/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181016.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 16, 2018, Vol. 20, No. 207 Headlines A10 NETWORKS: Eric Blackwell Appointed Lead Plaintiff ABBVIE INC: Pippins Sues over Share Price Drop ACARA SOLUTIONS: Sent Unsolicited SMS Ads to Gerrard's Phone AMERICAN BANK: Judge Confirms Ruling in Wage Class Action AMN HEALTHCARE: White Sues over Credit and Background Reports AMP: Clyde & Co Attorneys Discuss Shareholder Class Actions ANSOFONE CONTACT CENTERS: Brown Suit to Recover Unpaid Overtime ARCHSTONE-SMITH OPERATING: Court Affirms $479K Taxation Costs ARIZONA: Bid to File Deposition Testimony in Darjee Denied ATLANTIC COLLECTION: Ryan Files FDCPA Suit in Massachusetts AUDI: Faces Class Action Over Defective Vehicle Coolant Pumps AVEO: Investors Still Wary Following Class Action Threats BRITISH AIRWAYS: Faces GBP50MM Class Action Over Data Breach BUTCH'S RAT: Partial Summary Judgment Bid in Labor Suit Denied CANADA: Federal Court Confirms Legal Fees in '60s Scoop Case CANADA: Ottawa Settles Class Action Over EI Sickness Benefits CANADA: Proposes $100MM Settlement in Veterans' Class-Action CANADA: Quebec Sued for Violating Nunavik Offenders' Rights CENTURYLINK: Taking A Beating In Class-Action Suit Alleging Fraud CHECKERS DRIVE-IN: Ringo et al Seek Unpaid Wages under FLSA CHICAGO, IL: Black Lives Matter's Class Action Pending CHILDREN'S PLACE: Rael Class Action Remains Stayed CIBC: Faces Class Action Over Investment Trailer Fees CIOX HEALTH: Kasher Law Group's Suit Remanded to State Court CITIBANK NA: Dec. 20 Libor Settlement Approval Hearing Set COCRYSTAL PHARMA: Federman & Sherwood Files Class Action Lawsuit COCRYSTAL PHARMA: Gainey McKenna Files Class Action Lawsuit COLLEGE OF THE NORTH ATLANTIC: Court Issues Class Action Ruling COOPER COMPANIES: Settlement in Lens-Related Suit Has Initial Okay CULPEPER COUNTY, VA: Sheriff Faces Class Action Over ICE Holds DIOCESE OF PITTSBURGH: Suit Seeks Disclosure of Sexual Abuses DOLLAR TREE: Continues to Defend Ex-Store Staff's Suit in Florida DUN AND BRADSTREET: Kirk Seeks to Halt Sale to CC Capital EQUIFAX INFORMATION: Faces Thomas FCRA Suit in Virginia ESPERION THERAPEUTICS: 6th Cir. Flips Dismissal Securities Suit ESSENTIA WATER: Kennedy Disputes Bottled Water's Health Benefits ESTER C CO: Court Grants Summary Judgment Bid in Hughes Suit EXTREME NETWORKS: Agreement Reached in Securities Suit FACEBOOK INC: Privacy Class Action Mulled in Australia FIAT CHRYSLER: Sued Over Cherokee 9-Speed Transmission Issues FIRST LIBERTY: Filing of Third Amended Brewton Suit Denied FIRSTSOURCE ADVANTAGE: Choi Files FDCPA Suit in New York FOUR SEASONS: Court Narrows Claims in Hualalai Club Membership Suit GDS HOLDINGS: Queri Sues over 38% Drop in ADS Price GENERAL MOTORS: Faces Class Action in Fla. Over Oil-Guzzling SUVs GRAY TELEVISION: Car Dealer Sues Over Air-time Price-fixing GREENWAY HOME: Poole Seeks Minimum & OT Wages under FLSA HAYS RECRUITMENT: Faces Adero Law Class Action Over Casuals HP INC: Agreement in Principle Reached in Printer Firmware Suit HP INC: Continues to Defend Forsyth Class Action HP INC: Notice of Appeal Filed in Jackson Suit HUNTER ENGINEERING: Cal. App. Affirms Certification Denial IBM: Vermonters Can Join Class Action on Age Discrimination INOVALON HOLDINGS: Court Narrows Claims in Fromer TCPA Suit INTUIT INC: Accord in Tax Refund Fraud Case Has Initial Court OK JOHNSON & JOHNSON: Says Indian Patients' Claims Unreasonable KAPSTONE PAPER: Faces Multiple Merger Related Suits KLX INC: Stipulation of Dismissal Filed in Merger-Related Suit KRYPTONITE ENERGY: Shields Seeks Unpaid Wages and OT under FLSA LAZY ONE: Crosson Files ADA Suit in New York LEXINGTON INSURANCE: Court OKs Dismissal of Ezell RICO Suit LUXOR ESTATES CONDOMINIUM: Pasternakiewicz Seeks Unpaid OT Wages MARICOPA, AZ: David Isabel Files Civil Rights Class Suit MASSACHUSETTS: Sabree Files Appeal in Massachusetts Judicial Court MEDNAX: Bernstein, Spector Vie for Class Action Lead Counsel Spot MEDTRONIC PLC: Pretrial in Sprint Fidelis-Related Suit Underway MICROSOFT CORP: Appeals Court Will Consider Class-Action Question MONSANTO COMPANY: Sonnier Sues over Sale of Herbicide Roundup NATIONAL INSURANCE: Court Challenges Solvency Capital Policy NATIONWIDE CAPITAL: Fabricant Hits Illegal Telemarketing Calls NEOEN: Cites Risk Of Class Action Against Wind Farms NEW MEXICO: Corrections Dept. Sued over Employment Discrimination NEW YORK UNIVERSITY: Workers Appeal ERISA Class Action Dismissal NEW ZEALAND: $6MM Taxpayers' Money Spent to Defend Kiwifruit Case NIELSEN HOLDINGS: Labaton Sucharow Expands Class Action Lawsuit NISOURCE INC: Law Firm to Investigate Possible Securities Claims O.P.E.N. AMERICA: Mark Cries Fraud, Sues to Recover Minimum Wages OCH-ZIFF:Oks Settlement w/ Investors After Class Action Certified OPTIMA COMPUTERS: Bitcoin Users Seek Class Action in Connecticut OXY USA: Gas Royalty Owner Seeks to Certify Class Action PENN CREDIT: Alicea Suit Asserts FDCPA Breach PPDAI GROUP: Wolf Haldenstein Files Class Action Lawsuit PURDUE PHARMA: Pioneer Tel. Benefit Plan Files RICO Suit in OK QUALCOMM INC: Court Certifies Class in Antitrust Suit ROYAL WINNIPEG: Former Students Get Class Action Notices RUSHMORE LOAN: Vaquilar et al. Allege Fraudulent Mortgage Deals S.G.E. MANAGEMENT: 5th Cir. Affirms Dismissal of RICO Claims SENIOR HEALTH: Settlement in Caballero Suit Has Prelim Approval SERVICE PROS: Ridenour Seeks Minimum & OT under FLSA SHERRY-NETHERLAND INC: Bishop Files Class Action Under ADA SINCLAIR BROADCAST: Singh Balks at Tribune Media Merger Deal SIRIUS XM: Objects to Provisions of Music Modernization Act SOC LLC: Court Grants Bid to Clarify Risinger Class Definition SOLAR TINT: Shulman Seeks Overtime Pay under FLSA ST. THOMAS AQUINAS COLLEGE: Violates ADA, Bishop Suit Says STARBUCKS CORP: Removes Amster Case to C.D. California STATE FARM: $250MM Settlement May Spur More Campaign Cash Suits SUN LIFE: Sued for Misrepresenting Life Insurance Policies SUN TAN CITY: Sent Unsolicited SMS Ads to Goodman's Phone TD AMERITRADE: Judge Rules Class-Action Lawsuit Can Proceed TELENAV INC: Court Approves Gergetz Class Settlement TELSTRA CORP: CEO Says Shareholder Class Action Likely Unsuccessful TESLA INC: Sodeifi Suit Transferred to N.D. California TICKETMASTER LLC: Vaccaro Sues over Multiple Ticket Commissions TIMBUK2 DESIGNS: Diaz Files ADA Suit in New York TIME WARNER: Court Defers Ruling on Arbitration Bid in Landry Suit TRIBUNE MEDIA: Entwistle & Cappucci Files Securities Class Action TRISTAR PRODUCTS: Court Denies Bid to Intervene in Chapman Suit TWIN HILL ACQUISITION: Court Denies Bid to Dismiss Zurbriggen Suit UNITED COLLECTION: Sprei Files FDCPA Suit in New York UNITED STATES: El Paso County Joints PILT Class Action UNIVERSITY OF MARYLAND: Sued Over Mishandled Rape Reports US BANK: Faces Class Action in Calif. Over Deceptive Bank Fees USA TECH: Faces Class Action After Internal Probe Announcement USA TECH: Rosen Law Firm Files Securities Class Action VALLEY BROOK, OK: Motorists File Class Action Against Police VITAL PHARMACEUTICALS: Imran Files Class Action Over False Ad VOLKSWAGEN AG: Canada's Response to Emissions Scandal Criticized VOLKSWAGEN GROUP: Braunschweig Court Criticizes Ex-CEO Behavior VOLKSWAGEN GROUP: German Consumer Body to File Class Action WELLS FARGO: $480MM Settlement in Hefler Suit Has Prelim Approval WELLS FARGO: Dec. 18 Settlement Fairness Hearing Set WESTERN UNION: Judge Cuts Attorney's Fees in TCPA Case Settlement WHIRLPOOL: Sued Over AquaLift Self-Cleaning Technology YVES SAINT LAURENT: Diaz Files ADA Suit in New York [*] Gerry Brownlee Accused of Intimidating Class Action Lawyer [*] JND Legal Administration Named #1 Claims Administrator [*] South Korea Justice Minister to Expand Class Action System ********* A10 NETWORKS: Eric Blackwell Appointed Lead Plaintiff ----------------------------------------------------- In the case, Shah v. A10 Networks, Inc. et al., Case No. 3:18-cv-01772 (N.D. Cal., March 22, 2018), Judge Vince Chhabria granted the motion to appoint Eric Blackwell as lead plaintiff. The motion to appoint Robert Kraszewski as lead plaintiff is denied. On October 5, an amended complaint against A10 Networks, Inc., Lee Chen, Tom Constantino, Shiva Natarajan, Greg Straughn and Ray Smets was filed by Eric Blackwell and Robert Kraszewski. A10 Networks, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that on March 22, 2018, the Company, its Chief Executive Officer, its Chief Financial Officer, and certain former officers, were named as defendants in a putative class action lawsuit filed in the United States District Court for the Northern District of California, captioned Shah v. A10 Networks, Inc. et al., 3:18-cv-01772-VC (the "Securities Action"). The complaint in the Securities Action alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks unspecified damages and other relief. Plaintiff John Moulton is represented by: Todd David Carpenter, Esq. Carlson Lynch Sweet Kilpela & Carpenter LLP Tel: 619-762-1910 E-mail: tcarpenter@carlsonlynch.com Plaintiff Ketankumar Shah is represented by: David Jay Stone, Esq. Bragar Eagel & Squire, P.C. Tel: 212-308-5858 E-mail: stone@bespc.com - and - Laurence M. Rosen, Esq. The Rosen Law Firm, P.A. Tel: 213-785-2610 E-mail: lrosen@rosenlegal.com Eric Blackwell is represented by: Robert J. Gralewski, Jr., Esq. Kirby Mcinerney LLP Tel: 619-398-4340 E-mail: bgralewski@kmllp.com Movant Robert Kraszewski is represented by: Robert Vincent Prongay, Esq. Glancy Prongay & Murray LLP Tel: 310-201-9150 E-mail: rprongay@glancylaw.com Movant A10 Investor Group is represented by: Lawrence Paul Eagel, Esq. Melissa Ann Fortunato, Esq. Jeffrey H. Squire, Esq. Bragar Eagel & Squire, P.C. Tel: 212-308-5858 E-mail: eagel@bespc.com fortunato@bespc.com squire@bespc.com - and - Daniel Hume, Esq. Thomas Elrod, Esq. Kirby Mcinerney LLP Tel: 212-371-6600 E-mail: dhume@kmslaw.com telrod@kmllp.com - and - Robert J. Gralewski, Jr., Esq. Kirby Mcinerney LLP Tel: 619-398-4340 E-mail: bgralewski@kmllp.com Defendants A10 Networks, Inc., Lee Chen and Tom Constantino are represented by: Doru Gavril, Esq. Drew S Liming, Esq. Nina F. Locker, Esq. Wilson Sonsini Goodrich & Rosati Tel: 650-493-9300 E-mail: dgavril@wsgr.com dliming@wsgr.com nlocker@wsgr.com Defendant Shiva Natarajan is represented by: Bahram Seyedin-Noor, Esq. Alto Litigation, PC Tel: 415-868-5602 E-mail: bahram@altolit.com Defendant Greg Straughn is represented by: Simona Gurevich Strauss, Esq. Lee S. E. Brand, Esq. Simpson Thacher & Bartlett LLP Tel: 650-251-5000 E-mail: sstrauss@stblaw.com lee.brand@stblaw.com A10 Networks, Inc. provides software and hardware solutions in the United States, Japan, other Asia Pacific and EMEA countries, and internationally. A10 Networks, Inc. was incorporated in 2004 and is headquartered in San Jose, California. ABBVIE INC: Pippins Sues over Share Price Drop ---------------------------------------------- DAVID PIPPINS, Individually And On Behalf Of All Others Similarly Situated, the Plaintiff, vs ABBVIE INC., RICHARD A. GONZALEZ, and WILLIAM J. CHASE, the Defendants, Case 2:18-cv-08225 (C.D. Cal. Sept. 21, 2018), seeks to recover compensable damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. This case is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired the publicly traded securities of AbbVie between October 25, 2013 and September 18, 2018, both dates inclusive. According to the complaint, HUMIRA is AbbVie's blockbuster drug, which is used to treat Crohn's isease, rheumatoid arthritis, ulcerative colitis, psoriasis, and other ailments. In 2017, HUMIRA's sales were $18.4 billion. HUMIRA accounted for approximately 65% of AbbVie's net revenue for the fiscal year. On April 5, 2013, the Company filed its amended annual report for the fiscal year ended December 31, 2012 on Form 10-K with the SEC, which provided the Company's annual financial results and position. The 2012 10-K/A was signed by Defendants Gonzalez and Chase. In the 3Q 2013 Press Release, Defendant Gonzalez stated that AbbVie's "third-quarter performance demonstrates the strength and durability of our product portfolio and the continued execution of our key strategic priorities as an independent biopharmaceutical company." On February 21, 2014, the Company filed its annual report for the fiscal year ended December 31, 2013 on Form 10-K with the SEC, which provided the Company's annual financial results and position. The 2013 10-K 24 was signed by Defendants Gonzalez and Chase. The 2013 10-K also contained signed certifications pursuant to the Sarbanes-Oxley Act of 2002 by Defendants Gonzalez and Chase attesting to the accuracy of financial reporting, the disclosure of any material changes to the Company's internal controls over financial reporting, and the disclosure of all fraud. According to the California Complaint, relator-plaintiff Lazaro Suarez worked for AbbVie via its sub-contractor, Quintiles Transactional Holdings, Inc., as a "Nurse Educator" and "Patient Ambassador" from approximately March 23, 2013 and October 2014. In that position, he "became aware of AbbVie's [kickback] scheme nationwide, including in California, because of his role as a trainer, among other ways. After leaving his employment, Mr. Suarez continued to obtain information about the allegations, including through ongoing contacts with AbbVie and Quintiles personnel. The California Complaint states the alleged fraudulent conduct occurred from 2013 to the present. On this news, shares of AbbVie fell $4.35 per share or over 4.5% over the next two consecutive trading days to close at $91.02 per share on September 19, 2018. AbbVie is a publicly traded biopharmaceutical company founded in 2013. It originated as a spin-off of Abbott Laboratories.[BN] Counsel for Plaintiff: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com ACARA SOLUTIONS: Sent Unsolicited SMS Ads to Gerrard's Phone ------------------------------------------------------------ Samantha Gerrard, individually, and on behalf of all others similarly situated, Plaintiff, v. Acara Solutions Inc., Defendant, Case No. 18-cv-01041, (W.D. N.Y., September 20, 2018), seeks statutory and actual damages, reasonable attorneys' fees, costs, and expenses incurred in this action, including expert fees, prejudgment and post-judgment interest and other and further relief under the Telephone Consumer Protection Act. Acara is a staffing and recruiting company that solicits consumers for jobs on behalf of clients needing employees. It uses text message telemarketing via an autodialer to send these text message job notifications. Gerrard did not give his consent to receive such messages, says the complaint. [BN] Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 s. Biscayne Blvd., 28th floor Miami, FL 33131 Tel: (877) 333-9427 Fax: (888) 498.8946 Email: law@stefancoleman.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26TH Street Miami, FL 33127 Tel: (305) 469-5881 Email: kaufman@kaufmanpa.com AMERICAN BANK: Judge Confirms Ruling in Wage Class Action --------------------------------------------------------- Cook County Record reported that a federal judge has confirmed another judge's decision earlier this spring to refuse to end a class action brought by a group of bank loan officers, who accused their employer, American Bank and Trust, of shorting them wages and commissions. On Aug. 24, U.S. District Judge Andrea Wood denied the bank's request to reconsider the decision of Judge Wood's colleague, Judge John Z. Lee, who had recused himself after he had granted the plaintiffs' request to certify their collective action against the bank. Judge Lee had granted the motion for class certification on March 31, 2017, but about six weeks later, on May 11, 2017, Judge Lee recused himself, saying "one of the parties is represented by a law firm (he) was associated with during the past five years." Plaintiffs Marc Kramer, Kiril Trajcevski and Matt Nyman had filed suit in 2011 against American Bank and Trust, alleging they and others who had worked as mortgage loan officers at the bank were owed wages and commissions which the bank allegedly failed to pay, allegedly in violation of the federal Fair Labor Standards Act and the Illinois Minimum Wage Law. According to the court documents, the bank classified the loan officers as "sales employees," which the bank claimed allowed the employees to be paid "on a commission-only basis" before January 2011. After that date, however, the bank "began tracking hours worked and started paying loan officers hourly wages and overtime wages," asking its employees to "report only 40 hours per week, regardless of whether the loan officers worked additional hours," according to the factual background in Judge Wood's opinion. The employment agreement, cited in the ruling, "represented that they would be paid monthly commissions as a percentage of 'revenue generated' from the loans originated by the loan officer." However, the loan officers also asserted the bank would "skim" a portion of what they alleged was their pay, under a "company-wide policy of setting aside for itself a percentage of the revenue that was generated when a mortgage loan was sold in the secondary mortgage market, i.e., the 'secondary gain,' and considered that gain as 'the Bank's profit margin.'" The loan officers' commissions were thus calculated by the bank as "a percentage of the total revenue generated from his or her mortgage loans less the secondary gain,' the ruling stated. Following Judge Lee's recusal, American Bank responded with the request for reconsideration, and again asserted its arguments that the lawsuit should not be allowed to proceed as a class action. The bank asked Judge Wood to undo Judge Lee's ruling. However, Judge Wood backed Judge Lee's decision, saying she agreed with Judge Lee's conclusions in certifying the class action and allowing the loan officers to continue with their lawsuit. ". . . This Court concludes that the issues covered by the March 31, 2017 Memorandum Opinion and Order were correctly decided and those rulings should stand," Judge Wood wrote. American Bank and Trust is represented by attorneys with the firms of Heninger and Heninger P.C., of Davenport, Iowa, and Pappas O'Connor P.C., of Rock Island. Plaintiffs are represented by attorneys with the firms of Freeborn & Peters, of Chicago; and Offit Kurman P.A., of Baltimore, Md. U.S. District Court for the Northern District of Illinois Case number 1:11-cv-08758 [GN] AMN HEALTHCARE: White Sues over Credit and Background Reports ------------------------------------------------------------- KATHARINE L. WHITE, on behalf of herself, all others similarly situated, the Plaintiff, v. AMN HEALTHCARE, INC., a Nevada corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. RG18921814 (Cal. Super. Ct., Sept. 21, 2018) seeks compensatory and punitive damages due to the Defendants' systematic and willful violations of the Fair Credit Reporting Act, California Investigative Consumer Reporting Agencies Act, and the California Consumer Credit Reporting Agencies Act. The Plaintiff alleges that the Defendants routinely acquire consumer, investigative consumer and/or consumer credit reports to conduct background checks on the Plaintiff and other prospective, current and former employees and use information from credit and background reports in connection with their hiring process without providing proper disclosures and obtaining proper authorization in compliance with the law.[BN] Attorneys for Plaintiff: Shaun Setareh, Esq. Scott Leviant, Esq. William M. Pao, Esq. SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 Beverly Hills, CA 90212 Telephone (310) 888 7771 Facsimile (310) 888 0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com william@setarehlaw.com AMP: Clyde & Co Attorneys Discuss Shareholder Class Actions ----------------------------------------------------------- Janette McLennan, Esq. -- janette.mclennan@clydeco.com -- and Luke Russell, Esq. -- luke.russell@clydeco.com -- of Clyde & Co LLP, in an article for Lexology, wrote that competing class actions continue to be in the spotlight in Australia, where it has been just over 26 years since the class action regime was introduced. Whilst the Australian Law Reform Commission (the ALRC) is currently embarking on an inquiry into litigation funding and class actions, with its final report due in December 2018, jurisprudence is emerging from the Courts to tackle some of the same issues being considered by the ALRC on the commercialisation of law and the oppressive nature of multiple class actions. A recent landmark case (which will be welcomed by class action respondents generally) has resulted in a financial services company and asset fund manager AMP succeeding in its application to transfer four separate competing class actions from the Federal Court of Australia to the Supreme Court of New South Wales, where one class action was filed. Following the imminent transfer, the Supreme Court is expected to make a decision on how many of the class actions should proceed. AMP shareholder class actions Australia operates an "opt out" system, where all potential claimants fall within the defined class upon commencement of an action unless they choose to opt-out when notified of the claim. Despite this, closed class actions have been permitted by the Australian courts with the class being confined to those that have entered into an agreement with a particular litigation funder. This has resulted in many competing class actions in Australia, particularly in the shareholder and product liability space. In the case of AMP, it was quickly on the receiving end of five competing shareholder class actions filed in May and June 2018 following revelations of alleged misconduct in the current Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Those revelations were in relation to AMP allegedly charging customers fees where no services had been provided, and once made the AMP share price plummeted. The first of the five class actions was filed in the Supreme Court of New South Wales, followed by four subsequent class actions in the Federal Court of Australia. All actions had different lead plaintiffs and legal representatives, as well as backing from different litigation funders. Whilst there are nuances applicable to the various claims, each of the competing class actions contain allegations that AMP: * made false or misleading statements to Australia's corporate regulator in relation to the charging of fees for no service; * engaged in misleading or deceptive conduct; and * breached its continuous disclosure obligations in relation to material information under the Corporations Act 2001 (Cth). Such causes of action are typical in shareholder claims. In a jurisdictional battle AMP promptly moved to consolidate the claims and transfer all matters to the State court in New South Wales. Competing applications were filed by each of the class applicants in the Federal Court seeking to preserve the claims in that forum, and for the New South Wales action to be transferred there. They did not succeed. On 14 August 2018, the Full Federal Court determined that AMP should be permitted to have each of the four shareholder actions filed in the Federal Court transferred to the State Court. New South Wales was a natural forum for reasons including that AMP had its registered office in that jurisdiction, it is where the relevant events took place and it is where the relevant documents are situated and will need to be considered. Implications of the decision The AMP saga highlights the inter-jurisdictional tension that can arise in Australia between the Supreme Courts of the states and territories and the Federal Court, given they concurrently exercise federal jurisdiction and class action regimes have been introduced in the states of Victoria (in 2000), NSW (in 2011) and most recently Queensland (in 2017). All of the state regimes are largely based on the federal regime, where the Federal Court has historically been the predominant forum for the filing of shareholder claims. In his lead judgment in AMP, his Honour Chief Justice Allsop of the Federal Court remarked that there are not yet any standing arrangements between Supreme Courts and the Federal Court for a procedural protocol for approaching "competing" proceedings. However, his Honour emphasised his complete agreement with the Chief Judge in Equity in the New South Wales Supreme Court, who had stated (in relation to the competing class actions) that comity between the courts was of utmost importance. Whether or not an official protocol will be developed to deal with such procedural matters remains to be seen. The AMP decision follow the recent case of GetSwift, delivered in late May 2018, where a single judge of the Federal Court determined that only one class action could proceed whilst two competing class actions were stayed. The New South Wales Supreme Court in AMP is now expected to tackle the same issues of competing class actions that were ventilated in GetSwift. In the last say that the Federal Court has in AMP, Allsop CJ commented that this decision would involve questions such as class definition, the nature of the causes of action, the terms of any relevant funding agreements and other considerations of the kind considered in GetSwift and other recent decisions of the FCA on competing class actions. His Honour observed that little weight should be given to which class action was "first to the filing gate" as all courts "should be astute to protect the best interests of all group members, not the desires of the promoters and managers of the litigation (in particular, the commercial funders and the lawyers). Whilst the developing jurisprudence is welcome and likely to continue in Australia, the ALRC is expected to make broader recommendations later this year, given competing class actions increase cost and delay for both prospective class members and respondents. [GN] ANSOFONE CONTACT CENTERS: Brown Suit to Recover Unpaid Overtime --------------------------------------------------------------- Lloyd Brown, on behalf of herself and all others similarly situated, Plaintiff, v. Ansofone Contact Centers, LLC, Defendant, Case No. 18-cv-00490, (M.D. Fla., September 20, 2018), seeks damages and other relief relating to violations of the Fair Labor Standards Act for Defendant's failure to pay overtime at one and one-half the regular rate of pay for all overtime hours worked within a workweek. Ansofone operates a call center in Ocala, Florida where Brown worked as a call center agent. He claims to have been misclassified as independent contractor and denied overtime compensation for hours worked over forty per week. [BN] Plaintiff is represented by: Richard Celler, Esq. Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 Email: richard@floridaovertimelawyer.com noah@floridaovertimelawyer.com ARCHSTONE-SMITH OPERATING: Court Affirms $479K Taxation Costs ------------------------------------------------------------- The United States District Court for the District of Colorado issued an Order affirming Taxation Costs in the case captioned STEVEN A. STENDER, and INFINITY CLARK STREET OPERATING, L.L.C., on behalf of themselves and all others similarly situated, Plaintiffs, v. ARCHSTONE-SMITH OPERATING TRUST et al., Defendants. Civil Action No. 07-cv-2503-WJM-MJW. (D. Colo.). The Court awarded the Defendants their costs. After a contested hearing before the Court's Chief Legal Officer, to whom taxation of costs has been delegated, the Clerk of Court taxed $418,023.21 in favor of the Archstone Defendants and $61,643.01 in favor of the Tishman Defendants. STANDARD OF REVIEW On motion served within the next 7 days after the clerk taxes costs, the court may review the clerk's action. The district court's review of a clerk's order is de novo. Costs Awarded to Archstone Defendants Costs Explicitly Available Under 28 U.S.C. Section 1920 Deposition & Hearing Transcripts from the Arbitration The Plaintiffs' distinction is artificial. The claim resolved through arbitration was originally brought in this lawsuit, and the arbitration was a predicate to moving on with the other claims in this lawsuit. The depositions and testimony from the arbitration likely would have been elicited through discovery in this case but for the arbitration clause, and the transcripts were indeed used in this case to assist the parties in avoiding duplicative discovery on the remaining claims. The Plaintiffs further claim that of the more than 3000 pages of hearing transcript, the parties cited lines from only sixty pages in the summary judgment filings in this Court. And of that number, the Archstone Defendants referred to a mere five pages. But this is improper hindsight bias. It is not a basis to deny recovery of these costs. This objection is overruled. Deposition Videos The Tenth Circuit interprets Section 1920(2) to encompass video recordings of depositions, not just stenographic transcripts. The Plaintiffs argue that the Archstone Defendants had no need to purchase any video recording before it became clear that the case would proceed to trial, or at least the Archstone Defendants did not need to purchase the video recordings of depositions of witnesses slated to appear at trial or otherwise within the subpoena power of the Court. The Plaintiffs' only argument for disallowing all video recording costs is that such costs are unnecessary until trial is certain. That rationale, if accepted, would undermine the general preference for awarding video recording costs. This objection is overruled. Costs Awarded Under State Law Here, the Clerk taxed some costs under Colorado's cost-shifting regime codified at Colorado Revised Statutes Sections 13-16-105 and -122. The Plaintiffs argue that the Clerk should have applied Maryland law because Maryland law governs the contracts at issue in this case. Both groups of Defendants respond that this is a new argument, not advanced to the Clerk before or at the costs hearing, and implicitly contrary to the Plaintiffs' prior arguments against certain costs which cited to Colorado authority. The Plaintiffs, in their reply brief, do not deny Defendants' accusations, but assert that this Court reviews parties' requests for costs de novo. The Plaintiffs do not explain why Maryland law should control over Colorado law on the question of costs a matter deeply entwined with the forum in which one chooses to sue. The Court agrees with the Clerk and Defendants that Colorado law should apply to the matter of costs, to avoid as much as possible an incentive to forum shop as between Colorado state and federal courts. In that light, the Court turns to the Plaintiffs' objections to costs awarded under Colorado's statutory authority. Attorney Travel & Lodging The Clerk awarded the Archstone Defendants $29,778 for travel and lodging associated with depositions in this case, $3,575 for travel and lodging associated with the arbitration hearing, and $5,439 for travel and lodging associated with attending status and scheduling conferences in this courthouse. This authority does not obviously embrace all of the travel-and-lodging categories under which the Clerk awarded costs. Nonetheless, Plaintiffs' only challenge beyond the argument that Maryland law should apply is that the Clerk cited as authority Colorado Revised Statutes Section 13-16-122(h), which permits an award of any attorney fees, when authorized by statute or court rule. Subsection (h) does not apply here and this may have been a typographical error on the Clerk's part. But the Clerk also cited Home Loan Investment Co. v. St. Paul Mercury Insurance Co., 78 F.Supp.3d 1307, 1323 (D. Colo. 2014), which awarded deposition travel costs under Colorado law, citing the Colorado Supreme Court's Cherry Creek School District decision. The Court is unaware of Colorado authority holding that a court may award travel and lodging costs for attendance at court hearings and conferences. But Plaintiffs failed to offer any argument specific to that line item beyond the Clerk's apparently erroneous citation to Section 13-16-122(h). Accordingly, this objection is overruled. Electronic Legal Research The Colorado Court of Appeals holds under the logic of Cherry Creek School District that electronic legal research expenses may be awarded as costs if the client was billed for such expenses separate from attorneys' fees, the legal research was necessary for trial preparation, and the expenses are reasonable. The Clerk awarded the Archstone Defendants $182,287.01 for electronic legal research. Plaintiffs challenge this award on two bases: (1) the Colorado Supreme Court does not appear to have spoken on the issue and (2) a Tenth Circuit case suggests that electronic legal research expenses are essentially a substitute for attorneys' fees, but attorneys' fees are not at issue here. As for the fact that the Colorado Supreme Court has not spoken on the question, the Archstone Defendants respond that this simply means that the rule first announced by the Colorado Court of Appeals] in Roget remains controlling law. To the extent the Archstone Defendants contend that Roget is controlling law in federal court, they are mistaken. Federal courts sitting in diversity are not bound by the decisions of state intermediate appellate courts. Be that as it may, Plaintiffs do not argue that the Colorado Supreme Court would reject Roget. In this circumstance, the Court finds that Roget is the best evidence of what the Colorado Supreme Court would do if confronted with the question, so the Clerk committed no error in taxing legal research costs. The Plaintiffs' objection is overruled. Costs Awarded to Tishman Defendants Costs Explicitly Available Under 28 U.S.C. Section 1920 The Clerk awarded the Tishman Defendants $52,472.01 for transcripts and video recordings of the more than fifty depositions in this case. Plaintiffs claim that the Archstone Defendants took the lead role in this case and that the parties deposed only five Tishman Defendants, so the Tishman Defendants had no need to attend and incur costs for any depositions beyond those five. As for copying and sharing transcripts, the Plaintiffs cite no authority that this is ever required, or is even permissible under the terms by which shorthand reporters provide their services. If it were permissible, it seems that courts would have long since ordered that only one party should ever pay for a deposition transcript (or video, if applicable) and then that party should share with all other parties. Plaintiffs notably do not argue that they would have been willing to share their transcripts and videos with either defendant group, thus reducing costs further. This objection is overruled. Costs Awarded Under State Law The Clerk also awarded the Tishman Defendants travel and lodging expenses associated with depositions, totaling $9,171. Plaintiffs challenge this portion of the award for the same reasons stated in Part II.A.2.a, above, and the Court similarly overrules this objection for the same reasons stated there. The Court affirms the Clerk's awards of costs. A full-text copy of the District Court's September 27, 2018 Order is available at https://tinyurl.com/ycclog6w from Leagle.com. Steven A. Stender & Infinity Clark Street Operating LLC, on behalf of themselves and all other similarly situated,, Plaintiffs, represented by Brian Keith Matise -- BMatise@burgsimpson.com -- Burg Simpson Eldredge Hersh & Jardine, PC, Kenneth A. Wexler -- kaw@wexlerwallace.com -- Wexler Wallace, LLP, Olimpio Lee Squitieri -- lee@sfclasslaw.com -- Squitieri & Fearon, LLP, Christopher James Stuart -- cjs@wexlerwallace.com -- Wexler Wallace, LLP, Daniel Charles Girard -dcg@girardgibbs.com -- Girard Gibbs, LLP, Edward Anthony Wallace -- eaw@wexlerwallace.com -- Wexler Wallace, LLP, Jordan S. Elias -- je@girardgibbs.com -- Girard Gibbs, LLP, Kara A. Elgersma -- kae@wexlerwallace.com -- Wexler Wallace, LLP, Maria J. Ciccia -- maria@sfclasslaw.com -- Squitieri & Fearon, LLP, Mark Richard Miller -- mrm@wexlerwallace.com -- Wexler Wallace, LLP, Renee Beth Taylor , Bader & Associates, LLC & Thomas Arthur Doyle -- tad@wexlerwallace.com -- Wexler Wallace, LLP. Archstone-Smith Operating Trust & Archstone-Smith Trust, Defendants, represented byJonathan D. Polkes -- jonathan.polkes@weil.com -- Weil Gotshal & Manges, LLP, Adam Baker Banks , Weil Gotshal & Manges, LLP, 767 Fifth Avenue New York, NY 10153-0119, Alex C. Myers -- amyers@lrrc.com -Lewis Roca Rothgerber Christie LLP, Ashish Dinesh Gandhi -- Ashish.gandhi@weil.com -- Weil Gotshal & Manges, LLP, Caroline Jane Hickey Zalka -- caroline.hickeyzalka@weil.com -- Weil Gotshal & Manges, LLP, Elizabeth Stotland Weiswasser -- elizabeth.weiswasser@weil.com -- Weil Gotshal & Manges, LLP, Frederick J. Baumann -- fbaumann@lrrc.com -- Lewis Roca Rothgerber Christie LLP, Justin David D'Aloia -- justin.daloia@weil.com -- Weil Gotshal & Manges, LLP, Melanie A. Conroy -- melanie.conroy@weil.com -- Weil Gotshal & Manges, LLP, Ralph I. Miller -- Ralph.miller@weil.com -Weil Gotshal & Manges, LLP & Raquel Kellert -- raquel.kellert@weil.com -- Weil Gotshal & Manges, LLP. ARIZONA: Bid to File Deposition Testimony in Darjee Denied ---------------------------------------------------------- In the case, Aita Darjee, et al., Plaintiffs, v. Thomas Betlach, Defendant, Case No. CV-16-00489-TUC-RM (DTF) WO (D. Ariz.), Judge Rosemary Marquez of the U.S. District Court for the District of Arizona (a) denied the Plaintiffs' Renewed Motion for Class Certification; (b) denied the Plaintiffs' Alternative Motion for Class Discovery; (c) denied the Defendant's Motion for Leave to File Deposition Testimony; and (d) overruled in part and sustained in part the Plaintiffs' Objections to Judge Ferraro's denial of Plaintiffs' Motion to Compel. Darjee is an immigrant from Nepal who came with her family to the United States as a refugee in 2011 and, based on her status as a refugee, is eligible for Full Medical Assistance ("Full MA") with Arizona Health Care Cost Containment System ("AHCCCS"). Darjee's benefit eligibility was twice improperly reduced, once in 2015 and once in 2016, to Federal Emergency Services ("FES"), a medical plan with significantly less coverage. After both reductions, Full MA was restored, but Darjee and her family worry that their benefits will again be improperly reduced, preventing them from obtaining much-needed medical care. Plaintiff Alma Sanchez Haro came to the United States in 2003 as an immigrant and has, since that time, been eligible for Full MA based on her status as a victim of domestic violence under the Violence Against Women Act ("VAWA"). In 2015, Sanchez Haro became a legal permanent resident ("LPR"); LPRs generally have to wait five years for Full MA, but Sanchez Haro is exempt from the waiting period because of her VAWA status. After obtaining status as an LPR, Plaintiff Sanchez Haro's benefits were improperly reduced to FES on three separate occasions, but Full MA was later restored each time. (Id. at 16; Doc. 119 at 4-5; Doc. 158 at 2.) Plaintiff Sanchez Haro suffers from medical conditions, including mental illness, and worries that her reduced status will prevent her from receiving the medications and medical care she relies on. (Doc. 1 at 17.) AHCCCS benefits are determined by the Department of Economic Security ("DES"), which processes applications for benefits using the Health-e-Arizona Plus computer system ("HEAPlus"). Immigration information relating to eligibility for benefits is stored at an application level; that is, immigration information will not transfer within the system when a caseworker begins a new application, like a renewal. The system prompts a caseworker with a series of questions regarding the applicant, including immigration information affecting benefit eligibility, and will then automatically generate a benefit eligibility response. However, any application which, based on the information input by the caseworker, would result in an eligibility change from Full Medical Assistance ("Full MA") to Federal Emergency Services ("FES") cannot happen automatically because it requires approval by DES supervisory staff. The Plaintiffs filed the putative class action claiming that the Defendant, in his official capacity, violated the Medicaid Act by failing to furnish them Medicaid benefits with "reasonable promptness." They additionally claim that the written eligibility notices the Defendant sent to them were deficient and in violation of the Due Process Clause of the Fourteenth Amendment in addition to the Medicaid Act. Plaintiffs Darjee and Alma Sanchez Haro filed their two-count Complaint in July 2016 alongside a Motion for Class Certification, which sought certification of a class defined as all immigrant residents of Arizona eligible for full-scope Arizona Health Care Cost Containment System ("AHCCCS") benefits who, on or after Jan. 1, 2015, have been or will be required to recertify their eligibility for AHCCCS and whose benefits have been or will be improperly reduced from full-scope AHCCCS to emergency-only AHCCCS. The Defendant subsequently filed a Motion to Dismiss on the basis that the Plaintiffs failed to state a claim or, even if they did state a claim, they lacked standing to assert their claims, and that their claims were moot. After a motions hearing, Judge Ferraro issued a Report and Recommendation, recommending that the Court grants the Motion to Dismiss with prejudice and deny as moot the motion for class certification and other pending motions. After considering the Plaintiffs' Objections to the Report and Recommendation, the Court adopted the Report and Recommendation in part. Specifically, it dismissed the Plaintiff Darjee's claim under Count 2, otherwise denied the motion to dismiss, and denied the Motion for Class Certification. After approximately six months of discovery, the Plaintiffs filed the instant Renewed Motion for Class Certification, for which Judge Ferraro has issued a Report and Recommendation recommending denial of the Motion. The Plaintiffs objected to the Report and Recommendation, and the Defendants responded to those Objections. In the Renewed Motion, the Plaintiffs seek certification of the class of all immigrant residents of Arizona eligible for full-scope AHCCCS benefits who, on or after Jan. 1, 2015, have been or will be required to recertify their eligibility for AHCCCS through the Health-e-Arizona Plus computer system and whose benefits have been or will be reduced from full-scope AHCCCS to emergency-only AHCCCS. In evaluating the Renewed Motion, Judge Ferraro found that the Plaintiffs failed to satisfy their burden of showing commonality, typicality, or numerosity. Accordingly, he recommends that the Court denies the Renewed Motion for Class Certification. In their Objection to Judge Ferraro's Report and Recommendation, the Plaintiffs begin by arguing that the errors identified by the Defendant's HEAPlus computer system have yet to be corrected. They then go on to describe examples of the myriad errors the HEAPlus system necessarily produces. Next, the Plaintiffs contend that the manual review process instituted by DES in order to identify and correct improper benefit reductions is temporary and wholly inadequate at preventing continuing errors. The remainder of the factual allegations in the Plaintiffs' Objections attempts to dismiss counterarguments based on other possible sources of errors. Judge Marquez will deny the Plaintiffs' renewed motion for class certification. On the whole, she finds their proposed class is too broad for the class certification to be appropriate. Additionally, she does not find that additional pre-certification class discovery would affect the Court's resolution of the Motion, so the Plaintiffs' alternative request for the Court to take the motion under advisement and allow for class discovery will be denied. The Defendant moved for leave to file additional deposition testimony in support of his responses to the Plaintiffs' Objections to Judge Ferraro's Report and Recommendation. Because additional exhibits would not have been useful to the Court's consideration of the Renewed Motion for Class Certification or of Judge Ferraro's Report and Recommendation, the Judge will deny the Motion. The Plaintiffs moved to compel responses to interrogatories and requests for production. Generally, the discovery they sought in the motion was information on how the HEAPlus computer system functions and how it processes renewal applications with regard to immigrants other than the named Plaintiffs, for comparative purposes. The Judge finds that none of the Plaintiffs' protestations have provided her with a definite and firm conviction that a mistake has been committed, nor have they convinced her that Judge Ferraro's findings were unreasonable or devoid of evidentiary support. For these reasons, Judge Marquez accepted and adopted in full Judge Ferraro's Report and Recommendation. She (a) denied the Plaintiffs' Renewed Motion for Class Certification; (b) denied the Plaintiffs' Alternative Motion for Class Discovery; (c) denied the Defendant's Motion for Leave to File Deposition Testimony; and (d) overruled in part and sustained in part the Plaintiffs' Objections to Judge Ferraro's denial of Plaintiffs' Motion to Compel as follows: (i) the Objection is sustained as to the Plaintiffs' Interrogatory No. 7., the Defendant will have 30 days to answer the Plaintiff's Interrogatory No. 7; and (ii) the Objection is overruled as to the Plaintiffs' Interrogatory Nos. 2, 4, and 8-13, and Request for Production Nos. 2-4, 10, 11, and 13. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/KHPR4K from Leagle.com. Aita Darjee, on her own behalf and on behalf of her minor child N.D. & Alma Sanchez Haro, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Ellen Sue Katz -- eskatz@qwestoffice.net -- William E Morris Institute for Justice, Martha Jane Perkins -- perkins@healthlaw.org -- National Health Law Program & Sarah Lynne Grusin, National Health Law Program. Thomas Betlach, Director of the Arizona Health Care Cost Containment System, in his official capacity, Defendant, represented by Logan T. Johnston, Johnston Law Offices PLC. ATLANTIC COLLECTION: Ryan Files FDCPA Suit in Massachusetts ----------------------------------------------------------- A class action lawsuit has been filed against Atlantic Collection Agency, Inc. The case is styled as Robin Ryan individually and on behalf of others similarly situated, Plaintiff v. Atlantic Collection Agency, Inc., Defendant, Case No. 1:18-cv-12107-MLW (D. Mass., Oct. 9, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Atlantic Collection Agency is a full service collection agency, specializing in medical debt collection. They have been working with medical providers throughout New England since 1975.[BN] The Plaintiff is represented by: Kenneth D. Quat, Esq. Quat Law Offices 929 Worcester Road Framingham, MA 01701 Phone: (508) 872-1261 Email: kquat@quatlaw.com AUDI: Faces Class Action Over Defective Vehicle Coolant Pumps ------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that an Audi coolant pump class-action lawsuit alleges more than 340,000 vehicles are at risk of fires even though the automaker has recalled the vehicles twice. The lawsuit includes vehicles equipped with 2-liter turbocharged four-cylinder type EA888 Evo2 engines. -- 2013-2017 Audi A4 -- 2013-2017 Audi allroad -- 2013-2017 Audi A5 -- 2013-2017 Audi A5 Cabriolet -- 2012-2015 Audi A6 -- 2013-2017 Audi Q5 Plaintiff Scott D. Sager purchased a used 2013 Audi allroad in 2018 and soon learned the vehicle was recalled to replace the coolant pump. Sager says he contacted a dealer but was allegedly told no replacement coolant pumps were available and wouldn't be for months. The plaintiff claims the dealership told him he shouldn't drive the Audi until the pump was replaced, but the plaintiff says the dealer refused to provide a loaner vehicle. Sager doesn't claim his Audi suffered any problems from the coolant pump, but Audi admits moisture can enter the pump and cause a short-circuit that could lead to a fire. Volkswagen and Audi have been aware of the coolant pump problems since at least 2016 because a recall was ordered to install software that allegedly deactivated the power supply to the coolant pump if the pump got blocked by debris. The debris could further lead to moisture issues. The "fix" was supposed to prevent coolant pump fires, but owners continued to complain about overheated pumps even after the software was updated. Audi ordered another recall in April 2018 to replace the coolant pumps, but the automaker admitted the newly designed replacement pumps wouldn't be available until November 2018. In the interim, dealers were told to replace the pumps with identical pumps that would allegedly last until the permanent replacement pumps were installed. According to the lawsuit, Audi sent letters to owners in June warning customers to park their vehicles outdoors and away from anything that may burn if the coolant pumps cause fires. The plaintiff claims owners and lessees should have been offered free loaner vehicles until dealers were able to install the permanent replacement coolant pumps. In addition, the plaintiff says Audi told its dealerships to inform consumers the vehicles are safe to drive when they allegedly are anything but safe. Attorneys for the plaintiff claim Audi customers would not have purchased their vehicles if the automaker would have told them about the coolant pumps. The Audi coolant pump class-action lawsuit was filed in the U.S. District Court for the District of New Jersey - Scott D. Sager, et al., v. Volkswagen Group of America, Inc., and Audi of America, Inc. The plaintiff is represented by Lemberg Law, LLC. CarComplaints.com has complaints you can read from owners of the Audi vehicles included in the coolant pump lawsuit. -- Audi A4 -- Audi allroad -- Audi A5 -- Audi A6 -- Audi Q5 [GN] AVEO: Investors Still Wary Following Class Action Threats --------------------------------------------------------- Business News Australia reports that despite Aveo (ASX: AOG) reporting some solid FY18 results and announcing the completion of its five-year transformation project, investors are still wary of the retirement village operator. It has been just over a year since the company suffered at the hands of an ABC Four Corners investigation and the threats of two class action law suits; two factors that led to the dissipation of the company's share price in the first place. [GN] BRITISH AIRWAYS: Faces GBP50MM Class Action Over Data Breach ------------------------------------------------------------ John Leyden, writing for The Register, reports that British Airways faces a GBP500m lawsuit over its recent mega-breach that exposed payment card details of 380,000 customers. The airliner apologised and offered to compensate customers for any direct financial loss for the attack that took place between 21 August and 5 September via its website and app. However, an group-action suit* led by SPG Law contends BA has not gone far enough and should be paying travellers for the "compensation for inconvenience, distress and annoyance associated with the data leak". The action points to compensation rights in the European General Data Protection Regulation, which came into effect in May. SPG Law, the Brit limb of US firm Sanders Phillips Grossman, set up a dedicated micro-site to get victims to sign up to the case. The firm, which cynics might dismiss as an ambulance chaser, is recruiting participants on a "no win, no fee" basis. It has suggested its offer is the best and most straightforward way passengers might be able to secure up to GBP1,500 compensation. SPG Law said it would cap its fees at a maximum of 35 per cent including VAT. If the case goes to court, SPG Law acknowledged the possibility that the airline may win and might even be awarded legal costs. "In the event that it is necessary to litigate, we will arrange insurance on behalf of all Claimants who sign up with us," it said. "This will protect you against having to pay BA's costs in the unlikely event that the claim is lost." British Airways is yet to respond to a request for comment from The Register. (R) Bootnote * A group-action lawsuit is the English law equivalent of a class-action lawsuit. SPG Law is also "campaigning" to mount a group-action lawsuit over the VW emissions scandal on behalf of affected drivers. The firm is acting just days after the breach was disclosed and before the dust has settled and the facts are known. [GN] BUTCH'S RAT: Partial Summary Judgment Bid in Labor Suit Denied -------------------------------------------------------------- In the case, WILLIAM KEY, Plaintiff, v. BUTCH'S RAT HOLE & ANCHOR SERVICE, INC., Defendant, Case No. CIV 17-1171RB/KRS (D. N.M.), Judge Robert C. Brack of the U.S. District Court for the District of New Mexico denied both the Defendant's (i) Motion for Partial Summary Judgment, filed on March 30, 2018; and (ii) Motion to Disregard or Strike Plaintiff's Untimely Responses to Defendant's Motion for Partial Summary Judgment, filed on June 18, 2018. The Plaintiff and all putative class members worked for the Defendant laying pipe for oil and gas wells. The lawsuit arises out of a disagreement about whether the workers were entitled to overtime pay under the New Mexico Minimum Wage Act ("MWA"). The Defendant is a Texas oilfield service company that provides services to oil and gas industry customers. It employed the Plaintiff from November 2014 through August 2016. The Plaintiff has filed a class action complaint alleging that the Defendant failed to pay certain "non-exempt workers" ("Field Workers") overtime hours in violation of the MWA. The Field Worker positions represented in the declarations the Plaintiff submitted include Casing Floor Hands, Derrick Hands, Stabbers, Tool Haulers, Crew Haulers, and Relief Operators. The Defendant moves for partial summary judgment and asks the Court to dismiss the Plaintiff's claim only with respect to those Field Workers who were employed as Casing Floor Hands. During the time period covered by this lawsuit, Casing Floor Hands received several different types of pay, two of which are relevant to the motion: (1) "Footage Pay," which is calculated on a per-foot-of-pipe-laid basis; and (2) "Location Hours Pay" ("Exceeded Hours Pay"), which is calculated on an hourly basis. The Defendant's payment structure worked as follows: It allotted a certain number of hours for its workers to lay pipe ("running casing") on each customer's project, based on its estimate that workers can lay approximately 1,000 feet of pipe per hour. The Plaintiff asserts that the Defendant added some additional hours to each bid to allow time for rigging up and rigging down. The total number of hours bid gave the Defendant the maximum "Footage Pay" it would pay out to its Casing Floor Hands. If the project exceeded this set number of bid hours, the Defendant then paid Casing Floor Hands the hourly "Location Hours Pay" rate for all hours worked over the bid hours. The Plaintiff asserts that at times, the Casing Floor Hands had to wait before beginning or resuming their duties at a customer's well location. The Defendant required the Casing Floor Hands to remain at the job site during these unproductive times. If this unproductive time occurred within the Defendant's bid hours and Casing Floor Hands were still being paid under the Footage Pay structure, they were not compensated for the down time. Both parties submitted sample pay stubs from the relevant time period. The Plaintiff's four pay stubs demonstrate that, at least for these particular paychecks, the Plaintiff's Location Hours Pay accounted for anywhere from 15.5% to 22.1% of his total pay. The Location Hours Pay accounted for 16.9% of the total year-to-date pay as shown on the employee's paycheck that the Defendant submitted. As the Court found in Casias v. Distrib. Mgmt. Corp., Inc., at this stage in the litigation, the Judge must tip the scales in favor of the Plaintiff as the party opposing summary judgment. Moreover, the Court is required to construe the Section 50-4-21(C)(5) exemption to the Wage Act narrowly and cannot grant summary judgment in the Defendant's favor unless the exemption 'unmistakably' includes the Plaintiff. Based on the foregoing, he finds that the Plaintiff has come forward with evidence sufficient to create a genuine dispute of fact with respect to whether Casing Floor Hands are truly exempt from the MWA. The Plaintiff received three extensions to file his response to the Defendant's motion. In its order granting the Plaintiff's third request for an extension, the Court stated that no further extensions will be granted. On June 13, 2018, at 11:59 p.m., the proverbial eleventh hour, the Plaintiff filed his response. He filed the exhibits to his response seven minutes later, at 12:06 a.m. on June 14, 2018. Unbeknownst to the Plaintiff at the time, he had inadvertently filed a draft of his response, rather than the final version. When he discovered his error the next day, he filed the final draft of the response. The Defendant now asks the Court to strike the Plaintiff's late response. Because the Plaintiff attempted to comply with the Court's order and file his response on June 13, 2018, and because the Defendant has not been prejudiced by the Plaintiff's late filing of the final version of his response on June 14, 2018, the Judge will deny the Defendant's motion to strike. Therefore, Judge Brack denied both (i) the Defendant's Motion for Partial Summary Judgment; and (ii) the Defendant's Motion to Disregard or Strike Plaintiff's Untimely Responses to Defendant's Motion for Partial Summary Judgment. A full-text copy of the Court's Sept. 5, 2018 Memorandum Opinion and Order is available at https://is.gd/GSEOno from Leagle.com. William Key, Plaintiff, represented by Jack L. Siegel, Siegel Law Group PLLC, Travis Andrew Gasper, Lee & Braziel, LLP & J. Derek Braziel, Lee & Braziel LLP. Butch's Rat Hole & Anchor Service, Inc., Defendant, represented by Charlotte A. Lamont -- clamont@littler.com -- Littler Mendelson, PC & Yvette V. Gatling -- ygatling@littler.com -- Littler Mendelson, PC. CANADA: Federal Court Confirms Legal Fees in '60s Scoop Case ------------------------------------------------------------ The Canadian Press reports that a Federal Court judge says he doesn't have the power to reconsider how much the government should pay lawyers who led a successful class-action lawsuit against Canada over the so-called '60s Scoop. In a decision released, Judge Michael Phelan said the fees were approved by another Federal Court judge in May and there has been no appeal or legal process to reopen the matter. He further notes that the appeal periods have expired and the parties involved the class-action have been working to carry out the $750-million compensation deal for victims of the Scoop, Indigenous children who lost their cultural heritage after being taken from their homes and placed with non-Indigenous families. "It is not in the interests of the claimants or the administration of justice to add further uncertainty by reopening the issue of council fees further," Judge Phelan wrote in his decision. The judge said lawyers in the federal suit are free to reassess their fees and decide whether part of the money should instead go to the settlement, but are legally entitled to the sum approved by Federal Court Judge Michel Shore, who was handling the matter. Judge Phelan had requested input into whether he could review the fees after Justice Edward Belobaba, in a separate but parallel proceeding in Ontario Superior Court, found the $75 million Canada had agreed to pay in legal costs was excessive. Justice Belobaba also took issue with part of the deal that split the fees evenly between lawyers who acted in Federal Court and those who did in Superior Court. The lawyers who had spent years fighting the landmark case in Superior Court agreed to allow Justice Belobaba to deal with the fee issue separately, so that he could approve the Scoop settlement under which survivors are to be paid up to $50,000 each. The lawyers in the Federal Court action, however, maintained that Shore had signed off on the settlement on May 11, including the fee arrangement. But they returned to Federal Court for one more approval in light of the decision on the Ontario end. Phelan, who took over the case from Shore, signed an order in August confirming the lawyers in Federal Court would get their $37.5 million. But he sent a note to the federal parties the next day saying his approval applied to the agreement except for the fees and later questioned if he could even rule on the issue. In the end, the judge found that Justice Belobaba's ruling did not raise a circumstance that would permit the reopening of a federal judgment, saying each court's decisions stand on their own. It would also be inappropriate for the Federal Court to comment on the merits of the Superior Court ruling, given that counsel fees remain a "live issue" before the Superior Court, Phelan said. "It is not surprising that different court records yield different court decisions," Judge Phelan wrote. "Both are valid and subsisting decisions." [GN] CANADA: Ottawa Settles Class Action Over EI Sickness Benefits ------------------------------------------------------------- Laurie Monsebraaten, writing for The Star, reported that as many as 2,000 new parents -- mostly mothers -- who were seriously ill during parental leave, but denied additional EI sickness benefits, may finally get their money. After more than six years of legal wrangling, the federal government and Calgary mother Jennifer McCrea have settled a multi-million-dollar class-action lawsuit that alleged Ottawa wrongly withheld the payments. Federal Court Justice Catherine Kane confirmed the deal on Sept. 11. Subject to court approval in December, the settlement is expected to pay McCrea and about 2,000 others an average of almost $4,000 each, her lawyer said. The total value of the settlement, reached Aug. 22, is estimated to be between $8.5 million and $11 million, depending on the number of class members who apply for the money. "I am filled with gratitude for this settlement offer," said Ms. McCrea, 41, who developed breast cancer in 2011 while on maternity leave with her youngest son, Logan, but was denied additional EI sickness benefits. She stands to receive $7,515, the maximum 15-week benefit at the time. "It is such a relief. It was such a weight I carried for so long. I'm just so glad it's over," she said in an emotional telephone interview from Calgary. Under the settlement offer, only parents who were sick during the parental leave portion of their combined maternity/parental leave period and were denied additional EI sickness benefits are eligible for compensation. "Each member will receive 100 per cent of the EI benefit they are owed," said Ms. McCrea's lawyer Stephen Moreau -- smoreau@cavalluzzo.com "We certainly fought for interest, but in every case like this there is give and take on both sides," added Mr. Moreau, a lawyer with Cavalluzzo LLP. About $2.5 million of the settlement has been earmarked to cover the firm's legal costs. The government, which has records on EI sickness claimants, will mail notices of settlement to parents eligible for payment, who will have until December to give their input. The estates of those who have died will also be able to claim the money, said Moreau, who added he is confident people will support the offer. "The government of Canada recognizes the challenges faced by Canadians who cannot work because of illness, injury and other family challenges and has reached a settlement agreement . . . to bring closure to these legal proceedings," said a statement from Social Development Minister Jean-Yves Duclos's office. The court action stems from a 2002 change to EI legislation that extended sickness benefits to working parents who become ill during pregnancy or while on maternity and parental leave. It meant new mothers, such as Ms. McCrea, could take up to 15 weeks of sickness benefits to recuperate and then resume their parental benefits. But EI officials didn't interpret the changes that way; they argued that since an ill woman on parental leave wasn't available for work, she wasn't eligible for EI sickness benefits. It wasn't until Toronto mother Natalya Rougas successfully appealed her case in 2011 that the federal government took notice. Mr. Moreau, who represented Ms. Rougas in her successful claim, launched the class action in 2012 on behalf of Ms. McCrea after the Calgary mother read about the case online in the Star. "It was during Natalya's case that I realized many more women just like her were probably affected," Mr. Moreau said. "Jennifer McCrea agreed to be the face of those women." The Stephen Harper government eventually changed the law in 2013 to ensure new mothers with serious illnesses are not denied EI sickness benefits. And it quietly paid about 350 women who had their applications denied in 2012 and 2013. But it refused to pay Ms. McCrea and others who were denied sickness benefits between 2002 and 2013. A judge certified Ms. McCrea's class-action suit in May 2015. But despite an election promise to quickly settle the lawsuit, the current Liberal government continued to fight the case. Government documents released in March 2016 show the previous government spent $2.2 million fighting the class action. But an access to information request filed by The Canadian Press in the fall of 2017 showed the Liberals spent a further $300,000 opposing the case, bringing the total to more than $2.5 million. It is not clear how much more federal lawyers have spent since last year. Ms. Rougas received her EI sickness benefits when she won her case in 2011 and was not part of the class action. But she and her husband Stavros are pleased a settlement has been reached with Ms. McCrea and other parents. "It took time, but justice prevailed," Stavros said in an interview. "It feels good." Ms. McCrea, who has contacted cabinet ministers and local MPs to plead the case, admits there were times when she felt like giving up. But the marathon runner and mother of two says she was buoyed by friends and the knowledge other mothers were counting on her. "When you start a race, you have to finish it," she said. "And that's what we did." [GN] CANADA: Proposes $100MM Settlement in Veterans' Class-Action ------------------------------------------------------------ Tom Sasvari, writing for The Manitoulin Expositor, reports that the President of the Espanola-Manitoulin War Pensioners of Canada (WPC) is indifferent to a settlement proposed by the federal government that would provide a $100 million settlement in a disabled veterans clawback class-action. "It sounds like a lot of money, but it isn't when it gets divided among all the veterans who are part of this class action lawsuit against the federal government," said Colin Pick of WPC. Minister of Veterans Affairs and Associate Minister of Natural Defence the Honourable Seamus O'Regan issued a statement on September 12 regarding the settlement of a class action lawsuit brought against the Government of Canada which said: "the Government of Canada and the plaintiff Ray Toth have reached an agreement-in-principle to settle the class proceeding in Toth. vs Her Majesty the Queen, bringing the parties closer to the end of a legal action that began over four years go. The government and the plaintiffs have agreed in principle to settle this class action with an amount of $100 million inclusive of legal fees. I believe the proposed settlement is fair and provides both sides with needed closure. The settlement is subject to approval by the Federal Court." A settlement approval hearing is set for December. "Now that this matter may soon be behind us, the Government of Canada will continue working to better serve veterans and their families," said Minister O'Regan. "I believe this decision shows that we intend to ensure that veterans in Canada are better off now than they were before." "We have already invested $10 billion of new money into services and supports for veterans, and their families, hired hundreds of new staff and opened 10 Veterans Affairs office across the country," said Mr. O'Regan. "I look forward to continuing important discussions with Canadians in the coming weeks and months so that we can continue to build on what has been achieved to date." "The settlement, which is still to be approved by the federal court, would provide more than 12,000 veterans with payments of between $2,000 and $50,000 depending on when they served and the severity of their disabilities," said Minister O'Regan. Mr. Pick said, "I understand payments from $2,000-$50,000 would be provided. Even $50,000 is peanuts when for instance a veteran is having to deal with life after the military and is missing body parts. What the government is proposing sounds like a lot of money, but when not when it is being divided amongst so many veterans." The lawsuit was launched in 2014 after the federal government clawed back financial assistance from thousands of low-income veterans because they were also receiving disability pensions for injuries sustained while in uniform. The veterans alleged that the deductions, which took place between April 2006 and May 2012, violated their charter rights by discriminating against them because they were disabled.[GN] CANADA: Quebec Sued for Violating Nunavik Offenders' Rights ----------------------------------------------------------- Jane George, writing for Nunatsiaq News, reports that a class action lawsuit has been launched against the Quebec government to seek compensation for Nunavik residents who, due to the lack of correctional facilities in their region, are held in custody in the south for unreasonable periods of time. Lawyers Victor Chauvelot and Louis Nicholas Coupal-Schmidt, on behalf of Michael Carrier, 28, of Kangirsuk, and others, filed the statement of claim in Montreal on Sept. 3 at Quebec's Superior Court. The suit seeks damages of $2,500 per day for all Nunavik residents who are forced into "inhumane" jails in the south, leaving them with feelings of abandonment, solitude, anxiety and despair. This experience should merit each claimant an additional $50,000 in punitive damages, the statement of claim says. The statement of claim, which is for now available in French only, requires that the Quebec Superior Court first accepts this as a class action. It seeks compensation for anyone accused in Nunavik of a criminal offence since Sept. 4, 2015 -- three years before the statement of claim was filed -- and held for a period of more than three days between their first appearance before a judge and a bail hearing. According to Section 515 of the Criminal Code of Canada this wait should be no longer than three days, unless those arrested have consented to the extra time in jail. The parties held responsible for the breaches of the claimants' rights include Quebec's ministries of justice and public security. In the statement of claim, Mr. Carrier, 28 and a father of two, alleges that his rights and those of others were violated after arrest. Mr. Carrier was arrested this past July 5 but was detained until July 13 when he was released. It took him two more days to get home, amounting to 10 days in all. Every person detained in Nunavik should have the right to the "full protection of the law," as other Canadians and Quebecers do, says the statement of claim. However, that wasn't the case for Carrier and others in Nunavik who saw this this time frame violated due to the "indifference and negligence of the state," says the statement of claim. As well, Nunavik offenders can't remain in the region while the investigation is taking place, because there is no jail. The lack of a regional jail means, like Carrier, people who have been arrested must travel to correctional facilities in Amos or St. Jerome, on a long and costly journey that can take up to two weeks. The statement of claim states Quebec acted "in full knowledge of the immediate and obvious consequences of its actions" in allowing this to happen. Plans once existed to build a jail in Nunavik, which was called for in the 1975 James Bay and Northern Quebec Agreement and the 2002 Sanarutik Agreement, but "these promises were unfulfilled," states the statement of claim. By 2005, a $40-million jail was to be built in Inukjuak that would house 40 detainees. But in 2006, Nunavik leaders, Maggie Emudluk of the Kativik Regional Government, and Pita Aatami of Makivik Corp., traded that jail in the region for $300 million in crime prevention money from Quebec over a 22-year period, and the Sanarrutik Agreement was amended. Mr. Chauvelot told Nunatsiaq News that even though Nunavik leaders renounced a jail in favour of the money that led to the establishment of Ungaluk Safer Communities Program, that doesn't mean Quebec can continue to break the law. The idea that the correctional system needs to change isn't new: the Quebec ombudsman's report in 2016 revealed that the annual number of Inuit admitted into the province's correctional facilities stands at about 900 per year and that the average stay for Inuit awaiting trial is 17.6 days longer than for the rest of the inmate population in Quebec. The inequities due to the lack of a jail in Nunavik were raised again earlier this year at the Viens commission, which is looking at Quebec's track record with respect to Indigenous people. And more recently a Quebec Superior Court judge ruled that a Kuujjuaq woman does not have to complete a jail sentence until the province can provide a facility for her to serve an intermittent sentence in Nunavik. The Superior Court is likely to say within six months where this class action suit can move ahead, Mr. Chauvelot said. [GN] CENTURYLINK: Taking A Beating In Class-Action Suit Alleging Fraud ----------------------------------------------------------------- Lauren Ritchie, writing for Orlando Sentinel, reports that CenturyLink -- bumbling fools running a cobbled-together company or greedy executives deliberately "cramming" onto bills services that customers don't want and didn't order? Orlando lawyer Mark O'Mara, Esq. -- mark@omaralawgroup.com -- one of three lead attorneys in a nationwide lawsuit against CenturyLink, was inclined to believe the argument that the octopus of a firm with 5.9 million broadband customers just didn't have consistent policies and its customer-service representatives weren't well trained. The mistakes were, well, just that -- mistakes. Then, he and his colleagues pursuing a federal complaint started taking sworn statements from employees of the communications company that also has 12 million wireline subscribers. That's when O'Mara changed his mind. The lawyers began hearing from former and current CenturyLink employees that the company set impossibly high goals for sales people -- so high that they couldn't meet the numbers without engaging in fraud. Indeed, CenturyLink fired more than half its sales force between 2013 and 2017 for failing to meet crazy-high quotas, the suit states. At any given time, 70 to 80 percent of sales employees were somewhere on CenturyLink's discipline ladder because they couldn't sell enough. Here's a sample from the 165-page lawsuit, a statement from an employee identified only as FE-2: "A lot of times I'd get unit projections and would think, ‘Are we really going to do this?' Just looking at what we had done [historically] it was always mind blowing. In a market where we'd never sold over 1,700 units, all of a sudden we're going to push 2,500 units next month." And the result of high-pressure sales for you, dear customer? The lawsuit, filed in Minnesota but representing folks in Orlando and those in a dozen or so states, says that misquoting charges and adding unwanted services was "so endemic and institutionalized at CenturyLink" that the company may have over-billed 3.5 million customers -- half those who buy Internet and up to a third of those who have household phones. The suit is out to get refunds for customers here and elsewhere, and to change the way CenturyLink does business, which it contends results in massive rip-offs of customers. Asked specific questions about allegations in sworn statements by its employees, CenturyLink officials declined to answer. Spokesman Mark Molzen said, "In cases such as these, plaintiff lawyers frequently float unsubstantiated claims to put the company in a defensive and negative light. It isn't productive for us to react to their attempts to leverage the media to their advantage." Nice try. But diversion only works in football. Employees of CenturyLink testified that the company pays workers in big call centers in countries such as Honduras, El Salvador and the Philippines $3 to $4 an hour and gives them a monthly set amount with which to give refunds to angry customers, O'Mara said. If the customer-service representative runs over the typically low amount, the excess is deducted from the representative's paycheck. Oh, my. Now that's a bit medieval. Those representatives who can convince a customer to buy more services, however, can make relatively big bucks, O'Mara said. "If you up-sell, you can double or triple your income. If I'm the rep who resolves the problem, I get no bonus, no commission, no benefit for simply resolving the problem," he said. Perhaps the most common complaint about CenturyLink is that one customer-service representative promises a certain rate or change, and then a far higher bill arrives. The customer phones again and gets a new service representative who claims to have no way of knowing what rate was promised or by whom. It's as if every day is Monday at CenturyLink for the hapless customer. But that's a sham, O'Mara said. Employees testified that CenturyLink uses a sophisticated tracking program called "Assemble" that gives every customer representative full information. "Once the call is opened and the customer number is identified, all info, including previous contacts, services purchased, billing, etc., comes up on the screen. All calls are recorded and available to the reps," O'Mara said. "You don't get to a customer representative who doesn't have it." That's nice to know, isn't it? Here at the Orlando Sentinel, we pride ourselves on bringing you news you can use when you're up against a big corporation. While CenturyLink was boasting a "customer-first" focus, "in reality, fraudulent sales practices were at the very core of the company's business model," the suit states. The lawsuit lays out evidence showing the company knew its business plan was faulty and secretly tried to fix it. When sales dropped after the "fix," the company returned to requiring the higher goals and pressuring the sales staff, the suit says. Another part of the complex lawsuit is a claim on behalf of shareholders who, according to the court documents, received fabricated disclosures and whose stock dropped because of bad management. Over the next few months, O'Mara said, both sides will finish taking sworn statements and begin to argue legal issues, including one that could derail the complainants' efforts. That issue is whether customers must take their complaints to arbitration rather than sue in federal court as they have done. CenturyLink contends that all customers signed releases that state they will arbitrate if there is a dispute with the company. O'Mara said he believes he can get past that roadblock and litigate the case. Here's hoping he can. If half the claims meticulously described in the lawsuit are true, the result may be some tangible dollars in customers' pockets.[GN] CHECKERS DRIVE-IN: Ringo et al Seek Unpaid Wages under FLSA ----------------------------------------------------------- KINYATTA RINGO and AYONNA PENNINGTON, Each Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. CHECKERS DRIVE-IN RESTAURANTS, INC., the Defendant, Case No. 4:18-cv-715-DPM (E.D. Ark., Sept. 26, 2018) seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of the Defendant's failure to pay the Plaintiffs and other hourly-paid shift leaders lawful overtime compensation for hours worked in excess of 40 hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. According to the complaint, the Defendant owns and operates several Checker's and Rally's restaurants throughout Arkansas and the surrounding states. The Plaintiffs and other shift leaders were paid an hourly rate by Defendant. The Plaintiffs and other shift leaders worked more than 40 hours in most workweeks. The Defendant routinely scheduled Plaintiffs and other shift leaders to work more than 40 hours in a single workweek. It was the Defendant's commonly applied practice to not pay Plaintiffs and other shift leaders for all of the hours during which they were performing labor for the Defendant. The Defendant had a practice of not paying Plaintiffs and other shift leaders one and one-half times their regular rate for all hours worked in excess of 40 hours per workweek, the lawsuit says.[BN] Attorneys for Plaintiff: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: iosh@sanfordlawfirm.com CHICAGO, IL: Black Lives Matter's Class Action Pending ------------------------------------------------------ The Associated Press reports that opening statements were expected Sept. 17 in the first-degree murder trial of a white Chicago police officer in the fatal shooting of a black 17-year-old, Laquan McDonald. Officer Jason Van Dyke is scheduled to go on trial in a Cook County, Illinois, courtroom. He also is charged with aggravated battery and official misconduct. He has pleaded not guilty. Van Dyke's attorneys say he feared for his life when he shot McDonald 16 times. Video shows Van Dyke opening fire as the young man walks away from officers with a knife in his hand. Here are key moments in the case: 2014 Oct. 20: Van Dyke fatally shoots McDonald after responding to a call about a teenager breaking into cars. Other officers back Van Dyke's claim that McDonald, who had a small knife with its blade folded, posed a threat to Van Dyke's life. 2015 April 15: The Chicago City Council votes to approve a $5 million settlement with McDonald's family. Nov. 24: More than a year after the shooting, Cook County State's Attorney Anita Alvarez announced she was charging Van Dyke with first-degree murder. Hours later, the city responds to a judge's order and releases dashcam video of the shooting that shows McDonald veering away from officers. The footage appears to contradict the accounts of Van Dyke and the other officers on the scene that he lunged at them with the knife. The video's release sparks days of protests. Dec. 1: Chicago Mayor Rahm Emanuel fires Police Superintendent Garry McCarthy after a public outcry over the handling of the McDonald case. Dec. 7: The U.S. Department of Justice announces that its civil rights division will investigate the police force, looking for patterns of racial disparity in its use of force. Dec. 9: Emanuel apologizes for McDonald's killing in a speech before the City Council. He says Chicago's police force needs "complete and total reform." Dec. 16: A grand jury indicts Van Dyke on six counts of first-degree murder and one count of official misconduct. 2016: Feb. 16: The city of Chicago says it will release videos of police shootings and in-custody deaths within 60 days, after being criticized for refusing to release the McDonald shooting video for more than a year. April 12: A task force established by Emanuel to look into police practices in the wake of the McDonald shooting says the department must acknowledge its racist past and overhaul its handling of excessive force allegations. It also recommends abolishing the Independent Police Review Authority, which investigates officer misconduct. April 21: Emanuel announces changes to how police shootings and misconduct cases are handled, but draws criticism for stopping short of abolishing the Independent Police Review Authority. May 13: Emanuel announces that he is abolishing the Independent Police Review Authority and replacing it with the Civilian Police Investigative Agency, which will have more independence and resources. June 3: Chicago releases hundreds of videos that offer startling glimpses into violent encounters involving police, including the fatal shooting of a robbery suspect speeding toward officers in a van and an incident in which an officer slammed his night stick against a man's head at a party. Aug. 18: Superintendent Eddie Johnson says seven Chicago police officers should be fired for filing false reports in the McDonald shooting. Oct. 7: Johnson releases details of a proposed new policy that would require officers to use the least amount of force necessary and emphasizes the "sanctity of life." Nov. 16: A special prosecutor says a grand jury has been impaneled to hear evidence into a possible cover-up by Chicago police officers in the McDonald shooting. 2017 Jan. 13: The Justice Department announces the findings of its civil rights investigation. It says the Chicago Police Department has violated the constitutional rights of residents for years -- permitting racial bias against blacks, using excessive force and killing people who didn't pose a threat. It concludes that the pattern was attributable to "systemic deficiencies" within the department and the city, including insufficient training and a failure to hold bad officers accountable for misconduct. March 23: A grand jury adds 16 counts of aggravated battery with a firearm to the first-degree murder charges against Van Dyke in the McDonald shooting. The new indictment raises the number of felony counts against Van Dyke to 23. May 17: The Police Department releases a new use of force policy that requires Chicago officers to undergo de-escalation training and imposes stricter rules on when they can fire their weapons at fleeing suspects. June 3: Media reports say the city of Chicago and the Justice Department have negotiated a draft agreement that calls for an independent monitor to oversee reforms for the police force, which is the nation's second largest. But it is unclear if there will be court oversight at some stage in the future. June 14: Leading community groups, including a Black Lives Matter organization, file a class-action lawsuit against Chicago in a bid to bypass or scuttle a draft agreement between the city and the Justice Department that seeks to reform the police without federal court oversight. June 27: Three Chicago police officers are indicted on felony charges that they conspired to cover up Van Dyke's actions in the killing of McDonald. Aug. 28: The city of Chicago changes course and says it wants to carry out far-reaching reforms of its police under strict federal court supervision, abandoning a draft deal on reforms with the Trump administration that envisioned no court role. Nov. 14: The grand jury that indicted three Chicago police officers on charges that they conspired to cover up what happened when Van Dyke fatally shot McDonald disbands without indicting anyone else in the department. Dec. 11: The Chicago Police Department says all patrol officers are now equipped with body cameras. 2018 March 20: The American Civil Liberties Union and several community organizations say that they have reached an agreement to provide input into reforms being proposed for the Chicago Police Department. Sept. 13: Lawyers finish choosing 12 jurors and five alternates for Van Dyke's murder trial. Emanuel and Illinois' attorney general Lisa Madigan meanwhile unveil an updated plan to reform the city's police, saying it will ensure permanent, far-reaching changes within a 12,000-officer department that has a long history of committing serious civil rights abuses. The more than 200-page document is submitted to U.S. District Judge Robert Dow for his consideration. [GN] CHILDREN'S PLACE: Rael Class Action Remains Stayed -------------------------------------------------- The Children's Place, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended August 4, 2018, that the purported class action suit entitled, Rael v. The Children's Place, Inc., is still stayed. The Company is a defendant in Rael v. The Children's Place, Inc., a purported class action, pending in the U.S. District Court, Southern District of California. In the initial complaint filed in February 2016, the plaintiff alleged that the Company falsely advertised discount prices in violation of California's Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The plaintiff filed an amended complaint in April 2016, adding allegations of violations of other state consumer protection laws. In August 2016, the plaintiff filed a second amended complaint, adding an additional plaintiff and removing the other state law claims. The plaintiffs' second amended complaint seeks to represent a class of California purchasers and seeks, among other items, injunctive relief, damages, and attorneys' fees and costs. The Company engaged in mediation proceedings with the plaintiffs in December 2016 and April 2017. The parties reached an agreement in principle in April 2017, and signed a definitive settlement agreement in November 2017, to settle the matter on a class basis with all individuals in the U.S. who made a qualifying purchase at The Children's Place from February 11, 2012 through the date of preliminary approval by the court of the settlement. The settlement is subject to court approval and provides for merchandise vouchers for class members who submit valid claims, as well as payment of legal fees and expenses and claims administration expenses. The court has stayed the matter, pending an appellate court ruling in another lawsuit to which the Company is not a party. The settlement, if ultimately approved by the court, will result in the dismissal of all claims through the date of the court's preliminary approval of the settlement. However, if the settlement is rejected by the court, the parties will likely return to litigation, and in such event, no assurance can be given as to the ultimate outcome of this matter. In connection with the proposed settlement, the Company recorded a reserve for $5.0 million in its consolidated financial statements in the first quarter of 2017. The Children's Place, Inc. operates as a children's specialty apparel retailer. The company operates in two segments, The Children's Place U.S. and The Children’s Place International. It sells apparel, accessories, footwear, and other items for children; and designs, contracts to manufacture, and sells merchandise under the proprietary The Children's Place, Place, and Baby Place brand names. The Children's Place, Inc. was founded in 1969 and is headquartered in Secaucus, New Jersey. CIBC: Faces Class Action Over Investment Trailer Fees ----------------------------------------------------- Erica Johnson, writing for CBC News, reports that Steve Pozgaj became the lead plaintiff in a proposed class-action lawsuit against CIBC and CIBC Trust Corporation regarding trailer fees paid to online or discount brokers on CIBC mutual funds. A Toronto man says his "head exploded" when he learned he'd lost more than $60,000 from his retirement nest egg by paying fees for financial advice he never got -- and that his broker isn't legally allowed to provide. "Investors are getting screwed," said Mr. Pozgaj. Mr. Pozgaj, 65, is one of a growing number of Canadians who are do-it-yourself investors, using online brokerages to purchase mutual funds and other investments, instead of through a financial adviser. Last year, he and his wife were dinged almost $5,000 in trailer fees -- also known as trailing commissions -- which are embedded commissions paid by mutual fund companies to compensate advisers and firms that sell their funds, for the services and advice they provide clients. Mr. Pozgaj estimates he's been indirectly paying those fees to his discount brokerage, TD Direct Investing, for more than a decade, which means he's also lost the effect of compounded interest. In the case of do-it-yourself investment sites, like the ones Mr. Pozgaj uses, securities regulators strictly prohibit online brokers from giving advice. "Why should I be paying for advice when they're legally not able to give it?" said Mr. Pozgaj. In the dark Mr. Pozgaj said he had no idea he was paying for the supposed advice until a few months ago, when he took a close look at his investment statements, after the industry was forced to be more transparent about the fees charged to investors. "I have no problem paying somebody to manage my mutual funds; that's what they do to make me money, and I'm generally happy with TD," said Mr. Pozgaj. "But paying for advice that I'm not getting? Crazy." In an email to his discount broker at TD Direct Investing last April, Mr. Pozgaj asked about the trailer fees. His broker responded: "Everything is as it should be." Mr. Pozgaj considers himself a knowledgeable investor; in the 1990s, he was a chief information officer at Mackenzie Financial, a large investment management firm. Yet he had never heard of a type of mutual fund he could have been purchasing, called "Series D" funds. They're designed specifically for DIY investors, with lower fees -- and no trailing commissions. "I'm not Einstein," said Mr. Pozgaj. "But if I didn't know about them, with my level of sophistication, I would bet dollars to doughnuts that not many people know about this at all." Class actions filed Five months ago, Siskinds LLP, a law firm based in London, Ont., filed a proposed class-action lawsuit against TD Bank's investment management firm, TD Asset Management, claiming there were "breaches of trust" when TD charged trailing commissions for advice that was not provided by a discount brokerage. "As discount brokers do not and cannot provide investment advice to investors, the paying of trailing commissions . . . is improper, unreasonable and unjustified," Siskinds wrote in its statement of claim. Siskinds also filed a similar proposed class action in June against Scotiabank's investment management divisions regarding trailing commissions paid to discount brokers. "Investors are now seeing the dollars and cents they're paying by way of management fees, which include trailing commissions on these [DIY] mutual funds -- and I think people find it troubling," said Siskinds lawyer Michael Robb. He admits he himself once had DIY investments and paid trailer fees. "I'm sure there are thousands of people, if not more, who are affected by this," said Mr. Robb. "We're talking well into the tens of millions of dollars that Canadians have paid for advice that was never delivered." The proposed class-action suits have yet to be certified and no response has been submitted by either bank. When contacted by Go Public, both TD and Scotiabank said they are unable to comment on the proposed class actions as the matter is "currently before the courts." TD added that its mutual fund fees are all disclosed on its website. 'Industry-wide' problem Although the proposed class-action lawsuits target two investment fund management companies, Siskinds is currently considering class-actions against other mutual fund management companies, Robb said, because charging DIY investors for advice they're not getting is "an industry-wide" issue. A 2017 report by the Canadian Securities Administrators (CSA), an umbrella group for all provincial securities commissions, estimates that there were more than $25 billion worth of mutual fund products paying trailer fees held in discount brokerages, as of the end of 2015. "It's a big problem and it's costing regular people a lot of money," said Mr. Robb. "It's money taken out of their accounts every year and it compounds." Proposed ban On Sept. 13, the CSA published its proposal to ban trailer fees paid to discount brokerages. It is giving the industry three months to comment on the proposed change. The move comes years after the CSA launched in 2012 a review of the fees on mutual funds, which are the country's most commonly held investment product. The delay is disappointing to some investment experts, including Larry Bates. "This has been going on for years," said Mr. Bates, a former investment banker turned independent investor advocate, and author of a how-to book for Canadian investors titled Beat the Bank. "I would like to see the regulators act more decisively and more quickly on this issue." 'Biggest secret on Bay Street' While Bates said he believes paying trailer fees to discount brokers is "ridiculous," he said those products are really just a small segment of the total mutual fund market, which totals $1.49 trillion, according to the Investment Funds Institute of Canada. "The impact of mutual fund fees on retirement accounts, over time, is the biggest secret on Bay Street," said Mr. Bates. "Investors are unaware, and the industry wants to keep it that way." A typical mutual fund's total fees range from 1.5 per cent to 2.5 per cent a year, Mr. Bates said. "Those fees are deducted from retirement accounts," he said. "But the industry never presents a bill. Investors are never showed the quantum of fees they pay, and they don't see the impact of those fees over time." Over a 25-year time frame, Bates said a two per cent fee will strip out about 50 per cent of an investor's total returns. "It's plain wrong, and really takes advantage of investors." Investors would be well-served learning some investment basics, Bates said. The fees aren't just an issue for individuals, he argues, but "a social issue" as well. "Who's going to pay for the retirements of our generation and the next generation? The business model we have in the investment industry that's addicted to these high-cost products serves Canadian investors extremely poorly," he said. "It's not good for Canadians. It's as simple as that." As for Mr. Pozgaj, he says he's been waiting to see how TD will address his concerns about the trailer fees he's been indirectly paying, and is considering legal action. "I just can't see injustice being done and do nothing about it," he said. "This just seems wrong. It's morally incorrect, what they're doing." [GN] CIOX HEALTH: Kasher Law Group's Suit Remanded to State Court ------------------------------------------------------------ In the case, KASHER LAW GROUP, LLC, on behalf of itself and all others similarly situated, Plaintiff, v. CIOX HEALTH, LLC, Defendant, Case No. 1:18-cv-01821-NLH-AMD (D. N.J.), Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey granted the Plaintiff's motion for remand. The putative class action, originally filed in state court and removed by the Defendants to the Court, concerns the Plaintiff's allegations that the Defendant committed fraud and acted in bad faith by overcharging for electronic copies of patients' medical records. The Plaintiff is a law firm that requested hospital medical records for its client from Our Lady of Lourdes Hospital in Camden, New Jersey. The Defendant is an information management company that, among other things, contracts with hospitals, including Our Lady of Lourdes Hospital, to provide copies of patients' medical records at their request. According to the Plaintiff's complaint, the Defendant charged $161.90 for 261 pages of its client's medical records, which were electronically downloaded onto a CD and mailed to the Plaintiff. The Plaintiff claims that the Defendant's fees for electronic production are not based on its actual costs, and are higher than the limits imposed by N.J.A.C. Section 8:43G-15.3(d), which permits only a $10 search fee, the actual cost of the portable media (e.g., CD), and the actual cost of postage, as determined by the New Jersey Department of Health. The Plaintiff seeks a declaratory judgment that the Defendant's violation of this provision constitutes an unconscionable business practice, and violates the New Jersey Consumer Fraud Act. It also claims that the Defendant breached the covenant of good faith and fair dealing by overcharging for electronic medical records and adds a claim for unjust enrichment. The Plaintiff has proposed the class of all patients who are New Jersey citizens, or persons designated by such patients to receive copies of their medical records: (A) who, between Dec. 11, 2011 and the present, received an invoice from Ciox for electronic copies of patient medical records produced on a CD or via internet download, which were created by a New Jersey health care provider; and (B) who paid that Ciox invoice. The Plaintiff alleges that each class member has incurred less than $210 in out-of-pocket damages. The Defendant removed the Plaintiff's case from New Jersey Superior Court, Camden County, to the Court, contending that the Court has jurisdiction over the matter pursuant the Class Action Fairness Act ("CAFA"). In its notice of removal, the Defendant contends that all three elements for CAFA jurisdiction are met. Specifically with regard to the amount in controversy, it contends that the Plaintiff's proposed class encompasses more than 50,000 potential class members. At $100 in damages per class member ($110 less than proposed by the Plaintiff), along with treble and punitive damages and attorney's fees, all of which are available to the Plaintiff for its claims and requested in the complaint, the $5 million amount in controversy threshold is easily met. The Plaintiff has moved to remand its case to state court. In its motion to remand, it does not dispute that the matter meets the citizenship and numerosity requirements of CAFA. The Plaintiff argues, however, that the Defendant has not demonstrated that the class claims will exceed $5 million and contends its case should be remanded for lack of subject matter jurisdiction. Judge Hillman finds that the evidence before the Court shows that the Defendant's allowable charges for the electronic production of hospital medical records are $10 for the search fee and $11.65 for postage, which is what the Defendant charged the Plaintiff in the case. As for the cost of the CD, even if it is only $.01 when factored into calculation, that cost results in an amount in controversy significantly less than the $5 million threshold for CAFA jurisdiction. Permitted charges ($21.66) x class members (18,523) = $401,208.18. Total revenue ($1,267,453) — permitted charges ($401,208.18) = $866,244.82 in overcharges. Overcharges ($866,244.82) × 3 for treble damages = $2,598,734.46 in class damages. Fifty-percent attorney's fees and costs ($1,299,367.23) + class damages ($2,598,734.46) = $3,898,101.69 for the total amount in controversy. Understanding that a CD or other portable media device most likely costs more than $.01, the increase in permitted costs simply reduces the total class damages and thus further supports that the amount in controversy is not met in the case. Consequently, because the preponderance of the evidence shows that the total amount in controversy for the Plaintiff's putative class action is less than $5 million, the Court lacks subject matter jurisdiction over the Plaintiff's putative class action under CAFA. The Defendant has not proven by the preponderance of the evidence that the amount in controversy exceeds $5 million. Accordingly, the Judge granted the Plaintiff's motion for remand. An appropriate Order will be entered. A full-text copy of the Court's Sept. 5, 2018 Opinion is available at https://is.gd/RUDxQL from Leagle.com. KASHER LAW GROUP, LLC, on behalf of itself and all others similarily situated, Plaintiff, represented by JOSEPH A. OSEFCHEN, DeNITTIS OSEFCHEN, P.C. & STEPHEN PATRICK DENITTIS -- sdenittis@denittislaw.com -- DENITTIS OSEFCHEN, PC. CIOX HEALTH, LLC, Defendant, represented by REBECCA BRAZZANO -- Rebecca.Brazzano@ThompsonHine.com -- THOMPSON HINE LLP. CITIBANK NA: Dec. 20 Libor Settlement Approval Hearing Set ---------------------------------------------------------- If you are a U.S.-Headquartered Lending Institution that owned a loan with interest payable to you at a rate based upon U.S. Dollar LIBOR anytime between August 1, 2007 and May 31, 2010, you may be eligible for a payment from Settlements totaling $31 million. What is this lawsuit about? In a class-action lawsuit about alleged manipulation of the London Interbank Offered Rate ("LIBOR"), Settlements have been reached with Citibank, N.A. and Citigroup Inc. (collectively, "Citibank"), HSBC Bank plc and HSBC Holdings plc (collectively, "HSBC") and Barclays Bank plc ("Barclays"). Citibank, HSBC and Barclays are together called "Settling Defendants." The lawsuit claims that Settling Defendants and the Non-Settling Defendants unlawfully manipulated U.S. Dollar LIBOR, artificially lowering the rate which caused class members to lose money in connection with loans and transactions regarding loans. Who is included? You are included in the Settlements if you are a U.S.-headquartered lending institution that originated loans, held loans, held interests in loans, owned loans, owned interests in loans, purchased loans, purchased interests in loans, sold loans, or sold interests in loans with interest rates based upon U.S. Dollar LIBOR. Class Members will release claims through these Settlements only against Settling Defendants and their affiliates; the Settlements do not impact claims in the lawsuit against the Non-Settling Defendants, and the lawsuit is ongoing. The loans affected include, among others: U.S. Dollar LIBOR-based loans that include a term, provision, or obligation or right to receive interest payments based on U.S. Dollar LIBOR. These Settlements do not include other types of U.S. Dollar LIBOR-based instruments such as interest rate swaps or bonds. YOUR LEGAL RIGHTS AND OPTIONS IN THESE SETTLEMENTS OPTION AND DEADLINE Submit a Claim November 20, 2018 (Submitted or Postmarked) This is the only way to receive a payment from the Settlements. Ask to be Excluded November 20, 2018 (Postmarked) You will receive no monetary benefits from the Settlements. This is the only option that allows you to retain any claims released by the Settlements against Settling Defendants about U.S. Dollar LIBOR manipulation and other claims at issue in this case. Object November 20, 2018 (Postmarked) If you wish to object to the Settlements, or anything else referenced in this Notice, you must file a written objection. Go to a Hearing You may also request to be heard at the Fairness Hearing. The Court will hold a hearing on December 20, 2018, to consider whether to approve the Settlements and approve Class Counsel's request for attorney's fees of up to one-third of the Settlement Fund, plus reimbursement of costs and expenses. You or your own lawyer may appear and speak at the hearing at your own expense. Do Nothing You will forfeit your right to receive a monetary benefit from the Settlements and you will give up your rights to assert claims released by the Settlements against Settling Defendants about U.S. Dollar LIBOR manipulation claims at issue in this case. FOR MORE INFORMATION: Call: 1-833-609-9716 Email: info@LendersLiborSettlements.com Mail: Lenders LIBOR Settlements c/o JND Legal Administration P.O. Box 91347 Seattle, WA 98111 COCRYSTAL PHARMA: Federman & Sherwood Files Class Action Lawsuit ---------------------------------------------------------------- Federman & Sherwood disclosed that on September 20, 2018, a class action lawsuit was filed in the United States District Court for the District of New Jersey against Cocrystal Pharma, Inc., f/k/a BioZone Pharmaceuticals, Inc. (NASDAQ: COCP). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is September 23, 2013 through September 7, 2018. Plaintiff seeks to recover damages on behalf of all Cocrystal Pharma, Inc., f/k/a BioZone Pharmaceuticals, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, November 19, 2018 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights please: Robin Hester, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com [GN] COCRYSTAL PHARMA: Gainey McKenna Files Class Action Lawsuit ----------------------------------------------------------- Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against Cocrystal Pharma, Inc. (f/k/a/ BioZone Pharmaceuticals, Inc.) ("Cocrystal Pharma" or the "Company") (Nasdaq: COCP) in the United States District Court for the District of New Jersey on behalf of a class consisting of investors who purchased or otherwise acquired Cocrystal Pharma securities between September 23, 2013 through September 7, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. The Complaint alleges 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 Pharma's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm prior to the November 19, 2018 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action please: Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. Gainey McKenna & Egleston Telephone: (212) 983-1300 Email: tjmckenna@gme-law.com gegleston@gme-law.com [GN] COLLEGE OF THE NORTH ATLANTIC: Court Issues Class Action Ruling --------------------------------------------------------------- Veronica Sjolin, Esq. -- VSjolin@blg.com -- of Borden Ladner Gervais LLP, in an article for Lexology, reported that the Newfoundland Court of Appeal has rendered a precedent-setting decision in Thorne v. College of the North Atlantic, in which the bench was tasked with deciding a novel issue: does the Newfoundland and Labrador Class Actions Act, (the "Act") provide for the certification of counterclaims? The Court of Appeal answered in the negative. Like many other provinces in Canada, Newfoundland's class action legislation does not expressly provide for the certification of a claim against a class of defendants. In this case, the defendant in a class action sought to bring a counter-claim against the same class that was suing the defendant. In other words, it was seeking to certify the plaintiff class as a defendant class for the purposes of its counterclaim. While the defendant in Thorne was trying to bring a counterclaim and was therefore forced to proceed in Newfoundland, there may be cases where parties will want to certify a defendant class. Thorne suggests that parties contemplating this unusual strategy will have to litigate in provinces such as Ontario, whose legislation expressly provides for defendant class actions. The Background The defendant College is a publicly-owned technical training institute operating in Newfoundland and Labrador. In 2001, the College entered into an agreement with the government of Qatar to operate a technical training institute in Qatar. The plaintiff, Ms. Thorne, was employed by the College as an instructor in Qatar. She commenced a class action, along with other employees, against the College for breach of contract, alleging that, in addition to the remuneration set out in their individual contracts of employment with the College, they ought to have been, but were not, paid a living allowance. The application for certification was granted and Ms. Thorne was appointed the representative plaintiff. The College filed a defence and counterclaim. In its counterclaim, the College argued that some of its employees, including Ms. Thorne, were overpaid and sought reimbursement of the overpaid amounts. The Trial Decision The Judge recognized that certification of the College's counterclaim did not fit within the scheme of the Act but nevertheless found that rule 7A.01(4) of the Rules of Supreme Court, 1986 and section 13 and 14 of Act provided him with the discretion to do so. The Appeal The Court of Appeal allowed the appeal and struck the College's counterclaim. The counterclaim did not meet the statutory conditions for certification, as required by the Act. The Court set out the applicable provisions of the Act. Specifically, section 3 of the Act speaks to a plaintiff class action and section 4 of the Act provides that a defendant may apply to certify a plaintiff class if the defendant is sued by more than on plaintiff and the plaintiff's class has not already been certified. A defendant class action, however, is when two or more defendants are certified as a class. There is no such provision in the Act. Because a counterclaim is an independent action, a defendant who files a counterclaim becomes a plaintiff by counterclaim. That meant that the College was a plaintiff and must therefore comply with the requirements under the Act. In this case, the College, a corporate entity, was the sole defendant in the plaintiff's class action and the sole plaintiff by counterclaim. As a sole plaintiff by counterclaim, it was not a member of a class of persons who reside in the province as required by section 3(1) of the Act. Section 4 of the Act also did not apply because the College was not named as a defendant in more than one action. Finally, the College was unable to fit within other sections of the Act. For instance, the counterclaim did not disclose a cause of action as required by section 5(1) of the Act. Even if employees had been overpaid, the pleadings did not disclose why the College should be entitled to recover those amounts. Further, the counterclaim was only against about half of the plaintiff class and therefore, this was not an issue common to all members of the class. [GN] COOPER COMPANIES: Settlement in Lens-Related Suit Has Initial Okay ------------------------------------------------------------------ The Cooper Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 31, 2018, that the court has granted preliminary approval of the parties' settlement in the contact lens-related class action suit. Since March 2015, over 50 putative class action complaints were filed by contact lens consumers alleging that contact lens manufacturers, in conjunction with their respective Unilateral Pricing Policy (UPP), conspired to reach agreements between each other and certain distributors and retailers regarding the prices at which certain contact lenses could be sold to consumers. The plaintiffs are seeking damages against CooperVision, Inc., other contact lens manufacturers, distributors and retailers, in various courts around the United States. In June 2015, all of the class action cases were consolidated and transferred to the United States District Court for the Middle District of Florida. In August 2017, CooperVision entered into a settlement agreement with the plaintiffs, without any admission of liability, to settle all claims against CooperVision. In July 2018, the Court approved the plaintiffs' motion for preliminary approval of the settlement, and the Company paid the $3.0 million settlement amount into an escrow account. Cooper Companies said, "The settlement remains subject to final Court approval at a future hearing to be set by the Court." The Cooper Companies, Inc. operates as a medical device company worldwide. It operates through CooperVision and CooperSurgical business units. The company develops, manufactures, and markets a range of contact lenses, including spherical lenses, and toric and multifocal lenses that correct near- and farsightedness, as well as addresses various complex visual defects, such as astigmatism and presbyopia. The Cooper Companies, Inc. was founded in 1980 and is headquartered in Pleasanton, California. CULPEPER COUNTY, VA: Sheriff Faces Class Action Over ICE Holds -------------------------------------------------------------- Jack Moore, writing for WTOP, reports that a Virginia man, who was pulled over last August on misdemeanor charges and kept in jail for three months, has filed a class-action lawsuit against the Culpeper County sheriff, claiming the official's practice of holding suspected undocumented immigrants in jail after their release dates is unconstitutional. The case involves Sheriff Scott Jenkins' policy of honoring requests from U.S. Immigration and Customs Enforcement agents to temporarily hold immigrants in custody. The lawsuit claims the sheriff who runs the county jail refused to release prisoners who had ICE detainers placed against them -- even if a judge had ordered them to be released and even if friends and family members sought to pay the prisoner's bail. The lawsuit was filed by the Legal Aid Justice Center and Victor M. Glasberg, a civil rights attorney. Francisco Guardado Rios, the man at the center of the lawsuit, was locked up in the Culpeper County jail last August after he was arrested for driving without a license and contributing to the delinquency of a minor. (His lawyer told WTOP the second charge stemmed from the fact that Mr. Guardado Rios, who is in his 30s, was with his 17-year-old cousin and there was beer in the car). Both charges are misdemeanors in Virginia. Hours after his initial arrest, Mr. Guardado Rios was ordered released from jail on a $1,000 bail. Meanwhile, ICE had lodged a detainer against him, and when his friend showed up to pay his bail, the friend was told it wouldn't matter: Mr. Guardado Rios would remain in jail, regardless, because Jenkins had a policy of refusing to release prisoners with ICE detainers, the lawsuit claims. A spokesman for the Culpeper County Sheriff's Office did not immediately respond to a request for comment from WTOP. Mr. Guardado Rios stayed locked up for nearly three months. At his Nov. 7 trial, he was convicted of contributing to the delinquency of a minor and sentenced to 10 days in jail. But because he had already served far more time than that before his trial, the court ordered him released immediately. However, the lawsuit claims Jenkins held Mr. Guardado Rios for two more days -- because of the ICE detainer -- and then had him transferred to the custody of federal immigration authorities. The lawsuit claims Mr. Guardado Rios' "prolonged detention" violated his due process rights under the U.S. Constitution and also constituted false imprisonment under Virginia common law. His lawyers said Mr. Guardado Rios suffered emotional distress and also lost the opportunity to return home to arrange his affairs before being taken into custody by ICE. The suit seeks to have a judge declare the sheriff's policy of holding people past their release dates as unlawful and also seeks damages. In addition, the class action suit includes additional plaintiffs who were held at the Culpeper County jail past their release dates on ICE detainers. Citing a database of federal data maintained by Syracuse University, the lawsuit claims Jenkins held nearly 100 prisoners at the county jail past their release dates on ICE detainers in 2017 and 2018. The practice of local law enforcement officials cooperating with federal immigration authorities is controversial. The ICE detainers and similar ICE "arrest warrants" are only requests to local officials to hold prisoners and are not signed off on by a judge, activists have long pointed out. In 2015, Virginia Attorney General Mark Herring issued a nonbinding opinion saying local authorities did not have to cooperate with ICE and should release prisoners when they are eligible whether or not ICE has requested a detainer. In April, the Culpeper County Sheriff's Office signed an agreement with ICE that allows sheriff deputies in the county to enforce federal civil immigration laws. The lawsuit deals with prisoners who were held past their release dates before that agreement went into place. [GN] DIOCESE OF PITTSBURGH: Suit Seeks Disclosure of Sexual Abuses ------------------------------------------------------------- Rick Lee, writing for York Daily Record, reports that a Verona man and a Catholic school kindergartner are the representative plaintiffs in a class action suit seeking the full disclosure of all Catholic dioceses' records concerning sexual abuse by priests. The complaint was filed on Sept. 17 in Pittsburgh while untold numbers of people who were allegedly sexually assaulted by predatory priests wait for the Pennsylvania legislature to determine if they have a "window of justice" to seek legal redress. The adult plaintiff, Ryan O'Connor, says he was abused by a priest between the ages of 10 and 12. O'Connor says he remains a member of the Catholic Church, and his children attend Catholic school. The child plaintiff is represented in the suit by his mother, Kristen Hancock, who is active in her son's school and volunteers as a homeroom mother. Individually, they represent two classes of plaintiffs in the suit -- survivors of priest abuse and children in Catholic schools who potentially are at risk of priest abuse. Filed in Allegheny Common Pleas Court, the lawsuit alleges that eight Pennsylvania dioceses, seven bishops and an archbishop named as defendants have continued to protect, support and cover for predatory priests. The complaint asks the court to order the defendants to: -- Prove they have met their mandatory child abuse reporting requirements and given the identities of all predatory priests to law enforcement; -- Disclose all further information and records in their position pertaining to the abuse of children by members of the clergy; -- Allow others to provide additional information concerning abuse allegations either as victims or witnesses; -- Admit that the illegal, abusive acts occurred; -- Publicly acknowledge their wrongdoing; -- And, be compelled to immediately disclose the identity of individuals they know to be dangerous to children. The suit contends the release of all information will allow parents and caretakers to protect their children. The suit further contends that failure to release information that validates the abuse allegations is, in itself, "retributive" and "pits survivors against the denials of extremely formidable authority figures and leads to years of emotional and psychological harm." The complaint notes that the recent grand jury report that identified 301 predatory priests in Pennsylvania "emphasized it did not believe the report identified all predator priests and that many victims never came forward." "Lack of a complete accounting and disclosure . . . constitutes a clear and present danger," the suit concludes. The plaintiffs are not seeking any monetary damages, but are requesting attorney and expert witness fees and "any and all other legal or equitable relief that the court may deem proper and just." Benjamin Sweet, one of the attorneys representing the plaintiffs, said the Catholic church is "meticulous" about records, and he believes there are files and information that "contain damaging information" that have not been turned over to law enforcement or shared with the public. He said that Mr. O'Connor had been "grappling with whether he wanted to go public with this" for "20-something years." The lawsuit is "a real act of courage on his part," Sweet said. Rachel A. Bryson, executive director of public relations for the Diocese of Harrisburg, said on Sept. 17 that their attorneys have just received a copy of the suit and are reviewing it. The defendants: -- The Roman Catholic Dioceses of Pittsburgh, Allentown, Erie, Greensburg, Harrisburg, Scranton and Altoona-Johnstown and the Archdiocese of Philadelphia; -- Archbishop Charles Joseph Chaput and Bishops Alfred Andrew Schlert, Mark Leonard Bartchak, Lawrence T. Persico, Edward C. Malesic, Rronald William Gainer, David Zubic and Joseph Bambera. [GN] DOLLAR TREE: Continues to Defend Ex-Store Staff's Suit in Florida ----------------------------------------------------------------- Dollar Tree, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended August 4, 2018, that the company continues to defend a putative class action suit filed in Florida state court. In April 2016, the Company was served with a putative class action in Florida state court brought by a former store employee asserting the Company violated the Fair Credit Reporting Act in the way it handled background checks. The plaintiff is seeking statutory damages of $100 to $1,000 per violation for the disclosure form claims. No further updates were provided in the Company's SEC report. Dollar Tree, Inc. operates discount variety retail stores in the United States and Canada. It operates through two segments, Dollar Tree and Family Dollar. Dollar Tree, Inc. was founded in 1986 and is headquartered in Chesapeake, Virginia. DUN AND BRADSTREET: Kirk Seeks to Halt Sale to CC Capital --------------------------------------------------------- Robert Kirk, individually and on behalf of all others similarly situated, Plaintiff, v. The Dun & Bradstreet Corporation, Cindy Christy, L. Gordon Crovitz, James N. Fernandez, Paul R. Garcia, Anastassia Lauterbach, Thomas J. Manning, Randall D. Mott and Judith A. Reinsdorf, Defendants, Case 18-cv-01455 (D. Del., September 19, 2018) seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Dun and Bradstreet by CC Capital, Cannae Holdings and funds affiliated with Thomas H. Lee Partners, L.P.; rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger; as well as costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Dun & Bradstreet's stockholders will receive $145 in cash for each share of Dun & Bradstreet common stock they hold. The complaint says the Defendants' registration statement omits Dun and Bradstreet's financial projections, relied upon by the former's financial advisors, J.P. Morgan Securities LLC in connection with the rendering of their fairness opinions. Dun & Bradstreet is a provider of business information and technology solutions, which help its customers reduce credit risk, manage business relationships, and collect cash and receivables. The Company's databases include information regarding both public and private companies around the world. [BN] Plaintiff is represented by: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New Yor006B, NY 10017 Telephone: (212) 983-9330 Email: nfaruqi@faruqilaw.com jwilson@faruqilaw.com - and - Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 20 Montchanin Road, Suite 145 Wilmington, DE 19807 Tel: (302) 482-3182 Email: mvangorder@faruqilaw.com EQUIFAX INFORMATION: Faces Thomas FCRA Suit in Virginia ------------------------------------------------------- A class action lawsuit has been filed against Equifax Information Services, LLC. The case is styled as Mark William Thomas, Bertram M. Brown, C. Ralph Copeland on behalf of themselves and anyone similarly situated, Plaintiffs v. Equifax Information Services, LLC, Defendant, Case No. 3:18-cv-00684-MHL (E.D. Va., Oct. 9, 2018). The Plaintiff filed the case under the Fair Credit Reporting Act. Equifax Information Services LLC collects and reports consumer information to financial institutions. The company was formerly known as Equifax Credit Information Services Inc. and changed its name to Equifax Information Services LLC in June 2004. The company was incorporated in 1937 and is based in Atlanta, Georgia. Equifax Information Services LLC operates as a subsidiary of Equifax Inc.[BN] The Plaintiffs are represented by: Leonard Anthony Bennett, Esq. Consumer Litigation Associates 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Phone: (757) 930-3660 Fax: (757) 930-3662 Email: lenbennett@clalegal.com - and - Matthew James Erausquin, Esq. Consumer Litgation Associates PC (Alex) 1800 Diagonal Rd, Suite 600 Alexandria, VA 22314 Phone: (703) 273-7770 Fax: (888) 892-3513 Email: matt@clalegal.com ESPERION THERAPEUTICS: 6th Cir. Flips Dismissal Securities Suit --------------------------------------------------------------- The United States Court of Appeals, Sixth Circuit, issued an Opinion reversing the District Court's judgment granting Defendant's Motion to Dismiss in the case captioned KEVIN L. DOUGHERTY, Plaintiff, RONALD E. WALLACE and WALTER J. MINETT, individually and on behalf of all others similarly situated, Movants-Appellants, v. ESPERION THERAPEUTICS, INC.; TIM M. MAYLEBEN, Defendants-Appellees. No. 17-1701. (6th Cir.). In this case, the district court held that the Plaintiffs, certain stockholders of Esperion Therapeutics, failed to adequately plead a strong inference that Esperion CEO Tim Mayleben willfully or recklessly made misleading statements to investors following a meeting with the FDA regarding the company's new cholesterol drug. The Plaintiffs, the purchasers of Esperion common stock between August 18 and September 28, brought this class action against Esperion and Mayleben for violating Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as SEC Rule 10b-5. Their amended complaint alleges that Esperion misled investors by falsely stating that the FDA would not require a completed CVOT prior to approval of ETC-1002, causing Esperion stock to trade at artificially inflated levels during the class period. When the FDA's final meeting minutes forced the company to reveal that the FDA might indeed require a completed CVOT before approving the drug, the Plaintiffs say, Esperion stock plummeted. The court further held that Esperion's statements were not reckless because they were based upon the company's knowledge that the FDA had never before required a company to complete a CVOT prior to approval of a drug similar to ETC-1002. Last, the district court held that Esperion's statements fell within the Private Securities Litigation Reform Act's (PSLRA) safe harbor provision because they served as the basis for later forward-looking statements by the company. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. To succeed on their claims under Section 10(b) of the 1934 Act and SEC Rule 10b-5, the Plaintiffs must prove six elements: (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. The Plaintiffs' theory of scienter is straightforward. After meeting with the FDA in August, Esperion issued statements saying that the FDA told Esperion that it would not need to complete a CVOT prior to approval in the high-unmet-need patient population, and that the FDA would continue to consider lower LDL-cholesterol levels as a proxy for improved heart health. But after the FDA published its final minutes from the End-of-Phase 2 meeting, Esperion issued statements saying that the FDA might require a completed Cadiovascular Outcomes Test (CVOT) before approving ETC-1002, and that there was some doubt regarding whether lower LDL-cholesterol would remain an acceptable proxy. According to the Plaintiffs, the only explanation for this discrepancy is that Esperion's August statements regarding what transpired at the meeting were knowingly or recklessly false. After all, according to administrative guidance, the FDA's minutes are the official record of what transpired at the End-of-Phase 2 meeting. Therefore, there should have been no substantial difference between the FDA's minutes and Esperion's original account of the meeting. Esperion offers two possible explanations for the differences between its August and September statements. The company first says that Esperion's September statements were made with the benefit of further information not available in August, the FDA's final minutes. In other words, Esperion suggests that the FDA's minutes did not accurately reflect what transpired at the End-of-Phase 2 meeting. Second, Esperion suggests that it might have left the meeting with a different impression than the FDA minutes ultimately reflected. Under this theory, the FDA accurately stated its positions during the meeting, but the company's executives simply misunderstood what the FDA told them. Esperion then repeated those mistaken beliefs along with significant cautionary language—to its investors in August, and later corrected its statements once the FDA published its minutes. Neither explanation, however, is more plausible than the knowing or reckless fraud alleged by Plaintiffs. Esperion provides no reason why the FDA would have changed its position following the End-of-Phase 2 meeting. Granted, the FDA has a dispute resolution procedure through which drug sponsors can seek changes to the minutes when there are significant differences in understanding" between the FDA and the sponsor. This lends credence to Esperion's argument that the FDA's minutes sometimes differ from what actually transpires at a meeting. But here, Esperion did not avail itself of the dispute resolution procedure, even though the FDA's minutes (according to Esperion) represented a material shift from what the FDA told the company in August. Esperion argues that it could not have gained any advantage from requesting revised minutes, since the FDA could still have required the company to complete a pre-approval CVOT. One advantage readily comes to mind: removing the basis for this suit. Although it is possible that the FDA's minutes differed from what was actually said during the End-of-Phase 2 meeting, this explanation is no more plausible than Plaintiffs' inference that Esperion knowingly and deliberately misrepresented the FDA's statements. The Plaintiffs allege facts, that the FDA meeting minutes reflect what was said during the End-of-Phase 2 meeting, and that what was said at that meeting was inconsistent with what Esperion told its investors in August that most assuredly support a strong inference that the company knew its statements were false. At the very least, the Plaintiffs' allegations support a strong inference that Esperion recklessly misstated to its investors what the FDA said during the meeting. The district court therefore erred by concluding that the Plaintiffs' amended complaint failed to adequately allege scienter. A full-text copy of the Sixth Circuit's September 27, 2018 Opinion is available at https://tinyurl.com/ycls45g5 from Leagle.com. ARGUED: Steven F. Hubachek, ROBBINS GELLER RUDMAN & DOWD LLP, 655 West Broadway, Suite 1900 San Diego, CA 92101, for Appellants. Deborah S. Birnbach -- dbirnbach@goodwinlaw.com -- GOODWIN PROCTER LLP, Boston, Massachusetts, for Appellees. ON BRIEF: Steven F. Hubachek, ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, California, for Appellants. Deborah S. Birnbach, Kevin P. Martin -- kmartin@goodwinlaw.com -- Adam Slutsky -- aslutsky@goodwinlaw.com -- Joshua J. Bone -- jbone@goodwinlaw.com -- GOODWIN PROCTER LLP, Boston, Massachusetts, for Appellees. ESSENTIA WATER: Kennedy Disputes Bottled Water's Health Benefits ---------------------------------------------------------------- Keith Kennedy, individually and on behalf of all others similarly situated, Plaintiff v. Essentia Water, LLC, Defendant, Case No. 18-cv-05257, (E.D. N.Y., September 19, 2018) seeks preliminary and permanent injunctive relief; monetary damages and interest, including treble and punitive damages, pursuant to the common law; costs and expenses, including reasonable fees for attorneys and experts; and such other and further relief pursuant to New York General Business Laws. Essentia Water manufactures, distributes, markets, labels and sells water products under the "Essentia" line in various sizes, including 33.8 oz. Kennedy disputes the health benefits claim by Essentia, saying that there no causality between alkalinized foods and a change in blood viscosity, that the alkalinized water achieved a reduction in blood viscosity by any effect from the alkalinity of the water is negated by the acids present in the stomach and that the presence of electrolytes likely caused the water to be absorbed better by the body. [BN] Plaintiff is represented by: Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 1 Penn Plaza, Suite 2527 New York, NY 10119 Tel: (212) 792-0046 Email: joshua@levinepstein.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 891 Northern Blvd., Suite 201 Great Neck, NY 11021 Tel: (516) 303-0552 Email: spencer@spencersheehan.com ESTER C CO: Court Grants Summary Judgment Bid in Hughes Suit ------------------------------------------------------------ In the case, PATRICK HUGHES and NAFISE NINA HODJAT, Plaintiffs, v. THE ESTER C COMPANY, NBTY, INC., and NATURESMART, LLC, Defendants, Case No. 12-CV-0041 (PKC) (GRB) (E.D. N.Y.), Judge Pamela K. Chen of the U.S. District Court for the Eastern District of New York granted the Defendants' motion for summary judgment in its entirety and dismissed the action. On Jan. 4, 2012, Plaintiffs Hughes and Hodjat initiated the putative class action against Defendants The Ester C Co., NBTY, Inc., and NatureSmart LLC, alleging that the Defendants' labeling of their "Ester-C" vitamin C supplements as "The Better Vitamin C" is unlawful, deceptive, and misbranded. On Sept. 30, 2016, the Court denied the Plaintiffs' motion to certify a nationwide class, as well as California and Missouri subclasses. Pending before the Court is the Defendants' motion for summary judgment as to the Plaintiffs' individual claims filed on Jan. 19, 2018. The Plaintiffs filed their opposition, under seal, on Feb. 26, 2018. In it, the Plaintiffs withdrew their common law claims for intentional and negligent misrepresentation. The Defendants filed their Reply Memorandum Brief with the Court earlier, on Jan. 19, 2018, noting the Plaintiffs' withdrawal of these claims. Thus, the remaining claims in the action are the Plaintiffs' individual claims, alleging: (1) as to Plaintiff Hodjat, violations of California's Consumer Legal Remedies Act ("CLRA"), False Advertising Law ("FAL"), Unfair Competition Law ("UCL"), and the California "Sherman Law"; (2) as to Plaintiff Hughes, violations of Missouri's Merchandising Practices Act ("MMPA"); and (3) as to both the Plaintiffs, a New York common law "unjust enrichment" claim. Judge Chen finds that the Plaintiffs offer nothing more than their own conclusory allegations and "anecdotal" testimony to show what implied claims Ester-C purportedly conveyed. This is plainly insufficient to create a genuine issue of material fact as to whether the statements on Ester-C's labeling conveyed the alleged implied disease claims. The record otherwise contains no evidence that a broad cross-section of reasonable consumers interpret the challenged statements in the manner the Plaintiffs allege. Accordingly, the Defendants are entitled to summary judgment solely on this ground with respect to the Plaintiffs' false advertising and misrepresentation claims under the CLRA, FAL, UCL, and MMPA. The Plaintiffs have similarly failed to offer any evidence to show the material falsity of the slogan, "The Better Vitamin C®," which they allege conveys the implied statement that Ester-C is more effectively absorbed into the human body than ascorbic acid. The Plaintiffs have disclosed no expert testimony concerning the relative bioavailability or absorbability of Ester-C and other forms of vitamin C, such as ascorbic acid. The Judge holds that the Plaintiffs' failure to offer any expert evidence to establish the material falsity or deception element of their false advertising and misrepresentation claims, in itself, compels summary judgment for the Defendants on the Plaintiffs' false advertising and misrepresentation claims under the UCL, CLRA, FAL, and MMPA. Nowhere is the gravamen of Plaintiff Hodjat's misbranding claims more transparent than in her Amended Complaint: The Sherman Law provides that a product is misbranded if its labeling is false or misleading in any particular. Here, the Judge finds, the clear predicate violations of the Plaintiff's UCL misbranding claims are the false or misleading advertising provisions of the Sherman Law. Given that Hodjat's UCL misbranding claims are based on the false advertising and misrepresentation provisions of the Sherman Law, they fail for the same reasons as her other claims, i.e., insufficient evidence to satisfy the reasonable consumer standard or establish the falsity of the implied disease claims alleged. The Defendants, therefore, are entitled to summary judgment as to Hodjat's three UCL misbranding claims. Because the Plaintiffs have failed to develop any evidence to show that the implied disease claims even exist, Hodjat is unable to show that the Defendants violated federal regulations, so as to relieve Hodjat of having to prove all of the elements of her UCL misbranding claims. For this reason, the Judge thus finds Plaintiff Hodjat's UCL misbranding claims cannot survive summary judgment. Finally, the Judge finds that because the Plaintiffs' unjust enrichment claim simply duplicates, or replaces, these conventional contract or tort claims, it cannot survive summary judgment. For the foregoing reasons, Judge Chen granted the Defendants' motion for summary judgment. The Clerk of the Court is respectfully directed to enter judgment and close the case accordingly. A full-text copy of the Court's Sept. 4, 2018 Memorandum and Order is available at https://is.gd/mXJEnf from Leagle.com. Patrick Hughes, individually and on behalf of others similarly situated, Plaintiff, represented by George Volney Granade, II, Reese LLP, Kim Richman, Reese Richman LLP, Michael Robert Reese, Reese Richman LLP, Alvin C. Paulson, Becker, Paulson, Hoerner & Thompson, P.C., Jeffrey A. Leon, Quantum Legal LLC, pro hac vice, Kevin T. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., Patrick J. Sheehan -- psheehan@whatleykallas.com -- Whatley Drake & Kallas LLC & Zachary A. Jacobs, Complex Litigation Group LLC. Nafise Nina Hodjat, Plaintiff, represented by George Volney Granade, II, Reese LLP, Michael Robert Reese, Reese Richman LLP, Alvin C. Paulson, Becker, Paulson, Hoerner & Thompson, P.C., Jeffrey A. Leon, Quantum Legal LLC, pro hac vice, Kevin T. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., Patrick J. Sheehan, Whatley Drake & Kallas LLC & Zachary A. Jacobs, Complex Litigation Group LLC. The Ester C Company, NBTY, Inc. & Naturesmart, LLC, Defendants, represented by Michelle Waller Cohen -- mcohen@pbwt.com -- Patterson Belknap Webb & Tyler LLP, Steven Alan Zalesin -- sazalesin@pbwt.com -- Patterson, Belknap, Webb & Tyler LLP, Jackson Taylor Kirklin -- jtkirklin@pbwt.com -- Patterson Belknap Webb & Tyler LLP & Jonah Moses Knobler -- jknobler@pbwt.com -- Patterson Belknap Webb & Tyler. EXTREME NETWORKS: Agreement Reached in Securities Suit ------------------------------------------------------ Extreme Networks, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that an agreement in principle reached in the case entitled, In re Extreme Networks, Inc. Securities Litigation. On October 23 and 29, 2015, punitive class action complaints alleging violations of securities laws were filed in the U.S. District Court for the Northern District of California against the Company and three of its former officers (Charles W. Berger, Kenneth B. Arola, and John T. Kurtzweil). Subsequently, the cases were consolidated (In re Extreme Networks, Inc. Securities Litigation, No. 3:15-CY-04883-BLF). Plaintiffs allege that defendants violated the securities laws by disseminating materially false and misleading statements and concealing material adverse facts regarding the Company's financial condition, business operations and growth prospects. Plaintiffs seek unspecified damages on behalf of a purported class of investors who purchased the Company's common stock from September 12, 2013 through April 9, 2015. On June 28, 2016, the Court appointed a lead plaintiff. On September 26, 2016, the lead plaintiff filed a consolidated complaint. On November 10, 2016, defendants filed a motion to dismiss, which the Court granted with leave to amend on April 27, 2017. On June 2, 2017, the lead plaintiff filed an amended complaint, which, on July 10, 2017, defendants again moved to dismiss. In a March 21, 2018 Order (the "March 2018 Order"), the Court granted in part and denied in part the defendants' motion. The March 2018 Order narrowed the scope of the case, but allowed certain claims to proceed. On July 18, 2018, the parties to the litigation commenced a mediation process with the assistance of a professional mediator and the Company believes the parties have arrived at an agreement in principle which they are in the process of documenting and which is subject to court approval. Extreme Networks, Inc. provides software-driven networking solutions for enterprise customers worldwide. Extreme Networks, Inc. was founded in 1996 and is headquartered in San Jose, California. FACEBOOK INC: Privacy Class Action Mulled in Australia ------------------------------------------------------ Luke Costin, writing for Australian Associated Press, reports that Australians may distrust Facebook but six months after the Cambridge Analytica scandal we are still flocking in record numbers to the social media giant's platforms. About 13 million across the nation log on to Facebook every day while another three million people check in at least once a month. The Mark Zuckerberg creation is also seeing growth in its other key apps -- Messenger and Instagram -- which both boast more than nine million users, a spokeswoman told AAP. That's despite Facebook's privacy battles and it being named our least trusted media brand in a Roy Morgan poll this year. Sept. 17 marks six months since news first broke of the CA privacy breach involving a potential 87 million Facebook accounts, including those of 310,000 Australians. The British political consultancy agency had used data mined from Facebook accounts to conduct psychological profiling for use in political campaigns. Facebook said that data was "improperly shared" and banned several apps that scraped data in that way. It also admitted about the same time most of its two billion users had had their phone number and email address publicly exposed through one of its search features. Curtin University internet studies expert Tama Leaver says people might still be logging on but their time spent in each session had likely dropped. That's in part because of News Feed changes introduced in January that prioritised friends' posts over updates from pages and news organisations. "But I think users would be much more circumspect about what they share and how much they use the platform," Associate Professor Leaver told AAP. He said the privacy issues had prompted the platform to take up an expensive billboard and TV ad campaign to reclaim the messaging about what Facebook means. Research suggested young people turned to the platform to organise events but mainly communicated via other platforms, Prof Leaver said. "Facebook is almost like stationery -- you have to have it for some stuff but it is no longer the social core of their lives," he said. "The fact Facebook and Instagram are trying to get more and more marketing and businesses into the stories format suggests that's where they see their growth as well." In Australia, the social giant is still facing the threat of a $2.1 million fine, with the federal privacy commissioner now in the sixth month of her investigation into the Cambridge Analytica issue. The privacy commissioner's office declined to comment on the progress of the probe. A potential class action dependent on the commissioner's findings is being bankrolled by litigation funding provider IMF Bentham. Facebook says it takes seriously its responsibility to be a "positive force" in the world and points to the changes it has made to protect people's data and its efforts to be more transparent about how it operates. Opting out of advertising based on third-party data is possible as are new ways to delete old posts and stop rarely used third-party apps from accessing profile data. Facebook will also soon tell Australian users exactly how long they've spent on its app. "We're committed to improving Facebook for everyone in a way that enables communities to build and flourish, while safeguarding people's private data," a spokeswoman told AAP. Belinda Barnet, a social media and data privacy expert, said Facebook has made significant changes since March, including ending its partnership with data brokers and ensuring users know where to change privacy settings or download their data. But the Swinburne University lecturer doesn't think it has gone far enough and wants to see a change in the business model driven by users' data. "I think we are seeing more public awareness about that business model," she told AAP. "We're seeing an increase in government regulation and that, long-term, is probably the only way we can do it." Regulation might do what privacy concerns could not -- stop the behemoth's unyielding growth. [GN] FIAT CHRYSLER: Sued Over Cherokee 9-Speed Transmission Issues ------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that Jeep Cherokee 9-speed transmission issues have caused a proposed class-action lawsuit that alleges model year 2016 Cherokees suddenly accelerate, decelerate and lose power while driving. According to plaintiff Lisa Cummings, Fiat Chrysler (FCA US) knows the 9-speed transmissions are defective but conceals the defects to keep selling the SUVs. Ms. Cummings purchased a new 2016 Jeep Cherokee and has allegedly experienced multiple transmission issues, including when her grandchildren were riding with her. The plaintiff says she was driving at about 70 miles per hour when the Jeep Cherokee quickly decelerated to a speed of around 20 to 25 miles per hour. The semi-truck behind Ms. Cummings nearly hit the 2016 Cherokee, and the plaintiff claims she now avoids driving the Jeep on the freeway. The Cherokee allegedly does not change gears reliably and can sometimes take a minute or longer for the 9-speed transmission to shift from reverse to drive. Ms. Cummings says within a week of buying the Jeep she returned it to the FCA dealership and complained about the acceleration and deceleration problems. Technicians allegedly "flashed" the Cherokee and told the plaintiff the transmission wouldn't cause her additional issues. The plaintiff says she has taken the Cherokee back to the dealer about eight times and complained about the transmission problems and how they cause safety hazards while driving, but FCA and its dealers allegedly deny there are any problems. The 9-speed transmissions are manufactured by ZF Friedrichshaffen AG and installed in thousands of 2016 Jeep Cherokees. According to the plaintiff, the SUVs lose power, have shifting problems, make sudden forward movements and finally lose power when the transmissions fail. Ms. Cummings claims Chrysler misled consumers about the safety of the 2016 Cherokees when the automaker allegedly knew in 2013 about the transmission issues. In addition to the dangers of driving the Jeeps, the lawsuit alleges customers were convinced to buy or lease the Cherokees only because FCA omitted valuable information about the transmissions. The lawsuit references transmission complaints from 2016 Jeep Cherokee owners, and many of those complaints were submitted to CarComplaints.com. "This piece of junk vehicle has done nothing but give me problems since the day I bought it!!! Now the hunk of junk slams into gear when driving. It feels like you get rear ended. Oh and don't let me be going down a steep hill that I have to brake on, the rpm with ramp all the way into the red zone and never downshift until I slam the brakes as hard as I can." "My wife is the primary driver of this 2016 Jeep Cherokee, and when we bought this, the salesman was pitching his whole "Jeep Reliability" speech! On her way from work, she called me and said that the Cherokee just all of a sudden started to lunge, and that it felt like it wanted to stall. The service department was already closed, but yesterday (Dec 15, 2017) they called her and said that the entire transmission was shot! They would have to replace the whole thing -- so new transmission supposedly coming in from Detroit (2 weeks) and another week to do the work!" According to the class-action, Chrysler issued technical service bulletins for the 2016 Jeep Cherokees after driver complaints. On August 31, 2016, FCA issued TSB SB-21-013-16 which informed dealers what to do if 2016 Cherokee customers "indicated that their transmission shift quality may be erratic." In February 2017, FCA issued TSB 18-018-17 to its dealers which superseded TSB 18-014-16 issued on September 3, 2016. The February 2017 bulletin concerned 2016 Cherokees that experienced "[a] Transmission Tip-In Bump (when accelerating out of 4th gear)." Another bulletin (21-008-17) was issued to dealers in April 2017 covering the 2016 Jeep Cherokee concerning the procedure to follow for customers who reported: "[a] harsh 4-5 upshift[,]" "5-4 coast down transmission shift quality enhancement[,]" "[l]ess than desired low speed drivability and response to accelerator pedal input[,]" "[l]ess than desired transmission shift quality[,]" a"[t]ransmission [that] is slow to upshift after releasing the accelerator pedal[,]" "[l]ess than optimal transmission shift timing, driving up and down hills[,]" or "[l]ess than desired Engine Stop/Start re-engagement or smoothness." The bulletins allegedly did no good as the lawsuit alleges dealer repairs haven't solved the 9-speed transmission issues and Cherokee owners are the ones paying for FCA's mistakes. The Jeep Cherokee 9-speed transmission lawsuit was filed in the U.S. District Court for the Northern District of New York - Lisa Cummings, et al., v. FCA US LLC. The plaintiff is represented by Finkelstein, Blankinship, Frei-Pearson & Garber, LLP. [GN] FIRST LIBERTY: Filing of Third Amended Brewton Suit Denied ---------------------------------------------------------- In the case, CHANDRA H. BREWTON, Plaintiff, v. THE FIRST LIBERTY INSURANCE CORPORATION, Defendant, Case No. 5:14-CV-436(MTT) (M.D. Ga.), Judge Marc T. Treadwell of the U.S. District Court for the Middle District of Georgia, Macon Division, denied Brewton's motion to file a third amended complaint. The case is one of several putative class actions filed in the Court in which the Plaintiffs, all of whom are represented by the same lawyers, allege that the insurance companies providing their homeowners coverage have denied that their policies provide coverage for the diminished value of property damaged as a result of a loss that is overwise covered by their policies. Basically, the Plaintiffs want their insurers to accept what has been clearly established by the Georgia Supreme Court -- when the value of a home has decreased as the result of a covered loss even though the home has been fully repaired, the insurer must compensate the insured for that diminished value. The Georgia Supreme Court has also held that when an insurer denies coverage for diminished value and has refused to assess a loss for diminished value, a court appropriately can order the insurer to assess for diminished value. When the Plaintiffs' lawyers filed the suit on behalf of Brewton, they thought First Liberty was one of those insurers that stubbornly refused to accept that its policy covered diminished value. Only long after filing suit did Brewton's lawyers discover they were wrong. For First Liberty, in response to the Georgia Supreme Court's rulings, had acknowledged that Brewton's policy covered diminished value and had assessed her loss to determine whether the value of her home had diminished notwithstanding the repairs paid for by First Liberty. Given that, the Court granted First Liberty's motion for summary judgment on Brewton's claim that First Liberty did not assess her loss for diminished value. Brewton has submitted further evidence and asked the Court to reconsider. Brewton asks the Court to fashion a remedy that goes beyond the limited remedy created by the Georgia Supreme Court in State Farm Mut. Auto. Ins. Co. v. Mabry. Even though First Liberty acknowledged her policy covered her loss, and even though it assessed her loss to see if the value of her home had diminished, she wants the Court to order First Liberty to do another assessment, what she calls a proper assessment. Brewton has also moved to amend her complaint. She seeks leave to amend to add allegations related to, and claims arising from, First Liberty's scheme that was created and implemented to give the appearance that it was complying with its duty under Georgia law and its insurance policies to assess for and pay diminished value when, in reality, First Liberty never intended to do so. Specifically, Brewton wishes to add claims for violations of the Georgia Racketeer Influenced and Corrupt Organizations ("RICO") Act based on First Liberty's theft by taking and theft by deception of Brewton and other insureds' contract rights and services. Judge Treadwell finds that Brewton contests the adequacy of the assessment she received for a covered loss, not the denial of coverage and the total failure to assess. Simply put, she asserts a claim not sanctioned by Mabry, and the Judge sees no reason to expand Mabry to create such a claim. Nothing has changed since the Court's previous assessment of the case: Brewton's claim is not a Mabry/Royal Capital claim. Nothing in Georgia law supports Brewton's new and un-pleaded theory that an insured can bring a stand-alone claim for the failure to properly assess a covered loss. As for Brewton's motion to amend her complaint, the Judge finds that Brewton has been afforded the chance to conduct discovery, and, he finds as a matter of law that Brewton cannot show that First Liberty conducted a "sham" assessment for diminished value that was not an assessment at all. The same reasons for that finding require the finding that Brewton's Georgia RICO claims fail as a matter of law. Accordingly, in the alternative to finding that the amendments are futile, the Judge finds that the amendments would result in unfair prejudice and constitute undue delay. For the reasons discussed, Judge Treadwek declined to alter the Court's previous order granting summary judgment on Brewton's failure to assess claims, and denied Brewton's motion to file a third amended class action complaint. Finally, as a result of his order dismissing Brewton's failure to assess claim, only her failure to pay diminished value claim remains. It seems certain that that claim is not sufficient to satisfy the jurisdictional threshold for diversity jurisdiction. Accordingly, the Plaintiff will show cause no later than Sept. 25, 2018 why the case should not be dismissed for lack of subject matter jurisdiction. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/48at8E from Leagle.com. CHANDRA H BREWTON, Plaintiff, represented by ADAM P. PRINCENTHAL -- adam@princemay.com -- C. COOPER KNOWLES, Law Office of C. Cooper Knowles, LLC, CLINTON W. SITTON, JAMES C. BRADLEY -- jbradley@rpwb.com -- KIMBERLY KEEVERS PALMER -- kkeevers@rpwb.com -- MATTHEW A. NICKLES -- mnickles@rpwb.com -- MICHAEL J. BRICKMAN -- mbrickman@rpwb.com -- NINA FIELDS BRITT & RICHARD KOPELMAN . THE FIRST LIBERTY INSURANCE CORPORATION, Defendant, represented by BOWEN REICHERT SHOEMAKER, US ATTORNEY'S OFFICE, CARI K. DAWSON -- cari.dawson@alston.com -- ALSTON & BIRD, DANIEL F. DIFFLEY -- dan.diffley@alston.com -- ALSTON & BIRD & DAVID B. CARPENTER -- david.carpenter@alston.com -- ALSTON & BIRD. FIRSTSOURCE ADVANTAGE: Choi Files FDCPA Suit in New York -------------------------------------------------------- A class action lawsuit has been filed against Firstsource Advantage, LLC. The case is styled as Soojeong Choi individually and on behalf of all others similarly situated, Plaintiff v. Firstsource Advantage, LLC, Defendant, Case No. 1:18-cv-05662 (E.D. N.Y., Oct. 10, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Firstsource Advantage, LLC offers collections and recovery solutions. It provides debt recovery services for credit card issuers, retail banking and mortgage. Firstsource Advantage, LLC was formerly known as Firstsource LLC and changed its name in February 2007. The company was founded in 1995 and is based in Amherst, New York. As of October 8, 2004, Firstsource Advantage, LLC operates as a subsidiary of Firstsource Solutions Limited.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com FOUR SEASONS: Court Narrows Claims in Hualalai Club Membership Suit ------------------------------------------------------------------- The United States District Court for the District of Hawaii issued an Order granting Defendant's Motion to Dismiss Counts II, IX and X in the case captioned CHRISTOPHER ZYDA, On Behalf of Himself and All Others Similarly Situated, Plaintiffs, v. FOUR SEASONS HOTELS AND RESORTS FOUR SEASONS HOLDINGS INC.; FOUR SEASONS HUALALAI RESORT; HUALALAI RESIDENTIAL, LLC (dba HUALALAI REALTY); HUALALAI INVESTORS, LLC; KAUPULEHU MAKAI VENTURE; HUALALAI DEVELOPMENT COMPANY; HUALALAI VILLAS & HOMES; HUALALAI INVESTORS, LLC; HUALALAI RENTAL MANAGEMENT, LLC; and DOES 1-100, Defendants. Civil No. 16-00591 LEK. (D. Haw.). The Plaintiffs allege the Defendants induced them and others to make purchases within Hualalai by promising, inter alia, that the Plaintiffs and others would enjoy membership in the Hualalai Club and that their family and guests would be able to enjoy facilities in a world-class resort environment without additional guest fees. After the Plaintiffs and other Class members had committed substantial resources, the Defendants failed to maintain and provide adequate facilities to handle the growing population. The Plaintiffs allege the Defendants continued to build homes in Hualalai and sell new Club memberships to non-Hualalai residents, while falsely complaining that Hualalai homeowners, their families, and their guests were overburdening the Resort. The Plaintiffs assert claims for violation of the Condominium Property Act (Count I); violation of the Uniform Land Sales Practices Act, (ULSPA and Count II), unfair methods of competition (UMOC) and unfair or deceptive acts or practices (UDAP) (Count III), promissory estoppel/detrimental reliance (Count IV) violation of the duty of good faith and fair dealing (Count V), negligent misrepresentation (Count VI), estoppel (Count VII), unjust enrichment (Count VIII), organized crime, pursuant to Haw. Rev. Stat. Chapter 842 (Count IX) and breach of fiduciary and other common law duties (Count X). STANDARD Following Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009) Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007), we have settled on a two-step process for evaluating pleadings: First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Count II - ULSPA Haw. Rev. Stat. Section 484-16(a) creates liability for certain persons who, in disposing of subdivided lands make an untrue statement of a material fact, or omit a material fact required to be stated in a registration statement, an application, or public offering statement or necessary to make the statements made not misleading. Section 484-16(f) states: No person shall be entitled to recover under this section unless the person has commenced action for such recovery within four years after the person's first payment of money to the subdivider in the contested transaction. The Defendants argue that the Plaintiffs' ULSPA claims are time-barred because they, respectively, purchased their lots in 2000 and 2003, which is more than four years before this action was commenced in 2015. Count II - ULSPA Haw. Rev. Stat. Section 484-16(a) creates liability for certain persons who, in disposing of subdivided lands make an untrue statement of a material fact, or omit a material fact required to be stated in a registration statement, an application, or public offering statement or necessary to make the statements made not misleading. Section 484-16(f) states: No person shall be entitled to recover under this section unless the person has commenced action for such recovery within four years after the person's first payment of money to the subdivider in the contested transaction. The Defendants argue that the Plaintiffs' ULSPA claims are time-barred because they, respectively, purchased their lots in 2000 and 2003, which is more than four years before this action was commenced in 2015. Section 484-16(a) creates liability for certain persons who, in disposing of subdivided lands make an untrue statement of a material fact, or omit a material fact required to be stated in a registration statement, an application, or public offering statement or necessary to make the statements made not misleading. Section 484-16(f) states: No person shall be entitled to recover under this section unless the person has commenced action for such recovery within four years after the person's first payment of money to the subdivider in the contested transaction. The Defendants argue the Plaintiffs' ULSPA claims are time-barred because they, respectively, purchased their lots in 2000 and 2003, which is more than four years before this action was commenced in 2015. The Plaintiffs' Count II claims are time-barred because they were commenced more than four years after their first payment of money to the subdivider in the contested transactions. Count II must therefore be dismissed. The Plaintiffs do not contend they also purchased other subdivided property from Defendants during the limitations period. Because it is clear that any amendment of the Plaintiffs' claims would be futile, the dismissal must be with prejudice. However, because it is arguably possible for the Plaintiffs to add a new plaintiff whose ULSPA claim is not time-barred, the dismissal is without prejudice insofar as Plaintiffs may add a new plaintiff as to Count II only. Count IX - Organized Crime In their Count IX claim, the Plaintiffs allege: By wrongfully seeking to deprive the Plaintiffs of their property the Defendants are engaging in extortion, a prohibited offense under HRS Chapter 842. The Plaintiffs argue the Second Amended Complaint shows that extortion has occurred because it alleges the defendants are preventing the Plaintiffs from exercising their property rights by illegally demanding money they are not entitled to. Even if the Second Amended Complaint gave the Defendants fair notice which it does not that the Plaintiffs allege extortion on the theory that the Defendants announced they would wrongfully impose increased DRGFs, and then later did so, Count IX would still fail to allege extortion. Even assuming the increased DRGFs were wrongful, extortion did not occur merely because Defendants provided notice, rather than increasing the DRGFs by surprise. Because it is at least theoretically possible that Plaintiffs can cure the defects in their Chapter 842 claim in a third amended complaint, Count IX is dismissed without prejudice. Count X - Breach of Fiduciary Duty In their Count X claim, the Plaintiffs allege: Due to the Defendants exclusive control over the Resort, the Club and their actions, inactions representations and omissions, defendants owe fiduciary and other common law duties to the Class, including but not limited to those set forth in the Restatement, 3d of Property. Further, Plaintiffs allege they are entitled to general, special and punitive damages as a result of the breach. The Defendants seek dismissal of Count X on the grounds that Plaintiffs make erroneous factual allegations. According to Plaintiffs, the Hualalai Defendants are and were at all relevant times the owners, developers and in house realtors for the Hualalai Resort. In the instant Motion, Defendants argue this allegation is erroneous because certain Defendant entities neither sold Plaintiffs their lots nor represented Plaintiffs in any transaction. Although it is not clear, Plaintiffs appear to argue that, regardless of whether Defendants owed fiduciary duties, Defendants have violated other duties recognized in the Restatement (Third) of Property: Servitudes. Plaintiffs' complaint, and not their memorandum in opposition to a motion to dismiss, must give Defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Apart from pointing to the entirety of the common law and the entirety of the Restatement (Third) of Property: Servitudes, the Second Amended Complaint does not indicate what duties Defendants allegedly breached so as to entitle Plaintiffs to relief on their Count X claim. The portion of Count X alleging that Defendants breached other common law duties must also be dismissed. Moreover, even if this Court considered Plaintiffs' memorandum in opposition, it is still not clear which of the seven duties recognized in Section 6.20 of the Restatement (Third) of Property: Servitudes was allegedly breached. However, because it is at least theoretically possible that Plaintiffs can cure these defects by amendment, the dismissal of Count X is without prejudice. Accordingly, the Motion to Dismiss Organized Crime, Uniform Land Sales Practices Act, and Breach of Fiduciary Duty Counts in Class Plaintiffs' Second Amended Class Action Complaint for Damages, Declaratory, and Injunctive Relief is granted, and Counts II, IX, and X are dismissed. The dismissal of the Plaintiffs' claims in Count II is with prejudice, but the dismissal is without prejudice insofar as the Plaintiffs have leave to add a new plaintiff as to Count II only. The dismissal of Counts IX and X is without prejudice. A full-text copy of the District Court's September 27, 2018 Order is available at https://tinyurl.com/ya4sj2az from Leagle.com. Christopher Zyda, on behalf of himself and all other similarly situated & Carol Meyer, (Class Plaintiffs) On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, represented by Patrick Kyle Smith -- kyle@smithhawaii.law -- Smith Law & Terrance M. Revere -- terry@revereandassociates.com -- Revere & Associates, LLLC. Four Seasons Holdings, Inc., Hualalai Residential, LLC, doing business as Hualalai Realty, Hualalai Investors, LLC, Hualalai Rental Management, LLC & Four Seasons Hotels Limited, Defendants, represented by Barry A. Sullivan -- sullivan@smlhawaii.com -- Sullivan Meheula Lee LLP, Donald M. Falk , Mayer Brown LLP, pro hac vice, Natasha L.N. Baldauf -- baldauf@smlhawaii.com -- Sullivan Meheula Lee LLP, Patrick K. Shea -- shea@SMLhawaii.com -- Sullivan Meheula Lee LLP & William Meheula -- meheula@smlhawaii.com -- Sullivan Meheula Lee LLP. GDS HOLDINGS: Queri Sues over 38% Drop in ADS Price --------------------------------------------------- MARIA M. QUERI, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. GDS HOLDINGS LIMITED, WILLIAM WEI HUANG, and DANIEL NEWMAN, the Defendants, Case 1:18-cv-08810 (S.D.N.Y., Sept. 26, 2018), seeks to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, GDS purports to be a leading developer and operator of high-performance data centers in China. The Company is headquartered in Shanghai, China. On November 2, 2016, GDS conducted an initial public offering of American depositary shares on the NASDAQ Global Market. Since the IPO, GDS ADSs have traded on the NASDAQ under the ticker symbol "GDS". Throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, the Defendants made false and/or misleading statements and/or failed to disclose that (i) GDS had assumed significant levels of debt in order to enrich insiders by acquiring data centers from related parties; (ii) GDS had overstated the value of a number of its data centers; (iii) GDS was inflating the size of its service area, utilization rates, reported revenues, and EBITDA; and (iv) as a result, GDS's public statements were materially false and misleading at all relevant times. On July 31, 2018, Blue Orca Capital published a report alleging, inter alia, that "GDS is borrowing crippling amounts of debt to enrich insiders by acquiring data centers from undisclosed related parties which are not nearly as valuable as the Company claims." The Blue Orca report further asserted that "GDS is inflating the size of its service area, its utilization rates and therefore its reported revenues and EBITDA." On this news, GDS's ADS price fell $13.42 per share, or over 38%, to close at $21.83 per share on July 31, 2018. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says.[BN] Attorneys for Plaintiff: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan Lindenfeld, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com pdahlstrom@pomlaw.com GENERAL MOTORS: Faces Class Action in Fla. Over Oil-Guzzling SUVs ----------------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that two car owners hit General Motors with a proposed class action in Florida federal court on Sept. 10 that accuses the automaker of selling 2010-2017 Chevrolet Equinox SUVs with defective oil-guzzling engines. [GN] GRAY TELEVISION: Car Dealer Sues Over Air-time Price-fixing ----------------------------------------------------------- John O'Neil Johnson Toyota, LLC, individually and on behalf of all others similarly situated, Plaintiff, v. Gray Television, Inc., Hearst Communications, Nexstar Media Group, Inc., Tegna Inc., Tribune Media Company, Sinclair Broadcast Group, Inc. and Does 1-20,, Defendants, Case No. 18-cv-02913 (D. Md., September 19, 2018), seeks damages, injunctive relief and other relief for violation of Section 1 of the Sherman Act. Defendants are media companies who are accused by the Plaintiff of conspiring to fix, raise, stabilize, and maintain prices for commercials to be aired on broadcast television stations throughout the United States by sharing competitively sensitive information through their advertising sales teams. Plaintiff is a Toyota dealership who purchased TV ad time one or more of the Defendants. [BN] Plaintiff is represented by: Paul Mark Sandler, Esq. Eric R. Harlan, Esq. SHAPIRO SHER GUINOT & SANDLER 250 West Pratt Street, Suite 2000 Baltimore, MD 21201 Tel: (410) 385-0202 Fax: (410) 539-7611 Email: pms@shapirosher.com erh@shapirosher.com - and - Jonathan W. Cuneo, Esq. Victoria Romanenko, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street, N.E. Washington, DC 20002 Telephone: (202) 789-3960 Email: jonc@cuneolaw.com vicky@cuneolaw.com - and - Sarah Starns, Esq. David McMullan, Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square Lexington, MS 39095 Telephone: (662) 834-2488 Email: sstarns@barrettlawgroup.com dmcmullan@barrettlawgroup.com - and - Shawn M. Raiter, Esq. LARSON KING, LLP 2800 Wells Fargo Place 30 East Seventh Street St. Paul, MN 55101 Telephone: (651) 312-6500 Email: sraiter@larsonking.com GREENWAY HOME: Poole Seeks Minimum & OT Wages under FLSA -------------------------------------------------------- CARL POOLE, individually and on behalf of all similarly-situated persons, the Plaintiff, v. GREENWAY HOME SERVICES, LLC, GREENWAY HOME SERVICES OF NASHVILLE, LLC, and WHIT GREENWAY and DEVIN WILLIAMS, individually, the Defendants, Case No. 3:18-cv-00967 (M.D. Tenn., Sept. 26, 2018), seeks to recover unpaid minimum wages and/or overtime compensation pursuant to the Fair Labor Standards Act. According to the complaint, the Defendants committed violations of the FLSA by requiring and/or suffering or permitting their non-exempt employees, including Plaintiff, to routinely work for less than minimum wage and more than 40 hours per week without payment of overtime compensation. The Plaintiff currently resides in Davidson County, Tennessee, and is a citizen of the United States. Within the last three year period, Plaintiff was employed by Defendants as a non-exempt Repair Technician. Greenway Home provides plumbing, heating, AC, and appliance installation services.[BN] Attorneys for Plaintiff: Trevor Howell, Esq. HOWELL LAW, PLLC 161 Rosa Parks Blvd Nashville, TN 37203 Telephone: (615) 406 1416 E-mail: Trevor@howelllawfirmllc.com - and - Autumn Gentry, Esq. Peter F. Klett, Esq. DICKINSON WRIGHT PLLC Fifth Third Center 424 Church Street, Suite 800 Nashville, TN 37219-2392 Telephone: (615) 244 6538 E-mail: agentry@dickinsonwright.com pklett@dickinsonwright.com HAYS RECRUITMENT: Faces Adero Law Class Action Over Casuals ----------------------------------------------------------- David Marin-Guzman, writing for the Australian Financial Review, reports that a class action law firm is targeting the biggest labour hire firms in the mining industry for allegedly failing to pay $325 million in entitlements to "regular" casuals after being emboldened by a precedent-setting court decision. ACT-based firm Adero Law announced on September 21 that it is preparing class actions against Hays Recruitment, WorkPac, Programmed and One Key Resources over annual leave and other entitlements allegedly owed to 25,000 casuals in the black coal industry. The class actions, expected to be filed in the Federal Court in the next month, confirm employers' fears that a recent full court ruling on casual entitlements could spark a wave of legal action across the economy and drive businesses into insolvency. The ruling, from a case brought by the Construction, Forestry, Maritime, Mining and Energy Union, found casual WorkPac truck driver Paul Skene was entitled to accrued annual leave because he worked regular and predictable rosters, despite receiving extra loading in place of permanent employee entitlements. Australian Industry Group has estimated the decision affects between 61 per cent and 85 per cent of all casuals, from retail to healthcare, creating employer backpay liabilities between $6 billion and $8 billion. London-based litigation funder Augusta Ventures is funding the Hays, WorkPac and Programmed actions, and Adero is still seeking funding for its case against One Key Resources, which is part of global recruitment group Fircroft. The targeted companies provide the vast majority of labour workers for BHP Billiton mines in NSW and Queensland, as well as for Glencore, Yancoal and Anglo American. Earlier this year, Adero filed class actions against BHP Billiton and labour hire firms Chandler Macleod and Tesa Mining over their use of "full-time" casuals at the Mount Arthur coal mine in the Hunter Valley. 'Whole of industry' challenge Adero Law firm principal Rory Markham, Esq. said the new actions "bring to completion a whole of industry challenge". "[They] provide a pathway for up to 25,000 black coal miners to achieve an estimated underpayment exceeding $325 million," he said. "We want to see mineworkers who work to rosters planned months and years in advance treated as what they really are, permanent workers. "We hope these class actions bring an end to a practice of casualisation that has caused havoc on individuals' pay packets, communities and mineworkers' careers." The firm's underpayment estimate is based on 1100 black coal miners who have already registered their interest, which Adero says is the highest subscription level for any previously unannounced class actions. The workers' claims average five years of employment with a potential loss per worker of $62,700. Adero will rely on the Skene precedent as authority to claim minimum entitlements under the Fair Work Act but will use different legal arguments in a bid to secure more generous entitlements under the black coal award. In the case of Hays, Adero is alleging the recruitment giant has been breaching the award's prohibition on casuals since 2013 by supplying hundreds of casuals to BHP Billiton mine sites without an enterprise agreement authorising them. Hays did not respond to requests for comment. 'Urgent' legislative action needed Employers have said the class actions show Parliament must take urgent legislative action to address the uncertainty created by the Skene precedent, including by blocking casuals "double dipping" on their entitlements and defining casual in the Fair Work Act. "The class action is reportedly being funded by an overseas litigation funding firm, and demonstrates just how exposed employers and their employees right across Australia have become after the recent WorkPac v Skene decision," AiGroup chief executive Innes Willox said. "The court's decision exposes firms to being required to pay casual employees twice for various entitlements, which could drive many businesses to the wall, causing significant job losses." Mr Willox said the Fair Work Act's no-costs jurisdiction made the field attractive for litigation funders, who typically charge high commissions on damages ordered. "There is the likelihood of many additional class actions in response to the court's decision. "Unless Parliament acts quickly, the litigation likely to result from the decision will lead to a big increase in business insolvencies and a huge blow-out in the cost of the [federal government's] Fair Entitlements Guarantee scheme due to claims by casuals for annual leave and other entitlements." The FEG scheme allows employees to claim their unpaid entitlements from the government if their employer is wound up. Its costs recently blew out to $1 billion over four years. 'Exploring all options' Other law firms have also flagged they are examining legal actions over casuals in wake of the Skene precedent. Slater and Gordon, which acted for the CFMEU in the Skene case, said it was "exploring all options". A spokeswoman for Shine Lawyers said the firm "can't reveal what we're looking into just yet but can confirm that we're looking". Maurice Blackburn said it was not considering a class action on the issue. Industrial Relations Minister Kelly O'Dwyer said she is getting legal advice on the "extent to which the court's ruling raises uncertainty in the industry around casual employment".[GN] HP INC: Agreement in Principle Reached in Printer Firmware Suit --------------------------------------------------------------- HP Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended June 30, 2018, that the parties in the case entitled, In re HP Printer Firmware Update Litigation, have since reached a settlement in principle. Five purported consumer class actions were filed against HP, arising out of the supplies authentication protocol in certain OfficeJet printers. This authentication protocol rejects some third-party ink cartridges that use non-HP security chips. Two of the cases were dismissed, and the remaining cases were consolidated in the United States District Court for the Northern District of California, captioned In re HP Printer Firmware Update Litigation. The remaining plaintiffs' consolidated amended complaint was filed on February 15, 2018, alleging eleven causes of action: (1) unfair and unlawful business practices in violation of the Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq.; (2) fraudulent business practices in violation of the Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200, et seq.; (3) violations of the False Advertising Law, Cal. Bus. & Prof. Code Section 17500, et seq.; (4) violations of the Consumer Legal Remedies Act, Cal. Civ. Code Section 1750, et seq.; (5) violations of the Texas Deceptive Trade Practices ‒ Consumer Protection Act, Tex. Bus. & Com. Code Ann. Section 17.01, et seq.; (6) violations of the Washington Consumer Protection Act, Wash. Rev. Code Ann. Section 19.86.010, et seq.; (7) violations of the New Jersey Consumer Fraud Act, New Jersey Statutes Ann. 56:8-1, et seq.; (8) violations of the Computer Fraud and Abuse Act, 18 U.S.C. Section 1030, et seq.; (9) violations of the California Computer Data Access and Fraud Act, Cal. Penal Code Section 502; (10) Trespass to Chattels; and (11) Tortious Interference with Contractual Relations and/or Prospective Economic Advantage. On February 7, 2018, the plaintiffs moved to certify an injunctive relief class of "all persons in California who own a Class Printer" under the "unfair" prong of the California unfair competition statute and a class of "all persons in the United States who purchased a Class Printer and experienced a print failure while using a non-HP aftermarket cartridge during the period between March 1, 2015 and December 31, 2017" under the Computer Fraud and Abuse Act and common law trespass to chattels. On March 29, 2018, the court granted in part and denied in part HP's motion to dismiss. The court dismissed the plaintiffs' claim under the "unfair" prong of the California unfair competition statute, claims under the non-California consumer protection statutes, and claim for tortious interference with contractual relations and/or prospective economic advantage. The court also dismissed in part the plaintiffs' fraud-based claims under the California consumer protection statutes and computer hacking claims under the Computer Fraud and Abuse Act and California Computer Data Access and Fraud Act. The court denied HP's motion to dismiss with respect to the plaintiffs' claim for trespass to chattels and claim under the "unlawful" prong of the California unfair competition statute. The court granted the plaintiffs leave to amend on all of the dismissed claims, except the California Computer Data Access and Fraud Act claim to the extent it was based on two specific subsections of that statute. The parties have since reached a settlement in principle. On July 13, 2018, the court vacated the remaining dates on the case schedule and ordered that the plaintiffs file their motion for preliminary approval of the class settlement within 60 days. HP Inc. provides products, technologies, software, solutions, and services to individual consumers, small- and medium-sized businesses, and large enterprises, including customers in the government, health, and education sectors worldwide. It operates through Personal Systems and Printing segments. HP Inc. was founded in 1939 and is headquartered in Palo Alto, California. HP INC: Continues to Defend Forsyth Class Action ------------------------------------------------ HP Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended June 30, 2018, that the company continues to defend a purported class action suit entitled, Forsyth, et al. v. HP Inc. and Hewlett Packard Enterprise. This is a purported class and collective action filed on August 18, 2016 in the United States District Court, Northern District of California, against HP and Hewlett Packard Enterprise alleging the defendants violated the Federal Age Discrimination in Employment Act ("ADEA"), the California Fair Employment and Housing Act, California public policy and the California Business and Professions Code by terminating older workers and replacing them with younger workers. Plaintiffs seek to certify a nationwide collective class action under the ADEA comprised of all U.S. residents employed by defendants who had their employment terminated pursuant to a workforce reduction ("WFR") plan on or after May 23, 2012 and who were 40 years of age or older. Plaintiffs also seek to represent a Rule 23 class under California law comprised of all persons 40 years or older employed by defendants in the state of California and terminated pursuant to a WFR plan on or after May 23, 2012. Following a partial motion to dismiss, a motion to strike and a motion to compel arbitration that the defendants filed in November 2016, the plaintiffs amended their complaint. New plaintiffs were added, but the plaintiffs agreed that the class period for the nationwide collective action should be shortened and now starts on December 9, 2014. On January 30, 2017, the defendants filed another partial motion to dismiss and motions to compel arbitration as to several of the plaintiffs. On March 20, 2017, the defendants filed additional motions to compel arbitration as to a number of the opt-in plaintiffs. On September 20, 2017, the Court granted the motions to compel arbitration as to the plaintiffs and opt-ins who signed WFR release agreements (17 individuals), and also stayed the entire case until the arbitrations are completed. On November 30, 2017, three named plaintiffs and twelve opt-in plaintiffs filed a single arbitration demand. On December 22, 2017, the defendants filed a motion to (1) stay the case pending arbitrations and (2) enjoin the demanded arbitration and require each plaintiff to file a separate arbitration demand. On February 6, 2018, the Court granted the motion to stay and denied the motion to enjoin. The portion of the case not stayed is proceeding through the mediation and arbitration process. HP Inc. provides products, technologies, software, solutions, and services to individual consumers, small- and medium-sized businesses, and large enterprises, including customers in the government, health, and education sectors worldwide. It operates through Personal Systems and Printing segments. HP Inc. was founded in 1939 and is headquartered in Palo Alto, California. HP INC: Notice of Appeal Filed in Jackson Suit ---------------------------------------------- HP Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended June 30, 2018, that the plaintiffs in Jackson, et al. v. HP Inc. and Hewlett Packard Enterprise filed a notice of appeal of the dismissal order with the United States Court of Appeals for the Ninth Circuit. This putative nationwide class action was filed on July 24, 2017 in federal district court in San Jose, California. The plaintiffs purport to bring the lawsuit on behalf of themselves and other similarly situated African-Americans and individuals over the age of forty. The plaintiffs allege that the defendants engaged in a pattern and practice of racial and age discrimination in lay-offs and promotions. The plaintiffs filed an amended complaint on September 29, 2017. On January 12, 2018, the defendants moved to transfer the matter to the federal district court in the Northern District of Georgia. The defendants also moved to dismiss the claims on various grounds and to strike certain aspects of the proposed class definition. The Court dismissed the action on the basis of improper venue. On July 23, 2018, the plaintiffs refiled the case in the Northern District of Georgia. On August 9, 2018, the plaintiffs also filed a notice of appeal of the dismissal order with the United States Court of Appeals for the Ninth Circuit. HP Inc. provides products, technologies, software, solutions, and services to individual consumers, small- and medium-sized businesses, and large enterprises, including customers in the government, health, and education sectors worldwide. It operates through Personal Systems and Printing segments. HP Inc. was founded in 1939 and is headquartered in Palo Alto, California. HUNTER ENGINEERING: Cal. App. Affirms Certification Denial ---------------------------------------------------------- The Court of Appeals of California, First District, Division Three, issued an Opinion affirming the District Court's judgment denying Plaintiffs' Motion for Class Certification in the case captioned JAY ROSSET et al., Plaintiffs and Appellants, v. HUNTER ENGINEERING COMPANY, Defendant and Respondent. No. A148819. (Cal. App.). The Plaintiffs appeal the District Court denials of their motion for class certification. Appellants are three Sales Representatives (SRs) and a Technical and Training Service Representative (TTR) (Plaintiffs) under contract with Hunter Engineering Company (Hunter). The Plaintiffs sued Hunter on behalf of themselves and a putative class alleging various Labor Code violations and moved for class certification. The trial court considered the evidence and arguments, applied the appropriate legal standard and denied the motion. Standard of Review The decision to grant or deny a certification motion rests squarely within the discretion of the trial court' because the trial court is ideally situated to evaluate the efficiencies and practicalities of permitting group action. The Legal Test Applied by the Trial Court To obtain certification, a party must establish the existence of both an ascertainable class and a well-defined community of interest among the class-members. This requires an inquiry into numerosity, ascertainability, whether common questions of law or fact predominate, whether the class representatives have claims or defenses typical of the class, and whether the class representatives can represent the class adequately. Both the prerequisites of numerosity and ascertainability were undisputed and therefore satisfied, and the trial court proceeded to consider whether common issues of fact and law predominated. The determination of how much commonality is enough to warrant use of the class mechanism requires a fact-specific evaluation of the claims, the common evidence, and the anticipated conduct of the trial. California courts consider pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate. Commonality is determined with respect to the claims and defenses as pleaded. All of plaintiffs' causes of action depend upon a predicate finding that, during the proposed class period, the Defendant acted as their employer and misclassified SRs and/or TTRs as Independent Contractors (ICs). If the misclassification issue is appropriate for certification, the court will also consider whether common issues predominate as to plaintiffs' underlying causes of action. Here, the court must determine whether, together, the factors are susceptible to common proof and/or whether plaintiffs have identified ways to effectively manage proof of any criteria that would otherwise require review of individualized evidence. Ayala, supra, 59 Cal.4th at p. 1024.) The court assessed whether common issues predominate, how individualized factors, including the control of details test, can be managed effectively and whether trying common issues would save the litigants and the court time. The Trial Court's Criteria The trial court correctly stated the applicable criteria for deciding both whether plaintiffs met their burden for class certification and whether common questions of law and fact predominate as to the alleged misclassification of employee status. Next the court carefully analyzed each of the required factors, weighed and balanced the proffered evidence and found some common issues, but they were substantially outweighed both in number and significance by elements which required individualized evidence. The court scrutinized numerous declarations and deposition testimony on the degree of supervision of the representatives. As to the requirement of attending meetings and trainings, the court concluded: the evidence on the degree of managerial control exercised through meeting attendance and the message that representatives received from management on this issue, is mixed, not common. Representatives reported similarly disparate experiences on the extent to which they were monitored, evaluated and adversely affected by their performance. Some felt they were adversely affected by issues related to productivity or other issues; other representatives, especially some who were from southern California, disclaimed any pressure or retaliation. The evidence on the requirement to log in on the program to provide client-specific details to respond to client demands was just as varied, leading the court to conclude that the evidence on supervision of TTRs through centralized programs is highly individualized in nature, not common. The court also found disparity on the approach to the role of business plans and sales projections: while one manager required that they be provided, that was not universal. The range of views on Hunter's control of representatives' personal appearance, dress and vehicle type/appearance was equally far ranging and in the court's view not common. The trial court carefully and exhaustively analyzed all of the evidence and applied the correct legal standards: The court must compare those issues that may be jointly tried with those requiring separate adjudication to determine whether the common issues are sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants. Here, the misclassification inquiry is the most important and will dominate this litigation, as it is a predicate to all causes of action. The court recognized that there are some common issues in the employment status inquiry, but after analyzing all of the evidence and the applicable precedent decided that plaintiffs had not met their burden. The court concluded: Perhaps most importantly, the multi-factor test for the employment relationship requires that all of the factors be examined together. Even if certain issues were tried jointly as to a class or subclasses, the remaining individualized issue would have to be determined and then weighed along with the already-determined common issues in order to resolve whether each class member was an employee or independent contractor. It does not appear that trying common issues first would result in any appreciable savings of the court's or the litigant's time. As such, a class action is not a superior method for resolving putative class members' claims. The judgment is affirmed. A full-text copy of the Cal. App.'s September 27, 2018 Opinion is available at https://tinyurl.com/y7h9aqz4 from Leagle.com. IBM: Vermonters Can Join Class Action on Age Discrimination ----------------------------------------------------------- Dan D'Ambrosio, writing for Burlington Free Press, reports that if you are one of the hundreds of former IBM employees in Vermont laid off less than six years ago, you may be eligible to join a class-action lawsuit alleging age discrimination filed against the company on September 24. "Age discrimination in the tech industry is, unfortunately, a rampant problem," said attorney Shannon Liss-Riordan, Esq. who filed the lawsuit. "IBM, which given its age, has an older workforce on average than other companies in this area. It appears that IBM has been trying to change that by targeting older workers for layoff and adopting policies that would lead to severance of many of its older workers." It's about skills, not age IBM issued a statement saying that changes in its workforce "are about skills, not age." The company said that since 2010 there has been no change in the age of its U.S. workforce, but that "the skills profile has changed dramatically." Liss-Riordan filed the lawsuit on behalf of three former IBM employees in California, North Carolina and Georgia. The thousands of Vermonters laid off by IBM in the early 2000s may not be eligible to join the lawsuit because of a statute of limitations. "We were just contacted by a Vermont IBM employee who was laid off, but it was too long ago to be part of the case," Liss-Riordan told the Burlington Free Press in an email on September 19. Liss-Riordan said the federal statute of limitations for age discrimination lawsuits is just 300 days, but that former Vermont employees might be able to join the case "even if they were laid off six years ago." The Vermont Attorney General's office did not immediately confirm that the statute of limitations for cases such as Liss-Riordan's is six years. Targeting older employees GlobalFoundries took over the semiconductor "fab" in Essex Junction in 2015 after IBM agreed to pay the company $1.5 billion to take the facility off its hands. The lawsuit alleges that over the last several years, IBM has been in the process of "systematically laying off older employees in order to build a younger workforce." The lawsuit states that between 2012 and today, IBM has laid off at least 20,000 employees over the age of 40. Liss-Riordan filed the lawsuit in federal court in the Southern District of New York on September 17. She encouraged former IBM employees in Vermont to contact her at ibmlawsuit@llrlaw.com, saying, "We will sort out who is eligible."[GN] INOVALON HOLDINGS: Court Narrows Claims in Fromer TCPA Suit ----------------------------------------------------------- In the case, ERIC B. FROMER CHIROPRACTIC, INC., Plaintiff, v. INOVALON HOLDINGS, INC., et al., Defendants, Case No. GJH-17-3801 (D. Md.), Judge George J. Hazel of the U.S. District Court for the District of Maryland, Southern Division, (i) granted in part and denied in part the Defendants Motion to Dismiss; and (ii) stayed the case pending resolution of the Defendants' Petition for Expedited Declaratory Ruling presently pending before the Federal Communications Commission ("FCC"). The Plaintiff, on behalf of itself and others similarly situated, brings this putative class action against Defendants Inovalon Holdings, Inc., Inovalon, Inc., and Inovalon SME, LLC, alleging that the Defendants sent the Plaintiff an unsolicited advertisement via facsimile transmission in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Prevention Act of 2005. On Nov. 14, 2017, the Defendants sent an unsolicited facsimile transmission to the Plaintiff. The Fax offers medical providers, like the Plaintiff, free access to Inovalon's electronic record retrieval system. The Plaintiff alleges that it did not give prior express invitation or permission to the Defendants to send the Fax and that it does not have an established business relationship with the Defendants to otherwise authorize the Fax. In addition to being unsolicited, the Fax does not display an opt-out notice as required by the TCPA. The Plaintiff alleges that it lost paper and toner consumed in printing the Fax. It also wasted time in receiving, reviewing, and routing the Fax, and receipt of the Fax interrupted its interest in being left alone. The Plaintiff further alleges that the Defendants profit and benefit from the sale of the products, goods and services advertised in the Fax. According to the Plaintiff, the Defendants have faxed the same, or similar, unsolicited fax in violation of the TCPA to at least 40 other recipients without first obtaining the recipient's express invitation or permission. The Plaintiff filed its putative class action on Dec. 26, 2017. On Feb. 19, 2018, the Defendants filed a petition with the FCC seeking an expedited declaratory ruling that because Inovalon does not sell the products or services mentioned in the Fax to recipients of the Fax, the Fax was not an unauthorized advertisement otherwise prohibited by the TCPA. In its Petition, the Defendants ask the FCC to declare: (i) the faxes sent by a health insurance plan's designee to a patient's medical provider, pursuant to an established business relationship between the health plan and provider, requesting patient medical records are not advertisements under the TCPA; and (ii) the faxes that offer the free collection and/or digitization of patient medical records, and which do not offer any commercially available product or service to the recipients are not advertisements under the TCPA. Presently pending before the Court is the Plaintiff's "Placeholder" Motion to Certify Class, to which the Defendants have not responded, and the Defendants Motion to Dismiss. The Defendants move to dismiss the Plaintiff's complaint for lack of subject-matter jurisdiction or for failure to state a claim upon which relief can be granted. Alternatively, they ask the Court to stay the case pending resolution of its FCC Petition for Expedited Declaratory Ruling. The Plaintiff suggests that some courts have considered that the Ninth Circuit's decision in an Patten v. Vertical Fitness Group, LLC implicitly overturned ARcare v. Qiagen N. Am. Holdings, Inc. Judge Hazel disagrees. In ARcare, like Van Patten, the district court found that a procedural violation of the TCPA constituted a concrete injury for Article III standing purposes. T he district court's traceability holding was not addressed in Van Patten because the TCPA violation there did not depend on whether the text was accompanied by a TCPA-required opt-out notice. However, the Judge finds that ARcare is unpersuasive because it unjustifiably narrows the concrete injury recognized by Congress in the TCPA-- receipt of an unsolicited fax -- and imposes a heighted causation requirement not supported by Article III standing case law. It is therefore well established that the mere receipt of an unsolicited fax in violation of the TCPA constitutes a concrete injury sufficient to satisfy Article III's injury in fact requirement. The Judge finds that it is certainly plausible that the Defendants stand to profit from the Plaintiff utilizing its services, even if at no cost Plaintiff. By simply offering its services to the Plaintiff free of charge, the Fax could constitute an unsolicited advertisement prohibited by the TCPA. The Plaintiff attached the actual fax to the Complaint, and the Judge is hard-pressed to think of what additional factual allegations would more clearly suggest that the Defendants have offered the Plaintiff a commercially-available service through the use of a fax machine in order to defeat a 12(b)(6) motion. Therefore, the Defendants' Motion to Dismiss is denied. As the Defendants note, the U.S. District Court for the Southern District of Florida recently stayed a Junk Fax action pending FCC's resolution of similar questions, and the Judge's interpretation in the case could be inconsistent with either of the agency's forthcoming determinations. Therefore, he stays the action pending FCC's resolution of Defendants' Petition for Expedited Declaratory Ruling. Finally, because the Judge will stay the case pending FCC's resolution of Defendants' Petition for Expedited Declaratory Ruling, he needs not rule on the Plaintiff's motion at this time. For the foregoing reasons, Judge Hazel granted in part and denied in part the Defendants' Motion to Dismiss, and stayed the case pending review by the FCC. A separate Order follows. A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinion is available at https://is.gd/IxO8aH from Leagle.com. Eric B. Fromer Chiropractic, Inc., a California corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by Stephen Howard Ring -- shr@ringlaw.us -- Stephen H. Ring PC, Ross M. Good -- rgood@andersonwanca.com -- Anderson and Wanca, pro hac vice & Ryan M. Kelly -- rkelly@andersonwanca.com -- Anderson and Wanca, pro hac vice. Inovalon Holdings, Inc., Inovalon, Inc., Delaware corporations & Inovalon SME, LLC, a Delaware limited liability company, Defendants, represented by Daniel Scott Blynn -- dsblynn@Venable.com -- Venable LLP, Dino S. Sangiamo -- dssangiamo@Venable.com -- Venable LLP & Elizabeth Catherine Rinehart, Venable LLP. INTUIT INC: Accord in Tax Refund Fraud Case Has Initial Court OK ---------------------------------------------------------------- Bonnie Eslinger, writing for Law360, reports that a California federal judge has preliminarily approved a non-monetary deal Intuit Inc. reached to settle proposed class action claims over TurboTax refund fraud. Intuit Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2018, that in fiscal 2015 Intuit was contacted by certain state and federal regulatory authorities in connection with inquiries regarding an increase during the 2015 tax season in attempts by criminals using stolen identity information to file fraudulent tax returns and claim refunds. Intuit provided information in response to those inquiries and now believes those inquiries are resolved. A consolidated putative class action lawsuit was filed by individuals who claim to have suffered damages in connection with the 2015 events. On May 23, 2018, the parties reached a settlement in principle of this matter, which is subject to preliminary and final approval by the court. On August 23, 2018, the parties filed a motion for preliminary approval of the settlement. A preliminary approval hearing was scheduled to be heard on October 4, 2018. Intuit said, "The terms of the proposed settlement are not material to our consolidated financial statements. In the event the settlement does not receive final approval by the court, the litigation may resume and we may not be able to predict the outcome of such lawsuit. We continue to believe that the allegations in this lawsuit are without merit." Intuit Inc. provides financial management and compliance products and services for small businesses, consumers, self-employed, and accounting professionals in the United States, Canada, and internationally. Intuit Inc. was founded in 1983 and is headquartered in Mountain View, California. JOHNSON & JOHNSON: Says Indian Patients' Claims Unreasonable ------------------------------------------------------------ MENAFN reports that pharma giant Johnson & Johnson, which is facing lawsuit over its faulty hip implants, told National Consumer Disputes Redressal Commission (NCDRC) that demands of Indian patients were 'unreasonable and undue', as they filed the lawsuit only after knowing about the US settlement. In the US, J&J gave $2.5 billion to thousands of affected patients, after a class action lawsuit was filed in 2011. Patient demands Rs. 2cr in damages, J&J feels it's 'undue' The case Notably, in 2016, 52-year-old Jyoti Sharma had approached the country's top consumer court demanding Rs. 2 crore in damages from J&J. Responding to her lawsuit, the company filed an affidavit in July'16, saying she didn't approach the commission in time. Calling it an afterthought after the US verdict, the affidavit claimed it was done "with a view to make unreasonable, undue and wrongful windfall gains". Backstory: Sharma had surgery in 2006, pain persisted for years Details Sharma had underwent a surgery in September 2006, and complained of pain. She made regular visits to the hospital, and it was only in 2011 that she learned the cobalt-chromium level in her blood was 3.69. The ideal window is 0.08-0.09. In 2012, she underwent a revision hip replacement surgery, but after getting no respite from the pain, she moved court. Sharma tells why she moved court after years Fact "Despite the revision surgery, the fact remains that it has caused me irreparable, long-term damage to my hip bone and tissue. There was no move by the company to compensate me. Therefore, I decided to sue the company for damages for suffering," she told IE. Company explains why it isn't liable to pay compensation Affidavit But J&J questioned the timing of the Sharma's complaint. In the affidavit, the company said it wasn't liable to pay compensation, because the implant was removed in 2012. Further, the firm added it was important to take technical, medical and scientific evidence into account which 'are beyond the scope of the Consumer Protection Act'. On J&J's affidavit, Ms. Sharma said it insulted her injury. Their reason is unbelievable, Ms. Sharma on J&J's affidavit Fact "I could not sue them in the US, hence, approached Indian courts. The reason given by Johnson and Johnson to the court is unbelievable, especially when it has agreed that ASR (articular surface replacement) implant was faulty and paid for my revision surgery," she said. Another son is fighting a battle for her mother Details Notably, hers isn't the only case. Arun Goenka is also fighting a similar case. He alleges the faulty hip surgery in 2006 laid roots for medical complications of her mother, Purna Devi. She died in March this year. He said though they knew about the problem another surgery at her mother's age wasn't recommended. "She developed associated problems and died of complications," Mr. Goenka said. Defending itself, J&J said patient didn't undergo revision surgery, willingly Defense Responding to Mr. Goenka's complaint, J&J told the court, "It is submitted that there are several conditions such as age, medical profile, type and duration of use of hip implants that are applicable for determining the eligibility for receiving compensation." J&J told the patient 'waived her right' for revision surgery. On this Mr. Goenka asked, does a patient have to undergo painful surgery to get compensation? [GN] KAPSTONE PAPER: Faces Multiple Merger Related Suits --------------------------------------------------- KapStone Paper and Packaging Corporation said in its Form 8-K filing with the U.S. Securities and Exchange Commission that the company made a supplemental disclosure in connection to the merger-related suits. As previously disclosed, on January 28, 2018, KapStone Paper and Packaging Corporation ("KapStone"), WestRock Company ("WestRock"), Whiskey Holdco, Inc., a wholly-owned subsidiary of WestRock ("Holdco"), Kola Merger Sub, Inc., a wholly-owned subsidiary of Holdco ("KapStone Merger Sub"), and Whiskey Merger Sub, Inc., a wholly-owned subsidiary of Holdco ("WestRock Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"). Pursuant to the Merger Agreement, and subject to the terms and conditions thereof, WestRock will acquire all of the outstanding shares of KapStone through a transaction in which: (i) WestRock Merger Sub will merge with and into WestRock, with WestRock surviving such merger as a wholly-owned subsidiary of Holdco and (ii) KapStone Merger Sub will merge with and into KapStone, with KapStone surviving such merger as a wholly-owned subsidiary of Holdco (the "Merger"). The following complaints have been filed in the United States District Court for the District of Delaware: (i) on August 6, 2018, a putative class action lawsuit captioned Jordan Rosenblatt, Individually And On Behalf Of All Others Similarly Situated v. KapStone Paper and Packaging Corporation, Roger W. Stone, Matthew Kaplan, Robert J. Bahash, John M. Chapman, Paula H.J. Cholmondeley, Jonathon [sic] R. Furer, David G. Gabriel, Brian Gamache, Matthew H. Paull, Maurice S. Reznik and David P. Storch, Case No. 1:18-CV-01190-RGA (the "Rosenblatt Complaint"); (ii) on August 8, 2018, a putative class action lawsuit captioned Todd Harrison, Individually and on Behalf of All Others Similarly Situated v. KapStone Paper and Packaging Corporation, Roger W. Stone, Matthew Kaplan, Robert J. Bahash, John M. Chapman, Paula H.J. Cholmondeley, Jonathon [sic] R. Furer, David G. Gabriel, Brian Gamache, Matthew H. Paull, Maurice S. Reznik and David P. Storch, Case No. 1:18-CV-01210-RGA (the "Harrison Complaint"); and (iii) on August 22, 2018, a putative class action lawsuit captioned David Pill, Individually and on Behalf of All Others Similarly Situated v. KapStone Paper and Packaging Corporation, Roger W. Stone, Matthew Kaplan, Robert J. Bahash, John M. Chapman, Paula H.J. Cholmondeley, Jonathan R. Furer, David G. Gabriel, Brian Gamache, Matthew H. Paull, Maurice S. Reznik and David P. Storch, Case No. 1:18-CV-01290-RGA (the "Pill Complaint" and, together with the Rosenblatt and Harrison Complaints, the "Merger Litigation"). The Merger Litigation relates to the Merger Agreement and the definitive proxy statement/prospectus filed with the U.S. Securities and Exchange Commission (the "SEC") on August 1, 2018 (the "Proxy Statement/Prospectus") in connection with the Merger. KapStone and WestRock believe that the claims asserted in the Merger Litigation are without merit and intend to defend against the Merger Litigation vigorously. However, in order to moot the plaintiffs' unmeritorious disclosure claims, alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to their respective stockholders, KapStone and WestRock have determined to voluntarily supplement the Proxy Statement/Prospectus. KapStone and WestRock specifically deny all allegations in the Merger Litigation that any additional disclosure was or is required. A copy of the supplemental disclosure is available at https://goo.gl/bbzj7f KapStone Paper and Packaging Corporation produces and sells a range of containerboards, corrugated products, and specialty paper products in the United States and internationally. The company operates in two segments, Paper and Packaging, and Distribution. KLX INC: Stipulation of Dismissal Filed in Merger-Related Suit -------------------------------------------------------------- KLX Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 31, 2018, that the plaintiff in the merger related class action suit filed a stipulation of dismissal. On April 30, 2018, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with The Boeing Company, a Delaware corporation ("Boeing"), and Kelly Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Boeing ("Merger Sub"), as amended by Amendment No. 1 thereto, dated June 1, 2018, pursuant to which Boeing has agreed to acquire the Aerospace Solutions Group ("ASG") business of KLX. In addition, the Company announced its intention to spin-off its Energy Services Group ("ESG") business ("KLX Energy Services") to its stockholders. Upon the terms and subject to the conditions set forth in the Merger Agreement, at the closing, Merger Sub will merge with and into the Company, with the Company surviving as a direct or indirect wholly-owned subsidiary of Boeing (the "Merger"). Following KLX's announcement of the merger, on July 2, 2018, KLX received a demand letter from counsel for a purported KLX stockholder seeking inspection of KLX's books and records. After negotiation with counsel for this purported stockholder and pursuant to an agreement governing the confidentiality of any produced documents, KLX produced certain books and records in connection with the proposed merger between KLX and Boeing. On July 6, 2018, a putative class action (the "Complaint") was filed by a purported KLX stockholder in the United States District Court for the District of Delaware. The Complaint purports to bring the litigation as a class action on behalf of the public stockholders of KLX (the "Action"). The Complaint names as defendants the members of the board of directors of KLX and KLX. The Complaint alleges that KLX and the board of directors of KLX failed to disclose material information in KLX's First Amended Preliminary Proxy Statement on Form 14A filed on June 28, 2018. The Complaint seeks, among other things, equitable relief, including to enjoin the closing of the merger, to direct disclosure of all material information in KLX's proxy statement and to award plaintiff’s costs, including attorney's and expert's fees. On August 15, 2018, the parties to the Action entered into a confidential Memorandum of Understanding (the "Memorandum of Understanding") providing for the dismissal of the Action with prejudice as to the plaintiff in the Action and without prejudice as to the putative class. While KLX believes that the Action lacks merit and that the disclosures in the definitive proxy statement comply fully with applicable law, in order to avoid the expense and distraction of litigation, KLX agreed, pursuant to the terms of the confidential Memorandum of Understanding, to supplement the definitive proxy statement with certain supplemental disclosures, which it did on August 15, 2018. The confidential Memorandum of Understanding also outlined the terms of the plaintiff in the Action's agreement in principle to dismiss the Complaint and release all claims which it has, has ever had, or could have asserted related to the Merger and disclosures related to the Merger. On August 22, 2018, the plaintiff filed a stipulation of dismissal. The counsel for the plaintiff has reserved the right to seek a mootness fee but has not yet made any specific demand for such a fee. In the opinion of management, neither the demand letter, nor the Complaint are likely to result in a material adverse effect on the Company’s condensed consolidated financial statements. KLX Inc., together with its subsidiaries, provides aerospace fasteners, consumables, and logistics services worldwide. KLX Inc. is headquartered in Wellington, Florida. KRYPTONITE ENERGY: Shields Seeks Unpaid Wages and OT under FLSA --------------------------------------------------------------- Robert Shields, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. Kryptonite Energy Services, LLC, the Defendant, Case 2:18-cv-01284-MRH (W.D. Pa., Sept. 26, 2018), seeks to recover unpaid wages and overtime compensation for the Plaintiff and other similarly situated co-workers who work or have worked for the Defendant under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, the Ohio Constitution, and the Pennsylvania Minimum Wage Act. The Plaintiff alleges, on behalf of himself and other current and former employees as well as those similarly situated current and former employees holding comparable positions but different titles, including Crew Leads and Roustabouts employed by the Defendant who elect to opt into this action pursuant to the FLSA, that they are entitled to (i) unpaid wages for all hours worked in a workweek , as required by law, (ii) unpaid overtime wages for hours worked above 40 in a workweek, as required by law, and (iii) liquidated damages pursuant to the FLSA. Kryptonite Energy specializes in pressure testing, torque wrenches, chemical injection, on-site greasing, and roustabout services.[BN] Counsel for Plaintiff and the Collective and Class Members: D. Aaron Rihn, Esquire ROBERT PEIRCE & ASSOCIATES, P.C. 707 Grant Street, Suite 2500 Pittsburgh, PA 15219-1918 Telephone: (412) 281-7229 Facsimile: (412) 281-4229 E-mail: arihn@peircelaw.com - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. MIGLIACCIO & RATHOD LLP 412 H Street N.E., Suite 302 Washington, DC 20002 Telephone: (202) 470 3520 Facsimile: (202) 800 2730 E-mail: nmigliaccio@classlawdc.com jrathod@classlawdc.com LAZY ONE: Crosson Files ADA Suit in New York -------------------------------------------- A class action lawsuit has been filed against Lazy One, Inc. The case is styled as Aretha Crosson individually and as the representative of a class of similarly situated persons, Plaintiff v. Lazy One, Inc., Defendant, Case No. 1:18-cv-05649 (E.D. N.Y., Oct. 10, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Lazy One sells not only "cheeky" boxers, but also pj tees, sleepwear and more, all featuring original-and strangely endearing-designs of wacky wildlife.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com LEXINGTON INSURANCE: Court OKs Dismissal of Ezell RICO Suit ----------------------------------------------------------- The United States District Court for the District of Massachusetts issued an Order granting Defendants' Motion to Dismiss the amended complaint in the case captioned NORMA EZELL, LEONARD WHITLEY, and ERICA BIDDINGS, on behalf of themselves and all others similarly situated, Plaintiffs, v. LEXINGTON INSURANCE COMPANY; AMERICAN INTERNATIONAL GROUP, INC.; AIG ASSURANCE COMPANY; AIG INSURANCE COMPANY; AIG PROPERTY CASUALTY COMPANY; AIG SPECIALTY INSURANCE COMPANY; AMERICAN GENERAL LIFE INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, P.A.; AGC LIFE INSURANCE COMPANY; AMERICAN GENERAL ANNUITY SERVICE CORPORATION; and AIG DOMESTIC CLAIMS, INC., Defendants. Civil Action No. 17-10007-NMG. (D. Mass.). The Plaintiffs bring this putative class action against ten insurance companies and subsidiaries alleging that certain commissions charged in connection with annuity payments are unlawful. Legal Standard 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. In considering the merits of a motion to dismiss, the Court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Civil RICO To state a RICO claim under 18 U.S.C. 1961, a plaintiff must allege four elements: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. Section 1961(1) defines racketeering activity to mean any act that violates one of the federal laws specified in the RICO statute, including the mail and wire fraud statutes, 18 U.S.C. .5.5 1341 and 1343, over a ten-year period. The plaintiffs have again failed to plead adequately that the defendants and non-party brokers associated together for a common illegal purpose as opposed to merely conducting their business in parallel. The original and amended complaints both allege that defendants maintain an Approved Broker List of brokers to sell annuities for structured settlements. Those on the list are known as Agency Partners who have allegedly engaged in parallel conduct, namely concealing the fact that their broker's fees are bundled into the represented annuity costs in an effort to push the sale of AIG annuities. In this Court's prior order allowing defendants' motion to dismiss, it found that those allegations, alone, do not rise to the level of an association-in-fact enterprise because the complaint does not state how the brokers collaborated with each other or if the brokers were even aware of each other's participation in the alleged scheme. Because plaintiffs have not remedied the deficiencies of the original complaint with respect to the civil RICO claim, Count I of the amended complaint will be dismissed with prejudice against all defendants. Fraudulent Misrepresentations The Plaintiffs allege that defendants made false and misleading representations concerning the value of the payments agreed to in the structured settlement agreements. They contend that defendants assumed an affirmative duty to disclose the broker's fees and that by concealing the true cost of the annuities, defendants violated that duty. In their complaint, plaintiffs further allege that they relied upon defendants' misrepresentations to their detriment and financial injury. The Defendants rejoin that the allegations in the complaint fail to satisfy the pleading requirements under. Furthermore, they deny that they were under any duty to disclose the pricing and premium information. The Defendants suggest that, while Lexington entered into the settlement agreements with plaintiffs, other defendants, and in the case of Biddings's settlement, non-parties from whom Lexington bought the annuities were the entities that actually paid the broker commissions. Even if plaintiffs had adequately alleged the author of the fraudulent misrepresentations, they have failed to allege how those misrepresentations were material. To show materiality, plaintiffs must demonstrate that the matter misrepresented was relevant and important in determining their choice of action. The Plaintiffs fail to allege how their decisions would have been affected had they known of the 4% broker's commission. They concede that charging such a fee was an industry-wide practice for annuities and they do not claim that they would have declined the structured settlement had they known of the broker's fee. To the contrary, they assert that, had they known of the broker's fee, they would have employed their own brokers who would have acted in their interests rather than the interests of defendants. That claim, however, addresses only the separate issue of who hired the brokers, not the issue of saving the 4% broker's fee. Had plaintiffs hired their own brokers, presumably they would have still paid the industry-standard 4% commission to enter into the structured settlement agreements. Without alleging specifically how foreknowledge of the broker's fee would have affected their choice of taking the structured settlement, plaintiffs have failed to plead the materiality prong of common-law fraud. Accordingly, the Defendants' motion to dismiss Count II will be allowed and Count II will be dismissed with prejudice. The Defendants' motion to dismiss is allowed and the amended complaint is dismissed with prejudice. A full-text copy of the District Court's September 27, 2018 Memorandum and Order is available at https://tinyurl.com/y8seqccn from Leagle.com. Norma Ezell, on behalf of themselves and all others similarly situated, Leonard Whitley, on behalf of themselves and all others similarly situated & Erica Biddings, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Craig R. Spiegel -- craig@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Kristen A. Johnson -- kristenj@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Richard B. Risk, Jr., Risk Law Firm, PA, pro hac vice & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Lexington Insurance Company, American International Group, Inc., AIG Assurance Company, AIG Property Casualty Company, AIG Specialty Insurance Company, American General Life Insurance Company, National Union Fire Insurance Company of Pittsburgh, PA., AGC Life Insurance Company, American General Annuity Service Corporation & AIG Claims, Inc., formerly known as AIG Domestic Claims, Inc., Defendants, represented by William T. Hogan, III -- bill.hogan@nelsonmullins.com -- Nelson, Mullins, Riley & Scarborough, LLP, Adam H. Offenhartz -- aoffenhartz@gibsondunn.com -- Gibson, Dunn & Crutcher, LLP, pro hac vice, James L. Hallowell- jhallowell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Nancy E. Hart -- nhart@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Patrick T. Uiterwyk -- patrick.uiterwyk@nelsonmullins.com -- Nelson Mullins Riley & Scarborough LLP & Peter M. Wade -- pwade@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice. AIG Insurance Company, Defendant, represented by William T. Hogan, III, Nelson, Mullins, Riley & Scarborough, LLP & Patrick T. Uiterwyk, Nelson Mullins Riley & Scarborough LLP. LUXOR ESTATES CONDOMINIUM: Pasternakiewicz Seeks Unpaid OT Wages ---------------------------------------------------------------- Miroslaw Pasternakiewicz, individually and on behalf of all persons similarly situated, Plaintiff, v. Luxor Estates Condominium Association, Defendants, Case No. 18-cv-08602, (S.D. N.Y., September 20, 2018), seeks to recover unpaid wages, liquidated damages, reasonable attorney fees and costs under the Fair Labor Standards Act and New York Labor Law. Defendant owns vacation lodging in upstate New York where Pasternakiewicz worked as a construction worker. He was allegedly misclassified by Plaintiff as an independent contractor. He claims to have worked more than 40 hours in a workweek and was not properly compensated for the overtime work by paying 1.5 times his regular hourly wage rate. [BN] Plaintiff is represented by: Jordan El-Hag, Esq. EL-HAG & ASSOCIATES, P.C. 777 Westchester Ave, Suite 101 White Plains, NY, 10604 Tel: (914) 755-1579 Fax: (914) 206-4176 Email: Jordan@elhaglaw.com Website: www.elhaglaw.com MARICOPA, AZ: David Isabel Files Civil Rights Class Suit -------------------------------------------------------- David Isabel has brought a class action lawsuit against officials of Maricopa county in Arizona. The case is styled as David Isabel individually and on behalf of all others similarly situated, Plaintiff v. Michele Reagan in her individual capacity, County of Maricopa, Adrian Fontes in his official capacity as Maricopa County Recorder, Defendants, Case No. 2:18-cv-03217-JZB (D. Ariz., Oct. 9, 2018). The Plaintiff filed the case under the Civil Rights Act. Michele Reagan (born October 13, 1969) is an American Republican politician who is the 20th and current Arizona Secretary of State, succeeding Ken Bennett in 2015. Maricopa County is a county in the south-central part of the U.S. state of Arizona. As of the 2010 census, its population was 3,817,117, making it the state's most populous county, and the fourth-most populous in the United States. Adrian Fontes is the county recorder of Maricopa County, Arizona.[BN] The Plaintiff is represented by: Nathan Jean Fidel, Esq. Miller Pitt Feldman & McAnally PC 2800 N Central Ave., Ste. 840 Phoenix, AZ 85012-1069 Phone: (602) 266-5557 Fax: (602) 266-2223 Email: nfidel@mpfmlaw.com - and – Spencer Garrett Scharff, Esq. Scharff PLC 502 W Roosevelt St. Phoenix, AZ 85003 Phone: (602) 739-4417 Email: spencer@scharffplc.com MASSACHUSETTS: Sabree Files Appeal in Massachusetts Judicial Court ------------------------------------------------------------------ G. SAIF SABREE, ON BEHALF OF HIMSELF AND ALL OTHER BLACK PRISONERS CURRENTLY AND IN THE FUTURE SIMILARLY SITUATED AT THE MASSACHUSETTS TREATMENT CENTER, the Plaintiff/Petitioner v. DANIEL BENNETT, SECRETARY EXECUTIVE OFFICE OF PUBLIC SAFETY AND SECURITY, THOMAS TURCO III, COMMISSIONER OF DEPARTMENT OF CORRECTIONS, STEVEN O'BRIEN, FORMER SUPERINTENDENT OF MASSACHUSETTS TREATMENT CENTER, STEVEN WHEELER, PRESIDENT/CEO MHM CORRECTIONAL SERVICES, INC., GEORGE JOHNS REGIONAL VICE PRESIDENT MHM CORRECTIONAL SERVICES, INC., AND KIMBERLY LYMAN-JULIUS PROGRAM DIRECTION FORENSIC HEALTH SERVICES MHM CORRECTIONAL SERVICES, INC., the Defendant/Respondents, Case No. SJ-2018-0424, is an appeal filed in the Massachusetts Supreme Judicial Court on Sept. 19, 2018, from a lower court decision in Case No. 1784CV00314, Suffolk Superior Court.[BN] The Plaintiff appears pro se. MEDNAX: Bernstein, Spector Vie for Class Action Lead Counsel Spot ----------------------------------------------------------------- Carolina Bolado, writing for Law360, reported that Bernstein Litowitz Berger & Grossmann LLP and Spector Roseman & Kodroff PC are battling to nab the lead counsel spot in a shareholder class action against health care administration company Mednax. [GN] MEDTRONIC PLC: Pretrial in Sprint Fidelis-Related Suit Underway --------------------------------------------------------------- Medtronic Public Limited Company said in its Form 10-Q Report filed with the Securities and Exchange Commission for the quarterly period ended July 27, 2018, that pretrial proceedings in Sprint Fidelis class action related suit is ongoing. In 2007, a putative class action was filed in the Ontario Superior Court of Justice in Canada seeking damages for personal injuries allegedly related to the Company's Sprint Fidelis family of defibrillation leads. On October 20, 2009, the court certified a class proceeding but denied class certification on plaintiffs' claim for punitive damages. Pretrial proceedings are underway. No further updates were provided in the Company's SEC report. Medtronic Public Limited Company develops, manufactures, distributes, and sells device-based medical therapies to hospitals, physicians, clinicians, and patients worldwide. It operates through four segments: Cardiac and Vascular Group, Minimally Invasive Therapies Group, Restorative Therapies Group, and Diabetes Group. The company was founded in 1949 and is headquartered in Dublin, Ireland. MICROSOFT CORP: Appeals Court Will Consider Class-Action Question ----------------------------------------------------------------- Rachel Lerman, writing for The Seattle Times, reports that women suing Microsoft alleging widespread gender discrimination will get another chance to convince a court that their claims should be considered together as a class, after the Ninth Circuit Court of Appeals agreed to hear an appeal of a lower-court decision. The plaintiffs in the lawsuit are seeking to add to the case more than 8,600 women who have worked in engineering jobs at the company, making it a class-action suit. U.S. District Judge James Robart denied the class-action motion in June, saying there were not strong enough similarities between the women's claims to prove companywide bias practices. The case, Moussouris v. Microsoft, is one of a few high-profile gender-discrimination lawsuits against big tech companies weaving its way through the courts. It has been going on for three years and alleges gender discrimination across Microsoft, particularly tied to the way performance reviews and promotions were conducted. Microsoft has denied the claims, saying its processes do not discriminate against women. Lawyers for the plaintiffs appealed Robart's ruling this summer that blocked class-action status. "We welcome the Ninth Circuit's clarification of the class certification standards and believe the evidence here demands that Microsoft's common discriminatory systems be addressed on a class basis so that women at the company can get justice," plaintiff attorney Kelly Dermody, Esq. -- kdermody@lchb.com -- said in a statement on September 21. A Microsoft spokesperson said September 21 that the company believed Robart made the correct decision. "There is no bias in Microsoft's pay and promotion practices," a company spokesperson said in a statement. "We remain committed to increasing diversity and making sure that Microsoft continues to be a workplace where everyone has an equal opportunity to succeed." The court will likely hear oral arguments in the appeal in 2019.[GN] MONSANTO COMPANY: Sonnier Sues over Sale of Herbicide Roundup ------------------------------------------------------------- SHELIA SONNIER, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01633 (E.D. Mo., Sept. 26, 2018), seeks to recover damages suffered by the Plaintiff as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. According to the complaint, the Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. "Roundup" refers to all formulations of Defendant Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, and Roundup Prodry Herbicide. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. It operates in two segments, Seeds and Genomics, and Agricultural Productivity.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 NATIONAL INSURANCE: Court Challenges Solvency Capital Policy ------------------------------------------------------------ Business Day reports that a Federal High Court in Lagos has restrained the National Insurance Commission (NAICOM) from implementing its proposed minimum solvency capital policy scheduled to take effect from October 1, 2018, pending the expiration of a 30-day pre-action notice. Justice Muslim Hassan, gave the order in a class action brought by some shareholders of insurance companies in Nigeria, challenging the new minimum solvency capital policy proposed by the NAICOM. At the hearing, counsel to the applicant, Bert Chucks Igwilo, told the court that they had filed and served the NAICOM a pre-action notice on Sept 6. Justice Hassan gave the order and adjourned further hearing to Oct 8. [GN] NATIONWIDE CAPITAL: Fabricant Hits Illegal Telemarketing Calls -------------------------------------------------------------- Terry Fabricant, individually and on behalf of all others similarly situated, Plaintiff, v. Nationwide Capital Solutions Group, Inc., and Does 1 through 10, inclusive, Defendant, Case No. 18-cv-08128 (C.D. Cal., September 19, 2018), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Nationwide Capital Solutions Group, Inc. is a finance brokerage company who attempted to contact Fabricant using an automatic telephone dialing system offering its services, says the complaint. [BN] 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 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com NEOEN: Cites Risk Of Class Action Against Wind Farms ---------------------------------------------------- Giles Parkinson, writing for Renew Economy, reports that the French-owned renewable energy developer Neoen says there is a risk that wind farms in South Australia could face a class action suit over the state-wide blackout in September, 2016. The risk was cited in Neoen's documentation for its upcoming initial public offering, where it will seek to raise $A850 million in a share market float. Most of the company's revenue now comes from Australia, where it owns the Hornsdale wind farm, the Tesla big battery, and three solar farms in NSW, and is building new wind, solar and battery projects in Victoria and NSW, and has others planned in those states and in South Australia and Queensland. The documents reveal, for the first time, some of the detailed contracts, costs and revenues of the Tesla big battery that was built last year next to the 317MW Hornsdale wind farm. But it also raises the possibility of court action over the state-wide blackout, and the possibility of "significant" losses if it lost a claim for damages connected with the blackout. The Australian Energy Market Operator found that the blackout was caused by catastrophic failures triggered by a series of tornadoes that knocked down three main transmission lines. Its investigations also found that many of the state's wind farms had software for system protection at settings hitherto unknown to AEMO that took them off-line after a series of faults caused by the downed transmissions lines. "These system protection measures led to a reduction or even stoppage of such wind farms' output and hence an increase in imported power flowing into the network, specifically from the neighbouring state of Victoria, through an inter-connector that overloaded and was tripped, leading to a complete system shut-down," Neoen notes, Neoen says there is a possibility that a yet to be delivered report by the Australian Energy Regulator could impose fines of up to $20,000 to Hornsdale – and other wind farms – for "non-compliance" with certain National Electricity Rules. Only the first 100MW stage of Hornsdale was operating at the time. "(Neoen) believes it has a strong basis to contest any infringement notice that may be issued," it says in its document. But it also notes that any legal battle could be drawn out and expensive. The French-owned renewable energy developer Neoen says there is a risk that wind farms in South Australia could face a class action suit over the state-wide blackout in September, 2016. The risk was cited in Neoen's documentation for its upcoming initial public offering, where it will seek to raise $A850 million in a share market float. "The imposition of a penalty would increase the risk of a class action lawsuit against (Hornsdale 1) by claimants requesting compensation for damage incurred in connection with the blackout. "Defending against such legal action would be costly and any related losses could be significant." A spokesman for the AER said the report was expected to be delivered by the end of the year. The report is expected to be comprehensive, and will also look closely at the actions of AEMO, and its decision on that day not to take preventative action -- such as putting extra capacity on standby and by dialling down the imports from Victoria (actions which are now standard) despite warnings of storm activity. The report may also look at why AEMO didn't know about the software settings on the wind farm. It should also investigate the settings on the country's big synchronous generators, with many analysts and reports suggesting they present a big threat to system security because of control systems that have been allowed to loosen. Those settings have since been rectified, AEMO has taken a more cautious approach to dealing with credible contingencies, has introduced new rules about the amount of back-up needed in South Australia, is taking a closer look at weather forecasts, and also has the Tesla big battery to provide support at critical times, such as when two big transmissions lines failed last month.[GN] NEW MEXICO: Corrections Dept. Sued over Employment Discrimination ----------------------------------------------------------------- SANDY TRAINER, on behalf of herself and all others similarly situated, the Plaintiff, v. STATE OF NEW MEXICO CORRECTIONS DEPARTMENT, the Defendant, Case no. 1:18-cv-00908 (D. N.M., Sept. 26, 2018), alleges that the Plaintiff and those similarly situated were systematically discriminated against on the basis of their sex by being disproportionately misclassified as independent contractors. According to the complaint, the Plaintiff and other female employees of the State of New Mexico have been systematically misclassified by the State of New Mexico as "independent contractors" despite being, in fact, employees of the State of New Mexico as defined under State and Federal Law. The Plaintiff and other wrongly-classified employees were harmed as a result of the State of New Mexico’s misclassification of its employees because they did not receive the same benefits as similarly situated male employees, including but not limited to time-and-a-half for overtime, and because they paid taxes and other expenses that should have been paid by the State of New Mexico, and were made ineligible for benefits, including medical, retirement plan, and unemployment benefits, the lawsuit says. The Defendant operates prisons in the state of New Mexico.[BN] Attorneys for Plaintiff: Andrew Indahl, Esq. ALTURA LAW FIRM 500 Marquette Dr. NW, Suite 1200 Albuquerque NM 87102 E-mail: andy@alturalawfirm.com - and - Anthony Spratley, Esq. GENUS LAW GROUP 500 Marquette Dr. NW, Suite 1200 Albuquerque NM 87102 E-mail: aspratley@genuslawgrp.com NEW YORK UNIVERSITY: Workers Appeal ERISA Class Action Dismissal ---------------------------------------------------------------- Adam Lidgett, writing for Law360, reported that a class of New York University workers have appealed to the Second Circuit their recent loss in an Employee Retirement Income Security Act case. [GN] NEW ZEALAND: $6MM Taxpayers' Money Spent to Defend Kiwifruit Case ----------------------------------------------------------------- Gerard Hutching, writing for Stuff, reports that taxpayers have so far spent $6 million to defend the kiwifruit claim case, and the Appeal Court hearing has yet to start. This makes it the most expensive primary sector court case on record. In June the 212 growers who joined a class action won a High Court case which found the Ministry for Primary Industries was negligent in allowing the disease Psa into the country in 2010. They are claiming $450m compensation. MPI said it was taking the case to appeal because it sought to "clarify the scope for government regulators to be sued in negligence". It added the High Court finding had the potential to "significantly impact on the Ministry's biosecurity operations". The claimants have filed a cross-appeal on the grounds that packer Seeka was owed a duty of care, contrary to the High Court finding, and that MPI was negligent in failing to inspect a shipment of banned kiwifruit plant material, infected with Psa, when it arrived from China. The 12-week High Court case was funded by litigation funder the LPF Group, chaired by former Supreme Court judge Bill Wilson. As a funder of the class action, LPF Group is to receive a percentage of the compensation granted. In response to an Official Information request, the Ministry for Primary Industries said the $6m figure did not include internal staffing costs, and it would not be possible to provide an exact figure for the total time spent by staff. The costs for consultants and experts paid directly by MPI was $400,000. Lawyers who acted in court for MPI were Mary Scholtens QC (until March 2016) and Jack Hodder QC (from March 2016), Crown counsel from Crown Law and Sally McKechnie from Simpson Grierson from mid-2017. Prior to mid-2017, Sally McKechnie was manager and Crown counsel at Crown Law and was responsible for leading the Crown's defence in the litigation. "Given her extensive involvement and knowledge up to that date, she continued to be engaged by MPI once she left for Simpson Grierson. From May 29, 2017 until July 31, 2018, costs incurred from Simpson Grierson were $479,913," MPI said. Kiwifruit Claim chairman John Cameron would not divulge how much his group had spent on the case, but said it was much less than the Crown's costs. "The landmark decision, which found MPI completely failed to do their job and was negligent in letting Psa into New Zealand, was emphatic. Litigation is expensive and the Governments' move to appeal the High Court decision will only add to the costs already incurred by the taxpayer." "We believe the Government is taking a massive risk in appealing the judge's clear findings, enough is enough -- it's time for MPI to accept full responsibility", Mr. Cameron said. The case has already set a record for being the most expensive primary sector trial, and it has the potential of heading to the Supreme Court. One of New Zealand's most celebrated defamation cases occurred in the mid-1980s, when the Bell-Booth Group sued the Ministry of Agriculture for damages of $11.5m over allegations regarding their liquid fertiliser Maxicrop. Eventually, after the country's longest civil case, Bell-Booth were awarded $25,000 but that decision was overturned in the Court of Appeal. The case cost Bell-Booth $2m, and MAF spent $1m defending it. In today's money, that defence would cost $2.75m. [GN] NIELSEN HOLDINGS: Labaton Sucharow Expands Class Action Lawsuit --------------------------------------------------------------- Labaton Sucharow LLP disclosed that on September 21, 2018, it filed a securities class action lawsuit on behalf of its client Plumbers and Steamfitters Local 60 Pension Trust ("UA Local 60") against Nielsen Holdings plc ("Nielsen" or the "Company") (NYSE: NLSN), and certain of its senior executives (collectively, "Defendants"). The action, which is captioned Plumbers and Steamfitters Local 60 Pension Trust v. Nielsen Holdings plc, No. 1:18-cv-06459 (N.D. Ill.), asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and U.S. Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder, on behalf of all persons or entities who purchased or otherwise acquired Nielsen common stock between February 11, 2016 and July 25, 2018, inclusive (the "Class Period"). The Complaint expands the class period asserted in the action against Nielsen captioned Gordon v. Nielsen Holdings plc, No. 1:18-cv-07143-JFK (S.D.N.Y.) ("Gordon"). Pursuant to the notice published on August 8, 2018 in connection with the filing of the first-filed Gordon action, as required by the Private Securities Litigation Reform Act of 1995, investors wishing to serve as Lead Plaintiff in the securities actions pending against Nielsen are required to file a motion for appointment as Lead Plaintiff by no later than October 9, 2018. Nielsen provides its customers with analytical data to assist in their comprehensive understanding of what products consumers buy and what programming consumers watch. Nielsen divides its business into two segments: (1) Buy; and (2) Watch. The Company's Buy segment tracks millions of retail transactions around the world and transforms this data into various products that assist consumer packaged goods ("CPG") companies in their marketing decisions. Nielsen's Watch segment "provides viewership and listening data and analytics primarily to the media and advertising industries across the television, radio, print, online, digital, mobile viewing and listening platforms." The Complaint alleges that during the Class Period, Defendants failed to disclose that: (1) Buy segment sales were experiencing a permanent decline due to major budget cuts instituted by the Company's CPG customers; (2) the Company's CPG clients were reducing and cancelling Nielsen custom project work in favor of real-time analytical solutions; (3) the Company recklessly disregarded its readiness for and the true risks of privacy related regulations and policies, including the General Data Protection Regulation ("GDPR"), on its current and future financial and growth prospects; (4) the Company's financial performance was far more dependent on Facebook and other third-party large data set providers than previously disclosed and privacy policy changes affected the scope and terms of access Nielsen would have to third-party data; (5) access to Facebook and other third-party provider data was becoming increasingly restricted for Nielsen and its clients; and (6) as a result, the Company's positive statements about its business, operations, and financial conditions lacked a reasonable basis. The truth regarding Nielsen's struggling business and financial condition was revealed through a series of disclosures culminating on July 26, 2018, when Nielsen announced disappointing results for its second quarter ended June 30, 2018. Nielsen attributed these disappointing results to the negative impact that the GDPR and other privacy regulations had on its business and the continued underperformance of its Buy segment. In addition, Nielsen announced that it had opened an in-depth strategic review of its Buy segment and that its Chief Executive Officer would retire at the end of 2018. On this news, the Company's stock price fell $7.46 per share, or more than 25 percent, to close at $22.11 per share on July 26, 2018. If you purchased or acquired Nielsen common stock during the Class Period, you are a member of the "Class" and may be able to seek appointment as Lead Plaintiff. Lead Plaintiff motion papers must be filed no later than October 9, 2018. The Lead Plaintiff is a court-appointed representative for absent members of the Class. You do not need to seek appointment as Lead Plaintiff to share in any Class recovery in this action. If you are a Class member and there is a recovery for the Class, you can share in that recovery as an absent Class member. You may retain counsel of your choice to represent you in this action. If you would like to consider serving as Lead Plaintiff or have any questions about this lawsuit you may; Francis P. McConville, Esq. Labaton Sucharow Telephone: (800) 321-0476 Email: fmcconville@labaton.com [GN] NISOURCE INC: Law Firm to Investigate Possible Securities Claims ---------------------------------------------------------------- Mary C. Serreze, writing for MASSLive, reports that a Pennsylvania law firm said on Sept. 14 it intends to investigate NiSource, Inc. and its officers for "possible violations of federal securities law." NiSource stocked tanked nearly 12 percent on Sept. 14, losing $3.29 and closing at $24.79, "thereby injuring investors," the law firm of Howard G. Smith said in an announcement. NiSource (NYSE:NI), based in Indiana, is the parent of Columbia Gas of Massachusetts, implicated in a series of fires and explosions on Sept. 14. The disaster destroyed or damaged dozens of homes in Andover, North Andover, and Lawrence. One person was killed and many more were injured. Thousands were forced to evacuate. The National Transportation Safety Board confirmed that over-pressurization of a natural gas main belonging to Columbia Gas was a factor, but has not yet determined the cause. Columbia had been working in the area on an upgrade project. Smith urged people to get in touch with his firm if they purchased NiSource securities or have information to share. The law firm was not immediately available for comment on Sept. 14 on the topic of any potential securities class action lawsuit. NiSource had been considered a secure investment, and its leading fund investor recently loaded up on utility stocks as "the safest, most defensive sector in the S&P 500," Reuters reported. NiSource holds utility subsidiaries in seven states and serves nearly 4 million customers, according to its website. It distributes natural gas and electricity, and also generates power and operates transmission lines. Columbia Gas has more than 313,000 customers in 65 Massachusetts cities and towns. It has been fined more than $100,000 by state regulators over the past eight years, records show. In a recent filing with federal pipeline safety regulators, Columbia Gas reported 471 miles of old cast-iron and wrought-iron gas distribution lines in the state. Part of a NiSource-owned pipeline exploded in Sissonville, West Virginia in 2012. The NTSB found corrosion was to blame, according to local television reports. The pipeline had not been inspected since 1988. [GN] O.P.E.N. AMERICA: Mark Cries Fraud, Sues to Recover Minimum Wages ----------------------------------------------------------------- Ruth Mark, on behalf of herself and on behalf of all similarly situated individuals, Plaintiff, v. O.P.E.N. America, Inc., Defendant, Case No. 18-cv-02412, (D. Colo., September 20, 2018) seeks to recover minimum wages, damages, attorneys' fees and costs pursuant to the Fair Labor Standards Act and the Colorado Minimum Wage and Overtime Law; and actual, compensatory, and punitive damages resulting from fraud, negligent misrepresentation and breach of the duty of good faith and fair dealing under the Arizona Consumer Fraud Act. O.P.E.N. America, Inc. is a large, national cleaning company that cleans commercial, industrial, and office facilities in several states. It allegedly requires its workers to incorporate into separate LLCs and enter into franchise agreements under which they purportedly operate as independent companies. Mark was promised a small cleaning business franchise but ended working brutal hours for meager pay as a cleaning worker. Being a foreigner, she did not understand the differences between being a franchisee and an employee, says the complaint. [BN] Plaintiff is represented by: David H. Seligman, Esq. Alexander N. Hood, Esq. TOWARDS JUSTICE 1410 High St., Suite 300 Denver, CO 80218 Tel: (720) 248-8426 Fax: (303) 957-2289 Email: alex@towardsjustice.org david@towardsjustice.org OCH-ZIFF:Oks Settlement w/ Investors After Class Action Certified ----------------------------------------------------------------- Kelly Swanson, writing for Global Investigations Review, reports that Och-Ziff has agreed in principle a settlement with investors who sued the hedge fund for allegedly failing to disclose a government probe into foreign bribery, according to court documents.[GN] OPTIMA COMPUTERS: Bitcoin Users Seek Class Action in Connecticut ---------------------------------------------------------------- Bob Audette, writing for Brattleboro Reformer, reports that with more than 200,000 users having spent nearly $30 million on cryptocurrency that didn't actually exist, plaintiffs in a civil suit in Connecticut are pushing for their suit to be reclassified as a class action. "There are several thousand class members here," wrote Mark Kindall -- mkindall@ikrlaw.com -- and Robert A. Izard -- rizard@ikrlaw.com -- of Izard, Kindall & Raave in West Hartford. "Given the complexity of securities litigation and the size of the claims of individual Class members, it would not make sense for Class members to proceed individually." Messrs. Kindall and Izard represent three men who claim they were misled by Josh Garza into investing in a cryptocurrency between Aug. 1, 2014, and Dec. 1, 2015. But, wrote Messrs. Kindall and Izard, "An enormous group of potential plaintiffs, with losses ranging from millions of dollars to tens of dollars," deserve to be represented in the suit, as well. On Friday, Sept. 14, Mr. Garza pleaded guilty in a federal court in Hartford to wire fraud and was sentenced to 21 months in prison followed by six months of home confinement and three years of probation. Mr. Garza was also ordered to pay nearly $10 million in restitution to his victims. Mr. Garza founded the now-defunct Optima Computers in Brattleboro, Vt., in 2002. Once Optima went out of business, Garza and his then-business mentor, Stuart Fraser, founded Great Auk Wireless High Speed Internet, also in Brattleboro. Great Auk was eventually bought out and no longer exists. In 2014, Garza and Fraser also founded GAW Miners and ZenMiner, bitcoin mining companies. "This case might sound complicated," wrote Messrs. Kindall and Izard. "Though cloaked in technological sophistication and jargon, defendants' fraud was simple at its core -- defendants sold what they did not own and misrepresented the nature of what they were selling." The civil suit against Mr. Garza and Mr. Fraser was filed in 2016, accusing them of running a bitcoin Ponzi scheme that resulted in the plaintiffs losing more than $10 million. Several months after the filing, Mr. Garza was dismissed from the suit. Mr. Fraser, who has been characterized by the plaintiffs as Mr. Garza's mentor and "the man behind the curtain," has contended that he had very little, if any, control of Garza's actions in the scheme. Mr. Fraser has claimed the plaintiffs made "a deal with the Devil, agreeing with the previously alleged mastermind of the fraud . . . Joshua Garza, to dismiss all the claims against him in exchange for purported information from him in the hope that it could cure the deficiencies in their claims against Fraser." Mr. Fraser's attorneys have filed motions in the U.S. District Court for the District of Vermont, where the civil suit has been field, seeking the notes of the meetings between Mr. Garza and the attorneys for the plaintiffs. The judge has not yet ruled on that request. According to the motion requesting consolidation into a class action suit, Mr. Garza and Mr. Fraser were required to register their products as securities under the Connecticut Uniform Securities Act, which they did not. Mr. Garza also made misrepresentations about the nature of products the companies sold, including how much computing power was available to conduct the calculations that create a cryptocurrency and that the companies had a $100 million reserve to back up the $20 value of each of the bitcoins produced. In an internal email, Mr. Garza admitted that the companies would need to hold huge amounts of cash to guarantee the $20 price and "the entire model is flawed," noted the class action filing. In fact, noted one of the former employees of the companies, there wasn't actually any bitcoin being mined. "Instead," wrote Messrs. Kindall and Izard, "the Companies used payments they received from new investors to make payouts to older investors." "I knew that if his mindset was to over-leverage the mining capacity to bring in more revenue, that that was not going to be sustainable for long, plus it's illegal, I believe," stated GAW Miners' Chief Technical Officer. "It's a Ponzi scheme." "No reasonable investor would have purchased the products if they knew the truth about defendants' fraudulent scheme," wrote Messrs. Kindall and Izard. "The fact that investors paid for the products indicates they were unaware of the falsehoods." The Companies also represented that thousands of merchants, including Amazon.com, had agreed to accept PayCoin, when "In fact, no such agreements had been made with Amazon or any other significant retailer. This promise was particularly significant because widespread commercial adoption had not been achieved by any other cryptocurrency and was considered crucial for long-term value." "For the foregoing reasons and authorities, plaintiffs request that the Court grant their motion to certify the class," wrote Messrs. Kindall and Izard. [GN] OXY USA: Gas Royalty Owner Seeks to Certify Class Action -------------------------------------------------------- Michael Phillis, writing for Law360, reported that a gas royalty owner has asked a Kansas federal court to certify its proposed class of more than 1,800 owners in a suit against Oxy USA Inc. [GN] PENN CREDIT: Alicea Suit Asserts FDCPA Breach --------------------------------------------- A class action lawsuit has been filed against Penn Credit Corporation. The case is styled as Madeline Alicea individually and on behalf of all others similarly situated, Plaintiff v. Penn Credit Corporation, Defendant, Case No. 1:18-cv-05661 (E.D. N.Y., Oct. 10, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Penn Credit Corporation provides accounts receivables management services. The company offers third party collection, small balance recovery, legal collection, letter campaign, and extended business office function services. It serves bankcard, commercial, direct marketing, education, government, healthcare, retail, telecommunications, and utilities sectors. The company was incorporated in 1987 and is based in Harrisburg, Pennsylvania.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com PPDAI GROUP: Wolf Haldenstein Files Class Action Lawsuit -------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP disclosed that a class action lawsuit has been filed on behalf of all persons or entities that purchased American Depositary Receipts ("ADR's") of PPDAI Group Inc. ("PPDAI" or the "Company") (NYSE:PPDF). If you purchased ADR's of PPDAI Group Inc. directly on or subsequent to the Company's initial public offering ("IPO") on November 10, 2017, and incurred losses on your investment, please contact Wolf Haldenstein. All investors who have incurred losses in ADR's of PPDAI Group Inc. are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information about the firm on our website, www.whafh.com. PPDAI Group Inc. provides consumer financing services. The Company offers online consumer financing platform and asset class consumer loan services. PPDAI Group serves clients in China. The filed complaint concerns whether PPDAI's filings with the U.S. Securities and Exchange Commission ("SEC") in connection with the IPO contained untrue statements of material fact or omitted material information regarding PPDAI's business practices, the interest rates on loans made through PPDAI's platform, or the quality of loans made through PPDAI's platform. In late November 2017, shortly after the IPO, ADR's of PPDAI dropped significantly on concerns that the Chinese government was considering increased regulation of the peer-to-peer loan industry in order to curb usurious interest rates and other abuses. If you wish to discuss this action or have any questions regarding your rights and interests in this potential case, please immediately Gregory Stone Director of Case and Financial Analysis Wolf Haldenstein Adler Freeman & Herz LLP Tel: (800) 575-0735 (212) 545-4774 Email: gstone@whafh.com classmember@whafh.com[GN] PURDUE PHARMA: Pioneer Tel. Benefit Plan Files RICO Suit in OK -------------------------------------------------------------- A class action lawsuit has been filed against Purdue Pharma LP, et al. The case is styled Pioneer Telephone Cooperative Inc. Employee Benefits Plan, individually and on behalf of all others similarly situated, Bios Companies Inc. Welfare Plan, individually and on behalf of all others similarly situated, Pioneer Telephone Cooperative Inc., individually and on behalf of all others similarly situated and as plan sponsor and fiduciary of Pioneer Telephone Cooperative Inc. Employee Benefits Plan, Bios Companies Inc., individually and on behalf of all others similarly situated and as plan sponsor and fiduciary of Bios Companies Inc., Welfare Plan Plaintiffs v. Purdue Pharma LP, Purdue Pharma Inc., The Purdue Frederick Company Inc., Endo Health Solutions Inc. Endo Pharmaceuticals Inc., Par Pharmaceutical Inc, Par Pharmaceutical Companies Inc. formerly known as: Par Pharmaceutical Holdings Inc., Janssen Pharmaceuticals Inc., Ortho-McNeil- Janssen Pharmaceuticals Inc. now known as Janssen Pharmaceuticals Inc., Janssen Pharmaceutica Inc. now known as Janssen Pharmaceuticals Inc., Johnson & Johnson, Noramco Inc., Teva Pharmaceutical Industries Ltd, Teva Pharmaceuticals USA Inc., Cephalon Inc., Allergan plc formerly known as: Actavis plc., Allergan Finance LLC formerly known as: Actavis Inc. formerly known as: Watson Pharmaceuticals Inc., Watson Laboratories Inc., Actavis LLC, Actavis Pharma Inc formerly known as: Watson Pharma Inc., Insys Therapeutic Inc., Mallinckrodt plc, Mallinckrodt LLC, SPECGX LLC, Amerisourcebergen Drug Corporation, Anda Inc., Cardinal Health Inc., McKesson Corporation, Defendants, Case No. 5:18-cv-00994-G (W.D. Okla., Oct. 9, 2018). The Plaintiffs filed the case under the Racketeer Influenced and Corrupt Organizations Act. Purdue Pharma L.P. is a privately held pharmaceutical company owned principally by parties and descendants of Mortimer and Raymond Sackler. The company's branches include Purdue Pharma Inc., The Purdue Frederick Company, Purdue Pharmaceutical Products L.P., and Purdue Products L.P. The Frederick Purdue Company provides research, development, production, marketing, sales, and licensing of prescription and non-prescription medicines and healthcare products. The Company offers specializes in pain medication research, as well as other therapeutic areas, including sleep and gastrointestinal disorders. The Frederick Purdue operates in the United States. Endo Health Solutions Inc. provides specialty healthcare solutions in the United States and internationally. The company’s Endo Pharmaceuticals segment offers branded prescription products, including Lidoderm, Opana ER, Percocet, Voltaren Gel, Frova, Supprelin LA, Vantas, Valstar, and Fortesta Gel for pain, urology, endocrinology, and oncology. Its Qualitest segment provides non-branded generic products in the pain management, urology, central nervous system disorders, immunosuppression, oncology, women’s health, and hypertension markets. Endo Health Solutions Inc. provides specialty healthcare solutions in the United States and internationally. The company’s Endo Pharmaceuticals segment offers branded prescription products, including Lidoderm, Opana ER, Percocet, Voltaren Gel, Frova, Supprelin LA, Vantas, Valstar, and Fortesta Gel for pain, urology, endocrinology, and oncology. Its Qualitest segment provides non-branded generic products in the pain management, urology, central nervous system disorders, immunosuppression, oncology, women’s health, and hypertension markets. Par Pharmaceutical, Inc. develops, manufactures, and distributes generic drugs in the United States. The company was incorporated in 2003 and is based in Spring Valley, New York. Par Pharmaceutical, Inc. operates as a subsidiary of Endo International plc. Par Pharmaceutical Companies, Inc. develops, licenses, manufactures, markets, and distributes generic drugs in the United States. It operates through two segments, Par Pharmaceutical and Par Specialty Pharmaceuticals. The Par Pharmaceutical segment markets generic products under Par Pharmaceutical brand name and sterile products under the Par Sterile brand. Janssen Pharmaceuticals, Inc. manufactures and markets prescription pharmaceutical products. It provides medicines for health concerns in various therapeutic areas, including attention deficit hyperactivity disorder, pain management, acid reflux and infectious diseases, women’s health, and mental health (bipolar I disorder and schizophrenia); neurologics, including Alzheimer’s disease, epilepsy, and migraine prevention and treatment; and SYMTUZATM, a darunavir-based single-tablet regimen for the treatment of human immunodeficiency virus type 1 (HIV-1) in treatment-naïve and certain virologically suppressed adults. As of December 26, 1996, Ortho-McNeil Pharmaceutical, LLC was acquired by Janssen Pharmaceuticals, Inc. Ortho-McNeil Pharmaceutical, LLC develops and provides prescription drugs for women’s health, analgesics, anti-infectives, anti-epileptics, and urology in the United States. It offers various therapeutic products in the areas of contraceptive and urology. The company also offers vaginal therapy, a topical prescription medication indicated for the local treatment of vulvovaginal candidiasis. In addition, it offers various therapeutics for the treatment of overactive bladder. The company was founded in 1993 and is based in Raritan, New Jersey. Johnson & Johnson is an American multinational medical devices, pharmaceutical and consumer packaged goods manufacturing company founded in 1886. Its common stock is a component of the Dow Jones Industrial Average and the company is listed among the Fortune 500. Noramco, Inc. produces pain management and active pharmaceutical ingredients that provide the inherent therapeutic benefit in pharmaceuticals. The company offers amphetamine-L-aspartate, amphetamine-sulfate, dextroamphetamine-saccharate, dextroamphetamine-sulfate, buprenorphine base, buprenorphine HCl, codeine phosphate, fentanyl base, hydrocodone bitartrate, hydromorphone HCl, methylphenidate HCl, morphine sulfate, naloxone HCl, naltrexone base, naltrexone HCl, oxycodone base, oxycodone HCl, and oxymorphone HCl. Teva Pharmaceutical Industries Limited, a pharmaceutical company, develops, manufactures, markets, and distributes generic medicines and a portfolio of specialty medicines worldwide. It operates through two segments, Generic Medicines and Specialty Medicines. The Generic Medicines segment offers sterile products, hormones, narcotics, high-potency drugs, and cytotoxic substances in various dosage forms, including tablets, capsules, injectables, inhalants, liquids, ointments, and creams. This segment also develops, manufactures, and sells active pharmaceutical ingredients. Teva Pharmaceuticals USA, Inc. manufactures and markets generic drugs in the United States. It offers generic products for various therapeutic options, such as cardiovascular, anti-infective, central nervous system, anti-inflammatory, oncolytic, anti-diabetic, analgesic, dermatologic, respiratory, and women’s health. The company offers its products in various dosage forms, such as tablets, capsules, injectables, creams, ointments, inhalants, solutions, and suspensions. It serves patients through distributors. Teva Pharmaceuticals USA, Inc. was formerly known as Lemmon Pharmacal Company and changed its name to Teva Pharmaceuticals USA, Inc. in 1996. Cephalon, Inc. engages in the discovery and development of medicines for central nervous system disorders, pain, and cancer. It offers NUVIGIL (armodafinil) tablets for improving wakefulness in patients with excessive sleepiness associated with treated obstructive sleep apnea and shift work disorder, also known as shift work disorder and narcolepsy; TREANDA (bendamustine HCl) for injection for the treatment of patients with chronic lymphocytic leukemia; and AMRIX (Cyclobenzaprine Hydrochloride extended-release capsules), which is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute and painful musculoskeletal conditions. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. It operates through US Specialized Therapeutics, US General Medicine, and International segments. The company offers a portfolio of products for the central nervous system, eye care, medical aesthetics and dermatology, gastroenterology, women’s health, urology, and anti-infective therapeutic categories. Allergan Finance, LLC develops, manufactures, and commercializes generic and branded pharmaceutical products, and biologics and medical devices for patients worldwide. It offers products in central nervous system, eye care, medical aesthetics, gastroenterology, women’s health, urology, cardiovascular, and anti-infective therapeutic categories. Allergan Finance, LLC was formerly known as Actavis, Inc. The company was incorporated in 2005 and is based in Parsippany, New Jersey. Allergan Finance, LLC operates as a subsidiary of Allergan plc. Watson Laboratories, Inc. manufactures pharmaceutical drugs. The company was incorporated in 1992 and is based in Corona, California. Watson Laboratories, Inc. operates as a subsidiary of ATeva Pharmaceutical Industries Limited. Actavis Pharma, Inc. develops, manufactures, and markets generic pharmaceutical products. It offers solid dosage and sterile dosage generic products. The company was formerly known as Watson Pharma, Inc. The company was founded in 1931 and is based in Parsippany, New Jersey. As of August 28, 2000, Actavis Pharma, Inc. operates as a subsidiary of Teva Pharmaceutical Industries Limited. Insys Therapeutics, Inc., a specialty pharmaceutical company, develops and commercializes supportive care products. The company markets SUBSYS, a sublingual fentanyl spray for breakthrough cancer pain in opioid-tolerant adult patients; and SYNDROS, an orally administered liquid formulation of dronabinol for the treatment of chemotherapy-induced nausea and vomiting, and anorexia associated with weight loss in patients with AIDS. Mallinckrodt Pharmaceuticals, based in Staines-upon-Thames, England, with its U.S. headquarters in St. Louis, Missouri, produces specialty pharmaceutical products, including generic drugs and imaging agents. Mallinckrodt LLC manufactures pharmaceutical products, including opiates and synthetic narcotics, diagnostic medical imaging products, peptides used for various therapeutics, and stearates and other specialty inorganics. Mallinckrodt LLC was formerly known as Mallinckrodt, Inc. and changed its name to Mallinckrodt LLC in June 1997. The company was founded in 1867 and is based in St Louis, Missouri with additional location in Hayward, California and Hazelwood, Missouri. Mallinckrodt LLC operates as a subsidiary of Mallinckrodt Public Limited Company. AmerisourceBergen Drug Corporation distributes pharmaceuticals products, equipment, and systems. The company provides global product sourcing, generic purchasing programs, technology solutions, pharmacy network and programs, and pharmaceutical packaging solutions. The company serves healthcare providers, independent retailers, and pharmacies. AmerisourceBergen Drug Corporation was formerly known as AmeriSource Corporation and changed its name to AmerisourceBergen Drug Corporation in January 1995. Anda, Inc. distributes generic, brand, specialty, and over-the-counter pharmaceutical (OTC) products to retail independent and chain pharmacies, nursing homes, mail order pharmacies, hospitals, clinics, and physician offices in the United States. It offers vaccines, injectables, medical/surgical supplies, OTCs/vitamins, and pet medications. The company helps to meet the needs of customers in long term care pharmacies, managed care facilities, mail order pharmacies, physician offices, clinics, hospitals, and student health centers. McKesson Corporation provides pharmaceuticals and medical supplies in the United States and internationally. It operates in three segments: U.S. Pharmaceutical and Specialty Solutions, European Pharmaceutical Solutions, and Medical-Surgical Solutions. The company distributes branded, generic, specialty, biosimilar, and over-the-counter pharmaceutical drugs, as well as other healthcare-related products; and offers practice management, technology, clinical support, and business solutions to community-based oncology and other specialty practices.[BN] The Plaintiffs appear pro se. QUALCOMM INC: Court Certifies Class in Antitrust Suit ----------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Plaintiffs' Motion for Class Certification in the case captioned IN RE: QUALCOMM ANTITRUST LITIGATION. Case No. 17-MD-02773-LHK (N.D. Calif.). Plaintiffs Sarah Key, Terese Russell, Carra Abernathy, Leonidas Miras, and James Clark bring a putative class action against Defendant Qualcomm Incorporated (Qualcomm) alleging antitrust violations. The Plaintiffs' alleged that Qualcomm has used its cellular SEPs and its modem chips monopoly to harm competition in certain modem chips markets. The Plaintiffs seek to certify the following class under Federal Rule of Civil Procedure 23: All natural persons and entities in the United States who purchased, paid for, and/or provided reimbursement for some or all of the purchase price for all UMTS, CDMA (including CDMAone and cdma2000) and/or LTE cellular phones (Relevant Cellular Phones) for their own use and not for resale from February 11, 2011, through the present (the Class Period) in the United States. This class excludes (a) Defendant, its officers, directors, management, employees, subsidiaries, and affiliates; (b) all federal and state governmental entities; (c) all persons or entities who purchased Relevant Cellular Phones for purposes of resale; and (d) any judges or justices involved in this action and any members of their immediate families or their staff. LEGAL STANDARD Rule 23(a) provides that a district court may certify a class only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. First, the Court finds that the Plaintiffs have satisfied Rule 23(a)(1)'s numerosity requirement. Pursuant to Rule 23(a)(1), the Plaintiffs must show that the class is so numerous that joinder of all members is impracticable. Here, the Plaintiffs define their class by reference to objective criteria namely, persons and entities who purchased particular types of cell phones in the United States from February 11, 2011 to the present. The parties agree that the class members number in the hundreds of millions. Thus, the numerosity requirement is satisfied. Second, the Court finds that the Plaintiffs have satisfied Rule 23(a)(2)'s commonality requirement. Rule 23(a)(2) requires that there are questions of law or fact common to the class. Nevertheless, even a single common question will do. As this Court has previously recognized, antitrust liability alone constitutes a common question. Thus, Plaintiffs here have satisfied Rule 23(a)(2)'s commonality requirement by raising the issues whether Qualcomm's business practices are anticompetitive and whether each class member suffered the same injury as a result of Qualcomm's anticompetitive conduct. Third, the Court finds that the Plaintiffs have satisfied Rule 23(a)(3)'s typicality requirement. The permissive typicality requirement requires only that the representative's claims are reasonably co-extensive with those of the absent class members; they need not be substantially identical. Typicality is present when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendants' liability. Thus, in antitrust cases, typicality usually will be established by plaintiffs and all class members alleging the same antitrust violations by defendants. Here, all class members allege the same injury stemming from the same conduct by Qualcomm. Accordingly, the Court finds that the Plaintiffs' interests align with the interests of the class, and the typicality requirement of Rule 23(a)(3) is met. Finally, the Court finds that the Plaintiffs satisfy Rule 23(a)(4)'s adequacy requirement. Legal adequacy of a class representative under Rule 23(a)(4) turns on two inquiries: (1) whether named plaintiffs and their counsel have any conflicts of interest with other class members and (2) whether named plaintiffs and their counsel will prosecute the action vigorously on behalf of the class. As noted above, Plaintiffs and class members share an interest in proving that Qualcomm's conduct violated the antitrust laws and caused injury to consumers.1 In addition, Plaintiffs and Class Counsel do not have any conflicts of interest with class members and have demonstrated a commitment to prosecuting this action vigorously. Therefore, the Plaintiffs have satisfied Rule 23(a)(4). Rule 23(b) The Plaintiffs contend that their proposed class meets the requirements of two subsections of Rule 23(b), namely, Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(3) The Plaintiffs first seek to certify their proposed class for damages and injunctive relief under Rule 23(b)(3). As noted above, Rule 23(b)(3) can be broken into two component pieces: (1) predominance, and (2) superiority. Predominance Under Rule 23(b)(3), plaintiffs must show that the questions of law or fact common to class members predominate over any questions affecting only individual members. To establish a federal antitrust claim, plaintiffs typically must prove (1) a violation of antitrust laws, (2) an injury they suffered as a result of that violation, and (3) an estimated measure of damages. Antitrust Violation First, Plaintiffs provide substantial evidence that Qualcomm requires OEMs to accept a separate license to Qualcomm's cellular SEPs in order to gain access to Qualcomm's modem chips. Qualcomm admitted in interrogatory responses that Qualcomm does not sell modem chips to unlicensed OEMs. Second, the Plaintiffs set forth significant evidence that Qualcomm has adopted a uniform policy of refusing to offer exhaustive licenses for its cellular SEPs to competing modem chip manufacturers. The Plaintiffs rely on evidence that is common to the class, including internal Qualcomm documents, licenses, and licensing negotiations. Third, and finally, the Plaintiffs' allegation that Qualcomm entered into exclusive dealings with Apple depends upon evidence that does not vary from class member to class member. In particular, Plaintiffs cite to two agreements between Qualcomm and Apple -- namely, a 2011 agreement and a 2013 agreement (which amended the 2011 agreement). Under the 2011 and 2013 agreements, Apple would lose past and future lump-sum incentive payments from Qualcomm if Apple launched any new products that contained modem chips from a manufacturer other than Qualcomm. This substantial evidence presented by Plaintiffs suggests that adjudication of Qualcomm's alleged antitrust violations will turn on legal and factual issues that are common to the proposed class. Accordingly, the Court finds that common questions will predominate with respect to the alleged antitrust violations. Superiority Rule 23(b)(3) provides four non-exhaustive factors for a court to consider in determining whether a class action is superior to other methods of adjudication. These factors are: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. The first factor is each class member's interest in individually controlling the prosecution or defense of separate actions. Where recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class certification. Here, the amount at stake for each individual class member is too small to bear the risks and costs of litigating a separate action. Litigation costs would be high, given that the case involves the intersection of complex intellectual property and economic issues and requires substantial expert testimony. As one district court in this district recognized, in antitrust cases such as this, the damages are likely to be too small to justify litigation, but a class action would offer those with small claims the opportunity for meaningful redress. The second factor is the extent and nature of any litigation concerning the controversy already commenced by or against members of the class. Pursuant to an order from the Judicial Panel on Multidistrict Litigation (JPML), federal cases filed throughout the country were transferred to this Court for coordinated or consolidated pretrial proceedings. As the JPML articulated, the actions shared factual questions about whether Qualcomm's conduct violated federal and state antitrust and consumer protection laws and involved overlapping putative nationwide classes of cell phone purchasers. Consequently, this factor too weighs in favor of certification. The third factor is the desirability or undesirability of concentrating the litigation of the claims in the particular forum. When the JPML issued its transfer order, it selected this district as the appropriate transferee district. The JPML observed that this district presents a convenient and accessible forum with the necessary judicial resources and expertise to manage this litigation efficiently. More specifically, numerous actions were already pending in this district, including the FTC enforcement action. Thus, this factor likewise supports certification. Qualcomm also raises practical problems based on the sheer size of the class. Qualcomm broadly contends that a class of hundreds of millions of consumers holding such a large amount of claims is inherently unmanageable, unfair, and inferior to alternative forms of adjudication. More precisely, Qualcomm worries about difficulties in providing notice, managing damages inquiries, and administering and verifying claims. However, Plaintiffs' responses to these points are persuasive. Plaintiffs note that many courts have certified broad classes with similarly high numbers of potential class members where common evidence rendered class treatment manageable. Thus, questions regarding manageability weigh in favor of finding class treatment superior to other methods of adjudication. In sum, the Court finds that the proposed class members' interests weigh in favor of having this case litigated as a class action. In particular, the nature of Qualcomm's alleged overarching conduct and the desirability of concentrating the litigation in one proceeding weigh heavily in favor of finding that class treatment is superior to other methods of adjudication of the controversy. Nor do manageability concerns favor another form of adjudication. Therefore, Plaintiffs have satisfied the superiority requirement. Because Plaintiffs have also satisfied the predominance requirement, the Court GRANTS Plaintiffs' motion for class certification under Rule 23(b)(3). A full-text copy of the District Court's September 27, 2018 Order is available at https://tinyurl.com/ycdazofv from Leagle.com. Karen Stromberg, Samuel Roecker, Thomas Lammel, Mary Galloway & Danielle LaGrave, Plaintiffs, represented by Jeffrey Greg Lewis – jlewis@kellerrohrback.com -- Keller Rohrback L.L.P. Thomas McMahon, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Mark P. Robinson, Jr. -- mrobinson@rcrsd.com -- Robinson Calcagnie, Inc., Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Boardsports School LLC, Plaintiff, represented by Britt Ann Cibulka, Bleichmar Fonti & Auld, LLP, Lesley Elizabeth Weaver, Bleichmar Fonti & Auld LLP, Mili G. Desai, Bleichmar Fonti & Auld LLP & Robyn Rose English, Bleichmar Fonti and Auld. Qualcomm Incorporated, a Delaware Corporation, Defendant, represented by Daniel Allen Sasse -- dsasse@crowell.com -- Crowell & Moring LLP, Richard J. Stark -- rstark@cravath.com -- Cravath, Swaine and Moore LLP, pro hac vice, Robert Addy Van Nest -- rvannest@keker.com -- Keker, Van Nest & Peters LLP, Antony L. Ryan -- aryan@cravath.com -- Cravath, Swaine Moore LLP, pro hac vice, Asim M. Bhansali -- ABHANSALI@KBLFIRM.COM -- Kwun Bhansali Lazarus LLP, Bryn Anderson Williams -- bwilliams@keker.com -- Keker, VanNest and Peters, Cody Shawn Harris -- charris@keker.com -- Keker and Van Nest LLP, Eugene Morris Paige -- epaige@keker.com - Keker & Van Nest Peters LLP, Evan R. Chesler -- echesler@cravath.com -- Cravath Swaine & Moore LLP, Gary Andrew Bornstein -- gbornstein@cravath.com -- Cravath, Swaine and Moore, pro hac vice, Geoffrey T. Holtz -- gholtz@morganlewis.com -- Morgan, Lewis & Bockius LLP, James W. Carlson, Cravath, Swaine Moore LLP, pro hac vice, Jesselyn K. Friley -- jfriley@keker.com -- Keker Van Nest and Peters, Joe Wesley Earnhardt -- wearnhardt@cravath.com -- Cravath, Swaine and Moore LLP, pro hac vice, Justina Kahn Sessions -- jsessions@keker.com -- Keker, Van Nest & Peters LLP, Matan Shacham -- mshacham@keker.com -- Keker & Van Nest LLP, Michael Brent Byars, Cravath, Swaine Moore LLP, pro hac vice ROYAL WINNIPEG: Former Students Get Class Action Notices -------------------------------------------------------- Kevin Rollason, writing for Winnipeg Free Press, reports that thousands of former Royal Winnipeg Ballet School students are getting notices about a multimillion-dollar, class-action lawsuit against a former dance instructor who allegedly took intimate photos of students. The ballet school is sending a legal notice -- which was drafted by Toronto law firm Waddell Phillips Professional Corp. after receiving instruction by an Ontario judge -- to students who were at the school from 1984 to 2015. The notice asks former students if they were photographed by Bruce Monk in a private setting during that time. The notice says if they are a class member, there is nothing they need to do. If they don't want to be part of the legal action, they have to opt out by sending a signed letter, fax or email to lawyers handling the lawsuit. Lawyer Margaret Waddell said the ballet has the addresses of about 40 per cent of the dancers who passed through the school during those years and all are receiving copies of the notice. "It is in the thousands," Ms. Waddell said on Sept. 14. "The professional division had just a few hundred per year, but this is also the recreational dancers, including the after-school and summer camps. There are thousands." Ms. Waddell said former students who get the legal notice aren't necessarily part of the class-action suit. "If you weren't privately photographed by Mr. Monk, then you are not part of the class. You don't have to opt out," she said. Ms. Waddell said so far, they have heard from 70 people who are potential class-action participants. They either came forward on their own or their names were put forward by others. Ms. Waddell said people have until Nov. 20 to decide if they want to stay in the lawsuit. Natasha Havrilenko, the RWB's communications manager, said the RWB cannot comment on anything connected to the lawsuit. "As a standard procedure of any class action, there is an opt-out notice period during which time we are ordered by the court to not communicate any information," Ms. Havrilenko said. Monk was a teacher, choreographer and photographer at the school for 28 years until the RWB let him go in 2015 after allegations against him surfaced. The lead plaintiff for the lawsuit, Sarah Doucet, alleges Monk persuaded her to let him take semi-nude photos of her as a teenager. She later learned he had distributed them. Ms. Doucet is suing for $50 million in damages on behalf of herself and other students. Another former student, who is not named in the lawsuit, is suing for $10 million. Unspecified special damages are being sought as well as $25 million in punitive and exemplary damages. It's similar to allegations contained in a separate lawsuit, which was filed in Manitoba Court of Queen's Bench by a former dance student, and remains before the courts. The woman, who is now in her 30s and has three children, is suing for $300,000 in general damages and $100,000 in punitive, aggravated and/or exemplary damages. She is also suing for unspecified special damages. None of the allegations in either the Winnipeg case or the Ontario class-action lawsuit has been proven in court. Monk and the RWB have filed statements of defence denying the allegations. In November 2016, Manitoba Justice announced that after an investigation, no criminal charges would be laid. "The Crown recommended that charges not be laid because a conviction was unlikely," a justice official said at the time. "Complainants were made aware of this decision and supports were offered through the province's victim services branch." [GN] RUSHMORE LOAN: Vaquilar et al. Allege Fraudulent Mortgage Deals --------------------------------------------------------------- ELMER PADUA VAQUILAR and JOSELYN GIRON VAQUILAR, individually, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. RUSHMORE LOAN MANAGEMENT SERVICES, GREEN TREE SERVICING, LLC , U.S. BANK, NATIONAL ASSOCIATION , MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,INC., ALL PERSONS , CORPORATIONS, ENTITY OR PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN , OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, OR ANY CLOUD ON PLAINTIFFS' TITLE THERETO AND ALL WHOSE TRUE NAMES ARE DOES 1 THROUGH 50, UNKNOWN, INCLUSIVE, the Defendants, Case No. 1:18-cv-00368-JAO-KSC (D. Haw., Sept. 26, 2018), seeks to recover damages and penalties from the Defendants' conduct in creating and using fraudulent mortgage assignments and mortgage note endorsement. According to the complaint, such fraudulent assignments and note endorsements formed the basis for the submission of at least tens of thousands false claims to the U.S . Department of Housing and Urban Development ("HUD") for payments pursuant to the mortgage insurance program administered by the Federal Housing Administration. To add insult to injury, not only did Defendants use the fraudulent assignments and endorsements for procure insurance payments from HUD, they also charged HUD the cost of filing the fraudulent documents in the foreclosure proceedings, the lawsuit says. Rushmore Loan provides residential mortgage loan servicing and customer support for performing, re-performing, and non-performing loans in the United States and Puerto Rico.[BN] The Plaintiffs appear pro se. S.G.E. MANAGEMENT: 5th Cir. Affirms Dismissal of RICO Claims ------------------------------------------------------------ The United States Court of Appeals, Fifth Circuit, issued an Opinion affirming the District Court's judgment dismissing the case captioned JERNARD GRIGGS, Plaintiff-Appellant, v. S.G.E. MANAGEMENT, L.L.C.; STREAM GAS & ELECTRIC, LIMITED, doing business as Stream Energy; STREAM S.P.E. G.P., L.L.C; STREAM S.P.E., LIMITED; IGNITE HOLDINGS, LIMITED, formerly known as Ignite Energy, Limited, doing business as Ignite, doing business as Ignite Powered by Stream Energy; CHRIS DOMHOFF; ROB SNYDER; PIERRE KOSHAKJI; DOUGLAS WITT; STEVE FLORES; MICHAEL TACKER; DONNY ANDERSON; STEVE FISHER; RANDY HEDGE; LOGAN STOUT; PRESLEY SWAGERTY, Defendants-Appellees. No. 17-50655. (5th Cir.). After the case had been stayed for a year without Griggs having submitted his claims to arbitration, the court dismissed the case without prejudice. When Plaintiff-Appellant Jernard Griggs began working as an Independent Associate (IA) for Ignite, he agreed to Ignite's Policies & Procedures, which includes an arbitration clause covering all claims between (1) any two or more IAs and (2) any IA and Ignite. The arbitration clause also gives the arbitrator the sole power to decide questions of arbitrability. Despite that, Griggs brought a class action in federal court, asserting RICO claims against Defendants-Appellees Ignite, Stream, their related entities, and several other IAs (Defendants). The district court (1) ruled that the parties had agreed to arbitrate arbitrability; (2) compelled arbitration; and (3) stayed the case pending arbitration. Voluntary Dismissal Under Rule 41(a) The Defendants contend that Griggs voluntarily dismissed the case under Federal Rule of Civil Procedure 41(a). A voluntary dismissal of a case without prejudice is not a final appealable decision. Here, after the district court compelled arbitration and stayed the case in November 2015, the parties submitted a status report in February 2016, notifying the court that Griggs had not submitted the dispute to arbitration. More than a year later, the court again ordered a status report, and the parties confirmed in June 2017 that Griggs still had not submitted the case to arbitration. The court then ordered Griggs to show cause why it should not dismiss the case for want of prosecution. Griggs responded that he disagreed with the Court's conclusion that this matter must go to arbitration and informed the court that he would not pursue arbitration. He added that he stood ready to litigate this case. Finally, Griggs stated different district courts do not stay, but dismiss, allowing the plaintiff to appeal an order of arbitration. Griggs will either litigate this matter now before this Court or will appeal when dismissed. These statements do not serve as a notice of dismissal, but rather are statements of inaction. If the district court had not dismissed the case, it is unlikely that the parties would have understood that Grigg's response to the show-cause order dismissed the case. Because that response was not a self-effectuating"27 notice of dismissal, it was not a voluntary dismissal under Rule 41(a). Dismissal Without Prejudice The Court thus must determine whether the district court's dismissal without prejudice supports appellate jurisdiction. The Defendants rely on the Supreme Court's decision in Microsoft v. Baker and a recent Fourth Circuit decision, Keena v. Groupon, Inc., to support their contention that a plaintiff may not appeal an order compelling arbitration merely by convincing the district court to dismiss the case. In Microsoft, the plaintiffs filed individual claims and class allegations against Microsoft. The district court struck the class allegations, effectively declining to certify the class. The Ninth Circuit denied the plaintiffs permission to appeal that decision under Rule 23(f). The plaintiffs then stipulated to a voluntary dismissal, with prejudice, of their individual claims. On appeal following the voluntary dismissal, the plaintiffs sought a reversal of the district court's order striking the class allegations. The Ninth Circuit held that the voluntary dismissal was an appealable final decision and vacated the district court's denial of class certification. The Supreme Court reversed, rejecting the plaintiffs' voluntary-dismissal tactic on the ground that the plaintiffs' appeal sought review of the inherently interlocutory" order striking the class allegations, not the review of final order dismissing the case. Here, unlike the inherently interlocutory nature of class-certification decisions discussed in Microsoft, the district court's dismissal in favor of arbitration does not raise a concern about piecemeal appeals" because the dismissal ended the litigation on the merits. And, unlike Microsoft and Keena, the instant dismissal was not voluntary, as the Court discussed in the preceding section. Griggs stated that he stands ready to litigate this case before this Court to a conclusion and will either litigate this matter now before this Court or will appeal when dismissed. Those statements of inaction do not amount to a voluntary-dismissal tactic or a consensual dismissal of Griggs's claims. The district court made clear over the course of a year and a half that it would take no action in this case. If Griggs took the court's dismissal without prejudice as an invitation simply to re-file, he would have obtained the same result. The district court's action ended the litigation on the merits, by sending all the issues to arbitration and leaving the district court nothing more to do than execute the judgment. Thus, its order was a final decision, and the Court have appellate jurisdiction. Dismissal for Failure to Prosecute Rule 41(b) authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a court order. After the district court granted Defendants' motion to compel arbitration and stayed the case, Griggs persistently refused to arbitrate as ordered. Specifically, a status report submitted three months after the arbitration order stated: Plaintiff has not submitted the case to arbitration. More than a year after that, another status report explained that plaintiff has not submitted the dispute to arbitration. When the district court ordered Griggs to show cause why the case should not be dismissed for want of prosecution" he responded that he disagreed with this Court's conclusion that this matter must go to arbitration, would] not pursue arbitration, and stood ready to litigate this case before this Court to a conclusion. The district court was well within its discretion to dismiss this case for want of prosecution in response to Griggs's disobedience to its prior order. A full-text copy of the Fifth Circuit's September 27, 2018 Opinion is available at https://tinyurl.com/y72ejoz7 from Leagle.com. Scott M. Clearman, for Plaintiff-Appellant. Allyson Newton Ho, for Defendant-Appellee. Andrew Patrick LeGrand -- alegrand@gibsondunn.com -- for Defendant-Appellee. Bradley G. Hubbard -- bhubbard@gibsondunn.com -- for Defendant-Appellee. Kathryn Cherry, for Defendant-Appellee. SENIOR HEALTH: Settlement in Caballero Suit Has Prelim Approval --------------------------------------------------------------- In the cases, OLGA CABALLERO, JIE DU, by her friend MICHAEL TONG, ALEXANDRA NEGRON, MARIANO VAZQUEZ, by his next friend IRAIDA VASQUEZ; and JUAN SANTOS, by his next friend RITA BAEZ, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. SENIOR HEALTH PARTNERS, INC.; HEALTHFIRST, INC.; HF MANAGEMENT SERVICES, LLC; HEALTHFIRST HEALTH PLAN, INC.; XYZ CORPORATIONS 1-10; and HOWARD ZUCKER, as Commissioner of the New York State Department of Health, Defendants. MADELINE BUCCERI, PATRICIA TRUJILLO, And LOURDES LO, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. HOWARD ZUCKER, as Commissioner of the New York State Department of Health; HF MANAGEMENT SERVICES, LLC; SENIOR HEALTH PARTNERS, INC.; HF ADMINISTRATIVE SERVICES, INC.; HEALTHFIRST, INC.; HEALTHFIRST HEALTH PLAN, INC., Defendants, Case Nos. 16 CV 0326 (CLP), 18 CV 2380 (CLP) (E.D. N.Y.), Magistrate Judge Cheryl L. Pollak of the U.S. District Court for the Eastern District of New York (1) provisionally certified the Rule 23 Class for purposes of settlement; (2) granted preliminary approval of the proposed settlement, as articulated in the Settlement Agreement; (3) appointed the Named Plaintiffs as representatives of the Class; (4) appointed the New York Legal Assistance Group, The Legal Aid Society, Winston & Strawn LLP, and Paul, Weiss, Rifkind, Wharton & Garrison LLP as the Class Counsel; and (5) approved the proposed Notice of Class Action Settlement and the proposed method of distribution. On Jan. 21, 2016, the Caballero Plaintiffs, commenced the class action, individually and on behalf of all others similarly situated, against the Ddefendants, alleging violations of the Medicaid Act, the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, the U.S. Constitution, and New York State laws. The Plaintiffs, recipients of Medicaid-funded home care services through two Managed Long Term Care ("MLTC") health plans -- Senior Health Partners or Healthfirst Complete Care -- claimed that the Healthfirst Defendants unlawfully 1) reduced or threatened to reduce the Caballero Plaintiffs' home healthcare services; 2) denied or refused to consider increases in the Caballero Plaintiffs' home healthcare services; and 3) failed to provide timely and adequate notice to the Caballero Plaintiffs about the reduction or denial of services. On April 1, 2016, the Caballero Plaintiffs filed a First Amended Class Action Complaint, adding as Plaintiffs Mariano Vazquez, by his next friend Iraida Vasquez, and Juan Santos, by his next friend Rita Baez. On Oct. 24, 2016, the Bucceri Plaintiffs, on behalf of themselves and all others similarly situated, commenced a class action in the Southern District of New York against Defendants Howard Zucker, in his official capacity as Commissioner of the New York State Department of Health, HF Management Services, LLC, Senior Health Partners, Inc., HF Administrative Services, Inc., Healthfirst, Inc. and Healthfirst Health Plan, Inc., also raising claims on behalf of current and future Medicaid recipients who receive or will receive Medicaid-funded home care services from two Healthfirst MLTC plans, Senior Health Partners, Inc. and CompleteCare. The Bucceri Plaintiffs allege that they have asked for an increase in their home care services and rather than timely recording, assessing, and determining these requests, defendants ignored or used flawed systems of assessment, systematically denying or reducing their needed service. Following the filing of the Amended Complaint in the Caballero action, the parties engaged in extensive settlement negotiations under the supervision of the Court. At the direction of the Hon. Vernon S. Broderick, U.S. District Judge for the Southern District of New York, the Bucceri Plaintiffs joined in the settlement negotiations before the undersigned. Ultimately, the parties were able to reach a settlement and successfully integrated the Bucceri claims into the settlement agreement as well. On April 20, 2018, the Bucceri Plaintiffs moved to transfer the Bucceri action from the Southern District of New York to the Court, and on April 23, 2018, Judge Broderick ordered the case transferred to the Eastern District of New York. On July 10, 2018, the Caballero Plaintiffs consented to have the case assigned to the undersigned for all purposes; the Bucceri Plaintiffs also consented to the undersigned's jurisdiction on the same day. On July 19, 2018, the parties in both actions sought to consolidate the cases with an eye to consummating the settlement reached among all parties. The consolidated settlement seeks to certify a class consisting of all current and future Medicaid recipients who receive Home Care Services through Healthfirst Defendants. Currently pending before the Court is the Plaintiffs' unopposed motion seeking an Order: 1) preliminarily certifying the Class for purposes of settlement; 2) appointing the proposed Class representatives; 3) approving the Class counsel; 4) preliminarily approving the terms of the Settlement; 5) approving the form of Notice to the Class; and 6) scheduling a Fairness Hearing. Given that consolidation of the cases did not occur until after the motion was filed, the Bucceri Plaintiffs filed a letter on Aug. 13, 2018 confirming that they are in agreement with the contents of the motion and support the motion as filed. Magistrate Judge Pollak (1) provisionally certified the Rule 23 Class for purposes of settlement; (2) granted preliminary approval of the proposed settlement, as articulated in the Settlement Agreement; (3) appointed the Named Plaintiffs as representatives of the Class; (4) appointed the New York Legal Assistance Group, The Legal Aid Society, Winston & Strawn LLP, and Paul, Weiss, Rifkind, Wharton & Garrison LLP as the Class Counsel; and (5) approved the proposed Notice of Class Action Settlement and the proposed method of distribution. The Magistrate finds that (i) the Plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(2); and (ii) the terms of the proposed settlement for the Rule 23 Class to be fair and reasonable under the circumstances present in the case. The Fairness Hearing is scheduled for Nov. 29, 2018 at 11:00 am. Any Class Member will have the right to appear and be heard at the Fairness Hearing or to submit a written objection to the Court within 14 days before the Fairness Hearing, pursuant to the terms of the Class Notice and Settlement Stipulation. The Clerk is directed to send copies of the Order to the parties either electronically through the Electronic Case Filing system or by mail. A full-text copy of the Court's Sept. 4, 2018 Memorandum and Order is available at https://is.gd/67OyPb from Leagle.com. Madeline Bucceri, on behalf of herself and all others similarly situated, Patricia Trujillo, on behalf of herself and all others similarly situated & Betty Francisco, on behalf of LOURDES LO, individually and on behalf of others similarly situated, Plaintiffs, represented by Belkys Raquel Garcia, The Legal Aid Society, Jeffrey L. Kessler -- jkessler@winston.com -- Winston & Strawn LLP, Angela A. Smedley -- asmedley@winston.com -- Winston & Strawn LLP, Jeffrey Amato -- jamato@winston.com -- Winston & Strawn LLP, Jill K. Freedman -- jfreedman@winston.com -- Winston & Strawn LLP, Judith A. Goldiner, Legal Aid Society, Kenneth R. Stephens, The Legal Aid Society Civil Appeals & Law Reform Unit, Civil Division & Rebecca Antar Novick, The Legal Aid Society. Commissioner Howard Zucker, in his official capacity as Commissioner of the New York State Department of Health, Defendant, represented by Joshua Evan Keller, NYS Office of the Attorney General & Roderick Leopold Arz, Office of the Attorney Genral of New York. HF Management Services, LLC, Senior Health Partners, Inc., HF Administrative Services, Inc., Healthfirst, Inc. & Healthfirst Health Plan, Inc., Defendants, represented by Scott B. Klugman -- sklugman@levinelee.com -- Levine Lee LLP & Seth L. Levine -- slevine@levinelee.com -- Levine Lee LLP. SERVICE PROS: Ridenour Seeks Minimum & OT under FLSA ---------------------------------------------------- JASON RIDENOUR, individually, and on behalf of others similarly situated, the Plaintiff, vs. SERVICE PROS INSTALLATION GROUP, INC., the Defendant, Case 3:18-cv-00418 (E.D. Tenn., Sept. 29, 2018), seeks unpaid minimum wages and overtime compensation, liquidated damages, declaratory relief, and attorneys' fees and costs pursuant to the Fair Labor Standards Act. According to the complaint, the Defendant violated the FLSA minimum wage requirement by misclassifying Plaintiff and other Measurement Technicians as independent contractors and paying them weekly net compensation (i.e. gross pay minus expenses) that averaged out to less than $7.25 per hour in many weeks. The Defendant violated the FLSA overtime requirement by paying Plaintiff and the other misclassified Measurement Technicians a piece rate for each successful appointment without paying any additional premium pay for hours worked in excess of 40 hours in a workweek. As a result, there were many weeks in which Defendant's misclassification of Measurement Technicians as independent contractors resulted in them being deprived of minimum wages and overtime compensation of 1.5 of their regular rate of pay for all hours worked in excess of 40 in a workweek, in violation of the FLSA, the Case Says.[BN] Counsel for Plaintiff: Gregory F. Coleman, Esq. Lisa A. White, Esq. Mark E. Silvey, Esq. Adam A. Edwards, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com lisa@gregcolemanlaw.com mark@gregcolemanlaw.com adam@gregcolemanlaw.com - and - Nicholas Conlon, Esq. Jason T. Brown, Esq. JTB LAW GROUP, LLC 155 2nd St., Suite 4 Jersey City, NJ 07302 Telephone: (877) 561 0000 Facsimile: (855) 582 5297 E-mail: nicholasconlon@jtblawgroup.com jtb@jtblawgroup.com SHERRY-NETHERLAND INC: Bishop Files Class Action Under ADA ---------------------------------------------------------- A class action lawsuit has been filed against The Sherry-Netherland, Inc. The case is styled as Cedric Bishop on behalf of himself and all others similarly situated, Plaintiff v. The Sherry-Netherland, Inc., Defendant, Case No. 1:18-cv-09206 (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. The Sherry-Netherland, Inc. operates as a hotel. The Hotel offers guestrooms and suites, indoor function space, rooftop pool, all day dining restaurant, fitness center, in-room dining, and other services. The Sherry-Netherland serves individuals, groups, corporates, investment partners, and owners in the State of New York.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal SINCLAIR BROADCAST: Singh Balks at Tribune Media Merger Deal ------------------------------------------------------------ HARTEH SINGH 3108 Schubert Drive Silver Spring, Montgomery County, Maryland, 20904, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. SINCLAIR BROADCAST GROUP, INC., Christopher S. Ripley and Lucy A. Rutishauser, 10706 Beaver Dam Road, Hunt Valley, Baltimore County, Md 21030, the Defendants, Case No. 1:18-cv-02967-CCB (D. Md. Sept. 26. 2018), seeks to recover damages caused by the Defendants' violation of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, Sinclair announced a proposed $3.9 billion merger with Tribune Meida Co., which the Company called the "largest acquisition in the Company's history. The Defendant made materially false and misleading statements assuring investors and the U.S. Federal Communications Commission that it was using its "best efforts" to obtain regulatory approval and close the deal and that the Company would sell or divest certain stations as necessary "in order to comply with FCC ownership requirements and antitrust regulations." The Defendants engaged in a fraudulent scheme to deceive the FCC and the investing public by creating "sham" transactions with buyers intertwined with the Company and its controlling shareholders, the Smith Brothers, in an effort to misleadingly convince regulators that Sinclair's proposed merger was in compliance with FCC ownership regulations, the Court says. Sinclair, headquartered in Hunt Valley, Maryland, is the largest television station operator in the United States by both number of stations and total coverage.[BN] Attorneys for Plaintiff: Daniel S. Sommers, Esq. Steven J. Toll, Esq. S. Douglas Bunch, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue NW, Suite 500, East Tower Washington, DC 20005 Telephone: (202) 408 4600 Facsimile: (202) 408 4699 E-mail: stoll@cohenmilstein.com dsommerscohenmilstein.com dbunchohenmilstein.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Patrick V. Dahlstrom, Esq. 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661 1100 Facsimile: (212) 661 8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSSTEIN, GEWIRTZ, & GROSSMAM, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697 6484 Facsimile: (212) 697 7296 E-mail: peretz@bgandg.com SIRIUS XM: Objects to Provisions of Music Modernization Act ----------------------------------------------------------- Ed Christman, writing for Billboard, reports that the music industry powers that be must be confident that they have the votes they need because sources tell Billboard that the Music Modernization Act is planned to be hotlined in the Senate tomorrow afternoon. Hotlining is a process implemented when the leaders feel that there is the potential for legislation to be passed unanimously by verbal vote. Hotlined bills are generally noncontroversial, technical bills that rarely makes the mainstream newspapers that cover politics. However, if one Senator doesn't vote yes, then the legislation could be stalled and would then have to go to the floor for debate; and where other things could happen to waylay the legislation including amendments and possibly packaging it with another unpopular piece of legislation that could kill the music industry's chances of getting any copyright revisions at all. While the opening of the hotlined process means that the Senators are notified that the legislation will be fast-tracked, they have 24 hours to object and if none do then the billl is considered ready for unanimous consent consideration before the full Senate, according to a memo supplied to Billboard. If a Senate office objects, then the leadership tries to ascertain the reason for the objection and if it can be worked out, the hotline process can start again. If the objection can't be rectified, chances are the bill will not be added to the docket for debate and likely wouldn't come up for vote by the end of this term, i.e. year-end. In January, a new Congressional session will begin, which means that all pending legislation will have to start the process all over again. On Sept. 14, the latest version of the legislation was e-mailed to all 100 Senators with the information that the Senate would consider the bill for hot-lining on Sept. 17. The fact that it will be hotlined means that the Senate has figured out a way to pay for the costs of the legislation. When last heard about, the legislation was expected to create $175 million in new taxes, but cost $223 million to oversee regulation of the bill -- which would require digital and satellite services to pay performance royalties to master rights owners and artists; create a blanket mechanical license and a collective to administer it; and codify payments to producers by Sound Exchange -- which meant it had a $48 million shortfall. But the legislation appears to be somehow appropriating some funds from legislation regarding advanced nuclear power facilities. Meanwhile, as it stands, none of the amendments offered by Sirius XM, the main music industry service still protesting the otherwise consensus legislation, appears to have made it to the final version of the bill being considered tomorrow. Sirius XM objected that the legislation makes them legally responsible to pay for pre-1972 recordings the same as copyright law has for years made it pay for post-1972 recordings. In 2012, Sirius stopped paying for pre-1972 recordings and it took a class action lawsuit by the Turtles, which resulted in two settlements -- one with the class action and the other with the major labels -- for Sirius to pay royalties on those recordings. Both settlements have a going forward licensing provision, but once those respective licensing periods end, there is no guarantee that Sirius would continue paying, other than its word. So Sirius has complained that the legislation gives an advantage to its main competitor, terrestrial radio, which doesn't have to pay performance royalties for master recordings, let alone just the pre-1972 recordings, while the legislation legally adds that Sirius has to pay for pre-1972 recordings, in addition to post-1972 recordings as determined by the Digital Millennium Copyright Act of 1998. Also, Sirius objected that the legislation also eliminates a carve-out granted to it in the DMCA, which allowed special status to pre-existing services -- which apply to three services, Sirius, Music Choice, and CMX -- called the 801-B standard, that would allow rate courts to take into consideration how royalty rates would effect the services, such as, in the case of Sirius, the expense of running a satellite system. The MMA eliminates that that carve-out. Additionally, the MMA eliminates another limitation on rate setting in that previously rate courts couldn't take into consideration any royalties being paid to master recording rights holder when setting publishing rates. So now when Sirius rates are being set, the Copyright Royalty Board can consider royalty rates paid to record labels in setting publishing royalty rates for most services, including Sirius. However, the MMA gives terrestrial radio a carve-out so that the legislation eliminating that carve-out doesn't apply to analog transmission, i.e. terrestrial radio. Since the Music Choice cable network was also objecting to the elimination of the 801-B standard, the new version of the legislation gives Music Choice a grace period until 2028, in that the law says that when the current period ends on Dec. 31, 2022, the rates paid by pre-existing subscription services -- the only one being Music Choice as Sirius is considered pre-existing satellite service -- will stay the same through the next five-year period ending Dec. 31, 2027, with no need to go before the CRB. So while the MMA takes away Sirius XM's carve-out, it gives carve-out concessions to both terrestrial radio and Music Choice, another reason why Sirius has objected to the bill. Finally, Sirius wanted the legislation to say specifically that the money it pays as part of its settlement be split evenly 50/50 between the labels and the artists and musicians. As it is, those payments deduct the legal cost of fighting Sirius over the pre-1972 recordings. However, this Sirius ask doesn't appear to have made its way into the final version. In addition to making changes aimed at apparently pleasing terrestrial radio and Music Choice, the legislation also has made changes to accommodate Harry Fox Agency/SESAC/Blackstone, as well as Senator Wyden and Sen. Cruz. Since the Senate is proceeding to implement hot-lining on the MMA tomorrow, without any changes to accommodate Sirius, the industry must think it has every Senators vote. Because if any of Sirius XM's objections resonates with even one Senator, that could derail the legislation this year, and send the industry back to the drawing board. Industry players with a stake in the proposed legislation couldn't be reached for comment on Sept. 16. [GN] SOC LLC: Court Grants Bid to Clarify Risinger Class Definition -------------------------------------------------------------- In the case, KARL E. RISINGER, Plaintiff, v. SOC LLC, et al., Defendants, Case No. 2:12-cv-00063-MMD-PAL (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada (i) granted the Plaintiff's Motion for Clarification Regarding Class Definition, (ii) denied as moot the Defendants' Motion to Strike Expert Testimony of William Buckley Regarding Asserted Damages for Persons Outside the Class ("First Motion to Strike"), and (iii) granted in part and denied in part the Defendants' Motion to Strike Expert Testimony of William Buckley under Daubert and Fed. R. Evid. 702 ("Second Motion to Strike"). The case is a class action involving a dispute over the terms of employment for armed guards hired to work in Iraq. The Court certified a class consisting of armed guards who worked for SOC in Iraq between 2006 and 2012. In his Motion for Clarification, the Plaintiff seeks an order clarifying that "armed guards" encompasses the individuals Plaintiff refers to as "Reclassified Guards." Reclassified Guards held job titles other than "Guard" during their employment with the Defendants because the Defendants changed their job title and/or salaries upon, or shortly after, their arrival in Iraq. Nevertheless, the Plaintiff argues, these individuals are "armed guards" within the meaning of the Class definition because they were recruited as armed guards, received the same representations as the other Class members, were hired as armed guards, signed the standardized armed contracts, performed armed guard duties and had the same 72-hour work restriction under the TWISS-II contract. The Defendants have not persuaded Judge Du that the Plaintiff's request is untimely. Their characterization of the Plaintiff's request as untimely is pegged to the Plaintiff's agreement "months ago" to the class list. However, the Plaintiff's agreement was apparently based on a misunderstanding between the counsel. Consequently, the Plaintiff's agreement cannot serve as the point at which some time limit for seeking clarification began to run. Accordingly, she will grant the Plaintiff's Motion for Clarification. The Plaintiff seeks to introduce the expert testimony of William Buckley at trial regarding the class' damages. In their First Motion to Strike, the Defendants seek to strike the portions of Mr. Buckley's report that opine on liability and damages regarding the Reclassified Guards. The Judge will deny the Defendants' motion as moot in light of the Court's ruling that the class includes the Reclassified Guards. Mr. Buckley's testimony is based on the results of a survey that he and class counsel sent to 935 individuals on a class list provided by the Defendants (that does not include the Reclassified Guards). Mr. Buckley and the class counsel received about 159 responses. In their Second Motion to Strike, the Defendants seek to strike the entirety of William Buckley's expert report for failure to comply with the requirements of Fed. R. Evid. 702. They argue that Mr. Buckley's report should be stricken because it is not the product of a qualified expert in survey design and statistical analysis; it relies on insufficient data because the surveys introduce egregious bias and ambiguity; and it does not comport with statistical principles. The Judge agrees with the Plaintiff that Mr. Buckley's experience shows he has strong quantitative skills. While the Defendants contend that Mr. Buckley is unable to explain core statistical concepts such as what makes a sample representative or biased, these are issues to explore on cross-examination. These purported insufficiencies bear on the weight of Mr. Buckley's testimony rather than its admissibility. The Defendants have also not persuaded the Judge that the survey data is inadmissible for any of their cited reasons. The Judge will limit Mr. Buckley's testimony to that involving the damages incurred by the 159 individuals who responded and not impute their responses to the entire Class, though the limitation is without prejudice to reargument at trial. Judge Du notes that the parties made several arguments and cited to several cases not discussed. She has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the parties' motions. She therefore granted the Plaintiff's motion for clarification consistent with the Order. The parties are instructed to include the Reclassified Guards on the class list and give the Reclassified Guards notice of the action. The Judge granted the Plaintiff's motion to seal. She denied as moot the Defendant's first motion to strike, and granted in part and denied in part, without prejudice the Defendant's second motion to strike to reargument at trial. Mr. Buckley may testify about responses to the survey but will not be permitted to impute those responses to the entire class. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/awPYpK from Leagle.com. Karl E. Risinger, Plaintiff, represented by Andrew hale Steinberg , Early Sullivan Wright Gizer & McRae LLP, pro hac vice, Christopher I. Ritter -- critter@earlysullivan.com -- Early Sullivan Wright Gizer & McRae -- dmcrae@earlysullivan.com -- LLP, Devin A. McRae, Early Sullivan Wright Gizer & McRae LLP, Erik C. Alberts -- erik.alberts@ea-lawfirm.com -- Law Offices of Erik C. Alberts & Scott E. Gizer -- sgizer@earlysullivan.com -- Early Sullivan Wright Gizer & McRae LLP. SOC LLC, doing business as SOC Nevada LLC, SOC-SMG, Inc. & Day & Zimmerman, Inc., Defendants, represented by Daniel P. Mach -- danielmach@quinnemanuel.com -- Quinn Emanuel, Keith H. Forst -- keithforst@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice, Kristen L. Martini -- kmartini@lrrc.com -- Lewis Roca Rothgerber Christie LLP, Tara Melissa Lee -- taralee@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & E. Leif Reid -- lreid@lrrc.com -- Lewis Roca Rothgerber LLP. SOLAR TINT: Shulman Seeks Overtime Pay under FLSA ------------------------------------------------- BORIS SHULMAN, the Plaintiff, v. SOLAR TINT, INC., the Defendant, Case 1:18-cv-23972-JEM (S.D. Fla., Sept. 26, 2018), seeks payment from the Defendant of compensation at one-half of regular rate of pay for the hours worked over 40 in a work week, liquidated damages, reasonable attorneys' fees and costs of suit, and for all other appropriate relief under the Fair Labor Standards Act. According to the complaint, the Plaintiff was hired by Defendant in Miami, Florida. The similarly situated individuals who may become Plaintiffs in this action are Defendant's non-exempt employees who have worked in excess of 40 during one or more work weeks within the last three years and did not receive overtime pay for all hours worked over 40 in one or more work weeks. The Defendant hired the Plaintiff as an employee approximately 21 years ago. The Plaintiff does not recall the precise date that he began working for Defendant. The Defendant also employed 5 other full-time technicians at its business, all of whom performed job duties that were substantially similar to the Plaintiff's job duties. The Plaintiff worked for the Defendant continuously until approximately April 18, 2018. While working for the Defendant, the Plaintiff and the Class performed non-exempt duties as window tint technicians. The Plaintiff's primary job function was to install 3M window tint on automobiles, commercial buildings, private residences, and boats, the Case says. The Defendant offers tinting for car, home, and business windows.[BN] Attorneys for Plaintiff: J. Dennis Card, Jr., Esq. Darren R. Newhart, Esq. CONSUMER LAW ORGANIZATION, P.A. 721 US Highway 1, Suite 201 North Palm Beach, FL 33408 Telephone: (561) 822-3446 Facsimile: (305) 574-0132 E-mail: dennis@cloorg.com darren@cloorg.com ST. THOMAS AQUINAS COLLEGE: Violates ADA, Bishop Suit Says ---------------------------------------------------------- A class action lawsuit has been filed against St. Thomas Aquinas College. The case is styled as Cedric Bishop on behalf of himself and all others similarly situated, Plaintiff v St. Thomas Aquinas College, Defendant, Case No. 1:18-cv-09207 (S.D. N.Y., Oct. 8, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. St. Thomas Aquinas College or sometimes known as STAC is a private four-year liberal arts college in Rockland County, New York. At 125 Route 340 in Sparkill, New York, the college is named after the medieval philosopher and theologian Thomas Aquinas. It was founded by the Dominican Sisters of Sparkill.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal STARBUCKS CORP: Removes Amster Case to C.D. California ------------------------------------------------------ Starbucks Corporation removed case captioned SHAYNA AMSTER, an individual, on behalf of herself and on behalf of all persons similarly situated, v. STARBUCKS CORPORATION; and Does 1 through 50, Inclusive, Defendant, from the Superior Court of the State of California, County of Los Angeles, to the United States District Court for the Central District of California on Sept. 26, 2018. The California Central District Court Clerk assigned Case No. 2:18-cv-08327 to the proceeding. The Plaintiff alleged that Defendant "failed and continues to fail to accurately calculate and pay Plaintiff and the other members of the California Class for their overtime worked and meal premiums." Starbucks Corporation is an American coffee company and coffeehouse chain. Starbucks was founded in Seattle, Washington in 1971. As of 2018, the company operates 28,218 locations worldwide.[BN] Attorneys for Defendant: Keith A. Jacoby, Esq. Judy M. IriyeE, Esq. Rachael Lavi, Esq. Tina SundarR, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Telephone: (310) 553-0308 Facsimile: (310) 553-5583 E-mail: kjacoby@littler.com jiriye@littler.com rlavi@littler.com tsundar@littler.com STATE FARM: $250MM Settlement May Spur More Campaign Cash Suits --------------------------------------------------------------- Diana Novak Jones, writing for Law360, reported that the eye-popping $250 million that State Farm will pay to settle claims it rigged an Illinois judicial election to overturn a $1 billion class action verdict likely will spur copycat suits. [GN] SUN LIFE: Sued for Misrepresenting Life Insurance Policies ---------------------------------------------------------- Jesse McLean, writing for Toronto Star, reported that a few years after Sun Life took over MetLife's Canadian life insurance policies, the two companies were in court. Sun Life said it had unequivocal evidence that MetLife's agents misrepresented to Canadian consumers how the cost of their insurance could rise over the life of the policy. Sun Life, who now administers these policies, wanted MetLife to be on the hook for any legal claims by consumers who said they were paying more for their insurance than had been promised. While the court battle was unfolding, Sun Life continued to administer the plans, charging increasing premiums to hundreds of thousands of Canadians while "deceitfully" concealing "its knowledge that systematic sales misrepresentations had occurred," according to allegations filed in a long-running lawsuit brought by angry customers against Sun Life. Those customers scored a significant win after the Ontario Court of Appeal certified a class action against Sun Life alleging the insurance company breached its contracts when calculating fee increases on the policies. The allegations concern more than 230,000 life insurance policies sold to Canadians between 1985 and 1998. The lawsuit is seeking $2.5 billion. The Sept. 5 ruling overturned a lower court decision, and potentially brings to an end eight years of litigation over whether the case should move ahead. Sun Life did not say whether it plans to appeal the ruling, saying only that it's reviewing the appellate court's decision. "We care deeply about our clients, working to help them achieve lifetime financial security and live healthier lives," a Sun Life spokesperson said. The disputed policies were last sold in 1998, yet many Canadians continue to pay premiums to keep their coverage. The MetLife sales reps often used illustrations to explain the complex "universal" policies: A customer's premiums would go into an "accumulation fund," from which the insurance company would take its cut for the cost of insurance and administering the policies. The leftover money in the fund could accrue interest and eventually those earnings could cover some or all of the customer's premiums. The policies were marketed at a time of high interest rates. But when rates began to plummet in the late 1990s, the income from the customers' accumulation funds fell -- as did the insurance company's profits, prompting premiums and administration costs to go up, according to the recent ruling. Had customers not been misled as to how the plans worked, they could have purchased different insurance policies, according to the customers' allegations in court filings. Instead, with the low interest rates and increased cost of insurance, customers who had been paying into the policies for decades say they are struggling to make payments on policies they say are more expensive than was advertised. "As policies become financially unsustainable and go into default and lapse, policyholders will suffer loss of the money they invested over the years, and Sun Life and its shareholders . . . will reap windfalls from never having to pay the policy death benefits," the policyholders' lawyers said in a factum filed with the Court of Appeal. In 1998, MetLife sold its Canadian business to Mutual Life, which a few years and a name change later, merged with Sun Life. Sun Life was soon receiving a deluge of complaints by customers who said the cost of their insurance was increasing despite what MetLife sales agents had told them. Sun Life sued MetLife in 2006 over an indemnification provision in the sales agreement, arguing that MetLife should be responsible for covering the costs of consumers' claims. "The evidence filed by Sun Life . . . established unequivocally that MetLife, through its sales agents and employees, engaged in and condoned a pattern and repeated practice of misrepresenting and failing to accurately describe" the policies it sold to customers, Sun Life claimed in a court filing. Sun Life lost the case after the judge made a summary judgment that the company had not proved the legal claims it faced surpassed $1 million -- the threshold in the sale's agreement that would require MetLife to cover the claims. Sun Life appealed the decision but later withdrew its appeal on terms that have not been disclosed. MetLife said it would not comment on the allegations in the current class action lawsuit against Sun Life. For lawyers representing Sun Life customers, the evidence the insurance company had submitted in its fight against MetLife was a smoking gun. "(MetLife) and its agents had used misrepresentation in selling the policies, and . . . Sun Life later deceitfully concealed from the existing policyholders its knowledge that systematic sales misrepresentation had occurred," the lawyers from Kim Spencer McPhee Barristers said in a factum filed at the Court of Appeal. Sun Life, however, says the statements it made in its lawsuit were a submission -- not an admission. "They were not evidence. They were not findings. They are proof of nothing in this litigation," the company's lawyers said in a factum. Sun Life's factum said the company took "proactive steps" to offer a remedy to "individual policyholders who felt their policy had been sold to them based on a misrepresentation." Lawyers for the policyholders filed the proposed class action against Sun Life in 2010. After years of litigation, the lawsuit was put on life support after an Ontario Superior Court judge dismissed the plaintiffs' motion to have the class action certified. In its Sept. 5 ruling overturning that dismissal, the Ontario Court of Appeal found the earlier judge had overstepped his role, which was to assess whether there was enough evidence for the case to go to a trial, not to determine whether there was in fact a breach of contract. The plaintiffs argued that Sun Life had increased the rates customers paid for the cost of insurance and administrative fees based on factors not included in the signed policy. "There was some basis in fact to establish that the adjustment was calculated, for all policyholders, in a manner that was inconsistent with the express terms of the policy," the appeal court ruled. The appeal court also found the earlier judge was wrong in siding with Sun Life that claims of breach of contract were barred under the statute of limitations because customers ought to have noticed the alleged breach when their rates were increased over the years. "There is some basis in fact for the assertion that Sun Life concealed or misrepresented to affected policyholders the manner in which the (cost of insurance) was adjusted," the appeal court ruled. Eldon Fehr was a 20-year-old newlywed studying to become a minister in 1990 when he was sold the life insurance policy by a MetLife agent. In his understanding from the sales pitch, his payments would not change, making budgeting easy. Mr. Fehr said his annual costs of insurance have since increased on several occasions, and he said Sun Life never told him that the policies had been misrepresented, as the company alleged in its lawsuit against MetLife. "The deeper problem for me is a company that misrepresents a product and misleads people in what they're intending to do," Fehr, a reverend in Chilliwack, B.C. and the lead plaintiff in the class action lawsuit, said in an interview. "They're so complex, these policies, that it's really hard for simple people like me to understand." While the Court of Appeal certified a class action based on alleged breach of contract, the ruling upheld the earlier judge's decision to dismiss the class action claim that policyholders were misled by sales agents because each customer's experience was unique. The appeal court said customers could pursue their own individual lawsuits claiming agents misrepresented how the policies worked. [GN] SUN TAN CITY: Sent Unsolicited SMS Ads to Goodman's Phone --------------------------------------------------------- Sarah Goodman, individually and on behalf of all others similarly situated, Plaintiff, vs. Sun Tan City, LLC, Defendant, Case No. 18-cv-81281, (S.D. Fla., September 20, 2018), seeks statutory and actual damages, reasonable attorneys' fees, costs, and expenses incurred in this action, including expert fees, prejudgment and post-judgment interest and other and further relief under the Telephone Consumer Protection Act. Defendant owns and operates a chain of tanning salons throughout the United States. Defendant offers its moisturizers, facial and sunless tanning lotions, tan extenders, and sun and sunless tanning services. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. Goodman did not give his consent to receive such messages, asserts the complaint. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com TD AMERITRADE: Judge Rules Class-Action Lawsuit Can Proceed ----------------------------------------------------------- Cezary Podkul, writing for The Wall Street Journal, reports that mom-and-pop investors who think their brokers are prioritizing high-frequency traders over them may soon have a chance to try to prove their case in court. A federal judge in Nebraska this month ruled a class-action lawsuit could proceed against TD Ameritrade Holding Corp., one of the nation's largest discount brokerages. In his ruling, the judge cited "serious and credible allegations of securities fraud" stemming from the company's order routing practices. The TD Ameritrade customers who brought the suit alleged the company, which provides investing and trading services for 11 million client accounts, prioritized its profits over their best interests. They claim it did so by accepting incentives from stock exchanges and large electronic trading firms to route customer orders to them without ensuring the customers would get the best prices available – an obligation that along with related factors is known as "best execution." A spokeswoman for TD Ameritrade said the company disagrees with the judge and will appeal his ruling. Judge Joseph Bataillon's ruling, delivered Sept. 14 in federal court in Omaha, Neb., marks the first time a court has allowed customers to pursue a class-action lawsuit on the grounds a retail brokerage breached its duty to provide best execution, according to the ruling and the plaintiffs' attorneys. The decision comes at a time of growing focus on how brokerages handle customer orders. In its Oct. 2017 blueprint for streamlining financial regulations, the U.S. Treasury Department said it is concerned payments to brokerages "may create misaligned incentives" for brokers and their customers. It urged the Securities and Exchange Commission to boost regulation of such payments and require more disclosure. In March, the SEC proposed a study that would impose temporary restrictions on stock exchanges' fee and rebate payments and measure the impact on order routing behavior and trade execution quality. On September 19, an SEC commissioner called on the agency to move ahead with the study and faulted it for not doing more to ensure transparency and fairness in the stock market. Meanwhile, the Financial Industry Regulatory Authority, which oversees brokerage firms, has sought more information about such practices. And in August 2017, Massachusetts' top securities regulator launched an investigation into the practice. In its latest quarterly report, TD Ameritrade said "certain regulatory authorities are conducting examinations and investigations regarding the routing of client orders." The firm collected $320 million from order-routing incentives in the 12 months ended Sept. 2017, according to a regulatory filing. There is no prohibition on brokerages accepting such incentives. Large electronic trading firms such as Citadel Securities, Virtu Financial and Two Sigma Securities often pay brokers, like TD Ameritrade, Charles Schwab Corp., and E*Trade Financial Corp. to send them their clients' trades for execution, an incentive known as payment for order flow. The New York Stock Exchange, Nasdaq Inc. and other exchanges provide their own incentives for order routing, known as rebates. Proponents of such payments say investors get a better deal when brokers route orders to high-speed traders for execution and that any payments brokerages receive can be used to lower transaction costs. "The execution cost is as low as it's ever been, in fact it's approaching zero," said Richard Repetto, an analyst at Sandler O'Neill + Partners, L.P. Still, accepting incentives for order flow has sparked a flurry of litigation in recent years. Charles Schwab and E*Trade are facing lawsuits seeking class-action status on similar grounds as the TD Ameritrade case. Spokespeople for the firms did't immediately provide comment. Amid controversy surrounding the practice, one large brokerage -- Fidelity Investments -- decided to stop accepting payments for its customers' order flow in 2015. A Fidelity spokesman said that by not accepting such payments, Fidelity can offer its customers the best available prices on trades. Critics have long argued that the incentives hurt retail and institutional investors by giving brokers a reason to send trades to venues that give them the most money, as opposed achieving what is best for the investor. "Are they routing orders in ways that give their customers the best prices, or make them the biggest profits?" said Tyler Gellasch, executive director of the Healthy Markets Association, which is critical of rebates. The legal action against TD Ameritrade has its roots in a June 2014 Congressional hearing when a senior TD Ameritrade executive said the firm almost always routed customer orders to markets that paid it the most money. Former Sen. Carl Levin (D., Mich.) said at the hearing he found that practice to be a "pretty incredible coincidence" and questioned whether the firm in fact provided best execution to its clients. TD Ameritrade said after the hearing that it takes its best execution duties "very seriously" and makes it the "top priority" when routing clients' orders. Some academic research has found incentives for order flow may complicate brokers' ability to obtain best executions for their clients. A 2013 study by finance professors at the University of Notre Dame and Indiana University found that TD Ameritrade and three of its competitors routed orders in a manner that seemed to maximize such payments, and that such behavior hurt their ability to obtain best execution for clients. The study, also cited by plaintiffs, concluded that brokers who seek to maximize incentive payments and customer best execution "cannot have it all."[GN] TELENAV INC: Court Approves Gergetz Class Settlement ---------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Plaintiff's Motion for Final Approval of Class Action Settlement in the case captioned NATHAN GERGETZ, Plaintiff, v. TELENAV, INC., Defendant. Case No. 16-cv-04261-BLF. (N.D. Cal.). Plaintiff Nathan Gergetz filed this action asserting violations of the Telephone Consumer Protection Act (TCPA), on behalf of himself and others who received unsolicited text messages from Defendant Telenav, Inc. In order to grant final approval of the class action settlement, the Court must determine that (a) the class meets the requirements for certification under Federal Rule of Civil Procedure 23, and (b) the settlement reached on behalf of the class is fair, reasonable, and adequate. The Class Meets the Requirements for Certification under Rule 23 A class action is maintainable only if it meets the four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable;(2) there are questions of law or fact common to the class;(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and(4) the representative parties will fairly and adequately protect the interests of the class. Turning first to the Rule 23(a) prerequisites, the Court has no difficulty in concluding that because the class contains approximately 200,000 individuals, and approximately 2,000 claims have been filed, joinder of all class members would be impracticable. The commonality requirement is met because the key issue in the case is the same for all class members whether the text messages generated by Telenav and the Scout App violated the TCPA. Gergetz's claims are typical of those of both subclasses, as he received text messages before and after sending STOP messages in response to texts. In Hanlon, 150 F.3d at 1020, typicality requires only that the claims of the class representatives are reasonably co-extensive with those of absent class members. Finally, to determine the Plaintiffs' adequacy, the Court "must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? With respect to Rule 23(b)(3), the predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. The common question in this case whether the text messages generated by Telenav and the Scout App violated the TCPA predominates. Given that commonality, and the number of class members, the Court concludes that a class action is a superior mechanism for adjudicating the claims at issue. The Court concludes that the requirements of Rule 23 are met and thus that certification of the class for settlement purposes is appropriate. The Settlement is Fundamentally Fair, Adequate, and Reasonable In making that determination, the district court is guided by an eight-factor test articulated by the Ninth Circuit in Hanlon v. Chrysler Corp Hanlon, 150 F.3d at 1026-27, (Hanlon factors). Those factors include: the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Notice was Adequate Gergetz provides declarations of counsel and the Administrator describing implementation of the notice plan. The Court has summarized the key portions of those declarations in section I, above. Based on those declarations, it appears that at least 79.1% of all class members received notice through direct postal mail, email, banner ads, and the Settlement Website. The Court is satisfied that the class members were provided with the best notice practicable under the circumstances, and that such notice was adequate. Presumption of Correctness Before discussing the Hanlon factors, the Court notes that a presumption of correctness is said to `attach to a class settlement reached in arm's-length negotiations between experienced capable counsel after meaningful discovery. The settlement in this case was the result of arms-length negotiations between experienced counsel with the aid of a respected mediator. While there was little formal discovery, Gergetz's counsel has submitted a declaration describing the pre-suit investigation and informal discovery which was conducted. The Court therefore concludes that on this record a presumption of correctness applies to the class action settlement. Hanlon Factors The settlement recovery is substantial for a TCPA case. In his motion papers, Gergetz estimated that each Award Unit would be worth approximately $900, and at the hearing his counsel revised that amount downward slightly to $810. Thus under the terms of the Agreement, each class member who submits a valid claim will receive at least $810, and some may receive as much as $4,860. Gergetz provides a chart listing the recoveries resulting from other TCPA settlements, which range between $20 and $200. Given those figures, the recovery obtained under this settlement is exceptionally good. Little formal discovery had been completed at the time of settlement, and the case is in its early stages. However, Gergetz's counsel conducted pre-suit investigation and informal discovery, and the case has been pending for two years. The Court is satisfied that the parties are sufficiently familiar with the issues in the case to have informed opinions regarding its strengths and weaknesses. Class Counsel specialize in litigation of consumer class actions, including TCPA cases, and Telenav is represented by a well-respected law firm. Their views that the settlement is a good one is entitled to significant weight. Based on these reasons, and after considering the record as a whole as guided by the Hanlon factors, the Court finds that notice of the proposed settlement was adequate, the settlement is not the result of collusion, and the settlement is fair, adequate and reasonable. A full-text copy of the District Court's September 27, 2018 Order is available at https://tinyurl.com/y82tnwja from Leagle.com. Nathan Gergetz, individually and on behalf of all others similarly situated, Plaintiff, represented by Patrick Harry Peluso -- ppeluso@woodrowpeluso.com -- Woodrow & Peluso, LLC, Richard Toshiyuki Drury -- richard@lozeaudrury.com -- Lozeau Drury LLP, Stefan Louis Coleman, Law Offices of Stefan Coleman, LLC, pro hac vice, Steven Lezell Woodrow -- swoodrow@woodrowpeluso.com -- Woodrow & Peluso, LLC & Rebecca Leah Davis -- rebecca@lozeaudrury.com -- Lozeau Drury LLP. TeleNav, Inc., a Delaware corporation, Defendant, represented by Tonia Ouellette Klausner -- tklausner@wsgr.com -- Wilson Sonsini Goodrich Rosati, pro hac vice & Kelly Marie Knoll -- kknoll@wsgr.com -- Wilson Sonsini Goodrich and Rosati. TELSTRA CORP: CEO Says Shareholder Class Action Likely Unsuccessful ------------------------------------------------------------------- Jennifer Duke, writing for Sydney Morning Herald, reports that Telstra chief executive Andy Penn has told shareholders a planned merger between rivals TPG Telecom and Vodafone Hutchison Australia is a "good thing" for the competitive mobile industry. Mr Penn, while fronting retail investors in Melbourne on Sept. 17 morning, said the creation of a $15 billion rival will help keep competition in the mobile space to a more "appropriate" level, with telcos already seeing prices falling and data inclusions rising as they fight for customers. TPG, which has a significant presence in selling fixed internet services, has long been planning to launch a fourth mobile network and had been advertising upcoming unlimited mobile phone plans for $9.99, which would have put a squeeze on existing telcos. Assuming the planned merger obtains regulatory approvals and a shareholder vote, Mr Penn described it as "generally speaking a good thing for the industry". "Telecommunications as an industry tends to run more efficiently when there's an appropriate number of competitors," he said. This number needed to be enough to force players to "compete hard" to provide results for customers, and innovation, but not "so many" as to leave the market inefficient. Industry experts have long speculated the Australian market cannot sustain more than three players. Mr Penn explained to investors the disruption brought about by the National Broadband Network roll out has had a knock-on effect to mobile, with providers competing more aggressively in this space to take market share to make up for the impact of the NBN Co. A disgruntled investor asked, to applause, whether shareholders could "take a class action against government or institutions" for disrupting the telco with the NBN. Mr Penn said a class action was "unlikely to be successful" as shareholders had voted in 2011 in favour of Telstra's participation in the roll out of the network. Telstra's earnings (before interest, tax, depreciation and amortisation) are impacted by $3 billion a year due to the NBN, with the government providing $11 billion as "compensation" over several years as part of the agreement. Telstra's share price last peaked at $6.61 in February 2015. The price increased 1.25 per cent to $3.23 by 3.43pm on Sept. 17. Mr Penn said some of the impacts on telecommunications were from the "global" change in consumer behaviour, with telcos failing to benefit from the increased demand for data and over-the-top players benefiting instead. "The telcos have not done as a good job as they would like certainly in terms of capturing the value," he said. "A crucial question remains is can we do a better job of this as an industry . . . as we move into [ultra-fast next generation mobile networks] 5G." He told investors he couldn't see "anybody ahead of us in the world in relation to 5G" with three major benefits of the future network over 4G, including increased capacity, speed and the ability to connect many more devices at once. "In a future world where you can connect sensors, trucks, cars on the road . . . we anticipate there will be billions of devices connected. It will be transformational in the changes it brings," he said. [GN] TESLA INC: Sodeifi Suit Transferred to N.D. California ------------------------------------------------------ SHAHRAM SODEIFI,Individually and on behalf of all others similarly situated, the Plaintiff, v. TESLA, INC., a Delaware corporation, and ELON R. MUSK, an individual, the Defendants, Case No. 2:18-cv-07575, was transferred from the U.S. District Court California Central District, to the U.S. District Court for the California Northern District (San Francisco). The California Northern District Court Clerk assigned Case No. 3:18-cv-05899-RS to the proceeding. The case is assigned to the Hon. Judge Richard Seeborg. The case is a federal securities class action on behalf of a class consisting of all persons, other than Defendants, who purchased or sold securities of Tesla between August 7, 2018 and August 10, 2018 and suffered financial damages as a result of Defendants' alleged statements and omissions. The Plaintiff seeks to recover compensable damages caused by Defednants' violation of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. Tesla, Inc. is an American automotive and energy company based in Palo Alto, California. The company specializes in electric car manufacturing and, through its SolarCity subsidiary, in solar panel manufacturing.[BN] Attorneys for Plaintiffs and the Proposed Class: Marc Y. Lazo, Esq. 2105 Foothill Blvd., Suite B121 La Verne, CA 91750 Telephone: (855) 471 1110 Facsimile: (855) 471 1110 E-mail: marclazo@cox.net Attorneys for Tesla Inc. and Elon R. Musk: Dean S. Kristy, Esq. Mara Ludmer, Esq. Jennifer C Bretan, Esq. FENWICK AND WEST LLP 555 California Street 12th Floor San Francisco, CA 94104 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 E-mail: dkristy@fenwick.com mludmer@fenwick.com jbretan@fenwick.com TICKETMASTER LLC: Vaccaro Sues over Multiple Ticket Commissions --------------------------------------------------------------- SALVATORE VACCARO, individually and on behalf of others similarly situated, the Plaintiff, v. TICKETMASTER, L.L.C., the Defendant, Case: No. 1:18-cv-06574 (N.D. Ill. Sept. 26, 2018), alleges that the Defendant violated the Illinois Consumer Fraud and Deceptive Business Practice Act and the Illinois Uniform Deceptive Trade Practices Act by reselling (on its secondary exchange) the same tickets that it sold initially to resellers (on its primary exchange), thereby collecting multiple commissions per ticket, and even apparently creates and distributes "doubledip bots" to resellers to allow them to purchase or repost these tickets automatically which ultimately artificially inflates the prices to consumers. According to the complaint, the Defendant violated Section 510/2 of the Illinois Uniform Deceptive Trade Practices Act by misrepresenting the amount of tickets Ticketmaster had sold on its primary ticket exchange. The misrepresentations about its quantity of tickets created a likelihood of confusion on the part of consumers regarding how many tickets are on the primary ticket exchange website. Ticketmaster L.L.C. was founded in 1997. The company's line of business includes operating sports, amusement, and recreation services.[BN] Attorneys for Plaintiff: Heather L. Blaise, Esq. BLAISE & NITSCHKE, P.C. 123 N. Wacker Drive, Suite 250 Chicago, IL 60606 Telephone: (312) 448 6602 Facsimile: (312) 803 1940 E-mail: hblaise@blaisenitschkelaw.com TIMBUK2 DESIGNS: Diaz Files ADA Suit in New York ------------------------------------------------ A class action lawsuit has been filed against Timbuk2 Designs, Inc. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. Timbuk2 Designs, Inc., Defendant, Case No. 1:18-cv-09249 (S.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Timbuk2 Designs, Inc. manufactures and sells made-to-order bags. It offers messenger bags, laptop bags, backpacks, Duffel bags and rollers, panniers, custom bags, women's bags, accessories, work bags, bike bags, travel bags, weekend bags, and gift cards. The company sells its products online, as well as through its stores in North America, Asia, and Europe. It also sells its products through authorized resellers. Timbuk2 Designs, Inc. was formerly known as Scumbags Inc. and changed its name to Timbuk2 Designs, Inc. in 1990. The company was founded in 1989 and is based in San Francisco, California with manufacturing locations in San Francisco, China, Indonesia, and Vietnam.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal TIME WARNER: Court Defers Ruling on Arbitration Bid in Landry Suit ------------------------------------------------------------------ The United States District Court for the District of New Hampshire granted in part and denied in part, albeit without prejudice, Time Warner's motion to compel arbitration and to dismiss or stay the action styled Ryan Landry, Plaintiff, v. Time Warner Cable, Inc., and Thomson Reuters Corporation, Defendants. Case No. 16-cv-507-SM. (D.N.H.). Plaintiff, Ryan Landry, filed this putative class action against his former employer, Time Warner Cable, alleging that Time Warner violated various provisions of the federal Fair Credit Reporting Act (FCRA), as well as New Hampshire's statutory analogue. He also claims Time Warner wrongfully terminated his employment and, in so doing, violated New Hampshire's Whistleblower Protection Act. The court will employ the familiar summary judgment standard of review in resolving Time Warner's motion to compel arbitration. Applying that standard, the court reviews the record in the light most favorable to Landry, and draws all reasonable inferences in his favor. The question presented in this case is whether the parties actually formed an enforceable contract that is, whether the Mutual Agreement to Arbitrate complies with New Hampshire's general principles governing contract formation and enforcement. Landry Executed the Mutual Arbitration Agreement First, although he does not deny that he accessed the onboarding website, reviewed Time Warner's various employment policies and procedures, and electronically signed the Mutual Arbitration Agreement, Landry says he cannot recall having done so. Nor does he recall having provided Time Warner with the Yahoo email address to which Time Warner sent Landry's login and password credentials. But, as Time Warner points out, Landry's lack of recall (and absence of any denial of the material facts at issue), is insufficient to call into question any properly supported facts presented by Time Warner. The records submitted by Time Warner plainly demonstrate that Landry did provide Time Warner with his Yahoo email address and he did complete the company's onboarding process with the login credentials that were sent to that email address in two separate communications. Additionally, those documents establish that Landry acknowledged reading the Mutual Agreement to Arbitrate and electronically signed that document. Those material facts are established and not genuinely disputed. Unconscionability Landry asserts that even if he did execute the Mutual Agreement to Arbitrate, it is unconscionable and, therefore, unenforceable. The parties agree that whether their arbitration agreement is enforceable against Landry must be determined under New Hampshire's law of contract formation. This court has previously address and resolved many of the arguments advanced by Landry. And, largely for the reasons discussed in Klinedinst, as well as those set forth in Time Warner's memoranda, the court concludes that Landry has failed to demonstrate that the Mutual Agreement to Arbitrate is unenforceable on grounds that it is either procedurally or substantively unconscionable. In brief, the arbitration agreement is not at least under the circumstances presented an unenforceable adhesion contract. Landry's claim that he did not face an actual choice' to reject an arbitration agreement without facing poverty, unemployment, and/or eventual destitution, describes a personally difficult choice, but hardly a legally unconscionable one. Nor was the arbitration agreement presented to Landry in an unfair or confusing manner. That document consists of less than two pages and it is written in plain, easy-to-understand language. And, despite the fact that Landry gave no indication that he wished to review the agreement with an attorney before executing it, Time Warner provided him with ample time to do so if he had wished. Copies of the rules of the arbitration process, as well as the location of the relevant arbitration resolution centers, were also made available to Landry through the onboarding website. Such clauses are not unenforceable on the grounds asserted by Landry that is, that the Arbitration Agreements is unreasonably favorable to TWC' because the class action waiver embedded in the mandatory Arbitration Agreement deprives employees of meaningful redress of their rights and solely benefits TWC. Restraints of Protected Activity Finally, Landry asserts that the Mutual Agreement to arbitrate is unenforceable because its class action waiver represents an unlawful restraint on his rights under the National Labor Relations Act. This argument seems to have the most substance. Landry asks the court to apply what has become known as the D.R. Horton Rule, which arises out of a decision issued by the National Labor Relations Board in which the Board concluded that: (1) class and collective actions are other concerted activities protected under Section 7 of the National Labor Relations Act; (2) agreements between employers and employees to arbitrate disputes on an individual, rather than a representative or class basis, constitute an unfair labor practice under Section 8 of the NLRA; and (3) the Federal Arbitration Act does not preclude the Board from declaring such agreements unenforceable. In Re D.R. Horton, Inc.,357 NLRB 2277 (2012). But, the Court of Appeals for the Fifth Circuit reversed that decision, concluding that the class action waiver at issue was not rendered unenforceable by the NLRA. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The Court of Appeals for the First Circuit has yet to address this issue and those courts of appeals that have are divided. But, on January 13, 2017, the United States Supreme Court granted certiorari to the Court of Appeals for the Fifth Circuit, to resolve that very issue, i.e., whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees' right under the National Labor Relations Act to engage in concerted activities in pursuit of their mutual aid or protection, 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2. Because the Supreme Court will likely resolve that dispositive question of law in the near future, it would seem unnecessary and unwise to proceed here. An authoritative and controlling description of the interplay between the NLRA and the FAA will be forthcoming shortly. Accordingly, pending the Supreme Court's decision in Murphy Oil, the court will defer ruling on that final question of law presented in Landry's objection to Time Warner's motion to compel arbitration. As well as those set forth in Time Warner's legal memoranda Time Warner's motion to compel arbitration is granted in part and denied in part. With the exception of his claim that the class action waiver violates provisions of the NLRA, none of Landry's arguments in favor of invalidating the Mutual Agreement to Arbitrate is persuasive. A full-text copy of the District Court's September 27, 2018 Order is available at https://tinyurl.com/y77c2ah4 from Leagle.com. Ryan Landry, Plaintiff, represented by Amy E. Tabor -- aet@caddellchapman.com -- Caddell & Chapman, pro hac vice, Michael A. Caddell -- mac@caddellchapman.com -- Caddell & Chapman, pro hac vice, Benjamin J. Wyatt, Wyatt Law Offices & Michael Varraso, Wyatt Law Offices. Thomson Reuters Corporation, Defendant, represented by Eric Bosset -- ebosset@cov.com -- Covington & Burling LLP, pro hac vice, Geoffrey J. Vitt -- gvitt@vittandassociates.com -- Vitt & Associates PLC & Neil K. Roman -- nroman@cov.com -- Covington & Burling LLP, pro hac vice. TRIBUNE MEDIA: Entwistle & Cappucci Files Securities Class Action ----------------------------------------------------------------- Entwistle & Cappucci LLP ("Entwistle & Cappucci") on Sept. 11 disclosed that it has filed a securities class action lawsuit on behalf of persons or entities who purchased common stock of Tribune Media Company (NYSE: TRCO) ("Tribune" or the "Company") during the period from November 29, 2017 through July 16, 2018, inclusive (the "Class Period"), and who were damaged thereby (the "Class"). The case was filed in the United States District Court for the Northern District of Illinois, Case No. 1:18-cv-06175, against Tribune and certain of its senior executives (collectively, "Defendants"). The class action asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The complaint alleges that, during the Class Period, the Defendants made materially false and misleading statements and omitted material adverse facts concerning the conduct of Sinclair Broadcast Group Inc. ("Sinclair") during the process of seeking regulatory approval necessary to complete a proposed merger between Tribune and Sinclair (the "Merger"). Specifically, the complaint alleges that while the Defendants frequently discussed the regulatory steps necessary to complete the Merger in public statements and presentations, including Sinclair's purported agreement to take certain actions to secure regulatory approval, the Defendants misstated or omitted the fact that: (i) Sinclair was refusing to divest itself of television stations in certain markets necessary in order to secure regulatory approval; and (ii) Sinclair was taking the position that it was not legally or contractually obligated to complete the identified divestitures to ensure regulatory approval. As a result of the Defendants' false and misleading statements and omissions, Tribune common stock traded at artificially inflated prices during the Class Period and such inflation was removed when it was revealed that the Merger had not received regulatory approval by the applicable deadline and would not close. The complaint seeks an award of damages, and prejudgment interest, to plaintiff and other Class members. If you wish to serve as a lead plaintiff in this matter, you must file a motion with the Court no later than November 13, 2018. Any member of the proposed Class may move the Court to serve as a lead plaintiff in this matter through counsel of their choice, or they may choose to do nothing and remain a member of the Class. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact: Andrew J. Entwistle, Esq. of Entwistle & Cappucci at (212) 894-7200 or via e-mail at aentwistle@entwistle-law.com; or Joshua K. Porter, Esq. of Entwistle & Cappucci at (212) 894-7200 or via e-mail at jporter@entwistle-law.com. About Entwistle & Cappucci Entwistle & Cappucci -- http://www.entwistle-law.com-- is a national law firm providing exceptional legal representation to clients globally in the most complex and challenging legal matters. Its practice encompasses all areas of litigation, including securities, antitrust, corporate transactions, general corporate and commercial, creditor's rights and bankruptcy, corporate governance and fiduciary duty, government affairs, insurance, investigations and white collar defense. Its clients include public and private corporations, major hedge funds, public pension funds, governmental entities, leading institutional investors, domestic and foreign financial services companies, emerging business enterprises and individual entrepreneurs. [GN] TRISTAR PRODUCTS: Court Denies Bid to Intervene in Chapman Suit --------------------------------------------------------------- In the case, KENNETH CHAPMAN, et al., Plaintiffs, v. TRISTAR PRODUCTS, INC., Defendant, Case No. 1:16-CV-1114, No. 1:17-CV-2298 (N.D. Phio), Judge James S. Gwin of the U.S. District Court for the Northern District of Ohio denied (i) the Arizona Movants' motion to intervene only to allow them to appeal the Court's order approving the parties' settlement; and (ii) their request to be deemed a formal objector to the settlement on the basis of their prior filings. In this products liability class action, the Attorney General of Arizona and the State of Arizona ("Arizona Movants") move to intervene under Federal Rule of Civil Procedure 24. The Arizona Movants played no role in this long-pending and bitterly contested litigation. The Arizona Movants seek intervention only to allow them to appeal the Court's order approving the parties' settlement. In the alternative, they request that the Court deems them a formal objector to the settlement on the basis of their prior filings. In 2016, the Plaintiffs sued Tristar alleging that certain of the Defendant's pressure cookers were defective. The Plaintiffs sought class certification. They alleged Tristar sold a home pressure cooker with a defect that allowed users to release the pressure cooker's lid even while the pressure cooker was still pressurized. They claimed this defect allowed heated food contents to potentially shoot out and injure the user. The Court certified several state classes but denied nationwide class certification. After extensive motion practice that partially ended some of the Plaintiffs' claims, the case went to trial. Near the end of the first trial day, and after the parties examined several witnesses, including the Plaintiffs' main expert witness, the parties met with Magistrate Judge Greenberg and renewed settlement discussions. After additional negotiations supervised by Judge Greenberg, the parties reached a settlement. Under the settlement, the class members can receive a $72.50 credit towards the purchase of one of three Tristar products. Additionally, the settlement gives class members a one-year warranty extension. To submit a claim, the class members must verify that they have watched (or read a transcript of) a safety video intended to teach users about the safe operation of the pressure cookers. The settlement agreement also allowed the class counsel to apply for attorney fees. Under the settlement agreement, the Plaintiff attorneys could not seek fees greater than the Class Counsel's lodestar and expenses. The Plaintiff attorney would not seek any success addition. In the settlement agreement, Tristar agreed that it would not object to the Plaintiff class counsel's fee application if the fee application was based upon a lodestar calculation and was less than an agreed amount. The settlement agreement acknowledged that the Court, not the parties, would determine what the class fees were recoverable. Despite widespread notice of settlement to the class members, no class members objected to the proposed settlement. The Department of Justice and eighteen state attorneys general filed an amici brief opposing the proposed settlement. Although styled as objecting to the settlement, the Arizona Movants more truly only objected to the attorney fee application. Restating, that settlement agreement limited the Plaintiff counsel to seeking no more than a lodestar fee and the settlement agreement recognized that the Court, not the parties, would determine any fee award. At the July 12, 2018, hearing, the U.S. Department of Justice and the Arizona attorney general's office argued against settlement approval. They argued that the proposed settlement disproportionately benefited class counsel and surmised that the class members would receive greater settlement benefits if class counsel received less. The Court approved the settlement and certified a nationwide class, finding that the settlement was fair, reasonable, and adequate. It also approved a reduced fee award of $1,980,382.59 in attorney's fees. Because the Arizona Movants do not allege an injury giving rise to Article III standing, Judge Gwin denied their motion to intervene of right. For the same reason, he also denied their request that the Court deems them a formal objector to the settlement. He holds that permitting the Movants to intervene for the purposes of appeal would significantly delay the distribution of relief to class members. For this reason, he declined their request to intervene as a matter of discretion. A full-text copy of the Court's Sept. 4, 2018 Opinion and Order is available at https://is.gd/X1ZasM from Leagle.com. Kenneth Chapman, Jessica Vennel & Jason Jackson, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Adam A. Edwards -- adam@gregcolemanlaw.com -- Law Office of Greg Coleman, Arthur M. Stock -- astock@bm.net -- Berger & Montague, Drew T. Legando, Landskroner Grieco Merriman, Edward A. Wallace, Wexler Wallace -- eaw@wexlerwallace.com -- pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Law Office of Greg Coleman, pro hac vice, Jack Landskroner, Landskroner Grieco Merriman, Lisa A. White -- lisa@gregcolemanlaw.com -- Law Office of Greg Coleman, Mark E. Silvey, Law Office of Greg Coleman, pro hac vice, Shanon J. Carson -- scarson@bm.net -- Berger & Montague & Tyler J. Story -- tjs@wexlerwallace.com -- Wexler Wallace. Edwina Pinon, individually and on behalf of all persons similarly situated (Plaintiff in Member Case 1:17-cv-02298), Plaintiff, represented by David B. Levin , Law Office of Todd M. Friedman, Gregory F. Coleman , Law Office of Greg Coleman, Jack Landskroner, Landskroner Grieco Merriman, Meghan E. George & Todd M. Friedman . Tristar Products, Inc., Defendant, represented by Roger A. Colaizzi -- racolaizzi@venable.com -- Venable, pro hac vice, Brian E. Roof, Esq. -- broof@sutter-law.com -- Sutter O'Connell, Brian Douglas Sullivan, Esq. -- bsullivan@reminger.com -- Reminger & Reminger, Hugh J. Bode, Esq. -- hbode@reminger.com -- Reminger & Reminger, John Q. Lewis, Esq. -- john.lewis@tuckerellis.com -- Tucker Ellis, Jonathan F. Feczko, Esq. -- jonathan.feczko@tuckerellis.com -- Tucker Ellis, Madeline Dennis, Esq. -- madeline.dennis@tuckerellis.com -- Tucker Ellis, Mark F. Ram, Cotchett Pitre & McCarthy, Matthew C. O'Connell -- moconnell@sutter-law.com -- Sutter O'Connell, Nathan F. Studeny, Esq. -- nstudeny@sutter-law.com -- Sutter O'Connell, Pamela M. Ferguson, Lewis Brisbois Bisgaard & Smith, Shawn A. Toliver -- Shawn.Toliver@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith & Zachary J. Adams -- zachary.adams@tuckerellis.com -- Tucker Ellis. Arizona Attorney General's Office & State of Arizona, Movants, represented by Barry H. Uhrman, Office of the Attorney General, Dana R. Vogel, Office of the Attorney General & Oramel H. Skinner, Office of the Attorney General. United States, Interested Party, represented by Alan J. Phelps , Civil Division - Consumer Protection Branch U.S. Department of Justice & Brenna E. Jenny, U.S. Department of Justice - Civil Rights Div Disability Rights Section. TWIN HILL ACQUISITION: Court Denies Bid to Dismiss Zurbriggen Suit ------------------------------------------------------------------ In the case, THOR ZURBRIGGEN, DENA CATAN, HALEY JOHNSON, LYNNETTE CHESTER, KIMBERLY JOHNSON, JOSEPH CATAN, BARBARA BELL, LAURA URQUHART, DOUG CRUMRINE, LUJUAN PRESTON, and TIMOTHY TERRY, on behalf of themselves and others similarly situated, Plaintiffs, v. TWIN HILL ACQUISTION COMPANY, INC. and AMERICAN AIRLINES, INC., Defendants, Case No. 17 C 5648 (N.D. Ill.), Judge John J. Tharp, Jr. of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted American's motion to dismiss but denied Twin Hill's motions to dismiss and strike. American Airlines, Inc. rolled out a new line of uniforms for its worldwide workforce in late 2016. The uniform change was American's first in almost 30 years and was the product of several years of planning and development. What it hoped would be a seamless transition was anything but. According to the amended complaint, the new uniforms created a plague of health problems for American's workforce; within weeks, employees across the company reported developing skin rashes, respiratory problems, vertigo, and other ailments. The number of complaints supposedly grew so large so quickly that American backpedaled on the rollout two months later and permitted employees to revert back to their old uniforms. Within a year, the airline announced that it would cut ties with the uniform manufacturer, Twin Hill. In the aftermath of the rollout, 11 American employees filed suit against their employer and Twin Hill on behalf of themselves and all other American employees who have been exposed to the uniforms. The Plaintiffs contend that both the Defendants are liable for battery and intentional infliction of emotional distress, and that Twin Hill also is liable in negligence and products liability. The Plaintiffs individually seek damages and on behalf of the class seek injunctive relief, including an order requiring Twin Hill to recall the uniforms it has provided to American employees and directing both companies to establish a medical monitoring fund to mitigate any possible long-term health effects to class members. American and Twin Hill responded to the amended complaint by moving to dismiss under Rule 12(b)(6). American argues that the Plaintiffs' claims against it are barred by state workers' compensation statutes, which provide the exclusive remedy for on-the-job injuries. Twin Hill contends that the Plaintiffs fail to state a plausible claim for relief against it largely because there is no basis to conclude its uniforms are the source of the harm alleged. Twin Hill further asks the Court to strike the class allegations in the complaint pursuant to Rule 12(f) and Rule 23 on the basis that the Plaintiffs will be unable to establish that their claims merit class treatment. Judge Tharp finds that the complaint plausibly alleges that the uniforms are unreasonably dangerous. And he agrees with the Plaintiffs that the allegations of the complaint, taken as true, provide a basis to conclude that American knew something was amiss with the uniforms even before September 2016. Nevertheless, where the complaint falls short in alleging an intentional tort is that it fails to give rise to the inference that American knew with requisite certainty that any particular employees, much less the named Plaintiffs, would be harmed by the Twin Hill uniforms. Because that the Plaintiffs' claims against American are precluded by the applicable exclusivity statutes, American's motion to dismiss is granted. Turning to Twin Hill's motion to dismiss, because he concludes that the Plaintiffs state a claim under a product liability theory, Twin Hill's Rule 12(b)(6) motion to dismiss the complaint must be denied. He concludes that each of the Plaintiffs has pleaded sufficient facts to maintain a design defect theory at this stage. There are a number of allegations in the complaint that plausibly suggest Twin Hill uniforms were defectively designed so as to render them unreasonably dangerous. At bottom, the complaint presents a plausible, factual-based story that Twin Hill uniforms are unreasonably dangerous in their design and so meets the pleading standards set forth in Rule 8. Finally, Twin Hill moves to strike the Plaintiffs' class allegations on the grounds that they have not, and cannot at a later stage, meet the requirements for class treatment. Because the Judge finds that the Plaintiffs' proximity theory is not implausible based on the facts alleged, the Plaintiffs sufficiently plead on-going or future harm. Whether the Plaintiffs can establish a likelihood of future harm is again an issue for another day. Therefore, the Judge denies Twin Hill's motion to strike class allegations. For these reasons, Judge tharo granted American's Rule 12(b)(6) motion to dismiss is granted. The dismissal, however, is without prejudice; the Plaintiffs have leave to re-plead their claims to address the issues set forth in the Opinion, if they are able. Any amended complaint is due no later than Oct. 4, 2018. The Judge denide Twin Hill's Rule 12(b)(6) motion to dismiss and Rule 12(f) motion to strike. A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinion and Order is available at https://is.gd/yB8Rcz from Leagle.com. Thor Zurbriggen, Plaintiff, represented by Charles Jacob Gower -- jgower@burnscharest.com -- Burns Charest LLP, pro hac vice, Korey Arthur Nelson -- knelson@burnscharest.com -- Burns Charest LLP, pro hac vice, Todd Lawrence McLawhorn -- tmclawhorn@siprut.com -- Siprut PC, Warren T. Burns -- wburns@burnscharest.com -- Burns Charest LLP, pro hac vice, Michael Matthew Chang -- mchang@siprut.com -- Siprut Pc, Nada Djordjevic, Boodell & Domanskis LLC & Stewart M. Weltman -- sweltman@siprut.com -- Siprut PC. Dena Catan, on behalf of themselves and on behalf of all others similarly situated, Plaintiff, represented by Todd Lawrence McLawhorn , Siprut PC, Charles Jacob Gower, Burns Charest LLP, Michael Matthew Chang, Siprut Pc, Nada Djordjevic, Boodell & Domanskis LLC & Stewart M. Weltman, Siprut PC. Haley Johnson, Joseph Catan, Timothy Terry, LuJuan Preston, Barbara Bell, Lynnette Chester, Doug Crumrine & Kimberly Johnson, Plaintiffs, represented by Charles Jacob Gower, Burns Charest LLP, Nada Djordjevic, Boodell & Domanskis LLC & Todd Lawrence McLawhorn, Siprut PC. Twin Hill Acquisition, Inc., a California corporation, Defendant, represented by Francis A. Citera -- citeraf@gtlaw.com -- Greenberg Traurig, LLP. & Caitlyn E. Haller -- hallerc@gtlaw.com -- Greenberg Traurig. American Airlines, Inc., Defendant, represented by Mark W. Robertson -- mrobertson@omm.com -- O'Melveny & Myers LLP, pro hac vice, Larry S. Kaplan, Kaplan, Massamillo & Andrews, LLC, Matthew J. Obiala -- mobiala@kmalawfirm.com -- Kaplan Massamillo & Andrews & Susannah K. Howard -- showard@omm.com -- O'Melveny & Myers LLP, pro hac vice. UNITED COLLECTION: Sprei Files FDCPA Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against United Collection Bureau, Inc. The case is styled as Esther Sprei on behalf of herself and all others similarly situated, Plaintiff v. United Collection Bureau, Inc., Defendant, Case No. 1:18-cv-05627 (E.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. United Collection Bureau, Inc. provides debt collection services for companies (government, healthcare, utility, financial service, communication, and student markets) and individuals in the United States. United Collection Bureau, Inc. was formerly known as UCB, Inc. and changed its name to United Collection Bureau, Inc. in August 1979. The company was founded in 1959 and is based in Toledo, Ohio.[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 UNITED STATES: El Paso County Joints PILT Class Action ------------------------------------------------------ Rachel Riley, writing for The Gazette, reports that El Paso County is joining a class-action lawsuit, seeking to recover about $5,000 from the federal government for payment it doesn't receive in property taxes on federal land. County commissioners unanimously voted on Sept. 11 to opt into the 2017 lawsuit, in which Utah's Kane County argued that the United States has underpaid local governments when doling out payments in lieu of taxes. Local jurisdictions with non-taxable federal lands get the payments to offset the loss of property tax revenues, per a 1976 law. The lawsuit alleges that from 2015 to 2017, Congress did not adequately compensate local governments. The U.S. Court of Federal Claims has granted summary judgment in favor of Kane County and other local governments in the class, ruling that the U.S. is obligated to make up for the underpayments, says a notice from the court. El Paso County is owed more than $7,000, Senior Assistant County Attorney Peter Lichtman wrote in a memo to county commissioners. About a third of that payout will go to attorney fees and litigation costs, though, county spokesman Dave Rose said. "Most Colorado counties have already or will be joining the class, just as El Paso County did, because it's necessary to receive the amount they were 'shorted' when Congress did not fully appropriate for the PILT (payment in lieu of taxes) legislation during the past couple of budget years," Mr. Rose said. [GN] UNIVERSITY OF MARYLAND: Sued Over Mishandled Rape Reports --------------------------------------------------------- Fern Shen, writing for Baltimore Brew, reports that a federal lawsuit charging that the University of Maryland Baltimore County worked in concert with Baltimore County police and prosecutors to cover up sexual assaults has sparked a furious reaction among students and alumni, including calls for UMBC Police Chief Paul Dillon to resign. "When students are here tomorrow it's going to be crazy. Since this broke on Sept. 14, online it's just been general outrage," said Julia Arbutus, editor-in-chief of The Retriever, the student newspaper. "There are fliers all over campus calling for Dillon to resign," Mr. Arbutus said. "They were taken down, but more get put up, especially on the smoking shelter nearest to the police station." "As a UMBC alumn, I'm disgusted and infuriated," Owen Silverman Andrews wrote on Twitter. "This is why we need a state-level Title IX compliance office and much more." A statement issued on Sept. 15 by two leaders of the Student Government Association said Dillon should resign immediately. "Following a report in The Baltimore Brew of the litigation. . . we are appalled and disgusted with the alleged inaction of Officer Dillon and the Campus Police," wrote SGA President Collin Sullivan and Executive Vice President Vrinda Deshpande. According to one allegation detailed in the complaint, Mr. Dillon persuaded a freshman who said she had been drugged -- and woke up bleeding in a dormitory bathroom -- not to report the assault to Baltimore County police. University officials later cleared the suspect of wrongdoing. The victim was thwarted in a second attempt to report the rape to county police when she learned that evidence from the rape kit examination she had submitted to had been destroyed because UMBC had misclassified the assault as "a suspicious condition." "Silenced, discouraged" The incident is just one detail in a 56-page class-action suit that also describes an alleged 2017 gang rape of two Towson University students by three UMBC baseball team members that was covered up by county police, prosecutors and UMBC officials. According to a story published in The Retriever, "athletic department officials were aware of the allegations against the players." "But despite this knowledge, they were allowed to participate in games anyway," the Retriever reported, citing "a source affiliated with the athletic department." Spokeswoman Lisa Akchin said UMBC "does not take actions to remove students from educational or extracurricular activities unless and until there is a finding of responsibility." According to the lawsuit, the complaint by one of the victims, plaintiff Anna Borkowski, was "inexplicably closed" less than 24 hours after the assault. County police later did interview the suspects -- "together, at a Chick-fil-A." But ultimately, the prosecutor declined to prosecute, even though she acknowledged there was probable cause, the lawsuit says. Student leaders Sullivan and Deshpande, in their letter to UMBC President Freeman A. Hrabowski, III, said the university had failed in its duty to protect all students in its handling of these and other reported rapes. "No student should ever feel silenced, discouraged or unsafe," they wrote. Mr. Dillon, who has been a university system employee since 1987 and worked at UMBC since 2010, has not responded to several messages left with his office. Students planned a campus protest on Sept. 14 at noon near the Commons building. Safety and Respect In a statement emailed on Sept. 14 to students, faculty and alumni, University officials declined to address the specific charges. "UMBC received notice of a civil lawsuit by two women alleging that the campus, Baltimore County Police, and others failed to properly respond to their reports of sexual assault in 2015 and 2017," the statement signed by Mr. Hrabowski and Provost Philip Rous began. "While it is not appropriate for us to comment on specific litigation, it is essential to state that our campus is committed to safety and respect for all people and takes matters related to sexual misconduct very seriously," they wrote. UMBC's overall handling of sexual assault reports is a key component of the class action suit, filed in U.S. District Court in Baltimore by plaintiffs Mr. Borkowski and Katelyn Frank. Defendants, in addition to Mr. Dillon, Shellenberger and UMBC, include Baltimore County, the Baltimore County Police Department, the Board of Regents for the University System of Maryland and a number of other individuals. The complaint alleges a long-term pattern by the defendants of "unfounding" rape allegations, destroying rape kits as little as 30 days after the examinations, and mis-classifying rape reports as "suspicious circumstances." In their email, Mr. Hrabowski and Mr. Rous note that more than 125 faculty, staff and students gathered on Sept. 14 for UMBC's annual Title IX Sexual Misconduct Seminar. The seminar "is designed to continue to build our capacity to support all UMBC community members affected by sexual misconduct," their statement said. Bruises and Bite Marks Like dozens of other U.S. colleges and universities, UMBC has been under scrutiny in recent years for its handling of sexual assault under the Title IX gender equity law. In 2016, the U.S. Department of Education investigated its UMBC's handling of rape reports after an attorney filed a complaint charging the university with improperly responding to a student's case. The alleged victim was "drugged without her knowledge and subjected to a particularly violent sexual attack, which left her with significant bruises, bite marks, and other injuries on her body," her attorney said at the time. Ms. Akchin said UMBC "has not received notice of a determination from the Federal Office for Civil Rights" in that case. In another incident the previous year, UMBC expelled two students for violating the student code of conduct after an investigation into the 2014 sexual assault of another student. No one was criminally charged in the case and county police said there was not enough evidence a crime occurred. [GN] US BANK: Faces Class Action in Calif. Over Deceptive Bank Fees -------------------------------------------------------------- Anne Wallace, writing for LawyersandSettlements.com, reports that bank fees are growing rapidly, and consumers are feeling the pinch. Furthermore, many customers feel that they are somehow being hoodwinked into paying hidden, undisclosed costs. On August 2, 2018, Reyna McGovern filed a class action excessive bank fees lawsuit against U.S. Bank, N.A. (US Bank). Her lawsuit tackles two thorny issues: out-of-network ATM fees and overdraft fees charged when her account showed a sufficient account balance. These practices do not, at least today, seem to break federal banking law. But they are arguably deceptive, and ripe for California breach of contract and consumer law claims. OUT-OF-NETWORK ATM FEES US Bank is one of the nation's very largest banks. Size, however, is not measured by branches, convenience or customer happiness. It is measured by revenue. At some larger regional banks, customer fees account for as much as 40 percent of total bank revenues. Customers who have checking accounts at US Bank can easily find themselves without an in-network cash machine nearby. Should they make a withdrawal at an out-of-network bank, they will pay at least two fees: first, a $2.95 fee to the non-bank affiliated owner that operates the out-of-network ATM; and second, a $2.50 fee to US Bank for the withdrawal. If they check their balance before making the withdrawal, there is a third $2.50 fee to US Bank. That totals $7.95. For an impulsive $20 cash machine run, the bank makes a profit of more than 25 percent. Small dollars multiplied many times mean big profits for the bank. SURPRISE OVERDRAFT FEES HIT SMALL ACCOUNT HOLDERS ESPECIALLY HARD The second, and more tangled situation involves overdraft fees. It is only complicated because of the fine distinction that US Bank and many other banks make between two terms: "available balance" and "account balance." An "account balance" as defined in the US Bank customer agreement reflects a running total of funds in the account, including deposits and withdrawals. A customer's "available balance," however, will not reflect funds held from deposits and funds held for debit card authorizations. Here is the operational difference: * Banking customers who check their balances to ensure that they will not over draw, see their account balance: * Because of debit and deposit holds, however, the available balance may be less than the account balance; * The bank assesses overdraft fees based on the available balance; * Even careful, well-meaning customers who are working with small accounts can fall into overdraft because they relied on the wrong information; * Banks' practice of maintaining debit holds for as long as several days actually means that the available balance in an account may not be determinable until well after a debit card transaction occurs; * In addition, because banks frequently re-order transactions from highest to lowest amount, one over-the-limit transaction can ultimately trigger several overdraft fees; * Customers, especially those with limited funds, rarely sue big banks because of the cost of individual litigation, which is why class action litigation is essentially the only remedy in these situations today. Very few customers read the fine print on the deposit agreements they sign when opening a checking account, and even those who do can find these distinctions confusing. US BANK'S STANDARDIZED DEPOSIT CONTRACT The essence of Ms. McGovern's lawsuit against US Bank is that its standardized customer deposit agreement is deceptive with respect to both the balance inquiry ATM fee and the way in which overdraft fees are assessed. The standardized contract allegedly describes only one out-of-network fee, not the additional fee charged for an out-of-network balance inquiry. Further, Ms. McGovern claims that customers are misled because experience has taught them to expect a free opportunity to check an account balance before proceeding with a cash withdrawal from an out-of-network ATM. ATM screens do not typically disclose that a balance inquiry alone will incur a usage fee, and few ATMs in the United States charge usage fees for balance inquiries. The dispute about overdraft fees is familiar from many bank overdraft fees lawsuits. Ms. McGovern's lawsuit makes the point that most banking customers reasonably assume that debit transactions are debited from their accounts immediately -- not that they may be held for several days and then bundled in a way to maximize bank profits. Furthermore, the Consumer Financial Protection Board has flagged the practice of debit holds as deceptive when: "a financial institution authorized an electronic transaction, which reduced a customer's available balance but did not result in an overdraft at the time of authorization; settlement of a subsequent unrelated transaction that further lowered the customer's available balance and pushed the account into overdraft status; and when the original electronic transaction was later presented for settlement, because of the intervening transaction and overdraft fee, the electronic transaction also posted as an overdraft and an additional overdraft fee was charged." IS LEGISLATIVE RELIEF ON THE (DISTANT) HORIZON? U.S. Senators Cory Booker (D-NJ) and Sherrod Brown (D-OH) have introduced federal legislation that would regulate the overdraft fees that banks charge consumers. The Stop Overdraft Profiteering Act of 2018 would ban overdraft fees on debit card transactions and ATM withdrawals and limit fees for checks and recurring payments. It would also require banks to post transactions in a manner to minimize overdraft and nonsufficient fund charges. The bill is still in the very early stages of the legislative process, but might ultimately bring relief to bank customers, who currently have few remedies. [GN] USA TECH: Faces Class Action After Internal Probe Announcement -------------------------------------------------------------- Matthew Santoni, writing for Law360, reported that USA Technologies Inc. announced on Sept. 11 that it would delay its annual report for the 2017-18 fiscal year due to an internal financial investigation, setting off an investor class action. [GN] USA TECH: Rosen Law Firm Files Securities Class Action ------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, on Sept. 11 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of USA Technologies, Inc. (NASDAQ: USAT) from November 9, 2017 through September 11, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for USA Technologies investors under the federal securities laws. To join the USA Technologies class action, go to http://www.rosenlegal.com/cases-1413.htmlor 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 made false and/or misleading statements and/or failed to disclose that: (1) USA Technologies' treatment of contractual arrangements in its financial statements would result in an internal investigation and delay the filing of its annual report for fiscal year 2018; (2) consequently, USA Technologies' internal controls over financial reporting were weak and deficient; (3) as a result, defendants' statements about USA Technologies' business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. 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 November 13, 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 http://www.rosenlegal.com/cases-1413.htmlor to discuss your rights or interests regarding this class action, please 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. Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] VALLEY BROOK, OK: Motorists File Class Action Against Police ------------------------------------------------------------ Steve Shaw, writing for News9, reported that a Class Action lawsuit filed on Sept. 10 accuses Valley Brook Police of arresting motorists outside of their jurisdiction. Guthrie Defense Attorney Marvel Lewis says Valley Brook Police have been pulling people over on a stretch of Southeast 59th Street that Oklahoma City annexed 61 years ago. Valley Brook's Police referred all questions to town attorney Ray Vincent, who says he hasn't seen the lawsuit. Mr. Vincent also said an "inter-local agreement" between Valley Brook and Oklahoma City Police allows officers from both departments to arrests motorists on either side of the boundary line. However, Attorney Lewis says Oklahoma City terminated that agreement more than a decade ago. "Valley Brook knew or should have known that they should not have been on 59th Street and Eastern. I have no explanation why they keep enforcing stuff on roads that they shouldn't have been," Mr. Lewis said. [GN] VITAL PHARMACEUTICALS: Imran Files Class Action Over False Ad ------------------------------------------------------------- Ismail Imran, an individual and on behalf others similarly situated, Plaintiff, v. Vital Pharmaceuticals, Inc. and Does 1 through 25, inclusive, Defendants, Case No. 18-cv-05758, (N.D. Cal., September 19, 2018) brings claims for fraud, unjust enrichment and breach of express warranty under California's Consumer Legal Remedies Act, California's Unfair Competition Law and California's False Advertising Law. Vital Pharmaceuticals operates as VPX Sports, a manufacturer of nutritional supplements including, but not limited to, the BANG (R) product line. Imran asserts that the product's claimed nutritional value as represented in its label is not backed up by an independent laboratory testing. [BN] Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 600 W. Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 272-7014 Facsimile: (619) 330-1819 Email: rnathan@nathanlawpractice.com VOLKSWAGEN AG: Canada's Response to Emissions Scandal Criticized ---------------------------------------------------------------- Ainslie Cruickshank, writing for The Star Vancouver, reports that in the three years since the Volkswagen emissions-cheating scandal was uncovered, governments in the U.S., Germany and elsewhere have fined the company billions of dollars and sent some of its top executives to jail for breaking environmental laws -- but not in Canada. "There has been nothing done," said David Boyd, the United Nations' newly appointed human rights and environment watchdog. Mr. Boyd, who is also an expert in environmental law at the University of British Columbia, is concerned the Volkswagen scandal is on its way to becoming another example of Canada's "absolutely scandalous" failure to enforce environmental laws. "There has not been any indication that Volkswagen's going to be held responsible for their environmental crimes here," he said. "It's pretty alarming," said Tim Gray, executive director of Environmental Defence. It was "a massive scandal perpetrated on the public." While federal Environment Minister Catherine McKenna said she is hopeful there will be progress on the case soon, the Canadian investigation into the emissions-cheating scandal remains ongoing three years in. "The legal and regulatory environments vary between Canada and the U.S., and a court settlement and fines in the U.S. are not simply replicated in Canada," said department spokesperson Gabrielle Lamontagne. "Volkswagen Group Canada Inc. . . . has not publicly admitted to being guilty of an alleged offence in Canada," she said, adding that the company in Canada is a separate legal entity from its parent company in Germany and affiliates in the U.S., where Volkswagen has already paid significant fines. The scandal became public in 2015 -- roughly a month before the Liberal government came to power in Ottawa. Volkswagen and subsidiaries Audi and Porsche had been caught selling roughly 11 million diesel cars worldwide that were fitted with a "defeat device." It enabled the cars to cheat emissions testing, but on the road, they spewed significantly higher emissions than allowed -- 35 times the legal standard in Canada, according to Environmental Defence. Diesel emission standards are in place for good reason. The fumes are "highly toxic," Boyd said. A recent Health Canada study estimated diesel emissions alone were responsible for the premature deaths of more than 700 Canadians in 2015. In a statement, Volkswagen Canada spokesperson Thomas Tetzlaff said the company "is committed to making things right for our customers, dealers, regulators and the Canadian public." The company said in a statement it is implementing two settlements worth a combined $2.4 billion with customers who purchased one of 125,000 affected diesel vehicles sold in Canada -- as it did elsewhere in the world -- Volkswagen hasn't faced any charges under the Canadian Environmental Protection Act so far. There is concern among some observers that the federal government may not act, continuing what Mr. Boyd said is a longtime trend of leniency. "Three years have gone by and Canada has a track record of not enforcing environmental laws," he said. In 2004, Petro-Canada was fined $290,000 for the spill that saw 1,000 barrels of oil flow into the Atlantic Ocean from the Terra Nova offshore production vessel. By comparison, Brazil's petroleum regulator fined Chevron $17.3 million (U.S.) for a 3,600-barrel oil spill in 2011, and the company also agreed to pay $150 million to settle civil lawsuits related to the case, according to Reuters. Mr. Boyd said Canada levied $2.47 million (Canadian) in fines for environmental infractions under the Canadian Environmental Protection Act between 1988 and 2010 -- less than the $3.65 million the Toronto Public Library collected in overdue book fines in 2012. In contrast, the U.S. -- where Mr. Boyd said enforcement of environmental laws has been "much more aggressive" -- the Environment Protection Agency levied $204 million (U.S.) in civil fines and won court cases securing another $44 million in criminal fines from environmental lawbreakers in 2012 alone. "It's just indicative of how absolutely scandalous Canada's failure to enforce environmental laws has been over the past 25 years," he said. The Canadian government launched its own investigation into the Volkswagen emissions-cheating issue in September 2015, after the U.S. EPA issued a notice to Volkswagen alleging the company had violated the Clean Air Act. In a statement at the time, Environment Canada said Canadian laws and regulations "prohibit vehicle manufacturers and importers from equipping a vehicle with a defeat device." The department is still investigating Volkswagen for alleged environmental infractions, said Eric Campbell, director of communications for Environment Minister Catherine McKenna. "Investigations relating to alleged violations of the Canadian Environmental Protection Act are often highly complex and we must be certain that we have gathered and analyzed all of the necessary evidence and supporting information before any charges are filed," he said in a statement. Meanwhile, the company has been fined billions of dollars in the U.S. and Germany, and millions in Brazil and South Korea in the wake of the emissions scandal. Volkswagen paid the equivalent of $1.5 billion (Canadian) in fines in Germany and $12 billion in the U.S., according to an analysis by Environmental Defence, which is launching a public campaign to pressure Ottawa to take action against the company. In the U.S. case, Volkswagen also agreed not to contradict anything outlined in the plea agreement or statement of facts in other jurisdictions. South of the border, that money was earmarked for initiatives to reduce nitrogen oxide emissions, which are harmful to human health, and improve infrastructure for zero-emission vehicles. In Canada, Mr. Campbell said that "the government's investigation is proceeding in a comprehensive and methodical manner." "This is a complex case involving both domestic and foreign organizations, and a number of alleged offences under (the Canadian Environmental Protection Act)," he said. But it's not clear to Mr. Boyd or Mr. Gray why the investigation would take longer in Canada than the U.S. "We have politicians who like to talk about the polluter pays, but we really don't make polluters pay in this country," Mr. Boyd said. "It really is almost unbelievable the extent to which Canada treats corporate environmental criminals with kid gloves." Environmental Defence, the Canadian Association of Physicians for the Environment and their lawyers at Ecojustice hope that won't be the case this time. They made an official request for the environment minister to take charge of the government's probe into Volkswagen due to the "slowness" of Environment Canada's investigation. The request was denied because the federal department was already investigating the allegations, but the organizations have continued to fight in court for disclosure of records relevant to the Volkswagen investigation. "This is an easy and necessary way to help advance our climate agenda and at the same time send a clear message to corporate polluters that if you violate Canadian laws, you will be prosecuted and you will pay the price for that," Mr. Gray said. Correction -- Sept. 17, 2018: This article was edited from a previous version that mistakenly said Volkswagen settled one lawsuit, a $2.1-billion class action lawsuit in 2017. In fact, the company is implementing two settlements worth a combined $2.4 billion. This article also misstated the name of Petro-Canada. [GN] VOLKSWAGEN GROUP: Braunschweig Court Criticizes Ex-CEO Behavior --------------------------------------------------------------- Xinhua reported that the Braunschweig Higher Regional Court has criticized the response of former Volkswagen chief executive officer (CEO) Martin Winterkorn to the "dieselgate" scandal during a closely-watched class action trial on Sept. 11. Christian Jaede, the presiding judge, questioned why Winterkorn had not told Volkswagen shareholders about potential issues surrounding the installation of illicit software to understate nitrogen oxide (NOx) from diesel vehicles after he was informed internally in July 2015. The trial which opened on Sept. 10 centers on allegations by investors that Volkswagen failed to inform about its involvement in emissions-cheating practices in adequate and timely fashion. The so-called "template lawsuit", in which several plaintiffs unite to press charges collectively and resolve key questions to set a legal precedent, was only recently enabled by new legislation passed by the federal government in Berlin in response to the "dieselgate" scandal. In total, the group of mainly institutional investors who participate in the German "template lawsuit" is now demanding the repayment of 9 billion euros (10.4 billion U.S. dollars) in compensation from the carmaker. A key question of interest to the Braunschweig judges as well as German public is from which point onwards Volkswagen managers at the DAX-listed firm became aware of illicit emissions-cheating practices and would have hence been legally obliged to issue a warning to shareholders. Volkswagen has argued that there was no substantive evidence to justify such a step prior to the publication of accusations by U.S. environmental regulators in September 2015, whereas the plaintiffs claim that senior staff had detailed knowledge about the illegal practices as early as June 2008. The Braunschweig State Prosecution Office currently lists 49 suspects in its investigations into emissions-cheating at German carmakers. A small number of senior Volkswagen executives, including ex-CEO Winterkorn, his successor Diess and board chairman Hans Dieter Poetsch are hereby believed to have potentially committed "market manipulation" offenses under German laws that govern the conduct of publicly-listed companies. Speaking on Sept. 11, judge Jaede suggested that a technically-versed Winterkorn should have known about the defeat devices from 2008 onwards. In the same year, Volkswagen organized a "diesel strategy" summit in the United States shortly after the German Environmental Aid (DUH) group first flagged ongoing manipulations of test-setting emission readings from the automotive producer's diesel exhaust systems. [GN] VOLKSWAGEN GROUP: German Consumer Body to File Class Action ----------------------------------------------------------- Hans-Edzard Busemann and Jan Schwartz, writing for Reuters, reported that Volkswagen will face another class action lawsuit over its rigging of diesel emissions tests, this time at home when Germany introduces a new law in November. State-financed consumer protection organization vzbv said on Sept. 12 it would undertake "pioneering work" with motorists' lobby group ADAC by filing for damages on behalf of car owners. The class action was made possible after the German cabinet approved a draft law in May that will allow consumer protection organizations to litigate on behalf of the consumers they represent, avoiding the high legal costs that might otherwise put people off bringing legal action. Vzbv said it would aim to show that owners of VW, Audi, Skoda and Seat cars with so-called type EA 189 diesel engines had been intentionally harmed by the Volkswagen's use of software that was used to cheat emissions tests Volkswagen said the possibility did not change its view that there was no legal basis for consumers to make claims in connection to the diesel issue in Germany. Vzbv said it wanted to get compensation for some 2 million owners of diesel cars that were not as environmentally friendly as VW said they were at the time of purchase. VW admitted in 2015 it had used illegal engine control devices to cheat U.S. emissions tests. Nearly all U.S. owners of affected cars agreed to take part in a $25 billion settlement in 2016 in the United States that addressed claims from them, environmental regulators, U.S. states and dealers and included buyback offers and additional compensation for about 500,000 owners. VW had rejected criticism that the compensation for U.S. car owners was not extended to other jurisdictions. Consumers have brought lawsuits in countries including Switzerland, Australia and Belgium. Information for motorists on how to join the German action is due to be posted at https://www.musterfeststellungsklagen.de/ [GN] WELLS FARGO: $480MM Settlement in Hefler Suit Has Prelim Approval ----------------------------------------------------------------- In the case, GARY HEFLER, et al., Plaintiffs, v. WELLS FARGO & COMPANY, et al., Defendants, Case No. 16-cv-05479-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted both (i) the Plaintiffs' unopposed motion for preliminary approval of a class action settlement and for class certification; and (ii) the parties' motion to file under seal a confidential supplemental agreement. The Plaintiffs bring the federal securities class action against Wells Fargo and several of its officers and directors for violations of sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b-5. Union alleges that the Defendants made repeated misrepresentations and omissions about a core element of Wells Fargo's business: its acclaimed 'cross-selling' business model artificially inflating its stock price. Union seeks damages related to this inflation of Wells Fargo's stock price and its subsequent decline when the truth about Wells Fargo's practices came to light through a series of disclosures in September 2016. Hefler filed the initial complaint in the action on Sept. 26, 2016. Several related lawsuits based on the same misconduct were subsequently filed against Wells Fargo. On Jan. 5, 2017, the Court granted Union's motion to consolidate Hefler v. Wells Fargo & Co., Case No. 16-cv-5479, with Klein v. Wells Fargo & Co., Case No. 16-cv-5513, and to appoint Union as the Lead Plaintiff, Motley Rice LLC as the Lead Counsel, and Robbins Geller Rudman & Dowd LLP as the Liaison Counsel. The Court later granted Union's motion to substitute Bernstein Litowitz Berger & Grossman LLP as the Lead Counsel. Wells Fargo and the Individual Defendants filed a set of eight motions to dismiss, which the Court granted in part and denied in part on Feb. 27, 2018. Shortly thereafter, Union filed the operative second amended class action complaint. On July 31, 2018, Union filed an unopposed motion for preliminary approval of a settlement, and the parties filed a motion to file under seal a confidential supplemental agreement to the proposed settlement. As part of its preliminary approval motion, Union requests certification for the class, for settlement purposes, of all persons and entities who purchased Wells Fargo common stock from Feb. 26, 2014 through Sept. 20, 2016, inclusive. Union further requests that the Court appoint Union and four other Named Plaintiffs -- Hefler, Marcelo Mizuki, Guy Solomonov, and City of Hialeah Employees' Retirement System -- as the class representatives and the Lead Counsel as the class counsel. Under the Settlement, Wells Fargo has agreed to pay $480 million into the Settlement Fund within 15 days of the entry of a preliminary approval order. The following amounts will be subtracted from the Settlement Amount: (1) taxes; (2) notice costs; (3) attorneys' fees and expenses; and (4) service awards to the class representatives. Pursuant to the proposed plan of allocation, the class members who submit timely claims will receive payments on a pro rata basis based on the date(s) class members purchased and sold Wells Fargo common stock, as well as the total number and amount of claims filed. Nine months after the initial distribution, the Claims Administrator will make additional re-distributions to the class members if it is cost effective to do so. Any Settlement Funds not distributed to the class will be paid to a cy pres recipient: the Investor Protection Trust. In order to inform class members of the Settlement, Union proposes the following notice plan. Within 15 days of the Court's preliminary approval order, the Claims Administrator will begin mailing the Notice and Claim Form to those members of the Settlement Class as may be identified through reasonable effort. To facilitate this process, Wells Fargo will provide the Claims Administrator with Wells Fargo's shareholder lists of the holders of Wells Fargo common stock during the Class Period. No more than 25 days after preliminary approval, the Claims Administrator will also publish the Summary Notice in the Wall Street Journal and the Los Angeles Times, and transmit it over the PR Newswire. Union estimates that the Claims Administrator's administrative costs will be $2.5 million, which it proposes to pay from the Settlement Fund. The Lead Counsel also intends to seek attorneys' fees for all the Named Plaintiffs' counsel in an amount not to exceed 20% of the Settlement Fund, an award of litigation expenses of no more than $750,000, and an award to the class representatives not to exceed an aggregate total of $50,000. Judge Tigar (1) conditionally certified the proposed class for settlement purposes; (2) granted the motion to file the confidential supplemental agreement under seal; (3) and preliminarily approved the class action settlement, notice plan (as modified), and allocation plan. The fairness hearing will be held on Dec. 18, 2018 at 2:00 p.m. All other dates and deadlines will be calculated pursuant to the terms of the Settlement. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/6ZSkVJ from Leagle.com. Gary Hefler, Individually and on Behalf of All Others Similarly Situated, represented by Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Aelish Marie Baig -- aelishb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Jason C. Davis -- jdavis@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Union Asset Management Holding AG, Plaintiff, represented by Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, Adam H. Wierzbowski -- adam@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Aelish Marie Baig, Robbins Geller Rudman & Dowd LLP, Angus Fei Ni -- angus.ni@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Blair Allen Nicholas -- blairn@blbglaw.com -- Bernstein Litowitz Berger & Grossmann, Danielle Suzanne Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jason C. Davis, Robbins Geller Rudman & Dowd LLP, Jeroen Van Kwawegen -- jeroen@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Rebecca E. Boon -- Rebecca.Boon@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice & Salvatore J. Graziano -- sgraziano@blbglaw.com -- Bernstein Litowitz Berger Grossmann LLP, pro hac vice. Public School Teachers' Pension and Retirement Fund of Chicago, Plaintiff, represented by Blair Allen Nicholas, Bernstein Litowitz Berger & Grossmann. Marcelo Mizuki, Plaintiff, represented by Shawn A. Williams, Robbins Geller Rudman & Dowd LLP. Guy Solomonov, Plaintiff, represented by Shawn A. Williams, Robbins Geller Rudman & Dowd LLP. Steve Klein, Consol Plaintiff, represented by Jennifer Pafiti, Pomerantz LLP, J. Alexander Hood, II, Pomerantz LLP & Jeremy A. Lieberman, Pomerantz LLP. Wells Fargo & Company, Defendant, represented by Brendan P. Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell LLP, Christopher M. Viapiano -- viapianoc@sullcrom.com -- Sullivan & Cromwell LLP, pro hac vice, Nicolas Bourtin -- bourtinn@sullcrom.com -- Sullivan & Cromwell LLP, pro hac vice, Richard H. Klapper -- klapperr@sullcrom.com -- Sullivan and Cromwell LLP, pro hac vice & Sverker Kristoffer Hogberg -- hogbergs@sullcrom.com -- Sullivan & Cromwell LLP. John G. Stumpf, Defendant, represented by Grant P. Fondo -- gfondo@goodwinlaw.com -- Goodwin Procter LLP, Lloyd Winawer -- lwinawer@goodwinlaw.com -- Goodwin Procter LLP, Nicholas A. Reider -- nreider@goodwinlaw.com -- Goodwin Procter LLP & Richard M. Strassberg -- rstrassberg@goodwinlaw.com -- Goodwin Procter LLP, pro hac vice. John R. Shrewsberry, Defendant, represented by Ismail Jomo Ramsey, Ramsey & Ehrlich LLP -- izzy@ramsey-ehrlich.com -- Katharine Ann Kates -- katharine@ramsey-ehrlich.com -- Ramsey & Ehrlich LLP & Miles F. Ehrlich -- miles@ramsey-ehrlich.com -- Ramsey & Ehrlich LLP. Carrie L. Tolstedt, Defendant, represented by Enu A. Mainigi, Williams & Connolly LLP, pro hac vice, Jeffrey E. Faucette, Skaggs Faucette LLP & Leslie Cooper Vigen -- lvigen@wc.com -- Williams & Connolly LLP, pro hac vice. Oregon Public Employees Retirement System, Defendant, represented by Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc.. Timothy J. Sloan, Defendant, represented by Josh Alan Cohen -- jcohen@clarencedyer.com -- Clarence Dyer & Cohen LLP, Adam F. Shearer -- ashearer@clarencedyer.com -- Clarence Dyer & Cohen LLP & Nanci L. Clarence -- nclarence@clarencedyer.com -- Clarence Dyer & Cohen LLP. David M. Carroll, Defendant, represented by James Neil Kramer -- jkramer@orrick.com -- Orrick, Herrington & Sutcliffe LLP, Lily Irene Becker -- lbecker@orrick.com -- Orrick Herrington and Sutcliffe & Walter F. Brown -- wbrown@orrick.com -- Orrick Herrington & Suutcliffe LLP. David Julian, Defendant, represented by Timothy Paul Crudo -- tcrudo@coblentzlaw.com -- Coblentz Patch Duffy & Bass LLP & Rees Ferriter Morgan -- rmorgan@coblentzlaw.com -- Coblentz Patch Duffy & Bass LLP. Hope A. Hardison, Defendant, represented by Edward W. Swanson -- ed@smllp.law -- Swanson & McNamara LLP & Mary Geraldine McNamara -- mary@smllp.law -- Swanson & McNamara LLP. Michael J. Loughlin, Defendant, represented by Ted W. Cassman -- cassman@achlaw.com -- Arguedas Cassman & Headley, LLP & Laurel L. Headley -- headley@achlaw.com -- Arguedas Cassman & Headley, LLP. WELLS FARGO: Dec. 18 Settlement Fairness Hearing Set ---------------------------------------------------- UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GARY HEFLER et al., Plaintiffs, vs. WELLS FARGO & COMPANY et al., Defendants. Case No. 3:16-cv-05479-JST CLASS ACTION SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: All persons and entities who, during the period from February 26, 2014 through September 20, 2016, inclusive, purchased the common stock of Wells Fargo & Company ("Wells Fargo") (the "Settlement Class"): PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Northern District of California, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full printed Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Action has reached a proposed settlement of the Action for $480,000,000 in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. The Action involves allegations that Wells Fargo and certain of its officers and directors violated federal securities laws. Plaintiffs allege that, during the period from February 26, 2014 through September 20, 2016, Wells Fargo and certain of its officers and directors made misrepresentations and omissions about Wells Fargo's "cross-selling" business model, including failing to disclose that thousands of Wells Fargo employees were opening unauthorized deposit and credit card accounts without the knowledge or consent of Wells Fargo's customers, in violation of Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). Plaintiffs also allege that certain Individual Defendants sold Wells Fargo common stock while in possession of material non-public information, in violation of Section 20A of the Exchange Act. Defendants deny the allegations in the Action and deny any violations of the federal securities laws. Issues and defenses at issue in the Action included (i) whether Defendants made materially false statements; (ii) whether Defendants made the statements with the required state of mind; (iii) whether the alleged misstatements caused class members' losses; and (iv) the amount of damages, if any. A hearing will be held on December 18, 2018 at 2:00 p.m., before the Honorable Jon S. Tigar at the United States District Court for the Northern District of California, Courtroom 9 of the Phillip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated July 30, 2018 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Wells Fargo Securities Litigation, c/o Epiq, P.O. Box 3770, Portland, OR 97208-3770, 1-855-349-6457. Copies of the Notice and Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.WellsFargoSecuritiesLitigation.com. If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than January 23, 2019. If you are a Settlement Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than November 27, 2018, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be submitted to the Court no later than November 27, 2018, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, Wells Fargo, any other Defendants or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel: BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Salvatore J. Graziano, Esq. 1251 Avenue of the Americas, 44th Floor New York, NY 10020 Tel: (800) 380-8496 settlements@blbglaw.com Requests for the Notice and Claim Form should be made to: Wells Fargo Securities Litigation c/o Epiq P.O. Box 3770 Portland, OR 97208-3770 855-349-6457 www.WellsFargoSecuritiesLitigation.com By Order of the Court WESTERN UNION: Judge Cuts Attorney's Fees in TCPA Case Settlement ----------------------------------------------------------------- DM Herra, writing for Cook County Record, reported that a federal judge gave a blistering condemnation of Chicago class action attorney Joseph Siprut's request for fees in a settlement in which he had requested more than $2 million for obtaining class members settlements around $95 each. Mr. Siprut, of Siprut P.C., will instead receive $425,000 for his work representing a class of 54,315 people who allegedly received unsolicited text messages from Western Union in violation of the Telephone Consumer Protection Act. Within three months of the litigation's filing, the two sides had entered into mediation. A year later, a settlement had been reached in principle, which was confirmed with little difficulty. In approving the settlement, U.S. District Judge Gary Feinerman said he was given "great pause, not about the appropriateness of class certification or the size of the class settlement, but about the conduct and representations of lead class counsel." Judge Feinerman said he deliberately waited for the conclusion of a similar class action suit in which Siprut represented the plaintiffs and had made what the U.S. Seventh Circuit Court of Appeals called "rapacious requests for fees." In the settlement, Western Union agreed to pay $8.5 million. The original agreement called for about $5.2 million to be divided among the plaintiffs. The lead plaintiff would receive a $5,000 incentive award and more than $481,000 will be set aside for notice and administration costs. The agreement asked for the remaining $2.8 million, about 35 percent of the total, to be paid to Mr. Siprut for attorney fees. Judge Feinerman certified the class and approved the total settlement amount, calling both appropriate. He clarified the language describing the class and ordered a second email notice be sent to class members who had not filed claims. When it came to the attorney fees, Judge Feinerman wrote that it appeared Siprut had attempted to make it appear his team did more work than they possibly could have done in order to justify a larger fee. In a class action settlement, the court is free to set attorney fees based on either a percentage of the award or on an estimate of how many hours the attorney likely spent negotiating the award. Judge Feinerman said Mr. Siprut "started off on the wrong foot" when he challenged an objector's credibility based on a nonexistent felony history, then refused to apologize. Mr. Siprut did apologize after several more hearings, though the judge felt the apology lacked sincerity and any real admission of wrongdoing. "If that were the extent of Siprut's missteps . . . this would have remained an ordinary case," Judge Feinerman continued. "But it was not." To support his request for fees, Mr. Siprut attested that he and his staff spent more than 2,164 man-hours on the settlement. According to court documents, Mr. Siprut provided a chart breaking down the time he and four staffers spent on each of 15 categories. Each person's time was recorded to the tenth of an hour in each category. But when the court tried to get actual time records, Mr. Siprut said they did not exist. Because the number of reported hours "seemed excessive for a case that was barely litigated before going to mediation," the court asked the defendant's attorneys how many hours they had billed on the case and learned it was less than 1,000. The law does not require attorneys to maintain records of the hours spent on a case as they go, and permits them to reconstruct their hours at a later date, as Mr.Siprut did. But Judge Feinerman theorized that by providing a detailed chart breaking time down to the tenth of an hour, Mr. Siprut intended to create a false impression that his staff had spent many hours and kept detailed records. The fruit of this labor is underwhelming, Judge Feinerman wrote, noting that it was difficult for him to believe the few boilerplate documents entered into the record took hundreds of hours to create. According to Mr. Siprut's chart, more than 385 hours were spent on "post-mediation communications and drafting settlement agreement," but no post-mediation communications were provided and the settlement agreement is largely boilerplate. "It is simply impossible that Siprut and his colleagues spent anywhere near 385 hours on those tasks," Judge Feinerman wrote. "In the extremely unlikely event that they did, the time they spent was wholly unreasonable." Given his belief that the hours had been inflated, leaving a smaller pool of money for the class members, the judge said he would have been within his rights to deny attorney's fees altogether. But given the positive outcome for the class and the fact that Mr. Siprut will be responsible for any administrative expenses over and above the amount set aside for them, Judge Feinerman set the fees at $425,000 -- just 5 percent of the total settlement and millions less than Mr. Siprut requested. "This substantial reduction is warranted in light of the uniquely distressing circumstances of this case," Judge Feinerman wrote. "The difference between Siprut's requested fees and costs and the fees and costs awarded will revert to the class." [GN] WHIRLPOOL: Sued Over AquaLift Self-Cleaning Technology ------------------------------------------------------ Chris Rickert, writing for State Journal, reports that Jan Rohde's monthslong dispute with Whirlpool over her not-so-self-cleaning self-cleaning Whirlpool oven is coming to a close. On Sept. 3, she wrote to say she'd received a $1,410 refund for the oven, including taxes. SOS has fielded some 20 complaints from Whirlpool customers upset that Whirlpool's low-heat AquaLift self-cleaning technology doesn't work. Attorneys are also seeking class-action status for a suit against Whirlpool claiming the technology doesn't work. [GN] YVES SAINT LAURENT: Diaz Files ADA Suit in New York --------------------------------------------------- A class action lawsuit has been filed against Yves Saint Laurent America, Inc. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. Yves Saint Laurent America, Inc., Defendant, Case No. 1:18-cv-09248 (S.D. N.Y., Oct. 9, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Yves Saint Laurent manufactures fashion products for men and women.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal [*] Gerry Brownlee Accused of Intimidating Class Action Lawyer -------------------------------------------------------------- Newstalk ZB reported that Gerry Brownlee is being accused of bullying and intimidating a lawyer involved in a class action. Auckland law firm Adina Thorn is planning a class action against manufacturers of non-compliant steel mesh. The firm says Mr. Brownlee telephoned and confronted a junior solicitor with a number of allegations and complaints, and made bullying comment in a 15-minute call. Ms. Thorn herself says she's appalled a senior member of Parliament would attempt to intimidate anyone planning a legal action. She says the motivation for his call seems unclear. Mr. Brownless denies he was bullying the solicitor. [GN] [*] JND Legal Administration Named #1 Claims Administrator ---------------------------------------------------------- JND Legal Administration, a legal management and administration company serving law firms, companies and government entities, on Oct. 9 disclosed that it has been recognized as the best claims administrator according to the Ninth Annual New York Law Journal Best of Survey. JND was ranked #1 among 11 other service provider nominees in the claims administrator category, one of the top three legal notice and advertising services, and among the top three end-to-end eDiscovery providers. "It is an honor to be voted the #1 claims administrator and among the top three service providers in two other categories by the New York Law Journal readership and legal community at large," comments David Isaac, executive co-chairman and co-founder of JND Legal Administration. "We truly appreciate this noteworthy recognition for the comprehensive range of services and resources we provide to meet our clients' diverse legal administration needs." This award makes the third year in a row that JND has been voted the top legal administration firm by the readers of leading legal publications, further enhancing its reputation as an industry leader that is one of the fastest-growing companies in this space. Under the direction of industry veterans Jennifer Keough, Neil Zola and David Isaac, the firm has recently expanded its core service lines to include lien resolution management alongside its existing mass tort, class action administration, eDiscovery, corporate restructuring, and government services divisions. The New York Law Journal Best of Survey, formerly known as Reader Rankings, is an annual survey of lawyers, legal support staff and other legal personnel who vote on a range of companies nominated as the best providers of legal products and services. The 2018 survey launched on June 25 and concluded on July 24, featuring companies in dozens of categories. The full results of the ranking were published in a special print supplement to The New York Law Journal on Sept. 24. About JND Legal Administration JND Legal Administration -- http://www.jndla.com-- is a legal management and administration company led by industry veterans who are passionate about providing superior service to clients. Armed with decades of expertise and a powerful set of tools, JND has deep experience expertly navigating the intricacies of multiple, intersecting service lines including class action settlements, corporate restructuring, eDiscovery, mass tort claims and government services. JND is trusted by law firms, government agencies and Fortune 500 companies across the nation. The company is backed by Stone Point Capital and has offices in California, Colorado, Minnesota, New York, Washington and Washington, D.C. [*] South Korea Justice Minister to Expand Class Action System -------------------------------------------------------------- Yonhap reported that Justice Minister Park Sang-ki said on Sept. 17 the government will try to expand the class action lawsuit system so as to enable consumers to file such suits not only in stock-related cases, but also in other areas. Justice Park made the remark during a meeting with victims of high-profile consumer cases, such as a series of fires involving BMW cars and deaths caused by humidifier sterilizers. The meeting was set up to discuss expanding the class action suit system. A class action lawsuit refers to a system where not only those participating in a suit, but also other consumers can receive damages without filing separate suits. In South Korea, the system is allowed only in stock-related cases, but calls have risen for its expansion, especially in the wake of the BMW fires. "We're going to introduce the class action lawsuit system in areas where group damage can occur in a repetitive manner, while improving the criteria for such suits and procedures in a reasonable way," Justice Park said during the meeting. Justice Park also said the government will put together detailed measures to expand the system. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***