOMAIDAN, Chapter 7, Debtor. HILAL KHALIL HOMAIDAN, Plaintiff, v. SLM CORPORATION, SALLIE MAE, INC., NAVIENT SOLUTIONS, LLC, and NAVIENT CREDIT FINANCE CORPORATION, Defendants, Case No. 08-48275-ess, Adv. Pro. No.: 17-01085-ess (E.D. N.Y.), Judge Elizabeth S. Stong of the U.S. Bankruptcy Court for the Eastern District of New York denied the motion to compel arbitration by Defendants Navient Solutions, LLC, Navient Credit Finance Corp., and Sallie Mae, Inc. On Dec. 4, 2008, Homaidan, also known as Helal K. Homaidan, filed a petition for relief under Chapter 7 of the Bankruptcy Code, Case No. 08-48275. On Jan. 15, 2009, the Chapter 7 Trustee filed a "no-asset" report stating that the estate has no non-exempt property to distribute. On April 9, 2009, the Court entered an order discharging Mr. Homaidan, and on that same day, his bankruptcy case was closed. On April 14, 2017, Mr. Homaidan filed a motion to reopen his bankruptcy case to obtain a determination of the dischargeability of certain of his student loans, and on May 26, 2017, the Court entered an order reopening the case. On June 23, 2017, Mr. Homaidan commenced the adversary proceeding as a putative class action, on behalf of himself and others similarly situated, by filing a complaint against SLM Corp., Sallie Mae, Navient Solutions, and Navient Credit seeking a determination that certain debts that he incurred as a student are not nondischargeable student loan debts under Bankruptcy Code Section 523(a)(8)(B), and a finding of civil contempt for willful violations of the bankruptcy discharge injunction. On Oct. 30, 2017, the Defendants filed the motion to compel arbitration, or in the alternative, to dismiss. And on Dec. 1, 2017, the Court approved a stipulation of dismissal as to Defendant SLM Corp. Mr. Homaidan alleges that for the last 10n years, the Defendants have engaged in a massive effort to defraud student debtors and to subvert the orderly working of the bankruptcy courts. He claims that the Defendants originated and serviced dischargeable consumer loans while disguising them as nondischargeable student loans. Mr. Homaidan advances these allegations on behalf of an alleged class of similarly situated individuals who have declared bankruptcy since 2005 across the United States, with loans originated and/or serviced by the Defendants. And he alleges that these loans do not meet the definition of a non-dischargeable qualified education loan as set forth in Internal Revenue Code Section 221(d) and Bankruptcy Code Section 523(a)(8)(B). Id. Mr. Homaidan attended Emerson College in Boston, Massachusetts during the four academic years from 2003 to 2007. He withdrew from Emerson College in the Fall of 2006, and returned in the Spring of 2007 to complete his degree. During the 2006-07 academic year, Mr. Homaidan received $4,800 in scholarship funds from Emerson College, and $22,100 in school-certified loans from the Defendants. He alleges that the Defendants lent him an additional $12,567 in direct to consumer loans that were made outside the financial aid office and were not made for qualified education expenses. The Plaintiff requests a declaratory judgment pursuant to Judiciary Code Section 2201 and Bankruptcy Rule 7001(9) that his debts were discharged by operation of law on April 9, 2009, the date of his bankruptcy discharge, because they were not student loans excluded from discharge under Bankruptcy Code Section 523(a)(8). He also alleges that since the Defendants were notified of the Discharge Order pursuant to Bankruptcy Rule 4004(g), and still sought to collect on his debts by use of dunning letters, phone calls, negative reports made to credit bureaus, failure to update credit reports, and commencing or continuing legal action to recover these debts in violation of Bankruptcy Code Section 524], the Court should cite the Defendants for civil contempt for their willful violations of the Discharge Order, and order them to pay damages in an amount to be determined at trial pursuant to Bankruptcy Code Sections 524 and 105, and also to pay his attorneys' fees and costs. On Oct. 30, 2017, the Defendants moved to compel arbitration of Mr. Homaidan's claims, or in the alternative, to dismiss the case, and filed a memorandum of law in support. They argue that Mr. Homaidan agreed to arbitrate all claims alleged in his Complaint, and that the agreement to arbitrate is "valid, irrevocable, and enforceable." They argue that the Federal Arbitration Act ("FAA") provides that where the parties have entered into a valid arbitration agreement, a party may move to compel the refusing party to arbitrate its claims pursuant to the relevant agreement. Judge Stong finds that Mr. Homaidan's claims for a determination that certain of his debts were discharged by operation of law because they are not student loans excluded from discharge under Bankruptcy Code Section 523(a)(8), and that the Defendants violated the Discharge Order, are core matters. She holds that Mr. Homaidan's allegations and claims for relief seek the enforcement of a court order -- the discharge injunction -- that is central to the statutory scheme and purpose of the Bankruptcy Code. Courts -- not arbitration proceedings -- are the appropriate forums to address alleged violations of court orders. And the resolution of Mr. Homaidan's claims directly implicates goals and objectives that are central to the purposes of the Bankruptcy Code, including the goal of providing a debtor with a fresh start. For these reasons, the Judge finds that arbitration of Mr. Homaidan's claims would inherently conflict with the Bankruptcy Code's objectives, and that therefore, this consideration too weighs against compelling arbitration of these claims. For these reasons, she finds that arbitration of Mr. Homaidan's would present a severe and inherent conflict with the Bankruptcy Code, and additionally, that it would necessarily jeopardize the objectives of the Bankruptcy Code. As a result, she declines to compel arbitration of Mr. Homaidan's claims. Based on the entire record, and for the reasons set forth, Judge Stong concluded that the Defendants have not established that the Court should compel arbitration of the claims in the adversary proceeding, and the Defendants' Motion to Compel Arbitration is denied. An order in accordance with the Memorandum Decision will be entered simultaneously with the Memorandum Decision. A full-text copy of the Court's July 25, 2018 Memorandum Decision is available at https://is.gd/ygGbLd from Leagle.com. Hilal Khalil Homaidan, Plaintiff, represented by George F. Carpinello -- gcarpinello@bsfllp.com -- Boies Schiller Flexner, LLP, Adam Shaw -- ashaw@bsfllp.com -- Boies Schiller Flexner LLP, Austin C. Smith -- smitha83@miamioh.edu -- Smith Law Group, Lynn E. Swanson -- swanson@jonesswanson.com -- Jones, Swanson, Huddell & Garrison, LLC & Robert C. Tietjen -- rtietjen@bsfllp.com -- Boies Schiller Flexner LLP. Sallie Mae, Inc., Defendant, represented by Thomas M. Farrell -- tfarrell@mcguirewoods.com -- McGuire Woods LLP. Navient Solutions, LLC & Navient Credit Finance Corporation, Defendants, represented by Thomas M. Farrell, McGuire Woods LLP & Shawn Randall Fox -- sfox@mcguirewoods.com -- McGuire Woods LLP. NEW HORIZON'S: Kurdinat Files FLSA Suit Over Unpaid Wages --------------------------------------------------------- Nicole Kurdinat, individually and as the representative of a class of similarly situated persons, Plaintiff, v. New Horizon's Baking Company, Inc., Defendants, Case No. 18-cv-00926 (N.D. Ohio, April 23, 2018), seeks compensatory damages in the amount of their unpaid wages, as well as liquidated damages in an equal amount, costs and attorney's fees incurred in prosecuting this action and such further relief under the Fair Labor Standards Act as well as the Ohio overtime compensation statute. New Horizon manufactures and distributes various baked goods. The complaint says the Defendant excluded the nondiscretionary bonus payments in determining their regular rates for purposes of overtime compensation. [BN] Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com NIKE INC: Faces Class Action Over Toxic Workplace Behavior ---------------------------------------------------------- Matthew Kish, writing for Portland Business Journal, reports that a federal lawsuit filed against Nike Inc. on Aug. 9 gives the fullest picture yet of the toxic workplace behavior that is threatening to become the company's biggest scandal since it repeatedly batted away sweatshop criticisms in the 1990s. The lawsuit, which seeks class action status, alleges "women's careers (at Nike) are blunted because they are marginalized and passed over for promotions." "Nike judges women more harshly than men, which means lower salaries, smaller bonuses, and fewer stock options. Women's complaints to human resources about discrimination and harassment, including sexual assault, are ignored or mishandled," the lawsuit claims. The lawsuit was filed on behalf of four former Nike employees, but says the class could reach at least 500 members. Nike declined comment on the lawsuit, but issued a general statement on Aug. 9. "Nike opposes discrimination of any type and has a long-standing commitment to diversity and inclusion," the company said. "We are committed to competitive pay and benefits for our employees. The vast majority of Nike employees live by our values of dignity and respect for others." Complaints about Nike's culture were first reported in March by the Wall Street Journal after a group of female executives complained to CEO Mark Parker. The New York Times and The Oregonian subsequently reported on complaints about Nike's culture, which some described as a "boys' club." The Aug. 9 lawsuit recaps those reports and offers additional allegations, including claims that a male Nike executive sent inappropriate sexual messages and nude photographs of himself to one of the plaintiffs, Sara Johnston, after a boozy Nike party in December 2015. Ms. Johnston complained about the behavior to a supervisor, but was told "Nike has a culture that revolves around alcohol," and she should "let the incidents go," according to the lawsuit. The lawsuit claims no action was taken against the male executive. Ms. Johnston claims she subsequently learned the same male executive "pushed a female co-worker against a wall and reached his hand up her skirt" at the same December 2015 party. When she met with human resources in May 2016 to discuss the male executive's behavior, Johnston claims she was told that Nike was not taking any disciplinary action against the executive, who was subsequently promoted to a position in which she had to work more closely with him. Also in the lawsuit, plaintiff Kelly Cahill, who also filed an earlier sexual discrimination complaint again Nike with the state, claims a former Nike executive referred to women as "dykes" on several occasions and regularly berated female employees. Ms. Cahill claims she complained to human resources four times, but her complaints did not result in "meaningful" action. Nike has taken several public steps to address its problem. In March, Parker sent a memo to Nike employees in which he said he'd "become aware of reports of behavior . . . that do not reflect our core values of inclusivity, respect and empowerment." At least 11 executives have since left the company, including CEO-in-waiting Trevor Edwards. Nike also has overhauled its compensation system, named its first chief diversity and inclusion officer and appointed two new board members, including one with expertise in diversity efforts. [GN] ONE ON ONE: Violates Disabilities Act, Diaz Class Suit Claims ------------------------------------------------------------- Edwin Diaz filed a class action lawsuit against One On One Physical Therapy, LLC pursuant to the Americans with Disabilities Act. The case is captioned Edwin Diaz, on behalf of himself and all others similarly situated v. One On One Physical Therapy, LLC, Case No. 1:18-cv-07954 (S.D.N.Y., August 30, 2018). One On One Physical Therapy is a group of physical therapist owned practices, with locations throughout Brooklyn, Staten Island, Manhattan and Queens. The Company treats all orthopedic injuries, as well as various neurological and degenerative conditions.[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 OPEN DOOR: Court Orders Supplemental Brief in Conde's FLSA Suit --------------------------------------------------------------- In the case, CARLOS CONDE, et al., Plaintiffs, v. OPEN DOOR MARKETING, LLC, et al., Defendants, Case No. 15-cv-04080-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California has ordered the Plaintiffs to provide a supplemental brief regarding the following issues: (i) the number of opt-in Plaintiffs; (ii) calculation of workweeks; (iii) released claims; (iv) reasonableness of the settlement; non-disclosure requirements; and (v) binding effect on California. It is unclear how many opt-in Plaintiffs are affected by the Settlement Agreement. The motion for settlement approval states there are 177 individuals, whereas the Settlement Agreement and the Plaintiffs' notice to the opt-in Plaintiffs state there are 160 individuals. The Plaintiffs will clarify the number of opt-in Plaintiffs. The settlement will be allocated based on the number of weeks worked. Specifically, the Plaintiffs' counsel will calculate the number of weeks each opt-in Plaintiff claims to have worked for the Defendants in California and Nevada. Each week worked in Nevada will count as one "share," and each week in California will constitute two "shares." The total number of shares will be calculated. The total shares that each individual opt-in Plaintiff will then be divided by the total number of shares to determine the percent of the net settlement amount to which the individual is entitled to. The Plaintiffs must explain why the California weeks are being doubled. The Settlement Agreement defines "Released Claims" as the wage and hour claims, known or unknown, that could be asserted under the Fair Labor Standards Act ("FLSA") or any state law, as defined in Section III A. Section III.A, however, states that the released claims will be any claims that were pled or could have been pled in the Plaintiffs' Fourth Amended Collective and Class Action Complaint based on the factual allegations in that complaint, including but not limited to any claims under state or federal statutes or common law regarding the payment of wages. This suggests a broader release than the wage and hour claims only. The Plaintiffs will confirm that the Settlement Agreement is limited to wage and hour claims as to the opt-in Plaintiffs who are not named Plaintiffs. The Plaintiffs estimate the maximum liability in the case to be $511,379.05 (excluding civil penalties under California's Private Attorneys General Act ("PAGA")). The $125,000 settlement amount is 24.4% of the full verdict value. In order for the Magistrate Judge to determine whether this amount is "a fair and reasonable resolution of a bona fide dispute, she requires further information. First, the Plaintiff must explain how maximum liability was calculated, sufficient for the Court to determine that this number is a reasonable estimate of Defendants' potential liability. Second, the Magistrate Judge requires further information on the litigation risks faced by the Plaintiffs with respect to the outside salespeople exemption under both the FLSA and the California Labor Code. The Plaintiffs must explain how the outside salespeople exemptions would apply to the facts of the instant case. The Settlement Agreement provides that the parties and their counsel will not discuss the litigation or settlement with any person, except in limited circumstances. In light of Gonzalez-Rodriguez and the authority cited therein, and the fact that the settlement agreement has already been filed on the public record, the Plaintiffs must explain whether the non-disclosure provision should be forced. Finally, the Plaintiffs state that the release will be equally binding on the State of California, and will preclude it from seeking to recover civil penalties from 2020 with respect to any violation of the California Labor Code arising out of such allegations. The Magistrata Judge orders the Plaintiffs to clarify whether this is limited to the PAGA claims only. Additionally, the Plaintiffs will state whether they received any response from the California Labor Workforce Development Agency regarding the PAGA settlement. The supplemental brief should be filed no later than Aug. 6, 2018 at 12:00 p.m. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/VjWIvX from Leagle.com. Carlos Conde, individually and on behalf of all others similarly situated, Shikwana Jennings, individually and on behalf of all others similarly situated & Lisa Drake, individually and on behalf of all others similarly situated, Plaintiffs, represented by Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. Open Door Marketing, LLC, Larry Dale Clark & Jerrimy Farris, Defendants, represented by Kristin Alexandria Smith -- ksmith@fosteremploymentlaw.com -- Foster Employment Law & Michael Leslie Thompson, Lehr Middlebrooks Vreeland and Thompson, P.C. 20/20 Communications, Inc., Defendant, represented by Christopher William Decker -- christopher.decker@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC & Wendy V. Miller -- wendy.miller@ogletree.com -- Ogletree Deakins Law Firm, pro hac vice. OPUS BANK: Cal. App. Affirms Judgment in Flores's Suit ------------------------------------------------------ In the case, SANDRA D'AMATO FLORES, Cross-complainant and Appellant, v. OPUS BANK, Cross-defendant and Respondent, 2d Civil No. B277112, Consolidated w/ No. BC514928 (Cal. App.), Judge Martin J. Tangeman of the Court of Appeals of California for the Second District, Division Six, affirmed the trial court's order granting judgment for the Bank. The appeal is one of three appeals by Flores. The other two are from intermediate orders in her putative class action for wage and hour violations against the Bank on behalf of other managers (Los Angeles Superior Court Case No. BC573070; 2d Civil Case Nos. B269866 & B278309). Flores was hired as Vice President and Retail Banking Manager for the Bank. She resigned 15 months later. The Bank sued her. She cross-complained for various wage and hour violations. The trial court granted her motion for summary judgment on the Bank's complaint. Her cross-complaint proceeded to trial. After a bench trial, the court granted judgment for the Bank. It found that Flores was properly classified as an exempt employee under the executive exemption of Industrial Welfare Commission Wage Order 4-2001. Judge Tangeman finds substantial evidence that supports the trial court's determination that Flores' business development activities were part of her management and oversight of the success and growth of her branch and she was properly classified as exempt. Flores' duties involved management, as established by the testimony of the Bank's human resources director and its chief banking officer that Flores was the person responsible for managing a newly opened Pasadena branch and, for several months, was also responsible for managing the South Pasadena branch. It was undisputed that Flores' compensation of $101,000 in her 15 months with the Bank, was sufficient to meet exemption salary requirements. The record does not support Flores' contention that the Bank forfeited reliance on the administrative exemption. Accordingly, the Judge affirmed the judgment. The Bank is awarded its costs on appeal. A full-text copy of the Court's July 25, 2018 Opinion is available at https://is.gd/zdBzP3 from Leagle.com. Brown Gitt Law Group, Cynthia E. Gitt and Thomas P. Brown, for Plaintiff and Appellant. Carothers DiSante & Freudenberger, Todd R. Wulffson -- twulffson@cdflaborlaw.com -- Robin E. Largent -- rlargent@cdflaborlaw.com -- and Ashley A. Halberda -- ahalberda@cdflaborlaw.com -- for Defendant and Respondent. PERRIGO CO: Bid to Dismiss Consolidated Suit Granted in Part ------------------------------------------------------------ Perrigo Company plc 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 court has granted in part and denied in part defendants' motion to dismiss a class action lawsuit. On May 18, 2016, a shareholder filed a securities case against the company and its former CEO, Joseph Papa, in the U.S. District Court for the District of New Jersey (Roofers' Pension Fund v. Papa, et al.). The plaintiff purported to represent a class of shareholders for the period from April 21, 2015 through May 11, 2016, inclusive. The original complaint alleged violations of Securities Exchange Act sections 10(b) (and Rule 10b‑5) and 14(e) against both defendants and 20(a) control person liability against Mr. Papa. In general, the allegations concerned the actions taken by the company and the former executive to defend against the unsolicited takeover bid by Mylan in the period from April 21, 2015 through November 13, 2015. The plaintiff also alleged that the defendants provided inadequate disclosure concerning alleged integration problems related to the Omega acquisition in the period from April 21, 2015 through May 11, 2016. On July 19, 2016, a different shareholder filed a securities class action against the company and its former CEO, Joseph Papa, also in the District of New Jersey (Wilson v. Papa, et al.). The plaintiff purported to represent a class of persons who sold put options on the company's shares between April 21, 2015 and May 11, 2016. In general, the allegations and the claims were the same as those made in the original complaint filed in the Roofers' Pension Fund case. On December 8, 2016, the court consolidated Roofers' Pension Fund case and the Wilson case under the Roofers' Pension Fund case number. In February 2017, the court selected the lead plaintiffs for the consolidated case and the lead counsel to the putative class. In March 2017, the court entered a scheduling order. On June 21, 2017, the court-appointed lead plaintiffs filed an amended complaint that superseded the original complaints in the Roofers' Pension Fund case and the Wilson case. The lead plaintiffs seek to represent a class of shareholders for the period April 21, 2015 through May 3, 2017, and the amended complaint identifies three subclasses - shareholders who purchased shares during the period on the U.S. exchanges; shareholders who purchased shares during the period on the Tel Aviv exchange; and shareholders who owned shares on the final day of the Mylan tender offer November 13, 2015. The amended complaint names as defendants the company and 11 current or former directors and officers of Perrigo (Mses. Judy Brown, Laurie Brlas, Jacqualyn Fouse, Ellen Hoffing, and Messrs. Joe Papa, Marc Coucke, Gary Cohen, Michael Jandernoa, Gerald Kunkle, Herman Morris, and Donal O’Connor). The amended complaint alleges violations of Securities Exchange Act sections 10(b) (and Rule 10b‑5) and 14(e) against all defendants and 20(a) control person liability against the 11 individuals. In general, the allegations concern the actions taken by the company and the former executives to defend against the unsolicited takeover bid by Mylan in the period from April 21, 2015 through November 13, 2015 and the allegedly inadequate disclosure throughout the entire class period related to purported integration problems related to the Omega acquisition, alleges incorrect reporting of organic growth at the Company and at Omega, alleges price fixing activities with respect to six generic prescription pharmaceuticals, and alleges improper accounting for the Tysabri(R) royalty stream. The amended complaint does not include an estimate of damages. In August 2017, the defendants filed motions to dismiss the amended complaint. The plaintiffs filed their opposition in October 2017. The defendants filed replies in support of the motions to dismiss in November 2017. On July 27, 2018, the court issued an opinion and order granting the defendants' motions to dismiss in part and denying the motions to dismiss in part. The court dismissed without prejudice defendants Laurie Brlas, Jacqualyn Fouse, Ellen Hoffing, Gary Cohen, Michael Jandernoa, Gerald Kunkle, Herman Morris, Donal O’Connor, and Marc Coucke. The court also dismissed without prejudice claims arising from the Tysabri(R) accounting issue described above and claims alleging incorrect disclosure of organic growth described above. The defendants who were not dismissed are Perrigo Company, Joe Papa, and Judy Brown. The claims (described above) that were not dismissed relate to the integration issues regarding the Omega acquisition and the alleged price fixing activities with respect to six generic prescription pharmaceuticals. Perrigo said, "We intend to defend the lawsuit vigorously." Perrigo Company plc, a healthcare company, manufactures and supplies over-the-counter (OTC) healthcare products, infant formulas, branded OTC products, and generic pharmaceutical products worldwide. The company operates through Consumer Healthcare Americas, Consumer Healthcare International, and Prescription Pharmaceuticals segments. Perrigo Company plc was founded in 1887 and is headquartered in Dublin, Ireland. PIPEFITTERS ASSOC: Summ. Judgment Bid in Porter Suit Partly OK'd ---------------------------------------------------------------- In the case, DUANE PORTER, KENNETH BLACK, RONALD BOUIE, RICKY BROWN, SAMUEL CLARK, FRANK CRADDIETH, DONALD GAYLES, STEVE WILSON, and JEFFREY PICKETT, on their own behalf and on behalf of a class of all others who are similarly situated, Plaintiffs, v. PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant, Case No. 12 C 9844 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) grants Local 597's motion for summary judgment with regard to the Plaintiffs' Title VII disparate impact claims, two of their LMRA claims (regarding Local 597's enforcement of contractor compliance with the Referral Hall policy and Local 597's grievance policy), and their retaliation claims; (ii) denied the motion with regard to the Plaintiffs' Title VII intentional discrimination claims, Section 1981 claim, and one of their LMRA claims (regarding the creation of the Referral Hall policy); and (iii) denied Local 597's motion to strike Exhibit A of the Plaintiffs' response to their motion for summary judgment. The named Plaintiffs are African American journeyman pipefitters who either belong or belonged to Defendant Local 597. Local 597 is a labor organization and the exclusive bargaining agent for pipefitters working within its territorial jurisdiction, as defined in Local 597's agreement with the Mechanical Contractors Association ("MCA"). The evolution of Local 597's job assignment system, stemming back to a prior discrimination lawsuit, forms the basis for the Plaintiffs' claims. The Plaintiffs claim that they and other African American pipefitters worked comparatively fewer hours than their non-African American counterparts due to Local 597's inequitable job assignment systems. They filed the suit against Local 597, alleging intentional and disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964, and breach of Local 597's duty of fair representation under the Labor Management Relations Act of 1947 ("LMRA"), for failing to represent the interests of all of its members. In addition to their class claims, each of the named Plaintiffs brings a retaliation claim against Local 597, alleging that the union retaliated against them for raising the issue of discrimination. All of the Plaintiffs base their retaliation claims on the continued disparity in hours between African American and white pipefitters, and Wilson and Gayles bring other specific retaliation claims as well. The Court certified the Plaintiffs' class action under Federal Rule of Procedure 23(b)(2) and (b)(3), and Local 597 now moves for summary judgment on all of Plaintiffs' claims. Local 597 moves for summary judgment regarding the Plaintiffs' disparate treatment claim on the basis that they've have not put forth any evidence to show that Local 597 intentionally discriminated. In addition to its objections regarding the substance of the Plaintiffs' Section 1981 claim, Local 597 also argues that the statute of limitations bars Plaintiffs' Section 1981 claim. The Defendants also seek summary judgment on the Plaintiffs' disparate impact claim, arguing that the Plaintiffs have not isolated a specific policy that caused the impact and that they've failed to demonstrate that the Hiring Hall and Referral Hall policies actually caused a disparate impact. The last of the Plaintiffs' class claims are their allegations that Local 597 breached its duty of fair representation under the LMRA. As a preliminary issue, Judge Ellis addresses Local 597's motion to strike Exhibit A to the Plaintiffs' response. Local 597 argues that the Court should not consider Exhibit A, the Memorandum Opinion of the special master appointed in the Daniels litigation, because the Court has already struck Exhibit A and/or allegations referencing it from two different iterations of the Plaintiffs' complaint, and the exhibit is irrelevant, impertinent, and inflammatory. Plaintiffs respond that Exhibit A is relevant, admissible evidence of its claims, and that the Court's prior rulings do not support striking Exhibit A in these circumstances. The Judge finds that Exhibit A provides relevant information at this point in the litigation and that Exhibit A is not unduly prejudicial to Defendants, and so she denied Local 597's motion to strike. Although Local 597 is correct that these cases clarify the line between an employer function and a union's agency function, the Judge finds that they are not particularly helpful, where the Plaintiffs have clearly identified a union policy that they argue promoted or caused discriminatory practices to develop. Essentially, Local 597 can be held liable under Title VII if its actions opened the door for contractors to discriminate based on race, but not for actions that the contractors took on their own. The Plaintiffs' claims fall on the former side of that distinction. Drawing all inferences in the Plaintiffs' favor, the Judge holds that a factfinder could reasonably decide that the presence of the Daniels litigation and the Cade testimony show that Local 597 knew that their lack of enforcement of the Hiring Hall exceptions would lead to discrimination against African American pipefitters. Though it is possible that this argument will not prevail at trial, the Plaintiffs have put forth enough evidence to survive a motion for summary judgment. The other Local 597 decision that Plaintiffs highlight is the union's decision to replace the Hiring Hall with the Referral Hall. The Plaintiffs' intentional discrimination claim regarding this decision survives for the same reason that their other intentional discrimination claim survives. If a reasonable factfinder could find that Local 597 intentionally discriminated when it allowed the abuse of the Hiring Hall exceptions, then Local 597 essentially codified that status quo of discrimination when it created the Referral Hall. Because the Judge finds that Section 1981 Statute of Limitations constitutes a continuing violation, she does not address the Plaintiffs' argument that they did not discover their injury (and thus the clock for the statute of limitations did not start) until long after the implementation of the Referral Hall. Also, the lack of any evidence to show that a Local 597 policy or practice caused the disparity in pipefitter hours is fatal to the Plaintiffs' disparate impact claim. The Plaintiffs have further put forth sufficient evidence from which a reasonable factfinder could conclude that Local 597's creation of the Referral Hall was discriminatory. Finally, the Judge turns to the Plaintiffs' individual retaliation claims. She finds that there is simply not enough information in the record for the other coworker to be a helpful comparator in demonstrating retaliation, and so this claim also is subject to summary judgment. Judge Ellis concluded that because the Plaintiffs have demonstrated a genuine issue of material fact with regard to their intentional discrimination claims, she denied Local 597's motion for summary judgment with regard to the Plaintiffs' Title VII disparate treatment claims, Section 1981 claim, and one of the Plaintiffs' LMRA claims (regarding the creation of the Referral Hall policy). However, the Judge granted Local 597's motion for summary judgment with regard to the Plaintiffs' Title VII disparate impact claims because they cannot establish a prima facie case at trial based on the evidence in the record. She additionally granted Local 597's motion for summary judgment on the Plaintiffs' retaliation claims and two of their LMRA claims (regarding Local 597's enforcement of contractor compliance with the Referral Hall policy and Local 597's grievance policy). Finally, the Judge denied Local 597's motion to strike Exhibit A of the Plaintiffs' response to their motion for summary judgment. A full-text copy of the Court's July 25, 2018 Opinion and Order is available at https://is.gd/usWiap from Leagle.com. Duane Porter, Kenneth Black, Ronald Bouie, Ricky Brown, Samuel Clark, Frank Craddieth, Donald Gayles & Steve Wilson, Plaintiffs, represented by Jamie S. Franklin -- jsf@thefranklinlawfirm.com -- The Franklin Law Firm LLC, Adam B. Goodman -- agoodman@goodtov.com -- Goodman Tovrov Hardy & Johnson LLC, Randall D. Schmidt -- r-schmidt@uchicago.edu -- Mandel Legal Aid Clinic & Wesley E. Johnson -- wjohnson@goodtov.com -- Goodman Tovrov Hardy & Johnson LLC. Jeffrey Pickett, on their own behalves and on behalf of a class of all others who are similarly situated, Plaintiff, represented by Jamie S. Franklin, The Franklin Law Firm LLC. Pipefitters Association Local Union 597, Defendant, represented by Aimee Elizabeth Delaney -- adelaney@hinshawlaw.com -- Hinshaw & Culbertson LLP, Leigh Christina Bonsall, Hinshaw & Culbertson LLP, Linda Kay Horras, Hinshaw & Culbertson LLP & Tom H. Luetkemeyer -- tluetkemeyer@hinshawlaw.com -- Hinshaw & Culbertson LLP. PLS CHECK: 9th Cir. Affirms Dismissal of P. Rangel's FLSA Suit -------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's judgment granting Defendant's Motion to Dismiss the case captioned PEARL RANGEL, as an individual and on behalf of all employees similarly situated, Plaintiff-Appellant, v. PLS CHECK CASHERS OF CALIFORNIA, INC., a California corporation, Defendant-Appellee. No. 16-56826. (9th Cir.). Pearl Rangel appeals from the district court's dismissal, on res judicata grounds, of her wage-and-hour action brought under the Fair Labor Standards Act (FLSA). PLS Check Cashers of California (PLS) is a check casher and payday lender with branches across California. In early 2014, three PLS workers (not including Rangel) filed suit against PLS and a related company, alleging violations of several wage-and-hour and wage statement provisions of the California Labor Code. The parties reached a final settlement in April 2015. This settlement, the so-called Dieguez settlement covered all Class Members who do not timely send a valid Opt-Out Request. The Dieguez settlement defined the class members as all hourly paid or non-exempt employees who worked at a Defendant store within the state of California between January 6, 2010 and April 10, 2015. PLS promptly moved to dismiss on res judicata grounds. PLS argued that the Dieguez settlement resulted in a final judgment in state court on the merits of Rangel's minimum wage and overtime claims. PLS also argued that the Dieguez settlement, which expressly released all claims that could have been brought based on the same factual predicate, functioned as a waiver coextensive with the scope of res judicata. In opposition to PLS's motion to dismiss, Rangel took the position that her FLSA claims could not have been released in the Dieguez settlement because the settlement was the product of an opt-out class asserting only state law labor claims. FLSA collective actions, unlike Rule 23(b)(3) class actions and their state law analogues, are strictly opt-in actions. Workers cannot become plaintiffs to a collective action unless they first file a written consent with the court expressly joining the litigation. According to Rangel, this unique requirement of the FLSA prevented the opt-out class settlement from releasing FLSA claims, and thus prevented the state court's judgment from having any preclusive effect with respect to those claims. In California, res judicata applies if (1) the decision in the prior proceeding was final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. Rangel's FLSA claims, as federal versions of the state law claims asserted in the Dieguez action, are typical examples of claims invoking the same injury to the same right litigated in a prior case. Rangel does not disagree on this point, but instead argues a different one: Her FLSA claims must be distinguished from the California Labor Code claims released in Dieguez because the FLSA claims could not have been litigated through an opt-out class. Rangel is not wrong in her premise; the collective action and opt-out class mechanisms do differ. But she is wrong about the import of that distinction for res judicata purposes. The mechanism of litigation has no impact on the California primary rights analysis. The same injuries to the same rights are at issue in both cases. A full-text copy of the Ninth Circuit's August 16, 2018 Opinion is available at https://tinyurl.com/ycqb7u9c from Leagle.com. Kevin Mahoney -- kmahoney@mahoney-law.net -- (argued), Katherine J. Odenbreit -- kodenbreit@mahoney-law.net -- Atoy H. Wilson -- awilson@mahoney-law.net -- and Dionisios Aliazis -- daliazis@mahoney-law.net -- Mahoney Law Group APC, Long Beach, California, for Plaintiff-Appellant. Ines M. Monte -- imonte@littler.com -- (argued) and Abby Bochenek -- abochenek@littler.com -- Littler Mendelson P.C., Chicago, Illinois, for Defendant-Appellee. PORTFOLIO RECOVERY: Benchemhoun Files Suit Over FDCPA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Portfolio Recovery Associates, L.L.C. The case is titled as Samuel Benchemhoun, on behalf of himself and all other similarly situated consumers v. Portfolio Recovery Associates, L.L.C., Case No. 1:18-cv-04951 (E.D.N.Y., August 30, 2018). The Plaintiff accuses the Defendant of violating the Fair Debt Collection Practices Act. Portfolio Recovery Associates, LLC, provides debt recovery and collection services. The Company specializes in contingency collections for national credit card issuers, consumer lenders, telecommunications providers, retail credit stores, healthcare, utilities, and commercial accounts receivables.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone: (516) 668-6945 E-mail: fishbeinadamj@gmail.com PORTFOLIO RECOVERY: Tucker Suit Alleges FDCPA Breach ---------------------------------------------------- Toby Tucker filed a class action lawsuit against Portfolio Recovery Associates, LLC. The case is titled as Toby Tucker, for himself and on behalf of all those similarly situated individuals v. Portfolio Recovery Associates, LLC, Case No. 2:18-cv-00140-cr (D. Vt., August 30, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Portfolio Recovery Associates, LLC, provides debt recovery and collection services. The Company specializes in contingency collections for national credit card issuers, consumer lenders, telecommunications providers, retail credit stores, healthcare, utilities, and commercial accounts receivables.[BN] The Plaintiff is represented by: Joshua R.I. Cohen, Esq. LAW OFFICES OF JOSHUA R.I. COHEN, LLC 114 Route 100 P.O. Box 1639 West Dover, VT 05363 Telephone: (802) 380-8887 Facsimile: (860) 233-0339 E-mail: jcohen@thestudentloanlawyer.com REMINGTON ARMS: 8th Cir. Affirms Final OK of Deal in Pollard's Suit ------------------------------------------------------------------- In the case, Ian Pollard, Plaintiff-Appellee, v. Remington Arms Company, LLC; Sporting Goods Properties, Inc.; E.I. Du Pont Nemours and Company, Defendants-Appellees, v. Terry Pennington; Rodney Townsend Objectors. Lewis M. Frost; Richard Denney, Objectors-Appellants. Commonwealth of Massachusetts; District of Columbia; State of California; State of Hawaii; State of Illinois; State of Maine; State of Maryland; State of New Mexico; State of New York; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Washington Amici on Behalf of Appellant(s). State of Alabama; State of Arkansas; State of Louisiana; State of Michigan; State of Missouri; State of Nebraska; State of South Carolina; State of South Dakota; State of Utah; State of West Virginia; State of Wisconsin Amici on Behalf of Appellee(s), Case No. 17-1818 (8th Cir.), Judge Ralph R. Erickson of the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's order granting final approval of the class action settlement agreement. Pollard and others brought a class action complaint against Remington; Sporting Goods Properties, Inc.; and E.I. Du Pont Nemours and Co., in which they alleged certain Remington rifles were susceptible to unintentional firing without a trigger pull. Among other things, the class members sought to require Remington to repair or replace their firearms. After extensive settlement negotiations, the parties finalized a nationwide settlement. The settlement provided benefits in the form of retrofitted triggers, vouchers, and/or reimbursement for replacing the firearm's original trigger mechanism to United States residents who owned certain Remington rifles manufactured from 1948 to the present. In exchange for these benefits, the class members would release claims associated with the firearms but the settlement terms exempted claims for personal injury or property damage. The parties' notice plan included: (1) a joint press release; (2) direct notice; (3) short form notice; (4) long form notice; (5) notice through a settlement website; and (6) notice through social media and the Internet. The court approved service award payments in the amount of $2,500 to each class representative and approved $12.5 million in attorney's fees to the class counsel minus costs and expenses in the amount of $474,892.75. Appellants Frost and Denney ("objectors") appeal the district court's order granting final approval of the class action settlement agreement. On appeal, they argue that the district court abused its discretion by approving a class action settlement that utilized an inadequate notice plan and one that provided inadequate relief to the class members. Judge Erickson holds that he's mindful that while the claim submission rate is not desirable, the notice plan was adequate and satisfied the methods and mechanisms for disseminating notice set forth in Rule 23 of the Federal Rules of Civil Procedure. The district court did not abuse its discretion in approving the notice plan. The Judge has carefully reviewed the record. In determining whether to approve the settlement, he finds that the district court balanced the strength of the class members' claims against the settlement terms, considered Remington's financial condition, analyzed the complexity and expense of further litigation, and reviewed the opposition to the settlement. The objectors ignore the substantial risk that they would not prevail if the litigation had continued. The parties removed personal injury and property damage claims from the terms of the settlement agreement. They also removed differences among state law by agreement. The Judge has found that a settlement agreement is not rendered unfair because it does not account for differences in state laws. Finally, he finds that the record makes plain that the settlement agreement was reached following meaningful discovery and investigation by the class counsel and arm's length negotiations between the parties. He concludes that the settlement was fair, reasonable, and adequate, and he affirms the district court's order approving the settlement. Accordingly, the judgment of the district court is affirmed. A full-text copy of the Court's July 25, 2018 Order is available at https://is.gd/y8xeFG from Leagle.com. Mark T. Kempton, for Objector-Appellant. Timothy W. Monsees, for Plaintiff-Appellee. John R. Climaco -- jrclim@climacolaw.com -- for Plaintiff-Appellee. John K. Sherk, III -- jsherk@shb.com -- for Defendant-Appellee. Richard J. Arsenault -- rarsenault@nbalawfirm.com -- for Plaintiff-Appellee. Randall Seth Crompton -- scrompton@allfela.com -- for Plaintiff-Appellee. Eric D. Holland -- eholland@allfela.com -- for Plaintiff-Appellee. Charles E. Schaffer -- cschaffer@lfsblaw.com -- for Plaintiff-Appellee. Molly S. Carella -- mcarella@shb.com -- for Defendant-Appellee. Andrew Arthur Lothson -- alothson@smbtrials.com -- for Defendant-Appellee. Scott Bursor -- scott@bursor.com -- for Objector-Appellant. W. Mark Lanier, for Plaintiff-Appellee. John Peca -- japeca@climacolaw.com -- for Plaintiff-Appellee. Jon D. Robinson -- jrobinson@brelaw.com -- for Plaintiff-Appellee. Amy M. Crouch -- amcrouch@shb.com -- for Defendant-Appellee. RIPPLE LABS: Plaintiff's Bid to Keep Class Action in Calif. Nixed ----------------------------------------------------------------- Daily Hodl reports that a judge has denied an attempt to keep a lawsuit against Ripple in the state of California. The case, brought forth by XRP investor Ryan Coffey, claims Ripple Labs and CEO Brad Garlinghouse violated federal securities laws through the company's sale of XRP. Mr. Coffey attempted to keep the case in California instead of having it tried in federal court. That effort was denied on Aug. 10. Ripple's lawyers argued the case should be dismissed so that it could be moved to federal court under the Class Action Fairness Act, which allows federal courts to preside over certain wide-ranging class-action lawsuits. This case is one of three similar lawsuits filed against Ripple in recent months. [GN] SOLOW BUILDINGS: Faces Fischler ADA Suit in New York ---------------------------------------------------- A class action lawsuit has been filed against Solow Buildings Company, L.L.C. The case is captioned as Brian Fischler, Individually and on behalf of all other persons similarly situated v. Solow Buildings Company, L.L.C., Case No. 1:18-cv-07945 (S.D.N.Y., August 30, 2018). The Plaintiff alleges violations of the Americans with Disabilities Act. Solow Building Company, LLC owns and builds residential properties. The company is based in New York, New York.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com SOUTH PARK: Davis Suit Seeks to Recover Lost Wages -------------------------------------------------- Holly Davis and Laura Staten, on behalf of themselves and all others similarly situated, Plaintiffs v. South Park Health Care, LLC and Midwest Geriatric Management, LLC, Defendants, Case No. 18-cv-00594, (W.D. Okla., June 18, 2018), seeks recovery of lost wages (front and back pay), compensatory and punitive damages, reasonable judgment interest, reasonable attorneys' fees, court costs and litigation costs and such further relief for violation of the Oklahoma Protection of Labor Act. Defendants own and operate multiple living centers that provide rehabilitation, skilled nursing, and long-term care in Iowa, Missouri and Oklahoma where Plaintiffs worked as staffing coordinators at their healthcare facility at 5725 South Ross Avenue in Oklahoma City, Oklahoma 73119. Defendant allegedly did not record or maintain accurate records of hours worked by the Plaintiffs and where not compensated for work done outside their facilities. [BN] Plaintiff is represented by: D. Colby Addison, Esq. Leah M. Roper, Esq. LAIRD HAMMONS LAIRD PLLC 1332 SW 89th Street Oklahoma City, OK 73159 Tel: (405) 703-4567 Fax: (405) 703-4567 E-mail: colby@lhllaw.com leah@lhllaw.com SOUTHWEST CREDIT: Faces Cirruzzo Suit Alleging FDCPA Violations --------------------------------------------------------------- A class action lawsuit has been filed against Southwest Credit Systems, L.P. The case is styled as Barbara Cirruzzo, individually and on behalf of all others similarly situated v. Southwest Credit Systems, L.P., Case No. 1:18-cv-04949 (E.D.N.Y., August 30, 2018). The Plaintiff alleges violations of the Fair Debt Collection Practices Act. Southwest Credit Systems, L.P., was founded in 2003. The Company's line of business includes collection and adjustment services on claims and other insurance related issues.[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 SPEAR CENTER: Sued by Diaz in N.Y. for Violating Disabilities Act ----------------------------------------------------------------- A class action lawsuit has been filed against S.P.E.A.R. Center, LLC pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated v. S.P.E.A.R. Center, LLC, doing business as: Spear, Case No. 1:18-cv-07955 (S.D.N.Y., August 30, 2018).[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal ST. JUDE MEDICAL: Stikeman Elliott Attorneys Discuss Court Ruling ----------------------------------------------------------------- Samaneh Hosseini, Esq. -- shosseini@stikeman.com -- of and Zev Smith, Esq. -- zsmith@stikeman.com -- of Stikeman Elliott LLP, in an article for Lexology, report that over the past few years, third-party litigation funding -- including funding by major international litigation funders -- has become increasingly common in class actions litigation in Canada. In a recent decision, Houle v. St. Jude Medical Inc., the Ontario Superior Court of Justice summarized the current state of the law regarding litigation funding agreements. The decision is one of the first to address the interplay between the Law Foundation of Ontario's Class Proceedings Fund[1] and private third-party funding agreements, referring to the rules relating to the Fund to limit (by analogy) a third-party funder's contingency fee to 10%, with amounts greater than 10% being subject to Court approval. Background The plaintiffs commenced a class action on behalf of all people in Canada who were implanted with certain cardiac defibrillators manufactured by the defendant, St. Jude Medical Inc. The allegations were that St. Jude had: 1. Negligently designed, developed, manufactured and distributed several models of the defibrillators; and Failed to warn its customers of the potential defects once they were known. 2. Agreements with Counsel and the Third-Party Funder The representative plaintiffs retained counsel under a contingency fee arrangement that originally specified that class counsel were to receive 33% on a contingency basis. However, class counsel decided that they did not want to be responsible for disbursements and any potential adverse awards of costs. As a result, those issues were dealt with in a separate litigation funding agreement between the representative plaintiffs and Bentham IMF Limited, a global litigation financier. Bentham agreed to pay, on a non-recourse basis: 1. Disbursements incurred by class counsel up to a prescribed maximum amount, after which amount, class counsel would fund the disbursements; 2. Any adverse costs awards against the representative plaintiffs; 3. Any security for costs; and 4. 50% of the reasonable docketed time of class counsel, up to a prescribed maximum amount. (The Court noted that this clause effectively created a very unusual "hybrid" retainer whereby class counsel was paid 50% of their fees on a non-contingent basis and the remaining 50% on contingency.) In exchange for the funding, Bentham would receive between 20%-25% of the litigation proceeds with class counsel receiving between 10%-13% of such proceeds, depending on when the litigation was resolved. This arrangement (which superseded the 33% arrangement in the retainer) had the unusual feature of allocating more of the litigation funding to the third-party funder than it did to class counsel (typically it is the other way around). Approving a Funding Agreement: What the Court Will Consider In considering whether to approve the funding agreement, the Court concluded that the "general test for determining whether to approve a third-funding [sic] agreement is that the agreement should not be champertous or illegal and it must be a fair and reasonable agreement that facilitates access to justice while protecting the interests of the defendants." The Court identified seven prerequisites for approval of a litigation funding agreement in the context of a class action proceeding: 1. The procedural, technical, and evidentiary requirements that enable the Court to scrutinize the funding agreement must be satisfied. In assessing this, the Court will consider, among other things, whether (i) the representative plaintiffs received independent legal advice, (ii) the retainer and third party financing agreement were disclosed to the Court and/or defendant; (iii) the third party financier is willing to provide security for costs; and (iv) the background factual circumstances are proffered to the Court; 2. Third-party funding must be necessary. Absent necessity, a funding agreement will not be approved; 3. The third-party financier must make a meaningful contribution to access to justice or behaviour modification. In essence, the funding must be sufficient to achieve the goals of the class action regime or administration of justice; 4. The third-party financier must not be overcompensated or unduly rewarded in the particular circumstances; 5. The third party financier must not interfere with the lawyer-client relationship, the lawyer's duty of loyalty and confidentiality or the lawyer's professional judgment and carriage of the litigation on behalf of the representative plaintiff or class members; 6. The litigation funding agreement must contain a term that the third-party financier will be bound by the deemed undertaking rule and will be bound not to disclose confidential or privileged information; and 7. The litigation funding agreement must not be illegal. Application to this Case Applying these factors to the proposed funding agreement, the Court determined that the proposed funding agreement risked overcompensating Bentham (point 4, above) and interfered with the representative plaintiffs' lawyer-client relationship (point 5, above): * With respect to overcompensation, the Court expressed concern that Bentham's recovery was uncapped and that the amount of its recovery would be unknown until the final determination of the dispute when the amount of litigation proceeds is ultimately determined. * The Court was of the view that the lawyer-client relationship was undermined by the Bentham agreement, which gave the impression that "the Houles and Class Counsel have promised to prosecute the proposed class action as much, if not more, on behalf of Bentham than on behalf of the Class Members." While it passed the other tests, the inadequacy of the agreement with respect to points 4 and 5 meant that the Court was not prepared to approve the agreement in its current form. However, the Court advised the parties that it was willing to approve the agreement if Bentham made certain amendments, such as reducing its share of the contingency fee to 10% -- i.e. treating it in the same manner as Ontario's Class Proceedings Fund -- and making the balance of its compensation conditional on court approval. The Court reasoned that such an amendment would ensure that Bentham would not be overly compensated as any amounts in excess of the Class Proceedings Fund would be subject to Court approval. Key Conclusions Houle is instructive on the parameters and structure of acceptable third party funding agreements in Canada and how the practices of international litigation financiers may need to be adjusted for the Canadian class proceedings environment. Specifically, the decision provides: That the financier's contingency fee should not be greater than 10% unless any excess amounts are subject to Court approval; and That the financier cannot, expressly or impliedly, usurp control or carriage of the litigation from the representative plaintiff(s). [GN] SUNRUN INC: Agreement in Principle Reached in Fink Suit ------------------------------------------------------- Sunrun 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 reached an agreement in principal with plaintiffs to settle all claims asserted in a federal class action litigation against all defendants for $2.5 million, all of which will be funded by the Company's insurers. On May 3, 2017, a purported shareholder class action captioned Fink, et al. v. Sunrun Inc., et al., Case No. 3:17-cv-02537, was filed in the United States District Court, Northern District of California, against the Company and certain of the Company's directors and officers. The complaint generally alleges that the defendants violated Sections 10(b) and 20(a) of the Exchange Act of 1934, and Securities and Exchange Commission Rule 10b-5, by making false or misleading statements in connection with public filings made between September 15, 2015 and March 8, 2017 regarding the number of customers who canceled contracts after signing up for the Company's home-solar energy system. The plaintiff seeks compensatory damages, including interest, attorney's fees, and costs, on behalf of all persons other than the defendants who purchased the Company's securities between September 16, 2015 and May 2, 2017. On May 4, 2017, a purported shareholder class action captioned Hall, et al. v. Sunrun Inc., et al., Case No. 3:17-cv-02571, was filed in the United States District Court, Northern District of California. On May 18, 2017, a purported shareholder class action captioned Sanogo, et al. v. Sunrun Inc., et al., Case No. 3:17-cv-02865, was filed in the United States District Court, Northern California District of California. The Hall and Sanogo complaints are substantially similar to the Fink complaint, and seeks similar relief against similar defendants on behalf of a substantially similar class. On August 23, 2017, the Fink, Hall, and Sanogo actions were consolidated, and on September 25, 2017, plaintiffs filed a consolidated amended complaint which alleges the same underlying violations as the original Fink, Hall and Sanogo complaints (such consolidated action referred to as the "federal court litigation"). On April 5, 2018, the court granted the Company's motion to dismiss without prejudice. Plaintiffs filed a second amended complaint on May 3, 2018. On July 19, 2018, the court again granted defendants' motion to dismiss without prejudice. On August 8, 2018, the Company reached an agreement in principal with plaintiffs to settle all claims asserted in the federal court litigation against all defendants for $2.5 million, all of which will be funded by the Company's insurers. Sunrun said "The Company and all defendants have denied, and continue to deny, the claims alleged in the federal court litigation and the settlement does not reflect any admission of fault, wrongdoing or liability as to any defendant. The settlement is subject to definitive documentation, shareholder notice and court approval." Sunrun Inc. engages in the design, development, installation, sale, ownership, and maintenance of residential solar energy systems in the United States. It also sells solar leads. The company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Sunrun Inc. was founded in 2007 and is headquartered in San Francisco, California. SUNRUN INC: Agreement in Principle Reached in State Court Suit -------------------------------------------------------------- Sunrun 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 parties have entered into an agreement in principle to settle all claims asserted in state court litigation against all defendants. On April 13, 2016, a purported shareholder class action captioned Pytel v. Sunrun Inc., et al., Case No. CIV 538215, was filed in the Superior Court of California, County of San Mateo, against the Company, certain of the Company's directors and officers, the underwriters of the Company's initial public offering and certain other defendants. The complaint generally alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act of 1933 by making false or misleading statements in connection with the Company's August 5, 2015 initial public offering regarding the continuation of net metering programs. The plaintiffs seek to represent a class of persons who acquired the Company's common stock pursuant or traceable to the initial public offering. Plaintiffs seek compensatory damages, including interest, rescission or rescissory damages, an award of reasonable costs and attorneys' fees, and any equitable or injunctive relief deemed appropriate by the court. On April 29, 2016, a purported shareholder class action captioned Baker et al. v. Sunrun Inc., et al., Case No. CIV 538419, was filed in the Superior Court of California, County of San Mateo. On May 10, 2016, a purported shareholder class action captioned Nunez v. Sunrun Inc., et al., Case No. CIV 538593, was filed in the Superior Court of California, County of San Mateo. The Baker and Nunez complaints are substantially similar to the Pytel complaint, and seek similar relief against similar defendants on behalf of the same purported class. On May 3, 2018, plaintiffs filed a second amended complaint including allegations related to the alleged effect of customer cancellations on the Company's business. On April 21, 2016, a purported shareholder class action captioned Cohen, et al. v. Sunrun Inc., et al., Case No. CIV 538304, was filed in the Superior Court of California, County of San Mateo, against the Company, certain of the Company's directors and officers, and the underwriters of the Company's initial public offering. The complaint generally alleges that the defendants violated Sections 11, 12 and 15 of the Securities Act of 1933 by making false or misleading statements in connection with an August 5, 2015 initial public offering regarding the Company's business practices and its dependence on complex financial instruments. The Cohen plaintiffs seek to represent the same class and seek similar relief as the plaintiffs in the Pytel, Nunez, and Baker actions. On September 26, 2016, the Baker, Cohen, Nunez, and Pytel actions were consolidated (such consolidated action referred to as the "state court litigation"). On December 27, 2017, the court granted Plaintiffs' motion for class certification. Following a mediation on May 4, 2018, the parties entered into an agreement in principle to settle all claims asserted in the state court litigation against all defendants. The aggregate amount of the proposed settlement is $32.0 million, $30.1 million of which will be funded by the Company's insurers and the remaining $1.9 million of which has been accrued. Sunrun said, "The Company and all defendants have denied, and continue to deny, the claims alleged in the state court litigation and the settlement does not reflect any admission of fault, wrongdoing or liability as to any defendant. The settlement is subject to definitive documentation, shareholder notice and court approval." Sunrun Inc. engages in the design, development, installation, sale, ownership, and maintenance of residential solar energy systems in the United States. It also sells solar leads. The company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Sunrun Inc. was founded in 2007 and is headquartered in San Francisco, California. SUNRUN INC: Bid for Initial Approval of Slovin Accord Underway -------------------------------------------------------------- Sunrun 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 a motion for preliminary approval in the putative class action suit entitled, Slovin et al. v. Sunrun Inc. and Clean Energy Experts, LLC, is underway. On November 20, 2015, a putative class action captioned Slovin et al. v. Sunrun Inc. and Clean Energy Experts, LLC, Case No. 4:15-cv-05340, was filed in the United States District Court, Northern District of California. The complaint generally alleged violations of the Telephone Consumer Protection Act (the "TCPA") on behalf of an individual and putative classes of persons alleged to be similarly situated. Plaintiffs filed a First Amended Complaint on December 2, 2015, and a Second Amended Complaint on March 25, 2016, also asserting individual and putative class claims under the TCPA. By Order entered on April 28, 2016, the Court granted the Company's motion to strike the class allegations set forth in the Second Amended Complaint, and granted leave to amend. Plaintiffs filed a Third Amended Complaint on July 12, 2016 asserting individual and putative class claims under the TCPA. On October 12, 2016, the Court denied the Company's motion to again strike the class allegations set forth in the Third Amended Complaint. On October 3, 2017, plaintiffs filed a motion for leave to file a Fourth Amended Complaint, seeking to, among other things, revise the definitions of the classes that plaintiffs seek to represent. The Company has opposed that motion, which remains pending before the Court. In each iteration of their complaint, plaintiffs seek statutory damages, equitable and injunctive relief, and attorneys' fees and costs, on behalf of themselves and the absent classes. On April 12, 2018, the Company and plaintiffs advised the Court that they reached a settlement in principle, and the Court vacated all deadlines relating to the motion for class certification. Plaintiffs are required to file any motion for preliminary approval by August 30, 2018. Sunrun Inc. engages in the design, development, installation, sale, ownership, and maintenance of residential solar energy systems in the United States. It also sells solar leads. The company markets and sells its products through direct channels, partner channels, mass media, digital media, canvassing, referral, retail, and field marketing. Sunrun Inc. was founded in 2007 and is headquartered in San Francisco, California. TDS TELECOM: Faces Tucker Suit in N. Dist. Georgia -------------------------------------------------- A class action lawsuit has been filed against TDS Telecom Service, LLC. The case is captioned as Bobby Tucker, Gay Vann, Dennis Robichaud, William Cagle and Nema Mobley, on behalf of themselves and all others similarly situated v. TDS Telecom Service, LLC, Case No. 2:18-cv-00150-RWS (N.D. Ga., August 30, 2018). The nature of suit is stated as petition to order arbitration and failure to arbitrate. Headquartered in Madison, Wisconsin, TDS Telecommunications LLC is the seventh largest local exchange telephone company in the U.S. with 1.2 million connections to high-speed internet, phone, and TV entertainment services in nearly 900 rural, suburban, and metropolitan communities. TDS operates BendBroadband, which is part of TDS Broadband Service LLC. For residential customers, TDS deploys up to 1Gig internet access, IPTV service (TDS TV), cable TV options, and traditional wireline services. For businesses, TDS offers advanced communications solutions, including: VoIP (managedIP Hosted voice), high-speed Internet, fiber optics, data networking, and hosted-managed services.[BN] The Plaintiffs are represented by: William Todd Harvey, Esq. BURKE HARVEY, LLC 3535 Grandview Parkway, Suite 100 Birmingham, AL 35243 Telephone: (205) 930-9091 Facsimile: (205) 930-9054 E-mail: tharvey@burkeharvey.com TESLA INC: Faces 3rd Class Action Over Elon Musk's Stock Tweets --------------------------------------------------------------- Bryan Menegus, writing for Gizmodo, reports that embattled electric car manufacturer Tesla racked up its third class-action suit, filed this evening in California's Northern District Court, stemming from bizarre and potentially unfounded tweets sent by CEO Elon Musk. The first such suit was filed on Aug. 10 by Tesla short seller Kalman Isaacs, who contended that the tweets were solely intended to manipulate the company's stock price -- a move that's estimated to have cost Isaacs and those making similar bets upwards of $1 billion. Those advocating for or actually shorting his electric car venture have rankled Mr. Musk, who went so far as to call such traders "jerks who want us to die." Another, similar class-action -- Chamberlain v Tesla—came the same day. Interestingly, John Yeagar, the plaintiff in this new suit, was not a short seller at all. His suit states that "the fraudulent nature of Musk's statements was uncovered over the next two days when neither Tesla nor Mr. Musk substantiated Mr. Musk's claim that there was secure financing for a going-private transaction at $420 a share" and causing the stock price to drop from "$379.57 per share, on August 7, 2018, to close at $352.27 per share, on August 9, 2018." One assumes Mr. Yeagar jumped at the opportunity to buy Tesla stock and then sell it off at the proposed $420 per share price tag, only to see its value drop after investors began to question the veracity of Musk's claims. Mr. Yeagar's filing reiterates what much of what the prior suits allege: that despite affirmative statements from Musk of having secured proper investment to go private, no such plans had been made. In essence, what was initially considered to be a stupid weed joke has cost Mr. Musk the goodwill of Tesla fans (or at least those seeking to profit from his offer to go private at $420), deepened his already contentious relationship with short sellers, led to an SEC investigation, and could potentially cost him quite a losses in court. Given the enormity of consequences, perhaps there's some credence to Azealia Banks's accusation of the CEO tweeting while tripping on LSD, given that main the alternative explanation is Musk engaging in obvious, poorly-executed fraud. [GN] TESLA INC: Oct. 9 Lead Plaintiff Motion Deadline Set ---------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC on Aug. 13 notified investors that a class action lawsuit has been filed Tesla, Inc. ("Tesla" or the "Company") (NASDAQ : TSLA) and its CEO, Elon Musk ("Musk"), on behalf of shareholders who purchased or otherwise acquired Tesla securities between August 7, 2018 and August 10, 2018, (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/tsla. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint states that on August 7, 2018, Musk stated on Twitter: (1) "Am considering taking Tesla private at $420"; (2) "Funding secured"; (3) "Shareholders could either to sell at 420 or hold shares & go private"; and (4) "Investor support is confirmed." Following these tweets, Tesla shares went up as much as $45.47 per share, or 13%, during intraday trading before closing at $379.57 on August 7, 2018. Since then, both the U.S. Securities and Exchange Commission and Tesla's board of directors are reportedly investigating the truth of Musk's tweets, and whether in fact funding had been secured. Several large investors and banks have said that they are unaware of any funding. Following the news of these investigations Tesla stock has dropped to close at $355.49 per share on August 10, 2018. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) contrary to Musk's statements that funding had been "secured" to take Tesla private at $420 per share, no such funding had been secured; and (2) contrary to Musk's statement that investor support to take Tesla private "is confirmed," there was no such confirmation. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/tsla or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Tesla you have until October 9, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC -- https://www.bgandg.com -- is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] TIGER BRANDS: Two Listeriosis Class Actions Combined Into One ------------------------------------------------------------- Marleny Arnoldi, writing for Creamer Media's Engineering News, reports that the attorneys acting on behalf of the different applicants in two separate listeriosis class action lawsuits against Tiger Brands over the listeriosis outbreak have agreed to combine the lawsuits into a single certification application. Tiger Brands on Aug. 14 said its legal representatives had, on Aug. 13, met with the attorneys for claimants, Richard Spoor and LHL Attorneys, and the Deputy Judge President of the Gauteng local division of the High Court, Johannesburg to discuss the matter. The attorneys will now jointly represent all the applicants and, as a result, the application by LHL Attorneys will be discontinued. At the meeting, the parties advised the Deputy Judge President that they have agreed on the broad terms of a draft certification order. The next step in the certification proceedings is for the allocation of a judge, who will convene a hearing to consider the proposed order. The draft order agreed between the parties allows the certification action to proceed. In terms of the proposed order, it is envisaged that four distinct groups of persons will constitute classes for the purposes of the class action. These four classes encompass all claimants who could potentially have a claim against the company, following a listeriosis outbreak in March at Tiger Brands' subsidiary Enterprise Foods' manufacturing facility in Polokwane, which could potentially have resulted in the 200 recorded listeriosis-caused deaths since the outbreak. Subject to the approval and granting of the certification order, the class action will then proceed in two stages. The first stage is to determine whether or not the company is liable. If at the end of the first stage, it is determined that the company is liable in respect of all or any of the four classes, then all claimants who had not opted out of the class action will be bound by that ruling. Following on from this, and assuming the company is held liable, the class action will then proceed to the second stage, namely to determine the extent of the damages due to each class in general, and to each claimant in particular. Claimants will be required to expressly opt in to the second stage of the class action by giving formal notice to the claimants' attorneys, and only those claimants who opt in will have the benefit of and be bound by the outcome of the second stage. Tiger Brands continues to work closely with its insurers to ensure that the entire process is managed as efficiently as possible. Up until June, the company has recalled and destroyed 4 000 t of value-added meat products, costing the company R415-million. Tiger Brands has also closed three plants and spent R50-million in remediating its facilities. These facilities are anticipated to reopen in September. [GN] TLC RESORTS: Court Compels Arbitration in Augustine's TCPA Suit --------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendant's Motion to Compel Arbitration in the case captioned OPHELIA AUGUSTINE, Plaintiff, v. TLC RESORTS VACATION CLUB, LLC; and DOES 1 through 20, Defendants. Case No. 3:18-cv-01120-H-JMA. (S.D. Cal.). Before the Court is Defendant TLC Resorts Vacation Club, LLC's motion to compel arbitration or, in the alternative, to dismiss for failure to state a claim. The Plaintiff allegedly incurred a financial obligation to Defendant as a result of unpaid timeshare membership dues (debt). It is alleged that, in an effort to collect the debt and to promote a marketing ploy, the Defendant sent the Plaintiff text messages in violation of the Telephone Consumer Protection Act (TCPA). Moving to compel arbitration, the Defendant submitted copies of several documents comprising the Plaintiff's timeshare membership enrollment packet, including a Membership Enrollment Agreement (MEA), Verification of Purchase, and Participation Agreement, each of which Plaintiff completed and signed in September 2014. The only reference to arbitration among these documents is found in the one-page MEA. The Plaintiff opposes the Defendant's motion to compel arbitration on the grounds that she never entered into an agreement to arbitrate. In support of this argument, Plaintiff filed a declaration stating she was never provided with the Club Rules at any point. She also claimed that she had no opportunity to read the Club Rules or any reason to investigate them because she believed all substantive terms of the agreement were provided to her within the documents she executed. Legal Standards The Federal Arbitration Act (FAA) permits a party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration to petition any United States District Court for an order directing that arbitration proceed in the manner provided for in the arbitration agreement. Existence of Agreement to Arbitrate As the party moving to compel arbitration, Defendant bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. To determine whether an agreement to arbitrate exists, the Court applies ordinary state-law principles that govern the formation of contracts. Choice of Law The Membership Enrollment Agreement and Club Rules provide that Nevada law governs Plaintiff's membership. Here, both the Membership Enrollment Agreement, signed by Plaintiff, and the Club Rules contain a choice-of-law provision specifying that Nevada law applies. The Court finds that Nevada has a substantial relationship to this dispute, given that Plaintiff attended Defendant's sales presentation and purchased her timeshare membership in Las Vegas, and that application of Nevada law would not be contrary to any fundamental California policy. Additionally, Plaintiff contends that the outcome in this case is the same whether the Court applies Nevada or California law. In sum, Nevada law applies to this dispute. Whether Agreement to Arbitrate Exists Under Nevada Law The Defendant bears the burden of showing the existence of an arbitration agreement by a preponderance of the evidence. Under Nevada law, an agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except as otherwise provided in Nevada Revised Statutes section] 597.995 or upon a ground that exists at law or in equity for the revocation of a contract. Here, the Defendant has submitted a copy of Plaintiff's signed, one-page Membership Enrollment Agreement, or MEA. Directly above Plaintiff's signature on the MEA is the arbitration term: As described more fully in the Club Rules, any disputes are subject to mandatory arbitration to take place in and around Clark County, Nevada. In signing the MEA, Plaintiff acknowledged that her timeshare membership was governed by the Club Rules and the other Club Documents and that she had reviewed and had the opportunity to ask questions regarding the Club Documents prior to paying any amount hereunder. Defendant has also submitted a copy of its Club Rules, which contain a more detailed arbitration provision. The Defendant's sales manager, who was present when Plaintiff purchased her timeshare membership in Las Vegas, declares under penalty of perjury that during the enrollment process, representatives will review the enrollment forms with the guest, make sure that everything is clear and understood and ensure that the documents are executed. In addition, buyers are provided copies of all documents they sign and an electronic copy of the Club Rules on a DVD. He also states that Defendant's sales representatives always point out that [they] are including a copy of the Club Rules via DVD. To the best of his recollection, these standard procedures were followed when the Plaintiff enrolled. Moreover, Defendant's owner and manager states in his declaration that the Club Rules were provided to Plaintiff. This evidence is sufficient to meet Defendant's burden. Plaintiff does not deny that she signed the MEA, which contains a mandatory arbitration term and expressly references the Club Rules. Indeed, the MEA provides that Plaintiff reviewed and had the opportunity to ask questions regarding the Club Documents. Validity of Agreement to Arbitrate The Plaintiff next argues that any agreement to arbitrate in this case is unconscionable because it contains overly harsh terms. The Plaintiff cites no Nevada authority, and this Court is aware of none, suggesting that mere inconvenience and expense are sufficient to establish substantive unconscionability. Plaintiff's arguments regarding the Club Rules arbitration clause's breadth are also unpersuasive. Plaintiff relies on a case from this District, In re Jiffy Lube International, Inc., 847 F.Supp.2d 1253 (S.D. Cal. 2012), but that case is factually distinguishable and did not involve application of Nevada law or California law, for that matter. Moreover, numerous courts in Nevada and other states have found arbitration provisions containing equally broad language concerning the scope of the provision to be conscionable and enforceable. Furthermore, the Club Rules arbitration clause is bilateral, We each agree to resolve any disputes through binding arbitration or small claims court instead of in courts of general jurisdiction); provides that Plaintiff will select the arbitrator from a panel chosen by Defendant from the American Arbitration Association's (AAA) pool of arbitrators; and establishes that AAA rules currently in effect will apply to any arbitration. These provisions weigh against a finding of substantive unconscionability. The Court concludes that, under the circumstances, the Club Rules arbitration clause is not substantively unconscionable. Because the Plaintiff has not shown the existence of procedural and substantive unconscionability, the arbitration clause may be enforced under Nevada law. The Court grants the Defendant's motion to compel arbitration. A full-text copy of the District Court's August 16, 2018 Order is available at https://tinyurl.com/yba26zuu from Leagle.com. Ophelia Augustine, Plaintiff, represented by Joshua B. Swigart , Hyde & Swigart & Daniel G. Shay , Law Offices of Daniel G. Shay. TLC Resorts Vacation Club, LLC, Defendant, represented by Andrew Daniel Bluth , Lewis Brisbois Bisgaard & Smith LLP. TRAK-1 TECHNOLOGY: Wright Files Suit in S.C. Over FCRA Violation ---------------------------------------------------------------- A class action lawsuit has been filed against Trak-1 Technology Inc. The case is titled Rodney Wright, on behalf of himself and all others similarly situated v. Trak-1 Technology Inc., Case No. 6:18-cv-02406-BHH (D.S.C., August 30, 2018). The Plaintiff filed the case under the Fair Credit Reporting Act. TRAK-1 Technology, Inc., owns and operates a Web-based screening platform for employment, volunteer, and tenant background screening needs. The Company was founded in 1996 and is based in Tulsa, Oklahoma. As of April 16, 2018, TRAK-1 operates as a subsidiary of PeopleFacts LLC.[BN] The Plaintiff is represented by: David Andrew Maxfield, Esq. DAVID MAXFIELD ATTORNEY LLC PO Box 11865 Columbia, SC 29211 Telephone: (803) 509-6800 Facsimile: (855) 299-1656 E-mail: dave@consumerlawsc.com TROPICAL CHINESE: Jianbo Sues Over Unpaid Min., Overtime Wages -------------------------------------------------------------- Jianbo Li, individually and on behalf of themselves and all others similarly situated, Plaintiffs, vs. Tropical Chinese Restaurant Corp. (d/b/a Tropical Chinese), Wen Sho Yu, Lee Chu Yu, Gregory T. Yu and Yu Mei, Defendants, Case No. 18-cv-22459 (S.D. Fla., June 19, 2018), seeks to recover unpaid wages, unpaid minimum wages and unpaid overtime compensation, interests, damages for unreasonably delayed payment of wages, reasonable attorneys' fees and costs and disbursements of the action pursuant to the Fair Labor Standards Act. Defendants own a restaurant located at 7991 SW 40 Street Miami, Florida, "Tropical Chinese", where Jianbo was employed as a kitchen helper. He was required to work for Defendants well in excess of forty hours per week without overtime, says the complaint. [BN] The Plaintiff is represented by: Martha L. Mendez, Esq. Brett Feinstein, Esq. FEINSTEIN & MENDEZ, P.A. 14 N.E. 1st Avenue, Suite 1109 Miami, FL 33132 Tel: (786) 636-8938 Fax: (786) 636-8941 Email: martha@fpmlawfirm.com brett@fpmlawfirm.com - and - Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Ave., Suite #1003 Flushing, NY 11354 Telephone: (718) 353-8588 Email: jhang@hanglaw.com ULTHERA INC: Court Denies Bid to Dismiss Tryan's CLRA Suit ---------------------------------------------------------- The United States District Court for the Eastern District of California granted in part and denied in part Defendants' Motion to Dismiss the case captioned GEORGIA TRYAN and MARILYN ECHOLS, as individuals, and on behalf of other members of the general public similarly situated, Plaintiffs, v. ULTHERA, INC., a Delaware corporation; and MERZ NORTH AMERICA, INC., a Delaware corporation, Defendants, No. 2:17-cv-02036-MCE-CMK (E.D. Cal.). Plaintiffs Georgia Tryan and Marilyn Echols, on behalf of themselves and others similarly situated, allege that Defendants Ulthera, Inc., and Merz North America, Inc., engaged in false and misleading marketing practices concerning their sale of an ultrasound device designed to mitigate skin wrinkles. The Plaintiffs' Complaint seeks relief under three California statutes: (1) the Consumers Legal Remedies Act (CLRA), (2) the False Advertising Act, Business and Professions Code (FAL), and (3) the Unfair Competition Law California Business and Professions Code (UCL). Implied Pre-emption It should also be noted that FDCA regulations appear to directly preclude preemption here given the fact that all of Plaintiffs' causes of actions are for violations of California consumer protection laws; namely the CLRA, the FAL and the UCL. 21 C.F.R. Section 808.1(d)(1) provides that such state law claims alleging unfair trade practices in which the requirements are not limited to medical] devices are not preempted by the FDCA. Significantly, too, the Supreme Court agrees that the FDCA does not preempt state statutes of general applicability like those asserted herein. Lohr also makes it clear that the Section 510(k) clearance obtained by defendants does not somehow preempt state law consumer claims, stating that there is no suggestion in either the statutory scheme or the legislative process that said clearance process was intended to do anything to exclude the possibility that the manufacturer of the device would have to defend itself against such state-law claims. In Innovative Health Solutions, Inc. v. DyAnsys, Inc., 2015 WL 2398931 (N.D. Cal. May 19, 2015), under circumstances analogous to those involved here, the Northern District applied this reasoning to UCL and FAL claims, finding that "to the extent plaintiff alleges that defendants have false represented that they obtained FDA approval for their products, those claims are not precluded or preempted. The Defendant's Motion to Dismiss is denied on this point. Alleged Misrepresentations The Defendant also asserts that the FDA should in any event be permitted to resolve the question of whether, and to what extent, their alleged misrepresentations are indeed actionable. Defendant reasons that since it is the FDA who determined whether a medical device like Ultherapy is FDA approved or FDA cleared, it must determine just what those terms mean and further decide if Defendant misrepresented the FDA's imprimatur of its device. The gravamen of the Plaintiffs' claims is that Ulthera's FDA clearance, even if true, is improperly used to suggest that the product had the FDA's seal of approval, which it did not. As Plaintiffs point out, a claim that a business practice is fraudulent under the UCL, FAL, or CLRA can properly be based not only on patently untrue representations but also on representations that may be accurate on some level but nonetheless can mislead or deceive. Defendant's pleading challenge to the use of FDA-cleared in Ulthera's advertising thus fails. Moreover, since whether a business practice is deceptive is ordinarily a question of fact in any event, it would be a rare situation in which granting a motion like that presented here would be appropriate. Heightened Pleading Standards The Defendant next argues that since all of the Plaintiffs' allegations sound in fraud, they must satisfy the heightened pleading standard of Rule 9(b) applicable to fraud claims and fail to cite the particularized facts necessary to support their contention that they relied on any specific misrepresentations. To satisfy the requirements of Rule 9(b), averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged. The Plaintiffs' pleading survives scrutiny in this regard. Both named Plaintiffs allege that prior to purchasing Ultherapy they saw, and relied upon, the Defendants' advertising materials, including displays and brochures provided by the Defendants to authorized medical practices for distribution to consumers, and specifically relied on representations that Ultherapy was FDA approved. Both the Plaintiffs also identify the medical practices where they received their Ultherapy treatments and both state they received treatments in late 2015. Finally, both the Plaintiffs allege that FDA approval was important because they reasonably believed that the FDA's approval assured the safety and efficacy of the Ultherapy devices and procedure. Under these circumstances, the Plaintiffs have more than adequately identified the basis for their fraud-based claims such that Defendant can adequately respond to those claims. Defendant's request to dismiss the allegations of Plaintiffs' claim on that basis is therefore denied. Pre-Suit Notice Requirements The Plaintiffs' First Cause of Action alleges that Defendant's allegedly deceptive acts and practices violated the CLRA by failing to disclose and misrepresenting the true nature of the FDA's review of Ultherapy and its efficacy. Under the CLRA, a plaintiff must provide at least 30 days' notice of the particular alleged violations" of the CLRA and demand that the potential defendant correct, repair, replace or other rectify" the alleged violations before bringing a suit for damages. Here, while the Defendant concedes the Plaintiffs provided Defendants with notice of their alleged CLRA violations, they allege that the August 2017 notices failed to comply because they only vaguely referred to Defendant's advertisements, including social media ads and brochures stating that Ultherapy is FDA-cleared or FDA-approved. Defendant claims that because Plaintiffs failed to otherwise describe the alleged marketing materials with particularity, their notices did not comply with the CLRA's pre-suit notice requirements as to each alleged violation of the CLRA. Defendant makes this claim despite the fact that after receiving Defendant's August 30, 2017, response to Plaintiffs' CLRA notice letters, which alleged that Plaintiffs failed to sufficiently identify or provide copies of the marketing materials alleged to be in violation of the CLRA, Plaintiffs provided on September 22, 2017, copies of two specific examples of Ultherapy being advertised as FDA-approved. Although the provision of actual copies of the advertisements was less than 30 days prior to the September 30, 2017, date when Plaintiffs' lawsuit was filed, it supplemented the otherwise adequate notice which was provided during the requisite time period prior to the filing of the Complaint. In any event, the gravamen of Plaintiffs' allegations was clear from the notice letters themselves; namely, that Defendant misrepresented that the Ultherapy system had FDA approval, or gave the impression that the system had such approval in order to assure consumers it was safe and effective. Consequently, the letters adequately put Defendant on notice of the CLRA violations being asserted and satisfied the prerequisites for bringing suit in that regard. A full-text copy of the District Court's August 16, 2018 Memorandum and Order is available at https://tinyurl.com/y9neh2oz from Leagle.com. Georgia Tryan & Marilyn Echols, Plaintiffs, represented by Trish Kathleen Monesi -- Trisha.Monesi@CapstoneLawyers.com -- Capstone Law APC, Bevin Elaine Allen Pike -- Bevin.Pike@capstonelawyers.com -- Capstone Law APC & Robert Kenneth Friedl -- Friedl@CapstoneLawyers.com -- Capstone Law, APC. Merz North America, Inc., a Delaware Company, Defendant, represented by James F. Neale -- jneale@mcguirewoods.com -- McGuireWoods, LLP, pro hac vice, Arsen Kourinian -- akourinian@mcguirewoods.com -- McGuireWoods LLP, Bethany Gayle Lukitsch -- blukitsch@mcguirewoods.com -- McGuireWoods LLP & Molly M. White -- mwhite@mcguirewoods.com -- McGuireWoods LLP. UNITED PARCEL: Court Approves Hoffman-Na Roche Notice in FLSA Suit ------------------------------------------------------------------ Magistrate S. Kato Crews of the United States District Court for the District of Colorado issued a Report and Recommendation granting in part Plaintiffs' Motion to Approve Hoffman-La Roche Notice in the case captioned MICHAEL ORTEZ, individually and on behalf of all others similarly situated, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant. Civil Action No. 1:17-cv-01202-CMA-SKC. (D. Colo.). This matter is before the Court on the Motion to Approve Hoffmann-La Roche Notice to Potentially Aggrieved Employees (Hoffmann-La Roche Motion). In the Plaintiff's Second Amended Complaint, he brings a collective action against his former employer, United Parcel Service, Inc. (Defendant), under the Fair Labor Standards Act (FLSA). Plaintiff alleges that Defendant violated the FLSA by failing to pay him and other hourly, seasonal employees, the federal minimal wage for all hours they worked. Plaintiff also brings class action claims and two individual claims against Defendant under Colorado state law. Authorization of Hoffmann-La Roche Notice and Consent Forms Plaintiff requests the Court authorize Plaintiff's proposed Hoffmann-La Roche notice and consent forms. The Court has a duty to ensure that the notice adequately advises potential opt-in plaintiffs of their rights and options pertaining to any potential FLSA claims they may have. The Court has reviewed the Plaintiff's proposed notice and consent forms. The Court finds the proposed notice form adequately apprises potential opt-in plaintiffs of their rights and options. The consent form properly allows potential plaintiffs to join this action in the manner they deem appropriate. As such, the Court RECOMMENDS authorizing Plaintiff's dissemination of the Hoffmann-La Roche notice and consent forms to the potential opt-in plaintiffs, subject to revisions reflecting the Court's recommended conditional certification above, and updating the reference in Section 1 of ECF. #42-1 from Judge Hegarty to the undersigned Magistrate Judge. Personal Information of Potential Plaintiffs The Plaintiff's also request that Defendant produce the names, dates of employment, last known physical addresses, any foreign addresses, email addresses, and phone numbers of the putative plaintiffs no later than 14 days after issuing an order in favor of Plaintiff. A plaintiff seeking information about potential plaintiffs from a defendant must show why it is necessary to obtain the information. However, the Plaintiff has not satisfied the Court that it is necessary for the Defendant to produce telephone numbers of potential plaintiffs. Thus, absent further showing, the Court RECOMMENDS requiring Defendant to produce the names, dates of employment, last known physical addresses, and any foreign addresses of the individuals to whom Hoffmann-La Roche notice should be sent. The Court RECOMMENDS this production occur within 14 days from the final order on the Hoffman-LaRoche Motion. Plaintiff's Requested Opt-In Period and Leave for Reminder Notice The Plaintiff requests the Court order (1) that potential opt-in plaintiffs be given 120 days to file their Consent to Join forms, and (2) that the Plaintiffs be allowed to send a reminder to potential opt-in plaintiffs 45 days before the opt-in period ends. The Defendant does not address these requests. The Court RECOMMENDS the following: (1) the notices shall be sent within 14 days of disclosure by Defendant (2) the opt-in period will run 120 days from the date the first notice is given (3) the Plaintiff may also resend the approved notice and consent forms to potential plaintiffs a second time no later than 45 days before the end of the 120-day opt-in period. Plaintiff's Motion to Approve Hoffmann-La Roche Notice be GRANTED IN PART, as follows:a. Conditional certification of the class subject to the limitation that the proposed opt-in group include only those seasonal drivers who either (1) worked in the Centennial or Commerce City facilities, or (2) attended trainings at the Commerce City facility, from October 1, 2016 until the date of the final order on this Report and Recommendation; Plaintiff's notice and consent forms be approved subject to the notice being amended to accurately reflect the parameters of the group of potential opt-in plaintiffs as set out above, and update the Magistrate Judge reference; Within 14 days from the final order on this Report and Recommendation, Defendant shall produce the names, dates of employment, last known physical addresses, email addresses, and any foreign addresses of the individuals to whom notice should be sent; and, The Hoffmann-La Roche notice will be sent within 14 days of Defendant's above-disclosure; the opt-in period will run 120 days from the date the first notice is given; and Plaintiff may resend the approved notice and consent forms to potential plaintiffs a second time no later than 45 days before the end of the 120-day opt-in period. A full-text copy of the District Court's August 16, 2018 Report and Recommendation is available at https://tinyurl.com/yaeuu4jw from Leagle.com. Michael Ortez, individually, and on behalf of all others similarly situated, Plaintiff, represented by Adam Murdoch-Kitt Harrison, Sawaya Law Firm. United Parcel Service, Inc., an Ohio corporation, Defendant, represented by Amber J. Munck , Greenberg Traurig, LLP, Jonathan L. Sulds , Greenberg Traurig, LLP, Lindsay Nicole Uhl , Greenberg Traurig, LLP & Naomi G. Beer , Greenberg Traurig, LLP. UNITED STATES: Judge Certifies Class of Cambodian Refugees ---------------------------------------------------------- Martin Macias Jr., writing for Courthouse News Service, reported that a federal judge on Aug. 13 certified a class of Cambodian refugees who claim the federal government is infringing on their constitutional rights by unlawfully detaining them without proper notice and a chance to stand before a judge. In Oct. 2017, Immigration and Customs Enforcement launched a series of raids that swept up individuals of Cambodian descent who later were held in detention facilities. Many of them were born in refugee camps and had never set foot in Cambodia, according to advocates. With support from the firm Sidley Austin, and two California chapters of advocacy group Asian Americans Advancing Justice, detainees sued to stop any further detentions and filed a nationwide class action lawsuit to challenge their arrests. They claim the arrests are unlawful and deny detained Cambodians their due process rights. Advocates believe there are at least 1,900 Cambodians in the country who could be subject to detention and deportation by ICE. Many of them were released by ICE years ago, but could not be deported due to Cambodia refusing to accept them. U.S District Judge Cormac Carney said on Aug. 13 he would certify the class after adjusting the language of his order to ensure that class status doesn't extend to individuals who pose a danger to their communities. "I assume that some [members of the proposed class] are not perfect angels," Judge Carney said. "By certifying, am I impeding or making it difficult for the government to arrest class members if they need to?" Darlene Cho -- dcho@sidley.com -- of Sidley Austin said any injunctive relief would only prevent unlawful detention and deportation, not impede law enforcement. "We are not aware of any member who is a danger," Ms. Cho said, adding that plaintiff's counsel has not yet completed a comprehensive review of all 1,900 class members. ICE also detained Cambodians after regular check-ins with the agency. Many were lawful permanent residents with criminal records and had received deportation orders. After initially refusing to accept deportees into the country, the Cambodian government eventually agreed to issue them travel documents. Two of the plaintiffs representing the class, Nak Kim Chhouen and Mony Neth, were detained under those conditions. "I came to the United States when I was six years old as a refugee from the war. This is the only place I've ever known as home," Chhoeun said in a statement. Chhoeun and Neth were born to families that fled Cambodia to the United States to escape the Khmer Rouge, a brutal regime whose genocide killed over 2 million Cambodians between 1975 and 1979. Ms. Cho asked the court to acknowledge the more than 20 community members that attended the hearing in support of the class members. Judge Carney has taken a compassionate stance towards the proposed class members. He has said the federal government can't deport them without notice. He granted a temporary restraining order in Dec. 2017 to block the deportation of over 50 detained Cambodian refugees in order for them to challenge their deportation cases. Judge Carney said he was concerned about individuals with criminal records being included in the class. "I want to ensure that if there's an incident involving terrorism, that the government can move swiftly," he said. "Under extreme cases like terrorism, the government can find other grounds for detention," Ms. Cho said. Justice Department attorney Troy Liggett said he was concerned about individual class members being granted relief and then absconding from deportation proceedings. The federal government wants individuals transferred from criminal custody to immigrant detention to be excluded, Mr. Ligget said. "I share your concern," Judge Carney said. Jenny Zhao, staff attorney with Asian Americans Advancing Justice, said the proposed injunctive relief wouldn't prevent ICE or other law enforcement agencies from detaining anyone that committed a crime. [GN] UNITED STATES: Lewis and Clark County Joins PILT Class Action ------------------------------------------------------------- Thomas Plank, writing for Independent Record, reports that the Lewis and Clark County Commission decided on Aug. 14 to join 1,956 other counties in a class-action lawsuit to recover unpaid funds from the federal government. Payments in Lieu of Taxes, or PILT funds, are a way for the federal government to reimburse local and state governments for ownership or use of land within their boundaries. A lawsuit brought by King County, Utah led a court to find that the federal government had made a mistake in years past and had underpaid counties all over the United States due to an issue with a formula that decided reimbursement. The class-action lawsuit is a way to claim remaining funds from 2015-2017. All 56 counties in Montana receive some form of PILT funding. Lewis and Clark County receives nearly $2.5 million per year in PILT funding, which the federal government underpaid by $95,712, according to documents provided by Smith, Currie and Hancock LLP, the Washington, D.C. law firm in charge of the class-action suit. Lewis and Clark County is claiming the second-highest amount of any Montana county; only Flathead County is claiming more. However, officials noted that about one-third of the $95,712 claimed would be used to pay for legal fees, so the county would actually gain about $60,000. An email from Shantil Siaperas, the communications director for the Montana Association of Counties, explained that the genesis of the underfunding began 12 years ago when Congress failed to fund PILT, which led an Arizona county to bring a lawsuit against the federal government. Essentially, statutory funding was not written into congressional appropriations for PILT funds, which allowed King County, Utah to win a case and gain money it rightfully owned. Tri-Lakes Fire Chief Bob Drake made a public comment requesting that the county join in the class-action lawsuit. "Our district's population doubles every Friday night," Mr. Drake said. "It falls to local jurisdictions to take care of that." Commissioner Jim McCormick said he was "not a litigious person," but found it necessary to go forward with the suit "to put Lewis and Clark County on the list," to claim the unpaid PILT. Commissioner Susan Good-Giese pointed to recent incidents in the Bob Marshall Wilderness involving rescues that used county resources. "It would be remiss to walk away from money," Ms. Giese said. [GN] UNITYPOINT HEALTH: Class Action Amended to Cover Second Breach -------------------------------------------------------------- David Wahlberg, writing for WiscNews, reports that a class-action lawsuit against UnityPoint Health over a data breach reported this spring was amended on Aug. 13 to cover a second breach revealed in July. Four patients are named in the updated lawsuit. They are among 1.4 million people, including 76,000 in Wisconsin, who were notified July 30 that their names, addresses and medical information -- and, for some, driver's license, Social Security and payment card or bank account numbers -- may have been compromised. The plaintiffs include Yvonne Mart Fox, of Middleton, and Grant Nesheim, of Mazomanie. They were named in the original suit, filed in May in U.S. District Court in Madison after UnityPoint Health reported the first data breach in April. In that incident, notices were sent to 16,400 patients. The other plaintiffs named in the amended lawsuit are from Illinois and Iowa. Iowa-based UnityPoint Health owns Meriter Health Services in Madison, which includes Meriter Hospital. The health care organization declined comment on Aug. 13. In July, UnityPoint Health said emails disguised to appear like they came from an executive with the organization tricked employees into providing sign-in information, giving the attackers access to their accounts from March 14 to April 3. The provider said it discovered the problem May 31. It said it would offer free credit monitoring services for a year to people whose driver's license or Social Security number was involved. According to the amended lawsuit, Fox "is being harassed and inundated with unwanted, unsolicited, and unlawful spam and phishing emails and auto-dialed calls from unscrupulous operators." She and others "fear for their personal financial security and are experiencing feelings of rage and anger, anxiety, sleep disruption, stress, fear, and physical pain." Mr. Nesheim learned in July there had been a fraudulent attempt to open an unauthorized credit card in his name, the amended lawsuit says. He was so inundated with robocalls that he had to take on a new number for work calls, the lawsuit says. The updated lawsuit said UnityPoint Health told patients involved in the second data breach they could receive credit monitoring through Experian. Experian has allegedly had its own data breaches, harming millions of customers, the lawsuit says. UnityPoint Health has said it reset passwords for compromised accounts, conducted mandatory employee training about recognizing phishing emails and implemented multi-factor authentication in accessing systems, in an effort to prevent similar situations. [GN] US BANCORP: Faces Moret Suit FLSA Suit in Calif. ------------------------------------------------ Pedro Moret, individually and on behalf of others similarly situated v. U.S. Bancorp, U.S. Bank, NA, and Red Sky Risk Services, LLC, and Does 1-10, Case No. 5:18-cv-01612 (C.D. Calif., August 1, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act. The Pedro Moret resides in Riverside County, California. U.S. Bank hired him as a Staff Appraiser on or around 2010. He was affiliated with U.S. Bank’s Riverside office and worked in Orange, Riverside, and San Diego Counties while employed by Defendants. Defendants terminated him on or about December 15, 2017. The Defendant U.S. Bancorp is a Delaware corporation headquartered in Minneapolis, Minnesota that does business in and maintains offices in many states throughout the United States, including California. The Defendant U.S. Bank is a Delaware corporation headquartered in St. Paul, Minnesota that does business in and maintains offices in many states throughout the United States, including California. On information and belief, Defendant U.S. Bank is a subsidiary of Defendant U.S. Bancorp. The Defendant Red Sky Risk Services, LLC is a Delaware corporation headquartered in Minneapolis, Minnesota that does business in and maintains offices in many states throughout the United States, including California. On information and belief, Defendant Red Sky is a subsidiary of Defendant U.S. Bank. Red Sky is a valuation services company. [BN] The Plaintiff is represented by: Bryan J. Schwartz, Esq. Rachel M. Terp, Esq. DeCarol A. Davis, Esq. BRYAN SCHWARTZ LAW 1330 Broadway, Suite 1630 Oakland, CA 94612 Tel: (510) 444-9300 Fax: (510) 444-9301 E-mail: bryan@bryanschwartzlaw.com rachel@bryanschwartzlaw.com decarol@bryanschwartzlaw.com - and - Aashish Y. Desai, Esq. Adrianne De Castro, Esq. DESAI LAW FIRM, P.C. 3200 Bristol St., Suite 650 Costa Mesa, CA 92626 Tel: (949) 614-5830 Fax: (949) 271-4190 E-mail: aashish@desai-law.com adrianne@desai-law.com US XPRESS: Court Partly Grants Bid to Dismiss Morgan's TCPA Suit ---------------------------------------------------------------- Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia, Charlottesville Division, granted in part and denied in part the Defendant's motion to dismiss the case, CHRISTOPHER MORGAN, Plaintiff, v. U.S. XPRESS, INC., Defendant, Case No. 3:17-cv-00085 (W.D. Va.). The case arises under the Telephone Consumer Protection Act ("TCPA") which prohibits, among other things, the use of various types of prerecorded calls. The Defendant is a Nevada trucking company headquartered in Tennessee. The Plaintiff, Virginia resident Morgan, alleges th Defendant used prerecorded calls to recruit him to become a truck driver. Importantly, he allegedly received these calls on a residential, cellular telephone line. The Plaintiff filed the putative class action in response. Count One of the complaint alleges that the Defendant violated the TCPA by calling the Plaintiff's residential telephone line. Count Two alleges Defendant violated the TCPA by calling his cellular telephone line. Both counts arise out of the same calls to the Plaintiff's cell phone, which he labels a residential, cellular telephone line. The Plaintiff argues the same calls can give rise to both Counts. The Defendant disagrees, and argues that calls made to a cell phone, even when used at home, are not calls made to residential telephone lines. The Defendant has moved to dismiss these two portions of the complaint. Judge Moon holds that the structure and language of the TCPA demonstrate that calls made to a cell phone are not calls made to a residential telephone line, and so Count One will be dismissed. The Plaintiff's characterization of the cell phone as a residential, cellular telephone line is not determinative of this question. These are not factual allegations, but legal terms drawn from the operative statute. In the second portion of its motion, the Defendant argues that it is not subject to personal jurisdiction as to non-Virginia resident class members' claims. The Judge is reluctant to believe that the Supreme Court's straightforward application of settled principles of personal jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. requires a substantial limiting of that valuable tool. Accordingly, he will not rush to carry that case beyond its holding and logic, and so will deny this aspect of the Defendant's motion to dismiss. Judge Moon concludes that the Plaintiff's failure to plausibly allege the calls were made to a residential telephone line within the meaning of the relevant section of the TCPA dooms Count One. But he will deny the motion to dismiss the claims of putative nonresident class members because the Court has personal jurisdiction over the Defendant as to their claims. For these reasons, the motion to dismiss is granted only in part. An appropriate order will issue. The Clerk of Court is requested to send a copy of the Opinion and the accompanying Order to the parties. A full-text copy of the Court's July 25, 2018 Memorandum Opinion is available at https://is.gd/F3PXjH from Leagle.com. Christopher Morgan, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff, represented by Michael Brian Hissam -- mhissam@baileyglasser.com -- Bailey & Glasser L.L.P. & Ryan McCune Donovan, Bailey & Glasser L.L.P., pro hac vice. U.S. Xpress, Inc., Defendant, represented by John Curtis Lynch -- john.lynch@troutman.com -- TROUTMAN SANDERS LLP & David Michael Gettings -- dave.gettings@troutman.com -- Troutman Sanders LLP. VITALE'S III: Nyitray Files Suit Over Unpaid Wages --------------------------------------------------- David L. Nyitray III and Isea Marichalar, individually and on behalf of all others similarly situated v. Vitale's III of Allegan, LLC, Franco La Franca, Agostino LaFranca, Roberto Leonardi and Dave Tinwalde, Case No. 1:18-cv-00846 (W.D. Mich., August 1, 2018), is brought against the Defendants for failure to pay minimum and overtime wages in violation of the Fair Labor Standards Act. The Plaintiff David L. Nyitray III worked as driver and cook for the Defendants Vitale's, Leonardi, and Tinwalde from March 2015 to December 2015 ("Term 1"), January 2016 to April 2017 ("Term 2"), and February 2018 to present ("Term 3"). The Plaintiff Marichalar worked as driver and cook for the Defendants Vitale's, Leonardi, and Defendant from approximately 2016 to 2017. The Defendants own and operate Vitale's an Italian restaurant serving pizza, pasta, and other such Italian cuisine. The Defendants' principal place of business is located at 320 Western Ave. Allegan MI 49010. [BN] The Plaintiffs are represented by: Robert Anthony Alvarez, Esq. Agustin Henriquez, Esq. AVANTI LAW GROUP, PLLC 600 28th St. SW Wyoming, MI 49509 Grand Rapids, MI 49503 Tel: (616) 257-6807 Email: ralvarez@avantilaw.com VUZIX CORP: Faces Two Purported Class Suits in New York ------------------------------------------------------- Vuzix Corporation 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 is facing two purported class action lawsuits in New York. On July 24, 2018, a purported shareholder class action lawsuit was filed in the United States District Court, Southern District of New York, against the Company, certain of its current and former directors and executive officers and the placement agents of the Company's registered direct offering that was completed in January 2018. The complaint alleges violations of federal securities laws under Sections 11 and 15 of the Securities Act and under Sections 10(b) and 20(a) of the Exchange Act on behalf of a putative class of shareholders that purchased stock between November 9, 2017 and March 20, 2018, or pursuant and/or traceable to the Company's registration statement and prospectus filed in connection with the registered direct offering. The complaint alleges that the Company and certain of its officers and directors made materially false and/or misleading statements and failed to disclose material adverse events about the Company's business, operations and prospects in press releases and public filings. The complaint seeks damages in unspecified amounts, costs and expenses of bringing the action, and other unspecified relief. A similar purported class action was filed against the Company and certain of its current and former executive officers and directors on July 27, 2018, in the United States District Court, Southern District of New York. The Company believes the allegations are false and intends to vigorously defend itself. The Company plans to file a motion to dismiss the complaints. Vuzix Corporation designs, manufactures, markets, and sells wearable display devices in the United States and internationally. Vuzix Corporation was founded in 1997 and is headquartered in West Henrietta, New York. WAL-MART STORES: Court Narrows Claims in Pita Chips Suit -------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Defendant's Motion to Dismiss the case captioned ERIN TERRAZZINO, on behalf of herself and others similarly situated, Plaintiff, v. WAL-MART STORES, INC., Defendant. No. 17-cv-01731. (N.D Ill.). Presently before the Court is Walmart's motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6). Plaintiff Erin Terrazzino purchased a bag of Great Value All Natural Pita Chips (Pita Chips) from Defendant Wal-Mart Stores, Inc.'s (Walmart) website. Terrazzino alleges that despite the fact that the Pita Chips were prominently branded as All Natural, the product contained a variety of synthetic, artificial, and heavily-processed ingredients. Consequently, Terrazzino has filed this lawsuit alleging that Walmart's representation of the Pita Chips as All Natural was false, misleading, and deceptive. Terrazzino's complaint alleges common law claims for breach of express warranty (Count I) and unjust enrichment (Count II) on behalf of the National Class, and violations of the Illinois Consumer Fraud and Deceptive Practices Act (ICFA) on behalf of the Illinois Class (Count III). Rule 12(b)(1) Motion to Dismiss for Lack of Standing Walmart first argues that Terrazzino lacks standing to assert claims premised on the laws of states other than Illinois and therefore any such claims must be dismissed. Specifically, Walmart contends that because Terrazzino claims no injuries in any state other than Illinois, she has no standing to pursue statutory causes of action under the laws of any other state. Terrazzino counters that this argument is premature. To establish standing, a plaintiff must demonstrate: (1) that [the plaintiff has] suffered an injury in fact (2) that is fairly traceable to the action of the defendant and (3) that will likely be redressed with a favorable decision. To demonstrate an injury in fact, the plaintiff must allege that she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Terrazzino claims that because of Walmart's false, misleading, and deceptive representations and omissions, she was injured in a number of ways, including being deprived of the benefit of the bargain because the product she purchased was different from what Walmart represented. Terrazzino thus has alleged a concrete and particularized injury, and she has constitutional standing to pursue her claim. The standing issues highlighted by Walmart are solely the product of Terrazzino's attempt to represent a national class. What Walmart really contests is Terrazzino's ability to represent the class, and that issue is best addressed at the class certification stage. The Court therefore denies the motion to dismiss for lack of standing. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Federal Rule of Civil Procedure 8(a) requires a complaint to contain a short and plain statement of the claim showing that the pleader is entitled to relief. To survive a Rule 12(b)(6) motion, the short and plain statement must meet two threshold requirements. First, the complaint's factual allegations must be sufficient to give the defendant fair notice of the claim and the grounds upon which it rests. ICFA Claim To state an ICFA claim, Terrazzino must allege: (1) a deceptive act or practice by Walmart, (2) that the deceptive act or practice occurred in the course of conduct involving trade or commerce, (3) that Walmart intended that Terrazzino rely on the deception, and (4) that the deception caused Terrazzino actual damages. Deceptive Act or Practice Walmart argues that there was no deception here because the Pita Chips' label disclosed all of the ingredients about which Terrazzino complains specifically, enriched wheat flour and its constituent parts. In Ibarrola v. Kind, LLC, 83 F.Supp.3d 751 (N.D. Ill. 2015), as instructive on this point, the plaintiff alleged that the defendant's product packaging was deceptive because it stated that the product contained no refined sugars when in fact the product contained evaporated cane juice and molasses. The Ibarrola court held that to arrive at a reasonable understanding of no refined sugars, the plaintiff should have considered the ingredient label on the back of the package, which notified the consumer that the product contained evaporated cane juice and molasses. Here, in contrast, Terrazzino does not allege that she read the ingredient label. Further, Terrazzino purchased the Pita Chips through Walmart's website, rather than at a physical store. Terrazzino claims in her response to the motion to dismiss that it was not only possible to purchase the Pita Chips without reading the ingredient lists, but that Walmart made it fairly inconvenient and even arduous to access the ingredient list. At the pleading stage, the Court has no basis to doubt this assertion. In contrast, the plaintiff in Ibarrola only had to flip over the package to learn more about the ingredients contained in the product. As the ingredients were arguably much more difficult to ascertain here than in Ibarrola and Terrazzino has not alleged that she actually read the ingredient label for the Pita Chips, Ibarrola's reasoning has little application here. The Court declines to dismiss Terrazzino's complaint simply because an ingredient list was included on the website selling the product. Actual Damages Walmart also contends that Terrazzino's ICFA claim fails because she has not plausibly alleged an injury. To plead an ICFA claim adequately, a plaintiff must allege actual damages. In Camasta, 761 F.3d 732, the Seventh Circuit held that the plaintiff's assertion that he could have shopped around and obtained a better price in the marketplace was insufficient to support a claim of actual damages under the ICFA. Here, in contrast, Terrazzino's case rests on a misrepresentation regarding the quality of the product she purchased. Terrazzino does not need to rely solely on price to demonstrate that the product was inferior instead she can, and does, rely on the fact that the product was not All Natural. Because Camasta concern comparative price deception, and this case involves product quality deception, the standard for alleging damages differs. Terrazzino was not required to shop around for other pita chips in order to prove that the product was not worth what she paid for it. Instead, Terrazzino's allegation that she paid more for the Pita Chips because they were labeled as All Natural, and further that she would not have bought the Pita Chips if she had known that they were not, in fact, All Natural, is sufficient to allege actual damages. Proximate Cause Walmart also argues that the ICFA claim fails because Terrazzino has not adequately alleged causation. To properly plead the element of proximate causation in a private cause of action for deceptive advertising brought under the ICFA, a plaintiff must allege that he was, in some manner, deceived. Terrazzino has alleged that Walmart's labeling of the Pita Chips as All Natural was deceptive because the Pita Chips were not, in fact, All Natural.Terrazzino further has alleged that this deceptive act induced her to pay more for the chips than they were worth and that she would not have bought the chips but for the deceptive act. This is sufficient to plead the element of proximate cause. Whether the ICFA Claim is Actually a Restated Breach of Contract Claim Breach of Warranty Claim Walmart also contends that Terrazzino fails to plead a breach of warranty claim adequately because she has not alleged pre-suit notice. Under Section 2-607 of the Uniform Commercial Code (UCC), a buyer alleging a breach of warranty must notify the seller of the breach within a reasonable time after she discovers it or else she is barred from any remedy. Nowhere in the complaint does Terrazzino allege that Walmart had actual knowledge that its Pita Chips were not all natural. Terrazzino only makes two allegations as to Walmart's knowledge. First, she alleges that Walmart knew that consumers would purchase the Pita Chips because they were labeled All Natural and pass over similar products that were not so labeled. And second, she alleges that Walmart knew consumers bought the Pita Chips with the expectation that they would be free of any artificial or synthetic ingredients. Neither of these allegations is sufficient to state a claim of Walmart's actual knowledge that its product contained a defect, namely, that its Pita Chips were not all natural. Because Terrazzino failed to provide pre-suit notice and has not demonstrated an applicable exception, her breach of warranty claim (Count I) is dismissed without prejudice. Unjust Enrichment Walmart argues that Terrazzino's unjust enrichment claim should be dismissed because it is simply a restated breach of contract claim. But unjust enrichment is based on an implied contract, where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application. The Federal Rules of Civil Procedure allow pleading of alternative statements of a claim. And Terrazzino is entitled to plead unjust enrichment as an alternative to her breach of contract claim. Walmart's motion to dismiss the unjust enrichment claim is denied. Walmart's motion to dismiss is granted in part and denied in part. Specifically, the motion is granted with respect to Terrazino's claim for breach of express warranty in Count I and her request for injunctive relief; those claims are dismissed without prejudice. The motion to dismiss is otherwise denied. A full-text copy of the District Court's August 16, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yas6u94k from Leagle.com. Erin Terrazzino, on behalf of herself and all others similarly situated, Plaintiff, represented by Catherine P. Sons , Law Office of James X. Bormes, P.C., Frank B. Castiglione , The Khowaja Law Firm, LLC, James X. Bormes , Law Office of James X. Bormes, Thomas Michael Ryan , Law Offices of Thomas Ryan & Kasif Khowaja , The Khowaja Law, LLC. Wal-mart Stores Inc, Defendant, represented by Francis A. Citera -- citeraf@gtlaw.com -- Greenberg Traurig, LLP. & Brian D. Straw -- strawb@gtlaw.com -- Greenberg Traurig, Llp. WASHINGTON: Denial of Class Certification in Suit vs. DRS Flipped ----------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, reversed the District Court's judgment denying the Stipulated Motion to Certify Class in the case captioned MICKEY FOWLER; LEISA MAURER, and a class of similarly situated individuals, Plaintiffs-Appellants, v. TRACY GUERIN, Director of the Washington State Department of Retirement Systems, Defendant-Appellee. No. 16-35052. (9th Cir.). The district court denied the stipulated motion to certify a class and then dismissed the action as prudentially unripe. Washington public school teachers Mickey Fowler and Leisa Maurer bring this class action to order the Director of the Washington State Department of Retirement Systems (DRS) to return interest that was allegedly skimmed from their state-managed retirement accounts. The parties filed a stipulated motion to certify a class of all active and retired members of the Teachers' Retirement System who had transferred from Plan 2 to Plan 3 before January 20, 2002. The district court denied the stipulated motion without prejudice, concluding that the parties' explanation was not detailed enough for the court to fulfill its independent responsibility to ensure that the requirements of Rule 23 were met. The district court then granted the Director's motion for summary judgment, concluding that this case was prudentially unripe pending the conclusion of DRS's new interest calculation rulemaking. The Teachers timely appealed. The first question presented is whether the Teachers' takings claim is prudentially unripe. The district court held that the Teachers' claim was unripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Williamson Countysets forth two prudential hurdles for takings claims. First, a takings claim is unripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the challenged regulations to the property at issue. Second, the plaintiff must have sought and been denied compensation through the procedures the State has provided. Here, the Teachers bring a per se taking claim because DRS's withholding of interest earned on funds in interest-bearing accounts is a direct appropriation of private property. The Supreme Court addressed this issue in a pair of cases concerning states' Interest on Lawyers' Trust Account (IOLTA) programs. First, in Phillips v. Washington Legal Foundation, the Court held that the interest income generated by funds held in IOLTA accounts is the 'private property' of the owner of the principal. 524 U.S. 156, 172 (1998). Then in Brown v. Legal Foundation of Washington, the Court held that the law requiring interest on those funds to be transferred to a third party is evaluated not as a regulatory taking, but as a per se taking. 538 U.S. at 235. As a result, DRS's withholding of the interest accrued on the Teachers' accounts constitutes a per se taking to which Williamson County's prudential ripeness test does not apply. The district court erred in dismissing the Teachers' takings claim as prudentially unripe. The Director argues that the Teachers' takings claim fails on its merits because there has been no taking of private property here. In the state-court litigation, the Washington Court of Appeals held that the state statutory scheme does not require the DRS to pay daily interest. The Director asserts that there can be no federal takings claim without this state-law property right. The Court rejected a similar argument in Schneider v. California Department of Corrections, 151 F.3d 1194 (9th Cir. 1998). There the Court observed that constitutionally protected property rights can and often do exist despite statutes that appear to deny their existence. Citing the Supreme Court's opinion in Phillips, the Court noted that a State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law. The Court then held that there is a core notion of constitutionally protected property into which state regulation simply may not intrude without prompting Takings Clause scrutiny. This core is defined by reference to traditional background principles of property law. In that case, the Court concluded that interest income earned on an interest-bearing account falls within this class of fundamental property rights. The Court holds that the Teachers state a takings claim for daily interest withheld by DRS. Next, the Director contends that the Teachers' claim is barred by two related doctrines: issue preclusion and Rooker-Feldman. According to the Director, the Washington Court of Appeals has already adjudicated two issues on which the Teachers' takings claim depends: whether the Teachers are entitled to daily interest, and whether their takings claim is premature. The Director also argues that the Teachers now seek both a direct and de facto appeal of the state court's decisions on these issues. The Court disagrees. The Washington Court of Appeals' first decision expressly declined to reach the merits of the Teachers' constitutional takings claim. Its discussion of the Teachers' entitlement to daily interest turned solely on an issue of Washington statutory law, not federal constitutional law. And the state court's subsequent decision did not decide the issues before the Court either. It found premature only the Teachers' speculation that the forthcoming DRS rule-making would effect a taking, not their argument here that DRS effected a taking by retaining some of their earned interest years ago. No state-court judgment resolved the precise issues presented in this case, and the Teachers do not complain of any error by the state court or seek relief from the state court's judgments. The Teachers' takings claim is not barred by issue preclusion or by the Rooker-Feldman doctrine. The Director contends that the Teachers' takings claim is foreclosed by the Eleventh Amendment. In the Director's view, the Teachers seek monetary damages, which would mean that the State is the real party in interest and that a money award would impermissibly be paid from the State's treasury. But as the Director previously has conceded, and as the Teachers' complaint plainly shows, the Teachers actually seek an injunction ordering the Director to return savings taken from them. Rather than requiring payment of funds from the State's treasury, this relief will likely involve applying a computerized formula to DRS electronic records to determine the amount of interest that should be moved to the class members In sum, none of the Director's alternative arguments justifies the district court's grant of summary judgment in this case. The district court denied the stipulated motion based on its concern that a Rule 23(b)(2) class would be inappropriate here. As the district court pointed out, Rule 23(b)(2) does not authorize the class certification of monetary claims. But as explained above, the Teachers do not bring a claim requiring individualized determinations of eligibility for damages. The Teachers instead seek an injunction ordering the Director to apply a single formula to DRS's electronic records to correct the amount of interest credited to class members' accounts. The district court erred in denying the motion for class certification on the ground that the Teachers' claim for an indivisible injunction benefitting all its members at once was really one for individualized monetary damages. The claim can be certified for class treatment under Rule 23(b)(2) because the relief of correcting the entire records system for the class member accounts is in the nature of injunctive relief. A full-text copy of the Ninth Circuit's August 16, 2018 Opinion is available at https://tinyurl.com/yc69adfa from Leagle.com. Stephen K. Festor -- skfestor@bs-s.com -- (argued), Stephen K. Strong -- skstrong@bs-s.com -- David F. Stobaugh -- davidfstobaugh@bs-s.com -- and Alexander F. Strong -- astrong@bs-s.com -- Bendich Stobaugh & Strong P.C., Seattle, Washington, for Plaintiffs-Appellants. Jeffrey A.O. Freimund -- jefff@fjtlaw.com -- (argued) and Michael E. Tardif -- miket@fjtlaw.com -- Freimund Jackson & Tardif PLLC, Olympia, Washington, for Defendant-Appellee. WEXLER DERMATOLOGY: Violates Disabilities Act, Picon Suit Says -------------------------------------------------------------- A class action lawsuit has been filed against Wexler Dermatology, P.C. The case is styled as YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED v. WEXLER DERMATOLOGY, P.C., Case No. 1:18-cv-07949 (S.D.N.Y., August 30, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Wexler Dermatology, P.C., is a privately held company in New York. The Company's dermatology center is located at 145 East 32nd St., in New York City. The Company, headed by Dr. Patricia Wexler, provides various dermatologic services and procedures, including acne treatment, arm rejuvenation and other cosmetic procedures.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com WILLIAMS & FUDGE: Violates Fair Debt Collection Act, Joseph Says ---------------------------------------------------------------- A class action lawsuit has been filed against Williams & Fudge, Inc. The case is titled as Judeline S. Joseph, individually and on behalf of all others similarly situated v. Williams & Fudge, Inc., Case No. 1:18-cv-04948 (E.D.N.Y., August 30, 2018). The lawsuit arises from alleged violations of the Fair Debt Collection Practices Act. Williams & Fudge, Inc., provides financial services. The Company offers tuition, institutional, health profession, nursing, private education loans, and other miscellaneous receivables.[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 YELP INC: Continues to Defend California Class Action ----------------------------------------------------- Yelp 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 continues to defend itself in a putative class action lawsuit filed in the U.S. District Court for the Northern District of California. In January 2018, a putative class action lawsuit alleging violations of the federal securities laws was filed in the U.S. District Court for the Northern District of California, naming as defendants us and certain of our officers. The complaint, which the plaintiff amended on June 25, 2018, alleges violations of the Exchange Act by the company and its officers for allegedly making materially false and misleading statements regarding the company's business and operations on February 9, 2017. The plaintiff seeks unspecified monetary damages and other relief. No further updates were provided in the Company's SEC report. Yelp Inc. operates a platform that connects people with local businesses in the United States, Canada, and internationally. The company's platform covers various local business categories, including restaurants, shopping, beauty and fitness, arts, entertainment and events, home and local services, health, nightlife, travel and hotel, auto, and others. Yelp Inc. was founded in 2004 and is headquartered in San Francisco, California. [*] JND Legal Administration Acquires Lien Resolution Group ----------------------------------------------------------- JND Legal Administration, founded by some of the nation's most experienced legal settlement administrators, on Sept. 5 announced the acquisition of Lien Resolution Group, a leading consulting company providing settlement solutions to law firms and corporate entities dealing with client healthcare liens. As a part of the acquisition, Lien Resolution Group's Managing Director Rachel Stoering will join the JND team as chief operating officer -- class action, mass tort & lien resolution. The acquisition complements JND's existing footprint, providing first class, end-to-end mass tort settlement solutions. "The acquisition of Lien Resolution Group completed the missing piece to our mass tort puzzle," commented Jennifer Keough, JND Legal Administration's chief executive officer and founder. "Having Rachel Stoering join our team will enhance our services in ways beyond liens and serve as a tremendous advantage to our clients." "JND is transforming the settlement administration industry," said Ms. Stoering. "The companies' combined experience makes us a powerful resource in the mass tort space, providing our clients with the most advanced settlement administration solutions available." Ms. Stoering further added, "What drew me to JND is that the company from the top down includes some of the industry's best minds and finest talent. Right now, JND is the leading player in the Legal Administration landscape and I am thrilled to be joining the JND team." Ms. Stoering joins JND with a strong background in both lien resolution and legal administration. Prior to her tenure at Lien Resolution Group, she oversaw class action operations at a claims administration firm after working in private practice as an attorney at Heins Mills & Olson PLC. By combining JND's commitment to provide full service settlement solutions with Rachel's expertise, JND has set a new benchmark for service line offerings in the legal administration industry. About JND Legal Administration JND Legal Administration -- http://www.JNDLA.com-- is a legal management and administration company led by a team of industry veterans who are passionate about providing superior service to clients. Armed with decades of expertise and a powerful set of tools, JND has deep experience expertly navigating the intricacies of multiple, intersecting service lines, including class action settlements, corporate restructuring, e-discovery, mass tort claims & lien resolution and government services. JND is trusted by law firms, government agencies and Fortune 500 companies across the nation. The company is backed by Stone Point Capital and has offices in California, Colorado, Minnesota, New York, Washington and Washington, D.C. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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