/raid1/www/Hosts/bankrupt/CAR_Public/181023.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 23, 2018, Vol. 20, No. 212
Headlines
AAA TOWING: Merced Wants Damages for Unpaid OT and Retaliation
ACCENTURE LLP: Improperly Classifies Consultants, Thomas Alleges
ADEPTUS HEALTH: Claims in Retirement Group Securities Suit Narrowed
ALL WEB LEADS: Fails to Pay Overtime Wages, Lemieux Claims
ALLSTATE INSURANCE: Sayles Suit Brought Before Penn. Sup. Ct.
ALLTRAN FINANCIAL: Violates FDCPA, Sprei Suit Asserts
ALNYLAM PHARMA: Bronstein Gewirtz Files Securities Class Action
AMERICAN SECURITY: Fla. Homeowners' Insurance Class Action Tossed
ANDREWS & LAWRENCE: Faces Cisneros Suit in Maryland Under FDCPA
APPLIED BUSINESS: Faces Adams FDCPA Suit in Virginia
ARKANSAS TOTAL: Hatch Suit Alleges FLSA and AMWA Violations
ARTEMIDE INC: Figueroa Files ADA Suit in S.D. New York
BRADLEY COUNTY, TN: Ex-Inmate Sues Over Medical Care at Jail
BREAKTHROUGH TOWING: Faces Class Action Over Predatory Practices
BURY THE HATCHET: Bailey Suit Alleges TCPA Violation
CAR WASH EXPRESS: Munoz Files Labor Suit in New York
CHARTER COMMUNICATIONS: Moorman Seeks to Recover Wages Under FLSA
CHEGG INC: Glancy Prongay Files Securities Class Action
CHICAGO, IL: Faces Unjust Enrichment Suit Over Red Light Camera
COHEN ROBERTS: Faces Harrison FDCPA Suit in Ohio
COLLECTO INC: Keller-Brittle Suit Alleges FLSA Violation
CONNECTICUT WATER: Paskowitz Suit Challenges Sale to SJW Group
CORE40: Williams Suit Seeks Damages, Civil Penalties
CSK AUTO: Court Amends Definition of Melgar Settlement Class
CYBER PIZZA: Jeong Suit Seeks Overtime Wages
DANICECOM LLC: Figueroa Class Suit Asserts ADA Breach
DIOCESE OF PITTSBURGH: Bishops Support Sex Abuse Victim Fund
DPHC Enterprise: Cottman Class of Drivers Conditionally Certified
EATON VANCE: Price Sues for Breach of Plan Fiduciary Duties
EQUIFAX INFORMATION: Court Narrows Claims in Shimon FCRA Suit
EVERETT FINANCIAL: Appeals Ruling in Baretich Suit to 9th Cir.
FACEBOOK INC: Dean Class Suit Asserts Fraud
FIVE GUYS: Female Managers File Wage Discrimination Class Action
FLORIDA HOME: Powell-Gachau Seeks to Recover Overtime Pay for CNAs
FORD MOTOR: Faces Class Action Over Defective F-150 Brakes
FORD MOTOR: Sued Over Anti-Racketeering Law Violations
FRAME LA BRANDS: Violates ADA, Figueroa Suit Says
FYRE MEDIA: Promoter Gets Six-Year Jail Sentence for Fraud
GALILEE MEMORIAL: Plaintiffs Disappointed Over Jury Verdict
GOOGLE INC: Faces Class Action Over Google Plus User Data Leak
GREAT PLAINS: Brite Files Class Suit Under FLSA
GRUBHUB: State Court Should Decide on Labor Dispute, Judge Says
HERTZ GLOBAL: Shearman & Sterling Discusses Class Suit Dismissal
HI-TEK MANUFACTURING: Sued by Pankey Over FCRA Violations
HJ HEINZ: Court Closes Lopez Suit Without Prejudice
HOME DEPOT: Case on CAFA Interpretation Joins SCOTUS Docket
HYUNDAI MOTOR: 9th Cir. En Banc Panel Reviews Settlement
INSYS THERAPEUTICS: Martin Files Suit in Ariz. for Personal Injury
INVUITY INC: Leibowitz Files Suit Over Sale to Stryker Corp.
JARINC LTD: Blose Suit Alleges FLSA Breach
JOSEPH CORY: Truckers' Wage Suit Not Pre-Empted by Federal Law
KETTERING HEALTH: Doctor Billing Lawsuit Expands
KROGER CO: 9th Cir. Revives Transfat Class Action
LEGEND MINING: FLSA Class in Kaesemeyer Conditionally Certified
LILLY COMPANY: Fails to Pay Proper Overtime Wage, Sarrels Suit Says
LIVERIGHT SENIOR: Sain Sues Over Fixed Daily Rate With No OT Pay
MASSACHUSETTS: Sprawling Relief Ordered on Tainted Drug Cases
MDL 2672: Volkswagen Must Face Customers' RICO Claims
MDL 2804: Forest Park to Join Opioid Epidemic Class Action
MICROCHIP TECHNOLOGY: Kessler Topaz Meltzer Files Class Action
MILLY LLC: Violates ADA, Figueroa Suit Says
MONSANTO CO: Cancer Victim's Attorneys Challenge New Trial Bid
MOTT'S LLP: Falsely Advertises Fruit Snacks, Morris Suit Claims
MRO CORP: Ct. Denies Intervenors' Bid to Receive Wilson Discovery
NAMASTE TECHNOLOGIES: Faces McCormick Securities Suit in Calif.
NATIONAL AUSTRALIA: Faces Class Action Over Credit Card Insurance
NATIONAL ENTERTAINMENT: Bid to Dismiss De Angelis FLSA Suit Nixed
NATIONSTAR MORTGAGE: Court Dismisses Kawelo Suit With Prejudice
NCIX: Faces Class Action in B.C. Over Customer Data Breach
NELNET: Faces Class Action Over Unfair Debt Collection Practices
NESTLE WATERS: Seeks Dismissal of Poland Spring Class Action
NIBCO INC: PEX Products Fail Prematurely, Puleo Suit Alleges
OCEAN DRIVE'S: Judge Approves Class Action Over Unpaid Wages
OCWEN LOAN: Supplemental Brief on Unclaimed Camberis Funds Ordered
OREGON: Anti-Union Groups Sue for Past Union Dues
PAPA JOHN'S: Pomerantz Law Files Class Action
PETRO INC: Court Narrows Claims in Donnenfeld Suit
PITNEY BOWES: Noteholders File Securities Class Action
PROSPECT MEDICAL: Court Refuses to Impose Sanctions in Guazza Suit
READING INTERNATIONAL: Faces Figueroa Class Action in New York
RECREATIONAL EQUIPMENT: Faces Figueroa Suit Asserting ADA Breach
REPETTI CAR: Cambron Suit Alleges FLSA and NYLL Violations
RYAN SCOTT LLC: Itayim Files Class Action Under TCPA
SALOV NORTH: 9th Cir. Affirms Approval of Kumar Suit Settlement
SCHOLASTIC INC: Violates Disabilities Act, Says Figueroa Action
SEA CREST: Skudin Files Suit Over Illegal Wage Practices
SERCO INC: Former Call Center Employee Files FLSA Class Action
SETERUS INC: Violates FDCPA, Albers Suit Says
SINCLAIR BROADCAST: Bon-Ton Sues Over TV Commercial Price-fixing
SMILEY DENTAL: Rodriguez Seeks to Recover Overtime Pay Under FLSA
SONY: Estate of Rick Nelson Files Royalties Class Action
SOUTHERN ILLINOIS UNIVERSITY: Ahad Class Certification Denied
STATE FARM: Settle Wants to Stop Unsolicited Telemarketing Calls
STATE FARM: Sued for Undervaluing Homes Burned in 2017 Wildfires
STATOIL USA: Court Grants Bid to Dismiss Amended Marbarker Suit
STEINHOFF INT'L: Investors Invited to Join European Class Suit
SYLVAN HIGHLANDS: 2nd Suit Alleges Exposure to Asbestos
SYNAPSE GROUP: Can't Compel Bank Statements Production in Price
TELLTALE: Faces Class Action Over Labor Law Violations
TESARO INC: Confidentiality App. in Bowers Agreements Limited
TESLA INC: Kaskela Law Files Class Action Lawsuit
TESLA INC: Levi & Korsinsky Files Class Action Lawsuit
TESLA INC: Safirstein Metcalf Files Class Action
TG THERAPEUTICS: Sued by Reinmann for Issuing False Statements
TICKETMASTER: Class Action Mulled Over Scalper Operations
UBER TECH: Drivers Must Arbitrate Claims, Court Rules
UBER TECHNOLOGIES: Class Action Settlement Gets Prelim. Court OK
UBER TECHNOLOGIES: Womble Bond Discusses Dismissal of Ill. Suit
UNITED COLLECTION: Faces Bissell Suit Asserting FDCPA Breach
UNITED STATES: Court OKs $3.4MM Atty's Fees in Suit vs CIA
UPS: Class of Seasonal Drivers in Ortez Conditionally Certified
VENETIAN CASINO: Yousif FCRA Suit Settlement Has Final Approval
WALGREEN CO: Jackson-Mau Suit Alleges NY Business Law Violation
WALGREEN CO: Morales Files Suit in Cal. Super. Ct.
WALMART INC: Drained Gift Cards Lead to Class Action Lawsuit
ZOE'S KITCHEN: Reigrod Suit Challenges Merger With Cava Group
*********
AAA TOWING: Merced Wants Damages for Unpaid OT and Retaliation
--------------------------------------------------------------
GUSTAVO A. MERCED, and other similarly-situated individuals v. AAA
TOWING & RECOVERY, LLC, d/b/a M.I.A. TOWING & RECOVERY, and EDWING
RODRIGUEZ, individually, Case No. 6:18-cv-01662-CEM-GJK (M.D. Fla.,
October 4, 2018), seeks to recover money damages for alleged unpaid
overtime wages, and retaliation under the laws of the Fair Labor
Standards Act.
AAA Towing & Recovery, LLC, doing business as M.I.A. Towing &
Recovery, is a Florida corporation, having a place of business in
Orlando, Orange County, Florida, where the Plaintiff worked for the
Defendants. Mr. Rodriguez is the owner/partner and manager of the
Company.
The Defendant is a towing company operating a 24/7 road side
assistance in Miami-Dade, Monroe, and Orange County.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
ACCENTURE LLP: Improperly Classifies Consultants, Thomas Alleges
----------------------------------------------------------------
LYNDA THOMAS, individually and on behalf of all others similarly
situated v. ACCENTURE, LLP, d/b/a SAGACIOUS CONSULTANTS, LLC, and
DB HEALTHCARE, INC., Case No. 2:18-cv-13128-VAR-SDD (E.D. Mich.,
October 5, 2018), alleges that the Plaintiff and other similarly
situated consultants were knowingly and improperly classified as
independent contractors or exempt employees, and, as a result, did
not receive overtime pay for hours worked in excess of 40 in a
workweek.
The Defendants recruit and employ Consultants to work on healthcare
projects at their clients' hospitals and medical centers.
Accenture is an Illinois limited liability partnership. Among
other services, Accenture's work includes providing information
technology educational services for the healthcare industry across
the country. Accenture maintains its principal office in Chicago,
Illinois.
DB Healthcare is a Massachusetts incorporation. DB Healthcare
specializes in consulting and providing staff augmentation services
to hospitals, health insurance companies, pharmaceutical,
biotechnology, clinical research, genomics and medical devices
companies nationwide. DB Healthcare maintains its principal office
in Andover, Massachusetts.[BN]
The Plaintiff is represented by:
David M. Blanchard, Esq.
Frances J. Hollander, Esq.
BLANCHARD & WALKER, PLLC
221 N. Main Street, Suite 300
Ann Arbor, MI 48104
Telephone: (734) 929-4313
E-mail: blanchard@bwlawonline.com
hollander@bwlawonline.com
- and -
Shanon J. Carson, Esq.
Sarah R. Schalman-Bergen, Esq.
Alexandra K. Piazza, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: scarson@bm.net
sschalman-bergen@bm.net
apiazza@bm.net
- and -
Harold Lichten, Esq.
Olena Savytska, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: hlichten@llrlaw.com
osavytska@llrlaw.com
ADEPTUS HEALTH: Claims in Retirement Group Securities Suit Narrowed
-------------------------------------------------------------------
In the case, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM, v. ADEPTUS
HEALTH INC., et al, Civil Action No. 4:17-CV-00449 (E.D. Tex.),
Judge Amos L. Mazzant, III of the U.S. District Court for the
Eastern District of Texas, Sherman Division, (a) granted in part
and denied in part (i) the Executive Defendants' Motion to Dismiss;
(ii) the Underwriter Defendants' Motion to Dismiss the Consolidated
Class Action Complaint; and (iii) the Director Defendants' Motion
to Dismiss the Consolidated Class Action Complaint; (b) denied
Sterling's Motion to Dismiss the Class Action Complaint; and (c)
denied as moot the Defendants' Motion for Oral Argument on Motions
to Dismiss.
Adeptus was in the healthcare industry, specifically in the
business of freestanding emergency rooms ("FERs"). Adeptus was a
fast-growing company and was moving into new markets through the
use of joint ventures. On June 25, 2014, it conducted its initial
public offering ("IPO") at $22 per share pursuant to the
registration statement and accompanying prospectus. On May 11,
2015, Adeptus conducted a secondary public offering pursuant to a
May 4, 2015 registration statement and May 5, 2015 prospectus. On
July 29, 2015, Adeptus conducted another secondary public offering
pursuant to a July 20, 2015 registration statement and July 29,
2015 prospectus. On June 8, 2016, Adeptus conducted a third
secondary public offering pursuant to a June 2, 2016, prospectus
and July 2015 registration statement ("class period").
The Lead Plaintiffs Alameda County Employees' Retirement
Association and Arkansas Techer Retirement System, and the
additional named Plaintiff Miami Firefighters' Relief and Pension
Fund, allege that during the class period, the Defendants made
misleading statements to investors about Adeptus. The Named
Plaintiffs allege that the Defendants made three general categories
of misrepresentations.
According to the Named Plaintiffs, the Defendants repeatedly
represented that Adeptus had a high patient acuity mix and that low
acuity level patients were informed of the prices at FERs and
educated on urgent care centers. However, to the contrary, Adeptus
conducted an internal analysis of its patient acuity level and
determined that over 60% of Adeptus's patients could have been
treated in urgent care centers. Moreover, an NBC-affiliate, KUSA,
ran a story on Adeptus, corroborating the internal analysis
suggesting a lower acuity level than represented and also reporting
that Adeptus was overbilling low-acuity patients.
In order to grow its business, Adeptus entered into several joint
ventures. The Defendants represented that Adeptus owned a 49%
equity stake in the joint ventures and the partner would own 51%
equity interest in the joint venture. Further, they represented
that Adeptus, even though a minority interest holder, would capture
65% of the profits of the joint venture along with a variety of
other representations regarding the joint venture structure.
However, the joint venture business model required Adeptus to fund
100% of the joint venture's working capital and absorb 100% of
their operating losses. This cost sharing structure was not
disclosed to investors.
In October 2015, Adeptus retained an affiliate of McKesson Corp. to
handle all coding, billing, and revenue collection to ensure
compliance with all mandates by the U.S. Department of Health and
Human Services. A few months later, in February 2016, Adeptus
announced that it could not rely on the SOC-1 Report (the Service
Organization Control Report) created by McKesson to establish the
adequacy of Adeptus's internal control over coding and billing
functions, but assured investors that this was simply due to the
timing of McKesson's hiring. However, investors later discovered
that there were key aspects of the revenue cycle management process
that were not being performed.
These facts led to a significant loss in revenue, which is also
alleged to be kept from the investors. On Oct. 27, 2016, the first
complaint for violations of federal securities laws was filed based
on the above misrepresentations and omissions. The plaintiffs
alleged violations of Sections 11, 12(a)(2), and 15 of the
Securities Act and Sections 10(b) and 20(a) of the Exchange Act
based on the misrepresentations made to investors regarding
Adeptus.
On April 19, 2017, Adeptus filed a voluntary petition for
bankruptcy. On Aug. 31, 2017, the Court appointed the Lead
Plaintiffs in the case. On Nov. 21, 2017, the Named Plaintiffs
filed the amended Consolidated Class Action Complaint. On Feb. 5,
2018, the Defendants filed their various motions to dismiss,
arguing the Court should dismiss the Named Plaintiffs' claims under
both Rule 12(b)(6) and 12 (b)(1).
The Underwriter Defendants' argue that the Named Plaintiffs do not
have standing to assert their Securities Act claims based on the
IPO, the May 2015 Offering, or aftermarket purchases of the July
2015 Offering and June 2016 Offering.
Because the parties agree to the facts of this case, Judge
Mazzant's analysis is simple. The Named Plaintiffs did not
purchase shares directly in the IPO or the May 2015 Offering and,
therefore, lack standing under Section 12(a)(2) to sue regarding
the IPO and the May 2015 Offering. Further, the Named Plaintiffs
did not purchase any shares that are traceable to the IPO or the
May 2015 Offering. Accordingly, they lack standing to sue under
Section 11 in the IPO and the May 2015 Offering.
However, the Judge disagrees with the Underwriter Defendants that
the Court should dismiss any aftermarket shares for the July 2015
Offering or the June 2016 Offering. He finds that all relevant
parties admit that the Named Plaintiffs purchased shares from the
July 2015 Offering and the June 2016 Offering and have standing to
assert claims as to these offerings. The Defendants have not
pointed the Court to any case law to suggest that, at the pleadings
stage, he should analyze standing in a piecemeal fashion and limit
the scope the class. Accordingly, because the Named Plaintiffs
have demonstrated that they have standing in the July 2015 Offering
and June 2016 Offering, the claims relating to these offerings will
not be dismissed at this juncture.
The Named Plaintiffs assert a Section 10(b) claim against the
Executive Defendants, Section 20(a) claims against the Executive
Defendants and the Sterling Defendants, Section 11 claims against
the Executive Defendants, the Director Defendants, and the
Underwriter Defendants, Section 12(a)(2) claims against the
Underwriter Defendants, and Section 15 claims against the Executive
Defendants and the Sterling Defendants. The Defendants move to
dismiss these claims for a variety of reasons, including but not
limited to: (1) failure to adequately plead any statements were
false; (2) failure to adequately plead facts to show scienter; (3)
failure to properly plead control; and (4) the Plaintiffs' claims
are time-barred based on the statute of repose and the statute of
limitations.
After reviewing the current complaint, the motions to dismiss, the
response, the replies, and the sur-reply using the guiding
principles for the PSLRA, the Judge finds that the Plaintiffs have
stated plausible claims for purposes of defeating a Rule 12(b)(6)
motion to dismiss.
For the foregoing reasons, Judge Mazzant granted in part and denied
in part (i) the Executive Defendants' Motion to Dismiss, (ii) the
Underwriter Defendants' Motion to Dismiss the Consolidated Class
Action Complaint, and (iii) the Director Defendants' Motion to
Dismiss the Consolidated Class Action Complaint. He granted the
motions as to the Named Plaintiffs' Section 11 and 12(a)(2) claims
in the IPO and May 2015 Offering. Otherwise, the motions are
denied.
Further, the Judge denied Sterling's Motion to Dismiss the Class
Action Complaint, and denied as moot the Defendants' Motion for
Oral Argument on Motions to Dismiss. The Named Plaintiffs shall
have 14 days from entry of the Order to submit an amended complaint
in compliance with the Order.
A full-text copy of the Court's Sept. 12, 2018 Memorandum Opinion
and Order is available at https://is.gd/8374jR from Leagle.com.
Miami Firefighters' Relief and Pension Fund, Plaintiff, represented
by Clyde Moody Siebman -- clydesiebman@siebman.com -- Siebman
Forrest Burg & Smith LLP.
Laborers' Local 235 Benefit Funds, Consol Plaintiff, represented by
Shorty Craig Barrett, Shorty Barrett Attorney At Law.
Winston Kim, Consol Plaintiff, represented by Jacob A. Goldberg --
jgoldberg@rosenlegal.com -- The Rosen Law Firm, PA, pro hac vice,
Keith Robert Lorenze -- klorenze@rosenlegal.com -- The Rosen Law
Firm, PA, Andy Tindel -- atindel@andytindel.com -- Mann, Tindel &
Thompson - Attorneys at Law, Laurence Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm, PA, pro hac vice &
Phillip Kim -- pkim@rosenlegal.com -- The Rosen Law Firm, PA, pro
hac vice.
Sascha Troll, Consol Plaintiff, represented by Willie Charles
Briscoe -- cwbriscoe@thebriscoelawfirm.com -- The Briscoe Law
Firm.
Li-Kuan Chen, Consol Plaintiff, pro se.
Yvonne Chen, Consol Plaintiff, pro se.
Victor Sardar, Consol Plaintiff, pro se.
Michael Frick, Consol Plaintiff, pro se.
Adeptus Health Inc., Defendant, represented by Xenia Nicole
Figueroa -- nfigueroa@mwe.com -- McDermott Will & Emery LLP.
Thomas S. Hall & Timothy L. Fielding, Defendants, represented by
Jill Rickershauser Carvalho, King & Spalding LLP, Michael John
Biles -- mbiles@kslaw.com -- King & Spalding LLP, Paul Richard
Bessette -- pbessette@kslaw.com -- King & Spalding LLP, Srimath
Saliya Subasinghe -- ssubasinghe@kslaw.com -- King & Spalding LLP &
Tyler Wayne Highful -- thighful@kslaw.com -- King & Spalding LLP.
Richard Covert, Daniel W. Rosenberg, Gregory W. Scott, Ronald L.
Taylor, Jeffery S. Vender, Steven V. Napolitano & Stephen M.
Mengert, Defendants, represented by David Dykeman Sterling --
david.sterling@bakerbotts.com -- Baker Botts LLP, Amy Heard --
amy.heard@bakerbotts.com -- Baker Botts LLP, Jessica B. Pulliam --
jessica.pulliam@bakerbotts.com -- Baker Botts LLP, John Benjamin
Lawrence -- john.lawrence@bakerbotts.com -- Baker Botts LLP & Mysha
Webster Lubke -- mysha.lubke@bakerbotts.com -- Baker Botts LLP.
Sterling Partners, Defendant, represented by Charles Rodney Acker,
Norton Rose Fulbright US LLP, Anthony C. Piccirill , Simpson
Thacher & Bartlett, George S. Wang, Simpson Thacher & Bartlett,
James Vincent Leito, IV, Fulbright & Jaworski LLP & Susannah S.
Geltman, Simpson Thacher & Bartlett.
Goldman, Sachs & Co. & Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Defendants, represented by Adam Selim Hakki, Shearman
& Sterling LLP, Jeffrey Jason Resetarits, Shearman & Sterling LLP,
Richard Thaddeus Behrens, Haynes & Boone, LLP, Adam J. Goldstein,
Shearman & Sterling LLP & Daniel Howard Gold, Haynes & Boone, LLP.
Graham B Cherrington, Defendant, represented by Michael John Biles,
King & Spalding LLP & Paul Richard Bessette, King & Spalding LLP.
ALL WEB LEADS: Fails to Pay Overtime Wages, Lemieux Claims
----------------------------------------------------------
PETER LEMIEUX, Individually and on Behalf of All Others Similarly
Situated v. ALL WEB LEADS, INC., Case No. 1:18-cv-00846-LY (W.D.
Tex., October 5, 2018), arises from the Defendant's alleged
violation of the Fair Labor Standards Act by failing to pay the
Plaintiff and others lawful overtime compensation for hours worked
in excess of 40 hours per week.
All Web Leads, Inc., is a foreign for-profit corporation,
registered to do business in the state of Texas, and with a
corporate office in Austin, Texas.
The Company provides customer acquisition marketing focused on the
U.S. insurance industry.[BN]
The Plaintiff is represented by:
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: josh@sanfordlawfirm.com
ALLSTATE INSURANCE: Sayles Suit Brought Before Penn. Sup. Ct.
-------------------------------------------------------------
The civil class action lawsuit captioned Samantha Sayles,
idividually and on behalf of all others similarly situated,
Appellee v. Allstate Insurance Company, Appellant, Case No.
58-MAP-2018 was brought before the Supreme Court of Pennsylvania on
Oct. 15, 2018.
Allstate Insurance Company provides personal lines property and
casualty products. The company offers home security, business,
supplemental health, long-term care, boat, flood, identity theft
expenses, and motor home insurance products.[BN]
The Appellee is represented by:
Kannebecker, Charles, Esq.
Law Office of Charles Kannebecker
The Law Office Of Charles Kannebecker LLC
104 W High St
Milford, PA 18337-1618
Phone: (570) 296-6471
The Appellant is represented by:
David J. D'Aloia, Esq.
SAIBER LLC
18 Columbia Turnpike, Suite 200
Florham Park, NJ 07932
Phone: (973) 622-3333
- and -
Michael J. Grohs, Esq.
SAIBER LLC
18 Columbia Turnpike, Suite 200
Florham Park, NJ 07932
Phone: (973) 622-3333
- and -
Marc E. Wolin, Esq.
SAIBER LLC
18 Columbia Turnpike, Suite 200
Florham Park, NJ 07932
Phone: (973) 622-3333
ALLTRAN FINANCIAL: Violates FDCPA, Sprei Suit Asserts
-----------------------------------------------------
A class action lawsuit has been filed against Alltran Financial,
LP. The case is styled as Esther Sprei on behalf of herself and all
others similarly situated, Plaintiff v. Alltran Financial, LP,
Defendant, Case No. 1:18-cv-05818 (E.D. N.Y., Oct. 17, 2018).
The Plaintiffs filed the case under the Fair Debt Collection
Practices Act.
Alltran Financial, LP specializes in revenue cycle, accounts
receivable, and contact center solutions within healthcare,
financial services, higher education, and government industries in
the Unites States.[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
ALNYLAM PHARMA: Bronstein Gewirtz Files Securities Class Action
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notified investors that a class
action lawsuit has been filed against Alnylam Pharmaceuticals, Inc.
("Alnylam" or the "Company") (NASDAQ :ALNY ) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Alnylam securities between February 15, 2018 through
September 12, 2018, both dates inclusive (the "Class Period"). Such
investors are encouraged to join this case by visiting the firm's
site: http://www.bgandg.com/alny.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements and/or failed to
disclose that: (1) Alnylam overstated the efficacy and safety of
its Onpattro (patisiran) lipid complex injection; and (2) as a
result, Alnylam's public statements were materially false and
misleading at all relevant times.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
http://www.bgandg.com/alny.If you suffered a loss in Alnylam you
have until November 26, 2018 to request that the Court appoint you
as lead plaintiff. Your ability to share in any recovery doesn't
require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein, Esq.
Yael Hurwitz, Esq.
Telephone: 212-697-6484
Email: peretz@bgandg.com [GN]
AMERICAN SECURITY: Fla. Homeowners' Insurance Class Action Tossed
-----------------------------------------------------------------
Jim Saunders, writing for Daily Business Review, reports that a
divided federal appeals court rejected class-action lawsuits filed
by Florida homeowners who said they were charged too much for
property insurance after leaving it to mortgage companies to buy
coverage.
The ruling by a three-judge panel of the U.S. Court of Appeals for
the Eleventh Circuit dealt with what is known as "force-placed
insurance," which occurs when people with mortgages do not buy
property-insurance coverage. Lenders then buy coverage and pass
along the costs to the borrowers.
Four Florida residents and a Pennsylvania resident filed
class-action lawsuits in 2015 against two mortgage-servicing
companies and American Security Insurance Co., alleging a scheme
that led to inflated charges for force-placed insurance. At least
in part, they alleged that Specialized Loan Servicing LLC and
Caliber Home Loans Inc. received rebates from American Security,
the force-placed insurer, but didn't pass along those savings to
the borrowers, according to the Sept. 24 ruling.
The lawsuits, which became consolidated, included a series of
allegations, including breach of contract, racketeering, violation
of the Federal Truth in Lending Act and violation of the Florida
Deceptive and Unfair Trade Practices Act.
But the appeals court, in a 28-page majority opinion, upheld
decisions by a U.S. district judge in South Florida to dismiss the
cases. The opinion centered on state regulators approving the rates
charged by American Security and a legal concept, known as the
filed-rate doctrine, that seeks to keep courts out of rate-making
decisions.
"The plain language of the complaints … shows that the plaintiffs
are challenging the reasonableness of ASIC's [American Security's]
premiums; and since these premiums are based upon rates filed with
state regulators, plaintiffs are directly attacking those rates as
being unreasonable as well. . . . Because the plaintiffs should be
understood as meaning what they say, we find that they have
challenged ASIC's filed rate. As such, there can be no doubt that
their causes of action are barred by the filed-rate doctrine," said
the majority opinion, written by Judge Danny J. Boggs and joined by
Judge Frank Hull.
But Judge Adalberto Jordan wrote a 36-page dissent that said the
federal appeals court should send the issue to the Florida Supreme
Court and the Pennsylvania Supreme Court for guidance about how the
states view the filed-rate doctrine. He also took issue with the
majority's interpretation of the facts in the cases.
"ASIC and the lenders argue that the filed rate doctrine bars the
homeowners' claims because they amount to generalized grievances
that ASIC's insurance rates are unreasonably high, and seek only to
force the defendants to sell [in ASIC's case] or bill for [in the
lenders' case] insurance at lower rates," Jordan wrote. "But that
argument misreads the homeowners' claims. The homeowners assert
that, regardless of the insurance rate ASIC charged, the lenders
are contractually obligated to charge only the amount of insurance
they actually paid. By engaging in side agreements with ASIC for
'commissions,' 'reinsurance,' and other kickbacks -- transactions
that are, of course, unregulated -- the lenders found a way to
discount their insurance costs. Given that the mortgage contracts
between the homeowners and the lenders required the lenders to
charge the homeowners for only 'the cost' of insurance, the lenders
breached those contracts by demanding more than the discounted cost
they paid ASIC." [GN]
ANDREWS & LAWRENCE: Faces Cisneros Suit in Maryland Under FDCPA
---------------------------------------------------------------
Andrews & Lawrence Professional Services, LLC is facing a class
action lawsuit under the Fair Debt Collection Practices Act.
The case is styled as Cumanda Cisneros, Maria Santizo on their own
behalf and on behalf of all others similarly situated, Plaintiffs
v. Andrews & Lawrence Professional Services, LLC, Torin K. Andrews,
Kary B. Lawrence, Goshen Run Homeowners Association Inc., Council
of Unit Owners of Stonehedge Condominium Inc., Defendants, Case No.
8:18-cv-03236-PWG (D. Md., Oct. 17, 2018).
Andrews & Lawrence Professional Services, LLC is a law firm in
Ijamsville, MD. It is located at 9639 Doctor Perry Road,
Ijamsville, MD 21754.[BN]
The Plaintiffs are represented by:
Alexa Elena Bertinelli, Esq.
Civil Justice, Inc.
520 W, Fayette St., Suite 410
Baltimore, MD 21201
Phone: (410) 706-5650
Fax: (410) 706-3196
Email: abertinelli@civiljusticenetwork.org
- and -
Ashley A Wetzel, Esq.
Gordon, Wolf & Carney Chtd.
100 W Pennsylvania Ave.
Towson, MD 21204
Phone: (410) 825-2300
Email: awetzel@GWCfirm.com
- and -
Benjamin Howard Carney, Esq.
Gordon, Wolf & Carney, Chtd
100 W Pennsylvania Ave Ste 100
Towson, MD 21204
Phone: (410) 825-2300
Fax: (410) 825-0066
Email: bcarney@GWCfirm.com
- and -
Richard S Gordon, Esq.
Gordon, Wolf & Carney, Chtd
100 W Pennsylvania Ave Ste 100
Towson, MD 21204
Phone: (410) 825-2300
Fax: (410) 825-0066
Email: rgordon@GWCfirm.com
The Defendants are represented by:
Kary Beth Lawrence, Esq.
Andrews & Lawrence Professional Services LLC
9639 Doctor Perry Road, Ste 208 South
Ijamsville, MD 21754
Phone: (301) 874-0255
Fax: (301) 874-2229
Email: karybeth@verizon.net
- and -
Timothy Guy Smith, Esq.
Timothy Guy Smith PC
2480 Route 97 Ste Seven
Glenwood, MD 21738
Phone: (410) 489-2314
Fax: (410) 489-2315
Email: tsmith5021@juno.com
APPLIED BUSINESS: Faces Adams FDCPA Suit in Virginia
----------------------------------------------------
A class action lawsuit pursuant to the Fair Debt Collection
Practices Act has been filed against Applied Business Services.
The case is styled as Stephanie Adams, individually and on behalf
of all others similarly situated, Plaintiff v. Applied Business
Services, Defendant, Case No. 2:18-cv-00559-MSD-RJK (E.D. Va., Oct.
18, 2018).
Applied Business Services is a debt collection agency located in
North Carolina.[BN]
The Plaintiff is represented by:
Romy Lynn Radin, Esq.
Radin Law, PLC
2200 Colonial Ave., Suite 6
Norfolk, VA 23517
Phone: (757) 623-1216
Fax: (757) 624-1718
Email: radinlaw@hotmail.com
ARKANSAS TOTAL: Hatch Suit Alleges FLSA and AMWA Violations
-----------------------------------------------------------
Taquilla Hatch, individually and on behalf of all others similarly
situated v. Arkansas Total Care, Inc., Centene Corporation and
Centene Management Company, LLC, Case No. 4:18-cv-00580 (E.D. Ark.,
August 27, 2018), is brought against the Defendants for violations
of the Fair Labor Standards Act and the Arkansas Minimum Wage Act.
The Plaintiff is a resident of Pulaski County. The Plaintiff worked
for the Defendant as a Care Coordinator.
The Defendants provide health care services relating to individuals
with intellectual and developmental delays and behavioral health
issues. [BN]
The Plaintiff is represented by:
Chris Burks, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AK 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
E-mail: chris@sanfordlawfirm.com
josh@sanfordlawfirm.com
ARTEMIDE INC: Figueroa Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Artemide Inc. under
the Americans with Disabilities Act.
The case is styled as Jose Figueroa on behalf of himself and all
others similarly situated, Plaintiff v. Artemide Inc., Defendant,
Case No. 1:18-cv-09539 (S.D. N.Y., Oct. 17, 2018).
Artemide Inc. designs, manufactures, and retails lighting products
for residential and commercial applications. The company offers
table, floor, wall, wall ADA, ceiling, suspended, and architectural
recessed lights; track and outdoor lighting products; linear
systems; and replacement parts. It sells products through
Artemidestore.com, as well as through a network of dealers in the
United States. The company was founded in 1980 and is based in
Farmingdale, 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
BRADLEY COUNTY, TN: Ex-Inmate Sues Over Medical Care at Jail
------------------------------------------------------------
Autmn Hughes, writing for Cleveland Daily Banner, reports that a
former inmate of the Bradley County Jail has filed a class action
lawsuit against Bradley County, former Sheriff Eric Watson and
three other Bradley County Sheriff's Office employees. The
complaint centers on medical care offered to inmates at the jail,
but also includes claims related to prisoner deaths, jail
overcrowding, failure of jail inspections and funding for medical
care, among others.
The lawsuit was filed on Sept. 18 in Chattanooga's U.S. District
Court on behalf of Darrell Eden "and all others similarly
situated." The plaintiff and members of the putative class "are
current and former inmates or pretrial detainees of the Bradley
County Justice Center, who were or could be denied constitutionally
adequate medical care by the BCSO specifically, and Bradley County
more generally."
The defendants in the suit are Bradley County, former Sheriff Eric
Watson, BCSO Support Services Division Capt. Gabe Thomas, an
unidentified male BSCO officer and an unidentified BCSO female
officer. Watson, Thomas, "John Doe" and "Jane Doe" are all named in
both their official and individual capacities.
According to the legal filing, Eden is pursuing litigation "to
enforce his rights -- and those of the putative class (current and
former inmates or pretrial detainees of the Bradley County Justice
Center) . . . . -- under the Eighth and Fourteenth Amendments to
the United States Constitution. . . . " for gross negligence,
ordinary negligence (on various bases) and punitive damages.
The legal filing claims in recent years medical care has often "(1)
simply not been made available to inmates at all, and (2) when
offered, been so patently deficient as to violate the Eighth and
Fourteenth Amendments to the United States Constitution." In
addition, the legal filing claims "BCSO officials have routinely
disregarded known and unjustifiable risks of serious harm, both in
the medical context and otherwise" to inmates who "routinely
endured significant -- even life-threatening -- injuries while
confined in the jail or in the custody of BCSO, some of which
resulted in further injury or death."
Calling medical care offered to inmates at the jail as "woefully
inadequate," the legal filing noted "numerous prisoner deaths and
dozens of lawsuits, many of which have resulted in settlements;"
the "repeated failure of state jail certification inspections" for
reasons including overcrowding and the provision of medical care;
and county leaders, including the county mayor and Bradley County
Commission, failing "to take corrective action" to address
deficiencies and permitted the deficiencies to continue.
In the legal filing, Eden is listed as a Chattanooga resident who
is a former pretrial detainee booked into the jail on or about
Sept. 20, 2017, on a charge of driving under the influence, in
connection with a car accident. The charge was subsequently
dismissed. The lawsuit claims Eden "was unconstitutionally denied
medical care at the Jail. . . . "
Eden allegedly has a "significant medical/surgical history and a
number of current serious health problems . . . . (that) are very
challenging for Mr. Eden and make many activities of daily living
difficult. Despite his impairments, Mr. Eden is employed full-time
in the health-care industry" as an X-ray technologist in
Cleveland.
According to the legal filing, on the evening of Sept. 19, 2017,
Eden "consumed Ambien and a small amount of alcohol because he had
difficulty sleeping." The next morning, after preparing breakfast
for himself and his wife, Eden drove to work at a speed of
approximately 70 mph.
". . . . Mr. Eden fell asleep and hit a concrete wall on White Oak
Mountain on I-75 in Bradley County," the filing stated. In the
crash, he broke a finger on his right hand, his left ankle, and
seven ribs, two of which were displaced fractures; he "also likely
suffered a concussion."
The legal filing states that no one at the jail performed a medical
screening or completed a medical intake form (per BCSO policy) upon
Eden's arriving in booking. "In addition . . . . no BCSO
corrections deputies informed the shift lieutenant of Mr. Eden's
obvious injuries" as required by BCSO policy.
The "John Doe" deputy allegedly told Eden he would be evaluated by
a medical team, but he was not. The "Jane Doe" deputy allegedly
ignored Eden when he asked when a medical team would arrive to
evaluate him.
When Eden's wife was able to bond him out of jail, she drove him to
Erlanger East Hospital. "At that point, he was coughing up blood
and was admitted immediately," the legal filing stated. He was
later transferred to Baroness Erlanger Emergency Department where
he was diagnosed with bilateral rib fractured and left ankle
fracture, and was administered morphine. Eden was later diagnosed
with a fractured finger. After being released from Erlanger, Eden
was treated at Health South Rehab for 10-14 days.
No dollar amount was listed in the legal filing, but relief in the
form of "an award to each plaintiff class member of compensatory
damages in an amount to be proved at trial," as well as punitive
damages, attorney's fees, and other costs, including "an award to
plaintiff and Inmate Class members of all such further relief as
the Court may deem just and proper."
Bradley County Attorney Crystal Freiberg, Esq. --
cfreiberg@bradleyco.net -- contacted by phone by the Cleveland
Daily Banner on September 21 afternoon, said she could not comment
on the matter.
"I have not seen it and have not received a copy of it in any way,"
Freiberg said of the lawsuit.
Reiterating she could not comment on the filing, Freiberg could not
confirm if this is the first class action lawsuit filed against
Bradley County, the former sheriff, or BCSO.[GN]
BREAKTHROUGH TOWING: Faces Class Action Over Predatory Practices
----------------------------------------------------------------
Violet Ikonomova, writing for Detroit MetroTimes, reports that a
Detroit towing company that has come under fire for its aggressive
tactics and $400-plus cash-only towing fees is now facing a class
action lawsuit that alleges it routinely engages in "illegal,
predatory, and rogue practices."
The suit filed on Sept. 21 by attorneys with the Truth2Power Civil
Justice Fund alleges that Breakthrough Towing violated state towing
laws by hauling vehicles from private lots without proper
permission, refusing to release vehicles to owners who showed up
before their vehicle was towed, and failing to notify police before
removing vehicles. The alleged violations occurred at a range of
locations in Detroit and Hamtramck including Midtown Liquor & Deli
on Woodward and the CVS on Holbrook.
Breakthrough Towing was recently the subject of a viral YouTube
video that purported to show the company trying to tow McDonald's
customers legally parked outside the restaurant's location on
Woodward in Midtown.
The allegations detailed in the suit plus a handful of additional
horror stories shared by Breakthrough victims with Metro Times
together paint a picture of an operation so aggressive that it
easily catches people parked legally, taking their cars regardless
of circumstance. As one of the plaintiffs in the case says she was
told by a driver -- "once he was dispatched, no matter if the car
was hooked up or not, he had to take it." Once caught, vehicle
owners can be robbed of a week's paycheck almost instantaneously,
forced to pay cash for tows starting around $400 with additional
fees tacked on for inevitabilities, like having to retrieve their
vehicle registration from inside the car. The company appears to
rely on "spotters" for alerts when a car has been parked too long
(it denies this, but we've seen people stationed for hours at a
time outside at least one of the lots from which it tows) and keeps
its trucks idling throughout Midtown, in close proximity to several
of the businesses it services.
Breakthrough Towing owner Michael Dickerson declined to comment for
this report and said he would forward our request for comment to
his lawyer.
Since publishing our initial story on the company's presence at
McDonald's, we've heard from a number of people who say the company
tried to tow them from outside of businesses where they were
customers, damaged their vehicles, and cursed at or threatened
them.
Timothy Bates and Tonika Williams each say they were inside the
McDonald's on Woodward for less than 20 minutes when their cars
were hooked up to a Breakthrough truck to be hauled away. Williams,
whose run-in with the towing company occurred two years ago, had
luck in getting the truck driver to release her car when she
explained she was a customer. Bates, whose car was taken by the
company in August, did not.
The 28-year-old says his car was scooped up in the time it took him
to use the restaurant's bathroom and pick up an order for his meal
delivery job with the company DoorDash.
"I said [to the driver], 'Why are you towing my car?' And he said,
'Because you wasn't in there,'" says Mr. Bates.
Mr. Bates says he'd just emerged from the restaurant carrying his
red DoorDash delivery bag with the McDonald's order inside. Still,
the driver pulled off.
"He just didn't seem to care," Bates says. "It seemed like it's all
about money. They don't care about what people go through."
Mr. Bates says he was forced to fork over $420 cash to retrieve his
vehicle -- a week's worth of earnings.
Others, like Leng Vang and Brad LaPlante, say their cars were
damaged by Breakthrough, forcing them to spend prolonged periods
without a vehicle or hundreds of dollars in repairs on top of
already hefty tow fees.
Mr. Vang's car was discovered damaged by an Air Force sergeant
based outside D.C. who says he was inspired by the viral video
about Breakthrough to stake out the McDonald's on a recent trip to
Detroit. Juan Rodriguez says he only had to spend a few minutes
outside the restaurant before one of the company's trucks whizzed
by him and turned onto Willis.
"Sure enough . . . that tow truck just went out past me and then I
saw him start to tow a red car and I just decided to stay there,"
says Mr. Rodriguez. "He didn't even properly secure the vehicle, he
wanted to get it out in such a rush."
In video of the incident posted by Rodriguez to Reddit, a
Breakthrough truck is seen lifting and pulling away a red Honda Fit
to reveal a large puddle underneath that appears to be leaked oil.
Rodriguez says he watched Breakthrough drop the car shortly before
he started recording.
Thanks to Rodriguez and a Reddit sleuth who linked an address to
the license plate on the car, Mr. Vang, the owner of the vehicle,
is now listed as a lead plaintiff in the lawsuit against
Breakthrough. Lawyers allege the company damaged Mr. Vang's oil
repository, took it to get fixed without his permission, and left
him without transportation for more than a week. They say
Mr. Vang was not made to pay for the repair or tow.
Mr. LaPlante, meanwhile, tells us his car came back with a snapped
brake line after it was towed from the McDonald's lot in December
while he attended a nearby concert. It was a costly night out —
on top of the $420 cash he says he had to pay to get his car back,
he dropped an additional $200 on the repair.
An employee whose office overlooks both the McDonald's and the
Midtown liquor store from which Mr. Vang was towed says he has seen
Breakthrough trucks drop vehicles "recklessly, from two feet or
higher" on multiple occasions. Ironically, the company's business
cards say "damage-free towing."
But the complaints we've heard about Breakthrough extend beyond
possibly illegal and reckless tows. Employees with the company have
also been accused of intimidation and harassment.
In a police report obtained by the Truth2Power Civil Justice Fund
through FOIA and reviewed by Metro Times, a Breakthrough tow truck
driver is alleged to have threatened with violence a Hamtramck
business owner who confronted the driver for towing customers'
cars. "I'm going to fucking kill you, you are going to disappear
because they call me killer," the driver was reported to have
said.
Another woman came forward to share an experience with Breakthrough
that she says still "startles" her "to this day." Five years ago,
Rachael Hone was towed by Breakthrough from the liquor store on
Forest and Third avenues within 45 minutes of parking. When she
went to the tow yard to retrieve her vehicle, she says a
Breakthrough employee raised the fee from $300 to $350 because it
took her more than 15 minutes to return from the ATM. Hone put up a
fight, and says the employee then raised the price to $400, saying
that's what she gets for her "bad attitude." She says the employee
then taunted her by lifting her car down from the tow truck, and
back on, saying "I control your car so you have to do what I say."
When she paid up, she says the Breakthrough employee offered these
parting words: "Get fucking lost, you little bitch."
In September, a Breakthrough tow truck driver told a Metro Times
reporter that he would "smack" the cell phone out of his hands.
Legality?
Lawyers allege Breakthrough has violated numerous Michigan towing
laws by operating without proper approvals from private property
owners, refusing to release vehicles to owners who show up before
their car is towed, taking cars from places that lack adequate
signage, and failing to inform police before a tow takes place.
At at least two of the locations listed in the suit — Midtown
Liquor & Deli and the CVS on Holbrook — Breakthrough may not have
had license to tow. An employee with the liquor store tells us
Breakthrough had permission to tow only from the spaces along the
building, not the portion of the lot that stretches past the store
to the front of a house on Willis where Vang was parked. The
employee, Louie, who would only provide his first name, says the
store does not own that land.
Meanwhile, at CVS, a store manager this spring told the Hamtramck
Review that he had not authorized Breakthrough to tow. While Mr.
Dickerson, the company's owner, did provide Metro Times with a
photo of one page of a purported contract, it was dated 2015 and
signed by only a "Mike Kyle -- manager," when the store manager's
full name is reportedly Mike Raynor. When Mr. Raynor allowed the
towing signs at CVS to be taken down, Breakthrough did not put up a
fight.
(Adding to the strangeness of this particular situation,
Mr. Dickerson says the CVS manager would call him at the end of
each evening shift to say the company could take any vehicles from
the lot except his and those belonging to other employees. When
asked what incentive Mr. Raynor might have had to do that, Mr.
Dickerson said he didn't know. He did take issue with us posting
the rate that was listed in the contract -- $370 per tow. Bumbo's
patrons towed from the lot were made to pay between $420 and $500
to retrieve their vehicles, lawyers say. We reached out to Mr.
Raynor, but he abruptly put us on hold when we identified ourselves
and explained why we were calling. He did not return a request for
comment left with a coworker.)
In cases in which a vehicle owner shows up for their vehicle before
it's towed, Michigan law states "the vehicle shall be disconnected
from the tow truck, and the owner or other person who is legally
entitled to possess the vehicle may take possession of the vehicle
and remove it without interference upon the payment of the
reasonable service fee." Olivia Robertson, a plaintiff in the
lawsuit, alleges her car was taken even after she showed up to
retrieve it, and that the Breakthrough driver told her that once
he's dispatched he has to return with a vehicle.
Lawyers also allege that when Robertson was towed from the CVS in
April, there was only one towing warning notice in the lot, and it
was tucked behind a dumpster. In Mr. Veng's case, there was no sign
on the gate in front of which he parked. Michigan law says towing
warning notices must be "prominently displayed at each point of
entry for vehicular access" to the property.
State law additionally requires that towing companies contact the
local police department before removing vehicles from private
property. Based on the FOIA we reviewed from the Hamtramck Police
Department, Breakthrough failed to do this in at least one case,
prompting a man who'd been towed to report his car stolen.
Lastly -- though this is not mentioned in the suit -- the apparent
cash-only component of Breakthrough's enterprise raises additional
legal questions.
"They're wreaking havoc not just on the citizens but the business
of metro Detroit," says Tony Paris, an attorney on the case. "It's
predatory, it's illegal, and they can't be rogue -- they need to
follow basic laws."
Mr. Dickerson declined to comment on the allegations, but did say
of Metro Times, "You guys are like bad news, you just report bad
news when you don't know all the facts." [GN]
BURY THE HATCHET: Bailey Suit Alleges TCPA Violation
-----------------------------------------------------
Keely Bailey, on her own behalf and on behalf of other similarly
situated persons v. Bury the Hatchet KC, LLC et al., Case No.
2:18-cv-02441 (D. Kans., August 24, 2018), is brought against the
Defendants for violation of Telephone Consumer Protection Act.
The Defendants market themselves and their services through text
message and advertisements sent in violation of the Telephone
Consumer Protection Act, says the complaint.
The Plaintiff is a resident of Johnson County, Kansas.
The Defendant Bury the Hatchet KC is a premier recreational axe
throwing facility in Overland Park, Kansas. It promotes itself as a
great location for corporate outings, team building, or a night out
with friends and family. Defendant has a 7,200 sq/ft axe throwing
facility in Overland Park, Kansas. [BN]
The Plaintiff is represented by:
John J. Ziegelmeyer III, Esq.
HKM ATTORNEYS LLP
1501 Westport Road
Kansas City, MO 64111
Tel: (816) 875-3332
E-mail: jziegelmeyer@hkm.com
CAR WASH EXPRESS: Munoz Files Labor Suit in New York
----------------------------------------------------
A class action lawsuit has been filed against A Car Wash Express
Inc. The case is styled as Felipe de Jesus Valenzuela Munoz
individually and on behalf of others similarly situated, Plaintiff
v. Car Wash Express Inc. doing business as: Carwash Express also
known as: G & E Auto Express, G & E Auto Repair I LLC doing
business as: Carwash Express also known as: G & E Auto Express,
Gustavo A Mueses also known as: Custano, Segundo Doe, Defendants,
Case No. 1:18-cv-05796 (E.D. N.Y., Oct. 17, 2018).
The Plaintiffs filed the case under the Fair Labor Standards Act.
Car Wash Express, Inc. offers auto repair, car wash, and wheel
alignments, in Brooklyn, Queens, Manhattan.[BN]
The Plaintiff appears pro se.
CHARTER COMMUNICATIONS: Moorman Seeks to Recover Wages Under FLSA
-----------------------------------------------------------------
DARYL L. MOORMAN, On his own behalf and on behalf of all others
similarly situated v. CHARTER COMMUNICATIONS, INC., CHARTER
COMMUNICATIONS, LLC, SPECTRUM MANAGEMENT HOLDING COMPANY, LLC, TWC
ADMINISTRATION, LLC, Case No. 3:18-cv-00820 (W.D. Wisc., October 4,
2018), is a collective action for alleged unpaid wages and overtime
brought pursuant to the Fair Labor Standards Act.
The Defendants are foreign for profit corporations, registered,
organized and formed in the state of Delaware that conducted
business in the Western District of Wisconsin, as well as multiple
other locations throughout the United States.
The Defendants offer services to consumers and businesses under
different business (brand) names, including Spectrum. The
Defendants provide services to more than 26 million residential and
business customers in at least 41 states, including Wisconsin, and
provides telecommunications services, including telephone, cable,
and internet access services.[BN]
The Plaintiff is represented by:
Michael J. Modl, Esq.
Heath P. Straka, Esq.
AXLEY BRYNELSON, LLP
2 E. Mifflin Street, Suite 200
Madison, WI 53703
Telephone: (608) 257-5661
Facsimile: (608) 257-5444
E-mail: mmodl@axley.com
hstraka@axley.com
- and -
Robert J. Gingras, Esq.
GINGRAS, CATES & WACHS
8150 Excelsior Drive
Madison, WI 53717
Telephone: (608) 833-2632
Facsimile: (608) 833-2874
E-mail: gingras@gcwlawyers.com
CHEGG INC: Glancy Prongay Files Securities Class Action
-------------------------------------------------------
National law firm Glancy Prongay & Murray LLP has filed a class
action lawsuit in the United States District Court for the Northern
District of California on behalf of persons and/or entities that
acquired Chegg Inc. ("Chegg" or the "Company") (NYSE: CHGG)
securities between July 30, 2018 and September 25, 2018, inclusive
(the "Class Period"). Plaintiff pursues claims against the
Defendants, under the Securities Exchange Act of 1934.
Chegg investors are hereby notified that they have 60 days from the
date of this notice to move the Court to serve as lead plaintiff in
this action.
If you are a shareholder who suffered a loss, click here to
participate.
On September 25, 2018, Chegg reported that it had "learned that on
or around April 29, 2018, an unauthorized party gained access to a
Company database that hosts user data for chegg.com and certain of
the Company's family of brands such as EasyBib." The Company
reported that approximately 40 million users' data, including
username, email address, shipping address, and hashed password,
could have been obtained and that an investigation into the
incident was ongoing. On this news, shares of Chegg fell over 12%
to close at $28.42 on September 26, 2018, thereby injuring
investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company lacked adequate security measures
to protect users' data; (2) that the Company lacked the internal
controls and procedures to detect unauthorized access to its
systems and to its data; (3) that as a result, the Company would
incur additional expenses and litigation risks; and (4) that, as a
result of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially false
and/or misleading and/or lacked a reasonable basis.
Follow us for updates on Twitter: twitter.com/GPM_LLP.
If you purchased Chegg securities during the Class Period, you may
move the Court no later than 60 days from the date of this notice
to ask the Court to appoint you as lead plaintiff. To be a member
of the Class you need not take any action at this time; you may
retain counsel of your choice or take no action and remain an
absent member of the Class. If you inquire by email please include
your mailing address, telephone number and number of shares
purchased.
Lesley Portnoy, Esq.
Glancy Prongay and Murray LLP, Los Angeles
1925 Century Park East, Suite 2100
Los Angeles California 90067
Email: lportnoy@glancylaw.com [GN]
CHICAGO, IL: Faces Unjust Enrichment Suit Over Red Light Camera
---------------------------------------------------------------
Scott Holland, writing for Cook County Record, reports that despite
a major settlement earlier this year, the city of Chicago is facing
further legal action over the validity of its red light camera
program.
Four named plaintiffs filed an unjust enrichment complaint Sept. 17
in Cook County Circuit Court, saying the citations issued under the
red light camera program don't comply with state law or city code.
They want the court to prevent the city from issuing further
citations stemming from camera use and recover all fines and
penalties issued through more than 2 million violation notices in
the preceding five years.
The complaint comes nearly seven months after lawyers representing
a class of nearly 450,000 plaintiffs secured final approval from a
Cook County judge of a settlement with the city, granting what they
said was $58 in relief on average for those who received tickets
under the program from 2010-2015. While the city directly paid $38
million to settle the lawsuit, plaintiffs' lawyers pegged the total
actual value of the settlement at $125 million, once all city
concessions were factored in.
According to the current plaintiffs, all represented by Roth
Fioretti LLC, the violation statements issued to vehicle owners
don't contain all the language required in the state's Red Light
Camera Act. Specifically, the complaint accuses the city of
omitting a statement that the recorded images constitute evidence
of a violation and a warning that failure to pay civil penalties,
complete driving school or contest the ticket are seen as an
admission of guilt and can lead to suspended driving privileges.
In arguing this point, the plaintiffs point out the city's notices
for camera-generated speeding tickets contain the type of language
omitted from the red light tickets, though the Speed Camera Act
contains the same mandatory provisions as the state red light
camera law. The plaintiffs also maintain the notices violate
Chicago Municipal Code provisions.
The case resolved through settlement in February was different.
That class action involved more than 1.1 million people fined $100
per violation under the red light camera program, even though they
neither received two notices nor received the proper amount of time
to contest the tickets before late fees and other costs were tacked
on, as required under the city's red light camera ordinance.
One of the named plaintiffs in the current action, Matthew Kennedy,
said he contested the two red light tickets by explaining the
language omitted from the violation notice, and said administrative
law judges in both hearings didn't address or consider his
argument. The other named plaintiffs, Vincent Saisi, Riza Milovic
and Victor Zisman, paid most of their tickets but said they weren't
aware the notices were legally invalid.
"Chicago's red light camera violation notices are coercive and are
paid under duress," according to the complaint, which calls for the
class to include more than 2 million other people who have received
a red light camera ticket dating since Sept. 17, 2013, with
subclasses for those who paid their fines and those who didn't. The
plaintiffs want the court to determine every ticket issued under
the program should be retroactively voided.
In addition to class certification, the plaintiffs want all red
light camera violations from the last five years to be stricken
from all records and databases. They also seek "the expungement of
derogatory credit information from the credit report of any person
with an unpaid or belatedly paid" red light camera ticket, as well
as to be reimbursed for their legal fees. [GN]
COHEN ROBERTS: Faces Harrison FDCPA Suit in Ohio
------------------------------------------------
A class action lawsuit has been filed against Cohen, Roberts &
Associates, LLC. The case is styled as Sam Harrison on behalf of
himself and all others similarly situated, Plaintiff v. Cohen,
Roberts & Associates, LLC, Defendant, Case No. 1:18-cv-02408-JG
(N.D. Ohio, Oct. 17, 2018).
The Plaintiffs filed the case under the Fair Debt Collection
Practices Act.
Cohen Roberts, & Associates collects debts owed to one business
(creditor) by another business or individual. CRA normally becomes
involved with these debts after the creditor has pursued an
in-house course of action without any success. CRA works on a
contingency basis and receive a commission percentage from the
funds collected.[BN]
The Plaintiff is represented by:
Sergei Lemberg, Esq.
Lemberg Law
3rd Floor
43 Danbury Road
Wilton, CT 06897
Phone: (203) 653-2250
Fax: (203) 653-3424
Email: slemberg@lemberglaw.com
COLLECTO INC: Keller-Brittle Suit Alleges FLSA Violation
--------------------------------------------------------
Bethel Keller-Brittle, on behalf of herself and all others
similarly situated v. Collecto, Inc. dba EOS, Case No.
1:18-cv-11836 (D. Mass., August 27, 2018), is brought against the
Defendant for violation of the Fair Labor Standards Act.
The Plaintiff resides in Boston, Massachusetts and worked for the
Defendant as a collector.
The Defendant EOS describes itself as "a professional debt
collection company" and a "premier agency for all stages of
receivables managements." The Defendant is headquartered in
Massachusetts, and has additional operations in at least Illinois,
Kentucky, Texas and California. [BN]
The Plaintiff is represented by:
Josh Gardner, Esq.
Nicholas J. Rosenberg, Esq.
GARDNER & ROSENBERG P.C.
One State Street, Fourth Floor
Boston, MA 02109
Tel: (617) 390-7570
E-mail: josh@gardnerrosenberg.com
CONNECTICUT WATER: Paskowitz Suit Challenges Sale to SJW Group
--------------------------------------------------------------
SUSAN PASKOWITZ, Individually and On Behalf of All Others Similarly
Situated v. CONNECTICUT WATER SERVICE, INC., CAROL P. WALLACE,
DAVID C. BENOIT, RICHARD H. FORDE, MARY ANN HANLEY, HEATHER HUNT,
BRADFORD A. HUNTER, KRISTEN A. JOHNSON, LISA J. THIBDAUE, and ELLEN
C. WOLF, Case No. 3:18-cv-01663 (D. Conn., October 5, 2018), stems
from a proposed transaction pursuant to which the Company will be
acquired by SJW Group ("Parent") and Hydro Sub, Inc. ("Merger
Sub.")
On August 5, 2018, Connecticut Water's Board of Directors caused
the Company to enter into an agreement and plan of merger with SJW.
Pursuant to the terms of the Merger Agreement, if the Proposed
Transaction is completed, Connecticut Water's shareholders will
receive $70 for each share of Connecticut Water common stock they
own. The cash transaction, which has a value of $1.1 billion and
an equity purchase price of $843 million, is expected to be
immediately accretive to SJW Group's earnings per share (EPS) in
2019 (post-close), increasing each year thereafter to high
single-digit percentage EPS accretion in 2021.
The Plaintiff alleges that the Defendants' Proxy Statement filed
with the Securities and Exchange Commission in connection with the
Proposed Transaction, which scheduled a stockholder vote on the
Proposed Transaction for November 16, 2018, omits material
information with respect to the Proposed Transaction, rendering the
Proxy Statement false and misleading. Among other things, the
Plaintiff contends that the Proxy Statement omits material
information regarding the Company's financial projections and the
valuation analyses performed by the Company's financial advisor,
Wells Fargo Securities, LLC, in connection with the Proposed
Transaction.
Connecticut Water is a Connecticut corporation and maintains its
principal executive offices in Clinton, Connecticut. Connecticut
Water was incorporated in 1974, with its largest subsidiary, The
Connecticut Water Company ("CWC"), being organized in 1956. The
Individual Defendants are directors and officers of the Company.
Connecticut Water, together with its subsidiaries, operates as a
regulated water company. The Company operates through three
segments: Water Operations, Real Estate Transactions, and Services
and Rentals.[BN]
The Plaintiff is represented by:
Brian S. Cohen, Esq.
LACHTMAN COHEN P.C.
500 West Putnam Avenue, Suite 400
Greenwich, CT 06830
Telephone: (203) 404-4960
E-mail: bcohen@lcpclaw.com
- and -
Seth D. Rigrodsky, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
E-mail: SDR@rl-legal.com
GMS@rl-legal.com
CORE40: Williams Suit Seeks Damages, Civil Penalties
----------------------------------------------------
A class action lawsuit has been filed against Core40 entities
seeking damages and civil penalties.
The case is styled as Madelaine Douglas, Allison Hall, Nicole Sha
Lin Ong, Alex Reese, Julieanne Tayag, Lisa Thomure, Lisa Tompkins,
Jennifer Williams on behalf of themselves, others similarly
situated, and the General Public, Plaintiffs v. Core40 Castro, LLC,
Core40 Community Center, LLC, Core40 Hays Valley, LLC, Core40 Lower
Pac Heights, LLC, Core40 Marina, LLC, d/b/a Core40, Core40 Nob Hill
LLC, Core40 Soma, LLC, Does 1 to 20, Dean Grafos, Lisa Grafos, WDOM
Enterprises LLV, Defendants, Case No. CGC18570624 (Cal. Super. Ct.,
San Francisco, Oct. 16, 2018).
Based in California, CORE40 offers a fusion of many of the
core-focused fundamentals of traditional Pilates, blended with
circuit training, strength training and cardio, all performed on
revolutionary, state-of-the-art equipment created by fitness guru
Sebastien Lagree known as the "Superformers". CORE40 uses the
renowned Lagree Fitness method, and it is an unparalleled full-body
workout. It strengthens, tightens and tones the entire body quickly
and safely, leaving the body lean, lithe and resistant to the
stresses of everyday life[BN]
The Plaintiff is represented by:
Leiann Joan Laiks, Esq.
CSK AUTO: Court Amends Definition of Melgar Settlement Class
------------------------------------------------------------
In the case, OSMIN MELGAR, individually and on behalf of all others
similarly situated, Plaintiff, v. CSK AUTO, INC., an Arizona
Corporation, and DOES 1-100, Defendants, Case No. 3:13-CV-03769
(EMC) (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court
for the Northern District of California granted the Parties'
Stipulation and Joint Motion to Amend the Order Granting
Preliminary Approval of Class Action Settlement.
On July 12, 2018, the Court entered an Order Granting Preliminary
Approval of Class Action Settlement in the action. In that Order,
the Court set deadlines for the submission of class member
information, mailing of notices and submissions of claims,
opt-outs, and objections, and set a hearing on the Plaintiff's
anticipated motion for final approval on Dec. 20, 2016. Notably,
the Settlement Administrator will be mailing a "reminder" postcard
to the class as soon as possible (but has delayed the initial
mailing of the postcard for a few days pending the Court's review
and ruling on the joint motion).
In the course of administering the class notice and collecting
class member information, the parties have now discovered that a
small group of employees who should have been included in the class
action settlement were inadvertently excluded. Specifically, there
are a small number of current and former team members in California
that continue to use an older job title -- "First Assistant
Manager" -- which was commonly used by O'Reilly's predecessor. The
"First Assistant Manager" position is equivalent to and performs
the same functions as an "Assistant Store Manager," but the
individuals who worked (or are working) in those positions were
inadvertently omitted from the class definition in the parties'
settlement agreement and preliminary approval motion due to the
technical difference in their titles.
Based on O'Reilly's records, the discrepancy will affect a total of
51 people. Twenty-six individuals held the title of "First
Assistant Manager" during the class period and did not receive a
class notice when it was disseminated. Twenty-five additional
"First Assistant Managers" did receive class notice (because they
also worked in another qualifying position during the class
period), but their settlement allocations (based on the length of
time worked in each position) will need to be adjusted to include
the period they worked as a "First Assistant Manager" during the
class period.
The Parties have met and conferred, and agree that the "First
Assistant Manager" position should be included in the settlement
class, as they are equivalent to Assistant Store Managers in all
material ways, but for their unique job titles. As such, the
Parties stipulated, and jointly moved the Court, and Judge Chen
approved, to modify the Order Granting Preliminary Approval of
Class Action Settlement as Follows:
a. The settlement class definition will be amended to include
any current and former employees of O'Reilly who worked in a "First
Assistant Manager" position in California during the settlement
class period;
b. The Settlement Administrator disseminate an amended Class
Notice in the form attached hereto as "Exhibit A" to the 26 new
class members within five days of the entry of the Order, who will
have a 60-day opportunity to make a claim, opt-out, and/or object
to the settlement;
c. The attached Modified Order Granting Preliminary Approval
of Class Action Settlement is approved and will be executed by the
Court. It will be displayed and made available to class members on
the Settlement Administrator's dedicated website no later than two
days after the entry of the Order.
d. The existing members of the settlement class will be
notified of the modification in the reminder postcard that is to be
issued. In addition to standard reminder language about the claims
period, the following language will appear on the "reminder
postcard" that is disseminated to the class: PLEASE NOTE that the
Court entered a Modified Order Granting Preliminary Approval of
Class Action Settlement on _____________, which was modified to
include the employees who worked in a 'First Assistant Manager'
position during the class period, but which remains the same in all
other material respects. A copy of the Modified Order is available
for review on the Settlement Administration website.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/Rxm0Er from Leagle.com.
Osmin Melgar, individually and on behalf of all others similarly
situated & Karo Khatchadoorian, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Michael Malk
-- mm@malklawmm.com -- Michael Malk, ESQ., APC.
CSK Auto, Inc., an Arizona Corporation, Defendant, represented by
James Michael Peterson -- peterson@higgslaw.com -- Higgs Fletcher
and Mack LLP, Edwin M. Boniske -- boniske@higgslaw.com -- Higgs
Fletcher & Mack LLP & Jason Conroy Ross -- jasross@gmail.com --
Higgs Fletcher Mack.
CYBER PIZZA: Jeong Suit Seeks Overtime Wages
--------------------------------------------
Ricardo Jeong, and all others similarly situated v. Cyber Pizza,
Latin Grill, Italian Cusine & Cafe, LLC, and Luis P. Cuna, Case No.
0:18-cv-62018 (S.D. Fla., August 27, 2018), is brought against the
Defendants for violations of overtime wage provisions under the
Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a kitchen employee
and cleaner.
The Defendants operate a restaurant in the Southern District of
Florida. [BN]
The Plaintiff is represented by:
Daniel T. Feld, Esq.
LAW OFFICE OF DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Tel: (954) 361-8383
E-mail: DanielFeld.Esq@gmail.com
- and -
Isaac Mamane, Esq.
MAMANE LAW LLC
10800 Biscayne Blvd., Suite 350A
Miami, FL 33161
Tel: (305) 773 - 6661
E-mail: mamane@gmail.com
DANICECOM LLC: Figueroa Class Suit Asserts ADA Breach
-----------------------------------------------------
A class action lawsuit has been filed against Danicecom LLC under
the Americans with Disabilities Act.
The case is captioned Jose Figueroa on behalf of himself and all
others similarly situated, Plaintiff v. Danicecom LLC doing
business as: Danice Stores, Defendant, Case No. 1:18-cv-09582 (S.D.
N.Y., Oct. 18, 2018).
Danice Stores operates women clothing stores in New York and New
Jersey. It offers tops, bottoms, dresses, outerwear, shoes, and
accessories. The company ships products to customers throughout the
United States. It also sells products online.[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
DIOCESE OF PITTSBURGH: Bishops Support Sex Abuse Victim Fund
------------------------------------------------------------
Daveen Rae Kurutz, writing for The Times, reports that
Pennsylvania's bishops have agreed to support an independent sex
abuse survivor's compensation program but fear that changing the
statutes of limitation to allow victims to file civil or criminal
charges would "bankrupt" the church.
According to a release posted on the website for the Pittsburgh
Catholic Conference late September 21 afternoon, the bishops of
Pennsylvania's diocese say they have committed to create or
participate in a voluntary program that will include a panel of
qualified experts to review individual cases and determine
financial assistance.
In a statement issued on September 21, Bishop David Zubik said the
Pittsburgh Catholic Diocese will cooperate and support any fund set
up by the state Legislature for victims of sexual abuse in the
church.
"As a bishop and as a Christian, I am committed to finding new ways
to offer compassion and support for all victims of child sexual
abuse and to ensure they have a voice," Zubik said in a statement.
"The additional spiritual pain that victims of Catholic priests
have endured is of especially deep concern to me and to the
church."
The decision comes five weeks after a state grand jury report named
more than 300 clergy members from six diocese across Pennsylvania,
including the Pittsburgh diocese, who have allegations of sexual
abuse made against them. Attorney General Josh Shapiro, Esq. --
info@joshshapiro.org -- whose office presented the report, has been
critical of how the church systemically covered up many cases of
abuse.
The grand jury made four recommendations for reforms to prevent
abuse in the future, including eliminating the criminal statute of
limitations for sexually abusing children, which currently allows
victims to come forward until age 50; creating a window so that
older victims may sue for damage, with a recommendation of a
two-year window for civil suits; clarifying penalties for a
continuing failure to report child abuse by changing state law; and
specifying that civil confidentiality agreements do not cover
communications with law enforcement, as previous agreements did.
In his statement, Zubik said that the church forbade nondisclosure
agreements for child victims of sexual abuse in 2002 and that the
Pittsburgh diocese had not enforced earlier agreements.
"It is my fervent hope that the Legislature will create a similar
ban on nondisclosure agreements for all victims of child sexual
abuse so that no one can prevent survivors from telling their
stories," Zubik wrote. "It is likewise essential to empower law
enforcement to respond to all victims, by eliminating criminal
statutes of limitation for child sexual abuse, clarifying the rules
for mandatory reporting and providing stronger penalties for those
who fail to protect children."
In the joint statement, Pennsylvania bishops said they have
"reflected deeply on the ugly record of clergy sexual abuse" in the
state. The group wrote that they believe that the program will
allow victims to present their cases to "experienced, compassionate
experts" in an expedited manner.
The group does not back the idea of a window or change to the
statute of limitations that would "inevitably result in bankruptcy
for the diocese."
"Bankruptcy would cripple the ability of a diocese to provide
compensation and healing for survivors, while vastly reducing or
eliminating social service programs that greatly benefit all
Pennsylvanians by serving some of the most at-risk people in our
communities," the bishops wrote. "We cannot undo the harm that
childhood sexual abuse has caused, but in humility and repentance
we hope the path forward offers a way toward healing for survivors
and their families."
A Pittsburgh-based attorney representing the plaintiffs in a
class-action lawsuit against the diocese said a fund simply isn't
enough. Benjamin Sweet, Esq. -- bsweet@carlsonlynch -- a partner
with Carlson, Lynch, Sweet, Kilpela and Carpenter, advocates for
victims to be able to pursue civil litigation so that those who
abused children are exposed.
"A fund is nothing more than a continuation of the church's
decades-long concealment," Sweet said in a text message on
September 21 evening. "Enough. Only through civil litigation can
the perpetrators and their protectors be brought into the light of
day. That is the only way we can be sure that today's kids are
safe."
A clergy abuse hotline set up by Shapiro has received more than
1,100 calls since the Aug. 14 release of the grand jury
report.[GN]
DPHC Enterprise: Cottman Class of Drivers Conditionally Certified
-----------------------------------------------------------------
In the case, Robert P. Cottman, et al., Plaintiffs, v. David G.
Naskrent, et al., Defendants, Case No. CV-17-02045-PHX-JJT (D.
Ariz.), Judge John J. Tuchi of the U.S. District Court for the
District of Arizona granted in part and denied in part Plaintiffs'
Motion to Proceed Conditionally as a Collective and Class Action.
The Defendants are the owners and managers of Rosati's Pizza
located in Phoenix. The Plaintiffs each worked at Rosati's as a
pizza delivery driver at assorted points in time during periods
spanning October 2012 to December 2012 and from January 2014 to
January 2017.
During the Plaintiffs' time at Rosati's, the Defendants required
drivers to complete deliveries as assigned by Rosati's. They did
not pay its drivers an hourly salary. Instead, each driver
received a standard fee per delivery in addition to any tip paid
out by the customer. The delivery fee started at $2 during each
driver's probationary period and increased to $3 after the
Defendants took the driver off probation. The fee increased once
again in December 2016 to $3.25 per delivery.
After each driver was hired, he or she had to complete training,
which consisted of ride-alongs with senior drivers; however,
Defendants did not compensate new drivers for this time. The
drivers used their own vehicles for deliveries, but were not
reimbursed for mileage, fuel, or other costs incurred when
delivering pizzas. When not delivering pizzas, the Defendants
required that the Plaintiffs work in the restaurant -- without
additional pay -- by answering phones, assisting customers,
cleaning the dining room, and assisting with the preparation of
food.
After completing their deliveries for the day, the delivery drivers
returned to the restaurant to settle their payments for the day
with the store manager or owner. If the cash that the driver
received from customers during their deliveries did not cover the
amount he earned in delivery fees, the manager pulled cash from the
register to pay the difference.
Beginning in 2015, if the amount paid for food ordered through a
third party website was less than that charged directly by
Rosati's, the Defendants deducted the difference from the tip of
the driver delivering the food. They additionally deducted the
cost of an order from the drivers' day-end pay for credit card
orders if the driver failed to take an imprint of the purchaser's
card and if that card was subsequently declined after delivery.
These policies frequently resulted in Rosati's drivers earning less
than federal and state minimum wage. Additionally, the Plaintiffs
typically worked in excess of 40 hours per week without overtime
compensation.
On May 25, 2017, the Plaintiffs filed a Hybrid Collective and Class
Action Complaint in the Maricopa County Superior Court alleging
violations of the Fair Labor Standards Act and minimum wage
provisions of Arizona law. The Defendants subsequently removed to
the Court on June 26, 2017, on the basis of federal question
jurisdiction. The Plaintiffs now move to certify a collective
action under the FLSA and a class action pursuant to Federal Rule
of Civil Procedure 23(b)(3) for their state law claims.
Although the Defendants argue that the policies at Rosati's changed
over the course of the period of the Plaintiffs' allegations, the
Plaintiffs need not show that every opt-in Plaintiff endured an
identical experience at this point in the litigation, but only that
some binding factual nexus exists. Judge Tuchi holds that the
Plaintiffs have done so, and he finds that there is sufficient
evidence in the record to conclude that the Plaintiffs and
potential opt-in Plaintiffs were victims of a single decision,
plan, or policy. Thus, he will certify a collective action
pursuant to Section 216(b) of the FLSA.
The Plaintiffs in the matter filed their Complaint on May 24, 2017.
Because the Plaintiffs allege willful violations by the
Defendants, they may recover only for those FLSA minimum wage or
overtime claims which accrued on or after May 24, 2014.
Accordingly, the Judge will deny the Plaintiff's Motion to the
extent that it seeks to certify a collective action which includes
drivers that were not employed by Rosati's on or after May 24,
2014.
The Plaintiffs do not provide any additional foundation for their
purported knowledge about the employment statistics at Rosati's
during the seven years that no declarant worked there. Thus, the
statements are devoid of any evidentiary value and must be rejected
by the Court. Moreover, they've crafted the putative class without
considering, or even acknowledging, the statute of limitations for
actions brought pursuant to the AMWA, which may serve to further
reduce the size of any purported class. In absence of these
portions of the Plaintiffs' declarations, the Motion does not
contain any evidence as to the size of the putative class. Without
any such evidence, the Plaintiffs fail to satisfy the numerosity
requirement of Rule 23.8 See Fed. R. Civ. P. 23(a)(1). The Judge
thus will deny the Plaintiffs Motion to certify a Rule 23 class.
The Plaintiffs have attached a proposed Notice of Opportunity to
Opt-In to Lawsuit and an Opt-In Consent Form to their Motion to
Certify. The Defendants have not lodged any objection to the
content of the Plaintiff's proposed Notice and Consent forms;
however, the Plaintiffs must make several changes to incorporate
the substance of the Court's Order.
The Plaintiffs additionally request that the Court requires that
the Defendants post the Notice on the Defendants' premises and that
the Defendants provide the names and last known addresses for all
the potential opt-in Plaintiffs. Although the Plaintiffs request
that the Court order both forms of notice, they make no showing,
nor argue, that mailing alone would be insufficient. The Judge
thus will only require that the Defendants produce the names and
last known addresses of drivers employed by Rosati's on or after
May 24, 2014, which the Plaintiffs may then use to effectuate
mailing of the Notice and Consent forms.
Judge Tuchi granted in part and denied in part the Plaintiffs'
Motion to Proceed Conditionally as a Collective and Class Action.
He conditionally certified the collective action, pursuant to 29
U.S.C. 216(b), of all delivery drivers employed by Rosati's on or
after May 24, 2014. He denied the Plaintiff's request to certify a
class pursuant to Federal Rule of Civil Procedure 23.
The Plaintiffs will submit a revised proposed Notice and Consent
form to the Court no later than Oct. 5, 2018. The final Notice to
the potential Plaintiffs and consent to become party Plaintiff
should be mailed no later than 14 days after the Court issues final
authorization of the Proposed Notice. The Defendants will provide
the Plaintiffs with the names and addresses of all delivery drivers
who worked at Rosati's on or after May 24, 2014 no later than Sept.
28, 2018.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/c07avZ from Leagle.com.
Robert P Cottman, a single man, and a class of others similarly
situated, Michael A Baker, a single man, and a class of others
similarly situated & Daniel L Theobald, a single man, and a class
of others similarly situated, Plaintiffs, represented by Nicholas
Jason Enoch, Lubin & Enoch PC & Stanley Lubin, Lubin & Enoch PC.
David G Naskrent, a single man, Matthew J Surma, husband, Corrina
Surma, wife, Cory Lee Hughes, spouse, husband and wife, Corey B
Cleghorn, spouse, husband and wife, DPHC Enterprise Incorporated,
an Arizona corporation & DHSC Enterprise Incorporated, an Illinois
corporation, Defendants, represented by Jeffrey Harris Wolf --
jeffrey.wolf@quarles.com -- Quarles & Brady LLP & James Alexander
Dattilo -- alexander.dattilo@quarles.com -- Quarles & Brady LLP.
EATON VANCE: Price Sues for Breach of Plan Fiduciary Duties
-----------------------------------------------------------
SHANNON PRICE, Individually and on Behalf of All Others Similarly
Situated and On Behalf of the EATON VANCE PROFIT SHARING AND
SAVINGS PLAN v. EATON VANCE CORPORATION, EATON VANCE MANAGEMENT,
EATON VANCE INVESTMENT COMMITTEE, and DOES 1-30, inclusive, Case
No. 1:18-cv-12098 (D. Mass., October 5, 2018), accuses the
Defendants of breaching their fiduciary duties and engaging in
prohibited transactions and unlawful self-dealing under the
Employee Retirement Income Security Act.
The Eaton Vance Profit Sharing and Savings Plan is a profit-sharing
plan that includes a "qualified cash or deferred arrangement" as
described in Section 401(k) of the Internal Revenue Code and is
subject to the provisions of ERISA. The Plan provides for
retirement income for over 1,800 Eaton Vance employees and former
employees.
Headquartered in Boston, Massachusetts, Eaton Vance Corporation
conducts an investment management and advisory business through
wholly- and majority-owned investment affiliates, which include
Eaton Vance Management, Parametric Portfolio Associates LLC,
Atlanta Capital Management Company, LLC, Calvert Research and
Management, and other direct and indirect subsidiaries, including
Boston Management and Research.
Eaton Vance Management is the sponsor of the Plan and the
investment adviser to many of the mutual funds in the Plan. Eaton
Vance Management is a business trust organized under the laws of
The Commonwealth of Massachusetts with its principal offices
located in Boston. Eaton Vance Management has been managing assets
since 1924 and managing mutual funds since 1931.
The Plan has established an investment or similar type of committee
to manage the assets of the Plan ("Investment Committee"). Current
and former members of the Eaton Vance Investment Committee are
fiduciaries of the Plan. The Plaintiff is currently unaware of the
identities of the Doe Defendants.[BN]
The Plaintiff is represented by:
Andrew Miller, Esq.
SANFORD HEISLER SHARP, LLP
1666 Connecticut Avenue NW, Suite 300
Washington, DC 20009
Telephone: (202) 499-5200
Facsimile: (202) 499-5199
E-mail: amiller@sanfordheisler.com
- and -
Charles Field, Esq.
SANFORD HEISLER SHARP, LLP
655 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: (619) 577-4242
Facsimile: (619) 577-4250
E-mail: cfield@sanfordheisler.com
- and -
David Sanford, Esq.
David Tracey, Esq.
Meredith Firetog, Esq.
SANFORD HEISLER SHARP, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
Telephone: (646) 402-5650
Facsimile: (646) 402-5651
E-mail: dsanford@sanfordheisler.com
dtracey@sanfordheisler.com
mfiretog@sanfordheisler.com
EQUIFAX INFORMATION: Court Narrows Claims in Shimon FCRA Suit
-------------------------------------------------------------
The United States District Court for the Eastern District of New
York issued a Memorandum Decision and Order granting in part and
denying in part Defendant's Motion to Dismiss the case captioned
JACOB Y. SHIMON, Plaintiff, v. EQUIFAX INFORMATION SERVICES LLC,
Defendant. No. 18-cv-2959 (BMC). (E.D.N.Y.).
The Plaintiff alleges that Equifax violated 15 U.S.C. Section
1681e(b) by either negligently or willfully failing to follow
reasonable procedures to assure maximum possible accuracy of the
information that it reported, because, had it done so, it would
have known that the state court had vacated the judgment. The
Plaintiff also alleges that Equifax violated Section 1681i(a) by:
(1) failing to contact LexisNexis within the required period of
time, (2) failing to provide LexisNexis with the FCRA-required
information Equifax received from plaintiff; and (3)
misrepresenting in the letters the name and address of the provider
of the information by listing the state court instead of
LexisNexis.
Class and Individual Claims under 15 U.S.C. Section 1681e(b)
Approximately five months before this case was filed, another
plaintiff began a putative class action in the Southern District of
New York alleging similar violations. Relying on the first filed
rule, Equifax has moved to stay or dismiss plaintiff's class and
individual claims under Section 1681e(b), failing to follow
reasonable measures to assure accuracy.
Under the first-filed rule, where there are two competing lawsuits,
the first suit should have priority, absent the showing of balance
of convenience or special circumstances giving priority to the
second.
Even assuming that the first-filed rule is appropriate in some
putative class actions, this one is a particularly poor candidate
because the time periods in the putative class definitions do not
entirely overlap. Although the descriptions of the conduct are
substantially identical, the De la Rosa putative class covers
people with consumer credit reports dated from January 5, 2013 to
January 5, 2018, while plaintiff's proposed definition covers
people with credit reports dated from January 10, 2016 to January
10, 2018. This means that even if there is a judgment in the De la
Rosa case, plaintiff could still bring a new class claim
representing people whose credit reports were dated from January 5
to January 10, 2018.
Class and Individual Claims for Negligent and Willful Violations of
15 U.S.C. Section 1681i
Equifax also moves to dismiss plaintiff's claims that it violated
Section 1681i negligently and willfully by: (1) failing to timely
notify LexisNexis that plaintiff disputed the civil judgment that
it reported; (2) failing to provide LexisNexis with information
that plaintiff gave Equifax and (3) misrepresenting in the
reinvestigation results letters the name and address of the entity
that provided the public record information by listing the state
court instead of LexisNexis.
Equifax argues that Section 1681i(a)(2) and Section 1681i(a)(6)(B)
do not apply to public record information, because those provisions
only apply to furnishers" and only credit account information, not
public record information is furnished.
Here, plaintiff has pleaded facts that could support a finding of
reckless disregard for Section 1681i(a)'s requirements. Plaintiff
alleges that, in response to his initial dispute of the judgment in
May 2014, he wrote three letters over five months asking Equifax to
explain its method of verification and to provide him with a
detailed report of the sources of the information and that
Equifax's responses the letters and the full credit file, did not
identify LexisNexis as the source or a source of the information.
Equifax's motion to dismiss is denied as to plaintiff's individual
and class claims for willful violations of Section 1681i.
Individual and Class Claims for Negligent and Willful Violations of
15 U.S.C. Section 1681g
The Plaintiff alleges that Equifax violated Section 1681g by, in
response to plaintiff's request, falsely representing that it
obtained information about the civil judgment against plaintiff
directly from the state court. Equifax moves to dismiss plaintiff's
claims for a willful violation on the ground that its
interpretation of the word sources in Section 1681g was objectively
reasonable and that its actions could not have been willful based
on its conduct in another class action in another jurisdiction
The Court agrees with Equifax that its interpretation of the term
sources in Section 1681g(a)(2) was sufficiently reasonable, albeit
mistaken, to preclude a finding of willfulness. Unlike Section
1681i(a), which requires consumer reporting agencies to identify
and convey certain information to any person who provided
information in dispute, Section 1681g requires them to report, in
response to a request from a consumer all information in the
consumer's file at the time of the request as well as the sources
of the information.
The fact that Equifax settled a class action in Jenkins alleging a
violation based on similar conduct and had, as part of that
settlement, committed to changing its protocol for public report
information in a credit file disclosure under Section 1681g(a), is
immaterial. And, contrary to plaintiff's argument, the fact that
other plaintiffs have commenced suit against Equifax espousing the
same theory does not mean that Equifax was on notice that its
interpretation was unreasonable.
As plaintiff acknowledges, all of those cases settled before the
court reached the merits. FCRA cases often settle for nominal
amounts far below the likely cost of continued litigation and
therefore one can draw no inference from such settlements.
A full-text copy of the District Court's October 8, 2018 Memorandum
Decision and Order is available at https://tinyurl.com/ya6yyp97
from Leagle.com.
Jacob Y. Shimon, Plaintiff, represented by Daniel Zemel --
dz@zemellawllc.com -- Zemel Law, LLC.
Equifax Information Services LLC, Defendant, represented by Zachary
A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding LLP, pro hac
vice, Alicia Bliss Gilbert -- agilbert@kslaw.com -- King &
Spalding, John C. Toro -- jtoro@kslaw.com -- King & Spalding LLP,
pro hac vice, Katherine Mcfarland Stein -- kstein@kslaw.com -- King
& Spalding, pro hac vice & Meryl W. Roper -- mroper@kslaw.com --
King & Spalding LLP, pro hac vice.
EVERETT FINANCIAL: Appeals Ruling in Baretich Suit to 9th Cir.
--------------------------------------------------------------
Defendant Everett Financial, Inc., filed an appeal from a court
ruling in the lawsuit entitled Richard Baretich v. Everett
Financial, Inc., Case No. 3:18-cv-01327-MMA-BGS, in the U.S.
District Court for the Southern District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
was filed against Everett Financial, Inc. d/b/a Supreme Lending,
and Does 1 through 100, inclusive, Case No. 37-2018-00024796, in
the Superior Court of the State of California for the County of San
Diego, and was later removed to the District Court. The lawsuit
seeks monetary damages and restitution, penalties/premium pay for
missed meal and rest periods, restitution and restoration of sums
owed and property unlawfully withheld, statutory penalties,
declaratory and injunctive relief, interest, attorneys' fees and
costs under the California Labor Code and applicable Industrial
Welfare Commission Orders.
The appellate case is captioned as Richard Baretich v. Everett
Financial, Inc., Case No. 18-80129, in the United States Court of
Appeals for the Ninth Circuit.[BN]
Plaintiff-Respondent RICHARD BARETICH, Individually, and on behalf
of other members of the general public similarly situated, is
represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
411 North Central Avenue, Suite 500
Glendale, CA 91203
Telephone: (818) 230-7502
Facsimile: (818) 230-7259
E-mail: dhan@justicelawcorp.com
Defendant-Petitioner EVERETT FINANCIAL, INC., a Texas Corporation,
DBA Supreme Lending, is represented by:
Charles L. Post, Esq.
Weintraub Genshlea Chediak Tobin & Tobin
Law Corporation
400 Capitol Mall
Sacramento, CA 95814
Telephone: (916) 558-6000
Facsimile: (916) 446-1611
E-mail: cpost@weintraub.com
FACEBOOK INC: Dean Class Suit Asserts Fraud
--------------------------------------------
Holly Dean and Lauren Meyers filed a class action lawsuit against
Facebook, Inc. for fraud.
The case is styled as Holly Dean, Lauren Meyers individually, and
on behalf of all others similarly situated, Plaintiffs v. Facebook,
Inc., Defendant, Case No. 3:18-cv-06391-EDL (N.D. Cal., Oct. 18,
2018).
Facebook, Inc. is an American online social media and social
networking service company based in Menlo Park, California.[BN]
The Plaintiffs are represented by:
Reuben D. Nathan, Esq.
Nathan & Associates, APC
2901 W. Broadway Suite #200
Newport Beach, CA 92663
Phone: (949) 270-2798
Email: rnathan@nathanlawpractice.com
FIVE GUYS: Female Managers File Wage Discrimination Class Action
----------------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
burger chain Five Guys now has on its plate a class action filed by
two of its female managers who claim that the company paid them
less than their male peers.
On Sept. 25, U.S. District Judge Sylvia Rambo of the Middle
District of Pennsylvania granted class certification to plaintiffs
Jody Finefrock and Julia Francis, who filed their Fair Labor
Standards Act lawsuit on behalf of all female managers at Five Guys
who faced wage discrimination.
Ms. Finefrock and Ms. Francis, both general managers at their
respective Five Guys restaurants for three years from 2012 to 2015,
earned $38,000 and $40,000 salaries, respectively, according to
Rambo's opinion. The two eventually learned that several male
general managers made anywhere from $41,000 to $55,000 annually.
The plaintiffs sued in July 2016 and Five Guys filed a motion to
dismiss, arguing that Ms. Finefrock and Ms. Francis did not state
valid claims under the Equal Pay Act. Particularly, Five Guys
claimed Ms. Finefrock and Ms. Francis did not provide evidence that
the issue was companywide, arguing they failed to show how all the
individual restaurants could be considered "a single establishment"
under the act.
Rambo, however, said the plaintiffs showed enough to move past the
preliminary stages of the litigation.
"At this initial stage, plaintiffs sufficiently provided a modest
factual showing that Five Guys could be considered a single
establishment under the EPA based upon the nationwide job
descriptions and policies, the frequency that the named plaintiffs
transferred store locations, and the final compensation approval by
a central office," Rambo said.
Additionally, while Rambo noted that the company has no uniform
compensation policy, job descriptions and qualifications for
manager positions nationwide are all the same.
"The information submitted by plaintiffs shows that assistant
general managers and general managers, respectively, had the same
job descriptions and responsibilities, required the same baseline
qualifications nationwide, and were paid less than some allegedly
similarly situated males. Compensation decisions, although based
initially on input from their district managers, were finalized by
a central, common office," Rambo said.
Five Guys also took issue with the fact that the pair did not name
the specific male managers who allegedly made more than them in
their complaint.
"The information submitted shows that plaintiffs Finefrock and
Francis, at various times, earned less than their alleged male
comparators," Rambo said. "Because the focus of the inquiry at this
conditional certification stage is not whether there was an actual
violation of law, but rather whether the proposed plaintiffs are
similarly situated, the court finds that plaintiffs have met their
modest factual burden."
Larry A. Weisberg of McCarthy Weisberg Cummings in Harrisburg
represents the plaintiffs and Emilie R. Hammerstein --
ehammerstein@littler.com -- of Littler Mendelson in Pittsburgh
represents Five Guys. Neither returned calls seeking comment. [GN]
FLORIDA HOME: Powell-Gachau Seeks to Recover Overtime Pay for CNAs
------------------------------------------------------------------
PATRICE POWELL-GACHAU, on behalf of herself and others similarly
situated v. FLORIDA HOME COMPANION, LLC, a Florida Limited
Liability Company, and KHOA MA, Individually, Case No.
5:18-cv-00516-JSM-PRL (M.D. Fla., October 5, 2018), is brought
under the Fair Labor Standards Act to recover alleged unpaid
overtime wages for Certified Nurse Assistants, and an additional
equal amount as liquidated damages; and to obtain declaratory
relief and reasonable attorney's fees and costs.
Florida Home Companion, LLC, is a Florida Limited Liability
Company, with its corporate headquarters located in Altamonte
Springs, Florida. Khoa Ma is a corporate officer of the Company.
The Defendants provide services for seniors.[BN]
The Plaintiff is represented by:
Andrew R. Frisch, Esq.
Chanelle J. Ventura, Esq.
MORGAN & MORGAN, P. A.
600 Pine Island Road, Suite 400
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3013
E-mail: AFrisch@forthepeople.com
cventura@forthepeople.com
FORD MOTOR: Faces Class Action Over Defective F-150 Brakes
----------------------------------------------------------
Courthouse News Service reported that a class of motorists claims
in Detroit federal court that some Ford F-150s made between 2013
and 2018 had defective brakes caused by the leaking of brake fluid
that lowered hydraulic pressure.
FORD MOTOR: Sued Over Anti-Racketeering Law Violations
------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
alleging violations of federal anti-racketeering law, a class says
Ford, Chevrolet and Chrysler/Jeep outfitted cars with Bosch CP4
fuel injection pumps that are not compatible with American diesel
fuel, and they refuse to cover the pumps under warranty when they
fail.
A copy of the Complaint is available at https://is.gd/3H3kxj
FRAME LA BRANDS: Violates ADA, Figueroa Suit Says
--------------------------------------------------
The case captioned Jose Figueroa on behalf of himself and all
others similarly situated, Plaintiff v. Frame LA Brands, LLC,
Defendant, Case No. 1:18-cv-09540 (S.D. N.Y., Oct. 17, 2018) was
filed pursuant to the Americans with Disabilities Act.
FRAME is a brand that bridges the heritage and quality of
manufacturing in Los Angeles with a distinctly European aesthetic.
Its collections take inspiration from a French way of "dressed up
casual" embodied by the style icons of the 1970s.[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
FYRE MEDIA: Promoter Gets Six-Year Jail Sentence for Fraud
----------------------------------------------------------
Adam Klasfeld, writing for Courthouse News Service, reported that
Fyre Festival promoter
Billy McFarland was sentenced on Oct. 11 to six years in jail and
$26 million in restitution for frauds that ran long after a
disastrous 2017 concert in the Bahamas led to his arrest.
"Mr. McFarland is a fraudster and not simply a misguided young
man," U.S. District Judge Naomi Reice Buchwald said this
afternoon.
Though Mr. McFarland pleaded guilty in July to defrauding investors
in what he billed as an ultra-luxurious music festival on the
Bahamian island of Exuma, the 26-year-old drew an additional wire
fraud count for his subsequent creation of a sham ticket business
called NYC VIP Access.
"If nothing else, the court must uphold the rule of law," Judge
Buchwald added. "Your choices and yours alone are the reason for
your sentence."
During his prepared speech, McFarland depicted himself as a young
man who made mistakes and had been motivated by fear of letting
down those who had trusted him.
"I made decisions that were a slap in the face to everything my
family tried to teach me," he said.
Over the course two weekends in April and May 2017, McFarland's
company Fyre Media promised headline acts like Blink-182 and Migos,
and the young executive promised to guarantee investments even
after the show canceled.
Instead of entertainment and luxury on a tropical island,
concertgoers who paid thousands of dollars for their tickets
received prepackaged sandwiches and tents instead of villas.
"When the festival failed, my world crashed," Mr. McFarland said on
Oct. 11.
Assistant U.S. Attorney Kristy Greenberg called Mr. McFarland's
motive simple greed.
She noted that shortly before the festival in early 2017,
Mr. McFarland used investor money to upgrade from an
$8,000-per-month apartment to a three-bedroom penthouse in
Manhattan that cost $21,000 per month.
"He wanted instant gratification, and to accomplish that he had to
lie," she said.
Prosecutors had pushed for Mr. McFarland to spend nearly two
decades behind bars, noting that while on bail he sold tickets that
he could not deliver, then lied about it to the FBI.
But defense attorney Randall Jackson insisted that his client
needed "significant mental health treatment." Though now with the
powerhouse firm Boies, Schiller & Flexner, Mr. Jackson formerly
served as federal prosecutor in the same district.
Two psychiatrists diagnosed Mr. McFarland with attention deficit
hyperactivity disorder and mania, but prosecutors noted that his
defense strategy emerged only after trying to minimize his conduct
as a young man who tried to atone for his mistakes.
Ms. Greenberg mocked the defense's about-face as "The Tale of Two
Billys."
Rejecting the argument that McFarland's victims were sophisticated
investors, Judge Buchwald said he gets "no free pass to rip off the
people who could afford to be ripped off."
"Some could not afford it," the judge added.
One of those victims, John Nemeth, said that Mr. McFarland
defrauded him of $180,000 of his life savings, including saved
lunch money.
"I will never be able to replace that money that I fear is lost
forever," he said.
GALILEE MEMORIAL: Plaintiffs Disappointed Over Jury Verdict
-----------------------------------------------------------
Linda A. Moore, writing for Commercial Appeal, reports that
plaintiffs left the courtroom on Sept. 25 furious and hurt after a
Shelby County Chancery Court jury awarded them $7,500 for each body
represented in the class-action lawsuit against the funeral homes
that took remains to Galilee Memorial Gardens for burial.
Some expressed their disbelieve that not knowing where a father,
mother or child is buried is worth only $7,500. Others shouted and
some broke down in tears.
"I bet you won't none of their loved ones be left on the side of
the road, left in sewer systems, left on somebody else yard,
stacked on top of each other," said Sandra Hobson, who loudly
expressed her shared grief and who buried a father at Galilee.
On Sept. 24, the jury found that the funeral homes named in the
lawsuit were not responsible for the mishandling of bodies and that
Galilee was 99 percent responsible for what happened.
However, the jury also found that the funeral homes had breached
their fiduciary duty to the families that used their services,
resulting in some damages for the 1,200 plaintiffs.
The plaintiff's had asked for $2.5 to $5 million for each decedent
at Galilee. The defendants proposed $5,000.
"My daughter is out there now, with a flag, just a flag, no
tombstone," said April Hawthorne, whose two-year-old daughter,
Da'unquine Hawthorne, died in 2012 and is at Galilee.
'What happened out there was a tragedy'
The jury's ruling is disappointing, said Brian Winfrey, one of
several plaintiff attorneys.
"It is one of the most devastating and disappointing circumstances
that I've ever been through in my career,"
Mr. Winfrey said.
The ruling can be appealed, but no decision has been made on what
happens next, he said.
"We're exploring all options at this point. But for right now,
we're trying to deal with the fallout. They're sad and
understandably so," Mr. Winfrey said. "What happened out there was
a tragedy."
Ernest Love was less openly emotional about the verdict and
judgment. His daughter, Anitra Love, was buried there three years
ago
The funeral homes should have taken a "more of a culpable stand,"
Love said
"They had to have known something or even suspected just a little
bit," he said.
Families still searching for answers
Although the plaintiffs number more than 1,000, it is Akilah
Wofford's name at the top of the lawsuit. She has a father
somewhere at Galilee.
"My heart is just broken, because not only am I leaving here today
with a verdict, I'm still leaving here with no answers," Ms.
Wofford said. "I'm disappointed with how everything was handled.
I'm disappointed not only in how things were handled during the
funeral arrangements, but four years later, you're sitting here
telling families that after four years of grieving and still not
having answers, it's only worth $7,500."
But there are things they can do, she said.
There are plans to organize a foundational effort and establish a
Facebook page to commemorate the family members at Galilee, Ms.
Wofford said.
"And moving forward we hope we can generate some funding for
getting a memorial built for those families who have loved ones who
are lost," Ms. Wofford said.
More: Galilee verdict: Funeral homes were not responsible for
mishandled bodies at cemetery
More: Who's responsible for mishandled bodies, Galilee Memorial
Gardens or the funeral directors?
Damages are about what's "level-headed, fair and reasonable," said
plaintiff attorney Keith Mitnik, during the attorneys arguments on
Sept. 25.
"It's about a husband that can't be buried next to his wife, a
mother that can't be buried next to a child," Mr. Mitnik said.
"It's about grieving that will never be over."
Compensation should be reasonable, said John Branson, the attorney
for M. J. Edwards Funeral home, and a representative for all of the
funeral homes being sued.
"The funeral homes regret what happened here," Mr. Branson said.
Accusations that directors abandoned bodies
But they should not be held liable to the level that the plaintiffs
are seeking, he said.
At Galilee, located on Ellis Road in Bartlett, funeral directors
left caskets at a pavilion or committal area after the cemetery
service to be buried later. The funeral directors left with the
families.
However, the remains very often were not buried in an individual
grave, but were crushed by heavy equipment and forced one atop the
other in graves already occupied.
The plaintiffs in the lawsuit claimed that the funeral directors
abandoned the bodies of their loved ones and had they stayed for
the burials, Galilee would not have been able to do what was done.
Counsel for the funeral homes was able to successfully argue to the
jury that burial contracts were with the cemetery, not the funeral
homes. Also, cemeteries are registered with the state and state
officials allowed Galilee to operate after its registration had
expired.
The bad acts at Galilee became public knowledge in 2013 after a
funeral director and industry consultant was asked to find the
grave of a shooting victim.
In testimony for the plaintiffs, Derrick Gunn said he saw crushed
and crumpled caskets piled on top of each other, and that cemetery
employees had to look inside of the caskets to identify the
remains.
They never found the woman Mr. Gunn was asked to locate.
Galilee was shut down in 2014 and placed under the control of the
Tennessee Department of Commerce and Insurance.
Galilee owner Jemar Lambert entered an Alford Plea in March 2015
and was given 10 years of probation for the most serious crime --
burying bodies on the adjacent property.
The other charges, including abuse of a corpse and another theft
charge, were dismissed under a plea agreement with District
Attorney General Amy Weirich's office and accepted by Criminal
Court Judge Lee Coffee. [GN]
GOOGLE INC: Faces Class Action Over Google Plus User Data Leak
--------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported that
in the latest fallout over yet another Silicon Valley privacy
scandal, computer users hit Google and its parent company Alphabet
with a federal class action on Oct. 8 for potentially exposing the
data of up to 500,000 users of Google Plus to outside parties.
Google announced in a blog post on Oct. 8 that it would discontinue
its largely unsuccessful Google Plus social network for
non-business users after it discovered a software glitch made user
data accessible to outsiders from 2015 to March 2018.
The bug gave third-party app developers access to names, email
addresses, occupations, birthdates, and other information that is
"highly valuable to identity thieves," according to the complaint.
According to the plaintiffs, Google decided not to warn users about
the data leak for at least seven months for fear it would attract
scrutiny from regulators at a time when Facebook was facing hard
questions about its own Cambridge Analytica privacy scandal.
"Incredibly, defendants chose to protect themselves from potential
'regulatory interest' rather than protect the personal information
of its users and advise them that their personal information had
been exposed in a massive leak of information to unauthorized third
parties," the 28-page complaint states.
Google said in a blog post that it could not identify which user
accounts were compromised and that it worked to immediately fix the
bug after discovering it in March 2018. Up to 438 outside app
developers had access to the user data, according to Google.
"We found no evidence that any developer was aware of this bug, or
abusing the [application programming interface], and we found no
evidence that any profile data was misused," the company said in
its blog post.
Google also announced it will shut down the Google Plus service for
regular consumers within the next 10 months. Launched in June 2011,
Google Plus intended to rival popular social media networks like
Facebook and LinkedIn, but it never gained popularity on the same
scale. Google Plus allows users to create profiles and add other
users as connections, or friends, to various circles, or networks.
Google said the service currently has "low engagement" with 90
percent of user sessions lasting less than five seconds.
However, the company said it will maintain and build upon the
service for business customers, who use Google Plus to communicate
with co-workers through an ostensibly secure network.
Lead plaintiffs Matt Matic and Zak Harris, of California, claim
that because the vulnerability existed for three years and Google
only surveyed the scope of the data leak for two weeks in March
2018, "the number of compromised users is expected to be much
higher" than 500,000.
The plaintiffs allege violations of California business and
customer records laws, negligence and invasion of privacy. They
seek class certification, an injunction, damages, restitution and
disgorgement.
They are represented by Joshua Watson of the Clayeo C. Arnold law
firm in Sacramento.
Watson also represents a proposed class in another suit filed less
than two weeks ago over a Facebook software vulnerability that
compromised 50 million user accounts.
The lawsuit comes toward the end of a year chock full of data
privacy scandals for Silicon Valley companies. Facebook has been
hit with lawsuits over the Cambridge Analytica scandal that
affected 87 million user accounts, its sharing of private user data
with device makers, and its alleged collection of Android phone
users' data without consent.
Google was also sued earlier this year for allegedly tracking
users' locations through its Android operating system without their
permission.
Google's press team did not immediately respond to an email seeking
comment on Oct. 9.
GREAT PLAINS: Brite Files Class Suit Under FLSA
-----------------------------------------------
Steven Brite, individually and on behalf of all others similarly
situated v. Great Plains Analytical Services, Inc., Case No.
7:18-cv-00153 (W.D. Tex., August 24, 2018), seeks to recover unpaid
overtime under the Fair Labor Standards Act and the New Mexico
Minimum Wage Act.
The Plaintiff Brite was employed by GAS as an Emissions Specialist
from June of 2015 until November of 2016.
The Defendant Great Plains Analytical Services, Inc. is an Oklahoma
corporation doing business throughout the United States, including
Texas and New Mexico. GAS is a premier nationwide emissions testing
provider. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
GRUBHUB: State Court Should Decide on Labor Dispute, Judge Says
---------------------------------------------------------------
Nicholas Iovino, writing for Courthouse News Service, reported that
a state court ought to decide if Grubhub must prove its delivery
driver was an independent contractor and not an employee under a
new game-changing state labor standard, a federal judge said on
Oct. 11.
"It would make the most sense to have the California courts decide
this California law issue," U.S. Magistrate Judge Jacqueline Scott
Corley said during the Oct. 11 court hearing.
Judge Corley referred to whether the California Supreme Court's
April 30 decision in Dynamex v. Superior Court, which established a
new test for determining one's employment status, should apply
retroactively to a Grubhub labor dispute.
Former Grubhub delivery driver Raef Lawson asked Corley to issue an
indicative ruling telling the Ninth Circuit that she is willing to
reconsider her prior ruling, which came down in favor of restaurant
food-delivery service Grubhub. The case is currently under appeal
at the Ninth Circuit.
Following a six-day bench trial last year, Corley ruled in February
that Lawson was an independent contractor not entitled to
employment benefits because he had too much freedom to be
considered an employee under California law.
But that was before the California Supreme Court set a new standard
in Dynamex that broadens the definition of employee and makes it
harder for companies to classify workers as independent
contractors. The Dynamex ruling replaced a complex 11-factor test
with a simpler three-pronged analysis for determining one's
employment status.
A revised ruling in favor of Lawson could set a new precedent for
California gig economy workers fighting for employment benefits
such as minimum wage, overtime pay and reimbursement of job-related
expenses. That would deal a major setback to companies like Uber,
Lyft and DoorDash that rely on the cheap labor of independent
contractors to boost profits and fuel their growth.
Grubhub argues that applying a new standard retroactively would
violate its due process rights and force it to re-litigate a case
it already won.
"The law was settled at the time," said Grubhub attorney Theane
Evangelis -- tevangelis@gibsondunn.com -- of Los Angeles firm
Gibson, Dunn & Crutcher.
Mr. Lawson's attorney Shannon Liss-Riordan insisted California
Supreme Court decisions always apply retroactively unless the court
specifically rules otherwise.
Ms. Liss-Riordan has represented gig economy workers in multiple
class actions against Uber, Lyft and other companies. Lawson's case
started as a class action, but Judge Corley denied his motion for
class certification in 2016.
If Judge Corley granted Mr. Lawson's motion for an indicative
ruling, the Ninth Circuit would still have to remand the case back
to her court before a new trial or reconsideration could begin.
The Ninth Circuit could also choose to move forward with the appeal
and ask the California Supreme Court to clarify whether its Dynamex
ruling applies retroactively to the case.
Additionally, Ms. Liss-Riordan wants the state supreme court to
resolve another question: whether Dynamex applies to expense
reimbursement claims and not just wage claims. In July, an Orange
County Superior Court judge ruled in Johnson v. VCG-IS LLC that
exotic dancers could pursue expense reimbursement claims under the
new labor standard.
If the California Supreme Court accepts that interpretation, it
could make employers liable for substantially higher damages.
"That's the main source of damages in all these cases," Ms.
Liss-Riordan said in an interview after the hearing. "Companies
shift the costs of doing business to workers."
To prove a worker is an independent contractor under the new "ABC"
test established in Dynamex, employers must show they do not
directly control the worker, that the work performed falls outside
the company's usual course of business, and that the worker is
"customarily engaged in an independently established trade."
Ms. Evangelis told the judge that even if the new standard applies
to Grubhub's case, the outcome won't change.
Judge Corley was skeptical.
"That I can't agree with," the judge said. "That test is a sea
change."
HERTZ GLOBAL: Shearman & Sterling Discusses Class Suit Dismissal
----------------------------------------------------------------
Shearman & Sterling LLP, in an article for Lexology, reports that
on September 20, 2018, the United States Court of Appeals for the
Third Circuit affirmed dismissal of a putative securities fraud
class action brought against Hertz Global Holdings Inc. (the
"Company") and several of its executives for failure to plead a
strong inference of scienter. In Re Hertz Global Holdings Inc., No.
17-2200 (3d Cir. Sep't 20, 2018). Plaintiffs alleged that
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 by making materially false and
misleading statements concerning the Company's financial results,
internal controls, and future earnings projections. The panel found
that plaintiffs' allegations more plausibly suggested defendants
were "just bad leaders," confirming that claims of mismanagement
cannot be converted into a claim of securities fraud, and that the
complaint failed to allege factual allegations sufficient to give
rise to a strong inference of scienter.
Plaintiffs' lawsuit followed a restatement by Hertz that revealed
the Company's financial statements from 2011 to 2013 cumulatively
overstated its net income by $132 million (20.23%) and its pre-tax
income by $215 million (17.58%). The restatement disclosed internal
control deficiencies, including that "an inconsistent and sometimes
inappropriate tone at the top" had existed under its former
management and resulted in an environment that may have led to
inappropriate accounting decisions. Several executives resigned
after the restatement. Based on these announcements, plaintiffs
alleged that defendants falsely touted the Company's financial
position. The United States District Court for the District of New
Jersey dismissed the action, holding that plaintiffs failed to
adequately plead facts giving rise to a strong inference of
scienter.
The panel upheld the district court's decision. Instructing that
courts must analyze the issue of scienter "holistically," the Third
Circuit first held that the district court properly applied the
Supreme Court's decision in Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). First, rejecting the argument that
the district court failed to make inferences in plaintiffs' favor,
the Third Circuit held that Tellabs requires a comparative analysis
that considers inferences favorable to plaintiffs as well as
plausible, nonculpable explanations of the alleged misconduct.
Second, the Third Circuit held that the district court was not
requiring plaintiffs to submit "smoking gun" evidence, but instead
was simply requiring plaintiffs to plead factual allegations to
support a cogent inference of scienter. Finally, the Third Circuit
held that the district court correctly considered plaintiffs'
scienter allegations holistically, even though the district court's
analysis was broken up into one-at-a-time assessments of individual
categories of allegations.
After concluding Tellabs had been applied properly, the Third
Circuit held that plaintiffs' allegations failed to give rise to a
strong inference of scienter. With respect to allegations based on
the size and scope of the restatement, the Third Circuit found that
the fact that the accounting errors were spread across several
different accounting categories circumscribed any inference of
scienter, and further found that the restatement's size alone was
not sufficiently large to create a strong inference absent
particularized allegations of fraudulent intent. The panel noted
that, when broken down by year, the income categories had been
overstated by between 9.97% and 32.12%.
The Third Circuit also concluded that the restatement's admissions
of internal control weaknesses were more plausibly admissions of
mismanagement and not affirmative misconduct. The panel observed in
particular that the admission of an "inappropriate tone at the top"
was linked to one executive's management style. This, at most,
meant defendants presided over a poorly managed corporation, which
the Third Circuit reiterated is insufficient to support a
securities fraud claim. In addition, the panel found that a strong
inference of scienter did not arise from the executives'
resignations because plaintiffs did not allege that the
resignations resulted from participation in a systemic fraud. For
corporate departures to strengthen an inference of scienter, the
panel noted there must be allegations suggesting "a compelling
inference that the resignation was the result of something other
than…the release of bad news." Likewise, with respect to
plaintiffs' allegations regarding defendants signing SOX
certifications that later turned out to be false, the panel held
that such allegations cannot give rise to an inference of scienter
absent allegations that defendants knowingly or recklessly signed a
false certification.
Finally, the panel concluded that allegations concerning insider
trading did not create a strong inference of scienter because the
class period alleged was long (29 months), plaintiffs' allegations
did not plausibly suggest that trades were timed to improperly reap
a benefit from any particular disclosure, and only two of the five
named defendants allegedly engaged in trading activities. The panel
noted that, even though some of the trading activity involved large
percentages of certain executives' holdings, that does not give
rise to a strong inference of scienter when other factors, such as
timing of the relevant sales, weigh against that inference.
The Third Circuit's decision stands as a reminder that claims of
mismanagement alone do not constitute securities fraud claims, and
underscore that plaintiffs must meet a high bar to allege facts
sufficient to give rise to a strong inference of scienter. [GN]
HI-TEK MANUFACTURING: Sued by Pankey Over FCRA Violations
---------------------------------------------------------
ORLANDO PANKEY, On behalf of himself and all Others similarly
situated v. HI-TEK MANUFACTURING, INC., AEROTEK, INC. and AAIM EA
TRAINING AND CONSULTING, LLC, Case No. 1:18-cv-00702-MRB (S.D.
Ohio, October 4, 2018), is brought on behalf of those who are
unlawfully denied pre-adverse employment decision copies of their
consumer reports and rights, in violation of the Fair Credit
Reporting Act.
HiTek Manufacturing, Inc. is a corporation, which is registered in
Ohio and does business in Butler County, Ohio. Aerotek, Inc., a
corporation, is a global staffing agency, doing business in Butler
County, Ohio, and is registered as a foreign corporation with the
Ohio Secretary of State.
AAIM EA Training and Consulting, Inc., is a corporation
headquartered in Missouri, which conducts consumer background
checks in Ohio and other states. AAIM is a company that acts as a
third-party, employer service company, which assists companies with
the hiring and screening process and other employment needs. AAIM
provided these services for HiTek and Aerotek regarding Pankey's
hiring process.[BN]
The Plaintiff is represented by:
Matthew-Miller Novak, Esq.
GODBEY LAW
708 Walnut Street, Suite 600
Cincinnati, OH 45202
Telephone: (513) 241-6650
Facsimile: (513) 241-6649
E-mail: Matt@godbeylaw.com
- and -
Brian P. Gillan, Esq.
FREKING MYERS & REUL LLC
600 Fine Street, 9th Floor
Cincinnati, OH 45202
Telephone: (513) 721-1975
Facsimile: (513) 651-2570
E-mail: bgillan@fmr.law
HJ HEINZ: Court Closes Lopez Suit Without Prejudice
---------------------------------------------------
Judge William Q. Hayes of the U.S. District Court for the Southern
District of California closes the case, SERGIO LOPEZ, as an
individual and on behalf of all others similarly situated,
Plaintiff, v. H.J. HEINZ COMPANY, L.P. and H.J. HEINZ OPERATION
PARTNERSHIP; Defendants, Case No. 17-cv-00077-WQH-AGS (S.D. Cal.),
without prejudice to any party and with leave to file a motion to
reopen.
On May 1, 2017, the Court issued an Order granting the parties'
Joint Motion to Consolidate the action with Vazquez v. Kraft Heinz
Foods Company, Case No. 16-cv-02749-WQH-AGS. Under the Court's
order, the Vazquez action was designated as the lead case and the
plaintiffs were permitted to file a consolidated complaint in that
action.
On Aug. 28, 2018, the Court ordered parties to show cause by Sept.
7, 2018 why the case, No. 17-cv-00077-WQH-AGS, should not be closed
with leave for any party to file a motion to reopen at any time.
On Sept. 7, 2018, the Plaintiff submitted that the case may be
closed. The Defendant did not respond to the Court's Order to Show
Cause.
Judge Tigar directed the Clerk of the Court to administratively
close the case without prejudice to any party and with leave to
file a motion to reopen.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/NIREm9 from Leagle.com.
Sergio Alfonzo Lopez, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Paul K. Haines --
phaines@haineslawgroup.com -- Haines Law Group, APC, Sean M.
Blakely -- sblakely@haineslawgroup.com -- Haines Law Group, APC &
Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law Group,
APC.
H.J. Heinz Company, L.P., a Delaware Limited Parnership & H.J.
Heinz Operation Partnership, an unknown entity, Defendants,
represented by Daniel B. Chammas -- dchammas@fordharrison.com --
Ford & Harrison LLP & Alexandria Marie Witte --
awitte@fordharrison.com -- Ford & Harrison LLP.
HOME DEPOT: Case on CAFA Interpretation Joins SCOTUS Docket
-----------------------------------------------------------
Phillip Bantz at Law.com reportst that the U.S. Supreme Court has
given appellate attorneys for Home Depot reason to invoke the
national big box store's slogan, "Let's Do This."
The Supreme Court agreed to hear Home Depot USA v. Jackson, which
hinges on the U.S. Court of Appeals for the Fourth Circuit'
interpretation of the Class Action Fairness Act. CAFA allows
defendants to remove actions from the state to federal court if
certain jurisdictional requirements are met.
The case has implications for corporations of all sizes and their
legal departments, which could be facing class action-sized
headaches if Atlanta-based Home Depot falters.
Home Depot argued that third-party counter-defendants should be
entitled to remove the claims against them to federal court under
CAFA. Home Depot is such a defendant in the case at hand, which
began when Citibank filed a debt collection action against George
Jackson in a North Carolina state court. Jackson filed
counterclaims against Home Depot and another business.
In urging the Supreme Court to hear the case, Home Depot and its
attorneys asserted that the Fourth Circuit's "countertextual
interpretation of CAFA's removal provision has created a roadmap
for circumventing CAFA's goal of ensuring that defendants in
qualifying class actions may defend themselves in federal court."
Home Depot has amici backing from the Retail Litigation Center
Inc., U.S. Chamber of Commerce, Product Liability Advisory Council
Inc. and DRI, an organization of defense attorneys and in-house
counsel.
DRI asserted in its brief that the Supreme Court needed to step in
and "prevent forum-shopping plaintiffs lawyers from evading CAFA
removal and forcing national defendants to litigate or settle class
action claims in plaintiff-friendly state courts."
In urging the Supreme Court not to hear the case, Jackson contended
in his brief that Home Depot's argument was "exaggerated and
unconvincing," adding that the company and the amici "should take
their complaint to Congress."
"That Congress has done nothing in the years since the judicial
consensus on this issue emerged underscores that Home Depot's
assertion that the courts of appeals have flouted congressional
intent is incorrect," Jackson said.
Jackson's counsel of record, Brian Warwick of Varnell & Warwick in
Lady Lake, Florida, wrote in an email that Home Depot and its
supporters were using the case as a "vehicle to achieve a broader
and illegitimate end -- to upend the intent of Congress and Supreme
Court precedent and force all class action litigation into federal
court, even for small classes only involving local issues."
Home Depot's attorney, Sarah Harrington of Goldstein & Russell in
Bethesda, Maryland, declined an interview request.
Another case to watch:
The Supreme Court also added to its docket Rimini Street v. Oracle
USA, which pits two software companies against one another in a big
money fight that centers on a circuit split over cost-shifting in
copyright cases.
Rimini Street Inc., which is facing more than $20 million in costs
and is accused of $35.6 million in copyright infringement damages,
argued this case is a "pristine vehicle to resolve a circuit split
over whether the Copyright Act authorizes courts to award
nontaxable costs."
Oracle didn't want the case to get this far. It had contended in
opposition to cert that the case is the "poster child for why
Congress gave courts 'discretion' to award prevailing parties in
copyright cases their 'full costs.'"
HYUNDAI MOTOR: 9th Cir. En Banc Panel Reviews Settlement
--------------------------------------------------------
Amanda Bronstad at Law.com reportst that an en banc federal appeals
panel grilled lawyers on both sides of a case over a ruling earlier
this year that many in the class action bar contended could
threaten the viability of nationwide settlements.
The panel reviewed a Jan. 23 decision in which the U.S. Court of
Appeals for the Ninth Circuit de-certified a nationwide class
action settlement with Hyundai Motor America Inc. and Kia Motors
America Inc. after concluding that U.S. District Judge George Wu of
the Central District of California had failed to analyze the
consumer laws of several states. That so-called predominance
analysis is required under Rule 23, the class action law under the
Federal Rules of Civil Procedure, though many debate whether it's
as essential in the settlement context versus class certification.
But the panelists spent most of the hearing peppering the four
lawyers—one for the objector, one for the plaintiffs, one for
Hyundai, and one for Kia -- with questions about the specific
circumstances behind the settlement's approval. Many asked what law
governed the settlement agreement -- a question that prompted
conflicting replies. They also asked just how far Wu's analysis
should have gone.
Plaintiffs attorney Steve Berman of Seattle's Hagens Berman Sobol
Shapiro and Hyundai attorney Shon Morgan of Quinn Emanuel Urquhart
& Sullivan in Los Angeles both insisted that Wu had adequately
addressed the choice-of-law issue.
"I don't think he needed to do it, but he did it," Morgan said. "He
was at least cognizant of this issue and tried to address it even
though I don't feel he needed to on this record."
James Feinman of Lynchburg, Virginia, who represented the objector
who won reversal of the settlement, argued that Wu did "no
analysis" of the various state laws when he approved the deal, even
though he had tentatively rejected certification in an earlier
case.
The ruling in In re Hyundai and Kia Fuel Economy Litigation caused
alarm for lawyers on both sides. In a dissent, Judge Jacqueline
Nguyen wrote that the majority's opinion "deals a major blow to
multistate class actions."
Several federal judges, including those outside California, have
cited In re Hyundai in their orders reviewing class action
settlements or certification, and the decision has appeared in
high-profile settlements.
Lawyers on both sides petitioned the Ninth Circuit to review the
case en banc. They argued that the ruling conflicted with a host of
other decisions, including the Ninth Circuit's own opinion in
Hanlon v. Chrysler, which came out in 1998.
Feinman was quick to explain why Hanlon was different.
"What this case presents for the court is two ends of the
spectrum," he said. In Hanlon, there were class representatives
from every state; but Hyundai had plaintiffs from only 18 states.
But Judge Andrew Hurwitz asked how his clients could have been
injured, since they could just opt out of the settlement and
proceed with their own case.
Feinman insisted that the settlement didn't involve a Virginia
subclass and, as such, deprived his clients of the right to be
represented by class counsel. Such representation is required, he
said, under Rules 23 and the U.S. Supreme Court's 1997 decision in
Amchem Products v. Windsor, which found that both sides of a class
action settlement must make sure to give "undiluted, even
heightened, attention" to Rule 23's requirements in order to
protect the rights of absent class members."
"They had that right, and it was destroyed through this process,"
he said.
Feinman, who represented an objector claiming to represent
thousands of Virginia residents, also insisted that that state's
law would have potentially given them more damages than California
law—a remark that drew skepticism from opposing lawyers.
The Hyundai decision relied on the Ninth Circuit's 2012 holding in
Mazza v. American Honda Motor. In that case, the Ninth Circuit
de-certified a nationwide class under California law after finding
that each of the 44 states involved had a "strong interest in
applying its own consumer protection laws." But that ruling
involved a certification motion, not approval of a settlement—a
distinction that the Hyundai settlement's supporters pointed out.
And, in Hyundai, Berman said: "I don't think Judge Wu had an
obligation sua sponte to try to figure out whether there are
conflicts all over the place."
At one point, Berman tried to argue that doing an analysis of all
50 states would be "a lot of work" for the lawyers at settlement.
Judge Andrew Kleinfeld abruptly ended that argument.
"That doesn't seem to amount to much compared to $9 million," he
said, referring to how much plaintiffs lawyers in Hyundai got in
attorney fees.
Judge Johnnie Rawlinson later questioned him on how Wu came up with
that fee amount.
"This was not some sweetheart deal," Berman insisted.
INSYS THERAPEUTICS: Martin Files Suit in Ariz. for Personal Injury
------------------------------------------------------------------
A class action lawsuit has been filed against Insys Therapeutics
Incorporated. The case is styled as Ramon Martin individually and
on behalf of all others similarly situated, Plaintiff v. Insys
Therapeutics Incorporated a Delaware corporation, Defendant, Case
No. 2:18-cv-03338-DLR (D. Ariz., Oct. 17, 2018).
The nature of suit is stated as Personal Injury Product Liability.
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.[BN]
The Plaintiff is represented by:
Sean James O'Hara, Esq.
Kercsmar & Feltus PLLC
7150 E Camelback Rd., Ste. 285
Scottsdale, AZ 85251
Email: (480) 421-1001
Fax: (480) 421-1002
Email: sjo@kflawaz.com
- and -
Todd Feltus, Esq.
Kercsmar & Feltus PLLC
7150 E Camelback Rd., Ste. 285
Scottsdale, AZ 85251
Phone: (480) 421-1001
Fax: (480) 421-1002
Email: tfeltus@kflawaz.com
INVUITY INC: Leibowitz Files Suit Over Sale to Stryker Corp.
------------------------------------------------------------
RUTH LEIBOWITZ, On Behalf of Herself and All Others Similarly
Situated v. INVUITY, INC., GREGORY T. LUCIER, SCOTT FLORA, WILLIAM
W. BURKE, RANDALL A. LIPPS, ERIC ROBERTS, and DANIEL WOLTERMAN,
Case No. 4:18-cv-06136-YGR (N.D. Cal., October 5, 2018), seeks to
enjoin the expiration of a tender offer on a proposed transaction,
pursuant to which Invuity will be acquired by Stryker Corporation,
through its wholly owned subsidiary Accipiter Corp. ("Purchaser").
Ms. Leibowitz alleges that the Proposed Transaction will unlawfully
divest Invuity's public stockholders of the Company's valuable
assets if all material information concerning the Proposed
Transaction is not fully disclosed to Company stockholders.
Invuity is a Delaware corporation and maintains its principal
executive office in San Francisco, California. The Individual
Defendants are directors and officers of the Company.
Invuity is a medical technology company focused on developing and
marketing advanced surgical devices to improve the surgeon's
ability to perform minimal access surgery through smaller and
hidden incisions.[BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9107 Wilshire Blvd., Suite 450
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jelkins@weisslawllp.com
- and -
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
E-mail: racocelli@weisslawllp.com
JARINC LTD: Blose Suit Alleges FLSA Breach
------------------------------------------
Nathan Blose, on behalf of himself and all similarly-situated
individuals v. JARINC, Ltd. dba Domino's Pizza, and John Romano et
al., Case No. 1:18-cv-02184 (D. Colo., August 24, 2018), is brought
against the Defendants for failure to compensate with minimum wages
as required by the Fair Labor Standards Act, the Colorado Wage
Claim Act and the Colorado Minimum Wage Act.
The Plaintiff worked for the Defendants in Boulder, Colorado as a
delivery driver.
The Defendants operate Domino's pizza restaurants in Colorado and
other states (the "JAR Domino's stores"). [BN]
The Plaintiff is represented by:
David Lichtenstein, Esq.
Matt Molinaro, Esq.
Kristina Rosett, Esq.
Law Office of David Lichtenstein, LLC
1556 Williams St., Suite 100
Denver, CO 80218
Tel: (303) 831-4750
Fax: (303) 863-0835
E-mail: dave@lichtensteinlaw.com
matt@lichtensteinlaw.com
kristina@lichtensteinlaw.com
JOSEPH CORY: Truckers' Wage Suit Not Pre-Empted by Federal Law
--------------------------------------------------------------
P.J. D'Annunzio, writing for New Jersey Law Journal, reports that a
putative class action brought by drivers who allege expenses were
improperly deducted from their wages can continue, the U.S. Court
of Appeals for the Third Circuit has ruled.
The appeals court affirmed a district judge's denial of defendant
Joseph Cory Holdings' motion to dismiss the case.
The plaintiffs filed the case under the Illinois Wage Payment and
Collection Act against Cory, a motor carrier and property broker,
which deducted their wages for uniforms and goods damaged in
transit. In its motion to dismiss, Cory argued that the Federal
Aviation Administration Authorization Act pre-empts the IWPCA.
"The purpose of the FAAAA's preemption clause is to prohibit states
from effectively re-regulating the trucking industry and to promote
'maximum reliance on competitive market forces.' The preemption
clause undoubtedly applies, for example, to state laws directly
restricting types of goods that can be carried by trucks, tariffs,
and barriers to entry. But state law may also be preempted if it
has an indirect effect. This intent is patent in the FAAAA insofar
as the preemption clause employs the phrase 'related to'
immediately before 'a price, route, or service of any motor
carrier,'" according to Third Circuit Judge Michael Chagares'
opinion.
Turning to the present case, Chagares said, "Wage laws like the
IWPCA are a prime example of an area of traditional state
regulation, and we do not lightly conclude that such laws are
superseded. Moreover, such laws are a part of the backdrop that
motor carriers and all business owners must face in conducting
their affairs. The IWPCA does not single out trucking firms, and it
only concerns the relationship between employers and employees.
While the fact that the IWPCA does not regulate affairs between
employers and customers is not dispositive, it does demonstrate
that the operation of the IWPCA is steps away from the type of
regulation the FAAAA's preemption clause sought to prohibit."
With that in mind, Chagares and the court concluded that the IWPCA
did not affect motor carrier business to the extent that the
FAAAA's authority would be impinged.
"We conclude that the IWPCA does not have a significant impact on
carrier rates, routes, or services of a motor carrier and does not
frustrate the FAAAA's deregulatory objectives, as the impact of the
IWPCA is too tenuous, remote, and peripheral to fall within the
scope of the FAAAA preemption clause," Chagares said.
Peter F. Burns, Esq. -- pberk@genovaburns.com -- of Genova Burns in
Newark represents Joseph Cory and Shanon J. Carson of Berger
Montague, Esq. -- scarson@bm.net -- represents the plaintiffs.
Neither responded to requests for comment.[GN]
KETTERING HEALTH: Doctor Billing Lawsuit Expands
------------------------------------------------
Kaitlin Schroeder, writing for Dayton Daily News, reports that more
patients have joined a lawsuit arguing they were unfairly charged
high medical bills when they went to an in-network hospital for
emergency care but were unknowingly assigned an out-of-network
plastic surgeon.
Three new patients, represented by law firm Sadlowski & Besse, are
joining two others suing plastic surgeon Dr. Kenneth Christman,
Premier Health and Kettering Health Network.
The Dayton Daily News previously reported on the initial lawsuit
filed against Premier's Miami Valley Hospital and Christman. Two
hospitals owned by Kettering Health, Soin Medical Center and
Kettering Medical Center, were recently added to the lawsuit.
The patients are asking to have their case in Montgomery County
Common Pleas Court granted class action status, arguing there is a
pattern of unfair practices by Christman and the hospitals where he
is on call.
Kettering Health Network and Premier Health said in statements they
do not comment on pending litigation. Christman's attorney Caroline
Gentry, Esq. -- cgentry@porterwright.com-- did not return a request
for comment.
The hospitals are in-network with the plaintiffs' insurance
companies, meaning they have contractual agreements for price
discounts and in return the insurers cover a larger portion of the
patients' medical care.
Christman is not an employee of either hospital and is not
in-network with any insurance company. Christman did not tell the
patients his insurance status, the lawsuit says.
The lawsuit argues "Kettering Health continued to allow this
misconduct to continue, despite repeated complaints and grievances
filed by patients over the course of years regarding Christman's
unethical and illegal misconduct."
The suit states that as a result of patients not being informed of
his insurance status until after the fact, patients are unable to
make an informed decision, such as requesting a different
in-network physician, requesting an out-of-network referral, or
going to a different in-network hospital to have the medical
services performed.
When responding to the complaints from the patients treated at
Miami Valley Hospital, Christman filed a motion stating that he is
not legally obligated to tell the patients his insurance status.
"The initial question for this Court is whether such a legal duty
exists as a matter of law. The answer is straightforward: Ohio law
currently does not establish such a legal duty," Christman's motion
states.
Premier Health has said it had no duty to disclose any information
about the practices of contract doctors at its hospital, according
to a motion filed in July.
The lawsuit says the patients were surprised by the high bills from
Christman and after initially not paying them they faced mounting
calls for them to be paid by the doctor's office.
Billing practices is an issue the medical industry has been
grappling with nationally.
Several independent physicians previously told the Dayton Daily
News that they feel squeezed by insurance companies, saying their
small practices don't have enough negotiating power to demand fair
in-network prices for their services.[GN]
KROGER CO: 9th Cir. Revives Transfat Class Action
-------------------------------------------------
Courthouse News Service reported that a Ninth Circuit panel on Oct.
4 revived a potential class action over trans fat in Kroger bread
crumbs, finding U.S. Food and Drug Administration regulations on
reporting nutrition facts don't give companies license to make
nebulous claims elsewhere on the packaging.
A copy of the Opinion is available at https://is.gd/epEak6
LEGEND MINING: FLSA Class in Kaesemeyer Conditionally Certified
---------------------------------------------------------------
In the case, Kaesemeyer, v. Legend Mining USA Inc et al, Civil
Action No. 6:17-cv-01520 (W.D. La.), Magistrate Judge Carol B.
Whitehurst of the U.S. District Court for the Western District of
Louisiana, Lafayette Division, granted in part and denied in part
the Plaintiff's Motion for Conditional Certification.
The Plaintiff, a resident of the State of Washington, worked for
Legend USA, the American subsidiary of Legend Mining, Inc., at the
Weeks Island salt mine in Iberia. The terms and conditions of the
Plaintiff's employment are set forth in the employment contract.
The Plaintiff alleges he was told that pay dates would be the 10th
and 25th of every month. He alleges he never received a pay check
for the 10 days he worked in October 2017.
The Plaintiff filed the action alleging causes of action under the
Fair Labor Standards Act ("FLSA") for nonpayment of wages and
miscalculated regular rate, the Louisiana Wage Payment Act, and
breach of contract.
In his Complaint, the Plaintiff seeks certification of a collective
pursuant to 29 U.S.C. Section 216(b) consisting of all employees of
Legend Mining Inc., and Legend Mining USA, Inc., within the United
States of America, who worked within the three years prior to the
filing of the Complaint and were not paid overtime premiums
consisting of one and a half times their regular rate under the
FLSA.
The Plaintiff initially filed a motion for conditional
certification on Jan. 17, 2018. He contended that the Defendants
failed to pay him (and similarly situated employees) overtime
pursuant to the terms of his employment contract. On March 26,
2018, the Court denied that motion on the grounds that he had
failed to establish that the allegedly unlawful overtime
calculation reflected a general corporate policy.
Thereafter, the Plaintiff propounded his first set of Requests for
Admission and Requests for Production on the Defendants. The
Defendants provided supplemental responses on May 23, 2018, which
included a Legend USA, "Corporate Policy" for the company's
"Renumeration Calculation." While the Defendants designated the
document as "confidential" allegedly pursuant to the parties'
Protective Order, the Plaintiff filed a motion challenging the
designation. Following in camera review of the document, the Court
granted the Plaintiff's motion and held that the "Remuneration
Calculation" would not be designated as "confidential."
In his renewed motion, the Plaintiff maintains that the Defendants
calculated his overtime premium based only on the $24 hour base
rate, and did not include the $20 per hour site bonus in the
time-and-a-half overtime calculation. He alleges this is a
violation of Section 7 of the FLSA, which requires that overtime
premiums include all compensation within an employee's "regular
rate." The Plaintiff contends that Legend USA's "Remuneration
Calculation" policy as well as the Defendants' Responses to the
Plaintiff's Requests for Admissions, establish that the exclusion
of the "site bonus" from overtime calculations is a company-wide
policy.
While the Plaintiff moves the Court to certify a collective action
of all employees of Legend Mining USA, Inc., and Legend Mining,
Inc., who were subject to similar allegedly unlawful overtime
calculations, Judge Whitehurst finds that the evidence in the
record is related only to Legend USA. Accordingly, she will not
consider Legend Mining, Inc. in the conditional certification and
will refer to Legend USA as the Defendant.
The Judge finds that the Plaintiff's allegations have satisfied the
critical factor of whether a common policy exists. Through
discovery, he has presented a company-wide policy of Legend USA's
method of calculating the remuneration of all its workers. The
Judge notes that the Corporate Policy states that it relies on the
Employment Standards Act, an Act of the Legislature of Ontario
which regulates employment in the province, including wages,
maximum work hours, and workplace health and safety.
The FLSA allows a plaintiff to bring a collective action on behalf
of "similarly situated" employees, but the statute does not define
the phrase, "similarly situated." Although "similarly situated" is
not defined under the FLSA, courts have found that for conditional
certification putative class members need only show that they were
affected by a common policy, plan, pattern or practice. Further,
she says it is enough for the plaintiff to present evidence that
there may be other aggrieved individuals to whom a class action
notice should be sent, without requiring evidence that those
individuals actually intend to join the lawsuit.
The Judge also finds it necessary to allow discovery based on the
Plaintiff's proposed class definition. If the alleged illegal pay
scheme does exist, discovery based on the Plaintiff's proposed
class definition will uncover the extent and depth of such a scheme
-- i.e., whether Legend USA engaged in any violations of the FLSA
with regard to its "Site Bonus." While she recognizes the
Defendants' concerns, the Judge again notes the lenient standard
applied at the "notice stage."
At the "notice stage," courts appear to require nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan infected
by discrimination. Thus, she finds that at this stage conditional
certification is appropriate. The Defendants may later file a
motion for decertification after a more extensive discovery process
has been conducted, if it is determined at that stage that the
Plaintiff has failed to carry his burden of establishing that he
and members of the proposed class are similarly situated.
Accordingly, Judge Whitehurst granted in part the Plaintiffs'
Motion to Conditionally Certify FLSA Collective Action. The
Defendants will have 14 days from the entry of theCourt's Order to
provide the Plaintiff with a computer-readable database that
includes the names of all potential members of the FLSA Collective
Class, along with their current or last known mailing address,
email address, telephone number, and social security number.
The parties meet, confer, and thereafter submit to the Court a
joint proposal of Notice no later than 21 days from the entry of
the Court's Order. If the parties are unable to agree on the
proposed notice, the parties will file the appropriate motion(s)
with their objections within seven days.
The potential class members may opt in to this collective action
if: (1) they have mailed their consent form to counsel for the
class within 60 days after the notice and consent forms have been
mailed out to the class; or (2) they show good cause for any
delay.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/2EUYqR from Leagle.com.
Daniel Kaesemeyer, Plaintiff, represented by Charles Joseph
Stiegler, Stiegler Law Firm.
Legend Mining U S A Inc & Legend Mining Inc, Defendants,
represented by Lisa Brener -- lbrener@brenerlawfirm.com -- Brener
Law Firm & Douglas R. Kraus -- dkraus@brenerlawfirm.com -- Brener
Law Firm.
LILLY COMPANY: Fails to Pay Proper Overtime Wage, Sarrels Suit Says
-------------------------------------------------------------------
ROBERT SARRELS, Individually and on Behalf of Others Similarly
Situated v. THE LILLY COMPANY, Case No. 3:18-cv-00187-BSM (E.D.
Ark., October 4, 2018), is brought under the Fair Labor Standards
Act and the Arkansas Minimum Wage Act as a result of the
Defendant's alleged failure to pay the Plaintiff and others
overtime compensation for all hours that they worked in excess of
40 per workweek.
The Lilly Company is a foreign corporation registered to do
business in the state of Arkansas. The Company conducts business
within the state of Arkansas, operating a warehouse in Jonesboro.
The Lilly Company sells materials handling products and services
and has locations in Arkansas, Tennessee, Alabama and
Mississippi.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
Steve Rauls, 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: josh@sanfordlawfirm.com
steve@sanfordlawfirm.com
LIVERIGHT SENIOR: Sain Sues Over Fixed Daily Rate With No OT Pay
----------------------------------------------------------------
LEE SAIN, individually and on behalf all others similarly situated
v. LIVERIGHT SENIOR CARE INC., Case No. 1:18-cv-06715 (N.D. Ill.,
October 4, 2018), arises from the Defendant's alleged practice of
compensating the Plaintiff and his co-workers a fixed daily rate
for all days worked.
The Defendant also fails to pay the minimum wage for all hours
worked and the overtime rate of one and one-half times employees'
regular rate of pay for hours worked in excess of 40 per week, in
violation of the Fair Labor Standards Act and the Illinois Minimum
Wage Law, according to the complaint.
LSC is a provider of in-home care for senior citizens. LSC
maintains its principal place of business in Oak Lawn, Illinois,
and provides services, through its employees, to seniors in Cook
County.[BN]
The Plaintiff is represented by:
Alejandro Caffarelli, Esq.
Madeline K. Engel, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 N. Michigan Ave., Suite 300
Chicago, IL 60604
Telephone: (312) 763-6880
E-mail: acaffarelli@cslaw.com
m.engel@caffarelli.com
MASSACHUSETTS: Sprawling Relief Ordered on Tainted Drug Cases
-------------------------------------------------------------
Zack Huffman, writing for Courthouse News Service, reported that
expanding relief for a class of drug defendants whose cases crossed
paths with a now-disgraced chemist, the highest court in
Massachusetts agreed on Oct. 11 to throw out nearly a decade's
worth of meth convictions plus all cases from the chemist's last
four years on the job.
Though the exact number of implicated cases is unclear, previous
court filings established that there were 7,690 drug cases from the
state's laboratory in Amherst, Massachusetts, where chemist Sonja
Farak signed the drug certificate.
Ms. Farak's 11-year career at Amherst ended in 2013 when she was
arrested for stealing cocaine from the facility. As part of her
guilty plea a year later, Ms. Farak admitted that her she had made
a daily habit of treating the drug lab's evidence supply as a
personal narcotics buffet.
In addition to testing criminal evidence while under the influence
herself of various narcotics, Ms. Farak admitted that she began
stealing from police-submitted samples in 2009 and engaging in
widespread evidence tampering.
While the state wanted to vacate only the 8,000 cases where
Ms. Farak herself signed the drug certificate, the American Civil
Liberties Union said the relief should cover every sample from
Amherst that was tested during Ms. Farak's employment, whether she
signed the certificate or not.
The Supreme Judicial Court found that the latter was not
sufficiently tailored but agreed on Oct. 11 that Ms. Farak's
misdeeds implicated far more than the cases she herself handled.
"We conclude that Farak's widespread evidence tampering has
compromised the integrity of thousands of drug convictions apart
from those that the Commonwealth has agreed should be vacated and
dismissed," Associate Justice Frank Gaziano for the seven-member
court. "Her misconduct, compounded by prosecutorial misconduct,
requires that this court exercise its superintendence authority and
vacate and dismiss all criminal convictions tainted by governmental
wrongdoing."
Marking the court's third brush with the Farak case, the ruling
also singles out state prosecutors for initially masking the extent
of misconduct.
ACLU Legal Director Matt Segal highlighted these findings when
discussing the ruling this afternoon.
"For years, civil rights lawyers and our clients have been saying
that there was substantial wrongdoing in the Amherst lab scandal
not just by Sonja Farak but by prosecutors," Mr. Segal said in a
press call. "The decision confirms that we and our clients were
right."
The court ordered the state's district attorneys to work with the
ACLU and the Committee for Public Counsel Services to determine how
many more cases need to be dismissed.
"There's a lot of work to be done, but we're incredibly pleased to
have all this work to do to get people the justice they deserve and
be able to move on from this disaster," said
Rebecca Jacobstein, staff attorney for the Committee for Public
Counsel Services.
On its website, the ACLU notes that it is revising a previous
report that the nearly 8,000 cases where Ms. Farak signed drug
certificates implicates 11,000 individuals.
MDL 2672: Volkswagen Must Face Customers' RICO Claims
-----------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
federal judge refused on Oct. 3 to dismissed a RICO charge from
customers who bought or leased Volkswagens before Sept. 18, 2015,
when the company's large-scale emissions cheating became public
knowledge.
The case is In Re: Volkswagen "Clean Diesel" Marketing, Sales
Practices, and Products Liability Litigation.
A copy of the Order Granting in Part and Denying in Part
Defendants' Motions to Dismiss is available at
https://is.gd/AhBT91
MDL 2804: Forest Park to Join Opioid Epidemic Class Action
----------------------------------------------------------
Robert J. Lifka, writing for Forest Park Review, reports that
Forest Park is taking a stance on prescription opioids by joining a
growing number of municipalities in Illinois in lawsuits against
manufacturers and distributors of prescription opioids.
The village council voted 4-0 Sept. 24 to retain the services of
Edelson PC and join a class-action lawsuit seeking to recoup
damages from the defendant companies and doctors for their roles in
creating a nationwide opioid epidemic and the costs associated with
combating it. Commissioner Dan Novak was absent.
Also named is Riverside Pain Management, a former Riverside "pill
mill" that dispensed hundreds of thousands of doses of the
medications before it was forced to close in early 2017.
River Forest was among the first municipalities to file suit, doing
so in May. Oak Park was expected to take similar action last month
or this month.
"The dangers of overprescribing opioids has a major impact on human
life across the country," Mayor Anthony Calderone said. "Besides
death, there are other costs associated with this epidemic, such as
the cost of police and fire personnel who respond to overdoses.
"Additionally, this has an impact on crimes committed by people who
become addicted and, in turn, commit a variety of crimes to support
their habit. This multi-state opioid litigating hopes to reduce if
not eliminate the abuse of opioids."
Fire Chief Bob McDermott noted that Fire Department personnel have
administered Narcan 39 times in 2018 through September. Narcan, the
brand name for Naloxone, is a medication used to block the effects
of opioids, especially in overdoses. McDermott said Forest Park's
use of Narcan typically involved a heroin overdose.
The village will not pay any attorney fees or expenses unless it
achieves recovery, settlement or judgment in the opioid matter,
according to Mr. Calderone.
If the judge rules an outcome in the case, Forest Park will pay 23
percent of the net recovery if the matter is resolved
pre-complaint; 28 percent if the matter is resolved after the
complaint is filed but before a summary judgment briefing is
completed; and 32 percent of the net recovery if the matter is
resolved after summary judgment briefing is completed in either the
village's lawsuit or in any related consolidated proceeding,
according to the resolution adopted Sept. 24.
Ari Scharg -- ascharg@edelson.com -- a partner at Edelson, said
Forest Park will be a plaintiff, along with 10 or 12 more
municipalities, in a third lawsuit that will be filed in Cook
County Circuit Court within the next couple of weeks.
The first suit filed by Edelson in May named 11 municipalities; the
second, filed in July, named 13 more municipalities and one fire
protection district.
Mr. Scharg said Edelson has chosen to file the cases in state court
rather than consolidate their cases with the hundreds of cases
being consolidated as part of a multi-district litigation being
handled in U.S. District Court in Ohio, the first of which was
filed in 2016.
"Our clients feel opioids is a local issue," he said. "We want a
local judge to decide."
Mr. Calderone said he was first informed of the class action
lawsuits when Edelson representatives made a presentation at a
Proviso Municipal League meeting. He said he asked Village Attorney
Nick Peppers to investigate, leading to the Sept. 24 action.
Defendants include manufacturers Purdue Pharma, Teva
Pharmaceuticals, Jannssen Pharmaceuticals, Endo Health Solutions,
Allergan PLC, and Mallinckrodt PLC and distributors
AmerisourceBergen, Cardinal Health and McKesson. In a previous
filing, Edelson representatives said the manufacturers of drugs
such as OxyContin, Percocet and Actiq misled physicians and
consumers about the medications' safety and that distribution
companies failed to sound an alarm as the opioids flooded into
Illinois.
By specifying Riverside Pain Management, which operated in
Riverside from 2013 to 2017 and whose doctors have had their
medical licenses stripped from them by the state, Edelson's lawyers
said they believe the cases will remain in state court.
On Aug. 2 the defendants in the Cook County cases removed the
lawsuits to federal court, but Mr. Scharg said that because of the
local nature of the suit, naming individual doctors and municipal
code violations, he fully expects the cases to be remanded back to
Cook County.
"It's a delay tactic, which is what we expect," Mr. Scharg said.
"We're going to file a motion to remand as soon as possible."
The physicians identified in the lawsuit are Dr. Joseph Giacchino,
Dr. Paul Madison and Dr. William McMahon.
In the 22 months prior to having his medical license stripped by
the state, Madison allegedly prescribed about 1.6 million doses of
controlled substances out of his office in Riverside.
The lawsuits are the latest event in the national opioid epidemic
that has seen more than 165,000 Americans die from overdoses
related to opioid use through 2014, according to Edelson
representatives. They said in a previous filing that the wide use
of prescription opioids is one of the reasons "local governments
are struggling with a pernicious, ever-expanding epidemic." [GN]
MICROCHIP TECHNOLOGY: Kessler Topaz Meltzer Files Class Action
--------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP, alerts
investors that a securities fraud class action lawsuit has been
filed against Microchip Technology Inc. on behalf of purchasers of
Microchip common stock between March 2, 2018 and August 9, 2018,
inclusive.
Investors who purchased Microchip securities during the Class
Period may, no later than November 16, 2018, seek to be appointed
as a lead plaintiff representative of the class. For additional
information or to learn how to participate in this action please
visit www.ktmc.com/microchip-technology-securities-class-action
According to the complaint, Microchip is a provider of
microcontroller, mixed-signal analog and Flash-IP solutions.
The Class Period commences on March 2, 2018. On March 1, 2018,
after the close of the market for Microchip common stock, Microchip
issued a press release announcing that it had signed a definitive
agreement to acquire Microsemi Corp. ("Microsemi") for $68.78 per
share in cash.
The complaint alleges that, on August 9, 2018, Microchip announced
first quarter fiscal 2019 operating results for the quarter ended
June 30, 2018. The first quarter operating results included one
month of Microsemi's operating results. On a conference call
conducted following the earnings announcement, Steven Sanghi,
Microchip's CEO since October 1991, acknowledged that Microchip's
due diligence on Microsemi prior to the acquisition had been
inadequate and that much of Microsemi's revenue reported prior to
the merger was not supported by end user demand, but rather
resulted from excess distribution into the channel.
Following this news, Microchip's share price fell $10.67 per share,
more than 10%, to close at $87.41 per share on August 10, 2018, on
heavy trading volume.
The complaint alleges that throughout the Class Period, the
defendants failed to disclose to investors that: (1) Microchip
failed to do adequate due diligence of Microsemi's business; and
(2) as a result of the foregoing, the defendants' positive
statements about the company's business, operations, and prospects,
including positive statements about Microsemi, were materially
misleading and/or lacked a reasonable basis.
Microchip investors who wish to discuss this securities fraud class
action and their legal options are encouraged to contact Kessler
Topaz Meltzer & Check, LLP (James Maro, Jr., Esq. or Adrienne Bell,
Esq.) at (888) 299-7706 or at info@ktmc.com.
Microchip investors may, no later than November 16, 2018, seek to
be appointed as a lead plaintiff representative of the class
through Kessler Topaz Meltzer & Check, or other counsel, or may
choose to do nothing and remain an absent class member. A lead
plaintiff is a representative party who acts on behalf of all class
members in directing the litigation. In order to be appointed as a
lead plaintiff, the Court must determine that the class member's
claim is typical of the claims of other class members, and that the
class member will adequately represent the class. Your ability to
share in any recovery is not affected by the decision of whether or
not to serve as a lead plaintiff.
James Maro, Jr., Esq.
Adrienne Bell, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (888) 299-7706
(610) 667-7706
Email: abell@ktmc.com
jmaro@ktmc.com [GN]
MILLY LLC: Violates ADA, Figueroa Suit Says
--------------------------------------------
A class action lawsuit has been filed against Milly LLC. The case
is styled as Jose Figueroa on behalf of himself and all others
similarly situated, Plaintiff v. Milly LLC, Defendant, Case No.
1:18-cv-09541 (S.D. N.Y., Oct. 17, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Milly LLC designs apparel for women worldwide. It offers dresses,
tops, bottoms, outerwear, swimwear, handbags, fashion jewelry, and
accessories, as well as clothing for children. The company also
provides products for cocktails and offices, as well as weekend
casuals. It sells its products through specialty and department
stores worldwide, as well as its boutique in Madison Avenue and
online.[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
MONSANTO CO: Cancer Victim's Attorneys Challenge New Trial Bid
--------------------------------------------------------------
Helen Christoph, writing for Courthouse News Service, reported that
calling Monsanto's efforts to hide the alleged carcinogenicity of
its Roundup weed killer "reprehensible," attorneys for a school
groundskeeper dying of cancer urged a San Francisco judge late on
Oct. 1 to keep intact a $289 million jury verdict for their
client.
Curtis Hoke -- choke@millerfirmllc.com -- an attorney with The
Miller Firm who represents Dewayne Johnson, argued in court filings
on Oct. 1 that Monsanto "received a fair trial in this case and an
independent assessment by a remarkable jury who unanimously found
ample evidence that plaintiff proved all elements of his case."
"This jury's hard work should be celebrated; not swept aside," Mr.
Hoke wrote in a 43-page Opposition to Monsanto's Motion for [a] New
Trial. "There is not a scintilla of evidence to suggest that the
jury did anything but faithfully execute its duties in following
the court's instructions to give both Johnson and Monsanto its fair
and impartial consideration."
Although a state jury in August unanimously found Roundup caused
Johnson's non-Hodgkin lymphoma, Monsanto asked San Francisco
Superior Court Judge Suzanne Ramos Bolanos in September to either
overturn the verdict, order a new trial or reduce damages.
Monsanto, which German pharmaceutical giant Bayer bought this year
for $63 billion, accused another of Mr. Johnson's attorneys of
manipulating the jury into awarding excessive damages, despite a
purported lack of scientific evidence that Roundup caused his
cancer.
That attorney, Brent Wisner -- mbaum@baumhedlundlaw.com -- with
Baum Hedlund Aristei & Goldman, compared Monsanto with tobacco
companies, asked the jury to visualize unscrupulous Monsanto
executives toasting a small damages award with Champagne, and
implored them to "change the world" by awarding punitive damages to
deter unethical conduct by Monsanto.
Echoing statements made in their oppositions to a new trial, Baum
Hedlund attorney Michael Baum said in a statement: "(W)ith this
highly educated, attentive jury's verdict, we believe there is no
basis for changing the outcome."
Mr. Hoke submitted two oppositions on Oct. 1: an opposition to
Monsanto's request for a new trial, and an opposition to Monsanto's
motion for judgment notwithstanding the verdict.
U.S. and European regulators have concluded that Roundup's active
ingredient glyphosate is safe. But the World Health Organization's
International Agency for Research on Cancer (IARC) classified it in
2015 as a probable human carcinogen, triggering thousands of
lawsuits against Monsanto by non-Hodgkin lymphoma sufferers in the
United States, including Johnson's.
His attorneys argued during the four-week trial that Monsanto knew
for decades that Roundup was carcinogenic but did not include a
warning label with the product or instruct users to wear protective
clothing for fear of disrupting its roughly $5 billion annual
income from the herbicide.
Monsanto tried to show that Roundup could not have triggered
Johnson's form of non-Hodgkin lymphoma because cancer takes nearly
three years to develop, and Johnson used Roundup for just one
summer in his job as a school groundskeeper in Benicia before
developing symptoms.
"While we are sympathetic to Mr. Johnson and his family, glyphosate
is not responsible for his illness, and the verdict in this case
should be reversed or set aside," Bayer said in an emailed
statement. "The jury's decision is wholly at odds with over 40
years of real-world use, an extensive body of scientific data and
analysis, including in-depth reviews by regulatory authorities in
the U.S. and EU, and approvals in 160 countries, which support the
conclusion that glyphosate-based herbicides are safe for use and do
not cause cancer in humans.
"The plaintiff failed to prove at trial that glyphosate caused his
cancer, and his own experts admitted that the epidemiological
evidence – the best and most direct evidence on human causation
– fell well below the causation standard required under
California law."
In his brief to the court, Mr. Hoke disputed Monsanto's contention
that the company did not get a fair trial due to Wisner's conduct.
Discussing Wisner's Champagne remark, Hoke said Wisner had merely
used "rhetorical language" instead of a direct explanation to
explain the concept of punitive damages to the jury.
Mr. Hoke also rejected Monsanto's argument that the verdict be
overturned because the U.S. Environmental Protection Agency had
declared glyphosate safe, saying Monsanto lost a similar argument
in pretrial proceedings before San Francisco Superior Court Judge
Curtis Karnow.
Mr. Hoke added that the U.S. Supreme Court ruled, in Bates v. Dow
Agrosciences LLC, that "public policy favors jury findings that
highlight dangers of products not recognized by the EPA."
As cited in Mr. Hoke's opposition to Monsanto's motion for a new
trial, that 2005 Supreme Court ruling states: "By encouraging
plaintiffs to bring suit for injuries not previously recognized as
traceable to pesticides such as [the pesticide there at issue], a
state tort action of the kind under review may aid in the exposure
of new dangers associated with pesticides. Successful actions of
this sort may lead manufacturers to petition EPA to allow more
detailed labeling of their products; alternatively, EPA itself may
decide that revised labels are required in light of the new
information that has been brought to its attention through common
law suits."
Mr. Hoke added that Mr. Johnson's $33 million in compensatory
damages and $250 million in punitive damages should not be reduced
because Monsanto should be punished for ghostwriting journal
articles proclaiming glyphosate safe.
Last Wednesday, Sept. 26, the editor of Critical Reviews in
Toxicology said the journal was issuing an "Expression of Concern"
for a 2016 glyphosate safety review, after internal emails
presented during trial showed Monsanto executives edited drafts of
the article without disclosing their involvement. The article's
scientific findings remain unchanged.
"Monsanto presented no evidence and made no argument at trial to
suggest that $33 million was an excessive amount for future damages
for a slow, painful death," Mr. Hoke wrote in one of his two
opposition motions. "California law does not provide Monsanto a
discount on compensatory damages because its product is killing
Johnson rather than just injuring him."
Mr. Hoke noted that Bayer is paying Monsanto's former CEO $32.6
million -- roughly the same amount as Johnson's compensatory
damages -- to compensate him for the loss of his job in the
company's acquisition by Bayer.
"It is time," Mr. Hoke wrote, "to end this litigation and respect
the jury's judgment."
A hearing on Monsanto's motions for relief was scheduled for Oct.
10 in San Francisco.
MOTT'S LLP: Falsely Advertises Fruit Snacks, Morris Suit Claims
---------------------------------------------------------------
ADRIENNE MORRIS, individually and on behalf of all others similarly
situated v. MOTT'S LLP, a Delaware partnership, Case No.
8:18-cv-01799 (C.D. Cal., October 4, 2018), alleges that certain
products manufactured, packaged, labeled, advertised, distributed
and sold by the Defendant are misbranded and falsely advertised in
California.
The Defendant manufactures, distributes, advertises, markets and
sells a variety of purportedly natural fruit flavored products
known as the Mott's Fruit Flavored Snacks Assorted Fruit, Mott's
Fruit Flavored Snacks Berry, Mott's Fruit Flavored Snacks Tropical,
Mott's Fruit Flavored Snacks Assorted Fruit Plus Fiber, and Mott's
Fruit Flavored Snacks Fruity Rolls.
Ms. Morris alleges that the labeling of the Company's Mott's
Assorted Fruit Snacks (the "Products") is false and misleading and
the Products, thus, are misbranded under consumer protection laws.
Specifically, she contends, the Products are labeled as if they are
flavored only with natural ingredients when it in fact they contain
an undisclosed artificial flavor, malic acid, in violation of state
and federal law.
Mott's LLP is a Delaware partnership with its principal place of
business located in Plano, Texas.[BN]
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Michael T. Houchin, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
E-mail: ron@consumersadvocates.com
mike@consumersadvocates.com
- and -
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS A PROFESSIONAL CORPORATION
4100 Newport Place Drive, Suite 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattorneys.com
MRO CORP: Ct. Denies Intervenors' Bid to Receive Wilson Discovery
-----------------------------------------------------------------
The United States District Court for the Southern District of West
Virginia, Charleston Division, issued a Memorandum Opinion and
Order denying Joint Motion by Intervenors to Receive Discovery in
the case captioned THOMAS M. WILSON, SR.; DANIEL HALSEY as
ADMINISTRATOR of the ESTATE OF TAMARA HALSEY; JASON GRAZUTIES;
SANDRA SHEPPARD, ROBERT BRADLEY; and ARVADA MARTIN Individually and
on behalf of all others similarly situated, Plaintiffs, v. MRO
CORPORATION, a Pennsylvania Corporation; CIOX HEALTH, LLC, a
Georgia Corporation; and MEDI-COPY SERVICES, INC., a Tennessee
Corporation, Defendants. Case No. 2:16-cv-05279. (S.D.W. V.).
The Plaintiffs have responded to the Motion, indicating that they
have no objection to sharing discovery with the Intervenors,
subject to the previously entered Protective Order, assuming the
Court grants the Intervenors' pending Motion to Intervene. The
Defendants have also responded, objecting to the motion to receive
discovery on several grounds, including that the Court has not yet
granted the Intervenors' Motion to Intervene; consequently, their
request for discovery is premature and without precedent.
Having considered the arguments, the Court agrees with the
Defendants that the Intervenors' request for discovery is
premature. The Intervenors' motion to intervene is pending; they
are not parties to the instant action. They are not counsel for the
parties, employees of counsel working on the matter, expert
witnesses or consultants engaged by counsel, or court personnel.
Therefore, no confidential information disclosed in discovery may
be shared with them pursuant to the Protective Order entered in
this litigation.
Although the Intervenors in this case seek to intervene for reasons
more complex than simply to modify a protective order, and their
motion is made under Rule 24(a)(2) rather than 24(b), the point is
that non-parties generally must file motions to intervene under
Rule 24(b) in order to obtain discovery subject to a protective
order. When considering motions to intervene seeking the production
of protected discovery, courts uniformly approach the motions using
a two-step process, with the first step being the propriety of the
intervention.
Accordingly, for the reasons stated, the Joint Motion by
Intervenors to Receive Discovery is denied, as premature.
A full-text copy of the District Court's October 4, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/yalvxrnb from
Leagle.com.
Thomas M. Wilson, Sr., Daniel Halsey, as Administrator of the
Estate of, Tamara Halsey, Jason Grazuties, Sandra Sheppard, Robert
Bradley & Arvada Martin, individually and on behalf of all others
similarly situated, Plaintiffs, represented by Cheryl A. Fisher,
TIANO & O'DELL, Tony L. O'Dell, TIANO O'DELL & William M. Tiano,
TIANO O'DELL.
MRO Corporation, a Pennsylvania Corporation, Defendant, represented
by Courtney Devon Taylor, SCHNADER HARRISON SEGAL & LEWIS, David
Smith -- dsmith@schnader.com -- SCHNADER HARRISON SEGAL & LEWIS,
Keith E. Whitson -- kwhitson@schnader.com -- SCHNADER HARRISON
SEGAL & LEWIS & Lori Streets Muldoon, PULLIN FOWLER FLANAGAN BROWN
& POE.
CIOX Health, LLC, a Georgia Corporation;, Defendant, represented by
Devon J. Stewart -- devon.stewart@steptoe-johnson.com -- STEPTOE &
JOHNSON, Javier Flores -- jflores@mgmlaw.com -- MANION GAYNOR &
MANNING, pro hac vice & Russell D. Jessee --
russell.jessee@steptoe-johnson.com -- STEPTOE & JOHNSON.
NAMASTE TECHNOLOGIES: Faces McCormick Securities Suit in Calif.
---------------------------------------------------------------
KEVIN MCCORMICK, Individually and On Behalf of All Others Similarly
Situated v. NAMASTE TECHNOLOGIES INC., SEAN DOLLINGER, PHILIP VAN
DEN BERG and KENNETH NGO, Case No. 2:18-cv-08616 (C.D. Cal.,
October 6, 2018), accuses the Defendants of issuing or making
untrue and misleading statements that violate securities laws.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's common
shares, the Plaintiff and other Class members have suffered
significant losses and damages, the Plaintiff contends.
Specifically, the Plaintiff asserts, the Defendants failed to
disclose that: (1) Namaste had sold its wholly-owned U.S.
subsidiary to Namaste executives; (2) consequently, Namaste did not
sell its U.S. subsidiary in an arm's length transaction; and (3) as
a result, the Defendants' statements about its business,
operations, and prospects, were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
Namaste is incorporated and has its principal executive offices in
Canada. The Individual Defendants are directors and officers of
the Company. Namaste operates as a cannabis e-commerce company
with e-commerce sites in 26 countries.[BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
E-mail: lrosen@rosenlegal.com
NATIONAL AUSTRALIA: Faces Class Action Over Credit Card Insurance
-----------------------------------------------------------------
The Sydney Morning Herald reports that National Australia Bank has
been hit with a class action lawsuit alleging it sold "worthless"
credit card insurance to "potentially thousands" of customers as
the industry braces for the interim findings of the banking royal
commission.
Plaintiff law firm Slater & Gordon on September 27 said it had
filed proceedings in the Federal Court against NAB and its wealth
business, MLC, alleging they had engaged in "unconscionable
conduct" by selling insurance to card holders who were ineligible
to claim under the terms of their policy.
NAB is the first of the big four banks to face a consumer class
action over issues probed during royal commission hearings. Slater
& Gordon earlier this month said it was seeking expressions of
interest in cases against Commonwealth Bank of Australia-owned
Colonial First State and AMP over superannuation rip-offs, and
wealth giant AMP is facing five class actions from aggrieved
shareholders after admitting during the royal commission that it
charged customers for financial advice that was never given.
NAB chief legal and commercial counsel Sharon Cook said the bank
was yet to be served with any legal proceedings from Slater &
Gordon but would "consider carefully any allegations when we
receive the claim".
Slater & Gordon alleges NAB and MLC should have known the insurance
sold along with its credit cards was likely to be of little or no
benefit to the customers, who included students, and people who
were unemployed or on disability pensions.
Most were sold the insurance over the phone and were not given a
reasonable opportunity to understand the terms and conditions of
the policy, it alleged.
"Despite knowing this, NAB have continued to push the insurance
widely, reaping millions in premiums while doing so," Slater and
Gordon class actions principal lawyer Andrew Paull, Esq. said in a
statement.
"Both NAB and MLC were in much stronger bargaining positions than
any of the people they were contacting and selling this insurance
to."
Slater & Gordon highlighted the case of Jessica Purcell, who it
said was a full-time university student with casual employment when
she was "pressured" to take out consumer credit insurance.
"It was sold to me like it was something that I had to take out. I
honestly wouldn't have thought twice about it if I hadn't heard
about the class action. I would have just kept paying it," Ms
Purcell is quoted as saying.
Slater & Gordon did not specify the size of the damages it was
seeking, other than saying "millions" should be repaid.
Rival lender Commonwealth Bank last year agreed to pay back $10
million after credit card insurance was sold to 65,000 students and
unemployed people who were ineligible to claim on it.
The royal commission's top lawyers this week raised the prospect of
banning the sale of insurance through cold calls, scrapping
kickbacks, and prohibiting add-on insurance sold at car yards,
among a raft of possible changes to stamp out misconduct.
The submission, prepared by counsel assisting the commission and
published on September 26, came ahead of the commission's interim
report, which is due with the government by Septmber 30, but may be
published as soon as September 28.
NAB's shares fell 12¢ to $27.33 on September 27.[GN]
NATIONAL ENTERTAINMENT: Bid to Dismiss De Angelis FLSA Suit Nixed
-----------------------------------------------------------------
In the case, STEPHANIE DE ANGELIS, Plaintiff, v. NATIONAL
ENTERTAINMENT GROUP, LLC, Defendant, Case No. 2:17-cv-924 (S.D.
Ohio), Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division, (i) denied Defendant
National Entertainment Group, LLC's, doing business as Vanity,
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(1); and (ii) De Angelis' Motion for Judgment on the
Pleadings.
Vanity is an adult entertainment club in Columbus, Ohio. Ms. De
Angelis alleges that she worked at Vanity as a dancer from April
2016 to February 2017. She alleges that Vanity did not pay its
dancers any wages. Instead, she avers that Vanity misclassified
all of its dancers as independent contractors, rather than
employees, and that the dancers are only compensated through tips
from customers. She further alleges that at the end of each night,
Vanity took a cut from all tips made by the dancers, and the
dancers were required to split their tips with other employees.
Ms. De Angelis filed the lawsuit as a collective and class action
against Vanity on Oct. 23, 2017, alleging violations of the Fair
Labor Standards Act of 1983 ("FLSA"), the Ohio Minimum Fair Wage
Standards Act ("OMFSWA"), and the Ohio Semi-Monthly Payment Act, as
well as common law unjust enrichment by failing to pay dancers
minimum wage for all hours worked, including failure to pay
overtime.
On Jan. 2, 2018, Vanity answered the Complaint and brought
counterclaims against Ms. De Angelis for breach of contract and
unjust enrichment. The same day, it filed a Motion to Dismiss for
Lack of Jurisdiction, arguing that Ms. De Angelis never danced at
Vanity, and therefore does not have standing to bring the instant
lawsuit.
On Jan. 24, 2018, Ms. De Angelis filed a Motion for Judgment on the
Pleadings on the counterclaims. On Aug. 10, 2018, the Court held
an evidentiary hearing to determine for purposes of standing
whether Ms. De Angelis danced at Vanity.
Judge Marbley finds no reason to discredit Ms. De Angelis'
testimony that she did, in fact, dance at Vanity, and her testimony
is sufficient to find jurisdiction at this stage. He acknowledges
that Ms. De Angelis did not recall with 100% accuracy all of the
details of Vanity's operations. He is satisfied that Ms. De
Angelis danced at Vanity, at least on occasion. She thus alleges
an injury that is personal to her and has standing to bring suit.
The Judge also finds tha allowing the Defendants to bring a breach
of contract claim (or an unjust enrichment claim premised on the
same argument) for breaching an agreement that incorrectly labels
employees as independent contractors would thwart the legislative
purposes of the FLSA. To be clear, hr is not making a judgment at
this stage that the agreement purporting to classify dancers as
independent contractors is invalid, that such an agreement is an
attempt to thwart the FLSA, or that dancers are more properly
characterized as employees. The Defendants' counterclaims are both
contingent on Ms. De Angelis being successful in the lawsuit, and
thus would only come in to play after the court would make such a
finding. If he did indeed make such a finding, the counterclaims
would not be permissible. Thus, they must be dismissed for failure
to state a claim.
Finayll, the Judge finds it appropriate to exercise supplemental
jurisdiction over the counterclaims. He agrees with the Plaintiff
that the counterclaims fail to state a claim upon which relief may
be granted. The Defendants' arguments are therefore unpersuasive.
For the reasons set forth, Judge Marbley denied Vanity's Motion to
Dismiss, and granted Ms. De Angelis' Motion for Judgment on the
Pleadings as to Vanity's counterclaims.
A full-text copy of the Court's Sept. 11, 2018 Opinion and Order is
available at https://is.gd/JN4j3I from Leagle.com.
Stephanie De Angelis, Plaintiff, represented by Courtney Werning --
cwerning@meyerwilson.com -- Meyer Wilson Co, LPA, Lance Chapin --
lchapin@chapinlegal.com -- Chapin Legal Group, LLC, Matthew R.
Wilson -- mwilson@meyerwilson.com -- Meyer Wilson Co., LPA, Michael
J. Boyle, Jr. -- mboyle@meyerwilson.com -- Meyer Wilson, LPA &
Steven Charles Babin, Jr. -- sbabin@chapinlegal.com -- Chapin Legal
Group LLC.
National Entertainment Group LLC, Defendant, represented by Robert
G. Cohen -- rcohen@keglerbrown.com -- Kegler Brown Hill & Ritter &
John Paul Brody -- jbrody@keglerbrown.com -- Kegler Brown Hill &
Ritter.
NATIONSTAR MORTGAGE: Court Dismisses Kawelo Suit With Prejudice
---------------------------------------------------------------
In the case, GEORGE KAULANA KAWELO, III, and RINA CECILY KAWELO, an
individual, on behalf of themselves and all other similarly
situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC, et al.,
Defendants, Civ. No. 18-00096 JMS-KSC (D. Haw.), Judge J. Michael
Seabright of the U.S. District Court for the District of Hawaii (i)
granted the Requests for Judicial Notice; (ii) granted the Motions
to Dismiss filed by Ocwen, Nationstar, MERS, and MTGLQ; (iii)
granted in part and denied in part the Motion to Dismiss filed by
the AP Defendants and the TMLF Defendants' Joinder to that motion;
(iv) granted Ocwen's Joinder; (v) granted in part and denied in
part the AP Defendants' Joinder; and (vi) granted the Nationstar
Defendants' Joinders.
By the action against numerous Defendants, pro se Plaintiffs George
Kaulana Kawelo, III and Rina Cecily Kawelo seek to vacate a state
court judicial foreclosure and subsequent sale of real property
located at 87-2093 Pakeke Street, Waianae, HI 96706. The Complaint
names as Defendants: (1) Nationstar Mortgage LL; Mortgage
Electronic Registration Systems, Inc. ("MERS"); MTGLQ Investors, LP
("Nationstar Defendants"); Ocwen Loan Servicing, LLC; TMLF Hawaii,
LLLC, a law corporation and TMLF attorneys Peter Stone, Derek W.C.
Wong, and Jason L. Cotton ("TMLF Defendants"); Aldridge Pite, LLP,
a limited law partnership ("AP") and AP attorney Zachary K. Kondo
("AP Defendants"); process server Akoni Shannon ("Shannon"); and
all equity or persons unknown, claiming any legal or equitable
right, title, estate, lien, or interest in the property described
in the Complaint adverse to the Plaintiffs' title, or any cloud on
the Plaintiffs' title thereto and all whose true names are
unknown.
Before the Court are three Motions to Dismiss, one of which
includes a request for judicial notice; two additional "Requests
for Judicial Notice," and multiple Joinders to one or more of the
motions and requests.
On Feb. 26, 2007, the Plaintiffs obtained a loan of $410,856 from
DHI Mortgage Co., that was secured by a mortgage on the subject
property. Ocwen was the loan servicer for the Plaintiffs'
mortgage. On Nov. 25, 2014, the TMLF Defendants, on behalf of
Nationstar, filed an action in the State of Hawaii Circuit Court of
the First Circuit to foreclose on the mortgage and subject
property.
On March 28, 2016, the state court entered its Findings of Fact,
Conclusions of Law and Order Granting Nationstar's Motion for
Summary Judgment for Foreclosure Against Plaintiffs and for
Interlocutory Decree of Foreclosure. The FOF/COL found that the
Plaintiffs executed a valid note to DHI Mortgage Company that
required Plaintiff to make monthly payments. It further found that
the note was secured by a valid mortgage with MERS as the mortgagee
solely as nominee for DHI Mortgage, that MERS assigned the mortgage
to Nationstar on July 31, 2014, and that after Nov. 1, 2013, the
Plaintiffs failed to make the agreed-upon monthly payments on the
note.
Thus, the FOF/COL determined that Nationstar was entitled to
foreclose upon the subject property and to judgment and an
interlocutory decree of foreclosure as a matter of law, and
appointed a Commissioner to sell the subject property. On April
17, 2017, the state court issued an Order confirming the
foreclosure sale to Nationstar or its nominee, a Writ of
Possession, and Judgment. On July 24, 2017, the Commissioner's
Deed was recorded in the State of Hawaii Bureau of Conveyances,
transferring title to the subject property to MTGLQ, Nationstar's
nominee.
Meanwhile, on May 12, 2017, the Plaintiffs appealed the State Court
Judgment. The Hawaii Intermediate Court of Appeals ("ICA")
dismissed the Plaintiffs' Appeal on Oct. 27, 2017 for failure to
prosecute.
On Sept. 8, 2017, George filed a Chapter 7 bankruptcy action in the
U.S. Bankruptcy Court for the District of Hawaii. In his schedule
to the bankruptcy action, George represented that he did not own or
have any legal or equitable interest in any residentia property.
George also indicated that Nationstar was a secured creditor with
an interest in the subject property, and when asked if he had
claims against third parties, answered "no." On Feb. 5, 2018, the
bankruptcy court issued an Order of Discharge.
On March 14, 2018, the Plaintiffs initiated the instant action.
The Complaint asserts the following claims against all the
Defendants: "Wrongful Sale of Subject Property" (Count I); "Fraud"
(Counts II and IV); "Unfair or Deceptive Acts or Practices" (Count
III); "Breach and Failure to Act in Good Faith" (Count V); "Unjust
Enrichment" (Count VI); "Mistake" (Count VII); "Hawaii Bureau of
Conveyance Regulations Violations" (Count VIII); "Improper
Restrictions Resulting from Securitization Leaves Note and Mortgage
Unenforceable" (Count IX); "Wrongful Conversion of Note - Violation
of the Securitization Agreement" (Count X); "Breach of Contract"
(Count XI); and "Quiet Title" (Count XII). The Complaint
references multiple federal laws and regulations, but fails to
connect such references to any claims. In addition, the Complaint
includes the following notation at the bottom of each page:
"Complaint - Rights Action (42 U.S.C. Section 1983, Section 1985)
Wrongful Foreclosure."
Ocwen filed its Motion to Dismiss and Request for Judicial Notice
on April 13, 2018. The AP Defendants filed their Motion to Dismiss
and Request for Judicial Notice on April 16, 2018. On April 24,
2018, the TMLF Defendants filed a Joinder to the AP Defendants'
Motion to Dismiss. On May 14, 2018, the Nationstar Defendants
filed a Motion to Dismiss. On June 29, 2018, Ocwen filed a Joinder
to the AP Defendants' Motion to Dismiss, and the AP Defendants
filed a Joinder to Ocwen's and the Nationstar Defendants' Motions
to Dismiss. On July 2, 2018, the Nationstar Defendants filed
Joinders to Ocwen's and the AP Defendants' Motions to Dismiss and
Requests for Judicial Notice. The Plaintiffs did not file an
Opposition to any of the Motions.
On July 16, 2018, Ocwen, the Nationstar Defendants, and the AP
Defendants filed Notices and a Statement of Plaintiffs' failure to
file Oppositions to the Motions. A hearing was held on July 30,
2018, with George appearing by telephone.
Judge Seabright (i) granted the Requests for Judicial Notice; (ii)
granted the Motions to Dismiss filed by Ocwen, Nationstar, MERS,
and MTGLQ; (iii) granted in part and denied in part the Motion to
Dismiss filed by the AP Defendants and the TMLF Defendants' Joinder
to that motion; (iv) granted Ocwen's Joinder; (v) granted in part
and denied in part the AP Defendants' Joinder; and (vi) granted the
Nationstar Defendants' Joinders.
That is, the Plaintiffs' claims against Ocwen, Nationstar, MERS,
and MTGLQ are dismissed with with prejudice; George's claims
against all the Defendants are dismissed with prejudice; and the
Plaintiffs' class claims and Section 1983 claims are dismissed
without leave to amend. Rina's claims against the AP and TMLF
Defendants are dismissed with leave to amend. Rina may amend only
her claims against the AP and the TMLF Defendants, and may not add
new claims or name new Defendants. George may not amend any of his
claims.
Among other things, the Judge finds that (i) because Ocwen,
Nationstar, MERS, and MTGLQ established all three elements of the
claim preclusion test, the Plaintiffs are barred from bringing the
instant action, and because the Plaintiffs are precluded from
asserting their claims against these Defendants, amendment would be
futile; (ii) because the AP Defendants and the TMLF Defendants
failed to establish privity, the doctrine of claim preclusion does
not bar the Plaintiffs' claims against those Defendants; (iii)
George is judicially estopped from asserting his claims against all
the Defendants in the instant action because the Plaintiffs filed
their Complaint in the action a mere five weeks after George
obtained discharge of his bankruptcy action; and (iv) George's
claims belong to his bankruptcy estate, and because he does not own
those claims, he lacks standing to assert them in the action.
If Rina chooses to file a First Amended Complaint to attempt to
cure the deficiencies identified, she must so do no later than Oct.
12, 2018. Failure to file a First Amended Complaint by Oct. 12,
2018 will result in automatic dismissal of the action without
prejudice.
A full-text copy of the Court's Sept. 12, 2018 Order is available
at https://is.gd/8WiYhX from Leagle.com.
George Kaulana Kawelo, III, (e-mail: gnrkawelo@justice@yahoo.com),
an individual, on behalf of themselves and all others similarly
situated, Plaintiff, pro se.
Rina Cecily Kawelo, an individual, on behalf of themselves and all
others similarly situated, Plaintiff, pro se.
Nationstar Mortgage LLC, Mortgage Electronic Registration Systems,
Inc. & MTGLQ Investors, LP, Defendants, represented by Andrew James
Lautenbach -- alautenbach@starnlaw.com -- Starn O'Toole Marcus &
Fisher & Sianha M. Gualano -- sgualano@starnlaw.com -- Starn
O'Toole Marcus & Fisher.
Peter Stone, Attorney, Individually, Derek W.C. Wong, Attorney,
Individually, Jason L. Cotton, Attorney, Individually & TMLF
Hawaii, LLLC, a Law Corporation, Defendants, represented by Charles
R. Prather -- cprather@rcolegal.com -- TMLF Hawaii LLLC.
Ocwen Loan Servicing, LLC, as the Mortgage Servicer, Defendant,
represented by James Blaine Rogers, III --
blaine.rogers@dentons.com -- Dentons US LLP & Kalama Mark Lui-Kwan
-- kml@severson.com -- Severson & Werson.
Zachary K. Kondo, Attorney, Individually & Aldridge Pite, LLP, a
Limited Law Partnership, Defendants, represented by Justin S. Moyer
-- moyer@aldridgepite.com -- Aldridge Pite LLP.
NCIX: Faces Class Action in B.C. Over Customer Data Breach
----------------------------------------------------------
Jason Proctor, Belle Puri and Joan Marshall, writing for CBC News,
report that a Vancouver software engineer has launched a proposed
class action lawsuit in the wake of an alleged data breach
involving personal information belonging to former customers of
bankrupt computer retailer NCIX.
In a notice of civil claim filed in B.C. Supreme Court, Kipling
Warner says he gave the company his name and address along with his
debit and credit card details in the course of purchasing computer
products.
He's seeking to certify a lawsuit against NCIX and the company
tasked with auctioning off the computer firm's old equipment.
Mr. Warner claims NCIX failed to properly encrypt the information
of at least 258,000 people. And he claims the auctioneer failed to
take "appropriate steps to protect the private information on its
premises."
His lawyer, David Klein, told CBC that customers dealing with a
technology company would expect anyone who comes into contact with
their information to take steps to ensure confidentiality.
"Not only did they fail to take steps to protect the privacy," he
said. "It looks like some of the lists may have been sold to
criminals who will exploit the credit card information and very
likely engage in identity theft of NCIX customers."
A man named 'Jeff'
NCIX was a B.C.-based online computer hardware and software
retailer.
The company, officially known as Netlink Computer Inc., had retail
outlets in the Lower Mainland as well as Markham, Mississauga,
Scarborough and Ottawa before filing for bankruptcy last year.
The lawsuit follows questions which began circulating last week
with a post on cybersecurity website PrivacyFly.
The author, Travis Doering, said he arranged to meet a man named
'Jeff' who claimed on Craigslist to be selling old NCIX hardware.
Mr. Doering said 'Jeff' offered information from offline backup
servers on millions of transactions. He claimed to have seen
detailed financial information about customers and the personal tax
details of former NCIX employees.
Richmond RCMP opened an investigation into the alleged data breach
as a result of those allegations.
'Private information was stored unsecured'
According to the proposed class action lawsuit, a trustee was
appointed to take possession and make an inventory of all NCIX's
property last December.
The court documents claim NCIX collected and retained "more
information than was necessary and for longer than necessary
concerning its customers" while it was a going concern.
Mr. Warner says NCIX failed to encrypt and secure the information
before handing control of its business to the trustee.
The lawsuit claims the trustee contracted the auctioneer to dispose
of the property -- including servers -- from NCIX's estate through
a series of sales, which were open to the public.
"During the sales, private information was stored unsecured on (the
auction company's) premises," the lawsuit reads.
"Members of the public were able to see, manipulate and take away
the private information or copies of it."
'Wasted time, frustration and anxiety'
Warner is suing NCIX and the auction company for negligence and
alleged breaches of both B.C.'s Personal Information Protection Act
(PIPA) and the federal Personal Information Protection and
Electronic Documents Act (PIPEDA).
He says customers had no notice their private information was being
either sold or transferred. And he claims both the trustee and the
auctioneer should have had comprehensive policies in place to
protect data.
The provincial privacy act says organizations doing business in
British Columbia have a duty to protect the personal information
entrusted to them.
The federal regulation says personal information that is "no longer
required to fulfil the identified purposes should be destroyed,
erased or made anonymous."
The proposed class action lawsuit says millions of customers could
be affected.
Mr. Warner is suing for loss including damage to credit reputation,
mental distress, "wasted time, frustration and anxiety" and time
lost "engaging in precautionary communication" with banks, credit
agencies and credit card companies.
"It is a massive data breach," said Mr. Klein. "There's no total
amount that's stipulated in the claim. Everyone who was a customer
will have to take steps to ensure their credit card information
isn't stolen. There is the cost, the inconvenience and the worry."
The trustee for NCIX did not return calls for comment.
A representative for the auctioneer told CBC the company had only
just learned of the lawsuit and was consulting with lawyers.
None of the allegations have been proven in court. [GN]
NELNET: Faces Class Action Over Unfair Debt Collection Practices
----------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
Nelnet, which services 40 percent of U.S. student loans, uses
unfair debt-collection practices, including automated spam
messages, a class claims in Miami-Dade County Court.
A copy of the Complaint is available at https://is.gd/BDzh9x
NESTLE WATERS: Seeks Dismissal of Poland Spring Class Action
------------------------------------------------------------
Mary Ann Magnell, writing for Legal Newsline, reports that
defendant Nestle Waters North America Inc. filed a motion to
dismiss an amended complaint on July 30 regarding a lawsuit over
its Poland Spring brand of spring water over allegations the water
does not meet the "spring water" determinations as defined by the
Federal Drug Administration.
"This court should dismiss this action in deference to the primary
jurisdiction of the FDA to exercise its expertise and authority in
interpreting and applying the FDA Identity Standard and determining
whether Poland Spring meets the FDA's standard," stated the motion
to dismiss, which was filed in the U.S. District Court for the
District of Connecticut.
According to the defendant, if the court were to accept the
plaintiffs' challenge, "it would endanger the entire bottled water
regulatory process…state regulators would be stripped of all
regulatory authority if licensing could be vitiated and voided by
private lawsuits in federal court."
The lawsuit was filed by plaintiffs Mark J. Patane and others who
are described as residents of "nine Northeastern states." The suit
was dismissed without prejudice in May.
According to the motion to dismiss, the plaintiffs' amended
complaint "fails to state any viable claims as a matter of law."
"Returning to the same empty well, plaintiffs allege in their
amended complaint the very same claims that were pled in their
initial complaint and were dismissed as preempted by federal law,"
Nestle stated.
According the filing, each count of the amended complaint was
"premised on the allegation that Poland Spring is falsely labeled
as 'spring water' because it does not comply with FDA Identity
Standard."
The plaintiffs, according to the filing, questioned the competency
and the integrity of the state regulatory agencies, Maine's in
particular, in their original suit and allegedly questioned
compliance determinations that authorized the sale of this brand of
water.
In turn, the plaintiffs filed state-law claims and sought to
"permanently enjoin and declare unlawful the very conduct
authorized by state regulators."
U.S. District Court for the District of Connecticut case number
17-cv-01381 [GN]
NIBCO INC: PEX Products Fail Prematurely, Puleo Suit Alleges
------------------------------------------------------------
CESARE PULEO, individually and on behalf of all others similarly
situated v. NIBCO, INC., Case No. 2:18-cv-05555-JFB-ARL (E.D.N.Y.,
October 4, 2018), alleges that certain of the Company's products
fail prematurely due to undisclosed design and manufacturing
defects.
The case involves faulty cross-linked polyethylene ("PEX") plumbing
tubes ("PEX Tubing"), bronze, brass and polyphenylsulfone fittings,
which connect the PEX Tubing ("PEX Fittings"), and stainless steel,
copper and polybutylene crimps and clamps which join the PEX Tubing
and PEX Fittings ("PEX Clamps;" collectively, "PEX Products").
NIBCO manufactures and advertises its PEX Products for use in
plumbing systems throughout the United States. NIBCO has touted
the durability of its PEX Products, claiming that its PEX Tubing
was the highest quality PEX tubing available and that its cross
chemical bonding process gave it "superior characteristics."
NIBCO, Inc., is an Indiana corporation with its principal place of
business located in Elkhart, Indiana. NIBCO manufactures, markets
and advertises the PEX Products for use in commercial, industrial
and institutional construction, and for the residential and
irrigation markets throughout the United States and New York.
NIBCO sells various plumbing products, including the PEX Products
and other plumbing accessories.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 104
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
- and -
Jeffrey Brown, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: jbrown@leedsbrownlaw.com
OCEAN DRIVE'S: Judge Approves Class Action Over Unpaid Wages
------------------------------------------------------------
Zachary Fagenson, writing for Miami New Times, reports that a
federal judge has approved a class-action lawsuit led by Roberta
Didoni alleging Ocean Drive's Columbus Restaurant failed to pay
servers minimum wage while taking cuts from the waiters' tip pool
and forcing them to pay for credit card chargebacks -- the unpaid
tabs of patrons who walked away from their tables.
"A number of these people weren't even paid an hourly wage; they
just worked for tips," says
Mr. Didoni's attorney, Robert W. Brock II, of the Law Offices of
Lowell J. Kuvin.
According to court documents, Mr. Didoni also regularly worked in
excess of 40 hours a week.
Attorneys and owners of Columbus Restaurant did not respond to
requests for comment.
Under the Fair Labor Standards Act, restaurants are permitted to
pay tipped workers below minimum wage as long as their total hourly
pay combined with tips meets or exceeds the federal minimum wage.
Only then can an establishment decide to implement a service charge
and take a percentage to cover expenses such as credit card fees.
It remains unclear how many workers have joined the lawsuit.
However, an order by U.S. District Judge Cecilia M. Altonaga filed
September 20 indicates Mr. Didoni said in an affidavit that she
knew "of approximately 40 other servers at the restaurant who were
subject to the same policies and procedures she was."
Such issues are nothing new for Ocean Drive.
"Many of the restaurants on Ocean Drive push the envelope as far as
how little they can pay their tipped employees, and according to
our clients and our beliefs, Columbus is one them," Mr. Brock
says.
Improving the iconic thoroughfare of pastel art deco structures has
been a major initiative for the City of Miami Beach as reports of
violence, price-gouging, and out-of-code facilities have run
rampant. This past January, City Manager Jimmy Morales closed La
Baguette following claims that employees were selling alcohol to
minors, allowing customers to take alcohol off the property, and
not properly disclosing prices. Earlier this summer, the city
commission passed legislation issuing guidelines for Ocean Drive
restaurants' menus and requiring their approval by the city. Among
the stipulations are clearly listed prices, along with terms and
conditions for specials. Service charges must be spelled out in at
least 14-point font, and the name of the restaurant has to be
clearly displayed.
Meanwhile, problems at Columbus Restaurant don't seem to be
anything new. In 2013, the website the Daily Meal dubbed it the
worst restaurant in America, when it was named Colony Restaurant,
atop a list compiled and based on consistently poor internet
reviews that seemed to show a lack of good service, sanitation, and
food.
Two years later, a video emerged on YouTube of a British tourist
claiming he and his wife weren't given prices and then intimidated
into paying $300 for paella, a couple of drinks, and a beer. [GN]
OCWEN LOAN: Supplemental Brief on Unclaimed Camberis Funds Ordered
------------------------------------------------------------------
In the case, GEORGE L. CAMBERIS, et al., Plaintiffs, v. OCWEN LOAN
SERVICING LLC, Defendant, Case No. 14-cv-02970-EMC (N.D. Cal.),
Judge Eddward M. Chen of the U.S. District Court for the Northern
District of California directed the parties to submit a joint
supplemental brief on the Defendant's unopposed motion for proposed
distribution of unclaimed class settlement funds.
The Court granted final approval of the parties' settlement
agreement in the case on Dec. 7, 2015. Defendant Ocwe filed an
unopposed motion to distribute the as yet unclaimed funds --
totaling approximately $108,000 -- between the claims administrator
to pay its outstanding fees and two housing-based charity
organizations.
Judge Chen finds that the proposed distribution plan gives no
indication whether it would be practicable to distribute the
residue of the settlement fund to the class members. Without such
information, he cannot determine whether resort to a cy pres
distribution is necessary to begin with. Additionally, the
proposed distribution plan allows Ocwen to use the settlement fund
to pay the claim administrator's fees, whereas the original
settlement agreement requires Ocwen to pay the Claims
Administrator's fees and costs in addition to the class settlement.
Thus, the current proposal gives the cy pres recipients
approximately $53,000 less than the class members are entitled to
under the settlement agreement.
The Judge accordingly ordered the parties to submit a joint
supplemental brief not to exceed 5 pages by Sept. 18, 2018,
addressing whether further distribution of the unclaimed funds to
the class members would be practicable.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/h0u2Wz from Leagle.com.
George L. Camberis, individually, and on behalf of the class and
all others similarly situated & Claudia Camberis, individually and
on behalf of the class of all others similarly situated,
Plaintiffs, represented by Michael R. Brown -- MBROWN@MIKELAWMS.COM
-- Michael R. Brown APC & David James Vendler -- djvlegal@gmail.com
-- Morris Polich & Purdy LLP.
Ocwen Loan Servicing LLC, Defendant, represented by Jeff Eric Scott
-- scottj@gtlaw.com -- Greenberg Traurig, LLP, Jennifer Lee Gray,
Greenberg Traurig, LLP & Sarah Elizabeth Barrows --
barrowss@gtlaw.com -- Greenberg Traurig LLP.
James H Kirby, Individual, Objector, represented by Joseph Darrell
Palmer -- darrell.palmer@gmail.com.
OREGON: Anti-Union Groups Sue for Past Union Dues
-------------------------------------------------
Paris Achen, writing for The Daily Astorian, reports that two
anti-union groups have filed a federal lawsuit that could further
erode the finances and political power of Oregon's public employee
unions.
The U.S. Supreme Court in Janus v. AFSCME ended mandatory
collective bargaining fees in a June 27 ruling precipitated by a
challenge by an Illinois public employee.
Now, Washington-based Freedom Foundation and Virginia-based
National Right to Work Legal Defense Foundation are seeking to
force 14 local labor unions to refund some of the fees paid prior
to high court ruling.
"The case is on behalf of nonmembers who were required, or forced,
to pay fees seeking the money back that they were
unconstitutionally or illegally forced to pay," said Milton
Chappell, Esq. -- mlc@nrtw.org -- a lawyer with the National Right
to Work Legal Defense Foundation.
The 16-page complaint says the deductions violated the plaintiffs'
First Amendment right "not to associate with or financially support
a labor organization and its affiliates as a condition of
employment, or to have forced fees deducted from their wages
without their affirmative consent. . . . "
A dozen public employees from around the state are named as
plaintiffs, though the lawsuit requests class action status for all
Oregon public employees who objected to having the collective
bargaining fees deducted from their paychecks. It's unclear how
much money the plaintiffs are seeking in damages, refunds or
restitution, but some plaintiffs could seek a refund of fees paid
as far back as 2012 under the state statute of limitation.
The legal action is based on the Federal Civil Rights Act to
"redress the deprivation" of rights, according to the lawsuit.
Service Employees International Union 503 is one of the unions
targeted in the litigation.
"SEIU 503 is committed to raising standards for workers throughout
Oregon," said Melissa Unger, the union's executive director. "The
fact that the Freedom Foundation is filing this distraction lawsuit
as public workers move into bargaining is a perfect example of
their cynical attempts to undermine workers' pay and benefits.
"Anti-worker groups like the Freedom Foundation want to continue
trying bogus cases in the press, but they know the bottom line is
that we were following the law prior to Janus, and we're following
the law today."[GN]
PAPA JOHN'S: Pomerantz Law Files Class Action
---------------------------------------------
Pomerantz LLP disclosed that a class action lawsuit has been filed
against Papa John's International, Inc. ("OPKO" or the "Company")
(NASDAQ: OPK) and certain of its officers. The class action, filed
in United States District Court, Southern District of Florida, and
index under 18-cv-23924, is on behalf of a class consisting of all
persons other than Defendants who purchased or otherwise acquired
OPKO securities between September 26, 2013 and 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, against the Company and certain of its top
officials.
If you are a shareholder who purchased OPKO securities between
September 26, 2013, and September 7, 2018, both dates inclusive,
you have until November 13, 2018, to ask the Court to appoint you
as Lead Plaintiff for the class. A copy of the Complaint can be
obtained at www.pomerantzlaw.com. To discuss this action, contact
Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
OPKO purports to be a healthcare company that engages in the
diagnostics and pharmaceuticals business.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and/or misleading statements, as well as
failed to disclose material adverse facts about the Company's
business, operations, and prospects. Specifically, Defendants
failed to disclose that: (i) OPKO and its Chairman and Chief
Executive Officer ("CEO"), Phillip Frost ("Frost"), were
participants in a "pump-and-dump" scheme designed, in part, to
artificially inflate the price of various stocks, allowing
Defendant Frost, among others, to reap millions of dollars in
unlawful profits; and (ii) as a result, OPKO's public statements
were materially false and misleading at all relevant times.
On September 7, 2018, the SEC issued a press release entitled "SEC
Charges Microcap Fraudsters for Roles in Lucrative Market
Manipulation Schemes". The press release stated, in part, that the
SEC had "charged a group of 10 individuals and 10 associated
entities for their participation in long-running fraudulent schemes
that generated over $27 million from unlawful stock sales and
caused significant harm to retail investors who were left holding
virtually worthless stock." The press release named both OPKO and
Frost as defendants.
Following this news, OPKO's stock price fell $1.01 per share, or
more than 18%, before NASDAQ halted the trading of OPKO stock on
September 7, 2018, at 2:34 p.m. EDT at $4.58 per share.
Robert S. Willoughby, Esq.
Pomerantz LLP
Telephone: 888-476-6529 ext. 9980
Website: www.pomerantzlaw.com
Email: rswilloughby@pomlaw.com [GN]
PETRO INC: Court Narrows Claims in Donnenfeld Suit
--------------------------------------------------
In the case, M. NORMAN DONNENFELD, ON BEHALF OF HIMSELF AND ALL
OTHER PERSONS SIMILARLY SITUATED, Plaintiffs, v. PETRO, INC. DOING
BUSINESS AS PETRO HOME SERVICES, Defendant, Case No. 17-CV-2310
(JFB)(SIL)(E.D. N.Y.), Judge Joseph F. Bianco of the U.S. District
Court for the Eastern District of New York granted in part and
denied in part Petro's motion to dismiss the First Amended Class
Action Complaint in its entirety.
Donnenfeld brings the putative class action against Petro, a home
heating oil provider, for breach of contract, breach of the implied
covenant of good faith and fair dealing, unjust enrichment,
fraudulent inducement, and violations of New York's General
Business Law and other state consumer protection laws.
On Aug. 7, 2013, Donnenfeld entered into a fixed price Retail Fuel
Delivery and Services Agreement with Petro. Under that contract,
Petro agreed to deliver home heating oil to Donnenfeld at a fixed
price of $3.649 per gallon for the approximately one-year period
from Aug. 7, 2013 to Aug. 31, 2014. In return, Donnenfeld agreed
to obtain home heating oil exclusively from Petro during that
period. The contract provided that, if Donnenfeld's account was
cancelled for any reason during the one-year period, he would be
charged a $599 early termination fee.
On July 30, 2014, Donnenfeld continued his Fixed Price Contract for
another year. That agreement was memorialized in a form letter to
Donnenfeld from Mike Perna, the President and General Manager of
Petro's Plainview, New York office. The letter provided that, for
the approximately one-year period from Sept. 1, 2014 to Aug. 31,
2015, Petro would deliver home heating oil to Donnenfeld at a
$3.699 per gallon fixed price. It further provided that Donnenfeld
agreed to obtain home heating oil exclusively from Petro during
that period. The letter also stated that, if Donnenfeld's account
was cancelled for any reason during the one-year period, he would
be charged a $599 early termination fee.
Donnenfeld alleges that heating oil prices dropped significantly
shortly after he agreed to continue his Fixed Price Contract with
Petro. Based on Petro's representations that, under their ceiling
plan, the price he paid for heating oil would be based on market
conditions, Donnenfeld determined that he would save money by
entering into a ceiling price contract.
Accordingly, in December 2014, several months before his current
contract was due to expire, Donnenfeld called Mike Perna to change
to a ceiling price plan. To make that change, Petro charged
Donnenfeld -- and Donnenfeld paid -- a $300 early termination fee.
Donnenfeld alleges that, despite a steady decline in oil prices
throughout the term of his Ceiling Price Contract, his price per
gallon did not budge after the first two months. He alleges that
Petro has an unstated policy or practice of unilaterally and
without justification, not reducing the per gallon price to
customers who have entered into a Petro ceiling plan agreement,
even as oil prices fall, and instead, charge Petro ceiling plan
customers the top of the ceiling price per gallon on a regular
basis.
Judge Bianco finds that Donnenfeld plausibly alleges that the
Ceiling Price Contract replaced the Fixed Price Contract such that
dismissal of the claims as untimely at this stage is unwarranted.
Specifically, Donnenfeld alleges that he entered into the Fixed
Price Contract with Petro in August 2013, which he renewed in July
2014. He further alleges that he paid a $300 fee to terminate the
Fixed Price Contract before its expiration, and entered into a new
contract with Petro—the Ceiling Price Contract. These
allegations are sufficient, at the motion to dismiss stage, to
plausibly allege that the Ceiling Price Contract extinguished the
Fixed Price Contract. Accordingly, for all of the foregoing
reasons, Petro's motion to dismiss the claims as untimely is denied
without prejudice to renewal after discovery.
The Judge also finds that Petro represented that Donnenfeld's
monthly price would be based on market conditions including but not
limited to, product availability, wholesale cost and other factors.
This language, when read in the light most favorable to
Donnenfeld, can be readily interpreted as a promise that
Donnenfeld's price would decline when market prices did. The
allegations briefly detailed above are sufficient, at this stage,
to plausibly allege a breach of that promise. Accordingly, he
deneid Petro's motion to dismiss the breach of contract claim.
The factual allegations supporting Donnenfeld's breach of contract
claim are identical to those supporting his claim for breach of the
covenant of good faith and fair dealing. Accordingly, the Judge
granted Petro's motion to dismiss the claim for breach of the
covenant of good faith and fair dealing.
As to unjust enrichment claim, Donnenfeld has alleged that he was
fraudulently induced to enter into the Ceiling Price Contract.
Although that claim is insufficiently pleaded, the Judge is
allowing Donnenfeld to amend the claim. Because the claim for
fraudulent inducement has not been dismissed without leave to
amend, he declines to dismiss the unjust enrichment claim at this
time.
Donnenfeld's vague allegations do not satisfy Rule 9(b), and thus
cannot salvage the fraudulent inducement claim. Accordingly, the
motion to dismiss the fraudulent inducement claim is granted.
Because the Judge does not believe that a claim for fraudulent
inducement would necessarily be futile, however, he will grant the
Plaintiff an opportunity to amend the claim.
Given the allegations that Donnenfeld did not receive the full
value of his purchase and repeatedly overpaid for home heating oil
based on alleged deceptive practices, the Judge declines to dismiss
the GBL claims for failure to allege a monetary loss independent of
the loss caused by Petro's alleged breach of contract.
Finally, the parties do not dispute that Donnenfeld has standing to
sue Petro, and the Judge likewise finds that requirement satisfied.
Accordingly, the Judge denied the Defendant's motion to dismiss
the claims brought on behalf of customers residing outside of New
York.
For the foregoing reasons, Judge Bianco granted the Defendant's
motion to dismiss the claims for breach of the covenant of good
faith and fair dealing and fraudulent inducement. He otherwise
denied the motion. The Plaintiff is granted leave to amend the
claim for fraudulent inducement, and must do so within 30 days of
the date of the Order. A failure to do so will result in a
dismissal of that claim with prejudice.
A full-text copy of the Court's Sept. 12, 2018 Memorandum and Order
is available at https://is.gd/1o0ZjL from Leagle.com.
M. Norman Donnenfeld, on Behalf of Himself and All Other Persons
Similarly Situated, Plaintiff, represented by Bruce H. Nagel --
bnagel@nagelrice.com -- Nagel Rice, pro hac vice, Diane E. Sammons
-- dsammons@nagelrice.com -- Nagel Rice, LLP & Randee Matloff --
rmatloff@nagelrice.com -- Nagel Rice, LLP, pro hac vice.
Petro, Inc., doing business as Petro Home Services, Defendant,
represented by Maura Barry Grinalds --
maurabarry.grinalds@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP & Jonathan J. Lerner -- jonathan.lerner@skadden.com --
SSkadden, Arps, Slate, Meagher & Flom LLP.
PITNEY BOWES: Noteholders File Securities Class Action
------------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP on Sept. 25
disclosed that purchasers of Pitney Bowes Inc. (NYSE: PBI) 3.625%
Notes Due 2020 and 4.700% Notes Due 2023, issued in connection the
Pitney Bowes September 13, 2017 public offering of the Notes, have
filed a class action complaint against the company's officers and
directors for alleged violations of the Securities Exchange Act of
1933. Pitney Bowes is a global provider of mail processing
equipment and integrated mail solutions.
View this information on the law firm's Shareholder Rights Blog:
https://www.robbinsarroyo.com/pitney-bowes-inc/
Pitney Bowes Made Misleading Statements in its Prospectus
Documents
According to the complaint, Pitney Bowes filed its Prospectus with
the Securities and Exchange Commission, which formed part of the
Registration Statement, pursuant to which Pitney Bowes sold $300
million worth of 3.625% Notes Due 2020 and $400 million worth of
4.700% Notes Due 2023. What the company failed to disclose,
however, was that decreases in equipment sales in the North America
Mailing division in the third quarter 2017, which had already
reduced sales revenues in the company's SMBS segment, coupled with
decreased margins in the SMBS segment had reduced Pitney Bowes
third quarter 2017 net income and EBIT.
Pitney Bowes Investors Have Legal Options
If you would like more information about your rights and potential
remedies, contact attorney Leonid Kandinov at (800) 350-6003,
LKandinov@robbinsarroyo.com, or via the shareholder information
form on the firm's website.
Robbins Arroyo LLP is a nationally recognized leader in shareholder
rights law. The firm represents individual and institutional
investors in shareholder derivative and securities class action
lawsuits, and has helped its clients realize more than $1 billion
of value for themselves and the companies in which they have
invested. [GN]
PROSPECT MEDICAL: Court Refuses to Impose Sanctions in Guazza Suit
------------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum denying Plaintiffs' Motion to
Impose Sanctions in the case captioned NANCY GAUZZA, MELISSA
McCLOSKEY, Plaintiffs, v. PROSPECT MEDICAL HOLDINGS, INC., DELAWARE
COUNTY MEMORIAL HOSPITAL, Defendants. Civil Action No. 17-3599.
(E.D. Pa.).
The Plaintiffs move the Court to impose sanctions on Defendants
Prospect Medical Holdings and Delaware County Memorial Hospital for
the Defendants' requiring employees hired after this action
commenced to sign arbitration agreements that may preclude those
employees from participating in this litigation.
The Plaintiffs filed a Complaint bringing a Fair Labor Standards
Act claim on a collective basis and a Pennsylvania Minimum Wage Act
claim as a class action, for all hourly employees in Prospect
Hospitals during the maximum limitations period who had hands-on
patient care responsibilities and worked during one or more unpaid
meal breaks without receiving all overtime wages owed for this
work.
District courts have both the duty and the broad authority to
exercise control over a class action and to enter appropriate
orders governing the conduct of counsel and parties. However,
restrictions on parties' communications with potential class
members should address potential abuse and be based on a weighing
of the need for a limitation and the potential interference with
the rights of the parties.
The Plaintiffs make two principal arguments, both of which are
unavailing. First, they argue that all arbitration agreements
imposed after the onset of litigation are inherently confusing,
misleading, coercive, and designed to thwart the rights of
employees, and cite five cases purportedly supporting that
proposition. None of the cases, however, stand precisely for the
broad proposition for which they are cited.
Instead, each focuses on specific facts that may lead such
agreements to become improper, such as rolling out a policy in a
blitzkrieg fashion. Plaintiffs have not identified specific facts
here that suggest the arbitration agreement was rolled out in a
blitzkrieg fashion, required employees to opt-out, was introduced
during the pendency of litigation or was otherwise improper. Absent
such facts, the arbitration agreements are not per se
impermissible.
Second, the Plaintiffs try to identify potential abuses, that are
specific to the communication at issue here. They focus primarily
on the idea that the communication that is, the arbitration
agreement itself, intentionally omits known, material information
about the existence of this lawsuit and the nature of the
Plaintiffs' claims. But the communication is simply the Defendants'
standard arbitration agreement, and the Defendants represent in a
sworn affidavit that they have had a standing policy under which
they require all new hire, non-union caregivers at Delaware County
Memorial Hospital before they begin working in their roles to sign
it, and that this policy was in place for more than a year before
Plaintiffs brought this action.
Putting these two pieces together, then, the Plaintiffs appear to
assert that in order for Defendants to continue their practice of
requiring new hires to sign arbitration agreements, Defendants must
inform those new hires of this lawsuit. This argument is
unpersuasive. It is not inherently abusive for the Defendants to
continue their preexisting policy of requiring new hires to sign
arbitration agreements as a condition for employment.
In sum, the Plaintiffs have failed to show that the Defendants'
continuation of a pre-existing practice of requiring all new hires
to sign arbitration agreements qualifies as an unauthorized and
misleading communication and therefore the motion will be denied.
A full-text copy of the District Court's October 4, 2018 Memorandum
is available at https://tinyurl.com/ybfvgo5l from Leagle.com.
NANCY GAUZZA & MELISSA MCCLOSKEY, FOR THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, Plaintiffs, represented by ANDREW C. FICZKO --
aficzko@stephanzouras.com -- STEPHAN ZOURAS LLP, DAVID J. COHEN --
dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, JAMES B. ZOURAS --
jzouras@stephanzouras.com -- STEPHAN ZOURAS LLP & RYAN F. STEPHAN
-- rstephan@stephanzouras.com -- STEPHAN ZOURAS LLP.
PROSPECT MEDICAL HOLDINGS, INC. & DELAWARE COUNTY MEMORIAL
HOSPITAL, Defendants, represented by SYLVIA JEANINE CONLEY --
jconley@littler.com -- LITTLER MENDELSON, DENISE M. MAHER --
dmaher@littler.com -- LITTLER MENDELSON, MATTHEW J. HANK --
mhank@littler.com -- LITTLER MENDELSON, P.C. & WENDY SUE BUCKINGHAM
-- wbuckingham@littler.com -- LITTLER MENDELSON PC.
READING INTERNATIONAL: Faces Figueroa Class Action in New York
--------------------------------------------------------------
A class action lawsuit has been filed against Reading
International, Inc. The case is styled as Jose Figueroa on behalf
of himself and all others similarly situated, Plaintiff v. Reading
International, Inc. doing business as: Angelika Film Center,
Defendant, Case No. 1:18-cv-09581 (S.D. N.Y., Oct. 18, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Reading International, Inc. engages in the ownership, development,
and operation of entertainment and real property assets in the
United States, Australia, and New Zealand. The company operates in
two segments, Theatrical Motion Picture Exhibition (Cinema
Exhibition) and Real Estate.[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
RECREATIONAL EQUIPMENT: Faces Figueroa Suit Asserting ADA Breach
----------------------------------------------------------------
A class action lawsuit has been filed against Recreational
Equipment, Inc. The case is styled as Jose Figueroa on behalf of
himself and all others similarly situated, Plaintiff v.
Recreational Equipment, Inc., Defendant, Case No. 1:18-cv-09542
(S.D. N.Y., Oct. 17, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Recreational Equipment, Inc. designs, manufactures, and retails
outdoor gear and apparel for camping, climbing, cycling, fitness,
hiking, paddling, snow sports, and travel. It offers backpacks,
tents, sleeping bags and pads, trekking poles, gadgets,
electronics, lighting products, camp kitchen, water bottles and
treatment, camp furniture, health and safety products, dog and
climbing gears, climbing hardware and protection, mountaineering,
and climbing accessories and clothes.[BN]
The Plaintiff appears pro se.
REPETTI CAR: Cambron Suit Alleges FLSA and NYLL Violations
----------------------------------------------------------
Alfonso Franco Cambron, on behalf of himself and others similarly
situated v. Repetti Car Wash Corp. dba JNS Carwash et al., Case No.
7:18-cv-07741 (S.D. N.Y., August 24, 2018), is brought against the
Defendants for violation of the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff, Alfonso Franco Cambron, was hired by the Defendants
to work as a non-exempt general helper at Defendants' car wash
known as "JNS Carwash" located at 148 Broadway, Hawthorne, New York
10532.
The Defendant, Repetti Car Wash Corp., was and is a domestic
business entity organized and existing under the laws of the State
of New York, with a principal place of business located at 148
Broadway, Hawthorne, New York 10532. [BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
708 Third Avenue - 6th Floor
New York, NY 10017
Tel: (212) 209-3933
Fax: (212) 209-7102
E-mail: pcooper@jcpclaw.com
RYAN SCOTT LLC: Itayim Files Class Action Under TCPA
----------------------------------------------------
Sam Itayim, individually and on behalf of all others similarly
situated v. Ryan Scott, LLC dba Exit Ryan Scott Realty, Case No.
0:18-cv-62021 (S.D. Fla., August 27, 2018), is brought against the
Defendant for violation of the Telephone Consumer Protection Act.
This case challenges Defendant Exit Realty's practice of sending
unsolicited text messages to real estate agents that are not
affiliated with Exit Realty, promoting Exit Realty's realty
brokerage services.
The Plaintiff is a resident of Broward County, Florida.
The Defendant Ryan Scott, LLC is a Florida limited liability
company with a principal place of business in this District. Exit
Realty is a realty brokerage focused on creating an agent-centric
brokerage that provides "Great Training" to agents. [BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Tel: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
SALOV NORTH: 9th Cir. Affirms Approval of Kumar Suit Settlement
---------------------------------------------------------------
In the case, ROHINI KUMAR, an individual, on behalf of herself, the
general public and those similarly situated, Plaintiff-Appellee, v.
SALOV NORTH AMERICA CORP., Defendant-Appellee, v. THEODORE H.
FRANK, Objector-Appellant, Case No. 17-16405 (9th Cir.), the U.S.
Court of Appeals for the Ninth Circuit affirmed the district
court's approval of the settlement agreement.
The dispute arises from the district court's approval of a
nationwide class action settlement between a class of purchasers of
Filippo Berio olive oil and the manufacturer of the olive oil,
Salov. On appeal, Theodore Frank, a non-participating class member
and objector, challenges the approval of the settlement agreement.
Salov contends that Frank has no standing.
The Court holds that Frank has Article III standing to challenge
the settlement agreement, assuming that Frank ultimately paid a
higher price for the olive oil than he would have without "Imported
from Italy" on the label. It finds that the district court did not
abuse its discretion in approving the settlement agreement. The
court properly considered and applied the relevant Hanlon factors
in its determination that the settlement was fair, reasonable, and
adequate. It considered the strength of the Plaintiffs' case and
the risk involved with further litigation, noting that Salov had a
legitimate defense and that it was not the strongest case it had
ever seen.
The district court also noted that proceeding to trial would be
costly given the need for expert testimony, and that the best
potential outcome at trial would not exceed the recovery per bottle
offered by the settlement. Further, it recognized that the
litigation was hard fought and that class counsel reached an
excellent result for the class, including achieving the class's
non-monetary goal of getting the Defendants to improve their
practices.
Because there is no strong showing that the district court's
decision was a clear abuse of discretion, the Court affirmed.
A full-text copy of the Court's Sept. 11, 2018 Memorandum is
available at https://is.gd/waHLsU from Leagle.com.
SCHOLASTIC INC: Violates Disabilities Act, Says Figueroa Action
---------------------------------------------------------------
A class action lawsuit has been filed against Scholastic Inc. The
case is styled as Jose Figueroa on behalf of himself and all others
similarly situated, Plaintiff v. Scholastic Inc., Defendant, Case
No. 1:18-cv-09543 (S.D. N.Y., Oct. 17, 2018).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Scholastic, Inc. publishes and distributes books for children in
the United States. The company creates educational and entertaining
materials and products for use in school and at home, including
children books, textbooks, magazines, technology-based products,
teacher materials, television programming, film, videos, and toys.
It distributes its products and services through a variety of
channels, including school-based book clubs, school-based book
fairs, school-based and direct-to-home continuity programs, retail
stores, schools, libraries, the Internet, and television
networks.[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
SEA CREST: Skudin Files Suit Over Illegal Wage Practices
--------------------------------------------------------
LARISA SKUDIN, an behalf of herself and all others similarly
situated v. SEA CREST ACQUISTION I, LLC d/b/a SEA CREST NURSING AND
REHABILITATION CENTER, Case No. 520029/2018 (N.Y. Sup. Ct., Kings
Cty., October 5, 2018), accuses the Defendant of engaging in
illegal and improper wage practices, in violation of the New York
Labor Law.
These practices include: (a) requiring non-exempt hourly paid
workers to perform work without compensation' outside of their
scheduled shift; (b) failing to pay Workers at their straight or
agreed upon rate for all hours worked under 40 hours in a week; and
(c) failing to provide accurate wage statements, Ms. Skudin tells
the Court.
Sea Crest offers comprehensive, state-of-the-art short-term,
sub-acute, and long-term rehabilitation and nursing services. The
Defendant employed the Plaintiff at its facility located in
Brooklyn, New York.[BN]
The Plaintiff is represented by:
Louis Ginsberg, Esq.
THE LAW FIRM OF LOUIS GINSBERG, P.C.
1613 Northern Boulevard
Roslyn, NY 11576
Telephone: (516) 625-0105
E-mail: lg@louisginsberglawoffices.com
SERCO INC: Former Call Center Employee Files FLSA Class Action
--------------------------------------------------------------
Karen Kidd, writing for St. Louis Record, reports that a former
call center employee recently filed a Fair Labor Standards Act
(FSLA) collective class action against Clayton-based Serco Inc.,
claiming the company required her and others to work overtime
unpaid.
"Specifically, Serco has enforced a uniform company-wide policy
wherein it improperly required its hourly call-center employees --
plaintiff and the putative class members -- to perform work
off-the-clock and without pay," Mar'Bella Sandoval said in her
collective class action lawsuit filed Sept. 17 in the U.S. District
Court for the Eastern District of Missour. "Serco's company-wide
policy has caused plaintiff and the putative class members to have
hours worked that were not compensated and further created a
miscalculation of their regular rate(s) of pay for purposes of
calculating their overtime compensation each workweek."
Ms. Sandoval claims that she and other class members routinely
worked more than 40 hours per week but were not paid overtime.
"Serco has knowingly and deliberately failed to compensate
plaintiff and the putative class members for all hours worked each
workweek and the proper amount of overtime on a routine and regular
basis during the relevant statutes of limitation," the lawsuit
said. "Plaintiff and the putative class Members did not (and
currently do not) perform work that meets the definition of exempt
work under the FLSA or Missouri state law."
Ms. Sandoval filed the complaint on behalf of all current and
former hourly call-center workers employed by Serco during relevant
statutes of limitation through the final disposition of the case.
Sandoval seeks to recover overtime wages, liquidated damages,
attorneys' fees and costs.
The case is assigned to U.S. District Judge John Andrew Ross.
The case was filed on Ms. Sandoval's behalf by Texas attorneys Clif
Alexander, Austin W. Anderson with Anderson Alexander PLLC and
Sarah Jane Hunt with Thomas E. Kennedy III LC in St. Louis under
case no. 4:18-cv-01562-JAR [GN]
SETERUS INC: Violates FDCPA, Albers Suit Says
----------------------------------------------
Carrie Albers, on behalf of herself and all others similarly
situated v. Seterus, Inc., Case No. 2:18-cv-02440 (D. Kans., August
24, 2018), is brought against the Defendant for violation of the
Fair Debt Collection Practices Act and the Kansas Consumer
Protection Act.
This is a consumer protection action brought by the Plaintiff and
others similarly situated to obtain redress from Seterus'
systematic use of unlawful and unfair debt collection practices to
collect upon residential consumer mortgage loans.
The Plaintiff is a resident of Wyandotte Country, Kansas.
The Defendant Seterus is a "specialty mortgage servicer" that
specializes in collecting delinquent and/or high risk residential
mortgage loans. [BN]
The Plaintiff is represented by:
Brittany A. Boswell, Esq.
SIMMONS HANLY CONROY
112 Madison Avenue
New York, NY 10016-7416
Tel: (212) 784-6400
Fax: (212) 213-5949
E-mail: bboswell@simmonsfirm.com
SINCLAIR BROADCAST: Bon-Ton Sues Over TV Commercial Price-fixing
----------------------------------------------------------------
THE BON-TON STORES, INC., on behalf of itself and all others
similarly situated v. SINCLAIR BROADCAST GROUP, INC.; TRIBUNE MEDIA
COMPANY; and JOHN DOES 1-5, Case No. 1:18-cv-06758 (N.D. Ill.,
October 5, 2018), stems from a price-fixing conspiracy among the
Defendants to fix, raise, maintain, and/or stabilize the prices of
local television advertising time.
The Defendants are competitors in the market for local spot
television advertising, according to the complaint. Instead of
competing on price to win business, the Defendants conspired to
reduce or eliminate competition by sharing information and
coordinating pricing in various Designated Market Areas ("DMAs"),
resulting in artificially inflated prices for local spot
advertising in violation of federal antitrust laws, the Plaintiff
alleges.
Sinclair Broadcast Group, Inc., is a Maryland corporation with its
principal executive offices located in Hunt Valley, Maryland.
Sinclair owns 192 stations in 89 markets, the largest number of
local television stations of any broadcast company in the United
States. Sinclair also owns and operates Tennis Channel, Tennis
Magazine, and Tennis.com, along with digital media products and
technical services companies that supply and maintain broadcast
transmission systems. Sinclair distributes original programming,
local news, and programming provided by third-party networks and
syndicators.
Tribune Media Company is a Delaware corporation with its principal
executive offices located in Chicago, Illinois. Tribune is a media
company with a diverse portfolio of television and digital
properties, including 42 local television stations in 33 markets.
Tribune also owns WGN America, Antenna TV, Tribune Studios,
WGN-Radio, and a minority stake in the TV Food Network. The
identities of the Doe Defendants are currently unknown to the
Plaintiff.[BN]
The Plaintiff is represented by:
Adam J. Levitt, Esq.
John E. Tangren, Esq.
DICELLO LEVITT & CASEY LLC
Ten North Dearborn Street, Eleventh Floor
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: alevitt@dlcfirm.com
jtangren@dlcfirm.com
- and -
Gregory S. Asciolla, Esq.
Karin E. Garvey, Esq.
Robin A. van der Meulen, Esq.
Brian Morrison, Esq.
Jonathan Crevier, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: gasciolla@labaton.com
kgarvey@labaton.com
rvandermeulen@labaton.com
bmorrison@labaton.com
jcrevier@labaton.com
SMILEY DENTAL: Rodriguez Seeks to Recover Overtime Pay Under FLSA
-----------------------------------------------------------------
JANIE RODRIGUEZ ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED v. SMILEY DENTAL MANAGEMENT COMPANY, LLC; SD-BRAUN, P.C.;
SD-POTRANCO, P.C.; SD-DEZAVALA, P.C.; SD-ROOSEVELT, P.C.;
SD-933SCHERTZ, P.C.; SD-4315FREDERICK, P.C.; LYNH PHAM; AND THANG
"KIDO" PHAM, Case No. 5:18-cv-01047-DAE (W.D. Tex., October 5,
2018), seeks to recover alleged unpaid overtime, statutory
liquidated damages, reasonably attorneys' fees and costs pursuant
to the Fair Labor Standards Act.
Smiley Dental Management Company, LLC, is a Texas corporation.
SD-Braun, P.C., SD-Dezavala, P.C., SD-Roosevelt, P.C.,
SD-933SCHERTZ, P.C. and SD-4315FREDERICK, P.C., are Texas
corporations with addresses in San Antonio, Texas. The Individual
Defendants are owners, officers, managers or agents of the
Defendant Corporations.
The Defendants provide dental and orthodontic services to patients
at their various locations.[BN]
The Plaintiff is represented by:
Melissa Morales Fletcher, Esq.
Allison S. Hartry, Esq.
THE MORALES FIRM, P.C.
6243 IH-10 West, Suite 132
San Antonio, TX 78201
Telephone: (210) 225-0811
Facsimile: (210) 225-0821
E-mail: Melissa@themoralesfirm.com
ahartry@themoralesfirm.com
SONY: Estate of Rick Nelson Files Royalties Class Action
--------------------------------------------------------
Gene Maddaus and Chris Willman, writing Variety, report that the
estate of 1950s teen idol Rick Nelson hit Sony Music Entertainment
with a class action lawsuit on Sept. 25, alleging that it
improperly withholds a portion of artists' royalties from
international streaming revenue.
Rick Nelson LLC filed the complaint in U.S. District Court in New
York. The complaint alleges that Sony charges itself intercompany
fees of up to 68% on foreign streaming revenues, diminishing the
pot of money available to artists.
The suit seeks to represent hundreds or thousands of Sony artists
who are entitled to foreign streaming revenues. The suit alleges
that Sony collects overseas revenue through its wholly owned
foreign affiliates, and then assesses an intercompany charge before
distributing royalties to artists. The suit alleges that this
violates the terms of Mr. Nelson's contract, and those signed with
other artists.
Sony Music declined to comment on the suit.
Mr. Nelson, who died in 1985 at age 45, rose to fame as a child
actor, starring alongside his real-life parents on "The Adventure
of Ozzy and Harriet" on TV and radio in the late 1940s and 1950s.
"Ricky" turned his attention mostly to music after topping the
charts in 1958 with "Poor Little Fool." His other smashes included
"Travelin' Man," "Hello Mary Lou" and the appropriately titled
"Teen Age Idol" before his recording career faded in the mid-'60s.
He had a comeback in 1972 with the top 10 hit "Garden Party," a wry
song written about his experience rebranding himself as a more
mature country-rocker.
It was in the last part of his career that Mr. Nelson recorded for
Epic, which is now controlled by Sony; most of his early hits were
with the Imperial or Decca labels and remain with the Universal
Music Group. [GN]
SOUTHERN ILLINOIS UNIVERSITY: Ahad Class Certification Denied
-------------------------------------------------------------
In the case, SAJIDA AHAD, MD, on behalf of herself and all others
similarly situated, Plaintiff, v. BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY and SIU PHYSICIANS & SURGEONS, INC.,
Defendants, Case No. 15-cv-3308 (C.D. Ill.), Judge Sue E.
Myerscough of the U.S. District Court for the Central District of
Illinois, Springfield Division, denied the Plaintiff's Motion for
Rule 23 Class Certification.
Ahad, M.D. brings the suit alleging gender-based pay discrimination
on behalf of herself and a class of female physicians employed by
the Defendants: the Board of Trustees of Southern Illinois
University and SIU Physicians & Surgeons, Inc. She alleges that
the Defendants paid her and other female physicians substantially
lower compensation than male physicians for the same or similar
work. The Plaintiff brings her claims pursuant to the Illinois
Equal Pay Act, Title VII, and the Illinois Civil Rights Act. The
Defendants deny these allegations. On Sept. 29, 2017, the Court
entered an opinion granting the Plaintiff's Motion for Conditional
Certification Under FLSA Collective Action.
SIU School of Medicine operates under the authority of Defendant
SIU Board of Trustees. The Plaintiff, a female physician, worked
for the Defendants from approximately July 28, 2008 to March 21.
The Defendants' physician faculty hold one of three tenure-eligible
academic ranks: Assistant Professor, Associate Professor, and
Professor. All physician faculty are expected to perform certain
minimum duties in three categories: research, teaching, and service
(including clinical service).
The Defendants employ physicians in different School of Medicine
Departments. A Master Agreement between SIU School of Medicine and
SIU Healthcare requires SIU School of Medicine employees to provide
services for SIU Healthcare. It also requires that all physician
members of SIU Healthcare and the SIU School of Medicine be
compensated pursuant to the "Compensation Plan." The Compensation
Plan serves as the governing document for compensation, and it aims
to provide for compensation that is market based and represents
fair and reasonable compensation for the efforts of faculty members
but without regard to the payor for a particular patient or the
patient's ability to pay. On its face, the Compensation Plan is
undoubtedly gender neutral.
The Dean of SIU School of Medicine and the CEO of SIU Healthcare
are responsible for the administration of the Compensation Plan.
Currently, the SIU School of Medicine Dean and Provost Dr. Jerry
Kruse is also the CEO of SIU Healthcare. Under the Compensation
Plan, the Defendants' physician faculty members can receive three
types of compensation, all of which must be paid in accordance with
the Compensation Plan: (1) an academic base salary paid by SIU
School of Medicine; (2) a clinical base salary paid by SIU
Healthcare; and (3) a clinical incentive income paid by SIU
Healthcare. Academic base salary compensates physician faculty for
their academic and administrative duties and is a fixed, monthly
amount.
The clinical base and clinical incentive income make up the
clinical compensation. Clinical compensation is calculated using a
formula that assigns "Relative Value Units" ("RVUs") to the
services the physician provided. It is determined by each
individual physician's time devoted to clinical practice, types and
amount of procedures performed, specialty, and participation in
call schedules. The clinical compensation is also subject to
caps.
Hiring also follows a standardized process. The Defendants
typically hire faculty physicians for the purpose of filling a
specific sub-specialty need. When they need to fill a position,
the Department Chair completes a recruitment form for the position
identifying a salary range, which should be determined initially,
in part, using data from the American Association of Medical
Colleges ("AAMC"). Prior to hiring, however, the recruitment
tracking form must be reviewed and approved by the Department of
Human Resources, SIU's Affirmative Action office, SIU Healthcare,
the Office of Management and Budget, and the Dean and Provost.
Once candidates are selected, they negotiate their compensation
with their Department Chair. The Department Chair considers the
physician's background and qualifications, as well as market
factors, and makes a compensation recommendation. To determine the
initial academic base salary, the Department Chair may consider
specific fellowship training, external industry bench-mark data
from the AAMC, specific job responsibilities, level of education
and training, competing job offers, and availability of third-party
financial support for the position. This recommendation is
reviewed again by SIU's Affirmative Action office, SIU Healthcare,
the Office of Management and Budget, and the Dean and Provost.
After a physician accepts employment with the Defendants, they
execute a Member Practice Agreement which identifies the
physician's duties and responsibilities and all compensation and
fringe benefits. New physicians also execute an Annual
Compensation Agreement that reflects the agreed academic base
salary and the anticipated clinical compensation for the coming
year.
Going forward, physicians' compensation is reviewed annually. As
with initial compensation, Department Chairs recommend compensation
adjustments for physicians in their departments. Those
recommendations are subject to review and approval by the Dean.
The Compensation Committee also reviews physicians' compensation.
The Compensation Committee has the authority to adopt or reject the
Department Chairs' recommendations as to the clinical base.
Clinical base for the current fiscal year is estimated.
The Committee considers the plans annually in light of the overall
charitable, educational, and educational objectives of SIU P&S and
its consistency with market-based compensation. Additionally, the
Dean has independent authority to increase tenure-track physicians'
compensation by 10% without additional review by the Compensation
Committee.
The Compensation Plan does not establish the factors to be
considered in developing a medical school salary. Each year all
physicians also execute a new Annual Compensation Agreement
reflecting anticipated compensation for the coming year. Pursuant
to the Compensation Plan, the process of determining annual
compensation is accomplished through a similar process as
described.
The Plaintiff alleges that this process has resulted in
discriminatory pay practices whereby female physicians are paid
significantly less than similarly situated male physicians. While
employed by the Defendants, the Plaintiff's job duties changed
multiple times and her academic base salary was not increased.
Additionally, she voiced concerns with her division chief and
multiple female physicians that the Defendants did not give females
leadership positions and equal opportunities to succeed. The
Plaintiff also formally complained about pay discrimination to the
Defendants' Executive Director of Human Resources, Penny McCarthy.
McCarthy's notes indicated that the Plaintiff believed that there
may be a perception among the female faculty that there is a pay
disparity and that the school faculty was a "boys club." The
Plaintiff did not provide affidavits of any putative class members.
The Defendants argue that the process of determining compensation
is highly individualized.
The Plaintiff and the Defendants have both hired experts to analyze
pay and determine whether a statistically significant pay disparity
exists among similarly situated female and male physician faculty.
The experts have reached opposite conclusions. Both experts
concluded that a multiple regression analysis, a form of
statistical modeling used to show the relationship between a
dependent variable (compensation) and independent variables (such
as gender, department, etc.), is the proper method to analyze the
data. However, the two experts reached different conclusions on
how the model should be constructed.
The Plaintiff moves for class certification of her Illinois Equal
Pay Act, Title VII, and Illinois Civil Rights Act claims pursuant
to Federal Rule of Civil Procedure 23. She argues the putative
class meets the requirements of Rule 23(a) and can be certified
under Rule 23(b)(2) for equitable relief and/or under Rule 23(b)(3)
as a class created by predominance and superiority for damages.
Alternatively, she requests certification under Rule 23(c)(4) of
any issues the Court deems appropriate.
The Defendants oppose class certification and argue that
compensation decisions are too individualized for class treatment.
They argue that the Plaintiff has not met her burden to show
commonality or typicality pursuant to Rule 23(a) and predominance
or superiority pursuant to Rule 23(b)(3), and that class treatment
under Rule 23(b)(2) is not appropriate because each class member
would be entitled to an individualized award of money damages.
While Judge Myerscough finds that the Plaintiff has met her burden
to show numerosity and adequacy of representation, the Plaintiff
has not met her burden to show commonality or typicality.
Accordingly, she denied the Plaintiff's Motion for Class
Certification.
The Judge finds that the Plaintiff has not shown how the seemingly
gender-neutral Compensation Plan could have created the disparate
compensation. First, the discretion given to Department Chairs by
the Plan does not, without more, establish a common question
capable of classwide resolution. Second, the Plaintiff has not
shown that discretion exercised by one or a few high-level
individual(s) could have created the disparate impact. Third, the
Compensation Plan does not create the necessary "glue" to connect
the alleged disparate treatment to one class-wide subjective
decision maker. Fourth, the Plaintiff's statistical evidence is
not sufficient to turn the tides in the analysis either.
Accordingly, the Court finds that Plaintiff has not met her burden
of proving commonality pursuant to Rule 23(a)(2).
Because the Judge has found that the Plaintiff has not identified a
common policy that is the cause of the alleged disparate impact,
the Plaintiff cannot demonstrate that her claim is typical of the
claims of other class members.
A full-text copy of the Court's Sept. 12, 2018 Opinion is available
at https://is.gd/SX2mKo from Leagle.com.
MD Sajida Ahad, on behalf of herself and all others, Plaintiff,
represented by Michael F. Brown -- mbrown@dvglawpartner.com -- DVG
LAW PARTNER, Ryan Odell Estes -- restes@jbryanwoodlaw.com -- WOOD
LAW OFFICE, LLC & James Bryan Wood -- bryan@jbryanwoodlaw.com --
WOOD LAW OFFICE, LLC.
Board of Trustees of Southern Illinois University & SIU Physicians
& Surgeons Inc, Defendants, represented by Thomas H. Wilson --
twilson@heplerbroom.com -- HEPLER BROOM LLC & Jessica Leigh Galanos
-- jgalanos@heplerbroom.com -- HEPLER BROOM LLC.
STATE FARM: Settle Wants to Stop Unsolicited Telemarketing Calls
----------------------------------------------------------------
PATRICIA SETTLE, individually and on behalf of all other persons
similarly situated v. STATE FARM FIRE AND CASUALTY COMPANY, Case
No. 1:18-cv-24088-UU (S.D. Fla., October 4, 2018), seeks to stop
the Defendant's alleged practice of making unsolicited
telemarketing calls to the telephones of consumers nationwide.
The Defendant conducted wide scale telemarketing campaigns and
repeatedly made unsolicited calls to consumers' telephones -- whose
numbers appear on the National Do Not Call Registry -- without
consent, and with a pre-recorded voice, all in violation of the
Telephone Consumer Protection Act, the Plaintiff alleges.
State Farm Fire and Casualty Company is national group that
provides financial and insurance services based in Bloomington,
Illinois.[BN]
The Plaintiff is represented by:
Raymond R. Dieppa, Esq.
FLORIDA LEGAL, LLC
261 Northeast First St., Suite 502
Miami, FL 33132
Telephone: (305) 901-2209
Facsimile: (786) 870-4030
E-mail: ray.dieppa@floridalegal.law
- and -
W. Craft Hughes, Esq.
Jarrett L. Ellzey, Esq.
HUGHES ELLZEY, LLP
Galleria Tower I
2700 Post Oak Boulevard, Suite 1120
Houston, TX 77056
Telephone: (713) 554-2377
Facsimile: (888) 995-3335
E-mail: craft@hughesellzey.com
jarrett@hughesellzey.com
STATE FARM: Sued for Undervaluing Homes Burned in 2017 Wildfires
----------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
federal class action accuses State Farm Insurance and Verisk
Analytics dba Insurance Services Co. of conspiring to undervalue
homes burned in the October 2017 Wine County wildfires that
destroyed 8,920 buildings and damaged 756.
STATOIL USA: Court Grants Bid to Dismiss Amended Marbarker Suit
---------------------------------------------------------------
In the case, ALAN MARBAKER; CAROL MARBAKER; JERRY L. CAVALIER; and
FRANK HOLDREN, Plaintiffs, v. STATOIL USA ONSHORE PROPERTIES, INC.
n/k/a EQUINOR USA ONSHORE PROPERTIES INC. Defendant, Case No.
3:17-CV-001528 (M.D. Pa.), Judge A. Richard Cupto of the U.S.
District Court for the Middle District of Pennsylvania
Each of the Plaintiffs entered into Paid-Up Oil and Gas Leases with
companies in which Statoil acquired a thirty-two and a half percent
(32.5%) interest some time before November 2008. Such leases were
held by many individuals in the region. A SEC filing by Statoil
ASA, for which Statoil was a subsidiary at the time, shows that as
of November 2008, Statoil had an interest in at least 32,000 oil
and gas leases in Pennsylvania, West Virginia, New York, and Ohio.
Several lessors, including the Plaintiffs, have alleged Statoil
breached their leases by underpaying royalties.
On April 2, 2015, the Plaintiffs filed a class arbitration demand
against Statoil, alleging Statoil systematically underpaid oil and
gas royalties in violation of its Lease agreements, Marbaker v.
Statoil USA Onshore Properties, Inc., No. 15-700 (M.D. Pa. Apr. 9,
2015). The Plaintiffs sought to represent all other lessors who
entered into a lease in the Marcellus Region in which Statoil has
acquired an interest that, by its terms, requires royalties to be
calculated based on 'revenue realized' or 'gross proceeds' and who,
within the past six years, have received royalty payments from
respondent. Concurrently with the arbitration action, the
Plaintiffs filed a declaratory action in the Court to determine
whether their Lease agreements permitted class action arbitration.
By June 2015, the Plaintiffs executed a mediation protocol with
Statoil and agreed to dismiss their declaratory action, which was
subsequently dismissed without prejudice on June 5, 2015. At some
point after filing their motion to dismiss in the Canfield action,
Statoil "abandoned" settlement discussions with the Plaintiffs. On
Aug. 25, 2017, the Plaintiffs re-filed their federal declaratory
action. Shortly thereafter, in late September 2017, Statoil
demanded that the Plaintiffs destroy information they received
during the mediation process.
In January 2016, a set of leaseholders ("Canfield Plaintiffs")
brought a class action lawsuit, Canfield v. Statoil USA Onshore
Properties, Inc., No. 16-85 (M.D. Pa. Mar. 22, 2017), against
Statoil that raised almost identical claims as those in the
Marbaker arbitration. The Canfield Plaintiffs, unlike the Marbaker
Plaintiffs, were able to proceed in federal court because their
leases did not contain an arbitration clause.
Statoil moved to dismiss the Canfield action. Judge Mannion,
presiding over the case, dismissed the majority of the claims
alleged. However, the Canfield Plaintiffs were left with at least
one viable claim. This triggered settlement discussions between
Statoil and the Canfield Plaintiffs. On July 19, 2017, the counsel
for the Marbaker Plaintiffs reached out to the counsel for the
Canfield Plaintiffs and offered to coordinate settlement
discussions, but counsel for the Canfield Plaintiffs rejected the
offer.
By October 2017, the Canfield Plaintiffs reached an agreement in
principle to settle the case. On March 27, 2018, the Canfield
Plaintiffs moved for preliminary approval of their negotiated
class-wide settlement. The Marbaker Plaintiffs have filed
objections to the proposed settlement.
On Aug. 25, 2017, the Marbaker Plaintiffs, filed a new Complaint
renewing its request for a declaration that they may proceed as a
class in arbitration. Thereafter, on Oct. 6, 2017, Statoil filed a
Motion to Stay the proceeding until the case, Chesapeake
Appalachia, L.L.C. v. Scout Petroleum LLC, which involved a dispute
over whether similar language in an arbitration clause for an oil
and gas lease allowed for class arbitration, was decided by the
Third Circuit ("Scout II"). On March 30, 2018, the Marbaker
Plaintiffs filed a Motion to Consolidate the Marbaker and Canfield
actions which was subsequently denied on June 14, 2018.
Shortly after the Third Circuit decided Scout II, Statoil filed a
Motion to Dismiss the Complaint, which was later terminated after
the Marbaker Plaintiffs filed an Amended Complaint on May 1, 2018.
The Amended Complaint requested declaratory relief on two counts:
(1) that Statoil waived its right to enforce the arbitration
clauses in their leases by invoking judicial machinery and (2) that
class arbitration is available under their Leases.
Statoil filed a new Motion to Dismiss on May 15, 2018.
Judge Cupto concludes that because the Plaintiffs request
declaratory relief for a hypothetical scenario that calls upon the
Court to render an advisory opinion, Count I of their Amended
Complaint is not ripe and will be dismissed without prejudice for
lack of jurisdiction. He further concludes that Count II of the
Amended Complaint fails to state a claim that a declaration that
the Plaintiffs' Oil and Gas leases with Statoil permit class
arbitration is proper and will be dismissed with prejudice.
Accordingly, he granted the Defendant's Motion to Dismiss on both
counts.
A full-text copy of the Court's Sept. 12, 2018 Memorandum is
available at https://is.gd/IhqPEC from Leagle.com.
Alan Marbaker, Carol Marbaker, Jerry L. Cavalier & Frank K.
Holdren, Plaintiffs, represented by Aaron D. Hovan, John J. Hovan,
Attorney At Law, Arleigh P. Helfer -- ahelfer@schnader.com --
Schnader Harrison Segal & Lewis LLP, Ira Neil Richards --
irichards@schnader.com -- Schnader Harrison Segal & Lewis, LLP,
John J. Hovan & Richard Layton Huffsmith .
Statoil USA Onshore Properties, Inc., formerly known as
StatoilHydro USA Onshore Properties, Inc., Defendant, represented
by John G. Dean -- jgd@elliottgreenleaf.com -- Elliott Greenleaf &
Dean, Matthew G. Boyd -- mgb@elliottgreenleaf.com -- Elliott,
Greenleaf & Dean & Ryan Shores -- ryan.shores@shearman.com --
Shearman & Sterling LLP.
STEINHOFF INT'L: Investors Invited to Join European Class Suit
--------------------------------------------------------------
Carin Smith, writing for Fin24, reports that shareholders of global
retailer Steinhoff [JSE:SNH] are invited to register to join a
"class action suit" being brought by Dutch law firm BarentsKrans in
the district court in Amsterdam.
According to a statement issued by BarentKrans on September 28,
investors who bought shares in Steinhoff or its predecessor entity
Steinhoff International Holdings Limited (SIHL) on either the JSE
or the Frankfurt Stock Exchange would qualify. The shares would
have had to be bought between June 26, 2013 and December 6, 2017 or
the shareholders must have held some shares on December 5 or 6,
2017.
According to BarentKrans, many of the largest institutions in SA
have decided to pursue claims on behalf of their clients that
suffered losses as a result of the collapse in the share price of
Steinhoff in December 2017.
The institutions include Abax Investments, Allan Gray, Bateleur
Capital, Coronation, Denker, Electus, Eskom, Investec Asset
Management, Investec Wealth & Investment, Momentum, Old Mutual,
Sanlam, Tantalum Capital, Truffle and Visio Capital.
The clients of these institutions and funds collectively
represented about 20% of the total shareholding in Steinhoff at the
time the company's share price collapsed.
Martijn van Maanen, Esq.-- vmaanen@barentskrans.nl--
a partner at BarentsKrans, said in the statement that the decision
by these institutional investors to participate in the BarentsKrans
Steinhoff litigation, follows a long evaluation process.
He said the case is being fully funded by Claims Funding Europe, a
litigation funding company based in Dublin, Ireland. It is co-owned
by Maurice Blackburn Lawyers, a class action law firm in
Australia.
Fin24 reported earlier that a shareholder group got the green light
to sue Steinhoff International in the Netherlands in an attempt to
recover some of the billions of dollars investors lost.
In a procedural hearing last month, Netherlands-incorporated
Steinhoff had argued against going ahead with the court case filed
in Amsterdam by Dutch investor group VEB, saying a legal claim was
first filed in Germany. The company moved its primary listing to
Frankfurt from Johannesburg in 2015. Steinhoff has to reply to the
allegations by November 7.
VEB says it represents about 3% of Steinhoff's shareholders.
Steinhoff has said only 0.25% of its shareholders are based in the
Netherlands.
Since the accounting scandal erupted on December 5, Steinhoff has
written off the value of its assets by at least $14.3bn and said
restatements of its financials may have to go back to at least
2015.
In Germany, law firm TILP filed a claim against Steinhoff on behalf
of an investor and is working to expand it into the German version
of a class-action suit.
By early afternoon trade on September 28 Steinhoff shares were
trading at R2.32 per share [GN]
SYLVAN HIGHLANDS: 2nd Suit Alleges Exposure to Asbestos
-------------------------------------------------------
Aimee Green, writing for Oregon Live, reports that a former tenant
of a Southwest Portland apartment complex filed a class-action
lawsuit on September 21 against her former landlord -- claiming
that management negligently exposed her and others to asbestos as
they renovated decades-old units.
Shana Maurer, 23, says she now worries that she might one day
develop asbestos-related cancer from inhaling microscopic fibers
while living at the Commons at Sylvan Highlands apartments. Her
lawsuit claims that management at the complex learned in June
during a renovation project that some of its units had tested "hot"
for asbestos.
"Rather than do the right thing upon discovering that its
apartments contained potentially harmful asbestos, Sylvan Highlands
orchestrated a massive coverup to keep the asbestos a secret from
its tenants and the government," reads Maurer's lawsuit, which
doesn't seek a specific dollar amount.
A man who answered the phone at the apartment complex declined
comment about the lawsuit, and referred comment to Tandem Property
Management, which manages the complex. Messages to Tandem Property
Management on September 21 afternoon weren't returned.
Maurer's suit comes four days after two former employees filed a
$40 million lawsuit against Tandem Property Management -- claiming
they were fired in retaliation after learning that management had
allegedly continued to remodel units without taking proper steps to
contain the asbestos. That lawsuit alleges that managers directed
workers to carry asbestos-laden drywall through the halls without
following government regulations to contain the dangerous fibers.
Messages left at Tandem Property Management on September 17 about
that first lawsuit also haven't been returned.
Maurer's lawsuit alleges that management hadn't notified renters of
the alleged exposure.
Maurer also worked for Sylvan Highlands' property management
company, and learned about the alleged asbestos from a former
co-worker in August, according to her lawsuit. Maurer said she quit
and moved out.
"Now, all at once, I have to find a whole new job and I have to
pick up and build a new life, ...because morally I can't stay with
this company," Maurer told The Oregonian/OregonLive.
It's unclear how many people live at the large complex, at 1380
S.W. 66th Avenue, about four miles west of downtown Portland and
just north of Oregon 26. Sylvan Highlands is comprised of
apartments ranging from studios to two-bedroom homes with monthly
rents ranging from $1,225 to $1,700 per unit, according to the
company website.
Garrett Lage, another former tenant who has signed onto September
21 lawsuit, said during three years of living at Sylvan Highlands,
he saw units in his building renovated and old materials thrown in
open-air Dumpsters. He said he worries he might have inhaled
asbestos in the interior hallways of his building.
"It's just going to sit there," Lage said. "It's not going
anywhere."
Lage said he also fears he might have been exposed in the process
of packing up and moving out in August when his lease was up. He
removed picture frames and nails from the drywall of his unit, he
said.
Portland attorney Michael Fuller, Esq. is representing Lage and
Maurer as part of a class of tenants or former tenants. The lawsuit
was filed in Multnomah County Circuit Court. [GN]
SYNAPSE GROUP: Can't Compel Bank Statements Production in Price
---------------------------------------------------------------
In the case, SHANNON DALE PRICE AND CHERYL EDGEMON, individually
and on behalf of all others similarly situated, Plaintiffs, v.
SYNAPSE GROUP, INC., SYNAPSECONNECT, INC., TIME, INC., AND DOES
1-50 inclusive, Defendants, Case No. 16CV1524-BAS(BLM) (S.D. Cal.),
Magistrate Judge Barbara L. Major of the U.S. District Court for
the Southern District of California (i) granted in part the
Plaintiffs' request to compel further response to Requests for
Production of Documents Nos. 16, 17 and 21-23; (ii) denied as moot
the Plaintiffs' request to compel further response to Requests for
Production of Documents No. 24; (iii) denied the Defendants'
request that the Plaintiff's share in the cost of discovery; and
(iv) denied the Defendants' request to compel production of
unredacted bank statements and credit card statements.
The Plaintiffs filed a second amended class action complaint
alleging false advertising, violation of the California Consumers
Legal Remedies Act ("CLRA"), conversion, unfair competition, and
unjust enrichment on Aug. 23, 2016. They allege that the
Defendants are engaged in an illegal automatic renewal scheme for
magazine subscriptions.
Specifically, the Plaintiffs allege that after presenting consumers
with an opportunity for free or heavily discounted magazine
subscriptions, the Defendants misleadingly enroll customers in an
automatic renewal program that renews the magazine subscriptions
and results in a charge to the consumer's credit card, debit card,
or third party payment account without providing the requisite
disclosures and without obtaining the requisite authorizations
required by California law.
On June 27, 2018, the counsel for the Plaintiffs, Mr. Zachariah
Dostart, and the counsel for the Defendants, Mr. Michael Meuti,
contacted the Court regarding the instant dispute. In response, the
Court ordered the parties to file a Joint Motion for Determination
of Discovery Dispute on or before July 30, 2018. The parties
timely filed the motion.
On Aug. 22, 2018, the parties filed a Joint Statement Regarding the
instant motion identifying the issues that have been resolved and
the remaining issues the parties believe require a decision by the
Court.
The Plaintiffs seek an order from the Court compelling the
Defendants to further respond to Request for Production of
Documents ("RFPs") Nos. 16 and 17. Request for Production No. 16
seeks the production of all documents, including but not limited to
emails, correspondence, notes, and/or audio files, that constitute,
memorialize, reflect, refer to, or relate to any assertion,
complaint, or grievance made during the Class Period by a
California Customer that he or she did not consent or agree to be
enrolled in an Automatic Renewal or Continuous Service
subscription. The Plaintiff is amenable to meeting and conferring
on ESI search terms, custodians, and time frame for ESI searches.
Request for Production No. 17 seeks the production of all
documents, including but not limited to emails, correspondence,
notes, and/or audio files, that constitute, memorialize, reflect,
refer to, or relate to any assertion, complaint, or grievance made
during the Class Period by a California Customer that he or she did
not consent for his or her credit card, debit card, or third party
payment account to be charged for a renewal period. The Plaintiff
is amenable to meeting and conferring on ESI search terms,
custodians, and time frame for ESI searches.
Magistrate Judge Major finds that the Plaintiffs have made a prima
facie showing that the Rule 23 class requirements are satisfied for
purposes of obtaining the requested discovery and the Court finds
that RFP Nos. 16 and 17 are relevant to the Plaintiffs' CLRA and
UCL claims.
While the Magistrate appreciates the inconvenience of a 16-hour
drive to comply with discovery requests, the Defendants admit the
boxes may contain responsive documents and she finds the request is
proportional to the needs of the case given that the complaints and
grievances are relevant to the Plaintiffs' claims, the Plaintiffs
cannot access the information any other way, and the burden of a
long drive does not outweigh the likely benefit. Accordingly, she
granted the Plaintiffs' request to require the Defendants to review
all 26 boxes and produce responsive documents.
The Plaintiffs request that the Defendants be compelled to produce
responsive correspondence through June 30, 2018. In the
Supplemental Joint Statement, the Defendants agree to produce
responsive documents through the present although they explicitly
reserve their right to argue that the Class Period ends on an
earlier date. Given the Defendants' concession, the Magistrate
granted the Plaintiffs' motion to compel responses through June 30,
2018.
With respect to correspondence between customers and the BBB and
other intermediaries, and the Defendants' responses to that
correspondence, the Defendants have agreed, and still agree, to
produce all non-privileged documents responsive to RFP Nos. 16 and
17 relating to complaints received through the Better Business
Bureau or a state Attorney General, including any response by
Synapse. Accordingly, the Plaintiffs' request to compel customer
complaints through intermediaries is denied as moot.
The Plaintiffs' RFPs seek audio files from the Defendants' IVR.
The audio files contain telephone conversations between the
Defendants' representatives and consumers who call with concerns or
complaints about renewal charges. The Magistrate granted in part
the Plaintiffs' motion. She finds both suggestions to be
reasonable and proportional. She ordered the Defendants to produce
all audio files for the named Plaintiffs, including the four
individuals identified on July 25, 2018. They also are ordered to
review all audio files for a 14-day period and to produce to the
Plaintiffs all responsive audio files with a California consumer.
The Plaintiffs may choose any fourteen day period during the Class
Period and must notify the Defendants by Sept. 14, 2018, of the
chosen dates and Defendants must search the identified 14-day
period.
The Plaintiffs also seek to compel the Defendants to produce all
known responsive documents regardless of whether they are a "hit"
in an ESI search. The Magistrate acknowledges that she initially
ruled in favor of the Plaintiffs on this issue when it included the
section 1.f. language in the ESI Order. However, upon further
consideration and in light of how the Plaintiffs are seeking to
apply the provision in the instant dispute, she reverses herself
and finds that the term "known" is vague in this context and that
it would be unduly burdensome to require Defendants to interview
every employee to determine whether that employee knows of
potentially responsive ESI that Defendants would then be required
to produce. The parties have agreed upon search terms and
custodians and Defendants are required to comply with those
agreements and produce all non-privileged responsive documents that
are identified by the protocol. The Plaintiffs' request to compel
production of all known responsive ESI regardless of whether it was
a hit in an ESI search is denied.
The Plaintiffs seek an order from the Court compelling the
Defendants to further respond to RFPs Nos. 21-22. RFP No. 21 seeks
all scripts utilized at any time during the Class Period by any
telephone representative of Synapse that relate to answering
questions from consumers regarding Automatic Renewal or Continuous
Service subscriptions. RFP No. 22 seeks all documents that
constitute, memorialize, or reflect Synapse's policies, procedures,
and/or practices during the Class Period concerning the handling of
telephone calls that included an inquiry regarding enrollment into
or cancellation of an Automatic Renewal or Continuous Service
subscription.
In the Supplemental Joint Statement, the Defendants agree to
produce responsive scripts and policies and procedure documents
through the present but preserve their rights to argue that the
Class Period ended on May 17, 2016. Accordingly, the Magistrate
granted the Plaintiffs' motion as to the relevant time period and
Defendants are ordered to provide responsive documents from May 17,
2012 to the present.
She also finds that the RFP No. 22 seeks relevant information and
that the Defendants have not provided a factual or legal reason to
limit the request to the terms they propose. The Defendants also
have not established that the request as written is not
proportional to the needs of the case. Accordingly, she granted
the Plaintiffs' motion and the Defendants may not limit their
response to documents provided to telephone operators.
The Plaintiffs seek an order from the Court compelling the
Defendants to further respond to RFPs Nos. 23-24. RFP No. 23 seeks
the production of documents sufficient to identify the name,
address, telephone number, and job title/position of each telephone
representative who, during the Class Period, handled telephone
calls from one or more California Customers concerning an Automatic
Renewal or Continuous Service subscription. RFP No. 24 seeks the
production of documents sufficient to identify each entity that
employed telephone representatives who, during the Class Period,
handled telephone calls for Synapse regarding consumer complaints
about Automatic Renewal or Continuous Service subscriptions.
The Defendants' narrow interpretation of RFP No. 23 is not
reasonable in light of the text of the request. Accordingly, the
Plaintiffs' motion to compel further response to RFP No. 23 is
granted. And because Synapse agrees to identify each entity that
employed telephone representatives who handled the telephone calls
for Synapse at any time between May 17, 2012 and the present, there
will be no further dispute regarding RFP No. 24. Accordingly, the
Plaintiffs' motion to compel further response to RFP No. 24 is
denied as moot.
The Magistrate Judge finds that the Defendants have not established
a basis for cost sharing. The Plaintiffs' requests seek relevant
information and documents and the Defendants have not established
that responding to the requests is unduly burdensome or expensive.
After considering the Zubulake factors, she denied the Defendants'
request to shift the discovery costs to the Plaintiffs.
The Defendants seek an order from the Court compelling the
Plaintiffs to produce unredacted versions of their bank and credit
card statements. The Magistrate noted that the Defendants do not
dispute the Plaintiffs' claim that the request(s) do not seek any
information or charges other than the charges at issue. Assuming
that is true, she finds that the Defendants have no basis to object
to the Plaintiffs' failure to produce unrequested information. If
they believe additional charges are relevant, they should properly
request them. Accordingly, she denied the Defendants' motion to
compel the Plaintiffs to produce unredacted versions of their bank
and credit card statements.
A full-text copy of the Court's Sept. 12, 2018 Order is available
at https://is.gd/hBvnGS from Leagle.com.
Shannon Dale Price, individually and on behalf of all others
similarly situated & Cheryl Edgemon, individually and on behalf of
all others similarly situated, Plaintiffs, represented by James T.
Hannink -- jhannink@sdlaw.c -- Dostart Hannink & Coveney LLP &
Zachariah Paul Dostart -- zdostart@sdlaw.com -- Dostart Hannink
Coveney LLP.
Synapse Group, Inc., a Delaware corporation & SynapseConnect, Inc.,
a Delaware corporation, Defendants, represented by Darcie Tilly --
dtilly@cooley.com -- Cooley Godward Kronish, Michelle C. Doolin --
mdoolin@cooley.co -- Cooley LLP, Thomas David Warren, Baker &
Hostetler LLP, Heather Marie Speers -- hspeers@cooley.com -- Cooley
LLP, Kyle Thomas Cutts & Michael Dominic Meuti, Baker & Hostetler.
TELLTALE: Faces Class Action Over Labor Law Violations
------------------------------------------------------
Samit Sarkar, writing for Polygon, reports that a former Telltale
employee is suing the company in a class-action lawsuit, alleging
that it violated labor laws on the books in California and
nationwide when it laid off hundreds of employees on Sept. 21 in
advance of a planned closure of the studio.
The complaint, filed on Sept. 24 in federal court in San Francisco,
is a class-action lawsuit submitted by Vernie Roberts on behalf of
himself and his fellow laid-off workers. In the complaint, Roberts
says Telltale -- which is based in the San Francisco suburb of San
Rafael, California -- let go of the employees "without cause" and
without providing them with "advance written notice as required by
the WARN Act."
The federal Worker Adjustment and Retraining Notification Act,
which became law in 1988, stipulates that most businesses with at
least 100 full-time workers must notify employees 60 days in
advance of any plant closings or mass layoffs. The act defines a
"mass layoff" as a reduction of 50 or more employees within a
30-day period (if the total comprises at least one-third of the
company's workforce), or any layoff of 500 or more workers.
California's state-level version of the WARN Act, which took effect
in 2003, has more stringent requirements for businesses: It lowers
the company-size threshold to 75 full- or part-time workers, and
applies to any reduction of at least 50 employees. (Both the state
and federal laws require advance notice of 60 days.)
Ms. Roberts' complaint says the total layoffs at Telltale amount to
approximately 275 employees. The figure appears to include the
layoffs that occurred Sept. 21, which media reports pegged at about
250 individuals, as well as the skeleton crew of 25 that remains at
the studio as it winds down operations. Telltale terminated the
employees without providing any severance, according to the
complaint. The laid-off individuals are reportedly receiving health
benefits only until the end of the month.
Under the WARN Act, businesses that undertake plant closings or
mass layoffs with fewer than 60 days' advance notice are subject to
significant financial penalties. Rather than pay fines, a company
must give affected employees back pay and benefits for each day of
violation. Ms. Roberts' complaint says Telltale gave no advance
notice of the cuts, which would mean that Telltale would have to
give each of the 275 employees salary and benefits for a full 60
days following their termination, if the plaintiffs win the
lawsuit.
The plaintiffs are requesting a jury trial, and are seeking to win
the aforementioned compensation for the laid-off employees: an
amount equal to the wages and benefits that the workers would
receive if their employment continued for 60 days after their
termination, plus interest, in accordance with the federal and
California versions of the WARN Act.
We've reached out to Telltale for comment, and will update this
article with any information we receive. For more on the lawsuit,
you can read the complaint in full below.
Update: Telltale may be able to fight the lawsuit on the basis of
the federal WARN Act, but it will likely have a tougher time
defending its actions according to the California version of the
law, reports GameDaily.
The federal law offers some exceptions for businesses, situations
in which a company would be exempt from the 60-day advance notice
provision. The exemptions include "business circumstances that were
not reasonably foreseeable." Variety reported on Sept. 24 that
Telltale was working to secure a round of financing, but that the
last possible backer -- which may have been Lionsgate, multiple
sources told Variety -- pulled out, forcing the studio to initiate
shutdown plans and lay off most of the team.
GameDaily spoke with attorney Richard Hoeg, who said that in light
of Variety's reporting, Telltale may be able to cite the WARN Act's
"business circumstances" exception in its defense. However, noted
Hoeg, the California counterpart to the WARN Act does not feature
any such clause.
"The fact that California did not bring over the pertinent
exemption would seem to put [Telltale] in a precarious compliance
position with the state," Mr. Hoeg told GameDaily. [GN]
TESARO INC: Confidentiality App. in Bowers Agreements Limited
-------------------------------------------------------------
In the case, ROGER BOWERS, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. TESARO INCORPORATED, LEON O.
MOULDER JR. and TIMOTHY R. PEARSON, Defendants, Case No.
1:18-cv-10086-ADB (D. Mass.), Judge Allison D. Burroughs of the
U.S. District Court for the District of Massachusetts granted the
Lead Plaintiff's Motion to Limit Application of Confidentiality
Provisions in Agreements Signed By Former Tesaro, Inc. Employees.
Upon consideration of the parties' positions, and the further
materials submitted pursuant to the Court's July 13, 2018
Electronic Order, Judge Burroughs permitted the Lead Counsel and/or
Lead Counsel's investigators to interview up to 18 of the 21 former
TESARO employees identified on a list that the Lead Counsel will
make available for in camera review should the Court so Request,
and who agree to speak with the Lead Counsel and/or the Lead
Counsel's investigators.
Prior to any interview with a Former Employee, the Lead Counsel
and/or the Lead Counsel's investigators will state that each Former
Employee is free to speak or not speak with the Lead Counsel and/or
the Lead Counsel's investigators, and that any participation in an
interview is purely voluntary. Neither the Lead Counsel and/or the
Lead Counsel's investigators will state or imply that an interview
is required. Moreover, while conducting any of the interviews
permitted pursuant to the Order only, the Judge ordered that no
investigator for the Lead Counsel will state that he/she is a
former employee of the Federal Bureau of Investigation or of any
other government agency.
After identifying themselves and the purpose of their efforts to
communicate with Former Employees, the Lead Counsel and/or the Lead
Counsel's investigators will state that they understand that TESARO
has entered into confidentiality agreements with all Former
Employees, and may ask Former Employees the follwing preliminary
background and biographical questions: (i) What is your name?; (ii)
What were your dates of employment with TESARO?; (iii) What
position(s) did you hold while employed at TESARO?; (iv) To whom
did you report in the position(s) that you held at TESARO, and who
reported to you while you held such position(s) at TESARO?; and (v)
Where were you located while employed by TESARO?
The Lead Counsel and/or its investigators will provide a copy of
the Stipulated Order to the Former Employee. The Lead Counsel
and/or the Lead Counsel's investigators may ask Former Employees
one or more of the questions on the limited list of questions
permitted by the Court, and follow-up questions concerning the
content of the Former Employees' responses to such questions,
provided that such follow-up questions will remain strictly limited
to the same subject matter as that covered by the questions
permitted by the Court.
TESARO will not enforce the terms of its confidentiality agreements
against any Former Employees for disclosing information to the Lead
Counsel and/or the Lead Counsel's investigators. The Lead
Plaintiff, the Lead Counsel, and the Lead Counsel's investigators
will comply with the terms of the Stipulated Confidentiality
Agreement and Protective Order.
Pursuant to the Court's June 13, 2018 Electronic Order, the
deadline for filing the Amended Class Action Complaint (the Amended
Complaint) set forth in the Court's March 7, 2018 Electronic Order
is amended such that the Lead Plaintiff will have 30 days froth the
date of the Order to file the Amended Complaint under seal with the
Court.
A full-text copy of the Court's Sept. 12, 2018 Order is available
at https://is.gd/0zJEl1 from Leagle.com.
Roger Bowers, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by J. Alexander Hood --
ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice
& Daryl DeValerio Andrews -- daryl@andrewsdevalerio.com --, Andrews
DeValerio.
Bratya SPRL, Plaintiff, represented by Mitchell J. Matorin --
info@matorinlaw.com -- Matorin Law Office LLC.
Zev Crawley, Plaintiff, represented by Evan R. Hoey --
ehoey@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac vice,
Johnston de F. Whitman, Jr. -- jwhitman@ktmc.com -- Kessler Topaz
Meltzer & Check LLP, pro hac vice, Melissa Troutner --
mtroutner@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac
vice, Michael T. Anderson -- manderson@murphypllc.com -- Murphy
Anderson PLLC, Naumon A. Amjed -- namjed@ktmc.com -- Kessler Topaz
Meltzer & Check LLP, pro hac vice & Sharan Nirmul --
snirmul@ktmc.com -- Kessler Topaz Meltzer & Check LLP, pro hac
vice.
Tesaro Inc., Leon O. Moulder, Jr. & Timothy R. Pearson, Defendants,
represented by Justin P. O'Brien -- justin.obrien@hoganlovells.com
-- Hogan Lovells US LLP, Steven F. Barley --
steve.barley@hoganlovells.com -- Hogan Lovells US LLP & Scott R.
Haiber -- scott.haiber@hoganlovells.com -- Hogan Lovells US LLP,
pro hac vice.
Daniel A. Doornbos & Anush M. Parikh, Movants, represented by
Joshua Baker -- jbaker@rosenlegal.com -- The Rosen Law Firm, P.A.
The Employees Retirement System of Puerto Rico Electric Power
Authority, Movant, represented by Adam M. Stewart --
astewart@shulaw.com -- Shapiro Haber & Urmy LLP.
Wayne Matott & Caroline Korn, Movants, represented by Daryl
DeValerio Andrews, Andrews DeValerio.
Construction Industry and Laborers Joint Pension Trust, Movant,
represented by Theodore M. Hess-Mahan --
thess-mahan@hutchingsbarsamian.com -- Hutchings, Barsamian, Cross
and Mandelcorn, LLP.
TESLA INC: Kaskela Law Files Class Action Lawsuit
-------------------------------------------------
Kaskela Law LLC disclosed that investor class action lawsuits have
been filed against Tesla, Inc. (NASDAQ: TSLA) ("Tesla" or the
"Company") and its CEO, Elon Musk ("Musk"), on behalf of investors
who purchased or sold Tesla securities between August 7, 2018 and
August 17, 2018, inclusive (the "Class Period").
Investors who transacted in Tesla securities during the Class
Period and suffered financial harm in excess of $1 million are
encouraged to immediately contact Kaskela Law LLC (D. Seamus
Kaskela, Esq.) at (888) 715 – 1740 or skaskela@kaskelalaw.com to
discuss their legal rights and recovery options. For additional
information or to learn how to participate in this action please
visit http://kaskelalaw.com/case/tesla/.
According to the complaints, on August 7, 2018, Musk stated on
Twitter: (i) "Am considering taking Tesla private at $420"; (ii)
"Funding secured"; (iii) "Shareholders could either to sell at 420
or hold shares & go private"; and (iv) "Investor support is
confirmed." These tweets drove the price of Tesla shares up as much
as $45.47 per share during intraday trading on August 7, 2018.
Subsequently, Tesla’s securities significantly declined in value
following the announcement of an SEC investigation and the
subsequent filing of a complaint against Musk, as well as the
disclosure of other material information evidencing a lack of
support for Musk’s statements. As a result of the foregoing,
Tesla investors transacted in the Company’s securities at
artificially inflated values, and have suffered significant
investment losses as a result of defendants’ conduct.
FINAL DEADLINE ALERT: Investors who transacted in Tesla securities
during the Class Period and suffered financial harm may, no later
than October 9, 2018, seek to be appointed as a lead representative
in the action.
Investors who transacted in Tesla securities during the Class
Period and suffered financial harm in excess of $1 million are
encouraged to immediately contact Kaskela Law to discuss their
legal rights and recovery options. Kaskela Law LLC exclusively
represents investors in state and federal investor actions
throughout the country.
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
201 King of Prussia Road
Suite 650
Radnor, PA 19087
Telephone: 888-715-1740
Email: skaskela@kaskelalaw.com [GN]
TESLA INC: Levi & Korsinsky Files Class Action Lawsuit
------------------------------------------------------
Levi & Korsinsky, LLP disclosed that a class action lawsuit has
commenced on behalf of shareholders of Tesla Inc. Shareholders
interested in serving as lead plaintiff have until the deadlines
listed to petition the court and further details about the cases
can be found at the links provided. There is no cost or obligation
to you.
Class Period: Purchasers of shares between August 7, 2018 and
August 17, 2018 and/or who had open short positions or put options
for Tesla as of August 7, 2018 or August 8, 2018
Lead Plaintiff Deadline: October 9, 2018
Join the action:
http://www.zlk.com/pslra-1/tesla-inc-loss-submission-form?wire=3
About the lawsuit:
During the class period, Tesla, Inc. allegedly made materially
false and/or misleading statements and/or failed to disclose that:
(1) the Defendants had not secured funding for the Going-Private
Transaction; (2) Musk's statements that the Going-Private
Transaction only required shareholder approval were false since the
Going-Private Transaction required approval by the Company's Board
of Directors and even the Board was unaware of the funding referred
to by Musk; (3) the status and likelihood of the Going-Private
Transaction was misrepresented to the market because financing for
it had not been secured and Board approval was required, and (4) as
a result of the foregoing, Defendants' statements about Tesla's
business, operations, and prospects, were materially false and/or
misleading and/or lacked a reasonable basis.
To learn more about the Tesla, Inc. class action contact
jlevi@levikorsinsky.com.
You have until the lead plaintiff deadlines to request the court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Joseph E. Levi, Esq.
Levi & Korsinsky, LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Toll Free: (877) 363-5972
Fax: (212) 363-7171
Email: jlevi@levikorsinsky.com [GN]
TESLA INC: Safirstein Metcalf Files Class Action
------------------------------------------------
Safirstein Metcalf LLP disclosed that a securities class action
lawsuit has been filed against Tesla, Inc. (NASDAQ: TSLA) and its
Chief Executive Officer Elon Musk, alleging that Mr. Musk
"artificially manipulated the price of Tesla stock" by taking to
Twitter to announce fictional plans to take the publicly listed car
company private.
The action is on behalf of all persons other than Defendants who
purchased, sold, or otherwise transacted in Tesla securities
between August 7, 2018 and August 17, 2018, inclusive (the "Class
Period"). If you would like more information about the shareholder
class action, please contact Safirstein Metcalf LLP at
1-800-221-0015, or email info@SafirsteinMetcalf.com
If you wish to serve as lead plaintiff, you must move the Court no
later than October 9, 2018. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the putative class may move the Court to
serve as lead plaintiff through counsel of their choice or may
choose to do nothing and remain an absent class member.
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose,
among other things, that: (1) Tesla had not secured funding for the
Company's proposed "going-private transaction"; (2) the status and
likelihood of the proposed "going-private transaction" was
misrepresented to the market because the financing for the proposed
transaction had not been secured and because it required the
approval of both Tesla's Board of Directors and its shareholders;
and (3) as a result of the foregoing, Defendants' statements about
Tesla's business, operations, and prospects, were materially false
and/or misleading and/or lacked a reasonable basis.
Upon the market learning that Mr. Musk's statements were
inaccurate, Tesla's shares fell $9.23 per share, or 2.4%, to close
at $370.34 per share on August 8, 2018, and on August 9, 2018,
Tesla shares fell $17.89 per share, nearly 5%, to close at $352.45
per share, resulting in a two-day decline of more than 7% per
share.
The lawsuit further alleges that on August 13, 2018, during
aftermarket hours, Mr. Musk tweeted that "I'm excited to work with
Silver Lake and Goldman Sachs as financial advisors, plus Wachtell,
Lipton, Rosen & Katz and Munger, Tolles & Olson as legal advisors,
on the proposal to take Tesla private." However, according to the
lawsuit, on August 14, 2018, Bloomberg published an article
entitled "Goldman Is Said to Have No Mandate When Musk Tweeted,"
stating that neither Goldman Sachs or Silver Lake were yet working
with Mr. Musk pursuant to a signed agreement or in an official
capacity when Musk stated on Twitter late Monday, August 13, 2018,
that both firms were working with him as financial advisers.
On this news, Tesla's shares fell $8.77 per share, or nearly 2.5%,
to close at $347.64 per share on August 14, 2018, damaging
investors.
The United States Securities and Exchange Commission has filed a
securities fraud action against Mr. Musk based upon the allegations
stated above.
Peter Safirstein, Esq.
Safirstein Metcalf LLP
350 Fifth Avenue
New York, NY 10118
Telephone: 1-800-221-0015
Email: psafirstein@safirsteinmetcalf.com [GN]
TG THERAPEUTICS: Sued by Reinmann for Issuing False Statements
--------------------------------------------------------------
RANDALL REINMANN, Individually and on Behalf of All Others
Similarly Situated v. TG THERAPEUTICS, INC. and MICHAEL S. WEISS,
Case No. 1:18-cv-09104 (S.D.N.Y., October 4, 2018), alleges that
the Defendants made false and misleading statements, engaged in a
scheme to deceive the market and pursued a course of conduct that
artificially inflated the price of TG common stock.
The case concerns TG's UNITY-CLL Trial, a randomized controlled
Phase 3 trial under Special Protocol Assessment evaluating TG-1101
in combination with TGR-1202, the Company's development stage PI3K
delta inhibitor, for patients with front line and previously
treated Chronic Lymphocytic Leukemia ("CLL"). The Plaintiff
contends that the Defendants failed to disclose and misrepresented,
among other things, that TG was involved in cleaning the data
collected in the UNITY-CLL study and, as a result, was able to gain
an understanding as to the efficacy of the combination therapy.
TG is a biopharmaceutical company engaged in the acquisition,
development, and commercialization of treatments for cancer and
autoimmune diseases in the United States. Michael S. Weiss is the
Executive Chairman, Chief Executive Officer and President of
TG.[BN]
The Plaintiff is represented by:
David A. Rosenfeld, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: drosenfeld@rgrdlaw.com
- and -
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: davew@rgrdlaw.com
- and -
Michael I. Fistel, Jr., Esq.
JOHNSON FISTEL, LLP
40 Powder Springs Street
Marietta, GA 30064
Telephone: (770) 200-3104
Facsimile: (770) 200-3101
E-mail: michaelf@johnsonfistel.com
TICKETMASTER: Class Action Mulled Over Scalper Operations
---------------------------------------------------------
Marsha Silva, writing for Digital Music News, reports that lawyers
are threatening Ticketmaster with new lawsuits after the Toronto
Star published undercover videos connecting the company to scalper
operations.
The secretly-filmed video draws a clear link between Ticketmaster
and scalpers, specifically through the TradeDesk platform. A
Ticketmaster executive explains how Ticketmaster, which sells north
of 142 million tickets annually, is willing to work with scalpers
to provide them with ample access to tickets. Those tickets are
then resold at high prices, benefiting both the scalper and
Ticketmaster.
Guess they're in on the scam. Now, lawyers are clamoring for
blood, with a $100 million class action lawsuit already in the
works.
The new evidence obtained by the Star supposedly show officials
with Ticketmaster talking about their proprietary software called
TradeDesk. This is a sophisticated resale software platform that
essentially allows scalpers to buy and manage large ticket blocks
and then resell them to the public.
The clandestine deals go against the company's posted rules, in
which a member of the public must show a credit card or government
identification to claim their tickets.
If the courts agree, then Ticketmaster could be found guilty of
breach of competition and consumer affairs legislation. Merchant
Law Group seem to leading the charge here, with tough talk of a
class action lawsuit drawing more than $100 million in damages.
But several United States law firms are working on lawsuits. All
are alleging that the information uncovered by the Toronto Star
will be instrumental in their cases.
Ticketmaster says that they have already started an internal review
process to be sure that the company is operating fairly and within
the law.
The company is not stranger to litigation, including battles with
federal regulators. That includes the threat of a serious federal
antitrust investigation from the United States Department of
Justice. According to one report, that investigation was closed
due to lack of resources. [GN]
UBER TECH: Drivers Must Arbitrate Claims, Court Rules
-----------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that Uber
Technologies Inc won a legal victory on Sept. 25 as a federal
appeals court said drivers seeking to be classified as employees
rather than independent contractors must arbitrate their claims
individually, and not pursue class-action lawsuits.
In a 3-0 decision, the 9th U.S. Circuit Court of Appeals in San
Francisco reversed a lower court judge's denial of Uber's motion to
compel arbitration in three lawsuits.
It also overturned the class certification in one of the lawsuits
of thousands of California drivers who had driven for the San
Francisco-based ride-hailing company since August 2009.
Drivers had complained that Uber misclassified them as independent
contractors to avoid having to reimburse them for gasoline, vehicle
maintenance and other expenses.
Some also accused Uber of wrongly refusing to let them keep all
tips from passengers.
The decertified class action included both types of claims.
Class actions let people sue as a group, and potentially obtain
greater recoveries than if forced to sue individually, which might
prove prohibitively expensive.
Uber's defense got a boost after the U.S. Supreme Court, in Epic
Systems Corp v Lewis, ruled 5-4 in May that companies could compel
workers to waive their right to class actions and instead pursue
arbitration for various workplace disputes.
In the Sept. 25 decision, Circuit Judge Richard Clifton said
arbitration was necessary in light of the Epic ruling, as well a
9th Circuit ruling from 2016 in another case against Uber.
Shannon Liss-Riordan, a lawyer for the drivers, said the
overturning of the class action was expected.
She may ask an 11-judge appeals court panel to revisit the case,
but said thousands of drivers are pursuing individual arbitrations
in the meantime.
"If Uber wants to resolve these disputes one by one, we are ready
to do that -- one by one," she said.
A lawyer for Uber, Theodore Boutrous, said: "We are very pleased
with the Ninth Circuit's order reversing class certification."
The decision applies in nine Western U.S. states, but could be
cited by courts elsewhere.
Uber has faced dozens of lawsuits claiming that its drivers are
employees entitled to minimum wage, overtime and other benefits not
afforded to contractors.
Chief Executive Dara Khosrowshahi is preparing to take Uber public
next year, and the company's ability to retain drivers is critical
to its growth prospects.
In his year at the helm, Mr. Khosrowshahi has tried to improve
Uber's image, including by addressing federal criminal and civil
probes into its business practices and stamping out its reputation
as tolerant of chauvinism.
The cases in the 9th U.S. Circuit Court of Appeals include O'Connor
et al v Uber Technologies Inc, No. 14-16078; Yucesoy v Uber
Technologies Inc, No. 15-17422; and Del Rio et al v Uber
Technologies Inc et al, No. 15-17475. [GN]
UBER TECHNOLOGIES: Class Action Settlement Gets Prelim. Court OK
----------------------------------------------------------------
Courthouse News Service reported that as he indicated he would at a
hearing last month, a federal judge on Oct. 9 gave his preliminary
OK to a $345,622 class action settlement between Uber and a class
of drivers accusing the ride-hail of shortchanging them using its
"upfront" pricing model.
UBER TECHNOLOGIES: Womble Bond Discusses Dismissal of Ill. Suit
---------------------------------------------------------------
Erin Kubota, Esq., at Womble Bond Dickinson (US) LLP, in an article
for the National Law Review, wrote that in Johnson v. Uber
Technologies, Inc., 2018 WL 4503938 (Sept. 20, 2018), the United
States District Court in the Northern District of Illinois granted
summary judgment in favor of Uber Technologies, Inc. ("Uber"),
dismissing the class claims without prejudice and staying the case
pending resolution of arbitration. The district court found that
Uber's ride-requesting app contained a "clear and conspicuous
statement" that placed a reasonable person on notice that by
creating an Uber account, a user agreed to the terms of service
that were made available to the user via a hyperlink.
Johnson, on behalf of himself and as representative of a putative
class, sued Uber for purportedly violating the TCPA by allegedly
sending him an unsolicited text message asking if he wanted to sign
up to be an Uber driver. Johnson claimed that he never requested a
ride using the Uber app, and that he allegedly received the text
message after he deleted the app from his phone.
Uber moved for summary judgment on the issue of whether the parties
agreed to arbitrate the dispute. In granting Uber's motion, the
court found that Johnson was on reasonable notice of the terms of
service, which included an arbitration provision. The court found
that the statement that informed a user that by creating an Uber
account a user agreed to the terms of service that were made
available to the user via a hyperlink, was in an "easy-to-read font
on an uncluttered screen [that required] no scrolling [to view
it]."
The court also found that the fact that Johnson failed to read the
actual terms of service was of no probative force, and that
Johnson's TCPA claim clearly fell within the scope of the
arbitration agreement.[GN]
UNITED COLLECTION: Faces Bissell Suit Asserting FDCPA Breach
-------------------------------------------------------------
United Collection Bureau, Inc. is facing a class action lawsuit in
New York. The case is styled as John Bissell on behalf of himself
and all others similarly situated, Plaintiff v. United Collection
Bureau, Inc., Defendant, Case No. 1:18-cv-09575 (S.D. N.Y., Oct.
18, 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.[BN]
The Plaintiff is represented by:
Daniel Chaim 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: Court OKs $3.4MM Atty's Fees in Suit vs CIA
----------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting Plaintiffs' Motion for
Attorney's Fees in the case captioned VIETNAM VETERANS OF AMERICA,
et al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, et al.,
Defendants. Case No. 09-cv-00037-CW. (N.D. Cal.).
The Court finds the Plaintiffs' attorneys' stipulated fees to be
reasonable. The hours claimed are well-supported and the rates are
those allowed under the Equal Access to Justice Act (EAJA). The
Plaintiffs' Bill of Costs is sufficiently itemized and the costs
they are seeking are statutorily permitted under 28 U.S.C. Section
1920 or the EAJA.
The Court further finds the Plaintiffs' attorneys' fees to be
reasonable because they were substantially discounted from the
original total amount of $20 million down to $4.5 million using the
statutory EAJA rates and discounting hours. This amount was further
reduced to the stipulated amount of $3.4 million.
A full-text copy of the District Court's October 4, 2018 Order is
available at https://tinyurl.com/ybdgnjy8 from Leagle.com.
Vietnam Veterans of America, a non-proft corporation, Bruce Price,
Franklin D. Rochelle, Larry Meirow, Eric P. Muth, David C. Dufrane,
Swords to Plowshares: Veterans Rights Organization, a California
Non-Profit Corporation, William Blazinski, Tim Michael Josephs &
Kathryn McMillan-Forrest, Plaintiffs, represented by Benjamin
French Patterson -- bpatterson@mofo.com -- Morrison & Foerster,
James P. Bennett -- jbennett@mofo.com -- Morrison & Foerster LLP &
Stacey Michelle Sprenkel -- ssprenkel@mofo.com -- Morrison &
Foerster LLP.
Central Intelligence Agency, United States of America, Eric H.
Holder, Jr., Attorney General of the United States, United States
Department of Veterans Affairs, Eric K. Shinseki, United States
Secretary of Veterans Affairs, David H Petraeus, Director of the
Central Intelligence Agency, Leon E. Panetta, Secretary of Defense
& John McHugh, United States Secretary of the Army, Defendants,
represented by Ryan B. Parker , United States Department of Justice
Civil Division.
United States Department of Defense & United States Department of
the Army, Defendants, represented by Nicholas Patrick Cartier ,
Department of Justice, Cesar A. Lopez-Morales , U.S. Department of
Justice Civil Division & Ryan B. Parker , United States Department
of Justice Civil Division.
UPS: Class of Seasonal Drivers in Ortez Conditionally Certified
---------------------------------------------------------------
In the case, MICHAEL ORTEZ, individually and on behalf of all
others similarly situated, Plaintiff, v. UNITED PARCEL SERVICE,
INC., an Ohio corporation, Defendant, Civil Action No.
17-cv-01202-CMA-MEH (D. Colo.), Judge Christine M. Arguello of the
U.S. District Court for the District of Colorado (i) granted in
part Ortez's Motion to Approve Hoffmann-La Roche Notice to
Potentially Aggrieved Employees, and (ii) denied the Plaintiff's
Motion to Equitably Toll FLSA Statute of Limitations.
The Plaintiff was a seasonal employee of the Defendant, a worldwide
package delivery service. He contends that the Defendant's uniform
policy and practice required him, and all other seasonal drivers,
to spend 30 minutes to one hour of uncompensated labor preparing
their delivery vehicles (i.e., loading, packing, and organizing)
prior to beginning their routes each day. Based primarily on this
allegation, the Plaintiff brings a collective action against
Defendant under the Fair Labor Standards Act ("FLSA"). He also
brings class action claims and two individual claims against the
Defendant under Colorado state law.
The instant motions request that the Court conditionally certify a
collective class of seasonal drivers under the FLSA, approve the
Plaintiff's proposed Notice and Consent Forms, and equitably toll
the statute of limitations until the opt-in period closes.
The matter is before the Court on the Report and Recommendation of
U.S. Magistrate Judge S. Kato Crews, wherein he recommends that the
Court grants in part the Plaintiff's Hoffmann-La Roche Motion, and
denies the Plaintiff's Equitable Tolling Motion. Both parties have
filed Objections, challenging portions of the Recommendation.
Magistrate Judge Crews recommends granting in part the Plaintiff's
request to certify the collective class. Instead of certifying
"all seasonal drivers" statewide or worldwide, Magistrate Judge
Crews suggested that the Court limits the collective geographically
to seasonal drivers who (1) worked at the "Centennial" location
where the Plaintiff worked; (2) worked at the "Commerce City"
location, where one of the Plaintiff's declarants Michael Mueller
worked; or (3) attended trainings for seasonal drivers at the
Commerce City facility.
Because neither party objects to the inclusion of seasonal
employees in first two categories, Judge Arguello adopts Magistrate
Judge Crews' recommended inclusion of them. Indeed, sufficient
allegations support that drivers in those categories are similarly
situated to the Plaintiff and conditional certification, as
recommended by Magistrate Judge Crews, is therefore warranted.
Accordingly, the Judge conditionally certified the class of all
seasonal drivers employed by the Defendant from Oct. 1, 20165,
through the present, who either (1) worked in the Centennial or
Commerce City facilities; or (3) attended trainings for seasonal
drivers at the Commerce City facility.
The Judge next finds that neither party objects to Magistrate Judge
Crews' conclusion that the Plaintiff's proposed Notice Form
adequately apprises the potential opt-in Plaintiffs of their rights
and options; and the Consent Form properly allows the potential
Plaintiffs to join the action in the manner they deem appropriate.
Having reviewed the proposed Notice and Consent Forms, she agrees
that they are fair and accurate, and she authorizes their
dissemination, subject to revisions reflecting the Court's
conditional collective class above and updating the reference in
Section 1 of the Notice from Magistrate Judge Hegarty to Magistrate
Judge Crews. She also adopts Magistrate Judge Crews' unchallenged
recommended timeline for the dissemination of notice (within 14
days of the Order), the opt-in period (120 days), and the
dissemination of a reminder notice (45 days before the 120-period
concludes). She accordingly ordered the Defendant, within 14 days
of the Order, to produce the names, dates of employment, last known
physical addresses, email addresses, and any foreign addresses of
the individuals to whom notice should be sent.
Finally, upon de novo review, the Judge finds that tolling is not
warranted. Nothing in the record of the case shows that any
potential opt-in Plaintiff was deceived, misled, lulled into
inaction, or otherwise faced extraordinary circumstances that made
it impossible for them to file a timely FLSA claim. Moreover, the
Plaintiff exaggerates the circumstances of the delay in the case.
She therefore overrules the Plaintiff's objections and denied his
tolling request.
For the foregoing reasons, Judge Arguello (i) affirmed and adopted
the Report and Recommendation of Magistrate Judge Crews as an Order
of the Court. Shee granted in part the Plaintiff's Motion to
Approve Hoffmann-La Roche Notice as follows: (i) she conditionally
certified the class of all seasonal drivers who either (1) worked
in the Centennial or Commerce City facilities, or (2) attended
trainings for seasonal drivers at the Commerce City facility, from
Oct. 1, 2016 until the date of the Order; (ii) approved the
Plaintiff's Notice and Consent Forms, subject to the Notice being
amended to accurately reflect the parameters of the group of the
potential opt-in Plaintiffs as set out and the correct Magistrate
Judge; (iii) within 14 days from the Order, the Defendant will
produce the names, dates of employment, last known physical
addresses, email addresses, and any foreign addresses of the
putative opt-in Plaintiffs; and (iv) the Notice will be sent within
14 days of the Defendant's disclosure; the opt-in period will run
120 days from the date the first Notice is given; and the Plaintiff
may resend the approved Notice and Consent forms to the potential
Plaintiffs a second time no later than 45 days before the end of
the 120-day opt-in period. Finally, the Judge denied the
Plaintiff's Motion to Equitably Toll FLSA Statutes of Limitations.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/n14bBE from Leagle.com.
Michael Ortez, individually, and on behalf of all others similarly
situated, Plaintiff, represented by Adam Murdoch-Kitt Harrison --
aharrison@sawayalaw.com -- Sawaya Law Firm.
United Parcel Service, Inc., an Ohio corporation, Defendant,
represented by Amber J. Munck -- muncka@gtlaw.com -- Greenberg
Traurig, LLP, Jonathan L. Sulds -- suldsj@gtlaw.com -- Greenberg
Traurig, LLP, Lindsay Nicole Uhl -- uhll@gtlaw.com -- Greenberg
Traurig, LLP & Naomi G. Beer -- beern@gtlaw.com -- Greenberg
Traurig, LLP.
VENETIAN CASINO: Yousif FCRA Suit Settlement Has Final Approval
---------------------------------------------------------------
In the case, MUSTAFA YOUSIF and SHARONE WALKER on behalf of
themselves and all others similarly situated, Plaintiffs, v. THE
VENETIAN CASINO RESORT, LLC; LAS VEGAS SANDS, CORP. and DOES 1
through 50, inclusive, Defendants, Case No. 2:16-cv-02941-RFB-NJK
(D. Nev.), Judge Richard F. Boulware, II of the U.S. District Court
for the District of Nevada granted the Plaintiffs' Motion for Final
Approval of Fari Credit Reporting Act Class Action Settlement and
for Attorneys' Fees and Costs and Representative Enhancement
Payments.
The Action came before the Court on Sept. 11, 2018, for a hearing
and the Court's Final Order and Judgment on FCRA Claims, consistent
with the Court's Preliminary Approval Order, filed and entered May
29, 2018, and as set forth in the Joint Stipulation of Settlement
and Release Between Plaintiff and Defendant.
Judge Boulware approved the Settlement set forth in the Stipulation
of Settlement and found that the Settlement is, in all respects,
fair, adequate and reasonable. He entered judgment in the Action,
as of the date of entry of the Court's Final Order and Judgment,
pursuant to the terms set forth in the Stipulation of Settlement.
The Judge oredered that the calculations and the payments to be
made and administered in accordance with the terms of the
Settlement.
He confirmed Thierman Buck LLP as the Class Counsel in the Action.
Pursuant to the terms of the Settlement, and the authorities,
evidence and argument submitted by Class Counsel, Judge awarded the
Class Counsel attorneys' fees in the amount of $408,333.33, and
attorney costs in the amount of $11,102.93, to be deducted and paid
from the Maximum Settlement Amount, as final payment for and
complete satisfaction of any and all attorneys' fees and costs
incurred by and/or owed to Class Counsel and any other person or
entity related to the Action. He further ordered that the award of
the attorneys' fees and costs will be administered pursuant to the
terms of the Stipulation of Settlement, and transferred and/or made
payable to the Class Counsel in the Action.
He also approved and ordered the Enhancement Awards to the Class
Representatives, Mustafa Yousif and Sharone Walker, in the amount
of $10,000 each (total of $20,000) to be paid from the Maximum
Settlement Amount as set forth in the Stipulation of Settlement.
He also approved and ordered payment from the Class Settlement for
actual claims administration expenses incurred by the Claims
Administrator, Simpluris, in the amount of $25,375 to be paid from
the Maximum Settlement Amount as set forth in the Stipulation of
Settlement.
Provided the Settlement becomes effective under the terms of the
Stipulation of Settlement, Judge Boulware ordered that the deadline
for mailing or otherwise delivering the Court-approved Settlement
Awards, attorneys' fees and costs, and Enhancement Awards is as set
forth in the schedule within the Preliminary Approval Order.
A full-text copy of the Court's Sept. 11, 2018 Order is available
at https://is.gd/Fem8vc from Leagle.com.
Mustafa Yousif & Sharone Walker, Plaintiffs, represented by Joshua
D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Leah Lin
Jones, Thierman Buck, LLP & Mark R. Thierman, Thierman Buck, LLP.
The Venetian Casino Resort, LLC & Las Vegas Sands, Corp.,
Defendants, represented by Anthony L. Martin --
anthony.martin@ogletree.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Patrick F. Hulla -- patrick.hulla@ogletree.com --
Ogletree Deakins, pro hac vice & Dana B. Salmonson --
dana.salmonson@ogletree.com -- Ogletree Deakins Nash Smoak &
Stewart, P.C..
WALGREEN CO: Jackson-Mau Suit Alleges NY Business Law Violation
---------------------------------------------------------------
Theda Jackson-Mau, on behalf of herself and all others similarly
situated v. Walgreen Co., Case No. 1:18-cv-04868 (E.D. N.Y., August
27, 2018), is brought against the Defendant for violation of the
New York General Business Law.
The Plaintiff brings this class action on behalf of purchasers of
Finest Nutrition Glucosamine Sulfate in New York for violation of
New York GBL. The Plaintiff also brings this class action on behalf
of purchasers of Finest Nutrition Glucosamine Sulfate nationwide
because Walgreens negligently misrepresented the product, breached
the contract, and was unjustly enriched when it sold a product that
it labeled Glucosamine Sulfate when, in fact, it was Glucosamine
Hydrochloride.
The Plaintiff Theda Jackson-Mau is a citizen of New York. Ms.
Jackson-Mau resides in Brooklyn, New York.
The Defendant Walgreens is incorporated in Delaware with its
principal executive offices in Deerfield, Illinois. It is the
largest retail pharmacy company in the United States and Europe,
operating as Walgreens, Duane Reade, Boots, and Alliance
Healthcare. It also sells a portfolio of its own brands of
products, including Finest Nutrition brand dietary supplements.
[BN]
The Plaintiff is represented by:
Carl L. Stine, Esq.
Matthew Insley-Pruitt, Esq.
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
Tel: (212) 759-4600
WALGREEN CO: Morales Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against Walgreen Co. The case
is styled as Alfred Morales individually and on behalf of all
others similarly situated, Plaintiff v. Walgreen Co., an Illinois
Corporation, Does 1 to 50, Inclusive, Defendants, Case No.
CGC18570597 (Cal. Super. Ct., San Francisco, Oct. 16, 2018).
Walgreen Co. owns and operates drugstores in the United States. It
offers prescription drugs and refills, contact lenses, color
lenses, disposables, multifocal lenses, toric lenses, vial lenses,
solutions and drops, cases, and eye health supplements. The company
also provides beauty, diet and fitness products, home medical
supplies and equipment, medicines, products treatments, organic
natural product, seasonal products, sexual wellness, personal care,
vitamins and supplements, diet and fitness, and grocery
products.[BN]
The Plaintiff is represented by:
Ray R. Gallo, Esq.
WALMART INC: Drained Gift Cards Lead to Class Action Lawsuit
------------------------------------------------------------
John Matarese, writing for ABC 27 News, reports that every
Christmas, tens of millions of Americans receive gift cards. As
the year goes on, many of those people are finally getting around
to spending them, only to find those cards already used, drained of
all their value.
Now, Walmart has been hit with a Class Action lawsuit, claiming it
is not doing enough to prevent this growing scam.
Two years ago, Melissa Davis told me she bought a Visa gift card
for her daughter, that had no value when she tried to use it.
"I went to a local store, local grocery store, and purchased a Visa
gift card, a $100 Visa card," Davis said. " She waited about a
month, had her hair fixed, used the Visa for payment, and it came
up zero balance."
The $100 card was empty, leaving her daughter embarrassed, and her
mom livid. "I was a little upset. Very upset, when she told me,"
Davis said.
So she went back to the customer service desk, but she said, "they
were not very receptive to my dilemma."
We contacted Visa, which promised to investigate, and "make things
right" for her, by refunding the value of the card.
The Better Business Bureau says the most common way this happens
is:
-- Thieves cut open gift card packages discretely.
-- They copy the numbers, then put them back on the rack.
-- They check the card number daily online.- When the store
activates it, they start shopping. Sometimes they drain it before
you get it home.
Davis checked Visa's website and says the card appeared to have
been used to buy a cell phone. "They were able to use the card,
without the card, which was really interesting, because I didn't
think they could do that."
But they can use the card without having it in their possession,
which is why the BBB says always check gift cards for signs
indicating the cardboard cover was tampered with.
And it goes without saying you should always save the cash register
receipt showing that it was activated.
As for the new lawsuit, Walmart does not comment on litigation. So
it is up to you to look for any sign of tampering, so you don't
waste your money.[GN]
ZOE'S KITCHEN: Reigrod Suit Challenges Merger With Cava Group
-------------------------------------------------------------
JONATHAN REIGROD, Individually and on Behalf of All Others
Similarly Situated v. ZOE'S KITCHEN, INC., GREG DOLLARHYDE, KEVIN
MILES, THOMAS BALDWIN, SUE COLLYNS, CORDIA HARRINGTON, and ALEC
TAYLOR, Case No. 1:18-cv-01536-UNA (D. Del., October 4, 2018),
accuses the Defendants of violating the Securities Exchange Act of
1934, in connection with the proposed merger between Zoe's Kitchen
and Cava Group, Inc.
On August 16, 2018, the Company's board of directors caused the
Company to enter into an agreement and plan of merger with the Cava
Group, pursuant to which, Zoe's Kitchen shareholders will receive
$12.75 in cash in exchange for each share of common stock they own.
On September 25, 2018, the Board authorized the filing of a
materially incomplete and misleading preliminary proxy statement
with the Securities and Exchange Commission, in violation of the
Exchange Act, recommending shareholders vote in favor of the
Proposed Transaction, the Plaintiff contends.
Zoe's Kitchen is a Delaware corporation that maintains its
principal executive offices in Plano, Texas. The Individual
Defendants are directors and officers of the Company.
Zoe's Kitchen develops and operates fast-casual restaurants serving
a menu of Mediterranean-inspired dishes delivered with Southern
hospitality. The Company's menu offers meals made from scratch
using produce, proteins, and other ingredients, including its
appetizers, soups, salads, and kabobs. Its food, including both
hot and cold items, is suited for catering to a range of business
and social occasions. The Company caters to a range of dietary
needs by offering vegetarian, vegan, gluten-free, and its calorie
conscious, Simply 500 menu selections.
Cava Group is a private company that owns and operates a chain of
Greek and Mediterranean restaurants. Cava Group offers salads,
dips, spreads, toppings, and dressings. Cava Group has strategic
partnerships with Garden School Foundation, Sow Much Good, Urban
Roots, and Future Chefs. Cava Group was founded in 2010 and is
headquartered in Washington, District of Columbia.[BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Brandywine Building
1000 West Street, 10th Floor
Wilmington, DE 19801
Telephone: (302) 984-3800
E-mail: bbennett@coochtaylor.com
- and -
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
Facsimile: (212) 202-7880
E-mail: jmonteverde@monteverdelaw.com
*********
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
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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.
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