/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181005.mbx C L A S S A C T I O N R E P O R T E R Friday, October 5, 2018, Vol. 20, No. 200 Headlines 63-28 WOODHAVEN: Fails to Pay Overtime Premiums, Uruena et al. Say A-PARA TRANSIT: Fails to Pay Wages & Overtime, Foster Says ACTIVISION PUBLISHING: Faces Class Action Over Guitar Hero ADS ALLIANCE: Underpays Payment Specialists, Al-Sabur Suit Says ADVANCE AUTO: Continues to Defend Delaware Class Action AEMETIS INC: Fails to Pay Proper OT, Turner Suit Alleges AFSCME CALIFORNIA: Hernandez Sues over Payroll Deductions AGGRENOX ANTITRUST LITIG.: Blue Cross Files 2nd Cir. Appeal ALASKA COMMUNICATIONS: Court Certifies Sales Workers Class ALLIANCE MEDICAL: Fails to Pay OT & Minimum Wages, de la Cruz Says ALTRIA GROUP: Tobacco Lawsuit in Document Production Phase AMAZON.COM INC: Waithaka Remanded to Worcester Superior Court AMERICAN BANK: Bid to Vacate Class Cert. Order in Kramer Denied AMERICAN FRUITS: Fails to Pay Proper OT, Sanchez Suit Alleges APEX BEHAVIORAL: Underpays Behavioral Therapists, El Faramawi Says ARADIGM CORP: Court Enters Dismissal Order in Kheder Suit ASURION LLC: Faces Class Action Lawsuit Over Alleged Pay Practices BAIRES GRILL: Lezama Suit Seeks to Recover Minimum and OT Wages BEST BUY: Can Compel Arbitration in Lovig FLSA Suit BLUE APRON: Berardi Sues over 2017 Public Offering BLUESTEM BRANDS: Conditional Certification of Norris Class Denied BOB'S RED: Oat Products Contain Carcinogen, Frankel et al. Claim CALAVERAS COUNTY, CA: To Repay Renewal Fees to Cannabis Growers CANADA: Class Action Mulled Against Toronto Over Bill 5 CANADA: Edmonton Man Files Class Action Over Unlawful Confinement CARGILL MEAT: To Pay $1.5MM to Settle Charges CEDAR GROVE: Composters Settle With Marysville Residents Suit CHARLES SCHWAB: Still Faces Crago Order Routing Suit in California CHESAPEAKE ENERGY: Settles Antitrust Class Action for $6.95MM CHESAPEAKE HOTEL: Honeywell Files ADA Suit in S.D. Florida CITY BUFFET: Fails to Pay OT to Chefs, Rodriquez Suit Alleges CLIENT SERVICES: Faces Abrahamov FDCPA Suit in E.D. New York COCRYSTAL PHARMA: Bragar Eagel Files Class Action Lawsuit COLLECTION PROFESSIONALS: Alleman Seeks to Certify Three Classes COLUMBUS RESTAURANT: FLSA Class of Workers Certified in "Didoni" CONTINENTAL CASUALTY: Dolins Suit Deal Gets Final Court Approval CONVERGENT OUTSOURCING: Burns Files FDCPA Suit in S.D. Texas COOK COUNTY, IL: Sheriff Sued over Race & Employment Bias COYOTE LOGISTICS: Kreslake Files Suit for Invasion of Privacy CYTRX CORP: Court Approves Class Settlement in Securities Suit DAIICHI SANKYO: Removes Handley et al. Suit to W.D. Oklahoma DALLAS BACKUP: Underpays Lighting Technicians, Alfaro Suit Says DEMENNO-KERDOON: Cruz Seeks Minimum and OT Wages under FLSA DIOCESE OF PITTSBURGH: Faces Sex Abuse Class-Action Lawsuit DYNAMIC PET: Mo. App. Affirms Approval of Paulson Suit Settlement ELYSEE MANAGEMENT: Breeze Files Civil Rights Class Action ENDEAVORS LLC: Faces Honeywell ADA Suit in S.D. Florida ENDO PHARMA: Settles Lidoderm Pain Patch Antitrust Class Action ENVISION CREDIT: Daniels Sues over Debt Collection Practices EQUIFAX: Did Not Receive Punishment for Consumer Data Breach FACEBOOK INC: Fails to Protect Users' Personal Info, Staggs Says FAUGNO ACQUISITION: Conn. High Court Affirms Class Certifications FIRST MOTOR GROUP: Fails to Pay Proper Wages, Navarro et al. Say FORD MOTOR: Aware of Brake Failures, Class Action Lawsuit Claims FORTUNE DIVERSIFIED: Underpays Assistant Manager, Saintcyr Says FUNKO INC: May Not Reply to Kanugonda Pending Counsel Appointment GENERAL MOTORS: Seeks Dismissal of Blind Zone Alert Class Action GEORGIA: Class Claims in Martinez Prison Condition Suit Dismissed GLOBAL POWER: Budde Appeals Dismissal of Class Action GOLDEN QUEEN: Underpays Heavy Equipment Operators, Windham Claims GRAMERCY PROPERTY: Faces Hurtado Suit over Blackstone Merger GREAT LAKES: Court Certifies Class of Student Loan Borrowers GT ADVANCED: Lead Plaintiff Moves to Certify Class in Levy Suit HELIOS & MATHESON: Faces Chang and Braxton Class Suits HERTZ CORP: Unlawfully Changed Car Rental Terms, Berry Suit Claims HESKA CORP: Court Certifies Class in Fauley TCPA Suit HIGH QUALITY: Nieves Sues over Sale of Gray Market Vehicles HUFF DISTRIBUTING: Underpays Route Drivers, Thomas Suit Alleges HUNTER WARFIELD: Smith Files FDCPA Suit in E.D. Missouri IMPINJ INC: Montemarano Sues over Drop in Share Prices INDIO, CA: To Settle Suit Over Minor Local Code Violation Fees INFUSYSTEM HOLDINGS: Parties Ink Confidential Settlement INT'L BUSINESS: Sued for Discriminating Against Older Employees J & J RICHHAVEN: Fails to Pay Minimum & Overtime Wages, Li Claims JD.COM: Law Firms Mull Class Action Over Founder's Arrest JETRO HOLDINGS: Fails to Pay Wages, Carroll Says JONATHAN NEIL: Court Certifies Class of Consumers in Brown Suit JRV SERVICES: Court Narrows Claims in Pereira FLSA Suit KIA MOTORS: Escorsia Sues over Sale of Defective 2.0 GDI Engine KOHN LAW FIRM: Certification of Class Sought in Cerveny Suit KOL BARAMA: Faces 1MM Shekels for Keeping Women Off The Air KT HOTELS: Fails to Pay Proper Wages, Shachno Suit Alleges LELAND STANFORD: Fails to Pay Proper Wages, Taylor et al. Claim M&T BANK: Court Dismisses Kim Fraud Suit MACTANZ INC: Fails to Pay Proper OT to Waiters, Nguyen Suit Says MAEFIELD DEVELOPMENT: Underpays Lease Operators, Orosco Alleges MARKETSOURCE INC: Must Produce Delgado Class Members' Contact Info MATCH GROUP: McCloskey Securities Suit Dismissed MCKESSON CORP: Conditional Certification of Hunt Class Partly OK'd MDB TRANSPORTATION: Underpays Truck Drivers, Smith Suit Alleges MDL 2804: Mercy House v. Purdue Pharma L.P., et al., Consolidated MDL 2819: Court Won't Dismiss Restasis(R) Antitrust Suit MICHIGAN: Sued Over Poor Huron Valley Prison Conditions MICROCHIP TECHNOLOGY: Levi & Korsinsky Files Class Action Lawsuit MLK EXPRESS: Huggins Seeks to Certify Drivers Class and Sub-Class NANTHEALTH INC: Certification of Two Classes Sought in Deora Suit NCB MANAGEMENT: Made Unsolicited Calls, Gogue Suit Alleges NDM HOSPITALITY: Underpays Cook Supervisors, Wright Suit Claims NEVADA: Writ of Mandamus Petition Dismissed NEW HAMPSHIRE: Mulls New Psychiatric Hospital After Complaints NOVATION COMPANIES: Oral Argument Held in NJ Carpenters Class Suit NRJM INC: Rodino Suit Notice Okayed ; Case Stayed Through March 19 ODWALLA: Faces Class Action Over Misleading Product Labels OHR PHARMACEUTICALS: Continues to Defend Class Suit in New York ONE KEY: Adero Law Firm Begins Mineworkers' Union Legal Action ONEWEST BANK: Underpays Relationship Associate Bankers, Suit Says ONTARIO: Sued Over Solitary Confinement in Jails OPEN DOOR: To File Joint Report on Scope of Release in Conde Deal PATIENT INNOVATION: Tomala Moves to Certify FLSA Class of Dancers PERSONAL CHOICE: Fails to Pay Proper Wages, Johnson Alleges PHH CORP: $5.1MM Attorneys' Fees Awarded in Dodge Suit POLLACK & ROSEN: Sproul Sues over Debt Collection Practices POP WARNER: Continues to Defend Head Trauma Class Action PUCCI'S PIZZA: Sued over Website Discriminatory Conditions QUEST PHARMACEUTICALS: SSD Sues Over Unsolicited Fax Messages RALEYS: Faces Hughes Suit in Sacramento California REAL VALUE: SSD Files TCPA Suit in Mississippi REALPAGE INC: Faces FCRA Class Action Lawsuit RECOVERY CONNECTIONS: Presson Files FLSA Suit in North Carolina RESEARCH TRIANGLE: Souders Files Suit for Invasion of Privacy RIPPLE LABS: General Counsel Quits Amid Class Actions ROCKET PHARMACEUTICALS: Appeal in Whitehead Class Suit Ongoing ROYAL SWEET: Hernandez Seeks Unpaid Minimum Wages under FLSA RP AUTOMOTIVE: Cortez Seeks OT & Minimum Wage under Labor Code SAFE STREETS: Can Compel Arbitration in Anderson FLSA Suit SAFRAN TURNEY: Faces Smith-Centz Suit Over Tip Sharing Policy SAKS AND COMPANY: Rudolph Suit Moved to S.D. New York SCRIPPS HEALTH: Underpays Supply Technicians, Angcaya Suit Says SENTRY CREDIT: Certification of Class Sought in Bencomo Suit SERVICE EMPLOYEES: Conn. Gov't Workers Sue Over Coercive Unionism SHIMADZU PRECISION: Gunn Seeks Unpaid Wages under Labor Code SIGNATURE CLEANING: Sanchez Seeks Unpaid Wages under FLSA SILVER TREE: Fails to Pay Proper Overtime Pay, Fefel Suit Says SINGAPORE: Veteran Diplomat Calls for Class Action v. Sec. 377 SIRIUS XM RADIO: Alvarez Sues over Radio Lifetime Subscriptions SLIDE FIRE: Court Dismisses Festival Shooting Negligence Suit SNAP INC: Still Faces Securities Class Action over March 2017 IPO SONY MUSIC: Court Partly Affirms Strike Order in Serova Suit SOUTHERN ILLINOIS UNIVERSITY: Judge Denies Ex-Doctor Class-Action SPRINT/UNITED: Fails to Pay Proper Wages, Burgains Suit Alleges STERLITE OF OHIO: Ohio App. Reverses Dismissal of Lunsford Suit SUNOPTA INC: Accrues $5.0MM for De Jesus Settlement at June 30 SUPERCLEAN BRANDS: Web Site Not Deaf-friendly, Sullivan Suit Says TASTE OF NATURE: Settles Class Action Over Candy Packaging TD AMERITRADE: Judge Certifies Equity Trades Class Action TELECLARO LLC: Pineda Seeks Injunction Over TCPA Violations TELLIGEN: Faces Class Action Over Employee-Purchase Deal TETRAPHASE PHARMA: Rosen Law Firm Files Class Action TIBANA FINISHING: 2 Settlement Classes Certified in Vazquez Case TIGER NATURAL: Fishman Seeks to Certify Customer Class, Sub-Class TIVITY HEALTH: Has Made Unsolicited Calls, Jeffrey Katz Alleges TOLTECA ENTERPRISES: Hackler Sues over Debt Collection Practices UBER TECHNOLOGIES: Former Engineer Supports Pay Equity Settlement UBER TECHNOLOGIES: Judge Rejects Lfyt Drivers Spying Class Action UBS AG: Class Cert Denied in Suit Over Puerto Rico Govt Bonds UMPQUA BANK: Settlement in Connolly FCRA Suit Has Prelim Approval UNITED STATES: Class Action Appropriate in Monk Case Against VA UNITED STATES: Immigrant Families File Mental Health Class Action UNITED STATES: Immigration Advocates to Fight Detention Proposal UNITED STATES: Loses Summary Judgment Bid in GM Dealers' Suit UNITED STATES: Migrant Families Sue Over "Zero Tolerance" Policy UNIV OF SOUTHERN CALIFORNIA: Sued over Doctor's Sexual Conduct USANA HEALTH: Bid to Drop Rumbaugh Class Suit Still Pending VALHI INC: NL Industries Still Faces Lawsuits over Lead Pigments VERISMA SYSTEMS: Court Won't Review McCracken Summary Ruling VILLAGE OF RIDGEWOOD: Township of Wyckoff Sues over Water Rates VITAMIN SHOPPE: Plaintiffs Voluntarily Drop Securities Class Suit VOLKSWAGEN AG: Dutch Asset Managers Join Class Action VOLKSWAGEN GROUP: Bill for Cheating Emissions May Reach EUR30BB WABASH NATIONAL: 2nd Amended Complaint Pending in Suit vs. Supreme WABTEC CORP: 9th Cir. Wants Supreme Court to Tackle Wage Issue WARRANTECH CORP: Faces Class Action Lawsuit WORLD WRESTLING: Court Dismisses Retired Wrestlers' Suit WYNN RESORTS: Still Faces Ferris Securities Class Suit in Nevada XPERTS CONSTRUCTION: Underpays Operators & Laborers, Suit Alleges YRC INC: Workers Class & 9 Subclasses Certified in Alvarez Suit ZIONS BANCORPORATION: Briefing Underway in Evans Case Appeal Asbestos Litigation ASBESTOS UPDATE: $2.1MM Awarded After Asbestos Trial ASBESTOS UPDATE: $7MM Verdict vs Jenkins Bros. in Asbestos Suits ASBESTOS UPDATE: 2nd Suit Filed Over Asbestos Cover-Up in Apartment ASBESTOS UPDATE: 33-Year Old Woman Dies of Asbestos Cancer ASBESTOS UPDATE: Appeal from $13MM Verdict in Lopez Still Pending ASBESTOS UPDATE: Asbestos Forces County Employees to Evacuate ASBESTOS UPDATE: Avon Still Defends Talc-Related Suits at June 30 ASBESTOS UPDATE: BNSF Still Defends PI Claims at June 30 ASBESTOS UPDATE: Chemours Accrues $38MM for DuPont Suits at June 30 ASBESTOS UPDATE: Colfax Had $53.8MM Accrued Liability at June 29 ASBESTOS UPDATE: Colfax Had 17,574 Unresolved Claims at June 29 ASBESTOS UPDATE: Colgate Awarded Costs on Appeal of Alfaro Suit ASBESTOS UPDATE: Companies Sued for D. Neal's Asbestos Exposure ASBESTOS UPDATE: Conn. High Ct. Upholds Award in Asbestos Suit ASBESTOS UPDATE: Contractor Finds More Asbestos in Mill Demolition ASBESTOS UPDATE: Denial of WGAST's Motions for Judgment Affirmed ASBESTOS UPDATE: Expert Testimony Precluded in Talc Lawsuit ASBESTOS UPDATE: Family Continues Fight for Asbestos Justice ASBESTOS UPDATE: Gardner Denver Had $100.8MM Reserve at June 30 ASBESTOS UPDATE: GBP260,000 Payout for Asbestos Death ASBESTOS UPDATE: Graham Corp. Still Faces Lawsuits at June 30 ASBESTOS UPDATE: Grenfell Survivors At Risk of Asbestos Poisoning ASBESTOS UPDATE: ITT Inc. Has US$858.8MM Liability at June 30 ASBESTOS UPDATE: ITT Units Had 25,000 Claims Pending at June 30 ASBESTOS UPDATE: MetLife Unit Had 1,754 New Cases Jan-June 2018 ASBESTOS UPDATE: Minerals Technologies Faces 25 Cases at July 1 ASBESTOS UPDATE: Moore Couple Sues for Failure Warn Exposure ASBESTOS UPDATE: More Asbestos Found in Minnie Water ASBESTOS UPDATE: Nelson Man Dies of Asbestosis ASBESTOS UPDATE: NL Industries Still Defends 110 Cases at June 30 ASBESTOS UPDATE: Parsons Class Lawsuit vs. Liggett Still Stayed ASBESTOS UPDATE: Richards' Bid to Supplement Expert Report Denied ASBESTOS UPDATE: Roper Tech, Units Still Defend Suits at June 30 ASBESTOS UPDATE: Sempra Energy Units Still Face Suits at June 30 ASBESTOS UPDATE: SPX Had $615.3MM Asbestos Liability at June 30 ASBESTOS UPDATE: Steel Partners Unit Has 50 Claims at June 30 ASBESTOS UPDATE: Summary Judgment vs. Mohn Affirmed on Appeal ASBESTOS UPDATE: Tenneco Faces Less Than 500 Cases at June 30 ASBESTOS UPDATE: Thomas-Fish Claims vs. Delaware Defendants Severed ASBESTOS UPDATE: WestRock Co. Had 725 PI Suits at June 30 ********* 63-28 WOODHAVEN: Fails to Pay Overtime Premiums, Uruena et al. Say ------------------------------------------------------------------ LEANDRO CASIMIRO URUENA and BUDI ANTORO, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. 63-28 WOODHAVEN INC. d/b/a BRIDIE'S BAR & GRILL, JASON BRUNETTI, RENEE BARBONE, JESSICA VALENTI, and KEVIN KILLARNEY, Jointly and Severally, the Defendants, Case No. 714300/2018 (N.Y. Sup. Ct., Sept. 18, 2018), seeks to recover unpaid overtime premiums pursuant to the New York Labor Law. According to the complaint, the Plaintiffs worked for Defendants as a line cook, dishwasher, food prep, and cleaning person at their bar and grill located in Rego Park, Queens. For their work, despite the fact that Plaintiffs were required to work well in excess of 40 hours per week, the Plaintiffs were not paid overtime premiums for hours worked over 40. The Plaintiffs also did not receive spread-of-hours premiums when they worked shifts of 10 or more hours per day and did not receive proper wage notices and wage statements. Bridie's is a casual American restaurant & sports bar offering games on 18 flat-screen TVs & weekend brunch.[BN] Attorneys for Plaintiffs and the putative class: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC www.PeltonGraham.com 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385 9700 Facsimile: (212) 385 0800 E-mail: Pelton@PeltonGraham.com Graham@PeltonGraham.com A-PARA TRANSIT: Fails to Pay Wages & Overtime, Foster Says ---------------------------------------------------------- DARRYL FOSTER on behalf of himself, all others similarly situated, and on behalf of the general public, the Plaintiffs, vs A-PARA TRANSIT CORP.; and DOES 1-100, the Defendants, Case No. R618920985 (Cal. Super. Ct., Sept. 18, 2018), seeks to recover unpaid wages and overtime wages under the California Labor Code. A-Para Transit and/or DOES have had a consistent policy and/or practice of not paying Plaintiff and its non-exempt employees for all of the hours they worked. The Defendants own and operate trucks, industrial trucks, industrial vehicles, and/or industrial work sites.[BN] Attorneys for Darryl Foster, on behalf of himself all others similarly situated, and on behalf of the general public: William Turley, Esg. David Mara Esq. Jamie Serb, Esq. Tony Roberts. Esq. Alexandra Shipman, Esq. THE TURLEY & MARA LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Telephone: (619) 234 2833 Facsimile: (619) 234 4048 ACTIVISION PUBLISHING: Faces Class Action Over Guitar Hero ---------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that consumers brought a federal class action against Activision Publishing for announcing that it will shut down Guitar Hero TV and the game's online servers on Dec. 1. ADS ALLIANCE: Underpays Payment Specialists, Al-Sabur Suit Says --------------------------------------------------------------- ARSHAD AL-SABUR, individually and on behalf of all others similarly situated, Plaintiff v. ADS ALLIANCE DATA SYSTEMS, INC., Defendant, Case No. 2:18-cv-00957-GCS-CMV (S.D. Ohio, Aug. 27, 2018) is an action against the Defendant to collect unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiff Al-Sabur was employed by the Defendant as payment specialist from July 2015 to August 2017. ADS Alliance Data Systems, Inc. provides transaction processing services, credit services, and marketing services to the retail, petroleum, financial services, utility, and hospitality markets in North America. ADS Alliance Data Systems, Inc. was formerly known as BSI Business Services, Inc. and changed its name to ADS Alliance Data Systems, Inc. in 1996. The company was founded in 1983 and is based in Plano, Texas. As of December 2, 1996, ADS Alliance Data Systems, Inc. operates as a subsidiary of Alliance Data Systems Corporation. [BN] The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com - and - Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 704-0546 Facsimile: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com - and - Shannon M. Draher, Esq. Hans A. Nilges, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: sdraher@ohlaborlaw.com hans@ohlaborlaw.com ADVANCE AUTO: Continues to Defend Delaware Class Action ------------------------------------------------------- Advance Auto Parts, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended July 14, 2018, that the company continues to defend a putative class action suit in the U.S. District Court, District of Delaware. On February 6, 2018, a putative class action on behalf of purchasers of the company's securities who purchased or otherwise acquired their securities between November 14, 2016 and August 15, 2017, inclusive (the "Class Period"), was commenced against the company and certain of its current and former officers in the United States District Court, District of Delaware. The plaintiff alleges that the defendants failed to disclose material adverse facts about the company's financial well-being, business relationships, and prospects during the alleged Class Period in violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The case is still in its preliminary stages. Advance Auto Parts said' "We strongly dispute the allegations of the complaint and intend to defend the case vigorously." Advance Auto Parts, Inc. provides automotive replacement parts, batteries, accessories, and maintenance items for domestic and imported cars, vans, sport utility vehicles, and light and heavy duty trucks. The company was founded in 1929 and is based in Roanoke, Virginia. AEMETIS INC: Fails to Pay Proper OT, Turner Suit Alleges -------------------------------------------------------- MICHAEL TURNER, individually and on behalf of all others similarly situated, Plaintiff v. AEMETIS, INC.; AEMETIS ADVANCED FUELS KEYES, INC.; and DOES 1 through 100, Defendants, Case No. 18CV333697 (Cal. Super., Santa Clara Cty., Aug. 28, 2018) is an action against the Defendant's failure to pay the Plaintiff overtime compensation for hours worked in excess of 40 hours per week. Mr. Turner was employed by the Defendants as an hourly-paid, non-exempt employee from December 2014 to July 2015. Aemetis, Inc. operates as a renewable fuels and bio-chemicals company in North America and India. The company was formerly known as AE Biofuels, Inc. and changed its name to Aemetis, Inc. in November 2011. Aemetis, Inc. was founded in 2005 and is headquartered in Cupertino, California. [BN] The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. Daniel J. Park, Esq. JUSTICE LAW CORPORATION 411 North Central Avenue, Suite 500 Glendale, CA 91203 Telephone (818) 230-7502 Facsimile (818) 230-7502 AFSCME CALIFORNIA: Hernandez Sues over Payroll Deductions --------------------------------------------------------- The case, LILIANA HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. AFSCME CALIFORNIA; AFSCME LOCAL 3299; THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; EDMUND G. BROWN, in his official capacity of Governor of the State of California; XAVIER BECERRA, in his official capacity as Attorney General of the State of California; MARK GREGERSEN; ERIC BANKS; PRISCILLA WINSLOW; ERICH SHINERS; and ARTHUR A. KRANTZ, in their official capacities as chair and members of the California Public Employment Relations Board, Defendants, Case No. 2:18-at-01413 (E.D. Cal., Aug. 31, 2018), alleges that the Defendants establish an "agency shop" where employees were compelled to pay money to AFSCME Local 3299 and its affiliates as a condition of employment. The Defendants deduct union dues from the Plaintiff's paycheck even after she clearly and unequivocally communicated to both the union and her employer that she wants to terminate her union membership and halt the payroll deductions of union-related fees. American Federation of State, County and Municipal Employees, AFL-CIO is a public service employees union that organizes for social and economic justice in the workplace. AFSCME was founded in 1932 and is based in Washington, District of Columbia. [BN] The Plaintiff is represented by: Bradley Benbrook, Esq. BENBROOK LAW GROUP, PC 400 Capitol Mall, Suite 2530 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904 E-mail: brad@benbrooklawgroup.com - and - Jonathan F. Mitchell, Esq. MITCHELL LAW PLLC 106 East Sixth Street, Suite 900 Austin, TX 78701 Telephone: (512) 686 3940 Facsimile: (512) 686-3941 E-mail: jonathan@mitchell.law AGGRENOX ANTITRUST LITIG.: Blue Cross Files 2nd Cir. Appeal ----------------------------------------------------------- Blue Cross and Blue Shield of Vermont, Inc. filed an appeal from a decision in the original case captioned as Aggrenox Antitrust Litigation, Case No. 3:14MD2516(SRU). The appeal was filed on August 20, 2018, before the U.S. Court of Appeals for the Second District and assigned Case No. 18-2474. Blue Cross appeal the following orders of the U.S. District Court for the District of Connecticut: (1) July 19, 2018 Order granting End-Payor Plaintiffs' Motion for an Order Regarding Certain Opt Out Requests; and (2) July 19, 2011 Order Granting Final Judgment. Boehringer Ingelheim Pharmaceuticals, Inc. offers human prescription medicines for the treatment of lung health, cardiovascular diseases, men's prostate health, and anti-viral therapy. The company was founded in 1971 and is based in Ridgefield, Connecticut with research and development facilities in Ohio, Virginia, Germany, and Italy. Boehringer Ingelheim Pharmaceuticals, Inc. operates as a subsidiary of Boehringer Ingelheim Corporation. The Company manufactures Aggrenox. [BN] The Appellant is represented by: Peter D. St. Phillip, Jr., Esq. Uriel Rabinovitz, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 E-mail: pstphillip@lowey.com urabinovitz@lowey.com - and – Mark D. Fischer, Esq. Robert Griffith, Esq. RAWLINGS & ASSOCIATES, PLLC One Eden Parkway LaGrange, KY 40031-1800 Telephone: (502) 587-1279 E-mail: mdf@rawlingsandassociates.com rg1@rawlingsandassociates.com ALASKA COMMUNICATIONS: Court Certifies Sales Workers Class ---------------------------------------------------------- In the case, LAURA LEE PETERSON, Individually and on Behalf of All Others Similarly Situated, and MATTHEW SMITH, HILARY FISHER, AND JENNIFER CARGILE, Plaintiffs, v. ALASKA COMMUNICATIONS SYSTEMS GROUP, INC., and ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC., dba ALASKA COMMUNICATIONS, Defendants, Case No. 3:12-cv-00090-TMB (D. Alaska), Judge Timothy M. Burgess of the U.S. District Court for the District of Alaska the Plaintiffs' Motion for Certification of a Rule 23 Class Action. Peterson, a former sales employee at ACS, sued ACS on behalf of herself, additional named Plaintiffs, and a class of potential Plaintiffs for allegedly violating the overtime provisions of the Fair Labor Standards Act ("FLSA") and the Alaska Wage and Hour Act ("AWHA"). The instant dispute centers on the Plaintiffs' allegation that ACS improperly classified them and other Client Account Managers ("CAMs") as exempt under the outside sales exemption, and that ACS failed to pay overtime in violation of state and federal law. The Plaintiffs sought, and the Court granted, conditional certification of a collective action under the FLSA. Since conditional certification, 21 individuals have opted-in to the FLSA collective action. To the date of the Order, six of these opt-in Plaintiffs have either withdrawn or been dismissed, and are no longer part of the FLSA collective action. ACS also filed a motion in limine to exclude Plaintiff Peterson's deposition errata. After briefing by the parties, the Court denied the motion without prejudice but noted that ACS may also argue that those nine changes warrant little, if any, weight on any other motions (including certification and decertification motions). The Plaintiffs filed the instant Motion on Sept. 29, 2017, seeking to certify a class based on violations of the AWHA. The Plaintiffs state that they seek to appoint Plaintiff Laura Lee Peterson and opt-in Plaintiffs Carrie Shephard and Sharon Hubbs as the class representatives of the proposed class. The Plaintiffs propose the class of all full-time exempt employees who work or worked for ACS in the job position which is currently titled Client Account Manager (I, II, or III), (formerly known as Account Executive or, in the case of the Carrier/Federal group, Senior Manager or Sr. CAM), in the ACS Anchorage office from April 30, 2010 through the date of judgment. The Plaintiffs note that they have narrowed the class definition from the proposed definition in the First Amended Complaint. ACS did not raise any objection or concern with the narrowing of the proposed class definition from the First Amended Complaint. ACS filed its Response in Opposition on Nov. 16, 2017, opposing certification of the proposed class. The Plaintiffs filed their Reply to the Response in Opposition on Jan. 24, 2018. Judge Burgess holds that the Plaintiffs have satisfied the requirements of Rule 23, and therefore granted the Motion for Certification of a Rule 23 Class. Accordingly, he granted the Plaintiffs' Motion for Class Certification of their state-law claim pursuant to Rule 23(b)(3). He appointed Michael D. Palmer of the law firm Sanford Heisler Sharp, LLP as the class counsel; and Laura Lee Peterson, Carrie Shephard, and Sharon Hubbs as the class representatives. The Judge ordered the parties to (i) contact the Court within 10 days of the Order to schedule a status conference and (ii) submit a status report and proposed scheduling order within 14 days of the Order. Prior to the scheduled status conference, the counsel will file a proposed form of a class notice consistent with Rule 23(c)(2)(B). A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/jHpHQa from Leagle.com. Laura Lee Peterson, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Mary L. Holen, Lee Holen Law Office, Michael Douglas Palmer -- mpalmer@sanfordheisler.com -- Sandford Heisler Kimpel, LLP, pro hac vice & Nicole Elizabeth Wiitala -- nwiitala@sanfordheisler.com -- Sandford Heisler Sharp, LLP. Janet Furr, Matthew Hemmer, Daniel M. McCormick, Jan Marie Carroll, Pamela Ramos, Isaac Taylor & Shawna Thomas, Plaintiffs, represented by Mary L. Holen, Lee Holen Law Office. Sharon Hubbs, Sylvija Kasper, James Kim, Carrie Shephard, aka Carrie McDermott, Travis Horn, Julie Reich & Becky Baird, Plaintiffs, represented by Mary L. Holen, Lee Holen Law Office & Michael Douglas Palmer, Sandford Heisler Kimpel, LLP, pro hac vice. Alaska Communications Systems Group, Inc., doing business as Alaska Communications, Defendant, represented by Douglas S. Parker -- dparker@littler.com -- Littler Mendelson & LeiLani J. Hart -- lhart@littler.com -- Littler Mendelson, P.C., pro hac vice. Alaska Communications Systems Holdings, Inc., doing business as Alaska Communications Defendant, represented by Douglas S. Parker, Littler Mendelson. Alaska Communications Systems Holdings, Inc., doing business as Alaska Communications, Defendant, represented by LeiLani J. Hart, Littler Mendelson, P.C., pro hac vice. ALLIANCE MEDICAL: Fails to Pay OT & Minimum Wages, de la Cruz Says ------------------------------------------------------------------ KEVIN DE LA CRUZ, on behalf of himself and others similarly situated, the Plaintiff, v. ALLIANCE MEDICAL PRODUCTS, INC., a California corporation, and DOES 1 TO 50, inclusive, the Defendants, Case No. 37-2018-00048879-CU-0E-NC (Cal. Super. Ct., Sept. 18, 2018), seeks to recover unpaid wages, overtime compensation and minimum wage under the California Labor Code. According to the complaint, the Defendants maintained and enforced against its Employees, among others, unlawful practices and policies in violation of California wage and hour laws, including: failing to pay Employees all wages, including the minimum wage and overtime; forcing Employees to work off the clock without compensation; failing to provide Employees with meal breaks or provide premium pay for missed or deficient meal breaks; and failing to provide Employees with rest periods or premium pay for missed or deficient rest periods; failing to pay Employees statutory penalties pursuant to Labor Code; failing to provide Employees with timely, accurate, and itemized wage statements; and failing to pay Employees and the State of California penalties pursuant to Labor Code. Alliance Medical Products, Inc. provides contract manufacturing and analytical services to pharmaceutical, biotechnology, and medical device companies, offering sterile liquid, ointment, suspension, gel, and emulsion aseptic filling products, etc.[BN] The Plaintiff is represented by: Anthony J. Orshansky, Esq. Justin Kachadoorian, Esq. COUNSELONE, PC 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277 9945 Facsimile: (424) 277 3727 E-mail: anthony@counseloncgroup.com justin@counseloncgroup.com ALTRIA GROUP: Tobacco Lawsuit in Document Production Phase ---------------------------------------------------------- Clare Clancy, writing for Edmonton Journal, reports that a $10-billion provincial lawsuit against tobacco companies that launched more than five years ago continues to plod along while the Alberta government considers taking action against pharmaceutical companies over opioid addictions. Litigation to recover smoking related health-care costs is in the document production phase, said Alberta Health spokesman Rob Gereghty in an email on Sept. 7, adding the province has provided more than 145,000 pages of records to the tobacco defendants and will soon deliver a second set of 370,000 pages. "A case management meeting is currently set for Sept. 21 . . . at which time the province will seek to have a court ordered timetable set for the next steps in the litigation," he said. The former Progressive Conservative government had filed suit against 14 Canadian and international tobacco firms in 2012, making a move similar to other provinces. The case has been marred in controversy after former premier Alison Redford was accused of wrongdoing in how she selected a law firm to represent the province. She was Alberta's justice minister in 2010 when she chose a consortium of law firms that included a company that employed her former husband. Redford was cleared by two separate ethics investigations in 2013 and 2017. British Columbia was the first province to take big tobacco to court in 1998 and is once again ahead of the curve after announcing that it is suing more than 40 opioid manufacturers and distributors. The class-action suit filed in the B.C. Supreme Court will aim to recoup costs associated with opioid addiction. B.C. Addictions Minister Judy Darcy told reporters the opioid crisis -- which the federal government estimates has led to nearly 4,000 overdose deaths in Canada -- is the worst public health emergency in B.C. None of the allegations made by B.C. have been proven in court. "The Government of Alberta is watching this legal action closely," said Health Minister Sarah Hoffman in an email statement on Sept. 7. "Our lawyers are reviewing the statement of claim before determining any next steps." Alberta started closely tracking deaths due to fentanyl-related overdoses in 2016, when 368 people died. This year from Jan. 1 to May 6, 228 people died from fentanyl-related overdoses, according to the latest government data. It means Alberta is on track to average 12.6 deaths per week this year, higher than the 11.2 deaths per week in 2017, when a total of 583 people died. The case is Her Majesty in Right of Alberta v. Altria Group, Inc.; B.A.T. Industries P.L.C.; British American Tobacco (Investments) Limited; British American Tobacco P.L.C.; Canadian Tobacco Manufacturers Council; Carreras Rothmans Limited; Imperial Tobacco Canada Limited; JTIMacDonald Corp.; Philip Morris International, Inc.; Philip Morris USA, Inc.; R.J. Reynolds Tobacco Company; R.J. Reynolds Tobacco International, Inc.; Rothmans Benson & Hedges Inc.; and Rothmans Inc. [GN] AMAZON.COM INC: Waithaka Remanded to Worcester Superior Court ------------------------------------------------------------- Judge Timothy S. Hillman of the U.S. District Court for the District of Massachusetts granted Plaintiff's Motion to Remand the case, BERNARD WAITHAKA, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. AMAZON.COM, INC., AMAZON LOGISTICS, INC., Defendants, Civil Action No. 17-40141-TSH (D. Mass.), to Worcester Superior Court. On Aug. 28, 2017, Waithaka filed a Complaint in Worcester Superior Court against Amazon for wage violations on behalf of delivery drivers who Waithaka contends are employed by Amazon but have been misclassified as independent contractors. Waithaka alleges that Amazon has violated Mass. Gen. L. c. 149 Sections 148, 148B, by failing to reimburse drivers for business expenses, and Mass. Gen. L. c. 151 Sections 1, 7, by failing to pay drivers for additional hours worked after a shift ended and failing to pay drivers minimum wage after expenses. In his Complaint, he seeks damages for vehicle expenses, phone expenses, minimum wage violations, unpaid wages, and attorneys' fees. On Oct. 29, 2017, Amazon filed its Notice of Removal in the Court. It claims that the case is removable under either the Class Action Fairness Act of 2005 ("CAFA") or traditional diversity jurisdiction, because the amount in controversy exceeds the jurisdictional threshold of $5 million or $75,000, respectively. Specifically, Amazon alleges that the amount in controversy, including attorneys' fees, exceeds $5,490,468 for the class, or $90,864 for the named Plaintiff. Of these amounts, Amazon estimates that $1,098,093, for the class, and $72,000, for the named Plaintiff, will come from the attorneys' fees alone. Before the Court is Waithaka's Motion to Remand the case to state court because the amount in controversy does not exceed the jurisdictional thresholds under either CAFA or traditional diversity jurisdiction. Judge Hillman finds that there is no dispute that a party may include attorneys' fees, where provided by statute, in calculating the amount in controversy. While Amazon argues that because the Plaintiff's counsel has previously spent between 943 and 1,800 hours on misclassification cases it will likely spend 1,200 hours on the case, it is equally likely that the case will be decided on summary judgment or settle early. Given that the Plaintiff's attorneys' fees through this motion totaled only $11,700, and that the Plaintiff has shown that cases under Massachusetts Independent Contractor Law are routinely decided on summary judgment, it is unreasonably speculative to assume that this will be a heavily litigated case that amasses over $600,000 in attorneys' fees. Likewise, the Judge finds that it is unreasonably speculative to assume that the attorneys' fees for the named Plaintiff alone would exceed $56,136. While it is possible that the case will be heavily litigated, the Plaintiff has put forward evidence suggesting that it is equally likely that the case will be decided on a motion for summary judgement. Because there is a presumption against removal, the case will not survive the Motion to Remand on the basis of traditional diversity jurisdiction where two courses of litigation are equally likely. Further, attorneys' fees can only be included in the calculations of amount in controversy to the extent reasonable and having over two thirds of the estimated amount come from attorneys' fees is not reasonable. Finally, because the damages that may be accrued after the date of removal in a misclassification case are speculative, the Judge declines to include future damages in the amount in controversy calculation. For these reasons, Judge Hillman granted the Plaintiff's Motion to Remand, and remanded the matter to Worcester Superior Court. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/pvc58L from Leagle.com. Bernard Waithaka, on behalf of himself and all others similarly situated, Plaintiff, represented by Shannon E. Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. & Adelaide H. Pagano -- apagano@llrlaw.com -- Lichten & Liss-Riordan, P.C. Amazon.com, Inc. & Amazon Logistics, Inc., Defendants, represented by James Walsh -- james.walsh@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, Douglas T. Schwarz -- douglas.schwarz@morganlewis.com -- Morgan, Lewis & Bockius LLP & Elizabeth M. Bresnahan -- elizabeth.bresnahan@morganlewis.com -- Morgan, Lewis & Bockius LLP. AMERICAN BANK: Bid to Vacate Class Cert. Order in Kramer Denied --------------------------------------------------------------- In the case, MARC KRAMER, KIRIL TRAJCEVSKI, and MATT NYMAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. AMERICAN BANK AND TRUST COMPANY, N.A., Defendant, Case No. 11-cv-08758 (N.D. Ill.), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied Bank's Motion to Vacate the March 31, 2017 Memorandum Opinion and Order of Judge John Z. Lee, but granted the Motion to Reconsider the same. The named Plaintiffs are former loan officers for the Bank who have brought this putative class action, alleging that the Bank failed to pay legally-mandated minimum and overtime wages, as well as commissions owed under the parties' employment contracts. In the action, the Plaintiffs have brought claims under the Fair Labor Standards Act ("FLSA"); the Illinois Minimum Wage Law ("IMWL"); and the Illinois Wage Payment and Collection Act ("IWPCA"); as well as for common law breach of contract, fraud by misrepresentation, and fraud by omission. In February 2014, Judge Lee conditionally certified a collective action under the FLSA. In November 2015, the Plaintiffs moved for certification of a class pursuant to Federal Rule of Civil Procedure 23 on all claims other than their FLSA claim, and in January 2016, the Bank moved to decertify the FLSA collective. Specifically, Plaintiffs sought to certify one class and two additional subclasses. First, with respect to the minimum wage and overtime claims under the IMWL, they sought to certify a class defined as all loan officers employed by the Bank in Illinois at any point during the three-year period preceding the filing of the Complaint through January 2011 ("IMWL Class"). Second, with respect to the allegations that the Bank "skimmed" a portion of the secondary gain off revenue generated by loan officers, they sought to certify two subclasses ("Skimming Subclasses"). With respect to the IWPCA claims, they sought to certify a subclass defined as all loan officers employed by the Bank in Illinois at any point during the ten years preceding the filing of the case through January 2011 ("IWPCA Subclass"). And with respect to the breach of contract and fraud claims, they sought to certify a subclass defined as all loan officers employed by the Bank at any point in the five years preceding the filing of the case through January 2011 ("Contract and Fraud Subclass"). In his March 31, 2017 Opinion, Judge Lee granted the Plaintiffs' motion for class certification with respect to the following classes: (1) The Illinois Minimum Wage Law Class is defined as all loan officers employed by American Bank & Trust Co. in Illinois at any point in time from Dec. 9, 2008 through January 2011. (2) The Illinois Wage Payment and Collection Act Class is defined as all loan officers employed by American Bank & Trust Co. in Illinois at any point in time from Dec. 9, 2001 through January 2011. (3) The Breach of Contract Class is defined as all loan officers employed by American Bank & Trust Co. at any point in time from Dec. 9, 2006 through January 2011. (4) The Fraud Class is defined as all loan officers employed by American Bank & Trust Co. at any point in time from Dec. 9, 2006 through January 2011. Judge Lee also denied the Bank's motion to decertify the previously conditionally-certified FLSA collective action. Prior to the March 31, 2017 decision, on Dec. 7, 2016, the Plaintiffs filed a Motion for Leave to Substitute Counsel, seeking to substitute their prior attorneys with attorneys from the law firm of Freeborn & Peters LLP. On Dec. 12, 2016, Judge Lee entered an Order granting the substitution motion, and a Freeborn & Peters attorney subsequently filed an appearance. On May 11, 2017, Judge Lee recused himself from the case indicating that one of the parties is represented by a law firm he was associated with during the past five years. The case was subsequently transferred to the Court. The Bank then filed the instant motion, requesting that the Court reconsiders or vacates Judge Lee's March 31, 2017 decision. Specifically, the Bank argues that the basis for Judge Lee's recusal was his previous affiliation with Freeborn & Peters and, because that basis existed prior to his March 31, 2017 ruling, that decision should be vacated and reconsidered by a judge who does not have a basis for recusal. Judge Wood agrees with the finding in the March 31, 2017 Opinion that the Plaintiffs have met the Rule 23(a) and Rule 23(b)(3) for each proposed class. She adopts the conclusion in the March 31, 2017 Opinion that the requirements of Rule 23(a) and 23(b)(3) have been met and that proceeding as a class action is a superior method for fairly and efficiently adjudicating the claims in the case. She therefore confirms the prior certification under Rule 23(b)(3) of the classes identified in the March 31, 2017 Opinion. Specifically: (1) The Illinois Minimum Wage Law Class is defined as all loan officers employed by American Bank & Trust Co. in Illinois at any point in time from Dec. 9, 2008 through January 2011. (2) The Illinois Wage Payment and Collection Act Class is defined as all loan officers employed by American Bank & Trust Co. in Illinois at any point in time from Dec. 9, 2001 through January 2011. (3) The Breach of Contract Class is defined as all loan officers employed by American Bank & Trust Co. at any point in time from Dec. 9, 2006 through January 2011. (4) The Fraud Class is defined as all loan officers employed by American Bank & Trust Co. at any point in time from Dec. 9, 2006 through January 2011. As noted in the March 31, 2017 Opinion, the analysis regarding whether to proceed as a collective action under 216(b) concerns many of the same issues addressed when determining class certification under Rule 23. The Bank's arguments in support of decertification track its arguments under Rule 23 class certification. And for the same reasons the Plaintiffs met the requirements of Rule 23, they also met their burden to show that the opt-in Plaintiffs are similarly-situated under Section 216(b). The Judge further agrees with the conclusion in the March 31, 2017 Opinion that the Bank's additional arguments in support of its motion to decertify the FLSA class and not included in its opposition to the Plaintiffs' Rule 23 motion do not justify decertification. The March 31, 2017 Opinion addresses these arguments in depth. Suffice to say, she declines to decertify the previously conditionally certified FLSA collective action. The FLSA collective action remains defined as all loan officers employed by American Bank & Trust's Mortgage Division from June 12, 2009, to the present, who were paid on a commission basis and who were not paid minimum wage or overtime compensation. For the foregoing reasons, Judge Wood denied the Bank's motion to vacate the March 31, 2017 Memorandum Opinion and Order, but granted the Bank's motion to reconsider the same, in the limited sense that she has conducted an independent assessment of the parties' arguments regarding Rule 23 class certification and decertification of the conditionally-certified FLSA collective. After doing so, she concludes that the issues covered by the March 31, 2017 Memorandum Opinion and Order were correctly decided and those rulings should stand. A full-text copy of the Court's April 24, 2018 Memorandum Opinion and Order is available at https://is.gd/iIURYS from Leagle.com. Marc Kramer, Plaintiff, represented by Angela Davis Pallozzi -- apallozzi@offitkurman.com -- Offit Kurman, P.a., pro hac vice, April Michelle Rancier -- arancier@offitkurman.com -- Offit Kurman, pro hac vice, Steven Michael Hartmann -- shartmann@freeborn.com -- Freeborn & Peters, Timothy J. McCaffrey -- tmccaffrey@freeborn.com -- Freeborn & Peters LLP, Ari Karen -- akaren@offitkurman.com -- Offit Kurman, PA, pro hac vice, Katharine Thomas Batista -- kbatista@offitkurman.com -- Offit Kurman, P.A., pro hac vice, Stanley Todman, Offit Kurman, PA, pro hac vice & Timothy Cronin Lynch -- tlynch@offitkurman.com -- Offit Kurman, pro hac vice. Kiril Trajcevski & Matt Nyman, on behalf of themselves and all other similarly situated, Plaintiffs, represented by Angela Davis Pallozzi, Offit Kurman, P.a., pro hac vice, April Michelle Rancier, Offit Kurman, pro hac vice, Steven Michael Hartmann, Freeborn & Peters, Ari Karen, Offit Kurman, PA, pro hac vice, Katharine Thomas Batista, Offit Kurman, P.A., pro hac vice, Stanley Todman, Offit Kurman, PA, pro hac vice & Timothy Cronin Lynch, Offit Kurman, pro hac vice. American Bank and Trust Company, N.A., Julie Klaus, Harry S. Coin, Sharon Wheeler & Dale Dollenbacher, Defendants, represented by Cameron A. Davidson, Heninger and Heninger, P.C. & Jeffrey David Wright -- jwright@poflegal.com -- Pappas O'Connor, P.C., pro hac vice. AMERICAN FRUITS: Fails to Pay Proper OT, Sanchez Suit Alleges ------------------------------------------------------------- MARCELO SANCHEZ, individually and on behalf of all others similarly situated, Plaintiff v. AMERICA FRUITS AND FLAVORS, LLC; MONSTER ENERGY US LLC; MONSTER ENERGY COMPANY; and DOES 1 TO 100, Defendants, Case No. BC719410 (Cal. Super., Los Angeles Cty., Aug. 28, 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. Sanchez was employed by the Defendants as hourly-paid, non-exempt employee. American Fruits and Flavors, LLC produces and supplies fruit and vegetable-based products, concentrates, and flavors for the food and beverage industry worldwide. The company was incorporated in 1975 and is based in Pacoima, California. As of April 1, 2016, American Fruits and Flavors, LLC operates as a subsidiary of Monster Beverage Corporation. [BN] The Plaintiff is represented by: Anwar D. Burton, Esq. Joseph Lavi, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001 E-mail: jlavi@lelawfirm.com aburton@lelawfirm.com APEX BEHAVIORAL: Underpays Behavioral Therapists, El Faramawi Says ------------------------------------------------------------------ BASMAH EL FARAMAWI, individually and on behalf of all others similarly situated, Plaintiff v. APEX BEHAVIORAL CONSULTING LLC; and LESLIE DEUTCHMAN, Defendants, Case No. 18-2863E (Mass. Cmmw., Suffolk Cty., Aug. 27, 2018) is an action against the Defendants to recover unpaid minimum wages, liquidated damages, attorneys' fees and costs. The Plaintiff El Faramawi was employed by the Defendants as behavioral therapist from December 16, 2016 to August 14, 2018. Apex Behavioral Consulting LLC is a Massachusetts limited liability company doing business in Boston, Massachusetts. The Company offers comprehensive behavior analysis services. [BN] The Plaintiff is represented by: Howard M. Brown, Esq. BOSTON EMPLOYMENT LAW PC 1170 Beacon St, Suite 200 Brookline, MA 02446 Telephone: (617) 566-8090 Facsimile: (617) 566-8091 E-mail: hmb@bostonemploymentlaw.com ARADIGM CORP: Court Enters Dismissal Order in Kheder Suit --------------------------------------------------------- Aradigm Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that the court has entered a stipulated order of dismissal in the putative class action suit entitled, Kevin Kheder v. Aradigm Corporation, et al. On January 11, 2018, a putative class action lawsuit, Kevin Kheder v. Aradigm Corporation, et al., No. 3:18-cv-00261, was filed in the United States District Court for the Northern District of California against the Company and two of its former officers. The suit was purportedly brought on behalf of persons and entities who acquired or otherwise purchased Aradigm common stock between the Class Period. alleges that defendants made false and misleading statements during the Class Period that artificially inflated the price of Aradigm stock. Lead plaintiff did not file an amended complaint, and instead, on May 9, 2018, the parties filed a stipulation asking the Court to dismiss the action with prejudice as to the lead plaintiff and without prejudice to other putative class members. The Court entered the stipulated order of dismissal on May 11, 2018. The case has been terminated. Aradigm Corporation, a specialty pharmaceutical company, focuses on the development and commercialization of products for the treatment and prevention of severe respiratory diseases. The company was founded in 1991 and is headquartered in Hayward, California. ASURION LLC: Faces Class Action Lawsuit Over Alleged Pay Practices ------------------------------------------------------------------ Kristine Gonzales-Abella, writing for SE Texas Record, reports that a call center employer is alleged to have required employees to work off-the-clock and failed to pay overtime wages. William Alexander filed a complaint individually and on behalf of all others similarly situated on Sept. 4 in the Houston Division of the Southern District of Texas against Asurion LLC alleging that the extended warranty insurer violated the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that he routinely worked in excess of 40 hours per workweek for the defendant without receiving compensation for all hours worked in excess of 40 per week. He alleges the defendant "has enforced a uniform company-wide policy wherein it improperly required its hourly call center employees -- plaintiff and the putative class members -- to perform work off-the-clock and without pay," the suit states. The plaintiff holds Asurion LLC responsible because the defendant allegedly required employees to clock-in only when ready to take their first call and did not pay them overtime compensation for all hours worked in excess of 40 each week. The plaintiff requests a trial by jury and seeks unpaid wages, liquidated damages, attorneys' fees, costs and interest and such other and further relief as may be necessary and appropriate. He is represented by Clif Alexander, Esq., Austin W. Anderson, Esq., Lauren E. Braddy, Esq, Alan Clifton Gordon, Esq. Carter T. Hastings, Esq. and George Schimmel, Esq. of Anderson Alexander PLLC in Corpus Christi. Houston Division of the Southern District of Texas case number 4:18-cv-03103[GN] BAIRES GRILL: Lezama Suit Seeks to Recover Minimum and OT Wages --------------------------------------------------------------- Jose Lezama, individually, and on behalf of others similarly situated v. Baires Grill, LLC, a Florida limited liability company; Baires Brickell, LLC, a Florida limited liability company; and, Baires Sunny Isles, LLC, a Florida limited liability company, Case No. 1:18-cv-23856-KMM (S.D. Fla., September 19, 2018), seeks to recover damages for alleged unpaid wages, minimum wages, overtime wages, and other relief pursuant to the Fair Labor Standards Act, Florida Statutes and the Florida Constitution. Baires Grill, LLC, is a Florida limited liability company, which is in the business of operating restaurants and bars in South Florida as a single conglomerate organized under related, closely held and operated limited liability companies using the same name. Baires Brickell, LLC, and Baires Sunny Isles, LLC, are Florida limited liability companies. Among the restaurants and bars operated by the Defendants are three located in Miami-Dade County, Florida, with locations on Lincoln Road, Brickell Avenue, Sunny Isles, and another in Weston, Broward County, Florida.[BN] The Plaintiff is represented by: Anthony F. Sanchez, Esq. ANTHONY F. SANCHEZ, P.A. 6701 Sunset Drive, Suite 101 Miami, FL 33143 Telephone: (305) 665-9211 Facsimile: (305) 328-4842 E-mail: afs@laborlawfla.com BEST BUY: Can Compel Arbitration in Lovig FLSA Suit --------------------------------------------------- In the case, NIKOLA LOVIG, Plaintiff, v. BEST BUY STORES LP, et al., Defendants, Case No. 18-cv-02807-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California compelled the Plaintiff to arbitrate on an individual basis claims one through six of his First Amended Complaint. Lovig was an employee of Best Buy Stores from approximately April 24, 2004 until May 12, 2017. On April 3, 2018, he brought an action against Best Buy as a putative class action on behalf of all persons employed by Defendants and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California during the Relevant Time Period. The state court complaint alleged the following causes of action: (1) failure to provide meal periods, (2) failure to provide rest periods, (3) failure to pay hourly wages, (4) failure to provide accurate written wage statements, (5) failure to timely pay all final wages, and (6) unfair compensation. On July 10, 2018, the Plaintiff filed a FAC, adding a seventh cause of action under the Private Attorneys General Act ("PAGA"). Effective March 15, 2016, while the Plaintiff was employed by Best Buy Stores, the Defendants implemented an arbitration policy. Over five months later, on Aug. 28, 2016, the Plaintiff's manager gave the Plaintiff a list of online training modules for her to complete, including an information module about the Arbitration Policy. The Plaintiff completed all of the training modules except the one covering arbitration. The Plaintiff at that time told his manager, Richard Arganda, that he didn't agree with arbitration agreements and wouldn't sign one with Best Buy. Arganda then went to confer with another manager, Michelle Garcia, who the Plaintiff believed to be a more senior manager. The Plaintiff alleges that Arganda then told him that there are no issues with his refusal to complete the training covering the arbitration agreement. In a retaliation complaint the Plaintiff filed with the California Labor Commissioner's Office, Retaliation Complaint Investigation Unit, at some point during or before September 2016, he alleged that, by implementing the Arbitration Policy, they are able to force him to quit the company or waive my right to sue and by making other employees agree to the 'Arbitration Policy' or be fired, they position themselves to impede/prevent me from starting a class action lawsuit against them. On Feb. 22, 2017, the Plaintiff was approached by another manager, Dragos Damien, who instructed him to complete several online training modules, pointing out specifically the training module covering the arbitration policy. The Plaintiff once again completed all of the training programs except the one covering arbitration. Later that day, Damien asked the Plaintiff whether he completed the arbitration training program. The Plaintiff informed Damien that he discussed this issue with other managers and that he would not complete the arbitration training module as he was not willing and had no desire to sign an arbitration agreement. Through the date of his termination on May 12, 2017, the Plaintiff had not signed any arbitration agreement with the Defendants. He claims that he was never made aware that by remaining employed with the Defendants, he was agreeing to an arbitration agreement. On April 3, 2018, the Plaintiff filed a complaint in Alameda County Superior Court. On May 3, 2018, the Defendants provided the Plaintiff's counsel with materials regarding the Arbitration Policy and requested that the Plaintiff stipulate to arbitrate his claims on an individual basis and dismiss the complaint. The Plaintiff's counsel did not respond. On May 11, 2018, the Defendants removed the case to the Court. On July 10, 2018, the Plaintiff filed the FAC, adding the PAGA cause of action. The Defendants move the Court for an order compelling the Plaintiff to arbitrate certain of his claims, dismissing his class claims, and staying his PAGA claim pending arbitration. Judge Hamilton compelled the Plaintiff to arbitrate on an individual basis claims one through six of his First Amended Complaint for failure to provide meal periods; failure to provide rest periods; failure to pay hourly wages; failure to provide accurate written wage statements; failure to timely pay all final wages; and unfair competition. The entire action is stayed pending resolution of the arbitration. The Plaintiff's class claims are dismissed with prejudice. The Judge finds, among other things, that the availability of the Arbitration Policy on the intranet, were clearly sufficient to provide Lovig with notice of the new policy. Lovig remained employed by Best Buy over five months beyond the effective date of the policy without raising any objection to it. His continued employment expressed agreement to and acceptance of the Arbitration Policy, even if Lovig had not known that his actions constituted acceptance. Lovig's unexpressed intentions or understandings about the policy cannot negate his outward expression of assent to its terms. He also finds that procedurally, the Arbitration Agreement was unconscionable. It was not negotiated -- it was presented as take-it-or-leave-it. As such, it was oppressive because it involved lack of negotiation or meaningful choice. Because the Plaintiff must show both procedural and substantive unconscionability -- and he fails to do so -- the agreement is not unconscionable, even when recognizing the procedural oppression and applying a sliding scale. The Arbitration Policy unambiguously applies to past, present or future Claims between an Employee/former Employee or applicant and Best Buy, that arise out of or relate in any way to the applicant's or Employee's employment application, employment and/or termination of employment with Best Buy. Elsewhere, the policy states that it requires that Employees bring in arbitration, rather than in court, any past, present or future claims, disputes, or lawsuits. The terms are clear on their face, and the Arbitration Policy applies retroactively. Finally, the Judge finds that because he agreed to arbitrate any and all non-PAGA claims on an individual basis only, the Plaintiff's class claims are dismissed with prejudice. And taking the considerations into account, the Judge finds that it is appropriate to stay Plaintiff's PAGA claim. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/yXgMnJ from Leagle.com. Nikola Lovig, on behalf of himself, all others similarly situtated, Plaintiff, represented by Shaun Setareh -- info@setarehlaw.com -- Setareh Law Group, Chaim Shaun Setareh, Setareh Law Group, Howard Scott Leviant -- scott@setarehlaw.com -- Setareh Law Group & William Matthew Pao -- william@setarehlaw.com -- Setareh Law Group. Best Buy Stores LP, a Virginia limited partnership & MN Best Buy Co Inc, a Minnesota corporation, Defendants, represented by Barbara Jean Miller -- barbara.miller@morganlewis.com -- Morgan Lewis & Bockius, LLP & Christopher J. Taylor -- christopher.taylor@morganlewis.com -- Morgan, Lewis, Bockius LLP. BLUE APRON: Berardi Sues over 2017 Public Offering -------------------------------------------------- PACUALE BERARDI, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. BLUE APRON HOLDINGS, INC., MATT SALZBERG, BRADLEY DICKERSON, BENJAMIN C. SINGER, JULIE M.B. BRADLEY, TRACEY BRITT COOL, KENNETH A. FOX, ROBERT P. GOODMAN, GARY R. HIRSHBERG and BRIAN P. KELLEY, the Defendants, Case No. 654534/2018 (N.Y. Sup. Ct., Sept. 12, 2018), seeks to recover damages caused by the Defendants' alleged violations of the Securities Act of 1933. The case is a securities class action on behalf of all persons, other than the Defendants, who acquired Blue Apron securities pursuant to the registration statement for Blue Apron's initial public offering in June last year. Blue Apron's Class A common stock trades on the New York Stock Exchange under the ticker symbol "APRN." According to the complaint, in the IPO Registration Statement and the IPO Prospectus, the Defendants made materially false and misleading statements regarding the Company's business and its operational and compliance policies. The Defendants failed to disclose known material trends that would have a material impact on net sales or revenues or income from continuing operations, and that would cause reported financial information not to be necessarily indicative of future operating results. On August 10, 2017, in connection with the release of its second quarter earnings, Blue Apron revealed it had encountered significant delays associated with ramping up production in its highly touted new factory in Linden, New Jersey. These pervasive equipment malfunctions and serious staffing issues prevented Blue Apron from attaining full production capacity at its Linden facility, which was intended to generate more than half of Blue Apron’s total production. These persistent production delays led to further delays in implementing new product initiatives that Blue Apron had hailed as crucial to customer growth and retention. Production delays also meant that the Company was forced to reduce the amount it spent on marketing since it did not make sense to add new customers that it could not service. Blue Apron is a subscription-based meal-kit delivery service founded in 2012.[BN] The Plaintiff is represented by: Mark Levine, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: (212) 687 7230 Facsimile: (212) 490 2022 BLUESTEM BRANDS: Conditional Certification of Norris Class Denied ----------------------------------------------------------------- In the case, Tina Norris, Sally Michalak, and Wendy Loepp, individually and on behalf of all others similarly situated, Plaintiffs, v. Bluestem Brands, Inc., Blair, LLC, and Does 1-10, Defendants, Case No. 16-cv-3954 (SRN/TNL) (D. Minn.), Judge Tony N. Leung of the U.S. District Court for the District of Minnesota denied the Plaintiff's Renewed Motion for Conditional Certification and Notification to All Putative Class Members Under 29 U.S.C. Section 216(b). Bluestem, a Delaware corporation headquartered in Eden Prairie, Minnesota, is a parent company to 13 e-commerce retail brands, including Appleseed's and Blair, LLC. It employs individuals at call centers as telephone customer support and salespersons. Defendant Blair, a Delaware limited liability company headquartered in Warren, Pennsylvania, operates call centers in Warren and Erie, Pennsylvania. Blair does business as Appleseed's and Orchard Brands. The Named Plaintiffs all worked for the Defendants' call center in Erie, Pennsylvania. All three, on behalf of themselves and those similarly situated, assert that they were regularly required to work a substantial amount of time off-the-clock as part of their jobs as Call Center Agents and were never compensated for this time. The Plaintiffs were required by their employer to allot time to come into the office before their scheduled shifts to boot up their computers and launch and log into all necessary programs and check for any updates or any other necessary work related information from their supervisors or the corporate office. Following this boot-up procedure, they were then allowed to pull up the Defendants' timing-keeping system and clock in. This pre-shift procedure prior to clocking in would take approximately 10 minutes per shift. The Plaintiffs assert the pre-shift boot-up procedure was integral and indispensable to the Defendants' business and integral and indispensable to the performance of Call Center Agents' principal job duties. They assert the Defendants refused to recognize the time spent performing their pre-shift boot-up procedure as compensable. The Plaintiffs filed their Second Amended Complaint on July 26, 2017,and moved contemporaneously for conditional class certification. They asked the Court to conditionally certify a collective action for unpaid wages pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA"), for telephone sales agents and customer service agents employed by Bluestem and Blair at call centers in Pennsylvania any time in the last three years who were not paid for preshift and post-shift work. The Court granted in part and denied in part the Plaintiffs' conditional class certification motion. It found that the Plaintiffs had shown only that: (1) employees at the Erie call center -- but not at the Franklin or Warren call centers -- were similarly situated; and (2) that these employees were subject to a common injury from a common policy with respect to pre-shift -- but not post-shift—work. The Court found that the Plaintiffs had presented no evidence to justify including employees from the Franklin or Warren call centers in the conditionally-certified class. The Plaintiffs objected to and appealed the First Conditional Certification Order on the grounds that it was error to decline inclusion of the Warren and Franklin call centers in the conditionally-certified class. The District Court upheld the First Conditional Certification Order's analysis and conclusions and noted, in light of the present record, that the Plaintiffs are unlikely to ultimately present evidence of a company-wide policy sufficient to warrant inclusion of the Warren and Franklin call centers in the conditionally-certified class, but permitted thenm an opportunity to present such evidence. Thus, the District Court permitted the Plaintiffs to file a renewed motion for conditional certification in the event that they obtain and file at least some evidence to sustain their burden of establishing that employees at the Franklin and Warren call centers were subject to the same unwritten policy as that alleged by the Erie employees. ThePlaintiffs have now filed their renewed conditional certification motion, seeking to add employees of the Warren and Franklin call centers to the already conditionallycertified class of employees at the Erie, Pennsylvania call center. In conjunction with this third attempt to seek conditional certification, the Plaintiffs submitted four declarations. Judge Leung concludes that without any reliable information concerning the Franklin, Pennsylvania call center, the Judge again declines to include it in the conditional class. With respect to the Warren, Pennsylvania call center, the Plaintiffs have failed to show a common injury from a common policy tying the Warren facility to the Erie facility. Absent a common policy between the Warren and Erie facilities, conditional class certification for the Warren facility remains inappropriate. Based on the foregoing, he denied the Plaintiff's Renewed Motion. Pursuant to ECF No. 172, wherein the Court granted the parties' request to cancel the settlement conference pending the Order, the Judge directed the parties will jointly contact the undersigned within seven days to reschedule the settlement conference in the matter. Failure to comply with any provision of the Order or any other prior consistent order will subject the non-complying party, non-complying counsel, and/or the party such counsel represents to any and all appropriate remedies, sanctions, and the like. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/vrT2Z5 from Leagle.com. Tina Norris, individually and on behalf of all others similarly situated, Wendy Loepp, individually and on behalf of all others similarly situated & Sally Michalak, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jacob Robert Rusch -- jrusch@johnsonbecker.com -- Johnson Becker PLLC & Molly E. Nephew -- mnephew@johnsonbecker.com -- Johnson Becker PLLC. Bluestem Brands, Inc. & Blair, LLC, Defendants, represented by Andrew B. Murphy -- andrew.murphy@FaegreBD.com -- Faegre Baker Daniels LLP & Samantha M. Rollins -- samantha.rollins@FaegreBD.com -- Faegre Baker Daniels LLP, pro hac vice. BOB'S RED: Oat Products Contain Carcinogen, Frankel et al. Claim ---------------------------------------------------------------- TAMARA FRANKEL, and NATASHA PARACHA, individually and on behalf of all others similarly situated, Plaintiffs v. BOB'S RED MILL NATURAL FOODS, INC., Defendants, Case No. 3:18-cv-05394-JCS (N.D. Cal., Aug. 31, 2018) alleges that the food products of the Defendant, including Steel Cut Oats and Old Fashioned Rolled Oats, contain glyphosate which causes cancer. The Plaintiff allege in the complaint that recent testing confirmed that the Steel Cut Oats and Old Fashioned Rolled Oats contain glyphosate, which the World Health Organization classifies as a "probably carcinogenic to humans." Glyphosate is even more dangerous for children, whose bodies are more sensitive to exposure, leaving them more vulnerable to carcinogens. Had Plaintiff known that the Defendant's food products contained glyphosate, she would never have purchased them. Bob's Red Mill Natural Foods, Inc. produces whole grain and gluten-free foods. Bob's Red Mill Natural Foods, Inc. was formerly known as Moore's Natural Foods, Inc. The company was founded in 1978 and is based in Milwaukie, Oregon. [BN] The Plaintiff is represented by: Patricia N. Syverson, Esq. Manfred P. Muecke, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. 600 W. Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 798-4593 E-mail: psyverson@bffb.com mmuecke@bffb.com - and - Elaine A. Ryan, Esq. Carrie A. Laliberte, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Rd., Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 E-mail: eryan@bffb.com claliberte@bffb.com - and - Stewart M. Weltman, Esq. Todd L. McLawhorn, Esq. Michael Chang, Esq. SIPRUT PC 17 North State Street Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: sweltman@siprut.com tmclawhorn@siprut.com mchang@siprut.com CALAVERAS COUNTY, CA: To Repay Renewal Fees to Cannabis Growers --------------------------------------------------------------- Recordnet.com reports that Calaveras County announced on Sept. 6 that it will be repaying some renewal fees paid by commercial cannabis growers. In a statement, the county said it is working toward a final conclusion of the commercial cannabis program and that part of the process included the accounting and possible reimbursement of money remaining in the fee fund. "The initial reimbursement for those growers who paid a renewal registration fee will occur by October 15, 2018," the statement read. Commercial cannabis cultivation was banned in January -- a decision that affected about 200 permitted growers and many others who applied for permits after the county encouraged the industry to locate there. According to earlier news reports, each permit cost $5,000 and the county has collected more than $7 million in taxes from marijuana growers since 2016. According to the county, commercial growers who registered under the urgency ordinance adopted in May 2016 and were still operating under an "application pending" status had until June 7 to comply with the ban. "All cannabis cultivation, including caregiver cultivation is now prohibited, except for registered indoor cultivation sites of six plants or less on a parcel with a residence," according to the county website. There are 28 cultivation sites that will be notified of the availability of a refund check. In August, the law offices of Henry G. Wykowski & Associates in San Francisco and William G. Panzer of Oakland filed a civil class action lawsuit against Calaveras County, requesting the return of $12.3 million in Measure C taxes and the more than $4 million in fees collected in 2017 from cannabis cultivation businesses who participated in the Calaveras County's now defunct commercial cannabis registration program. The first court hearing is on Dec. 5 in the Calaveras Superior Court. For more information regarding the refunds, call (209) 754-6394. [GN] CANADA: Class Action Mulled Against Toronto Over Bill 5 ------------------------------------------------------- Steph Wechsler and Fatima Syed, writing for Canada's National Observer, report that Ontario Superior Court Justice Edward Belobaba was expected to make a critical decision for the future of democracy in Toronto by Sept. 10. The ruling would decide whether Ontario Premier Doug Ford's government had the authority to enforce sweeping changes to the size and structure of city council, only a few weeks before Toronto residents go to the polls in an Oct. 22 election. Mr. Ford's Tories rushed to adopt Bill 5 -- also known as the Better Local Government Act -- at Queen's Park, right before the Ontario legislature adjourned for the summer on Aug. 14. They changed the normal rules of the legislature, to limit debate and allow them to adopt it only a few weeks after it was introduced. Mr. Ford had promised to reduce the size of government to save taxpayers money during the 2018 Ontario provincial election campaign, but his party never mentioned that it was musing about this legislation, which unilaterally reduces the size of Toronto's city council from 47 members to 25. A fleet of lawyers and intervenors made their case in favour and against the bill before Belobaba on Aug. 31, with enough spectators in the room to fill one of the Ontario Superior Court's largest hearing rooms. Here's what's at stake. A long day in court After the bill's passage, a handful of parties applied for intervenor status, the first of which was Rocco Achampong, who had taken a break from his law practice to run as a municipal candidate in Ward 13. He was swiftly followed by a handful of others including the City of Toronto, and candidates Chris Moise, Jennifer Hollett, and Prabha Khosla. "I've spent more time reading factums than knocking on doors," Mr. Achampong told Justice Belobaba. The candidates argue that the legislation -- which received royal assent the day nominations closed -- interferes dramatically in an election already underway and undermines the potential for better representation for women, LGBTQ+ residents and racialized communities in local government. A coalition of lawyers fighting the province on their behalf made use of section 2B in the Charter of Rights and Freedoms to try and convince the judge that the province was violating fundamental rights through the timing of its actions. This section of the Charter says that freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication are fundamental rights under Canada's Constitution.. Heather Ann McConnell, one of the lawyers at the firm representing a spate of intervenors including WomenWinTO, argued that the bill would "not only (freeze) access, it further disadvantages them." The ward structure, to be changed by the legislation, was the result of an $800,000 review process, the court heard, undertook while the late mayor Rob Ford and his brother, now Premier Ford, were on council and in support. "Voter parity was not the motive," said Mr. Achampong, of the province's legal argument that the 25-ward system would achieve a preferable type of representation. Lawyers challenging the law made note that there is no evidence to support that a 25-member council would be more effective than a 47-member one, nor of the premier's estimate of $25 million in savings. They also suggested during the proceedings that the premier may not have asked for legal advice before tabling the bill. The city is a creation of the province under the City of Toronto Act, one that it could theoretically "destroy," noted Belobaba, assuming it doesn't infringe on Charter rights. "When governments legislate, sometimes there are winners and losers," said Robin Basu, representing the province, who also said that representation is a policy choice, rather than a constitutional imperative. Mr. Basu, along with the City of Toronto's lawyers, declined to comment for this story. Justice Belobaba acknowledged that after he renders his decision, the unfavoured party will likely appeal. 'I think it's a danger' Each is concerned about what legal precedent could be set in the conclusion of such an unprecedented legal battle. The Canadian Taxpayer Federation (CTF), an intervenor on the province's side, applied for status after the city told the court it was battling its case based on the notion of unwritten constitutional principles. These unwritten principles of "democracy and rule of law," argued the city's lawyers in their factum, are factors that should limit the province's powers, "especially in the context of legislation that purports to arbitrarily interfere with an ongoing election and thereby reduce electoral fairness." But the federation says it doesn't make sense to argue a case based on an unwritten principle. "From our perspective, to strike down validly enacted legislation on the basis of an unwritten principle, that's something that's never been done and doing it on the basis of the principal of democracy sort of flies in the face that this was a democratically elected government that was elected with a mandate to save taxpayer money," Christine Van Geyn, Ontario director at the CTF, told National Observer. She explained that the federation is intervening in the case because it has a mandate to advocate for smaller government and reducing taxpayer costs -- two objectives she says Bill 5 clearly serves. "The legislation is fully within the scope of provincial powers to enact, and we had concerns that relying on the unwritten principal to undo something that a democratically elected government had been voted in to do was going to be setting a bad constitutional precedent." The province's opponents are also concerned about what it will mean for municipalities if the province can alter their democracies on a whim. "It's actually kind of ironic that this government is holding the banner of free speech on university campuses because from a Charter perspective, an attack on a democratic campaign and an attack on your effective right to vote is a very fundamental attack on your rights to political expression," Gavin Magrath, who is representing Achampong, told National Observer. "It's just an invention that Toronto is dysfunctional and needs to be addressed. It's just an invention that 25 is better than 47. It's just invention that we're going to save $25 million a year. And it's similarly just invention that what was important to this government was establishing voter parity in the City of Toronto." As a result, explains Mr. Magrath, if the province hasn't persuaded Belobaba with its arguments, it's going to have an uphill battle in an appeal. If Justice Belobaba decides against the province on the merits of the Charter challenge and it chooses to appeal, Ontario's lawyers are going to have to prove that the province had a pressing and substantial objective in passing Bill 5, Mr. Magrath explained, one that would make the law "a reasonable response that minimally impairs democratic rights." "It looks to me that that will be absolutely impossible," he said. He noted, as did at least one of his peers in the courtroom, that no other municipality has the proportion of representatives the province is angling for, and that the premier has capriciously singled out one of its largest cities for personal reasons. If the province's power goes "untrammelled," he said, there's nothing to stop it from downloading the legislation into other local governments. Craig Scott, a professor of law at Osgoode Hall Law School of York University and a former Member of Parliament for Toronto-Danforth, believes that if the judge allows the bill to stand, "It's a blow and it basically will open the gateways to many possible future pieces of (legislation) . . . where a premier can act as dictatorially as he or she wants and interrupt any number of things that are fundamental to our collective life in a democratic or rates-based way and get away with it. "I think it's a danger," said Scott, who has been observing the proceedings. If, however, the justice rules against the bill, Scott believes he will be "standing up and doing the job that we need judges to do, which is not to be scared of saying that . . . democracy is tied to the rule of law," and not on any one leader or government. In that case, Scott believes, "it will be a brave decision but an important one." What comes next is 'definitely not well-travelled territory' The judge's decision was expected Sept. 10, a phase in this process speedily expedited in light of the amended deadline for city council candidates to register on Sept. 14. While the parties have yet to form the basis of their appeals without details of Justice Belobaba's ruling, some are preparing for what action they can take if the law stays on the books. Philip Tunley, a lawyer who has been closely monitoring the city's proceedings, says he has been discussing with candidates the possibility of a class action lawsuit if Bill 5 is upheld by the courts. Candidates, he noted, have quit their jobs to accommodate their campaigns, worked to raise funds and registered by a former deadline in compliance with the existing rules. The sudden upheaval may make them eligible for damages, says Mr. Tunley. "It's definitely not well-travelled territory," he explained, adding that "these would be novel claims but there's authority and close analogies that would support an action. The real issue is what the province would do in response to that. The law is pretty clear that the province can retroactively extinguish claims that are made, so the political question is whether Premier Ford and his government would do that." [GN] CANADA: Edmonton Man Files Class Action Over Unlawful Confinement ----------------------------------------------------------------- Jonny Wakefield, writing for Edmonton Journal, reports that an Edmonton-area man who says sheriffs held him in custody for several hours after a judge found him not guilty has filed a lawsuit, claiming the practice violated his rights. Daryl Fuhr alleges in a class action lawsuit that he was wrongfully imprisoned after his May acquittal. The sheriffs who held him claimed to be following department policy, the lawsuit alleges. Mr. Fuhr, 46, was facing a string of charges including sexual assault, unlawful confinement, pointing a firearm and assault with a weapon. He was denied bail and held at the Edmonton Remand Centre. He was acquitted of those charges by Court of Queen's Bench Justice J.H. Goss at around 4 p.m. on May 11, 2018, while additional charges were withdrawn. Mr. Fuhr, however, claims he was not immediately allowed to walk free. Alberta sheriffs, who are in charge of transporting prisoners between lock-up and court, allegedly held him for two-and-a-half hours for processing and paperwork. The sheriffs are said to have cited Alberta Sheriffs Branch practices and policies when asked to explain the detention. A statement of claim filed on Sept. 5 says there was no lawful basis to hold Mr. Fuhr after his acquittal. Specifically, the lawsuit says Mr. Fuhr's Charter rights related to arbitrary detention and cruel and unusual punishment were breached. "We're taking a run at the constitutionality of this policy," said Avnish Nanda, Mr. Fuhr's lawyer. The lawsuit seeks to include in a class action anyone who was held in custody after being found not guilty of all the charges against them -- either by acquittal, or because the charges were withdrawn or stayed -- since Sept. 5, 2016. It would also include anyone who was held in custody after receiving a sentence to be served in the community. While it does not provide specific examples, the lawsuit says other prisoners in addition to Mr. Fuhr have been returned to correctional facilities or police lock-ups for additional processing and paperwork after charges against them were extinguished, rather than being released at the courthouse. Mr. Nanda said in cases where courthouses and correctional facilities are far apart, the processing could result in people spending many hours of additional time in custody. "This practice and policy constitutes a systemic breach of the rights of the class members," the lawsuit says. Mr. Fuhr's lawsuit says he immediately objected to being taken into custody after the ruling. His lawyer, Tom Engel, requested Goss return to the courtroom. Justice Goss ordered Mr. Fuhr's immediate release once it was confirmed there were no outstanding warrants on him, the lawsuit states. However, it is alleged sheriffs continued to hold Fuhr in breach of that order. In a statement, Alberta Justice and Solicitor General spokesman Jason Maloney said they could not comment on the case specifically because it is before the courts. However, he said a number of factors go into how quickly a prisoner is released, including establishing whether there are holds on them related to other charges, whether they still have personal items or money at the correctional facility, and the proximity of the courthouse to the prison or jail. Another factor is whether the person is wearing appropriate clothing, Maloney said, saying some people might still be wearing correctional clothing, or might not have street clothing suitable to the weather. Mr. Fuhr's lawsuit seeks general and punitive damages as well as compensation for lost income, though it does not specify dollar amounts. [GN] CARGILL MEAT: To Pay $1.5MM to Settle Charges --------------------------------------------- Robert Kahn, writing for Courthouse News Service, reports that Cargill Meat Solutions will pay $1.5 million to settle charges of discriminating against African and Muslim employees, the EEOC announced on September 14. CEDAR GROVE: Composters Settle With Marysville Residents Suit ------------------------------------------------------------- KPUG 1170 reports that a Snohomish County composting company has agreed to pay more than $785,000 to settle a class-action lawsuit over bad smells from its plant. The Daily Herald reports Cedar Grove Composting agreed to the settlement with Marysville residents, saying it would also spend $1.45 million to reduce the potential for smelly emissions. A company spokeswoman says Cedar Grove has denied the suit's allegations and won a previous suit that went to trial, but it's settling to reach a resolution and to be able to focus on its business.[GN] CHARLES SCHWAB: Still Faces Crago Order Routing Suit in California ------------------------------------------------------------------ The Charles Schwab Corporation still defends itself in the Crago Order Routing 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. On July 13, 2016, a securities class action lawsuit was filed in the U.S. District Court for the Northern District of California on behalf of a putative class of customers executing equity orders through CS&Co. The lawsuit names CS&Co and CSC as defendants and alleges that an agreement under which CS&Co routed orders to UBS Securities LLC between July 13, 2011 and December 31, 2014 violated CS&Co's duty to seek best execution. Plaintiffs seek unspecified damages, interest, injunctive and equitable relief, and attorneys' fees and costs. After a first amended complaint was dismissed with leave to amend, plaintiffs filed a second amended complaint on August 14, 2017. Defendants again moved to dismiss, and in a decision issued December 5, 2017, the court denied the motion. Defendants have answered the complaint to deny all allegations, and intend to vigorously contest the lawsuit. 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. CHESAPEAKE ENERGY: Settles Antitrust Class Action for $6.95MM ------------------------------------------------------------- Tulsa World reports that Chesapeake Energy Corp. and former SandRidge Energy Inc. CEO Tom L. Ward have agreed to pay $6.95 million to settle an antitrust class-action lawsuit that claimed they conspired on lease bonuses to Oklahoma royalty owners. [GN] CHESAPEAKE HOTEL: Honeywell Files ADA Suit in S.D. Florida ---------------------------------------------------------- Chesapeake Hotel and Villas, Inc. is facing a class action lawsuit in Florida. The case is captioned as Cheri Honeywell individually and on behalf of all others similarly situated, Plaintiff v. Chesapeake Hotel and Villas, Inc. a Florida corporation, Defendant, Case No. 0:18-cv-62316-WPD (S.D. Fla., Sept. 28, 2018). The Plaintiff filed the case under the Americans with Disabilities Act in 1990. Chesapeake Hotel And Villas Inc also known as Chesapeake Resort is a privately held company in Islamorada, FL and is a Single Location business.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com CITY BUFFET: Fails to Pay OT to Chefs, Rodriquez Suit Alleges ------------------------------------------------------------- RAMON RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. CITY BUFFET, INC.; BING XI LI; and NAI R. LI, Defendants, Case No. 6:18-cv-01417-GAP-KRS (M.D Fla., Aug. 28, 2018) seeks to recover from the Defendant unpaid overtime compensation, minimum wage, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Mr. Rodriquez was employed by the Defendants as chef from January 2014 to February 2016. Buffets, Inc., doing business as Ovation Brands, develops, owns, franchises, and operates buffet restaurants. The Company provides meats, gravies and sauces, salad dressings and condiments, vegetables, prepared salads, soups, entrees, desserts, and beverages. [BN] The Plaintiff is represented by: Monica Espino, Esq. ESPINO LAW 2655 S. Le Jeune Road, Suite 802 Coral Gables, FL 33134 Telephone: (305) 704-3172 Facsimile: (305) 722-7378 CLIENT SERVICES: Faces Abrahamov FDCPA Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Client Services, Inc. under the Fair Debt Collection Practices Act. The case is styled as Daniel Abrahamov on behalf of himself and all others similarly situated, Plaintiff v. Client Services, Inc., Defendant, Case No. 1:18-cv-05449 (E.D. N.Y., Sept. 27, 2018). Client Services, Inc. operates as a customer relationship management company that offers a suite of accounts receivable management, business processing outsourcing (BPO), and healthcare solutions. It provides customer care, technical support, customer acquisition, cross sell/up-sell, customer retention, product/account activation, appointment setting/reminders, disaster support, first notice of loss, market research, customer satisfaction surveys, and multi-channel interaction management services.[BN] The Plaintiff is represented by: Daniel C Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West 12th Floor Brooklyn, NY 11201 Phone: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal COCRYSTAL PHARMA: Bragar Eagel Files Class Action Lawsuit --------------------------------------------------------- Bragar Eagel & Squire, P.C. disclosed that a class action lawsuit has been filed in the U.S. District Court of New Jersey on behalf of all persons or entities who purchased or otherwise acquired Cocrystal Pharma, Inc. (COCP) securities between September 23, 2013 through September 7, 2018 (the "Class Period"). The complaint alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) defendants were engaged in a pump-and-dump scheme to artificially inflate Cocrystal's stock price; (2) this illicit scheme would result in governmental scrutiny, including from the SEC; (3) defendants failed to abide by SEC disclosure regulations; and (4) as a result, defendants' statements about Cocrystal's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you purchased Cocrystal securities during the Class Period or continue to hold shares purchased before the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Brandon Walker, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Telephone: (212) 355-4648 Website: www.bespc.com Email: fortunato@bespc.com walker@bespc.com [GN] COLLECTION PROFESSIONALS: Alleman Seeks to Certify Three Classes ---------------------------------------------------------------- Gail Alleman asks the Court to enter an order determining that the action entitled GAIL ALLEMAN, on behalf of herself and the class members v. COLLECTION PROFESSIONALS, INC., Case No. 1:17-cv-09294 (N.D. Ill.), may proceed as a class action arising from claims based on the Fair Debt Collection Practices Act, the Illinois Collection Agency Act, and the Illinois Consumer Fraud Act. Ms. Alleman seeks to certify three classes, defined as: * With respect to Count I -- FDCPA, the class consists of (a) all individuals in Illinois, (b) who paid defendant a fee for handling an online payment (c) on or after a date 1 year prior to December 27, 2017, the date of filing of the action; * With respect to Count II -- ICAA, the class consists of (a) all individuals in Illinois, (b) who paid defendant a fee for handling an online payment (c) on or after a date 5 years prior to December 27, 2017, the date of filing of the action; and * With respect to Count III -- ICFA, the class consists of (a) all individuals in Illinois, (b) who paid defendant a fee for handling an online payment (c) on or after a date 3 years prior to December 27, 2017, the date of filing of the action. Ms. Alleman further asks that Edelman, Combs, Latturner & Goodwin, LLC, be appointed counsel for the class.[CC] The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. Julie Clark, Esq. Isabella M. Janusz, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603-1824 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jclark@edcombs.com COLUMBUS RESTAURANT: FLSA Class of Workers Certified in "Didoni" ---------------------------------------------------------------- The Hon. Cecilia M. Altonaga entered an order in the lawsuit styled ROBERTA DIDONI, et al. v. COLUMBUS RESTAURANT, LLC, et al., Case No. 1:18-cv-22325-CMA (S.D. Fla.), granting Plaintiffs Roberta Didoni and Ximena Lara's Motion to Certify 216(b) Collective Action and Facilitate Notice to Potential 216(b) Class Members. Judge Altonaga granted the Motion as follows: 1. Conditional certification for the putative class identified in paragraph one of the Amended Complaint is granted; 2. The parties shall confer and prepare a joint Notice of this lawsuit for distribution to putative class members; 3. Following Court approval of the Notice, the Defendants shall post the Notice at the Columbus Restaurant in a location regularly seen by servers at the restaurant by October 8, 2018; 4. The Defendants shall provide the names and contact information of all individuals employed as servers at Columbus Restaurant during the time period between June 1, 2015, and the date of this Order by October 8, 2018; 5. The parties shall file a proposed amended scheduling order with proposed class-related deadlines, including deadlines for the addition of class members and a deadline to file class decertification motions. Plaintiff Didoni has sought certification of this class under Section 216(b) of the Fair Labor Standards Act: All persons who worked for Defendants as servers during the three (3) years preceding this lawsuit and who were required to share their tips with their employer, to pay for impermissible business expenses, and were not paid for all hours worked, for one or more weeks during the Relevant Time Period. Plaintiff Didoni also sought certification of this class under the Florida Minimum Wage Act: All persons who worked for Defendants as servers during the five (5) years preceding this lawsuit and who were required to share their tips with their employer, to pay for impermissible business expenses, and were not paid for all hours worked, for one or more weeks during the Relevant Time Period.[CC] CONTINENTAL CASUALTY: Dolins Suit Deal Gets Final Court Approval ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 20, 2018, in the case titled Jerrold Dolins v. Continental Casualty Company, et al., Case No. 1:16-cv-08898 (N.D. Ill.), relating to a hearing held before the Honorable Gary Feinerman. The minute entry states that: -- for the reasons stated on the record, the Plaintiff's unopposed motion for final approval of class action settlement and certification of settlement class is granted; -- Plaintiff's unopposed motion for award of attorneys' fees and reimbursement of expenses, and for incentive award to named Plaintiff is granted; and -- civil case is closed.[CC] CONVERGENT OUTSOURCING: Burns Files FDCPA Suit in S.D. Texas ------------------------------------------------------------ A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is styled as Cindy Burns, individually and on behalf of a class of all others similarly situated, Plaintiff v. Convergent Outsourcing, Inc., and John Does l-25, Defendants, Case No. 4:18-cv-03502 (S.D. Tex., Sept. 28, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Convergent Outsourcing, Inc. offers business process outsourcing, revenue cycle, and receivables management services. It also provides receivables collection services to credit grantors in retail, telecommunications, and utilities industries. Convergent Outsourcing, Inc. was formerly known as ER Solutions, Inc. and changed the name to Convergent Outsourcing, Inc. in November, 2011.[BN] The Plaintiff is represented by: Jonathan David Kandelshein, Esq. The Law Office of Jonathan Kandelshein 18208 Preston Rd, Ste D-9 No. 256 Dallas, TX 75252 Phone: (646) 753-0149 Email: Jonathan.kandelshein@gmail.com COOK COUNTY, IL: Sheriff Sued over Race & Employment Bias --------------------------------------------------------- DAVID EVANS III; DAVID SHEPPARD; MARTENIA SHYNE; TABAS JACKSON; ANTOINETTE GARRETT-WILLIAMS; MONTA SERVANT; and LASHON SHAFFER, individually and on behalf of all others similarly situated, Plaintiffs v. THOMAS J. DART, SHERIFF OF COOK COUNTY; and COUNTY OF COOK, Defendants, Case No. 1:18-cv-06018 (N.D. Ill., Sept. 2, 2018) alleges employment discrimination in violation of the Civil Rights Act of 1964. The Plaintiffs were employed by the Defendants as correction officers. The Plaintiff alleges in the complaint that the Defendants has adopted facially-neutral policies, practices, and decisions of suspending non-Caucasian officers without pay pending a hearing before the Merit Board at a statistically-significant higher rate than Caucasian officers. The Plaintiffs have discovered that far more Black officers are investigated for misconduct, recommended for discipline following investigation, and suspended without pay from their careers pending Merit Board hearings, than are similarly-situated Caucasian officers who are accused of engaging in identical or similar conduct. Cook County is a county in the U.S. state of Illinois. It is the second-most populous county in the United States after Los Angeles County, California. Its county seat is Chicago, the largest city in Illinois and the third-most populous city in the United States. [BN] The Plaintiff is represented by: Cass T. Casper, Esq. TALON LAW, LLC 79 West Monroe Street, Suite 1213 Chicago, IL 60603 Telephone: (312) 351-2478 Facsimile: (312) 276-4930 E-mail: ctc@talonlaw.com - and - Arthur Gold, Esq., GOLD & ASSOCIATES, LTD. 55 West Monroe Street, #2300 Chicago, IL 60603 Telephone: (312) 473-2968 Facsimile: (312) 372-0778 E-mail: asg@gcjustice.com COYOTE LOGISTICS: Kreslake Files Suit for Invasion of Privacy ------------------------------------------------------------- KURTIS KRESLAKE, individually, and on behalf of all others similarly situated v. COYOTE LOGISTICS, LLC, and DOES 1 through 10, inclusive, Case No. 5:18-cv-01999 (C.D. Cal., September 19, 2018), accuses the Defendants of negligently contacting the Plaintiff on his cellular telephone, in violation of the Telephone Consumer Protection Act, thereby, invading his privacy. Coyote Logistics is a transportation and logistics service provider. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com CYTRX CORP: Court Approves Class Settlement in Securities Suit -------------------------------------------------------------- The United States District Court for the Central District of California issued a Judgment granting Approval on Class Action Settlement in the case captioned In Re CytRx Corporation Securities Litigation. NICHOLAS CRIHFIELD, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CYTRX CORPORATION, STEVEN A. KRIEGSMAN, and JOHN Y. CALOZ, Defendants. Case No. 2:16-CV-05519-SJO-SK. (C.D. Cal.). Lead Plaintiff Gregory Callender, on behalf of himself and the Settlement Class, and (b) defendants CytRx Corporation (CytRx), Steven A. Kriegsman (Kriegsman), and John Y. Caloz (Caloz) (Parties) have entered into a Stipulation and Agreement of Settlement (Stipulation), that provides for a complete dismissal with prejudice of the claims asserted against Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of this Court (Settlement). The Court affirms its determinations in the Preliminary Approval Order certifying, for the purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of all persons or entities who purchased or otherwise acquired CytRx Common Stock or exchange-traded CytRx Call Options, or sold exchange-traded CytRx Put Options, during the period September 12, 2014 to July 11, 2016, inclusive (Settlement Class Period) and were damaged thereby (Settlement Class). Excluded from the Settlement Class are CytRx, Steven A. Kriegsman, and John Y. Caloz, the Officers and directors of CytRx at all relevant times, members of their Immediate Families and their legal representatives, heirs, successors, or assigns and any entity in which the Defendants have or had a controlling interest. Also excluded from the Settlement Class are the persons and entities listed on Exhibit 1 hereto who or which are excluded from the Settlement Class pursuant to request. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, the Court hereby affirms its determinations in the Preliminary Approval Order certifying Lead Plaintiff as Class Representatives for the Settlement Class and appointing Lead Counsel as Class Counsel for the Settlement Class. Lead Plaintiff and Lead Counsel have fairly and adequately represented the Settlement Class both in terms of litigating the Action and for purposes of entering into and implementing the Settlement and have satisfied the requirements of Federal Rules of Civil Procedure 23(a)(4) and 23(g), respectively. Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court fully and finally approves the Settlement set forth in the Stipulation in all respects (including, without limitation: the amount of the Settlement; the Releases provided for therein; and the dismissal with prejudice of the claims asserted against Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and adequate to the Settlement Class. The Court further finds that the record is sufficiently developed and complete to have enabled the Parties to have adequately evaluated and considered their positions. Accordingly, the Settlement embodied in the Stipulation is hereby finally approved in all respects. The Parties are directed to implement, perform and consummate the Settlement in accordance with the terms and provisions contained in the Stipulation. The Action and all of the claims in any complaint asserted against Defendants in the Action by Lead Plaintiff and the other Settlement Class Members are hereby dismissed with prejudice. The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. A full-text copy of the District Court's September 17, 2018 Judgment and Order is available at https://tinyurl.com/yd8765gk from Leagle.com. Nicholas Crihfield, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay and Murray LLP, Charles Henry Linehan -- clinehan@glancylaw.com -- Glancy Prongay and Murray LLP, Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay and Murray LLP & Lionel Zevi Glancy -- lglancy@glancylaw.com -- Glancy Prongay and Murray LLP. Gregory D. Callender, Lead Plaintiff, Consol Plaintiff, represented by Robert Vincent Prongay, Glancy Prongay and Murray LLP, Charles Henry Linehan, Glancy Prongay and Murray LLP,Danielle Leigh Manning, Glancy Prongay and Murray LLP, Jonathan M. Rotter, Glancy Prongay and Murray LLP, Kara M. Wolke, Glancy Prongay and Murray LLP, Lesley F. Portnoy, Glancy Prongay and Murray LLP & Lionel Zevi Glancy, Glancy Prongay and Murray LLP. CytRx Corporation, Steven A. Kriegsman & John Y. Caloz, Defendants, represented by Allen L. Lanstra -- allen.lanstra@skadden.com -- Skadden Arps Slate Meagher and Flom LLP, Clifford H. Pearson -- cpearson@pswplaw.com -- Pearson Simon Warshaw LLP, Kasonni M. Scales -- kasonni.scales@skadden.com -- Skadden Arps Slate Meagher and Flom LLP, Michael Harrison Pearson -- mpearson@pswlaw.com -- Pearson Simon and Warshaw LLP, Neil Swartzberg -- nswartzberg@pswlaw.com -- Pearson Simon and Warshaw LLP & Winston Ping Hsiao -- hsiao2010@lawnet.ucla.edu -- Skadden Arps Slate Meagher and Flom LLP. DAIICHI SANKYO: Removes Handley et al. Suit to W.D. Oklahoma ------------------------------------------------------------ The Defendants in the case of TRACY HANDLEY; SHELLY PHILLIPS; MARGARET ADEBAYO; JANICE ATWELL; ERNEST HOPKINS; DARNELL NEWTON; BRETT RICH; and SANDEE SALMON, individually and on behalf of all others similarly situated, Plaintiffs v. DAIICHI SANKYO, INC.; DAIICHI SANKYO CO., LTD.; DAIICHI SANKYO US HOLDINGS, INC.; FOREST LABORATORIES, LLC; FOREST PHARMACEUTICALS, INC.; and FOREST RESEARCH INSTITUTE, INC., Defendants, filed a notice to remove the lawsuit from the District Court of the State of Oklahoma, County of Pottawatomie County (Case No. CJ-18-343) to the U.S. District Court for the Western District of Oklahoma on August 31, 2018, and assigned Case No. 5:18-cv-00853-F (W.D. Okla., Aug. 31, 2018). Daiichi Sankyo, Inc. develops and markets pharmaceuticals. Daiichi Sankyo, Inc. was formerly known as Sankyo Pharma Inc. and changed its name to Daiichi Sankyo, Inc. in April 2006. The company was founded in 1996 and is based in Basking Ridge, New Jersey. Daiichi Sankyo, Inc. operates as a subsidiary of Daiichi Sankyo Company, Limited. [BN] The Plaintiff is represented by: Amy Sherry Fischer, Esq. FOLIART HUFF OTTAWAY & BOTTOM 201 Robert S. Kerr Ave., 12th Floor Telephone: (405) 232-4633 Facsimile: (405) 232-3462 E-mail: amyfischer@oklahomacounsel.com DALLAS BACKUP: Underpays Lighting Technicians, Alfaro Suit Says --------------------------------------------------------------- JESUS ALFARO, individually and on behalf of all others similarly situated, Plaintiff v. DALLAS BACKUP, INC. a/k/a ONSTAGE SYSTEMS; ONSTAGE PRODUCTIONS, INC.; HYACINTH BELCHER; VIVIAN N. BELCHER; and CHARLES F. BELCHER, Defendants, Case No. 3:18-cv-02327-M (N.D. Tex., Aug. 31, 2018) is an action against the Defendants for failure to pay the Plaintiff and the class minimum wages, and overtime compensation for hours worked in excess of 40 hours per week. Mr. Alfaro was employed by the Defendants as lighting technician from August 6, 2018 to September 10, 2016. Dallas Backup, Inc. a/k/a Onstage Systems is a full-service event solutions and event production company. The Company offer design, production management, audio, lighting, video, backline, ooftops, crowd control and staging for your event needs. [BN] The Plaintiff is represented by: Robert Manteuffel, Esq. J.H. Zidell, Esq. Joshua A. Petersen, Esq. 6310 LBJ Freeway, Ste. 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: rlmanteuffel@sbcglobal.net zabogado@aol.com josh.a.petersen@gmail.com DEMENNO-KERDOON: Cruz Seeks Minimum and OT Wages under FLSA ----------------------------------------------------------- HUGO IVAN CRUZ, as an individual and on behalf of all others similarly situated, the Plaintiff, v. DEMENNO-KERDOON, a California corporation; and DOES 1 through 100, the Defendants, Case No. BC721308 (Cal. Super. Ct., Sept. 12, 2018), alleges that Defendants maintained a uniform practice and policy of instructing Plaintiff and other non-exempt employees to only record the hours for which they were scheduled to work rather than the hours actually worked. Specifically, Defendants required Plaintiff and other non-exempt employees to wear safety equipment in connection with the performance of their duties. Plaintiff and the other non-exempt employees were required and directed by Defendants to don their safety equipment prior to the start of their scheduled shifts. Therefore, Plaintiff would be required by Defendants to arrive at work approximately 10 to 15 minutes prior to the start of his scheduled shift in order to don his safety equipment. However, despite being under Defendants' direction and control during the time Plaintiff was required to don his safety equipment, Defendants only paid Plaintiff from the time his work shift was scheduled to commence and failed to pay Plaintiff for the time he was required by Defendants to don his safety equipment. Defendants did business by recycling used motor oil and antifreeze products. Defendants receive, treat, store and recycle a range of waste materials, including without limitation, used motor oil, oily waste water, waste gasoline, marine diesel oil and antifreeze products.[BN] The Plaintiff is represented by: Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. Milan Moore, Esq. LID MAN 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 DIOCESE OF PITTSBURGH: Faces Sex Abuse Class-Action Lawsuit ----------------------------------------------------------- National Catholic Reporter reports that a class-action lawsuit was filed Sept. 17 against eight Catholic dioceses in Pennsylvania demanding the dioceses provide proof that they submitted the names of all suspected predators. The lawsuit was filed in the Court of Common Pleas for Allegheny County by two people representing two classes of plaintiffs: survivors of clergy sexual abuse and children currently enrolled in Catholic schools who could be at risk of abuse, according to the lawsuit. A Pennsylvania man and a Catholic school kindergartner are the representative plaintiffs in the lawsuit. Ryan O'Connor, the adult plaintiff, represents those who were abused. O'Connor, who is Catholic and has children at Catholic school, said he was abused by a priest when he was young. The child plaintiff, representing Catholic school students, is represented by his mother, Kristen Hancock, a volunteer at her son's Catholic school. The defendants include the six dioceses at the center of the grand jury report issued in August: Pittsburgh, Allentown, Erie, Greensburg, Harrisburg, Scranton. It also targets two other dioceses that were previously investigated: the Diocese of Altoona-Johnstown, investigated by a grand jury in 2016 and the Archdiocese of Philadelphia, investigated in 2005 and 2011. Bishops named in the lawsuit are: Philadelphia Archbishop Charles Chaput and Bishops Alfred Schlert of Allentown, Mark Bartchak of Altoona-Johnstown, Lawrence Persico of Erie, Edward Malesic of Greensburg, Ronald Gainer of Harrisburg, David Zubik of Pittsburgh and Joseph Bambera of Scranton. The lawsuit claims the dioceses failed to meet their reporting obligations since only 10 of the 301 priests named as alleged sexual abusers in the grand jury report are publicly listed on Pennsylvania's Megan Law database. Although two of the priests listed in the report have been arrested, the suit says, the names of 20 others were redacted. The lawsuit asks dioceses to admit that illegal, abusive acts occurred and publicly acknowledge wrongdoing. The plaintiffs do not seek monetary damages except payment for attorney and expert-witness fees and "any and all other legal or equitable relief that the court may deem proper and just." As of Sept. 20, the only diocese to publicly issue a statement in response to the lawsuit on its website was Allentown, which said it "already has reported to law enforcement every allegation of clergy sexual abuse of which it is aware, and the diocese published a list of all diocesan priests against whom there have been credible allegations of abuse of minors."[GN] DYNAMIC PET: Mo. App. Affirms Approval of Paulson Suit Settlement ----------------------------------------------------------------- In the case, KHRISTIE REED PAULSON, et al., Objectors/Appellants, MICHAEL TAYLOR, et al., Plaintiffs/Respondents, v. DYNAMIC PET PRODUCTS, LLC, et al., Defendants/Respondents, Case No. WD81070 (Mo. App.), Judge Karen King Mitchell of the Court of Appeals of Missouri for the Western District affirmed the trial court's order approving the settlement agreement. Objectors Paulson, Rebecca Brandel, Diane Canutt, Rod Canutt, Crystal Lewis, Rene Lucht, Diane Ortman, Debra Porwoll, Kris Vosburgh, and Stephanie Brown appeal the entry of a judgment approving a class action settlement between the Plaintiffs/Class Representatives Michael Taylor, Dawn Fortner, and Catherine Gemkow, and Defendants Dynamic Pet Products, LLC, and Frick's Meat Products, Inc. The Objectors raise three arguments on appeal: (1) the court erred in approving the settlement on numerous grounds; (2) the court erred in failing to strike and then relying on a statement from the mediator; and (3) the court erred in denying Objectors' motion to intervene. On May 1, 2015, the Objectors filed a nationwide class action lawsuit in the U.S. District Court for the Southern District of California against the Defendants, alleging false and deceptive advertising with respect to the Defendants' product, "The Real Ham Bone for Dogs," in violation of state consumer protection laws. On Oct. 5, 2015, they also filed a state court action for injunctive relief on the same grounds in San Diego Superior Court. On May 16, 2016, the Plaintiffs filed a class action petition in Missouri state court, alleging several violations of the Missouri Merchandising Practices Act ("MMPA") by the Defendants insofar as their product, "The Real Ham Bone for Dogs," falsely advertised that it was safe for dogs but, in fact, was inherently dangerous to dogs, resulting in injury or death. The Defendants filed their answer in the case on Dec. 1, 2016, denying the allegations and raising thirty-six affirmative defenses. On both Feb. 16, 2017, and March 16, 2017, the parties participated in court-ordered mediation sessions for which John R. Phillips from Husch Blackwell, LLP, served as the mediator. On Jan. 16, 2017, the Plaintiffs' counsel invited the Objectors' counsel to participate in the mediation sessions in hopes of reaching a global settlement of both the Reed and Taylor cases. The Objectors' counsel attended and fully participated in both mediation sessions, wherein both the Objectors' and the Plaintiffs' counsel jointly proposed a claims-made settlement structure and a reversion of unclaimed funds to the Defendants. As a result of the mediation sessions, the parties in the underlying suit were able to reach an agreement, and on April 4, 2017, the Plaintiffs filed an amended petition identifying a nationwide class and a request for preliminary approval of a class action settlement. Attached to the request was a term sheet for the proposed settlement agreement, a draft claim form, and draft settlement notices. On April 12, 2017, the court set a hearing date of April 19, 2017, for preliminary approval of the settlement agreement. The next day, the Plaintiffs' counsel emailed the Objectors' counsel to notify of the upcoming hearing. The Objectors' counsel did not respond and did not attend the hearing for preliminary approval. Following the hearing, the court issued a preliminary order approving the settlement and setting dates for notice, opt-outs, and objections. On May 5, 2017, the Objectors filed a motion to intervene, which was denied by the trial court on June 6, 2017. On July 11, 2017, the Objectors filed their objections to the settlement agreement and notice of intent to appear at the final settlement approval hearing. Because the Objectors' opposition to the settlement was based, in part, on the allegation that the settlement was the product of collusion, the Plaintiffs filed Suggestions in Response to Objections to Settlement, which included, as an attachment, a declaration of Mediator Phillips indicating that the settlement was reached as a result of an arms-length negotiation. The Objectors filed an "Objection to Plaintiffs' and Class Counsel's Application for an Award of Attorneys' Fees and Expenses and Incentive Awards to Class Representatives," in which they argued that the declaration submitted by mediator John R. Phillips should be stricken, implying that it violated Phillips' duty of impartiality. At the final hearing, however, the Objectors did not re-assert their request to strike; accordingly, the court did not rule on the motion. Following the final approval hearing, wherein the court received argument from the Plaintiffs, the Defendants, and the Objectors, the court issued its "Final Order and Judgment," approving the settlement and dismissing the petition with prejudice. The Objectors appeal. Judge Mitchell finds that because the Objectors filed their objections to the settlement within the time frame prescribed by the trial court, they have standing to appeal even absent intervention. As such, the trial court committed no error in denying their request to intervene. Point III is denied. As for the Objectors' argument that the trial court erred in relying on Mediator Phillips's declaration, the Judge holds that Objectors have failed to meet their burden of demonstrating error insofar as the record does not reflect that the trial court relied on the declaration in reaching its conclusions. The only reference to Mediator Phillips in the final judgment is to note that he supervised two all-day mediation conferences and that he is a mediator with substantial experience in resolving complex class actions. Finally, because the Objectors participated in the mediation process and had the opportunity to raise their challenges either before or at the preliminary approval hearing, but instead chose to remain silent, their challenges are now waived. To the extent that the Objectors challenge the attorneys' fee award, which arguably was not fully known at the time of the preliminary approval hearing, those claims are not identified in the point relied on and are, therefore, waived. Point I is denied. For these reasons, Judge Mitchell concluded that the trial court committed no error in approving the settlement agreement over the Objectors' objections. She affirmed its judgment. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/l4zBfe from Leagle.com. Robert A. Horn -- rhorn@connorsodell.com -- and Joseph Kronawitter -- jkronawitter@hab-law.com -- Kansas City, MO, and Timothy G. Blood -- tblood@bholaw.com -- Leslie E. Hurst, and Jennifer L. MacPherson, San Diego, CA, Attorneys for Objectors/Appellants. Christopher S. Shank, Stephen J. Moore -- sjm@radevitolaw.com -- and David L. Heinemann -- davidh@shankmoore.com -- Mission Woods, KS, Attorneys for Plaintiffs/Respondents Michael Taylor, Dawn Fortner, and Catherine Gemkow. Daniel E. Tranen -- daniel.tranen@wilsonelser.com -- and Jason D. Johnson, Edwardsville, IL, and Steven P. Kuenzel, Washington, MO, Attorneys for Defendants/Respondents Dynamic Pet Products, LLC and Frick's Meat Products, Inc. ELYSEE MANAGEMENT: Breeze Files Civil Rights Class Action --------------------------------------------------------- A class action lawsuit has been filed against Elysee Management, Inc. The case is styled as Byron Breeze, Jr. on behalf of himself, and all similarly situated individuals, Plaintiff v. Elysee Management, Inc. a New York corporation, Defendant, Case No. 1:18-cv-08915 (S.D. N.Y., Sept. 28, 2018). The nature of suit is stated as Other Civil Rights. Elysee Management Group Inc. was founded in 1992 and is based in Rolling Hills Estates, California. The company's line of business includes operating public hotels and motels. It is located at 60 E 54th St, New York, NY 10022, United States.[BN] The Plaintiff appears pro se: Byron Breeze, Jr., Esq. 39 Broadway, Ste. 2250 New York, NY 10006 c/o Law Offices of Nolan Klein, P.A. ENDEAVORS LLC: Faces Honeywell ADA Suit in S.D. Florida ------------------------------------------------------- Endeavors, LLC is facing a class action lawsuit under the Americans with Disabilities Act. The case is styled as Cheri Honeywell individually and on behalf of all others similarly situated, Plaintiff v. Endeavors, LLC doing business as: Creekside Inn, a Florida Limited Liability Company, Defendant, Case No. 0:18-cv-62315-BB (S.D. Fla., Sept. 28, 2018). Endeavors, LLC doing business as Creekside Inn, is located in Islamorada in the heart of the Florida Keys along 1,000 ft. of unique canal front with prime dockage and deep water access.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. Jessica L.Kerr, P.A. dba The Advocacy Group 200 S.E. 6th Street, Suite 504 Fort Lauderdale, FL 33301 Phone: (954) 282-1858 Fax: (844) 786-3694 Email: service@advocacypa.com ENDO PHARMA: Settles Lidoderm Pain Patch Antitrust Class Action --------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that a federal judge on Sept. 20 finalized two class action settlements worth $270 million, ending four years of litigation over an alleged antitrust conspiracy to keep a generic form of the Lidoderm pain patch off the market. Under the terms of two deals approved on Sept. 20, drug makers Endo, Teikoku and Watson will pay $166 million to a class of direct buyer plaintiffs and $104.7 million to a class of end-payor plaintiffs. The pharmaceutical firms were sued in 2014; accused of striking an anti-competitive settlement deal in May 2012 that blocked a cheaper generic version of Lidoderm from hitting the market for more than a year. As part of that settlement, Watson agreed to delay launching its generic patch until September 2013 and to drop a pending patent suit against Endo and Teikoku, creators of the original Lidoderm painkiller. In exchange, Endo gave Watson $96 million worth of Lidoderm patches and promised not to launch its own generic patch until 7 ½ months after Watson's generic hit the market, according to the plaintiffs. Last year, Endo submitted to an injunction barring it from striking anti-competitive pacts with generic drug makers to resolve antitrust claims with the Federal Trade Commission. In February 2017, U.S. District Judge William Orrick certified two separate classes of plaintiffs -- one consisting of direct purchasers of Lidoderm and another group called end-payor plaintiffs, whose financial harm was more indirect. For the $166 million settlement with direct buyers, Endo will pay $60 million, Watson will pay $71 million, and Teikoku will forfeit $35 million. For the separate $104.7 million deal with end-payor plaintiffs, Watson will pay $41 million, Endo will pay $40 million, and Teikoku will cover a smaller share of $23 million. On Sept. 20, Orrick also approved attorneys' fees awards for each class. The judge awarded $47.3 million in attorneys' fees and costs to lawyers for the direct purchaser plaintiffs. He also approved a fees award of $34.9 million for the end-payor class, finding it justified to apply a 1.37 multiplier to the lawyers' billable hours because they "obtained a significant benefit" for the class. Orrick also approved another $3.9 million in reimbursement of litigation costs for the end-payor class. Peter Kohn, lead class counsel for the direct purchaser class, and Daniel Girard, lead class counsel for the end-payor class, did not immediately return emails seeking comment after business hours on Sept. 20. Mr. Kohn is with Faruqi & Faruqi in Jenkintown, Pennsylvania. Girard is with Girard Gibbs in San Francisco. ENVISION CREDIT: Daniels Sues over Debt Collection Practices ------------------------------------------------------------ REINA DANIELS, individually and on behalf of all others similarly situated, Plaintiff v. ENVISION CREDIT UNION, Defendant, Case No. 4:18-cv-00404-MW-CAS (N.D. Fla., Aug. 28, 2018), seek to stop the Defendant's unfair and unconscionable means to collect a debt. The case was assigned to Chief Judge Mark E. Walker and referred to Magistrate Judge Charles A. Stampelos. Envision Credit Union provides a range of financial products and services to its members. It was formerly known as North Florida Education Credit Union and changed its name to Envision Credit Union in 2000. The company was founded in 1954 and is based in Tallahassee, Florida with additional branches in Tallahassee, Chattahoochee, Marianna, and Quincy, Florida; and Bainbridge, Georgia. [BN] The Plaintiff is represented by: Jeffrey Miles Ostrow, Esq. KOPELOWITZ OSTROW ET AL - FORT LAUDERDALE FL 200 SW 1st Ave 12th Floor Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@kolawyers.com EQUIFAX: Did Not Receive Punishment for Consumer Data Breach ------------------------------------------------------------ Corrine Purtill, writing for Quartz, reports that had the stakes not been so high and the breach so egregious, Equifax's bungled response one year ago to the theft of 147 million consumers' personal data from its computer servers could have been considered comical. The credit agency kept news of the hack quiet for a month after its internal discovery, giving executives time to sell almost $2 million in shares. Once the news went public, Equifax first insisted that customers waive their right to a class-action lawsuit before accepting any credit protection; after an outcry, it backed down. A typo in a tweet from Equifax's account directed customers to a phishing site instead of the actual website the company set up to tell customers if they'd been affected, which didn't really work anyway. A year after the hack, the lack of penalties for the company's failures is equally laughable. Stock prices bounced back. Former CEO Richard Smith retired with his full $90 million package. No US federal agency has made any move to punish the company. Meanwhile, consumers' best shot at protection is still to take on the cumbersome process of freezing their credit at all three US credit agencies themselves, knowing that any identity theft that happens as a result of the hack will be on their shoulders to fix too. The one-year anniversary of the Equifax breach has frustrating parallels to the 10-year anniversary of the global financial crisis, another inauspicious milestone, with the watershed collapse of Lehman Brothers 10 years ago on Sept. 15. While many of the institutions whose missteps created the disaster have recovered and thrived in the decade since, millions of private citizens have not—people who lost homes and jobs, whose savings have still not recovered from the fallout of the crisis. US senators Elizabeth Warren and Mark Warner have introduced a bill to hold credit agencies accountable for data theft. "Companies like Equifax do not ask the American people before they collect their most sensitive information," Ms. Warren wrote in a Sept. 6 letter to the Consumer Protection Bureau and Federal Trade Commission asking for an update on their Equifax investigations. Private individuals have had to be accountable for the impact of these mistakes; it's only fair that the companies that cause them should too. [GN] FACEBOOK INC: Fails to Protect Users' Personal Info, Staggs Says ---------------------------------------------------------------- MITCH STAGGS, SANDRA ATKINS, and SHELLY FORMAN, on behalf of themselves and all others similarly situated v. FACEBOOK, INC., a Delaware corporation, Case No. 3:18-cv-05754 (N.D. Cal., September 19, 2018), alleges that the Defendant fails to take appropriate steps to safeguard its users' Personal Information from unauthorized access, aggregation, distribution and use. The class action concerns a grievous and unprecedented breach of trust and invasion of privacy by which Facebook allowed third parties, such as Cambridge Analytica, LLC, and other unknown third parties access to, and the potential unlimited use of, vast amounts of sensitive personal information, including names, birthdates, locations, photos, videos, and likes ("Personal Information") from Facebook users without their consent, allege the Plaintiffs. The Plaintiffs contend that Cambridge Analytica, through the use of one such third party app developer, obtained Personal Information from more than 87 million Facebook users, which it thereafter used to create targeted political advertising and messaging in various United States elections. Facebook, Inc., a publicly traded company, is incorporated in the state of Delaware, with its headquarters located in Menlo Park, California. Facebook is an online social media and social networking service company founded in 2004. Facebook operates a social networking website that enables users to connect, share, and communicate with each other through text, photographs, and videos as well as to interact with third party apps, such as games and quizzes on mobile devices and personal computers.[BN] The Plaintiffs are represented by: James C. Vlahakis, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 581-5456 E-mail: jvlahakis@sulaimanlaw.com FAUGNO ACQUISITION: Conn. High Court Affirms Class Certifications ----------------------------------------------------------------- In the cases, STANDARD PETROLEUM COMPANY, v. FAUGNO ACQUISITION, LLC, ET AL. KENNYNICK, LLC, ET AL., v. STANDARD PETROLEUM COMPANY, Case Nos. (SC 19874), (SC 19875) (Conn.), Judge Andrew J. McDonald of the Supreme Court of Connecticut affirmed the trial court's orders certifying class actions. Standard, the counterclaim Defendant and the Defendant, respectively, in the two cases that comprise the consolidated action, appeals from the trial court's orders certifying class actions against it. The class actions are premised on allegations that the Defendant overcharged service station operators and franchisees for gasoline products. Generally, the Defendant claims that the trial court abused its discretion in certifying the class2 because it failed to apply the "rigorous analysis" that is required before such a certification may be granted. In particular, it claims that the trial court's error is most clearly evidenced by its failure to address various elements of the causes of action and the special defenses when it determined that common issues predominated. Judge McDonal concludes that the Defendant has failed to establish that the trial court abused its discretion in ordering class certification. Kennynick and Faugno are service station operators and were franchised dealers for gasoline products supplied by the Defendant, which is a wholesale supplier. In 2009, the Plaintiffs commenced an action against the Defendant, purportedly on behalf of themselves and other persons who had been supplied with gasoline products by the Defendant. The complaint alleged that the proposed class members had been overcharged in two respects. First, it alleged that the Defendant had charged the class members the federal gasoline tax at a rate of 18.4 cents per gallon without applying a federal tax credit that would have had the effect of reducing that rate and that had been effective between Jan. 1, 2005 and Dec. 31, 2011. Second, it alleged that, at all relevant times since Sept. 27, 2004, the defendant had charged class members the Connecticut gross receipts tax on the basis of the price of gasoline as delivered, and thus had improperly charged for state tax on the defendant's profit (including the federal tax overcharge) and delivery. In reliance on these allegations, the six count complaint set forth claims of (1) breach of contract, (2) unjust enrichment, (3) violation of the Connecticut Petroleum Franchise Act, (4) violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), (5) violation of the good faith requirement under the Uniform Commercial Code, and (6) misrepresentation. The Plaintiffs sought relief including money damages for past losses, injunctive relief prohibiting the Defendant from conduct that would cause future losses, and punitive damages. Shortly thereafter, the Defendant commenced a separate action against Faugno, alleging breach of contract. In response, Faugno filed a counterclaim, also styled as a proposed class action, which in all material respects mirrored the Plaintiffs' complaint in the earlier action. Pursuant to the Plaintiffs' motions, and in the absence of objection from the Defendant, the trial court consolidated the two actions. In 2015, after the Plaintiffs had obtained compliance with discovery requests, they moved for orders certifying the action as a class action pursuant to Practice Book Section 9-9. The Defendant filed an opposition, which included a supporting affidavit by its vice president. The trial court held a hearing on the motion and reserved decision. Thereafter, the trial court issued orders certifying a class action on all counts. The orders defined the class as all entities or persons who: (i) purchased gasoline from the Defendant during the period Sept. 27, 2004 to date; (ii) were charged federal gasoline tax at a rate of 18.4 cents per gallon on such gasoline purchases; (iii) did not receive the federal tax credit, while it was in effect, on such gasoline purchases; and (iv) were charged state gross receipts tax on such gasoline purchases based on the price of gasoline, as delivered. The orders also approved the Plaintiffs as class representatives and their counsel as the class counsel. The orders indicated that further articulation would follow. The trial court thereafter issued a memorandum of decision setting forth that articulation. In that decision, the trial court noted that the Plaintiffs had identified at least 81 of the Defendant's gasoline customers during the relevant time period as potential members of the proposed class: 44 had supply contracts with the Defendant and 37 had purchased gasoline on an as invoiced basis. The court pointed to the fact that all of the potential class members had received invoices from the Defendant. Largely in reliance on the facts and legal issues cited in that analysis, the court also concluded that each of the policy considerations under Practice Book Section 9-8 weighed in favor of allowing the action to proceed as a class action. The Defendant appealed from the orders certifying the class. After the court issued its memorandum of decision, the Defendant did not seek any further articulation. On appeal, the Defendant contends that the trial court abused its discretion in granting class certification because it failed to apply the requisite "rigorous analysis" to each class certification requirement. Instead, the Defendant contends, the trial court merely required some showing to support each requirement, engaged in a cursory review of the claims and evidence, and disregarded certain evidence, elements, and defenses. Judge McDonald concludes that, in light of the claims and arguments advanced to the trial court, its grant of class certification was not an abuse of discretion. Insofar as he can glean specific arguments directed at specific requirements, he addresses them and concludes that none merits reversal of the trial court's decision. None of the Defendant's contentions persuades him that the trial court abused its discretion in concluding that the class certification requirements of Practice Book Section 9-7 were met. In addition, the Judge finds that the trial court's ultimate determination that predominance was met was not an abuse of discretion. The Defendant's position effectively would impose the burden on the Plaintiffs to prove whether each conclusory defense includes common issues and/or are subject to common proof as to whichever counts they conceivably might be relevant. He is aware of no authority that supports such a proposition, and he squarely rejects it. Finally, the Defendant's additional argument, in effect, contends that the totality of the trial court's purportedly improper rulings regarding the other class action requirements evidences why a class action is not the superior mechanism to resolve the issue. In light of the Court's prior determinations that the trial court's conclusions were not an abuse of discretion, the Judge holds that no further response is required. For these reasons, Judge McDonald affirmed the orders granting the class certification. A full-text copy of the Court's Aug. 28, 2018 Opinion is available at https://is.gd/aGNW92 from Leagle.com. Mary E. R. Bartholic -- mbartholic@cbshealaw.com -- with whom was Thomas W. Witherington -- witherington@cbshealaw.com -- for the appellant (plaintiff in Docket No. SC 19874 and defendant in Docket No. SC 19875). John J. Morgan, for the appellees (named defendant in Docket No. SC 19874 and plaintiffs in Docket No. SC 19875). FIRST MOTOR GROUP: Fails to Pay Proper Wages, Navarro et al. Say ---------------------------------------------------------------- HECTOR NAVARRO; ANTHONY PINKINS; KEVIN MALONE; and RUBEN CASTRO, individually and on behalf of all others similarly situated, Plaintiffs v. FIRST MOTOR GROUP OF ENCINO, LLC; ENCINO MOTORCARS, LLC TROPHY AUTOMOTIVE DEALER GROUP LLC; and DOES 1 through 50, inclusive, Defendants, Case No. BC719406 (Cal. Super., Los Angeles Cty., Aug. 27, 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 Plaintiffs were employed by the Defendants as hourly, non-exempt employees. First Motor Group of Encino, LLC is a limited liability company and conduct business in the State of California. [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 FORD MOTOR: Aware of Brake Failures, Class Action Lawsuit Claims ---------------------------------------------------------------- Jeremy Finley, writing for WSMV Nashville, reports that a class action lawsuit blames Ford Motor Company for having knowledge of a safety defect and not recalling all of the impacted trucks. An ongoing News4 I-Team investigation found more than 200 drivers across the nation complaining their brakes suddenly failed in their 2015 or 2016 Ford F-150 pickup trucks. Our investigation found repair invoices and government records indicating that brake fluid from the master cylinder was leaking and causing the failures. In the class action suit was filed on behalf of drivers in Florida, Alabama, Georgia and Texas who say they all experienced frightening brake failures due to a defect with an unreasonable safety risk. Their complaints echo what Chad Wampler described happened to him. The Williamson county man said he was driving his Ford F150 pickup truck when the brakes suddenly failed without warning. "You feel like you could have died?" asked the News4 I-Team. "Most definitely," Wampler said. The class action lawsuit zeroes in as the leak in the master cylinder as the problem, citing internal emails that show Ford knew about the problem for some time. The lawsuit claims the leak decreased the truck's ability to brake by 75 percent. The suit also reads that Ford issued an inadequate recall when it brought in the 2013 and 2014 models for the same problem, but did not include the 2015 and 2016 models to be repaired. Ford has not yet responded to the lawsuit in court filings. A spokeswoman for Ford has repeatedly denied our requests for an interview, only writing in an emailed statement that when the data indicates a recall is needed, they will act quickly on behalf of their customers.[GN] FORTUNE DIVERSIFIED: Underpays Assistant Manager, Saintcyr Says --------------------------------------------------------------- CRISTINA SAINTCYR, individually and on behalf of all others similarly situated, Plaintiff v. FORTUNE DIVERSIFIED, INC. d/b/a BURGER KING CORPORATION, Defendant, Case No. 77143224 (Fla. Cir., Miami-Dade Cty., Aug. 28, 2018) seeks to recover from the Defendant unpaid overtime compensation, minimum wage, interest, liquidated damages, reasonable attorneys' fees, and costs. The Plaintiff Saintcyr was employed by the Defendant as assistant manager from the year 2015 to December 2017. Fortune Diversified, Inc. d/b/a Burger King Corporation a corporation organized under the laws of the State of Florida. [BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. Max L. Horowitz, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com mhorowitz@rgpattorneys.com FUNKO INC: May Not Reply to Kanugonda Pending Counsel Appointment ----------------------------------------------------------------- In the case, SATYANARAYANA KANUGONDA, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. FUNKO, INC, BRIAN MARIOTTI, RUSSELL NICKEL, KEN BROTMAN, GINO DELLOMO, CHARLES DENSON, DIANE IRVINE, ADAM KRIGER, RICHARD MCNALLY, GOLDMAN SACHS & CO., J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, PIPER JAFFRAY & CO., JEFFERIES LLC; STIFFEL, NICOLAUS & COMPANY, INCORPORATED, BMO CAPITAL MARKETS CORP., and SUNTRUST ROBINSON HUMPHREY, INC., Defendants, Case No. 2:18-cv-00812-RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, has issued a stipulated order extending time to answer, move or otherwise respond pending appointment of the Lead Plaintiff and the Lead Counsel. On June 4, 2018, the Plaintiff filed the complaint in the putative class action against the Funko Defendants and the Underwriter Defendants. The Complaint alleges violations of Sections 11, 12, and 15 of the federal Securities Act of 1933, and is subject to the Lead Plaintiff procedures of the Private Securities Litigation Reform Act of 1995 ("PSLRA"). On June 27, 2018, the Court entered an Order holding that proper notice was not provided in the action and that the Plaintiff could publish notice pursuant to the PSLRA and initiate the 60-day period for class members to seek tje Lead Plaintiff status. On June 28, 2018, the Plaintiff caused notice to be issued of the pending action pursuant to the PSLRA. The deadline for the class members to move for appointment as the Lead Plaintiff is Aug. 27, 2018. The counsel for the Defendants has agreed to accept service of process on behalf of those respective Defendants who have not been served. There have been no prior extensions of time for the Defendants to answer, move or otherwise respond to the Complaint in the Court. Therefore, the parties stipulated and agreed, and Judge Martinez granted, that the undersigned counsel for the Funko Defendants and the Underwriter Defendants are authorized to and accept service of process in the action on behalf of the unserved Funko Defendants and Underwriter Defendants, respectively, without prejudice and without waiver of any defenses, objections, or arguments in the matter or any other matter, including without limitation any arguments regarding personal jurisdiction or venue, except as to sufficiency of service of process. The Defendants will not be required to answer, move, or otherwise respond to the Complaint until after the Court appoints a Lead Plaintiff and a Lead Counsel. Unless otherwise agreed by the parties or ordered by the Court, within 14 days after the Court appoints a Lead Plaintiff and a Lead Counsel, the Defendants and the Lead Plaintiff will confer and jointly submit a: (i) proposed schedule and dates by which the Lead Plaintiff will file an amended complaint or designate a complaint as the operative complaint; and (ii) briefing schedule on the Defendants' anticipated motion(s) to dismiss. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/ltnDQK from Leagle.com. Satyanarayana Kanugonda, individually and on behalf of all others similarly situated, Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- THE ROSEN LAW FIRM, PA, pro hac vice, Spencer Hall, Jr. -- shall@hallgeorge.com -- HALL & GEORGE PLLC & Colin M. George -- cgeorge@hallgeorge.com -- HALL & GEORGE PLLC. Funko, Inc, Brian Mariotti, Russell Nickel, Ken Brotman, Gino Dellomo, Charles Denson, Diane Irvine, Adam Kriger & Richard McNally, Defendants, represented by Benjamin Naftalis -- benjamin.naftalis@lw.com -- LATHAM & WATKINS, pro hac vice, Kevin M. McDonough -- kevin.mcdonough@lw.com -- LATHAM & WATKINS, pro hac vice, Stellman Keehnel -- stellman.keehnel@dlapiper.com -- DLA PIPER US LLP & David Ian Freeburg -- david.freeburg@dlapiper.com -- DLA PIPER US LLP. GENERAL MOTORS: Seeks Dismissal of Blind Zone Alert Class Action ---------------------------------------------------------------- David Wood, writing for CarComplaints.com, reports that a GM side blind zone alert lawsuit should allegedly be dismissed because the plaintiff's claims about 2013-2018 Chevy Cruze cars are allegedly not based on the facts. That opinion is held by General Motors as the automaker filed a motion to dismiss the class-action. Anthony and Lisa Hudson say they purchased a 2013 Chevy Cruze in September 2013, a car equipped with the optional "Enhanced Safety Package" which included the system that illuminates an amber display in the side mirrors if it detects vehicles in the "blind spots" of the side mirrors. The plaintiffs allege in May 2015, the General Motors side blind zone alert system "malfunctioned" and was repaired under warranty by a GM dealer. But the plaintiffs claim the system malfunctioned again after the warranty expired, causing problems to unspecified electrical systems. The lawsuit alleges it can cost $1,000 to repair the system, but the lawsuit doesn't allege the plaintiffs paid that amount for repairs. According to the lawsuit, there are problems with the sensors because they are located on the rear bumper where the sensors can be affected by water, rain, snow and dirt. Attorneys for GM tore into the alleged arguments made by the plaintiffs and told the judge the case should immediately be dismissed. GM points out the lawsuit alleges more than 1.1 million 2013-2018 Chevy Cruze cars were sold and about 25 percent were equipped with the alert systems. This means the plaintiffs claim more than 250,000 cars in the U.S. have defective alert systems, yet the lawsuit mentions only 40 cars that were presented for service of the systems during the warranty periods. In addition, GM argues the plaintiffs don't allege any specific facts about those 40 Cruze cars, such as the problems experienced or details about the repairs. Saying the nationwide class-action lawsuit gives the term "threadbare" new meaning, attorneys for GM told the judge that 40 cars needing repairs out of more than 250,000 over the course of five years doesn't mean the side blind zone alert systems are defective. According to GM, the plaintiffs sued because their car was repaired once for free under warranty, and apparently the car owners want "limited" warranties to last forever. "GM provides a limited warranty, not a lifetime guarantee. Two repairs after several years of vehicle use does not come close to supporting their individual claims, much less a costly and time-consuming class action." In its motion to dismiss the lawsuit, GM says the plaintiffs allege "the problem with the sensors is inherent in the design of the vehicle." But the automaker argues the express terms of GM's limited warranty only applies to defects caused by "materials or workmanship," not to the alleged side blind zone alert design defect. The automaker also told the judge no breach of warranty violations occurred because the plaintiff's alert system was repaired for free under the warranty. The plaintiffs never claim they took their vehicle back to the dealer and asked for another repair under warranty. But GM argues even if they had and GM denied the request, the automaker would still be in the clear. Attorneys for GM note that "nothing in the warranty guarantees that a part repaired during the warranty period will never again require repair, nor does the law impose such an obligation upon a manufacturer. To do so would be tantamount to re-writing the terms of the limited warranty into one of unlimited scope and duration." Furthermore, the automaker says even if the system malfunctioned a second time does not mean the first repair was not "effective," as the plaintiffs contend. And GM's lawyers told the judge the lawsuit doesn't allege the alert system was nonfunctional when the Cruze was sold or at any time prior to 2015. As part of the lawsuit, the Cruze owners claim GM had knowledge of the alleged defects because of warranty claims and customer complaints, but GM argues the plaintiffs have no sound argument. While the plaintiffs reference internet complaints, GM says the plaintiffs do not name a single complaint made before they purchased their Cruze in September 2013. In addition, GM says numerous courts have ruled random postings online do not mean a manufacturer has advance knowledge of possible problems. GM argues if that was the case, then "[a]ll any plaintiff would be required to show is that a product broke once and that someone complained about it on the internet." And finally, General Motors says warranty and fraud claims based on a nationwide class-action should be dismissed because the "variations in state laws would preclude class certification." The GM side blind zone alert lawsuit was filed in the U.S. District Court for the Eastern District of Michigan, Southern Division -- Anthony and Lisa Hudson, et al., vs. General Motors LLC. [GN] GEORGIA: Class Claims in Martinez Prison Condition Suit Dismissed ----------------------------------------------------------------- In the case, HARLEM MARTINEZ, Plaintiff, v. WARDEN HILTON HALL; GREG DOZIER; ASSISTANT WARDEN RICK STONE; and LINDA WALKER, Defendants, Civil Action No. 5:17-cv-119 (S.D. Ga.), Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia, Waycross Division, (i) dismissed the access to courts, conspiracy, class action, and preliminary injunctive relief claims; and (ii) denied him in forma pauperis on appeal as to these claims. The Judge concurred with the Magistrate Judge's Report and Recommendation, to which the Plaintiff filed Objections. She finds that while the Plaintiff makes an admirable effort to cure the deficiencies of his original Complaint through his Objections, his effort fails. As an example, the Plaintiff attempts to show his habeas corpus petition filings were unsuccessful due to the Defendants' alleged policy of only having one Spanish-language book in the prison's library. However, he notes the habeas court, in denying his petition, mainly pointed out that he failed to satisfy his burden of proof as to his ineffective assistance of counsel claims. Indeed, from the Plaintiff's own admissions, he was able to pursue his habeas petition. His lack of success on the relative merits is irrelevant to asserting a cognizable access to courts claim. Thus, Judge Wood overruled the Plaintiff's Objections and adopted the Magistrate Judge's Report and Recommendation as the opinion of the Court. She dismissed the Plaintiff's access to courts, conspiracy, class action, and preliminary injunctive relief claims; and denied him in forma pauperis on appeal as to these claims. The Plaintiff's equal protection claim against the Defendants remains pending. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/q1uQEk from Leagle.com. Harlem Martinez, Plaintiff, pro se. Warden Hilton Hall, Assistant Warden Rick Stone & Linda Walker, Defendants, represented by Stephen E. Curry, Curry Law Firm. GLOBAL POWER: Budde Appeals Dismissal of Class Action ----------------------------------------------------- The lead plaintiff in the case, MARGARET BUDDE, lead plaintiff, and DANIEL REAM, individually and on behalf of all others similarly situated, Plaintiffs, v. GLOBAL POWER EQUIPMENT GROUP, INC., RAYMOND K. GUBA, LUIS MANUAL RAMIREZ, and DAVID L. WILLIS, Defendants, Civil Action No. 3:15-cv-1679-M (N.D. Tex.), has taken an appeal to the United States Court of Appeals for the Fifth Circuit from (a) the memorandum opinion and order granting defendants' motion to dismiss the second amended complaint; (b) the memorandum opinion and order granting defendants' motion to dismiss the third amended complaint; and (c) the judgment entered on September 11, 2018. The Notice of Appeal was filed September 11. Williams Industrial Services Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that a putative shareholder class action, captioned Budde v. Global Power Equipment Group Inc., is pending in the U.S. District Court for the Northern District of Texas naming the Company and certain former officers as defendants. This action and another action were filed on May 13, 2015 and June 23, 2015, respectively, and on July 29, 2015 the court consolidated the two actions and appointed a lead plaintiff. On May 1, 2017, the lead plaintiff filed a second consolidated amended complaint that names the Company and three of its former officers as defendants. It alleges violations of the federal securities laws arising out of matters related to the Company's restatement of certain financial periods and claims that the defendants made material misrepresentations and omissions of material fact in certain public disclosures during the putative class period in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5, as promulgated thereunder. The plaintiffs seek class certification on behalf of persons who acquired the Company's stock between September 7, 2011 and May 6, 2015, monetary damages of "more than $200 million" on behalf of the putative class and an award of costs and expenses, including attorneys' fees and experts' fees. The Company intends to defend against this action. On June 26, 2017, the Company and the individual defendants filed a motion to dismiss the complaint. On August 23, 2017, the lead plaintiff filed its opposition to that motion. On September 22, 2017, defendants filed their reply brief in further support of their motion to dismiss. On December 27, 2017, the court issued a memorandum opinion and order granting the motion to dismiss, allowing the plaintiffs until January 15, 2018 to file an amended complaint. The court found that, with respect to each of the defendants, plaintiffs failed to plead facts supporting a strong inference of scienter, or the required intent to deceive, manipulate or defraud, or act with severe recklessness. On January 15, 2018, the plaintiffs filed their third amended complaint, and in response the Company filed a renewed motion to dismiss. Plaintiffs subsequently filed a motion in opposition to the Company's motion to dismiss, and requested oral argument. Defendants filed their reply brief in further support of their motion on March 23, 2018, and oral argument was held on July 19, 2018 and the court has not yet issued a ruling. Williams Industrial said, "Litigation is subject to many uncertainties, and the outcome of this action is not predictable with assurance. At this time, the Company is unable to predict the possible loss or range of loss, if any, associated with the resolution of this litigation, or any potential effect such may have on the Company or its business or operations." Liaison Counsel for Lead Plaintiff: Joe Kendall, Esq. Jamie J. Mckey, Esq. Kendall Law Group, PLLC 3811 Turtle Creek, Suite 1450 Dallas, TX 75219 Tel: (214) 744-3000 Fax: (214) 744-3015 E-mail: jkendall@kendalllawgroup.com jmckey@kendalllawgroup.com Lead Counsel for Lead Plaintiff: Jeffrey C. Block, Esq. Jacob A. Walker, Esq. Block & Leviton LLP 155 Federal Street, Suite 400 Boston, MA 02110 Tel: (617) 398-5600 Fax: (617) 507-6020 E-mail: jeff@blockesq.com jake@blockesq.com Williams Industrial Services Group Inc. provides general and specialty construction, maintenance and modification, and plant management support services to the nuclear, hydro and fossil power generation, pulp and paper, refining, petrochemical, and other process and manufacturing industries. Williams Industrial Services Group Inc. was founded in 1998 and is headquartered in Irving, Texas. GOLDEN QUEEN: Underpays Heavy Equipment Operators, Windham Claims ----------------------------------------------------------------- RICKY WINDHAM, individually and on behalf of all others similarly situated, Plaintiff v. GOLDEN QUEEN MINING COMPANY LLC; and DOES 1 through 100, Defendants, Case No. BC719591 (Cal. Super., Los Angeles Cty., Aug. 28, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Windham was employed by the Defendants as heavy equipment operator from June 2015 to June 2018. Golden Queen Mining Company, LLC offers exploration and mining of gold and silver ores. The company was founded in 1985 and is based in Mojave, California. Golden Queen Mining Company, LLC operates as a subsidiary of Gauss LLC and Golden Queen Mining Co. Ltd. [BN] The Plaintiff is represented by: Peter M. Hart, Esq. Peter Choi, Esq. Ashlie E. Fox, Esq. LAW OFFICES OF PETER M. HART 12121 Wilshire Blvd., Suite 725 Los Angeles, CA 90025 Telephone: (310) 207-2277 Facsimile: (509) 561-6441 GRAMERCY PROPERTY: Faces Hurtado Suit over Blackstone Merger ------------------------------------------------------------ RAUL HURTADO, individually and on behalf of all others similarly situated, Plaintiff vs. GRAMERCY PROPERTY TRUST; ALLAN J. BAUM; Z. JAMIE BEHAR; CHARLES E. BLACK; GORDON F. DUGAN; THOMAS D. ECKERT; JAMES L. FRANCIS; GREGORY F. HUGHES; JEFFREY E. KELTER; LOUIS P. SALVATORE; and MORGAN STANLEY & CO. LLC, Defendants, Case No. 1:18-cv-02711-ELH (D. Md., Aug. 31, 2018) alleges violation of the Securities and Exchange Act. The Plaintiff brought an the action on behalf of the holders of Gramercy Property Trust common stock against Gramercy, its Board of Trustees, and Morgan Stanley & Co. LLC. According to the complaint, on June 27, 2018, and supplemented on July 13, 2018, the Defendants filed the Definitive Proxy Statement. The Proxy contained the recommendation of each Individual Defendants to Gramercy stockholders to vote in favor of the proposed sale of the Gramercy to an affiliate of The Blackstone Group L.P. The Proxy contained several statements representing the Board's opinion that the Merger is the shareholders' best interests and the Merger consideration was "fair," and provided Morgan Stanley's fairness analyses and fairness opinion to induce shareholder approval of the Merger. The Proxy failed to disclose facts to disabuse stockholders of these incorrect assumptions. The Proxy did not disclose that Morgan Stanley's valuation was objectively flawed. The Proxy also omitted facts demonstrating that the Board either did not obtain a valid valuation, or did, and did not disclose this material information which directly contradicted the financial fairness of the Merger.[BN] The Plaintiff is represented by: Dana W. McKee, Esq. Joseph B. Espo, Esq. BROWN GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Telephone: (410) 962-1030 Facsimile: (410) 385-0869 E-mail: dwm@browngold.com jbe@browngold.com - and - David T. Wissbroecker, Esq. Danielle S. Myers, Esq. Eun Jin Lee, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: dmyers@rgrdlaw.com dwissbroecker@rgrdlaw.com elee@rgrdlaw.com - and - W. Scott Holleman, Esq. JOHNSON FISTEL, LLP 99 Madison Avenue, 5th Floor New York, NY 10016 Telephone: (212) 802-1486 Facsimile: (212) 602-1592 E-mail: scotth@johnsonfistel.com GREAT LAKES: Court Certifies Class of Student Loan Borrowers ------------------------------------------------------------ In the case, MEREDITH D. DAWSON, Plaintiff, v. GREAT LAKES EDUCATIONAL LOAN SERVICES, INC., GREAT LAKES HIGHER EDUCATION CORPORATION, JILL LEITL, DAVID LENTZ, and MICHAEL WALKER, Defendants, Case No. 15-cv-475-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin (i) granted Dawson's renewed motion for class certification as to liability issues, and (ii) denied without prejudice as to damages issues. The case is a proposed class action in which Dawson alleges that the Defendants -- two affiliated student loan servicing companies and three of their employees -- fraudulently and negligently inflated the amount owed on her (and other similarly situated borrowers') student loans. Specifically, Dawson alleges that Great Lakes wrongfully capitalized some interest that had accrued on her student loans, improperly increasing the principal amount, and that Great Lakes misrepresented its interest capitalization practices. Dawson asserts claims for common law negligence and negligent misrepresentation and violations of the Racketeer Influenced and Corrupt Organizations ("RICO") Act. Now before the Court is Dawson's second attempt to have the case certified as a class action under Federal Rule of Civil Procedure 23. Dawson has revised her proposed class definition accordingly, and the renewed motion requests certification of the class of all persons who, between Jan. 1, 2006 and the present: (i) were borrowers of a student loan issued under the Federal Family Education Loan Program ("FFELP"), or of a student loan issued under the Federal Direct Loan Program; (ii) had their FFELP and/or Direct student loan(s) serviced by Great Lakes Educational Loan Services, Inc. or Great Lakes Higher Education Corp.; (iii) had Great Lakes place their FFELP and/or Direct student loan(s) in an administrative forbearance status for a period of up to 60 days, concurrent with the processing of their application for a deferment, forbearance, consolidation loan, or change in repayment plan; and (iv) had any amount of accrued interest capitalized at the end of the administrative forbearance period. The Court denied Dawson's initial motion to certify her proposed class under Rule 23(b)(3), finding her claims too vague and her injury too ill-defined to enable the court to conduct the necessary inquiry under Rule 23. With the Court's permission, Dawson filed a renewed motion for class certification under Rule 23(b)(3). The parties submitted additional briefing and the Court heard oral argument. The Court has also received and reviewed several filings since the hearing. Dawson has narrowed the proposed class and clarified her claims, and Judge Peterson is satisfied that she has cured the core deficiencies identified in its prior order. And the parties do not appear to dispute that the primary issues related to liability to can be resolved on a class-wide basis, so the Court will grant Dawson's motion for class certification as to those issues. There are three caveats. First, the Judge will limit the class to individuals like Dawson, who received a "standalone" B-9 forbearance and not "back-to-back" forbearances. Dawson cannot represent class members with different claims. Second, the Judge will create subclasses for the three types of alleged capitalization errors at issue in this case. Because Dawson alleges that Great Lakes subjected her to all three kinds of errors, she may serve as the class representative for each subclass. Third, he will not certify the class for damages issues at this time. Great Lakes has identified a number of potential problems with resolving those issues in one case and Dawson has not adequately rebutted those arguments. After the Court resolves liability, the parties may revisit the question of the best way to decide damages. Accordingly, Judge Peterson granted Dawson's renewed motion for class certification as to liability issues, and denied without prejudice as to damages issues. He certified the class of all persons who, between Jan. 1, 2006 and the present: (i) were borrowers of a student loan issued under the Federal Family Education Loan Program ("FFELP"), or of a student loan issued under the Federal Direct Loan Program; (ii) had their FFELP and/or Direct student loan(s) serviced by Great Lakes Educational Loan Services, Inc. or Great Lakes Higher Education Corp.; (iii) had Great Lakes place their FFELP and/or Direct student loan(s) in an administrative forbearance status for a period of up to 60 days that is not immediately preceded by another forbearance, deferment, or grace period, concurrent with the processing of their application for a deferment, forbearance, consolidation loan, or change in repayment plan; and (iv) had any amount of accrued interest capitalized at the end of the administrative forbearance period. Included in the class are three subclasses of class members subjected to capitalization of these types of interest: (a) interest that accrued during the B-9 Forbearance period; (b) interest that accrued before the B-9 Forbearance period; and (c) interest that Great Lakes capitalized procedural or programming errors. The Judge appointed the law firm Finkelstein & Krinsk LLP as the class counsel. He granted Dawson's motion for leave to file a response and denied as moot her motion for pretrial conference and for corrective notice. Dawson may have until Sept. 5, 2018, to file a proposed class notice or inform the court that she wishes to use Docket 163-1 as her proposed notice. Great Lakes may have until Sept. 12, 2018, to file any objections to the Dawson's proposed notice, along with its own proposed notice. The clerk of court is directed to set a new scheduling conference with Magistrate Judge Stephen Crocker. A full-text copy of the Court's Aug. 28, 2018 Opinion and Order is available at https://is.gd/3zSNcw from Leagle.com. Meredith D. Dawson, Plaintiff, represented by David J. Harris, Jr. -- djh@classactionlaw.com -- Finkelstein & Krinsk LLP, Adrian Trent Ruark -- atr@classactionlaw.com -- Finkelstein & Krinsk LLP, Jeffrey Robert Krinsk -- jrk@classactionlaw.com -- Finkelstein & Krinsk LLP & Trenton R. Kashima -- trk@classactionlaw.com -- Finkelstein & Krinsk LLP. Great Lakes Educational Loan Services, Inc., Great Lakes Higher Education Corporation, Jill Leitl, David Lentz & Michael Walker, Defendants, represented by Thomas L. Shriner, Jr. -- tshriner@foley.com -- Foley & Lardner LLP, Elizabeth A.N. Haas -- ehaas@foley.com -- Foley & Lardner LLP, Eric G. Pearson -- epearson@foley.com -- Foley & Lardner LLP & Michael D. Leffel -- mleffel@foley.com -- Foley & Lardner. GT ADVANCED: Lead Plaintiff Moves to Certify Class in Levy Suit --------------------------------------------------------------- Douglas Kurz, the Lead Plaintiff in the lawsuit captioned ADAM S. LEVY on behalf of himself and all others similarly situated v. THOMAS GUTIERREZ, RICHARD J. GAYNOR, RAJA BAL, J. MICHAL CONAWAY, KATHLEEN A. COTE, ERNEST L. GODSHALK, MATTHEW E. MASSENGILL, MARY PETROVICH, ROBERT E. SWITZ, NOEL G. WATSON, THOMAS WROE, JR., MORGAN STANLEY & CO. LLC, GOLDMAN, SACHS & CO., CANACCORD GENUITY INC., AND APPLE, INC., Case No. 1:14-cv-00443-JL (D.N.H.), together with Securities Act Plaintiff Palisade Strategic Master Fund (Cayman) Limited, and Named Plaintiff Vance K. Opperman move the Court for an order certifying the action to proceed as a class action pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. Thomas Gutierrez is the president, chief operating officer and director of GT Advanced Technologies, Inc., a now-bankrupt manufacturer of materials for consumer electronics. The Plaintiffs also ask the Court to appoint them to serve as Class Representatives, and to appoint Bernstein Litowitz Berger & Grossmann LLP as Class Counsel.[CC] Lead Plaintiff Douglas Kurz is represented by: John C. Browne, Esq. Lauren A. Ormsbee, Esq. Ross Shikowitz, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: johnb@blbglaw.com lauren@blbglaw.com ross@blbglaw.com - and - Jennifer A. Eber, Esq. Jeffrey C. Spear, Esq. ORR & RENO, P.A. 45 S. Main Street PO Box 3550 Concord, NH 03302-3550 Telephone: (603) 224-2381 Facsimile: (603) 224-2318 E-mail: jeber@orr-reno.com jspear@orr-reno.com Named Plaintiff Palisade Strategic Master Fund (Cayman) Limited is represented by: Sherrie Savett, Esq. Gary E. Cantor, Esq. Glen Abramson, Esq. BERGER & MONTAGUE, P.C. 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3082 Facsimile: (215) 875-4604 E-mail: ssavett@bm.net gcantor@bm.net gabramson@bm.net Named Plaintiff Vance Opperman is represented by: Richard A. Lockridge, Esq. Karen Riebel, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 22200 Minneapolis, MN 55401-2179 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: ralockridge@locklaw.com khriebel@locklaw.com HELIOS & MATHESON: Faces Chang and Braxton Class Suits ------------------------------------------------------ Helios & Matheson Analytics Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that the company faces two putative class action suit entitled, Jeffrey Chang v. Helios and Matheson Analytics Inc., et. al. and Jeffrey Braxton v. Helios and Matheson Analytics, Inc. et al. On August 2, 2018, Jeffrey Chang, a purported stockholder of the Company, acting on behalf of himself and a putative class of persons who purchased or otherwise acquired the Company's common stock between August 15, 2017, and July 26, 2018, filed a class action complaint in the U.S. District Court for the Southern District of New York against the Company and two of its executive officers, Theodore Farnsworth and Stuart Benson (the "August 2, 2018 Complaint"). Jeffrey Chang v. Helios and Matheson Analytics Inc., et. al., Case No. 1:18-cv-6965. The August 2, 2018 Complaint alleges, among other things, that the Company's statements to the market were materially false or misleading. The plaintiffs assert claims under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5. On August 13, 2018, Jeffrey Braxton, a purported stockholder of the Company, acting on behalf of himself and a putative class of persons who purchased or otherwise acquired the Company's common stock between August 15, 2017, and July 26, 2018, filed a class action complaint in the U.S. District Court for the Southern District of New York against the Company and two of its executive officers, Theodore Farnsworth and Stuart Benson (the "August 13, 2018 Complaint"). Jeffrey Braxton v. Helios and Matheson Analytics, Inc. et al., Case No. 1:18-cv-07242-UA. The August 13, 2018 Complaint makes substantially identical allegations as the August 2, 2018 Complaint. Helios and Matheson said, "The Company intends to vigorously defend these matters and believes that they are without merit. Given the preliminary status of the litigation, it is difficult to predict the likelihood of an adverse outcome or estimate the amount or range of any reasonably possible losses, if any." Helios and Matheson Analytics Inc. provides a range of information technology (IT) solutions to Fortune 1000 companies and other organizations in the United States. Helios and Matheson Analytics Inc. was founded in 1982 and is headquartered in New York, New York. HERTZ CORP: Unlawfully Changed Car Rental Terms, Berry Suit Claims ------------------------------------------------------------------ ZSA ZSA BERRY, individually and on behalf of all others similarly situated, Plaintiff v. THE HERTZ CORPORATION; and DOES 1-10, inclusive, Defendants, Case No. BC719082 (Cal. Super., Los Angeles Cty., Aug. 27, 2018) seeks to stop the Defendants' practice of falsely advertising its car rental service agreements in violation of the Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. The Plaintiff alleges in the complaint that the Defendants represent to the Plaintiff that they will not materially alter the car rental service agreement without notifying the Plaintiff first. The Defendant omitted from its advertisement and statements to the Plaintiff that the contract memorializing the Defendants' rental agreement would transfer from a weekly rental agreement to a monthly rental agreement after 28 days. The Hertz Corporation engages in the vehicle rental and leasing business. The company was founded in 1918 and is headquartered in Park Ridge, New Jersey. The Hertz Corporation is a subsidiary of Rental Car Intermediate Holdings, LLC. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com HESKA CORP: Court Certifies Class in Fauley TCPA Suit ----------------------------------------------------- In the case, SHAUN FAULEY, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. HESKA CORPORATION and JOHN DOES 1-10, Defendants, Case No. 15 C 2171 (N.D. Ill.), Judge Jorge Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Plaintiff's motion for class certification. Heska provides services to veterinary professionals, including diagnostic testing services and digital imaging equipment. The Plaintiff, a veterinarian, alleges that, on May 19, 2013, he received an unsolicited facsimile advertisement from Heska. He filed the suit, alleging that the Defendants violated the TCPA by faxing an advertisement to him and putative class members without the required opt-out language and without express permission or invitation. The Plaintiff says that, from March 2011 to July 2014, Heska sent tens of thousands of similar faxes to recipients across the United States, including 20 faxes to the Plaintiff, in violation of the TCPA. Heska raises a number of affirmative defenses, including that it had an established business relationship with plaintiff, that plaintiff gave prior express invitation and/or permission, and that it has received a waiver from the FCC. In April 2015, Heska timely filed a petition with the FCC seeking a retroactive waiver of the opt-out rule for solicited fax advertisements. On Aug. 28, 2015, the FCC granted Heska a retroactive waiver which excused Heska for any failure to comply with the opt-out notice requirement for faxes sent prior to April 30, 2015, provided that Heska had obtained the prior express invitation or permission of the recipient to receive the fax. Near the close of discovery, Heska submitted its Fifth Supplemental Disclosures to the Plaintiff, which included affidavits from certain Heska employees, a sample of Heska Customer Account files, evidence from Heska's purported "reconfirmation campaign," and requests to be excluded from the class. According to this evidence, Heska maintains a customer database that was created in 1988 and contains accounts for customers and prospective customers. In August 2015, Heska initiated a "reconfirmation campaign" in an attempt to obtain specific evidence showing that the customers in Heska's database gave Heska their fax numbers and consented to receive fax advertisements from Heska before the faxes were sent. As part of the campaign, Heska contacted over 10,850 customers. Shortly after Heska submitted its Fifth Supplemental Disclosures, the Plaintiff filed a motion pursuant to Rule 23(d), requesting the Court to exercise control over this action and enter appropriate orders governing the parties' conduct. Specifically, the Plaintiff sought an order from the Court (1) directing Heska to cease its efforts to "reconfirm" prior express permission or use its "script"; (2) holding that Heska cannot assert a defense of "establishd business relationship" or "prior express invitation or permission" in light of its opt-out notice violations; (3) excluding any evidence obtained in the "reconfirmation" campaign as inappropriately obtained and as untimely under Rule 26(e); (4) invalidating any requests for exclusion obtained to date; and (5) directing that corrective notice be sent to the putative class at Heska's expense. The Court referred the matter to the Magistrate Judge, who issued a Report and Recommendation granting in part and denying in part the Plaintiff's motion for rule 23(d) order. In particular, the Magistrate Judge recommended the Court to (1) deny the Plaintiff's request to bar the Fifth Supplemental Disclosures as untimely; (2) order the Defendant to cease using the script used during the reconfirmation campaign; (3) require the Defendant to seek Court approval of any amended script it intends to use in any continued reconfirmation campaign; (4) reserve ruling on whether the Defendant can utilize the evidence it already obtained in its reconfirmation campaign; and (5) consider including a reference to the Defendant's reconfirmation campaign if notice is eventually disseminated to class members. The Court adopted the Magistrate Judge's recommendations and extended discovery for a limited purpose. Heska later filed a motion to approve revised script, which the Court denied. The Plaintiff then filed a motion for class certification, seeking to certify the class of all persons or entities who were successfully sent one or more facsimiles regarding Heska's goods or services from March 12, 2011 through July 21, 2014, that either (1) contain no opt-out notice explaining how to stop future faxes or (2) contain an opt-out notice stating, To unsubscribe from Heska's promotional faxes, please call 800-464-3752, ext. 4565 or fax (970) 619-3008, and indicate your clinic name and fax number. The Plaintiff also asks the Court to appoint him as the class representative and to appoint his counsel as the class counsel. Judge Alonso finds that the proposed class satisfies the requirements of Rule 23(a)'s and Rule 23(b)(3)'s class certification requirements. Therefore, he granted the Plaintiff's motion. He certified the class of all persons or entities who were successfully sent one or more facsimiles regarding Heska Corporation's goods or services from March 12, 2011 through July 21, 2014, that either (1) contain no opt-out notice explaining how to stop future faxes or (2) contain an opt-out notice stating, To unsubscribe from Heska's promotional faxes, please call 800-464-3752, ext. 4565 or fax (970) 619-3008, and indicate your clinic name and fax number. The Judge directed the parties to file a joint status report by Sept. 7, 2018, informing the Court of their next intended steps. The status hearing is set for Sept. 11, 2018 at 9:30 a.m. A full-text copy of the Court's April 24, 2018 Memorandum Opinion and Order is available at https://is.gd/eeFfHl from Leagle.com. Shaun Fauley, Plaintiff, represented by Brian J. Wanca -- bwanca@andersonwanca.com -- Anderson & Wanca, Glenn L. Hara -- GHara@andersonwanca.com -- Anderson & Wanca, Ross Michael Good -- rgood@andersonwanca.com -- Anderson Wanca, Ryan M. Kelly -- RKelly@andersonwanca.com -- Anderson & Wanca & Wallace Cyril Solberg -- wsolberg@andersonwanca.com -- Anderson Wanca. Heska Corporation, Defendant, represented by Joseph Patrick Sanchez, Goodspeed & Merrill, pro hac vice, Suzanne S. Goodspeed, Goodspeed & Merrill, pro hac vice, William B. Hayes , William B Hayes, pro hac vice & Brian E. Hurley -- bhurley@smbplaw.com -- Brian E. Hurley & Associates, pro hac vice. HIGH QUALITY: Nieves Sues over Sale of Gray Market Vehicles ----------------------------------------------------------- PEDRO F. NIEVES, individually and on behalf of all others similarly situated, Plaintiff v. HIGH QUALITY IMPORTS, INC.; and JOHN DOES 1-5, Defendant, Case No. MID-L-005118-18 (N.J. Super., Aug. 28, 2018) alleges that the Defendants have engaged in the practice of advertising and selling cars that were manufactured for sale outside of the United States known as the "gray market vehicles," without disclosing the nature of these vehicles in advertisements, signs, and sales documents in violation of the New Jersey Consumer Fraud Act. According to the complaint, the Defendant is selling cars with substantially lower market value, typically 25% lower, than cars of the same year, model, options, mileage, and condition that were manufactured for sale in the United States. Moreover, these gray market vehicles are not covered by manufacturer and most third-party warranties. The Plaintiff and the other members of the putative class suffered ascertainable loss from the Defendants' deception and knowing omission regarding gray market vehicles sold at their New Jersey dealership locations. Since the Plaintiff and the class cannot ascertain whether these vehicles were gray market vehicles, the Defendants overcharged the Plaintiff and the consumers for Motor Vehicle registration and transfer of title fees. High Quality Imports, Inc. is a used car dealership in Woodbridge, New Jersey. [BN] The Plaintiff is represented by: Henry P. Wolfe, Esq. THE WOLF LAW FIRM, LLC 1520 U.S. Highway 130, Suite 101 North Brunswick, NJ 08902 Telephone: (732) 545-7900 Facsimile: (732) 545-1030 HUFF DISTRIBUTING: Underpays Route Drivers, Thomas Suit Alleges --------------------------------------------------------------- WADE THOMAS, individually and on behalf of all others similarly situated, Plaintiff vs. HUFF DISTRIBUTING, LLC; JASON K. HUFF; and ANDREA L. HUFF, Defendants, Case No. 3:18-cv-02058-MCR-CJK (N.D. Fla., Aug. 28, 2018) is an action against the Defendants for failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Mr. Thomas was employed by the Defendants as route driver. Huff Distributing, LLC distributes consumer products. The Company offers cheese, vegetables, snacks, popcorn, and other food products. Huff Distributing serves customers in the State of Missouri. [BN] The Plaintiff is represented by: Jeremiah J. Talbott, Esq. LAW OFFICE OF JEREMIAH J. TALBOTT, P.A. 900 E. Moreno Street Pensacola, FL 32503 Telephone: (850) 437-9600 Facsimile: (850) 437-0906(fax) E-mail: jjtalbott@talbottlawfirm.com civilfilings@talbottlawfirm.com HUNTER WARFIELD: Smith Files FDCPA Suit in E.D. Missouri -------------------------------------------------------- A class action lawsuit has been filed against Hunter Warfield. The case is styled as Antoinette Smith individually and on behalf of all others similarly situated, Plaintiff v. Hunter Warfield, Defendant, Case No. 4:18-cv-01642 (E.D. Mo., Sept. 27, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Hunter Warfield, Inc. provides debt collection and asset investigation services. It specializes in multi-housing, commercial, funeral care, and educational markets, as well as serves educational-student housing and student loans, military housing, utility billing, building and medical supply, and auction bid defaults. The company was founded in 1983 and is based in Tampa, Florida.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. RC LAW GROUP, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 x101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com IMPINJ INC: Montemarano Sues over Drop in Share Prices ------------------------------------------------------ RICHARD MONTEMARANO, individually and on behalf of all others similarly situated, Plaintiff v. IMPINJ, INC.; CHRIS DIORIO; EVAN FEIN; and ERIC BRODERSEN, Defendants, Case No. 2:18-cv-01264 (W.D. Wash., Aug. 27, 2018) alleges violation of the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that on August 2, 2018, Impinj announced that it was delaying the release of its second quarter 2018 ("2Q18") results for the period ended June 30, 2018, its 2Q18 investor conference call, and the filing of its 2Q18 financial report with the SEC. The Company also disclosed that in response to having received a complaint from a former employee, the Audit Committee of Impinj's Board of Directors had commenced an independent investigation and had retained independent counsel to assist in the investigation. Impinj further disclosed that the SEC had been notified of the former employee's complaint and the Audit Committee's investigation into it. Impinj stated that it could not "predict the duration or outcome of the investigation, and [would] not be in a position to file its Form 10-Q until the Audit Committee completed its investigation." Impinj also announced preliminary 2Q18 financial results that day, disclosing that it had reduced its bloated inventory balance by $1.4 million, to approximately $53.3 million. On this news, Impinj's share price fell $3.02 per share, or nearly 14%, on August 3, 2018, on heavy trading volume of 914,100 shares traded. On August 13, 2018, Impinj disclosed that it had been notified by the NASDAQ that its failure to timely file its 2Q18 financial report took it out of compliance with NASDAQ's listing requirements and that a failure to bring the financial reports current could result in its common stock being delisted. Impinj, Inc. operates a platform that enables wireless connectivity to everyday items by delivering each item's unique identity, location, and authenticity to business and consumer applications. Impinj, Inc. was founded in 2000 and is headquartered in Seattle, Washington. [BN] The Plaintiff is presented by: Steve W. Berman, Esq. Karl P. Barth, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steveb@hbsslaw.com karlb@hbsslaw.com - and - Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 - and - David C. Walton, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 - and - Corey D. Holzer, Esq. HOLZER & HOLZER, LLC 1200 Ashwood Parkway, Suite 410 Atlanta. GA 30338 Telephone: (770) 392-0090 Facsimile: (770) 392-0029 INDIO, CA: To Settle Suit Over Minor Local Code Violation Fees -------------------------------------------------------------- Eric Westervelt, writing for WGBH, reports that cities in California can no longer tack on exorbitant legal fees to settle minor local code violations, thanks to a new law enacted recently. The law makes it illegal for cities and counties to charge defendants for the legal costs to investigate, prosecute or appeal a criminal violation of a local ordinance. "We made the argument that, yes, people should comply with local code enforcement laws, but violations should remain in the civil side of prosecution instead of the criminal side," says Eduardo Garcia, a Democrat from Coachella. He co-sponsored the bill with Republican Chad Mayes, of Yucca Valley. The law was spurred in part by an NPR report and a series in the Desert Sun newspaper earlier this year. Those reports showed how some cities in Southern California contracted with private law firms to recover the cost of enforcing what are mostly minor code violations. The practice saddled some homeowners with massive legal bills they couldn't afford to pay. One Coachella man told NPR he was fined some $30,000 because he didn't get permits for an addition on his house. NPR also reported on a $6,000 fine against 80-year-old Ramona Morales, of Indio. She was penalized because one of her renters kept chickens in the yard. That's a violation of Indio's municipal code on farm animals in a residential area. Ms. Morales is fighting her penalty. When she learned of the new law, she felt relief. "To me it's a good thing because I don't do nothing wrong and they charged me a lot," Ms. Morales said. "I think it's not right what they do -- collecting a lot of money from me and other people." NPR has reached out to city representatives of Indio and Coachella. They so far have declined to comment on the new legislation. Critics of the for-profit policy praised the legislator for taking swift action. "It's really unusual for this kind of legislation to move this fast, which goes to show that what's going on here is so outrageous to most peoples' sense of decency and justice," says attorney Jeffrey Redfern, with the Institute for Justice. The group filed a class-action lawsuit on behalf of California residents saddled with legal fees following minor ordinance violations. That suit continues, though Mr. Redfern says the city of Indio has agreed, in principle, to settle the class action case. The city of Coachella continues to challenge it. (The institute says it did not play a role in the newly passed legislation.) Mr. Redfern says the billing practice marked a dangerous trend. "Criminal prosecutors should decide what charges to bring solely on what's just," Mr. Redfern says. "When prosecutors have a financial incentive in a criminal case to run up the bills and impose punitive measures -- that violates due process." Assemblyman Garcia says he "wanted to correct a wrong and make sure it doesn't happen to other people." The law, signed by Gov. Jerry Brown, applies mainly to local ordinances. It still allows cities and counties to try to collect fees for probation, tax, insurance and other more serious violations. [GN] INFUSYSTEM HOLDINGS: Parties Ink Confidential Settlement -------------------------------------------------------- InfuSystem Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that the company and the plaintiffs in a class action lawsuit have entered into a confidential settlement agreement resolving claims made in the litigation. On January 29, 2018, the Company received notice that the U.S. District Court for the Central District of California (the "Court") (Case No. 2:16-cv-08295-ODW) issued an order dismissing, with prejudice, a putative class-active lawsuit against the Company. The dismissal relates to an action brought on November 8, 2016 by purported shareholders of the Company against the Company and two individual defendants: Eric Steen, the Company's former Chief Executive Officer, President and Director; and Jonathan Foster, the Company's former Chief Financial Officer. The complaint asserted claims against all defendants under the antifraud provisions of the federal securities laws and against Messrs. Steen and Foster as control persons. On June 19, 2017, the Company and all defendants filed a Motion to Dismiss the amended complaint. On December 15, 2017, the Court dismissed the plaintiffs' first amendment to the class action compliant ("FAC"), with leave to amend. On December 20, 2017, the parties stipulated, and the Court extended, the plaintiffs' time to amend the FAC up to January 19, 2018. As of January 19, 2018, the plaintiffs never filed an amended complaint and the Court dismissed the lawsuit with prejudice on January 29, 2018. On February 28, 2018, the plaintiffs filed a notice of appeal, on the motion to dismiss, to the 9th Circuit Court of Appeals. On June 4, 2018, the Company and the plaintiffs entered into a confidential settlement agreement resolving claims made in the litigation. InfuSystem Holdings Inc., through its subsidiaries, provides infusion pumps, and related products and services in the United States and Canada. InfuSystem Holdings Inc. was founded in 2005 and is headquartered in Madison Heights, Michigan. INT'L BUSINESS: Sued for Discriminating Against Older Employees --------------------------------------------------------------- Courthouse News Service reported that three men let go from International Business Machines Corporation after a combined 82 years of service claim in a federal class action that the tech giant "has been in the process of systematically laying off older employees in order to build a younger workforce." "Between 2012 and the present," the complaint states, "IBM has laid off at least 20,000 employees over the age of forty." The class is represented by the firm Lichten & Liss-Riordan of Boston. J & J RICHHAVEN: Fails to Pay Minimum & Overtime Wages, Li Claims ----------------------------------------------------------------- DE YIN LI, Individually and On Behalf of Others Similarly Situated v. J & J Richhaven Enterprises Inc., d/b/a U-Me Sushi, and Jing Chow, Case No. 1:18-cv-05277 (E.D.N.Y., September 19, 2018), arises from the Defendants' alleged failure to pay their employees, including the Plaintiff, compensation for all hours worked, minimum wage, and overtime compensation for all hours worked over 40 each workweek and spread of hours pay. J & J Richhaven Enterprises Inc. is a domestic business corporation organized under the laws of the state of New York with a principal business address at 8509 Jamaica Avenue, in Woodhaven, New York. The Company operates a Japanese restaurant, U-Me Sushi.[BN] The Plaintiff is represented by: Xiaoxi Liu, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Ave., Suite 10G Flushing, NY 11354 Telephone: (718) 353-8588 E-mail: xliu@hanglaw.com JD.COM: Law Firms Mull Class Action Over Founder's Arrest --------------------------------------------------------- Nikki Sun, writing for Nikkei Asian Review, reports that only a week after the board of chipmaker Intel learned its chief executive had been in a romantic relationship with a colleague, he was gone. Steve Wynn resigned from the casino operator that carries his name two weeks after press reports emerged about his alleged sexual misconduct with employees. A top executive of animation studio Pixar was put on a leave of absence, from which he never returned, when his company learned a media report on harassment complaints against him was about to be published. At JD.com, there is no sign that billionaire founder Richard Liu Qiangdong, the company's high-profile chairman and chief executive, is stepping back at all even as police investigate him for the alleged rape of a woman in Minneapolis on Aug. 31. Liu has not been charged and was released from custody after one night and allowed to return to China. "If JD were an American company, the board would have already fired the CEO after the rape allegation . . . simply because few U.S. corporates want to deal with such controversial topic at the peak of the news cycle and public attention," said Junheng Li, chief executive of stock research firm JL Warren Capital in New York. "It is distracting and expensive for a company's budget and resources to fight such a battle in the public eye," she said. JD.com's Nasdaq-listed shares fell 16% over the first two trading sessions after Liu's brief arrest. But according to the company, "The situation in Minnesota did not have and is not expected to have any impact on JD.com's day-to-day operations." JD.com's operations are big. In China, the world's largest market for online shopping, JD.com is second only to Alibaba Group Holding in market share. JD.com generated 362.33 billion yuan ($53.05 billion) in revenue last year well above Alibaba's 250.27 billion yuan but they diverge greatly in profitability due in part to the difference in their business models. While Alibaba acts mostly as a marketplace matching buyers and sellers, JD.com is itself more of a retailer, buying goods, stocking inventory and handling distribution. Alibaba in its last fiscal year turned a net profit of 61.41 billion yuan while JD.com posted a net loss of 11.72 billion. JD.com's heavyweight strategic backers include Tencent Holdings, Walmart and Google. Yet its board is very much under Liu's personal control. While he holds only 16% of JD.com's shares, his stockholding carries with it 80% of overall voting rights. A provision in JD.com's articles of association states in effect that no board meeting can be held without Liu. Moreover, under the convoluted corporate structures adopted by many Chinese internet companies listing overseas due to Chinese investment laws, key parts of JD.com's operations in China are handled by corporate vehicles, known as variable interest entities, that it does not have full legal control over -- and that Liu holds large direct stakes in. "His control of the company and the VIE structure make it impossible to remove him," said John Gruetzner, founder of China-focused corporate advisory firm Intercedent. That doesn't mean JD.com's shareholders are sitting quietly. While Walmart declined to comment on whether it has queried the company about the allegations against Liu and Google did not respond, institutional investors are worried. "Shareholders are hugely concerned," said Shaun Rein, managing director of China Market Research Group in Shanghai, who said he had recently spoken with about 20 funds which have invested in JD.com or Tencent. "The uncertainty is bad for stock prices and bad for partnerships. Worries will grow over time if the stock continues to slide." Funds are likely to query the company about the criminal case, said Jamie Allen, secretary-general of the Asian Corporate Governance Association. "They won't refrain from talking to JD about it," he said. "They would have some opportunities to raise it." Messrs. Allen and Gruetzner believe the funds may try to leverage the situation to pressure the company into corporate governance reforms, such as beginning to hold an annual shareholders' meeting and perhaps separating the roles of CEO and chairman so that a nonexecutive chairman supervises the board. On Sept. 4, three American law firms -- Rosen, Schall and Pomerantz -- said in separate statements that they are organizing class action lawsuits on behalf of the shareholders of JD.com after rape allegations against Liu caused its share prices to tumble. "We are aware that a few class action law firms have publicly announced a desire to represent shareholders. We are aware of no lawsuits being filed against the company ," JD said in a statement on Sept. 6. "If filed, we will contest the allegations vigorously," it added. "JD's board should, and likely will, take steps to show he is being removed as the linchpin of the company," said Ross O'Brien, principal consultant for greater China with IT research company Ovum. The funds' lobbying may also have more impact now because JD.com's shares and business growth momentum were already under pressure before Liu's arrest. Its stock has slumped 46.2% since peaking at $50.68 in late January. Junheng Li expects the shares to fall to $22 within six months. Although JD.com reported a 31.2% increase in revenue on year in the April-June quarter, it missed market estimates. Transaction growth is slowing on its platform and Li forecasts that profit margins will narrow this year and next as JD.com invests in new initiatives in an effort to defend market share from Alibaba and newer social shopping services like Pinduoduo. "Market expectations are still ahead of underlying fundamentals," Li said. The public view of Liu is more mixed. For years, he has been a popular figure in China, due partly to his humble origins in a farming village in Jiangsu Province. In January, he was given a seat on the Chinese People's Political Consultative Conference, a top-level advisory body to the Communist Party. It is unclear whether this seat could be in jeopardy, but the authorities are likely to at least push Liu to take a lower public profile. "I'm sure the Chinese government will be on JD to dial down his presence," O'Brien said. Only a month before his arrest in Minnesota, lawyers for Liu in Australia lost a battle to keep him from being identified as the host of a 2015 party in Sydney at which one guest was convicted of sexually assaulting another. There has been no suggestion that Liu was involved in the crime. Some internet users spoke up in support of Liu on social media. "No matter if this case is true or not, JD is a flagship Chinese company and Richard Liu is a national entrepreneur," wrote a poster on microblog site Sina Weibo. "Who does not make mistakes in life? How can we forget how great Liu is just for one thing he might have done wrong?" Yet while the impact of the #MeToo movement has been more limited in China than in the U.S., Liu's fate may be affected by the charged atmosphere around allegations of sexual misconduct. So far, only a handful of Chinese men, mostly at universities, have lost their positions due to such allegations even though women in some surveys have said that harassment is widespread. In August, a high-ranking monk resigned his position at the Buddhist Association of China after accusations of sexual assault emerged on social media. "MeToo has not become a movement in China yet," said Xu Chao, a former Beijing journalist who publicly accused a prominent television presenter of sexually harassing an intern. "Some cases got public attention because the victims made a lot of noise while [most] others went away unnoticed." Some worry though that JD.com would have a hard time carrying on with Liu. There has been no public succession planning nor is there a visible second-in-command, analysts say. A person close to the management simply put it this way, "I don't know how JD.com would run without Richard Liu." [GN] JETRO HOLDINGS: Fails to Pay Wages, Carroll Says ------------------------------------------------ JOHN CARROLL, on behalf of himself and all others similarly situated, the Plaintiff, v. JETRO HOLDINGS LLC D/B/A RESTAURANT DEPOT, and JOHN DOES, the Defendants, Case No. 18-2674 (Mass. Super. Ct., Sept. 18, 2018), seeks to recover damages based on the Defendants' failure to pay wages under the Massachusetts law. According to the complaint, Jetro operates "Restaurant Depot" locations in Andover, Needham, Avon, Everett, and Chicopee, Massachusetts. Jetro sells such retail restaurant equipment as clothing, dinnerware, kitchen appliances, janitorial supplies, sink equipment, and furniture. The Plaintiff worked at the Jetro location in Everett, Massachusetts from approximately December 2017 until September 2018. The Plaintiff, as well as other members of the Class, regularly worked on Sundays and certain holidays, but was not paid time and one half his regular hourly wage for such work. Jetro Holdings operates as a holding company. The Company, through its subsidiaries, provides wholesale distribution of groceries and related products.[BN] The Plaintiff is represented by: Josh Gardner, Esq. Nicholas J. Rosenberg, Esq. GARDNER & ROSENBERG P.C. One State Street, Fourth Floor Boston, MA 02109 Telephone: 617 390 7570 E-mail: josh@gardnerrosenberg.com JONATHAN NEIL: Court Certifies Class of Consumers in Brown Suit --------------------------------------------------------------- In the case, TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant, Case No. 1:17-cv-00675-SAB (E.D. Cal.), Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California granted the Plaintiff's second motion for class certification. Brown, individually and on behalf of all others similarly situated, filed the action on May 16, 2017, alleging violations of the Fair Debt Collections Practices Act ("FDCPA"), and California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). Currently before the Court is the Plaintiff's second motion for class certification. Sometime prior to March 14, 2017, the Plaintiff allegedly incurred an obligation to Mercury Casualty Insurance. Around March 14, 2017, the Defendant sent the Plaintiff a letter regarding the debt owed to Mercury Casualty Insurance. The Plaintiff received the letter where the subject line states "RE: MERCURY CASUALTY INSURANCE". On May 15, 2017, the Plaintiff filed the action alleging violations of the FDCPA and RFDCPA. The Defendant filed an answer on June 22, 2017. On July 28, 2017, a scheduling order was issued in the action. On Jan. 12, 2018, Plaintiff filed a motion for class certification. The Defendant filed an opposition on Jan. 31, 2018. On Feb. 9, 2018, the Court granted in part Defendant's motion to seal. The Plaintiff filed a reply on Feb. 9, 2018. Hearing on the motion was held on Feb. 14, 2018, and the parties were ordered to file supplemental briefing. On March 22, 2018, the parties filed a notice of settlement. On March 7, 2018, the parties filed a joint motion for preliminary approval of the class action settlement. On June 5, 2018, an order issued finding the settlement was not fair, adequate, and reasonable and the joint motion for preliminary approval was denied. On Aug. 10, 2018, the Plaintiff filed a second motion to certify the class. On Aug. 24, 2018, the Defendant filed a statement of non-opposition to the motion to certify the class. The Plaintiff seeks to certify a class which is defined as all consumers with an address in Kern County, California, who, beginning May 16, 2016 through and including the final resolution of the case, were sent an initial letter from the Defendant attempting to collect a consumer debt allegedly owed to Mercury Casualty Insurance, which stated Re: Mercury Casualty Insurance without specifically identifying that entity as the `current creditor' or as the Defendant or as the Defendant's client. Judge Boone finds that the Plaintiff has met the requirements of Rule 23(a) and Rule 23(b) and finds that the Plaintiff's motion for certification of the class should be granted. Accordingly, he granted the Plaintiff's motion for class certification under Federal Rule of Civil Procedure 23(b)(3). He certified the class defined as all consumers with an address in Kern County, California, who, beginning May 16, 2016 through and including the final resolution of the case, were sent an initial letter from Jonathan Neil & Associates, Inc. attempting to collect a consumer debt allegedly owed to Mercury Casualty Insurance, which stated Re: Mercury Casualty Insurance without specifically identifying the current creditor. Brown is appointed as the class representative; and counsel Yitzchak Zelman and Ari H. Marcus as the class counsel. Within 20 days of entry of the order, the Plaintiff will file a proposed class action notice for the Court's approval. The Defendant will produce a class list to the Plaintiff's counsel for use in mailing notice to the class. The Judge vaacted the hearing set for Sept. 7, 2018. A second phase scheduling conference is set for Sept. 27, 2018, at 3:30 p.m. The parties will file a joint scheduling report seven days prior to the Sept. 27, 2018 scheduling conference. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/gnJKit from Leagle.com. Teri Brown, Plaintiff, represented by Ari H. Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan -- cegan@porterscott.com -- Porter Scott, APC, Derek Joseph Haynes -- dhaynes@porterscott.com -- Porter Scott, PC & Lynette Mary Komar -- lkomar@porterscott.com -- Porter Scott. JRV SERVICES: Court Narrows Claims in Pereira FLSA Suit ------------------------------------------------------- The Honorable Eldon E. Fallon granted in part and denied in part the Plaintiff's Motion for Conditional Class Certification in the lawsuit titled ROLANDO PEREIRA v. JRV SERVICES, LLC, ET AL., Case No. 2:18-cv-02720-EEF-DEK (E.D. La.). "Because Pereira is unsuitable to stand as a representative for all JRV workers during the past three years, the collection will be limited to individuals who performed manual labor for JRV on the Marquis Apartments project," Judge Fallon wrote in his Order and Reasons. Judge Fallon ordered the parties to meet, confer, and submit to the Court a joint proposed notice. Judge Fallon also directed the Defendant to provide the Plaintiff with the names, phone numbers, and last known addresses of the potential opt-in members. Plaintiff Rolando Pereira brings this action under the Fair Labor Standards Act to recover alleged overtime wages from Defendants JRV Services, LLC, PRA-SE Construction, LP, and Juana Vargas.[CC] KIA MOTORS: Escorsia Sues over Sale of Defective 2.0 GDI Engine --------------------------------------------------------------- ERIC ESCORSIA, individually and on behalf of all others similarly situated, Plaintiff v. KIA MOTORS AMERICA, INC.; and DOES 1 through 10, inclusive, Defendants, Case No. BC719448 (Cal. Super., Los Angeles Cty., Aug. 27, 2018) alleges that the Defendants' vehicle and its 2.0 gasoline direct injection (GDI) engine were defective and susceptible to sudden and catastrophic failure. The Plaintiff alleges in the complaint that the Defendants knew since 2011, if not earlier, that the 2011-2014 KIA Optima, 2011-2013 KIA Sportage, and 2012-2014 IGA Sorento, vehicles equipped with a 2.0 or 2.4L engine, including the 2012 Kia Optima contained one or more design and manufacturing defects in their engines that results in the restriction of oil flow through the connecting rod bearings, as well as to other vital areas of the engine. This defect -- which typically manifests itself during and shortly after the limited warranty period has expired -- will cause the KIA Vehicle to experience catastrophic engine failure and stalling while in operation. Kia Motors America, Inc. operates as an automobile dealer. The Company offers passenger cars, minivans, sports utility vehicles, crossovers, sedans, vans, and cargo trucks. Kia Motors serves customers worldwide. [BN] The Plaintiff is represented by: Tionna Dolin, Esq. Daniel Tai, Esq. STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattomey.com dtai@slpattorney.com KOHN LAW FIRM: Certification of Class Sought in Cerveny Suit ------------------------------------------------------------ The Plaintiffs move the Court to certify the class described in the complaint of their lawsuit entitled JOSEPH CERVENY and CYNTHIA ZOLANDZ, Individually and on Behalf of All Others Similarly Situated v. KOHN LAW FIRM S.C., Case No. 2:18-cv-01474 (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant them (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiffs assert, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiffs tell the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiffs assert that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiffs are obligated to move for class certification to protect the interests of the putative class, the Plaintiffs contend. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs argue. The Plaintiffs also ask the Court to appoint them as class representatives, and to appoint Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiffs are represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com KOL BARAMA: Faces 1MM Shekels for Keeping Women Off The Air ----------------------------------------------------------- Judy Maltz, writing for Haaretz, reports that an Israeli court on September 20 awarded one million shekels (about $280,000) in damages in a class action suit brought against an ultra-Orthodox radio station that refused to put women on the air. The suit was filed by Kolech, a group of Orthodox feminists, on behalf of ultra-Orthodox women who, as a result of this practice, could not hear the voices of women on Kol Barama, an ultra-Orthodox radio station. Representing Kolech in the case were Orly Erez Likhovsky, Esq. -- pluralist@irac.org -- and Assaf Fink, Esq. of the Israel Religious Action Center -- the advocacy arm of the Reform movement in the country. The suit, which was filed in 2012 in the Jerusalem District Court, is the first class action suit on civil rights in Israel. In September 2014, the court approved its class action nature and determined that the radio station had operated in a discriminatory fashion. Kol Barama contested the decision in the Supreme Court, but its appeal was rejected a year later. The studios of Kol Barama, an ultra-Orthodox radio station. Since then, the Jerusalem District has convened several hearings to determine the amount of damages to be paid. Responding to the court decision, Erez-Likhovsky said: "It is an important milestone in the struggle against discrimination in general and the exclusion of women in particular. It also underscores the importance of class action suits in achieving social justice." It is rare, she said, for a class action suit not to end in a settlement between the sides. "On this count as well," she said, "this case represents a breakthrough." Established in 2009, Kol Barama is based in the ultra-Orthodox town of B'nei Brak. Two years after the suit was filed, Kol Barama lifted its blanket prohibition on putting women on the air, although its still does not allow women singers to be heard. In recent months, several new programs featuring female broadcasters have been launched at the station. The Jerusalem District Court ruled that the one million shekels in damages would be distributed to programs that help empower religious women.[GN] KT HOTELS: Fails to Pay Proper Wages, Shachno Suit Alleges ---------------------------------------------------------- MATTHEW SHACHNO, individually and on behalf of all others similarly situated, Plaintiff v. KT HOTELS LLC, and DOES 1 through 50, Defendants, Case No. 37-2018-0004360 1-CU-OE-CTL (Cal. Super., San Diego Cty., Aug. 28, 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 Shachno was employed by the Defendants as a non-exempt employee. KT Hotels LLC is a California limited liability company. The Company is an independent hotel owner and operator, headquartered in Irvine, California. [BN] The Plaintiff is represented by: Jean-Claude Lapuyade, Esq. JCL LAW FIRM, APC 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 Telephone: (619) 599-8292 Facsimile: (619) 599-8291 E-mail: JLAPUYADE@JCL-LAWFIRM.COM LELAND STANFORD: Fails to Pay Proper Wages, Taylor et al. Claim --------------------------------------------------------------- JEFFREY TAYLOR; CRYSTAL TOWNLEY; and SEAN ZIRKLE, individually and on behalf of all others similarly situated, Plaintiffs v. THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY; and DOES 1-100, Defendants, Case No. 4:18-cv-05248-JSW (N.D. Cal., Aug. 28, 2018) seeks to recover from the Defendant unpaid overtime compensation, prejudgment interest, maximum liquidated damages, reasonable attorneys' fees, and costs. The Plaintiffs were employed by the Defendants as non-exempt employees. The Board of Trustees of The Leland Stanford Junior University provides educational services. The University offers programs in nursing, business, accounting, and biology. The Board of Trustees of The Leland Stanford Junior University operates in the State of California. [BN] The Plaintiffs are represented by: Ace T. Tate, Esq. David E. Mastagni, Esq. Isaac Stevens, Esq. MASTAGNI HOLSTEDT, PC 1912 I Street Sacramento, CA 95811-3151 Telephone: (916) 446-4692 Facsimile: (916) 447-4614 M&T BANK: Court Dismisses Kim Fraud Suit ---------------------------------------- In the case, YOUNG MAN KIM, KENNETH RHEE a/k/a KUN Y RHEE, KKR PARTNERS, INC., individually and on behalf of all others similarly situated, Plaintiffs, v. M&T BANK, Defendant, Civil Action No. 17-11810 (ES) (MAH) (D. N.J.), Judge Esther Salas of the U.S. District Court for the District of New Jersey (i) granted M&T's motion to dismiss the Plaintiffs' Complaint, and (ii) dismissed the Plaintiffs' Complaint without prejudice. On Feb. 15, 2006, Kim, Rhee, and Sei-Jun Park formed KKR and each acquired a 33.33% ownership interest. The purpose of KKR was to own and operate one or more dry-cleaning establishments. In November 2013, after being solicited through various promotional efforts by M&T Bank, the Plaintiffs applied for a business loan at one of M&T's New Jersey branches. On Dec. 6, 2013, KKR executed a form M&T "Term Note," which set out the terms of a $150,000 loan from M&T. That same date, Rhee and Kim, on behalf of KKR, also executed a "Business Access Line of Credit Note" and a "Loan Agreement." Also on Dec. 6, 2013, Kim executed an "Unlimited Guaranty" with M&T, in which Kim promised to guarantee the payment of KKR's loan. KKR defaulted on the loan, and M&T subsequently sued KKR, Rhee, and Kim in the Supreme Court of New York, Erie County. KKR and Rhee raised the defense of lack of personal jurisdiction, but due to the lack of funds available for defense these parties lost their challenge and judgment was entered against them in the amount of $150,458.89. Rhee then filed for relief under Chapter 7 of the Bankruptcy Code in the U.S. Bankruptcy Court for the District of New Jersey. As for Kim, the Plaintiffs allege that M&T failed to serve Kim with the complaint in that suit as a strategic decision to divide the resources available to the joint Defendants to oppose the Initial Loan Action. M&T subsequently filed a separate guarantee action against Kim in the Supreme Court of New York, Erie County. According to the Plaintiffs, the Guarantee Action was filed separately by M&T Bank from the Initial Loan Action so that the Defendants could not share lawyers and expenses, and thereby mount a more economic, joint defense. Kim moved to dismiss the Guarantee Action for lack of personal jurisdiction and an inconvenient forum. Kim's counsel asked M&T's counsel if M&T would waive oral argument on the personal-jurisdiction motion as a courtesy, and M&T refused. The Plaintiffs allege that M&T's refusal was motivated by a desire to increase the cost of litigation, so Kim would have to spend many times more than M&T to resolve the personal-jurisdiction issue. The state court granted Kim's motion and dismissed the case. The Plaintiffs filed the instant putative class-action Complaint against M&T on Nov. 18, 2017. They seek to represent the class of persons and entities residing in the State of New Jersey who entered into any loan or guarantor agreement with M&T Bank and who were not informed of M&T Bank's intent to file suit in New York and/or Buffalo in the event of a dispute. The Plaintiffs allege violations of the New Jersey Consumer Fraud Act (Count I), negligence and gross negligence (Count II), equitable fraud (Count III), fraud in the inducement (Count IV), negligent misrepresentation (Count V), and unjust enrichment (Count VI). For each claim, they seek, among other things, rescission of all Loan Documents and Unlimited Guaranty and rescission of all similar M&T Bank loan documents and guarantees and a declaration that all loan agreements and guarantees subject to this Count entered into by the Plaintiffs and Class members are void and have no legal effect. On Feb. 5, 2018, M&T moved to dismiss the Plaintiffs' Complaint under Federal Rules of Civil Procedure 12(b)(1), (12)(b)(6), and 9(b). M&T argues that the Plaintiffs' Complaint should be dismissed because the Plaintiffs' claims seek recovery for harm to the corporate entity, KKR; therefore, the individual Plaintiffs, Kim and Rhee, lack standing to pursue them. The Plaintiffs opposed M&T's motion on March 19, 2018. Their response is twofold: (i) the claims brought by Kim and Rhee are not derivative of any claims KKR may have had; and (ii) even if the Court were to find that the Plaintiffs' claims were derivative, Kim and Rhee may assert those claims because KKR is insolvent. Judge Salas finds that KKR and Rhee's claims are barred under the doctrine of res judicata. Under New York law, which applies in the case, res judicata bars successive litigation of all claims based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was. If the Plaintiffs were unhappy with the result of that proceeding, the proper recourse was a state court appeal. Because they could have presented the same claims they now assert as defenses or counterclaims in the state action, the doctrine of res judicata bars the litigation against M&T who was the state court Plaintiff. As a result, KKR and Rhee's instant claims against M&T must be dismissed. The Judge turns to the surviving portion of the Complaint -- Kim's claims under the Unlimited Guaranty. She finds that the forum selection clause is unambiguous and nothing in the plain language of the clause suggests exclusivity. The Plaintiffs claim that the plain language of this provision states that the guarantor submits only to the nonexclusive jurisdiction of the New Jersey courts. But the clause does not employ the term "only," nor does it use the words "exclusive," "shall," "must," or any other terms that might suggest exclusivity. The Judge is unpersuaded by the Plaintiffs' allegation that they were misled into acquiescing to M&T's forum selection clause under a misapprehension of the meaning M&T would later put upon that clause, once litigation was commenced. Their "misapprehension," whether a result of their failure to read the clause or an ignorance of the clause's obligation, does not invalidate a forum selection clause. And M&T's failure to explain the terms of an agreement does not constitute fraud, overreaching or unconscionability so as to void a forum selection clause. Even giving the Plaintiffs every favorable inference, the Judge still finds that the forum selection clause in the Unlimited Guaranty (which is identical in each agreement) is permissive and thus does not vest jurisdiction only in New Jersey. Because the clause is permissive, she agrees with M&T that its exercise of its rights under the permissive forum selection clause was not a secret, dubious, or deceptive act. Kim's claims -- all premised on either M&T's alleged misrepresentations of the permissive forum selection clause that provides for the "nonexclusive" jurisdiction of New Jersey courts or M&T's alleged omission of its intent to file claims elsewhere (as is permitted by the permissive forum selection clause) -- therefore must be dismissed. For these reasons, Judge Salas granted M&T's motion to dismiss the Plaintiffs' Complaint, and dismissed without prejudice the Plaintiffs' Complaint. To the extent that the Plaintiffs can cure the deficiencies noted in the Memorandum, they may file an amended complaint within 30 days. Failure to do so will result in dismissal with prejudice. Given its ruling, the Judge needs not address the parties' alternative arguments. A full-text copy of the Court's Aug. 28, 2018 Memorandum is available at https://is.gd/jQixUy from Leagle.com. YOUNG MAN KIM & KKR PARTNERS, INC., Plaintiffs, represented by ROBERT JAMES BASIL, THE BASIL LAW GROUP, P.C. KENNETH RHEE, also known as KUN Y RHEE, Plaintiff, represented by NEIL GROSSMAN, BRONSTEIN, GEWIRTZ & GROSSMAN, ESQS. & ROBERT JAMES BASIL, THE BASIL LAW GROUP, P.C. M&T BANK, Defendant, represented by FRED W. HOENSCH -- fred.hoensch@piblaw.com -- Parker Ibrahim & Berg LLP, JAMES PAUL BERG -- james.berg@piblaw.com -- PARKER IBRAHIM & BERG LLP & SCOTT W. PARKER -- scott.parker@piblaw.com -- PARKER IBRAHIM & BERG LLP. MACTANZ INC: Fails to Pay Proper OT to Waiters, Nguyen Suit Says ---------------------------------------------------------------- STEVEN NGUYEN, individually and on behalf of all others similarly situated, Plaintiff v. MACTANZ, INC. d/b/a MAC AND BOB'S RESTAURANT, Defendant, Case No. 7:18-cv-00421-EKD (W.D. Va. Aug. 28, 2018) is brought against the Defendant to recover unpaid wages, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act. The Plaintiff Nguyen was employed by the Defendant as waiter. Mactanz, Inc. d/b/a Mac and Bob's Restaurant is located in Salem, Virginia, across the street from Roanoke College. The Company is famous for its huge, great-tasting calzones and a wide range of American menu items including wings, steaks, salads, burgers, seafood, sandwiches, and pasta dishes. [BN] The Plaintiff is represented by: William C. Tucker, Esq. TUCKER LAW FIRM, PLC 690 Berkmar Circle Charlottesville, VA 22901 Telephone: (434) 978-0100 Facsimile: (434) 978-0101 E-mail: bill.tucker@tuckerlawplc.com - and - Drew N. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Telephone: (817) 479-9229 Facsimile: (817) 260-0801 E-mail: drew@herrmannlaw.com MAEFIELD DEVELOPMENT: Underpays Lease Operators, Orosco Alleges --------------------------------------------------------------- JESUS OROSCO, individually and on behalf of all others similarly situated vs. MAEFIELD DEVELOPMENT CORPORATION, Defendant, Case No. 4:18-cv-00037 (W.D. Tex., Aug. 28, 2018) is an action for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, costs, and attorneys' fees, as a result of the Defendant's failure to pay the Plaintiff and the class lawful overtime compensation for hours worked in excess of 40 hours per week. Mr. Orosco was employed by the Defendant as lease operator from April 2018 to August 2018. Maefield Development Corporation, a real estate company, acquires, develops, and sells undervalued and underutilized properties in the United States. Its projects include retail and office spaces, and single-family and multi-family residences. Maefield Development Corporation was founded in 1991 and is based in Indianapolis, Indiana with an additional office in Miami, Florida. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC 650 South Shackleford Road, uite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com MARKETSOURCE INC: Must Produce Delgado Class Members' Contact Info ------------------------------------------------------------------ In the case, RAY DELGADO, Plaintiff, v. MARKETSOURCE, INC., et al., Defendant, Case No. 17-cv-07370-LHK (VKD) (N.D. Cal.), Judge Virginia K. Demarchi of the U.S. District Court for the Northern District of California, San Jose Division, granted Mr. Delgado's request for discovery of contact information for the putative class members. In the putative class action, Delgado sues MarketSource and unnamed Doe Defendants for violating California labor laws. The case was originally filed in Santa Clara County Superior Court, but MarketSource subsequently removed the action to the Court asserting federal jurisdiction pursuant to 28 U.S.C. Sections 1332(d) and 1453. The parties dispute whether Mr. Delgado may obtain discovery of the contact information of all putative class members in the state of California. The parties submitted a joint discovery letter describing their respective positions on July 30, 2018. Mr. Delgado alleges that he worked for MarketSource as a district manager in Santa Clara County from approximately April 3, 2013 to April 18, 2017. He says that the wage statements issued to him by MarketSource failed to separately itemize all deductions in violation of California Labor Code Section 226(a), and that MarketSource failed to pay all earned wages to him immediately upon termination of his employment in violation of California Labor Code Sections 201 and 203. He alleges that MarketSource uniformly administered a corporate policy and practice of failing to accurately itemize employee wage statements and failing to pay all wages owed and due to employees immediately upon termination. Mr. Delgado seeks to pursue these claims on behalf of two classes: a. Wage Statement Class: All current and former employees who worked for the Defendant in the State of California at any time from Nov. 30, 2016, to the present. b. Final Wages Class" All former employees of the Defendant in the State of California whose employment was involuntarily terminated by the Defendant at any time from Nov. 30, 2014, to the present. MarketSource generally denies Mr. Delgado's allegations, and objects to the request for certification of a class or classes. Mr. Delgado moves to compel MarketSource to disclose contact information for the current and former employees who are putative members of what he has defined as the Wage Statement Class and the Final Wages Class. He seeks this discovery to support his anticipated motion for class certification. MarketSource objects to the discovery on several grounds, including that Mr. Delgado has not made a prima facie showing that MarketSource has committed any violation of California labor laws, let alone a prima facie showing that his allegations meet the requirements for maintaining a class action. It separately objects to the scope of Mr. Delgado's discovery to the extent he seeks contact information for employees who worked at locations other than the location where he worked, or contact information for employees who have entered into arbitration agreements with class action waivers. Judge Demarchi granted Mr. Delgado's request for discovery of contact information for putative class members, subject to the further conditions. She finds that the discovery Mr. Delgado seeks falls squarely within the bounds of discovery necessary to substantiate the class allegations he has made. She also finds that the possible existence of putative class members who have signed arbitration agreements should not limit the scope of pre-certification discovery of such members' contact information, for at least two reasons. First, it is not clear at this early stage of the case whether the class action waivers to which MarketSource refers are enforceable against the employees who might otherwise be members of a class. Second, even if some putative class members could not join a class, they may well have discoverable information bearing on the class action requirements of Rule 23, such as how widespread the alleged violations are (or are not) among MarketSource's current and former employees. The Judge holds that Mr. Delgado may obtain discovery of contact information for those putative class members that fall within the Wage Statement Class or the Final Wages Class as those classes are defined in the complaint. MarketSource will produce the information requested in Mr. Delgado's Interrogatories Nos. 1 and 4. The parties' discovery dispute letter addresses only the discoverability of the contact information of certain current and former MarketSource employees. The parties are ordered to confer expeditiously regarding the procedures governing the production and use of employee contact information in this case, including: (1) whether a Belaire-West notification process should be used; (2) whether employee contact information will be provided directly to Mr. Delgado's counsel or to a third-party administrator; and (3) whether any additional protections for employee confidential information are warranted. If the parties concur on these points, they will jointly file with the Court a stipulation documenting their agreement. If the parties do not agree, they may submit their dispute to the Court using the Court's discovery dispute procedures A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/qFrMxM from Leagle.com. Ray Delgado, Plaintiff, represented by Kristen Michelle Agnew -- kagnew@diversitylaw.com -- Diversity Law Group, APC, Larry W. Lee -- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Nicholas Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group & William Lucas Marder -- bill@polarislawgroup.com -- Polaris Law Group, LLP. MarketSource, Inc., a Maryland Corporation, Defendant, represented by Kevin Dennis Sullivan -- ksullivan@ebglaw.com -- Epstein Becker & Green, P.C. & Michael Stuart Kun -- mkun@ebglaw.com -- Epstein Becker & Green, P.C. MATCH GROUP: McCloskey Securities Suit Dismissed ------------------------------------------------ In the case, MARY McCLOSKEY, et al., Plaintiff, v. MATCH GROUP, INC., et al., Defendants, Case No. 3:16-CV-549-S (N.D. Tex.), Judge Karen Gren Scholer of the U.S. District Court for the Northern District of Texas, Dallas Division, granted both the Match Group Defendants' Motion to Dismiss the Second Amended Class Action Complaint, and the Underwriter Defendants' Motion to Dismiss the Second Amended Class Action Complaint. The Plaintiffs bring the putative class action against the Match Group Defendants and the Underwriter Defendants on behalf of themselves and all other persons or entities who purchased or acquired Match Group securities pursuant or traceable to the Match Group's Registration Statement and Prospectus issued in connection with the company's Initial Public Offering ("IPO"), which commenced on Nov. 19, 2015. The Plaintiffs allege that the Registration Statement issued in connection with the IPO contained materially false and/or misleading facts, omitted other facts necessary to make the statements not misleading, and was otherwise not prepared in accordance with the governing rules and regulations in violation of Sections 11 and 15 of the Securities Act. The Plaintiffs aleege violations of Sections 11 and 15 of the Securities Act of 1933 against the Match Group Defendants and the Underwriter Defendants, Per Special Order 3-3-18, the case was transferred from the docket of Judge Sam A. Lindsay to the docket of the Court on March 8, 2018. On Feb. 26, 2016, Plaintiff David M. Stein filed a Class Action Complaint. Plaintiff Stephany Kam-Wan Chan filed a second Class Action Complaint on March 9, 2016, asserting identical claims against the same Defendants. On April 28, 2016, the Court consolidated these two cases. The Plaintiffs assert two claims in the Second Amended Complaint. Count I alleges that the Match Group Defendants and the Underwriter Defendants violated Section 11 of the Securities Act by making false and materially misleading statements in the Registration Statement. Count II alleges that the Individuals Defendants are liable as control persons pursuant to Section 15 of the Securities Act. On June 9, 2016, the Court appointed Plaintiffs McCloskey and Craig Kneller to serve as the lead Plaintiffs. The Plaintiffs filed the Amended Complaint on Sept. 9, 2016. On Nov. 8, 2016, the Match Group Defendants and the Underwriter Defendants each filed a motion to dismiss. On Sept. 27, 2017, the Court denied the motions to dismiss without prejudice and ordered the Plaintiffs to cure the deficiencies outlined in the motions. On Oct. 30, 2017, the Plaintiffs filed the Second Amended Complaint. The Match Group Defendants and the Underwriter Defendants each filed a second motion to dismiss on Dec. 14, 2017. The parties appeared before the Court for oral argument on the pending motions on June 19, 2018. Judge Scholer finds that Match Group accurately reported its historical results in the Non-Dating Business for a specified period and made no projections or representations about the future performance of that business. When viewed in context, and taking into consideration the cautionary language that historical results are not indicative of future results, none of the statements at issue was materially misleading. There is no substantial likelihood that including the facts alleged by the Plaintiffs to be omitted would have significantly altered a reasonable investor's perception of the total mix of information available in the prospectus as a whole. She therefore dismisses the Plaintiffs' Section 11 claim based on the theory that Defendants made a materially false or misleading statement in the offering materials. Next, the Judge dismisses the Plaintiffs' claim under Item 303 of Regulation S-K. She finds that the Plaintiffs fail to plausibly allege a material omission of information required to be disclosed under Item 303. First, their contention that Match Group should have disclosed that prior to the IPO there was a shift in focus in the Non-Dating Business ignores the IPO disclosures. Second, with regard to the SAT redesign, the Plaintiffs do not plead sufficient facts that could establish a "trend" at the time of the IPO with respect to declining Non-Dating Business revenue attributable to the redesigned SAT -- much less a trend that would have been material in the context of Match Group's overall revenue. Third, as to the College Board's partnership with Khan Academy, the only fact the Plaintiffs plead that attempts to quantify the effect of this purported trend on Match Group's business is an irrelevant one. Finally, as to the delayed government contract, she finds that the Plaintiffs do not allege that this was a particularly important contract or that the delay was a symptom of broader issues that were reasonably likely to affect the business over the long term. The Judge also dismisses the Plaintiffs' claims under Item 503 of Regulation S-K. The Plaintiffs' Section 15 control person claim fails because they've failed to allege a primary violation under the Securities Act. Therefore, she dismisses the Plaintiffs' Section 15 control person claim against the Individual Defendants. For the reasons she stated, Judge Scholer granted both the Match Group Defendants' Motion to Dismiss and the Underwriter Defendants' Motion to Dismiss. In denying the previous motions to dismiss without prejudice and allowing the Plaintiffs the opportunity amend their pleadings, the Court stated, although it has concerns whether the Plaintiffs can allege facts to support the securities claims asserted, it is unclear at this juncture whether allowing them to amend their pleadings would be futile. The Judge now finds that further amendment would be futile. The Plaintiffs were given the opportunity to amend, and failed to cure the deficiencies set forth in the Match Group Defendants' and Underwriter Defendants' previous motions to dismiss. Therefore, the Plaintiffs' claims are dismissed with prejudice and without leave to amend. A full-text copy of the Court's April 24, 2018 Memorandum Opinion and Order is available at https://is.gd/nntnS4 from Leagle.com. Mary McCloskey, Designated as Lead Plaintiff per [28] Order, Plaintiff, represented by Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Alexa J. Mullarky -- amullarky@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Jamie Jean McKey -- jmckey@kendalllawgroup.com -- Kendall Law Group LLP, Jeffrey H. Squire -- squire@bespc.com -- Bragar Eagel & Squire PC, pro hac vice, Joe Kendall, Kendall Law Group LLP, 3232 McKinney, Ste 700, Dallas, Texas 75204 , Kara M. Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP & Todd H. Henderson -- bragar@bespc.com -- Bragar Eagel & Squire PC. Craig Kneller, Designated as Lead Plaintiff per [28] Order, Plaintiff, represented by Lesley F. Portnoy, Glancy Prongay & Murray LLP, Lionel Z. Glancy, Glancy Prongay & Murray LLP, pro hac vice, Ex Kano S. Sams, II, Glancy Prongay & Murray LLP, pro hac vice, Jamie Jean McKey, Kendall Law Group PLLC, Joe Kendall, Kendall Law Group PLLC, Kara M. Wolke, Glancy Prongay & Murray LLP, Melissa A. Fortunato, Bragar Eagel & Squire PC, pro hac vice & Todd H. Henderson, Bragar Eagel & Squire PC. Stephany Kam-Wan Chan, Consol Plaintiff, represented by Lesley F. Portnoy, Glancy Prongay & Murray LLP, Lionel Z. Glancy, Glancy Prongay & Murray LLP, pro hac vice, Brian Schall, Goldberg Law PC, J. Alexander Hood, II, Pomerantz LLP, Jeremy Alan Lieberman, Pomerantz LLP, Marc Gorrie, Pomerantz LLP, Michael Goldberg, Goldberg Law PC, Patrick Dahlstrom, Pomerantz LLP, Peretz Bronstein, Bronstein Gewirtz & Grossman LLC & Willie Briscoe, The Briscoe Law Firm. Match Group Inc, Gregory R Blatt, Gary Swidler, Michael H Schwerdtman, Gregg J Winiarski & Joseph M Levin, R. Thaddeus Behrens -- thad.behrens@haynesboone.com -- Haynes & Boone LLP, Bradley R. Wilso -- BRWilson@wlrk.com -- Wachtell Lipton Rosen & Katz & Stephen R. DiPrima -- SRDiPrima@wlrk.com -- Wachtell Lipton Rosen & Katz. JP Morgan Securities LLC, Allen & Company LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc, BMO Capital Markets Corp, Barclays Capital Inc, BNP Paribas Securities Corp, PNC Capital Markets LLC, Cowen and Company LLC, SG Americas Securities LLC, Fifth Third Securities Inc & Oppenheimer & Co Inc, Defendants, represented by Yolanda Cornejo Garcia -- YGARCIA@SIDLEY.COM -- Sidley Austin LLP, Penny P. Reid -- PREID@SIDLEY.COM -- Sidley Austin LLP & Yvette Ostolaza, Sidley Austin LLP. Adam Marigliano, Shen Shen & Liwei Sun, Movants, represented by Jeremy Alan Lieberman, Pomerantz LLP, Brian Schall, Goldberg Law PC, J. Alexander Hood, II, Pomerantz LLP, Michael Goldberg, Goldberg Law PC & Patrick Dahlstrom, Pomerantz LLP. Kenneth Varin, Movant, represented by Brian P. Lauten -- blauten@brianlauten.com -- Brian Lauten, P.C.. MCKESSON CORP: Conditional Certification of Hunt Class Partly OK'd ------------------------------------------------------------------ In the case, VERONICA L. HUNT, Plaintiff, v. McKESSON CORPORATION, Defendant, Case No. 2:16-cv-1834 (W.D. Pa.), Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania (i) granted in part and denied in part the Plaintiff's Motion for 29 U.S.C. Section 216(b) Conditional Certification, and (ii) denied as moot the Plaintiff's Motion for Sanctions. On May 31, 2017, Hunt filed the operative Complaint in the case, the Second Amended Individual, Collective and Class Action Complaint ("SAC"), against McKesson. The SAC pleads two counts: (1) failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"); and (2) failure to pay overtime in violation of the Pennsylvania Minimum Wage Act ("PMWA"). The Plaintiff alleges that McKesson misclassified her and others similarly situated as exempt from federal and Pennsylvania overtime pay protections. She filed her initial Complaint on Dec. 8, 2016. Following a Stipulation to Amend Complaint, she filed her Amended Complaint on May 31, 2017, altering the scope of the putative class. On June 19, 2017, McKesson filed a Motion to Dismiss, seeking dismissal of the collective allegations. The Court granted the Motion to Dismiss, concluding that the purported collective did not fulfill the minimal threshold showing requisite under Zavala v. Wal Mart Stores Inc., as there was not a sufficient relationship within the class or within one or more subclasses to fulfill the relatively light, but nonetheless very real, burden for collective action treatment. The Plaintiff filed her SAC on Sept. 20, 2017, with the same two counts but with an amended FLSA purported collective of all persons who were classified as exempt in position Professional Grade 103 and below, with the exception of manager and supervisor roles in Grade 103 and below, in the United States at any time during the three years prior to the filing of the initial complaint until the change in classification on Oct. 23, 2016, in positions that were reclassified as non-exempt as of October 2016. McKesson filed its second Motion to Dismiss, arguing that the Plaintiff failed to allege a common policy that caused harm to the Plaintiff and "similarly situated" employees. The Court granted the Motion to Dismiss on Dec. 19, 2017, to the extent that by that grant, the "Grade 103 and below" criterion was narrowed to solely "Grade 103," a narrowing to which the Plaintiff consented at oral argument. The Motion to Dismiss was otherwise denied. Following the litigation of two Motions to Dismiss, the parties sought the Court's involvement in a discovery dispute. The dispute largely revolved around what discovery should be conducted prior to (or, if) the Court grants conditional certification and what discovery should be conducted after any such conditional certification. On Feb. 7, 2018, the Court ultimately ordered McKesson to answer specific interrogatories and document requests, with the Court making some modifications as to the scope of the requests. Pending before the Court is the Plaintiff's Motion for 29 U.S.C. Section 216(b) Conditional Certification, and her Motion for Sanctions. The Plaintiff's Motion for Sanctions asks the Court to toll the statute of limitations as to the FLSA claim to March 26, 2018, as a sanction for McKesson's noncompliance with the Court's Order of Feb. 7, 2018, related to the discovery dispute. At this point, Judge Hornal cannot conclude that the commonality of generally applicable employment and compensation policies necessarily pales in comparison to individualized determinations of liability. Indeed, an examination of the merits of the claims and defenses does not occur at this stage of the proceedings. McKesson will have an opportunity at final certification to challenge whether those who have opted in actually did have sufficiently similar levels of discretion and judgment to overcome any differences in duties and titles. Therefore, he will grant conditional certification for the collective of all persons who worked at McKesson Corp. in the United States and were (1) classified as exempt in positions in Grade 103, (2) had a position with a scope of follow standard practices and procedures in analyzing situations or data from which answers can be readily obtained, at any time between March 23, 2015, and Oct. 23, 2016. The Judge concludes based on his review of the record and his knowledge of the case (including specifically the discovery dispute) that it would have been entirely reasonable for McKesson to timely comply with the production request and to produce the remaining matrices if not prior to the Court's intervention then certainly within 14 days of the Feb. 7, 2018, Conference and Order. Therefore, he will toll the statute of limitations from Feb. 21, 2018, to March 26, 2018. Although the parties were embroiled in a discovery dispute prior to the Court's involvement beginning on Feb. 7, 2018, the fact that such a dispute arose is insufficient in and of itself to justify any additional tolling in the case. The Court promptly held a status conference on the dispute and issued an Order that same day. The tolling period Ordered is sufficient to account for McKesson's delay in producing the additional job matrices, which were critical to the Plaintiff's Motion for Conditional Certification. The Judge also acknowledges that disputes relating to the form and content of notice would be best resolved by the parties, so he will allow the parties to further meet and confer regarding the notice and notice procedures. However, he will toll the FLSA limitations period for the additional period beginning 10 days from the date of the Order accompanying this Opinion until the date the Court approves such Notice. As to the Plaintiff's Motion for Sanctions that solely seeks relief in the form of tolling the statute of limitations of the FLSA claim, the Judge addressed the equities of tolling, and his decision to toll as a result of the discovery dispute adequately addresses and sufficiently provides the relief sought in the Plaintiff's Motion for Sanctions. As a result, tje Plaintiff's Motion for Sanctions is denied as moot. For the reasons stated in his Opinion, Judge Hornak granted in part and denied in part the Plaintiffs' Motion for 29 U.S.C. Section 216(b) Conditional Certification; and denied as moot the Plaintiff's Motion for Sanctions. An appropriate Order will issue. A full-text copy of the Court's Aug. 28, 2018 Opinion is available at https://is.gd/iXDG8l from Leagle.com. VERONICA L. HUNT, on behalf of herself and all others similarly situated, Plaintiff, represented by John R. Linkosky -- linklaw@comcast.net -- Joseph H. Chivers -- jchivers@employmentrightsgroup.com -- Laura L. Ho -- lho@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice & Megan Ryan -- mryan@gbdhlegal.com -- Goldstein, Borgen, Dardarian & Ho, pro hac vice. MCKESSON CORPORATION, Defendant, represented by Alice S. Johnston -- ajohnston@schnader.com -- Schnader, Harrison, Segal & Lewis, LLP, Jo Bennett -- jbennett@schnader.com -- Schnader Harrison Segal & Lewis LLP, pro hac vice & Rachel Horton -- rhorton@schnader.com -- Schnader Harrison Segal & Lewis LLP, pro hac vice. MDB TRANSPORTATION: Underpays Truck Drivers, Smith Suit Alleges --------------------------------------------------------------- MICHAEL SMITH; GREGORY CHEAIRS; JOSE MANUEL CASTELLANOS; and FRANCISCO MACAL, individually and on behalf of all others similarly situated, Plaintiff v. MDB TRANSPORTATION, INC.; MDB LOGISTICS, INC.; AJR TRUCKING, INC.; U.S. HARBOR LOGISTICS GROUP, INC.; KHACHATUR KUDIKYAN; HAKOP KUDIKYAN; JOHN DELATORE, and DOES 1 through 50, inclusive, Defendants, Case No. BC719084 (Cal. Super., Los Angeles Cty., Aug. 27, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendants as truck drivers. MDB Transportation, Inc. a California Corporation engaged in the trucking business. [BN] The Plaintiff is represented by: Allen K. Hutkin, Esq. HUTKIN LAW FIRM 1220 Marsh Street San Luis Obispo, CA 93401-3326 Telephone: (805) 554-1500 Facsimile: (805) 544-1532 E-mail: ahutkin@hutkinlaw.com - and - Jennifer Kramer, Esq. JENNIFER KRAMER LEGAL, APC 5015 Eagle Rock Boulevard, Suite 202 Los Angeles, CA 90041 Telephone: (213) 955-0200 Facsimile: (213) 226-4358 E-mail: Jennifer@laborlex.com MDL 2804: Mercy House v. Purdue Pharma L.P., et al., Consolidated ----------------------------------------------------------------- Mercy House Teen Challenge, a not-for-profit Corporation on behalf of itself and all others similarly situated, the Plaintiff, v. Purdue Pharma L.P., Purdue Pharma Inc.; Cephalon Inc.; Teva Pharmaceutical Industries Ltd.; Teva Pharmaceuticals USA, Inc.; Janssen Pharmaceuticals Inc.; Johnson & Johnson; Noramco Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc., now known as Janssen Pharmaceuticals Inc.; Janssen Pharmaceutical Inc., now known as Janssen Pharmaceuticals Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Allergan PLC, formerly known as: Actavis PLS; Watson Pharmaceuticals, Inc., now known as Actavis Inc.; Watson Laboratories Inc.; Actavis Pharma, Inc., formerly known as: Watson Pharma, Inc.; Actavis LLC; Mallinckrodt PLC; Mallinckrodt LLC; McKesson Corporation; Cardinal Health Inc.; merisourceBergen Drug Corporation; and Purdue Frederick Company, Inc., the Defendants, Case No. 3:18-cv-00584, was transferred from the U.S. District Court for the Southern District of Mississippi, to the U.S. District Court for the Northern District of Ohio (Cleveland) on Sept. 6, 2018. The District Court Clerk assigned Case No. 1:18-op-46070-DAP to the proceeding. The Mercy House case is being consolidated with MDL 2804 in re: NATIONAL PRESCRIPTION OPIATE LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on December 5, 2017. These cases concern the alleged improper marketing of and inappropriate distribution of various prescription opiate medications into cities, states and towns across the country. Responding plaintiffs' positions on centralization vary considerably. Plaintiffs in over 40 actions or potential tag-along actions support centralization. Plaintiffs in 15 actions or potential tag-along actions oppose centralization altogether or oppose transfer of their action. In addition to opposing transfer, the State of West Virginia suggests that the MDL Panel delay transferring its case until the Southern District of West Virginia court decides its motion to remand to state court. Third party payor plaintiffs in an Eastern District of Pennsylvania potential tag-along action (Philadelphia Teachers Health and Welfare Fund) oppose centralization of third partypayor actions. Western District of Washington plaintiff City of Everett opposes centralization and, alternatively, requests exclusion of its case. Northern District of Illinois tag-along Plaintiff City of Chicago asks the Panel to defer transfer of its action until document discovery is completed. The Presiding Judge in the MDL is Sarah S. Vance, United States District Judge. The lead case is 1:17-md-02804-DAP.[BN] Attorneys for Mercy House Teen Challenge: John A. Eaves, Jr., Esq. 101 North State Street Jackson, MS 39201 Telephone: (601) 355 7961 Facsimile: (601) 355 0530 E-mail: johnjr@eaveslaw.com MDL 2819: Court Won't Dismiss Restasis(R) Antitrust Suit -------------------------------------------------------- The United States District Court for the Eastern District of New York issued an Opinion denying Defendants' Motion to Dismiss the case captioned IN RE RESTASIS (CYCLOSPORINE OPHTHALMIC EMULSION) ANTITRUST LITIGATION THIS DOCUMENT APPLIES TO: 1199SEIU National Benefit Fund et al. v. Allergan, Inc., 17-cv-6755; American Federation of State, County & Municipal Employees District Council 37 Health & Security Plan v. Allergan, Inc., 1 7-cv-6684; Sergeants Benevolent Association Health & Welfare Fund v. Allergan, Inc., 17-cv-7300; Philadelphia Federation of Teachers Health & Welfare Fund v. Allergan, Inc., 17-cv-7377; St. Paul Electrical Workers' Health Plan v. Allergan, Inc., 18-cv-41; FWK Holdings, LLC v. Allergan, Inc., 18-cv-677; Rochester Drug Co-Operative, Inc. v. Allergan, Inc., 18-cv-970; KPH Healthcare Services, Inc., a/k/a Kinney Drugs, Inc., v. Allergan, Inc., 18-cv-974; International Union of Operating Engineers Local 501 Security Trust Fund v. Allergan, Inc., 1 8-cv-749; United Food & Commercial Workers Unions & Employers Midwest Health Benefits Fund et al. v. Allergan, Inc., 18-cv-816; Self Insured Schools of California v. Allergan, Inc., 18-cv-968; Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund v. Allergan, Inc., 1 8-cv-969; and Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund v. Allergan, Inc., 1 8-cv-972. No. 18-MD-2819 (NG) (LB). (E.D.N.Y.). The Defendant moves to dismiss the Consolidated Complaints for failure to adequately allege causation. This multi-district litigation arises out of defendant Allergan's alleged actions to improperly delay the Food and Drug Administration (FDA) in approving generic competitors to its dry-eye medication Restasis(R). The Plaintiffs allege that Allergan engaged in a number of unlawful, anticompetitive measures to delay generic drug manufacturers from entering the market and to allow Allergan to continue charging inflated monopoly prices for Restasis(R). These measures include: (1) filing frivolous citizen petitions with the FDA to delay its approval of generics; (2) defrauding the U.S. Patent and Trademark Office (USPTO) into issuing second-wave patents on Restasis(R) by submitting a false and misleading affidavit; (3) wrongfully listing those patents in the FDA's Orange Book, which delayed the generic approval process; (4) suing generic manufacturers for infringing on those fraudulently obtained patents without a good-faith belief that its suits could succeed; and (5) transferring the patents to the Saint Regis Mohawk Tribe (and then leasing them back) in order to avoid their invalidation by renting the Tribe's sovereign immunity. Are the Citizen Petitions Protected by Noerr-Pennington? The Court must determine whether Allergan's citizen petitions are protected by the First Amendment and therefore immune from antitrust liability pursuant to the Noerr-Pennington doctrine. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965). The Noerr-Pennington doctrine shields citizen petitions that are not wholly baseless from liability. Sham petitions.,those that are not genuinely aimed at procuring favorable government action, are unprotected. For petitions that are essentially nothing more than an attempt to smother competition, the First Amendment protections are lost and the Sherman Act applies. In its motion, Allergan does not address the second (subjective) prong of the PRE test. In view of plaintiffs' allegations in the complaints, it is easily established that Allergan's subjective intent in filing citizen petitions was to frustrate generic competition of Restasis(R). The Plaintiffs allege that Allergan chose not to appeal any of the denials of its petitions to a federal court, knowing that it was unlikely to win an appeal and preferring instead to file successive petitions because that would be more disruptive to the FDA approval process. No other inference is offered by defendant as to why it did not appeal the denials. The Plaintiffs also allege that Allergan made scientific misrepresentations to the USPTO to obtain the patents, filed frivolous litigation to delay the generics, and engaged in bad-faith dealings with the Mohawk Tribe to circumvent the invalidation of their patents. It is highly plausible that a company willing to engage in such conduct was intending to delay the entry of generics into the market, rather than seeking to protect the public health, when it filed its citizen petitions. Allergan does, on the other hand, contend that the plaintiffs' allegations do not satisfy the first prong of the PRE test that the citizen petitions were objectively baseless. Allergan exclusively relies on the FDA's responses to its petitions to argue that they were not shams. It claims that, because the FDA partially granted the first two petitions, these petitions cannot be deemed baseless. It further argues that the FDA's responses to all three petitions show that Allergan's submissions prompted the agency to consider revisions to, and actually to revise, its draft guidance as well as to alter its approach towards its review of ANDAs. In this case, the FDA's responses fall far short of demonstrating that the plaintiffs' allegations of objective baselessness are implausible. The FDA denied every substantive request made by Allergan in each of its three petitions. Allergan repeatedly requested that the FDA do away with in vitro testing for bioequivalency for Restasis(R), and the agency emphatically rejected this request each time it was made. Of course, that the petitions were denied in all substantive respects, standing alone, is not necessarily enough to plausibly allege that they were objectively baseless. In Apotex, 823 F.3d at 61-62, the Second Circuit affirmed the district court's conclusion that the plaintiff had failed to show that a citizen petition was objectively baseless where the only fact Apotex had pled other than the timing of the FDA's decision on defendant Accorda's citizen petition is that Accorda's citizen petition was ultimately fruitless. But, unlike in Apotex, plaintiffs here do not merely allege that the petitions were denied. Plaintiffs allege that, given the draft guidance's strict requirements for proving bioequivalence through in vitro studies, there would be no reason to expect any difference in clinical results between Restasis® and the generic drug, and therefore, in vivo testing would have served no purpose. In fact, the plaintiffs allege that in vivo testing would have delayed the FDA approval process, been more costly, involved human testing, which the FDA endeavors to avoid, and most importantly, would have been less reliable, because Restasis(R) has only a modest clinical benefit and any differences between the brand and generic would have been small. Therefore, plaintiffs have sufficiently alleged that, at the time it filed its petitions, Allergan could have had no reasonable expectation that the FDA would agree to require in vivo studies to show bioequivalence. In sum, whether, on all of the evidence, a factfinder would find that the petitions were not baseless remains to be seen. Certainly, the inferences Allergân draws, considering the other possible inferences, are not sufficient to find as a matter of law that the First Amendment shields Allergan's citizen petitions from antitrust liability. Is it Plausible that Allergan's Alleged Anticompetitive Actions Caused a Delay in the FDA Approval Process? Allergan asserts that, even if the citizen petitions are not immune from antitrust liability, plaintiffs have failed to plausibly allege that the petitions delayed the FDA's approval of generic drugs. It points to 21 U.S.C. Section 355(q)(1)(A), which provides that the FDA may not delay approval of an ANDA in order to address a citizen petition unless the FDA determines, upon reviewing the petition, that a delay is necessary to protect the public health. From this statute, Allergan argues that its citizen petitions could not have delayed FDA approval of generic entry. Allergan's arguments are not sufficient to overcome the plausibility of plaintiffs' claims. Plaintiffs allege that, despite the existence of 21 U.S.C. Section 355(q)(1)(A), the FDA in practice does delay approval of generics while responding to citizen petitions, even when those petitions turn out to be baseless. Plaintiffs cite two reasons for the FDA's practice: (1) it fears litigation if it grants an ANDA without fully addressing the citizen petition; and (2) it has limited resources, and responding to a citizen petition takes time away from the approval process. As other courts have recognized, the inferences drawn are plausible. It is also reasonable to infer, as plaintiffs ask me to do, that the stay resulting from the patent infringement litigation led the FDA to divert its resources away from the ANDAs at issue. The FDA may have prioritized reviewing applications for other generic drugs, because, even if tentative approval were granted to the ANDAs, a drug subject to a stay would not be able to enter the market for some time possibly over a decade if the patent infringement suit were successful and the ANDA applicant had to wait until the patent expired. A full-text copy of the District Court's September 17, 2018 Opinion and Order is available at https://tinyurl.com/ydejjta3 from Leagle.com. American Federation of State, County and Municipal Employees District Council 37 Health & Security Plan, 1199SEIU National Benefit Fund, 1199SEIU Greater New York Benefit Fund, 1199SEIU National Benefit Fund for Home Care Workers & 1199SEIU Licensed Practical Nurses Welfare Fund, Plaintiffs, represented by Adam Gitlin -- agitlin@lchb.com -- Lieff Cabraser Heimann & Bernstein, pro hac vice, Bruce Leppla -- bleppla@lchb.com -- Lieff Cabraser Heimann & Bernstein, pro hac vice, Dan Drachler -- ddrachler@zsz.com -- Zwerling, Schachter & Zwerling, LLP, David Rudolph -- drudolph@lchb.com -- Lieff Cabraser Heimann & Bernstein, pro hac vice, Eric B. Fastiff -- efastiff@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, pro hac vice, Jonathan D. Selbin -- jselbin@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Kelly Kristine McNabb -- jselbin@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Robert S. Schachter -- rschachter@zsz.com -- Zwerling, Schachter & Zwerling, LLP, pro hac vice, Sona R. Shah -- sshah@zsz.com -- Zwerling, Schachter & Zwerling, LLP & Christina H.C. Sharp -- chc@girardgibbs.com -- Girard Gibbs LLP. CVS Pharmacy, Inc., Rite AID Corp. & Rite Aid Hdqtrs. Corp., Plaintiffs, represented by Andrew Martin Erdlen -- aerdlen@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller & Eric Bloom -- ebloom@hangley.com -- Hangley Aronchick Segal Pudlin & Schiller. Allergan, Inc., Defendant, represented by Jack Wesley Hill -- wh@wsfirm.com -- Ward, Smith & Hill, PLLC, Jason McKenney -- jmckenney@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, pro hac vice, M. Sean Royall -- sroyall@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Matthew Cameron Parrott -- mparrott@gibsondunn.com -- Gibson. Dunn & Crutcher LLP, Michael S. Royall, Gibson Dunn & Crutcher, Richard Hale Cunningham, Gibson Dunn & Crutcher LLP, pro hac vice & Eric J. Stock -- estock@gibsondunn.com -- Gibson Dunn & Crutcher LLP. MICHIGAN: Sued Over Poor Huron Valley Prison Conditions ------------------------------------------------------- Ryan J. Farrick, writing for Legal Reader, reports that Huron Valley Correctional Center, serving as Michigan's only all-women prison, may run afoul of the United States Constitution. Two experts who studied the Ypsilanti-area facility say the conditions within Huron Valley amount to "cruel and unusual punishment." Their report was filed in federal court on Sept. 6, bolstering a lawsuit's claim that the prison is overcrowded and poorly maintained. Bad ventilation and a lack of recreational and exercise facilities may also be contributing to what attorneys say is a mental health crisis within the facility. The reports, which the Detroit Free Press says were filed by the plaintiffs' attorneys in a proposed class-action suit, alleges that many prisoners are "packed into former closets and other converted rooms." Clothing is scarce, medical treatment is substandard and many inmates are so closely confined that they've little opportunity to leave their cells. The lawsuit poses an interesting divergence from the Corrections Department's own statements. The Michigan Department of Corrections says that Huron Valley's current population is around 2,100. Several years ago, that number was closer to 2,257. Either way, the number's lower than the building's holding capacity of 2,400. Attorneys have an interesting explanation: that Huron Valley's capacity has been inflated by more than 500 since 2010. Cells have been added within existing walls, taking away from space that had once been used for recreation, storage and day rooms. Randy Atlas, a Florida architect who specializes in prison design, was noted by the Free Press as saying that the Michigan Department of Corrections did convert offices and other suable spaces into cells. But when Huron Valley began construction and expansion operations, it never obtained requisite building permits. In some cases, the jail didn't even use 'architectural plans' as a guide. Prison conditions at Huron Valley, says Mr. Atlas, "deprive WHV inmates of the minimal civilized measure of life's necessities." After examining prison blueprints, Mr. Atlas said he could identify at least 14 units 'housing close to 1,100 prisoners' that could be considered "overcrowded and constituting cruel and unusual punishment." Some units, Mr. Atlas said, contained less than 6 ½ square feet of space per prisoner. Clinical psychologist Ellen Koch, who's worked with Huron Valley inmates, says overcrowding is aggravating mental health problems. Depression and suicide attempts are all on the rise, says Koch, in a facility that's quite different from Michigan's other, threat-segregated prisons. "The current overcrowding situation is causing significant mental health problems for the prisoners based on the lack of access to materials, space, classes and food, as well as the constant and excessive noise level," wrote Ms. Koch. The Michigan Attorney General's Office has said the prisoners must demonstrate subjection to intentional, 'wanton' indifference to justify their claims of a constitutional violation. "Allegations of temporary inconveniences are insufficient to state a claim," they said. [GN] MICROCHIP TECHNOLOGY: Levi & Korsinsky Files Class Action Lawsuit ----------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Microchip Technology Inc. ("Microchip") (NASDAQGS: MCHP) between March 2, 2018 and August 9, 2018. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the District of Arizona. To get more information go to: https://www.zlk.com/pslra-1/microchip-technology-inc-loss-form?wire=3 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) Microsemi's financial performance was underperforming Microchip's expectations; and (2) as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, including positive statements about Microsemi, were materially misleading and/or lacked a reasonable basis. If you suffered a loss in Microchip you have until November 16, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a national firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com[GN] MLK EXPRESS: Huggins Seeks to Certify Drivers Class and Sub-Class ----------------------------------------------------------------- The Plaintiffs in the lawsuit entitled GREGORY GIBBS and TATONYA HUGGINS on behalf of themselves and those similarly situated v. MLK EXPRESS SERVICES, LLC, a Florida Limited Liability Company; AG PLUS EXPRESS, LLC, a Florida Limited Liability Company; AMAZON.COM, INC., a Foreign for Profit Corporation; AMAZON LOGISTICS, INC., a Foreign for Profit Corporation; AMAZON.COM SERVICES, INC., a Foreign for Profit Corporation; MANIHONG M. PHANOUVONG, Individually, and LILA V. PHANOUVONG, Individually, Case No. 2:18-cv-00434-SPC-MRM (M.D. Fla.), ask the Court to enter an order conditionally certifying a collective action for unpaid minimum and overtime wages, permitting, under Court supervision, notice to: a. All Amazon local delivery drivers or driver associates who were solely paid a purported "day rate" and who worked for any company that contracted with Amazon.com to provide local delivery services at any location within the United States, within the three year period preceding June 18, 20181 (the "Amazon Local Driver Class"); and b. All local delivery drivers or driver associates, paid by the MLK Defendants, who were solely paid a purported "day rate" within the three year period preceding June 18, 2018 (the "MLK Sub-Class"). The Plaintiffs also ask the Court to: -- require the Defendants to identify all putative members of the proposed classes by providing a list of their names, last known addresses, dates of employment, the subcontracting company through which the putative class member worked, cell phone number, and e-mail addresses in electronic and importable format, within 14 days of an entry of an order; -- permit the Plaintiffs' counsel to send Court-approved notice of this action to the putative class members of the proposed collective action via U.S. Mail, e-mail, and text message; -- permit the Plaintiffs' counsel to send a reminder notice via e-mail and text message to putative class members at the half-way point in the notice period; -- approve a 90-day opt-in period from the date the Court-approved notice is sent during which the putative class members may join this case by returning their written consents; and -- allow putative class members to electronically sign and return the Consent to Become an Opt-In Plaintiff.[CC] The Plaintiffs are represented by: Andrew R. Frisch, Esq. Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com PBotros@forthepeople.com NANTHEALTH INC: Certification of Two Classes Sought in Deora Suit ----------------------------------------------------------------- Southeastern Pennsylvania Transit Authority and Michael Fontaine, Lead Plaintiffs in the lawsuit titled ATUL SINGH DEORA, et al. v. NANTHEALTH, INC., et al., Case No. 2:17-cv-01825-TJH-MRW (C.D. Cal.), move for an order certifying two classes: (1) Securities Act Class: All persons or entities who purchased or acquired NantHealth, Inc., common stock in or traceable to the IPO; and (2) Exchange Act Class: All persons or entities who purchased any NantHealth, Inc., common stock between June 1, 2016, and May 1, 2017. Excluded from both Classes are (i) Defendants, (ii) NantHealth's officers and directors, (iii) any entity in which Defendants have or had a controlling interest, (iv) members of Defendants' immediate families and the legal representatives, heirs, successors, or assigns of any such excluded party, and (v) any judge presiding over this matter, his or her spouse, and all persons within the third degree of relationship to either of them and the spouse of such persons. The Lead Plaintiffs seek to certify and represent the Securities Act Class in their claims for violations of the Securities Act of 1933. These claims are: (1) violations of Section 11 of the Securities Act against Defendants NantHealth, Patrick Soon-Shiong, Paul Holt, Michael S. Sitrick, Kirk K. Calhoun, Mark Burnett, Edward Miller, and Michael Blaszyk; (2) violations of Section 12(a)(2) of the Securities Act against NantHealth; and (3) violations of Section 15 of the Securities Act against Patrick Soon-Shiong and Paul Holt. The Lead Plaintiffs seek to certify and represent the Exchange Act Class in their claims for violations of the Securities Exchange Act of 1934. These claims are (1) violations of Section 10(b) of the Exchange Act and Rule 10b-5 against NantHealth and Patrick Soon-Shiong; and (2) violations of Section 20(a) of the Exchange Act against Patrick Soon-Shiong and Paul Holt. Lead Plaintiffs also ask the Court to appoint Gibbs Law Group LLP and Kehoe Law Firm, P.C., as Class Counsel under Rule 23(g) of the Federal Rules of Civil Procedure. The Court will commence a hearing on February 4, 2019, to consider the Motion.[CC] The Lead Plaintiffs are represented by: Eric H. Gibbs, Esq. David Stein, Esq. Amy M. Zeman, Esq. Amanda M. Karl, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612-1406 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: ehg@classlawgroup.com ds@classlawgroup.com amz@classlawgroup.com amk@classlawgroup.com - and - John A. Kehoe, Esq. KEHOE LAW FIRM, P.C. Two Penn Center Plaza 1500 JFK Boulevard, Suite 1020 Philadelphia, PA 19102 Telephone: (215) 792-6676 E-mail: jkehoe@kehoelawfirm.com - and - Javier Bleichmar, Esq. BLEICHMAR FONTI & AULD LLP 7 Times Square, 27th Floor New York, NY 10036 Telephone: (212) 789-1341 E-mail: jbleichmar@bfalaw.com NCB MANAGEMENT: Made Unsolicited Calls, Gogue Suit Alleges ---------------------------------------------------------- DOROTHY GOGUE, individually and on behalf of all others similarly situated, Plaintiff vs. NCB MANAGEMENT SERVICES, INC., and DOES 1 through 10, Defendants, Case No. 2:18-cv-07320 (C.D. Cal., Aug. 21, 2018) seeks to stop the Defendant's practice of making unauthorized phone calls to cellular telephones under the Telephone Consumer Protection Act. NCB Management Services, Inc. provides call center/business process outsourcing solutions in the United States. The company was founded in 1994 and is based in Trevose, Pennsylvania. [BN] The Plaintiff is represented by: Patric A. Lester, Esq. CONSUMER ATTORNEY ADVOCATES INC. 5694 Mission Center Road, #358 San Diego, CA 92108 Telephone: (619) 665-3888 Facsimile: (314) 241-5777 E-mail: pl@lesterlaw.com NDM HOSPITALITY: Underpays Cook Supervisors, Wright Suit Claims --------------------------------------------------------------- KADEEM ANTHONY WRIGHT, individually and on behalf of all others similarly situated, Plaintiff v. NDM HOSPITALITY SERVICES PAYROLL, LLC d/b/a BURGERFI; DAF HOSPITALITY, LLC; MPF HOSPITALTY, LLC; NRF HOSPITALITY, LLC; DANIEL FALCONE; NICOLAS R. FALCONE; and MATTHEW FALCONE, Defendants, Case No. 77145862 (Fla. Cir., Miami-Dade Cty., Aug. 28, 2018) is an action to recover damages, interest, costs, and attorneys' fees, as a result of the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Mr. Wright was employed by the Defendants as cook supervisor from December 15, 2015 to December 22, 2017. NDM Hospitality Services Payroll, LLC d/b/a Burgerfi is a Florida Limited Liability company conducting business in Miami-Dade, Florida. The Company owns, develops, and operates hospitality assets in the Food & Beverage and Resort Management sectors. [BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. Max L. Horowitz, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com mhorowitz@rgpattorneys.com NEVADA: Writ of Mandamus Petition Dismissed ------------------------------------------- The Supreme Court of Nevada issued an Order dismissing Petition for Writ of Mandamus in the case captioned MICHAEL MURRAY; AND MICHAEL RENO, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE KATHLEEN E. DELANEY, DISTRICT JUDGE, Respondents, and JASMINKA DUBRIC; A CAB, LLC; A CAB SERIES LLC; EMPLOYEE LEASING COMPANY; AND CREIGHTON J. NADY, Real Parties in Interest. No. 75877. (Nev.) This original petition for a writ of mandamus challenges a district court order denying petitioner class representatives' motion to intervene in the competing Minimum Wage Act (MWA) action in which real parties in interest have jointly moved for conditional certification of the same or a similar class for settlement purposes and preliminary approval of a proposed class settlement agreement. Petitioners submitted to this court a declaration and exhibits showing that, the district court entered summary judgment in favor of the class in the MWA action in which petitioners are representatives. Although petitioners state that they are unsure how the judgment affects their request for writ relief since real parties in interest have not indicated whether they intend to continue pursuing class certification and settlement approval, we conclude that the judgment renders this petition moot and thus we dismiss it without prejudice. In that regard, the final judgment in the competing class action appears to obviate petitioners' reasons for seeking intervention, at least at this time, as the class claims have been resolved and real parties in interest may proceed differently in the underlying case. If petitioners still believe they should be allowed to intervene, they may file a renewed request to do so in district court addressing the change in the status of the class claims, and if denied, they may seek writ relief in this court, if warranted. A full-text copy of the state Supreme Court's September 13, 2018 Opinion is available at https://tinyurl.com/y97mdmzw from Leagle.com. NEW HAMPSHIRE: Mulls New Psychiatric Hospital After Complaints -------------------------------------------------------------- Nancy West, writing for Manchester Link, reports that after fighting to change New Hampshire's policy of incarcerating mentally ill people who haven't been charged with or convicted of a crime at the prison's Secure Psychiatric Unit, advocates say they are pleased the state is looking to change. The state has put out a Request for Information to build a 100-bed forensic psychiatric hospital for patients currently receiving care at the Secure Psychiatric Unit, the New Hampshire Hospital, both in Concord, and the Laconia Designated Receiving Facility. "The envisioned facility would consolidate forensic care within one location and provide a comprehensive program for the forensic patients," according to the request posted on the Department of Health and Human Services' website. The population served would include civilly committed individuals found not guilty by reason of insanity, incompetent to stand trial, patients deemed too dangerous to themselves or others to be housed in the state's psychiatric hospital, forensic patients that are also diagnosed with developmental disability, and others who would benefit from a comprehensive forensic program. "It's exciting. I take this as a very positive step," said state Rep. Renny Cushing, D-Hampton, a longtime advocate for change at the men's prison unit. It's a first step, but the proposal must get through the legislative process to get funded, he said. "I can't help but think this is DHHS' response to the recent flurry of court filings to head off a possible class-action lawsuit," Cushing said. Court action He was referring to a half dozen petitions filed in federal court demanding Secure Psychiatric Unit patients be transferred to a licensed psychiatric hospital, a federal lawsuit alleging patient mistreatment including tasering, and patient families fighting the state's attempts to take away their guardianship. Several of the petitions were filed with the help of Advocates for Ethical Mental Health Treatment, a citizens group co-founded by Wanda Duryea and Beatrice Coulter. "We have fought really hard and I am glad to see this step in the right direction," Duryea said. Coulter added: "Hopefully, in the long term it will create an environment that fosters evidence-based best practices and civil rights safeguards." Lawmaker support The Secure Psychiatric Unit has been the target of public scrutiny as more advocates, patients and their families have taken court action and spoken publicly to the press and at legislative hearings. Duryea, Cushing, and Rep. Peter Schmidt, D-Dover, waited at the New Hampshire Hospital on Sept. 6 to support Nancy Heath of Milan, who is fighting to maintain guardianship of her adult son, Tony Heath, who has been civilly committed to the prison's Secure Psychiatric Unit deemed incompetent to stand trial. Tony Heath, who filed a civil lawsuit claiming he was tasered for refusing a routine blood draw, was transported to the New Hampshire Hospital on Sept. 6 for the hearing wearing a prison uniform, leg chains and handcuffs. He struggled to eat a hamburger while handcuffed during the three-hour wait for the hearing that was ultimately cancelled. Nancy Heath and Tony both support having Duryea, Cushing, Schmidt and InDepthNH.org present for the continuation of the confidential guardianship hearing at the small courtroom on the hospital grounds as allowed by RSA 494-A:8. Judge Barbara Maloney has previously denied opening the hearing to anyone but the participants. Andrew Butler's case also drew public attention as the popular former high school athlete's friends rallied around him. The 21-year-old from Hollis was released from the Secure Psychiatric Unit in June, but is still under the control of the state because he was originally committed to the New Hampshire Hospital for two years. He hadn't committed a crime, but was transferred from the New Hampshire Hospital to the Secure Psychiatric Unit after a violent outburst, which his father, Doug Butler, blamed on medication. Doug Butler wants Andrew to obtain treatment from a private psychiatrist. Members of the Hollis community raised funds for Andrew and held a march from the prison in Concord to the federal court to protest him being held in a prison. Wait lists The state is also hoping to solve another serious problem with the delivery of mental health services – the backlog of people who spend days and sometimes weeks awaiting treatment in hospital emergency rooms. "Through this collaboration and development of a new facility, the added inpatient capacity is expected to reduce the number of psychiatric patients waiting in hospital emergency rooms for inpatient treatment at New Hampshire Hospital," the request states. The request was issued by the New Hampshire Department of Health and Human Services, New Hampshire Hospital and the Department of Corrections, and the Secure Psychiatric Unit to solicit information regarding the construction and/or operation of a forensic hospital. Forensic licensing as a healthcare facility in the state and initial Joint Commission accreditation will be required. The request says the state is considering all available solutions that would ensure the wellbeing of the patient population including: Option #1 - Construction and Operation of a New Facility. Option #2 - Renovation of Existing Facility and/or Addition of New Facilities and Operation of Facilities. Option #3 - Construction of a New Facility which the State of New Hampshire will then Operate. Option #4 - Renovation of Existing Facility and/or Addition of New Facilities. The Department of Health and Human Services oversees the New Hampshire Hospital, the state's psychiatric hospital as it stands now. But the Secure Psychiatric Unit at the men's prison is part of the prison and run by the Department of Corrections. The New Hampshire Hospital provides acute, inpatient psychiatric services for children, adults, and the elderly who need active treatment and other essential supports within a continuum of community-based care. "The proposed facility would be constructed and operated in accordance with the Joint Commission Accreditation for Acute Psychiatric Hospitals," the request states. It also says it is not a guarantee the facility will be built. [GN] NOVATION COMPANIES: Oral Argument Held in NJ Carpenters Class Suit ------------------------------------------------------------------ Novation Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that an oral argument has been held in the purported class action suit filed by the New Jersey Carpenters' Health Fund. On May 21, 2008, a purported class action case was filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund, on behalf of itself and all others similarly situated. Defendants in the case included Mortgage Funding Corporation (NMFC) and NovaStar Mortgage, Inc. ("NMI"), wholly-owned subsidiaries of the Company, and NMFC's individual directors, several securitization trusts sponsored by the Company ("affiliated defendants") and several unaffiliated investment banks and credit rating agencies. The case was removed to the United States District Court for the Southern District of New York. On June 16, 2009, plaintiff filed an amended complaint. Plaintiff seeks monetary damages, alleging that the defendants violated Sections 11, 12 and 15 of the Securities Act of 1933, as amended, by making allegedly false statements regarding mortgage loans that served as collateral for securities purchased by plaintiff and the purported class members. On August 31, 2009, the Company filed a motion to dismiss the plaintiff's claims, which the court granted on March 31, 2011, with leave to amend. Plaintiff filed a second amended complaint on May 16, 2011, and the Company again filed a motion to dismiss. On March 29, 2012, the court dismissed plaintiff's second amended complaint with prejudice and without leave to replead. Plaintiff filed an appeal in the United States Court of Appeals for the Second Circuit (the "Appellate Court"). On March 1, 2013, the Appellate Court reversed the judgment of the lower court, which had dismissed the case. Also, the Appellate Court vacated the judgment of the lower court which had held that plaintiff lacked standing, even as a class representative, to sue on behalf of investors in securities in which plaintiff had not invested, and the appellate court remanded the case back to the lower court for further proceedings. On April 23, 2013 plaintiff filed its memorandum with the lower court seeking a reconsideration of the earlier dismissal of plaintiff's claims as to five offerings in which plaintiff was not invested, and on February 5, 2015, the lower court granted plaintiff's motion for reconsideration and vacated its earlier dismissal. On March 8, 2017, the affiliated defendants and all other parties executed an agreement to settle the action, with the contribution of the affiliated defendants to the settlement fund being paid by their insurance carriers. The court certified a settlement class and granted preliminary approval to the settlement on May 10, 2017. One member of the settlement class objected to the settlement and sought a stay of the final settlement approval hearing on the ground that it did not receive notice of the settlement and had no opportunity to timely opt out of the class. After the court rejected the motion for a stay, the objector filed an appeal and requested a stay of the court proceedings pending disposition of the appeal. The Appellate Court denied the temporary stay of the court proceedings pending a decision on the objector's request for a stay. The oral argument on the appeal is scheduled for September 2018. Novation Companies said, "Assuming the settlement is approved and completed, which is expected, the Company will incur no loss. The Company believes that the affiliated defendants have meritorious defenses to the case and, if the settlement is not approved, expects them to defend the case vigorously." Novation Companies, Inc., through its subsidiary, Healthcare Staffing, Inc., provides outsourced health care staffing and related services primarily to Community Service Boards in Georgia. It also owns a portfolio of mortgage securities. The company was formerly known as NovaStar Financial, Inc. and changed its name to Novation Companies, Inc. in May 2012. Novation Companies, Inc. was founded in 1996 and is based in Kansas City, Missouri. NRJM INC: Rodino Suit Notice Okayed ; Case Stayed Through March 19 ------------------------------------------------------------------ The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on September 20, 2018, in the case styled Paul Rodino v. NRJM, Inc., et al., Case No. 1:18-cv-05167 (N.D. Ill.), relating to a hearing held before the Honorable Gary Feinerman. The minute entry states that: -- Joint motion to approve form of notice of collective action and to stay proceedings is granted; -- The October 30, 2018 status hearing is stricken and re−set for March 19, 2019, at 9:00 a.m.; and -- By agreement, this case is stayed through March 19, 2019.[CC] ODWALLA: Faces Class Action Over Misleading Product Labels ---------------------------------------------------------- Courthouse News Service reported that a federal judge refused on Sept. 19 to dismiss a class action alleging that Odwalla, a subsidiary of The Coca-Cola Co., misled customers by labeling its products "100% Juice" with "No Added Sugar." OHR PHARMACEUTICALS: Continues to Defend Class Suit in New York --------------------------------------------------------------- OHR Pharmaceutical Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend itself in a class action suit filed in the Southern District of New York. On February 14, 2018, plaintiff, Jeevesh Khanna, commenced an action in the Southern District of New York, alleging that several current and former officers violated federal securities laws between June 24, 2014 and January 4, 2018. On August 7, 2018, the lead plaintiffs, now George Lehman and Insured Benefits Plans, Inc. filed an amended complaint, stating that the class period be April 8, 2014 through January 4, 2018. The plaintiffs did not quantify any alleged damages in their complaint but, in addition to attorneys' fees and costs, they seek maintain the action as a class action to recover damages on behalf of themselves and other persons who purchased or otherwise acquired our stock during the putative class period and purportedly suffered financial harm as a result. OHR Pharmaceutical SAID, "We dispute these claims and intend to defend the matter vigorously. This litigation could result in substantial costs and a diversion of management's resources and attention, which could harm our business and the value of our common stock." OHR Pharmaceutical, Inc., a clinical-stage pharmaceutical company, focuses on the development of novel therapies for the treatment of ophthalmic diseases. OHR Pharmaceutical, Inc. is headquartered in New York, New York. ONE KEY: Adero Law Firm Begins Mineworkers' Union Legal Action -------------------------------------------------------------- Ian Kirkwood, writing for Newcastle Herald, reports that some casual mineworkers at a number of Hunter mines are being "terminated" on Sept. 3 and switched between subsidiaries of labour hire firm One Key Resources as it moves to cope with a courtroom loss to the mineworkers' union. But what would normally be two-way stoush between employer and union has turned into a three-way affair with class action firm Adero Law injecting itself into the long-running battle over casual employment in the coal industry. Adero arrived in the Hunter earlier this year when it announced a class action against labour hire firm Chandler Macleod over employment conditions at BHP's Mount Arthur mine. It has now begun legal action over aspects of the One Key case, and has been writing to affected employees offering to help them, much to the ire of the union. The total number of mines and mineworkers involved in the situation is unclear, but Glencore says there are some at its Bulga and Mount Owen mines and Adero says Wambo is also affected. In an interview on Sept. 7, the national president of the mineworkers' division of the Construction, Forestry, Maritime, Mining and Energy Union, Tony Maher, said the One Key case was one of two major cases the union had been pursuing against "dodgy enterprise agreements". The other case was Workpac v Skene, and both cases were decided recently by full bench hearings of the Federal Court. Employer groups have been up in arms about the union push, with lawyers Clayton Utz saying the Workpac case would "send shockwaves through many businesses who rely on a casualised workforce, as it makes it much harder to classify and treat employees as 'casual' where they work set, inflexible hours, and there is a degree of certainty about their ongoing work". The One Key case centred on the union's objection to an enterprise agreement that was originally signed by only three people but was later used to employ more than 1100. After the union court victory overturned the agreement, One Key put the subsidiary concerned, One Key Workforce, into voluntary administration under Ernst & Young on the last day of August, with the intention of transferring the affected employees to another company in the group. The union accepted this move, but Adero -- which challenged the agreement -- wrote to the One Key workers telling them that they were likely to be owed substantial amounts of pay and entitlements under the federal government's Fair Entitlements Guarantee scheme as a result of the court case, and urged them to be careful before signing anything. "One Key should not be liquidating any of it's entities or transferring any employees until a full audit of back pay owing to each current and former One key Workforce employee is completed," Adero principal Rory Markham said on Sept. 9. "They have grown tired of the new enterprise agreements, contracts and promises that result in nothing but a new ABN on their payslip or logo on their shirt." One Key has not responded to requests for comment, but documents show the affected employees were originally offered work with the new subsidiary "conditional on [their] resignation" from the old one. But a day after Adero advised the workers not to resign, they received letters from the administrator saying One Key Workforce would not be able to pay them beyond "5:59am Monday, September 10, 2018" and that "your employment with the company will be terminated" at that time. They would be offered work with the new company once "your employment with One Key Workforce Pty Ltd ceases". The union advised its members to accept the new work offer, but not to resign their old jobs, for the same reason given by Adero. Ernst & Young was set to hold a first creditors' meeting in Brisbane on Wednesday, Sept. 12, which the union says it will attend. It has told its members it has "reached a settlement for members employed by a number of One Key companies, including One Key Workforce". "Whilst there have been some recent legal issues that have held up the compensation that will flow from that agreement, we are confident these will be resolved in the near future," the union says. It described Adero as "a little-known Canberra law firm" cashing in on the union's success in challenging sub-standard conditions. Mr Markham dismissed the union's criticism and said its clients "simply want the security of a full-time job and to be paid what they are owed". [GN] ONEWEST BANK: Underpays Relationship Associate Bankers, Suit Says ----------------------------------------------------------------- CARLOS A. INCHAUSTI, individually and on behalf of all others similarly situated, Plaintiff v. ONEWEST BANK, a Division of CIT BANK, N.A.; CITBANK, N.A.; and DOES 150, Defendants, Case No.BC719407 (Cal. Super., Los Angeles Cty., Aug. 28, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Inchausti was employed by the Defendants as relationship associate banker from September 2015 to August 2017. OneWest Bank Group LLC operates as a bank holding company for OneWest Bank, National Association, which provides personal and commercial banking services. The company was founded in 2009 and is based in Pasadena, California. [BN] The Plaintiff is represented by: James R. Hawkins, Esq. Gregory Mauro, Esq. Michael Calvo, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com Michael@jameshawkinsaplc.com ONTARIO: Sued Over Solitary Confinement in Jails ------------------------------------------------ CTV News London reports that a Superior Court judge has ruled a lawsuit alleging the Ontario government violated the rights of inmates by placing them inappropriately in solitary confinement can proceed as a class action. The province didn't oppose certification of the 600-million dollar action. The representative plaintiff maintains his already fragile mental health was exacerbated by stints in segregation. The suit includes inmates diagnosed with severe mental illnesses such as schizophrenia or psychosis, who served time in segregation in provincial facilities since January 1st, 2009.[GN] OPEN DOOR: To File Joint Report on Scope of Release in Conde Deal ----------------------------------------------------------------- In the case, CARLOS CONDE, et al., Plaintiffs, v. OPEN DOOR MARKETING, LLC, et al., Defendants, Case No. 15-cv-04080-KAW (N.D. Cal.), Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California has ordered the parties to file a joint status report, stating whether they will limit the scope of the release to the claims asserted in the operative complaint. Plaintiffs Shikwana Jennings and Lisa Drake filed the putative class and collective action against Defendants 20/20 Communications, Inc. ("20/20"), Open Door, Larry Clark, and Jerrimy Farris, alleging violations of the Fair Labor Standards Act ("FLSA") and various California labor laws. On Aug. 16, 2018, the Court held a hearing on the Plaintiffs' unopposed motion for settlement approval, which seeks to settle the claims of the Plaintiffs and the 176 individuals who opted in to the collective action. Having considered the papers filed by the parties, the relevant legal authority, and the arguments advanced by the counsel, Judge Westmore intends to deny the motion for settlement approval. She finds that while the parties addressed most of the Court's concerns, including the scope of Section V of the Settlement Agreement and Release, the Court continues to have concerns that the proposed release is overbroad. Specifically, the parties seek to release any wage and hour claims that were raised or could have been raised in the operative complaint. As noted by the Court, however, the courts in the district routinely reject FLSA settlements when the scope of the release goes beyond the overtime claims asserted in the complaint. The Settlement Agreement also lists various types of claims that would be released, but states that those claims are not exhaustive. At the hearing, Defendant 20/20 distinguished Otey by pointing to Selk v. Pioneers Memorial Healthcare District as a case where the district court approved a settlement that released claims not pled in the complaint because additional consideration was given to the California opt-in plaintiffs. A careful reading of Selk, however, does not suggest that the settlement released claims outside of the complaint. There was no finding by the district court that a release outside of the alleged claims was justified by any additional independent consideration to the California opt-ins. Here, the Judge finds that the Plaintiffs stated in their supplemental belief that the parties have agreed to allocate a double share to California workweeks in light of the California state law claims which were asserted in the case, and in recognition of the additional remedies afforded by California law that the Nevada opt-ins would not have been able to obtain. In other words, the double share is simply an acknowledgment that the California opt-ins are already entitled to a higher proportion of the settlement because they are releasing California-specific claims that are pled in the complaint itself. This is distinguishable from a showing that any of the opt-in Plaintiffs are receiving independent consideration for the claims that were not pled in the operative complaint. Without independent consideration for such claims, and given that the Court has not been able to locate any decision in the district that approved a settlement of the parties' proposed scope, the Judge will not approve the settlement agreement as written. Accordingly, Judge Westmore ordered the parties to file a joint status report, by Sept. 12, 2018, stating whether they will limit the scope of the release to the claims asserted in the operative complaint. If the parties are not so inclined, she will issue her order denying the Plaintiff's motion for settlement approval. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/UvTPp7 from Leagle.com. Carlos Conde, individually and on behalf of all others similarly situated, Shikwana Jennings, individually and on behalf of all others similarly situated & Lisa Drake, individually and on behalf of all others similarly situated, Plaintiffs, represented by Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C. Open Door Marketing, LLC, Larry Dale Clark & Jerrimy Farris, Defendants, represented by Kristin Alexandria Smith -- ksmith@fosteremploymentlaw.com -- Foster Employment Law & Michael Leslie Thompson, Lehr Middlebrooks Vreeland and Thompson, P.C. 20/20 Communications, Inc., Defendant, represented by Christopher William Decker -- christopher.decker@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC & Wendy V. Miller -- wendy.miller@ogletree.com -- Ogletree Deakins Law Firm, pro hac vice. PATIENT INNOVATION: Tomala Moves to Certify FLSA Class of Dancers ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned The Estate of Alexandra Tomala, To be administered by Boguslawa Tomala, individually and on behalf of all persons similarly situated, as class representative under Illinois Law and/or as members of the Collective as permitted under the Fair Labor Standards Act v. Patient Innovation Center, NFP and Christopher Gay and Angelica Magana Named as an Employers under the FLSA and IWPCA, Case No. 1:17-cv-08530 (N.D. Ill.), asks the Court to: a) certify the requested Fair Labor Standards Act Collective and allow an opt-in period of 90 days; b) order the Defendants to produce the full names, aliases, addresses, phone numbers, e-mail addresses and last date(s) of performance of all potential putative class members who worked for the Defendants; c) the last known work and home physical and e-mail addresses and phone numbers of the dancers, who worked for the Defendant from August 30, 2015, to the present, no later than two weeks after the date of the entry of the Order; d) approve a notice based on a form to be submitted by the Plaintiff; e) approve transmittal of the Notice to members of the class via US Mail, e-mail, text message, on site posting and on site distribution; and f) grant the Plaintiff's Tolling Request, tolling all FLSA claims from the filing of this Motion to the date the collective members join the suit.[CC] The Plaintiff is represented by: John C. Ireland, Esq. THE LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin, IL 60177 Telephone: (630) 464-9675 Facsimile: (630) 206-0889 E-mail: attorneyireland@gmail.com PERSONAL CHOICE: Fails to Pay Proper Wages, Johnson Alleges ----------------------------------------------------------- CASSANDRA JOHNSON, individually and on behalf of all others similarly situated, Plaintiff v. PERSONAL CHOICE LINEN AND LAUNDRY, INC. a/k/a PERSONAL CHOICE DRY CLEANING; SCOTTY'S DRY CLEANERS; TAILORS & SHOE REPAIR LL; COVE SPOT MASTER DRY CLEANERS; ALTERATIONS & SHOE REPAIR LLC; IOANNIS GIANNOULIS;JOHN GIANNOULIS; and LUCY GIANNOULIS, Defendants, Case No. 0:18-cv-62066-FAM (S.D. Fla., Aug. 31, 2018) is an action against the Defendants for failure to pay the Plaintiff minimum wage and overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Johnson was employed by the Defendants as a non-exempt employee from May 1, 2018 to July 24, 2018. Her duties consisted of washing, drying, smoothing clothes, removing wrinkles, and folding laundry and processing payments. Personal Choice Linen and Laundry, Inc. a/k/a Personal Choice Dry Cleaning serves Palm Beach and Broward Counties, and the rest of the southern Florida area. The Company is engaged in dry cleaning and garment care. [BN] The Plaintiff is represented by: Jordan Richards, Esq. JORDAN RICHARDS, PLLC 401 East Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Telephone: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com livia@jordanrichardspllc.com jake@jordanrichardspllc.com melissa@jordanrichardspllc.com PHH CORP: $5.1MM Attorneys' Fees Awarded in Dodge Suit ------------------------------------------------------ Judge Fernando M. Olguin of the U.S. District Court for the Central District of California granted the requested attorney's fees, expenses and service award in the case, SHERI DODGE, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. PHH CORPORATION, et al., Defendants, Case No. SA CV 15-1973 FMO (AFMx) (C.D. Cal.). Pursuant to the Court's Order Re: Final Approval of Class Action Settlement; Approval of Attorney's Fees, Expenses & Service Award, filed contemporaneously with the filing of the Judgment, the Judge, in accordance with the terms of the Settlement Agreement, ordered that (i) Plaintiffs Sheri Dodge, Neil Dodge, Ram Agrawal, and Sarita Agrawal will each be paid a service payment of $2,500; (ii) the class counsel will be paid $5.1 million in attorney's fees, and $36,704.82 in costs; and the Claims Administrator, KCC, will be paid for its fees and expenses. All the class members who did not validly and timely request exclusion from the settlement have released their claims, as set forth in the Settlement Agreement, against any of the released parties. Except as to any class members who have validly and timely requested exclusion, the action is dismissed with prejudice, 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 Aug. 28, 2018 Judgment is available at https://is.gd/NCP75f from Leagle.com. Sarita Agrawal, Ram Agrawal, Sheri Dodge & Neil Dodge, Plaintiffs, represented by Evan Christopher Borges -- eborges@ggtriallaw.com -- Greenberg Gross LLP & Daniel S. Robinson, Robinson Calcagnie Inc. PHH Corporation, a Maryland corporation, PHH Mortgage Corporation, a New Jersey corporation & PHH Broker Partner Corporation, a Maryland corporation, Defendants, represented by Mitchel Howard Kider -- kider@thewbkfirm.com -- Weiner Brodsky Kider PC, David M. Souders -- souders@thewbkfirm.com -- Weiner Brodsky Kider PC, pro hac vice, Joel Allen Schiffman -- schiffman@thewbkfirm.com -- Weiner Brodsky Kider PC & Michael Y. Kieval -- kieval@thewbkfirm.com -- Weiner Brodsky Kider PC, pro hac vice. Realogy Holdings Corp., a Delaware corporation, Realogy Group LLC, a Delaware limited liability company, Realogy Intermediate Holdings LLC, a Delaware limited liability company, Title Resource Group LLC, a Delaware limited liability company, West Coast Escrow Company, a California corporation, TRG Services Escrow, Inc., a Delaware corporation, NRT LLC, a Delaware corporation, Realogy Services Group LLC, a Delaware limited liability company & Realogy Services Venture Partner LLC, a Delaware limited liability company, Defendants, represented by Calvin L. Litsey -- calvin.litsey@FaegreBD.com -- Faegre Baker Daniels LLP & Wendy J. Wildung -- wendy.wildung@FaegreBD.com -- Faegre Baker Daniels LLP, pro hac vice. PHH Home Loans LLC, a Delaware limited liability company, RMR Financial, LLC, a California limited liability company & NE Moves Mortgage LLC, a Massachusetts limited liability company, Defendants, represented by David L. Permut -- dpermut@goodwinlaw.com -- Goodwin Procter LLP, pro hac vice, Steven A. Ellis -- sellis@goodwinlaw.com -- Goodwin Procter LLP, Thomas M. Hefferon -- thefferon@goodwinlaw.com -- Goodwin Procter LLP, pro hac vice & Todd A. Boock -- tboock@goodwinlaw.com -- Goodwin Procter LLP. Equity Title Company, a California corporation, Defendant, represented by Calvin L. Litsey, Faegre Baker Daniels LLP & Wendy J. Wildung, Faegre Baker Daniels LLP. POLLACK & ROSEN: Sproul Sues over Debt Collection Practices ----------------------------------------------------------- ALIVEINA SPROUL, individually and on behalf of all others similarly situated, Plaintiff v. POLLACK & ROSEN P.A., Defendants, Case No. 0:18-cv-62043-FAM (S.D. Fla., Aug. 28, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Pollack & Rosen, P.A. operates as a law firm. The Company serves clients in the areas of law such as liquidation of accounts receivables and collections for both consumer and business accounts, commercial and general litigation, and family law. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com POP WARNER: Continues to Defend Head Trauma Class Action -------------------------------------------------------- Doug Thompson, writing for Blue Ridge Muse, reports that as high school football seasons get underway in Southwestern Virginia, three high schools in Virginia entered this season with no football on their fields. Manassas Park and Park View -- suburban schools in Northern Virginia -- no longer have varsity football along with Charles City. In nearby North Carolina, Chapel Hill, dropped its football program as did Bedford, KY, and Bladensburg, MD. Several reasons account for the drop: Declining student enrollments, changing demographics, other sports alternatives and players choosing to specialize in just one sport, but a primary cause comes from the growing number of injuries suffered in the game, especially head trauma. An extensive study of brains of deceased National Football players found 87 percent of the brains suffered a degenerative brain disorder because of repetitive head trauma. The National Federation of State High School Associations says enrollment in football dropped by 20,000 students between 2016 and 2017 and enrollment in the last decade is down 6.6 percent nationwide. A study of student athletes by Boston University in 2017 found that kid who began playing tackle football at age 12 or younger had more behavioral and cognitive problems later in life. BU found those you participated in youth football before the age of 12 suffered a twofold "risk of problems with behavioral regulation, apathy and executive function and a threefold risk of "clinical elevated depression." Students at high schools and colleges have died on the field during practice sessions and in games. Jordan McNair, a student football athlete at the University of Maryland, died in June of this year after collapsing on the field. In 2015, seven high school football students died in football games or practice at American schools in just seven weeks. Wake Forest School of Medicine said magnetic resonance imaging technology found that boys between the ages of 8 and 23 for just one season suffered diminished brain functions. The Pop Warner youth football league is fighting a class-action lawsuit that claims the program knowingly put young players in danger by ignoring the risks of head trauma. Ivy League schools decided last year to eliminate tackling at practices during the regular season, as does the Canadian Football League. "The curiosity about head injuries and the correct age to play full contact is peaking," Terry O'Neill, founder of Practice Like the Pros, which recommends only flag football in the sixth grade and limited tackling in 7th and 8th grade games. "Tackling is the culprit," Mr. O'Neill adds. "Everybody associated with the game is worried about the numbers." The National Football League has been slow to react to studies in head trauma, even though studies show extreme trauma issue associated with both scholastic, collegiate and professional football. Increasingly, studies show, parents now think twice before letting their children participate in tackle football in middle schools or high schools. Bladensburg, MD, announced it won't be fielding a football team this year because of safety concerns. Other schools report they are withholding their children from participation because of the same concerns. [GN] PUCCI'S PIZZA: Sued over Website Discriminatory Conditions ---------------------------------------------------------- ANDRES GOMEZ, Individually, the Plaintiffs, v. PUCCI'S PIZZA LLC A Limited Liability Company, the Defendant, Case No. 1:18-cv-23744-CMA (S.D. Fla., Sept. 12, 2018), seeks injunctive relief and payment of attorney's fees, litigation expenses and costs pursuant to the Americans with Disabilities Act. According to the complaint, the Defendant has violated the ADA provisions either directly or through contractual, licensing or other arrangements with respect to Plaintiff and other similarly situated individuals on the basis of their disability: a. by depriving them of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of its place of public accommodation; b. by denying them the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations; c. in affording them the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals; d. by providing them a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others; e. by failing to afford them goods, services, facilities, privileges, advantages, and accommodations in the most integrated setting appropriate to the needs of the individual; f. notwithstanding the existence of separate or different programs or activities provided in accordance with this section, by denying them the opportunity to participate in such programs or activities that are not separate or different; g. by failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; and h. by failing to take steps as may be necessary to ensure that they are not excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. The Plaintiff has suffered, and continues to suffer, frustration and humiliation as the result of the discriminatory conditions present at the Defendant's website. By continuing to operate its website with discriminatory conditions, Defendant contributes to Plaintiff's sense of isolation and segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities, privileges and/or accommodations available to the general public. By encountering the discriminatory conditions at Defendant's website, and knowing that it would be a futile gesture to attempt to utilize the website unless he is willing to endure additional discrimination, Plaintiff is deprived of the meaningful choice of freely visiting and utilizing the same accommodations readily available to the general public and is deterred and discouraged from doing so. By maintaining a website with violations, Defendant deprives plaintiff the equality of opportunity offered to the general public. The Plaintiff has suffered and will continue to suffer direct and indirect injury as a result of the Defendant's discrimination until the Defendant is compelled to comply with the requirements of the ADA.[BN] The Plaintiff is represented by: Duane Crooks, Esq. THOMAS B. BACON, P.A. P.O. Box 450973 Sunrise, FL 33345 Telephone: (305) 761 2146 E-mail: crookslawfirm@gmail.com QUEST PHARMACEUTICALS: SSD Sues Over Unsolicited Fax Messages ------------------------------------------------------------- SSD LLC, a Mississippi limited liability company v. QUEST PHARMACEUTICALS, INC., a Kentucky corporation, Case No. 3:18-cv-00202-DMB-RP (N.D. Miss., September 19, 2018), alleges that the Defendant violated the Telephone Consumer Protection Act of 1991 by sending unsolicited facsimiles to the Plaintiff and similarly situated putative class members. Quest is a corporation organized and validly existing under the laws of Kentucky, and is located in Murray, Kentucky. Quest is a generic drug distributor selling products within Mississippi.[BN] The Plaintiff is represented by: L.N. Chandler Rogers, Esq. ROGERS LAW GROUP 201 E Bankhead Street New Albany, MS 38652 Telephone: (662) 538-5990 Facsimile: (662) 538-5997 E-mail: chandler@rogerslawgroup.com - and - Winston B. Collier, Esq. THE COLLIER FIRM 2090 Old Taylor Road Oxford, MS 38655 Telephone: (870) 347-2100 Facsimile: (870) 347-1164 E-mail: winston@thecollierfirm.com RALEYS: Faces Hughes Suit in Sacramento California -------------------------------------------------- An employment-related class action lawsuit has been filed against Raleys. The case is captioned as KAREN HUGHES, individually and on behalf of all others similarly situated, Plaintiff v. RALEYS, and DOES 1-50, Defendants, Case No. 34-2018-00239655-CU-OE-GDS (Cal. Super., Sacramento Cty., Aug. 28, 2018). Raley's operates a retail chain of supermarkets. The Company offers dry foods, fruits, vegetables, seafood, deli, bakery, meats, beverages, and pharmacy and health products. Raley's serves customers in the United States. [BN] The Plaintiff is represented by Larry W Lee, Esq. REAL VALUE: SSD Files TCPA Suit in Mississippi ----------------------------------------------- SSD, LLC, a Mississippi limited liability company v. REAL VALUE, INC., a Texas corporation, Case No. 3:18-cv-00201-MPM-JMV (N.D. Miss., September 19, 2018), is brought on behalf of the Plaintiff and all others similarly situated seeking damages and injunctive relief pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. Real Value is a public company that distributes prescription drugs throughout the U.S. in 47 states, including Mississippi. Real Value has its principal place of business in San Antonio, Texas, is organized under the laws of the state of Texas, and is a resident of the state of Texas.[BN] The Plaintiff is represented by: L.N. Chandler Rogers, Esq. ROGERS LAW GROUP 201 E Bankhead Street New Albany, MS 38652 Telephone: (662) 538-5990 Facsimile: (662) 538-5997 E-mail: chandler@rogerslawgroup.com - and - Winston B. Collier, Esq. THE COLLIER FIRM 2090 Old Taylor Road Oxford, MS 38655 Telephone: (870) 347-2100 Facsimile: (870) 347-1164 E-mail: winston@thecollierfirm.com REALPAGE INC: Faces FCRA Class Action Lawsuit --------------------------------------------- Jenie Mallari-Torres, writing for Penn Record, reports that tenants have filed a class action lawsuit against RealPage Inc., doing business as On-Site, a consumer reporting agency, alleging a violation of the Fair Credit Reporting Act. Patricia McIntyre filed a complaint on behalf of herself and all others similarly situated on Sept. 12, in the U.S. District Court for the Eastern District of Pennsylvania, against RealPage Inc., alleging that the consumer reporting agency breached its duty of good faith and fair dealings. The plaintiffs allege that she and other individuals seeking to lease a property have suffered injuries to their credit reputation, and were forced to live in expensive extended-stay housing, because of the inaccurate and outdated tenant screening report submitted by the defendant about plaintiff and the class. The plaintiffs hold RealPage Inc. responsible, because the defendant allegedly failed to follow procedures to assure the maximum possible accuracy of the information contained in the consumer report and failed to provide all of the information it maintains about consumers upon request. The plaintiffs request a trial by jury and seek judgment against defendant, certify class action, actual, statutory, and punitive damages, costs, attorney's fees, and further relief as may be just and proper. They are represented by James A. Francis, Esq. -- jfrancis@consumerlawfirm.com -- John Soumilas Esq. -- jsoumilas@consumerlawfirm.com -- and Lauren KW Brennan, Esq. -- lbrennan@consumerlawfirm.com -- of Francis & Mailman PC in Philadelphia. U.S. District Court for the Eastern District of Pennsylvania Case number 18-cv-03934[GN] RECOVERY CONNECTIONS: Presson Files FLSA Suit in North Carolina --------------------------------------------------------------- A class action lawsuit has been filed against Recovery Connections Community under the Fair Labor Standards Act. The case is styled as Andrew Presson, Kimberly Myris on behalf of themselves and all others similarly situated, Plaintiffs v. Recovery Connections Community, Journey to Recovery LLC, Jennifer A. Warren, Phillip J. Warren, 3M & N, Inc., Western North Carolina Lions, Inc., Integrity-Hominy Valley, LLC, Integrity-Candler 02, LLC, Integrity-Candler Living Center, LLC, Integrity-Candler 01, LLC, Integrity Senior Properties Investments, LLC, Cedarbrook Residential Center, Inc., The Autumn Group, Inc., Defendants, Case No. 5:18-cv-00466 (E.D. N.C., Sept. 27, 2018). The Defendants are assisted living facilities. Recovery Connections Community is a recovery support service provider that offers various levels of opportunity to persons with substance use disorders and process addictions. Journey To Recovery, LLC is a drug rehab facility in Lake Worth, Florida. [BN] The Plaintiffs appear pro se. RESEARCH TRIANGLE: Souders Files Suit for Invasion of Privacy ------------------------------------------------------------- KRISTYNA SOUDERS, individually and on behalf of all others similarly situated v. RESEARCH TRIANGLE INSTITUTE; and DOES 1 through 10, inclusive, Case No. 2:18-cv-08129-JFW-JEM (C.D. Cal., September 19, 2018), accuses the Defendants of negligently contacting the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, thereby causing her to incur unwanted and unnecessary charges and invading her privacy. Research Triangle Institute is a research company. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com RIPPLE LABS: General Counsel Quits Amid Class Actions ----------------------------------------------------- Nathan Rodriguez, writing for Chainbits, reports that in the latest cryptocurrency news, the general counsel of Ripple, Brynly Llyr, has decided to leave the blockchain payments startup. A spokesperson confirmed the news on Sept. 7, though her departure was already in the rumor mill. A 'Mutual Decision' Llyr first joined the firm in 2016 as a top legal officer. Since then, she has played a vital role for two and a half years. Although no reason was given for her untimely departure, a spokesperson of Ripple suggested that the stepping out was a "mutual decision" between her and the startup. The spokesperson was quoted saying, "We're grateful to all that she did to help build an incredible team that will continue the work they've been focused on for the past year and beyond." It further stated, "We wish Brynly all the best in her next endeavor and the team here at Ripple looks forward to the next chapter where we will continue to pave the way in this ever-evolving and unchartered industry." Before joining the blockchain payments company, Llyr was known for providing help to fintech companies. She also led litigation teams and partnered on matters that involve commercial deals (i.e. acquisitions and mergers) and intellectual property protection. PayPal and eBay were two of her biggest clients as stated in her company biography. Fighting Lawsuits Apparently, the news comes as Ripple continues to battle various class-action lawsuits. Most of these reportedly claim that the XRP token is merely a security distributed directly by the company. In previous reports, there were a number of investors suing the company, as they blame Ripple for dropping the price of the digital currency over the last year. As expected, Ripple tried to counter the claims and clarified the infamous issue. In order to defend the aforementioned claims, Ripple included some legal heavyweights to its side. One of these includes the titular Mary Jo White, who was the former SEC chair. Interestingly, the company managed to achieve triumph over a number of procedural victories, with one district court-level case said to be voluntarily dismissed. There were also two superior lower court-level cases being consolidated. The only catch, however, is that the company has yet to acquire either a hearing or trial on the underlying claims for any of the ongoing suits. It is interesting to see just how much impact these will bring to the startup. [GN] ROCKET PHARMACEUTICALS: Appeal in Whitehead Class Suit Ongoing -------------------------------------------------------------- Rocket Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2018, for the quarterly period ended June 30, 2018, that the appeal in the case entitled, Whitehead v. Inotek Pharmaceuticals Corporation, et al., is ongoing. On January 6, 2017, a purported stockholder of Inotek filed a putative class action in the U.S. District Court for the District of Massachusetts, captioned Whitehead v. Inotek Pharmaceuticals Corporation, et al., No. 1:17-cv-10025. An amended complaint was filed on July 10, 2017, and a second amended complaint was filed on September 5, 2017. The second amended complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 against the Company, David Southwell, and Rudolf Baumgartner based on allegedly false and misleading statements and omissions regarding Inotek's phase 2 and phase 3 clinical trials of trabodenoson. The lawsuit seeks, among other things, unspecified compensatory damages for purchasers of Inotek's common stock between July 23, 2015 and July 10, 2017, as well as interest and attorneys' fees and costs. The second amended complaint was dismissed with prejudice on June 27, 2018, and the plaintiffs filed a notice of appeal on July 27, 2018. Rocket Pharmaceuticals said, "The Company continues to vigorously defend itself against this claim." Rocket Pharmaceuticals, Inc., together with its subsidiaries, operates as a multi-platform biotechnology company that focuses on developing gene therapies for rare and devastating pediatric diseases. Rocket Pharmaceuticals, Inc. is headquartered in New York, New York. ROYAL SWEET: Hernandez Seeks Unpaid Minimum Wages under FLSA ------------------------------------------------------------ LUIS-RODRIGUEZ-HERNANDEZ, Individually and on behalf of others similarly situated, the Plaintiffs, v. MIKHAIL YUSIM Individually and ROYAL SWEET BAKERY, INC., the Defendants, Case No. 1:18-cv-05243 (E.D.N.Y., Sept. 18, 2018), seeks to recover unpaid minimum wages and related damages for unpaid overtime hours worked under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff and other FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants' decision, policy, plan and common policies, programs, practices, procedures, protocols, routines, and rules willfully failing and refusing to pay them one and one half times their regular rate for work in excess of 40 hours per workweek. Royal Sweet Bakery, Inc. was founded in 1997. The company's line of business includes the manufacturing of fresh or frozen bread and bread-type rolls, cakes, pies, and other perishable bakery products.[BN] Attorneys for Plaintiff and proposed FLSA collective Plaintiffs: Darren P.B. Rumack, Esq. THE KLEIN LAW GROUP 39 Broadway Suite 1530 New York, NY 10006 Telephone: (212) 344 9022 Facsimile: (212) 344 0301 RP AUTOMOTIVE: Cortez Seeks OT & Minimum Wage under Labor Code -------------------------------------------------------------- CARLOS CORTEZ, in a Representative Capacity, and on behalf of other members of the general public similarly situated, the Plaintiff, v. RP AUTOMOTIVE, INC., a California Corporation; and DOES 1-10, inclusive, the Defendant, Case No. 37-2018-00046786-CU-OE-CTL (Cal. Super. Ct., Sept. 11, 2018), seeks to recover overtime and minimum wage under the California Labor Code. The Defendant failed to pay the members of the Representative action all compensation due, including overtime compensation, in violation of, among other statutes, Labor Code sections 510 and 1197. This failure was caused by several separate uniform practices of RP. For example, RP employed a standard practice of failing to accurately record, and pay for, all time the employees spent under RP's control, and providing a simple "draw" for a bi-weekly pay-period, as well as inaccurately providing commission payments within a separate pay-period, wherein the "draw' was deducted from the employees' pay. As a second example, RP had several policies and practices which required employees to work in excess of 8 hours, without overtime compensation, where the employees had not yet sold an automobile. As a third example, Plaintiff would work -- and RP would acknowledge the work -- without receiving the proper Minimum Wage. As a specific example, for the "Pay Date" of 1/08/18, RP acknowledged that Plaintiff worked a total of "75.72" hours of "Regular" time (which Plaintiff is informed and believes means in excess of 75 hours) for the operative pay period. However, the Plaintiff received a total of only $771.16 for this pay period. Given the controlling Minimum Wage at this time, RP violated California's Minimum Wage laws by failing to provide the minimum amount owing. RP Automotive, Inc. was founded in 2008. The company's line of business includes general automotive repair.[BN] The Plaintiff is represented by: William B. Sullivan, Esq. Eric K. Yaeckel, Esq. Andrea J. Torres-Figueroa, Esq. 2330 Third Avenue San Diego, CA 92101 Telephone: (619) 702 6760 Facsimile: (619) 702 6761 E-mail: helen@sullivanlawgroupapc.com. yaeckel@sullivanlawgroupapc.com andrea@sullivanlawgroupapc.com SAFE STREETS: Can Compel Arbitration in Anderson FLSA Suit ---------------------------------------------------------- In the case, MARK ANDERSON, on behalf of himself and all others similarly situated, Plaintiffs, v. SAFE STREETS USA LLC and Does 1 through 100, inclusive, Defendants, Case No. 2:18-cv-00323-KJM (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California granted Safe Streets' motion to compel arbitration of most claims and stay all further proceedings. Anderson asserts began working for Safe Streets in October 2014. Safe Streets asserts it hired Anderson on Aug. 19, 2015, but he postponed his start date to Oct. 19, 2015. On his hiring date of Aug.19, 2015, he signed several documents on that date as part of the hiring process; his electronic signature appears on the documents next to a date and time stamp. One of these documents, titled "Retention Bonus," contained an "Agreement to Arbitrate." The arbitration clause is underlined and clearly visible on the first page of the Retention Bonus document. Anderson filed the putative class action against Safe Streets on Feb. 12, 2018. He alleged claims under the Fair Labor Standards Act, various sections of the California Labor Code, and the California Business & Professions Code. One of Anderson's California Labor Code claims is a Private Attorneys General Act ("PAGA") claim to recover civil penalties. On March 9, 2018, Safe Streets moved to compel arbitration, asserting Anderson signed a valid and enforceable arbitration agreement when he started with Safe Streets. Safe Streets contends all claims except for Anderson's PAGA claim fall under the "Covered Claims" section of the arbitration agreement. It asks the Court to stay all further proceedings, including Anderson's PAGA claim, until arbitration resolves his other claims. Anderson opposes Safe Streets' motion to compel arbitration for several reasons. First, he asserts he does not recall seeing or signing the Retention Bonus agreement. Second, he argues that even if the agreement is valid, it is unconscionable and may not be enforced. Third, he claims that the class action waiver clause in the agreement violates the National Labor Relations Act. Fourth, Anderson contends the arbitration agreement's statement that it will be governed by the FAA and the law of the State of North Carolina to the extent New Jersey law is not inconsistent with the FAA renders the entire agreement potentially unenforceable. Fifth, he argues the Court should not stay his PAGA claims even if other claims go to arbitration. Judge Mueller finds that Safe Streets has provided sufficient evidence to meet its burden to show Anderson signed the arbitration agreement. Because Anderson does not dispute that the agreement covers his claims, the Judge Anderson's argument that the agreement is unconscionable. She finds that the agreement's choice-of-law provision is not so ambiguous to preclude enforcement of the Retention Bonus agreement in full. Nor does she finds this provision overly harsh, "unduly oppressive, unreasonably favorable or that it shocks the conscience. Because she does not find the agreement substantively unconscionable on the grounds Anderson asserts and the degree of procedural unconscionability is low, the Judge finds the agreement enforceable. Anderson's PAGA claim is derivative of his substantive claims. His claims a status as an aggrieved employee that relies on the same injuries giving rise to his non-PAGA claims, such as his alleged lack of rest periods, paid earned wages owed, including proper overtime and double time pay, lack of reimbursement for work-related expenses, lack of provided signed commission statements, deductions from his wages and not being provided accurate wage statements as required by state law. The Judge therefore stays Anderson's PAGA claim until arbitration is completed. For the foregoing reasons, Judge Mueller granted Safe Streets' motion to compel arbitration and stayed all further proceedings until the parties notify the court that arbitration is complete. She ordered the parties to notify the Court within seven days and to submit a Joint Status Report within 30 days after arbitration is complete explaining the parties' positions on scheduling of the balance of the case. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/QQnoha from Leagle.com. Mark Anderson, Plaintiff, represented by Rachel Elizabeth Davey -- rachel@workmanlawpc.com -- Workman Law Firm PC & Robin G. Workman -- robin@workmanlawpc.com -- Workman Law Firm, PC. Safe Streets USA, LLC, Defendant, represented by Christina Theresa Tellado -- christina.tellado@hklaw.com -- Holland and Knight LLP, Deisy Castro -- Deisy.Castro@hklaw.com -- Reed Smith LLP & Thomas E. Hill, Reed Smith LLP. SAFRAN TURNEY: Faces Smith-Centz Suit Over Tip Sharing Policy ------------------------------------------------------------- SARAH SMITH-CENTZ, on behalf of herself and similarly situated employees v. SAFRAN TURNEY HOSPITALITY; RESTAURANT 13, INC.; GROCERY 13, INC.; LOCUST13, INC.; and LOLITA RESTAURANT, INC., Case No. 2:18-cv-04055-TJS (E.D. Pa., September 19, 2018), arises from the Defendants' alleged tip sharing policy that violated the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act of 1968 and the Philadelphia Gratuity Protection Bill. Safran Turney Hospitality is a business entity maintaining a principal place of business in Philadelphia, Pennsylvania. Safran is owned and operated by Valarie Safran and Marcie Turney. Restaurant 13, Inc., is a Pennsylvania corporation maintaining a principal place of business in Philadelphia. Restaurant 13 operates a restaurant called "Barbuzzo" located at 110 South 13th Street in Philadelphia. Restaurant 13 is a wholly owned subsidiary of Safran. Grocery 13, Inc., is a Pennsylvania corporation maintaining a principal place of business in Philadelphia. Grocery 13 operates a restaurant called "Jamonera" located at 101 South 13th Street in Philadelphia. Grocery 13 is a wholly owned subsidiary of Safran. Locust13, Inc., is a Pennsylvania corporation maintaining a principal place of business in Philadelphia. Locust13 operates two restaurants named "Little Nonna's" and "Bud & Marilyn's" that are both located at 1234 Locust Street in Philadelphia. Locust13 is a wholly owned subsidiary of Safran. Lolita Restaurant, Inc., is a Pennsylvania corporation maintaining a principal place of business in Philadelphia. Lolita Restaurant operates a restaurant called "Lolita" located at 106 South 13th Street in Philadelphia. Lolita Restaurant is a wholly owned subsidiary of Safran. The restaurants "Barbuzzo" "Jamonera" "Little Nonna's" "Bud & Marilyn's" and "Lolita" are each part of the "We Heart 13th Street" restaurant group and are owned, operated, and overseen by Safran Turney Hospitality.[BN] The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com asantillo@winebrakelaw.com mgottesfeld@winebrakelaw.com SAKS AND COMPANY: Rudolph Suit Moved to S.D. New York ----------------------------------------------------- The class action lawsuit titled Alexandria Rudolph, individually and on behalf of all others similarly situated, the Plaintiff, v. Saks and Company LLC, doing business as: Saks Off 5th, a Delaware limited liability company, the Defendant, Case No. 2:18-cv-05107, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the Southern District of New York (Foley Square) on Sep. 18, 2018. The New York Southern District Court Clerk assigned Case No. 1:18-cv-08472-PKC to the proceeding. The case is assigned to the Hon. Judge P. Kevin Castel. Saks & Company LLC owns and operates stores that sell apparel, shoes and bags for men and women.[BN] The Plaintiff is represented by: Benjamin Heikali, Esq. Joshua Nassir, Esq. FARUQI AND FARUQI LLP 10866 Wilshire Boulevard Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256 2884 Facsimile: (424) 256 2885 E-mail: bheikali@faruqilaw.com jnassir@faruqilaw.com The Defendant is represented by: Joseph Duffy, Esq. Nicolette Leilani Young, Esq. MORGAN LEWIS AND BOCKIUS LLP 300 South Grand Avenue 22nd Floor Los Angeles, CA 90071 Telephone: (213) 612 2500 Facsimile: (213) 612 2501 E-mail: joseph.duffy@morganlewis.com nicolette.young@morganlewis.com SCRIPPS HEALTH: Underpays Supply Technicians, Angcaya Suit Says --------------------------------------------------------------- PAUL ANGCAYA, individually and on behalf of all others similarly situated, Plaintiff v. SCRIPPS HEALTH; and DOES 1 through 50, inclusive, Defendants, Case No. 37-2018-00042688-CU-OE-CTL (Cal. Super., San Diego 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. Mr. Angcaya was employed by the Defendants as supply technician from May 4, 2015 to December 6, 2017. Scripps Health operates as a non-profit, community-based health care network. The Hospital provides audiology, behavioral health, cardiology, cosmetic surgery, critical care, elbow surgery, foot care, hand therapy, heart failure treatment, x-rays, and other medical services. Scripps serves the patients and communities of San Diego, California. [BN] The Plaintiff is represented by: Alexander I. Dychter, Esq. S. Adam Spiewak, Esq. DYCHTER LAW OFFICES, APC 1010 Second Ave., Suite 1835 San Diego, CA 92101 Telephone: (619) 487-0777 Facsimile: (619) 330-1827 E-mail: alex@dychterlaw.com adam@dychterlaw.com SENTRY CREDIT: Certification of Class Sought in Bencomo Suit ------------------------------------------------------------ Modesta Luna Bencomo moves the Court to certify the class described in the complaint of the lawsuit styled MODESTA LUNA BENCOMO, Individually and on Behalf of All Others Similarly Situated v. SENTRY CREDIT INC., Case No. 2:18-cv-01475 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com SERVICE EMPLOYEES: Conn. Gov't Workers Sue Over Coercive Unionism ----------------------------------------------------------------- Bill McMorris, writing for The Washington Free Beacon, reports that government workers in Connecticut have filed a class-action suit to recover their wages in the wake of the Supreme Court's ruling against coercive unionism. Employees with the Connecticut Department of Energy and Environmental Protection are suing the state chapter of Service Employees International Union, Local 2001, to win back dues and agency fees the state required them to pay as a condition of employment. The suit comes just months after the Supreme Court declared forced-dues schemes in the public sector an unconstitutional violation of the First Amendment. It alleges the department and union have made no effort to reimburse workers for mandatory payments. "Local 2001 and the State Defendants acting under color of state law to force employees to join a union or pay a fee as a condition of continued employment have violated Plaintiffs' rights," the suit says. "Defendants, acting in concert with one another, have deprived, and continue to deprive, Plaintiffs and class members' of their constitutional rights." In June, the Supreme Court ruled in Janus v. American Federation of State, County, and Municipal Employees that government agencies could no longer require workers to pay union fees or dues as a condition of employment, overturning the long-standing precedent set forth in Abood v. Detroit Board of Education (1977). The ruling has caused panic in the labor movement as the four largest public-sector unions, including SEIU, face the loss of 400,000 agency fee payers who provide partial dues meant to cover the cost of representational activities, such as collective bargaining and grievance proceedings, while withholding financial support for political activities and lobbying. The loss of those partial payments could cost labor organizations hundreds of millions of dollars. SEIU Local 2001 represents about 21,000 workers and collects more than $6 million in revenue each year charging dues that range between $300 and $884 per year, according to its 2017 federal labor filings. The union had only 682 agency fee payers that year. The department ceased automatic deductions for dissenters in July following the Janus ruling, but the union continues to demand payments from them, according to the suit. The workers, who are represented by the National Right to Work Legal Defense Foundation—the same lawyers who argued Janus before the Supreme Court—argue that deductions should have ceased years earlier since the Supreme Court questioned the constitutionality of compulsory union fees in the 2012 Knox case. The suit also seeks a pledge from the union that it will not seek to include mandatory payments in future contract negotiations with the state. "Local 2001 has been on notice since at least the Supreme Court's decision in Knox in 2012 that agency fees violated the First and Fourteenth Amendment as the Court explained in Janus," the suit says. It further asks the Court to expressly prohibit "the State Defendants from requiring, requesting, collecting, receiving, or in any other way possessing or obtaining union fees from Plaintiffs and the class at all." The union vowed to fight the suit, calling it "malevolently motivated" and "completely without merit." Local 2001 said it abided by all relevant federal laws in collecting dues and that it was within its right to accept agency fees after the Supreme Court affirmed mandatory payments in the Abood case. Union executive director David Glidden said it has complied fully with the new Janus standard. "The lawsuit, in addition to being malevolently motivated, is completely without merit, and we shall vigorously defend against it. CSEA has complied fully with the Janus decision since it was issued," he said in a statement. "Prior to that, we collected fair share fees in accordance with 35 years of Supreme Court precedent for the purposes of negotiating and administering contracts, and therefore we are confident that we will prevail in this matter." A department spokesman referred the Washington Free Beacon to a spokesman for Democratic governor Dannel Malloy. The governor's office did not respond to requests for comment. [GN] SHIMADZU PRECISION: Gunn Seeks Unpaid Wages under Labor Code ------------------------------------------------------------ GEORGE GUNN, individually and on behalf of all others similarly situated, the Plaintiff, v. SHIMADZU PRECISION INSTRUMENTS, INC., a California corporation; and DOES 1 through 50, inclusive, the Defendant, Case No. BC719424 (Cal. Super. Ct., Aug. 31, 2018), alleges failed to pay minimum wages and overtime wages under the California Labor Code. According to the complaint, the Defendants have policies and practices of not paying Plaintiff and class members all wages earned and due, through methods and schemes which include, but are not limited to, failing to provide meal periods; failing to authorize and permit rest breaks; failing to pay minimum and overtime wages; failing to provide accurate itemized statements; failing to maintain required records; and failing to compensate Plaintiff and class members for necessary expenditures, in violation of the California Labor Code and the applicable Industrial Welfare Commission Wage Order. Shimadzu Precision assembles, repairs, and supplies OEM aircraft equipment spare parts, components, and assemblies to commercial airlines. The company also offers repair/overhaul and non-destructive testing services for aircraft equipment.[BN] Attorneys for George Gunn, individually and on behalf of all others similarly situated: Matthew J. Matern, Esq. Launa Adolph, Esq. Deanna S. Leifer, Esq. MATERN LAW GROUP 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Telephone: (310) 531 1900 Facsimile: (310) 531 1901 SIGNATURE CLEANING: Sanchez Seeks Unpaid Wages under FLSA --------------------------------------------------------- RODNEY J. SANCHEZ, on behalf of himself, FLSA Collective Plaintiff and the Class, the Plaintiff, vs SIGNATURE CLEANING SERVICES, INC., and ANDREW WEISBACH, the Defendants, Case No. 1:18-cv-08483 (S.D.N.Y., Sept. 18, 2018), seeks to recover unpaid wages, including unpaid overtime, due to time-shaving, unpaid wages, statutory penalties, liquidated damages and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff and other FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants' decision, policy, plan and common policies, programs, practices, procedures, protocols, routines, and rules willfully failing and refusing to pay them one and one half times their regular rate for work in excess of 40 hours per workweek. Defendants operate a commercial cleaning company, offering cleaning and maintenance services to different businesses, under the tradename "Signature Cleaning Services Inc."[BN] Attorneys for Plaintiff, FLSA Collective Plaintiffs and the Class: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465 1188 Facsimile: (212) 465 1181 SILVER TREE: Fails to Pay Proper Overtime Pay, Fefel Suit Says -------------------------------------------------------------- LORRAINE FEFEL, individually and on behalf of all others similarly situated Plaintiff v. SILVER TREE RESIDENTIAL, LLC, and TICE VIEIRA, Defendants, Case No. 0:18-cv-62065-BB (S.D. Fla., Aug. 31, 2018) is an action against the Defendants for failure to pay the Plaintiff and overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Fefel was employed by the Defendants as non-exempt, hourly employee. is the sole management company for the communities owned by Mr. Mr. Carmichael as well as those owned by Housing Preservation, Inc. The Company offers property management service for senior and family apartment homes. [BN] The Plaintiff is represented by: Jordan Richards, Esq. JORDAN RICHARDS, PLLC 401 East Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Telephone: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com Livia@jordanrichardspllc.com Jake@jordanrichardspllc.com Melissa@jordanrichardspllc.com SINGAPORE: Veteran Diplomat Calls for Class Action v. Sec. 377 -------------------------------------------------------------- YAHOO! News reports that India's Supreme Court recently partially struck down Section 377 of the Penal Code, a colonial-era law that criminalised gay sex. The five-judge bench held that Section 377 is irrational, indefensible and manifestly arbitrary, and hence, unconstitutional. Soon after that landmark ruling, a prominent veteran Singapore diplomat, Tommy Koh, called on the LGBT community in Singapore to "bring a class action to challenge the constitutionality of Section 377A", which is the particular section of the Singapore law outlawing sex acts between men. This prompted a response from Minister for Law and Home Affairs, K Shanmugam, who said it was a matter for Parliament to decide. He added that in policies such as these, public opinion is often relevant. [GN] SIRIUS XM RADIO: Alvarez Sues over Radio Lifetime Subscriptions --------------------------------------------------------------- PHILIPP ALVAREZ, individually and on behalf of all others similarly situated, Plaintiff v. SIRIUS XM RADIO, INC., Defendants, Case No. BC719411 (Cal. Super., Los Angeles Cty., Aug. 28, 2018) seeks declaratory and injunctive relief from the Defendant to honor its lifetime subscriptions without encumbrances. According to the complaint, the Defendant owns various digital radio stations that transmit programming via satellite. In an effort to gain subscribers and substantially increase revenue -- especially at the outset of its operations -- the Defendant offered and sold lifetime subscriptions to consumers. Purchasers of the lifetime subscriptions took a chance and paid large upfront lifetime subscription fees to the Defendant with no guarantee that the Defendant would survive as an ongoing business, but in the hope that if the Defendant did survive, their lifetime subscription purchases would pay off over time. The Defendant is now failing to honor the lifetime subscriptions it sold to consumers, thereby harming those consumers who purchased the lifetime subscriptions. Sirius XM Radio Inc. provides radio broadcasting services in the United States and Canada. The company was incorporated in 1990 and is based in New York, New York. Sirius XM Radio Inc. operates as a subsidiary of Sirius XM Holdings Inc. [BN] The Plaintiff is represented by: Tina Wolfson, Esq. Bradley K. King, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles. CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 E-mail: twolfson@ahaootwolfson.com bking@ahdootwolfson.com SLIDE FIRE: Court Dismisses Festival Shooting Negligence Suit -------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order granting Defendant's Motion to Dismiss the case captioned DEVON PRESCOTT, individually and on behalf of all those similarly situated, et al., Plaintiffs, v. SLIDE FIRE SOLUTIONS, LP, Defendant. Case No. 2:18-cv-00296-GMN-GWF. (D. Nev.). This case arises from the tragic mass shooting that occurred at the Route 91 Harvest Music Festival (Festival), in Las Vegas, Nevada. Plaintiffs were attendees of the Festival on that evening when Stephen Paddock (Paddock) opened fire on the concert goers from the thirty-second floor of his hotel room at the Mandalay Bay. Slide Fire is the designer, manufacturer, marketer, and seller of bump stocks, and holds itself out as the sole patent holder of bump fire technology. The Plaintiffs filed their class action bringing the following causes of action against Slide Fire: (1) negligence (2) negligent infliction of emotional distress under a theory of bystander liability (3) negligent infliction of emotional distress under a theory of direct liability (4) negligent products liability (5) strict products liability and (6) public nuisance. Here, Slide Fire is a limited partnership with its principal place of business in Texas, and each partner of Slide Fire is a Texas citizen. Plaintiffs' argument is premised upon Slide Fire's marketing, soliciting, and/or otherwise advertising its products for sale in Nevada, as well as Slide Fire's online activity, from which it has generated millions of dollars in revenue from its sales of bump stocks with Nevadans, and Paddock in particular, contributing a portion of that financial support. These asserted contacts, however, are insufficient to establish that Slide Fire is essentially at home in Nevada. It is axiomatic that a business' advertising and sales directed towards consumers in a given forum cannot alone support general jurisdiction. Moreover, operation of an interactive website even a highly interactive website does not confer general jurisdiction. The Court, accordingly, finds these alleged contacts do not support general jurisdiction over Slide Fire. The Plaintiffs' allegations concerning the nature of Slide Fire's website suggests that it falls somewhere in the middle of the sliding scale, albeit towards the interactive side. Plaintiffs allege Slide Fire's website sells, markets, solicits, or otherwise advertises its products for sale to Nevada residents, and contains a locate a dealer function which enables Nevadans to identify local retailers who sell Slide Fire's products. These assertions indicate that Slide Fire's website is commercial in nature but perhaps falls short of continuously and deliberately exploit[ing]' the Nevada market. The Court need not determine whether this, standing alone, is sufficient because Slide Fire's other asserted contacts with Nevada in conjunction with its website establish purposeful availment. The Plaintiffs also point to Slide Fire's attendance and participation at two firearm trade shows in Las Vegas where it promoted, marketed, and sold its bump fire products to vendors, buyers and resellers in Nevada. The Ninth Circuit has held, that a non-resident defendant's act of soliciting business in the forum state will generally be considered purposeful availment if that solicitation results in contract negotiations or the transaction of business. Relatedness of Contacts with the Forum Slide Fire argues that its attendance at the trade shows cannot establish relatedness because there is no allegation that Mr. Paddock attended this trade show, or that any of Slide Fire's products allegedly used during the incident were sold at the show. Therefore, according to Slide Fire, Plaintiffs cannot establish that its claims arise out of Slide Fire's contacts with Nevada. The Court disagrees. Plaintiffs' allegations in support of its six causes of action are not as narrow as Slide Fire suggests. The first three claims incorporate allegations that Slide fire failed to adequately and properly market, sell, advertise, and promote the bump stock as a device to help individuals with limited mobility and negligently marketed, promoted, and sold the bumps stocks as an inexpensive device to circumvent federal law. The fourth cause of action contains allegations that Slide Fire failed to exercise the proper standard of care in its manufacture, design, sales, and distribution to ensure it was safe for its intended and reasonably foreseeable use. The fifth cause of action provides that Slide Fire knew and/or should have known that by marketing, promoting, distributing, selling and/or advertising its defense product as one to circumvent federal law, it was foreseeable that individuals use such a device not for its intended purpose. The sixth cause of action states that Slide Fire's negligent, reckless, or intentional manufacture, sale, or marketing ensured a steady flow of dangerous products in large quantities to persons with criminal purposes. In summary, at the root of each cause of action is the manner in which Slide Fire manufactured, promoted, distributed, or advertised its bump stocks, and the way in which the same created a foreseeable risk of the October 1 shooting. Because Plaintiffs assert that Slide Fire marketed, promoted, distributed, or sold bump stocks at the trade shows in Las Vegas, through its online sales, and marketing directed at Nevadans, it follows that Slide Fire's contacts with Nevada are causally related to Plaintiffs' claims. The Complaint further ties Slide Fire's promotional activities to Paddock with the allegation that Slide Fire designed, manufactured, marketed, distributed, and/or sold one or more of the bump stocks used by Paddock during the subject incident and that Slide Fire holds itself out as the sole patent holder of bump fire technology. Drawing all reasonable inferences in favor of Plaintiffs, the Court finds that Slide Fire's connections to Nevada are causally related to Plaintiffs' causes of action. Reasonableness Slide Fire fails to advance any argument on this prong of the personal jurisdiction analysis. Even if Slide Fire were to dispute this point, the Court would nonetheless find that jurisdiction is reasonable given Plaintiffs' and Nevada's robust interests in adjudicating the instant case in this forum. Moreover, Plaintiffs' uncontroverted allegation that Slide Fire recently attended trade shows in Las Vegas indicates that travel itself is not unduly burdensome. Therefore, the Court concludes that its exercise of jurisdiction over Slide Fire is reasonable. In light of the foregoing, the Court finds that it has personal jurisdiction over Slide Fire. Accordingly, Slide Fire's Motion to Dismiss, to the extent it is premised upon personal jurisdiction, is denied. Next, the Court turns to Slide Fire's argument that the Protection of Lawful Commerce in Arms Act (PLCAA) requires dismissal of Plaintiffs' Complaint. Protection of Lawful Commerce in Arms Act Congress enacted the PLCAA upon finding that manufacturers and sellers of firearms are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products that function as designed and intended. Whether Bump Stocks are Qualified Products under the PLCAA The PLCAA defines a qualified product as a firearm or a component part of a firearm or ammunition. Here, the word component is defined as a constituent part and constituent means an essential part or serving to form, compose, or make up a unit or whole. Part means one of the often indefinite or unequal subdivisions into which something is or is regarded as divided and which together constitute the whole or an essential portion or integral element. An accessory, in contrast, is a thing of secondary or subordinate importance or an object or device that is not essential in itself but adding to the beauty, convenience, or effectiveness of something else. Slide Fire argues that bump stocks are component parts of firearms because they are a type of rifle stock and rifle stocks are necessary for a rifle to be fired from the shoulder. In support, Slide Fire cites to a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Guidebook (ATF Guidebook) which identifies a stock as a component part of a rifle; a June 10, 2010 letter from the ATF to Slide Fire classifying the bump stock as a firearm part (ATF Letter); and case law in which courts label stocks as component parts of firearms. Plaintiffs counter that bump stocks are accessories rather than component parts because they are added after a consumer purchases a fully functional rifle, require post-purchase installation, and are advertised as a way to enhance or overhaul a rifle in Slide Fire's promotional catalog (Slide Fire Catalog). Plaintiffs also cite to cases in which courts have held that devices such as cable locks, sights, and compensators are accessories rather than component parts of firearms, as well as federal tax regulations that Plaintiffs suggest define accessories to encompass bump stocks. The Court finds that bump stocks are component parts of firearms and are, accordingly, qualified products under the PLCAA. The PLCAA's Predicate Exception Plaintiffs assert that the PLCAA's third exception, Section 7903(5)(A)(iii), applies to the instant suit. Under that exception, the PLCAA does not pre-empt. an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought. Here, Plaintiffs argue in favor of two predicate statutory violations: (1) Slide Fire's alleged false entry on its application for a federal firearms license (FFL); and (2) Slide Fire's misrepresentations to the ATF about bump stocks being intended for persons with limited mobility. Plaintiffs have not come forward with any authority suggesting that a device's utility to those with disabilities impacts whether that device constitutes a firearm or firearm part. Significantly, if a device's marketability to those with disabilities was not a factor in the ATF's finding, then it follows that Plaintiffs cannot show that Slide Fire's misrepresentation proximately caused the injuries that are the subject of this case. Therefore, at this juncture, the Court is not satisfied that Slide Fire's alleged misrepresentation to the ATF gives rise to a predicate statutory violation under the PLCAA. Plaintiffs have failed to demonstrate that the PLCAA does not shield Slide Fire from liability. Moreover, Plaintiffs have not pointed to a statutory violation that would permit the Court to find that an exception to the PLCAA applies. The Court, therefore, grants Slide Fire's Motion to Dismiss without prejudice. A full-text copy of the District Court's September 17, 2018 Order is available at https://tinyurl.com/y9wfwczl from Leagle.com. Devon Prescott, Brooke Freeman & Tasaneeporn Upright, Plaintiffs, represented by Aaron D. Ford , Eglet Prince, Erica D. Entsminger , Eglet Prince, Jonathan Lowy , pro hac vice, Robert M. Adams , Eglet Prince & Robert T. Eglet , Eglet Prince. Slide Fire Solutions, LP, Defendant, represented by Danny C. Lallis -- dlallis@pmlegalfirm.com -- Pisciotti Malsch, F. Thomas Edwards -- tedwards@nevadafirm.com -- Holley Driggs Walch Fine Wray Puzey & Thompson, James D. Boyle -- jboyle@nevadafirm.com -- Holley Driggs Walch Fine Wray Puzey & Thompson & Jeffrey Martin Malsch -- jmalsch@pmlegalfirm.com -- Pisciotti Malsch PC, pro hac vice. SNAP INC: Still Faces Securities Class Action over March 2017 IPO ----------------------------------------------------------------- Snap Inc. continues to defend itself against securities class actions related to its March 2017 initial public offering, 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, "In March 2017, we completed our initial public offering ("IPO") in which we issued and sold 160.3 million shares of Class A common stock, inclusive of the over-allotment, at an initial public offering price of US$17.00 per share and excluding shares sold in the IPO by certain of our existing stockholders. "Beginning in May 2017, we, certain of our officers and directors, and the underwriters for our IPO were named as defendants in securities class actions purportedly brought on behalf of purchasers of our Class A common stock, alleging violation of securities laws in connection with our IPO. "Management believes these lawsuits are without merit and intend to vigorously defend them. Based on the preliminary nature of the proceedings in this case, the outcome of this matter remains uncertain." Snap Inc. operates as a camera company in the United States and internationally. The Company was formerly known as Snapchat, Inc. and changed its name to Snap Inc. in September 2016. Snap Inc. was founded in 2010 and is headquartered in Venice, California. SONY MUSIC: Court Partly Affirms Strike Order in Serova Suit ------------------------------------------------------------ In the case, VERA SEROVA, Plaintiff and Respondent, v. SONY MUSIC ENTERTAINMENT et al., Defendants and Appellants, Case No. B280526 (Cal. App.), Judge Elwood Lui of the Court of Appeals of California for the Second District, Division Two, affirmed in part and reversed in part the superior court's order partially denying their motion to strike under the anti-SLAPP statute. The Defendants and Appellants Sony, John Branca, as co-executor of the estate of Michael J. Jackson, and MJJ Productions, Inc., appeal from an order of the superior court partially denying their motion to strike under the anti-SLAPP statute. Plaintiff and Respondent Serova filed the putative class action against the Appellants and other Defendants for marketing a posthumous Michael Jackson album entitled simply Michael. Serova claims that the album cover and a promotional video misleadingly represented that Jackson was the lead singer on each of the 10 vocal tracks on the album, when in fact he was not the lead singer on three of those tracks. Serova alleged claims under the Unfair Competition Law ("UCL") and the Consumers Legal Remedies Act ("CLRA"). She also brought a fraud claim against Defendants Edward Joseph Cascio, James Victor Porte, and Cascio's production company, Angelikson Productions, LLC ("Cascio Defendants"), alleging that those Defendants knowingly misrepresented to the Appellants that Jackson was the lead singer on the three tracks at issue. Then Appellants brought an anti-SLAPP motion, which the trial court granted in part but denied with respect to the two communications at issue in this appeal. The trial court concluded that the album cover, including statements about the contents of the album, and a promotional video for the album were commercial speech that was subject to regulation under the UCL and the CLRA. Judge Lui reversed this portion of the trial court's order. He concludes that the challenged representation -- that Michael Jackson was the lead singer on the three Disputed Tracks -- did not simply promote sale of the album, but also stated a position on a disputed issue of public interest. Before the album was released, certain Jackson family members and others publicly claimed that Jackson was not the lead singer on the Disputed Tracks. The Appellants disputed this claim. An attorney acting for the Estate released a public statement outlining the steps the Appellants had taken to verify the authenticity of the tracks by consulting with experts and persons who were familiar with Jackson's voice and recordings. Thus, the identity of the artist on the three Disputed Tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy. The identity of the lead singer was also integral to the artistic significance of the songs themselves. Under these circumstances, the Appellants' statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection. They are therefore outside the scope of an actionable unfair competition or consumer protection claim in the case. As a matter of law, Serova therefore cannot show a likelihood that she will prevail on her claims under prong two of the anti-SLAPP procedure, and her claims against the Appellants must be stricken. The Judge therefore needs not reach the issue of whether the challenged statements would be misleading to a reasonable consumer. The Judge emphasized that this holding is based on the record in the case and the issues that have been appealed. The Cascio Defendants have not appealed, and his holding therefore does not reach any portion of the trial court's order with respect to them. Nor does he purport to decide whether statements in another context concerning the marketing of creative works might constitute commercial speech. For these reasons, Judge Lui affirmed in part and reversed in part trial court's order. The portions of the Complaint alleging claims against the Appellants are stricken. In all other respects the trial court's order is affirmed. The Appellants are entitled to their costs on appeal. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/Lz96od from Leagle.com. Katten Muchin Rosenman, Zia F. Modabber -- zia.modabber@kattenlaw.com -- Andrew J. Demko , Charlotte S. Wasserstein --charlotte.wasserstein@kattenlaw.com; Kinsella Weitzman Iser Kump & Aldisert, Howard Weitzman -- hweitzman@kwikalaw.com -- and Suann C. Macisaac -- smacisaac@kwikalaw.com -- for Defendants and Appellants. Moss Bollinger, Ari E. Moss and Jeremy F. Bollinger for Plaintiff and Respondent. SOUTHERN ILLINOIS UNIVERSITY: Judge Denies Ex-Doctor Class-Action ----------------------------------------------------------------- Dean Olsen, writing for Herald & Review, reports that a federal judge has turned down "class-action" status for a lawsuit filed in 2015 by a female surgeon alleging systemic wage discrimination against female doctors at Springfield's Southern Illinois University School of Medicine. But the case, initiated by former SIU surgeon Dr. Sajida Ahad and joined by four other female doctors since then, will proceed after the ruling by U.S. District Judge Sue Myerscough, according to one of Ahad's attorneys, J. Bryan Wood, Esq. -- bryan@jbryanwoodlaw.com "It essentially means Dr. Ahad can't pursue her claims on behalf of other people," Wood said. "They need to pursue their claims on their own." Though SIU officials have denied Ahad's original allegation of wage discrimination, they didn't respond to The State Journal-Register's request for comment on Myerscough's Sept. 12 ruling. In the ruling, Myerscough said Ahad failed to show there was a "common cause" to produce a "common answer to the questions of whether and why compensation for female physicians was lower than compensation for similarly situated male physicians." Myerscough wrote that Ahad acknowledges the medical school's compensation plan doesn't explicitly discriminate against women. Myerscough said Ahad contends the manner in which the compensation plan is carried out -- by the medical school's dean and other doctors on a compensation committee -- "resulted in gender discrimination in the form of lower pay." But the judge said Ahad, 43, didn't meet the legal threshold to justify allowing Ahad to represent a female group of current and former SIU faculty doctors that could number as many as 165 people employed at the medical school since 2010. Ahad was employed by SIU and treated patients through SIU Medicine, a multispecialty group practice of doctors, from 2008 through 2014. Compared with a conventional lawsuit, a class-action lawsuit could have put SIU at risk of paying a larger amount of damages -- potentially millions of dollars through a settlement or a favorable ruling after a bench trial or jury trial. Wood, who is based in Chicago and working with lawyer Michael Brown, Esq. -- mbrown@dvglawpartner.com -- of Appleton, Wisconsin, to represent Ahad, said Myerscough's ruling was disappointing. But Wood said "it has not weakened our or Dr. Ahad's resolve to pursue her systemic wage discrimination claim." Ahad's lawyers have argued that SIU female physicians were being paid more than $12,200 per year less than male doctors for similar work. Joining Ahad in the case -- separate from the proposed class-action proceeding -- are two former SIU doctors, Christina Vassileva, a heart surgeon, and Erica Rotondo, a family physician, as well as two current SIU doctors, Jan Rakinic, a colorectal surgeon, and Janet Bauer, a surgeon and ear, nose and throat specialist. Bauer, who joined the faculty in 1995 as an assistant professor, is chairwoman of SIU's division of otolaryngology. She is the most recently added plaintiff in the lawsuit, joining in August. A July news release from SIU said Bauer was selected as the 2018-19 president of the American Otological Society. Ahad spoke with the SJ-R about the lawsuit last year, but Vassileva, Rotondo, Rakinic and Bauer all have declined interview requests, according to Wood. There has been no negotiations with SIU about settling the lawsuit, Wood said. A trial in the case isn't expected to take place this year, he said. SIU is fighting a 2016 order by an administrative judge from the U.S. Department of Labor who ruled SIU must pay Ahad $223,884, plus interest, for underpaying her in comparison with her mostly male counterparts at SIU. Ahad, a bariatric surgeon, received a base salary of $125,000 from the medical school and $110,903 from SIU Medicine in fiscal 2013, according to court documents. The Department of Labor administrative judge, whose ruling was affirmed by an administrative review board earlier this year, said SIU made errors in applying federal wage requirements covering workers from other countries for part of the time she was at SIU. Ahad, a Pakistani national now working for the University of Iowa health system, has permanent resident status in the United States. SIU filed a lawsuit against the Department of Labor in U.S. District Court in July to overturn the ruling. In court documents that are part of the case, which remains pending, SIU's attorneys in St. Louis say the ruling was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, contrary to the university's constitutional rights, without observance of procedure required by law, and unsupported by substantial evidence."[GN] SPRINT/UNITED: Fails to Pay Proper Wages, Burgains Suit Alleges --------------------------------------------------------------- BARRY BURGAINS, individually and on behalf of all others similarly situated, Plaintiff v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant, Case No. 77131943 (Fla. Cir., Miami-Dade Cty., Aug. 28, 2018) seeks to recover from the Defendant unpaid overtime compensation, prejudgment interest, maximum liquidated damages, reasonable attorneys' fees, and costs. The Plaintiff Burgains was employed by the Defendant as non-exempt employees. Sprint/United Management Company, Inc. is based in Overland Park, Kansas. Sprint/United Management Company, Inc. operates as a subsidiary of Sprint Nextel Corp. [BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com STERLITE OF OHIO: Ohio App. Reverses Dismissal of Lunsford Suit --------------------------------------------------------------- In the case, DONNA L. LUNSFORD, ET AL., Plaintiffs-Appellants, v. STERILITE OF OHIO, LLC, ET AL., Defendants-Appellees, Case No. 2017CA00232 (Ohio App.), Judge Criag R. Baldwin of the Court of Appeals of Ohio for the Fifth District, Stark County, (i) reversed the trial court's dismissal of the Appellants' complaint for failure to state a claim for which relief may be granted, (ii) vacated the judgment, and (iii) remanded the matter remanded to the trial court for further proceedings consistent with his Opinion. The appeal arises from the trial court's dismissal of the Appellants' complaint after finding that the complaint failed to state a claim for which relief may be granted. Appellants Adam Keim and Laura Williamson were employees of Appellee Sterilite of Ohio, LLC; and Appellants Lunsford and Peter D. Griffiths are still so employed. Appellee Sterilite of Ohio, LLC is a limited liability company located at 4495 Sterilite Avenue, S.E., in Massillon, Ohio. Its Parent Company, Appellee Sterilite, LLC, is a limited liability company that is the parent company of the Appellee Sterilite. Defendant U.S. Healthworks Medical Group of Ohio, Inc. is a corporation located at 2626 Fulton Drive, N.W., Canton, Ohio. Appellee Sterilite adopted a Substance Abuse Policy, a copy of which was attached to the complaint. The Policy warned of testing for reasonable suspicion that an employee may be impaired by the use of drugs or alcohol in violation of the policy, and that the company would conduct random testing at periodic intervals to maintain safety and productivity. The Policy explained that Sterilite would use a urinalysis method to test for the use of illegal drugs or the improper use of prescription or over-the-counter drugs. The Appellants were notified by Sterilite to appear at a specified location within the Sterilite plant to submit to a urinalysis. Lunsford, Williamson and Griffiths were subject to a random screening. Keim was tested under the reasonable suspicion clause of the policy and while he objected to the assertion that there was reasonable suspicion, he complied with the directive of Sterilite as did all Appellants. Sterilite used what the Appellants describe as a direct observation method of collecting the urine specimen for the test. Each employee was accompanied by an individual of the same sex to a restroom facility designated by Sterilite for the exclusive purpose of collecting urine samples pursuant to the Policy. While in the restroom, the person accompanying the Appellant was obligated to visually observe the Appellants genitals and the production of the urine sample. The U.S. Healthworks completed the collection in this manner at the direction of Sterilite. The direct observation procedure was disclosed to the Appellants only immediately prior to conducting the test. Direct observation was not described in the Substance Abuse Policy maintained by Sterilite. The Appellants signed a consent and release form shortly prior to the administration of the test, but the form did not reference direct observation. Sterilite began using the direct observation method in October 2016 and it was used for all analyses without any requirement that the employee had engaged in any behavior that might alter the outcome of the urinalysis. All the Appellants were subject to the direct observation method of collection. Sterilite terminated Keim's and Williamson's employment because they failed to produce a urine specimen within two and one half hours, despite their good faith effort to comply with the request. Lunsford and Griffiths were able to supply a sample, but Lunsford was particularly uncomfortable because it forced her to reveal genital scarring she suffered from a surgical procedure. Lunsford and Griffiths are still employed by Sterilite. The Appellants filed a complaint on Dec. 22, 2016 alleging Invasion of Privacy, Wrongful Discharge in Violation of Public Policy, Failure to Remit Minimum Wages, Failure to Remit Wages, Breach of Contract and seeking Declaratory Judgment, Injunctive Relief, and Certification as a Class. The Appellees filed a motion to dismiss the complaint for failure to state a claim for which relief may be granted pursuant to Civ.R. 12(b)(6) and Appellants opposed the motion. The trial court granted the motion on May 9, 2017 with regard to Count One, Invasion of Privacy; Two, Wrongful Discharge in Violation of Public Policy; Three, Declaratory Judgment regarding the Direct Observation Method; Four, Injunctive Relief regarding the Direct Observation Method, and Five, Class Action for Declaratory and Injunctive Relief. On June 13, 2017, Appellant Williamson dismissed her claims in counts Six through Eight without prejudice. On Nov. 27, 2017, after several pleadings involving an attempt to file an amended complaint and other unrelated matters, the Appellants dismissed counts Six through Eight and thereafter, on Nov. 30, 2017, the trial court entered an order noting that no claims remain pending and the order of May 9, 2017 was now a final appealable order. The Appellants filed a notice of appeal on Dec. 26, 2017 and submitted assignments of error. The Appellants submitted four assignments of error, but the common element and lynchpin of all the assignments is the determination of whether the Appellants have stated a claim for invasion of the right of privacy. Their case will survive or fail based upon the resolution of that issue alone. The first assignment of error addresses that question and the remaining assignments assume that the first assignment is decided in the Appellants' favor. If the first assignment of error is rejected, the remaining assignments are rendered moot. However, if the first assignment of error is approved, the case must be remanded to the trial court to fully address the issues described within the remaining assignments. Judge Baldwin finds that the Appellants have stated a valid claim for invasion of privacy pursuant to the requirement of the Supreme Court of Ohio in Housh v. Peth. He cannot agree that there is no set of facts upon which the Appellants may recover. Both the Appellees and the trial court rely upon case law that does not foreclose the possibility that the method of collection of a urine sample could comprise a violation of the Appellants' right to privacy. He concludes that the Appellants have stated a valid claim and that dismissal for failure to state a claim was not supported by a review of the pleadings and the attachments. Because the remaining assignments of error have at their foundation the claims of invasion of privacy, because the complaint was dismissed for failure to state a claim of invasion of privacy and because he finds that decision in error, consideration of the remaining assignments of error at this junction would be premature. For the forgoing reasons, Judge Baldwin reversed the decision of the Stark County Court of Common Pleas, vacated the judgment, and remanded the matter remanded to the trial court for further proceedings consistent with his Opinion. A full-text copy of the Court's April 24, 2018 Opinion is available at https://is.gd/sl8NFi from Leagle.com. S. DAVID WORHATCH, Law Offices of S. David Worhatch, 4920 Darrow Road, Stow, Ohio 44224-1406, Akron, Ohio 44308, for Plaintiffs-Appellants. JOHN N. CHILDS -- jnchilds@bmdllc.com -- DANIEL J. RUDARY -- djrudary@bmdllc.com -- Brennan, Manna & Diamond, LLC, 75 East Market Street, for Defendants-Appellees. SUNOPTA INC: Accrues $5.0MM for De Jesus Settlement at June 30 -------------------------------------------------------------- SunOpta 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 Company has accrued US$5.0 million at June 30, 2018 in connection with the settlement of the case, De Jesus, et al. v. Frozsun, Inc. d/b/a Frozsun Foods. On April 19, 2013, a class-action complaint, in the case titled De Jesus, et al. v. Frozsun, Inc. d/b/a Frozsun Foods, was filed against Sunrise Growers, Inc. ("Sunrise") (then named Frozsun, Inc.) in California Superior Court, Santa Barbara County seeking damages, equitable relief and reasonable attorneys' fees for alleged wage and hour violations. This case includes claims for failure to pay all hours worked, failure to pay overtime wages, meal and rest period violations, waiting-time penalties, improper wage statements and unfair business practices. The putative class includes 10,611 non-exempt hourly employees from Sunrise's production facilities in Santa Maria and Oxnard, California. The parties attended mediation on October 12, 2017, and reached a general agreement to resolve the matter on a class-wide basis for US$5.0 million. After negotiating the remaining details of the settlement, the parties obtained preliminary approval of the class action settlement on May 14, 2018. Settlement class members had until August 20, 2018, to opt out or object to the settlement terms. A final fairness hearing was scheduled with the Court on September 17, 2018. No further updates were provided in the Company's SEC report. The Company said, "If the settlement is granted final approval at or near the date of the final fairness hearing, funding of the settlement is anticipated to occur before the end of the year. The Company expects to recover the full amount payable under the settlement through insurance coverage and an escrow account established in connection with the Company's acquisition of Sunrise." As at June 30, 2018, the Company had accrued US$5.0 million in connection with this settlement, which is recorded in accounts payable and accrued liabilities on the consolidated balance sheet, and recorded a receivable in the same amount for the anticipated full recovery, which is reflected in accounts receivable on the consolidated balance sheet. SunOpta Inc. is a global company focused on sourcing organic and non-genetically modified ("non-GMO") ingredients, and manufacturing healthy food and beverage products. The company is based in Ontario, Canada. SUPERCLEAN BRANDS: Web Site Not Deaf-friendly, Sullivan Suit Says ------------------------------------------------------------------ PHILLIP SULLIVAN, JR., on behalf of himself and all others similarly situated v. SUPERCLEAN BRANDS, LLC, Case No. 1:18-cv-08570 (S.D.N.Y., September 19, 2018), seeks to put an end to alleged systemic civil rights violations committed by the Defendant against deaf and hard-of-hearing individuals in New York State and across the United States. The Defendant denies deaf and hard-of-hearing individuals throughout the United States equal access to the goods and services that it provides to non-disabled individuals, through https://www.superclean.com/, notes the complaint. Superclean Brands is an American for-profit corporation organized under the laws of the state of Minnesota and has a principal executive office located in Eagan, Minnesota. The Company operates the Web site, which provides information regarding its line of SuperClean cleaning products, including how to use the products and where to purchase them.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com anne@leelitigation.com TASTE OF NATURE: Settles Class Action Over Candy Packaging ---------------------------------------------------------- Scott Johnson, writing for News4JAX, reports that the company Taste of Nature Inc. has settled a class action suit over the sale of many lines of candy. The basis of the lawsuit was that Taste of Nature Inc. unlawfully sold packages of candy with too much empty space inside. The 16 candy brands are below: -- Cookie Dough Bites -- Chocolate Chip Cookie Dough Bites -- Fudge Brownie Cookie Dough Bites -- Santa's Village Chocolate Chip Cookie Dough Bites -- Cookies N' Cream Cookie Dough Bites -- Cinnamon Bun Bites -- Red Velvet Cupcake Bites -- Moon Pie Bites -- Strawberry Dream Bites -- Birthday Cake Cookie Dough Bites -- Peanut Butter Cookie Dough Bites -- Muddy Bears -- Shari Candies Cherry Sour Balls -- Despicable Me 2 Sour Gummies -- Sqwigglies -- Hello Kitty Treats The class action lawsuit was filed in May of 2018. The woman who filed it, Dacia Trentham, accused Taste of Nature Inc. of packaging its candies in cardboard that you couldn't see inside with too much empty space. Despite the legal loss, Taste of Nature Inc. maintains it did nothing wrong. The company claims its packaging was legal, but the two sides have agreed to settle the lawsuit so there will not be any further litigation. People who could get any settlement in the lawsuit would have to have proof they purchased any of the listed products between Jan. 1, 2013 and June 18, 2018. The products must have been purchased in the U.S. as well. Payouts would be minimal: a maximum $12.50 per household. [GN] TD AMERITRADE: Judge Certifies Equity Trades Class Action --------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge agreed to certify a class accusing TD Ameritrade of routing retail equity trades to venues that pay it the most money, without regard to best execution for customers. TELECLARO LLC: Pineda Seeks Injunction Over TCPA Violations ----------------------------------------------------------- CESAR PINEDA, individually and on behalf of a class of others similarly situated v. TELECLARO, LLC, Case No. 1:18-cv-23854-JEM (S.D. Fla., September 19, 2018), seeks permanent injunction prohibiting the Defendant from violating the Telephone Consumer Protection Act in the future through calling cell phones registered with the national do-not-call registry. Teleclaro, LLC, is in the business of selling international telephonic services. The Company sells telephonic "minutes" at a rate typically cheaper than that charged by major telephonic carriers.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com TELLIGEN: Faces Class Action Over Employee-Purchase Deal -------------------------------------------------------- Clark Kauffman, writing for Des Moines Register, reports that in January 2014, the West Des Moines healthcare company Telligen posted a message to Facebook celebrating its new employee stock ownership plan. "It's official! Telligen is now an ESOP company. We are excited about increasing employee participation in corporate ownership and look forward to all 2014 has to bring!" It wasn't long, however, before questions arose. The company's workers paid $37.5 million for Telligen's 1 million shares -- a price of about $37.50 per share. But just a few weeks later, those shares were valued at just $6.25. Were the workers overcharged? That's the question posed by a class-action lawsuit now working its way through the federal court system. Lawyers for the Telligen employees say the workers were "ripped off" and lost millions of dollars when they purchased the company. The lawsuit coincides with a wave of enforcement actions by the U.S. Department of Labor aimed at trusts that specialize in ESOPs, or employee stock ownership plans. Federal officials say too many companies are being sold to rank-and-file workers at inflated prices that make corporate officers rich at the expense of their own employees. Because ESOPs are often promoted as a valuable source of retirement savings, one that's corrupted by an inflated sale price can have a devastating effect on workers' financial health. In the past few years, the Department of Labor has filed lawsuits challenging transactions involving ESOPs at several companies. In each case, the employees bought shares of their company at inflated prices and were subsequently saddled with crushing debt loads. "Accurate company valuations are critical when it comes to establishing an employee stock ownership plan," said Jonathan Kay, a Department of Labor administrator. "Too often, company owners seek to inflate the price to benefit themselves at the expense of workers." The Telligen lawsuits pit the company's ESOP against Bankers Trust Co. of South Dakota, which acted as the trustee for the ESOP and helped structure the deal that turned Telligen into an employee-owned corporation. As trustee, Bankers Trust represented the employees' interests. After allegedly consulting with an independent appraiser, the bank valued the 1 million shares of Telligen at $37.50 each, then arranged for the plan to borrow the full $37.5 million from Telligen, payable over 20 years at 6 percent annual interest. But according to court records, shares of Telligen were valued at just $6.25 a few weeks after the deal was executed. The lawsuit alleges that Telligen's principal shareholders "profited by saddling the plan and Telligen employees with millions of dollars in debt." The lone named plaintiff in the lawsuit, Deb Innis, is a communications expert who worked for Telligen for 18 years. She is suing Banker's Trust on behalf of herself and other employees who bought into the plan. Lawyers for the bank and the ESOP declined to comment but outlined their opposing views in a court hearing last year. At that hearing, an attorney for Bankers Trust stated that the value of the employees' shares increased from $6.25 to almost $26 in the two years after the sale. In response, plaintiffs' attorney Ryan Jenny said that the increased value was irrelevant to the question of whether the initial purchase price was inflated, noting that any added value would only compound the losses sustained by employees. "It doesn't matter whether there was, you know, a rise in stock value down the road," he argued. "The question is, 'Did the plan pay too much on Dec. 31, 2013?' . . . Every (employee) will get fewer shares of stock if the plan was ripped off in the first instance." Mr. Jenny pointed out that the bank was engaged to handle the sale of Telligen in November 2013 and completed the sale at the end of December 2013. "It took me longer to negotiate the sale of my house than it took the trustee here to negotiate the sale of a $37.5 million company," Mr. Jenny told the court. "We see again and again in the ESOP industry that these trustees are rubber-stamping these transactions. "That's what we're alleging happened here, and we have another recent case -- against this same defendant -- where we got a $19.8 million settlement." The settlement Jenny referred to is tied to a pair of lawsuits filed by the U.S. Department of Labor and the employees of Mona Vie, a multi-level marketing company that sold fruit and vegetable juice concentrates. In that case, Mona Vie's owners sold $186 million worth of shares to its workers so they could assume ownership of the company. But the employees would later sue Bankers Trust, alleging the per-share price they paid was "grossly inflated." Four years after the ESOP was executed, the workers' shares were almost worthless, while their debt, with interest, totaled $250 million. The case was ultimately settled for $19.8 million -- far less than the $180 million the plaintiffs felt they could have collected but which would have put Bankers Trust at risk of going under. As part of the settlement, Bankers Trust agreed to get out of the ESOP business, but by that time, it had already cut the deal involving the Telligen sale. While the Telligen workers are suing Bankers Trust to recover their alleged losses, there's another twist to the case: Because of an indemnification clause in the 2013 ESOP agreement, Telligen itself, now owned by the workers, is contractually obligated to pay for the defense of Bankers Trust in the lawsuit brought by those same workers. Citing the potential for exactly this sort of conflict, some courts have declared these indemnification clauses illegal, and earlier this year the Department of Labor voided those clauses in two cases, citing a federal law that labels them bad public policy. Telligen was launched in 1972 as a nonprofit corporation called the Iowa Foundation for Medicaid Care. In 2011, it changed its name, and two years later, with 525 workers on its payroll, it became an employee-owned corporation. Telligen is now under contract with the federal government to improve the quality of medical care for Medicare beneficiaries in Iowa, Illinois and Colorado. Company officials declined to comment on the ESOP's litigation with Bankers Trust. Other ESOP lawsuits Among the recent lawsuits that alleged over-billing of employee stock ownership plans: * In May, the Department of Labor settled a case involving Sonnax Industries, a Vermont auto parts supplier. In 2011, the company sponsored an employee stock ownership plan. The ESOP's fiduciaries hired First Bankers Trust Services to advise the workers on the company's purchase price, but behind the scenes, the fiduciaries allegedly arranged for the workers to overpay for the company. Ultimately, the two fiduciaries agreed to pay $2 million to the ESOP and the Department of Labor, while First Bankers Trust Services agreed to pay $250,000. * In July, the Department of Labor entered into a $5.4 million settlement with the fiduciaries of Cactus Feeders Inc., a Texas-based feed company. The Lubbock National Bank allegedly had relied on a deficient valuation of the company, which resulted in the employees being overcharged for their shares. * In August, the Department of Labor settled a case against the owner of a Manhattan laser surgery center for $5 million. Dr. Roy Geronemus, owner of the Laser and Skin Surgery Center of New York, had hired his own accountant to serve as the trustee of the employee stock ownership plan. The accountant came up with a value for the company that didn't factor in corporate debt and as a result, the workers paid too much for the company. [GN] TETRAPHASE PHARMA: Rosen Law Firm Files Class Action ---------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Tetraphase Pharmaceuticals, Inc. (NASDAQ:TTPH) pursuant and/or traceable to Tetraphase's allegedly false and/or misleading registration statement and prospectus issued in connection with its July 2017 secondary public offering ("SPO" or the "Offering"); and/or from March 8, 2017 through February 13, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Tetraphase investors under the federal securities laws. To join the Tetraphase class action, go to https://www.rosenlegal.com/cases-830.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants during the Class Period made materially false and/or misleading statements and/or failed to disclose that: (1) Tetraphase was increasing the patient enrollment in its IGNITE3 trial from 1,000 patients to 1,200 patients to meet the trial's primary endpoints (within the 10% non-inferiority margin); (2) the enrollment of more patients in the trial indicated that the existing population was inadequate to meet the trial's primary endpoints; and (3) as a result, defendants' statements about Tetraphase's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 25, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-830.html to join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen—firm. View source version on businesswire.com:https://www.businesswire.com/news/home/20180920005709/en/ Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34thFloor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] TIBANA FINISHING: 2 Settlement Classes Certified in Vazquez Case ---------------------------------------------------------------- In the lawsuit entitled SALOME VAZQUEZ, on behalf of herself, individually, and on behalf of all others similarly situated, the Plaintiff, v. TIBANA FINISHING, INC., and TIBERJE MIKSA, individually, and ANA MIKSA, individually, the Defendants, Case No. 17-cv-1907 (E.D.N.Y.), the Hon. Judge Peggy Kuo entered an order: 1. certifying these classes for settlement purposes only, defined as: New York Class: "all individuals who worked as sewing and/or stitching machine operators for Defendants at anytime between April 4, 2011 through the date of entry of the Preliminary Approval Order, and who may be owed unpaid minimum wage and overtime compensation and statutory damages; and Federal Class: "all individuals who worked as sewing and/or stitching machine operators for Defendants at any time between April 4, 2014 through the date of entry of the Preliminary Approval Order, and who may be owed unpaid minimum wage and overtime compensation and statutory damages"; 2. appointing Arden Claims Service, LLC, as Class Administrator to be responsible for communicating with Class Members, disseminating the Notice and Claim Forms, accepting and maintaining documents sent by Class Members, including Claim Forms, Opt-out statements and other documents relating to claims administration, and administering claims for allocation, according to the formula set forth in the Settlement Agreement; 3. by no later than Sep. 27, 2018, directing Defendants to furnish Arden, in electronic form, with a list of all Class Members, identified by: (i) name; (ii) last known address; (iii) Social Security or Tax Identification Numbers (if available to Defendants); and (iv) dates of employment during the period of April 4, 2011 to present; and to Class September 27, 2018; and 4. directing Class Counsel to file their Motion for Judgment and Final Approval on or before Nov. 20, 2018, no later than 15 days before the Fairness Hearing.[CC] TIGER NATURAL: Fishman Seeks to Certify Customer Class, Sub-Class ----------------------------------------------------------------- Emily Fishman and Susan Faria, Plaintiffs in the lawsuit captioned EMILY FISHMAN, et al. v. TIGER NATURAL GAS INC., et al., Case No. 3:17-cv-05351-WHA (N.D. Cal.), move the Court for an order certifying these proposed Class and Sub-Class: * Tiger/PG&E Customer Class: All California consumers and businesses that were customers of Pacific Gas & Electric Company at the time they enrolled in Tiger Natural Gas, Inc.'s ("Tiger") capped rate price protection program (the "Program") after receiving a telemarketing Sales Call advertising the Program, at any time from August 18, 2013 to the present. * Tiger/PG&E Consumer Sub-Class: All California consumers, but not businesses, that were customers of Pacific Gas & Electric Company at the time they enrolled in Tiger Natural Gas, Inc.'s ("Tiger") capped rate price protection program (the "Program") after receiving a telemarketing Sales Call advertising the Program, at any time from August 18, 2013 to the present. The lawsuit -- a putative class action involving California consumers and businesses -- involves alleged fraudulent telemarketing calls that telemarketers working for Defendant Community Gas Center Inc. ("CGC") and other telemarketing companies headed by CGC's Chief Executive Officer, Defendant John Dyet, made to solicit customers for Defendant Tiger Natural Gas Inc.'s ("Tiger") capped-rate "price protection" program ("the "Program"). The Plaintiffs' claims include violations of California's Recording Law for recording Sales Calls without the called party's consent, breach of oral contract, violations of the Pacific Gas & Electric Company ("PG&E") Gas Rule 23 tariff, breach of third-party beneficiary contract (the Core Gas Aggregation Services ("CGAS") Agreement between Tiger and PG&E, incorporating Gas Rule 23), fraud, negligent misrepresentation, violations of the Consumers Legal Remedies Act, violations of Regulations on Core Transport Agents, violations of the False Advertising Law, and violations of the Unfair Competition Law. The claims are all based on Tiger's false claims about pricing in the natural gas market, the Program's alleged protection against the non-existent PG&E gas supply price increases, and the real costs of Tiger's supposedly "free" Program. The Plaintiffs also ask the Court to appoint them as class representatives, and to appoint Daniel Balsam, Esq., Jacob Harker, Esq., and the law firm of Kralowec Law, P.C., as Class Counsel. The Court will commence a hearing on November 8, 2018, at 8:00 a.m., to consider the Motion.[CC] The Plaintiffs are represented by: Kimberly A. Kralowec, Esq. Kathleen Styles Rogers, Esq. KRALOWEC LAW P.C. 44 Montgomery Street, Suite 1210 San Francisco, CA 94104 Telephone: (415) 546-6800 Facsimile: (415) 546-6801 E-mail: kkralowec@kraloweclaw.com krogers@kraloweclaw.com - and - Daniel L. Balsam, Esq. THE LAW OFFICES OF DANIEL BALSAM 2601C Blanding Avenue #271 Alameda, CA 94501 Telephone: (415) 869-2873 Facsimile: (415) 869-2873 E-mail: legal@danbalsam.com - and - Jacob Harker, Esq. LAW OFFICES OF JACOB HARKER 582 Market Street, Suite 1007 San Francisco, CA 94104 Telephone: (415) 624-7602 Facsimile: (415) 684-7757 E-mail: jacob@harkercounsel.com TIVITY HEALTH: Has Made Unsolicited Calls, Jeffrey Katz Alleges --------------------------------------------------------------- JEFFREY KATZ CHIROPRACTIC, INC., individually and on behalf of all others similarly situated, Plaintiff v. TIVITY HEALTH SUPPORT, LLC, Defendant, Case No. 3:18-cv-05400 (N.D. Cal., Sept. 1, 2018) seeks to stop the Defendants' practice of making unsolicited calls. Tivity Health Support, LLC provides prevention health care programs. The company was founded in 2004 and is based in Tempe, Arizona. Tivity Health Support, LLC operates as a subsidiary of Tivity Health Services, LLC. [BN] The Plaintiff is represented by: Jon B. Fougner, Esq. Edward A. Broderick, Esq. Anthony I. Paronich BRODERICK & PARONICH, P.C. 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 738-7080 Facsimile: (617) 830-0327 E-mail: Jon@FougnerLaw.com ted@broderick-law.com anthony@broderick-law.com - and - Matthew P. McCue, Esq. THE LAW OFFICE OF MATTHEW P. McCUE 1 South Avenue, Suite 3 Natick, MA 01760 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 E-mail: mmccue@massattorneys.net - and - Andrew W. Heidarpour, Esq. HEIDARPOUR LAW FIRM, PLLC 1300 Pennsylvania Ave. NW, 190-318 Washington, DC 20004 Telephone: (202) 234-2727 E-mail: AHeidarpour@HLFirm.com TOLTECA ENTERPRISES: Hackler Sues over Debt Collection Practices ---------------------------------------------------------------- SADIE HACKLER, individually and on behalf of all others similarly situated, Plaintiff v. TOLTECA ENTERPRISES, INC. d/b/a PHOENIX RECOVERY GROUP, Defendant, Case No. 5:18-cv-00911 (W.D. Tex., Aug. 31, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Tolteca Enterprises, Inc. d/b/a The Phoenix Recovery Group (PRG) is a Texas-based collection agency that provides professional Accounts Receivable Management services in the U.S., Canada, Puerto Rico, and Mexico. [BN] The Plaintiff is represented by: William M. Clanton, Esq. LAW OFFICE OF BILL CLANTON, P.C. 926 Chulie San Antonio, TX 78216 Telephone: (210) 226 0800 Facsimile: (210) 338 8660 E-mail: bill@clantonlawoffice.com - and - Benjamin R. Bingham, Esq. BINGHAM & LEA, P.C. 319 Maverick Street San Antonio, TX 78212 Telephone: (210) 224-1819 Facsimile: (210) 224-0141 E-mail: ben@binghamandlea.com UBER TECHNOLOGIES: Former Engineer Supports Pay Equity Settlement ----------------------------------------------------------------- Bloomberg reports that the former Uber Technologies Inc. engineer whose blog post on the treatment of women at the ride-hailing company helped drive out its chief executive said she supports a US$10 million settlement of pay equity and harassment claims filed on behalf of almost 500 employees. Susan Fowler, whose February 2017 post led to internal investigations and ultimately the departure of Travis Kalanick, said in a court filing on Sept. 7 that the settlement will help compensate others subject to "illegal conduct" and puts in place a monitoring program "to ensure there is follow-through concerning Uber's commitment to a new direction." "Fowler hopes for the best for Uber's talented and committed workforce, and particularly the women and persons of colour who continue to work at Uber and make it a better place," her lawyer wrote in the filing in federal court in Oakland, California. Fowler, who was named a 2017 "Person of the Year" by Time magazine for breaking the silence on harassment, tweeted this year with Uber CEO Dara Khosrowshahi seeking to end a company policy of forcing female riders to go through arbitration when they complain of assault by their drivers. In May, the company announced it would allow sexual assault and harassment victims to sue in court. Uber, which denies wrongdoing as part of the settlement, has said the accord is fair and reasonable. Jahan Sagafi, a lawyer for the women who sued, said Fowler's statement is consistent with other positive feedback his firm has received about "the substantial payments and strong policy changes made possible by the settlement." Fowler said she continues to face harassment on line and via email for speaking out in her post titled "Reflecting On One Very, Very Strange Year At Uber." She commended the two "brave women" who initiated the class-action suit last year. She also said that under a May US Supreme Court ruling that bolsters the power of employers to force workers to use individual arbitration instead of class-action lawsuits, women and minorities "would receive nothing at all" if not for the settlement. The settlement will provide an average of US$11,000 for 487 women and minority workers for alleged pay disparities, plus an additional US$34,000, on average, for 56 women who filed detailed claims of harassment, according to an August court filing. A hearing on final approval of the settlement is set for Nov 6. The case is Del Toro Lopez v. Uber Technologies Inc., 4:17-cv-06255, US District Court, Northern District of California (Oakland). [GN] UBER TECHNOLOGIES: Judge Rejects Lfyt Drivers Spying Class Action ----------------------------------------------------------------- Helen Christoph, writing for Courthouse News Service, reported that a federal judge indicated on Sept. 20 she would toss a California man's proposed class action accusing Uber of spying on Lyft drivers to lure them away from its competition. It would be the third time U.S. Magistrate Judge Jacqueline Scott Corley in San Francisco dismissed the lawsuit, this time for failing to satisfy pleading requirements under the federal Stored Communications Act. "What you're arguing for is a pretty broad expansion of the SCA," Judge Corley told plaintiff's counsel Caleb Marker -- caleb.marker@zimmreed.com -- in an afternoon hearing, using an acronym for the statute governing data stored by third-party internet service providers. Michael Gonzalez, a former San Francisco Bay Area Lyft driver, sued Uber in April 2017 after reading an article about the company's alleged spying activity in tech-news publication The Information. According to the article, Uber created fake Lyft rider accounts and used spyware called Hell to intercept the information Lyft sent those accounts, allowing Uber to access a driver's Lyft identification number and to track the driver's location over time. Uber then combined Lyft's data with its own driver-location data to determine which Lyft drivers also worked for Uber. Their names went on lists distributed to Uber's city managers, who targeted them for bonuses and steered more ride requests to them so they would devote more work-time to Uber. Judge Corley was interested in one key question on Sept. 20 -- had Mr. Gonzalez pleaded Uber gained unauthorized access of communications stored by Lyft for backup protection, as required by the Stored Communications Act? The judge said although Gonzalez's claims that Lyft stored the communications were plausible, he had not convinced her it had done so for backup purposes. Mr. Marker, who is with Zimmerman Reed, countered Lyft's privacy policy states the company stores communications for multiple purposes, including complying with government investigation requests. But Judge Corley said both Ninth Circuit case law and the statute itself require two copies of the data: the underlying data and the backup. "I see where the underlying data is; it's at Lyft. Where's the backup?" she said. Mr. Marker had no answer. But he explained that technology companies like Lyft invariably back up their data to comply with government investigations. Pushing for dismissal, Uber attorney Kevin Underhill -- kunderhill@shb.com -- of Shook, Hardy & Bacon pointed out that despite Mr. Gonzalez's claims Lyft sends a copy of the data to riders, riders can't save the data, precluding the creation of a backed-up version. "You're certainly right there is no backup," Mr. Underhill told Judge Corley. Judge Corley nonetheless suggested she may allow Mr. Gonzalez to amend his Stored Communications Act claim to strengthen his allegations. Mr. Marker, however, said there was nothing more to add without discovery. He argued the claim was sufficient, because the alleged copies of the data are actually backups. "Why not consider copies a backup," he said, adding that "almost any piece of data . . . is being backed up." Judge Corley appeared unconvinced. "The Justice Department would be interested in this argument," she quipped. UBS AG: Class Cert Denied in Suit Over Puerto Rico Govt Bonds ------------------------------------------------------------- The United States District Court for the Southern District of New York issued a Opinion denying Plaintiffs' Motion for Class Certification in the case captioned NORA FERNANDEZ; AUGUSTO SCHREINER; EDDIE TORO VELEZ; VICTOR R. VELA DIEZ DE ANDINO; JUAN VIERA; GEORGINA VELEZ MONTES; and ESTHER SANTANA, on behalf of themselves and all others similarly situated, Plaintiffs, v. UBS AG; UBS FINANCIAL SERVICES, INC.; UBS FINANCIAL SERVICES INCORPORATED OF PUERTO RICO; UBS TRUST COMPANY OF PUERTO RICO; UBS BANK USA; CARLOS V. UBIÑAS; MIGUEL A. FERRER; BANCO POPULAR de PUERTO RICO; and POPULAR SECURITIES, LLC, Defendants. No. 15-CV-2859 (SHS). (S.D.N.Y.). This breach of contract action concerns investments that the plaintiffs made in one or more of twenty closed-end mutual funds (CEFs), each of which contained a high percentage of Puerto Rico government bonds. The Plaintiffs are current or former clients of defendant UBS Financial Services Incorporated of Puerto Rico. The contract at issue is the client agreement (Client Agreement) between the plaintiffs and the defendant subsidiaries of the Swiss global financial services company UBS (UBS). The Plaintiffs contend that UBS breached their broker-dealer Client Agreement by failing to perform suitability analyses in connection with the plaintiffs' investments in the Funds. Before the Court is the plaintiffs' motion to certify the following class: All persons who had client agreements with UBS Financial Services Incorporated of Puerto Rico (UBS) requiring UBS to conduct suitability analyses and who purchased shares of one or more of the Twenty CEFs1 between May 5, 2008 and May 5, 2014 (the Class Period). Commonality: Rule 23(a)(2) Rule 23(a)'s commonality prerequisite is satisfied if there is a common issue that drives the resolution of the litigation' such that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Plaintiffs suggest several questions which they contend are common to the proposed class. Those questions can be summarized as: (1) What were UBS's duties to members of the proposed class pursuant to the suitability provision in the Client Agreement, (2) did UBS breach its duties pursuant to that provision, and (3) what are the proposed class members' damages. The Plaintiffs contend and UBS does not dispute that the suitability provisions in the proposed class members' Client Agreements were identical in all material respects. But the parties differ with respect to how those provisions should be interpreted and, specifically, whether and to what extent they are informed by FINRA's Suitability Rule and related guidance. UBS's refusal to concede the point is entirely perfunctory, but it nonetheless preserves a concrete dispute that can be resolved across the proposed class as a whole. By contrast, the plaintiffs' second and third proposed questions relating to whether UBS breached its duties to the class members and what damages they suffered are not capable of classwide resolution, at least by any of the methods suggested by plaintiffs. Because the question regarding UBS's duties to the proposed class members pursuant to the Client Agreement is common to the class, the Court finds that the proposed class meets the commonality requirement of Rule 23(a)(2). Typicality: Rule 23(a)(3) To establish typicality under Rule 23(a)(3), the party seeking certification must show that each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability. Here, each proposed class member's claim arises from a course of events that is unique to that class member. Put another way, the manner in which UBS allegedly failed to perform a suitability analysis before recommending a Fund to a proposed class member is different for each class member. The Plaintiffs' arguments to the contrary are the same as their arguments for why UBS's breach of its contractual suitability obligations to the proposed class members can be established through generalized evidence. The Court finds that UBS's alleged breach is not susceptible to generalized proof. Accordingly, the Court finds that the typicality requirement is not satisfied. Adequacy: Rule 23(a)(4) Adequacy entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation. With respect to the first element, the focus is on uncovering conflicts of interest between named parties and the class they seek to represent. In order to defeat a motion for certification, however, the conflict `must be fundamental. UBS challenges the first element only, and it does so on the basis of its contention that the named plaintiffs suffered no damages. However, the Court is not persuaded that, at least on the facts of this case, such a conflict is so fundamental as to contravene the adequacy requirement of Rule 23, and UBS has cited no contrary authority. Because UBS has identified no fundamental conflict of interest between the named plaintiffs and the proposed class, and because the Court is not aware of any such conflict, the Court finds that the adequacy requirement is satisfied. Predominance: Rule 23(b)(3) Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. None of the plaintiffs' attempts to avoid these individual inquiries are ultimately successful. According to plaintiffs, generalized proof will establish that: (1) the Funds were unsuitable per se and therefore UBS necessarily did not undertake any meaningful suitability analyses, (2) UBS in fact undertook no client-focused suitability analyses with respect to proposed class members' investments in the Funds, and (3) every decision by a class member to purchase or hold an investment in a Fund during the Class Period was pursuant to a recommendation by UBS. This generalized proof cannot answer the putatively common question of whether UBS breached its suitability obligations to members of the proposed class. As a result, that question splinters into an enormous number of individual questions potentially as many as the number of purchase and hold decisions made by each member of the proposed class during the Class Period. Accordingly, the Court finds that classwide questions do not predominate over individual questions as required by Rule 23(b)(3). Individual questions cannot be avoided by reference to product focused suitability The Plaintiffs point to evidence that: (1) the Funds were not structured in accordance with one of their stated objectives (which plaintiffs contend made them inherently unsuitable), and (2) individuals within UBS were concerned about the Funds' riskiness which plaintiffs contend suggests that UBS did not conduct any adequate product-focused suitability analyses. Proof that the Funds were not structured in accordance with one of two or more stated objectives is not proof of inherent unsuitability There is some evidence that FINRA deems a security's consistency with its enumerated objectives to be a factor that is at least relevant to the product-focused suitability analysis. Citing this evidence, plaintiffs' reasonable-basis suitability expert makes the logical leap to conclude that a security's consistency with its enumerated objectives is a requirement to satisfy reasonable-basis suitability. Plaintiffs' expert then makes one further leap of logic to conclude that a security with multiple enumerated objectives is unsuitable per se if it is inconsistent with any one of its objectives. UBS objects to both leaps, but it is the second one that the Court focuses on. According to defendants' reasonable-basis suitability expert, it would be illogical to elevate one of the Funds' stated objectives for evaluation in isolation because the different portions of the investment objectives pose some conflict with one another. Defendants' expert explained the possible tension between the income generation and capital preservation objectives in particular: The Court agrees with Mr. Laursen. It would be illogical to determine whether the Funds were suitable per se by examining their compatibility with a single objective preservation of capital in isolation, and plaintiffs cite no evidence that this standard has ever actually been applied in the real world. Accordingly, evidence that the Funds were not structured in accordance with the preservation-of-capital objective would not prove that the Funds were unsuitable per se, and therefore cannot generate a common answer to the question of whether UBS breached its contractual obligation to plaintiffs. Proof that individuals within UBS were concerned about the Funds' riskiness is not proof that UBS failed to conduct any product-focused suitability analyses With respect to UBS's reduction of its own holdings, plaintiffs' own expert testified that this was of limited relevance. That is hardly surprising, as there is no evidence that the Funds were unloaded based on anything other than their riskiness pursuant to UBS's general policy at that time to reduce holdings in risky investments. As plaintiffs' client-focused suitability expert admits, a security being excessively risky for one investor is not itself proof that the security is excessively risky or unsuitable for all investors. It is not apparent why that would be any less true where the investor is UBS itself. Evidence that individuals within UBS were concerned about the Funds' riskiness would not prove that UBS failed to conduct any product-focused suitability analyses, and therefore cannot generate a common answer to the question of whether UBS breached its contractual obligation to plaintiffs. Individual questions with respect to causation Under New York law causation is an essential element of damages in a breach of contract action; and, as in tort, a plaintiff must prove that a defendant's breach directly and proximately caused his or her damages. In the Court's decision denying UBS's motion to dismiss, it relied on plaintiffs' clarification that the theory underlying their claim is not a standard suitability claim, that an investment was not suitable but rather simply that defendants were obligated to conduct a suitability analysis and failed to conduct any such analysis, regardless of whether the investment was suitable or not. However, the issue of whether plaintiffs would have to prove causation and what it would take for them to do so was not presented to or considered by the Court at that time. In the absence of any meaningful reply from plaintiffs, the Court finds that UBS is correct that plaintiffs cannot prove the necessary element of causation without proving that the Funds were actually unsuitable for them. The element of causation, therefore, is another issue subject only to individualized proof. Individual questions with respect to affirmative defenses Individual and affirmative defenses, are factors that a court must consider in deciding whether issues susceptible to generalized proof outweigh individual issues, even though standing alone, they are not sufficient to defeat class certification. UBS contends that these class members would be individually subject to affirmative defenses such as failure to mitigate and duty to object, which would require individualized proof. Plaintiffs do not disagree, but simply contend that such issues should not on their own preclude certification of the class. UBS's affirmative defenses are another issue subject only to individualized proof. Individual questions with respect to damages. First, under plaintiffs' theory of liability, a class member suffered no damage as a result of any breach if the Funds were actually suitable for them at the time they were recommended. Plaintiffs' model, however, does not even attempt to measure whether the Funds were actually suitable for any members of the proposed class. Absent an appropriate model, the question of whether the Funds were actually suitable for a particular client is clearly an individualized one. Second, to the extent the Funds were not actually suitable for members of the proposed class, plaintiffs' model does not attempt to measure the minuend of the market-adjusted damages formula outlined above that is, what clients would have received if UBS had performed a suitability analysis and recommended a suitable investment. The Plaintiffs' model endeavors to avoid such highly individualized determinations by proposing alternative benchmark investments that (1) had risk/return profiles similar to those that the Funds were represented to have, and (2) that were in fact structured in accordance with the preservation-of-capital objective. However, plaintiffs do not contend that the benchmark investments would have been suitable for members of the proposed class, or even that it would be possible to find benchmarks that would have been uniformly suitable. The Court concludes that the manner in which plaintiffs propose to select benchmark investments would almost certainly not satisfy the requirements of their own client-specific suitability expert. Superiority The superiority requirement asks a court to consider whether a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. This is not a case where members of the proposed class will be left without a remedy if the class is not certified, because they may arguably pursue their individual claims in FINRA arbitrations if they so choose. However, because the proposed class fails to satisfy the predominance and typicality requirements of Rule 23, the Court need not and does not determine that FINRA arbitrations are superior to a class action. The Court finds that the sole question of law or fact common to members of the proposed class is significantly outweighed by a number of questions affecting only individual members. Accordingly plaintiffs' motion for class certification is denied. A full-text copy of the District Court's September 17, 2018 Opinion and Order is available at https://tinyurl.com/ydejjta3 from Leagle.com. Nora Fernandez, Plaintiff, represented by Adam David Hollander -- adam.hollander@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Deborah A. Elman -- delman@gelaw.com -- Grant & Eisenhofer P.A., pro hac vice, Jeremy Patrick Robinson -- jeremy@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Daniel Lawrence Berger -- dberger@gelaw.com -- Grant & Eisenhofer P.A., Evan Robert Hoey -- ehoey@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Geoffrey Coyle Jarvis -- gjarvis@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Hannah Elizabeth Ross -- hannah@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, Jacob Nachmani -- Jake.Nachmani@blbglaw.com -- Bernstein Litowitz Berger & Grossmann LLP, James A. Maro, Jr. -- jmaro@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, John Charles Kairis -- jkairis@gelaw.com -- Grant & Eisenhofer, PA, Johnston de Forest Whitman, Jr. -- jwhitman@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Jon Theodore Pearson, Ballard Spahr LLP, pro hac vice, UBS A.G., UBS Financial Services Inc., UBS Financial Services Incorporated of Puerto Rico, UBS Trust Company of Puerto Rico, UBS Bank USA & Carlos V. Ubinas, Defendants, represented by Salvador J. Antonetti-Stutts -- salvador.antonetti@oneillborges.com -- O'Neill & Borges, Ubaldo M. Fernandez-Barrera -- ubaldo.fernandez@oneillborges.com -- O'Neill & Borges, Aura A. Montes-Rodriguez -- aura.montes@oneillborges.com -- O'Neill & Borges, LLC, Janet Anne Gochman -- jgochman@stblaw.com -- Simpson Thacher & Bartlett LLP, Jonathan K. Youngwood -- jyoungwood@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice & Joshua Coleman Polster -- joshua.polster@stblaw.com -- Simpson Thacher & Bartlett LLP. UMPQUA BANK: Settlement in Connolly FCRA Suit Has Prelim Approval ----------------------------------------------------------------- In the case, SARAH CONNOLLY, individually and on behalf of all others similarly situated, Plaintiff, v. UMPQUA BANK, Defendant, Case No. C15-517 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, granted in part and deferred in part the Plaintiff's second unopposed motion for preliminary approval of the class action settlement. The Judge certified the class, for settlement purposes, of all individuals (i) who applied for employment with, or are/were employed by, Umpqua Bank; (ii) who completed a disclosure and authorization form during the Class Period, defined as April 2, 2010 to Sept. 21, 2015; and (iii) about whom Umpqua Bank obtained, during the Class Period, a consumer report for employment purposes. Plaintiff Connolly is appointed as the Class Representative; Elizabeth A. Ryan of Bailey & Glasser LLP and Nicholas F. Ortiz of the Law Office of Nicholas F. Ortiz, P.C. as the Class Counsel; and JND Legal Administration Co. is as the Settlement Administrator. Judge Zilly preliminarily approved the Revised Settlement Agreement executed by the Plaintiff and Umpqua Bank. Within 14 days of the date of the Order, Umpqua Bank will provide to the Settlement Administrator a Class List in the form contemplated in the Revised Settlement Agreement. The Settlement Administrator may begin preparations for distributing notice, i.e., assessing whether the contact information in the Class List is valid and updating the information as necessary and feasible, but no notice will be sent until further order of the Court. The Settlement Administrator will set up a website for the matter so that the address can be included in the revised proposed forms of notice required. The Judge deferred the scheduling of a final settlement approval hearing until after the parties submit revised proposed forms of notice to the class members. The parties will confer, and revised proposed forms of notice to the class members will be filed by Oct. 5, 2018, addressing the following concerns: (a) Postcard Notice: The postcard notice should provide sufficient information so that a class member can take appropriate action even if he or she does not receive the longer notices that will be sent via either email or first-class mail. (b) Emailed or Mailed Notice: Unless the parties object, the definition of the Class that is set forth in the proposed long form of notice should be modified to track the certified class. The deferred portion of the Plaintiff's second motion for preliminary approval of class action settlement, is renoted to Oct. 5, 2018. Along with revised proposed forms of notice, the parties will indicate what dates they propose for the final settlement approval hearing and related deadlines, and what dates, if any, during the two or three months around the timeframe they propose might present any scheduling conflicts for the counsel. The Judge directed the Clerk to send a copy of the Order to all the counsel of record. A full-text copy of the Court's Aug. 28, 2018 Order is available at https://is.gd/IRRxR4 from Leagle.com. Sarah Connolly, individually and on behalf of all others similarly situated, Plaintiff, represented by Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, E. Michelle Drake -- emdrake@bm.net -- BERGER & MONTAGUE, P.C., pro hac vice, Elizabeth Ryan -- eryan@baileyglasser.com -- BAILEY & GLASSER LLP, pro hac vice, Nicholas F. Ortiz, LAW OFFICE OF NICHOLAS F ORTIZ, PC, pro hac vice & Michael L. Murphy -- mmurphy@baileyglasser.com -- Bailey & Glasser, LLP. Umpqua Bank, Defendant, represented by James E. Howard -- jimhoward@dwt.com -- DAVIS WRIGHT TREMAINE & Lauren Ashley Dorsett -- laurendorsett@dwt.com -- DAVIS WRIGHT TREMAINE. UNITED STATES: Class Action Appropriate in Monk Case Against VA --------------------------------------------------------------- DisabledVeterans.org reports that remember Monk v. Wilkie. This is a gamechanger. Based on this federal court decision, in which an eight-judge panel reexamined the fairness of VA precedent barring larger lawsuits, class action is now deemed appropriate in some cases. VA now joins the fold of federal entities that we can sue in large numbers. This could be huge for veterans who have suffered for widespread reasons. Agent Orange, Gulf War illness, Camp Lejeune. It seems like this may be a watershed moment. Maybe there is even a possible class-action case for military sexual assault. After all, military service is a form of employment, and American employers are tasked with providing a tolerant work environment to their employees, insofar as that might be possible. Well, the Armed Forces are American employers. Arguably the most American of American employers. Basically, the "hostile work environment" rhetoric shakes out like this: if anyone hurts you, it should be the other guy. Your wartime enemy, not your comrades in arms. Your unit has the same duty of honor and trust toward you as you have to them. But the real question is… now what? Which cases will come together in true class-action form? Which cases are still better fought as a single person or a small group? Catherine McCarthy, a law student at Yale who handled the Monk case, is excited about the possibilities. "It's still trial and error at this point to see what will work," she said. "But it's a great opportunity, because so much of what we hear wrong about VA are systemic problems, not just one veteran dealing with a single issue." Systemic problems. Widespread dissatisfaction, unsafe living conditions at inpatient facilities, appeals lost in the bureaucracy for a year or more. Sound familiar? John Rowan, President of Vietnam Veterans of America, immediately recognized the potential for a knock-down and drag-out fight over Agent Orange exposure, including the "Blue Water" veterans who served on ships within twelve miles of shore. "The good thing is once there is a court ruling, it's a done deal," he said. "If the court orders them to make a change, there's no budget aspect to it like there is with legislative fixes." Veterans dealing with burn pit exposure illnesses and other toxic chemical exposure could use this new opportunity to force VA's hand. Of course, the major downside to the class-action lawsuit has not changed: It takes forever to complete the discovery process for so many people. So many pages of documents, so many combined years of service… there is always a lot of information to uncover in class action. For big VA battles, class action just might be law done right . . . but it would never be law done fast. Agent Orange veterans, for example, have this annoying tendency to develop rare cancers at elevated rates from the norm. But if you have a rare cancer and may die from it, how much of your remaining life do you want to spend in court? Asking the big questions here. These kinds of cases are high-maintenance, high-profile . . . . and high-cost. Even a law firm dedicated to VA cases, like Krause Law, will likely not be accepting these types of complaints unless it is large enough to shoulder the caseload. That said, this is still a major step forward for veterans, offering a major new avenue to legal victory that VA had always jammed shut . . . until now. [GN] UNITED STATES: Immigrant Families File Mental Health Class Action ----------------------------------------------------------------- Martin Macias Jr., writing for Courthouse News Service, reported that attorneys representing a proposed class of families separated under President Donald Trump's now-abandoned zero tolerance immigration policy said on Sept. 20 that ongoing mental health care is needed to address the "systemic" harm they experienced while in detention. In a 61-page complaint filed July 12, plaintiffs said the federal government inflicted "enormous emotional trauma" by separating families, an act they claim violated their Fifth Amendment rights to due process and equal protection. Plaintiffs seek injunctive relief from the policies and conditions that deprive them of appropriate mental-health services provided under the Flores settlement and seek to represent a class of parents who "were, are or will be detained" in immigration detention. Lead plaintiff J.P., a Guatemalan woman who entered the United States seeking asylum for herself and her 16-year old daughter L.P., fled her country after her husband threatened to kill her. The pair was separated for weeks after a grueling ten-day journey to the U.S-Mexico border. J.P., who speaks the Mayan dialect Q'eqchi', said she couldn't understand documents given to her and didn't know her daughter's whereabouts. "It was really frightening to not know what was happening, how long we would be there, or what would happen to us," J.P. said in court papers July 12. "The pain of being separated from my daughter and worrying about her every day is indescribable." Kevin Fee -- kfee@sidley.com -- of Sidley Austin said on Sept. 20 that the government is obligated to provide "trauma-informed" mental health care to the proposed class of over 1,000 parents and 3,000 children, even if some have been released from custody. A health expert cited by plaintiffs said in court papers that family separation can cause "both immediate and long-term psychological consequences" if left untreated. "This was a grievous and direct harm through concerted policy . . . that inflicted harm on already vulnerable people," Mr. Fee said, adding that the reunification of families doesn't address "future mental disorders" that can come as a result of separation and detention. Plaintiffs claim the government is liable for their harm and should provide mental health care on the basis of the state-created danger doctrine. U.S Justice Department attorney Michael Heyse called the lawsuit "creative lawyering" and said the claims have already been addressed in the Ms. L v Sessions case in the Southern District of California. Mr. Heyse said the claims were "cloaked in injunctive garb" and are more appropriate as a tort claim. He added that the claims are "moot" since Trump's zero tolerance policy had already been enjoined when plaintiffs filed their July 12 complaint. U.S District Judge John Kronstadt said it's not uncommon to have overlapping class actions with similar claims. Mr. Heyse agreed but argued that children in the proposed class should be added as named plaintiffs in the case. The government said in court papers that 437 children in Office of Refugee Resettlement custody remain separated from their parents. Seven of those children have parents who are currently detained by the Department of Homeland Security. A Syracuse University study published on Sept. 20 said 174 detained immigrants challenged their confinement by filing habeas corpus petitions in federal courts in August 2018, up from 136 in July. The study found that habeas corpus petitions were up 98.6 percent from levels reported in August 2013. Mr. Heyse said it's unclear what health services plaintiffs are seeking and said that any government obligation to provide such care must come after the court has found "conscious shocking" neglect. In a motion to dismiss filed Sept. 17, the Trump administration said that class members' fears of future harm due to detention or family separation are "purely speculative" and don't prove that the government should provide them with any post-release care. "No court has ruled that a detention or custodial agency must provide any such care after release from detention or custody, or if at all, beyond a brief transitional period," the motion said. "The Government does not owe a free-standing duty to provide medical care to former detainees." In a sworn statement to the court on Sept. 19, Office of Refugee Resettlement Field Supervisor James De La Cruz said he reviewed each plaintiff's case and found that staff determined they didn't have "mental health issues warranting more intensive interventions" or follow-up treatment. While in custody, if a child is deemed to have mental illness they can be referred to external services and treatment which can include psychotropic drugs, De La Cruz said, adding that formerly detained individuals can access case managers after release. A safety and well-being check is performed for all detained children 30 days after their release, the statement said. Mr. Heyse said mental health "resources are out there" for immigrant families in detention, adding that a listing of pro bono services is made available. Judge Kronstadt asked Mr. Heyse how he expects immigrant families to navigate complex medical systems in a new country where they may not speak the language. Mr. Heyse said there was no evidence that requests for referrals were ever ignored in detention facilities. Judge Kronstadt asked how any potential relief -- compensatory, injunctive or other forms -- would benefit people who have already been released from detention or deported. Mr. Fee said it was not plaintiff's "burden to come up with a plan" but that they could be part of envisioning the best method for relief. Also before the court is defendant's ex parte motion to move a Jan. 7 hearing to Oct. 22. Judge Kronstadt made no ruling on Sept. 20 on the defendants' motion or plaintiffs' motions for preliminary injunctive relief and class certification and did not indicate when he would rule. UNITED STATES: Immigration Advocates to Fight Detention Proposal ---------------------------------------------------------------- Nathaniel Weixel and Rafael Bernal, writing for The Hill, report that immigration advocates are vowing to challenge a new effort by the Trump administration that would allow the government to indefinitely detain children in immigration jails with their parents. The groups say that the administration's proposal is cold-hearted, would overturn important protections for migrant children, and would not do anything to deter families from trying to illegally cross the southern border. Under the proposed rule issued on Sept. 6 by the Departments of Homeland Security and Health and Human Services (HHS), the administration said it plans to issue new regulations that would terminate and replace the Flores agreement, which has governed the detention of migrant children since 1997. The proposal would allow immigration officials to keep children and their parents detained together for the entire length of their court proceedings, which could take months. The move is almost certain to land the administration back in court, where a federal judge has already ruled against previous efforts to terminate the Flores agreement. "The Trump administration's proposed regulations, purporting to implement the Flores settlement, are nothing more than a prescription for the mass internment of children," said Leecia Welch, a senior attorney at the National Center for Youth Law. Ms. Welch's organization is a co-counsel in the Flores case, and a spokesman said the group is likely to challenge the proposal if it is implemented. Peter Schey, president of the Center for Human Rights and Constitutional Law and a leader of the legal team in the original Flores case, said he was already preparing to challenge the Trump administration plan. "We will oppose in court any effort to terminate the Flores settlement unless and until the government proposes regulations that provide for the safe and humane treatment of detained children and that are fully consistent with the terms of the settlement we negotiated in 1997," Mr. Schey said in a statement. The Justice Department, which represents the government in the Flores litigation, declined to comment. The Flores rules are the result of a settlement in a federal class-action lawsuit over the physical and emotional harm done to children held in jail-like settings for extended periods. The settlement was only meant to be temporary, until it could be written into federal law. Multiple administrations have challenged the rules and attempted to extend the time migrant children can be detained, but the federal judge overseeing the case has rejected those attempts. The most recent denial came in July. The Justice Department filed a notice preserving its right to appeal that decision on Sept. 6, the same day the proposed rule was released. Omar Jadwat, director of the ACLU's Immigrants' Rights Project, said the proposal is a new approach to try to circumvent the courts. No administration has attempted to replace the Flores agreement with new regulations, but Mr. Jadwat said he expects this effort to fail as well. "It seems clear that the point of these regulations is to change the status quo to detain more kids for longer, under worse conditions than the settlement allows," Mr. Jadwat said. "It's clear what they're trying to do, but I don't think they're going to be successful." Under the Flores settlement, detaining children for more than 20 days is illegal. The proposed regulations would end that restriction. Flores has been an obstacle for the Trump administration since it enacted a "zero tolerance" policy on illegal border crossings in April. Under that policy, first-time adult offenders, including asylum seekers, were remanded to the Department of Justice over a misdemeanor that previous administrations had opted not to prosecute. Any children brought across the border were separated from their parents, deemed to be "unaccompanied," and detained by HHS in separate facilities sometimes hundreds of miles from their parents. The policy resulted in over 2,500 family separations and a political headache for the administration. Most of those families have been reunited, but more than 400 children remain in HHS custody. The administration was harshly criticized from both Democrats and Republicans over its family separation policy, and the new attempt to withdraw from the settlement could revive that anger, less than two months before the midterm elections. The proposed rules also show the Trump administration is proceeding on its own, without the help of Congress. Administration officials told lawmakers on several occasions that it is Congress's responsibility to overturn Flores, but House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.) said that they could not endorse a GOP plan that would keep families in extended detention. Congressional Democrats railed against the proposed changes. In her weekly press conference on Sept. 6, Pelosi said the policy "has no practical value whatsoever," and called it "another inhumane assault on families and children." Rep. Michelle Lujan Grisham (D-N.M.), chairwoman of the Congressional Hispanic Caucus, in a statement said ending the agreement "will lead to more deaths and risks putting more children and families in danger." "The Trump administration's willingness to make this decision with full knowledge of the atrocious repercussions is negligent and illegal given that it violates federal and state laws enacted to protect children," she added. "If people were very disturbed by children being separated from their families, they're going to be especially disturbed when they see 20,000 families crowded into tents together," Rep. Ruben Gallego (D-Ariz.) told The Hill. [GN] UNITED STATES: Loses Summary Judgment Bid in GM Dealers' Suit ------------------------------------------------------------- The United States Court of Federal Claims issued an Opinion denying Defendant's Motion for Summary Judgment in the case captioned COLONIAL CHEVROLET CO., INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant, ALLEY'S OF KINGSPORT, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant, UNION DODGE, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant. Nos. 10-647C, 11-100C, and 12-900C. (Fed. Cl.). Pending before the court is the motion for summary judgment filed by the defendant, the United States ("government"), pursuant to Rule 56 of the Rules of the United States Court of Federal Claims ("RCFC"). The government seeks summary judgment against all of the General Motors plaintiffs from this consolidated case brought by former General Motors and Chrysler dealers whose dealerships were terminated as part of the United States government's bailout of the auto industry in 2009. Additionally, pending before this court is the plaintiffs' "Motion for Leave to Supplement the Summary Judgment Evidence While Defendant's Motion for Summary Judgment is Under Consideration." The named plaintiffs owned franchise dealerships to sell various General Motors ("Old GM") vehicles before Old GM went into bankruptcy during the 2008-09 financial crisis. The plaintiffs claim that the government is responsible for a taking of their franchise agreements without paying just compensation in contravention of the Fifth Amendment of the U.S. Constitution. U.S. Const. amend V. Specifically, the plaintiffs claim that before the government would agree to give more financial resources to Old GM as part of the government's Troubled Asset Relief Program ("TARP") during the 2008-09 financial crisis, the government forced Old GM to terminate their franchise dealerships through Wind-Down Agreements. This case has 59 plaintiffs who contend that they were coerced into signing Wind-Down Agreements and six plaintiffs who refused to sign the Wind-Down Agreements and had their dealerships rejected in Old GM's bankruptcy. The government makes four arguments as to why the court should enter summary judgment in its favor. First, the government argues that it cannot be held liable for a taking stemming from the execution of any Wind-Down Agreement because the government was not a party to any Wind-Down Agreement and thus the termination of the franchise agreements through the Wind-Down Agreements did not involve any government action. Second, the government argues that even if there was government action in connection with the termination of the plaintiffs' franchise agreements through the execution of the Wind-Down Agreements, the government cannot be liable for a taking because the plaintiffs who signed the Wind-Down Agreements voluntarily relinquished their franchise dealership agreements to Old GM in exchange for various concessions and a onetime monetary payment. Third, the government argues with regard to the plaintiffs who signed the Wind-Down Agreements that the government cannot be liable for a taking under the Fifth Amendment because those plaintiffs released the government from all liability by agreeing, in their Wind-Down Agreements, to release the shareholders of the 363 Acquirer of GM ("363 Acquirer" or "New GM") from all liability following the Old GM bankruptcy. The United States was a shareholder of the 363 Acquirer. Finally, the government argues with regard to both the plaintiffs that signed Wind-Down Agreements and the plaintiffs that were offered Wind-Down Agreements but did not sign the Agreements that all of the plaintiffs received or were offered economic benefits in those Agreements that equal or exceed what they are seeking in this case, i.e. the value of their dealership had Old GM not received a government bailout. As such, the government argues none of the plaintiffs can prove a takings claim. Plaintiffs argue, in response, that there are disputed issues of material fact that preclude the entry of summary judgment in favor of the government. First, the plaintiffs argue that they have presented evidence to show that the government forced Old GM to terminate the plaintiffs' franchise dealership agreements and thus, contrary to the government's contentions, the government and not Old GM was responsible for the terminations of their dealerships. Second, plaintiffs argue that they have presented evidence to show that there are disputed issues of material fact which establish that the plaintiffs did not voluntarily relinquish their franchise agreements but were given no choice. Third, the plaintiffs argue that the government is not entitled to summary judgment regarding the 59 plaintiffs that signed the release in the Wind-Down Agreements on the grounds that the release is ambiguous under Michigan state law and that parole evidence is needed to discern the parties' intentions. Specifically, the plaintiffs argue that it is not clear from the language of the release whether the parties intended to include the release of the United States government from takings liability when the plaintiffs agreed to relinquish all claims against the 363 Acquirer. Finally, plaintiffs argue that there are genuine issues of material fact which preclude summary judgment as to the value of plaintiffs' franchise dealership agreements if Old GM had been forced to liquidate in bankruptcy. Plaintiffs argue that they have presented sufficient evidence to show that if Old GM had liquidated they would have received more than they received or were offered in the Wind-Down Agreements. Disputed Issues of Material Facts Preclude Summary Judgment for the Government on the Issue of Whether the Plaintiffs' Franchise Dealership Agreements Were Terminated Because of Government Action The court agrees with the plaintiffs that there are genuine issues of material fact that preclude the court from entering summary judgment in the government's favor on whether there was sufficient government action to support plaintiffs' takings claims. The facts presented by plaintiffs from the SIGTARP report as well as the deposition of Mr. Wilson and the accompanying exhibits demonstrate that the government, through the Task Force, forced Old GM to terminate more dealerships on a more expedited basis and thereby forced the closure of at least some of the plaintiffs' dealerships. In such circumstance, the court cannot agree with the government that the Wind-Down Agreements and the termination of plaintiffs' dealerships was not the result of government action but only the product of a private transaction between the plaintiffs and Old GM. Plaintiffs Did Not Voluntarily Relinquish Their Franchise Dealerships to the United States It is not disputed that when an owner of property voluntarily conveys property to the government or a third party by agreement, the property owner cannot subsequently maintain a takings claim regarding that property against the United States. The plaintiffs could not have avoided the loss of their franchise agreements by not signing the Wind-Down Agreements. The plaintiffs who did not sign the Wind-Down Agreements would have lost their franchise agreements in bankruptcy court. Notwithstanding this, the court agrees with the government that if the value provided for in Wind-Down Agreements equals or exceeds the value of the plaintiffs franchise agreements in the "but for" world there can be no taking. Without evidence regarding the value of the franchises in the "but for" world, the fact that the plaintiffs entered into Wind-Down Agreements with Old GM does not end plaintiffs' takings claims against the United States. The Wind-Down Agreement's Release Provision is Ambiguous The court agrees with the government that the government as a shareholder in the 363 Acquirer is without question included as an intended beneficiary of the release. However the court agrees with the plaintiffs that the scope and extent of the release contained in the Wind-Down Agreements is ambiguous. A release is ambiguous if its language is reasonably susceptible to more than one interpretation. The court finds that the scope of the release is ambiguous and thus it is necessary for the court to hold a trial to determine the scope of the Wind-Down Agreement's release. The release is ambiguous because the government was not specifically named as a third-party beneficiary, but became a third-party beneficiary through its status as a shareholder of the 363 Acquirer. Whether the parties thus intended to release the United States government for Fifth Amendment takings claims is unclear. Indeed, the evidence presented by plaintiffs shows that in other agreements entered into with GM executives following the GM bailout, the release language included all potential claims for payment under the laws of the United States, including presumably the Fifth Amendment. The absence of such express language in the Wind-Down Agreements supports plaintiffs' contention that the subject releases are ambiguous on this question. It is for all these reasons that a trial to discern the parties' intentions is needed in accordance with Michigan law. A full-text copy of the Federal Claims Court's September 17, 2018 Opinion is available at https://tinyurl.com/y9w4g248 from Leagle.com. COLONIAL CHEVROLET CO., INC. & MIKE FINNIN MOTORS, INC., on their own behalf and on behalf of a class of others similarly situated, Plaintiffs, represented by Marquette William Wolf -- mwolf@tedlyon.com -- Ted. B. Lyon & Associates, PC. ALLEY'S OF KINGSPORT, INC, Consolidated Plaintiff, represented by Nancie Gail Marzulla -- nancie@marzulla.com -- Marzulla Law, LLC. UNION DODGE, INC., doing business as UNION CHRYSLER JEEP DODGE, Consolidated Plaintiff, represented by Jonathan Ambrose Michaels -- jmichaels@mlgautomotivelaw.com -- MLG Automotive Law, APLC. USA, Defendant, represented by Kenneth Michael Dintzer, U. S. Department of Justice - Civil Div. UNITED STATES: Migrant Families Sue Over "Zero Tolerance" Policy ---------------------------------------------------------------- Stephanie Griffith, writing for Think Progress, reports that migrant families separated at the US-Mexican border under President Trump's "zero tolerance" policy have suffered "life-altering" emotional trauma, according to a lawsuit demanding that the government provide counseling for those affected. The federal class action lawsuit was filed by families torn asunder at the US-Mexico border under the administration's family separation policy, CNN reported. The administration abandoned its zero tolerance policy amid a public furor, but many children languished for weeks in detention. Some are being held still apart from their parents, who in some cases have been deported back to their home countries in Central America. ABC News said in a report that the lawsuit seeks to create a fund that will pay for therapy for some 2,000 traumatized children who were ripped away from their parents. The report recounts numerous cases of children displaying anxiety and other symptoms of emotional and psychological injury, long after being returned to their parents, after separations lasting weeks or even months. Meanwhile, as ThinkProgress reported, some 400 children -- more than a dozen of whom are younger than five -- remain apart from their parents. Experts say such prolonged separations can cause untold damage to children, particularly infants and pre-schoolers. The head of the American Academy of Pediatrics told CNN in June that the family separation policy, which the Trump administration has since abandoned, amounts to "nothing less than government-sanctioned child abuse." "It's creating a whole generation of kids who are traumatized," Dr. Colleen Kraft told CNN. A study this past June by the Kaiser Family Foundation illustrated just how damaging family separations can be, particularly on the developing brains and fragile psyches of very young children. "Separating children from their parents exposes them to trauma and toxic stress that can have lifelong negative impacts on their mental and physical health," the report read. "Detention, for even brief periods, has short- and long-term negative effects on the health of parents and children. Studies show high levels of psychiatric distress, including depression and post-traumatic stress, among detained asylum seekers, even after short detention periods, and that symptoms worsen over time." Similarly, the American Academy of Pediatrics issued a position paper last year which concluded that young children should never, ever be placed in detention centers like the ones scattered across the country, where the Trump administration has housed thousands of migrant children. "Studies of detained immigrants, primarily from abroad, have found negative physical and emotional symptoms among detained children and posttraumatic symptoms do not always disappear at the time of release," the report said. "Young detainees may experience developmental delay and poor psychological adjustment, potentially affecting functioning in school," it said, adding that "expert consensus has concluded that even brief detention can cause psychological trauma and induce long-term mental health risks for children." One would think that the Trump administration -- faced with the prospect of permanent emotional damage to thousands of young children -- might have heeded these dire warning from groups that monitor children's health and wellbeing. Sadly, that is not the case. As Think Progress reported, the administration on Sept. 7 proposed new rules that would allow the government to detain migrant children for even longer periods while their parents face immigration court. That could mean millions of dollars more in psychological counseling, and the far higher and more tragic cost of traumatized young lives forever ruined. [GN] UNIV OF SOUTHERN CALIFORNIA: Sued over Doctor's Sexual Conduct -------------------------------------------------------------- JANE DOE 351; JANE DOE 352; JANE DOE 353; JANE DOE 354; JANE DOE 355; JANE DOE 356; JANE DOE 357; JANE DOE 358; JANE DOE 359; JANE DOE 360; JANE DOE 361; JANE DOE 362; and JANE DOE 363, individually and on behalf of all others similarly situated, Plaintiffs v. UNIVERSITY OF SOUTHERN CALIFORNIA; THE BOARD OF TRUSTEES OF THE UNIVERSITY OF SOUTHERN CALIFORNIA; ENGEMANN STUDENT HEALTH CENTER; GEORGE TYNDALL, and JOE 1-500, Defendants, Case No. BC719408 (Cal. Super., Los Angeles Cty., Aug. 28, 2018) seeks to vindicate the rights of young women who were sexually exploited, sexually abused, harassed and molested at the hands of serial sexual predator Mr. George Tyndall, while they were students at the University of Southern California, under the supervision, management, and control of the Board of Trustees. The Plaintiffs allege in the complaint that while attending at the Defendant University, the Plaintiffs were forced to repeatedly seek medical treatment from defendant-sexual predator Mr. Tyndall, due to the fact that Mr. Tyndall was the only full-time gynecologist on staff at the Defendant University's Student Health Clinic. During which time, Mr. Tyndall used this position of trust and authority to sexually exploit and serially sexually abuse the Plaintiffs on countless occasions. Despite the fact that the University and the Board of Trustees, have publicly admitted that they have received numerous complaints about Mr. Tyndalls's sexual abusive behavior dating back to at least the 1990's, the University and the Board of Trustees, deliberately concealed Mr. Tyndall's sexual abuse for decades and continued to grant Mr. Tyndall unfettered access to young, vulnerable female students at the University. University of Southern California is a private research university that offers undergraduate, graduate, and professional courses in the fields of arts, technology, and international business. The institution was founded in 1880 and is based in Los Angeles, California. [BN] The Plaintiffs are represented by: Dale B. Ratner, Esq. MARC J. BERN & PARTNERS, LLP. 201 Spear Street, Suite 1100 San Francisco, CA 94105 Telephone: (323) 642-5424 Facsimile: (212)818-0164 E-mail: DRatner@BemLLP.com - and – Adam P. Slater, ESq. SLATER SLATER SCHULMAN LLP 909 Third Avenue, 28th Floor New York, NY 10022 Telephone: (212) 481-7400 Facsimile: (212) 922-0907 E-mail: ASlater@sssfirm.com - and – Anthony T. DiPietro, Esq. LAW OFFICE OF ANTHONY T. DIPIETRO, P.C. 233 Broadway, Suite 880 New York, NY 10279 Telephone: (212) 233-3600 Facsimile: (212) 202-7575 E-mail: ANTHONY@ATDLaw.com USANA HEALTH: Bid to Drop Rumbaugh Class Suit Still Pending ----------------------------------------------------------- Usana Health Sciences, 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 a decision is pending regarding its motion to dismiss the amended complaint in the "Rumbaugh" suit. On February 13, 2017, a purported shareholder class action lawsuit (Rumbaugh v. USANA Health Sciences Inc., et al., Case No. 2:17-cv-00106) was filed in the United States District Court for the District of Utah by April Rumbaugh, a purported shareholder of USANA, alleging that the Company failed to disclose that (i) the Company's BabyCare subsidiary had engaged in improper reimbursement practices in China, (ii) these practices constituted violations of the Foreign Corrupt Practices Act or FCPA, (iii) as such, the Company's China revenues were in part the product of unlawful conduct and unlikely to be sustainable, and (iv) the foregoing conduct, when it became known, was likely to subject the Company to significant regulatory scrutiny. On behalf of herself and a putative class of purchasers of USANA stock between March 14, 2014 and February 7, 2017, the plaintiff asserted claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 promulgated thereunder. The plaintiff sought, among other things, an award of damages, interest, reasonable attorneys' fees, expert fees, and other costs. The lawsuit named as defendants the Company; its former Co-Chief Executive Officer, David A. Wentz; and its Chief Leadership Development Officer, Paul A. Jones. On June 2, 2017, the court appointed Chi Wah On (another purported shareholder of USANA) as lead plaintiff. On August 4, 2017, lead plaintiff filed a consolidated amended complaint seeking similar relief. This new complaint asserted additional allegations and added the Company's Chief Executive Officer, Kevin G. Guest, and Chief Financial Officer, G. Douglas Hekking, as defendants. On September 18, 2017, the Company filed a motion to dismiss the amended complaint, and briefing was completed on November 8, 2017. The motion to dismiss was argued on April 25, 2018 and a decision is pending. According to a Minute Order dated April 25, 2018, the Court has taken the Motion to Dismiss under advisement. USANA Health said, "The Company believes that the action is without merit, and intends to vigorously defend against all claims asserted." USANA Health Sciences, Inc. develops and manufactures high-quality, science-based nutritional and personal care/skincare products that are distributed internationally through a network marketing system, which is a form of direct selling. The company is based in Salt Lake City, Utah. VALHI INC: NL Industries Still Faces Lawsuits over Lead Pigments ---------------------------------------------------------------- NL Industries, Inc., a subsidiary of Valhi, Inc., still defends itself against lawsuits arising from use of lead pigments in paints, according to the Valhi, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2018. NL's former operations included the manufacture of lead pigments for use in paint and lead-based paint. NL, other former manufacturers of lead pigments for use in paint and lead-based paint (together, the "former pigment manufacturers"), and the Lead Industries Association (LIA), which discontinued business operations in 2002, have been named as defendants in various legal proceedings seeking damages for personal injury, property damage and governmental expenditures allegedly caused by the use of lead-based paints. Certain of these actions have been filed by or on behalf of states, counties, cities or their public housing authorities and school districts, and certain others have been asserted as class actions. These lawsuits seek recovery under a variety of theories, including public and private nuisance, negligent product design, negligent failure to warn, strict liability, breach of warranty, conspiracy/concert of action, aiding and abetting, enterprise liability, market share or risk contribution liability, intentional tort, fraud and misrepresentation, violations of state consumer protection statutes, supplier negligence and similar claims. The plaintiffs in these actions generally seek to impose on the defendants responsibility for lead paint abatement and health concerns associated with the use of lead-based paints, including damages for personal injury, contribution and/or indemnification for medical expenses, medical monitoring expenses and costs for educational programs. To the extent the plaintiffs seek compensatory or punitive damages in these actions, such damages are generally unspecified. In some cases, the damages are unspecified pursuant to the requirements of applicable state law. A number of cases are inactive or have been dismissed or withdrawn. Most of the remaining cases are in various pre-trial stages. Some are on appeal following dismissal or summary judgment rulings or a trial verdict in favor of either the defendants or the plaintiffs. The Company said, "We believe that these actions are without merit, and we intend to continue to deny all allegations of wrongdoing and liability and to defend against all actions vigorously. Other than with respect to the Santa Clara case, we do not believe it is probable that we have incurred any liability with respect to all of the lead pigment litigation cases to which we are a party, and with respect to all such lead pigment litigation cases to which we are a party, other than with respect to the Santa Clara case, we believe liability to us that may result, if any, in this regard cannot be reasonably estimated, because: * NL has never settled any of the market share, intentional tort, fraud, nuisance, supplier negligence, breach of warranty, conspiracy, misrepresentation, aiding and abetting, enterprise liability, or statutory cases (subject to the final outcome of the Santa Clara case), * no final, non-appealable adverse verdicts have ever been entered against NL (subject to the final outcome of the Santa Clara case), and * NL has never ultimately been found liable with respect to any such litigation matters, including over 100 cases over a twenty-year period for which we were previously a party and for which we have been dismissed without any finding of liability. "Accordingly, other than with respect to the Santa Clara case, we have not accrued any amounts for any of the pending lead pigment and lead-based paint litigation cases filed by or on behalf of states, counties, cities or their public housing authorities and school districts, or those asserted as class actions and we have determined that liability to us which may result, if any, cannot be reasonably estimated at this time because there is no prior history of a loss of this nature on which an estimate could be made and there is no substantive information available upon which an estimate could be based." Valhi, Inc., headquartered in Dallas, Texas, is primarily a holding company. The Company operates through its wholly-owned and majority-owned subsidiaries, including NL Industries, Inc., Kronos Worldwide, Inc., CompX International Inc. and Waste Control Specialists LLC. VERISMA SYSTEMS: Court Won't Review McCracken Summary Ruling ------------------------------------------------------------ In the case, ANN McCRACKEN; JOAN FARRELL; SARAH STILSON; KEVIN MCCLOSKEY; CHRISTOPHER TRAPATSOS; and KIMBERLY BAILEY, as individuals and as representatives of the classes, Plaintiffs, v. VERISMA SYSTEMS, INC.; UNIVERSITY OF ROCHESTER; STRONG MEMORIAL HOSPITAL; and HIGHLAND HOSPITAL, Defendants, Case No. 6:14-cv-06248(MAT)(W.D. N.Y.), Judge Michael A. Telesca of the U.S. District Court for the Western District of New York denied without prejudice Verisma's Motion for Reconsideration of the Court's May 15, 2017 Decision and Order denying its Motion for Partial Summary Judgment. The case is a class action by the Plaintiffs against Verisma, and Highland Hospital, Strong Memorial Hospital, and the University of Rochester ("Hospital Defendants"). The Plaintiffs allege that Verisma and the Hospital Defendants systematically overcharged patients who requested copies of their medical records, in violation of New York Public Health Law ("PHL") Section 18. Presently before the Court is Verisma's Reconsideration Motion of the Court's May 15, 2017 Decision and Order denying its Motion for Partial Summary Judgment. The Plaintiffs and the Hospital Defendants argue that a district court decision cannot be controlling law for purposes of Rule 54(b). Verisma counters by rephrasing the reconsideration standard as being warranted when a party points to a controlling or significant change in the law. Judge Telesca finds that it is established beyond debate that district courts are bound by the decisions of the Supreme Court of the United States and those of the Circuit Court of Appeals in their own circuit, but are not bound by those of a federal court of co-ordinate jurisdiction, or even the decisions of a federal Circuit Court of Appeals in another circuit. It necessarily follows that a district court decision cannot constitute an intervening change of controlling law sufficient to warrant reconsideration. Even assuming arguendo that the March 2018 Ruzhinskaya v. HealthPort Techs., LLC district court decision potentially could qualify as "controlling law" for purposes of reconsideration, the Judge holds that the fact that the case is currently on appeal to the Second Circuit renders it an inappropriate basis on which to overturn the Court's previous decision. For the foregoing reasons, Judge Telesca denied Verisma's Motion for Reconsideration. However, the Second Circuit in the Ruzhinskaya appeal eventually may reach a conclusion contrary to that reached by the Court on the proper interpretation of the scope of PHL Section 18. Therefore, the denial of reconsideration is without prejudice. A full-text copy of the Court's Aug. 28, 2018 Decision and Order is available at https://is.gd/0r8x69 from Leagle.com. Ann McCracken, Joan Farrell, Sara Stilson, Kevin McCloskey, Christopher Trapatsos & Kimberly Bailey, Plaintiffs, represented by Kai H. Richter -- krichter@nka.com -- Nichols Kaster, PLLP, Kathryn Lee Bruns, Faraci Lange LLP, Stephen G. Schwarz, Faraci Lange LLP, Anna P. Prakash -- aprakash@nka.com -- Nichols Kaster, PLLP & Mark Edward Thomson -- mthomson@nka.com -- Nichols Kaster, PLLP. Verisma Systems, Inc., Defendant, represented by Caroline Jacobsen Berdzik -- cberdzik@goldbergsegalla.com -- Goldberg Segalla LLP, James D. Macri -- cberdzik@goldbergsegalla.com -- Goldberg Segalla LLP, Ryan Grant Pitman -- rpitman@goldbergsegalla.com -- Goldberg Segalla LLP & Christopher J. Belter -- cbelter@goldbergsegalla.com -- Goldberg Segalla LLP. Strong Memorial Hospital, Highland Hospital & University of Rochester, Defendants, represented by Eric J. Ward -- eward@wardgreenberg.com -- Ward Greenberg Heller & Reidy LLP & Amanda B. Burns -- aburns@wardgreenberg.com -- Ward Greenberg Heller & Reidy LLP. Strong Memorial Hospital, Highland Hospital & University of Rochester, Cross Claimants, represented by Eric J. Ward, Ward Greenberg Heller & Reidy LLP & Amanda B. Burns, Ward Greenberg Heller & Reidy LLP. Verisma Systems, Inc., Cross Defendant, represented by Caroline Jacobsen Berdzik, Goldberg Segalla LLP, Ryan Grant Pitman, Goldberg Segalla LLP & Christopher J. Belter, Goldberg Segalla LLP. VILLAGE OF RIDGEWOOD: Township of Wyckoff Sues over Water Rates --------------------------------------------------------------- TOWNSHIP OF WYCKOFF, BOROUGH OF GLEN ROCK, AND BOROUGH OF MIDLAND PARK, individually and on behalf of all others similarly situated, Plaintiffs, v. THE VILLAGE OF RIDGEWOOD, Defendant, Case No. BER-L-006088-18 (N.J. Super., Bergen Cty., Aug. 20, 2018) alleges that the Retroactive Water Rate Ordinance discriminates against the Plaintiffs and the class and violates the U.S. and New Jersey Constitutions. The Defendant adopted the Retroactive Water Rate Ordinance after the Superior Court, Law Division, Bergen County, issued a July 20, 2017 written opinion by the Honorable Lisa Perez-Friscia, J.S.C., in Docket No. BER-L-5651-12, invalidating the Defendant's pre-existing water rate ordinances as illegally premised upon a "fictitious deficit." Rather than awarding damages in the form of a refund of the monies improperly charged under the invalidated water rate increase ordinances, however, the court's July 20, 2017 opinion remanded the matter to the Defendant to re-establish water rates and calculate the amount of the refund to which the Plaintiffs are entitled. As an initial matter, the Plaintiffs maintain that the entire exercise of remanding the matter back to the Defendant to pass a new municipal ordinance retroactively setting water rates and calculating the amount of the Plaintiffs' refund is both fundamentally unfair and in violation of the law of remedies, and have an appeal pending under Appellate Docket No. A-000363-17 addressing these issues. Ridgewood is a village in Bergen County, New Jersey, United States. [BN] The Plaintiff is represented by: Joseph B. Fiorenzo, Esq. SILLS CUMMIS & GROSS P.C. One Riverfront Plaza Newark, NJ 07102-5400 Telephone: (973) 643-7000 VITAMIN SHOPPE: Plaintiffs Voluntarily Drop Securities Class Suit ----------------------------------------------------------------- Vitamin Shoppe, 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 appointed lead plaintiffs in a federal securities class action has voluntarily dismissed the case without prejudice. On or about August 22, 2017, a federal securities class action suit was filed in the United States District Court in the District of New Jersey against Vitamin Shoppe and certain officers and directors on behalf of purchasers of Vitamin Shoppe common stock between March 1, 2017 and August 6, 2017. The lawsuit sought remedies under the Securities Exchange Act of 1934, including monetary damages, alleging that the defendants made false and misleading statements regarding the Company's reported goodwill, initiatives designed to improve the Company's financial performance, the Company's profitability trends, and its financial results. On April 26, 2018, the court appointed the lead plaintiffs. On July 14, 2018, the appointed lead plaintiffs voluntarily dismissed the case without prejudice. Vitamin Shoppe, Inc. is an omni-channel specialty retailer of vitamins, minerals, herbs, specialty supplements, sports nutrition and other health and wellness products. The company is based in Secaucus, New Jersey. VOLKSWAGEN AG: Dutch Asset Managers Join Class Action ----------------------------------------------------- Sameer Van Alfen, writing for IPE.com, reports that three of the Netherlands' largest pension managers are likely to participate in a class action lawsuit against German car maker Volkswagen related to the 2015 emissions scandal. In addition to the EUR470bn Dutch asset manager APG and the EUR27bn ABN Amro Pensioenfonds, the EUR215bn Dutch asset manager PGGM is also likely to join the lawsuit, according to Pensioen Pro, IPE's Dutch sister publication. Pensioen Pro reported that it was not yet clear whether metal industry schemes PMT and PME had also joined this action, or had opted for another case against the German car manufacturer. Last week, the giant litigation case -- in which approximately 3,500 investors claim damages as a result of their stake in Volkswagen (VW) dropping by one-third -- started at the court of justice in Braunschweig. Both APG and the ABN Amro pension fund have confirmed that they are among the participants of the class action, which also targets VW's subsidiary Porsche. In their annual reports PMT and PME both mentioned "legal procedures because of the emissions scandal of diesel cars". Other Dutch pension funds and providers declined to state whether they were among the litigants. 'However, it is likely that PGGM has also joined the class action. In its most recent sustainability report, it cited a "German legal action against VW and Porsche because of ‘dieselgate'". Andreas Tilp, Esq. -- Info@tilp.de -- of German law firm Tilp Litigation, also declined to provide further details to Pensioen Pro. In 2016 he told Dutch financial newspaper FD that he was representing 30 large Dutch players. MN, the EUR130bn asset manager for both metal schemes, declined to confirm whether it would take part in the litigation case that started last week. Despite the emissions scandal, the large Dutch civil service scheme ABP, healthcare pension fund PFZW and PME have remained invested in VW, keeping both equity and bond holdings. The EUR72bn PMT has since divested its entire stake in the car maker, however. A spokeswoman explained that the decision was not related to the current class action, but to the fact that VW no longer matched PMT's investment criteria. She said a screening had revealed that it was among the 10% of companies with the lowest ESG score. Approximately 1,000 institutional investors are claiming billions of euros in damages in total from Volkswagen. In 2016, Norway's EUR853bn sovereign wealth fund filed a suit claiming roughly EUR2bn in damages. It was represented by Quinn Emanuel Urquhart & Sullivan and backed by US pension fund CalSTRS among others. The EUR21bn Greater Manchester Pension Fund, the UK's largest local authority scheme, joined a class action suit financed by Bentham in 2016, while in the same year the German state pension funds of Bavaria and Hesse filed suits claiming losses of EUR700,000 and EUR3.9m, respectively. The German court of justice, which will only examine the liability question, is to reconvene at the end of November.[GN] VOLKSWAGEN GROUP: Bill for Cheating Emissions May Reach EUR30BB --------------------------------------------------------------- Bloomberg reports that Volkswagen's bill for cheating on diesel emissions could potentially top EUR30 bn (Dh127.34bn) as a legal battle with thousands of investors heats up in the German car maker's own backyard. A court in the town of Braunschweig, just over 30km from VW's Wolfsburg headquarters, has scheduled a series of hearings starting on Sept. 3 in a case combining claims by some 4,000 shareholders demanding EUR9bn in compensation. They argue VW failed to warn them soon enough about an investigation by US regulators, who triggered a collapse in the stock after they announced their diesel probe three years ago. Enraged shareholders filed the first cases in October 2015. A year later, a wave of institutional investors followed, among them BlackRock, the California Public Employees' Retirement System and Allianz Global Investors. The proceedings were moved to the Braunschweig civic centre to make space for the hordes of lawyers as well as investors who want to attend. Volkswagen admitted in late 2015 that it rigged diesel vehicles to cheat emissions tests in the US and that about 11 million worldwide could be affected. VW has calculated the scandal's overall financial impact at EUR27.4bn. That includes payouts to US customers, states and regulators and a EUR1bn settlement with German prosecutors. Should the investors score a complete victory, that toll would grow by a third. While a full award is unlikely and the company hasn't made any provisions for the risks, VW has added EUR3.4bn to contingent liabilities in its financial statements for that litigation -- potentially bringing the overall cost above EUR30bn. [GN] WABASH NATIONAL: 2nd Amended Complaint Pending in Suit vs. Supreme ------------------------------------------------------------------ Wabash National 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 a second amended complaint remains pending in a securities class action lawsuit against Supreme Industries, Inc. Prior to the Company's acquisition of Supreme, on November 4, 2016, a putative class action lawsuit was filed against Supreme, Mark D. Weber (Supreme's former Chief Executive Officer) and Matthew W. Long (Supreme's former Chief Financial Officer) in the United States District Court for the Central District of California alleging the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 by making material, misleading statements in July 2016 regarding projected backlog. The plaintiff seeks to recover unspecified damages. On February 14, 2017, the court transferred the venue of the case to the Northern District of Indiana upon the joint stipulation of the plaintiff and the defendants. An amended complaint was filed on April 24, 2017 challenging statements made during a putative class period of October 22, 2015 through October 21, 2016. On May 24, 2018, the Court granted Supreme's motion to dismiss all claims for failure to state a claim. On July 13, 2018, the plaintiffs filed a second amended complaint. The case is stayed as to discovery. The Company said, "Due to the inherent risk of litigation, the outcome of this case is uncertain and unpredictable; however, at this time, management believes that the allegations are without merit and is vigorously defending the matter. As a result, management does not believe this matter will have a material adverse effect on the Company's financial condition or results of operations." Wabash National Corporation manufactures and sells semi-trailers, truck bodies, specialized commercial vehicles, and liquid transportation systems. The company is based in Lafayette, Indiana. WABTEC CORP: 9th Cir. Wants Supreme Court to Tackle Wage Issue -------------------------------------------------------------- Charmaine Little, writing for Northern California Record, reports that the U.S. Court of Appeals for the Ninth Circuit handed off to the California Supreme Court a case concerning the definition of "public works" in the California Labor Code. The appeals court determined on Sept. 6 that the state Supreme Court can better resolve a dispute between John Busker and his former employer, Wabtec Corp. The question at hand is "whether work installing electrical equipment on locomotives and rail cars falls within the definition of 'public works' under California Labor Code 1720(a)(1)… either as constituting 'construction' or 'installation' under the statute or as being integral to other work performed for the PTC (Positive Train Control) project on the wayside" such as "field installation work," according to the opinion. Considering no lawsuit in California has ever answered the question and it is one that is relevant to several California workers, would make the Supreme Court a more appropriate venue to resolve the issue, the appeals court determined. It also added the Supreme Court will have the ability to rephrase the question, and that the appeals court will accept whatever decision it rules. Mr. Busker, who worked for Wabtec, was hired to fulfill on-board work for the company. Wabtec had entered a subcontract with Parsons Transportation Group to help Parsons fulfill its agreement with the Southern California Regional Rail Authority (Metrolink). Metrolink and Parsons were completing a project that called for Parks to design, furnish, and install a communications network, the PTC, which required two different types of labor. The "on-board work" portion was meant to install PTC equipment to Metrolink's rail cars. "Field installation work" meant installing PTC systems on the wayside and tracks. This involved trenching, welding, installing towers for radio antennas, and operating cranes and forklifts. Parsons brought on Wabtec as a subcontractor to help complete the on-board portion and Metrolink okayed it. Mr. Busker filed a wage lawsuit with the California Department of Industrial Relations and the Division of Labor Standards Enforcement. After the DLSE launched an investigation, it determined the project was considered "public works." It charged Wabtec and Parsons with a Civil Wage and Penalty Assessment that resulted in $5,786,349 for prevailing wages and $682,215 for related penalties. Parsons and Wabtec then asked for the Labor Commissioner to evaluate the case. Parsons, Wabtec, and Metrolink agreed that the prevailing wage law doesn't protect on-board work as it is not considered "fixed works" but "rolling stock." Still, before they requested the review, Mr. Busker sued via a putative class action in Los Angeles County Superior Court, stating Wabtec didn't pay workers a prevailing wage and DLSE released the assessment so they could settle the issue in court. Wabtec then transferred the lawsuit to federal district court via the Class Action Fairness Act. That court denied Mr. Busker's request to remand the case back to state court, and the appeals court confirmed. All parties then agreed that the prevailing wage coverage issue would be settled through a summary judgment motion, which the district court granted for Wabtec. Mr. Busker then appealed, bringing the case to the current court. Circuit Judges Richard R. Clifton, Consuelo M. Callahan and District Judge Kenneth M. Hoyt authored the opinion. [GN] WARRANTECH CORP: Faces Class Action Lawsuit ------------------------------------------- Angelica Saylo Pilo, writing for Madison St. Claire Record, reports that a consumer filed a class action against two warranty companies over their extended service plans. Amy Jett, individually and on behalf of all others similarly situated, filed a complaint on July 9 in the U.S. District Court for the Southern District of Illinois against Warrantech Corporation and AMT Warranty Corporation, alleging they violated the Illinois Consumer Fraud and Deceptive Business Practices Act. According to the complaint, the plaintiff purchased an LG refrigerator from H.H. Gregg along with an extended service plan from defendants. Soon thereafter, the refrigerator became inoperable within the five years covered by the warranty, the complaint states. The plaintiff alleges the defendants allegedly refused to pay for the repair or replace the purchased items. The plaintiff requests a trial by jury and seeks an order certifying the class. She seeks actual and exemplary damages. She is represented by William M. Sweetnam, Esq. of Sweetnam LLC in Chicago. U.S. District Court for the Southern District of Illinois case number 3:18-cv-01366 [GN] WORLD WRESTLING: Court Dismisses Retired Wrestlers' Suit -------------------------------------------------------- The United States District Court for the District of Connecticut issued a Memorandum granting Defendants' Motion for Judgment on the Pleadings in the case captioned RUSS McCULLOUGH, et al. Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC., Defendant, WORLD WRESTLING ENTERTAINMENT, INC., Plaintiff, v. ROBERT WINDHAM, THOMAS BILLINGTON, JAMES WARE, and OREALPERRAS, Defendants, JOSEPH M. LAURINAITIS, et al., Plaintiffs, v. WORLD WRESTLING ENTERTAINMENT, INC. and VINCENT K. McMAHON Defendants. Civil Action Nos. 3:15-CV-1074 (VLB) Lead Case, 3:15-CV-994 (VLB) Consolidated Case, Civil ACTION No. 3:16-CV-1209 (VLB) Consolidated Case. (D. Conn.). The Plaintiff's counsel, Konstantine Kyros, filed the first of six lawsuits on behalf of former WWE wrestlers, alleging they are either suffering from symptoms of permanent degenerative neurological conditions resulting from traumatic brain injuries sustained during their employment, or are at increased risk of developing such conditions. Motion for Judgment on the Pleadings After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings. A motion for judgment on the pleadings is decided on the same standard as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Motion to Dismiss To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Plaintiffs' Fraudulent Concealment and Medical Monitoring Claims are Barred by the Court's Prior Rulings The Plaintiffs assert separate counts of fraudulent concealment and medical monitoring despite this Court's clear holding, in the very first of the WWE concussion cases that Attorney Kyros filed, that neither constitute causes of action under Connecticut law. Nor has he filed or prevailed on an appeal of the Court's rulings or filed a motion for reconsideration pointing out any error in the Court rulings. Attorney Kyros simply ignores the Court's rulings in violation of the law-of-the-case doctrine. These claims must therefore be dismissed once again. Plaintiffs Have Asserted Numerous Patently Time-Barred Claims The SAC does not allege that any Plaintiff wrestled for WWE and suffered a head injury while wrestling later than 2011. Tort Claims Section 52-577 provides that no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. The three year limitation period of Section 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury. The Plaintiffs' tort claims arise out of their allegation that WWE concealed the risk that concussions or subconcussive blows could cause permanent degenerative neurological conditions in order to induce Plaintiffs to continue to continue wrestling. This omission must have occurred at a time when the Plaintiffs were still wrestling and could still suffer head injuries while wrestling. With the possible exception of Plaintiff James Snuka, discussed in the next section, no Plaintiff has alleged that he or she wrestled for WWE later than 2011. Wrongful Death and Survival Actions The estates of five wrestlers James Snuka, John Matthew Rechner, Brian David Knighton, Timothy Alan Smith, Ronald Heard, and Harry Masayoshi Fujiwara also assert wrongful death and survival claims. Wrongful death claims must be brought within two years from the date of death except that no such action may be brought more than five years from the date of the act or omission complained of. The complaint does not allege, and the affidavit does not support any allegations, that Mr. Snuka suffered any head injuries or risked incurring such injuries later than 1996. All these wrestlers, with the possible exception of Mr. Snuka, retired more than five years before this lawsuit was filed. And Mr. Snuka has not alleged that any of his alleged injuries were incurred during WWE appearances post-dating 1996. Wrongful death actions are therefore barred by Section 52-555. Survival actions are barred because the statutes of limitation or repose for each of the deceased Plaintiffs' other claims have elapsed. Misclassification Claims The Plaintiffs assert misjoined claims that they were misclassified as independent contractors and thereby denied the benefits and protections of the Occupational Safety and Health Act, the National Labor Relations Act, the Employee Retirement Income Security Act, and the Family and Medical Leave Act. Because the Plaintiffs assert that the misclassification was part of a scheme to defraud the Plaintiffs and achieved by the presentation to the Plaintiffs of boilerplate Booking Contracts, the misclassification claims are governed either by the three-year statute of repose for tort actions. The Plaintiff who most recently joined WWE did so in 2006 approximately ten years before this case was filed. Therefore, none of the Plaintiffs can establish that they were first misclassified as independent contractors within six years of the date they filed the complaint in this action. Plaintiffs' ERISA and OSHA reporting claims are predicated on this misclassification claim, and Plaintiff has not offered the Court any authority to suggest that these claims may survive after the misclassification claim is dismissed. RICO Claims The Plaintiffs' claims under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. Section 1132(a)(3) are also time-barred. Civil RICO actions have a four-year limitations period. Because the Plaintiffs' RICO claims are predicated on Plaintiffs' alleged misclassification as independent contractors, and such misclassification must have taken place when each Plaintiff was first hired, the limitations period runs from when each Plaintiff signed a booking contract, began working for WWE, first received a tax statement classifying him or her as an independent contractors, or noticed he or she was not receiving the benefits to which WWE employees were entitled. No Plaintiff has alleged that he or she did so less than ten years before this action was filed. Plaintiffs' RICO claims are therefore time-barred. FMLA Claims The Family and Medical Leave Act provides that an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. For a willfull violation, the limitations period is three years. With the exception of Mr. Snuka, each Plaintiff stopped working for WWE more than three years before this case was filed. They therefore cannot establish that their FMLA claims arose within the limitations period. Plaintiff Snuka has not alleged that he even asked for family or medical leave between 2013 and 2016. He also has not alleged that he was improperly denied such leave or punished for taking such leave within the limitations period. The Plaintiffs' FMLA claims are therefore time-barred. Successor Liability Because all of the substantive claims against WWE are time-barred, and all the claims that arise out of Plaintiffs' work for ECW or WCW predate their WWE claims, these ECW and WCW claims are also time-barred. The Court therefore need not specifically address whether WWE should be liable for claims arising out of its relationship with ECW or WCW. Plaintiffs' Unconsionable Contracts Claims are Frivolous The Plaintiffs claim that their booking contracts were void as unconscionable, but they attach the contracts of only two wrestlers to their complaint, and identify no particular unconscionable terms. . Even if the Court were to liberally construe these claims as undue influence claims, they would not be actionable and are therefore frivolous. The Connecticut Supreme Court has held that ratification results, as a matter of law, if the party who executed the contract under duress accepts the benefits flowing from it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to annul or avoid it. The Statutes of Limitation Should Not Be Tolled Under the Continuing Course of Conduct Doctrine Under appropriate circumstances, the Connecticut statutes of repose may be tolled under the continuing course of conduct doctrine. The plaintiff must show the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the original wrong; and (3) continually breached that duty. The Plaintiffs have not established that WWE had any continuing duty with respect to their health or their employment status after they left WWE. For example, the Plaintiffs allege that WWE sends substance dependency letters annually to its former performers offering free treatment, as well as community updates and quarterly royalty payments and maintains a Talent helpline. It is reasonable to infer, based on WWE's offer to provide substance abuse treatment, that the hotline is related to substance abuse prevention or treatment. It is not reasonable to conclude from the allegations in the complaint that WWE has a continuing duty to keep itself apprised of former wrestlers' health or to provide comprehensive health care to these wrestlers. It is similarly unreasonable to infer that retired wrestlers would not seek medical treatment from sources outside of WWE after their retirement. Indeed, Plaintiffs do not allege that WWE purported to be their primary health care provider, or that WWE diagnosed, treated, monitored, or advised the Plaintiffs regarding their health, including their mental health, after they retired. Similarly, the Court is at a loss to imagine how continuing royalty payments give rise to any duty to the Plaintiffs regarding their alleged misclassification as independent contractors decades earlier. A full-text copy of the District Court's September 17, 2018 Memorandum is available at https://tinyurl.com/ybf7ockz from Leagle.com. Joseph M. Laurinaitis, also known as Road Warrior Animal, Paul Ordndorff, also known as Mr. Wonderful, Chavo Guerrero, Sr., also known as, Bryan Emmett Clark, Jr., also known as, James Harris, also known as, Dave Hebner, Earl Hebner, Chris Pallies, also known as, Ken Patera, Terry Michael Brunk, also known as, Barry Darsow, also known as, Bill Eadie, also known as, John Nord, also known as, Jonathan Hugger, also known as, James Brunzell, also known as, Susan Green, also known as, Angelo Mosca, also known as, James Manley, also known as, Michael Enos, also known as, Bruce Reed, "Butch", Carlene B. Moore-Begnaud, also known as, Sylvain Grenier, Omar Mijares, also known as, Don Leo Heaton, also known as, Troy Martin, also known as, Marc Copani, also known as, Mark Canterbury, also known as, Victoria Otis, also known as, Judy Hardee, also known as, Mark Jindrak, Bernard Knighton, as Personal Representative of Estate of Brian Knighton, a.k.a. Axl Rotten, Marty Jannetty, Jon Heidenreich, Terry Szopinski, also known as, Sione Havea Vailahi, also known as, Larry Oliver, also known as, Bobbi Billard, Tracy Smothers, also known as, Michael R. Halac, also known as, Rick Jones, also known as, Ken Johnson, also known as, George Gray, also known as, Ferrin Jesse Barr, also known as, Lou Marconi, Rod Price, Donald Driggers, Rodney Begnaud, also known as, Ronald Scott Heard, on behalf of estate of Ronald Heard & Boris Zhukov, Consol Plaintiffs, represented by Anthony M. Norris -- anorris@kyroslaw.com -- Kyros Law Offices, pro hac vice, Brenden P. Leydon -- Bleydon@ tooherwoci.com -- Wocl Leydon LLC, Erica C. Mirabella -- Erica@mirabellaLLC.com -- Mirabella LLC, pro hac vice, Sylvester J. Boumil -- SJBoumil@Boumil-Law.com -- pro hac vice & Konstantine Kyros -- kon@kyroslaw.com -- Kyros Law Offices. Salvador Guerrero, IV, also known as Mr. Wonderful, Consol Plaintiff, represented by Anthony M. Norris, Kyros Law Offices, pro hac vice, Brenden P. Leydon, Wocl Leydon LLC, Erica C. Mirabella, Mirabella LLC, pro hac vice & Sylvester J. Boumil, pro hac vice. World Wrestling Entertainment, Inc, Defendant, represented by Christopher M. Verdini -- christopher.verdini@klgates.com -- K&L Gates, LLP, pro hac vice, Eugene J. Podesta, Jr. -- gpodesta@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkovitz, PC, R. Bruce Allensworth -- bruce.allensworth@klgates.com -- K&L Gates, LLP, pro hac vice, Ryan M. Tosi -- ryan.tosi@klgates.com -- K&L Gates, LLP, pro hac vice, Stefanie M. Lacy -- Stefani.lacy@klgates.com -- K&L Gates, LLP, pro hac vice, Terry Budd -- terry.budd@buddlawglobal.com -- K&L Gates, LLP, pro hac vice, Curtis B. Krasik -- curtis.krasik@klgates.com -- K&L Gates, LLP, pro hac vice, Jeffrey Mueller -- jmueller@daypitney.com -- Day Pitney LLP, Jerry S. McDevitt -- jerry.mcdevitt@klgates.com -- K&L Gates, LLP, pro hac vice, Jonathan B. Tropp -- jbtropp@daypitney.com -- Day Pitney LLP & Thomas D. Goldberg -- tgoldberg@daypitney.com -- Day Pitney LLP. WYNN RESORTS: Still Faces Ferris Securities Class Suit in Nevada ---------------------------------------------------------------- Wynn Resorts, Limited still defends itself against a securities class action filed by John V. Ferris and Joann M. Ferris, 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 20, 2018, a securities class action was filed against the Company and certain current and former officers of the Company in the United States District Court, Southern District of New York (which was subsequently transferred to the United States District Court, District of Nevada) by John V. Ferris and Joann M. Ferris on behalf of all persons who purchased the Company's common stock between February 28, 2014 and January 25, 2018. The complaint alleges, among other things, certain violations of federal securities laws and seeks to recover unspecified damages as well as attorneys' fees, costs and related expenses for the plaintiffs. The Company said, "The defendants in these actions will vigorously defend against the claims pleaded against them. These actions are in preliminary stages and management has determined that based on proceedings to date, it is currently unable to determine the probability of the outcome of these actions or the range of reasonably possible loss, if any." Wynn Resorts, Limited is a developer, owner and operator of destination casino resorts (integrated resorts). The company is based in Las Vegas, Nevada. XPERTS CONSTRUCTION: Underpays Operators & Laborers, Suit Alleges ----------------------------------------------------------------- FRANKY TIRADO; and TEDDY E. LOZADA, individually and on behalf of all others similarly situated, Plaintiffs v. XPERTS CONSTRUCTION INC.; and ALBERTO GONZALEZ, JR., Defendants, Case No. 3:18-cv-01614 (D. P.R., Aug. 28, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Tirado was employed by the Defendants as operator on December 2017. The Plaintiff Lozada was employed by the Defendants as laborer from December 2017 to February 2018. Xperts Construction, Inc. is a corporation organized and existing under the laws of the Commonwealth of Puerto Rico. The Company is a construction and general contracting firm. [BN] The Plaintiffs are represented by: Ricardo J. Prieto, Esq. SHELLIST LAZARZ SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Telephone: (713) 621-2277 Facsimile: (713) 621-0993 E-mail: rprieto@eeoc.net - and - Andres W. Lopez, Esq. THE LAW OFFICES OF ANDRES W. LOPEZ, P.S.C. P.O. Box 13909 San Juan, PR 00908 Telephone: (787) 294-9508 Facsimile: (787) 294-9519 YRC INC: Workers Class & 9 Subclasses Certified in Alvarez Suit --------------------------------------------------------------- The Hon. Terry J. Hatter, Jr., granted the Plaintiffs' motion for class certification in the lawsuit styled FELIPE ALVAREZ, et al. v. YRC, INC., et al., Case No. 2:12-cv-01374-TJH-E (C.D. Cal.). Plaintiffs Felipe Alvarez and Jerald Shroeder have moved for the certification of a class of all current and former hourly employees employed by YRC at any time from December 14, 2007, to the present. Within this class, are nine subclasses: (1) Employees who worked a shift of over ten hours, but were not made aware of their right to, or did not receive, a second meal break ["The Second Meal Subclass"]; (2) Employees who worked a shift of over ten hours, but were not made aware of their right to, or did not receive, a third rest break ["The Third Rest Subclass"]; (3) Employees whose time records show that no meal period was taken, or that less than a thirty minute meal period was taken, but their hours were, nevertheless, automatically deducted for a thirty minute meal period ["The Auto-Deduct Subclass"]; (4) Non-driver employees who worked a shift of more than five hours and whose time records showed the first meal was taken after the end of the fifth hour ["The Untimely Meal Subclass"]; (5) Driver employees who were subject to YRC's control during their meal breaks ["Driver Meal Subclass"]; (6) Driver employees who were subject to YRC's control during their rest break ["Driver Rest Subclass"]; (7) Driver employees who were subject to YRC's control during meal or rest breaks but were not adequately compensated ["On Call Driver Subclass"]; (8) Employees who were not provided an accurate wage statement ["Wage Statement Subclass"]; and (9) Employees who were not paid all of their earned wages upon termination of employment ["Final Wage Subclass"]. As part of their Motion for Class Certification, Plaintiffs Alvarez and Shroeder attached the declarations of 28 putative class members and a declaration from their expert, Kevin Taylor. In his order, Judge Hatter granted the Defendants' motion to exclude putative class member declarations. Judge Hatter also denied the Defendants' motion to exclude the Plaintiffs' expert testimony.[CC] ZIONS BANCORPORATION: Briefing Underway in Evans Case Appeal ------------------------------------------------------------ A unit of Zions Bancorporation continues to defend a civil class action lawsuit styled Evans v. CB&T, 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, "A civil class action lawsuit, Evans v. CB&T, brought against us in the United States District Court for the Eastern District of California in May 2017. This case was filed on behalf of a class of up to 50 investors in IMG and seeks to hold us liable for losses of class members arising from their investments in IMG, alleging that we conspired with and knowingly assisted IMG and its principal in furtherance of an alleged Ponzi scheme." In December 2017, the District Court dismissed all claims against the Company. In January 2018, the plaintiff filed an appeal with the Court of Appeals for the Ninth Circuit. The appellate briefing process is underway and is scheduled to be completed in the third quarter of 2018. No further updates were provided in the Company's SEC report. Zions Bancorporation is a bank holding company, headquartered in Salt Lake City, Utah, that is one of the largest banks in the United States. Asbestos Litigation ASBESTOS UPDATE: $2.1MM Awarded After Asbestos Trial ---------------------------------------------------- HarrisMartin Publishing reported that a Tennessee jury has awarded nearly $2.1 million to plaintiffs asserting claims on behalf of a former maintenance mechanic, allocating 13 percent liability to the lone remaining defendant at the time of the verdict, Ameron International Corp. The Tennessee Circuit Court for Maury County jury reached the verdict on Sept. 19 after an eight-day trial. Judge Robert E. Lee Davies presided over the trial. The claims were filed on behalf of James W. Davis. Davis, according to the plaintiffs, was a career industrial maintenance mechanic for Stauffer Chemical; his employment caused him to come into contact with asbestos. ASBESTOS UPDATE: $7MM Verdict vs Jenkins Bros. in Asbestos Suits ---------------------------------------------------------------- Digital Journal reported that a police Officer who developed mesothelioma after being exposed to asbestos in a prior career has won a $7 million verdict against Jenkins Bros., a manufacturer of the asbestos-containing valves responsible for his disease, New York law firm Belluck & Fox, LLP announced. This represents one of the highest jury awards obtained in an asbestos case in Upstate New York. In a trial before the Honorable Deborah Chimes in the Supreme Court of The State of New York, County of Erie, the jury unanimously found Jenkins Bros. 50% responsible for the development of James Stock, Jr.'s mesothelioma -- a deadly, incurable form of cancer caused by asbestos exposure. The jury also unanimously found that Jenkins Bros. had a duty to warn Mr. Stock about the hazards of asbestos exposure associated with its valves, but that it failed to do so, and that its negligence was a cause of Mr. Stock's mesothelioma. Mr. Stock and his wife, Lynn M. Stock, were awarded nearly $7 million for pain and suffering, loss of consortium, and loss of earnings. The case is James Stock, Jr. and Lynn M. Stock v. AIR & LIQUID SYSTEMS CORPORATION, as Successor by Merger to Buffalo Pumps, In., et al., (No. 807846/2017). James Stock, Jr. is a 60 year-old police officer in the town of Atlanta, Georgia, who was diagnosed with incurable mesothelioma on January 18, 2017. In 1979, when he was just 21 years old, Mr. Stock went to work at the NY Wire Mills factory in Tonawanda, New York, a decision he couldn't know would have profound consequences for the rest of his life. Mr. Stock began as a laborer, but was quickly elevated to supervisor. It was during his years at NY Wire Mills that he was exposed to asbestos in valves manufactured by Jenkins. During the routine and necessary maintenance and repair of these valves, Mr. Stock would breathe in lethal asbestos fibers, which eventually led to his development of mesothelioma. "James Stock is suffering because of business decisions that Jenkins Bros. made to increase its profits. We're thankful that the jury has held Jenkins responsible for its actions, and we're hopeful that the jury's verdict provides some measure of justice and comfort to the Stock family," said James Long, senior litigator at Belluck & Fox, LLP, who led the firm's trial team. Mr. Long has a distinguished history fighting for people's rights, and in 2017 was named Best Lawyers' "Lawyer of the Year" in Mass Tort Litigation / Class Actions-Plaintiffs for the New York City Metro Area. Belluck & Fox, LLP associate William Papain tried the case with Mr. Long, and the trial team was assisted by partner Seth Dymond. Asbestos is a mineral that has been linked to lung cancer and mesothelioma, an aggressive and deadly form of cancer which results from breathing in asbestos fibers that become lodged in the thin membrane that lines and encases the lungs. At trial, lawyers from Belluck & Fox, LLP presented evidence from a series of experts on the use of asbestos components in Jenkins valves, the state-of-the-art evidence relating to the dangers of asbestos, the causation of Mr. Stock's mesothelioma, and the severe impact mesothelioma will have on Mr. Stock's and his family's lives, including the economic impact that will result from his untimely death. Jenkins was represented by Jeffrey Fegan from Clyde & Co. "This verdict continues Belluck & Fox's tremendous track record of getting the most compensation for Upstate New York's mesothelioma and lung cancer victims, " said Joseph W. Belluck, one of Belluck & Fox's founding partners. Belluck & Fox, LLP was founded in 2002 and has been advocating for mesothelioma patients for over 16 years. The attorneys at Belluck & Fox help injured people recover damages resulting from asbestos, unsafe products, mesothelioma, toxic chemicals, construction accidents and serious injuries. Belluck & Fox, LLP is listed as one of America's best law firms by U.S. News & World Report and a number of their attorneys appear in Best Lawyers magazine. Joseph Belluck has obtained an AV rating from Martindale-Hubbell (the highest ethical rating for lawyers). Jordan Fox is one of the nation's top mesothelioma lawyers in the United States and was named "2013 Plaintiff Lawyer of the Year" for the NY metro area by Best Lawyers. He has had two mesothelioma verdicts recognized as among The National Law Journals' Largest Verdicts of the Year. ASBESTOS UPDATE: 2nd Suit Filed Over Asbestos Cover-Up in Apartment ------------------------------------------------------------------- Aimee Green of OregonLive.com reported that a former tenant of a Southwest Portland apartment complex filed a class-action lawsuit against her former landlord -- claiming that management negligently exposed her and others to asbestos as they renovated decades-old units. Shana Maurer, 23, says she now worries that she might one day develop asbestos-related cancer from inhaling microscopic fibers while living at the Commons at Sylvan Highlands apartments. Her lawsuit claims that management at the complex learned in June during a renovation project that some of its units had tested "hot" for asbestos. "Rather than do the right thing upon discovering that its apartments contained potentially harmful asbestos, Sylvan Highlands orchestrated a massive coverup to keep the asbestos a secret from its tenants and the government," reads Maurer's lawsuit, which doesn't seek a specific dollar amount. A man who answered the phone at the apartment complex declined comment about the lawsuit, and referred comment to Tandem Property Management, which manages the complex. Messages to Tandem Property Management weren't returned. Maurer's suit comes four days after two former employees filed a $40 million lawsuit against Tandem Property Management -- claiming they were fired in retaliation after learning that management had allegedly continued to remodel units without taking proper steps to contain the asbestos. That lawsuit alleges that managers directed workers to carry asbestos-laden drywall through the halls without following government regulations to contain the dangerous fibers. Messages left at Tandem Property Management about that first lawsuit also haven't been returned. Maurer's lawsuit alleges that management hadn't notified renters of the alleged exposure. Maurer also worked for Sylvan Highlands' property management company, and learned about the alleged asbestos from a former co-worker in August, according to her lawsuit. Maurer said she quit and moved out. "Now, all at once, I have to find a whole new job and I have to pick up and build a new life, ...because morally I can't stay with this company," Maurer told The Oregonian/OregonLive. It's unclear how many people live at the large complex, at 1380 S.W. 66th Avenue, about four miles west of downtown Portland and just north of Oregon 26. Sylvan Highlands is comprised of apartments ranging from studios to two-bedroom homes with monthly rents ranging from $1,225 to $1,700 per unit, according to the company website. Garrett Lage, another former tenant who has signed onto the lawsuit, said during three years of living at Sylvan Highlands, he saw units in his building renovated and old materials thrown in open-air Dumpsters. He said he worries he might have inhaled asbestos in the interior hallways of his building. "It's just going to sit there," Lage said. "It's not going anywhere." Lage said he also fears he might have been exposed in the process of packing up and moving out last month when his lease was up. He removed picture frames and nails from the drywall of his unit, he said. Portland attorney Michael Fuller is representing Lage and Maurer as part of a class of tenants or former tenants. The lawsuit was filed in Multnomah County Circuit Court. ASBESTOS UPDATE: 33-Year Old Woman Dies of Asbestos Cancer ---------------------------------------------------------- BBC News reported that Rose Wharton died of mesothelioma at her Oxford home on 20 May, after being diagnosed in September. Coroner Darren Salter said it was a "very unusual" case, because the illness usually only affects those who worked around asbestos for decades. He told Oxford Coroner's Court he had never seen a case like it. Most cases of mesothelioma are diagnosed in people aged between 60 and 80, according to the NHS. In a statement Ms Wharton's family said she could have been exposed to the material while building a school in Argentina during her gap year when she was 18. But Mr Salter said that as this could not be confirmed, he would have to record a narrative verdict, stating the cause of her cancer was not known. Ms Wharton, who worked as a medical statistician and was born in Cambridge, was described as "fit and well" with no medical problems except asthma. A crowdfunding page set up in her memory has raised almost £3,000 towards research into peritoneal mesothelioma. Her colleagues at the Nuffield Department of Clinical Neurosciences at the University of Oxford said Ms Wharton would be "greatly missed". Mr Salter said: "I don't think I have seen a case like this. "Mesothelioma normally affects men working as plumbers or heating engineers for 30 or 40 years, but this is very different from that." ASBESTOS UPDATE: Appeal from $13MM Verdict in Lopez Still Pending ----------------------------------------------------------------- An appeal from a US$13 million verdict in an asbestos-related case against Tyson Foods, Inc.'s subsidiary related to the death of Mark Lopez 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 states, "The Hillshire Brands Company was named as a defendant in an asbestos exposure case filed by Mark Lopez in May 2014 in the Superior Court of Alameda County, California. Mr. Lopez was diagnosed with mesothelioma in January 2014 and is now deceased. Mr. Lopez's family members asserted negligence, premises liability and strict liability claims related to Mr. Lopez's alleged asbestos exposure from 1954-1986 from the Union Sugar plant in Betteravia, California. The plant, which was sold in 1986, was owned by entities that were predecessors-in-interest to The Hillshire Brands Company. In August 2017, the jury returned a verdict of approximately US$13 million in favor of the plaintiffs, and a judgment was entered. We have appealed the judgment and filed our initial appellate brief." A full-text copy of the Form 10-Q is available at https://is.gd/4fwnjy ASBESTOS UPDATE: Asbestos Forces County Employees to Evacuate ------------------------------------------------------------- NewsOK.com reported that asbestos found on the sixth floor of the Oklahoma County Office Building caused a forced evacuation, requiring dozens of employees in the public defender's office and others to clear out. Cleanup could take more than a year, officials said. "I have 20 offices right now quarantined," Public Defender Bob Ravitz said Friday during an emergency county commissioners meeting. "That area is totally off limits. ... The most important thing is my employees' safety." With the entire sixth floor having to be evacuated, Ravitz must relocate 73 of his employees. The public defender said his attorneys and other staff will be dispersed throughout other floors of the office building, the courthouse and off-site. "It's a total mess," he said during the meeting. "Obviously, I'm not happy to have to have five different locations to run an office for the next potentially year and a half." A roof project at the office building "shook loose" asbestos in the ceiling, Ravitz told The Oklahoman. Leaks from rain could cause a breach in the ceiling tiles, he added. "We could have a real messy situation," he said. The roof project has been suspended until the asbestos issue is resolved, officials said during the meeting. Ravitz also said many of his attorneys haven't been able to access their files because of the asbestos. "Several of them have jury trials," he said. Ravitz said they've started packing up hundreds of boxes of files and are cleaning files stored in locations with asbestos. During the meeting, District Attorney David Prater said, "This is more than a wake-up call." "There is not an emergency contingency plan for things like this to occur. The notification of department heads and how we handle health and safety issues regarding our employees is wholly inadequate and frankly unacceptable," Prater told the commissioners. "Asbestos is dangerous." Prater said he wasn't trying to blame anyone but encouraged the commissioners to revisit how emergency situations are addressed. The district attorney's office is on the fifth floor of the office building. Prater, though, has 15 employees on the sixth floor. "We are trying to determine exactly where they're going to go," he said. Two of the three county commissioners also have offices on the sixth floor. They, too, will have to relocate. ASBESTOS UPDATE: Avon Still Defends Talc-Related Suits at June 30 ----------------------------------------------------------------- Avon Products, Inc. continues to defend itself in numerous personal injury lawsuits related to asbestos-contaminated talc 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. Avon Products states, "The Company has been named a defendant in numerous personal injury lawsuits filed in U.S. courts, alleging that certain talc products the Company sold in the past were contaminated with asbestos. Many of these actions involve a number of codefendants from a variety of different industries, including manufacturers of cosmetics and manufacturers of other products that, unlike the Company's products, were designed to contain asbestos. "We believe that the claims against us are without merit. We are defending vigorously against these claims and will continue to do so. To date, there have been no findings of liability against the Company in any of these cases but we are unable to predict the ultimate outcome of each case. "Additional similar cases arising out of the use of the Company's talc products are reasonably anticipated. At this time, we are unable to estimate our reasonably possible losses, if any. Also, in light of the inherent litigation uncertainties, potential costs to litigate these cases are not known, but they may be significant, though some costs will be covered by insurance." A full-text copy of the Form 10-Q is available at https://is.gd/YuPGKB ASBESTOS UPDATE: BNSF Still Defends PI Claims at June 30 -------------------------------------------------------- Burlington Northern Santa Fe, LLC ("BNSF") remains a party to a number of personal injury claims by employees and non-employees who may have been exposed to asbestos, 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 states, "The heaviest exposure for certain BNSF employees was due to work conducted in and around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposures, including exposure from locomotive component parts and building materials, continued after 1967 until they were substantially eliminated at BNSF by 1985. "BNSF assesses its unasserted asbestos liability exposure on an annual basis during the third quarter. BNSF determines its asbestos liability by estimating its exposed population, the number of claims likely to be filed, the number of claims that will likely require payment and the estimated cost per claim. Estimated filing and dismissal rates and average cost per claim are determined utilizing recent claim data and trends. "Throughout the year, BNSF monitors actual experience against the number of forecasted claims and expected claim payments and will record adjustments to the Company's estimates as necessary. "Based on BNSF's estimate of the potentially exposed employees and related mortality assumptions, it is anticipated that unasserted asbestos claims will continue to be filed through the year 2050. The Company recorded an amount for the full estimated filing period through 2050 because it had a relatively finite exposed population (former and current employees hired prior to 1985), which it was able to identify and reasonably estimate and about which it had obtained reliable demographic data (including age, hire date and occupation) derived from industry or BNSF specific data that was the basis for the study. BNSF projects that approximately 65, 80 and 95 percent of the future unasserted asbestos claims will be filed within the next 10, 15 and 25 years, respectively." A full-text copy of the Form 10-Q is available at https://is.gd/CFybrH ASBESTOS UPDATE: Chemours Accrues $38MM for DuPont Suits at June 30 ------------------------------------------------------------------- The Chemours Company had an accrual of US$38 million for asbestos-related lawsuits pending against E.I. du Pont de Nemours (DuPont) at June 30, 2018, 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 states, "Chemours, by virtue of its status as a subsidiary of DuPont prior to the separation, is subject to or required under the separation-related agreements executed prior to the separation to indemnify DuPont against various pending legal proceedings. "In the separation, DuPont assigned its asbestos docket to Chemours. "At June 30, 2018 and December 31, 2017, there were approximately 1,600 lawsuits pending against DuPont alleging personal injury from exposure to asbestos. These cases are pending in state and federal court in numerous jurisdictions in the U.S. and are individually set for trial. "A small number of cases are pending outside of the U.S. Most of the actions were brought by contractors who worked at sites between the 1950s and the 1990s. A small number of cases involve similar allegations by DuPont employees or household members of contractors or DuPont employees. Finally, certain lawsuits allege personal injury as a result of exposure to DuPont products. "At June 30, 2018 and December 31, 2017, Chemours had an accrual of US$38 related to this matter. Chemours reviews this estimate and its related assumptions quarterly." A full-text copy of the Form 10-Q is available at https://is.gd/ovxhRq ASBESTOS UPDATE: Colfax Had $53.8MM Accrued Liability at June 29 ---------------------------------------------------------------- Colfax Corporation had accrued asbestos-related liability of US$53,834,000 and long-term asbestos liability of US$298,865,000 as of June 29, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 29, 2018. The accrued liability represents current accruals for probable and reasonably estimable asbestos-related liability costs that the Company believes the subsidiaries will pay, and unpaid legal costs related to defending themselves against asbestos-related liability claims and legal action against the Company’s insurers, which is included in Accrued liabilities in the Condensed Consolidated Balance Sheets. The Company states, "Management's analyses are based on currently known facts and assumptions. Projecting future events, such as new claims to be filed each year, the average cost of resolving each claim, coverage issues among layers of insurers, the method in which losses will be allocated to the various insurance policies, interpretation of the effect on coverage of various policy terms and limits and their interrelationships, the continuing solvency of various insurance companies, the amount of remaining insurance available, as well as the numerous uncertainties inherent in asbestos litigation could cause the actual liabilities and insurance recoveries to be higher or lower than those projected or recorded which could materially affect the Company's financial condition, results of operations or cash flow." A full-text copy of the Form 10-Q is available at https://is.gd/AffjsW ASBESTOS UPDATE: Colfax Had 17,574 Unresolved Claims at June 29 --------------------------------------------------------------- Colfax Corporation had 17,574 unresolved claims related to asbestos matters as of June 29, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 29, 2018. The Company also disclosed that in the six months ended June 29, 2018, there were 2,090 claims filed and 2,253 claims resolved. The Company states, "Claims filed include all asbestos claims for which notification has been received or a file has been opened. "Claims resolved include all asbestos claims that have been settled, dismissed or that are in the process of being settled or dismissed based upon agreements or understandings in place with counsel for the claimants." A full-text copy of the Form 10-Q is available at https://is.gd/AffjsW ASBESTOS UPDATE: Colgate Awarded Costs on Appeal of Alfaro Suit --------------------------------------------------------------- The appealed case titled LAOSD Asbestos Cases. Delgadina Alfaro, Plaintiff and Respondent, v. Colgate-Palmolive Company, Defendant and Appellant, No. B281022, (Cal. Ct. App. 2d), is the second appeal arising out of a lawsuit by plaintiff Elizabeth Alfaro, in which she alleged that she developed mesothelioma as a result of exposure to asbestos contained in talcum powder products. Her claims for negligence and strict product liability proceeded to trial against two defendants, including appellant Colgate-Palmolive Company (Colgate), a talcum powder manufacturer. The jury found for Colgate on the issue of exposure. Colgate moved for summary judgment in February 2016. On April 6, 2016, the day before the hearing on the motion, Colgate served an offer to compromise pursuant to section 998. Therein, Colgate offered to settle the dispute for a mutual waiver of costs in exchange for a dismissal of Alfaro's claims. Alfaro did not accept the offer. On April 15, 2016, the court issued a written ruling denying summary judgment. The court concluded Colgate had failed to meet its initial burden and, further, that there were triable issues of fact precluding summary judgment. The case proceeded to trial against Colgate and Imerys. After deliberations, the jury found that Alfaro was not exposed to asbestos from Colgate's talcum powder. Accordingly, the court entered judgment for Colgate and Imerys in August 2016. Alfaro appealed, arguing that the trial court erred in excluding testimony from one of her experts regarding her exposure to asbestos. The Court of Appeals of California for the Second District affirmed the judgment in a prior unpublished opinion, Alfaro v. Imerys Talc America Inc. (Aug. 25, 2017, B277284). Colgate filed a memorandum of costs in August 2016, requesting a total of $311,544 in costs, as follows: $2,385 for filing and motion fees; $150 for jury fees; $33,669 in deposition costs; $115,610 in expert witness fees pursuant to section 998; $12,133 for models, blowups, and photocopies of exhibits; $7,046 for court reporter fees; and $140,551 in trial travel and lodging costs. Colgate also sought recovery of its expert witness fees pursuant to section 998. Section 998 authorizes a prevailing party to recover its costs from a losing party who rejected a reasonable, good faith offer to compromise. Good faith requires the offer be "realistically reasonable under the circumstances of the particular case," and carry with it a reasonable prospect of acceptance. Further, recoverable costs must have been "actually incurred and reasonably necessary" to the preparation of the case. Alfaro filed a motion to tax Colgate's costs, arguing that for all of the costs requested, Colgate failed to show that the costs were reasonable and necessary and failed to provide proof of the costs. Alfaro also argued that Colgate's request for expert witness fees was based on a "token" bad faith offer to compromise under section 998. Colgate opposed, attaching receipts and invoices in support of the costs it claimed. Colgate argued that the items sought were properly recoverable, reasonably necessary and reasonable in amount. Colgate withdrew $380 in travel expenses, stating those costs were asserted in error. In her motion to tax costs, Alfaro initially challenged all of the costs as unsupported and unnecessary. She then withdrew her objection to certain items based on supporting documentation provided by Colgate. After the court raised the issue sua sponte, Alfaro argued that the court could consider her inability to pay as part of its assessment of the reasonableness of the costs. Colgate countered that the court could not consider the losing party's ability to pay. In December 2016, the trial court issued a statement of decision granting Alfaro's motion to tax costs and denying all costs requested by Colgate. The court found, based on the evidence at trial, that Alfaro was unemployed and unlikely to return to work, there were no other possible sources of asbestos exposure, and that she did not recover from any of the other defendants in the case. The court also credited Alfaro's evidence "showing that she had no means to pay any award of costs, and that she faces prohibitive medical expenses in connection with her illnesses." The court concluded it had the "inherent power to remit costs whenever to do so would be in the interests of justice or where to do so would infringe upon the right to seek redress of grievances," citing Martin v. Superior Court (1917) 176 Cal. 289 (Martin). The court noted that section 1033.5 required allowable costs to be "reasonable in amount," and concluded that "such language requiring 'reasonableness' permits the discretion necessary to decline to award costs in a case such as this." The court further explained its view that an award of costs against Alfaro would effect "an inhumane and indecent result." It continued, finding that Alfaro "is a seriously ill young woman caught in the middle of a hotly contested scientific debate and a contested investigation of events that occurred decades ago. In light of this conclusion, the court did not reach the issue whether Colgate's section 998 offer was made in good faith. The court noted, however, that "there is a very substantial issue" on this point and that Colgate's offer "made no attempt to compromise this issue based upon the probabilities of an adverse outcome or take into account the huge additional litigation expenses that [Colgate would] incur in any event." Colgate contends the trial court erred in granting Alfaro's motion to tax all of Colgate's costs. Colgate argues it was entitled to costs as the prevailing party under Code of Civil Procedure section 1032, as well as expert witness fees after Alfaro rejected an offer to compromise under section 998. The court denied the entirety of Colgate's request for over $300,000 in costs, finding that Alfaro had no ability to pay and that it would be unjust to impose a large cost award under the circumstances. Colgate contends the trial court lacked the authority to exercise its discretion in this manner and, further, that Alfaro failed to present sufficient evidence of an inability to pay. Colgate further argues the trial court improperly considered evidence of Alfaro's financial situation in declining to award any of the costs incurred by Colgate as the prevailing party in the litigation. In addition, Colgate asserts the court abused its discretion by failing to assess whether its offer to compromise was made in good faith, instead denying Colgate's request for expert witness fees based on Alfaro's inability to pay. The Court agrees that the trial court abused its discretion in denying all costs requested by Colgate and therefore reverses the judgment. The Court concludes that Colgate is entitled to its allowable costs under sections 1032 and 1033.5. Alfaro has conceded that certain items are allowable; thus, Colgate is entitled to recover them as a matter of right. The Court determines that the trial court also erred in failing to determine whether Colgate made its section 998 offer in good faith. The Court also notes that the trial court did not consider Alfaro's challenges to specific costs or assess which costs were reasonable in amount and reasonably necessary to the litigation. Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court. There is no dispute that Alfaro failed to obtain a more favorable result at trial than the offer to compromise. However, the court expressly declined to reach the issue whether Colgate's section 998 offer was made in good faith, nor did it make any findings as to whether that offer was reasonable, or whether the requested expert witness fees were reasonably necessary to the litigation. The Court decides that Colgate was entitled to seek recovery of its post-offer expert witness fees pursuant to section 998. The Court explains that in order to properly exercise its discretion regarding what amount, if any, it was reasonable for Alfaro to pay, the court was required to consider all of the relevant factors. Thus, the court could consider Alfaro's financial circumstances, but it also should have assessed whether the offer to compromise was reasonable and made in good faith, and if so, whether the fees requested by Colgate were incurred and reasonably necessary to the litigation. Here, the trial court expressly declined to make these findings and therefore failed to properly evaluate whether any award was appropriate under section 998. The Court also notes that while there was some evidence in the record regarding Alfaro's limited income and her mounting medical expenses, there was insufficient evidence from which the trial court could have found she lacked the ability to pay any cost award. Indeed, the trial court made several statements to that effect during oral argument, noting that while it seemed Alfaro had limited finances, the court did not actually know the full extent of her assets or income. The Court therefore remands to allow the trial court to exercise its discretion in determining whether Colgate's section 998 offer was made reasonably and in good faith; and if so, the amount of any reasonably necessary expert witness fees. To the extent the record contains sufficient evidence supporting a finding of Alfaro's inability to pay, the court is within its discretion to consider that factor as well. A copy of the Decision dated August 8, 2018, is available at https://tinyurl.com/y8f33cg2 from Leagle.com. Foley & Mansfield, Gary D. Sharp -- gsharp@foleymansfield.com -- Keith M. Ameele -- kameele@foleymansfield.com -- Louis C. Klein -- lklein@foleymansfield.com -- Peter M. Mularczyk -- pmularczyk@foleymansfield.com -- and Margaret I. Johnson -- mijohnson@foleymansfield.com -- for Defendant and Appellant. The Lanier Law Firm and Mark A. Linder for Plaintiff and Respondent. ASBESTOS UPDATE: Companies Sued for D. Neal's Asbestos Exposure --------------------------------------------------------------- Lhalie Castillo of Madison County Record reported that more than two dozen manufacturing companies face a lawsuit over a family's accusation of asbestos exposure. Courtney Patterson, individually and as special administrator of the estate of Donald S. Neal, filed a complaint on Sept. 5 in St. Clair County Circuit Court against several companies, including American Optical Corporation, Guard-Line Inc. and Lamons Gasket Company. According to the complaint, Neal was exposed to asbestos fibers while working as a medic in the Vietnam War and while operating a BP Amoco in Wood River. Neal was diagnosed with lung cancer in October 2016 and died a month later, the complaint states. The plaintiff alleges the companies knew about the toxic effects of asbestos and failed to warn Neal. The plaintiff requests a trial by jury and seeks compensatory and punitive damages of more than $50,000 and all further relief that the court may deem appropriate. She is represented by Ethan A. Flint and Laci M. Whitley of Flint Law Firm LLC in Edwardsville. St. Clair County Circuit Court case number 18-L-585 ASBESTOS UPDATE: Conn. High Ct. Upholds Award in Asbestos Suit -------------------------------------------------------------- Robert Storace of Law.com reported that the Connecticut Supreme Court has affirmed the ruling of the Compensation Review Board awarding workers' compensation benefits to a former longtime Electric Boat employee who died of lung cancer in 2012. Originally, the Workers' Compensation Commissioner for the Eighth District ruled against the estate of Donald Filosi Jr., and in favor of Electric Boat, a company that designs and builds nuclear submarines. But that ruling was appealed by the family and the review board reversed the commissioner's ruling. In a 5-0 ruling on Sept. 18 by the Connecticut Supreme Court, Chief Justice Richard Robinson wrote: "The plaintiffs contend that the record in the present case demonstrates that the administrative law judge relied on the plaintiff's medical experts and found that asbestos exposure was a substantial factor contributing to the decedent’s lung cancer. We agree with the plaintiff." The case is now remanded back to the Workers' Compensation Commissioner, where it will be determined how much in weekly benefits the family was entitled to over the course of their lifetime, and for how long. The family had already secured compensation under the Longshore and Harbor Workers' Compensation Act. Katherine Filosi, Donald Filosi's wife, then sought to collect workers' compensation. Katherine Filosi died of lung cancer herself during the appeal. The couple's son, Daniel, was named executor of the estate after his mother died. "This is a fantastic win. We are very happy and Daniel is very happy," said Amity Arscott, the Groton-based attorney for the family. "I think the message here is that Electric Boat made a business decision to continue using asbestos when they knew it was harmful." Today, Arscott, an attorney with Embry & Neusner, said the industry in general uses asbestos on a limited basis. Donald Filosi was a smoker and Electric Boat had argued that the asbestos on its premises was not a contributing factor in him contacting lung cancer and subsequently dying from it. According the Connecticut Supreme Court’s ruling, Filosi was a heavy smoker of cigarettes from age 14 until his death at age 69. He did stop smoking periodically, the court said. At a hearing on the LHWCA claims, Dr. Laura Welch, who is board certified in internal medicine and occupational medicine, testified that "smoking contributed to [the decedent's] lung cancer, but his asbestos exposure was a substantial contributing cause." Filosi worked as a rigger in Electric Boat's shipyard from 1961 through 1998, when he retired. According to court papers filed on behalf of the family, Filosi moved heavy machinery and equipment on and off of submarines. His job, the court papers said, required the dumping of 55-gallon barrels of asbestos-containing refuse from the submarines. The Groton-based company is on a submarine base. Arscott said she is hoping to get on the workers’ compensation asbestos docket within the month. "They are quite diligent in getting things scheduled," she said. Electric Boat was represented by Peter Quay of the Norwich-based Law Office of Peter D. Quay. Quay did not respond to a request for comment. In addition, Electric Boat's public affairs department declined to comment. ASBESTOS UPDATE: Contractor Finds More Asbestos in Mill Demolition ------------------------------------------------------------------ Mary Ellen Godin of Meriden Record-Journal reported that workers clearing the Mills Memorial Apartments for demolition discovered more asbestos than expected, leading to an estimated cost increase of $110,311 so far, with city officials expecting additional costs. "We have had two change orders so far for additional asbestos material, mostly tile located inside the buildings," said city Economic Development Director Juliet Burdelski. "I anticipate a third change order this week for additional exterior abatement." Workers started the $3 million demolition earlier this summer and plans call for all five buildings to be razed at once. "It is not unusual to have change orders for projects this size," said City Planner Robert Seale, adding the demolition work on the five buildings is continuing. "The exterior abatement is for additional asbestos found behind fabric, beneath the exterior brick," Seale said. "It is limited to small patches on the columns and floors. We do not have an estimate at this time regarding the cost of the abatement." The demolition of the 1960s low-income housing project required that all 144 families be relocated, a task finally completed last winter. The Meriden Housing Authority turned the property over to the city as part of a flood control project which entails uncovering Harbor Brook and extending the Meriden Green to Cedar Street. In exchange, the city gave the housing authority a parcel on State and Mill streets to build Meriden Commons I and II, a 151-unit mixed income housing complex. The city received a $2 million state grant to pay for the demolition and hired Bestech Inc. of Ellington for $1.9 million through a competitive bid process. The company is performing environmental cleanup and has begun to take down the buildings in sections. The company will remove the exterior bricks and then weaken the base of each building until it "basically falls down on itself," Burdelski said this spring. The project is expected to be completed by the end of the year. It wasn't known if the discovery of additional asbestos would impact the timeline. City officials initially hoped to raze the Mills this spring, however, the project hit several snags, including delays in relocating the remaining Mills tenants, said Meriden Housing Authority Executive Director Robert Cappelletti. "Obviously it's very exciting for the new projects to go up and the old to come down," Cappelletti said. "It will be an amazing transformation for the downtown area." ASBESTOS UPDATE: Denial of WGAST's Motions for Judgment Affirmed ---------------------------------------------------------------- In the appealed case Wallace & Gale Asbestos Settlement Trust, v. William Edward Busch, Jr., et ux., No. 1055, September Term, 2017, (Md. Ct. Spec. App.), the Court of Special Appeals of Maryland affirms the judgments of the Circuit Court for Baltimore City denying WGAST's motions for JNOV, a new trial, and, in the alternative, remittitur. Following a 14-day trial, a jury returned a verdict in favor of William Edward Busch, Jr., appellee, and his wife Kathleen. The jury found that Busch suffered from mesothelioma caused by exposure to asbestos-containing insulation products installed by Wallace & Gale Co. during the construction of Loch Raven High School. Busch worked as a steamfitter during the construction of LRHS. W&G was the predecessor to Wallace and Gale Asbestos Settlement Trust, appellant. The specific construction project at which Busch asserts he was exposed to asbestos-containing products installed by W&G is the LRHS project. While employed by Honeywell, Busch worked on the construction of LRHS for three to four months in the late winter and early spring of 1972. Busch worked mostly in the school's boiler room, near two large fifteen-foot by twenty-foot boilers. Busch testified that during the time period that he was working in the boiler room, he was exposed to a "snow storm" of visible dust created when blocks of insulation were cut, stacked around the boilers, and covered with cement. The building specifications for LRHS required that magnesia blocks be used to insulate the boilers. Busch presented evidence at trial that, in 1972, magnesia block contained up to 15% asbestos by weight. Abatement records from the Baltimore County Public Schools were introduced to show that the block used to insulate boilers at LRHS contained asbestos. Additional evidence was presented to establish that the cement used to cover the magnesia block also contained asbestos. Prior to trial, in response to interrogatories, Busch identified McCormick and Georgia-Pacific, LLC as the source of his asbestos exposure at LRHS. Specifically, Busch averred that during the construction of LRHS, he "worked with and around asbestos-containing thermal insulation products sold, supplied and installed by McCormick Asbestos Company (MCIC) and asbestos-containing joint compound manufactured, sold and supplied by Georgia-Pacific LLC." Busch also identified two witnesses with personal knowledge of his exposure in his interrogatory responses: Richard Huettel and Howard Sheppard. At his deposition, Busch testified that he did not know the employer of the insulators around whom he had worked at LRHS. At trial, Busch testified that he did not have any recollection of who employed the insulators during the LRHS construction project. Huettel testified at trial that McCormick was the company responsible for insulation of the boilers at LRHS. Sheppard's 2007 deposition was presented as testimony at trial. Sheppard also testified that McCormick employed the pipe insulators at LRHS. Neither Huettel nor Sheppard identified W&G as the party responsible for insulation in the boiler room at LRHS. WGAST acknowledged at trial that W&G insulators performed work during the construction of LRHS, but contended that no evidence had been presented to show that W&G insulators worked with asbestos-containing products at LRHS. Invoices, order forms, and delivery ticket shipment records were introduced into evidence referencing "Foam Glass" pipe covering material, "FG PC" [fiberglass pipe covering material], "Powerhouse cement," and "Glass Board FSK Facing." It was not disputed that "FG" is an abbreviation for fiberglass and that "Powerhouse cement" does not contain asbestos. Initially, Busch brought suit against seven defendants seeking damages for his occupational exposure to asbestos-containing products and subsequent development of mesothelioma. The case proceeded to trial against four defendants involving eight different worksites. By the close of the plaintiffs' case, only three defendants remained, and only two defendants remained by the close of evidence. The circuit court denied WGAST's motion for judgment at the end of the plaintiffs' case and renewed motion for judgment at the close of evidence. The jury returned a verdict in favor of the plaintiffs against both defendants, WGAST and Georgia-Pacific. The jury found in the defendants' favor with respect to their cross-claims against two former defendants. The jury awarded the plaintiffs a total of $14,568,528 in damages, which was subsequently reduced to $7,284,264 by the circuit court due to the cross-claims against the absent defendants. WGAST moved for JNOV, a new trial, and, in the alternative, remittitur. The circuit court denied WGAST's motions. WGAST noted a timely appeal. Georgia-Pacific noted an appeal as well, but subsequently settled with the plaintiffs. WGAST's argument on appeal is quite narrow. WGAST argues that insufficient evidence was presented upon which a reasonable jury could conclude that W&G was responsible for the supply and/or installation of asbestos-containing magnesia block during the construction of LRHS. WGAST asserts that the evidence produced at trial failed to place Busch near W&G installers using asbestos-containing materials. WGAST emphasizes that the documentary evidence presented does not expressly connect W&G to asbestos-containing products. WGAST further points to documentary evidence demonstrating that W&G installers applied non-asbestos containing insulation (including foamglass and fiberglass) at LRHS. WGAST asserts that, because Busch did not present direct evidence that W&G supplied or installed magnesia block with asbestos cement on the boilers, the jury's verdict cannot stand. WGAST characterizes the jury's verdict as impermissibly speculative, arguing that Busch failed to prove actual, specific exposure to asbestos from W&G's product. The Court explains that, the evidence, though slight, was sufficient to allow the case to go to the jury. In support of his assertion that W&G installed the magnesia block insulation in the boiler room at LRHS, Busch presented the following evidence: (a) Time sheets demonstrating that W&G insulators worked on Job #5679 at LRHS for over 4,500 man-hours during the February -- June 1972 time period. (b) Partial billing statements sent by W&G to Poole for Job #5679 on February 16, 1972 and May 15, 1972 indicating that W&G performed work associated with insulating various plumbing, heating and ventilating surfaces at LRHS. A second partial billing was sent on May 15, 1972 for work on the same project. (c) The partial billings reflect that the value of Job #5679 was $145,250, but the invoices entered into evidence at trial totaled less than $20,000. (d) A partial billing for Job #5679 sent by W&G on February 16, 1972 to A.C. MacDonald, Inc., for work performed by W&G in association with insulating fire lines in boiler room. The Court believes that this evidence could have led a reasonable fact-finder to conclude that W&G was the primary, if not the only, insulator working at LRHS during the critical time period. A reasonable fact-finder could have inferred that, given the significant number of hours W&G performed insulation services at LRHS, the services provided included the insulation of the boiler with magnesia block. A fact-finder might have considered it unlikely that a separate insulation contractor would have been hired for the limited purpose of insulating the boilers while W&G was already on site performing a great deal of insulation work, including work in the boiler room. This evidence does not necessarily compel a conclusion that W&G applied asbestos-containing insulation to the boiler in the boiler room at LRHS. It is, however, evidence upon which a reasonable fact-finder could have found it more likely than not that W&G was responsible for the work. This is all that is required under the preponderance of the evidence standard. Based upon the evidence presented at trial, the Court believes that a reasonable jury could have permissibly inferred that W&G was the primary, if not the only, insulation contractor present during the construction of LRHS, and, therefore, that W&G was responsible for the installation of asbestos-containing insulation in the boiler room. The Court finds that sufficient evidence was produced to support this inference. The Court concludes that the circuit court did not err by denying WGAST's motions for judgment. WGAST's asserts that the circuit court erred in connection with its instruction to the jury about the evidentiary weight of Busch's interrogatory responses and statements in Busch's Complaints. The Court, however, is not are not persuaded by WGAST's assertions. The Court explains that the circuit court's statement that interrogatory responses and statements in Complaints can be considered evidence by the jury is an accurate statement of the law, and the circuit court expressly explained why, in its view, the requested instructions were likely to cause the jury confusion. The circuit court's instruction informed the jury that the interrogatory responses and statements in the Complaints were certainly evidence for the jury's consideration, along with all of the other evidence presented at trial. Thus, the circuit court exercised its discretion when crafting an instruction very slightly different from the verbatim text proposed by WGAST. Therefore, the Court will not disturb this exercise of discretion on appeal. A copy of the Opinion dated August 10, 2018, is available at https://tinyurl.com/yb4nh9xr from Leagle.com. ASBESTOS UPDATE: Expert Testimony Precluded in Talc Lawsuit ----------------------------------------------------------- HarrisMartin Publishing reported that a New York trial court has granted a motion in part to preclude testimony of Colgate-Palmolive's cell biologist in a cosmetic asbestos talcum powder lawsuit, finding that the expert could not testify as to the biological effects on humans of tremolite cleavage fragments or of fibrous anthophyllite cleavage fragments. In the Sept. 7 order, the New York Supreme Court for New York County did allow the expert, however, to testify on the biological effects of minerals components or properties on humans. The claims were asserted on behalf of Sandra Florence Cohen, who allegedly developed mesothelioma from asbestos found in baby powder. ASBESTOS UPDATE: Family Continues Fight for Asbestos Justice ------------------------------------------------------------ Sunderland Echo reported that the family of a Sunderland man who died of asbestos-related cancer a month after being diagnosed are continuing his fight for justice. William Hutton developed symptoms including shortness of breath and back pain towards the end of last year and was diagnosed in March with mesothelioma -- a cancer of the lining of the lungs caused by asbestos exposure. A month later, he passed away aged 76 on April 28 earlier this year. Before he died, the retired civil servant contacted specialist asbestos-related disease lawyers at Irwin Mitchell to investigate how he came to develop the illness. Now his loved ones are carrying on with the case in his memory and are appealing for William's former workmates to come forward and help them gain justice regarding the illness. Lawyers want anyone who worked with William at the Department of Work and Pensions' Plawsworth Resettlement and Reestablishment Unit near Chester-le-Street between 1984 and 1991 to come forward and help them gather information regarding the presence of asbestos at the site. His widow Janet, 72, said: "William recalled how the site was short-term accommodation for a range of people and remembered that he regularly needed to visit the boiler room, where it is likely asbestos was present. "However, he also talked about regularly visiting the nissen huts which were on-site. They were around 40 years old and he recalled they were built from a corrugated whitish-grey material which he didn't believe was metal. Later on in his time there it was decided the buildings should no longer be used, with one reason being the apparent presence of asbestos in them. "It has been very difficult losing William, particularly as he passed away so quickly after the illness took hold. The entire family misses him so much and we are all just desperate for answers as to how this happened. We would be grateful to anyone who may be able to come forward with information to help our case." Kirstie Devine, the specialist lawyer at Irwin Mitchell who is representing William's family, said: "While it is very common for asbestos exposure to be linked to industrial environments, this is one of a growing number of cases we have seen related to public buildings like government sites and hospitals. "William's family remain devastated at losing him and are desperate for answers as to how his contact with asbestos occurred. "We would be grateful to anyone who is able to shed light on this issue and assist the case.” William worked for the DWP -- then known as the Department of Social Security -- from 1968 but said before his death that he believed his asbestos exposure happened during his time as head manager at the Plawsworth Resettlement and Reestablishment Unit. ASBESTOS UPDATE: Gardner Denver Had $100.8MM Reserve at June 30 --------------------------------------------------------------- Gardner Denver Holdings, Inc. had total litigation reserve of US$100.8 million as of June 30, 2018, with respect to potential liability arising from its asbestos-related 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. Gardner Denver states, "The Company has also been named as a defendant in a number of asbestos-related and silica-related personal injury lawsuits. The plaintiffs in these suits allege exposure to asbestos or silica from multiple sources and typically the Company is one of approximately 25 or more named defendants. "Predecessors to the Company sometimes manufactured, distributed and/or sold products allegedly at issue in the pending asbestos and silica-related lawsuits (the "Products"). However, neither the Company nor its predecessors ever mined, manufactured, mixed, produced or distributed asbestos fiber or silica sand, the materials that allegedly caused the injury underlying the lawsuits. Moreover, the asbestos-containing components of the Products, if any, were enclosed within the subject Products. "Although the Company has never mined, manufactured, mixed, produced or distributed asbestos fiber or silica sand nor sold products that could result in a direct asbestos or silica exposure, many of the companies that did engage in such activities or produced such products are no longer in operation. This has led to law firms seeking potential alternative companies to name in lawsuits where there has been an asbestos or silica related injury. "The Company believes that the pending and future asbestos and silica-related lawsuits are not likely to, in the aggregate, have a material adverse effect on its consolidated financial position, results of operations or liquidity, based on: the Company's anticipated insurance and indemnification rights to address the risks of such matters; the limited potential asbestos exposure from the Products; the Company's experience that the vast majority of plaintiffs are not impaired with a disease attributable to alleged exposure to asbestos or silica from or relating to the Products or for which the Company otherwise bears responsibility; various potential defenses available to the Company with respect to such matters; and the Company's prior disposition of comparable matters. However, inherent uncertainties of litigation and future developments, including, without limitation, potential insolvencies of insurance companies or other defendants, an adverse determination in the Adams County Case, or other inability to collect from the Company's historical insurers or indemnitors, could cause a different outcome. While the outcome of legal proceedings is inherently uncertain, based on presently known facts, experience, and circumstances, the Company believes that the amounts accrued on its balance sheet are adequate and that the liabilities arising from the asbestos and silica-related personal injury lawsuits will not have a material adverse effect on the Company's consolidated financial position, results of operations or liquidity. "Accrued liabilities" and "Other liabilities" on the Condensed Consolidated Balance Sheet include a total litigation reserve of US$100.8 million and US$105.6 million as of June 30, 2018 and December 31, 2017, with respect to potential liability arising from the Company's asbestos-related litigation. Asbestos related defense costs are excluded from the asbestos claims liability and are recorded separately as services are incurred. In the event of unexpected future developments, it is possible that the ultimate resolution of these matters may be material to the Company's consolidated financial position, results of operation or liquidity. "The Company has entered into a series of agreements with certain of its or its predecessors' legacy insurers and certain potential indemnitors to secure insurance coverage and/or reimbursement for the costs associated with the asbestos and silica-related lawsuits filed against the Company. The Company has also pursued litigation against certain insurers or indemnitors, where necessary. The Company has an insurance recovery receivable for probable asbestos related recoveries of approximately US$96.2 million and US$100.4 million as of June 30, 2018 and December 31, 2017, respectively, which was included in "Other assets" on the Consolidated Balance Sheets. During the six month period ended June 30, 2018 the Company received asbestos related insurance recoveries of US$9.6 million, of which US$4.0 million related to the recovery of indemnity payments, and was recorded as a reduction of the insurance recovery receivable in "Other assets" on the Condensed Consolidated Balance Sheets, and US$5.6 million related to reimbursement of previously expensed legal defense costs, and was recorded as a reduction of "Selling and administrative expenses" in the Condensed Consolidated Statements of Operations. "The largest such recent action, Gardner Denver, Inc. v. Certain Underwriters at Lloyd's, London, et al., was filed on July 9, 2010, in the Eighth Judicial Circuit, Adams County, Illinois, as case number 10-L-48 (the "Adams County Case"). In the lawsuit, the Company seeks, among other things, to require certain excess insurer defendants to honor their insurance policy obligations to the Company, including payment in whole or in part of the costs associated with the asbestos-related lawsuits filed against the Company. In October 2011, the Company reached a settlement with one of the insurer defendants, which had issued both primary and excess policies, for approximately the amount of such defendant's policies that were subject to the lawsuit. Since then, the case has been proceeding through the discovery and motions process with the remaining insurer defendants. On January 29, 2016, the Company prevailed on the first phase of that discovery and motions process ("Phase I"). Specifically, the Court in the Adams County Case ruled that the Company has rights under all of the policies in the case, subject to their terms and conditions, even though the policies were sold to the Company's former owners rather than to the Company itself. On June 9, 2016, the Court denied a motion by several of the insurers who sought permission to appeal the Phase I ruling immediately rather than waiting until the end of the whole case as is normally required. The case is now proceeding through the discovery process regarding the remaining issues in dispute ("Phase II"). "A majority of the Company's expected future recoveries of the costs associated with the asbestos-related lawsuits are the subject of the Adams County Case. "The amounts recorded by the Company for asbestos-related liabilities and insurance recoveries are based on currently available information and assumptions that the Company believes are reasonable based on an evaluation of relevant factors. The actual liabilities or insurance recoveries could be higher or lower than those recorded if actual results vary significantly from the assumptions. There are a number of key variables and assumptions including the number and type of new claims to be filed each year, the resolution or outcome of these claims, the average cost of resolution of each new claim, the amount of insurance available, allocation methodologies, the contractual terms with each insurer with whom the Company has reached settlements, the resolution of coverage issues with other excess insurance carriers with whom the Company has not yet achieved settlements, and the solvency risk with respect to the Company's insurance carriers. Other factors that may affect the future liability include uncertainties surrounding the litigation process from jurisdiction to jurisdiction and from case to case, legal rulings that may be made by state and federal courts, and the passage of state or federal legislation. The Company makes the necessary adjustments for the asbestos liability and corresponding insurance recoveries on an annual basis unless facts or circumstances warrant assessment as of an interim date." A full-text copy of the Form 10-Q is available at https://is.gd/9U8p0y ASBESTOS UPDATE: GBP260,000 Payout for Asbestos Death ----------------------------------------------------- Daily Mail reported that a builder who lost his two brothers to asbestos-linked cancer has won a GBP260,000 payout after he also fell ill with an incurable form of the disease. Andrew Nicholson, 65, from Swanley in Kent, worked on construction sites for Bovis Ltd and Wates Built Homes during the 1970s, and was exposed to asbestos that led to a diagnosis of malignant mesothelioma in September 2016. Neither company provided any respiratory protection or trained him about the threat of asbestos dust, which is the most common cause of this form of cancer. 'It's almost beyond belief that as recently as 30 to 40 years ago, large companies were knowingly exposing their employees to lethal chemicals,' Mr Nicholson told MailOnline. ‘They placed ticking time bombs over our heads while burying theirs in the sand.’ Mr Nicholson began feeling short of breath early in 2016, and was forced to quit work as a contracts manager for a construction company. He soon suspected mesothelioma, having watched both his brothers die from the disease -- Chris in 2008 and Terry in 2004. Terry, a musician, came into contact with asbestos at a recording studio. Chris may have been exposed while a long-term resident at Cane Hill Hospital in Croydon following his diagnosis for Asperger’s syndrome. Mr Nicholson will have any future private medical expenses covered as part of the legal settlement, including expensive immunotherapy not available on the NHS. He is now responding well to an immunotherapy drug trial at Maidstone Hospital. He started in the construction in 1971 as a site clerk in Croydon, south London, for Wates Built Homes. While in the stores he handled sheets of Asbestolux, an asbestos insulating board, and swept up the dust which came off them. In 1974, he moved to the now defunct Bovis Ltd, progressing from a junior surveyor to project manager of their Special Works Division in Sidcup. Again, he was exposed to asbestos dust when visiting sites where Asbestolux and Artex were being used. 'From the outset, I knew what mesothelioma involved and what the prognosis would be,' Mr Nicholson said. What is malignant mesothelioma? It is an incurable form of cancer which stars in cells in the linings of certain organs, including the lungs, and is normally linked to asbestos exposure. In the UK more than 2,600 people are diagnosed with mesothelioma each year. More than 15% of men survive the cancer for more than a year, but only 1% for five years or more. It is estimated that in the UK more than 9 out of 10 men with mesothelioma and more than 8 out of 10 women have been in contact with asbestos. He approached the industrial disease team at London solicitors Hodge Jones & Allen to represent him in a claim against his former employers. He was seeking a compensation payout to immunotherapy which would improve his quality of life and prolong the time he had. His claim was initially contested by Wates and Bovis Ltd, now owned by Lendlease Construction Holdings, on the basis that there had been no breach of duty of care as any exposure to asbestos dust had not exceeded 'permitted safe limits'. However, at a pre-trial meeting between the two parties, Wates and Lendlease tacitly acknowledged their responsibility for causing Mr Nicholson’s illness and agreed to pay him compensation for losses, past and future. The £260,000 lump sum payment was agreed by the insurers of both firms, as well as an indemnity agreement covering Andrew against any future medical and legal bills. 'I am relieved to finally have this legal battle behind me, and peace of mind that the treatment, which I so desperately need, is secured,' he said. His solicitor Isobel Lovett, partner and head of industrial disease at Hodge Jones & Allen, said: 'Mesothelioma is only caused by exposure to asbestos. 'Andrew contracted this disease as a result of his employers exposing him to asbestos at work and failing to protect him from this deadly substance. 'When held to account, many companies drag their heels through the process in the hope that the issue will just go away, as survival rates for mesothelioma don't involve long time frames. According to HSE figures, there were over 3,000 deaths from mesothelioma and asbestos-related diseases in 2015. These types of diseases typically take many years to develop. Widespread use of asbestos, particularly in the post-World War II building industry had led to a large increase in asbestos-related diseases. Annual deaths have increased steeply over the last 50 years, largely as a result of asbestos exposure prior to 1980, and are expected to continue to current levels for the rest of the decade before declining. MailOnline has contacted Wates Built Homes and Lendlease for comment. Asbestos is a heat-resistant mineral that was popular in building and construction until the 1980s until the dangers it posed became clear. As the material was cheap and resistant to fire, it was regularly used as insulation for buildings and electrical hotplate wiring. The first reports about the cancer-causing properties of asbestos first emerged in Germany in the late 1930s. However, it was not until the 1960s that serious diseases like like mesothelioma were firmly established as being caused by asbestos exposure. The danger of asbestos comes from microscopic fibres which can tear off the material and fester in the body to cause cancer. Breathing in small amounts of the fibres does not cause any problems, but it is with larger quantities when health conditions occur. It is now banned in the UK, but it is allowed to remain in some buildings where it is in good condition and undisturbed. ASBESTOS UPDATE: Graham Corp. Still Faces Lawsuits at June 30 ------------------------------------------------------------- Graham Corporation continues to face lawsuits alleging personal injury from exposure to asbestos allegedly contained in or accompanying its 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 states, "We have been named as a defendant in lawsuits alleging personal injury from exposure to asbestos allegedly contained in or accompanying our products. We are a co-defendant with numerous other defendants in these lawsuits and intend to vigorously defend ourselves against these claims. The claims in our current lawsuits are similar to those made in previous asbestos lawsuits that named us as a defendant. Such previous lawsuits either were dismissed when it was shown that we had not supplied products to the plaintiffs' places of work or were settled by us for immaterial amounts. "As of June 30, 2018, we are subject to the claims, as well as other legal proceedings and potential claims that have arisen in the ordinary course of business. Although the outcome of the lawsuits, legal proceedings or potential claims to which we are or may become a party cannot be determined and an estimate of the reasonably possible loss or range of loss cannot be made, we do not believe that the outcomes, either individually or in the aggregate, will have a material effect on our results of operations, financial position or cash flows." A full-text copy of the Form 10-Q is available at https://is.gd/bjHhXq ASBESTOS UPDATE: Grenfell Survivors At Risk of Asbestos Poisoning ----------------------------------------------------------------- The Guardian reported that hundreds of survivors of the Grenfell Tower disaster could be at risk of asbestos poisoning and must be monitored by the NHS, the senior coroner examining the deaths caused by the fire has warned. Dr Fiona Wilcox has written to Simon Stevens, the chief executive of NHS England, urging him to take action to prevent the death toll rising in a formal notice that cites the experience of firefighters and others affected with health problems years after the 9/11 attacks on the US. Her Majesty's senior coroner for inner west London told Stevens she was concerned that no structured health screening programme is in place for people including firefighters and other first responders who were exposed to risks of smoke and dust inhalation. "Without an appropriate system of health screening, there is a risk that illness may arise unnoticed or present later in survivors, first responders and site workers, and thus reduce their life expectancy," she warned. The tower was built in 1974. The now-banned fire retardant was present in textured ceilings and in airing cupboards. If inhaled it can cause mesothelioma, a fatal lung disease that can take decades to develop. Seventy-two people died as a result of the fire on 14 June 2017 and most of them are believed to have died from inhaling poisonous smoke, Dr Wilcox said. She told Stevens: "Real concern has been expressed to me by the bereaved in relation to the health of survivors, especially children, and I have been informed that no physical health screening programme has been put in place to monitor the health of survivors on an ongoing basis." Public Health England has previously said that tests of the air within Grenfell Tower for dust and asbestos did not detect any levels of concern, although they were carried out in the aftermath of the fire. A fortnight after the fire, Deborah Turbitt, the health protection director for PHE in London, said: "Asbestos-related diseases are typically associated with a long-term workplace exposure to high levels of airborne asbestos fibres." Dr Wilcox also highlighted the risk of ongoing mental health problems caused by the trauma of the disaster, including to crime scene investigators who spent months tracing through the charred debris of the tower. She said that while extensive support for mental health issues has been offered by Central and North West London NHS Trust, funding remains in place only until March 2019. "It may be that the provision of some care services, for physical or psychological damage may be provided by occupational health services outside the NHS, however a scale and risk assessment of need and care provision needs to be undertaken to minimise persons affected slipping through the net and being lost from appropriate supportive services," she said. She added: "Action should be taken to prevent future deaths and I believe you have the power to take such action." The survivors' group Grenfell United welcomed the coroner's intervention. "We are pleased the coroner has backed the calls from survivors and bereaved for the need for long-term health screenings," a spokeswoman said. "The potential long-term impacts of the fire must be taken seriously. The NHS are just about to start some screenings. We need to make sure this is the start of the long-term healthcare for survivors now and for years to come." A NHS England spokesperson said: "NHS staff provided extraordinary care to the residents of Grenfell on the night of the fire and in the months afterwards, including extensive mental health care to help people manage the trauma of the disaster. "We have received the coroner's recommendations and will continue to work with the Grenfell community, other health organisations and the emergency services to make sure survivors, victims’ relatives and other residents continue to get the care they need." ASBESTOS UPDATE: ITT Inc. Has US$858.8MM Liability at June 30 ------------------------------------------------------------- ITT Inc. had an undiscounted asbestos-related liability of US$858.8 million as of June 30, 2018, for pending claims and unasserted claims estimated to be filed over the next 10 years, 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 states, "We record a liability for pending asbestos claims and asbestos claims estimated to be filed over the next 10 years. While it is probable that we will incur additional costs for future claims to be filed against the Company, a liability for potential future claims beyond the next 10 years is not reasonably estimable due to the variables and uncertainties inherent in the long-term projection of the Company's asbestos exposures and potential recoveries. As of June 30, 2018, we have recorded an undiscounted asbestos-related liability for pending claims and unasserted claims estimated to be filed over the next 10 years of US$858.8 million, including expected legal fees, and an associated asset of US$387.3 million which represents estimated recoveries from insurers, resulting in a net asbestos exposure of US$471.5 million. A full-text copy of the Form 10-Q is available at https://is.gd/wmpUdQ ASBESTOS UPDATE: ITT Units Had 25,000 Claims Pending at June 30 --------------------------------------------------------------- ITT Inc.'s subsidiaries had 25,000 pending asbestos-related claims at June 30, 2018, 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 states, "Subsidiaries of ITT, including ITT LLC and Goulds Pumps LLC, have been sued, along with many other companies in product liability lawsuits alleging personal injury due to asbestos exposure. These claims generally allege that certain products sold by our subsidiaries prior to 1985 contained a part manufactured by a third party (e.g., a gasket) which contained asbestos. To the extent these third-party parts may have contained asbestos, it was encapsulated in the gasket (or other) material and was non-friable. As of June 30, 2018, there were approximately 25 thousand pending claims against ITT subsidiaries, including Goulds Pumps LLC, filed in various state and federal courts alleging injury as a result of exposure to asbestos. "Frequently, plaintiffs are unable to identify any ITT LLC or Goulds Pumps LLC products as a source of asbestos exposure. Our experience to date is that a majority of resolved claims are dismissed without any payment from ITT subsidiaries. Management believes that a large majority of the pending claims have little or no value. In addition, because claims are sometimes dismissed in large groups, the average cost per resolved claim can fluctuate significantly from period to period. ITT expects more asbestos-related suits will be filed in the future, and ITT will continue to aggressively defend or seek a reasonable resolution, as appropriate. "Asbestos litigation is a unique form of litigation. Frequently, the plaintiff sues a large number of defendants and does not state a specific claim amount. After filing a complaint, the plaintiff engages defendants in settlement negotiations to establish a settlement value based on certain criteria, including the number of defendants in the case. Rarely do the plaintiffs seek to collect all damages from one defendant. Rather, they seek to spread the liability, and thus the payments, among many defendants. As a result of this and other factors, the Company is unable to estimate the maximum potential exposure to pending claims and claims estimated to be filed over the next 10 years." A full-text copy of the Form 10-Q is available at https://is.gd/wmpUdQ ASBESTOS UPDATE: MetLife Unit Had 1,754 New Cases Jan-June 2018 --------------------------------------------------------------- MetLife, Inc.'s subsidiary, Metropolitan Life Insurance Company, received approximately 1,754 new asbestos-related claims during the six months ended June 30, 2018, 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 states, "MLIC is and has been a defendant in a large number of asbestos-related suits filed primarily in state courts. These suits principally allege that the plaintiff or plaintiffs suffered personal injury resulting from exposure to asbestos and seek both actual and punitive damages. MLIC has never engaged in the business of manufacturing, producing, distributing, or selling asbestos or asbestos-containing products nor has MLIC issued liability or workers' compensation insurance to companies in the business of manufacturing, producing, distributing, or selling asbestos or asbestos-containing products. The lawsuits principally have focused on allegations with respect to certain research, publication and other activities of one or more of MLIC's employees during the period from the 1920's through approximately the 1950's and allege that MLIC learned or should have learned of certain health risks posed by asbestos and, among other things, improperly publicized or failed to disclose those health risks. MLIC believes that it should not have legal liability in these cases. The outcome of most asbestos litigation matters, however, is uncertain and can be impacted by numerous variables, including differences in legal rulings in various jurisdictions, the nature of the alleged injury and factors unrelated to the ultimate legal merit of the claims asserted against MLIC. MLIC employs a number of resolution strategies to manage its asbestos loss exposure, including seeking resolution of pending litigation by judicial rulings and settling individual or groups of claims or lawsuits under appropriate circumstances. "Claims asserted against MLIC have included negligence, intentional tort and conspiracy concerning the health risks associated with asbestos. MLIC's defenses (beyond denial of certain factual allegations) include that: (i) MLIC owed no duty to the plaintiffs-- it had no special relationship with the plaintiffs and did not manufacture, produce, distribute, or sell the asbestos products that allegedly injured plaintiffs; (ii) plaintiffs did not rely on any actions of MLIC; (iii) MLIC's conduct was not the cause of the plaintiffs' injuries; (iv) plaintiffs' exposure occurred after the dangers of asbestos were known; and (v) the applicable time with respect to filing suit has expired. During the course of the litigation, certain trial courts have granted motions dismissing claims against MLIC, while other trial courts have denied MLIC's motions. There can be no assurance that MLIC will receive favorable decisions on motions in the future. While most cases brought to date have settled, MLIC intends to continue to defend aggressively against claims based on asbestos exposure, including defending claims at trials. "As reported in the 2017 Annual Report, MLIC received approximately 3,514 asbestos-related claims in 2017. During the six months ended June 30, 2018 and 2017, MLIC received approximately 1,754 and 1,896 new asbestos-related claims, respectively. The number of asbestos cases that may be brought, the aggregate amount of any liability that MLIC may incur, and the total amount paid in settlements in any given year are uncertain and may vary significantly from year to year. "The ability of MLIC to estimate its ultimate asbestos exposure is subject to considerable uncertainty, and the conditions impacting its liability can be dynamic and subject to change. The availability of reliable data is limited and it is difficult to predict the numerous variables that can affect liability estimates, including the number of future claims, the cost to resolve claims, the disease mix and severity of disease in pending and future claims, the impact of the number of new claims filed in a particular jurisdiction and variations in the law in the jurisdictions in which claims are filed, the possible impact of tort reform efforts, the willingness of courts to allow plaintiffs to pursue claims against MLIC when exposure to asbestos took place after the dangers of asbestos exposure were well known, and the impact of any possible future adverse verdicts and their amounts. "The ability to make estimates regarding ultimate asbestos exposure declines significantly as the estimates relate to years further in the future. In the Company's judgment, there is a future point after which losses cease to be probable and reasonably estimable. It is reasonably possible that the Company's total exposure to asbestos claims may be materially greater than the asbestos liability currently accrued and that future charges to income may be necessary. While the potential future charges could be material in the particular quarterly or annual periods in which they are recorded, based on information currently known by management, management does not believe any such charges are likely to have a material effect on the Company's financial position. "The Company believes adequate provision has been made in its consolidated financial statements for all probable and reasonably estimable losses for asbestos-related claims. MLIC's recorded asbestos liability is based on its estimation of the following elements, as informed by the facts presently known to it, its understanding of current law and its past experiences: (i) the probable and reasonably estimable liability for asbestos claims already asserted against MLIC, including claims settled but not yet paid; (ii) the probable and reasonably estimable liability for asbestos claims not yet asserted against MLIC, but which MLIC believes are reasonably probable of assertion; and (iii) the legal defense costs associated with the foregoing claims. Significant assumptions underlying MLIC's analysis of the adequacy of its recorded liability with respect to asbestos litigation include: (i) the number of future claims; (ii) the cost to resolve claims; and (iii) the cost to defend claims. "MLIC reevaluates on a quarterly and annual basis its exposure from asbestos litigation, including studying its claims experience, reviewing external literature regarding asbestos claims experience in the United States, assessing relevant trends impacting asbestos liability and considering numerous variables that can affect its asbestos liability exposure on an overall or per claim basis. These variables include bankruptcies of other companies involved in asbestos litigation, legislative and judicial developments, the number of pending claims involving serious disease, the number of new claims filed against it and other defendants and the jurisdictions in which claims are pending. Based upon its regular reevaluation of its exposure from asbestos litigation, MLIC has updated its liability analysis for asbestos-related claims through June 30, 2018." A full-text copy of the Form 10-Q is available at https://bit.ly/2y5IIJ2 ASBESTOS UPDATE: Minerals Technologies Faces 25 Cases at July 1 --------------------------------------------------------------- Minerals Technologies Inc. has 25 pending asbestos cases, 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. Minerals Technologies states, "Certain of the Company's subsidiaries are among numerous defendants in a number of cases seeking damages for exposure to silica or to asbestos containing materials. The Company currently has three pending silica cases and 25 pending asbestos cases. To date, 1,493 silica cases and 54 asbestos cases have been dismissed, not including any lawsuits against AMCOL or American Colloid Company dismissed prior to our acquisition of AMCOL. Three new asbestos cases were filed during the second quarter of 2018. No asbestos case were dismissed during the second quarter. No silica cases were dismissed during the period. Most of these claims do not provide adequate information to assess their merits, the likelihood that the Company will be found liable, or the magnitude of such liability, if any. Additional claims of this nature may be made against the Company or its subsidiaries. At this time management anticipates that the amount of the Company's liability, if any, and the cost of defending such claims, will not have a material effect on its financial position or results of operations. "The Company has settled only one silica lawsuit, for a nominal amount, and no asbestos lawsuits to date (not including any that may have been settled by AMCOL prior to completion of the acquisition). We are unable to state an amount or range of amounts claimed in any of the lawsuits because state court pleading practices do not require identifying the amount of the claimed damage. The aggregate cost to the Company for the legal defense of these cases since inception continues to be insignificant. The majority of the costs of defense for these cases, excluding cases against AMCOL, are reimbursed by Pfizer Inc. pursuant to the terms of certain agreements entered into in connection with the Company's initial public offering in 1992. The Company is entitled to indemnification, pursuant to agreement, for sales prior to the initial public offering. Of the 25 pending asbestos cases, 19 of the non-AMCOL cases are subject to indemnification, in whole or in part, because the plaintiffs claim liability based on sales of products that occurred either entirely before the initial public offering, or both before and after the initial public offering. In three of the four remaining non-AMCOL cases, the plaintiffs have not alleged dates of exposure, and in the fourth remaining non-AMCOL case, exposure is alleged to have been after the Company's initial public offering in 1992. The remaining cases involve AMCOL only, so no Pfizer indemnity is available. Our experience has been that the Company is not liable to plaintiffs in any of these lawsuits and the Company does not expect to pay any settlements or jury verdicts in these lawsuits." A full-text copy of the Form 10-Q is available at https://is.gd/8HwR5V ASBESTOS UPDATE: Moore Couple Sues for Failure Warn Exposure ------------------------------------------------------------ Lhalie Castillo of Madison County Record reported that a couple recently filed a lawsuit against nearly two dozen companies over their alleged exposure to asbestos. Bobby K. Moore and Unav Moore filed a complaint on Sept. 5 in St. Clair County Circuit Court against several manufacturing companies, including Albany International Corporation, Cleaver-Brooks and IMO Industries Inc. According to the complaint, Bobby Moore inhaled or ingested asbestos fibers while working as a factory worker from 1953 to 1995. In addition, Bobby Moore believes he was secondarily exposed by his wife, Unav Moore, who worked as a secretary in a paper factory. In October 2017, he was diagnosed with a type of lung cancer consistent with asbestos exposure, the complaint states. The plaintiffs allege the companies negligently included asbestos in their products and did not warn him about the toxic effects. The plaintiffs request a trial by jury and seek compensatory and punitive damages of more than $50,000 and any further relief that the court sees fit to award. They are represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 18-L-582 ASBESTOS UPDATE: More Asbestos Found in Minnie Water ---------------------------------------------------- Grafton Daily Examiner reported that a remedial action Plan is being developed to manage the unexpected discovery of fragments of asbestos-containing materials on the Minnie Water foreshore. Clarence Valley Council works and civil director Troy Anderson said that since the council was notified of the fragments a certified and qualified staff member had been doing weekly "emu picks" of exposed asbestos-containing materials. It is believed the fragments of fibrous cement sheeting (fibro) were from dwellings that were previously located on the beach reserve. Mr Anderson said the initial advice from an independent consultant was that any risk could be managed by continuing to undertake weekly inspections and removing any material found. "This has been occurring and will continue to occur. Smaller amounts are being found at each inspection," he said. "We have engaged consultants to do further assessment and once their report is received we will advise the community of further treatment options." Mr Anderson also countered claims in media reports last week the council was unresponsive when notified of the possibility of asbestos-containing materials on site. "That is not the case," he said. "We treat asbestos contamination seriously and urgently. "We got a phone call from a resident suggesting asbestos might have been exposed, but it wasn't clear from that call where she was referring to. Relevant staff tried to call her back to get further details but there was no response. "As soon as we got further details we sent a qualified asbestos assessor to have a look. He found three sites where he believed there were former building products containing ACMs (asbestos-containing materials). We then engaged an independent assessor and fenced off areas where ACMs were found. "Closer inspection found traces at a fourth site and barrier fencing has been installed around it as well. "There has been and will be no mowing or maintenance of the site until remediation is complete or we have ACM clearance for the site. "Public safety is the number one priority and council is evaluating the most suitable remediation options." Mr Anderson said the EPA had been notified of the find. ASBESTOS UPDATE: Nelson Man Dies of Asbestosis ---------------------------------------------- Sophie-May Clarke of Lancashire Telegraph reported that Herbert Gribble, from Nelson, was responsible for the running and making of boilers, a job which often meant he had to climb inside the vessels which were thought to be lined with asbestos. He worked at various mill sites throughout Nelson during the 60s his daughter said, making it difficult to pin down where or when he had been exposed to the lethal mineral. An inquest was launched into the death of Mr Dribble after he died at the Royal Blackburn Hospital in February of this year, where he had been admitted for shortness of breath. At the time he was treated for an infection which initially improved, but doctors then believed the pensioner contracted pneumonia. Despite treatment by a team of doctors, the father-of-five died on February 23. At the time of his death his treating doctor believed that while his cause of death may well have been pneumonia, there was evidence to believe that asbestosis could have been a contributing factor. A CT scan which took place in 2013 revealed plural plaques were found in his body and this combined with his history of exposure to asbestos during his working life meant the doctor could not rule out the affects the asbestos may have had on his body. Because of these factors a post mortem was authorised and an Inquest was opened. A statement from Mr Gribble's daughter, Yvonne Mcnamara, read: "He had a history of working at various mill in the Nelson Area as a boiler man, responsible for running and making different boilers. "He was a smoker, but hadn't been since 1976. In the past when we spoke about why his chest was bad he thought it may have been down to his smoking, but also due to the fact he used to have to climb inside of boilers to clean and maintain them." The inquest also heard how Mr Gribble had worked in a number of locations as part of a team which removed old boilers and installed new ones. The older versions would have been lined with asbestos, it is believed. A post mortem examination was carried out at the Royal Blackburn Hospital by Dr Al-Mudhaffer, who offered a medical cause of death as bronchopneumonia. But due to a chest X-ray which revealed inflammation to the chest and given the CT finding, Dr Al-Mudhaffer could not rule out asbestosis and consequently said: "In my examination, asbestos bodies were identified, which would indicate asbestosis." Residing that asbestosis would have been a contributing factor to his death, Coroner Richard Taylor said: "It appears as though it is not clear when or where during his working life he was exposed to asbestos, but there is no doubt on balance that he was, given his working history and the finding of the CT scan. "Herbert Gribble died on the 23 February 2018. He was exposed to asbestos during his working life, but when or where that occurred cannot be more clearly ascertained." ASBESTOS UPDATE: NL Industries Still Defends 110 Cases at June 30 ----------------------------------------------------------------- NL Industries, Inc. continues to face 110 asbestos-related cases, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2018. The Company states, "We have been named as a defendant in various lawsuits in several jurisdictions, alleging personal injuries as a result of occupational exposure primarily to products manufactured by our former operations containing asbestos, silica and/or mixed dust. In addition, some plaintiffs allege exposure to asbestos from working in various facilities previously owned and/or operated by us. There are 110 of these types of cases pending, involving a total of approximately 583 plaintiffs. In addition, the claims of approximately 8,676 plaintiffs have been administratively dismissed or placed on the inactive docket in Ohio state court. We do not expect these claims will be re-opened unless the plaintiffs meet the courts' medical criteria for asbestos-related claims. We have not accrued any amounts for this litigation because of the uncertainty of liability and inability to reasonably estimate the liability, if any. To date, we have not been adjudicated liable in any of these matters. "Based on information available to us, including facts concerning historical operations the rate of new claims, the number of claims from which we have been dismissed, and our prior experience in the defense of these matters, we believe that the range of reasonably possible outcomes of these matters will be consistent with our historical costs (which are not material). Furthermore, we do not expect any reasonably possible outcome would involve amounts material to our consolidated financial position, results of operations or liquidity. We have sought and will continue to vigorously seek, dismissal and/or a finding of no liability from each claim. In addition, from time to time, we have received notices regarding asbestos or silica claims purporting to be brought against former subsidiaries, including notices provided to insurers with which we have entered into settlements extinguishing certain insurance policies. These insurers may seek indemnification from us. "In addition to the litigation, we and our affiliates are also involved in various other environmental, contractual, product liability, patent (or intellectual property), employment and other claims and disputes incidental to present and former businesses. In certain cases, we have insurance coverage for these items, although we do not expect additional material insurance coverage for environmental matters. "We currently believe the disposition of all of these various other claims and disputes, individually and in the aggregate, should not have a material adverse effect on our consolidated financial position, results of operations or liquidity beyond the accruals already provided." A full-text copy of the Form 10-Q is available at https://bit.ly/2xRzi4e ASBESTOS UPDATE: Parsons Class Lawsuit vs. Liggett Still Stayed --------------------------------------------------------------- Vector Group Ltd. 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 Liggett Group LLC is still a defendant in the asbestos-related class action case Parsons v. AC & S Inc., which is currently stayed. The Company states, "In February 1998, in Parsons v. AC & S Inc., a purported class action was commenced on behalf of all West Virginia residents who allegedly have personal injury claims arising from exposure to cigarette smoke and asbestos fibers. The complaint seeks to recover US$1,000,000 in compensatory and punitive damages individually and unspecified compensatory and punitive damages for the class. The case is stayed due to the December 2000 bankruptcy of three of the defendants." A full-text copy of the Form 10-Q is available at https://bit.ly/2RjhDLe ASBESTOS UPDATE: Richards' Bid to Supplement Expert Report Denied ----------------------------------------------------------------- The Hon. Ferris W. Wharton of the Superior Court of Delaware has denied Craig Charles Richards and Gloria Jeanne Richards' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument in the case styled In Re: Asbestos Litigation. Limited to: Craig Charles Richards and Gloria Jeanne Richards, his wife Plaintiffs, v. Copes-Vulcan, Inc., The Fairbanks Company, Ford Motor Company, and The Goodyear Tire & Rubber Company, et al., Defendants, C.A. No. N16C-04-206 ASB, (Del.). On June 16, 2017, Plaintiffs served Dr. Mark Ginsberg's initial report on Defendants. Dr. Ginsberg's conclusion, applicable to all defendants, was that: "Mr. Richard's cumulative exposure to asbestos was a substantial contributing cause of his malignant mesothelioma. It is my further opinion, to a reasonable degree of medical certainty, that the cumulative exposure from each company's asbestos product or products was a substantial contributing factor in the development of Mr. Richardson's malignant mesothelioma. Each such product for which exposure can be shown was a cause of said disease." On February 8, 2018, the Supreme Court of Ohio released its opinion in Schwartz v. Honeywell. In Schwartz, the Court held that cumulative exposure causation was incompatible with Ohio statutory law, which requires an individualized determination for each defendant. The Court also found other problems with cumulative exposure causation beyond its incompatibility with Ohio's statutory scheme. Because the Court found that Dr. Ginsberg's cumulative exposure causation opinion would not pass muster under Ohio law, it granted the defendants summary judgment. On July 10, 2018, the Court granted summary judgment in favor of all four defendants. In each instance, the Court based its decision on the recent opinion of the Ohio Supreme Court in Schwartz v. Honeywell, in which the Ohio held that the theory of causation predicated on cumulative exposure, such as advanced by Plaintiffs' expert Dr. Ginsberg, was insufficient to establish substantial factor causation under Ohio law. Plaintiffs' sought and were granted an opportunity to seek leave for Dr. Ginsberg to submit a supplemental report. In their Motion, Plaintiffs attach a supplemental report from Dr. Ginsberg dated July 18, 2018. In his supplemental report, Dr. Ginsberg concludes that Mr. Richards' exposures to each defendant's products "were sufficient to constitute a substantial factor in causing his mesothelioma." In support of its excusable good cause/excusable neglect argument, Plaintiffs argue that: 1) they submitted their expert report eight months before Schwartz was decided; 2) there were only 22 days between the issuance of Schwartz and the due date for expert reports; and 3) the substantive law of Ohio had not been ordered as controlling on the date Plaintiffs' expert reports were due. The Court finds no particular significance of the fact that Plaintiffs produced their expert report eight months before the due date. What is significant is how much time they had to produce a supplemental report after the decision in Schwartz. It is true that there were only 22 days between the issuance of Schwartz and the deadline for the submission of expert reports. But, it took Plaintiffs only eight days to produce a supplemental report from Dr. Ginsberg. Obviously, Plaintiffs could have produced a supplemental report before the expiration of the expert report deadline if they had undertaken to do so immediately following the release of Schwartz. The Court explains that the real problem for Plaintiffs is that they never sought leave for Dr. Ginsberg to supplement his report until after the Court had entered summary judgment against them. The Court notes that Plaintiffs did not seek leave to submit a supplemental report in the 81 days between the expiration of the expert report deadline and the service of the summary judgment motions of Ford Motor and Copes-Vulcan nor did they seek leave in the 105 days between the publication of Schwartz and their filing of their oppositions to the summary judgment motions of Ford Motor and Copes-Vulcan, despite addressing Schwartz in both responses, or in the 153 days until oral argument on the motions. Further, the fact that Ohio substantive law was not ordered controlling until after the expert deadline is of no significance. Plaintiffs designated Ohio law as controlling in their complaint, and they have not suggested that there was any other state whose substantive law realistically might apply. In short, Plaintiffs always knew Ohio substantive law would apply. The date of the Court's Order confirming that fact is of no help to them. By failing to seek leave to supplement their expert report until after summary judgment was entered against them, the Court finds that Plaintiffs have not demonstrated good cause/excusable neglect to warrant granting them leave to submit Dr. Ginsberg's supplemental report or to grant them reargument. A copy of the Order dated August 8, 2018, is available at https://tinyurl.com/ybhog2c9 from Leagle.com. Bartholomew J. Dalton, Esq. -- bdalton@bdaltonlaw.com -- Ipek K. Medford, Esq. -- imedford@bdaltonlaw.com -- Andrew C. Dalton, Esq. -- adalton@bdaltonlaw.com -- Michael C. Dalton, Esq. -- mdalton@bdaltonlaw.com -- Dalton & Associates, Cool Spring Meeting House, 1106 West Tenth Street, Wilmington, Delaware 19086; Adam Balick, Esq. -- abalick@balick.com -- Michael Collins Smith, Esq. -- msmith@balick.com -- Patrick Smith, Esq. -- psmith@balick.com -- Balick & Balick, LLC, 711 King Street, Wilmington, Delaware 19801, Attorneys for Plaintiffs Craig Charles Richards and Gloria Jeanne Richards, his wife; Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, of counsel. Paul A. Bradley, Esq. -- PAB@maronmarvel.com -- Antoinette D. Hubbard, Esq. -- ADH@maronmarvel.com -- Maron Marvel Bradley Anderson & Tardy LLC, 1201 North Market Street, Suite 900, Wilmington, Delaware 19801, Attorneys for Defendant Copes-Vulcan, Inc. Timothy A. Sullivan, III, Esq. -- tsullivan@wlbdeflaw.com -- Wilbraham, Lawler & Buba, 919 N. Market Street, Suite 980, Wilmington, Delaware 19801, Attorneys for The Fairbanks Company. Christian J. Singewald, Esq. -- singewaldc@whiteandwilliams.com -- Rochelle L. Gumapac, Esq. -- gumapacr@whiteandwilliams.com -- White and Williams LLP, Courthouse Square, 600 N. King Street, Suite 800, Wilmington, Delaware 19801, Attorneys for Ford Motor Company. Jason A. Cincilla, Esq. -- jcincilla@mgmlaw.com -- Amaryah K. Bocchino, Esq. -- abocchino@mgmlaw.com -- Ryan Browning, Esq. -- rbrowning@mgmlaw.com -- Paul S. Seward, Esq. -- pseward@mgmlaw.com -- Manning Gross + Massenburg, 1007 N. Orange Street, 10th Floor, Wilmington, Delaware 19801, Attorneys for The Goodyear Tire & Rubber Company. ASBESTOS UPDATE: Roper Tech, Units Still Defend Suits at June 30 ---------------------------------------------------------------- Roper Technologies, Inc. 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 subsidiaries have been named defendants along with numerous industrial companies in asbestos-related litigation claims in certain U.S. states. The Company states, "No significant resources have been required by Roper to respond to these cases and Roper believes it has valid defenses to such claims and, if required, intends to defend them vigorously. Given the state of these claims, it is not possible to determine the potential liability, if any." A full-text copy of the Form 10-Q is available at https://is.gd/FR8Qey ASBESTOS UPDATE: Sempra Energy Units Still Face Suits at June 30 ---------------------------------------------------------------- Sempra Energy's units are still defending themselves in asbestos-related lawsuits and claims, 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 March 9, 2018, Sempra Energy completed the merger of Energy Future Holdings Corp. (renamed Sempra Texas Holdings Corp.) (EFH) with an indirect subsidiary of Sempra Energy, with EFH continuing as the surviving company and as an indirect, wholly owned subsidiary of Sempra Energy. The Company states, "Certain EFH subsidiaries that we acquired as part of the Merger are defendants in approximately 115 personal injury lawsuits brought in state courts throughout the U.S. These cases allege illness or death as a result of exposure to asbestos in power plants designed and/or built by companies whose assets were purchased by predecessor entities to the EFH subsidiaries, and generally assert claims for product defects, negligence, strict liability and wrongful death. They seek compensatory and punitive damages. Additionally, in connection with the EFH bankruptcy proceeding, approximately 28,000 proofs of claim were filed on behalf of persons who allege exposure to asbestos under similar circumstances and assert the right to file such lawsuits in the future. We anticipate additional lawsuits will be filed. None of these claims or lawsuits were discharged in the EFH bankruptcy proceeding." A full-text copy of the Form 10-Q is available at https://is.gd/90jl7G ASBESTOS UPDATE: SPX Had $615.3MM Asbestos Liability at June 30 --------------------------------------------------------------- SPX Corporation recorded US$615.3 million for asbestos product liability matters at June 30, 2018, 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 states, "Numerous claims, complaints and proceedings arising in the ordinary course of business have been asserted or are pending against us or certain of our subsidiaries (collectively, "claims"). These claims relate to litigation matters (e.g., class actions and contracts, intellectual property, and competitive claims), environmental matters, product liability matters (predominately associated with alleged exposure to asbestos-containing materials), and other risk management matters (e.g., general liability, automobile, and workers' compensation claims). Additionally, we may become subject to other claims of which we are currently unaware, which may be significant, or the claims of which we are aware may result in our incurring significantly greater loss than we anticipate. While we (and our subsidiaries) maintain property, cargo, auto, product, general liability, environmental, and directors' and officers' liability insurance and have acquired rights under similar policies in connection with acquisitions that we believe cover a significant portion of these claims, this insurance may be insufficient or unavailable (e.g., in the case of insurer insolvency) to protect us against potential loss exposures. Also, while we believe we are entitled to indemnification from third parties for some of these claims, these rights may be insufficient or unavailable to protect us against potential loss exposures. "Our recorded liabilities related to these matters totaled US$658.7 million (including US$615.3 million for asbestos product liability matters) and US$685.7 million (including US$641.2 million for asbestos product liability matters) at June 30, 2018 and December 31, 2017, respectively. Of these amounts, US$627.7 million and US$651.6 million are included in "Other long-term liabilities" within our condensed consolidated balance sheets at June 30, 2018 and December 31, 2017, respectively, with the remainder included in "Accrued expenses." The liabilities we record for these claims are based on a number of assumptions, including historical claims and payment experience and, with respect to asbestos claims, actuarial estimates of the future period during which additional claims are reasonably foreseeable. While we base our assumptions on facts currently known to us, they entail inherently subjective judgments and uncertainties. As a result, our current assumptions for estimating these liabilities may not prove accurate, and we may be required to adjust these liabilities in the future, which could result in charges to earnings. These variances relative to current expectations could have a material impact on our financial position and results of operations. "We have recorded insurance recovery assets associated with the asbestos product liability matters, with such amounts totaling US$571.5 million and US$590.9 million at June 30, 2018 and December 31, 2017, respectively, and included in "Other assets" within our condensed consolidated balance sheets. These assets represent amounts that we believe we are or will be entitled to recover under agreements we have with insurance companies. The assets we record for these insurance recoveries are based on a number of assumptions, including the continued solvency of the insurers, and are subject to a variety of uncertainties. Our current assumptions for estimating these assets may not prove accurate, and we may be required to adjust these assets in the future, which could result in additional charges to earnings. These variances relative to current expectations could have a material impact on our financial position and results of operations." A full-text copy of the Form 10-Q is available at https://is.gd/isaEAw ASBESTOS UPDATE: Steel Partners Unit Has 50 Claims at June 30 ------------------------------------------------------------- A unit of Steel Partners Holdings L.P. has approximately 50 pending asbestos claims as of June 30, 2018, 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 states, "A subsidiary of BNS Holdings Liquidating Trust ("BNS Sub") has been named as a defendant in approximately 1,390 alleged asbestos-related toxic-tort claims as of June 30, 2018. The claims were filed over a period beginning in 1994 through June 30, 2018. In many cases these claims involved more than 100 defendants. Of the claims filed, approximately 1,340 were dismissed, settled or granted summary judgment and closed as of June 30, 2018. Of the claims settled, the average settlement was less than US$3. There remained approximately 50 pending asbestos claims as of June 30, 2018. There can be no assurance that the number of future claims and the related costs of defense, settlements or judgments will be consistent with the experience to-date of existing claims. "BNS Sub has insurance policies covering asbestos-related claims for years beginning 1974 through 1988 with estimated aggregate coverage limits of US$183,000,000, with US$1,543,000 at both June 30, 2018 and December 31, 2017 in estimated remaining self-insurance retention (deductible). There is secondary evidence of coverage from 1970 to 1973, although there is no assurance that the insurers will recognize that the coverage was in place. Policies issued for BNS Sub beginning in 1989 contained exclusions related to asbestos. Under certain circumstances, some of the settled claims may be reopened. Also, there may be a significant delay in receipt of notification by BNS Sub of the entry of a dismissal or settlement of a claim or the filing of a new claim. BNS Sub believes it has significant defenses to any liability for toxic-tort claims on the merits. None of these toxic-tort claims has gone to trial and, therefore, there can be no assurance that these defenses will prevail." A full-text copy of the Form 10-Q is available at https://bit.ly/2y7GHvS ASBESTOS UPDATE: Summary Judgment vs. Mohn Affirmed on Appeal ------------------------------------------------------------- In the appealed case Mary Ellen Mohn, Individually and as Personal Representative on Behalf of the Estate of Thomas L. Mohn, Plaintiff-Appellant, v. CBS Corporation and Dairyland Power Cooperative, Defendants, Sprinkmann Sons Corporation, Defendant-Respondent, Appeal No. 2017AP861, (Wis. Ct. App.), Mary Ellen Mohn appeals the trial court's decision granting summary judgment in favor of Sprinkmann Sons Corporation on the grounds that Mohn's claims against Sprinkmann were barred pursuant to the construction statute of repose. Mohn argues that the protections of the statute of repose do not extend to Sprinkmann. Additionally, Mohn raises constitutional challenges to the statute of repose, asserting that it violates the right to remedy clause of the Wisconsin Constitution as well as equal protection rights. This lawsuit stems from Mohn's claim that Mr. Mohn was exposed to asbestos while working at construction sites between 1960 and 1980. He was diagnosed with malignant lung cancer in February 2009 and died in April 2009. Mohn then filed this action in February 2012 against numerous manufacturers and suppliers of asbestos products that were involved in construction projects where Mr. Mohn worked. Sprinkmann filed a motion for summary judgment, heard in November 2015, asserting that Mohn's claims against it were barred by the construction statute of repose. The statute provides that after ten years following the substantial completion of improvements to real property, no cause of action may accrue against "any person involved" in those improvements for injuries arising out of any defect related to the construction of those improvements. Wis. Stat. Section 893.89(2). However, this bar does not include actions against "manufacturers or producers" of defective materials. In its motion, Sprinkmann asserted that it is covered by the protections afforded by the statute because its involvement in the construction of the power plant was limited to furnishing defective materials -- the asbestos-containing turbine blankets -- not manufacturing the materials. Furthermore, Sprinkmann asserted that Mohn's claim was made outside of the ten year exposure period established by the statute, in that the power plant had been completed by the late 1960s. The trial court initially denied Sprinkmann's motion but Sprinkmann filed a motion for reconsideration. Prior to the trial court issuing its ruling on the motion for reconsideration, the parties entered into a stipulation of certain facts related to the motion. Included in that stipulation were the following facts: (1) The original construction of the nuclear power plant in Genoa, as well as the construction of the turbine-generator unit, were improvements to real property; (2) This construction occurred during the mid-to-late-1960s; (3) Sprinkmann furnished materials, including the insulated turbine blankets that allegedly contained asbestos, during the original construction of the power plant; (4) There is no evidence that Sprinkmann performed any work on the improvements during the original construction of the power plant, nor any subsequent repair work on that project; and (4) There is no evidence that Sprinkmann supplied any insulation products to the power plant after 1969. Upon reconsideration, the trial court identified that it had made an error of law in denying Sprinkmann's summary judgment motion. Ultimately, relying on Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis.2d 1, 698 N.W.2d 794, as well as the stipulation of the parties, the trial court found that the statute did apply to protect Sprinkmann from liability: (a) the turbines constructed at the power plant were improvements to real property; (b) Sprinkmann had been involved only in furnishing the defective materials -- turbine blankets containing asbestos -- with regard to the improvements; and (c) that Mohn's claim had been filed after the ten year period following the completion of the improvements. Therefore, the trial court found that Sprinkmann met the requirements of Wis. Stat. Section 893.89(2). As a result, the court granted summary judgment in Sprinkmann's favor. This appeal follows. The Court of Appeals of Wisconsin affirms the trial court's decision finding that the trial court did not err in granting summary judgment in favor of Sprinkmann on the grounds that the statute of repose bars Mohn's claims against Sprinkmann. Mohn argues that the circumstances surrounding Sprinkmann's involvement in the construction of the power plant do not meet all of the requirements for protection under the statute of repose, and thus the trial court erred in granting Sprinkmann's motion for summary judgment. The Court explains that the statute of repose imposes a time limit, referred to as the "exposure period," for bringing claims related to the improvement of real property. The exposure period runs for ten years after "the date of substantial completion" of the improvements. Accordingly, claims for injuries to person or property cannot be made against anyone involved in the construction of the improvements for any defect or deficiency related to the construction after the end of the exposure period. The statute specifically includes in this protection those involved in the "furnishing of materials for" the construction of improvements. However, the Court also points out to specific exceptions to the protections of the statute. For example, the owner of the property where the improvements were made can be held liable if the claim is based on the owner's negligence in maintaining the property. Additionally, manufacturers or producers of defective materials used in the construction of the improvements are not afforded protection under the statute. In other words, the statute "protects all persons involved in the improvement to real property but does not protect individuals whose liability arises based on conduct occurring prior to or subsequent to the improvement." In this case, the Court recognizes that the parties stipulated to facts that trigger the protections of the statute of repose: Sprinkmann's role in the construction of the improvements at the power plant was to furnish materials used during construction which have been deemed to be defective (i.e., containing asbestos). Additionally, the parties agreed that construction of the power plant was substantially completed in the late 1960s, and thus Mohn's lawsuit was filed well after the end of the ten-year exposure period set forth in the statute. Indeed, Sprinkmann's role in the power plant construction fits squarely into the protections afforded by the statute of repose. On appeal, Mohn does not dispute these stipulated facts, nor does Mohn argue that there are other reasonable inferences that may be drawn from them. Instead, Mohn argues that the protections of the statute of repose do not apply to Sprinkmann because its act of furnishing the insulation was not in and of itself defective; rather, the insulation it supplied was defective. Thus, under this interpretation of the statute, Mohn contends that Sprinkmann does not meet the requirements for protection under the statute. The Court rejects Mohn's interpretation. The Court refers to Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis.2d 1, 698 N.W.2d 794, where the court pointed out that the legislature conveyed its intent behind this statute in the distinctions it set between those who are protected against long-term liability and those who are not protected: anyone involved in the actual construction of improvements is protected from long-term liability, while those whose liability arises from conduct before construction (such as manufacturers of defective materials used for the improvements), or after construction. The Kohn court opined that the reasoning behind this distinction is that persons involved in construction have limited involvement in the improvements and thus should have limited liability. In contrast, the owner of property improvements has a continuing duty to maintain those improvements, and a manufacturer of materials used in construction continues to have the duty and ability to change a defective design. Thus, this distinction advances the purpose of the statute. Moreover, the Court explains that the statute plainly states that those who simply furnish materials to a construction project are protected from long-term liability, which comports with the legislature's intention. Based on the stipulation entered into by Mohn and Sprinkmann, Sprinkmann's sole role in the power plant construction project was to furnish materials to the contractors. Therefore, the Court resolves that the statute of repose is applicable to protect Sprinkmann against claims made outside of the exposure period. Mohn's claim against Sprinkmann was filed outside of that time frame and, as a result, is barred. Accordingly, the Court affirms the trial court's determination that the statute of repose bars Mohn's claims against Sprinkmann. As an alternative argument, Mohn asserts that the statute of repose is unconstitutional as applied to asbestos-related claims. Mohn first argues that the right to remedy clause of the Wisconsin Constitution is violated when the statute is applied to take away the rights of an individual with injuries due to asbestos exposure before those injuries have manifested. In contrast, Sprinkmann argues that the legislature had the opportunity to include exclusion in the statute for latent diseases, but did not. Sprinkmann points out that the court in Kohn addressed the same constitutional arguments as those presented by Mohn, and upheld the constitutionality of the statute. In fact, the Kohn court specifically stated that the statute of repose does not violate the right to remedy clause because "a statute of repose does not merely extinguish a party's remedy, it extinguishes the right of recovery altogether" and thus "any right of recovery is extinguished at the end of the repose period and the right for which the litigant seeks a remedy no longer exists." The Kohn court also recognized that the statute of repose is a "policy choice" made by the legislature "to which we must defer." Furthermore, the court in Kohn determined that the statute of repose does not violate the equal protection clause, as the distinctions it draws among those groups it affects serve a "legitimate governmental interest." Moreover, as pointed out by Sprinkmann, it is the role of the legislature -- not the judiciary -- to carve out statutory exceptions for latent diseases such as asbestos-related illnesses, and the legislature has chosen not to do so. A copy of the Per Curiam dated August 7, 2018, is available at https://tinyurl.com/ya9fm3yf from Leagle.com. Robert G. McCoy , for Mary Ellen Mohn, Plaintiff-Appellant. Roshan N. Rajkumar -- roshan.rajkumar@bowmanandbrooke.com -- for CBS Corporation, Defendant. James A. Niquet -- jniquet@crivellocarlson.com -- for Dairyland Power Cooperative, Defendant. James A. Niquet -- jniquet@crivellocarlson.com -- Noelle C. Muceno -- nmuceno@crivellocarlson.com -- Travis J. Rhoades -- trhoades@crivellocarlson.com -- for Sprinkmann Sons Corporation, Defendant-Respondent. ASBESTOS UPDATE: Tenneco Faces Less Than 500 Cases at June 30 ------------------------------------------------------------- Tenneco Inc. continues to face less than 500 active and inactive cases by claimants alleging health problems as a result of exposure to asbestos, 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 states, "For many years we have been and continue to be subject to lawsuits initiated by claimants alleging health problems as a result of exposure to asbestos. Our current docket of active and inactive cases is less than 500 cases nationwide. A small number of claims have been asserted against one of our subsidiaries by railroad workers alleging exposure to asbestos products in railroad cars. The substantial majority of the remaining claims are related to alleged exposure to asbestos in our automotive products although a significant number of those claims appear also to involve occupational exposures sustained in industries other than automotive. "We believe, based on scientific and other evidence, it is unlikely that claimants were exposed to asbestos by our former products and that, in any event, they would not be at increased risk of asbestos-related disease based on their work with these products. Further, many of these cases involve numerous defendants, with the number in some cases exceeding 100 defendants from a variety of industries. Additionally, in many cases the plaintiffs either do not specify any, or specify the jurisdictional minimum, dollar amount for damages. "As major asbestos manufacturers and/or users continue to go out of business or file for bankruptcy, we may experience an increased number of these claims. We vigorously defend ourselves against these claims as part of our ordinary course of business. "In future periods, we could be subject to cash costs or charges to earnings if any of these matters are resolved unfavorably to us. To date, with respect to claims that have proceeded sufficiently through the judicial process, we have regularly achieved favorable resolutions. Accordingly, we presently believe that these asbestos-related claims will not have a material adverse impact on our future consolidated financial position, results of operations or liquidity." A full-text copy of the Form 10-Q is available at https://bit.ly/2P352tT ASBESTOS UPDATE: Thomas-Fish Claims vs. Delaware Defendants Severed ------------------------------------------------------------------- The Hon. Renee Marie Bumb of the United States District Court for the District of New Jersey has issued a memorandum opinion and order severing the claims against the Delaware Defendants Avborne Accessory Group, Inc.; Dover Corporation; Dover Engineered Systems, Inc.; RBC Bearings, Incorporated; Sargent Aerospace & Defense, LLC; Sargent Industries, Inc.; RBC Sargent Airtomic; and Roller Bearing Company Of America, Inc. and transferring those claims to the United States District Court for the District of Delaware, pursuant to 28 U.S.C. Section 1404(a). This matter comes before the Court upon the Court's Order to Show Cause why the case entitled Helen Thomas-Fish, Plaintiff, v. Aetna Steel Products Corp., et al., Defendants, Civil No. 17-10648 (RMB/KMW), (D.N.J.) should not be transferred to the District of Delaware or another more convenient District, and Defendants' Motion to Transfer this case to the District of Delaware, filed in response to the Court's Order to Show Cause. Plaintiff opposes transfer primarily arguing that transfer is "not possible" because two of the ten Defendants to this suit (excluding the "John Doe" Defendants) -- Sonic Industries, Inc./RBC Sonic and Aetna Steel Products Corporation -- might not be subject to personal jurisdiction in Delaware. However, Defendants respond, and the Court agrees, that severing Sonic and Aetna Steel is a viable option, thereby allowing the transfer of the claims against the other eight Defendants to the District of Delaware. The Court points out to the case of D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 110 (3d Cir. 2009) in applying 28 U.S.C. Section 1404(a), where the court have held that "where a case could have been brought against some defendants in the transferee district, the claims against those defendants may be severed [pursuant to Fed. R. Civ. P. 21] and transferred while the claims against the remaining defendants, for whom transfer would not be proper, are retained." Moreover, severing and transferring the claims against the eight Delaware Defendants furthers interests of judicial economy because transfer will moot those Defendants' argument that the District of New Jersey lacks personal jurisdiction over them. This outcome undermines Plaintiff's assertion that severance will be "inefficient." As the Court observed previously, venue in this District is based upon the tenuous connection that "the alleged asbestos exposure allegedly occurred on a U.S. government-owned ship docked in Camden, New Jersey during 1960," almost 60 years ago. On the other hand, the connection to Delaware is much clearer. Plaintiff does not dispute Defendants' assertion that seven of the nine physicians who treated the decedent have Delaware addresses, whereas none have New Jersey addresses. In addition, Plaintiff emphasizes that the decedent lived and worked in New Jersey in 1960 -- almost 60 years ago -- when the alleged exposure occurred over the course of a single year. However, in the Court's view, the more pertinent inquiry is Plaintiff's location when this suit was filed. Plaintiff's residence, not decedent's residence when his claim allegedly arose so long ago, is more pertinent to each forum's interests in adjudicating controversies local to it. That is, Plaintiff's status as a Delaware resident who is bringing suit against Delaware Defendants renders this case of most concern to Delaware, and therefore outweighs Plaintiff's forum choice of New Jersey. In the meantime, the Court will hold a telephonic pre-motion conference concerning RBC Sonic/Sonic Industries, Inc.'s proposed motion to dismiss the remaining claims against RBC Sonic/Sonic Industries, Inc., and Aetna Steel Products Corporation for lack of personal jurisdiction. A copy of the Memorandum Opinion and Order dated August 7, 2018, is available at https://tinyurl.com/yc6vhurg from Leagle.com. Helen Thomas-Fish, individually and as Executrix of the Estate of Robert C. Fish, Plaintiff, represented by Amber Rose Long , Levy Konigsberg, LLP & Joseph J. Mandia , Levy Konigsberg LLP. RBC Sonic, Defendant, represented by William D. Sanders -- wsanders@mklaw.us.com -- McGivney, Kluger & Cook, P.C.. ASBESTOS UPDATE: WestRock Co. Had 725 PI Suits at June 30 --------------------------------------------------------- WestRock Company is facing approximately 725 asbestos-related personal injury lawsuits as of June 30, 2018, 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 states, "We have been named a defendant in asbestos-related personal injury litigation. To date, the costs resulting from the litigation, including settlement costs, have not been significant. As of June 30, 2018, there were approximately 725 lawsuits. We believe that we have substantial insurance coverage, subject to applicable deductibles and policy limits, with respect to asbestos claims. "We have valid defenses to these asbestos-related personal injury claims and intend to continue to defend them vigorously. Should the volume of litigation grow substantially, it is possible that we could incur significant costs resolving these cases. We do not expect the resolution of pending asbestos litigation and proceedings to have a material adverse effect on our consolidated financial condition or liquidity. In any given period or periods, however, it is possible such proceedings or matters could have a material adverse effect on our results of operations, financial condition or cash flows." A full-text copy of the Form 10-Q is available at https://is.gd/KiwtDk ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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