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C L A S S A C T I O N R E P O R T E R
Thursday, October 4, 2018, Vol. 20, No. 199
Headlines
ACUTE DIALYSIS: Fails to Pay Wages & OT, Tandoc & Sarmiento Claim
ADOBE SYSTEMS: Court Tosses Injunctive Relief Claims in ACCP Suit
ALLIED INTERNATIONAL: Pena Files FDCPA Suit in E.D. New York
AMERICAN AIRLINES: Judge Dismisses Class Action For Now
AMERICAN HOMEPATIENT: Kruss Suit Asserts Breach of Fiduciary Duty
AMIN SHAMSUDDIN VIRANI: Alam Suit Seeks to Recover Unpaid OT Wages
AMSHER COLLECTION: Alvarado Files FDCPA Suit in E.D. New York
ANHEUSER-BUSCH: Prelim Approval of Atty Fees in Knowlton Denied
AR RESOURCES: Removes Worley Suit to E.D. Missouri
AWESOMENES ST: Workman & Zucker Sue over Minimum & OT Wages
B F T LP: AMP Partial Summary Judgment Bid on EBR Defense Granted
B F T LP: Court Refuses to Certify Class in AMP TCPA Suit
BAIN CAPITAL: Gamco Asset Sues over iHeartMedia Restructuring
BEN EVANS: Fails to Pay Minimum & OT Wages, Garcia et al. Say
BISSELL INC: Kiler Files ADA Suit in E.D. New York
BYPASS GRILL HOUSE: Demyers Labor Suit to Recover Unpaid OT Wages
CAL WEST AG: Settlement in Mora Suit Has Preliminary Approval
CALAMOS ASSET: Travelers Sues to Deny Liability Coverage
CENTURYLINK COMMS: Prelim OK of Deal with Ariz. Landowners Denied
CHARLES SCHWAB: Appeal in Total Bond Market Fund Lawsuit Pending
CHIPOTLE MEXICAN: Judge Revives Fight Over "G-M-Over It" Ad
COLA-COLA: Nelson Files Product Liability Suit in S.D. California
COLUMBIA GAS: Kyros Law Files Class Action Lawsuit
COMPASS GROUP USA: Denied Johnson OT Pay for Off-the-Clock Work
CONCORDE CAREER: Sullivan Files ADA Suit in S.D. New York
CRAFT BREW: Class Certification Order Redacted
CRONOS GROUP: Pomerantz Law Files Class Action
DARP INC: Fochtman et al. Seek to Certify Class in Labor Suit
DAVIS, CA: Ignacio Files Suit Under Fair Housing Act
DR PEPPER: 3rd Amended Becerra Suit Dismissed
DTG OPERATIONS: $175K Attys' Fees Awarded in Bendon Suit
EASTERN BANK: Faces Suit over Unlawful Post-Repossession Notices
EDR ASSETS: Court Denies Bid to Dismiss Hess Class Suit
EKIMOTO & MORRIS: Court Strikes 4th Amended Connelly Suit
EROS INT'L: 2nd Cir. Affirms Dismissal of Amended Eisner Suit
ESTERO BAY HOTEL: Honeywell Files ADA Suit in M.D. Florida
EXPRESS SCRIPTS: Olsavsky Files Suit in W.D. Pennsylvania
FIAT CHRYSLER: Hightman Files Product Liability Suit in S.D. Calif.
FLORIDA BC: Ward Seeks to Certify Two Employee Classes
GALENA BIOPHARMA: Amended Securities Suit Dismissed
GEICO INSURANCE: Removes Nichols Case to W.D. Washington
GENCO SHIPPING: Time to Appeal Baltic Trading Case Dismissal Ends
GET TOGETHER: Mellichamp Sues Over Illegal SMS Ad Blasts
GOGO INC: Pierrelouis Class Action Underway in Illinois
GROUPON INC: Removes Arliss and Lawrie Suit to S.D. California
H&H FRANCHISING: Can Compel Arbitration in Geiger FLSA Suit
HALLIBURTON CO: LeBlanc Class of Drillers Conditionally Certified
HANNAM CHAIN: Fails to Pay Minimum & Overtime, Lopez et al. Claim
HC2 HOLDINGS: Parties Still Exploring Schuff Litigation Settlement
HC2 HOLDINGS: Settlement Agreement Underway in CGI Producer Suit
HEALTH ADVOCATES: Bogdanyi Files Labor Suit in Cal. Super. Ct.
HEALTHCARE REVENUE: Court Partly Vacates Dismissal of Levins Suit
HEARST COMMUNICATIONS: Lachapelle Files Fraud Class Action
HERC HOLDINGS: Plaintiffs' Appeal in Securities Suit Still Pending
HESKA CORP: Class Suit over Unauthorized Faxes Underway
HORIZON PHARMA: Schaffer Plaintiffs Drop Appeal, End Lawsuit
ICONIX BRAND: Still Awaiting Court OK on Bid to Dismiss N.Y. Suit
IKEA NORTH AMERICA: Gorbeck Alleges Age and Gender Discrimination
INTERACTIVE BROKERS: Still Defends Class Lawsuit in Connecticut
INVESTMENT TECH: Records $18M Payable to Class Members at June 30
ITG INC: Dismissal of Mauthe Class Certification Bid Sought
JETBLUE AIRWAYS: Fails to Pay Proper Wages, Sanchez Suit Claims
K12 INC: Class Certification Bid Pending in Calif. Securities Suit
KELLOGG SALES: Court Partly Grants Bid to Certify Hadley Class
KINDERCARE EDUCATION: Fails to Pay Proper OT, Gonzalez Claims
KNIGHT-SWIFT TRANSPORT: "Slack" Settlement Release Disputed
KNIGHT-SWIFT TRANSPORT: Contractor Misclassification Suit Pending
KNIGHT-SWIFT TRANSPORT: Reaches Tentative Pact in 5 Class Actions
LARAMEE'S CLEANERS: Denied Payment of Overtime Wages, Park Says
LENDINGCLUB CORP: Calif. Securities Case Settlement Approved
LENDINGCLUB CORP: Nov. 2018 Hearing on FTC-Related Class Suits
LENDINGCLUB CORP: Still Faces Moses Class Action in Nevada
LHC Group: Bledsoe Seeks Unpaid Overtime Wages, Damages
LIEN ENFORCEMENT: Augustine Sues Over Illegal Collection Calls
MAMMOTH ENERGY: Putative Class Action in Puerto Rico Underway
MARICOPA COUNTY, AZ: Reply to Bid to Enforce in Graves Struck
MCNEELY LAW: Mona Sues Over Vague Collection Letter
MDL 2617: $31MM Attorneys' Fees Awarded to Class Counsel
MDL 2656: Court Grants Settlement Notice Program
MEDICREDIT INC: Austin Sues Over Illegal Collection Calls
MERCED, CA: Firefighters File Suit Over Unpaid Wages, Seek Damages
MICHIGAN: Court Certifies Class of Jewish Inmates
MODA TRANS: Fails to Pay Overtime & Minimum Wages, Medina Says
MONDELEZ INT'L: Claims in 1st Amended McMorrow Suit Narrowed
MOVING RIGHT: Fails to Pay OT to Drivers, Angerosa Suit Claims
MYHERITAGE LTD: Hall Files Suit Over Data Breach
MYLAN NV: Bid to Nix 2nd Amended N.Y. Securities Suit Pending
MYLAN NV: EpiPen(R) Auto-Injector Civil Litigation Still Pending
MYLAN NV: IEC Fund Action in Tel Aviv District Court Still Stayed
MYLAN NV: Still Faces Antitrust Lawsuits over Various Products
NAKATO SC: Court Conditionally Certifies Class in Pointer Suit
NATUS MEDICAL: Costabile Suit Underway in N.D. California
NEXSTAR MEDIA: Antitrust Class Suit on Advertising Sales Underway
NICOR ENERGY: Pyles Suit Moved to Indiana Southern District
NISSAN NORTH: Gann Files Fraud Class Suit in M.D. Tennessee
NOBLE HOUSE: Partly Compelled to Reply to Holt Discovery Requests
NOREEN ROTHMAN: Stephen Lamont's Class Suit Stays in California
NOVAN INC: Bid to Dismiss Consolidated Securities Lawsuit Pending
OMEGA HEALTHCARE: Still Defends Consolidated Class Action
OPKO HEALTH: Kerznowski Hits Share Price Drop Over Pump-Dump Scheme
OREMOR OF GLENDALE: Underpays Salespersons, Valtierra Suit Claims
OREXIGEN THERAPEUTICS: Pepper Hamilton Attorney Discusses Ruling
ORMAT TECHNOLOGIES: Israeli Securities Class Action Still Pending
ORMAT TECHNOLOGIES: PGV Still Faces Suit on Alleged Toxic Release
ORMAT TECHNOLOGIES: Riche Class Action vs. USG Still Pending
ORMAT TECHNOLOGIES: Securities Class Action in Nevada Underway
OSIRIS THERAPEUTICS: Accrues $18.5M "Nallagonda" Costs at June 30
PARCEL PENDING: Swigart Files Personal Injury Suit in S.D. Calif.
PERFORMANCE FOOD: Snellgrove's Restaurant Sues over Fuel Charges
PFIZER INC: MSP Alleges Price- Fixing of Lipitor
PHILIP MORRIS: Robbins Geller Files Securities Class Action
PHILLIPS FEED: Slade Files ADA Suit in S.D. New York
PHOENIX, AZ: ACLU Sues Police Over 2017 Trump Rally Response
PLUMBERS INC: Eric Christian Seeks Unpaid Wages under Labor Code
POLARIS CLEANERS: Rivera Files FLSA Suit in S.D. New York
POSTMATES INC: Misclassifies Drivers, Santana Claims
POTBELLY CORP: Still Faces Assistant Managers' Class Suit in N.Y.
PROVIDENCE COMMUNITY: Court Reaffirms Dismissal of Brinson Suit
PUTNAM INVESTMENTS: Seyfarth Shaw Attorney Discusses Ruling
REALPAGE INC: McIntyre Sues Over Erroneous Credit Report
RECKITT BENCKISER: Sims Files Fraud Class Suit in N.D. Illinois
REPUBLIC WASTE: Court Narrows Claims in Manny's Uptown Suit
RESIDENCE INN: Fails to Pay Proper Wages, Arias Suit Alleges
RESURGENT CAPITAL: Mack Sues over Debt Collection Practices
ROBERT BOSCH: Faces Anti-Racketeering Suit Over Fuel Pumps
ROYAL HOSPITALITY: Fails to Pay Minimum & OT Wages, Nieto Says
S.T.E.P. INC: Faces Garcia Suit in California Superior Court
SAFEWAY INC: Court Approves Rodman Settlement Distribution Plan
SANFORD LP: Kilpatrick Townsend Discusses Class Action Ruling
SCHENKER INC: Fernandez Suit Moved to E.D. California
SCOTTS MIRACLE-GRO: Morning Song Bird Food Lawsuit Still Pending
SCOTTS MIRACLE-GRO: Preliminary EZ Seed Suit Settlement Underway
SECURIAN FINANCIAL: Faces Harrison Class Suit in N.D. Ohio
SINCLAIR BROADCAST: Faces Antitrust Class Suits over TV Ad Pricing
SIZZLING PLATTER: Fails to Pay Minimum & OT Wages, Berry Says
SKECHERS USA: Saxena White Files Securities Class Action
SOLARCITY CORP: Can Partly Compel Arbitration in Whitworth Suit
SOLOMON & SOLOMON: Fondacaro FDCPA Suit Dismissed
SOUTHERN COMPANY: Class Suit Remanded to Georgia Trial Court
SOUTHERN COMPANY: Unit Records $11M Expense for Class Settlement
SOUTHERN GAS: Faces Class Action in California Over Methane Leak
SPOT INT'L: Perez Suit Seeks Unpaid Wages under Labor Code
SQUARE INC: Fails to Pay OT to Couriers, Cole Suit Alleges
STAMPS.COM INC: Preliminary Settlement Reached in Lopez Lawsuit
STATE FARM MUTUAL: Removes Queens Suit to District of Maryland
STATE FARM: Faces $8.5-Bil. Claim Following Damage Award
STATE FARM: Settles Conspiracy Class Action for $250MM
STRATEGIC FUNDING: Guido Sues over Unlawful Interest Rates
SUNTRUST BANK: Underpays Fraud Investigators, Cobb Suit Alleges
SUPERBA FB: Martinez Seeks Unpaid Wages under Labor Code
SUPERCUTS INC: Martinez Sues over Identity Theft & Fraud
SUTTELL & HAMMER: Park Files FDCPA Suit in W.D. Washington
T.Y.P RESTAURANT GROUP: Schoen Sues over Tender Greens Gift Cards
TAMKO BUILDING: Homeowner Drops Roofing Shingle Defects Case
TARA BUILDERS: Lagos Files FLSA Suit in E.D. New York
TARGET CORP: Boegeman Sues over Erroneous Credit Report
TARGET CORP: Debit Card Holders Sue Over Overdraft Fees
TENNESSEE: Denial of Bid to Exclude Testimony in Graham Endorsed
TICKETMASTER: Faces Class Action Lawsuit After Scalping Report
TIME INC: Faces Lachapelle Class Suit in Rhode Island
TIME INC: Judges Can't Question Individual Shareholder Settlement
TORCHMARK CORP: Arbitration Underway in Bruce Class Action
TRANSAM TRUCKING: Judge Dismisses Misclassification Class Action
TRANSDIGM GROUP: Still Faces Consolidated Securities Class Suit
TRANSWORLD SYSTEMS: Edson Sues over Debt Collection Practices
TRUCK INSURANCE: Court Flips Partial Summary Judgment in Kurach
TRUEACCORD CORP: Miles Files FDCPA Suit in E.D. New York
TV BRANDS DIRECT: Faces Zhang Suit in S.D. New York
TWILIO INC: Angela Flowers' Class Action Underway in California
UNBRAKO LLC: Fails to Pay Proper Wages, Hernandez and Perez Say
UNITED PARCEL: Jackson Suit Moved to N.Y. State Court
UNITED STATES: Class Must Amend Suit Over New Policy on Title IX
UNITED STATES: McDuffie County Joins PILT Class Action
UNIVERSAL HEALTH: Bid to Nix Teamsters Class Lawsuit Still Pending
US XPRESS: Jury Trial in Robocall Suit Set to Begin Jan. 2020
VOLKSWAGEN AG: Faces Class Action Over Faulty Emissions Fix
VOYA RETIREMENT: Court Dismisses Amended Dezelan ERISA Suit
WALGREEN EASTERN: Faces Grinblat Suit in Eastern Dist. of New York
WAYFINDER FAMILY: Fails to Pay Minimum & OT, Walker-Smith Says
WELLS FARGO: $30MM Settlement in Fowler Suit Has Prelim Approval
WESTERN BEEF RETAIL: West Files ADA Suit in S.D. New York
WINS FINANCE: Desta Seeks to Certify Investors Class
WIRELESSPCS CA: Fails to Pay Minimum & OT Wages, Hernandez Claims
*********
ACUTE DIALYSIS: Fails to Pay Wages & OT, Tandoc & Sarmiento Claim
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JANUARIO TANDOC and ANTONIO SARMIENTO, as individuals on behalf of
themselves and all employees similarly situated, the Plaintiff, v.
ACUTE DIALYSIS SERVICES, INC., a California corporation; and DOES 1
through 50, inclusive, the Defendant, Case No. BC72l385 (Cal.
Super. Ct., Sept. 17, 2018), seeks to recover overtime wages under
the California Labor Code.
The case arose out of the Defendants' failure to properly pay
straight time, overtime, to provide meal and rest periods, and
failure to pay wages upon ending of employment to certain
California employees of the Defendant. The proposed Plaintiff
Classes consist of persons working as Registered Nurses, Licensed
Vocational Nurses, Certified Nursing Assistants or other titles,
who were paid on an hourly and/or piece rate for performing their
nonexempt duties. Further, the employees were not provided
compliant meal and rest periods due to the Defendant's assignment
of daily patient load and respective job duties, failure to
schedule the Plaintiffs as well as Class Members in an overlapping
manner so as to make it reasonably possible that the Plaintiffs as
well as the Class be provided with a meal and/or rest period(s) or
a meal and/or rest period whereby they are absolved of all work
duties.
Acute Dialysis Services LLC was founded in 1994. The company's
line of business includes providing kidney and renal dialysis
services.[BN]
The Plaintiff is represented by:
Randall S. Leff, Esq.
Russell M. Selmont, Esq.
ERVIN COHEN & JESSUP LLP
9401 Wilshire Boulevard, Ninth Floor
Beverly Hills, CA 90212-2974
Telephone: (310) 273 6333
Facsimile: (310) 859 2325
E-mail: rlefF@ecjlaw.com
rselmont@ecjlaw.com
ADOBE SYSTEMS: Court Tosses Injunctive Relief Claims in ACCP Suit
-----------------------------------------------------------------
In the case, T. K., Plaintiff, v. ADOBE SYSTEMS INCORPORATED,
Defendant, Case No. 17-CV-04595-LHK (N.D. Cal.), Judge Lucy H. Koh
of the U.S. District Court for the Northern District of California
granted with prejudice Adobe's motion to dismiss T.K.'s claims for
injunctive relief.
Plaintiff T.K. brings the putative class action against Adobe for
causes of action arising out of Adobe's sale of subscriptions to
the Adobe Creative Cloud Platform ("ACCP") to minors. Previously,
the Court dismissed T.K.'s claims for injunctive relief in T.K.'s
first amended complaint ("FAC") for lack of Article III standing
sua sponte, but granted leave to amend. T.K. has filed a second
amended complaint ("SAC") with amendments related to her claims for
injunctive relief.
T.K. seeks injunctive relief only as part of her cause of action
under the Unfair Competition Law ("UCL"). Specifically, T.K.
requests an injunction requiring Adobe to conform its practices to
California and federal law. Further, she also requests an
injunction that either requires Adobe to cease selling
subscriptions to the ACCP to minors or substantially change its
practices regarding transactions with minors, and to otherwise
conform its practices with California and federal law.
In March 2016, T.K., a minor and citizen of Puerto Rico, received
as a gift a one-year subscription to access ACCP. In order to
access that ACCP subscription, T.K. was required to create an Adobe
account, which involves agreeing to Adobe's terms of service for
ACCP. T.K. was also required to provide a credit or debit card,
and T.K. provided her own debit card information.
On Feb. 20, 2017, T.K. received an unsolicited email from Adobe
informing T.K. that her subscription would renew on March 20, 2017
on an annual basis for a fee of $49.99 per month plus tax. T.K.
did not respond to this email. On March 21, 2017, Adobe charged
T.K. $52.99. On April 21, 2017, Adobe charged T.K. an additional
$52.99.
A short time after the April charge, T.K., through her parent,
contacted Adobe and disaffirmed the renewal of the agreement. On
April 26, 2017, Adobe refunded T.K. $52.99. At some unspecified
time after T.K. filed the initial Aug. 10, 2017 complaint in the
case, Adobe sent $52.99 to T.K.'s debit card. T.K. did not
voluntarily accept these funds. T.K. alleges that she was injured
notwithstanding the refunds because she was denied the use of these
funds beginning on April 26, 2017.
T.K. alleges that by refusing to initially refund both of T.K.'s
monthly payments, Adobe refused to allow T.K. to disaffirm the
automatically renewed agreement. She alleges that this refusal by
Adobe is contrary to California Family Code Section 6710, which
provides minors the right to disaffirm contracts. T.K. alleges
that Adobe misinforms its users that all sales are final.
T.K. now alleges that following her disaffirmance and the filing of
the second amended complaint, she was required by one of her
teachers to obtain a license to the ACCP for use in her classroom.
But T.K. states that ultimately, the teacher left the school and
she was not required to obtain a license. T.K. further alleges
that because of the ubiquitous nature of the ACCP in education,
there is a very real threat that T.K. would be required by another
of her teachers to obtain a license of the ACCP.
T.K. seeks to represent the following putative class and subclass:
i. Class: All ACCP users who are or were minor children
according to Adobe's own records for the four years preceding the
date on which the complaint is filed through the date on which a
class is certified.
ii. Minors Disaffirming Subclass: Minors who purchased access
to the ACCP and attempted to disaffirm the agreement with Adobe
according to Adobe's customer service records, but were charged
fees according to the disaffirmed contract.
Before the Court is Adobe's motion to dismiss T.K.'s claims for
injunctive relief contained in T.K.'s SAC. Adobe's primary
assertion is that T.K. has no standing to assert her claims for
injunctive relief because T.K. has not alleged an imminent injury.
It maintains that T.K. failed to allege any intention to purchase
another subscription to ACCP, and that T.K.'s assertion that it is
possible that one of her teachers may require her to purchase ACCP
is conjecture and not sufficient to demonstrate real or imminent
harm.
Judge Koh agrees with Abode that T.K. lacks standing to seek
prospective injunctive relief. T.K. does not allege any actual
intention or plan to purchase ACCP again in the future. Instead,
she alleges only possible future injury. In fact, T.K.'s own
opposition states that the Complaint leaves open the possibility
that she may wish, or be required, to utilize the ACCP in the
future. Because the possibility that the Plaintiff may wish is not
sufficient, T.K. has failed to establish standing to seek
injunctive relief on that ground.
In dismissing T.K.'s claims for injunctive relief contained in the
first amended complaint for lack of Article III standing, the Judge
gave T.K. leave to amend, stating that T.K. may be able to plead
sufficient facts to establish standing. Furthermore, the Court's
order stated that if T.K.'s second amended complaint failed to cure
the deficiencies identified in the order, the claims would be
dismissed with prejudice. Because T.K. has failed to cure the
standing deficiency identified in the Court's previous order, Judge
Koh finds that additional leave to amend would be futile. Thus,
T.K.'s claims for injunctive relief are dismissed with prejudice.
For the foregoing reasons, the Judge granted with prejudice Adobe's
motion to dismiss the claims for injunctive relief in T.K.'s SAC.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/AJ1Ns6 from Leagle.com.
T. K., by and through her Guardian ad Litem, LYNN KRESCH,
individually and on behalf of all others similarly situated,
Plaintiff, represented by Keith L. Altman -- kaltman@lawampmmt.com
-- Excolo Law, PLLC.
Adobe Systems Incorporated, Defendant, represented by Trenton
Herbert Norris -- trent.norris@arnoldporter.com -- Arnold & Porter
Kaye Scholer LLP, George Freeman Langendorf --
george.langendorf@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP & Tommy Huynh -- tommy.huynh@arnoldporter.com -- Arnold Porter
Kaye Scholer LLP.
ALLIED INTERNATIONAL: Pena Files FDCPA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Allied International
Credit Corp. The case is styled as Francis Pena individually and on
behalf of all others similarly situated, Plaintiff v. Allied
International Credit Corp., Defendant, Case No. 1:18-cv-05362 (E.D.
N.Y., Sept. 24, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Allied International Credit Corp (AIC) is a debt collection agency
based in Canada with an address at 26 - 16635 Yonge St, Newmarket,
ON L3X 1V6.[BN]
The Plaintiff appears pro se.
AMERICAN AIRLINES: Judge Dismisses Class Action For Now
-------------------------------------------------------
Scott Holland, writing for Cook County Record, reports that a
federal judge has dismissed American Airlines, for now, from a 2017
class action complaint in which employees complained new uniforms
made them sick.
Judge John Tharp. Jr. issued his opinion Sept. 4 in Chicago, a
decision that came as a separate group of flight attendants filed a
similar action Aug. 24 in Chicago, also on behalf of virtually all
other airline employees.
The complaint Tharp addressed pitted 11 named plaintiffs against
American, as well as Twin Hill Acquisition Company, which supplied
the uniforms rolled out for the company's worldwide workforce
starting in late 2016. Because the workers say chemicals in the new
synthetic fabric uniforms made thousands of employees ill, they
sought to hold both companies liable for battery and intentional
infliction of emotional distress, while also accusing Twin Hill of
negligence and products liability.
The workers asked the court to force Twin Hill to recall the
uniforms and to compel both companies to establish a medical
monitoring fund in hopes of mitigating long-term health effects.
Both companies sought dismissal, saying the workers failed to state
a claim, while Twin Hill also moved to strike the class
allegations.
Tharp said the plaintiffs "divided their allegations into five
counts corresponding to five legal theories," describing it as a
"common and often helpful approach to pleading," but which also
obscures the difference between claims for grievances and relief
demands and legal theories showing which facts give rise to
liability and damages. He further explained the complexity of
determining which state's laws should be applicable given the size
and mobility of American's workforce and the way the employees
constructed their complaint, as well as whether there are
accusations that would place the dispute properly in federal court
as opposed to being litigated through established worker's
compensation laws.
"The complaint stops short of alleging that American acted with a
purpose to harm anyone," Tharp wrote. "Plaintiffs do not allege
that American specifically desired the alleged consequences of the
uniform change; namely, that its employees develop skin,
respiratory and other health problems. Plaintiffs instead stake
their claim on the notion that American knew the Twin Hill uniforms
were unsafe but went forward with the rollout anyway without
concern for the consequences to its employees."
He further said the workers plausibly allege the uniforms were
"unreasonably dangerous," as well as the likelihood that American
knew some percentage of employees would have negative reactions.
But the complaint "fails to give rise to the inference that
American knew with requisite certainty that any particular
employees, much less the named plaintiffs, would be harmed by the
Twin Hill uniforms."
As such, he reasoned, the workers' allegations "might give rise to
liability under some other legal theories in a different context,
but it does not permit the named plaintiffs in this case to seek
damages outside the confines of the applicable states' workers'
compensation regimes."
Tharp dismissed American from the complaint without prejudice,
permitting the workers to reframe their allegations. However, he
rejected Twin Hill's motions to be dismissed, as well as to reject
class certification. Although there are variance in state laws, he
explained, each of the named plaintiffs "has pleaded sufficient
facts to maintain a design defect theory at this stage."
Based on the uniform testing by American pilots, as well as similar
litigation with Alaska Airlines employees, Tharp said Twin Hill
should have known its uniforms were potentially problematic. He
further said moving ahead with class certification is proper
because continued discovery and the possible creation of geographic
subclasses can resolve reservations about prevailing law and class
diversity issues.
Plaintiffs in this case are represented by attorneys Warren T.
Burns, Esq. -- wburns@burnscharest.com -- Korey A. Nelson, Esq. --
knelson@burnscharest.com -- and Charles J. Gower, Esq. --
jgower@burnscharest.com -- of the firm of Burns Charest LLP, of
Dallas and New Orleans; Todd L. McLawhorn, Esq. --
tmclawhorn@siprut.com -- Stewart M. Weltman, Esq. --
sweltman@siprut.com -- and Michael M. Chang, Esq. --
mchang@siprut.com -- of Siprut PC, of Chicago; and Nada Djordjevic,
Esq. of Boodell & Domanskis LLC, of Chicago.
American Airlines is represented by Susannah K. Howard, Esq. --
showard@omm.com -- and Mark W. Robertson, Esq. --
mrobertson@omm.com -- of O'Melveny & Myers LLP, of San Francisco;
and Larry S. Kaplan, Esq. -- lkaplan@kmalawfirm.com -- and Matthew
J. Obiala, Esq. -- mobiala@kmalawfirm.com -- of Kaplan, Massamillo
& Andrews LLC, of Chicago.
Twin Hill is represented by Francis A. Citera, Esq. --
citeraf@gtlaw.com -- and Caitlyn E. Haller, Esq. --
hallerc@gtlaw.com -- of Greenberg Traurig LLP, of Chicago.
In a separate ruling issued Sept. 11, the judge ordered a virtually
identical lawsuit, docketed as Joy, et. al. v American Airlines,
which was filed in August, to be consolidated with the earlier
case. Plaintiffs in both cases were ordered to file a consolidated
amended complaint by Nov. 1.[GN]
AMERICAN HOMEPATIENT: Kruss Suit Asserts Breach of Fiduciary Duty
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A class action lawsuit has been filed against American Homepatient,
Inc., et al. The case is styled as Joseph Kruss individually and on
behalf of all others similarly situated, Plaintiff v. American
Homepatient, Inc., Lincare Holdings, Inc., Defendants, Case No.
8:18-cv-02348-EAK-TGW (M.D. Fla., Sept. 24, 2018).
The Plaintiff filed the case for Breach of Fiduciary Duty.
American HomePatient, Inc., a home healthcare provider, supplies
home medical products and services to patients in the United
States. It offers products and services for sleep apnea, such as
CPAP/Bi-level devices, masks, cushions, headgears, tubings,
filters, humidifier chambers, and other accessories; and
respiratory disorder including liquid and gaseous oxygen products,
concentrators, conserving devices, and travel oxygen.
Lincare Holdings Inc. provides oxygen, respiratory, and home
infusion products and services to patients who suffer from
respiratory diseases. It offers oxygen therapy, nebulizer therapy,
home infusion therapy, sleep therapy, ventilator therapy, enteral
therapy, pediatric, and caring responder services.[BN]
The Plaintiff is represented by:
Charlie Schaffer, Esq.
Levin Sedran Berman LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
- and -
Daniel C. Levin, Esq.
Levin Sedran Berman LLP
510 Walnut Street, Suite 500
Philadelphi, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
- and -
John Allen Yanchunis, Sr., Esq.
Morgan & Morgan, PA
One Tampa City Center Ste 700
201 N Franklin Street
Tampa, FL 33602-5157
Phone: (813) 223-5505
Fax: (813) 223-5402
Email: jyanchunis@forthepeople.com
- and -
Ryan Joseph McGee, Esq.
Morgan & Morgan, PA
One Tampa City Center Ste 700
201 N Franklin Street
Tampa, FL 33602-5157
Phone: (813) 223-1099
Fax: (813) 223-1055
Email: rmcgee@forthepeople.com
AMIN SHAMSUDDIN VIRANI: Alam Suit Seeks to Recover Unpaid OT Wages
------------------------------------------------------------------
Burhan Alam, and all others similarly situated, Plaintiffs, v. Amin
Shamsuddin Virani, Defendant, Case No. 18-cv-03244 (S.D. Tex.,
September 12, 2018), seeks to recover unpaid overtime wages,
equitable relief, compensatory and liquidated damages, attorney's
fees, all costs of the action, and post-judgment interest for
failure to pay overtime wages under the Fair Labor Standards Act.
Alam was an employee who worked as a clerk at a gas station and
convenience store owned, operated and controlled by Virani. Alam
did not receive overtime pay for hours worked in excess of 40
during each workweek, notes the complaint. [BN]
Plaintiff is represented by:
Salar Ali Ahmed, Esq.
ALI S. AHMED, P.C.
One Arena Place
7322 Southwest Frwy., Suite 1920
Houston, TX 77074
Telephone: (713) 223-1300
Facsimile: (713) 255-0013
Email: aahmedlaw@gmail.com
AMSHER COLLECTION: Alvarado Files FDCPA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Amsher Collection
Services, Inc. The case is styled as Maritza Alvarado individually
and on behalf of all others similarly situated, Plaintiff v. Amsher
Collection Services, Inc., Defendant, Case No. 1:18-cv-05385 (E.D.
N.Y., Sept. 25, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
AmSher Collection Services, Inc. is an independent debt collector,
located in Birmingham, Alabama.[BN]
The Plaintiff appears pro se.
ANHEUSER-BUSCH: Prelim Approval of Atty Fees in Knowlton Denied
---------------------------------------------------------------
In the case, BRIAN KNOWLTON, et al., individually, and on behalf of
all others similarly situated, Plaintiffs, v. ANHEUSER-BUSCH
COMPANIES, LLC, et al., Defendants, Consolidated Case No.
4:13-cv-210 SNLJ (E.D. Mo.), Judge Stephen N. Limbaugh, Jr. of the
U.S. District Court for the Eastern District of Missouri, Eastern
Division, denied without prejudice the Plaintiffs' motion for
preliminary approval of attorney fees and incentive awards for the
named Plaintiffs.
The matter is before the Court on remand from the U.S. Court of
Appeals for the Eighth Circuit. Thr Court had granted judgment on
the pleadings to the Plaintiffs, who claimed that, as salaried
participants in the Anheuser-Busch Companies Pension Plan, they
were entitled to certain enhanced retirement benefits under Section
19.11(f) of the Plan. The Court agreed with the Plaintiffs. The
Eighth Circuit affirmed that determination but remanded for further
proceedings on calculation of benefits.
Currently before the Court is the Plaintiffs' motion for
preliminary approval of attorney fees and incentive awards for the
named Plaintiffs. The Defendants oppose the motion. The parties
sought and received an extended briefing schedule.
The Class Counsel requests that the Court awards attorney fees on a
percentage basis: one-third of the first $10 million and 25% of the
balance of the gross amount recovered by the class. The counsel
expects that the gross amount, based upon current data, will be
between $56 million and $65 million. The class representatives had
signed contingency fee contracts with the Class Counsel, and the
percentages requested by the Counsel reflect the lowest percentage
fee negotiated by the Class Counsel and any Class member. Notably,
under the proposal, the percentage of the Class Fund recovered as
attorney fees will be effectively reduced by (among other things)
the application of ERISA's fee-shifting statute as an offset
against the fees owed by the Class. The parties are attempting to
agree on the amount of statutory fees due under the fee-shifting
statute.
Judge Limbaugh finds that although few courts in the Circuit have
addressed the precise issue before the Court, the prototypical case
appears to be Tussey v. ABB, Inc., in which the Eighth Circuit
affirmed the $12.9 million award of an ERISA class action attorney
fees under the fee-shifting statute, but without any additional
percentage-based fees taken from a common fund. The Judge will
thus address the matter of attorney fees under the fee-shifting
statute at the appropriate time.
The Plaintiffs request that the Court orderr incentive payments be
made to the Class representatives as follows: $50,000 each to Brian
Knowlton, Nancy Anderson, Richard Angevine, and Douglas Minerd, and
$5,000 each to Andy Fichthorn, Gary Lensenmayer, Donald W. Mills,
Jr., Joe Mullins, and Charles Wetesnick, for a total
incentive-award package of $225,000.
This request, though, is premature until the full amount of damages
has been determined, the Judge finds. In any event, as the Eighth
Circuit held in Tussey, any incentive award is not part of the
attorney fees calculation. Incentive awards will be taken from the
total amount of damages for all the class participants.
Accordingly, Judge Limbaugh denied without prejudice the
Plaintiffs' motion for preliminary approval of attorney fees and
incentive awards for the named Plaintiffs in the class action at
this time.
A full-text copy of the Court's April 24, 2018 Memorandum and Order
is available at https://is.gd/O3SL0Z from Leagle.com.
Brian Knowlton, individually, and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Andrew Servais, Wingert
Grebing Brubaker and Juskie LLP; Charles R Grebing, Wingert Grebing
Brubaker & Juskie LLP; Joe D. Jacobson, GREEN JACOBSON, P.C.; Scott
J. Stitt -- scottstitt@tuckerellis.com -- of TUCKER ELLIS LLP; &
Joseph R. Dulle -- jdulle@stoneleyton.com -- of STONE AND LEYTON.
Douglas Minerd, individually, and On Behalf of All Others Similarly
Situated, Gary Lensenmayer, individually, and On Behalf of All
Others Similarly Situated & Charles R. Wetesnik, individually, and
On Behalf of All Others Similarly Situated, Plaintiffs, represented
by Andrew Servais, Wingert Grebing Brubaker and Juskie LLP, Charles
R. Grebing, Wingert Grebing Brubaker & Juskie LLP, Joe D. Jacobson,
JACOBSON PRESS, P.C., Scott J. Stitt, TUCKER ELLIS LLP, pro hac
vice & Joseph R. Dulle, STONE AND LEYTON.
Nancy J Anderson, Consolidated Filer Plaintiff, represented by
Christine M. Snyder, TUCKER ELLIS LLP, Joe D. Jacobson, GREEN
JACOBSON, P.C., Joseph R. Dulle, STONE AND LEYTON, Paul J.
Puricelli -- ppuricelli@stoneleyson.com -- of STONE AND LEYTON &
Scott J. Stitt, TUCKER ELLIS LLP.
Richard F. Angevine, Consolidated Filer Plaintiff, represented by
Christine M. Snyder , TUCKER ELLIS LLP, Joe D. Jacobson, JACOBSON
PRESS, P.C., Karl A. Bekeny, TUCKER ELLIS LLP, Scott J. Stitt,
TUCKER ELLIS LLP, pro hac vice & Joseph R. Dulle, STONE AND
LEYTON.
Joe Mullins, Andy Fichthorn & Donald W. Mills, Jr., Consolidated
Filer Plaintiffs, represented by Joe D. Jacobson, JACOBSON PRESS,
P.C., Scott J. Stitt, TUCKER ELLIS LLP, pro hac vice & Joseph R.
Dulle, STONE AND LEYTON.
Anheuser-Busch Companies Pension Plan, Anheuser-Busch Companies,
LLC, Anheuser-Busch Companies Pension Plan Appeals Committee &
Anheuser-Busch Companies Pension Plan Administrative Committee,
Defendants, represented by James F. Bennett --
jbennett@dowdbennett.com -- of DOWD BENNETT, LLP; Jennifer L.
Aspinall -- jaspinall@dowdbennett.com -- of DOWD BENNETT, LLP;
Peter B. Morrison -- peter.morrison@skadden.com -- of SKADDEN AND
ARPS; Albert L. Hogan, III -- al.hogan@skadden.com -- of SKADDEN
AND ARPS & David R. Pehlke -- david.pehlke@skadden.com -- of
SKADDEN AND ARPS.
AR RESOURCES: Removes Worley Suit to E.D. Missouri
--------------------------------------------------
The Defendant in the case of ALEAH WORLEY, individually and on
behalf of all others similarly situated, Plaintiff v. AR RESOURCES,
INC., Defendant, filed a notice to remove the lawsuit from the 11th
Judicial Circuit of the State of Missouri, County of St. Charles
(Case No. 1811-AC04617) to the U.S. District Court for the Eastern
District of Missouri on August 24, 2018, and assigned Case No.
4:18-cv-01409-PLC (E.D. Mo.,Aug. 24, 2018). The case is assigned to
Magistrate Judge Patricia L. Cohen.
AR Resources, Inc. is a national debt collection company that
specializes in collection solutions for business to business,
consumer, property management and healthcare debt recovery. [BN]
The Plaintiff is represented by:
Joel Spencer Halvorsen, Esq.
HALVORSEN KLOTE
680 Craig Rd. Suite 104
St. Louis, MO 63141
Telephone: (314) 254-3254
Facsimile: (314) 448-4300
E-mail joel@hklawstl.com
The Defendant is represented by:
Louis J. Wade, Esq.
MCDOWELL AND RICE
605 W. 47th Street
350 Skelly Building
Kansas City, MO 64112
Telephone: (816) 753-5400
Facsimile: (816) 753-9996
E-mail: lwade@mcdowellrice.com
AWESOMENES ST: Workman & Zucker Sue over Minimum & OT Wages
-----------------------------------------------------------
D. WORKMAN and B. ZUCKER individually and on behalf of all others
similarly situated, the Plaintiff, v. AWESOMENES ST LLC, a
California Limited Liability Company, RED MIRROR, LLC, a California
Limited Liability Company, JORDAN LEVIN, an individual, and DOE 1
through and including DOE 10, the Defendant, Case No. BC722110
(Cal. Super. Ct., Sep. 13, 2018), seeks to recover unpaid minimum
wage and overtime under the California Labor Code.
According to the complaint, the Defendants employed Workman for the
Do It Production on or about April 11, 2018. However, he received
his check on June 18, 2018, about two months later. The Defendants
also employed Plaintiff for the Love Daily Production on or about
May 21, 2018. However, his check was not mailed until July 6, 2018,
about one month and a half later. The Plaintiffs have tried to
contact the Defendants several times for their payments after the
day they worked, but, as of the day of filing of this complaint,
the Defendants have failed to properly compensate the Plaintiffs
and other persons who performed services on the Do It and Love
Daily Production for all work performed and other similar
entertaining projects.
The Plaintiff Workman worked for nine hours and Plaintiff Zucker
worked for 13 hours. However, as of the filing of this Complaint,
neither Plaintiffs nor other Aggrieved Employees were compensated
as required by law. It also appears that the Defendants seek to
treat Plaintiffs and Aggrieved Employees as independent contractors
rather than employees, in contravention of Dynamex Operations W.,
Inc., v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr.
30, 2018). Not only were the Plaintiffs owed wages on account of
their services, but each Plaintiff was also entitled to a kit
rental fee of $75.[BN]
The Plaintiff is represented by:
Alan Harris, Esq.
David Garrett, Esq.
Lin Zhan, Esq.
HARRIS & RUBLE
655 North Central Avenue 17th Floor
Glendale, CA 91203
Telephone: (323) 962 3777
Facsimile: (323) 962 3004
E-mail: harrisa@harrisandruble.com
dgarrett@harrisandruble.com
lznan@harrisandruble.com
B F T LP: AMP Partial Summary Judgment Bid on EBR Defense Granted
-----------------------------------------------------------------
In the case, AMP AUTOMOTIVE, LLC, v. B F T, LP d/b/a GREAT AMERICAN
BUSINESS PRODUCTS, SECTION A(5), Civil Action No. 17-5667 (E.D.
La.), Judge Jay C. Zainey of the U.S. District Court for the
Eastern District of Louisiana granted the Plaintiff's Motion for
Partial Summary Judgment Regarding the Established Business
Relationship Defense.
AMP alleges that the Defendant violated the Telephone Consumer
Protection Act ("TCPA") by sending unsolicited faxes advertising
Great American products and services. AMP categorizes Great
American's actions as a "Junk Fax Campaign." It alleges that Great
American blasted thousands of junk faxes in direct violation of the
Act and the regulations promulgated under the Act by the Federal
Communications Commission ("FCC"). AMP specifically provides the
fifteen allegedly unsolicited faxes that were sent as
advertisements from Great American to AMP. Attached to AMP's
Complaint are the 15 single-page advertisements.
AMP also seeks to bring the suit as a class action. Moreover, it
to be named representative of the Plaintiff Class and seeks an
incentive award for its efforts as class representative. AMP also
seeks statutory damages of $500 for each violation of the Act,
trebling of damages if the Court finds fit, and injunctive relief
prohibiting Great American from continuing to send allegedly
non-compliant fax advertisements.
AMP now moves for partial summary judgment asking the Court to
issue an Order stating that the established business relationship
defense is unavailable to Great American as a matter of law. In
its Answer, the Defendant asserts the following established
business relationship ("EBR"): The Defendant asserts the defense
that it and the Plaintiff and/or its predecessor in interest
maintained an established business relationship under the TCPA and
Junk Fax Act.
Judge Zainey concludes that the EBR defense cannot help Great
American unless it can show it meets the other two requirements of
47 U.S.C. Section 227(b)(1)(C)(i)-(iii). Besides showing an EBR
between it and AMP, Great American would also need to show that it
obtained AMP's fax number either through a voluntary communication
between the two or through a public source on which AMP voluntarily
made the number available. The evidence in the record shows that
the faxes did not contain a valid opt-out notice necessary for
Great American to maintain an EBR defense under 47 U.S.C. Section
227(b)(1)(C)(i)-(iii). However, the Judge's decision today does not
prevent Great American from bringing any other defenses.
Accordingly, Judge Zainey granted the Plaintiff's Motion for
Partial Summary Judgment Regarding the Established Business
Relationship Defense.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/82XetS from Leagle.com.
AMP Automotive, LLC, Plaintiff, represented by George Brian Recile
-- GBR@CHEHARDY.COM -- Chehardy, Sherman, Williams, Murray, Recile,
Stakelum & Hayes, LLC., Matthew Arthur Sherman -- MAS@CHEHARDY.COM
-- Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes,
LC, Patrick R. Follette -- PRF@CHEHARDY.COM -- Chehardy, Sherman,
Williams, Murray, Recile, Stakelum & Hayes, LLC, Preston Lee Hayes
-- PLH@CHEHARDY.COM -- Chehardy, Sherman, Williams, Murray, Recile,
Stakelum & Hayes, LLC & Ryan Paul Monsour -- RPM@CHEHARDY.COM --
Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes,
LLC.
B F T, LP, doing business as, Great American Business Products,
Defendant, represented by Kimberley M. Spurlock, Spurlock &
Associates, PC, pro hac vice, Katharine Rachael Colletta --
colletta@chaffe.com -- Chaffe McCall LLP & Misty A. Hataway-Cone,
Spurlock & Associates, PC, pro hac vice.
B F T LP: Court Refuses to Certify Class in AMP TCPA Suit
---------------------------------------------------------
In the case, AMP AUTOMOTIVE, LLC, v. B F T, LP d/b/a GREAT AMERICAN
BUSINESS PRODUCTS, SECTION A(5), Civil Action No. 17-5667 (E.D.
La.), Judge Jay C. Zainey of the U.S. District Court for the
Eastern District of Louisiana denied the Plaintiff's Motion for
Class Certification.
AMP alleges that the Defendant violated the Telephone Consumer
Protection Act ("TCPA") by sending unsolicited faxes advertising
Great American products and services. AMP categorizes Great
American's actions as a "Junk Fax Campaign." It alleges that Great
American blasted thousands of junk faxes in direct violation of the
Act and the regulations promulgated under the Act by the Federal
Communications Commission ("FCC"). AMP specifically provides the
fifteen allegedly unsolicited faxes that were sent as
advertisements from Great American to AMP. Attached to AMP's
Complaint are the 15 single-page advertisements.
AMP also seeks to bring the suit as a class action. Moreover, it
seeks to be named representative of the Plaintiff Class and seeks
an incentive award for its efforts as class representative. AMP
also seeks statutory damages of $500 for each violation of the Act,
trebling of damages if the Court finds fit, and injunctive relief
prohibiting Great American from continuing to send allegedly
non-compliant fax advertisements.
Before the Court is the Plaintiff's Motion for Class Certification.
It moves to have a class certified pursuant to Federal Rule of
Civil Procedure 23(b)(3) consisting of all persons and entities
that are subscribers of telephone numbers to which within four
years of the filing of the Complaint, the Defendant sent
unsolicited facsimile transmissions with content that discusses,
describes, promotes products and/or services offered by the
Defendant, and does not contain the opt-out notice required by 47
U.S.C. Section 227(b)(2)(D) and by 47 C.F.R. Section 227(b)(2)(D)
and by 47 C.F.R. Section 63.1200(a)(4)(iii).
Judge Zainey finds that AMP has failed to meet its burden of
showing that the requirements of Rule 23 have been met. He is
unconvinced that AMP meets the typicality requirement of Rule
23(a)(3). As a result, the matter is not suitable for class action
certification under Rule 23.
The Judge concludes that the facts surrounding the matter do not
make it amenable to class wide resolution. At the heart of the
matter is the issue of whether Great American's faxes to AMP were
solicited or unsolicited. Again, he makes no findings regarding
the merit of Great American's defense that AMP consented or gave
permission to Great American in the past. However, he does foresee
trial in the matter revolving around the timing of AMP's formation
and its relationship to past entities involved with Marshall Bros.
Collision Center.
The Judge is familiar with the strict-liability nature of the TCPA,
and has reviewed the case law cited by AMP. However, that issue is
not before the Court today. Rather, he foresees theories of agency
and authority being unique issues to the instant parties that will
not be typical to the proposed class as a whole.
Accordingly, he denied the Plaintiff's Motion for Class
Certification.
A full-text copy of the Court's April 22, 2018 Order and Reasons is
available at https://is.gd/ryjxH9 from Leagle.com.
AMP Automotive, LLC, Plaintiff, represented by George Brian Recile
-- GBR@CHEHARDY.COM -- Chehardy, Sherman, Williams, Murray, Recile,
Stakelum & Hayes, LLC., Matthew Arthur Sherman -- MAS@CHEHARDY.COM
-- Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes,
LC, Patrick R. Follette -- PRF@CHEHARDY.COM -- Chehardy, Sherman,
Williams, Murray, Recile, Stakelum & Hayes, LLC, Preston Lee Hayes
-- PLH@CHEHARDY.COM -- Chehardy, Sherman, Williams, Murray, Recile,
Stakelum & Hayes, LLC & Ryan Paul Monsour -- RPM@CHEHARDY.COM --
Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes,
LLC.
B F T, LP, doing business as, Great American Business Products,
Defendant, represented by Kimberley M. Spurlock, Spurlock &
Associates, PC, pro hac vice, Katharine Rachael Colletta --
colletta@chaffe.com -- Chaffe McCall LLP & Misty A. Hataway-Cone,
Spurlock & Associates, PC, pro hac vice.
BAIN CAPITAL: Gamco Asset Sues over iHeartMedia Restructuring
-------------------------------------------------------------
GAMCO ASSET MANAGEMENT, INC., individually and on behalf of all
others similarly situated, Plaintiff v. BLAIR HENDRIX; DOUGLAS L.
JACOBS; DANIEL G. JONES; PAUL KEGLEVIC; VINCENTE PIEDRAHITA; ROBERT
W. PITTMAN; OLIVIA SABINE; DALE W. TREMBLAY; BAIN CAPITAL PARTNERS,
LLC; and THOMAS H. LEE PARTNERS, L.P., Defendants, Case No.
2018-0633 (Del. Ch., Aug. 27, 2018) is an action on behalf of a
proposed class of minority shareholders of Clear Channel Outdoor
Holdings, Inc., from November 8, 2017 to March 14, 2018, who were
at all relevant times unaffiliated with either Clear Channel's
direct parent, iHeartCommunications, Inc., or the Company's
indirect parent, iHeartMedia, Inc., for breach of fiduciary duty by
the Defendants in November 2017 for failure to employ contractual
rights respectively available to the Defendants to ensure repayment
on the Revolving Note and to declare a pro rata dividend to Clear
Channel shareholders, including Minority Shareholders.
According to the Plaintiff in the complaint, exercising the
contractual rights available to the Defendants would have avoided
the virtual certainty that the unsecured Revolving Note balance,
which is Clear Channel's single biggest asset, and Minority
Shareholders' interest in the note would become impaired or wholly
uncollectable when the iHeart Entities inevitably filed their long
–anticipated bankruptcy petition -- which ultimately occurred on
March 14, 2018. Instead, the Defendants did nothing. By doing
nothing, the Defendants continued to favor the increasingly
unsalvageable interests of the iHeart Entities, which were majority
owned and controlled by the Private Equity Defendants, in breach of
their fiduciary duties to Minority Shareholders, thereby costing
Minority Shareholders at least $89.7 million to $108.2 million.
Bain Capital, LP operates as an investment company. The Company
provides private and public equity, fixed income and credit,
venture capital, real estate, and other investment services. Bain
Capital serves clients worldwide.
Thomas H. Lee Partners, L.P. is a private equity firm specializing
in management-led buyouts, growth capital, mature, middle market,
special situations, add-on acquisitions, recapitalizations for
growth companies. Thomas H. Lee Partners, L.P. was founded in 1974
and is based in Boston, Massachusetts with an additional office in
New York, New York. [BN]
The Plaintiff is represented by:
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 N. Market Str., 12th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
E-mail: bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
BEN EVANS: Fails to Pay Minimum & OT Wages, Garcia et al. Say
-------------------------------------------------------------
MARTIN GARCIA and MICHAEL PINA, on behalf of themselves and others
similarly situated, the Plaintiff, v. BEN EVANS, INC. d/b/a
ENVIRONMENTAL CONTROL; and DOES 1 to 100, inclusive, the
Defendants, Case No. BC720949 (Cal. Super. Ct., Sept. 14, 2018),
seeks unpaid wages and interest thereon for unpaid wages for all
hours worked at minimum wage and overtime hours worked at the
overtime rate of pay due to the Defendants' policy, practice,
and/or procedure of failing to pay employees for the time it took
them to travel from job site to job site; failure to pay overtime
wages for overtime hours worked to the extent the Defendants failed
to pay employees for their travel time when employees worked in
excess of eight hours in a day or 40 hours in a week; failure to
authorize or permit legally-required meal periods of not less than
30 minutes or pay meal period premium wages; failure to authorize
or permit legally-required rest periods or pay rest period premium
wages including, failure to reimburse employees for their
employment-related expenditures including, but not limited to,
mileage and cell phone usage; and statutory penalties for failure
to provide accurate wage statements, waiting time penalties in the
form of continuation wages for failure to timely pay employees all
wages due upon separation of employment; injunctive relief and
other equitable relief; reasonable attorney's fees pursuant to
California Labor Code sections 226(e) and 1194; costs; and
interest.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432 0000
Facsimile: (310) 432 0001
E-mail: vgranberry@lelawfirm.com
- and -
Sahag Majarian II, Esq.
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventura Boulevard
Tarzana, CA 91356
Telephone: (818) 609 0807
Facsimile: (818) 609 0892
BISSELL INC: Kiler Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Bissell, Inc., et al.
The case is styled as Marion Kiler individually and as the
representative of a class of similarly situated persons, Plaintiff
v. Bissell, Inc., Bissell Homecare, Inc., Defendants, Case No.
1:18-cv-05363 (E.D. N.Y., Sept. 24, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Bissell Inc., also known as Bissell Homecare, is a privately owned
vacuum cleaner and floor care product manufacturing corporation
headquartered in Walker, Michigan in Greater Grand Rapids. The
company is the number one manufacturer of floor care products in
North America in terms of sales, with 20% marketshare.[BN]
The Plaintiff is represented by:
Dan Shaked
Shaked Law Group, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11217
Phone: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
BYPASS GRILL HOUSE: Demyers Labor Suit to Recover Unpaid OT Wages
-----------------------------------------------------------------
Bengie Demyers, individually and on behalf of all others similarly
situated, v. Bypass Grill House, Gaines Andrews, Jr. and Cecilia
Andrews, Defendants, Case No. 18-cv-00273 (S.D. Tex., September 10,
2018), seeks to recover unpaid overtime wages and other damages
under the Fair Labor Standards Act.
Bypass Grill is a restaurant located in Alvin, Texas, where Demyers
worked as an hourly paid worker. He claims to have worked in excess
of 40 hours per week without the corresponding overtime premium.
[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
800 Sawyer St.
Houston, TX 77007
Tel: (713) 999-5228
Fax: (713) 999-1187
Email: matt@parmet.law
CAL WEST AG: Settlement in Mora Suit Has Preliminary Approval
-------------------------------------------------------------
In the case, CARMELA MORA, on behalf of herself and all others
similarly situated, Plaintiffs, v. CAL WEST AG SERVICES, INC., et
al., Defendants, Case No. 1:15-cv-01490-LJO-EPG (E.D. Cal.), Judge
Lawrence J. O'Neill of the U.S. District Court for the Eastern
District of California granted Mora's Motion for Preliminary
Approval of Class Settlement, Conditional Certification of
Settlement Class, Approval of Class Notice Package, Approval of
Class Notice Package, Approval of Plaintiffs' Payments, Appointment
of Class Counsel and Settlement Administrator, and Setting of Final
Approval Hearing.
On June 27, 2018, Magistrate Judge Erica P. Grosjean issued
Findings and Recommendations, recommending that the Plaintiff's
motion be granted, subject to the Court's findings and
recommendations set forth therein, including a recommendation that
the settling parties be required to revise the Notice of Class
Action Settlement and the Claim Form. The Findings and
Recommendations were served on the parties with instructions that
any objections must be filed within 14 days of service of the
order. To date, no objections have been filed.
In accordance with the provisions of 28 U.S.C. Section
636(b)(1)(c), Judge O'Neill conducted a de novo review of the case.
He determined that there were serious questions remaining as to
the adequacy of the sum assigned to the California Labor and
Workforce Development Agency ("LWDA") to settle claims under the
California Labor Code Private Attorney General Act ("PAGA"). He
therefore instructed the parties to obtain a statement of position
from the LWDA, and permitted additional briefing on the issue.
The parties filed a joint response on Aug. 17, 2018, indicating
that the LWDA had not received the statutorily required PAGA
notice, and the parties could not provide the requested position
statement. The parties also stated that this failure to exhaust
administrative remedies before the LWDA created a substantial risk
to continued litigation, and that the settlement amount of $5,000
is adequate considering the risk. Having carefully reviewed the
entire file, including the additional joint filing, he finds that
the Findings and Recommendations are supported by the record and
proper analysis.
Accordingly, Judge O'Neill granted Mora's Motion for Preliminary
Approval. The Settlement Agreement is granted preliminary
approval. He conditionally certified under Rule 23(c)(1), the
proposed class, for purposes of settlement only, of all Cal West Ag
Service Inc.'s non-exempt workers who were employed by and/or
performed work for Defendants Jon and Eric Marthedal as
agricultural workers at Marthedal Farms in California between Sept.
30, 2011 and the date of preliminary approval.
The form and content of the Notice of Class Action Settlement, as
revised in a May 3, 2018, are approved conditioned on the settling
parties making the following modifications to the Notice: (i)
provide an additional statement in the Notice of Class Action
Settlement that clearly conveys to Class Members that Defendant Cal
West Ag is not participating in the Settlement and that claims
against Cal West Ag are not released under the Settlement; (ii)
revise the objection provision of the Notice of Class Action
Settlement to include an explanation that a Class Member may raise
objections at the final approval hearing, but that the Court
retains discretion to decline to consider any objection that has
not been timely submitted in writing; and (iii) revise the
Signature and Confirmation of Consent to Jurisdiction portion of
the Claim Form to fix what appears to be a typographical error
regarding the court to which the Class Member consents to
jurisdiction.
The Judge directed the settling parties to file a second revised
proposed Notice incorporating the above modifications within 14
days of the date of the Order. He also approved the procedures for
the Class Members to be notified of, participate in, opt-out of,
and object to the settlement, as set forth in the Settlement, with
the described modifications to the Notice. He also directed the
mailing of the Notice by first class mail to the Class Members in
accordance with the procedures set forth in the Settlement
Agreement, with the described modifications to the Notice.
Judge O'Neill approved the procedures for distributing the Notice
to Class Members, with the described modifications to the Notice.
The Class Members will receive a Settlement Share if, not later
than 45 days after the mailing of the Notice, they submit a
completed and timely Claim Form under the procedures set forth in
the Notice, and unless they submit a valid and timely Election Not
to Participate in Settlement (Opt-Out Form). Any Class Member who
elects not to participate in the Settlement has until 45 days after
the mailing of the Notice to submit her or his Election Not to
Participate in Settlement (Opt-Out Form) under the procedures set
forth in the Notice.
He appointed (i) Simpluris to act as the Settlement Administrator,
under the terms set forth in the Settlement Agreement; (ii) Mora as
the Class Representative; and (iii) Mallison & Martinez as the
Class Counsel.
The Notice, with the modifications, will be distributed to the
Class Members in accordance with the procedures set forth in the
Settlement Agreement. The Proof of distribution of the Notice is
to be filed by the parties in conjunction with the motion for an
order granting final approval of the Settlement.
A final approval hearing will be held on Oct. 19, 2018, at 10:00
a.m. before Magistrate Judge Erica P. Grosjean. The motion for
final approval of class action settlement will be filed 28 days in
advance of the final approval hearing, in accordance with Local
Rule 230. Not later than 14 calendar days before the deadline for
objection or exclusion, the Plaintiffs will file a motion for
approval of their Class Counsels attorneys' fees and costs. The
motion for the Class Counsel attorneys' fees and costs will be
heard concurrently with the motion for final approval on Oct. 19,
2018.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/J2psGS from Leagle.com.
Carmela Mora, on behalf of herself and all others similarly
situated, Plaintiff, represented by Mario Martinez --
mmartinez@farmworker.com -- Martinez Aguilasocho & Lynch Aplc, Eric
Sebastian Trabucco -- etrabucco@themmlawfirm.com -- Mallison &
Martinez, Hector Rodriguez Martinez -- HectorM@TheMMLawFirm.com --
Mallison & Martinez, Joseph Donald Sutton --
JSutton@TheMMLawFirm.com -- Mallison & Martinez, Marco A. Palau --
MPalau@TheMMLawFirm.com -- Mallison & Martinez & Stanley S.
Mallison -- stanm@mallisonlaw.com -- Mallison & Martinez.
Cal West Ag Services, Inc., Defendant, represented by Anthony Peter
Raimondo -- apr@raimondoassociates.com -- Raimondo & Associates,
Gerardo Hernandez, Jr. -- gvh@raimondoassociates.com -- Raimondo &
Associates & Thomas Elmer Campagne -- tcampagne@campagnelaw.com --
Campagne & Campagne, A Prof. Corp.
Jon Marthedal & Eric Marthedal, Defendants, represented by Thomas
Elmer Campagne -- cc@campagnelaw.com -- Campagne & Campagne, A
Prof. Corp. & Justin Thomas Campagne -- jcampagne@campagnelaw.com
-- Campagne & Campagne, A Prof. Corp.
Jon Marthedal, Counter Claimant, represented by Justin Thomas
Campagne, Campagne & Campagne, A Prof. Corp.
Cal West Ag Services, Inc., Counter Defendant, represented by
Gerardo Hernandez, Jr. -- gvh@raimondoassociates.com -- Raimondo &
Associates.
Cal West Ag Services, Inc., Counter Claimant, represented by
Anthony Peter Raimondo, Raimondo & Associates & Gerardo Hernandez,
Jr., Raimondo & Associates.
Jon Marthedal, Counter Defendant, represented by Justin Thomas
Campagne, Campagne & Campagne, A Prof. Corp.
CALAMOS ASSET: Travelers Sues to Deny Liability Coverage
--------------------------------------------------------
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, the Plaintiff, v.
CALAMOS ASSET MANAGEMENT, INC., JOHN P. CALAMOS, SR., JOHN
KOUDOUNIS, CALAMOS FAMILY PARTNERS, INC., CALAMOS PARTNERS, LLC,
and CPCM ACQUISITION, INC., the Defendants, Case No. 1:18-cv-06280
(N.D. Ill., Sep. 13, 2018), seeks declaratory relief under the
Declaratory Judgment Act.
Travelers seeks a declaration that its Select One Excess Liability
Policy No. 106619456 does not provide coverage for any settlement,
judgment, defense costs or any other purported Loss incurred by or
on behalf of the Calamos Defendants or any Insureds arising from
the lawsuits captioned: The Mangrove Partners Master Fund, Ltd. v.
Calamos Asset Management, Inc., Case No. 2017-0139, Delaware Court
of Chancery and Fair Value Investments, Inc. v. Calamos Asset
Management, Inc., Case No. 2017-0436, Delaware Court of Chancery.
Travelers also seeks a declaration that the Excess Policy does not
provide coverage for any settlement or judgment incurred by or on
behalf of the Calamos Defendants or any other Insureds arising from
the lawsuit captioned In re Calamos Asset Management, Inc.
Stockholder Litigation, Consolidated Case No. 2017-0058-JTL,
Delaware Court of Chancery.
Travelers issued the Excess Policy to the Company for the period
from October 27, 2016 through October 27, 2017, with an extended
discovery period from February 21, 2017 through February 21, 2023.
The Excess Policy affords up to $10 million in coverage, excess of
$20 million of Underlying Insurance provided by: (1) Management
Liability and Company Reimbursement Policy No. ELU-146965-16 issued
to the Company by XL Specialty Insurance Company; and (2) Policy
No. 268154065 issued to the Company by Continental Casualty
Company.
Pursuant to the Excess Policy's Insuring Agreement, as amended by
endorsement, the Excess Policy incorporates the insuring clauses,
warranties, definitions, terms, conditions, exclusions, and other
provisions contained in the Primary Policy, except as otherwise set
forth in the Excess Policy. Section 3.A. of the Excess Policy, as
amended by endorsement, provides that Travelers "shall only be
liable to make payment under this policy after the total amount of
all Underlying Limits of Liability has been paid in legal currency
by the issuers of all Underlying Insurance, any Insured(s), or any
other entity as covered loss under the Underlying Insurance, and
any applicable retention or deductible under the [Primary] Policy
has been paid by or on behalf of the Insured(s)."[BN]
Attorneys for Plaintiff:
Christopher J. Bannon, Esq.
Lindsay P. Lollio, Esq.
ARONBERG GOLDGEHN DAVIS & GARMISA
330 North Wabash Avenue, Suite 1700
Chicago, IL 60611
Telephone: (312) 755 3175
Facsimile: (312) 222 6375
E-mail: cbannon@agdglaw.com
llollio@agdglaw.com
- and -
Ronald P. Schiller, Esq.
Daniel J. Layden, Esq.
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER
One Logan Square, 27th Floor
Philadelphia, PA 19103-6993
Telephone: (215) 568 6200
Facsimile: (215) 568 0300
E-mail: rschiller@hangley.com
dlayden@hangley.com
CENTURYLINK COMMS: Prelim OK of Deal with Ariz. Landowners Denied
-----------------------------------------------------------------
In the case, Walter E. Sample, Sherry L. Earle Revocable Living
Trust, San Simon Gin Incorporated, and Lesco Enterprises
Incorporated, Plaintiffs, v. Centurylink Communications LLC, Level
3 Communications LLC, Sprint Communications Company LP, and WilTel
Communications LLC, Defendants, Case No. CV-16-00624-TUC-NVW (D.
Ariz.), Judge Neil V. Wake of the U.S. District Court for the
District of Arizona denied without prejudice the parties' Renewed
Joint Motion for Certification of Settlement Class, Preliminary
Approval of Class-Action Settlement, and Approval of Form and
Manner of Notice.
CenturyLink Communications, LLC, Level 3 Communications, LLC,
Sprint Communications Co., L.P., and WilTel Communications, LLC,
are telecommunications companies that have laid fiber-optic cable
underneath railroad rights of way throughout Arizona. Those rights
of way, which cross privately owned land, were granted to railroad
companies by the United States under the General Right of Way Act
of 1875.
The putative Plaintiff class consists of landowners who own
property adjacent to or beneath about 335 miles of the rights of
way in question. The class is represented by Walter E. Sample, the
Sherry L. Earle Revocable Living Trust, San Simon Gin, Inc., and
Lesco Enterprises, Inc. The Plaintiffs allege the Cable Companies
made deals with various railroad companies to lay fiber-optic cable
on the rights of way even though the 1875 Act grants rights of way
only for "railroad purposes."
Landowners filed class actions against telecommunication companies
over the legality of similar arrangements in a number of states.
Despite attempts to litigate and settle all the claims in one
action, two federal courts concluded those claims could not be
resolved on a nationwide class basis but needed to be litigated
state by state. As a result, landowners brought separate actions
in each state. (Id.)
In 2010, the parties in the case brought one such action in Arizona
in the Court. One year later they jointly filed a motion for class
certification and preliminary approval of a settlement agreement.
In a hearing on that motion, the Court raised several concerns
about the proposed settlement and requested additional briefing on
a number of issues, including (i) the scope of the Court's
authority under Fed. R. Civ. P. 70 to enforce a judgment against an
absentee class member Plaintiff; (ii) authority granting the Court
power to convey an easement from class members, as opposed to
simply extinguishing an existing claim, through a class action
settlement; and (iii) the scope of the Court's authority under Fed.
R. Civ. P. 23 to vest the claims administrator with final
adjudicative responsibility over class members' claims.
After the parties' supplemental briefing failed to adequately
address these concerns, the Court set a hearing to give the parties
opportunity to present argument on why the granting of easement
rights under the proposed settlement agreement should be given
preliminary approval. On Jan. 17, 2012, the parties agreed to
dismiss the action without prejudice and entered into a tolling
agreement to give them time to consider their options. The Court
granted the dismissal as required by Rule 41(a)(1)(A)(ii).
The parties proceeded to obtain class settlements in other states
for more than four years. On Sept. 22, 2016, the parties, seeking
certification and approval of the class settlement they had
withdrawn in 2012, filed the present action in the Tucson Division
of the Court. It was assigned to another judge in the Tucson
Division but later transferred to the undersigned judge on Feb. 9,
2017, as required by Local Rule LRCiv 3.7(a)(2).
A Joint Motion for Class Certification was pending at the time of
the transfer. The motion was denied with leave to refile. The
parties revised their settlement agreement and now present it once
again for approval.
Under the terms of the Revised Arizona Class Settlement Agreement,
the class members who own land adjacent to the Cable Companies'
cable system will be paid $1.16 per linear foot of affected land.
In exchange, they're giving up three distinct forms of legal right.
First, they are giving up damages for past trespass. Second, they
are permanently giving up their rights against continuation of that
same trespass. Third, the Cable Companies will acquire the right
to expand their intrusion beyond what it has been and now is. In
sum, the class members must release the Cable Companies from
virtually all claims related to the Telecommunications Cable
System.
The parties' proposed notice to the class members says any court
order granting final approval will be recorded in all current
property owners' chains of title, even if those owners do nothing.
The class members have 45 days from the date preliminary notice is
mailed to object or opt out. If in the reasonable discretion of
any Cable Company, an excessive number of the class members opt
out, each Cable Company has a right to withdraw prior to the final
Fairness Hearing. In short, under the current Settlement
Agreement, the class members who do not opt out will be forced to
give up property greater than necessary to entitle the Cable
Companies to continue their past and current level of trespass.
The other terms of the Settlement Agreement are fairly evenhanded.
A class member must prove a claim for benefits by providing the
Claims Administrator, a third-party agency, with a copy of a deed
or certificate of title. The member must submit a claim form and a
release of claims, and the Claims Administrator will determine
whether the member is entitled to compensation. The compensation
will be prorated according to the amount of time the class member
owned a parcel from the date the cable was installed to the end of
the compensation period. The Claims Administrator must process a
claim within 120 days of its submission. The Cable Companies can
contest a claim, and the Claims Administrator has ultimate
authority, without review of any kind, to determine which claims
are valid.
The class representatives may apply for an incentive award of
$1,300, except Lesco Enterprises, Inc., which qualifies for $3,200.
The class counsel may receive an award of attorneys' fees not to
exceed $903,000, an award to which the Cable Companies will not
object. Each Cable Company has an ongoing obligation to keep the
settlement account funded. The Cable Companies must also pay all
administrative costs and claims-processing expenses. The parties
estimate those costs will be approximately $863,000.
Judge Wake denied without prejudice the Renewed Joint Motion for
Certification of Settlement Class, Preliminary Approval of
Class-Action Settlement, and Approval of Form and Manner of Notice.
He specifically does not preliminarily approve: (i) the transfer
of an easement, however styled, from the class members that exceeds
a property interest necessary to validate the current level of
trespass; and (ii) the term that the class members must opt out of
the class before the final hearing on and the approval of class
certification and the Settlement Agreement. The parties may
re-urge a revised motion.
The Judge set a status conference on Sept. 27, 2018, at 11:00 a.m.
to discuss how the parties wish to proceed. Out-of-state counsel
may appear telephonically by notifying the Court no later than
Sept. 24, 2018. The Counsel appearing telephonically must join a
conference call and then place a call as a group, five minutes
prior to the status conference, to (602) 322-7640. All the counsel
appearing telephonically must participate from a landline.
A full-text copy of the Court's Aug. 21, 2018 Order is available at
https://is.gd/zfGXgl from Leagle.com.
Walter E Sample, for themselves and all others similarly situated,
Sherry L Earle Revocable Living Trust, for themselves and all
others similarly situated, San Simon Gin Incorporated, for
themselves and all others similarly situated & Lesco Enterprises
Incorporated, for themselves and all others similarly situated,
Plaintiffs, represented by Dan Millea -- dmillea@zelle.com -- Zelle
Hofmann Voelbel & Mason LLP & John Dean Curtis, II --
jcurtis@bcattorneys.com -- Burch & Cracchiolo PA.
Centurylink Communications LLC, Defendant, represented by
Christopher J. Koenigs -- ckoenigs@shermanhoward.com -- Sherman &
Howard LLC, Michael B. Carroll -- mcarroll@shermanhoward.com --
Sherman & Howard LLC & Michael W. Wright --
mwright@shermanhoward.com -- Sherman & Howard LLC.
Level 3 Communications LLC & WilTel Communications LLC, Defendants,
represented by E. Scott Dosek -- scott@doseklaw.com -- Dosek Law
Firm PLLC & Joseph Edward Jones -- jjones@fraserstryker.com --
Fraser Stryker PC LLO.
Sprint Communications Company LP, Defendant, represented by Carrie
Marie Francis -- carrie.francis@stinson.com -- Stinson Leonard
Street LLP, J. Emmett Logan -- emmett.logan@stinson.com -- Stinson
Leonard Street LLP & Michael Lee Parrish --
mike.parrish@stinson.com -- Stinson Leonard Street LLP.
CHARLES SCHWAB: Appeal in Total Bond Market Fund Lawsuit Pending
----------------------------------------------------------------
The Charles Schwab Corporation disclosed in its Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that plaintiff's appeal to the Ninth
Circuit in the Total Bond Market Fund Litigation remains pending.
On August 28, 2008, a class action lawsuit was filed in the U.S.
District Court for the Northern District of California on behalf of
investors in the Schwab Total Bond Market Fund(TM). The lawsuit,
which alleged violations of state law and federal securities law in
connection with the fund's investment policy, named CSIM, Schwab
Investments (registrant and issuer of the fund's shares), and
certain current and former fund trustees as defendants.
Allegations include that the fund improperly deviated from its
stated investment objectives by investing in collateralized
mortgage obligations (CMOs) and investing more than 25% of fund
assets in CMOs and mortgage-backed securities without obtaining a
fundholder vote. Plaintiff seeks unspecified compensatory and
rescission damages, unspecified equitable and injunctive relief,
costs, and attorneys' fees on behalf of a putative class of
investors who held shares as of August 31, 2007, and a putative
class of investors who purchased the shares between September 1,
2017 and February 27, 2009.
Plaintiff's federal securities law claim and certain of plaintiff's
state law claims were dismissed. On August 8, 2011, the court
dismissed plaintiff's remaining claims with prejudice.
Plaintiff appealed to the Ninth Circuit, which issued a ruling on
March 9, 2015 reversing the district court's dismissal of the case
and remanding the case for further proceedings. Plaintiff filed a
fourth amended complaint on June 25, 2015, and in decisions issued
October 6, 2015 and February 23, 2016, the court dismissed all
claims with prejudice. Plaintiff has appealed to the Ninth
Circuit, where the case remains pending.
The Charles Schwab Corporation (CSC) is a savings and loan holding
company engaged, through its subsidiaries (collectively referred to
as "Schwab" or the "Company"), in wealth management, securities
brokerage, banking, asset management, custody, and financial
advisory services. The company is based in San Francisco,
California.
CHIPOTLE MEXICAN: Judge Revives Fight Over "G-M-Over It" Ad
-----------------------------------------------------------
Maria Dinzeo, writing for Courthouse News, reported that
reconsidering his previous dismissal, a federal judge has decided
to advance a class action accusing Chipotle Mexican Grill of
falsely advertising its food as made from only non-GMO
ingredients.
U.S. District Judge Haywood Gilliam Jr. said he'd changed his mind
in light of Davidson v. Kimberly-Clark Corp., a recent case
involving supposedly "flushable" toilet wipes. In that case, the
Ninth Circuit held that under some circumstances it may be possible
for a consumer to seek injunctive relief after already buying a
product and knowing or suspecting the label or advertising to be
false.
Gilliam said that situation applies to this case, in which several
Chipotle customers sued after eating at the chain.
"Importantly, the Ninth Circuit's conclusion is narrower than a
blanket conclusion that plaintiffs seeking injunctive relief in
mislabeling class actions always have standing," he wrote in the
Sept. 29 order.
The case was originally brought by Colleen Gallagher in August
2015. She claimed Chipotle's much-touted "Food With Integrity"
campaign, which promoted Chipotle as the first fast food chain in
the United States to use only ingredients derived from
non-genetically modified sources. But according to Gallagher,
Chipotle's tacos, burritos, sour cream and cheese all come from
cows fed with genetically modified feed.
Gallagher dropped out of the case in April 2016, and Gilliam
dismissed it. But another group of Chipotle customers -- Martin
Schneider, Sarah Deigert, Theresa Gamage, and Nadia Parikka -- took
up the fight and filed another class action later that month, which
Gilliam also dismissed for lack of standing.
But, Gilliam granted the plaintiffs' motion for reconsideration and
denied Chipotle's motion for summary judgment.
"Plaintiffs have offered sufficient evidence to create a disputed
issue of material fact that named plaintiffs would not have
purchased the Chipotle meat and/or dairy products were it not for
the allegedly misleading branding," he wrote.
Gilliam said Chipotle hadn't shown the plaintiffs weren't harmed by
the alleged misleading campaign and rejected the restaurant's
argument the plaintiffs failed to show they paid a premium for the
supposedly non-GMO food, accepting a report from economic expert
Dr. Jon Krosnick.
"Dr. Krosnick's report is relevant to plaintiffs' theory that
Chipotle, by displaying 'non-GMO' representations, misled consumers
into believing that the meat and dairy products came from animals
that did not consume GMO feed," Gilliam wrote. "The report
therefore provides extrinsic evidence of some weight that a
reasonable consumer would pay less for Defendant's products if not
for the alleged misrepresentation. Whether or not a jury is likely
to find the evidence persuasive, this is sufficient to present a
genuine issue of material fact as to whether plaintiffs have
suffered economic harm."
Gilliam also said the fact that Chipotle took down its non-GMO ads
does not render the case moot, writing, "Defendant has not met this
high burden by demonstrating that the alleged misrepresentations
have totally and irrefutably ceased."
The judge also certified three separate classes of customers in
California, Maryland and New York who bought Chipotle products
between April 27, 2015, and June 30, 2016.
In an e-mail, Chipotle spokesperson Laurie Schawlow said the chain
doesn't comment on pending litigation.
Class attorney Mario Man-Lung Choi did not immediately respond to
an email seeking comment.
COLA-COLA: Nelson Files Product Liability Suit in S.D. California
-----------------------------------------------------------------
A class action lawsuit has been filed against The Coca-Cola
Company. The case is styled as Karen Nelson individually, and on
behalf of all others similarly situated, Plaintiff v. The Coca-Cola
Company, Defendant, Case No. 3:18-cv-02225-H-AGS (S.D. Cal., Sept.
25, 2018).
The nature of suit is stated as Tort Product Liability.
The Coca-Cola Company is an American corporation, and manufacturer,
retailer, and marketer of nonalcoholic beverage concentrates and
syrups. The company is best known for its flagship product
Coca-Cola, invented in 1886 by pharmacist John Stith Pemberton in
Atlanta, Georgia.[BN]
The Plaintiff is represented by:
Timothy G. Blood
Blood Hurst & O'Reardon, LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Phone: (619) 338-1100
Fax: (619) 338-1101
Email: tblood@bholaw.com
COLUMBIA GAS: Kyros Law Files Class Action Lawsuit
--------------------------------------------------
Kyros Law Offices is alerting residents of the Massachusetts
communities of Lawrence, North Andover and Andover that were
affected by the Columbia Gas over-pressurization disaster that they
may be entitled to file a legal claim.
Lawrence, North Andover or Andover MA residents that have been
affected by the Columbia Gas disaster are urged to contact our law
firm immediately to protect their rights. Visit our Columbia Gas
Disaster Class Action Lawsuit page or call 1-800-934-2921 to speak
to someone about your case.
On September 13th, 2018, Columbia Gas customers in the
Massachusetts communities of Lawrence, North Andover and Andover
were rocked by dozens of house explosions and fires. As a result of
this incident, authorities ordered the evacuation of thousands of
residents from their homes, and numerous residents were seriously
injured -- and at least one person died. According to media
reports, this incident was as a result of natural gas supplier
Columbia Gas sending over-pressurized gas down their lines.
Kyros Law Offices urges Lawrence, North Andover or Andover MA
residents that have been affected by the Columbia Gas disaster to
contact our law firm immediately to protect their rights. [GN]
COMPASS GROUP USA: Denied Johnson OT Pay for Off-the-Clock Work
---------------------------------------------------------------
Regina Johnson, individually, and on behalf of others similarly
situated, Plaintiff, v. Compass Group USA, Chartwells School Dining
Services, Inc. and Compass 2K12 Services, LLC, Defendants, Case No.
18-cv-13830, (D. N.J., September 12, 2018) seeks to recover unpaid
overtime wages, liquidated damages, and reasonable attorneys' fees
and costs for violation of the Fair Labor Standards Act as well as
pre-judgment interest under the New Jersey Wage and Hour Law and
the New Jersey Wage Payment Law.
Defendants are in the dining service industry, serving food in
universities and colleges in the academic community. They jointly
employed Johnson as a Food Service Worker from approximately
September 2013 through the present.
Johnson worked in excess of forty hours in a workweek without being
paid an overtime premium at a rate not less than one and one half
times her regular rate of pay, notes the complaint. [BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas R. Conlon, Esq.
JTB LAW GROUP, LLC
155 2nd St., Suite 4
Jersey City, NJ 07302
Tel: (877) 561-0000
Fax: (855) 582-5297
Email: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
CONCORDE CAREER: Sullivan Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Concorde Career
Colleges, Inc. The case is styled as Phillip Sullivan, Jr. on
behalf of himself and all others similarly situated, Plaintiff v.
Concorde Career Colleges, Inc., Defendant, Case No. 1:18-cv-08795
(S.D. N.Y., Sept. 25, 2018).
The Plaintiff filed the case under the American with Disabilities
Act.
Concorde Career Colleges, Inc. owns and operates postsecondary
institutions that offer vocational career training programs in the
field of healthcare in the United States. The company provides a
range of healthcare education programs that are intended to provide
students with the knowledge and job skills required for employment
in various healthcare professions.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Phone: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
CRAFT BREW: Class Certification Order Redacted
----------------------------------------------
In the case, Theodore Broomfield, et al v. Craft Brew Alliance,
Inc. et al., the Hon. Beth Labson Freeman has entered an order
granting Plaintiffs' Motion to Certify Class. Judge Freeman also
entered a separate order redacting the Class Certification Order.
"The Court's Order Granting Plaintiffs’ Motion to Certify Class
has been filed under seal because it may contain information that
the Court previously allowed to be filed under seal due to its
highly confidential and business-sensitive nature. The parties are
ordered to meet and confer by no later than October 3, 2018 and
submit proposed redactions to the Court’s order (to the extent
any redaction is required), as well as supporting declaration(s)
and a proposed order. If no proposed redactions are received by
11:59 p.m. on October 3, 2018, the Court shall unseal the order in
its entirety," the Redaction Order stated.
According to Craft Brew's Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2018, two lawsuits, Sara Cilloni and Simone Zimmer v. Craft Brew
Alliance, Inc., and Theodore Broomfield v. Kona Brewing Co. LLC,
Kona Brew Enterprises, LLP, Kona Brewery LLC, and Craft Brew
Alliance, Inc., were filed in the United States District Court for
the Northern Division of California on February 28, 2017 and March
6, 2017, respectively. On April 7, 2017, the two lawsuits were
consolidated into a single complaint under the Broomfield case.
The consolidated lawsuit purports to be a class action brought on
behalf of all persons who purchased Kona Brewing Company beer
within the relevant statute of limitations period. The lawsuit
alleges that the defendants misled customers regarding the state in
which Kona Brewing Company beers are manufactured and in describing
Kona Brewing Company beer as "craft beer."
The Company said, "We intend to vigorously defend against the
foregoing action and, on April 28, 2017, we filed a motion to
dismiss the complaint. The motion to dismiss was granted in part
and denied in part on September 1, 2017. A hearing on class
certification [was] scheduled for September 6, 2018. We have not
recorded any liabilities with respect to the claims."
Craft Brew Alliance, Inc. ("CBA") is the sixth largest craft
brewing company in the U.S. and a leader in brewing, branding, and
bringing to market world-class American craft beers.
CRONOS GROUP: Pomerantz Law Files Class Action
----------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against Cronos Group Inc. and certain of its officers. The class
action, filed in United States District Court, Southern District of
New York, and index under 18-cv-08406, is on behalf of a class
consisting of all persons other than Defendants who purchased or
otherwise acquired Cronos securities between August 21, 2018 and
August 30, 2018, both dates inclusive (the "Class Period"), seeking
to recover damages caused by Defendants' violations of the federal
securities laws and to pursue remedies under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
and Rule 10b-5 promulgated thereunder, against the Company and
certain of its top officials.
If you are a shareholder who purchased Cronos securities between
August 21, 2018, and August 30, 2018, both dates inclusive, you
have until November 5, 2018, to ask the Court to appoint you as
Lead Plaintiff for the class. A copy of the Complaint can be
obtained at www.pomerantzlaw.com. To discuss this action, contact
Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Cronos is a cannabis company. It is incorporated under the laws of
Ontario, Canada with its headquarters in Toronto, Ontario.
On August 21, 2018, Cronos issued a press release entitled "Cronos
Group Inc. Announces Provincial Supply Agreements." Therein, the
Company, in relevant part, advised investors that Cronos had
entered into distribution agreements with several Canadian
provinces.
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the size of Cronos's
distribution agreements with Canadian provinces announced on August
21, 2018 was relatively small; and (ii) as a result, Cronos's
public statements were materially false and misleading at all
relevant times.
On August 30, 2018, Citron Research published an article entitled
"Cronos: The Dark Side of the Cannabis Space," alleging, among
other things, that Cronos has been "deceiving the investing public
by purposely not disclosing the size of its distribution agreements
with provinces -- unlike every other major cannabis player" and
that this was because "the agreements are so small that they could
never justify the premium investors are paying for the stock."
On this news, Cronos's stock price fell $3.62 per share, or over
28%, to close at $9.12 per share on August 30, 2018, on usually
heavy trading volume.
Robert S. Willoughby, Esq.
Pomerantz LLP
Telephone: 888-476-6529 ext. 9980
Website: www.pomerantzlaw.com
Email: rswilloughby@pomlaw.com [GN]
DARP INC: Fochtman et al. Seek to Certify Class in Labor Suit
-------------------------------------------------------------
In the lawsuit styled MARK FOCHTMAN, CORBY SHUMATE, MICHAEL SPEARS,
ANDREW DANIEL, FABIAN AGUILAR, and SLOAN SIMMS individually and on
behalf of all others similarly situated, the PLAINTIFFS v. DARP,
INC., HENDREN PLASTICS, INC., and JOHN DOES 1-29, the DEFENDANTS,
Case No. 5:18-cv-05047-TLB (W.D. Ark.) the Plaintiffs ask the Court
for an order:
1. certifying a class of:
"all individuals who were DARP participants at any time
from October 23, 2014 until the present, who worked for
Hendren Plastics, Inc. in the State of Arkansas during
their time at DARP";
2. appointing Mark Fochtman, Corby Shumate, Michael Spears,
Andrew Daniel, Fabian Aguilar, and Sloan Simms as class
Representatives;
3. appointing Holleman & Associates, P.A. as class counsel.
The case is a class action for violations of the Arkansas Minimum
Wage Act. The Defendant DARP, Inc. claims to operate counseling and
rehabilitation services. Instead of providing these services, DARP
force its charges to toil long hours in dirty and dangerous jobs
for no pay at local manufacturing businesses, including Defendant
Hendren Plastics, Inc.[CC]
DAVIS, CA: Ignacio Files Suit Under Fair Housing Act
----------------------------------------------------
A class action lawsuit has been filed against the City of Davis.
The case is styled as Samuel Ignacio a Filipino/Hispanic man, for
himself and all those similarly situated, Plaintiff v. City of
Davis
a municipality, Binning Ranch Holding Company LLC, a California
Corporation, J. David Taormino, Defendants, Case No.
2:18-cv-02607-MCE-EFB (E.D. Cal., Sept. 24, 2018).
The Plaintiff filed the case under the Fair Housing Act.
Davis, formerly known as Davisville, is a city in the U.S. state of
California and the most populous city in Yolo County. It had a
population of 65,622 in 2010, not including the on-campus
population of the University of California, Davis, which was over
9,400 in 2016.
Binning Ranch Holding Company LLC owns real property in Yolo County
which J. David Taormino seeks to annex and develop as a project
that would provide up to 560 dwelling units and 4.5 miles of off
street biking and walking paths within the Project area.[BN]
The Plaintiff is represented by:
Mark E. Merin, Esq.
Law Office of Mark E. Merin
1010 F Street, Suite 300
Sacramento, CA 95814
Phone: (916) 443-6911
Fax: (916) 447-8336
Email: mark@markmerin.com
DR PEPPER: 3rd Amended Becerra Suit Dismissed
---------------------------------------------
In the case, SHANA BECERRA, Plaintiff, v. DR PEPPER/SEVEN UP, INC.,
Defendant, Case No. 17-cv-05921-WHO (N.D. Cal.), Judge William H.
Orrick of the U.S. District Court for the Northern District of
California granted without leave to amend Dr Pepper's motion to
dismiss the Third Amended Complaint.
On Oct. 16, 2017, Becerra filed the original class action complaint
in the case. She asserted claims on behalf of herself and a class
of similarly situated consumers in California, alleging false and
misleading advertising in violation of California's False
Advertising Law ("FAL"), Consumers Legal Remedies Act ("CLRA"), and
Unfair Competition Law ("UCL"), as well as breach of both express
and implied warranty.
Becerra alleges that she thought Diet Dr Pepper would help her lose
or maintain a healthy weight because of the term "diet" in its
label and the term's association with no sugar or calories. She
brings the putative class action on behalf of herself and a
California class of similarly-situated consumers for damages and
equitable relief, and seeks an injunction to force defendant to
stop marketing products as "diet."
Shortly after filing the initial complaint, she amended the
complaint to correctly identify the Defendant in the action. On
Dec. 22, 2017, Dr Pepper moved to dismiss the first amended
complaint and on Jan. 3, 2018, filed a motion to transfer venue.
Becerra filed a second amended complaint on Jan. 3, 2018, adding
facts and reasserting her original consumer protection and warranty
claims. Dr Pepper then filed a motion to dismiss the second
amended complaint and that motion, along with the then-pending
motion to transfer, was heard on March 28, 2018.
Judge Orrick issued an Order Denying Motion to Transfer and
Granting Motion to Dismiss the Second Amended Complaint on March
30, 2018, and granted Becerra leave to file a TAC. Relevant in the
instant motion, his prior Order held that Becerra's claims were not
expressly preempted by the Nutrition Labeling and Education Act of
1990 ("NLEA") since the state laws underlying Becerra's claims --
California's UCL, FAL, CLRA, and Sherman Food, Drug, and Cosmetic
Law -- imposed identical requirements to the federal statute. He
also found that Becerra did not plead a plausible claim that
reasonable consumers would be misled by the term "diet" in the diet
soft drink context. The scientific studies on aspartame relied on
by Becerra did not save her false and misleading claims because
those studies exhibited correlations but did not support
Plaintiff's position that aspartame causes weight gain.
On April 30, 2018, Becerra filed her TAC against Dr Pepper. The
TAC rests on two key factual claims: that the term "diet"
communicates weight loss or weight management, and that the
aspartame in diet soft drinks is likely to cause weight gain.
Based on these claims, Becerra alleges that it is misleading to use
the term "diet" in the "Diet Dr Pepper" brand name, and deceptive
to market it as such when Diet Dr Pepper is not a weight loss or
healthy weight management product.
The Defendant moves to dismiss the TAC in its entirety May 14,
2018. It moves to dismiss the TAC, arguing that despite the
amendments made by Becerra: (i) the TAC still fails to allege facts
establishing that reasonable consumers are likely to be deceived by
the brand name; (ii) Becerra's claims are preempted by federal law;
(iii) Becerra fails to meet the heightened pleading standards for
her fraud-based claims; and (iv) the warranty claim cannot stand
because "diet" as used in the brand name is not an actionable
misrepresentation.
Considering the allegations in the TAC, Judge Orrick still
concludes it is not plausible that reasonable consumers would
believe consuming Diet Dr Pepper leads to weight loss or healthy
weight management absent a change in lifestyle. Becerra does not
plausibly allege that the term "diet" as used in "Diet Dr Pepper"
brand name is false or misleading, or that the science supports
causation between aspartame and weight gain. Dr Pepper's motion to
dismiss the TAC is granted without leave to amend. Given that this
was Becerra's fourth attempt to state a claim, her counsel agreed
at the hearing on the Defendant's motion that further efforts to
amend would be futile.
A full-text copy of the Court's Aug. 21, 2018 Order is available at
https://is.gd/7DJznh from Leagle.com.
Ms. Shana Becerra, on behalf of herself, all others similarly
situated, and the general public, Plaintiff, represented by Jack
Fitzgerald -- jack@jackfitzgeraldlaw.com -- The Law Office of Jack
Fitzgerald, PC, Andrew B. Sacks -- asacks@sackslaw.com -- Sacks
Weston Diamond, LLC, pro hac vice, John Kerry Weston --
jweston@sackslaw.com -- Sacks Weston Diamond, LLC, pro hac vice,
Melanie Rae Persinger -- melanie@jackfitzgeraldlaw.com -- The Law
Office of Jack Fitzgerald, PC & Trevor Matthew Flynn --
trevor@jackfitzgeraldlaw.com -- Law Office of Jack Fitzgerald, PC.
Dr Pepper/Seven Up, Inc., Defendant, represented by Ariel D. House
-- ariel.house@bakerbotts.com -- Baker Botts LLP, Monica Hughes
Smith -- monica.smith@bakerbotts.com -- Baker Botts L.L.P., pro hac
vice & Stuart Christopher Plunkett --
stuart.plunkett@bakerbotts.com -- Baker Botts L.L.P.
DTG OPERATIONS: $175K Attys' Fees Awarded in Bendon Suit
--------------------------------------------------------
Judge Fernando M. Olguin of the U.S. District Court for the Central
District of California approved the requested attorney's fees,
costs and incentive award in the case, MICHELLE BENDON, ROGER
BERTRAND, CYNTHIA ELDER, BRYCE EVANS, DAVID PAQUETTE and EDWIN
HERRERA, individuals on behalf of themselves and on behalf of all
other persons similarly situated, v. DTG OPERATIONS, INC.,
Defendant, Case No. ED CV 16-0861 FMO (AGRx) (C.D. Cal.).
Pursuant to the Court's Order Re: Final Approval of Class Action
Settlement; Approval of Attorney's Fees, Costs & Incentive Award,
filed contemporaneously with the Judgment, the Judge ordered that,
in accordance with the terms of the Settlement Agreement, (i) the
named Plaintiffs will be paid an incentive payment of $5,000 each;
(ii) the class counsel will be paid $175,000 in attorney's fees,
and $15,000 in costs; and (iii) the Claims Administrator,
Simpluris, will be paid $14,999 for its fees and expenses.
Except as to any class members who have validly and timely
requested exclusion, the Judge dismissed with prejudice the action,
with all parties to bear their own fees and costs except as set
forth in the Judgment and in the prior orders of the Court.
A full-text copy of the Court's April 22, 2018 Judgment is
available at https://is.gd/6BUy1z from Leagle.com.
Michelle Bendon, individuals on behalf of themselves and on behalf
of all persons similarly situated, Cynthia Elder, individuals on
behalf of themselves and on behalf of all persons similarly
situated, Bryce Evans, individuals on behalf of themselves and on
behalf of all persons similarly situated, David Paquette,
individuals on behalf of themselves and on behalf of all persons
similarly situated, Edwin Herrera, individuals on behalf of
themselves and on behalf of all persons similarly situated & Roger
Bertrand, individuals on behalf of themselves and on behalf of all
persons similarly situated, Plaintiffs, represented by Aparajit
Bhowmik -- aj@bamlawlj.com -- Blumenthal Nordrehaug and Bhowmik
LLP, Kyle R. Nordrehaug -- kyle@bamlawca.com -- Blumenthal
Nordrehaug and Bhowmik, Norman B. Blumenthal -- norm@bamlawca.com
-- Blumenthal Nordrehaug and Bhowmik LLP, Molly Ann DeSario,
Blumental Nordrehaug and Bhowmik LLP, Ruchira Piya Mukherjee --
piya@bamlawlj.com -- Blumenthal Nordrehaug and Bhowmik LLP &
Victoria Bree Rivapalacio -- victoria@bamlawca.com -- Blumenthal
Nordrehaug and Bhowmik LLP.
Bryce Bertrand, Plaintiff, represented by Aparajit Bhowmik ,
Blumenthal Nordrehaug and Bhowmik LLP, Kyle R. Nordrehaug,
Blumenthal Nordrehaug and Bhowmik, Norman B. Blumenthal, Blumenthal
Nordrehaug and Bhowmik LLP, Molly Ann DeSario, Blumental Nordrehaug
and Bhowmik LLP & Ruchira Piya Mukherjee, Blumenthal Nordrehaug and
Bhowmik LLP.
DTG Operations, Inc., a Corporation, Defendant, represented by
Frank B. Shuster -- fshuster@constangy.com -- Constangy Brooks
Smith and Prophete LLP, pro hac vice, Irene Scholl Tatevosyan --
itatevosyan@nixonpeabody.com -- Nixon Peabody LLP & Robert A.
Dolinko -- rdolinko@nixonpeabody.com -- Nixon Peabody LLP.
EASTERN BANK: Faces Suit over Unlawful Post-Repossession Notices
----------------------------------------------------------------
LIAM THOMSON, individually and on behalf of all others similarly
situated, Plaintiff v. EASTERN BANK, Defendant, Case No. 18-3667D
(Mass. Cmmw. Super., Suffolk Cty., Aug. 24, 2018) is an action
against the Defendant for unlawful debt collection and car
repossession practices of the Defendant.
The Plaintiff alleges in the complaint that after the Defendant
repossess the Plaintiff's motor vehicle, the Defendant sent the
Plaintiff post-repossession notices that failed to include key
provisions required by the Massachusetts law.
Eastern Bank provides banking products and services to individuals,
families, executives, small-business owners, and not-for-profit
organizations in eastern Massachusetts, and southern and coastal
New Hampshire. Eastern Bank was formerly known as Eastern Savings
Bank and changed its name to Eastern Bank in October 1989. The
company was founded in 1818 and is based in Boston, Massachusetts
with branches in Massachusetts and New Hampshire. Eastern Bank
operates as a subsidiary of Eastern Bank Corporation. [BN]
The Plaintiff is represented by:
Raven Moeslinger, Esq.
Nicholas F. Ortiz, Esq.
LAW OFFICE OF NICHOLS F. ORTIZ, P.C.
99 High Street, Suite 304
Boston, MA 02110
Telephone: (617) 338-9400
E-mail: rm@mass-legal.com
EDR ASSETS: Court Denies Bid to Dismiss Hess Class Suit
-------------------------------------------------------
In the case, MICHELE E. HESS, JILL GOLDRING, MATTHEW HEAP, RUXANDRA
HEAP, CRAIG GIBSON, JR., A. MICHELLE PACE and ANNA MILLER, on
behalf of themselves and all others similarly situated, Plaintiffs,
v. EDR ASSETS LLC, and PARKOFF OPERATING CORP., Defendants, Docket
No. 160494/2017 (N.Y. Sup.), Judge Frank P. Nervo of the Supreme
Court, New York County, (i) denied the Defendants motion, prior to
answering the complaint, to dismiss the Plaintiffs' first, second
and third causes of action, and the Plaintiffs' class action
allegations; and (ii) denied without prejudice the Plaintiffs'
cross-motion, pursuant to CPLR 901, et seq., to certify the class
and sub-class.
The Defendants allege that the class action allegations must be
dismissed under CPLR 3211 (a) (7) because the Plaintiffs have not
adequately pleaded the prerequisites to class action treatment
required by CPLR Sections 901 and 902, and that the cause of action
is barred by documentary evidence. They allege that the first,
second and third causes of action must be dismissed pursuant to
CPLR 3211 (a) (1) and 3211 (a) (7) on the grounds that they are
barred by documentary evidence and that they fail to state a cause
of action.
The Plaintiffs cross-move, pursuant to CPLR 901, et seq., to
certify the class and sub-class. The complaint alleges that the
Defendants failed to register the apartments as rent stabilized
units with the New York State Division of Housing and Community
Renewal ("DHCR") and to offer leases at the lawful rent stabilized
levels to the Plaintiffs and the proposed class and sub-class. The
class and the sub-class consist of current and former residents in
defendants building. The complaint alleges that instead of rent
stabilized leases, the Defendants furnished market value leases.
In their first cause of action, on behalf of the class, the
Plaintiffs claim that in addition to rent stabilized leases, they
are entitled to monetary damages in the amount of rent that they
were overcharged as a result of paying fair market rent. In the
second cause of action, on behalf of the sub-class of prior
tenants, they seek a declaration that they and the members of the
sub-class were subject to a rent overcharge and that they are
entitled to a determination of the amount of rent they should have
been charged. In the third cause of action for declaratory relief,
the Plaintiffs allege that the Defendants' actions were a willful
attempt to remove the Plaintiffs and members of the sub-class from
the protection of rent stabilization. In addition to the class
certification, they seek a declaration of the amount of lawful
rent, monetary damages for the overcharge, injunctive relief
enjoining the Defendants from violating the rent stabilization law
and disgorgement of their profits from rent overcharges.
The Defendants first argue that the class allegations must be
dismissed as a matter of law. They argue that although they
reserve the right to oppose any motion for class certification in
the event their motion to dismiss is denied, the Court should
dismiss those allegations now. In a post-submission letter to the
Court, the Plaintiffs, relying on Maddicks v. Big City Properties,
LLC, ask the Court to decide the issue now.
They next argue that DHCR has already adjudicated the question of
whether the apartments are subject to rent stabilization and
plaintiffs concede that defendant has offered rent stabilized
leases. Finally, the Defendants argue that the rent overcharge
claims should be dismissed. They argue, the overcharge claims
should be dismissed for failure to state a cause of action. They
allege that the complaint merely asks for leases in a form
prescribed by DHCR and containing such terms as required by that
agency.
Judge Nervo, at this time, will neither dismiss the class action
allegations nor grant the cross-motion to certify the class.
However, at the appropriate time, he may certify the case as a
class action. Therefore, he will not invoke the doctrine of
primary jurisdiction, as DHCR cannot adjudicate matters on a class
basis.
The Judge finds that while he may examine affidavits in support of
a motion to dismiss under CPLR 3211(a)(7) to determine whether a
plaintiff has not merely alleged a cause of action, but rather
possesses a cause of action, the Defendants in the case have not
submitted any affidavits that demonstrate that the Plaintiffs have
no cause of action. Their memorandums of law similarly do not
demonstrate that the Plaintiffs do not possess a cause of action.
In examining the complaint, he is satisfied that the Plaintiffs
plead facts that establish their causes of action. He finds that
the complaint raises the question of how the legal regulated rent
should be determined. It alleges facts that show there is an issue
of whether the rents should be adjusted retroactively to the
inception of the various tenancies at issue in the case. In
addition to showing possible past and present rent overcharges, he
complaint alleges facts that raise the question of whether leases
are in proper form, that is, one promulgated by the DHCR, were
provided to the Plaintiffs. Therefore, the branch of the motion
seeking dismissal based on documentary evidence and for failure to
state a cause of action is denied.
The remaining issue is whether to certify this action as a class
action. The Judge declines to do so, as issue has not been joined
and there are questions of whether the named Plaintiff, Hess, is
the appropriate class representative. There may be arguments
contrary to those raised by the opposition that may be fully
addressed after discovery. At that time, if so advised, the
Plaintiffs may make a new motion for class certification.
Therefore, the Plaintiffs' cross-motion is denied without prejudice
to a new motion after appropriate discovery is completed.
Accordingly, Judge Nervo denied the motion to dismiss under CPLR
3211 (a) (1) and CPLR 3211 (a)(7) is denied. Within 20 days of
service of a copy of the Order with notice of entry, the Defendants
shall serve and file their verified answer. The cross-motion is
denied without prejudice to a new motion after issue is joined and
appropriate and necessary discovery is completed. The attorneys
for the parties shall report for a preliminary conference on Dec.
14, 2018, at 10:00 a.m.
A full-text copy of the Court's April 22, 2018 Decision and Order
is available at https://is.gd/NY4kYY from Leagle.com.
EKIMOTO & MORRIS: Court Strikes 4th Amended Connelly Suit
---------------------------------------------------------
In the case, CRAIG CONNELLY and KRISTINE CONNELLY, as individuals
and on behalf of all others similarly situated, Plaintiffs, v.
EKIMOTO & MORRIS, LLLC, a Hawai`i limited liability law company, as
individual entities; ASSOCIATION OF APARTMENT OWNERS OF KO OLINA
KAI GOLF ESTATES AND VILLAS, a Hawai`i corporation as individual
entities and on behalf of all others similarly situated; DOE
DEFENDANTS 1-100, Defendants, Civil No. 16-00448 LEK-KSC (D. Haw.),
Judge Leslie E. Kobayashi of the U.S. District Court for the
District of Hawaii (i) struck the Fourth Amended Complaint; and
(ii) dismissed with prejudice Counts I and III of the Third Amended
Complaint.
On May 18, 2018, the Connellys, as individuals and on behalf of all
others similarly situated, filed their Third Amended Class Action
Complaint. On July 5, 2018, the Court issued its Order Granting
Defendant Ekimoto & Morris, LLC's Motion to Dismiss Third Amended
Class Action Complaint Filed May 18, 2018. In the 7/5/18 Order,
the Court dismissed: 1) the Connellys' Fair Debt Collections
Practices Act ("FDCPA") claim against Defendants Ekimoto & Morris,
LLLC ("E&M") and Association of Apartment Owners of Ko Olina Kai
Golf Estates and Villas ("Ko Olina AOAO"); and 2) the Connellys'
claim for declaratory judgment against E&M. The dismissals were
without prejudice, and the Connellys were given until July 19, 2018
to file a fourth amended complaint.
On July 19, 2018, in response to the 7/5/18 Order, the Connellys
filed their Fourth Amended Class Action Complaint. The Connellys
added eleven new persons as the Plaintiffs and eight new
association defendants. Nothing in the 7/5/18 Order granted the
Connellys leave to add new parties. Further, the magistrate judge
previously denied the Connellys leave to add any new additional
Plaintiff class representatives or additional homeowner association
Defendants as Defendant class representative. That ruling in the
5/31/18 Order and the order denying the Connellys' motion for
reconsideration of that ruling are currently on appeal before the
Court.
On July 24, 2018, the Court issued an entering order ("7/24/18 EO")
directing the Connellys to file a statement addressing why the
Court should not dismiss the Fourth Amended Complaint without
prejudice. On Aug. 7, 2018, the Connellys filed their response to
the 7/24/18 EO. On Aug. 14, 2018, E&M filed its response to the
7/24/18 EO , and the Ko Olina AOAO filed a joinder in the E&M
Response.
The Connelly Response contends that the addition of the new
Plaintiffs to serve as the class representatives for the FDCPA
claim and the addition of a new association Defendant to correspond
with the new Plaintiffs were acceptable amendments in response to
the 7/5/18 Order. The Connelly Response also argues the addition
of the new Plaintiffs and the Defendants was appropriate under Fed.
R. Civ. P. 15.
Judge Kobayashi holds that it is the very argument the magistrate
judge rejected in the 5/31/18 Order and which is currently pending
before the Court in the Appeal. Unless and until the Court grants
the Connellys' Appeal and reverses the magistrate judge's ruling in
the 5/31/18 Order denying leave to amend, the Connellys do not have
leave to add any new parties. Because the Fourth Amended Complaint
added new parties in violation of the 7/5/18 Order and without
leave to amend, the Judge struck the Fourth Amended Complaint
struck.
The Connellys concede that they cannot amend their allegations
consistent with the Court's 7/5/18 Order to represent the class
members with regard to the FDCPA claim. Based on this concession,
the Judge holds that it is clear, upon de novo review, that the
FDCPA claim could not be saved by any amendment. The Connellys'
FDCPA (Count III of the Third Amended Complaint) is therefore
dismissed with prejudice. Because the FDCPA claim was the only
substantive claim against E&M, the Connellys' claim for declaratory
relief (Count I of the Third Amended Complaint) is also dismissed
with prejudice as to E&M.
The dismissal of these claims with prejudice does not preclude a
new Plaintiff from alleging a FDCPA claim against E&M, and a
corresponding claim for declaratory relief against E&M, if the
Connellys are granted leave to add a new Plaintiff. Whether the
Connellys will be allowed to file a fifth amended complaint will be
addressed when the Court rules on the Appeal.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/hqV1xD from Leagle.com.
Craig Connelly, individually and on behalf of all others similarly
situated & Kristine Connelly, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Chanelle M.C.
Fujimoto -- cfujimoto@imanaka-asato.com -- Imanaka Asato, LLLC,
Isam C. Khoury -- ikhoury@ckslaw.com -- Cohelan Khoury & Singer,
pro hac vice, James J. Hill -- jhill@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice, Michael L. Iosua -- miosua@imanaka-asato.com
-- Imanaka Asato, LLLC, Steven K.S. Chung --
miosua@imanaka-asato.com -- Imanaka Asato, LLLC, Timothy G. Blood
-- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP, pro hac vice,
Timothy D. Cohelan -- tcohelan@ckslaw.com -- Cohelan Khoury &
Singer, pro hac vice, Li Li , Imanaka Asato, LLLC & Margaret LeAnn
Webster, Imanaka Asato LLLC.
Maytrie Anne Greger, individually and on behalf of all others
similarly situated, Daniel F. Heu, Jr., individually and on behalf
of all others similarly situated, Shawna W. Kawasaki Heu,
individually and on behalf of all others similarly situated,
Jeffrey P. Pascua, individually and on behalf of all others
similarly situated, Greta T. Pascua, individually and on behalf of
all others similarly situated, Charles K. Puuohau, individually and
on behalf of all others similarly situated, Marlei M. A. Puuohau,
individually and on behalf of all others similarly situated,
Christopher Ruddy, individually and on behalf of all others
similarly situated, Brooke A. Takara, individually and on behalf of
all others similarly situated & Walter Maza, individually and on
behalf of all others similarly situated, Plaintiffs, represented by
Chanelle M.C. Fujimoto, Imanaka Asato, LLLC, Isam C. Khoury,
Cohelan Khoury & Singer, pro hac vice, James J. Hill, Cohelan
Khoury & Singer, pro hac vice, Michael L. Iosua, Imanaka Asato,
LLLC, Steven K.S. Chung, Imanaka Asato, LLLC & Timothy G. Blood,
Blood Hurst & O'Reardon, LLP, pro hac vice.
Ekimoto & Morris, LLLC, a Hawai'i limited liability law company, as
individual entities, Defendant, represented by Christopher T.
Goodin -- cgoodin@cades.com -- Cades Schutte LLP, Peter W. Olson --
polson@cades.com -- Cades Schutte LLP & Trisha H.S.T. Akagi --
takagi@cades.com -- Cades Schutte LLP.
AOAO Ko Olina Kai Golf Estates and Villas, a Hawai'i corporation,
as individual entities and on behalf of all others similarly
situated, Defendant, represented by David J. Minkin, McCorriston
Miller Mukai MacKinnon & Jordan K. Inafuku, McCorriston Miller
Mukai MacKinnon.
EROS INT'L: 2nd Cir. Affirms Dismissal of Amended Eisner Suit
-------------------------------------------------------------
In the case, FRED EISNER, STRAHINJA IVOŠEVIČ, Lead
Plaintiffs-Appellants, MATHEW ABRAM, individually and on behalf of
all others similarly situated, JAWED ARSANI, RAJIV SHARMA,
Consolidated Plaintiffs, VLADIMIR MALIAROV, individually and on
behalf of all others similarly situated, Plaintiffs, v. EROS
INTERNATIONAL PLC, JYOTI DESHPANDE, ANDREW HEFFERNAN, PREM
PARAMESWARAN, KISHORE LULLA, Defendants-Appellees, RISHIKA LULLA,
DAVID MAISEL, Consolidated Defendants, VIJAY AHUJA, NARESH CHANDRA,
DILIP THAKKAR, SUNIL LULLA, MICHAEL KIRKWOOD, KEN NAZ, DEUTSCHE
BANK SECURITIES, INC., MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, UBS SECURITIES LLC, JEFFERIES LLC, CREDIT SUISSE
SECURITIES (USA) LLC, EM SECURITIES LLC, Defendants, Case No.
17-3415-cv (2d Cir.), Judge Edward R. Korman of the U.S. Court of
Appeals for the Second Circuit affirmed the District Court's order
dismissing the Plaintiffs' Amended Consolidated Class Action
Complaint for failure to state a claim.
After reviewing the whole record, the Judge affirmed the District
Court's judgment for substantially the same reasons as those given
by the District Court in its Memorandum & Order on Nov. 2, 2017.
He finds the arguments raised by the Lead Plaintiffs-Appellants on
appeal to be without merit.
A full-text copy of the Court's Aug. 21, 2018 Summary Order is
available at https://is.gd/MN8gkb from Leagle.com.
DAVID J. GOLDSMITH -- dgoldsmith@labaton.com -- (Alfred L. Fatale
III -- afatale@labaton.com -- on the brief), Labaton Sucharow LLP,
New York, NY, For Lead Plaintiffs-Appellants.
STEPHEN W. TOUNTAS -- stountas@kasowitz.com -- (Michael J. Bowe --
mbowe@kasowitz.com -- on the brief), Kasowitz Benson Torres LLP,
New York, NY, For Defendants-Appellees.
ESTERO BAY HOTEL: Honeywell Files ADA Suit in M.D. Florida
----------------------------------------------------------
A class action lawsuit has been filed against Estero Bay Hotel
Company. The case is styled as Cheri Honeywell individually and on
behalf of all others similarly situated, Plaintiff v. Estero Bay
Hotel Company a Florida corporation, Defendant, Case No.
2:18-cv-00635-JES-MRM (S.D. Fla., Sept. 24, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Estero Bay Hotel Company is in the Hotels and Motels business. It
is located at 414 Crescent Street, Fort Myers, FL 33919.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group, LLC
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Phone: (954) 282-1858
Fax: (844) 786-3694
Email: jkerr@advocacypa.com
EXPRESS SCRIPTS: Olsavsky Files Suit in W.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against Express Scripts, Inc.
The case is styled as Joseph Olsavsky individually and on behalf of
all others similarly situated, Plaintiff v. Express Scripts, Inc,
Defendant, Case No. 2:18-cv-01278-RCM (W.D. Penn., Sept. 25,
2018).
The nature of suit is stated as Contract Recovery/Enforcement.
Express Scripts, Inc. offers pharmacy benefit management services.
The company provides network-pharmacy claims processing,
benefit-design consulting, drug-utilization review, formulary
management, and medical and drug data analysis services. The
company was incorporated in 1992 and is based in St. Louis,
Missouri. Express Scripts, Inc. operates as a subsidiary of Express
Scripts Holding Company.[BN]
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
Robert Peirce & Associates, P.C.
707 Grant Street, Suite 2500
Pittsburgh, PA 15219
Phone: (412) 281-7229
Fax: (412) 281-4229
Email: arihn@peircelaw.com
FIAT CHRYSLER: Hightman Files Product Liability Suit in S.D. Calif.
-------------------------------------------------------------------
A class action lawsuit has been filed against Fiat Chrysler US LLC.
The case is styled as Wendy Hightman on behalf of herself and all
others similarly situated, Plaintiff v. Fiat Chrysler US LLC, Does
1 through 10 inclusive, Defendants, Case No. 3:18-cv-02205-BEN-KSC
(S.D. Cal., Sept. 24, 2018).
The nature of suit is stated as Contract Product Liability.
Fiat Chrysler US LLC is an Italian and American multinational
corporation and is the world’s eighth largest auto maker. The
group was established in late 2014 by merging Fiat and Chrysler
into a new holding company. Fiat Chrysler Automobiles' main
headquarters are located in the Netherlands and the financial
headquarters are in London for tax purposes. The holding company is
listed on the New York Stock Exchange and Borsa Italiana in
Milan.[BN]
The Plaintiff is represented by:
David Christopher Wright, Esq.
McCune Wright Arevalo LLP
3281 E. Guasti Road, Suite 100
Ontario, CA 91761
Phone: (909) 557-1250
Fax: (909) 557-1275
Email: dcw@mccunewright.com
FLORIDA BC: Ward Seeks to Certify Two Employee Classes
------------------------------------------------------
In the lawsuit entitled RONALD WARD, individually and on behalf of
all those similary situated, the Plaintiff, vs. FLORIDA BC
HOLDINGS, LLC d/b/a SYNERGY EQUIPMENT, the Defendant, Case No.
6:18-cv-00459-CEM-GJK (M.D. Fla.), the Plaintiff asks the Court for
an order certifying classes and authorizing notice to:
"all Employees of Synergy who were: (1) employed by Synergy as
Sales Coordinators during the preceding three years; (2) were
classified as exempt from the FLSA; and (3) worked more than
forty (40) hours in a work week without being paid proper
overtime compensation"; and
"all Employees of Synergy who: (1) are or were employed by
Synergy as Sales Coordinators since November 2016; (2) worked
more than forty hours in a work week; and (3) did not receive
proper overtime because: (a) Synergy failed to include all
weekly remuneration in Sales Coordinator's regular rate of pay
when calculating the overtime rate and (b) failed to include
all hours worked when calculating overtime."[CC]
GALENA BIOPHARMA: Amended Securities Suit Dismissed
---------------------------------------------------
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey granted the Defendants' motions to dismiss the amended
case, IN RE GALENA BIOPHARMA, INC. SECURITIES LITIGATION, Case No.
2:17-cv-929-KM-JBC (D. N.J.), without prejudice to the submission
of a second amended complaint within 30 days.
The Paintiffs have filed a class-action complaint alleging
securities fraud against Galena and several of its officers or key
employees. The complaint alleges that the Defendants failed to
make appropriate disclosures under Item 303 of Regulation S-K and
therefore committed securities fraud. The Plaintiffs, holders of
Galena common stock, allege that they suffered damages because of
the Defendants' violations of securities laws. The Defendants are
Galena and several officers or key employees of Galena.
The Plaintiffs sue Mark J. Ahn, who was the President, CEO, and a
Director at Galena until his resignation effective Aug. 20, 2014;
Mark W. Schwartz, who was Galena's COO from 2011 until his
appointment as CEO, and who was President and CEO from Aug. 20,
2014 through the end of the Class Period; Ryan M. Dunlap, who was
the Vice President and CFO of Galena until his resignation
effective Dec. 31, 2015; Christopher S. Lento, who was the Senior
Vice President of Oncology Commercial Operations at Galena from
around May 2013 through Dec. 31, 2015; and Remy Bernarda, who was
Senior Vice President of Investor Relations at Galena throughout
the Class Period.
The Plaintiffs allege that the Defendants used Galena's inflated
stock price to finance its operations. On Nov. 18, 2014, Galena
entered into a purchase agreement with Lincoln Park Capital, LLC
("LPC") that gave Galena the right to sell to LPC up to $50 million
in shares of Galena's common stock over the 36-month term of the
purchase agreement. LPC initially purchased 2.5 million shares of
Galena common stock. Galena received initial net proceeds of $4.6
million. Galena received net proceeds of $8.5 million from LPC's
subsequent purchases of 4.6 million shares. During 2014 and 2015,
Galena received $2.3 million in net proceeds from the sale of 1.4
million shares of common stock through At Market Issuance Sales
Agreements. In March 2015, Galena sold units consisting of common
stock and warrants at $1.56 per unit for proceeds of $40.8 million.
The Plaintiffs claim that each of the financings was made possible
and facilitated by the artificially inflated stock price.
The Plaintiffs seek to represent a class of all persons and
entities that acquired Galena securities from Aug. 11, 2014 through
Jan. 31, 2017. The Amended Complaint contains two counts. Count 1
claims that defendants violated Item 303 of SEC Regulation S-K and
thus are liable under Item 303 or, alternatively, under Section
10(b) of the Exchange Act and Rule 10b-5. Count 2 alleges
violations of Section 20(a) of the Exchange Act by defendants Ahn,
Schwartz, and Dunlap. The Plaintiffs seek compensatory damages;
reasonable costs and expenses incurred in the action, including
attorney's fees and expert fees; and such other relief as the court
deems proper.
Now before the Court are the Defendants' motions to dismiss the
Amended Complaint for failure to state a claim. Defendants Galena,
Schwartz, Dunlap, Lento, and Bernarda filed a joint motion to
dismiss. Defendant Ahn filed a separate motion to dismiss. The
Plaintiffs oppose these motions.
Judge McNulty finds that the Plaintiffs have identified several
troubling practices regarding Galena, Abstral sales, and Drs. Ruan
and Couch. However, the complaint suffers from fundamental defects
that prevent the Court from concluding that the Plaintiffs have
stated a cognizable claim for securities fraud. In his Opinion, he
reviews three fundamental, interrelated issues that must be
addressed: (A) the Plaintiffs do not clearly explain their reliance
on Item 303 as the basis for their securities-fraud suit and how
their suit is cognizable under the Third Circuit case of Oran v.
Stafford; (B) the Plaintiffs' theory of liability shifts and
remains unclear throughout the complaint; and (C) the Plaintiffs
fail to plead securities fraud on a statement-by-statement basis,
as required by the PSLRA.
In addition, the Plaintiffs' nondisclosure claims rest on Item
303(a) of SEC Regulation S-K, which is alleged to be the source of
a duty of disclosure. The Third Circuit case of Oran v. Stafford,
however, precludes them from enforcing Item 303 through an
independent private right of action. And although omissions under
Item 303 may independently violate Section 10(b) and Rule 10b-5,
they have not been adequately alleged to do so.
For these reasons, Judge McNulty granted the Defendants' motion to
dismiss without prejudice to the filing of a second amended
complaint within 30 days. An appropriate order accompanies the
opinion.
A full-text copy of the Court's Aug. 21, 2018 Opinion is available
at https://is.gd/jtjETM from Leagle.com.
Mark Muir, Movant, represented by GARY S. GRAIFMAN , KANTROWITZ,
GOLDHAMER & GRAIFMAN, ESQS. & SHERIEF MORSY -- smorsy@faruqilaw.com
-- FARUQI & FARUQI LLP.
Winnie Lu, John Pagoumian, Peter Gianoukas & Robert McDonald,
Movants, represented by GARY S. GRAIFMAN, KANTROWITZ, GOLDHAMER &
GRAIFMAN, ESQS. & JAMES E. CECCHI -- jcecchi@carellabyrne.com --
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
Dan Grunfeld, Shawn Kracht, Joseph Selinger, James Huisman & Brooks
Lieske, Lead Plaintiffs, represented by GARY S. GRAIFMAN,
KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. & WILLIAM B. FEDERMAN --
WBF@FEDERMANLAW.COM -- FEDERMAN & SHERWOOD.
STEVEN MILLER, individually and on behalf of all others similarly
situated, Plaintiff, represented by LAURENCE M. ROSEN --
lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA.
SUE KATTUAH, Plaintiff Consolidated, represented by JAMES E.
CECCHI, CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
GALENA BIOPHARMA, INC., RYAN M. DUNLAP, JOHN T. BURNS & REMY
BERNARDA, Defendants, represented by CHAD JOHNSON PETERMAN --
chadpeterman@paulhastings.com -- PAUL HASTINGS LLP.
MARK J. AHN, Defendant, represented by HOLLY SUSANNE WINTERMUTE --
hswinter@debevoise.com -- DEBEVOISE & PLIMPTON LLP.
MARK W. SCHWARTZ, Defendant, represented by GLENN S. KERNER --
gkerner@goodwinlaw.com -- GOODWIN PROCTER, LLP.
CHRISTOPHER S. LENTO, Defendant, represented by SANDRA LYNN
MUSUMECI -- smusumeci@rshc-law.com -- RILEY SAFER HOLMES CANCILA
LLP.
GEICO INSURANCE: Removes Nichols Case to W.D. Washington
--------------------------------------------------------
The Defendant in the case of MERLE NICHOLS, individually and on
behalf of all others similarly situated, Plaintiff v. GEICO
INSURANCE COMPANY, Defendant, filed a notice to remove the lawsuit
from the Superior Court of the State of Washington, County of King
(Case No. 18-00002-18374-0-SEA) to the U.S. District Court for the
Western District of Washington on August 24, 2018, and assigned
Case No. 2:18-cv-01253-RAJ (W.D. Wash., Aug. 24, 2018). The case is
assigned to Judge Richard A. Jones.
GEICO General Insurance Company, Inc. provides personal automobile
insurance products. GEICO General Insurance Company, Inc. was
formerly known as Equi-Gen Insurance Company and changed its name
to GEICO General Insurance Company, Inc. in September, 1982. The
company was founded in 1934 and is based in Chevy Chase, Maryland.
GEICO General Insurance Company, Inc. operates as a subsidiary of
Government Employees Insurance Company, Inc. [BN]
The Plaintiff is represented by:
Duncan Calvert Turner, Esq.
BADGLEY MULLINS TURNER PLLC
19929 Ballinger Way NE, Ste 200
Seattle, WA 98155
Telephone: (206) 621-6566
E-mail: dturner@badgleymullins.com
- and -
Randall C Johnson , Jr. Esq.
MYERS & COMPANY
1530 Eastlake Avenue East
Seattle, WA 98102
Telephone: (206) 890-0616
E-mail: rcjj.law@gmail.com
- and -
Ryan C Nute, Esq.
LAW OFFICE OF RYAN C NUTE
19929 Ballinger Way NE, Ste 200
Shoreline, WA 98155
Telephone: (206) 330-0482
Facsimile: (206) 774-6036
E-mail: ryan@rcnutelaw.com
The Defendant is represented by:
Leland Clay Selby , Jr., Esq.
LEDGER SQUARE LAW P.S.
710 Market Street
Tacoma, WA 98402
Telephone: (253) 327-1900
Facsimile: (253) 327-1700
E-mail: clay@ledgersquarelaw.com
GENCO SHIPPING: Time to Appeal Baltic Trading Case Dismissal Ends
-----------------------------------------------------------------
Genco Shipping & Trading Limited said in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that the time for plaintiffs to file a
motion for leave to appeal from the order dismissing the Baltic
Trading Ltd. Stockholder Litigation to the New York State Court of
Appeals has expired.
In April 2015, six class action complaints were filed in the
Supreme Court of the State of New York, County of New York. On May
26, 2015, the six actions were consolidated under the caption In Re
Baltic Trading Ltd. Stockholder Litigation, Index No. 651241/2015,
and a consolidated class action complaint was filed on June 10,
2015 (the "Consolidated Complaint"). The Consolidated Complaint is
purported to be brought by and on behalf of Baltic Trading's
shareholders and alleges that the then-proposed July 2015 merger
did not fairly compensate Baltic Trading's shareholders and
undervalued Baltic Trading. The Consolidated Complaint names as
defendants the Company, Baltic Trading, the individual members of
Baltic Trading's board, and the Company's merger subsidiary. The
claims generally allege (i) breaches of fiduciary duties of good
faith, due care, disclosure to shareholders, and loyalty, including
for failing to maximize shareholder value, and (ii) aiding and
abetting those breaches. Among other relief, the complaints seek
an injunction against the merger, declaratory judgments that the
individual defendants breached fiduciary duties, rescission of the
merger agreement, and unspecified damages.
On July 9, 2015, plaintiffs in that action moved to enjoin the
merger vote, scheduled to take place on July 17, 2015. The motion
to enjoin the vote was denied on July 15, 2015. Plaintiffs sought
an emergency injunction and temporary restraining order from the
New York State Appellate Division, First Department the following
day, on July 16, 2015. The Appellate Division denied the request,
and the vote, and subsequent merger, proceeded as scheduled on July
17, 2015. Plaintiffs thereafter withdrew that appeal.
On June 30, 2015, defendants had moved to dismiss the Consolidated
Complaint in its entirety. Plaintiffs subsequently served an
Amended Consolidated Complaint, and defendants directed their
motion to dismiss to that amended complaint. The motion to dismiss
was granted and the Amended Consolidated Complaint was dismissed
with prejudice on August 29, 2016. By a Decision and Order dated
April 26, 2018, the New York State Appellate Division, First
Department affirmed the dismissal of the amended complaint. The
time for plaintiffs to file a motion for leave to appeal to the New
York State Court of Appeals has expired.
Genco Shipping & Trading Limited is a Marshall Islands company that
transports iron ore, coal, grain, steel products and other drybulk
cargoes along worldwide shipping routes through the ownership and
operation of drybulk carrier vessels.
GET TOGETHER: Mellichamp Sues Over Illegal SMS Ad Blasts
--------------------------------------------------------
Heather Mellichamp and John Morgan, individually and on behalf of
all others similarly situated, Plaintiff, v. Get Together, Inc.,
Defendant, Case No. 18-cv-01495 (M.D. Fla., September 12, 2018),
seeks statutory damages, injunctive relief as well as reasonable
attorney's fees pursuant to the Telephone Consumer Protection Act.
Get Together developed and operates the application "Gather" and
"IRL," social media applications for smartphones. It used text
messages as a means of marketing its business and promoting its
services to consumers, thus causing unsolicited text messages to be
sent to the cellular subscribers resulting in aggravation,
annoyance, intrusion on seclusion, trespass and conversion, says
the complaint. Both Plaintiffs received unsolicited text
advertisements from Get Together on their phones.
The Plaintiffs are represented by:
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
NORMAND LAW PLLC
62 W. Colonial St., Suite 209
Orlando FL 32814
Tel: 407-603-6031
Email: jacob@ednormand.com
ed@ednormand.com
GOGO INC: Pierrelouis Class Action Underway in Illinois
-------------------------------------------------------
Gogo Inc. is defending itself in a putative class action lawsuit in
Illinois styled Pierrelouis v. Gogo Inc., according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
The Company said, "On June 27, 2018, a purported stockholder of the
Company filed a putative class action lawsuit in the United States
District Court for the Northern District of Illinois, Eastern
Division styled Pierrelouis v. Gogo Inc., naming the Company, its
former Chief Executive Officer and Chief Financial Officer and its
current Chief Executive Officer, Chief Financial Officer, and
President, Commercial Aviation as defendants purportedly on behalf
of all purchasers of our securities from February 27, 2017 through
May 7, 2018.
"The complaint asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder, alleging misrepresentations or omissions by
us purporting to relate to our 2Ku antenna's reliability and
installation and remediation costs. The plaintiffs seek to recover
from us and the individual defendants an unspecified amount of
damages.
"We believe that the claims are without merit and intend to defend
them vigorously. In accordance with Delaware law, we will
indemnify the individual named defendants for their defense costs
and any damages they incur in connection with the suit.
"We have filed a claim with the issuer of our Directors' and
Officers' insurance policy with respect to this suit. No amounts
have been accrued for any potential losses under this matter, as we
cannot reasonably predict the outcome of the litigation or any
potential losses."
Gogo Inc., through its subsidiaries, provides inflight broadband
connectivity and wireless entertainment services to the aviation
industry in the United States and internationally. The Company was
founded in 1991 and is headquartered in Chicago, Illinois.
GROUPON INC: Removes Arliss and Lawrie Suit to S.D. California
--------------------------------------------------------------
The Defendant in the case of BARRIE ARLISS and JEFF LAWRIE,
individually and on behalf of all others similarly situated,
Plaintiffs v. GROUPON, INC.; FULL CIRCLE FARMS, INC.; SPA BLIX,
INC.; and Does 1 through 100, Defendants, filed a notice to remove
the lawsuit from the Superior Court of the State of California,
County of King (Case No. 11-2-15609-5-SEA) to the U.S. District
Court for the Southern District of California on August 23, 2018,
and assigned Case No. 3:18-cv-01977 (S.D. Cal., Aug. 23, 2018).
Groupon, Inc. operates online local commerce marketplaces that
connect merchants to consumers by offering goods and services at a
discount in North America and internationally. The company was
formerly known as ThePoint.com, Inc. and changed its name to
Groupon, Inc. in October 2008. The company was founded in 2008 and
is headquartered in Chicago, Illinois. Groupon, Inc. is a
subsidiary of The Point, LLC. [BN]
The Plaintiffs are represented by:
Christopher Robert Carney, Esq.
CARNEY GILLESPIE ISITT PLLP
100 West Harrison Street, Suite N440
Seattle, WA 98119
Telephone: (206) 445-0212
Facsimile: (206) 260-2486
E-mail: christopher.carney@cgi-law.com
- and -
Jason Moore, Esq.
VAN EYK & MOORE
100 W Harrison Street, Suite N-440
Seattle, WA 98119
Telephone: (206) 445-0223
Facsimile: jason@vaneyk-moore.com
- and -
Jay S Carlson, Esq.
Kenan Lee Isitt, Esq.
Sean P Gillespie
CARNEY GILLESPIE ISITT PLLP
100 W Harrison St Ste N440
Seattle, WA 98119
Telephone: (206) 445-0207
E-mail: JayCarlson.legal@gmail.com
kenan.isitt@cgi-law.com
sean.gillespie@cgi-law.com
- and -
Shaun Van Eyk, Esq.
VAN EYK & MOORE PLLC
100 W Harrison Street, Suite N-440
Seattle, WA 98119
Telephone: (206) 445-0223
E-mail: shaun@vaneyk-moore.com
The Defendants are represented by:
Bradley T. Meissner, Esq.
Fenwick & West, LLP
1191 Second Avenue, 10th Floor
Seattle, WA 98101
Telephone: (206) 389-4546
E-mail: bmeissner@fenwick.com
- and -
Stellman Keehnel, Esq.
DLA Piper LLP US
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044
Telephone: (206) 839-4888
Facsimile: (206) 494-1790
E-mail: stellman.keehnel@dlapiper.com
- and -
David C Lundsgaard, Esq.
GRAHAM & DUNN
2801 Alaskan Way, Suite 300
Seattle, WA 98121-1128
Telephone: (206) 624-8300
E-mail: dlundsgaard@grahamdunn.com
H&H FRANCHISING: Can Compel Arbitration in Geiger FLSA Suit
-----------------------------------------------------------
In the case, ROSEANN GEIGER et. al., Plaintiffs, v. H&H FRANCHISING
SYSTEMS, INC., et. al., Defendants, Civil Action No.
3:17-CV-00738-FDW-DSC (W.D. N.C.), Magistrate Judge David S. Cayer
of the U.S. District Court for the Western District of North
Carolina, Charlotte Division, granted the Defendants' Motion to
Compel Arbitration and Dismiss or Stay Action.
The Defendants offer in-home, companion care services from their
principal office in Huntersville, North Carolina. The Plaintiffs,
including opt-in the Plaintiffs Carmon and Moss, were employed by
the Defendants as caregivers.
On Dec. 24, 2017, the Plaintiffs filed their Complaint, which as
amended, alleges violations of the Fair Labor Standards Act
("FLSA"), and the North Carolina Wage and Hour Act. They seek
unpaid minimum and overtime wages, as well as statutory penalties.
The Plaintiffs also seek to represent all similarly situated
employees through an FLSA collective action. Plaintiff Holley
alleges a FLSA claim for retaliation.
Plaintiff Geiger and opt-in Plaintiffs Carmon and Moss signed
Employment Agreements with the Glenkat Defendants. Those
agreements contained valid arbitration clauses, including
arbitration of FLSA claims and class action waivers. Plaintiff
Holley did not agree to arbitrate or waive her right to seek class
relief.
On July 2, 2018, the Glenkat Defendants filed their Motion to
Compel Arbitration and Dismiss or Stay Action. The Plaintiffs do
not dispute the validity or scope of the arbitration agreement or
class action waiver. They argue that the Defendants delayed in
compelling arbitration, instead substantially invoking the judicial
process and waiving their right to arbitration. They also argue
that Plaintiff Holley and Defendants never agreed to arbitration.
In its response, Defendant HH joins the Motion to Compel as a
non-signatory beneficiary. The Plaintiffs have pled all their
claims against the Defendants collectively with a single set of
factual allegations. In their reply brief, the Glenkat Defendants
clarify that they are not seeking to compel arbitration by
Plaintiff Holley or any potential opt-in Plaintiff who did not sign
an Employment Agreement containing the arbitration clause and class
action waiver.
Accordingly, the remaining issue is whether the Defendants
substantially invoked the judicial process thereby waiving their
right to arbitration.
Magistrate Judge Cayer concludes that the Defendants are entitled
to an order compelling arbitration. The Defendants have shown that
Plaintiff Geiger and opt-in Plaintiffs Carmon and Moss entered into
a valid agreement to arbitrate and waived their right to pursue a
class action. No discovery has occurred. The Glenkat Defendants
moved to compel arbitration less than four months after the
Plaintiffs amended their Complaint. Although the Glenkat
Defendants filed a Motion to Dismiss, Plaintiff Holley's claims are
not arbitrable and accordingly her claims were subject to the
Motion. The Plaintiffs have failed to overcome the well
established policy favoring arbitration.
The Court has discretion to dismiss an action where all the issues
raised are arbitrable. The more common practice is to stay the
action or those claims pending the outcome of arbitration in order
to provide a convenient forum for confirmation of any ensuing
arbitration award.
For those reasons and the other reasons stated in the Defendants'
briefs, the Magistrate granted the Defendants' Motion to Compel
Arbitration as to all claims brought by Plaintiff Geiger and opt-in
Plaintiffs Carmon and Moss. He stayed the matter as to those
claims. Plaintiff Geiger and opt-in Plaintiffs Carmon and Moss,
and the Defendants will arbitrate those claims as provided in their
Employment Agreements. The Clerk is directed to send copies of the
Order to counsel of record and to the Honorable Frank D. Whitney.
A full-text copy of the Court's Aug. 21, 2018 Memorandum and Order
is available at https://is.gd/IHWU8m from Leagle.com.
Roseann Geiger & Sherri Holley, individually and on behalf of all
others similarly situated, Plaintiffs, represented by L. Michelle
Gessner, The Law Offices of Michelle Gessner, PLLC.
Glenkat, Inc., Kathleen Holden & Glen Holden, Defendants,
represented by Kimberly Sullivan -- ksullivan@horacktalley.com --
Horack Talley.
H.H. Franchising Systems, Inc., Defendant, represented by Fredric
A. Cohen -- fredric.cohen@chengcohen.com -- Cheng Cohen LLC, pro
hac vice, Marlen Cortez Morris, Cheng Cohen LLC, pro hac vice &
William Sutton Cherry, III -- cherry@manningfulton.com -- Manning,
Fulton & Skinner, P.A..
HALLIBURTON CO: LeBlanc Class of Drillers Conditionally Certified
-----------------------------------------------------------------
In the case, BRENT LEBLANC, Individually and on behalf of all
others similarly situated, Plaintiff, v. HALLIBURTON COMPANY,
Defendant, Civ. No. 17-0718KG-GJF (D. N.M.), Judge Kenneth J.
Gonzales of the U.S. District Court for the District of New Mexico
granted LeBlanc's Motion for Conditional Certification.
LeBlanc, a directional driller, brings the lawsuit against
Halliburton to recover unpaid overtime wages as well as other
damages provided under the federal Fair Labor Standards Act
("FLSA"), and under the New Mexico Minimum Wage Act ("NMMWA").
LeBlanc alleges Halliburton is an oil and gas exploration and
production company, and that it operates worldwide, including in
the United States and New Mexico. As part of this business,
Halliburton employs oilfield personnel. LeBlanc further alleges he
and other Halliburton directional drillers ("DDs") typically work a
scheduled 12-hour shift, seven days per week, and for weeks at a
time. He also alleges he and these other workers never receive
overtime compensation for the hours they work in excess of the 40
hours for a single work week.
LeBlanc further alleges that instead of paying overtime wages as
otherwise required under the FLSA and NMMWA, Halliburton pays these
workers a daily rate with no overtime paid to them, and that it
improperly classified these workers as independent contractors.
Halliburton responds in opposition, arguing LeBlanc's Motion to
conditionally certify the proposed class should be denied, and
asserting LeBlanc has failed to make a substantial showing to
support the Motion by only including boilerplate declarations
containing nothing more than unsupported and cursory allegations,
and declarations silent on material details, such as how they were
paid, locations where they worked, specific sites where they
worked, specific duties and responsibilities they performed and
supervisor details, in order to show that they are, in fact,
similarly situated.
Halliburton also argues that LeBlanc has made no substantial
allegations of sufficient similarity to warrant conditional
certification. His and Briggs' Declarations lack any specificity
regarding how they were paid, whom they worked for, and where they
were located, among other details. Indeed, they fail to make these
allegations because the facts do not support a showing of
similarity -- LeBlanc and Briggs were paid through different
entities (LeBlanc even had his own consulting firm), worked for the
Upstream entities at different times in different capacities, and
worked in different locations for different clients.
Based on his review of the complaint, the briefing on the instant
Motion and corresponding declarations, and the applicable law,
Judge Gonzales finds that LeBlanc has made substantial allegations
that the putative class members are similarly situated. As to
Halliburton's arguments in opposition, he agrees with LeBlanc that
the arguments apply more to a merits-based determination, which is
a more strict evidence-based determination and, at this conditional
certification stage, are premature.
The Judge directed the parties to meet and confer as to the
contents of the notice of lawsuit to the putative class members and
the manner by which to distribute such notice. They shall submit
the stipulated or disputed notice of lawsuit no later than 5:00
p.m., Aug. 27, 2018. He will enter an order in due course relating
to the parties' submission(s).
For these reasons, Judge Gonzalez granted LeBlanc's Motion for
Conditional Certification. He conditionally certified the class of
directional drillers employed by, or working on behalf of,
Halliburton Company as independent contractors any time between
three years prior to the date of this Memorandum and Order of
Conditional Certification, and the present.
Ten days from the order approving the notice of the lawsuit to
potential class members, Halliburton will provide to LeBlanc's
counsel in Excel (.xlsx) format the following information regarding
all putative class members: (i) full name; (ii) last known
address(es) with city, state, and zip code; (iii) last known e-mail
address(es) (non-company address if applicable); (iv) last known
telephone number(s); (v) beginning date(s) of employment; and (vi)
ending date(s) of employment (if applicable).
Twenty days from the order approving the notice of the lawsuit to
the potential class members, LeBlanc's counsel will send a copy of
the Court-approved Notice and Consent Form to the putative class
members by first class U.S. mail and by e-mail. Halliburton is
required to post the Notice and Consent Forms on all jobsites for
60 days in an open and obvious location. LeBlanc's counsel may
follow-up the mailed Notice and Consent Forms with contact by
telephone of former employees or those putative class members whose
mailed or e-mailed contact information is not valid.
The Judge gave the putative class members 60 days from the mailing
of the Notice and Consent Forms to return their signed Consent
Forms to LeBlanc's counsel for filing with the Court. Halliburton
may remove the posted Notice and Consent Forms at that time.
Twenty days from the mailing of the Notice and Consent Forms to
potential class members, LeBlanc's counsel is authorized to mail by
first class U.S. mail and e-mail a second, identical copy of the
Notice and Consent Form to the putative class members reminding
them of the deadline for the submission of the Consent Forms.
A full-text copy of the Court's Aug. 21, 2018 Memorandum Opinion
and Order is available at https://is.gd/SrTTuI from Leagle.com.
Brent LeBlanc, Individually and on behalf of all others similarly
Situated, Plaintiff, represented by Andrew W. Dunlap --
adunlap@mybackwages.com -- Josephson Dunlap Law Firm, pro hac vice,
Matthew Scott Parmet -- mparmet@brucknerburch.com -- Bruckner Burch
PLLC, Michael A. Josephson -- mjosephson@mybackwages.com --
Josephson Dunlap Law Firm, pro hac vice & Richard Burch --
rburch@brucknerburch.com -- Bruckner & Burch PLLC.
Halliburton Energy Services, Inc., Defendant, represented by
Charles J. Vigil -- cvigil@rodey.com -- Rodey Dickson Sloan Akin &
Robb, P.A., Jeffrey L. Lowry -- jllowry@rodey.com -- Rodey,
Dickason, Sloan, Akin & Robb, P.A., Mark D. Temple --
mtemple@reedsmith.com -- Reed Smith LLP & Paige T. Bennett --
pbennett@reedsmith.com -- Reed Smith, LLP, pro hac vice.
HANNAM CHAIN: Fails to Pay Minimum & Overtime, Lopez et al. Claim
-----------------------------------------------------------------
PEDRO CRUZ RAMIREZ, GUSTAVO ROMERO GOMEZ, and MARIO LOPEZ,
individually, and on behalf of all others similarly situated, the
Plaintiff, v. HANNAM CHAIN U.S.A., INC, a California corporation;
TORRANCE HANNAM CHAIN, INC, a California corporation; SUPER 1
HANNAM, INC., a California corporation; SUPER 1 LA PALMA INC, a
California corporation; SUPER 1 TORRANCE, INC, a California
corporation; HANNAM TRADERS, INC, a California corporation; DR
HANNAM CHAIN, INC, a California corporation; and DOES 1 through 10,
inclusive, the Defendant, Case No. BC721317 (Cal. Super. Ct., Sept.
17, 2018), is an action against the Defendants for alleged
California Labor Code violations and unfair business practices
stemming from the Defendants' failure to pay minimum and straight
time wages, failure to pay overtime wages, failure to provide meal
periods, failure to authorize and permit rest periods, failure to
maintain accurate records of hours worked and meal periods, failure
to timely pay all wages to terminated employees, and failure to
furnish accurate wage statements.
Hannam Chain U.S.A., Inc. operates a super market.[BN]
The Plaintiffs are represented by:
Kane Moon, Esq.
Justin F. Marquez, Esq.
Allen Feghali, Esq.
MOON & YANG, APC
1055 W. Seventh St., Suite 1880
Los Angeles, CA 90017
Telephone: (213) 232 3128
Facsimile: (213) 232 3125
E-mail: kane.moon@moonyanglaw.com
justm.fliarquez@moonyanglaw.com
allen.fegha1i@moonyanglaw.com
HC2 HOLDINGS: Parties Still Exploring Schuff Litigation Settlement
------------------------------------------------------------------
The parties in the consolidated case captioned Schuff
International, Inc. Stockholders Litigation are still exploring
alternative frameworks for a potential settlement, according to HC2
Holdings, Inc.'s Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2018.
On November 6, 2014, a putative stockholder class action complaint
challenging the tender offer by which HC2 acquired approximately
721,000 of the outstanding common shares of DBMG was filed in the
Court of Chancery of the State of Delaware, captioned Mark Jacobs
v. Philip A. Falcone, Keith M. Hladek, Paul Voigt, Michael R. Hill,
Rustin Roach, D. Ronald Yagoda, Phillip O. Elbert, HC2 Holdings,
Inc., and Schuff International, Inc., Civil Action No. 10323 (the
"Complaint").
On November 17, 2014, a second lawsuit was filed in the Court of
Chancery of the State of Delaware, captioned Arlen Diercks v.
Schuff International, Inc. Philip A. Falcone, Keith M. Hladek, Paul
Voigt, Michael R. Hill, Rustin Roach, D. Ronald Yagoda, Phillip O.
Elbert, HC2 Holdings, Inc., Civil Action No. 10359.
On February 19, 2015, the court consolidated the actions (now
designated as Schuff International, Inc. Stockholders Litigation)
and appointed lead plaintiff and co-lead plaintiffs' counsel. The
currently operative complaint was filed by Mark Jacobs. The
pending complaint alleges, among other things, that in connection
with the tender offer, the individual members of the DBMG Board of
Directors and HC2, the controlling stockholder of DBMG, breached
their fiduciary duties to members of the plaintiff class.
Plaintiffs also assert that HC2 should be required to complete a
short-form merger based upon plaintiffs' expectation that the
Company would cash out the remaining public stockholders of DBMG
following the completion of the tender offer. The complaint seeks
rescission of the tender offer and/or compensatory damages, as well
as attorney's fees and other relief. The defendants filed answers
to the complaint on July 30, 2015.
The Company said, "The parties have been exploring alternative
frameworks for a potential settlement. There can be no assurance
that a settlement will be finalized or that the Delaware Courts
would approve such a settlement even if the parties enter into a
settlement agreement. If a settlement cannot be reached, the
Company believes it has meritorious defenses and intends to
vigorously defend this matter."
HC2 Holdings is a diversified holding company that seeks
opportunities to acquire and grow businesses that can generate
long-term sustainable free cash flow and attractive returns in
order to maximize value for all stakeholders. The company is based
in New York.
HC2 HOLDINGS: Settlement Agreement Underway in CGI Producer Suit
----------------------------------------------------------------
HC2 Holdings, Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018, that the parties in the CGI Producer Litigation are
in the process of preparing a formal settlement agreement, which
will be subject to Court approval.
On November 28, 2016, CGI, a subsidiary of the Company, Great
American Financial Resource, Inc. ("GAFRI"), American Financial
Group, Inc., and CIGNA Corporation were served with a putative
class action complaint filed by John Fastrich and Universal
Investment Services, Inc. in The United States District Court for
the District of Nebraska alleging breach of contract, tortious
interference with contract and unjust enrichment. The plaintiffs
contend that they were agents of record under various CGI policies
and that CGI allegedly instructed policyholders to switch to other
CGI products and caused the plaintiffs to lose commissions,
renewals, and overrides on policies that were replaced. The
complaint also alleges breach of contract claims relating to
allegedly unpaid commissions related to premium rate increases
implemented on certain long-term care insurance policies. Finally,
the complaint alleges breach of contract claims related to vesting
of commissions. On August 21, 2017 the Court dismissed the
plaintiffs' tortious interference with contract claim. CGI
believes that the remaining allegations and claims set forth in the
complaint are without merit and intends to vigorously defend
against them.
The case was set for voluntary mediation, which occurred on January
26, 2018. The Court stayed discovery pending the outcome of the
mediation. On February 12, 2018, the parties notified the Court
that mediation did not resolve the case and that the parties'
discussions regarding a possible settlement of the action were
still ongoing. The Court held a status conference on March 22,
2018, during which the parties informed the Court that settlement
negotiations remain ongoing. Nonetheless, the Court entered a
scheduling order setting the case for trial during the week of
October 15, 2019. Meanwhile, the parties' continued settlement
negotiations led to a tentative settlement. The parties are in the
process of preparing a formal settlement agreement, which will be
subject to Court approval.
Further, the Company and CGI are seeking defense costs and
indemnification for plaintiffs' claims from GAFRI and Continental
General Corporation ("CGC") under the terms of an Amended and
Restated Stock Purchase Agreement ("SPA") related to the Company's
acquisition of CGI in December 2015. GAFRI and CGC rejected CGI's
demand for defense and indemnification and, on January 18, 2017,
the Company and CGI filed a Complaint against GAFRI and CGC in the
Superior Court of Delaware seeking a declaratory judgment to
enforce their indemnification rights under the SPA. On February
23, 2017, GAFRI answered CGI's complaint, denying the allegations.
The dispute is ongoing and CGI intends to continue to pursue its
right to a defense and indemnity under the SPA regardless of the
tentative settlement in the class action. Meanwhile, the parties
are currently involved in settlement negotiations.
HC2 Holdings is a diversified holding company that seeks
opportunities to acquire and grow businesses that can generate
long-term sustainable free cash flow and attractive returns in
order to maximize value for all stakeholders. The company is based
in New York.
HEALTH ADVOCATES: Bogdanyi Files Labor Suit in Cal. Super. Ct.
--------------------------------------------------------------
A class action lawsuit has been filed against Health Advocates,
LLC. The case is styled as Bogdanyi, Karen individually and on
behalf of other members of the general public similarly situated,
Plaintiff v. Does 1 to 100, inclusive, Health Advocates, LLC, a
California limited liability company, Defendants, Case No.
CGC18570033 (Cal. Super. Ct., San Francisco Cty., Sept. 24, 2018).
The complaint asserts violation of the California Labor Code.
Health Advocates is a Healthcare Revenue Cycle company
headquartered in Sherman Oaks, California. Their emphasis is in
assisting hospitals to minimize their uncompensated care by
qualifying their uninsured and underinsured patients for Medi-Cal,
Social Security (SSI/SSD) and other health insurance benefits. It
was founded in 1990 and is one of California's Uncompensated Care
Recovery company. Health Advocates currently has over 400 employees
dedicated to serving over 80 of California’s public and private
hospitals.[BN]
The Plaintiff is represented by:
Edwim Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 Arden Ave Ste 203
Glendale, CA 91203
Phone: (818) 265-1020
Fax: (818) 265-1021
Email: edwin@lfjpc.com
HEALTHCARE REVENUE: Court Partly Vacates Dismissal of Levins Suit
-----------------------------------------------------------------
Judge Kent A. Jordan of the U.S. Court of Appeals for the Third
Circuit vacated in part and affirmed in part the dismissal of the
case, ELAINE LEVINS; WILLIAM LEVINS, on behalf of themselves and
others similarly situated, Appellants, v. HEALTHCARE REVENUE
RECOVERY GROUP LLC, a/k/a ARS Account Resolution Services; JOHN AND
JANE DOES 1 THROUGH 25, Case No. 17-3330 (3d Cir.).
The Levinses, who live in New Jersey, purportedly incurred a debt
that was transferred to HRRG for collection. HRRG then began
leaving pre-recorded voicemail messages on the Levinses' phone in
an attempt to collect the debt. At the time the Levinses received
that message over and over, they did not know the identity of the
caller. They had never received any written communication from
HRRG.
Having recently gone through bankruptcy, they knew of a debt
collector with the full name "ARS National Services, Inc." that was
known as "ARS" for short. That company, however, turns out to be
wholly unrelated to HRRG. While it has registered the name "ARS
Account Resolution Services" in New Jersey, HRRG has neither
registered the stand-alone name "ARS" nor taken any other legal
steps to do business under that specific name.
Within a year of receiving the voicemail messages from HRRG, the
Levinses filed their putative class-action complaint alleging that
HRRG violated the FDCPA when attempting to collect debts from them
and others similarly situated. They eventually filed an amended
complaint in which they claimed that the pre-recorded messages
violate 15 U.S.C. Sections 1692e(14), 1692d(6), and 1692e(10)
because they use the name of any business, company or organization
other than the true name of the debt collector's business, company,
or organization; fail to provide meaningful disclosure of HRRG's
identity; and use false representations and deceptive means to
collect or attempt to collect any debt and to obtain information
concerning a consumer.
HRRG moved to dismiss the case, invoking Federal Rule of Civil
Procedure 12(b)(6). Along with its motion, HRRG filed an attorney
declaration with supporting documents. Among those was a
certificate stating that it is registered to do business in New
Jersey under the name "ARS Resolutin Services," and a collection
letter that it purports to have sent to Elaine Levins in November
2015.
The Levinses opposed HRRG's motion and submitted their own attorney
declaration with documents listing hundreds of businesses
registered in New Jersey under names that include "ARS." After
reviewing the parties' submissions, the District Court granted the
motion to dismiss for failure to state a claim.
The Levinses have timely appealed. They make three arguments.
First, they say that HRRG violated Section 1692e(14) because it did
not use its true name in the voicemail messages. Next, they argue
that HRRG violated Section 1692d(6) because the messages did not
meaningfully disclose the caller's identity. And finally they
assert that HRRG violated Section 1692e(10) because forcing
consumers to call HRRG or navigate its website is a deceptive ,
means to collect debts and obtain information about a consumer.
HRRG of course disputes all of those contentions. It says that it
did not violate Section 1692e(14) because "ARS" is an abbreviation
of its registered alternative business name "ARS Account Resolution
Services," which is a true name. It then contends that it did not
violate Section 1692d(6) because the messages said that the caller
was a debt collector, pointed out that the purpose of the call was
to collect a debt, and provided a phone number and website for the
consumer to use, all of which was a sufficient disclosure of
identity. And, last, it argues that it did not use deceptive
collection practices in violation of Section 1692e(10) because the
messages informed consumers that any information obtained would be
used to collect a debt.
Judge Jordan finds that nothing in the information properly before
us indicates that "ARS" is HRRG's full business name, the name
under which it usually transacts business, or its commonly used
acronym. To the extent HRRG argues to the contrary, it is doing so
without proper record support. It will have an opportunity later
to expand the record, but for now taking the , allegations in the
complaint as true, he concludes that the Levinses have stated a
plausible claim for relief under Section 1692e(14).
Next, the Judge finds that the District Court properly dismissed
the Levinses' claim under Section 1692d(6). Although it is
possible for a debt collector's phone message to violate both
Sections 1692d(6) and 1692e(14), a violation of one provision is
not necessarily a violation of the other because meaningful
disclosure of the caller's identity is not restricted to providing
the name of the debt collector. If the Court were to say that use
of anything less than a debt collector's "true name" was a
violation of Section 1692d(6), it would make Section 1692d(6)
superfluous in light of Section 1692e(14).
Finally, nothing in the messages rises to the level of being
materially deceptive, misleading, or false. The plain language of
each message reveals that the caller is a debt collector, that the
call is part of an attempt to collect a debt, and that any
information obtained will be used in that attempt. Given those
clear disclosures, even the least sophisticated debtor is fairly on
notice that calling the phone number provided in the message or
visiting the website might result in the debt collector obtaining
information that it could use in trying to collect the debt. The
caller's purpose is transparent and the messages are far removed
from the false representations that typically have been held to
violate Section 1692e(10). The District Court thus properly
dismissed the claim brought under that FDCPA subsection.
For the foregoing reasons, Judge Jordan vacated the District
Court's dismissal of the Section 1692e(14) claim and remanded for
further proceedings. He affirmed, however, the District Court's
dismissal of the claims under Sections 1692d(6) and 1692e(10).
A full-text copy of the Court's April 22, 2018 Opinion is available
at https://is.gd/HQ2UyI from Leagle.com.
Daniel A. Frischberg -- andy@sjbankruptcylaw.com -- 525, Route 73
South, Evesham Commons, Marlton, NJ 08053, Philip D. Stern --
philip@sternthomasson.com --[ARGUED], Andrew T. Thomasson --
andrew@sternthomasson.com -- Stern Thomasson , 150, Morris Avenue,
2nd Floor, Springfield, NJ 07081, Counsel for Appellants.
Sean X. Kelly -- skelly@moodklaw.com -- Christian M. Scheuerman --
cscheuerman@moodklaw.com -- [ARGUED], Marks O'Neill O'Brien Doherty
& Kelly, 535, Route 38, East, Suite 501, Cherry Hill, NJ 08002,
Counsel for Appellee.
HEARST COMMUNICATIONS: Lachapelle Files Fraud Class Action
-----------------------------------------------------------
A class action lawsuit has been filed against Hearst
Communications, Inc. The case is styled as Christina Lachapelle
individually and on behalf of all others similarly situated,
Plaintiff v. Hearst Communications, Inc., Defendant, Case No.
1:18-cv-00534 (D. R.I., Sept. 25, 2018).
The nature of suit is stated as Other Fraud.
Hearst Communications, Inc. publishes a fashion magazine under the
name Elle for women in the United States. Its magazine offers
information and news related to fashion, beauty, hair, and
relationships. The company also provides advertising services.
Additionally, it offers print and digital subscription services.
The company was founded in 1996 and is based in New York, New York.
Hearst Communications, Inc. operates as a subsidiary of The Hearst
Corporation.[BN]
The Plaintiff is represented by:
Peter N. Wasylyk. Esq.
Law Offices of Peter N. Wasylyk
1307 Chalkstone Avenue
Providence, RI 02908
Phone: (401) 831-7730
Fax: (401) 861-6064
Email: pnwlaw@aol.com
HERC HOLDINGS: Plaintiffs' Appeal in Securities Suit Still Pending
------------------------------------------------------------------
The plaintiff's appeal from a court ruling in the case entitled, In
re Hertz Global Holdings, Inc. Securities Litigation, is still
pending, according to Herc Holdings Inc.'s Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018.
In November 2013, a putative shareholder class action, Pedro
Ramirez, Jr. v. Hertz Global Holdings, Inc., et al., was commenced
in the U.S. District Court for the District of New Jersey naming
Hertz Holdings and certain of its officers as defendants and
alleging violations of the federal securities laws. The complaint
alleged that Hertz Holdings made material misrepresentations and/or
omission of material fact in its public disclosures during the
period from February 25, 2013 through November 4, 2013, in
violation of Section 10(b) and 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and Rule 10b-5
promulgated thereunder. The complaint sought unspecified monetary
damages on behalf of the purported class and an award of costs and
expenses, including counsel fees and expert fees.
In June 2014, Hertz Holdings moved to dismiss the amended
complaint. In October 2014, the court granted Hertz Holdings'
motion to dismiss without prejudice, allowing the plaintiff to
amend the complaint a second time. In November 2014, plaintiff
filed a second amended complaint which shortened the putative class
period and made allegations that were not substantively very
different than the allegations in the prior complaint.
In early 2015, Hertz Holdings moved to dismiss the second amended
complaint. In July 2015, the court granted Hertz Holdings' motion
to dismiss without prejudice, allowing plaintiff to file a third
amended complaint. In August 2015, plaintiff filed a third amended
complaint which included additional allegations, named additional
then-current and former officers as defendants and expanded the
putative class period to extend from February 14, 2013 to July 16,
2015. In November 2015, Hertz Holdings moved to dismiss the third
amended complaint.
The plaintiff then sought leave to add a new plaintiff because of
challenges to the standing of the first plaintiff. The court
granted plaintiff leave to file a fourth amended complaint to add
the new plaintiff, and the new complaint was filed on March 1,
2016. Hertz Holdings and the individual defendants moved to
dismiss the fourth amended complaint with prejudice on March 24,
2016.
In April 2017, the court granted Hertz Holdings' and the individual
defendants' motions to dismiss and dismissed the action with
prejudice. In May 2017, plaintiff filed a notice of appeal and, in
October 2017, the U.S. Court of Appeals for the Third Circuit
issued a briefing schedule. Briefing was completed in February
2018, and oral argument before the court was conducted on
June 12, 2018.
No further updates were provided in the Company's SEC report.
Herc Holdings Inc. is engaged principally in the business of
renting equipment. Ancillary to its principal business of equipment
rental, the company also sells used rental equipment, sells new
equipment and consumables and offers certain service and support to
its customers. The company is based in Bonita Springs, Florida.
HESKA CORP: Class Suit over Unauthorized Faxes Underway
-------------------------------------------------------
Heska Corporation still defends itself in a class action lawsuit
related to the transmittal of unauthorized faxes, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
The Company said, "On March 12, 2015, a complaint was filed against
us by Shaun Fauley in the United States District Court Northern
District of Illinois alleging our transmittal of unauthorized faxes
in violation of the federal Telephone Consumer Protection Act of
1991, as amended by the Junk Fax Prevention Act of 2005, as a class
action seeking stated damages of the greater of actual monetary
loss or five hundred dollars per violation. The Company intends to
defend itself vigorously in this matter and at this time is unable
to estimate a possible loss or range of loss."
Heska Corporation and its wholly-owned subsidiaries sell advanced
veterinary diagnostic and specialty products.
HORIZON PHARMA: Schaffer Plaintiffs Drop Appeal, End Lawsuit
------------------------------------------------------------
Plaintiffs in the case Schaffer v. Horizon Pharma plc, et al. have
voluntarily dropped their appeal from the District Court's
dismissal of the case, according to Horizon Pharma Public Limited
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
Beginning on March 8, 2016, two federal securities class action
lawsuits (captioned Schaffer v. Horizon Pharma plc, et al., Case
No. 16-cv-01763-JMF and Banie v. Horizon Pharma plc, et al., Case
No. 16-cv-01789-JMF) were filed in the United States District Court
for the Southern District of New York against the Company and
certain of the Company's current and former officers (the "Officer
Defendants").
On March 24, 2016, the court consolidated the two actions under
Schaffer v. Horizon Pharma plc, et al. On June 3, 2016, the court
appointed Locals 302 and 612 of the International Union of
Operating Engineers-Employers Construction Industry Retirement
Trust and the Carpenters Pension Trust Fund for Northern California
as lead plaintiffs and Labaton Sucharow LLP as lead counsel.
On July 25, 2016, lead plaintiffs and additional named plaintiff
Automotive Industries Pension Trust Fund filed their consolidated
complaint, which they subsequently amended on October 7, 2016,
including additional current and former officers, the Company's
Board of Directors (the "Director Defendants"), and underwriters
involved with the Company's April 2015 public offering (the
"Underwriter Defendants") as defendants.
The plaintiffs alleged that certain of the Company and the Officer
Defendants violated sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, by making false and/or misleading
statements about, among other things: (a) the Company's financial
performance, (b) the Company's business prospects and drug-pricing
practices, (c) the Company's sales and promotional practices, and
(d) the Company's design, implementation, performance, and risks
associated with the Company's Prescriptions-Made-Easy program.
The plaintiffs alleged that certain of the Company, the Director
Defendants and the Underwriter Defendants violated sections 11,
12(a)(2) and 15 of the Securities Act in connection with the
Company's April 2015 public offering. The plaintiffs sought, among
other things, an award of damages allegedly sustained by plaintiffs
and the putative class, including a reasonable allowance for costs
and attorneys' fees.
On November 14, 2016, all defendants moved to dismiss the
plaintiffs' amended complaint. Plaintiffs' filed their opposition
to the motion to dismiss on December 21, 2016. On January 18,
2018, the District Court dismissed all plaintiffs' claims against
all defendants, and denied the plaintiffs any further opportunity
to amend their complaint.
On February 16, 2018, plaintiffs filed a notice of appeal of the
District Court's ruling to the Second Circuit Court of Appeals. On
June 8, 2018, the plaintiffs voluntarily dismissed their appeal,
ending the lawsuit.
Horizon Pharma Public Limited Company is a biopharmaceutical
company focused on researching, developing and commercializing
innovative medicines that address unmet treatment needs for rare
and rheumatic diseases.
ICONIX BRAND: Still Awaiting Court OK on Bid to Dismiss N.Y. Suit
-----------------------------------------------------------------
Defendants' motion to dismiss the second consolidated amended
complaint in a securities class action remains pending, according
to Iconix Brand Group, Inc.'s Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
Three securities class actions have been consolidated in the United
States District Court for the Southern District of New York, under
the caption In re Iconix Brand Group, Inc., et al., Docket No.
1:15-cv-4860, against the Company and certain former officers and
one current officer (the "Class Action").
The plaintiffs in the Class Action purport to represent a class of
purchasers of the Company's securities from February 22, 2012 to
November 5, 2015, inclusive, and claim that the Company and
individual defendants violated sections 10(b) and 20(a) of the
Exchange Act, by making allegedly false and misleading statements
regarding certain aspects of the Company's business operations and
prospects.
On October 25, 2017, the Court granted the motion to dismiss the
consolidated amended complaint filed by the Company and the
individual defendants with leave to amend. On November 14, 2017,
the plaintiffs filed a second consolidated amended complaint. On
February 2, 2018, the defendants moved to dismiss the second
consolidated amended complaint.
Iconix Brand said, "The Company and the individual defendants
intend to vigorously defend against the claims. At this time, the
Company is unable to estimate the ultimate outcome of these
matters."
Iconix Brand Group, Inc. is a brand management company and owner of
a diversified portfolio of approximately 30 global consumer brands
across the women's, men's, home and international segments. The
Company's business strategy is to maximize the value of its brands
primarily through strategic licenses and joint venture partnerships
around the world, as well as to grow the portfolio of brands
through strategic acquisitions.
IKEA NORTH AMERICA: Gorbeck Alleges Age and Gender Discrimination
-----------------------------------------------------------------
LAURIE GORBECK, individually and on behalf of all others similarly
situated, Plaintiff v. IKEA NORTH AMERICA SERVICES, LLC; IKEA
DISTRIBUTION SERVICES, INC.; and IKEA HOLDINGS, INC. all d/b/a
IKEA; JOHN OLSON; and JACQUELYN DECHAMPS, Defendants, Case No.
2:18-cv-03651-AB (E.D. Pa., Aug. 27, 2018) alleges that the
Defendants pay women less than men, and favor employees under 40
years of age for management.
According to the complaint, the Plaintiff was a Human Resource
Navigator for the Defendants' retain operations in the U.S.,
serving at a senior level of management for the company. The
Plaintiff alleges that due to her being a woman and with age above
40, IKEA systematically pay her than men, and had a strategic
initiative to favor those under 40 for management. The Defendants
failed to promote her or permit her to transfer laterally, actually
demoted her for a period, and ultimately terminated her
employment.
IKEA North America Services, LLC operates a chain of home
furnishing retail stores in North America. The company was founded
in 1985 and is based in Conshohocken, Pennsylvania. IKEA North
America Services, LLC operates as a subsidiary of IKEA Holdings
U.S., Inc. [BN]
The Plaintiff is represented by:
Harold M. Gouldner, Esq.
KRAUTT HARRIS, P.C.
5 Valley Square, Suite 120
Blue Bell, PA 19422
Telephone: (215) 542-4900
Facsimile: (215) 542-0199
E-mail: hgoldner@krautharris.com
INTERACTIVE BROKERS: Still Defends Class Lawsuit in Connecticut
---------------------------------------------------------------
Interactive Brokers Group, Inc. (IBG, Inc.) continues to face a
customer class action proceeding in Connecticut, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
December 18, 2015, a former individual customer filed a purported
class action complaint against IB LLC, IBG, Inc., and Thomas Frank,
PhD, the Company's Executive Vice President and Chief Information
Officer, in the U.S. District Court for the District of
Connecticut.
The complaint alleges that the purported class of IB LLC's
customers were harmed by alleged "flaws" in the computerized system
used to close out (i.e., liquidate) positions in customer brokerage
accounts that have margin deficiencies. The complaint seeks, among
other things, undefined compensatory damages and declaratory and
injunctive relief.
On September 28, 2016, the Court issued an order granting the
Company's motion to dismiss the complaint in its entirety, and
without providing plaintiff leave to amend. On September 28, 2017,
plaintiff appealed to the United States Court of Appeals for the
Second Circuit and oral argument was scheduled for September 7,
2018.
No further updates were provided in the Company's SEC report.
Interactive Brokers said, "The Company believes that the appeal,
like the original complaint, lacks merit. Further, even if the
Court's dismissal were to be overturned on appeal, the Company does
not believe that a purported class action is appropriate given the
great differences in portfolios, markets and many other
circumstances surrounding the liquidation of any particular
customer's margin-deficient account. IB LLC and the related
defendants intend to continue to defend themselves vigorously
against the case and, consistent with past practice in connection
with this type of unwarranted action, any potential claims for
counsel fees and expenses incurred in defending the case shall be
fully pursued against the plaintiff."
Interactive Brokers Group, Inc. operates as an automated electronic
broker in approximately 120 electronic exchanges and market centers
worldwide. It specializes in executing and clearing trades in
securities, futures, foreign exchange instruments, bonds, and
mutual funds. The company is based in Greenwich, Connecticut.
INVESTMENT TECH: Records $18M Payable to Class Members at June 30
-----------------------------------------------------------------
Investment Technology Group, Inc. recorded a payable to class
members of US$18.0 million in accounts payable and accrued expenses
at June 30, 2018 that is fully offset by a receivable from the
Company's insurance carrier in other assets, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the fiscal period ended June 30, 2018.
On August 12, 2015, the Company reached a final settlement with the
SEC in connection with the SEC's investigation into a proprietary
trading pilot operated within AlterNet for sixteen months in 2010
through mid-2011. The investigation was focused on customer
disclosures, Form ATS regulatory filings and customer information
controls relating to the pilot's trading activity, which included
(a) crossing against sell-side clients in POSIT and (b) violations
of Company policy and procedures by a former employee. These
violations principally involved information breaches for a period
of several months in 2010 regarding sell-side parent orders flowing
into ITG's algorithms and executions by all customers in non-POSIT
markets that were not otherwise available to ITG clients.
According to the terms of the settlement, the Company paid an
aggregate amount of $20.3 million, representing a civil penalty of
$18 million, disgorgement of approximately $2.1 million in trading
revenues and prejudgment interest of approximately $0.25 million.
In connection with the announcement of the SEC investigation
regarding AlterNet, two putative class action lawsuits were filed
with respect to the Company and certain of its current and former
executives, which were consolidated into a single action captioned
In re Investment Technology Group, Inc. Securities Litigation
before the U.S. District Court for the Southern District of New
York. The complaint alleges, among other things, that the
defendants made material misrepresentations or omitted to disclose
material facts concerning, among other subjects, the matters that
were the subject of the SEC settlement regarding AlterNet and the
SEC investigation that led to the SEC settlement. The complaint
seeks an unspecified amount of damages under the federal securities
laws.
On April 26, 2017, the court granted in part and denied in part the
Company's motion to dismiss the complaint and granted the plaintiff
leave to file a motion to amend its complaint. On June 12, 2017,
the plaintiff filed a motion to amend its complaint against certain
of the individual defendants who were dismissed from the case in
the court's April opinion.
On March 23, 2018, the court denied plaintiff's motion to amend,
thereby affirming its dismissal of certain of the individual
defendants from the case.
On April 19, 2018, the Company reached an agreement in principle to
settle the consolidated securities class action lawsuit. In
exchange for a release of claims and a dismissal with prejudice,
the settlement includes a payment to class members of $18 million,
which is well within the policy limits of, and is expected to be
paid by, the Company's insurance carrier.
The condensed consolidated statements of financial condition as of
June 30, 2018 include a payable to class members of $18.0 million
in accounts payable and accrued expenses that is fully offset by a
receivable from the Company's insurance carrier in other assets.
As a result, the settlement is not expected to impact the Company's
results.
The Company said, "The settlement reached is solely to eliminate
the uncertainties, burden and expense of further protracted
litigation and does not constitute an admission of liability by the
Company or its current or former executives or directors.
Specifically, the Company and its current and former executives and
directors deny any liability or responsibility for the claims made
and make no admission of any wrongdoing. The parties anticipate
entering into a final settlement agreement outlining the complete
terms of the settlement. The settlement is subject to certain
conditions, including, among others, preliminary and final court
approval and notice to the class of plaintiffs in the lawsuit.
There is no assurance that a final settlement will be completed,
court approval will be obtained or that class member participation
will be sufficient."
Investment Technology Group, Inc. (ITG) is a global financial
technology company that helps leading brokers and asset managers
improve returns for investors around the world. ITG empowers
traders to reduce the end-to-end cost of implementing investments
via liquidity, execution, analytics and workflow technology
solutions. ITG has offices in Asia Pacific, Europe and North
America and offers execution services in more than 50 countries.
The company is based in New York.
ITG INC: Dismissal of Mauthe Class Certification Bid Sought
-----------------------------------------------------------
In the lawsuit styled ROBERT W. MAUTHE, M.D., P.C., individually
and as the representatives of a class of similarly-situated
persons, the Plaintiff, v. ITG, INC., ITG INVESTMENT RESEARCH,
INC., and M SCIENCE LLC, the Defendants, Case No. 5:18-cv-01968-JLS
(E.D. Pa.), the Parties ask the Court to approve a stipulation
pursuant to Loc. R.7.4(b)(l) regarding the motion for class
certification, providing that:
1. Upon execution and filing of this stipulation, the Court
shall dismiss without prejudice, the Plaintiff's Motion
for Class Certification.
2. From the time that the Court dismisses Plaintiff's Motion
for Class Certification until the time that the named
Plaintiff files a renewed motion for class action
determination, or notifies the Court that it will not
pursue its class claims under Rule 23, Defendants agree not
to attempt to moot Plaintiff's claims through a Rule 68
Offer of Judgment to the named Plaintiff or otherwise, or
to argue that any such attempt moots Plaintiff's claims.
Though no discussions regarding an individual settlement
are taking place, the parties agree that this stipulation
would not prohibit the parties from entering into a
settlement on an individual basis.[CC]
Robert W. Mauthe, M.D., P.C., individually and as the
representatives of a class of similarly-situated persons, is
represented by:
Richard Shenkan, Esq.
SHENKAN INJURY LAWYERS, LLC
P.O. Box 7255
New Castle, PA 16107
Telephone: (412) 716 5800
Facsimile: (888) 769 1774
E-mail: rshenkan@shenkanlaw.com
- and -
Phillip A. Bock, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. La Salle St., Ste. 1000
Chicago, IL 60602
Telephone: (312) 658 5500
Facsimile: (312) 658 5555
E-mail: phil@classlawyers.com
Attorneys for ITG Investment Research, Inc. and MScience, LLC:
Craig D. Mills, Esq.
BUCHANAN INGERSOLL & ROONEY PC
Two Liberty Place, 50 S. 16th Street, Ste 3200
Philadelphia, PA 19102
Telephone: (215) 665 8700
E-mail: craig.mills@bipc.com
Attorneys for ITG Inc.:
Kevin E. Raphael, Esq.
PIETRAGALLO GORDON ALFANO
BOSICK & RASPANTI, LLP
1818 Market Street, Ste 3402
Philadelphia, PA 19103
Telephone: (215) 988 1442
E-mail: KER@.Pietragallo.com
- and -
Francis J. Earley, Esq.
Joshua Briones, Esq.
Esteban Morales, Esq.
MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO, P.C.
The Chrysler Center
666 Third A venue
New York, NY 10017
Telephone: (212) 935 3000
E-mail: fjearley@mintz.com
jbriones@mintz.com
emorales@mintz.com
JETBLUE AIRWAYS: Fails to Pay Proper Wages, Sanchez Suit Claims
---------------------------------------------------------------
MANUEL SANCHEZ, individually and on behalf of all others similarly
situated, Plaintiff v. JETBLUE AIRWAYS CORPORATION; and DOES 1
through 20, inclusive, Defendants, Case No. BC719081 (Cal. Super.,
Los Angeles Cty., Aug. 24, 2018) is an action against the
Defendants for unpaid regular hours, overtime hours, minimum wages,
wages for missed meal and rest periods.
Mr. Sanchez was employed by the Defendants as non-exempt employee
in California.
JetBlue Airways Corporation, a passenger carrier company, provides
air transportation services. As of December 31, 2017, the company
operated a fleet of 53 Airbus A321 aircraft, 130 Airbus A320
aircraft, and 60 Embraer E190 aircraft. It also served 101
destinations in 30 states in the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
and 21 countries in the Caribbean and Latin America. JetBlue
Airways Corporation was founded in 1998 and is based in Long Island
City, New York. [BN]
The Plaintiff is represented by:
Samuel A. Wong, Esq.
Kashif Haque, Esq.
Jessica L. Campbell, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
K12 INC: Class Certification Bid Pending in Calif. Securities Suit
------------------------------------------------------------------
The plaintiffs' motion for class certification is still pending in
the case entitled, In Re K12 Inc. Securities Litigation, Master
File No. 4:16-cv-04069-PJH, according to K12 Inc.'s Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended June 30, 2018.
On July 20, 2016, a securities class action lawsuit captioned
Babulal Tarapara v. K12 Inc. et al was filed against the Company,
two of its officers and one of its former officers in the United
States District Court for the Northern District of California, Case
No. 3:16-cv-04069 ("Tarapara Case"). The plaintiff purports to
represent a class of persons who purchased or otherwise acquired
the Company's common stock between November 7, 2013 and October 27,
2015, inclusive, and alleges violations by the Company and the
individual defendants of Section 10(b) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and Rule 10b-5
promulgated under the Exchange Act, and violations by the
individual defendants of Section 20(a) of the Exchange Act. The
complaint sought unspecified monetary damages and other relief.
Additionally, on September 15, 2016, a second securities class
action lawsuit captioned Gil Tuinenburg v. K12 Inc. et al was
filed against the Company, two of its officers and one of its
former officers in the United States District Court for the
Northern District of California, Case No. 3:16-cv-05305
("Tuinenburg Case").
On October 6, 2016, the Court consolidated the Tarapara Case and
the Tuinenburg Case, appointed Babul Tarapara and Mark Beadle as
lead plaintiffs, and recaptioned the matter as In Re K12 Inc.
Securities Litigation, Master File No. 4:16-cv-04069-PJH. On
December 2, 2016, the lead plaintiffs filed an amended complaint
against us. The amended complaint named an additional former
officer as a defendant and specified a class period start date of
October 10, 2013. The amended complaint alleges materially false
or misleading statements and omissions regarding the decision of
the Agora Cyber Charter School not to renew its managed public
school agreement with us, student academic and Scantron results,
and other statements regarding student academic performance and
K12's academic services and offerings.
On January 30, 2017, the Company filed its motion to dismiss the
amended complaint. The lead plaintiffs filed an opposition to the
motion to dismiss the amended complaint on March 1, 2017. On
August 30, 2017, as a result of a hearing on April 19, 2017, the
Court granted with prejudice the Company's motion to dismiss the
allegations of false statements regarding Scantron scores, but
denied the motion on the allegations pertaining to non-disclosure
of Agora's 2012 notice of non-renewal and other statements
regarding our replacement contract with Agora, and permitted the
plaintiffs to amend their complaint with respect to certain
statements on the quality and effectiveness of the Company's
programs. The plaintiffs were given until October 2, 2017 to
amend.
On October 2, 2017, the plaintiffs filed a second amended complaint
and elected not to pursue their claims regarding the statements
pertaining to the quality and effectiveness of our academic
programs, and further dismissed two of our former officers as
defendants in the case. The Court accepted these stipulations on
October 4, 2017. On November 16, 2017, the Company filed its
answer denying the allegations and asserting its affirmative
defenses. Discovery with respect to this matter is proceeding.
On March 1, 2018, Plaintiffs filed a motion for class certification
which was opposed by the Company on June 15, 2018.
The Company intends to continue to defend vigorously against each
and every allegation and claim set forth in the amended complaint.
K12 Inc. is a technology-based education company and offer
proprietary and third party curriculum, software systems, and
educational services designed to facilitate individualized learning
for students primarily in kindergarten through 12th grade, or K-12.
The company is based in Herndon, Virginia.
KELLOGG SALES: Court Partly Grants Bid to Certify Hadley Class
--------------------------------------------------------------
In the case, STEPHEN HADLEY, Plaintiff, v. KELLOGG SALES COMPANY,
Defendant, Case No. 16-CV-04955-LHK (N.D. Cal.), Judge Lucy H. Koh
of the U.S. District Court for the Northern District of California,
San Jose Division, (i) granted in part and denied in part the
Plaintiff's motion for class certification, and (ii) denied as moot
Kellogg's motion to exclude the opinion testimony of Steven P.
Gaskin.
The Plaintiff brings the instant putative class action against
Kellogg for allegedly misleading statements on Kellogg's food
product packaging. On Aug. 29, 2016, he filed a complaint. On
Oct. 31, 2016, Kellogg filed a motion to dismiss. In lieu of filing
a response, on Nov. 14, 2016, the Plaintiff filed a First Amended
Complaint ("FAC").
On Dec. 8, 2016, Kellogg filed a motion to dismiss the FAC. On
March 21, 2017, the Court granted Kellogg's motion to dismiss the
Plaintiff's FAC.
On April 5, 2017, the Plaintiff filed a second amended complaint
("SAC"). The Plaintiff's SAC alleges five causes of action,
including (1) violation of the California False Advertising Law
("FAL"); (2) violation of the California Consumers Legal Remedies
Act ("CLRA"); (3) violation of the California Unfair Competition
Law ("UCL") under the fraudulent, unfair, and unlawful prongs; (4)
breach of express warranty; and (5) breach of the implied warranty
of merchantability.
On April 19, 2017, Kellogg filed a motion to dismiss the
Plaintiff's SAC. On Aug. 10, 2017, the Court granted in part and
denied in part Kellogg's motion to dismiss the Plaintiff's SAC.
On April 30, 2018, the Plaintiff filed a motion for class
certification. He seeks to certify the following class, which is
composed of four subclasses, under Federal Rule of Civil Procedure
23(b)(3): All persons in California who, on or after Aug. 29, 2012,
purchased for household use and not for resale or distribution:
(i) Raisin Bran Subclass: Kellogg's Raisin Bran (including
Omega-3) or Kellogg's Raisin Bran Crunch Cereals in a 13.7 oz.,
14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8 oz., 29 oz., 30.3 oz.,
43.3 oz., 56.6 oz., or 76.5 oz. package stating heart healthy.
(ii) Smart Start Subclass: Kellogg's Smart Start Original
Antioxidants cereal in a 17.3 oz. package.
(iii) Frosted Mini-Wheats Subclass: Kellogg's Frosted
Mini-Wheats Bite Size (Original, Maple Brown Sugar, Strawberry, or
Blueberry varieties), Big Bites (Original variety), Little Bites
(Chocolate or Cinnamon Roll varieties), or Touch of Fruit in the
Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz.,
15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package.
(iv) Nutri-Grain Soft-Baked Breakfast Bar Subclass: Kellogg's
Nutri-Grain Soft-Baked Breakfast Bars (Blueberry, Strawberry,
Cherry, Raspberry, and Variety Pack varieties), in 8-bar, 9-bar,
16-bar, or 24-bar counts with packaging stating, the wholesome
goodness you need to shine your brightest!
Kellogg also filed a motion based on Daubert v. Merrell Dow
Pharmaceuticals, Inc.,to exclude the opinion testimony of one of
the Plaintiff's damages experts, Steven P. Gaskin, on June 11,
2018.
Judge Koh granted in part and denied in part the Plaintiff's motion
for class certification, and denied Kellogg's motion to exclude the
opinion testimony of Steven P. Gaskin under Daubert.
She certified the following Rule 23(b)(3) class, which is composed
of three subclasses: All persons in California who, on or after
Aug. 29, 2012, purchased for household use and not for resale or
distribution:
(i) Raisin Bran Subclass: Kellogg's Raisin Bran (including
Omega-3) or Kellogg's Raisin Bran Crunch Cereals in a 13.7 oz.,
14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8 oz., 29 oz., 30.3 oz.,
43.3 oz., 56.6 oz., or 76.5 oz. package stating heart healthy.
(ii) Smart Start Subclass: Kellogg's Smart Start Original
Antioxidants cereal in a 17.3 oz. package.
(iii) Frosted Mini-Wheats Subclass: Kellogg's Frosted
Mini-Wheats Bite Size (Original, Maple Brown Sugar, Strawberry, or
Blueberry varieties), Big Bites (Original variety), Little Bites
(Chocolate or Cinnamon Roll varieties), or Touch of Fruit in the
Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz.,
15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package.
She appointed Stephen Hadley as representative of the class. As
Kellogg does not challenge the adequacy of the proposed class
counsel, she also appointed Jack Fitzgerald of The Law Office of
Jack Fitzgerald, P.C., as the class counsel.
Among other things, the Judge finds that Plaintiff has failed to
satisfy Rule 23(b)(3) predominance as to (1) the Plaintiff's
proposed Nutri-Grain Soft-Baked Breakfast Bar Subclass; and (2) the
Plaintiff's deceptive omission theory of liability. However, she
also finds that the Plaintiff has established Rule 23(b)(3)
predominance as to the remainder of his proposed subclasses and
theories of liability.
Accordingly, she denied the Plaintiff's motion for class
certification only as to the Plaintiff's proposed Nutri-Grain
Soft-Baked Breakfast Bar Subclass and the Plaintiff's deceptive
omission theory of liability. Moreover, because she denied class
certification as to the Plaintiff's deceptive omission theory of
liability, she denied as moot Kellogg's motion to exclude Gaskin's
expert testimony to the extent that it concerns Gaskin's proposed
advantage realized damages model.
A full-text copy of the Court's Aug. 17, 2018 Order is available at
https://is.gd/QcLkMs from Leagle.com.
Stephen Hadley, Plaintiff, represented by Melanie Rae Persinger --
melanie@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC, Trevor Matthew Flynn -- trevor@jackfitzgeraldlaw.com -- Law
Office of Jack Fitzgerald, PC & Jack Fitzgerald --
jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC.
Kellogg Sales Company, Defendant, represented by Kenneth Kiyul Lee
-- klee@jenner.com -- Jenner & Block LLP, Alexander Michael Smith
-- asmith@jenner.com -- Jenner and Block LLP, Dean N. Panos --
dpanos@jenner.com -- Jenner And Block LLP, Kate Tainsky Spelman,
Jenner and Block LLP & Richard P. Steinken, Jenner & Block LLP, pro
hac vice.
Great Lakes Growthworks, llc, Miscellaneous, represented by John
Lund Krieger -- jkrieger@dickinson-wright.com -- Dickinson Wright
PLLC.
Post Foods, LLC, Miscellaneous, represented by Tarifa B. Laddon --
tarifa.laddon@FaegreBD.com -- Faegre Baker Daniels LLP.
KINDERCARE EDUCATION: Fails to Pay Proper OT, Gonzalez Claims
-------------------------------------------------------------
IBETH GONZALEZ, individually and on behalf of all others similarly
situated, Plaintiff v. KINDERCARE EDUCATION LLC; and DOES 1 through
100, Defendants, Case No. BC719074 (Cal. Super., Los Angeles Cty.,
Aug. 23, 2018) seeks to recover from the Defendant unpaid overtime
compensation, prejudgment interest, liquidated damages, reasonable
attorneys' fees, and costs.
The Plaintiff Gonzalez was employed by the Defendants as a
non-exempt hourly employee.
KinderCare Education LLC provides early childhood education and
development programs that focus on health, safety, and development
of the child. The company was formerly known as Knowledge Universe
Education LLC and changed its name to KinderCare Education LLC in
January 2016. The company was founded in 1983 and is based in
Portland, Oregon. [BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Sean M. Blakely, Esq.
Joshua S. Falakassa, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Suite 1550
El Segunao, CA 90245
Telephone: (424) 292-2350
Facsimile: (424) 292-2355
E-mail: phaines@haineslawgroup.com
sblakely@haineslawgroup.com
jfalakassa@haineslawgroup.com
KNIGHT-SWIFT TRANSPORT: "Slack" Settlement Release Disputed
-----------------------------------------------------------
Knight-Swift Transportation Holdings Inc. disclosed in its Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2018, that parties in the
Washington Overtime Class Action are disputing the scope of
settlement release.
The case was filed on September 9, 2011 with plaintiff Troy Slack,
and defendants Swift Transportation Company of Arizona, LLC and
Swift Transportation Corporation. The case is currently pending in
the U.S. District Court for the Western District of Washington.
The plaintiffs allege one or more of the following, pertaining to
Washington state-based driving associates: that Swift 1) failed to
pay minimum wage; 2) failed to pay overtime; 3) failed to pay all
wages due at established pay periods; 4) failed to provide proper
meal and rest periods; 5) failed to provide accurate wage
statements; and 6) unlawfully deducted from employee wages. The
plaintiffs seek unpaid wages, exemplary damages, interest, other
costs, and attorneys' fees.
On August 29, 2017, the parties in the Slack case reached a
settlement; however, the parties are currently disputing the scope
of the settlement release.
The Company said, "There have been no significant developments in
the matter during the first half of 2018. The likelihood that a
loss has been incurred is probable and estimable, and the loss has
accordingly been accrued."
Knight-Swift Transportation Holdings Inc., together with its
subsidiaries, provides truckload transportation and logistics
services in the United States, Mexico, and Canada. The company
operates through six segments: Knight Trucking, Knight Logistics,
Swift Truckload, Swift Dedicated, Swift Refrigerated, and Swift
Intermodal. The Company was founded in 1989 and is headquartered
in Phoenix, Arizona.
KNIGHT-SWIFT TRANSPORT: Contractor Misclassification Suit Pending
-----------------------------------------------------------------
Knight-Swift Transportation Holdings Inc. disclosed in its Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2018, that the parties in the
Ninth Circuit Independent Contractor Misclassification Class Action
have discussed settlement.
The case was filed on December 22, 2009, with plaintiffs Joseph
Sheer, Virginia Van Dusen, Jose Motolinia, Vickii Schwalm, Peter
Wood, and defendants Swift Transportation Co., Inc., Interstate
Equipment Leasing, Inc., Jerry Moyes, and Chad Killebrew. It is
currently pending in the U.S. District Court of Arizona and Ninth
Circuit Court of Appeals.
The putative class alleges that Swift misclassified independent
contractors as independent contractors, instead of employees, in
violation of the FLSA and various state laws. The lawsuit also
raises certain related issues with respect to the lease agreements
that certain independent contractors have entered into with
Interstate Equipment Leasing, LLC. The putative class seeks unpaid
wages, liquidated damages, interest, other costs, and attorneys'
fees.
In January 2017, the district court issued an order finding that
the plaintiffs had signed contracts of employment and thus the case
could properly proceed in court, instead of arbitration. Swift has
appealed this decision to the Ninth Circuit Court of Appeals and
the parties have discussed settlement.
The Company said, "There were no significant developments during
the first half of 2018. The likelihood that a loss has been
incurred is probable and estimable, and the loss has accordingly
been accrued."
Knight-Swift Transportation Holdings Inc., together with its
subsidiaries, provides truckload transportation and logistics
services in the United States, Mexico, and Canada. The company
operates through six segments: Knight Trucking, Knight Logistics,
Swift Truckload, Swift Dedicated, Swift Refrigerated, and Swift
Intermodal. The Company was founded in 1989 and is headquartered
in Phoenix, Arizona.
KNIGHT-SWIFT TRANSPORT: Reaches Tentative Pact in 5 Class Actions
-----------------------------------------------------------------
Knight-Swift Transportation Holdings Inc. disclosed in its Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2018, that the parties in five
California Wage, Meal, and Rest Class Actions have reached a
tentative settlement.
These cases are:
* John Burnell (individually and on behalf of all others
similarly situated) vs. Swift Transportation Co., Inc, filed on
March 22, 2010, and currently pending in the U.S. District Court
for the Central District of California;
* James R. Rudsell (individually and on behalf of all others
similarly situated) vs. Swift Transportation Co. of Arizona, LLC
and Swift Transportation Company, filed on April 5, 2012, and
currently pending in the U.S. District Court for the Central
District of California;
* Lawrence Peck (individually and on behalf of all others
similarly situated) vs. Swift Transportation Co. of Arizona, LLC,
filed on September 25, 2014, and currently pending in the U.S.
District Court for the Central District of California;
* Sadashiv Mares (individually and on behalf of all others
similarly situated) vs. Swift Transportation Co. of Arizona, LLC,
filed on February 27, 2015, and currently pending in the U.S.
District Court for the Central District of California; and
* Thor Nilsen (individually and on behalf of all others
similarly situated) vs. Swift Transportation Co. of Arizona, LLC,
filed on October 15, 2015, and currently pending in the U.S.
District Court for the Central District of California.
The plaintiffs generally allege one or more of the following: that
the Company 1) failed to pay the California minimum wage; 2) failed
to provide proper meal and rest periods; 3) failed to timely pay
wages upon separation from employment; 4) failed to pay for all
hours worked; 5) failed to pay overtime; 6) failed to properly
reimburse work-related expenses; and 7) failed to provide accurate
wage statements.
The Company said, "The parties have reached a tentative settlement
of the matter. As such, the likelihood that a loss has been
incurred is probable and estimable, and the loss has accordingly
been accrued."
Knight-Swift Transportation Holdings Inc., together with its
subsidiaries, provides truckload transportation and logistics
services in the United States, Mexico, and Canada. The company
operates through six segments: Knight Trucking, Knight Logistics,
Swift Truckload, Swift Dedicated, Swift Refrigerated, and Swift
Intermodal. The Company was founded in 1989 and is headquartered
in Phoenix, Arizona.
LARAMEE'S CLEANERS: Denied Payment of Overtime Wages, Park Says
---------------------------------------------------------------
Kyung Jun Park, individually and on behalf of themselves and all
others similarly situated, Plaintiffs, vs. Laramee's Cleaners, LLC
and Jae Shin, Defendants, Case No. 18-cv-30149 (D. Mass., September
12, 2018), seeks to recover unpaid wages, unpaid minimum wages and
unpaid overtime compensation, interests, damages for unreasonably
delayed payment of wages, and reasonable attorneys' fees and costs
and disbursements of the action pursuant to the Fair Labor
Standards Act, the Massachusetts Wage Act and the Massachusetts
Minimum Fair Wage Act.
Park was employed as an ironer and a packer of clothes by Laramee's
Cleaners located at 396 Stockbridge Road, Great Barrington, MA from
June 2016 to May 2018. Park was required to work for Laramee's well
in excess of forty hours per week without overtime, notes the
complaint. Defendants also did not have any timekeeping system to
properly record their employees' hours worked, it adds. [BN]
The Plaintiff is represented by:
Howard M. Brown, Esq.
BOSTON EMPLOYMENT LAW, PC
1170 Beacon St. Suite 200
Brookline, MA 02446
Tel: (617) 566-8090
Email: hmb@bostonemploymentlaw.com
- and -
Ken H. Maeng, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Ave. Suite 10G
Flushing, NY 11354
Tel: (718) 353-8588
Email: kmaeng@hanglaw.com
LENDINGCLUB CORP: Calif. Securities Case Settlement Approved
------------------------------------------------------------
LendingClub Corporation disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2018, that the U.S. District Court for the Northern
District of California has approved the settlement agreement in the
"Evellard" and "Wertz" consolidated suit. The case will be
dismissed with prejudice and settlement proceeds will be
distributed to members of the impacted class.
In May 2016, two related putative securities class actions
(entitled Evellard v. LendingClub Corporation, et al., No.
16-CV-2627-WHA, and Wertz v. LendingClub Corporation, et al., No.
16-CV-2670-WHA) were filed in the United States District Court for
the Northern District of California, naming as defendants the
Company and certain of its officers and directors; these matters
were subsequently consolidated into a single action.
After a motion to dismiss, which was ultimately granted in part and
denied in part, the plaintiffs filed an amended complaint and the
parties began discovery. In September 2017 the plaintiffs filed
their motion for class certification, which the Company opposed.
The motion was granted in an October 2017 Order. In that Order,
the Court also granted a motion by the plaintiffs in the
Consolidated State Court Action to intervene in the federal
action.
Following court-ordered mediation in November 2017 and January
2018, the Company agreed to a preliminary settlement in which the
Company would pay a total of US$125.0 million in exchange for a
dismissal of both the federal and state securities class actions
with prejudice. Of that amount, US$47.75 million will be paid from
insurance. The Court issued an order granting preliminary approval
of the settlement on March 16, 2018 and set a hearing for final
approval of the settlement for July 19, 2018.
To satisfy the payment obligations, insurance carriers directly
paid US$38.2 million to a settlement administrator in March 2018
and an additional US$9.6 million in April 2018. The Company paid
US$14.75 million to the settlement administrator in April 2018 and
paid the remaining US$62.5 million in July 2018.
The Company said, "The Court approved the settlement on July 19,
2018 and these matters will be dismissed with prejudice.
Settlement proceeds will be distributed to members of the impacted
class."
LendingClub operates America's largest online lending marketplace
platform that connects borrowers and investors. The company is
based in San Francisco, California.
LENDINGCLUB CORP: Nov. 2018 Hearing on FTC-Related Class Suits
--------------------------------------------------------------
Trial on a motion to consolidate putative shareholder class action
lawsuits related to a Federal Trade Commission lawsuit against
LendingClub Corporation and to determine a lead plaintiff has been
set for November 2018, according to LendingClub's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018.
The Company said, "In April 2018, following the announcement of the
FTC's litigation against the Company, putative shareholder class
action litigation was filed against the Company and certain of its
current and former officers and directors alleging violations of
securities laws in connection with the Company's description of
fees in securities filings. A motion to consolidate the matters
and determine a lead plaintiff has been set for November 2018.
These lawsuits are in the early stages. The Company denies the
allegations and will vigorously defend against the allegations."
LendingClub operates America's largest online lending marketplace
platform that connects borrowers and investors. The company is
based in San Francisco, California.
LENDINGCLUB CORP: Still Faces Moses Class Action in Nevada
----------------------------------------------------------
LendingClub Corporation still defends itself against a putative
class action lawsuit styled Moses v. Lending Club,
2:17-cv-03071-JAD-PAL, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018.
In December 2017, the putative class action lawsuit was filed
against the Company in the State of Nevada alleging violations of
the federal Fair Credit Reporting Act.
The complaint alleges that the Company improperly accessed the
credit report of the plaintiff, who had formerly had a loan
serviced by the Company. The complaint further alleges, on
information and belief, that the Company improperly accessed credit
reports of other similarly situated individuals.
The Company said, "The lawsuit is in its early stages and the
Company denies the allegations of the complaint and will vigorously
defend against the allegations, including a motion to stay the
class action on the grounds that the plaintiff has waived the right
to bring a class action on must individually arbitrate any claim."
LendingClub operates America's largest online lending marketplace
platform that connects borrowers and investors. The company is
based in San Francisco, California.
LHC Group: Bledsoe Seeks Unpaid Overtime Wages, Damages
-------------------------------------------------------
Carolyn Bledsoe, individually and on behalf of all others similarly
situated, Plaintiff, v. LHC Group, Inc., Defendant, Case No. No.
18-cv-02863, (D. Ariz., September 12, 2018) seeks to recover
compensation, overtime wages, liquidated damages, attorneys' fees
and costs pursuant to the Fair Labor Standards Act of 1938.
LHC Group -- https://lhcgroup.com/ -- is a national provider of
post-acute healthcare services with more than 780 locations in 37
states, providing high-quality care to patients through home
health, hospice, personal care, and facility-based services.
Bledsoe worked as home health "clinician" for LHC. She claims to
have worked in excess of 40 hours per week without being paid
overtime premium. [BN]
Plaintiff is represented by:
James B. Zouras, Esq.
Teresa M. Becvar, Esq.
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, IL 60601
Email: jzouras@stephanzouras.com
tbecvar@stephanzouras.com
- and -
Daniel Bonnett, Esq.
Michael Licata, Esq.
MARTIN & BONNETT, P.L.L.C.
4647 N. 32nd Street, Suite 185
Phoenix, AZ 85018
Tel: (602) 240-6900
Email: info@martinbonnett.com
LIEN ENFORCEMENT: Augustine Sues Over Illegal Collection Calls
--------------------------------------------------------------
Ophelia Augustine, individually and on behalf of all others
similarly situated, Plaintiff, v. Lien Enforcement, Inc.,
Defendant, Case No. 18-cv-02115 (S.D. Cal., September 12, 2018),
seeks damages and any other available legal or equitable remedies
resulting from violations of the of the Telephone Consumer
Protection Act.
Lien Enforcement, Inc. -- http://www.lienenforcementinc.com/-- is
a specialized collection agency providing receivables services. On
July 20, 2018, Lien called Augustine's cellular telephone in an
attempt to collect an alleged debt using an automatic telephone
dialing system and a prerecorded message. [BN]
Plaintiff is represented by:
Joshua Swigart, Esq.
Yana A. Hart, Esq.
HYDE AND SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022 to 26
Email: Josh@westcoastlitigation.com
yana@westcoastlitigation.com
MAMMOTH ENERGY: Putative Class Action in Puerto Rico Underway
-------------------------------------------------------------
Mammoth Energy Services, Inc. is facing a putative class action
lawsuit related to an electrical failure in Puerto Rico, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2018.
On June 27, 2018, the Company's registered agent notified the
Company that it had been served with a putative class action
lawsuit titled Wendco of Puerto Rico Inc.; Multisystem Restaurant
Inc.; Restaurant Operators Inc.; Apple Caribe, Inc.; on their own
behalf and in representation of all businesses that conduct
business in the Commonwealth of Puerto Rico vs. Mammoth Energy
Services Inc.; Cobra Acquisitions, LLC; D. Grimm Puerto Rico, LLC;
Aseguradoras A, B & C; John Doe; Richard Doe, in the Commonwealth
of Puerto Rico Superior Court of San Juan.
The plaintiffs allege negligent acts by the defendants caused an
electrical failure in Puerto Rico resulting in damages of at least
US$300 million.
The Company believes this claim is without merit and will
vigorously defend the action. However, the Company continues to
evaluate the background facts and at this time is not able to
predict the outcome of this lawsuit or whether it will have a
material impact on the Company's financial position, results of
operations or cash flows.
Mammoth Energy Services, Inc. operates as an integrated oilfield
service company. The Company operates in four segments: Pressure
Pumping Services, Infrastructure Services, Natural Sand Proppant
Services, and Contract Land and Directional Drilling Services. It
was founded in 2014 and is headquartered in Oklahoma City,
Oklahoma.
MARICOPA COUNTY, AZ: Reply to Bid to Enforce in Graves Struck
-------------------------------------------------------------
In the case, Fred Graves, Isaac Popoca, on their own behalf and on
behalf of a class of all pretrial detainees in the Maricopa County
Jails, Plaintiffs, v. Paul Penzone, Sheriff of Maricopa County;
Bill Gates, Steve Gallardo, Denny Barney, Steve Chucri, and Clint
L. Hickman, Maricopa County Supervisors, Defendants, Case No.
CV-77-00479-PHX-NVW (D. Ariz.), Judge Neil V. Wake of the U.S.
District Court for the District of Arizona (i) granted the
Defendants' Motion to Strike Plaintiffs' Reply to the Motion to
Enforce and Declarations; (ii) denied the Plaintiffs' Motion to
Enforce Fourth Amended Judgment and for Additional Relief; and
(iii) denied the Plaintiffs' Motion to Re-Open Discovery and for a
Scheduling Order.
The Defendants' compliance reports and the Plaintiffs' motions
dispute whether the Revised Fourth Amended Judgment should be
terminated, whether additional prospective relief under the Prison
Litigation Reform Act is required, and whether additional discovery
and another evidentiary hearing is required to decide those issues.
On June 21, 2018, oral argument was heard regarding the pending
motions and the Defendants' proof of compliance with the Revised
Fourth Amended Judgment.
Pretrial detainees held in the Maricopa County Jails brought the
class action in 1977 against the Maricopa County Sheriff and the
Maricopa County Board of Supervisors seeking injunctive relief for
violations of their civil rights. On March 27, 1981, the parties
entered into a consent decree that addressed and regulated aspects
of the County jail operations as they applied to pretrial
detainees.
On Jan. 10, 1995, upon stipulation of the parties, the 1981 consent
decree was superseded by the Amended Judgment. The stipulated
Amended Judgment expressly did not represent a judicial
determination of any constitutionally mandated standards applicable
to the Maricopa County Jails. The 116-paragraph Amended Judgment
included specific requirements regarding population and housing
limitations; dayroom access; access to reading materials; access to
religious services; mail; telephone privileges; clothes and towels;
sanitation, safety, hygiene, and toilet facilities; access to law
library; medical, dental and psychiatric care; intake areas;
mechanical restraints and segregation; recreation time outside;
inmate classification; visitation; food; staff members, training,
and screening; facilities for the handicapped; disciplinary policy
and procedures; inmate grievance policy and procedures; reports and
record keeping; and security override.
On Oct. 22, 2008, the Court made detailed findings of fact and
conclusions of law and entered the Second Amended Judgment.
Certain provisions of the Amended Judgment were found to remain
necessary to correct a current and ongoing violation of a federal
right, to extend no further than necessary to correct the violation
of the federal right, to be narrowly drawn, and to be the least
intrusive means to correct the violation. Other provisions were
modified or vacated based on the evidence presented. The
provisions remaining in effect, as originally written or as
modified, were restated in the Second Amended Judgment.
In addition to making detailed findings and entering the Second
Amended Judgment on Oct. 22, 2008, the Court ordered the parties to
confer immediately regarding prompt compliance and to submit status
reports. On July 30, 2010, the parties filed a joint report
stating each party's position regarding the status of Defendants'
compliance with the medical and mental health portions of the
Second Amended Judgment.
On May 24, 2012, the Defendants' motion to terminate the remaining
nonmedical provisions of the Second Amended Judgment was granted,
and those provisions of the Second Amended Judgment that remained
in effect were restated in the Third Amended Judgment.
On Aug. 9, 2013, the Defendants moved to terminate the Third
Amended Judgment. The Court ordered that for evidence to be
relevant to the motion, it must tend to show whether any current
and ongoing constitutional violation existed on Aug. 9, 2013. On
Sept. 30, 2014, the Court made detailed findings of fact and
conclusions of law regarding whether and to what extent prospective
relief in the Third Amended Judgment should be terminated. Because
the Defendants did not prove compliance with any of the three
substantive paragraphs of the Third Amended Judgment, i.e.,
sufficient screening at intake, ready access to care for serious
medical and mental health needs, and continuity of prescription
medications, the Court found that the prospective relief ordered in
those three paragraphs remained necessary to correct current and
ongoing constitutional violations.
Also on Sept. 30, 2014, after six years of reviewing evidence,
expert opinion, and legal argument regarding conditions in the
Maricopa County Jails, and after allowing both parties opportunity
to propose remedies to correct constitutional deficiencies, the
Court ordered remedies that did not exactly track constitutional
standards but were practical, concrete measures necessary to
correct constitutional violations. The Defendants were ordered to,
within 60 days, adopt new policies or amend existing policies
regarding 31 specific requirements for providing medical and mental
health care, implement the policies within 150 days, collect and
summarize compliance data for a period of 180 days after
implementation of the policies, and report documentation showing
completion of each stage.
Therefore, Paragraphs 2, 3, and 4 of the Fourth Amended Judgment
continued the prospective relief in the Third Amended Judgment, and
Paragraph 5 of the Fourth Amended Judgment defined specifically how
the Defendants would prove their compliance with Paragraphs 2, 3,
and 4. Paragraph 5(a) identified the 31 specific requirements for
providing medical and mental health care that were expected to
become institutionalized through appropriate policies, staffing,
training, and monitoring.
On Oct. 14, 2014, the Plaintiffs moved for reconsideration of five
remedial provisions of the Fourth Amended Judgment. On Dec. 10,
2014, the Court granted the Plaintiffs' motion in part, amended one
of the 31 subparagraphs of Paragraph 5(a) of the Fourth Amended
Judgment, and entered the Revised Fourth Amended Judgment.
On Sept. 15, 2015, the Defendants filed a report of the data they
had collected and summarized pursuant to the Revised Fourth Amended
Judgment. On Sept. 16, 2015, the Court ordered the Defendants to
file a supplemental report regarding seven subparagraphs of
Paragraph 5(a), explaining why the reported compliance rates should
be considered sufficient to establish proof of compliance. On
Sept. 25, 2015, the Defendants filed a supplemental report.
On Oct. 15, 2015, the Court granted the Plaintiffs' request that
they be permitted to file their response to the Defendants'
compliance reports by Jan. 15, 2016. It further ordered that the
Plaintiffs' response address only whether the Defendants had
demonstrated compliance with Paragraph 5 of the Revised Fourth
Amended Judgment related to each of the 31 subparagraphs of
Paragraph 5(a).
The Plaintiffs moved for reconsideration of that order, requesting
opportunity for them and their experts to review individual medical
records off-site and to conduct a site visit at the Jails to review
medical records. The Court granted Plaintiffs' motion for
reconsideration to the extent that their counsel and their medical
experts were permitted to review individual medical records on-site
within certain limitations, the Defendants were permitted to
produce paper copies of some of the requested records, and the
Plaintiffs' time to respond to the Defendants' compliance reports
was extended to Feb. 26, 2016.
On March 1, 2017, the Court denied the Plaintiffs' motions, found
the Defendants had demonstrated compliance with certain
subparagraphs of Paragraph 5(a) of the Revised Fourth Amended
Judgment, and found they had not demonstrated compliance with
subparagraphs (17), (20), (22), (23), (24), (25), (26), (27), (28),
and (29). On March 16, 2017, they provided a written plan for
collecting and summarizing compliance data for review and
consideration by the Plaintiffs.
On July 28, 2017, the Defendants filed their Report Regarding
Corrective Actions, Compliance Data Collection and Compliance Data
Summaries for April, May, and June 2017. On Aug. 2, 2017, they
served the Plaintiffs with the raw data summarized in their
compliance report. On Sept. 29, 2017, the Defendants filed a
supplemental report regarding compliance with subparagraph (17) of
Paragraph 5(a) of the Revised Fourth Amended Judgment and produced
to the Plaintiffs a supplement of the raw data summarized in their
compliance reports. On Nov. 16, 2017, the Defendants again
supplemented their production of raw data.
On Dec. 22, 2017, the Plaintiffs filed their response to the
Defendants' compliance reports, a Motion to Enforce Fourth Amended
Judgment and for Additional Relief, and a Motion to Re-Open
Discovery and for a Scheduling Order. The Defendants moved to
strike the Plaintiffs' reply in support of their Motion to Enforce
because it constituted an unauthorized sur-reply regarding the
Defendants' compliance reports.
On June 21, 2018, oral argument was heard on the Defendants'
compliance reports and all pending motions. On June 22, 2018, the
Defendants were granted leave to supplement their compliance
reports regarding subparagraphs (22) and (23) of Paragraph 5(a) of
the Revised Fourth Amended Judgment. On July 13, 2018, the
Defendants filed their supplemental report regarding subparagraphs
(22) and (23). The Plaintiffs' request for additional discovery
was granted, and the Plaintiffs' time to respond to the Defendants'
supplemental report and the Defendants' time to reply were
extended. Therefore, the Defendants' compliance with subparagraphs
(22) and (23) of Paragraph 5(a) of the Revised Fourth Amended
Judgment will be decided by a later order.
Judge Wake will deny the Plaintiffs' Motion to Enforce the Revised
Fourth Amended Judgment and for Additional Relief; and will grant
the Defendants' Motion to Strike Plaintiffs' Reply to the Motion to
Enforce and Declarations. He finds that the Plaintiffs' Motion to
Enforce seeks reconsideration of orders issued more than three
years ago and repeatedly restated. They have not shown manifest
error, new facts, or new legal authority.
He will also deny the Plaintiffs' Motion to Re-Open Discovery and
for a Scheduling Order. He finds that with each round of
implementation, assessment, and reporting, the Plaintiffs have
requested and received extensions of time to tour the Maricopa
County Jails facilities, speak with pretrial detainees and staff,
review records, and file their response to Defendants' compliance
reports. The Plaintiffs' interpretation of "current" as requiring
re-opening of discovery immediately before the Court determines
whether to terminate any provisions of previously ordered
prospective relief would make it impossible to ever have a record
of "current" conditions or demonstrable proof that corrections had
become institutionalized. And it would ensure eternal judicial
oversight of the Maricopa County Jails.
As to the Defendant's compliance with the Revised Fourth Amended
Judgment, he gives little weight to the Plaintiffs' belated
contention that the Defendants' compliance assessments have
"serious methodological flaws." The Defendants were ordered to
meet and confer with the Plaintiffs by March 17, 2017, regarding
the methodology to be used for collecting and summarizing
compliance data so that any objections by the Plaintiffs could be
resolved before Defendants began collecting data in April 2017.
The Plaintiffs did not object to or disagree with the Defendants'
proposed methodology. Any objections that could have been made by
the Plaintiffs before April 2017 are therefore waived.
However, he considers and determines whether the data the
Defendants report they collected and summarized does in fact
demonstrate compliance with subparagraphs (17), (20), (22), (23),
(24), (25), (26), (27), (28), and (29) of the Revised Fourth
Amended Judgment. He finds, that the Defendants have shown that
they have sufficiently implemented the remedy described in the
subparagraphs 5(a)(17).
For these reasons, Judge Wake (i) granted the Defendants' Motion to
Strike Plaintiffs' Reply to the Motion to Enforce and Declarations;
(ii) denied the Plaintiffs' Motion to Enforce Fourth Amended
Judgment and for Additional Relief; and (iii) denied the
Plaintiffs' Motion to Re-Open Discovery and for a Scheduling
Order.
The Defendants have demonstrated compliance with subparagraphs
(17), (20), (24), (25), (27), (28), and (29) of Paragraph 5(a) of
the Revised Fourth Amended Judgment. They've demonstrated
compliance with subparagraph (26) of Paragraph 5(a) of the Revised
Fourth Amended Judgment except to the extent that further evidence
is required concerning instances of disciplinary isolation. Their
compliance with subparagraphs (22) and (23) of Paragraph 5(a) of
the Revised Fourth Amended Judgment is undecided pending completion
of supplemental briefing. Adjudication of compliance with
Paragraph 5(a) and lifting of that paragraph and paragraphs 2, 3,
and 4 of the Revised Fourth Amended Judgment is withheld until
adjudication of compliance with subparagraphs (22), (23), and (26)
of Paragraph 5(a).
By Sept. 21, 2018, the Defendants will file a proposed plan for
demonstrating compliance with subparagraph (26) of Paragraph 5(a)
of the Revised Fourth Amended Judgment concerning instances of
disciplinary isolation.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/btGxXC from Leagle.com.
Fred Graves & Isaac Popoca, Plaintiffs, represented by Theodore C.
Jarvi, Law Offices of Theodore Jarvi, Eric Balaban, ACLU, Gabriel
Eber, ACLU & Kathleen E. Brody, ACLU.
Paul Penzone, Sheriff of Maricopa County, Bill Gates, Maricopa
County Supervisor, District 3, Steve Gallardo, Maricopa County
Supervisor, District 5, Denny Barney, Maricopa County Supervisor,
District 1, Steve Chucri, Maricopa County Supervisor, District 2 &
Clint L Hickman, Maricopa County Supervisor, District 4,
Defendants, represented by Michele Marie Iafrate , Iafrate &
Associates & Sherle Rubin Flaggman, Maricopa County Attorneys
Office - Civil Services Division.
Todd Wilcox, Dr, Movant, represented by Stephen C. Clark, Jones
Waldo Holbrook & McDonough.
MCNEELY LAW: Mona Sues Over Vague Collection Letter
---------------------------------------------------
Kimberly K. Mona, individually and on behalf of all others
similarly situated, Plaintiff, v. McNeely Law Group, P.C.,
Defendants, Case No. 18-cv-12848, (E.D. Mich., September 12, 2018),
seeks actual and statutory damages, costs and reasonable attorneys'
fees under the Fair Debt Collection Practices Act.
Defendant is a law firm based in Oakland County, Michigan. They
attempted to collect a defaulted consumer debt from Mona. However,
its collection letter dated July 11, 2018 failed to clearly specify
the name of the creditor to whom her debt was owed. The letter
refers to at least four separate entities purportedly connected in
some way with Mona's debt, notes the complaint. [BN]
Plaintiff is represented by:
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Tel: (561) 826-5477
Fax: (561) 961-5684
Email: jdavidson@gdrlawfirm.com
- and -
Ronald S. Weiss, Esq.
7035 Orchard Lake Road, Suite 600
West Bloomfield, MI 48322
Tel: (248) 737-8000
Fax: (248) 737-8003
Email: rweiss@michiganlemonlaw.com
MDL 2617: $31MM Attorneys' Fees Awarded to Class Counsel
--------------------------------------------------------
In the case, IN RE ANTHEM, INC. DATA BREACH LITIGATION, Case No.
15-MD-02617-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District
Court for the Northern District of California, San Jose Division,
granted in part and denied in part the Plaintiffs' motion for
attorneys' fees, litigation expenses, and service awards to the
class representatives; and (ii) granted the Plaintiffs' motions to
seal.
Before the Court is a motion for attorneys' fees, litigation
expenses, and service awards to the class representatives arising
out of the class action settlement between the Plaintiffs and the
Defendants. In connection with that motion, the Plaintiffs have
also moved to file certain portions of their billing records under
seal. They seek to seal portions of billing entries that contain
information covered by the attorney-client privilege and the
work-product doctrine.
The Class Counsel asks for 33% of the $115 million settlement
(i.e., $37.95 million). The Class Counsel also submitted
declarations and invoices reflecting the $2,005,068.59 in
unreimbursed expenses that they incurred in the action. The
Plaintiffs request that the Court approves the service awards in
the amount of $5,000for 76 of the named Plaintiffs and $7,500 for
29 of the named Plaintiffs, to be deducted from the Settlement
Fund. Under Federal Rule of Civil Procedure 53(g)(2), the Special
Master's compensation must be paid by a party or from a fund within
the Court's control. The Court requested that the Special Master
make a recommendation about who should pay these fees.
After the Final Approval Hearing on Feb. 1, 2018, the Court decided
to appoint a Special Master to assist in reviewing the motion for
attorneys' fees. On Feb. 8, 2018, the Court appointed Hon. James
Kleinberg (Ret.) to serve as Special Master. Judge Kleinberg
issued his Report and Recommendation on April 24, 2018. The Court
held a hearing on June 14, 2018. At the hearing, the parties
agreed to extend the deadline for revoking exclusions and
submitting claims to July 19, 2018 because of the parties' April
2018 amendment to the Settlement.
Having considered the submissions of the parties, the arguments
made at the Feb. 1 and June 14, 2018 hearings, the relevant law,
and the record in the case, Judge Koh (i) adopted in part Judge
Kleinberg's Report and Recommendation to grant in part and deny in
part the Plaintiffs' motion for attorneys' fees, litigation
expenses, and service awards to class representatives; and (ii)
granted the Plaintiffs' motions to seal.
The Court awards as follows: (i) $31,050,000 in attorneys' fees to
the Class Counsel; (ii) $2,005,068.59 in unreimbursed expenses to
the Class Counsel; (iii) $132,000 as a total cost reserve ($60,000
for retention of a cybersecurity expert and $72,000 for operation
of the call center); and (iv) $597,500 in service awards ($5,000
each to the 76 named Plaintiffs and $7,500 each to the 29 named
Plaintiffs). She also ordered Judge Kleinberg's fees be paid from
the Class Counsel's attorneys' fees award.
Judge Koh finds that an award of 27% of the common fund is
appropriate. Such an award represents a multiplier of slightly
over 1.0, which falls within an acceptable range, adding further
support to the conclusion that the fees sought are reasonable.
Accordingly, she awarded the Class Counsel attorneys' fees in the
amount of $31.05 million. She believes that this amount adequately
compensates Class Counsel for their work in the case.
The Judge has not received any objections either to the amount of
these expenses or to the Class Counsel being reimbursed for these
expenses. The Special Master similarly did not take issue with
these expenses. Even if the total cost reserve of $132,000 is
combined with the $2,005,068.59 in unreimbursed expenses, the total
amount of $2,137,068.59 is still less than the $3 million maximum
negotiated amount in the Settlement Agreement. Accordingly, she
approved a cost reserve of $132,000.
Next, the Judge finds the requested awards reasonable. The named
Plaintiffs devoted substantial time and effort to the litigation,
which benefitted the Class, and none of the Named Plaintiffs will
receive any personal benefit beyond what any Settlement Class
Member will receive. She declines to follow the Special Master's
recommendation to deduct the service awards (totaling $597,500)
from the Plaintiffs' attorneys' fees. Rather than offsetting the
service awards against the Plaintiffs' attorneys' fees, she ordered
that the $597,500 in service awards be paid from the Settlement
Fund.
The Special Master recommends that his charges be borne by the
Class Counsel, not the Class. Judge Koh agrees. The Class Counsel
has the ability to pay and is more responsible than other parties,
if not solely responsible, for the reference to a special master.
The Class Counsel does not object. Accordingly, she ordered that
Judge Kleinberg's fees be paid from the Class Counsel's attorneys'
fees award.
Finally, as to the Plaintiffs' motions to seal, the Judge finds
that the information appears to fall squarely within the
work-product doctrine's core protection of the mental processes of
the attorney to allow the attorney to analyze and prepare the
client's case. No party raises a specific challenge to any of the
Plaintiffs' sealing designations. Accordingly, she granted the
Plaintiffs' motions to seal.
A full-text copy of the Court's Aug. 17, 2018 Order is available at
https://is.gd/rBpvT3 from Leagle.com.
Anthem, Inc., Customer Data Security Breach Litigation, Plaintiff,
represented by Craig Alan Hoover , Hogan Lovells US LLP, E. Desmond
Hogan , Hogan Lovells, Eve Hedy Cervantez , Altshuler Berzon LLP,
Michael McDonald Maddigan , Hogan Lovells US LLP, Peter R. Bisio ,
HOGAN LOVELLS US LLP & Michael Ben Pasternak , Michael Pasternak.
Laura Fowles, Plaintiff, represented by Eric H. Gibbs --
ehg@classlawgroup.com -- Gibbs Law Group LLP, Anthony J. LoPresti
-- tlopresti@altshulerberzon.com -- Altshuler Berzon LLP, Danielle
Evelyn Leonard -- dleonard@altshulerberzon.com -- Altshuler Berzon
LLP, Eve Hedy Cervantez -- ecervantez@altshulerberzon.com --
Altshuler Berzon LLP, Michael W. Sobol -- msobol@lchb.com -- Lieff
Cabraser Heimann & Bernstein, LLP, Nicole Diane Sugnet --
nsugnet@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP &
RoseMarie Maliekel -- rmaliekel@clarencedyer.com -- Clarence Dyer &
Cohen LLP.
Danny Juliano, Plaintiff, represented by Eric H. Gibbs, Gibbs Law
Group LLP, Anthony J. LoPresti, Altshuler Berzon LLP, Danielle
Evelyn Leonard, Altshuler Berzon LLP, Donald W. Stewart, Eve Hedy
Cervantez , Altshuler Berzon LLP, Greg William Foster, STEWART AND
STEWART PC, Nicole Diane Sugnet, Lieff Cabraser Heimann &
Bernstein, LLP & T. Dylan Reeves, STEWART & STEWART PC.
Susanne Powell, Casey Silva & Brent J. Gearhart, Plaintiffs,
represented by Eric H. Gibbs, Gibbs Law Group LLP, Anthony J.
LoPresti, Altshuler Berzon LLP, Clayeo C. Arnold, Clayeo C. Arnold,
A Professional Law Corporation, Danielle Evelyn Leonard, Altshuler
Berzon LLP, Eve Hedy Cervantez, Altshuler Berzon LLP, Joshua Haakon
Watson, Clayeo C. Arnold, A Professional Law Corporation & Nicole
Diane Sugnet, Lieff Cabraser Heimann & Bernstein, LLP.
Samantha Kirby, Plaintiff, represented by Eric H. Gibbs, Gibbs Law
Group LLP, Anthony J. LoPresti, Altshuler Berzon LLP, Clayeo C.
Arnold , Clayeo C. Arnold, A Professional Law Corporation, Danielle
Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez,
Altshuler Berzon LLP, Joshua Haakon Watson, Clayeo C. Arnold, A
Professional Law Corporation & Nicole Diane Sugnet, Lieff Cabraser
Heimann & Bernstein, LLP, Robert Ahdoot, Ahdoot & Wolfson, P.C. &
Tina Wolfson, Ahdoot & Wolfson, P.C.
Aswad Hood, Plaintiff, represented by Anthony J. LoPresti,
Altshuler Berzon LLP, Daniel C. Girard -- dcg@girardgibbs.com --
Girard Gibbs LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP,
David Michael Berger -- dmb@classlawgroup.com -- Girard Gibbs LLP,
Eric H. Gibbs -- ehg@classlawgroup.com -- Gibbs Law Group LLP, Eve
Hedy Cervantez, Altshuler Berzon LLP, Nicole Diane Sugnet, Lieff
Cabraser Heimann & Bernstein, LLP, Scott M. Grzenczyk --
smg@girardgibbs.com -- Girard Gibbs LLP & Steven Augustine Lopez --
sal@girardgibbs.com -- Girard Gibbs LLP.
Susan Morris, Plaintiff, represented by Eric H. Gibbs, Gibbs Law
Group LLP, Anthony J. LoPresti, Altshuler Berzon LLP, Clayeo C.
Arnold , Clayeo C. Arnold, A Professional Law Corporation, Danielle
Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez,
Altshuler Berzon LLP, Joshua Haakon Watson, Clayeo C. Arnold, A
Professional Law Corporation & Nicole Diane Sugnet, Lieff Cabraser
Heimann & Bernstein, LLP.
Joseph D'Angelo, III, Shawn P. Haggerty, Charity L. Latimer, Kurt
J. McLaughlin, Tamara Nedlouf, John A. Thomas, II & Richard
Gillespie, Plaintiffs, represented by Eric H. Gibbs , Gibbs Law
Group LLP, Anthony J. LoPresti , Altshuler Berzon LLP, Danielle
Evelyn Leonard , Altshuler Berzon LLP, Edward Adam Webb , Webb,
Klase & Lemond, LLC, Eve Hedy Cervantez , Altshuler Berzon LLP, G.
Franklin Lemond, Jr. , Webb, Klase and Lemond, LLC, Matthew C.
Klase , Webb, Klase & Lemond, LLC & Nicole Diane Sugnet , Lieff
Cabraser Heimann & Bernstein, LLP.
Lauren Roberts, Plaintiff, represented by Eric H. Gibbs, Gibbs Law
Group LLP, Anthony J. LoPresti, Altshuler Berzon LLP, Clayeo C.
Arnold, Clayeo C. Arnold, A Professional Law Corporation, Danielle
Evelyn Leonard, Altshuler Berzon LLP, Eve Hedy Cervantez, Altshuler
Berzon LLP, Joshua Haakon Watson, Clayeo C. Arnold, A Professional
Law Corporation & Nicole Diane Sugnet, Lieff Cabraser Heimann &
Bernstein, LLP.
Rosalynn C. Krissman, Plaintiff, represented by Bonny E. Sweeney --
bsweeney@hausfeld.com -- Hausfeld LLP, Christopher L. Lebsock --
clebsock@hausfeld.com -- Hausfeld LLP, Anthony J. LoPresti,
Altshuler Berzon LLP, Danielle Evelyn Leonard, Altshuler Berzon LLP
& Eve Hedy Cervantez, Altshuler Berzon LLP.
Anthem, Inc., formerly known as WellPoint Inc, Defendant,
represented by Craig Alan Hoover, Hogan Lovells US LLP, Michael
McDonald Maddigan, Hogan Lovells US LLP, Adam Cooke, Hogan Lovells
US LLP, Alexandria J. Reyes, Troutman Sanders, LLP, Allison Marie
Holt, HOGAN LOVELLS US LLP, Cassandra Lauren Crawford --
cassie.crawford@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Cavender C. Kimble -- ckimble@balch.com -- BALCH
& BINGHAM LLP, Chad R. Fuller , Troutman Sanders LLP, Christopher
W. Brooker -- cbrooker@wyattfirm.com -- Wyatt, Tarrant & Combs LLP,
Craig H. Smith, Hogan Lovells US LLP, David R. Boyd, Comey & Boyd,
E. Desmond Hogan, Hogan Lovells, Elizabeth C. Lockwood, Hogan
Lovells US LLP, Geraldine G. Sanchez -- sanchez@rhrsb.com -- Roach
Hewitt Ruprecht Sanchez & Bischoff, P.C., Glenn Virgil Whitaker --
gvwhitaker@vorys.com -- Vorys Sater Seymour & Pease, Gregory Haynes
-- ghaynes@wyattfirm.com -- Wyatt, Tarrant & Combs LLP, Jaime L.
Theriot, Troutman Sanders, LLP, Jasmeet Kaur Ahuja, Hogan Lovells
LLP, John Derrick Martin -- john.martin@nelsonmullins.com -- Nelson
Mullins Riley Scarborough LLP, Julia Bright Hartley, Lisa Fried,
Hogan Lovells US LLP, Lucile Hartley Cohen --
lucie.cohen@nelsonmullins.com -- Nelson Mullins Riley Scarborough
LLP, Mark A. Stafford --
mark.stafford@nelsonmullins.com -- Nelson Mullins Riley &
Scarborough, LLP, Mary Sameera Van Houten, Hogan Lovells US LLP,
Matthew H. Geelan -- Mgeelan@ddnctlaw.com -- Donahue, Durham &
Noonan, P.C., Melissa McCoy Gormly , Vorys, Sater Seymour and Pease
LLP, Michael G. Durham, Donahue Durham & Noonan PC, Michael C.
Theis, Hogan Lovells US LLP-Denver, Michael J. Tuteur, Foley &
Lardner LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan
Garrett Foell, Hogan Lovells, Neal F. Perryman, LEWIS RICE, LLC,
Patrick Joseph Dempsey, Hogan Lovels US LLP, Peter R. Bisio, HOGAN
LOVELLS US LLP, Robert Armand Perez, Sr., Perez Law Firm Co. LPA,
Robert Neal Webner, Vorys Sater Seymour and Pease LLP, Robin J.
Samuel, Hogan Lovells USA LLP, Ronald A. Norwood, LEWIS RICE, LLC,
Sally F. Zweig, KATZ & KORIN P.C., Stephen A. Loney, Jr., Hogan &
Hartson, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis &
William David Maxwell -- david.maxwell@hoganlovells.com -- Hogan
Lovells US LLP.tamante , Nelson Mullins, Vassiliki Iliadis &
William David Maxwell, Hogan Lovells US LLP.
Blue Cross of California, doing business as Anthem Blue Cross,
Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP,
E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan
Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke,
Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP,
Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja,
Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley
Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson
Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan
Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan
Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA
LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis &
William David Maxwell, Hogan Lovells US LLP.
The Anthem Companies, Inc., Defendant, represented by Craig Alan
Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells,
Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio,
HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R.
Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells
US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin,
Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile
Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera
Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan
Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J.
Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson
Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells
US LLP.
Anthem Blue Cross Life and Health Insurance Company, Defendant,
represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond
Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US
LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan
Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C.
Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells
LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP,
Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley
Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP,
Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell,
Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A.
Bustamante, Nelson Mullins, Vassiliki Iliadis & William David
Maxwell, Hogan Lovells US LLP.
The Anthem Companies of California, Inc., a California corporation,
Defendant, represented by Craig Alan Hoover, Hogan Lovells US LLP,
E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan
Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke,
Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP,
Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja,
Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley
Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson
Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan
Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan
Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA
LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis &
William David Maxwell, Hogan Lovells US LLP.
Blue Cross and Blue Shield of Georgia Inc, Defendant, represented
by Craig Alan Hoover, Hogan Lovells US LLP,
E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan
Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke,
Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP,
Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja,
Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley
Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson
Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan
Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan
Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA
LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis &
William David Maxwell, Hogan Lovells US LLP.
Community Insurance Company, doing business as Anthem Blue Cross
and Blue Shield, Defendant, represented by Craig Alan Hoover, Hogan
Lovells US LLP,
E. Desmond Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan
Lovells US LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke,
Hogan Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP,
Elizabeth C. Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja,
Hogan Lovells LLP, John Derrick Martin, Nelson Mullins Riley
Scarborough LLP, Julia Bright Hartley, Lucile Hartley Cohen, Nelson
Mullins Riley Scarborough LLP, Mary Sameera Van Houten, Hogan
Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US LLP, Nathan
Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan Lovells USA
LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki Iliadis &
William David Maxwell, Hogan Lovells US LLP.
Rocky Mountain Hospital and Medical Service, Inc., Blue Cross Blue
Shield of Michigan, Inc., Anthem Health Plans of New Hampshire,
Inc., RightChoice Managed Care, Inc., Blue Cross Blue Shield of
Wisconsin & Horizon Healthcare Services, Inc., Defendants,
represented by Craig Alan Hoover, Hogan Lovells US LLP, E. Desmond
Hogan, Hogan Lovells, Michael McDonald Maddigan, Hogan Lovells US
LLP, Peter R. Bisio, HOGAN LOVELLS US LLP, Adam Cooke, Hogan
Lovells US LLP, Chad R. Fuller, Troutman Sanders LLP, Elizabeth C.
Lockwood, Hogan Lovells US LLP, Jasmeet Kaur Ahuja, Hogan Lovells
LLP, John Derrick Martin, Nelson Mullins Riley Scarborough LLP,
Julia Bright Hartley, Lucile Hartley Cohen, Nelson Mullins Riley
Scarborough LLP, Mary Sameera Van Houten, Hogan Lovells US LLP,
Michelle A. Kisloff, Hogan Lovells US LLP, Nathan Garrett Foell,
Hogan Lovells, Robin J. Samuel, Hogan Lovells USA LLP, Travis A.
Bustamante, Nelson Mullins, Vassiliki Iliadis & William David
Maxwell, Hogan Lovells US LLP.
Anthem Insurance Companies, Inc., doing business as Anthem Blue
Cross and Blue Shield, Defendant, represented by Craig Alan Hoover,
Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells, Michael
McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio, HOGAN
LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R. Fuller,
Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells US LLP,
Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin, Nelson
Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile Hartley
Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera Van
Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan Lovells US
LLP, Nathan Garrett Foell, Hogan Lovells, Robin J. Samuel, Hogan
Lovells USA LLP, Travis A. Bustamante, Nelson Mullins, Vassiliki
Iliadis & William David Maxwell, Hogan Lovells US LLP.
Anthem Health Plans of Virginia, Defendant, represented by Craig
Alan Hoover, Hogan Lovells US LLP, E. Desmond Hogan, Hogan Lovells,
Michael McDonald Maddigan, Hogan Lovells US LLP, Peter R. Bisio,
HOGAN LOVELLS US LLP, Adam Cooke, Hogan Lovells US LLP, Chad R.
Fuller, Troutman Sanders LLP, Elizabeth C. Lockwood, Hogan Lovells
US LLP, Jasmeet Kaur Ahuja, Hogan Lovells LLP, John Derrick Martin,
Nelson Mullins Riley Scarborough LLP, Julia Bright Hartley, Lucile
Hartley Cohen, Nelson Mullins Riley Scarborough LLP, Mary Sameera
Van Houten, Hogan Lovells US LLP, Michelle A. Kisloff, Hogan
Lovells US LLP, Nathan Garrett Foell, Hogan Lovells, Robin J.
Samuel, Hogan Lovells USA LLP, Travis A. Bustamante, Nelson
Mullins, Vassiliki Iliadis & William David Maxwell, Hogan Lovells
US LLP.
MDL 2656: Court Grants Settlement Notice Program
------------------------------------------------
In the case, IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION.
This Document Relates To: ALL CASES, MDL Docket No. 2656, Misc. No.
15-1404 (CKK) (D. D.C.), Judge Colleen Kollar-Kotelly of the U.S.
District Court for the District of Columbia (i) granted the
Plaintiffs' Motions for Approval of Settlement Notice Program.
The Plaintiffs are purchasers of air passenger transportation for
domestic travel directly from the Defendants -- American Airlines,
Inc., Delta Air Lines, Inc., Southwest Airlines Co., and United
Airlines, Inc. -- or their predecessors and/or through websites
including Travelocity.com, Orbitz.com, Priceline.com, Expedia.com,
and Flyfar.ca. The Plaintiffs named in the Complaint include
individuals who are residents of various states and the District of
Columbia, a non-profit corporation, and a corporation.
The Plaintiffs define the putative class, with certain exceptions,
as all persons and entities that purchased air passenger
transportation services for flights within the United States and
its territories and the District of Columbia from Defendants or any
predecessor, subsidiary or affiliate thereof, at any time between
July 1, 2011 and the present.
The Plaintiffs assert that they do not know the exact number of
members in the putative class because that information is within
the Defendants' control, but they believe that the number of Class
Members is in the millions and that the Class Members are
sufficiently numerous and geographically dispersed throughout the
United States so that joinder of all Class Members is
impracticable.
The basis of the Plaintiffs' lawsuit is their allegation that the
Defendants colluded to limit capacity on their respective airlines
in a conspiracy to fix, raise, maintain, and/or stabilize prices
for air passenger transportation services within the United States,
its territories, and the District of Columbia in violation of
Sections 1 and 3 of the Sherman Antitrust Act, and that the
Plaintiffs suffered pecuniary injury by paying artificially
inflated ticket prices as a result of this purported antitrust
violation.
The Defendants filed a motion to dismiss the Plaintiffs'
Consolidated Amended Complaint, but that motion was denied by the
Court. The Court entered a subsequent Scheduling Order regarding
Discovery and Briefing on the Motion for Class Certification, and
appointed a Special Master to consider and rule upon discovery
disputes. That Scheduling Order was later amended, and discovery
is currently ongoing.
On Dec. 29, 2017, the Plaintiffs filed a Motion for Preliminary
Approval of Settlement with Southwest Airlines Co., and the Court
entered an Order Preliminarily Approving the Settlement with
Defendant Southwest. In that Jan. 3, 2018 Order, the Court
certified for settlement purposes the Settlement Class of alll
persons and entities that purchased air passenger transportation
services for flights within the United States and its territories
and the District of Columbia from the Defendants or any
predecessor, subsidiary or affiliate thereof, at any time between
July 1, 2011 and Dec. 20, 2017.
On June 15, 2018, the Plaintiffs filed a Motion for Preliminary
Approval of Settlement with Defendant American Airlines, Inc., and
the Court entered an Order preliminarily Approving the Settlement
with Defendant American. In that June 18, 2018 Order, the Court
certified a Settlement Class virtually identical to the
aforementioned Settlement Class, except that the dates run between
July 1, 2011 and June 14, 2018.
Pending before the Court are (i) the Plaintiffs' Motion for
Approval of Settlement Notice Program, pertaining to their proposed
settlement with Defendant Southwest Airlines Co. and the Memorandum
in support thereof; and (ii) the Plaintiffs' Motion for Approval of
Settlement Notice Program, pertaining to their proposed settlement
with Defendant American Airlines, Inc. and the Memorandum in
support thereof. Attached to both of the Plaintiffs' motions is a
Declaration by Shannon Wheatman, as well as a list of properties
and websites in online networks where banner ads will be posted;
the proposed E-mail Notice; the proposed Publication Notice; and
the proposed Long Form Notice.
Ms. Wheatman is the president of Kinsella Media, LLC, an
advertising and notification consulting firm in Washington, D.C.
specializing in the design and implementation of class action and
bankruptcy notification programs. The Plaintiffs' proposed Notice
Program envisions notification to the customers/prospective class
members through both e-mail addresses and publication, which
necessitates that the Non-Settling Defendants (and American)
provide the Plaintiffs with their customer e-mail addresses. The
Non-Settling Defendants have suggested that the Plaintiffs provide
notification by direct mail instead of e-mail.
In the their American Motion, the Plaintiffs acknowledge that the
Notice Program sought through the second motion is in substance the
same as that previously proposed in connection with the Southwest
Settlement and further, the notice forms submitted in connection
with the Southwest settlement have been revised to include
information concerning the American settlement.
The Court notes that the two motions submitted by the Plaintiffs
are significantly analogous as they discuss the same Notice Program
and same arguments in support thereof. Similarly, the Non-Settling
Defendants' Response to the American Motion reiterates that the
non-settling Defendants have not refused, and do not object to,
providing relevant customer e-mail addresses in their possession if
the Court decides that information is necessary to effectuate the
"best notice practicable" pursuant to Rule 23(c)(2)(B) and Rule
23(e)(1). The Non-Settling Defendants estimate however that it may
take "up to a month" to retrieve the e-mail addresses.
Accordingly, the issue to be resolved by the Court is a
determination of what constitutes the "best notice practicable"
under the circumstances of this particular multidistrict
litigation.
Taking into account that the majority of class members use the
Internet to book their flights, as well as the large size of the
class and the disproportionately higher cost of providing
notification by direct mail as opposed to e-mail, and considering
that the e-mail notification will be supplemented by publication
through print and media outlets and numerous websites, databases
and online services, Judge Kollar-Konelly finds that the notice
proposed in the Settlement Notice Program constitutes the "best
notice practicable" under the circumstances of the case.
Accordingly, she granted the Plaintiffs' motions for approval of
Settlement Notice Program and ordered the production of customer
e-mail addresses by the Non-Settling Defendants. A separate Order,
including a schedule for notice and final approval of the
Settlement, accompanies the Memorandum Opinion.
A full-text copy of the Court's April 22, 2018 Memorandum Opinion
is available at https://is.gd/2ECZBM from Leagle.com.
WILLIAM YOUMANS, Plaintiff, represented by Kit A. Pierson --
kpierson@cohenmilstein.com -- at COHEN MILSTEIN SELLERS & TOLL
PLLC
SHAWN JAIN, Plaintiff, represented by Gary Edward Mason, WHITFIELD
BRYSON & MASON LLP.
RACHEL GOLIAN, Plaintiff, represented by Ronald J. Aranoff -- at
BERNSTEIN LIEBHARD, LLP.
COLLEEN PANZINO, Plaintiff, represented by W. Scott Simmer -- at
SIMMER LAW GROUP PLLC.
CHRISTOPHER DEVIVO, Plaintiff, represented by Mark I. Labaton -- at
ISAACS FRIEDBERG & LABATON.
JACK SNIADO, JULIA L. HOLT, and JAY WINTON, Plaintiffs, represented
by Barbara J. Hart -- bhart@lowey.com -- at LOWEY DANNENBERG COHEN&
HART, pro hac vice.
LILIAN M. RAJI, Plaintiff, represented by Todd S. Garber --
tgarber@fbfglaw.com -- at FINKELSTEIN, BLANKINSHIP, FREI-PEARSON &
GARBER, LLP.
STEVEN HERSH and CURTIS PALMER, Plaintiffs, represented by Linda P.
Nussbaum -- lnussbaum@nussbaumpc.com -- at NUSSBAUM LAW GROUP,
P.C.
ELIZABETH A. CUMMING, KENNETH A. NELSON, JONATHAN SHANKLE, BRADFORD
TOMLIN, and WHITNEY TOMLIN, Plaintiffs, represented by Warren T.
Burns -- wburns@burnscharest.com -- at BURNS CHAREST LLP MICHAEL
KROMAR, SHERI ROSALIA, CHRISTOPHER TURTZO, JOSH STAMPS,
RICHARD WARCHOL, and KAYLA REPAN, Plaintiffs, represented by
Patrick J. Coughlin -- patc@rgrdlaw.com -- at ROBBINS GELLER RUDMAN
& DOWD LLP.
STATE-BOSTON RETIREMENT SYSTEM, Plaintiff, represented by Jay L.
Himes -- jhimes@labaton.com -- at Labaton Sucharow LLP.
AMERICAN AIRLINES, INC., Defendant, represented by Benjamin
Bradshaw -- bbradshaw@omm.com -- Jeffrey Allen Nuxoll Kopczynski --
jkopczynski@omm.com -- Katrina M. Robson -- krobson@omm.com --
Richard G. Parker -- rparker@omm.com -- Robert A. Siegel --
rsiegel@omm.com -- Sloane Ackerman -- sackerman@omm.com -- at
O'MELVENY & MYERS LLP; Carolyn Hazard -- carolyn.hazard@dechert.com
-- Paul Thomas Denis -- paul.denis@dechert.com -- at DECHERT, LLP.
DELTA AIRLINES, INC, Defendant, represented by James Peter Denvir,
III -- jdenvir@bsfllp.com -- John F. Cove, Jr. -- Michael S.
Mitchell -- mmitchell@bsfllp.com -- Abby L. Dennis --
adennis@bsfllp.com -- William A. Isaacson -- wisaacson@bsfllp.com
-- at BOIES, SCHILLER & FLEXNER LLP.
SOUTHWEST AIRLINES CO., Defendant, represented by Alden Lewis
Atkins -- aatkins@velaw.com -- Craig D. Margolis --
cmargolis@velaw.com -- Matthew J. Jacobs -- mjacobs@velaw.com --
Michael L. Charlson -- mcharlson@velaw.com -- Mortimer H. Hartwell
-- mhartwell@velaw.com -- Vincent van Panhuys --
vvanpanhuys@velaw.com -- at VINSON & ELKINS LLP; William Parker
Sanders -- psanders@sgrlaw.com -- at SMITH, GAMBRELL & RUSSELL,
LLP.
UNITED CONTINENTAL HOLDINGS, INC. and UNITED AIRLINES, INC.,
Defendant, represented by Kent Alan Gardiner --
kgardiner@crowell.com -- at CROWELL & MORING LLP; Paul Laurence Yde
-- paul.yde@freshfields.com -- at FRESHFIELDS BRUCKHAUS DERINGER US
LLP.
FREDERICK ISAACSON, Defendant, represented by W. Scott Simmer -- at
SIMMER LAW GROUP PLLC.
AMERICAN AIRLINES GROUP, INC., Defendant, represented by Katrina M.
Robson -- krobson@omm.com -- at O'MELVENY & MYERS LLP, pro hac
vice.
MEDICREDIT INC: Austin Sues Over Illegal Collection Calls
---------------------------------------------------------
Anita Austin, individually and on behalf of all others similarly
situated, Plaintiff, v. Medicredit, Inc., Defendant, Case No.
18-cv- 81221, (S.D. Fla., 2018), seeks statutory damages,
injunctive relief as well as reasonable attorney's fees pursuant to
the Telephone Consumer Protection Act.
Medicredit called Austin's cellular telephone in an attempt to
collect an alleged debt using an automatic telephone dialing system
and a prerecorded message, notes the complaint. [BN]
The Plaintiff is represented by:
Scott A. Bursor, Esq.
Joshua D. Arisohn, Esq.
Andrew Obergfell, Esq.
BURSOR & FISHER, P.A.
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-Mail: scott@bursor.com
jarisohn@bursor.com
aobergfell@bursor.com
MERCED, CA: Firefighters File Suit Over Unpaid Wages, Seek Damages
------------------------------------------------------------------
Chad Englert, Richard Ramirez, Matthew Van Hagen, Ryan Paskin, And
Casey Wilson on behalf of themselves and all similarly situated
individuals, Plaintiffs, v. City of Merced, Defendant, Case No.
18-cv-00666 (E.D. Cal., September 12, 2018), seeks to recover
unpaid overtime and other compensation, interest thereon,
liquidated damages, costs of suit and reasonable attorney fees
pursuant to the provisions of the Fair Labor Standards Act.
Merced is a political subdivision of the State of California.
Plaintiffs are firefighters employed by the City. They are not
entitled to paid idle holidays, yet are required to work their
regularly assigned schedule regardless of holidays and are not
allowed to use this holiday in lieu compensation as leave.
The complaint says the City excluded Plaintiffs' holiday in lieu
pay from their respective regular rate used to calculate their
overtime. [BN]
Plaintiff are represented by:
David E. Mastagni, Esq.
Isaac S. Stevens, Esq.
Ace T. Tate, Esq.
Ian B. Sangster, Esq.
MASTAGNI HOLSTEDT - A PROFESSIONAL CORPORATION
1912 "I" Street
Sacramento, CA 95811
Telephone: (916) 446-4692
Facsimile: (916) 447-4614
Email: davidm@mastagni.com
istevens@mastagni.com
atate@mastagni.com
isangster@mastagni.com
MICHIGAN: Court Certifies Class of Jewish Inmates
-------------------------------------------------
In the case, GERALD ACKERMAN and MARK SHAYKIN, Plaintiffs, v. HEIDI
WASHINGTON, Defendant, Civil Case No. 13-14137 (E.D. Mich.), Judge
Linda V. Parker of the U.S. District Court for the Eastern District
of Michigan, Southern Division, granted the Plaintiffs' motion for
class certification.
Michael Arnold filed the action against Michigan Department of
Corrections ("MDOC") Director Heidi Washington ("Defendant"),
claiming that Jewish inmates requiring a kosher diet are receiving
food not prepared or served in a kosher manner. Arnold alleged
that this conduct violates the putative class members' First
Amendment rights and their rights under the Religious Land Use and
Institutionalized Persons Act. He sought declaratory and
injunctive relief. After Arnold was paroled, the parties
stipulated to the substitution of Ackerman and Shaykin as the
Plaintiffs and the putative class representatives.
Presently before the Court is the Plaintiffs' motion for class
certification, filed Oct. 9, 2017. In the motion, the Plaintiffs
proposes the class defined as Jewish prisoners who are designated
to receive religious meals and have been served Vegan meals
prepared in a non-Kosher manner, including, but not limited to,
where the utensils used in the preparation of the Vegan meals are
not certified as being Kosher; where all the area where the Vegan
meals are prepared is not Kosher; and where all the equipment used
to clean the utensils is not Kosher are included within the class.
Per the parties' stipulation, the Defendant filed a response to the
motion on Dec. 1, 2017. The Plaintiffs filed a reply brief on Dec.
14, 2017.
Judge Parker concludes that Rule 23(a)'s four requirements for
class certification are satisfied and that the proposed class meets
the standard imposed by Rule 23(b)(2). For the reasons, she holds
that the Plaintiffs satisfy all of the prerequisites for class
certification under Rule 23(a) and (b)(2). Accordingly, she
granted their motion for class certification.
The Judge certified the class, with respect to the claims in the
Plaintiffs' First Amended Complaint, of all Jewish individuals
confined with the Michigan Department of Corrections who are
designated by the prison system to receive kosher meals.
She designated Ackerman and Shaykin as the representative
Plaintiffs for that certified class and, pursuant to Federal Rule
of Civil Procedure 23(g), Daniel E. Manville and Michael Steinberg
as the lead class counsel.
A full-text copy of the Court's Aug. 21, 2018 Opinion and Order is
available at https://is.gd/Su8eUG from Leagle.com.
Gerald Ackerman & Mark Shaykin, Plaintiffs, represented by Daniel
E. Manville -- daniel.manville@law.msu.edu -- Civil Rights Clinic &
Michael J. Steinberg, American Civil Liberties Union Fund of
Michigan.
Michael Martin, Special Activities Coordinator MDOC & Brad Purves,
Food Service Director MDOC, Defendants, represented by John L.
Thurber, MI Dept of Atty Gen Corrections Division.
Heidi Washington, Defendant, represented by Allan J. Soros,
Michigan Department of Attorney General Corrections Division & John
L. Thurber, MI Dept of Atty Gen Corrections Division.
MODA TRANS: Fails to Pay Overtime & Minimum Wages, Medina Says
--------------------------------------------------------------
CESAR FERNANDEZ MEDINA, individually, on behalf of all others
similarly situated, and as a representative of other aggrieved
employees, the Plaintiff, v. MODA TRANSPORTATION, LLC, a California
limited liability company; KEN HO, an individual; ALEXANDER HO, an
individual; and DOES 1 through 250, inclusive, the Defendant, Case
No. BC72l319 (Cal. Super. Ct., Sept. 17, 2018), seeks to recover
unpaid overtime and minimum wage under the California Labor Code.
According to the complaint, the Defendants failed to compensate the
Plaintiff and the Class members for all overtime hours worked in
excess of eight hours per day and/or 40 hours per week as required
by the Labor Code sections 510 and 1194 in one or more of the
following manners: by failing to pay for all hours worked; by
arbitrarily reducing the hours worked by the Plaintiff and Class
members even when more hours were worked; by falling to pay for
overtime hours at the proper overtime rate; through failure to
maintain proper records; and through other methods to be
discovered. As a result, the Plaintiff and Class members were also
not paid all wages for their work, including minimum wage, in
violation of, among other things, California Labor Code.[BN]
The Plaintiff is represented by:
Gary R. Carlin, Esq.
Brent S. Buchsbaum, Esq.
Laurel N. Haag, Esq.
Ian M. Silvers, Esq.
LAW OFFICES OF CARLIN & BUCHSBAUM LLP
555 East Ocean Boulevard, Suite 818
Long Beach, CA 90802
Telephone: (562) 432 8933
Facsimile: (562) 435 1656
E-mail: gary@carlinbuchsbaum.com
brent@carlinbuchsbaum.com
laurel@carlinbuchsbaum.com
ian@carlinbuchsbaum.com
MONDELEZ INT'L: Claims in 1st Amended McMorrow Suit Narrowed
------------------------------------------------------------
Judge Cynthia Bashant of the U.S. District Court for the Southern
District of California granted in part and denied in part the
Defendant's motion to dismiss the case, ATRICK McMORROW, MARCO
OHLIN, and MELODY DIGREGORIO, individually and on behalf of
themselves and all others similarly situated, Plaintiffs, v.
MONDELEZ INTERNATIONAL, INC., Defendant, Case No.
17-cv-02327-BAS-JLB (S.D. Cal.).
The named Plaintiffs bring the putative class action lawsuit
against the Defendant, alleging that the Defendant breached
warranties and violated other California and New York consumer
protection laws related to the Defendant's products. Their claims
arise from their purchases of the belVita branded breakfast
products. The Products include the following in various flavors:
belVita "Crunchy" Biscuits, belVita "Soft Baked" Biscuits, belVita
"Bites," and belVita "Sandwiches."
The Plaintiffs allege that they believed the advertisements
regarding the health and wellness qualities of the Products. They
claim that the Defendant's belVita branded breakfast products are
designed to appeal to health conscious consumers and that such
advertising is deceptive and misleading because these products
contain "high levels of added sugar," which they argue is
unhealthy.
On June 16, 2017, the Plaintiffs initiated the action and filed the
First Amended Complaint on Sept. 7, 2017. In the FAC, the
Plaintiffs assert claims for: (1) breach of implied warranty of
merchantability; (2) breach of express warranty; (3) violations of
the California's Unfair Competition Law, Business & Professions
Code Sections 17200, et seq., ("UCL"), the California False
Advertising Act Section 17500 ("FAL"), and California's Consumer
Legal Remedies Act ("CLRA"); and (4) violations of New York's
Unfair and Deceptive Business Acts Law and False Advertising Law.
The Plaintiffs seek to represent a multi-state class consisting of
all consumers who purchased the Products in California and New
York. They seek monetary and injunctive relief.
The Defendant now moves to dismiss the FAC. The Defendant argues
that the Plaintiffs lack standing to pursue all of their claims
because they did not individually purchase all of the Products at
issue. It seeks to dismiss all of the Plaintiffs' claims because
they are expressly preempted by federal law. The Defendant next
argues that the Plaintiffs have not plausibly alleged that the
Products contain "excessive" amounts of sugar because the amount of
sugar in the products is well below the recommended limits recently
set by the FDA. The Defendant also claims that the Plaintiffs fail
to allege that its labeling is likely to deceive a reasonable
consumer. Finally, it disputes that the Plaintiffs properly allege
their breach of warranty claims, and also states that the
Plaintiffs' claims fail for a lack of notice.
Judge Bashant granted in part and denied in part the Defendant's
motion to dismiss. Specifically, she granted without leave to
amend the motion to dismiss the Plaintiff's claims relying on the
following advertising statements: "a nutritious, convenient
breakfast choice that contains slow-release carbs from wholesome
grains to help fuel your body for 4 hours Power up People, Enjoy
belVita Breakfast Biscuits as part of a balanced breakfast with a
serving of low-fat dairy and fruit, specifically baked to release
energy regularly and continuously to fuel your body throughout the
morning, and satisfying morning energy to start your day off
right." She granted with leave to amend the motion to dismiss the
Plaintiffs' claims for breach of express and implied warranties;
and denied it as to the remaining advertising statements.
Among other things, the Judge finds that the mandated disclosure of
the amount of sugar on the front label and nutritional panel does
not diminish the legal impact of the Defendant's misleading
advertisements. Accordingly, she finds that the Plaintiffs
sufficiently plead that the statements relating to "steady energy"
are either false or misleading, and are likely to deceive a
reasonable consumer. She also does not find that the Plaintiffs'
claims based on the nutritious statements are non-actionable
puffery, but finds the Defendant's general advertising statements
are puffery.
Upon review of the FAC, the Judge finds that the Plaintiffs failed
to allege that they provided notice to the Defendant for either
their express or implied breach of warranty claims. Thus, she must
also dismiss their breach of warranty claims for failing to plead
that they provided proper notice for these claims.
Accordingly, the Plaintiffs may file a Second Amended Complaint
that only provides additional factual allegations relating to the
breach of express and implied warranty claims no later than Aug.
31, 2018. If they don't file a Second Amended Complaint, the
Defendant must answer the FAC no later than Sept. 14, 2018.
A full-text copy of the Court's Aug. 17, 2018 Order is available at
https://is.gd/7Y1TEH from Leagle.com.
Patrick McMorrow, on behalf of himself, all others similarly
situated and the general public & Marco Ohlin, on behalf of
himself, all others similarly situated and the general public,
Plaintiffs, represented by Jack Fitzgerald --
jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC, Paul K. Joseph -- paul@pauljosephlaw.com -- The Law Office of
Paul K. Joseph, PC, Melanie Rae Persinger --
melanie@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald
& Trevor Matthew Flynn -- trevor@jackfitzgeraldlaw.com -- Law
Office of Jack Fitzgerald, PC.
Melody DiGregorio, Plaintiff, represented by Paul K. Joseph, The
Law Office of Paul K. Joseph, PC.
Mondelez International, Inc., Defendant, represented by Kenneth
Kiyul Lee -- klee@jenner.com -- Jenner & Block, LLP & Alexander
Michael Smith -- asmith@jenner.com -- Jenner & Block.
MOVING RIGHT: Fails to Pay OT to Drivers, Angerosa Suit Claims
--------------------------------------------------------------
ROBERT ANGEROSA, individually and on behalf of all others similarly
situated, Plaintiff v. MOVING RIGHT ALONG SERVICE, INC.; and JIM
RUEDA, Defendants, Case No. 1:18-cv-04810-ILG-RML (E.D.N.Y., Aug.
23, 2018) seeks to recover from the Defendants unpaid overtime and
liquidated damages under the Fair and Labor Standards Act.
The Plaintiff Angerosa was employed by the Defendants as driver
from the year 1983 to March 2018.
Moving Right Along Service, Inc. is a corporation organized and
existing under the laws of the State of New York. [BN]
The Plaintiff is represented by:
Jeffrey R. Maguire, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
655 Third Avenue, Suite 1821
New York, NY 10017
Telephone: (212) 679-5000
Facsimile: (212) 679-5005
MYHERITAGE LTD: Hall Files Suit Over Data Breach
------------------------------------------------
Showneen Hall, on behalf of herself and other persons similarly
situated, Plaintiff, v. MyHeritage, Ltd., an Israeli corporation,
and MyHeritage (USA), Inc., a Delaware corporation, Defendants,
Case No. 18-cv-00721, (D. Utah, September 12, 2018), seeks damages
resulting from negligence, breach of implied and express contract,
invasion of privacy and for violation of the Utah Consumer Sales
Practices Act.
MyHeritage operates a genealogy platform and provide DNA kits.
Integral to their service is managing their clients' personal
information that is linked to their genealogy profile. On June 4,
2018, MyHeritage experienced a data breach, compromising their
customers' data.
Hall is a MyHeritage customer whose username and password
information was breached thereby exposing her Private Information.
[BN]
The Plaintiff is represented by:
Steven A. Christensen, Esq.
CHRISTENSEN YOUNG & ASSOCIATES, PLLC
9980 South 300 West, Ste 200
Sandy, UT 84070
Tel: 801-676-6447
Fax: 888-569-2786
Email: steven@christensenyounglaw.com
MYLAN NV: Bid to Nix 2nd Amended N.Y. Securities Suit Pending
-------------------------------------------------------------
Mylan N.V. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018, that the defendants' motion to dismiss the second
amended complaint in a federal securities litigation remains
pending.
Purported class action complaints were filed in October 2016
against Mylan N.V., Mylan Inc. and certain of their current and
former directors and officers in the United States District Court
for the Southern District of New York on behalf of certain
purchasers of securities of Mylan N.V. and/or Mylan Inc. on the
NASDAQ. The complaints alleged that defendants made false or
misleading statements and omissions of purportedly material fact,
in violation of federal securities laws, in connection with
disclosures relating to Mylan N.V. and Mylan Inc.'s classification
of their EpiPen(R) Auto-Injector as a non-innovator drug for
purposes of the MDRP. The complaints sought damages, as well as
the plaintiffs' fees and costs.
On March 20, 2017, after the actions were consolidated, a
consolidated amended complaint was filed, alleging substantially
similar claims and seeking substantially similar relief, but adding
allegations that defendants made false or misleading statements and
omissions of purportedly material fact in connection with allegedly
anticompetitive conduct with respect to EpiPen(R) Auto-Injector and
certain generic drugs, and alleging violations of both federal
securities laws (on behalf of a purported class of certain
purchasers of securities of Mylan N.V. and/or Mylan Inc. on the
NASDAQ) and Israeli securities laws (on behalf of a purported class
of certain purchasers of securities of Mylan N.V. on the Tel Aviv
Stock Exchange).
On March 28, 2018, defendants' motion to dismiss the consolidated
amended complaint was granted in part (including the dismissal of
claims arising under Israeli securities laws) and denied in part.
On July 6, 2018, the Plaintiffs filed a second amended complaint,
including certain current and former directors and officers and
additional allegations in connection with purportedly
anticompetitive conduct with respect to EpiPen(R) Auto-Injector and
certain generic drugs.
On August 6, 2018, defendants filed a motion to dismiss the second
amended complaint, which is currently pending.
The Company said, "We believe that the claims in this lawsuit are
without merit and intend to defend against them vigorously."
Mylan is a global pharmaceutical company, which develops, licenses,
manufactures, markets and distributes generic, brand name and
over-the-counter products in a variety of dosage forms and
therapeutic categories.
MYLAN NV: EpiPen(R) Auto-Injector Civil Litigation Still Pending
----------------------------------------------------------------
Mylan N.V.'s wholly owned subsidiary Mylan Specialty L.P. and other
affiliated entities continue to defend against the EpiPen(R)
Auto-Injector Civil Litigation, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2018. A trial date has been
scheduled for July 2020.
No further updates were provided in the Company's SEC report.
Mylan Specialty and other Mylan-affiliated entities have been named
as defendants in fifteen putative class actions relating to the
pricing and/or marketing of the EpiPen(R) Auto-Injector. The
plaintiffs in these cases assert violations of various federal and
state antitrust and consumer protection laws, the Racketeer
Influenced and Corrupt Organizations Act, as well as common law
claims. Plaintiffs' claims include purported challenges to the
prices charged for the EpiPen(R) Auto-Injector and/or the marketing
of the product in packages containing two auto-injectors, as well
as allegedly anti-competitive conduct. A Mylan officer and other
non-Mylan affiliated companies were also named as defendants in
some of the class actions.
These lawsuits were filed in the various federal and state courts
and have either been dismissed or transferred into a multidistrict
litigation ("MDL") in the U.S. District Court for the District of
Kansas and have been consolidated. Mylan filed a motion to dismiss
the consolidated amended complaint, which is currently pending.
The Company said, "We believe that the claims in these lawsuits are
without merit and intend to defend against them vigorously."
Mylan is a global pharmaceutical company, which develops, licenses,
manufactures, markets and distributes generic, brand name and
over-the-counter products in a variety of dosage forms and
therapeutic categories.
MYLAN NV: IEC Fund Action in Tel Aviv District Court Still Stayed
-----------------------------------------------------------------
Mylan N.V. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018, that the so-called IEC Fund securities litigation in
Israel remains stayed until a judgment is issued in a separate
securities litigation pending in the United States.
On October 13, 2016, a purported shareholder of Mylan N.V. filed a
lawsuit, together with a motion to certify the lawsuit as a class
action on behalf of certain Mylan N.V. shareholders on the Tel Aviv
Stock Exchange, against Mylan N.V. and four of its directors and
officers ("defendants") in the Tel Aviv District Court (Economic
Division) (the "Friedman Action").
The plaintiff alleges that the defendants made false or misleading
statements and omissions of purportedly material fact in Mylan
N.V.'s reports to the Tel Aviv Stock Exchange regarding Mylan
N.V.'s classification of its EpiPen(R) Auto-Injector for purposes
of the MDRP, in violation of both U.S. and Israeli securities laws,
the Israeli Companies Law and the Israeli Torts Ordinance. The
plaintiff seeks damages, among other remedies.
On January 19, 2017, the Court stayed the Friedman Action until a
final judgment is issued in the securities litigation currently
pending in the United States District Court for the Southern
District of New York.
On April 30, 2017, another purported shareholder of Mylan N.V.
filed a separate lawsuit, together with a motion to certify the
lawsuit as a class action on behalf of certain Mylan N.V.
shareholders on the Tel Aviv Stock Exchange, in the Tel Aviv
District Court (Economic Division), alleging substantially similar
claims and seeking substantially similar relief against the
defendants and other directors and officers of Mylan N.V., but
alleging also that this group of defendants made false or
misleading statements and omissions of purportedly material fact in
connection with allegedly anticompetitive conduct with respect to
EpiPen(R) Auto-Injector and certain generic drugs, and alleging
violations of both U.S. federal securities laws and Israeli law
(the "IEC Fund Action").
On April 10, 2018, the Tel Aviv District Court granted the motion
filed by plaintiffs in both the Friedman Action and the IEC Fund
Action, voluntarily dismissing the Friedman Action and staying the
IEC Fund Action until a judgment is issued in the securities
litigation pending in the United States.
The Company said, "We believe that the claims in these lawsuits are
without merit and intend to defend against them vigorously."
Mylan is a global pharmaceutical company, which develops, licenses,
manufactures, markets and distributes generic, brand name and
over-the-counter products in a variety of dosage forms and
therapeutic categories.
MYLAN NV: Still Faces Antitrust Lawsuits over Various Products
--------------------------------------------------------------
Mylan N.V. still defends itself against civil lawsuits over
antitrust matters related to various products, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
The Company, along with other manufacturers, has been named as a
defendant in putative class action lawsuits filed in 2016 and 2017
generally alleging anticompetitive conduct with respect to
doxycycline hyclate (regular and delayed release), digoxin,
divalproex, levothyroxine, propranolol, clomipramine, albuterol,
benazepril and amitriptyline products (as well as a number of
non-Mylan products). The lawsuits have been filed by putative
classes of direct purchasers, indirect purchasers and indirect
resellers and allege harm under federal and state antitrust laws,
state consumer protection laws and unjust enrichment.
These lawsuits have been consolidated in an MDL proceeding in the
U.S. District Court for the Eastern District of Pennsylvania
("EDPA"). The Court has sequenced these lawsuits into three
separate product groups. Defendants' filed motions to dismiss
complaints in the first product group and decisions are pending.
On January 22, 2018, three direct purchaser retailers filed a
complaint against Mylan and other manufacturers asserting similar
allegations with respect to the products, as well as doxycycline
monohydrate, glipizide-metformin, and verapamil (as well as other
non-Mylan products).
Subsequently, putative classes of direct purchasers, indirect
purchasers, and indirect resellers filed complaints against Mylan
and other manufacturers alleging harm under federal and state
antitrust laws, state consumer protection laws and unjust
enrichment and asserting similar allegations with respect to a
number of products, including Mylan's doxycycline products,
glipizide-metformin, and verapamil (as well as other non-Mylan
products). These complaints also name Mylan's President as a
defendant and include allegations against him with respect to
doxycycline hyclate delayed release.
On June 27, 2018, a healthcare facility filed a putative class
action complaint against Mylan and other defendants alleging
anticompetitive conduct with respect to albuterol products.
On August 3, 2018 a complaint was filed by a plaintiff claiming to
be a direct and indirect purchaser against Mylan and other
defendants alleging anti-competitive conduct with respect to
certain of the products identified above as well as pravastatin.
Mylan said, "The Company believes that the claims in these lawsuits
are without merit and intends to defend against them vigorously."
Mylan is a global pharmaceutical company, which develops, licenses,
manufactures, markets and distributes generic, brand name and
over-the-counter products in a variety of dosage forms and
therapeutic categories.
NAKATO SC: Court Conditionally Certifies Class in Pointer Suit
--------------------------------------------------------------
In the case, EVANGELINE POINTER, on behalf of herself and all
others similarly situated, Plaintiff, v. NAKATO SC, INC. d/b/a
NAKATO JAPANESE STEAKHOUSE and JOHN DOES 1-10, et al., Defendants,
C/A No. 4:18-cv-01629-RBH (D. S.C.), Judge R. Bryan Harwell of the
U.S. District Court for the District of South Carolina, Florence
Division, granted the Plaintiffs' Motion for Conditional Collective
Action Certification and to Authorize Notice to Putative Collective
Action Members.
The Judge onditionally certifies the matter as a collective action
for actual damages, liquidated damages, and attorneys' fees and
costs under 29 U.S.C. Section 216(b). The classs is defined as all
current and former employees of Nakato who were paid a direct, or
hourly, rate less than the statutory minimum wage of $7.25 per hour
and were required to tip-out, or remit tips, into the mandatory tip
pool. The Putative Class include all employees who made less than
$7.25 and contributed money to the Tip Pool and were employed
within three years of the Notice being sent.
He approved the Notice and Consent. The mailing envelope will have
a return address as follows: Nakato Class Action Lawsuit Important
Notice of Your Legal Rights PLEASE OPEN & READ P.O. Box 26170 Santa
Ana, CA 92799. Enclosed with the Notice is a self-addressed,
postage-paid envelope using the name and mailing address of the
Plaintiffs' counsel for both the address and return address.
The Email Notice is approved as appropriate for sending notice to
Putative Members via email. The subject line of the email will
read: Nakato Class Action Lawsuit — Please Read. The Text
Message Notice Via Cell Phone is approved as well as appropriate
for sending notice to Putative Members via text message.
Judge Harwell gave the Putative Members 30 days from the date of
the Notice to return their Consent form. The Parties will use the
services of Third Party Administrator, Simpluris, Inc. ("TPA"), to
handle distribution of the various notices. The Plaintiffs will
pay all fees and costs of the TPA.
Within five calendar days of the entry of the Order, the Defendant
will provide to the TPA, for all Putative Members, the following
information: (i) full names and identify if the individual is a
current employee; (ii) dates of employment; (iii) all known mailing
addresses on file, including, but not limited to, addresses on
payroll records, W-2, in employee file, and on application or
resume; (iv) all known email addresses, including, but not limited
to, those found in the employee file, on an application or resume,
or any other method by which Defendants stored email addresses; and
(v) all known telephone numbers, including, but not limited to,
employee file, on application or resume, W-4; or any other method
by which the Defendants stored phone numbers.
The TPA will not provide the Plaintiffs' counsel with the names,
mailing addresses, email addresses, or cell phone numbers of the
Putative Members; however, the TPA shall, within seven days of
receiving this information from the Defendant, provide the
Plaintiffs' counsel with the following information: (a) the number
of Putative Members; (b) the number of mailing addresses; (c) the
number of email addresses; and (d) the number of cell phone
numbers.
As soon as business will allow, but before the TPA's deadline for
distributing Notice as set forth, the Judge directed the TPA to
mail the counsel for Plaintiffs and the counsel for the Defendant
an example of both envelopes -- the one containing the Notice and
the return envelope, along with copies of ECF 17-1; ECF 17-2; ECF
17-3. Within one business day of receipt of these envelopes and
ECF 17-1; ECF 17-2; ECF 17-3; the counsel for the Parties will
advise the TPA, as well as their opposing counsel, if the envelopes
and Notices are correct or what revisions are needed.
The TPA shall, within three calendar days of receipt of the
information from the Defendant as set forth: (a) perform a skip
trace to determine all Putative Members' up-to-date mailing
address; (b) insert appropriate dates in the Notices where
appropriate; (c) mail, via first class U.S. mail, a copy of ECF
17-1 to the best possible address, as determined by the TPA; (d)
email, to all Putative Members with an email address, a copy of ECF
17-2 with ECF 17-1 attached; and (e) Send the Text Message Via Cell
Phone (ECF 17-3) to the cell phone number(s) for that Putative
Member.
If the TPA receives any completed Consents, the TPA shall, within
24 hours of receiving the Consent, email a copy to the counsel for
the Plaintiffs to be filed with the Court. The TPA will also,
within five calendar days, mail the original consent to the counsel
for Plaintiffs.
A full-text copy of the Court's Aug. 21, 2018 Order is available at
https://is.gd/8rd0rj from Leagle.com.
Evangeline Pointer, on behalf of herself and all others similarly
situated, Plaintiff, represented by Bruce E. Miller, Bruce E Miller
Law Office.
Nakato SC Inc, doing business as & John Does 1-10, Defendants,
represented by Benjamin A. Baroody -- BBaroody@Bellamylaw.com --
Bellamy Rutenburg Copeland Epps Gravely and Bowers & Holly Michelle
Lusk -- HLusk@BellamyLaw.com -- Bellamy Rutenburg Copeland Epps
Gravely and Bowers.
NATUS MEDICAL: Costabile Suit Underway in N.D. California
---------------------------------------------------------
Natus Medical Incorporated said in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2018, that a decision on the plaintiffs' amended
complaint in Costabile v. Natus Medical Incorporation, et al., No.
17-cv-00458-JSW is "expected later this year."
In January 2017, a putative class action lawsuit (Badger v. Natus
Medical Incorporation, et al., No. 17-cv-00458-JSW) alleging
violations of federal securities laws was filed in the United
States District Court for the Northern District of California,
naming as defendants the Company and certain officers and a
director. In July 2017, plaintiffs filed an amended complaint with
a new lead plaintiff (Costabile v. Natus Medical Incorporation, et
al., No. 17-cv-00458-JSW) alleging violations of federal securities
laws based on allegedly false and misleading statements.
The defendants moved to dismiss the Amended Complaint, and in
February 2018 the motion to dismiss was granted with leave to
amend. The plaintiffs re-filed an amended complaint in April 2018
and Natus responded in May 2018.
The Company said, "A decision is expected later this year. The
Company continues to believe that the plaintiffs' allegations are
without merit, and intends to vigorously defend against the
claims."
Natus is a provider of newborn care, neurology, and hearing and
balance assessment healthcare products and services used for the
screening, diagnosis, detection, treatment, monitoring and tracking
of common medical ailments in newborn care, hearing impairment,
neurological dysfunction, epilepsy, sleep disorders, neuromuscular
diseases and balance and mobility disorders. The company is based
in Pleasanton, California.
NEXSTAR MEDIA: Antitrust Class Suit on Advertising Sales Underway
-----------------------------------------------------------------
Nexstar Media Group, Inc. is facing an antitrust class action
complaint related to alleged unlawful coordination among
advertising sales teams, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the For
the quarterly period ended June 30, 2018.
On July 30, 2018, Clay, Massey & Associates, PC filed an antitrust
class action complaint in the U.S. District Court for the Northern
District of Illinois on behalf of itself and all others similarly
situated against Gray Television, Inc., Hearst Communications,
Nexstar Media Group, Inc., Tegna Inc., Tribune Media Company and
Sinclair Broadcast Group, Inc. The lawsuit alleges unlawful
coordination between advertising sales teams of independent local
television station owners to artificially inflate prices of local
TV advertisements in violation of Section 1 of the Sherman Act (15
U.S.C. Sec. 1). The Company denies the allegations against it and
will defend its advertising practices as necessary.
Nexstar Media Group, Inc. operates as a television broadcasting and
digital media company in the United States. It focuses on the
acquisition, development, and operation of television stations and
interactive community Websites in medium-sized markets. The
Company was formerly known as Nexstar Broadcasting Group, Inc. and
changed its name to Nexstar Media Group, Inc. in January 2017.
Nexstar Media Group, Inc. was founded in 1996 and is headquartered
in Irving, Texas.
NICOR ENERGY: Pyles Suit Moved to Indiana Southern District
-----------------------------------------------------------
The class action lawsuit titled DONALD PYLES, SUSAN SCHROEDER, on
behalf of themselves and all others similarly situated, the
Plaintiffs, v. NICOR ENERGY SERVICES COMPANY, the Defendant, Case
No. 3:18-cv-00152, was transferred from the U.S. District Court for
Southern District Ohio, to the U.S. District Court for the Southern
District of Indiana (Indianapolis) on Sept. 17, 2018. The Indiana
Southern District Court Clerk assigned Case No.
1:18-cv-02840-TWP-MJD to the proceeding. The case is assigned to
the Hon. Judge Tanya Walton Pratt.
Nicor Energy, doing business as Nicor National, offers home
warranty, energy efficiency, and energy management plans.[BN]
Attorneys for Plaintiffs
Alyson Steele Beridon, Esq.
Anthony Orlandi, Esq.
J. Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
3142 Losantiville Ave. STE A
Cincinnati, OH 45213
Telephone: (513) 300 8216
E-mail: gerards@bsjfirm.com
- and -
Lynn A. Toops, Esq.
COHEN & MALAD LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636 6481
Facsimile: (317) 636 2593
E-mail: ltoops@cohenandmalad.com
Attorneys for NICOR ENERGY SERVICES COMPANY:
Danielle D. Chattin, Esq.
David L. Balser, Esq.
Zachary A. McEntyre, Esq.
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309-3521
Telephone: (404) 572 3546
Facsimile: (404) 572 5100
E-mail: dbalser@kslaw.com
zmcentyre@kslaw.com
- and -
Scott Allen King, Esq.
Thompson Hine LLP
10050 Innovation Drive. Suite 400
Miamisburg, OH 45342
Telephone: (937) 443 6560
Facsimile: (937) 443 6635
NISSAN NORTH: Gann Files Fraud Class Suit in M.D. Tennessee
-----------------------------------------------------------
A class action lawsuit has been filed against Nissan North America,
Inc. The case is styled as Chistopher Gann individually and on
behalf of all others similarly situated, Plaintiff v. Nissan North
America, Inc. a California corporation, Defendant, Case No.
3:18-cv-00966 (M.D. Tenn., Sept. 25, 2018).
The nature of suit is stated as Other Fraud.
Nissan North America, Inc. designs, develops, manufactures, and
markets Nissan and Infiniti vehicles in the United States, Canada,
and Mexico. It offers various cars, such as sedans, electric cars,
sports cars, crossovers and SUVs, minivans and vans, trucks and
commercial vehicles, and various accessories.[BN]
The Plaintiff is represented by:
Anthony Parkhill, Esq.
Barnow and Associates, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Phone: (312) 621-2000
Fax: (312) 641-5504
- and -
Ben Barnow, Esq.
Barnow and Associates, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Phone: (312) 621-2000
Fax: (312) 641-5504
Email: b.barnow@barnowlaw.com
- and -
Erich P. Schork, Esq.
Barnow and Associates, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Phone: (312) 621-2000
Fax: (312) 641-5504
Email: e.schork@barnowlaw.com
- and -
Jeffrey D. Blake, Esq.
Barnow and Associates, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Phone: (312) 621-2000
Fax: (312) 641-5504
Email: j.blake@barnowlaw.com
- and –
Kevin H. Sharp, Esq.
Sanford Heisler Sharp, LLP
611 Commerce Street, Suite 3100
Nashville, TN 37203
Phone: (615) 434-7001
Fax: (615) 434-7020
Email: ksharp@sanfordheisler.com
- and –
Thomas J. O'Reardon, Esq.
Blood Hurst & O'Reardon, LLP
701 B Street, Suite 1700
San Diego, CA 92101
Phone: (619) 338-1100
Fax: (619) 338-1101
Email: toreardon@bholaw.com
- and -
Timothy G. Blood, Esq.
Blood Hurst & O'Reardon, LLP
701 B Street, Suite 1700
San Diego, CA 92101
Phone: (619) 338-1100
Fax: (619) 338-1101
Email: tblood@bholaw.com
NOBLE HOUSE: Partly Compelled to Reply to Holt Discovery Requests
-----------------------------------------------------------------
In the case, KATHLEEN HOLT, individually and on behalf of all
others similarly situated Plaintiff, v. NOBLE HOUSE HOTELS &
RESORT, LTD. dba NOBLE HOUSE HOTELS & RESORT, LTD., LP AND DOES
1-25 inclusive, Defendant, Case No. 17CV2246-MMA (BLM) (S.D. Cal.),
Magistrate Judge Barbara L. Major of the U.S. District Court for
the Southern District of California granted in part the Plaintiff's
July 18, 2018 Motion to Compel Discovery Responses From Defendant.
The instant class action was removed to the Court on Nov. 3, 2017
and brings claims for violations of California Business &
Professions Code Sections 17200 and 1750, and California Civil Code
Section 1750. The Plaintiff filed an amended complaint on April
30, 2018 alleging the same causes of action.
Specifically, the Plaintiff alleges that the Defendant engages in
deceptive and misleading billing practices at its restaurants that
cause consumers to suffer monetary damages and competitors to
suffer a competitive disadvantage. The source of this allegedly
deceptive behavior is a 3.5% surcharge that the Defendant adds to
consumers' final bills. The Plaintiff alleges that the surcharge
is a non-earned percentage added to the consumers' final bills,
which is actually a false, deceptive, and misleading charge that
misleads the public about the actual prices of the Defendant's food
and drinks.
Currently before the Court is the Plaintiff's July 18, 2018 Motion
to Compel Discovery Responses From Defendant, the Defendant's July
25, 2018 opposition to the motion, and the Plaintiff's Aug. 1, 2018
reply.
The Plaintiff seeks to compel additional responses to Requests for
Production of Documents ("RFPs") Nos. 10, 11, and 15 and
Interrogatories ("Rogs") No. 7 and 8 concerning the Defendant's
profitability. The RFPs and Rogs are as follows:
a. Requests for Production of Documents 10, 11, and 15:
10. Produce Defendant's profits/loss statements for each
restaurant location in California, or an aggregate of all
California restaurant locations for 2016.
11. Produce Defendant's profit/loss statements for each
restaurant location in California, or an aggregate of all
California restaurant locations for 2017.
15. Produce Defendant's income/expense report, or other
similar financial document, which shows how YOU spend the money YOU
received from the SURCHARGE.
b. Interrogatories 7 and 8:
7. State the total amount of revenue received by the
Defendant for 2016.
8. State the total amount of recent received by the
Defendant for 2017.
The Plaintiff argues that the requests are highly relevant to her
Unfair Competition Law ("UCL") claims because they demonstrate
whether the surcharges went to the restaurant or the employees and
because courts weigh the utility of a defendant's conduct when
determining if a surcharge is fair under the UCL. She also argues
that she has no way of knowing what the Defendant does with profits
from the surcharge or how the profits impact its revenue without
the requested discovery.
The Defendant contends that its sole basis for objecting to the
requests is relevance in the context of Fed. R. Civ. P. 26(b)(1)'s
proportionality principles. It notes that the Plaintiff ignores
the 2015 amendments of the Federal Rules of Civil Procedure and
misstates Fed. R. Civ. P. 26. Id. at 8. The Defendant also
contends that the financial requests do not bear on whether the
surcharge was adequately disclosed which is the legal issue
underlying the case and that the the costs and exposure of
producing sensitive financial details [are not] proportional to the
value to the Plaintiff or important to the resolution of the issues
actually in the case.
Judhe Major finds that finds that the requests seek irrelevant
information. Initially, the Plaintiff has not established how the
Defendant's "profits/loss statements" or "total revenue" are
relevant to the claims at issue in the case. Moreover, she has not
established that there is a dispute regarding whether the surcharge
was actually charged to every customer and the Defendant has
provided the Plaintiff with the total amount of surcharge related
revenue the Defendant has collected. Secondly, the Judge finds
that the Plaintiff has not established the relevance of how the
Defendant spends the money it received from the surcharge. How
Defendant spent the collected surcharge is not relevant to the
claims at issue in the litigation. Finally, the Judge finds that
the discovery requests for "profits/loss statements" or "total
revenue" are not relevant to the utility issue of the UCL claim.
To the extent that the requests do have some minimal relevance, the
actual requests are overbroad and seek a significant amount of
irrelevant and confidential information. Accordingly, she denied
the Plaintiff's motion to compel further response to RFPs 10, 11,
and 15 and Rogs 7 and 8.
The Plaintiff seeks to compel additional responses to Rogs 13 and
14 and Requests for Admission ("RFAs") Nos. 2 and 8. The Rogs and
RFAs are as follows:
a. Interrogatories 13 and 14:
13. Identify the average TIP percentage go all servers
and bartenders employed by the Defendant, for the four years prior
to implementation of the surchardge. (Note: each bartender and
server need not be identified individually, but rather the average
of all bartenders and servers is what is sought by the Plaintiff.)
14. Identify the average TIP percentage of all servers
and bartenders employed by the Defendant, since it began using the
surcharge. (Note: each bartender and server need not be identified
individually, but rather the average of all bartenders and servers
is what is sought by the Plaintiff.)
b. Requests for Admission 2 and 8:
2. Admit that the money generated from the SURCHARGE goes
to Defendant and is not a TIP for the servers, bartenders, or
kitchen staff.
8. Admit that YOU do not separate or segregate the money
obtained via SURCHARGE into a separate bank account from the moneys
collected for food prices.
The Plaintiff argues that the sought after discovery is relevant to
determining Defendant's utility of conduct under the UCL and
whether the Defendant's disclosure of the surcharge is misleading.
The Defendant contends that the requests are neither relevant nor
proportional to the case.
While discovery may not always be limited to the issues raised by
the pleadings, Fed. R. Civ. P. 26(b)(1) demands that discovery be
relevant to a party's claim or defense and Judge Major does not
find that to be the case here with respect to the gratuity related
discovery. She finds that the Plaintiff's reason for seeking tip
percentages -- that they may show that the surcharge was not
properly disclosed and that consumers were misled into believing
the surcharge was a tip -- is speculative. There are a large
number of factors that could impact the tip percentage for
employees. Moreover, as noted by the Defendant, the Plaintiff does
not allege that she tipped her server or that she did not tip her
server because she believed that the 3.5% surcharge was a gratuity.
Accordingly, the Judge denied the Plaintiff's motion to compel a
response to interrogatories Nos. 13-14.
The Judge granted the Plaintiff's motion to compel a response to
RFA No. 2. How Defendant spent the surcharge is not relevant in
the litigation, but the fact of whether the surcharge goes to the
Defendant for its use or to servers, bartenders, or kitchen staff
as tips is relevant to the Plaintiff's claims and the Court
therefore orders the Defendant to respond to RFA No. 2. On the
other hand, she finds that whether or not the Defendant uses a
separate bank account for surcharge money is irrelevant.
Accordingly, she denied the Plaintiff's motion to compel a response
to RFA No. 8.
A full-text copy of the Court's April 24, 2018 Order is available
at https://is.gd/RAyFJE from Leagle.com.
Kathleen Holt, individually and on behalf of all others similarly
situated, Plaintiff, represented by Kevin Lemieux --
kevin@westcoastlitigation.com -- The Law Office of Kevin Lemieux,
APC, Yana A. Hart -- yana@westcoastlitigation.com -- Hyde &
Swigart, Abbas Kazerounian -- ak@kazlg.com -- Kazerounian Law
Group, APC, Clark Robert Conforti, Kazerouni Law Group APC, Joshua
B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart &
Robert Lyman Hyde -- bob@westcoastlitigation.com -- Hyde &
Swigart.
Noble House Hotels & Resort, LTD, doing business as Noble House
Hotels & Resort, LTD, LP, Defendant, represented by Darin Murl
Sands -- sandsd@lanepowell.com -- Lane Powell PC & Heidi Brooks
Bradley -- bradleyh@lanepowell.com -- Lane Powell PC.
NOREEN ROTHMAN: Stephen Lamont's Class Suit Stays in California
---------------------------------------------------------------
In the lawsuit captioned P. STEPHEN LAMONT, the Plaintiff, vs.
NOREEN T. ROTHMAN, et al., the Defendants, Case No.
4:18-cv-02997-SBA (N.D. Cal.), the Hon. Judge Saundra Brown
Armstrong entered an order dated Sept. 17, 2018, denying a motion
to change venue to the U.S. District Court for the Southern
District of New York.
The Court said, "On August 29, 2018, the Court issued an Order
Accepting Magistrate Judge's Report and Recommendation and
Dismissing Action, wherein the Court overruled Plaintiff's
objections to the R&R and dismissed the action without leave to
amend. The Court provided that the dismissal was without prejudice
to Plaintiff's ability to file the action in another court. The
action was thereafter closed. On September 16, 2018, Plaintiff
filed the instant Motion to Change Venue, wherein he asks the Court
to transfer venue to the Southern District of New York. The Court
has already dismissed all claims, however, and the Clerk has closed
the action. Additionally, Plaintiff has not shown that a transfer
to the Southern District of New York is proper or in the interest
of justice. Plaintiff's untimely motion to change venue is
therefore denied."[CC]
NOVAN INC: Bid to Dismiss Consolidated Securities Lawsuit Pending
-----------------------------------------------------------------
Novan, Inc.'s motion to dismiss the consolidated amended complaint
in a consolidated securities litigation is still pending, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2018.
The Company is subject to putative stockholder class action
lawsuits that were filed in November 2017 in the United States
District Court for the Middle District of North Carolina against
the Company and certain of its current and former directors and
officers, which have been consolidated under the case name In re
Novan, Inc. Securities Litigation. A lead plaintiff has been
designated, and on April 30, 2018, the lead plaintiff filed a
consolidated amended complaint.
The consolidated amended complaint asserts claims for violation of
Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b)
and 20(a) of the Exchange Act and SEC Rule 10b-5 promulgated
thereunder, in connection with statements related to the Company's
Phase 3 clinical trials of SB204. The consolidated amended
complaint seeks, among other things, an unspecified amount of
compensatory damages and attorneys' fees and costs on behalf of the
putative class.
On June 14, 2018, the Company filed a motion to dismiss the
consolidated amended complaint.
The Company said it believes that the claims lack merit and intends
to defend the lawsuits vigorously. However, there can be no
assurance that a favorable resolution will be obtained in such
lawsuits, and the actual costs may be significant. The Company is
unable to estimate the amount of a potential loss or range of
potential loss, if any.
Based in Morrisville, North Carolina, Novan, Inc., is a
clinical-stage biotechnology company focused on leveraging nitric
oxide's natural antiviral and immunomodulatory mechanisms of action
to treat dermatological and oncovirus-mediated diseases.
OMEGA HEALTHCARE: Still Defends Consolidated Class Action
---------------------------------------------------------
Omega Healthcare Investors, Inc. continues to defend itself against
a consolidated securities class action with Royce Setzer as the
lead plaintiff, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018.
On November 16, 2017, a purported securities class action complaint
captioned Dror Gronich v. Omega Healthcare Investors, Inc., C.
Taylor Pickett, Robert O. Stephenson, and Daniel J. Booth was filed
against the Company and certain of its officers in the United
States District Court for the Southern District of New York, Case
No. 1:17-cv-08983-NRB (the "Gronich Securities Class Action"). On
November 17, 2017, a second purported securities class action
complaint captioned Steve Klein v. Omega Healthcare Investors,
Inc., C. Taylor Pickett, Robert O. Stephenson, and Daniel J. Booth
was filed against the Company and the same officers in the United
States District Court for the Southern District of New York, Case
No. 1:17-cv-09024-NRB (together with the Gronich Class Action, the
"Securities Class Action"). Thereafter, the Court considered a
series of applications by various shareholders to be named lead
plaintiff, consolidated the two actions and designated Royce Setzer
as the lead plaintiff.
Pursuant to a Scheduling Order entered by the Court, lead plaintiff
Setzer and additional plaintiff Earl Holtzman filed a Consolidated
Amended Class Action Complaint on May 25, 2018 (the "Amended
Complaint"). The Securities Class Action purports to be a class
action brought on behalf of shareholders who acquired the Company's
securities between May 3, 2017 and October 31, 2017. The
Securities Class Action alleges that the defendants violated the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
by making materially false and/or misleading statements, and by
failing to disclose material adverse facts about the Company's
business, operations, and prospects, including the financial and
operating results of one of the Company's operators, the ability of
such operator to make timely rent payments, and the impairment of
certain of the Company's leases and the uncollectibility of certain
receivables. The Securities Class Action, which purports to assert
claims for violations of Section 10(b) of the Exchange Act and Rule
10b-5 promulgated thereunder, as well as Section 20(a) of the
Exchange Act, seeks an unspecified amount of monetary damages,
interest, fees and expenses of attorneys and experts, and other
relief. The Company and the officers named in the Amended
Complaint filed a Motion to Dismiss on July 17, 2018. Briefing on
the Motion to Dismiss was to be completed by September 14, 2018.
No further updates were provided in the Company's SEC report.
Omega Healthcare said "Although the Company denies the material
allegations of the Securities Class Action and intends to
vigorously pursue its defense, we are in the very early stages of
this litigation and are unable to predict the outcome of the case
or to estimate the amount of potential costs."
The Company's Board of Directors received a demand letter, dated
April 9, 2018, from an attorney for a purported current shareholder
of the Company relating to the subject matter covered by the
Securities Class Action (the "Shareholder Demand"). The letter
demanded that the Board of Directors conduct an investigation into
the statements and other matters at issue in the Securities Class
Action and commence legal proceedings against each party identified
as being responsible for the alleged activities. The Board of
Directors is reviewing the Shareholder Demand to determine the
appropriate course of action.
Omega Healthcare Investors, Inc. was formed as a real estate
investment trust and incorporated in the State of Maryland on March
31, 1992. Omega is structured as an umbrella partnership REIT
under which all of Omega's assets are owned directly or indirectly
by, and all of Omega's operations are conducted directly or
indirectly through its operating partnership subsidiary, OHI
Healthcare Properties Limited Partnership.
OPKO HEALTH: Kerznowski Hits Share Price Drop Over Pump-Dump Scheme
-------------------------------------------------------------------
Jason Kerznowski, individually and on behalf of all others
similarly situated, Plaintiff, v. OPKO Health, Inc., Phillip Frost,
Adam Logal and Juan F. Rodriguez, Defendants, Case No. 18-cv-13834
(D. N.J., September 12, 2018), seeks to recover compensable damages
caused by violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934.
OPKO, a healthcare company, engages in the diagnostics and
pharmaceuticals business in the United States and internationally.
Phillip Frost has been its Chief Executive Officer and Chairman
since March 2007.
According to the complaint, the Defendants failed to disclose that
Frost and OPKO were involved in orchestrating the acquisition of
large quantities of stock at steep discounts and after securing a
substantial ownership interest in them, engaged in illegal
promotional activity and manipulative trading to artificially boost
its stock price and to give the stock the appearance of active
trading volume and eventually dump their shares into the inflated
market, reaping millions of dollars at the expense of unsuspecting
investors.
On this news, shares of OPKO fell $1.01 or over 18%, before NASDAQ
halted the trading of OPKO on September 7, 2018 at $4.58. To date,
trading in OPKO remains halted, making the stock illiquid and
virtually worthless, notes the complaint. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
OREMOR OF GLENDALE: Underpays Salespersons, Valtierra Suit Claims
-----------------------------------------------------------------
HENRY VALTIERRA, individually and on behalf of all others similarly
situated, Plaintiff v. OREMOR OF GLENDALE LLC; EMPIRE NISSAN, INC.;
OREMOR AUTOMOTIVE GROUP; and DOES 1 through 50, inclusive, Case No.
BC719075 (Cal. Super., Los Angeles Cty., Aug. 23, 2018) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
The Plaintiff Valtierra was employed by the Defendants as
salesperson.
Oremor of Glendale LLC is a California limited liability company
conducting business in the State of California. The Company is
owned and operated by Oremor Automotive Group which operates as a
dealer for new and used cars, trucks, vans, and SUVs in the United
States. It also sells products online. Oremor Automotive was
founded in 1970 and is based in Ontario, California with locations
in Tustin, Glendale, Ontario, Fresno, and Woodland Hills. [BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
OREXIGEN THERAPEUTICS: Pepper Hamilton Attorney Discusses Ruling
----------------------------------------------------------------
Robert L. Hickok, Esq. -- hickokr@pepperlaw.com -- Jay A. Dubow,
Esq. -- dubowj@pepperlaw.com -- and Matthew D. Foster, Esq. --
fosterm@pepperlaw.com -- of Pepper Hamilton, in an article for
Law.com, wrote that on Aug. 13, a panel of the U.S. Court of
Appeals for the Ninth Circuit issued an opinion in a securities
fraud class action, Khoja v. Orexigen Therapeutics, No. 16-56069
2018 U.S. App. LEXIS 22371 (9th Cir. Aug. 13, 2018), which could
dampen a defendant's use of judicial notice and
incorporation-by-reference to aid in its motion to dismiss,
especially in the securities class action setting.
For private securities class actions under the Private Securities
Litigation Reform Act (PSLRA), the pleading standard is heightened,
see Tellabs v. Makor Issues & Rights, 551 U.S. 308, 313 (2007). The
PSLRA requires that plaintiffs "specify each statement alleged to
have been misleading, the reason or reasons why the statement is
misleading, and, if an allegation regarding the statement or
omission is made on information and belief, the complaint shall
state with particularity all facts on which that belief is formed."
Additionally, plaintiffs must "state with particularity facts
giving rise to a strong inference that the defendant acted
intentionally or recklessly," 15 U.S.C. Section 78u-4.
For a motion to dismiss, the court generally may not consider
material outside the complaint when assessing the sufficiency of
the complaint at the pleadings stage. Courts have routinely noted
two exceptions to this limitation -- judicial notice and
incorporation-by-reference.
In its decision, the Ninth Circuit affirmed in part and reversed in
part the district court's dismissal of a proposed securities fraud
class action. The panel held that a district court could take
judicial notice of matters of public record without converting a
motion to dismiss into a motion for summary judgment. However, the
panel admonished that a district court cannot take judicial notice
of disputed facts. The panel laid out the rules of the road for the
use of judicial notice and incorporation-by-reference in the Ninth
Circuit.
Use of Judicial Notice and Incorporation-By-Reference
Due to the heightened pleading standards of the PSLRA, plaintiffs'
securities class action complaints alleging misrepresentations or
omissions typically include countless paragraphs of excerpted
statements taken from transcripts of investor calls or filings with
the Securities and Exchange Commission. But rarely are those
documents actually attached to the complaint. For years, defendants
have supported their motions to dismiss by attaching these publicly
available documents in order provide the court with a more complete
picture than the alleged facts pleaded by plaintiffs. See e.g.,
Wolfe v. Aspenbio Pharma, 2012 WL 4040344 (D. Colo. Sept. 13,
2012); Carlucci v. Han, 2012 WL 3242618 (E.D. Va. Aug. 7, 2012); In
re XenoPort Securities Litigation, 2011 WL 6153134 (N.D. Cal. Dec.
12, 2011); In re MBIA Securities Litigation, 700 F. Supp. 2d 566
(S.D.N.Y. 2010).
Specifically, in Keeney v. Larkin, the court considered on a motion
to dismiss a number of documents, including securities analyst
reports, that were offered to show that the market was aware of the
exact information that plaintiffs alleged was not sufficiently
disclosed, 306 F. Supp. 2d 522, 532 (D. Md. 2003), aff'd, 102 Fed.
Appx. 787 (4th Cir. 2004). The plaintiffs alleged that defendants
issued press releases and other public statements which falsely
represented that the company had successfully integrated the
operations of its many acquired companies. The defendants offered
numerous public documents directly to the contrary in support of
their motion to dismiss. The court held that it could consider
documents not attached to the complaint if there were incorporated
by reference or otherwise integral to the complaint. In so doing,
the court held that the market was aware that the company may not
be integrated. The court stated that analyst reports are part of
the total mix of information available to the market and ultimately
granted defendants' motion to dismiss with prejudice.
These types of documents have typically been introduced at the
motion to dismiss phase by either an incorporation-by-reference
theory or by judicial notice. Incorporation-by-reference is a
judicially created doctrine that treats certain documents
referenced in the complaint as if those documents were part of the
complaint. This prevents plaintiffs from cherry-picking parts of
documents and allows defendants to provide the court with the full
picture or even with contrary facts. This permits a court to view
and use the documents during the motion to dismiss phase, without
converting the motion into one for summary judgment. Under Federal
Rule of Evidence 201, a court may take judicial notice of a fact
that is not subject to reasonable dispute because it: is generally
known within the trial court's territorial jurisdiction; or can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.
The District Court's Decision
In Khoja, plaintiffs are a putative class of investors in Orexigen
Therapeutics, Inc., a small biotechnology firm that develops
obesity drugs. The drug in question was in the middle of a clinical
study when the company, in the context of an SEC filing in March
2015 describing a patent application, improperly disclosed partial
results of that study showing a positive clinical effect. The day
before the revelation, the stock closed at $5.79 per share. After
the revelation, the stock actively traded, peaking at $9.37 per
share, and closing at $7.64 per share. Weeks later, in response to
the improper disclosure of the partial results, the study was
halted by the supervising committee. The halting of the study was
not initially made public by the company. In May, over a month
after the study was halted, the company filed a Form 8-K and its
quarterly Form 10-Q. The Form 8-K mentioned the study and the Form
10-Q warned that additional information may produce negative or
inconclusive results. However, neither document disclosed that the
study had already been halted. At the same time as the SEC filings,
the company hosted a conference call with securities analysts in
which it discussed the study, but did not disclose that it had been
halted. Four days later, the doctor in charge of the study issued a
statement warning that the disclosure of the results was premature
and the study had been halted.
A class action complaint was filed against the company and certain
executives in August 2015. The complaint referenced the company's
SEC filings, along with several partial quotes from the conference
call with securities analysts. The quotes referenced the study and
whether any changes to the results would be publicly available. The
complaint alleged three counts of securities fraud. Count I alleged
violations of Sections 10(b) of the Securities Exchange Act, 17
C.F.R. Section 240.10b-5, against the company and individually
named executives. Count II alleged a fraudulent scheme under
Section 10b-5(a) and (c). Count III was solely against the
individual defendants for control person liability under § 20(a)
of the Securities Exchange Act, 15 U.S.C. Section 78t.
The defendants moved to dismiss the complaint. In support of the
motion, the defendants simultaneously moved the court to take
judicial notice of or alternatively treat 22 documents as
incorporated-by-reference. The district court granted the motion
for all but one of the documents. Utilizing statements in the
documents, the district court granted the motion to dismiss and
ultimately dismissed the two claims under Count I with prejudice
and granted leave to amend the other counts. The plaintiffs then
requested that judgment be entered so they could pursue an
immediate appeal.
The Ninth Circuit Decision
The three-judge panel (Robert E. Payne, U.S. District Judge for the
Eastern District of Virginia sat by designation) stated that
generally district courts may not consider materials outside the
complaint when ruling on a motion to dismiss under Rule 12(b)(6).
The two exceptions are the incorporation-by-reference doctrine and
judicial notice. But the court noted "a concerning pattern in
securities cases like this one: exploiting these procedures
improperly to defeat what would otherwise constitute adequately
stated claims at the pleading stage."
The panel then discussed what it believes to be the proper use of
judicial notice and incorporation-by-reference. The panel warned
that a court may take judicial notice of facts "not subject to
reasonable dispute," but could not take judicial notice of disputed
facts. For instance, a district court can properly take judicial
notice of a transcript from an investor call, but the panel warned
that the district court must go further and "identify" which
particular facts it is noticing from the transcript. The panel
determined that the district court below abused its discretion by
failing to identify in its opinion which facts it judicially
noticed from the transcript.
The defendants sought to use the transcript to demonstrate that
investors were already told that another study would be used to
assess the drug's capabilities. This fact would be used to negate
plaintiffs' claim of misrepresentations regarding the halted study.
However, upon closer inspection of the transcript, the panel
determined it was "unclear" what exactly had been previously
disclosed to investors about the halted study. The panel found the
transcript open to varying interpretations and thus improper for
judicial notice and impermissible to refute plaintiffs'
allegations.
The panel then evaluated the district court's judicial notice of an
European agency report. Again, the panel recognized the propriety
of judicially noticing agency reports. However, the panel found
reasonable dispute as to what exactly the report established.
Therefore, the panel concluded that the district court abused its
discretion by taking judicial notice of the report and inferring
that its publication negated plaintiffs' scheme liability theory.
The panel then analyzed when it is proper for a district court to
permit a document to be noticed for incorporation-by-reference.
Incorporation-by-reference is generally used to incorporate a
document from which a plaintiff may have cherry picked favorable
facts and deliberately omitted portions of the document that weaken
or even negate the claims. According to the panel, the plaintiff
must "extensively" refer to the document. In the Ninth Circuit,
that means more than the mere mentioning of the document. The more
difficult analysis focuses on when the document itself "forms the
basis of the plaintiff's claim." The panel warned that, if the
document merely creates a defense to well-pleaded allegations, the
document does not form the basis of the complaint. The panel noted
that incorporation-by-reference was designed to prevent artful
pleading by plaintiffs but is not a tool for defendants to
short-circuit the resolution of a well pleaded claim.
From this context, the panel analyzed several different documents
the district court utilized to determine whether they were properly
incorporated-by-reference. The panel agreed with some of the
district court's rulings (blog post, analyst reports, Forbes
articles, Form S-8 Registration Statement, FDA agency report), and
disagreed with others (a different blog post, SEC Form 10-K, SEC
filing requesting executive compensation, agency press release, and
a patent file history). The court determined that these latter
documents were either not referenced at all, or not sufficiently
referenced to meet the standard for incorporation-by-reference.
Once the panel clarified the proper use for judicial notice and
incorporation-by-reference it then determined which rulings by the
district court were proper. The panel affirmed in part, and
reversed in part, the district court's dismissal of the complaint,
and remanded with instructions regarding the judicial notice and
incorporation-by-reference of defendants' exhibits to its motion to
dismiss. As to Counts I and II, the panel affirmed the district
court's dismissal, but permitted leave to amend. As to Count III,
the panel reversed and instructed the district court to reconsider
those claims in light of the panel's decision and in light of the
amendments to the complaint.
Implications
Post-PSLRA, motion to dismiss practice in securities litigation has
taken on a rhythm distinct from motion to dismiss practice in other
types of cases. In order to meet the heightened pleading
requirements of the PSLRA, the plaintiffs will typically quote
extensively, but often selectively, from a company's SEC filings,
analyst calls, and analyst reports. To counter-balance the
selectivity of the averments in the complaint, defendants in their
motion to dismiss have typically asked the court to take judicial
notice of or incorporate-by-reference information in publicly
available documents to provide context to or outright negate the
plaintiff's averments. This is consistent with the
fraud-on-the-market doctrine endorsed in Basic Inc. v. Levinson,
485 U.S. 224 (1988), which recognizes that publicly available
information is quickly reflected in the price of a security trading
in an efficient market. When a district court has a complete set of
publicly available information before it, it then has an
appropriate record on which to rule on the motion to dismiss.
While the court in Khoja pays lip service to a district court's
ability to use judicial notice and incorporation-by-reference to
supplement the record in deciding motions to dismiss in securities
class actions, the decision appears to reflect a greater hostility
to the use of these doctrines than had previously been the case.
The court went out of its way to state:
"The overuse and improper application of judicial notice and the
incorporation-by-reference doctrine, however, can lead to
unintended and harmful results. The defendants face an alluring
temptation to pile on numerous documents to their motions to
dismiss to undermine the complaint, and hopefully dismiss the case
at an early stage."
The same can be said about plaintiffs' "alluring temptation" to
selectively and misleadingly excerpt documents and transcripts in
the complaint in order to state a claim. The district courts are in
the best position to determine which documents should be the
subject of judicial notice or incorporation-by-reference in
deciding a securities class action motion to dismiss. Any decision
limiting the discretion of the district courts in this regard will
undermine the balance between plaintiffs' pleading practices and
defendants' motion to dismiss arguments that has heretofore existed
in securities litigation under the PSLRA.
It is yet to be seen whether other circuits will follow the rules
of the road the Ninth Circuit presented in Khoja v. Orexigen
Therapeutics. If they do, it will likely change the balance of
outcomes with respect to securities litigation motions to dismiss.
It will also be interesting to see if this case, or another
similarly decided, becomes the subject of U.S. Supreme Court
review. The Supreme Court in recent years has often disagreed with
the decisions of the Ninth Circuit.
Robert L. Hickok is a partner in the trial and dispute resolution
practice group of Pepper Hamilton. Contact him at 215-981-4583 or
hickokr@pepperlaw.com.
Jay A. Dubow is a partner in the white collar litigation and
investigations practice group and is co-chair of the securities and
financial services enforcement group. Contact him at 215-981-4713
or dubowj@pepperlaw.com.
Matthew D. Foster is a senior attorney in the trial and dispute
resolution practice group of Pepper Hamilton. Contact him at
202-220-1235 or fosterm@pepperlaw.com. [GN]
ORMAT TECHNOLOGIES: Israeli Securities Class Action Still Pending
-----------------------------------------------------------------
Ormat Technologies, Inc. disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2018, that the securities class proceedings in
Israel were stayed by the district court until a final decision in
the U.S. case (Mac Costas) is adjudicated.
On May 21, 2018, a motion to certify a class action was filed in
Tel Aviv District Court against the Company and 11 of its officers
and directors. The alleged class is defined as "All persons who
purchased Ormat shares on the Tel Aviv Stock Exchange between
August 3, 2017 and May 13, 2018.
The motion alleges that the Company violated Sections 31(a)(1) and
38C of the Israeli Securities Law because it allegedly: (1) misled
investors by stating in its financial statements that it maintains
effective internal controls over its accounting policies and
procedures, however the Company's internal controls had material
weaknesses which led to erroneous accounting in its 2017 unaudited
quarterly reports that had to be restated, including adjustments to
the Company's net income and shareholders' equity; and (2) failed
to issue an immediate report in Israel until May 16, 2018,
analogous to the report that was released in the United States on
May 11, 2018 stating, inter alia, that the errors in its financial
reports affected its balance sheet and would be remedied in its
2017 annual report.
Ormat Technologies, Inc. engages in the geothermal and recovered
energy power business worldwide. The company operates through
Electricity and Product segments. It was founded in 1965 and is
based in Reno, Nevada.
ORMAT TECHNOLOGIES: PGV Still Faces Suit on Alleged Toxic Release
-----------------------------------------------------------------
Ormat Technologies, Inc.'s subsidiary, Puna Geothermal Venture
continues to defend itself in a lawsuit related to an alleged toxic
release in the wake of Hurricane Iselle, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2018.
On August 5, 2016, George Douvris, Stephanie Douvris, Michael Hale,
Cheryl Cacocci, Hillary E. Wilt and Christina Bryan, acting for
themselves and on behalf of all other similarly situated residents
of the lower Puna District, filed a complaint in the Third Circuit
Court for the State of Hawaii (the "Third Circuit Court") seeking
certification of a class action for preliminary and permanent
injunctive relief, consequential and punitive damages, attorney's
fees and statutory interest against Puna Geothermal Venture ("PGV")
and other presently unknown defendants.
On December 12, 2016, the District Court granted plaintiffs motion
for joinder of HELCO as a co-defendant. The amended complaint
purports that injuries and other damages in an undisclosed amount
were caused to the plaintiffs as a result of an alleged toxic
release by PGV in the wake of Hurricane Iselle in August 2014.
On June 14, 2017, the Third Circuit Court denied HELCO's motion to
discuss the complaint against itself which it had filed On March
25, 2017. Discovery is underway.
The Company believes that it has valid defenses under law and
intends to defend itself vigorously.
On June 19, 2018, PGV filed a motion for leave to serve a
third-party complaint for damages against third party defendants
Valve Service & Supply Inc. and Curtiss-Wright Flow Control
Corporation, who are, respectively, the distributor and
manufacturer of the pressure release valve that failed to reseat
during the Hurricane Iselle. The claim is for recovery of damages
to PGV due to the supply of a defective pressure valve to PGV,
which defect was the cause for any alleged toxic or unpermitted
release of Hydrogen Sulfide. HELCO subsequently filed a motion of
no objection to the PGV filing.
Ormat Technologies, Inc. engages in the geothermal and recovered
energy power business worldwide. The company operates through
Electricity and Product segments. It was founded in 1965 and is
based in Reno, Nevada.
ORMAT TECHNOLOGIES: Riche Class Action vs. USG Still Pending
------------------------------------------------------------
The purported class action entitled Riche v. Pappas, et al., Case
No. 2018-0177 (Del. Ch., Mar. 12, 2018) remains pending, according
to Ormat Technologies, Inc.'s Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
On April 24, 2018, the Company completed its previously announced
acquisition of USG. As a result of the acquisition, USG became an
indirect wholly owned subsidiary of Ormat, and Ormat indirectly
acquired, among other things, interests held by USG and its
subsidiaries.
Following the announcement of the Company's acquisition of U.S.
Geothermal (USG), a number of putative shareholder class action
complaints were initially filed on behalf of USG shareholders
between March 8, 2018 and March 30, 2018 against USG and the
individual members of the USG board of directors. All of the
purported class action suits filed in Federal Court in Idaho have
been voluntarily dismissed.
The single remaining class action complaint is a purported class
action filed in the Delaware Chancery Court, entitled Riche v.
Pappas, et al., Case No. 2018-0177 (Del. Ch., Mar. 12, 2018). An
amended complaint was filed on May 24, 2018 under seal, under a
confidentiality agreement that was executed by the plaintiff (the
"Amended Complaint"). The Amended Complaint alleges state law
claims for breach of fiduciary duty against former USG directors
and seeks post-closing damages.
Ormat Technologies, Inc. engages in the geothermal and recovered
energy power business worldwide. The company operates through
Electricity and Product segments. It was founded in 1965 and is
based in Reno, Nevada.
ORMAT TECHNOLOGIES: Securities Class Action in Nevada Underway
--------------------------------------------------------------
Ormat Technologies, Inc. is facing a putative class action in the
U.S. District Court for the District of Nevada, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
On June 11, 2018, a putative class action on behalf of alleged
shareholders that purchased or acquired the Company's ordinary
shares between August 8, 2017 and May 15, 2018 was commenced in the
United States District Court for the District of Nevada against the
Company and its Chief Executive Officer and Chief Financial
Officer.
The complaint asserts claims against all defendants pursuant to
Section 10(b) of the Exchange Act, as amended, and Rule 10b-5
thereunder and against its officers pursuant to Section 20(a) of
the Exchange Act. The complaint alleges that the Company's Form
10-K for the years ended December 31, 2016 and 2017, and Form 10-Qs
for each of the quarters in the nine months ended September 30,
2017 contained material misstatements or omissions, among other
things, with respect to the Company's tax provisions and the
effectiveness of its internal control over financial reporting, and
that, as a result of such alleged misstatements and omissions, the
plaintiffs suffered damages.
Ormat Technologies said, "The Company has not yet responded to the
complaints. The Company believes that it has valid defenses under
law and intends to defend itself vigorously."
Ormat Technologies, Inc. engages in the geothermal and recovered
energy power business worldwide. The company operates through
Electricity and Product segments. It was founded in 1965 and is
based in Reno, Nevada.
OSIRIS THERAPEUTICS: Accrues $18.5M "Nallagonda" Costs at June 30
-----------------------------------------------------------------
Osiris Therapeutics, Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that it accrues US$18.5 million as of
June 30, 2018 for its shareholder settlement liability in the
"Nallagonda" securities suit. The Company further stated that the
settlement remains subject to Court approval.
On November 23, 2015, a putative class action lawsuit was filed in
the United States District Court for the District of Maryland by a
single plaintiff, individually and on behalf of other persons
similarly situated, against the Company and three current or former
executive officers of the Company. An amended complaint clarifying
plaintiff's claims was filed on April 6, 2018. The action,
captioned Kiran Kumar Nallagonda v. Osiris Therapeutics, Inc. et
al., Case 1:15-cv-03562 (the "Nallagonda Action"), alleges, among
other things, that the defendants made materially false or
misleading statements and material omissions in the Company's
filings with the SEC in violation of the federal securities laws.
The complaint seeks certification as a class action, unspecified
damages and reimbursement of attorneys' fees.
On March 21, 2016, the court entered an order appointing Dr. Raffy
Mirzayan as lead plaintiff and the firm of Hagens Berman Sobol
Shapiro LLP as lead counsel.
On March 11, 2018, the Company entered into a memorandum of
understanding to settle the Nallagonda Action. Subsequently, on
June 5, 2018, the parties executed a Stipulation and Settlement
Agreement in which the Company agreed in principle to pay US$18.5
million in cash to create a settlement fund for the benefit of
class members.
On June 12, 2018, the lead plaintiff filed an Unopposed Motion for
Preliminary Approval of the parties' settlement. The Company also
expects that lead plaintiff will seek an award of attorneys' fees
and expenses from the settlement fund.
The Company said, "Both the settlement itself and any award to lead
plaintiff of attorneys' fees and expenses remain subject to Court
approval. The Company can provide no assurance that the Court will
approve the settlement. The US$18.5 million shareholder settlement
liability was recorded in Accrued shareholder litigation in the
Company's condensed consolidated balance sheets as of June 30, 2018
and December 31, 2017."
The Company had a US$5.0 million executive and corporate securities
liability insurance policy in place at the time of the allegations.
The Company expects to recover the remaining US$4.8 million of
unused policy coverage for the shareholder settlement of the
Nallagonda Action in 2018. The US$4.8 million insurance receivable
was recorded in Insurance receivable in the Company's condensed
consolidated balance sheets as of June 30, 2018 and December 31,
2017.
Osiris Therapeutics, Inc., together with its wholly-owned
subsidiary, Osiris Therapeutics International GmbH, researches,
develops, manufactures and commercializes regenerative medicine
products intended to improve the health and lives of patients and
lower overall healthcare costs. The company is based in Columbia,
Maryland.
PARCEL PENDING: Swigart Files Personal Injury Suit in S.D. Calif.
-----------------------------------------------------------------
A class action lawsuit has been filed against Parcel Pending, Inc.
The case is styled Jason Swigart individually and on behalf of all
others similarly situated, Plaintiff v. Parcel Pending, Inc.,
Defendant, Case No. 3:18-cv-02238-BEN-WVG (S.D. Cal., Sept. 26,
2018).
The cause of suit is stated as Personal Injury.
Parcel Pending, Inc. provides electronic parcel lockers. They
provide electronic lockers for residents, and commercial office
building. They also provide indoor locker, refrigerator, and
outdoor locker solution. They also offer courier to deliver
packages. The company was incorporated in 2013 and is based in
Trabuco Canyon, California.[BN]
The Plaintiff is represented by:
Matthew M. Loker, Esq.
Kazerouni Law Group, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Phone: (800) 400-6808
Fax: (800) 520-5523
Email: ml@kazlg.com
PERFORMANCE FOOD: Snellgrove's Restaurant Sues over Fuel Charges
----------------------------------------------------------------
SNELLGROVE'S RESTAURANT, INC., individually and on behalf of all
others similarly situated, Plaintiff v. PERFORMANCE FOOD GROUP
COMPANY; and PERFORMANCE FOOD GROUP, INC., Defendants, Case No.
76955817 (Fla. Cir., Hillsborough Cty., Aug. 24, 2018) alleges
violation of the Florida Deceptive and Unfair Trade Practices Act.
According to the complaint, the Defendant markets, sells, and
distributes food products to restaurants, healthcare and
educational facilities, lodging establishments and other customers
like Snellgrove's. In addition to the amount the Defendant charges
its customers for the sale and delivery of food products, the
Defendant charges its customers a fee it calls a "Fuel Charge". The
term "Fuel Charge" has an understood meaning and in using this
term, the Defendant represents that it charges the Fuel Charge to
recover the increased fuel costs it incurs in delivering products
to its customers. The Defendant represents that the Fuel Charge
varies in accordance with its increased fuel costs and that the
revenue from the Fuel Charge is used to offset those increased
costs.
The Defendant's representations, omissions, and practices in
charging the Fuel Charge are deceptive and unfair. The Fuel Charge
bears absolutely no relation to the Defendant's actual increased
fuel costs, or its actual fuel costs, and it does not use the
proceeds from the Fuel Charge to offset its increased fuel costs,
or its actual fuel costs. The amount of the Fuel Charge generally
does not change, despite fluctuations in the Defendant's fuel
costs. Further, the Defendant includes any increases in fuel costs
it might incur in delivering products in the standard prices it
charges customers. The Defendant uses the Fuel Charge simply to
generate extra profit at its customers' expense, all the while
deceiving customers into believing that the fee is a legitimate
charge directly related to actual increased fuel costs it incurs,
which it falsely claims it cannot control.
Performance Food Group Company, through its subsidiaries, markets
and distributes food and food-related products in the United
States. It operates in three operating segments: Performance
Foodservice, PFG Customized, and Vistar. Performance Food Group
Company was founded in 2002 and is headquartered in Richmond,
Virginia. [BN]
The Plaintiff is represented by:
Ryan B. Hobbs, Esq.
BROOKS LEBOEUF BENNETT
FOSTER & GWARTNEY, P.A.
909 East Park Avenue
Tallahassee, FL 32301
Telephone: (850) 222-2000
Facsimile: (850) 222-9757
E-mail: Rhobbs@tallahasseeattorneys.com
Jeanetta@tallahasseeattorneys.com
PFIZER INC: MSP Alleges Price- Fixing of Lipitor
------------------------------------------------
MSP RECOVERY CLAIMS, SERIES, LLC, a Delaware entity, MSPA CLAIMS 1,
LLC, a Florida entity, and MAO-MSO Recovery II LLC, the Plaintiffs,
v. PFIZER INC., PFIZER IRELAND PHARMACEUTICALS, WARNERLAMBERT
COMPANY, RANBAXY LABORATORIES LIMITED, RANBAXY INC., and RANBAXY
PHARMACEUTICALS, INC., the Defendants, Case No. 2nd Cir. (S.D.
Fla., Sep. 13, 2018), alleges that the Defendants fixed, raised,
and stabilized price of Lipitor and generic Lipitor at
supracompetitive levels by unlawfully forestalling generic
competition.
The complaint contends that the Defendants engaged in
anticompetitive scheme to delay the market entry of generic
Lipitor, a statin used to lower cholesterol. Warner-Lambert secured
a patent for Lipitor in 1987. With subsequent extensions, this
patent gave Warner-Lambert over 13 years of market exclusivity for
Lipitor, which it launched in 1997. Typically, the expiration of
such a patent would allow for generic drug sales -- at prices far
below those of the branded drug -- to commence. Seeking to maintain
the supracompetitive profits derived from the exclusive sale of
Lipitor, the Pfizer defendants initiated an unlawful
anticompetitive scheme to extend their market exclusivity by
delaying the market entry of generic atorvastatin calcium.
The Defendants' conduct has driven up prescription drugs costs to
U.S. consumers, the state and federal governments, and third-party
payors in an amount between $10 million and $19 million per day, or
roughly $4 billion to $7 billion per year, the lawsuit claims.
Pfizer Inc. is an American pharmaceutical corporation headquartered
in New York City, with its research headquarters in Groton,
Connecticut. Pfizer is one of the world's largest pharmaceutical
companies.[BN]
The Plaintiff is represented by:
Louise R. Caro, Esq.
NAPOLI SHKOLNIK PLLC
2665 South Bayshore Drive, Suite 220
Coconut Grove, FL 33133
Telephone (786) 837 5442
Facsimile (786) 800 3901
E-mail: lcaro@napolilaw.com
- and -
James L. Ferraro, Esq.
Janpaul Portal, Esq.
THE FERRARO LAW FIRM
Brickell World Plaza
600 Brickell Avenue, 38th Floor
Miami, Florida 33131
Telephone (305) 375 0111
Facsimile (305) 379 6222
E-mail: jlf@ferrarolaw.com
jpp@ferrarolaw.com
jjr@ferrarolaw.com
PHILIP MORRIS: Robbins Geller Files Securities Class Action
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Sept. 4 disclosed that a class
action has been commenced by an institutional investor on behalf of
purchasers of Philip Morris International Inc. (NYSE: PM) common
stock during the period between February 8, 2018 and April 18, 2018
(the "Class Period"). This action was filed in the Southern
District of New York and is captioned City of Westland Police and
Fire Retirement System v. Philip Morris International Inc., No.
18-cv-08049.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Philip Morris common stock during the Class
Period to seek appointment as lead plaintiff. A lead plaintiff acts
on behalf of all other class members in directing the litigation.
The lead plaintiff can select a law firm of its choice. An
investor's ability to share in any potential future recovery is not
dependent upon serving as lead plaintiff. If you wish to serve as
lead plaintiff, you must move the Court no later than 60 days from
September 4, 2018. If you wish to discuss this action or have any
questions concerning this notice or your rights or interests,
please contact plaintiff's counsel, Brian Cochran of Robbins Geller
at 800-449-4900 or 619-231-1058, or via e-mail at djr@rgrdlaw.com.
You can view a copy of the complaint as filed at
http://www.rgrdlaw.com/cases/philipmorris/.
The complaint charges Philip Morris and certain of its officers
with violations of the Securities Exchange Act of 1934. Philip
Morris is one of the largest and most recognizable cigarette and
tobacco manufacturing companies in the world. The Company's
subsidiaries and affiliates and their licensees are engaged in the
manufacture and sale of cigarettes and other nicotine-containing
products in markets outside of the United States.
The complaint alleges that during the Class Period, defendants made
false and misleading statements and/or failed to disclose adverse
information regarding the Company's business and prospects,
including that Philip Morris was experiencing a faster decline in
overall cigarette and e-cigarette (or "heated tobacco") sales
volumes during the first quarter of 2018 than investors had been
led to believe, that its much-lauded sales initiatives had stalled,
and that it was experiencing adverse sales headwinds in key
markets. As a result of these misrepresentations, Philip Morris
stock traded at artificially inflated prices during the Class
Period, reaching a high of $109 per share. In addition, while the
Company's stock price was artificially inflated, the Company's CEO
sold 49,000 shares of his Philip Morris stock at these artificially
inflated prices for proceeds of more than $5 million.
Then, on April 19, 2018, Philip Morris issued a press release
announcing disappointing results for the Company's first quarter of
2018. Against its easiest prior-year comparison, the Company
reported that combined cigarette and heated tobacco unit shipment
volume had declined by 2.3% during the quarter. The Company also
stated that key sales initiatives had stalled, as the Company's
heated tobacco unit growth had plateaued due to market demographics
and faltering consumer conversion tactics and, further, that
cigarette shipments had fallen by 5.3% during the quarter,
signaling persistent adverse trends in the business. On this news,
the price of Philip Morris stock declined $15.80 per share, or more
than 15%, to close at $85.64 per share on April 19, 2018.
Plaintiff seeks to recover damages on behalf of all purchasers of
Philip Morris common stock during the Class Period (the "Class").
The plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- is one of the world's
leading law firms representing investors in securities litigation.
With 200 lawyers in 10 offices, Robbins Geller has obtained many of
the largest securities class action recoveries in history. For five
consecutive years, ISS Securities Class Action Services has ranked
the Firm in its annual SCAS Top 50 Report as one of the top law
firms in both amount recovered for shareholders and total number of
class action settlements. Robbins Geller attorneys have helped
shape the securities laws and recovered tens of billions of dollars
on behalf of aggrieved victims. Beyond securing financial
recoveries for defrauded investors, Robbins Geller also specializes
in implementing corporate governance reforms, helping to improve
the financial markets for investors worldwide. [GN]
PHILLIPS FEED: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Phillips Feed
Service, Inc., et al. The case is styled as Linda Slade
individually and as the representative of a class of similarly
situated persons, Plaintiff v. Phillips Feed Service, Inc. doing
business as: Petflow.com, Petflow, Pet Food Delivery LLC,
Defendants, Case No. 1:18-cv-08811 (S.D. N.Y., Sept. 26, 2018).
The Plaintiff filed the case under the American with Disabilities
Act.
Phillips Feed Service, Inc., doing business as Phillips Pet Food &
Supplies, distributes pet food and pet supplies to independent pet
stores in the United States. It offers sumps and refugiums, dog or
cat food, leash, freeze-dried treats and dog food, treats and
supplements for cats and dogs, dog chews, raw pet food, kibbles,
pet crates, and savory meals and ingredient diets; and aquarium
lighting, tank kits, litter, dog products, nano tanks, pet toys,
and flea and tick repellents. The company was founded in 1938 and
is based in Easton, Pennsylvania.[BN]
The Plaintiff appears pro se.
PHOENIX, AZ: ACLU Sues Police Over 2017 Trump Rally Response
------------------------------------------------------------
Jason Pohl, writing for Arizona Republic, reports that a
class-action lawsuit has been filed against the city of Phoenix and
police Chief Jeri Williams, claiming her officers violated the
rights of thousands of people who were protesting outside President
Donald Trump's August 2017 downtown rally.
The lawsuit, filed in U.S. District Court in Phoenix on behalf of
activist groups Puente Arizona and Poder in Action, and four named
residents, claims police used excessive force while dispersing
crowds outside of the Phoenix Convention Center on Aug. 22, 2017.
Officers fired more than 590 projectiles "indiscriminately" into a
crowd that "included children, elderly people, disabled people, and
pregnant women," the lawsuit said.
"Under the direction of Chief Williams, Phoenix police disregarded
the constitutional rights of protesters that night," said ACLU of
Arizona Legal Director Kathy Brody in a statement.
"At the precise moment when anti-Trump protesters intended to
deliver to the president and his supporters their messages
renouncing his policies, Phoenix police -- without warning -- used
incapacitating weaponry to silence and disperse hundreds of
peaceful anti-Trump protesters."
The lawsuit was filed by the Arizona chapter of the ACLU, Los
Angeles-based law firm Hadsell Stormer & Renick LLP and civil
rights attorney Dan Pochoda. Plaintiffs are requesting a court bar
Phoenix police from using excessive force against protesters in the
future and are also seeking financial rewards.
The ACLU also sued the department last year in a bid to collect
public records on the agency's use of force during the rally.
Among those listed as plaintiffs in the lawsuit is Ira Yedlin, a
70-year-old man from Bisbee who traveled to protest Trump. Speaking
to The Arizona Republic in the days after the protest, Mr. Yedlin
said he was a lifelong protester, but what happened as crowds
dispersed from the Phoenix rally was unlike anything he had
witnessed before.
"I've been at, over the last 50 years, dozens of protests," he said
previously. "Never have I seen a police reaction like that without
any apparent provocation."
A Phoenix police internal investigation found officers could have
better communicated with protesters, and Williams said she accepted
the community criticism that followed the event.
Still, she largely stood by her officers' actions.
"The tragedies that happened in other cities did not happen in
Phoenix," she said, referring to the deadly demonstrations in
Charlottesville, Virginia, that occurred just days before Trump's
appearance in Phoenix.
A 31-page report issued earlier this year provided a harsher
self-assessment than the police department had offered in the past.
It detailed the ammunition used against the crowd, as well as a
timeline of events.
In a section titled "Opportunities for Improvement," the report's
suggestions include a "proactive notification process" to
communicate with groups causing disorder, greater use of social
media and tools -- like megaphones -- to keep the public informed
in real time, and to provide warnings in both English and Spanish.
Key to the report is a 17-minute gap between the time Phoenix
police began deploying their munitions -- first smoke, then pepper
balls, then tear gas -- and the first time the agency made
widespread warnings to disperse.
At 8:34 p.m., police donned gas masks and requested an air unit to
illuminate the area and make announcements to disperse. Police
officials initially said the gas masks alone should have been a
warning to protesters, a point protesters later would criticize.
The report also shows there was a lag in the time the Air Unit was
given instructions to warn protesters and when the announcement was
actually made. The report's authors attribute the delay to waiting
for clearance from the Federal Aviation Administration. Officers
began using their weapons at 8:35 p.m., and the Air Unit
announcements kicked out at 8:52 p.m.
None of the officers involved were disciplined.
According to the report, one officer deployed a smoke grenade and
two tear gas grenades without receiving direction from the field
commander. When asked why he was not disciplined, a Phoenix police
spokesman said the officer was certified to use the equipment and
was responding to a dynamic situation.
Citing the continuing litigation, a Phoenix police spokeswoman
declined to comment on Sept. 4.
Activist groups have continued to reel from the use-of-force
incident, something that has had a chilling effect on subsequent
demonstrations in the past 13 months, attorneys said.
"Absent the court's intervention, those who wish to gather and
speak will continue to experience understandable fear of police
retaliation when participating in protests, demonstrations, and
marches, particularly when expressing anti-Trump views," attorneys
wrote.
The 47-page lawsuit also called attention to the surge in police
shootings across Phoenix this year. There have been 37 police
shootings this year, an unprecedented record that translates, on
average, to one incident each week. There were 21 shootings in all
of 2017, 25 in 2016 and 17 in 2015.
The city surpassed its annual record of 31 shootings set in 2013
this past July.
"The Phoenix Police Department's epidemic of violence is a crisis
in our community," Viri Hernandez, executive director of
Phoenix-based Poder in Action, wrote in a statement. "The police
violence we saw at the anti-Trump protest is the same police
violence that has caused Phoenix to lead the nation in
officer-involved shootings. The lack of accountability for police
violence by the mayor, city council, and Chief Williams is
inexcusable." [GN]
PLUMBERS INC: Eric Christian Seeks Unpaid Wages under Labor Code
----------------------------------------------------------------
ERIC CHRISTIAN, an individual, on behalf of himself and others
similarly situated, the Plaintiff, v. PLUMBERS INCORPORATED;
RITE-AWAY SERVICES, INC.; ROLAND V. MUNOZ; and DOES 1 to 50,
inclusive, the Defendant, Case No. 37-2018-00046642-CU-OE-CTL (Cal.
Super. Ct., Sept. 13, 2018), seeks to recover unpaid wages and
overtime under the California Labor Code.
According to the complaint, for at least four years prior to the
filing of this action continuing to the present, the Defendants
have had a consistent policy of failing to pay wages and/or
overtime to the Plaintiff and the Proposed Class. The Plaintiff and
other Proposed Class Members were not properly compensated for all
hours worked. Also, the Defendants do not provide paid rest periods
to Plaintiff and the Proposed Class. As piece rate employees, when
the Plaintiff and the Proposed Class Members took their 10-minute
rest periods, they were not compensated in any way. As such, they
are entitled to wages for each and every rest period provided by
the Defendants.
The Defendants offer plumbing repair services.[BN]
The Plaintiff is represented by:
Darren M. Cohen, Esq.
KINGSLEY & KINGSLEY, APC
16133 Ventura Blvd., Suite 1200
Encino, CA 91436
Telephone: (818) 990 8300
Facsimile: (818) 990 2903
E-mail: dcohen@kingsleykingsley.com
POLARIS CLEANERS: Rivera Files FLSA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Polaris Cleaners 99,
Inc. et al. The case is styled as Wuilzon Zacarias Ruiz Rivera also
known as: Luis, Rodolfo Hidalgo Albino also known as: Gordo,
individually and on behalf of others similarly situated, Plaintiffs
v. Polaris Cleaners 99, Inc. doing business as: Polaris Organic
Cleaners, Richard J An, Ruben Jacobo, Defendants, Case No.
1:18-cv-08817 (S.D. N.Y., Sept. 26, 2018).
The Plaintiff filed the case under the Fair Labor Standards Act.
Polaris Cleaners 99, Inc. is a laundry service located at 99 Park
Ave on 39th St, New York City, NY 10016, United States, b/t 39th St
& 40th St, Murray Hill, Midtown East.[BN]
The Plaintiff appears pro se.
POSTMATES INC: Misclassifies Drivers, Santana Claims
----------------------------------------------------
WENDY SANTANA, an individual, on behalf of aggrieved employees
pursuant to the Private Attorney General Act, the Plaintiff, v.
POSTMATES, INC., a Delaware Corporation; and DOES 1 through 100,
inclusive, the Defendant, Case No. BC720l51 (Cal. Super. Ct., Sept.
4, 2018), seeks to recover alleges that Defendants engaged in
unlawful misclassification scheme, thus avoiding costs of providing
workers compensation to its drivers, denying them much needed
protection in the event of work-related injuries or illnesses.
According to the complaint, Postmates also unlawfully passes on its
operation costs to its drivers. Postmates' unlawful conduct of
misclassifying drivers also allows it to deprive Plaintiff and
other drivers of fundamental employment rights, such as the right
to minimum wages, the right to mandated meal breaks, the right to
mandated rest breaks, the right to premium wages for missed meal
and rest breaks, the right to accurate itemized wage statements,
the right to the prompt payment of full wages within time limits
designated by law, and the right to workers compensation
protection, guaranteed to employees under various provisions of the
Labor Code and applicable wage order.
Postmates is an on-demand delivery company that enables customers
to order a variety of goods from local stores and have it delivered
to them for a fee. To make an order, users use the POSTMATES
smartphone app to place an order from participating business. When
an order is placed, the price is shown and charged to the user’s
credit card. The price includes a convenience fee, a delivery fee,
and the cost of the order including tax. The Postmates is dependent
on its delivery drivers to operate and could not exist without
them. To become a driver, applicants must provide POSTMATES with
their email address, date of birth, phone number, smartphone brand,
vehicle information, and the area they intend to work. Postmates,
then performs a background check. If approved, the driver has an
orientation meeting and provides POSTMATES with a copy of their
insurance information, driver's license, and bank account routing
number. After the meeting, the applicant has one-on-one training
with another driver. They then receive a welcome kit, which
contains a prepaid card that they use to pay for the items they
will be delivering.[BN]
The Plaintiff is represented by:
R. Rex Parris, Esq.
Kitty K. Szeto, Esq.
John M. Bickford, Esq.
Ryan A. Crist, Esq.
PARRIS LAW FIRM
43364 10th Street West
Lancaster, CA 93534
Telephone: (661) 949 7524
Facsimile: (661) 949 7524
POTBELLY CORP: Still Faces Assistant Managers' Class Suit in N.Y.
-----------------------------------------------------------------
Potbelly Corporation still defends itself against the assistant
managers' purported collective and class action lawsuit in New
York, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
July 1, 2018.
In October 2017, plaintiffs filed a purported collective and class
action lawsuit in the United States District Court for the Southern
District of New York against the Company alleging violations of the
Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The
plaintiffs allege that the Company violated the FLSA and NYLL by
not paying overtime compensation to the Company's assistant
managers and violated NYLL by not paying spread-of-hours pay.
Potbelly said it believes the assistant managers were properly
classified under state and federal law. The Company intends to
vigorously defend this action. This case is at an early stage, and
Potbelly is therefore unable to make a reasonable estimate of the
probable loss or range of losses, if any, that might arise from
this matter.
Potbelly Corporation is a neighborhood sandwich concept offering
toasty warm sandwiches, signature salads and other fresh menu items
served by engaging people in an environment that reflects the
Potbelly brand. The company is based in Chicago, Illinois.
PROVIDENCE COMMUNITY: Court Reaffirms Dismissal of Brinson Suit
---------------------------------------------------------------
In the case, CHRISTINA BRINSON, and all other persons similarly
situated, Plaintiff, v. PROVIDENCE COMMUNITY CORRECTIONS,
Defendant, Case No. CV 215-99 (S.D. Ga.), Judge Lisa Godbey Wood of
the U.S. District Court for the Southern District of Georgia,
Brunswick, (i) denied Brinson's motion to amend/correct the
complaint; (ii) denied as moot Brinson's motion to certify issues
to the Georgia Supreme Court, motion to compel discovery, motion to
certify class, and motion to preserve evidence; and (iii)
reaffirmed its order dismissing Brinson's original complaint for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).
The case was remanded to the Court by the Eleventh Circuit Court of
Appeals on a limited basis, that is, to determine whether subject
matter jurisdiction exists. Upon remand, the Court ordered
jurisdictional discovery and supplemental briefing thereon.
Thereafter, the Plaintiff filed several motions, including a motion
to amend the complaint, a motion to certify issues to the Georgia
Supreme Court, a motion to compel discovery, a motion to certify
class, and a motion to preserve evidence. The jurisdictional issue
and Plaintiff's motions are now before the Court.
In 2012, Brinson pled guilty in Georgia's Wayne County State Court
to several misdemeanor offenses. The court imposed fines on
Brinson and sentenced her to four one-year terms of confinement,
but the court allowed her to serve the sentences on probation.
Under Georgia law, counties can take the more traditional route of
establishing and operating their own probation systems, but they
can also contract with private companies for the private provision
of probation services. The Wayne County State Court, along with
Wayne County itself, contracted with Defendant Providence for the
private provision of probation services. Wayne County State Court
referred Brinson to Providence for probation.
The "Services Agreement" among Providence, Wayne County, and the
Wayne County State Court created what it deemed a user-based fee
program. Under this program, Providence generated income by
requiring probationers to pay Providence costs and fees associated
with the various services the probationers received as part of
their probation. Wayne County and the Wayne County State Court
paid nothing to Providence; the court's obligation was simply to
enforce probationers' duty to pay for services received.
In July 2015, Brinson filed suit in the Court, attacking Georgia's
private-probation system and seeking relief on behalf of a class of
individuals who have paid probation-related fees to Providence in
Georgia. In Count I of her original complaint, she seeks an order
declaring the statute authorizing Georgia's private-probation
system unconstitutional on a number of grounds under the U.S. and
Georgia Constitutions. Count I also seeks a declaration that the
Services Agreement is void for not having been properly approved or
re-approved by Wayne County and the Wayne County State Court. In
Count II, Brinson seeks damages under the Georgia-law theory of
"money had and received" based on the fees she paid pursuant to the
allegedly void Services Agreement.
Providence responded to the complaint with a motion to dismiss for
lack of subject-matter jurisdiction and for failure to state a
claim. First, Providence argued that the Court lacked jurisdiction
over the complaint because Brinson failed to establish her standing
to bring suit. It also asserted a number of reasons why it
believed Brinson failed to state a claim. The Court granted
Providence's motion to dismiss, finding that, although Brinson
adequately alleged her standing, each of the claims she asserted
failed to state a claim. At no point did Brinson ask the Court for
leave to amend her complaint.
On appeal, the Court of Appeals did not reach the merits of the
dispute because it had serious doubts about whether subject-matter
jurisdiction exists over the case. The Court of Appeals remanded
the case for further proceedings on the issue of subject-matter
jurisdiction.
Brinson's proposed amended complaint notably omits the claims for
prospective relief asserted in the original complaint. In the
Parties' joint motion to modify scheduling order, Brinson expressly
withdrew her declaratory judgment claims. The motion is signed by
both parties and complies with Federal Rule of Civil Procedure
41(a)(1)(A)(ii), the rule governing the dismissal of actions.
Brinson's claim withdrawal was unconditional -- that is, she did
not condition the withdrawal on the Court's granting her motion for
leave to amend the complaint. At the post-remand motions' hearing,
the Plaintiff made no attempt to assert or revive the declaratory
judgment claims. Accordingly, Count I is withdrawn, and, as such,
now moots any question of standing to bring the withdrawn claim.
On the last day of jurisdictional discovery, the Plaintiff filed a
motion to amend/correct the complaint. Soon thereafter, the
parties filed a joint motion to modify the briefing schedule
previously ordered, acknowledging that the jurisdictional question
had effectively been resolved but that a new one, i.e., whether the
Court should allow the Plaintiff to amend the complaint, had
arisen. The Court ordered revised briefing and held a hearing on
this issue. Thereafter, the Plaintiff filed a motion to certify
issues to the Georgia Supreme Court, a motion to compel discovery,
a motion to certify class, and a motion to preserve evidence.
As to Brinson's Motion to Amend, Judge Wood finds that it offers
almost no argument other than to say she does not believe that
there is even a hint in the case of undue delay, or that there
would be any undue prejudice to the Defendant. Not until her reply
brief does Brinson offer reasons why the Court should allow
amendment. Her arguments are essentially that the passage of time
alone does not justify denial of leave to amend and that amendment
would not be futile because the merits of the underlying case
deserve adjudication.
As to Brinson's other motions, in accordance with the Court's
ruling supra, the Judge denied as moot Brinson's motion to certify
issues to the Georgia Supreme Court, motion to compel discovery,
motion to certify class, and motion to preserve evidence.
Judge Wood reaffirmed the Court's Order dismissing Brinson's
original complaint for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). There being no claims remaining in the case, she
directed the Clerk to close the case.
A full-text copy of the Court's April 24, 2018 Order is available
at https://is.gd/I5itIi from Leagle.com.
PUTNAM INVESTMENTS: Seyfarth Shaw Attorney Discusses Ruling
-----------------------------------------------------------
Michelle M. Scannell, Esq., of Seyfarth Shaw LLP, in an article for
Mondaq, wrote that a district court recently denied a motion to
dismiss a 401k proprietary fund class action, continuing an
overwhelming trend of allowing these cases to survive pleading
challenges. On the bright side, however, the Eighth Circuit
recently affirmed a dismissal of such a case, and the first of
these cases to be tried resulted in a defense victory, which is on
appeal with the First Circuit.
The plaintiffs' bar sparked a new 401k class action trend a few
years ago by targeting "proprietary" in-house investment products,
alleging that fiduciaries were committing a breach by including
their in-house proprietary funds in plans to the exclusion of less
expensive, better-performing comparable options.
In most of these cases, plaintiffs have survived initial pleading
challenges. Generally courts have found that allegations underlying
these cases supported an inference that the fiduciaries engaged in
a flawed process (e.g., Cryer v. Franklin Templeton Res.; Urakhchin
v. Allianz Asset Mgmt. of Am.).
A district court in Maryland recently continued the trend by
denying a motion to dismiss a first amended complaint for a
proprietary fund case (i.e., Feinberg v. T. Rowe Price Group, Inc.,
et al.). In Feinberg, plaintiffs alleged that fiduciaries breached
their duties and committed related ERISA violations by, among other
things, including in the plan retail-class versions of in-house
funds even though purportedly cheaper versions of the same funds
were available for commercial customers.
Notably, in addressing defendants' argument that the plan documents
required that they select an exclusive line-up of proprietary
funds, the court found that the decision to structure the plan that
way was a settlor, non-fiduciary function, and "did not provide a
blanket defense" for the fiduciaries. The court concluded that
plaintiffs pled sufficient allegations to raise plausible
inferences to support all of their claims.
Defendants also argued that plaintiffs' prohibited transaction
claim was barred under ERISA's six-year statute of repose, because
no prohibited transaction (i.e. the initial inclusion of the fund
in the plan) occurred within six years of the lawsuit.
The court noted that while defendants "may have viable defenses,"
the claim would not be dismissed now, because the court could infer
a plausible timely claim of prohibited transactions, including the
continuous monthly fees being paid for the funds at issue.
In contrast to this decision and the plaintiff-friendly trend on
pleading challenges for these cases, one defense victory on a
motion to dismiss was recently affirmed by the Eighth Circuit:
Meiners v. Wells Fargo & Co. In that case, the Eighth Circuit
expressly acknowledged the "challenging pleading burden" for
plaintiffs because they have different levels of knowledge
regarding the investment choices the fiduciary made versus how the
choices were made.
The Eighth Circuit held that the existence of a cheaper fund, as
pled by plaintiff, doesn't mean that a particular proprietary fund
is too expensive in the market generally or that it's otherwise an
imprudent choice.
As any litigator knows, losing a motion to dismiss is the loss of
merely one battle in what can be a long-fought (and not to mention,
costly) war. In fact, in the first of these cases to go to trial
resulted in a defense victory, which is pending appeal in the First
Circuit, Brotherston v. Putnam Investments LLC.
While some companies avoid protracted litigation and choose to
settle these cases at early stages, this is not to say that a sound
fiduciary process cannot be ultimately vindicated in court. Stay
tuned for further developments. [GN]
REALPAGE INC: McIntyre Sues Over Erroneous Credit Report
--------------------------------------------------------
Patricia McIntyre, on behalf of herself and all others similarly
situated, Plaintiff, v. Realpage, Inc., Defendant, Case No. 18-cv-
03934, (E.D. Pa., September 12, 2018) seeks relief for violations
of the Fair Credit Reporting Act.
Realpage, Inc. is a consumer reporting agency who does business as
"On-Site." On or about July 27, 2017, McIntyre applied to rent an
apartment at The Metropolitan Manayunk Hill, an apartment building
in Philadelphia. However, On-Site's rental report contained credit
information about McIntyre that included four inaccurate and
out-of-date items of eviction, says the complaint. [BN]
The Plaintiff is represented by:
James A. Francis, Esq.
John Soumilas, Esq.
Lauren KW Brennan, Esq.
FRANCIS & MAILMAN, P.C.
Land Title Building, Suite 1902
100 South Broad Street
Philadelphia, PA 19110
Tel: (215) 735-8600
Fax: (215) 940-8000
Email: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
lbrennan@consumerlawfirm.com
RECKITT BENCKISER: Sims Files Fraud Class Suit in N.D. Illinois
---------------------------------------------------------------
A class action lawsuit has been filed against Reckitt Benckiser,
LLC. The case is styled Donna Sims individually and on behalf of
all others similarly situated, Plaintiff v. Reckitt Benckiser, LLC,
Defendant, Case No. 1:18-cv-06565 (N.D. Ill., Sept. 26, 2018).
The nature of suit is stated as Other Fraud.
Reckitt Benckiser LLC manufactures household, health and personal
care, and food products under the brands Finish, Easy-Off, Cepacol,
and Lysol No Touch. The company was incorporated in 1977 and is
based in Parsippany, New Jersey. Reckitt Benckiser LLC operates as
a subsidiary of Reckitt Benckiser Group plc.[BN]
The Plaintiff appears pro se.
REPUBLIC WASTE: Court Narrows Claims in Manny's Uptown Suit
-----------------------------------------------------------
In the case, SHARP MEXICAN PARTNERS, LP, d/b/a MANNY'S UPTOWN, et
al, v. REPUBLIC WASTE SERVICES OF TEXAS, LTD. d/b/a REPUBLIC
SERVICES OF DALLAS & d/b/a ALLIED WASTE SERVICES OF DALLAS, Civil
Action No. 3:17-CV-1605-S (N.D. Tex.), Judge Karen Gren Scholer of
the U.S. District Court for the Northern District of Texas, Dallas
Division, granted in part and denied in part the Defendant's Motion
to Dismiss Plaintiffs' Second Amended Complaint and Class Action.
Pursuant to Special Order 3-318, the case was transferred from the
docket of Judge Jane J. Boyle to the docket of the Court on March
8, 2018. The case arises out of a contract dispute between
Republic, a waste collection service provider, and Manny's Uptown
and Manny's Lakewood, two restaurant entities operating in Dallas
County, Texas. Manny's contracted with Republic for the
collection, transportation, and disposal of all of Manny's
non-hazardous solid waste materials.
Manny's signed a two-page Customer Service Agreement as a
precondition to receiving Republic's services. The Agreement
provides for a monthly rate for Republic's services for a term of
three years. The first page of the Agreement contains information
about the restaurant receiving the services, the contracted
service, and the associated costs. The costs are broken down into
three categories: "monthly service" costs, "one time charges," and
"additional charges."
Manny's Uptown alleges that Republic unilaterally added a Container
Refresh fee onto its monthly invoice in February 2016. It claims
that it never consented to the charge and that nothing in its
contract with Republic contemplated such a charge being imposed.
It paid the fee for nine months before signing a new contract with
Republic. According to Manny's Uptown, the new contract included
ambiguous language regarding the Container Refresh program.
Included in the "additional charges" category of the new Agreement
is a nine-dollar charge for "Container Refresh" services.
Both the Plaintiffs allege that they never requested enrollment in
the program and have never requested a container exchange. Yet,
they are billed every month for the container refresh fee.
Based on the disputed Container Refresh fee, the Plaintiffs bring
claims for breach of contract, fraud by nondisclosure, and
fraudulent inducement. Republic moved to dismiss the class action
claims or, in the alternative, to disqualify the Plaintiffs'
counsel. Further, Republic moved to dismiss all of the Plaintiffs'
causes of action as barred and/or for failure to state a claim.
Judge Scholer granted in part and denied in part the Defendant's
Motion to Dismiss. She denied the Motion to Dismiss as to the
Plaintiffs' breach of contract claim. She granted the Motion as to
the Plaintiffs' fraud by nondisclosure and fraudulent inducement
claims and dismisses those claims without prejudice.
The Judge finds that (i) the Plaintiffs have not indicated that
they are seeking any non-economic damages, and the Amended
Complaint does not provide support for recovery of damages not
based on the Agreement; (ii) the Plaintiffs' allegations wholly
fail to ensure that Republic has sufficient information to
formulate a defense by having notice of the conduct complained of;
and (iii) the Plaintiffs' pleadings sufficient to state a claim for
breach of contract.
If the Plaintiffs wish to file an amended complaint, they must do
so by Sept. 24, 2018. If an amended complaint is not filed by this
date, only the Plaintiffs' breach of contract claim will remain
pending before the Court.
A full-text copy of the Court's April 24, 2018 Memorandum Opinion
and Order is available at https://is.gd/zfxbNC from Leagle.com.
Sharp Mexican Partners L P, doing business as Manny's Uptown &
Sharp Mexican #8 LLC, doing business as Manny's Lakewood,
Plaintiffs, represented by Evan L. Van Shaw --
info@shawlawoffice.com -- Law Offices of Van Shaw, David Welch, Law
Office of Van Shaw, Jeremy Beau Powell, Law Offices of Van Shaw &
Robert Stephen Weinberg , Whitson Wells PMG LLC.
Republic Waste Services of Texas Ltd, doing business as Manny's
Lakewood, Defendant, represented by Melanie Kemp Okon --
mokon@okonhannagan.com -- Okon Hannagan, PLLC, Sarika Naresh Patel
-- spatel@okonhannagan.com -- Okon Hannagan, PLLC & Susan E.
Hannagan -- shannagan@okonhannagan.com -- Okon Hannagan, PLLC.
RESIDENCE INN: Fails to Pay Proper Wages, Arias Suit Alleges
------------------------------------------------------------
BLANCA ARGELIA ARIAS, individually and on behalf of all others
similarly situated, Plaintiff v. RESIDENCE INN BY MARRIOTT, LLC;
MARRIOTT INTERNATIONAL, INC.; and DOES 1 through 20, inclusive,
Defendants, Case No. BC719073 (Cal. Super., Los Angeles Cty., Aug.
23, 2018) is an action against the Defendants for unpaid regular
hours, overtime hours, minimum wages, wages for missed meal and
rest periods.
The Plaintiff was employed by the Defendants as non-exempt
employee.
Residence Inn by Marriott LLC operates as a hotel. It offers
outdoor pool, hot tub, sports court, exercise room, studio suites,
and Internet. The company is based in Williamsburg, Virginia.
Residence Inn by Marriott LLC operates as a subsidiary of Marriott
International, Inc. [BN]
The Plaintiff is represented by:
Ramin R. Younessi, Esq.
LAW OFFICES OF RAMIN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
3435 Wilshire Boulevard, Suite 2200
Los Angeles, CA
Telephone: (213) 480-6200
Facsimile: (213) 480-6201
RESURGENT CAPITAL: Mack Sues over Debt Collection Practices
-----------------------------------------------------------
YVONNE MACK, individually and on behalf of all others similarly
situated, the Plaintiff, v. RESURGENT CAPITAL SERVICES L.P., and
LVNV FUNDING LLC, the Defendants, Case No. 1:18-cv-06300 (N.D.
Ill., Sept. 14, 2018), seeks to recover damages under the Fair Debt
Collection Practices Act.
According to the complaint, on April 27, 2018, on behalf of the
Defendants, another debt collector, Frontline Asset Strategies,
sent the Plaintiff a letter in an attempt to collect the Debt from
the Plaintiff. The Plaintiff received Defendants April 27, 2018
letter on May 11, 2018, and on June 5, 2018 sent a letter to
Frontline disputing the Debt and requesting validation. The
Defendants' June 18, 2018 letter would cause any consumer, let
alone the unsophisticated consumer, to believe that she must yet
again dispute the Debt despite the fact that such consumer had
already submitted a valid dispute of the Debt. Thus, the
Defendants' form letter violated the FDCPA, 15 U.S.C. section 1692,
in one or more of the following ways:
a. Used false, deceptive, misleading and unfair or
unconscionable means to collect or attempt to collect an alleged
debt in violation of 15 U.S.C. section 1692e;
b. Used any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning
the consumer in violation of 15 U.S.C. section 1692e(10);
c. Used unfair and/or unconscionable means to collect or
attempt to collect a debt in violation of 15 U.S.C. section 1692f;
d. Failed to state adequately the name of the creditor to whom
the debt was owed, in violation of 15 U.S. C. section 1692g(a)(2);
and
e. Was otherwise deceptive and failed to comply with the
provisions of the FDCPA.
Resurgent Capital manages and services domestic and international
consumer debt portfolios for credit grantors and debt buyers.[BN]
The Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
Philipps & Philipps, Ltd.
9760 S. Roberts Road Suite One
Palos Hills, IL 60465
Telephone: (708) 974 2900
Facsimile: (708) 974 2907
E-mail: davephilipps@aol.com
mephilipps@aol.com
- and -
Larry P. Smith, Esq.
David M. Marco, Esq.
SMITHMARCO, P.C.
55 W. Monroe Street Suite 1200
Chicago, IL 60603
Telephone: (312) 546 6539
Facsimile: (888) 418 1277
E-mail: lsmith@smithmarco.com
dmarco@smithmarco.com
ROBERT BOSCH: Faces Anti-Racketeering Suit Over Fuel Pumps
----------------------------------------------------------
Robert Kahn, writing for Courthouse News, reported that alleging
violations of federal anti-racketeering law, a class says Ford,
Chevrolet and Chrysler/Jeep outfitted cars with Bosch CP4 fuel
injection pumps that are not compatible with American diesel fuel,
and they refuse to cover the pumps under warranty when they fail.
The case is KEVIN BERRY, DARREN BARSNESS, CHRISTOPHER BESTOR, RON
CROWLEY, ROGER W. DUNAGAN, DARYLE CRAIG EAGLE, JOHN FISHER, JARED
GEUDER, BLAKE GRESSETT, TANNER GRIFFIN, RICHARD TERRELL HAYDOCK,
ROBERT HEARNE, CHARLES DALE HOYT, CEDRIC JONES, JACK LANDRY MANN,
MICHAEL MATHEWS, SHANE MCCASLIN, OROZCO, JIMMY JOSE ORTIZ,
CHRISTOPHER LEE PERRY, TODD ROBINSON, RAY ANTHONY RODRIGUEZ, SARA
ROOK, JOSHUA SCHATZEL, JOSEPH ANTHONY STALLONE, CHARLEY TANNER,
DAVID WALKER, RUDY ZEPEDA, ALDO GRANILLO, MICHAEL JEFFCOAT, each
plaintiff is a citizen of the State of Texas, and each plaintiff
individually and on behalf of all others similarly situated,
Plaintiffs, v. ROBERT BOSCH GMBH, a corporation organized and
existing under the laws of the Federal Republic of Germany; ROBERT
BOSCH, LLC, a Delaware corporation; GENERAL MOTORS LLC, a Delaware
corporation; FORD MOTOR COMPANY, a Delaware corporation FCA US LLC,
F/K/A CHRYSLER GROUP, a Delaware corporation; VM ITALY, an Italian
corporation; and VM NORTH AMERICA, a Delaware corporation,
Defendants, Case No. 2:18-cv-00318 (S.D. Tex.).
A copy of the Complaint from Courthouse News is available at
https://tinyurl.com/ybeqthdd
Attorney in charge for Plaintiffs:
Robert C. Hilliard, Esq.
Hilliard, Martinez, Gonzales LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Phone: (361) 882-1612
Fax: (361) 882-3015
Email: bob@hmglawfirm.com
Of Counsel:
Rudy Gonzales, Jr., Esq.
John B. Martinez, Esq.
Marion Reilly, Esq.
Bradford P. Klager, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Phone: (361) 882-1612
Fax: (361) 882-3015
Email: rudy@hmglawfirm.com
john@hmglawfirm.com
marion@hmglawfirm.com
brad@hmglawfirm.com
-- and --
T. Michael Morgan, Esq.
MORGAN & MORGAN, P.A.
20 North Orange Ave., Ste. 1600
P.O. Box 4979
Orlando, FL 32801
Tel: (407) 418-2081
Fax: (407) 245-3392
E-Mail: mmorgan@forthepeople.com
Secondary Email: plarue@forthepeople.com
ROYAL HOSPITALITY: Fails to Pay Minimum & OT Wages, Nieto Says
--------------------------------------------------------------
MARIA ORTIZ NIETO, as an individual and on behalf of all others
similarly situated, the Plaintiff, v. ROYAL HOSPITALITY, INC., a
California corporation d/b/a RAMADA INN; and DOES 1 through 100,
the Defendant, Case No. 37-2018-00046611-CU-0E-CTL (Cal. Super.
Ct., Sept. 14, 2018), seeks to recover minimum wages and overtime
wages under the California Labor Code.
According to the complaint, the Plaintiff was hired by Defendants
at its Ramada Inn hotel in San Diego County as a non-exempt
employee on or around July 12, 2006 and was employed until
approximately April 10, 2017 when she suffered an injury and was
compelled to resign her employment by Defendants. During her
employment, Plaintiff held the position of "Housekeeper." As a
Housekeeper, Plaintiffs primary job duties included cleaning the
hotel rooms each day and loading supplies necessary for cleaning
onto a cart. During her employment with Defendants, Plaintiff was
generally scheduled to work starting at 8:30 a.m. and ending at
5:00 p.m. However, Plaintiff was often required to work both before
the start of her scheduled shift and after the end of her scheduled
shift, but without proper and legally required compensation.
Specifically, the Plaintiff would often arrive before her scheduled
start time and Defendants required her to begin working but did not
allow her to clock in until her scheduled start time. Therefore,
Plaintiff was not paid for this time, depriving her of all minimum
wages owed. Further, Defendants forced Plaintiff to clock out at
her scheduled end time of 5:00 p.m. even though she had not
actually stopped working. Plaintiff would then need to remain
working until 6:00 p.m. or 6:30 p.m. after having been clocked out
at 5:00 p.m. Plaintiff was clocked out but still working under
Defendants' direction and control but was not properly compensated
for this additional work time, depriving her of all minimum wages
owed. Further, on occasions when Plaintiff worked over eight hours
in a day and/or forty hours in a workweek, this practice of
Defendants of requiring her to work off the clock also deprived her
of all overtime wages owed. As such, Plaintiff and other non-exempt
employees were not compensated for all required minimum and
overtime wages.
Royal Hospitality Incorporated was founded in 1992. The company's
line of business includes operating public hotels and motels.[BN]
The Plaintiff is represented by:
Scott M. Lidman, Esq.
Elizabeth Nguyen, Esq.
Milan Moore, Esq.
LIDMAN LAW, APC
222 N. Sepulveda Blvd., Suite 1550
El Segundo, CA 90245
Telephone: (424) 322 4772
Facsimile: (424) 322 4775
E-mail: slidman@lidmanlaw.com
enguyen@lidmanlaw.com
mmoore@lidmanlaw.com
- and -
Paul K. Haines, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Suite 1550
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslawgroup.com
S.T.E.P. INC: Faces Garcia Suit in California Superior Court
------------------------------------------------------------
Kimber Garcia and Alyssa Chavez Ulness, on behalf of themselves and
on behalf of all persons similarly situated, the Plaintiffs, vs
Does 1-50 and Strategies to Empower People Inc., the Defendants,
Case No. 34-2018-00240703-CU-OE-GDS (Cal. Super. Ct., Sep. 14,
2018).
S.T.E.P. provides a wide range of support services to adults with
developmental disabilities.[BN]
Attorney for Plaintiffs:
Norman B Blumenthal, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037-3107
Telephone: (858) 551 1223
Facsimile: (858) 551 1232
E-mail: norm@bamlawca.com
SAFEWAY INC: Court Approves Rodman Settlement Distribution Plan
---------------------------------------------------------------
In the case, MICHAEL RODMAN, Plaintiff, v. SAFEWAY INC., Defendant,
Case No. 11-cv-03003-JST (N.D. Cal.), Judge Jon S. Tigar of the
U.S. District Court for the Northern District of California (i)
approved the distribution plan, and (ii) granted in part and denied
in part the Plaintiffs' motion for attorneys' fees, expenses, and
an incentive award.
Rodman brought te breach of contract case against the Defendant, on
behalf of himself and all other individuals similarly situated.
The Plaintiffs' claims arise from their purchase of groceries from
Safeway's website for home delivery. Safeway promised its online
customers that the prices charged for Safeway.com products would be
those charged in the physical store proximate to where the
groceries were delivered. In fact, Safeway charged more for online
purchases than it did for purchases from its brick-and-mortar
stores.
The Court certified the class of all persons in the United States
who registered to purchase groceries through Safeway.com at any
time prior to Nov. 15, 2011, and made one or more purchases subject
to the price markup implemented on or about April 12, 2010. There
are 297,822 class members. On Nov. 30, 2015, the Court entered
judgment in favor of the certified class. After pre- and
post-judgment interest, the total judgment amounts to
$42,321,355.45.
After more than six years of pre-trial, appellate, and
post-judgment litigation, the Plaintiffs and Safeway filed a joint
case management report regarding notice and judgment distribution.
The Court approved the notice plan, appointed Angeion Group as
Judgment Administrator, ordered Safeway to transfer the judgment
into a Judgment Distribution Fund account, and adjusted the notice,
briefing, and hearing schedule. Safeway deposited $42,321,355.45
into a Judgment Distribution Fund with Huntington National Bank on
Dec. 15, 2017.
The Plaintiffs then filed a motion for approval of the judgment
distribution plan and for attorneys' fees, expenses, and an
incentive award. In response to the attorneys' fees and costs
request, the Court ordered the class counsel to file with the Court
(1) an Excel spreadsheet detailing each timekeeper's hours per
month, (2) a document explaining, inter alia, why different
timekeepers with the same position charged different rates, and (3)
receipts for certain expenses.
Pursuant to the judgment distribution plan, the class members will
receive checks based on their pro rata share of the judgment
available for distribution and at least three reminders to cash
their checks within 90 days of the mailing date. Safeway agrees to
pay the judgment administration costs for this initial
distribution. If there are unclaimed funds, Angeion Group will
make a second distribution to the class members who cashed their
first checks. If there are unclaimed funds after that, Angeion
will make a third distribution cy pres to Meals on Wheels, a
national senior nutrition program.
Although the parties do not brief the issue, Judge Togar concludes
that the plan of distribution in this adjudicated class action is
subject to the same standards that apply to the allocation of a
class settlement fund, i.e., the distribution plan must be `fair,
reasonable and adequate. A plan of allocation that reimburses the
class members based on the type and extent of their injuries is
generally reasonable. The proposed plan of distribution meets this
goal.
The class counsel seeks 35% of the common fund, or $14,812,474.41,
for all attorneys' fees and unreimbursed expenses. However, the
Judge calculates trial attorneys' fees, appellate attorneys' fees,
and expenses separately as different legal considerations govern
each award. He overrules the various objections and grants the
motion in part as it applies to trial attorneys' fees. He will
award the class counsel 28% of the common fund for trial attorneys'
fees. He denies the class counsel's request of less than 1% of the
common fund, or $204,895.60, in appellate attorneys' fees as it
applies to appellate attorneys' fees.
The class counsel seeks less than 1% of the common fund,
$296,441.53, in unreimbursed expenses. The Judge finds that the
records support the conclusion that counsel incurred unreimbursed
expenses of $296,441.53. These expenses were incurred in
connection with filing fees, researching, obtaining transcripts,
consulting with experts, copying, mailing, traveling, and
technology. These expenses were reasonable considering the
complexity and duration of the case. Because these expenses are of
the type normally charged to a paying client, he will grant the
motion as it applies to unreimbursed expenses.
Finally, the Plaintiffs request a $10,000 incentive award for
Plaintiff Michael Rodman. The Judge will deny the motion as it
applies to the incentive award and overrules Helfand's objection
requesting more detailed information. Instead, he will award
Rodman a $5,000 incentive award.
For these reasons, Judge Tigar (i) granted approval of the
distribution plan; and (ii) granted in part and denied in part the
Plaintiffs' motion for attorneys' fees, expenses, and an incentive
award. The Plaintiffs' counsel will receive 28% of the common fund
for trial attorneys' fees and an additional $296,441.53 from the
common fund for unreimbursed expenses. Additionally, Plaintiff
Rodman will receive an incentive award of $5,000.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/VXItzF from Leagle.com.
Michael Rodman, Plaintiff, represented by James C. Shah --
jshah@sfmslaw.com -- Kolin Tang -- ktang@sfmslaw.com -- Scott Rhead
Shepherd -- at Shepherd, Finkelman, Miller & Shah, LLP; Steven Alan
Schwartz -- SteveSchwartz@chimicles.com -- Timothy Newlyn Mathews
-- TimothyMathews@chimicles.com -- at Chimicles and Tikellis, LLP.
Safeway Inc., Defendant, represented by Scott D. Baker --
sbaker@reedsmith.com -- Adaline J. Hilgard --
ahilgard@reedsmith.com -- Christine Marie Morgan --
cmorgan@reedsmith.com -- James A. Daire -- jdaire@reedsmith.com --
Jonah Dylan Mitchell -- jmitchell@reedsmith.com -- at Reed Smith
LLP.
Steven Helfand, Objector, pro se.
SANFORD LP: Kilpatrick Townsend Discusses Class Action Ruling
-------------------------------------------------------------
James Bogan III, Esq. -- jbogan@kilpatricktownsend.com -- of
Kilpatrick Townsend & Stockton LLP, in an article for JDSupra,
wrote that creative legal theories are easier to allege than prove.
And a putative class representative does not always make the best
deponent, especially when it comes to substantiating the key
allegations in an unfair and deceptive trade practice case. A
recent decision denying class certification by the Central District
of California, Spacone v. Sanford, L.P., Case No.:
2:17-CV-02419-AB-MRW, 2018 WL 4139057 (C.D. Cal. Aug. 9, 2018),
shows how contradictory and ultimately unreliable testimony by a
class representative can be used by a class defendant to secure the
denial of class certification.
In Spacone, the class representative purchased a two gram package
of Krazy Glue from a hardware store. The packaging featured Krazy
Glue's "Stay Fresh Container," a relatively large opaque plastic
cylinder housing a tube containing two grams of Krazy Glue
cyanoacrylate adhesive. Spacone claimed that he reasonably relied
on the packaging when he purchased Krazy Glue, and that he was led
to believe the package contained more glue than it actually did.
Spacone asserted "nonfunctional slack-fill" claims against Sanford,
claiming that the space between the interior of the Stay Fresh
Container and the inner Krazy Glue tube constituted nonfunctional
slack fill, in violation of California's Fair Packaging and
Labeling Act, Cal. Bus. & Prof. C. § 12606(b), which defines
"slack fill" as "the difference between the actual capacity of a
container and the volume of product contained therein," and which
defines "nonfunctional slack fill" as "the empty space in a package
that is filled to substantially less than its capacity for reasons
other than any one or more of" fifteen specified justifications for
slack fill.
Spacone's principal claims were claims under California's (1)
Consumers Legal Remedies Act ("CLRA"), Cal. Bus. & Prof. Code §§
1750–1782; (2) False Advertising Law ("FAL"), Cal. Bus. & Prof.
Code §§ 17500–17535; and (3) Unfair Competition Law ("UCL"),
Cal. Bus. & Prof. Code §§ 17200–17204. He sought the
certification of a class of "[a]ll individuals who purchased one or
more [Krazy Glue] Stay Fresh Container Products in California from
January 31, 2013, until the date of trial." 2018 WL 4139057, at
*1.
The district court's order first addressed Spacone's legal
standing. To establish standing under the CLRA, FAL, and UCL,
Spacone must show "that he lost money or property (economic injury)
because Sanford misrepresented their Krazy Glue. Spacone must
further establish that but for this misrepresentation, he would not
have bought Krazy Glue, at least not at the price it was offered."
2018 WL 4139057, at *3.
The district court focused on Spacone's deposition testimony.
Spacone testified that he purchased the Krazy Glue not once but
twice, so he could finish a job repairing the trim of an
automobile. According to Spacone, he did not overpay for the Krazy
Glue, and he denied he was "ripped off." His biggest problem was
that, had he known how much product was actually in the package, he
would have purchased two Krazy Glue packages instead of one. As it
turned out, the single package he purchased did not provide enough
glue for him to finish his automotive trim job. Instead, he had to
get in his car, return to the hardware store, and buy a second
package, all the while enduring California traffic.
The problem with this testimony, according to the district court,
is that it showed that Spacone suffered the mere inconvenience of
having to drive to the store to make a second purchase. This
testimony did not substantiate the economic injury necessary to
confer standing. 2018 WL 4139057, at *4-*5.
But there was also conflicting testimony. Spacone had submitted a
written declaration wherein he stated he "lost money or property"
because he did not "receive the amount of glue [he] expected to
receive based on the visible packaging of the All Purpose Krazy
Glue." 2018 WL 4139057, at *5. The district court disregarded this
testimony, however, relying on the "sham affidavit rule," which
holds that "[t]he general rule in the Ninth Circuit is that a party
cannot create an issue of fact by an affidavit contradicting his
prior deposition testimony." Id. (quoting Kennedy v. Allied Mut.
Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). Also, there was
"muddled testimony" near the very end of his deposition, to the
effect that Sanford had profited from its deceptive packaging and
– to the extent the testimony indicated that Spacone had suffered
some kind of economic injury – conflicted with his prior
deposition testimony. The district court disregarded this
testimony, as well, finding "the sham affidavit doctrine to be
instructive, if not analogous." Id.
Evaluating all of this testimony, the court ruled that Spacone had
not demonstrated that he lost money or property because of the
alleged misrepresentations, and therefore lacked statutory standing
to bring his claims.
The same testimonial issues doomed class certification in terms of
the typicality and adequacy requirements. Typicality was not
satisfied, because Spacone lacked standing and his Krazy Glue
purchasing experience was not typical of the class claims.
Perhaps more importantly, Spacone was not an adequate class
representative, because his testimony was not adequate. The
district court noted: "The honesty and credibility of a class
representative is a relevant consideration when performing the
adequacy inquiry because an untrustworthy plaintiff could reduce
the likelihood of prevailing on the class claims." 2018 WL 4139057,
at *9 (quoting Harris v. Vector Marketing Corp., 753 F. Supp. 2d
996, 1015 (N.D. Cal. 2010) (citations omitted)).
On this point, the court concluded: "Here, the Court does not
question class representative Mr. Spacone's overall character.
However, the Court finds that Mr. Spacone's questionable standing
assertion impedes his ability to adequately represent his proposed
class. As noted above, the Court finds that Spacone's declaration
and unclear testimony at the end of his deposition are insufficient
to overcome his repeated admissions that effectively disprove
standing. But even were the Court to find this ostensible conflict
of evidence sufficient to let the standing issue go forward, his
credibility as to his claimed injury jeopardizes the class's
ability to prevail. Spacone's repeated and unambiguous denials at
deposition to the effect that he did not take issue with the price
of the Krazy Glue product he purchased, that his injury was
inconvenience, and that had he known how much adhesive the [Stay
Fresh Container] actually contained, the only thing he would have
done differently is purchase two packages in a single trip at a
minimum call into question any subsequent assertions that he lost
money or property because of the alleged misrepresentations – the
fundamental elements of standing that Spacone must prove. Because
there are at least serious questions going to Spacone's standing
and his credibility to claim an economic injury but-for the alleged
misrepresentation, the Court considers him as having interests
antagonistic to the class and he is not reasonably well-situated to
pursue the interests of the class." 2018 WL 4139057, at *10. [GN]
SCHENKER INC: Fernandez Suit Moved to E.D. California
-----------------------------------------------------
The class action lawsuit titled Armando Fernandez, an individual,
on behalf of himself and all others similarly situated, the
Plaintiff, v. Schenker, Inc., doing business as: DB Shenker, a New
York Corporation, and DOES 1 through 100, the Defendants, Case No.
RIC1813666, was removed from the Riverside County Superior Court,
to the U.S. District Court for the District Of California (Eastern
Division - Riverside) on Sept. 11, 2018. The California Eastern
District Court Clerk assigned Case No. 5:18-cv-01931-JLS-KK to the
proceeding. The case is assigned to the Hon. Judge Josephine L.
Staton.
Schenker, Inc. provides transportation and logistics services by
air, sea, and land in North America and internationally.[BN]
The Plaintiff is represented by:
Fletcher W H Schmidt, Esq.
HAINES LAW GROUP APC
222 North Sepulveda Boulevard Suite 1550
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: fschmidt@haineslawgroup.com
- and -
Paul Keith Haines, Esq.
Tuvia Korobkin, Esq.
HAINES LAW GROUP APC
222 North Sepulveda Boulevard Suite 1550
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslawgroup.com
tkorobkin@haineslawgroup.com
Attorneys for Schenker, Inc.:
Everett Clifton Martin IV, Esq.
Michelle Rapoport, Esq.
Hovannes G Nalbandyan, Esq.
LITTLER MENDELSON PC
633 West 5th Street 63rd Floor
Los Angeles, CA 90071
Telephone: (213) 443 4300
Facsimile: (213) 443 4299
E-mail: cmartin@littler.com
mrapoport@littler.com
hnalbandyan@littler.com
SCOTTS MIRACLE-GRO: Morning Song Bird Food Lawsuit Still Pending
----------------------------------------------------------------
The Scotts Miracle-Gro Company said in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that the Company and its Chief
Executive Officer dispute the plaintiffs' assertions and intend to
vigorously defend the consolidated class action suit entitled, In
re Morning Song Bird Food Litigation, Lead Case No.
3:12-cv-01592-JAH-AGS.
In connection with the sale of wild bird food products that were
the subject of a voluntary recall in 2008, the Company, along with
its Chief Executive Officer, have been named as defendants in four
actions filed on and after June 27, 2012, which have been
consolidated, and, on March 31, 2017, certified as a class action
in the United States District Court for the Southern District of
California as In re Morning Song Bird Food Litigation, Lead Case
No. 3:12-cv-01592-JAH-AGS.
The plaintiffs allege various statutory and common law claims
associated with the Company's sale of wild bird food products and a
plea agreement entered into in previously pending government
proceedings associated with such sales. The plaintiffs allege,
among other things, a class action on behalf of all persons and
entities in the United States who purchased certain bird food
products.
The plaintiffs assert: (i) hundreds of millions of dollars in
monetary damages (actual, compensatory, consequential, and
restitution); (ii) punitive and treble damages; (iii) injunctive
and declaratory relief; (iv) pre-judgment and post-judgment
interest; and (v) costs and attorneys' fees.
The Company and its Chief Executive Officer dispute the plaintiffs'
assertions and intend to vigorously defend the consolidated action.
As a result of recent developments, the Company recognized a
pre-tax charge of US$65.0 million for a probable loss related to
this matter for the three and nine months ended June 30, 2018 in
the "Income (loss) from discontinued operations, net of tax" line
in the Condensed Consolidated Statements of Operations. There can
be no assurance that future developments with respect to this
action, whether as a result of an adverse outcome or as a result of
significant defense costs, will not have a material adverse effect
on the Company's financial condition, results of operations or cash
flows.
The Scotts Miracle-Gro Company is a manufacturer and marketer of
branded consumer lawn and garden products. The company is based in
Marysville, Ohio.
SCOTTS MIRACLE-GRO: Preliminary EZ Seed Suit Settlement Underway
----------------------------------------------------------------
The Scotts Miracle-Gro Company disclosed in its Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2018, that preliminary settlement of the case
captioned as In re Scotts EZ Seed Litigation will not be finalized
until after the court approves the settlement and a claims process
determines the payments to be provided to the class members.
The Company has been named as a defendant in In re Scotts EZ Seed
Litigation, Case No. 12-cv-4727 (VB), a New York and California
class action lawsuit filed August 9, 2012 in the United States
District Court for the Southern District of New York that asserts
claims under false advertising and other legal theories based on a
marketing statement on the Company's EZ Seed grass seed product
from 2009 to 2012.
The plaintiffs seek, on behalf of themselves and purported class
members, various forms of monetary and non-monetary relief,
including statutory damages that they contend could amount to
hundreds of millions of dollars.
The Company has defended the action vigorously, and disputes the
plaintiffs' claims and theories, including the recoverability of
statutory damages. In 2017, the Court eliminated certain claims,
narrowed the case in certain respects, and permitted the case to
continue proceeding as a class action. On August 7, 2017, the
Court requested briefs on the Company's request for interlocutory
review of issues relating to the recoverability of statutory
damages in a class action by the United States Court of Appeals for
the Second Circuit and, on August 31, 2017, approved that request.
On January 8, 2018, however, the Second Circuit denied the
interlocutory appeal request. The parties engaged in mediation on
April 9, 2018 and agreed in principle to a preliminary settlement
of the outstanding claims on April 10, 2018.
The preliminary settlement would require the Company to pay certain
attorneys' and administrative fees and provide certain payments to
the class members. The preliminary settlement will not be
finalized until after the court approves the settlement and a
claims process determines the payments to be provided to the class
members.
During the second quarter of fiscal 2018, the Company recognized a
charge of US$10.2 million for a probable loss related to this
matter within the "Impairment, restructuring and other" line in the
Condensed Consolidated Statements of Operations.
The resolution of the claims process may result in additional
losses in excess of the amount accrued, however, the Company does
not believe a reasonably possible loss in excess of the amount
accrued would be material to, nor have a material adverse effect
on, the Company's financial condition, results of operations or
cash flows.
The Scotts Miracle-Gro Company is a manufacturer and marketer of
branded consumer lawn and garden products. The company is based in
Marysville, Ohio.
SECURIAN FINANCIAL: Faces Harrison Class Suit in N.D. Ohio
----------------------------------------------------------
A class action lawsuit has been filed against Securian Financial
Group et al. The case is styled as Brian Harrison individually and
on behalf of all others similarly situated, Plaintiff v. Securian
Financial Group, Minnesota Life Insurance Company, Defendants, Case
No. 1:18-cv-02204-PAG (N.D. Ohio., Sept. 25, 2018).
The nature of suit is stated as Other-Diversity Contract.
Securian Financial Group, Inc. provides financial security for
individuals and businesses in the form of insurance, retirement
plans, and investments. Its products and services for individuals
include annuities, life, accident, and illness insurance; financial
strategies, investment services, and trust services; and solutions
for businesses owners, financial institution, group insurance, and
retirement plans, as well as key person life insurance, business
estate planning, business planning, business continuation, and
executive bonus plan services. In addition, it offers financial
advisory services. The company serves its customers through
associates and representatives in Minnesota.
Minnesota Life Insurance Company, together with its subsidiaries,
provides life insurance and other financial products and services
to individuals and families in the United States. It offers
individual financial security, financial institution group, group
insurance, retirement plans, and asset management services. It
offers its products and services through financial advisors,
employers, and financial institutions. The company was founded in
1880 and is headquartered in Saint Paul, Minnesota. Minnesota Life
Insurance Company is a subsidiary of Securian Financial Group,
Inc.[BN]
The Plaintiff is represented by:
Lydia M. Floyd, Esq.
Peiffer Rosca Wolf Abdullah Carr & Kane
1422 Euclid Avenue, Ste. 1610
Cleveland, OH 44115
Phone: (216) 589-9280
Fax: (888) 411-0038
Email: lfloyd@prwlegal.com
- and -
James P. Booker. Esq.
Peiffer Rosca Wolf Abdullah Carr & Kane
1422 Euclid Avenue, Ste. 1610
Cleveland, OH 44115
Phone: (216) 570-0097
Fax: (888) 411-0038
Email: jbooker@prwlegal.com
SINCLAIR BROADCAST: Faces Antitrust Class Suits over TV Ad Pricing
------------------------------------------------------------------
Sinclair Broadcast Group, Inc. is facing three putative class
action lawsuits related to alleged price fixing of TV commercial
prices, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
As of August 7, 2018, the Company is aware of three putative class
action lawsuits filed in United States District Court against the
Company, Tribune Media Company, Tribune Broadcasting Company, LLC
and other defendants, including some that are unnamed. The
lawsuits allege that the defendants conspired to fix prices for
commercials to be aired on broadcast television stations throughout
the United States, in violation of the Sherman Antitrust Act. The
lawsuits seek damages, attorney's fees, costs and interest, as well
as enjoinment from adopting practices or plans which would restrain
competition in a similar manner as alleged in the lawsuits.
Sinclair Broadcast said, "The Company believes the lawsuits may
have been related to media reports of a Civil Investigative Demand
(CID) the Company received from the Department of Justice earlier
this year, which regarded an investigation to determine whether
there had been a violation of the Sherman Act by sharing of pace
data within the industry. The CID indicated that it was issued in
connection with the Company's acquisition of Tribune. The Company
believes these class action lawsuits are without merit and intends
to vigorously defend against the allegations."
Sinclair Broadcast Group, Inc. operates as a television
broadcasting company in the United States. It owns or provides
various programming, operating, or sales services to television
stations. The Company was founded in 1986 and is headquartered in
Hunt Valley, Maryland.
SIZZLING PLATTER: Fails to Pay Minimum & OT Wages, Berry Says
-------------------------------------------------------------
SHAYNAY BERRY, individually and on behalf of all similarly situated
employees of Defendants in the State of California, the Plaintiff,
v. SIZZLING PLATTER, LLC; and DOES 1 THROUGH 50, inclusive, the
Defendant, Case No. 37-2018-00046647-CU-OE-CTL (Cal. Super. Ct.,
Sept. 14, 2018), seeks to recover minimum and overtime wages under
the California Labor Code.
According to the complaint, the Plaintiff took orders, worked the
cash register, cleaned the grease fryers, stocked the restaurant,
picked up supplies from the Defendants' other locations, answered
phone calls, and supervised employees. She was paid $11 an hour and
typically worked 35 hours per week. The Plaintiff was typically
scheduled to work Monday through Friday, from about 11:00 a.m. to
6:00 p.m. Towards the end of her employment, the Plaintiff was
scheduled fewer hours and typically worked between 12-15 hours two
to three times per week.
At no time during the Plaintiff's employment was she primarily
engaged in administrative duties, and the majority of the work she
performed was non-managerial in nature. Furthermore, the Plaintiff
was not primarily engaged in work directly related to management
policies or general business operations of the Defendants. The
Plaintiff was not permitted to exercise discretion or independent
judgment and could not hire or fire employees. The Plaintiff was a
non-exempt employee and should have received the protections
afforded by the California Labor Code and the applicable IWC Wage
Order. The Defendants denied the Plaintiff and, on information and
belief, other similarly situated employees certain rights afforded
to them under the California Labor Code and the IWC Wage Order.
Specifically, the Defendants did not properly compensate the
Plaintiff and other similarly situated employees for all hours
worked, failed to provide compliant meal and rest periods, failed
to maintain accurate records, failed to provide accurate itemized
wage statements and written notice of sick leave, failed to
reimburse.
Sizzling Platter owns and manages fast casual restaurants in the
United States and internationally. Its restaurants provide pizzas,
donuts and coffee, burgers and brews, steak, seafood and
salads.[BN]
The Plaintiff is represented by:
Graham S.P. Hollis, Esq.
Vilmarie Cordero, Esq.
Nathan Reese, Esq.
GRAHAMHOLLIS APC
3555 Fifth Avenue, Suite 200
San Diego, CA 92103
Telephone: 619.692.0800
Facsimile: 619.692.0822
E-mail: ghollis@grahamhollis.com
vcordero@grahamhollis.com
nreese@grahamhollis.com
SKECHERS USA: Saxena White Files Securities Class Action
--------------------------------------------------------
Saxena White P.A. on Sept. 4 disclosed that it has filed a
securities fraud class action lawsuit in the United States District
Court for the Southern District of New York against Skechers USA,
Inc. ("Skechers" or the "Company") (NYSE: SKX) on behalf of
investors who purchased or otherwise acquired the common stock of
the Company between October 20, 2017 and July 19, 2018, inclusive
(the "Class Period").
Skechers is a global footwear company that designs and markets
branded footwear for men, women and children. The Company sells
its footwear in department, specialty and independent stores, as
well as through more than 2,600 retail stores and its online
websites. Beyond the United States, Skechers product is available
in more than 170 countries and territories through an international
network of subsidiaries.
The Complaint asserts claims for violations of the Securities
Exchange Act of 1934 and alleges that, throughout the Class Period,
Defendants made false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, prospects and financial health.
Specifically, Defendants failed to disclose that: (1) Skechers
lacked the operational infrastructure to handle demand and sustain
true sales growth in its international markets; (2) Skechers was
relying on expensive, third-party operational solutions to drive
its international sales growth; (3) Skechers' expenses would
outgrow sales for the foreseeable future; (4) Skechers'
international sales growth was not sustainable without such
outgrown expenses; and (5) as a result of the foregoing,
Defendants' statements about Skechers' business, operations, and
prospects, were materially false and/or misleading and/or lacked a
reasonable basis.
You may obtain a copy of the Complaint and join the class action at
www.saxenawhite.com.
If you purchased Skechers shares between October 20, 2017 and July
19, 2018, you may contact Lester Hooker (lhooker@saxenawhite.com)
at Saxena White P.A. to discuss your rights and interests.
If you purchased Skechers stock during the Class Period of October
20, 2017 and July 19, 2018 and wish to apply to be the lead
plaintiff in this action, a motion on your behalf must be filed
with the Court by no later than November 5, 2018. You may contact
Saxena White P.A. to discuss your rights regarding the appointment
of lead plaintiff and your interest in the class action. Please
note that you may also retain counsel of your choice and need not
take any action at this time to be a class member.
With offices in Florida, New York, and Massachusetts, Saxena White
P.A. -- http://www.saxenawhite.com-- concentrates its practice on
prosecuting securities fraud and complex class actions on behalf of
institutions and individuals. Currently serving as lead counsel in
numerous securities fraud class actions nationwide, the firm has
recovered hundreds of millions of dollars on behalf of injured
investors and is active in major litigation pending in federal and
state courts throughout the United States. [GN]
SOLARCITY CORP: Can Partly Compel Arbitration in Whitworth Suit
---------------------------------------------------------------
In the case, RAVI WHITWORTH, ET AL., Plaintiffs, v. SOLARCITY
CORP., et al., Defendants, Case No.16-cv-01540-JSC (N.D. Cal.),
Magistrate Judge Jacqueline Scott Corley of the U.S. District Court
for the Northern Distirict of California (i) granted in part and
denied in part SolarCity's motion to compel arbitration; and (ii)
granted its motion for a stay pending arbitration.
Whitworth brought the putative class and collective action against
his former employer, the Defendant. He later amended his complaint
to include the claims of four additional named Plaintiffs. The
Court denied SolarCity's motion to compel arbitration given the
Ninth Circuit's decision in Morris v. Ernst & Young, holding that
employment arbitration agreements containing class action waivers
are invalid and unenforceable under the National Labor Relations
Act ("NLRA"). On May 21, 2018, the Supreme Court reversed the
Ninth Circuit's decision in Morris.
Following the Supreme Court's decision in Epic Sys. Corp. v. Lewis,
the Court held a Status Conference to discuss how to proceed in the
action. As a threshold matter, the parties agree that three of the
five Plaintiffs -- Whitworth, Carranza, and Frias -- have valid
arbitration agreements and that these agreements contain
representative action waivers which preclude them from pursuing
representative actions. The parties also agree that Plaintiffs
Whitworth, Carranza, and Frias cannot bring class claims and that
their individual non-PAGA claims must be arbitrated. The parties
cannot agree, however, about whether Plaintiffs Farrohki and
Whitford have valid arbitration agreements or how the Court should
handle Plaintiffs Whitworth, Carranza, and Frias's PAGA claims.
The Court thus directed the parties to provide supplemental
briefing regarding three issues. First, whether Epic overruled
Sakkab v. Luxottica Retail N. Am., Inc., such that Plaintiffs
Whitworth, Carranza, and Frias's PAGA claims must be compelled to
arbitration along with their other claims. Second, to address
SolarCity's argument that the Court must compel the Plaintiffs to
arbitrate their PAGA claims first. Finally, whether the Court must
compel Plaintiffs Farrohki and Whitford to arbitrate their
individual claims.
The parties have submitted supplemental briefing regarding the
motion to compel arbitration following Epic.
Having reviewed the parties' original and supplemental briefs, and
having had the benefit of oral argument on Aug. 9, 2018, Magistrate
Judge (i) denied the motion to compel arbitration of Plaintiffs
Whitworth, Carranza, and Frias' PAGA claims, but granted the motion
to compel arbitration of their individual claims; and (ii) granted
the motion to compel as to Plaintiffs Farrohki and Whitford's
individual claims.
Among other things, she finds that Sakkab is not clearly
irreconcilable with Epic; rather, there remains a meaningful basis
for the Sakkab rule. Therefore, in the absence of Ninth Circuit
authority stating otherwise, she must follow Sakkab.
SolarCity insists that even if the Court is not persuaded that Epic
implicitly overruled Sakkab, the Court should nonetheless compel
arbitration of the PAGA claims to the extent that the claims are
predicated on California Labor Code section 558. SolarCity's
argument is based on an unpublished Ninth Circuit Court of Appeals
decision favoring one of two diverging California Court of Appeals
cases on this question: Mandviwala v. Five Star Quality Care, Inc.,
discussing Esparza v. KS Indus., L.P.,; Lawson v. ZB, N.A., as
modified.
The Magistrate respectfully disagrees and concludes that the
California Supreme Court is most likely to follow Lawson for
several reasons. First, sparza v. KS Indus., L.P.'s conclusion
that a claim under section 558 is a private dispute because, among
other things, it could be pursued by Employee in his own right, is
unsupported, and as Lawson explains, likely wrong.
The Magistrate also also granted SolarCity's motion to stay
proceedings pending arbitration. While the PAGA claims are not
identical to the claims compelled to arbitration (overtime, minimum
wage, rest period, wages on termination, wage statements,
indemnification, and unfair business practices claims), the factual
allegations underlying the claims are the same. Further, the
Plaintiffs' PAGA claims are derivative in nature of their
substantive claims that will proceed to arbitration, and the
outcome of the nonarbitrable PAGA claims will depend upon the
arbitrator's decision. While a stay is not mandatory, the
Magistrate in her discretion granted SolarCity's request to stay
the PAGA claims pending arbitration of the individual claims. A
stay is most consistent with Rule 1 of the Federal Rules of Civil
Procedure and these Plaintiffs' agreement to arbitrate their
individual claims.
A full-text copy of the Court's Aug. 21, 2018 Order is available at
https://is.gd/GR7M6F from Leagle.com.
Ravi Whitworth, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Christina Ann Humphrey --
christina@humphreyrist.com -- Humphrey & Rist LLP, Jahan C. Sagafi
-- jsagafi@outtengolden.com -- Outten & Golden LLP & Robert Neil
Fisher -- rfisher@outtengolden.com -- Outten and Golden LLP.
Greg Carranza, Javier Frias & Michael Whitford, Plaintiffs,
represented by Christina Ann Humphrey, Humphrey & Rist LLP, Jahan
C. Sagafi, Outten & Golden LLP & Thomas Anthony Rist, Humphrey and
Rist, LLP.
SolarCity Corp., Defendant, represented by Gal Gressel --
ggressel@littler.com -- Lisa Lin Garcia -- llgarcia@littler.com --
Littler Mendelson & Richard Howard Rahm -- rrahm@littler.com --
Littler Mendelson.
Cris Farrohki, Defendant, represented by Jahan C. Sagafi , Outten &
Golden LLP, Christina Ann Humphrey, Humphrey & Rist LLP, Robert
Neil Fisher, Outten and Golden LLP & Thomas Anthony Rist, Humphrey
and Rist, LLP.
SOLOMON & SOLOMON: Fondacaro FDCPA Suit Dismissed
-------------------------------------------------
Judge Brenda K. Sannes of the U.S. District Court for the Northern
District of New York granted the Defendants' motion to dismiss the
case, VICTOR FONDACARO, on behalf of himself and all others
similarly situated, Plaintiff, v. SOLOMON & SOLOMON, P.C. and JULIE
B. SOLOMON, Defendants, Case No. 1:17-cv-01053 (BKS/DJS) (N.D.
N.Y.), for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Fondacaro brings the putative class action against Defendants S&S
and Julie B. Solomon, alleging that they engaged in unlawful credit
collection practices in violation of the Fair Debt Collection
Practices Act ("FDCPA"), when they sent collection letters that
failed to inform purported debtors that S&S is a law firm. The
Plaintiff seeks statutory damages, as well as attorneys' fees and
costs, on behalf of himself and a proposed class of persons with
New York addresses who, within one year before the Complaint's
filing, received a collection communication from S&S that was
identical in content and form to the collection communication sent
to the Plaintiff (except for the Plaintiff-specific information).
S&S is a law firm based in Albany, New York, which offers debt
collection services to creditors. Defendant Solomon is S&S's
president. St. Mary's Healthcare retained S&S to collect on a
$78.40 debt purportedly owed by the Plaintiff for medical services
St. Mary's Healthcare provided him. S&S sent the Plaintiff a
collection letter, dated Nov. 16, 2016, which included the
requisite validation notice informing the Plaintiff of his right,
within 30 days of receipt of the validation notice, to dispute the
validity of the debt and request in writing that S&S obtain
verification of the debt. The letter, however, did not reveal that
S&S is an operational law firm.
The Complaint states that S&S is well aware that a consumer is less
likely to respond to a communication from a law firm than to a
communication from a collection agency. Further, according to the
Complaint, a consumer dispute letter or request-for-verification
letter typically contains personal information about a consumer,
and a consumer willing to disclose personal information to a
collection agency may not wish to disclose personal information to
a law firm.
Based on these allegations, the Plaintiff asserts that the
Defendants' failure to fully disclose that the Defendant S&S is a
law firm violated the FDCPA. More specifically, the Plaintiff
claims that the Defendants violated: (i) 15 U.S.C. § 1692e by
using false, deceptive and misleading debt collection means during
attempts to collect alleged consumer debts and same are material in
that the false representations in the letter effect the decision
and/or ability of a consumer to pay and/or challenge an alleged
debt; (ii) Section 1692e(2)(A) by misrepresenting the character and
legal status of alleged consumer debts; and (iii) Section 1692f by
engaging in unfair debt collection practices.
The Defendants move to dismiss the Complaint for failure to state a
claim under Section 1692e.
Judge Sannes agrees with the Defendants that the Complaint fails to
state a claim under Section 1692e. First, S&S' letter is not a
communication that is misleading or deceptive as to the identity or
involvement of the debt collector. Second, the Plaintiff does not
set forth any factual allegations to support his argument that the
letter's silence as to the nature of S&S' business is material.
Third, the Plaintiff's theory appears to be internally
contradictory. If the Court were to credit the Plaintiff's
hypothesis that consumers do not wish to communicate with law firm
debt collectors, then compelling a debt collector to disclose that
it is a law firm would have the perverse effect of dissuading a
consumer from responding to or disputing debt collection efforts.
Fourth, the Plaintiff points to no authority requiring a debt
collector to affirmatively disclose that it is a law firm.
Since the Complaint does not contain any allegations that the
Defendants misstated the character, amount, or legal status of the
debt, she will dismisses the Section 1692e(2)(A) claim. The
Plaintiff does not respond to the argument, other than to state
that deception has occurred based upon the omission of the material
fact that the Defendant S&S is a law firm.
Finally, the Plaintiff concedes that the failure to reveal that the
Defendant S&S is not a law firm cannot be described as
`unconscionable, but he asserts that it is certainly unfair to the
consumer who is alleged to be in debt to one of the Defendant S&S'
clients. The Plaintiff, however, does not explain why
nondisclosure of a debt collector's status as a law firm is unfair
to consumers. To the extent that the Plaintiff relies on the same
arguments advanced in support of his Section 1692e claim, these
arguments fail for the reasons discussed. Accordingly, she will
dismiss the Plaintiff's Section 1692f claim.
For these reasons, Judge Sannes granted the Defendant's motion to
dismiss the Complaint for failure to state a claim, and dismissed
with prejudice the Complaint in its entirety.
A full-text copy of the Court's April 24, 2018 Memorandum-Decision
and Order is available at https://is.gd/5mVkKy from Leagle.com.
Victor Fondacaro, on behalf of himself and all others similarly
situated, Plaintiff, represented by Robert L. Arleo --
robertarleo@gmail.com -- Office of Robert L. Arleo.
Solomon & Solomon, P.C. & Julie B. Solomon, Defendants, represented
by Joseph L. Francoeur -- joseph.francoeur@wilsonelser.com --
Wilson, Elser Law Firm & Michael S. Tripicco, Wilson, Elser Law
Firm.
SOUTHERN COMPANY: Class Suit Remanded to Georgia Trial Court
------------------------------------------------------------
The Southern Company's subsidiary, Georgia Power Company, continues
to defend itself in a purported class action lawsuit pending in the
Superior Court of Fulton County, Georgia, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2018.
In 2011, plaintiffs filed a putative class action against Georgia
Power in the Superior Court of Fulton County, Georgia, alleging
that Georgia Power's collection in rates of municipal franchise
fees (all of which are remitted to municipalities) exceeded the
amounts allowed in orders of the Georgia PSC and alleging certain
state tort law claims.
In 2016, the Georgia Court of Appeals reversed the trial court's
previous dismissal of the case and remanded the case to the trial
court. Georgia Power filed a petition for writ of certiorari with
the Georgia Supreme Court, which was granted in August 2017.
On June 18, 2018, the Georgia Supreme Court affirmed the judgment
of the Georgia Court of Appeals and the case has been remanded to
the trial court for further proceedings.
Southern Company said, "Georgia Power believes the plaintiffs'
claims have no merit and intends to vigorously defend itself in
this matter. The amount of any possible losses cannot be
calculated at this time because, among other factors, it is unknown
whether any class will ultimately be certified; the scope of such a
class, if certified; and whether any losses would be subject to
recovery from any municipalities. The ultimate outcome of this
matter cannot be determined at this time."
The Southern Company and its subsidiaries engage in the generation,
transmission, and distribution of electricity. The Company also
constructs, acquires, owns, and manages power generation assets,
including renewable energy projects; sells electricity in the
wholesale market; and distributes natural gas in seven states, as
well as provides gas marketing services, wholesale gas services,
and gas midstream operations. The Southern Company was founded in
1945 and is headquartered in Atlanta, Georgia.
SOUTHERN COMPANY: Unit Records $11M Expense for Class Settlement
----------------------------------------------------------------
The Southern Company disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2018, that subsidiary Southern Company Gas has
recorded an US$11 million charge, which is reflected in other
operations and maintenance expenses on the statements of income,
related to the settlement of the lawsuits involving a former
subsidiary.
Nicor Energy Services Company, doing business as Pivotal Home
Solutions, formerly a wholly-owned subsidiary of Southern Company
Gas, was a defendant in a putative class action initially filed in
2017 in the state court in Indiana. The plaintiffs purported to
represent a class of the customers who purchased products from
Nicor Energy Services Company and alleged that the marketing, sale,
and billing of the products violated the Indiana Consumer Fraud and
Deceptive Business Practices Act, constituting common law fraud and
resulting in unjust enrichment of these entities.
In 2018, Nicor Energy Services Company was named in a second class
action filed in the state court of Ohio asserting nearly identical
allegations and legal claims. The plaintiffs sought, on behalf of
the classes they purported to represent, actual and punitive
damages, interest costs, attorney fees, and injunctive relief.
To facilitate the sale of Pivotal Home Solutions, Southern Company
Gas retained most of the financial responsibility for these
lawsuits following the completion of the sale.
On June 12, 2018, the parties settled these claims and Southern
Company Gas recorded an US$11 million charge, which is reflected in
other operations and maintenance expenses on the statements of
income.
The Southern Company and its subsidiaries engage in the generation,
transmission, and distribution of electricity. The Company also
constructs, acquires, owns, and manages power generation assets,
including renewable energy projects; sells electricity in the
wholesale market; and distributes natural gas in seven states, as
well as provides gas marketing services, wholesale gas services,
and gas midstream operations. The Southern Company was founded in
1945 and is headquartered in Atlanta, Georgia.
SOUTHERN GAS: Faces Class Action in California Over Methane Leak
----------------------------------------------------------------
Oil & Gas Technology reports that every business involved in the
oil and gas industry, including refining, processing and chemicals
manufacturing, should be investing in the latest gas detection
expertise or face the likelihood of major high court action.
That is the stark warning from Steve Billingham, CEO of Duvas
Technologies, who believes a current lawsuit in America will have
significant repercussions for the global petrochemical sector.
Following the leak of 100,000 metric tonnes of methane at Aliso
Canyon in California nearly three years ago, 9,000 residents are
now pressing a class-action lawsuit against Southern California Gas
Co., asking for up to $2.5 billion in damages.
According to reports, residents were not only exposed to harmful
methane gas, but also benzene, at levels 9,000 times higher than
that the state deems acceptable. The chemical is found in many
household products, even reaching the USA's top 20 list of most
widely-used substances -- with the same level of adoption across
Europe and the rest of the globe.
In the wake of the US law suit, Billingham explained: "The
important consideration is around the levels of Benzene in the
products or the atmosphere. Identifying 'safe levels' is not
simple. But getting it wrong can cause serious health issues -- and
potentially catastrophic class actions for corporations operating
in the gas exploration or chemical manufacturing sectors.
"Systems, such as the Duvas DV3000 analyser, are already being used
by companies across the petrochemicals industry to deliver
fast-response, accurate, real-time benzene data -- not just in a
leak crisis scenario, but offering a routine solution to detect
levels early. However, with the capability of monitoring for up to
13 additional species, its application can play a far wider part in
the global air quality market."
Until tighter legislative controls are introduced, the increasing
prevalence of benzene use within industrial applications means
millions of workers around the world are facing ill-health or early
death through over-exposure every year. While California's Bill 617
and cases such as Aliso Canyon are acting as catalysts to positive
change, responsible business should be taking action now to ensure
their monitoring and management of dangerous substances such as
benzene is under control. [GN]
SPOT INT'L: Perez Suit Seeks Unpaid Wages under Labor Code
----------------------------------------------------------
EDWIN PEREZ and CHRYSTIAN ALEJANDRO ORTEGA JIMENEZ, on behalf of
themselves and all others similarly situated, the Plaintiffs, v.
SPOT INTERNATIONAL, INC., a limited liability company; JOHN
BERNARD, an individual; and DOES 1 through 50, inclusive, the
Defendants, Case No. BC721323 (Cal. Super. Ct., Sept. 14, 2018),
seeks to recover unpaid wages under the California Labor Code.
According to the complaint, the Defendants operate, and at all
times during the relevant liability period, have done business as a
manufacturer and retailer of furniture in the County of Los
Angeles, with a location in Gardena, California. In their endeavor,
the Defendants employ personnel in California as hourly, Non-Exempt
Employees, as well as personnel in California who are paid on a
"piece rate" basis. This lawsuit challenges the Defendants' wage
and hour practices as they concern all Class Members.[BN]
The Plaintiffs are represented by:
William O. Kampf, Esq.
LAW OFFICE OF WILLIAM O. KAMPF
4014 Long Beach Boulevard, Suite 300
Long Beach, CA 90807
Telephone: (310) 948 0715
Facsimile: (310) 494 9481
SQUARE INC: Fails to Pay OT to Couriers, Cole Suit Alleges
----------------------------------------------------------
MERVYN COLE, individually and on behalf of all others similarly
situated, Plaintiff v. SQUARE, INC. D/B/A CAVIAR, Defendant, Case
No. BC719079 (Cal. Super., Los Angeles Cty., Aug. 24, 2018) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
MR. Cole was employed by the Defendant as courier.
Square, Inc. d/b/a Caviar provides on-demand take out food delivery
to customers at their homes and businesses through its mobile phone
application and website. The Company is based in San Francisco.
[BN]
The Plaintiff is represented by
Shannon Liss-Riordan, Esq.
Anne Kramer, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: sliss@llrlaw.com
akramer@llrlaw.com
STAMPS.COM INC: Preliminary Settlement Reached in Lopez Lawsuit
---------------------------------------------------------------
Stamps.com Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018, that it has entered into a preliminary settlement
that would resolve the putative class action complaint filed by
Juan Lopez and Nicholas Dixon.
The Company said, "On February 8, 2018, a putative class action
complaint was filed against us in a case entitled Juan Lopez and
Nicholas Dixon v. Stamps.com, Inc., Case No. 2:18-cv-01101, in the
United States District Court for the Central District of
California, Western Division, alleging wage and hour claims on
behalf of our current and former "non-exempt" hourly call center
employees. The complaint sought class certification, unspecified
damages, unpaid wages, penalties, restitution, interest, and
attorneys' fees and costs. On July 24, 2018, we entered into a
preliminary settlement that would resolve this matter for a
non-material payment to be distributed to the participating class
members. This preliminary settlement remains subject to court
approval."
Stamps.com Inc. provides Internet-based mailing and shipping
solutions in the United States. The Company was formerly known as
StampMaster, Inc. and changed its name to Stamps.com Inc. in
December 1998. Stamps.com Inc. was founded in 1996 and is
headquartered in El Segundo, California.
STATE FARM MUTUAL: Removes Queens Suit to District of Maryland
--------------------------------------------------------------
The Defendant in the case of ANDRAE QUEEN, individually and on
behalf of all other similarly situated, Plaintiff v. DESIREE BERRY;
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and STATE FARM FIRE
AND CASUALTY CO., Defendants, filed a notice to remove the lawsuit
from the Circuit Court of the State of Maryland, Baltimore City,
(Case No. 24-C-18-003908) to the U.S. District Court for the
District of Maryland on August 24, 2018, and assigned Case No.
1:18-cv-02625-PWG (D. Md., Aug. 24, 2018). The case is assigned to
Judge Paul W. Grimm.
State Farm Mutual Automobile Insurance Company provides various
insurance and financial services in the United States and Canada.
State Farm Mutual Automobile Insurance Company was founded in 1922
and is based in Bloomington, Illinois. [BN]
The Plaintiff is represented by:
David Errol Tompkins, Esq.
LEWIS AND TOMPKINS PC
4720 Montgomery Lane Suite 330
Bethesda, MD 20814
Telephone: (202) 296-0666
Facsimile: (202) 371-9228
E-mail: dtompkins@lewisandtompkins.com
- and -
Thomas Joseph Minton, Esq.
GOLDMAN AND MINTON PC
3600 Clipper Mill Rd, Suite 201
Baltimore, MD 21211
Telephone: (410) 783-7575
Facsimile: (410) 783-1711
E-mail: tminton@charmcitylegal.com
The Defendants are represented by:
Laura Basem Jacobs, Esq.
BUDOW AND NOBLE, P.C.
7315 Wisconsin Ave.
Rockville, MD 20814
Telephone: (301) 654-0896
Facsimile: (301) 907-9591
E-mail: ljacobs@budownoble.com
- and -
Cassandra Kerkhoff Johnson, Esq.
Daniel F Diffley, Esq.
ALSTON AND BIRD LLP
1201 W. Peaachtree St. NE Suite 4900
Atlanta, GA 30309
Telephone: (404) 881-7000
Facsimile: (404) 881-7777
E-mail: cassie.johnson@alston.com
dan.diffley@alston.com
STATE FARM: Faces $8.5-Bil. Claim Following Damage Award
--------------------------------------------------------
Margaret Cronin Fisk and Jef Feeley, writing for Bloomberg News,
report that planning for the caper involved finding the right man
for the mission, organizing front organizations to dole out $3.5
million to ensure the job got done, and then creating a
disinformation campaign to disguise their handiwork.
This wasn't the premise of a spy novel. It's what policy holders
allege a unit of State Farm, the biggest U.S. auto insurer, did to
get a friendly judge onto Illinois's highest court so he could
overrule a jury that ordered the company to pay $1 billion in
damages.
Planning for the caper involved finding the right man for the
mission, organizing front organizations to dole out $3.5 million to
ensure the job got done, and then creating a disinformation
campaign to disguise their handiwork.
This wasn't the premise of a spy novel. It's what policy holders
allege a unit of State Farm, the biggest U.S. auto insurer, did to
get a friendly judge onto Illinois's highest court so he could
overrule a jury that ordered the company to pay $1 billion in
damages.
More than a decade after the award was reversed in state court,
customers will get another chance before a federal judge starting
on Sept. 4, this time alleging a company conspiracy to block the
payments. State Farm denies any wrongdoing, but the stakes are now
higher. Plaintiffs are seeking more than $8.5 billion, which
includes the original judgment handed down in 1999, plus 19 years
of interest, and the tripling of damages under civil racketeering
law.
In such cases, a final judgment "can be devastating to even a
deep-pocket defendant like an insurance company," said law
professor David Logan at Roger Williams University in Bristol,
Rhode Island. Just using the word "racketeering" in a trial "can be
highly prejudicial to defendants," Logan added. "But challenges
have been generally unsuccessful."
U.S. District Judge David Herndon, who is presiding over the trial,
in July rejected State Farm's request to throw out the claim under
the Racketeer Influenced and Corrupt Organizations Act, or RICO.
Triple Damages
Should State Farm lose, the federal jury in East St. Louis,
Illinois, would determine the initial damages. Judge Herndon would
determine how much interest should be paid, and the tripling of the
award would be mandated by law.
In their original lawsuit, State Farm customers claimed they were
given generic car parts of lower quality than original equipment
over more than a decade, violating the terms of their insurance
policies. In 1999, an Illinois state court jury awarded them $456
million for breach of contract, and the trial judge added $730
million in damages on a fraud claim. An appellate court reduced the
verdict to $1.056 billion, but it was one of the largest
class-action awards in U.S. legal history.
In 2004, Lloyd Karmeier, a Republican who had been a circuit judge
in rural Washington County for almost two decades, was elected to
the Illinois Supreme Court. A year later, the Illinois Supreme
Court threw out the award, and the U.S. Supreme Court refused to
review the case, seemingly ending the litigation.
New Hope
But policyholders found new hope in 2009, when the U.S. Supreme
Court, ruling in a lawsuit involving the coal-mining company Massey
Energy Co., found that judges have to recuse themselves in some
cases involving their top campaign contributors, said
Bob Clifford, the plaintiffs' lawyer.
Citing emails and other internal communications between State Farm
and people working in the Karmeier campaign, including political
groups that served as intermediaries, the plaintiffs argued that
State Farm was the dominant player in recruiting the judge and
funding his campaign.
The company sent its cash through advocacy groups that didn't
disclose donors, which would "enable State Farm to falsely deny its
role in funding the campaign so that Justice Karmeier could
participate in deciding" the 1999 damage verdict if he were
elected, lawyers for the plaintiffs said in court papers.
Ed Murnane, who was president of the Illinois Civil Justice League,
and William Shepherd, an attorney for the insurer, were named in
the lawsuit as taking part in the conspiracy to elect Karmeier to a
vacant seat on the state high court. The insurer "held a majority
of the votes on the committee that controlled" Murnane's
compensation, the plaintiffs said in court filings.
New Appeal
After the Massey Energy case was decided, the State Farm customers
asked the Illinois Supreme Court to reinstate the judgment, citing
new evidence on the insurer's efforts to elect Karmeier. The
plaintiffs claim State Farm continued to conceal its actions and
lied to the court in September 2011 by denying it contributed to
the Karmeier campaign.
The appeal was rejected, and months later, the policyholders filed
the new racketeering lawsuit in federal court. The plaintiffs are
the same people who sued more than 20 years ago.
The Illinois Supreme Court election campaign of 2004, which saw
Karmeier and his opponent spending more than $9 million, is
considered the most expensive state court judicial race ever for a
single seat, according to Alicia Bannon of the Brennan Center for
Justice in New York, who studies state judicial election
financing.
Outside Financing
In recent years, the prevalence of outside money in state elections
"has increased dramatically," Ms. Bannon said. "It's become quite
common that judges are hearing cases involving major campaign
contributors."
Karmeier, 78, has been the state's chief justice since 2016. He
wasn't sued in the civil racketeering case, but he will be a
witness in the trial. The judge's office, citing court rules, said
Karmeier was barred from commenting on pending litigation.
State Farm, based in Bloomington, Illinois, also declined to
comment. In court filings, the company has denied any wrongdoing,
contending that the plaintiffs are attempting to revive a long-dead
lawsuit by filing a meritless RICO claim. It also denied any
conspiracy, fraud or improper campaign financing.
Supporters of Karmeier's election didn't act as a corrupt
association, but an "amorphous group of persons and entities,"
State Farm lawyers said in an Aug. 21 filing. "Plaintiffs can
provide no evidence that the alleged association members had a
common purpose of obtaining reversal of the Avery judgment or any
other common purpose that continued after Justice Karmeier's
election on Nov. 4, 2004."
Karmeier wasn't aware of any "alleged" financing by the insurance
company, State Farm said.
On Merits
In the decision to reverse the verdict on appeal, the Illinois
Supreme Court in 2005 found that the policy holders shouldn't have
been combined together in a class action and that there was no
evidence of fraud. That ruling was decided on its merits, with all
six participating Illinois Supreme Court justices reversing the
judgment, the company noted.
The unanimous vote doesn't indicate State Farm would have won
anyway, said Mr. Clifford, the plaintiff's attorney.
Karmeier wasn't present for oral arguments on the appeal, but
weighed in after he was elected, breaking a deadlock at the
Illinois Supreme Court, Mr. Clifford said. Plaintiffs claim
Karmeier knew State Farm was financing his election and that they
were denied the right to be judged by a court that was
uncontaminated by politics.
The case is Hale v. State Farm Mutual Automobile Insurance Co.,
12-cv-00660, U.S. District Court, Southern District of Illinois
(East St. Louis). [GN]
STATE FARM: Settles Conspiracy Class Action for $250MM
------------------------------------------------------
Robert Patrick, writing for St. Louis Post-Dispatch, reports that a
class-action lawsuit claiming State Farm conspired to defraud 4.7
million current and former customers out of a $1.05 billion award
by electing a friendly Illinois Supreme Court judge was settled on
Sept. 4 for $250 million.
U.S. District Judge David Herndon gave his preliminary approval of
the settlement on Sept. 4, when the trial was set to begin. A final
hearing to approve the settlement has been set for Dec. 13.
In the settlement, State Farm continues to "expressly deny" the
lawsuit's claims, saying they sought to avoid the costs of
litigation and had viable defenses to the suit. A spokesman
directed a reporter to a statement that said the same.
Robert Clifford, lead counsel for the plaintiffs, said on Sept. 4
that "justice was served" in a case "over two decades in
duration."
The company has 10 days to deposit the $250 million in an Illinois
bank while the potential members of the class are notified.
The lawsuit, filed in 2012, has its origins in a separate
class-action suit filed in 1997 that claimed customers should be
compensated for the use of nonfactory authorized or original parts
in repairs.
A Williamson County jury agreed, and a judge in 1999 awarded the
plaintiffs $456.6 million in damages for breach of contract, $600
million in punitive damages for violating the Illinois Consumer
Fraud Act and disgorgement damages of $130 million.
An appeals court later tossed out the disgorgement damages.
While the company's appeal was pending in front of the Illinois
Supreme Court, the lawsuit claims State Farm "exerted financial and
political influence" to elect Lloyd Karmeier to that court.
The suit claims State Farm, acting through the Illinois Civil
Justice League, recruited Karmeier and funneled as much as $4
million to his campaign, and later lied about the effort.
Nine months after his 2004 election, Karmeier voted to overturn the
judgment. Mr. Clifford said that Karmeier denied both knowing about
his contributors and voting based on them. He sat for a deposition
and was scheduled to testify, which Mr. Clifford called
unprecedented.
After a U.S. Supreme Court ruling that said a West Virginia judge
should have recused himself in a somewhat analogous situation,
lawyers for the plaintiffs began investigating, and filed a federal
racketeering suit in 2012.
The $250 million includes the costs to administer the settlement as
well as lawyers' fees and costs. Three representatives of the class
will also receive an extra $25,000.
The settlement covers anyone in the original class-action suit:
those insured by State Farm who made an accident claim and were
supplied nonfactory authorized or original parts in vehicle
repairs, or those who were paid for the value of those parts, from
July 28, 1987, to Feb. 24, 1998. Arkansas and Tennessee residents
are excluded, as well as residents of Illinois and California
during certain periods. [GN]
STRATEGIC FUNDING: Guido Sues over Unlawful Interest Rates
----------------------------------------------------------
INGRID GUIDO, individually and on behalf of all others similarly
situated, Plaintiff v. STRATEGIC FUNDING SOURCE, INC., Defendant,
Case No. 3:18-cv-01995-AJB-AGS (S.D. Cal., Aug. 27, 2018) alleges
violation of the California's Unfair Competition Law.
The complaint alleges in the complaint that the Defendant charged
the Plaintiff usurious interest rates so that the Plaintiff is
locked in to loans the Plaintiff cannot afford to repay, and
instead end up repaying many times the face value of the loan
without significantly reducing the principal balance owed.
Strategic Funding Source, Inc. provides working capital and related
products to small businesses. The company offers revenue based
financing, small business loans, equipment financing, and factoring
services. It serves restaurants, real estate agencies, hotels,
sports facilities, funeral homes, farms, staffing agencies,
software companies, insurance brokerages, garden centers, gift
shops, florists, food stores, dentists, and spas; and construction,
medical, manufacturing, agriculture, personal services, and
automotive sectors in the United States. Strategic Funding Source,
Inc. was founded in 2006 and is based in New York, New York. [BN]
The Plaintiff is represented by:
Ahren A. Tiller, Esq.
BLC LAW CENTER, APC
1230 Columbia Street, Suite 1100
San Diego, CA 92101
Telephone: (619) 894-8831
Facsimile: (866) 444-7026
E-mail: ahren.tiller@blc-sd.com
- and -
Michael G. Doan, Esq.
Karen Spicker, Esq.
DOAN LAW FIRM
1930 S. Coast Hwy Suite 206
Oceanside, CA 92054
Telephone: (760) 450-3333
Facsimile: (760) 720-6080
SUNTRUST BANK: Underpays Fraud Investigators, Cobb Suit Alleges
---------------------------------------------------------------
KELLY COBB, individually and on behalf of all others similarly
situated, Plaintiff v. SUNTRUST BANK, Defendant, Case No.
1:18-cv-04053-ODE (N.D. Ga., Aug. 27, 2018) is an action against
the Defendant for failure to pay proper overtime compensation for
all hours worked in excess of 40 hours in a workweek.
The Plaintiff Cobb was employed by the Defendant as fraud
investigator from October 5, 2015 to January 26, 2018.
Suntrust Bank offers banking solutions to small businesses. It
offers savings accounts, certificate of deposits, card products,
business credit cards, bank gift cards, and checking accounts,
including premium business interest, business money market
performance, and business money market accounts. The company also
provides cash management, online check deposit, student banking,
and merchant services. Suntrust Bank was formerly known as Suntrust
Bank, Atlanta and changed its name to Suntrust Bank in January
2000. The company was founded in 1891 and is based in Atlanta,
Georgia. Suntrust Bank operates as a subsidiary of SunTrust Bank
Holding Company.
The Plaintiff is represented by:
Marc Garber, Esq.
Alan H. Garber, Esq.
THE GARBER LAW FIRM, P.C.
4994 Lower Roswell Rd Ste 14
Marietta, GA 30068-5648
Telephone: (678) 560-6685
Facsimile: (678) 560-5067
E-mail: ahgarber@garberlaw.net
mngarber@garberlaw.net
SUPERBA FB: Martinez Seeks Unpaid Wages under Labor Code
--------------------------------------------------------
HUMBERTO MARTINEZ, on behalf of himself and all others similarly
situated, the Plaintiff, v. SUPERBA FB VENICE, LLC, a California
limited liability company; and DOES 1 through 50, inclusive, the
Defendants, Case No. BC721328 (Cal. Super., Sept. 14, 2018), seeks
to recover unpaid wages under the California Labor Code.
According to the complaint, Superba FB Venice operates at least one
restaurant under the name "Superba," and has done business in Los
Angeles County and throughout the State of California. In its
endeavor, Superba FB Venice employs non-exempt personnel in
California in "back of the house" positions, including but not
limited to those with the title of chef, cook, line cook,
dishwasher, and food preparation. This lawsuit challenges
Defendants' wage and hour practices as they concern all Non-Exempt
Back of House Employees. With respect to Plaintiff and the other
Non-Exempt Back of House Employees, Defendants' uniform policies
and procedures related to its compensation for its Non-Exempt Back
of House Employees during the last four years results in the
following uniform policies and practices that are in violation of
California state laws.[BN]
The Plaintiff is represented by:
Arthur Y. Whang, Esq.
ANG LAW FIRMT
A PROFESSIONAL CORPORATION
11355 West Olympic Boulevard, Suite 200
Los Angeles, CA 90064
Telephone: (310) 479 7300
Facsimile: (310) 943 3774
E-mail: arthur@whanglaw.com
- and -
William O. Kampf (SBN 217854)
LAW OFFICE OF WILLIAM O. KAMPF
4014 Long Beach Boulevard, Suite 300
Long Beach, CA 90807
Telephone: (310) 948 0715
Facsimile: (310) 494 9481
E-mail: william@woklaw.com
SUPERCUTS INC: Martinez Sues over Identity Theft & Fraud
--------------------------------------------------------
KATHERINE MARTINEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, the Plaintiff, v. SUPERCUTS, INC. D/B/A
ENCINITAS RANCH SUPERCUTS; AND, DOES 1-20, INCLUSIVE, the
Defendants, Case No. 37-2018-00046589-CU-NP-CTL (Cal. Super. Ct.,
Sept. 14, 2018), seeks to recover damages, injunctive relief, and
any other available legal or equitable remedies, resulting from the
illegal actions of the Defendant with regard to Defendant's failure
to protect Plaintiff and others similarly situated against identity
theft and fraud by printing a receipt containing both the first
four and last four digits of Plaintiff's credit card number.
According to the complaint, on July 24, 2017, the Plaintiff used
Plaintiffs Visa Credit Card at the Encinitas Ranch Supercuts
located at 1044-A N. El Camino Real, Encinitas, CA 92024. At the
point of sale, the Defendant provided a receipt that contained both
the first four and last four digits of Plaintiff s card number.
Through this conduct, Defendant violated 15 U.S.C. section
168lc(g)(l) which states that no person that accepts credit cards
or debit cards for the transaction of business shall print more
than the last 5 digits of the credit number or the expiration date
upon any receipt provided to the cardholder at the point of the
sale or transaction. 15 U.S.C. section 168lc(g)(l) applies to any
cash register or other machine or device that electronically prints
receipts for credit card or debt card transactions.
The Defendant has transacted business throughout the United States
and accepts credit cards and debit cards in the ordinary course of
business. The Defendant also electronically prints receipts for
credit card and debit card transactions at the point of sale. It is
Defendant's policy to provide a receipt to each customer printed at
the point of sale. Through this conduct, Defendant has violated The
Fair and Accurate Credit Transactions Act.
Supercuts is a hair salon franchise with more than 2,400 locations
across the United States.[BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Matthew M. Loker, Esq.
Elizabeth A. Wagner, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400 6808
Facsimile: (800) 520 5523
E-mail: ak@kazlg.com
ml@kazlg.com
elizabeth@kazlg.com
- and -
HYDE & SWIG ART
Joshua B. Swigart, Esq.
2221 Camino Del Rio South, Suite 101
San Diego. CA 92108
Telephone: (619) 233 7770
Facsimile: (619) 297 1022
E-mail: josh@westcoastlitigation.com
- and -
KETTNER LAW, APC
Marc Applbaum, Esq.
2150 W. Washington Street, Suite No. 104
San Diego, CA 92110
Telephone: (800) 917 0911
E-mail: marc@kettnerlaw.com
SUTTELL & HAMMER: Park Files FDCPA Suit in W.D. Washington
----------------------------------------------------------
A class action lawsuit has been filed against Suttell & Hammer,
P.C. The case is styled as Garam Park individually and on behalf of
all others similarly situated, Plaintiff v. Suttell & Hammer, P.C.,
Defendant, Case No. 2:18-cv-01407 (W.D. Wash., Sept. 24, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Suttell & Hammer, PC is a law firm in Bellevue, WA.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Sanders Law, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@sanderslawpllc.com
T.Y.P RESTAURANT GROUP: Schoen Sues over Tender Greens Gift Cards
-----------------------------------------------------------------
KIM SCHOEN, individually and on behalf of all others similarly
situated, Plaintiff v. T.Y.P RESTAURANT GROUP, INC., d/b/a TENDER
GREENS; and DOES 1 through 20, Defendants, Case No.
37-2018-00043016-CU-BT-NC (Cal. Super., San Diego Cty., Aug. 24,
2018) alleges that the Defendants violated the California gift card
laws by requiring the Plaintiff to redeem the Defendants' gift
cards for the Defendants' items only, even when the Plaintiff and
the class do not wish to purchase the Defendants' items.
According to the complaint, the Plaintiff visited a California
Tender Greens location with a Tender Greens gift card and the
Plaintiff purchased items the Plaintiff wanted using the Tender
Greens gift card to pay for the items. After paying for the items
selected using the Tender Greens gift card, the Plaintiff's gift
card balance was less than $10. The Plaintiff did not want any
other items offered by the Defendants, instead, the Plaintiff
wanted the cash value of the gift card.
The Plaintiff asked the Tender Greens employee if the Plaintiff
could obtain the cash balance of the card. The employee informed
the Plaintiff that the Plaintiff could not get the balance in cash
and the balance had to remain on the card for future use at Tender
Greens.
TYP Restaurant Group, Inc., doing business as Tender Greens,
operates restaurants in California. Its menu includes salads,
entrees, sandwiches, soups, desserts, pastries, daily specials,
signature chicken varieties, and specialty dishes and items. The
company was incorporated in 2004 and is based in Culver City,
California with additional locations in Burbank, Los Angeles,
Glendale, Hollywood, Marina Del Rey, Pasadena, Santa Monica, Studio
City, Topanga, Torrance, West Hollywood, San Diego, San Francisco,
Walnut Creek, and Irvine, California. [BN]
The Plaintiff is represented by:
Phillip R. Poliner, Esq.
Neil B. Fineman, Esq.
FINEMAN POLINER LLP
155 North Riverview Drive
Anaheim Hills, CA 92808-1225
Telephone: (714) 620-1125
Facsimile: (714) 701-0155
E-mail: Phillip@FinemanPoliner.com
Neil@FinemanPoliner.com
TAMKO BUILDING: Homeowner Drops Roofing Shingle Defects Case
------------------------------------------------------------
Adam Rhodes, writing for Law360, reports that the named plaintiff
in a proposed class action against Tamko Building Products Inc.
over allegedly defective fiberglass roofing shingles threw out his
case after a yearslong series of blows. [GN]
TARA BUILDERS: Lagos Files FLSA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Tara Builders Inc. et
al. The case is styled as Mixio Lagos, Guillermo Alfaro
individually and on behalf of all others similarly situated,
Plaintiffs v. Tara Builders Inc., Prajwol Gajurel, Prabesh Gajurel,
Mohamed Ali, jointly and severally, Defendants, Case No.
1:18-cv-05411 (E.D. N.Y., Sept. 26, 2018).
The Plaintiff filed the case under the Fair Labor Standards Act.
ara Builders Inc. is in the New Construction, Single-family Houses
business.[BN]
The Plaintiffs appear pro se.
TARGET CORP: Boegeman Sues over Erroneous Credit Report
-------------------------------------------------------
CHRISTOPHER BOEGEMAN, the Plaintiff, v. TARGET CORPORATION, and
DOES 1-10, inclusive, the Defendant, Case No.
37-2018-00046303-CU-MC-CTL (Cal. Super. Ct., Sept. 13, 2018),
alleges that the Defendant erroneously reported negative and
derogatory reports on the Plaintiff's credit report.
The lawsuit contends that the Defendant's willful or negligent
failure to accurately report the Plaintiff's credit resulted in an
erroneous reporting of an invalid debt. The Defendant's failure to
correct its report, which it knew or should have known was
erroneous, caused the Plaintiff's damages.
On December 18, 2015, the Plaintiff filed for bankruptcy. On March
30, 2016, the Debt was discharged pursuant to a court order that
was mailed to the Defendant. The order advised the Defendant that
the Debt had been discharged. Following the bankruptcy, the account
should have been closed and the balance reduced to $0.00. On
September 30, 2016, the Plaintiff pulled his TransUnion credit
report and discovered that the Defendant had reported Plaintiff's
account as "charged off" from January 2016 to August 2016.
The Defendant reported information to TransUnion, a credit
reporting agency, that it had reason to know or should have known
was inaccurate, as evidenced by the fact that the bankruptcy court
mailed the Defendant a discharge notice that explicitly discharged
the Debt. Thus, the account was not charged off. The Defendant,
therefore, knew or should have known that the information that it
provided to TransUnion was inaccurate. Consequently, the Defendant
violated California Civil Code.
Target Corporation is the second-largest department store retailer
in the United States, behind Walmart.[BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
Yana A. Hart, Esq.
Hyde & Swigart
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233 7770
Facsimile: (619) 297 1022
E-mail: josh@westcoastlitigation.com
yana@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Suite D1
Costa Mesa, CA 92626
Telephone: (800) 400 6808
Facsimile: (800) 520 5523
E-mail: ak@kazlg.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
409 Camino Del Rio South, Suite 101B
San Diego, CA 92108
Telephone: (619) 222 7429
Facsimile: (866) 431 3292
E-mail: DanielShay@SanDiegoBankruptcyNow.com
TARGET CORP: Debit Card Holders Sue Over Overdraft Fees
-------------------------------------------------------
Michelle Dixon and Charles Powell, on behalf of themselves and all
others similarly situated, Plaintiffs, v. Target Corp., Defendant,
Case No. 18-cv-02660, (D. Minn., September 12, 2018) seeks to
recover monetary damages, restitution, and injunctive and
declaratory relief in accordance with various state consumer
protection acts.
Target Corporation is a Minnesota corporation currently operating
general merchandise discount stores throughout the U.S.
The complaint says Dixon used her Target Debit Card to make a
purchase at a Target store on or around June 6, 2015, in the amount
of $43.18. Target did not attempt to debit the transaction amount
until June 8, 2015. Because she had insufficient funds in her
account at the time Target finally attempted to debit $43.18 for
her June 6, 2015 purchase, her bank charged her a $35.00 overdraft
fee.
Powell, on the other hand, used his Target Debit Card to make a
purchase at a Target, in April, 2016, in the amount of $15.97 but
did not debit his account immediately. Because Plaintiff Powell had
insufficient funds in his account at the time Target finally
attempted to debit $15.49 for his purchase, Powell was charge a
$25.00 overdraft fee. [BN]
The Plaintiffs are represented by:
Melissa S. Weiner, Esq.
PEARSON, SIMON & WARSHAW, LLP
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Telephone: (612) 389-0600
Facsimile: (612) 389-0610
Email: mweiner@pswlaw.com
- and -
Jeffrey D. Kaliel, Esq.
Sophia G. Gold, Esq.
KALIEL PLLC
1875 Connecticut Ave., NW, 10th Floor
Washington, DC 20009
Tel: (202) 350-4783
Email: jkaliel@kalielpll.com
sgold@kalielpllc.com
- and -
Jeff Ostrow, Esq.
Joshua Levine, Esq.
KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT
One West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
Facsimile: (954) 525-4300
Email: ostrow@kolawyers.com
levine@kolawyers.com
- and -
Hassan A. Zavareei, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street, NW, Suite 1000
Washington, DC 20036
Telephone: (202) 973-0900
Facsimile: (202) 973-0950
Email: hzavareei@tzlegal.com
TENNESSEE: Denial of Bid to Exclude Testimony in Graham Endorsed
----------------------------------------------------------------
In the case, CHARLES GRAHAM, ET AL., Plaintiffs, v. RUSSELL L.
DAVIS, ET AL., Defendants, Case No. 3:16-1954 (M.D. Tenn.),
Magistrate Judge Joe B. Brown of the U.S. District Court for the
Middle District of Tennessee, Nashville Division, recommended the
denial of the Plaintiffs' motion to exclude the opinions and
testimony of Dr. Martha S. Gerrity.
The Plaintiffs, both of whom are infected with the Hepatitis C
Virus ("HCV"), brought the action on July 25, 2016 alleging that
current Tennessee Department of Correction ("TDOC") policies have
"consistently and systematically" denied them medical treatment in
violation of their rights under the Eighth Amendment. The District
Judge granted the Plaintiffs' motion for class certification on May
4, 2017. The case is scheduled for a bench trial on Dec. 4, 2018.
The Plaintiffs filed a motion on June 15, 2018 to limit the
testimony and opinions of the Defendants' expert, Martha S.
Gerrity, M.D., M.P.H., Ph.D., pursuant to Rule 702, Fed.R.Evid. and
Daubert v. Merrell Dow Pharmaceuticals, Inc. The Defendants
responded in opposition on June 29, 2018.
The Plaintiffs' motion to exclude was referred to the Magistarte
for a Report and Recommendation ("R&R") on July 5, 2018.
Thereafter, the Defendants filed a motion on July 9, 2018 for leave
to file a reply. Their motion was granted on July 16, 2018, and
their reply filed the same day. The matter is now properly before
the court.
The Plaintiffs argue that their motion to "exclude and/or limit"
Dr. Gerrity's testimony should be granted because she lacks any
training, education, experience or other qualifications related to
the treatment of Hepatitis C, and that she has no knowledge of the
Defendants' policies or the other facts relevant to the resolution
of the constitutional issues in the case. They argue further that
Dr. Gerrity's testimony should be excluded because she is
essentially on retainer for the State in offering medical advice, a
position of such conflict as to render her opinion more prejudicial
than probative.
The Defendants argue in their response that the Plaintiffs' case
turns on whether they have violated the Plaintiffs' constitutional
rights because medical care is not provided to infected Tennessee
inmates accordance with AASLD ("American Association for the Study
of Liver Disease") Guidelines which requires that direct-acting
antiviral ("DAA") drugs be administered to patients infected with
chronic HCV regardless of the extent of their fibrosis progression.
They argue further that Dr. Gerrity's testimony should be admitted
because her testimony does not pertain to the treatment of HCV, but
rather that the Guidelines do not meet the standards for
trustworthy guidelines.
The Magistrate Judge finds that Dr. Gerrity's experience,
knowledge, skill, training and education provides a sufficient
foundation for her proffered expert testimony. Accordingly, the
Plaintiffs' motion to exclude or limit Dr. Gerrity's testimony
under the Daubert factors should be denied.
The Magistrate Judge also finds all of the Plaintiffs' specific
arguments in the context of Daubert without merit. Among other
things, he finds that (i) inasmuch as Dr. Gerrity's testimony goes
only to the evidence and research methodology used in developing
the Guidelines, she is not required to have the training,
education, experience or other qualifications required of a doctor
who actually treats patients with HCV; (ii) Dr. Gerrity's testimony
as to the trustworthiness of the Guidelines does not require any
knowledge of TDOC's policies and practices; (iii) it is abundantly
clear from Dr. Gerrity's deposition that her expert testimony will
be limited to the trustworthiness of the Guidelines; (iv) to the
extent that Dr. Gerrity's proffered testimony points to a lack of
evidence underpinning the Guidelines, then that constitutes
affirmative evidence that the Guidelines may be unreliable; and (v)
the he is confident that the Chief Judge is fully capable at the
upcoming bench trial to determine whether there is any conflict Dr.
Gerrity's testimony and, if there is, how much weight he should to
give to Dr. Gerrity's testimony.
For these reasons, Magistrate Judge Brown recommended the the
Plaintiffs' motion to exclude the opinions and testimony of Dr.
Gerrity be denied. The parties have 14 days of being served with a
copy of the R&R to serve and file written objections to the
findings and recommendation proposed. A party will respond to the
objecting party's objections to the R&R within 14 days after being
served with a copy thereof. Failure to file specific objections
within 14 days of receipt of the R&R may constitute a waiver of
further appeal.
A full-text copy of the Court's Aug. 21, 2018 Report &
Recommendation is available at https://is.gd/0OYcKA from
Leagle.com.
Charles Graham, also known as Charles Stevenson & Russell L. Davis,
on behalf of themselves and all others similarly situated,
Plaintiffs, represented by Anthony A. Orlandi --
anthonyo@bsjfirm.com -- Branstetter, Stranch & Jennings, PLLC,
Callie Kate Barker Jennings -- calliej@bsjfirm.com -- Branstetter,
Stranch & Jennings, PLLC, Karla M. Campbell -- karlac@bsjfirm.com
-- Branstetter, Stranch & Jennings, PLLC, Sherry A. Wilds --
sherryw@disabilityrightstn.org -- Disability Rights Tennesse,
Stacie L. Price, Disability Rights Tennesse & Thomas H. Castelli --
tcastelli@aclu-tn.org -- ACLU.
Calvin Landers, Plaintiff, pro se.
Tony C. Parker, Commissioner, Tennessee Department of Corrections,
in his official capacity, Marina Cadreche, Dr., Assistant
Commissioner of Rehabilitative Services, Tennessee Department of
Corrections, in her official capacity & Kenneth Williams, Dr.,
Medical Director, Tennessee Department of Corrections, in his
official capacity, Defendants, represented by James R. Newsom, III,
Harris, Shelton, Hanover & Walsh, PLLC, Pamela S. Lorch, Tennessee
Attorney General's Office & Steven Ashley Hart, Tennessee Attorney
General's Office.
William D. Hamby, Jr., Interested Party, pro se.
TICKETMASTER: Faces Class Action Lawsuit After Scalping Report
--------------------------------------------------------------
Amy X. Wang, writing for Rolling Stones, reported that news of
Ticketmaster's alleged collusion with ticket scalpers -- detailed
in an investigative report in mid-September by CBC and the Toronto
Star -- has sparked a development that perhaps was only a matter of
time: a class-action lawsuit from fans.
Law firm Hagens Berman filed a suit in California federal court on
behalf of lead plaintiff Allen Lee, who is suing Ticketmaster and
its parent company Live Nation Entertainment for "unlawful and
unfair business practices" that have "unjustly enriched" the
ticket-seller at the expense of live events fans.
According to the Canadian outlets' mid-September report,
Ticketmaster secretly helps scalpers grab mass quantities of
tickets for resale and collects kickbacks from their secondary
sale, which takes place via Ticketmaster-regulated platforms. While
Ticketmaster's secondary market is legitimate, allowing mass resale
violates the company's own stated policies.
Steve Berman, managing partner and co-founder of the law firm
representing the suit, called such a program a "highly controlled
black-market scheme," and the suit's proposed class encompasses
anyone in the U.S. who has purchased a ticket from a professional
reseller associated with Ticketmaster's secondary market.
A representative for Ticketmaster did not immediately reply to a
request for comment. A rep for Hagens Berman directed Rolling Stone
to a press release on the suit.
Separately, U.S. senators Jerry Moran and Richard Blumenthal sent a
letter to Live Nation CEO Michael Rapino demanding clarifications
about Ticketmaster's resale programs, noting that the "allegations
of the harms to consumers" are "serious and deserve immediate
attention."
"When you think of ticket buyers being swindled by scalpers, you
likely imagine last-minute sales outside venue doors," Berman said
in a press release accompanying the suit. "You certainly wouldn't
assume the company selling the tickets -- Ticketmaster -- to be the
ringleader behind massive price hikes spanning millions of
tickets."
Hagens Berman is now asking for others who have purchased secondary
market tickets from Ticketmaster's resale platforms, including
TicketsNow and Ticketmaster Verified, to come onboard. The class
must be certified by a judge for the case to proceed.
A second class-action lawsuit against Ticketmaster and Live Nation
in Canada is also pending, encompassing not the resale program in
particular but Ticketmaster's high pricing at large; lawyer Tony
Merchant says he has been working on the suit for six months. [GN]
TIME INC: Faces Lachapelle Class Suit in Rhode Island
-----------------------------------------------------
A class action lawsuit has been filed against Time Inc. et al. The
case is styled as Christina Lachapelle individually and on behalf
of all others similarly situated, Plaintiff v. Time Inc., Meredith
Corporation, Defendants, Case No. 1:18-cv-00535 (D. R.I., Sept. 25,
2018).
The nature of suit is stated as Other Fraud.
Time Inc., together with its subsidiaries, operates as a
multi-platform media and content company in the United States, the
United Kingdom, and internationally. It publishes approximately 75
magazine titles under the People, Time, Fortune, Sports
Illustrated, InStyle, Real Simple, Southern Living, Entertainment
Weekly, Food & Wine, Travel & Leisure, and Essence brands.
Meredith Corporation is a diversified media company that primarily
focuses on publishing and broadcasting. The Company's publishing
segment includes magazine and book publishing, marketing,
interactive media, licensing, and other related operations.
Meredith operates network-affiliated television stations and
develops syndicated television programs.[BN]
The Plaintiff is represented by:
Peter N. Wasylyk. Esq.
Law Offices of Peter N. Wasylyk
1307 Chalkstone Avenue
Providence, RI 02908
Phone: (401) 831-7730
Fax: (401) 861-6064
Email: pnwlaw@aol.com
TIME INC: Judges Can't Question Individual Shareholder Settlement
-----------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that federal judges
don't have the authority to question settlements between individual
shareholders and companies in the midst of M&A deals, according to
an opinion issued on Aug. 31 by U.S. District Judge Denise Cote of
Manhattan.
Judge Cote had toyed with the idea that these individual
shareholder settlements -- which have become, as she noted, a
distinct trend in securities litigation -- might be subject to Rule
11 scrutiny under the Private Securities Litigation Reform Act. She
concluded such settlements do not trigger the PSLRA's Rule 11
strictures because the voluntary dismissal of an individual
shareholder's claim is not a final adjudication.
That's an important holding for plaintiffs' lawyers. But before the
shareholder bar gets too excited, it should also note Judge Cote's
possibly ominous discussion of preliminary injunctions in deal
litigation.
The judge spent a lot of time talking about the qualifications, or
lack thereof, of the named plaintiffs who sued Time Inc, alleging
insufficient disclosures about Meredith Corporation's $2.8 billion
acquisition of the company. One of the plaintiffs owned 100 shares
in Time, worth less than $2,000. The other owned 8 shares, a stake
of $200. Both are repeat securities class action plaintiffs. Judge
Cote said their early motion to enjoin Meredith's acquisition of
Time is "an apt example of the dangers inherent in the pursuit of a
putative class action challenging the adequacy of disclosures for
an M&A transaction."
Because this litigation was dismissed so quickly, the judge said,
it didn't give her an opportunity to delve into the possibility
that shareholders abused the threat of a preliminary injunction to
obtain worthless disclosures. But it sounds like Judge Cote is
spoiling for a chance to rein in M&A shareholder class actions in
federal court.
That's certainly where the action is. As you know -- and as law
professors including Penn's Jill Fisch documented in a 2018 paper,
"The Shifting Tides of Merger Litigation," cited in Judge Cote's
opinion -- shareholders suing over supposedly flawed M&A deals
moved in droves to federal court after Delaware Chancery Court
severely restricted fee awards for disclosure-only settlements in
2015 and 2016. These federal-court M&A lawsuits have followed a
different path from the old-school Delaware class actions.
Delaware deal cases were typically settled as class actions, in
which shareholders granted defendants broad releases and the
Chancery judges set fees for plaintiffs' lawyers. By contrast, it's
rare for a shareholder M&A challenge in federal court to move
forward as a class action. The cases are filed as class actions, to
be sure, but they're frequently dismissed voluntarily before class
certification briefing (or much substantive litigation at all).
Sometimes shareholders' lawyers just drop investors' suits if
defendants balk in early negotiations. But dozens of 2017 M&A
challenges in federal court ended in the kind of settlement Judge
Cote addressed in the Aug. 31 opinion: Defendants agree to make
additional disclosures in exchange for shareholders quickly
dropping their suits.
These settlements don't include broad shareholder releases, since
they're struck only with the investors who filed suit, not an
entire class of shareholders. But they often do include fees for
the shareholders' lawyers who filed the suit: My analysis of the
M&A cases filed in federal court in 2017 shows that defendants
agreed to pay fees to shareholders' lawyers in more than 70 cases,
out of 200-plus cases. In at least 60 cases, those fees were not
disclosed to the court.
We can debate forever the value of the additional disclosures
shareholders obtain through M&A challenges. Delaware judges
concluded that the vast majority of the disclosures obtained in
shareholder M&A challenges are not material. The 7th U.S. Circuit
Court of Appeals adopted Delaware's tough standard in its 2016
decision in In re Walgreen Stockholder Litigation. Judge Cote is of
the view that disclosure-only settlements "principally benefit
plaintiff's counsel."
Other federal judges have approved fees for shareholders' lawyers
who obtained only additional disclosures, including (in a case
cited by Judge Cote), U.S. District Judge Thomas Schroeder of
Greensboro, North Carolina, in 2017's In re Hatteras Financial. In
the Time case, said shareholder lawyer Carl Stine of Wolf Popper in
an email, "Time disclosed important information related to the
company's projections, the process leading up to the transaction,
and Time insiders' and their banker's potential conflicts of
interest—all without the release of any class-wide claims."
Stine said plaintiffs' lawyers are earning reasonable mootness fees
in disclosure-only, individual-investor settlements in federal
court. I've found examples of mootness fees topping $300,000 in
voluntarily dismissed, federal-court M&A challenges, but Stine said
those fees came early in the wave. Fees have since leveled off at a
much lower level, generally less than $125,000, according to Stine.
"Nobody is getting rich off these cases," he said. (Stine said Time
paid a mootness fee in the case before Judge Cote but declined to
say how much.)
Regardless of what judges think of disclosure-only settlements and
mootness fees, Judge Cote said they're outside of the court's
control under the PSLRA. But that's why her skepticism about
small-stake shareholders threatening to hold up billion-dollar
transactions stood out to me. As Stine pointed out in his email
statement about Cote's opinion, it doesn't really matter how many
shares a lead shareholder owns. That's the nature of class actions.
And shareholders alone can't block a transaction, Stine noted. "If
Time had not made these disclosures, the judge, not the plaintiff
shareholders, would have decided whether to enjoin the
transaction," he wrote in his email.
Judge Cote's musing about the power of the threat of an injunction
by shareholders with only a minuscule stake in the deal, in other
words, was extraneous. But that's what made it particularly
pointed. "The time frames in which an M&A transaction must close
usually discourages defendants from attempting to defeat pre-merger
litigation on the merits, even when that litigation is abusive,"
the judge wrote. "If a preliminary injunction against the closing
of the tender offer had been granted, two plaintiff shareholders
with minimal stakes in the litigation would be holding up a
multi-billion-dollar transaction, with potentially enormous
consequences for all shareholders."
Reuters' Ms. Frankel said "I have to read that passage of Judge
Cote's opinion as a warning: Woe to the small-time shareholder who
actually tries to enjoin an M&A deal in her courtroom. If I were a
defendant facing an M&A disclosure suit in a case before Judge
Cote, I'd think hard about settling, even if the cost of settlement
is only $125,000 and some additional disclosures." [GN]
TORCHMARK CORP: Arbitration Underway in Bruce Class Action
----------------------------------------------------------
The U.S. District Court for the Northern District of Texas has
granted Torchmark Corporation's motion to compel arbitration in a
putative class action filed in Texas against it subsidiary,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
On February 1, 2018, putative class action litigation was filed
against American Income Life Insurance Company in U.S. District
Court for the Northern District of Texas, Dallas Division (Bruce v.
American Income Life Insurance Company, et al., Case No.
3:18-cv-00258-G). The plaintiff, a former insurance sales agent of
American Income who is suing on behalf of all current and former
American Income sales agents contracted through State General Agent
Stephen Jubrey's agency office at any time since January 31, 2015
through the final disposition of this matter, asserts that such
agents are employees rather than independent contractors as they
are classified by American Income. He alleges failure to pay
minimum wages, overtime wages and other applicable monies in
accordance with the Fair Labor Standards Act. The plaintiff seeks,
in a jury trial, actual and punitive damages, pre- and
post-judgment interest, attorney fees, costs and other relief,
including injunctive relief. On February 27, 2018, the Company
filed a motion to compel arbitration of this matter and on July 27,
2018, the Court granted the Company's motion.
Torchmark Corporation, through its subsidiaries, provides various
life and health insurance products, and annuities in the United
States, Canada, and New Zealand. It operates through four
segments: Life Insurance, Supplemental Health Insurance, Annuities,
and Investments. Torchmark Corporation was founded in 1900 and is
headquartered in McKinney, Texas.
TRANSAM TRUCKING: Judge Dismisses Misclassification Class Action
----------------------------------------------------------------
David Hollis, writing for CCJ, reports that a federal judge
recently ended two class action lawsuits worth a total of more than
$120 million against TransAm Trucking, a Kansas-based refrigerated
carrier who ranks No. 93 in the CCJ Top 250.
Judge Eric F. Melgren in the United States District Court for the
District of Kansas decertified the two classes of drivers in the
case, effectively ending the class action suit that claimed TransAm
Trucking misclassified drivers as independent contractors rather
than employees. The court also denied the drivers' claims regarding
minimum wage.
The drivers sought compensatory and liquidated damages for
approximately 8,500 drivers of $100 million dollars, as well as
attorney's fees. Drivers also sought compensatory and liquidated
damages of $22 million and attorney's fees in their claim under the
Fair Labor Standards Act for some 1,900 drivers.
The case, which was filed in 2009, claimed that the two classes of
drivers were misclassified as independent contractors when they
should have been paid as employees according to state and federal
law, according to a statement from the company. TransAm utilizes
both employed company drivers and independent contractors to haul
loads for its customers. The company's contractors were paid
significantly more per mile than company drivers under the terms of
their agreements with TransAm, the statement said. This allowed the
contractors to run their independent businesses however they deemed
most profitable.
"We truly value the relationship with our independent contractor
drivers and believe that we have the best program in the industry,"
said Russ McElliott, President for TransAm in a news release. "One
of the hallmarks of our program is to allow the driver to make his
or her own business decisions and choices every day. These drivers
have different goals and objectives and they make their own
decisions based on their goals and objectives. We are certainly
pleased that the court recognized this hallmark of our program in
this decision."
No appeal is expected. TransAm operates some 1,000 tractors and
over 1,900 trailers.
TransAm was represented by Seigfried-Bingham law firm of Kansas
City. Counsel representing the drivers were the Woody Law Firm in
Kansas City, Siro Smith Dickson in Kansas City and Brady &
Associates in Overland Park, Kansas. [GN]
TRANSDIGM GROUP: Still Faces Consolidated Securities Class Suit
---------------------------------------------------------------
TransDigm Group Incorporated is still defending itself against a
consolidated class action suit entitled, In re TransDigm Group,
Inc. Securities Litigation, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2018.
The Company said, "We and certain of our current or former officers
and directors are defendants in a consolidated securities class
action captioned In re TransDigm Group, Inc. Securities
Litigation, Case No. 1:17-cv-01677-DCN (N.D. Ohio). The cases
were originally filed on August 10, 2017, and September 18, 2017
and were consolidated on December 5, 2017. A consolidated amended
complaint was filed on February 16, 2018.
"The plaintiffs allege that the defendants made false or misleading
statements with respect to, or failed to disclose, the impact of
certain alleged business practices in connection with sales to the
U.S. government on the Company's growth and profitability. The
plaintiffs assert claims under Section 10(b) of the Exchange Act
and Rule 10b-5 promulgated thereunder and Section 20(a) of the
Exchange Act, and seek unspecified monetary damages and other
relief.
"In addition, we, as nominal defendant, and certain of our current
or former officers and directors are defendants in a shareholder
derivative action captioned Sciabacucchi v. Howley et al., No.
1:17-cv-1971-DCN (N.D. Ohio). The case was filed on September 19,
2017. The plaintiffs allege breach of fiduciary duty and other
claims arising out of substantially the same actions or inactions
alleged in the securities class actions. This action has been
stayed pending the outcome of an anticipated motion to dismiss on
the securities class action.
"Although we are only a nominal defendant in the derivative action,
we could have indemnification obligations and/or be required to
advance the costs and expenses of the officer and director
defendants in the action.
"We intend to vigorously defend these matters and believe they are
without merit. We also believe we have sufficient insurance
coverage available for these matters. Therefore, we do not expect
these matters to have a material adverse impact on our financial
condition or results of operations. However, given the preliminary
status of the litigation, it is difficult to predict the likelihood
of an adverse outcome or estimate a range of any potential loss."
TransDigm Group Incorporated designs, produces, and supplies
aircraft components in the United States. The company's Power &
Control segment offers mechanical/electro-mechanical actuators and
controls, ignition systems and engine technology, specialized pumps
and valves, power conditioning devices, specialized AC/DC electric
motors and generators, databus and power controls, hoists, winches
and lifting devices, and cargo loading and handling systems. The
company is based in Cleveland, Ohio.
TRANSWORLD SYSTEMS: Edson Sues over Debt Collection Practices
-------------------------------------------------------------
WAYNE FRANCIS EDSON, individually and on behalf of all others
similarly situated, Plaintiffs v. TRANSWORLD SYSTEMS INC.,
Defendant, Case No. 9:18-cv-81157-JIC (S.D. Fla., Aug. 27, 2018)
seeks to stop the Defendant's unfair and unconscionable means to
collect a debt.
Transworld Systems Inc. provides accounts receivable, debt
recovery, and past due accounts services for businesses, medical
companies, dental companies, education facilities, Fortune 500
companies, and small businesses in the United States and
internationally. It offers accelerator, profit recovery, messenger,
dental collection, demand/direct deposit account recovery plus,
outsourcing, medical collection, education collection, and
commercial/business-to-business collections services. The company
has strategic alliances with athenahealth, eClinicalWorks,
LeonardoMD, MDeverywhere, QuickBooks, Sikka Software Corporation,
and TotalMD. Transworld Systems Inc. was founded in 1970 and is
based in Santa Rosa, California. [BN]
The Plaintiff is represented by:
Steven F. Grover, Esq.
Steven F. Grover, P.A.
507 S.E. 11th Ct.
Fort Lauderdale, FL 33316
Telephone: 954-290-8826
E-mail: stevenfgrover@gmail.com
- and -
Joel A. Brown, Esq.
FRIEDMAN & BROWN LLC
5371 N.W. 33 Ave., Suite 205
Fort Lauderdale, FL 33309
Telephone: 954-334-9100
E-mail: joelb@fblegal.com
- and -
Paul Herman, Esq.
4801 Linton Blvd.
Suite 11A-560
Delray Beach, FL 33445
Telephone: 561-236-8851
E-mail: paherman1956@gmail.com
TRUCK INSURANCE: Court Flips Partial Summary Judgment in Kurach
---------------------------------------------------------------
In the cases, KONRAD KURACH, v. TRUCK INSURANCE EXCHANGE,
Appellant. MARK WINTERSTEEN, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, v. TRUCK INSURANCE EXCHANGE, Appellant,
Case Nos. 1726 EDA 2017, 1730 EDA 2017 (Pa. Super.), Judge Jack A.
Panella of the Superior Court of Pennsylvania reversed the trial
court's orders granting partial summary judgment to Truck's
insureds, Kurach and Wintersteen on the issue of whether general
contractor overhead and profit ("GCOP") is to be included in an
actual cash value settlement under their insurance policies with
Truck.
The trial court finds that all four factors weigh heavily in favor
of permitting immediate appeal. As to the first factor, there is a
significant relationship between the adjudicated breach of contract
claim and the remaining issues in the case, which are: (1) whether
class certification is appropriate, (2) the Plaintiff's claim for
bad faith, and (3) the Plaintiff's damages. Its analysis of
Truck's insurance policy language and its determination that Truck
may not withhold general contractor overhead and profit from Step-1
actual cash value payments are central to determining whether the
case may proceed as a class action. This is because the putative
class members are likely subject to identical contractual language.
As to the Plaintiff's bad faith claim, its analysis of Truck's
pertinent policy language is also related to whether the insurer
had a reasonable basis for denying benefits and whether Truck knew,
or recklessly disregarded, its own lack of reasonable bass to deny
the Plaintiff's Step 1 actual value claim. Its statutory bad faith
analysis is quite clearly related to whether the Plaintiff is
entitled to damages on its breach of contract claim.
As to the second and third factors, it is unlikely that a certified
appeal will be mooted by further developments or that it will
consider the breach of contract issue a second time. Regarding the
fourth factor, while the parties dispute whether immediate
appellate review will enhance settlement prospects, it is hard to
imagine that an affirmance will not, at the very least, encourage
Truck to reckon with the consequences.
The trial court also finds that an immediate appeal of the April
20, 2017 order is necessary to prevent injustice to Truck under
extraordinary circumstances presented by the putative class action
litigation. Without appellate court clarification and analysis of
the issues, Truck faces uncertainty in a class action environment
on the litigation's central issue: whether Truck is permitted to
withhold estimated general contractor overhead and profit when
calculating Step 1 actual value. This legal analysis is, of course,
closely related to the Plaintiff's remaining claims.
Judge Panella concludes that the court's explicit rationale for
certification is sound. Turning to the merits of the appeal, he
finds that the language in Truck's homeowner's policy explicitly
makes payment of GCOP contingent upon the insured actually
incurring and paying GCOP, unless Pennsylvania state law requires
its inclusion. Kurach and Wintersteen have not identified any case
that sets forth a public policy that actual cash settlement value
must include GCOP.
As recognized in Kane v. State Farm Fire and Casualty Co., the
definitions supplied by case law in Pennsylvania demonstrate the
parties' intent only where the policy does not explicitly provide
for a different outcome. Here, Truck's policy clearly and
obviously provides that GCOP will not be paid to an insured until
the insured actually incurs that cost. Thus, he concludes the
trial court erred as a matter of law in granting summary judgment
to Kurach and Wintersteen. Kurach and Wintersteen (and any
similarly situated putative Plaintiffs) are not entitled to receive
a payment for GCOP from Truck until they incur that cost.
Accordingly, he reversed the orders and remanded the case for
further proceedings consistent with his Memorandum.
A full-text copy of the Court's April 24, 2018 Memoradnum is
available at https://is.gd/hwKBdT from Leagle.com.
Robert N. Feltoon -- rfeltoon@conradobrien.com -- Andrew Kabnick
Garden -- agarden@conradobrien.com -- Conrad O'Brien P.C., for
Appellant, Truck Insurance Exchange.
Jonathan Wheeler -- jwheeler@wdblegal.com -- Jonathan Wheeler,
P.C., for Appellee, Konrad Kurach.
Howard Glenn Silverman, Kane & Silverman, P.C., for Participant,
Mark Wintersteen.
TRUEACCORD CORP: Miles Files FDCPA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against TrueAccord Corp. The
case is styled as Michelle Miles individually and on behalf of all
others similarly situated, Plaintiff v. TrueAccord Corp.,
Defendant, Case No. 1:18-cv-05358 (E.D. N.Y., Sept. 24, 2018).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
TrueAccord Corp. provides an automated platform for debt recovery.
Its platform uses an automated system, behavioral analytics, and a
humanistic approach to help businesses recover outstanding
payments, while maintaining a positive relationship with their
customer. The company was founded in 2013 and is based in San
Francisco, California.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Sanders Law, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@sanderslawpllc.com
TV BRANDS DIRECT: Faces Zhang Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against TV Brands Direct.
The case is captioned, QIU-YUN ZHANG, individually and on behalf of
all others similarly situated, Plaintiff v. TV BRANDS DIRECT, INC.
d/b/a GREEN ROOM MARKETING; and ALI SOLAMI d/b/a TV BRANDS EUCO
CLEAN d/b/a EUCO CLEAN, Defendant, Case No. 1:18-cv-07688-VSB
(S.D.N.Y., Aug. 23, 2018). The case is assigned to Judge Vernon S.
Broderick.
TV Brands Direct is a fully integrated direct marketing agency
specializing in short form DRTV (Infomercials). [BN]
The Plaintiff is represented by:
Mark Schlachet, Esq.
LAW OFFICES OF MARK SCHLACHET
3637 South Green Road, 2nd Floor
Cleveland, OH 44122
Telephone: (216) 896-0714
Facsimile: (216) 514-6406
E-mail: markschlachet@me.com
TWILIO INC: Angela Flowers' Class Action Underway in California
---------------------------------------------------------------
Twilio Inc. continues to defend itself in the "Flowers" class
action, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
On February 18, 2016, a putative class action complaint was filed
in the Alameda County Superior Court in California, entitled Angela
Flowers v. Twilio Inc. The complaint alleges that the Company's
products permit the interception, recording and disclosure of
communications at a customer's request and are in violation of the
California Invasion of Privacy Act. The complaint seeks injunctive
relief as well as monetary damages.
On May 27, 2016, the Company filed a demurrer to the complaint. On
August 2, 2016, the court issued an order denying the demurrer in
part and granted it in part, with leave to amend by August 18, 2016
to address any claims under California's Unfair Competition Law.
The plaintiff opted not to amend the complaint.
Following a period of discovery, the plaintiff filed a motion for
class certification on September 20, 2017. On January 2, 2018, the
court issued an order granting in part and denying in part the
plaintiff's class certification motion. The court certified two
classes of individuals who, during specified time periods,
allegedly sent or received certain communications involving the
accounts of three of the Company's customers that were recorded.
The court has not yet finalized a schedule for notice to potential
class members, additional discovery, summary judgment motions, or
trial.
Twilio Inc. provides a Cloud Communications Platform that enables
developers to build, scale and operate communications within
software applications through the cloud primarily as a
pay-as-you-go service.
UNBRAKO LLC: Fails to Pay Proper Wages, Hernandez and Perez Say
---------------------------------------------------------------
GUSTAVO HERNANDEZ, and PATRICK PEREZ, individually and on behalf of
all others similarly situated, Plaintiff v. UNBRAKO LLC; and DOES
1-100, Defendants, Case No. BC719076 (Cal. Super., Los Angeles
Cty., Aug. 23, 2018) is an action against the Defendants for unpaid
regular hours, overtime hours, minimum wages, wages for missed meal
and rest periods.
The Plaintiff Hernandez was employed by the Defendants as warehouse
manager. Mr. Perez was employed as order puller.
Unbrako LLC operates as a subsidiary of Precision Castparts Corp.
The Company manufactures and sells metal components and products to
the aerospace, power, and general industrial and other markets
worldwide. [BN]
The Plaintiffs are represented by:
Chris T. Nguyen, Esq.
Omri A. Ben-Ari, Esq.
BENARI & NGUYEN, LLP
2372 Morse Avenue, Suite 282
Irvine, CA 92614
Telephone: (949) 535-5217
Facsimile: (949) 535-5218
E-mail: litigation@banllp.com
- and –
Bryce A. Dodds, Esq.
THE LAW OFFICE OF BRYCE A. DODDS
100 E. San Marcos Blvd., Suite 400
San Marcos, CA 92069
Telephone: (760) 593-7353
Facsimile: (760) 593-4845
E-mail: bdodds@brycedoddslaw.com
UNITED PARCEL: Jackson Suit Moved to N.Y. State Court
-----------------------------------------------------
The class action lawsuit titled JARRELL JACKSON, individually and
on behalf of all others similarly situated, Plaintiff v. UNITED
PARCEL SERVICE GENERAL SERVICES, INC. d/b/a UPS, Defendant, was
transferred from the U.S. District Court for the Eastern District
of New York, Case No. 2:18-cv-02815, to the New York Supreme Court,
Nassau County, Case No. 604296/2018, on August 2, 2018.
United Parcel Service General Services Co. operates as a subsidiary
of United Parcel Service, Inc. United Parcel Service, Inc. provides
letter and package delivery, specialized transportation, logistics,
and financial services. United Parcel Service, Inc. was founded in
1907 and is headquartered in Atlanta, Georgia. [BN]
The Plaintiff is represented by:
Mark Gaylord, Esq.
BOUKLAS GAYLORD LLP
400 Jericho Turnpike, Suite 226
Jericho, NY 11753
Telephone: (516) 742-4949
Facsimile: (516) 742-1977
UNITED STATES: Class Must Amend Suit Over New Policy on Title IX
----------------------------------------------------------------
Robert Kahn, writing for Courthouse News, reported that a class
must amend their suit against Secretary of Education Betsy DeVos
over her changes to Title IX guidance on sex discrimination, a
federal judge ruled, dismissing the suit without prejudice for lack
of standing.
Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim
Rights Law Center brought the action for injunctive relief against
Defendants U.S. Department of Education, Secretary Elisabeth D.
DeVos, and Acting Assistant Secretary for Civil Rights Kenneth L.
Marcus. The Plaintiffs seek to vacate the Department's new policy
regarding enforcement of Title IX of the Education Amendments of
1972, as detailed in Department guidance issued on September 22,
2017.
The case is SURVJUSTICE INC., et al., Plaintiffs, v. ELISABETH D.
DEVOS, et al., Defendants, Case No.18-cv-00535-JSC (N.D. Calif.).
A copy of the Order from Courthouse News is available at
https://tinyurl.com/ybl2zuho
UNITED STATES: McDuffie County Joins PILT Class Action
------------------------------------------------------
Linda Green, writing for The McDuffie Progress, reports that
McDuffie County will join at least 1,600 other counties in the
country in a class action lawsuit to recover money they are owed by
the federal government under the Payments in Lieu of Taxes Act.
During the County Commissioners meeting Aug. 21, the commissioners
voted unanimously to approve entering into the class-action lawsuit
to collect the $36, 724.38 the government owes to McDuffie County
from 2015-2017. [GN]
UNIVERSAL HEALTH: Bid to Nix Teamsters Class Lawsuit Still Pending
------------------------------------------------------------------
Universal Health Services, Inc.'s motion to dismiss the amended
complaint in the Teamsters Local 456 Pension Fund lawsuit remains
pending, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2018.
In December 2016 a purported shareholder class action lawsuit was
filed in U.S. District Court for the Central District of California
against UHS and certain UHS officers alleging violations of the
federal securities laws.
The case was originally filed as Heed v. Universal Health Services,
Inc. et al. (Case No. 2:16-CV-09499-PSG-JC). The court
subsequently appointed Teamsters Local 456 Pension Fund and
Teamsters Local 456 Annuity Fund to serve as lead plaintiffs. The
case has been transferred to the U.S. District Court for the
Eastern District of Pennsylvania and the style of the case has been
changed to Teamsters Local 456 Pension Fund, et al. v. Universal
Health Services, Inc. et al. (Case No. 2:17-CV-02817-LS).
In September, 2017, Teamsters Local 456 Pension Fund filed an
amended complaint. The amended class action complaint alleges
violations of federal securities laws relating to disclosures made
in public filings associated with alleged practices and operations
at the Company's behavioral health facilities. Plaintiffs seek
monetary damages for shareholders during the defined class period
as a result of the decrease in share price following various public
disclosures or reports.
In December 2017, the Company filed a motion to dismiss the amended
complaint.
The Company said, "We deny liability and intend to defend ourselves
vigorously. At this time, we are uncertain as to potential
liability or financial exposure, if any, which may be associated
with this matter."
Universal Health Services, Inc., through its subsidiaries, owns and
operates acute care hospitals, outpatient facilities, and
behavioral health care facilities. The company operates through
Acute Care Hospital Services, Behavioral Health Care Services, and
Other segments. The company is based in King of Prussia,
Pennsylvania.
US XPRESS: Jury Trial in Robocall Suit Set to Begin Jan. 2020
-------------------------------------------------------------
Jill Dunn, writing for CCJ, reports that U.S. Xpress is facing a
lawsuit for its use of robocalls in driver recruiting, with
plaintiffs in the case seeking to include out-of-state residents in
its potential class-action lawsuit.
Plaintiffs are seeking $500 per class member and an injunction to
block the carrier from continuing the robocall practice, claiming
the practice violates a 1991 federal law.
U.S. Xpress in court documents has denied that its calls are
illegal, and the carrier argues that the court does not have
jurisdiction to hear out-of-state complaints. The practice of
carriers using automated calls and texts in driver recruiting
efforts is fairly common.
The federal judge overseeing the case recently refused to exclude
out-of-state residents from becoming plaintiffs in the lawsuit. On
July 25, the Charlottesville, Virginia-based court responded to
motions to dismiss two parts of the complaint seeking class action
certification. Senior Judge Norman Moon states that this
jurisdiction also applies to class members injured outside of
Virginia, given the for-hire carrier conducts business in the
state.
Lead plaintiff Christopher Morgan asserts that his cell phone
qualifies as a residential line under certain sections of the
Telephone Consumer Protection Act. This 1991 act regulates
robocalls or "voice broadcasting," a call delivering prerecorded
message using an automatic dialing system. The FCC does not view
all robocalls as illegal, but considers factors such as the
technology to make the call and whether the call was to a landline
or a mobile number.
Mr. Morgan filed the case last December after receiving four calls
from U.S. Xpress. Each time he did not respond to the recording
instructing him to "Press 1" to speak to a U.S. Xpress recruiter.
He says the carrier violated the TCPA by phoning his "residential
telephone line" and "cellular telephone line," but these
allegations involve the same calls to his cell phone, which he
calls "residential, cellular telephone line."
The statute's structure addresses different types of phones in
separate sections of the statute. Additionally, Congress does not
use the same language to discuss cells and residential lines,
"further demonstrating that they are not interchangeable," the
judge wrote.
The jury trial is set to begin Jan. 13, 2020. [GN]
VOLKSWAGEN AG: Faces Class Action Over Faulty Emissions Fix
-----------------------------------------------------------
Jonathan Ellis, writing for Sioux Falls Argus Leader, reports that
a Brookings couple who attempted to get their Volkswagens fixed as
part of a national class action settlement with the car
manufacturer have filed suit seeking another class action.
Allen and Jennifer Pickard agreed to have the emissions modified on
their two Volkswagen Passats following Volkswagen's settlement with
car owners and the U.S. government over allegations that it cheated
emissions tests.
For a decade, Volkswagen had touted its low-emission diesel cars,
but those emissions were based on a fraud that enabled vehicle
software systems to cheat tests. Once on the road, the vehicles
emissions exceeded levels enforced by the Environmental Protection
Agency.
In 2016, as part of a $25 billion settlement, Volkswagen agreed to
pay car owners, buy out leases and pay to have the emissions
systems fixed.
In their lawsuit, the Pickards say they chose to have their exhaust
systems fixed.
But following the modifications, neither car would start. The
vehicles, according to the lawsuit, have been in the custody of an
authorized Volkswagen mechanic "for months" but they haven't been
fixed.
"Despite numerous attempts, no authorized Volkswagen mechanic has
been able to correct the defects despite defendant's warranty and
settlement contract," the lawsuit says.
The lawsuit also says that the Pickards attempted to trade in one
of the cars but were told the value was $0 because it couldn't
start.
Volkswagen Group of America could not be reached.
The lawsuit, which seeks class action for other Volkswagen owners
who have similar problems, accuses the company of breaching its
contract and warranty. The case was originally filed in state court
in Minnehaha County, but Volkswagen has asked for the case to be
moved to federal court. [GN]
VOYA RETIREMENT: Court Dismisses Amended Dezelan ERISA Suit
-----------------------------------------------------------
In the case, DARLENE DEZELAN, individually, on behalf of the
Cedars-Sinai Medical Center 403(b) Retirement Plan, and on behalf
of all similarly situated Plans, Plaintiff, v. VOYA RETIREMENT
INSURANCE AND ANNUITY COMPANY, Defendants, Case No. 3:16-cv-01251
(VAB) (D. Conn.), Judge Victor A. Bolden of the U.S. District Court
for the District of Connecticut granted Voya's Motion to Dismiss
the Amended Complaint.
The Plaintiff brings the class action against Voya, concerning
retirement funds managed by Voya on her behalf. She brings three
claims under the Employee Retirement Income Security Act ("ERISA"),
on behalf of the Cedar-Sinai Medical Center 403(b) Retirement Plan,
in which she was a participant, as well as all other ERISA-covered
employee pension benefits plans whose assets were invested in
similar funds managed by Voya.
Ms. Dezelan, a resident of Los Angeles, California, has retirement
assets in the Cedars-Sinai Medical Center 403(b) Retirement Plan, a
Group Annuity Contract sold by Voya. Voya, a legal reserve
insurance company authorized under the insurance laws of New York
and based principally in Windsor, Connecticut, offers and sells
Group Annuity Contracts to retirement plans, and provides its
retirement plan clients an opportunity to invest into a stable
value fund, including the Plan and Contract at issue in the case.
On July 26, 2016, Ms. Dezelan filed her original action against
Voya. In her first Complaint, she alleged that Voya unlawfully
profited by setting the Credited Rate for its stable value funds
for its own benefit. Voya moved to dismiss the original Complaint
on Oct. 6, 2016. On July 6, 2017, the Court granted Voya's motion
to dismiss without prejudice because Ms. Dezelan failed to allege
she had invested in a stable account value fund offered by Voya,
and state a claim upon which relief could be granted.
On Aug. 3, 2017, Ms. Dezelan filed an Amended Complaint, renewing
the same claims. First, Ms. Dezelan alleges that Voya violated
Section 406(a)(1)(C) of ERISA, which provides that a fiduciary will
not cause a plan to engage in a transaction, if it knows that the
transaction constitutes direct or indirect furnishing of goods or
services by a "party in interest to a plan." Second, she argues
that Voya violated Section 406(b)(1) of the law, which prohibits a
fiduciary from "deal[ing] with plan assets in his own interest or
for his own account. Finally, she argues that Voya breached the
fiduciary duties it owed to the Plan, in violation of Section
404(a)(1).
Ms. Dezelan also seeks to represent a class that includes
participants in all ERISA covered employee pension benefit plans
whose plan assets were invested in Voya's Group Annuity Contract
stable value funds within the six years prior to, on or after July
26, 2010.
On Sept. 18, 2017, Voya moved to dismiss the Amended Complaint,
arguing that Ms. Dezelan failed to plausibly allege that Voya
earned excess compensation from the Spread. Ms. Dezelan, however,
argues that the Amended Complaint sufficiently alleges that Voya
depressed the Credited Rate, failed to amortize the Spread, and
kept the Spread as excessive compensation.
Judge Bolden disagrees with the Plaintiff. He finds that Ms.
Dezelan has previously conceded in oral argument that the Contract
does not allow for Voya to keep Separate Account assets, or take
the Spread, before the Contract's termination. Her allegations
fall short of stating a plausible claim. The chart of the Separate
Account's earnings from 2009-2014 merely provides further
clarification of Ms. Dezelan's allegation that the Spread existed.
It fails, however, to demonstrate that Voya kept the Spread. As a
result, these allegations do not provide more than a sheer
possibility that a defendant has acted unlawfully.
Additionally, the Contract does not require that the Separate
Account's gains and losses are amortized within six years, as Ms.
Dezelan suggests. She therefore cannot plausibly suggest that Voya
breached its fiduciary duty by not amortizing the Separate
Account's gains and losses. Ms. Dezelan's allegations thus do not
give rise to a reasonable inference of Voya's misconduct, and the
Judge therefore must grant Voya's motion to dismiss Ms. Dezelan's
claim under Section 404(a) of ERISA.
The Judge also finds that Ms. Dezelan invokes Section 406(a)(1)(C),
which prohibits transactions if the plan knows that the transaction
constitutes the payment of services between a party in interest to
a plan, and Section (b)(1), which prohibits fiduciaries from
dealing with plan assets in their own interests. The factual
allegations in the Amended Complaint, however, fall short, just as
the similar, if not the same, factual allegations did in the
original Complaint.
While ERISA's prohibited transaction provision is broad, and
demands "complete loyalty" to Plan participants, the Amended
Complaint must give rise to a reasonable inference that the
defendant committed the alleged misconduct. Ms. Dezelan's Amended
Complaint has failed to meet this burden.
Finally, under Count II, Ms. Dezelan claims Voya violated Section
406(b)(1) because in setting and resetting the Credited Rates
applicable to the Separate Account, the Defendant deals with plan
assets in its own interest or for its own account. Again, as
explained by the Judge, Ms. Dezelan does not plausibly allege that
Voya ever kept the Spread. Her claim under Section 406(b)(1)
therefore must be dismissed as well. And because the Court has
given Ms. Dezelan leave to amend her Complaint once, the Judge will
not grant further leave to amend her Complaint and will dismiss the
case with prejudice.
For the reasons he discussed, Judge Bolden granted Voya's motion to
dismiss. The Clerk of the Court is instructed to close the case.
A full-text copy of the Court's Aug. 17, 2018 Order is available at
https://is.gd/uPCodI from Leagle.com.
Darlene Dezelan, individually, on behald of the Cedars-Sinai
Medical Center 403(b) Retirement Plan, and on behalf of all
similarly situated Plans, Plaintiff, represented by Robert A.
Izard, Jr. -- rizard@ikrlaw.com -- Izard, Kindall & Raabe, LLP &
Christopher M. Barrett -- cbarrett@ikrlaw.com -- Izard, Kindall &
Raabe, LLP.
Voya Retirement Insurance and Annuity Company, Defendant,
represented by Melissa D. Hill -- melissa.hill@morganlewis.com --
Morgan, Lewis & Bockius LLP, pro hac vice, William J. Delany --
william.delany@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro
hac vice & Andrew D. O'Toole -- aotoole@otoolegroup.com -- O'Toole
O'Toole LLC.
WALGREEN EASTERN: Faces Grinblat Suit in Eastern Dist. of New York
------------------------------------------------------------------
A class action lawsuit has been filed against Walgreen Eastern Co.,
Inc. The lawsuit is captioned as Semyon Grinblat, individually and
on behalf of all others similarly situated, the Plaintiff, v.
Walgreen Eastern Co., Inc. and The Meyer Group, Inc., Case No.
1:18-cv-05207-NGG-RLM (E.D.N.Y. Sep. 15, 2018). The suit alleges
Americans with Disabilities Act violation. The case is assigned to
the Hon. Judge Nicholas G. Garaufis.
Walgreen Eastern operates drugstores. The company is based in
Bethlehem, Pennsylvania. Walgreen Eastern Co., Inc. operates as a
subsidiary of Walgreens Boots Alliance, Inc.[BN]
The Plaintiff is represented by:
Michael Grinblat, Esq.
5215 65th Place, Apt 5d
Maspeth, NY 11378
Telephone: (718) 316 7635
Facsimile: (877) 631 8040
E-mail: michael.grinblatesq@gmail.com
WAYFINDER FAMILY: Fails to Pay Minimum & OT, Walker-Smith Says
--------------------------------------------------------------
DIANE WALKER-SMITH, as an individual and on behalf of all similarly
situated employees, the Plaintiff, v. WAYFINDER FAMILY SERVICES,
INC.; a California corporation, formerly known as JUNIOR BLIND OF
AMERICA; and DOES 1 through 50, inclusive, the Defendant, Case No.
BC721324 (Cal. Super. Ct., Sept. 17, 2018), seeks to recover unpaid
minimum wage and overtime under the California Labor Code.
According to the complaint, the Defendant consistently maintained
and enforced against the Plaintiff and Aggrieved Employees these
unlawful practices and policies:
a) willfully refusing to pay the Plaintiff and Aggrieved
Employees for all hours worked, including minimum wage and
overtime;
b) failing to provide the Plaintiff and Aggrieved Employees
with meal and/or rest periods or compensation in lieu thereof;
c) willfully refusing to compensate the Plaintiff and
Aggrieved Employees wages due and owing at the time the Plaintiffs
and Aggrieved Employees' employment with the Defendants ended;
d) willfully refusing to furnish to the Plaintiff and
Aggrieved Employees accurate itemized wage statements upon payment
of wages;
e) willfully failing to reimburse the Plaintiff and Aggrieved
Employees for necessary expenditures.[BN]
The Plaintiff is represented by:
Kevin Mahoney, Esq.
Shawn Pardo, Esq.
MAHONEY LAW GROUP, APC
249 E. Ocean Blvd., Ste. 814
Long Beach, CA 90802
Telephone: (562) 590 5550
Facsimile: (562) 590 8400
e-mail: kmahonev@mahonev-law.net
spardo@mahonev-law.net
WELLS FARGO: $30MM Settlement in Fowler Suit Has Prelim Approval
----------------------------------------------------------------
In the case, VANA FOWLER, Plaintiff, v. WELLS FARGO BANK, N.A.,
Defendant, Case No. 17-cv-02092-HSG (N.D. Cal.), Judge Haywood S.
Gilliam, Jr. of the U.S. District Court for the Northern District
of California granted the Plaintiffs' motion for preliminary
approval of the class action settlement.
The Plaintiffs allege that Wells Fargo unlawfully and unfairly
collected post-payment interest on mortgages insured by the Federal
Housing Administration ("FHA") -- part of the Department of Housing
and Urban Development -- by failing to provide proper notice to
borrowers. They allege that the Defendant collected post-payment
interest on their loans. They assert that the Defendant did not
provide them with the proper notice and instead used its own
unauthorized form that does not fairly disclose the terms under
which the Defendant can collect post-payment interest or properly
explain how borrowers can avoid such charges. According to the
Plaintiffs, the Defendant's form suggests that borrowers cannot
avoid paying post-payment interest through the end of the month.
They state that as a result, they were charged interest twice --
both by the Defendant and by their new lenders after refinancing.
The Plaintiffs seek any applicable damages on behalf of a class of
nationwide borrowers.
Following extensive formal discovery and with the assistance of a
mediator, the parties entered into a settlement agreement.
The key terms are:
i. Class Definition: The Class is defined as the nationwide
group who had an FHA Insured Loan that was originated beginning
June 1, 1996 and ending Jan. 20, 2015, where (i) Wells Fargo, its
agent, or its predecessor was the mortgagee as of the date the
total amount due on the FHA-Insured Loan was brought to zero, (ii)
Wells Fargo collected Post-Payment Interest on the FHA-Insured Loan
during the applicable Limitations Period, and (iii) the borrower
made a prepayment inquiry, request for payoff figures, or tender of
prepayment but did not receive a Payoff Statement containing the
verbatim Post-Payment Interest disclosure language in the Housing
ii. Settlement Benefits: The Net Settlement Fund will consist
of $30 million, minus the costs of settlement administration,
incentive awards, and attorneys' fees and expenses. Each
settlement class member will receive a refund of a percentage of
the Net Settlement Fund proportional to the amount of post-payment
interest collected in connection with that member's loan as
compared to all other class members' post-payment interest.
iii. Class Notice: A third-party settlement administrator will
send class notices via U.S. mail to each member of the class, using
a class list provided by the Defendant.
iv. Opt-Out Procedure: The parties propose that any putative
class member who does not wish to participate in the settlement
must sign and postmark a written request for exclusion to the
settlement administrator no later than 30 days before the hearing
on the motion for final settlement approval.
v. Incentive Award: Plaintiff Fowler will apply for an
incentive award of no more than $7,500 and Plaintiff Peters will
apply for an incentive award of no more than $5,000.
vi. Attorneys' Fees and Costs: The Plaintiffs will file an
application for attorneys' fees not to exceed 25% of the settlement
fund, and costs not to exceed $70,000.
Judge Gilliam granted the Plaintiffs' motion for preliminary
approval of class action settlement. He directed the parties to
meet and confer and stipulate to a schedule of dates for each
event, which will be submitted to the Court within seven days of
the date of the Order: (i) deadline for Settlement Administrator to
mail notice to all putative class members; (ii) filing deadline for
attorneys' fees and costs motion; (iii) filing deadline for
incentive payment motion; (iv) deadline for the class members to
opt-out or object to settlement and/or application for attorneys'
fees and costs and incentive payment; (v) filing deadline for final
approval motion; and (vi) final fairness hearing and hearing on
motions. He further directed them to implement the proposed class
notice plan.
A full-text copy of the Court's April 22, 2018 Order is available
at https://is.gd/scb1S9 from Leagle.com.
Vana Fowler, individually and on behalf of all others similarly
situated, Plaintiff, represented by Adam Lewis Hoipkemier, Epps,
Holloway, DeLoach and Hoipkemier, LLC, pro hac vice, Kevin Epp ,
EHDH, LLC, pro hac vice, Michael Francis Ram, Robins Kaplan LLP,
Jeffrey William DeLoach, Epps, Holloway, DeLoach and Hoipkemier,
LLC, Samuel Joseph Strauss -- sam@turkestrauss.com -- Turke and
Strauss LLP & Susan S. Brown -- SBrown@RobinsKaplan.com -- Robins
Kaplan LLP.
Wells Fargo Bank, N.A., Defendant, represented by David S. Reidy --
dreidy@mcguirewoods.com -- McGuireWoods LLP, K. Issac deVyver --
kdevyver@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Karla
Lynn Johnson -- kjohnson@mcguirewoods.com -- McGuireWoods LLP &
Sara F. Holladay-Tobias -- stobias@mcguirewoods.com -- McGuireWoods
LLP, pro hac vice.
WESTERN BEEF RETAIL: West Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Western Beef Retail,
Inc. The case is styled as Mary West on behalf of herself and all
others similarly situated, Plaintiff v. Western Beef Retail, Inc.,
Defendant, Case No. 1:18-cv-08726 (S.D. N.Y., Sept. 24, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Western Beef is a low-cost supermarket chain located mostly in the
New York City metropolitan area. As of June 2018, the chain owns
and operates 27 stores located in the Tri-State Area, Lake Worth
(FL), and Boca Raton (FL).[BN]
The Plaintiff appears pro se.
WINS FINANCE: Desta Seeks to Certify Investors Class
----------------------------------------------------
In the lawsuit captioned MICHEL DESTA, Individually and on behalf
of all others similarly situated, the Plaintiffs, v. WINS FINANCE
HOLDINGS INC., JIANMING HAO, RENHUI MU, AND JUNFENG ZHAO, the
Defendants, Case No. 2:17-cv-02983-CAS-AGR (C.D. Cal.), the
Plaintiffs will move the Court on January 28, 2019 for an Order:
1. certifying the action as a class action on behalf of the
following class:
"all persons and entities who purchased or otherwise
acquired the common stock of Wins Finance Holdings Inc.
during the period from February 23, 2016 through June 7,
2017, inclusive."
Excluded from the Class are Defendants, all present
and former officers and directors of Wins and any
subsidiary thereof, members of such excluded persons'
families and their legal representatives, heirs,
successors or assigns and any entity which the
excluded persons controlled or in which they have or
had a controlling interest.
2. appointing Lead Plaintiffs Brian Gabrich, Christopher
Ikeocha, and Raymond Mentor as Class Representatives;
3. appointing The Rosen Law Firm, P.A. as Class Counsel; and
4. granting such other and further relief the Court may deem
just and proper.[CC]
Counsel for Plaintiffs:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785 2610
Facsimile: (213) 226 4684
E-mail: lrosen@rosenlegal.com
- and -
Yu Shi, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Ave, 34th Floor
New York, NY 10016
Telephone: (212) 686 1060
Facsimile: (212) 202 3827
E-mail: yshi@rosenlegal.com
WIRELESSPCS CA: Fails to Pay Minimum & OT Wages, Hernandez Claims
-----------------------------------------------------------------
ABBYGAIL HERNANDEZ, as an individual and on behalf of all others
similarly situated, the Plaintiff, v. WIRELESSPCS CA, LLC, a
California Limited Liability Company; and DOES 1 through 100, the
Defendants, Case No. BC721326 (Cal. Super. Ct., Sept. 17, 2018),
seeks to recover minimum wage and overtime wages under California
Labor Code.
According to the complaint, the Plaintiff began her employment with
the Defendants as a non-exempt Sales Representative in
approximately February 2016 and was later promoted to Store Manager
in approximately January 2018. During her employment with
Defendants, the Plaintiff and other non-exempt employees were not
provided with all required meal periods to which they were entitled
due to the Defendant's unlawful meal period policies/practices,
which failed to provide timely, uninterrupted, duty-free 30-minute
meal periods as required by California law. The Plaintiff was often
the only employee staffed in her store, and due to inadequate
staffing, was not authorized or permitted to take legally compliant
off-duty meal periods. Additionally, the Defendants instructed the
Plaintiff and other non-exempt employees to remain on the premises
throughout the entirety of their shifts. As a result, the Plaintiff
had to eat her meals during her shifts in between assisting
customers. On more than one occasion, the Plaintiff and other
similarly situated employees were reprimanded for attempting to eat
food while working on the floor.[BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Fletcher W. Schmidt, Esq.
Matthew K. Moen, Esq.
Brittaney D. de la Torre, Esq.
HAINES LAW GROUP, APC
222 N. Sepulveda Blvd., Ste. 1550
El Segundo, CA 90245
Telephone: (424) 292 2350
Facsimile: (424) 292 2355
E-mail: phaines@haineslawgroup.com
fschmidt@haineslawgroup.com
mmoen@haineslawgroup.com
bdelatorre@haineslawgroup.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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